Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Schempp-Hirth Flugzeugbau GmbH Model Ventus-2a and Ventus-2b gliders. The NPRM published in the Federal Register on December 6, 2021 (86 FR 68937). The NPRM was prompted by MCAI originated by the European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union. EASA issued AD 2020-0063, dated March 18, 2020 (referred to after this as “the MCAI”), to address an unsafe condition on Schempp-Hirth Flugzeugbau GmbH Models Ventus-2a, Ventus-2b, Ventus-2c, Ventus-2cM, and Ventus-2cT gliders. The MCAI states:

You may examine the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-1019.

In the NPRM, the FAA proposed to require compliance with the version of the TN (revision 2) identified in the MCAI. The FAA is issuing this AD to address the unsafe condition on these products.

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

After the NPRM was issued, the FAA received a copy of Schempp-Hirth Flugzeugbau GmbH Working Instructions for Technical Note No. 349-42/825-57, Revision 4, dated August 31, 2020. This revision of the TN provides clarification regarding the inspection area and instructions (including specifying that the mount is an affected part that must be inspected), the types of corrosion, and repair methods and instructions. This revision of the service information does not require additional work, because it does not impose any substantive changes to the procedures in revision 2.

As a result, the FAA has revised paragraph (g) of this AD to specify that the mount is an affected part that must be inspected and to require compliance with Schempp-Hirth Flugzeugbau GmbH Working Instructions for Technical Note No. 349-42/825-57, Revision 4, dated August 31, 2020. The FAA has also added paragraph (h) of this AD to provide credit for work done before the effective date of the AD using Schempp-Hirth Flugzeugbau GmbH Working Instructions for Technical Note No. 349-42/825-57, Revision 2, dated February 24, 2020; or Schempp-Hirth Flugzeugbau GmbH Working Instructions for Technical Note No. 349-42/825-57, Revision 3, dated March 31, 2020. Lastly, the FAA has revised the preamble of this final rule accordingly.

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 referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for the changes described previously, this AD is adopted as proposed in the NPRM.

The FAA reviewed Schempp-Hirth Flugzeugbau GmbH Working Instructions for Technical Note No. 349-42/825-57, Revision 4, dated August 31, 2020. This service information contains procedures for inspecting the pushrod, joint head, mount, and bell crank of the flaperon control of the wings for corrosion or other damage, and replacing or servicing (repair) if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA also reviewed Schempp-Hirth Flugzeugbau GmbH Technical Note No. 349-42/825-57, Revision 4, dated August 31, 2020. This service information specifies inspecting the pushrod, joint head, mount, and bell crank of the flaperon control of the wings by following Schempp-Hirth Flugzeugbau GmbH Working Instructions for Technical Note No. 349-42/825-57, Revision 4, dated August 31, 2020.

The MCAI applies to Schempp-Hirth Flugzeugbau GmbH Model Ventus-2c, Ventus-2cM, and Ventus-2cT gliders, and this AD does not because they do not have an FAA type certificate.

The FAA estimates that this AD affects 33 gliders of U.S. registry. The FAA also estimates that it would take about 1 work-hour per glider to comply with the inspection required by this AD. Based on these figures, the FAA estimates the inspection cost of this AD on U.S. operators to be $2,805 or $85 per glider, per inspection cycle.

In addition, the FAA estimates that each repair or replacement action required by this AD would take up to 8 work-hours and require parts costing up to $800. Based on these figures, the FAA estimates the repair or replacement cost of this AD on U.S. operators to be up to $1,480 per glider.

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 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:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 787-8, 787-9, and 787-10 airplanes. The NPRM published in the Federal Register on October 6, 2021 (86 FR 55538). The NPRM was prompted by significant changes, including new or more restrictive requirements, made to the AWLs related to fuel tank ignition prevention and the nitrogen generation system. In the NPRM, the FAA proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. The FAA is issuing this AD to address ignition sources inside the fuel tanks and increased flammability exposure of the fuel tanks caused by latent failures, alterations, repairs, or maintenance actions, which could result in a fuel tank explosion and consequent loss of an airplane.

The FAA received comments from the Air Line Pilots Association, International (ALPA) and United Airlines who supported the NPRM without change.

The FAA received additional comments from two commenters, including Boeing and American Airlines (AA). The following presents the comments received on the NPRM and the FAA's response to each comment.

Boeing asked for clarification that the applicability specified in the proposed AD is the same as the effectivity specified in the referenced service information. Boeing stated that the effectivity in the service information mandated by the proposed AD does not apply to Model 787-8 airplanes having line numbers 1 through 5.

The FAA agrees that this AD does not apply to Model 787-8 airplanes having line numbers 1 through 5. The FAA has changed paragraph (c) of this AD accordingly.

Boeing and AA asked for clarification that the initial compliance time specified in paragraph (g)(11)(ii)(B) of the proposed AD is applicable only to Model 787 airplanes having line numbers 10, 13, and 15 through 19 inclusive. Boeing stated that AWL No. 57-AWL-13 explicitly identifies those specific line numbers instead of referring to Boeing Service Bulletin B787-81205-SB570030-00. AA stated that for airplanes not included in the effectivity of the referenced service bulletin, operators could misinterpret the actions required by paragraph (g)(11)(ii)(B) for those airplanes, regardless of the applicability specified in AWL No. 57-AWL-13.

The FAA agrees that the initial compliance time specified in paragraph (g)(11)(ii)(B) of this AD is applicable only to Model 787 airplanes having line numbers 10, 13, and 15 through 19 inclusive. The FAA has revised paragraph (g)(11)(ii)(B) accordingly.

Boeing asked for clarification that the initial compliance time for performing an inspection in accordance with each ALI task specified in paragraphs (g)(1) through (14) of the proposed AD is applicable only to the airplanes specified in the applicability of each ALI task. Boeing also asked for clarification that the proposed AD does not supersede the applicability of the ALI tasks. Boeing stated that each ALI task has a unique applicability, and some of these tasks only apply to a subset of the airplanes affected by the proposed AD.

The FAA agrees to provide clarification. This AD requires incorporation of the service information into the maintenance or inspection program. After this action is done, compliance with each ALI or critical design configuration control limitation (CDCCL) task incorporated into the maintenance or inspection program is required by the operating rules in 14 CFR 91.403(c) and 43.16. This AD does not change or supersede any ALI or CDCCL task or its applicability. Compliance is based on the applicability specified in each ALI or CDCCL task. Therefore, the FAA has not changed this AD in this regard.

Boeing asked for clarification regarding a recent inspection referenced in the sub-paragraphs to paragraphs (g)(1) through (14) of the proposed AD. Boeing asked that the FAA clarify that a recent inspection performed on an airplane can be the inspection done in accordance with an ALI task of the existing maintenance or inspection program applicable to that airplane. Boeing stated that without clarification, its interpretation is that the initial inspections are required to be performed in accordance with the ALI tasks provided in the service information mandated by paragraph (g) of the AD.

The FAA agrees to provide clarification. The initial compliance time specified in the sub-paragraphs to paragraph (g)(1) through (14) of this AD is the compliance time to perform the first inspection in accordance with each ALI task, after incorporation of the service information into the maintenance or inspection program as required by paragraph (g) of this AD. The “most recent” inspection referenced in those paragraphs is the inspection performed in accordance with an ALI task of the operator's existing maintenance or inspection program prior to incorporation of the service information mandated by paragraph (g) of this AD. Certain ALI tasks from the same or earlier revisions of the service information mandated by paragraph (g) of this AD should already exist in the maintenance or inspection program. The requirements of paragraphs (g)(1) through (14) of this AD are intended to address the transition to the ALI tasks after accomplishment of the actions required by paragraph (g) of this AD, without disrupting the existing inspection intervals. Therefore, the FAA has not changed this AD in this regard.

Boeing asked that the compliance time to revise the maintenance/inspection program required by paragraph (g) of the proposed AD be changed from 180 to 240 days. Boeing stated that the majority of the inspections require entry into a wet fuel cell to access and possibly repair structural sealant applications, at unique facilities and with significant aircraft downtime. Boeing added that an extension of the compliance time to 240 days would allow additional flexibility to operators. Boeing also asked whether an initial inspection done within 180 days after the effective date of the AD must be performed in accordance with the service information mandated by this AD or if it is allowed to be performed under the existing maintenance or inspection program applicable to that airplane. Boeing stated that performing the initial inspection within 180 days after the effective date of the AD seems to conflict with the requirement to revise the maintenance or inspection program within 180 days after the effective date of the AD.

The FAA does not agree to extend the compliance time to revise the maintenance/inspection program required by paragraph (g) of this AD from 180 to 240 days because the FAA has determined that this compliance time is adequate for operators to incorporate maintenance or inspection program changes for their affected fleet. The 180-day compliance time required by paragraph (g) is unrelated to the initial compliance time for performing the inspections in accordance with each ALI task specified in the service information mandated by this AD. Paragraph (g) requires incorporation of the service information into the maintenance or inspection program within 180 days after the effective date of this AD. Once the maintenance/inspection program has been revised, compliance with each ALI or CDCCL task of the maintenance or inspection program is required by the operating rules in 14 CFR 91.403(c) and 43.16. For clarification, the initial compliance time to perform an inspection after incorporation of the service information into the maintenance or inspection program is specified in paragraphs (g)(1) through (14) of this AD. Therefore, the FAA has not changed this AD in this regard.

AA asked that the FAA specify the revision level of Boeing Service Bulletin B787-81205-SB570030-00, referenced in paragraph (g)(11)(ii)(A) of the proposed AD. AA stated that specifying the revision level of the service bulletin will reduce any ambiguity for the requirements associated with that revision level.

The FAA does not agree to include the revision level of Boeing Service Bulletin B787-81205-SB570030-00. Including the revision level of the referenced service bulletin could potentially conflict with another AD that mandates that service bulletin. Boeing Service Bulletin B787-81205-SB570030-00, Issue 001, dated March 17, 2017, is required by AD 2018-11-13, Amendment 39-19301 (83 FR 25894, June 5, 2018) (AD 2018-11-13). If a later revision of that service bulletin is issued in the future as an (alternative method of compliance) AMOC to AD 2018-11-13, the actions in the later revision can be done equivalent to Issue 001. Specifying “Issue 001 or later” in paragraph (g)(11)(ii)(A) of this AD would make it consistent with the requirements in AD 2018-11-13; however, if AD 2018-11-13 must be superseded to mandate a later revision of the service bulletin, this AD would also have to be superseded if the revision level of the service bulletin is specified. Therefore, the FAA has determined that the revision level of the referenced service bulletin will not be included in this AD, and has not changed this AD in this regard.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Boeing 787 Special Compliance Items/Airworthiness Limitations, D011Z009-03-04, dated August 2018. This service information specifies AWLs that include ALIs and CDCCLs related to fuel tank ignition prevention and the nitrogen generation system. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA estimates that this AD affects 121 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the FAA estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2020-16-01, Amendment 39-21185 (85 FR 47013, August 4, 2020) (AD 2020-16-01). AD 2020-16-01 applied to all Airbus SAS Model A318, A319, A320, and A321 series airplanes. AD 2020-16-01 required repetitive cleaning and greasing of affected cargo door seals (both OEM and PMA parts). The NPRM published in the Federal Register on October 22, 2021 (86 FR 58597). The NPRM was prompted by reports of low halon concentration in the forward and aft cargo compartments due to air leakage through cargo compartment door seals, and the FAA's determination that additional rulemaking is necessary to require replacement of PMA part number (P/N) D5237106020400S with improved cargo door seals and to limit certain flight operations until the improved cargo door seals are installed. In the NPRM, the FAA proposed to retain certain actions required by AD 2020-16-01; require replacing certain forward and aft cargo compartment door seals with new seals and installing a placard on the cargo compartment doors; and for certain airplanes, implement an operational limitation for certain routes. In the NPRM, the FAA proposed to limit the applicability to airplanes that have certain PMA parts installed because the FAA issued AD 2021-18-04, Amendment 39-21705 (86 FR 51265, September 15, 2021) (AD 2021-18-04) to address the OEM parts.

The FAA is issuing this AD to address low halon concentration. This condition, if not corrected, could affect the fire extinguishing system efficiency in the cargo compartments, possibly resulting in failure of the system to contain a cargo compartment fire.

The FAA received comments from Air Line Pilots Association, Inc. (ALPA), who supported the NPRM without change, and United Airlines, who also supported the NPRM. The FAA also received additional comments from United Airlines. The following presents the comments received on the NPRM and the FAA's response to each comment.

United Airlines requested that the FAA clarify whether the proposed AD would “supersede” AD 2020-16-01, as specified in the SUMMARY of the NPRM, or would “replace” AD 2020-16-01, as specified in paragraph (b) of the proposed AD.

The FAA agrees to clarify. The words supersede and replace have the same meaning and are interchangeable. The word “replace” used in paragraph (b) of this AD is required by the Office of the Federal Register. The FAA has not changed this AD in this regard.

United Airlines requested that the FAA allow the use of later approved revisions of Airbus Service Bulletin A320-52-1195, Revision 01, dated December 15, 2020, and Airbus Service Bulletin A320-52-1196, dated October 12, 2020, as acceptable methods of compliance with the requirements of the new proposed AD.

The FAA may not refer to any document that does not yet exist in an AD. In general terms, the FAA is required by Office of the Federal Register (OFR) regulations for approval of materials incorporated by reference, as specified in 1 CFR 51.1(f), to either publish the service document contents as part of the actual AD language; or submit the service document to the OFR for approval as referenced material, in which case the FAA may only refer to such material in the text of an AD. The AD may refer to the service document only if the OFR approved it for incorporation by reference. See 1 CFR part 51.

To allow operators to use later revisions of the referenced document (issued after publication of the AD), either the FAA must revise the AD to reference specific later revisions, or operators must request approval to use later revisions as an alternative method of compliance with this AD under the provisions of paragraph (m) of this AD.

United Airlines stated that paragraph (b) of AD 2021-18-04, “Affected ADs,” refers to AD 2020-16-01. United Airlines inquired whether the FAA is planning to revise the “Affected ADs” paragraph of AD 2021-18-04 with the new proposed AD number that is superseding or replacing AD 2020-16-01.

The FAA agrees to clarify. AD 2021-18-04 applies only to OEM parts and affects AD 2020-16-01 because AD 2020-16-01 applied to both OEM parts and PMA parts. This AD applies only to PMA parts and supersedes AD 2020-16-01. The terminating actions for cleaning and greasing as required by AD 2021-18-04, AD 2020-16-01, and this new AD (that will replace AD 2020-16-01), are the same: Replace the seals with new seal part numbers as specified in the service information. However, AD 2021-18-04 does not affect this AD as each AD is independent of each other. It is not necessary to change paragraph (b) of AD 2021-18-04 to refer to this AD because this AD does not contain any requirements for OEM parts.

Paragraph (j) of the proposed AD included an operational limitation and specified that amending the existing AFM was one method to comply with the requirement. The FAA has determined that revising the existing AFM is the method most operators would use to comply with the requirement. In addition, the FAA determined the AFM revision should refer to the operational limitation language as specified in a figure for clarity. The FAA has revised paragraph (j) of this AD to require revising the existing AFM to include an operational limitation specified in figure 1 to paragraph (j) of this AD. Operators may request an alternative method of compliance using the procedures specified in paragraph (m) of this AD if they have alternative methods to comply with the operational limitations that provide an equivalent level of safety.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Airbus Service Bulletin A320-52-1195, Revision 01, dated December 15, 2020, and Airbus Service Bulletin A320-52-1196, dated October 12, 2020. This service information specifies procedures for replacing the forward and aft cargo compartment door seals with new seals, among other actions, and installing a placard on the cargo compartment doors. These documents are distinct since they apply to different airplane models.

This AD also requires European Union Aviation Safety Agency (EASA) AD 2021-0049, dated February 18, 2021, which the Director of the Federal Register approved for incorporation by reference as of October 20, 2021 (86 FR 51265, September 15, 2021).

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA estimates that this AD affects 1,768 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

Background

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0161, dated July 6, 2021 (EASA AD 2021-0161) (also referred to as the MCAI), to correct an unsafe condition for all Airbus SAS Model A350-941 and -1041 airplanes.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A350-941 and -1041 airplanes. The NPRM was published in the Federal Register on December 17, 2021 (86 FR 71587). The NPRM was prompted by a report that in the event of a specific discrete wire failure, the LGERS may not be able to complete landing gear retraction when commanded by moving the landing gear lever to the UP position. The NPRM proposed to require revising the operator's existing FAA-approved MEL for the LGERS, as specified in EASA AD 2021-0161.

The FAA received a comment from The Air Line Pilots Association, International (ALPA), who supported the NPRM without change.

The FAA reviewed the relevant data, considered the comment received, and determined that air safety requires adopting this AD as proposed. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products.

EASA AD 2021-0161 describes procedures for revising the LGERS for master minimum equipment list (MMEL) item 32-31-01. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 19 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain GE CF34-10E2A1, CF34-10E5, CF34-10E5A1, CF34-10E6, CF34-10E6A1, CF34-10E7, and CF34-10E7-B (CF34-10E) model turbofan engines. The NPRM published in the Federal Register on August 24, 2021 (86 FR 47264). The NPRM was prompted by a manufacturer investigation that revealed Teflon material in the strainer assembly screen after several reports of IFSDs and UERs on airplanes operating with GE CF34-10E5, CF34-10E5A1, CF34-10E6, and CF34-10E7 model turbofan engines. After investigation, the manufacturer determined that the failures were the result of Teflon oil seals disbonding from the aluminum housing when used with either high thermal stability (HTS) or high performance capability (HPC) oils. The stationary oil seal deterioration resulted from the failure of the bonding adhesive, known as EA9658, which does not have the high temperature capabilities as designed and is negatively impacted by the use of HTS or HPC oils. This deterioration results in Teflon particles collecting in the strainer assembly. The manufacturer determined that CF34-10E2A1, CF34-10E6A1, and CF34-10E7-B model turbofan engines are subject to the same unsafe condition. In the NPRM, the FAA proposed to require initial and repetitive visual inspections of the strainer assembly screen. As a terminating action to the initial and repetitive visual inspections, the FAA proposed to require the replacement of the stationary oil seal, part number (P/N) B1316-00453 or P/N B1316-01274, installed at the No. 1 forward bearing. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received comments from four commenters. The commenters were the Air Line Pilots Association, International (ALPA), GE, Helvetic Airways AG (Helvetic Airways), and JetBlue Airways (JetBlue). The following presents the comments received on the NPRM and the FAA's response to each comment.

GE, Helvetic Airways, and JetBlue requested that the FAA change paragraph (c), Applicability, of this AD to align with GE CF34-10E Service Bulletin (SB) 72-0365 R04, dated April 27, 2021 (GE CF34-10E SB 72-0365 R04). GE specifically requested that the FAA include language that specifies the timeframe (after September 2014) to identify which stationary oil seals have adhesive EA9658 and are subject to the disbonding failure mode. GE and JetBlue noted that paragraph (c), Applicability, of the NPRM differs from GE CF34-10E SB 72-0365 R04, as it does not identify stationary oil seal, P/N B1316-00453 or P/N B1316-01274, replaced or repaired after September 2014, which is when the EA9658 adhesive was introduced to the field. GE and JetBlue commented that the NPRM, as written, would apply to all stationary oil seals, regardless of when they were manufactured or repaired. Helvetic Airways noted that paragraph (c), Applicability, of the NPRM does not account for the population of affected stationary oil seals, as identified in paragraph A., Effectivity, of GE CF34-10E SB 72-0365 R04.

In response to these comments, the FAA updated paragraph (c), Applicability, of this AD to specify this AD applies to GE CF34-10E model turbofan engines with a stationary oil seal, P/N B1316-00453 or P/N B1316-01274, installed at the No. 1 forward bearing, that has been repaired, overhauled, or entered into service after August 2014, and used HTS oil or HPC oil for 56 flight hours or more during the life of the stationary oil seal.

GE suggested that the FAA revise paragraph (c), Applicability, of this AD to include the list of engine serial numbers (ESNs), 424714 through 424892, as an additional but alternate approach to identify affected CF34-10E engines.

The FAA notes that the list of ESNs includes those engines that were produced with the affected stationary oil seal. Those new-make engines are included in paragraph (c), Applicability, of this AD by referencing the stationary oil seal, P/N B1316-00453 or P/N B1316-01274, which entered service after August 2014. The FAA did not change this AD as a result of this comment.

GE requested that the FAA update paragraph (g)(1)(i) of the NPRM to remove “at the next engine shop visit.” GE reasoned that the intent of GE CF34-10E SB 72-0365 R04 is to perform the inspection on-wing without removing the engine.

In response to GE's comment, the FAA has removed “at the next engine shop visit” and combined paragraphs (g)(1)(i) and (ii) of the NPRM into one paragraph, (g)(1) of this AD, to eliminate reference to an engine shop visit.

GE requested that the FAA update paragraph (i), Definition, of this AD to indicate that a part eligible for installation is a stationary oil seal with a P/N other than P/N B1316-00453 or P/N B1316-001274 and with FM57 adhesive. GE reasoned that there could be room for interpretation as to what P/N other than B1316-00453 and P/N B1316-01274 could be in the future, especially if the manufacturer redesigns the stationary oil seal with a new adhesive and a new failure mode is introduced.

The FAA disagrees with updating the definition of a part eligible for installation in paragraph (i) of this AD to include a reference to FM57 adhesive. The FAA cannot define a part eligible for installation based on future redesigns by the manufacturer. The FAA may consider future rulemaking if a new failure mode is discovered. The FAA did not change this AD as a result of this comment.

GE requested that the FAA revise paragraph (g)(1) of this AD to reference GE CF34-10E SB 72-0365 R04, R03, and R02. GE commented that paragraph (g)(1) of the NPRM references GE CF34-10E SB 72-0365 R04 to comply with the AD; however, some operators may have complied with earlier revisions of the service bulletin. GE reasoned that paragraph 3.A.(1)(d) of GE CF34-10E SB 72-0365 R04, R03, R02 are identical.

JetBlue requested that the FAA update this AD to allow credit for inspections performed using previous revisions of GE CF34-10E SB 72-0365. JetBlue commented that the NPRM specifically references GE CF34-10E SB 72-0365 R04. JetBlue reasoned that, in addition to R04 of GE CF34-10E SB 72-0365, they performed repetitive inspections in accordance with R03 and R02.

This AD does not mandate that operators use GE CF34-10E SB 72-0365 R04 to perform the visual inspections. GE CF34-10E SB 72-0365 R04 is referenced in paragraph (g), Required Actions, of this AD as guidance to perform the visual inspections of the strainer assembly screen. Therefore, if operators used earlier versions of the service information to perform the visual inspections, they would be in compliance with the requirements in paragraph (g) of this AD. Regarding the comment requesting that this AD include credit for pervious actions using earlier versions of the service information, the FAA notes that this change is unnecessary. Paragraph (f) of this AD mandates compliance with the required actions, unless already done. The FAA did not change this AD as a result of this comment.

ALPA expressed support for the AD as written.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed GE CF34-10E Service Bulletin 72-0365 R04, dated April 27, 2021. This service information specifies procedures for performing a visual inspection and a borescope inspection of the strainer assembly for Teflon particles. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA estimates that this AD affects 46 engines installed on airplanes of U.S. registry.

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

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

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR, 71186, December 15, 2021) for Docket No. FAA-2021-1053 to amend Class E airspace extending upward from 700 feet above the surface for Griffin, GA.

Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace listed in this document will be published subsequently in FAA Order JO 7400.11.

This document amends FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic routes, and reporting points.

The FAA amends 14 CFR part 71 by amending Class E airspace extending upward from 700 feet above the surface at Griffin-Spalding County Airport, Griffin, GA. This action removes the city associated with the Griffin-Spalding County Airport legal description to comply with FAA Order JO 7400.2. In addition, this action increases the radius of the airport to 8.7 miles (formerly 6.3 miles), and increases the extensions off the airport's 137° bearing and 317° bearings to 10.5 miles (formerly 10.3 miles).

Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the FAA Order JO 7400.11.

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

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

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

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

The Taxpayer First Act (TFA or Act), Public Law 116-25, 133 Stat. 981, was enacted on July 1, 2019. Section 1405(b) of the Act, codified at 26 U.S.C. 7623(d) and referred to throughout these interim final rules as the TFA “anti-retaliation,” “employee protection,” or “whistleblower” provision, prohibits retaliation by an employer, or any officer, employee, contractor, subcontractor, or agent of such employer against an employee in the terms and conditions of employment in reprisal for the employee having engaged in protected activity. Protected activity under TFA includes any lawful act done by an employee to provide information, cause information to be provided, or otherwise assist in an investigation regarding underpayment of tax or conduct which the employee reasonably believes constitutes a violation of the internal revenue laws or any provision of Federal law relating to tax fraud. To be protected, the information or assistance must be provided to one of the persons or entities listed in the statute, which include the Internal Revenue Service (IRS), the Secretary of the Treasury, the Treasury Inspector General for Tax Administration, the Comptroller General of the United States, the Department of Justice, the United States Congress, a person with supervisory authority over the employee, or any other person working for the employer who has the authority to investigate, discover, or terminate misconduct. The Act also protects employees from retaliation in reprisal for any lawful act done to testify, participate in, or otherwise assist in any administrative or judicial action taken by the IRS relating to an alleged underpayment of tax or any violation of the internal revenue laws or any provision of Federal law relating to tax fraud. These interim final rules establish procedures for the handling of retaliation complaints under the Act.

TFA incorporates the rules, procedures, and burdens of proof set forth in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121(b), with some exceptions. Under TFA, a person who believes that they have been discharged or otherwise retaliated against in violation of the Act (complainant) may file a complaint with the Secretary of Labor (Secretary) within 180 days of the alleged retaliation. Upon receipt of the complaint, the Secretary must provide written notice to the person or persons named in the complaint alleged to have violated the Act (respondent) and to the complainant's employer (which in most cases will be the respondent) of the filing of the complaint, the allegations contained in the complaint, the substance of the evidence supporting the complaint, and the rights afforded the respondent throughout the investigation. The Secretary must then conduct an investigation, within 60 days of receipt of the complaint, after affording the respondent an opportunity to submit a written response and to meet with the investigator to present statements from witnesses.

The Act provides that the Secretary may conduct an investigation only if the complainant has made a prima facie showing that the protected activity was a contributing factor in the adverse action alleged in the complaint and the respondent has not demonstrated, through clear and convincing evidence, that it would have taken the same adverse action in the absence of that activity. (See § 1989.104 for a summary of the investigation process.) OSHA interprets the prima facie case requirement as allowing the complainant to meet this burden through the complaint as supplemented by interviews of the complainant.

After investigating a complaint, the Secretary will issue written findings. If, as a result of the investigation, the Secretary finds there is reasonable cause to believe that retaliation has occurred, the Secretary must notify the complainant and respondent of those findings, and issue a preliminary order providing all relief necessary to make the complainant whole, including, where appropriate: Reinstatement with the same seniority status that the complainant would have had but for the retaliation; the sum of 200 percent of the amount of back pay and 100 percent of all lost benefits, with interest; and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees.

The complainant and the respondent then have 30 days after the date of receipt of the Secretary's notification in which to file objections to the findings and/or preliminary order and request a hearing before an Administrative Law Judge (ALJ). The filing of objections will not stay any reinstatement order. However, under OSHA's regulations, the filing of objections will stay any other remedy in the preliminary order. If a hearing before an ALJ is not requested within 30 days, the preliminary order becomes final and is not subject to judicial review.

If a hearing is held, the Act requires the hearing be conducted “expeditiously.” The Secretary then has 120 days after the conclusion of any hearing to issue a final order, which may provide appropriate relief or deny the complaint. Until the Secretary's final order is issued, the Secretary, the complainant, and the respondent may enter into a settlement agreement that terminates the proceeding. Where the Secretary has determined that a violation has occurred, the Secretary will order all relief necessary to make the complainant whole, including, where appropriate, reinstatement with the same seniority status that the complainant would have had, but for the retaliation; the sum of 200 percent of the amount of back pay and 100 percent of all lost benefits, with interest; and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees. The Secretary also may award a prevailing employer reasonable attorney fees, not exceeding $1,000, if the Secretary finds that the complaint is frivolous or has been brought in bad faith. Within 60 days of the issuance of the final order, any person adversely affected or aggrieved by the Secretary's final order may file an appeal with the United States Court of Appeals for the circuit in which the violation allegedly occurred or the circuit where the complainant resided on the date of the violation.

The Act permits the employee to bring an action for de novo review of a TFA retaliation claim in the appropriate United States district court in the event that the Secretary has not issued a final decision within 180 days after the filing of the complaint. The provision provides that the court will have jurisdiction over the action without regard to the amount in controversy and that either party is entitled to request a trial by jury. The Act also states that the rights and remedies provided in the TFA anti-retaliation provision may not be waived by any agreement, policy form, or condition of employment, including by a predispute arbitration agreement. No predispute arbitration agreement is valid or enforceable, if the agreement requires arbitration of a dispute arising under the TFA anti-retaliation provision. Finally, under the Act, nothing in the TFA anti-retaliation provision shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law, or under any collective bargaining agreement.

The regulatory provisions in this part have been written and organized to be consistent with other whistleblower regulations promulgated by OSHA to the extent possible within the bounds of the statutory language of the Act. Responsibility for receiving and investigating complaints under the Act has been delegated to the Assistant Secretary for Occupational Safety and Health (Assistant Secretary) by Secretary of Labor's Order No. 08-2020 (May 15, 2020), 85 FR 58393 (September 18, 2020). Hearings on determinations by the Assistant Secretary are conducted by the Office of Administrative Law Judges, and appeals from decisions by ALJs are decided by the ARB. See Secretary of Labor's Order 01-2020 (Feb. 21, 2020), 85 FR 13024-01 (Mar. 6, 2020) (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board).

This section describes the purpose of the regulations implementing the anti-retaliation provisions of TFA and provides an overview of the procedures covered by these regulations.

This section includes the general definitions of certain terms used in § 1405(b) of TFA, 26 U.S.C. 7623(d), which are applicable to the Act's anti-retaliation provision. Consistent with the approach that OSHA has taken in implementing other whistleblower protection provisions and with applicable ARB case law, the interim final rule defines “employee” as “an individual presently or formerly working for, an individual applying to work for, or an individual whose employment could be affected by, another person.” See, e.g., 29 CFR 1979.101 (AIR21 definition of employee); 29 CFR 1980.101(g) (Sarbanes-Oxley Act of 2002 (SOX) definition of employee). In OSHA's view, consistent with TFA's language protecting employees from retaliation for providing information regarding “any conduct which the employee reasonably believes constitutes a violation of the internal revenue laws,” the definition of “employee” in the interim final rule encompasses individuals who allege that they are employees, can show some evidence that the respondent exercises control over the terms and conditions of their employment or other factors tending to demonstrate that an employer-employee relationship exists, and allege that they have suffered retaliation for having reported that their employers have violated tax laws by failing or refusing to make required withholdings, deductions, and/or contributions on their behalf. See Green v. OPCON, Inc., ARB Case No. 2018-0007, 2020 WL 2319031, at *3 (Apr. 9, 2020) (explaining the ARB's case law applying a “right-to-control” test and the common law test in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 322-23 (1992)).

The interim final rule defines “person” as “an individual, partnership, company, corporation, association (incorporated or unincorporated), trust, or estate,” based on the definition found in the Internal Revenue Code. See 26 U.S.C. 7701(a)(1).

This section describes the activities that are protected under the Act and the conduct that is prohibited in response to any protected activities. The Act prohibits an employer, or any officer, employee, contractor, subcontractor, or agent of such employer from discharging, demoting, suspending, threatening, harassing or in any other manner retaliating against an employee in the terms and conditions of employment in reprisal for the employee having engaged in protected activity. Protected activity under TFA includes any lawful act by an employee to provide information, cause information to be provided, or otherwise assist in an investigation regarding underpayment of tax or conduct which the employee reasonably believes constitutes a violation of the internal revenue laws or any provision of Federal law relating to tax fraud. To be protected, the information or assistance must be provided to one of the persons or entities listed in the statute, which include the IRS, the Secretary of the Treasury, the Treasury Inspector General for Tax Administration, the Comptroller General of the United States, the Department of Justice, the United States Congress, a person with supervisory authority over the employee, or any other person working for the employer who has the authority to investigate, discover, or terminate misconduct. The Act also protects employees from discharge or other actions in reprisal for any lawful act done to testify, participate in, or otherwise assist in any administrative or judicial action taken by the IRS relating to an alleged underpayment of tax or any violation of the internal revenue laws or any provision of Federal law relating to tax fraud. More information regarding Federal tax laws and the IRS's regulations can be found at www.IRS.gov.

Under the Act, an employee who provides information, causes information to be provided, or assists in an investigation is protected as long as the employee reasonably believes that the conduct at issue violates internal revenue laws or any provision of Federal law relating to tax fraud. To have a reasonable belief that there is a violation of relevant law, the employee must subjectively believe that the conduct is a violation and that belief must be objectively reasonable. See, e.g., Rhinehimer v. U.S. Bancorp. Invs., Inc., 787 F.3d 797, 811 (6th Cir. 2015) (discussing the reasonable belief standard under analogous language in the SOX whistleblower provision, 18 U.S.C. 1514A) (citations omitted); Harp v. Charter Commc'ns, Inc., 558 F.3d 722, 723 (7th Cir. 2009) (agreeing with First, Fourth, Fifth, and Ninth Circuits that determining reasonable belief under the SOX whistleblower provision requires analysis of the complainant's subjective belief and the objective reasonableness of that belief); Sylvester v. Parexel Int'l LLC, ARB No. 07-123, 2011 WL 2165854, at *11-12 (ARB May 25, 2011) (same). The requirement that the complainant have a subjective, good faith belief is satisfied so long as the complainant actually believed that the conduct at issue violated the relevant law or regulation. See Sylvester, 2011 WL 2165854, at *11-12 (citing Harp, 558 F.3d at 723; Day v. Staples, Inc., 555 F.3d 42, 54 n.10 (1st Cir. 2009)). The objective reasonableness of a complainant's belief is typically determined “based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee.” Harp, 558 F.3d at 723 (quoting Allen v. Admin. Review Bd., 514 F.3d 468, 477 (5th Cir. 2008)). However, the complainant need not show the conduct constituted an actual violation of law. Pursuant to this standard, an employee's whistleblower activity is protected when it is based on a reasonable, but mistaken, belief that a violation of the relevant law has occurred. See Van Asdale v. Int'l Game Techs., 577 F.3d 989, 1001 (9th Cir. 2009); Allen, 514 F.3d at 477.

This section explains the requirements for filing a retaliation complaint under TFA. To be timely, a complaint must be filed within 180 days of when the alleged violation occurs. Under Delaware State College v. Ricks, 449 U.S. 250, 258 (1980), an alleged violation occurs when the retaliatory decision has been both made and communicated to the complainant. In other words, the limitations period commences once the employee is aware or reasonably should be aware of the employer's decision to take an adverse action. EEOC v. United Parcel Serv., Inc., 249 F.3d 557, 561-62 (6th Cir. 2001). The time for filing a complaint under TFA may be tolled for reasons warranted by applicable case law. For example, OSHA may consider the time for filing a complaint to be tolled if a complainant mistakenly files a complaint with an agency other than OSHA within 180 days after an alleged adverse action. Xanthopoulos v. U.S. Dep't of Labor, 991 F.3d 823, 832 (7th Cir. 2021) (affirming ARB's refusal to toll the statute of limitations under SOX and explaining the limited circumstances in which tolling is appropriate for a timely filing in the wrong forum).

Complaints filed under TFA need not be in any particular form. They may be either oral or in writing. If the complainant is unable to file the complaint in English, OSHA will accept the complaint in any language. With the consent of the employee, complaints may be filed by any person on the employee's behalf.

This section describes the procedures that apply to the investigation of TFA complaints. Paragraph (a) of this section outlines the procedures for notifying the respondent, the employer (if different from the respondent), and the IRS of the complaint and notifying the respondent of the rights under these regulations. Paragraph (b) describes the procedures for the respondent to submit the response to the complaint. Paragraph (c) specifies that OSHA will request that the parties provide each other with copies of their submissions to OSHA during the investigation and that, if a party does not provide such copies, OSHA generally will do so at a time permitting the other party an opportunity to respond to those submissions. Before providing such materials, OSHA will redact them consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. Paragraph (d) of this section discusses confidentiality of information provided during investigations.

Paragraph (e) of this section sets forth the applicable burdens of proof. TFA incorporates the burdens of proof in AIR21. Thus, in order for OSHA to conduct an investigation, TFA requires that a complainant make an initial prima facie showing that a protected activity was “a contributing factor” in the adverse action alleged in the complaint, i.e., that the protected activity, alone or in combination with other factors, affected in some way the outcome of the employer's decision. The complainant will be considered to have met the required burden for OSHA to commence an investigation if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing. The complainant's burden at this stage may be satisfied, for example, if the complainant shows that the adverse action took place shortly after the protected activity.

If the complainant does not make the required prima facie showing, the investigation must be discontinued and the complaint dismissed. See Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) (noting that the burden-shifting framework of the Energy Reorganization Act of 1974, as amended, (ERA) which is the same as that under TFA, serves a “gatekeeping function” intended to “stem [ ] frivolous complaints”). Even in cases where the complainant successfully makes a prima facie showing, TFA requires that the investigation must be discontinued if the employer demonstrates, by clear and convincing evidence, that it would have taken the same adverse action in the absence of the protected activity. Thus, OSHA must dismiss the complaint and not investigate further if either: (1) The complainant fails to make the prima facie showing that protected activity was a contributing factor in the alleged adverse action; or (2) the employer rebuts that showing by clear and convincing evidence that it would have taken the same adverse action absent the protected activity.

Assuming that an investigation proceeds beyond the gatekeeping phase, the statute requires OSHA to determine whether there is reasonable cause to believe that protected activity was a contributing factor in the alleged adverse action. A contributing factor is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.” Wiest v. Tyco Elec. Corp., 812 F.3d 319, 330 (3d Cir. 2016) (discussing “contributing factor standard” under SOX); Feldman v. Law Enforcement Assocs. Corp., 752 F.3d 339, 348 (4th Cir. 2014) (same); Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1136 (10th Cir. 2013) (same). A conclusion that protected activity was a contributing factor in an adverse action can be based on direct evidence or circumstantial evidence “such as the temporal proximity between the protected activity and the adverse action, indications of pretext such as inconsistent application of policies and shifting explanations, antagonism or hostility toward protected activity, the relation between the discipline and the protected activity, and the presence [or absence] of intervening events that independently justify” the adverse action. Hess v. Union Pac. R.R. Co., 898 F.3d 852, 858 (8th Cir. 2018) (quoted source omitted) (discussing the contributing factor standard under the Federal Railroad Safety Act).

If OSHA finds reasonable cause to believe that the alleged protected activity was a contributing factor in the adverse action, OSHA may not order relief if the employer demonstrates by “clear and convincing evidence” that it would have taken the same action in the absence of the protected activity. See 49 U.S.C. 42121(b)(2)(B)(iv). The “clear and convincing evidence” standard is a higher burden of proof than a “preponderance of the evidence” standard. Clear and convincing evidence is evidence indicating that the thing to be proved is highly probable or reasonably certain. Clarke v. Navajo Express, ARB No. 09-114, 2011 WL 2614326, at *3 (ARB June 29, 2011).

Paragraph (f) describes the procedures OSHA will follow prior to the issuance of findings and a preliminary order when OSHA has reasonable cause to believe that a violation has occurred and reinstatement is required. Its purpose is to ensure compliance with the Due Process Clause of the Fifth Amendment, as interpreted by the Supreme Court in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987) (requiring OSHA to give a Surface Transportation Assistance Act respondent the opportunity to review the substance of the evidence and respond prior to ordering preliminary reinstatement).

This section provides that, on the basis of information obtained in the investigation, the Assistant Secretary will issue, within 60 days of the filing of a complaint, written findings regarding whether or not there is reasonable cause to believe that the complaint has merit. If the findings are that there is reasonable cause to believe that the complaint has merit, the Assistant Secretary will order all relief necessary to make the employee whole, including reinstatement with the same seniority status that the complainant would have had, but for the retaliation; the sum of 200 percent of the amount of back pay and 100 percent of all lost benefits, with interest; and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees. The findings and, where appropriate, preliminary order, will also advise the parties of their right to file objections to the findings of the Assistant Secretary and to request a hearing. The findings and, where appropriate, the preliminary order, will also advise the respondent of the right to request an award of attorney fees not exceeding a total of $1,000 from the ALJ, regardless of whether the respondent has filed objections, if the respondent alleges that the complaint was frivolous or brought in bad faith. If no objections are filed within 30 days of receipt of the findings, the findings and any preliminary order of the Assistant Secretary become the final decision and order of the Secretary. If objections are timely filed, any order of preliminary reinstatement will take effect, but the remaining provisions of the order will not take effect until administrative proceedings are completed.

The remedies provided under TFA aim to make the complainant whole by restoring the complainant to the position that the complainant would have occupied absent the retaliation and to counteract the chilling effect of retaliation on protected whistleblowing in the complainant's workplace. The back pay, benefits, and other remedies appropriate in each case will depend on the individual facts of the case and the evidence submitted, and the complainant's interim earnings must be taken into account in determining the appropriate back pay award. When there is evidence to determine these figures, a back pay award under TFA might include, for example, amounts that the complainant would have earned in commissions, bonuses, overtime, or raises had the complainant not been discharged in retaliation for engaging in protected activity under TFA. A benefits award under TFA might include amounts that the employer would have contributed to a 401(k) plan, insurance plan, profit-sharing plan, or retirement plan on the complainant's behalf had the complainant not been discharged in retaliation for engaging in protected activity under TFA. Other damages, including non-pecuniary damages, such as damages for emotional distress due to the retaliation, are also available under TFA. See, e.g., Jones v. Southpeak Interactive Corp. of Del., 777 F.3d 658, 670-71 (4th Cir. 2015) (holding that emotional distress damages are available under identical remedial provision in SOX); Halliburton, Inc. v. Admin. Review Bd., 771 F.3d 254, 264-66 (5th Cir. 2014) (same). Consistent with the rules under other whistleblower statutes enforced by the Department of Labor, in ordering interest on back pay under TFA, OSHA will compute interest due by compounding daily the Internal Revenue Service interest rate for the underpayment of taxes, which under 26 U.S.C. 6621(a)(2) is the Federal short-term rate plus three percentage points, against back pay. See, e.g., 29 CFR 1980.105(a) (SOX); 29 CFR 1982.105(a) (Federal Railroad Safety Act (FRSA)); 29 CFR 1988.105(a) (Moving Ahead for Progress in the 21st Century Act (MAP-21)).

Consistent with the rules governing other Department of Labor-enforced whistleblower protection statutes, where appropriate, in ordering back pay, OSHA will require the respondent to submit the appropriate documentation to the Social Security Administration (SSA) allocating the back pay to the appropriate periods. See, e.g., 29 CFR 1980.105(a) (SOX); 29 CFR 1982.105(a) (FRSA); 29 CFR 1988.105(a) (MAP-21)).

The statute permits OSHA to preliminarily reinstate employees to their positions if OSHA finds reasonable cause to believe that they were discharged in violation of TFA. See 49 U.S.C. 42121(b)(2)(A). When a violation is found, the norm is for OSHA to order immediate preliminary reinstatement. In appropriate circumstances, in lieu of preliminary reinstatement, OSHA may order that the complainant receive the same pay and benefits that the complainant received prior to termination but not actually return to work. Such “economic reinstatement” is akin to an order of front pay and is sometimes employed in cases arising under § 105(c) of the Federal Mine Safety and Health Act of 1977, which protects miners from retaliation. 30 U.S.C. 815(c); see, e.g., Sec'y of Labor, MSHA v. North Fork Coal Corp., 33 FMSHRC 589, 2011 WL 1455831, at *4 (FMSHRC Mar. 25, 2011) (explaining economic reinstatement in lieu of temporary reinstatement in the context of § 105(c)). Front pay has been recognized as an appropriate remedy in cases under the whistleblower statutes enforced by OSHA in circumstances where reinstatement would not be appropriate. See, e.g., Deltek, Inc. v. Dep't of Labor, Admin. Rev Bd., 649 Fed. App'x. 320, 333 (4th Cir. 2016) (affirming award of front pay in SOX case due to “pronounced animosity between the parties;” explaining that “front pay `is designed to place the complainant in the identical financial position' that she would have occupied had she remained employed or been reinstated.”); Continental Airlines, Inc. v. Admin. Review Bd., 638 Fed. App'x. 283, 289-90 at *4 (5th Cir. 2016) (affirming front pay award under AIR21, and explaining that “front-pay is available when reinstatement is not possible”), aff'g Luder v. Cont'l Airlines, Inc., ARB No. 10-026, 2012 WL 376755, at *11 (ARB Jan. 31, 2012); see also Brown v. Lockheed Martin Corp., ALJ No. 2008-SOX-00049, 2010 WL 2054426, at *55-56 (ALJ Jan. 15, 2010) (noting that while reinstatement is the “presumptive remedy” under SOX whistleblower provision, front pay may be awarded as a substitute when reinstatement is inappropriate), aff'd Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1138 (10th Cir. 2013) (noting availability of all relief necessary to make the employee whole in SOX case but remanding for DOL to quantify remedies); Indiana Michigan Power Co. v. U.S. Dep't of Labor, 278 Fed. Appx. 597, 606 (6th Cir. 2008) (affirming front pay award under ERA). Neither an employer nor an employee has a statutory right to choose economic reinstatement. Rather, economic reinstatement is designed to accommodate situations in which evidence establishes to OSHA's satisfaction that immediate reinstatement is inadvisable for some reason, notwithstanding the employer's retaliatory discharge of the employee.

Objections to the findings of the Assistant Secretary must be in writing and must be filed with the Chief Administrative Law Judge, U.S. Department of Labor, in accordance with 29 CFR part 18, as applicable, within 30 days of the receipt of the findings. The date of the postmark, facsimile transmittal, or electronic transmittal is considered the date of the filing; if the objection is filed in person, by hand-delivery or other means, the objection is filed upon receipt. The filing of objections also is considered a request for a hearing before an ALJ. Although the parties are directed to serve a copy of their objections on the other parties of record, as well as on the OSHA official who issued the findings and order, the Assistant Secretary, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards, the failure to serve copies of the objections on the other parties of record does not affect the ALJ's jurisdiction to hear and decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 2005). OSHA and the Associate Solicitor for Fair Labor Standards may specify the means, including electronic means, to serve them with copies of objections to OSHA's findings.

The timely filing of objections stays all provisions of the preliminary order, except for the portion requiring reinstatement. A respondent may file a motion to stay the Assistant Secretary's preliminary order of reinstatement with the Office of Administrative Law Judges. However, such a motion will be granted only based on exceptional circumstances. The Secretary believes that a stay of the Assistant Secretary's preliminary order of reinstatement under TFA would be appropriate only where the respondent can establish the necessary criteria for equitable injunctive relief, i.e., irreparable injury, likelihood of success on the merits, a balancing of possible harms to the parties, and that the public interest favors a stay. If no timely objection to the Assistant Secretary's findings and/or preliminary order is filed, then the Assistant Secretary's findings and/or preliminary order become the final decision of the Secretary not subject to judicial review.

This section adopts the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges, as set forth in 29 CFR part 18 subpart A. This section provides that the hearing is to commence expeditiously, except upon a showing of good cause or unless otherwise agreed to by the parties. Hearings will be conducted de novo, on the record. As noted in this section, formal rules of evidence will not apply, but rules or principles designed to assure production of the most probative evidence will be applied. The ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.

The Assistant Secretary may participate as a party or amicus curiae at any time in the administrative proceedings under TFA. For example, the Assistant Secretary may exercise discretion to prosecute the case in the administrative proceeding before an ALJ; petition for review of a decision of an ALJ, including a decision based on a settlement agreement between the complainant and the respondent, regardless of whether the Assistant Secretary participated before the ALJ; or participate as amicus curiae before the ALJ or the ARB. Although OSHA anticipates that ordinarily the Assistant Secretary will not participate, the Assistant Secretary may choose to do so in appropriate cases, such as cases involving important or novel legal issues, multiple employees, alleged violations that appear egregious, or where the interests of justice might require participation by the Assistant Secretary. The IRS, if interested in a proceeding, also may participate as amicus curiae at any time in the proceedings.

This section sets forth the requirements for the content of the decisions and orders of the ALJ, and includes the standard for finding a violation under TFA. Specifically, because TFA incorporates the burdens of proof in AIR21, the complainant must demonstrate ( i.e., prove by a preponderance of the evidence) that the protected activity was a “contributing factor” in the adverse action. See 49 U.S.C. 42121(b)(2)(B)(iii); see, e.g., Allen, 514 F.3d at 475 n.1 (“The term `demonstrates' [under identical burden-shifting scheme in the SOX whistleblower provision] means to prove by a preponderance of the evidence.”). If the employee demonstrates that the alleged protected activity was a contributing factor in the adverse action, then the employer must demonstrate by “clear and convincing evidence” that it would have taken the same action in the absence of the protected activity. See 49 U.S.C. 42121(b)(2)(B)(iv).

Paragraph (c) of this section further provides that OSHA's determination to dismiss the complaint without an investigation or without a complete investigation under § 1989.104 is not subject to review. Thus, § 1989.109(c) clarifies that OSHA's determinations on whether to proceed with an investigation under TFA and whether to make particular investigative findings are discretionary decisions not subject to review by the ALJ. The ALJ hears cases de novo and, therefore, as a general matter, may not remand cases to OSHA to conduct an investigation or make further factual findings. Paragraph (d) notes the remedies that the ALJ may order under TFA and, as discussed under § 1989.105 above, provides that interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621(a)(2) and will be compounded daily, and that the respondent will be required to submit appropriate documentation to the SSA allocating any back pay award to the appropriate periods. Paragraph (e) requires that the ALJ's decision be served on all parties to the proceeding, OSHA, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards. OSHA and the Associate Solicitor for Fair Labor Standards may specify the means, including electronic means, for service of the ALJ's decision on them. Paragraph (e) also provides that any ALJ decision requiring reinstatement or lifting an order of reinstatement by the Assistant Secretary will be effective immediately upon receipt of the decision by the respondent. All other portions of the ALJ's order will be effective 30 days after the date of the decision unless a timely petition for review has been filed with the ARB. If a timely petition for review is not filed with the ARB, the decision of the ALJ becomes the final decision of the Secretary and is not subject to judicial review.

Upon the issuance of the ALJ's decision, the parties have 30 days within which to petition the ARB for review of that decision. The date of the postmark, facsimile transmittal, or electronic transmittal is considered the date of filing of the petition; if the petition is filed in person, by hand delivery, or other means, the petition is considered filed upon receipt.

The appeal provisions in this part provide that an appeal to the ARB is only accepted at the discretion of the ARB. The parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections may be deemed waived. The ARB has 30 days to decide whether to grant the petition for review. If the ARB does not grant the petition, the decision of the ALJ becomes the final decision of the Secretary. If a timely petition for review is filed with the ARB, any relief ordered by the ALJ, except for that portion ordering reinstatement, is inoperative while the matter is pending before the ARB. When the ARB accepts a petition for review, the ALJ's factual determinations will be reviewed under the substantial evidence standard.

This section also provides that, based on exceptional circumstances, the ARB may grant a motion to stay an ALJ's preliminary order of reinstatement under TFA (which otherwise would be effective immediately), while the ARB reviews the order. The Secretary believes that a stay of an ALJ's preliminary order of reinstatement under TFA would be appropriate only where the respondent can establish the necessary criteria for equitable injunctive relief, i.e., irreparable injury, likelihood of success on the merits, a balancing of possible harms to the parties, and that the public interest favors a stay.

If the ARB concludes that the respondent has violated the law, it will issue an order providing all relief necessary to make the complainant whole. The order will require, where appropriate: Reinstatement with the same seniority status that the complainant would have had, but for the retaliation; the sum of 200 percent of the amount of back pay and 100 percent of all lost benefits, with interest; and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes pursuant to 26 U.S.C. 6621(a)(2) and will be compounded daily, and the respondent will be required to submit appropriate documentation to the SSA allocating any back pay award to the appropriate periods. If the ARB determines that the respondent has not violated the law, an order will be issued denying the complaint. If, upon the request of the respondent, the ARB determines that a complaint was frivolous or was brought in bad faith, the ARB may award to the respondent a reasonable attorney fee, not exceeding a total of $1,000. The decision of the ARB is subject to discretionary review by the Secretary of Labor. See Secretary of Labor's Order, 01-2020 (Feb. 21, 2020), 85 FR 13024-01 (Mar. 6, 2020).

As provided in that Secretary's Order, a party may petition the ARB to refer a decision to the Secretary for further review, after which the Secretary may accept review, decline review, or take no action. If no such petition is filed, the ARB's decision shall become the final action of the Department 28 calendar days after the date on which the decision was issued. If such a petition is filed and the ARB declines to refer the case to the Secretary, the ARB's decision shall become final 28 calendar days after the date on which the petition for review was filed. If the ARB refers a decision to the Secretary for further review, and the Secretary takes no action in response to the ARB's referral, or declines to accept the case for review, the ARB's decision shall become final either 28 calendar days from the date of the referral, or on the date on which the Secretary declines review, whichever comes first.

In the alternative, under the Secretary's Order, at any point during the first 28 calendar days after the date on which an ARB decision was issued, the Secretary may direct the ARB to refer the decision to the Secretary for review. If the Secretary directs the ARB to refer a case to the Secretary, or notifies the parties that the case has been accepted for review, the ARB's decision shall not become the final action of the Department and shall have no legal force or effect, unless and until the Secretary adopts the ARB's decision.

Under the Secretary's Order, any final decision made by the Secretary shall be made solely based on the administrative record, the petition and briefs filed with the ARB, and any amicus briefs permitted by the Secretary. The decision shall be in writing and shall be transmitted to the ARB, who will publish the decision and transmit it to the parties to the case. The Secretary's decision shall constitute final action by the Department and shall serve as binding precedent in all Department proceedings involving the same issue or issues.

This section provides the procedures and time periods for withdrawal of complaints, withdrawal of findings and/or preliminary orders by the Assistant Secretary, and withdrawal of objections to findings and/or orders. It permits complainants to withdraw their complaints orally, and provides that, in such circumstances, OSHA will confirm a complainant's desire to withdraw in writing. It also provides for approval of settlements at the investigative and adjudicatory stages of the case.

This section describes the statutory provisions for judicial review of decisions of the Secretary and requires, in cases where judicial review is sought, the ARB or the ALJ to submit the record of proceedings to the appropriate court pursuant to the rules of such court.

This section describes the ability of the Secretary, the complainant, and the respondent under TFA to obtain judicial enforcement of orders and terms of settlement agreements. Through the incorporation of the rules and procedures in AIR21, TFA authorizes district courts to enforce orders issued by the Secretary under the provisions of 49 U.S.C. 42121(b). Specifically, 49 U.S.C. 42121(b)(5) provides that “[w]henever any person has failed to comply with an order issued under paragraph (3), the Secretary of Labor may file a civil action in the United States district court for the district in which the violation was found to occur to enforce such order. In actions brought under this paragraph, the district courts shall have jurisdiction to grant all appropriate relief, including injunctive relief and compensatory damages.” 49 U.S.C. 42121(b)(5). Similarly, 49 U.S.C. 42121(b)(6), provides that a person on whose behalf an order was issued “may commence a civil action against the person to whom such order was issued to required compliance with such order” in the appropriate United States district court, which will have jurisdiction without regard to the amount in controversy or the citizenship of the parties, to enforce such order. The Secretary views these provisions as permitting district courts to enforce both final orders of the Secretary and preliminary orders of reinstatement for the same reasons that the Secretary has expressed with regard to SOX, which incorporates the rules and procedures of AIR21 using identical language to that in TFA. See Procedures for the Handling of Retaliation Complaints Under § 806 of the Sarbanes-Oxley Act of 2002, as Amended, Final Rule, 80 FR 11865-02, 11,877 (Mar. 5, 2015) (discussing district court enforcement of preliminary reinstatement orders under SOX); see also Brief for the Intervenor/Plaintiff-Appellee Secretary of Labor, Solis v. Tenn. Commerce Bancorp, Inc., No. 10-5602 (6th Cir. 2010); Solis v. Tenn. Commerce Bancorp, Inc., 713 F. Supp. 2d 701 (M.D. Tenn. 2010); but see Bechtel v. Competitive Techs., Inc., 448 F.3d 469 (2d Cir. 2006); Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552 (W.D. Va. 2006), decision vacated, appeal dismissed, No. 06-2295 (4th Cir. Feb. 20, 2008)).

This section sets forth TFA's provisions allowing a complainant to bring an original de novo action in district court, alleging the same allegations contained in the complaint filed with OSHA, if there has been no final decision of the Secretary within 180 days after the date of the filing of the complaint. See 26 U.S.C. 7623(d)(2)(A)(ii). This section also incorporates the statutory provisions that allow for a jury trial at the request of either party in a district court action and that specify the burdens of proof in a district court action. 26 U.S.C. 7623(d)(2)(B)(iii), (v).

This section also requires that, within seven days after filing a complaint in district court, a complainant must provide a file-stamped copy of the complaint to OSHA, the ALJ, or the ARB, depending on where the proceeding is pending. If the ARB has issued a decision that has not yet become final under Secretary of Labor's Order 01-2020, the case is regarded as pending before the ARB for purposes of this section and a copy of any district court complaint should be sent to the ARB. A copy of the district court complaint also must be provided to the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards. This provision is necessary to notify the agency that the complainant has opted to file a complaint in district court. This provision is not a substitute for the complainant's compliance with the requirements for service of process of the district court complaint contained in the Federal Rules of Civil Procedure and the local rules of the district court where the complaint is filed.

Finally, it should be noted that although a complainant may file an action in district court if the Secretary has not issued a final decision within 180 days of the filing of the complaint with OSHA, it is the Department of Labor's position that complainants may not initiate an action in federal court after the Secretary issues a final decision, even if the date of the final decision is more than 180 days after the filing of the complaint. Thus, for example, after the ARB has issued a decision that has become final denying a whistleblower complaint, the complainant no longer may file an action for de novo review in federal district court. See Soo Line R.R., Inc. v. Admin. Review Bd., 990 F.3d 596, 598 n.1 (8th Cir. 2021). The purpose of the “kick-out” provision is to aid the complainant in receiving a prompt decision. That goal is not implicated in a situation where the complainant already has received a final decision from the Secretary. In addition, permitting the complainant to file a new case in district court in such circumstances could conflict with the parties' rights to seek judicial review of the Secretary's final decision in the court of appeals. See 49 U.S.C. 42121(b)(4)(B) (providing that an order with respect to which review could have been obtained in the court of appeals shall not be subject to judicial review in any criminal or other civil proceeding).

This section provides that, in circumstances not contemplated by these rules or for good cause, the ALJ or the ARB may, upon application and notice to the parties, waive any rule as justice or the administration of TFA requires.

This rule contains a reporting provision (filing a retaliation complaint, section 1989.103) which was previously reviewed as a statutory requirement of TFA and approved for use by the Office of Management and Budget (OMB), as part of the Information Collection Request (ICR) assigned OMB control number 1218-0236 under the provisions of the Paperwork Reduction Act of 1995 (PRA). See Public Law 104-13, 109 Stat. 163 (1995). A non-material change has been submitted to OMB to include the regulatory citation.

The notice and comment rulemaking procedures of § 553 of the Administrative Procedure Act (APA) do not apply “to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A). This is a rule of agency procedure, practice, and interpretation within the meaning of that section, because it provides the procedures for the handling of retaliation complaints. Therefore, publication in the Federal Register of a notice of proposed rulemaking and request for comments are not required for this rule. Although this is a procedural and interpretative rule not subject to the notice and comment procedures of the APA, OSHA is providing persons interested in this interim final rule 60 days to submit comments. A final rule will be published after OSHA receives and reviews the public's comments.

Furthermore, because this rule is procedural and interpretative rather than substantive, the normal requirement of 5 U.S.C. 553(d) that a rule be effective 30 days after publication in the Federal Register is inapplicable. OSHA also finds good cause to provide an immediate effective date for this interim final rule. It is in the public interest that the rule be effective immediately so that parties may know what procedures are applicable to pending cases.

The Office of Information and Regulatory Affairs has concluded that this rule is not a “significant regulatory action” within the meaning of Executive Order 12866, reaffirmed by Executive Order 13563, because it is not likely to: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866. Therefore, no economic impact analysis under § 6(a)(3)(C) of Executive Order 12866 has been prepared.

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

Also, because this rule is not significant under Executive Order 12866, and because no notice of proposed rulemaking has been published, no statement is required under § 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532. In any event, this rulemaking is procedural and interpretative in nature and is thus not expected to have a significant economic impact. Finally, this rule does not have “federalism implications.” The rule does 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[,]” and therefore, is not subject to Executive Order 13132 (Federalism).

The notice and comment rulemaking procedures of § 553 of the APA do not apply “to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A). Rules that are exempt from APA notice and comment requirements are also exempt from the Regulatory Flexibility Act (RFA). See Small Business Administration Office of Advocacy, A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act, at 9; also found at https://www.sba.gov/advocacy/guide-government-agencies-how-comply-regulatory-flexibility-act. This is a rule of agency procedure, practice, and interpretation within the meaning of 5 U.S.C. 553; and, therefore, the rule is exempt from both the notice and comment rulemaking procedures of the APA and the requirements under the RFA.

This document was prepared under the direction and control of Douglas L. Parker, Assistant Secretary of Labor for Occupational Safety and Health.

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this special local regulation by March 19, 2022. Therefore, it is impracticable to publish an NPRM because we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule. This regulation is necessary to ensure the safety of life on the navigable waters of Lake Havasu during the marine event.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to public interest because action is needed to ensure the safety of life on the navigable waters of Lake Havasu during the marine event on March 19, 2022.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041 (previously 33 U.S.C. 1236). The Captain of the Port Sector San Diego (COTP) has determined that the large number of swimmers associated with the Lake Havasu Triathlon marine event on March 19, 2022, poses a potential safety concern in the regulated area. This rule is needed to protect persons, vessels, and the marine environment in the navigable waters of Lake Havasu during the marine event.

This rule establishes a special local regulation from 8 a.m. to 9 a.m. on March 19, 2022. This special local regulation will cover all navigable waters, from surface to bottom, on a pre-determined course within Lake Havasu, Arizona beginning at the starting point of the event at Lake Havasu State Park South Beach and proceeding south to the southern entrance to the Bridgewater Channel. The duration of the temporary special local regulation is intended to ensure the safety of participants, vessels, and the marine environment in these navigable waters during the scheduled marine event. No vessel or person will be permitted to enter the regulated area without obtaining permission from the COTP or a designated representative. The regulatory text provides information on how to contact the COTP or a designated representative for permission to transit the area. When in the regulated area, persons must comply with all lawful orders or directions given to them by the COTP or designated representative. Additionally, the COTP will provide notice of the regulated area through advanced notice via Local Notice to Mariners or by on-scene designated representatives.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the regulated area. The affected portion of the navigable waterway in Lake Havasu will be of very limited duration, and is necessary for safety of life of participants in the marine event. Moreover, the Coast Guard will issue a Local Notice to Mariners about the regulated area.

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

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

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

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

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

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

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a temporary special local regulation that will limit access to certain areas within Lake Havasu, from 8 a.m. until 9 a.m. on March 19, 2022. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

The Coast Guard will enforce a segment of the Safety Zone, Brandon Road Lock and Dam to Lake Michigan including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, Calumet-Saganashkee Channel, Chicago, IL, listed in 33 CFR 165.930 on all waters of the Chicago River (Main Branch) between the N Columbus Drive Bridge and the Franklin-Orleans Street Bridge for the Chicago St. Patrick's Day Parade Dyeing of the River. This safety zone will be enforced from 9:30 a.m. through 11:30 a.m. on March 12, 2022.

Pursuant to 33 CFR 165.930, all vessels must obtain permission from the Captain of the Port Lake Michigan, or his or her designated on-scene representative to enter, move within, or exit this safety zone during the enforcement times listed in this notice of enforcement. The designation of the Captain of the Port Lake Michigan's on-scene representative need not be in writing. Requests must be made in advance and approved by the Captain of the Port or a designated on-scene representative before transits will be authorized. Approvals will be granted on a case-by-case basis. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port Lake Michigan or a designated on-scene representative.

This notice of enforcement is issued under the authority of 33 CFR 165.930, Safety Zone, Brandon Road Lock and Dam to Lake Michigan including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, Calumet-Saganashkee Channel, Chicago, IL, and 5 U.S.C. 552(a). In addition to this notification of enforcement in the Federal Register , the Coast Guard will provide the maritime community with notification of this enforcement period via Broadcast Notice to Mariners. The Captain of the Port Lake Michigan or a designated on-scene representative may be contacted via VHF-FM Channel 16 or (414) 747-7182.

The Great Lakes St. Lawrence Seaway Development Corporation (GLS) and the St. Lawrence Seaway Management Corporation (SLSMC) of Canada, under international agreement, jointly publish and presently administer the St. Lawrence Seaway Regulations and Rules (Practices and Procedures in Canada) in their respective jurisdictions. Under agreement with the SLSMC, the GLS is amending the joint regulations by updating the Regulations and Rules in various categories. The changes update the following sections of the Regulations and Rules: Condition of Vessels; Seaway Navigation; and, Dangerous Cargo. These changes are to clarify existing requirements in the regulations.

Regulatory Notices: Privacy Act: Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://www.Regulations.gov.

The joint regulations will become effective in Canada on March 21, 2022. For consistency, because these are joint regulations under international agreement, and to avoid confusion among users of the Seaway, the GLS finds that there is good cause to make the U.S. version of the amendments effective on the same date.

This regulation involves a foreign affairs function of the United States and therefore, Executive Order 12866 does not apply and evaluation under the Department of Transportation's Regulatory Policies and Procedures is not required.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities. The St. Lawrence Seaway Regulations and Rules primarily relate to commercial users of the Seaway, the vast majority of whom are foreign vessel operators. Therefore, any resulting costs will be borne mostly by foreign vessels.

This regulation does not require an environmental impact statement under the National Environmental Policy Act (49 U.S.C. 4321, et seq. ) because it is not a major federal action significantly affecting the quality of the human environment.

The Corporation has analyzed this rule under the principles and criteria in Executive Order 13132, dated August 4, 1999, and has determined that this proposal does not have sufficient federalism implications to warrant a Federalism Assessment.

The Corporation has analyzed this rule under Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48) and determined that it does not impose unfunded mandates on State, local, and tribal governments and the private sector requiring a written statement of economic and regulatory alternatives.

This regulation has been analyzed under the Paperwork Reduction Act of 1995 and does not contain new or modified information collection requirements subject to the Office of Management and Budget review.

Accordingly, the Great Lakes St. Lawrence Seaway Development Corporation amends 33 CFR part 401 as follows:

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

On October 15, 2021 (86 FR 57388), the EPA published a Notice of Proposed Rulemaking (NPRM) for the State of New Mexico, for the approval of the State's 2017 base year emission inventories and emissions statement requirements for the Sunland Park Sunland Park marginal ozone nonattainment area for the 2015 ozone NAAQS. The background for this action and rational for EPA's proposed action are explained in the NPRM and will not be restated here. One anonymous comment was received during the public comment period which ended on November 15, 2021.

Comment: The commenter believes that New Mexico is doing its best in implementing regulations promulgated by the EPA under the CAA. The commenter inquired about EPA's procedure for enforcing the CAA regulations, and expressed concern that the clean air policy would fail without the collective actions of other states.

Response: We appreciate the commenter's perspective that New Mexico is doing its best in implementing CAA regulations promulgated by the EPA. However, the issues raised by the commenter are outside the scope of this action. This action is limited to the approval of the Emissions Inventory and Emissions Statement requirements for the 2015 8-hour ozone NAAQS submitted by the state of New Mexico, for the Sunland Parkozone nonattainment area, New Mexico, under the CAA.

The CAA establishes a comprehensive program for controlling and improving the nation's air quality through state and federal regulation. This comprehensive program is based on cooperative federalism that divides responsibilities between the EPA and the states. Under the CAA, the EPA establishes the national air quality standards, and the states are primarily responsible for implementing those standards, with oversight from EPA.

Upon the promulgation or revision of a NAAQS by the EPA, each state is required to submit a state implementation plan (SIP). The SIP provides the “implementation, maintenance, and enforcement” of the NAAQS, and must “contain adequate provisions” prohibiting air emissions in amounts that contribute significantly to nonattainment or that interfere with the maintenance of the NAAQS in neighboring states. 42 U.S.C. 7410(a)(2)(D)(i)(I). Where a state fails to submit all or a portion of a SIP as required by the CAA, or where the EPA disapproves a SIP as not meeting the CAA requirements, the EPA will assert federal oversight authority and develop a federal implementation plan (FIP) for the state. It may also develop a FIP for tribal lands if a tribe elects not to develop their own implementation plan, as appropriate.

The applicable state and the EPA both have authority to bring enforcement actions for violations of federally-approved SIPs. Members of the public can also file citizen suits under the CAA to address violations of SIPs. For more details on Air Quality Implementation Plans please visit https://www.epa.gov/air-quality-implementation-plans.

EPA is approving the New Mexico SIP revisions submitted on September 10, 2020 to address the emissions inventory and emissions statement requirements for the Sunland Park area for the 2015 ozone NAAQS. The emissions inventory we are approving is listed in Table 1 of the NPRM. We are approving the emissions inventory because it contains a comprehensive, accurate, and current inventory of actual emissions for all relevant sources in accordance with CAA sections 172(c)(3) and 182(a)(1) requirements. We are also approving the New Mexico emission statement because it includes the approved provision addressing the emission statement requirement in CAA section 182(a)(3)(B). New Mexico adopted the emission inventories consistent with the requirement for reasonable public notice and opportunity for a public hearing.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve 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 proposed 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 Start Printed Page 11875 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 May 6, 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, the EPA amends 40 CFR part 52 as follows:

Section 9004 of the Resource Conservation and Recovery Act, as amended, (RCRA), 42 U.S.C. 6991c, authorizes the EPA to approve a State Underground Storage Tank (UST) Program to operate in the State in lieu of the Federal UST program, subject to the authority retained by EPA in accordance with RCRA. Program approval may be granted by EPA pursuant to RCRA Section 9004(b), if EPA finds that the State program: (1) Is “no less stringent” than the Federal program for the seven elements set forth at RCRA Section 9004(a)(1) through (7); (2) includes the notification requirements of RCRA Section 9004(a)(8); and (3) provides for adequate enforcement of compliance with UST standards of RCRA Section 9004(a). Note that RCRA Sections 9005 (on information-gathering) and 9006 (on Federal enforcement) by their terms apply even in states with programs approved by EPA under RCRA Section 9004. Thus, EPA retains its authority under RCRA Sections 9005 and 9006, 42 U.S.C. 6991d and 6991e, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions in approved states. With respect to such an enforcement action, EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than the approved state analogues to these provisions.

On October 8, 2018, in accordance with 40 CFR 281.51(a), Hawaii submitted a complete program revision application seeking approval for its UST program revisions corresponding to the EPA final rule published on July 15, 2015 (80 FR 41566), which finalized revisions to the 1988 UST regulations and to the 1988 state program approval regulations. As required by 40 CFR 281.20, the State submitted the following: A transmittal letter from the Governor requesting approval, a description of the program and operating procedures, a demonstration of the State's procedures to ensure adequate enforcement, a Memorandum of Agreement outlining the roles and responsibilities of EPA and the implementing agency, a statement of certification from the Attorney General, and copies of all relevant State statutes and regulations. EPA reviewed the Hawaii application for updated UST Program approval and, on August 14, 2020 (85 FR 49611), issued a tentative determination that the revisions to Hawaii's UST program are equivalent to, consistent with, and no less stringent than the corresponding Federal requirements in subpart C of 40 CFR part 281, and that the Hawaii program provides for adequate enforcement of compliance (40 CFR 281.11(b)). EPA received public comment on its tentative determination and, as a result, has made one correction to the scope of the approval as proposed, which is described in Section I.C. of this document, below. Therefore, EPA grants Hawaii approval to operate its UST program with the changes described in the program revision application as outlined in EPA's August 14, 2020 tentative determination and amended by this notification. Specifically, as noted below, EPA finds that Hawaii Administrative Rules (HAR) Section 11-280.1-67 is equivalent to and part of the approved Hawaii UST program, but HAR Section 11-280.1-65.1 is broader in scope than the Federal UST program and is not a part of the approved Hawaii UST program.

EPA received one significant public comment on its proposed approval of the updated Hawaii UST program within the public comment period.

Comment: In the “Authorization of Underground Storage Tank Program Revisions: Hawaii” under H. “Where are the State's revised rules different from the Federal rules,” the text reads: “[Hawaii Administrative Rules (HAR)] Section 11-280.1-67 requires public notification in the event of a confirmed release. This requirement is broader in scope than the Federal UST program, which only requires public notification when an implementing agency requires a corrective action plan.” This is not correct. HAR Section 11-280.1-67 is titled “Public participation for corrective action plans” and does NOT require public notification in the event of a confirmed release, but instead only when a corrective action plan is required. This is in line with EPA's rules.

Response: EPA agrees with this comment. HAR Section 11-280.1-67 does not require public notification in the event of a confirmed release but does require public participation when a corrective action plan is required. This aspect of Hawaii's program is not broader in scope than the Federal program and is in alignment with EPA's rules. However, in its August 2020 proposal, EPA cited HAR Section 11-280.1-67 incorrectly and should have cited HAR Section 11-280.1-65.1 instead. HAR Section 11-280.1-65.1 requires notification of members of the public directly affected by a confirmed release. See also Hawaii revised statute 342L-35(4). There is no counterpart in the Federal regulations for HAR Section 11-280.1-65.1. As a result, this final approval includes HAR Section 11-280.1-67, which has a counterpart at 40 CFR 280.67. However, this final approval does not include HAR Section 11-280.1-65.1, which EPA finds is broader in scope than the Federal program.

Additionally, EPA received a set of comments outside of the public comment period. This set of comments was submitted by email to the Underground Storage Tanks Program at EPA Region 9 shortly after the comment period closed. The full text of this set of comments is included as a part of this docket to ensure the public has access to this set of comments as part of the record for this decision. The comments, which are focused on the State's and EPA's underlying requirements for field-constructed tanks, do not implicate EPA's decision whether to approve Hawaii's revised UST Program. UST State Program Approval is intended for states to obtain the authority to operate their programs in lieu of the Federal program and is not an opportunity to re-open comment on either the underlying Federal or state rules. The public comment period for the 2015 Federal UST regulations closed on April 16, 2012, and the public comment period for the Hawaii UST regulations closed on June 5, 2018.

Codification is the process of placing citations and references to the state's statutes and regulations that comprise the state's approved UST program into the Code of Federal Regulations. EPA does this by adding those citations and references to the approved state rules in 40 CFR part 282. EPA is not codifying the approval of Hawaii's changes at this time. However, EPA intends to amend 40 CFR part 282, subpart B, to reflect the updated approval of Hawaii's program changes at a later date.

This action only applies to Hawaii's UST Program requirements pursuant to RCRA Section 9004 and imposes no requirements other than those imposed by state law. It complies with applicable EOs and statutory provisions as follows:

The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). This action approves state requirements for the purpose of RCRA Section 9004 and imposes no additional requirements beyond those imposed by state law. Therefore, this action is not subject to review by OMB.

This action is not an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory action because actions such as this approval of Hawaii's revised underground storage tank program under RCRA are exempted under Executive Order 12866. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

Because this action approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538). For the same reason, and because there are no federally recognized Tribes within the State, this action also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

This action will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves state requirements as part of the State RCRA Underground Storage Tank Program without altering the relationship or the distribution of power and responsibilities established by RCRA.

This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant, and it does not make decisions based on environmental health or safety risks.

This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a “significant regulatory action” as defined under Executive Order 12866.

Under RCRA Section 9004(b), EPA grants a state's application for approval as long as the state meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a state approval application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

As required by Section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in taking this action, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.

EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the action in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive order.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). “Burden” is defined at 5 CFR 1320.3(b).

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Because this action approves pre-existing state rules which are at least equivalent to, consistent with, and no less stringent than existing Federal requirements, and imposes no additional requirements beyond those imposed by state law, and there is no anticipated significant adverse human health or environmental effects, the action is not subject to Executive Order 12898.

The Congressional Review Act, 5 U.S.C. 801-808, 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. This action is not considered a “rule” within the meaning of 5 U.S.C. 804, since it does not substantially affect the rights or obligations of non-agency parties. However, this action will be effective at 1:00 p.m. HST March 7, 2022, because it is a final approval.

FMCSA organizes this final rule as follows:

To view any documents mentioned as being available in the docket, go to https://www.regulations.gov/docket/FMCSA-2021-0037/document and choose the document to review. To view comments, click this final rule, then click “Browse Comments.” If you do not have access to the internet, you may view the docket online by visiting Dockets Operations at U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.

Section 393.60(e)(1)(i) of the FMCSRs prohibits obstruction of the driver's field of view by devices mounted at the top of the windshield. Antennas and similar devices must not be mounted more than 152 mm (6 inches) below the upper edge of the windshield and must be outside the driver's sight lines to the road and highway signs and signals.

Section 393.60(e)(1)(i) does not apply to vehicle safety technologies, as defined in § 393.5, that include “a fleet-related incident management system, performance or behavior management system, speed management system, forward collision warning or mitigation system, active cruise control system, and transponder.” Section 393.60(e)(1)(ii) requires devices with vehicle safety technologies to be mounted (1) not more than 100 mm (4 inches) below the upper edge of the area swept by the windshield wipers, or (2) not more than 175 mm (7 inches) above the lower edge of the area swept by the windshield wipers, and (3) outside the driver's sight lines to the road and highway signs and signals.

The Agency modifies § 393.60(e)(1)(ii) to increase from 100 mm (4 inches) to 216 mm (8.5 inches) the distance below the upper edge of the area swept by the windshield wipers within which vehicle safety technologies may be mounted. The Agency also amends § 393.5 by revising the definition of vehicle safety technology to add technologies that had been granted temporary exemptions from § 393.60(e). The amendments do not impose new or more stringent requirements, but simply codify the temporary exemptions granted pursuant to 49 CFR part 381 that allow the use of the devices/technologies in locations that would previously have been a violation of § 393.60(e)(1). More importantly, the amendments do not mandate the use of any devices/technologies, but simply permit their voluntary use while mounted in a location that maximizes their effectiveness without impairing operational safety.

The Agency expects that the final rule will generate cost savings for both industry and the Federal Government by reducing the overall time burden associated with the exemption request and approval process associated with 49 U.S.C. 31315(b) and the implementing regulations under 49 CFR part 381. The Agency estimates this final rule will result in total annualized cost savings of $10,903 at 3 percent and 7 percent discount rates, respectively.

This final rule is based on the authority of the Motor Carrier Act, 1935 (1935 Act), the Motor Carrier Safety Act of 1984 (1984 Act), and the Fixing America's Surface Transportation (FAST) Act.

The 1935 Act, as amended, provides that “[t]he Secretary of Transportation may prescribe requirements for—(1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and (2) qualifications and maximum hours-of-service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation.” (49 U.S.C. 31502(b)).

The 1984 Act provides concurrent authority to regulate drivers, motor carriers, and vehicle equipment. It requires the Secretary to “prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles. At a minimum, the regulations shall ensure that—(1) commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate vehicles safely . . . ; (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators; and (5) an operator of a commercial motor vehicle is not coerced by a motor carrier, shipper, receiver, or transportation intermediary to operate a commercial motor vehicle in violation of a regulation promulgated under this section, or chapter 51 or chapter 313 of this title.” (49 U.S.C. 31136(a)).

Section 5301 of the FAST Act directs FMCSA to exempt voluntary mounting of a vehicle safety technology on a windshield if that technology is likely to achieve a level of safety that is equivalent to or greater than the level of safety that would be achieved without the exemption (Pub. L. 114-94, 129 Stat. 1312, 1543, Dec. 4, 2015). Section 5301(c) also specifies that any regulatory exemption for windshield-mounted technologies in effect on the date of enactment of the FAST Act “shall be considered likely to achieve a level of safety that is equivalent to or greater than the level of safety that would be achieved absent an exemption. . . .”

This final rule is based in part on the 1935 Act, which allows the Agency to regulate the “safety of operation and equipment” of a motor carrier and the “standards of equipment” of a motor private carrier. The requirements of 49 U.S.C. 31136(a)(1), (2), and (4) of the 1984 Act are also applicable to this rulemaking action. The Agency amends 49 CFR part 393 to allow certain safety equipment to be mounted within the area of the windshield swept by the windshield wipers. The Agency believes that these changes will be welcomed by motor carriers and drivers alike and that coercion to violate these revised provisions, which is prohibited by § 31136(a)(5), will not be an issue. The final rule does not involve the physical condition of drivers under § 31136(a)(3).

This final rule rests in part on the intent of Congress expressed in section 5301 of the FAST Act to exempt safety equipment mounted within the swept area of windshields, provided such devices do not degrade operational safety.

FMCSA must consider the “costs and benefits” of any proposal before promulgating regulations (49 U.S.C. 31136(c)(2)(A), 31502(d)).

On July 6, 2021, FMCSA published in the Federal Register a Notice of Proposed Rulemaking (NPRM) (Docket No. FMCSA-2021-0037, 86 FR 35449) titled “Parts and Accessories Necessary for Safe Operation; Authorized Windshield Area for the Installation of Vehicle Safety Technology.” The NPRM proposed to modify 49 CFR 393.60(e) to allow certain vehicle safety technologies to be mounted on the interior of the windshield of a CMV, within a defined portion of the swept area of the windshield. The NPRM also proposed to modify the definition of vehicle safety technology in 49 CFR 393.5 to add technologies that had been granted temporary exemptions from § 393.60(e) since the 2016 final rule.

The comment period closed on August 5, 2021. The following 17 parties submitted comments: American Trucking Associations (ATA); Car Couriers Inc.; Daimler Trucks North America LLC (DTNA); EROAD; Fastfreight Express; Lidar Coalition; Lytx, Inc.; Motor & Equipment Manufacturers Association (MEMA); Netradyne, Inc.; Omnitracs, LLC and SmartDrive Systems; Owner-Operator Independent Drivers Association (OOIDA); Samsara Inc.; Truck and Engine Manufacturers Association (EMA); United Motorcoach Association (UMA); ZF North America; and two private citizens.

To assist in development of the proposed regulatory revisions, the Agency requested responses to two specific questions.

Question 1: Does the definition of vehicle safety technology need to be expanded further to address other potential technologies and/or multifunction devices such as electronic logging devices that incorporate technologies such as Global Positioning Systems (GPS) that either require placement in the approximate middle of the CMV windshield or would benefit driver safety by not diverting the CMV driver's eyes from the road and would be subject to the positioning requirements of § 393.60(e)(1)?

Responses: Most commenters supported the proposed definition of vehicle safety technology from the NPRM. Some commenters added that the proposed definition does not need to be expanded further and should be finalized as written.

Some commenters stated that the proposed definition of vehicle safety technology provides adequate flexibility by not restricting the definition to the listed safety technology examples. DTNA requested FMCSA clarify that the list of technologies in the definition is not exclusive. DTNA stated that this clarification could be made by revising the definition of vehicle safety technology to read, in part, “Examples of vehicle safety technology systems and devices include, but are not limited to . . .” and “Vehicle safety technology includes but is not limited to. . . .” DTNA stated that this change to the definition would clarify that the list is not all-encompassing, allow for multi-function devices, and prevent the need for exemption requests in the future for emerging technologies, while still ensuring that the covered technologies would be limited to those that have an impact on and promote vehicle safety.

Lidar Coalition proposed revising the first sentence of the definition of vehicle safety technology to read as follows:

ATA agreed with the proposed definition and stated that FMCSA should continue to update the definition of vehicle safety technology in the future after evaluating new devices with sound data demonstrating safety performance at and above the current standard.

Some commenters expressed general support for adding GPS and Electronic Logging Device (ELD) systems to the definition of vehicle safety technology, stating that these devices enhance safety. A few commenters supported the addition of GPS devices to the definition of vehicle safety technology so those devices can be positioned closer to the driver's line of sight and the drivers do not need to look away from the road to view them. Some commenters stated that ELDs do not need to be mounted on windshields for the operation of the device and that such placement would cause an unnecessary distraction. A few commenters stated that GPS and ELD systems may be integrated with other devices listed in the definition of vehicle safety technology that could be placed on the windshield and therefore needed to be included in the definition.

The Lidar Coalition supported inclusion of lidar in the proposed definition, stating that such systems will provide multiple safety benefits when mounted on the interior of windshields.

MEMA stated that the windshield space should be prioritized for safety systems that require a clear and clean windshield to operate, such as a forward-looking camera, and not systems that can function from other positions, such as a GPS unit.

OOIDA expressed concern that the proposed definition of vehicle safety technology includes some technologies that are proven to increase the likelihood of crashes or need more research to determine their effect on vehicle safety, such as speed management systems, automatic emergency braking (AEB) systems, and equipment being deployed on autonomous vehicles. OOIDA stated that FMCSA should not mandate use of these technologies.

UMA commented that some States may have adopted laws that would conflict with the proposed definition of vehicle safety technology and provided an example of a California law that would be in conflict with the proposed definition. The California law cited by UMA states that a GPS device “may be mounted in a seven-inch square in the lower corner of the windshield farthest removed from the driver or in a five-inch square in the lower corner of the windshield nearest to the driver” and a video event recorder “may be mounted in a seven-inch square in the lower corner of the windshield farthest removed from the driver, in a five-inch square in the lower corner of the windshield nearest to the driver and outside of an airbag deployment zone, or in a five-inch square mounted to the center uppermost portion of the interior of the windshield.” UMA requested that FMCSA ensure regulations integrate with such State laws or address the preemptive intention of the final rule.

FMCSA response: This final rule adopts the changes proposed in the NPRM. It is consistent with the following previously issued Agency actions permitting the placement of vehicle safety technology devices on CMVs outside the driver's sight lines to the road, and highway signs and signals: Bendix Commercial Vehicle Systems, LLC 86 FR 17877 (Apr. 6, 2021), Netradyne, Inc. 85 FR 82575 (Dec 18, 2020), J.J. Keller & Associates, Inc. 85 FR 75106 (Nov. 24, 2020), Samsara Networks, Inc. 85 FR 68409 (Oct. 28, 2020), Nauto Inc. 85 FR 64220 (Oct. 9, 2020), Lytx Inc. 85 FR 30121 (May 21, 2020), Navistar Inc. 84 FR 64952 (Nov. 25, 2019), SmartDrive System, Inc. 84 FR 15284 (Apr. 15, 2019), Daimler Trucks North America LLC 83 FR 4543 (Jan. 31, 2018), and Hino Motors Manufacturing U.S.A. 82 FR 36182 (Aug. 3, 2017). All of the temporary exemptions were granted for devices that meet the definition of vehicle safety technologies except for the GPS device identified in the Traditional Trucking Corp. exemption (83 FR 42552, Aug. 22, 2018). The Agency also acknowledges that many devices such as ELDs may include GPS technology. Under the final rule, any device that incorporates GPS is included in the definition of vehicle safety technology.

When issuing the previous exemptions, the Agency asked interested parties to provide FMCSA with any information demonstrating that motor carriers operating CMVs equipped with vehicle safety technologies are not achieving the requisite statutory level of safety. FMCSA has not received any information to that effect.

As noted in the NPRM, the proposed amendment would not require the use of any devices or technologies but would simply permit their voluntary use when mounted in a location that maximizes their effectiveness without impairing operational safety. FMCSA is unaware of any evidence showing that installation of other vehicle safety technologies mounted on the interior of the windshield has resulted in any degradation in safety.

Regarding OOIDA's concern about speed management and AEB systems, FMCSA sees no reason to remove “speed management systems” from the definition of vehicle safety technology. The definition has included “speed management systems” since it was originally added to 49 CFR 393.5 (81 FR 65568, Sep. 23, 2016). In the absence of data to support OOIDA's claims that these technologies are proven to increase the likelihood of crashes or need more research to determine their effect on vehicle safety, FMCSA sees no reason to revisit those technologies inclusion in the definition. As to AEB, FMCSA notes that section 393.5 continues to include “forward collision warning or mitigation system” as one example of vehicle safety technology excepted from the windshield obstruction prohibition in section 393.60(e). While AEB was included in the definition proposed in the petition for rulemaking, section 23010 of the Infrastructure Investment and Jobs Act (Pub. L. 117-56, Nov. 15, 2021) requires the National Highway Traffic Safety Administration (NHTSA) to complete a rulemaking on AEB and FMCSA to complete a companion rulemaking. AEB technology ultimately might or might not require placement within the swept area of the windshield wipers. Under the circumstances, the Agency has decided that it would be premature to address AEB in this final rule. Additionally, the NPRM did not propose, and this final rule does not require, installation of these technologies.

States that accept Motor Carrier Safety Assistance Program (MCSAP) funds from FMCSA must adopt laws or regulations compatible with the rules in 49 CFR parts 390-397 within 3 years of the effective date of a new rule (49 CFR 350.335(a)(2)) or risk the loss of such funds. That MCSAP requirement would apply to States that have regulations on the location of safety technologies in CMV windshields inconsistent with this final rule.

Question 2: Would the proposed position of allowable vehicle safety technologies (8.5 inches below the upper and 7 inches above the lower edge of the swept area of the windshield) be sufficient for current and developing devices?

Responses: Most commenters supported the dimensions proposed in the NPRM as sufficient for current and developing devices. Some commenters stated that existing technologies have been placed within the dimensions proposed in the NPRM, under previous exemptions, without obstructing the driver's view or causing any adverse safety impacts.

A few commenters stated that devices placed within the dimensions proposed in the NPRM could obstruct the driver's view of pedestrians, cars, and buildings. Some argued that the NPRM fails to account for drivers of different heights and that taller drivers are more likely to have their view obstructed by safety devices in the proposed areas of the windshield. Fastfreight Express provided pictures showing how safety devices on the windshield obstructed the view of cars and buildings.

ATA stated that devices on the windshield could require more or less physical space on the windshield in the future depending on how technologies develop, but that these changes should not be incompatible with the proposal.

A few commenters stated that the proposed position of allowable vehicle safety technologies might not be sufficient for some vehicle types covered by the regulations, such as tractors with split windshields, refuse trucks, motorcoaches, over-the-road-buses, and school buses.

UMA questioned whether limiting the number of devices on the windshield is appropriate.

FMCSA response: FMCSA has granted temporary exemptions that allow safety technologies to be placed 8.5 inches below the upper and 7 inches above the lower swept area of the windshield wipers, all without objection from commenters. FMCSA acknowledges the concerns expressed by several commenters that the sightlines of taller drivers could be obstructed by safety devices mounted high on the windshield. Drivers currently deal with a variety of visual obstructions from the seating position, including the cab's A pillars on each side of the windshield, the sun visor (when pulled down), and the external mirrors (which may be larger than the minimum size required by NHTSA). All of these obstructions are legal, and drivers adapt by moving their upper body and head to obtain a clear sightline to their surroundings. FMCSA has received no information that these obstructions or the safety devices placed in the swept area of windshields under previously granted temporary exemptions have created visual obstructions that cannot be addressed by the driver's routine movements of the head or upper body. Regarding the UMA comment on limiting the number of devices on the windshield, the Agency has not received information from previously granted temporary exemptions that a limitation on the number of devices is necessary and therefore declines to make that change in this final rule.

The Agency is making one change to this final rule from the NPRM. The Agency removes “automatic emergency braking,” from the definition for vehicle safety technology.

This section-by-section analysis describes the changes in numerical order.

The definition for vehicle safety technology is revised by adding more examples of vehicle safety technologies to those listed in the definition.

This section is revised by replacing “100 mm (4 inches)” with “216 mm (8.5 inches)” in paragraph (e)(1)(ii)(A). Additionally, a new paragraph (e)(1)(ii)(C) is added to read “Outside the driver's sight lines to the road and highway signs and signals.”

FMCSA has considered the impact of this notice of rulemaking under E.O. 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, E.O. 13563 (76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory Review, and DOT's regulatory policies and procedures. The Office of Information and Regulatory Affairs (OIRA) determined that this rulemaking is not a significant regulatory action under section 3(f) of E.O. 12866, as supplemented by E.O. 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. Accordingly, the Office of Management and Budget (OMB) has not reviewed it under that E.O.

As stated previously under our discussion of public comments, we received 17 comments. Thirteen of these comments supported increasing the area within which certain vehicle safety technology devices may be mounted on the interior of the CMV windshields and the Agency proposal to add items to the definition of vehicle safety technology.

There are two differences in this regulatory analysis from the regulatory analysis in the NPRM that have a quantified monetary impact. The NPRM used the most up-to-date wage data then available to estimate cost savings to (1) motor carrier companies that would have to file fewer periodic exemption requests, and (2) the Federal Government by reducing the volume of exemption requests to be reviewed and processed. More up-to-date wage data are now available and utilized for this final rule. Other than these two modifications, there are no substantive changes to the requirements and calculations originally proposed in the NPRM.

The mounting of devices on the interior and within the swept area of the windshield is prohibited under 49 CFR 393.60(e), unless they are vehicle safety technologies. FMCSA has authority under 49 U.S.C. 31315(b) to grant exemptions from certain parts of the FMCSRs. FMCSA must publish a notice of each exemption request in the Federal Register (49 CFR 381.315(a)). The Agency must provide the public an opportunity to inspect the information relevant to the application, including any safety analyses that have been conducted. The Agency must also provide an opportunity for public comment on the request. FMCSA notes that the burden associated with preparing an exemption request is not included in a currently approved information collection request (ICR), and the Agency is pursuing completion of that ICR outside of this rulemaking.

As originally enacted, 49 U.S.C. 31315(b) allowed an exemption from a regulation (and a renewal) for no longer than 2 years from its approval date. Section 5206(a)(3) of the FAST Act amended section 31315(b) to allow an exemption to be granted for no longer than 5 years and to be renewed, upon request, for subsequent periods no longer than 5 years. 49 CFR 381.300(b).

Section 393.60(e)(1)(i) of the FMCSRs prohibits the obstruction of the driver's field of view by devices mounted on the interior of the windshield. Antennas and similar devices must not be mounted more than 152 mm (6 inches) below the upper edge of the windshield, and outside the driver's sight lines to the road and highway signs and signals. Section 393.60(e)(1)(i) does not apply to vehicle safety technologies, as defined in 49 CFR 390.5, including “a fleet- related incident management system, performance or behavior management system, speed management system, lane departure warning system, forward collision warning or mitigation system, active cruise control system, and transponder.” Section 393.60(e)(1)(ii) requires devices with vehicle safety technologies to be mounted (1) not more than 100 mm (4 inches) below the upper edge of the area swept by the windshield wipers, or (2) not more than 175 mm (7 inches) above the lower edge of the area swept by the windshield wipers, and outside the driver's sight lines to the road and highway signs and signals.

This final rule revises 49 CFR 393.60 to expand the area where vehicle safety technologies ( e.g., lane departure warning systems, forward collision warning or mitigation systems, active cruise control systems, and transponders) may be installed on the interior of windshields of CMVs. The final rule will generate cost savings for both industry and government and will achieve a level of safety equivalent to, or greater than, the level achieved by the current regulation.

In table 1, we show a summary of the impacts of the final rule. As a result of the previously discussed changes between this regulatory analysis and the NPRM, the projected cost savings to industry and the Federal government have increased. The annualized and 10-year cost savings to industry, both discounted 7 percent, increased approximately 9 percent from the NPRM estimates of $568 and $3,992 to $621 and $4,361, respectively. The annualized and 10-year cost savings to the Federal government, both discounted 7 percent, increased approximately 1 percent, from the NPRM estimates of $10,137 and $71,197 to $10,282 and $72,214, respectively. As a result, the aggregated annual and 10-year cost savings for both the private sector and the Federal government, discounted at 7 percent, increased approximately 2 percent, from $10,705 and $75,189 to $10,903 and $76,575, respectively.

This final rule makes two changes to the Parts and Accessories Necessary for Safe Operation regulations in 49 CFR part 393, subpart A and subpart D.

Under the existing § 393.5 Definitions, vehicle safety technology includes a fleet-related incident management system, performance or behavior management system, speed management system, lane departure warning system, forward collision warning or mitigation system, active cruise control system, and transponder. Under the final rule, this definition will also include braking warning systems, braking assist systems, driver camera systems, attention assist warning, GPS, and traffic sign recognition. Vehicle safety technology includes systems and devices that contain cameras, lidar, radar, sensors, and/or video.

As a result, vehicle safety technologies will expand to cover new devices and systems and better accommodate the advanced driver assistance technologies. The change will have no cost. Benefits will accrue through improved safety performance of CMVs via prevention or reduction of fatalities, injuries, and property damage. For example, lane departure warning systems are anticipated to prevent accidents involving striking a car in an adjoining lane, which could either involve “sideswiping” a vehicle traveling in the same direction or hitting a vehicle traveling in the opposite direction. Section 393.60(e)(1)(ii) notes that the prohibition on obstructions to the driver's field of view in paragraph (e)(1)(i) does not apply to vehicle safety technologies, as defined in § 393.5, that are mounted on the interior of a windshield. The change to § 393.60(e)(1)(ii) expands the area available for mounting vehicle safety technologies on the interior of a windshield. Devices with vehicle safety technologies may be mounted:

• Not more than 216 mm (8.5 inches) below the upper edge of the area swept by the windshield wipers;

• Not more than 175 mm (7 inches) above the lower edge of the area swept by the windshield wipers; and

• Outside the driver's sight lines to the road and highway signs and signals.

The change will have no cost, but will result in an annualized cost savings from reduced application and exemption processing. The cost savings will be $10,903 at both 3 percent and 7 percent discount rates.

The IPHC has recommended regulations that would govern the Pacific halibut fishery in 2022, pursuant to the Convention between Canada and the United States for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Convention), signed at Ottawa, Ontario, on March 2, 1953, as amended by a Protocol Amending the Convention (signed at Washington, DC, on March 29, 1979).

As provided by the Northern Pacific Halibut Act of 1982 (Halibut Act), the Secretary of State, with the concurrence of the Secretary of Commerce, may accept or reject, on behalf of the United States, regulations recommended by the IPHC in accordance with the Convention. 16 U.S.C. 773b. The Secretary of State, with the concurrence of the Secretary of Commerce, accepted the 2022 IPHC regulations on February 18, 2022.

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

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

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

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

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

The IPHC held its annual meeting remotely by video conference from January 24 through 28, 2022, and recommended a number of changes to the previous IPHC regulations (86 FR 13475, March 9, 2021). On February 18, 2022, the Secretary of State with the concurrence of the Secretary of Commerce accepted the annual management measures, including the following changes to Section 5, Section 29, and other Sections of the 2022 IPHC regulations:

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

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

3. new harvest recordkeeping requirements for Area 2C and Area 3A guided anglers to maintain a harvest record if a halibut annual limit is in place in Section 29; and

4. minor technical corrections to improve consistency and clarity throughout the IPHC regulations.

Pursuant to regulations at 50 CFR 300.62, the 2022 IPHC annual management measures are published in the Federal Register in this action to provide notice of their regulatory effectiveness and to inform persons subject to the regulations of their restrictions and requirements. Because the regulations published in this action are applicable to the entire Convention area, these regulations include some provisions relating to and affecting Canadian fishing and fisheries. In separate actions, NMFS may implement more restrictive regulations for the U.S. halibut fishery or components of it; therefore, anglers are advised to check the current Federal and IPHC regulations prior to fishing.

The IPHC recommended to the governments of Canada and the United States fishery catch limits for 2022 totaling 33,190,000 lb (15,055 mt). Fishery catch limits are referred to as Fishery Constant Exploitation Yield (FCEY) by the IPHC, which is the amount of yield for the directed Pacific halibut fisheries dependent upon allocation agreements in each IPHC regulatory area. Coastwide, the 2022 FCEY increased 9.4 percent over the FCEY implemented in 2021. Except for Area 2A, the FCEY in each regulatory area increased. The FCEY for Area 2A decreased by approximately 1.3 percent relative to the 2021 catch limit. A description of the process the IPHC used to set these catch limits follows.

For the upcoming 2022 halibut fishing year, the IPHC conducted its annual stock assessment using a range of updated data sources as described in detail in the IPHC overview of data sources for the Pacific halibut stock assessment, harvest policy, and related analyses (IPHC-2022-AM098-10; available at www.iphc.int ). To evaluate the Pacific halibut stock, the IPHC used an “ensemble” of four equally weighted models, comprised of two long time-series models incorporating data from 1888 to the present, and two short time-series models incorporating data from 1996 to the present. Each time-series uses data that are divided either by four geographical regions or aggregated into coastwide summaries. These models incorporate data, including 2021 data, from the IPHC Fishery Independent Setline Survey (FISS), the commercial halibut fishery, the most recent NMFS Eastern Bering Sea trawl survey, sex-specific recreational age composition data from Area 3A, weight-at-age and male/female sex ratio estimates by region in the directed commercial fisheries and in the FISS, commercial fishery logbook information, and age distribution information for bycatch, sport, and sublegal discard removals.

The results of the ensemble models are integrated and incorporate uncertainty in natural mortality rates, environmental effects on recruitment, and other structural and parameter categories, consistent with practices in place since 2012. The data and assessment models used by the IPHC are reviewed by the IPHC's Scientific Review Board comprised of non-IPHC scientists who provide an independent scientific review of the data and stock assessment to provide recommendations to IPHC staff and the Commissioners. The Scientific Review Board did not identify any substantive errors in the data or methods used in the 2022 stock assessment. NMFS believes the IPHC's data and assessments models constitute best available science on the status of the Pacific halibut resource.

The IPHC's data, including the FISS, indicate that the Pacific halibut stock declined continuously from the late 1990s to around 2012, largely as a result of decreasing size at a given age (size-at-age), higher harvest rates in the early 2000s, and weaker recruitment than observed during the 1980s. From about 2013 to 2016, there was a slight increasing trend in the spawning biomass, followed by a slight decline continuing into the current assessment. Results from the 2021 stock assessment incorporate data from an expansion of the FISS throughout the survey range over the 2011-2019 period. Among other things, improvements in the FISS spatial coverage enhance understanding of spatial and temporal Pacific halibut density, and reduces the uncertainty in the weight per unit effort (WPUE) and number per unit effort (NPUE) indices.

Overall, the spawning biomass is estimated to be approximately 191,000,000 lb (86,636.14 mt) at the beginning of 2022. The stock is currently estimated to be at 33 percent of its unfished state. This estimate reflects updated calculations recommended during stock assessment external review and review by the Scientific Review Board, as well as developments in the IPHC Management Strategy Evaluation.

The IPHC's current interim management procedure that was adopted in 2020 strives to maintain the total mortality of halibut across its range from all sources based on a reference level of fishing intensity so that the Spawning Potential Ratio (SPR) is equal to 43 percent. The reference fishing intensity of F43 percent SPR seeks to allow a level of fishing intensity that is expected to result in approximately 43 percent of the spawning biomass per recruit compared to an unfished stock ( i.e., no fishing mortality). Lower F values would be expected to result in higher fishing intensity. The 2021 stock assessment and estimates of fishing intensity were enhanced by newly available data on the male/female sex ratio for the 2020 commercial fishery landings. Combined with similar data collected from 2017 to 2019 in the commercial fisheries, the information on the sex ratio affected the treatment of the stock assessment data for the directed commercial fishery in the stock assessment models; it did not change the treatment or sex ratio estimates of the mortalities associated with the recreational, subsistence, or non-directed halibut fisheries.

The IPHC harvest decision table (Table 3 in IPHC-2022-AM098-10; available at www.iphc.int ) provides a comparison of the relative risk of a decrease in stock biomass, stock status, or fishery metrics, for a range of fishing intensities for 2022. The harvest decision table employs two metrics of fishing mortality: (1) The Total Constant Exploitation Yield (TCEY), which includes harvests and incidental discard mortality from directed commercial fisheries, mortality estimates from sport, subsistence, and personal use, and estimates of non-directed discard mortality of halibut over 26 inches (66.0 cm); and, (2) Total Mortality, which includes all the above sources of mortality, plus estimates of non-directed discard mortality of halibut less than 26 inches (66.0 cm) (U26). Although U26 halibut mortality is factored into the stock assessment and harvest strategy calculations, there is currently no reliable tool for describing the annual coastwide distribution of U26 halibut.

For 2022, the IPHC adopted a TCEY totaling 41,220,000 lb (18,697 mt) coastwide. This corresponds to a fishing intensity of approximately F43 percent, which is consistent with the target level of fishing intensity used to establish the TCEY for 2021. The 2022 TCEY is 2,220,000 lb (1,007.0 mt) greater than the TCEY adopted in 2021.

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

At a 41,220,000 lb (18,697 mt) TCEY, the IPHC estimates that the spawning biomass will likely decrease from 2023 to 2025 relative to 2022. Specifically, the IPHC estimates there is a 59 percent probability that the spawning biomass will decrease in 2023 relative to 2022, and there is a 25 percent probability that the decrease in 2023 will be at least 5 percent of the 2022 spawning biomass. The IPHC also noted that if the reference level of fishing intensity continues, the probability of a spawning biomass decrease is expected to decline as the strong 2012 cohort matures. The factors that the IPHC considered in making their TCEY recommendations are described in the 2022 Annual Meeting Report (IPHC-2022-AM098-R; available at www.iphc.int ) and the key recommendations are briefly summarized here.

This final rule does not establish the combined commercial and recreational catch limit for Area 2B (British Columbia), which is subject to rulemaking by the Canada and British Columbia governments. However, the IPHC's recommendation for the Area 2B catch limit is directly related to the current and future U.S. catch limits established by this final rule and is therefore discussed herein. The IPHC recommended a 2022 TCEY of 7,560,000 lb (3,429 mt) for Area 2B, which equates to 18.3 percent of the total coastwide TCEY. The IPHC made this recommendation after considering recent historic harvests in Area 2B, the distribution of the TCEY in Area 2B as estimated from the FISS under the current interim management procedure, and other factors described in the 2022 Annual Meeting Report (IPHC-2022-AM098-R; available at www.iphc.int ).

The IPHC recommended an allocation to Area 2A that would provide a TCEY of 1,650,000 lb (748 mt) with a combined commercial, tribal, and recreational catch limit of 1,490,000 lb (676 mt). This allocation is larger than the catch limit that would apply to Area 2A under the adopted fishing intensity of F43 percent and the proportion of the stock as estimated from the FISS under the current interim management procedure. To achieve the Area 2A and Area 2B allocations and still maintain the target coastwide fishing intensity of F43 percent, the IPHC recommended an overall reduction in catch limits in other IPHC regulatory areas in U.S. waters that are intended to maintain total mortality to the adopted fishing intensity of F43 percent.

After the allocations for Areas 2A and 2B are accounted for, the IPHC apportioned the remaining TCEY to the Alaska regulatory areas (Areas 2C through Area 4) after considering the distribution of harvestable biomass of halibut based on the FISS, as well as 2021 harvest rates, the recommendations from the IPHC's advisory boards, public input, and social and economic factors. All U.S. areas maintained or increased in TCEY relative to 2021 (see Table 1). The largest increase was 25 percent in Area 3B, while Areas 2C, 3A, 4A, 4B, and 4CDE received increases ranging from 1.9 percent to 3.9 percent relative to 2021. Area 2A received the same TCEY in 2022 as it did in 2021. The IPHC determined that the 2022 catch limit recommendations are consistent with its conservation objectives for the halibut stock and its management objectives for the halibut fisheries.

The IPHC also considered the Catch Sharing Plan for Area 4CDE developed by the NPFMC in its catch limit recommendation. The Area 4CDE catch limit is determined by subtracting estimates of the Area 4CDE subsistence harvests, commercial discard mortality, and non-directed discard mortality of halibut over 26 inches (66.0 cm) from the area TCEY. When the resulting Area 4CDE catch limit is greater than 1,657,600 lb (751.87 mt), a direct allocation of 80,000 lb (36.29 mt) is made to Area 4E to provide CDQ fishermen in that area with additional harvesting opportunity. After this 80,000 lb (36.29 mt) allocation is deducted from the catch limit, the remainder is divided among Areas 4C, 4D, and 4E according to the percentages specified in the CSP. Those percentages are 46.43 percent each to 4C and 4D, and 7.14 percent to 4E. For 2021, the IPHC recommended a catch limit for Area 4CDE of 2,060,000 lb (934 mt).

The IPHC considers advice from the IPHC's two advisory boards, as well as direct testimony from the public, when selecting opening and closing dates for the commercial halibut fishery. The 2022 commercial halibut fishery opening date for all IPHC regulatory areas is March 6, 2022. The closing date for the commercial halibut fisheries in all IPHC regulatory areas is December 7, 2022. These commercial season dates are the same season dates adopted by the IPHC in 2021; they result in a longer season compared to years prior to 2021 when the commercial halibut fisheries opened mid-March and closed mid-November. The extended season maintains harvesting and market flexibility that stakeholders have identified as important during the current period of uncertainty. These commercial season dates are not expected to result in detrimental conservation effects. The season dates allow for the anticipated time required to fully harvest the commercial halibut catch limits, seasonal holidays, and adequate time for IPHC staff to review the complete record of 2021 commercial catch data for use in the stock assessment process. The IPHC also considered the time required for the administrative tasks that are linked to halibut regulations developed independently by the domestic partners when establishing these season dates.

For Area 2A, the IPHC recommended that the non-treaty directed commercial fishery will open for 58 hours, beginning at 0800 hours on June 28 and close at 1800 hours on June 30. After this first opening, if the IPHC determines that the fishing limit has not been exceeded, it may announce a second fishing period of up to three fishing days to begin on Tuesday two weeks after the first period opens. This season structure is consistent with the approach used during 2021 in Area 2A. Specific fishing period limits (vessel quota) will be determined and communicated by IPHC.

The NMFS West Coast Region has published a proposed rule (February 17, 2022, 87 FR 9021), with public comments accepted for 15 days, to approve the Pacific halibut CSP for Area 2A off Washington, Oregon, and California and implement annual management measures for Area 2A as recommended by the PFMC in the CSP. These annual management measures include sport fishery allocations and management measures for Area 2A which are not implemented through the IPHC. NMFS will address any comments received in a final rule. The proposed and final rules for the Area 2A CSP will be available on the NMFS West Coast Region's website at https://www.fisheries.noaa.gov/action/2022-pacific-halibut-catch-sharing-plan and also at www.regulations.gov.

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

At its January 2022 meeting, the IPHC recommended a CCL of 4,460,000 lb (2,023 mt) for Area 2C. Following the CSP allocations in Tables 1 and 3 of subpart E of 50 CFR part 300, the charter fishery is allocated 820,000 lb (372 mt) of the CCL and the remainder of the CCL, 3,650,000 lb (1,656 mt) is allocated to the commercial fishery. Discard mortality in the amount of 140,000 lb (63.5 mt) was deducted from the commercial allocation to obtain the commercial catch limit of 3,510,000 lb (1,592.1 mt). The commercial allocation (including discard mortality) increased by 50,000 lb (22.7 mt), or 1.4 percent, from the 2021 allocation of 3,600,000 lb (1,632.9 mt). The 2022 Area 2C charter allocation of 820,000 lb (372 mt) is 10,000 lb (4.5 mt), or 1.2 percent more than the 2021 charter sector allocation of 810,000 lb (367.41 mt).

The IPHC recommended a CCL of 12,070,000 lb (5,475 mt) for Area 3A. Following the CSP allocations in Tables 2 and 4 of subpart E of 50 CFR part 300, the charter fishery is allocated 2,110,000 lb (957 mt) of the CCL and the remainder of the CCL, 9,960,000 lb (4,518 mt), is allocated to the commercial fishery. Discard mortality in the amount of 410,000 lb (185.9 mt) was deducted from the commercial allocation to obtain the commercial catch limit of 9,550,000 lb (4,331.8 mt). The commercial allocation (including discard mortality) increased by about 770,000 lb (349.3 mt), or 8.4 percent, from the 2021 allocation of 9,190,000 lb (4,168.51 mt). The charter allocation increased by 160,000 lb (72.6 mt), or 8.2 percent, from the 2021 allocation of 1,950,000 lb (884.51 mt).

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

To provide recommendations for annual management measures intended to limit charter harvest to the charter catch allocation, the NPFMC formed the Charter Halibut Management Committee (Committee) as a stakeholder advisory body. The Committee is composed of representatives from the charter fishing industry in Areas 2C and 3A who provide input on the preferred range of charter management measures each year. In October 2021, the Committee began their annual process by requesting analysis of management measures that would result in charter halibut removals within the range of expected allocations for each area. In addition, this annual analysis, which is prepared by the Alaska Department of Fish Game (ADFG), includes information about charter harvests in the prior year. The Analysis of Management Options for the Area 2C and 3A Charter Halibut Fisheries for 2022 (charter halibut analysis) is available at https://www.npfmc.org/.

Management of charter halibut fishing in Areas 2C and 3A has been challenging in recent years. The 2020 charter fishing season was greatly impacted by the coronavirus pandemic, resulting in an unexpected and significant drop in charter fishing effort and harvest. The NPFMC and IPHC responded with revised management measures (June 19, 2020, 85 FR 37024). Despite these liberalized management measures, 2020 charter halibut harvests were 36.0 percent below the Area 2C allocation, and 6.6 percent below the Area 3A allocation. Expecting a similar reduction in charter halibut harvest due to the ongoing coronavirus pandemic conditions and associated travel restrictions, the 2021 management measures included a buffer to account for reductions in charter harvest anticipated to be similar to 2020 in order to allow the sector to more completely use its allocation (86 FR 13475, March 9, 2021). However, the charter halibut analysis found that the 2021 charter halibut harvests were 42.5 percent above the Area 2C allocation, and 25.9 percent above the Area 3A allocation. Overall, 2021 charter halibut harvests were significantly higher than expected despite challenging pandemic conditions and continuing uncertainty. Communities that are highly dependent on cruise ship tourism, which was significantly reduced in 2021, did experience significant reductions in charter halibut harvests relative to historical conditions.

After reviewing the charter halibut analysis, the Committee made conservative recommendations for preferred management measures to the NPFMC for 2022. These recommendations are intended to provide equitable harvest opportunity across charter business arrangements and maintain total charter harvests within the 2022 allocations for both Areas 2C and 3A. These recommendations do not include an additional buffer as was adopted in the 2021 management measures. The NPFMC considered the charter halibut analysis, the recommendations of the Committee, and public testimony to develop its recommendation to the IPHC. The IPHC took action consistent with the NPFMC's recommendations. The NPFMC has used this process to select and recommend annual management measures to the IPHC since 2012.

The IPHC recognizes the role of the NPFMC to develop policy and regulations that allocate the Pacific halibut resource among fishermen in and off Alaska, and that NMFS has developed numerous regulations to support the NPFMC's goals of limiting charter harvests. For 2022, the IPHC concluded that in Area 3A, despite an 8.2 percent increase in the charter catch limit relative to 2021, the 2022 management measures should be more conservative than those adopted in 2021 given the high charter halibut removals observed in 2021. For the same reasons, for Area 2C, despite an increase in the charter catch limit relative to 2021, the IPHC concluded that the 2022 management measures should be more conservative than those adopted in 2021. The IPHC's recommendations are consistent with the recommendations of the NPFMC and the Committee. The IPHC determined that limiting charter harvests by implementing the management measures discussed below would meet conservation and allocation objectives.

For 2022 in Area 2C, the IPHC recommended the continuation of a one-fish daily bag limit with a reverse slot limit that prohibits a person on board a charter vessel referred to in 50 CFR 300.65 and fishing in Area 2C from taking or possessing any halibut, with head on, that is greater than 40 inches (101.6 cm) and less than 80 inches (203.2 cm). The charter halibut size limits referenced in this document are as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with mouth closed, to the extreme end of the middle of the tail. These measures are projected to yield 814,000 lb (369.2 mt) of charter removals, which is 6,000 lb (2.7 mt) and 0.7 percent below the Area 2C charter allocation. Reverse slot limits have proven an effective tool to limit the number and pounds of retained halibut. These are more conservative than the primary management measures for Area 2C in 2021, which were one halibut per charter angler, less than or equal to 50 inches (127.0 cm) or greater than 72 inches (182.9 cm). The NPFMC and IPHC considered information on charter removals in 2021 and for previous years, the projections of charter harvest, and the charter allocation. With this information, the NPFMC and IPHC determined that more conservative management measures in Area 2C, relative to the 2021 measures, were appropriate to limit charter removals to the 2022 allocation.

For 2022, the IPHC recommended the following management measures for Area 3A: (1) A two-fish bag limit with a 28-inch (71.1 cm) maximum size limit on one of the halibut; (2) a one-trip per day limit for charter vessels and for charter halibut permits for the entire season; (3) prohibition on halibut retention by charter vessel anglers on all Wednesdays; and, (4) prohibition on halibut retention by charter vessel anglers on the following Tuesdays: July 26 and August 2. The projected charter harvest for 2022 under this combination of recommended measures is 2,096,000 lb (950.7 mt), which is 14,000 lb (6.4 mt) and 0.7 percent below the charter allocation. Each of these management measures is described in the following section.

These management measures are more conservative than the primary management measures for Area 3A in 2021 when an overage occurred. The NPFMC and IPHC considered information on charter removals in 2021 and for previous years, the projections of charter harvest, and the charter allocation. With this information, the NPFMC and IPHC determined that more restrictive management measures in Area 3A, relative to the 2021 measures, were appropriate to limit charter removals to the 2022 allocation.

The 2022 charter halibut fishery in Area 3A will be managed under a two-fish daily bag limit in which one of the retained halibut may be of any size and one of the retained halibut must be 28 inches (71.1 cm) or less. The 28 inch (71.1 cm) second fish maximum size limit was in effect from 2016 through 2019 in Area 3A.

Charter halibut permits and charter vessels in 2022 are authorized only for use to catch and retain halibut on one charter halibut fishing trip per day in Area 3A. If no halibut are retained during a charter vessel fishing trip, the charter halibut permit and vessel may be used to take an additional trip to catch and retain halibut that day. These regulations have been in place each year since 2016, and have proven to be effective in controlling halibut harvests.

For purposes of the trip limit in Area 3A in 2022, a charter vessel fishing trip will end when anglers or halibut are offloaded, or at the end of the calendar day, whichever occurs first. Charter operators are still able to conduct overnight trips and anglers may retain a bag limit of halibut on two calendar days, but operators are not allowed to begin another overnight trip until the day after the trip ends. GAF halibut are exempt from the trip limit. Therefore, GAF may be used to harvest halibut on a second trip in a day, but only if exclusively GAF halibut are harvested on that trip.

The NPFMC and the IPHC recommended a closure on retaining halibut by charter vessel anglers on all Wednesdays and on two Tuesdays—July 26 and August 2—for Area 3A in 2022. Retention of GAF halibut is allowed on charter vessels on closed days, but all other halibut that are caught while fishing on a charter vessel must be released. The day of week closures effectively decrease the charter halibut harvest to help stay within the allocation.

The recordkeeping requirements needed to enforce annual limits for charter vessel anglers in Area 2C and Area 3A were added to the general provisions of Section 29(1). This eliminates the need to annually add or remove the specifications for the harvest record card required when an annual limit is selected as a charter management measure in either Area 2C or 3A.

Additionally, Section 29(3) was amended to allow the use of ADFG-approved electronic harvest records for charter vessel anglers in Areas 2C and 3A, if those areas are subject to an annual limit on the number of Pacific halibut that may be retained. Under the amended regulations, existing approved physical harvest records will also continue to be accepted. This creates regulatory consistency for anglers who concurrently retain halibut as well as State managed species for which there is an annual limit.

“Authorized representative of the Commission” was defined in Section 3 as “any IPHC employee or contractor authorized to perform any task described in these Regulations.” This clarifies the existing intent of “an authorized representative of the Commission” where used in the IPHC regulations. Additionally, minor modifications were made to capitalization and list formatting throughout the IPHC regulations. These amendments improve consistency and clarity but do not result in substantive changes to the IPHC regulations.

The following annual management measures for the 2022 Pacific halibut fishery are those recommended by the IPHC and accepted by the Secretary of State, with the concurrence of the Secretary of Commerce.

These Regulations may be cited as the International Pacific Halibut Commission (IPHC) Fishery Regulations (2022).

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

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

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

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

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

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

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

(1) In these Regulations,

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

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

(c) “authorized representative of the Commission” means any IPHC employee or contractor authorized to perform any task described in these Regulations.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(u) “VMS transmitter” means a NOAA Fisheries-approved vessel monitoring system transmitter that automatically determines a vessel's position and transmits it to a NOAA Fisheries-approved communications service provider. 1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) Closed areas;

(b) fishing periods;

(c) fishing period limits;

(d) gear restrictions;

(e) recreational (sport) bag limits;

(f) size limits; or

(g) vessel clearances.

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

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

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

(a) Hook straightening;

(b) cutting the gangion near the hook; or

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

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

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

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

(a) May be retained for personal use; or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(c) the remaining fishery limit.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(3) The vessel clearance required under paragraph (1) prior to fishing in IPHC Regulatory Area 4A may be obtained only at Nazan Bay on Atka Island, Dutch Harbor, or Akutan, Alaska, from the authorized clearance personnel.

(4) The vessel clearance required under paragraph (1) prior to fishing in IPHC Regulatory Area 4B may only be obtained at Nazan Bay on Atka Island or Adak, Alaska, from the authorized clearance personnel.

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

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

(7) Before unloading any Pacific halibut caught in IPHC Regulatory Area 4A, a vessel operator may obtain the clearance required under paragraph (1) only in Dutch Harbor or Akutan, Alaska, by contacting the authorized clearance personnel.

(8) Before unloading any Pacific halibut caught in IPHC Regulatory Area 4B, a vessel operator may obtain the clearance required under paragraph (1) only in Nazan Bay on Atka Island or Adak, by contacting the authorized clearance personnel by VHF radio or in person.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) except that a person may retain Pacific halibut taken with longline or single trap gear if such retention is authorized by DFO as defined by Pacific Fishery Regulations and Conditions of Licence; or

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

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

(a) except that a person may possess Pacific halibut taken with longline or single trap gear if such retention is authorized by DFO as defined by Pacific Fishery Regulations and Conditions of Licence; or

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

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

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

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

(b) the vessel's registration number.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) Maintained on board the vessel;

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) Maintained on board the vessel;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(c) the daily bag limit is two (2) Pacific halibut of any size per day, per person, except that between 1 April 2021 and 31 March 2022 only, DFO may implement a daily bag limit of three (3) Pacific halibut per day, per person.

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

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

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

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

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

(c) no person may possess more than two daily bag limits;

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

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

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

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

(h) if there is an annual limit on the number of Pacific halibut that may be retained by a charter vessel angler as defined at 50 CFR 300.61, for purposes of enforcing the annual limit, each charter vessel angler must:

(1) Maintain a nontransferable harvest record in the angler's possession if retaining a Pacific halibut for which an annual limit has been established. Such harvest record must be maintained either on the angler's State of Alaska recreational (sport) fishing license, an ADFG approved electronic harvest record, or on a Sport Fishing Harvest Record Card obtained, without charge, from ADFG offices, the ADFG website, or fishing license vendors;

(2) immediately upon retaining a Pacific halibut for which an annual limit has been established, permanently and legibly record the date, location (IPHC Regulatory Area), and species of the catch (Pacific halibut) on the harvest record; and

(3) record the information required by paragraph 1(h)(2) on any duplicate or additional recreational (sport) fishing license issued to the angler, duplicate electronic harvest record, or any duplicate or additional Sport Fishing Harvest Record Card obtained by the angler for all Pacific halibut previously retained during that year that were subject to the harvest record reporting requirements of this Section.

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

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

(b) no person on board a charter vessel (as referred to in 50 CFR 300.65) shall catch and retain any Pacific halibut that with head on is greater than 40 inches (101.6 cm) and less than 80 inches (203.2 cm) as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with mouth closed, to the extreme end of the middle of the tail.

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

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

(b) at least one of the retained Pacific halibut must have a head-on length of no more than 28 inches (71.1 cm) as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with mouth closed, to the extreme end of the middle of the tail. If a person recreational (sport) fishing on a charter vessel in IPHC Regulatory Area 3A retains only one Pacific halibut in a calendar day, that Pacific halibut may be of any length;

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

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

(e) no person on board a charter vessel may catch and retain Pacific halibut on any Wednesday, or on the following Tuesdays in 2022: July 26 and August 2.

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

These IPHC annual management measures are a product of an agreement between the United States and Canada and are published in the Federal Register to provide notice of their effectiveness and content. Pursuant to Section 4 of the Northern Pacific Halibut Act of 1982, 16 U.S.C. 773b, the Secretary of State, with the concurrence of the Secretary of Commerce, may accept or reject but not modify these recommendations of the IPHC. These regulations become effective when such acceptance and concurrence occur. The notice-and-comment and delay-in-effectiveness date provisions of the Administrative Procedure Act (APA), 5 U.S.C. 553(b) and (d), are inapplicable to IPHC management measures because these regulations involve a foreign affairs function of the United States, 5 U.S.C. 553(a)(1). As stated above, the Secretary of State has no discretion to modify the recommendations of the IPHC. The additional time necessary to comply with the notice-and-comment and delay-in-effectiveness requirements of the APA would disrupt coordinated international conservation and management of the halibut fishery pursuant to the Convention and the Northern Pacific Halibut Act of 1982.

The publication of these regulations in the Federal Register provide the affected public with notice that the IPHC management measures are in effect. Furthermore, no other law requires prior notice and public comment for this rule. Because 5 U.S.C. 553 or any other law does not require prior notice and an opportunity for public comment for this notice of the effectiveness of the IPCH's 2022 management measures, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. Executive Order 12866 does not apply to this final rule because these measures pertain to a foreign affairs function of the United States.

The Paperwork Reduction Act of 1995 requires consideration of the impact of recordkeeping and other information collection burdens imposed on the public. Alaska state law establishes information collection requirements regarding harvest records for individual recreational anglers. See Alaska Admin. Code tit. 5, § 75.006(a) (2021). This final rule contains no new recordkeeping requirements beyond those contained in Alaska state law and therefore involves no additional collection of information burden. Moreover, because there is, at present, no annual limit on the number of Pacific halibut that may be retained by a charter vessel angler as defined at 50 CFR 300.61, the recordkeeping requirements referenced in section 29(1)(h) of the IPHC's Annual Management Measures do not apply during 2022.