In FR Rule Doc. 2020-26875, appearing on page 80400 in the Federal Register of Friday, December 11, 2020, the following correction is made:

The Federal Civil Penalties Inflation Adjustment Act of 1990 (the “Inflation Adjustment Act”), 1 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the “2015 Act”), 2 requires Federal agencies, including the Commission, to adjust for inflation the civil monetary penalties within their jurisdiction according to prescribed formulas. A civil monetary penalty is “any penalty, fine, or other sanction” that (1) “is for a specific monetary amount” or “has a maximum amount” under Federal law; and (2) that a Federal agency assesses or enforces “pursuant to an administrative proceeding or a civil action” in Federal court. 3 Under the Federal Election Campaign Act, 52 U.S.C. 30101-45 (“FECA”), the Commission may seek and assess civil monetary penalties for violations of FECA, the Presidential Election Campaign Fund Act, 26 U.S.C. 9001-13, and the Presidential Primary Matching Payment Account Act, 26 U.S.C. 9031-42.

The Inflation Adjustment Act requires Federal agencies to adjust their civil penalties annually, and the adjustments must take effect no later than January 15 of every year. 4 Pursuant to guidance issued by the Office of Management and Budget, 5 the Commission is now adjusting its civil monetary penalties for 2021. 6

The Commission must adjust for inflation its civil monetary penalties “notwithstanding Section 553” of the Administrative Procedure Act (“APA”). 7 Thus, the APA's notice-and-comment and delayed effective date requirements in 5 U.S.C. 553(b)-(d) do not apply because Congress has specifically exempted agencies from these requirements. 8

Furthermore, because the inflation adjustments made through these final rules are required by Congress and involve no Commission discretion or policy judgments, these rules do not need to be submitted to the Speaker of the United States House of Representatives or the President of the United States Senate under the Congressional Review Act, 5 U.S.C. 801 et seq. Moreover, because the APA's notice-and-comment procedures do not apply to these final rules, the Commission is not required to conduct a regulatory flexibility analysis under 5 U.S.C. 603 or 604. See 5 U.S.C. 601(2), 604(a). Nor is the Commission required to submit these revisions for congressional review under FECA. See 5 U.S.C. 30111(d)(1), (4) (providing for congressional review when the Commission “prescribe[s]” a “rule of law”).

The new penalty amounts will apply to civil monetary penalties that are assessed after the date the increase takes effect, even if the associated violation predated the increase. 9

The Inflation Adjustment Act requires the Commission to annually adjust its civil monetary penalties for inflation by applying a cost-of-living-adjustment (“COLA”) ratio. 10 The COLA ratio is the percentage that the Consumer Price Index (“CPI”)  11 “for the month of October preceding the date of the adjustment” exceeds the CPI for October of the previous year. 12 To calculate the adjusted penalty, the Commission must increase the most recent civil monetary penalty amount by the COLA ratio. 13 According to the Office of Management and Budget, the COLA ratio for 2021 is 0.01182, or 1.182%; thus, to calculate the new penalties, the Commission must multiply the most recent civil monetary penalties in force by 1.01182. 14

The Commission assesses two types of civil monetary penalties that must be adjusted for inflation. First are penalties that are either negotiated by the Commission or imposed by a court for violations of FECA, the Presidential Election Campaign Fund Act, or the Presidential Primary Matching Payment Account Act. These civil monetary penalties are set forth at 11 CFR 111.24. Second are the civil monetary penalties assessed through the Commission's Administrative Fines Program for late filing or non-filing of certain reports required by FECA. See 52 U.S.C. 30109(a)(4)(C) (authorizing Administrative Fines Program), and 30104(a) (requiring political committee treasurers to report receipts and disbursements within certain time periods). The penalty schedules for these civil monetary penalties are set out at 11 CFR 111.43 and 111.44.

FECA establishes the civil monetary penalties for violations of FECA and the other statutes within the Commission's jurisdiction. See 52 U.S.C. 30109(a)(5), (6), (12). Commission regulations in 11 CFR 111.24 provide the current inflation-adjusted amount for each such civil monetary penalty. To calculate the adjusted civil monetary penalty, the Commission multiplies the most recent penalty amount by the COLA ratio and rounds that figure to the nearest dollar.

The actual adjustment to each civil monetary penalty is shown in the chart below.

FECA authorizes the Commission to assess civil monetary penalties for violations of the reporting requirements of 52 U.S.C. 30104(a) according to the penalty schedules “established and published by the Commission.” 52 U.S.C. 30109(a)(4)(C)(i). The Commission has established two penalty schedules: The penalty schedule in 11 CFR 111.43(a) applies to reports that are not election sensitive, and the penalty schedule in 11 CFR 111.43(b) applies to reports that are election sensitive. 15 Each penalty schedule contains two columns of penalties, one for late-filed reports and one for non-filed reports, with penalties based on the level of financial activity in the report and, if late-filed, its lateness. 16 In addition, 11 CFR 111.43(c) establishes a civil monetary penalty for situations in which a committee fails to file a report and the Commission cannot calculate the relevant level of activity. Finally, 11 CFR 111.44 establishes a civil monetary penalty for failure to file timely reports of contributions received less than 20 days, but more than 48 hours, before an election. See 52 U.S.C. 30104(a)(6).

To determine the adjusted civil monetary penalty amount for each level of activity, the Commission multiplies the most recent penalty amount by the COLA ratio and rounds that figure to the nearest dollar. The new civil monetary penalties are shown in the schedules in the rule text, below.

For the reasons set out in the preamble, the Federal Election Commission amends subchapter A of chapter I of title 11 of the Code of Federal Regulations as follows:

I. Policy Objectives

The Debt Collection Improvement Act of 1996 (DCIA) requires Federal agencies to collect debts owed to the United States in accordance with regulations that either adopt, or at least are consistent with, standards prescribed by the Department of Justice (DOJ) and Department of the Treasury (Treasury). 1 Treasury has issued regulations applicable to collection under the DCIA, and these regulations, known as the Federal Claims Collection Standards (FCCS), became effective on December 22, 2000. The purpose of the DCIA is to enhance the efficiency and effectiveness of the Federal Government's efforts to collect debt owed to the United States. A principal feature of the DCIA was the creation of the Treasury Offset Program (TOP), a Government-wide database of delinquent debtors that offsets (reduces) Federal payments to recipients who also owe delinquent debt to the United States and that remits the offset amount to the creditor agency.

The FDIC is amending its regulations, in accordance with the DCIA, to add the collection of civil money penalty (CMP) debt to the FDIC's existing debt-collection regulations found in 12 CFR part 313. Part 313 does not currently provide for collection of CMP debt. The amendments would allow the FDIC to refer debts arising from its enforcement-related activities to Treasury for collection, thereby improving the effectiveness of the FDIC's debt-collection efforts.

In 2002, the FDIC, in compliance with the DCIA, promulgated 12 CFR part 313 governing the collection of certain debts owed to the FDIC in its corporate capacity by Federal employees, including FDIC employees, and certain third parties. 2 The FDIC amended part 313 in 2006 to include criminal restitution debt. 3 Part 313, in its present form, applies only to debts owed to and payments made by the FDIC acting in its corporate capacity, and criminal restitution debt owed to the FDIC in either its corporate capacity or its receivership capacity. 4

The DCIA authorizes the FDIC to collect delinquent CMP debts that arise from its supervision and enforcement functions, 5 but the current part 313 does not apply—aside from criminal restitution debt noted above—to “debts owed to or payments made by the FDIC in connection with the FDIC's liquidation, supervision, enforcement, or insurance responsibilities.”  6

The rule amends FDIC regulations to provide for the collection of CMP debt. It will do so by adopting existing Treasury regulations concerning debt-collection procedures as to the collection of CMP debt. It will improve the effectiveness of the FDIC's debt-collection efforts, primarily by allowing the FDIC to refer debts arising from its enforcement-related activities to Treasury for collection. The rule will not affect the FDIC's existing authority under part 313 to collect other forms of debt, including debt owed to the FDIC in its corporate capacity or for the collection of criminal restitution debt.

The legal authority for the amendments is found, in part, in the DCIA itself. The DCIA's definition of “debt” includes “any amount of funds or property that has been determined by an appropriate official of the Federal Government to be owed to the United States by a person, organization or entity other than another Federal agency.”  7 The FDIC is amending part 313 in accordance with the FDIC's authority under 12 U.S.C. 1819(a) to prescribe rules and regulations governing its operations.

Accordingly, the FDIC is amending part 313 as follows:

Section 313.1 (Scope) is revised to include CMP debt in part 313. This section also notes that subparts B through G of part 313 do not apply to the collection of CMP debt.

Section 313.3 (Definitions) is amended to include CMP debtors among the list of debtors, under paragraph (u), to whom a creditor agency (the FDIC) may send a written notice that, among other statements, claims a debt and informs the debtor that the creditor agency intends to collect the debt by administrative offset. The rule makes a technical revision to paragraph (d) to substitute “the Bureau of the Fiscal Service” as the successor Treasury entity to “FMS” (Treasury's former Financial Management Service) and to note that the FDIC has the statutory authority, under 12 U.S.C. 1818(i)(2)(F), to compromise, modify, or remit any CMP that the FDIC may assess or has already assessed under 12 U.S.C. 1818(i)(2)(A)-(C). Section 313.3 is also revised at paragraphs (j), (m), (n), and (q) to include three divisions of the FDIC, as well as the directors of those divisions (or their designees), since the enforcement and supervisory activities of those divisions may result in the assessment of CMPs.

Section 313.4 (Delegations of authority) contains technical amendments to clarify the following delegations: (1) Authority to collect debt, other than criminal restitution debt and CMP debt, on behalf of the FDIC in its corporate capacity is delegated to the Director of the Division of Administration or Director of the Division of Finance, as applicable, or to the applicable Director's designee; and (2) authority to collect criminal restitution debt on behalf of the FDIC in either its receivership or corporate capacity is delegated to the Director of the Division of Resolutions and Receiverships, or to her or his designee.

The rule creates a new part 313, subpart H, which concerns the collection of CMP debt. Section 313.181 (Scope) states that subpart H establishes FDIC procedures for the collection of CMP debt. Section 313.182 (Purpose) notes that the purpose of subpart H is to implement Federal statutes and regulatory standards authorizing the FDIC to collect delinquent CMPs. Section 313.183 (Definitions) indicates that the definitions provided at section 313.3 apply to subpart H to the extent they are applicable.

Section 313.184 outlines how the FDIC will collect CMP debt. Paragraph (a) states that the FDIC will follow Treasury regulations set forth at 31 CFR part 285, as applicable and consistent with subpart H, for the collection of CMP debt, including centralized offset of Federal payments to collect non-tax debts that may be owed to the FDIC. Paragraph (b) notes that nothing in subpart H shall be construed to require the FDIC to provide duplicate notice or other procedural protections that have already been provided or afforded to a CMP debtor in the course of administrative or judicial litigation or otherwise. Paragraph (c) says that, for CMP debtors, and for purposes of 31 U.S.C. 3716(b)(1), the FDIC adopts without change the regulations on collection by administrative offset set forth at 31 CFR 901.3 and other relevant sections of the FCCS applicable to such offset, to the extent those regulations are consistent with subpart H. Finally, paragraph (d) states that nothing in subpart H precludes the collection of debts through any other available means or precludes the FDIC from engaging in litigation or the compromise of debt as provided under 12 U.S.C. 1818(i) or any other applicable law or regulation.

The FDIC is amending part 313 in accordance with the FDIC's authority under 12 U.S.C. 1819(a) to prescribe rules and regulations governing its operations. The rule would not directly affect any FDIC-supervised institutions. The rule could indirectly affect FDIC-insured instructions and individuals who are delinquent with respect to CMPs that have been assessed against them by the FDIC. According to the FDIC's information, the sum of delinquent CMPs owed to the FDIC amounts to approximately $1 million. The delinquent CMP funds represent a preexisting obligation owed by the individuals or institutions; therefore, the rule will have no effect on these obligations. However, the rule, as amended, could increase the portion of these obligations that is ultimately collected under part 313.

As discussed previously, part 313 does not currently apply to the collection of delinquent CMPs. The FDIC believes that it can increase the effectiveness of its delinquent CMP collection efforts through the use of administrative offset. The DCIA states that agencies, before collecting a claim by administrative offset, must either adopt the FCCS without change or prescribe agency regulations for collecting debts by administrative offset that are consistent with the FCCS. The FDIC has considered these two approaches and has decided to adopt the FCCS without change for the collection of delinquent CMPs.

The FDIC is issuing this final rule without prior notice and the opportunity for public comment ordinarily prescribed by the Administrative Procedure Act (APA). 8 Pursuant to section 553(b)(A) of the APA, general notice and the opportunity for public comment are not required with respect to a rule of “agency organization, procedure, or practice.”  9

As discussed above, this final rule amends the FDIC regulations to provide for the collection of CMP debt. It will do so by adopting existing Treasury regulations concerning debt-collection procedures as to the collection of CMP debt. These amendments relate solely to agency procedure and practice. For this reason, the FDIC finds that general notice and opportunity for public comment are not required under the APA.

The Regulatory Flexibility Act (RFA)  10 requires an agency to consider whether the rules it proposes will have a significant economic impact on a substantial number of small entities. 11 The RFA applies only to rules for which an agency publishes a general notice of proposed rulemaking pursuant to 5 U.S.C. 553(b). As discussed previously, consistent with section 553(b)(A) of the APA, the FDIC has determined that general notice and opportunity for public comment is not required as the final rule is a rule of agency procedure and practice. Accordingly, the FDIC has concluded that the RFA's requirements relating to initial and final regulatory flexibility analysis do not apply.

In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA), 12 the FDIC may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently-valid Office of Management and Budget (OMB) control number. The final rule does not create new or modify existing information collection requirements. Accordingly, no submission to OMB will be made with respect to the final rule.

Pursuant to section 302(a) of the Riegle Community Development and Regulatory Improvement Act (RCDRIA), 13 in determining the effective date and administrative compliance requirements for new regulations that impose additional reporting, disclosure, or other requirements on insured depository institutions (IDIs), each Federal banking agency must consider, consistent with principles of safety and soundness and the public interest, any administrative burdens that such regulations would place on depository institutions, including small depository institutions, and customers of depository institutions, as well as the benefits of such regulations. In addition, section 302(b) of RCDRIA requires new regulations and amendments to regulations that impose additional reporting, disclosures, or other new requirements on IDIs generally to take effect on the first day of a calendar quarter that begins on or after the date on which the regulations are published in final form. 14 Because the final rule does not impose any reporting, disclosure, or other new requirements on insured depository institutions, the requirements of RCDRIA do not apply.

For purposes of the Congressional Review Act (CRA), OMB makes a determination as to whether a final rule constitutes a “major” rule. 15 If a rule is deemed a “major rule” by the OMB, the CRA generally provides that the rule may not take effect until at least 60 days following its publication.

The CRA defines a “major rule” as any rule that the Administrator of the Office of Information and Regulatory Affairs of the OMB finds has resulted in or is likely to result in (1) an annual effect on the economy of $100,000,000 or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions, or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. 16

The OMB has determined that this final rule is not a major rule for purposes of the CRA. As required by the CRA, the FDIC will submit the final rule and other appropriate reports to Congress and the Government Accountability Office for review.

Section 722 of the Gramm-Leach-Bliley Act  17 requires each Federal banking agency to use plain language in all of its proposed and final rules published after January 1, 2000. The FDIC has sought to present the final rule in a simple and straightforward manner.

For the reasons stated in the preamble and under the authority of 12 U.S.C. 1819 (Seventh and Tenth), the FDIC amends 12 CFR part 313 as follows:

Authority for This Rulemaking

This rule implements the Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA), Public Law 101-410, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), Public Law 114-74, 129 Stat. 599, codified at 28 U.S.C. 2461 note. The FCPIAA and the 2015 Act require Federal agencies to adjust minimum and maximum civil penalty amounts for inflation to preserve their deterrent impact. The 2015 Act amended the formula and frequency of inflation adjustments. It required an initial catch-up adjustment in the form of an interim final rule, followed by annual adjustments of civil penalty amounts using a statutorily mandated formula. Section 4(b)(2) of the 2015 Act specifically directs that the annual adjustment be accomplished through final rule without notice and comment. This rule is effective immediately.

This rule also implements the authority to assess civil penalties for violations concerning the Drug and Alcohol Clearinghouse, set forth in section 34202 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), Public Law 112-141, 126 Stat. 405, codified at 49 U.S.C. 31306a(k)(1).

The Department's authorities over the specific civil penalty regulations being amended by this rule are provided in the preamble discussion below.

On November 2, 2015, the President signed into law the 2015 Act, which amended the FCPIAA, to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. The 2015 Act requires Federal agencies to: (1) Adjust the level of civil monetary penalties with an initial “catch-up” adjustment through an interim final rule (IFR); and (2) make subsequent annual adjustments for inflation.

The 2015 Act directed the Office of Management and Budget (OMB) to issue guidance on implementing the required annual inflation adjustment no later than December 15 of each year. 1 On December 16, 2019, OMB released this required guidance, in OMB Memorandum M-20-05, which provides instructions on how to calculate the 2020 annual adjustment. To derive the 2020 adjustment, the Department must multiply the maximum or minimum penalty amount by the percent change between the October 2019 Consumer Price Index for All Urban Consumers (CPI-U) and the October 2018 CPI-U. In this case, as explained in OMB Memorandum M-20-05, the percent change between the October 2019 CPI-U and the October 2018 CPI-U is 1.01764.

This final rule is being published without notice and comment and with an immediate effective date.

The 2015 Act provides clear direction for how to adjust the civil penalties, and clearly states at section 4(b)(2) that this adjustment shall be made “notwithstanding section 553 of title 5, United States Code.” By operation of the 2015 Act, DOT must publish an annual adjustment by January 15 of every year, and the new levels take effect upon publication of the rule. In addition, as noted above, MAP-21 provides explicit authority to assess civil penalties for violations of 49 U.S.C. 31306a. Accordingly, DOT is publishing this final rule without prior notice and comment, and with an immediate effective date.

In 2016, OST and DOT's operating administrations with civil monetary penalties promulgated the “catch up” IFR required by the 2015 Act. All DOT operating administrations have already finalized their “catch up” IFRs and this rule makes the annual inflation adjustment required by the 2015 Act.

The Department emphasizes that this rule adjusts penalties prospectively, and therefore the penalty adjustments made by this rule will apply only to violations that take place after this rule becomes effective. This rule also does not change previously assessed or enforced penalties that DOT is actively collecting or has collected.

OST's 2020 civil penalty adjustments are summarized in the chart below.

FAA recently discovered that it had not adjusted the maximum civil penalty for certain laser pointer violations. 2 Consistent with the intent of the law and to ensure uniform year-over-year application of the 2015 Act, the 2020 update is being calculated as if the missed 2018 and 2019 updates had occurred. No violations will be assessed at the 2018 or 2019 amounts. They are included in the chart below to show the FAA's calculations clearly.

On October 5, 2018, Congress enacted a statutory penalty for operating an unmanned aircraft or unmanned aircraft system equipped or armed with a dangerous weapon. 4 It was not adjusted in 2019 because, per OMB guidance, new civil monetary penalties are not adjusted for inflation the first year they are in effect. 5 This year is thus its first adjustment.

Background

The Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410; 28 U.S.C. 2461), as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134), provided for agencies' adjustments for inflation to CMPs to ensure that CMPs continue to maintain their deterrent value and that CMPs due to the Federal Government were properly accounted for and collected.

A CMP is defined as any penalty, fine, or other sanction that:

1. Is for a specific monetary amount as provided by Federal law, or has a maximum amount provided for by Federal law; and,

2. Is assessed or enforced by an agency pursuant to Federal law; and,

3. Is assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.

On November 2, 2015, the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Section 701 of Pub. L. 114-74) further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 to improve the effectiveness of CMPs and to maintain their deterrent effect. This amendment (1) required agencies to adjust the CMP levels in effect as of November 2, 2015, with initial catch up adjustments for inflation through a final rulemaking to take effect no later than August 1, 2016; and (2) requires agencies to make subsequent annual adjustments for inflation to CMPs that shall take effect not later than January 15. The Department of Commerce's 2020 adjustments for inflation to CMPs were published in the Federal Register on January 3, 2020, and the new CMP levels became effective January 15, 2020.

The Department of Commerce's 2021 adjustments for inflation to CMPs apply only to CMPs with a dollar amount, and will not apply to CMPs written as functions of violations. These 2021 adjustments for inflation apply only to those CMPs, including those whose associated violation predated such adjustment, which are assessed by the Department of Commerce after the effective date of the new CMP level.

This regulation adjusts for inflation CMPs that are provided by law within the jurisdiction of the Department of Commerce. The actual CMP assessed for a particular violation is dependent upon a variety of factors. For example, the National Oceanic and Atmospheric Administration's (NOAA) Policy for the Assessment of Civil Administrative Penalties and Permit Sanctions (Penalty Policy), a compilation of NOAA internal guidelines that are used when assessing CMPs for violations for most of the statutes NOAA enforces, will be interpreted in a manner consistent with this regulation to maintain the deterrent effect of the CMPs. The CMP ranges in the Penalty Policy are intended to aid enforcement attorneys in determining the appropriate CMP to assess for a particular violation. The Penalty Policy is maintained and made available to the public on NOAA's Office of the General Counsel, Enforcement Section website at: http://www.gc.noaa.gov/enforce-office.html.

The Department of Commerce's 2021 adjustments for inflation to CMPs set forth in this regulation were determined pursuant to the methodology prescribed by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which requires the maximum CMP, or the minimum and maximum CMP, as applicable, to be increased by the cost-of-living adjustment. The term “cost-of-living adjustment” is defined by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. For the 2021 adjustments for inflation to CMPs, the cost-of-living adjustment is the percentage for each CMP by which the Consumer Price Index for the month of October 2020 exceeds the Consumer Price Index for the month of October 2019.

Pursuant to 5 U.S.C. 553(b)(3)(B), there is good cause to issue this rule without prior public notice or opportunity for public comment because it would be impracticable and unnecessary. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Section 701(b)) requires agencies to make annual adjustments for inflation to CMPs notwithstanding section 553 of title 5, United States Code. Additionally, the methodology used for adjusting CMPs for inflation is given by statute, with no discretion provided to agencies regarding the substance of the adjustments for inflation to CMPs. The Department of Commerce is charged only with performing ministerial computations to determine the dollar amounts of adjustments for inflation to CMPs. Accordingly, prior public notice and an opportunity for public comment are not required for this rule. For the same reasons, there is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date.

The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this rule because there are no new or revised recordkeeping or reporting requirements.

This rule is not a significant regulatory action as that term is defined in Executive Order 12866.

Because notice of proposed rulemaking and opportunity for comment are not required pursuant to 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601, et seq. ) are inapplicable. Therefore, a regulatory flexibility analysis is not required and has not been prepared.

The Unverified List (UVL), found in Supplement No. 6 to part 744 of the Export Administration Regulations (15 CFR parts 730 through 774) (EAR), contains the names and addresses of foreign persons who are or have been parties to a transaction, as such parties are described in § 748.5 of the EAR, involving the export, reexport, or transfer (in-country) of items subject to the EAR, and whose bona fides the Bureau of Industry and Security (BIS) has been unable to verify through an end-use check. BIS may add persons to the UVL when BIS or federal officials acting on BIS's behalf have been unable to verify a foreign person's bona fides because an end-use check, such as a pre-license check (PLC) or a post-shipment verification (PSV), cannot be completed satisfactorily for reasons outside the U.S. Government's control.

There are a number of reasons why end-use checks cannot be completed. These include but are not limited to reasons unrelated to the cooperation of the foreign party subject to the end-use check. For example, BIS sometimes initiates end-use checks and cannot find a foreign party at the address indicated on export documents and cannot locate the party by telephone or email. Additionally, BIS sometimes is unable to conduct end-use checks when host government agencies do not respond to requests to conduct end-use checks, prevent the scheduling of such checks, or refuse to schedule them in a timely manner. Under these circumstances, although BIS has an interest in informing the public of its inability to verify the foreign party's bona fides, there may not be sufficient information to add the foreign person at issue to the Entity List (Supplement No. 4 to part 744 of the EAR) under § 744.11 of the EAR (see paragraph (b), Criteria for revising the Entity List), or under another provision of the EAR. In such circumstances, BIS may add the foreign person to the UVL.

Furthermore, BIS sometimes is able to conduct end-use checks but cannot verify the bona fides of a foreign party. For example, BIS may be unable to verify bona fides if, during the conduct of an end-use check, a recipient of items subject to the EAR is unable to produce the items that are the subject of the end-use check for visual inspection or provide sufficient documentation or other evidence to confirm the disposition of the items. The inability of foreign persons subject to end-use checks to demonstrate their bona fides raises concerns about the suitability of such persons as participants in future exports, reexports, or transfers (in-country) of items subject to the EAR and indicates a risk that such items may be diverted to prohibited end uses and/or end users. However, in such circumstances, BIS may not have sufficient information to establish that such persons are involved in activities described in parts 744 or 746 of the EAR, therefore preventing the placement of the persons on the Entity List. In such circumstances, the foreign persons may be added to the UVL.

As provided in § 740.2(a)(17) of the EAR, the use of license exceptions for exports, reexports, and transfers (in-country) involving a party or parties to the transaction who are listed on the UVL is suspended. Additionally, under § 744.15(b) of the EAR, there is a requirement for exporters, reexporters, and transferors to obtain (and keep a record of) a UVL statement from a party or parties to the transaction who are listed on the UVL before proceeding with exports, reexports, and transfers (in-country) to such persons, when the exports, reexports and transfers (in-country) are not subject to a license requirement.

Requests for removal of a UVL entry must be made in accordance with § 744.15(d) of the EAR. Decisions regarding the removal or modification of UVL listings will be made by the Deputy Assistant Secretary for Export Enforcement, based on a demonstration by the listed person of its bona fides.

This rule removes three persons from the UVL. BIS is removing these persons pursuant to § 744.15(c)(2) of the EAR based on the successful completion of end-use checks that resulted in the verification of their bona fides. This final rule implements the decision of the Acting Deputy Assistant Secretary for Export Enforcement to remove the following three persons located in Germany and Mexico from the UVL:

Germany:

Mexico:

• Integrated Production and Test Engineering, a.k.a. IPTE, Calle Alambiques 975—9, Parque Industrial el Álamo, Guadalajara, Jalisco 44490, Mexico

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA) (codified, as amended, at 50 U.S.C. 4801 through 4852). ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated as “not significant” for purposes of Executive Order 12866. This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.

This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

Pursuant to section 1762 of the Export Control Reform Act of 2018 (50 U.S.C. 4821) this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date. The analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable because no general notice of proposed rulemaking was required for this action. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by OMB under the following control numbers: 0694-0088 (Simplified Network Application Processing+ System (SNAP+) and the Multipurpose Export License Application), 0694-0122 (Licensing Responsibilities and Enforcement), and 0694-0137 (License Exceptions and Exclusions). Collection 0694-0088 includes, among other things, license applications, and carries a burden estimate of 42.5 minutes for a manual or electronic submission for a total burden estimate of 31,878 hours.

This rule will not change public burden in a collection of information approved by OMB under control number 0694-0088. The restoration of license exceptions for listed persons on the Unverified List will result in decreased license applications being submitted to BIS by exporters. The removal of license exceptions for listed persons on the Unverified List will potentially result in increased license applications being submitted to BIS by exporters. Total burden hours associated with the Paperwork Reduction Act and OMB control number 0694-0088 are expected not to change, as the restoration of some license exceptions and the restriction of other license exceptions will only affect transactions involving persons removed from or added to the Unverified List and not all export transactions. Because license exception eligibility is restored for these entities removed from the UVL, this rule increases public burden in a collection of information approved by OMB under control number 0694-0137 minimally, as this will only affect specifically listed individual persons. The decreased burden under 0694-0088 is reciprocal to the increased burden under 0694-0137, and results in little or no change of burden to the public. This rule also decreases public burden in a collection of information under OMB control number 0694-0122, as a result of the exchange of UVL statements between private parties. The total change in burden hours associated with both of these collections is expected to be minimal, as it involves a limited number of persons listed on the UVL.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730 through 774) is amended as follows:

This preamble is divided into four sections: Section I explains the process of issuing a proposed rule concurrently with a companion direct final rule; Section II provides general background information on the development of the rulemaking; Section III is a section-by-section summary and discussion of the regulatory text; and Section IV covers the administrative requirements for this rulemaking.

An agency typically uses direct final rulemaking when it anticipates the rule will be non-controversial. The Department has determined that this rule is suitable for direct final rulemaking. The revisions to the Board's procedural regulations would require represented parties, unless exempted by the Board for good cause shown, to file documents via the Board's new electronic case management system, which will also automatically serve these documents on registered system users. Some parties are already e-filing documents with the Board on a voluntary basis. Moreover, this new system is similar to those used by courts and other administrative agencies and will thus be familiar to the representatives. The rule also gives self-represented (pro se) parties the option to file and serve documents through the electronic case management system or via conventional methods. It also allows the Board to hear oral argument by videoconference under the same discretionary criteria outlined in its 2008 proposal. These changes to the Board's procedures and practices should not be controversial and are consistent with its statements in its 2008 proposal. 73 FR 35103 (“[T]he Board has anticipated that technological advances may, in the future, allow the filing, notice, service and presentation of documents and argument by electronic means.”). The Department has determined that this rule is exempt from the notice and comment requirements under 5 U.S.C. 553(b) as a rule of agency practice and procedure. Nonetheless, the agency has decided to allow for public input by issuing a direct final rule and concurrent notice of proposed rulemaking.

The Department is publishing concurrently with this direct final rule an identical notice of proposed rulemaking elsewhere in this issue of the Federal Register . The companion proposed rule provides the procedural framework to finalize the rule in the event that any significant adverse comment is received. The comment period for this direct final rule runs concurrently with the comment period for the proposed rule. Any comments received in response to this direct final rule will also be considered as comments regarding the companion proposed rule. For purposes of this rulemaking, a significant adverse comment is one that explains (1) why the rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the direct final rule will be ineffective or unacceptable without a change. In determining whether a significant adverse comment necessitates withdrawal of this direct final rule, the Department will consider whether the comment raises an issue serious enough to warrant a substantive response had it been submitted in a standard notice-and-comment process. A comment recommending an addition to the rule will not be considered significant and adverse unless the comment explains how this direct final rule would be ineffective without the addition.

If the Department receives any significant adverse comments during the comment period, the Department will withdraw the direct final rule and proceed in developing a final rule using the usual notice-and-comment procedure. If the Department receives no significant adverse comments, the Department will publish a document withdrawing the proposed rule. The Department requests comments on all issues related to this rule, including economic or other regulatory impacts of this rule on the regulated community. All interested parties should comment at this time because the Department will not initiate an additional comment period on the proposed rule even if it withdraws the direct final rule.

This rule is not an E.O. 13771 regulatory action because this rule has been determined by the Office of Information and Regulatory Affairs as not significant under E.O. 12866.

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(3).

The Board is promulgating a rule that would make e-filing mandatory and e-service automatic for parties represented by attorneys and lay representatives. The Board's long-term goal is to have entirely electronic case files (e-case files), which would significantly benefit both the Board and the participants in Board appeals. All parties and representatives, as well as appropriate Board employees, would have access to all of the Board's case-related documents through the Board's case management system at any time and place, as long as they have access to the internet. In addition, digitally filed and served documents would allow the Board to leverage its case management system to more efficiently process incoming documents and reduce the time it takes to adjudicate appeals.

The Board's case management system is a consolidated web-based case tracking system that was deployed in FY2011 to replace individual legacy applications and streamline business processes specific to each of the Department's three Adjudicatory Boards: The Administrative Review Board (created in 1996) is the adjudicatory Board that issues final agency decisions for the Secretary of Labor in cases arising under a variety of worker protection laws; the Benefits Review Board (created in 1972) reviews appeals of administrative law judges' decisions arising primarily under the Black Lung Benefits Act, the Longshore and Harbor Workers' Compensation Act and its extensions; and the Employees' Compensation Appeals Board (ECAB) (created in 1946) hears appeals taken from determinations and awards under the Federal Employees' Compensation Act by the Department's Office of Workers' Compensation Programs (OWCP) (whose predecessor agency was the Bureau of Federal Employees' Compensation as described in 20 CFR 1.6) with respect to claims of Federal employees injured in performance of duty.

The case management system has provided a broad range of capabilities to the staff of the Boards for inputting, processing, tracking, managing, and reporting specific details on thousands of cases since the initial implementation. In FY2013, the system was enhanced to provide access to the general public. Specifically, users have the ability to check their case status, electronically file motions and briefs, and receive Board issuances electronically. Currently, over 1,400 individuals are registered users of the system.

At present, there are two methods for placing the parties' pleadings into an electronic format for inclusion on the Board's case management system: Pleadings can be filed in an electronic format; or pleadings can be digitally imaged after they have been filed in paper form. If e-filing and e-service remains optional, it is unlikely that the Board will achieve the goal of completely electronic case files. If, however, all pleadings submitted by attorneys and lay representatives are e-filed, imaging the remaining paper pleadings from self-represented parties (pro se parties) would be more manageable and allow greater efficiencies in the processing of appeals. In addition, utilization of e-filing and e-service will reduce case processing times by eliminating, in most cases, the timeframes required to allow for the delivery of traditional mailings. These time savings will allow the Board to more efficiently process appeals without any sacrifice of the quality of work and will reduce mailing costs for the Board and private parties.

Although the law requires Federal agencies to provide information and services via the internet, it also mandates that agencies consider the impact on persons without access to the internet and, to the extent practicable, ensure that the availability of government services has not been diminished for such persons. 44 U.S.C. 3501. Accordingly, the Board will make e-filing and e-service optional for self-represented parties. There is no known legal restriction to a requirement that attorneys and lay representatives use e-filing and make e-service automatic, nor are there undue costs or difficulties imposed, particularly because a party may obtain an exemption for good cause shown. The Board notes that in this regard, e-filing is generally mandatory for attorneys in the Federal court system. See 76 FR 56107 (Sept. 12, 2011) (Social Security Administration final rule announcing that it will require claimant representatives to use SSA's electronic services as they become available on matters for which the representatives request direct fee payment); 76 FR 63537 (Oct. 13, 2011) (U.S. Merit Systems Protection Board pilot program requiring agencies and attorneys representing appellants to file pleadings electronically for appeals in the Washington Regional Office and Denver Field Office); 84 FR 14554 (Apr. 10, 2019) (Occupational Safety and Health Review Commission final rule adopting mandatory electronic filing and service); 84 FR 37081 (July 31, 2019) (U.S. Patent and Trademark Office final rule amending its Rules of Practice in Trademark Cases and Rules of Practice in Filings to mandate electronic filing of trademark applications and submissions associated with trademark applications and registrations). Individuals who are e-filing appeals to the Board need access to a computer with internet connectivity and an email account.

Current § 501.3(a) defines who may “file for review” from a final decision of the Director. Revised § 501.3(a) changes the phrase “file for review” to “file an appeal” to reflect the terminology contained in this section.

Current § 501.3(b) defines the “place of filing” as with the Clerk of the Appellate Boards at a specific mailing address. Revised § 501.3(b) defines “how to file” appeals and all post-appeal pleadings and motions, requiring e-filing by attorneys and lay representatives beginning 45 days after the effective date of the rule and allowing for e-filing by self-represented appellants. This requirement applies only to those documents filed 45 days after the effective date or later. This time period between the effective date, when litigants can be certain that the direct final rule will not be withdrawn, and the applicability date, on which e-filing becomes mandatory, allows those who were previously filing and serving documents by mail to adjust to electronic filing.

Current § 501.3(c)(2) contains requirements for the content of an appeal to the Board regarding the name and contact information for an appellant or a deceased employee who is the subject of an appeal. In addition it requires a signed authorization identifying the name and contact information of his or her representative, if applicable. Revised § 501.3(c)(2) requires the identifying contact information to include an email address.

Current § 501.3(c)(6) requires an appellant to sign the notice of appeal. Revised § 501.3(c)(6) allows for the use of an electronic signature when an appeal is electronically filed by a registered user.

Current § 501.3(f) sets forth how the date of filing an appeal is determined by the Board for purposes of timeliness of an appeal. Revised § 501.3(f) changes the word “Clerk” to “Clerk of the Appellate Boards” to reflect the terminology contained in this section.

Current § 501.3(f)(1) sets forth how timeliness of an appeal is determined and provides that a notice of appeal is deemed to be “received when received by the Clerk.” Revised § 501.3(f)(1) includes a provision for the timeliness of an appeal when e-filed. It also contains technical amendments to change the terminology “United States Mail” to “United States Postal Service”; “Clerk” to “Clerk of the Appellate Boards”; and “received when received” to “filed when received.” Paragraph (f)(2) is renumbered to (f)(3), and new paragraph (f)(2) clarifies that e-filed documents are deemed filed as of the date and time the Board's electronic case management system records its receipt and must be filed by 11:59:59 p.m. Eastern Time on the due date.

Current § 501.3(h) describes when a notice of appeal will be considered incomplete. Revised § 501.3(h) changes the terminology from “Clerk” to “Clerk of the Appellate Boards.”

Section 501.4 Case record; inspection; submission of pleadings and motions.

Current § 501.4(e) requires all filings with the Board to include an original and two copies. This rule removes that paragraph because paper copies are not necessary when e-filing, and the Board no longer needs multiple paper copies from self-represented parties or those who are granted an exemption from e-filing.

Current § 501.5 provides that oral argument is held only in Washington, DC. The revised section allows the Board, in its discretion, to hold oral argument by videoconference. It also provides that the notice to the parties will specify whether the oral argument is to be held in person or by videoconference. This provides the Board with greater flexibility and efficiency. Oral arguments (including those conducted by videoconference) will not be recorded because ECAB decisions are not subject to further review by OWCP or the courts.

Because no notice of proposed rulemaking is required for this rule under section 553(b) of the Administrative Procedure Act, the regulatory flexibility requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, do not apply to this rule. See 5 U.S.C. 601(2).

The Department has determined that this rule is not subject to the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. (PRA), as this rulemaking involves administrative actions to which the Federal government is a party or that occur after an administrative case file has been opened regarding a particular individual. See 5 CFR 1320.4(a)(2), (c).

The Department has reviewed this rule in accordance with the requirements of Executive Order 13132 and the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq., and has found no potential or 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. As there is no Federal mandate contained herein that could result in increased expenditures by State, local, and tribal governments, or by the private sector, the Department has not prepared a budgetary impact statement.

The Department has reviewed this rule in accordance with Executive Order 13175 and has determined that it does not have “tribal implications.” The rule does not “have substantial direct effects 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.”

The Department has reviewed this rule and has determined that the provisions of Executive Order 13211 are not applicable as this is not a significant regulatory action and there are no direct or implied effects on energy supply, distribution, or use.

For the reasons set forth in the preamble, the Department of Labor amends 20 CFR part 501, as follows:

This preamble is divided into four sections: Section I describes the process of rulemaking using a direct final rule with a companion proposed rule; Section II provides general background information on the development of the rulemaking; Section III is a discussion of the changes to the regulatory text; and Section IV covers the administrative requirements for this rulemaking.

The Department is simultaneously publishing with this direct final rule an identical proposed rule elsewhere in this issue of the Federal Register . In direct final rulemaking, an agency publishes a final rule with a statement that the rule will go into effect unless the agency receives significant adverse comment within a specified period. If the agency receives no significant adverse comment in response to the direct final rule, the rule goes into effect. If the agency receives significant adverse comment, the agency withdraws the direct final rule and treats such comment as submissions on the proposed rule. The proposed rule then provides the procedural framework to finalize the rule. An agency typically uses direct final rulemaking when it anticipates the rule will be non-controversial.

The Department has determined that this rule is suitable for direct final rulemaking. The enactment of the Board's procedural regulations and revisions to existing program regulations would require parties to use the Board's electronic system for filing and serving documents unless exempted by the Board, as well as make technical corrections to addresses, add cross-references to rules of practice and procedure, and specify where the Secretary has delegated authority under a program to the ARB. Some parties are already filing documents through the Board's existing electronic system on a voluntary basis. Moreover, this system is similar to those used by courts and other administrative agencies and will thus be familiar to some representatives. The rule would also give self-represented (pro se) parties the option to file and serve documents through the electronic system or via conventional methods. These changes to the Board's procedures and practices should not be controversial. The Department has determined that this rule is exempt from the notice and comment requirements under 5 U.S.C. 553(b) as a rule of agency practice and procedure. Nonetheless, the agency has decided to allow for public input by issuing a direct final rule and concurrent notice of proposed rulemaking.

The comment period for this direct final rule runs concurrently with the comment period for the proposed rule. Any comments received in response to this direct final rule will also be considered as comments regarding the proposed rule and vice versa. For purposes of this rulemaking, a significant adverse comment is one that explains (1) why the rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the direct final rule will be ineffective or unacceptable without a change. In determining whether a significant adverse comment necessitates withdrawal of the direct final rule, the Department will also consider whether the comment raises an issue serious enough to warrant a substantive response had it been submitted in a standard notice-and-comment process. A comment recommending an addition to the rule will not be considered significant and adverse unless the comment explains how the direct final rule would be ineffective without the addition.

The Department requests comments on all issues related to this rule, including economic or other regulatory impacts of this rule on the regulated community.

The Department is promulgating a rule that makes e-filing mandatory and acceptance of e-service automatic for represented parties before the Administrative Review Board represented by attorneys and non-attorney representatives. It does this by enacting its own rules of practice and procedure and amending existing program regulations. Currently, e-filing is optional and e-service is not available through the Board's existing electronic system: DOL Appeals. As a result, the Board receives filings in both paper and electronic form. The Board's long-term goal is to have entirely electronic case files (e-case files), which would significantly benefit both the Board and the participants in Board appeals by allowing the Board to more efficiently process incoming documents, reducing the time it takes to adjudicate claims. Requiring attorneys and non-attorney representatives to use e-filing and e-service will help the Board move toward this goal.

The Board currently uses DOL Appeals, a consolidated web-based case tracking system deployed in FY2011 to replace individual legacy applications and streamline business processes specific to each of the three Adjudicatory Boards in the Department: the Board, the Benefits Review Board (BRB), and the Employees' Compensation Appeals Board (ECAB). The Board has been delegated authority by the Secretary of Labor to issue decisions on appeal in cases arising under a variety of worker protection laws, including those governing environmental, transportation, and securities whistleblower protections; H-1B immigration provisions; child labor; employment discrimination; job training; seasonal and migrant workers; and Federal construction and service contracts. The BRB reviews appeals of administrative law judges' decisions arising under the Black Lung Benefits Act, the Longshore and Harbor Workers' Compensation Act and its extensions. ECAB hears appeals taken from determinations and awards under the Federal Employees' Compensation Act with respect to claims of Federal employees injured in the course of their employment.

The DOL Appeals case management system has provided a broad range of capabilities to the Boards' staff for inputting, processing, tracking, managing, and reporting specific details on thousands of cases since its initial implementation. In FY2013, the system was enhanced to provide access to the general public. Currently, over 1,400 individuals are registered users of the DOL Appeals system. Users have the ability to check their case status, electronically file motions and briefs, and receive Board issuances electronically. However, users who e-file documents must still serve those documents on other parties by some other method (typically mail, commercial delivery, or electronic mail), as DOL Appeals does not have an automatic e-service function like that of the Federal courts' electronic filing and service systems. Moreover, because e-filing is optional, the Board continues to receive many paper filings, including from attorneys and non-attorney representatives.

At present, the Board lacks sufficient resources to digitally image all pleadings received in paper form, and that option is unduly burdensome and labor intensive. Furthermore, if e-filing remains optional, it is unlikely that the Board will achieve the goal of completely electronic case files. If, however, parties are required to e-file all documents through the Department's electronic case management system, imaging the remaining paper pleadings from authorized parties would be more manageable for the Board. In addition, greater utilization of e-filing and e-service will reduce case processing times by eliminating the timeframes required to allow for the delivery of traditional mailings. These time savings will allow the Board to more efficiently process appeals without any sacrifice to quality of work and will also greatly reduce mailing and copying costs for both the Board and the parties.

Additionally, in an effort to improve e-filing and e-service Department-wide, the rule amends provisions regarding filing and service with the Office of Administrative Law Judges (OALJ) for consistency with proposed amendments to the OALJ rules of practice and procedure in 29 CFR part 18.

The Department is adding a new section to the Code of Federal Regulations at 29 CFR part 26 in order to establish rules of practice and procedure for the Board regarding filing and service and to address some general procedural matters.

This section is a new provision addressing the purpose of part 26 and the scope of the Board's authority. Paragraph (a) provides that part 26 contains the rules of practice of the Board and that these rules shall govern all appeals and proceedings before the Board, except where inconsistent with a governing statute, regulation, or executive order. Paragraph (b) provides that the Board has authority to act as the authorized representative of the Secretary of Labor in review or on appeal of decisions and recommendations, as provided in Secretary's Order 01-2020. The Board shall act as fully and finally as the Secretary of Labor concerning such matters, except as provided in Secretary's Order 01-2020 (or any successor to that order).

This section is a new provision containing procedural provisions. Paragraph (a) supplies definitions. Paragraph (a)(1) defines the ARB to mean the Administrative Review Board. Paragraph (a)(2) defines Electronic case management system to mean the Department of Labor's electronic filing and electronic service system for adjudications.

Paragraph (b) addresses computation of time. Paragraph (b)(1) provides that when computing a time period stated in days, the day of the event that triggers the period should be excluded; every day, including intermediate Saturdays, Sundays, and legal holidays, should be counted; and the last day of the period should be included, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the next day that is not a Saturday, Sunday, or legal holiday. Paragraph (b)(2) addresses when the “last day” ends. Paragraph (b)(2)(i) provides that for electronic filing via the Department's electronic case management system or via other electronic means, the “last day” goes until 11:59:59 p.m. Eastern Time on the due date. The Board chose this time zone because Washington, DC is located within it. Paragraph (b)(2)(ii) provides that for non-electronic filing, the “last day” ends at the time the office of the Clerk of the Appellate Boards is scheduled to close in Washington, DC on the due date. These rules are generally consistent with the Federal Rules of Civil Procedure, see Fed. R. Civ. P. 6(a), and the Federal Rules of Appellate Procedure, see Fed. R. App. P. 26(a)(4). This provides a default where the applicable statute, regulation, executive order, or judge's order is silent. Paragraph (c) provides the Board's mailing address.

This section is a new provision containing all filing requirements. Paragraph (a) governs e-filing through the Department's electronic case management system. Paragraph (a)(1) requires attorneys and lay representatives to file all petitions, pleadings, exhibits, and other documents with the Board via the Department's electronic case management system, and notes that paper copies are not required unless requested by the Board. As discussed above, mandating electronic filing and automatically serving documents electronically filed through the system will benefit the parties and improve case processing. This requirement applies only to those documents filed 45 days after the effective date or later. This time period between the effective date, when litigants can be certain that the direct final rule will not be withdrawn, and the applicability date, on which e-filing becomes mandatory, allows the Office of Administrative Law Judges to update its notices of appeal rights so that by the time e-filing is mandatory, parties will have received a notice of appeal rights with updated information. It also allows parties who were previously filing and serving documents by mail to adjust to electronic filing.

Although Federal agencies are required by law to provide information and services via the internet, agencies must also consider the impact on persons without access to the internet and, to the extent practicable, ensure that the availability of government services has not been diminished for such persons. See 44 U.S.C. 3501. Accordingly, the Department proposes to authorize non-electronic filing and service for good cause and will make e-filing and e-service optional for self-represented parties. The Board notes in this regard that e-filing is generally mandatory for attorneys in the Federal district courts and U.S. Courts of Appeals, unless an exemption for good cause is granted; only self-represented parties have the option of filing pleadings in paper form. Accordingly, paragraph (a)(2) provides that attorneys and lay representatives may request an exemption to e-filing for good cause shown. Such a request must include a detailed explanation why e-filing or acceptance of e-service should not be required.

Paragraph (a)(3) allows self-represented ( i.e., pro se ) parties to file in either electronic or non-electronic format. Providing this flexibility will allow these parties to easily participate in their cases.

Paragraph (a)(4) provides that documents filed via the Department's electronic case management system are filed when received, and are received as of the date and time recorded by the system. Paragraph (a)(5) allows for electronic signatures when a filing is made through a registered user's account and authorized by that person, along with the person's name. This is consistent with the Federal Rules of Civil Procedure, see Fed. R. Civ. P. 5(d)(3) and the Federal Rules of Appellate Procedure, see Fed. R. App. P. 25(2)(B)(iii). Many program regulations require filed documents to be signed, and this provision allows filers to comply while filing via the Department's electronic case management system.

Paragraph (a)(6) provides that a person who is adversely affected by a technical failure in connection with filing or receipt of an electronic document may seek appropriate relief from the Board. The Board encourages filers to retain documentation of the failure in these instances. Additionally, if technical malfunction or other issue prevents access to the Department's case management system for a protracted period, the Board by special order may provide appropriate relief pending restoration of electronic access.

Paragraph (b) addresses alternate methods of filing for persons who are excepted from e-filing or who have opted not to use e-filing and provides that documents filed using methods other than the Department's electronic case management system ( e.g., by email or mail) are considered filed when received by the Clerk of the Appellate Boards. This similar to the Federal Rules of Civil Procedure, see Fed. R. Civ. P. 5(d)(2), and provides a default for when laws governing a particular program do not specify the date of filing.

This section contains all service requirements. Paragraph (a) addresses electronic service. Paragraph (a)(1) provides that electronic service may be completed by email if consented to in writing by the party being served. Paragraph (a)(2) deems service completed by sending the document to a user registered with the Department's electronic case management system by filing via this system. This is consistent with the Federal Rules of Civil Procedure, see Fed. R. Civ. P. 5(b)(2)(E), and the Federal Rules of Appellate Procedure, see Fed. R. App. P. 25(c)(2), and provides a default for when laws governing a particular program do not specify the date of service. Paragraph (a)(2) further provides that registering to use the Department's electronic case management system constitutes consent to service through the system. The Board would also issue decisions and orders electronically to registered users who are parties to a case.

Paragraph (b) addresses non-electronic service and allows for service to be completed by personal delivery, mail, or delivery via commercial carrier.

Paragraph (c) provides the effective date of each form of service. Paragraph (c)(1) provides that service by personal delivery is effected on the date the document is delivered to the person being served. Paragraph (c)(2) provides that service by mail or commercial carrier is effected on the date the document is mailed or delivered to the commercial carrier. Paragraph (c)(3) provides that service by electronic means, including via the Department's electronic case management system and via email, is effective on sending. This is similar to the Federal Rules of Civil Procedure, see Fed. R. Civ. P. 5(b)(2), and provides a default for when laws governing a particular program do not specify the date of service.

The Department proposes to revise several parts of the Code of Federal Regulations: 20 CFR parts 641, 655, 658, 667, 683, and 726; 29 CFR parts 7, 8, 22, 24, 29, 37, 38, 96, 417, 458, 500, 525, 530, 580, 1978, 1979, 1980, 1981, 1982, 1983, 1984, 1985, 1986, 1987 and 1988; and 41 CFR part 60-30 to harmonize the filing provisions with 29 CFR part 26 and improve e-filing and e-service Department-wide.

Many regulations require parties to file and serve documents by mail or by personal delivery in cases pending before the Board. To ensure that the regulations allow for e-filing and e-service through the Department's electronic case management system, and via email when permissible, the Department proposes to remove requirements for filing and service by mail and personal delivery to allow for e-filing and e-service, except where required by statute. Using the general terms “filing” and “service” will allow for all forms of filing and service permitted by 29 CFR part 26. The Department also proposes to cross-reference the Board's rules of practice and procedure at 29 CFR part 26 and the OALJ's rules of practice and procedure at 29 CFR part 18 where necessary to clarify the application of those parts.

Further, in 29 CFR parts 24 and 1978-88, where the Occupational Safety and Health Administration (OSHA) is required to deliver its findings and orders by certified mail, the Department proposes to allow OSHA to deliver such findings and orders by means that allow it to confirm delivery to all parties of record and each party's legal counsel. This would provide flexibility to the agency and allow for electronic delivery when appropriate.

Many regulations require parties to send additional paper copies of all documents to the Board. To allow for better transition to full electronic case management and to simplify the filing process for parties, the Department proposes to remove requirements to send copies of all documents to the Board. Paper copies are not necessary when e-filing, and the Board no longer needs multiple paper copies from self-represented parties or those who are granted an exemption from e-filing.

To update the regulations for clarity, accuracy, and to comply with 29 CFR part 26, the Department proposes to make several technical changes to the regulations. Specifically, the Department proposes to remove outdated mailing addresses for both the Board and the Office of Administrative Law Judges. The Department also proposes to update the regulations that require documents to be filed with the Executive Director of the Board to require that documents be filed the Clerk of the Appellate Boards. The Department also proposes to update the authorities section in 29 CFR parts 7, 8, and 458 to include the applicable Secretary's Order, Secretary's Order 01-2020. Finally, the Department proposes to update the pronouns in 29 CFR 417.15 to account for a previous change from “Secretary” to “Board.”

The Department proposes to revise references to the “Secretary” or the “authority head” to the “Administrative Review Board,” “Board,” or “ARB” to clarify the authority and responsibilities of the Board. Many regulations, particularly older ones, contain references to the “Secretary” or “authority head” for responsibilities that have been delegated to the Board by the Secretary. Where necessary, these changes are accompanied by a provision allowing for discretionary review by the Secretary, in accordance with Secretary's Order 01-2020 (or any successor to that order). In such cases, Board decisions would become final in accordance with the finality provisions of Secretary's Order 01-2020, or any successor to that order.

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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

This rule has been drafted and reviewed in accordance with Executive Order 12866. The Department of Labor, in coordination with the Office of Management and Budget (OMB), determined that this rule is not a significant regulatory action under section 3(f) of Executive Order 12866 because the rule will not have an annual effect on the economy of $100 million or more; will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; and will not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof. Furthermore, the rule does not raise a novel legal or policy issue arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

OMB has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum “Guidance Implementing Executive Order 13771, Titled `Reducing Regulation and Controlling Regulatory Costs' ” (April 5, 2017).

Because no notice of proposed rulemaking is required for this rule under section 553(b) of the Administrative Procedure Act, the regulatory flexibility requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, do not apply to this rule. See 5 U.S.C. 601(2).

The Department has determined that this rule is not subject to the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. (PRA), as this rulemaking involves administrative actions to which the Federal government is a party or that occur after an administrative case file has been opened regarding a particular individual. See 5 CFR 1320.4(a)(2), (c).

The Department has reviewed this rule in accordance with the requirements of Executive Order 13132 and the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq., and has found no potential or 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. As there is no Federal mandate contained herein that could result in increased expenditures by State, local, and tribal governments, or by the private sector, the Department has not prepared a budgetary impact statement.

The Department has reviewed this rule in accordance with Executive Order 13175 and has determined that it does not have “tribal implications.” The rule does not “have substantial direct effects 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.”

The Department has reviewed this rule and has determined that the provisions of Executive Order 13211 are not applicable as this is not a significant regulatory action and there are no direct or implied effects on energy supply, distribution, or use.

For the reasons discussed in the preamble, the Department amends Titles 20, 29, and 41 of the Code of Federal Regulations as set forth below:

This preamble is divided into four sections: Section I describes the process of rulemaking using a direct final rule with a companion proposed rule; Section II provides general background information on the development of the rulemaking; Section III is a section-by-section summary and discussion of the regulatory text; and Section IV covers the administrative requirements for this rulemaking.

The Department is simultaneously publishing with this direct final rule an identical “proposed” rule elsewhere in this issue of the Federal Register . In direct final rulemaking, an agency publishes a final rule with a statement that the rule will go into effect unless the agency receives significant adverse comment within a specified period. If the agency receives no significant adverse comment in response to the direct final rule, the rule goes into effect. If the agency receives significant adverse comment, the agency withdraws the direct final rule and treats such comment as submissions on the proposed rule. The proposed rule then provides the procedural framework to finalize the rule. An agency typically uses direct final rulemaking when it anticipates the rule will be non-controversial.

The Department has determined that this rule is suitable for direct final rulemaking. The revisions to the Board's procedural regulations would require represented parties, unless exempted by the Board for good cause shown, to file documents via the Board's new electronic case management system, which will also automatically serve these documents on registered system users. Some parties are already e-filing documents with the Board on a voluntary basis. Moreover, this new system is similar to those used by courts and other administrative agencies and will thus be familiar to the representatives. The rule also would give self-represented ( pro se ) parties the option to file and serve documents through the electronic case management system or via conventional methods. These changes to the Board's procedures and practices should not be controversial. The Department has determined that this rule is exempt from the notice and comment requirements under 5 U.S.C. 553(b) as a rule of agency practice and procedure. Nonetheless, the agency has decided to allow for public input by issuing a direct final rule and concurrent notice of proposed rulemaking.

The comment period for this direct final rule runs concurrently with the comment period for the proposed rule. Any comments received in response to this direct final rule also will be considered as comments regarding the proposed rule and vice versa. For purposes of this rulemaking, a significant adverse comment is one that explains (1) why the rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the direct final rule will be ineffective or unacceptable without a change. In determining whether a significant adverse comment necessitates withdrawal of this direct final rule, the Department will consider whether the comment raises an issue serious enough to warrant a substantive response had it been submitted in a standard notice-and-comment process. A comment recommending an addition to the rule will not be considered significant and adverse unless the comment explains how the rule would be ineffective without the addition.

The Department requests comments on all issues related to this rule, including economic or other regulatory impacts of this rule on the regulated community. All interested parties should comment at this time because the Department will not initiate an additional comment period on the proposed rule even if it withdraws the direct final rule.

This rule is not an E.O. 13771 regulatory action because the Office of Information and Regulatory Affairs has determined it is not significant under E.O. 12866.

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(3).

The Department promulgates this rule under the authority of 5 U.S.C. 301, as well as the Black Lung Benefits Act, 30 U.S.C. 901 et seq., and the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq.

The Board is promulgating a rule that would make e-filing mandatory and acceptance of e-service automatic for parties represented by attorneys and lay representatives. E-filing has been optional and e-service was not available through the Board's prior electronic system. As a result, the Board would receive filings in both paper and electronic form. The Board's long-term goal is to have entirely electronic case files (e-case files), which the Board believes will significantly benefit both the Board and the participants in Board appeals by allowing the Board to more efficiently process incoming documents and to reduce the time it takes to adjudicate claims. Requiring attorneys and lay representatives to use e-filing and automatically receive service of e-filed documents through the Department's electronic case management system will help the Board move toward this goal.

The Board previously used DOL Appeals, a consolidated web-based case tracking system deployed in FY2011 to replace individual legacy applications and streamline business processes specific to each of the three Adjudicatory Boards in the Department: the Board, the Administrative Review Board (ARB), and the Employees' Compensation Appeals Board (ECAB). The Board reviews appeals of administrative law judges' decisions arising under the Black Lung Benefits Act, and the Longshore and Harbor Workers' Compensation Act and its extensions. The ARB issues decisions in cases arising under a variety of worker protection laws, including those governing environmental, transportation, and securities whistleblower protections; H-1B immigration provisions; child labor; employment discrimination; job training; seasonal and migrant workers; and Federal construction and service contracts. ECAB hears appeals taken from determinations and awards under the Federal Employees' Compensation Act with respect to claims of Federal employees injured in the course of their employment.

The DOL Appeals case management system provided a broad range of capabilities to the Adjudicatory Boards' staff for inputting, processing, tracking, managing, and reporting specific details on thousands of cases since its initial implementation. In FY2013, the system was enhanced to provide access to parties. More than 1,400 individuals were registered users of the DOL Appeals system. Users had the ability to check their case status, electronically file motions and briefs, and receive Board issuances electronically. However, users who e-filed documents still had to serve those documents on other parties by some other method (typically mail, commercial delivery, or electronic mail), as DOL Appeals did not have an automatic e-service function like that of the Federal courts' electronic filing system. Moreover, because e-filing has been optional, the Board received, and still receives, many paper filings, including from attorneys and lay representatives.

At present, the Board lacks sufficient resources to digitally image all pleadings received in paper form, and that option is unduly burdensome and labor intensive. Furthermore, if e-filing remains optional, it is unlikely that the Board will achieve the goal of completely electronic case files. If, however, attorneys and lay representatives are required to e-file all documents through the Board's new case management system, imaging the remaining paper pleadings from self-represented parties would be manageable for the Board. In addition, greater utilization of e-filing and e-service through the new case management system will reduce case processing times by eliminating the timeframes required to allow for the delivery of traditional mailings. These time savings will allow the Board to more efficiently process appeals without any sacrifice to quality of work and will also greatly reduce mailing and copying costs for both the Board and the parties.

Although Federal agencies are required by law to provide information and services via the internet, agencies must also consider the impact on persons without access to the internet and, to the extent practicable, ensure that the availability of government services has not been diminished for such persons. 44 U.S.C. 3501 note. Accordingly, the Board will make e-filing and acceptance of e-service optional for self-represented parties. The Board sees no legal restriction to making e-filing mandatory and acceptance of e-service automatic for attorneys and lay representatives, and does not believe it would impose undue costs or difficulties for them, particularly since a party may obtain an exemption for good cause shown. The Board notes in this regard that e-filing is generally mandatory for attorneys in the Federal district courts and U.S. Courts of Appeals; unless an exemption is granted, only self-represented parties have the option of filing pleadings in paper form. The Board also notes that, consistent with the Federal courts, the Department's electronic case management system requires the filer to convert other electronic formats to Portable Document File (PDF) before filing. Parties filing via the electronic case management system need a computer, access to email and the internet, and the ability to convert documents to a PDF format. The rule also provides that registered electronic case management system users are deemed to accept service of all documents through the system. The Board will issue decisions and orders electronically to registered users who are parties to a case.

The Board removes and reserves the following sections: § 802.204, Place for filing notice of appeal and correspondence; § 802.207, When a notice of appeal is considered to have been filed in the office of the Clerk of the Board; and § 802.216, Service and form of papers. The Board is making this change to clarify and consolidate its rules governing computation of time in current § 802.221, filing of documents in new § 802.222, and service of documents in new § 802.223.

In general, the provisions in §§ 802.204, 802.207, and 802.216 are moved into these three consolidated regulations and revised to accommodate mandatory e-filing and automatic acceptance of e-service for represented parties. The Board is removing from its regulations the requirement in § 802.204 that a party who files a notice of appeal must serve a copy of it on the “deputy commissioner” (an official who is now called “district director,” 20 CFR 701.301(a)(7), 725.101(a)(16)). This non-statutory procedure is no longer required because the Board routinely provides the district director with notice of each appeal filed.

The Board amends § 802.219(d) to replace the current cross-reference to § 802.216, a regulation the Board removes, with cross-references to new §§ 802.222 and 802.223. The new regulations will govern filing and service of motions made to the Board.

The Board amends § 802.221 in several ways. Paragraph (a) retains the same general time computation rule as in current paragraph (a) but substitutes the word “must” for “shall” wherever it occurs. This substitution is consistent with Executive Order 13563, which states that regulations must be “written in plain language[.]” 76 FR 3821 (Jan. 18, 2011). No alteration in meaning is intended by this change.

Paragraph (b) is limited to computing time for nonelectronic documents. Paragraph (b)(1) retains the current provision that, when sent by mail, the time period calculated under paragraph (a) is satisfied if the document is mailed within that time period, as demonstrated by postmark or other evidence. Paragraph (b)(2) adds a new provision to address the widespread use of commercial carriers ( e.g., FedEx, UPS) for delivering documents. The rule provides that the time period calculated under paragraph (a) is satisfied if delivered to the carrier within that time period, as evidenced by the carrier's receipt or tracking information.

Paragraph (c) is a new provision that addresses electronic filings made through the case management system. The time period calculated under paragraph (a) is deemed met if the pleading is filed by 11:59:59 p.m. Eastern Time on the due date. The Board chose the Eastern Time zone based on the fact that Washington, DC is located within it. This mirrors the approach of Federal courts. See, e.g., Fed. R. App. P. 26(a)(4); Fed. R. Civ. P. 6(a)(4). Finally, paragraph (d), which notes that waivers of filing time limits may be requested by motion (except for notices of appeal), is identical to current paragraph (c).

Section 802.222 is a new rule containing all filing requirements. The rule incorporates many of the general provisions in current § 802.216 and adds additional provisions for electronic filings. The rule also includes the special provisions for determining when a notice of appeal is filed that currently appear in § 802.207. Placing all of this information in one section will clarify the parties' obligations when filing any pleading, exhibit, or other document with the Board.

Paragraph (a) contains the general requirements that apply to all pleadings, including captions, certificates of service, signatures, and formatting. Because documents in a case may need to be served by more than one method, paragraph (a)(2) requires the parties to include detailed service information on the certificate of service. To simplify signatures on electronic filings, paragraph (a)(3) provides that pleadings filed via the case management system will be deemed signed by the filing person.

Paragraph (b) is a new provision requiring filing parties to redact certain personally identifiable and sensitive information from all documents filed with the Board. The rule is intended to protect the interests of the parties, minors who may be involved in a case, and the public generally. The language of this rule is based on similar rules in the Federal courts. See, e.g., Fed. R. Civ. P. 5.2(a); see also Fed. R. App. P. 25(a)(5).

Paragraph (c) governs nonelectronic filings. It retains the current requirements for submitting paper documents ( e.g., parties must file an original and two copies of each pleading) and includes the Board's address, which is currently located in § 802.204.

Paragraph (d) is an entirely new provision addressing electronic filings. Paragraph (d)(1) requires attorneys and lay representatives to register for the electronic case management system and file all documents through it. This requirement applies only to those documents filed 45 days after the effective date or later. This time period between the effective date, when litigants can be certain that the direct final rule will not be withdrawn, and the applicability date, on which e-filing becomes mandatory, allows the Office of Administrative Law Judges to update its notices of appeal rights so that by the time e-filing with the Board is mandatory, parties will have received a notice of appeal rights with updated information. It also allows parties who were previously filing and serving documents by mail to adjust to electronic filing. As discussed above, mandating electronic filing and automatically serving documents electronically filed through the system will benefit the parties and improve case processing. The regulation requires that e-filed documents be in PDF format and expresses a preference for text-searchable PDF format. To simplify the filing process, the regulation also informs filers that no paper copies need be filed unless requested by the Board; electronic submission alone is sufficient. Paragraph (d)(2) permits attorneys and lay representatives to request, by motion, an exemption from mandatory e-filing or acceptance of automatic e-service for good cause shown.

Paragraph (d)(3) allows self-represented ( i.e., pro se ) parties to file in either electronic or nonelectronic format. Providing this flexibility will allow these parties to easily participate in their cases. To remove any confusion about whether an electronically filed document is a “paper,” paragraph (d)(4) specifically provides that such documents are written papers for purposes of all of the Board's procedural rules. Paragraph (d)(5) addresses technical failures in two ways. First, any person encountering technical difficulties in filing or receiving electronic documents through the case management system may file a motion with the Board requesting relief appropriate to the particular incident. The Board encourages filers to retain documentation of the failure in these instances. Second, paragraph (d)(5) provides that the Board may issue a special order providing relief ( e.g., allowing nonelectronic filings) when the case management system is not operational.

Paragraph (e) contains special rules on filing notices of appeal. Paragraph (e)(1) incorporates the general rule contained in current § 802.207(a)(1) on the filing date of a notice of appeal. Paragraph (e)(2) generally incorporates the provision in current § 802.207(a)(2) that the Board may consider an appeal submitted to another governmental unit to have been filed with the Clerk of the Board as of the date it was received by the other governmental unit. Paragraph (e)(2) does not specifically require that the other governmental unit promptly forward the notice of appeal to the office of the Clerk of the Board because the Board does not have such authority. Paragraph (e)(3) incorporates the provisions in current § 802.207(b) that permit the Board to use the date of mailing as the filing date for the notice of appeal if appeal rights would otherwise be lost. Paragraph (e)(3) extends this same protection to notices of appeal sent by commercial carrier ( e.g., FedEx, UPS) and provides that the filing date in these instances is the date of delivery to the commercial carrier. Given the widespread use of commercial carriers, this additional provision will help ensure that parties' appeal rights are not lost. Finally, paragraph (e)(4) clarifies that electronic notices of appeal filed through the case management system are considered received, and thus filed, as of the date and time recorded by the system.

Section § 802.223 is a new rule containing all service requirements. Paragraph (a) requires, akin to current § 802.216(c), parties to serve every party in the case and the Solicitor of Labor with a copy of all documents filed with the Board. Paragraph (b) identifies the types of nonelectronic service (personal delivery; mail or commercial delivery) and electronic service (electronic mail, if consented to in writing by the person served, and electronic service to a registered user through the case management system) permitted. Significantly, paragraph (b)(2)(B) provides that a registered electronic case management system user “is deemed to have consented to accept service through the system.” Thus, automatic service through the electronic case management system is effective with respect to registered system users without any additional form of service. Paragraph (c) describes when service is effected for different delivery methods, which could become important to a cross-appeal filing under § 802.205(b).

Finally, paragraph (d) governs the date of receipt for electronic documents served by the case management system or electronic mail. The receipt date is particularly important to determining deadlines for response briefs, responses to motions, and requests for oral argument. See §§ 802.212, 802.219, 802.305. Under paragraph (d)(1), electronic case management system-served documents are considered received by the system's registered users in the case on the date the document is sent by the system. Similarly, under paragraph (d)(2) documents served via electronic mail are considered received when sent. In both instances, the recipients of service will have rapid access to the filed pleading, exhibit, or other document.

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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

This direct final rule has been drafted and reviewed in accordance with Executive Order 12866. The Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB) determined that this direct final rule is not a significant regulatory action under section 3(f) of Executive Order 12866 because the rule will not have an annual effect on the economy of $100 million or more; will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; and will not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof. Furthermore, the rule does not raise a novel legal or policy issue arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Accordingly, OMB has waived review.

Because no notice of proposed rulemaking is required for this rule under section 553(b) of the Administrative Procedure Act, the regulatory flexibility requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, do not apply to this rule. See 5 U.S.C. 601(2).

The Department has determined that this direct final rule is not subject to the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., as this rulemaking involves administrative actions to which the Federal government is a party or that occur after an administrative case file has been opened regarding a particular individual. See 5 CFR 1320.4(a)(2), (c).

The Department has reviewed this rule in accordance with the requirements of Executive Order 13132 and the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq., and has found no potential or 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. As there is no Federal mandate contained herein that could result in increased expenditures by state, local, and tribal governments, or by the private sector, the Department has not prepared a budgetary impact statement.

The Department has reviewed this rule in accordance with Executive Order 13175 and has determined that it does not have “tribal implications.” The direct final rule does not “have substantial direct effects 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.”

For the reasons set forth in the preamble, the Department of Labor amends 20 CFR part 802 as follows:

This preamble has four sections: Section I describes the process of rulemaking using a direct final rule with a companion proposed rule; Section II provides background; Section III provides a section-by-section analysis of the regulatory text; and Section IV addresses the administrative requirements for this rulemaking.

In direct final rulemaking, an agency publishes a direct final rule in the Federal Register with a statement that the rule will go into effect unless the agency receives significant adverse comment within a specified period. The agency concurrently publishes an identical proposed rule. If the agency receives no significant adverse comment in response to the direct final rule, the agency publishes a Federal Register notice withdrawing the proposed rule, and the final rule goes into effect. If the agency receives significant adverse comment, the agency withdraws the direct final rule and treats such comment as submissions on the proposed rule. An agency typically uses direct final rulemaking when it anticipates the rule will be non-controversial.

The Department has determined that this rule, which revises the OALJ rules of practice and procedure to accommodate electronic filing by persons appearing before OALJ and electronic service of ALJ-issued documents, is exempt from the notice and comment requirements under 5 U.S.C. 553(b) as a rule of agency practice and procedure. Regardless, the agency has decided to allow for public input, so this rule is suitable for direct final rulemaking. The rule makes technical changes to OALJ's procedural rules, and—consistent with similar court and agency e-filing systems—provides that persons represented by attorney and non-attorney representatives will be required to e-file unless good cause is shown to be exempted, and that self-represented persons will have the option of e-filing or using conventional filing methods. Thus, the Department does not expect to receive significant adverse comment on this rule.

The Department is also publishing a companion notice of proposed rulemaking in the “Proposed Rules” section of today's Federal Register to expedite notice-and-comment rulemaking in the event the Department receives significant adverse comment and withdraws this direct final rule. The proposed and direct final rules are substantively identical, and their respective comment periods run concurrently. The Department will treat comments received on the companion proposed rule as comments regarding the direct final rule and vice versa. Thus, if the Department receives significant adverse comment on either this direct final rule or the companion proposed rule, the Department will publish a Federal Register notice withdrawing this direct final rule and will proceed with the proposed rule. If no significant adverse comment is received, this direct final rule will become effective.

For purposes of this direct final rule, a significant adverse comment is one that explains (1) why the rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the direct final rule will be ineffective or unacceptable without a change. In determining whether a significant adverse comment necessitates withdrawal of this direct final rule, the Department will consider whether the comment raises an issue serious enough to warrant a substantive response had it been submitted in a standard notice-and-comment process. A comment recommending an addition to the rule will not be considered significant and adverse unless the comment explains how this direct final rule would be ineffective without the addition.

The Department requests comments on all issues related to this rule, including economic or other regulatory impacts of this rule on the regulated community.

This rule is not an E.O. 13771 regulatory action because it is not significant under E.O. 12866.

On May 19, 2015, the regulations governing practice and procedure for proceedings before the United States Department of Labor, Office of Administrative Law Judges (OALJ) were significantly revised. 80 FR 28768 (May 19, 2015). At the time, the Department acknowledged that implementation of a dedicated electronic filing system and electronic service system for OALJ adjudications would be beneficial, but stated that because the OALJ did not have a dedicated electronic filing and service system, the rules of practice and procedure necessarily focused on traditional filing and service. 80 FR at 28772, 28775. The Department now has an electronic filing and service system (eFile/eServe system) for its adjudicatory agencies. This revision to part 18 makes regulatory changes to implement this new system.

When the Department revised the OALJ rules of practice and procedure in 2015, it modeled those rules on the Federal Rules of Civil Procedure (FRCP). The Department noted that “[u]sing language similar or identical to the applicable FRCP gains the advantage of the broad experience of the Federal courts and the well-developed precedent they have created to guide litigants, judges, and reviewing authorities within the Department on procedure. Parties and judges obtain the additional advantage of focusing primarily on the substance of the administrative disputes, spending less time on the distraction of litigating about procedure.” 77 FR 72142, 72144 (Dec. 4, 2012) (proposed rule). Accordingly, the Department revises part 18 to accommodate electronic filing with a view toward aligning part 18, to the extent practicable, with the equivalent federal rules.

The current OALJ rule at 29 CFR 18.30 governs serving and filing of pleadings and other papers, and was modeled on FRCP 5. As noted above, § 18.30 did not address in detail electronic filing or service because OALJ did not have a dedicated e-filing system in 2015. In 2018, FRCP 5 was amended to revise the provisions for electronic service based on the federal judiciary's experience with its electronic filing system, namely the Case Management/Electronic Case Files (CM/ECF) system. In brief, the changes to FRCP 5 deleted the requirement of consent in writing to electronic service where service is made on a registered user through the court's electronic filing system; ended the practice of leaving it to local rules to require or allow electronic filing, and instead established a uniform national rule that makes electronic filing mandatory for parties represented by counsel (providing, however, for certain exceptions); required that any local rule requiring electronic filing by self-represented parties must allow reasonable exceptions; established a uniform national signature provision; and provided that no certificate of service is required when a paper is served by filing it with the court's electronic filing system.

Most of the Rule 5 revisions make sense in regard to DOL OALJ adjudications but with some modifications to reflect administrative practice and functional differences between CM/ECF and the Department's eFile/eServe system. As explained in more detail below, the regulatory amendments address the following:

• Require persons represented by attorney and non-attorney representatives to use the Department's system to file all papers electronically and to receive electronic service of documents unless another form of filing or service is allowed by the presiding judge for good cause or is required by standing order;

• give self-represented persons the option to use conventional means of filing, or to use the Department's system to file all papers electronically and to receive electronic service of documents;

• provide that a filing made through a person's eFile/eServe system account and authorized by that person, together with that person's name on a signature block, constitutes that person's signature.

FRCP 5(d)(1)(B) was revised in 2018 to provide that “[n]o certificate of service is required when a paper is served by filing it with the court's electronic-filing system.” The Department, however, has determined that a certificate of service will continue to be required for all filings with OALJ given that (1) OALJ proceedings have a significant number of self-represented parties as participants, and (2) especially early in OALJ proceedings, the identification of parties and their representatives—and accurate contact information for such persons and entities—is often fluid and uncertain. Compare “ Notice for Comment on Proposed Amendments to the Local Civil and Criminal Rules for the Middle District of Louisiana” (Apr. 12, 2019) (proposing to revise court's local rule to provide that a certificate of service is required for an initial complaint filed with the court's electronic filing system, and the case involves a party who is not an electronic filer); General Order 2019-06 (M.D. La. Nov. 12, 2019) (adopting amendment to Local Civil Rule 5(e)(1) to provide that “[w]hen a document filed after the initial complaint is served by filing it with the Court's electronic filing system, no certificate of service is required when all parties are electronic filers.”).

The Department notes that, as with all OALJ rules of practice and procedure, the e-filing provisions will not apply if they are “inconsistent with a governing statute, regulation, or executive order. . . . If a specific Department of Labor regulation governs a proceeding, the provisions of that regulation apply[.]” 20 CFR 18.10(a). For instance, OALJ will continue to serve decisions via certified mail where required by the governing statute or regulation, including on persons participating in the Department's eFile/eServe system.

Finally, as a consequence of the COVID-19 national emergency in 2020, courts and administrative adjudicators across the Nation have dramatically increased the use of telephonic and video hearings, including the Department of Labor's OALJ. The Department is revising Part 18 to require the judge to give advance notice of the manner of the hearing—whether in person in the same physical location, by telephone, by videoconference, or by other means—and to provide parties an opportunity to request a different manner of hearing. See 5 U.S.C. 554(b)(1) (requiring timely notice of the time, place, and nature of the hearing).

A definition of “ eFile/eServe system” is added to the definitions section of part 18 to clarify that it means the Department of Labor's electronic filing and electronic service system for adjudications.

A definition of “ registered user” is added to the definitions section of part 18 to clarify that it means any person registered to file papers using the Department's eFile/eServe system.

A definition of “ standing order” is added to the definitions section of part 18. Amendments to § 18.30 follow the language of FRCP 5 to permit exceptions, permissions, or requirements relating to e-filing to be established by “local rule.” OALJ is organized differently than the judiciary, and does not use local rules. However, OALJ sometimes issues Administrative Orders addressing court administration applicable to all cases pending before OALJ, or to all cases pending in a district office. For example, in the past when an OALJ district office was closed for an extended period due to severe weather conditions and the aftermath, the Chief Judge or District Chief Judge issued an Administrative Order extending filing dates and permitting alternative forms of filing (such as email) until the office returned to normal operations. Similarly, OALJ may need to issue standing orders to address national or local conditions impacting electronic filing.

The current §  18.30 is modeled on FRCP 5. FRCP 5 was amended in 2018 in regard to electronic filing, and the following revisions to § 18.30 are modeled on the FRCP 5 amendments to the extent practicable.

Paragraph (a)(2)(ii)(E) is revised to permit a registered user of the Department's eFile/eServe system to serve filings on other registered users through the Department's system.

A new paragraph (a)(2)(iii) is added to provide that represented persons required to file electronically using the Department's eFile/eServe system, and self-represented persons who opt to file electronically using that system, are deemed to have consented to electronic service of documents issued by the judge and papers filed by other registered users of the system.

The first sentence of paragraph (b)(1) is revised to harmonize it to the current FRCP 5 in regard to the time period for filing a paper. Specifically, rather than the current requirement to file a paper “within a reasonable time after service with a certificate of service,” the amended paragraph requires filing “no later than a reasonable time after service.” The FRCP 5 made this change because “within” might be read as barring filing before the paper is served. “No later than” was substituted in FRCP 5 to ensure that it is proper to file a paper before it is served.

Paragraph (b)(2) is revised to clarify that a paper submitted electronically in the Department's eFile/eServe system is filed when received by that system.

The provisions of §  18.30(b)(3) have been amended and reorganized. New paragraph (b)(3)(i)(A) provides that a person represented by an attorney or non-attorney representative is required to file using the Department's eFile/eServe system following the instructions on the system's website, unless another form of electronic or non-electronic filing is allowed by the judge for good cause or is allowed or required by standing order. This aligns practice before OALJ with current common practice before state and federal courts and agencies. See 76 FR 56107 (Sept. 12, 2011) (Social Security Administration final rule announcing that it will require claimant representatives to use SSA's electronic services as they become available on matters for which the representatives request direct fee payment); 76 FR 63537 (Oct. 13, 2011) (U.S. Merit Systems Protection Board pilot program requiring agencies and attorneys representing appellants to file pleadings electronically for appeals in the Washington Regional Office and Denver Field Office); 84 FR 14554 (Apr. 10, 2019) (Occupational Safety and Health Review Commission final rule adopting mandatory electronic filing and service); 84 FR 37081 (July 31, 2019) (U.S. Patent and Trademark Office final rule amending its Rules of Practice in Trademark Cases and Rules of Practice in Filings to mandate electronic filing of trademark applications and submissions associated with trademark applications and registrations). The Department believes that, rather than imposing undue costs or difficulties on representatives, e-filing will reduce costs and make filing with OALJ more convenient and certain. See generally http://www.azd.uscourts.gov/efiling/advantages (outlining advantages of electronic case filing). At present, a representative filing via the Department's eFile/eServe system would need a computer, access to email and the internet, and a Portable Document Format (PDF) application. Such capacities are common, if not essential, in legal practice today. Moreover, because a representative is allowed to establish good cause for using other forms of filing, the amended rule allows for reasonable exceptions to an e-filing mandate. This requirement applies only to those documents filed 45 days after the effective date or later. This time period between the effective date, when litigants can be certain that the direct final rule will not be withdrawn, and the applicability date, on which e-filing becomes mandatory, allows the Department time to update its communications to parties about how to file and allows parties who were previously filing and serving documents by mail to adjust to electronic filing.

New paragraph (b)(3)(i)(B) provides that a self-represented person may use the Department's eFile/eServe system to file papers. This is a more permissive approach than found in FRCP 5, which allows a self-represented party to file electronically only by court order or a local rule. The Department, by contrast, encourages all persons participating in OALJ hearings to use the Department's eFile/eServe system for filings.

New paragraph (b)(3)(i)(C) provides that a filing made through the Department's eFile/eServe system containing the registered user's name on a signature block constitutes that person's signature. This is consistent with FRCP 5 and provides a simple, practical solution to the signing of papers filed electronically through the Department's system.

New paragraph (b)(3)(i)(D) provides that a paper filed electronically is a written paper for purposes of the part 18 regulations. This provision is consistent with FRCP 5(d)(3)(D).

Current § 18.30(b)(3) has been moved to paragraph (b)(3)(ii), and modified to state the permissible methods of filing for those persons excepted from mandatory use of the Department's eFile/eServe system. Paragraph (b)(3)(ii) is also revised to state the website address at which current OALJ National and District office addresses are listed—specifically: https://www.dol.gov/agencies/oalj/contacts.

Current § 18.30(b)(3)(i) requires prior permission from the judge to file by facsimile. With the availability of e-filing, the concerns that prompted that limitation on facsimile filing will be largely mooted. For self-represented persons who do not have ready access to reliable internet services, filing by facsimile may be a viable alternative. Thus, the Department will eliminate the requirement of current § 18.30(b)(3)(i)(A) to receive prior permission to file by facsimile. The Department, however, will retain the current requirements for use of a facsimile cover sheet and retention of the original document and a transmission record. These requirements are consolidated and re-lettered as new paragraphs (b)(3)(ii)(A) and (B).

Current § 18.30(b)(4) is deleted as it has been mooted by the new provisions in paragraph 18.30(b)(3)(i).

FRCP 6(a) governs the computation of time periods under the FRCP, in any local rule or court order, or in any statute that does not specify a method of computing time. In this regard, FRCP 6(a)(1)(C) provides that the “last day” of a time period is included in the calculation, and provides that the “last day” ends at midnight in the court's time zone for electronic filing, and when the clerk's office is scheduled to close for filing by other means. FRCP 6(a)(4)(A) and (B).

The current § 18.32 is modeled on FRCP 6, but does not address electronic filing. Thus, the Department revises § 18.32(a)(2)(i) to provide that unless a different time is set by a statute, executive order, regulation, or judge's order, for electronic filing, the “last day” goes through 11:59:59 p.m. in the time zone of the presiding judge's office—or, for cases not yet assigned to an OALJ national or district office—in the time zone of the office of the Chief Judge of OALJ. Although standardizing the time for electronic filing at midnight Eastern Time on the last day of the filing period was considered, because the Department's eFile/eServe system is administered in Washington, DC, the Department opted to set the time based on local time at the presiding judge's location in order not to reduce hours available for e-filing for persons outside the Eastern time zone. In regard to filing by means other than electronic filing, the Department revises § 18.32(a)(2)(ii) to follow FRCP 6(a)(4)(B) to state “when the clerk's office is scheduled to close.” OALJ clerks' offices close at 4:30 p.m. in the time zone of the presiding judge's office or 4:30 p.m. in the time zone of the office of the Chief Judge of OALJ for cases not yet assigned to an OALJ national or district office.

The current § 18.34 addresses the format of papers filed in hard copy. New § 18.34 requires that papers filed electronically be in a format that is accepted by the Department's eFile/eServe system.

Current § 18.40(a) requires that the judge provide at least 14 days' notice of the date, time, and place of the hearing. In view of increased use of telephonic and video hearings, § 18.40(a) is revised to require the judge to also provide 14 days' notice of the manner of hearing, whether in person in the same physical location, by telephone, by videoconference, or by other means. Paragraph 18.40(a) is also revised to refer to the provisions of new § 18.30(a) in regard to how the notice of hearing will be sent to the parties. This revision is necessary to harmonize § 18.40(a) with the new eFile/eServe system.

The Department amends § 18.40(b) to require the judge to consider the convenience and necessity of the parties and witnesses in selecting the manner of the hearing.

Current § 18.41 addresses changes to the time, date, and place of the hearing. The Department amends § 18.41(a), (b), and (c) to add the manner of the hearing to the subjects that can be changed by the judge or upon motion of a party.

Current § 18.44(b) provides that prehearing conferences may be conducted in person, by telephone, or other means. New § 18.44(b) explicitly includes videoconferences as a permissible means of conducting prehearing conferences.

By 2022, the National Archives and Records Administration (NARA) will, to the fullest extent possible, no longer accept temporary or permanent records from agencies in a non-electronic format. See National Archives and Records Administration, 2018-2022 Strategic Plan at 12 (Feb. 2018); Delivering Government Solutions in the 21st Century, at 22, 100-102 (June 21, 2018). Accordingly, the Department must move expeditiously toward conducting administrative adjudications using electronic records to the greatest extent practical. Thus, new § 18.82(a) provides that those who are required or have opted to file using the Department's eFile/eServe system must file electronically any exhibits to be offered into evidence at the hearing, unless the exhibit is not susceptive to electronic filing. An example of an exhibit not susceptive to electronic filing is a three-dimensional object. Current paragraphs (a) through (g) are re-lettered to paragraphs (b) through (h). Newly lettered paragraph (d) on exchange of exhibits is amended to clarify that if a copy of a written exhibit being offered into evidence was previously filed electronically pursuant to § 18.82(a), a physical copy of the exhibit need not be produced for the judge at the hearing unless the judge directs otherwise.

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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.

This direct final rule has been drafted and reviewed in accordance with Executive Order 12866. The Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB) determined that this direct final rule is not a significant regulatory action under section 3(f) of Executive Order 12866 because the rule will not have an annual effect on the economy of $100 million or more; will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; and will not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof. Furthermore, the rule does not raise a novel legal or policy issue arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Accordingly, OMB has waived review.

Because no notice of proposed rulemaking is required for this rule under section 553(b) of the Administrative Procedure Act, the regulatory flexibility requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, do not apply to this rule. See 5 U.S.C. 601(2).

The Department has determined that this direct final rule is not subject to the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. (PRA), as this rulemaking involves administrative actions to which the Federal government is a party or that occur after an administrative case file has been opened regarding a particular individual. See 5 CFR 1320.4(a)(2), (c).

The Department has reviewed this direct final rule in accordance with the requirements of Executive Order 13132 and the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq., and has found no potential or 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. As there is no federal mandate contained herein that could result in increased expenditures by state, local, and tribal governments, or by the private sector, the Department has not prepared a budgetary impact statement.

The Department has reviewed this direct final rule in accordance with Executive Order 13175 and has determined that it does not have “tribal implications.” The direct final rule does not “have substantial direct effects 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.”

For the reasons set out in the Preamble, the Department of Labor amends 29 CFR part 18 as set forth below.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register OMB Office of Management and Budget NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

On September 20, 2017, the U.S. Coast Guard issued San Joaquin County a permit to construct the new removable span Woodward Island Bridge across Middle River, mile 11.8, near Discovery Bay, CA. Construction was completed on January 23, 2020. The new bridge provides 30 feet of vertical clearance in the closed-to-navigation position, unlimited vertical clearance when the span is removed, and 83 feet of horizontal clearance, dolphin to dolphin, measured normal to the centerline of the channel. The opening requirement for the newly constructed Woodward Island Bridge over Middle River is currently governed by 33 CFR 117.5, which requires prompt and full opening for the passage of vessels when a request or signal to open is given.

A three-year navigational analysis of that portion of Middle River was conducted between 2000 and 2003. The results of the analysis indicated the newly constructed bridge would meet the reasonable needs of recreational vessels that normally use the waterway. Vessels which cannot transit the bridge in the closed position have an alternate route to reach the opposite side of the bridge.

The Woodward Island Bridge was designed with a removable span to allow emergency vessels engaged in levee repair to request an opening when necessary. Since most recreational vessels can transit the new Woodward Island Bridge and there is an alternate route around the bridge, there is no need for an “open on demand” regulation as prescribed in 33 CFR 117.5.

On July 23, 2020, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled “Drawbridge Operation Regulation; Middle River, near Discovery Bay, CA” (85 FR 44494). Further, on July 27, 2020, Commander (dpw), Eleventh Coast Guard District mailed notification of the NPRM to 48 interested parties that have known to use Middle River and published a notification of the NPRM in the Local Notice to Mariners, No. 30/20. The Coast Guard received one comment which was unrelated to the proposed rule.

The Coast Guard is issuing this rule under the authority at 33 U.S.C. 499. The Woodward Island Bridge across Middle River, mile 11.8, near Discovery Bay, CA is a removable span bridge which provides 30 feet of vertical clearance in the closed-to-navigation position, unlimited vertical clearance when the span is removed, and 83 feet of horizontal clearance, dolphin to dolphin, measured normal to the centerline of the channel. Most recreational vessels can transit the bridge in the closed-to-navigation position. Vessels that cannot transit the bridge while closed can take an alternate route to reach either side of the bridge.

This final rule will ensure that if emergency levee repairs are needed downstream of the bridge, tug and crane barges will be able to request an opening to allow passage.

As noted above, we received one comment on our NPRM published on July 23, 2020 that was unrelated to the proposed rule. With the exception of a non-substantive correction of a typographical error in § 117.171(b), there are no changes in the regulatory text of this rule from the NPRM. The final rule would require the removable span to open for vessels engaged in emergency levee repairs. This final rule would meet the reasonable needs of navigation.

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 protesters.

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, it has not been reviewed by the Office of Management and Budget (OMB) and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the ability of the newly constructed bridge to meet the reasonable needs of recreational vessels that normally use the waterway. Vessels which cannot transit the bridge in the closed position have an alternate route to reach the opposite side of the bridge.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rule. 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 bridge 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 (Pub. L. 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 calls for no 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.

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 Management Directive 023-01, Rev.1, associated implementing instructions, and 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). The Coast Guard has 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 promulgates the operating regulations or procedures for drawbridges and is categorically excluded from further review under paragraph L49 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

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 117 as follows:

This final rule removes from the CFR 33 CFR part 223, Boards, Commissions, and Committees. The rule was initially published in the Federal Register on November 9, 1978 (43 FR 52236). This regulation established and prescribed the objectives, composition, responsibilities and authority of the Mississippi River Water Control Management Board which is comprised of only Corps members and only oversees Corps-related functions in the Mississippi River Basin. The objectives of the Board are to provide oversight and guidance during the development of basin-wide management plans for Mississippi River Basin projects for which the Corps has operation/regulation responsibilities, and to serve as a forum for resolution of water control problems among Corps Divisions within the Mississippi River Basin when agreement is otherwise unobtainable. It was published, at that time, in the Federal Register to aid public accessibility. The solicitation of public comment for this removal is unnecessary because the rule is redundant of and covers internal agency operations that have no public compliance component or adverse public impact. For current public accessibility purposes, the current guidance governing the Greater Mississippi River Basin Water Management Board may be found in Engineer Regulation 15-2-13, “Greater Mississippi River Basin Water Management Board” (available at https://www.publications.usace.army.mil/Portals/76/Publications/EngineerRegulations/ER_15-2-13.pdf?ver=2014-01-30-134510-207 ). The agency policy is only applicable to Board members and to all field operating activities concerned with water management within the Greater Mississippi River Basin and establishes and prescribes the objectives, composition, responsibilities and authority of the Corps' Greater Mississippi River Basin Water Management Board.

This rule removal is being conducted to reduce confusion for the public as well as for the Corps regarding the current policy which governs the Corps' Greater Mississippi River Basin Water Management Board. Because the regulation does not place a burden on the public, its removal does not provide a reduction in public burden or costs.

This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review.” Therefore, the requirements of E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs,” do not apply. This removal supports a recommendation of the DoD Regulatory Reform Task Force.

This final rule removes from the CFR 33 CFR part 236, Water Resource Policies and Authorities: Corps of Engineers Participation in Improvements for Environmental Quality. The rule was initially published in the Federal Register on April 30, 1980 (45 FR 28714). The regulation provided guidance and procedures to Corps field offices regarding the Corps' role in environmental quality improvements as part of a water resource project. The Corps' role in environmental quality broadened over the years and the regulation made clear that balancing economic and environmental interests was a major requirement to be considered in the planning of all Corps projects. It was published, at that time, in the Federal Register to aid public accessibility. The solicitation of public comment for this removal is unnecessary because the rule is out-of-date and redundant of or otherwise covers internal agency operations that have no public compliance component or adverse public impact. For current public accessibility purposes, updated internal agency policy on this topic may be found in the Principles for Water and Related Land Resources Implementation Studies, related to the formulation of recommended plans for water resources development projects, and in Engineer Regulation 1105-2-100, “Planning Guidance Notebook” (available at https://www.publications.usace.army.mil/Portals/76/Publications/EngineerRegulations/ER_1105-2-100.pdf ). Also, environmental evaluation is required under the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321-4347) and is implemented by the U.S. Army Corps of Engineers pursuant to 33 CFR part 230, Procedures for Implementing NEPA.

This rule removal is being conducted to reduce confusion for the public as well as for the Corps regarding the current policy which governs the Corps' use of Environmental Quality measures in Corps projects as well as the current policy for environmental evaluation. The Procedures for Implementing NEPA were updated after this regulation and provide the current policy approach for the Corps in their environmental evaluation process. Because the regulation does not place a burden on the public, its removal does not provide a reduction in public burden or costs.

This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review.” Therefore, the requirements of E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs,” do not apply. This removal supports a recommendation of the DoD Regulatory Reform Task Force.

This final rule removes from the CFR 33 CFR part 239, Water Resources Policies and Authorities: Federal Participation in Covered Flood Control Channels. The rule was initially published in the Federal Register on October 13, 1978 (43 FR 47470), and amended on June 21, 1979 (44 FR 36175). The regulation established policy for determining Federal participation in covered flood control channels. The regulation made clear that if, during the planning process, it appears that covered flood control channels are desirable, reporting officers may evaluate them and include them when they best serve the public interest. The regulation specified what reports on proposals to provide covered channels should include for engineering considerations. It was published, at that time, in the Federal Register to aid public accessibility. The solicitation of public comment for this removal is unnecessary because the rule is outdated in reference to engineering criteria and requirements and covers internal agency operations that have no public compliance component or adverse public impact. For current public accessibility purposes, the current policy on Federal participation in flood control projects may be found in Engineer Regulation 1165-2-21, “Flood Damage Reduction Measures in Urban Areas,” dated October 30, 1980 (available at https://www.publications.usace.army.mil/Portals/76/Publications/EngineerRegulations/ER_1165-2-21.pdf ); and 33 CFR part 238, Flood Damage Reduction Measures in Urban Areas. The agency policy is only applicable to field operating activities having Civil Works responsibilities and provides guidance specific to the Corps' participation in urban flood damage reduction projects.

This rule removal is being conducted to reduce confusion for the public as well as for the Corps regarding the current policy which governs Federal participation in covered flood control channels. Because the regulation does not place a burden on the public, its removal does not provide a reduction in public burden or costs.

This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review.” Therefore, the requirements of E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs,” do not apply. This removal supports a recommendation of the DoD Regulatory Reform Task Force.

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act) requires, in pertinent part, agencies to make an annual adjustment for inflation by January 15th every year. OMB, M-16-06, Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Feb. 24, 2016). The Office of Management and Budget (OMB) annually publishes guidance on the adjustment multiplier to assist agencies in calculating the mandatory annual adjustments for inflation.

The NTSB's most recent adjustment was for fiscal year (FY) 2020, allowing the agency to impose a civil penalty up to $1,722, effective January 15, 2020, on a person who violates 49 U.S.C. 1132 (Civil aircraft accident investigations), 1134(b) (Inspection, testing, preservation, and moving of aircraft and parts), 1134(f)(1) (Autopsies), or 1136(g) (Prohibited actions when providing assistance to families of passengers involved in aircraft accidents). Civil Monetary Penalty Annual Inflation Adjustment, 85 FR 2319 (Jan. 15, 2020).

OMB has since published updated guidance for FY 2021. OMB, M-21-10, Implementation of Penalty Inflation Adjustments for 2021, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Dec. 23, 2020). Accordingly, this final rule reflects the NTSB's 2021 annual inflation adjustment and updates the maximum civil penalty from $1,722 to $1,742.

The 2021 annual adjustment is calculated by multiplying the applicable maximum civil penalty amount by the cost-of-living adjustment multiplier, which is based on the Consumer Price Index and rounding to the nearest dollar. OMB, M-21-10, Implementation of Penalty Inflation Adjustments for 2021, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Dec. 23, 2020). For FY 2021, OMB's guidance states that the cost-of-living adjustment multiplier is 1.01182.

Accordingly, multiplying the current penalty of $1,722 by 1.01182 equals $1,742.35, which rounded to the nearest dollar equals $1,742. This updated maximum penalty for the upcoming fiscal year applies only to civil penalties assessed after the effective date of the final rule. The next civil penalty adjustment for inflation will be calculated by January 15, 2022.

The Office of Information and Regulatory Affairs Administrator has determined agency regulations that exclusively implement the annual adjustment are consistent with OMB's annual guidance, and have an annual impact of less than $100 million are generally not significant regulatory actions under Executive Order (E.O.) 12866. OMB, M-21-10, Implementation of Penalty Inflation Adjustments for 2021, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Dec. 23, 2020). An assessment of its potential costs and benefits under E.O. 12866, Regulatory Planning and Review and E.O. 13563, Improving Regulation and Regulatory Review is not required because this final rule is not a “significant regulatory action.” Likewise, this rule does not require analyses under the Unfunded Mandates Reform Act of 1995 and E.O. 13771, Reducing Regulation and Controlling Regulatory Costs because this final rule is nonsignificant.

The NTSB does not anticipate this rule will have a substantial direct effect on state government or will preempt state law. Accordingly, this rule does not have implications for federalism under E.O. 13132, Federalism.

The NTSB also evaluated this rule under E.O. 13175, Consultation and Coordination with Indian Tribal Governments. The agency has concluded that this final rule will 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.

The Paperwork Reduction Act of 1995 is inapplicable because the final rule imposes no new information reporting or recordkeeping necessitating clearance by OMB.

The Regulatory Flexibility Act of 1980 does not apply because, as a final rule, this action is not subject to prior notice and comment. See 5 U.S.C. 604(a).

The NTSB has concluded that this final rule neither violates nor requires further consideration under the aforementioned Executive orders and Acts.

Accordingly, for the reasons stated in the preamble, the NTSB amends 49 CFR part 831 as follows:

Background

The goal of the Atlantic Herring Fishery Management Plan (FMP) is to manage the herring fishery at long-term sustainable levels, and objectives of the FMP include providing for full utilization of the optimum yield (OY) and, to the extent practicable, controlled opportunities for participants in other New England and Mid-Atlantic fisheries. Consistent with the Magnuson-Stevens Fishery Conservation and Management Act definition of OY, the Herring FMP describes OY as the amount of fish that will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, taking into account the protection of marine ecosystems, including maintenance of a biomass that supports the ocean ecosystem, predator consumption of herring, and biologically sustainable human harvest. The Magnuson-Stevens Act further provides that OY is the maximum sustainable yield (MSY) from the fishery as reduced by any relevant economic, social, or ecological factor. In the Herring FMP, this includes recognition of the importance of herring as forage for fish, marine mammals, and birds in the Greater Atlantic Region. Consistent with these aims, the goals for Amendment 8 are to: (1) Account for the role of herring within the ecosystem, including its role as forage; (2) stabilize the fishery at a level designed to achieve OY; and (3) address localized depletion in inshore waters.

An acceptable biological catch (ABC) control rule is a formulaic approach for setting a harvest limit that reflects the FMP's harvest policy. For herring and other stocks with a defined overfishing limit (OFL), the ABC is reduced from the OFL to account for an estimate of scientific uncertainty, such as uncertainty around stock size estimates, variability around estimates of recruitment, and consideration of ecosystem issues, so that the OFL will not be exceeded. The ABC control rule is developed by the Council to reflect its risk tolerance for not exceeding the OFL and provides guidance to the Council's Scientific and Statistical Committee for recommending annual ABCs based on the best available scientific information about stock status. The specific parameters of an ABC control rule are: (1) Upper biomass parameter; (2) maximum allowable fishing mortality rate (F); and (3) lower biomass parameter. The values assigned to each of these parameters dictate the overall “shape” or function of the ABC control rule and determine whether F increases or decreases in response to the current estimate of stock biomass.

On August 21, 2015 (80 FR 50825), the Council published a supplemental notice of intent (NOI) announcing it was expanding the scope of Amendment 8 beyond an ABC control rule to consider localized depletion in inshore waters. Public comment during the supplemental scoping made it clear that localized depletion concerns voiced by many stakeholders included the biological impacts of herring removals on the herring stock and on predators of herring. Public comment also indicated that impacts of localized depletion should be measured and evaluated relative to competing uses for the herring resource and potentially negative economic impacts on businesses that rely on predators of herring. Therefore, the Council's consideration of localized depletion in Amendment 8 included user group conflict, both an evaluation of impacts of the user group conflict and consideration of competing interests for how herring should be used.

Amendment 8 was adopted by the Council on September 25, 2018. We published a notice of availability (NOA) for the amendment in the Federal Register on August 21, 2019 (84 FR 43573), with a comment period ending October 21, 2019. We published a proposed rule for the amendment in the Federal Register on October 9, 2019 (84 FR 54094), with a comment period ending November 25, 2019. After considering public comment, we approved Amendment 8, on behalf of the Secretary of Commerce, on November 19, 2019, and notified the Council of the amendment's approval in a letter dated that same day. This final rule implements Amendment 8 as approved. Because details of the Council's development of the measures in Amendment 8 were described in the NOA and proposed rule, they are not repeated here.

The Magnuson-Stevens Act allows us to approve, partially approve, or disapprove measures recommended by the Council in an amendment based on whether the measures are consistent with the fishery management plan, plan amendment, the Magnuson-Stevens Act and its National Standards, and other applicable law. After reviewing public comment, we approved all the proposed measures in Amendment 8, as recommended by the Council. While the majority of public comment supported the implementation of Amendment 8, we also received public comment urging us to disapprove the amendment. Ultimately, we approved the proposed measures in Amendment 8 because we determined the measures were consistent with the Magnuson-Stevens Act and other applicable law. Comments that opposed the implementation of Amendment 8 did not sufficiently demonstrate that the ABC control rule or inshore midwater trawl restricted area were inconsistent with the Magnuson-Stevens Act or other applicable law.

This rule establishes a long-term ABC control rule for herring. Under the control rule, when biomass (B) is at or above 50 percent of B MSY or its proxy, ABC is the catch associated with an F of 80 percent of F MSY or its proxy. When biomass falls below 50 percent of B MSY or its proxy, F declines linearly to 0 at 10 percent of B MSY or its proxy. The control rule sets ABC for a 3-year period, but allows ABC to vary year-to-year in response to projected changes in biomass. This rule specifies that the control rule can be revised via a framework adjustment if a quantitative assessment is not available, if projections are producing ABCs that are not justified or consistent with available information, or if the stock requires a rebuilding program.

The control rule explicitly accounts for herring as forage in the ecosystem by limiting F to 80 percent of F MSY when biomass is high and setting it at zero when biomass is low. It also generates an ABC consistent with specific criteria identified by the Council, including low variation in yield, low probability of the stock becoming overfished, low probability of a fishery shutdown, and catch limits set at a relatively high proportion of MSY. This control rule is intended to result in low variation in yield, low probability of a fishery shutdown, and low probability of overfishing. As a result, the Council anticipates that short-term negative economic impacts on participants in the herring or lobster fisheries, resulting from a reduced herring harvest in response to low herring biomass, may become a long-term economic benefit for industry participants. Relative to other control rules considered by the Council in Amendment 8, this control rule is designed to more effectively balance the goal and objectives of the Herring FMP, including managing the fishery at long-term sustainable levels, taking forage for predators into account to support the ocean ecosystem, and providing a biologically sustainable harvest as a source of revenue for fishing communities and bait for the lobster fishery.

Shortly before the Council took final action on Amendment 8, the 2018 stock assessment concluded that herring biomass was low, and the probability of overfishing and the stock becoming overfished was high. While not directly applicable to a long-term harvest policy, the Council noted that under herring's current condition of low biomass, setting catch more conservatively than status quo may increase the likelihood of stock growth and, in turn, have positive impacts on the herring fishery, predators, and predator fisheries.

In August 2020, the report for the 2020 herring stock assessment determined the stock is overfished, but not subject to overfishing. Spawning stock biomass (SSB) is estimated to have declined since 2014, and the 2019 SSB was estimated at 29 percent (77,883 metric tons (mt)) of the SSB necessary to support MSY (269,000 mt) resulting in a determination of overfished. F for herring harvested by mobile gear ( i.e., midwater trawl, purse seine, bottom trawl) has declined since 2010, was estimated to be 0.25 in 2019, and is well below the overfishing threshold (0.54) so the stock is not experiencing overfishing. Recruitment continues to be at historic lows, and in 2019 it was estimated at about 20 percent of median recruitment. On October 13, 2020, we notified the Council that the herring stock is overfished and requested it develop rebuilding measures.

This rule prohibits the use of midwater trawl gear inshore of 12 nautical miles (22 km) from the U.S./Canada border to the Rhode Island/Connecticut border and inshore of 20 nautical miles (37 km) off the east coast of Cape Cod. Specifically, federally permitted vessels are prohibited from using, deploying, or fishing with midwater trawl gear within the inshore midwater trawl restricted area located shoreward of the 12-nautical mile (22-km) territorial sea boundary from Canada to Connecticut and within 30-minute squares 114 and 99 off Cape Cod (Figure 1). Midwater trawl vessels are able to transit the inshore midwater trawl restricted gear area provided gear is stowed and not available for immediate use. This measure is in addition to the existing prohibition on midwater trawling for herring in Area 1A during June 1 through September 30.

The Council recommended the inshore midwater trawl restricted area to minimize local depletion and its associated user group conflict when midwater trawl vessels harvesting herring overlap with other user groups ( i.e., commercial fisheries, recreational fisheries, ecotourism) that rely on herring as forage and provide inshore conservation benefits. The Council focused this measure on vessels using midwater trawl gear to mitigate potential negative socioeconomic impacts on other user groups in response to short-duration, high-volume herring removals by midwater trawl gear and because midwater trawl vessels are relatively more mobile and capable of fishing in offshore areas than vessels using other gear types. Information to quantify the impact of midwater trawling on other user groups is scarce, so the amendment analyzed the degree of overlap between midwater trawl vessels and other user groups. The inshore midwater trawl restricted area incorporates areas with a high degree of overlap between midwater trawl vessels and other user groups throughout the year. Specifically, it incorporates the overlap with predator fisheries in the Gulf of Maine and southern New England throughout the year, as well as the overlap with ecotourism and the tuna fishery in Area 1A during the fall. While overlap with the midwater trawl vessels does not necessarily translate into direct negative biological impacts on predators, less overlap may reduce potential user conflicts, provided midwater trawl effort does not shift into other areas and generate additional overlap.

The Herring FMP specifies that herring research set-aside (RSA) can equal up to 3 percent of the sub-annual catch limit for a herring management area. This rule permits RSA compensation fishing using midwater trawl gear within the inshore midwater trawl restricted area. The Council recommended allowing RSA compensation fishing within the inshore midwater trawl restricted area to help ensure the RSA would be harvested and those funds would be available to support the projects awarded RSA. Vessels engaged in herring RSA compensation fishing typically operate as authorized by an exempted fishing permit (EFP) so they can request exemptions from certain regulations that would otherwise restrict herring harvest. While vessels are permitted to use midwater trawl gear within the inshore midwater trawl restricted area while RSA compensation fishing, it does not mean that compensations trips would be without restrictions. Terms and conditions of the EFP must be consistent with the Magnuson-Stevens Act, other applicable law, and the Herring FMP. Additionally, we would consider whether additional terms and conditions would be required for EFPs to ensure RSA compensation trips do not exacerbate the overlap between midwater trawl vessels and other user groups, consistent with the Herring FMP.

This rule specifies that the inshore midwater trawl restricted area or new closures to address localized depletion and/or user group conflict may be modified or implemented via framework adjustment. The list of framework provisions at § 648.206 already includes closed areas; this amendment adds the inshore midwater trawl restricted area to that list.

The Council's recommendation to prohibit midwater trawling in inshore areas is an allocation decision intended to balance the needs of user groups and provide conservation benefits. Consistent with objectives in the Herring FMP, the inshore midwater trawl restricted area is intended to facilitate an efficient, fair, and equitable accommodation of relevant social, economic, and ecological factors associated with achieving OY, in part by providing, to the extent practicable, controlled opportunities for participants in other New England and Mid-Atlantic fisheries. Because midwater trawl vessels historically harvested a larger percentage of herring than other gear types and are able to fish offshore, the Council recommended prohibiting them from inshore waters to help ensure herring was available inshore for other user groups and predators of herring. The inshore midwater trawl restricted area is designed to be reasonably large enough to address the overlap between midwater trawl vessels and other user groups and, ultimately, user group conflict in inshore waters while still providing midwater trawl vessels access to areas with fishing opportunities. This measure is likely to negatively impact the midwater trawl fleet, with potentially increased trip costs and lower annual catches, but on balance, the benefits to other user groups, such as potentially reduced trips costs, higher annual catches, and improved safety, outweigh the costs to midwater trawl vessels. The measure may also have biological benefits if moving midwater trawl vessels offshore minimizes catch of river herring and shad, reduces fishing pressure on the inshore component of the herring stock, and helps ensure herring are available to predators. Herring is currently assessed as one stock, but it likely has stock components. Reducing fishing pressure inshore would benefit an inshore stock component. Analyses in Amendment 8 estimate that in recent years approximately 30 percent of the midwater trawl fleet's annualized revenue came from within the inshore midwater trawl restricted area. Negative economic impacts on the midwater trawl fleet may be mitigated if the fleet is able to offset lost revenue from inshore areas with increased revenue from offshore areas. Herring catch limits are currently low, so the fishery has the capacity to harvest the OY. Recent midwater trawl landings (2007-2015) offshore of the inshore midwater trawl restricted area (19,302 mt) are higher than the OY for 2020 and 2021 (11,621 mt). In the longer term, the fishery will likely adapt to be able to harvest an increased OY, provided vessels are able to locate herring.

This rule establishes the following revision and clarifications to § 648.202(a) under the authority of section 305(d) to the Magnuson-Stevens Act, which provides that the Secretary of Commerce may promulgate regulations necessary to carry out an FMP or the Magnuson-Stevens Act.

First, this rule revises the title from “Purse Seine/Fixed Gear Only Area” to “Midwater Trawl Restricted Area.” Bottom trawl gear, in addition to purse seine and fixed gear, is permitted in the referenced area; only midwater trawl gear is prohibited in the area. This revision is a more accurate description of the referenced area and is necessary to clarify the intent of the regulation.

Second, this rule clarifies that the regulation applies only to all federally permitted vessels fishing for herring. The regulation currently applies midwater trawl gear restrictions to vessels fishing for herring. This clarification is necessary to specify that restrictions on fishing for herring with midwater trawl gear only apply to federally permitted vessels and do not apply to vessels with only a state herring permit fishing exclusively in state waters.

Third, the rule clarifies the conditions under which midwater trawl vessels may transit the “Midwater Trawl Restricted Area” described above. Current regulations specify that midwater trawl vessels with a limited access herring permit may transit Area 1A during June through September with midwater trawl gear on board, provided the gear is stowed and not available for immediate use. This rule clarifies that any federally permitted herring vessel may transit Area 1A during June through September, provided midwater trawl gear is stowed and not available for immediate use. The unnecessary addition of a limited access permit requirement to transit Area 1A was likely a byproduct of the impact analysis identifying the number of limited access vessels that would be affected by the prohibition of midwater trawling in Area 1A implemented in Amendment 1 to the Herring FMP.

This rule also revises § 648.200(b)(3) under the authority of section 305(d) to the Magnuson-Stevens Act. This revision changes the reference from “at” § 648.201(a) to “in” § 648.201(a) to be consistent with other regulatory references within § 648.200.

This rule implements necessary minor administrative changes under section 305(d) to the Magnuson-Stevens Act that were not described in the proposed rule. First, it corrects definitions in § 648.2. The definition for slippage in the Atlantic herring fishery was inadvertently removed from the regulations, and this rule restores it. This rule also moves the definition for observer or monitor to the correct alphabetic order.

Second, this rule corrects several weblinks in regulations describing monitoring coverage (§ 648.11). The Northeast Fisheries Science Center's Fishery Sampling Branch's website was recently revised and, as a result, several weblinks to monitoring resources specified in the final rule implementing the New England Industry-Funded Monitoring (IFM) Omnibus Amendment (85 FR 7414; February 7, 2020) are now outdated. This rule corrects those outdated weblinks.

Third, this rule corrects minor typographical errors in § 648.11 that were implemented in the final rule for the IFM Amendment.

We received 268 comment letters on the NOA and proposed rule: 160 from the general public; 38 from members of the fishing industry; 29 from members of the herring fishery; 19 from members of the recreational and charter party fisheries; 13 from environmental advocacy groups; and 9 from state or town governments. Of the 268 letters, a letter from the Pew Charitable Trusts (Pew) included 8,942 signatures, a letter from the Conservation Law Foundation (CLF) included 553 comments from the public, a letter from the National Audubon Society (NAS) included 3,970 signatures and 201 comments from the public, and a letter from Saving Seafood included 22 comments from members of the fishing industry.

Development of this amendment was contentious because stakeholders are polarized on the inshore midwater trawling prohibition to minimize user group conflict and, to a lesser extent, on the ABC control rule. Most of the commenters support the implementation of Amendment 8, including all state and town governments, all environmental advocacy groups, most recreational and charter party fisheries members, most of the general public, and some fishing industry members. Those commenters who do not support the implementation of Amendment 8 include most herring industry members, some fishing industry members, and some of the general public.

Comment 1: Some members of the herring industry assert that Amendment 8 is inconsistent with the Magnuson-Stevens Act, its National Standards, and the Herring FMP. They propose that current management measures, such as slippage consequence measures, coverage requirements, the seasonal prohibition on midwater trawling for herring in Area 1A, and catch caps, are more than sufficient to manage catch in the herring fishery. They caution that the cumulative impact of prohibiting midwater trawling inshore, low catch under the new ABC control rule, and existing restrictions was not fully analyzed in the final EIS (FEIS). They believe these cumulative restrictions threaten the loss of a year-round fishery, jeopardize continued participation in the fishery by harvesters and fishing communities, and negatively impact the bait supply for the lobster fishery.

Response: The Herring FMP is intended to provide, in part, controlled opportunities for participants in other New England and Mid-Atlantic fisheries. The inshore midwater trawl restricted area was developed to address issues of localized depletion and its associated user group conflict as described in the amendment's user group conflict problem statement. It is designed to support inshore fishing opportunities for a wide variety of fishing industry participants. The ABC control rule is designed to provide a long-term sustainable herring fishery and, similar to the inshore midwater trawl restricted area, the ABC control rule supports herring as forage for predators and other user groups. While measures such as slippage consequence measures, coverage requirements, and catch caps help manage herring catch, they were not developed explicitly to support opportunities for other user groups.

Herring are an important forage species in the Northeast U.S. shelf ecosystem and they are eaten by a wide variety of fish, marine mammals, and birds. Herring share the role of forage with other prey species ( e.g., sandlance, mackerels, squids, and hakes); the relative importance of herring as forage varies by predator and depends on whether other forage is available. Herring are important forage for Atlantic bluefin tuna, spiny dogfish, Atlantic cod, silver hake, and Atlantic striped bass, as well as seabirds ( e.g., Atlantic puffins and terns) and marine mammals ( e.g., baleen whales, toothed whales, and pinnipeds).

The amendment's FEIS analyzed the ecological and socioeconomic impacts of management measures on the herring fishery, the Atlantic mackerel fishery, and the lobster fishery, as well as predator fisheries and ecotourism. The FEIS also considered the impacts of these measures in concert with past, present, and reasonably foreseeable future actions. The FEIS concludes that short-term negative economic impacts on some fishery participants have the potential to become long-term economic benefits for all user groups. Negative impacts may be minimized for midwater trawl vessels if they are able to harvest herring offshore, other economical sources of bait are available for the lobster fishery, or the ABC control rule helps minimize the risk of the herring stock becoming overfished and subject to overfishing. The Council's consideration included the ecological and socioeconomic impacts of measures in Amendment 8, and recommended these measures to help ensure herring was available for predators and all user groups.

Section 6.1.1 of the FEIS describes how management measures are consistent with the Magnuson-Stevens Act and its National Standards. We determined these measures are consistent with the Magnuson-Stevens Act and its National Standards when we approved the amendment in November 2019. Our consideration of how measures are consistent with specific National Standards is further detailed in our responses to comments below.

Comment 2: Commenters support implementation of the inshore midwater trawl restricted area because they believe it will:

• Protect Atlantic herring and river herring from localized inshore depletion by industrial-scale fishing;

• Reduce user group conflict and support coastal economies and commercial and recreational business that rely on predators;

• Balance the needs of all stakeholders in inshore waters where stakeholder overlap is the greatest, without setting a precedent for prohibiting other types of trawling;

• Recognize the importance of herring to inshore users, including striped bass, tuna, and cod fisheries, as well as ecotourism by helping maintain a large forage biomass for predators and those predator fisheries ( e.g., striped bass, tuna, recreational and charter fisheries);

• Protect inshore waters from the impacts of midwater trawling and provide consistency with other countries that restrict midwater trawling;

• Decrease discarded catch of cod and haddock by midwater trawlers in inshore waters;

• Offer additional ecosystem protection to Stellwagen Bank;

• Protect discreet, localized aggregations of herring, as well as the ecosystem and coastal communities that rely on them; and

• Protect herring spawning areas, including spawning adults and eggs, especially off Cape Cod, to support recruitment.

A joint letter from CLF, NAS, Natural Resources Defense Council (NRDC), Pew, and Wild Oceans supports implementation of the inshore midwater trawl restricted area. The commenters explain the measure would reduce fishing pressure inshore, where predators need herring, and mitigate negative socioeconomic impacts of high-volume herring removals on other user groups. The commenters believe the inshore midwater trawl restricted area will have biological, ecological, and economic benefits and that it is consistent with the Magnuson-Stevens Act and National Standards.

The New England Purse Seiner's Alliance (NEPSA) supports the inshore midwater trawl restricted area because it believes the existing prohibition on midwater trawling in Area 1A during the summer helps protect herring and allows for a robust tuna fishery. NEPSA also asserts the prohibition clearly addresses the goals, objectives, and problem statement for the amendment and is consistent with the Magnuson-Stevens Act.

The Commonwealth of Massachusetts supports the inshore midwater trawl restricted area because it minimizes possible detrimental biological impacts on predators and associated socioeconomic impacts on other user groups that rely on herring as forage. It also supports using the overlap of midwater trawl activity and other user groups as the best available science to support prohibiting inshore midwater trawling.

The Nature Conservancy (TNC) commented that localized depletion, or taking fish faster than they can be replaced in a given area, is a significant biological concern for the herring resource, the predatory fish and birds that rely on herring as food, and other user groups that depend on the local availability of herring to support their business. TNC recognizes there is limited information linking localized depletion to the midwater trawl fishery, but it supports the Council's precautionary approach to address localized depletion and notes the inshore midwater trawl restricted area encompasses times and areas with a high degree of overlap between the midwater trawl fishery and other user groups.

While Lund's Fisheries generally opposes the inshore midwater trawl restricted area, it supports allowing midwater trawl RSA compensation fishing within the inshore midwater trawl restricted area to support fishery access to herring and mackerel.

Response: We acknowledge the commenters support for the inshore midwater trawl restricted area and concur that the measure is intended to ensure herring is available to minimize detrimental biological impacts on predators of herring and associated socioeconomic impacts on other user groups.

Comment 3: Several commenters support the inshore midwater trawl restricted area, but would prefer that the midwater trawl restricted area extend further offshore, either 25 (46 km) or 50 (93 km) nautical miles offshore, especially on Stellwagen Bank.

Response: We can only approve, disapprove, or partially approve Council-recommended measures; we cannot modify the inshore midwater trawl restricted area to extend further offshore. The Council considered alternatives that would have extended the midwater trawl restricted area further offshore but recommended a smaller inshore midwater trawl restricted area, so that the costs associated with the measure are commensurate with the benefits.

Comment 4: Some members of the herring industry assert the inshore midwater trawl restricted area is not consistent with the Magnuson-Stevens Act and applicable law for the following reasons:

• It will prevent the herring and mackerel fisheries from achieving OY on a short-term and continuing basis and will not result in a net benefit to the Nation (National Standard 1);

• The best available science does not indicate localized depletion, nor does it find a difference in fishery removals by midwater trawl vessels compared to purse seine vessels, and this measure makes no attempt to align the restricted area with associated analyses and is an illegitimate political compromise (National Standard 2);

• The allocation of fishing grounds is not fair or equitable and does not promote conservation (National Standard 4);

• It will impose economic inefficiencies on midwater trawl vessels, including longer, more expensive fishing trips, and no measure may have economic allocation as its sole purpose (National Standard 5);

• The benefits of restricting midwater trawling inshore do not outweigh the costs (National Standard 7);

• Restricting midwater trawling in inshore waters had no conservation benefit and does not minimize economic impacts (National Standard 8);

• Moving midwater trawl vessels offshore makes fishing trips potentially less safe (National Standard 10);

• Prohibiting midwater trawling inshore is arbitrary and capricious; and

• The amendment does not include a fishery impact statement or cumulative effects assessment.

Response: We disagree with these comments. The Council's development of the amendment considered the best available science to determine how best to achieve OY in this fishery, given this fishery's multiple commercial, recreational, and ecological interests. The inshore midwater trawl restricted area fairly and equitably allocates fishing opportunities to a wide variety of fishing industry participants in a manner that reasonably promotes conservation. The Council's consideration included a robust analysis and consideration of economic impacts on fishing communities, including recreational fishing, an efficient use of resources, and attempts to minimize costs and unnecessary duplication. Further, the Council weighed the costs and benefits of this measure on the various user groups and considered the effect of the measure on the safety of the fisheries participants.

The herring fishery is capable of achieving OY, both in the short term and on a continuing basis, with inshore harvest from purse seine and bottom trawl vessels and offshore harvest from midwater trawl vessels, consistent with National Standard 1. In the short term, herring catch limits are expected to remain very low (less than 10,000 mt), as the stock is experiencing historically low recruitment. If herring are available, the fishery has the capacity and opportunity to harvest the entire OY. In the longer term, the fishery will likely adapt to be able to harvest an increased OY, provided vessels are able to locate herring. While recent herring catches have largely come from within the inshore midwater trawl restricted area, midwater trawl vessels have historically caught the majority of their harvest offshore. Any inability to harvest the OY is more likely related to herring's reduced abundance, rather than the lack of inshore midwater trawling curtailing the fishery's capacity to harvest herring. Regarding the mackerel fishery, we do not expect the inshore midwater trawl restricted area to prevent the mackerel fishery from achieving OY because only 14 percent (925 mt) of recent mackerel midwater trawl landings (2007-2015) were harvested from within the restricted area.

The Magnuson-Stevens Act defines OY as the amount of fish that provides the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities. It also prescribes OY on the basis of the fishery's MSY, as reduced by relevant economic, social, or ecological factors. The Herring FMP's OY definition further requires, “taking into account the protection of marine ecosystems, including maintenance of a biomass that supports the ocean ecosystem, predator consumption of herring, and biologically sustainable human harvest. This includes recognition of the importance of Atlantic herring as one of many forage species of fish, marine mammals, and birds in the Northeast Region.” Relevant to the economic and social factors that apply to herring management are the impacts on the fisheries for predator fisheries ( e.g., groundfish, bluefin tuna, striped bass) and on ecotourism ( e.g., whale watching). Consistent with National Standard 1, the inshore midwater trawl restricted area helps limit concentrated removals of herring in inshore areas to acknowledge the importance of herring as forage in the ecosystem, support the businesses that depend on predators of herring, and provide the greatest overall benefit to the Nation.

The inshore midwater trawl restricted area was developed in response to the amendment's problem statement and is designed to help minimize user group conflict between midwater trawl vessels and other user groups. The Council's consideration of localized depletion ultimately included user group conflict to address stakeholders' concerns with localized depletion issues. The Council evaluated the impact of user group conflict and competing interests for how herring should be used. Consistent with National Standards 2 and 4, the inshore midwater trawl restricted area allocates fishing opportunities to a wide variety of user groups in a manner that promotes the conservation of herring for predators and is based on the best available science. The FEIS summarizes what is known about the role of herring as forage in the ecosystem, includes maps describing the footprint of the herring fishery as well as key predator fisheries, and analyzes the overlap between these fisheries to identify seasons and areas with the potential for user group conflict. The FEIS suggests the greatest amount of overlap between user groups occurs inshore throughout the year. Because midwater trawl vessels are more capable of fishing offshore than other user groups, the Council recommended prohibiting them from inshore waters to help ensure herring are available inshore for other users groups and predators of herring. The inshore midwater trawl restricted area has biological benefits if moving the midwater trawl fleet offshore minimizes catch of river herring and shad, reduces fishing pressure on the inshore component of the herring stock, and helps ensure herring are available to predators. For these reasons, the FEIS describes the inshore midwater trawl restricted area as a fair compromise that balances the competing needs of user groups.

This measure is likely to negatively impact the midwater trawl fleet, with potentially increased trip costs and, if less herring is available offshore, lower annual catches. The FEIS considers that some midwater trawl vessels may purchase new gear ( e.g., purse sein or bottom trawl) in order to access inshore areas, while others may opt to fish offshore, with potentially higher operational costs, and/or pursue other fisheries to make up for any lost herring revenue. The FEIS also estimates that this measure has the potential to reduce costs, such as searching and fishing time, for other fisheries and ecotourism companies that rely on herring predators, if it improves the inshore availability of herring. Therefore, consistent with National Standards 5, 7, 8, and 10, the benefits to other user groups, such as potentially reduced trips costs, higher annual catches, and improved safety, outweigh the costs to the midwater trawl vessels. While benefits to other user groups are difficult to specifically quantify until new measures are in place and data on their effects become available, we expect economic benefits would extend to the fishing communities that support these user groups as they will likely benefit from increased access to herring. Further, we expect that negative economic impacts on midwater trawl vessels can be minimized if vessels are able to increase their harvest of herring offshore. The Council considered other alternatives to minimize user group conflict, including prohibiting midwater trawling inshore of 25 nautical miles (46 km) and 50 nautical miles (93 km), but recommended a shallower midwater trawl restricted area instead as a way to more fairly and equitably balance the costs and benefits of the measure. To help mitigate the economic impact of the inshore midwater trawl restricted area and provide access for the mackerel fishery, the Council also recommended that RSA compensation fishing trips be exempt from the inshore prohibition on midwater trawling.

The inshore midwater trawl restricted area is not arbitrary and capricious. It is consistent with the problem statement developed by the Council to describe user group conflict and the objectives of the Herring FMP, including providing for full utilization of the OY and, to the extent practicable, controlled opportunities for participants in other New England and Mid-Atlantic fisheries. Because information to quantify the impact of midwater trawling on other user groups is limited, the FEIS analyzed the degree of overlap between the midwater trawl fleet and other user groups, consistent with National Standard 2. While overlap with the midwater trawl fishery does not necessarily translate into negative biological impacts on predators, less overlap may reduce potential user conflicts, provided midwater trawl effort does not shift into other areas. Additionally, the amendment's FEIS serves as the fishery impact statement, as it analyzes the conservation, economic, and social impacts of the management measures in Sections 4.1-4.8 in the FEIS, and the cumulative effects assessment is included in Section 4.9 of the FEIS.

Comment 5: Some commenters contend that user group conflict was excluded from Amendment 8 scoping and, therefore, it is not acceptable for user group conflict to be the basis for implementing an exclusion zone.

Response: On August 21, 2015 (80 FR 50825), the Council published a supplemental NOI announcing it was expanding the scope of Amendment 8 to consider localized depletion in inshore waters. The supplemental NOI defined localize depletion as harvesting more fish from an area than can be replaced within a given time period. It also explained the Council was seeking input from the interested public as to how to define, measure, and evaluate impacts, and minimize inshore, localized depletion in the herring fishery as part of Amendment 8. Public comment during the supplemental scoping made it clear that localized depletion concerns voiced by many stakeholders were not just related to the biological impacts of herring removals on the herring stock and on predators of herring. Public comment indicated that localized depletion should be defined to also include the user group conflicts that result from localized depletion and that the impacts of localized depletion should be measured and evaluated relative to competing uses for the herring resource and potentially negative economic impacts on businesses that rely on predators of herring. Defining the nature of localized depletion and identifying its impacts so that the Council could best address localized depletion was precisely the type of information sought by the supplemental NOI expanding the scope of Amendment 8.

Comment 6: Commenters oppose the inshore midwater trawl restricted area because of its inherent effect on the allocation of herring between user groups and believe:

• Fisheries regulations should not be popularity contests based on feelings and perceived user conflict instead of evidence and facts;

• Ocean access belongs to all and gear exclusions should not be based on prioritizing some user groups over others;

• Restricting inshore midwater trawling sets a precedent for excluding trawling in other areas, and may lead to exclusion zones in the squid fishery;

• Prohibiting inshore midwater trawling will increase bycatch and impacts to habitat, especially on herring spawning areas, should midwater trawl vessels switch to bottom trawl gear; and

• Removals by purse seine gear are similar in intensity to removals by midwater trawl gear, as both gear types target and harvest large schools of herring.

Response: Many of the Council's actions entail catch allocations between user groups. The National Standard Guidelines recognize that allocations of fishing privileges include assignment of ocean areas to different gear users that must comply with National Standard 4. The Council's prohibition on inshore midwater trawling complies with National Standard 4's requirement to be fair and equitable and reasonably calculated to promote conservation. The decision was based on fishing effort and socioeconomic data. Rather than being the result of its popularity with stakeholders as some claim, it balances the needs of user groups and is expected to also provide conservation benefits for inshore areas due to herring's important role in the ecosystem as forage. The Council focused on midwater trawl vessels because of their potential for high-volume catches, and they are relatively more mobile and capable of fishing in offshore areas than vessels using other gear types. While purse seine vessels are capable of high-volume catches, midwater trawl vessels have historically harvested more than 65 percent of the annual catch limit. The FEIS concludes that the inshore midwater trawl restricted area is expected to only have a neutral to low negative impact on habitat. Any effort shift from bottom trawl to midwater trawl gear is not expected to significantly impact habitat because of the existing seasonal and area restrictions on using small-mesh bottom trawl gear within the inshore restricted area and the previous determination that the herring fishery has only minimal and temporary impacts on essential fish habitat. We understand the commenters dislike the measure, but their concerns do not demonstrate the measure is inconsistent with applicable law.

Comment 7: Some commenters are concerned about the economic impact of the inshore midwater trawl restricted area on the herring, mackerel, and lobster fisheries, specifically because:

• Herring migrate through inshore waters and the midwater trawl fleet needs flexibility to be able to harvest herring where it is available;

• Losing midwater trawl access to inshore areas will have negative economic impacts on fishing vessels, the businesses and communities that support them, and availability and price of bait for the lobster fishery;

• The restricted area includes mackerel fishing grounds and vessels rely on higher value mackerel to supplement herring revenue;

• Amendment estimates a 30-percent reduction in revenue, but because the majority of herring and mackerel are caught in inshore waters, it would be more like a 70-percent reduction in revenue; and

• Nearly all recent midwater trawl catches have come from the inshore restricted area and vessels will not be able to recoup lost revenue offshore because environmental conditions in Area 3 have not been suitable for catching herring.

Response: The amendment's FEIS includes an economic analysis of the potential impacts of prohibiting inshore midwater trawling. Based on data showing that midwater trawl vessels historically harvested the majority of their catch offshore of the inshore midwater trawl restricted area, the FEIS estimates 30 percent of midwater trawl revenue came from within the inshore restricted area. While economic impacts on the herring, mackerel, and lobster fisheries are expected to be low negative to negative, the impacts on predator fisheries and ecotourism are described as uncertain to low positive. Negative economic impacts may be minimized if midwater trawlers can harvest herring and mackerel offshore and the lobster fishery can use alternatives to herring for bait, such as menhaden, redfish, and skates. In the short term, the availability of herring to the fishery may be affected by the historically low recruitment and overfished stock status. But longer term, as the stock rebuilds, the Council expects midwater trawl vessels may once again be able to harvest the majority of their catch offshore.

Comment 8: Some commenters caution that the inshore midwater trawl restricted area, covering a large area and effective year-round, is inconsistent with the problem identified in the amendment and ignores the user group overlap analysis. They also express concern that the amendment's FEIS does not acknowledge that the measure is a herring allocation among fleets, incorrectly identifies the inshore midwater trawl restricted area as a compromise between competing interests, and does not reasonably consider the impacts of an effort shift if midwater trawl vessels begin using bottom trawl gear.

Response: We disagree. As previously described, the inshore midwater trawl restricted area allocates fishing opportunities to a wide variety of user groups in a manner that promotes the conservation of herring for predators and is based on the best available science on the overlap between user groups. The FEIS acknowledges the inshore midwater trawl restricted area is an allocation of fishing opportunities between different user groups. Because the Council designed the measures to help limit concentrated removals of herring in inshore areas to allow for herring as forage in the ecosystem and support businesses that depend on predators of herring, the FEIS correctly describes the measure as a fair compromise that balances the competing needs of user groups. The FEIS recognizes the potential for an effort shift from midwater to bottom trawl gear, and acknowledges that biological benefits and socioeconomic benefits to other user groups may be minimized if midwater trawl vessels continue to fish inshore with bottom trawl gear. Whether midwater trawl vessels convert to bottom trawl gear will likely depend on several factors, such as the cost of converting, market demands, and the availability of herring offshore. In Area 1A, herring is only available for harvest June through December and is more frequently caught using purse seine gear than bottom trawl gear. Additionally, the states of Maine, New Hampshire, and Massachusetts implement weekly landings limits that may deter a midwater trawl vessel from converting to bottom trawl gear to fish in Area 1A. Given time and area restrictions on using small-mesh bottom trawl gear in Management Areas 1B and 3, the FEIS states that herring vessels are unlikely to substantially expand the use of bottom trawl gear in those areas, with the exception that they may try to access the western portion of the Raised Footrope Exemption Area from September to December.

Comment 9: Some commenters assert the amendment does not consider the impact of restricting fishing inshore in combination with the loss of fishing grounds due to future offshore wind development.

Response: During the development of Amendment 8, there were no offshore wind projects in place or construction and operation plans (COPs) made public for any of the herring management areas. While COPs for South Fork Wind Farm were made public in June 2018, the COPs for Vineyard Wind and Bay State Wind were made public in October 2018 and March 2019, respectively, after the Council adopted final measures in Amendment 8 at its September 2018 meeting. The FEIS qualitatively considers the impacts of offshore wind projects, along with environmental and other non-fishing related activities, as part of the cumulative effects assessment (Section 4.9). It concludes that the direct and indirect effects of the management measures in Amendment 8 considered in combination with all other actions ( i.e., past, present, and reasonably foreseeable future actions), should yield non-significant low positive impacts on human communities. Without wind projects being in place or COPs made public, quantitatively evaluating the impacts of offshore wind projects in combination with measures considered in Amendment 8 would have been too speculative.

Comment 10: Commenters support implementation of the ABC control rule because they believe it will:

• Balance the goals and objectives of the Herring FMP, including long-term, biologically-sustainable harvest, accounting for forage, and sustainable source of fishing revenue;

• Better account for forage at times of high biomass while continuing to safeguard the herring fishery during times of lower biomass;

• Provide forage for fish, marine mammals, and seabirds;

• Better align with ecosystem-based management;

• Support ecosystem health and the economies of coastal communities;

• Help reduce inconsistent and unpredictable fishing to ensure a steady supply of bait for the lobster fishery; and

• Help ensure the long-term viability of herring, its fishery, and the predators that rely on herring.

The joint letter from CLF, NAS, NRDC, Pew, and Wild Oceans explained that, initially, they advocated for a more conservative ABC control rule to maintain a forage base for economically valuable predator fisheries and the marine ecosystem. However, recognizing the economic implications of the 2018 herring stock assessment, indicating that herring biomass and recruitment were low, they now support the Council-recommended ABC control rule to provide valuable forage for fish, marine mammals, and seabirds, while allowing fishing opportunities and long-term benefits for the herring and lobster fisheries. They believe the control rule is consistent with the Herring FMP, Magnuson-Stevens Act, National Standard 1 guidelines for managing forage fish, and the best available science.

The TNC supports the ABC control rule given that the 2018 herring stock assessment concluded herring biomass is declining, stock recruitment is at a historic low, and the probability of the stock becoming overfished is high. It acknowledges that the ABC control rule may result in negative short-term economic impacts for participants in the herring and lobster fisheries, but believes it will provide long-term benefits for the marine ecosystem and the fisheries that depend on herring.

Response: We concur with the commenters' support for the ABC control rule.

Comment 11: Members of the herring industry stress that the need for a control rule is flawed because the 2018 stock assessment assumes no link between SSB and recruitment. They explain that recruitment in the herring fishery is environmentally driven and variable, that the recent experience of below average recruitment is unusual, and that small herring seen both inshore and offshore are part of a recruitment event independent of a new control rule.

Response: The Council recommended a new ABC control rule because it determined that the previous ABC control rule did not sufficiently provide for the role of herring in the ecosystem, especially when biomass is reduced and there is uncertainty in the assessment. While the assessment accounts for natural mortality, it is more risk averse to use an ABC control rule that reserves a portion of the catch for predators in the event estimates of biomass are uncertain. The inability of the 2018 stock assessment to quantitatively estimate the relationship between SSB and recruitment does not mean that the relationship does not exist. The FEIS acknowledges that environmental factors likely have a larger influence on herring recruitment and abundance trends than fishing, but concluded that reducing fishing pressure, when there is substantial uncertainty, is expected to prevent overfishing and optimize yield for the fishery in the long term.

Comment 12: Some members of the herring industry expressed concern with the management strategy evaluation (MSE) used to develop the ABC control rule, including the following:

• The MSE was rushed, stakeholder engagement and modeling were limited in scope and not used to their full potential, especially modeling of the spatial distribution of herring and predator/prey interactions;

• The analysis did not consider abundance, availability, or nutritional value of alternative prey species, nor did it consider the impact of herring abundance on the abundance of alternative prey species;

• The Council had no understanding of how this control rule would result in real-world specifications; and

• The analysis did not incorporate rebuilding measures that would be required if the stock is overfished, so the benefits of the more conservative control rules are illusory.

Response: The Council developed alternatives for a herring ABC control rule using an MSE. MSE is a decision-making tool that uses computer modeling to compare the performance of alternatives ( i.e., management strategies) under various scenarios to achieve multiple, competing objectives. Because we do not have a complete understanding of the ocean ecosystem and all the sources of uncertainty, MSEs are useful to evaluate how alternatives perform under different environmental conditions. The Council held two public workshops to generate stakeholder input to help identify objectives for the MSE analysis. Input generated by the workshops was considered by the Council and, for the most part, adopted and included in Amendment 8. The MSE used three models, a herring model, a predator model, and an economic model, to compare ABC control rule performance. The models simulated how well the ABC control rules achieved herring management objectives, such as biomass, yield, revenue, and predator considerations, under simulated environmental conditions related to herring growth, stock assessment bias, and productivity of herring. Results of the MSE informed the range of ABC control rule alternatives and impact analyses of those alternatives in Amendment 8.

Development of the control rule with an MSE was, despite unavoidable data gaps and modeling limitations, based on the best scientific information available. To ensure the MSE was sufficient for identifying and analyzing a range of ABC control rules, the Council arranged for an external peer review of the MSE. The reviewers recognized that a tremendous amount of work was completed in a rigorous manner under the time and resource constraints of the MSE. While the models were constrained by the availability of data, the reviewers agreed the three models used in the MSE were appropriate for evaluating ABC control rules in the context of herring's role as forage in the ecosystem. The model used for herring included scenarios where herring productivity was high, as well as low, to explicitly enable the Council to evaluate the impact of ABC control rules on real-world specifications given fluctuations in herring biomass. The commenters are correct that the model used for herring did not include rebuilding measures. However, rebuilding measures are not required to be effective until 2 years after a stock has been declared overfished. There are potential conservation benefits associated with conservative control rules, especially like the Council-recommended control rule that sets herring catch at zero when biomass is low, until rebuilding measures become effective. Overall, the reviewers concluded that the data, methods, and results of the MSE were sufficient for identifying and analyzing a range of ABC control rule alternatives and that the MSE represents the best available science for evaluating the performance of herring control rules and their potential impact on key predators.

Comment 13: Commenters oppose implementation of the ABC control rule because they believe:

• It is too precautionary, as evident by its 2-percent chance of overfishing in 2019 when only a 50-percent or less chance of overfishing is required under the Magnuson-Stevens Act;

• It is not appropriate for herring because it double counts predator needs and adds an additional forage buffer of at least 15 percent;

• It is not capable of explicitly accounting for herring's role as forage because many predators are generalists and consume a variety of prey species;

• Setting catch to zero when biomass is low does not account for herring as forage because herring's role as forage does not diminish as biomass diminishes;

• It would not have prevented the current situation of low herring biomass and recruitment, but it does ensure the economic impact of low herring biomass is more negative than necessary; and

• It lacks “exceptional circumstances” protocol to address scenarios with low biomass, especially when it would prohibit fishing.

Response: We disagree with these comments. The control rule was developed by the Council to reflect its harvest policy for herring and provide for a long-term sustainable herring fishery. It moderately reduces fishing mortality (80 percent of the rate that supports MSY reduced from 90 percent) when biomass is high, eliminates catch in response to low biomass (10 percent or less of the B MSY ), and takes into account herring's role as forage for predators. As described previously, an external peer review found the results of the MSE were sufficient for identifying and analyzing a range of ABC control rule alternatives and that the MSE represents the best available science for evaluating the performance of herring control rules and their potential impact on key predators. Similar to the inshore midwater trawl restricted area, the ABC control rule also considers impacts across user groups. The control rule modestly reduces the amount of catch available to the herring and lobster fisheries to support herring as forage for other user groups. Instead of an “exceptional circumstances” protocol to allow for fishing when biomass is very low, the Council recommended that catch be set at zero to help rebuild biomass and ensure herring is available to predators. The control rule is intended to produce a low variation in yield, low probability of a herring fishery shutdown, and low probability of overfishing. As a result, the Council anticipates that short-term negative economic impacts on participants in the herring, mackerel, or lobster fisheries resulting from a reduced herring harvest may become a long-term economic benefit for them and other user groups.

Comment 14: Some members of the herring industry argue for the continued use of the status quo control rule because it balances scientific uncertainty with stability for the fishery. They also caution the new control rule is not consistent with the Magnuson-Stevens Act because the FEIS did not indicate any benefit to predators, so the economic costs of the control rule outweigh the benefits.

Response: Currently, there is no ABC control rule for the Herring FMP. Interim control rules have been applied in the past, but the harvest policy has been temporary and the Council has considered different ABC options with each specifications action. The commenters' conclusion that the FEIS does not indicate any benefit to predators is incorrect. The FEIS holds that the Council-recommended ABC control rule is expected to have positive biological impacts on the herring stock and low positive biological impacts on herring predators. While the commenters are correct that the FEIS estimates minimal differences in short-term impacts on predator species across ABC control rule alternatives, the ability of the MSE's modeling to detect differences in predator metrics ( i.e., common tern productivity, bluefin tuna weight, spiny dogfish biomass) and marine mammals was limited by the amount and scale of available predator data. The FEIS notes that, in general, more herring left unfished in the ecosystem could have positive impacts on herring predators, despite that relatively small differences in overall ABC may not have measurable differences in overall impacts on herring predators because many predators are opportunistic. Additionally, the FEIS explains that using ABC control rules that reduce fishing mortality at lower biomass levels would have more long-term positive benefits on predators, compared to control rules that allow higher fishing mortalities (status quo).

In addition to providing for herring's role as forage in the ecosystem, the control rule is also intended to provide for a sustained participation of fishing communities that depend on herring. Information about the importance of herring to affected fishery-related businesses and communities was included in the FEIS. The FEIS describes preventing overfishing and optimizing yield as expected long-term impacts of establishing an ABC control rule. It also concludes that these impacts are expected to benefit herring fishery-related business, herring fishing communities, and other communities that depend on predators of herring ( e.g., other commercial fisheries, recreational fisheries, ecotourism). In the short term, the FEIS explains there will likely be negative impacts on herring vessels, since catch levels would likely be greatly reduced until herring biomass and recruitment increase. But, it acknowledges negative short-term economic impacts are expected under all the control rule alternatives, including status quo, based on low projected herring biomass for the next several years. Therefore, because the potential benefits, biological as well as socioeconomic, are commensurate with potential costs, we determined the ABC control rule is consistent with the Magnuson-Stevens Act.

Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the National Marine Fisheries Service (NMFS) Assistant Administrator has determined that this final rule is consistent with Amendment 8 to the Herring FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

NMFS is also implementing regulations in this rule that are necessary to carry out any fishery management plan or amendment pursuant to section 305(d) of the Magnuson-Stevens Act, which provides that the Secretary of Commerce may promulgate regulations necessary to carry out a FMP or the Magnuson-Stevens Act.

This final rule has been determined to be not significant for purposes of Executive Order (E.O.) 12866.

This final rule is not an E.O. 13771 regulatory action because this action is not significant under E.O. 12866.

This final rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

The Council prepared an FEIS for Amendment 8 to the Herring FMP. We filed the FEIS with the Environmental Protection Agency on August 12, 2019. A notice of availability for the FEIS was published in the Federal Register on August 16, 2019 (84 FR 41988). The FEIS describes the impacts of the measures on the environment. This amendment establishes a herring ABC control rule and prohibits the use of midwater trawl gear in inshore waters from Canada to Connecticut. The biological impact of the ABC control rule on the herring resource is expected to be positive. However, other factors, such as environmental conditions, may have an even greater influence on herring biomass and could affect the stock regardless of the control rule. Short-term revenue reductions are expected as a result of the ABC control rule likely resulting in negative economic impacts on the herring fishery, with ripple effects on the communities involved in the Atlantic mackerel and lobster fisheries. These negative economic impacts are expected to be exacerbated by the low herring biomass and recruitment identified in the 2020 stock assessment. In the long term, fishing under a control rule that ensures continued, sustainable harvest of the herring resource is expected to benefit the herring fishery and its communities, as well as indirectly benefiting fisheries that rely on herring as forage in the ecosystem. The biological impacts of prohibiting midwater trawling in inshore areas on the herring resource are expected to be neutral to low positive if the measure prevents the fishery from harvesting the annual catch limit (ACL) or reduces fishing pressure on the inshore stock component. However, in the short term, the ACL is expected to be low, so the fishery is expected to be able to harvest the ACL. The biological impacts of prohibiting trawling on non-target and protected species are somewhat uncertain due to unknown effort shifts. Midwater trawl effort may move offshore or some vessels may decide to change gear type in order to continue fishing inshore. The socioeconomic impacts are expected to be negative for the midwater trawl fleet and associated fishing communities. The gear prohibition is estimated to impact about 30 percent of total revenue for midwater water trawl vessels. Some of this revenue may be recovered by fishing in offshore areas, but trips costs will be higher. The socioeconomic impacts of the gear prohibition on predator fisheries and ecotourism industries are expected to be potentially low positive. This ecosystem is complex and the linkages between herring and predators are complex: Having less fishing pressure in one area may not necessarily mean there are positive impacts on a predator that spends time in that area, as well as other areas. Potential negative impacts associated with user conflicts in these areas are expected to be lower. However, some effort will shift so there could be increased conflicts in other areas and seasons that do not exist now. In approving Amendment 8 on November 19, 2019, NMFS issued a Record of Decision (ROD) identifying the selected alternative. A copy of the ROD is available from NMFS (see FOR FURTHER INFORMATION CONTACT ).

We prepared a final regulatory flexibility analysis (FRFA) in support of this action. The FRFA incorporates the initial RFA (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, our responses to those comments, and a summary of the analyses completed in support of this action. A description of why this action was considered, the objectives of, and the legal basis for this rule is contained in in the preamble to the proposed and this final rule, and is not repeated here. All of the documents that constitute the FRFA and a copy of the EIS/RIR/IRFA are available upon request (see ADDRESSES ) or via the internet at: http://www.nefmc.org.

We received 268 comment letters on the NOA and proposed rule. Those comments, and our responses, are contained in the Comments and Responses section of this final rule and are not repeated here. Comments 1, 2, 4, 7, 9, 13, and 14 discussed the economic impacts of the measures, but did not directly comment on the IRFA. All revisions and clarifications to the proposed rule, as well as the rationale for those revisions, are described in Revisions and Additional Clarifications to the Proposed Rule section of this final rule and are not repeated here.

Effective July 1, 2016, NMFS established a small business size standard of $11 million in annual gross receipts for all businesses primarily engaged in the commercial fishing industry for RFA compliance purposes only (80 FR 81194, December 29, 2015). A commercial fishing business is classified as a small business if it is independently owned and operated, is not dominant in its field of operation, and has combined annual receipts not in excess of $11 million.

This action affects all permitted herring vessels. Therefore, the direct regulated entity is a firm that owns at least one herring permit. There are many firms that hold an open-access Category D herring permit. Unlike open-access Category E herring permit holders, Category D permit holding firms harvest only a small fraction of herring and do not typically use midwater trawl gear so they are minimally affected by the regulations. Category E permit holding firms, however, are affected by the regulations because they have a higher possession limit (20,000 lb (9,072 kg) versus 6,600 lb (2,994 kg)) and are more likely to use midwater trawl gear.

As of June 1, 2018, there were 862 firms (852 small) that held at least 1 herring permit. There were 126 (123 small) firms that were active in the herring fishery ( i.e., having landed herring in 2017) and held at least 1 herring permit. There were 101 (94 small) firms that held at least 1 limited access (Categories A, B, C) herring permit or a Category E open access herring permit. There were 53 (50 small) firms that held a limited access or Category E herring permit and were active in the herring fishery. Table 1 characterizes “gross receipts” and “herring receipts” for firms that held a limited access or Category E open access herring permit. Table 2 characterizes “gross receipts” and “herring receipts” for firms that held a limited access or Category E open access herring permit and were active in the herring fishery. In both tables, the small entities are further characterized by gear type to facilitate comparisons. There are fewer than three large entities that use midwater trawl gear, so the description of the large entities is not disaggregated to gear type to preserve confidentiality under the Magnuson-Stevens Act. Table 3 characterizes “gross receipts” and “herring receipts” for firms that held a herring permit and Table 4 characterizes “gross receipts” and “herring receipts” for firms that held a herring permit and were active in the herring fishery. Tables 3 and 4 include firms with Category D open access herring permits that would be minimally impacted by this action.

This action contains no new collection-of-information, reporting, or recordkeeping requirements.

This action does not duplicate, overlap, or conflict with any other Federal rules.

Recognizing the potential economic impact of this amendment, the Council recommended measures that achieved the amendment goals while minimizing negative economic impacts on fishery participants.

Of all the ABC control rule alternatives considered by the Council, the Council recommended the control rule that would provide the second highest level of catch. This control rule was developed by the Council to reflect its harvest policy for herring and provide for a long-term sustainable herring fishery. It moderately reduces fishing mortality (80 percent of the rate that supports maximum sustainable yield reduced from 90 percent) when biomass is high, eliminates catch in response to low biomass (10 percent or less of the biomass to support maximum sustainable yield), and takes into account herring's role as forage for predators. As described previously, an external peer review found the results of the MSE were sufficient for identifying and analyzing a range of ABC control rule alternatives and that the MSE represents the best available science for evaluating the performance of herring control rules and their potential impact on key predators. Similar to the inshore midwater trawl restricted area, the ABC control rule also considers impacts across user groups. The control rule modestly reduces the amount of catch available to the herring and lobster fisheries to support herring as forage for other user groups. The Council anticipates that short-term negative economic impacts on participants in the herring, mackerel, or lobster fisheries resulting from a reduced herring harvest may become a long-term economic benefit for other user groups. Especially if the control rule performs as recommended by the Council, with a low variation in yield, low probability of a herring fishery shutdown, and low probability of overfishing.

The Council developed the inshore midwater trawl restricted area consistent with the amendment's problem statement and the FEIS's overlap analysis. The Council considered other alternatives to minimize user group conflict, including prohibiting midwater trawling inshore of 25 nautical miles (46 km) and 50 nautical miles (93 km), but recommended a shallower midwater trawl restricted area instead as a way to more fairly and equitably balance the costs and benefits of the measure. Additionally, to help mitigate the economic impact of the inshore midwater trawl restricted area and provide access for the mackerel fishery, the Council also recommended that RSA compensation fishing trips would be exempt from the prohibition on inshore midwater trawling.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a fishery bulletin that serves as a small entity compliance guide was prepared. Copies of this final rule are available from the Greater Atlantic Regional Fisheries Office (GARFO), and the fishery bulletin ( i.e., compliance guide) will be sent to all holders of permits for the herring fishery. The fishery bulletin and this final rule will be posted on the GARFO website.

For the reasons set out in the preamble, 50 CFR part 648 is amended as follows: