The pale cyst nematode (PCN, Globodera pallida ) is a major pest of potato crops in cool-temperature areas throughout the world, causing significant yield losses if left uncontrolled. Other hosts of this destructive pest include tomatoes, eggplants, peppers, and some weeds. The spread of PCN in the United States could result in a significant loss of domestic and foreign markets for U.S. potatoes and other host commodities.

Section 414 of the Plant Protection Act (PPA, 7 U.S.C. 7714) provides that the Secretary of Agriculture may, under certain conditions, hold, seize, quarantine, treat, apply other remedial measures to destroy or otherwise dispose of any plant, plant pest, plant product, article, or means of conveyance that is moving, or has moved into or through the United States or interstate if the Secretary has reason to believe the article is a plant pest or is infested with a plant pest at the time of movement.

On March 4, 2019, we published in the Federal Register (84 FR 7304-7306, Docket No. APHIS-2018-0041) a proposal  1 to amend the domestic quarantine regulations for PCN by adding procedures that allow persons to review and comment on the protocols for regulating and deregulating infested and associated areas. We took this action in response to a court order requiring the Animal and Plant Health Inspection Service (APHIS) to facilitate public input into the development of protocols for deregulating fields for PCN.

We solicited comments concerning our proposal for 60 days ending May 3, 2019. We reopened the comment period for 30 days ending July 26, 2019, 2 in response to commenters who experienced technical difficulties with accessing the protocols online.

One commenter stated that, in the proposed rule, we did not adequately include scientific support and source material for our confirmatory and deregulatory field protocols as mandated by the court order. To provide the public with an opportunity to review this material, we published another document  3 on June 5, 2020, in the Federal Register announcing a second reopening of the comment period for another 30 days, ending July 6, 2020. In that document, we explained the science underlying each of the field protocols and referenced the significant sources we consulted for developing them.

We received a total of 25 comments during the initial and reopened comment periods. They were from State agricultural officials, potato producers and producer organizations, agronomists, attorneys, and members of the public. A few comments we received expressed general agreement with the rule, while the remainder questioned or criticized specific provisions of the rule, the deregulation protocols, and PCN program activities. Some commenters raised topics concerning PCN program operations outside the scope of the proposal and deregulation protocols. We discuss the relevant comments we received below.

A few commenters stated that web links to the protocols, which we had included in the proposed rule and in a mailing sent to affected growers, were not connecting them to the protocol pages.

We acknowledge that the protocol links were not working during part of the initial comment period, so we reopened the comment period as noted above and provided working protocol links to ensure that stakeholders would have ample opportunity to comment.

One commenter asked that the proposed rule be republished, with the protocols included in the body of the rule.

As we made the protocols available for comment on Regulations.gov and the APHIS website throughout the reopened comment periods, we see no need for including them in a republished proposed rule. We also note that in the Federal Register document announcing the second comment period reopening, we included details of the scientific support and sources we used to develop the protocols.

We proposed revising § 301.86-3(c)(1), which designates fields with viable pale cyst nematodes present as being infested, by adding information for accessing the APHIS protocol for designation of infested fields in accordance with criteria established by the Administrator.

We also proposed revising § 301.86-3(d)(1) to read that an infested field will be removed from quarantine for PCN upon a determination that no viable PCN is detected in the field. We stated that the determination for removing the field from quarantine will be made in accordance with criteria established by the Administrator and sufficient to support removal of infested fields from quarantine, and that the removal criteria will be presented in an online deregulation protocol. 4 We also proposed revising paragraph (d)(2) for associated fields so that it refers to the deregulation protocol for those fields, also available online.

In paragraph (d)(4), we included the website address for accessing the infested and associated field deregulation protocols and indicated that any subsequent changes we make to them will be announced in a Federal Register notice and open to public comment. We proposed these changes to the regulations as a response to the court-mandated requirement that the deregulation protocols be publicly accessible and open to notice and comment in accordance with the Administrative Procedure Act.

Our proposed deregulation protocol for infested and associated fields includes a 3-year biosurvey. Two commenters representing State departments of agriculture disagreed with using the 3-year biosurvey (equivalent to 3 consecutive susceptible potato crops) to evaluate for deregulation of infested and associated fields. Both commenters stated that a 3-year biosurvey of infested fields fails to sufficiently mitigate the risk of PCN spreading to uninfested fields in Idaho and in the commenters' respective States. As support, both commenters cited the results of a study conducted in Norway showing that PCN cysts survived for 12 years in infested fields free of PCN host plants, and one cited a study from Northern Ireland claiming a 30-year survival period for PCN cysts in fields that were out of potato production for 42 years.

We are making no changes to the regulations based on the information provided by these commenters as they appear to be referring to an APHIS deregulation protocol no longer in use. Additionally, these commenters did not consider the effects of eradication treatments on infested fields, which shorten the survival period for PCN. As noted in the proposed rule, we originally included a 3-year deregulation biosurvey as part of an eradication program in a 2007 interim rulemaking  5 that quarantined certain areas of Idaho due to the presence of PCN. The biosurvey required planting PCN host crops in soil from an infested field, in a greenhouse, and sampling the soil for PCN following each of three crop cycles. Negative results for all three cycles would be necessary for APHIS to deregulate the field. In the 2007 interim rulemaking, this biosurvey was the sole criterion for deregulation of infested and associated fields.

However, in response to public comments and subsequent scientific input, we supplemented the 3-year biosurvey requirement with the in-field bioassay test for evaluating infested fields for deregulation. The in-field bioassay requires growing three susceptible host crops in a field with no detections of viable PCN following each crop. Under this current deregulation protocol, infested fields are required to pass a series of laboratory-based viability tests that take at least 3 years to complete. Once a field passes the laboratory-based tests, APHIS requires three host crops to be grown over the entire field while it remains under regulatory control. A field has met requirements for deregulation when full field surveys following each of the host crops are negative for viable PCN.

We do not dispute the studies cited by commenters that PCN cysts can remain viable for years in the absence of a host crop. However, we have determined that the current deregulation protocol, which requires growing a host crop in the field as part of the evaluation, will effectively detect and mitigate viable PCN and ensure that fields are not deregulated prematurely.

Another commenter objected to the deregulation protocol requirement that three potato crops be planted in “hot spots” (infestation foci) of a regulated field and that those spots be sampled for viable PCN cysts with each crop, even if the initial sampling of the field indicated no viable cysts. According to the commenter, his field revealed no cysts after APHIS conducted an initial sampling, and on those grounds questioned why a grower whose field showed no cysts after testing could not skip over the required iterations of “hot spot” planting and sampling, and instead move directly to the next phase of the protocol.

We are making no changes in response to the commenter. The deregulation protocol provides an alternate testing strategy when cysts are not detected in soil samples for use in laboratory-based tests. Three crops of potatoes over the entire area of the field or within the infestation foci can be substituted for the viability and greenhouse bioassay testing to achieve the same level of detection confidence as the laboratory and in-field bioassay tests together.

Two commenters stated that APHIS has been successful to date in delimiting the extent of PCN infestation in Idaho potato fields under the existing survey and sanitation requirements. Both commenters noted that several fields in Idaho are in the process of completing bioassays this production season that could make them eligible for removal from quarantine under the current deregulation protocol. They asked that APHIS make no bioassay protocol changes until the results of the third bioassay on these fields are determined after the growing season, and added that the results of these bioassays should be used to inform any future consideration of modifications to the bioassay protocol with respect to removal of quarantine status. If the results cast doubt on the ability of three bioassays to detect the presence of viable PCN cysts, they suggested that APHIS consider increasing the number of bioassays required for release from quarantine.

The current deregulation protocol is effective at detecting extremely small populations and APHIS is considering no changes to the bioassay at this time. The commenters are referring to several infested fields in Idaho being evaluated under the greenhouse bioassay to determine whether such fields are eligible to return to potato production. To date, no infested fields have met the testing requirements to be fully deregulated. At this stage in the eradication testing process, the fields remain regulated, with measures in place to mitigate the movement of soil off the field until or unless three crops of potatoes have been grown on the field and no viable nematodes are detected following harvest of each crop. If APHIS finds it necessary to change the deregulation protocol in the future, we would first provide the background and scientific basis for those changes and solicit public comment on the matter. Regardless of the deregulation method, if viable nematodes are detected in the bioassay of a particular field, the field will remain regulated.

A commenter stated that the infested field deregulation protocol includes “optional PCN program-sponsored eradication treatments” but that the protocol does not explain what these additional eradication treatments are and whether they are an option for APHIS or for the regulated entity. The commenter suggested that we clarify this explanation in a new proposed rule.

The optional PCN program-sponsored eradication treatments listed in the protocol documents are available at the option of regulated entities, as long as APHIS has sufficient funding and a ready supply of treatment materials. At present, the treatment options are the soil fumigant 1,3-dichloropropene (Telone II) and the trap crop Solanum sisymbriifolium (litchi tomato). We do not agree with the commenter's suggestion that a new proposed rule is necessary for explaining this information further.

A few commenters expressed concerns that practices required in the deregulation protocols could adversely affect the environment. One commenter stated that if PCN eradication treatments include a nematicide such as Telone II, additional environmental analysis should be undertaken regarding its use. Another commenter stated that in-field pressure washing, steam sanitation, soil sampling, and host and trap crop planting have environmental implications and noted that issuance of a final rule in the absence of an environmental analysis will violate the National Environmental Policy Act (NEPA, 42 U.S.C. 4321 et seq. ) and its implementing regulations.

We are making no changes in response to the commenters. This rule does not require such an analysis under NEPA requirements. The rule adds no provisions and makes no changes to the protocols themselves or how they are applied. We note, however, that we have conducted several environmental assessments  6 to evaluate the use of fumigants, trap crop planting, and other field treatments and mitigations with regard to PCN.

As noted above, we proposed revising § 301.86-3(d) to indicate that, as with infested fields, criteria for deregulating associated fields are included in a protocol available on the PPQ website. For associated fields remaining in host crop production, the deregulation protocol requires that two host crops be grown, each followed by a full field soil survey. If lab results are negative for PCN in both surveys, the field will be deregulated. Statistical analyses have shown that APHIS' delimiting survey rate of 8,000 cubic centimeters of soil (approximately 20 pounds (lbs) per acre) has a greater than 95 percent probability of detecting small populations of PCN after one host crop, and closer to 99 percent probability of detecting PCN after two host crops.

A commenter expressed concern about inconsistencies in how APHIS determines what land should be regulated for PCN and stated that he has never heard of a clear deregulation plan for associated fields where no nematodes have ever been found.

Complete deregulation protocols for infested and associated fields, including associated fields where no nematodes have been found, are available at https://www.aphis.usda.gov/planthealth/pcn. Under § 301.86-3(c)(2) of the regulations, APHIS may designate a field as an associated field if host crops have been grown in that field in the past 10 years and if the field came into contact with a regulated article from a PCN-infested field in the past 10 years. Included among the regulated articles listed in § 301.86-2 is any equipment or conveyance used in an infested or associated field that can carry soil if moved out of the field. Although we proposed no changes to these sections of the regulations, provisions for deregulating associated fields are included in the protocols and for this reason we are responding to comments we received regarding farm equipment and field quarantine status.

A commenter asked if potato seed farms should be regulated when they have an association with an infested field.

If a field used as a potato seed source is suspected of having or confirmed to have a PCN infestation, it will be regulated accordingly. Potato seed produced on a regulated field is considered to be a regulated article and as such is subject to movement restrictions. Any field that has come into contact with a regulated article (such as seed produced on an infested field) will be regulated as an associated field. Any fields that are identified as a seed source for an infested field will be prioritized for survey but are not included as part of the regulated area until or unless survey results are suspect or positive for PCN.

Under § 301.86-3(c)(2)(i) of the regulations, APHIS will designate a field as an associated field on the basis of adjacency when PCN host crops have been grown in the field in the last 10 years and the field borders an infested field. Although we proposed no changes to this paragraph, we are responding to comments received regarding field borders and regulatory status because the status of such fields is contingent on the deregulation protocol for associated fields.

To deregulate an associated field under this process, the field owner must establish a buffer zone of uncultivated ground at least 15 yards wide along the entire interface with the infested field. The buffer zone must include a physical barrier, such as a ditch, berm, or fence to discourage transfer of soil or other regulated articles between the two fields. The field must also meet the soil survey requirement for deregulation of an associated field. Establishing a field buffer zone is entirely voluntary for the owner of an adjacent field seeking to expedite the process to deregulate a field.

One commenter stated that the border buffer requirements constitute a taking of the neighbor's property and another commenter agreed, stating that farmers should be compensated for having to take land out of production for buffers. Another commenter noted instances in which APHIS required trenches or other barriers between fields on bordering farms even after a field was released from regulation and stated that barriers encroach on the land of innocent neighbors.

We disagree that establishing buffer zones to mitigate the spread of PCN between fields constitutes a taking of property, particularly as establishing such a zone in an associated field is voluntary on the part of the landowner. Creating an uncultivated buffer zone between an adjacent field and an infested field is a scientifically established means for expediting deregulation of the adjacent field before the infested field is deregulated.

We have made publicly available the deregulation protocols for fields no longer in host crop production and fields no longer in agricultural use. We received comments regarding the deregulation of such fields.

One commenter asked if a change in the use of regulated fields to non-agricultural use—such as for housing or pasture—would allow regulation of those fields to be lifted. Another commenter objected to APHIS continuing to designate a field as associated for PCN even though the property includes a home and grass lawn and is too small for growing a profitable host crop, and cysts have never been found there. The commenter asked whether a change in the use of the property to a non-agricultural use, such as a gravel pit, would be sufficient for APHIS to deregulate it. Another commenter cited the case of a homeowner who asked APHIS to remove land connected to his yard from associated field status but was told he would need to follow the deregulation protocol. The commenter suggested that APHIS allow growers to opt out of the deregulation program for a portion of their ground if they choose to subdivide the property for housing.

We are making no changes based on the comments. The protocols already include provisions for deregulating fields that will not return to host crop production and will transition to other uses such as residential or commercial development or pasture. The exact requirements for deregulating a field that has been taken out of host crop production depend upon the nature of the land's intended future use and the level of PCN risk in the field at the time of deregulation.

Another commenter asked if a former large farming operation on regulated fields now functioning as a hobby farm still needs to be regulated for PCN, particularly as the host crops grown are only sold locally.

As all regulated fields can pose a PCN risk, hobby farms established on regulated fields that produce host crops must follow the same deregulation protocol as large-scale agricultural fields remaining in commercial host crop production.

We received several comments regarding the soil sampling and testing procedures we use in the field deregulation protocols. We have established in the protocols specific soil sampling rates per acre, the findings of which are used to map the distribution and population of cysts in infested fields. Cysts discovered during sampling are tested for viability. 7

One commenter asked how we determined soil testing rates, noting that any rates determined from an agreement between the United States and Canada are not based on scientific testing rates.

While survey rates are often listed in agreements between countries, the rates themselves are based primarily on scientific research within APHIS and data from the scientific community.

A commenter asked if soil testing rates were determined by the Technical Working Group, noting that any rates based on the work of that group violate the District Court's order that APHIS may not rely upon the advice or recommendations of the Technical Working Group in any future actions.

As we noted in the document reopening the comment period for the proposal, the methodology for soil testing under the PCN program was drawn from scientific best practices and experience gained from our work in the APHIS Golden Nematode Program.

A commenter stated that our methods of proof of a PCN find are flawed, noting instances of fields where small numbers of nematodes were initially found but which subsequently disappeared without receiving any field treatments.

We disagree with the commenter that our methods for detecting PCN are flawed. The detection and subsequent absence of nematodes in a sample from an untreated field is not an unusual occurrence and cannot be ascribed to a problem with our methodology. Several factors can influence detection of PCN, including the aggregate distribution and infestation level of the pest in a field.

One commenter recommended that the protocol survey regimen of 40 lbs per acre on associated fields could be reduced to the European protocol of 1.28 lbs per acre. Another commenter stated that APHIS' soil sampling requirements for the deregulation protocol are 10 times the world standards and recommended that we use the world standard of 2 lbs maximum. Similarly, a commenter stated that since PCN is on the world eradication list, then Idaho should use the same lower level of soil testing that our trading partners use.

We are making no changes in response to the comments. APHIS' goal is to contain and eradicate PCN in Idaho to protect all U.S. growers from the yield losses experienced by growers in other countries that take different approaches to managing PCN. PCN is managed in Europe because it is endemic and widespread and therefore less intensive surveys are sufficient if the goal is management and not eradication. However, PCN populations in Europe continue to increase and seed potato acreages are reduced annually as a result. The purpose of this program is to ensure the same thing does not occur in the United States. We determined that the current soil testing procedures we use are necessary and appropriate to achieve program goals.

A commenter stated we did not indicate the soil depth at which field samples are to be collected for the deregulation protocol, resulting in uncertainty about APHIS' ability to mitigate the PCN risk. The commenter cited soil samples in Norway and Northern Ireland surveys that were taken at depths of 9 to 17 centimeters and 70 centimeters, respectively. Similarly, two other commenters expressed concern that the methods used to collect samples for testing in APHIS-approved laboratories are scientifically invalid because soil samples are only collected from the top 2 inches of the soil.

Soil samples are collected at the field surface; however, tillage and potato harvest practices in southeast Idaho thoroughly mix the top 30 centimeters (cm) of the soil profile. Therefore, subsequent surface sampling effectively represents the top 30 cm of the soil profile. We consider this soil sampling depth to be adequate to detect the presence of PCN in Idaho, the only State in which PCN is known to exist.

A commenter stated that the nematode soil extraction methods required by APHIS in PCN laboratories are expedited, causing very low recovery rates and further invalidating the confirmatory policy.

We are uncertain as to what specific problem the commenter is citing. APHIS follows extraction protocols based on best practices described in scientific literature, which include a minimum 2-week soil drying period and a quality-controlled laboratory environment in which the samples are processed.

Two commenters stated that growers should be able to have an independent lab conduct soil testing and compare their results with APHIS' findings, with one commenter expressing doubts about the reliability of DNA testing conducted by APHIS.

We do not prohibit a field operator or owner from employing independent PCN testing of their fields. However, we note that as soil in regulated fields is considered a regulated article, it cannot be moved from such fields without APHIS authorization. Moreover, soil testing can only be administered at APHIS-permitted facilities under methods approved by APHIS. For any third-party sampling effort to be recognized by APHIS as a valid comparison, we must provide oversight of field sampling and laboratory extraction to ensure APHIS protocols are followed.

A commenter requested that we no longer require tare dirt testing for exotic nematodes, adding that if APHIS does not require testing from our trading partners then APHIS should not be doing it domestically.

We are making no changes in response to the commenter. Tare soil sampling has never been a requirement of the APHIS PCN domestic program.

As a regulated article under § 301.86-2, farm equipment and conveyances used in an infested or associated field that can carry soil out of the field are subject to pressure washing and steam sanitation requirements. These requirements constitute part of the deregulation protocols for infested and associated fields.

A few commenters stated these requirements have resulted in damage to the paint and computer components of their farming equipment and requested that APHIS provide them with compensation for damages.

We acknowledge that in the past there have been instances in which sanitation measures necessary for mitigating PCN have impacted farming equipment. However, through years of experience we have developed and applied approaches to sanitizing equipment that minimize or prevent instances of damage.

A commenter stated that equipment sanitation requirements were burdensome because it takes time to sanitize equipment and APHIS will not verify completion in a timely way. One commenter recommended that APHIS employ two sets of equipment cleaning teams at earlier and later hours so the whole day is covered.

We are aware of the time and effort required of growers to fulfill the sanitation requirements but note that doing so is essential to mitigating the spread of PCN. We have worked to make it easier for growers to meet these requirements by expanding our hours of service and implementing a central hotline for requesting sanitation services and scheduling appointments after hours, Saturdays, and on Federal holidays.

Some commenters stated that APHIS is inconsistent and arbitrary in how it establishes and enforces PCN regulations with respect to moving equipment and conveyances in and out of regulated fields. One such commenter noted that straw and alfalfa can be moved off an infested field while combines and other equipment used for harvesting must undergo sanitation as a regulated article, and yet power company equipment and third-party vendors move vehicles in and out of quarantined fields without regulation. Another commenter stated that pressure washing and steam sanitation requirements for infested and associated fields are arbitrarily applied. The commenter stated that his organization has provided APHIS with evidence of arbitrary application, including failure of APHIS to require sanitation of non-farm vehicles and equipment entering regulated fields. Finally, a commenter stated, without providing details, that APHIS has allowed trucks to travel unimpeded in infested fields and onto public roads without being washed or inspected, although harvesters could not do the same.

We disagree with the commenters' contention that APHIS applies sanitation requirements for infested and associated fields ineffectively and arbitrarily. Sanitation and limited permitting are required and enforced for all equipment and vehicles that exit a regulated field. We pursue all reports we receive of equipment moved in violation of the requirements and take action when there is enough evidence to warrant it. We use all records and other information available to us to establish regulated areas and to enforce sanitation requirements for all equipment and vehicles, while recognizing that farm equipment poses the greatest risk for spreading PCN, given its exposure to soil and frequent movement between fields.

A commenter asked how many times a field can be re-associated with an infested field.

There is no limit to the number of times a field can be re-associated. The regulatory status of a field for PCN is dependent on that field meeting any of the criteria for designation of fields as associated fields in § 301.86-3(c)(2).

A commenter noted that a number of external environmental factors, including host plant root diffusates, soil temperature and moisture, soil oxygen, soil microorganisms, minerals, and organic substances can induce or influence cyst hatching, and asked why these options are not used in place of sanitizing equipment.

We acknowledge that these factors can influence cyst hatching but note they are currently in the research phase and not ready to be tried on a production scale. Moreover, the factors listed are not actually sanitizing agents but more allied with pest eradication practices. While we always seek new approaches to controlling pests, sanitation is required to adequately address the risk of spreading PCN on equipment used in infested fields.

One commenter expressed concerns about the difficulty of moving deregulated equipment between fields. The commenter noted an instance in which APHIS told a grower that it was a holiday and their grain combine would have to remain in the field for 3 to 4 days before it could be washed and released.

APHIS understands the impacts of the sanitation requirement on growers and works to minimize delays while still providing services at no cost to growers. We note that sanitation and inspection services have been made available to growers on Federal holidays since 2011. In 2012, we developed a self-certification option with program oversight so growers could work autonomously. Stakeholders have the option of entering into a compliance agreement enabling them to meet washing, inspection, and certification requirements themselves.

A commenter stated that pressure washing equipment on the edge of a regulated field creates muddy conditions, which actually enhances the movement of soil out of the field as the mud clings to the tires of the equipment.

The commenter has provided no evidence that APHIS washes equipment in such a way that enhances movement of soil on equipment. We note that APHIS has broad experience with ensuring that vehicles and equipment that have been in PCN regulated fields are washed appropriately.

According to one commenter, the proposed rule, economic analysis, and protocols violate the District Court's order that APHIS may not rely upon the advice or recommendations of the Technical Working Group in any future actions, including this rulemaking. The commenter noted that in the Court's 2018 Memorandum Decision and Order in Mickelsen Farms v. APHIS, there are many instances of APHIS' reliance on the recommendations and findings of the Technical Working Group in the development of the protocols. The commenter stated that the Technical Working Group recommended that farm implements used on any known infested field must be completely sanitized and noted that the deregulation protocols call for pressure washing and steam sanitation. The commenter also pointed out that the Technical Working Group recommended using stain viability assays on eggs, as does the infested field deregulation protocols. Finally, the commenter noted that the Technical Working Group recommended post-eradication treatment monitoring using fixed grid patterns, and the infested field protocol also calls for fixed grid pattern field sampling.

Although we disagree with the commenter's contention that the deregulation protocols were developed based on the work of the Technical Working Group, we acknowledge that the March 2019 proposed rule could have provided the public with a more detailed explanation to draw its own conclusions on this matter. For this reason, we reopened the comment period on the proposed rule a second time and provided in this June 2020 reopening document  8 additional information about the science and sources we used to develop the protocols. We have responded to comments addressing that information in this final rule.

One commenter said that we provided no evidence to support our statement in the proposal that unmanaged PCN infestations can cause potato yield losses of between 20 and 70 percent, adding that no yield losses have ever been documented as a result of PCN in the State of Idaho.

The percentage range we cited in the proposed rule collectively refers to potato yield losses from a few types of potato cyst nematodes, including PCN. Several studies from around the globe cite similar yield losses in countries where potato cyst nematodes have multiplied unchecked. 9 We note that no losses in potato yields have been documented for PCN in Idaho as in other countries because the infestation was detected and addressed before the pest level could reach the threshold for significant crop yield loss.

Several commenters suggested that APHIS should remove PCN from the U.S. and global quarantine lists.

There are currently 85 countries in addition to the United States that regulate G. pallida and 127 other countries that also regulate G. rostochiensis. Each of these countries determines its own import requirements for commodities entering their country. We agree with the regulatory and scientific communities that find PCN is capable of threatening Idaho  10 and the global potato industry with costs associated with managing unrestricted PCN populations.

Several commenters questioned the U.S. Department of Agriculture's (USDA's) ability to contain or eradicate PCN, citing instances in which viable nematodes have been dispersed broadly by wind, water, and animals.

While we acknowledge that water, wind, or animals are possible mechanisms for spreading PCN, our experience as well as scientific studies indicate that human-assisted spread is the primary mechanism for spreading PCN between fields. Natural PCN movement within soil, in contrast, has been shown to be generally no greater than 1-2 meters annually. 11 Although some infested fields in Idaho have been detected within close proximity to one another, all such fields to date have been shown to have a history of shared equipment or other human-assisted means of soil movement from another infested field.

We note, moreover, that APHIS regulates associated fields on the basis of adjacency to infested fields for the purpose of detecting any PCN spread by natural means. Our survey data have not supported that PCN is spread in Idaho by wind, water, or animals. APHIS has collected over half a million soil samples outside of infested fields, many from fields adjacent to infested fields, with no detections of PCN.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, without change.

This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. Copies of the full analysis are available on the Regulations.gov website (see footnote 1 in this document for a link to Regulations.gov) or by contacting the person listed under FOR FURTHER INFORMATION CONTACT .

According to the Small Business Administration, entities whose main activity is potato farming (classified under NAICS 111211) are considered small if they have $750,000 or less in annual receipts. Based on the 2017 Census of Agriculture, there were about 25,000 farms in Idaho, of which around 700 were considered to be primarily potato farms. Bingham and Bonneville Counties had 108 and 40 potato farms, respectively. There were about 1,800 farms in Idaho with farm sales greater than $500,000, of which around 1,070 farms had farm sales greater than $1 million. According to the 2017 Census, 108 of Bingham County's 1,177 farm operations (about 9 percent) had farm sales greater than $500,000, while Bonneville County, 40 of the 1,109 farm operations (about 4 percent) had farm sales greater than $500,000. Although the distribution of potato farms with farm sales above $500,000 (or $750,000) is not known, it is reasonable to conclude that many of the potato farms in northern Bingham and southern Bonneville Counties are small business entities.

However, the final rule would not impose new or additional burdens on small entities as this is an administrative action for which there would be no additional costs.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

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

This final rule contains no reporting, recordkeeping, or third party disclosure requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Accordingly, we are amending 7 CFR part 301 as follows:

On October 2, 2020 (85 FR 62199), the NRC published a direct final rule amending its regulations in appendix H, “Reactor Vessel Material Surveillance Program Requirements” (appendix H), to part 50 of title 10 of the Code of Federal Regulations (10 CFR), “Domestic Licensing of Production and Utilization Facilities,” to revise the NRC's reactor vessel material surveillance program requirements for commercial light-water reactors. The direct final rule revises the requirements in appendix H to 10 CFR part 50 associated with the testing of specimens contained within surveillance capsules and reporting the surveillance test results. The direct final rule also clarifies the requirements for the design of surveillance programs and the capsule withdrawal schedules for surveillance capsules in reactor vessels purchased after 1982.

In the direct final rule published on October 2, 2020, the NRC stated that if no significant adverse comments were received, the direct final rule would become effective on February 1, 2021. The NRC received and docketed two comment submissions on the companion proposed rule (85 FR 62234; October 2, 2020). Electronic copies of the comments can be obtained from the Federal Rulemaking website at https://www.regulations.gov under Docket ID NRC-2017-0151 and are also available in ADAMS under Accession Nos. ML20301A624 and ML20308A229, respectively.

The NRC determined that the two comment submissions addressed issues that were outside the scope of the direct final rule or were not significant nor adverse. One comment submission questioned (1) the use of Charpy V-notch testing procedures, (2) the subsequent license renewal and extended power uprate for Turkey Point Nuclear Generating Units 3 and 4, (3) the use of Integrated Surveillance Programs, and (4) the timing associated with specimen testing and capsule report submittal. With respect to the items 1-3, these issues are outside the scope of this direct final rule. While item 4 is within the scope of the direct final rule, the NRC determined that the comment was not significant nor adverse. The other comment submission is outside the scope of this direct final rule. Therefore the direct final rule will become effective as scheduled.

The direct final rule contains a new or amended collection of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). The collections of information were approved by the Office of Management and Budget (OMB), approval number 3150-0011.

The NRC may not conduct or sponsor, and a person is not required to respond to a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0153, dated July 10, 2020 (EASA AD 2020-0153) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain Airbus Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-211, -212, -214, -215 -216, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. EASA AD 2020-0153 superseded EASA AD 2014-0177, dated July 25, 2014 (which corresponds to FAA AD 2016-07-14, 39-18459 (81 FR 21244, April 11, 2016) (AD 2016-07-14)). Model A320-215 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.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2016-07-14. AD 2016-07-14 applied to certain Airbus Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. The NPRM published in the Federal Register on October 1, 2020 (85 FR 61892). The NPRM was prompted by fatigue testing that determined that fatigue damage could appear on clips, shear webs, and angles at certain rear fuselage sections and certain frames. The NPRM proposed to retain the actions of AD 2016-07-14, and require modifying (replacing) the clips, shear webs, and angles at a certain rear fuselage area with new parts, as specified in EASA AD 2020-0153. The NPRM also proposed to apply to additional airplanes subject to the unsafe condition.

The FAA is issuing this AD to address fatigue damage on the clips, shear webs, and angles, which could affect the structural integrity of the airplane. See the MCAI for additional background information.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA has considered the comments received. United Airlines and an anonymous commenter indicated their support for the NPRM.

The FAA reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule as proposed, except for minor editorial changes. The FAA has determined that these minor changes:

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

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

EASA AD 2020-0153 describes procedures for replacement of affected parts (as required by FAA AD 2016-07-14). EASA AD 2020-0153 also describes procedures for a modification by replacing the clips, shear webs, and angles at the rear fuselage area of section 19 at frame 72 and frame 74 with new parts without pilot holes, and installing oversized Hi-Loks, nominal aluminum rivets, and nominal Hi-Loks in certain positions. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 219 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 75-16-20, Amendment 39-2294 (40 FR 31751, July 29, 1975) (AD 75-16-20). AD 75-16-20 applied to all Mitsubishi Heavy Industries, Ltd. (Mitsubishi) Models MU-2B, MU-2B-10, MU-2B-15, MU-2B-20, MU-2B-25, MU-2B-26, MU-2B-30, MU-2B-35, and MU-2B-36 airplanes. The NPRM published in the Federal Register on August 25, 2020 (85 FR 52281). The NPRM was prompted by reports of the PPC lever linkages disconnecting at the engine and Mitsubishi developing a secondary retention feature to secure the PPC. The NPRM was also prompted by Mitsubishi type certificating additional airplanes that are subject to the unsafe condition. In the NPRM, the FAA proposed to require installation of the secondary retention feature, repetitive inspections of the PPC lever linkage, and reporting inspection results to the FAA.

The FAA received no comments on the NPRM or on the determination of the costs.

The FAA reviewed the relevant data and determined that air safety requires adoption of the AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the NPRM.

Mitsubishi has issued MU-2 Service Recommendation No. 049/76-002, dated June 29, 2018, and MU-2 Service Recommendation No. 080, dated June 29, 2018. This service information specifies procedures for installing a PPC lever secondary retention feature to secure the PPC lever. These documents are distinct since they apply to different airplane models and configurations.

Mitsubishi has also issued MU-2 Service Bulletin No. 106/76-004, dated February 24, 2016, and MU-2 Service Bulletin No. 244, dated December 25, 2015. This service information specifies procedures for replacing the PPC lever clamping bolt. These documents are distinct since they apply to different airplane models and configurations.

Honeywell International Inc. has issued Service Bulletin TPE331-72-2190, Revision 0, dated December 21, 2011. The procedures in this service information include instructions for incorporating a threaded hole in the splined end of the shouldered shaft of the PPC assembly and re-identifying the shouldered shaft part number. The threaded hole is used to accommodate a secondary retention method to secure the PPC lever.

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 .

The FAA estimates that this AD affects 260 airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD. The average labor rate is $85 per work hour.

The FAA estimates the following costs to do any necessary on-condition actions for the incorporation of the threaded hole and reporting requirement. The FAA has no way of determining the number of aircraft that might need these on-condition actions:

If the PPC lever detaches, the necessary corrective actions could vary significantly from airplane to airplane. The FAA has received no definitive data that would enable estimating the cost to install the PPC lever on each airplane or the number of airplanes that may require this action.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a 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 currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden 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 has determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

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

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

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

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

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E airspace extending upward from 700 feet above the surface at Trenton Municipal Airport, Trenton, MO, to support instrument flight rule operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (85 FR 53310; August 28, 2020) for Docket No. FAA-2020-0750 to amend the Class E airspace extending upward from 700 feet above the surface at Trenton Municipal Airport, Trenton, MO. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 amends the Class E airspace extending upward 700 feet above the surface to within a 6.4-mile radius of Trenton Municipal Airport, Trenton, MO, and removes the Trenton NDB and associated extensions from the airspace legal description; and updates the geographic coordinates of the airport to coincide with the FAA's aeronautical database.

This action is due to an airspace review caused by the decommissioning of the Trenton NDB, which provided navigation information for the instrument procedures at this airport.

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

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code (U.S.C.). Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the Class D airspace, establishes Class E airspace to support IFR operations at Hayward Executive Airport under standard instrument approach and departure procedures at the airport, for the safety and management of aircraft within the National Airspace System. Additionally, an editorial change is being made to the legal description replacing “Airport/Facility Directory” with the term “Chart Supplement” and updating the name of the airport to match the FAA aeronautical database.

The FAA published a notice of proposed rulemaking in the Federal Register (85 FR 57170; September 15, 2020) for Docket No. FAA-2020-0766 to amend the Class D surface airspace, establish a Class E surface area and establish a Class E extension to the Class D and Class E surface areas in support of IFR operations. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One substantive comment was received from an anonymous contributor. The commenter was concerned with the impact an expansion of .5 miles to the Class D would have on controller workload and traffic navigating on the flyway to the west of the Hayward class D. The FAA agrees. The expansion to the Class D was proposed to accommodate expanded circling criteria and update the airspace to the higher standard. However, because the procedures at Hayward have not yet been upgraded the FAA will review the procedures and see if a more acceptable approach can be identified when the circling is updated to include expanded circling. Therefore, the Class D and Class E airspace extending upward from the surface is established within 3.5 miles of Hayward Executive Airport excluding the portion in the Metropolitan Oakland Airspace. In addition, the portion 1.8 miles each side of the 119° bearing is eliminated, as it is no longer needed.

Class D and Class E airspace designations are published in paragraph 5000, 6002 and 6004 of FAA Order 7400.11E, dated July 21, 2020 and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is amending 14 CFR part 71 by removing the Class D extension 1.8 miles each side of the 119° bearing to the southeast, as it is no longer needed for operations.

Class E airspace extending upward from the surface is established within 3.5 miles of Hayward Executive Airport excluding the portion that extends into Metropolitan Oakland International Airport Airspace. These lateral dimensions match the Class D lateral boundary. This provides improved safety for operations within this area when the Airport Traffic Control Tower is not staffed.

Class E airspace as an extension to the Class D and Class E surface areas is established to capture aircraft as they descend through 1,000 feet AGL outside the lateral dimensions of the surface area, while using the RNAV Approach to runway 28L.

In addition, the term Airport Facility/Directory is replaced with Chart Supplement and the name of the Hayward Executive Airport and the geographical coordinates for both Hayward Executive Airport and Metropolitan Oakland International Airport are updated to match the FAA's National Airspace System Resource (NASR) database.

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

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

The Commission is revising its delegations of authority to the Director of the Division of Enforcement as a result of its experience with its nonpublic investigations, litigation in Federal court, and disgorgement and Fair Fund plans in administrative and cease-and-desist proceedings instituted by the Commission. The revisions are intended to conserve Commission resources and make Commission operations more efficient. Congress has authorized such delegation by Public Law 87-592, 76 Stat. 394, 15 U.S.C. 78d-1(a), which provides that the Commission “shall have the authority to delegate, by published order or rule, any of its functions to . . . an employee or employee board, including functions with respect to hearing, determining, ordering, certifying, reporting, or otherwise acting as to any work, business or matter.”

The Commission is authorized to bring actions in United States District Court seeking injunctive and other relief for violations of the Federal securities laws and regulations. See Section 20(b) of the Securities Act of 1933 (15 U.S.C. 77t(b)); Section 21(d)(1) of the Securities Exchange Act of 1934 (15 U.S.C. 78u(d)(1)); Section 42(d) of the Investment Company Act of 1940 (15 U.S.C. 80a-41(d)); Section 209(d) of the Investment Advisers Act of 1940 (15 U.S.C. 80b-9(d)). With respect to Federal court litigation, the Commission routinely authorizes its staff to commence litigation against particular parties seeking particular relief. The addition of 17 CFR 200.30-4(a)(18) will allow the Director to carry out these authorizations more efficiently by taking the following actions: (i) Dismissing claims against entities that are defunct, the subject of bankruptcy proceedings, or without material assets; and (ii) dismissing claims against persons or entities that are duplicative of other pending claims against those persons or entities.

The Commission is authorized to conduct investigations concerning potential violations of the Federal securities laws and regulations and, as part of those investigations, to require the production of records. See Section 19(c) of the Securities Act of 1933 (15 U.S.C. 77s(c)); Section 21(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78u(b)); Section 42(b) of the Investment Company Act of 1940 (15 U.S.C. 80a-41(b)); Section 209(b) of the Investment Advisers Act of 1940 (15 U.S.C. 80b-9(b)). Pursuant to Section 21(h)(4)(A) of the Securities Exchange Act of 1934, (15 U.S.C. 78u(h)(4)(A)), United States District Courts are authorized to issue orders delaying prior notice of a subpoena for records subject to the Right to Financial Privacy Act (12 U.S.C. 3401 et seq. ) and prohibiting financial institutions from disclosing that records have been sought or obtained. The addition of 17 CFR 200.30-4(a)(19) will authorize the Director to file applications in United States District Court with respect to such orders.

The Commission is authorized to deny, suspend the effective date of, suspend for a period not exceeding 12 months, or revoke the registration of a security if the Commission finds, on the record after notice and opportunity for hearing, that the issuer of the security has failed to comply with the Federal securities laws or regulations. See Section 12(j) of the Securities Exchange Act of 1934 (15 U.S.C. 78 l (j)). The Commission also is authorized to suspend trading in any security (other than an exempted security) for a period not exceeding ten business days if, in its opinion, the public interest and protection of investors so require. See Section 12(k)(1)(A) of the Securities Exchange Act of 1934 (15 U.S.C. 78 l (k)(1)(A)). The addition of 17 CFR 200.30-4(a)(20) will authorize the Director to institute public administrative proceedings pursuant to Section 12(j) with respect to a security based on the issuer's alleged failure to file required periodic reports and, in connection with the institution of such proceedings, issue an order pursuant to Section 12(k)(1)(A).

In administrative and cease-and-desist proceedings instituted by the Commission to enforce the Federal securities laws, the Commission, in the exercise of its discretion, may distribute to investor victims amounts collected as disgorgement, prejudgment interest, and civil money penalties. See Section 308 of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7261). The addition of § 200.30-4(a)(21) will improve the efficiency of the Commission's distribution processes by authorizing the Director to: (i) Grant extensions of time to submit proposed distribution plans to the Commission; (ii) appoint tax administrators, pursuant to a Commission-approved omnibus order; (iii) publish notice of proposed plans, including plans that omit elements required by 17 CFR 201.1101, Rule 1101 of the Commission's Rules on Fair Fund and Disgorgement Plans; (iv) issue orders adopting plans as to which no negative comments have been received; (v) approve disbursements to investors in accordance with the plans; (vi) approve payment of the fees and expenses of administration; and (vii) approve final fund accountings.

The Division of Enforcement will report periodically to the Commission on the Director's use of these delegations. Notwithstanding these delegations, the Director may submit any matter he or she believes appropriate to the Commission. Furthermore, any action taken by the Director pursuant to delegated authority is subject to Commission review as provided by 17 CFR 201.430 and 201.431 and 15 U.S.C. 78d-1(b), Rules 430 and 431 of the Commission's Rules of Practice.

The Commission finds, in accordance with the Administrative Procedure Act (“APA”), that this amendment relates solely to agency organization, procedure, or practice. Title 5 U.S.C. 553(b)(3)(A). Accordingly, the APA's provisions regarding notice of rulemaking and opportunity for public comment are not applicable. These changes are therefore effective on December 29, 2020. In accord with the APA, we find that there is good cause to establish an effective date less than 30 days after publication of these rules. 5. U.S.C. 553(d). These rules do not substantially affect the rights or obligations of non-agency parties and pertain to increasing efficiency of internal Commission operations. For the same reasons, the provisions of the Small Business Regulatory Enforcement Fairness Act are not applicable. See 5 U.S.C. 804(3)(C) (the term “rule” does not include “any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties”). Additionally, the provisions of the Regulatory Flexibility Act, 5 U.S.C. 60 et seq., which apply only when notice and comment are required by the APA or other law, are not applicable. See 5 U.S.C. 601(2). These amendments do not contain any collection of information requirements as defined by the Paperwork Reduction Act of 1995. See 5 CFR 1320.3. Further, because these amendments impose no new burdens on private parties, the Commission does not believe that the amendments will have any impact on competition for purposes of Section 23(a)(2) of the Exchange Act. 15 U.S.C. 78w(a)(2).

This rule is adopted pursuant to statutory authority granted to the Commission, including Section 19 of the Securities Act, 15 U.S.C. 77s; Sections 4A, 4B, and 23 of the Exchange Act, 15 U.S.C. 78d-1, 78d-2, and 78w; Section 38 of the Investment Company Act, 15 U.S.C. 80a-37; Section 211 of the Investment Advisers Act, 15 U.S.C. 80b-11; and Section 3 of the Sarbanes-Oxley Act, 15 U.S.C. 7202.

For the reasons set out in the preamble, the Commission is amending title 17, chapter II of the Code of Federal Regulations as follows:

Background TTB Authority

The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers regulations setting forth standards of fill for containers of wine and distilled spirits products distributed within the United States. For wine, the authority to establish these standards is based on section 105(e) of the Federal Alcohol Administration Act (FAA Act), codified at 27 U.S.C. 205(e), which authorizes the Secretary of the Treasury to prescribe regulations relating to the “packaging, marking, branding, and labeling and size and fill” of alcohol beverage containers “as will prohibit deception of the consumer with respect to such products or the quantity thereof * * *.” For distilled spirits, the authority to establish standards of fill is based on two provisions of law: (1) Section 205(e) of the FAA Act as discussed above, and (2) section 5301(a) of the Internal Revenue Code of 1986 (IRC), codified at 26 U.S.C. 5301(a). Section 5301(a) of the IRC authorizes the Secretary of the Treasury to prescribe regulations “to regulate the kind, size, branding, marking, sale, resale, possession, use, and reuse of containers (of a capacity of not more than 5 wine gallons) designed or intended for use for the sale of distilled spirits * * *” when the Secretary determines that such action is necessary to protect the revenue. TTB administers these IRC and FAA Act provisions pursuant to section 1111(d) of the Homeland Security Act of 2002, as codified at 6 U.S.C. 531(d). In addition, the Secretary of the Treasury has delegated certain administrative and enforcement authorities to TTB through Treasury Order 120-01.

The standards of fill for wine are contained in subpart H of part 4 of the TTB regulations (27 CFR part 4). The term “standard of fill” is used in the TTB regulations and in this document to refer to the authorized amount of liquid in the container, rather than the size or capacity of the container itself. For better readability, however, this document sometimes uses the terms “size” or “container size” and “standards of fill” interchangeably. Within subpart H, paragraph (a) of § 4.72 (27 CFR 4.72(a)) authorizes the use of the following metric standards of fill for containers other than those described in paragraph (b) of that section:

• 3 liters;

• 1.5 liters;

• 1 liter;

• 750 milliliters;

• 500 milliliters;

• 375 milliliters;

• 187 milliliters;

• 100 milliliters; and

• 50 milliliters.

Paragraph (b) of § 4.72 states that wine may be bottled or packed in containers of 4 liters or larger if the containers are filled and labeled in quantities of even liters (4 liters, 5 liters, 6 liters, etc.).

Requirements for headspace, the empty space between the top of the wine and the top of the container, are also contained in subpart H of 27 CFR part 4. Within subpart H, paragraph (a)(3) of § 4.71 (27 CFR 4.71(a)(3)) states that a standard wine container must be made and filled so as to have a headspace not in excess of 6 percent of the total capacity of the container after closure if the net content of the container is 187 milliliters or more and, in the case of all other wine containers, a headspace not in excess of 10 percent of such capacity.

The standards of fill for distilled spirits are contained in subpart E of part 5 of the TTB regulations (27 CFR part 5). Within subpart E, paragraph (a)(1) of § 5.47a (27 CFR 5.47a(a)(1)) specifies the following metric standards of fill for containers other than those described in paragraph (a)(2) of that section:

• 1.75 liters;

• 1 liter;

• 750 milliliters;

• 500 milliliters (authorized only until June 30, 1989);

• 375 milliliters;

• 200 milliliters;

• 100 milliliters; and

• 50 milliliters.

In the case of distilled spirits in metal containers that have the general shape and design of a can, that have a closure which is an integral part of the container, and that cannot be readily reclosed after opening, paragraph (a)(2) of § 5.47a authorizes the use of the following metric standards of fill:

• 355 milliliters;

• 200 milliliters;

• 100 milliliters; and

• 50 milliliters.

In addition to the metric standards specified above, § 5.47a contains provisions regarding tolerances (discrepancies between actual and stated fill), unreasonable shortages in fill, and distilled spirits bottled or imported before January 1, 1980, and marketed or released from customs custody on or after that date (the date on which the U.S. volumetric standards were replaced by the § 5.47a metric standards, as discussed in more detail below).

Requirements for headspace are contained in 27 CFR 5.46(b), which states that a standard liquor bottle of a capacity of 200 milliliters or more shall be held to be misleading if it has a headspace in excess of 8 percent of the total capacity of the bottle after closure.

Unlike wine and distilled spirits, there are no standards of fill prescribed for malt beverages under the FAA Act. However, in the case of malt beverages, § 7.22(a)(4) of the TTB regulations (27 CFR 7.22(a)(4)) requires the display of net contents on the brand label as mandatory label information.

On July 1, 2019, TTB published Notice Nos. 182 and 183 in the Federal Register (84 FR 31257 and 84 FR 31264).

Notice No. 182 proposed to eliminate all but a minimum standard of fill for wine containers. The minimum container size was retained to ensure the container would be of sufficient size to accommodate required labeling. The notice also proposed, in response to a petition, to increase the minimum headspace from not in excess of 10 percent of the container's capacity to not in excess of 30 percent for clear containers 100 milliliters or less. Finally, TTB also sought comments on alternatives to eliminating the standards of fill, including authorizing some or all of the petitioned-for sizes that were discussed in the notice, and developing an expedited administrative process for adding new standards in the future.

Notice No. 183 proposed to eliminate all but minimum and maximum standards of fill for distilled spirits. Retaining the minimum was proposed to ensure the container would be of sufficient size to accommodate required labeling, while the maximum maintains the distinction between bottled and bulk products. The FAA Act at 27 U.S.C. 206(c) establishes a bulk distilled spirits container as one having a capacity in excess of one wine gallon, while paragraphs (a) and (b) of section 206 do not permit the retail sale of distilled spirits in bulk containers to consumers.

In Notice No. 183, TTB also proposed to amend the labeling regulations for distilled spirits and malt beverages to reflect current policy by specifically stating that distilled spirits may be labeled with the equivalent standard U.S. measure in addition to the mandatory metric measure, and that malt beverages may be labeled with the equivalent metric measure in addition to the mandatory U.S. measure. Similar labeling is authorized for wine labels in 27 CFR 4.37(b) and has been authorized for distilled spirits and malt beverage labels as a matter of policy, but has not been explicitly stated in the distilled spirits and malt beverage regulations.

As in Notice No. 182, in Notice No. 183 TTB also sought comments on alternatives to eliminating the standards of fill, including authorizing some or all of the petitioned-for sizes that were discussed in the notice, and developing an expedited administrative process for adding new standards in the future.

In Notice Nos. 182 and 183, TTB provided reasons for proposing the elimination of the standards of fill, including the following:

1. It would address several petitions TTB had received on this issue, would eliminate the need for industry members to petition for additional authorizations if marketplace conditions favor different standards in the future, and would eliminate restrictions on competition and the movement of goods in domestic and international commerce.

2. It would address concerns that the current standards of fill unnecessarily limit manufacturing options and consumer purchasing options, particularly where consumers may seek smaller containers to target a specific amount of consumption.

3. TTB believed that the current and proposed labeling requirements regarding net contents (see 27 CFR 4.32(b)(2) and 4.37, 27 CFR 5.32(b)(3) and 5.38) and those regarding the design and fill of containers (see 27 CFR 4.71 and 27 CFR 5.46) provide consumers with adequate information about container contents, so standards of fill are not necessary to prevent consumer confusion.

4. Limiting standards of fill is no longer necessary to ensure accurate calculation of tax liabilities or to protect the revenue.

5. TTB's current experience with malt beverages, for which there is no Federal standard of fill requirement, shows no disproportionate level of revenue compliance or consumer deception issues related to bottle sizes.

The comment periods for Notice Nos. 182 and 183 originally closed on August 30, 2019, but TTB reopened and extended the comment periods at the request of commenters (see Notice No. 184, 84 FR 39786). The extended comment periods ended October 30, 2019. Because Notice Nos. 182 and 183 proposed similar regulatory amendments and the substance of the comments received were similar, TTB is finalizing the two notices in one final rule.

TTB received 644 comments in response to Notice No. 182 and 603 comments in response to Notice No. 183, for a total of 1,247 comments. Commenters included producers, wholesale distributers, retailers, trade associations (domestic and foreign), members of Congress, foreign government entities, and members of the public.

TTB also considered 79 comments concerning standards of fill that were submitted in response to Notice No. 176, Modernization of the Labeling and Advertising Regulations for Wine, Distilled Spirits, and Malt Beverages, published in the Federal Register (83 FR 60562) on November 26, 2018. When these additional comments are taken into account, TTB reviewed 1,326 comments regarding standard of fill issues as summarized below.

Of the 1,326 comments TTB received, 1,251 comments address the proposed elimination of the standards of fill. A total of 110 comments support the proposal—40 comments to Notice No. 182, 40 comments to Notice No. 183, and 30 comments to Notice No. 176. Of the 1,141 comments opposed to eliminating the standards of fill—575 commenters to Notice No. 182, 560 commenters to Notice No. 183, and 6 comments to Notice No. 176—960 are nearly identical form letters, a majority of which are associated with three wholesale distributing companies and their employees.

Commenters supporting the elimination of the standards of fill generally state that the standards are unnecessary, restrictive to producers, and out-of-date. They note that there are no standards of fill for malt beverages or for other consumer products, and state that this does not cause difficulties. They contend that eliminating the standards of fill will result in lower costs for producers, will facilitate international trade, and will provide consumers with more options in beverage alcohol packaging. The American Craft Spirits Association (Notice No. 183, comment 78) states that it surveyed its membership concerning the rulemaking and “found overwhelming support for elimination of the current standards.” It adds that “[i]n order to promote innovation within the industry and competitively enter products into the global marketplace, smaller spirits producers must have maximum flexibility to quickly meet consumer demand as well as diverse regulatory standards.”

Several of the wine commenters who support elimination of the standards of fill cite the fact that they are unable to use certain can sizes to package wine because they are not among the authorized standard sizes. For example, Senator Charles Schumer (Notice No. 182, comment 12) cites the inability of New York wineries to package their wine in 250 milliliter and 355 milliliter cans as grounds for eliminating the standard of fill regulations. The Senator argues that these sizes are popular single serving sizes that are readily available to producers since they are already mass produced for beer and soda.

Commenters opposing the elimination of the standards of fill cite a number of reasons to retain the standards. The most often cited argument is that the standards of fill prevent consumer confusion. For example, commenters state that eliminating the standards of fill will cause a proliferation of sizes, making it difficult for consumers to compare prices on similar products. The Wine Institute (Notice No. 182, comment 162) states “consumers may not be able to tell the difference between a 750 milliliter wine bottle and a 700 milliliter bottle, which could create an opportunity for producers to reduce costs and taxes while not necessarily reducing their prices. The current federal standards of fill allow consumers to shop by cost comparison without needing to calculate the price per milliliter.”

A handful of commenters cite the European Union's (EU) experience prior to 1990, when it had no standards of fill for distilled spirits. Drinks Ireland (Notice No. 183, comment 77) states that without standards of fill the market situation was “complex, expensive, and confusing for consumers.” The American Distilled Spirits Association (Notice No. 183, comment 111), citing comments submitted in response to the Bureau of Alcohol, Tobacco and Firearm's 1987 Advance Notice of Proposed Rulemaking (Notice No. 633, June 24, 1987, 52 FR 23685) on standards of fill, notes that the EU's lack of standards resulted in “a confusing array of bottle sizes being sold side-by-side on retail shelves creating an environment ripe for consumer confusion.”

A number of commenters state that eliminating the standards of fill is inconsistent with the FAA Act. A letter signed by 52 members of the Congressional Wine Caucus states it would “run directly counter to TTB's stated mission of prohibiting consumer deception” (Notice No. 182, comment 168). Similar comments include that of the Wine Institute, which comments that eliminating the standards of fill “would lead to the chaotic consumer marketplace that the FAA Act was intended to prevent.” Six industry associations filing jointly (Notice No. 183, comment 108) state that retaining the standards of fill is consistent with TTB's statutory authority under the FAA Act to protect consumers.

Opposing comments also argued that eliminating the standards of fill will result in conflicting State requirements. These commenters report that a number of States defer to the Federal standard of fill requirements, so elimination could result in a patchwork of different State rules. The Congressional Wine Caucus states: “38 states defer to the federal standard and if it is eliminated, these states will be forced to enact new container size requirements. This will create serious disruption to business as wineries would have to overhaul their sales, marketing, and compliance models to adjust to 38 varying state regulations.”

No State entity submitted comments to either notice, although TTB did request comments in Notice Nos. 182 and 183 from State regulators on whether the proposal would present regulatory issues at a State level. However, TTB did receive a comment from the National Alcohol Beverage Control Association (NABCA), which represents jurisdictions, including States, which directly control the distribution and sale of beverage alcohol within their borders. NABCA (Notice No. 182, comment 64; Notice No. 183, comment 55) opposes the elimination of the standards of fill and comments that the States currently using the Federal standards will enact new standard of fill requirements that could be different in each State.

Numerous commenters state that a proliferation in sizes will cause harm to distributors and retailers. According to many of these commenters, more sizes will result in additional SKUs, which will increase costs for these industry members. Southern Glazer's Wine & Spirits (Notice No. 183, comment 66) states that the increase in SKUs “will have cascading economic ramifications throughout the entire value chain—from supplier to wholesaler to retailer to the end consumer. It will require major wholesalers, for example, to invest in elevated inventory levels, enhanced material handling capabilities, and increased storage space.” The California Grocers Association (Notice No. 182, comment 169) states that “Eliminating the regulation on standard wine and spirits sizes will increase our costs,” and provides examples relating to such things as shelf space and inventory.

Opponents also contend that eliminating the standards of fill will cause an increase in counterfeit and gray market imports that are currently prevented because the standards do not include some common international sizes, most specifically the 700 milliliter size. A large number of commenters state that adulterated products could more easily enter the country, resulting in injury and possibly death to consumers. This concern is expressed by Moët Hennessy USA, Inc. (Notice No. 183, comment 100) in its comment: “* * * we wish to express a serious concern that will be impacted by changes to the existing standards—unauthorized importation of distilled spirits and wine products * * *. Allowing unauthorized imports robs Moët Hennessy USA and other authorized importers of the opportunity to protect against those risks and to ensure that our products are being sold in the intended state and manner. U.S. consumers should never face the risk of injury or death due to untraceable adulterated or counterfeit product brought in by an unauthorized importer.”

Finally, a few commenters argue that malt beverages are different in meaningful ways from wine and distilled spirits, and the fact that there are no standards of fill for malt beverages does not imply that there should not be standards of fill for wine and distilled spirits. These commenters state that because of historical practices consumers have different expectations for malt beverages than they do for wine and spirits. Additionally, Sazerac (Notice No. 183, comment 67) reports that a number of States mandate specific standards of fill for malt beverages, which it argues has driven standardization nationally. Heaven Hill Brands (Notice No. 183, comment 96) notes that in most states malt beverage distributors have the ability to distribute directly. It contends that “[t]his direct distribution by suppliers allows for more flexibility in size due to fewer limitations resulting from a distributor's management of malt beverage inventory. Distilled spirits, however, must go through the distributor tier and have a much longer shelf life creating long periods of storage.”

Both Notice Nos. 182 and 183 stated that TTB was also considering maintaining the standards of fill, but “liberalizing the existing regulatory scheme” by adding certain additional standards of fill. In the respective notices, TTB listed sizes for which it had received a petition as 200, 250, 355, 620, and 700 milliliters and 2.25 liters for wine, and 700, 720, 900 milliliter and 1.8 liters for distilled spirits. A large number of commenters expressed support for the addition of specific petitioned-for sizes as follows:

Wine—250 milliliter: This size was supported by 51 commenters. Proponents of this size note that some wines are currently being sold in aggregate packages of four 250 milliliter cans, which together equal one liter, an authorized standard of fill. Industry members state that the 250 milliliter is popular with consumers as a single serving size, with some further stating that this size promotes portion control and responsible drinking. In his comment, Senator Schumer states that “a recent wine consumer survey by WICResearch.com concluded that `the total wine market will grow in order to satisfy consumer preferences,' if TTB permitted sales of wine-in-a-can in a single 250 milliliter size, which the survey revealed is the single-serve size most popular with consumers.” Wine Institute notes that 250 milliliter containers are “ideal serving containers for consumption at certain licensed venues such as stadiums, parks and other locations where glass or larger containers are not viable,” and retailers wish to sell them individually in such venues.

Some commenters report that retailers often separate the containers from the aggregate packages, causing trade enforcement issues at the State level. To remedy this, these commenters recommend TTB approve the 250 milliliter size as an authorized standard of fill.

Wine—355 milliliter (12 oz.): This size was supported by 38 commenters. Several cider producers state that since the 355 milliliter (12 oz) can size is standard in the beer industry, their customers want and expect that size, making it critical to their commercial success. These producers note that, in the production of cider, apples often naturally ferment to an alcohol by volume (abv) level just above 7.4%, so producers often take steps to lower the abv below 7% so that the standards of fill regulations will not apply, enabling them to use 355 milliliter containers. They state that sugar levels in apples vary widely depending on climate and other factors, making final alcohol levels difficult to predict. They argue that being able to use the 355 milliliter container size will eliminate this uncertainty.

Wine—200 milliliter: This size was supported by 23 commenters. Several cider industry members state that their customers are seeking products in this size. The Vermont Grape and Wine Council (Notice No. 182, comment 74) and Presque Isle Wine Cellars (Notice No. 182, comment 37) state that this size is good for ice wine and is the size used in Canada for ice wine. Other commenters note that this size is authorized in Europe, so its approval will facilitate trade.

Other wine sizes: The other container sizes proposed in Notice No. 182—620 milliliter and 700 milliliter—were supported by two comments and one comment, respectively. TTB received no comments specifically addressing the proposed 2.25 liter size. However, TTB received comments proposing additional wine sizes that had not been proposed in Notice No. 182: 20 milliliter, 180 milliliter, 225 milliliter, 255 milliliter, 300 milliliter, 360 milliliter, 473 milliliter (16 oz), 475 milliliter, 550 milliliter, 568 milliliter, 650 milliliter, 720 milliliter, 1.8 liters, and 3.5 liters. Several of these sizes were suggested in Notice No. 176 by cider producers who contend that the sizes are important for their industry's success. Other proponents state that their proposed sizes are authorized in another country, so approval will facilitate trade.

Distilled spirits—700 milliliter: This size was supported by 18 commenters, who generally state that the 700 milliliter size is popular in other countries, so approval will facilitate trade and allow U.S. consumers more options in imported distilled spirits. However, several other commenters specifically cite the 700 milliliter size as a size that should not be approved. These commenters state that 700 milliliter is too close to the currently approved 750 milliliter size, and also contend that the size is the most popular bottle size worldwide with counterfeiters. Constellation Brands, Inc. (Notice No. 183, comment 107) states that the “existence of both a 750 ml and 700 ml size in the marketplace could lead to consumer confusion and allow for confusing or misleading pricing practices. The addition of a 700 ml size could also enable sales by unauthorized importers.” Moet Hennessy USA, Inc. (Notice No. 183, comment 100) states that the prohibition against the 700 milliliter size has kept many unauthorized spirits imports out. Approval, it believes, “will `open the floodgates' for unauthorized spirits imports into the U.S.” It further states that “unreputable operators * * * refill used spirits bottles with different liquid, causing potential serious risk to consumers.”

Other distilled spirits sizes: Three of the petitioned-for sizes—720 milliliter, 900 milliliter, and 1.8 liters—received support from three Japanese trade associations and the Japanese National Tax Agency. Several other additional distilled spirits sizes were proposed by commenters that had not been proposed in Notice No. 183: 20 milliliter, 250 milliliter, 350 milliliter, 355 milliliter, 500 milliliter, 1.5 liters, 2 liters, 3 liters, 3.75 liters, and 5 gallons. Five commenters proposed the 1.5 liters size, stating that the size is used in other countries, so its approval will align the standards of fill more closely with the global marketplace. The EU referenced all nine of its authorized sizes (100 milliliter, 200 milliliter, 350 milliliter, 500 milliliter, 700 milliliter, 1 liter, 1.5 liters, 1.75 liters and 2 liters) in its comment. The proponents of these sizes cite their usage in other countries and state that their approval will facilitate trade and offer additional options to U.S. consumers.

Numerous commenters to both notices opposed the approval of any new sizes, stating that the existing standards of fill already provide a wide variety of package sizes. Some of these commenters are not against the addition of new sizes per se, but rather believe that the current rulemaking did not provide enough opportunity for the public to focus on the petitioned-for sizes. E. & J. Gallo Winery (Notice No. 182, comment 146) states that “[e]ach proposed new standard of fill should be the subject of a separate rulemaking proceeding so that commenters can review each in the context of existing standards of fill and any other proposals under consideration. Among other things, those rulemakings should address whether a proposed new standard of fill should replace an existing standard of fill or whether it should be limited to a particular package type such as cans or Tetra Paks. This type of deliberation is not possible in the current rulemaking.”

Both Notice Nos. 182 and 183 proposed the option of instituting an expedited approval process for standards of fill were TTB to continue to approve individual standards. A total of 33 comments from both notices specifically address this proposal.

Only four comments express complete support for an expedited approval process. The U.S. Association of Cider Makers (Notice No. 182, comment 158) supports an expedited process because “the industry and marketplace change faster than the existing proposed rulemaking process can react, and we believe it is unreasonable to rely on NPRMs to quickly respond to market innovations.” The National Association of Beverage Importers (Notice No. 182, comment 136 and Notice No. 183, comment 105) states that an administrative process would “enable TTB to `test the waters' of multiple sizes.” It could, for example, permit the optional use of a 700 milliliter distilled spirits bottle for a limited period of time to determine how consumers react and the industry implements the introduction of this standard size from the global market.

Thirteen comments express complete opposition to any administrative approval process. These commenters generally state that new sizes should be approved by rulemaking, which will allow for public comments and transparency. Some of them also comment that it is not clear how such a process would work. Sazerac Company, Inc. (Notice No. 182, comment 85) states that “the public should be given a meaningful opportunity to comment on potential changes as this should not be merely an administrative decision. Without sufficiently clear, publically-available standards, these standards could change over time without public input as officials change.” Sazerac also states that it believes comment would be required under the Administrative Procedure Act (APA) because the standards of fill are binding on industry.

An additional 16 comments express support for an expedited process if it includes a public comment period or an opportunity for “open consultation” with all stakeholders before new sizes are approved. Several of these commenters also state that they would like additional information about how an expedited process would work.

No comments were received regarding the Notice No. 182 proposal to increase the minimum headspace for wine containers from not in excess of 10 percent of the container's capacity to not in excess of 30 percent for clear containers 100 milliliters or less.

Five comments to Notice No. 183 opposed the proposal to amend the labeling regulations for distilled spirits and malt beverages to specifically provide that distilled spirits may be labeled with the equivalent standard U.S. measure in addition to the mandatory metric measure, and that malt beverages may be labeled with the equivalent metric measure in addition to the mandatory U.S. measure. Such labeling has been allowed under TTB policy, but it has not been explicitly authorized in the regulations. These commenters state that such dual labeling is unnecessary and will cause “label clutter.” Six comments to Notice No. 182 expressed opposition to allowing U.S. units on wine labels, even though TTB made no proposal on the issue in Notice No. 182, as the wine labeling regulations already state that wine may be labeled with the equivalent U.S. unit in addition to the mandatory metric unit. See 27 CFR 4.37(b).

As discussed above, TTB received 110 comments that expressed support for eliminating the standards of fill, asserting that eliminating the standards will provide them with greater flexibility to meet consumer demands and grow their businesses. TTB received 1,141 comments that oppose eliminating the standards of fill (including the 937 nearly identical comments from individuals associated with three industry members). These commenters contended that eliminating the standards of fill would cause consumer confusion and potentially lead to a proliferation of differing State container size requirements that could cause further consumer confusion. Commenters also expressed concern about significant market disruption.

Based upon these comments, particularly those with regard to the potential consumer confusion, TTB believes that the appropriate action at this time is not to eliminate all standards of fill but instead to identify and authorize specific standards of fill from among those sizes that were the subject of notice and comment and for which TTB received sufficient information to make a determination.

TTB notes that, while some commenters expressed support for eliminating of the standards of fill (including Senator Charles Schumer), the comments themselves focused specifically upon ensuring that certain can sizes, such as 250 milliliter and 355 milliliter for wine, were authorized. TTB believes that its authorization of these sizes largely addresses these commenters' concerns.

Commenters expressed considerable support for most of the sizes TTB included in its proposals. However, few commenters supported authorizing the 620 milliliter, 700 milliliter, and 2.25 liter sizes for wine (which received specific support from 2, 1, and 0 commenters respectively).

The 700 milliliter size for distilled spirits was the only proposed size, for either wine or distilled spirits, for which some expressed opposition. With regard to the 700 milliliter size, TTB received supportive comments from industry members who state that approval of the 700 milliliter size for distilled spirits will facilitate trade for U.S. exporters and importers, because it is commonly used in other countries, and none of the commenters opposed to the 700-milliliter size provided information that would support a finding that the 700-milliliter size will be any more misleading to consumers than the other sizes supported by commenters generally. While some commenters noted that the 700-milliliter size is close to the already authorized 750-milliter size, as noted above, commenters supported approving the 355-milliliter size for wine, although 375-milliter is already an authorized size, and no commenters suggested that the closeness in size would lead to confusion. Additionally, although TTB understands the concern that commenters raised with regard to the potential for counterfeit products in the 700-milliliter size, TTB believes it is appropriate to continue to apply enforcement measures to deal with counterfeit products of any size.

In light of this, TTB believes that the addition of most of the petitioned-for sizes will result in many of the same benefits that were intended when it proposed eliminating the standards of fill—providing bottlers with more flexibility, facilitating the movement of goods in domestic and international commerce, and providing additional purchasing options to consumers, but without causing the disruption commenters expressed concerns over regarding the proposed elimination of standards of fill.

On October 7, 2019, the United States and Japan reached an agreement (the Agreement) on market access for certain agriculture and industrial goods. On December 30, 2019, a Federal Register notice (84 FR 72187) was issued to implement the Agreement. As part of the Agreement, the United States reached a side letter agreement with Japan dated October 7, 2019, which addresses issues related to alcohol beverages, including standards of fill (“Side Letter”). See https://ustr.gov/sites/default/files/files/agreements/japan/Letter_Exchange_on_Alcoholic_Beverages.pdf. The Side Letter states that the U.S. Department of the Treasury will take final action on Notice Nos. 182 and 183. If the final action does not address certain sizes—180, 300, 360, 550, 720 milliliters, and 1.8 liters for wine, and 700, 720, 900 milliliters, and 1.8 liters for distilled spirits—then the U.S. Department of the Treasury shall propose new rulemaking to allow for those sizes. The Side Letter took effect with the U.S.-Japan Trade Agreement, which entered into force on January 1, 2020.

In Notice No. 183, TTB referenced the distilled spirits sizes listed in the Side Letter. It described the petitions from three Japanese trade associations and a Japanese government agency for those sizes. These entities submitted comments that supported the elimination of the standards of fill, but further stated that, if the standards are not eliminated, they support the approval of their petitioned-for sizes. These proposed sizes for distilled spirits are discussed in Notice No. 183. Because TTB had not received petitions for the wine sizes listed in the Side Letter, TTB did not reference those sizes for wine in Notice No. 182. Nevertheless, TTB did receive comments from a Japanese trade association and a Japanese government agency proposing the approval of those sizes. The two comments support the elimination of the standards of fill, but requested the approval of the 180, 300, 360, 550, 720 milliliters, and 1.8 liters sizes for wine if the standards of fill for wine are not eliminated.

TTB requested comments regarding whether it should include in the new regulations an expedited administrative approval process that would replace the requirement for separate rulemaking in order to add new sizes to the standards of fill. This expedited approval process was offered as a quicker and less burdensome way to facilitate the expansion of bottled sizes without creating unnecessary industry burden. However, few commenters supported the process unless it included a public comment period or other means to consult with the industry, similar to the existing rulemaking process. Other commenters expressed support for an administrative approval process provided that TTB establishes criteria for approving additional sizes, and stated that TTB had not identified appropriate criteria for such a procedure. Consequently, TTB believes that an administrative procedure for approving new standards of fill is not appropriate at this time.

After careful analysis of the comments discussed above, TTB has decided not to eliminate the standards of fill for wine and distilled spirits. Rather, TTB is adding certain sizes for which TTB had aired petitions in Notice Nos. 182 and 183. Based upon the comments received to those notices, TTB is authorizing the addition of the 200, 250, and 355 milliliters sizes for wine to § 4.72, and the 700, 720, 900 milliliters, and 1.8 liters sizes for distilled spirits to § 5.47a.

At this time, TTB is not adding the 620 milliliters, 700 milliliters, and 2.25 liter wine sizes for which it had aired petitions, because comments received regarding these sizes did not provide sufficient information for TTB to determine that they should be authorized standards of fill. TTB will consider including these sizes and any new petitions for additional sizes in subsequent rulemaking. Moreover, TTB is not adding a 2-milliliter size for distilled spirits that was the subject of a petition because, as discussed in Notice No. 183, TTB believes that a minimum size of 50 milliliters is needed to ensure sufficient space on the container for required labeling.

TTB is adopting the proposal in Notice No. 182 to increase the minimum headspace in wine containers from not in excess of 10 percent of the container's capacity to not in excess of 30 percent for clear containers 100 milliliters or less. TTB is likewise adopting the Notice No. 183 proposal to amend the labeling regulations for distilled spirits and malt beverages to specifically provide that distilled spirits may be labeled with the equivalent standard U.S. measure in addition to the mandatory metric measure, and that malt beverages may be labeled with the equivalent metric measure in addition to the mandatory U.S. measure.

TTB will conduct rulemaking to propose the addition of new standards of fill for wine, including the 180, 300, 360, 550, 720 milliliters, and 1.8 L sizes that Japanese government entities and Japanese industry associations requested during the comment period, and which were included in the Side Letter signed as part of the U.S.-Japan Trade Agreement discussed above.

TTB certifies that this final rule will not have a significant economic impact on a substantial number of small entities. This final rule will provide wine and distilled spirits bottlers and importers with additional flexibility to use new bottle sizes if they so choose. This proposed regulation does not impose any new reporting, recordkeeping, or other administrative requirements. Accordingly, a regulatory flexibility analysis is not required.

The collection of information in this rule has been previously approved by the Office of Management and Budget (OMB) under the title “Labeling and Advertising Requirements Under the Federal Alcohol Administration Act,” and assigned control number 1513-0087. This regulation will not result in a substantive or material change in the previously approved collection action, since the nature of the mandatory information that must appear on labels affixed to the container remains unchanged.

It has been determined that this final rule is not a significant regulatory action as defined in Executive Order 12866 of September 30, 1993. Therefore, a regulatory assessment is not necessary.

Because these regulations relieve a restriction by providing wine and distilled spirits bottlers and importers with additional flexibility to use new bottle sizes if they so choose, and do not impose any new reporting, recordkeeping, or other administrative requirements, it has been determined, pursuant to 5 U.S.C. 553(d)(1), that these regulations will be issued without a delayed effective date.

Jennifer Berry of the Regulations and Rulings Division drafted this document, along with other Department of the Treasury personnel.

For the reasons discussed in the preamble, TTB is amending 27 CFR parts 4, 5, and 7 as follows:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking with respect to this rule because it is impracticable. The Coast Guard did not receive details for the vessel's arrival and transit until December 20, 2020. The Coast Guard must establish this safety zone by December 24, 2020 and lacks sufficient time to provide a reasonable comment period and consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . It is contrary to the public interest to delay the effective date of this rule because the safety zone must be effective by December 24, 2020 to protect vessels and persons from the dangers associated with the M/V ZHEN HUA 35 as it transits a busy waterway between December 24, 2020 and January 10, 2021.

The Coast Guard is issuing this rule under authority 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port San Francisco has determined that potential hazards associated with the transit of the M/V ZHEN HUA 35 between December 24, 2020 and January 10, 2021, will be a safety concern for anyone within a 500-foot radius of the vessel during its transit to Oakland, Berth 58, while the vessel is within the San Francisco Bay and areas shoreward of the line drawn between San Francisco Main Ship Channel Lighted Bell Buoy 7 and San Francisco Main Ship Channel Lighted Whistle Buoy 8 (LLNR 4190 & 4195) in positions 37°46.9′ N, 122°35.4′ W and 37°46.5′ N, 122°35.2′ W, respectively. For this reason, a safety zone is needed to protect personnel, vessels, and the marine environment in the navigable waters around the M/V ZHEN HUA 35 during its transit to Berth 58 at the Oakland International Container Terminal in Oakland, CA.

This rule establishes a safety zone from 12:01 a.m. on December 24, 2020 until 11:59 p.m. on January 10, 2021, during the inbound transit of the M/V ZHEN HUA 35. While the M/V ZHEN HUA 35 is within the San Francisco Bay and areas shoreward of the line drawn between San Francisco Main Ship Channel Lighted Bell Buoy 7 and San Francisco Main Ship Channel Lighted Whistle Buoy 8 (LLNR 4190 & 4195) in positions 37°46.9′ N, 122°35.4′ W and 37°46.5′ N, 122°35.2′ W, respectively, the safety zone will encompass the navigable waters around and under the vessel, from surface to bottom, within a circle formed by connecting all points 500 feet out from the vessel. The safety zone is needed to protect personnel, mariners, and vessels from hazards associated with ship-to-shore gantry crane arms which will extend more than 200 feet out from the transiting vessel. This loading configuration is necessary in order for the vessel to pass safely under the Golden Gate Bridge and the San Francisco-Oakland Bay Bridge.

The M/V ZHEN HUA 35 will make a temporary stop in Anchorage 9 during its transit to the Oakland International Container Terminal. The vessel will stop temporarily for the crew to make adjustments to the cargo so the vessel can safely moor at Berth 58 in Oakland, CA. The cargo adjustments will include raising three ship-to-shore crane arms to an upright position which will facilitate mooring.

The effect of the safety zone is to restrict navigation in the vicinity of the M/V ZHEN HUA 35. Except for persons or vessels authorized by the COTP or the COTP's designated representative, no person or vessel may enter or remain in the restricted area. “Designated representative” means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel or a Federal, State, or local officer designated by or assisting the Captain of the Port San Francisco (COTP) in the enforcement of the safety zone.

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

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

This regulatory action determination is based on the limited duration and narrowly tailored geographic area of the safety zone. This safety zone impacts a 500-foot-radius area of the San Francisco Bay in San Francisco, CA for a limited duration. While the safety zone encompasses a two week period to account for uncertain transit delays of the M/V ZHEN HUA 35, the safety zone will only be enforced for the duration of the vessel's inbound transit, which is expected to last less than 24 hours, and that period will be announced via Broadcast Notice to Mariners. Vessels desiring to transit through the safety zone may do so upon express permission from the COTP or the COTP's designated representative.

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

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and U.S. Coast Guard Environmental Planning Policy, COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone which prevents entry to a 500-foot radius area of the San Francisco Bay for a limited period of time during a vessel's inbound transit. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of Department of Homeland Security Directive 023-01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

VA is correcting its final rule, “RIN 2900-AP88; Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries”, that was published on November 30, 2020, in the Federal Register at 38 CFR, Vol. 85, No. 230, 76453. The first error is with instruction 2(a), in which we intended to revise diagnostic code 5003. We are correcting this error by revising the entire diagnostic code 5003. The second error contains inaccurate diagnostic codes for Prosthetic implants in appendix C. We are correcting this error by revising the entry for Prosthetic implants.

In FR Doc. 2020-25450 appearing on page 76453 in the Federal Register of Monday, November 30, 2020, the following corrections are made:

This is a summary of the Report and Order in WT Docket No. 19-212, FCC 20-126, adopted September 16, 2020, and released September 17, 2020. The full text of the Report and Order is available for public inspection at the following internet address: https://docs.fcc.gov/public/attachments/FCC-20-126A1_Rcd.pdf. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to FCC504@fcc.gov or calling the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice) or 202-418-0432 (TTY).

The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the possible impact of the rule changes contained in this Report and Order on small entities. As required by the Regulatory Flexibility Act, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the notice of proposed rulemaking ( NPRM ) (84 FR 51502, Sept. 30, 2019) released in September 2019 in this proceeding. The Commission sought written public comment on the proposals in the NPRM, including comments on the IRFA. No comments were filed addressing the IRFA. This FRFA conforms to the RFA. The Commission will send a copy of the Report and Order, Order of Proposed Modification, and Orders, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995, 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).

The Commission will send a copy of the Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

1. In the Report and Order, the Commission finalizes its transition to electronic interactions for licenses in the Wireless Radio Services. Specifically, the E-Licensing Report and Order: (1) Eliminates existing exemptions to electronic filing in the FCC's Universal Licensing System and require electronic filing in the Antenna Structure Registration system; (2) requires electronic filing (and delivery of service) of pleadings related to these systems; (3) requires applicants, licensees, and registrants to provide an email address on related FCC Forms; and (4) shifts from paper to electronic delivery of Commission correspondence generated from these systems. Together, these changes will decrease costs for consumers and the Commission, enhance transparency of and public access to data, and save a substantial amount of paper annually.

2. The Commission manages applications for all Wireless Radio Service licenses through ULS. Related systems accept filings and work in conjunction with or alongside of ULS: The Antenna Structure Registration (ASR) System, the Tower Construction Notification System (TCNS), and the Electronic Section 106 (E-106) System. To promote safety in aircraft navigation, the Commission requires the owners of antenna structures to register with the ASR System if their structures are above 200 feet in height or are in close proximity to an airport's runway. TCNS and the E-106 System advance the goal of the National Historic Preservation Act to protect historic properties, including Tribal religious and cultural sites. Collectively, these systems provide an efficient and transparent means to accept, review, and take action on the Commission's Wireless Radio Service applications.

3. The majority of applications filed in ULS today are electronic, as required by rule. But exceptions to mandatory electronic filing remain for the following services: (i) Part 90 Private Land Mobile Radio services for shared spectrum, spectrum in the public safety pool below 746 MHz, and spectrum in the public safety allocation above 746 MHz, except those filed by FCC-certified frequency coordinators; (ii) part 97 Amateur Radio Service, except those filed by Volunteer Examination Coordinators; (iii) part 95 General Mobile Service and Personal Radio Service, excluding 218-219 MHz service; (iv) part 80 Maritime Services, excluding VHF 156-162 MHz Public Coast Stations; (v) part 87 Aviation Services; (vi) part 13 Commercial Radio Operators (individual applicants only); and (vii) certain part 101 licensees who also fall under the exempted groups.

4. Similarly, the overwhelming majority of ASR applications are filed electronically; however, applicants have the choice to file manually or electronically. Pleadings related to applications in ULS and ASR, such as petitions to deny, may be filed electronically through a pleadings portal in ULS, but there is no mandatory electronic filing requirement. TCNS is an electronic-only system, so all interactions with it are electronic by design. While communications facility notifiers generally use TCNS as the vehicle to fulfill their obligation to identify and contact Tribal Nations and Native Hawaiian Organizations, they are not required to use it if a Tribe or NHO expressed a preference for being contacted in another manner. In addition, while communications facility notifiers can provide information to State Historic Preservation Officers via certain FCC Forms, there is no requirement that they use the E-106 system to submit these forms or otherwise file them electronically.

5. We find it in the public interest to eliminate the exemptions in § 1.913 of our rules that allow manual filings by applicants and licensees, and we instead mandate electronic filing for all Wireless Radio Services. This action furthers several longstanding Commission goals, including reducing regulatory burdens and environmental waste while streamlining our wireless services application process. It is also consistent with our Commission-wide efforts to digitize our systems and create efficient, user-friendly interactions with the agency.

6. ULS currently provides licensees and applicants electronic filing capability for the vast majority of applications in the Wireless Radio Services, but there are a few limited categories of submissions that ULS is unable to accept electronically. The Wireless Telecommunications Bureau recently has implemented a solution that allows all such applications to be filed in the Commission's Electronic Comment Filing System (ECFS). Thus, it is now possible for all applications in the Wireless Radio Services to be submitted electronically through one of the appropriate Commission e-filing systems.

7. We also require mandatory electronic filing of all applications in the ASR system. We believe there are many benefits to relying exclusively on electronic filing in the ASR system. Electronic submission is faster and less burdensome for applicants, less prone to errors resulting from processing of paper submissions. We agree that electronic filing in ASR is efficient, cost-effective, and reduces waste by eliminating unnecessary paper processes. Combined with the fact that the Commission already receives an overwhelming majority of ASR submissions electronically today, it is evident that a paper filing option is unnecessary. Accordingly, we revise the Commission's rules to specify mandatory electronic filing in the ASR system.

8. The Commission developed TCNS and E-106 as tools for meeting its obligations under the National Historic Preservation Act. The Commission delegates the responsibility to licensees and applicants for initiating the Section 106 review process for the proposed facilities and for identifying and assessing potential adverse effects on historic properties. This process requires the Commission to consult with the appropriate State Historic Preservation Officers and Tribal Nations that have expressed an interest in the area of potential effect of a proposed project. Tribal Historic Preservation Officers may act in lieu of State Historic Preservation Officers for projects on Tribal lands. TCNS provides Tribes with preliminary electronic notification of proposed tower projects that potentially could impact historic properties of religious and cultural significance to Tribal Nations and Native Hawaiian Organizations. The E-106 System supports TCNS by allowing applicants to electronically submit the forms and cultural resources reports necessary for participating State Historic Preservation Officers, Tribal Historic Preservation Officers and consulting parties to complete the review process, as provided for in the Commission's Nationwide Programmatic Agreement.

9. We find that the existing TCNS and E-106 electronic filing systems, although voluntary, already automate and expedite the exchange of information and correspondence. In an effort to maximize the numerous benefits associated with electronic communications, however, we find that we can further reduce paperwork associated with these electronic systems. Accordingly, for State Historic Preservation Officers, we eliminate the paper mailing option for the Weekly Notice of Tower Construction Notification System Filings and will now deliver these courtesy notifications solely by email. With respect to E-106, we eliminate the courtesy paper mailing option of the Informational Notice of Section 106 Filings that summarizes proposed projects for applicants, consultants, and State Historic Preservation Officers that choose to use the E-106 system to review FCC Forms 620 and 621 electronically. This notice will now be delivered solely by email, except in instances where Tribes or Native Hawaiian Organizations have requested paper notification preferences.

10. The Commission adopts rules mandating electronic filing for all pleadings related to ULS and ASR licenses and applications and requiring electronic service of those pleadings where service is mandated. We find that requiring electronic filing of pleadings will provide several benefits to wireless licensees, applicants, and stakeholders, including cost savings, convenience, and speed. Electronic filing reduces paper, printing, and delivery expenses. It also is more convenient: Users can file documents nearly 24 hours a day, 7 days a week through the non-docketed pleadings module on the ULS homepage. In addition, electronic filings are transmitted nearly instantaneously, which facilitates faster communications with the Commission and makes those pleadings simultaneously available to other interested parties. Electronic filing also allows users to create a digital record and establish proof of delivery.

11. Consistent with changes we make for electronic pleadings, we also require interested parties to submit electronically petitions, complaints, and requests for environmental review of proposed wireless communications facilities filed in accordance with the Commission's NEPA rules. While we are confident that the vast majority of participants in the NEPA review process will have the capability to participate electronically, we recognize that some members of the public may lack internet access. We believe that the Commission's waiver process is sufficient to provide relief from the requirement to electronically file such documents where parties are unable to file electronically or would be otherwise unreasonably burdened by such a requirement. Parties seeking such a waiver should include as part of their paper submission a request for waiver of the electronic filing requirement, and send that submission to the appropriate mailing address for the Commission Secretary. Parties should explain in their waiver requests why they are unable to file electronically or why it would be unreasonably burdensome for them to do so.

12. Consistent with our decision to mandate electronic filings of pleadings, the Commission adopts rules mandating electronic service, where service is required. Specifically, we require all petitions, pleadings, and other documents associated with licensing matters in the Wireless Radio Services to be served electronically upon a party, his attorney, or other duly constituted agent to the email address listed in ULS. Given that all parties will be required to provide valid email addresses, service by email to such an address may be considered complete upon sending. A party that has failed to provide a valid email address may not object to the adequacy of service. We revise various part 1 rules to effectuate these changes.

13. We find it in the public interest to require the inclusion of email addresses for all new ULS and ASR applicants and all existing ULS licensees and ASR registrants that modify, renew, or otherwise touch their existing licenses and registrations. We encourage existing licensees and tower owners to update their licenses and registrations with an email address in order to receive electronically courtesy letters from the Commission going forward. This approach is consistent with the Commission's efforts to modernize its legacy filing, communications, and information retention systems and is necessary to effectuate the rules we adopt in this document requiring electronic delivery of all correspondence between the Commission and ULS and ASR applicants and registrants.

14. Having valid, up-to-date email addresses on file will ensure that the Commission can shift its current process of delivering correspondence generated by ULS and the ASR System from postal mail to email. We also find that requiring an email address is not unduly burdensome for applicants and licensees. Rather, this action reflects a practice already adopted by the vast majority of our system's users and would otherwise pose a minor change in practices for the few filers who have not yet adopted such practices. Once an email address is required on the relevant FCC Forms, the Commission may dismiss as defective an application if an email address is not included.

15. To increase the number of email addresses on file and expand the Commission's use of electronic correspondence, we encourage existing licensees and tower owners to complete administrative updates to existing licenses and registrations in order to receive courtesy letters from the Commission. With the rules adopted in this document, courtesy letters will only be sent electronically to licensees and tower owners with email addresses on file; those without email addresses on file will not receive any courtesy letters. Licensees and tower owners seeking to receive such courtesy letters should therefore complete administrative updates to their existing licenses and registrations to continue receiving such correspondence. Beyond courtesy letters, we also find that encouraging licensees and tower owners to update their existing licenses and registrations will facilitate the Commission's transition to electronic correspondence more broadly.

16. In this Report and Order, the Commission adopts rules mandating electronic delivery for all ULS and ASR compulsory and courtesy correspondence and eliminating the ability to request the Commission to mail hard copies of authorization and letters. We find it in the public interest to transition to electronic correspondence, which reduces regulatory burdens and environmental waste and makes interactions with the Commission more accessible and efficient. Mandating e-correspondence and eliminating the ability to request that Bureaus mail hard copies of authorizations produces several benefits with no offsetting costs, given that users can access and download their official authorizations, leases, registrations, and all related correspondence from the ULS and ASR System at any time.

17. The Commission's previous actions transitioning to e-correspondence produced several benefits, which we expand upon in this document by shifting from mail to electronic delivery of correspondence generated by ULS and the ASR system. We find that shifting to electronic correspondence is timely and reasonable, reduces costs and increases efficiency. Most businesses operate electronically, and electronic correspondence is an expedient and reliable form of communication and ensures a streamlined and efficient process. In addition, we find it in the public interest to replace our traditional physical mailing processes with less expensive electronic alternatives to reduce the Commission's expenses.

18. Substance of Email Delivery.—We find that including the actual substance of the correspondence in the email is the most efficient way to transmit critical Commission communications and will increase the accessibility and speed of communications with our systems' users. We find that including the actual substance of the communications in the email itself is more efficient than proposed alternatives, and is supported by the record. Therefore, all email correspondence will include the in the body of the message: (1) Applicant name(s), (2) FCC Registration Numbers, (3) any applicable file numbers, (4) a list of any applicable call signs, (5) the subject of the communication ( e.g., application return, construction notification reminder, etc.), and (6) the disposition of the action. In other words, the Commission is taking the same correspondence that was previously in a mailed letter and shifting the content of that letter to the email message.

19. To ensure that an email is received by the appropriate recipient, users may list up to two email addresses associated with their license or application. Allowing up to two email addresses is consistent with the current practice in ULS today; as the Commission continues to modernize its ULS platform going forward, it will consider the ability to allow more than two email addresses, as some commenters recommend. For the same reasons, we also will continue to allow users to designate a “primary” and “secondary” address for all or certain correspondence.

20. To reduce the risk that a message is mistaken as phishing or junk mail, the subject line of the email will include the description of the action and application type. We find that providing this information in the subject line, along with the Sender's address ending in “ fcc.gov, ” will help assure recipients that the message is official Commission correspondence and reduce the risk that an email is mistaken as phishing or junk mail. We remind users that they may adjust their email settings to recognize Commission messages to ensure that Commission messages are not erroneously diverted to junk mail. The information contained in these emails can also be independently verified by logging into ULS, and consumers are familiar with these practices through dealings with all major banks and businesses. Copies of all such correspondence are contained in ULS or ASR under “Automated Letters” or “Letters” for the relevant application or license, which provides another way for users to verify their authenticity. Users responding to such Commission communication will do so by filing applications (or amending pending applications) in ULS and ASR, not via email.

21. The Commission's longstanding practice of reviewing the message for errors and attempting to deliver the message a second time has proven successful when physical mail is returned as undeliverable, and we find that the same approach is appropriate for handling undeliverable emails. We are putting in place rules that will allow the Bureaus to offer enhanced capabilities in the future and will consider and weigh the benefits and costs of such an alerting system or other mechanisms going forward as we continue to modernize ULS.

22. As of the effective date of this Order, we will no longer print and mail paper authorizations. All notification preferences will be automatically set or reset to receive electronic licenses, and all licensees can download and print official copies of their licenses in ULS License Manager. We otherwise set a transition deadline for the decisions in this document regarding mandatory e-filing, mandatory email address submission, and the Bureaus' shift to electronic correspondence, of six months from the effective date of this Report and Order.

23. Regulatory Flexibility Analysis. The Regulatory Flexibility Act of 1980, as amended (RFA) requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to the possible impact of the rule changes contained in the Report and Order. The FRFA is set forth in Appendix C of the Report and Order.

24. Paperwork Reduction Analysis. This Report and Order 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).

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

26. Accordingly, It Is Ordered that, pursuant to the authority found in sections 1, 4(i), and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 303, this Report and Order Is Hereby Adopted .

27. It Is Further Ordered that parts 1, 13, 17, and 97 of the Commission's rules, 47 CFR parts 1, 13, 17, and 97, Are Amended as set forth in the Final Rules, and such rule amendments shall be effective six months after the date of publication in the Federal Register .

28. 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.

29. It Is Further Ordered that the Commission Shall Send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 1, 13, 17, and 97 as follows:

This document corrects minor errors in FMVSS No. 214, “Side impact protection,” and FMVSS No. 226, “Ejection mitigation.” The first error resulted when the Federal Register transcribed regulatory text for FMVSS No. 214. The second error occurred when the Agency drafted the regulatory text for FMVSS No. 226 in establishing the standard.

On September 11, 2007, NHTSA published a final rule that incorporated a vehicle-to-pole test in FMVSS No. 214, “Side impact protection.”  1 In response to petitions for reconsideration of the rule, 2 NHTSA published a final rule on March 15, 2010 that, among other matters, corrected unit conversion errors in S6.1.2 and S6.1.3 of the standard. 3 The March 15, 2010 final rule set forth the regulatory text for S6.1.3, “Peak crush resistance” as follows: “The peak crush resistance shall not be less than two times the curb weight of the vehicle or 31,138 N (7,000 lb), whichever is less. ” 75 FR at 12140, col. 1 (emphasis added). Similar language was also included in the revised S6.2.3, which stated, “Peak crush resistance. The peak crush resistance shall not be less than three and one half times the curb weight of the vehicle or 53,378 N (12,000 lb), whichever is less.” Id. However, the phrase “whichever is less” was not included in S6.1.3 as published in the Code of Federal Regulations, though the phrase was included in S6.2.3 (49 CFR 571.214).

The door crush force requirements establish threshold protections for occupants from injury-causing intrusion into the occupant space that can occur during a side impact. The phrase “whichever is less” in S6.1.3 was meant to clarify which of the maximum door crush force levels applies to vehicles, depending upon the vehicle's curb weight. 4 However, when the phrase was mistakenly eliminated, it created ambiguity and potentially implied that S6.1.3 required higher forces to be used than NHTSA had intended. Without the phrase, there is potential for manufacturer confusion and the possibility that some may certify to an overly stringent door crush force requirement than NHTSA intended. NHTSA (and, we believe, industry as a whole) has applied S6.1.3 with the understanding and effect that the “whichever is less” language was meant to be as it is in S6.2.3—see, e.g., NHTSA's test procedure (TP) manual for FMVSS No. 214 issued by NHTSA's Office of Vehicle Safety Compliance for testing vehicles to Standard No. 214. The TP has always aligned with the correct original regulatory text. 5 That said, the absence of the phrase reduces the clarity of S6.1.3 and introduces an unintended ambiguity that NHTSA would like to correct. This technical amendment corrects the error by adding “whichever is less” back in S6.1.3.

On January 19, 2011, NHTSA published a final rule establishing FMVSS No. 226, “Ejection mitigation.” The final rule intended to exclude from the applicability of the standard vehicles with no doors or with doors that are designed to be easily attached or removed so the vehicle can be operated without doors. In the notice of proposed rulemaking (NPRM) preceding the final rule, the Agency requested comment on whether “[v]ehicles that have no doors, or exclusively have doors that are designed to be easily attached or removed so that the vehicle can be operated without doors” were still being produced. 6 NHTSA further explained that, “Assuming the vehicles are being manufactured, NHTSA proposes excluding the vehicles on practicability grounds,” and requested comment on the issue. 7 Subsequently, in the final rule, NHTSA proceeded to exclude the vehicles in the text of the preamble. The Agency made its intent to exclude the vehicles in the final rule clear, explaining in the preamble that: “Comments were requested but none were received on whether vehicles are still being manufactured that have no doors, or exclusively have doors that are designed to be easily attached or removed so that the vehicle can be operated without doors. NHTSA proposed excluding these vehicles on practicability grounds. This final rule adopts the exclusion.”  8

However, notwithstanding the Agency's clear intent expressed by that preamble text, NHTSA inadvertently did not include this exclusion in the final rule's regulatory text, so it is not reflected in FMVSS No. 226 as set forth in the CFR (49 CFR 571.226). The practical effect of this error is likely inconsequential, because since the effective date of FMVSS No. 226, NHTSA has applied the standard as excluding such vehicles from FMVSS No. 226. Regardless, even if the practical effect of the error is inconsequential, NHTSA would like to correct this drafting error by adding the exclusion of the vehicles to S2, “Application,” of the standard.

NHTSA is making the changes effective on publication in the Federal Register . NHTSA is issuing these corrections in a final rule because NHTSA finds that notice and comment are unnecessary. The amendment to FMVSS No. 214 corrects an error that arose with publication of the standard in the CFR. The correction to FMVSS No. 226 is made to correct NHTSA's drafting error when the Agency issued the standard. The correcting amendments simply make technical corrections to align the regulatory text with NHTSA's expressed intent when the Agency issued the standards concerning the performance standard in No. 214 and the application of No. 226. The practical effect of these corrections is inconsequential. For the above reasons, NHTSA finds good cause for making this correcting amendment effective on publication in the Federal Register .

NHTSA has considered the impact of this final rule under Executive Orders (E.O.) 12866 and 13563, as well as under the Department of Transportation's administrative rulemaking procedures set forth in 49 CFR part 5, subpart B. This final rule makes technical corrections and is not considered significant under these Executive orders. The rule corrects the regulatory text to align it with the Agency's intent in drafting the language at issue. There are no costs or benefits associated with this technical correction because the Agency has been operating as if the language changes included in this final rule have been in effect since the publication of the earlier final rules.

As this final rule is nonsignificant, it is not subject to the offset requirements of E.O. 13771.

This final rule correcting the standards at issue will not have an adverse impact on the quality of the human environment.

Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996, I certify that this final rule will not have a significant impact on a substantial number of small entities. This rule simply makes technical corrections and is not expected to have an impact on any entities.

NHTSA has examined today's final rule pursuant to E.O. 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. This final rule simply makes technical corrections and does not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.

When promulgating a regulation, E.O. 12988, “Civil Justice Reform” (61 FR 4729; February 7, 1996), specifically requires that the Agency must make every reasonable effort to ensure that the regulation, as appropriate: (1) Specifies in clear language the preemptive effect; (2) specifies in clear language the effect on existing Federal law or regulation, including all provisions repealed, circumscribed, displaced, impaired, or modified; (3) provides a clear legal standard for affected conduct rather than a general standard, while promoting simplification and burden reduction; (4) specifies in clear language the retroactive effect; (5) specifies whether administrative proceedings are to be required before parties may file suit in court; (6) explicitly or implicitly defines key terms; and (7) addresses other important issues affecting clarity and general draftsmanship of regulations.

Pursuant to this order, NHTSA notes as follows. The preemptive effect of this final rule is discussed above in connection with E.O. 13132. This rule simply makes technical corrections and does not have any retroactive effect. There is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceedings before they may file suit in court.

This final rule simply makes technical corrections and will have no effect on international regulatory cooperation.

This final rule simply makes technical corrections. There are no voluntary consensus standards that apply to this final rule.

This final rule only makes technical corrections and is not subject to the Unfunded Mandates Reform Act of 1995. There are no costs associated with this rule.

There are no Paperwork Reduction Act requirements associated with this technical correction.

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an organization, business, labor union, etc.). You may review DOT's complete Privacy Act statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://www.dot.gov/privacy.html.

Accordingly, 49 CFR part 571 is amended by making the following correcting amendments:

The Service is the Federal agency delegated with the primary responsibility for managing migratory birds. Our authority derives from the Migratory Bird Treaty Act of 1918 (MBTA; 16 U.S.C. 703-712), as amended, which implements conventions with Great Britain (for Canada), Mexico, Japan, and Russia. We implement the provisions of the MBTA through the regulations in parts 10, 13, 20, 21, 22, and 92 of title 50 of the Code of Federal Regulations (CFR). The MBTA protects migratory birds (listed in 50 CFR 10.13) from take, except as authorized under the MBTA. Regulations pertaining to specific migratory bird permit types are at 50 CFR parts 21 and 22. The Service works on migratory bird conservation in partnership with four Flyway Councils (Atlantic, Mississippi, Central, and Pacific), which include representatives of State, provincial, and territorial agencies.

The double-crested cormorant is a fish-eating migratory bird that is distributed across a large portion of North America. There are five different breeding populations, variously described by different authors as the Alaska, Pacific (or Western), Interior, Atlantic, and Southern populations. Although these populations are described by their breeding ranges, the birds commingle to various extents on their migration and wintering areas, with birds from populations closer to each other overlapping more than those that are more distant.

Cormorant populations have increased over both the short term (2005-2015) and long term (1966-2015) (United States Geological Survey 2020). Permits issued by the Service to take birds are one method available to reduce conflicts. However, prior to applying for permits to take cormorants, individuals and entities experiencing conflicts with cormorants should attempt nonlethal techniques ( e.g., hazing, habitat modification) to alleviate the conflict. Nonlethal techniques combined with lethal take should be more effective and may ultimately result in less need for lethal take in the future.

In response to ongoing damage at aquaculture facilities and other damage and conflicts associated with increasing cormorant populations, the Service administered regulations that included, in addition to Depredation Permits (located at 50 CFR 21.41), an Aquaculture Depredation Order (which was located at 50 CFR 21.47) beginning in 1998 and a Public Resource Depredation Order (which was located at 50 CFR 21.48), which began in 2003. Both of these regulations were in place until May 2016 when they were vacated by Court order (see more information, below).

The Aquaculture Depredation Order eliminated individual permit requirements in 13 States for private individuals, corporations, State agencies, and Federal agencies taking cormorants at aquaculture facilities. The Public Resource Depredation Order enabled States, Tribes, and the U.S. Department of Agriculture (USDA) Wildlife Services in 24 States, without the need for individual depredation permits, to take cormorants found committing or about to commit, and to prevent, depredations on the public resources of fish (including hatchery stock at Federal, State, and Tribal facilities), wildlife, plants, and their habitats.

In May 2016, these depredation orders were vacated by the United States District Court for the District of Columbia. The Court concluded that the Service failed to consider a reasonable range of alternatives in its 2014 environmental assessment (EA) and directed the Service to take “a hard look” at the effects of the depredation orders on double-crested cormorant populations and other affected resources. Finally, the Court ordered that the Service perform a new and legally adequate EA or environmental impact statement (EIS) under the National Environmental Policy Act of 1969, as amended (NEPA; 42 U.S.C. 4321-4347). Following the Court ruling, the Service prepared an EA in 2017 to address continuing conflicts with cormorants (USFWS 2017). The authority for authorizing lethal take of depredating cormorants reverted to the issuance of individual depredation permits pursuant to 50 CFR 21.41. Under the 2017 EA, cormorants could lethally be taken only to address conflicts with aquaculture, human health and safety, threatened and endangered species (as listed under the Endangered Species Act of 1973 (ESA), 16 U.S.C. 1531 et seq. ) and State-listed species of management concern, and personal property (under the 2017 EA, take of cormorants to protect wild and publicly stocked fisheries would only be allowed to protect threatened or endangered species).

Conflicts in aquatic systems continue to exist between cormorants and fish stocks managed by Federal, State, and Tribal agencies as recreational and/or commercial fisheries. Conflicts also exist between cormorants and conservation of other species and habitats in some areas. As fish-eating birds, cormorant predation of fish occurs not only at aquaculture facilities, but also in private recreational ponds and large aquatic ecosystems. While conflicts exist between cormorants and some stakeholders, birders and other interested parties value cormorants for their aesthetic and existence values.

The Service is responsible for balancing the lethal take of cormorants to alleviate conflicts where available data support such take and maintaining sustainable populations of cormorants and minimizing the regulatory burden on Federal and State agencies, Tribes, and individual citizens. In making decisions, the Service strives to use an effective and transparent decision-making process that ensures input from migratory bird and fisheries management programs and other stakeholders, fulfills requirements under NEPA, and addresses key biological uncertainties. When determining allowable take, the Service must consider uncertainty related to cormorant population dynamics, estimated maximum sustainable lethal take, and risk of over-exploitation. Furthermore, the Service must identify monitoring requirements that could be used to assess the effects of lethal take on cormorant populations and to ensure take is commensurate with population status. Monitoring can also improve future decisions regarding allowable take and how that allowable take could be determined. States, Tribes, and other stakeholders can provide assistance and information. The Service will formally convene meetings with the Flyway Councils and other relevant stakeholders to develop a specific cormorant population monitoring plan.

Cormorants are migratory waterbirds protected by the MBTA. They are native to North America and range widely across the continent, typically inhabiting wetlands and adjacent upland habitats. Cormorants also are found in some human-modified environments including airport airfields and aquaculture ponds. As described previously, the bird-management community generally accepts that there are five different breeding populations: The Alaska, Pacific (Western), Interior, Atlantic, and Southern populations.

Cormorant abundance in North America has increased dramatically since the 1960s and 1970s, mostly due to the growth of the Interior and Atlantic populations. The current estimate of cormorant abundance in the continental United States and Canada is 871,001 to 1,031,757 birds (USFWS 2020).

Prior to 1998, the sole method for authorizing the lethal take of depredating cormorants to alleviate damage and conflicts was through the issuance of depredation permits pursuant to 50 CFR 21.41, which allows the take of migratory birds that are injuring “crops or other interests.” In 1998, the Service published a final rule (63 FR 10550-10561, March 4, 1998) establishing a depredation order that authorized commercial freshwater aquaculture producers in 13 States to take cormorants without the need for a depredation permit when cormorants were found committing or about to commit depredations on aquaculture stocks. That rule was located at 50 CFR 21.47. The Service continued to issue depredation permits to address damage and conflicts to property, natural resources, and threats to human health and safety pursuant to 50 CFR 21.41. Any individual or entity conducting lethal take of cormorants under depredation permits or the depredation order was required to submit a report detailing the take to the Service annually.

The increase in cormorant abundance across areas of North America and the subsequent range expansion of cormorants has been well documented along with concerns of the negative impacts associated with the expanding population ( e.g., Taylor and Dorr 2003, Hunter et al. 2006, Atlantic Flyway Council and Mississippi Flyway Council 2010, Pacific Flyway Council 2012). In response to increasing requests for depredation permits to alleviate damage and conflicts associated with cormorants, the Service issued a final environmental impact statement (FEIS) pursuant to NEPA and made changes to the regulations governing the take of cormorants in 2003. The 2003 FEIS considered direct, indirect, and cumulative effects of alternatives for cormorant management in the United States and discussed mitigating measures. In October 2003, based on analysis in the FEIS and review of public and agency comments, the Service published a final rule and notice of record of decision (68 FR 58022-58037, October 8, 2003) that modified the existing depredation order for aquaculture facilities (previously located at 50 CFR 21.47). The regulations became effective in November 2003. The modified depredation order for aquaculture facilities eliminated the need for private individuals, corporations, State agencies, and Federal agencies to obtain a depredation permit to take cormorants at aquaculture facilities in 13 States. It also authorized USDA Wildlife Services' employees to take cormorants at roost sites in the vicinity of aquaculture facilities during October, November, December, January, February, March, and April.

That final rule in 2003 also established a depredation order that authorized Federal agencies, State fish and wildlife agencies, and Tribes in 24 States to take cormorants to reduce damage and conflicts with public resources without the need for a depredation permit. At that time, the Service defined a public resource as a natural resource managed and conserved by public agencies, which included fish ( i.e., wild fish and stocked fish at Federal, State, and Tribal hatcheries that are intended for release in public or Tribal waters), wildlife, plants, and their habitats. The depredation order for public resources was previously located at 50 CFR 21.48. As with previous regulations, any individual or entity conducting lethal take of cormorants under depredation permits or the depredation orders was required to submit a report detailing the take to the Service annually.

To evaluate the potential effects on the cormorant population from the implementation of the two depredation orders, a mitigating measure required by the 2003 FEIS was to review and renew, if warranted, the two depredation orders every 5 years. Subsequently, the Service developed an EA pursuant to NEPA in 2009 and again in 2014 that determined that a 5-year extension of the expiration date of the two depredation orders would not threaten cormorant populations and that activities conducted under the two depredation orders would not have a significant impact on the human environment. Therefore, from October 2003 through May 2016, the Service authorized the take of cormorants pursuant to the two depredation orders (which covered certain States), through the issuance of depredation permits for activities in States not addressed in the two depredation orders, and through the issuance of scientific collecting permits (50 CFR 21.23).

Since the Court's vacating of the depredation orders in May 2016 as discussed above, the Service has been reviewing and issuing individual depredation permits in the central and eastern lower 48 States pursuant to two separate analyses conducted under NEPA. Individuals or entities apply for these permits to address site-specific conflicts, and each application is logged, evaluated, and acted upon (approved or rejected) on a case-by-case basis based on the merits of the permit application.

The 2017 EA (USFWS 2017) evaluated issuing depredation permits to take cormorants for specific circumstances across 37 central and eastern States and the District of Columbia. The selected alternative (Reduced Take Alternative) authorized the average annual take of cormorants that occurred during 2010-2015 (51,571cormorants). This amount was well below the allowable level resulting from the take analyses included in the EA (82 FR 52936-52937, November 15, 2017). In December 2019, in response to requests for increased take to alleviate growing conflicts, the Service issued a notice (84 FR 69762-69762, December 19, 2019) that it would implement a different proposed alternative analyzed in the 2017 EA (Potential Take Limit Alternative) that had a higher annual take threshold, increasing the take of cormorants authorized by permits to 74,396.

Management of cormorants in the western United States (Western population, P. albociliatus ) is also through site-specific, case-by-case permits. The Service authorizes take of Western population cormorants primarily to reduce predation-related losses by cormorants of federally threatened or endangered juvenile salmon ( Oncorhyncus spp.) and steelhead ( O. mykiss ) migrating to the Pacific Ocean. Additional authorizations for take occur at Federal, State, and Tribal hatcheries rearing federally threatened or endangered fish species, to protect aquaculture facilities, and for removing nests related to infrastructure maintenance. The U.S. Army Corps of Engineers' Double-crested Cormorant Management Plan to Reduce Predation of Juvenile Salmonids in the Columbia River Estuary—Final Environmental Impact Statement (FEIS; United States Army Corps of Engineers (USACE) 2015) guides management activities related to the take of cormorants in the Western cormorant population. The National Oceanographic and Atmospheric Administration's National Marine Fisheries Service (NOAA Fisheries) had previously determined that a reduced cormorant population of 5,380 to 5,939 breeding pairs on East Sand Island in the Columbia River Estuary would restore juvenile steelhead survival to the environmental baseline levels (NOAA Fisheries 2014), and the Service authorized lethal take at levels that attempted to achieve that colony abundance. Specifically, the Service authorized approximately 2,300 cormorants to be lethally taken each year under depredation permits, scientific collecting permits, and special purpose permits.

The Service expects the number of conflicts to increase, and we expect that demand for authorizations to take cormorants will continue to increase as a means to reduce those conflicts in the future. For example, between 2007 and 2018, the number of permit requests to take depredating cormorants (exclusive of requests to act under the depredation orders) increased from slightly less than 200 to almost 300 (USFWS, unpublished data). As requests to take cormorants increase, the use of multiple individual depredation permits to address conflicts within State and Tribal jurisdictions will become increasingly time-consuming and burdensome. Therefore, creating a new State and Tribal cormorant permit would enable the Service to more efficiently respond to the needs of States and Tribes seeking relief from conflicts associated with cormorants. The new permit also provides States and Tribes with the ability to address conflicts between cormorants and wild and publicly stocked fish managed by State fish and wildlife agencies or federally recognized Tribes, which was not previously available to them under the scope of individual depredation permits per 50 CFR 21.41.

To alleviate conflicts with cormorants, we used a method called Potential Take Level (PTL) analyses (Wade 1998, Runge et al. 2004) to determine the number of cormorants that may be taken while maintaining the species (and breeding populations) at sustainable levels. This process has been used to determine allowable take levels for cormorants in a previous EA (USFWS 2017) and for other species, including several bird species ( e.g., USFWS 2009, Runge et al. 2009, Johnson et al. 2012, Zimmerman et al. 2019). Methods used to determine population sizes and allowable take levels in this rule are detailed in the USFWS Final Environmental Impact Statement: Management of Conflicts Associated with Double-crested Cormorants (USFWS 2020). The median amount of allowable take resulting from the analysis was 166,800 cormorants annually. However, we recommend being more conservative and allowing take only up to the lower 20 percent of the distribution of the PTL annually (121,504 cormorants). Population-specific recommended levels of take are: Atlantic, 37,019; Interior, 78,632; Western, 9,077; and Southern (Florida), 1,314. At those levels of take, the continental population of double-crested cormorants is expected to average about 830,285 cormorants. However, due to concerns expressed by a number of commenters in the Pacific Flyway that take reaching the allowable level could negatively impact the Western Population, the Service initially will allow a maximum of 4,539 birds to be taken annually from that population.

This final rule brings all populations of double-crested cormorants under a common assessment framework to determine allowable levels of take. However, levels of take for each population could differ based on their current abundances, population biology, and population-specific management objectives.

The Service establishes a new permit option under 50 CFR part 21 (Special Double-Crested Cormorant Permit) that is available to State and Tribal fish and wildlife agencies in the 48 contiguous United States to manage conflicts specifically associated with double-crested cormorants. The special permit is available only to a State or Tribal fish and wildlife management agency responsible for migratory bird management. Under this permit, the Service authorizes State and Tribal fish and wildlife agencies to conduct lethal take of double-crested cormorants that is normally prohibited and is intended to relieve or prevent impacts from cormorants on lands or in waters managed by those agencies within their respective jurisdictions or where States or Tribes manage wild or stocked fish that are accessible by the public or all Tribal members. The Service will issue this permit only when it is expected to reduce conflicts involving depredation at State- and Tribal-owned or operated aquaculture facilities (including hatcheries), impacts to health and human safety, impacts to threatened and endangered species (as listed under the ESA or identified in State- or Tribal-specific legislation as threatened or endangered) or those listed as Species of Greatest Conservation Need in State Wildlife Action Plans, damage to State- or Tribal-owned property and assets, and depredations of wild and publicly stocked fish managed by State fish and wildlife agencies or federally recognized Tribes and accessible to the public or all Tribal members. Those States and Tribes not wishing to obtain this new permit may apply for a depredation permit (50 CFR 21.41) to address site-specific conflicts with cormorants. However, these individual depredation permits do not authorize take of cormorants to reduce or prevent conflicts with wild and publicly stocked fisheries (except for threatened or endangered species).

The Service retains overall authority for the take of double-crested cormorants to ensure that levels of take are consistent with management objectives. States and Tribes must use nonlethal methods, and independently determine that those methods are insufficient to resolve conflicts before lethally taking double-crested cormorants. Lethal management should be considered as part of an integrated approach to managing cormorant conflicts and used only when other methods are insufficient to resolve conflicts. No permit is required merely to scare or herd migratory birds other than threatened or endangered species or bald or golden eagles ( see 50 CFR 21.41). The Service will periodically determine the population-specific numbers of double-crested cormorants that may be taken lethally during a specified number of years in efforts to reduce conflicts while sustaining cormorant abundances, and will track authorized take through permits issued to States and Tribes to ensure take does not exceed those levels specified in the PTL. The annual allocation of take to States and Tribes will be based on recent demand by those entities and adjusted as needed (while remaining at or below population-specific allowable take levels) to respond to spatial and temporal changes in population status and the need to reduce conflicts in specific regions. The Service will prepare reports every 5 years, and additionally as necessary, to provide the public with information regarding the take of cormorants and the extent to which this permit, along with other management tools ( e.g., depredation permits per 50 CFR 21.41 and scientific collection permits per 50 CFR 21.23), is achieving management objectives.

The special double-crested cormorant permit is subject to the following conditions/restrictions:

1. States and Tribes must use nonlethal methods, and independently determine that those methods are insufficient in controlling the depredation conflict, before lethally taking double-crested cormorants.

2. Lethal take of adults during the breeding season must occur prior to hatching of eggs to avoid the loss of adults that likely would result in orphaning chicks and their ultimate death due to starvation. Adult birds may not be taken at any nest with young in it unless the purpose of the take of adults is intended to address a human health and safety issue. States and Tribes and their subpermittees must make efforts to avoid disturbance to co-nesting species. Existing research findings and publications detailing appropriate nonlethal methods and/or models for reducing conflicts should be used to justify activities.

3. A permit under this section does not authorize the taking of any other migratory bird, including other species of cormorants; the disturbance of bald or golden eagles; or the take of any species listed under the ESA as threatened or endangered. If these impacts to other migratory bird species or to threatened and endangered species are likely to occur, the permittee must obtain permits specifically authorizing those activities ( i.e., additional migratory bird, Bald and Golden Eagle Protection Act, and/or threatened and endangered species permits).

4. Actions under the permit may be conducted during any time of the year on lands or in waters managed by State or Tribal fish and wildlife agencies within their jurisdictions, or where States or Tribes manage wild or stocked fish that are accessible by the public or all Tribal members. Actions may occur only when cormorants are committing or are about to commit depredations at Tribal- and State-owned or operated aquaculture facilities (including hatcheries); to alleviate impacts to health and human safety; reduce impacts to threatened and endangered species (as listed under the ESA or identified in State- or Tribal-specific legislation as threatened or endangered) or those listed as Species of Greatest Conservation Need in State Wildlife Action Plans; and to prevent damage to State- or Tribal-owned property and assets. Take activities to prevent depredation on aquatic Species of Greatest Conservation Need may occur only in natural or public waters. Permittees need to include a description of long-term plans to eliminate or significantly reduce continued need to take double-crested cormorants as part of their application. Permits will be issued annually. Permittees are required to submit an annual report by January 31 for activities conducted during the preceding calendar year. The report must detail the amount of lethal take that occurred under their permit and for what purpose the take was conducted.

5. Anyone undertaking lethal control with a firearm must use nontoxic shot or nontoxic bullets (50 CFR 20.21). However, this prohibition would not apply if an air rifle or an air pistol is used.

6. Individuals conducting lethal control may not use decoys, calls, or other devices or bait to lure birds within gun range.

7. Methods of take are at the discretion of the permittee responsible for the action, but must be accomplished by means of humane lethal take or active nest take. Lethal take may occur by firearm in accordance with paragraph (5) above or lethal or live traps. Active nest take may occur by egg oiling or destruction of nest material and contents (including viable eggs and chicks). Birds may be euthanized by cervical dislocation, CO 2 asphyxiation, or other methods recommended by the American Veterinary Medical Association. Only 100 percent corn oil, a substance exempted from regulation by the Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act, may be used to oil eggs. Other damage control methods of take consistent with accepted wildlife damage management programs may be authorized.

8. States and Tribes applying for the first time must consult with the USDA Wildlife Services for an assessment of the appropriate level of take and provide recommendations of short-term measures to provide relief from depredation and long-term measures to help eliminate or significantly reduce conflicts. Wildlife Services provides a “Form 37 Permit Review”. This form is required for first-time applicants only. Permittees need not submit a Form 37 for renewal applications unless requested by the regional Migratory Bird Permit Office. Permittees are expected to continue working with Wildlife Services for review of management plans and remaining current on best practices.

9. States and Tribes and their employees and subpermittees may possess, transport, and otherwise dispose of double-crested cormorants taken. Double-crested cormorants killed and nests/eggs destroyed under the authority of this permit must be properly disposed of by donation to an entity authorized by permit or regulation to receive migratory birds, or be destroyed completely in accordance with Federal, State, and/or local laws and ordinances. This may include donation to public museums or public scientific and educational institutions for exhibition, scientific, or educational purposes, or burial or incineration. This permit does not allow for birds or their parts or nests/eggs to be sold, offered for sale, bartered, or shipped for the purpose of sale or barter. Birds may not be retained for personal use.

10. This permit does not apply to any efforts to prevent depredation or harm to privately owned animals ( e.g., hobby animals, pets, or similar categories of animals) that are raised free-range or otherwise released to the wild. Private landowners may apply for a depredation permit (50 CFR 21.41) to alleviate damage to some types of property ( i.e., buildings and infrastructure; vehicles and equipment; some types of vegetation; and display animals, such as those in zoo exhibits).

11. States and Tribes may designate subpermittees who must operate under the conditions of the permit. Subpermittees can be employees of State and Tribal fish and wildlife agencies, USDA Wildlife Services employees, and employees of other Federal, State, or Tribal agencies or private companies specializing in wildlife damage abatement and under direct control of the permittee.

12. Any employee or subpermittee authorized by the State or Tribe to carry out actions under the special permit must retain in their possession a copy of the State's or Tribe's permit while carrying out any action.

13. Any State or Tribal agency, when exercising the privileges of this permit, must keep records of all activities, including those of subpermittees, carried out under the authority of the special permit. Prior to any permit renewal, the Service will require an annual report detailing the activities conducted under the permit and the numbers of cormorants, nests, and eggs lethally taken, treated, or destroyed.

14. Nothing in the permit should be construed to authorize the take of cormorants, their eggs, or nests contrary to any State or Tribal law or regulation or on any Federal land without written authorization by the appropriate management authority. Further, none of the privileges granted under the permit shall be exercised without any State or Tribal permit that may be required for such activities.

15. The scope of this permit applies to lands or in waters managed by State and Tribal fish and wildlife agencies and within those agencies' jurisdictions. If a State or Tribe must enter private property to access State and Tribal lands or waters where take is approved in their permit, the State or Tribe must obtain authorization from the private property owner, and require that the private property owner or occupant provide free and unrestricted access. The private property owner or occupant should also allow access at all reasonable times, including during actual operations, to any Service special agent or refuge officer, State or Tribal wildlife or deputy wildlife agent, warden, protector, or other wildlife law enforcement officer on the premises where they are, or were, conducting activities. Furthermore, any State or Tribal employee or approved subpermittee conducting such activities must promptly furnish information concerning such activities to any such wildlife officer.

16. The Service reserves the authority to immediately suspend or revoke any permit if the Service finds that the terms and conditions set forth in the permit have not been adhered to, as specified in 50 CFR 13.27 and 13.28.

Since November 2017, permits have been available only to address conflicts with aquaculture, human health and safety, threatened and endangered species, and personal property; take of cormorants to protect wild and publicly managed fisheries has not been authorized unless warranted to protected threatened or endangered species. The conflicts with these managed fisheries are increasingly causing concerns with State and Tribal fish and wildlife agencies, particularly those involved with providing recreational fishing opportunities. As cormorant abundance increases, and even at current levels, the issuance of individual depredation permits to address conflicts is becoming increasingly time-consuming and lengthy in some cases. The Service expects this special double-crested cormorant permit, which increases the flexibility of States and Tribes to address issues and also expands the scope of conflicts that can be addressed to wild and publicly managed fish, will result in increased efforts to reduce those conflicts, including lethal take of birds, nests, and eggs. Localized abundances of cormorants may decline as a result of these efforts, but regional and continental populations are not likely to be negatively impacted.

The Service also expects that, by allowing States and Tribes to address conflicts through a special permit, more aggressive management activities will result at sites experiencing high levels of conflicts associated with cormorants, and within the scope of this rule. By authorizing conflict-management activities at the State or Tribal level, instead of at the Department of the Interior Regional level, management activities will be more responsive and timely than is currently the case. Quicker resolution of conflicts ultimately may result in fewer complaints regarding cormorants. In expanding authority given to the States and Tribes via this permit, workload burdens may shift with more being borne by the States and Tribes and less by the Service. However, because States and Tribes are not required to obtain this permit, this rule does not impose an unfunded mandate on State, local, or Tribal governments. Further, since this permit is available only to States and Tribes, it does not impose an unfunded mandate on the private sector. Those States and Tribes interested in obtaining the new permit would likely have staff and resources in place with dedicated duties falling within the scope of conflicts associated with cormorants. Additional explanations can be found in the Required Determinations section of this rule.

Importantly, reducing the abundance of double-crested cormorants is not the goal of the Service or this new management action. Reducing their overall abundance does not guarantee that conflicts in specific areas will decrease. If cormorants are attracted to an area due to food resources, nesting habitats, or other factors, those places will remain attractive regardless of the size of the cormorant population and may still experience damage to the resources. Rather, the goal of the Service is to reduce the number of conflicts with cormorants by combining lethal and nonlethal methods and allowing the lethal take of cormorants only when supported by information that such take would reduce conflicts. As a consequence, abundance of cormorants in some areas may be reduced, but regional and continental populations will be managed at sustainable levels, albeit at somewhat reduced abundances. The Service also wants to ensure accountability not only in determining allowable take, but also in reporting of actual take by permittees. We will annually review reports submitted by permit holders and will periodically assess the overall impact of this permit program to ensure compatibility with long-term conservation of double-crested cormorants. This approach will result in the transparency and accountability necessary to make informed decisions about and promote adherence to authorized levels of take.

On January 22, 2020 (85 FR 3601-3603), the Service published an advance notice of proposed rulemaking (ANPR) and announced our intent to prepare a NEPA document indicating that the Service intended to establish new regulations regarding the management of double-crested cormorants. The comment period for the ANPR continued through March 9, 2020. The ANPR listed possible alternatives, which include the no action alternative in addition to the following:

(1) Establish a new permit for State and Tribal fish and wildlife agencies for authorizing certain cormorant management and control activities;

(2) Establish an aquaculture depredation order; and

(3) Both (1) and (2) in combination.

We also announced that several public scoping meetings would be held, and that specific dates and times for the public meetings would be available on the internet at https://www.fws.gov/birds/management/managed-species/double-crested-cormorants.php. A total of four public scoping webinars were convened, two on February 11, 2020, and two on February 12, 2020. Additionally, we conducted two webinars provided only to Tribal members on February 19 and 27, 2020. We provided all attendees of all webinars with information on the following topics regarding cormorants, their management, and the regulations process: (1) Biology and population changes; (2) background of the issues and previous management approaches; (3) current management of conflicts; (4) proposed approaches and alternatives; and (5) the planning process for the NEPA analysis. We also informed attendees that they could provide comments on the proposed actions and the scope of the NEPA review via a website ( http://www.regulations.gov, Docket No. FWS-HQ-MB-2019-0103) or by U.S. mail or hand-delivery to Public Comments Processing, Attn: FWS-HQ-MB-2019-0103; U.S. Fish and Wildlife Service Headquarters, MS: PRB (JAO/3W), 5275 Leesburg Pike, Falls Church, VA 22041-3803.

On June 5, 2020, the Service published a notice of proposed rulemaking (proposed rule; 85 FR 34578), and the Environmental Protection Agency published notice of a draft environmental impact statement (DEIS) (85 FR 34625). The comment period for each continued for 45 days, ending on July 20, 2020. The Department of the Interior's policy is, whenever possible, to afford the public an opportunity to participate in the rulemaking process. We received more than 1,400 comments in response to the ANPR and 1,047 in response to the proposed rule and DEIS. 1 You may review the comments received at the Federal eRulemaking Portal: http://www.regulations.gov in Docket No. FWS-HQ-MB-2019-0103. We considered comments on the ANPR in developing the proposed rule, and comments on the DEIS and proposed rule when developing this final rule. A summary of the comments is included in the 2020 FEIS associated with this rulemaking action, and we incorporate those responses to comments by reference to this rule. We also include additional responses to comments below that highlight important issues raised by the public. Comments and our responses pertaining to information collection are also set forth below in this document in Required Determinations, under Paperwork Reduction Act, as a majority of those comments pertained to information collection issues.

Use of Nonlethal Control: Commenters submitted several questions regarding the required use and efficacy of nonlethal methods used to address conflicts associated with cormorants. Comments appear to focus on two primary concerns: (1) How the Service will enforce or require that permittees implement nonlethal methods first before carrying out authorized take, and (2) how the permittee will determine when nonlethal methods of management are “enough” or insufficient. Commenters also requested clarity on the type of nonlethal control methods the Service expects permittees to use. Specifically, some commenters requested that the Service require that permittees (individual or a new special permit for States and Tribes) “make progress” toward nonlethal solutions to conflicts as a condition of any permit. They further commented that they felt the DEIS did not provide information on how nonlethal methods are used in a comprehensive approach. Members of the general public commented that there is a general bias against nonlethal measures even when nonlethal measures are proven to work. Commenters assert that the Service failed to demonstrate how States and Tribes would satisfy the requirement that people first use nonlethal methods to address conflicts. In addition, commenters also recommended that the Service ensure that States and Tribes applying for the special permit have conclusive data on a site-by-site basis indicating the effectiveness of cormorant management before take begins.

Further, several State agencies expressed concern that a requirement for attempting nonlethal control before lethal control will delay effective management, and that such a requirement would be so complex that it will add unnecessary documentation and time before lethal controls may be used. Similarly, some State agencies mentioned that “redundant” documentation required under the proposed new permit process could delay control and impede success. One State agency commented seeking clarification on implementation of nonlethal methods as well, stating that such a request is not feasible since the geographic distribution of State and Tribal fish hatcheries is too broad and each hatchery is taken on a case-by-case basis. Another State agency commented that nonlethal control methods are often impractical or ineffective, as cormorants become habituated to persistent, affordable methods ( e.g., noise-making deterrents, lasers, harassment from shore by hatchery personnel). Commenters further stated that the size of some hatcheries makes other methods difficult or too expensive to implement. Another commenter suggested that the Service identify a process for the required evaluation of efficacy of nonlethal methods. A State agency recommended that the Service develop guidelines for determining when there is sufficient proof that nonlethal mechanisms are ineffective at resolving conflicts. Another State agency commented that the Service needs to clarify its expectations on use of nonlethal methods to meet the needs of managers, stating that there are certain cases where take is essentially unavoidable, or where there is significant evidence that would indicate, prima facie, the need for take. Yet another State agency also requested that the Service provide States seeking permits with a guide or Best Management Practices on nonlethal methods of resource protection. Lastly, a State agency recommended that the Service develop and provide States with sampling protocols to assist with collecting and analyzing fish population data where cormorant control activities occur.

Some commenters recommended no management of the conflict, or managing the conflict with nonlethal management methods only. And some commenters recommended the “no action” alternative, which would continue to address conflicts associated with cormorants within a specific scope with the issuance of individual permits. Reasons for support of the no action alternative generally indicate that this option would focus lethal control explicitly on birds that are committing or about to commit depredation or harm/damage, identifies and defines a limited and specific set of types of conflicts, requires permittees to demonstrate they have exhausted reasonable nonlethal methods of management, and requires the Service approval lethal control on a case-by-case basis.

Agency Response to use of Nonlethal Control: The Service agrees that harassment of cormorants may be effective in some areas, but ineffective in others. The conditions that dictate this outcome are often site-specific and variable throughout any given year. For example, some commenters note that many catfish farms must employ full-time employees to harass and take cormorants when authorized, but management of the conflict in general is considered an added business expense. Another commenter asserted that nonlethal measures may work for a limited time period, but some birds may become habituated. It is in these situations where the Service anticipates lethal removal of cormorants would be warranted. In addition, as the Service noted in the DEIS and the FEIS, the use of nonlethal methods alone is not an effective management tool to respond to conflicts associated with cormorants, which is why the Service rejected that possible alternative in its analysis.

The Service encourages and expects continued use of nonlethal measures in conjunction with lethal measures where permittees find this approach most effective. Often, a combination of measures is the most effective way to address conflicts associated with cormorants. The Service needs to rely on permittees to make site-specific assessments and employ cormorant conflict management in a manner that makes the most sense, so long as those permittees follow the conditions of the permit. For added clarity in response to these comments, the following is a condition that would be part of any permit issued by the Service under the preferred alternative in this FEIS: States and Tribes and their subpermittees must use nonlethal methods, and independently determine that those methods are insufficient in controlling the depredation conflict, before lethally taking double-crested cormorants. Permittees may also consult with USDA Wildlife Services for additional assistance to determine when nonlethal methods are insufficient.

With regard to methods of nonlethal management methods expected, the new special permit application now includes language intended to be clear and concise. The revised language reads, “(2) For each location(s), describe the nonlethal methods that you have used previously and/or plan on implementing, including (a) active hazing ( e.g., horns, pyrotechnics, propane cannons, etc.), (b) passive deterrents ( e.g., netting, exclusion devices, nest deterrents, etc.), (c) habitat management ( e.g., vegetative barriers, grass management, prey management, etc.), and (d) changes in management practices ( e.g., water level management, fish release timing, etc.).”

With regard to the question in the FWS Form 3-200-90, Permit Application, and the language requesting, “A statement indicating what information will be collected to assess whether the management and take of double-crested cormorants is alleviating the damage or other conflict,” the Service revised this language as well. The revised language is intended to be less ambiguous and better solicit an answer that allows a Service permit staff employee/specialist to make a determination on efficacy. The revised language reads, “Describe your long-term plans to eliminate or significantly reduce the continued take of double-crested cormorants or destruction of eggs/nests.”

With respect to the comment suggesting no management, or only using nonlethal controls, nonlethal management would essentially mean that the Federal Government would not issue any permits or other authorizations ( i.e., depredation permits, depredation orders, control orders, or conservation orders) that would allow the take of cormorants to alleviate depredations or other conflicts. This is an alternative the Service considered but eliminated from further analysis as it would not meet the purpose and need to address cormorant conflicts.

With respect to the “no action alternative,” while individual permits do offer control on a site-specific case-by-case basis, they do not meet the purpose and need for action as cited in the DEIS. Specifically, the no action alternative does not fully address the need for Tribes in the western region of the United States (excluding Alaska), to address cormorant impacts on fisheries—especially on hatchery-raised salmonids. Similarly, the Service is rejecting the no action alternative because it could potentially have a negative effect on wild and publicly stocked fish, as it would not allow for take of cormorants found to be heavily depredating a fishery. Under the no action alternative, the Service expects continued or enhanced conflict between cormorants and some economically important fisheries across the nation, as well as at some hatchery release sites.

Permit Conditions: Several commenters expressed concern that year-round lethal take will lead to high chick mortality through starvation, predation facilitated by human disturbance, a removal of parent(s), and/or exposure. One commenter requested the Service require a control moratorium during the nesting season when chicks are present. Several commenters voiced a preference for the Service to require only nontoxic shot and not allow the use of any lead ammunition. Some commenters also requested the Service specify permit conditions to protect nontarget and federally listed species. Separately, some commenters voiced a preference for the use of decoys when implementing cormorant management actions.

Agency Response to Permit Conditions: The Service views lethal control methods as a last resort for addressing conflicts between avian species and human interests. Lethal take of adults during the breeding season should occur prior to hatching of eggs to avoid the loss of adults that likely would result in orphaning chicks and their ultimate death due to starvation. Adult birds may not be taken at any nest with young in it unless the take of adults addresses a human health and safety issue. In addition, States and Tribes and their subpermittees must make efforts to avoid disturbance to co-nesting species.

This rule limits the use of lead ammunition when persons use firearms to take cormorants. As a standard condition for all permits under this rule, permit holders must use nontoxic shot when using shotguns or other firearms to take cormorants, except when using an air rifle or air pistol due to the limited availability of nontoxic bullets for them.

The Service considered the impacts of issuing depredation permits on nontarget migratory birds, including threatened and endangered species. The Service anticipates the unintentional take of nontarget species will occur infrequently and involve very few individuals of a particular species. An Intra-Service ESA Section 7 consultation Biological Evaluation (ESA BE) was completed to assess if any proposed, threatened, or endangered species or associated critical habitat would be affected by cormorant control. The Service added specific permit conditions for piping plover ( Charadrius melodus ), interior least tern ( Sterna antillarum ), and wood stork ( Mycteria americana ): (1) A buffer zone for wood storks for all activities; (2) a buffer zone for these three birds when discharging firearms; and (3) a buffer zone for these three birds for egg oiling, CO 2 asphyxiation, egg destruction, or nest destruction.

The Service acknowledges that decoys can be effective in luring birds into sites to make them easier to kill, particularly those that are gregarious by nature. In most cases, the kill of birds is higher when using decoys than when they are not used ( e.g., use of decoys in hunting situations). However, in cases concerning depredation issues, animals that may not otherwise depredate a particular area may do so when decoyed into that area. Decoying birds may create, extend, or exacerbate conflicts ( e.g., exacerbating a disease outbreak by attracting additional birds) where an issue may not exist or could be lessened if the birds had not been decoyed into the area; and could limit the ability of entities to obtain relief from cormorant conflicts due to the limited numbers of birds that could be taken to ensure sustainability of cormorant populations. For these and other reasons, decoys may not be used in the Service's depredation permit (50 CFR 21.41).

Western Subpopulation of Cormorants: Several entities commented with concerns regarding the PTL and potential impacts to the western subpopulation of cormorants. Similarly, some commenters also submitted additional data considerations and analyses. Commenters provided many specific empirical details for the Service to consider, but, in general, considerations included the following issues: (1) The confidence interval for this western subpopulation is too large; (2) the take limit for the western subpopulation is much larger than historical take in the West; and (3) there was an error in the equation used to estimate a pre-breeding multiplier.

Agency Response to Western Subpopulation of Cormorants: Based on information received during the public comment period, the PTL for the western subpopulation may not have captured complex and changing population dynamics precipitated by cormorant management in the Columbia River Estuary. To reduce the risk of over-exploiting the western subpopulation, the Service reduced the level of authorized annual take to half the PTL in the DEIS, or 4,539 individuals. This is a maximum allowable annual take level, not a prescribed level. Based on the average past take of cormorants, expected take is unlikely to exceed 2,000 annually. The status of the population can be reassessed at 5-year intervals, and additionally as necessary, and there is a sound monitoring program in place for the western subpopulation, which can estimate how the western subpopulation responds to take subsequent to the habitat management in the Columbia River Estuary.

With respect to the comments on the error in the pre-breeding multiplier, two errors were found in the formula. First, an equation had the denominator and numerator reversed. This was a typo in that the equation was used in its proper form to estimate a pre-breeding multiplier. The reversal did not result in any errors in estimating PTL. Second, an equation to extrapolate cormorant nest counts was missing a term needed to correctly estimate the proportion of nonbreeding birds. The equation as written estimates the number of nonbreeders as a percentage of breeders, whereas it should have estimated the number of nonbreeders as a percentage of the total population. This error was propagated in estimating PTL. Correcting this error caused estimates of PTL to increase 2-3% for each subpopulation.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. In accordance with the criteria in Executive Order 12866, this action is not a significant regulatory action subject to OMB review.

This rule will not have an annual economic effect of $100 million or adversely affect any economic sector, productivity, competition, jobs, the environment, or other units of government. This action will not create inconsistencies with other agencies' actions or otherwise interfere with an action taken or planned by another agency. Our economic analysis determined that this rule is expected to result in positive economic benefits to both the commercial aquaculture industry as well as the recreational sport fishing industry.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

Codifying a new permit for the management of double-crested cormorants provides an additional tool for States and Tribes to appropriately manage conflicts on lands or in waters managed by their respective fish and wildlife agencies within their jurisdictions, while maintaining overall authority for the take of birds within the Service. Further, current regulations allow the take of cormorants only for the purposes of reducing conflicts with and damage to aquaculture, human health and safety, threatened and endangered species (as listed under the ESA) and State-listed species of management concern, and personal property. Many of the conflicts with cormorants involve depredations of sport fish by cormorants, for which there is no relief under current Federal regulations unless warranted to reduce impacts to threatened and endangered fish species listed under the ESA. This new permit would allow the take of cormorants to reduce depredation of wild and publicly stocked fish managed by State fish and wildlife agencies or Tribes, thus enhancing the scope of conflict resolution to more comprehensively address areas of concern. However, the total number of cormorants from each population that can be taken annually will be determined by the Service to ensure that cormorant populations are sustainable.

The Service does not have empirical information to quantify the changes in costs as a result of this new permit, because we do not know how many States and Tribes would avail themselves of this permit and the extent to which conflicts would be addressed using it. However, we expect that the overall cost and regulatory burden to individuals, businesses, and State, Tribal, and Federal government agencies associated with this new permit will be lower than exists under current regulations. The reduction would be the result of fewer requests by States and Tribes for individual depredation permits previously needed compared to single State or Tribal permits that could be used; hence, total costs associated with permit applications and biological assessments of those applications likely will be lower.

This rule is not an E.O. 13771 (“Reducing Regulation and Controlling Regulatory Costs”) (82 FR 9339, February 3, 2017) regulatory action because it is not significant under E.O. 12866.

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq. ), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include finfish farming and fish hatcheries (NAICS 112511) and other types of commercial aquaculture farms (NAICS Code 112519). The small business size standard defined for these businesses (as defined by the U.S. Small Business Administration) is businesses with revenues under $0.75 million.

The Service has difficulties estimating impacts to recreational fisheries because few studies have investigated direct economic impacts of cormorant management on recreational fisheries. Although a few studies have estimated impacts to local economies, loss of fishing day activities in those local areas may be offset through engaging in angling opportunities elsewhere. While it is feasible that this rule could have localized effects on recreational fisheries, data do not exist to predict where those effects could occur. Further research might determine whether any impacts that may be seen at local scales can be extended to larger scales. However, the Service concludes that this rule will result in an overall net benefit to facilities as it will provide another option to control double-crested cormorants that are negatively impacting their operations.

This new permit affects only State and Tribal governments and does not impact small businesses. The new special cormorant permit would be optional and available to State and Tribal fish and wildlife agencies in the 48 contiguous States to manage conflicts specifically associated with cormorants. This permit would provide State and Tribal fish and wildlife agencies flexibility within predefined guidelines to address conflicts caused by cormorants within their jurisdictions.

Commercial entities, such as privately managed aquaculture facilities, would continue to have the opportunity to apply for individual depredation permits to address site-specific conflicts. A higher threshold for annual take associated with this regulation will yield benefits to the aquaculture industry and others in need of individual depredation permits. These benefits result from indirect effects on cormorant populations from a higher threshold of authorized take, and the resulting lower cormorant populations that are projected. The new permit coupled with the continued use of individual depredation permits for commercial aquaculture producers would provide the flexibility to manage cormorants sustainably and authorize take in an equitable fashion across multiple conflicts.

Thus, we are certifying that this rule will not have a significant economic impact on a substantial number of small business entities. Therefore, a regulatory flexibility analysis is not required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we have determined the following:

(a) This rule will not “significantly or uniquely” affect small government activities, because the Federal Government would not require States or Tribes to obtain this permit. By authorizing conflict-management activities at the State or Tribal level, instead of at the Department of the Interior Regional level, management activities will be more responsive and timely than is currently the case. Quicker resolution of conflicts ultimately may result in fewer complaints regarding cormorants. In expanding authority given to the States and Tribes via this permit, workload burdens may shift with more being borne by the States and Tribes and less by the Service. However, a small government agency plan is not required.

(b) We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will not impose a cost of $100 million or more in any given year on local or State government or private entities. The rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector, and the permit is optional to States and Tribes. Those States and Tribes interested in obtaining the new permit would likely have staff and resources in place with dedicated duties falling within the scope of conflicts associated with cormorants. Therefore, this rule is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

In accordance with E.O. 12630, this rule does not contain a provision for taking of private property, and would not have significant takings implications. A takings implication assessment is not required.

This rule would not interfere with the States' or Tribes' abilities to manage themselves or their funds. The new special cormorant permit would be optional and available to State and Tribal fish and wildlife agencies in the 48 contiguous States to manage conflicts specifically associated with cormorants. This permit would provide State and Tribal fish and wildlife agencies flexibility within predefined guidelines to address conflicts caused by cormorants within their jurisdictions. Therefore, this rule would not have sufficient federalism effects to warrant preparation of a federalism summary impact statement under E.O. 13132.

In accordance with E.O. 12988, we have reviewed this rule and determined that it will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

This final rule contains a collection of information that we have submitted to OMB for review and approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. OMB has reviewed the information collection requirements in this rule and assigned OMB Control Number 1018-0175. The new reporting and/or recordkeeping requirements identified below require approval by OMB:

(1) FWS Form 3-200-90, Permit Application—Special Double-Crested Cormorant Permit (50 CFR part 21) (and associated amendments): This new permit would be available only to State or Tribal fish and wildlife agencies responsible for migratory bird management on lands and in waters managed by those agencies within their jurisdictions. Under this permit, the Service would authorize State and Tribal fish and wildlife agencies to conduct lethal take to reduce conflicts involving depredation at State- and Tribal-owned or operated aquaculture facilities (including hatcheries); impacts to health and human safety; impacts to threatened and endangered species (as listed under the ESA and listed species identified in State- or Tribal-specific legislation as threatened or endangered) or those listed as Species of Greatest Conservation Need in State Wildlife Action Plans; damage to State- or Tribal-owned property and assets; and depredations of wild and publicly stocked fish managed by State fish and wildlife agencies or federally recognized Tribes and accessible to the public or all Tribal members. Take activities to prevent depredation on aquatic Species of Greatest Conservation Need may occur only in natural or public waters.

Any State or Tribal fish and wildlife agency wishing to obtain a permit must submit an application (FWS Form 3-200-90) to the appropriate Regional Director containing the general information and certification required by 50 CFR 13.12(a) plus the following information:

a. A brief description of your State's or Tribe's double-crested cormorant conflicts, including physical location(s) and type of conflict specified above in this paragraph (1);

b. A detailed description of the nonlethal methods ( i.e., active hazing, passive hazing, habitat management, and changes in management practices) you have and/or will implement and how activities will address one or more of the issues specified above in this paragraph (1);

c. The requested annual take of double-crested cormorants by life-stage, including eggs and nests;

d. A description of long-term plans to eliminate or significantly reduce continued need to take double-crested cormorants;

e. A statement indicating that the State or Tribe will inform and brief all employees and subpermittees of the requirements of these regulations and permit conditions;

f. A list of all subpermittees who may conduct activities under the Special Double-Crested Cormorant Permit, including their names, addresses, and telephone numbers; and

g. The name and telephone number of the individual in your agency who will oversee the double-crested cormorant management activities authorized under the permit.

States and Tribes applying for the first time must consult with the U.S. Department of Agriculture's Wildlife Services for an assessment of the appropriate level of take and provide recommendations of short-term measures to provide relief from depredation and long-term measures to help eliminate or significantly reduce conflicts. Wildlife Services provides a “Form 37 Permit Review,” which is required to be completed and included with the application for first-time applicants only.

(2) FWS Form 3-202-56, Annual Report: The State or Tribe must submit an annual report (FWS Form 3-202-56) detailing activities, including the dates, numbers, and locations and life stages of birds, eggs, and nests taken and nonlethal techniques utilized, by January 31 for activities conducted during the preceding calendar year. The Service will require an annual report by the State or Tribe prior to any permit renewal.

(3) Recordkeeping Requirements: Any State or Tribal agency, when exercising the privileges of this permit, must keep records of all activities, including those of subpermittees, carried out under the authority of the special permit.

(4) Designation of Subpermittees: States and Tribes may designate subpermittees who must operate under the conditions of the permit. Subpermittees can be employees of State and Tribal fish and wildlife agencies, USDA Wildlife Services employees, and employees of other Federal, State, or Tribal agencies or private companies licensed to conduct wildlife damage abatement.

(5) Landowner Notifications: If a State or Tribe must enter private property to access State and Tribal lands or waters where take is approved in their permit, the State or Tribe must obtain authorization from the private property owner.

Title of Collection: Federal Fish and Wildlife Permit Applications and Reports—Special Double-Crested Cormorants; 50 CFR part 21.

OMB Control Number: 1018-0175.

Form Numbers: FWS Forms 3-200-90 and 3-202-56.

Type of Review: New.

Respondents/Affected Public: State and/or Tribal governments.

Total Estimated Number of Annual Respondents: 711.

Total Estimated Number of Annual Responses: 711.

Estimated Completion Time per Response: Varies from 10 minutes to 16 hours, depending on activity.

Total Estimated Number of Annual Burden Hours: 4,598.

Respondent's Obligation: Required to obtain or retain a benefit.

Frequency of Collection: On occasion for applications, recordkeeping, and designations of subpermittees; and annually for annual reports.

Total Estimated Annual Nonhour Burden Cost: None.

A proposed rule, soliciting comments on this collection of information for 30 days, was published on June 5, 2020 (85 FR 34578). While we received no comments pertaining to information collection in response to the proposed rule, we also solicited comments regarding the DEIS titled “Management of Conflicts Associated with Double-crested Cormorants” (EIS number 20200116) that was published June 5, 2020. Of the 1,047 public comments submitted in response to the proposed rule and DEIS, we received 49 comments from the following entities in response to the DEIS that address the information collection requirements:

As mentioned previously, we incorporate by reference comments and our responses in the 2020 FEIS associated with this rulemaking action, and address below those comments directly relevant to this rule. We arranged the comments addressing the information collections by overarching themes and provide a synopsis of the comments related to each theme, along with the Service's response to each theme, as indicated below:

Several State agencies and organizations commented on the need for funding and technical support to implement a new State-wide special permit as described in the preferred alternative. Commenters expressed concern that a new permit process would be overly burdensome to implement, which could delay cormorant control efforts and impede management success. One State agency asked how much potential new monitoring or reporting a State would have to agree to, and the amount of time and resources that would need to be invested. They expressed concern that funding of population monitoring (and monitoring of take) would be sourced from State budgets if population monitoring is stepped down to the Flyways. Another State agency stated that in order to ensure that monitoring efforts are conducted consistently, the Service should conduct population monitoring or must allocate funding to the States for monitoring. A separate State agency expressed concerns about the burden that the proposed permit will place on States to develop and maintain programs to manage allowable take ( i.e., population monitoring, permitting, and reporting). Similarly, another State agency cautioned that State resources are limited, while a separate State agency inquired whether States will receive financial assistance to implement the new permit. Lastly, the Mississippi and Pacific Flyway Councils also commented that Federal financial support may be needed to manage reporting and monitoring and the ability to administer a cormorant depredation program.

Agency Response to Funding/Resource Concerns: This new permit does not require a State or Tribe to process or issue any depredation permits to entities within their jurisdiction. As stated in the proposed rule and DEIS, States and Tribes would not be required to request a permit, and those entities within States or Tribes not seeking a new permit would continue to be able to apply for individual depredation permits (except those that address wild and publicly stocked fisheries). The Service's purpose and need for this action, however, is to provide the flexibility for a State or Tribe to address spatial and temporal complexity of conflicts. This is because each State and Tribe has different goals and objectives for wildlife management, and, therefore, allowances for flexibility when prioritizing allocation of authorized take must be granted. In all cases under a new permit, States and Tribes would be required to respond to questions as part of a permit application, and document all take that occurs under their permit(s), and provide the Service with a report by January 31 for activities conducted during the preceding calendar year. But the cost and means to implement permit requirements will vary based on the goals of any particular State or Tribe seeking relief from conflicts associated with cormorants. The Service cannot obligate funds to implement a new special permit at this time, nor could the Service accurately project any necessary additional funding for each State or Tribe due to the flexibility provided to them. As with the management of other migratory bird species, the Service expects costs of management to be shared among the Service, States, and Tribes.

Several States, organizations, and individuals commented on the need for more clarity and details from the Service with regard to the development of a cormorant population monitoring program, and how adaptive management will be incorporated. Entities requested that the Service provide an outline of a cormorant population monitoring regime as a foundation for current consideration by stakeholders and as the basis for stakeholder meetings with the Service following the publication of the record of decision. These commenters also asked how much potential new monitoring or reporting a State would have to agree to, and the amount of time and resources that would need to be invested. Some State agencies and Flyway Councils provided specific recommendations for population monitoring. One State agency, for example, requested that the Service provide standardized population monitoring and reporting protocols needed to evaluate impacts of authorized take on cormorant populations, as well as criteria to be used to assess the costs and benefits of take on wild fish stocks, aquaculture facilities, human health and safety, property, and species of conservation concern. Several commenters expressed concern over any requirement that permittees gather data to assess the efficacy of take. Similarly, commenters seek to clarify on who would be required to collect any such data.

Agency Response to Monitoring Plans Concerns: The Service will work with the four Flyway Councils and partnering Federal agencies to develop agreed-upon, standardized monitoring protocols. The purpose of the monitoring protocols will be to provide scientifically defensible estimates and/or indices of double-crested cormorant population abundance, biologically allowable take, and observed take. The protocols will detail agency-specific responsibilities and estimated annual costs associated with monitoring. The Service will also produce a report every 5 years, and additionally as needed, that provides analyses from population-monitoring efforts and other status information. This report would be provided to the public to promote transparency of decision-making and evaluation of the effectiveness of this conflict-management tool. This report would include, but not be limited to: (1) Updated cormorant population status and trends; (2) reported lethal take of cormorants nationally and by cormorant population; (3) updated PTL analyses based on new or more current population information; (4) the state of the conflicts described in the scope of the rule and assessment of a need for continued management, as reported by requests for depredation permits (both individually and programmatically by participating States and Tribes); and (5) a conflict-management decision and justification for either continued management or a proposed new management approach, if appropriate and needed. In providing clarity to potential permittees about the necessary information applicants need to provide in the application, the Service clarifies that the application does not include language that permittees gather data to assess the efficacy of take. Rather, it includes language asking the applicant to provide a description of long-term plans to eliminate or significantly reduce continued need to take cormorants. The Service encourages State and Tribal fish and wildlife agencies to coordinate with subpermittees to assess take measures that address long-term prevention of depredation where possible, and to conduct monitoring in conjunction with the Service as it develops its population monitoring plan.

A number of State agencies recommended that the Service develop guidelines for determining when there is sufficient proof that nonlethal mechanisms are ineffective at resolving conflicts. One State agency requested that the Service provide States seeking permits with a guide or Best Management Practices on nonlethal methods of resource protection. Another State agency recommended that the Service develop and provide States with sampling protocols to assist with collecting and analyzing fish population data where cormorant control activities occur.

Agency Response to Development of Guidelines Concerns: The Service received many comments either in favor of or opposed to using nonlethal methods in all situations. Commenters cited that nonlethal methods are not effective in all cases; some may be cost-prohibitive, and some may not respond well in situations where birds may become habituated to nonlethal management. The Service agrees that harassment of cormorants may be effective in some areas, but ineffective in others. The conditions that dictate this outcome are often site-specific and variable throughout any given year. Some commenters noted that nonlethal measures may work for a limited time period, but some birds may become habituated. The Service stated in the DEIS and the FEIS that the use of nonlethal methods alone is not an effective management tool to respond to conflicts associated with cormorants, which is why the Service rejected that possible alternative in its analysis.

The Service encourages and expects continued use of nonlethal measures in conjunction with lethal measures where permittees find this approach most effective. Often, a combination of measures is the most effective way to address conflicts associated with cormorants. The Service needs to rely on permittees to make site-specific assessments and employ cormorant conflict management in a manner that makes the most sense, so long as those permittees follow the conditions of the permit. For added clarity in response to these comments, the following is a condition that would be part of any permit issued by the Service under the preferred alternative in this FEIS: States and Tribes must use nonlethal methods, and independently determine that those methods are insufficient in controlling the depredation conflict, before lethally taking double-crested cormorants. Permittees may also consult with USDA Wildlife Services for additional assistance to determine when nonlethal methods are insufficient.

Comments from the Flyway Councils indicated an interest in being involved in the development of the Service's monitoring plans. The Mississippi Flyway Council noted that they felt the 5-year monitoring plan seemed reasonable, and suggested the Service consider the participation of Flyway Councils to develop coordinated monitoring. The Central Flyway Council indicated support for developing monitoring plans, and recommended that the four Flyways contribute recommendations on reasonable take allocations. A State agency recommended the Service use the Flyway system to assist in the allocation of permitted lethal removal of cormorants, due to the pressing need to resolve cormorant conflicts across broad geographic regions.

Another State agency requested that the Service convene meetings with the Flyways and other relevant stakeholders to develop a specific cormorant population monitoring plan. The need to ensure adequate monitoring and reporting to manage take while considering the limited State resources was cited by some State agencies as well. One State agency also noted a concern for how Flyways would fund and provide resources for additional monitoring and reporting of cormorant populations and lethal take, as much of their funding comes from State budgets.

Another State agency commented suggesting that the involvement of the Flyway Council could be beneficial in the development of monitoring plans, but felt that monitoring plan development should be the extent of their involvement, since their nongame technical section has little relevant experience with the management of overabundant species. Both the Mississippi Flyway Council and a State agency in that flyway encouraged the Service to align their regulatory cycle with the Flyway Council's summer meeting to provide sufficient time for States to properly and carefully consider the Service's regulatory proposals.

The Mississippi Flyway Council recognized, supports, and appreciates that, under Alternative A, some States and Tribes in the Flyway not wishing to establish a new permit system, as well as commercial aquaculture facilities experiencing cormorant issues, have the option to apply for depredation permits under 50 CFR 21.41. Lastly, the Central Flyway Council recommended the Flyway process be used to notify the Service of which States within each Flyway will be participating in the new permit.

Two stakeholders submitted comments regarding adaptive management. One stated that the Service did not address adaptive management in the information collection. Another stated that the concept of adaptive management only appeared once in the DEIS, in reference to the perceived benefits of Alternative A allowing flexibility in a State's or a Tribe's cormorant control strategies to achieve desired fisheries benefits.

Agency Response to Flyway Council and Adaptive Management Concerns: Regarding population monitoring and adaptive management, the Service will work with the four Flyway Councils and partnering Federal agencies to develop agreed-upon, standardized monitoring protocols. The Service will make every effort to align coordination with the Flyway Councils around their meetings throughout the calendar year. The purpose of the monitoring protocols will be to provide scientifically defensible estimates and/or indices of double-crested cormorant population abundance, biologically allowable take, and observed take. The protocols will detail agency-specific responsibilities and estimated annual costs associated with monitoring. The Service will also produce a report every 5 years, and additionally as needed, that provides analyses from population-monitoring efforts and other status information. This report will be provided to the public to promote transparency of decision-making and evaluate the effectiveness of this conflict-management tool. This report will include, but not be limited to: (1) Updated cormorant population status and trends; (2) reported lethal take of cormorants nationally and by cormorant population; (3) updated PTL analyses based on new or more current population information; (4) the state of the conflicts described in the scope of the rule and an assessment of the need for continued management, as reported by requests for depredation permits (both individually and programmatically by participating States and Tribes); and (5) a conflict-management decision and justification for either continued management or a proposed new management approach, if appropriate and needed.

Several entities and State agencies commented in support of an aquaculture depredation order in conjunction with a new special State and Tribal permit addressing conflicts associated with cormorants. Some State agencies also voiced support for a new aquaculture depredation order or a new general depredation order without commenting specifically on a new State or Tribal special permit. One State agency referenced the DEIS by concluding that the environmental impacts between Alternatives A and C would be similar, and stated that Alternative C would provide greater efficacy and less administrative burden for their agency. Another commenter submitted a similar comment and voiced support for a nationwide depredation order. Other entities also commented in support of an aquaculture depredation order in general, stating that individual permits are not effective and the proposed rule does not provide a lethal take management option for commercial aquaculture facilities such as catfish farms. A State agency also commented in support of Alternative C, citing specific support for a new special State and Tribal permit and the ability for States to manage their own water resources. A nongovernmental organization commented in support of a nationwide depredation order, stating that individual depredation permits are ineffective due to the unpredictable migratory patterns of cormorants making it difficult to effectively assess where individual permits are needed.

Commenters in support of a new aquaculture depredation order suggested that this alternative would reduce the administrative and regulatory burden on the Service and the aquaculture industry, and emphasized that individual take permit applications are a significant burden for small businesses. These commenters asserted that low take limits for individual permits are sometimes arbitrarily set by regional agency offices, making these permits inefficient, and that small businesses would be required to continue to apply for individual take permits. One aquaculture farmer spoke about complications with having to apply and pay for two separate permits at two separate regional offices due to having farms in bordering States. A State agency commented in disagreement with the assertion that the requirement to track take of cormorants under Alternative A is less burdensome than for other alternatives and that reporting requirements under most alternatives could be structured to equally assess take levels.

A Tribal Commission commented in support of Alternative D, a general depredation order. They also suggested that the Service include Federal lands in this alternative in order to allow State and Tribal wildlife managers the necessary flexibility to manage cormorants effectively and efficiently for the resources that need protection. This Commission further states Alternative D is ideal to maximize flexibility in protecting out-migrating juvenile salmon and steelhead as it includes all lands where cormorants impact fisheries resources throughout the Columbia River basin.

Lastly, an industry association commented in support of the vacated depredation order, and not the depredation orders analyzed in the DEIS.

Agency Response to Depredation Order Comments: As explained in the DEIS, the Service would apply an annual maximum allowable take threshold across all the needs identified by stakeholders. The Service determined this threshold by using a Potential Take Limit (PTL) model, which uses underlying cormorant population metrics (productive rates, survival rates, etc.) to calculate an annual allowable take level. This is the same type of model used to sustainably manage some migratory game bird species (band-tailed pigeons) and take levels for species such as black vultures. By establishing an annual sustainable take threshold, and ensuring systems are in place to keep take below that threshold, the Service will implement the robust tool needed to assess the effects of take on cormorant populations to address potential legal challenges.

Under the vacated aquaculture depredation order, aquaculture facilities were required to annually report lethal cormorant control activities. This system of limited accountability and self-reporting with a year time-lag was not adequate to consistently track authorized take on a national scale. In addition to timing, the lack of reliable annual take from information under the previous depredation orders complicated our ability to assess the impacts of the orders on cormorant populations.

The Service must be capable of tracking take by all authorization mechanisms available throughout the year. Presently, however, the Service does not have the necessary process or resources to adequately monitor take under any new depredation order. This is because, unlike the use of a permit system, the Service cannot track take under a depredation order until the take has already occurred, creating a greater probability that the take will exceed the maximum limit before it is reported. To adequately track take under any new depredation order, whether that order be the vacated orders, or those analyzed in the DEIS, the Service needs to develop a mechanism that allows take to be tracked in real time, such as the Canada Goose Registration database (50 CFR 21.50). Such a tool would reduce the likelihood of exceeding the annual take threshold or reaching the annual take threshold prior to the end of the year. Additionally, a registration/tracking tool would only be effective if those using the depredation order were willing to register and report take numbers on a regular and frequent basis. Since a tracking system is not currently in place, this alternative is not ripe for decision. The Service must therefore continue to rely on individual permits for private and commercial entities.

The Service will continue to issue individual depredation permits and is not proposing to implement any new cormorant depredation orders anywhere in the United States at this time. Based on information received during the public comment period, the PTL model for the western subpopulation may not have captured complex and changing population dynamics precipitated by cormorant management in the Columbia River Estuary. To reduce the risk of over-exploiting the western subpopulation, the Service will initially limit that annual take to half the PTL in the DEIS, or 4,539 individuals. This is a maximum allowable annual take level, not a prescribed level. Based on past take of cormorants, expected take is unlikely to exceed 2,000 annually.

In regard to comments questioning which entities may remain eligible to apply for and receive individual depredation permits, the Service acknowledges this complexity and refers commenters to Table 1 in the FEIS, “Differences In Regulatory Frameworks That Would Address Conflicts Across All Alternatives,” which outlines how each alternative in the NEPA analysis would employ different proposed regulatory frameworks to address conflicts relating to cormorants. The preferred alternative would establish a new, optional permit that would be available to State and Tribal fish and wildlife agencies in the 48 contiguous States to manage conflicts specifically associated with cormorants. This alternative would provide State wildlife management agencies and Tribes flexibility within predefined guidelines to address conflicts caused by cormorants within their jurisdictions. As stated in the rule and NEPA analyses, States and Tribes would not be required to request a permit, and those entities within States or Tribes not seeking a new permit would continue to be able to apply for individual depredation permits (individual depredation permits would not authorize the take of cormorants to protect wild or stocked fish except when circumstances require the protection of federally listed species). Commercial aquaculture facilities would continue to have the ability to apply for individual depredation permits (50 CFR 21.41) from the Service. Regarding the individual's comment about having to apply and pay for two separate permits at two separate regional offices due to having farms in bordering States, the Service emphasizes that multiregional depredation permits will remain available for these circumstances. For example, the regional office to which a commercial aquaculture producer would apply can issue a permit for more than one State and across regional boundaries. This would require a coordination step between those two regional permit offices, which is a standard operating practice for the Service when an applicant seeks to take migratory birds from States that occur in different administrative regions.

Allocation and Scope of Authorized Take: Several commenters submitted questions pertaining to how the Service would manage overall allocation of authorized take of cormorants. Generally, commenters asked how the Service would: (1) Allocate take among all existing authorizations for take, including a new State and Tribal permit; (2) account for regional take under the national permit system; and (3) determine an upper limit of take for each State. For example, two State agencies commented on the need to understand how the Service would allocate take among all authorization mechanisms. Another State agency also commented on the need for clarity on how annual take, both at the State and regional level, would be shared among the States and Tribes so that they can make informed determinations in successive years. Another State agency stated that the method by which take will be allocated across the western population is unclear from the DEIS and needs to be clarified. The Central Flyway Council requests the Service engage the four administrative flyways so they can provide recommendations to the Service on reasonable take allocation among States and flyways. One individual commented with concern that States may take the majority of the allocated take within a cormorant subpopulation's allowable take threshold within the PTL. This commenter further states that there is no structure to ensure that take for resources will be balanced (prioritization) or that a diversity of stakeholder interests will be considered.

Several State agencies and commenters voiced a need for clarity on the scope of authorized take within a new cormorant depredation permit for States and Tribes outlined in the proposed rule. Specifically, commenters requested clarity on the scope of circumstances for when take would be authorized, the geographic and temporal scope, and whether the new special permit would apply to private property owners and Species of Greatest Conservation Need (SGCN) as identified in State Wildlife Action Plans. Commenters stated that this clarity is needed to understand where and when States and Tribes can implement take of cormorants. For example, two State agencies recommended rewording “wild and publicly stocked fish stocked by State agencies or Tribes” to “wild and stocked fish managed by State agencies or Tribes.” Another separate State agency stated that a State agency may need to apply control of cormorants on public waters, which can occur in cases where a State does not own the land, and recommends the final rule language be revised from, “Lands under the jurisdiction of the State,” to “Lands and/or public waters under the jurisdiction of the State.” Similarly, another State agency sought clarification on the language used in the proposed rule, and referenced “state or tribal lands” and “respective jurisdiction.”

One private entity commented that the proposed rule should not limit State cormorant control efforts to only those water bodies where impact studies have been performed, and should be revised to provide relief for water bodies with “publicly stocked fish” to include “publicly accessible fisheries” to include protection for wild fish. A State agency similarly requested that the Service provide States with standardized guidance on determining when take is warranted to support fish resources, and to reduce conflicts associated with risks to human health and safety, property, and species of conservation concern. A separate State agency commented about the scope of the conflicts, and asked if a State permit is the only way a State can address cormorant conflicts. That agency further asked about possible ramifications of opting out of the permit system, and if there will still be a mechanism by which a State can address wild fishery conflicts with cormorants.

Agency Response to Allocation and Scope of Authorized Take Comments: States and Tribes would not be required to request a permit, and those entities within States or Tribes not seeking a new permit would continue to be able to apply for individual depredation permits (except those that address wild and publicly stocked fisheries). The Service cannot yet provide the specificity requested on how the allocation of individual permits for aquaculture facilities and property owners would occur because the Service does not yet know how many States or Tribes would request the proposed new permit. However, the Service understands that States and Tribes need clarity on the Service's expectations for an acceptable level of requested take in an application for a new permit. Permittees would be restricted to maximum levels of take authorized, designed not to exceed the PTL within the subpopulation where the State or Tribe is located. This level of authorized take would depend on: (1) Which States and Tribes seek a new special permit within the same subpopulation analyzed within the PTL; (2) an assessment by Service permit staff of the available level of take each year within the specific subpopulation where the State or Tribe is located; and (3) an assessment by Service permit staff of the historical information of authorized take of cormorants due to depredation in the past. However, allocation of authorized take may be modified as conditions change once take is allowed. The Service encourages interested States and Tribes to communicate with the Service during the application process to best determine prioritization and allocation of authorized take of cormorants.

The Service appreciates the comments that the scope of where take activities could occur may be too limiting relative to the areas that States and Tribes manage for fisheries. The Service therefore revised the language in the final rule to better encompass the lands and waters managed by State and Tribal fish and wildlife management agencies stating that, under this (special double-crested cormorant) permit, the Service authorizes State and Tribal fish and wildlife agencies to conduct lethal take of double-crested cormorants that is normally prohibited and is intended to relieve or prevent impacts from cormorants on lands or in waters managed by those agencies within their respective jurisdictions. The scope of management and take activities conducted under the permit is intended to reduce or prevent conflicts associated with cormorants for the following concerns:

1. Depredation of fish at State- and Tribal-owned or operated aquaculture facilities, including hatcheries;

2. Realized and potential impacts to human health and safety ( e.g., collisions of airplanes with birds, fecal contamination of urban wetlands);

3. Impacts to threatened and endangered species (as listed under the ESA and listed species identified in State- or Tribal-specific legislation as threatened or endangered) or those listed as Species of Greatest Conservation Need in State Wildlife Action Plans, where take activities to prevent depredation on aquatic Species of Greatest Conservation Need may occur only in natural or public waters;

4. Damage to State- or Tribal-owned property and assets; and

5. Depredation of wild and publicly stocked fish managed by State fish and wildlife agencies or federally recognized Tribes and accessible to the public or all Tribal members.

Geographic and Temporal Scope: Some commenters inquired about the geographic scope of a new State or Tribal permit, stating that implementation of lethal control of cormorants to reduce impacts on aquaculture, wild and stocked fisheries, human health and safety, property, and species of conservation concern should be authorized at a biologically sustainable level for the Alaska, Pacific Coast, Interior, Atlantic, and Southern breeding cormorant populations. These entities commented that the scope of the new special cormorant permit would allow States and Tribes to be able to take cormorants at any location and at any time.

Agency Response to Geographic and Temporal Scope Comments: The new permit would be available to all States and federally recognized Tribes in the contiguous 48 States. The geographic scope of the new State or Tribal permit is authorized at biologically sustainable levels for each subpopulation. To ensure biological sustainability, the Service used the most recent cormorant population data available to develop the PTL model. The PTL is a biologically based model and evaluates allowable take of cormorants in the contiguous 48 States. The Service regularly uses PTL models to determine sustainable levels of take and has concluded that if this level of take were to be authorized, it would be biologically sustainable based on knowledge of cormorant population dynamics. The PTL sets the upper limit for allowable take; it is not a take prescription. The PTL limits apply to take for entire subpopulations ( i.e., Florida, Western, and Atlantic plus Central). The number of birds authorized for take for each subpopulation will depend on (a) the number of States that request a State permit, and (b) the number of birds each State/Tribe requests to take in order to minimize their particular conflict. Regarding the comment about the geographic scope and the inclusion of Alaska, the Service notes that the Alaska population is not included.

On the comment of taking cormorants at any location and at any time, actions under the permit may be conducted during any time of the year, unless specified otherwise in the permit's terms and conditions. Specific conditions include those pertaining to lethal take during the breeding season. Lethal take of adults during the breeding season must occur prior to hatching of eggs to avoid the loss of adults that likely would result in orphaning chicks and their ultimate death due to starvation. Adult birds may not be taken at any nest with young in it unless the take of adults addresses a human health and safety issue.

Private Property Owners: Several commenters also requested the Service include provisions that allow for the lethal take of cormorants on private property, particularly to protect fish that are stocked by the landowner for their personal use. One State agency recommended that the Service include private recreational pond owners in the scope of the new permit. Some commenters voiced concerns that, if such provisions are not allowed, landowners will take matters into their own hands to protect their fish and that the presence of and depredation by cormorants on stocked fish in private ponds would negatively impact recruitment of new anglers.

Agency Response to Private Property Owners: The Service, in some instances, does allow the take of migratory birds to protect private property. Private landowners may apply for a depredation permit (50 CFR 21.41) to alleviate damage to some types of property ( i.e., buildings and infrastructure, vehicles and equipment, some types of vegetation). However, by policy, the Service's Migratory Bird Program does not issue permits to prevent depredation or harm to privately owned animals ( e.g., hobby animals, pets, or similar categories of animals) that are raised free-range or otherwise released to the wild. Numerous nonlethal means, such as harassment, use of effigies, habitat modification, and others, are available to landowners who maintain animals in natural-like environments. Regarding the comment suggesting that some landowners may unlawfully take cormorants if they do not receive authorization to do so from the Service, we recognize that this activity may occur, but we can neither prevent unlawful activity nor predict where and when unlawful activity would occur in such cases. However, landowners taking such actions would face the possibility of being cited for violations of the MBTA, as well as fines for such violations.

Species of Greatest Conservation Need (SGCN): Several State agencies also commented on the need to include conflicts related to SGCN as identified in State Wildlife Action Plans. Because not all States have State-designated lists of threatened and endangered species within their State, some State agencies recommended that the language of the rule be changed to “state or tribal species of greatest conservation need,” in reference to lists created for State Wildlife Grants. Similarly, another State agency recommended greater flexibility for State fish and wildlife agencies to authorize take to protect SGCN species. Another agency stressed in the comments responding to the DEIS and the ANPR that, when determining priority and allocation of allowable take of cormorants, the protection of special-status resources should have first priority. The Central Flyway Council stated that the final rule should include conflicts related to SGCN as identified in State Wildlife Action Plans in the scope of the new special permit.

Agency Response to SGCN Comments: With regard to Species of Greatest Conservation Need as identified in State Wildlife Action Plans, the Service agrees. One of the stated needs for action is to address impacts from cormorants on special status species. Impacts may involve competition for nest sites, competition for food, reducing available nesting space and nesting material for co-nesting species, habitat degradation, and nest abandonment resulting from habitat degradation. Therefore, the Service included new language within the scope of the preferred alternative, which now states, “listed species identified in State- or Tribal-specific legislation as threatened or endangered) or those listed as Species of Greatest Conservation Need in State Wildlife Action Plans, where take activities to prevent depredation on aquatic Species of Greatest Conservation Need may occur only in natural or public waters.”

Several stakeholders inquired as to the specific requests for information required in a new special permit. Commenters also expressed concern regarding the Service's commitment to producing a report every 5 years. One nongovernmental organization asserted that the Service's reporting plan is inadequate as it will produce a report providing analysis of population monitoring efforts only every 5 years, and instead recommends it be done annually. Regarding reporting by permittees, both the Central Flyway Council and a State agency recommended authorization of a 5-year State and Tribal permit with annual reporting requirements, to provide the Service with timely data regarding take while reducing the Service's staff time needed to process annual permit renewals. The Central Flyway Council recommended annual reporting of control activities conducted under each permit, similar to what was required in the past, and a periodic cormorant population assessment at a decadal interval while encouraging the Service to explore the efficacy of existing monitoring programs. Another State agency suggested commercial aquaculture facilities and private landowners be required to report annually, at a minimum, and noted that issuing annual permits provides accurate and timely reporting to maintain compliance with permit provisions. Separately, another State agency recommended that the Service provide detailed criteria regarding the annual reporting requirements.

The Central Flyway Council opined that increased reporting requirements and intensive monitoring of cormorant populations would be difficult for many State wildlife agencies, given limited personnel and budget constraints. One State agency in that flyway requested clarification on how much potential new monitoring or reporting a State would have to agree to, and the amount of time and resources that would need to be invested.

Both the Pacific Flyway Council and a State agency in that flyway stressed the importance that any expectation of monitoring and reporting needed to implement the proposed new permit system must be backed with a robust program of Federal funding to support the duration of the monitoring activities. The Pacific Flyway Council also noted a concern that the costs of permit management, reporting, and monitoring will detract from other species conservation work, which is already difficult due to limited funding. A separate State agency commented with concern for the burden that the proposed permit will place on States to develop and maintain programs to manage allowable take ( i.e., population monitoring, permitting, and reporting). One private entity questioned whether the requirement to provide information to evaluate control efforts could become so complex and cumbersome that it curtails action, citing the information collected for a considerable amount of time by State agency wildlife professionals.

A State agency requested clarification of the Service's expectations with regards to permitting, monitoring, and reporting requirements on waters managed by private landowners. Another State agency noted that it does not desire the authority to issue take permits to other entities within their State to address aquaculture conflicts, property damage, nuisance, or human safety issues. Another State agency noted that the renewal of subpermittee authority would be conditional on timely and accurate reporting, and recommended that steps be taken to ensure data collection is timely, accurate, and complete by all persons authorized to take cormorants (offering a comparison to the Resident Canada Goose Nest and Egg Depredation Order under 50 CFR 21.50 (OMB Control No. 1018-0146)).

Separately, one State agency requested that the Service provide standardized population monitoring and reporting protocols needed to evaluate impacts of authorized take on cormorant populations, as well as criteria to be used to assess the cost and benefit of take on wild fish stocks, aquaculture facilities, human health and safety, property, and species of conservation concern. Another State noted their assumption that, under a special permit, the prioritization of issued take ultimately would be the responsibility of the respective State fish and wildlife agencies or Tribes to manage accordingly, including reporting. Yet another State opined that the reporting requirements for the proposed permit system are unclear.

Agency Response to Reporting Requirements Concerns: The Service will require, as part of receiving a permit, an annual report that must be submitted by January 31st each year. The annual report requires the permittee to include location of take (GPS coordinates in decimal degrees), purpose of take (aquaculture, health, threatened or endangered species, property, stocked fish), nonlethal methods implemented, month taken, quantity taken (birds killed, nests oiled/addled, and nests destroyed), and disposition of carcass ( e.g., buried, incinerated, donated).

Given the controversial nature of this issue and the novel approach toward reducing conflicts, the Service concludes annual permits and annual reporting by permittees are appropriate at this time. As we gain experience with this program, the Service could consider permits of longer duration, but additional NEPA analyses may be required for any additional rulemaking procedures or amendments.

Take of cormorants will be compiled annually and information can be made available if needed prior to completion of the 5-year reports. However, as with any bird population monitoring efforts, variation throughout the year, due largely to sampling error, can be quite high. The Service concludes that assessing population status over a 5-year period will avoid inappropriate decisions based on observed, but not necessarily real, annual changes in abundance, and still be sufficient to ensure sustainable populations of cormorants.

The new special permit would not apply to private landowners. Private property owners may apply for a depredation permit (50 CFR 21.41) to the Service to alleviate damage to some types of property ( i.e., buildings and infrastructure, vehicles and equipment, and some types of vegetation).

Several commenters requested clarity about who a State or Tribe may delegate authority to as a subpermittee under a new permit to conduct take of cormorants. One State recommended that the Service allow willing States and Tribes to issue permits to subpermittees, with the subpermittee's renewal authority conditional on timely and accurate reporting. Another State agency requested clarity on the level of authority given by a State or Tribe to carry out lethal take, asking if this would be limited to only State agency personnel, or other private and public entities or persons as authorized by States. For example, one State commented that the language related to subpermittees should read, “Subpermittees may be, but are not limited to, employees of state and tribal wildlife agencies, Wildlife Services employees, and employees of federal and state agencies or private companies specializing in wildlife damage abatement.” Some commenters opined that the Service should define the level of training and control needed to ensure people operate in a humane, accountable, and lawful manner.

Agency Response to Designation of Subpermittees Concerns: The Service agrees with the need to provide further clarification of the role that subpermittees may play, and to identify who can operate as a subpermittee pursuant to a permit issued under this rule. The final rule states that subpermittees “can be employees of State and Tribal wildlife agencies, USDA Wildlife Services employees, and employees of Federal and State agencies or private companies specializing in wildlife damage abatement and under direct control of the permittee.” The Service is limiting subpermittees to these entities because in some areas other cormorant species and look-alike species ( e.g., anhingas) can overlap in specific ranges and habitats with double-crested cormorants. Professional biologists and trained experts are more likely to be able to differentiate between these species and reduce the possibility of taking nontarget species.

There are many levels of training that vary widely across the country that may be appropriate. The Service will not identify specific training requirements necessary to become a subpermittee. Rather, we expect that the categories of individuals listed above will have the skills, or could readily acquire the skills, to accurately identify double-crested cormorants and differentiate other look-alike species to avoid taking them. Further, by virtue of their positions, we expect that all such employees will operate in a humane, accountable, and lawful manner. The authority to take double-crested cormorants conferred by the permit is given to the State or Tribal fish and wildlife agency, and those agencies may designate permittees that the Service approves on the application for the permit. To provide added clarity, the Service included as part of the application for a new permit that permittees must agree that, “(e) Anyone taking birds under this permit must be skilled in double-crested cormorant identification. Nontarget take of any other avian species must be reported to your permit office with your annual report including species, number, and description of events.” The application for this permit can be found in Appendix H of the FEIS, and we cross-reference the FEIS for additional comments and responses on this issue not directly related to this rulemaking. Further, any birds incidentally taken would be reported by States and Tribes, and the Service would use this data to better track accidental take of these species when take of cormorants occurs, and recommend appropriate actions such as additional training of personnel, or avoiding areas where there is a high concentration of non-target species in the area.

Some entities commented that the Service would need to ensure that current depredation permits for take of cormorants continue to be issued under 50 CFR 21.41, as population levels allow. These commenters stated that depredation permits are essential to manage the effects of increased double-crested cormorant populations on migrating salmon and steelhead smolts. One State agency requested clarity on which entities remain eligible to receive individual depredation permits for those States that do choose to obtain a special statewide depredation permit, noting that they do not desire the authority to issue take permits to other entities within their State to address aquaculture conflicts, property damage, nuisance, or human safety issues. This particular State agency requested the preferred alternative include a specific statement affirming the continued availability of individual depredation permits for entities within States that choose to obtain a special depredation permit. Another State agency requested clarification on how the Service will account for the illegal take of cormorants. This State agency also inquired as to whether they should apply for and receive 150 permits. They ask if it is possible for the Service to consider a higher level of take (150 permits) under Alternative E for hatcheries to correspond to the higher level of authorized take, or the maximum allowable take, in Alternatives A-D. This State asserts that they operate four State-owned hatcheries, where fingerlings are raised for stocking public water bodies for the enjoyment and recreational use of fisheries resources by the public. The current number of depredation permits allocated to this State appears to be helpful in reducing fingerling depredation and pond liner damage, but not adequate to prevent still significant losses to production and facilities. Therefore, this particular State requested 150 cormorant depredation permits, regardless of the management alternative selected, to better manage cormorant populations at its State hatchery facilities.

Some commenters stated that the Service failed to address the cumulative impacts of climate change and other cormorant take, and should therefore evaluate the cumulative impact of other cormorant take, such as the planned hunting seasons in Ontario, Canada.

Agency Response to General Comments Concerns: Individual permits would still be available to address some depredation activities. However, conflicts associated with cormorants and wild or publicly stocked fish would only be addressed through the special cormorant permit, which would only be available to fish and wildlife agencies of States and federally recognized Tribes in the contiguous 48 States. Entities other than private landowners who want to reduce depredations of fish in their private ponds may be eligible to apply for permits other than the special cormorant permit.

The PTL estimate considers all forms of take and is conservative in that the lower 60 percent confidence interval of the PTL was used. However, in the NEPA analyses where comparisons are made to historical take data, historical take only included legal take. The Service was not able to include data relating to any potential illegal take of cormorants in the PTL. This is because the Service does not have the ability to adequately track where and when individuals might illegally take cormorants. If in the future the Service is sufficiently able to track and monitor illegal take across the broad geographic scale represented in the PTL, then this data can be counted against PTL. If illegal take is substantial, however, then this factor should also become an enforcement issue in the management of cormorants.

The Service encourages the State and Tribal agencies to seek a new permit under this final rule to accomplish its goals, as that permit would be less costly, but also sufficient for a State or Tribe to meet its needs. Permits under this rule will provide the flexibility to State and Tribal fish and wildlife agencies to address conflicts related to the following issues: Wild and publicly stocked fish managed by State fish and wildlife agencies or federally recognized Tribes; Tribal- and State-owned or operated aquaculture facilities (including hatcheries); human health and safety; State- or Tribal-owned property and assets; and threatened and endangered species or those listed as Species of Greatest Conservation Need in State Wildlife Action Plans. If a State or Tribe determines a permit under this rule would meet their needs, upon receiving the permit, that State or Tribe would have the discretion to determine whether, when, where, and for which of the above purposes they conduct lethal take within limits and allocations set by the Service.

The Service used population data from Canada in the subpopulation estimates, and will work closely with Ontario on population monitoring and obtain take data and incorporate it into our assessments. Our DEIS discussed climate change, and we noted that there remains some uncertainty regarding effects of climate change, but the Service can estimate that there will likely be less water available in the Great Basin, and cormorant colonies may shift locations. Cormorants may be able to stay and forage longer in northern portions of the Interior and Atlantic subpopulations, and it is possible that breeding seasons may lengthen. The Service makes decisions given this uncertainty by using the data and modeling available and adapting through time as change occurs. The planned 5-year assessment will address this issue.

The U.S. Small Business Administration (SBA) commented in support of an aquaculture depredation order in combination with a new special permit for States and Tribes. SBA stated that, prior to the previous aquaculture depredation order being vacated, commercial aquaculture producers were able to manage cormorant populations while not exceeding the allowable take limits established by the Service. SBA further stated that this rulemaking has the potential to increase costs to small private aquaculture facilities that are not otherwise able to employ effective methods of controlling cormorant damage and that have seen and may well continue to see an increase in cormorant feeding. SBA further stated that individual depredation permit applications are a significant burden for small businesses, citing lower take limits for cormorants and complications among Service regions in issuing permits. SBA stated that an aquaculture depredation order would eliminate these burdensome and time-consuming application requirements. SBA also cautioned that the Service should not require documentation of revenue increases as part of any new aquaculture depredation order, as this would result in additional administrative costs associated with recordkeeping. SBA recommended that the Service consider other sources of data, and methods of data collection other than reporting increased revenue data, to measure the success of conflict management programs. SBA urged the Service to consult with industry directly to devise a cost-effective and more accurate method of data collection.

Agency Response to Impact on Small Businesses Concerns: This collection associated with the new permit affects only State and Tribal governments, and does not impact small businesses. Commercial entities, such as privately managed aquaculture facilities, would continue to have the opportunity to apply for individual depredation permits to address site-specific conflicts. Information collection requirements associated with individual depredation permits are outside the scope of this rulemaking.

In response to comments about a new aquaculture depredation order, we reference our response above. The Service must be capable of tracking take by all authorization mechanisms available throughout the year. Presently, however, the Service does not have the necessary process or resources to adequately monitor take under any new depredation order. However, the Service established a new, higher threshold for annual maximum allowable take using the most recent biological information. While the Service is best equipped to accurately monitor the authorized and actual take of cormorants throughout the year under preferred Alternative A (the new State and Tribal permit in this final rule), a higher threshold for annual take will still yield benefits to the aquaculture industry and others in need of individual depredation permits. These benefits result from indirect effects on cormorant populations from a higher threshold of authorized take, and the resulting lower cormorant populations projected in the EIS. The new special cormorant permit would be optional and available to State and Tribal fish and wildlife agencies in the 48 contiguous States to manage conflicts specifically associated with cormorants. This permit would provide State wildlife management agencies and Tribes flexibility within predefined guidelines to address conflicts caused by cormorants within their jurisdictions. The new permit coupled with the continued use of individual depredation permits for commercial aquaculture producers would provide the accountability and flexibility to manage cormorants while ensuring populations are managed sustainably and take is authorized in an equitable fashion across multiple conflicts.

As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on any aspect of this information collection, including:

(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;

(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;

(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and

(4) How the agency might minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of response.

Written comments and recommendations for the information collection should be sent within 30 days of publication of this document to www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function. Please provide a copy of your comments to the Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W), Falls Church, VA 22041-3803 (mail); or Info_Coll@fws.gov (email). Please reference OMB Control Number 1018-0175 in the subject line of your comments.

We evaluated this regulation in accordance with the criteria of NEPA, the Department of the Interior regulations on implementation of NEPA (43 CFR 46.10-46.450), and the Department of the Interior Manual (516 DM 8). On June 5, 2020, the Service published a DEIS, and the comment period ended on July 20, 2020. You may review the comments received at the Federal eRulemaking Portal: http://www.regulations.gov in Docket No. FWS-HQ-MB-2019-0103. We considered comments on the DEIS when developing this final rule, and a summary of the comments is included in the FEIS associated with this rulemaking action. The Service initiated development of the FEIS prior to the establishment of updated Council on Environmental Quality regulations on September 14, 2020, and, therefore, the FEIS is written to comply with the previous regulations. You may review the DEIS, FEIS, and the comments received at the Federal eRulemaking Portal: http://www.regulations.gov in Docket No. FWS-HQ-MB-2019-0103. We will issue a record of decision no sooner than 30 days after the Environmental Protection Agency publishes notice of the FEIS in the Federal Register .

Section 7 of the ESA (16 U.S.C. 1531-44) requires that “The Secretary [of the Interior] shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act” (16 U.S.C. 1536(a)(1)). It further states that “[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat.” We have complied with provisions of the ESA as necessary to ensure that this new regulation is not likely to jeopardize the continued existence of any species designated as endangered or threatened or destroy or adversely modify its critical habitat.

In accordance with Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” and the Department of the Interior's manual at 512 DM 2, we have considered the possible effects of this rule on federally recognized Indian Tribes. The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation when appropriate and recognition of their right to self-governance and Tribal sovereignty. We readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. We evaluated this rule under the criteria in Executive Order 13175 and under the Department's Tribal consultation policy and have determined that this rule may have a substantial direct effect on federally recognized Indian Tribes.

In February we held four public scoping webinars and then two webinars only for Tribal members (February 19 and 27, 2020). We provided the attendees of all the webinars with information on the following topics regarding cormorants, their management, and the regulations process: (1) Biology and population changes; (2) background of the issues and previous management approaches; (3) current management of conflicts; (4) proposed approaches and alternatives; and (5) the planning process for the NEPA analysis. We also informed attendees that they could provide comments on the proposed actions and the scope of the NEPA review via a website or by U.S. mail or hand-delivery. Two Tribal entities provided comments, and they have been addressed in this final rule. No formal requests for government-to-government consultations were submitted in response to this rulemaking.

E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not a significant regulatory action under E.O. 13211 and would not significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action. No Statement of Energy Effects is required.

For the reasons described in the preamble, we hereby amend part 21 of subchapter B, chapter I, title 50 of the Code of Federal Regulations, as set forth below: