This document announces changes to the maximum amount of each civil money penalty (CMP) within the OCC's jurisdiction to administer to account for inflation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 (the 1990 Adjustment Act), 1 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Adjustment Act). 2 Under the 1990 Adjustment Act, as amended, federal agencies must make annual adjustments to the maximum amount of each CMP they administer. The Office of Management and Budget (OMB) is required to issue guidance to federal agencies no later than December 15 of each year providing an inflation adjustment multiplier ( i.e., the inflation adjustment factor agencies must use) applicable to CMPs assessed in the following year. The agencies are required to publish their CMPs, adjusted pursuant to the multiplier provided by the OMB, by January 15 of the applicable year.

To the extent an agency codified a CMP amount in its regulations, the agency would need to update that amount by regulation. However, if an agency codified a formula for making the CMP adjustments, then subsequent adjustments can be made solely by notice. 3 In 2018, the OCC published a final regulation that removed the CMP amounts from its regulations while updating the CMP amounts for inflation through the notice process. 4

On December 15, 2021, the OMB issued guidance to affected agencies on implementing the required annual adjustment, which included the relevant inflation multiplier. 5 The OCC has applied that multiplier to the maximum CMPs allowable in 2021 for national banks and Federal savings associations as listed in the 2021 CMP notice  6 to calculate the maximum amount of CMPs that may be assessed by the OCC in 2022. 7 There were no new statutory CMPs administered by the OCC during 2021.

The following charts provide the inflation-adjusted CMPs for use beginning on January 12, 2022, pursuant to 12 CFR 19.240(b) and 109.103(c)(2) for conduct occurring on or after November 2, 2015:

FHFA is an independent agency of the Federal government, and the financial safety and soundness regulator of the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) (collectively, the Enterprises), as well as the Federal Home Loan Banks (collectively, the Banks) and the Office of Finance under authority granted by the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (Safety and Soundness Act). 1 FHFA oversees the Enterprises and Banks (collectively, the regulated entities) and the Office of Finance to ensure that they operate in a safe and sound manner and maintain liquidity in the housing finance market in accordance with applicable laws, rules and regulations. To that end, FHFA is vested with broad supervisory discretion and specific civil administrative enforcement powers, similar to such authority granted by Congress to the Federal bank regulatory agencies. 2 Section 1376 of the Safety and Soundness Act (12 U.S.C. 4636) empowers FHFA to impose civil money penalties under specific conditions. FHFA's Rules of Practice and Procedure (12 CFR part 1209) (the Enforcement regulations) govern cease and desist proceedings, civil money penalty assessment proceedings, and other administrative adjudications. 3 FHFA's Flood Insurance regulation (12 CFR part 1250) governs flood insurance responsibilities as they pertain to the Enterprises. 4 FHFA's Implementation of the Program Fraud Civil Remedies Act of 1986 regulation (12 CFR part 1217) sets forth procedures for imposing civil penalties and assessments under the Program Fraud Civil Remedies Act (31 U.S.C. 3801 et seq. ) on any person that makes a false claim for property, services or money from FHFA, or makes a false material statement to FHFA in connection with a claim, where the amount involved does not exceed $150,000. 5

The Federal Civil Penalties Inflation Adjustment Act of 1990 (Inflation Adjustment Act), as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Adjustment Improvements Act), requires FHFA, as well as other federal agencies with the authority to issue civil money penalties (CMPs), to adjust by regulation the maximum amount of each CMP authorized by law that the agency has jurisdiction to administer. 6 The Adjustment Improvements Act required agencies to make an initial “catch-up” adjustment of their CMPs upon the statute's enactment, 7 and further requires agencies to make additional adjustments on an annual basis following the initial adjustment. 8

The Adjustment Improvements Act sets forth the formula that agencies must apply when making annual adjustments, based on the percent change between the October Consumer Price Index for All Urban Consumers (the CPI-U) preceding the date of the last adjustment and the October CPI-U for the year before that.

This final rule adjusts the maximum penalty amount within each of the three tiers specified in 12 U.S.C. 4636 by amending the table contained in 12 CFR 1209.80 of the Enforcement regulations to reflect the new adjusted maximum penalty amount that FHFA may impose upon a regulated entity or any entity-affiliated party within each tier. The increases in maximum penalty amounts contained in this final rule may not necessarily affect the amount of any CMP that FHFA may seek for a particular violation, which may not be the maximum that the law allows; FHFA would calculate each CMP on a case-by-case basis in light of a variety of factors. 9 This rule also adjusts the maximum penalty amounts for violations under the FHFA Flood Insurance regulation by amending the text of 12 CFR 1250.3 to reflect the new adjusted maximum penalty amount that FHFA may impose for violations under that regulation. This rule also adjusts the maximum amounts for civil money penalties under the Program Fraud Civil Remedies Act by amending the text of 12 CFR 1217.3 to reflect the new adjusted maximum penalty amount that FHFA may impose for violations under that regulation.

The Adjustment Improvements Act directs federal agencies to calculate each annual CMP adjustment as the percent change between the CPI-U for the previous October and the CPI-U for October of the calendar year before. 10 The maximum CMP amounts for FHFA penalties were last adjusted in 2021. 11 Since FHFA is making this round of adjustments in calendar year 2022, and the maximum CMP amounts were last set in calendar year 2021, the inflation adjustment amount for each maximum CMP amount was calculated by comparing the CPI-U for October 2020 with the CPI-U for October 2021, resulting in an inflation factor of 1.06222. For each maximum CMP calculation, the product of this inflation adjustment and the previous maximum penalty amount was then rounded to the nearest whole dollar as required by the Adjustment Improvements Act, and was then summed with the previous maximum penalty amount to determine the new adjusted maximum penalty amount. 12 The tables below set out these items accordingly.

When promulgating any regulation that may have future effect relating to the Banks, the Director is required by section 1313(f) of the Safety and Soundness Act to consider the differences between the Banks and the Enterprises with respect to the Banks' cooperative ownership structure, mission of providing liquidity to members, affordable housing and community development mission, capital structure, and joint and several liability (12 U.S.C. 4513(f)). 13 The Director considered the differences between the Banks and the Enterprises, as they relate to the above factors, and determined that this final rule is appropriate. The inflation adjustments effected by the final rule are mandated by law, and the special features of the Banks identified in section 1313(f) of the Safety and Soundness Act can be accommodated, if appropriate, along with any other relevant factors, when determining any actual penalties.

The substance of these special conditions has been published in the Federal Register for public comment in several prior instances with no substantive comments received. Therefore, the FAA finds, pursuant to § 11.38(b), that new comments are unlikely, and notice and comment prior to this publication are unnecessary.

The FAA invites interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

The FAA will consider all comments received by the closing date for comments. The FAA may change these special conditions based on the comments received.

On May 15, 2020, Learjet applied for a supplemental type certificate to install an Aircraft Health Management System (AHMS) in the airplanes listed on the approved model list (AML) for STC No. ST01970WI. These airplanes are super-midsize-category business jets with maximum passenger capacity of 16. These airplanes have a maximum takeoff weight of 38,850 pounds.

Under the provisions of 14 CFR 21.101, Learjet must show that airplanes for which they make application to modify by STC no. ST01970WI, as changed, continue to meet the applicable provisions of the regulations listed in each airplane's respective type certificate or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

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

Special conditions are initially applicable to the models for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other models included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other models under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the airplanes listed in the AML must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

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

The airplanes listed on the AML in STC no. ST01970WI will incorporate the following novel or unusual design features:

The installation of an AHMS that allows connection to airplane electronics and networks, and access from aircraft external sources ( e.g., operator networks, wireless devices, internet connectivity, service provider satellite communications, electronic flight bags, etc.) to the previously isolated airplane electronic assets (networks, systems, and databases).

The architecture and network configuration of the airplanes listed on the AML of STC no. ST01970WI are novel or unusual for commercial transport airplanes because they may allow increased connectivity to and access from external network sources, airline operations, and maintenance networks to the airplanes' control domain and airline information-services domain. The airplanes' control domain and airline information-services domain perform functions required for the safe operation and maintenance of the airplanes. Previously, these domains had very limited connectivity with external network sources. This data network and design integration creates a potential for unauthorized persons to access the aircraft-control domain and airline information-services domain, and presents security vulnerabilities related to the introduction of computer viruses and worms, user errors, and intentional sabotage of airplane electronic assets (networks, systems, and databases) critical to the safety and maintenance of the airplanes.

The existing FAA regulations did not anticipate these networked airplane-system architectures. Furthermore, these regulations and the current guidance material do not address potential security vulnerabilities, which could be exploited by unauthorized access to airplane networks, data buses, and servers. Therefore, these special conditions ensure that the security ( i.e., confidentiality, integrity, and availability) of airplane systems is not compromised by unauthorized wired or wireless electronic connections. This includes ensuring that the security of the airplanes' systems is not compromised during maintenance of airplane electronic systems. These special conditions also require the applicant to provide appropriate instructions to the operator to maintain all electronic-system safeguards that have been implemented as part of the original network design, so that this feature does not allow or reintroduce security threats.

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

As discussed above, these special conditions are applicable to airplanes listed in the AML of STC no. ST01970WI. Should Learjet apply at a later date for another STC, to include another airplane model with the same novel or unusual design feature, these special conditions would also apply to that model as well. These special conditions are not applicable to those airplane models for which special conditions for protection from unauthorized external access have already been issued to the type certificate for those specific models.

These special conditions are only applicable to design changes applied for after its effective date.

This action affects only a certain novel or unusual design feature for airplane models listed on the AML of STC no. ST01970WI, as modified by Learjet. It is not a rule of general applicability and affects only the applicant.

The authority citation for these special conditions is as follows:

▪ Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for airplane models listed on the approved model list of supplemental type certificate no. ST01970WI, as modified by Learjet.

1. The applicant must ensure airplane electronic-system security protection from access by unauthorized sources external to the airplane, including those possibly caused by maintenance activity.

2. The applicant must ensure that electronic-system security threats are identified and assessed, and that effective electronic-system security-protection strategies are implemented to protect the airplane from all adverse impacts on safety, functionality, and continued airworthiness.

3. The applicant must establish appropriate procedures to allow the operator to ensure that continued airworthiness of the airplane is maintained, including all post-type-certification modifications that may have an impact on the approved electronic-system security safeguards.

On March 18, 2020, an Airbus Model A321-231 airplane, powered by IAE V2533-A5 model turbofan engines, experienced an uncontained HPT 1st-stage disk failure that resulted in high-energy debris penetrating the engine cowling. Based on a preliminary analysis of this event, on March 21, 2020, the FAA issued Emergency AD 2020-07-51 (followed by publication in the Federal Register on April 13, 2020, as a Final Rule, Request for Comments (85 FR 20402)), which requires the removal from service of certain HPT 1st-stage disks installed on IAE V2522-A5, V2524-A5, V2525-D5, V2527-A5, V2527E-A5, V2527M-A5, V2528-D5, V2530-A5, and V2533-A5 model turbofan engines.

Since the FAA issued AD 2020-07-51, P&W determined that the failure of the IAE V2533-A5 model turbofan engine was due to an undetected subsurface material defect in an HPT disk that may affect the life of the part. In June 2021, P&W expanded its root cause analysis to include a review of records for all other IAE and P&W engines that contain parts of similar material.

P&W's analysis identified a different population of HPT 1st-stage and HPT 2nd-stage disks installed on P&W PW1519G, PW1521G, PW1521G-3, PW1521GA, PW1524G, PW1524G-3, PW1525G, and PW1525G-3 (PW1500G) model turbofan engines, and P&W PW1919G, PW1921G, PW1922G, PW1923G, and PW1923G-A (PW1900G) model turbofan engines that are subject to the same unsafe condition identified in AD 2020-07-51 and require removal from service. This condition, if not addressed, could result in uncontained HPT disk failure, release of high-energy debris, damage to the engine, damage to the airplane, and loss of the airplane. The FAA is issuing this AD to address the unsafe condition on these products.

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

The FAA reviewed Pratt & Whitney Special Instruction (SI) No. 225F-21, dated December 1, 2021. This SI describes procedures for removing and replacing the affected HPT 1st-stage and HPT 2nd-stage disks, identified by part number (P/N) and serial number (S/N), installed on PW1500G model turbofan engines.

The FAA reviewed Pratt & Whitney SI No. 226F-21, dated December 1, 2021. This SI describes procedures for removing and replacing the affected HPT 1st-stage and HPT 2nd-stage disks, identified by P/N and S/N, installed on PW1900G model turbofan engines.

This AD requires the removal from service of certain HPT 1st-stage and HPT 2nd-stage disks installed on PW1500G and PW1900G model turbofan engines.

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

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule. On March 18, 2020, an Airbus Model A321-231 airplane, powered by IAE V2533-A5 model turbofan engines, experienced an uncontained HPT 1st-stage disk failure that resulted in high-energy debris penetrating the engine cowling. Based on a preliminary analysis of this event, on March 21, 2020, the FAA issued Emergency AD 2020-07-51 (followed by publication in the Federal Register on April 13, 2020, as a Final Rule, Request for Comments (85 FR 20402)), which requires the removal from service of certain HPT 1st-stage disks installed on IAE V2522-A5, V2524-A5, V2525-D5, V2527-A5, V2527E-A5, V2527M-A5, V2528-D5, V2530-A5, and V2533-A5 model turbofan engines. Since the FAA issued AD 2020-07-51, the manufacturer conducted a root cause analysis and identified a different population of HPT 1st-stage and HPT 2nd-stage disks installed on P&W PW1500G and PW1900G model turbofan engines that are subject to the same unsafe condition identified in AD 2020-07-51. The FAA considers removal of the affected HPT 1st-stage and HPT 2nd-stage disks to be an urgent safety issue. These HPT disks have the highest risk of failure and removal is required within 30 days after the effective date of this AD to prevent additional HPT disk failures and maintain an acceptable level of safety. This unsafe condition, if not addressed, could result in uncontained HPT disk failure, release of high-energy debris, damage to the engine, damage to the airplane, and loss of the airplane. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

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

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-1182 and Project Identifier AD-2021-01393-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 Mark Taylor, 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 8 engines installed on airplanes of U.S. registry.

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

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

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

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

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

(1) Is not a “significant regulatory action” under Executive Order 12866, 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 European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0278-E, dated December 15, 2021 (referred to after this as “the MCAI”), to address an unsafe condition on Stemme AG Model Stemme S10-VT and Stemme S12 gliders. The MCAI states:

The FAA reviewed Stemme Service Bulletin Doc. No. P062-980058, Revision 1, dated December 14, 2021. This service information specifies procedures for identifying the serial number of a part number (P/N) 12AK freewheel clutch.

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

This AD applies to gliders with a P/N 12AK freewheel clutch with a serial number starting with “12-” and requires removing the freewheel clutch from service. This AD also prohibits installing a P/N 12AK freewheel clutch with a serial number starting with “12-” on any glider.

The MCAI applies to all Stemme AG Model Stemme S10-VT and Stemme S12 gliders and requires an inspection to determine whether an affected P/N 12AK freewheel clutch is installed. This AD only applies to Stemme AG Model Stemme S 10-VT and Stemme S 12 gliders with an affected P/N 12AK freewheel clutch installed.

In addition, EASA considers its MCAI as interim action. The FAA does not identify this AD as interim action since there is no indication that a modification of the affected freewheel clutch is forthcoming and since this AD requires removing the affected clutch from service.

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

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because unintended slipping of the freewheel clutch and the consequent overheating (burnishing) of the friction pads inside of the clutch could result in a loss of thrust and loss of glider control. Because this could happen without advance warning, the corrective action must be accomplished before further flight. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

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

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-1175 and Project Identifier MCAI-2021-01409-G” 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 Jim Rutherford, Aviation Safety Engineer, FAA, General Aviation & Rotorcraft Section, International Validation Branch, 901 Locust, Room 301, Kansas City, MO 64106. 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 66 gliders of U.S. registry and estimates the following costs to comply with this AD:

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

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

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

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

(1) Is not a “significant regulatory action” under Executive Order 12866, 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 issued Emergency AD 2021-15-51 on July 6, 2021, and it published as a Final rule; request for comments on August 9, 2021 as Amendment 39-21678 (86 FR 43406) (AD 2021-15-51). AD 2021-15-51 applied to Bell Textron Inc., Model 204B, 205A, 205A-1, 205B, and 212 helicopters with a pin part number (P/N) 204-012-104-005 with a serial number (S/N) prefix “FNFS” installed. AD 2021-15-51 was prompted by a fatal accident of a Model 212 helicopter in which a pin P/N 204-012-104-005 with an S/N prefix “FNFS” sheared off during flight, which resulted in the main rotor blade and the main rotor head detaching from the helicopter. The pin had accumulated only 20 total hours time-in-service (TIS). An inspection of a different Model 212 helicopter revealed that another pin installed, and made by the same manufacturer and with the same S/N prefix, was deformed; this pin had accumulated only 29 total hours TIS. Because an affected pin could also be installed on other helicopters, AD 2021-15-51 also applied to Model 204B, 205A, 205A-1, and 205B helicopters. Failure of a pin could result in the main rotor blade detaching from the helicopter and subsequent loss of control of the helicopter.

After AD 2021-15-51 was issued, it was determined that an affected pin could also be installed on Model 210 helicopters. Therefore, the FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2021-15-51. The NPRM published in the Federal Register on November 19, 2021 (86 FR 64832) and it proposed to continue to require all of the requirements of AD 2021-15-51 and add Model 210 helicopters to the applicability.

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

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

The FAA reviewed Bell Alert Service Bulletins (ASBs), each Revision A and dated July 22, 2021:

• ASB 204B-21-74 for Model 204B helicopters, S/Ns 2001 through 2070 and 2196 through 2199;

• ASB 205-21-117 for Model 205A and 205A-1 helicopters, S/Ns 30001 through 30065, 30067 through 30165, 30167 through 30187, 30189 through 30296, and 30298 through 30332;

• ASB 205B-21-71 for Model 205B helicopters, S/Ns 30066, 30166, 30188 and 30297;

• ASB 210-21-14 for all Model 210 helicopters, and

• ASB 212-21-165 for Model 212 helicopters, S/Ns 30501 through 30999, 31101 through 31311, 32101 through 32142, and 35001 through 35103.

The ASBs specify removing all P/N 204-012-104-005 pins with an S/N prefix “FNFS” before further flight. The ASBs also specify that, although the investigation is still in progress, removing these pins from service is required. The ASBs state that these pins may not have been manufactured in accordance with the engineering design requirements and may therefore shear as a result of this nonconformance.

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

The FAA estimates that this AD affects 155 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Replacing up to four pins takes about 20 work-hours and parts cost about $1,756 for four pins for an estimated cost of up to $3,456 per helicopter, and up to $535,680 for the U.S. fleet.

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

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

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

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

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

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

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

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

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

In response to the interim final rule published on October 21, 2021 (86 FR 58205), which implements new controls on certain cybersecurity items for National Security (NS) and Anti-terrorism (AT) reasons, along with a new License Exception, Authorized Cybersecurity Exports (ACE), BIS received twelve comments before the end of the comment period on December 12, 2021. The submitted comments are posted at regulations.gov under ID BIS-2020-0038. Based on issues raised by some of the public comments, BIS may consider some modifications for the final rule. Some of the comments described the necessary compliance measures that industry would have to complete to comply with the October 21, 2021 rule and, on that basis, requested that BIS delay the rule's effective date in order to allow industry sufficient time to update the requisite compliance procedures and for BIS to provide additional public guidance. BIS agrees that it is important to allow enough time for industry to implement the compliance measures and procedures necessary to comply with the published interim final rule, as well as for BIS to provide the public with additional guidance. Therefore, BIS is delaying the effective date of the October 21, 2021 interim final rule by 45 days, to March 7, 2022. This action does not extend or reopen the comment period for BIS's previous request for comments on the interim final rule.

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

The Secretary of the Interior (“Secretary”) is authorized, under 30 U.S.C. 1719(a)-(d), to assess CMPs for royalty reporting and other violations. Pursuant to authority delegated to it by the Secretary, ONRR published regulations at 30 CFR part 1241 implementing the Secretary's CMP authority. The Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74) (the “2015 Act”) (collectively referred to herein as the “Inflation Adjustment Acts”) require Federal agencies to publish annual CMP inflation adjustments in the Federal Register by January 15th of each year.

The Inflation Adjustment Acts and Office of Management and Budget (“OMB”) Memorandum No. M-22-07, Implementation of Penalty Inflation Adjustments for 2022, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, December 15, 2021 (“OMB Memorandum”) specify that, for purposes of this rule, the annual inflation adjustments are based on the percent change between the Consumer Price Index for all Urban Consumers (“CPI-U”) published by the Department of Labor for October 2021 (October of the year in which ONRR's last CMP adjustment was published), and October 2020. The OMB Memorandum further specifies that the cost-of-living adjustment multiplier for 2022, not seasonally adjusted, is 1.06222 for CY 2022 (the October 2021 CPI-U (276.589) divided by the October 2020 CPI-U (260.388) = 1.06222). ONRR used this guidance to calculate required inflation adjustments. Pursuant to the Inflation Adjustment Acts and OMB Memorandum, any increases in CMPs are rounded to the nearest whole dollar and the new maximum penalty rates apply to CMPs assessed after the date the increase takes effect.

This final rule increases the maximum CMP dollar amounts for each of the four violation categories identified in 30 U.S.C. 1719(a)-(d) and implemented by 30 CFR part 1241. The following table identifies the applicable ONRR regulations, the dollar amounts set forth in the regulations, and the adjusted amounts.

Executive Order (“E.O.”) 12866 provides that the Office of Information and Regulatory Affairs (“OIRA”) in the OMB will review all significant rules. OIRA has determined that agency regulations intended only to implement the annual inflation adjustments are not significant, provided they are consistent with the OMB Memorandum. Because ONRR is only implementing the annual inflation adjustments in this final rule, this rule is not significant under E.O. 12866.

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

This rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601, et seq., because the rule only makes an adjustment for inflation. The 2015 Act requires agencies to adjust CMPs with an annual inflation adjustment. Therefore, the RFA does not apply to this rulemaking.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

(a) Does not have an annual effect on the economy of $100 million or more;

(b) Will not cause a major increase in costs or prices for consumers; individual industries; Federal, State, local government agencies; or geographic regions; and

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises.

This rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. This rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. Therefore, ONRR is not required to provide a statement containing the information that the Unfunded Mandates Reform Act (2 U.S.C. 1531, et seq. ) requires because this rule is not an unfunded mandate.

This rule does not result in a taking of private property or otherwise have takings implications under E.O. 12630. Therefore, this rule does not require a takings implication assessment.

Under the criteria in section 1 of E.O. 13132, this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism summary impact statement.

This rule complies with the requirements of E.O. 12988. Specifically, this rule:

(a) Meets the criteria of section 3(a), which requires that ONRR review all regulations to eliminate errors and ambiguity and to write them to minimize litigation; and

(b) Meets the criteria of section 3(b)(2), which requires that ONRR write all regulations in clear language, using clear legal standards.

The Department of the Interior (“DOI”) strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. Under the DOI's consultation policy and the criteria in E.O. 13175, ONRR evaluated this rule and determined that it will have no substantial, direct effects on Federally recognized Indian Tribes and does not require consultation.

This rule:

(a) Does not contain any new information collection requirements; and

(b) Does not require a submission to OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq. ). See 5 CFR 1320.4(a)(2).

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. ONRR is not required to provide a detailed statement under NEPA because this rule qualifies for categorical exclusion under 43 CFR 46.210(i) in that this rule is “. . . of an administrative, financial, legal, technical, or procedural nature . . . .” ONRR also has determined that this rule is not involved in any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

This rule is not a significant energy action under the definition in E.O. 13211 and, therefore, does not require a Statement of Energy Effects.

ONRR is required by E.O. 12866 (section 1(b)(12)), E.O. 12988 (section 3(b)(1)(B)), and E.O. 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule ONRR publishes must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use common, everyday words and clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible;

If you feel that ONRR has not met these requirements, send your comments to Luis Aguilar, Regulatory Specialist at ONRR_RegulationsMailbox@onrr.gov. Your comments should be as specific as possible. For example, you should identify the number of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

The Inflation Adjustment Acts require agencies to publish annual inflation adjustments by January 15 of each year, notwithstanding section 553 of the APA. OMB has interpreted this direction to mean that the usual APA public procedure for rulemaking—which includes public notice of a proposed rule, an opportunity for public comment, and a delay in the effective date of a final rule—is not required when agencies issue regulations to implement the annual adjustments to CMPs required by the 2015 Act. See OMB Memorandum, M-22-07, at page 3-4. Accordingly, ONRR is issuing the 2022 annual adjustments as a final rule without prior notice or an opportunity for comment and with an effective date immediately upon publication in the Federal Register .

Administrative practice and procedure, Coal, Geothermal energy, Indian—lands, Mineral royalties, Natural gas, Oil and gas exploration, Penalties, Public lands—mineral resources.

For the reasons discussed in the preamble, ONRR amends 30 CFR part 1241 as set forth below:

On November 10, 2021, the Postal Service filed a request to add Plus One as a new permanent product offering to USPS Marketing Mail saturation letters as a new optional feature. The Postal Service conducted a two-year market test of Plus One, beginning September 2019.

Plus One is an advertising card mailed as an add-on mailpiece with a USPS Marketing Mail letters marriage mail envelope. The host mailpiece must be mailed as a commercial automation USPS Marketing Mail saturation marriage mail letter, with a minimum of 90 percent of the mailing being saturation sorted. The remaining 10 percent must be USPS Marketing Mail high density and/or high density plus letters. All mailpieces must be entered at the destinating sectional center facility, SCF, and the Plus One add-on card must be part of the same mailing as the host piece, addressed to the same delivery points.

On January 4, 2022, the PRC favorably reviewed the addition of Plus One as a permanent Market Dominant product proposed by the Postal Service. The price and DMM revisions are scheduled to become effective on January 9, 2022. Final product information is available under Docket No. MC2022-20 (Order No. 6081) on the Postal Regulatory Commission's website at www.prc.gov.

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), Public Law 114-74, 129 Stat. 584, amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (1990 Act), Public Law 101-410, 104 Stat. 890 (28 U.S.C. 2461 note), to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. Section 3 of the 1990 Act specifically includes the Postal Service in the definition of “agency” subject to its provisions.

Beginning in 2017, the 2015 Act requires the Postal Service to make an annual adjustment for inflation to civil penalties that meet the definition of “civil monetary penalty” under the 1990 Act. The Postal Service must make the annual adjustment for inflation and publish the adjustment in the Federal Register by January 15 of each year. The Postal Service has not completed the annual adjustments for the civil monetary penalty that may be imposed under the Program Fraud Civil Remedies Act. In order to satisfy the annual adjustment requirement, the Postal Service is making all annual adjustments at this time. Each penalty will be adjusted as instructed by the Office of Management and Budget (OMB) based on the Consumer Price Index (CPI-U) from the most recent October. OMB has furnished detailed instructions regarding the annual adjustment for 2022 in memorandum M-22-07, Implementation of Penalty Inflation Adjustments for 2022, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (December 15, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/12/M-22-07.pdf. This year, OMB has advised that an adjustment multiplier of 1.06222 will be used. The new penalty amount must be rounded to the nearest dollar.

The 2015 Act allows the interim final rule and annual inflation adjustments to be published without prior public notice or opportunity for public comment.

Civil monetary penalties may be assessed for postal offenses under sections 106 and 108 of the Deceptive Mail Prevention and Enforcement Act, Public Law 106-168, 113 Stat. 1811, 1814 ( see, 39 U.S.C. 3012(a), (c)(1), (d), and 3017 (g)(2), (h)(1)(A)); and section 1008 of the Postal Accountability and Enhancement Act, Public Law 109-435, 120 Stat. 3259-3261 ( see, 39 U.S.C. 3018 (c)(1)(A)). The statutory civil monetary penalties subject to the 2015 Act and the amount of each penalty after implementation of the annual adjustment for inflation are as follows:

Under 39 U.S.C. 3005(a)(1)-(3), the Postal Service may issue administrative orders prohibiting persons from using the mail to obtain money through false representations or lotteries. Persons who evade, attempt to evade, or fail to comply with an order to stop such prohibited practices may be liable to the United States for a civil penalty under 39 U.S.C. 3012(a). The regulations implemented pursuant to this section currently impose a $74,825 penalty for each mailing less than 50,000 pieces, $149,647 for each mailing of 50,000 to 100,000 pieces, and $14,966 for each additional 10,000 pieces above 100,000 not to exceed $2,992,956. The new penalties will be as follows: A $79,481 penalty for each mailing less than 50,000 pieces, $158,958 for each mailing of 50,000 to 100,000 pieces, and $15,897 for each additional 10,000 pieces above 100,000 not to exceed $3,179,178.

In lieu of or as part of an order issued under 39 U.S.C. 3005(a)(1)-(3), the Postal Service may assess a civil penalty. Currently, the amount of this penalty, set in the implementing regulations to 39 U.S.C. 3012(c)(1), is $37,412 for each mailing that is less than 50,000 pieces, $74,825 for each mailing of 50,000 to 100,000 pieces, and an additional $7,482 for each additional 10,000 pieces above 100,000 not to exceed $1,496,478. The new penalties will be $39,740 for each mailing that is less than 50,000 pieces, $79,481 for each mailing of 50,000 to 100,000 pieces, and an additional $7,948 for each additional 10,000 pieces above 100,000 not to exceed $1,589,589.

Persons may be liable to the United States for a civil penalty under 39 U.S.C. 3012(d) for sending certain deceptive mail matter described in 39 U.S.C. 3001((h)-(k), including:

• Solicitations making false claims of Federal Government connection or approval;

• Certain solicitations for the purchase of a product or service that may be obtained without cost from the Federal Government;

• Solicitations containing improperly prepared “facsimile checks”; and

• Certain solicitations for “skill contests” and “sweepstakes” sent to individuals who, in accordance with 39 U.S.C. 3017(d), have requested that such materials not be mailed to them.

Currently, under the implementing regulations, this penalty is not to exceed $14,966 for each mailing. The new penalty will be $15,897.

Under 39 U.S.C. 3017(g)(2), the Postal Service may impose a civil penalty against a person who provides information for commercial use about individuals who, in accordance with 39 U.S.C. 3017(d), have elected not to receive certain sweepstakes and contest information. Currently, this civil penalty may not exceed $2,992,956 per violation, pursuant to the implementing regulations. The new penalty may not exceed $3,179,178 per violation.

Currently, under 39 U.S.C. 3017(h)(1)(A) and its implementing regulations, any promoter who recklessly mails nonmailable skill contest or sweepstakes matter may be liable to the United States in the amount of $14,966 per violation for each mailing to an individual. The new penalty is $15,897 per violation.

Under 39 U.S.C. 3018(c)(1)(A), the Postal Service may impose a civil penalty payable into the Treasury of the United States on a person who knowingly mails nonmailable hazardous materials or fails to follow postal laws on mailing hazardous materials. Currently, this civil penalty is at least $324, but not more than $129,032 for each violation, pursuant to the implementing regulations. The new penalty is at least $344, but not more than $137,060 for each violation.

In October 1986, Congress enacted the Program Fraud Civil Remedies Act, 31 U.S.C. 3801-3812. The Program Fraud Civil Remedies Act established an administrative remedy against any person who makes, or causes to be made, a false claim or written statement to certain Federal agencies. The Act requires each covered agency to promulgate rules and regulations necessary to implement its provisions. The Postal Service's implementing regulations are found in part 273 of title 39, Code of Federal Regulations. The Program Fraud Civil Remedies Act established a maximum penalty of $5,000 for each violation. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, 28 U.S.C. 2461 note, required all Federal agencies to (1) adjust the penalty amount to 2016 inflation levels with an initial “catch-up” inflation adjustment; and (2) make subsequent annual adjustments for inflation. This rule incorporates the initial “catch-up” adjustment to 2016 inflation levels and the annual adjustments for 2017 through 2022, and applies those adjustments cumulatively to the civil monetary penalties that the Program Fraud Civil Remedies Act imposes. The adjustment factors are as follows: 2016—2.15628; 2017—1.01636; 2018—1.02041; 2019—1.02522; 2020—1.01764; 2021—1.01182; 2022—1.06222.

After applying all adjustments, the new penalty amount is $12,537.

For the reasons set out in the preamble, the Postal Service amends 39 CFR parts 233 and 273 as follows:

Since 1996, Federal agencies have been required to issue regulations adjusting for inflation the statutory civil monetary penalties  1 that can be imposed under the laws administered by that agency. The Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996 (DCIA), required agencies to review their statutory civil monetary penalties every four years, and to adjust the statutory civil monetary penalty amounts for inflation if the increase met the DCIA's adjustment methodology. In accordance with the DCIA, the EPA reviewed and, as appropriate, adjusted the civil monetary penalty levels under each of the statutes the agency implements in 1996 (61 FR 69360), 2004 (69 FR 7121), 2008 (73 FR 75340), and 2013 (78 FR 66643).

The 2015 Act  2 required each Federal agency to adjust the level of statutory civil monetary penalties under the laws implemented by that agency with an initial “catch-up” adjustment through an interim final rulemaking. The 2015 Act also required Federal agencies, beginning on January 15, 2017, to make subsequent annual adjustments for inflation. Section 4 of the 2015 Act requires each Federal agency to publish these adjustments by January 15 of each year. The purpose of the 2015 Act is to maintain the deterrent effect of civil monetary penalties by translating originally enacted statutory civil penalty amounts to today's dollars and rounding statutory civil penalties to the nearest dollar.

As required by the 2015 Act, the EPA issued a catch-up rule on July 1, 2016, which was effective August 1, 2016 (81 FR 43091). The EPA has made five annual adjustments since then: On January 12, 2017, effective on January 15, 2017 (82 FR 3633); on January 10, 2018, effective on January 15, 2018 (83 FR 1190); on February 6, 2019, effective February 6, 2019 (84 FR 2056), and issued a subsequent correction on February 25, 2019 (84 FR 5955); on January 13, 2020, effective the same day (85 FR 1751); and on December 23, 2020, effective the same day (85 FR 83818). This rule implements the sixth annual adjustment mandated by the 2015 Act.

The 2015 Act provides a formula for calculating the adjustments. Each statutory maximum and minimum  3 civil monetary penalty, as currently adjusted, is multiplied by the cost-of-living adjustment multiplier, which is the percentage by which the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October 2021 exceeds the CPI-U for the month of October 2020. 4

With this rule, the new statutory maximum and minimum penalty levels listed in the third column of Table 1 of 40 CFR 19.4 will apply to all civil monetary penalties assessed on or after January 12, 2022, for violations that occurred after November 2, 2015, the date the 2015 Act was enacted. The former maximum and minimum statutory civil monetary penalty levels, which are in the fourth column of Table 1 to 40 CFR 19.4, will now apply only to violations that occurred after November 2, 2015, where the penalties were assessed on or after December 23, 2020, but before January 12, 2022. The statutory civil monetary penalty levels that apply to violations that occurred on or before November 2, 2015, are codified at Table 2 to 40 CFR 19.4. The fifth column of Table 1 and the seventh column of Table 2 display the statutory civil monetary penalty levels as originally enacted.

The formula for determining the cost-of-living or inflation adjustment to statutory civil monetary penalties consists of the following steps:

Step 1: The cost-of-living adjustment multiplier for 2022 is the percentage by which the CPI-U of October 2021 (276.589) exceeds the CPI-U for the month of October 2020 (260.388), which is 1.06222. 5 Multiply 1.06222 by the current penalty amount. This is the raw adjusted penalty value.

Step 2: Round the raw adjusted penalty value. Section 5 of the 2015 Act states that any adjustment shall be rounded to the nearest multiple of $1. The result is the final penalty value for the year.

Pursuant to section 4 of the 2015 Act, each Federal agency is required to publish adjustments no later than January 15 each year. In accordance with section 553 of the Administrative Procedure Act (APA), most rules are subject to notice and comment and are effective no earlier than 30 days after publication in the Federal Register . However, section 4(b)(2) of the 2015 Act provides that each agency shall make the annual inflation adjustments “notwithstanding section 553” of the APA. Consistent with the language of the 2015 Act, this rule is not subject to notice and an opportunity for public comment and will be effective on January 12, 2022.

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

This action is not a significant regulatory action and was therefore not submitted to OMB for review.

This action does not impose an information collection burden under the PRA. This rule merely increases the level of statutory civil monetary penalties that can be imposed in the context of a Federal civil administrative enforcement action or civil judicial case for violations of EPA-administered statutes and their implementing regulations.

This action is not subject to the RFA. The RFA applies only to rules subject to notice and comment rulemaking requirements under the APA, 5 U.S.C. 553, or any other statute. Because the 2015 Act directs Federal agencies to publish this rule notwithstanding section 553 of the APA, this rule is not subject to notice and comment requirements or the RFA.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action is required by the 2015 Act, without the exercise of any policy discretion by the EPA. This action also imposes no enforceable duty on any state, local or tribal governments or the private sector. Because the calculation of any increase is formula-driven pursuant to the 2015 Act, the EPA has no policy discretion to vary the amount of the adjustment.

This action does not have federalism implications. It 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.

This action does not have tribal implications as specified in Executive Order 13175.

This rule merely reconciles the real value of current statutory civil monetary penalty levels to reflect and keep pace with the levels originally set by Congress when the statutes were enacted or amended. The calculation of the increases is formula-driven and prescribed by statute, and the EPA has no discretion to vary the amount of the adjustment to reflect any views or suggestions provided by commenters. Accordingly, this rule will not have a substantial direct effect on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

The rulemaking does not involve technical standards.

The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. Rather, this action is mandated by the 2015 Act, which prescribes a formula for adjusting statutory civil penalties on an annual basis to reflect inflation.

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and comment rulemaking procedures are impracticable, unnecessary or contrary to the public interest (5 U.S.C. 808(2)). The EPA finds that the APA's notice and comment rulemaking procedures are unnecessary because the 2015 Act directs Federal agencies to publish their annual penalty inflation adjustments “notwithstanding section 553 [of the APA].”

For the reasons set out in the preamble, the EPA amends title 40, chapter I, part 19 of the Code of Federal Regulations as follows:

The information presented in this preamble is organized as follows:

Section 553(b)(3)(B) of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedures are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. The EPA has determined that there is good cause for making this final agency action without prior proposal and opportunity for comment because no significant EPA judgment is involved in making findings of failure to submit SIPs, or elements of SIPs, required by the Clean Air Act (CAA), where states have made no submissions to meet the requirement. As is discussed in further detail later, pursuant to CAA section 110(k)(1)(B), the EPA “shall determine” no later than 6 months after the date by which a state is required to submit a SIP whether a state has made a submission that meets the minimum completeness criteria established pursuant to CAA section 110(k)(1)(A). EPA exercises no significant judgment in making a determination that a state failed to make a submission and subsequently issuing a finding of failure to submit. Thus, notice and public procedures are unnecessary to take this action. The EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).

The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2021-0863. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the EPA Docket Center, EPA/DC, William Jefferson Clinton Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC. Out of an abundance of caution for members of the public and our staff, the EPA Docket Center and Reading Room are closed to the public, with limited exceptions, to reduce the risk of transmitting COVID-19. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. The telephone number for the Public Reading Room is (202) 566-1744 and the telephone number for the Office of Air and Radiation Docket and Information Center is (202) 566-1742. For further information on EPA Docket Center services and the current status, please visit us online at https://www.epa.gov/dockets.

For questions related to specific air agencies mentioned in this notice, please contact the appropriate EPA Regional Office:

On June 12, 2015, the EPA finalized an action (2015 SSM SIP Action), which clarified, restated, and updated EPA's national policy regarding SSM provisions in SIPs (2015 Policy). 1 The 2015 Policy explained the EPA's interpretation of certain CAA requirements, affirming that SSM exemption provisions ( e.g., automatic exemptions, discretionary exemptions, and overly broad enforcement discretion provisions) and affirmative defense SIP provisions are generally viewed as inconsistent with CAA requirements. At the same time, pursuant to CAA section 110(k)(5), the EPA issued findings of substantial inadequacy for SIP provisions applying to excess emissions during SSM periods for 36 states that were applicable in 45 statewide and local jurisdictions (air agencies). 2 As part of the 2015 SSM SIP Action, the EPA also issued a “SIP call” (2015 SIP Call) to each of those 45 air agencies. The 2015 SIP Call required air agencies to adopt and submit revisions to the EPA to correct identified SSM-related deficiencies in their SIPs by November 22, 2016. The 2015 SSM SIP Action also responded to a petition for rulemaking alleging specific deficiencies related to SSM provisions in existing SIPs. On July 27, 2015, the 2015 SSM SIP Action was challenged in the United States Court of Appeals for the District of Columbia Circuit. 3

In 2017, the EPA requested that the pending litigation on the final 2015 SSM SIP Action be held in abeyance to allow the new administration time to review the action. In 2020, Regions 4, 6, and 7 took final actions that were inconsistent with the 2015 Policy and the EPA withdrew the corresponding SIP calls previously issued to Texas, North Carolina, and Iowa. These state-specific actions are the subject of pending litigation. 4 Moreover, in alignment with the SIP call withdrawals for Texas, North Carolina, and Iowa, the EPA issued a Memorandum in October 2020 (2020 Memorandum), which established a new national policy that permitted the inclusion of certain provisions governing SSM periods in SIPs, including those related to exemptions and affirmative defenses. Importantly, the 2020 Memorandum was not a regulatory action and did not alter or withdraw the 2015 SIP Call for any of the 45 air agencies identified in the 2015 SSM SIP Action. The 2020 Memorandum did, however, indicate the EPA's intent at the time to review the remaining SIP calls that were issued in the 2015 SSM SIP Action to determine whether the EPA should maintain, modify, or withdraw particular SIP calls through future agency actions.

On September 30, 2021, the EPA issued a Memorandum (2021 Memorandum) that announced a withdrawal of the 2020 Memorandum and EPA's intent to return to the 2015 Policy and implement it fully. As previously articulated in the 2015 Policy, the 2021 Memorandum states that SSM exemption provisions and affirmative defense provisions included in SIPs will generally be viewed as inconsistent with CAA requirements.

As part of the reinstatement of the 2015 Policy, the EPA intends to implement the pending SIP calls, which remain in place from the 2015 SSM SIP Action. Pursuant to CAA section 110(k)(1)(B), the EPA must determine no later than 6 months after the date by which a state is required to submit a SIP whether a state has made a submission that meets the minimum completeness criteria established pursuant to CAA section 110(k)(1)(A). These criteria are set forth at 40 CFR part 51, appendix V. The EPA refers to the determination that a state has not submitted a SIP submission that meets the minimum completeness criteria, or has not submitted a SIP at all, as a “finding of failure to submit.”

For the 2015 SIP Call, as previously discussed, SIP submissions were due by November 22, 2016. The EPA's determinations of whether air agencies made submittals were therefore due on May 22, 2017. The EPA has neither made such determinations nor issued findings of failure to submit. Accordingly, the EPA is now issuing findings of failure to submit to the 12 air agencies that, as of the date of this action, had not submitted SIPs responding to the SIP call: Alabama, Arkansas, California—San Joaquin Valley Air Pollution Control District (APCD), District of Columbia, Illinois, Ohio, North Carolina—Forsyth County, Rhode Island, South Dakota, Tennessee—Shelby County, Washington—Energy Facility Site Evaluation Council (EFSEC), and Washington—Southwest Clean Air Agency (SWCAA). The EPA also notes that on September 8, 2021, a group of non-governmental organizations filed suit in the Northern District of California alleging that the EPA is in violation of its mandatory duty to issue findings of failure to submit for those states that have not yet responded to the 2015 SIP Call. 5

If the EPA finds that a state has failed to make the required SIP submittal or that a submitted SIP is incomplete, then CAA section 179(a) establishes specific consequences, after a period of time, including the imposition of mandatory sanctions under CAA section 179(b) for the affected areas or states. The two applicable sanctions enumerated in CAA section 179(b) are: (1) The 2-to-1 emission offset requirement for all new and modified major sources subject to the nonattainment NSR program, and (2) restrictions on highway funding. Additionally, a finding that a state has failed to submit a complete SIP triggers an obligation under CAA section 110(c) for the EPA to promulgate a FIP no later than 2 years after issuance of the finding of failure to submit if the affected state has not submitted, and the EPA has not approved, the required SIP submittal.

With respect to mandatory sanctions, if the EPA has not affirmatively determined that a state has made the required complete SIP submittal within 18 months  6 of the effective date of this final action, then, pursuant to CAA section 179(a) and (b) and 40 CFR 52.31, the offset sanction identified in CAA section 179(b)(2) will apply in the affected nonattainment area or state. If the EPA has not affirmatively determined that the state has made the required complete SIP submittal within 6 months after the offset sanction is imposed, then the highway funding sanction will apply in the affected nonattainment area(s), in accordance with CAA section 179(b)(1) and 40 CFR 52.31. 7 The sanctions will not take effect if, within 18 months after the effective date of these findings, the EPA affirmatively determines that the state has made a complete SIP submittal addressing the deficiency for which the finding was made. Additionally, if the state makes the required SIP submittal and the EPA takes final action to approve the submittal within 2 years of the effective date of these findings, the EPA is not required to promulgate a FIP.

Based on a review of SIP submittals received and deemed complete as of the date of signature of this action, the EPA finds that 12 air agencies have failed to submit SIP revisions in response to the 2015 SSM SIP Call that were statutorily due no later than November 22, 2016. These affected air agencies are Alabama, Arkansas, California—San Joaquin Valley APCD, District of Columbia, Illinois, Ohio, North Carolina—Forsyth County, Rhode Island, South Dakota, Tennessee—Shelby County, Washington—EFSEC, and Washington—SWCAA.

The purpose of this action is to make findings that the named air agencies failed to provide the identified SIP submissions to the EPA that are required under the CAA. As such, this action, in and of itself, does not adversely affect the level of protection provided for human health or the environment. Moreover, it is intended that the actions and deadlines resulting from this notice will promote greater protection for U.S. citizens, including minority, low-income, or indigenous populations, by ensuring that air agencies meet their statutory obligation to develop and submit SIPs to ensure that areas make progress toward reducing excess emissions during periods of SSM.

This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.

This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

This action does not impose an information collection burden under the provisions of the PRA. This final action does not establish any new information collection requirement apart from what is already required by law. This action relates to the requirement in the CAA for states to submit SIPs in response to findings of substantial inadequacy under section 110(k)(5).

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. The action is a finding that the named air agencies have not made the necessary SIP submission in response to findings of substantial inadequacy under section 110(k)(5) of the CAA.

This action does not contain any unfunded mandate as described in UMRA 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments, or the private sector.

This action does not have federalism implications. 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.

This action does not have tribal implications as specified in Executive Order 13175. This action finds that several air agencies have failed to submit SIP revisions in response to findings of substantial inadequacy under section 110(k)(5) of the CAA. No tribe is subject to the requirement to submit an implementation plan under the findings of inadequacy relevant to this action. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it is a finding that several air agencies failed to submit SIP revisions in response to findings of substantial inadequacy under section 110(k)(5) of the CAA and does not directly or disproportionately affect children.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This final action does not involve technical standards.

The EPA believes this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations. In finding that several air agencies have failed to submit SIP revisions in response to findings of substantial inadequacy under section 110(k)(5) of the CAA, this action does not directly affect the level of protection provided to human health or the environment.

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Section 307(b)(1) of the CAA governs judicial review of final actions by the EPA. This section provides, in part, that petitions for review must be filed in the United States Court of Appeals for the District of Columbia Circuit: (i) When the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, but “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.” For locally or regionally applicable final actions, the CAA reserves the EPA complete discretion whether to invoke the exception in (ii).

This final action is “nationally applicable” within the meaning of CAA section 307(b)(1). In the alternative, to the extent a court finds this final action to be locally or regionally applicable, the Administrator is exercising the complete discretion afforded to him under the CAA to make and publish a finding that this action is based on a determination of “nationwide scope or effect” within the meaning of CAA section 307(b)(1). 8 This final action consists of findings of failure to submit required SIPs from areas within 10 states and the District of Columbia, located in 8 of the 10 EPA regions, and in 8 different federal judicial circuits. 9 This final action is also based on a common core of factual findings concerning the receipt and completeness of the relevant SIP submittals. For these reasons, this final action is nationally applicable or, alternatively, the Administrator is exercising the complete discretion afforded to him by the CAA and hereby finds that this final action is based on a determination of nationwide scope or effect for purposes of CAA section 307(b)(1) and is hereby publishing that finding in the Federal Register .

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit within 60 days from the date this final action is published in the Federal Register . Filing a petition for reconsideration by the Administrator of this final action does not affect the finality of the action for the purposes of judicial review, nor does it extend the time within which a petition for judicial review must be filed, and shall not postpone the effectiveness of such rule or action.

On November 17, 2021, EPA proposed to approve the redesignation of the Rhinelander SO 2 nonattainment area to attainment of the 2010 primary, health-based 1-hour SO 2 NAAQS and to approve Wisconsin's SO 2 maintenance plan for the area (86 FR 64110). An explanation of the Clean Air Act (CAA) requirements, a detailed analysis of the revisions, and EPA's reasons for proposing approval were provided in the notice of proposed rulemaking and will not be restated here. In the notice of proposed rulemaking, EPA noted that the redesignation would not be finalized until Wisconsin's attainment plan for the Rhinelander area was approved and effective. EPA approved Wisconsin's plan on October 22, 2021, with an effective date of December 31, 2021.

The public comment period for this proposed rule ended on December 17, 2021. EPA received no adverse comments on the proposal.

In accordance with Wisconsin's July 28, 2021, request, EPA is redesignating the Rhinelander nonattainment area from nonattainment to attainment of the 2010 SO 2 NAAQS. EPA finds that Wisconsin has demonstrated that the area is attaining the 2010 SO 2 NAAQS and that the improvement in air quality is due to permanent and enforceable SO 2 emission reductions in the area. EPA is also approving Wisconsin's maintenance plan, which is designed to ensure that the area will continue to maintain the SO 2 NAAQS.

In accordance with 5 U.S.C. 553(d) of the Administrative Procedure Act (APA), EPA finds there is good cause for this action to become effective immediately upon publication. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1).

Section 553(d)(1) of the APA provides that final rules shall not become effective until 30 days after publication in the Federal Register “except . . . a substantive rule which grants or recognizes an exemption or relieves a restriction.” The purpose of this provision is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history). However, when the agency grants or recognizes an exemption or relieves a restriction, affected parties do not need a reasonable time to adjust because the effect is not adverse. EPA has determined that this rule relieves a restriction because this rule relieves sources in the area of Nonattainment New Source Review (NNSR) permitting requirements; instead, upon the effective date of this action, sources will be subject to less restrictive Prevention of Significant Deterioration (PSD) permitting requirements. For this reason, EPA finds good cause under 5 U.S.C. 553(d)(1) for this action to become effective on the date of publication of this action.

Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a state implementation plan (SIP) submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action 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 . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 14, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, EPA amends 40 CFR parts 52 and 81 as follows:

On December 3, 2021, pursuant to section 304(a)(3) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), NMFS approved Amendment 21 to the Atlantic Sea Scallop FMP in its entirety as recommended by the New England Fishery Management Council. The Council developed this action, and the measures described in this rule, to adjust the Northern Gulf of Maine (NGOM) Management Program to allow more controlled access by the limited access and limited access general category (LAGC) components, increase monitoring to support a growing directed scallop fishery in Federal waters, and adjust the LAGC individual fishing quota (IFQ) program to support overall economic performance while allowing for continued participation in the general category fishery at varying levels.

This final rule implements Amendment 21, which:

• Accounts for biomass in the NGOM as part of the overfishing limit (OFL) and the acceptable biological catch (ABC) to be consistent with other portions of scallop resource management;

• Develops landing limits for all permit categories in the NGOM and establishes an 800,000-lb (362,874-kg) NGOM Set-Aside trigger for the NGOM directed fishery, with a sharing agreement for access by all permit categories for allocation above the trigger. Allocation above the trigger will be split 5 percent for the NGOM fleet and 95 percent for limited access and LAGC IFQ fleets;

○ The NGOM Set-Aside supports a directed LAGC fishery (including NGOM and LAGC IFQ permitted vessels) at a possession limit of 200 lb (90.7 kg) per vessel per day.

○ The Council will determine how allocation above the NGOM Set-Aside trigger could be harvested by the limited access and LAGC IFQ components in a subsequent specifications package or framework adjustment.

• Expands the scallop industry-funded observer program to monitor directed scallop fishing in the NGOM by using a portion of the NGOM allocation to off-set monitoring costs;

• Allocates 25,000 lb (11,340 kg) of the NGOM allocation to increase the overall Scallop Research Set-Aside (RSA) and support Scallop RSA compensation fishing;

• Increases the LAGC IFQ possession limit from 600 lb (272 kg) to 800 lb (363 kg) per trip only for access area trips;

• Prorates the daily observer compensation rate in 12-hour increments for observed LAGC IFQ trips longer than 1 day; and

• Allows for temporary transfers of IFQ from limited access vessels with IFQ to LAGC IFQ-only vessels.

The Magnuson-Stevens Act requires NMFS to approve, partially approve, or disapprove measures proposed by the Council based on whether the measures are consistent with an FMP, the Magnuson-Stevens Act and its National Standards, and other applicable law.

NMFS published a Notice of Availability (NOA) announcing its review of the Amendment on September 8, 2021 (86 FR 50320). The public comment period on the NOA ended on November 8, 2021. NMFS published a proposed rule for Amendment 21 on October 5, 2021 (86 FR 54903). The public comment period for the proposed rule ended on November 4, 2021.

Amendment 21 modifies the annual catch limit (ACL) flowchart to account for the scallop biomass in the NGOM as part of the legal limits in the fishery by adding biomass from the area into calculations of the OFL and ABC. This action moves the accounting of the NGOM ACL from only within the OFL into the OFL and ABC/ACL for the entire fishery (Figure 1). By including exploitable scallop biomass from the NGOM as part of the scallop OFL and ABC, the ACL and sub-ACLs for the limited access and LAGC IFQ, and the limited access annual catch target (ACT) will increase. The observer set-aside will also increase with the NGOM as part of the OFL/ABC. The ABC/ACL will be reduced by the NGOM Set-Aside value, along with the Research and Observer Set-Asides and incidental catch (Figure 1). The Council will set specifications for the NGOM though future specifications actions.

The Council will use the following approach to include the NGOM in the ACL flowchart:

1. Exploitable biomass from surveyed areas of the NGOM will be estimated;

2. The contribution to the OFL will be calculated at the fishing mortality (F) rate equal to the estimate of F at Maximum Sustainable Yield (F MSY ) for Georges Bank from the most recent research or management track assessment, unless direct estimates of F MSY for the Gulf of Maine are available; and

3. Combining OFL values from areas on Georges Bank/Mid Atlantic and the NGOM could be done in a single model ( e.g., add the NGOM to the Scallop Area Management Simulator model), or as separate calculations. The method will, in part, be determined by the available data.

Incorporating the NGOM into the ACL flowchart will have no impact on limited access days-at-sea (DAS), or any other fishery allocation that is part of the annual projected landings (APL).

Amendment 21 requires that the Council set an overall total allowable limit (TAL) for the NGOM management area for all permit categories. If NGOM survey data are available, the NGOM TAL will be developed using a projection method to estimate exploitable biomass in upcoming fishing years. The allowable landings will be set by applying an F rate ranging from F=0.15 to F=0.25 to exploitable biomass in open areas of the NGOM, as specified by the Council. Modifying the F rate used to set the NGOM TAL could be adjusted in a future specification or framework action. A portion of the NGOM TAL will be added to the fishery-wide RSA (described below). In addition, one percent of the NGOM's contribution to the fishery-wide ABC will be removed from the NGOM TAL to off-set monitoring costs (described below).

The remaining portion of NGOM TAL after contributions to the fishery-wide observer and RSAs are removed will then be allocated to the NGOM Set-Aside up to the NGOM Set-Aside trigger (800,000 lb (362,874 kg)). The NGOM Set-Aside supports a directed LAGC fishery (including NGOM and LAGC IFQ permitted vessels) in the NGOM Management Area at a possession limit of 200 lb (91 kg) per vessel per day. If there is additional allocation available above the 800,000-lb (362,874-kg) trigger, the allocation above the trigger will be shared between the NGOM Set-Aside (5 percent of the allocation above the trigger) and the NGOM APL (95 percent of the allocation above the trigger). The NGOM APL will then be added to the overall APL to increase allocations for the limited access and LAGC IFQ fleets. If there is allocation above the NGOM Set-Aside trigger, the Council will determine the methods of how the NGOM APL could be harvested by the limited access and LAGC IFQ components in a subsequent specifications package or framework adjustment.

The trip limit for LAGC vessels fishing the NGOM Set-Aside ( i.e., NGOM and IFQ vessels) will be 200 lb (90.7 kg) per vessel per day. Landings from LAGC IFQ vessels fishing the NGOM Set-Aside will be deducted from their IFQ as well as from the NGOM Set-Aside. LAGC vessels with incidental catch permits (LAGC Category C) will be permitted to land up to 40 lb (18 kg) per day while fishing on non-scallop trips in the NGOM, if the area is open for LAGC vessels fishing against the NGOM Set-Aside. Scallop landings by vessels with LAGC incidental permits will not count against the NGOM Set-Aside. Incidental catch from the area will be tracked as part of the final year-end catch accounting.

For catch accounting purposes, all landings from the NGOM will be included in the review of year-end catch data.

Any overage of NGOM Set-Aside or NGOM APL allocations fished inside the NGOM Management Area will be subject to a pound-for-pound payback in a subsequent fishing year after an overage is determined. If reliable data are available to calculate an overage (Year 1), NMFS may implement these accountability measures (AM) in the following fishing year (Year 2) through the rulemaking process for updated fishery specifications. If reliable data are not available in time for the start of the following fishing year, then the AMs will be implemented 2 years after the overage occurred (Year 3). Data may not be available by the start of the following fishing year because NMFS does not complete final catch accounting until June of the following fishing year. For example, if an overage occurred in fishing year 2021, NMFS would not have the final accounting data until June of fishing year 2022. The AMs could then be implemented at the April 1 start of fishing year 2023.

Amendment 21 expands the observer call-in requirement to all scallop vessels operating in the NGOM, including NGOM-permitted vessels. This expansion of the call-in requirement facilitates observer coverage in the NGOM Management Area.

This action removes one percent of the NGOM ABC from the NGOM TAL to offset monitoring costs for vessels fishing in this area. This allocation will be removed from the NGOM TAL before allocating to the NGOM set-aside. This allocation could be used to support monitoring of all permit categories that have access to the NGOM Management Area. The NGOM monitoring set-aside will be added to the fishery-wide observer set-aside that is calculated as one percent of the ABC.

The scallop observer program will be expanded to cover directed scallop trips in Federal waters in the NGOM Management Area. Scallop trips by LAGC vessels in the NGOM are currently not covered by the observer program. This expanded program will utilize the cumulative allocation of the NGOM observer set-aside and the observer set-aside to support observer coverage in the scallop fishery. All compensation allocation for all observed trips will come out of the same pool, and NMFS will administer a single scallop observer program. At a minimum, observer coverage levels for the NGOM Management Area will be set to meet Standardized Bycatch Reporting Methodology requirements.

The amount of daily compensation available for LAGC trips in the NGOM may vary from the daily compensation rate for LAGC IFQ vessels that have a higher trip limit. Vessels selected to carry an observer will be able to land the full amount of the daily observer compensation rate in addition to the NGOM trip limit. For example, if the daily compensation rate is set at 100 lb (45 kg), vessels with observers would be able to land 300 lb (136 kg) that trip.

Amendment 21 sets aside 25,000 lb (11,340 kg) from the NGOM TAL to support RSA compensation fishing in the NGOM management area and increase the overall allocation available for the scallop RSA program. The total amount of RSA available will be the sum of the NGOM RSA and the existing 1.25 million-lb (566,990-kg) fishery-wide RSA ( i.e., 1.275 million lb (573,330 kg)).

RSA compensation fishing in the NGOM management area will be allowed. Although, NGOM RSA will be combined with the overall RSA, RSA compensation fishing in the NGOM will be capped at the available NGOM RSA, i.e., 25,000 lb (11,340 kg). Any vessels that are awarded NGOM RSA compensation are required to declare into the area and fish exclusively within the NGOM Management Area. Compensation fishing in the NGOM Management Area could be done to support any research project awarded through the Scallop RSA. However, projects focusing on research in the NGOM will have the first opportunity to fish compensation allocation in the NGOM. NMFS would administer this process.

This action does not mandate that NGOM RSA be harvested strictly in the NGOM Management Area. Vessels allocated NGOM RSA will have an option to fish NGOM RSA in the NGOM or in any other area available to RSA compensation fishing.

Amendment 21 increases the LAGC IFQ possession limit to 800 lb (363 kg) for access area trips and maintains the 600-lb (272-kg) possession limit for open area trips. The LAGC IFQ component has been subject to a possession limit since the program's inception through Amendment 11. Interest in increasing the 600-lb (272-kg) trip limit through this action is based on the continued increase of operating expenses, which are principally driven by fuel costs associated with longer steam times. For LAGC IFQ vessels that elect to do so, transiting farther offshore to fish access areas with higher landings per unit of effort and improved meat yield leads to increased trip costs due to higher fuel expenses associated with longer steam times. Increasing the access area possession limit will reduce the overall number of trips and combined steam time needed to harvest quota from offshore access areas, thereby reducing overall trip costs ( i.e., fuel) and operating expenses ( i.e., vessel maintenance) relative to the current 600-lb (272-kg) limit. Increasing the access area possession limit could offer LAGC IFQ vessels more flexibility with regard to timing access area trips around weather conditions, which could potentially improve safety in this component of the fishery.

Amendment 21 will make LAGC IFQ vessels eligible for additional compensation when carrying an observer on board and fishing trips longer than 1 day (24 hours). The daily compensation rate, as determined by NMFS, will be prorated at 12-hour increments for trips exceeding 24 hours. The amount of compensation a vessel could receive on 1 trip would be capped at 2 days (48 hours) and vessels fishing longer than 48 hours will not receive additional compensation allocation. For example, if the observer compensation rate is 200 lb/day (90.7 kg/day) and an LAGC IFQ vessel carrying an observer departs on July 1 at 2200 and lands on July 3 at 0100, the length of the trip would equal 27 hours, or 1 day and 3 hours. In this example, the LAGC IFQ vessel would be eligible for 1 day plus 12 hours of compensation allocation, i.e., 300 lb (136 kg). An LAGC IFQ vessel will be able to harvest the trip limit and the daily compensation rate on the observed trip, or the vessel could harvest any unfished compensation on a subsequent trip while adhering to the commercial possession limit.

Amendment 21 allows temporary transfers of IFQ from combo vessels to LAGC IFQ-only permits and maintains the existing prohibition on transferring quota to combo vessels. This action does not change how IFQ is allocated. Quota accumulation caps remain consistent with the limits established through Amendment 15 for LAGC IFQ-only permits, regardless of any additional quota that may become available through one-way, temporary transfers from combo vessels. An individual LAGC IFQ permit still may not hold more than 2.5 percent of the IFQ allocated to the LAGC IFQ component in a year and an ownership entity still may not hold more than 5 percent of the IFQ allocated to the LAGC IFQ component in a year. Allowing one-way, temporary transfers from combo vessels to LAGC IFQ-only permits increases the overall level of quota available to LAGC IFQ-only vessels, and it does not require changes to how allocations are estimated and distributed among the two fleets.

The regulations at 50 CFR part 648.55 list management measures that may be changed or implemented through specifications or framework actions. During the development of Amendment 21, the Council identified a list of specific issues that may be addressed through future specifications actions or framework adjustments. The existing scallop regulations do not need to be expanded to address concepts that the Council would like to adjust through a specifications package or a framework adjustment in the future. The Council's list included:

1. § 648.55(f)(25) Set-asides for funding research;

a. Contribution of RSA percentage and/or assigned pounds from the NGOM allocation.

2. § 648.55(f)(31) Modifications to provisions associated with observer set-asides; observer coverage; observer deployment; observer service provider; and/or the observer certification regulations;

a. Observer set-aside percentage from the NGOM Allocation.

3. § 648.55(f)(35) Adjustments to the Northern Gulf of Maine scallop fishery measures;

a. Partition the NGOM into multiple sub-areas with separate allocations;

b. Partition the NGOM Set-Aside is multiple seasons;

c. Modify the F rate used to set the NGOM TAL; and

d. Harvest methods of the NGOM APL by the IFQ and limited access boats.

4. § 648.55(f)(37) Increases or decreases in the LAGC possession limit;

a. Accounting for access area trips in the LAGC IFQ fishery.

5. § 648.55(f)(38) Adjustments to aspects of ACL management, including accountability measures;

a. Modify how the NGOM is accounted for in the calculation of OFL, ABC, and ACLs.

In addition, the Council clarified that it could develop options for electronic monitoring to replace at-sea monitors in a future framework based on existing language in these existing regulations:

1. § 648.55(f)(31) Modifications to provisions associated with observer set-asides; observer coverage; observer deployment; observer service provider; and/or the observer certification regulations;

2. § 648.11(g) Industry-funded monitoring programs. FMPs managed by the Council, including Atlantic Herring, Atlantic Salmon, Atlantic Sea Scallops, Deep-Sea Red Crab, Northeast Multispecies, and Northeast Skate Complex, may include industry-funded monitoring (IFM) programs to supplement existing monitoring required by the Standard Bycatch Reporting Methodology (SBRM), Endangered Species Act, and the Marine Mammal Protection Act. IFM programs may use observers, monitors, including at-sea monitors and portside samplers, and electronic monitoring to meet specified IFM coverage targets. The ability to meet IFM coverage targets may be constrained by the availability of Federal funding to pay NMFS cost responsibilities associated with IFM.

NMFS is making several changes consistent with section 305(d) of the Magnuson-Stevens Act, which provides that the Secretary of Commerce may promulgate regulations necessary to ensure that amendments to an FMP are carried out in accordance with the FMP and the Magnuson-Stevens Act. These adjustments do not make any substantive changes to the implications of the current regulations. First, NMFS revises § 648.14(i) to more clearly define the prohibitions based on the scallop regulations at § 648 Subpart D. As a result, this rule includes revisions to the regulatory text that reorganize and condense references to possession limits and restrictions. The specific regulations being revised or removed are specified in Table 1.

Second, in §§ 648.2, 648.14(i), 648.52, 648.55, and 648.59, NMFS makes revisions to consistently reference the Scallop Access Area Program throughout the regulations. Third, in § 648.14(i)(x), NMFS clarifies the presumption related to where scallops are caught ( i.e., Federal/state waters), not whether a vessel has a Federal scallop permit. Fourth, NMFS updates §§ 648.14(i)(x)(3)(iv)(B) and 648.52(a)(1) with a corrected reference to § 648.10(f). Fifth, in § 648.52(b), (c), (d), (e), (f), NMFS adds headings for consistency across paragraphs. Sixth, in § 648.52(f), NMFS removes duplicative possession limit language for IFQ vessels. Seventh, in § 648.53(h)(3)(i)(A) and (B), NMFS clarifies that the IFQ accumulation cap applies to the annual IFQ allocation, not the IFQ sub-ACL. Eighth, in § 648.53(h)(5)(i) and (ii), NMFS clarifies that these regulations apply to IFQ permit holders regardless of whether the permit is in confirmation of permit history (CPH). Ninth, in § 648.59(b)(4), to promote safety at sea, at the request of the Council, NMFS will allow vessels to enter or exit a Scallop Access Area more than once per trip if there is a compelling safety reason.

Finally, due to the extensive regulatory changes in this action, we are updating references throughout the scallop regulations that will change based on these regulatory adjustments. We have included a summary of all of the regulatory changes in this rule in Table 1.

We received eight comment letters on this action. Six individuals commented in support of the action. One individual and Fisheries Survival Fund (FSF), which represents the significant majority of full-time Limited Access permit holders in the Atlantic scallop fishery, commented in opposition to some measures in Amendment 21.

Comment 1: A general category industry member commented that the IFQ possession limit should be increased to at least 1,000 lb (454 kg) because vessels must travel 3 to 12 hours to fish in open and access areas. He comments that increasing the trip limit to all areas would reduce risk to vessels and reduce trip costs and the carbon footprint of the fleet.

Response: Amendment 21 increases the IFQ possession limit to 800 lb (363 kg) per trip for access area-only trips to address some of the issues raised by the commenter. The higher possession limit in access areas will reduce the number of trips and combined steam time needed to harvest quota from offshore access areas, thereby reducing overall trip costs ( i.e., fuel) and operating expenses ( i.e., vessel maintenance) relative to the current 600-lb (272 kg) limit. Increasing the access area possession limit to 800 lb (363 kg) could offer LAGC IFQ vessels more flexibility with regard to timing access area trips around weather conditions, which could potentially improve safety in this component of the fishery. In developing Amendment 21, the Council balanced the issues raised by the commenter and the Amendment's vision for the LAGC component, “a fleet made up of relatively small vessels, with possession limits to maintain the historical character of this fleet and provide opportunities to various participants including vessels from smaller coastal communities.”

Comment 2: The same general category industry member commented that the Council should close the entire NGOM to limited access vessels because they decimate the available stock for the general category when they fish in the area.

Response: The purpose of Amendment 21, specific to the NGOM, is to allow for more controlled access by the limited access and LAGC components and increase monitoring in ways that support a growing directed scallop fishery in Federal waters. The 800,000-lb (362,874-kg) set aside supports some additional participation in the NGOM fishery by LAGC vessels without impacting the current harvest levels of existing participants. Amendment 21 provides the Council with the tools to control removals from the NGOM and better conserve the resource in the area. Further, it provides the mechanism to develop more controlled access to the NGOM by the limited access fleet once the allocation to the area exceeds the NGOM set-aside trigger. The Council considered limiting the cumulative maximum dredge width that could be fished in the NGOM, but ultimately found that there is no biological benefit to the resource in mandating smaller dredge sizes for the limited access fleet in the NGOM.

Comment 3: FSF commented that the NGOM set-aside amount of 800,000 lb (362,874 kg) developed in Amendment 21 does not provide “orderly access” to the limited access fleet because it would exclude limited access participants even during years of abundance. FSF continues that the recently-utilized 135,000-lb (61,235-kg) set-aside has already accommodated growth of the NGOM fishery, which was created to be a part-time dayboat fishery for vessels that predominately fish for other species (via Amendment 11). NGOM trips are set at 200 lb (90.7 kg); thus, under an 800,000-lb (362,874-kg) set-aside there would be 4,000 trips available, a number disproportionate to the size of the part-time NGOM scallop fishery.

Response: Using an 800,000-lb (362,874-kg) trigger for the NGOM set-aside supports increased fishing opportunities for all permit categories in the area and addresses the Council's vision of continued participation in the general category fishery at varying levels and providing opportunities to various participants, including vessels from smaller coastal communities, as stated in Amendment 11 and reaffirmed through this action.

There are a total of 427 LAGC permits that potentially could fish in the NGOM set-aside. In addition, there are 338 IFQ permits that could fish the NGOM set-aside (765 vessels total). In 2019, 110 NGOM permits were issued, and 41 vessels (a combination of NGOM and IFQ vessels) landed scallops from the area. An 800,000-lb (362,874-kg) trigger supports additional participation in the NGOM fishery by some of the remaining 724 vessels that could access this fishery without impacting the current harvest levels of existing participants.

Further, because the LAGC share of the NGOM total allowable catch has been harvested in about a month in recent years ( i.e., 2018-2021), setting a trigger value above recent allocation levels has the potential to lengthen the season for LAGC vessels and expand opportunities across more of the fishing year.

When the allocation to the NGOM is over this trigger, 5 percent will go to the NGOM set-aside, and 95 percent will go to the NGOM APL. This is intended to support access to the scallop resource in the area by limited access, LAGC IFQ, and LAGC NGOM vessels. Allocating 95 percent of the allocation over the trigger to the NGOM APL would quickly increase the share for the limited access and LAGC IFQ as the exploitable biomass in the area grows. This option would add to the existing allocations for the limited access and LAGC IFQ that come from Georges Bank and the Mid-Atlantic.

In 2017, the limited access fleet fished heavily in the NGOM on DAS. The limited access fleet landed an estimated 1,578,020 lb (715,778 kg) of scallops from March 1 through March 22. This shows that NGOM is capable of having biomass above the 800,000-lb (362,874-kg) trigger.

Comment 4: FSF commented that, since Amendment 11, set-aside has been set at levels that are consistent with NGOM vessels' participation in the fishery. For many years, the set-aside was 70,000 lb (31,751 kg) and in 2019, it was increased to 135,000 lb (61,235 kg). Amendment 21, however, would establish an annual set-aside of 800,000 lb (362,874 kg) for NGOM vessels. FSF comments that this is not consistent with historic allocations, nor is a set-aside of 800,000 lb (362,874 kg) consistent with either Amendment 21's Purpose and Need or its Goals and Objectives. Accordingly, FSF states that Amendment 21's allocation approach is arbitrary and capricious. Achievable access to the NGOM is important to the limited access fleet in the face of climate change and potential shifts in species abundance and distribution.

Response: NMFS disagrees that the allocation approach was arbitrary and that the allocation method is not consistent with the Purpose and Need or the Goals and Objectives of the Amendment. The purpose of Amendment 21, specific to the NGOM, is to allow for more controlled access by the limited access and LAGC components and increase monitoring in ways that support a growing directed scallop fishery in Federal waters. The need for this action is to promote conservation of the scallop resource in the NGOM and to manage total removals from the area by all fishery components. The Goals and Objectives specific to the NGOM are to:

1. Support a growing directed scallop fishery in Federal waters in the NGOM;

2. Allow for orderly access to the scallop resource in this area by the LAGC and limited access components; and

3. Establishing mechanisms to set allowable catches and accurately monitor catch and bycatch from the NGOM.

Amendment 11 allowed limited access vessels to access the NGOM on DAS. However, at the time, there had not been significant limited access fishing in the area for many years. In 2016, the limited access fleet began fishing in the area, landing 292,517 lb (132,683 kg) in 74 days before the area closed. In 2017, the limited access fleet returned to the NGOM landing 1,578,020 lb (715,778 kg) of scallops in 23 days before the area closed. It was this drastic increase in effort by the limited access fleet on DAS that led to the Council's desire to have better controls on limited access removals from the NGOM to better conserve the resource in the area. Amendment 21 provides the Council with the tools to control removals from the NGOM and better conserve the resource in the area. Further, it provides the mechanism to develop more controlled access to the NGOM by the limited access fleet once the allocation to the area exceeds the NGOM set-aside trigger.

The 800,000-lb (362,874-kg) set-aside was not selected by the Council to be allocated only to the vessels that are accessing the NGOM currently. As stated above, there are a total of 427 LAGC permits and 338 IFQ permits that could fish the NGOM set-aside. In 2019, 110 NGOM permits were issued, and 41 vessels (NGOM and IFQ) landed scallops from the area. The 800,000-lb (362,874-kg) set aside supports some additional participation in the NGOM fishery by LAGC vessels without impacting the current harvest levels of existing participants.

Comment 5: FSF comments that the F rate being used to set the NGOM scallop allocation has no official Council sanction, nor is it subject to notice and comment rulemaking, as it should be. Nothing in Amendment 21 or its decision-making materials established this F range for the NGOM annual harvest setting. They comment that it does not appear that the Council considered either this F range or any methodology to set any F range for the NGOM as part of its Amendment 21 deliberations. Rather, at a meeting on February 27, 2020, the Scallop Committee passed a motion “to apply a range of F rates for setting the NGOM total allowable landings (TAL) in allocation alternatives being considered in Amendment 21 as F = 0.15 to F = 0.25.” From there, FSF argues the F rate was impermissibly taken as a given throughout the remainder of the Amendment 21 development process and is included in the Amendment 21 proposed rule as if it had Council sanction.

Response: NMFS disagrees that the F rate was impermissibly taken as a “given.” The motion in question specifically grants permission to apply F rates of F = 0.15 to F = 0.25 to the NGOM allocation alternatives. This motion carried 7-0-0 at the Scallop Oversight Committee. The rationale for this motion states, “Recent framework actions have analyzed F rates from F = 0.15 up to F = 0.25. This could be a way to grow the biomass in the NGOM management area and support sustainable annual harvest. Modifying the F rate used to set the NGOM TAL could be adjusted in a future framework.” This rationale is consistent with the need to promote conservation of the scallop resource in the NGOM. Further, Amendment 21 is clear that the Council can adjust the F rate for the NGOM in a future framework action to set specifications annually, making it subject to notice and comment rulemaking, annually. For future specifications-setting actions, the Council is in no way bound by these F rates considered for the allocation alternatives in Amendment 21.

Comment 6: FSF commented that the F rate for the NGOM was not included as part of the Amendment 21 analyses, and that Amendment 21's resulting economic analyses are therefore incomplete. The proposed rule states that Amendment 21 “maximizes yields and economic benefits,” but the supporting analyses do not provide any practical indication of its relative impacts on the NGOM and non-NGOM vessels, respectively.

FSF continues that, while the economic analyses compare the revenue generated by the LAGC and limited access fleets, respectively, with NGOM allocations of 100,000 lb (45,359 kg) to 6,000,000 lb (2,721,554 kg), these analyses do not integrate the F rate limit contained in Amendment 21 into the analyses. FSF comments that the F rate is a material element of the equation, and that an agency action is arbitrary and capricious if it fails to consider an important aspect of the problem.

Response: The NGOM is considered to be data poor relative to Georges Bank and the mid-Atlantic. The Gulf of Maine, and the NGOM management unit, have not been regularly surveyed for scallops. The NGOM is outside the areas covered by the stock assessment models (Georges Bank and the mid-Atlantic). The F rates considered in Amendment 21 were selected to promote conservation. Further, because the NGOM is currently considered data poor, during the discussion of the motion to include these F rates, the Committee agreed that being able to adjust fishing mortality rates in a future action will be important, especially if methods to setting harvest levels in the NGOM evolve/improve over time. Given this, and given that the F rates considered in the Amendment 21 allocation alternatives are adjustable during any specifications-setting framework, it is not necessary to directly compare F rates as part of the allocation alternatives.

The economic analysis does address the relative impacts on limited access and LAGC vessels. The economic impacts of this measure are likely to be mixed and dependent on the size of the NGOM allocation. When scallop biomass in the NGOM management area is relatively low, and catch rates are low, the impact on the limited access component could be negligible compared to No Action because these vessels would be unlikely to fish their DAS in the management area rather than on Georges Bank or in the mid-Atlantic. When the NGOM allocation is below the set-aside trigger, the limited access and LAGC IFQ components would not receive any additional allocation, which would also be the case under No Action.

Compared to No Action, the preferred alternative is expected to have a direct positive impact when the NGOM allocation is above the set-aside trigger because the limited access and LAGC IFQ components would receive 95 percent of the allocation above the trigger, have access to the area, and would not have to fish DAS when accessing the area. This allocation would be in addition to the allocations from Georges Bank and the mid-Atlantic that these permit holders receive each year. This is particularly important if the spatial extent of the scallop resource shifts in response to climate change. Further, because the preferred alternative would set landings limits for all components, there is a lower risk of harvest exceeding the allocation to the area compared to No Action.

Comment 7: FSF comments that if the F for the NGOM were set close to F = 0.39, a set-aside of 800,000 lb (362,874 kg) would still be largely exclusionary. Under Amendment 21, revenues for the limited access fleet would not equalize with the NGOM vessels until 1,688,888 lb (766,067 kg) of scallops are harvested from the NGOM. Conversely, under the 95 percent/5 percent split and a 500,000-lb (226,796-kg) NGOM set-aside, revenues would equalize between the two fleets at roughly 1,000,000 lb (453,592 kg).

Response: As stated above, in fishing year 2017, the limited access fleet harvested 1,578,020 lb (715,778 kg) from the NGOM in 23 days. The Council believes that these levels of harvest are possible again and developed Amendment 21 to account for scenarios where removals were more consistent with removals from other areas in Georges Bank and the mid-Atlantic ( i.e., millions of lb instead of hundreds of thousands of lb).

Comment 8: FSF commented that, the NGOM is part of the Atlantic sea scallop stock's range that must be managed as a unit under National Standard 3.

Response: The Council manages the scallop resource throughout its range. Under the Scallop FMP, target fishing mortality rate and stock biomass are applied to the scallop resource, which spans from North Carolina to the U.S./Canada boundary. This represents the entire range of scallop stocks under Federal jurisdiction. Amendment 21 accounts for the scallop biomass in the NGOM as part of the legal limits in the fishery by adding biomass from the area into calculations of the OFL and ABC. Amendment 21 moves the accounting of the NGOM ACL from only within the OFL into the OFL and ABC/ACL for the entire fishery. The NGOM ACL will be set consistent with how the rest of the scallop fishery is managed, at the catch level equal to the F that has a 75-percent probability of remaining below the F associated with overfishing.

Comment 9: FSF comments that prorating the daily observer compensation rate in 12-hour increments for observed LAGC IFQ trips longer than 1 day threatens to reopen a loophole where IFQ vessels modify their behavior and fishing patterns to extend their trips to purposefully benefit from the additional compensation. Further, FSF comments that there is also no conservation benefit to the allocation contained in this proposed rule change, which is a known and documented detriment.

Response: NMFS disagrees. Aligning the amount that vessels can be compensated when carrying an observer with the length of a typical LAGC IFQ trip will reduce the risk of observer bias in the LAGC IFQ fishery. This is true in the current fishery that has a 600-lb (272-kg) trip limit and would hold true in the future with the larger 800-lb (363-kg) possession limit in access areas ( i.e., areas further offshore that take longer to access), which could result in longer trips. Currently, LAGC IFQ vessels are allowed 1 day of compensation for carrying an observer regardless of the length of a trip, but are required to assume the cost of having the observer on board even when a trip exceeds the 1-day limit. Prorating additional compensation in 12-hour increments over one 24-hour day and capping the amount of compensation that could be allocated on a single trip would make the level of compensation to a vessel more accurate with regard to the cost of carrying an observer on board for the full length of a trip and reduce the incentive for vessels to fish longer trips for the purpose of receiving additional compensation. Relieving vessels of the additional cost burden for trips of over 1 day will reduce the likelihood that fishing behavior will be different for observed trips versus unobserved trips. In addition, considering that observer data is a critical need for accurately characterizing the behavior of the LAGC IFQ component and for documenting interactions with protected species, non-target species, and discards, it is likely that reducing any potential observer bias would reduce uncertainty around the impacts of these interactions and improve observer data when analyzed by the Council in future specifications actions. Having less uncertainty in the data streams used to inform impacts of the scallop fishery would likely have conservation benefits to the fishery as a whole in the future.

Comment 10: FSF strongly supports the 95/5 percent split above the set aside.

Response: NMFS thanks FSF for the comment.

Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this Amendment and final rule are consistent with the Amendment 21, other provisions of the Magnuson-Stevens Act, and other applicable law.

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

This final rule does not contain policies with federalism or “takings” implications, as those terms are defined in E.O. 13132 and E.O. 12630, respectively.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification.

During the development of preferred alternatives in Amendment 21, NMFS and the Council considered ways to reduce the regulatory burden and provide flexibility to the regulated community. The measures implemented by Amendment 21 related to NGOM allocations and the LAGC IFQ possession limit in access areas, along with other Amendment 21 actions, increase the economic benefits on small entities both in the short- and long-term. The action for the NGOM allocation adjusts landing limits and related research and observer set-asides based on annual scallop surveys in the NGOM area, leading to increased harvest and wider fishery participation in the future. However, there would be no change to the LAGC IFQ allocation when increasing the LAGC IFQ possession limit in access areas.

Overall, the preferred alternatives in Amendment 21 ensure that catch levels are sustainable, reduce the risk of overfishing, and maximize yield and economic benefits. The establishment of the NGOM Set-Aside and the increase to the LAGC IFQ access area possession limit are expected to have an immediate positive economic gain with potential for increased fishing participants/participation or effort, particularly in the NGOM area when there are more scallop fishing opportunities. The preferred alternatives in other actions of Amendment 21 also have overall positive economic effects benefitting both small and large entities.

As a result, a regulatory flexibility analysis is not required and none has been prepared.

This final rule contains a collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This rule revises the existing requirements for the collection of information OMB Control No. 0648-0546 by expanding the number of vessels required to carry observers and call-in to the observer program. Prior to Amendment 21, NGOM-permitted vessels were not required to carry observers. Amendment 21 would require that NGOM vessels call in to the observer program and, when selected, procure and carry an observer. Expanding the observer call-in requirement to directed scallop fishing in the NGOM means that monitoring requirements will be consistent for all scallop permit types across the entirety of the Atlantic sea scallop resource within the U.S. Exclusive Economic Zone. This change increases the number of respondents by 110 (512 respondents to 622 respondents). This results in an additional 933 burden hours (5,252 hours to 6,185 hours) and an additional $5,608 ($44,937 to $50,545) in total annual cost burden to the respondents. Public reporting burden for calling into the observer program is estimated to average 10 minutes, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

We invite the general public and other Federal agencies to comment on proposed and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Written comments and recommendations for this information collection should be submitted on the following website: www.reginfo.gov/public/do/PRAMain. Find this particular information collection by using the search function and entering either the title of the collection or the OMB Control Number 0648-0546.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

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

The Mid-Atlantic Fishery Management Council (Council) manages the Atlantic mackerel fishery under the Mackerel, Squid, and Butterfish (MSB) Fishery Management Plan (FMP). Section 305(c) of the Magnuson-Stevens Act allows the Secretary to implement interim measures to reduce or address overfishing. In situations such as this, in which the Mid-Atlantic Council has begun the development of a rebuilding plan, section 304(e)(6) allows the Council to request the Secretary to implement interim measures to reduce overfishing, even if such measures are not sufficient themselves to stop overfishing, until such measures can be replaced by the rebuilding plan. As further described below, NMFS implements this action to adjust the domestic annual harvest (DAH, or commercial quota) from the previously implemented amount of 17,312 metric tons (mt) to 4,963 mt in order to minimize overfishing while the Council responds to the most recent stock assessment information and completes work on a revised rebuilding plan. This revised DAH takes into account new information on Canadian harvest and U.S. recreational landings.

The 2017 stock assessment indicated that Atlantic mackerel was overfished and subject to overfishing. To end overfishing and rebuild the species, the Council adopted a rebuilding plan under Framework Adjustment 13 to the Mackerel, Squid, and Butterfish FMP (84 FR 58053; October 30, 2019). The rebuilding plan became effective in November 2019 and set Atlantic mackerel catch levels to prevent overfishing and rebuild the stock by 2023 based on the strength of a larger than average year class from 2015. However, shortly after the rebuilding program was implemented, updated information, including a Canadian stock assessment, suggested that more recent recruitment was lower than expected when specifications were set in the original rebuilding plan. In response, the Council maintained, and we implemented, the overall 2019 acceptable biological catch (ABC) (29,184 mt) and DAH (17,312 mt) through 2023 instead of increasing catch levels based on expected rebuilding progress as a precautionary measure to help the species continue to rebuild as planned. On July 22, 2021, we published a final rule in the Federal Register (86 FR 38586), implementing the previously approved 2021-2022 Atlantic mackerel specifications to maintain the 2020 specifications.

At its July 2021 meeting, the Council's Scientific and Statistical Committee (SSC) reviewed the 2021 management track assessment results from the Northeast Fisheries Science Center, which concluded that Atlantic mackerel remains overfished, overfishing is occurring, and the 2015 recruitment has not been as productive as expected. Based on this information, the SSC recommended that measures be implemented to eliminate or minimize additional catch for the rest of 2021 and 2022. At its August 2021 meeting, the Council requested that NMFS take action to reduce potential mackerel overfishing while it develops a rebuilding plan for this species during the 2022 fishing year. In response to the Council's request and to address concerns over 2021 catch, we recently published an in-season action reducing the mackerel possession limit to 5,000 lb (2,268 kg) for the remainder of 2021 (86 FR 57376; October 15, 2021) to minimize landings and overfishing based on the latest scientific information. We have also projected that the U.S. commercial fishery is expected to land over 5,400 mt of Atlantic mackerel during 2021. Therefore, taking into account new estimates of Canadian landings and U.S. recreational harvest, this rule will adjust the commercial 2022 DAH to 4,963 mt so that total catch in 2022 is similar to 2021.

Based on the recommendations of the SSC, the MSB Monitoring Committee, and the Council, this action sets the 2022 Atlantic mackerel specifications, specifically the DAH to 4,963 mt. These specifications also maintain the 129-mt river herring and shad catch cap. There is an Atlantic mackerel stock assessment update scheduled for 2022 that will inform future ABC specifications.

This temporary rule has an effective period limited by the Magnuson-Stevens Act to 180 days, with a potential extension of an additional 186 days. The Council has begun development of a revised rebuilding plan which it intends to be implemented by January 1, 2023. However, if the expected rulemaking implementing the rebuilding plan is not in place before the expiration of this rule (180 days following publication), an extension of the interim measures for 186 days will be considered.

Section 305(c) of the Magnuson-Stevens Act (16 U.S.C. 1855(c)) authorizes the Secretary of Commerce to implement interim measures to address overfishing. This action meets the 305(c) requirements for interim measures because it is necessary to minimize overfishing on the Atlantic mackerel stock that remains overfished while the Council develops a new rebuilding program for the stock.

While some changes resulting from the 2021 stock assessment were expected, the magnitude of the shift in the perception of stock status necessitating changes to the catch limits was not, and could not have been, foreseen. The assessment results only recently became available, after the Council took final action on, and we implemented, the 2022 specifications. Based on this new information, and only two years after the implementation of the original rebuilding program for mackerel, the Council must develop a new rebuilding plan to incorporate the most recent scientific information. However, given that the new information only recently became available, the Council could not complete an action to develop a new rebuilding plan and adjust specifications in time for the fishing year. Because of unforeseen specification adjustments necessary to address the recent stock assessment, the Council requested that NMFS take action to reduce potential additional Atlantic mackerel harvest in 2022 via a reduction in the commercial quota while the Council modifies Atlantic mackerel rebuilding for 2023. Delayed implementation of these measures increases the risk and magnitude of overfishing for 2022 by allowing the current 17,312 mt commercial catch rather than 4,963 mt, implemented by this rule.

These interim measures are intended to minimize overfishing in the Atlantic mackerel fishery and additional negative impacts to the already overfished fishery resource. Therefore, avoiding the serious conservation and management problem of subjecting the overfished Atlantic mackerel stock to continued overfishing conditions due to reasonably unforeseen circumstances justifies these interim measures, and outweighs the benefit of advance notice and comment.

The Magnuson-Stevens Act limits NMFS' authority to implement interim measures for an initial period of 180 days, with a potential extension up to an additional 186 days, if warranted. The public has an opportunity to comment on the specification measures in this temporary rule (see ADDRESSES ). After considering public comments on this rule, NMFS may extend the interim measures for one additional period of not more than 186 days to maintain the interim measures until permanent rulemaking can be implemented.

NMFS issues this action pursuant to section 305(c) of the Magnuson-Stevens Act. This action is required by 50 CFR part 648, which was issued pursuant to section 304(b).

The Assistant Administrator for Fisheries, NOAA, finds that it would be unnecessary and contrary to the public interest to provide for prior notice and an opportunity for public comment, pursuant to 5 U.S.C. 553(b)(B). This action reduces the allowable Atlantic mackerel catch based on new assessment information that recently became available. This adjustment is allowed pursuant to section 305(c) of the Magnuson-Stevens Act in order to minimize overfishing while the Council responds to the new, updated information. A delay would be contrary to the public interest for the Atlantic mackerel fishery. Implementing a reduced DAH was anticipated and discussed during development and implementation of the original specifications action (86 FR 38586, June 22, 2021), as well as at the August and October 2021 Council meetings. Fishery stakeholders are anticipating action to reduce mackerel harvest in 2022, and they will have the opportunity to comment on this action in response to the current public notice.

Where the public has had an opportunity to review the development of the Council motion to reduce Atlantic mackerel catch for 2022 based on the best available science (the purpose of this action), the value of a delay in its effectiveness would be outweighed by the need to implement this adjustment as quickly as possible. Failure to implement this action as quickly as possible for the 2022 fishing year could result in 2022 catch that could have potential negative biological impacts, as well as the potential to result in lower catch limits in the future than would otherwise be required by the new rebuilding plan. The Atlantic mackerel fishery is active in November-February. Given the high-volume nature of the fishery and the reduced DAH, it is likely that the fishery will exceed the DAH. A delay would be contrary to the public interest while we take action to reduce potential mackerel overfishing while the Council responds to recent scientific information and develops a rebuilding plan and new specifications for this species. For the same reasons, the Assistant Administrator finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay of effectiveness period for this. This rule should be effective as close to January 1, 2022, as possible, to fully realize the intended benefits to this high-volume fishery that is most active during the November-February months.

This action is being taken pursuant to the 305(c) emergency action and interim measures provision of the Magnuson-Stevens Act and is exempt from OMB review.

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

This rule does not duplicate, conflict, or overlap with any existing Federal rules.

This action would not establish any new reporting or record-keeping requirements.

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