The Rural Business-Cooperative Service is issuing a correction to the final rule that published December 21, 2021, at 86 FR 72151. In that rule, an inadvertent error provided an incorrect section reference in § 4274.333(b)(4)(iii). This correcting amendment provides the proper information.

For the reasons stated in the preamble, the Rural Business-Cooperative Service corrects 7 CFR part 4274 with the following correcting amendment:

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this interim final rule. U.S. Customs and Border Protection (CBP) also invites comments on the economic, environmental, or federalism effects that might result from this regulatory change. Comments that will provide the most assistance to CBP will reference a specific portion of the rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. Written comments must be submitted on or before May 2, 2022. CBP will consider those comments and make any changes appropriate after consideration of those comments.

The Visa Waiver Program (VWP) permits eligible citizens and nationals from 40 participating countries to apply for admission to the United States at ports of entry for periods of 90 days or less for business or pleasure without first obtaining a nonimmigrant B-1, B-2, or B-1/B-2 visa. The Department of Homeland Security (DHS) is amending its regulations to require VWP travelers applying for admission at U.S. land ports of entry to receive a travel authorization via the Electronic System for Travel Authorization (ESTA) from CBP prior to applying for admission to the United States.

A travel authorization via ESTA is a positive determination of eligibility to travel to the United States under the VWP. Travelers without a travel authorization must have a visa issued by a U.S. Embassy or Consulate for admission to the United States.

Currently, VWP travelers applying for admission at U.S. land ports of entry must complete a paper I-94W Nonimmigrant Visa Waiver Arrival/Departure Record (Form I-94W) prior to admission that provides biographical and travel information to CBP. Through this interim rule, instead of completing a paper Form I-94W at land ports of entry, VWP travelers must now provide this information electronically to CBP via ESTA.

DHS has already instituted the ESTA program at air and sea ports of entry. On June 9, 2008, DHS published an interim final rule (IFR), “Changes to the Visa Waiver Program to Implement the Electronic System for Travel Authorization (ESTA) Program,” in the Federal Register (73 FR 32440) (hereafter, “ESTA Air and Sea IFR”) announcing the creation of the ESTA program for nonimmigrant visitors traveling to the United States by air or sea under the VWP. After a thorough review of the comments received, on June 8, 2015, DHS published in the Federal Register (80 FR 32267) a final rule titled “Changes to the Visa Waiver Program to Implement the Electronic System for Travel Authorization (ESTA) Program and the Fee for Use of the System” (hereafter, “ESTA Air, Sea, and Fee Final Rule”). 1 Specifically, DHS amended title 8 of the Code of Federal Regulations (CFR) to provide that VWP travelers applying for admission at U.S. air and sea ports of entry must receive a travel authorization from CBP via ESTA. See 8 CFR 217.5 (ESTA regulations). The ESTA regulations set forth the general requirements, the time frame for obtaining a travel authorization, the required data elements, the duration of a travel authorization, and the fee for obtaining a travel authorization. With the implementation of ESTA, VWP travelers who arrive at air and sea ports of entry are no longer required to complete a paper Form I-94W.

This interim rule expands the requirements of ESTA to land ports of entry. Specifically, it extends the electronic collection of the information requested on paper Form I-94W to VWP travelers who intend to travel to the United States by land. For these travelers, all the ESTA requirements in 8 CFR 217.5 are identical to air and sea travelers, except for the time frame for receiving a travel authorization.

As provided in 8 CFR 217.5(b), air and sea VWP travelers must receive a travel authorization prior to embarking on a carrier for travel to the United States. Under this interim rule, however, VWP travelers intending to travel to the United States by land must instead receive a travel authorization prior to application for admission to the United States. The different time frames take into account the fact that travel by land is often by privately owned vehicle or on foot and not by carrier, as is usually the case when people travel to the United States by air or sea.

To expedite the admission process, DHS encourages VWP travelers who intend to travel to the United States by land to apply for a travel authorization at least 72 hours in advance of their anticipated arrival at a U.S. land port of entry. By submitting an ESTA application well in advance of anticipated arrival at a land port of entry, a traveler will be able to minimize the likelihood that he or she will be found to be inadmissible under the VWP upon arrival at the port of entry and prevent a potentially long wait time at the border while his or her application is under review.

Implementing ESTA at land ports of entry will expedite the admission of VWP travelers and reduce traveler delays, especially when VWP travelers apply for a travel authorization in advance of travel. A travel authorization will be valid at all ports of entry. Therefore, if a VWP traveler already has a valid travel authorization obtained for air or sea travel, the traveler will not need to obtain another travel authorization for admission at a land port of entry.

Following the implementation of ESTA at U.S. land ports of entry, all VWP travelers are required to complete the electronic version of the paper Form I-94W ( i.e., an ESTA application) instead of the paper Form I-94W.

As discussed in Section IV(B) of the Background section, “Executive Orders 13563 and 12866,” and detailed in the complete regulatory assessment entitled “Regulatory Assessment for the Implementation of the Electronic System for Travel Authorization (ESTA) at U.S. Land Borders Interim Final Rule,” available at docket number USCBP-2021-0014, this rule will provide immediate benefits to VWP travelers and to CBP. This rule will produce a consistent, modern VWP admission policy, strengthen national security through enhanced traveler vetting, expedite entry processing at land ports of entry, collect Form I-94W information electronically, and reduce inadmissible traveler inspections, generating time and cost savings for CBP and VWP travelers.

Pursuant to section 217 of the Immigration and Nationality Act (INA), 8 U.S.C. 1187, the Secretary of Homeland Security, in consultation with the Secretary of State, may designate countries for participation in the VWP if certain requirements are met. See 8 U.S.C. 1187(c)(2). The INA also sets forth requirements for continued eligibility and termination of VWP status.

Eligible citizens and nationals of VWP countries may apply for admission at a U.S. port of entry as nonimmigrant visitors for a period of ninety (90) days or less for business or pleasure without first obtaining a nonimmigrant B-1, B-2, or B-1/B-2 visa. These travelers, however, must comply with applicable regulations and be admissible under statutory and regulatory requirements. 2 Other nonimmigrant visitors who are not from VWP countries, or visitors from VWP countries who are traveling for purposes other than business or pleasure, must obtain a visa from a U.S. Embassy or Consulate and generally must undergo an interview by consular officials overseas in advance of travel to the United States.

The way in which a VWP traveler is processed at a land port of entry depends on the documentation the traveler presents upon application for admission. In some cases, the VWP traveler may be referred to secondary processing. Generally, in secondary processing, the traveler must complete a paper Form I-94W and pay a $6.00 processing fee. CBP estimates that the paper Form I-94W takes 16 minutes (0.2667 hours) to complete. 3

In secondary, once a VWP traveler completes the paper Form I-94W, a CBP officer enters the traveler's passport and paper Form I-94W information into an internal database and collects the traveler's biometric data ( i.e., fingerprints and photograph). CBP uses the data collected on the paper Form I-94W to populate a database of crossing history and admission status in the United States. This database stores the admissions and departures of travelers entering or leaving the United States. The CBP officer also checks the visitor's personal information against lost and stolen passport databases, government watch lists, and other DHS resources. Based on this information, as well as an interview with the traveler, the CBP officer determines whether or not the traveler is admissible to the United States. If admissible, the CBP officer stamps the traveler's paper Form I-94W and passport, provides the traveler with the departure portion of the paper Form I-94W (“I-94W Departure Record”) and grants the traveler admission to the United States for a period of up to 90 days (“90-day VWP admission period”). 4

The processing of a VWP traveler at a land port of entry may be different if the traveler is within a current 90-day VWP admission period (meaning, the traveler has been processed and admitted into the United States under the VWP within the last 90 days, with or without a current ESTA travel authorization), or if the traveler has a current ESTA travel authorization, but is not within a current 90-day VWP admission period.

In the former case, where the traveler is within a current 90-day VWP admission period, the traveler may generally be processed at CBP's primary inspection. This is because the information typically gathered during secondary processing was already captured earlier through either the traveler's ESTA application (if he or she first arrived in the United States by air or sea) or the Form I-94W (if he or she first arrived in the United States by land). This scenario typically occurs when a VWP traveler who has already been admitted into the United States takes a brief excursion into Canada or Mexico, and then seeks to re-enter the United States to resume his or her visit.

In the latter case, when a VWP traveler has a valid ESTA travel authorization, but is not within a current 90-day VWP admission period, the traveler must go to secondary processing and pay the $6.00 processing fee, but he or she does not need to complete the paper Form I-94W because CBP already has the traveler's relevant information through his or her ESTA application.

If a traveler is refused admission to the United States under the VWP, he or she can visit the nearest U.S. Embassy or Consulate to apply for a nonimmigrant B-1, B-2, or B-1/B-2 visa. This visa would cost a traveler approximately $302 in fees and time costs to obtain. 5 The overall U.S. admission refusal rate for VWP travelers at land ports of entry is low. From fiscal year (FY) 2013 to FY 2017, CBP recorded 4.0 million VWP traveler arrivals at U.S. land ports of entry, with 99.9 percent of arrivals resulting in admissions to the United States and 0.1 percent resulting in refusals based on paper Form I-94W processing. 6

A nonimmigrant noncitizen arriving at a U.S. air or sea port of entry under the VWP must obtain a travel authorization via ESTA prior to embarking on a carrier for travel to the United States. If the traveler does not have a travel authorization, he or she must hold an unexpired visa issued by a U.S. Embassy or Consulate. See Section 217(a) of the INA, 8 U.S.C. 1187(a). See also 8 CFR part 217. The relevant history regarding this ESTA requirement is set forth below.

In response to the events of September 11, 2001, Congress enacted the Implementing Recommendations of the 9/11 Commission Act of 2007, Public Law 110-53 (9/11 Act). To address aviation security vulnerabilities of the VWP, section 711 of the 9/11 Act required the Secretary of Homeland Security, in consultation with the Secretary of State, to develop and implement a fully automated electronic travel authorization system for VWP travelers visiting the United States. The system would collect biographical and other information the DHS Secretary deems necessary to evaluate, in advance of travel, the eligibility of the applicant to travel to the United States under the VWP, and whether such travel poses a law enforcement or security risk. See 8 U.S.C. 1187(h)(3)(A). Prior to the establishment of ESTA, VWP travelers could board planes to the United States and be found inadmissible upon arrival at CBP inspection. By establishing ESTA, DHS is able to identify whether the traveler is likely to be admissible upon arrival before the traveler embarks on travel to the United States.

DHS established the electronic equivalent of the paper Form I-94W process at air and sea ports of entry as set forth in the ESTA Air and Sea IFR (73 FR 32440), published on June 9, 2008, and in the ESTA Air, Sea, and Fee Final Rule (80 FR 32267), published on June 8, 2015. ESTA provides for an electronic collection of the information required on the paper Form I-94W in advance of travel. ESTA fulfills the statutory requirements described in section 711 of the 9/11 Act.

DHS stated in the ESTA Air and Sea IFR that the development and implementation of the ESTA program would eventually allow DHS to automate the requirement that VWP travelers complete a paper Form I-94W prior to being admitted to the United States. See 73 FR 32440 at 32443. While the ESTA Air and Sea IFR established the regulations for ESTA, section 711 of the 9/11 Act required DHS to announce implementation of a mandatory ESTA system by publication of a notice in the Federal Register no less than 60 days before the date on which ESTA would become mandatory for all VWP travelers. On November 13, 2008, DHS published such a notice in the Federal Register (73 FR 67354) announcing that ESTA would be mandatory for all VWP travelers traveling to the United States seeking admission at air and sea ports of entry beginning January 12, 2009. At that point, DHS began an informed compliance period during which VWP travelers who arrived without prior ESTA authorization were not refused admission on that basis, but were instead permitted to complete the paper I-94W upon arrival in the United States. As of June 29, 2010, however, VWP travelers have been required to receive a travel authorization through the ESTA website, https://www.cbp.gov/esta , prior to boarding a conveyance destined for a U.S. air or sea port of entry. See 80 FR 32267 at 32285. Travelers who do not receive authorization through ESTA may still apply for a nonimmigrant B-1, B-2, or B-1/B-2 visa issued by a U.S. Embassy or Consulate.

On March 4, 2010, the United States Capitol Police Administrative Technical Corrections Act of 2009, Public Law 111-145, was enacted. Section 9 of this law, the Travel Promotion Act of 2009 (TPA), mandated that the Secretary of Homeland Security establish a fee for the use of ESTA and begin assessing and collecting the fee.

On August 9, 2010, DHS published an interim final rule “Electronic System for Travel Authorization (ESTA); Travel Promotion Fee and Fee for Use of the System” in the Federal Register (75 FR 47701) (hereafter, “ESTA Fee IFR”) announcing that beginning September 8, 2010, a $4.00 ESTA operational fee would be charged to each ESTA applicant to ensure recovery of the full costs of providing and administering the system and an additional $10.00 Trade Promotion Act (TPA) fee would be charged to each ESTA applicant receiving travel authorization through September 30, 2015. 7 See 8 U.S.C. 1187(h)(3)(B), as amended, and 8 CFR 217.5(h).

In response to the request for comments in the ESTA Air and Sea IFR and the ESTA Fee IFR, DHS received a total of 39 submissions. Most of these submissions contained comments providing support, voicing concerns, highlighting issues, or offering suggestions for modifications to the ESTA program. After review and analysis of the comments, on June 8, 2015, DHS published the ESTA Air, Sea, and Fee Final Rule in the Federal Register (80 FR 32267) with two substantive regulatory changes. The first change allows the Secretary of Homeland Security to adjust travel authorization validity periods on a per country basis from a general validity period of two years, to a three-year maximum or to a lesser period of time. The second change concerns the TPA fee. In accordance with Section 605 of the Consolidated and Further Continuing Appropriations Act of 2015, DHS extended the end date for assessment of the Travel Promotion Act fee to September 30, 2020. DHS also removed a specific reference to the Pay.gov payment system in order to allow for flexibility in how CBP may collect ESTA fees.

The ESTA Air, Sea, and Fee Final Rule also outlines the various operational changes DHS has implemented since the ESTA program's inception based on the experience DHS gained from operating the ESTA program. For example, VWP travelers who provide an email address to DHS when they submit their application will receive an automated email notification indicating that their travel authorization will expire soon. DHS has also updated the information on the ESTA website to address some of the comments. Finally, DHS has also revised some of the ESTA questions to make them more understandable, removed one of the questions, and added some new questions to improve the screening of travelers before their travel to the United States. 8 All these changes took effect on November 3, 2014.

The FAA has received a report indicating multiple nuisance caution “RECIRC SMOKE” EICAS messages that may occur when water accumulates in the AVS duct. The AVS duct is at a lower position than the recirculation smoke detector tubing, and therefore, there is a potential for water to leak onto the AVS duct. Water accumulation in the AVS duct can block AVS system airflow into the airplane, creating a loss of conditioned inflow and result in cold or hot flight deck temperatures. This condition, if not addressed, could affect the flightcrew's ability to maintain continued safe flight and landing. The FAA is issuing this AD to address the unsafe condition on these products.

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

This AD requires replacing the alternative ventilation duct having P/N 216T2101-704 with new P/N 216T2101-707, and for certain airplanes, changing the insulation blanket to install the drain hose. This AD also prohibits the installation of an alternative ventilation duct, P/N 216T2101-704, on any airplane.

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

There are currently no U.S.-registered airplanes affected by this AD. Accordingly, notice and opportunity for prior public comment are unnecessary, pursuant to 5 U.S.C. 553(b)(3). In addition, for the foregoing reason(s), the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include Docket No. FAA-2022-0280 and Project Identifier AD-2021-00504-T at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Brandon Lucero, Aerospace Engineer, Cabin Safety and Environmental Systems Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3569; email: Brandon.Lucero@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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

Currently, there are no affected U.S.-registered airplanes. For any affected airplane that is imported and placed on the U.S. Register in the future, the FAA provides the following cost estimates to comply with this AD:

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

The 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 the event sponsor required a change of location from the planned event area near Atlantic City, NJ. The sponsor notified the Coast Guard on March 17, 2022, of the location move to Brigantine, NJ. Publishing an NPRM would be impracticable and contrary to the public interest, because we must establish this special local regulation by April 2, 2022, to ensure the safety of participants and the public. Possible hazards include risks of participant injury or death resulting from near or actual contact with non-participant vessels traversing through the regulated area.

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 impracticable because immediate action is needed to provide for the safety of life on these navigable waters during a rowing competition on April 2, 2022, and April 3, 2022.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041. The Secretary has delegated ports and waterways authority, with certain reservations not applicable here, to the Commandant via DHS Delegation No. 00170.1(II)(70), Revision No. 01.2. The Commandant has further delegated these authorities within the Coast Guard as described in 33 CFR 1.05-1 and 6.04-6. The Coast Guard has determined that the Stockton University Rowing competition could pose a risk to participants or waterway users if normal vessel traffic were to interfere with the event. Possible hazards include risks of participant injury or death resulting from near or actual contact with non-participant vessels traversing through the regulated areas. In order to protect the safety of all waterway users, including event participants and spectators, this rule establishes a special local regulation on April 2, 2022, and April 3, 2022, within specified waters of Bonita Tideway, Brigantine, NJ. This rule prevents vessels from entering, transiting, mooring or anchoring within areas specifically designated as regulated area during the periods of enforcement, unless authorized by the Captain of the Port (COTP), or designated Event Patrol Commander.

This rule establishes a special local regulation from 4:00 p.m. on April 2, 2022, until 1 p.m. on April 3, 2022. The special local regulation will be enforced from 4:30 p.m. to 7:30 p.m. on April 2, 2022, and from 7:30 a.m. to 12:30 p.m. on April 3, 2022. The regulated area will cover all navigable waters of Bonita Tideway in Brigantine, NJ, within a polygon bounded by the following: Originating on the northern portion at approximate position latitude 39°24′33″ N, longitude 074°22′28″ W; thence southwest across the Bonita Tideway to the shoreline to latitude 39°24′22″ N, longitude 074°22′49″ W; thence southwest along the shoreline to latititude 39°23′49″ N, longitude 074°23′33″ W; thence across the Bonita Tideway to the shoreline at latitude 39°23′43″ N, longitude 074°23′33″ W; thence north along the shoreline to the point of origin. The duration of the regulated area is intended to protect participants and waterway users in these navigable waters before, during, and after the scheduled event. No vessel or person will be permitted to enter the regulated area without obtaining permission from the COTP or a designated representative.

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 and duration of the regulated area, which would impact a small designated area of the Bonita Tideway. Vessels will be able to transit the regulated area during the enforcement period as directed by the Event Patrol Commander (PATCOM) or official patrol vessel.

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 special local regulation lasting only 10 hours over two days that will prohibit or restrict entry within the regulated area during a rowing competition. 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. A memorandum for record (MFR) supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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 special local regulations in 33 CFR 100.1302, Table 1, for the following events only during the hours specified on the dates listed in the following Table:

During the enforcement periods, as reflected in § 100.1302, Table 1, if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign. In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners and marine information broadcasts.

This is a summary of the Commission's document, Second Order on Reconsideration and Order , ET Docket No. 14-165, GN Docket No. 12-268, ET Docket No. 20-36 and ET Docket No. 04-186; FCC 22-6, adopted January 25, 2022 and released January 26, 2022. The full text of this document is available for public inspection and can be downloaded at: https://www.fcc.gov/document/fcc-takes-action-unlicensed-white-space-device-database-issues. When the FCC Headquarters reopens to the public, the full text of this document also will be available for public inspection and copying during regular business hours in the FCC Reference Center, 45 L Street NE, Washington, DC 20554. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format) by sending an email to FCC504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Final Regulatory Flexibility Analyses. The Regulatory Flexibility Act of 1980 (RFA) requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the possible impact of the rule changes contained in this Second Order on Reconsideration on small entities. As required by the RFA, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking ( NPRM ) (86 FR 38969, July 23, 2021). The Commission sought written public comment on the proposals in the NPRM, including comments on the IRFA. No comments were filed addressing the IRFA. Accordingly, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the possible impact of the rule changes contained in the document on small entities. The present FRFA conforms to the RFA and can be viewed under Appendix C of the item at: https://www.fcc.gov/document/fcc-takes-action-unlicensed-white-space-device-database-issues.

Paperwork Reduction Act. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506©(4).

Congressional Review Act. The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs, that this rule is “non-major” under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of this Second Order on Reconsideration and Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

The existing rules prescribe communications between white space devices and a white space database to provide interference protection to other spectrum users—both to authorized services and protected users generally and to licensed wireless microphone operations that are registered at particular times and locations in the database. To provide general protection to authorized services ( e.g., primary and secondary broadcast television users in the TV bands, wireless service providers in the 600 MHz service band) and protected users ( e.g., TV translator receive sites and Multiple Video Program Distributor (MVPD) receive sites), white space devices must re-check the database at least once per day to obtain the list of available channels at the location where the device operates. The Commission established these timeframes because most protected services listed in its databases do not change on a frequent basis, and because the Commission provides updated data to the white space database administrators only once every weekday. To protect licensed wireless microphones operating in the TV bands that are registered in the white spaces database, the Commission requires more frequent communications in the event of microphone usage registrations that need more timely protection. In the 2015 White Spaces Report and Order, the Commission adopted the push notification requirement, which it believed to be an efficient way of achieving this objective. Furthermore, because licensed wireless microphone operations can be registered in any white space database, the Commission required that a white space database administrator share registration information with the other databases in a timely fashion.

The Commission's decision to adopt the push notification requirement was intended to provide protection to licensed wireless microphone operations that may, upon registering to operate on specified TV channels, need quick protection from potential interference from white space device operations. Prior to adopting the Incentive Auction R&O in 2014, which required repurposing and auctioning some TV band spectrum for new 600 MHz wireless service, the Commission had reserved two TV channels where white space devices were not permitted to operate to ensure that there would be spectrum available for wireless microphones used in applications such as electronic news gathering for which it is not possible to register the operating location in the database at least 24 hours in advance. In the Incentive Auction R&O, the Commission decided to no longer designate two unused television channels for wireless microphones and instead took steps to improve the operation of the white space database to provide more immediate protection to wireless microphones. To ensure that registered wireless microphone users continue to receive protection in a timely manner, the Commission then proposed in its 2014 White Spaces NPRM to: (1) Require fixed and Mode II personal/portable white space devices to re-check the database at time intervals not to exceed 20 minutes, (2) eliminate the rule that allows a white space device to continue operating until 11:59 p.m. on the following day if it cannot establish contact with the database, and (3) require database administrators to share wireless microphone registration information between databases within ten minutes.

In the White Spaces Report and Order adopted in August of 2015 the Commission sought to balance the concerns of white space device and wireless microphone proponents when it adopted the push notification requirement in place of the proposed 20-minute re-check requirement to meet its objectives. The Commission was concerned that requiring all white space devices to re-check a database (regardless of their location) for a list of available channels every twenty minutes could unnecessarily burden the database administrators, adversely affect operation of white space devices relying on batteries for operation, and increase costs for white space device users. To ensure that channels would continue to be available for wireless microphones used for events that cannot be anticipated, such as late-breaking news events, the Commission concluded at that time, as suggested by parties in the record, that a reasonable and workable approach to accomplishing its goals was to require that database administrators “push” information to white space devices only in areas where licensed wireless microphones will be used, rather than requiring all white space devices to re-check a database every twenty minutes. Under this approach, when a database administrator receives a registration request for immediate access to particular channels for licensed wireless microphone use, the database administrators would, within ten minutes, share the licensed wireless microphone's channel registration information among themselves and within 20 minutes of receiving that information, would “push” information about changes in channel availability to fixed and Mode II personal/portable white space devices. The Commission provided white space database administrators 12 months after the effective date of the rules, until December 23, 2016, to comply with this new requirement.

Petitions for reconsideration. Google and NAB each filed a petition requesting that the Commission reconsider the push notification requirement, although each express different concerns with the requirement. Google contends that the Commission failed to recognize that, as a technical matter, requiring databases to “push” information to devices is at least as burdensome as requiring devices to “pull” information from databases. Google states that in order for a database to send information to a white space device, the device must either request information very frequently to simulate a push, which dramatically increases server utilization and reduces battery life in devices relying on such a power source, or the device must maintain a persistent connection with the database, which uses bandwidth and reduces battery life by preventing the device from entering a sleep mode. It argues that the push rule would limit the use of battery powered, low-bandwidth, or remote white space devices designed to operate for very long periods on a single battery charge. It also argues that unless an unlicensed device makes frequent “pulls” from the database or maintains a persistent, open connection, security features implemented on the device or network may block database messages from reaching the device. Google further argues that limiting the geographic area for database pushes does not reduce the burden on unlicensed devices or databases because there is no way for a database to communicate information to a particular device unless all devices in all locations continually check for updates.

NAB argues that the push notification requirement is insufficient for providing technical assurance that white space devices will actually receive messages and cease operation on channels registered for use by licensed wireless microphones, and is concerned that white space devices may be used in internal private networks protected by firewalls that prevent external messaging. NAB states that if the Commission maintains the push notification approach, it must modify the rules to require that white space devices be capable of receiving notifications, including when they are not in operation or connected to the internet, and further that devices send the database a confirmation when they have received and complied with a push notification.

Petitioners and commenting parties disagree, however, on what they view as the appropriate approach going forward. Google requests that the Commission require white space devices to contact the database more frequently on two designated “fast polling” channels, an approach similar to the one that Google had made in response to the White Spaces NPRM that the Commission had previously rejected in the White Spaces Report and Order. Google again suggests that the Commission can protect licensed wireless microphones by identifying two channels on which unlicensed devices would be required to query the database every 20 minutes, while allowing white space devices operating on other channels to check the database only once daily. It argues that designating two “fast-polling” channels would minimize the burden of constant rechecking on unlicensed devices and database operators, while providing adequate protection for wireless microphones used during breaking news events. Microsoft agrees with Google's suggestion. Google and Microsoft point out that under the previous rules only two channels were available on short notice for exclusive wireless microphone use and argue that because licensed wireless microphone users have access to a dedicated four-megahertz channel in the 600 MHz duplex gap and the ability to reserve channels in advance of predictable events like games and concerts, designating two fast-polling channels would leave wireless microphone operators no worse off than before.

NAB requests that, in place of a push notification, the Commission require white space devices operating on any channel to contact the database every 20 minutes for an updated list of available channels, consistent with the Commission's proposal in the White Spaces NPRM. NAB argues that requiring white space devices to contact the database to check on channel availability more frequently, coupled with a requirement that devices cease operation if they cannot contact the database, is simpler, more efficient, more cost-effective, and will provide greater protection for licensed wireless microphones without requiring manufacturers to redesign devices. Shure agrees with NAB's suggestion.

Regarding Google's proposed solution of creating two fast-polling channels, NAB contends that Google misinterprets the intent of the Commission's push requirement and fails to reflect the policy balance the Commission attempted to strike. NAB states that limiting polling to two channels does not provide licensed operations with the same capability and protection as under the Commission's previous rules or the same capability and protection as the Commission sought to provide with the push requirement. NAB further argues that Google's claim that polling on all channels would drive up database costs and adversely decrease device battery life is specious because the entire TV white space database is less than a couple of hundred kilobytes of data. Google counters that the issue is the frequency of database requests, not the size of the database or the amount of information transmitted in each request, and that increasing the number of requests 72-fold per day per device will be a burden on the database as white space devices become more widely deployed.

Only Key Bridge, a database administrator, disagrees that implementing a push capability for white space devices and databases is impractical. It argues that the Commission's requirement to implement push notifications is sound and should be upheld, and that the Commission should reject Google's and NAB's objections that managing white space devices is too difficult to implement.

Push Notification Waiver Order. By late 2016, while the petitions on push notification remained pending, no manufacturers had yet obtained certification for equipment that was capable of meeting the push notification requirement. Absent Commission action, all approved white space devices would have been required to cease operation no later than December 23, 2016. Accordingly, on December 22, 2016, the Commission adopted the Push Notification Waiver Order temporarily waiving the push notification requirements. OET has periodically extended this waiver several times since then, most recently on September 30, 2021 when it extended this waiver through March 31, 2022, or until the Commission takes final action on the petitions for reconsideration of the push notification rules, whichever comes earlier. As a result of these successive waiver orders, the push notification requirement has never come into effect. The Commission notes that since issuance of these waiver orders, no party has submitted additional suggestions for Commission consideration relating to the pending petitions.

The record before the Commission shows that the push notification requirement is viewed as problematic by advocates for licensed wireless microphone and white space device operations alike. The Commission's goal all along has been to adopt rules that would serve to protect licensed wireless microphones quickly following registration while also minimizing the burden on white space device operations. Although the Commission believes that a push notification approach is technically achievable, and notes that it has required access systems with rapid response times that, like the push notification, are more complicated than a periodic database re-check in other bands (such as in the Citizens Broadband Radio Service), the Commission agrees with most commenters and concludes that there is no reason to require a push notification approach with respect to white space devices and the white space database system. As discussed below, replacing the push notification requirement with a more frequent re-check requirement will meet the requisite need for protecting a limited number of registered wireless microphones, and does so in a sufficiently expeditious fashion while not increasing the cost and complexity of white space devices and the database system by avoiding the need to redesign existing white space devices and the database system.

Therefore, on reconsideration, the Commission replaces the push notification requirement for fixed and Mode II personal/portable devices operating in the TV bands, except for narrowband devices (which are addressed in the Further Notice), with a simpler and more easily implementable approach, namely requiring that these fixed and personal/portable white space devices re-check the white space database at least once every hour, i.e., no longer than 60 minutes between re-checks. This frequent re-check requirement will protect licensed wireless microphone operations shortly following their database registration and will effectively protect registered licensed wireless microphone operations. The Commission adopts the requirement for white space devices to check the database every hour rather than every 20 minutes as it previously proposed because the Commission believe that this time-frame will be sufficient to accommodate licensed wireless microphones for unplanned events while reducing threefold the number of database rechecks each day. Reducing the number of database rechecks is important to ensure efficient white space device operation, reduce overhead on the networks, and maximize battery life for white space devices that are not connected to a reliable power source. To further reduce the impact on network traffic and white space devices, the Commission will not require devices that are in a sleep mode to re-check the database until they emerge from that state. Informed by the record before it, both by objections to the push notification requirement and by subsequent developments with regard to white space device operations, the Commission again seeks to reach the right balance between licensed wireless microphone users and white space device users that share use of unused spectrum in the TV bands. The Further Notice seeks comment on the database re-check interval that should apply to the narrowband IoT white space devices and the mobile white space devices that the Commission authorized in the recently adopted 2020 White Spaces Report and Order.

Although NAB and wireless microphone interests have requested requiring that white space devices re-check the database every 20 minutes, the Commission believes that requiring a re-check every 60 minutes will be sufficient and, by relying on a re-check approach instead of the more complex push notification approach, the Commission decision will serve to ensure the kind of reliable and effective protection those parties seek. The Commission also retains the requirement for database administrators to share Part 74 wireless microphone registration information with all other white space databases within ten minutes of a registration submission from a wireless microphone licensee. The Commission finds that these requirements will ensure that licensed wireless microphones used for electronic newsgathering and other unplanned uses can receive reliable and reasonably immediate protection from white space devices. In the Commission's considerations, it takes into account that, following completion of the Incentive Auction in 2017, licensed wireless microphone users have immediate and exclusive access to a 4-megahertz portion of the 600 MHz duplex gap and can also use a 2-megahertz portion of the 600 MHz guard band where white space devices are not permitted to operate, and that these wireless microphone operators potentially could make use of the 6-megahertz of the 600 MHz duplex gap available for unlicensed operations if white space devices are not operating at that location. Also, in many parts of the country the Commission would expect that there are likely to be one or more unused vacant TV channels available for wireless microphones that are not being used by white space devices.

The balanced approach that the Commission is adopting also does not impose an unreasonable burden on white space devices or database systems. Importantly, this approach is easily implementable. All currently approved white space devices already have the capability to re-check the white space databases at least once per day for a list of all available channels in their area, and updating software or firmware, or redesigning devices to increase the frequency of database checking is a fairly simple matter. The Commission also concludes that requiring fixed and personal portable white space devices, except for narrowband IoT devices to re-check on an hourly basis, rather than every 20 minutes as previously proposed, sufficiently balances concerns of the white space device proponents concerned about potential battery issues while meeting the Commission's goal of quickly ensuring licensed wireless microphone access to TV channels for late-breaking events. The Commission also recognizes the concerns of Google and Microsoft that frequently waking a device from a sleep mode or preventing a device from entering a sleep mode to perform more frequent database checks or receive push notifications, could needlessly reduce the operational time of a battery powered device. Accordingly, the Commission will not require white space devices in sleep mode to contact the database. The Commission also believes that the increase in database traffic by changing to an hourly re-check interval will not be problematic for the white space database as computing power readily available today should be more than sufficient to manage twenty-four queries per day per white space device.

The Commission notes, however, as the number of white space devices that contact the database increases, more frequent re-checks from a significantly larger number of devices could have an impact on the databases. The Commission continues to believe that a push notification system could in some implementations potentially be more efficient if the number of white space devices that must contact the database is large. Accordingly, while the Commission is not requiring implementation of a push notification system, it is retaining an option for white space device manufacturers and database administrators in the future to develop and implement such a system, as had been permitted by the rules in effect prior to the White Spaces Report and Order. However, the Commission is not specifying detailed technical requirements for a push notification system. The Commission encourages the industry, if it determines that the need develops, to collaborate on a standard for push notifications to white space devices and the Commission will revisit this issue as necessary to facilitate the development and deployment of a system developed by industry that provides at least the same degree of protection to protected services as the rules the Commission is adopting herein.

The Commission rejects the suggestion by Google and Microsoft that the Commission should limit more frequent database re-checking to white space devices operating on only two designated channels, a reprise of the approach that the Commission previously rejected in the White Spaces Report and Order in 2015. The Commission does so for the same reasons. Because only a few channels would be designated for “fast polling,” this approach is less flexible in meeting the needs of wireless microphone users for immediate access to spectrum because broadcasters covering breaking news events may have wireless microphones that operate on channels other than those designated for “fast polling.”

Conforming edits. Because the Commission is adopting a 60-minute re-check requirement for most fixed and personal/portable white space devices operating in the TV bands, it is also modifying certain other rules to conform its rules to this change. In particular, the Commission's changes involve modifying existing rule provisions related to the requirement for white space devices to access the database on a daily basis.

Under current rules, a white space device is required to re-check the database at least once per day to obtain a list of available channels for operation. The rules also provide that if a white space device subsequently is unable to make contact with a database, operation is permitted to continue until 11:59 p.m. on the following day, and if by then, it cannot contact the database, it must cease operation until such time as it re-establishes contact. The Commission proposed eliminating these provisions when it proposed in its 2014 White Spaces NPRM to adopt a 20-minute re-check requirement for addressing registered licensed wireless microphone operations. When, however, the Commission adopted the push notification requirement in the White Spaces Report and Order instead of a 20-minute re-check requirement, it concluded that it should not eliminate the then-existing daily re-check rule and instead would leave in place the requirement that white space devices re-check the database at least once per day to obtain the list of available TV channels at the location where the device operates.

Because the Commission now adopts a 60-minute re-check requirement for fixed and personal/portable white space devices operating in the TV bands, other than narrowband IoT devices (discussed in the Further Notice), the Commission modifies the rules that require white space devices to only re-check the database once a day to obtain a list of available channels, and that permit these devices to continue operating using a channel on that list until 11:59 p.m. the following day when it cannot contact a database on a given day. Maintaining these rules would be inappropriate since this would allow white space devices that cannot contact a database to operate for a significantly longer time period than the 60-minute re-check interval the Commission is requiring for protecting licensed wireless microphones operating in the TV bands. The Commission notes that in response to its proposal in the White Spaces NPRM to require that white space devices re-check the database every 20 minutes, several commenters agreed that the daily re-check provision in the rules, and permitting white space device to continue operating until 11:59 p.m. the following day when it is unable to contact the database, should be eliminated. Some commenters cautioned, though, that the Commission should permit a white space device to retry contacting the database one or more times before requiring that it discontinue operating because a white space device may occasionally be unable to make contact with the database within the designated polling interval. The Commission agrees. Accordingly, to ensure that white space devices may continue to operate during short network outages, the Commission will require fixed and personal/portable white space devices operating in the TV bands to cease operation after two failed scheduled checks, i.e., 120 minutes. This requirement will ensure that a white space device cannot continue to operate for an extended period of time on a channel that may be registered for use by a licensed wireless microphone in the event the white space device cannot contact a database to verify the list of available channels. This approach also is analogous to the current requirement that a white space device must cease operation after a time period no greater than two failed scheduled checks (a maximum of 48 hours for a re-check interval of 24 hours). The Commission retains the current re-check requirements for white space devices that operate outside of the TV bands as well as for narrowband and mobile devices, but seeks comment in the Further Notice on whether it should change the re-check requirements for those devices.

Because the Commission is reducing the length of time that white space devices may continue to operate when they cannot contact the database, it correspondingly reduces the time interval over which white space devices must adjust their channel usage in accordance with licensed wireless microphone scheduling information provided by the database. The Commission therefore requires that the white space database provide registered licensed wireless microphones scheduling information for the two hour time period after the white space device contacts the database. The white space device must adjust its use of channels in accordance with this scheduling information, i.e., it must cease using the channel during the times when a licensed wireless microphone is scheduled to use it. The Commission selects a time period of two hours because that is the maximum time that a white space device may operate if it is unable to contact the database. The Commission does not require white space devices operating outside the TV bands, i.e., in the 600 MHz service bands, the upper 6-megahertz portion of the 600 MHz duplex gap and on channel 37, to adjust their use of channels in accordance with scheduling information provided by the white space database because wireless microphones do not operate on those frequencies on a licensed basis and thus there will be no scheduling information for the database to provide.

The Commission modifies Section 15.711 to implement the changes to the database re-check interval discussed above, and to streamline the applicable rules. Specifically, it revises paragraph (i) to remove the push notification requirement and replaces it with an option for manufacturers to develop a push notification system as the pre-2015 rules allowed. The Commission moves the requirement for white space databases to share licensed wireless microphone registrations with other white space databases within ten minutes from Section 15.711(i)(1) to Section 15.715(l). The Commission revises Section 15.711(h) to place the database re-check requirements for fixed and Mode II personal/portable devices in a single paragraph, rather than in separate paragraphs as under the current rules.

Transition. The Commission also adopts provisions establishing the transition requirements for white space device compliance with the newly established re-check requirements as set forth herein. The Commission notes that increasing the frequency of database checks can generally be done by reprogramming a white space device's software or firmware, thus enabling the new requirement to be met relatively quickly. Accordingly, the Commission requires that devices for which a certification application is approved by a Telecommunication Certification Body (TCB) beginning six months after the effective date of the rules must comply with the hourly database re-check requirement that replaces the daily re-check requirement. The Commission also requires that within six months after the effective date of the rules, all white space devices imported into or marketed within the United States comply with these requirements, regardless of when they were certified. Because white space devices already deployed generally should be able to download a software upgrade, the Commission also requires that previously approved fixed white space devices that can be re-programmed comply with the faster re-check requirement six months after the effective date of the rules. Finally, the Commission modifies Section 15.37(j) to specify these transition dates for the faster database re-check interval in place of the transition dates for the push notification requirement that the Commission eliminates.

In this Order, the Commission denies NAB's petition for reconsideration of OET's 2018 action designating Nominet UK as a white space database administrator. OET referred this petition to the Commission for action pursuant to Section 1.106(a) of the rules. Nominet addressed concerns raised by NAB shortly after it filed its petition. The Commission notes that in 2020 Nominet's database was subsequently transferred to RED Technologies, which currently serves as a white spaces database administrator.

Background. Pursuant to the white spaces rules, the Commission can designate one or more entities to administer a white space database system that provides lists of available channels to fixed, mobile and Mode II personal/portable white space devices. On November 16, 2017, Nominet filed a proposal with OET seeking to administer a white space database. After seeking comment on Nominet's proposal, on June 11, 2018, the Commission's OET designated Nominet as a white space database administrator, subject to certain conditions, including that Nominet's database would be subject to a 45-day public trial period before it would be made available for actual use by white space devices to allow interested parties an opportunity to check that the database is providing accurate results.

Following the 45-day public trial period, on September 19, 2018, OET gave final approval for Nominet to operate its white space database system. OET found that Nominet's white space database system was compliant with the Commission's rules and ready for operation, based on its own examination and testing of the Nominet database system and on the results of the public trial, including comments submitted to Nominet during and after the trial and Nominet's responses to those comments. As OET noted, during the trial period Nominet indicated that it successfully resolved three issues raised by NAB concerning Nominet's database system, including concerns about its channel availability calculator.

On October 19, 2018, NAB filed a petition for reconsideration of OET's designation of Nominet as a white space database administrator. NAB states that its review of Nominet's database indicated that it contains incorrect channel information for hundreds of TV stations and that it provides at least one incorrect available channel at more than three-quarters of twenty-six locations analyzed. NAB states that the Nominet database is extracting the wrong information from the Commission database and that its approval should be revoked until Nominet addresses these issues. NAB further argues that OET should rework its internal processes and policies for approval of white space database administrators to ensure that sufficient testing is performed to detect errors, including testing with actual white space devices.

Nominet responded to NAB's petition by agreeing that NAB had identified discrepancies, but asserts that those discrepancies arose due to difficulties experienced when importing TV station data from the Commission's new Licensing and Management System (LMS), which had replaced the Commission's Consolidated Database System (CDBS). Nominet explains that it was the first database administrator required to use the LMS, and that all published material by the FCC regarding how to apply the white space rules to TV data pertains to CDBS, which had been used by all previous database administrators. Nominet concludes by stating it promptly addressed NAB's concerns, and that the changes required to correct the import procedure were applied on October 24, 2018, only days after NAB filed its petition for reconsideration on October 19, 2018. NAB did not respond directly to Nominet's response or identify specific ongoing errors that needed remedying.

The Commission notes that, subsequent to the designation of Nominet as a white space database administrator, and in response to a petition submitted by NAB in 2015, the Commission took steps in the 2019 White Spaces Order to improve the accuracy and reliability of the fixed white space device data in the white space databases and ensure that the potential for these devices to cause harmful interference to protected services is minimized. Specifically, the Commission required all fixed white space devices to incorporate a geo-location capability such as GPS and eliminated the option that permitted the geographic coordinates of a fixed device to be determined by a professional installer. The Commission also adopted rules that allow the use of external geo-location sources by a fixed white space device when the device is used at a location where its internal geo-location capability does not function, such as deep inside a building. In addition, the Commission required fixed white space devices to re-check their geographic coordinates at least once a day and report the coordinates to the white space database.

Discussion. The Commission denies the NAB petition for reconsideration of OET's designation of Nominet as a white space database administrator. The Commission finds that the database errors discovered by NAB, which were immediately corrected by Nominet, are not grounds to revoke the designation of Nominet as a white space database administrator. As Nominet notes in its response to NAB's petition, Nominet was the first white space database administrator required to obtain TV station data from the Commission's new LMS instead of the older, well-understood CDBS. The LMS has a more sophisticated data structure than the CDBS, thus requiring new and more complex algorithms than those used by other white space database administrators to extract the proper TV station facility information (“extraction logic”) for input into the white space database. OET worked closely with Nominet to test the new extraction logic using Nominet's trial database to ensure that it functioned correctly. It appears that Nominet failed to include all of the updates made to the test database reviewed by OET in the final version that it made available for commercial use. As noted above, Nominet took action to remedy specific concerns raised by NAB. While the Commission is denying NAB's petition, the Commission underscores that it appreciates NAB bringing these concerns to the attention of the Commission and Nominet so that the errors could be remedied. However, the Commission does not believe that these errors show any fundamental deficiency on the part of the database administrator but appear to be the result of issues related to the Commission's transition from the CDBS to the LMS combined with an inadvertent failure by Nominet to include all of the latest updates in its final version of the database. Nominet promptly recognized its ongoing responsibility for remedying concerns brought to its attention. As noted above, in 2020, Nominet transferred its database to RED Technology, and NAB did not indicate any concerns about this transfer.

The Commission takes seriously the integrity of the white space database since that is the primary means to prevent white space devices from causing harmful interference to TV reception and other protected services. As noted above, the Commission at the suggestion of NAB took steps to increase the integrity of the white space database subsequent to the 2018 designation of Nominet as a white space database administrator. The changes adopted in the 2019 White Spaces Order will ensure that fixed white space devices provide accurate coordinates to the white space database by requiring the incorporation of a geo-location mechanism in all fixed devices, as well as periodic re-checking of the coordinates by the white space device. The 2019 White Spaces Order also clarifies the registration requirements for fixed white space devices. These changes reduce the likelihood that fixed devices will report incorrect coordinates to the database, which could result in harmful interference to TV reception and protected services, as well as ensure the database contains accurate registration information that could be used to help track down any devices that cause harmful interference. OET will continue to work with any white space database administrator as well as any other interested party to ensure that the database provides accurate lists of available channels to white space devices.

Accordingly, it is ordered that, pursuant to the authority contained in Sections 4(i), 302, 303(b), (c), (e), (f), (r), and 307 of the Communications Act of 1934, as amended, and sections 6403 and 6407 of the Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112-96, 126 Stat. 156, 47 U.S.C. 154(i), 302, 303(b), (c), (e), (f), (r), 307, 1452, 1454, this Second Order on Reconsideration, Further Notice of Proposed Rulemaking, and Order is hereby adopted.

It is further ordered that the petitions for reconsiderations filed by Google, Inc. and the National Association of Broadcasters on December 23, 2015 in ET Docket No. 14-165 are granted in part and denied in part to the extent described herein.

It is further ordered that Part 15 of the Commission's rules is amended as specified in Appendix A of the Second Order on Reconsideration, Further Notice of Proposed Rulemaking, and Order, and such rule amendments will become effective 30 days after the date of publication in the Federal Register .

It is further ordered that the waiver of Sections 15.37(j) and 15.711(i) of the Commission's rules, 47 CFR 15.37(j) and 15.711(i), adopted by the Commission on September 30, 2021, DA 21-349, is extended until the effective date of the rules adopted herein.

It is further ordered that the petition for reconsideration of Nominet UK's designation as a white space database administrator filed by the National Association of Broadcasters on October 19, 2018 in ET Docket No. 04-186 is hereby denied.

It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the Second Order on Reconsideration, Further Notice of Proposed Rulemaking, and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the U.S. Small Business Administration.

For the reasons set forth in the preamble, the Federal Communications Commission amends 47 CFR part 15 as follows:

This document announces that, on March 1, 2022, OMB approved, for a period of three years, the information collection requirements adopted on January 18, 2022, in the Mandatory Data Collection Order, DA 22-52, published March 23, 2022 at 87 FR 16560. The OMB Control Number is 3060-1300. The Commission publishes this document as an announcement of the effective date of the requirements for the Mandatory Data Collection.

In the Mandatory Data Collection Order, WCB/OEA directed that requirements for the Mandatory Data Collection adopted in that Order would become effective on the date specified in a document published in the Federal Register announcing OMB approval. We note that inmate calling services (ICS) providers' responses to the data collection are due no later than June 30, 2022.

If you have any comments on the Mandatory Data Collection, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, 45 L Street NE, Washington, DC 20002. Please include the OMB Control Number, 3060-1300, in your correspondence. The Commission will also accept your comments via email at PRA@fcc.gov.

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on March 1, 2022 for the information collection requirements contained in WCB/OEA's Mandatory Data Collection Order. Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1300.

The foregoing notification is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total data collection burdens and costs for the respondents are as follows:

OMB Control Number: 3060-1300.

OMB Approval Date: March 1, 2022.

Expiration Date: March 31, 2025.

Title: Inmate Calling Service (ICS) 2022 One-time Data Collection, WC Docket No. 12-375, FCC 21-60.

Form Numbers: FCC Form 2302(a) and FCC Form 2302(b).

Respondents: Business or other for profit.

Number of Respondents and Responses: 20 respondents; 20 responses.

Estimated Time per Response: 355 hours on average.

Frequency of Response: One-time reporting requirement.

Total Annual Burden: 7,100 hours.

Total Annual Cost: No cost.

Obligation To Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in sections 1, 4(i)-(j), 201(b), 218, 220, 225, 255, 276, 403, and 617 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i)-(j), 201(b), 218, 220, 225, 255, 276, 403, and 617.

Privacy Act Impact Assessment: No Impact(s).

Nature and Extent of Confidentiality: The Commission anticipates treating as presumptively confidential any particular information identified as proprietary by calling services providers.

Needs and Uses: Section 201 of the Communications Act of 1934, as amended (Act), 47 U.SC. 201, requires that calling services providers' interstate and international rates and practices be just and reasonable. Section 276 of the Act, 47 U.S.C. 276, requires that payphone service providers (including calling services providers) be fairly compensated for completed calls.

On May 24, 2021, the Commission released the Third Report and Order (86 FR 40682, July 28, 2021), Order on Reconsideration (86 FR 40340, July 28, 2021), and Fifth Further Notice of Proposed Rulemaking (86 FR 40416, July 28, 2021), WC Docket No. 12-375, FCC 21-60 ( 2021 ICS Order ), in which it continued its reform of the calling services marketplace. In that Order, the Commission, among other actions, delegated authority to WCB/OEA to implement a data collection for ICS providers. Pursuant to that delegation, WCB/OEA adopted the Mandatory Data Collection Order, including the instructions, reporting template, and certification form for the data collection, on January 18, 2022.

NHTSA sets  1 and enforces  2 corporate average fuel economy (CAFE) standards for the United States light-duty automobile fleet, and in doing so, assesses civil penalties against manufacturers that violate applicable standards and are unable to make up the shortfall with credits. 3 The civil penalty amount for CAFE violations was originally set by statute in 1975, and beginning in 1997, included a rate of $5.50 per each tenth of a mile per gallon (0.1) that a manufacturer's CAFE performance falls short of its compliance obligation. This shortfall amount is then multiplied by the number of vehicles in that manufacturer's fleet. 4 The basic equation for calculating a manufacturer's civil penalty amount, before accounting for credits, is as follows:

Starting with Model Year 2011, the Energy Independence and Security Act of 2007 (EISA) provided for credit transfers among a manufacturer's various fleets. 6 The law also provided for trading between vehicle manufacturers, which has allowed vehicle manufacturers the opportunity to acquire credits from competitors rather than paying civil penalties for violations. Manufacturers can choose to carry back credits to apply to any of three model years before they are earned or carry them forward to apply to any of the five model years after they are earned.

In complement to NHTSA's regulation of fuel economy, the Environmental Protection Agency (EPA) regulates the emissions of light-duty vehicles. These regulations include standards to regulate greenhouse gas emissions from the light-duty fleet. The Clean Air Act requires EPA to set greenhouse gas (GHG) emissions standards from light-duty vehicles since EPA has made an “endangerment finding” that greenhouse gases “cause[s] or contribute[s] to air pollution which may reasonably be anticipated to endanger public health or welfare.”  7 Although NHTSA and EPA have different roles and independent enforcement and compliance obligations, and operate under different statutory authority, the agencies work together to achieve the goals of their respective statutes, and their light-duty vehicle fuel economy rulemakings are harmonized to the extent possible to work in tandem. However, the CAFE program is subject to various statutory requirements not applicable to the EPA GHG program. One such requirement, for example, requires automakers to meet a separate average fleet requirement for automobiles that are manufactured domestically. 8 The Clean Air Act does not include a similar requirement for EPA's GHG standards.

On November 2, 2015, the Federal Civil Penalties Inflation Adjustment Act Improvements Act (2015 Act), Public Law 114-74, Section 701, was signed into law. The 2015 Act required Federal agencies to promulgate an interim final rule to make an initial “catch-up” adjustment to the civil monetary penalties they administer, and then to make subsequent annual adjustments. The 2015 Act limited the initial adjustment to 150 percent of the then-current penalty.

In a February 24, 2016 memorandum, the Director of the Office of Management and Budget (OMB) provided initial guidance to all Federal agencies on how to calculate the initial adjustment required by the 2015 Act. 9 The initial “catch-up” adjustment was based on the change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the year the penalty amount was established or last adjusted by Congress and the October 2015 CPI-U. The February 24, 2016 memorandum contained a table with a multiplier for the change in CPI-U from the year the penalty was established or last adjusted to 2015. To arrive at the adjusted penalty, the agency multiplied the penalty amount when it was established or last adjusted by Congress, excluding adjustments under a prior adjustment statute, by the multiplier for the increase in CPI-U from the year the penalty was established or adjusted. Ensuing guidance from OMB identifies the appropriate multiplier for agencies to use to calculate the subsequent annual adjustments. 10

On July 5, 2016, NHTSA published an interim final rule, adopting the adjustments required by the statute for all civil penalties under its administration, following the procedure and the formula in the 2015 Act. One of the adjustments NHTSA made at the time was raising the civil penalty rate for CAFE violations from $5.50 to $14. 11 NHTSA also indicated in that interim final rule that the Secretary's statutory authority under the Energy Policy and Conservation Act (EPCA) to establish an additional increase for such violations would similarly need to be adjusted from the statutory cap of $10 to $25, but did not codify this change in the regulatory text. In the preamble discussion, NHTSA provided detailed discussion of the authority granted in Public Law 95-619, 402, 92 Stat. 3255 (Nov. 9, 1978), which allowed the Secretary of Transportation to establish a new civil penalty for each .1 of a mile a gallon by which the applicable average fuel economy standard under EPCA exceeds the average fuel economy for automobiles to which the standard applies manufactured by the manufacturer during the model year. NHTSA explained that these amendments, codified in 49 U.S.C. 32912(c), state that the new civil penalty cannot be more than $10. NHTSA further explained that applying the multiplier for the increase in CPI-U for 1978 in Table A of the February 24, 2016 memorandum (3.54453) to the $10 maximum penalty the Secretary is permitted to establish under 49 U.S.C. 32912(c) results in an adjusted civil penalty of $35. NHTSA then explained that because this calculation would result in an increase of greater than 150 percent, the adjusted maximum civil penalty that the Secretary is permitted to establish under 49 U.S.C. 32912(c) is $25 (current maximum penalty $10 × 2.5). NHTSA concluded that because the new maximum penalty that the Secretary is permitted to establish under 49 U.S.C. 32912(c) is $25, the new adjusted civil penalty in 49 CFR 578.6(h)(2) of $14 does not exceed the maximum penalty that the Secretary is permitted to impose. NHTSA addresses the adjustments that occurred to the statutory cap since that time and codifies the adjusted cap in this final rule. That initial interim final rule became effective on August 4, 2016.

On August 1, 2016, the then-Alliance of Automobile Manufacturers and the Association of Global Automakers (since combined to form the Alliance for Automotive Innovation) jointly petitioned NHTSA for reconsideration of the CAFE penalty provisions issued in the interim final rule. 12 The Alliance and Global joint petition raised concerns with the impact that the increased penalty rate would have on CAFE compliance costs, which they estimated to be at least $1 billion annually. Specifically, the petition identified several issues, including retroactivity. The petitioners were concerned that applying the penalty increase associated with model years that had already been completed or for which a company's compliance plan had already been “set” was a retroactive application of the adjustment.

In response to the joint petition, NHTSA issued a final rule on December 28, 2016. 13 In that rule, NHTSA agreed that raising the penalty rate for model years already fully complete at the time the 2015 Act was enacted would be inappropriate, given that courts generally disfavor the retroactive application of statutes, and that applying penalties to model years that were already completed could not deter non-compliance, incentivize compliance, or lead to any improvements in fuel economy. NHTSA also agreed that raising the rate for model years for which product changes were infeasible due to lack of lead time from the enactment of the 2015 Act did not seem consistent with Congress's intent that the CAFE program be responsive to consumer demand. Accordingly, NHTSA stated that it would not apply the adjusted penalty rate of $14 (plus any other required adjustments that occurred or may occur) until Model Year 2019, as the agency believed that 2019 would be the first year after the 2015 Act in which product changes could reasonably be made in response to the higher penalty rate. This final rule had an effective date of January 27, 2017.

Beginning in January 2017, NHTSA took a series of actions to delay the effective date of the December 2016 final rule, ultimately leading to a rule announcing that the effective date would be delayed indefinitely. 14 In April 2018, the United States Court of Appeals for the Second Circuit vacated NHTSA's indefinite delay of the rule's effective date, stating that the December 2016 rule was in force. 15

In July 2019, NHTSA finalized a rule determining, in part, that the 2015 Act did not apply to the CAFE civil penalty rate. On September 9, 2019, the Institute for Policy Integrity at New York University School of Law (IPI) submitted a petition for reconsideration of NHTSA's July 2019 final rule. IPI argued that the rule was unreasonable and not in the public interest because it did not properly account for the associated costs and benefits. Additionally, IPI challenged NHTSA's statutory interpretations.

On August 31, 2020, the United States Court of Appeals for the Second Circuit vacated the July 2019 rule and ruled again that the December 2016 rule was in force. 16 The Second Circuit denied panel rehearing on November 2, 2020. NHTSA did not issue a decision on the IPI petition prior to the Second Circuit's decision vacating the rule.

Following the Second Circuit's decision, on October 2, 2020, NHTSA received a petition for rulemaking from the Alliance for Automotive Innovation (Auto Innovators) requesting that the adjustment to $14 not be applied until Model Year 2022. 17 According to the Auto Innovators' petition, “Model Years 2019 and 2020 are effectively lapsed now,” and “[m]anufacturers are unable to change MY 2021 plans at this point.” The Auto Innovators argued that, as in the December 2016 rule, applying the increased penalty to any violations that cannot practically be remedied does not serve the statutory purposes of deterring prohibited conduct or incentivizing favored conduct. According to the Auto Innovators, doing so would effectively be punishing violators retroactively.

In addition to relying on the reasoning of the December 2016 rule as it applied to the increase based on the timing of the enactment of the 2015 Act, the Auto Innovators' petition noted, but did not provide detailed evidence of, the significant economic impact suffered by the industry due to COVID-19. Accordingly, the Auto Innovators' petition also cited the now-revoked Executive Order 13924, 18 requiring Federal agencies to take appropriate action—consistent with applicable law—to combat the economic emergency caused by COVID-19. Several individual vehicle manufacturers submitted supplemental information to NHTSA further articulating the negative economic position they were in due to the COVID-19 public health emergency and the potential and significant adverse economic consequences of the increased civil penalty rate.

After considering the issues raised, NHTSA granted the Auto Innovators' petition and promulgated an interim final rule providing that the increase  19 will apply beginning with Model Year 2022. The interim final rule stated that applying the increased civil penalty rate to vehicles in Model Years 2019, 2020, and 2021 would not result in additional fuel savings and would impose higher penalties retroactively because those model years were already completed, or, for Model Year 2021, production plans were set prior to the Second Circuit's decision striking down the 2019 rule. The interim final rule relied in large part on the reasoning in the December 2016 final rule, though it did not discuss the extent to which the four years between the two rules should affect that reasoning. Additionally, the interim final rule addressed the negative economic impact on the automotive sector caused by the global outbreak of COVID-19. 20 That interim final rule amended the relevant regulatory text accordingly—effective immediately and without having afforded prior notice or the ability to comment in advance—and requested comment within ten days. The interim final rule also noted that IPI's petition was moot, and, to the extent it was not moot, NHTSA denied it.

The interim final rule is currently the subject of legal challenges that have been consolidated in the Second Circuit. 21

Before NHTSA's interim final rule was published but after the agency had announced, through the publication of the Fall 2020 Unified Agenda of Regulatory and Deregulatory Actions, that it had initiated a rulemaking in response to the Auto Innovators' petition, NHTSA received two letters regarding the rulemaking: One jointly from the State of New York, the Natural Resources Defense Council, and the Sierra Club, and one from Tesla. 22 These letters raised concerns with NHTSA's rulemaking, particularly with the entities' inability to review or comment on the Auto Innovators' petition for rulemaking in advance. NHTSA did not respond to these letters prior to the publication of the interim final rule, but NHTSA included both letters in the docket when the interim final rule was published and noted that they would “be treated as comments for appropriate consideration.”  23

After the interim final rule was published, NHTSA received eight more substantive comments. 24 NHTSA received comments from:

• The Attorneys General of California, New York, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Jersey, Oregon, Pennsylvania, Rhode Island, Washington, and Vermont;  25

• American Council for an Energy-Efficient Economy, Center for Auto Safety, Center for Biological Diversity, Consumer Federation of America, Consumer Reports, The Ecology Center (Michigan), Environmental Law and Policy Center, Interfaith Power & Light, Sierra Club, Union of Concerned Scientists;  26

• Natural Resources Defense Council and Sierra Club;  27

• The Institute for Policy Integrity at New York University School of Law;  28

• Tesla;  29

• The Alliance for Automotive Innovation;  30

• The National Automobile Dealers Association (NADA);  31 and

• An anonymous individual. 32

Most of the comments opposed the interim final rule, raising serious procedural, legal, and substantive concerns. In general, these comments argued that NHTSA did not have the authority to delay the application of the adjusted rate beyond Model Year 2019 and that, regardless, NHTSA would have to do so through notice-and-comment, not by an interim final rule that was effective immediately without prior notice and without the opportunity to comment in advance. In supporting these arguments, the commenters relied, in part, upon the two earlier decisions by the Second Circuit.

Most of these comments also challenged the interim final rule as arbitrary and capricious on multiple grounds. For example, the comments discussed that applying the increased rate before Model Year 2022 would not be retroactive because the increased rate was originally applied in 2016 when it was still prospective—both in the initial interim final rule in July 2016 and in the rule in response to the initial petition for reconsideration in December 2016—and NHTSA's subsequent actions that were invalidated by the Second Circuit did not change that fact. In these commenters' view, manufacturers have been on notice of the increase since well before Model Year 2019, and any reliance to the contrary was undue. These comments argued that this was particularly true given the rulings from the Second Circuit litigation, in which many of these commenters and the Auto Innovators were involved, with the predecessor organizations having intervened and participated in this litigation. The comments further argued that delaying the application of the increased rate would affect future compliance because manufacturers may be incentivized to hold credits for model years when the higher rate will apply. That is, a credit earned at the $5.50 rate is likely to be more valuable—either for the manufacturer's own use or to sell to another manufacturer—in a model year when the rate increases to at least $14 (although credits must be used within a limited number of years before they expire). The comments also argued that the interim final rule improperly analyzed the economic effects of the COVID-19 pandemic, for example, by not accounting for any positive economic data and disregarding that some of the relevant conduct occurred before the pandemic.

These comments also argued that the interim final rule violated the National Environmental Policy Act of 1969 (NEPA), by, for example, not taking a hard look at the environmental consequences of the action and ignoring the environmental harms that may result from delaying the penalty increase. Lastly, in response to NHTSA's request for comment about whether the adjustment should be delayed further until Model Year 2023, these comments opposed any additional delay. Some of these comments also expressed concern with the short ten-day comment period provided by the interim final rule—and only after the rule was already effective without any opportunity to comment beforehand.

Two of the comments supported the interim final rule. The Auto Innovators reiterated the reasoning set forth in its petition, which NHTSA granted in the interim final rule. According to the Auto Innovators, the interim final rule was consistent with NHTSA's December 2016 rule; appropriately accounted for the industry's production and design processes, including the unforeseen challenges of the COVID-19 public health emergency; and fairly implemented the Second Circuit's decision. The Auto Innovators also noted that Model Year 2022 vehicles could have begun being produced as early as January 2, 2021—about two weeks before the interim final rule was published—but it believes NHTSA was reasonable to make the adjustment applicable beginning in Model Year 2022, declining to request a further delay in the adjustment to Model Year 2023. NADA supported the Auto Innovators' comment, adding that increased CAFE civil penalties before Model Year 2022 would lead to higher vehicle prices for consumers or manufacturer shifts in available offerings, without any associated environmental or safety benefits.

On January 20, 2021—while the post-promulgation comment period for the interim final rule was still open—the President issued Executive Order 13990, entitled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” E.O. 13990 directs the heads of all agencies to immediately review all existing regulations, orders, guidance documents, policies, and any other similar agency actions promulgated, issued, or adopted between January 20, 2017, and January 20, 2021, that are, or may be inconsistent with, or present obstacles to, the policy set forth in E.O. 13990: A policy “to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.”  33 The Secretary of Transportation expressly identified the January 14, 2021 CAFE civil penalties interim final rule as subject to E.O. 13990. 34

In accord with E.O. 13990 and the Secretary's determination, and in light of the significant concerns raised by the commenters after the interim final rule was issued, NHTSA began reviewing and reconsidering the January 14, 2021 interim final rule. Specifically, NHTSA considered repealing the interim final rule and reverting to the December 2016 final rule that would apply the adjusted rate beginning with Model Year 2019—the rule that the Second Circuit has said twice is “now in force.”  35

NHTSA believed that an additional period of public comment would aid the agency in its reexamination of the issues involved in the interim final rule. Considering the importance of this rulemaking and the short comment period—ten days—previously provided to interested parties, NHTSA published a supplemental notice of proposed rulemaking (SNPRM) on August 20, 2021, to provide the public with an appropriate amount of time to comment and to enable NHTSA to more fully review and consider the issues. 36 In doing so, NHTSA expressly requested comment on whether it should proceed to a final rule that repeals the interim final rule and reverts to the December 2016 final rule, restoring the application of the increased CAFE civil penalty rate beginning with Model Year 2019. NHTSA also accepted comments on whether the adjustment should apply beginning with a model year later than Model Year 2019, with commenters arguing for such a position asked to explain how it is consistent with the 2015 Act and the Second Circuit's decisions. NHTSA also noted it would consider comments already submitted in response to the interim final rule as part of its review and the anticipated promulgation of a final rule following the comment period. The comment period for the SNPRM closed on September 20, 2021.

In addition to the comments received in response to the interim final rule, 37 NHTSA received seventeen substantive comments in response to the SNPRM. 38 NHTSA received comments from:

• The Attorneys General of California, New York, Connecticut, Delaware, Illinois, Iowa, Maryland, Massachusetts, New Jersey, Oregon, Pennsylvania, Washington, and Vermont;  39

• Natural Resources Defense Council and Sierra Club;  40

• Tesla;  41

• The Institute for Policy Integrity at New York University School of Law;  42

• The Alliance for Automotive Innovation;  43

• Stellantis (FCA US LLC);  44

• Jaguar Land Rover North America LLC;  45

• Ferrari;  46

• The National Automobile Dealers Association (NADA);  47 and

• Private citizens and anonymous individuals. 48

The majority of comments submitted in response to the interim final rule and to the supplemental notice of proposed rulemaking support returning to the December 2016 final rule. These comments primarily argue that NHTSA lacked the statutory authority to issue the January 2021 interim final rule. These comments also generally argue that retroactivity was not an issue: Automakers were already aware as of December 2016 that the adjustment would apply in Model Year 2019 and beyond. It was not until Model Year 2019 was already nearly complete that NHTSA issued a final rule changing that, which the Second Circuit subsequently determined was legally invalid. The predecessor organizations of Auto Innovators participated in that litigation as intervenors and were well aware of the possibility that the Second Circuit would restore the applicability of the adjusted rate beginning with Model Year 2019. In fact, the Second Circuit decision expressly stated that the court understood the effect of its decisions to be that the increased penalty amount was in effect. Accordingly, these commenters argue that it would be appropriate for NHTSA to revisit the interim final rule's characterization of the application of the adjustment beginning with Model Year 2019 as “retroactive.” Moreover, these commenters raised concerns regarding the procedures that the agency used in issuing the interim final rule, which did not proceed through a more typical notice-and-comment process and which made the rule effective immediately upon publication. In addition, these commenters urged NHTSA to further review and consider the Second Circuit's prior decisions and, in light of the ongoing litigation, assess the legal risk of leaving the interim final rule in place, as the interim final rule was based on an assertion of discretion that is in conflict with the 2015 Act and the Second Circuit's decisions.

The comments in favor of retaining the interim final rule largely re-raised the reasoning of the December 2016 final rule, noting that the affected model years have already lapsed or largely lapsed, and design and production cycles for the affected model years were already locked in based on the unadjusted CAFE civil penalty rate. These comments also described the economic harm that applying the adjusted rate would have on the industry, which is already facing difficult economic conditions due to the effects of COVID-19, microchip shortages, and other supply chain issues.

As a threshold matter and as NHTSA has explained before, NHTSA, like all agencies, must continually consider a range of possible statutory interpretations and reassess their validity, including in response to changed circumstances or when questions arise regarding the legality of the prior action—particularly when a Federal court already has ruled twice on related issues. Not only is it an agency's responsibility to reevaluate its interpretations to ensure they are legally sound, an agency is allowed to change its interpretations, within reason, based on evolving notions about the appropriate balance of varying policy considerations. NHTSA is permitted to change its views based upon its experience and expertise, provided that the requirements of the Administrative Procedure Act (APA) and other governing statutes are met. To do so, an agency must show that it is aware it is changing its position and must provide a reasoned explanation for the change. 49

In the SNPRM, NHTSA expressly acknowledged that it was reconsidering the January 2021 interim final rule as a result of E.O. 13990, the Secretary's related determination, the significant concerns raised by commenters in the earlier rulemakings on this issue, further review and consideration of the Second Circuit's prior decisions, and in light of the pending litigation. NHTSA provided a reasoned explanation for its tentative decision in the SNPRM that it does not have discretion over when the required adjustment should begin to take effect, and after careful consideration of the relevant information, finalizes and elaborates on that decision here. In particular, NHTSA concludes that the interim final rule was procedurally flawed and did not appropriately carry out the clear command from the Second Circuit's decision that struck down the 2019 final rule.

As explained further below, NHTSA does not believe that “its prior policy has engendered serious reliance interests that must be taken into account,” which may require the agency to “provide a more detailed justification than what would suffice for a new policy created on a blank slate.”  50 Nonetheless, NHTSA has provided “a more detailed justification” in the following discussion. Moreover, the administrative and public process leading to this rule has been more thorough than the process leading to the interim final rule. NHTSA undertook extensive agency review, issued an SNPRM, gave the public an opportunity to comment in advance, and responded to those comments in detail here. By contrast, NHTSA promulgated the interim final rule without notice, with only a brief window for public comments, and without the opportunity to comment in advance.

NHTSA promulgated the January 2021 interim final rule without providing notice and without providing the opportunity to comment in advance. NHTSA also made the interim final rule effective immediately and only provided ten days after publication for comments. The interim final rule did not explain why the post-promulgation comment period was so short, even though NHTSA could have provided more time for comments given that the rule was already in effect.

Upon review, NHTSA agrees with the commenters that argue that these procedural issues alone merit repeal of the interim final rule. The Second Circuit previously held that changing the effective date of the rule that was in force at the time would generally require notice-and-comment. 51 For the January 2021 interim final rule, NHTSA concluded that good cause existed for immediate implementation of the rule without prior notice and comment on the grounds that it was impracticable to delay publication of the interim final rule for notice and comment, public comment was unnecessary, and the agency's action was in the public interest. However, as many of the affected manufacturers and their trade association have noted for other purposes, the affected model years were either completed or already underway at the time of the interim final rule. There was no pressing emergency that would have made it impracticable to provide notice and request comment in advance.

Public comment was also necessary. While the 2015 Act provides that the first adjustment shall be made through an interim final rulemaking without public comment, NHTSA's first adjustment was made in an interim final rule in July 2016 with a subsequent final rule issued in December 2016. The January 2021 interim final rule was issued years later—after multiple rounds of requests for comments in other notices on this same issue.

Moreover, NHTSA should have sought comment given the public interest. NHTSA was aware of the public interest in this issue, having received multiple rounds of comments from a variety of entities and having proceeded through two rounds of litigation. While the automotive industry argued in its petition that it has faced unprecedented economic challenges arising from the COVID-19 national emergency, NHTSA did not consider any countervailing evidence, discussed further below. Additionally, any economic harm—which would only be caused by manufacturers' failures to comply with the applicable CAFE standards—does not outweigh the public interest in commenting on the change in advance. Indeed, affording the public the opportunity to comment on the petition in advance would have given NHTSA additional insight into the impact of the COVID-19 national emergency on the industry.

Because NHTSA lacked good cause, the interim final rule also should not have gone into effect immediately upon publication in the Federal Register under 5 U.S.C. 553(d)(3) and 5 U.S.C. 808(2). 52

In the interim final rule, NHTSA described its authority to issue the rule as based on its specific statutory authority to administer the CAFE program and its general statutory authority to do so efficiently and in the public interest. 53 NHTSA also explained that the procedure established in the Energy Policy and Conservation Act (EPCA)  54 to increase the CAFE civil penalty rate implies that NHTSA has the broader authority to oversee the administration and enforcement of the rate more generally. 55 NHTSA also noted that for the CAFE civil penalty to be covered by the 2015 Act, NHTSA must have the authority to assess or enforce it, and thus oversee and administer it as appropriate. 56

For the reasons explained by the Second Circuit and the comments, NHTSA did not have statutory authority to promulgate the interim final rule. 57 As the Second Circuit noted, “an agency may only act within the authority granted to it by statute.”  58 Neither the 2015 Act, which applied to all Federal agencies, nor EPCA authorized NHTSA to issue an interim final rule delaying the application of the previously-issued adjustment. 59 To the contrary, the Second Circuit has concluded that the 2015 Act contains a “highly circumscribed schedule for penalty increases” that confers “no discretion to the agencies regarding the timing of the adjustments.”  60

Further, as the Second Circuit made clear, the procedure in EPCA that allows NHTSA to increase the CAFE civil penalty rate does not conflict with the agency's duty to comply with the 2015 Act, 61 which includes the timing of when the adjustment will apply. To the contrary, the limited nature of the specific statutory procedure in EPCA for increasing the CAFE penalty rate (apart from the 2015 Act) suggests that Congress was restricting the scope of NHTSA's power, authorizing it to increase the CAFE civil penalty rate only under certain circumstances. Note that, as NHTSA has previously explained, EPCA acts as a “one-way ratchet” with no means for lowering the CAFE civil penalty rate  62 or conferring NHTSA any discretion over when penalties ought to be assessed. The 2015 Act and its procedures for adjustments are consistent with EPCA.

To the extent that the 2015 Act affords NHTSA any discretion to act, NHTSA concludes that its discretion would be limited. For example, the 2015 Act provides express procedures and deadlines for agencies to apply the adjustments. It also provides narrow exceptions for the amount of the adjustment and only for the initial “catch-up” adjustment. The purposes of the 2015 Act, as Congress stated in the Act itself, include “allow[ing] for regular adjustment for inflation of civil monetary penalties” and “maintain[ing] the deterrent effect of civil monetary penalties and promote compliance with the law.”  63 NHTSA notes that the CAFE civil penalty rate was established as $5 in 1975 and held constant at $5.50 since 1997 and that making the required adjustment aligns with the legislative purpose of catching up the rate for the lack of adjustments. Accordingly, NHTSA would decline to delay the adjustment further, even if it had the discretion to do so.

In the January 2021 interim final rule being repealed by this action, NHTSA accepted the industry petition's argument that applying the increased civil penalty rate to completed or largely completed model years would raise serious retroactivity concerns. 64 NHTSA acknowledged that retroactivity generally is not favored in the law and concluded that imposing a higher civil penalty rate for model years already completed or nearly so would not have incentivized improvements to fuel economy, given the industry timelines for the design, development, and production of new vehicles. 65

While retroactivity generally is not favored in the law, there is no rule that Congress cannot legislate retroactively. The 2015 Act expressly recognizes that it may have a partially retroactive effect; that is part of the statute's design and Congress's intent. The statute provides that “[a]ny increase under this Act in a civil monetary penalty shall apply only to civil monetary penalties, including those whose associated violation predated such increase, which are assessed after the date the increase takes effect.”  66

Nonetheless, NHTSA now concludes that the effect of the adjustment here applying beginning in Model Year 2019 is not retroactive. As NHTSA mentioned in the SNPRM, automakers were aware, as of December 2016, that the adjustment would apply beginning with Model Year 2019. The Second Circuit confirmed that an immediate adjustment was compelled by the 2015 Act, which long preceded Model Year 2019. 67 Indeed, the Auto Innovators acknowledge that “manufacturers knew there was a possibility that the $14 civil penalty rate might be applied to MYs 2019 to 2021 vehicles.”  68 It was not until Model Year 2019 was already nearly complete that the agency issued a final rule changing that—a rule that the Second Circuit subsequently determined was legally invalid. Auto Innovators (through its predecessor entities) participated in that litigation as an intervenor and was well aware of the possibility that the Second Circuit would—and indeed, did—restore the applicability of the adjustment beginning with Model Year 2019. Accordingly, NHTSA has reconsidered and rejected its previous characterization of the application of the adjustment beginning with Model Year 2019 as “retroactive.”

Any violation of the CAFE standards for Model Years 2019 through 2021 occurred or will occur well after NHTSA confirmed in December 2016 that it would apply penalties beginning with Model Year 2019—in response to a petition from industry to delay the effective application of the penalty increase precisely to Model Year 2019. Indeed, industry had reason to believe from the enactment of the 2015 Act and NHTSA's July 2016 adjustments that the adjustments could have applied immediately, or in any event, well before Model Year 2019. To the extent that manufacturers did not have notice by the 2015 Act itself, they unquestionably had notice by NHTSA's 2016 rules. The industry previously argued that vehicle designs are often fixed years in advance. Thus, by the time NHTSA promulgated its July 2019 final rule (that was promptly challenged in litigation and was subsequently vacated by the Second Circuit), automakers' designs for Model Years 2019 through 2021 were likely largely set already. At that time, NHTSA's regulations stated that the CAFE civil penalty adjustment to $14 (plus any other adjustments that needed to be made) would go into effect beginning with Model Year 2019. There was no guarantee at that time that NHTSA would have issued a rule reversing course and blocking the adjustment, and any attempt to do so would have been legally vulnerable. Any automakers that made their plans for Model Years 2019 through 2021 thinking that penalties would not increase did so at their own risk and in defiance of the Second Circuit's decisions.

The Second Circuit ruled that NHTSA's previous actions to delay or avoid the adjustment were unlawful, ultimately determining—twice—that the adjustment was “now in force.”  69 And the Auto Innovators concede that the Court's determinations that the adjustment is “now in force” is currently “having effects on manufacturers' decisions with regard to future model-year fuel economy decisions,” even though the interim final rule remained on the books until the effective date of this final rule. 70 That some manufacturers may have chosen to base their compliance decisions and production plans on the chance that NHTSA may take additional action to attempt to delay or avoid the adjustment despite legal vulnerability is a risk they took on their own, aware of the circumstances. The Auto Innovators' argument is expressly based on assumptions manufacturers made about how the Administration was “likely” to act. 71 These manufacturers—particularly those, as noted by the Auto Innovators, that participated in the court proceedings through their trade associations—were aware (or at least should have been aware) of the possibility that their predictions regarding NHTSA's actions would ultimately prove incorrect. 72 That possibility is not enough to create retroactivity concerns.

The Auto Innovators did argue that the statutory purposes of an adjustment are “primarily deterrent,” as stated in the 2015 Act and acknowledged by the Second Circuit. 73 However, the first purpose listed in the statute—and also recognized by the Second Circuit as “a primary purpose” of the statute  74 —is to “allow for regular adjustment for inflation of civil monetary penalties.”  75 Making the initial “catch-up” adjustment will allow NHTSA to conduct the required subsequent annual adjustments in line with the agency's other civil penalties that have already been adjusted on a regular basis. Furthermore, establishing the increased rate may have a deterrent effect in future model years as the rate continues to increase. And, indeed, the fact that automakers knew that an adjustment under the statute was likely at the time of the statute's passage, as well as upon the adoption of the 2016 rule—as the Auto Innovators acknowledged—very likely served as a deterrent for those manufacturers who opted to meet fuel economy standards rather than pay penalties.

Moreover, the Auto Innovators note elsewhere that imposing an appropriately adjusted rate to vehicles in Model Years 2019 to 2021 could still have future environmental impacts. 76 In any event, these purpose-based policy concerns, even if correct, are insufficient to override the language and structure of the governing statute, as the Second Circuit has plainly interpreted it.

The Auto Innovators also noted that “in the December 2016 Final Rule, NHTSA recognized the need for lead time (and in fact used the 18-month CAFE statutory lead time as a proxy) when initially delaying applicability of the $14 civil penalty rate to MY 2019.”  77 NHTSA does acknowledge the importance of lead time for manufacturers, but concludes here that manufacturers did receive appropriate lead time for Model Years 2019 through 2021 when the timing of the adjustment was established in December 2016—established at that time in response to a request from industry for delay. Under the interim final rule, the mandatory adjustment would not be applied until Model Year 2022, i.e., to vehicles sold more than five years after the statutory deadline for agencies to make their initial adjustments.

NHTSA also notes that it does not need to give 18 months' lead time before this adjustment becomes effective. The statutory lead time provision in EPCA for increasing the CAFE civil penalty rate expressly refers to the specific process described in that paragraph for increasing the penalty rate, not to adjustments required to be made pursuant to a separate statute. 78 The 2015 Act established the timing NHTSA and all other federal agencies were required to follow for the initial catch-up adjustment and the process for doing so through an interim final rulemaking without notice-and-comment.

NHTSA will make the mandatory adjustments to the CAFE civil penalty rate going forward, as required by law for all civil monetary penalties.

For similar reasons, to the extent that industry relied on the CAFE civil penalty rate not being adjusted as required by the statute, any such reliance was unreasonable and was at those manufacturers' own risk—prior to the promulgation of the January 2021 interim final rule or after.

In the January 2021 interim final rule, NHTSA concluded that the industry's reliance on the $5.50 rate was reasonable, as NHTSA reconsidered application of the 2015 Act by proposing in 2018 that the 2015 Act did not apply and finalizing the proposal in 2019. 79 However, manufacturers knew (or should have known) that the CAFE civil penalty rate was going to be adjusted when the 2015 Act was enacted, when NHTSA issued its initial catch-up adjustments in July 2016, and when NHTSA issued its response to industry's petition in December 2016 establishing the timing of the adjustment (and accommodating the industry's request for additional lead time in doing so). Indeed, the industry petition in 2016 acknowledged and did not challenge that the 2015 Act applied to the CAFE civil penalty rate. 80 While there was subsequent rulemaking on the issue, industry participants were also aware that there was litigation over the subsequent rules—indeed, they participated actively in the litigation—and they relied on those subsequent rules at their own risk. Once the Second Circuit vacated each of the rules, the industry had no basis for relying on either of those agency actions. 81 By industry's own argument, to the extent that manufacturers relied on the July 2019 final rule, much less the January 2021 interim final rule, the planning for Model Years 2019 to 2021 was already or largely complete. This was not a longstanding policy in effect for years before. Moreover, the interim final rule, by definition, was an interim rule that remained subject to change following public comment. It was also quickly subject to legal challenge and agency reconsideration. In particular, the President issued Executive Order 13990, directing review of the interim final rule and other regulations, just one week after the interim final rule was published in the Federal Register and while the post-promulgation comment period was still open. Given this short window, there was minimal time for manufacturers to reasonably rely on the interim final rule remaining in effect.

Furthermore, there are countervailing reliance interests to consider here. It is very likely that some manufacturers relied on the 2015 statute, the July 2015 initial catch-up adjustment, and the December 2016 final rule in planning for an adjustment to be in effect for Model Year 2019 and continued to do so given the uncertainty of the legal challenges to NHTSA's subsequent actions regarding the CAFE civil penalty rate. 82 And manufacturers had a strong financial incentive to do so, given that the value of credits for over-complying with the standards would be expected to increase dramatically with the initial adjustment to the CAFE civil penalty rate. 83 Delaying the application of the adjustment would almost certainly diminish the value of those credits.

As noted in the comments, 84 industry could have asked the Second Circuit to invoke its equitable discretion and to remand to NHTSA without vacatur, but they did not do so in either case that has already been decided (nor in the pending case challenging the January 2021 interim final rule). The Court also did not do so on its own, instead confirming twice its conclusion that the December 2016 rule was “now in force.”  85

In the January 2021 interim final rule, NHTSA concluded that, based on the available information, applying the adjustment to the CAFE civil penalty rate beginning in Model Year 2019 might inhibit economic recovery from the effects of the pandemic, while applying the adjustment beginning in Model Year 2022 was an appropriate action to take for the purpose of promoting job creation and economic growth, citing Executive Order 13924, “Regulatory Relief To Support Economic Recovery.”  86

Executive Order 13924 has since been revoked. 87 Moreover, because NHTSA now concludes that it did not have the authority to issue the interim final rule and lacks discretion regarding when to apply the adjustment, there is no opportunity for NHTSA to consider the economic impact of the COVID-19 pandemic or other economic impacts such as those caused by supply chain shortages and microchip shortages in determining when to apply the adjustment. 88 It is true that the 2015 Act did allow an agency to make the first adjustment of the amount of a civil monetary penalty by less than the otherwise required amount if increasing the civil monetary penalty by the otherwise required amount would have a negative economic impact, or if the social costs of increasing the civil monetary penalty by the otherwise required amount outweighed the benefits. 89 However, NHTSA's attempt to apply this exception through the “negative economic impact” prong was vacated by the Second Circuit as too late, and the statute provides that the exception could only be applied to the initial “catch-up” adjustment. Accordingly, there is no need for NHTSA to evaluate the economic evidence now to determine when it should apply the required adjustment; as the Second Circuit held, NHTSA has no such discretion.

Regardless, the economic record on this question is mixed. For example, despite the industry having lower sales in the middle of 2020, sales bounced back in 2021. Indeed, NADA reported “incredibly high sales in April 2021, . . . the fourth highest monthly total since the year 2000,”  90 Demand also remained “strong,” despite “new-vehicle average transaction prices reach[ing] record highs at the end of second quarter.”  91 Additional information reported by the manufacturers themselves also shows evidence of economic success, despite the challenges presented by the COVID-19 pandemic, microchip shortages, and other supply chain issues. 92

NHTSA also notes that the CAFE civil penalty formula incorporates the number of vehicles manufactured, so if production is reduced because of lower sales, supply chain issues, or microchip shortages, then the CAFE civil penalty liability will also be reduced (before accounting for credits).

Two additional points bear noting. On the “front end,” much of the relevant conduct ( i.e., designing and manufacturing) occurred before the COVID-19 pandemic commenced. The earliest cases that were later classified as COVID-19 were first identified in December 2019. 93 By that time, Model Year 2019 was complete for almost the entire industry, and under the industry's own view, the planning for Model Year 2020 had long since been completed by then with planning for Model Year 2021 well underway in the very least. Further, it was not until mid-March 2020 when the World Health Organization (WHO) declared COVID-19 a pandemic and the President declared a national emergency in the United States—approximately halfway through Model Year 2020 and only six months before the beginning of Model Year 2021 for most manufacturers.

On the “back end,” NHTSA has not yet assessed CAFE civil penalties for Model Year 2019 and beyond. It is possible that the economic state of the industry will be stronger, perhaps even above average, when those penalties are assessed. And the industry may have accrued or planned to accrue more credits by then to offset any additional penalty liability.

As noted in the SNPRM, some commenters on this issue have argued that delaying the application of the increased rate would negatively affect future compliance because manufacturers may be incentivized to hold credits for model years when the higher rate will apply. Similar to the economic evidence discussed above, NHTSA lacks discretion to consider manufacturers' planned uses of credits in determining when to apply the required adjustment. The government-wide 2015 Act applies regardless of how manufacturers plan to apply credits to any shortfalls.

Even if NHTSA could consider the use of credits in determining the appropriate timing of the adjustment, the Auto Innovators acknowledge that while manufacturers would likely use their earliest earned credits to offset their shortfalls before those credits expire, there could still be some credits that manufacturers would need to decide whether to use immediately or carry forward to future model years. 94 While the magnitude of the effects of these decisions may be small in the immediately affected model years, the magnitude of the effects could be compounded in future model years in a cascade as additional credits continue to be time-shifted.

Under the SNPRM, which NHTSA is now finalizing, the civil penalty rate for violations of CAFE standards for model years beginning with MY 2019 was $14, plus any adjustments that occurred or may occur. 95 $14 was the initial “catch-up” adjustment made by NHTSA on July 5, 2016, following the procedure and the formula in the 2015 Act. NHTSA is now addressing the adjustments that occurred since that time. Applying the annual adjustment procedures in the 2015 Act (including the requirement to round to the nearest $1) does not result in an increase in the $14 rate for the annual adjustments in 2017 through 2021, 96 but does result in an increase to $15 for 2022. Therefore, NHTSA is codifying the civil penalty rate of $15, along with clarifying regulatory text explaining that the civil penalty rate is $14 for MY 2019 through MY 2021 (and $5.50 for MYs before 2019).

EPCA provides a separate statutory authority for NHTSA to increase the CAFE civil penalty rate based on the impacts on energy conservation and the economy. 97 Any increase pursuant to that authority was initially capped by the statute at $10, based on the original $5 civil penalty rate. In the 2016 interim final rule, NHTSA noted that the 2015 Act, which required an initial adjustment of the CAFE civil penalty rate to $14, also required a corresponding adjustment on the cap under NHTSA's EPCA authority to $25 (from $10). NHTSA explained this in the preamble of the 2016 interim final rule, but this adjustment was inadvertently never codified in NHTSA's regulations. 98 NHTSA is now codifying that adjustment and the necessary adjustments for the intervening years. Applying the multipliers for the subsequent years, the adjusted amount would have remained $25 for 2017, increased to $26 for 2018, increased to $27 for 2019, remained $27 for 2020 and 2021, before being increased to $29 for 2022. Therefore, NHTSA is codifying the cap at $29, and NHTSA will make subsequent annual adjustments as required.

Pursuant to the 2015 Act, NHTSA did not undertake notice or comment to enact these adjustments. The 2015 Act provides clear direction for how to adjust the civil penalties, and states at Section 4(b)(2) that these adjustments shall be made “notwithstanding section 553 of title 5, United States Code.” NHTSA will continue to make the mandatory adjustments to the CAFE civil penalty rate and the statutory cap going forward, as required by law for all civil monetary penalties.

NHTSA has considered the impact of this rulemaking action under Executive Order 12866, Executive Order 13563, and the Department of Transportation's regulatory policies and procedures. OMB has designated this rule as a “significant regulatory action” under section 3(f) of Executive Order 12866. The Office of Information and Regulatory Affairs (OIRA) has determined that this rulemaking is “economically significant” and a “major rule” as NHTSA believes that the difference in the amount of penalties received by the government as a result of this rule are likely to exceed $100 million in at least one of the years affected by this rulemaking and that there may be additional economic effects as discussed below.

As explained in the SNPRM, the adjusted civil penalty rate will likely induce some degree of greater compliance with fuel economy standards as a general matter. Manufacturers that are paying civil penalties for CAFE violations have likely calculated that it is less costly or otherwise preferable to pay the penalties than to meet the statutory and regulatory requirements. An increased penalty rate, as required by the statute, changes this calculation, as it likely raises either the costs of credits a noncompliant manufacturer may choose to purchase, the total penalty amount a manufacturer will pay, or both.

In this final rule, NHTSA is repealing the interim final rule, which delayed the adjusted penalty rate by three model years, two of which are already complete and the last one which is largely complete. This final rule also codifies the adjusted penalty rate for 2022. An analysis here would be limited to estimating over this short time horizon: (1) Which manufacturers did not produce compliant fleets for Model Years 2019 and 2020 and are likely to not produce compliant fleets for Model Years 2021 and 2022; (2) what the shortfalls will be for those non-compliant manufacturers; and (3) the extent to which those manufacturers will choose to use credits (either their own or those purchased from over-compliant manufacturers) or pay penalties to address these shortfalls. Pointedly, such an analysis would not have sufficient information to account for whether, and if so, how manufacturers will adjust the composition of the fleet for these model years in response to the penalty change.

Any analysis would estimate what the compliance shortfalls will be and whether manufacturers will pay penalties or use credits. These estimates could be used to estimate the effects on individual manufacturers in the form of higher penalty payments, higher payments to other manufacturers for credits, or higher receipts for overcomplying manufacturers for credits sold to other manufacturers. However, NHTSA has only limited ability to estimate what strategies manufacturers will take either to use credits or pay penalties to deal with any noncompliance. That is a decision that each manufacturer must take based on their unique circumstances, and historically, NHTSA is not privy to the financial terms of any trades manufacturers make with each other. In the past, the vast majority of manufacturers pay no penalties, as only five manufacturers have paid civil penalties since Model Year 2011. 99 And only one of those manufacturers faced particularly heavy penalties—even before the $14 rate would have gone into effect—for failing to comply with the minimum domestic passenger car standard, which cannot be made up through the application of transferred or traded credits. 100

Despite this uncertainty, NHTSA continues to be confident that, based on the experience of recent model years, this rule will lead to at least $100 million difference in the amount of penalties in at least one model year. As explained in the SNPRM, NHTSA projects that the difference in the nationwide fleetwide net shortfall would result in at least $100 million more civil penalties being assessed at the $14 rate than the $5.50 for Model Year 2019. 101 Specifically, based on mid-model year fuel economy performance data and assuming a similar magnitude of production from Model Year 2018 for Model Year 2019, the projected shortfall of 1.3 miles per gallon across the U.S. fleet in Model year 2019 would result in a nationwide fleet-wide net shortfall of approximately $115.4 million at the $5.50 rate or an approximately $293.9 million shortfall at the $14 rate—an approximately $178.5 million difference.

As previously noted, it is expected that much of this increase would likely fall on a single automobile manufacturer and likely is due to a failure to comply with the minimum domestic passenger car standard (which, by law, cannot be made up for through transferred or traded credits).

In addition, NHTSA reiterates that commenters on this issue have raised valid questions about further economic effects, namely that longer-term impacts may vary as a result of manufacturer multi-year planning, the transfer of credits across model years and between manufacturers, and the changing value of credits over time. According to these commenters, if such variation were to occur, applying the $14 penalty rate beginning in Model Year 2019 may result in manufacturers applying credit balances to Model Year 2019 through 2021 vehicles and being incentivized to make fuel economy improvements in their fleet beyond that timeframe. And for manufacturers that do not currently have credits or cannot transfer or trade for them to make up a shortfall of the minimum domestic passenger car standard, applying the adjusted penalty rate beginning in Model Year 2019 places an even greater incentive on future compliance and fuel economy improvements to avoid additional higher penalties going forward, on top of the added benefits of energy conservation and improved environmental and public health benefits.

In any event, based on further consideration of the 2015 Act and the Second Circuit's decisions on this issue, NHTSA believes that that it does not have discretion over when the adjustment should begin to take effect. Further, the 2015 Act provided NHTSA no discretion over what the adjusted rate should be, as that is merely a function of the formula established by Congress and calculated by OMB, and mandated streamlined processes for making both the initial adjustment and any subsequent adjustments that do not require accompanying analyses or public comment. 102

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of proposed rulemaking or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions). No regulatory flexibility analysis is required if the head of an agency certifies the proposal will not have a significant economic impact on a substantial number of small entities. NHTSA has considered the impacts of this notice under the Regulatory Flexibility Act and recertifies that this rule would not have a significant economic impact on a substantial number of small entities under 5 U.S.C. 605(b), based on the factual basis provided in the SNPRM. NHTSA requested comment on the economic impact of this rule on small entities. None of the comments NHTSA received in response to the interim final rule or the SNPRM discussed this issue. The Small Business Administration's (SBA) regulations define a small business in part as a “business entity organized for profit, with a place of business located in the United States, and which operates primarily within the United States or which makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials or labor.”  103 SBA's size standards were previously organized according to Standard Industrial Classification (“SIC”) Codes. SIC Code 336211 “Motor Vehicle Body Manufacturing” applied a small business size standard of 1,000 employees or fewer. SBA now uses size standards based on the North American Industry Classification System (“NAICS”), Subsector 336—Transportation Equipment Manufacturing. This action is expected to affect manufacturers of motor vehicles. Specifically, this action affects manufacturers from NAICS codes 336111—Automobile Manufacturing, and 336112—Light Truck and Utility Vehicle Manufacturing, which both have a small business size standard threshold of 1,500 employees.

Though civil penalties collected under 49 CFR 578.6(h)(1) and (2) apply to some small manufacturers, low volume manufacturers can petition for an exemption from the Corporate Average Fuel Economy standards under 49 CFR part 525. This would lessen the impacts of this rulemaking on small business by allowing them to avoid liability for penalties under 49 CFR 578.6(h)(2). Small organizations and governmental jurisdictions will not be affected significantly as the price of motor vehicles and equipment ought not to change as the result of this rule.

Executive Order 13132 requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the [N]ational [G]overnment and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, the agency consults with State and local governments, or the agency consults with State and local officials early in the process of developing the proposed regulation. As noted previously, this rulemaking 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. The reason is that this rulemaking is expected to generally apply to motor vehicle manufacturers. Thus, the requirements of Section 6 of the Executive order do not apply.

The Unfunded Mandates Reform Act of 1995, Public Law 104-4, requires agencies to prepare a written assessment of the cost, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. Because this rulemaking does not include a Federal mandate, no unfunded mandate assessment has been prepared.

The National Environmental Policy Act of 1969 (NEPA)  104 directs that Federal agencies proposing “major Federal actions significantly affecting the quality of the human environment” must, “to the fullest extent possible,” prepare “a detailed statement” on the environmental impacts of the proposed action (including alternatives to the proposed action). 105 However, there are some instances where NEPA does not apply. One consideration is whether the action at issue is a non-discretionary action to which NEPA may not apply or for which NEPA may require less detailed analysis. 106

NHTSA addressed NEPA in promulgating the interim final rule, concluding that even though a NEPA analysis “is not required, this section [of the preamble to the interim final rule] may serve as the Agency's Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) for this interim final rule.”  107 In the SNPRM, NHTSA again concluded that no further analysis pursuant to NEPA is required in adjusting the penalty rate this time, which is in line with legal precedent concerning non-discretionary agency action. 108 NHTSA reiterates that conclusion here.

Although NHTSA tentatively concluded in the SNPRM (and affirms here) that it does not have discretion on whether to adjust the CAFE civil penalty rate as required by the statute and thus that a NEPA analysis was not required, NHTSA prepared an environmental assessment to evaluate the effects of the timing of such an increase on the environment. When a Federal agency prepares an environmental assessment, the Council on Environmental Quality (CEQ) NEPA implementing regulations require the agency to (1) “[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact,” and (2) “[b]riefly discuss the purpose and need for the proposed action, alternatives . . . , and the environmental impacts of the proposed action and alternatives, and include a listing of [a]gencies and persons consulted.”  109 Generally, based on the environmental assessment, the agency must make a determination to prepare an environmental impact statement or “prepare a finding of no significant impact if the [a]gency determines, based on the environmental assessment, not to prepare an environmental impact statement because the proposed action will not have significant effects.”  110

NHTSA solicited public comments on the applicability of NEPA to this action and the contents and tentative conclusions of the Draft EA. The comments were silent on NEPA issues or agreed that no additional analysis was necessary. 111 Having reviewed the comments, this section may serve as the Agency's EA and FONSI for this final rule. NHTSA considered the findings of this EA prior to deciding that the adjusted rate will go into effect beginning in Model Year 2019 and making the subsequent required adjustments through 2022.

The SNPRM and this final rule set forth the purpose of and need for this action. Pursuant to the 2015 Act and the Second Circuit's decision, NHTSA is required to make an initial “catch-up” adjustment to the civil monetary penalties it administers for the CAFE program. The purpose of the SNPRM and this final rule is to consider the timing of the application of the adjustment to the CAFE civil penalty rate, consistent with the statutory requirements.

NHTSA considered two alternatives for this action. The first alternative was to restore the status quo ante prior to the interim final rule, which is adjusting the CAFE civil penalty rate from $5.50 to $14 beginning in Model Year 2019, before making any subsequent required adjustments. This timing was originally established by the December 2016 final rule and was twice made effective by decisions of the Second Circuit. The second alternative was applying the initial adjustment beginning in Model Year 2022, which reflects the action taken in the interim final rule (the No Action Alternative). As noted in the SNPRM, NHTSA was no longer considering the alternative of applying the initial adjustment beginning in Model Year 2023, but NHTSA accepted comments on whether it should consider other alternatives of the adjustment applying beginning with a model year later than Model Year 2019. No commenter suggested any other alternative. This EA describes the potential environmental impacts associated with the two alternatives in comparison with each other.

In the interim final rule, NHTSA asserted that it anticipated no differences in environmental impacts associated with the alternatives of applying the adjustment beginning in Model Year 2019, 2020, 2021, or 2022. NHTSA based this conclusion on the fact that vehicles for Model Years 2019 and 2020 had largely if not entirely been produced already, and many manufacturers were already selling Model Year 2021 vehicles.

As explained in the SNPRM, NHTSA reconsidered whether this assessment is complete after reviewing the comments received in response to the interim final rule. Commenters had argued that, regardless of the impact of this rulemaking action on Model Year 2019 through 2021 vehicles, longer-term impacts may vary as a result of manufacturer multi-year planning, the transfer of credits across model years and between manufacturers, and the changing value of credits over time. If this is correct, applying the adjustment earlier could result in manufacturers applying credit balances to Model Year 2019 through 2021 vehicles and being incentivized to make fuel economy improvements in their fleet beyond that timeframe, rather than paying civil penalties at the $5.50 rate for Model Years 2019 through 2021 and saving the credits for future model years when they could be valued more due to the adjustment. Additionally, for manufacturers without credit balances, the potential application of a significantly higher civil penalty for Model Years 2019 through 2021 may spur more rapid implementation of fuel-saving technology in order to allow the manufacturer to accrue credits that may be carried back to cover the shortfall in Model Years 2019 through 2021.

Overall, NHTSA anticipates that applying the adjustment beginning with Model Year 2019 may lead to the eventual application of more fuel-saving technology, resulting in fewer greenhouse gas emissions and reductions in many criteria and toxic air pollutants compared to applying the adjustment beginning in Model Year 2022. 112 Although Model Years 2019 and 2020 are already completed, and Model Year 2021 is essentially complete, the civil penalty assessment process is not yet complete for any of them, much less for Model Year 2022. 113 As a result, NHTSA does not yet know the anticipated manufacturer compliance shortfall for these model years. Because manufacturers can apply credits across a multi-year window, their decisions about how to apply credits in earlier model years will affect the availability of credits and the application of fuel-saving technology in later model years. However, NHTSA does not know whether and to what degree manufacturers will choose to pay fines in lieu of applying accrued credits, trade credits with other manufacturers, or rely on multi-year planning and credit carry-forward and carry-back to address shortfalls. NHTSA invited comments, information, and analyses from the public on the degree to which this may occur as a result of changes to the civil penalty rate in Model Year 2019 versus Model Year 2022. The Auto Innovators provided an analysis arguing that “delaying the application of a $14 civil penalty rate to MY 2022 is highly unlikely to affect manufacturers' compliance strategies by allowing them to delay the use of 2017 or later credits to MY 2022” because “older credits will be used to mostly, if not completely, cancel any shortfalls.”  114

At this time, NHTSA continues to anticipate the impacts to be small. The difference between the alternatives contemplated in this action is only whether or not the initial civil penalty rate increase applies to three Model Years: 2019, 2020, and 2021. NHTSA continues to believe the impacts on those Model Years alone is expected to be de minimis, as all three model years have largely if not entirely been produced already. Further, as NHTSA has addressed in its CAFE rulemakings, many manufacturers have been unwilling to pay civil penalties historically. Those manufacturers may continue to opt to apply credits even if a lower civil penalty rate applied, rather than hold credits for future model years when the civil penalty rate would be higher.

NHTSA and DOT have consulted with OMB and the U.S. Department of Justice and provided other Federal agencies with the opportunity to review and provide feedback on this rulemaking.

NHTSA has reviewed the information presented in this EA and concludes that adjusting the CAFE civil penalty rate beginning with Model Year 2019, as compared to Model Year 2022, would have, at most, a more positive impact on the quality of the human environment to the extent that manufacturers may be more likely to expend credit balances on Model Year 2019 through 2021 vehicles than if the civil penalty rate remained at $5.50 for those model years. Lacking such credits in future years, manufacturers would be more likely to make improvements to the fuel economy of their fleets to avoid paying the higher civil penalty rates that would occur under either alternative. Additionally, higher civil penalty rates in Model Years 2019 through 2021 may cause manufacturers to more rapidly implement fuel-saving technology so that they may accrue credits to be carried back to cover compliance shortfalls. But NHTSA does not expect any differences in the impacts under either of the alternatives to rise to the level of significance that would necessitate the preparation of an Environmental Impact Statement.

NHTSA has reviewed this EA. Based on the EA, NHTSA concludes that implementation of either of the action alternatives (including this final rule) will not have a significant effect on the human environment and that a “finding of no significant impact” is appropriate. This statement constitutes the Agency's “finding of no significant impact,” and an environmental impact statement will not be prepared. 115

This rulemaking does not have a preemptive effect. For the reasons explained above, this rulemaking does not have a retroactive effect. Judicial review of the interim final rule or a subsequent final rule may be obtained pursuant to 5 U.S.C. 702.

In accordance with the Paperwork Reduction Act of 1980, NHTSA states that there are no requirements for information collection associated with this rulemaking action.

Please note that anyone is able to search the electronic form of all comments received into any of DOT's 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 (65 FR 19477), or you may visit https://www.transportation.gov/privacy.

In consideration of the foregoing, 49 CFR part 578 is amended as set forth below.

The Northern Pacific Halibut Act of 1982 (Halibut Act), 16 U.S.C. 773-773k, gives the Secretary of Commerce (Secretary) responsibility for implementing the provisions of the Convention between Canada and the United States for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Halibut 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). The Halibut Act requires that the Secretary adopt regulations to carry out the purposes and objectives of the Halibut Convention and Halibut Act (16 U.S.C. 773c). Additionally, as provided in the Halibut Act, the Regional Fishery Management Councils having authority for the geographic area concerned 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 International Pacific Halibut Commission (IPHC) regulations (16 U.S.C. 773c(c)).

At its annual meeting January 24-28, 2022, the IPHC recommended an Area 2A catch limit of 1,490,000 pounds (lb) (675.9 metric tons (mt)) for 2022. This catch limit is derived from the total constant exploitation yield (TCEY) of 1,650,000 lb (748.4 mt) for Pacific halibut, which includes commercial discards and bycatch estimates calculated using a formula developed by the IPHC. The Area 2A catch limit and commercial fishery allocations are adopted by the IPHC and were published in the Federal Register on March 7, 2022 (87 FR 12604) after acceptance by the Secretary of State, with concurrence from the Secretary of Commerce, in accordance with 50 CFR 300.62. Additionally, the March 7, 2022 (87 FR 12604) final rule contains annual domestic management measures and IPHC regulations that are published each year under NMFS' authority to implement the Halibut Convention (50 CFR 300.62).

Since 1988, the Pacific Fishery Management Council (Council) has developed and NMFS has approved annual Catch Sharing Plans that allocate the IPHC regulatory Area 2A Pacific halibut catch limit between treaty Indian and non-Indian harvesters, and among non-Indian commercial and recreational (sport) fisheries. In 1995, the Council recommended, and NMFS approved a long-term Area 2A Catch Sharing Plan (60 FR 14651; March 20, 1995). NMFS has been approving adjustments to the Area 2A Catch Sharing Plan based on Council recommendations each year to address the changing needs of these fisheries. While the full Catch Sharing Plan is not published in the Federal Register , it is made available on the Council and NMFS websites.

This rule approves the Council's recommended changes to the Catch Sharing Plan for IPHC regulatory Area 2A. The 2022 Catch Sharing Plan was developed through the Council's public process. This rule implements recreational Pacific halibut fishery management measures for 2022, which include season opening and closing dates. Further details of the changes made for the 2022 Catch Sharing Plan are described in the proposed rule (87 FR 9021; February 17, 2022) and are not repeated here.

As described above, NMFS is adopting recreational fishery management measures, including season dates for the 2022 fishery. The Catch Sharing Plan includes a framework for setting days open for fishing by subarea; under this framework, each state submits final recommended season dates annually to NMFS during the proposed rule comment period. This final rule contains dates for the recreational fisheries (though referred to as “sport” in IPHC documents, “recreational” will be used in this rule) based on the 2022 Catch Sharing Plan as recommended by the Council and the recommended dates submitted by the states during public comment on the proposed rule.

NMFS is implementing the following Area 2A recreational fishery management measures consistent with the Council's Catch Sharing Plan. If there is any discrepancy between the Catch Sharing Plan and Federal regulations, Federal regulations take precedence. The recreational fishing subareas, quotas, fishing dates, and daily bag limits are as follows. These may be modified through inseason actions consistent with 50 CFR 300.63(c). All recreational fishing in Area 2A is managed on a “port of landing” basis, whereby any halibut landed into a port counts toward the quota for the area in which that port is located, and the regulations governing the area of landing apply, regardless of the specific area of catch.

The quota for the area in Puget Sound and the U.S. waters in the Strait of Juan de Fuca, east of a line extending from 48°17.30′ N lat., 124°23.70′ W long. north to 48°24.10′ N lat., 124°23.70′ W long., is 83,210 lb (37.74 mt).

(a) For the area in Puget Sound and the U.S. waters in the Strait of Juan de Fuca, east of a line at approximately 123°49.60′ W long., fishing is open April 7-9, 14-16, 21-23, 28-30; May 5-7, 12-14, 19-21, 27-29; June 2-4, 9-11, 16-18, 23-25, and 30. If unharvested quota remains after June 30, NMFS may take inseason action to reopen the fishery August 18 through September 30, up to five days per week, on Thursday, Friday, Saturday, Sunday, and Monday of each week, or until there is not sufficient quota for another full day of fishing and the area is therefore closed. Any closure will be announced in accordance with Federal regulations at 50 CFR 300.63(c) and on the NMFS hotline at (206) 526-6667 or (800) 662-9825.

(b) For the area in U.S. waters in the Strait of Juan de Fuca, approximately between 124°23.70′ W long. and 123°49.60′ W long., fishing is open May 5, 7, 12, 14, 19, 21, 27-29; June 2-4, 9-11, 16-18, 23-25, and 30. If unharvested quota remains after June 30, NMFS may take inseason action to reopen the fishery August 18 through September 30, up to five days per week, on Thursday, Friday, Saturday, Sunday, and Monday of each week, or until there is not sufficient quota for another full day of fishing and the area is therefore closed. Any closure will be announced in accordance with Federal regulations at 50 CFR 300.63(c) and on the NMFS hotline at (206) 526-6667 or (800) 662-9825.

(c) The daily bag limit is one halibut of any size per day per person.

The quota for landings into ports in the area off the north Washington coast, west of a line at approximately 124°23.70′ W long. and north of the Queets River (47°31.70′ N lat.), is 133,847 lb (60.71 mt).

(a) Fishing is open May 5, 7, 12, 14, 19, 21, 27, and 29; June 2, 4, 9, 11, 16, 18, 23, 25, and 30. If unharvested quota remains after June 30, NMFS may take inseason action to reopen the fishery August 18 through September 30, up to five days per week, on Thursday, Friday, Saturday, Sunday, and Monday of each week, or until there is not sufficient quota for another full day of fishing and the area is therefore closed. Any closure will be announced in accordance with Federal regulations at 50 CFR 300.63(c) and on the NMFS hotline at (206) 526-6667 or (800) 662-9825.

(b) The daily bag limit is one halibut of any size per day per person.

(c) Recreational fishing for groundfish and halibut is prohibited within the North Coast Recreational Yelloweye Rockfish Conservation Area (YRCA). It is unlawful for recreational fishing vessels to take and retain, possess, or land halibut taken with recreational gear within the North Coast Recreational YRCA. A vessel fishing with recreational gear in the North Coast Recreational YRCA may not be in possession of any halibut. Recreational vessels may transit through the North Coast Recreational YRCA with or without halibut on board. The North Coast Recreational YRCA is defined in groundfish regulations at 50 CFR 660.70(b).

The quota for landings into ports in the area between the Queets River, WA (47°31.70′ N lat.), and Leadbetter Point, WA (46°38.17′ N lat.), is 68,555 lb (31.10 mt).

(a) This subarea is divided between the all-depth fishery (the Washington South coast primary fishery), and the incidental nearshore fishery in the area from 47°31.70′ N lat. south to 46°58.00′ N lat. and east of a boundary line approximating the 30-fm (55-m) depth contour. This area (the Washington South coast northern nearshore area) is defined by straight lines connecting all of the following points in the order stated as described by the following coordinates:

(1) 47°31.70′ N lat, 124°37.03′ W long;

(2) 47°25.67′ N lat, 124°34.79′ W long;

(3) 47°12.82′ N lat, 124°29.12′ W long;

(4) 46°58.00′ N lat, 124°24.24′ W long.

The primary fishery season dates are May 5, 8, 12, 15, 19, 22, and 26; June 16, 19, 23, and 26, or until there is not sufficient quota for another full day of fishing and the area is therefore closed. If unharvested quota remains after June 30, NMFS may take inseason action to reopen the fishery August 19 and/or September 23. Any closure will be announced on the NMFS hotline at (206) 526-6667 or (800) 662-9825. The fishing season in the Washington South Coast northern nearshore area commences the Saturday subsequent to the closure of the primary fishery in May or June if quota remains in the Washington South Coast subarea allocation, and continues seven days per week until 68,555 lb (31.10 mt) is projected to be taken by the two fisheries combined and the fishery is therefore closed or on September 30, whichever is earlier. If the fishery is closed prior to September 30, or there is insufficient quota remaining to reopen the Washington South coast, northern nearshore area for another fishing day, then any remaining quota may be transferred in-season to another Washington coastal subarea by NMFS, in accordance with Federal regulations at 50 CFR 300.63(c).

(b) The daily bag limit is one halibut of any size per day per person.

(c) Seaward of the boundary line approximating the 30-fm (55-m) depth contour and during days open to the primary fishery, lingcod may be taken, retained and possessed when allowed by groundfish regulations at 50 CFR 660.360(c).

(d) Recreational fishing for groundfish and halibut is allowed within the South Coast Recreational YRCA and Westport Offshore Recreational YRCA. The South Coast Recreational YRCA is defined at 50 CFR 660.70(e). The Westport Offshore Recreational YRCA is defined at 50 CFR 660.70(f).

The quota for landings into ports in the area between Leadbetter Point, WA (46°38.17′ N lat.), and Cape Falcon, OR (45°46.00′ N lat.), is 19,037 lb (8.64 mt).

(a) This subarea is divided into an all-depth fishery and a nearshore fishery. The nearshore fishery is allocated 500 lb (0.23 mt) of the subarea allocation. The nearshore fishery extends from Leadbetter Point (46°38.17′ N lat., 124°15.88′ W long.) to the Columbia River (46°16.00′ N lat., 124°15.88′ W long.) by connecting the following coordinates in Washington: 46°38.17′ N lat., 124°15.88′ W long. 46°16.00′ N lat., 124°15.88′ W long., and connecting to the boundary line approximating the 40-fm (73-m) depth contour in Oregon. The nearshore fishery opens May 9, and continues on Monday, Tuesday, and Wednesday each week until the nearshore allocation is taken, or on September 30, whichever is earlier. The all-depth fishery is open May 5, 8, 12, 15, 19, 22, and 26; June 2, 5, 9, 12, 16, 19, 23, 26, and 30, or until there is not sufficient quota for another full day of fishing and the area is therefore closed. If unharvested quota remains after June 30, NMFS may take inseason action to reopen the fishery on August 19 and/or September 23. Any closure will be announced on the NMFS hotline at (206) 526-6667 or (800) 662-9825. Subsequent to this closure, if there is insufficient quota remaining in the Columbia River subarea for another fishing day, then any remaining quota may be transferred inseason to another Washington and/or Oregon subarea by NMFS, in accordance with Federal regulations at 50 CFR 300.63(c). Any remaining quota would be transferred to each state in proportion to the allocation formula in the Catch Sharing Plan.

(b) The daily bag limit is one halibut of any size per day per person.

(c) Pacific Coast groundfish may not be taken and retained, possessed or landed when halibut are on board the vessel, except sablefish, Pacific cod, flatfish species, yellowtail rockfish, widow rockfish, canary rockfish, redstripe rockfish, greenstriped rockfish, silvergray rockfish, chilipepper, bocaccio, blue/deacon rockfish, and lingcod caught north of the Washington-Oregon border (46°16.00′ N lat.) may be retained when allowed by Pacific Coast groundfish regulations at 50 CFR 660.360, during days open to the all-depth Pacific halibut fishery. Long-leader gear (as defined at 50 CFR 660.351) may be used to retain groundfish during the all-depth Pacific halibut fishery south of the Washington-Oregon border, when allowed by Pacific Coast groundfish regulations at 50 CFR 660.360.

(d) Taking, retaining, possessing, or landing halibut on groundfish trips is allowed in the nearshore area on days not open to all-depth Pacific halibut fisheries.

The quota for landings into ports in the area off Oregon between Cape Falcon (45°46.00′ N lat.) and Humbug Mountain (42°40.50′ N lat.), is 269,782 lb (122.37 mt).

(a) The nearshore fishery opens on May 1, seven days per week, in the area shoreward of a boundary line approximating the 40-fm (73-m) depth contour, or until the sub-quota for the central Oregon nearshore fishery of 32,374 lb (14.68 mt), or any inseason revised quota is estimated to have been taken and the season is therefore closed, or on October 31, whichever is earlier. The boundary line approximating the 40-fm (73-m) depth contour between 45°46.00′ N lat. and 42°40.50′ N lat. is defined at 50 CFR 660.71(o).

(b) The spring all-depth fishery opens May 12, seven days per week, through June 30. In the event that there is remaining subarea allocation after June 30, the fishery will also be open July 7-9 and 21-23 or until there is not enough quota remaining for a full day of fishing and the fishery is therefore closed. The allocation to the all-depth fishery is 169,963 lb (77.09 mt).

(c) The summer all-depth fishery opens on August 4-6, 18-20; September 1-3, 15-17, September 29-October 1, 13-15, and 27-29; or until the combined spring season and summer season quotas in the area between Cape Falcon and Humbug Mountain, OR, are estimated to have been taken and the area is therefore closed. NMFS, in accordance with notice procedures in Federal regulations at 50 CFR 300.63(c)(3), will announce on the NMFS hotline (206) 526-6667 or (800) 662-9825 in July whether the fishery will re-open for the summer season in August. Additional fishing days may be opened if enough quota to allow for additional days of fishing remains after the last day of the first scheduled open period. If, after this date, an amount greater than or equal to 60,000 lb (27.2 mt) remains in the combined nearshore, spring, and summer quota, NMFS may take inseason action to reopen the fishery every Thursday, Friday and Saturday, beginning August 4, 5, and 6, and/or the fishery may be open up to seven days a week beginning September 1, ending when there is insufficient quota remaining or October 31, whichever is earlier. If after September 6 an amount greater than or equal to 30,000 lb (13.6 mt) remains in the combined nearshore, spring, and summer quota, and the fishery is not already open every Thursday, Friday and Saturday, NMFS may take inseason action to re-open the fishery every Thursday, Friday and Saturday, beginning September 8, 9, and 10, through October 31, until there is not sufficient quota for another full day of fishing and the area is closed. At the conclusion of the spring all-depth season, NMFS may increase the bag limit to two fish of any size per person, per day. NMFS, in accordance with notice procedures at 50 CFR 300.63(c)(3), will announce on the NMFS hotline (206) 526-6667 or (800) 662-9825 whether the summer all-depth fishery will be open on such additional fishing days, what days the fishery will be open, and what the bag limit is.

(d) The daily bag limit is one halibut of any size per day per person, unless otherwise specified through inseason action. NMFS, in accordance with notice procedures at 50 CFR 300.63(c)(3), will announce on the NMFS hotline (206) 526-6667 or (800) 662-9825 any bag limit changes.

(e) During days open to all-depth halibut fishing when the groundfish fishery is restricted by depth, when halibut are on board the vessel, no groundfish, except sablefish, Pacific cod, and other species of flatfish (sole, flounder, sanddab), may be taken and retained, possessed or landed, except with long-leader gear (as defined at §  660.351), when allowed by groundfish regulations. During days open to all-depth halibut fishing when the groundfish fishery is open to all depths, any groundfish species permitted under the groundfish regulations may be retained, possessed or landed if halibut are on board the vessel. During days only open to nearshore halibut fishing, flatfish species may not be taken and retained seaward of the 40-fm (73-m) depth contour if halibut are on board the vessel.

(f) When the all-depth halibut fishery is closed and halibut fishing is permitted only shoreward of a boundary line approximating the 40-fm (73-m) depth contour, halibut possession and retention by vessels operating seaward of a boundary line approximating the 40-fm (73-m) depth contour is prohibited.

(g) Recreational fishing for groundfish and halibut is prohibited within the Stonewall Bank YRCA. It is unlawful for recreational fishing vessels to take and retain, possess, or land halibut taken with recreational gear within the Stonewall Bank YRCA. A vessel fishing in the Stonewall Bank YRCA may not possess any halibut. Recreational vessels may transit through the Stonewall Bank YRCA with or without halibut on board. The Stonewall Bank YRCA is defined at 50 CFR 660.70(g)-(i).

The quota for landings into ports in the area south of Humbug Mountain, OR (42°40.50′ N lat.) to the Oregon/California Border (42°00.00′ N lat.) is 8,000 lb (3.63 mt).

(a) The fishery opens May 1, seven days per week, until the quota is taken or October 31, whichever is earlier.

(b) The daily bag limit is one halibut per person with no size limit, unless otherwise specified through inseason action. NMFS, in accordance with notice procedures at 50 CFR 300.63(c)(3), will announce on the NMFS hotline (206) 526-6667 or (800) 662-9825 any bag limit changes.

(c) During days open to the Pacific halibut fishery, when halibut are on board the vessel, no groundfish except sablefish, Pacific cod, and other species of flatfish (sole, flounder, sanddab), may be taken and retained, possessed or landed, except with long-leader gear (as defined at §  660.351) when allowed by groundfish regulations at 50 CFR 660.360.

The quota for landings into ports south of the Oregon/California Border (42°00.00′ N lat.) and along the California coast is 38,740 lb (17.57 mt).

(a) The fishery opens May 1 through November 15, or until the subarea quota is estimated to have been taken and the season is therefore closed, whichever is earlier. NMFS, in accordance with notice procedures at § 300.63(c)(3), will announce any closure on the NMFS hotline (206) 526-6667 or (800) 662-9825.

(b) The daily bag limit is one halibut of any size per day per person.

NMFS published the proposed rule on February 17, 2022 (87 FR 9021). NMFS accepted public comments on the Council's recommended modifications to the 2022 Area 2A Catch Sharing Plan and the proposed 2022 annual management measures through March 4, 2022. NMFS received two comments from state agencies—the Oregon Department of Fish and Wildlife (ODFW) and the California Department of Fish and Wildlife (CDFW)—and one comment from a member of the public.

Comment 1: ODFW submitted a comment recommending final recreational fishing season dates for the 2022 season for the Central Oregon Coast subarea. ODFW hosted a public meeting and an online survey following the IPHC annual meeting. Based on stakeholder input, past fishing effort and harvest rates, and the risk of exceeding the combined spring and summer allocations, ODFW recommended season dates for the spring and summer Central Oregon Coast fisheries. For spring, ODFW recommended open dates of May 12 through June 30, seven days per week. In the event that there is remaining subarea allocation following the initial open dates, ODFW recommended the spring fishery open on July 7, 8, 9 and July 21, 22, and 23. ODFW recommended summer fishery dates on August 4, 5, 6; August 18, 19, 20; September 1, 2, 3; September 15, 16, 17; September 29, 30, October 1; October 13, 14, 15; and October 27, 28, 29; or until the total 2022 all-depth catch limit for the subarea is taken.

Response: NMFS concurs that the ODFW-recommended season dates are appropriate. There are a few differences between the spring and summer season dates NMFS published in the proposed rule and those recommended by ODFW. However, based on the rationale provided by ODFW, NMFS has modified the recreational fishery season dates off of Oregon to those recommended by ODFW in this final rule.

Comment 2: CDFW submitted a comment concurring with the season dates for the fisheries off of California that NMFS published in the proposed rule for the 2022 season. CDFW hosted an online survey following the IPHC annual meeting. Based on public comments received on Pacific halibut fisheries in California and fishing performance in recent years, CDFW recommended season dates of May 1-November 15, or until quota has been attained, whichever comes first.

Response: NMFS concurs that these season dates are appropriate and affirms the recreational fishery season dates off of California in this final rule.

Comment 3: NMFS received one public comment discussing the daily bag limit in California.

Response: Area 2A fisheries are managed by allocating quota catch limit to each sector and subarea, and managing to an Area 2A catch limit that is set by the IPHC at a level that represents a relatively conservative level of harvest, and is consistent with its conservation objectives for the halibut stock. In addition, two out of the last three years, the quota for the California recreational fishery was not fully attained. Therefore, NMFS has determined the recreational bag limit in California is appropriate.

As described in the response to Comment 1 above, NMFS changed season dates off of Oregon in this final rule.

Regulations governing the U.S. fisheries for Pacific halibut are developed by the IPHC, the Pacific Fishery Management Council, the North Pacific Fishery Management Council, the Secretary of State and the Secretary of Commerce. Additionally, as provided in the Halibut Act, the Regional Fishery Management Councils having authority for the geographic area concerned 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 (16 U.S.C. 773c(c)). The final rule is consistent with the Council's authority to allocate halibut catches among fishery participants in the waters in and off Washington, Oregon, and California.

NMFS prepared an EA for Area 2A Pacific halibut fishery management, and the Assistant Administrator concluded that there will be no significant impacts on the human environment as a result of this rule. The proposed rule (87 FR 9021; February 17, 2022) described where the draft EA could be viewed and how to comment. The public comment period closed March 4, 2022. There were no comments received on the draft EA, and therefore there were no changes or updates resulting from the public comment period. A copy of the Final EA and associated Finding of No Significant Impact are available on NMFS' website at https://www.fisheries.noaa.gov/west-coast/laws-and-policies/pacific-halibut-actions-nepa-documents.

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

NMFS finds good cause to waive the 30-day delay in the date of effectiveness and make this rule effective on March 31, 2022, in time for the start of recreational Pacific halibut fisheries on April 7, 2022, pursuant to 5 U.S.C. 553(d)(3). The 2022 Catch Sharing Plan provides the framework for the annual management measures and setting subarea allocations based on annual catch limits set by the IPHC. This rule implements 2022 Area 2A subarea allocations as published in the proposed rule (87 FR 9021; February 17, 2022) for the recreational Pacific halibut fishery based on the formulas set in the Catch Sharing Plan and using the 2022 Area 2A catch limit for Pacific halibut set by the IPHC and published by NMFS on March 7, 2022 (87 FR 12604).

Additionally, delaying the effective date of this rule would be contrary to the public interest. The Council's 2022 Catch Sharing Plan approved in this rule includes changes that respond to the needs of the fisheries in each state, including fisheries that begin in early April. The Catch Sharing Plan and management measures were developed through multiple public meetings of the Council, and were described at the IPHC meeting where public comment was accepted. A delay in the effectiveness of this rule for 30 days would result in the fisheries not opening on their intended timelines and on the dates the affected public are expecting. The recreational Pacific halibut fisheries have high participation, and some subareas close months before the end of the season due to subarea allocation attainment. If the fisheries do not open on their intended timelines, fishing opportunity is lost, potentially causing economic harm to communities at recreational fishing ports.

Therefore, a delay in effectiveness could cause economic harm to the associated fishing communities by reducing fishing opportunity at the start of the fishing year. As a result of the potential harm to fishing communities that could be caused by delaying the effectiveness of this final rule, NMFS finds good cause to waive the 30-day delay in the date of effectiveness and make this rule effective upon publication in the Federal Register .

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities for purposes of the Regulatory Flexibility Act. The factual basis for the certification was published in the proposed rule and is not repeated here. As a result, a regulatory flexibility analysis was not required and none was prepared.

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

For the reasons set out in the preamble, 50 CFR part 300, subpart E, is amended as follows:

The dolphin and wahoo fishery in Federal waters from Maine south to the Florida Keys in the Atlantic is managed under the Dolphin and Wahoo FMP. The Dolphin and Wahoo FMP was prepared by the Council and implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On December 23, 2021, NMFS published a notice of availability for Amendment 10 and requested public comment (86 FR 72911). NMFS approved Amendment 10 on March 17, 2022. On January 14, 2022, NMFS published a proposed rule for Amendment 10 and requested public comment (87 FR 2389). The proposed rule and Amendment 10 outline the rationale for the actions contained in this final rule. A summary of the management measures described in Amendment 10 and implemented by this final rule is described below.

The current total ACLs for both dolphin and wahoo were added to the FMP in 2014 through Amendment 5 to the Dolphin and Wahoo FMP (Amendment 5), and are based on the Council's Scientific and Statistical Committee's (SSC) ABC recommendations using the third highest landings value during 1999-2008 (79 FR 32878; June 9, 2014). The landings data during that time period did not include recreational landings from Monroe County, Florida, and were based on recreational data from the Marine Recreational Information Program's (MRIP) Coastal Household Telephone Survey (CHTS) method. In April 2020, the Council's SSC recommended new ABC levels for dolphin and wahoo using the third highest annual commercial and recreational landings value during 1994-2007. These landings include recreational landings from Monroe County, Florida, and used MRIP's Fishing Effort Survey (FES) method, which is considered more reliable and robust compared to the CHTS survey method. The new ABC recommendations for dolphin and wahoo are also based on the new weight estimation procedure from NMFS Southeast Fisheries Science Center (SEFSC) that uses a 15 fish minimum sample size and represents the best scientific information available. This final rule revises the total ACLs for dolphin and wahoo to equal the new ABC values.

The current sector allocations for dolphin were added to the FMP in 2016 through Amendment 8 to the Dolphin and Wahoo FMP (Amendment 8), with 10.00 percent of the total ACL to the commercial sector and 90.00 percent of the total ACL to the recreational sector (81 FR 3731; January 22, 2016). In 2015, the commercial sector was closed because the commercial ACL was met during that fishing year. In Amendment 8, the Council set the commercial allocation at the average of the percentages of the total commercial catch for 2008-2012, and the resulting 10 percent of the total ACL for the commercial allocation was expected to prevent subsequent closures of the commercial sector. The current sector allocations for wahoo were added to the FMP in 2014 through Amendment 5, with 3.93 percent of the total ACL to the commercial sector and 96.07 percent of the total ACL to the recreational sector. The Council decided on these wahoo allocations by balancing long-term catch history with recent catch history, and determined this method as the most fair and equitable way to allocate fishery resources since it considered past and present participation. The current allocations for both dolphin and wahoo were applied to the respective species' total ACLs (equal to the ABCs) to obtain the sector ACLs.

Amendment 10 specifies commercial and recreational allocations for dolphin at 7.00 percent and 93.00 percent, respectively. For wahoo, Amendment 10 specifies commercial and recreational allocations at 2.45 percent and 97.55 percent, respectively. These allocations are applied to the respective species' revised total ACLs (equal to the proposed ABCs) using the third highest landings value during 1994-2007 to determine the new sector ACLs. The revised sector ACLs for dolphin and wahoo were derived from landings which include recreational landings from Monroe County, Florida, use MRIP's FES method, and SEFSC new weight estimation procedure. For dolphin, the Council has determined that the revised sector allocations and revised sector ACLs would avoid a decrease in the current pounds of dolphin available to either sector's ACL. For wahoo, the Council's intent is to maintain the current commercial ACL and allocate the remaining revised ACL to the recreational sector.

Amendment 10 and this final rule do not make any changes to the commercial AMs for dolphin or wahoo. The current recreational AMs for dolphin and wahoo were added to the FMP in 2014 through Amendment 5, and do not contain an in-season AM but instead require monitoring for persistence in recreational landings during the year following any recreational ACL overage. Further, the current recreational post-season AMs state that if the combined commercial and recreational landings exceed the combined commercial and recreational ACLs, and dolphin and wahoo are overfished, the recreational ACL for the following year will be reduced by the amount of the recreational overage in the prior fishing year, and the recreational fishing season will be reduced by the amount necessary to ensure recreational landings do not exceed the reduced ACL. The Regional Administrator (RA) will determine, using the best scientific information available, if a reduction in the recreational ACL and a reduction in the length of the following fishing season is unnecessary. These recreational post-season AMs for dolphin and wahoo are not viable because the post-season AMs would not be triggered as there is not a peer-reviewed stock assessment for dolphin and wahoo, and such assessment is unlikely to be conducted in the near future. Therefore, there is no likely method to determine their stock status. This final rule establishes a trigger to implement post-season AMs and specifies the post-season AMs that may be triggered for dolphin and wahoo and that are not based on their stock status.

In 2017, Regulatory Amendment 1 to the Dolphin and Wahoo FMP and the associated final rule implemented the current commercial trip limit for dolphin of 4,000 lb (1,814 kg), round weight, that is in effect once 75 percent of the commercial ACL is reached (82 FR 8820; January 31, 2017). Prior to reaching 75 percent of the commercial ACL, there is no commercial trip limit for dolphin. In 2004, the final rule for the original Dolphin and Wahoo FMP implemented the current commercial trip limit for wahoo of 500 lb (227 kg); and a commercial trip limit of 200 lb (91 kg) of dolphin and wahoo, combined, provided that all fishing on and landings from that trip are north of 39° N latitude, for a vessel that does not have a Federal commercial vessel permit for dolphin and wahoo but has a Federal commercial vessel permit in any other fishery.

In 2004, the final rule for the original Dolphin and Wahoo FMP also implemented the currently authorized commercial gear types in the dolphin and wahoo fishery in the Atlantic Exclusive Economic Zone (EEZ) as automatic reel, bandit gear, handline, pelagic longline, rod and reel, and spearfishing gear (including powerheads). A person aboard a vessel in the Atlantic EEZ that has on board gear types (including trap, pot, or buoy gear) other than authorized gear types may not possess dolphin or wahoo. In 2016, a commercial lobster association initially requested that the Council modify the fishing gear regulations to allow the lobster fishery's historical practice of harvesting dolphin by rod and reel while in the possession of lobster pots to continue. This final rule allows a person aboard a vessel in the Atlantic EEZ that possesses both a Federal Atlantic Dolphin/Wahoo commercial permit and any valid Federal commercial permit(s) required to fish using trap, pot, or buoy gear; or is in compliance with permit requirements specified for the spiny lobster fishery in 50 CFR 622.400 to retain dolphin and wahoo caught by rod and reel while in possession of such gear types.

In 2004, the original Dolphin and Wahoo FMP and associated final rule implemented the requirement for a vessel operator or a crew member to hold a valid operator permit (also called an operator card) for the Atlantic dolphin and wahoo commercial permit or a charter vessel/headboat permit for Atlantic dolphin and wahoo to be valid. The operator permit requirement was implemented to improve enforcement within the fishery, aid in data collection, and decrease costs to vessel owners from fishery violations by vessel operators. However, in actuality, the benefits of operator permits to improve enforcement have not occurred as they have not been widely used as an enforcement tool since implementation. Rather, other methods of fishery enforcement, such as vessel permits and landings, have been used by law enforcement within the fishery. Because the expected benefits from operator permits are not being realized, this final rule removes the requirement for operator permits in the dolphin and wahoo fishery.

The current dolphin recreational bag limit of 10 fish per person, not to exceed 60 fish per vessel in the Atlantic EEZ, was implemented by the original Dolphin and Wahoo FMP in 2004. Since then, interest in recreational harvest of dolphin has increased, and Council public testimony, especially from Florida and its constituents, has recommended a decrease in the recreational retention limits to further control recreational harvest. This final rule decreases the dolphin recreational vessel limit for charter vessels and private recreational vessels, excluding headboats. The dolphin individual recreational bag limit of 10 fish per person in the Atlantic EEZ remains unchanged.

The current total ACL for dolphin is 15,344,846 lb (6,960,305 kg), round weight. This final rule revises the total ACL for dolphin to 24,570,764 lb (11,145,111 kg), round weight, based on the ABC recommended by the Council's SSC. The revised total ACL is equal to the ABC as described in Amendment 10 and is based upon best scientific information available. Dolphin are highly fecund, spawn throughout a wide geographical range, and have an early age at first maturity with a short generation time. Therefore, dolphin's life-history could most likely support the increase in the total ACL. The Report to Congress on the Status of U.S. Stocks indicates dolphin is not overfished, and is not undergoing overfishing. Additionally, the Council noted that based on the last 20 years of total landings data for dolphin, it appears unlikely that harvest would consistently exceed the revised total ACL. Commercial landings are well tracked through electronic dealer reporting requirements, there is a commercial trip limit in place, and recreational landings for dolphin exhibit relatively low percent standard errors (PSE). The Council also noted that setting the ACL equal to the ABC may allow the dolphin portion of the dolphin and wahoo fishery to take advantage of years of exceptionally high abundance of dolphin.

The current commercial and recreational ACLs for dolphin are 1,534,485 lb (696,031 kg), round weight, and 13,810,361 lb (6,264,274 kg), round weight, respectively. These are based on the current commercial and recreational allocations of 10.00 percent and 90.00 percent, respectively. The revised commercial and recreational ACLs for dolphin are 1,719,953 lb (780,158 kg), round weight, and 22,850,811 lb (10,364,954 kg), round weight, respectively. The revised dolphin sector ACLs are based on the commercial and recreational allocations of 7.00 percent and 93.00 percent, respectively.

The current total ACL for wahoo is 1,794,960 lb (814,180 kg), round weight. This final rule revises the total ACL for wahoo to 2,885,303 lb (1,308,751 kg), round weight based upon the ABC recommended by the Council's SSC. The revised total ACL is equal to the ABC and is based upon best scientific information available. Wahoo also exhibit rapid growth rates, are highly migratory, and are sexually mature at an early age, so their life history also supports an increase in the ACL. The overfishing and overfished status of wahoo is unknown. However, recent studies found that wahoo did not show a negative decline in relative abundance in recent years. The Council noted that commercial landings for wahoo are also well tracked through electronic dealer reporting requirements, there is a commercial trip limit of 500 lb (227 kg), and that recreational landings for wahoo exhibit relatively low PSEs. The Council also noted that setting the ACL equal to the ABC will allow the wahoo portion of the dolphin and wahoo fishery to take advantage of years with exceptionally high abundance of wahoo.

The current commercial and recreational ACLs for wahoo are 70,542 lb (31,997 kg), round weight, and 1,724,418 lb (782,183 kg), round weight, respectively. These are based on the current commercial and recreational allocations of 3.93 percent and 96.07 percent, respectively. The revised commercial and recreational ACLs for wahoo are 70,690 lb (32,064 kg), round weight, and 2,814,613 lb (1,276,687 kg), round weight, respectively. The revised sector ACLs are based on the commercial and recreational allocations of 2.45 percent and 97.55 percent, respectively.

No biological effects are expected to the dolphin and wahoo stocks from these allocation changes because the revised sector ACLs would not change the revised total ACLs for dolphin and wahoo. The commercial sector for dolphin and wahoo has effective in-season AM already in place to help constrain commercial harvest, and this final rule contains modifications to the recreational post-season AMs to both stocks to reduce the risk that the recreational ACL is exceeded. In deciding on new sector allocations, the Council wanted to recognize the needs of the recreational sector for dolphin and wahoo which would exhibit higher landings than previously estimated, given the new accounting of recreational landings using MRIP's FES method. At the same time, the Council did not want to reduce the commercial ACLs on a pound basis for dolphin and wahoo and noted that the revised allocations and sector ACLs would strike a balance between the needs of both sectors.

This final rule revises the recreational AMs for dolphin. The current in-season closure and post-season AM based on stock status will be replaced. The revised recreational AM is a post-season AM that would be triggered in the following fishing year if the total ACL (commercial and recreational ACLs, combined) is exceeded. The Council's intent is to avoid closing recreational harvest in-season and extend maximum fishing opportunities to the recreational sector without triggering the recreational AM, as long as the commercial sector is under harvesting its sector ACL. The revised recreational AM trigger will also help ensure sustainable harvest by preventing the total ACL from being exceeded consistently. Once triggered, the revised post-season recreational AM would reduce the length of the following recreational fishing season by the amount necessary to prevent the recreational ACL from being exceeded in the following year. However, the length of the recreational season would not be reduced if the RA determines, using the best available science, that the season reduction is not necessary to keep the recreational ACL from being exceeded in the following year. The Council noted that there would be a relatively low likelihood of the recreational AM for dolphin being triggered, because the revised recreational ACL is based on the updated ABC, which is set at a relatively high level of landings that is not often observed in the dolphin portion of the dolphin and wahoo fishery. Additionally, any determination that the total ACL had been exceeded would allow for the monitoring of landings during the following season to evaluate whether the elevated landings from the previous fishing year are continuing to persist. That information would inform decisions on whether a fishing season closure would actually need to occur to constrain harvest to the ACL.

This final rule revises the recreational AMs for wahoo. The current in-season closure and post-season AM based on stock status would be replaced. The revised recreational AM is a post-season AM that would be triggered in the following fishing year if the recreational ACLs are constant and the 3-year geometric mean of landings exceeds the recreational ACL. As described in Amendment 10, whenever the recreational ACL is changed, a single year of landings would be used for an overage determination, beginning with the most recent available year of landings, then a 2-year average of landings from that single year and the subsequent year, then a 3-year average of landings from those 2 years and the subsequent year, and thereafter a progressive running 3-year average, calculated as the geometric mean, would be used to determine if the recreational AM trigger has been met. The Council noted this approach would allow the recreational AM to be triggered if the ACL was exceeded on a consistent basis. A 3-year geometric mean would help to smooth the data and potentially avoid implementing restrictive recreational post-season AMs unnecessarily if there was an anomaly in the recreational landings estimates during those 3 years that was not accurately reflecting an actual increase in the harvest of wahoo. It was also noted by the Council that the geometric mean is less sensitive to being affected by abnormally large variations in landings estimates than the arithmetic mean or a single year point estimate. Once triggered, the post-season recreational AM would reduce the length of the following recreational fishing season by the amount necessary to prevent the recreational ACL from being exceeded in that year. However, the length of the recreational season would not be reduced if the RA determines, using the best available science, that a fishing season reduction is not necessary to keep the recreational ACL from being exceeded in the following year. Additionally, any determination that the ACL had been exceeded would allow for the monitoring of landings for the following season to evaluate whether the elevated landings from the previous year are continuing to persist. That information would inform decisions on whether a late season harvest closure would actually need to occur. The Council also noted the relatively equitable distributed effects of a shortening of the recreational season, as wahoo are often targeted and caught late in the year in many areas of the Atlantic region.

For vessels with a commercial permit for Atlantic dolphin and wahoo, under the current trip limits, dolphin and wahoo may only be harvested and possessed with the authorized gear types onboard. These gear types are automatic reel, bandit gear, handline, pelagic longline, rod and reel, and spearfishing gear. Possession on the vessel of any other gear type results in a prohibition of the possession of any dolphin or wahoo.

American lobster fishers requested to the Council that they be allowed to possess dolphin or wahoo while they moved from one lobster pot to the next. The Council considered an authorized gear exemption based on a request from the Atlantic Offshore Lobstermen's Association to allow the historical practice of harvesting dolphin with rod and reel while in the possession of lobster pots to continue and decided to take a broader approach to allow vessels fishing with trap, pot, or buoy gear to possess dolphin or wahoo as long as the dolphin or wahoo were harvested with rod and reel gear. This final rule allows for a new category of commercial trip limits for dolphin and wahoo based on as authorized gear exemption for trap, pot, and buoy gear. This final rule will allow for the harvest and retention of 500 lb (227 kg), gutted weight, of dolphin and 500 lb (227 kg) of wahoo, on board a vessel in the Atlantic EEZ that possesses both an Atlantic Dolphin/Wahoo commercial permit and any valid Federal commercial permit(s) required that allow a vessel to fish using trap, pot, or buoy gear or is in compliance with the permitting requirements for the spiny lobster of the Gulf of Mexico and South Atlantic as described at 50 CFR 622.400, caught by rod and reel while in possession of such gear types. The commercial trip limits under the authorized gear exemption may not be combined with the current commercial trip limits for commercially permitted dolphin and wahoo vessels. The Council determined that this additional regulatory flexibility would have positive economic effects within the fishery while also limiting the potential for any unforeseen significant increases in commercial landings through the specific setting of the 500 lb (227 kg), gutted weight, trip limit.

Currently, an operator of a vessel with either a commercial permit or a charter vessel/headboat permit for dolphin and wahoo is required to have an operator permit. Such operator permit must be onboard the vessel and the vessel owner is required to have a permitted operator onboard the vessel while it is at sea or offloading. This operator permit requirement was implemented in 2004, through the original FMP for dolphin and wahoo, as a way to assist in law enforcement efforts within the fishery by holding the vessel operator accountable for any violation of regulations and to aid in data collection (69 FR 30235; May 27, 2004).

This final rule removes the current requirements for operator permits and permitted operators for both the dolphin and wahoo commercial and charter vessel/headboat permitted vessels. At the March 2016 Council meeting, the NMFS Office of Law Enforcement (OLE) gave a presentation on operator permits, and stated that the operator permits are not used extensively by OLE or their law enforcement partners. The Council noted the potential value for operator permits in aiding law enforcement efforts, but the inconsistent requirements between Atlantic fisheries greatly diminishes this utility. Public testimony indicated that operator permits are rarely checked by enforcement personnel during fishing trips and are burdensome for fishermen to renew and maintain. The Council determined that the limited use of operator permits in the dolphin and wahoo fishery did not outweigh the cost to fishermen to obtain the permit, and removing this requirement would yield positive social, economic, and administrative benefits.

For Atlantic dolphin, the current bag and possession limits are 10 fish per person, not to exceed 60 fish per vessel, whichever is less, except onboard a headboat where the limit is 10 per paying passenger. This final rule decreases the recreational dolphin vessel limit from 60 fish per vessel to 54 fish for charter vessels and private recreational vessels, excluding headboats, in the Atlantic EEZ. The recreational bag limit for private recreational anglers and passengers onboard charter vessels and headboats will remain at 10 fish per person in the Atlantic EEZ. As a result of the possession limit reduction in this final rule, the total estimated annual reduction in recreational landings is expected to be 114,051 lb (51,733 kg), round weight. Data analysis in Amendment 10 demonstrated that most of the recreational trips in the Atlantic EEZ targeting dolphin harvested less than 10 fish per vessel. Therefore, as a result of the very small proportion of recreational trips that might reach the revised vessel limit of 54 fish per vessel, no change in fishing activity or behavior is anticipated. The Council noted that one of the goals of the Dolphin and Wahoo FMP is to maintain a precautionary approach to management. While there is no Southeast Data and Assessment Review stock assessment for dolphin and the stock is listed as not overfished or undergoing overfishing, the Council heard public testimony, particularly from anglers in Florida, that dolphin abundance appears to be low and they are concerned over the health of the dolphin stock and the associated fishery. The Council determined that a coast-wide reduction in the vessel limit was appropriate to maintain consistency of regulations across the region in the retention limits for dolphin and noted that such a change in retention limits would lead to more substantial harvest reductions than a Florida-specific or regional approach.

The current ABCs for dolphin and wahoo were added to the FMP in 2014 through Amendment 5, and are based on the Council's SSC's recommendations using the third highest landings value during 1999-2008. These landings did not include recreational landings from Monroe County, Florida, and were based on recreational data from the MRIP CHTS method. In April 2020, the Council's SSC recommended new ABC levels for dolphin and wahoo using the third highest landings value during 1994-2007. These landings include recreational landings from Monroe County, Florida, and used MRIP's FES method, which is considered more reliable by the Council's SSC, the Council, and NMFS, and more robust compared to the MRIP CHTS survey method. The new ABC recommendations within Amendment 10 for dolphin and wahoo are also based on the new weight estimation procedure from the SEFSC that uses a 15 fish minimum sample size and represents the best scientific information available.

As discussed, Amendment 10 revises the commercial and recreational allocations for both dolphin and wahoo. For dolphin, the current commercial and recreational allocations are 10.00 percent and 90.00 percent, respectively. The new dolphin sector allocations result in commercial and recreational allocations of 7.00 percent and 93.00 percent, respectively. For wahoo, the current commercial and recreational allocations are 3.93 percent and 96.07 percent, respectively. The new wahoo sector allocations result in commercial and recreational allocations of 2.45 percent and 97.55 percent, respectively.

As discussed, in deciding on new sector allocations, the Council wanted to recognize the needs of the recreational sector for both dolphin and wahoo which would exhibit higher landings than previously estimated with the new accounting of recreational landings using MRIP's FES method. At the same time the Council did not want to reduce the commercial ACLs on a pound basis for dolphin and wahoo and noted that the proposed allocations and sector ACLs would strike a balance between the needs of both sectors.

The goals and objectives of the Dolphin and Wahoo FMP were implemented through the original fishery management plan in 2004 and have not been revised since then. In 2016, the Fisheries Allocation Review Policy (NMFS Policy Directive 01-119) encouraged the use of adaptive management with respect to allocation revisions, and recommended periodic re-evaluation and updating of the management goals and objectives of any FMP to ensure they are relevant to current conditions and needs. Amendment 10 revises these Dolphin and Wahoo FMP goals and objectives in response to the 2016 Fisheries Allocation Review Policy and ensures the goals and objectives reflect the current dolphin and wahoo fishery. Specifically, the revised goals and objectives seek to manage the dolphin and wahoo fishery using a precautionary approach that maintains access, minimizes competition, preserves the social and economic importance of the fishery, as well as promotes research and incorporation of ecosystem considerations where practicable.

NMFS received 52 comment submissions during the public comment period on the notice of availability and proposed rule for Amendment 10. Comment submissions were from the general public, for-hire vessel owners, sport-fishing associations, businesses, and non-governmental organizations. The majority of the comments were against one or more of the proposed actions for dolphin. One of the comments was submitted jointly by various entities and included over 6,000 individual signatories on a petition against approval of Amendment 10 and requested that NMFS instead implement more restrictive management measures for dolphin. NMFS acknowledges and agrees with the comments in favor of the actions in the notice of availability and proposed rule from the general public, recreational sport-fishing interests, and commercial fishing interests. Comments in opposition, and those that requested additional information about the actions contained in the notice of availability and proposed rule, are summarized by topic area below, along with NMFS' responses.

Comment 1: The final recommendations of the Council on Amendment 10, along with underlying conclusions and recommendations of its SSC for the revised ABCs, are not based upon the best scientific information available. For both dolphin and wahoo, the proposed ABC recommendations ignore the most recent 14 years of landings data. For dolphin specifically, the downward population trend in the fishery does not support an increase in the ABC, total ACL, and sector ACLs, in the absence of a stock assessment.

Response: NMFS disagrees. The Council's SSC recommended the ABC for dolphin and wahoo based on Level 4 of their ABC Control Rule for un-assessed species, which is a general procedure used by the SSC for species for which an increase (beyond current range of variability) in catch is not expected to result in a decline of the stock. The SSC had many robust discussions over the range of years to use for recommending the revised ABC to the Council and decided to use years that were more representative of the fishery's historical tendency to harvest these species, without regulations such as ACLs in place at that time. The SSC then evaluated the landings within that time period, for any indication that those average landings had been potentially detrimental to the health of the stock. The SSC did not use the 2008 fishing year in the range of years because of the economic recession at that time. The ACLs for dolphin and wahoo were originally implemented in 2012 (77 FR 15916; March 16, 2012). The 2015 fishing year was a year of unusually high landings of dolphin that resulted in an early closure of the commercial sector (80 FR 36249; June 24, 2015). The SSC also sought to avoid reducing the commercial or recreational sectors' harvest opportunities for dolphin and wahoo absent any adverse biological risk to the stock, especially given the highly migratory nature of the species and its life-history, including high fecundity. Thus, the SSC recommended the Council use the third highest landings value for the time series of 1994-2007. The proposed ABC recommendations for dolphin and wahoo also use MRIP FES data, incorporate recreational landings from Monroe County, Florida, updated commercial landings data, and SEFSC new weight estimation procedures. The ABC recommendations and resulting ACLs for dolphin and wahoo adhere to the SSC's recommendations, and their biological, economic, social, and administrative effects were analyzed using the past 5 years of data and then reviewed by the SSC, NMFS Southeast Regional Office, Council, and SEFSC, who certified Amendment 10 is based on the best scientific information available.

NMFS acknowledges that there is no peer-reviewed stock assessment for dolphin or wahoo (such as the Southeast Data, Assessment, and Review assessment process). However, dolphin are highly fecund, spawn year-round throughout a wide geographical range, have an early age at first maturity, and a short generation time. Therefore, dolphin's life-history could most likely support the increase to the ABC (and ACL), even without a stock assessment.

Further, the difference in accounting for recreational landings under the older MRIP CHTS and newer MRIP FES methods is a factor in the increase in the catch limits. When compared to the most recent 5-year and 3-year average landings, analysis in Amendment 10 revealed the new ACLs for dolphin are not expected to be reached. If they are reached, the current in-season commercial AMs and revised recreational AMs would help to reduce the risk of any overages that could possibly occur in the future.

Comment 2: NMFS should further reduce the recreational vessel limit for dolphin, as the proposed reduction from 60 fish per vessel to 54 fish per vessel in Amendment 10 is not enough to protect the stock.

Response: Despite the lack of a dolphin stock assessment or other biological information indicating a need to reduce dolphin harvest, the Council was responsive to public input expressing harvest related concerns. In Amendment 10, the Council considered a number of vessel limit alternatives for dolphin, including the current 60 dolphin per vessel limit and reduced limits of 54, 48, 42, 40, and 30. Reduced recreational vessel limits for dolphin were particularly recommended by constituents from Florida. The Council, in deciding what vessel limit alternative to select, balanced the economic hardship that any reductions would cause the for-hire industry, especially in North Carolina, with the need to facilitate achieving optimum yield within the fishery. Further, no evidence indicates that, if dolphin were not harvested in North Carolina and areas northward, they would subsequently survive and make it back to Florida. To the contrary, peer-reviewed literature actually indicates movement of dolphin from the Florida Keys to North Carolina and northward. Analysis in Amendment 10 showed that larger reductions in recreational harvest through vessel limit changes was best achieved when considering the entire Atlantic (Maine to Florida on the Atlantic side), and not just Florida, or even Florida, Georgia, and South Carolina combined. In Amendment 10, the Council selected the revised dolphin vessel limit of 54 fish to effect a vessel limit reduction, while balancing the overall needs of the fishery throughout its full range.

Comment 3: Recreational and commercial landings of dolphin have been in decline (especially in the past 5 years), and reduced quantities of larger sized dolphin in the Florida Keys have been observed in past 5-10 years. NMFS and the Council should consider alternative, more proactive methods to conserve dolphin such as: Reducing private recreational bag limit; extending the applicability of the current minimum size limit of 20 inches (50.8 cm), fork length (FL) to all applicable geographical areas (Maine to east coast of Florida), or increasing the minimum size; implementing a lower commercial trip limit; and banning the use longline gear for the commercial sector.

Response: NMFS is aware of reports of the decline in dolphin availability, especially large-sized dolphin in the Florida Keys. This could be due to the highly migratory fish moving out of the area or going deeper in search of suitable temperature and food availability. Recent peer-reviewed literature supports behavioral thermoregulation by dolphin, and their northern movement in response to increasing sea surface temperature. Studies have shown that seasonal abundance of dolphin along the east coast of the U.S. and the Gulf of Mexico is heavily influenced by sea surface temperature and distance to temperature fronts, chlorophyll-a concentration, and Sargassum mats. The Mid-Atlantic and New England Councils have not reported a decline in dolphin availability and large sized fish. In fact, some commenters on the notice of availability and proposed rule for Amendment 10 stated that the perceived paucity of dolphin availability and large sized individuals off Florida was related to warming ocean temperatures and that the fish are not returning as far south as they used to 15 years ago.

Comment 4: NMFS should not approve the proposed post-season recreational AM for wahoo. Creating a shorter fishing season would incentivize a race by recreational fishers to meet the recreational ACL and would represent a disadvantage to fishers whose livelihoods depend on a full fishery season.

Response: NMFS disagrees. The current recreational AM for wahoo which is in place prior to this final rule states that, if recreational landings exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for persistence in increased landings. If the recreational ACL is exceeded, it will be reduced by the amount of the recreational overage in the following fishing year and the recreational season will be reduced only if the species is overfished and the total ACL is exceeded. This current AM cannot be triggered, because there is no stock assessment for wahoo and therefore its stock status is unknown and cannot be determined to be “overfished.” There is also no recreational in-season AM for wahoo proposed in Amendment 10. Therefore, a functional and effective post-season AM is required to prevent possible adverse biological effects to the wahoo stock if the recreational ACL is exceeded. The revised post-season recreational AM for wahoo would reduce the length of the following recreational fishing season by the amount necessary to prevent the recreational ACL from being exceeded in the following year. However, the length of the recreational season will not be reduced if the RA determines, using the best available science, that it is not necessary. The economic effects of a reduced fishing season would depend on the severity of any season reduction, the timing, and the availability of other species that could be suitable substitutes for wahoo. Fishers could also determine the subsequent trade-offs between reduced fishing seasons or lower recreation bag/vessel limits and longer seasons. The possibility of a shorter fishing season occurring as a result of the new recreational AM being implemented could work to dis-incentivize fishers from exceeding the recreational ACL in the first place and thereby help to protect the stock and fishing opportunities.

NMFS notes that in March 2022, Florida approved a final rule for the state with the following actions for dolphin that will be effective May 1, 2022, in state waters only: A recreational harvester may not harvest, land, or possess per day more than 5 dolphin; recreational harvesters aboard a private recreational vessel may not collectively possess or land more than 30 dolphin, regardless of the number of licensed or license-exempt persons onboard; and the daily bag and possession limit for captains and crew on for-hire vessels is zero.”

NMFS also notes that size limits, commercial trip limits, and longline gear changes were outside the scope of actions considered by the Council in Amendment 10. NMFS has decided to respond in a general manner to these comments in this final rule given the volume of comments received and interest concerning these issues, even though Amendment 10 does not contain that information. This serves to better inform the public of some of the dolphin regulations.

While a number of commenters requested that a commercial trip limit be put in place, current Federal regulations do in fact already include a dolphin commercial trip limit. The commercial trip limit of 4,000 lb (1,814 kg), round weight, comes into effect when 75 percent of the commercial ACL is reached. With respect to comments requesting changes to the recreational bag limits for dolphin, prohibiting the retention of dolphin by captain and crew, extending the current minimum size limit to all geographical applicable areas (Maine to east coast of Florida), as well as the comments regarding additional changes to the vessel limit, the Council is considering the development of a subsequent amendment for dolphin. The possible new amendment could consider these items for changes by the Council. The commenters' range of suggestions for recreational bag limits (8, 5, or 3 per person), vessel trip limits (54, 40, or 30 fish), minimum size limits (extending range of current limit applicability and increasing the limit to 24 inches (61 cm), FL, could be used as alternatives for these actions if they were to be included in an amendment. The continued use of longline gear by the commercial sector for dolphin may also be considered by the Council in a future amendment.

Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with Amendment 10, the FMP, the Magnuson-Stevens Act, and other applicable law.

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

The Magnuson-Stevens Act provides the statutory basis for this final rule. No duplicative, overlapping, or conflicting Federal rules have been identified. A description of this final rule, why it is being implemented, and the purposes of this final rule are contained in the SUMMARY and SUPPLEMENTARY INFORMATION sections of this preamble. The objectives of this final rule are to base conservation and management measures on the best scientific information available and increase net benefits to the Nation, consistent with the Magnuson-Stevens Act and its National Standards.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) during the proposed rule stage that this final rule, if adopted, would not have a significant economic impact on a substantial number of small entities. NMFS did not receive any comments from SBA's Office of Advocacy on the certification in the proposed rule. NMFS did receive three comments from the public on the economic analysis in Amendment 10. Two comments suggested that Amendment 10 would adversely affect the economy. NMFS disagrees with these comments and believes that Amendment 10 would result in net economic benefits to the Nation. Based on NMFS's analysis, NMFS expects that Amendment 10 would result in net economic benefits of between $9.16 and $10.17 million (in 2019 dollars) per year, on average, over the next 5 years. The comments provided no specific information that would provide a basis to alter the estimated net benefits.

One comment suggested that Amendment 10 would disproportionately benefit the commercial sector relative to the recreational sector. NMFS disagrees with this comment because the analysis conducted by NMFS indicates that nearly 89 percent of the increase in net economic benefits to the Nation associated with Amendment 10 is expected to accrue to the recreational sector, while about 11 percent of the increase is expected to accrue to the commercial sector. The comment provided no specific information that would provide a basis to alter these estimates, and therefore NMFS continues to believe that the commercial sector would not disproportionally benefit from this final rule.

No changes to this final rule were made in response to public comments. The factual basis for the certification was published in the proposed rule and is not repeated here. Because this final rule is not expected to have a significant economic impact on a substantial number of small entities, a final regulatory flexibility analysis is not required and none has been prepared.

This final rule contains a revision to existing collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This final rule revises existing requirements for the collection of information approved under OMB Control Number 0648-0205, Southeast Region Permit Family of Forms. NMFS is removing the requirements for an operator permit in the commercial and for-hire portions of the Atlantic dolphin and wahoo fishery as specified by 50 CFR 622.270(c). For the Federal Permit Application for Southeast Region Issued Operator Card, NMFS estimates this final rule will decrease the annual number of respondents to 74 and decrease the annual number of responses to 74. Further, NMFS estimates the annual burden hours will decrease to 37 hours, and the annual burden cost will decrease to $3,774. Public reporting burden for the Federal Permit Application for Southeast Region Issued Operator Card is estimated to average 30 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

NMFS invites the public and other Federal agencies to comment on any proposed and continuing information collections, which helps NMFS assess the impact of information collection requirements and minimize the public's reporting burden. Written comments and recommendations for this information collection should be submitted on the following website: www.reginfo.gov/public/do/PRAMain. Find this particular information collection by using the search function and entering the title of the collection or the OMB Control Number 0648-0205.

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

For the reasons set out in the preamble, 50 CFR part 622 is amended as follows: