The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Bell Model 205B helicopters with a T/R blade P/N 212-010-750-009 or 212-010-750-105 installed. The NPRM published in the Federal Register on March 25, 2020 (85 FR 16916). Flight testing and fatigue analysis by Bell indicated that these part-numbered T/R blades sustain greater loads when installed on Bell Model 205B helicopters compared to their use on other model helicopters. In the NPRM, the FAA proposed to require, before further flight, reducing the life limit of each affected T/R blade from 5,000 hours time-in-service (TIS) to 2,500 hours TIS; re-identifying the T/R blade P/N on its data plate by vibro-etching to change the last three digits of the existing P/N; creating a component history card or equivalent record; and revising the Airworthiness Limitations section of the existing maintenance manual for your helicopter to annotate the new P/N and revised life limit. Finally, the NPRM proposed to prohibit installing any affected T/R blade that has not met the AD requirements.

The FAA issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 by adding an AD that would apply to Bell Model 205B helicopters. The SNPRM published in the Federal Register on December 8, 2020 (85 FR 78977). The SNPRM was prompted by a comment received on the NPRM requesting that the applicability paragraph be updated to include newly identified T/R blade part numbers. The FAA determined the NPRM should be revised to include the additional part-numbered T/R blades and the re-identification and life limit requirements for those additional part-numbered T/R blades.

Since the FAA issued the NPRM, Bell Helicopter Textron Inc., has changed its name to Bell Textron Inc. This final rule reflects that change and updates the contact information to obtain service documentation.

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

The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products.

The FAA reviewed Bell Helicopter Textron Alert Service Bulletin No. 205B-20-70, dated August 6, 2020, for Model 205B helicopters. This service information specifies reducing the life limit of T/R blade P/N 212-010-750-109, 212-010-750-111, 212-010-750-113, 212-010-750-117, 212-010-750-133, 212-010-750-135, 212-010-750-117FM, and 212-010-750-135FM to 2,500 hours time-in-service (TIS). This service information also specifies re-identifying certain T/R blade P/Ns by assigning a new dash number by vibro-etching a new P/N on the T/R blade data plate and annotating the historical record card.

The FAA also reviewed Bell Helicopter Textron Alert Service Bulletin No. 205B-98-27, dated June 1, 1998, for Model 205B helicopters. This service information specifies reducing the life limit of T/R blade P/N 212-010-750-009 and 212-010-750-105 to 2,500 hours TIS and assigning these T/R blades a new dash number by vibro-etching a new P/N on the T/R blade data plate and annotating the historical record card.

The FAA estimates that this AD affects approximately 2 helicopters of U.S. Registry. The FAA estimates that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour.

Determining the total hours TIS of a T/R blade, re-identifying the P/N, and updating the helicopter records takes about 1 work-hour for each T/R blade, for an estimated cost of $170 per helicopter and $340 for the U.S fleet.

Replacing a T/R blade takes about 8 work-hours and parts cost about $29,110 for an estimated cost of $29,790 per T/R blade.

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

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

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

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

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

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

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

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

On February 23, 2021, the FAA issued Emergency AD 2021-05-51 (the emergency AD), which requires performing a TAI inspection for cracks in certain 1st-stage LPC blades and removal of those blades that fail inspection. The FAA sent the emergency AD to all known U.S. owners and operators of these engines. That action was prompted by the in-flight failure of a 1st-stage LPC blade on a PW4077 model turbofan engine resulting in an engine fire during flight. This condition, if not addressed, could result in 1st-stage LPC blade release, damage to the engine, and damage to the airplane.

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

The FAA reviewed Pratt & Whitney Alert Service Bulletin (ASB) PW4G-112-A72-268, Revision No. 7, dated September 6, 2018. The ASB describes procedures for performing TAI inspections of 1st-stage LPC blades.

This AD requires performing a TAI inspection for cracks in certain 1st-stage LPC blades and removal of those blades that fail inspection.

The FAA considers this AD to be an interim action. The FAA anticipates that further AD action will follow.

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

An unsafe condition exists that required the immediate adoption of Emergency AD 2021-05-51, issued on February 23, 2021, to all known U.S. owners and operators of these engines. The FAA found that the risk to the flying public justified waiving notice and comment prior to adoption of this rule. On February 20, 2021, a United Airlines Boeing Model 777-222 airplane, equipped with two PW4077 model turbofan engines, on a flight from Denver, Colorado to Honolulu, Hawaii, experienced a 1st-stage LPC blade failure on the number 2 engine. This engine failure resulted in the separation of the fan inlet and cowling from the airplane, an engine fire, and damage to the airplane. The airplane was forced to return to the airport of departure. The unsafe condition, caused by the failure of the 1st-stage LPC blade, could result in 1st-stage LPC blade release, damage to the engine, and damage to the airplane.

The FAA considers inspection and removal of those blades that fail inspection to be an urgent safety issue. Inspection of the 1st-stage LPC blade for cracks must be accomplished before further flight after the effective date of this AD. These conditions still exist, therefore, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

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

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include the docket number FAA-2021-0136 and Project Identifier AD-2021-00188-E at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Carol Nguyen, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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

The FAA estimates that this AD affects 104 engines installed on airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA published a final rule in the Federal Register (86 FR 6243; January 21, 2021) for FR Doc. 2021-01019 amending the Class D and Class E airspace and revoking the Class E airspace designated as an extension to Class D and Class E surface areas at Muskegon County Airport, Muskegon, MI. Subsequent to publication, the FAA identified that word “Airport” was inadvertently omitted from the Class E surface area airspace legal description for Muskegon County Airport. This action corrects that error.

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

Accordingly, pursuant to the authority delegated to me, Amendment of Class D and Class E Airspace and Revocation of Class E Airspace; Muskegon, MI, published in the Federal Register of January 21, 2021 (86 FR 6243), FR Doc. 2021-01019, is corrected as follows:

FAA published FR Doc. 2021-02066, at 86 FR 10804, on February 23, 2021. It inadvertently re-published the same document as FR Doc. 2021-03879, at 86 FR 11859, on March 1, 2021. Therefore, FAA is withdrawing the second, duplicate document.

A copy of the “Streamlined Launch and Reentry License Requirements” notice of proposed rulemaking (NPRM) (84 FR 15296, April 15, 2019), all comments received, the final rule, and all background material may be viewed online at http://www.regulations.gov using the docket number listed above. A copy of this final rule will also be placed in the docket. Electronic retrieval help and guidelines are available on the website. It is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded from the Office of the Federal Register's website at http://www.ofr.gov and the Government Publishing Office's website at http://www.gpo.gov.

On January 20, 2021, the Assistant to the President and Chief of Staff issued a memorandum titled, “Regulatory Freeze Pending Review.” The memorandum requested that the heads of executive departments and agencies (agencies) take steps to ensure that the President's appointees or designees have the opportunity to review any new or pending rules. With respect to rules published in the Federal Register , but not yet effective, the memorandum asked that agencies consider postponing the rules' effective dates for 60 days from the date of the memorandum ( i.e., March 21, 2021) for the purpose of reviewing any questions of fact, law, and policy the rules may raise.

In accordance with this direction, the FAA has decided to delay the March 10, 2021 effective date of the final rule, titled “Streamlined Launch and Reentry License Requirements” (RIN 2120-AL17), until March 21, 2021. This final rule will streamline and increase flexibility in the FAA's commercial space launch and reentry regulations, and remove obsolete requirements It will also consolidate and revise multiple regulatory parts and apply a single set of licensing and safety regulations across several types of operations and vehicles. Finally, the rule will describe the requirements to obtain a vehicle operator license, the safety requirements, and the terms and conditions of a vehicle operator license.

The delay in the rule's effective date will afford the President's appointees or designees an opportunity to review the rule and will allow for consideration of any questions of fact, law, or policy that the rule may raise before it becomes effective.

Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the FAA generally offers interested parties the opportunity to comment on proposed regulations and publishes rules not less than 30 days before their effective dates. However, the APA provides that an agency is not required to conduct notice-and-comment rulemaking or delay effective dates when the agency, for good cause, finds that the requirement is impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 553(b)(B) and (d)(3)). There is good cause to waive both of these requirements here as they are impracticable. A delay in the effective date of the final rule, titled “Streamlined Launch and Reentry License Requirements,” is necessary for the President's appointees and designees to have adequate time to review the rule before it takes effect, and neither the notice and comment process nor the delayed effective date could be implemented in time to allow for this review.

Table of Contents I. Background Information II. Comments and Immediate Effective Date III. Interim Final Rule A. Background on the ECIP B. Overview of the Interim Final Rule 1. Restrictions on Compensation 2. Restrictions on Dividends, Share Buybacks, and Other Capital Distributions IV. Regulatory Analyses A. Administrative Procedure Act B. National Environmental Policy Act C. Paperwork Reduction Act D. Regulatory Flexibility Act E. Regulatory Planning and Review F. Executive Order 13132 G. Congressional Review Act I. Background Information

On December 27, 2020, the Consolidated Appropriations Act, 2021 (Pub. L. 116-260), was signed into law. It added Section 104A of the Community Development Banking and Financial Institutions Act of 1994 (the Act) (12 U.S.C. 4701 et seq. ), which was enacted as part of the Riegle Community Development and Regulatory Improvement Act of 1994 (Pub. L. 103-325). Section 104A authorizes the Secretary of the Treasury to establish the Emergency Capital Investment Program (ECIP or Program) to make investments in low- and moderate-income community financial institutions. These investments are to support the efforts of low- and moderate-income community financial institutions to, among other things, provide loans, grants, and forbearance for small businesses, minority-owned businesses, and consumers, especially in low-income and underserved communities, including persistent poverty counties, which may be disproportionately impacted by the economic effects of the COVID-19 pandemic.

Under Section 104A(h) of the Act, the Department of the Treasury (Treasury) must issue rules setting restrictions on executive compensation, share buybacks, and dividend payments for recipients of capital investments under ECIP. This rulemaking establishes those restrictions, which are described in section III below.

ECIP is intended to be used to make investments in low- and moderate-income community financial institutions expeditiously. 1 Section 104A(h) of the Act requires Treasury to issue rules no later than 30 days after the statute's effective date that set restrictions on executive compensation, share buybacks, and dividend payments for recipients of capital investments under ECIP. This legislative mandate, along with the dramatic and ongoing effects of the COVID-19 pandemic—the public health crisis, continuing closures of small businesses and minority-owned businesses, and heightened consumer unemployment, especially in low-income and underserved communities—provides good cause for Treasury to issue this interim final rule without advance notice and public comment and to dispense with the 30-day delayed effective date provided in the Administrative Procedure Act (5 U.S.C. 553). The immediate effective date of this interim final rule will benefit low- and moderate-income community financial institutions, as well as the communities served by such institutions, by allowing low- and moderate-income community financial institutions to expeditiously apply for capital investments with a full understanding of the executive compensation, share buyback, and dividend payment restrictions that will apply to participants in the Program. Otherwise, potential recipients of capital investments under ECIP could decide not to participate in the Program or to delay their applications for a material period of time pending the establishment of these requirements, which would reduce or delay the provision of much-needed assistance to communities that have suffered economic impairment due to the COVID-19 pandemic. Although this interim final rule is effective immediately, comments are solicited from the public on all aspects of the interim final rule. Comments must be submitted on or before April 8, 2021. Treasury will consider these comments and the need for making any revisions as a result of these comments.

The purpose of ECIP is to support the efforts of low- and moderate-income community financial institutions to, among other things, provide loans, grants, and forbearance for small businesses, minority-owned businesses, and consumers, especially in low-income and underserved communities, including persistent poverty counties, which may be disproportionately impacted by the economic effects of the COVID-19 pandemic. 2 To support these objectives, the Act makes up to $9 billion available to Treasury to make capital investments in minority depository institutions and community development financial institutions that are (1) insured depository institutions that are not controlled by eligible bank holding companies or eligible savings and loan holding companies, (2) bank holding companies, (3) savings and loan holding companies, or (4) federally insured credit unions. Certain additional eligibility criteria apply, including a requirement for applicants to provide Treasury with an investment and lending plan that provides certain specified information concerning the applicant's lending history and plans. 3

A community development financial institution or minority depository institution that submits an application and is selected to participate in the Program (ECIP recipient) will receive a capital investment from Treasury. 4 5 Consistent with statutory requirements, the investment by Treasury will take the form of preferred stock, except in cases where Treasury determines that an institution cannot feasibly issue preferred stock, Treasury may purchase subordinated debt instruments. 6 The statute sets forth certain economic terms of the capital investments under ECIP  7 and limitations on the amount of capital investments Treasury may purchase from individual institutions. 8 In addition, the statute prohibits institutions with certain types of conflicts of interest from participating in ECIP. 9 Treasury's authority to make new capital investments in ECIP will end six months after the date on which the national emergency concerning the COVID-19 outbreak declared by the President on March 13, 2020 under the National Emergencies Act (50 U.S.C. 1601 et seq. ) terminates.

This interim final rule establishes restrictions on executive compensation, share buybacks, and dividend payments, as required by the Act. In developing these restrictions, Treasury has considered two primary objectives. First, these restrictions should seek to promote the integrity of ECIP by ensuring that the funds provided under the Program are used to provide loans, grants, and forbearance for small businesses, minority-owned businesses, and consumers, especially in low-income and underserved communities. Second, the restrictions generally should seek to encourage a large number of minority depository institutions and community development financial institutions to participate in ECIP, because the Program will have the most beneficial impact on the intended communities if a broad range of institutions participate in the Program.

The restrictions under this interim final rule generally apply to an ECIP recipient during the “ECIP period,” defined as the period from the date the ECIP makes its investment until the earliest of (i) the date on which the ECIP recipient has fully redeemed or repaid the capital investment received under ECIP; (ii) the date on which the capital investment the ECIP recipient received under ECIP is no longer held, in full or in part, by Treasury or a Treasury affiliate, or a custodian, trustee, or agent acting on behalf of Treasury or a Treasury affiliate, and (iii) the date that is ten years after the ECIP investment date. The restrictions apply to the ECIP recipient on a consolidated basis. Treasury anticipates that the ECIP period will provide sufficient time to ensure that ECIP investments are deployed in a manner that supports the statutory objectives. Accordingly, the requirements of the interim final rule will cease to apply when the ECIP investment is no longer held by Treasury or an entity established by Treasury (Treasury affiliate).

The restrictions on executive compensation under the interim final rule include (i) a requirement to ensure that the total compensation paid to senior executive officers is appropriate and not excessive; (ii) a restriction on severance pay for an ECIP recipient's senior executive officers if the ECIP recipient is in troubled condition; and (iii) a requirement to adopt policies and procedures prohibiting excessive or luxury expenditures (as defined below). Each of these compensation-related restrictions is intended to help ensure that the proceeds of ECIP investments have the effect intended by Section 104A of the Act and are not to fund excessive compensation for ECIP recipients' executives.

The restrictions on excess compensation apply to total compensation, which is defined as all compensation, other than any severance payment, provided by an ECIP recipient to an officer or employee, including salary, wages, bonuses, awards of stock, deferred compensation, and other financial benefits.

A “senior executive officer” means an ECIP recipient's president, any vice president in charge of a principal business unit division or function (such as sales, administration, or finance), any other officer who performs a policy making function, or any other person who performs similar policy making functions.

Under the interim final rule, an ECIP recipient is required to ensure that the total compensation paid to its senior executive officers is appropriate and not excessive. Unless informed otherwise by Treasury, an ECIP recipient is considered to have satisfied the requirements regarding excessive executive compensation under the interim final rule if it maintains compliance with the guidelines or standards established by its primary Federal regulator that address excessive compensation, corporate practices, and operations. Specifically, ECIP recipients that are insured depository institutions are subject to the Interagency Guidelines Establishing Standards for Safety and Soundness as issued by the appropriate Federal banking agency for the particular ECIP recipient. 10 Bank holding companies and savings and loan holding companies are required to maintain compliance with corporate practice  11 and operations requirements  12 issued by the Board of Governors of the Federal Reserve System (Federal Reserve Board), and, under the interim final rule, to ensure their subsidiary insured depository institutions adopt and maintain policies and procedures that are consistent with the applicable guidelines or standards established by their primary Federal regulators that address excessive compensation. In addition, federally insured credit unions must maintain compliance with the requirements on compensation and benefits for federally insured credit unions as issued by the National Credit Union Administration (NCUA). 13 Treasury reserves the authority to take action as necessary to address potential anti-evasion concerns relating to the interim final rule's requirements for ECIP participants.

Under the interim final rule, an ECIP recipient is prohibited from making excessive severance payments to a senior executive officer. Severance pay is defined to include all types of cash payments, benefits, and other amounts paid or provided in connection with an individual's termination of employment, except for payment for services performed or benefits that were accrued prior to termination of employment or otherwise accrued with respect to services performed.

Unless informed otherwise by Treasury, an ECIP recipient that is an insured depository institution, bank holding company, or savings and loan holding company is considered to have satisfied the requirements regarding severance payments if it maintains compliance with the limits and prohibitions on the ability of insured depository institutions and their affiliated holding companies to enter into contracts to pay and to make golden parachute and indemnification payments to institution-affiliated parties, as issued by the FDIC. 14 The FDIC rules place restrictions on payments to institution-affiliated parties whenever an insured depository institution or depository institution holding company is in “troubled condition,” as determined by the appropriate Federal banking agency. An ECIP recipient that is not designated in troubled condition by the appropriate Federal banking agency during the ECIP period generally would not be subject to restrictions on severance payments under the interim final rule. Similarly, a federally insured credit union is considered to have satisfied the requirements regarding severance payments if it maintains compliance with the limits and prohibitions on the ability of federally insured credit unions to enter into contracts to pay and to make golden parachute and indemnification payments to institution-affiliated parties as issued by the NCUA. 15 This restriction is designed to align the requirements of the ECIP with existing standards applicable to ECIP recipients under regulations issued by Federal regulators.

Under the interim final rule, ECIP recipients are required to establish and maintain policies designed to eliminate excessive or luxury expenditures. The term “excessive or luxury expenditures” is defined as excessive expenditures on any of the following to the extent such expenditures are not reasonable expenditures for staff development, reasonable performance incentives, or other similar reasonable measures conducted in the normal course of the ECIP recipient's business operations: (1) Entertainment or events; (2) office and facility renovations; (3) aviation or other transportation services; (4) tax gross-ups ( i.e., reimbursement of taxes owed with respect to any compensation); and (5) other similar items, activities, or events for which the ECIP recipient may reasonably anticipate incurring expenses, or reimbursing an employee for incurring expenses. Capital investments, including investments in technology, equipment, and similar items that expand the long-term capability of an ECIP recipient to provide products and services to its customers and community are not excessive or luxury expenditures.

The interim final rule requires an ECIP recipient to adopt and maintain an “excessive or luxury expenditures policy” that sets forth written standards applicable to the ECIP recipient and its employees that address the five categories of expenses set forth in the definition of “excessive or luxury expenditures” and that are reasonably designed to eliminate excessive or luxury expenditures. The standards must (1) identify the types or categories of expenditures which are prohibited; (2) identify the types or categories of expenditures for which prior approval is required (which may include a threshold expenditure amount per item, activity, or event or a threshold expenditure amount per employee receiving the item or participating in the activity or event); (3) provide reasonable approval procedures for expenditures requiring prior approval; (4) require the ECIP recipient to deliver a certification, executed by two senior executive officers (one of which must be either the ECIP recipient's chief executive officer (or individual performing a similar function) (defined as the “principal executive officer”) or its chief financial officer (or individual performing a similar function) (defined as the “principal financial officer”) that the approval of any expenditure requiring the prior approval of any senior executive officer, any executive officer of a substantially similar level of responsibility, or the ECIP recipient's board of directors (or a committee of such board of directors) was properly obtained with respect to each such expenditure; (5) require the prompt internal reporting of violations to an appropriate person or persons identified in this policy; and (6) mandate accountability for adherence to the policy. The requirement to establish a policy regarding excessive or luxury expenditures is intended to promote the integrity of ECIP by ensuring that the funds provided under the Program are used to provide loans, grants, and forbearance, without restricting ECIP participants' discretion to establish policies and procedures that are tailored to meet the needs and business objectives of their respective organizations.

To facilitate compliance with this requirement, Treasury is making available to ECIP recipients a form of excessive or luxury expenditures policy in Appendix A to the interim final rule. An ECIP recipient may use this form to satisfy the requirement in the interim final rule to adopt and maintain an excessive or luxury expenditures policy. Alternatively, an ECIP recipient may use other forms or existing policies relating to excessive or luxury expenditures, but such other forms or policies must satisfy all the requirements of the interim final rule.

An ECIP recipient must obtain prior approval from Treasury before making any material change to the policies or procedures that it maintains for purposes of compliance with the compensation, severance pay and excessive or luxury expenditures requirements described in the preceding discussion. 16 A change to such policies or procedures will be considered material if the change is likely to have a negative effect on the financial condition of the ECIP recipient, limit the ability of the ECIP recipient to make payments under the terms of an ECIP instrument, or otherwise impair the ECIP recipient's ability to meet its obligations to Treasury under the Program. An ECIP recipient would bear the initial responsibility for determining whether a change in policy or procedures is material; however, Treasury would retain the authority to take enforcement as appropriate ( i.e., an ECIP recipient should not revise its compensation policy to permit or pay excessive compensation if its cash is insufficient to pay dividends on ECIP instruments). A request by an ECIP recipient to make a material change to its compensation, severance pay, or excessive or luxury expenditures policies or procedures must be submitted to Treasury in writing at least 30 days prior to the effective date of the policy change. The notice will be deemed approved 30 days after the ECIP submits the notice to Treasury unless prior to the expiration of the 30-day period Treasury (i) objects to the proposed change or (ii) notifies the ECIP recipient that additional time is required in order to better evaluate the impact of the proposed change to policy or procedures.

Treasury specifically solicits comments from members of the public concerning the following issues:

Question #1: Are the restrictions on compensation sufficiently tailored to facilitate the ECIP Program objectives without discouraging participation in the program?

Question #2: Are there other reasonable alternatives to the Program's excessive or luxury expenditures policy requirement that would be as effective in ensuring that funds provided under the Program are used to provide loans, grants, and forbearance, without restricting ECIP participant discretion to establish policies and procedures that are tailored to meet the needs and business objectives of their respective organizations?

Question #3: What additional guidance or clarification regarding the compensation and expenditure restrictions would help facilitate compliance with these restrictions and ensure that the restrictions are working as intended?

The restrictions on dividends, share buybacks, and other capital distributions under the interim final rule include two components. The first is a prohibition on discretionary dividends, share buybacks and other capital distributions on non-senior securities if an ECIP recipient has not (i) for preferred stock issued to Treasury, paid in full the dividends for the last completed dividend period, or (ii) for instruments issued to Treasury other than in the form of preferred stock, such as subordinated debt, paid all amounts due and payable and all amounts previously deferred under the terms of the instruments. The second is a limit on dividends, share buybacks, and other capital distributions based on separate earnings-based tests for (i) insured depository institutions, bank holding companies and savings and loan holding companies, on the one hand, and (ii) federally insured credit unions, on the other.

However, the interim final rule provides an exception from these restrictions for ECIP recipients that are S corporations or other pass-through entities for purposes of the Internal Revenue Code of 1986. The interim final rule will permit S corporations and other pass-through entities to make capital distributions to the extent reasonably required to cover its owners' tax obligations in respect of the entity's earnings. Such distributions shall be subject to an annual reconciliation, with any surplus or deficiency to be deducted or added to distributions, as applicable, in the following year.

The exemption for tax-related distributions in the interim final rule does not supersede otherwise applicable limitations or determinations with respect to distributions established by an ECIP recipient's Federal regulators. Accordingly, tax-related distributions permitted under the interim final rule must also comply with any applicable limitations or determinations established by an ECIP recipient's Federal regulators.

Similar to the restrictions on executive compensation described above, these limitations on capital distributions are intended to ensure that the funds provided under ECIP have the effect intended by Section 104A of the Act, and are not to provide undue compensation to an ECIP recipient's shareholders or owners. In addition, these restrictions serve to protect the taxpayer's financial interest in connection with the instruments issued by an ECIP recipient to Treasury in connection with the Program.

The interim final rule defines “non-senior securities” as any equity interests in or other instruments issued by an ECIP recipient that are pari passu with or junior to Treasury's investment, or equity interests in or other instruments issued by a depository institution holding company of which the ECIP recipient is a subsidiary. Under the interim final rule, an ECIP recipient will be prohibited from making capital distributions, such as declaring or paying any dividend on, or purchasing or redeeming, any non-senior securities unless (i) if Treasury holds shares of preferred stock, the company has paid in full dividends on the preferred stock with respect to the last completed dividend period (prior to the current dividend period); or (ii) if Treasury holds an instrument other than preferred stock ( e.g., subordinated debt), all amounts due and payable on the instrument have been paid in full, and no deferred amounts are unpaid. These restrictions reflect customary contractual protections to prevent an ECIP recipient from making discretionary distributions on non-senior securities if payments are not being made to Treasury on its investment. These restrictions would not prevent an ECIP recipient from making required, non-discretionary payments on non-senior securities, such as payments required at stated maturity in accordance with an instrument's terms, or payments of interest that may not be deferred. 17

For these purposes, a “capital distributions” are defined as (i) dividends, including discretionary dividends, on non-senior securities and any other payments on a share of stock or other equity or equivalent interest, (ii) payments, including interest payments, on non-senior securities that the issuer has full discretion to permanently or temporarily suspend without triggering a default, (iii) redemptions or repurchases of non-senior securities or (iv) any similar transaction that Treasury determines to be in substance a capital distribution. Excluded from this definition, however, are (a) redemptions or repurchases of shares that are part of an employee stock ownership plan for an ECIP recipient that is not publicly traded, provided that the repurchase is required solely by virtue of the Employee Retirement Income Security Act of 1974, as amended; (b) in the case of federally insured credit unions, payments of dividends and interest (as defined by 12 CFR 707.2(h) and (o)) on accounts held by their members and redemptions of membership share interests upon voluntary or involuntary terminations of membership by a credit union or its members, as applicable; and (c) solely in the case of the earnings test described below, redemptions or repurchases of non-senior securities if the issuer of the non-senior securities being repurchased or redeemed funds the redemption or repurchase by issuing at least a corresponding amount of new non-senior securities that rank equally in liquidation with, receive the same capital treatment as and, if applicable, have a stated maturity date no earlier than the non-senior securities being redeemed or repurchased. An extraordinary or special dividend (which excludes an ordinary dividend on a special share account) by a federally insured credit union is a capital distribution and is not subject to the exclusion for payments of dividends and interest by credit unions on accounts held by their members.

Under the interim final rule, an ECIP recipient will be required to obtain prior approval from Treasury in order to make capital distributions in excess of the following earnings-based tests.

Treasury determined that the limits on capital distributions are appropriate based on a review of publicly available data regarding average dividend rates among banking organizations with $10 billion or less in total assets, in the period before the Covid-19 pandemic. Thus, the limitation on capital distributions strikes an appropriate balance between allowing ECIP recipients to make capital distributions and helping to ensure that the proceeds of the ECIP investment are used to expand lending to low- and moderate-income and other targeted populations.

The interim final rule provides that, without prior approval from Treasury, an ECIP recipient that is an insured depository institution, bank holding company, or savings and loan holding company may not make a capital distribution if the total capital distributions made during the calendar year, including the proposed capital distribution, exceeds its “eligible distributable income,” which is calculated as the sum of the ECIP recipient's (a) year-to-date net income as of the end of the most recent calendar quarter, plus net income for the two preceding calendar years, less (b) any dividends or capital distributions for the year to date as of the end of the most recent calendar quarter, and for the two preceding calendar years, where each amount is calculated in accordance with the instructions to the Call Report or applicable reporting form. While approval may be awarded by Treasury to make capital distributions, the interim final rule confirms that such approval does not supersede any applicable regulatory requirements of the ECIP recipient's appropriate Federal banking agency, or other actions taken by such agency.

The “eligible distributable income” limit is similar to other existing earnings limitations on payments of dividends that apply to certain insured depository institutions. 18 In light of this similarity, an ECIP recipient could calculate eligible distributable income with respect to capital distributions, by applying the methodology set forth in 12 CFR 5.64 or 12 CFR 208.5, as applicable, with respect to dividends, by substituting “capital distributions” for “dividends.” In addition, in the case of 12 CFR 208.5, an ECIP recipient that is not an insured depository institution would use net income, as reported in the ECIP recipient's FR Y-9C or FR Y-9SP, instead of net income as reported in the Reports of Condition and Income. Treasury anticipates that the operational impact the capital distribution approval requirement will be nominal and that the approval requirement will provide meaningful support for the objectives of the Program.

Consistent with existing distribution limitations applicable to federally insured credit unions, 19 the interim final rule provides that, without prior approval by Treasury, an ECIP recipient that is a federally insured credit union may not make a capital distribution on any non-senior securities if the distribution would (i) in the case of a dividend, be payable from retained earnings (as defined in 12 CFR 702.2(f)) other than undivided earnings; or (ii) cause the credit union's net worth classification to fall below “adequately capitalized” (as defined in 12 CFR 702.102(a)(2)).

Under the interim final rule, Treasury retains authority to grant waivers or exemptions from the restrictions under the interim final rule on dividends, share buybacks, and other capital distributions. Such relief may be granted broadly to all ECIP recipients or to particular entities. In considering whether to grant exemptive relief, Treasury will consider whether the relief is necessary or appropriate to achieve the goals of the ECIP or to protect the public interest. Such relief may be granted based on terms and conditions as determined by Treasury, and in making determinations regarding requests for exemptive relief, Treasury may consult with the primary Federal regulator when deemed appropriate.

Each ECIP recipient will be required to submit to Treasury on an annual basis a certification executed by two senior executive officers (one of which must be either the ECIP recipient's principal executive officer or principal financial officer) that the ECIP recipient is in compliance with each of the excessive compensation, severance payments, excessive or luxury expenditures requirements and restrictions on capital distributions set forth in the interim final rule. If an ECIP recipient certifies that it satisfies the severance payments requirements, Treasury expects that the certification will address only compliance with the requirements and will neither address whether the ECIP recipient is in troubled condition for purposes of 12 CFR parts 359 and 750, as applicable, nor contain any confidential supervisory information subject to applicable disclosure restrictions promulgated by the ECIP recipients' Federal regulators.

The interim final rule is promulgated under Section 104A of the Act, and agreements between ECIP recipients and Treasury in connection with the Program will be entered into under the Act. Treasury may take action or directly address noncompliance with the requirements of this interim final rule or Program agreements. In addition, Treasury may, in its discretion, inform the appropriate Federal banking agencies of any apparent violations by ECIP recipients of the interim final rule or Program agreements between ECIP recipients and Treasury. 20

Treasury specifically solicits comments from members of the public concerning the following issues:

Question #4: Are the restrictions on dividends, share buybacks, and other capital distributions sufficiently tailored to facilitate the ECIP Program objectives without discouraging participation in the program?

Question #5: What would be the advantages and disadvantages of aligning limitations on capital distributions under the interim final rule with limitations applicable to each entity pursuant to the requirements of its appropriate Federal banking regulator? What are the advantages and disadvantages of calculating eligible distributable income based on (i) income as of the end of the most recent calendar quarter and (ii) year to date reported net income? What are the advantages and disadvantages of calculating the capital distribution limitation using (i) year-to-date dividends or capital distributions; (ii) reported dividends or capital distributions; and (iii) year-to-date dividends or capital distributions as of the end of the most recent calendar quarter?

Pursuant to authority at 5 U.S.C. 553(b)(B), the interim final rule is exempt from the rulemaking requirements of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ), including the requirement to provide prior notice and an opportunity for public comment for the good cause shown in Sections I and II of this SUPPLEMENTARY INFORMATION .

The interim final rule has been reviewed in accordance with 12 CFR part 1815, the CDFI Fund's environmental quality regulations published pursuant to the National Environmental Protection Act of 1969 (NEPA). It is the determination of Treasury that the interim final rule does not constitute a major Federal action significantly affecting the quality of the human environment and, in accordance with NEPA and the CDFI Fund's environmental quality regulations at 12 CFR part 1815, neither an Environmental Assessment nor an Environmental Impact Statement is required.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) (PRA) states that no agency may conduct or sponsor, nor is the respondent required to respond to, an information collection unless it displays a currently valid OMB control number.

The interim final rule will add current information collections for excessive or luxury expenditure policy and exemptive relief requests to the ECIP application process. The “excessive or luxury policy” collection requirements include the adoption and maintenance of the policy (detailed in section 1(iii)); written notices of change (detailed in section 1(iv)); and annual certifications (detailed in section 4). The exemptive relief requests are detailed in section 3. The addition of these collections will increase total annual burden by 44,014 hours: The policy requirements are expected to take 1,100 respondents 40 hours to complete for an annual burden of 44,000 hours, and it is estimated that 55 (or 5%) of respondents will submit an exemptive relief request that will take 15 minutes to complete, for an annual burden of 14 hours. The OMB Control Number for the Emergency Capital Investment Program information collection is 1505-0267.

Comments concerning suggestions for reducing the burden of collections of information should be directed to the Deputy Director for Policy and Programs, Community Development Financial Institutions Fund, 601 13th Street, NW, Suite 200 South, Washington, DC 20005.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) requires an agency to consider whether the rules it proposes will have a significant economic impact on a substantial number of small entities. 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 above, consistent with 5 U.S.C. 553(b)(B), Treasury has determined for good cause that general notice and opportunity for public comment is unnecessary, and therefore is not issuing a notice of proposed rulemaking. Because no notice of proposed rulemaking is required for this interim final rule, the provisions of the RFA do not apply. Nevertheless, Treasury seeks comment on whether, and the extent to which, the interim final rule would affect a significant number of small entities.

This interim final rule is economically significant for the purposes of Executive Orders 12866 and 13563. Treasury, however, is proceeding under the emergency provision at Executive Order 12866 section 6(a)(3)(D) based on the need to move expeditiously to mitigate the current economic conditions arising from the COVID-19 emergency, as discussed in Section II of this Supplementary Information.

This interim final rule does not have federalism implications as defined in Executive Order 13132. It will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in the executive order. As such it does not warrant the preparation of a federalism assessment.

The Administrator of the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) has determined that this is a major rule for purposes the Congressional Review Act (CRA) (5 U.S.C. 804(2) et seq. ). Under the CRA, a major rule takes effect 60 days after the rule is published in the Federal Register . 5 U.S.C. 801(a)(3).

Notwithstanding this requirement, the CRA allows agencies to dispense with the requirements of section 801 when the agency for good cause finds that such procedure would be impracticable, unnecessary, or contrary to the public interest and the rule shall take effect at such time as the agency promulgating the rule determines. 5 U.S.C. 808(2). Pursuant to § 808(2), Treasury, for the good cause shown in sections I and II of this SUPPLEMENTARY INFORMATION , finds that a 60-day delay to provide public notice is impracticable and contrary to the public interest.

On February 9, 2021, (86 FR 8699), EPA published a final rule action announcing our approval of Maryland's negative declaration regarding the existence of SSI units in the state. In the document, we inadvertently indicated that a section should be added to the Code of Federal Regulations (CFR) at 40 CFR 62.4690 for air emissions from existing SSI units. The intent of the rule was to add a section for air emissions from existing SSI units at 40 CFR 62.5170. This document corrects the erroneous language.

As published, the final rule would amend subpart T, which is for the approval of state plans for designated facilities and pollutants for the state of Louisiana. The intent of the final rule was to change the approval of state plans for designated facilities and pollutants for the State of Maryland. This correction will ensure that the correct section of the CFR, which for Maryland is subpart V, is amended.

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making this rule final without prior proposal and opportunity for comment because we are merely correcting an incorrect citation in a previous action. Thus, notice and public procedure are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).

In FR doc. 2021-02617 appearing on page 8699 in the Federal Register of Tuesday, February 9, 2021 the following corrections are made:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2018-0551 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before May 10, 2021. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2018-0551, by one of the following methods:

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

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

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

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

In the Federal Register of May 9, 2019 (84 FR 20320) (FRL-9992-36), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 8F8685) by FMC Corporation, 2929 Walnut Street, Philadelphia, PA 19104. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the fungicide, fluindapyr, 3-(difluoromethyl)-N-(7-fluoro-2,3-dihydro-1,1,3-trimethyl-1H-inden-4-yl)-1-methyl-1H-pyrazole-4-carboxamide, in or on almond, hulls at 15 parts per million (ppm); aspirated grain fractions at 60 ppm; cattle, fat at 0.15 ppm; cattle, meat byproducts at 0.6 ppm; field corn, grain at 0.01 ppm; field corn, oil at 0.03 ppm; fruit, small vine-climbing except fuzzy kiwifruit, crop subgroup 13-07F at 3 ppm; grain, cereal, crop group 15, except rice and corn at 0.9 ppm; grain, cereal, forage, crop group 16, except rice, forage at 15 ppm; grain, cereal, hay, crop group 16 except rice, hay at 8 ppm; grain, cereal, stover, crop group 16 except rice, stover, and sweet corn stover at 4 ppm; grain, cereal, straw, crop group 16, except rice, straw at 20 ppm; poultry, meat byproducts at 0.03 ppm; soybean, forage at 15 ppm; soybean, hay at 30 ppm; soybean, hulls at 0.6 ppm; soybean, seed at 0.2 ppm; sweet corn, K+CWHR at 0.01 ppm; sweet corn, stover at 20 ppm; swine, meat byproducts at 0.02 ppm; and tree nuts, crop group 14-12 at 0.04 ppm. That document referenced a summary of the petition prepared by FMC Corporation, the registrant, which is available in the docket, http://www.regulations.gov. One comment was received on the notice of filing. EPA's response to this comment is discussed in Unit IV.C.

Based upon review of the data supporting the petition and in accordance with its authority under FFDCA section 408(d)(4)(A)(i) to establish tolerances that vary from what was requested, EPA is establishing several tolerances at different levels than were requested, including additional livestock commodities as necessary. In addition, tolerances for fruit, small vine-climbing except fuzzy kiwifruit crop group 13-07F and soybeans were removed. The reasons for these changes are explained in Unit IV.D.

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

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

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

The target organs of fluindapyr are the liver and thyroid. Liver effects include hepatocellular hypertrophy, increased liver weights, and bile duct hyperplasia with correlated increases in alkaline phosphatase (ALP), alanine aminotransferase (ALT), and gamma glutamyl transferase (GGT) at the highest dose tested. Liver effects progress with time in treated dogs, while similar effects are not seen in rats and mice at high dose levels. Liver effects are seen in the mouse carcinogenicity study at a higher dose level than the liver effects observed in dogs; the effects consisted of increased incidence of hepatocellular alterations (basophilic, eosinophilic, vacuolated), necrosis, and pigmented macrophages. Thyroid effects include increased instances of follicular hypertrophy/hyperplasia.

In the acute neurotoxicity study, potential evidence of neurotoxicity in the form of decreases in total and ambulatory motor activities and in rearing were seen in the rat. However, no additional functional observation (FOB) parameters were affected, and no neuropathological findings of both central and peripheral nerves were observed.

There is no evidence of increased quantitative or qualitative susceptibility in the developmental toxicity studies in rabbits or rats; or the reproductive toxicity study in rats. With in-utero exposure in the developmental toxicity studies, fluindapyr did not produce any adverse effects in either rat or rabbit parental animals or fetuses at or approaching the limit dose. In the reproduction study, in parental animals (P and F1 males and females), fluindapyr induced an increase in thyroid follicular hypertrophy/hyperplasia. It also induced adverse effects on a host of reproductive parameters. It also produced adverse offspring effects as indicated by decreases in F1 and F2 pup body weights in both sexes; thymus and spleen weights were also decreased. The parental, reproductive, and offspring effects all occurred at the same dose levels. The increased incidence of thyroid follicular hypertrophy/hyperplasia raised concerns for the potential of thyroid effects on the developing animals. EPA applied a 10X safety factor to the appropriate exposure scenarios to account for the uncertainties associated with the life stage susceptibility.

In the chronic toxicity/carcinogenicity studies in rats and mice, there was no evidence of carcinogenicity. The mutagenicity battery was negative. Fluindapyr is classified as “Not Likely to be Carcinogenic to Humans”.

Specific information on the studies received and the nature of the adverse effects caused by fluindapyr as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document “Fluindapyr: Human Health Risk Assessment for Section 3 Registration and Tolerance Requests for a New Active Ingredient Proposed for Use on Cereal Grains Crop Group 15 except Rice; Forage, Fodder and Straw of Cereal Grains Crop Group 16; and Soybean” (hereinafter “Fluindapyr Human Health Risk Assessment”) on pages 14-20 in docket ID number EPA-HQ-OPP-2018-0551.

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

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

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

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. Such effects were identified for fluindapyr. In estimating acute dietary exposure, EPA used 2003-2008 food consumption information from the United States Department of Agriculture (USDA) Nationwide Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). As to residue levels in food, the acute analysis assumed 100% crop treated (PCT) for all commodities, highest average field trial (HAFT) residue values, empirical and default processing factors, and anticipated livestock residues based on calculated livestock dietary burden and tissue transfer rates from the livestock feeding studies.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used 2003-2008 food consumption data from the USDA's NHANES/WWEIA. As to residue levels in food, chronic analysis assumed 100 PCT for all commodities, field trial mean residue values, empirical and default processing factors, and anticipated livestock residues based on calculated livestock dietary burden and tissue transfer rates from the livestock feeding studies and metabolite ratios from the metabolism studies.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that fluindapyr does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

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

EPA did not use information on the percent of food actually treated in the dietary assessment for fluindapyr; 100 PCT was assumed for all food commodities.

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

Using the Pesticide Water Calculator (PWC, version 1.52), the estimated drinking water concentrations (EDWCs) of fluindapyr were determined to be higher in groundwater than in surface water for both acute and chronic exposure durations. The following groundwater EDWCs were used directly in the dietary exposure model to account for the contribution of fluindapyr and relevant transformation products (3-OH-F9990 and 1-COOH-F9990) residues in drinking water as follows: 254.1 ppb was used in the acute assessment and 217.8 ppb was used in the chronic assessment.

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

Fluindapyr is currently registered for the following use that could result in residential exposures: Golf course turf. The currently registered use on golf courses will result in short-term (1 to 30 days) residential post-application dermal exposures to adult, youth 11 to less than 16 years old, and children 6 to less than 11 years old. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/trac/science/trac6a05.pdf .

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

Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to fluindapyr and any other substances and fluindapyr does not appear to produce a toxic metabolite produced by other substances. For the purposes of this action, therefore, EPA has not assumed that fluindapyr has a common mechanism of toxicity with other substances.

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

2. Prenatal and postnatal sensitivity. In the developmental toxicity studies (rat and rabbit), fluindapyr did not produce any adverse effects in parental animals or fetuses at or approaching the limit dose (1,000 mg/kg/day). In the reproduction study, in parental animals (P and F1 males and females), fluindapyr induced an increase in thyroid follicular hypertrophy/hyperplasia. It also induced adverse effects on a host of reproductive parameters. There is no evidence of increased quantitative or qualitative susceptibility in the developmental toxicity studies in rabbits or rats or the reproductive toxicity study in rats. In the 2-generation reproduction study in rats, reproductive effects were observed, and offspring toxicity (decreased pup weights in F1 and F2 generation; thymus and spleen weights were decreased) was observed in the presence (same dosage) of parental toxicity (increase in thyroid follicular hypertrophy/hyperplasia and reproductive effects).

3. Conclusion. Due to the uncertainties concerning the potential life stage susceptibility related to adverse thyroid effects seen in parental animals of the reproductive study, EPA is retaining the FQPA 10X SF for exposure scenarios that rely on the reproductive study in which such effects were seen. For purposes of this safety assessment, those scenarios are the post-application short-term dermal exposures and the short-term aggregate risk assessment. For the acute and chronic dietary assessments, EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

i. The toxicity database for fluindapyr is complete. Fluindapyr caused an increased in the thyroid follicular hypertrophy/hyperplasia in the 2-generation reproduction study. The results of these findings raised concerns about the potential impact to the developing brain in response to changing thyroid levels brought on by thyroid effect in the parents. A database uncertainty factor of 10X is placed on fluindapyr to address this concern.

ii. In the acute neurotoxicity study (ACN), decreases in total and ambulatory motor activities and in rearing were seen and could be considered as potential evidence for neurotoxicity. However, concern with fluindapyr is low because (1) no other effects were observed in database including in the subchronic neurotoxicity study (SCN); (2) no neurohistopathology was found in the ACN, SCN or any toxicity study in the fluindapyr database; and (3) the toxicity endpoints and PoD selected for risk assessment are protective of the effects seen in the ACN.

iii. There is no evidence that fluindapyr results in increased quantitative or qualitative susceptibility in the developmental toxicity studies in rabbits or rats or the reproductive toxicity study in rats. In the 2-generation reproduction study in rats, reproductive effects were observed, and offspring toxicity (decreased pup weights in F1 and F2 generation; thymus and spleen weights were decreased) was observed in the presence (same dosage) of parental toxicity. Based on the effects in the 2-generation reproduction study, there is some uncertainty about the potential thyroid-related effects on the developing fetus or child. While EPA is retaining the 10X FQPA SF for short-term aggregate risk assessment, there is no concern for this uncertainty for the acute dietary exposure assessment because perturbation of thyroid after a single dose is not anticipated to impact the developing fetus or offspring. Nor is there a concern for this uncertainty in the chronic dietary assessment because the chronic dietary endpoint, based on effects in dogs, is protective of potential thyroid-related effects observed in developing rats or offspring.

iv. There are no residual uncertainties identified in the exposure databases. The dietary risk assessments are based on high-end assumptions such as 100 PCT assumptions, HAFT and field trial mean residue values, empirical and default processing factors, anticipated livestock residues based on calculated livestock dietary burden and tissue transfer rates from the livestock feeding studies and modeled, high-end estimates of residues in drinking water. All of the exposure estimates are based on high-end assumptions and are not likely to underestimate risk. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to fluindapyr in drinking water. EPA used similarly conservative assumptions to assess postapplication exposure of children. These assessments will not underestimate the exposure and risks posed by fluindapyr.

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

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to fluindapyr will occupy 8.9% of the aPAD for all infants (<1 year old), the population group receiving the greatest exposure.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to fluindapyr from food and water will utilize 33% of the cPAD for infants <1 year old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of fluindapyr is not expected.

3. Short-term and intermediate-term risk. Short-term and intermediate-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Short-term and intermediate-term endpoints and residential exposure estimates are identical, and so short-term aggregate exposure is considered protective of intermediate-term aggregate exposures. The three population subgroups assessed for residential post-application exposures are: Adults, youth 11 to <16 years old, and children 6 to <11 years old. Of the three population subgroups, the children 6 to <11 years old represent the highest dermal exposure from post-application exposures and the highest background dietary exposure. Therefore, this population subgroup is considered protective of the other two population subgroups.

For adults, intermediate-term exposure is not expected for the residential exposure pathway. Therefore, the intermediate-term aggregate risk would be equivalent to the chronic dietary exposure estimate. For children, all intermediate-term aggregate risks are equivalent to short-term aggregate risks.

Using the exposure assumptions described in this unit for short-term and intermediate-term exposures, EPA has concluded the combined short- and intermediate term food, water, and residential exposures result in aggregate MOEs of 720 for youth (6 to <11 yrs. old) with dermal exposure from post-application exposure to residue from treated golf course. Because EPA's level of concern for fluindapyr is a MOE of 100 or below, these MOEs are not of concern.

4. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, fluindapyr is not expected to pose a cancer risk to humans.

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

The petitioner has proposed a liquid chromatography with tandem mass spectrometer (LC/MS/MS) for determination of fluindapyr and metabolites 3-OH-F9990, F9990-DM-glucoside, 1-OH-Me-F9990, 1-OH-Me-DM-F9990, and 1-COOH-F9990 in plant commodities. For livestock commodities, adequate enforcement methodology using LC/MS/MS is available for determination of residues of fluindapyr and its metabolites.

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

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

The Codex has not established an MRL for fluindapyr.

One comment was received in response to the notice of filing that argued against the use fluindapyr on several commodities and the overall toxicity of pesticides. In addition, the commenter raised three additional concerns: The lack of tests involving the combination of fluindapyr and other chemicals; fluindapyr a potential cancer-causing agent; and fluindapyr is a fluoride compound. Although the Agency recognizes that some individuals believe that pesticides should be banned on agricultural crops, the existing legal framework provided by section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA) authorized EPA to establish tolerances when it determines that the tolerance is safe. Upon consideration of the validity, completeness, and reliability of the available data as well as other factors the FFDCA requires EPA to consider, EPA has determined that these fluindapyr tolerances are safe. The commenter has provided no information supporting a contrary conclusion.

In its assessment of safety under the FFDCA, EPA considers combinations of pesticides by evaluating the cumulative effects of pesticides that have a common mechanism of toxicity. At this time, EPA has not identified a common mechanism of toxicity between fluindapyr and other pesticides and thus there are no combinations of pesticides to consider at this time.

EPA has evaluated available data concerning carcinogenicity and determined that fluindapyr is not likely to be carcinogenic to humans. This conclusion is based on a lack of treatment-related tumors seen in male or female rats or mice and no concern for mutagenicity. The commenter has provided no additional information about potential carcinogenicity.

Fluindapyr contains a difluoromethyl group and a fluorine-substituted phenyl group. The difluoromethyl group remains intact on the compounds identified in crop (primary and rotational), livestock, and environmental fate studies, including the compounds identified as the residues of concern for tolerance enforcement and risk assessment purposes for crop and livestock commodities. While the metabolism studies show the phenyl group does degrade, it is extremely unlikely for the fluorine to form a free fluorine because the stability of the bond between the fluorine and carbon atom. Therefore, applications of fluindapyr are not expected to result in dietary exposure to fluoride.

Based on EPA's review of the data supporting the petition, EPA is establishing tolerances that vary from what the petitioner requested under its authority in FFDCA section 408(d)(4)(A)(i). Some commodity terms are altered to be consistent with Agency nomenclature. EPA is not establishing tolerances for corn oil since EPA determined that residues on this commodity will be adequately covered under corn, field, grain due to the lack of concentration during processing. EPA is also not establishing tolerances for fruit, small vine-climbing except fuzzy kiwifruit, crop subgroup 13-07F and the soybean commodities as initially requested since they are not necessary at this time, due to the withdrawal of the proposed uses by the petitioner.

EPA is establishing tolerance levels lower than what the petitioner requested for grain, aspirated fractions; grain, cereal, group 15, except rice and corn from 0.9 ppm; and cattle, fat based on the submitted field trial data for those commodities using the OEDC MRL (Maximum Residue Limit) calculator.

Because of potential increase of fluindapyr (including metabolites and degradates) in livestock diet, largely due to cereal grain crop group 15 and 16 use, and based on updated maximum reasonably balanced diet (MRBD) calculations for livestock, the Agency has determined that finite residues will be incurred in poultry (egg, fat, meat, and meat byproducts), ruminants (fat, milk, meat, and meat byproducts), hog (fat, meat, and meat byproducts), and horse (fat, meat, and meat byproducts); therefore, under 40 CFR 180.6, EPA is establishing tolerances for those commodities.

Therefore, tolerances are established for residues of fluindapyr, 3-(difluoromethyl)-N-(7-fluoro-2,3-dihydro-1,1,3-trimethyl-1H-inden-4-yl)-1-methyl-1H-pyrazole-4-carboxamide, in or on almond, hulls at 15 ppm ; corn, field, grain at 0.01 ppm; corn, sweet, kernel plus cob with husks removed at 0.01 ppm; corn, sweet, stover at 20 ppm; grain, aspirated fractions at 20 ppm; grain, cereal, forage, fodder, and straw, group 16 forage, except rice at 15 ppm; grain, cereal, forage, fodder, and straw, group 16, hay, except rice at 8 ppm; grain, cereal, forage, fodder, and straw, group 16, stover, except rice at 4 ppm; grain, cereal, forage, fodder, and straw, group 16, straw, except rice at 20 ppm; grain, cereal, group 15, except rice and corn at 0.8 ppm; nut, tree, group 14-12 at 0.04 ppm; egg at 0.01 ppm; milk at 0.01 ppm; cattle, fat at 0.03 ppm; cattle, meat at 0.01; goat, fat at 0.03 ppm; goat, meat at 0.01 ppm; hog, fat at 0.01 ppm; hog, meat at 0.01 ppm; horse, fat at 0.03 ppm; horse, meat at 0.01 ppm; poultry, fat at 0.01 ppm; poultry, meat at 0.01 ppm; sheep, fat at 0.03 ppm; and sheep, meat at 0.01 ppm. In addition, tolerances are established for residues of fluindapyr, 3-(difluoromethyl)- N -(7-fluoro-1,1,3-trimethyl-2,3-dihydro-1 H -inden-4-yl)-1-methyl-1 H -pyrazole-4-carboxamide, and 3-(difluoromethyl)- N -(7-fluoro-1-hydroxymethyl-1,3-dimethyl-2,3-dihydro-l H -inden-4-yl)-1-methyl-l H -pyrazole-4-carboxamide, in or on cattle, meat byproducts at 0.3 ppm; goat, meat byproducts at 0.3 ppm; horse, meat byproducts at 0.3 ppm; hog, meat byproducts at 0.01 ppm; poultry, meat byproducts at 0.01 ppm; and sheep, meat byproducts at 0.3 ppm.

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

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

Previous Federal Actions

On April 4, 2019, we published a proposed rule (84 FR 13223) to add the Missouri DPS of the eastern hellbender as an endangered species to the List of Endangered and Threatened Wildlife in part 17 of title 50 of the Code of Federal Regulations (at 50 CFR 17.11(h)). We concurrently published a not warranted finding on the listing of the eastern hellbender subspecies as a whole. See the proposed listing rule for the Missouri DPS of the eastern hellbender for more information regarding the previous Federal actions on the hellbender species and related subspecies.

The Missouri DPS of the eastern hellbender lies completely within the boundaries of the State of Missouri with eastern hellbenders known to occur in Big River, Big Piney River, Courtois Creek, Gasconade River, Huzzah Creek, Meramec River, Niangua River, and Osage Fork of the Gasconade River (figure 1). The Meramec River watershed, which includes the Big River and Courtois Creek, drains directly into the Mississippi River; whereas all of the other watersheds in the Missouri DPS drain directly into the Missouri River. Please refer to our April 4, 2019, proposed rule (84 FR 13223) for a summary of species background information available to the Service at the time that it was published.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an “endangered species” or a “threatened species.” The Act defines an endangered species as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether any species is an “endangered species” or a “threatened species” because of any of the following factors:

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

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

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

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

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

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

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

Our proposed rule described “foreseeable future” as the extent to which we can reasonably rely on predictions about the future in making determinations about the future conservation status of the species. The Service since codified its understanding of foreseeable future in 50 CFR 424.11(d) (84 FR 45020). In those regulations, we explain the term “foreseeable future” extends only so far into the future as the Service can reasonably determine that both the future threats and the species' responses to those threats are likely. The Service will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species' life-history characteristics, threat-projection timeframes, and environmental variability. The Service need not identify the foreseeable future in terms of a specific period of time. These regulations did not significantly modify the Service's interpretation; rather they codified a framework that sets forth how the Service will determine what constitutes the foreseeable future. Accordingly, although these regulations do not apply to the final rule for the Missouri DPS of the eastern hellbender because it was proposed prior to their effective date, they do not change the Service's assessment of foreseeable future for the Missouri DPS of the eastern hellbender as contained in our proposed rule and in this final rule. In the discussion of threats and the species' response to those threats that follows, we include a discussion of, where possible, either a qualitative or quantitative assessment of the timing of the threats and species' responses to those threats.

The Eastern Hellbender ( Cryptobranchus alleganiensis alleganiensis ) Species Status Assessment Report (SSA report) documents the results of our comprehensive biological status review for the eastern hellbender subspecies as a whole, including an assessment of the potential stressors to the species (U.S. Fish and Wildlife Service 2018, entire). The SSA report does not represent a decision by the Service on whether the subspecies (or the DPS) warrants listing as an endangered or threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report, specifically related to the Missouri DPS of the eastern hellbender; the full SSA report can be found at Docket No. FWS-R3-ES-2018-0056 on http://www.regulations.gov and at https://www.fws.gov/midwest/endangered/amphibians/eastern_hellbender.

To assess eastern hellbender viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. This process used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision.

We identified four geographical units (referred to in the SSA report as adaptive capacity units (ACUs)), based on Hime et al.' s (2016, entire) evaluation of genetic markers, to delineate variation in genetic and ecological traits within the eastern hellbender's historical range ( i.e., evolutionary lineages; figure 2). The units are: (1) Missouri River drainage (MACU), (2) Ohio River-Susquehanna River drainages (OACU), (3) Tennessee River drainage (TACU), and (4) Kanawha River drainage (KACU). Through the DPS analysis described in the proposed rule (84 FR 13223, April 4, 2019), the Service determined that the MACU adaptive capacity unit was a distinct population segment and that the DPS met the definition of endangered. Any reference to the MACU in the SSA can be understood to mean the Missouri DPS of eastern hellbender. The term MACU is used throughout this document (and the SSA report) but references the same geographic areas as the Missouri DPS of the eastern hellbender.

The Missouri DPS of eastern hellbender (or MACU) historically had five populations. One of the populations is considered functionally extirpated ( i.e., the number of individuals remaining is so low that the population is no longer considered to be viable; while the four other populations are declining and not in healthy condition. As noted in our DPS analysis in the proposed rule, eastern hellbenders occupy small home ranges, and the populations within the Missouri DPS are disjoined from other populations of eastern hellbender by such a large geographic distance (200 river miles) that there is no feasible way other populations could act as a source for any populations within this DPS (84 FR 13232, April 4, 2019). The Missouri DPS's current condition is most strongly influenced by sedimentation, poor water quality, disease, habitat disturbance, small population size, and direct mortality. Additionally, collection and sale of eastern hellbenders continues to be a threat to the species. Augmentation is an important positive influence, but even with introductions ongoing, all extant populations have a declining trend in abundance. Though redundancy has declined with the functional extirpation of eastern hellbenders in one stream of the DPS, we have concluded that DPS-wide extirpation is unlikely due to a catastrophic chemical pollution event (Service 2018, p. 37). One of the largest freshwater oil spills in the nation (863,268 gallons of crude oil) occurred within the range of the Missouri DPS of eastern hellbender in 1988. The DPS persisted after the spill, but resiliency and redundancy have both declined since the spill. We have also concluded that the Missouri DPS of eastern hellbender likely has lower viability and greater vulnerability to current and potential future stressors, compared to other segments of the species' range. We summarize the major influences to the Missouri DPS of eastern hellbender viability below; for more detail see chapter 5 of the SSA report (Service 2018, pp. 34-56).

In consultation with species' experts, we identified the past and current negative and beneficial factors that have led to the eastern hellbender's current condition and which may influence population dynamics into the future. Factors having a negative impact on eastern hellbender individuals are referred to as risk factors (also as threats or stressors), while factors having a beneficial effect are referred to as conservation factors. We referred to risk and conservation factors collectively as “influences.” A brief summary of the most influential factors is presented below; for a full description of these factors, refer to chapter 5 of the SSA report (Service 2018, pp. 26-48).

Sedimentation was identified as the factor most impacting the status of the Missouri DPS of eastern hellbender. Sedimentation is the addition of fine soil particles ( e.g., sands, silts, clays) to streams. These sediments bury shelter and nest rocks (Blais 1996, p. 11; Lipps 2009, p. 10; Hopkins and DuRant 2011, p. 112), suffocate eggs (Nickerson and Mays 1973, pp. 55-56), alter habitat for crayfish (the primary food source of adult eastern hellbenders) (Santucci et al. 2005, pp. 986-987; Kaunert 2011, p. 23), and degrade habitat for larval and juvenile hellbenders, as well as habitat for macroinvertebrates, which are an important food source for larval hellbenders (Cobb and Flannagan 1990, pp. 35-37; Nickerson et al. 2003, p. 624). Because sedimentation affects all life stages of the eastern hellbender, impairs or prevents successful reproduction, and is pervasive throughout the subspecies' range, it has specifically been implicated as a cause of eastern hellbender declines and as a continuing threat throughout much of the Missouri DPS range.

Degraded water quality was estimated as having the second highest impact on the Missouri DPS's status because it can cause direct mortality of eastern hellbenders and, at sublethal levels, can alter physiological processes and increase vulnerability to other threats (Maitland 1995, p. 260). Major sources of aquatic pollutants include domestic wastes, agricultural runoff, coal mining activities, road construction, and unpermitted industrial discharges. There are a few documented cases of eastern hellbender kills (Williams, Chapman, and Floyd 2017, pers. comm.; Feller and Thompson 2011, entire) and many examples of fish and mussel kills from chemical pollution within the eastern hellbender range (USFWS 2013, pp. 59279-59284; Henley et al. 2002, entire). However, there is no information available to estimate how frequently chemical pollution events occur or the likelihood of this causing catastrophic decline in the Missouri DPS. Several databases track reported chemical spill events, 303(d) listed streams, and chemical pollution; however, the effects of chemicals on eastern hellbender remain largely unknown (Burgmeier et al. 2011b, p. 836; Pugh et al. 2015, pp. 105-6). While it is unlikely that a single chemical spill could cause catastrophic loss of the entire DPS, such loss is possible if multiple spills occur in the Missouri DPS of eastern hellbender. For further discussion about water quality degradation see Risk and Conservation Factors of the SSA report (Service 2018, pp. 34-56).

Disease (specifically, Bd ) was estimated to be strongly contributing to the current condition of the Missouri DPS of the eastern hellbender and was ranked fourth in threats currently affecting eastern hellbenders by species experts (Service 2018, p. 36). Diseases can act as stressors and have the potential to cause catastrophic loss of hellbender populations. Emerging infectious diseases (EID), especially fungal EIDs in wildlife (discussed below), are on the rise (Fisher et al. 2012, p. 188). Salamanders are especially susceptible given the high magnitude of legal and illegal trade in herpetofauna. The importation of wildlife is a known pathway for transmission of pathogens.

Batrachochytrium dendrobatidis ( Bd ) is a fungal pathogen responsible for causing chytridiomycosis, a highly infectious amphibian disease associated with mass die-offs, population declines and extirpations, and potentially species extinctions on multiple continents (Berger et al. 1998, pp. 9031-9036; Bosch et al. 2001, pp. 331-337; Lips et al. 2006, pp. 3165-3166). The range of occurrence within eastern hellbenders in the Missouri DPS ranges among the rivers from 3-8 percent (Briggler 2019, pers. comm), and Bodinof et al. (2011, p. 3) found the earliest detection in Missouri occurred in 1975. Although the exact impact of Bd remains unclear, species experts believe that even mild chronic Bd infections may negatively impact eastern hellbenders and may increase susceptibility of eastern hellbenders to other infections. While Bd currently does not appear to be causing large-scale mortality events in populations of eastern hellbenders in the Missouri DPS, other stressors, such as environmental contaminants or rising water temperatures, can weaken animals' immune systems, leading to outbreaks of clinical disease, and cause mortality events in the future (Briggler et al. 2007, p. 18; Regester et al. 2012, p. 19).

Batrachochytrium salamandrivorans ( Bsal ) is a fungal pathogen that invaded Europe from Asia around 2010 and has caused mass die-offs of fire salamanders ( Salamandra salamandra ) in northern Europe (Martel et al. 2014, p. 631; Fisher 2017, pp. 300-301). Given extensive unregulated trade and the discovery of Bsal in Europe in 2010, the introduction of this novel pathogen could cause extirpations of naïve salamander populations in North America (Yap et al. 2017, entire) were Bsal to be introduced here. Given the high risk of Bsal invasion, on January 13, 2016, the Service published in the Federal Register (81 FR 1534) an interim rule to list 20 amphibian genera known to carry Bsal as injurious under the Lacey Act to limit importation into the United States. Despite this protection, it is possible that an unknown carrier or illegal import could introduce this pathogen into eastern hellbender populations. The Missouri DPS of the eastern hellbender has a low to moderate risk of Bsal introduction based on proximity to areas with a high volume of amphibian trade (Richgels et al. 2016, p. 5); unregulated trade of amphibians occurs in the range of the DPS and releases of infected amphibians could lead to the introduction of Bsal to this area.

Anthropogenic disturbance in the form of rock-moving by people recreating on rivers is a stressor on eastern hellbenders and can cause mortality. Large shelter rocks are removed to reduce obstructions to recreational canoeing or tubing. Additionally, collection of boulders, rocks, and cobble for landscaping has been suspected in some areas in Missouri (Briggler et al. 2007, p. 62). Because large rocks serve as shelter and nesting habitat for adults, and smaller rocks and cobble provide larval and juvenile habitat, moving rocks of any size has the potential to lead to mortality of some life stage. For example, Unger et al. (2017, entire) documented a deceased adult eastern hellbender under a recently constructed rock stack and a deceased larval eastern hellbender under freshly moved cobble at the base of a small, artificial dam. Both structures were presumed to have been constructed by recreational visitors to the small, heavily used stream (Unger et al. 2017, entire).

Populations of the Missouri DPS of eastern hellbender are small and isolated from one another by impoundments and large reaches of unsuitable habitat. This isolation restricts movement among populations and precludes natural recolonization from other populations (Dodd 1997, p. 178; Benstead et al. 1999, pp. 662-664; Poff and Hart 2002, p. 660).

Some native predators of the eastern hellbender, such as raccoons, have increased in abundance due to anthropogenic influences, while others have recently been reintroduced into hellbender streams within the range of the Missouri DPS ( e.g., river otters) (Briggler et al. 2007, p. 17). Nonnative predators are also present within a large portion of the Missouri DPS of eastern hellbender's range and include predatory fish stocked for recreation, such as rainbow trout ( Oncorhynchus mykiss ) and brown trout ( Salmo trutta ) (Mayasich et al. 2003, p. 20). Species experts presume nonnative trout species directly impact eastern hellbenders by predating on eggs, larvae, and subadults (Briggler et al. 2007, p. 23).

Large numbers of eastern hellbenders have historically been removed from some streams within the Missouri DPS for scientific and educational purposes (Peterson 1985, p. 59; Ingersol 1991, pp. 61, 63). Though there is no documentation of collection of eastern hellbenders within the Missouri DPS for the pet trade, we presume that individuals were also collected for this purpose based on documentation of the large number of Ozark hellbenders illegally collected for the pet trade (Nickerson and Briggler 2007, entire) and the proximity of the Missouri DPS to Ozark hellbenders. These removals likely contributed to the population declines seen in some streams. The current rate of permanent removal of eastern hellbenders is likely significantly lower than it has been historically. However, collection and sale of eastern hellbenders continues to be a threat, with internet advertisements as recent as 2010 soliciting purchase of wholesale lots of eastern hellbenders (Briggler 2010, pers. comm.). Killing of eastern hellbenders by some anglers and the removal of individuals for personal use and the pet trade also continues in some areas (Briggler et al. 2007, pp. 18, 59). Even though many eastern hellbenders targeted by scientists and nature enthusiasts are returned to the stream, the act of searching for eastern hellbenders can result in increased egg and larval mortality. Eastern hellbenders are typically captured by lifting large shelter rocks and catching individuals by hand. Many researchers have speculated that rock lifting to collect eastern hellbenders results in adverse impacts to all life stages, especially when done during the breeding season (Williams et al. 1981b, p. 26; Lindberg and Soule 1991, p. 8; Williams 2012, pers. comm.).

As a long-lived species, removing adult eastern hellbenders from stream populations may be particularly detrimental, as stable populations of long-lived species typically have high adult survival rates, which compensates for correspondingly low rates of recruitment into the adult populations (Miller 1976, p. 2). In eastern hellbender populations with low densities and little evidence of recent recruitment into the adult population, the removal of any individuals from a population may be deleterious (Pfingsten 1988, p. 16). Because many populations within the Missouri DPS of eastern hellbender are already stressed by habitat degradation, compensation for high adult mortality through high recruitment of juveniles is even less likely. Although the magnitude of the threat of removing individuals from the wild is not known with certainty, its occurrence is commonly noted by field researchers, suggesting that it is a relatively common occurrence in some portions of the subspecies' range. Furthermore, as the number of populations decline and become concentrated on public lands, locations and animals might be easier to find (discussed below in the Conservation Efforts section and the SSA report; Service 2018, p. 56).

In some instances, effects from one threat may increase effects of another threat, resulting in what is referred to as synergistic effects. Synergistic effects often include an increased susceptibility to predation (Moore and Townsend 1998, pp. 332-333), disease (Kiesecker and Blaustein 1995, pp. 11050-11051; Taylor et al. 1999, pp. 539-540), or parasites (Kiesecker 2002, pp. 9902-9903; Gendron et al. 2003, pp. 472-473). In addition, chronic, increased levels of stress hormones have been shown to inhibit immune response (Rollins-Smith and Blair 1993, pp. 156-159; Romero and Butler 2007, pp. 93-94). Other stressors present in the eastern hellbender's environment ( e.g., habitat modification, degraded water quality) could reduce immune response and thereby increase vulnerability to disease and parasites.

Beneficial efforts, primarily of population augmentation, were also ranked by species' experts as an important influence on the Missouri DPS's status. Captive-rearing increases the survival rate of young by raising them in captivity to 2 to 4 years of age (Briggler 2019, pers. comm.). Once reared, young are released into the wild to augment existing populations or reintroduced into areas where the species has been extirpated. However, we currently have no data on whether released individuals have successfully reproduced or can successfully reproduce, or the survival rates of any resulting offspring.

In addition, artificial nest boxes have been successfully used for reproduction by hellbenders in Missouri (Briggler 2016, p. 1). However, the survival of fertilized eggs and larvae from these nest boxes is unknown. Because nest boxes may present a curiosity to stream recreationists, hellbenders occupying the nests are susceptible to disturbance, persecution, and collection if the nest boxes are not properly camouflaged.

Lastly, the eastern hellbender (including the Missouri DPS) is listed on Appendix III of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). CITES is an international agreement among governments with the purpose of ensuring that international trade in wild animals and plants does not threaten their survival. Appendix III includes native species that at least one Party country ( i.e., a country that is part of CITES) has identified as requiring regulation to prevent or restrict exploitation. Under Appendix III, that Party country requests the help of other Parties to monitor and control the trade of that species.

In summary, stressors are pervasive across the range of the Missouri DPS of the eastern hellbender. The primary stressors affecting the Missouri DPS of eastern hellbender include sedimentation, water quality degradation, disease, habitat disturbance, small population size, and direct mortality. Although augmentation has the potential to influence the status of the DPS, little data exist as to whether successful sustained reproduction and recruitment can be achieved and whether augmentation is logistically possible throughout the range. With regard to redundancy, there is high vulnerability for DPS-wide extirpation due to the low number (four) and reduced distribution of populations.

Populations of the Missouri DPS eastern hellbender have declined as much as 77 percent over a twenty-year period in the Big Piney River, Gasconade River and Niangua River (Wheeler et al. 2003, p. 155). The threats described above have already resulted in the functional extirpation of one of five populations of the eastern hellbender in Missouri and the declining condition of the remaining four populations. Of the four remaining populations, none are currently healthy, contributing to their low resiliency. The lack of healthy populations, the limited spatial extent of the Missouri DPS and the likely functional loss of population(s) in the event of a catastrophic event greatly reduce the DPS's resiliency and redundancy (the ability of a species to withstand normal environmental variation, periodic disturbances, stressors, and catastrophes currently and into the future). Based on threats currently affecting the Missouri DPS, we expect all populations to continue to decline in health (Service 2018, Chapter 6). Additionally, under two out of three future scenarios, we expect an additional population to become extirpated within 10 years (Service 2018, Chapter 6).

Population resiliency is low due to the unhealthy condition of the four remaining populations of the Missouri DPS of eastern hellbender. The functional loss of a population has decreased the overall redundancy of the DPS and the limited geographic extent (5 streams closely located to one another) of the DPS leads to low overall redundancy as well.

The eastern hellbender SSA report (Service 2018, entire) contains a more detailed discussion of our evaluation of the biological status of the eastern hellbender in Missouri and the influences that may affect its continued existence. Our conclusions are based upon the best available scientific and commercial data, including the expert opinion of the species' experts (fishery biologists, aquatic ecologists, and geneticists from State and Federal agencies and academic institutions) and the SSA team members. Please see the proposed listing rule and its supporting materials for a complete list of the species experts and peer reviewers and their affiliations (84 FR 13231, April 4, 2019; Docket No. FWS-R3-ES-2018-0056).

In the April 4, 2019, proposed rule (84 FR 13223), we requested that all interested parties submit written comments on the proposal by June 3, 2019. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. We did not receive any requests for a public hearing.

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review actions under the Act (16 U.S.C. 1531 et seq. ), we solicited expert opinion from five knowledgeable individuals with scientific expertise that included familiarity with the eastern hellbender and its habitat, biological needs, and threats. We received responses from two peer reviewers.

We updated the SSA report based on the peer reviewer's comments. The changes consisted of clarifications and corrections to the SSA report, including typographical edits, and incorporation of omitted references.

We received eight public comments on the proposed rule and more than five thousand form letters expressing support for the listing of the eastern hellbender under the Act. One of the comments received during the public comment period did not address or provide any information concerning the Missouri DPS of the eastern hellbender. The remaining commenters did not provide substantive comments or new information concerning the proposed listing of the Missouri DPS of the eastern hellbender. We note the SSA report, a list of literature referenced, the public comments and the peer reviewer reports, all of which helped inform this listing decision, are available to the public on http://www.regulations.gov under Docket No. FWS-R3-ES-2018-0056.

(1) Comment: A commenter suggested that, when making a final determination, the Service should consider all feedback it receives at the 2019 Hellbender Symposium, a biennial gathering of researchers and species experts from across the country.

Our Response: We received no new information at the symposium pertaining to the Missouri DPS of the eastern hellbender.

Two public commenters expressed opposition to the Service's proposed determination not to designate critical habitat for the eastern hellbender. These comments were generally centered on five main topics and are addressed individually below.

(2) Comment: The commenters opined that information in the SSA report demonstrates that collection pressure is among the least influential of the primary factors impacting population health in Missouri; whereas sedimentation and water quality impairment are the two strongest and together make up 32 percent of the relative influence of all factors on population status. This information suggests that concerns about Federal activities that may degrade habitat and water quality dramatically outweigh concerns about collection pressure.

Our Response: The commenters stated that collection pressure was not ranked as a factor currently having a high influence on eastern hellbender population health in Missouri because various measures have been implemented to restrict the disclosure of specific locations of occupied sites. If the exact location of occupied sites were publically available, we expect the threat of illegal collection would be much higher. Collection, as a threat, is discussed further above in the Summary of Biological Status and Threats section and the SSA report (Service 2018, pp. 48-50)

(3) Comment: The commenters stated that designating critical habitat would not increase the risk of unlawful eastern hellbender collection because eastern hellbender locations are already widely available on the internet via articles published in scientific journals. These articles and other sources identify waterways where eastern hellbenders live and include maps, verbal descriptions, and capture techniques.

Our Response: Though the streams in which eastern hellbenders occur are readily available to the public, the identification of these streams does not provide sufficient detail to facilitate illegal collection. Disclosure of the exact location of occupied sites within these rivers, however, would facilitate illegal collection. Therefore, disclosure of this information to the public is limited. The exact location of some sites has been published in scientific journals, but these sites constitute only a small proportion of the total number of sites occupied by eastern hellbenders, and species experts now recommend that exact locations no longer be published due to the threat of illegal collection. The designation of critical habitat would result in publishing of site-specific information and maps in the Federal Register . The Service is already aware of instances in which the publication of locality information for Ozark hellbender ( Cryptobranchus alleganiensis bishopi ) occupied sites resulted in the removal of almost all individuals from the location. Thus, we have concluded that publishing location information for eastern hellbender would further facilitate illegal collection and result in similar consequences.

(4) Comment: The commenters stated that designating critical habitat would not increase the risk of unlawful eastern hellbender collection because the Service can designate critical habitat without revealing exact locations of eastern hellbenders.

Our Response: When designating critical habitat, the Service must determine the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. Essential physical and biological features are the features that occur in specific areas and that are essential to support the life-history needs of the species. Appropriate cover rocks or other crevices are necessary features to fulfill the life-cycle needs of the eastern hellbender because they provide protection and nesting habitat. Stream reaches with suitable habitat for the eastern hellbender are not continuous, and areas with suitable habitat are often separated by miles (kilometers) of unsuitable habitat (data from mark-recapture studies indicate that hellbenders rarely move between sites). Therefore, by mapping the critical habitat and describing the physical and biological features essential to the conservation of the species, the Service would disclose the specific location of occupied sites and subject the Missouri DPS of eastern hellbenders to collection.

(5) Comment: The commenters stated that designating critical habitat would provide significant benefits to the eastern hellbender because the Act imposes an additional consultation requirement where an action will result in the “destruction or adverse modification” of critical habitat.

Our Response: In consultations for species with critical habitat, Federal agencies are required to ensure that their activities do not destroy or adversely modify critical habitat. However, once a species is listed under the Act, the provisions prohibiting take come into effect where the species is present. In most cases, “take” refers to a direct effect on an individual of the species. “Take” may also apply to actions that result in modification of the habitat of the species where such modification may be considered to constitute “harm” to the listed species. These prohibitions are completely independent of the designation of critical habitat. That is, the prohibition against take of the listed species applies regardless of whether critical habitat is designated. Although eastern hellbenders are considered functionally extirpated in one population within the Missouri DPS, species experts believe that a small number of individuals may still be present. Thus, there are no areas within the eastern hellbender range in the Missouri DPS that are considered unoccupied and for which section 7 consultation would not apply.

(6) Comment: The commenters stated that given the predicted future impacts to habitat throughout the MACU, the benefits of critical habitat designation far outweigh any concerns about additional collection pressure in the MACU. Even when there is no Federal nexus requiring consultation, critical habitat has value because it educates landowners, State and local governments, and the public about the conservation value of an area.

Our Response: The benefits provided by the designation of critical habitat can duplicate those already provided to the species without the designation of critical habitat by the “jeopardy standard,” especially in the cases of species with smaller ranges. The Service recognizes that, in some instances, designation of critical habitat could provide some benefits to the Missouri DPS of the eastern hellbender. However, these benefits do not outweigh the increased illegal collection that is likely to occur if critical habitat maps are published and the specific locations of currently occupied sites are disclosed.

We received a comment letter from the State of Missouri Department of Conservation that supported our decision to seek Federal listing of the Missouri DPS of the eastern hellbender. The State also expressed agreement with our finding that the designation of critical habitat was not prudent. They did not provide further substantive information during the comment period that would influence a change in the Service's decision from the proposed rule.

As discussed above, we made no changes to this final rule after consideration of the comments we received.

Please see our proposed listing rule for the Missouri DPS of the eastern hellbender published on April 4, 2019, for the full description of our DPS analysis (84 FR 13223). We did not receive substantive additional information during the open comment period regarding whether or not the Missouri DPS of eastern hellbender is a valid distinct population segment.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of “endangered species” or “threatened species.” The Act defines an “endangered species” as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a “threatened species” as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether a species meets the definition of “endangered species” or “threatened species” because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. For a more detailed discussion on the factors considered when determining whether a species meets the definition of “endangered species” or “threatened species” and our analysis on how we determine the foreseeable future in making these decisions, please see the Regulatory Framework section above.

After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Missouri DPS of the eastern hellbender. Our analysis of this information indicates that the most important risk factors affecting the eastern hellbender's current and future status and trends in Missouri are habitat destruction and modification from sedimentation and water quality degradation (Factor A), disease and pathogens (Factor C), and habitat disturbance (Factor A), and these factors are the primary causes of the decrease in the population health within the Missouri DPS of eastern hellbender now and into the future. The unauthorized collection of eastern hellbenders, especially for the pet trade (Factor B), remains a concern. Other factors, such as an overabundance of predators (Factor C) or population isolation (Factor E), are also affecting the Missouri DPS of eastern hellbenders but to a lesser degree. Although conservation efforts, such as population augmentation, artificial nest boxes, and listing under the Convention on International Trade in Endangered Species of Fauna and Flora, are being implemented, it is unclear if they will improve population viability in the long term.

Populations of Missouri DPS eastern hellbender have declined as much as 77 percent over a twenty year period in the Big Piney River, Gasconade River and Niangua River (Wheeler et al. 2003, pg. 155). The threats described above have already resulted in the functional extirpation of one of five populations of the eastern hellbender in Missouri and the declining condition of the remaining four populations. The lack of healthy populations, the limited spatial extent of the Missouri DPS and the likely loss of population(s) in the event of a catastrophic event greatly reduce the DPS's resiliency and redundancy (the ability of eastern hellbenders to withstand normal environmental variation, periodic disturbances, stressors, and catastrophes currently and into the future). Based on threats currently affecting the Missouri DPS, we expect all populations to continue to decline in health (Service 2018, Chapter 6). Additionally, under two out of three future scenarios, we expect an additional population to become extirpated within 10 years (Service 2018, Chapter 6). Thus, after assessing the best available information, we determine that the Missouri DPS of the eastern hellbender is in danger of extinction throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. We have determined that the Missouri DPS of the eastern hellbender is in danger of extinction throughout all of its range, and accordingly, did not undertake an analysis of any significant portion of its range. Because we have determined that the Missouri DPS of the eastern hellbender warrants listing as endangered throughout all of its range, our determination is consistent with the decision in Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020), in which the court vacated the aspect of the 2014 Significant Portion of its Range Policy that provided the Services do not undertake an analysis of significant portions of a species' range if the species warrants listing as threatened throughout all of its range.

Our review of the best available scientific and commercial information indicates that the Missouri DPS of the eastern hellbender meets the definition of an endangered species. Therefore, we are listing the Missouri DPS of the eastern hellbender as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies; private organizations; and individuals. The Act encourages cooperation with the States and other countries, and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

Recovery planning consists of preparing draft and final recovery plans, beginning with the development of a recovery outline and making it available to the public within 30 days of a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for delisting, and methods for monitoring recovery progress, which may include downlisting criteria when appropriate. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website ( http://www.fws.gov/endangered ), or from our Missouri Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Implementation of recovery actions generally needs the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include addressing factors contributing to sedimentation ( e.g., streambank stabilization, restoring riparian corridors, excluding cattle from streams), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.

Now that the Missouri DPS of the eastern hellbender listing is final, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Missouri will be eligible for Federal funds to implement management actions that promote the protection or recovery of the Missouri DPS of the eastern hellbender. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

Please let us know if you are interested in participating in recovery efforts for the Missouri DPS of the eastern hellbender. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a proposed threatened or endangered species or result in destruction or adverse modification of its proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

Federal agency actions within the range of the Missouri DPS of the eastern hellbender habitat that may require consultation as described in the preceding paragraph include, but are not limited to, management and any other landscape-altering activities, particularly those affecting water quality or instream habitat, on Federal lands administered by the U.S. Forest Service and Department of Defense; issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq. ) permits by the U.S. Army Corps of Engineers; and construction and maintenance of roads or highways by the Federal Highway Administration.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a final listing on proposed and ongoing activities within the range of a listed species.

Based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive:

(1) Activities authorized, funded, or carried out by Federal agencies, when such activities are conducted in accordance with an incidental take statement issued by us under section 7 of the Act;

(2) Any action carried out for scientific research or to enhance the propagation or survival of the Missouri DPS of the eastern hellbender that is conducted in accordance with the conditions of a permit issued by the Service under 50 CFR 17.22; and

(3) Any incidental take of Missouri eastern hellbenders resulting from an otherwise lawful activity conducted in accordance with the conditions of an incidental take permit issued by the Service under 50 CFR 17.22. Non-Federal applicants may design a habitat conservation plan (HCP) for the DPS and apply for an incidental take permit. HCPs may be developed for listed species and are designed to minimize and mitigate impacts to the species to the maximum extent practicable.

We will review other activities not identified above on a case-by-case basis to determine whether they may be likely to result in a violation of section 9 of the Act. We do not consider these lists to be exhaustive and provide them as information to the public.

Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act; this list is not comprehensive:

(1) Unauthorized killing, collecting, handling, or harassing of individual eastern hellbenders at any life stage in Missouri;

(2) Sale or offer for sale of any Missouri eastern hellbender, as well as delivering, receiving, carrying, transporting, or shipping any Missouri eastern hellbender in interstate or foreign commerce and in the course of a commercial activity;

(3) Unauthorized destruction or alteration of the DPS' habitat (for example, instream dredging, channelizing, impounding of water, streambank clearing, removing large rocks from or flipping large rocks within streams, discharging fill material) that actually kills or injures individual eastern hellbenders in Missouri by significantly impairing their essential behavioral patterns, including breeding, feeding, or sheltering;

(4) Any discharge or water withdrawal within the DPS' occupied range that results in the death or injury of individual eastern hellbenders by significantly impairing their essential behavioral patterns, including breeding, feeding, or sheltering; and

(5) Discharge or dumping of toxic chemicals or other pollutants into waters supporting the DPS that actually kills or injures individual eastern hellbenders by significantly impairing their essential behavioral patterns, including breeding, feeding, or sheltering.

Questions regarding whether specific activities might constitute a violation of section 9 of the Act should be directed to the Missouri Ecological Services Field Office, 101 Park DeVille Drive, Suite A, Columbia, MO 65203; telephone 573-234-2132.

In our proposed listing rule for the Missouri DPS of the eastern hellbender we found that designating critical habitat was not prudent, in accordance with 50 CFR 424.12(a)(1), because the Missouri DPS faces a threat of unauthorized collection and trade, and designation can reasonably be expected to increase the degree of these threats to the DPS. Please refer to the proposed rule for the full prudency determination analysis (84 FR 13223, April 4, 2019; Docket No. FWS-R3-ES-2018-0056).

On August 27, 2019, we published a final rule in the Federal Register (84 FR 45020) to amend our regulations concerning the procedures and criteria we use to designate and revise critical habitat. That rule became effective on September 26, 2019, but, as stated in that rule, the amendments it sets forth apply to “rules for which a proposed rule was published after September 26, 2019.” We published our proposed critical habitat designation for the Missouri DPS of the eastern hellbender on April 4, 2019 (84 FR 13223); therefore, the amendments set forth in the August 27, 2019, final rule at 84 FR 45020 do not apply to this final determination regarding critical habitat for the Missouri DPS of the eastern hellbender.

The Service's 2019 revisions to 50 CFR 424.12 did not change the language that allows us to determine that critical habitat may not be prudent if “the species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species.” The Service relied upon this language in making the prudency determination for designation of critical habitat for the Missouri DPS of eastern hellbender.

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ), need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. We have no records of the Missouri DPS of the eastern hellbender occurring on tribal lands.

A complete list of references cited in this final rule is available on the internet at http://www.regulations.gov and upon request from the Missouri Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this final rule are the staff members of the Service's Great Lakes Regional Office and the Columbia, Missouri, Ecological Services Field Office.

Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

The IPHC has recommended regulations that would govern the Pacific halibut fishery in 2021, pursuant to the Convention between Canada and the United States for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Convention), signed at Ottawa, Ontario, on March 2, 1953, as amended by a Protocol Amending the Convention (signed at Washington, DC, on March 29, 1979).

As provided by the Northern Pacific Halibut Act of 1982 (Halibut Act) at 16 U.S.C. 773b, the Secretary of State, with the concurrence of the Secretary of Commerce, may accept or reject, on behalf of the United States, regulations recommended by the IPHC in accordance with the Convention (Halibut Act, Sections 773-773k). The Secretary of State, with the concurrence of the Secretary of Commerce, accepted the 2021 IPHC regulations as provided by the Halibut Act.

The Halibut Act provides the Secretary of Commerce with the authority and general responsibility to carry out the requirements of the Convention and the Halibut Act. The Regional Fishery Management Councils may develop, and the Secretary of Commerce may implement, regulations governing harvesting privileges among U.S. fishermen in U.S. waters that are in addition to, and not in conflict with, approved IPHC regulations. The NPFMC has exercised this authority in developing halibut management programs for three fisheries that harvest halibut in Alaska: the subsistence, sport, and commercial fisheries. The PFMC has exercised this authority by developing a catch sharing plan governing the allocation of halibut and management of sport fisheries on the U.S. West Coast.

The IPHC apportions catch limits for the Pacific halibut fishery among regulatory areas (Figure 1): Area 2A (Oregon, Washington, and California), Area 2B (British Columbia), Area 2C (Southeast Alaska), Area 3A (Central Gulf of Alaska), Area 3B (Western Gulf of Alaska), and Area 4 (subdivided into 5 areas, 4A through 4E, in the Bering Sea and Aleutian Islands of Western Alaska).

Subsistence and sport halibut fishery regulations for Alaska are codified at 50 CFR part 300. Commercial halibut fisheries off Alaska are subject to the Individual Fishing Quota (IFQ) Program and Community Development Quota (CDQ) Program (50 CFR part 679) regulations, and the area-specific catch sharing plans (CSPs) for Areas 2C, 3A, and Areas 4C, 4D, and 4E.

The NPFMC implemented a CSP among commercial IFQ and CDQ halibut fisheries in IPHC Regulatory Areas 4C, 4D, and 4E (Area 4, Western Alaska) through rulemaking, and the Secretary of Commerce approved the plan on March 20, 1996 (61 FR 11337). The Area 4 CSP regulations were codified at 50 CFR 300.65, and were amended on March 17, 1998 (63 FR 13000). New annual regulations pertaining to the Area 4 CSP also may be implemented through IPHC action, subject to acceptance by the Secretary of State.

The NPFMC recommended and NMFS implemented through rulemaking a CSP for guided sport (charter) and commercial IFQ halibut fisheries in IPHC Regulatory Area 2C and Area 3A on January 13, 2014 (78 FR 75844, December 12, 2013). The Area 2C and 3A CSP regulations are codified at 50 CFR 300.65. The CSP defines an annual process for allocating halibut between the commercial and charter fisheries so that each sector's allocation varies in proportion to halibut abundance, specifies a public process for setting annual management measures, and authorizes limited annual leases of commercial IFQ for use in the charter fishery as guided angler fish (GAF).

The IPHC held its annual meeting remotely by video conference on January 25 through 29, 2021, and recommended a number of changes to the previous IPHC regulations (85 FR 14586, March 13, 2020, and revisions at 85 FR 37024, June 19, 2020). The Secretary of State accepted the annual management measures, including the following changes to sections of the 2021 IPHC regulations:

1. New commercial halibut fishery opening and closing dates in Section 9;

2. Minor changes to Section 12 to ensure the regulatory text of that section aligns with the fishing season dates established in Section 9;

3. New halibut catch limits in all regulatory areas. The catch limits are presented in two tables in Section 5 that distinguish between limits resulting from Commission decisions and those that are from catch limits that are the responsibility of the respective United States and Canada governments;

4. New management measures for Area 2C and Area 3A guided sport fisheries in Section 29; and

5. An addition to regulatory language in Section 22 to clarify that authorized representatives of the IPHC may sample halibut that are being unloaded and weighed.

Pursuant to regulations at 50 CFR 300.62, the 2021 IPHC annual management measures are published in the Federal Register to provide notice of their regulatory effectiveness and to inform persons subject to the regulations of their restrictions and requirements. Because NMFS publishes the regulations applicable to the entire Convention area, these regulations include some provisions relating to and affecting Canadian fishing and fisheries. NMFS may implement more restrictive regulations for the fishery for halibut or components of it; therefore, anglers are advised to check the current Federal and IPHC regulations prior to fishing.

The IPHC recommended to the governments of Canada and the United States fishery catch limits (FCEY) for 2021 totaling 30,340,000 lb (17,661.99 mt). Overall, this represents a 10.4 percent increase over catch limits implemented in 2020. The catch limits in most regulatory areas increased, with the exception of the combined Areas 4CDE, which decreased slightly relative to the 2020 catch limits. A description of the process the IPHC used to set these catch limits follows.

In 2020, the IPHC conducted its annual stock assessment using a range of updated data sources as described in detail in the IPHC overview of data sources for the Pacific halibut stock assessment, harvest policy, and related analyses (IPHC-2021-AM097-06; available at www.iphc.int ). To evaluate the Pacific halibut stock, the IPHC used an “ensemble” of four equally weighted models, comprised of two long time-series models, and two short time-series models incorporating data from 1996 to the present. Each time-series length used data series that are divided either by four geographical regions or aggregated into coastwide summaries. These models incorporate data from the 2020 IPHC Fishery Independent Setline Survey (FISS), the 2020 commercial halibut fishery, the most recent NMFS trawl survey, sex-specific recreational age composition data from Area 3A, weight-at-age and male/female sex ratio estimates by region in the directed commercial fisheries and in the FISS, commercial fishery logbook information, and age distribution information for bycatch, sport, and sublegal discard removals.

As has been the case since 2012, the results of the ensemble models are integrated and incorporate uncertainty in natural mortality rates, environmental effects on recruitment, and other structural and parameter categories. The data and assessment models used by the IPHC are reviewed by the IPHC's Scientific Review Board comprised of non-IPHC scientists who provide an independent scientific review of the stock assessment data and models and provide recommendations to IPHC staff and to the Commissioners. The Scientific Review Board did not identify any substantive errors in the data or methods used in the 2021 stock assessment. NMFS believes the IPHC's data and assessments models constitute best available science on the status of the Pacific halibut resource.

The IPHC's data, including the FISS, indicate that the Pacific halibut stock declined continuously from the late 1990s to around 2012, largely as a result of decreasing size at a given age (size-at-age), higher harvest rates in early 2000s, as well as somewhat weaker recruitment strengths than those observed during the 1980s. Results from the 2020 stock assessment incorporate data from an expansion of the FISS throughout the survey range over the 2011-2019 period. Among other things, improvements in the setline spatial coverage have helped gain a greater understanding of the degree of spatial and temporal Pacific halibut density, and has helped reduce the uncertainty in the weight per unit effort (WPUE) and number per unit effort (NPUE) indices.

Overall, the biomass of spawning females is estimated to have increased gradually to 2016, then decreased to approximately 192,000,000 lb (87,243.96 mt) at the beginning of 2021. This level is currently estimated to be 33 percent (with a 95% credible interval of 22% to 52%) of unfished levels. This estimate reflects updated calculations recommended during stock assessment external review and review by the Scientific Review Board, as well as developments in the IPHC Management Strategy Evaluation.

The IPHC's current interim management procedure strives to maintain the total mortality of halibut across its range from all sources based on a reference level of fishing intensity so that the Spawning Potential Ratio (SPR) is equal to 43 percent. The reference fishing intensity of F43 percent SPR seeks to allow a level of fishing intensity that is expected to result in approximately 43 percent of the spawning stock biomass per recruit compared to an unfished stock ( i.e., no fishing mortality). Lower values indicate higher fishing intensity. The 2020 stock assessment and estimates of fishing intensity were enhanced by newly available data on the male/female sex ratio for the 2019 commercial fishery landings. Combined with similar data collected from the 2017 and 2018 commercial fisheries, the refined and quantified information on the sex ratio affected the treatment of the stock assessment data for the directed commercial fishery in the stock assessment models; it did not change the treatment or sex ratio estimates of mortalities associated with the recreational, subsistence, or non-directed halibut fisheries. Additional information on the status of the halibut resource under these catch limit alternatives is provided in the Analysis (see ADDRESSES ).

The IPHC harvest decision table (Table 3 in: Summary of the Data, Stock Assessment, and Harvest Decision Table for the Pacific Halibut Stock at the End of 2020; IPHC-2021-AM097-08) provides a comparison of the relative risk of a decrease in stock biomass, status, or fishery metrics, for a range of alternative harvest levels for 2021. The harvest decision table employs two metrics of fishing mortality: (1) The Total Constant Exploitation Yield (TCEY), which includes harvests and incidental wastage from directed commercial fisheries, plus mortality estimates from sport, subsistence, personal use, and estimates of non-directed discard mortality of halibut over 26 inches; and, (2) Total Mortality, which includes all the above sources of mortality, plus estimates of non-directed discard mortality of halibut less than 26 inches (U26). Although U26 halibut mortality is factored into the stock assessment and harvest strategy calculations, there is currently no reliable tool for describing the annual distribution of halibut under 26 inches across the entire coastwide area.

For 2021, the IPHC adopted a TCEY totaling 39,000,000 lb (17,690.10 mt) coastwide. This corresponds to a fishing intensity of approximately F43 percent, which is similar to the projected fishing intensity of approximately F42 percent used by the IPHC to establish the 2020 TCEY. The 2021 TCEY is 2,400,000 lb (1,088.62 mt) greater than the TCEY adopted in 2020.

The IPHC noted this management approach represents a relatively conservative level of harvest that considers the inherent uncertainties in the stock assessment models. The IPHC notes that under a broad range of catch limits, including highly restrictive catch limits, the halibut stock is likely to experience a continued decrease in spawning stock biomass given the best available scientific information. In making its recommendation, the IPHC considered likely stock status, and uncertainties in the status of the stock as well as the significant social and economic impacts of catch limits among areas.

At a 39,000,000 lb TCEY, the IPHC estimates that the spawning stock biomass will likely decrease over the period from 2022 to 2024 relative to 2021. Specifically, the IPHC estimates there is a 65 percent probability that the spawning stock biomass will decrease in 2022 relative to 2021, and that there is a 39 percent probability that the decrease in 2022 will be at least 5 percent of the 2021 spawning stock biomass. The factors that the IPHC considered in making their TCEY recommendations are described in the 2021 Annual Meeting Report (IPHC-2021-AM097_R) and the key recommendations are briefly summarized here.

This final rule does not establish the combined commercial and recreational catch limit for Area 2B (British Columbia), which is subject to rulemaking by the Canada and British Columbia governments. However, the IPHC's recommendation for the Area 2B catch limit is directly related to the current and future U.S. catch limits established by this final rule and is therefore discussed herein. The IPHC recommended a 2021 TCEY of 7,000,000 lb (3,175.15 mt) for Area 2B, which equates to 19.1 percent of the total coastwide TCEY. The IPHC made this recommendation after considering recent historic harvests in Area 2B, the distribution of the TCEY in Area 2B as estimated from the FISS under the current interim management procedure, and other factors described in the 2021 IPHC Annual Meeting Report (IPHC-2021-AM097_R).

The IPHC recommended an allocation to Area 2A that would provide a TCEY of 1,650,000 lb (748.43 mt) with a combined commercial, subsistence, and recreational catch limit of 1,510,000 lb (684.92 mt). This allocation is larger than the catch limit that would apply to Area 2A under the adopted fishing intensity of F43 percent and the proportion of the stock as estimated from the FISS under the current interim management procedure. To achieve the Area 2A and Area 2B allocations and still maintain the target coastwide fishing intensity of F43 percent, the IPHC recommended an overall reduction in catch limits in other IPHC regulatory areas in U.S. waters that are intended to maintain total mortality to the adopted fishing intensity of F43 percent.

After the allocations for Areas 2A and 2B are accounted for, the IPHC apportioned the remaining TCEY to the Alaska regulatory areas (Areas 2C through Area 4) after considering the distribution of harvestable biomass of halibut based on the Fishery Independent Setline Survey, as well as 2020 harvest rates, the recommendations from the IPHC's advisory boards, public input, and social and economic factors. The only U.S. area with a decreased TCEY relative to 2020 is Area 2C (−0.9 percent; see Table 1). Areas 3A, 4A, 4B, and 4CDE received increases over 2020 levels that ranged from +2.5 percent in Areas 4CDE to +17.1 percent in Area 4A. The TCEY in Area 3B remained the same for 2021 as in 2020. The IPHC determined that the 2021 catch limit recommendations are consistent with its conservation objectives for the halibut stock and its management objectives for the halibut fisheries.

The IPHC also considered the Catch Sharing Plan for Area 4CDE developed by the NPFMC in its catch limit recommendation. The Area 4CDE catch limit is determined by subtracting estimates of the Area 4CDE subsistence harvests, commercial discard mortality, and non-directed discard mortality of halibut over 26 inches from the area TCEY. When the resulting Area 4CDE catch limit is greater than 1,657,600 lb (751.87 mt), a direct allocation of 80,000 lb (36.29 mt) is made to Area 4E to provide CDQ fishermen in that area with additional harvesting opportunity. After this 80,000 lb allocation is deducted from the catch limit, the remainder is divided among Areas 4C, 4D, and 4E according to the percentages specified in the CSP. Those percentages are 46.43 percent each to 4C and 4D, and 7.14 percent to 4E. For 2021, the IPHC recommended a catch limit for Area 4CDE of 1,670,000 lb (757.50 mt).

The IPHC considers advice from the IPHC's two advisory boards, as well as direct testimony from the public, when selecting opening and closing dates for the commercial halibut fishery. The opening date for all IPHC regulatory areas is March 6, 2021, which is eight days earlier than the 2020 opening date of March 14. The closing date for the commercial halibut fisheries in all regulatory areas is December 7, 2021, which is 22 days later than the 2020 closing date of November 15. By adopting a longer fishing season, the IPHC was persuaded by considerable public testimony that cited the increased harvest flexibility and potential market advantages of a longer season. No detrimental conservation effects were identified by the change. The new dates also take into account the anticipated time required to fully harvest the commercial halibut catch limits, seasonal holidays, and adequate time for IPHC staff to review the complete record of 2021 commercial catch data for use in the stock assessment process. It also takes into account the administrative tasks that are linked to halibut regulations developed independently by the domestic partners.

For Area 2A, the IPHC recommended that the non-treaty directed commercial fishery will open for 58 hours, beginning at 0800 hours on June 22 and closing at 1800 hours on June 24. After this first opening, if the IPHC determines that the fishing limit has not been exceeded, it may announce a second fishing period of up to three fishing days to begin on Tuesday two weeks after the first period. Specific fishing period limits (vessel quota) will be determined and communicated by IPHC.

The NMFS West Coast Region has published a proposed rule to approve the Pacific Halibut Catch Sharing Plan (CSP) for Area 2A off Washington, Oregon, and California and implement annual management measures for Area 2A as recommended by the PFMC in the CSP. These annual management measures include the sport fishery allocations and management measures for Area 2A which are not implemented through the IPHC. Public comments will be accepted for 30 days following publication of the proposed rule and NMFS will address any comments received in a final rule. The proposed and final rules for the Area 2A CSP will be available on the NOAA Fisheries West Coast Region's website at https://www.fisheries.noaa.gov/action/2021-pacific-halibut-catch-sharing-plan and also at www.regulations.gov.

In 2014, NMFS implemented a CSP for Area 2C and Area 3A. The CSP defines an annual process for allocating halibut between the charter and commercial fisheries in Area 2C and Area 3A, and establishes allocations for each fishery. To allow flexibility for individual commercial and charter fishery participants, the CSP also authorizes annual transfers of commercial halibut IFQ as GAF to charter halibut permit holders for harvest in the charter fishery. Under the CSP, the IPHC recommends combined catch limits (CCLs) for the charter and commercial halibut fisheries in Area 2C and Area 3A. Each CCL includes estimates of discard mortality (wastage) for each fishery. The CSP was implemented to achieve the halibut fishery management goals of the NPFMC. More information is provided in the final rule implementing the CSP (78 FR 75844, December 12, 2013). Implementing regulations for the CSP are at 50 CFR 300.65. The Area 2C and Area 3A CSP allocation tables are located in Tables 1 through 4 of subpart E of 50 CFR part 300.

At its January 2021 meeting, the IPHC recommended a CCL of 4,410,000 lb (2,000.34 mt) for Area 2C. Following the CSP allocations in Tables 1 and 3 of subpart E of 50 CFR part 300, the charter fishery is allocated 810,000 lb (367.41 mt) of the CCL and the remainder of the CCL, 3,600,000 lb (1,632.93 mt), is allocated to the commercial fishery. Wastage in the amount of 70,000 lb (31.75 mt) was deducted from the commercial allocation to obtain the commercial catch limit of 3,530,000 lb (1,601.18 mt). The commercial allocation (including wastage) increased by 120,000 lb (54.43 mt) or 3.4 percent, from the 2020 allocation of 3,480,000 lb (1,578.50 mt). The charter allocation for 2021 increased by 30,000 lb (13.60 mt), or 3.8 percent more than the 2020 charter sector allocation of 780,000 lb (353.80 mt).

The IPHC recommended a CCL of 11,140,000 lb (5,053.02 mt) for Area 3A. Following the CSP allocations in Tables 2 and 4 of subpart E of 50 CFR part 300, the charter fishery is allocated 1,950,000 lb (885.51.64 mt) of the CCL and the remainder of the CCL, 9,190,000 lb (4,168.51 mt), is allocated to the commercial fishery. Wastage in the amount of 240,000 lb (108.86 mt) was deducted from the commercial allocation to obtain the commercial catch limit of 8,950,000 lb (4,059.65 mt). The commercial allocation (including wastage) increased by about 1,850,000 lb (839.15 mt) or 25.2 percent, from the 2020 allocation of 7,340,000 lb (3,329.37 mt). The charter allocation increased by 240,000 lb (108.86 mt), or 14.0 percent, from the 2020 allocation of 1,710,000 lb (775.65 mt).

Guided (charter) recreational halibut anglers are managed under different regulations than unguided recreational halibut anglers in Areas 2C and 3A in Alaska. According to Federal regulations at 50 CFR 300.61, a charter vessel angler means a person, paying or non-paying, receiving sport fishing guide services for halibut. Sport fishing guide services means assistance, for compensation or with the intent to receive compensation, to a person who is sport fishing, to take or attempt to take halibut by accompanying or physically directing the sport fisherman in sport fishing activities during any part of a charter vessel fishing trip. A charter vessel fishing trip is the time period between the first deployment of fishing gear into the water from a charter vessel by a charter vessel angler and the offloading of one or more charter vessel anglers or any halibut from that vessel. The charter fishery regulations described below apply only to charter vessel anglers receiving sport fishing guide services during a charter vessel fishing trip for halibut in Area 2C or Area 3A. These regulations do not apply to unguided recreational anglers in any regulatory area in Alaska, or guided anglers in areas other than Areas 2C and 3A.

The NPFMC formed the Charter Halibut Management Committee as an industry advisory body to provide recommendations for annual management measures intended to limit charter harvest to the charter catch allocation. The committee is composed of representatives from the charter fishing industry in Areas 2C and 3A.

The 2020 charter fishing season was greatly impacted by the coronavirus pandemic and the resulting unexpected and substantial drop in fishing effort, which in turn affected the anticipated results of the pre-season analysis and adopted management measures for that year. In May and June of 2020, the NPFMC and IPHC responded with revised management measures that were published on June 19, 2020 (85 FR 37024). The revised management measures relaxed the halibut size limits in both Area 2C and 3A, and in Area 3A the new regulations rescinded an annual limit on retained halibut and allowed halibut retention on all days of the week. Preliminary estimates indicate that the final 2020 charter halibut harvests were 36.0 percent below the Area 2C allocation, and 6.6 percent below the Area 3A allocation.

In November 2020, the Charter Halibut Management Committee began the process of reviewing the analysis for various alternatives for the upcoming 2021 fishing year. Because the 2021 charter season was expected to be similarly impacted by reduced charter angler effort as the 2020 season, the Committee requested the analysis should contain elements that would allow a consideration of options that could address this likelihood. After reviewing all the analyses of the effects of the alternative measures on estimated charter removals, the committee made conservative recommendations for preferred management measures to the NPFMC for 2021 that are intended to provide harvest opportunity and stimulate charter business while also maintaining total charter harvests within the 2021 allocations for both Areas 2C and 3A. The NPFMC considered the recommendations of the committee along with public testimony to develop its recommendation to the IPHC, and the IPHC took action consistent with the NPFMC's recommendations. The NPFMC has used this process to select and recommend annual management measures to the IPHC since 2012.

The IPHC recognizes the role of the NPFMC to develop policy and regulations that allocate the Pacific halibut resource among fishermen in and off Alaska, and that NMFS has developed numerous regulations to support the NPFMC's goals of limiting charter harvests. For 2021, the IPHC concluded that in Area 3A, with a 14 percent increase in the catch limit from 2020, and factoring in a drop in fishing effort relative to years prior to 2020, the 2021 management measures should be similar to the revised measures adopted in 2020, with the addition of a closure to halibut retention on all Wednesdays. For Area 2C, the 2021 charter catch limits are also higher than 2020. However, the effect of management measures over the 2018-2020 period has resulted in under-harvests of the charter allocation by 18.9 percent, 11.6 percent, and 36.0 percent, respectively. Consequently, the IPHC determined that the charter management measures in Area 2C could be slightly less restrictive than the revised 2020 measures. The IPHC determined that limiting charter harvests by implementing the management measures discussed below would meet the conservation and allocation objectives.

As noted above, the preliminary estimate of 2020 charter removals in Area 2C was below the 2020 charter allocation by 280,465 lb (127.22 mt) or 36.0 percent, indicating that the management measures were effective at limiting harvest by charter vessel anglers to the charter allocation, but given the sharp drop in angler effort in 2020, could have been less restrictive than the revised measures. The two primary management measures in Area 2C in 2020 were a daily bag limit of 1 halibut per charter angler, and size limits where retained halibut were required to be less than or equal to 38 inches (96.5 cm), which was revised in June to 45 inches (114.3 cm), or greater than or equal to 80 inches (203.2 cm). The effect of these regulations was to limit both the number and pounds of retained halibut. The analysis also indicates that in most years since 2014 when the CSP was implemented, the Area 2C harvest has been less than the allocation. When these considerations were balanced with the combined increase in charter allocation in 2021 and a reduced charter angler effort relative to the pre-2020 period, the IPHC concluded that less restrictive management measures for Area 2C in 2021 are appropriate.

Specifically, for 2021 in Area 2C, the IPHC recommended the continuation of a one-fish daily bag limit with a reverse slot limit that prohibits a person on board a charter vessel referred to in 50 CFR 300.65 and fishing in Area 2C from taking or possessing any halibut, with head on, that is greater than 50 inches (127.0 cm) and less than 72 inches (182.9 cm), as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with mouth closed, to the extreme end of the middle of the tail. These measures, combined with a reduction in fishing effort that is estimated to be 35 percent below the pre-2020 levels, are projected to yield 786,000 lb (356.52 mt) of charter removals, which is 24,000 lb (10.87 mt) and 3.0 percent below the charter allocation.

The preliminary estimate of charter removals in Area 3A in 2020 was below the charter allocation by 113,303 lb (51.39 mt), or 6.6 percent. Starting in 2014, charter vessel anglers in Area 3A have been limited to a two-fish daily bag limit with a maximum size limit on one fish. One effect of the maximum size limit has been that the number of fish harvested per angler has steadily decreased, but the average weight of harvested fish has increased as many anglers opted to maximize the size of retained fish.

This final rule changes the revised management measures adopted by the IPHC for the charter halibut fishery in Area 3A in 2020. The NPFMC and IPHC considered information on charter removals in 2020 and for previous years, as well as the projections of charter harvest, and increase in the charter allocation, and a consideration for a reduction in effort in 2021. With this information, the NPFMC and IPHC determined that slightly more restrictive management measures in Area 3A, relative to the revised 2020 measures, were appropriate to limit charter removals to the 2021 allocation.

For 2021, the IPHC recommended the following management measures for Area 3A: (1) A two-fish bag limit with a 32-inch (81.3 cm) maximum size limit on one of the halibut; (2) a one-trip per day limit for charter vessels and for charter halibut permits for the entire season; and, (3) prohibition on halibut retention by charter vessel anglers on all Wednesdays. The projected charter harvest for 2021 under this combination of recommended measures is 1,853,000 lb (840.51 mt), which is 97,000 lb (44.0 mt) and 5.0 percent below the charter allocation. Each of these management measures is described in more detail below.

The 2021 charter halibut fishery in Area 3A will be managed under a two-fish daily bag limit in which one of the retained halibut may be of any size and one of the retained halibut must be 32 inches or less, as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw to the extreme end of the middle of the tail. This is the same as the revised regulations adopted in June 2020, and an increase from a 28 inch (71.1 cm) maximum size limit that was in place from 2016 through 2019. This daily bag and size limit will be combined with additional restrictions to limit charter halibut removals to the 2021 allocation.

Charter halibut permits and charter vessels in 2021 are only authorized for use to catch and retain halibut on one charter halibut fishing trip per day in Area 3A. If no halibut are retained during a charter vessel fishing trip, the charter halibut permit and vessel may be used to take an additional trip to catch and retain halibut that day. These regulations have been in place each year since 2016, and have proven to be effective in controlling halibut harvests.

For purposes of the trip limit in Area 3A in 2021, a charter vessel fishing trip will end when anglers or halibut are offloaded, or at the end of the calendar day, whichever occurs first. Charter operators are still able to conduct overnight trips and anglers may retain a bag limit of halibut on two calendar days, but operators are not allowed to begin another overnight trip until the day after the trip ends. GAF halibut are exempt from the trip limit. Therefore, GAF could be used to harvest halibut on a second trip in a day, but only if exclusively GAF halibut were harvested on that trip.

The NPFMC and the IPHC recommended a closure on retaining halibut by charter vessel anglers on all Wednesdays for Area 3A in 2021. Only the retention of GAF halibut will be allowed on charter vessels on Wednesdays; all other halibut that are caught while fishing on a charter vessel must be released. The Wednesday closures are expected to effectively decrease the charter halibut harvest, relative to previous years.

As noted above, the regulatory text in Section 9 establishes the opening and closing dates of the commercial halibut fishery. Subsections 12(3) and 12(4) address when the fishery shall close, and formerly named a specific date of November 15. The text in subsections 12(3) and 12(4) now refers back to the fishery closure dates established in Section 9, so that the dates in Section 9 and Section 12 are aligned.

To ensure regulatory compliance, Section 22 authorizes officers to supervise the offloading and weighing of halibut from fishing vessels. Section 22 is amended by adding subsection 22(2) to clarify that authorized representatives of the IPHC may also access the offloading and weighing of halibut in order to obtain biological samples.

The following annual management measures for the 2021 Pacific halibut fishery are those recommended by the IPHC and accepted by the Secretary of State, with the concurrence of the Secretary of Commerce.

These Regulations may be cited as the International Pacific Halibut Commission (IPHC) Fishery Regulations (2021).

(1) These Regulations apply to persons and vessels fishing for Pacific halibut in, or possessing Pacific halibut taken from, the maritime area as defined in Section 3.

(2) Sections 3 to 8 and 30 apply generally to all Pacific halibut fishing.

(3) Sections 8 to 23 apply to commercial fishing for Pacific halibut.

(4) Section 24 applies to Indigenous fisheries in British Columbia.

(5) Section 25 applies to customary and traditional fishing in Alaska.

(6) Sections 26 to 29 apply to recreational (also called sport) fishing for Pacific halibut.

(7) These Regulations do not apply to fishing operations authorized or conducted by the Commission for research purposes.

(1) In these Regulations,

(a) “authorized officer” means any State, Federal, or Provincial officer authorized to enforce these Regulations including, but not limited to, the National Marine Fisheries Service (NOAA Fisheries), Department of Fisheries and Oceans (DFO), Alaska Wildlife Troopers (AWT), United States Coast Guard (USCG), Washington Department of Fish and Wildlife (WDFW), the Oregon State Police (OSP), and California Department of Fish and Wildlife (CDFW);

(b) “authorized clearance personnel” means an authorized officer of the United States of America, a representative of the Commission, or a designated fish processor;

(c) “charter vessel” outside of Alaska waters means a vessel used for hire in recreational (sport) fishing for Pacific halibut, but not including a vessel without a hired operator, and in Alaska waters means a vessel used while providing or receiving recreational (sport) fishing guide services for Pacific halibut;

(d) “commercial fishing” means fishing, the resulting catch of which is sold or bartered; or is intended to be sold or bartered, other than (i) recreational (sport) fishing; (ii) treaty Indian ceremonial and subsistence fishing as referred to in section 23, (iii) Indigenous groups fishing in British Columbia as referred to in section 24; and (iv) customary and traditional fishing as referred to in section 25 and defined by and regulated pursuant to NOAA Fisheries regulations published at 50 CFR part 300;

(e) “Commission” or “IPHC” means the International Pacific Halibut Commission;

(f) “daily bag limit” means the maximum number of Pacific halibut a person may take in any calendar day from Convention waters;

(g) “fishing” means the taking, harvesting, or catching of fish, or any activity that can reasonably be expected to result in the taking, harvesting, or catching of fish, including specifically the deployment of any amount or component part of gear anywhere in the maritime area;

(h) “fishing period limit” means the maximum amount of Pacific halibut that may be retained and landed by a vessel during one fishing period;

(i) “land” or “offload” with respect to Pacific halibut, means the removal of Pacific halibut from the catching vessel;

(j) “license” means a Pacific halibut fishing license issued by the Commission pursuant to section 15;

(k) “maritime area,” in respect of the fisheries jurisdiction of a Contracting Party, includes without distinction areas within and seaward of the territorial sea and internal waters of that Party;

(l) “net weight” of a Pacific halibut means the weight of Pacific halibut that is without gills and entrails, head-off, washed, and without ice and slime. If a Pacific halibut is weighed with the head on or with ice and slime, the required conversion factors for calculating net weight are a 2 percent deduction for ice and slime and a 10 percent deduction for the head;

(m) “operator,” with respect to any vessel, means the owner and/or the master or other individual on board and in charge of that vessel;

(n) “overall length” of a vessel means the horizontal distance, rounded to the nearest foot, between the foremost part of the stem and the aftermost part of the stern (excluding bowsprits, rudders, outboard motor brackets, and similar fittings or attachments);

(o) “person” includes an individual, corporation, firm, or association;

(p) “regulatory area” means an IPHC Regulatory Area referred to in section 4;

(q) “setline gear” means one or more stationary, buoyed, and anchored lines with hooks attached;

(r) “sport fishing” or “recreational fishing” means all fishing other than (i) commercial fishing; (ii) treaty Indian ceremonial and subsistence fishing as referred to in section 23; (iii) Indigenous groups fishing in British Columbia as referred to in section 24; and (iv) customary and traditional fishing as referred to in section 25 and defined in and regulated pursuant to NOAA Fisheries regulations published in 50 CFR part 300;

(s) “tender” means any vessel that buys or obtains fish directly from a catching vessel and transports it to a port of landing or fish processor;

(t) “VMS transmitter” means a NOAA Fisheries-approved vessel monitoring system transmitter that automatically determines a vessel's position and transmits it to a NOAA Fisheries-approved communications service provider. 1

(2) In these Regulations, all bearings are true and all positions are determined by the most recent charts issued by the United States National Ocean Service or the Canadian Hydrographic Service.

The following areas within the IPHC Convention waters shall be defined as IPHC Regulatory Areas for the purposes of the Convention (see Figure 1):

(1) IPHC Regulatory Area 2A includes all waters off the states of California, Oregon, and Washington;

(2) IPHC Regulatory Area 2B includes all waters off British Columbia;

(3) IPHC Regulatory Area 2C includes all waters off Alaska that are east of a line running 340° true from Cape Spencer Light (58°11′56″ N latitude, 136°38′26″ W longitude) and south and east of a line running 205° true from said light;

(4) IPHC Regulatory Area 3A includes all waters between Area 2C and a line extending from the most northerly point on Cape Aklek (57°41′15″ N latitude, 155°35′00″ W longitude) to Cape Ikolik (57°17′17″ N latitude, 154°47′18″ W longitude), then along the Kodiak Island coastline to Cape Trinity (56°44′50″ N latitude, 154°08′44″ W longitude), then 140° true;

(5) IPHC Regulatory Area 3B includes all waters between Area 3A and a line extending 150° true from Cape Lutke (54°29′00″ N latitude, 164°20′00″ W longitude) and south of 54°49′00″ N latitude in Isanotski Strait;

(6) IPHC Regulatory Area 4A includes all waters in the Gulf of Alaska west of Area 3B and in the Bering Sea west of the closed area defined in section 10 that are east of 172°00′00″ W longitude and south of 56°20′00″ N latitude;

(7) IPHC Regulatory Area 4B includes all waters in the Bering Sea and the Gulf of Alaska west of IPHC Regulatory Area 4A and south of 56°20′00″ N latitude;

(8) IPHC Regulatory Area 4C includes all waters in the Bering Sea north of IPHC Regulatory Area 4A and north of the closed area defined in section 10 which are east of 171°00′00″ W longitude, south of 58°00′00″ N latitude, and west of 168°00′00″ W longitude;

(9) IPHC Regulatory Area 4D includes all waters in the Bering Sea north of IPHC Regulatory Areas 4A and 4B, north and west of IPHC Regulatory Area 4C, and west of 168°00′00″ W longitude; and

(10) IPHC Regulatory Area 4E includes all waters in the Bering Sea north and east of the closed area defined in section 10, east of 168°00′00″ W longitude, and south of 65°34′00″ N latitude.

(1) The Commission has adopted the following distributed mortality (TCEY) limits:

(2) The fishery limits resulting from the IPHC-adopted distributed mortality (TCEY) limits and the existing Contracting Party catch sharing arrangements are as follows, recognizing that each Contracting Party may implement more restrictive limits:

(1) The Commission is authorized to establish or modify regulations during the season after determining that such action:

(a) Will not result in exceeding the fishery limit established preseason for each IPHC Regulatory Area;

(b) is consistent with the Convention between Canada and the United States of America for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, and applicable domestic law of either Canada or the United States of America; and

(c) is consistent, to the maximum extent practicable, with any domestic catch sharing plans or other domestic allocation programs developed by the governments of Canada or the United States of America.

(2) In-season actions may include, but are not limited to, establishment or modification of the following:

(a) Closed areas;

(b) fishing periods;

(c) fishing period limits;

(d) gear restrictions;

(e) recreational (sport) bag limits;

(f) size limits; or

(g) vessel clearances.

(3) In-season changes will be effective at the time and date specified by the Commission.

(4) The Commission will announce in-season actions under this section by providing notice to major Pacific halibut processors; Federal, State, United States of America treaty Indian, and Provincial fishery officials; and the media.

(1) All Pacific halibut that are caught and are not retained shall be immediately released outboard of the roller and returned to the sea with a minimum of injury by:

(a) Hook straightening;

(b) cutting the gangion near the hook; or

(c) carefully removing the hook by twisting it from the Pacific halibut with a gaff.

(2) Except that paragraph (1) shall not prohibit the possession of Pacific halibut on board a vessel that has been brought aboard to be measured to determine if the applicable size limit of the Pacific halibut is met and, if not legal-sized, is promptly returned to the sea with a minimum of injury.

(1) Nothing contained in these Regulations prohibits any vessel at any time from retaining and landing a Pacific halibut that bears a Commission external tag at the time of capture, if the Pacific halibut with the tag still attached is reported at the time of landing and made available for examination by a representative of the Commission or by an authorized officer.

(2) After examination and removal of the tag by a representative of the Commission or an authorized officer, the Pacific halibut:

(a) May be retained for personal use; or

(b) may be sold only if the Pacific halibut is caught during commercial Pacific halibut fishing and complies with the other commercial fishing provisions of these Regulations.

(3) Any Pacific halibut that bears a Commission external tag will not count against commercial fishing period limits, Individual Vessel Quotas (IVQ), Individual Transferable Quota (ITQ), Community Development Quotas (CDQ), or Individual Fishing Quotas (IFQ), and are not subject to size limits in these regulations, but should still be recorded in the landing record.

(4) Any Pacific halibut that bears a Commission external tag will not count against recreational (sport) daily bag limits or possession limits, may be retained outside of recreational (sport) fishing seasons, and are not subject to size limits in these regulations.

(5) Any Pacific halibut that bears a Commission external tag will not count against daily bag limits, possession limits, or fishery limits in the fisheries described in section 23, paragraph (1)(c), section 24, or section 25.

(1) The fishing periods for each IPHC Regulatory Area apply where the fishery limits specified in section 5 have not been taken.

(2) Unless the Commission specifies otherwise, commercial fishing for Pacific halibut in all IPHC Regulatory Areas may begin no earlier in the year than 1200 local time on 6 March.

(3) All commercial fishing for Pacific halibut in all IPHC Regulatory Areas shall cease for the year at 1200 local time on 7 December.

(4) The first fishing period in the IPHC Regulatory Area 2A non-tribal directed commercial fishery  2 shall begin at 0800 on the fourth Tuesday in June and terminate at 1800 local time on the subsequent Thursday, unless the Commission specifies otherwise. If the Commission determines that the fishery limit specified for IPHC Regulatory Area 2A in Section 5 has not been exceeded, it may announce a second fishing period of up to three fishing days to begin on Tuesday two weeks after the first period, and, if necessary, a third fishing period of up to three fishing days to begin on Thursday four weeks after the first period.

(5) Notwithstanding paragraph (4), and paragraph (6) of section 12, an incidental catch fishery  3 is authorized during the sablefish seasons in IPHC Regulatory Area 2A in accordance with regulations promulgated by NOAA Fisheries. This fishery will occur between the dates and times listed in paragraphs (2) and (3) of this section.

(6) Notwithstanding paragraph (4), and paragraph (6) of section 12, an incidental catch fishery is authorized during salmon troll seasons in IPHC Regulatory Area 2A in accordance with regulations promulgated by NOAA Fisheries. This fishery will occur between the dates and times listed in paragraphs (2) and (3) of this section.

All waters in the Bering Sea north of 55°00′00″ N latitude in Isanotski Strait that are enclosed by a line from Cape Sarichef Light (54°36′00″ N latitude, 164°55′42″ W longitude) to a point at 56°20′00″ N latitude, 168°30′00″ W longitude; thence to a point at 58°21′25″ N latitude, 163°00′00″ W longitude; thence to Strogonof Point (56°53′18″ N latitude, 158°50′37″ W longitude); and then along the northern coasts of the Alaska Peninsula and Unimak Island to the point of origin at Cape Sarichef Light are closed to Pacific halibut fishing and no person shall fish for Pacific halibut therein or have Pacific halibut in his/her possession while in those waters except in the course of a continuous transit across those waters. All waters in Isanotski Strait between 55°00′00″ N latitude and 54°49′00″ N latitude are closed to Pacific halibut fishing.

(1) No person shall engage in fishing for Pacific halibut in any IPHC Regulatory Area other than during the fishing periods set out in section 9 in respect of that area.

(2) No person shall land or otherwise retain Pacific halibut caught outside a fishing period applicable to the IPHC Regulatory Area where the Pacific halibut was taken.

(3) Subject to paragraphs (7), (8), (9), and (10) of section 18, these Regulations do not prohibit fishing for any species of fish other than Pacific halibut during the closed periods.

(4) Notwithstanding paragraph (3), no person shall have Pacific halibut in his/her possession while fishing for any other species of fish during the closed periods.

(5) No vessel shall retrieve any Pacific halibut fishing gear during a closed period if the vessel has any Pacific halibut on board.

(6) A vessel that has no Pacific halibut on board may retrieve any Pacific halibut fishing gear during the closed period after the operator notifies an authorized officer or representative of the Commission prior to that retrieval.

(7) After retrieval of Pacific halibut gear in accordance with paragraph (6), the vessel shall submit to a hold inspection at the discretion of the authorized officer or representative of the Commission.

(8) No person shall retain any Pacific halibut caught on gear retrieved in accordance with paragraph (6).

(9) No person shall possess Pacific halibut on board a vessel in an IPHC Regulatory Area during a closed period unless that vessel is in continuous transit to or within a port in which that Pacific halibut may be lawfully sold.

(1) Notwithstanding the fishery limits described in section 5, regulations pertaining to the division of the IPHC Regulatory Area 2A fishery limit between the directed commercial fishery and the incidental catch fishery as described in paragraphs (5) and (6) of section 9 will be promulgated by NOAA Fisheries and published in the Federal Register .

(2) The Commission shall determine and announce to the public the date on which the fishery limit for IPHC Regulatory Area 2A will be taken.

(3) Notwithstanding the fishery limits described in section 5, the commercial fishing in IPHC Regulatory Area 2B will close only when all Individual Vessel Quotas (IVQ) and Individual Transferable Quotas (ITQ) assigned by DFO are taken, or on the date when fishing must cease as specified in Section 9, whichever is earlier.

(4) Notwithstanding the fishery limits described in section 5, IPHC Regulatory Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E will each close only when all Individual Fishing Quotas (IFQ) and all CDQ issued by NOAA Fisheries have been taken, or on the date when fishing must cease as specified in Section 9, whichever is earlier.

(5) If the Commission determines that the fishery limit specified for IPHC Regulatory Area 2A in section 5 would be exceeded in an additional directed commercial fishing period as specified in paragraph (4) of section 9, the fishery limit for that area shall be considered to have been taken and the directed commercial fishery closed as announced by the Commission.

(6) When under paragraphs (1), (2), and (5) the Commission has announced a date on which the fishery limit for IPHC Regulatory Area 2A will be taken, no person shall fish for Pacific halibut in that area after that date for the rest of the year, unless the Commission has announced the reopening of that area for Pacific halibut fishing.

(7) Notwithstanding the fishery limits described in section 5, the total allowable catch of Pacific halibut that may be taken in the IPHC Regulatory Area 4E directed commercial fishery is equal to the combined annual fishery limits specified for the IPHC Regulatory Areas 4D and 4E CDQ fisheries and any IPHC Regulatory Area 4D IFQ received by transfer by a CDQ organization. The annual IPHC Regulatory Area 4D fishery limit will decrease by the equivalent amount of CDQ and IFQ received by transfer by a CDQ organization taken in IPHC Regulatory Area 4E in excess of the annual IPHC Regulatory Area 4E fishery limit.

(8) Notwithstanding the fishery limits described in section 5, the total allowable catch of Pacific halibut that may be taken in the IPHC Regulatory Area 4D directed commercial fishery is equal to the combined annual fishery limits specified for IPHC Regulatory Areas 4C and 4D. The annual IPHC Regulatory Area 4C fishery limit will decrease by the equivalent amount of Pacific halibut taken in IPHC Regulatory Area 4D in excess of the annual IPHC Regulatory Area 4D fishery limit.

(1) Section 13 applies only to any person fishing for, or any vessel that is used to fish for, IPHC Regulatory Area 4E Community Development Quota (CDQ) Pacific halibut, IPHC Regulatory Area 4D CDQ Pacific halibut, or IPHC Regulatory Area 4D IFQ received by transfer by a CDQ organization provided that the total annual Pacific halibut catch of that person or vessel is landed at a port within IPHC Regulatory Areas 4E or 4D.

(2) A person may retain Pacific halibut taken with setline gear that are smaller than the size limit specified in section 19, provided that no person may sell or barter such Pacific halibut.

(3) The manager of a CDQ organization that authorizes persons to harvest Pacific halibut in the IPHC Regulatory Area 4E or 4D CDQ fisheries or IFQ received by transfer by a CDQ organization must report to the Commission the total number and weight of undersized Pacific halibut taken and retained by such persons pursuant to section 13, paragraph (2). This report, which shall include data and methodology used to collect the data, must be received by the Commission prior to 1 November of the year in which such Pacific halibut were harvested.

(1) It shall be unlawful for any vessel to retain more Pacific halibut than authorized by that vessel's license in any fishing period for which the Commission has announced a fishing period limit.

(2) The operator of any vessel that fishes for Pacific halibut during a fishing period when fishing period limits are in effect must, upon commencing an offload of Pacific halibut to a commercial fish processor, completely offload all Pacific halibut on board said vessel to that processor and ensure that all Pacific halibut is weighed and reported on State fish tickets.

(3) The operator of any vessel that fishes for Pacific halibut during a fishing period when fishing period limits are in effect must, upon commencing an offload of Pacific halibut other than to a commercial fish processor, completely offload all Pacific halibut on board said vessel and ensure that all Pacific halibut are weighed and reported on State fish tickets.

(4) The provisions of paragraph (3) are not intended to prevent retail over-the-side sales to individual purchasers so long as all the Pacific halibut on board is ultimately offloaded and reported.

(5) When fishing period limits are in effect, a vessel's maximum retainable catch will be determined by the Commission based on:

(a) the vessel's overall length in feet and associated length class;

(b) the average performance of all vessels within that class; and

(c) the remaining fishery limit.

(6) Length classes are shown in the following table:

(7) Fishing period limits in IPHC Regulatory Area 2A apply only to the directed Pacific halibut fishery referred to in paragraph (4) of section 9.

(1) No person shall fish for Pacific halibut from a vessel, nor possess Pacific halibut on board a vessel, used either for commercial fishing or as a charter vessel in IPHC Regulatory Area 2A, unless the Commission has issued a license valid for fishing in IPHC Regulatory Area 2A in respect of that vessel.

(2) A license issued for a vessel operating in IPHC Regulatory Area 2A shall be valid only for operating either as a charter vessel or a commercial vessel, but not both.

(3) A vessel with a valid IPHC Regulatory Area 2A commercial license cannot be used to recreationally (sport) fish for Pacific halibut in IPHC Regulatory Area 2A.

(4) A license issued for a vessel operating in the commercial fishery in IPHC Regulatory Area 2A shall be valid for one of the following:

(a) The directed commercial fishery during the fishing periods specified in paragraph (4) of section 9;

(b) the incidental catch fishery during the sablefish fishery specified in paragraph (5) of section 9; or

(c) the incidental catch fishery during the salmon troll fishery specified in paragraph (6) of section 9.

(5) A vessel with a valid license for the IPHC Regulatory Area 2A incidental catch fishery during the sablefish fishery described in paragraph (4)(b) may also apply for or be issued a license for the directed commercial fishery described in paragraph (4)(a).

(6) A license issued in respect to a vessel referred to in paragraph (1) of this section must be carried on board that vessel at all times and the vessel operator shall permit its inspection by any authorized officer.

(7) The Commission shall issue a license in respect to a vessel from its office in Seattle, Washington, upon receipt of a completed “Application for Vessel License for the Pacific Halibut Fishery” form.

(8) A vessel operating in the directed commercial fishery in IPHC Regulatory Area 2A must have submitted its “Application for Vessel License for the Pacific Halibut Fishery” form no later than 2359 local time on 30 April, or the first weekday in May if 30 April is a Saturday or Sunday.

(9) A vessel operating in the incidental catch fishery during the sablefish fishery in IPHC Regulatory Area 2A must have submitted its “Application for Vessel License for the Pacific Halibut Fishery” form no later than 2359 local time on 29 May, or the next weekday in May if 29 May is a Saturday or Sunday.

(10) A vessel operating in the incidental catch fishery during the salmon troll fishery in IPHC Regulatory Area 2A must have submitted its “Application for Vessel License for the Pacific Halibut Fishery” form no later than 2359 local time on 15 March, or the next weekday in March if 15 March is a Saturday or Sunday.

(11) Applications are submitted on the IPHC Secretariat web page.

(12) Information on the “Application for Vessel License for the Pacific Halibut Fishery” form must be accurate.

(13) The “Application for Vessel License for the Pacific Halibut Fishery” form shall be completed by the vessel owner.

(14) Licenses issued under this section shall be valid only during the year in which they are issued.

(15) A new license is required for a vessel that is sold, transferred, renamed, or for which the documentation is changed.

(16) The license required under this section is in addition to any license, however designated, that is required under the laws of the United States of America or any of its States.

(17) The United States of America may suspend, revoke, or modify any license issued under this section under policies and procedures in U.S. Code Title 15, CFR part 904.

(1) The operator of any vessel that fishes for Pacific halibut in IPHC Regulatory Areas 4A, 4B, 4C, or 4D must obtain a vessel clearance before fishing in any of these areas, and before the landing of any Pacific halibut caught in any of these areas, unless specifically exempted in paragraphs (10), (13), (14), (15), or (16).

(2) An operator obtaining a vessel clearance required by paragraph (1) must obtain the clearance in person from the authorized clearance personnel and sign the IPHC form documenting that a clearance was obtained, except that when the clearance is obtained via VHF radio referred to in paragraphs (5), (8), and (9), the authorized clearance personnel must sign the IPHC form documenting that the clearance was obtained.

(3) The vessel clearance required under paragraph (1) prior to fishing in IPHC Regulatory Area 4A may be obtained only at Nazan Bay on Atka Island, Dutch Harbor, or Akutan, Alaska, from an authorized officer of the United States of America, a representative of the Commission, or a designated fish processor.

(4) The vessel clearance required under paragraph (1) prior to fishing in IPHC Regulatory Area 4B may only be obtained at Nazan Bay on Atka Island or Adak, Alaska, from an authorized officer of the United States of America, a representative of the Commission, or a designated fish processor.

(5) The vessel clearance required under paragraph (1) prior to fishing in IPHC Regulatory Area 4C or 4D may be obtained only at St. Paul or St. George, Alaska, from an authorized officer of the United States, a representative of the Commission, or a designated fish processor by VHF radio and allowing the person contacted to confirm visually the identity of the vessel.

(6) The vessel operator shall specify the specific regulatory area in which fishing will take place.

(7) Before unloading any Pacific halibut caught in IPHC Regulatory Area 4A, a vessel operator may obtain the clearance required under paragraph (1) only in Dutch Harbor or Akutan, Alaska, by contacting an authorized officer of the United States of America, a representative of the Commission, or a designated fish processor.

(8) Before unloading any Pacific halibut caught in IPHC Regulatory Area 4B, a vessel operator may obtain the clearance required under paragraph (1) only in Nazan Bay on Atka Island or Adak, by contacting an authorized officer of the United States of America, a representative of the Commission, or a designated fish processor by VHF radio or in person.

(9) Before unloading any Pacific halibut caught in IPHC Regulatory Areas 4C and 4D, a vessel operator may obtain the clearance required under paragraph (1) only in St. Paul, St. George, Dutch Harbor, or Akutan, Alaska, either in person or by contacting an authorized officer of the United States of America, a representative of the Commission, or a designated fish processor. The clearances obtained in St. Paul or St. George, Alaska, can be obtained by VHF radio and allowing the person contacted to confirm visually the identity of the vessel.

(10) Any vessel operator who complies with the requirements in section 17 for possessing Pacific halibut on board a vessel that was caught in more than one regulatory area in IPHC Regulatory Area 4 is exempt from the clearance requirements of paragraph (1) of this section, provided that:

(a) The operator of the vessel obtains a vessel clearance prior to fishing in IPHC Regulatory Area 4 in either Dutch Harbor, Akutan, St. Paul, St. George, Adak, or Nazan Bay on Atka Island by contacting an authorized officer of the United States of America, a representative of the Commission, or a designated fish processor. The clearance obtained in St. Paul, St. George, Adak, or Nazan Bay on Atka Island can be obtained by VHF radio and allowing the person contacted to confirm visually the identity of the vessel. This clearance will list the areas in which the vessel will fish; and

(b) before unloading any Pacific halibut from IPHC Regulatory Area 4, the vessel operator obtains a vessel clearance from Dutch Harbor, Akutan, St. Paul, St. George, Adak, or Nazan Bay on Atka Island by contacting an authorized officer of the United States of America, a representative of the Commission, or a designated fish processor. The clearance obtained in St. Paul or St. George can be obtained by VHF radio and allowing the person contacted to confirm visually the identity of the vessel. The clearance obtained in Adak or Nazan Bay on Atka Island can be obtained by VHF radio.

(11) Vessel clearances shall be obtained between 0600 and 1800, local time.

(12) No Pacific halibut shall be on board the vessel at the time of the clearances required prior to fishing in IPHC Regulatory Area 4.

(13) Any vessel that is used to fish for Pacific halibut only in IPHC Regulatory Area 4A and lands its total annual Pacific halibut catch at a port within IPHC Regulatory Area 4A is exempt from the clearance requirements of paragraph (1).

(14) Any vessel that is used to fish for Pacific halibut only in IPHC Regulatory Area 4B and lands its total annual Pacific halibut catch at a port within IPHC Regulatory Area 4B is exempt from the clearance requirements of paragraph (1).

(15) Any vessel that is used to fish for Pacific halibut only in IPHC Regulatory Areas 4C or 4D or 4E and lands its total annual Pacific halibut catch at a port within IPHC Regulatory Areas 4C, 4D, 4E, or the closed area defined in section 10, is exempt from the clearance requirements of paragraph (1).

(16) Any vessel that carries a NOAA Fisheries observer, a NOAA Fisheries electronic monitoring system, or a transmitting VMS transmitter while fishing for Pacific halibut in IPHC Regulatory Areas 4A, 4B, 4C, or 4D and until all Pacific halibut caught in any of these IPHC Regulatory Areas is landed, is exempt from the clearance requirements of paragraph (1) of this section, provided that:

(a) The operator of the vessel complies with NOAA Fisheries' observer or electronic monitoring regulations published at 50 CFR Subpart E, or vessel monitoring system regulations published at 50 CFR 679.28(f)(3), (4) and (5); and

(b) the operator of the vessel notifies NOAA Fisheries Office for Law Enforcement at 800-304-4846 (select option 1 to speak to an Enforcement Data Clerk) between the hours of 0600 and 0000 (midnight) local time within 72 hours before fishing for Pacific halibut in IPHC Regulatory Areas 4A, 4B, 4C, or 4D and receives a VMS confirmation number.

(1) Except as provided in this section, no person shall possess at the same time on board a vessel Pacific halibut caught in more than one IPHC Regulatory Area.

(2) Pacific halibut caught in more than one of the IPHC Regulatory Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, or 4E may be possessed on board a vessel at the same time only if:

(a) Authorized by NOAA Fisheries regulations published at 50 CFR Section 679.7(f)(4); and

(b) the operator of the vessel identifies the regulatory area in which each Pacific halibut on board was caught by separating Pacific halibut from different areas in the hold, tagging Pacific halibut, or by other means.

(1) No person shall fish for Pacific halibut using any gear other than hook and line gear,

(a) except that vessels licensed to catch sablefish in IPHC Regulatory Area 2B using sablefish trap gear as defined in the Condition of Licence can retain Pacific halibut caught as bycatch under regulations promulgated by DFO; or

(b) except that a person may retain Pacific halibut taken with longline or single pot gear if such retention is authorized by NOAA Fisheries regulations published at 50 CFR part 679.

(2) No person shall possess Pacific halibut taken with any gear other than hook and line gear,

(a) except that vessels licensed to catch sablefish in IPHC Regulatory Area 2B using sablefish trap gear as defined by the Condition of Licence can retain Pacific halibut caught as bycatch under regulations promulgated by DFO; or

(b) except that a person may possess Pacific halibut taken with longline or single pot gear if such possession is authorized by NOAA Fisheries regulations published at 50 CFR part 679.

(3) No person shall possess Pacific halibut while on board a vessel carrying any trawl nets.

(4) All gear marker buoys carried on board or used by any United States of America vessel used for Pacific halibut fishing shall be marked with one of the following:

(a) The vessel's State license number; or

(b) the vessel's registration number.

(5) The markings specified in paragraph (4) shall be in characters at least four inches in height and one-half inch in width in a contrasting color visible above the water and shall be maintained in legible condition.

(6) All gear marker buoys carried on board or used by a Canadian vessel used for Pacific halibut fishing shall be:

(a) Floating and visible on the surface of the water; and

(b) legibly marked with the identification plate number of the vessel engaged in commercial fishing from which that setline is being operated.

(7) No person on board a vessel used to fish for any species of fish anywhere in IPHC Regulatory Area 2A during the 72-hour period immediately before the fishing period for the directed commercial fishery shall catch or possess Pacific halibut anywhere in those waters during that Pacific halibut fishing period unless, prior to the start of the Pacific halibut fishing period, the vessel has removed its gear from the water and has either:

(a) Made a landing and completely offloaded its catch of other fish; or

(b) submitted to a hold inspection by an authorized officer.

(8) No vessel used to fish for any species of fish anywhere in IPHC Regulatory Area 2A during the 72-hour period immediately before the fishing period for the directed commercial fishery may be used to catch or possess Pacific halibut anywhere in those waters during that Pacific halibut fishing period unless, prior to the start of the Pacific halibut fishing period, the vessel has removed its gear from the water and has either:

(a) Made a landing and completely offloaded its catch of other fish; or

(b) submitted to a hold inspection by an authorized officer.

(9) No person on board a vessel used to fish for any species of fish anywhere in IPHC Regulatory Areas 2B, 2C, 3A, 3B, 4A, 4B, 4C, 4D, or 4E during the 72-hour period immediately before the opening of the Pacific halibut fishing season shall catch or possess Pacific halibut anywhere in those areas until the vessel has removed all of its gear from the water and has either:

(a) Made a landing and completely offloaded its entire catch of other fish; or

(b) submitted to a hold inspection by an authorized officer.

(10) No vessel used to fish for any species of fish anywhere in IPHC Regulatory Areas 2B, 2C, 3A, 3B, 4A, 4B, 4C, 4D, or 4E during the 72-hour period immediately before the opening of the Pacific halibut fishing season may be used to catch or possess Pacific halibut anywhere in those areas until the vessel has removed all of its gear from the water and has either:

(a) Made a landing and completely offloaded its entire catch of other fish; or

(b) submitted to a hold inspection by an authorized officer.

(11) Notwithstanding any other provision in these Regulations, a person may retain, possess and dispose of Pacific halibut taken with trawl gear only as authorized by Prohibited Species Donation regulations of NOAA Fisheries.

(1) No person shall take or possess any Pacific halibut that:

(a) With the head on, is less than 32 inches (81.3 cm) as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with the mouth closed, to the extreme end of the middle of the tail, as illustrated in Figure 2; or

(b) with the head removed, is less than 24 inches (61.0 cm) as measured from the base of the pectoral fin at its most anterior point to the extreme end of the middle of the tail, as illustrated in Figure 2.

(2) No person on board a vessel fishing for, or tendering, Pacific halibut in any IPHC Regulatory Area shall possess any Pacific halibut that has had its head removed, except that Pacific halibut frozen at sea with its head removed may be possessed on board a vessel by persons in IPHC Regulatory Areas 2B, 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E if authorized by Federal regulations.

(3) The size limit in paragraph (1)(b) will not be applied to any Pacific halibut that has had its head removed after the operator has landed the Pacific halibut.

(1) The operator of any U.S. vessel fishing for Pacific halibut that has an overall length of 26 feet (7.9 meters) or greater shall maintain an accurate log of Pacific halibut fishing operations. The operator of a vessel fishing in waters in and off Alaska must use one of the following logbooks: The Groundfish/IFQ Longline and Pot Gear Daily Fishing Logbook, in electronic or paper form, provided by NOAA Fisheries; the Alaska hook-and-line logbook provided by Petersburg Vessel Owners Association or Alaska Longline Fisherman's Association; the Alaska Department of Fish and Game (ADFG) longline-pot logbook; or the logbook provided by IPHC. The operator of a vessel fishing in IPHC Regulatory Area 2A must use either the WDFW Voluntary Sablefish Logbook, Oregon Department of Fish and Wildlife (ODFW) Fixed Gear Logbook, or the logbook provided by IPHC.

(2) The logbook referred to in paragraph (1) must include the following information:

(a) The name of the vessel and the State (ADFG, WDFW, ODFW, or CDFW) or Tribal ID number;

(b) the date(s) upon which the fishing gear is set or retrieved;

(c) the latitude and longitude coordinates or a direction and distance from a point of land for each set or day;

(d) the number of skates deployed or retrieved, and number of skates lost; and

(e) the total weight or number of Pacific halibut retained for each set or day.

(3) The logbook referred to in paragraph (1) shall be:

(a) Maintained on board the vessel;

(b) updated not later than 24 hours after 0000 (midnight) local time for each day fished and prior to the offloading or sale of Pacific halibut taken during that fishing trip;

(c) retained for a period of two years by the owner or operator of the vessel;

(d) open to inspection by an authorized officer or any authorized representative of the Commission upon demand; and

(e) kept on board the vessel when engaged in Pacific halibut fishing, during transits to port of landing, and until the offloading of all Pacific halibut is completed.

(4) The log referred to in paragraph (1) does not apply to the incidental Pacific halibut fishery during the salmon troll season in IPHC Regulatory Area 2A defined in paragraph (6) of section 9.

(5) The operator of any Canadian vessel fishing for Pacific halibut shall maintain an accurate record in the British Columbia Integrated Groundfish Fishing Log.

(6) The log referred to in paragraph (5) must include the following information:

(a) The name of the vessel and the DFO vessel registration number;

(b) the date(s) upon which the fishing gear is set and retrieved;

(c) the latitude and longitude coordinates for each set;

(d) the number of skates deployed or retrieved, and number of skates lost; and

(e) the total weight or number of Pacific halibut retained for each set.

(7) The log referred to in paragraph (5) shall be:

(a) Maintained on board the vessel;

(b) retained for a period of two years by the owner or operator of the vessel;

(c) open to inspection by an authorized officer or any authorized representative of the Commission upon demand;

(d) kept on board the vessel when engaged in Pacific halibut fishing, during transits to port of landing, and until the offloading of all Pacific halibut is completed;

(e) submitted to the DFO within seven days of offloading; and

(f) submitted to the Commission within seven days of the final offload if not previously collected by a Commission employee.

(8) No person shall make a false entry in a log referred to in this section.

(1) No person shall receive Pacific halibut caught in IPHC Regulatory Area 2A from a United States of America vessel that does not have on board the license required by section 15.

(2) No person shall possess on board a vessel a Pacific halibut other than whole or with gills and entrails removed, except that this paragraph shall not prohibit the possession on board a vessel of:

(a) Pacific halibut cheeks cut from Pacific halibut caught by persons authorized to process the Pacific halibut on board in accordance with NOAA Fisheries regulations published at 50 CFR part 679;

(b) fillets from Pacific halibut offloaded in accordance with section 21 that are possessed on board the harvesting vessel in the port of landing up to 1800 local time on the calendar day following the offload 4 ; and

(c) Pacific halibut with their heads removed in accordance with section 19.

(3) No person shall offload Pacific halibut from a vessel unless the gills and entrails have been removed prior to offloading. 5

(4) It shall be the responsibility of a vessel operator who lands Pacific halibut to continuously and completely offload at a single offload site all Pacific halibut on board the vessel.

(5) A registered buyer (as that term is defined in regulations promulgated by NOAA Fisheries and codified at 50 CFR part 679) who receives Pacific halibut harvested in IFQ and CDQ fisheries in IPHC Regulatory Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E, directly from the vessel operator that harvested such Pacific halibut must weigh all the Pacific halibut received and record the following information on Federal catch reports: Date of offload; name of vessel; vessel number (State, Tribal or Federal, not IPHC vessel number); scale weight obtained at the time of offloading, including the scale weight (in pounds) of Pacific halibut purchased by the registered buyer, the scale weight (in pounds) of Pacific halibut offloaded in excess of the IFQ or CDQ, the scale weight of Pacific halibut (in pounds) retained for personal use or for future sale, and the scale weight (in pounds) of Pacific halibut discarded as unfit for human consumption. All Pacific halibut harvested in IFQ or CDQ fisheries in Areas IPHC Regulatory 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E, must be weighed with the head on and the head-on weight must be recorded on Federal catch reports as specified in this paragraph, unless the Pacific halibut is frozen at sea and exempt from the head-on landing requirement at section 19(2).

(6) The first recipient, commercial fish processor, or buyer in the United States of America who purchases or receives Pacific halibut directly from the vessel operator that harvested such Pacific halibut must weigh and record all Pacific halibut received and record the following information on State fish tickets: The date of offload; vessel number (State or Federal, not IPHC vessel number) or Tribal ID number; total weight obtained at the time of offload including the weight (in pounds) of Pacific halibut purchased; the weight (in pounds) of Pacific halibut offloaded in excess of the IFQ, CDQ, or fishing period limits; the weight of Pacific halibut (in pounds) retained for personal use or for future sale; and the weight (in pounds) of Pacific halibut discarded as unfit for human consumption. All Pacific halibut harvested in fisheries in IPHC Regulatory Areas 2A, 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E must be weighed with the head on and the head-on weight must be recorded on State fish tickets as specified in this paragraph, unless the Pacific halibut is frozen at sea and exempt from the head-on landing requirement at section 19(2).

(7) For Pacific halibut landings made in Alaska, the requirements as listed in paragraphs (5) and (6) can be met by recording the information in the Interagency Electronic Reporting Systems, eLandings, in accordance with NOAA Fisheries regulation published at 50 CFR part 679.

(8) The master or operator of a Canadian vessel that was engaged in Pacific halibut fishing must weigh and record all Pacific halibut on board said vessel at the time offloading commences and record on Provincial fish tickets or Federal catch reports: The date; locality; name of vessel; the name(s) of the person(s) from whom the Pacific halibut was purchased; and the scale weight obtained at the time of offloading of all Pacific halibut on board the vessel including the pounds purchased, pounds in excess of IVQs or ITQs, pounds retained for personal use, and pounds discarded as unfit for human consumption. All Pacific halibut must be weighed with the head on and the head-on weight must be recorded on the Provincial fish tickets or Federal catch reports as specified in this paragraph, unless the Pacific halibut is frozen at sea and exempt from the head-on landing requirement at section 19(2).

(9) No person shall make a false entry on a State or Provincial fish ticket or a Federal catch or landing report referred to in paragraphs (5), (6), and (8) of this section.

(10) A copy of the fish tickets or catch reports referred to in paragraphs (5), (6), and (8) shall be:

(a) Retained by the person making them for a period of three years from the date the fish tickets or catch reports are made; and

(b) open to inspection by an authorized officer or any authorized representative of the Commission.

(11) No person shall possess any Pacific halibut taken or retained in contravention of these Regulations.

(12) When Pacific halibut are landed to other than a commercial fish processor, the records required by paragraph (6) shall be maintained by the operator of the vessel from which that Pacific halibut was caught, in compliance with paragraph (10).

(13) No person shall tag Pacific halibut unless the tagging is authorized by IPHC permit or by a Federal or State agency.

(1) The unloading and weighing of Pacific halibut may be subject to the supervision of authorized officers to assure the fulfillment of the provisions of these Regulations.

(2) The unloading and weighing of Pacific halibut may be subject to sampling by an authorized representative of the Commission.

(1) Pacific halibut fishing in IPHC Regulatory Area Subarea 2A-1 by members of United States treaty Indian tribes located in the State of Washington shall be regulated under regulations promulgated by NOAA Fisheries and published in the Federal Register .

(a) Subarea 2A-1 includes the usual and accustomed fishing areas for Pacific Coast treaty tribes off the coast of Washington and all inland marine waters of Washington north of Point Chehalis (46°53.30′ N lat.), including Puget Sound. Boundaries of a tribe's fishing area may be revised as ordered by a United States Federal court.

(b) Section 15 (Licensing Vessels for IPHC Regulatory Area 2A) does not apply to commercial fishing for Pacific halibut in Subarea 2A-1 by Indian tribes.

(c) Ceremonial and subsistence fishing for Pacific halibut in Subarea 2A-1 is permitted with hook and line gear from 1 January through 31 December.

(2) In IPHC Regulatory Area 2C, the Metlakatla Indian Community has been authorized by the United States Government to conduct a commercial Pacific halibut fishery within the Annette Islands Reserve. Fishing periods for this fishery are announced by the Metlakatla Indian Community and the Bureau of Indian Affairs. Landings in this fishery are accounted with the commercial landings for IPHC Regulatory Area 2C.

(3) Section 7 (careful release of Pacific halibut), section 18 (fishing gear), except paragraphs (7) and (8) of section 18, section 19 (size limits), section 20 (logs), and section 21 (receipt and possession of Pacific halibut) apply to commercial fishing for Pacific halibut by Indian tribes.

(4) Regulations in paragraph (3) of this section that apply to State fish tickets apply to Tribal tickets that are authorized by WDFW and ADFG.

(5) Commercial fishing for Pacific halibut is permitted with hook and line gear between the dates specified in section 9 paragraphs (2) and (3), or until the applicable fishery limit specified in section 5 is taken, whichever occurs first.

(1) Fishing for Pacific halibut for food, social and ceremonial purposes by Indigenous groups in IPHC Regulatory Area 2B shall be governed by the Fisheries Act of Canada and regulations as amended from time to time.

(1) Customary and traditional fishing for Pacific halibut in IPHC Regulatory Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E shall be governed pursuant to regulations promulgated by NOAA Fisheries and published in 50 CFR part 300.

(2) Customary and traditional fishing is authorized from 1 January through 31 December.

(1) No person shall engage in recreational (sport) fishing for Pacific halibut using gear other than a single line with no more than two hooks attached; or a spear.

(2) Any size limit promulgated under IPHC or domestic regulations shall be measured in a straight line passing over the pectoral fin from the tip of the lower jaw with the mouth closed, to the extreme end of the middle of the tail as depicted in Figure 2.

(3) Any Pacific halibut brought aboard a vessel and not immediately returned to the sea with a minimum of injury will be included in the daily bag limit of the person catching the Pacific halibut.

(4) No person may possess Pacific halibut on a vessel while fishing in a closed area.

(5) No Pacific halibut caught by recreational (sport) fishing shall be offered for sale, sold, traded, or bartered.

(6) No Pacific halibut caught in recreational (sport) fishing shall be possessed on board a vessel when other fish or shellfish aboard said vessel are destined for commercial use, sale, trade, or barter.

(7) The operator of a charter vessel shall be liable for any violations of these Regulations committed by an angler on board said vessel. In Alaska, the charter vessel guide, as defined in 50 CFR 300.61 and referred to in 50 CFR 300.65, 300.66, and 300.67, shall be liable for any violation of these Regulations committed by an angler on board a charter vessel.

(1) The Commission shall determine and announce closing dates to the public for any area in which the fishery limits promulgated by NOAA Fisheries are estimated to have been taken.

(2) When the Commission has determined that a subquota under paragraph (7) of this section is estimated to have been taken, and has announced a date on which the season will close, no person shall recreational (sport) fish for Pacific halibut in that area after that date for the rest of the year, unless a reopening of that area for recreational (sport) Pacific halibut fishing is scheduled in accordance with the Catch Sharing Plan for IPHC Regulatory Area 2A, or announced by the Commission.

(3) In California, Oregon, or Washington, no person shall fillet, mutilate, or otherwise disfigure a Pacific halibut in any manner that prevents the determination of minimum size or the number of fish caught, possessed, or landed.

(4) The possession limit on a vessel for Pacific halibut in the waters off the coast of Washington is the same as the daily bag limit. The possession limit for Pacific halibut on land in Washington is two daily bag limits.

(5) The possession limit on a vessel for Pacific halibut caught in the waters off the coast of Oregon is the same as the daily bag limit. The possession limit for Pacific halibut on land in Oregon is three daily bag limits.

(6) The possession limit on a vessel for Pacific halibut caught in the waters off the coast of California is one daily bag limit. The possession limit for Pacific halibut on land in California is one daily bag limit.

(7) Specific regulations describing fishing periods, fishery limits, fishing dates, and daily bag limits are promulgated by NOAA Fisheries and published in the Federal Register .

(1) In all waters off British Columbia:  6 7

(a) The recreational (sport) fishing season will open on 1 February unless more restrictive regulations are in place;

(b) the recreational (sport) fishing season will close when the recreational (sport) fishery limit allocated by DFO is taken, or 31 December, whichever is earlier; and

(c) the daily bag limit is two Pacific halibut of any size per day per person.

(2) In British Columbia, no person shall fillet, mutilate, or otherwise disfigure a Pacific halibut in any manner that prevents the determination of minimum size or the number of fish caught, possessed, or landed.

(3) The possession limit for Pacific halibut in the waters off the coast of British Columbia is three Pacific halibut. 6 7

(1) In Convention waters in and off Alaska:  8 9

(a) The recreational (sport) fishing season is from 1 February to 31 December.

(b) The daily bag limit is two Pacific halibut of any size per day per person unless a more restrictive bag limit applies in Commission regulations or Federal regulations at 50 CFR 300.65.

(c) No person may possess more than two daily bag limits.

(d) No person shall possess on board a vessel, including charter vessels and pleasure craft used for fishing, Pacific halibut that have been filleted, mutilated, or otherwise disfigured in any manner, except that each Pacific halibut may be cut into no more than 2 ventral pieces, 2 dorsal pieces, and 2 cheek pieces, with a patch of skin on each piece, naturally attached.

(e) Pacific halibut in excess of the possession limit in paragraph (1)(c) of this section may be possessed on a vessel that does not contain recreational (sport) fishing gear, fishing rods, hand lines, or gaffs.

(f) Pacific halibut harvested on a charter vessel fishing trip in IPHC Regulatory Areas 2C or 3A must be retained on board the charter vessel on which the Pacific halibut was caught until the end of the charter vessel fishing trip as defined at 50 CFR 300.61.

(g) Guided angler fish (GAF), as described at 50 CFR 300.65, may be used to allow a charter vessel angler to harvest additional Pacific halibut up to the limits in place for unguided anglers, and are exempt from the requirements in paragraphs (2) and (3) of this section.

(2) For guided recreational (sport) fishing (as referred to in 50 CFR 300.65) in IPHC Regulatory Area 2C:

(a) No person on board a charter vessel (as referred to in 50 CFR 300.65) shall catch and retain more than one Pacific halibut per calendar day.

(b) No person on board a charter vessel (as referred to in 50 CFR 300.65) shall catch and retain any Pacific halibut that with head on is greater than 50 inches (127.0 cm) and less than 72 inches (182.9 cm) as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with mouth closed, to the extreme end of the middle of the tail.

(3) For guided recreational (sport) fishing (as referred to in 50 CFR 300.65) in IPHC Regulatory Area 3A:

(a) No person on board a charter vessel (as referred to in 50 CFR 300.65) shall catch and retain more than two Pacific halibut per calendar day.

(b) At least one of the retained Pacific halibut must have a head-on length of no more than 32 inches (81.3 cm) as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with mouth closed, to the extreme end of the middle of the tail. If a person recreational (sport) fishing on a charter vessel in IPHC Regulatory Area 3A retains only one Pacific halibut in a calendar day, that Pacific halibut may be of any length.

(c) A “charter halibut permit” (as referred to in 50 CFR 300.67) may only be used for one charter vessel fishing trip in which Pacific halibut are caught and retained per calendar day. A charter vessel fishing trip is defined at 50 CFR 300.61 as the time period between the first deployment of fishing gear into the water by a charter vessel angler (as defined at 50 CFR 300.61) and the offloading of one or more charter vessel anglers or any Pacific halibut from that vessel. For purposes of this trip limit, a charter vessel fishing trip ends at 2359 (Alaska local time) on the same calendar day that the fishing trip began, or when any anglers or Pacific halibut are offloaded, whichever comes first.

(d) A charter vessel on which one or more anglers catch and retain Pacific halibut may only make one charter vessel fishing trip per calendar day. A charter vessel fishing trip is defined at 50 CFR 300.61 as the time period between the first deployment of fishing gear into the water by a charter vessel angler (as defined at 50 CFR 300.61) and the offloading of one or more charter vessel anglers or any Pacific halibut from that vessel. For purposes of this trip limit, a charter vessel fishing trip ends at 2359 (Alaska local time) on the same calendar day that the fishing trip began, or when any anglers or Pacific halibut are offloaded, whichever comes first.

(e) No person on board a charter vessel may catch and retain Pacific halibut on any Wednesday.

These Regulations shall supersede all previous regulations of the Commission, and these Regulations shall be effective each succeeding year until superseded.

These IPHC annual management measures are a product of an agreement between the United States and Canada and are published in the Federal Register to provide notice of their effectiveness and content. Pursuant to Section 4 of the Northern Pacific Halibut Act of 1982, 16 U.S.C. 773b, the Secretary of State, with the concurrence of the Secretary of Commerce, may “accept or reject” but not modify these recommendations of the IPHC. These regulations become effective upon that acceptance. The notice-and-comment and delay-in-effectiveness date provisions of the Administrative Procedure Act (APA), 5 U.S.C. 553(b) and (d), are inapplicable to IPHC management measures because these regulations involves a foreign affairs function of the United States, 5 U.S.C. 553(a)(1). As stated above, the Secretary of State has no discretion to modify the recommendations of the IPHC. The additional time necessary to comply with the notice-and-comment and delay-in-effectiveness requirements of the APA would disrupt coordinated international conservation and management of the halibut fishery pursuant to the Convention and the Northern Pacific Halibut Act of 1982. The publication of these regulations in the Federal Register provide the affected public with notice that the IPHC management measures are in effect. Furthermore, no other law requires prior notice and public comment for this rule. Because prior notice and an opportunity for public comment are not required to be provided for these portions of this rule by 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 not applicable. Accordingly, no Regulatory Flexibility Analysis is required for this portion of the rule and none has been prepared. This final rule has been determined to be not significant for the purposes of Executive Order 12866.

The Atlantic shark fisheries are managed under the 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP), its amendments, and implementing regulations (50 CFR part 635) issued under authority of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq. ).

Under § 635.5(b)(1), dealers must electronically submit reports on sharks that are first received from a vessel on a weekly basis through a NMFS-approved electronic reporting system. Reports must be received by no later than midnight, local time, of the first Tuesday following the end of the reporting week unless the dealer is otherwise notified by NMFS. Under § 635.28(b)(4), the quotas of certain species and/or management groups are linked. If quotas are linked, when the specified quota threshold for one management group or species is reached and that management group or species is closed, the linked management group or species closes at the same time (§ 635.28(b)(3)). The quotas for the aggregated LCS and hammerhead shark management groups in the western Gulf of Mexico sub-region are linked (§ 635.28(b)(4)(iii)).

Under § 635.28(b)(3), when NMFS calculates that the landings for any linked species and/or management group have reached or are projected to reach a threshold of 80 percent of the available quota, and are projected to reach 100 percent of the relevant quota by the end of the fishing season, NMFS will file for publication with the Office of the Federal Register a notice of an overall, regional, and/or sub-regional closure, as applicable, for the linked species and/or management groups that will be effective no fewer than 4 days from date of filing for public inspection. From the effective date and time of the closure until and if NMFS announces, via a notice in the Federal Register , that additional quota is available and the season is reopened, the fisheries for all linked species and/or management groups are closed, even across fishing years.

On December 1, 2020 (85 FR 77007), NMFS announced that for 2021, the commercial western Gulf of Mexico aggregated LCS sub-regional quota was 72.0 metric tons (mt) dressed weight (dw) (158,724 pounds (lb) dw) and the western Gulf of Mexico hammerhead sharks sub-regional quota was 11.9 mt dw (26,301 lb dw). Dealer reports received through March 3, indicate that 81 percent (58.2 mt dw) of the available western Gulf of Mexico aggregated LCS management group sub-regional quota has been landed and that less than 6 percent (<1.0 mt dw) of the available western Gulf of Mexico hammerhead sharks sub-regional quota has been landed. Dealer reports, however also indicate that daily landing rates of aggregated LCS in the sub-region are increasing. Based on these dealer reports, the western Gulf of Mexico aggregated LCS management group sub-regional quota has exceeded 80 percent of the available quota on March 3, 2021. Thus, closure of the commercial western Gulf of Mexico aggregated LCS fishery is warranted at this time under the regulations. While the western Gulf of Mexico hammerhead shark sub-regional quota has reached less than 6 percent of the available quota, it is linked to the aggregated LCS fishery, and therefore, under the regulations closes when the aggregated LCS management group in the western Gulf of Mexico sub-region closes. Accordingly, NMFS is closing the commercial aggregated LCS and hammerhead shark management groups in the western Gulf of Mexico sub-region as of 11:30 p.m. local time March 8, 2021.

All other shark species or management groups in the western Gulf of Mexico sub-region that are currently open remain open at this time, including the commercial blacktip sharks, non-blacknose small coastal sharks, blue sharks, smoothhound sharks, and pelagic sharks other than porbeagle or blue sharks.

The boundary between the Gulf of Mexico region and the Atlantic region is defined at § 635.27(b)(1) as a line beginning on the East Coast of Florida at the mainland at 25°20.4′ N lat, proceeding due east. Any water and land to the south and west of that boundary is considered for the purposes of monitoring and setting quotas, to be within the Gulf of Mexico region. The boundary between the western and eastern Gulf of Mexico sub-regions is drawn along 88°00′ W long (§ 635.27(b)(1)(ii)). Persons fishing aboard vessels issued a commercial shark limited access permit (LAP) under § 635.4 may still retain sharks in the aggregated LCS and/or hammerhead shark management groups in the eastern Gulf of Mexico sub-region (east of 88°00′ W long).

During the closure, retention of sharks in the aggregated LCS and/or hammerhead shark management groups in the western Gulf of Mexico sub-region is prohibited for persons fishing aboard vessels issued a commercial shark LAP under § 635.4. However, persons aboard a commercially permitted vessel that is also properly permitted to operate as a charter vessel or headboat for HMS, has a shark endorsement, and is engaged in a for-hire trip could fish under the recreational retention limits for sharks and “no sale” provisions (§ 635.22 (c)). Persons aboard a commercially permitted vessel that possesses a valid shark research permit under § 635.32 may continue to harvest and sell aggregated LCS and/or hammerhead sharks in the western Gulf of Mexico sub-region pursuant to the terms and conditions of the shark research permit, if a NMFS-approved observer is onboard and the shark research fishery, as applicable, is open.

During this closure, a shark dealer issued a permit pursuant to § 635.4 may not purchase or receive aggregated LCS and/or hammerhead sharks in the western Gulf of Mexico sub-region from a vessel issued an Atlantic shark LAP, except that a permitted shark dealer or processor may possess aggregated LCS and/or hammerhead sharks in the western Gulf of Mexico sub-region that were harvested, off-loaded, and sold, traded, or bartered prior to the effective date of the closure and were held in storage consistent with § 635.28(b)(6). Additionally, a permitted shark dealer may possess aggregated LCS and/or hammerhead sharks in the western Gulf of Mexico sub-region that were harvested by a vessel issued a valid shark research fishery permit per § 635.32 with a NMFS-approved observer onboard during the trip the sharks were taken on as long as the LCS research fishery quota remains open. Similarly, a shark dealer issued a permit pursuant to § 635.4 may, in accordance with relevant State regulations, purchase or receive aggregated LCS and/or hammerhead sharks in the western Gulf of Mexico sub-region if the sharks were harvested, off-loaded, and sold, traded, or bartered from a vessel that fishes only in State waters and that has not been issued an Atlantic Shark LAP, HMS Angling permit, or HMS Charter/Headboat permit pursuant to § 635.4.

Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA (AA), finds that providing prior notice and public comment for this action is impracticable and contrary to the public interest because the fishery is currently underway and any delay in this action would result in overharvest of the quotas for these species and management groups and thus would be inconsistent with fishery management requirements and objectives. The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments and fishery closures to respond to the unpredictable nature of availability on the fishing grounds, the migratory nature of the species, and regional variations. NMFS is not able to give notice sooner nor would sooner notice be practicable given the structure of the regulations, which close the fisheries under specified regulatory criteria or thresholds. Furthermore, closures need to be based on near real-time data to balance fishing opportunities against the management goal of preventing quota overharvests. Similarly, affording prior notice and opportunity for public comment on this action is contrary to the public interest because if a quota is exceeded, the stock may be negatively affected and fishermen ultimately could experience reductions in the available quota and a lack of fishing opportunities in future seasons. For these reasons, the AA also finds good cause to waive the 30-day delay in effective date pursuant to 5 U.S.C. 553(d)(3). This action is required under § 635.28(b)(3) and § 635.28(b)(4) and is exempt from review under Executive Order 12866.

Beginning in 1995, fishing for Pacific halibut and sablefish with fixed gear in the IFQ regulatory areas defined in 50 CFR 679.2 has been managed under the IFQ Program. The IFQ Program is a regulatory regime designed to promote the conservation and management of these fisheries and to further the objectives of the Magnuson-Stevens Fishery Conservation and Management Act and the Northern Pacific Halibut Act. Persons holding quota share receive an annual allocation of IFQ. Persons receiving an annual allocation of IFQ are authorized to harvest IFQ species within specified limitations. Further information on the implementation of the IFQ Program, and the rationale supporting it, are contained in the preamble to the final rule implementing the IFQ Program published in the Federal Register , November 9, 1993 (58 FR 59375) and subsequent amendments.

This announcement is consistent with § 679.23(g)(1), which requires that the directed fishing season for sablefish managed under the IFQ Program be specified by the Administrator, Alaska Region, and announced by publication in the Federal Register . This method of season announcement was selected to facilitate coordination between the sablefish season, chosen by the Administrator, Alaska Region, and the halibut season, adopted by the International Pacific Halibut Commission (IPHC). The directed fishing season for sablefish with fixed gear managed under the IFQ Program will open 1200 hours, A.l.t., March 6, 2021, and will close 1200 hours, A.l.t., December 7, 2021. This period runs concurrently with the IFQ season for Pacific halibut announced by the IPHC. The IFQ and CDQ halibut season will be specified by a separate publication in the Federal Register of annual management measures pursuant to 50 CFR 300.62.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would delay the opening of the sablefish fishery thereby increasing bycatch and regulatory discards between the sablefish fishery and the halibut fishery, and preventing the accomplishment of the management objective for simultaneous opening of these two fisheries. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 3, 2021.