I. Background A. Statutory Authority

Section 4011 of the Agriculture Improvement Act of 2018 (Pub. L. 115-334, the “Farm Bill”) amended Section 11 of the Food and Nutrition Act of 2008 (“the Act”) (7 U.S.C. 2020) by creating a new subsection (x). Section 11(x) of the Act requires that “[t]he Secretary . . . establish an interstate data system, to be known as the `National Accuracy Clearinghouse,' to prevent multiple issuances of supplemental nutrition assistance program benefits to an individual by more than 1 State agency simultaneously.” The Act further requires the Secretary to promulgate regulations to prevent multiple issuances of SNAP benefits, including specific mandates to “incorporate best practices and lessons learned from the pilot program under Section 4032(c) of the Agricultural Act of 2014” and to “require a State agency to take appropriate action, as determined by the Secretary, with respect to each indication of multiple issuance of supplemental nutrition assistance program benefits, or each indication that an individual receiving such benefits in 1 State has applied to receive such benefits in another State.”

Section 4009 of the Farm Bill amended Section 11 of the Act. As amended, Section 11(e) of the Act states “that for a household participating in the supplemental nutrition assistance program, the State agency shall pursue clarification and verification, if applicable, of information relating to the circumstances of the household received from data matches for the purpose of ensuring an accurate eligibility and benefit determination, only if the information . . . is obtained from data matches carried out under subsection (q), (r), or (x).”

The Department is issuing this interim final rule at the direction of Congress. The Act, in a sub-section entitled “Issuance of Interim Final Regulations” provides that “not later than 18 months after the date of enactment of the Agriculture Improvement Act of 2018, the Secretary shall promulgate regulations (which shall include interim final regulations) to carry out this subsection . . .” 7 U.S.C. 2020(x)(3). The Department will issue a final rule after considering public comments and obtaining additional information during the initial implementation.

Under existing Program rules, an individual may not receive SNAP benefits from more than one State agency that administers the Program (henceforth referred to as State or State agency) for the same benefit month. Regulations at § 273.3 require that a household live in the State where it files a SNAP application and stipulate that no individual may participate as a member of more than one household or in more than one project area ( i.e., a State) in any month, unless an individual is a resident of a shelter for battered women and children as defined at § 271.2. Program regulations at § 273.2(f)(1)(vi) also require that State agencies verify applicants' residency before certifying a household initially applying.

Current SNAP regulations at § 272.4(e) also require State agencies to establish systems to prevent individuals from participating in more than one household within one State (duplicate participation). The regulation stipulates that State agencies match against names and Social Security numbers at a minimum, and other identifiers such as birth dates or addresses as appropriate.

Per § 272.2(d)(1)(x), State agencies must submit a claims management plan as part of their State plan of operations, for informational purposes only, that describes their procedures for establishing and collecting overpayment claims. If duplicate participation is identified, State agencies follow the regulations at § 273.18 to establish and collect claims for the amount of benefits overpaid. These claim regulations provide State agencies with flexibility to compromise or terminate claims under certain conditions and provide States with collection options. SNAP also participates in the Treasury Offset Program and provides assistance to help State agencies collect unpaid balances.

An intentional Program violation, defined at § 273.16(c), occurs when an individual intentionally makes a false or misleading statement or withholds facts; or an individual commits any act that constitutes a violation of the regulations for the purpose of trafficking SNAP benefits, which is the exchange of benefits for cash or other considerations. The regulations at § 273.16(a) provide that State agencies shall be responsible for investigating any case of alleged intentional Program violation and ensuring that cases are acted upon, as appropriate, either through administrative disqualification hearings or referral to a court of appropriate jurisdiction. Furthermore, Section 6(j) of the Act states that members of a household who make a fraudulent statement or representation about their residence so as to receive multiple benefits simultaneously must be disqualified for a period of 10 years.

However, an instance of duplicate participation does not necessarily indicate an intentional Program violation or fraud. For example, an individual may have recently moved between States and inadvertently failed to close their case, or a State agency failed to timely close a case for an individual that it knew had moved. The timeframe for when an individual must report a move depends on the reporting system to which the State agency has assigned the individual. However, prior to receiving benefits in a new State, the individual's existing case must either be closed or the individual must be removed from the previous household's existing case as an individual cannot participate in more than one project area in any given month. When a State agency receives a report of an out of State move, it must take action to close the case or remove the individual from a case in a timely manner. Failure by an individual to report a move, or a State agency to take prompt action to remove an individual from SNAP when reported, may lead to instances of duplicate participation but would not be considered an intentional Program violation or fraud. In these instances, the individual is not intentionally receiving benefits from more than one State agency simultaneously. Comments from the Congressional record regarding the Farm Bill  1 state, “We know that duplicate participation, when it does occur, is rarely intentional fraud, but rather is a result of a household or household member simply moving from one State to another and not successfully disenrolling in their previous home State. This could be caused by households not being able to get through to a call center to report the move or a State not taking the proper action to close the case or remove the household member [after a move is reported].”

Therefore, in order to determine whether fraud has occurred, a State agency is responsible for investigating and either: (1) determining through an administrative disqualification hearing if an individual committed an intentional Program violation or (2) referring a case for prosecution for fraud. Additional comments from the Congressional record on the Farm Bill further state that “without evidence of a client's intent to defraud the program, State agencies should assume that dual enrollment discovered through the NAC is unintentional”. 2 Given that the regulatory definition of an intentional Program violation at § 273.16(c) requires that acts be committed intentionally, this is in keeping with the current Program operations. These Congressional Record comments also align with Section 6(j) of the Farm Bill and § 273.16(b)(5), both of which focus on an individual making fraudulent statements or representations concerning their residency. Thus, a State agency may only determine an individual has done this when there is evidence that the applicant knowingly engaged in duplicate participation with the intent to collect SNAP benefits in more than one State simultaneously. This is opposed to instances of administrative oversight, such as an applicant reporting a move and the State agency failing to close the case, which do not arise as a result of an individual's fraudulent statements or representations.

Individuals are prohibited from participating in SNAP as a member of more than one household or in more than one project area, except for residents of a shelter for battered women and children. Per § 272.4(e), State agencies already use existing processes to prevent duplicate participation within their States including, but not limited to validation of Social Security numbers, verification of identity and residency, and matching personal identifiers against its caseload. Additionally, many State agencies rely on a question on the SNAP application about receiving benefits in another State in order to prevent duplicate participation. An applicant's affirmative response to this question starts a manual process that can involve emailing or calling another State agency to inquire about the applicant, which may result in delays in the application process and prevent the applicant from receiving their benefits in a timely manner. A lack of comprehensive and automated data sharing between State agencies can result in duplicate participation, as State agencies will have to determine eligibility within the application processing timeframe before verification from the previous project area is received. A manual process of resolving instances of duplicate participation also requires waiting to issue benefits because another State agency failed to take action to close a case, which can result in a delay of benefit determination. These challenges highlight the need for enhanced and required communication and data sharing between State agencies which are discussed later in this rule.

Although SNAP regulations do not mandate it, most State agencies use the Department of Health and Human Services' Public Assistance Reporting Information System (PARIS) to identify individuals who may be current SNAP participants in more than one State. State agencies submit data to PARIS on varying schedules; some provide information once per quarter while others submit less often. PARIS checks for matches on a quarterly basis. Due to its quarterly matching frequency, PARIS can only help State agencies identify duplicate participation after-the-fact and does not enable State agencies to prevent it from occurring. For example, there could be up to three months of duplicate participation before the State agency receives a match, resulting in the establishment of larger claims for the individual to repay than if the match had been detected immediately. Additionally, because PARIS conducts data matches on State-submitted data at a frequency of once per quarter or less, a match merely indicates that an individual was active in two States during the months being matched, but this does not necessarily indicate benefit receipt occurred simultaneously in a single month. For example, if duplicate participation is identified during the match of October, November, and December data, it's possible that the individual was participating in one State in October and another State in November and December. Determining any overlap in benefit issuance in such an instance typically involves a manual process and can be burdensome to State agencies to resolve.

These existing processes that identify overpaid benefits after-the-fact may have unintended consequences for households, oftentimes including unnecessary household burden, and can result in poor or inconsistent customer service. Because of the delays associated with after-the-fact matches and manual processes, there is an increased likelihood that an applicant who reported a move could still be flagged for duplicate participation and must navigate the claims recovery process even though they complied with Program rules.

The following paragraphs provide context surrounding the establishment of the National Accuracy Clearinghouse (NAC) pilot, its independent evaluation, lessons learned, final points, and Department's expectations for the NAC moving forward. The business process and system discussion in this section references how the NAC pilot operates, which is separate and different from the nationwide NAC being established by this rule. The nationwide NAC will be discussed in Section II.

Beginning in 2013, the State of Mississippi established a pilot that was funded by the Office of Management and Budget's (OMB) Partnership Fund for Program Integrity Innovation. 3 The pilot was designed to test the feasibility of improving upon existing processes by establishing a real-time interstate data matching system to prevent duplicate participation, this system is called the NAC pilot. The NAC pilot data matching operations began in June 2014 and consisted of five participating State agencies: Alabama, Florida, Georgia, Louisiana, and Mississippi. The NAC pilot is still in operation under administrative waivers. However, there are only four State agencies still operating the pilot under administrative waivers: Alabama, Florida, Georgia, and Mississippi.

As part of the pilot, each participating State agency submits a daily file of its entire SNAP participant caseload, which is then integrated into a list of all SNAP participants receiving benefits in the participating States. State agencies query the system when they receive SNAP applications or add new members to an existing household. The NAC pilot checks these individuals against the list of active SNAP participants in the other pilot States. When a State agency identifies that an applicant is receiving benefits in another State, the SNAP State agency staff in the applicant State contact the State agency where the applicant is already receiving benefits to close the individual's case or remove the individual from the household. Once the applicant's out-of-State case is closed or the individual is removed from the household, the State agency receiving the application can move forward with the certification process. If the applicant is checked against the NAC pilot's list of active SNAP participants in other States and the applicant is not identified as receiving SNAP benefits elsewhere, then the State agency proceeds with the certification process as usual.

The NAC pilot allowed for estimation on the prevalence of interstate duplicate participation in the five participating States. Analysis of data from before the NAC pilot began operations suggested that between 0.09 percent and 0.17 percent of the individual SNAP participants active in each pilot State's caseload in May 2014 were also receiving benefits in another one of the pilot States in May 2014. The Department notes, however, that this data only represent instances of interstate duplicate participation where both States issuing benefits were participating in the pilot. Accordingly, the NAC pilot could not discover any potential matches between a State participating in the NAC pilot and a State that was not participating in the NAC pilot. This limited ability to detect matches suggests that the nationwide NAC will only increase positive match frequency when new State agencies are added to the system. The positive match frequency is also expected to decrease gradually as State agencies adopt the nationwide NAC and NAC business processes implemented by this rule.

Pursuant to Section 4032(c) of the Agricultural Act of 2014, an independent evaluation assessed the NAC pilot's detection and prevention of duplicate participation between May 2013 and August 2015 and reported on variations in implementation among the five State agencies. As the NAC pilot focused exclusively on interstate duplicate participation, intrastate duplicate participation was not assessed as a part of the NAC pilot evaluation. Overall, the evaluation found a relatively low occurrence of duplicate participation—ranging from less than one-tenth of one percent of Louisiana's eligible individuals in May 2014 to just below two-tenths of one percent of Georgia's. 5 The evaluation report indicated that a significant percentage of duplicate participation occurs when a new member is being added to a household with an existing case. As presented in Table 19 of the evaluation report, an average of 47 percent of duplicate participation instances found were from individuals residing in households where all members are not duplicate participants. The Department interprets these occurrences of duplicate participation as instances where administrative processes need to be improved and better customer service provided, particularly for individuals or households that move between States. It is likely that these individuals either failed to report their move or were not promptly disenrolled by the State agency. Table 21 further emphasizes the need for greater customer service by evaluating claims data on cases including duplicate participants identified at initial matching of the NAC pilot. Out of the claims data reported, more than 27 percent of claims were due to State agency error or inadvertent client error. Based on this information, the Department determines that there is a greater need for enhanced customer service for applicants and participants who move between States or households, as well as better training for eligibility workers to identify these individuals and prevent inadvertent household errors and State agency errors that may result in the establishment of a claim and added burden.

Although the evaluation found that the rate of duplication participation is infrequent, the report found a 46 percent reduction in the number of SNAP participants receiving benefits in more than one pilot State after one year of NAC pilot operation. Each of the five States experienced a reduction in duplicate participation, but the scale of the reductions varied. Two of the five States had 81 percent fewer instances of SNAP participants receiving benefits in another State compared to pre-NAC pilot levels (for example, from a monthly average of 882 instances down to 166 in Mississippi), while another two saw reductions of less than 30 percent (for example, from a monthly average of 3,383 to 2,446 instances in Florida). The Department believes that improving administrative processes will further diminish households' inadvertent duplicate participation.

The NAC pilot evaluation also measured each State agency's effectiveness in using the NAC pilot to prevent duplicate participation, comparing positive matches generated by queries regarding SNAP applicants or new household members to subsequent positive indications of active duplicate participation. Matches on SNAP applicants or new household members that subsequently became active duplicate participants indicate that the information from the NAC pilot failed to prevent an individual from receiving benefits from more than one State agency simultaneously due to participant State agencies not taking appropriate actions when notified of a match and/or a lack of communication between State agencies. Again, there was significant variation in how effectively the five pilot State agencies used the NAC pilot to prevent duplicate participation. In two of the five States, less than 10 percent of individuals identified in NAC pilot matches resulted in subsequent duplicate participation. Other pilot State agencies were not as effective. The least effective State agency consistently saw about 40 percent of instances of individuals identified in matches resulting in duplicate participation.

The overall findings from the evaluation indicate that the rate of duplicate participation is low; that when it does occur, it is sometimes inadvertent, such as a State agency failing to promptly disenroll an individual that had moved between States and/or households, and not fraud; and that use of the NAC can effectively reduce duplicate participation if State agencies apply lessons learned from the pilot as they implement the nationwide NAC data match. The pilot State agencies with larger reductions in duplicate participation were the same State agencies with better rates of preventing duplicate participation. The NAC pilot evaluation found that these State agencies were more successful largely due to the extent that they automated NAC processes. They used web services to link their State systems with the NAC pilot. This enabled real-time querying of the NAC pilot in a manner similar to a manual portal query, where eligibility workers checked for NAC matches by manually inputting data, with the added advantage of limiting eligibility worker intervention to only those instances in which a match is generated. For example, if a State agency eligibility worker needs to process an application on the same day the application is received, the web services approach allows for sending and receiving information from the NAC pilot that same day. Pilot States that were less effective in terms of preventing and reducing duplicate participation used a batch process model where information is not returned until the following day. This sometimes led to the certification of an application before the caseworker became aware that there was a positive match from the NAC pilot indicating an active case in another State.

The more successful States in the NAC pilot also integrated the pilot with their SNAP eligibility systems and into existing workflows. State agency eligibility workers received flags to take additional steps only in the event of a positive match, rather than having to check the NAC pilot portal for every application they processed and every person they added to a case.

The differences in business processes and systems integration not only provide at least a partial explanation for the varied outcomes achieved by State agencies, but also support a set of practices that may be adopted to improve upon and maximize the effectiveness of the NAC pilot. Additionally, the evaluation report recommended that State agencies conduct comprehensive front-line training. This includes dedicating resources to delivering hands-on training for eligibility workers using real-world examples for the approach the State agency will use to operationalize the tool and communicate with other State agencies. These best practices from the NAC pilot combined with feedback from State agencies inform the design and implementation of the nationwide NAC solution created by this rule.

The NAC pilot evaluation estimated the total benefit overpayments averted by the NAC pilot and the potential benefit overpayments that could be saved if the NAC were implemented nationwide. The evaluation compared the decay rate (the decline in the percentage of clients who remain duplicate participants in the five months following program entry) of duplicate participation by comparing entries from December 2013 (pre-pilot) and December 2014 (during pilot), and following the same individuals for five months between January and May. The difference represents the effectiveness of using the NAC pilot to prevent and timely resolve duplicate participation. In each State, the entries of duplicate participation fell from December 2013 to December 2014. However, anywhere from 25.8 percent to 41.45 percent of instances of duplicate participation identified in December 2013 continued five months later into May 2014. Once the NAC pilot was implemented, the total number of duplicate participant instances fell for each State and the percentage of individuals remaining as duplicate participants after five months fell from 21 percent to 0 percent in Alabama, 51.4 percent to 17.8 percent in Florida, 49.6 percent to 17.1 percent in Georgia, 41.4 percent to 6.5 percent in Louisiana, and 34.9 percent to 3.2 percent in Mississippi. In each case, the NAC pilot was effective as reducing the rate of duplicate participation.

The NAC evaluation also calculated savings resulting from the pilot by estimating the savings per month per instance of duplicate participation prevention in each of the pilot States and multiplying those savings by the median months of duplicate participation avoided. To establish the median length of duplicate participation for an individual, the NAC evaluation identified the eligibility date in each State, selected the latest of the two dates to establish when overlapping eligibility began, identified the next recertification date for the individual's case in each State, and selected the soonest of the two recertification months. The number of months between the start of overlapping eligibility and the next recertification month establishes the median expected length of duplicate participation per State, which ranged from 6 to 11 months. The evaluation avoided double counting the prevention of duplicate participation in both States by assuming the individual was eligible to participate in one of the States. The estimated State agency costs of NAC participation were then subtracted from these savings to yield a total estimated net impact for the NAC pilot of more than $5.6 million per year in the five NAC pilot States.

The evaluation estimated the potential impact of a nationwide NAC from the results of the NAC pilot, including the potential cost savings associated with its implementation. These savings estimates of the pilot States were converted to percentages of total fiscal year (FY) 2014 SNAP benefit issuance in each pilot State, then averaged and applied to the Program-wide total FY 2014 benefit issuance. The evaluation estimated that nationwide implementation of the NAC would have saved more than $114 million in SNAP benefit overpayments in FY 2014, or 0.16 percent of total SNAP issuance. As a result of this successful pilot, as evidenced by the evaluation report findings, Congress passed legislation to expand the NAC nationwide and mandated State agency participation.

The Department finds, based in part on the NAC pilot discussed above and feedback from State agencies and FNS Regional offices, that an automated and real-time nationwide NAC will help State agencies more effectively prevent duplicate participation and facilitate communication among State agencies, which can improve application processing timeliness and Program access. The NAC will prevent and detect interstate duplicate participation by ensuring that State agencies are accurately issuing benefits to individuals in the State in which they are eligible to receive them. State agencies will verify residency and identity prior to checking the NAC using existing verification requirements at § 273.2(f). If State agencies receive a positive match from the NAC for an individual, the State agency will work to quickly resolve the match and communicate with the other State agency identified in the match to ensure the individual's timely access to benefits. The State where the household previously resided will promptly respond to the other State agency identified in the match and work with the other State agency and the household to ensure proper and timely disenrollment as applicable. The NAC also requires and improves State-to-State communication and collaboration through automation and improved tracking. State agencies must take appropriate actions to resolve match results and provide adequate notice to individuals who are identified as potential duplicate participants to ensure the timely processing of applications. SNAP applicants and participants will be relieved of the burden they previously had to resolve a positive match, as these new requirements place the burden on State agencies to resolve a match and communicate with one another once notified of a match. Through the use of the NAC, State agencies will be able to more effectively and timely disenroll and enroll individuals in the appropriate States. Clients are less likely to be adversely impacted by inaccurate flags that could result in burdensome or costly claims collections processes with an automated NAC process. Senator Stabenow, chairwoman of the Committee on Agriculture, Nutrition, and Forestry, reiterated the importance of timely processing of applications by stating “the conference committee expects that USDA's Food and Nutrition Service, FNS, and States will establish procedures for the NAC that will not interfere with current application and enrollment procedures, particularly, the speedy processing of applications.”  6

This rule does not change the existing requirements for household member residency, monitoring of intrastate duplicate participation, or claims against households. Additionally, it does not change existing requirements and procedures for investigating and disqualifying violators.

The Department intends to implement a nationwide NAC using a phased approach that will onboard all State agencies over a period of 5 years, depending on their readiness, emphasizing training and proper implementation to minimize undue burden on the State agencies, Program participants, and applicants. The nationwide NAC will incorporate best practices and lessons learned from the NAC pilot in order to implement a system that prevents and detects duplicate participation efficiently and effectively, in a manner that does not delay the certification process. The NAC will allow FNS and State agencies to meet the statutory and regulatory requirements for NAC matches. The Department will provide technical assistance to State agencies to assist with NAC implementation and ensure State agencies take appropriate actions in response to NAC matches. The improved data sharing between State agencies is expected to reduce duplicate participation, reduce claims issued against individuals found to be duplicate participants, and help streamline the application process all while ensuring there is no delay in benefit determination.

The Department conducted 28, hour-long stakeholder sessions with 20 State agencies to better shape this rule, develop the system, and apply lessons learned from the NAC pilot. These sessions were held from December 2020 through August 2021 and included State agencies from Texas, Louisiana, Massachusetts, Montana, Iowa, Missouri, New Jersey, Illinois, Idaho, Utah, Maryland, Arizona, South Dakota, Nebraska, Connecticut, Kentucky, South Carolina, Washington, Nevada, and Alabama. These sessions informed the Department about State agency eligibility systems, existing State agency workflows, how State agencies currently process duplicate enrollment, capabilities and limitations of State agency technology, and how existing required data matches currently work from a front- and back-end perspective. FNS followed these sessions with technical email inquiries to the States to gather additional details needed to create a user-friendly system.

Section 11(x)(2) of the Act requires the Secretary to “establish an interstate data system, to be known as the `National Accuracy Clearinghouse,' to prevent multiple issuances of [SNAP] benefits to an individual by more than 1 State agency simultaneously.” Therefore, to establish a system that is truly interstate, the Department is adding § 272.18(a)(1) and (2) through this interim final rule that establish the NAC and require each State agency to participate in the NAC matching program and use information from it to achieve the purpose set forth in Section11(x)(2) of the Act. The NAC will, in real or near-real time, receive information from State agencies about all individuals receiving SNAP benefits in each State and notify State agencies when an individual is receiving SNAP benefits in another State.

The Department is committed to ensuring all statutory and regulatory requirements for the system and its documentation will be met and all required information will be provided in the Computer Matching Agreement (CMA), but many details that must be provided are dependent on the final System design. Therefore, this interim final rule includes several requirements for State agencies for which the exact procedures for completing them through the system will be provided in the CMA and related documents. State agencies are required to provide information to the NAC on all individuals participating in SNAP, except as provided in newly created § 272.18(b)(3). The Department has determined that the elements that are necessary to determine a match and that must be reported to the NAC are an individual's name, Social Security number, and date of birth. However, since these data elements are personally identifiable information (PII), the Department is establishing secure procedures for submitting this information to the NAC and requiring State agencies to abide by them. In order to protect participant information, State agencies will not submit the names, Social Security numbers, and dates of birth to the NAC. Rather, State agencies will use a privacy-preserving record linkage (PPRL) process to convert these data elements to a secure cryptographic hash before sharing the information to the NAC. The PPRL process allows the NAC to accurately match individuals, while preventing the collection and storage of the names, Social Security numbers, and dates of birth in the NAC system. A positive match is identified by the NAC when two or more hashes match. State agencies are also required to provide a participant ID to the NAC to allow the State agency to connect the match in the NAC to an individual in the State agency's system. In other words, the participant ID is used to help the State agency resolve a match. When a match is found, the NAC will create a match record with a unique match ID and notify the affected State agencies of the match. State agencies will use the participant ID they provided previously, now included in the match record, to find the matched individual in the State agency's eligibility system. This approach enhances security and privacy protections of applicant and participant information by ensuring the NAC does not store names, Social Security numbers and dates of birth. Additional security measures employed by the NAC include encryption of information in transit between State agencies and the NAC and within the NAC, as well as controlled access through e-authentication and role-based permissions.

Currently, under § 272.4(e)(1), each State agency must establish a process to prevent duplicate participation, while also ensuring that applications are processed timely and participants only receive benefits in the State in which they reside and are otherwise eligible, in accordance with regulations §§ 273.2(a)(2) and 273.3, respectively. Now that the Department is establishing the NAC and associated procedures through this interim final rule, the process provided for under § 273.4(e)(1) must include compliance with the NAC data matching regulations and other related requirements including the Privacy Act at 5 U.S.C. 552a, a signed Computer Matching Agreement (CMA) and Interconnection Security Agreement (ISA), and the NAC System of Record Notice that will be published in the Federal Register after publication of this interim final rule. FNS will provide technical assistance for State agency integration with the NAC system.

Section 11(x)(2)(B) of the Act specifically authorizes the Department “to require that State agencies make available to the National Accuracy Clearinghouse only such information as is necessary for the purpose . . .” of preventing duplicate participation. Through this interim final rule, the Department is adding § 272.18(b) to require State agencies to provide such information to the NAC. Section 272.18(b)(1) requires that each State agency provide information on all active SNAP participants to the NAC. This paragraph also defines, for the purpose of the NAC, an “active participant” as an individual who is approved to receive benefits for the month in which the State agency is uploading the data. The Department is adding § 272.18(b)(2), which indicates that all State agencies will use the information provided to the NAC to identify duplicate participation via NAC matches and that each State agency shall provide information on all active SNAP participants once per working day in accordance with the procedures provided by FNS in the CMA. It is important that information in the NAC be as current as possible to prevent a “false positive” match, indicating duplicate participation, that could generate unnecessary work for another State agency or the household. Conversely, any delay in adding an individual who has become part of a State agency's active caseload would limit the NAC's ability to prevent or curtail duplicate participation, potentially resulting in false positives and months of undetected duplicate participation, as has been the case when using the quarterly PARIS match to detect duplicate participation in SNAP.

To discover if an individual is already receiving SNAP benefits, information on that individual must be compared to the information previously provided by all other State agencies, as described later in this rule. The Department has identified three data elements that are essential for a positive match and that must be submitted to the NAC. These NAC data matching elements are: name, date of birth, and Social Security number. However, in order to prevent this information from being stored in the NAC, the Department is establishing secure procedures to protect this information and is requiring State agencies to abide by them. These requirements and procedures are described in the Computer Matching and Interconnection Security Agreement package. The Department is adding § 272.18(c)(1) to outline the NAC matching process. State agencies must report the NAC data matching elements using the secure procedures established by FNS. The use of these data elements is necessary to implement a critical finding of the NAC pilot evaluation, which found that, with virtually no exceptions, matches using these combined data elements were valid. By comparison, Social Security number-only matches were often the result of data entry errors. Therefore, to avoid false positives and the burdens they place on State agencies and households to resolve, all three data elements must match to be deemed a positive match by the NAC.

A Social Security number is required as a NAC data matching element because a Social Security number is a requirement for SNAP participation. Regulations at § 273.6 require that a household participating or applying for participation in SNAP provide the State agency with the Social Security number of each household member or apply for one before certification. If the individual does not yet have a Social Security number but can provide proof that a Social Security number has been applied for, the State agency will continue with the eligibility determination process as appropriate. Once the individual receives a Social Security number and reports it to the State agency, it shall be added to the daily active participant upload using procedures established by FNS and any potential match will be indicated during the monthly bulk match.

The new regulation at § 272.18(b)(4) will require State agencies to submit additional data elements to help them resolve matches and to better protect those who may be considered vulnerable individuals. These additional required data elements include a vulnerable individual flag if applicable, and a participant ID, as previously mentioned. The NAC will share these additional data elements with State agencies as part of the notification of a NAC match to provide useful context about the SNAP case in the other State and aid in the match resolution process. The additional data elements will have no impact on what is considered a positive match and is information that can be obtained by the State agency during the certification process.

While the NAC protects the information of all individuals throughout the matching process, this rule adds additional protection for those who are considered vulnerable individuals. The Department is requiring that a vulnerable individual flag be provided to the NAC, when applicable, because Section 11(x)(2)(C)(iv) specifies that information made available to the NAC be used in a manner that protects the identity and location of SNAP applicants and participants who are vulnerable. (Vulnerable individuals, defined by the newly created § 272.18(c)(9), are discussed later in this rule.) Automatically including a vulnerable individual flag at the time of the match, rather than relying on manual sharing of this information, ensures each State agency is immediately aware of the individual's vulnerable status and the need to take extra precautions to protect the identity and location of that person as they verify information and take action on the related SNAP case. The Department requires extra precautions to include removing the location of vulnerable individuals when issuing a notice of match results or a combined notice. States must also exclude location information from any written or verbal communications that happen as a result of a NAC match. For example, absent this requirement, an abusive spouse who received a notice of match results could attempt to bypass protections by contacting a toll-free State hotline and asking a call center employee to identify the source State of the NAC data match. Thus, the Department expects that State agencies take preventive measures to ensure the privacy and protection of vulnerable individuals, including those required by this rule, and that these practices are established in State agency business processes, documented in writing, and that State agency employees are trained regarding how to implement these protections.

The Department requires State agencies to provide a participant ID that identifies an individual within the State agencies' own system to allow them to identify those individuals for whom they have received a notification of a NAC match. When a match is found, the NAC will create a match record with a unique match ID and notify the affected State agencies of the match. State agencies will then use the participant ID they provided previously, which is included in the match record in the NAC, to find the matched individual in the State agency system. The participant ID shall not use any sensitive PII.

The Department is aware that there are other data elements that, while not necessary for the match, could help a State agency resolve a match, such as a case number, a case closure date, or the date of last issuance. However, not all States have these data elements available, and of those that do, not all States have the same understating of what data is meant by these terms. While the Department can define such elements in regulation, making the terms uniform throughout the States, the impact a new definition and the immediacy of the implementation of this interim rule would have on the various State systems is not clear. Additionally, there may also be other data elements that the Department is unaware of that would help State agencies resolve a match. Therefore, in this interim final rule, the Department is not requiring State agencies to report additional data elements to the NAC but is signaling its intent to require in the final rule that State agencies report additional data elements if available, including a case number, a case closure data, and the date of last issuance. The Department is soliciting comments regarding these data elements, additional data elements State agencies have the ability to report, which data elements would be most helpful, and how they would be most helpful.

The Department is adding § 272.18(c)(2) requiring that State agencies follow existing verification procedures outlined at § 273.2(f)(1)(v), (vi), and (vii) for verifying Social Security numbers, residency, and identity prior to checking the NAC. This will ensure that State agencies have reliable information prior to checking the NAC. This requirement is based on existing regulations that require other data matches to verify match data at the time of application, including the prisoner verification system required at § 272.13(c), the deceased matching system required at § 272.14(c)(1), and the disqualified recipient database required at § 273.2(f)(11)(i)(B). These existing regulations require data matches “prior to certification” or “at the time of application” but do not further specify the timing of the required match. The State agency must follow Social Security number, residency, and verification requirements for a household as described at § 273.2(f)(1)(v), (vi), and (vii) before checking the NAC to ensure that they are potentially eligible to receive benefits in the State in which they are applying. This step is being added to minimize the likelihood of inaccurate data matches. Once the State agency completes these verification requirements, it may continue with the application process and the State agency may check the NAC for a match. The Department will assist the State agency in providing training to eligibility workers on their State agency's processes for using the NAC, which may include information on how and when to conduct matches, how to respond in the event of a match, verifying information, ensuring timely application processing, and providing necessary notices. The Department further recommends that State agencies automate NAC processes to the greatest extent possible. This is a significant recommendation from the NAC pilot evaluation that suggests integrating the NAC with existing eligibility systems, real time queries of the NAC, and the automation of match notification emails as options for further automation.

It is important that new individuals who join existing SNAP households are checked against the NAC's database of active participants in other States. The NAC pilot evaluation found that 47 percent of individuals receiving SNAP benefits from multiple State agencies were part of households where all other household members were not receiving benefits from multiple State agencies. These data suggest that a significant percentage of interstate duplicate participation occurs when a new member is added to an existing case. For example, if an individual is a member of a household receiving benefits in one State, but then moves to another State and applies for benefits, a NAC match will indicate that that individual is already participating in another State as a part of a household. The previous household that the individual has moved away from will receive a notice from the State agency indicating that a NAC match was received and that they will need to either contest the findings or update their household composition to indicate the individual separated from them so that the individual can begin receiving benefits in the new State without causing duplicate participation. This follows the existing process for data matches in notifying the previous address of the match, providing them with an opportunity to contest, prior to taking adverse action. In this example, the previous household was not attempting to receive duplicate benefits from multiple States, and they were entitled to receive benefits in the State in which they reside. In a scenario where a State agency receives a positive match for a child moving between households due to a custody arrangement the State agency must resolve the match in order to determine what actions must be taken on the case. The State agency may be able to resolve the match based on existing information known to the State agency or it may need to pursue additional information or verify questionable information.

There is flexibility on exact timing when the State agency must submit new household member information to the NAC, but it must do so before adjusting household benefits to account for the new member as described in § 273.12(c)(1)(ii). Depending on a household's reporting system, it is not always required to immediately report changes in household composition. Therefore, a household may report a new member before the prior household reports losing the individual without either household committing a violation of Program rules.

The Department is adding § 272.18(c)(6) requiring State agencies to note instances where there is a match in the participant's casefile. This requirement is necessary to ensure proper case documentation for the purposes of oversight as described in part 275, regarding performance reporting systems.

The NAC will automatically conduct bulk matches on a monthly basis (“monthly bulk matches”) of the NAC data matching elements provided by all participating State agencies. The monthly bulk match compares the secure hash of all active participants included in the most current daily upload from each participating State agency to discover all instances of duplicate participation that exist at the time the match is conducted. The NAC will create a match record for each instance of duplicate participation found and will notify State agencies when duplicate participation is discovered for participants in their State. The Department is adding § 272.18(c)(4) to reflect this. The Department considers information that is received by State agencies as a result of a monthly bulk match unclear information because it is a match received during the certification period for an individual currently participating in SNAP. State agencies must pursue clarification and verification of this information by following the unclear information procedures provided in § 273.12(c)(3)(iv) (discussed in the next section) to provide notice and an opportunity to contest the information received before taking any adverse action. The NAC pilot evaluation indicated that bulk matches alone were insufficient in identifying and preventing duplicate participation; however, when implemented with other matches, bulk matching better identified matches that were missed or not acted upon. The Department will provide ongoing technical assistance to State agencies emphasizing the importance of States approaching the resolution of these matches consistently as well as maintaining Program access for SNAP applicants and recipients to State agencies.

State agencies using matching information from the NAC must comply with the requirements set forth at 5 U.S.C. 552a(p) and § 272.12(c). Pursuant to these requirements, State agencies may not take any adverse action to terminate, deny, suspend, or reduce benefits to an applicant or SNAP participant based on information produced by the NAC until the information has been independently verified by the State agency and the applicant or participant receives a notice from the State agency containing a statement of its findings, informing the individual of the opportunity to contest such findings, and the allowable timeframe to do so. State agency action upon receiving a NAC match varies depending on when the match is received; for example, during the certification period versus at the time of application. Therefore, the Department is adding § 272.18(c)(3) to describe the actions a State agency must take in response to a positive NAC match received at application, recertification, and addition of a new household member. When a State receives a positive NAC match on an individual at initial application, recertification, or when a new household member is added, the State agency must independently verify the information if there is a potential for adverse action in accordance with § 272.12(c)(1). Action only needs to be taken on positive matches. If there is no positive match, benefit determination continues following existing regulations.

The Department also establishes at § 272.18(c)(3) a 10-day timeframe for State agencies to initiate action to resolve a positive match at application, recertification, and addition of a new household member; as well as a requirement to promptly inform the other State agency indicated in the match of the initiated action. The 10-day timeframe is consistent with existing timeframes for other certification and recertification matches at § 273.2(f) and will help prevent delays in eligibility determination.

While State agencies have 10 days to initiate action to resolve a match and report that action to the other State agency, they are encouraged to resolve matches as quickly as possible. State agencies are also encouraged to maintain contact with one another throughout the match resolution process to quickly resolve a match and keep the applicant informed of progress. After State agencies have determined the appropriate disposition on the case, they must also notify each other of the final resolution of the match. If there is no match indicated during a NAC query, then the State agency must continue with the eligibility determination process. The requirement for State agency communication addresses a key finding of the NAC pilot evaluation where pilot States identified examples of SNAP cases not being closed due to another State not communicating or taking timely action. Greater communication also ensures that State agencies are assisting the applicant in the event of the match by being required to issue notices to the client to verify information obtained through a NAC match as well as providing an opportunity to contest. Applicants are also aided through State-to-State communication as State agencies are required to communicate with one another within 10 days of a match and communicate case disposition to the other State to ensure the individual is receiving benefits in the State in which they are eligible.

If there has been no contact from the other State agency within the established timeframe, and all other eligibility and verification requirements are met, the State agency must continue processing the application and issue benefits to the applicant. A NAC data match shall not delay processing of the application and provision of benefits beyond the normal processing standards in §§ 273.2(g) and 273.14(d), or expedited service standards in § 273.2(i), whichever applies to the applicant household. If a State agency is not notified of initial action from the other State agency indicated in the match within 10 days, then the application can continue to be processed. Delays in processing caused by a positive NAC match where household verification is otherwise incomplete shall be handled in accordance with § 273.2(h). However, delays in communication or action between State agencies regarding verification of information associated with a positive NAC match must not prevent the eligibility determination of an applicant, recertifying participant, or newly added household member per the added regulation at § 272.18(c)(3)(v).

The Act provides that an applicant's right to an eligibility determination is triggered by the filing of an application and not by State action. Section 11(e)(2)(B)(iv) of the Act requires that State agencies consider an application that contains the name, address, and signature of the applicant to be filed on the date the applicant submits the application. Additionally, Section 11(e)(2)(B)(i) requires timely, accurate, and fair service to applicants for, and participants in, SNAP. As a result, the Department expects State agencies to be responsive in resolving NAC data matches to ensure applications are processed timely, in accordance with the Act, and to assist households to resolve residency issues due to a NAC data match.

A State agency that is notified of a NAC match during the certification period is required to take initial action to resolve a match as well as issue a combined notice. The State agency is also encouraged to assist the individual with closing their case, when applicable. For example, if an individual indicated in the match contacts a State agency and verbally requests it to expedite the closure of their case, that State agency must take prompt action to do so and provide a letter confirming voluntary withdrawal to the address on file, or the new one as specified by the individual making the request, consistent with regulations at § 273.13(b)(12) to ensure the individual has proof of closure so that they can apply for benefits in the new State. Per newly established regulations at § 272.18(b)(5), State agencies are required to maintain accurate and up to date daily uploads of NAC data elements regarding the status of individuals participating in SNAP to prevent the possibility of false positives and any delays in benefit issuance. This would include maintaining appropriate security and privacy standards per the NAC CMA and ISA. If the NAC system is not operational due to unforeseen circumstances, as will be outlined in the CMA and technical guidance, State agencies will continue the eligibility determination process without the initial NAC query. Any instances of duplicate participation will be discovered during the monthly bulk match once the system is again operational. For disaster situations, State agencies should follow their Disaster SNAP (D-SNAP) procedures for data entry and certification per FNS guidance. 7 This guidance explains that State agencies are required to screen for duplicate participation in disaster situations. State agencies must either check for duplicate participation utilizing the NAC in the State's D-SNAP system, or the State agency must accept applications and inform applicants that eligibility is contingent upon a subsequent check for duplicate participation. Any check for duplicate participation must be done using the NAC.

Section 11(e)(26) of the Act requires States to “pursue clarification and verification, if applicable, of information relating to the circumstances of the household” when that information is received from data matches related to prisoners, deceased individuals, and the NAC. The Department considers match information that is received from the NAC during the certification period to be unclear information. This is consistent with how information from other Federal systems such as the Prisoner Verification system and Deceased matching system, is treated by the Department. The procedures for pursuing clarification and verification of unclear information received from prisoner and deceased individual data matches during the certification period are described in existing regulations at § 273.12(c)(3). Therefore, the Department is adding § 273.12(c)(3)(iv) to describe what actions a State agency must take when it receives unclear information during the certification period from a NAC match. Those actions are described below.

This interim final rule amends § 273.12(c)(3)(i) to add information received from NAC matches to the types of unclear information for which State agencies must pursue clarification and verification when received during a certification period. Unclear information is defined per § 273.12(c)(3) as information that is not verified or information that is verified but additional information is needed to act on the change. The Department is adding § 272.18(c)(5) to describe procedures to be followed for matches containing unclear information related to a NAC match during the certification period and further describes those procedures in § 273.12(c)(3)(iv). These procedures are different from procedures related to information received from a NAC match at application, recertification, or for a newly added household member as further discussed earlier in this rule. These procedures for unclear information are different from existing procedure for Deceased Matching and Prisoner Match as the added regulations at § 273.12(c)(3)(iv) implements the requirement to initiate action to resolve the match and to communicate with the other State agency within 10 days of receipt of the match notification. Additionally, the added regulation § 273.12(c)(3)(iv)(A) implements the combined notice of match result and notice of adverse action.

To maintain consistency with timeframes established during application and recertification, the newly established regulations at § 272.18(c)(3)(i) establishes that State agencies will have 10 days from the time a match is received to initiate action to resolve a match and to notify the other State agency of that initiating action. State agencies must also provide resolution of the match to the other State agency, similar to regulations at § 272.18(c)(3).

This interim final rule requires that State agencies send a notice of match results to households that received a positive match at application, at recertification, or for a newly added household member if the information indicated in the match could lead to a denial of benefits or other adverse action on the case. The Department is adding this requirement for a notice of match results at § 272.18(c)(3)(iii)(A) to provide the individual with an opportunity to contest findings in a data match prior to adverse action or denial of benefits. The notice of match results must clearly explain what information is needed from the household, and that failing to respond within 10 days, could result in a denial of benefits or adverse action, as appropriate.

To aid the NAC resolution process for applicants, recertifying participants, and newly added household members and ensure they are receiving their benefits in a timely manner, this interim final rule clarifies that if State agencies have enough information to resolve the match, and there is no potential for adverse action, State agencies are not required to send a notice of match results. The Department is adding § 272.18(c)(3)(iii)(B) to clarify the NAC match resolution process for the individual if there is no potential of adverse action. For example, if a positive match is identified for an individual during the interview process and the individual can immediately verify the information from the match, and there is no potential of adverse action, no notice of match results is required. In situations like this, the State agency must provide a verbal notification of a match and must document that verbal notification in the case file before continuing with the eligibility determination process.

This interim final rule requires that State agencies send a combined notice of match results and notice of adverse action to households that received a positive NAC match during the certification period. The Department is adding this requirement for a combined notice for action on NAC matches at § 273.12(c)(3)(iv)(A) to streamline the notice process for State agencies, reduce the likelihood of duplicate participation and the need to establish claims, while still providing the household with an opportunity to contest per 5 U.S.C. 552a(p). To maintain compliance with the notice of adverse action requirements at § 273.13, the Department is also amending § 273.13(a)(2) to add language stating that a notice of match results and notice of adverse action may be combined to meet the requirements in § 273.12(c)(3)(iv). This change is consistent with similar allowances provided for Income Eligibility Verification System (IEVS) and Systematic Alien Verification for Entitlements (SAVE) computer matches at § 273.2(f).

The consequences for failing to respond to the combined notice depend on the reporting system to which the household has been assigned as explained at § 273.12(c)(3)(iii)(A) and (B). If the household is subject to change reporting and fails to respond to the combined notice, which clearly explains what information is needed from the household and the consequences of failing to respond, the State agency must terminate the case. If the household is assigned to any other reporting system besides change reporting and the household fails to respond sufficiently to the combined notice, then the State agency must remove the subject individual and the individual's income from the household and adjust the benefits accordingly.

Section 11(x)(2)(C) of the Act explicitly limits the use of the NAC to preventing duplicate participation—it may be not used for other Federal, State, or local programs or other purposes. In compliance with both this requirement and Section 11(x)(3)(D) of the Act, which requires the establishment of safeguards for information submitted to or retained by the NAC, the NAC will not retain SNAP applicant or participant information longer than needed to accomplish the purpose of preventing duplicate participation. To comply with this requirement, only NAC data matching elements on active participant information will be uploaded to the system once each working day. This information will not be stored in the NAC. Upon match, only the match record is stored in the system. Additionally, the NAC data elements will be submitted using the secure procedures established by FNS. Once an individual is no longer an active SNAP participant, that individual's information will no longer be included in the daily upload, and their information can no longer be matched against. The Department is codifying these procedures to safeguard information submitted or retained to the NAC at § 272.18(b)(5).

Current disclosure requirements at Section 11(e)(8)(A) of the Act, and regulations at § 272.1(c) permit the disclosure of SNAP applicant or participant information to persons directly administering assistance programs. Section 11(x)(2)(B) and (C) of the Act only allow the Department to require State agencies to submit to the NAC information needed to prevent interstate duplicate participation and prohibits the use of information from the NAC beyond preventing interstate duplicate participation. This restricts the use and disclosure of information from the NAC beyond the disclosure requirements in current regulations at § 272.1(c). The Department acknowledges the blanket authorities for data sharing provided by other Federal laws; however, sharing of NAC data beyond its original intent is currently prohibited by Section 11(x)(2)(C) of the Act. Congressional action to amend the Act would be required to allow data sharing beyond the purpose of preventing duplicate participation in SNAP.

Accordingly, the Department is adding § 272.1(c)(4) through this interim final rule to limit the disclosure of NAC data “to only persons directly connected with the administration or enforcement of the provisions of the Food and Nutrition Act of 2008 or regulations.” The regulation also requires that NAC data may only be used for the purpose of preventing multiple issuances of SNAP benefits.

Section 11(x)(2)(C)(iv) of the Act requires that information made available to the NAC be used in a manner that protects the identity and location of SNAP applicants and participants who are vulnerable individuals. Also, Section 3(m)(5)(C) of the Act and existing regulations at § 273.3(a) exempt certain residents of shelters for battered women and children from the requirement that SNAP participants not participate as a member of more than one household or in more than one project area, in any month. Effectively, duplicate participation is permitted temporarily among this vulnerable portion of SNAP participants. Consistent with these existing requirements and reflecting the Congressional mandate in the Act to protect such individuals, a process to protect the identity and whereabouts of vulnerable individuals will be established in the NAC system, including location protection of individuals in verbal and written communication with any household associated with a vulnerable individual match. Therefore, the Department is adding § 272.18(c)(9) which establishes a definition for vulnerable individuals specific to the NAC. This definition covers those who would be endangered by the dissemination of their information, including but not limited to, residents of shelters for battered women and children as defined in § 272.1, residents of domestic violence shelters, or a person who self-identifies as fleeing domestic violence at any point during application, recertification, during the certification period, or when there is a newly added household member, regardless of the individual's age or gender.

Additionally, current regulations at § 273.11(g) require the State agency to take prompt action to ensure the former household's eligibility or allotment reflects the change in the household's composition by issuing a notice of adverse action in accordance with § 273.13. However, any communication with a household as a result of a NAC match, whether written via a notice or verbal, cannot contain the location of the individual indicated in the match per the newly added § 272.18(c)(3)(iii). To ensure consistency across notices, the new regulations at § 272.18(c)(9) also describes that when a vulnerable individual is indicated in a positive match, State agencies must take steps to ensure that any information resulting from a NAC match, including identity and location, is protected during verification and resolution. The State's determination of the individual's status as a vulnerable individual could come from information reported by the household on its application or voluntarily disclosed during its interview, or from knowledge of the individual's residence at a domestic violence shelter or shelter for battered women and children; however, the Department does not require or expect the State agency to solicit this information as a part of the certification process. Furthermore, the Department expects State agencies to include processes for protecting vulnerable individuals and ensure all applicable staff, including front line eligibility workers, call center operators, fraud investigators, and claims staff—receive hands-on training using real-world examples of how to protect vulnerable individuals.

The Privacy Act of 1974 (Privacy Act), as amended by the Computer Matching and Privacy Protection Act of 1988 and the Computer Matching and Privacy Protection Amendments of 1990, set the requirements for matching programs at 5 U.S.C. 552a(o). As a Federal system of records being used in a matching program, the NAC is subject to these requirements. The Department will ensure all requirements of the Privacy Act, Federal Information Security Management Act of 2002 (FISMA), and National Institute of Standards and Technology (NIST) are met within the system development process, including the development of all documentation required for approval of the matching program by the Department's Data Integrity Board. Documentation will include a System of Records Notice (SORN), a Computer Matching Agreement (CMA), and multiple system-specific documents that provide details about system design and data security and privacy protocols. Agencies participating in a matching program are required to enter into a written agreement, referred to here as a CMA. This interim final rule includes this requirement in § 272.18(a)(3).

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

This interim final rule has been determined to be economically significant and has been reviewed by the Office of Management and Budget (OMB) in conformance with Executive Order 12866.

As required by Executive Order 12866, a Regulatory Impact Analysis (RIA) was developed for this interim final rule. It follows this rule as an appendix. The following summarizes the conclusions of the regulatory impact analysis:

The Department estimates the net reduction in Federal SNAP spending associated with the interim final rule to be nearly $463 million over the five years 2022-2026. This reduction in spending represents a decrease in Federal transfers (SNAP benefit payments) of approximately $498 million over five years due to prevention of duplicate participation, partially offset by increases in Federal systems costs related to implementing, operating, and maintaining the system ($18.3 million) and in the Federal share of State administrative costs (nearly $16 million). In addition, the Department estimates an increase in the State share of administrative costs (nearly $16 million over five years) for start-up costs and costs associated with submitting data and following up on matches. This rule will also increase administrative burden on SNAP households by nearly $1.2 million over five years. Households identified as potential duplicate participants through NAC matches will need to provide verification and respond to notices and requests for information from State Agencies.

The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies to analyze the impact of rulemaking on small entities and consider alternatives that would minimize any significant impacts on a substantial number of small entities. Pursuant to that review, the Secretary certifies that this rule will not have a significant impact on a substantial number of small entities. This interim final rule will not have an impact on small entities because the rule primarily impacts SNAP State agencies. As part of the requirements, State agencies will have to develop procedures for submitting data and following up on matches when they occur. Small entities, such as smaller retailers, will not be subject to any new requirements.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Management and Budget Office of Information and Regulatory Affairs has designated this as a major rule, as defined by 5 U.S.C. 804(2).

Title II of the Unfunded Mandate Reform Act of 1995 (UMRA) established requirements for Federal agencies to assess the effects of their regulatory actions on State, local and tribal governments, and the private sector. Under Section 202 of UMRA, the Department generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, Section 205 of UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule.

This interim final rule contains no Federal mandates (under the regulatory provisions of Title II of UMRA) for State, local and tribal governments, or the private sector, of $100 million or more in any one year. Therefore, this rule is not subject to the requirements of Sections 202 and 205 of UMRA.

SNAP is listed in the Catalog of Federal Domestic Assistance under No. 10.551. For the reasons set forth in the Federal Register notice, published June 24, 1983 (48 FR 29115), this program is excluded from the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under Section (6)(b)(2)(B) of Executive Order 13132.

The Department has considered the impact of the NAC and determined that this rule has federalism impacts. However, this rule is required by statute, so under Section (6)(b) of the Executive order, a federalism summary is not required. The Department requests comments from State and local officials as to the need for the NAC and any alternatives to the regulations proposed.

This interim final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations, or policies which conflict with its provisions or which would otherwise impede its full and timely implementation. This rule is not intended to have retroactive effect unless so specified in the DATES section of the final rule. Prior to any judicial challenge to the provisions of the final rule, all applicable administrative procedures must be exhausted.

FNS has reviewed the interim final rule, in accordance with Department Regulation 4300-004, Civil Rights Impact Analysis, to identify and address any major civil rights impacts the rule might have on minorities, women, and persons with disabilities. A comprehensive Civil Rights Impact Analysis (CRIA) was conducted on the interim final rule, including an analysis of participant data and provisions contained in the interim final rule. The CRIA outlines outreach, mitigation, and monitoring strategies to lessen any possible civil rights impacts. The CRIA concludes by stating FNS believes that the promulgation of this interim final rule will impact State Agencies and the way they process applications for SNAP benefits. Additionally, the rule may impact SNAP applicants and participants if identified by the NAC for duplicate participation. However, FNS finds that the implementation of the outreach, mitigation, and monitoring strategies may lessen these impacts. Outreach initiatives will include making the publication of the interim final rule available in alternative formats, including 508 compliant and in other language for persons with limited English proficiency, upon request. Additionally, the Department will work with the Office of Tribal Relations to ensure meaningful consultation is provided. To lessen any possible impact of the interim final rule, the program will implement a phased approach over a period of 5 years from the date of publication. If deemed necessary, FNS will propose further mitigation and outreach strategies to alleviate impacts that may result from the implementation of the final rule.

Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments, or proposed legislation. Additionally, other policy statements or actions that have substantial direct effects on one or more Indian Tribes, the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes also require consultation.

This regulation does not appear to have significant tribal implications, so consultation is not required. Additionally, FNS discussed this rule at a listening session on February 12, 2020, and no issues with the rule were identified. No tribes have requested consultation to this point, but if consultation is requested, the USDA Office of Tribal Relations (OTR) will work with FNS to ensure quality consultation is provided.

The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR part 1320) requires the Office of Management and Budget (OMB) to approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number.

In accordance with the Paperwork Reduction Act of 1995, this interim final rule contains information collections that are subject to review and approval by the Office of Management and Budget; therefore, FNS is requesting a new OMB Control Number 0584-NEW. Upon approval, FNS intends to merge a portion of these burden estimates into OMB Control Number: 0584-0064, Expiration Date: 2/29/2024. These burden estimates are contingent upon OMB approval under the Paperwork Reduction Act of 1995. When the final rulemaking information collection request is approved, the Department FNS will publish a separate notice in the Federal Register announcing OMB's approval.

Comments on this interim final rule must be received by December 2, 2022. Send comments to Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for FNS, Washington, DC 20403, Fax: 202-395-7285, or email to oira_submission@omb.eop.gov. Please also send a copy of your comments to Evan Sieradzki at the Food and Nutrition Service, U.S. Department of Agriculture, 1320 Braddock Place, 5th floor, Alexandria, VA 22314. For further information please contact the State Administration Branch Chief, Maribelle Balbes, at the above address. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

All responses to this notification will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

Title: Supplemental Nutrition Assistance Program: Requirement for Interstate Data Matching to Prevent Multiple Issuances.

OMB Control Number: 0584-NEW.

Expiration Date: Not yet determined.

Type of Request: NEW.

Abstract: The Agriculture Improvement Act of 2018 requires the Secretary of Agriculture to establish an interstate data system called the National Accuracy Clearinghouse (NAC) to prevent multiple issuances of Supplemental Nutrition Assistance Program (SNAP) benefits to an individual by more than one State agency simultaneously in the same month (also known as interstate duplicate participation). FNS is requesting a new OMB Control Number for the requirements in this interim final rule. The majority of the burden requirements established in this rule are consistent with estimates currently approved under OMB Control Number 0584-0064; Expiration Date: 2/29/2024. This rule will modify current regulations resulting in an increase in the reporting burden for State agencies and Individuals/Households. Upon approval of the new OMB control number the Department will merge the change in burden hours associated with this rule with OMB Control Number 0584-0064. Any new requirements not consistent with currently approved activities under OMB Control Number 0584-0064 are denoted as such. This interim final rule incorporates best practices and lessons learned from the NAC pilot. The NAC pilot is a shared data clearinghouse that allows States to check whether a SNAP applicant is receiving SNAP benefits in another pilot State in real or near-real time. Five States participate in the NAC pilot: Alabama, Florida, Georgia, Louisiana, and Mississippi. The NAC pilot program began exploring the prevalence of duplicate participation and the feasibility of a system to prevent it in July 2013. NAC pilot data matching operations began in June 2014 and continue today in Alabama, Florida, Georgia, and Mississippi.

In the NAC pilot, the State agencies of Alabama, Florida, Georgia, Louisiana, and Mississippi each submit a file daily of its entire SNAP caseload, which is integrated into a list of all SNAP participants receiving benefits in the participating States. State agencies query the system when they receive SNAP applications or add new members to a household. State agencies then check the new individuals against the NAC pilot's list of active SNAP participants in other States. If an applicant is identified as receiving benefits in another NAC pilot State, that State is contacted by the matching State agency responsible for administering SNAP benefits to close the individual's case. Once the applicant's out-of-State case is closed, the State receiving the application can move forward with the certification process. If the applicant is checked against the NAC pilot's list of active SNAP participants in other States and the applicant is not identified as receiving SNAP benefits elsewhere, then the State proceeds with the certification process.

In addition to screening applicants, the NAC pilot also notifies State agencies when an active member of its caseload is simultaneously active in another State. Upon receiving this information, NAC pilot States issue a Request for Contact to the individual's household, informing the household of the match and requesting proof of residency and proof of closure of the out-of-state case identified by the match. Regulations at § 273.12(c)(9) describe how State agencies must respond to information like a NAC pilot data match received during the certification period. The existing regulations prevent States from acting on NAC data matches before their next scheduled contact with the household, so States participating in the NAC pilot operate under an administrative waiver (§ 272.3(c); 17(b)(1) of the Food and Nutrition Act of 2008). The waiver allows the State to issue a Request for Contact to the household upon receiving a pilot NAC data match regarding an active member of its caseload. In lieu of a Request for Contact, the interim final rule will instead use a notice of match results or, if there is no possibility of adverse action, verbally request verification of information in the State with the new household, recertifying household, or when there is a newly added household member, and note that communication in the casefile; the notice of match results will serve the same purpose as a Request for Contact. If an individual is indicated in a positive match during the certification period, the State agency will instead issue a combined notice of match results and notice of adverse action. Each of these activities serve similar purposes and only vary depending on when the match is discovered. For example, a combined notice of match results and notice of adverse action could not be issued to an individual during the application or recertifying process, because there is not yet an active case for the State to take adverse action upon. Therefore, when a notice is sent for a match discovered during application, recertification, or for a newly added household member the activity will be known as notice of match results. When a notice is sent for a match discovered during the certification period, the activity will be known as a combined notice of match results and notice of adverse action.

This interim final rule requires SNAP State agencies to provide information to the NAC regarding individuals or households receiving SNAP benefits in their States at § 272.18(b)(1) and to screen all Individuals/Households known as SNAP Program applicants using Social Security numbers, date of birth, and name at § 272.18(b)(3), to ensure they are not already receiving benefits in another State. Per § 272.18(b)(4) State agencies are also required to submit to the NAC participant ID, and indicate if the individual is considered a vulnerable individual using the vulnerable individual flag if the State becomes aware of the status during the certification process and the information is available in the State's SNAP eligibility system. Under §§ 272.18(c)(3) and (c)(5), 273.13(a), 273.2(f)(1) and (2), and 273.12(c)(3)(iv) State agencies are required to take appropriate action with respect to each indication from the NAC that an individual is receiving SNAP benefits from more than one State agency simultaneously. This appropriate action includes either a notice of match results or, verbal indication (if there is no possibility of adverse action), or a combined notice of match results and notice of adverse action to verify information after a match, as appropriate. Following OMB approval of this NEW information collection under the Paperwork Reduction Act, the burden hours described below will be merged with the existing OMB control number 0584-0064, expiration date 2/29/2024. While the agency anticipates roughly 32 State agency respondents to be covered in this collection due to the phased approach for system operation, we are requesting 53 total respondents to cover full implementation.

The one-time burden for this interim final rule includes an increase of 208,555 hours and 10,706 responses for State agency activities associated with set up, training, and computer matching agreements for the 53 State agencies participating in the NAC. Under § 272.18(b)(1), 53 State agencies must set-up a new system to report their caseloads to the NAC. FNS estimates this will produce approximately 1 response per State agency for a total of 53 responses total. FNS also estimates it will take each State agency approximately 1,920 hours for a total of 101,760 annual burden hours. This program change reflects new one-time burden of 1,920 hours for each State Agency to reflect the time associated with the set-up of a new system. This burden is informed by the evaluation report of the NAC pilot outlining State start up time and costs. The Department assumes the set-up of a new system will require four full-time staff for approximately twelve weeks. Depending on system design, set-up can include arranging an automated daily export of active participants to send to the NAC and updating software that manages workflows for certification, recertification, as well as the addition of new household members to query the NAC before certifying benefits.

Under § 272.18(b)(1), approximately 200 eligibility workers from each of the 53 State agencies that participate in the NAC will receive one time training on how to properly incorporate the system into existing certification and recertification processes. FNS estimates this will produce approximately 200 workers per State agency for a total of 10,600 workers. FNS also estimates it will take each State agency approximately 10 hours to train an eligibility worker for a total of 106,600 new one-time burden hours. This includes general training on business practices for the NAC as well as the NAC system, testing and troubleshooting, and authentication for eligibility workers to access the system.

Under § 272.12(b), 53 State agencies will enter into a State agency computer matching agreement with FNS in order to participate in the NAC. FNS estimates this will produce approximately 1 response per State agency for a total of 53 responses. FNS estimates it will take approximately 15 hours for each State agency to review, complete any necessary draft changes, and submit a computer matching agreement to FNS for a total of 795 burden hours. The total combined new one-time burden hours for State agencies is 208,555 hours.

Following approval of OMB control 0584-NEW, burden in the State Agencies and Individual/Households sections below will be merged with OMB Control Number 0584-0064. Burden that will remain with OMB control number 0584-NEW will be denoted as such.

The establishment of the NAC includes State agencies uploading their SNAP caseload data to the NAC. Under § 272.18(b)(1) and (2) and (c)(4), 53 out of 53 State agencies will submit their SNAP caseloads to the NAC once per working day. Due to the establishment of this system, State agencies have never uploaded their caseload to the NAC. As there are approximately 261 working days in a year, FNS estimates 261 annual responses per State agencies for estimated 13,833 total annual responses. The upload of this information is to ensure that State agencies can check their caseloads against the caseloads of other State agencies in real or close to real time. FNS estimates 1 hours for each State agency to reflect the time associated with uploading their caseloads to the NAC for the first time. This represents an additional annual burden of 13,833 hours for State agencies collectively. This burden will be recorded under OMB control number 0584-NEW.

Upon implementation of the NAC, State agencies will be required to query individual case files of those who are applying, recertifying, or are a newly added household member against the NAC. Under § 272.18(c)(2), all 53 State agencies will query applicants against the NAC. FNS estimates approximately 340,435.55 total annual responses per State agency will be screened for a total of 18,043,084.00 estimated total annual responses. It will take approximately 0.0167 hours (1 minute per State agency) for a total annual burden estimate of 300,718.07 ongoing burden hours. This burden will remain under OMB control number 0584-NEW.

Under §§ 272.18(c)(3) and (5), 273.12(c)(3)(iv), and 273.2(f)(1) and (2), 53 State agencies will be required to verify information following a positive NAC match. FNS estimates this will produce approximately 4,611.57 responses per State agency for a total annual number of 244,413.10 NAC matches for State agencies to communicate and initiate action upon. This estimate is based on the NAC pilot evaluation estimates of 1.355% of initial applications for that year resulting in a positive match. FNS also estimates it will take each State agency approximately 0.1002 hours (6 minutes per State agency) for a total of 24,490.19 on-going annual burden hours. While State agencies that rely primarily on manual processes may result in a greater burden, this estimate is informed by the fact that the Department is strongly recommending the use of automated processes, including automated emails to resolve actions among States, as a lesson learned from the NAC pilot evaluation. Verification of information includes the use of documentation or contact with applicant or other State agency to confirm the accuracy of statements or additional information as needed. It can also include communicating action to resolve a match, final resolution, and additional communication with the household as needed. The previously approved burden for this activity is 29,302 burden hours approved under OMB control number 0584-0064 expiration 2/29/2024. This program change reflects an increase of 24,490.19 hours to reflect the time associated with verification of information and communication between State agencies and individuals/households. While this is an increase in burden for State agencies, the Department believes that there were components of the manual process for the monitoring of duplicate participation that was not fully accounted for in previous estimates. This increase in burden is a combination of more accurate estimation and increased burden. While components of this interim final rule, such as the daily upload of active SNAP participants, does require more effort on the part of State agencies, it is also reducing the previously manual process of checking for duplicate participation and reallocating the burden from households to State agencies to follow up on matches and resolve instances of duplicate participation.

Under § 272.18(c)(3)(iii), 53 State agencies will be required to issue a notice of match results to an individual/household following a positive NAC match on an applicant, recertifying individual, or a newly added household member. These estimates are based on data outlined in the NAC Pilot Evaluation. FNS estimates that a notice of match results-will produce approximately 7,731 responses per State agency for a total annual number of 409,709.52 notice of match results. FNS also estimates it will take each State agency approximately .0501 hours (3 minutes per State agency) for a total of 20,526.45 ongoing annual burden hours. The previously approved burden for this activity is 24,015.13 burden hours approved under OMB 0584-0064 expiration 2/29/2024. This program change reflects an increase of 20,526.45 hours to reflect the time associated with issuing a Notice of Match Results.

Under §§ 272.18(c)(5), 273.12(c)(3)(iv)(A), and 273.13(a)(2), 53 State agencies will be notified of a positive match for an individual during the certification period and will be required to issue a combined notice of match results and notice of adverse action. All 53 State agencies will be required to issue this combined notice for a match on an individual during the certification period prior to a change in SNAP benefit allotment to a participant as a result of a match found through the NAC. These estimates are based on data outlined in the NAC Pilot Evaluation. FNS estimates this will produce approximately 7,730.37 responses per State agency for a total annual number of 409,709.52 combined notice of match results and notice of adverse action. FNS also estimates it will take each State agency approximately .0501 hours (3 minutes per State agency) for a total of 20,526.45 ongoing annual burden hours to send this notice. The previously approved burden for this activity is 72,773.21 burden hours approved under OMB control number 0584-0064 expiration 2/29/2024. This program change reflects an increase of 20,526.45 hours to reflect the time associated with issuing a notice of adverse action.

Under §§ 272.18(c)(3) and (5), 273.12(c)(3)(iv), and 273.2(f)(1) and (2) approximately 244,413.1 Individuals/Households will aid in verification of information following a positive NAC match. FNS estimates this will produce approximately 1 response per individual/household for an annual total of 244,413.1 responses. FNS also estimates it will take each Individual/Household approximately .0668 hours (4 minutes) for a total of 16,326.79 ongoing annual burden hours. This is based on the assumption from the NAC pilot that the Individual/Household assistance in verification occurred within existing State business processes, such as the interview, and did not require an entirely new process. The previously approved burden for this activity is 34,289.58 burden hours approved under OMB control number 0584-0064 expiration 2/29/2024. This program change reflects an increase of 16,326.79 burden hours for this activity.

Under § 272.18(c)(3)(ii), 409,709.52 Individuals/Households will be required to respond to a notice of match results issued by the State agency following a positive NAC match. FNS estimates this will produce approximately 1 response per household for a total of 409,710 responses annually. FNS also estimates it will take each Individual/Household approximately .0835 hours (5 minutes) for a total of 34,210.75 ongoing annual burden hours. The previously approved burden for this activity is 32,020.16 burden hours approved under OMB control number 0584-0064 expiration 2/29/2024. This program change reflects an increase of 34,210.75 burden hours for this activity.

Under §§ 272.18(c)(5), 273.12(c)(3)(iv)(A), and 273.13(a)(2), 409,709.52 Individuals/Households will be required to respond to a combined notice of match results and notice of adverse action following a positive NAC match on an active participant. FNS estimates this will produce approximately 1 response per household for a total of 409,70 responses annually. FNS also estimates it will take each Individual/Household approximately .0853 hours (5 minutes) for a total of 34,210.75 ongoing annual burden hours. The previously approved burden for this activity is 97,030.92 burden hours approved under OMB control number 0584-0064 expiration 2/29/2024. This program change reflects an increase of 34,210.75 burden hours for this activity.

Affected public: State, Local or Tribal agencies, Individuals/Households.

Estimated Number of Respondents: 53 State Agencies, 5 State agencies, 1,000 eligibility workers for NAC pilot training, 10,600 eligibility workers for NAC training, and 1,148,087.62 individuals/households.

Regulation Section: 7 CFR 272.18, 273.13.

Estimated Total annual responses: Ongoing 20,205,993.28.

Estimated Total Annual Burden Hours: Ongoing 881,952.44.

Estimated Number of Responses per Respondent: 17.43.

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain IAE LLC PW1122G-JM, PW1124G1-JM, PW1124G-JM, PW1127G1-JM, PW1127GA-JM, PW1127G-JM, PW1129G-JM, PW1130G-JM, PW1133GA-JM, and PW1133G-JM model turbofan engines. The NPRM published in the Federal Register on March 24, 2022 (87 FR 16659). The NPRM was prompted by an analysis of an event on March 18, 2020, in which an Airbus Model A321-231 airplane, powered by IAE AG V2533-A5 model turbofan engines, experienced an uncontained HPT 1st-stage disk failure that resulted in high-energy debris penetrating the engine cowling. Based on a preliminary analysis of this event, on March 21, 2020, the FAA issued Emergency AD 2020-07-51 (followed by publication in the Federal Register on April 13, 2020, as a Final Rule, Request for Comments (85 FR 20402)), which requires the removal from service of certain HPT 1st-stage disks installed on IAE AG V2522-A5, V2524-A5, V2525-D5, V2527-A5, V2527E-A5, V2527M-A5, V2528-D5, V2530-A5, and V2533-A5 model turbofan engines.

Based on the root cause analysis performed since that March 2020 event, Pratt & Whitney (PW) identified a different population of HPT 1st-stage disks and HPT 2nd-stage disks that are subject to the same unsafe condition identified in AD 2020-07-51. In response, the FAA issued AD 2021-19-10 on September 10, 2021 (86 FR 50610), which requires the removal from service of certain HPT 1st-stage disks and HPT 2nd-stage disks installed on IAE LLC PW1122G-JM, PW1124G1-JM, PW1124G-JM, PW1127G1-JM, PW1127GA-JM, PW1127G-JM, PW1129G-JM, PW1130G-JM, PW1133GA-JM, and PW1133G-JM model turbofan engines.

Since the FAA issued AD 2021-19-10, PW identified another subpopulation of HPT 1st-stage disks and HPT 2nd-stage disks that require inspection and possible removal from service. Included in this additional subpopulation of HPT 1st-stage disks and HPT 2nd-stage disks are those installed on the model turbofan engines affected by this AD. In the NPRM, the FAA proposed to require the performance of a USI of the HPT 1st-stage disk and HPT 2nd-stage disk and, depending on the results of the inspections, replacement of the HPT 1st-stage disk or HPT 2nd-stage disk. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received comments from four commenters. The commenters were Air Line Pilots Association, International (ALPA), All Nippon Airways Co., Ltd. (ANA), Delta Air Lines, Inc. (DAL), and Lufthansa Technik AG (Lufthansa). The following presents the comments received on the NPRM and the FAA's response to each comment.

Since the FAA issued the NPRM, PW notified the FAA that a new revision to the service information was available. PW published PW Service Bulletin (SB) PW1000G-C-72-00-0188-00A-930A-D, Issue No: 002, dated July 8, 2022, which changes the applicability section of the SB from a range of engine serial numbers (ESNs) to a list of HPT 1st-stage disk and HPT 2nd-stage disk part numbers (P/Ns).

The FAA has updated this AD to reference PW SB PW1000G-C-72-00-0188-00A-930A-D, Issue No: 002, dated July 8, 2022. The FAA has also added paragraph (i), Credit for Previous Actions, to this AD to allow credit for performing the USI before the effective date of this AD using PW SB PW1000G-C-72-00-0188-00A-930A-D, Issue No: 001, dated September 13, 2021. This change places no additional burden on operators.

ANA and Lufthansa requested that the FAA add “or earlier” to paragraph (g)(1) of this AD to allow for the use of previously issued revisions of PW SB PW1000G-C-72-00-0112-00A-930A-D, Issue No: 005, dated July 22, 2021 (PW SB PW1000G-C-72-00-0112-00A-930A-D). ANA reasoned that PW SB PW1000G-C-72-00-0112-00A-930A-D is not incorporated by reference, nor does the NPRM reference PW SB PW1000G-C-72-00-0112-00A-930A-D, Issue No: 002 through 004.

Lufthansa reasoned that narrowing the required modification to Issue No: 005 of PW SB PW1000G-C-72-00-0112-00A-930A-D assumes that engines modified using earlier versions of the SB do not satisfy the requirements of paragraph (g)(1) of this AD. Further, Lufthansa stated that there are engines that have been modified using earlier versions of PW SB PW1000G-C-72-00-0112-00A-930A-D. In addition, Lufthansa noted that other paragraphs in the required actions do not refer to Issue No: 005 of PW SB PW1000G-C-72-00-0112-00A-930A-D, which could confuse operators when interpreting the requirements of paragraph (g)(1) of this AD.

DAL requested that the FAA revise paragraph (g)(1) of this AD to add “or later” to PW SB PW1000G-C-72-00-0112-00A-930A-D. DAL reasoned that any subsequent revision of PW SB PW1000G-C-72-00-0112-00A-930A-D would apply to this AD.

The FAA agrees that clarification is necessary and has revised paragraph (g)(1) of this AD to remove the issue number and date for PW SB PW1000G-C-72-00-0112-00A-930A-D.

DAL requested that the FAA update paragraph (c) of this AD to remove reference to ESNs. DAL commented that the NPRM includes only a range of ESNs in the applicability, which is derived from PW SB PW1000G-C-72-00-0188-00A-930A-D, Issue No: 001, dated September 13, 2021. DAL reasoned that by limiting the applicability to the range of ESNs, this AD would not account for the possibility of installing an affected HPT 1st-stage disk or HPT 2nd-stage disk onto any engine outside the ESN range that had an earlier than planned shop visit.

In response to this comment, the FAA has revised paragraph (c) of this AD, to remove “with engine serial numbers P770101 through P772647” and added, “with an installed: (1) High-pressure turbine (HPT) 1st-stage disk, part numbers (P/Ns) 30G4201, 30G6201, or 30G7301; and (2) HPT 2nd-stage disk, P/Ns 30G3902, 30G5502, or 30G6602.”

DAL requested that the FAA revise paragraph (g) of this AD to add “or later” to PW SB PW1000G-C-72-00-0188-00A-930A-D, Issue No: 002, dated July 8, 2022, to allow for the use of future approved revisions of PW SB PW1000G-C-72-00-0188-00A-930A-D, Issue No: 002, dated July 8, 2022. DAL reasoned that any subsequent revision would still apply to this AD. In addition, DAL stated that this change would include additional serial-numbered disks added to Table 2 of PW SB PW1000G-C-72-00-0188-00A-930A-D, Issue No: 002, dated July 8, 2022, in the effectivity of this AD.

The FAA disagrees with the request to revise this AD to allow for the use of future approved revisions of PW SB PW1000G-C-72-00-0188-00A-930A-D, Issue No: 002, dated July 8, 2022. Future revisions of PW SB PW1000G-C-72-00-0188-00A-930A-D, Issue No: 002, dated July 8, 2022, have not yet been published by the manufacturer or reviewed by the FAA. Any operator may request an alternative method of compliance to the requirements of paragraph (g) of this AD if future revisions of PW SB PW1000G-C-72-00-0188-00A-930A-D, Issue No: 002, dated July 8, 2022, are published. Additionally, if future revisions of PW SB PW1000G-C-72-00-0188-00A-930A-D, Issue No: 002, dated July 8, 2022, are published by the manufacturer and approved by the FAA, the FAA may consider further rulemaking at that time. The FAA did not change this AD as a result of this comment.

DAL requested that the FAA revise paragraph (g) of this AD to clarify that affected HPT 1st-stage disks and HPT 2nd-stage disks identified as scrap during the engine shop visit do not require the USI. DAL commented that the actions proposed would require the performance of a USI on affected disks even if those disks are scrapped during an engine shop visit.

The FAA disagrees that operators are required to perform a USI on an HPT 1st-stage disk or HPT 2nd-stage disk that has been removed from service. In accordance with 14 CFR 39.7, anyone who operates a product that does not meet the requirements of an applicable AD is in violation of this section. As such, the actions of this AD are only required if a part is returned to service. The FAA did not change this AD as a result of this comment.

DAL requested that the FAA revise this AD to allow credit for the accomplishment of PW SB PW1000G-C-72-00-0188-00A-930A-D, Issue No: 002, dated July 8, 2022, if accomplished by PW or PW-approved NDT suppliers (original equipment manufacturer (OEM) or aftermarket). DAL commented that PW and PW-approved NDT suppliers provide Certificates of Conformance referring to USI Codes 1 and 45S per OEM requirements rather than the Non-Destructive Inspection Procedures (NDIPs) (NDIP-1230, NDIP-1232, NDIP-1231, or NDIP-1233) referenced in the Accomplishment Instructions, paragraphs 9.A. through 9.D, of PW SB PW1000G-C-72-00-0188-00A-930A-D, Issue No: 002, dated July 8, 2022. DAL reasoned that PW or PW-approved NDT suppliers may provide an airworthiness tag instead of a Certificate of Conformance. Further, DAL noted that the new airworthiness tag and other documentation provided with the HPT 1st-stage disk or HPT 2nd-stage disk may not reference PW SB PW1000G-C-72-00-0188-00A-930A-D, Issue No: 002, dated July 8, 2022, and disks may not have the part markings required by PW SB PW1000G-C-72-00-0188-00A-930A-D, Issue No: 002, dated July 8, 2022. DAL stated that this limited documentation has and is currently being provided for the HPT 1st-stage disks and HPT 2nd-stage disks affected by PW SB PW1000G-C-72-00- 0188-00A-930A-D, Issue No: 002, dated July 8, 2022. Some of these affected HPT 1st-stage disks and HPT 2nd-stage disks are currently installed on engines that are in service or being installed during engine shop visits.

The FAA agrees that clarification is necessary and has added paragraph (h)(1)(v) to this AD, which adds the following definition of a part eligible for installation: “Any HPT 1st-stage disk or HPT 2nd-stage disk with a certificate of conformance that shows “PW1000G-C-72-00-0188-00A-930A-D,” “1 CODE 45S,” or identified by part marking “21CC332” or “SB 72-0188.”

DAL requested that the FAA expand the use of a part eligible for installation by adding the following required action as paragraph (g)(5) of this AD: “Replacement of HPT 1st-stage and HPT 2nd-stage disks: For International Aero Engines, LLC PW1122G-JM, PW1124G1-JM, PW1124G-JM, PW1127G1-JM, PW1127GA-JM, PW1127G-JM, PW1129G-JM, PW1130G-JM, PW1133GA-JM, and PW1133G-JM model turbofan engines, after the effective date of this AD, if the HPT 1st-stage and/or the HPT 2nd-stage disks require replacement, replace with a part eligible for installation.” DAL reasoned that the NPRM requires the current definition to be used when the HPT 1st-stage and HPT 2nd-stage disks fail the USI required by paragraph (g)(4) of this AD and does not ensure future de-modification is avoided. Further, DAL stated that the part eligible for installation definition should also address any scenario when the HPT 1st-stage and HPT 2nd-stage disks are replaced for any other reason.

In response to this comment, the FAA has added paragraph (i), Installation Prohibition, to this final rule.

DAL requested that the FAA revise the definition of a part eligible for installation. DAL pointed out that if an affected HPT 1st-stage disk or HPT 2nd-stage disk fails the USI, the NPRM, as proposed, would not allow installation of an HPT 1st-stage or HPT 2nd-stage disk that was upgraded using PW SB PW1000G-C-72-00-0112-00A-930A-D (HPT Block D upgrade), which does not require an inspection as specified in paragraphs (g)(2) or (3) of this AD. DAL also mentioned that the upgraded HPT 1st-stage disk or HPT 2nd-stage disk should still be allowed for installation. DAL requested that the FAA add the following additional definitions to paragraph (h)(1) of this AD:

“(iii) Any HPT 1st-stage disk that has incorporated PW SB PW1000G-C-72-00-0112-00A-930A-D and does not require an inspection per paragraph (g)(2) of this AD.

(iv) Any HPT 2nd-stage disk that has incorporated PW SB PW1000G-C-72-00-0112-00A-930A-D and does not require an inspection per paragraph (g)(3) of this AD.”

The FAA agrees with the request and has added paragraphs (h)(1)(iii) and (iv) to this AD.

DAL requested that the FAA correct paragraphs (h)(1)(i) and (ii) of this AD by changing the language from: “the USI required by paragraphs (g)(1)(i) and (g)(2) of this AD” to “the USI required by paragraphs (g)(1)(i) or (g)(2) of this AD” and “the USI required by paragraphs (g)(1)(ii) and (g)(3) of this AD” to “the USI required by paragraphs (g)(1)(ii) or (g)(3) of this AD.” DAL reasoned the affected disks could not concurrently comply with both scenarios (SB incorporated and not incorporated).

The FAA agrees for the reasons provided and has revised paragraphs (h)(1)(i) and (ii) of this AD accordingly.

ALPA expressed support for the AD.

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

The FAA reviewed Pratt & Whitney SB PW1000G-C-72-00-0188-00A-930A-D, Issue No: 002, dated July 8, 2022. This service information specifies procedures for performing a USI of the HPT 1st-stage disk and the HPT 2nd-stage disk, identified by P/N and serial number, installed on IAE LLC PW1124G1-JM, PW1127G-JM, PW1127GA-JM, PW1129G-JM, PW1130G-JM, PW1133G-JM, and PW1133GA-JM model turbofan engines. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA reviewed PW SB PW1000G-C-72-00-0112-00A-930A-D, Issue No: 005, dated July 22, 2021. This service information describes procedures for replacing the HPT 1st-stage disk, HPT 2nd-stage disk, and rotating hardware. This service information also increases the life limit of the HPT hardware by introducing a new configuration of rotating hardware.

The FAA estimates that this AD affects 189 engines installed on airplanes of U.S. registry.

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

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

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

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

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

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

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

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

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

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

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would modify Class D and Class E airspace at Idaho Falls Regional Airport, ID, to support IFR and VFR operations at the airport.

The FAA published a notice of proposed rulemaking (NPRM) in the Federal Register for FAA-2022-0569 (87 FR 38307; June 28, 2022) to modify the Class D and E surface areas, the Class E airspace area designated as an extension to a Class D or Class E surface area, the Class E airspace extending upward from 700 feet above the surface, and the Class E airspace extending upward from 1,200 feet above the surface at Idaho Falls Regional Airport, ID. Additionally, the NPRM proposed administrative changes to update the airport's legal descriptions. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D, Class E2, Class E4, and Class E5 airspace designations are published in paragraphs 5000, 6002, 6004, and 6005, respectively, of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

This document amends FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is amending 14 CFR part 71 by modifying Class D and E surface areas, the Class E airspace area designated as an extension to a Class D or Class E surface area, the Class E airspace extending upward from 700 feet above the surface, and the Class E airspace extending upward from 1,200 feet above the surface at Idaho Falls Regional Airport, ID.

Class D airspace is intended to contain the point at which an aircraft executing an instrument approach procedure (IAP) can be expected to descend to less than 1,000 feet above the surface. The 1,000-foot point of the VOR RWY 3 IAP is currently outside of the lateral boundary of the airport's Class D surface area. The Class D airspace is extended to the southwest to contain this point. Additionally, the exclusionary language for the nearby Eastern Idaho Regional Medical Center Heliport is modified to simplify the Idaho Falls Regional Airport's Class D legal description.

The Class E surface airspace is amended to be coincident with the Class D airspace legal description.

The Class E airspace area designated as an extension to a Class D or Class E surface area is removed southwest of the airport. The RWY 3 VOR 1,000 foot point is contained within the Class D surface area, and the airspace is no longer needed. The Class E airspace area designated as an extension to a Class D or Class E surface area northeast of the airport is reduced. The extension is used to contain the VOR RWY 21 1,000-foot point, and only a 4.8-mile width is needed.

The Class E airspace extending upward from 700 feet above the surface is removed southwest of the airport. The existing Class E airspace extending upward from 1,200 feet above the surface contains all procedure turns for the VOR RWY 3 and LOC BC RWY 3 approaches, and at least 1,500 feet exists between the highest terrain and the procedure turn altitudes. The Class E airspace area extending upward from 700 feet above the is expanded to contain procedure turns for the ILS/LOC RWY 21 IAP, as terrain exists within 1,500 feet of the procedure turn altitude. The Class E airspace area extending upward from 700 feet above the surface immediately encircling the airport is increased from a 7.5-mile radius to an 8-mile radius around the airport to more appropriately contain departures and circling approaches. The existing Class E airspace extending upward from 1,200 feet above the surface over the airport consistently overlapped with adjacent airspace, creating the potential for future airspace “traps.” The FAA has re-defined the boundaries of this area to more appropriately align it with other airspace and simplify its legal description.

Finally, the FAA is modifying several administrative portions of the Idaho Falls Airport's legal descriptions. The airport's geographic coordinates are updated to match the FAA's database. Additionally, the current Class D and Class E2 surface area legal descriptions are modified to replace the use of the phrases “Notice to Airmen” and “Airport/Facility Directive.” These phrases should read “Notice to Air Missions” and “Chart Supplement,” respectively, in both legal descriptions. Lastly, all navigational aids (NAVAID) are removed from the Class E4 and E5 legal description text headers, as they're not required to describe the airspace areas, and the removal of the NAVAIDs simplifies the legal descriptions.

Class D, Class E2, Class E4, and Class E5 airspace designations are published in paragraphs 5000, 6002, 6004, and 6005, respectively, of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

FAA Order JO 7400.11 is published annually and becomes effective on September 15.

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

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

In consideration of the foregoing, the FAA amends 14 CFR part 71 as follows:

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

The FAA published a notice of proposed rulemaking (NPRM) in the Federal Register for FAA-2022-0572 (87 FR 38306; June 28, 2022) that proposed to establish Class E airspace extending upward from 700 feet above the surface at McCarley Field, ID. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E5 airspace designations are published in paragraph 6005 of FAA Order JO 7400.11F, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in FAA Order JO 7400.11.

This document amends FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is amending 14 CFR part 71 by establishing Class E airspace extending upward from 700 feet above the surface at McCarley Field, ID. This airspace is designed to accommodate arriving IFR operations below 1,500 feet above the surface and departing IFR operations until they reach 1,200 feet above the surface.

Class E5 airspace designations are published in paragraph 6005 of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in FAA Order JO 7400.11.

FAA Order JO 7400.11 is published annually and becomes effective on September 15.

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

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

In consideration of the foregoing, the FAA amends 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it modifies Class E airspace at Rexburg-Madison County Airport, ID, to support IFR operations at the airport.

The FAA published a notice of proposed rulemaking (NPRM) in the Federal Register for FAA-2022-0567 (87 FR 38305; June 28, 2022) that proposed to modify the Class E airspace extending upward from 700 feet above the surface at Rexburg-Madison County Airport, ID. Additionally, the NPRM proposed an administrative change to update the airport's geographic location in the legal description. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E5 airspace designations are published in paragraph 6005 of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in FAA Order JO 7400.11.

This document amends FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is amending 14 CFR part 71 by modifying the Class E airspace extending upward from 700 feet above the surface at Rexburg-Madison County Airport, ID. North and south extensions to the existing Class E airspace are needed to ensure containment of arriving IFR operations below 1,500 feet above the surface and departing IFR operations until they reach 1,200 feet above the surface at the airport.

Additionally, the FAA is making an administrative change to the airport's legal description. The airport's geographic coordinates are updated to match the FAA's database.

Class E5 airspace designations are published in paragraph 6005 of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022 which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in FAA Order JO 7400.11.

FAA Order JO 7400.11 is published annually and becomes effective on September 15.

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

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

In consideration of the foregoing, the FAA amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would modify the Class D and Class E airspace at Grand Canyon National Park Airport, Grand Canyon, AZ, to support VFR and IFR operations at the airport.

The FAA published a notice of proposed rulemaking (NPRM) in the Federal Register for FAA-2021-0793 (87 FR 39022; June 30, 2022) to modify the Class E airspace designated as an extension to a Class D or Class E surface area, modify the Class E airspace extending upward from 700 feet above the surface, and remove the Class E airspace extending upward from 1,200 feet above the surface at Grand Canyon National Park Airport, AZ. Additionally, the NPRM proposed administrative changes to the existing Class D and Class E legal descriptions. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D, Class E4, and Class E5 airspace designations are published in paragraphs 5000, 6004, and 6005, respectively, of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

This document amends FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is amending 14 CFR part 71 to modify the Class E airspace designated as an extension to a Class D or Class E surface area, modify the Class E airspace extending upward from 700 feet above the surface, and remove the Class E airspace extending upward from 1,200 feet above the surface at Grand Canyon National Park Airport, AZ. Additionally, the FAA is making administrative changes to the Class D and Class E airspace legal descriptions.

The Class E airspace designated as an extension to a Class D or Class E surface area is reduced. The VOR RWY 3 approach requires a containment width of 4.8 miles, and additional airspace is not needed.

The Class E airspace extending upward from 700 feet above the surface is increased a half-mile in size to ensure proper depiction on a VFR sectional chart.

The Class E airspace extending upward from 1,200 feet above the surface is removed. This area is contained within the Los Angeles Class E airspace designated as a domestic en route airspace area, and duplication is not necessary.

Lastly, the FAA is making several administrative modifications to the airport's legal descriptions. The airport's geographic coordinates are updated to match the FAA's database. The Class D and Class E4 legal descriptions are updated to replace the outdated use of the phrases “Notice to Airmen” and “Airport/Facility Directory.” These phrases are amended to read “Notice to Air Missions” and “Chart Supplement,” respectively, to align with current FAA publication nomenclature. Lastly, all navigational aids (NAVAID) are removed from the Class E4 and E5 legal description text headers, as they are not required to describe the airspace areas, and removal of the NAVAIDs simplifies the legal descriptions.

Class D, E4, and E5 airspace designations are published in paragraphs 5000, 6004, and 6005, respectively, of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

FAA Order JO 7400.11 is published annually and becomes effective on September 15.

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

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

In consideration of the foregoing, the FAA amends 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it modifes and removes Class E airspace at Valle Airport, Grand Canyon, AZ, to support IFR operations at the airport.

The FAA published a notice of proposed rulemaking (NPRM) in the Federal Register for FAA-2021-0578 (87 FR 39023; June 30, 2022) that proposed to modify the Class E airspace extending upward from 700 feet above the surface, and remove the Class E airspace extending upward from 1,200 feet above the surface at Valle Airport, Grand Canyon, AZ. Additionally, the NPRM proposed to make administrative changes to the existing Class E legal description. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E5 airspace designations are published in paragraph 6005 of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in FAA Order JO 7400.11.

This document amends FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is amending 14 CFR part 71 by modifying Class E airspace extending upward from 700 feet above the surface at Valle Airport, Grand Canyon, AZ. This airspace modification removes the extensions north and south of the airport, as the extensions are no longer needed. Furthermore, to properly contain departing IFR aircraft flying toward or over rising terrain to 1,200 feet above the surface, the eastern portion of the airspace radius is increased from 6.4 miles to 6.8 miles.

Additionally, the FAA is removing the Class E airspace extending upward from 1,200 feet above the surface. This area is contained within the Los Angeles Class E airspace designated as a domestic en route airspace area, and duplication is not necessary.

Finally, the FAA is making several administrative modifications to the legal description. The city, name, and geographic coordinates at Valle Airport, Grand Canyon, AZ are updated to match the FAA's database.

Class E5 airspace designations are published in paragraph 6005 of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in FAA Order JO 7400.11.

FAA Order JO 7400.11 is published annually and becomes effective on September 15.

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

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

In consideration of the foregoing, the FAA amends 14 CFR part 71 as follows:

Background

As members of a uniformed service, NOAA Corps officers are not covered under the Whistleblower Protection Act (5 U.S.C. 2302). Furthermore, prior to the enactment of the National Oceanic and Atmospheric Administration Commissioned Officer Corps Amendments Act of 2020 (Pub. L. 116-259, “the NCAA”), NOAA Corps officers were also not covered by the Military Whistleblower Protection Act (10 U.S.C. 1034), leaving them without statutory protection for whistleblowing activities.

Section 207 of the NCAA applies the Military Whistleblower Protection Act to the NOAA Corps and authorizes the Secretary of Commerce to prescribe regulations to carry out the application of that law, including by prescribing such administrative procedures for investigation and appeal within the NOAA Corps as the Secretary considers appropriate. The Military Whistleblower Protection Act prohibits taking or threatening to take an unfavorable personnel action, or withholding or threatening to withhold a favorable personnel action, in reprisal against a member of the Armed Forces for protected communications. Protected communications are lawful communications to a Member of Congress, an Inspector General, any person or organization in the member's chain of command, and any other person or organization authorized to receive such protected communications. By contrast, a communication is unlawful, and is therefore not a protected communication, where it is prohibited by statute or regulation, including information that is classified, a trade secret, or commercial in nature, or information concerning a personal privacy interest. The Military Whistleblower Protection Act also permits the correction of military records when a prohibited personnel action is taken.

NOAA Corps officers generally have a duty to report information evidencing a violation of law or regulation (including sexual harassment or discrimination), gross mismanagement, a gross waste of funds or other resources, an abuse of authority, or a substantial and specific danger to public health or safety. This final rule protects lawful disclosures of such information, and implements the Military Whistleblower Protection Act for the NOAA Corps pursuant to Section 207 of the NCAA, prohibiting any NOAA Corps officer or employee of the Department of Commerce from taking or threatening to take a personnel action, or withholding or threatening to withhold a personnel action against a NOAA Corps officer for making or preparing or being perceived as making or preparing a protected communication.

This final rule prescribes responsibilities of the Inspector General of the Department of Commerce to investigate claims of reprisal against NOAA Corps officers and to report those findings to the Secretary, the Administrator, the NOAA Deputy Under Secretary for Operations, the Director, and to the NOAA Corps officer or former NOAA Corps officer making the allegation. Based on the Inspector General's report, the Director or Deputy Under Secretary for Operations, as appropriate, are required to take appropriate administrative disciplinary action against the individual or individuals found to have taken, withheld, or threatened a personnel action as reprisal.

This final rule prescribes procedures by which a NOAA Corps officer or former NOAA Corps officer who has filed a complaint investigated by the Inspector General alleging reprisal may request that the Director convene a Records Examination Board to determine whether information contained in a NOAA Corps officer's personnel files should be corrected and to make recommendations to the Director concerning corrections, deletions, or additions to the NOAA Corps officer or former NOAA Corps officer's personnel records. Under these procedures, the Director must then issue a decision concerning the correction of the NOAA Corps officer's or former NOAA Corps officer's records within 60 days and notify the Inspector General of their decision. If the NOAA Corps officer or former NOAA Corps officer disagrees with the Director's decision on a Records Examination Board's recommendations, the officer may request an additional level of review by the Deputy Under Secretary for Operations, whose decision constitutes the final agency action.

Pursuant to 5 U.S.C. 553(a)(2), the provisions of the Administrative Procedure Act (APA) requiring notice of proposed rulemaking and the opportunity for public participation are inapplicable to this final rule because this rule falls within the agency management and personnel exception as it strictly regulates NOAA Corps personnel, addresses internal agency management, and affects only persons outside the agency through protecting certain communications to specified members of the public.

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

Because this regulation is exempt from the notice and comment provisions of the APA, the requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply. Accordingly, no Regulatory Flexibility Analysis is required and none has been prepared.

This rule does not have any collection of information requirements under the Paperwork Reduction Act.

For the reasons set out in the preamble, 15 CFR part 998 is amended as follows:

Electronic Availability

This document and additional information concerning OFAC are available on OFAC's website: www.treasury.gov/ofac.

On July 1, 2011, OFAC issued the Libyan Sanctions Regulations, 31 CFR part 570 (76 FR 38562, July 1, 2011) (the “Regulations”), to implement Executive Order (E.O.) 13566 of February 25, 2011, “Blocking Property and Prohibiting Certain Transactions Related to Libya” (76 FR 11315, March 2, 2011), pursuant to authorities delegated to the Secretary of the Treasury in E.O. 13566. The Regulations were initially issued in abbreviated form for the purpose of providing immediate guidance to the public. OFAC is revising the Regulations to further implement E.O. 13566 and to implement E.O. 13726 of April 19, 2016, “Blocking Property and Suspending Entry Into the United States of Persons Contributing to the Situation in Libya” (81 FR 23559, April 21, 2016). OFAC is amending and reissuing the Regulations as a more comprehensive set of regulations that includes additional interpretive guidance and definitions, general licenses, and other regulatory provisions that will provide further guidance to the public. Due to the number of regulatory sections being updated or added, OFAC is reissuing the Regulations in their entirety.

On February 25, 2011, the President, invoking the authority of, inter alia, the International Emergency Economic Powers Act (50 U.S.C. 1701-1706) (IEEPA), issued E.O. 13566, effective at 8:00 p.m. eastern standard time on February 25, 2011. In E.O. 13566, the President found that Colonel Muammar Qadhafi, his government, and close associates have taken extreme measures against the people of Libya, including by using weapons of war, mercenaries, and wanton violence against unarmed civilians. The President further found that there is a serious risk that Libyan state assets would be misappropriated by Qadhafi, members of his government, members of his family, or his close associates if those assets are not protected. The President found that these circumstances, the prolonged attacks, and the increased numbers of Libyans seeking refuge in other countries from the attacks, had caused a deterioration in the security of Libya and posed a serious risk to its stability, thereby constituting an unusual and extraordinary threat to the national security and foreign policy of the United States and declared a national emergency to deal with that threat.

Section 1 of E.O. 13566 blocks, with certain exceptions, all property and interests in property that are in the United States, that come within the United States, or that are or come within the possession or control of any U.S. person of: (a) the persons listed in the Annex to E.O. 13566; and (b) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State: (i) to be a senior official of the Government of Libya; (ii) to be a child of Colonel Muammar Qadhafi; (iii) to be responsible for or complicit in, or responsible for ordering, controlling, or otherwise directing, or to have participated in, the commission of human rights abuses related to political repression in Libya; (iv) to have materially assisted, sponsored, or provided financial, material, logistical, or technical support for, or goods or services in support of the activities described in section 1(b)(iii) of E.O. 13566 or any person whose property and interests in property are blocked pursuant to E.O. 13566; (v) to be owned or controlled by, or to have acted or purported to act for or on behalf of, any person whose property and interests in property are blocked pursuant to E.O. 13566; or (vi) to be a spouse or dependent child of any person whose property and interests in property are blocked pursuant to E.O. 13566. The property and interests in property of the persons described above may not be transferred, paid, exported, withdrawn, or otherwise dealt in.

Section 2 of E.O. 13566 blocks, with certain exceptions, all property and interests in property that are in the United States, that come within the United States, or that are or come within the possession or control of any U.S. person, of the Government of Libya, its agencies, instrumentalities, and controlled entities, and the Central Bank of Libya.

In section 4 of E.O. 13566, the President determined that the making of donations of the type of articles specified in section 203(b)(2) of IEEPA (50 U.S.C. 1702(b)(2)), by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to E.O. 13566 would seriously impair the President's ability to deal with the national emergency declared in E.O. 13566. The President therefore prohibited the donation of such items except to the extent provided by statutes, or in regulations, orders, directives or licenses that may be issued pursuant to E.O. 13566.

Section 5 of E.O. 13566 provides that the prohibition on any transaction or dealing in blocked property or interests in property includes the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to E.O. 13566, and the receipt of any contribution or provision of funds, goods, or services from any such person.

Section 7 of E.O. 13566 prohibits any transaction by a U.S. person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate any of the prohibitions set forth in E.O. 13566, as well as any conspiracy formed to violate such prohibitions.

Section 10 of E.O. 13566 authorizes the Secretary of the Treasury, in consultation with the Secretary of State, to take such actions, including the promulgation of rules and regulations, and to employ all powers granted to the President by IEEPA as may be necessary to carry out the purposes of E.O. 13566. Section 10 also provides that the Secretary of the Treasury may redelegate any of these functions to other officers and agencies of the U.S. Government.

On April 19, 2016, the President, invoking the authority of, inter alia, IEEPA and the United Nations Participation Act (22 U.S.C. 287c) (UNPA), issued E.O. 13726. In E.O. 13726, the President expanded the scope of the national emergency declared in E.O. 13566, finding that the ongoing violence in Libya, human rights abuses, violations of the arms embargo imposed by United Nations Security Council Resolution 1970 (2011), and misappropriation of Libya's natural resources threatened the peace, security, stability, sovereignty, democratic transition, and territorial integrity of Libya, and thereby constituted an unusual and extraordinary threat to the national security and foreign policy of the United States.

Section 1(a) of E.O. 13726 blocks, with certain exceptions, all property and interests in property that are in the United States, that come within the United States, or that are or come within the possession or control of any U.S. person of any person determined by the Secretary of the Treasury, in consultation with the Secretary of State: (i) to be responsible for or complicit in, or to have engaged in, directly or indirectly, any of the following: (A) actions or policies that threaten the peace, security, or stability of Libya, including through the supply of arms or related materiel; (B) actions or policies that obstruct, undermine, delay, or impede, or pose a significant risk of obstructing, undermining, delaying, or impeding, the adoption of or political transition to a Government of National Accord or a successor government; (C) actions that may lead to or result in the misappropriation of state assets of Libya; or (D) threatening or coercing Libyan state financial institutions or the Libyan National Oil Company; (ii) to be planning, directing, or committing, or to have planned, directed, or committed, attacks against any Libyan state facility or installation (including oil facilities), against any air, land, or sea port in Libya, or against any foreign mission in Libya; (iii) to be involved in, or to have been involved in, the targeting of civilians through the commission of acts of violence, abduction, forced displacement, or attacks on schools, hospitals, religious sites, or locations where civilians are seeking refuge, or through conduct that would constitute a serious abuse or violation of human rights or a violation of international humanitarian law; (iv) to be involved in, or to have been involved in, the illicit exploitation of crude oil or any other natural resources in Libya, including the illicit production, refining, brokering, sale, purchase, or export of Libyan oil; (v) to be a leader of an entity that has, or whose members have, engaged in any activity described in section 1(a)(i), (a)(ii), (a)(iii), or (a)(iv) of E.O. 13726; (vi) to have materially assisted, sponsored, or provided financial, material, logistical, or technological support for, or goods or services in support of: (A) any of the activities described in section1(a)(i), (a)(ii), (a)(iii), or (a)(iv) of E.O. 13726; or (B) any person whose property and interests in property are blocked pursuant to E.O. 13726; or (vii) to be owned or controlled by, or to have acted or purported to act for or on behalf of, any person whose property and interests in property are blocked pursuant to E.O. 13726.

In section 3 of E.O. 13726, the President determined that the making of donations of the type of articles specified in section 203(b)(2) of IEEPA (50 U.S.C. 1702(b)(2)), by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to E.O. 13726 would seriously impair the President's ability to deal with the national emergency declared in E.O. 13726. The President therefore prohibited the donation of such items except to the extent provided by statutes, or in regulations, orders, directives or licenses that may be issued pursuant to E.O. 13726.

Section 4 of E.O. 13726 provides that the prohibition on any transaction or dealing in blocked property or interests in property includes the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to E.O. 13726, and the receipt of any contribution or provision of funds, goods or services from any such person.

Section 5 of E.O. 13726 prohibits any transaction by a U.S. person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate any of the prohibitions set forth in E.O. 13726, as well as any conspiracy formed to violate such prohibitions.

Section 8 of E.O. 13726 authorizes the Secretary of the Treasury, in consultation with the Secretary of State, to take such actions, including the promulgation of rules and regulations, and to employ all powers granted to the President by IEEPA and the UNPA, as may be necessary to carry out the purposes of E.O. 13726. Section 8 also provides that the Secretary of the Treasury may redelegate any of these functions to other officers and agencies of the U.S. Government.

In furtherance of the purposes of E.O. 13566 and E.O. 13726, OFAC is reissuing the Regulations. The Regulations implement targeted sanctions that are directed at persons determined to meet the criteria set forth in § 570.201 of the Regulations, as well as sanctions that may be set forth in any future Executive orders issued pursuant to the national emergency declared in E.O. 13566. The sanctions in E.O. 13566 and E.O. 13726 do not generally prohibit trade or the provision of banking or other financial services to the country of Libya. Instead, the sanctions in E.O. 13566 and E.O. 13726 apply where the transaction or service in question involves property or interests in property that are blocked pursuant to these Executive orders.

Subpart A of the Regulations clarifies the relation of this part to other laws and regulations. Subpart B of the Regulations implements the prohibitions contained in sections 1, 2, and 7 of E.O. 13566 and sections 1 and 5 of E.O. 13726, as well as the prohibitions contained in any further Executive orders issued pursuant to the national emergency declared in E.O. 13566. See, e.g., §§ 570.201 and 570.205. Persons identified in the Annex to E.O. 13566, designated by or under the authority of the Secretary of the Treasury pursuant to E.O. 13566 or E.O. 13726, or otherwise blocked pursuant to E.O. 13566 or E.O. 13726, as well as persons who are blocked pursuant to any further Executive orders issued pursuant to the national emergency declared in E.O. 13566, are referred to throughout the Regulations as “persons whose property and interests in property are blocked pursuant to § 570.201.” Section 570.201(d) provides that the prohibitions in § 570.201(a) apply except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this part, and notwithstanding any contract entered into or any license or permit granted prior to the effective date. As such, the term “persons whose property and interests in property are blocked pursuant to § 570.201” in the Regulations does not include the Government of Libya, with the exception of funds of the Libyan Investment Authority (LIA) blocked as of September 19, 2011, because, with the noted exception, OFAC unblocked the Government of Libya by general license as of December 16, 2011. The names of persons designated or identified as blocked pursuant to E.O. 13566 or E.O. 13726, or any further Executive orders issued pursuant to the national emergency declared therein, are published on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List), which is accessible via OFAC's website. Those names also are published in the Federal Register as they are added to the SDN List.

Sections 570.202 and 570.203 of subpart B detail the effect of transfers of blocked property in violation of the Regulations and set forth the requirement to hold blocked funds, such as currency, bank deposits, or liquidated financial obligations, in interest-bearing blocked accounts. Section 570.204 of subpart B provides that all expenses incident to the maintenance of blocked tangible property shall be the responsibility of the owners and operators of such property, and that such expenses shall not be met from blocked funds, unless otherwise authorized. The section further provides that blocked property may, in OFAC's discretion, be sold or liquidated and the net proceeds placed in a blocked interest-bearing account in the name of the owner of the property.

Section 570.205 of subpart B prohibits any transaction by a U.S. person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate any of the prohibitions set forth in § 570.201 of the Regulations, and any conspiracy formed to violate such prohibitions.

Section 570.206 of subpart B states certain transactions that are exempt from the prohibitions of the Regulations pursuant to section 203(b) of IEEPA (50 U.S.C. 1702(b)). As further set forth in this section, these exemptions do not apply to transactions involving persons whose property and interests in property are blocked under the authority of the UNPA. In subpart C of the Regulations, new definitions are being added to other key terms used throughout the Regulations. Because these new definitions were inserted in alphabetical order, the definitions that were in the prior abbreviated set of regulations have been renumbered. The definition of Government of Libya, previously in § 560.304, has been redesignated as § 570.305 and modified, including to list types of entities that are directly or indirectly owned or controlled by the Government of Libya. Similarly, in subpart D, which contains interpretive sections regarding the Regulations, certain provisions have been renumbered and others added to those in the prior abbreviated set of regulations. Section 570.411 of subpart D explains that the property and interests in property of an entity are blocked if the entity is directly or indirectly owned, whether individually or in the aggregate, 50 percent or more by one or more persons whose property and interests in property are blocked, whether or not the entity itself is incorporated into OFAC's SDN List.

Transactions otherwise prohibited by the Regulations but found to be consistent with U.S. policy may be authorized by one of the general licenses contained in subpart E of the Regulations or by a specific license issued pursuant to the procedures described in subpart E of 31 CFR part 501. OFAC is redesignating, with modifications, the authorizations for the provision of certain legal services previously in § 570.506 as § 570.507 and the authorization for the provision of emergency services previously in § 570.507 as § 570.509. Because OFAC unblocked all property and interests in property of the Government of Libya by general license as of December 16, 2011, with the exception of funds of the LIA blocked as of September 19, 2011, the authorization for Libyan diplomatic missions previously in § 570.508 has been removed from the Regulations. OFAC is adding §§ 570.506, 570.508, 570.510, and 570.511, which authorize, respectively, certain transactions relating to the following: investment and reinvestment of blocked funds by U.S. financial institutions, certain payments for legal services, the official business of the United States Government, and official activities of certain international organizations and other international entities in Libya.

OFAC is also incorporating five general licenses into the Regulations that were previously only available on OFAC's website, with modifications, including updates to the email address for certain reporting requirements. Section 570.512 incorporates General License 11, unblocking the property and interests in property of the Government of Libya, its agencies, instrumentalities, and controlled entities, and the Central Bank of Libya, but not any funds of the LIA nor any entities owned or controlled by the LIA blocked as of September 19, 2011. General License 11 was issued on OFAC's website on December 16, 2011, and will be removed from the website upon publication of this rule. Section 570.513 incorporates General License 4, authorizing U.S. persons, subject to certain conditions, to continue the normal operations of an investment fund in the United States in which certain persons whose property and interests in property are blocked have both a non-controlling and a minority interest. This authorization has been modified in the Regulations to revise the condition that authorized funds transfers must be made into a blocked account to include transfers to all persons blocked pursuant to § 570.201, and to no longer require monthly reporting. General License 4 was issued on OFAC's website on April 8, 2011, and will be removed from the website upon publication of this rule. Section 570.514 incorporates General License 7A, authorizing certain transactions involving the Libyan National Oil Corporation (NOC) or entities owned or controlled by the NOC, and unblocking property and interests in property of the NOC and entities owned or controlled by the NOC. This authorization has been modified in the Regulations to omit the entities named in General License 7A as being owned or controlled by the NOC, which were exemplary. General License 7A, which superseded General License 7, was issued on OFAC's website on September 19, 2011, and will be removed from the website upon publication of this rule. Section 570.515 incorporates General License 9, unblocking the funds of the General National Maritime Transport Company. General License 9 was published on OFAC's website on November 18, 2011, and will be removed from the website upon publication of this rule. Section 570.516 incorporates General License 10, unblocking the property and interests in property of Arab Turkish Bank and North African International Bank. General License 10 was issued on OFAC's website on December 1, 2011, and will be removed from the website upon publication of this rule. General licenses and statements of licensing policy relating to this part also may be available through the Libya sanctions page on OFAC's website: www.treas.gov/ofac.

Subpart F of the Regulations refers to subpart C of part 501 for recordkeeping and reporting requirements. Subpart G of the Regulations describes the civil and criminal penalties applicable to violations of the Regulations, as well as the procedures governing the potential imposition of a civil monetary penalty or issuance of a Finding of Violation. Subpart G also refers to appendix A of part 501 for a more complete description of these procedures.

Subpart H of the Regulations refers to subpart E of part 501 for applicable provisions relating to administrative procedures and contains a delegation of certain authorities of the Secretary of the Treasury. Subpart I of the Regulations sets forth a Paperwork Reduction Act notice.

Because the Regulations involve a foreign affairs function, the provisions of E.O. 12866 of September 30, 1993, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), and the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date, are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

The collections of information related to the Regulations are contained in 31 CFR part 501 (the “Reporting, Procedures and Penalties Regulations”). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505-0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

Throughout this document, “we,” “us,” and “our” refer to the EPA.

On May 24, 2022, the EPA proposed to withdraw the portion of a March 25, 2019 final action conditionally approving SIP submissions from the State of California under the CAA to address contingency measure requirements for the 2008 ozone NAAQS in the San Joaquin Valley, California ozone nonattainment area. 1 The SIP submissions include the portions of the 2016 Ozone Plan for 2008 8-Hour Ozone Standard (“2016 Ozone Plan”) and the 2018 Updates to the California State Implementation Plan (“2018 SIP Update”) that address the contingency measure requirement for San Joaquin Valley. In the same rule, the EPA also proposed to partially approve and partially disapprove these SIP submissions. Specifically, consistent with a 2021 decision by the Ninth Circuit remanding the EPA's previous conditional approval of the contingency measure element, the EPA proposed to disapprove the submissions for failure to meet the contingency measure SIP requirements under CAA sections 172(c)(9) and 182(c)(9), except for a state measure referred to as the “Enhanced Enforcement Activities Program” measure for which the EPA proposed approval based on SIP-strengthening grounds.

In our proposed rule, we provided background information on ozone and its precursor emissions ( i.e., volatile organic compounds and oxides of nitrogen), common sources of ozone precursor emissions, and health effects associated with elevated ozone levels. We also provided background information on the EPA's establishment of the ozone NAAQS, including the ozone NAAQS that we established in 2008 (“2008 ozone NAAQS”), the SIP submissions that are required under the CAA for areas designated as nonattainment for the 2008 ozone NAAQS, and the roles and responsibilities of the California Air Resources Board (CARB) and the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD or “District”).

We also discussed the specific SIP submission requirements under CAA sections 172(c)(9) and 182(c)(9) for contingency measures. In short, contingency measures are additional controls or measures to be implemented in the event the area fails to make reasonable further progress (RFP) or to attain the NAAQS by the attainment date. Among other requirements, contingency measures must be designed so as to be implemented prospectively; already-implemented control measures may not serve as contingency measures even if they provide emissions reductions beyond those needed for any other CAA purpose and should provide for emissions reductions approximately equivalent to one year's worth of RFP.

In our proposed rule, we described the State of California's SIP submissions for the San Joaquin Valley “Extreme” nonattainment area for the 2008 ozone NAAQS, including the District's 2016 Ozone Plan and the San Joaquin Valley portion of the 2018 SIP Update. We noted that, in 2019, the EPA approved the 2016 Ozone Plan and the relevant portion of the 2018 SIP Update as meeting all the applicable statutory and regulatory requirements for the San Joaquin Valley Extreme nonattainment area for the 2008 ozone NAAQS, with the exception of the contingency measure requirement. 2

As described further in the proposed rule, the contingency measure element of the 2016 Ozone Plan, as modified by the 2018 SIP Update, includes the Enhanced Enforcement Activities Program and an evaluation of the surplus emissions reductions from already-implemented measures. 3 In addition, the District and CARB made commitments to adopt and submit a contingency provision  4 as part of the District's architectural coatings rule within a year of the final conditional approval. Once adopted, submitted, and approved, the contingency provision in the architectural coatings rule would become a third part of the contingency measure element. The EPA estimated that the contingency measure, i.e., the contingency provision in the architectural coatings rule, would achieve emissions reductions equivalent to approximately 9 percent of one year's worth of RFP.

As discussed in our proposed rule, we conditionally approved the contingency measure element in our March 25, 2019 final rule based on the District's and CARB's commitments and found that the one contingency measure ( i.e., once adopted, submitted, and approved by the EPA) would be sufficient for the State and District to meet the contingency measure requirement for San Joaquin Valley for the 2008 ozone NAAQS, notwithstanding expected emissions reductions from the measure equivalent to only a fraction of one year's worth of RFP. 5 In our March 25, 2019 final rule, we found the reductions from the one contingency measure to be sufficient when considered together with the substantial surplus emissions reductions we anticipated to occur in the future from already-implemented measures and from other approved measures in the plan. 6 In our March 25, 2019 final rule, we approved CARB's Enhanced Enforcement Activities Program measure as a SIP-strengthening measure rather than as a contingency measure. 7

In our May 24, 2022 proposed rule, we noted that our final conditional approval of the contingency measure element was the subject of a legal challenge and that, in a 2021 Ninth Circuit decision in the Association of Irritated Residents v. EPA case, the Court remanded the conditional approval action back to the Agency. 8 In so doing, the Court found that, by taking into account the emissions reductions from already-implemented measures to find that the contingency measure would suffice to meet the applicable requirement, the EPA was circumventing the court's 2016 holding in Bahr v. EPA. 9 The court rejected the EPA's arguments that the Agency's approach was grounded in its long-standing guidance and was consistent with the court's 2016 Bahr v. EPA decision. With respect to CARB's Enhanced Enforcement Activities Program measure, the court upheld the EPA's approval of it as SIP-strengthening and held that the measure was enforceable according to its terms.

In our May 24, 2022 proposed rule, we found that, if we do not take into account surplus emissions reductions, then the one contingency measure (the contingency provision in the District's architectural coatings rule) must shoulder the entire burden of achieving roughly one year's worth of RFP (if triggered) but would only provide approximately 9 percent of one year's worth of progress. Because the contingency measure would not provide reductions roughly equivalent to one year's worth of RFP, we found that the conditional approval could no longer be supported, and we proposed to withdraw our previous conditional approval of the contingency measure element on that basis. For the same reasons that justify the proposed withdrawal of the conditional approval, we proposed to disapprove the contingency measure element except for the Enhanced Enforcement Activities Program measure.

With respect to the Enhanced Enforcement Activities Program measure, in our May 24, 2022 proposed rule, we proposed approval for the same reasons that we provided in the March 25, 2019 final rule and that were upheld by the Ninth Circuit. Namely, while we find that the Enhanced Enforcement Activities Program measure fails to meet the requirements for a stand-alone contingency measure, we also find that it strengthens the SIP by triggering certain actions, upon a failure to meet RFP or a failure to attain by the applicable attainment date, that may lead to emissions reductions that would not otherwise be achieved, thereby contributing in part to any remedy for an RFP shortfall or failure to attain.

For more background information and a more extensive discussion of the rationale for our proposed action, please see our May 24, 2022 proposed rule.

Our proposed rule provided for a 30-day comment period during which we received one response, which is a letter supporting our proposed action. 10

For the reasons summarized above and presented in more detail in the proposed rule, we are taking final action to withdraw our March 25, 2019 conditional approval of the contingency measure element of the 2016 Ozone Plan, as modified by the 2018 SIP Update, for the San Joaquin Valley for the 2008 ozone NAAQS. We are also taking final action to partially approve and partially disapprove the contingency measure element of the 2016 Ozone Plan, as modified by the 2018 SIP Update, with respect to the contingency measure requirements under CAA sections 172(c)(9) and 182(c)(9). Specifically, we are disapproving the contingency measure element except for the Enhanced Enforcement Activities Program measure. We are approving the Enhanced Enforcement Activities Program measure because, while we find that the Enhanced Enforcement Activities Program measure fails to meet the requirements for a stand-alone contingency measure, we also find that it strengthens the SIP by triggering certain actions, upon a failure to meet RFP or failure to attain by the applicable attainment date, that may lead to emissions reductions that would not otherwise be achieved, thereby contributing in part to any remedy for an RFP shortfall or failure to attain.

Through this final action, we are revising the section of the CFR where the California SIP is identified by removing the contingency measure element of the 2016 Ozone Plan, as modified by the 2018 SIP Update, that we previously approved (conditionally), except for the Enhanced Enforcement Activities Program measure. 11 Lastly, we are making a protective finding under the transportation conformity rule because, notwithstanding the partial disapproval of the contingency measure element, the 2016 Ozone Plan, as modified by the 2018 SIP Update, reflects adopted control measures and contains enforceable commitments that fully satisfy the emission reduction requirements for RFP and attainment for the 2008 ozone NAAQS. 12

As a consequence of the partial disapproval of the contingency measure element, within 24 months of the effective date of this action, the EPA must promulgate a federal implementation plan under section 110(c) unless we approve subsequent SIP submissions that correct the plan deficiencies. In addition, under 40 CFR 52.35, the offset sanction in CAA section 179(b)(2) will be imposed 18 months after the effective date of this action, and the highway funding sanction in CAA section 179(b)(1) will be imposed six months after the offset sanction is imposed. A sanction will not be imposed if the EPA determines that a subsequent SIP submission corrects the identified deficiencies before the applicable deadline.

Additional information about these statutes and Executive Orders can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , because the partial SIP disapproval action under section 110 and subchapter I, part D of the Clean Air Act will not in-and-of itself create any new information collection burdens but simply disapproves portions of certain state plans submitted for inclusion into the SIP. Burden is defined at 5 CFR 1320.3(b).

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) a small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this action on small entities, I certify that this action will not have a significant impact on a substantial number of small entities. This rule does not impose any requirements or create impacts on small entities. The partial SIP disapproval action under section 110 and subchapter I, part D of the Clean Air Act will not in-and-of itself create any new requirements but simply disapproves portions of certain state plans submitted for inclusion into the SIP. Accordingly, it affords no opportunity for the EPA to fashion for small entities less burdensome compliance or reporting requirements or timetables or exemptions from all or part of the rule. The fact that the Clean Air Act prescribes that various consequences ( e.g., higher offset requirements) may or will result from disapproval actions does not mean that the EPA either can or must conduct a regulatory flexibility analysis for this action. Therefore, this action will not have a significant economic impact on a substantial number of small entities.

This action contains no federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or the private sector. The EPA has determined that the partial disapproval action does not include a federal mandate that may result in estimated costs of $100 million or more to either state, local, or tribal governments in the aggregate, or to the private sector. This action disapproves portions of certain pre-existing plans under state or local law and imposes no new requirements. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, result from this action.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires the EPA 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 national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely disapproves portions of certain state plans for inclusion into the SIP and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, Executive Order 13132 does not apply to this action.

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP that the EPA is partially approving and partially disapproving would not apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and the EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). This partial SIP disapproval action under section 110 and subchapter I, part D of the Clean Air Act will not in-and-of itself create any new regulations but simply disapproves portions of certain state plans submitted for inclusion into the SIP.

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

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs the EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. The EPA believes that this action is not subject to requirements of section 12(d) of NTTAA because application of those requirements would be inconsistent with the Clean Air Act.

The state did not evaluate environmental justice considerations as part of its SIP submittal. There is no information in the record inconsistent with the stated goals of Executive Order 12898 of achieving environmental justice for people of color, low-income populations, and indigenous peoples.

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

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

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

I. Background

On May 31, 2022 (87 FR 32379), EPA published a notice of proposed rulemaking (NPRM) for the Commonwealth of Pennsylvania. In the NPRM, EPA proposed approval of Pennsylvania's existing Federally-approved NNSR regulations for the 2015 8-hour ozone NAAQS. The formal SIP revision was submitted by Pennsylvania Department of Environmental Protection (PADEP) on behalf of the Commonwealth of Pennsylvania (Commonwealth or Pennsylvania) on January 8, 2021.

Pennsylvania is certifying that the Commonwealth's federally approved nonattainment new source review regulation in 25 Pennsylvania Code of Regulations (Pa. Code) Chapter 127 applies statewide and covers the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE nonattainment area for the 2015 ozone NAAQS. Pennsylvania asserts that its nonattainment new source review program is at least as stringent as the requirements at 40 Code of Federal Regulations (CFR) 51.165, as amended by the final rule titled “Implementation of the 2015 National Ambient Air Quality Standards for Ozone: Nonattainment Area State Implementation Plan Requirements” (SRR) for ozone and its precursors. See 83 FR 62998 (December 6, 2018).

This rulemaking action is specific to Pennsylvania's NNSR requirements. NNSR is a preconstruction review permit program that applies to new major stationary sources or major modifications at existing sources located in a nonattainment area. The specific NNSR requirements for the 2015 8-hour ozone NAAQS are located in 40 CFR 51.160-165.

The minimum SIP requirements for NNSR permitting programs for the 2015 8-hour ozone NAAQS are located in 40 CFR 51.165. See 40 CFR 51.1314. Under the 2015 8-hour ozone NAAQS NNSR SIP requirements, the SIP for each ozone nonattainment area must contain NNSR provisions that: (1) set major source thresholds for oxides of nitrogen (NO X ) and volatile organic compounds (VOCs) pursuant to 40 CFR 51.165(a)(1)(iv)(A)(1)(i)-(iv); (2) classify physical changes as a major source if the change would constitute a major source by itself pursuant to 40 CFR 51.165(a)(1)(iv)(A)(3); (3) consider any significant net emissions increase of NO X as a significant net emissions increase for ozone pursuant to 40 CFR 51.165(a)(1)(v)(E); (4) consider certain increases of VOC emissions in extreme ozone nonattainment areas as a significant net emissions increase and a major modification for ozone pursuant to 40 CFR 51.165(a)(1)(v)(F); (5) set significant emissions rates for VOCs and NO X as ozone precursors pursuant to 40 CFR 51.165(a)(1)(x)(A)-(C) and (E); (6) contain provisions for emissions reductions credits pursuant to 40 CFR 51.165(a)(3)(ii)(C)(1)-(2); (7) provide that the requirements applicable to VOC also apply to NO X pursuant to 40 CFR 51.165(a)(8); and (8) set offset ratios for VOC and NO X pursuant to 40 CFR 51.165(a)(9)(i)-(iii) (renumbered as (a)(9)(ii)-(iv) under the SIP Requirements Rule for the 2008 8-hour ozone NAAQS).

Pennsylvania's SIP approved NNSR program, established in the Pa. Code Rule 25 Pa. Code Chapter 127—Construction, Modification, Reactivation, and Operation of Sources, applies to the construction and modification of major stationary sources in nonattainment areas. In the October 30, 2017, SIP revision, Pennsylvania certifies that the version of 25 Pa. Code Chapter 127 in the SIP is at least as stringent as the Federal NNSR requirements for the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE nonattainment area. EPA last approved revisions to Pennsylvania's major NNSR SIP on February 22, 2019. In that action, EPA approved Pennsylvania's NNSR program under the 2008 8-hour ozone NAAQS and made PADEP's NNSR program consistent with Federal requirements. See 84 FR 5598 (February 22, 2019). The version of 25 Pa. Code Chapter 127 that is contained in the current SIP and covers the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE nonattainment area and is adequate to meet all applicable NNSR requirements for the 2015 8-hour ozone NAAQS found in 40 CFR 51.165, and the SRR.

Other specific requirements of the SRR and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here.

EPA received one comment on our proposed approval of Pennsylvania's 2015 Ozone NNSR Certification SIP. A summary of the comment and EPA's response is provided herein. The comment received is included in the docket for this action.

Comment: The commenter asserts that EPA failed to address the fact that Pennsylvania submitted a letter withdrawing specific portions of the January 8, 2021, SIP revision submittal related to inter-precursor trading (IPT) provisions. In doing so, EPA has proposed an approval without excluding the IPT provision that unlawfully allows IPT to satisfy the Clean Air Act's offset requirements for ozone precursors. The commentor asserts that EPA must state explicitly in its final action that it is not approving the IPT provisions of the January 8, 2021, SIP and that it is approving, as a SIP commitment, Pennsylvania's promise not to issue any NNSR permits or plan approvals that rely on IPT. Finally, the commentor asserts that the approval should be conditional on Pennsylvania following through on their commitment to remove ozone related IPT provision from the commonwealth's regulations.

Response: On January 29, 2021, the United States Court of Appeals for the D.C. Circuit concluded that ozone IPT trading is not permissible under the CAA and vacated ozone IPT trading, i.e., the IPT trading provision in the Federal NNSR regulations. Sierra Club v. EPA, 985 F.3d 1055 (D.C. Cir. 2021). EPA removed the language allowing IPT trading for ozone from its NNSR regulations. 86 FR 37918 (July 19, 2021). In response to that the July 19, 2021, rule, on August 23, 2021, PADEP sent a letter to EPA that withdrew from EPA's review the specific portions of PADEP's January 8, 2021, SIP revision submittal that related to inter-precursor trading (IPT).

EPA agrees with comment to the extent that EPA should have affirmatively addressed the August 23, 2021, letter and the fact that PADEP had withdrawn from EPA review the (IPT) provisions submitted with the January 8, 2021, SIP revision. Pennsylvania clearly intends to not apply the IPT provisions to ozone as made evident by the August 23, 2021, letter to the EPA. Furthermore, we acknowledged in this action that the provisions for IPT for ozone had been withdrawn from our consideration, as reflected by our inclusion of the August 23, 2021, letter in the docket for the action. Therefore, EPA's proposed approval of Pennsylvania's 2015 ozone NNSR certification SIP did not at any time include a proposed approval of any provisions relating to IPT for ozone, consistent with the D.C. Circuit's decision. EPA affirms that, in light of the D.C. Circuit's decision (and consistent with Pennsylvania's explicitly stated intent in the withdrawal letter), it would be inappropriate for Pennsylvania to issue NNSR permits which relied on IPT for ozone precursors. Pennsylvania's regulations for the issuance of plan approvals provide for public notice and comment, in accordance with CAA requirements. EPA has the ability to review and comment on any deficiency in a draft plan approval, including an inappropriate use of IPT for ozone.

However, EPA disagrees with the commentor's assertion that the approval must be conditional on Pennsylvania following through on its commitment to remove the IPT provisions in the commonwealth's regulations. This action only addresses the adequacy of Pennsylvania's SIP for purposes of implementing the 2015 ozone NAAQS. Because of the withdrawal reflected in the Commonwealth's August 23, 2021, letter, the IPT language in Pennsylvania's regulations is not before EPA for approval in this action. Since the Pennsylvania provisions included in this SIP submission are adequate for purposes of implementing the 2015 ozone standard, Pennsylvania's 2015 Ozone NNSR Certification SIP is approvable without the condition requested by the commenter.

EPA's review of this material indicates that Pennsylvania's submission fulfills the 40 CFR 51.1114 revision requirement, meets the requirements of CAA sections 110 and 172 and the minimum SIP requirements of 40 CFR 51.165. Therefore, we are finalizing our approval of Pennsylvania's NNSR SIP for 2015 8-hour ozone NAAQS.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

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

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

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

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

This action pertaining to Pennsylvania's 2015 Ozone NNSR Certification may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons set out in the preamble, 40 part 52 is amended as follows:

Table of Contents I. What is the background for this action? II. What comments were received in response to the EPA's proposed action? III. What action is the EPA taking? IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. What is the background for this action?

On August 11, 2022 (87 FR 49570), the EPA published a notice of proposed rulemaking that proposed to approve a State Implementation Plan (SIP) revision submitted by the State of New York on October 15, 2020, for purposes of revising title 6 of the NYCRR, part 205, “Architectural and Industrial Maintenance Coatings.” The EPA's evaluation recognizes that the SIP revision is consistent with the Ozone Transport Commission Model Rule for AIM coating categories and will help the State attain the National Ambient Air Quality Standards (NAAQS) by improving air quality through reduced VOC emissions and promoting regional AIM coating consistency. The specific details of New York's SIP revision submittal and the rationale for the EPA's approval action are explained in the EPA's proposed rulemaking and are not restated in this final action. For this detailed information, the reader is referred to the EPA's August 11, 2022, proposed rulemaking (87 FR 49570). The attendant revisions to 6 NYCRR part 200, “General Provisions,” section 200.9, Table 1, “Referenced material,” for 6 NYCRR part 205 have been addressed under a separate rulemaking at 87 FR 52337, effective September 26, 2022.

The EPA provided a 30-day review and comment period for the August 11, 2022, proposed rule. The comment period ended on September 12, 2022. We received no comments on the EPA's action.

The EPA is approving New York's revisions to the New York SIP and amendment to 6 NYCRR part 205, “Architectural and Industrial Maintenance Coatings,” with a State effective date of January 11, 2022. Specifically, this rulemaking will reduce VOC emissions for 12 coating categories, create VOC limits for 12 additional coating categories, eliminate 15 coating categories without relaxation of the regulation, and narrow the exemption previously provided to coatings sold in one-liter (or quart-size) containers, referred to the as the “quart exemption.” The revisions will help the State to comply with Federal requirements pertaining to attainment and maintenance of the ozone NAAQS.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the 6 NYCRR part 205, “Architectural and Industrial Maintenance Coatings,” regulations described in the amendments to 40 CFR part 52 as discussed in section III of this preamble. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 2 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the State Implementation Plan, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

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

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

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

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

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

Throughout this document “we,” “us,” and “our” means the EPA.

The background for this action is discussed in detail in our March 1, 2021, proposal (86 FR 11913). In that document we proposed to approve portions of two revisions to the Texas SIP submitted to the EPA on May 13, 2020, that describe how CAA requirements for enhanced vehicle inspection and maintenance (I/M) and NNSR are met in the DFW and HGB serious ozone nonattainment areas for the 2008 ozone NAAQS.

Our March 2021 proposal provided a detailed description of the revisions and the rationale for the EPA's proposed actions, together with a discussion of the opportunity to comment. The public comment period for our March 2021 proposal action closed on March 31, 2021. We received comments during the public comment period from two sources: Earthjustice, on behalf of Achieving Community Tasks Successfully, Coalition of Community Organizations, Downwinders at Risk, Sierra Club, Texas Environmental Justice Advocacy Services, and itself, together with Caring for Pasadena Communities; and Air Law for All (ALFA), on behalf of the Center for Biological Diversity and the Center for Environmental Health. 1 The comments received are available for review in the docket for this rulemaking. The EPA is not finalizing the proposed approval of revisions that address the CAA requirements for vehicle I/M at this time. Those revisions will be addressed in a separate rulemaking. Our responses to the comments addressing NNSR follow.

Comment: Commenters assert that the proposed rule relies on the provisions of the Texas Administrative Code which require new or modified major sources of ozone precursors in ozone nonattainment areas to procure emission offsets for their emission increases through the state's Emission Credit Banking and Trading program. According to the Commenters, these provisions authorize inter-precursor trading (IPT) of NOx and VOC emissions which was vacated by the United States Court of Appeals for the District of Columbia Circuit on January 29, 2021. The commenters also argued that EPA's approval of an inter-precursor trade is presumed unless the EPA disapproves the trade during its comment period, according to TCEQ guidance memorandum.

Response: The commenter correctly points out that the D.C. Circuit (the court) vacated the portion of the EPA's NNSR regulation at 40 CFR 51.165 that allows IPT to meet the offset requirements for ozone. Following the court's decision, the EPA notified the TCEQ in a letter dated June 17, 2021, that the EPA would no longer approve any IPT trades under the previously approved Texas SIP rules based on the court decision. In a response to the EPA dated June 25, 2021, the TCEQ confirmed that its NNSR IPT provisions cannot function without the EPA's prior approval of each trade, and that the TCEQ has not approved any IPT request in the past without prior approval from the EPA. 2

The TCEQ also confirmed that without the IPT provisions, its regulations continue to meet the NNSR program requirements at 40 CFR 51.165. EPA agrees that, without the IPT provisions, the Texas SIP regulations meet the CAA's NNSR requirements. The EPA-approved Texas SIP already includes 30 TAC Section 116.12 (Nonattainment and Prevention of Significant Deterioration Review Definitions) and 30 TAC Section 116.150 (New Major Source or Major Modification in Ozone Nonattainment Area). Based on EPA's review of Texas SIP regulations for the NNSR program requirements for serious ozone nonattainment areas, we are approving this portion of the SIP revision.

The EPA does not agree with the commenters that the EPA's approval of an IPT can be presumed under the Texas SIP unless the EPA disapproved the trade during the comment period. Texas has not submitted, and the EPA has not approved the State's guidance document, described by the commenters, as part of the Texas SIP. Nothing in the previously approved Texas regulations establishes a presumption of the EPA's approval of an IPT if the EPA does not communicate its disapproval during a relevant public notice and comment period.

In addition, the EPA's commitment that it will not approve IPT for ozone because of the court's decision is sufficient to render the Texas IPT provisions inoperative for ozone. Texas has confirmed that IPT is not permitted under its regulation without prior EPA approval of a trade. Finally, we would work with Texas to get the inoperative IPT provisions removed in future SIP revisions.

As stated in our proposal, NNSR permitting program requirements specific to serious ozone nonattainment areas are reflected in CAA section 182 and further defined in 40 CFR part 51, subpart I (Review of New Sources and Modifications). The EPA and states may rely on previously approved SIP provisions to meet these NNSR requirements. One way that a state may do so is by providing a SIP revision certifying that the existing SIP requirements are sufficient to meet the requirements of the new classification, as Texas has done here. EPA has reviewed this submission and agrees that the existing provisions referenced in the Texas certification are sufficient to meet the NNSR requirements in 40 CFR 51.165.

These comments did not result in changes to the EPA's proposed approval.

We are approving portions of the State Implementation Plan (SIP) revisions submitted to the EPA by the State of Texas for the 2008 8-hour ozone NAAQS. Specifically, we are approving the portion of the SIP revision that describes how CAA requirements for NNSR are met in the DFW and HGB serious ozone nonattainment areas.

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”  3 For this final action, the EPA conducted screening analyses using the EJScreen (Version 2.0) tool. We conducted the analyses for the purpose of providing information to the public, not as a basis of our final action. The EJScreen analysis reports are available in the public docket for this action. The EPA found, based on the EJScreen analyses, that this final action will not have disproportionately high or adverse human health or environmental effects on communities with EJ concerns, as the changes to NNSR will result in an assurance that the applicable Texas NNSR requirements for the various ozone nonattainment classifications meet the CAA requirements.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

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

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

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

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

For the reasons stated in the preamble, the Environmental Protection Agency amends 40 CFR part 52 as follows:

States that have received final authorization from the EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, states must change their programs and ask the EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to the EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279.

New Federal requirements and prohibitions imposed by Federal regulations that the EPA promulgates pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) take effect in authorized states at the same time that they take effect in unauthorized states. Thus, the EPA will implement those requirements and prohibitions in Maine, including the issuance of new permits implementing those requirements, until Maine is granted authorization to do so.

On June 8, 2022, Maine submitted a complete program revision application seeking authorization of revisions to its hazardous waste program. The EPA concludes that Maine's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA, as set forth in RCRA Section 3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. Therefore, the EPA grants final authorization to Maine to operate its hazardous waste program with the revisions described in its authorization application, and as listed below in Section G of this document.

The Maine Department of Environmental Protection (MDEP) has responsibility for permitting treatment, storage, and disposal facilities within its borders and for carrying out the aspects of the RCRA program described in its application, subject to the limitations of HSWA, as discussed above.

This decision serves to authorize Maine for the revisions to its authorized hazardous waste program described in its authorization application. These changes will become part of the authorized State hazardous waste program and will therefore be federally enforceable. Maine will continue to have primary enforcement authority and responsibility for its State hazardous waste program. The EPA would maintain its authorities under RCRA sections 3007, 3008, 3013, and 7003, including its authority to:

• Conduct inspections, and require monitoring, tests, analyses and reports;

• Enforce RCRA requirements, including authorized State program requirements, and suspend or revoke permits; and

• Take enforcement actions regardless of whether the State has taken its own actions.

This action will not impose additional requirements on the regulated community because the regulations for which the EPA is authorizing Maine are already effective under State law and are not changed by today's action.

Along with this direct final rule, the EPA is publishing a separate document in the “Proposed Rules” section of this issue of the Federal Register that serves as the proposal to authorize Maine's program revisions. The EPA did not publish a proposal before today's rule because the EPA views this as a routine program change and does not expect comments that oppose this approval. The EPA is providing an opportunity for public comment now, as described in Section E of this document.

If the EPA receives comments that oppose this authorization, the EPA will withdraw today's direct final rule by publishing a document in the Federal Register before the rule becomes effective. The EPA will base any further decision on the authorization of Maine's program revisions on the proposal mentioned in the previous section, after considering all comments received during the comment period. The EPA will then address all such comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

If the EPA receives comments that oppose only the authorization of a particular revision to Maine's hazardous waste program, the EPA will withdraw that part of this rule, but the authorization of the program revisions that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn.

Maine initially received final authorization effective May 20, 1988 (53 FR 16264) to implement the RCRA hazardous waste management program. The EPA granted authorization for revisions to Maine's regulatory program on the following dates: June 24, 1997, effective August 25, 1997 (62 FR 34007); and November 9, 2004, effective January 10, 2005 (69 FR 64861); and June 26, 2020, effective immediately (85 FR 38330).

On June 8, 2022, Maine submitted a final complete program revision application, seeking authorization of additional revisions to its program in accordance with 40 CFR 271.21. Maine seeks authority to administer the Federal requirements that are listed in Table 1 below. This table lists Maine's analogous requirements that are being recognized as no less stringent than the analogous Federal requirements.

Maine's regulatory references are to the Hazardous Waste Management Rules, 06-096 of the Code of Maine Rules (CMR), Chapters 850-858, as amended effective October 6, 2021, and to the Rules Concerning the Processing of Applications and Other Administrative Matters, 06-096 CMR, Chapter 2, as amended effective June 9, 2018. Maine's statutory authority to operate its hazardous waste program is found in the Hazardous Waste, Septage, and Solid Waste Management Act, 38 M.R.S. sections 1301 through 1319-Y.

The EPA proposes to determine, subject to public review and comment, that Maine's hazardous waste program revisions are equivalent to, consistent with, and no less stringent than the Federal program, and therefore satisfy all of the requirements necessary to qualify for final authorization. Therefore, the EPA is proposing to authorize Maine for the following program revisions:

EPA is also authorizing Maine for the land disposal restrictions (LDR) in 40 CFR 268.30. In addition, EPA is authorizing Maine for revisions to previously authorized rules, they include: 850.3(A)(4)(a)(xxiv)—clarifying the applicability of the tolling agreement or the need to overcome the rebuttable presumption if there is no tolling agreement in the used cutting oil exclusion; 858.4(N)—clarifying the definition of “recycling facility” to mean a destination facility as defined in 40 CFR 273.9 or a facility authorized to perform the universal waste recycling activity; 858.5(A)—clarifying that the intentional breakage of universal waste is considered treatment; and 854.8(A)(3)(a), 854.9(A)(2), 854.10(A)(1)(b), 854.11(A)(2) and 854.16(A)(1)(a)—these revisions, which incorporate drinking water guidelines, support the implementation of other provisions of the Maine hazardous waste program, as they are utilized for the limited purpose of determining whether waste has migrated to surface or groundwaters.

EPA cannot delegate certain federal requirements associated with the federal manifest registry system, the electronic manifest system, and international shipments ( i.e., import and export provisions). Maine has adopted these requirements and appropriately preserved the EPA's authority to implement them (see 06-096 C.M.R. Ch. 857, sections 3(D), 3(E), 3(L), 3(O), 5(F)(2), 5(G), 7(D), 8(A)(1)(b), 8(C), 9(A)(6) and 9(D); and Ch. 858 sections 7(O) and 13).

There are several Federal rules that have been vacated, withdrawn, or superseded. As a result, authorization of these rules may be moot. However, for purposes of completeness, these rule checklists are included here with an explanation as to the rule's status in Maine. These checklists include: CL 216: Exclusion of Oil-Bearing Secondary Materials Processed in a Gasification System to Produce Synthetic Gas (73 FR 57, January 2, 2008); CL 221: Expansion of RCRA Comparable Fuel Exclusion (73 FR 77954, December 19, 2008); CL 224: Withdrawal of the Emission Comparable Fuel Exclusion (75 FR 33712, June 15, 2010); and CL 234: Vacatur of the Comparable Fuels Rule and the Gasification Rule (80 FR 18777, April 8, 2015)—CLs 216, 221, and 224 have been vacated. CL 234 implements the vacatur of these provisions. Maine did not adopt the exclusions contained in CLs 216, 221, or 224; therefore, the adoption of CL 234 in Maine would be inconsequential. Maine's authorized program continues to be equivalent to and no less stringent than the Federal program without having to make any conforming changes pursuant to these rule checklists.

When revised State rules differ from the Federal rules in the RCRA State authorization process, EPA determines whether the State rules are equivalent to, more stringent than, or broader in scope than the Federal program. Pursuant to RCRA section 3009, 42 U.S.C. 6929, State programs may contain requirements that are more stringent than the Federal regulations. Such more stringent requirements can be federally authorized and, once authorized, become federally enforceable. Although the statute does not prevent states from adopting regulations that are broader in scope than the Federal program, states cannot receive federal authorization for such regulations, and they are not federally enforceable.

Maine's hazardous waste program contains certain provisions that are broader than the scope of the Federal program. These broader in scope provisions are not part of the program the EPA is proposing to authorize. The EPA cannot enforce requirements that are broader in scope, although compliance with such provisions is required by State law. In 2002, in response to vacaturs ordered by the court, the EPA codified the decision that the Toxicity Characteristic Leaching Procedure (TCLP) may not be used for determining whether manufactured gas plant (MGP) waste is hazardous under RCRA. Maine has not adopted this change; therefore it regulates MGP waste that is determined to be hazardous using the TCLP. State-only wastes make Maine's universe of regulated hazardous waste larger than the EPA's and is therefore broader in scope.

Maine's hazardous waste program contains several provisions that are more stringent than the Federal RCRA program. More stringent provisions are part of a federally-authorized program and are, therefore, federally enforceable. Under this action, the EPA would authorize every provision in Maine's program that is more stringent. The provisions of the proposed program revision that are more stringent are noted in Table 1. They include, but are not limited to, the following:

(a) There are several conditional exclusions from the definition of solid waste that Maine has not adopted. They include the exclusions at: 40 CFR 261.4(a)(9), (12), (18), (19) and (20). In addition, there are also exclusions from the definition of hazardous waste that Maine has not adopted. They include the exclusions at 40 CFR 261.4(b)(4) for the co-disposed wastes associated with coal combustion residuals and 40 CFR 261.4(b)(7) for mining wastes. Maine regulates mining waste in Chapter 200. Therefore, Maine's regulations are more stringent with respect to the exclusions listed here.

(b) Maine regulates Conditionally Exempt Small Quantity Generators (CESQGs) more stringently by not allowing CESQG waste disposal in Subtitle D landfills and requiring the waste to be shipped on a hazardous waste manifest.

(c) There are various permitting provisions that Maine has adopted that include more stringent requirements. They include the following: all hazardous waste landfills, surface impoundments and wastes piles must have double liners; a leachate detection, collection and removal system must be installed between the top synthetic liner and bottom composite liner in addition to one installed immediately above the top synthetic liner for all land disposal units; the demonstration for disposal of non-hazardous liquid waste in landfills is not allowed; all new drip pads must be constructed with a liner, and a leak detection and collection system; the use of the financial test or corporate guarantee for liability coverage is not allowed; and, Maine did not adopt the provisions in 40 CFR part 266, subpart H, boilers and industrial furnaces are regulated as incinerators in Maine.

(d) Maine's manifest recordkeeping requirements are also more stringent. Records must be kept for the life of the facility if that facility is the ultimate destination for the waste. In addition, for bulk shipments where a manifest has not been received by the designated facility (unmanifested waste), or where a paper manifest or shipping paper is used, the facility must send a copy of the manifest or shipping paper to Maine DEP within 7 days.

(e) Maine did not adopt the 40 CFR part 266, subpart M provisions for military munitions. If munitions are a waste and also a hazardous waste, then they are regulated under Maine's hazardous waste program, except under an emergency response per the provisions in Chapter 856, section 18(A)(4).

(f) The EPA excludes mixtures of non-hazardous waste with certain listed hazardous wastes from the definition of hazardous waste if certain conditions are met. The types of mixtures and associated conditions for exclusion are listed in 40 CFR 261.3(a)(2)(iv) and are generally referred to as the “headworks exemption.” Maine does not include these provisions in their regulations but regulates these mixtures as a hazardous waste, see Chapter 850, section 3(A)(3)(b)(ii) and 3(A)(3)(b)(iii).

(g) The EPA conditionally excludes certain wastes generated from the treatment, storage or disposal of listed wastes from hazardous waste regulation in 40 CFR 261.3(c)(2)(ii). In 40 CFR 261.4(b)(15), the EPA conditionally excludes leachate or gas condensate collected in landfills where certain inorganic chemical manufacturing wastes (namely, K169, K170, K171, K172, K174, K175, K176, K 177, K178, and K181) have been disposed. Maine regulates any waste generated from the handling of a hazardous waste as hazardous waste, including any sludge, spill residue, ash, emission control dust, and leachate, see Chapter 850, section 3(A)(3)(c)(ii).

Maine will continue to issue permits covering all the provisions for which it is authorized and will administer the permits it issues. EPA will implement and issue permits for any HSWA requirements for which Maine is not yet authorized in the future.

Maine is not authorized to carry out its hazardous waste program in Indian country within the State, which includes the land of the Houlton Band of Maliseet Indians; the Mi'kmaq Nation; the Passamaquoddy Tribe at Pleasant Point and Indian Township; and the Penobscot Nation. In its Attorney General's statement, as amended on July 25, 2022, the State asserted it has jurisdiction in Indian country pursuant to the Act to Implement the Maine Indian Claims Settlement (Maine Implementing Act), 30 M.R.S. sections 6201 to 6214, and the federal Maine Indian Claims Settlement Act, 25 U.S.C. 1721 to 1735 (former codification). Because of the significant time and resources needed to address the State's assertion of authority to regulate activities on Indian country under RCRA, the EPA is not making a determination on such authority as part of the decision. This approach allows EPA to move forward with approval of the State's program elsewhere in the State while it continues to work on the State's assertion in Indian country. EPA is committed to doing so following consultation with the federally recognized Indian tribes in Maine, consistent with Executive Order 13175 (Nov. 6, 2000) and EPA's Policy on Consultation and Coordination with Indian Tribes (May 4, 2011). Therefore, this action has no effect on Indian country. EPA retains jurisdiction over Indian country and will continue to implement and administer the RCRA program on these lands.

Codification is the process of placing citations and references to the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by adding those citations and references to the authorized State rules in 40 CFR part 272. EPA is not proposing to codify the authorization of Maine's changes at this time. However, EPA reserves the ability to amend 40 CFR part 272, subpart U for the authorization of Maine's program at a later date.

The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). This action authorizes State requirements for the purpose of RCRA section 3006 and imposes no additional requirements beyond those imposed by State law. Therefore, this action is not subject to review by OMB. This action is not an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory action because actions such as today's authorization of Maine's revised hazardous waste program under RCRA are exempted under Executive Order 12866. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538). For the same reason, this action also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

Under RCRA section 3006(b), the EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in taking this action, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of this action in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). “Burden” is defined at 5 CFR 1320.3(b). Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Because this action authorizes pre-existing State rules which are at least equivalent to, and no less stringent than existing Federal requirements, and imposes no additional requirements beyond those imposed by State law, and there are no anticipated significant adverse human health or environmental effects, this rule is not subject to Executive Order 12898.

I. Background

The Pacific Coast Groundfish Fishery Management Plan (FMP) specifies management measures for over 90 different groundfish species in Federal waters off the West Coast states. Target species in the commercial fishery include Pacific whiting (hake), sablefish, dover sole, and rockfish, which are harvested by vessels primarily using midwater trawl and bottom trawl gear, and to a lesser extent “fixed gear” fish pots and longline. The trawl fishery is managed under the West Coast Groundfish Trawl Catch Share Program (Catch Share Program), which was implemented through Amendment 20 to the FMP in January 2011. The Catch Share Program consists of an individual fishing quota (IFQ) program for the shorebased trawl fishery (including whiting and non-whiting sectors), and cooperatives for the at-sea mothership (MS) and catcher/processor (C/P) trawl fisheries (whiting only). The Catch Share Program requires 100 percent monitoring of vessels at sea, and dockside when offloading, to ensure accountability for all landings and discards of allocated IFQ species. The West Coast Groundfish Observer Program (WCGOP) is responsible for the training, briefing, and in-season support of at-sea observers in the Catch Share Program. WCGOP helps to manage and review the catch data collected by observers while at sea.

Vessel owners and first receivers are responsible for obtaining and funding catch share observers and catch monitors as a condition of participating in the Catch Share Program. To provide a potential cost-saving alternative to human observers, the Pacific Fishery Management Council, NMFS, and groundfish stakeholders have been developing an electronic monitoring (EM) program as an option to meet at-sea monitoring requirements of the Catch Share Program. EM uses cameras and associated sensors to record and monitor fishing activities while a vessel is operating at sea. Video data is later reviewed by an analyst onshore to collect catch and effort information. EM can reduce monitoring costs for some vessels because it does not require deploying a human observer to the vessel, and associated, labor, travel, and logistical expenses.

NMFS published a final rule on June 28, 2019, (84 FR 31146) that established the overall EM program requirements, including an application process and responsibilities for participating vessel owners and operators and EM service providers, and requirements for first receivers receiving catch from EM trips. These rules also detailed gear-specific protocols for the use of EM on whiting and fixed gear trips. As discussed in these rules, the Council originally considered including regulations for all gear types used in the Catch Share Program (whiting, non-whiting midwater, bottom trawl, and fixed gear) in one regulatory amendment. However, at the time, additional information was needed to finalize protocols for the use of EM on trips using bottom trawl and non-whiting midwater gear. In April, September, and November 2017, the Council discussed various aspects of the EM program and took final action to recommend the use of EM with bottom trawl and non-whiting midwater trawl gear.

At the April and June 2020 meetings, the Council considered and ultimately recommended other minor regulatory changes to existing EM program regulations implemented under the June 2019 final rule (84 FR 31146; June 28, 2019). These regulatory changes were identified and developed from information collected through exempted fishing permits (EFPs) used to test EM systems and protocols, and are intended to clarify and streamline EM program requirements. These regulatory changes are included under this rule, and are described in the following sections of this preamble.

At the Council's recommendation, NMFS published an interim final rule on October 6, 2021 (86 FR 55525) to delay the start date for the EM program until at least January 1, 2024, and only after NMFS issues a public notice at least 90 calendar days before it will begin accepting applications for EM authorizations for the first year of the program. NMFS approved the recommendation, to strengthen Council and industry support for the EM program, increase participation when the program is implemented, and to provide additional time for industry and prospective service providers to prepare for implementation. The full rationale for the Council's recommendation to delay EM program implementation is detailed in the March 1, 2022 proposed rule for this action (87 FR 11382), and is not repeated here.

Consistent with the October 6, 2021 interim final rule (86 FR 55525), the EM program for the trip types included in this final rule will not be effective before January 1, 2024. A more extensive discussion of the development of these regulatory changes and the overall EM program is available in the March 1, 2022 proposed rule for this action (87 FR 11382) and is not repeated here.

The June 2019 final rule (84 FR 31146; June 28, 2019) implemented the overall framework and general requirements for the EM program, including an application process for vessel owners and EM service providers and responsibilities for all program participants. This rule will allow vessels participating in the EM program to use bottom trawl gear or midwater trawl gear targeting non-whiting species, under the same general program requirements already in place for trips targeting whiting or using fixed gear. Vessel owners will be able to apply to NMFS to use EM in place of human observers to meet the 100 percent at-sea monitoring requirements of the Catch Share Program for bottom trawl or non-whiting midwater trawl trips. Vessel owners intending to use EM for bottom trawl or non-whiting midwater trawl trips are required to develop a vessel monitoring plan (VMP) which documents installation of EM systems, including specific plans and procedures for system operation, maintenance, and catch handling. This information will be submitted to NMFS for review as part of the vessel's application for authorization to use EM. The vessel operator is required to record discards of IFQ species on a logbook, which will initially be used to debit quota pounds from the vessel's account. The EM video data will then be reviewed by the vessel's EM provider and used to validate the discards reported in the logbook. The amount of video reviewed to audit the logbook will be as specified by NMFS in consultation with the Council and based on performance.

A detailed description of EM program requirements is contained in the September 2016 proposed rule (81 FR 61161; September 6, 2016) and June 2019 final rule (84 FR 31146; June 28, 2019) and is not repeated here. This proposed rule revises the gear-specific requirements of the EM program to add requirements for trips using bottom trawl and non-whiting midwater trawl gear, which are described in the following sections of this preamble.

Under this rule, two different discard and catch retention rules can be used with EM on bottom trawl and non-whiting midwater trawl trips: “maximized” or “optimized” retention. Vessel operators will be able choose the preferred retention rule under which they plan to operate for a fishing trip using EM. As part of the required declaration report, prior to departing on a fishing trip, vessel operators will declare whether they intend to use maximized or optimized retention rules for EM trips. Declaration reports are described in additional detail in following sections of this preamble.

Under “maximized” retention requirements, vessels on bottom trawl and non-whiting midwater trawl trips do not sort or discard catch at sea, and are required to retain all catch until landing, with exceptions for prohibited and protected species.

Under “optimized” retention, EM vessel operators are allowed to discard species that can be differentiated on camera, and must retain those species that cannot be easily distinguished in video data. Some groundfish species are difficult to distinguish from each other without close inspection of certain physical features which cannot be easily viewed using video data. Species easily differentiated that may be discarded will be listed in § 660.604(p).

Vessel operators using EM on bottom trawl and non-whiting midwater trawl trips are responsible for ensuring all discarded catch is discarded following catch handling instructions in the NMFS-accepted VMP. This rule will allow NMFS to specify alternate retention requirements in a NMFS-accepted VMP through the process described at § 660.604(f), after consultation with the Council and issuance of a public notice of the changes.

Both retention rules have trade-offs, depending on the target species and gear type used. “Maximized” retention simplifies catch handling at sea, and video review, as only prohibited and protected species discards would need to be differentiated on camera. “Optimized” retention allows vessel operators to discard catch that can be differentiated on camera, and reduces the burden of having to store and later dispose of unmarketable or otherwise undesirable fish. The Council determined that allowing vessel operators to choose the retention rules that best fit the operation of their gear and vessel, as well as the characteristics of the target species, would provide operational flexibility while ensuring the reliability of EM video data for discard accounting.

This rule also expands the definition of prohibited species for the purposes of retention requirements under EM regulations at § 660.601. California Department of Fish and Wildlife (CDFW) recommended this regulatory change to ensure state-managed species are treated in the same manner as prohibited species if the vessel operator, or first receiver, does not have the appropriate state permit to land and sell these particular species of fish. Because the retention/discard species list can change through time, CDFW recommended to the Council regulatory language that would cover any state- managed species to eliminate the need for further revisions should other state-managed species be added to or removed from the lists.

Under the regulations being finalized through this rule, vessels on bottom trawl and non-whiting midwater trawl trips are allowed to switch between using EM systems on some trips and human observers on others. West Coast fisheries regulations at § 660.13(d) require vessel operators to declare the fishery sector in which they will participate, the area to be fished, and the gear and monitoring type (EM or observers) they intend to use prior to leaving port, with limited exemptions. The gear types or sectors, and monitoring types that must be declared are listed in regulations at § 660.13(d)(4)(iv)(A). These declarations are sent through phone call to the NMFS Office of Law Enforcement (OLE), and are binding for the duration of the fishing trip for which they have been made. Though catcher vessels participating in the Pacific whiting fisheries may change their declarations between the mothership and shorebased sectors while on the same trip, monitoring type declarations cannot be changed while at sea. This rule modifies the list of declarations to include EM as a monitoring type that may be selected and declared on trips with bottom trawl and non-whiting midwater trawl gear.

Under existing regulations at § 660.604(e)(3)(ii), EM vessel operators are required to submit annual tentative fishing plans to NMFS. Tentative fishing plans are used by WCGOP and observer providers to plan training and deployment of observers. Tentative fishing plans are a description of the vessel owner's fishing plans for the year, including which fishery the vessel owner plans to participate in, from what ports, and when the vessel owner intends to use EM and observers. The information provided in tentative fishing plans is for purposes of planning observer training and deployments, and is not binding.

Under the regulations finalized through this rule, vessel owners and operators taking bottom trawl and non-whiting midwater trawl trips would not be restricted on the number of times they could switch between EM and observers during the year. Vessel operators are required to communicate their intended monitoring type before fishing through declarations to NMFS OLE. The Council determined that by using tentative fishing plans, disruption to observer training and deployment would be mitigated should vessel operators choose to switch monitoring types, therefore eliminating the need to require limits on switching monitoring types. The option to switch between EM and observers provides vessel operators flexibility to use the best monitoring strategy when considering efficiency, cost, or other operational factors of their individual fishing and business plans at a given time. Under the regulations finalized in this rule, there is no limit on switching between observers and EM for non-whiting midwater trawl and groundfish bottom trawl vessels.

Under existing regulations at § 660.604(n), as described above, a vessel operator must declare their intent to use either EM or observers 48 hours prior to leaving port. Under regulations for “maximized” and “optimized” retention, the operator is also required to include the retention rules they intend to use in their declaration to WCGOP 48 hours prior to leaving port on a trip using EM with bottom trawl or non-whiting midwater trawl gear. This timeframe and declaration allows for the planning of observer deployment. “Optimized” retention EM trips will continue to require partial observer coverage for the purpose of collecting biological samples of discarded catch. Biological samples include age, sex, and length specimen data, which cannot be obtained through EM systems. Requiring the vessel operator to notify WCGOP of their intended retention type will ensure optimized retention trips can be selected for biological sampling. WCGOP does not require partial observer coverage on maximized retention EM trips for biological sampling at this time, but could potentially in the future.

Under these final regulations, a group of eligible vessel owners participating in the shorebased IFQ sector, including those that take bottom trawl and non-whiting midwater trawl trips, may obtain a group EM authorization through a self-enforcing agreement. Through a private, contractual arrangement, a self-enforcing agreement allows a co-signed group of vessels, owners, operators, and other interested parties to cooperatively encourage, and enforce, compliance of EM program requirements by members. To be considered for a group EM authorization, a group of vessel owners must submit a complete initial EM authorization application package to NMFS for review and approval. The package must include a copy of the self-enforcing agreement to be eligible to receive a group EM authorization. Participating vessel owners are required to agree to conduct fishing operations according to the terms of the self-enforcing agreement. NMFS will still bear the ultimate responsibility for enforcing the EM regulations.

The self-enforcing agreement must include a description of participating members, responsibilities, procedures for communication with members and NMFS, equipment performance standards, provisions for the use and protection of confidential data, measures to enforce compliance, procedures for addressing non-compliance of members, and annual reports to the Council.

Under final regulations, NMFS has the authority to invalidate a group EM authorization if determined that any of the vessels, owners, and/or operators no longer meet the eligibility criteria for the self-enforcing agreement. NMFS would first notify the members of the group EM authorization of the deficiencies in writing, providing instructions for members to correct the deficiencies. If the deficiencies are not resolved upon review of the first trip following the notification, NMFS will notify the members in writing that the group EM authorization is invalid and that the members are no longer exempt from observer coverage at §§ 660.140(h)(1)(i) and 660.150(j)(1)(i)(B) for that authorization period. After the invalidation of a group EM authorization, individual vessels would be able to apply for individual authorizations.

The Council recommended the allowance of self-enforcing cooperative agreements for shorebased IFQ vessels in the EM program based on prior participation in EM EFPs by fishing cooperatives. Under these final regulations, a fishing collective that has operated under a cooperative self-enforcing agreement to test EM under EFPs will be able to apply for authorization to continue self-enforced compliance with the EM program. This rule allows additional groups of shorebased IFQ vessels applying for EM authorization to enter in the self-enforcing cooperative agreements. These agreements are intended to help encourage compliance with the many day-to-day responsibilities for EM system maintenance and catch handling requirements of the EM program.

In June 2019, NMFS published the final rule (84 FR 31146; June 28, 2019) establishing responsibility requirements for vessel operators using EM systems, and for EM service providers. These responsibilities are detailed in the 2019 final rule, and include declaration of EM systems use by vessel operators, protocols for transferring and handling EM data, logbook processing requirements, and technical reports by EM service providers. Minor changes necessary to clarify these regulations were identified after the publication of the 2019 final rule. The regulatory changes described below were developed through Council discussion with NMFS and members of industry at the Council's April and June 2020 meetings. The Council's intent in developing these regulatory changes is to refine and clarify certain EM program requirements and improve the effectiveness of the EM program overall in meeting its intended monitoring goals for the Trawl Catch Share Program.

This regulatory change increases the hard drive submission deadline to 72 hours from the beginning of the offload following a fishing trip in which EM was used. Under EM program regulations at § 660.604(s)(3), vessels using EM systems are required to submit hard drives storing EM video data within 24 hours of beginning an offload after a fishing trip. Increasing this deadline to 72 hours aligns it with the hard drive submission requirements used under EM EFPs. This change provides additional time for vessel operators to comply with hard drive submission requirements with minimal impact to the timeliness of data. This change would also ensure a smooth transition for vessels operating under EFPs to the full EM program regulations when they become effective.

This regulatory change requires the scrubbing of EM hard drives only if end-to-end encryption is not used. EM regulations at § 660.603(m)(3) require service providers to remove all EM data before hard drives can be reused in the field. This requirement was intended to ensure protection of confidential information for vessel owners and operators. However, regular scrubbing of hard drives can shorten their functional life, and requires their replacement more frequently, increasing operational costs for EM users. NMFS and the Council determined that the use of end-to-end encryption will sufficiently protect sensitive information and extend the life of EM hard drives. End-to-end encryption protects information encrypted by the sender, allowing only recipients with the encryption key to decrypt and access the information. Third parties without the encryption key would not have the means to read the files. Starting in 2017, NMFS stopped requiring scrubbing of hard drives that use end-to-end encryption in the EM EFP, which is consistent with practices in other regions. This regulatory change will reduce program costs, and still allow vessel owners to work with service providers to develop more strict requirements for the treatment of hard drives.

This regulatory change removes the limit on switching between observers and EM for whiting trips. Regulations at § 660.604(m) previously restricted vessel operators on whiting trips from revising a monitoring declaration more than twice per calendar year, except in the case of an EM system malfunction. The limit was intended to prevent frequent switching that could disrupt deployment planning and affect the availability of observers. As NMFS described, and finalized in the June 2019 final rule (84 FR 31146; June 28, 2019), NMFS may waive the limit on switching between monitoring types if it is not necessary for planning observer deployment. After the 2019 final rule published, NMFS and the Council determined that a regulatory restriction on how many times a vessel taking whiting trips can switch between observers and EM was unnecessary. Under current regulations, vessel owners are required to provide a tentative fishing plan when they apply for their annual EM Authorization, in which the vessel owner gives NMFS advance notice of their plans to use EM and observers for the upcoming fishing year. WCGOP and observer providers then can use this information for planning purposes. This information negates the need for restrictions on switching between observers and EM. Therefore NMFS is implementing the Council's recommendation to eliminate the limit on switching between EM and observers for whiting trips under this final rule. This change will align the flexibility in moving between EM and observer coverage across all trip types (bottom trawl, whiting midwater, non-whiting midwater, and fixed gear).

EM regulations at § 660.604(e)(1)(iii) previously required a vessel applying to use EM in the mothership sector to have a valid mothership/catcher vessel (MS/CV) endorsement to qualify for authorization. This requirement was initially included for vessels testing EM under EFPs, as having valid permits for all intended fishing activities is a standard requirement for EFP eligibility. However, the regulations governing mothership cooperatives at § 660.150(g)(1) allow for a vessel without an MS/CV endorsement, but that is enrolled in the mothership cooperative, to deliver to a mothership. It was not the Council's and NMFS's intent to restrict participation with EM to only those vessels with an MS/CV endorsement. Including this eligibility criterion was a holdover from the EFP terms and conditions and is not consistent with Council intent. Therefore, this rule removes the requirement at § 660.604(e)(1)(iii) for an MS/CV endorsement to be eligible to use EM on MS/CV trips.

This regulatory change requires all vessel owners to submit discard logbooks directly to their EM service providers following a fishing trip in which EM was used. EM service providers will receive and process discard logbooks by entering data, performing quality assurance and control, and subsequently submit logbook data to NMFS for review. Service providers are required to submit initial logbook data to NMFS within two business days of receipt from vessel operators.

EM regulations at § 660.604(s) previously required vessel operators to submit discard logbooks directly to NMFS or its agent for processing. Under this model, NMFS would check logbooks for accuracy and issues and enter data, which would then be used to initially debit discarded catch from vessel IFQ accounts. EM service providers review video data separately, with WCGOP providing some logbook data to EM service providers that is necessary for completing the video review, such as trawl gear codend capacity, but with most identifying logbook data withheld to ensure video review is done blind.

Under previous regulations, having NMFS process logbooks directly would require back-and-forth with EM service providers to accurately match logbooks with EM trips, select trips or hauls for review, compare logbook and EM discard estimates, and investigate any discrepancies. Vessel owners were required to submit logbooks directly to NMFS via a secure transmission method to comply with confidentiality and data security requirements, limiting the methods by which NMFS can receive logbooks.

NMFS and the Council determined it is more efficient and cost effective to have EM service providers receive both logbooks and EM data directly from vessel owners for initial processing, entry, and quality control, and simply report final data to NMFS. NMFS will also receive logbooks, and use its debriefing procedures to carry out quality control on the logbook data and to check for potential bias in the video review. Having EM service providers process logbooks also allows individual vessel operators to develop optimal submission methods for discard logbooks with their respective EM service providers. NMFS supports the Council's recommendation and is therefore implementing the change through this final rule.

Under regulations at § 660.603, EM service providers are responsible for providing various feedback reports to vessel operators, and summaries to NMFS. These reports include logbook data, technical assistance, vessel operator feedback, EM summary data, and compliance reports. Submission of this information by service providers has been required in regulations as of June 2019; however, deadlines for the submission of these reports were not originally specified in regulation. Under this final rule, NMFS would establish submission deadlines for these required EM service providers' reports. This change will allow NMFS to enforce timely submission of EM data. The submission deadlines for each report are specified below.

As described previously in this preamble, vessel operators would submit discard logbooks directly to EM service providers for processing. Under this final rule, service providers will submit initial logbook data to NMFS within two days of receipt from vessel operators. This deadline will help to ensure timely debiting of discards from vessel IFQ accounts, and is consistent with submission timelines used for EM EFPs and WCGOP observer data. Setting the deadline based on the receipt of initial, rather than final, logbook data will ensure service providers are not held responsible for late or incomplete submissions from vessel operators. After initial logbook submission, the EM service provider will work with the vessel operator to review data and, if necessary, revise and submit updated logbook data. Under these regulatory changes, requiring concrete deadlines for these reports in the regulations will ensure the timely submission of discard estimates from logbook data, which is essential for discard accounting in the Catch Share Program, and to provide clear expectations for all participants.

Under current regulations at § 660.603(k), EM service providers are required to submit reports to NMFS when technical assistance is requested by vessels on EM trips. These reports of technical assistance allow NMFS to monitor the performance of EM systems and field services, and follow up should any potential enforcement issues arise. Under this final rule, NMFS will require technical assistance reports to be submitted within 24 hours of the EM service provider being notified by the vessel operator. This change is consistent with how these notifications have occurred in the EM EFPs.

Under current regulations at § 660.603(m)(4), EM service providers are required to provide feedback reports to vessel operators and field services staff. Feedback is required on EM systems, crew responsibilities, and any other information that would improve the quality and effectiveness of data collection on the vessel. Through this final rule, NMFS is requiring feedback to be submitted to vessels within three weeks of the date EM data is received from the vessel operator for processing by the service provider. Prospective service providers, EFP vessel operators, and industry members have provided feedback through the Council process that three weeks is a reasonable timeline for the submission vessel feedback reports. Specifically, a submission deadline of three weeks after the service provider receives the hard drive from a vessel will ensure that EM service providers are not held responsible for late submissions by vessel operators. Concrete and enforceable deadlines are necessary to ensure service providers submit feedback reports in a timely manner, and establish the data processing procedures to meet these deadlines. It is critically important to provide timely feedback to vessel captains and crew on catch handling, EM system care, and other aspects of operations that affect data quality. Timely feedback to vessels will help to ensure the quality of EM data, and reliability of the EM program in meeting monitoring goals of the Catch Share Program.

Current regulations at § 660.603(m)(5) require service providers to submit EM summary data and compliance reports to NMFS following completion of video review. EM summary data includes discard estimates, fishing activity information, and trip metadata. This final rule requires EM summary data and compliance reports to be submitted to NMFS three weeks from the date the vessel operator submits EM data for processing. EM summary data and compliance reports are used by NMFS to debit vessel accounts, monitor program and vessel performance, and enforce requirements of the EM program. Trip metadata is an essential record of when and where EM data were created by the vessel, submission time, date and location of review, and point of contacts for reviewers. Trip metadata ensures fishing data can be accurately corroborated with logbook data and is necessary for a complete chain of custody and accountability between the vessel, service provider, and NMFS. Catch discards will initially be debited from vessel accounts in the IFQ database using logbook data, as described previously; discards would largely be accounted for following logbook processing, and audited using EM data. If there are large discrepancies between the logbook and EM summary data, then a longer reporting timeline may result in vessel account owners experiencing unexpected debits, or being unable to “close-out” an account for a fishing trip until the EM data are received. The Council recommended three weeks, with support from NMFS, as being a reasonable amount of time for service providers to complete review and subsequently prepare summary data and compliance reports.

This rule will change the minimum length of time service providers are required to retain EM data records. Under previous regulations, service providers were required to maintain all of a vessel's EM data, reports, and other records specified in regulations at § 660.603(m) Data services for a period of not less than three years after the date of landing for that trip. The rationale for a three-year minimum retention period for EM data is detailed in the June 2019 final rule (84 FR 31146; June 28, 2019). Since that final rule, the Council recommended NMFS explore a shorter data retention period, to reduce the burden on industry to pay for data storage by third party service providers, while also meeting minimum federal record retention requirements. NMFS evaluated the feasibility and cost effectiveness of a shorter retention period, and developed a national policy on the minimum time that EM data must be retained. The Council supported NMFS evaluation and recommended a 12 month retention data retention period starting at the conclusion of end-of-the-year data reconciliation. This regulatory change will align with the 12-month minimum data retention period in the NMFS Procedural Directive 04-115-03 (see ADDRESSES ) for third-party minimum data retention in EM programs for federally managed U.S. fisheries

Under this final rule, EM service providers will be required to maintain EM data for a period of not less than 12 months starting after NMFS has officially completed end-of-year account reconciliation and catch monitoring. Review of catch monitoring data, including EM data, usually extends beyond the close of the fishery at the end of the calendar year. Starting the clock for the minimum retention period following end-of-the-year data reconciliation will best meet the recommendations of the procedural directive.

This proposed change will revise regulations at § 660.603(h) defining limitations on conflicts of interest for EM service providers to exclude providing other types of technical and equipment services to fishing companies. The definition in regulations previously excluded “the provision of observer, catch monitor, EM or other biological sampling services, in any Federal or state-managed fisheries” from the definition of a “direct financial interest.” After the June 2019 final rule (84 FR 31146; June 28, 2019) was published, an EM service provider brought to the Council's attention that many EM vendors provide a range of other services to fishing companies, including vessel monitoring systems (VMS), automatic identification system (AIS) transponders, telemetry (such as product temperature monitoring for seafood safety), buoy and gear monitoring, sonar systems, and mandatory safety services. Under the previous regulatory definition, such EM vendors were ineligible to provide EM services. The EM service provider noted that there is no evidence to suggest that providing such technical services to fishing companies creates any greater conflict of interest than providing biological sampling services, and requested that the definition be revised. Therefore, the Council recommended, and NMFS is implementing, a revised definition of a conflict of interest at § 660.603(h) to exclude providing other types of technical and equipment services to fishing companies.

In addition to the regulatory changes already described, the Council also recommended two clarifying corrections to language in the EM program regulations. The first correction is technical and changes the reference to “a NMFS-accepted EM Service Plan” under § 660.603(a)(1) to correctly refer to paragraph § 660.603(b)(1)(vii). The second correction changes a reference to “owner or operator” to instead be “authorized representative of the vessel” in § 660.603(n)(3), which is consistent with language in other regulations in 50 CFR 660-Fisheries Off West Coast States. This correction clarifies that a representative designated by the vessel owner, rather than solely the vessel owner or operator, is allowed to transfer EM data to service providers for review. NMFS supports these changes, and is implementing them through this final rule.

NMFS issued a proposed rule on March 1, 2022 (87 FR 11382). The comment period on the proposed rule closed March 31, 2022. No comments were received during the public comment period.

Proposed regulations intended to clarify logbook submission requirements within the EM program were adjusted to more clearly distinguish between the types of logbooks required for submission following trips with EM. The proposed regulations at § 660.604(p)(3), and (p)(4) as originally written in the proposed rule, used the term “bottom trawl logbooks.” This term is not defined, and is not used elsewhere in regulations, so in this final rule, the language is adjusted to instead use the term “discard logbooks,” as defined in existing EM regulations at § 660.604(s)(1). Additionally, the proposed regulations at § 660.604(s)(2), as originally written in the proposed rule, used the terms “federal discard logbooks, and state retained logbooks”. This final rule revises those terms to only refer to “discard logbooks” and “trawl logbooks” as defined at § 660.13(a)(1), to maintain clarity and avoid confusion. For these reasons this regulatory language is adjusted in this final rule.

Finally, this final rule includes a correction to an error in proposed regulations at § 660.13(d)(4)(iv)(A), which lists required vessel declarations for gear type, fishery, and intended monitoring type. Vessels in the Pacific Coast Groundfish Fishery are required to declare the gear type and monitoring they will use on a given trip. As described below under Reporting Requirements in this preamble, vessels will be able to declare “electronic monitoring” or “observer” as possible monitoring types on trips with bottom trawl and non-whiting midwater trawl gear. For the declaration type described at § 660.13(d)(4)(iv)(A)(11) text should read “Limited entry bottom trawl, shorebased IFQ, not including demersal trawl or selective flatfish trawl, observer”. In the proposed rule the word “observer” was unintentionally omitted. This final rule makes this correction to ensure the declaration type was consistent with the following declaration option which reads “(12) Limited entry bottom trawl, shorebased IFQ, not including demersal trawl or selective flatfish trawl, electronic monitoring”.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the Pacific Coast Groundfish FMP, Magnuson-Stevens Act, and other applicable laws.

Pursuant to Executive Order 13175, this final rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the Pacific Coast Groundfish FMP. Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council must be a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction.

This final rule has been determined to be not significant for the purposes of Executive Order 12866. This final rule does not contain policies with Federalism or “takings” implications as those terms are defined in Executive Orders 13132 and 12630, respectively.

NMFS issued a proposed rule on March 1, 2022 (87 FR 11382), for the use of EM on bottom trawl and non-whiting midwater trawl vessels.

An initial regulatory flexibility analysis (IRFA) was prepared and summarized in the Classification section of the preamble to the proposed rule. The comment period on the proposed rule ended on March 31, 2022. NMFS did not receive any public comments on the proposed rule. The Chief Counsel for Advocacy of the Small Business Administration (SBA) did not file any comments on the IRFA or the proposed rule. The description of this action, its purpose, and its legal basis are described in the preamble to the proposed rule and are not repeated here. A Final Regulatory Flexibility Analysis (FRFA) was prepared and incorporates the IRFA. There were no public comments received on the IRFA. NMFS also prepared a RIR for this action. A copy of the RIR/FRFA is available from NMFS (see ADDRESSES ). A summary of the FRFA, per the requirements of 5 U.S.C. 604 follows.

When an agency proposes regulations, the RFA requires the agency to prepare and make available for public comment an IRFA that describes the impact on small businesses, non-profit enterprises, local governments, and other small entities. The IRFA is to aid the agency in considering all reasonable regulatory alternatives that would minimize the economic impact on affected small entities. The RFA (5 U.S.C. 601 et seq. ) requires government agencies to assess the effects that regulatory alternatives would have on small entities, defined as any business/organization independently owned and operated and not dominant in its field of operation (including its affiliates). A small harvesting business has combined annual receipts of $11 million or less for all affiliated operations worldwide. A small fish-processing business is one that employs 750 or fewer persons for all affiliated operations worldwide.

For marinas and charter/party boats, a small business is one that has annual receipts not in excess of $7.5 million. A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide. A nonprofit organization is determined to be “not dominant in its field of operation” if it is considered small under one of the following Small Business Administration (SBA) size standards: environmental, conservation, or professional organizations are considered small if they have combined annual receipts of $15 million or less, and other organizations are considered small if they have combined annual receipts of $7.5 million or less.

The RFA defines small governmental jurisdictions as governments of cities, counties, towns, townships, villages, school districts, or special districts with populations of less than 50,000.

No public comments were received on the proposed rule.

This final rule mainly affects commercial harvesting entities engaged in the groundfish limited entry trawl fishery. Although this action proposes EM program regulations for only two trip types in the limited entry trawl fishery—non-whiting midwater trawl, and bottom trawl—any limited entry trawl vessel may participate in these components, provided they comply with its requirements, and therefore may be eligible to use EM as applied to these two trawl gear sectors. In addition, vessels deploying EM are likely to be a subset of the overall trawl fleet, as some vessels would likely choose to continue to use observers. However, as all trawl vessels could potentially use EM in the future under this action, this FRFA analyzes impacts to the entire trawl fleet. The total number of vessels that may be eligible to use EM is 175, the total number of limited entry trawl permits in 2021, and includes those vessels that do use bottom trawl and non-whiting midwater trawl gear, and those that do not. Given these entities participate in the program, they are most likely to be impacted by this rule in the short term. This number may be an underestimate if additional vessels elect to participate in the EM program in the future.

The RFA requires Federal agencies to conduct a full RFA analysis unless the agency can certify that the proposed and/or final rule would not have a significant economic impact on a substantial number of small entities. This determination can be made at either the proposed or final rule stage. If the agency can certify, it need not prepare an IRFA, a final regulatory flexibility analysis (FRFA), or a Small Entity Compliance Guide or undertake a subsequent periodic review of such rules. The NMFS Guidelines for Economic Analysis of Fishery Management Actions suggest two criteria to consider in determining the significance of regulatory impacts, namely, disproportionality and profitability. These criteria relate to the basic purpose of the RFA, i.e., to consider the effect of regulations on small businesses and other small entities, recognizing that regulations are frequently unable to provide short-term cash reserves to finance operations through several months or years until their positive effects start paying off. If either criterion is met for a substantial number of small entities, then the rule should not be certified for not having an effect on small entities. These criterion raise two questions: Do the regulations place a substantial number of small entities at a significant competitive disadvantage to large entities? Do the regulations significantly reduce profit for a substantial number of small entities?

The preferred alternative for this rule will not have a significant impact when comparing small versus large businesses in terms of disproportionality and profitability given available information. These regulations are likely to reduce fishing costs for both small and large businesses. EM is an optional monitoring alternative to observers, and may provide cost savings for some vessels. Economic effects of this action are expected to range from neutral to positive when compared to the status quo. Nonetheless, NMFS has prepared this FRFA. There were no public comments received on this conclusion presented in the IRFA.

The economic impacts on small entities resulting from the final action range from neutral to positive; these entities will have a choice between hiring an observer, as is status quo, or using EM. The choice is expected to be based on relative costs and operational flexibility. Observer costs are currently $499 to $537 per seaday. Under EM, NMFS estimates vessels in the bottom trawl fishery will spend between $342/seaday (which include the cost of new equipment and installation) or $285/seaday (without equipment costs). These estimates are based on 412 seadays for 10 bottom trawl vessels participating in EFPs from 2019-2020. Under EM, NMFS estimates per seaday costs for non-whiting midwater trawl trips to range from $142/seaday (with equipment costs), and $120/seaday (without equipment costs). These estimates are based on 3,215 seadays for 30 midwater trawl vessels participating in EFPs from 2019-2020, and averaged cost estimates from four prospective EM service providers. These cost estimates are detailed in the section “Industry Costs” of the FRFA included in the supporting documents for this final rule. These costs are likely an overestimate and not an accurate estimate of seaday costs for this gear type because it does not incorporate revenue from seadays pursuing bottom trawl and whiting activities that are also part of these vessels' portfolios. Cost of EM service, including equipment installation and maintenance, along with video review and data service is expected to vary by service provider. Entities participating in this fishery are not required to use EM, and have the choice to use a human observer instead of EM. Furthermore, the cost of EM is likely to decrease as technology used in EM systems (cameras, sensors, and electronic storage devices) that meets current specification necessary to meet monitoring requirements becomes cheaper over time. Therefore, this final action would not impose new costs on these small entities, and will likely provide measurable cost savings over time as individual vessels choose the most affordable at-sea monitoring systems relative to their fishing operations.

The components of this rule have the potential to positively impact all entities in the catch share sector of the fishery, regardless of size. Therefore, the rule would impose effects on “a substantial number” of small entities, however, these effects are expected to range from neutral (if entities choose not to use the added flexibility of the provisions in this rule) to positive. Data used to inform this analysis was collected through EFPs and collaboration with industry and non-government organizations from 2012 to present.

There are no relevant Federal rules that may duplicate, overlap, or conflict with this action nor were there any significant alternatives to the proposed rule considered that will accomplish the stated objectives and that minimize any significant economic impact of the final rule on small entities. As fishing operations are given a choice between two alternative monitoring systems (observers vs EM), this rule is likely to have neutral to positive effects on small entities. These regulations are likely to reduce fishing costs for both small and large businesses.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. A small entity compliance guide will be sent to stakeholders, and copies of the final rule and guides ( i.e., information bulletins) are available from NMFS at the following website: https://www.fisheries.noaa.gov/west-coast/sustainable-fisheries/compliance-guides-west-coast-groundfish.

The action contains collection-of-information requirements that have been previously approved under OMB control number 0648-0785, West Coast Region Groundfish Trawl Fishery Electronic Monitoring Program, as per the PRA requirements. The requirements include vessel owner EM applications, renewals, and reports, EM service providers applications, renewals and reports, as well as vessel operator logbook, and hard drive submission. This rule would revise collection-of-information requirements to include submission of information for the formation of self-enforcing cooperative agreements. The action contains changes to collection-of-information requirements that are subject to review and approval by the Office of Management and Budget (OMB) as per the PRA requirements. NMFS has submitted these requirements to OMB for approval under OMB control number 0648-0785 West Coast Region Groundfish Trawl Fishery Electronic Monitoring Program.

This rule will revise collection-of-information requirements to include submission of information for the formation of self-enforcing cooperative agreements. Collection of information for self-enforcing agreements is not mandatory, as self-enforcing agreements are an optional provision of the EM program under collection 0648-0785. Some vessel owners may choose to apply for a group EM authorization under a self-enforcing agreement in lieu of individual vessel authorizations. The self-enforcing agreement would be submitted with the initial applications for vessels in the group, and requires approval prior to accepting final applications from the group. One self-enforcing agreement would be completed and submitted by a designated representative for each group of vessel owners applying under a group authorization. NMFS expects no more than three such self-enforcing group agreements for the first three years of this collection. Each self-enforcing agreement is expected to take approximately 3 hours to complete. The total annualized time burden to prepare self-enforcing agreements would be 3 hours (3 hours × 3 agreements/3 years). The burden cost of one copy of the self-enforcing agreement is estimated at $3.00 ($0.10/page × 30 pages). A designated representative, or manager of the self-enforcing cooperative would hold at least one copy. To be deemed eligible to operate under the agreement, vessel owners and operators would be required to have executed a copy of the agreement for an adherence agreement under which they agree to be bound. At most, 10 vessel owners are expected to participate in any one self-enforcing agreement, each would be required to have a copy of the agreement, plus one original copy held by the cooperative manager, is expected to result in a total annualized burden of $33.00 ($3.00 × 11).

This rule includes a minor revision to declaration requirements for groundfish vessels using EM under West Coast Region Vessel Monitoring Requirement in the Pacific Coast Groundfish Fishery (OMB Control Number 0648-0573). Vessels in the Pacific Coast Groundfish Fishery are required to declare the gear type and monitoring they will use on a given trip. Under this rule, vessels will be able to declare “electronic monitoring” or “observers” as possible monitoring types on trips with bottom trawl and non-whiting midwater trawl gear. The change would add additional potential answers to an existing declaration questionnaire, which does not affect the number of entities required to comply with the declaration requirement (OMB Control Number 0648-0573). Therefore, the rule does not increase the time or cost burden associated with this requirement.

Similarly, this rule would adjust the requirement for EM vessels to notify the West Coast Groundfish Observer Program before each trip in place of the existing notification to an individual vessel's observer provider when using a catch share observer. This change would not be expected to increase the time or cost burden associated with the existing notification requirements approved under the collection Observer Programs' Information That Can be Gathered Only Through Questions (OMB Control Number 0648-0593).

The requirement for first receivers to report protected and prohibited species landings was previously approved under the collection Northwest Region Groundfish Trawl Fishery Monitoring and Catch Accounting Program (OMB Control Number 0648-0619). Under the rule, first receivers would continue to report protected and prohibited species landings, but would also report landings of catch from trips monitored using EM under “maximized” and “optimized” retention rules with bottom trawl and non-whiting midwater trawl gear. The change would add additional potential answers to an existing questionnaire, and is not be expected to change the time or cost burden or number of entities associated with this requirement.

For more information, these collections, and all currently approved NOAA collections can be viewed at https://www.reginfo.gov/public/do/PRASearch# by entering the related OMB control number.

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 660 is amended as follows:

The Pacific Coast Groundfish Fishery Management Plan (PCGFMP) and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subparts C through G, regulate fishing for over 90 species of groundfish off the coasts of Washington, Oregon, and California. The Pacific Fishery Management Council (Council) develops groundfish harvest specifications and management measures for two-year periods ( i.e., a biennium). NMFS published the final rule to implement harvest specifications and management measures for the 2021-2022 biennium for most species managed under the PCGFMP on December 11, 2020 (85 FR 79880). In general, the management measures set at the start of the biennial harvest specifications cycle help the various sectors of the fishery attain, but not exceed, the catch limits for each stock. The Council, in coordination with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, recommends adjustments to the management measures during the fishing year to achieve this goal.

At its September 2022 meeting, the Council recommended modifying trip limits for limited entry (LE) and open access (OA) sablefish north of 36° N. latitude, modifying trip limits for LE and OA canary rockfish north and south of 40°10′ N. latitude, and modifying trip limits for LE and OA lingcod north of 42° N. latitude. Pacific Coast groundfish fisheries are managed using harvest specifications or limits ( e.g., overfishing limits (OFL), acceptable biological catch (ABC), annual catch limits (ACL) and harvest guidelines (HG) recommended biennially by the Council and based on the best scientific information available at that time (50 CFR 660.60(b))). During development of the harvest specifications, the Council also recommends management measures ( e.g., trip limits, area closures, and bag limits) that are meant to manage catch so as not to exceed the harvest specifications. The harvest specifications and management measures developed for the 2021-2022 biennium used data through the 2019 fishing year. Each of the adjustments to management measures discussed below are based on updated fisheries information that was unavailable when the analysis for the current harvest specifications was completed. As new fisheries data becomes available, adjustments to management measures are projected so as to help harvesters achieve but not exceed the harvest limits.

Sablefish is an important commercial species on the west coast with vessels targeting sablefish with both trawl and fixed gear (longlines and pots/traps). Sablefish is managed with an ACL for north of 36° N. lat. and an ACL for south of 36° N. lat.. The 2022 ACLs for the north and south are 6,172 mt and 2,203 mt, respectively.

At the September 2022 Council meeting, the Council's Groundfish Management Team (GMT) received requests from industry members and members of the Council's Groundfish Advisory Subpanel to examine the potential to increase sablefish trips limits for the LE and OA fisheries north of 36° N. lat.. The intent of increasing trip limits is to increase harvest opportunities for vessels targeting sablefish. To evaluate potential increases to sablefish trip limits, the GMT made model-based landings projections under current regulations and alternative sablefish trip limits, including the limits ultimately recommended by the Council, for the LEFG and OA fisheries through the remainder of the year. Table 1 shows the projected sablefish landings, the sablefish allocations, and the projected attainment percentage by fishery under both the current trip limits and the Council's recommended adjusted trip limits. These projections were based on the most recent catch information available through late August 2022. Industry did not request changes to sablefish trip limits for the LE or OA fishery south of 36° N. lat. Therefore, NMFS and the Council did not consider trip limit changes for these fisheries at this time.

As shown in Table 1, under the current trip limits, the model predicts catches of sablefish will be at or below 56 percent, or 178 mt of the 320 mt allocation, for LE fishery north of 36° N. lat. and 70 percent, or 371 mt of the 527 mt allocation, for OA fishery north of 36° N. lat. Under the Council's recommended trip limits, sablefish attainment is projected to increase in the LE and OA fisheries north of 36° N. lat. up to 77 and 89 percent, respectively.

Trip limit increases for sablefish are intended to increase attainment of the non-trawl HG. The proposed trip limit increases do not change projected impacts to co-occurring rebuilding species compared to the impacts anticipated in the 2021-2022 harvest specifications because the projected impacts to those species assume that the entire sablefish ACL is harvested. Therefore, the Council recommended and NMFS is implementing, by modifying Tables 2 North and South to part 660, subpart E, and Tables 3 North and South to part 660, subpart F, trip limit changes for the LE sablefish fishery north of 36° N. lat. and trip limit changes for the OA sablefish fishery north of 36° N. lat. as shown above in Table 1. These changes will be implemented through the end of 2022.

Prior to the September 2022 meeting, the GMT received a request from an OA fisherman from Northern California to increase the canary rockfish OA north of 40°10′ N. lat. trip limit to better align with the yellowtail rockfish trip limit in order to reduce regulatory discarding of canary rockfish. The 2022 coastwide ACL for canary rockfish is 1,307 mt.

To evaluate potential increases to canary rockfish trip limits, the GMT made model-based landings projections under current regulations and alternative trip limits, including the limits ultimately recommended by the Council, for the LE and OA fisheries through the remainder of the year. The GMT evaluated changes to the trip limits for canary rockfish both north and south of 40°10′ N. lat. Table 2 shows the projected canary rockfish landings, the canary rockfish allocations, and the projected attainment percentage by fishery under both the current trip limits and the Council's recommended adjusted trip limits for north of 40°10′ N. lat. and Table 3 shows the same metrics for south of 40°10′ N. lat. These projections were based on the most recent catch information available through late August 2022.

Under the current trip limits, the model predicts catches of canary rockfish coastwide will total 30.9 mt (including discard mortality), which is 25 percent of the 2022 non-trawl commercial share of canary rockfish (123.5 mt). Under the Council's recommended trip limits, canary rockfish mortality is expected to increase to 35 mt coastwide (including discard mortality), which is 28 percent of the 2022 non-trawl commercial share of canary rockfish.

Trip limit increases for canary rockfish are intended to increase attainment of the non-trawl commercial share. The proposed trip limit increases do not change projected impacts to co-occurring rebuilding species compared to the impacts anticipated in the 2021-2022 harvest specifications because the projected impacts to those species assume that the entire canary rockfish ACL is harvested. Therefore, the Council recommended and NMFS is implementing, by modifying Table 2 North and South to part 660, subpart E, and Table 3 North and South to part 660, subpart F, trip limit changes for LE canary rockfish north and south of 40°10′ N lat. and trip limit changes for OA canary rockfish fishery north and south of 40°10′ N lat. as shown above in Tables 2 and 3. These changes will be implemented through the end of 2022.

Prior to the September 2022 meeting, the GMT also received a request to increase the lingcod trip limits north of 42° N lat. to reduce regulatory discarding and increase economic opportunity. Lingcod is managed with an ACL north of 40°10′ N lat. and an ACL south of 40°10′ N lat. The 2022 ACL for lingcod north of 40°10′ N lat. is 4,958 mt.

To evaluate potential increases to lingcod trip limits north of 42° N lat., the GMT made model-based landings projections under current regulations and alternative trip limits, including the limits ultimately recommended by the Council, for the LE and OA fisheries through the remainder of the year. Table 4 shows the projected lingcod landings, the lingcod allocations, and the projected attainment percentage by fishery under both the current trip limits and the Council's recommended adjusted trip limits for north of 42° N lat. These projections were based on the most recent catch information available through late August 2022.

Under the current trip limits, the model predicts catches of lingcod north of 42° N lat. will total 182.76 mt, which is 7.1 percent of the 2022 non-trawl allocation of lingcod (2,573.791 mt). Under the Council's recommended trip limits, lingcod mortality north of 42° N lat. is expected to increase to 188.76 mt, which is 7.3 percent of the 2022 non-trawl allocation of lingcod (2,573.791 mt).

Trip limit increases for lingcod are intended to marginally increase attainment of the non-trawl allocation. The proposed trip limit increases do not appreciably change projected impacts to co-occurring rebuilding species compared to the impacts anticipated in the 2021-2022 harvest specifications because the projected impacts to those species assume that the entire lingcod ACL is harvested. Therefore, the Council recommended and NMFS is implementing, by modifying Table 2 North to part 660, subpart E, and Table 3 North to part 660, subpart F, trip limit changes for LE and OA lingcod north of 42° N lat. as shown above in Table 4. These changes will be implemented through the end of 2022.

This final rule makes routine inseason adjustments to groundfish fishery management measures, based on the best scientific information available, consistent with the PCGFMP and its implementing regulations.

This action is taken under the authority of 50 CFR 660.60(c) and is exempt from review under Executive Order 12866.

The aggregate data upon which these actions are based are available for public inspection by contacting Keeley Kent in NMFS West Coast Region (see FOR FURTHER INFORMATION CONTACT , above), or view at the NMFS West Coast Groundfish website: https://www.fisheries.noaa.gov/species/west-coast-groundfish.

Pursuant to 5 U.S.C. 553(b), NMFS finds good cause to waive prior public notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. The adjustments to management measures in this document increase trip limits for fisheries in Washington, Oregon, and California to allow additional economic opportunity while keeping catch within allocations established by the 2021-2022 harvest specifications. New information became available at the September 2022 Council meeting showing that updated 2022 catch projections using the most recent available data were lower than projections made during the harvest specifications process due to a combination of changing fishery conditions, and trip limit changes made during the 2021 fishing year. The trip limit increases are for the LE and OA sectors for sablefish north of 36° N lat., canary rockfish, and lingcod north of 42° N lat. These changes are projected to increase economic value of the fisheries by $283,335 for sablefish, $25,324 for canary, and $10,660 for lingcod as well as reduce regulatory discards in these fisheries. No aspect of this action is controversial, and changes of this nature were anticipated in the final rule for the 2021-2022 harvest specifications and management measures which published on December 11, 2020 (85 FR 79880).

Delaying implementation to allow for public comment would likely reduce the economic benefits to the commercial fishing industry and the businesses that rely on that industry because it is unlikely the new regulations would publish and could be implemented before the end of the calendar year. Therefore, providing a comment period for this action could significantly limit the economic benefits to the fishery, and would hamper the achievement of optimum yield from the affected fisheries.

Therefore, the NMFS finds reason to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(1) so that this final rule may become effective upon publication in the Federal Register . The adjustments to management measures in this document affect commercial fisheries by increasing opportunity and allowing greater economic benefit. These adjustments were requested by the Council's advisory bodies, as well as members of industry during the Council's September 2022 meeting, and recommended unanimously by the Council. No aspect of this action is controversial, and changes of this nature were anticipated in the biennial harvest specifications and management measures established through a notice and comment rulemaking for 2021-2022 (85 FR 79880, December 11, 2020).

For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:

Background

This final rule is being promulgated in accordance with recommendations developed by the Pacific Fishery Management Council (Council), first recommended in 2008 and reaffirmed at their March 2022 meeting. For a full history of the Council's development of this action, please see the “Background” section of the proposed rule (87 FR 39792, July 5, 2022).

This final rule creates a Federal electronic logbook requirement for vessels participating in the directed open access (OA) and limited entry fixed gear (LEFG) groundfish fishery sectors, as well as those vessels that use non-trawl gear under the Shorebased Individual Fishing Quota (IFQ) Program (herein referred to as the “IFQ gear switching sector”). The directed OA sector includes those vessels that target fish for groundfish in the exclusive economic zone (EEZ). The directed OA sector does not include those vessels that retain groundfish incidentally while targeting non-groundfish species ( e.g., the salmon troll fishery). The LEFG sector includes the primary sablefish fishery and the limited entry trip limit fisheries. The IFQ gear switching sector includes those vessels that participate in the Shorebased IFQ Program with trawl gear, but also “gear switch” and occasionally fish with non-trawl gear pursuant to their IFQ limits. From 2016-2019, an average of 536, 188, and 18 vessels participated in the directed OA, LEFG, and IFQ gear switching fishery sectors, respectively. Therefore, NMFS anticipates this action will affect a total of approximately 742 vessels.

This final rule will amend the regulations at §§ 660.11, 660.12, and 660.13 to include the new non-trawl logbook requirements. The amended regulations will include a new definition for the directed OA sector, as well as new gear types that vessels can declare on their declaration reports ( e.g. declaration codes) and revisions to existing declaration codes with the primary purpose of ensuring those codes better align with the gear profiles as they will be described in the electronic non-trawl logbook application. Additionally, the revised declaration codes would allow NOAA's Office of Law Enforcement (OLE) to identify those vessels that are subject to the new non-trawl logbook requirement based on what gear type is declared.

The non-trawl logbook will collect set-level information on catch, discards, fishing location, fishing depth, gear configuration, and sale. Most data will be required to be entered into the electronic logbook application while the vessel is fishing, with only the buyer information recorded upon landing. An electronic logbook entry will be required for each individual fishing trip. The electronic application will accommodate fishing trips for instances when gear is set and retrieved on different trips. Submission of electronic logbook data in the application will be required within 24 hours of offloading/landing (same timing requirement as electronic fish tickets).

NMFS, the Council, the Groundfish Management Team (GMT), the Northwest Fisheries Science Center, and the Pacific States Marine Fisheries Commission (PSMFC) will use the data obtained from the logbook application for analyses of catch locations and bycatch hotspots, spot verification of fish tickets, analyses on gear usage by area, stock assessments, and a variety of other applications. Additionally, Federal groundfish regulations (see 50 CFR 660.216(e)(7) and 50 CFR 660.316(e)(7)) require vessels to make the logbook data available to fishery observers under the West Coast Groundfish Observer Program (WCGOP). The observers collect biological samples and pair these samples with logbook data describing vessel position, target, depth, and retained catch. These data are not always accessible from other sources, such as equipment on the ship. Finally, the logbook data may also be used by NOAA's OLE and the U.S. Coast Guard in investigations.

NMFS has contracted with the PSMFC to develop an electronic logbook application. The PSMFC will house and manage the logbook data. The application will ultimately be available for download free of charge on smart phones, tablets, and laptop computers; however, initial rollout may be limited to a smart phone application, subject to timing constraints. Once the electronic application is finalized and available (expected no later than December 2022), NMFS will send out an email notice to the groundfish email list that includes download and account set-up instructions. To register for the groundfish email list, provide your email address at: https://public.govdelivery.com/accounts/USNOAAFISHERIES/subscriber/new. After clicking submit, expand the “Regional Updates” drop-down list and navigate to “West Coast Updates”. Check the box next to “Groundfish” and then select “Submit” to subscribe.

For a minimum of one year from the effective date of this final rule, NMFS will accept paper logbook forms to provide a grace period for adapting to the electronic application. NMFS will prescribe the paper logbook forms that may be submitted to meet this requirement. Depending on the development status of the additional formats for the electronic application, NMFS may extend the optional paper logbook provision beyond one year from the effective date of the final rule. NMFS will issue a public notice at least 90 calendar days prior to ending the optional provision to submit a paper logbook. Each non-trawl logbook paper form will represent a single fishing trip, and the data will be matched to a landing receipt ( i.e., fish ticket) submitted to PSMFC by seafood first receivers ( i.e., buyers). This matching step acts as a data corroboration process for landings, and allows the PSMFC to identify and correct any errors in the data. Paper logbook submission will be required within 30 days of the date of landing. In December 2022 or earlier, the PSMFC will mail booklets of logbook forms to the state fish and wildlife agencies, which will then assist in distributing logbook forms to their respective fishermen. Shortly prior to mailing logbook forms, NMFS will email a public notice to the groundfish email distribution list to provide advance notification.

Under this final rule, vessels will be required to send the alternative paper logbook forms to the PSFMC, on behalf of NMFS, at: Pacific States Marine Fisheries Commission, 205 SE Spokane St. Suite #100, Portland, OR 97202.

NMFS and the PSMFC are consulting with industry representatives and end-users of the data ( i.e., the GMT and state representatives) on the electronic logbook layout and design. The PSFMC will organize and host beta-testing of the electronic logbook application once a draft version is ready for use (currently expected in the fall of 2022). In order to participate in the official beta-testing of the electronic logbook application, please email the PSFMC at FedElog@psmfc.org. NMFS will send a public announcement via the groundfish email list when the PSMFC schedules specific dates for any beta-testing workshops.

This final rule is structured to minimize impacts on those vessels that are already subject to comparable logbook requirements. For example, those vessels that gear switch in the Shorebased IFQ Program and use electronic monitoring (EM) in lieu of an observer currently record discards on a paper logbook form (see § 660.604(s)). Those vessels would be required to transition to submit the electronic non-trawl logbook application instead of the paper logbook forms, with the exception of the first year(s), when they would be permitted to continue submitting their regular paper form as they adapt to the electronic application.

NMFS held a public comment period on the proposed rule (87 FR 39792; July 5, 2022) from July 5, 2022, to August 4, 2022. NMFS received a total of seven public comment submissions. Six of the public comments were from commercial fishermen that participate in one of the affected sectors. NMFS also received a comment from the California Department of Fish and Wildlife (CDFW). NMFS responds to each of these public comments below. In some cases, similar concepts across multiple public comment submissions are summarized and grouped in one response, and in other cases, separate concepts in one public comment submission are described and responded to separately.

Comment 1: Three fishery participants commented that the non-trawl logbook requirement is duplicative of data already collected through other means, including vessel monitoring system (VMS) units, landing receipts, and observer data.

Response: The logbook will collect location-specific catch and discard data, as well as effort data, that is not available fleet-wide from any other source in the Federal non-trawl fisheries. The OA sector, like the other non-trawl sectors, is subject to partial observer coverage. NMFS develops estimations of fleet-wide discards using the data from vessels that were observed; however, that information is not available on a location-specific basis. Landing receipts only provide retained catch information; they do not contain information on discards, specific catch location, gear configuration, or fishing depth. VMS data provide location data, but are not connected to catch and discard data by location. More precise location-specific catch and discard information collected through the logbook could help the Council and NMFS better target management responses to, for example, a bycatch concern or catch at risk of exceeding a sector allocation or annual catch limit. These management actions could potentially close smaller areas, and be less disruptive to fisheries, because management concerns could be narrowed to a specific location.

Comment 2: Two fishery participants expressed concern over the operational burden that would be imposed through the requirement to record the time and location of every gear set, especially for smaller vessels that make a large amount of drops or sets per fishing trip and across many different fishing locations.

Response: For fishing trips where traditional longline and/or pot gear are not being used, logbook users should record a new fishing location and set number if the vessel actively motors to a different location greater than 1 nautical mile away or to a distinguishably different geographic area ( e.g., a new reef). For example, if 30 drops from a rod and reel gear type are made in one fishing location, then the vessel should record the time that the first hook entered the water and the time that the last hook was retrieved. These methods align with what a WCGOP observer would record if onboard the vessel. These guidelines are included in the Compliance Guide associated with this rule, which is available at https://www.fisheries./noaa.gov/west-coast/sustainable-fisheries/compliance-guides-west-coast-groundfish.

Comment 3: A private fisher out of Santa Barbara, California, asked for clarification about whether catch in both state and Federal waters would be required in each logbook submission if both waters were fished in a single trip.

Response: Logbook data is only required for fishing activity that takes place in the EEZ. Any fishing activity that takes place in state territorial waters, even if conducted on the same trip as fishing activity in Federal waters, will not be required for inclusion in the Federal logbook submission. In some cases, West Coast states have their own requirements for fishing activity in state territorial waters.

Comment 4: A private fisher out of Half Moon Bay, California, commented that he does not oppose the collection of fishing information in the non-trawl logbook, but recommended that fishing location data be retrieved via each boat's VMS as opposed to the vessel crew recording the fishing location in the non-trawl logbook.

Response: NMFS and the PSMFC evaluated the possibility of obtaining fishing location data from VMS units as an alternative to fisher-reported latitude and longitude coordinates. Although VMS location data is precise enough for enforcement applications ( e.g., ensuring vessels are not fishing in closed areas), it is not precise enough for other applications that the logbook data will be used for ( e.g., stock assessments and area-specific management responses). Additionally, connecting VMS data to logbook submissions would be technically challenging and likely not achievable by the time of this rule's implementation. For these reasons, NMFS determined that VMS location data is not a feasible option for obtaining precise fishing location data at this time. However, if recording fishing location data proves too operationally challenging for certain types of affected vessels in the future, NMFS will continue investigating a way to use VMS data in lieu of fisher-reported latitude and longitude coordinates.

Comment 5: A private fisher out of Bolinas, California, commented that he does not have a smart phone and would be inconvenienced if required to get one for the new non-trawl logbook requirement.

Response: NMFS intends for the electronic logbook application to be available for download on tablets and laptops, in addition to smart phones. Although NMFS expects that at initial implementation in January 2023, the electronic application will only be available for download on a smart phone, NMFS is also providing a minimum one year grace period to use paper logbook forms in lieu of the electronic application. NMFS expects that by the end of this grace period, the electronic application will be available on the other devices and not just limited for download on a smart phone.

Comment 6: A private fisher from McKinleyville, California, commented that on smaller vessels, electronic devices and alternative paper logs will get damaged in the salt spray, which would cause the constant need to replace electronic devices.

Response: Under this rule, instantaneous data entry is not required. Fishermen will have 2 hours from the time of setting/retrieving gear to complete that portion of their logbook entries (see regulations below). Electronic devices and/or logbook forms can be stored in the wheelhouse while fishermen are handling gear.

Comment 7: A member of the public commented that it would be unsafe for fishermen to fill out the logbook information while fishing.

Response: Under this rule, instantaneous data entry is not required. Fishermen will have 2 hours from the time of setting/retrieving gear to complete that portion of their logbook entries (see regulations below). The fisher will not need to be handling an electronic device at the same time as setting or retrieving gear.

Comment 8: A private fisher out of Spring Valley, California, requested a change to observer data recording protocol. Specifically, the commenter asked that fish released with a descending device not count as discard mortality.

Response: NMFS is not proposing any modifications to observer protocols through this rulemaking, and therefore this comment is beyond the scope of the proposed rule.

Comment 9: CDFW commented that it generally supports the proposed rule but opposes the fact that the non-trawl logbook requirement will only apply in the EEZ. CDFW stated that the non-trawl logbook should also apply in California state waters.

Response: At the September 2021 and March 2022 Council meetings, NMFS provided reports to the Council requesting clarification on the intended scope of the action. In those reports, NMFS stated that the logbook requirement would only apply in the EEZ ( i.e., 3-200 nautical miles), consistent with 50 CFR 660.10(a). Accordingly, NMFS did not include analysis for vessels that fish in state waters as part of this action. NMFS recommends that if the State is interested in collecting that data, California consider a complementary state logbook requirement using the same logbook application for vessels fishing in state waters.

Comment 10: CDFW commented that the logbook is needed to collect information on seabird and whale interactions.

Response: The non-trawl logbook is required as a term and condition in the biological opinion for the Continuing Operation of the Pacific Coast Groundfish Fishery on Endangered Species Act (ESA)-listed seabirds (01EOFW00-20l7-F-0316) and is a conservation recommendation in the biological opinion for the Continuing Operation of the Pacific Coast Groundfish Fishery on ESA-listed humpback whales (WCRO-2018-01378). The purpose is to collect additional effort data in groundfish fishery sectors with partial-observer coverage ( e.g., number of hooks, number of pots, etc.) which help inform the bycatch estimation models used in conjunction with documented takes. The logbook will not require that fishermen record data on seabird or whale interactions.

No changes were made from the proposed rule.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the Pacific Coast Groundfish Fishery Management Plan, other provisions of the Magnuson-Stevens Act, and other applicable laws.

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

There are no relevant Federal rules that may duplicate, overlap, or conflict with this action.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

This final rule contains a new collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. 3507(d)) (PRA). This rule adds a Federal requirement to complete and submit data in the non-trawl electronic logbook application for fishing activities in the directed OA, LEFG, and IFQ gear switching fishery sectors. Public reporting burden for the Federal non-trawl logbook requirement is estimated to average 30 minutes per logbook submission, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. The average vessel took about 14 fishing trips per year between 2016-2019, which would result in about 7 additional hours of paperwork to comply with the new logbook requirement over the course of the year. Vessels pursuing a targeted non-trawl groundfish strategy would be most impacted by the final rule. NMFS estimates that a subset of about ten vessels of the 742 affected vessels pursue such a strategy and take 100-180 trips per vessel per year; these entities would have an estimated additional burden of approximately 50-90 hours per vessel.

In addition, this final rule revises the existing requirements for the collection of information 0648-0573 by adding and modifying declaration codes for the purpose of monitoring and enforcing the new logbook requirement. These new declaration codes are not anticipated to alter the number of respondents, anticipated responses, burden hours, or burden costs, as the affected vessels are already required to declare their fishing activities. The new declaration codes would allow NOAA's OLE to track those vessels that are subject to the logbook requirement based on what gear type is being used and the location of their fishing activity. Public reporting burden for submitting a declaration report is estimated to average 4 minutes per individual report, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

We have submitted these new collection-of-information requirements to OMB for approval. Approved information collections may be found on www.reginfo.gov/public/do/PRAMain. We also invite the general public and other Federal agencies to comment on information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Written comments and recommendations for this information collection should be submitted through www.reginfo.gov/public/do/PRAMain.

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 660 is amended as follows:

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The annual 2022 total allowable catch (TAC) of pollock in Statistical Area 610 of the GOA is 23,714 metric tons (mt) as established by the final 2022 and 2023 harvest specifications for groundfish in the GOA (87 FR 11599, March 2, 2022).

In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the annual 2022 TAC of pollock in Statistical Area 610 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 23,514 mt and is setting aside the remaining 200 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the GOA.

While this closure is effective, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

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

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, it would prevent NMFS from responding to the most recent fisheries data in a timely fashion, and would delay the closure of directed fishing for pollock in Statistical Area 610 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 27, 2022.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2022 Pacific cod TAC specified for trawl catcher vessels in the BSAI is 28,855 metric tons (mt) as established by the final 2022 and 2023 harvest specifications for groundfish in the BSAI (87 FR 11626, March 2, 2022) and reallocation (87 FR 51004, August 19, 2022).

The 2022 Pacific cod TAC specified for catcher vessels greater than or equal to 60 feet (18.3 m) LOA using pot gear in the BSAI is 11,216 mt as established by the final 2022 and 2023 harvest specifications for groundfish in the BSAI (87 FR 11626, March 2, 2022).

The 2022 Pacific cod TAC allocated to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear in the BSAI is 5,518 mt as established by final 2022 and 2023 harvest specifications for groundfish in the BSAI (87 FR 11626, March 2, 2022) and reallocations (87 FR 18289, March 30, 2022; 87 FR 51004, August 19, 2022).

The Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that trawl catcher vessels will not be able to harvest 1,000 mt of the 2022 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)( 9 ).

Therefore, in accordance with § 679.20(a)(7)(iii)(A), NMFS apportions 800 mt of Pacific cod from trawl catcher vessels to the annual amount specified for catcher vessels greater than or equal to 60 feet (18.3 m) LOA using pot gear, and 200 mt of Pacific cod from trawl catcher vessels to the annual amount specified for catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.

The harvest specifications for 2022 Pacific cod included in final 2022 and 2023 harvest specifications for groundfish in the BSAI (87 FR 11626, March 2, 2022) and reallocations (87 FR 18289, March 30, 2022; 87 FR 51004, August 19, 2022) is revised as follows: 27,855 mt to trawl catcher vessels, 12,016 mt to catcher vessels greater than or equal to 60 feet (18.3 m) LOA using pot gear, and 5,718 mt to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.

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

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would allow for harvests that exceed the originally specified apportionment of the Pacific cod TAC. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 28, 2022.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

Authority: 16 U.S.C. 1801 et seq.