The Common Crop Insurance Regulations in 7 CFR part 457 were revised by a final rule with request for comments published in the Federal Register on October 25, 2022 (87 FR 64365). Changes were made in that rule to the Walnut Crop Insurance Provisions. In reviewing the changes made, FCIC found an incorrect instruction in the Settlement of Claim section. This document makes the correction in the Walnut Crop Insurance Provisions.

Accordingly, 7 CFR part 457 is corrected by making the following amendment:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A300 B2-1A, B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes; Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes; Model A300 B4-605R and B4-622R airplanes; Model A300 C4-605R Variant F airplanes; Model A300 F4-605R and F4-622R airplanes; and Model A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes. The NPRM published in the Federal Register on September 27, 2022 (87 FR 58463). The NPRM was prompted by AD 2022-0058, dated March 28, 2022, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2022-0058) (referred to after this as the MCAI). The MCAI states that a Model A319 airplane lost the right-hand front windshield in flight, with consequent rapid flight deck depressurization, causing damage to flight deck items and systems, and significant increase of flightcrew workload. The investigations identified several contributing factors, including manufacturing variability, fretting between windshield components, water ingress, and electrical braids corrosion, which led to a thermal shock and overheat, damaging more than one windshield structural ply and impairing the structural integrity of the windshield. Due to the design similarity, this condition can also exist or develop on Model A300, A300-600, and A310 series airplanes. This condition, if not addressed, could lead to failure of the windshield, possibly result in injury to the flightcrew and in-flight depressurization of the airplane, and would significantly increase pilot workload.

In the NPRM, the FAA proposed to require repetitive inspections and ETMs of the affected parts, and applicable corrective actions, and prohibit the installation of affected parts under certain conditions, as specified in EASA AD 2022-0058. The FAA is issuing this AD to address possible windshield failure. This condition, if not addressed, could possibly result in injury to the flightcrew and in-flight depressurization of the airplane, and would significantly increase pilot workload.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1237.

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

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the 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 this product. This AD is adopted as proposed in the NPRM.

EASA AD 2022-0058 specifies procedures for repetitive detailed inspections and ETMs of the affected parts, and applicable corrective actions. The corrective actions include replacing any affected window with a serviceable window. EASA AD 2022-0058 also prohibits installing certain part numbers.

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

The FAA estimates that this AD affects 120 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 on-condition action 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 on-condition action:

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all 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:

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 The Boeing Company Model 747-400 and 747-8 series airplanes. The NPRM published in the Federal Register on September 20, 2022 (87 FR 57422).

The NPRM was prompted by reports of an opened door 5 right ceiling stowage box that fell freely approximately 12 inches on a Model 747-8 airplane, and two additional door 5 ceiling stowage box free fall events on Model 747-400 airplanes. In one reported occurrence, an opened door 5 ceiling stowage box fell freely approximately 10 inches; in another, the stowage box fell freely approximately 8 inches. In each occurrence, a flight attendant was injured. Boeing and the supplier have since investigated and analyzed affected snubbers, part number (P/N) SP5378, used on the door 5 ceiling stowage boxes on Model 747-400 and 747-8 airplanes. It was determined that over time, air can get into the cylinder of the affected snubber and delay its damping functionality, which means the affected snubber will not meet the requirement of the door 5 ceiling stowage boxes to open at a rate of not more than 15 degrees per second, when open more than 2.5 inches. The supplier has designed a replacement snubber,P/N SP26172, which meets those requirements.

In the NPRM, the FAA proposed to require replacing certain snubbers of the door 5 ceiling stowage boxes on certain airplanes, and replacing certain snubbers and changing the location of the snubber attachments on certain other airplanes. The NPRM also proposed to require an operation check of the stowage boxes or snubber, as applicable, and applicable on-condition actions.

The FAA is issuing this AD to address an unlatched door 5 ceiling stowage box, which can open and fall freely more than 2.5 inches, possibly resulting in injury to the flightcrew or maintenance personnel.

The FAA received comments from Air Line Pilots Association, International, who supported the NPRM without change.

The FAA reviewed the relevant data, considered the 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, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Boeing Special Attention Requirements Bulletin 747-25-3726 RB, dated January 6, 2022. This service information specifies procedures for replacing certain snubbers of the door 5 ceiling stowage boxes on certain airplanes, and replacing certain snubbers and changing the location of the snubber attachments on other airplanes. The service information also specifies procedures for an operation check of the stowage boxes or snubbers, as applicable, to ensure that the free-fall distance is no greater than 2.5 inches, and applicable on-condition actions including a post-snubber-replacement check until eventual replacement of any affected snubber. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA estimates that this AD affects 45 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 actions that would be required based on the results of the required inspection. The agency has no way of determining the number of aircraft that might need this replacements:

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:

History

The FAA published a final rule in the Federal Register (87 FR 75465; December 9, 2022) for Docket FAA-2022-0571, which established Class E airspace extending upward from 700 feet above the surface at Christmas Valley Airport, OR. Subsequent to publication, the FAA identified that the Final Rule incorrectly annotated the airspace class designator in the text header of the newly established Class E airspace beginning at 700 feet above the surface at Christmas Valley Airport, OR. The legal description's text header currently reads “ANM OR E Christmas Valley, OR [New], but should read “ANM OR E5 Christmas Valley, OR [New].” This action corrects the error.

The Class E5 airspace designation is 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.

Accordingly, pursuant to the authority delegated to the FAA, “Establishment of Class E Airspace; Christmas Valley Airport, OR”, published in the Federal Register of December 9, 2022 (87 FR 75465), FR Doc. 2022-26646, is corrected as follows:

Background Entity List Changes

The Entity List (supplement no. 4 to part 744 of the EAR) identifies entities for which there is reasonable cause to believe, based on specific and articulable facts, that the entities have been involved, are involved, or pose a significant risk of being or becoming involved in activities contrary to the national security or foreign policy interests of the United States, pursuant to § 744.11(b). The EAR impose additional license requirements on, and limit the availability of most license exceptions for, exports, reexports, and transfers (in-country) when a listed entity is a party to the transaction. The license review policy for each listed entity is identified in the “License Review Policy” column on the Entity List, and the impact on the availability of license exceptions is described in the relevant Federal Register document that added the entity to the Entity List. The Bureau of Industry and Security (BIS) places entities on the Entity List pursuant to part 744 (Control Policy: End-User and End-Use Based) and part 746 (Embargoes and Other Special Controls) of the EAR.

The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and makes all decisions to remove or modify an entry by unanimous vote.

The ERC determined to add the following entities to the Entity List pursuant to §  744.11(b)(4)(ii) under the destination of Russia: Alliance EG Ltd.; FSUE Rosmorport Far Eastern Basin Branch; Intercom Ltd.; Nasosy Ampika; Nuclin LLC; SDB IRE RAS; Security 2 Business Academy; Tavrida Microelectronics; and VIP Technology Ltd. These entities are being added due to the long-term (60 days or greater) prevention of a successful end-use check conducted by or on behalf of BIS. Specifically, there has been a sustained lack of cooperation by the host government to schedule and facilitate the completion of a timely end-use check of persons listed on the Unverified List. As a result of the sustained inability to conduct an end-use check, there is an unacceptable risk of diversion or misuse of items subject to the EAR. The ERC believes that prior review of exports, reexports, or transfers (in-country) involving the entities and the possible imposition of license conditions or license denial enhance BIS's ability to prevent violations of the EAR. These entities are added to the Entity List with a license requirement for all items subject to the EAR. BIS will review license applications pertaining to these entities under a policy of denial, pursuant to § 746.8(b). No license exceptions are available for exports, reexports, or transfers (in-country) to these entities.

As a conforming change, each of the entities added to the Entity List by this rule is also removed from the Unverified List. For other changes to the Unverified List made by this rule, which are separate from this action, please see below.

The UVL, found in supplement no. 6 to part 744 of the EAR, contains the names and addresses of foreign persons who are or have been parties to a transaction, as described in § 748.5 of the EAR, involving the export, reexport, or transfer (in-country) of items subject to the EAR. These foreign persons are added to the UVL because BIS or federal officials acting on BIS's behalf were unable to verify their bona fides ( i.e., legitimacy and reliability relating to the end use and end user of items subject to the EAR) through the completion of an end-use check. Sometimes these checks, such as a pre-license check (PLC) or a post-shipment verification (PSV), cannot be completed satisfactorily for reasons outside the U.S. Government's control.

There are any number of reasons why these checks cannot be completed to the satisfaction of the U.S. Government. The reasons include, but are not limited to: (1) reasons unrelated to the cooperation of the foreign party subject to the end-use check (for example, BIS sometimes initiates end-use checks but is unable to complete them because the foreign party cannot be found at the address indicated on the associated export documents and BIS cannot contact the party by telephone or email); (2) reasons related to a lack of cooperation by the host government that fails to schedule and facilitate the completion of an end-use check, for example by host government agencies' lack of responses to requests to conduct end-use checks, actions preventing the scheduling of such checks, or refusals to schedule checks in a timely manner; or (3) when, during the end-use check, a recipient of items subject to the EAR is unable to produce the items that are the subject of the end-use check for visual inspection or provide sufficient documentation or other evidence to confirm the disposition of the items.

BIS's inability to confirm the bona fides of foreign persons subject to end-use checks for the reasons described above raises concerns about the suitability of such persons as participants in future exports, reexports, or transfers (in-country) of items subject to the EAR; this also indicates a risk that such items may be diverted to prohibited end uses and/or end users. Under such circumstances, there may not be sufficient information to add the foreign person at issue to the Entity List under § 744.11 of the EAR. Therefore, BIS may add the foreign person to the UVL.

As provided in § 740.2(a)(17) of the EAR, the use of license exceptions for exports, reexports, and transfers (in-country) involving a party or parties to the transaction who are listed on the UVL is suspended. Additionally, under § 744.15(b) of the EAR, there is a requirement for exporters, re-exporters, and transferors to obtain (and maintain a record of) a UVL statement from a party or parties to the transaction who are listed on the UVL before proceeding with exports, reexports, and transfers (in-country) to such persons, when the exports, reexports and transfers (in-country) are not subject to a license requirement. Finally, pursuant to § 758.1(b)(8), Electronic Export Information (EEI) must be filed in the Automated Export System (AES) for all exports of tangible items subject to the EAR where parties to the transaction, as described in § 748.5(d) through (f), are listed on the UVL.

Requests for the removal of a UVL entry must be made in accordance with § 744.15(d) of the EAR. Decisions regarding the removal or modification of UVL entry will be made by the Deputy Assistant Secretary for Export Enforcement, based on a demonstration by the listed person of their bona fides.

This final rule removes 27 persons from the UVL after BIS was able to verify their bona fides. This rule removes ENGRO Polymer & Chemicals Limited under the destination of Pakistan and the following 26 persons under the destination of China: “Beijing Naura Magnetoelectric Technology Co., Ltd.;” “CCIC Southern Electronic Product Testing Co., Ltd.;” “Center for High Pressure Science and Technology Advanced Research;” “Changchun National Extreme Precision Optics Co., Ltd.;” “Chinese Academy of Geological Sciences, Institute of Mineral Resources;” “Chinese Academy of Science (CAS) Institute of Chemistry;” “Dongguan Durun Optical Technology Co., Ltd.;” “Foshan Huaguo Optical Co., Ltd.;” “Guangdong University of Technology;” “Guangxi Intai Technology Co., Ltd.;” “Guangxi Yuchai Machinery Co., Ltd.;” “Guangzhou Hymson Laser Technology Co., Ltd.;” “Heshan Deren Electronic Technology Co., Ltd.;” “Hubei Longchang Optical Co., Ltd.;” “Hubei Sinophorus Electronic Materials Co., Ltd.;” “Kunshan Heng Rui Cheng Industrial Technology;” “Shanghai Fansheng Optoelectronic Science & Technology Co. Ltd.;” “Shanghai Micro Electronics Equipment (Group) Co., Ltd.;” “ShanghaiTech University;” “Southern University of Science and Technology, Department of Mechanical and Energy Engineering;” “University of Chinese Academy of Sciences, School of Chemical Sciences;” “University of Shanghai for Science and Technology;” “Vital Advanced Materials Co., Ltd.;” “Wuhan Juhere Photonic Tech Co., Ltd.;” “Wuxi Biologics (Shanghai) Co., Ltd.;” and “Zhongshan Thincloud Optics Co., Ltd.;”. BIS is removing these 27 persons pursuant to § 744.15(c)(2) of the EAR.

Removal of a person from the UVL because BIS was able to verify their bona fides does not affect any other section of the EAR that imposes a license requirement for exports, reexports, transfers (in-country), or exports from abroad or activities of U.S. persons. In addition, this action does not preclude subsequent action, including adding such persons to the Entity List pursuant to part 744 of the EAR.

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

For the changes being made in this final rule, shipments of items removed from eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export, reexport, or transfer (in-country), on [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER ], pursuant to actual orders for export, reexport, or transfer (in-country) to or within a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR).

Executive Orders 13563 and 12866 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, distribute 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 final rule is not a “significant regulatory action” under Executive Order 12866.

This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number.

The Entity List additions involves collections previously approved by OMB under control number 0694-0088, Simplified Network Application Processing System, which includes, among other things, license applications and commodity classifications, and carries a burden estimate of 29.4 minutes for a manual or electronic submission for a total burden estimate of 33,133 hours. Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule.

BIS believes that the overall increases in burdens and costs will be minimal and will fall within the already approved amounts for these existing collections.

Pursuant to Section 4821 of ECRA, this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking and opportunity for public participation.

Further, no other law requires notice of proposed rulemaking or opportunity for public comment for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730 through 774) is amended as follows:

Order No. 552  1 adopted accounting requirements for allowances for emission of sulfur dioxide under the Clean Air Act Amendments of 1990, and for assets and liabilities created through the ratemaking actions of regulatory agencies. It also adopted new reporting schedules and revised other schedules to be used by jurisdictional companies in reporting information on allowances and regulatory assets and liabilities. These accounting requirements are collections of information under OMB control nos. 1902-0021, 1902-0028, 1902-0029, and 1902-0030. Order No. 552 was published in the Federal Register on April 7, 1993 (58 FR 17982). It became effective on January 1, 1993, with the exception of the information collection provisions, which became effective upon OMB approval. The Commission submitted a copy of the changes to Form Nos. 1-F, 2, and 2A to OMB for its review on April 8, 1993, and OMB approved the information collection on May 25, 1993, under OMB control nos. 1902-0028, 1902-0029, and 1902-0030. The Commission submitted a copy of the changes to Form No. 1 on July 19, 1993, and OMB approved the information collection on August 18, 1993, under OMB control no. 1902-0021.

I. Background

The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497, 25 U.S.C. 2701 et seq., was signed into law on October 17, 1988. The Act established the National Indian Gaming Commission (“NIGC” or “Commission”) and set out a comprehensive framework for the regulation of gaming on Indian lands. IGRA, in several instances, requires that the Commission provide an opportunity for a hearing on proposed fines, temporary closure orders, and removals of a certificate of self-regulation. Also through regulatory action, the Commission has afforded appeals for notices of violations, modified and voided management contracts, and notices of late fees and late fee assessments. As to all these areas, part 585 of NIGC regulations offers appeals to the Commission on written submissions.

The Commission comprehensively updated the appeals regulations in 2012, consolidating them in one subchapter. (77 FR 58941-01). This rule augments the appeals regulations by inserting a comprehensive settlement procedure for appeals under part 585, rectifying its absence in the current regulations, and limits the motions permitted during an appeal.

On June 9, 2021, the National Indian Gaming Commission sent a Notice of Consultation announcing that the Agency intended to consult on a number of topics, including proposed changes to the appeals regulations in part 585. Prior to consultation, the Commission sent another Notice of Consultation, dated September 13, 2021, and released a proposed discussion draft of the regulations for review. The proposed amendments to these regulations were intended to solicit Tribes' views on: (1) the Commission inviting, directing or granting leave to the Chair to file or respond to motions and (2) supplying a settlement procedure for appeals to the Commission on written submissions. The Commission held three virtual consultation sessions in September and October of 2021 to receive tribal input on the possible changes. The Commission reviewed all comments received as part of the consultation process.

Upon reviewing the comments received during the consultation period, the Commission published a notice of proposed rulemaking (“NPRM”) on August 10, 2022. 87 FR 48615. The NPRM invited interested parties to participate in the rulemaking process by submitting comments and any supporting data to the NIGC by September 9, 2022.

The Commission received no comments to the proposed rule.

The rule will not have a significant impact on a substantial number of small entities as defined under the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Moreover, Indian Tribes are not considered to be small entities for the purposes of the Regulatory Flexibility Act.

The rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The rule does not have an effect on the economy of $100 million or more. The rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, local government agencies or geographic regions, nor will the rule have a significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of the enterprises, to compete with foreign based enterprises.

The Commission, as an independent regulatory agency, is exempt from compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2 U.S.C. 658(1).

In accordance with Executive Order 12630, the Commission has determined that the rule does not have significant takings implications. A takings implication assessment is not required.

In accordance with Executive Order 12988, the Commission has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

The Commission has determined that the rule does not constitute a major Federal action significantly affecting the quality of the human environment and that no detailed statement is required pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq.

The information collection requirements contained in this rule were previously approved by the Office of Management and Budget (OMB) as required by 44 U.S.C. 3501 et seq. and assigned OMB Control Number 3141-0007.

The National Indian Gaming Commission is committed to fulfilling its tribal consultation obligations—whether directed by statute or administrative action such as Executive Order (E.O.) 13175 (Consultation and Coordination with Indian Tribal Governments)—by adhering to the consultation framework described in its Consultation Policy published July 15, 2013. The NIGC's consultation policy specifies that it will consult with tribes on Commission Action with Tribal Implications, which is defined as: Any Commission regulation, rulemaking, policy, guidance, legislative proposal, or operational activity that may have a substantial direct effect on an Indian tribe on matters including, but not limited to, the ability of an Indian tribe to regulate its Indian gaming; an Indian Tribe's formal relationship with the Commission; or the consideration of the Commission's trust responsibilities to Indian tribes.

Pursuant to this policy, on June 9, 2021, the National Indian Gaming Commission sent a Notice of Consultation announcing that the Agency intended to consult on a number of topics, including proposed changes to the written submissions appeal process. Specifically, the Commission sought consultation on whether it should invite, direct, or grant leave to the Chair to file or respond to motions or add a comprehensive settlement procedure. On July 27, 2021, and July 28, 2021, the Commission held two virtual consultations on the proposed changes.

For the reasons set forth in the preamble, the Commission amends 25 CFR part 585 as follows:

Electronic Availability

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

On November 21, 2022, OFAC issued GL 13C to authorize certain transactions otherwise prohibited by the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587. GL 13C was made available on OFAC's website ( www.treas.gov/ofac ) when it was issued. The text of GL 13C is provided below.

Electronic Availability

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

On November 18, 2022, OFAC issued GL 54 to authorize certain transactions otherwise prohibited by the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587. At the time of issuance, OFAC made GL 54 available on its website ( www.treas.gov/ofac ). The text of this GL is provided below.

Electronic Availability

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

On April 6, 2022, the President, invoking the authority of, inter alia, the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq. ) (IEEPA), issued Executive Order (E.O.) 14071, “Prohibiting New Investment in and Certain Services to the Russian Federation in Response to Continued Russian Federation Aggression” (87 FR 20999, April 8, 2022). Among other prohibitions, section 1(a)(ii) of E.O. 14071 prohibits the exportation, reexportation, sale, or supply, directly or indirectly, from the United States, or by a United States person, wherever located, of any category of services as may be determined by the Secretary of the Treasury, in consultation with the Secretary of State, to any person located in the Russian Federation.

On November 21, 2022, the Secretary of the Treasury, in consultation with the Secretary of State, issued a category of services determination pursuant to E.O. 14071, “Prohibitions on Certain Services as They Relate to the Maritime Transport of Crude Oil of Russian Federation Origin.” OFAC made this determination available on its website ( www.treas.gov/ofac ) on November 22, 2022. The determination takes effect at 12:01 a.m. eastern standard time on December 5, 2022. The text of this determination is provided below.

Also on November 22, 2022, OFAC issued GLs 55, 56, and 57 to authorize certain transactions otherwise prohibited by the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587. At the time of their issuance, OFAC made GLs 55, 56, and 57 available on its website ( www.treas.gov/ofac ). The text of these GLs is provided below.

Electronic Availability

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

On November 15, 2022, OFAC issued GL 21 to authorize certain transactions otherwise prohibited by the Global Terrorism Sanctions Regulations, 31 CFR part 594. At the time of issuance, OFAC made GL 21 available on its website ( www.treas.gov/ofac ). GL 21 has an expiration date of December 15, 2022. The text of this GL is provided below.

I. Background

In accordance with the Privacy Act of 1974, DoD is modifying, renumbering, and renaming a system of records to reflect its status as a DoD-wide system of records and to support additional information systems being established within the DoD using the same categories of data for the same purposes. The system number is changing from DPR-39 to DoD-0012, and the name is changing from “DoD Personnel Accountability and Assessment System” to “Defense Accountability and Assessment Records.” This system of records covers DoD's maintenance of records about accountability for and status of DoD-affiliated individuals, including Military Service members, civilian employees, dependents and family members, contractors, and other DoD-affiliated personnel, in a natural or man-made disaster or public health emergency, similar events of concern, or when directed by the Secretary of Defense. Such events could include severe weather events, acts of terrorism or severe destruction, pandemics or major outbreaks, anomalous health incidents, and similar crises.

The Privacy Act permits Federal agencies to exempt eligible records in a system of records from certain provisions of the Act, including the provisions providing individuals with a right to request access to and amendment of their own records and accountings of disclosures of such records. If an agency intends to exempt a particular system of records, it must first go through the rulemaking process to provide public notice and an opportunity to comment on the exemption. The Office of the Secretary is amending 32 CFR part 310 to add a new Privacy Act exemption rule for this system of records. The DoD is claiming an exemption for this system of records because some of its records may contain classified national security information and providing notice, access, amendment, and disclosure of accounting of those records to an individual, as well as certain record-keeping requirements, may cause damage to national security. The Privacy Act, pursuant to 5 U.S.C. 552a(k)(1), authorizes agencies to claim an exemption for systems of records that contain information properly classified pursuant to executive order. DoD is claiming an exemption from several provisions of the Privacy Act, including various access, amendment, disclosure of accounting, and certain record-keeping and notice requirements, to prevent disclosure of any information properly classified pursuant to executive order, as implemented by DoD Instruction 5200.01 and DoD Manual 5200.01, Volumes 1 and 3.

This rule is being published as a direct final rule as the Department does not expect to receive any significant adverse comments. If such comments are received, this direct final rule will be cancelled and a proposed rule for comments will be published. If no such comments are received, this direct final rule will become effective ten days after the comment period expires.

For purposes of this rulemaking, a significant adverse comment is one that explains (1) why the rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the direct final rule will be ineffective or unacceptable without a change. In determining whether a significant adverse comment necessitates withdrawal of this direct final rule, the Department will consider whether the comment raises an issue that would have warranted a substantive response had it been submitted in response to a standard notice of a proposed rule. A comment recommending an addition to the rule will not be considered significant and adverse unless the comment explains how this direct final rule would be ineffective without the addition.

This direct final rule adds to the DoD's Privacy Act exemptions for Department-wide systems of records found in 32 CFR 310.13. Records in this system of records are only exempt from the Privacy Act to the extent the purposes underlying the exemption pertain to the record. A notice of a modified system of records for DoD-0012 is also published in this issue of the Federal Register .

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, distribute 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. It has been determined that this rule is not a significant regulatory action under these executive orders.

The Congressional Review Act, 5 U.S.C. 801 et seq., 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. DoD will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule cannot take effect until 60 days after it is published in the Federal Register . This direct final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The Assistant to the Secretary of Defense for Privacy, Civil Liberties, and Transparency has certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule is concerned only with the administration of Privacy Act systems of records within the DoD. Therefore, the Regulatory Flexibility Act, as amended, does not require DoD to prepare a regulatory flexibility analysis.

The Paperwork Reduction Act (PRA) was enacted to minimize the paperwork burden for individuals; small businesses; educational and nonprofit institutions; Federal contractors; State, local and tribal governments; and other persons resulting from the collection of information by or for the Federal government. The Act requires agencies obtain approval from the Office of Management and Budget before using identical questions to collect information from ten or more persons. This rule does not impose reporting or recordkeeping requirements on the public.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532) requires agencies to assess anticipated costs and benefits before issuing any rule whose mandates may result in the expenditure by State, local and tribal governments in the aggregate, or by the private sector, in any one year of $100 million in 1995 dollars, updated annually for inflation. This rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This rule will not have a substantial effect on State and local governments.

Executive Order 13175 establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct compliance costs on one or more Indian tribes, preempts tribal law, or effects the distribution of power and responsibilities between the federal government and Indian tribes. This rule will not have a substantial effect on Indian tribal governments.

Accordingly, 32 CFR part 310 is amended as follows:

I. Background

In accordance with the Privacy Act of 1974, DoD is establishing a new Department-wide system of records titled “Declared Public Health Emergency Exposure Records” DoD-0013. This system of records covers DoD's collection, use, and maintenance of records about individuals necessitated as a result of a declared public health emergency. These records are maintained to assist the DoD in establishing safe environments, identifying and protecting DoD-affiliated individuals at risk of transmission of or contracting the disease or agent at issue, and in supporting mission readiness.

The Privacy Act permits Federal agencies to exempt eligible records in a system of records from certain provisions of the Act, including the provisions providing individuals with a right to request access to and amendment of their own records and accountings of disclosures of such records. If an agency intends to exempt a particular system of records, it must first go through the rulemaking process to provide public notice and an opportunity to comment on the proposed exemption. The Office of the Secretary is amending 32 CFR part 310 to add a new Privacy Act exemption rule for this system of records. The DoD is claiming an exemption for this system of records because some of its records may contain classified national security information and providing notice, access, amendment, and disclosure of accounting of those records to an individual, as well as certain record-keeping requirements, may cause damage to national security. The Privacy Act, pursuant to 5 U.S.C. 552a(k)(1), authorizes agencies to claim an exemption for systems of records that contain information properly classified pursuant to executive order. DoD is claiming an exemption from several provisions of the Privacy Act, including various access, amendment, disclosure of accounting, and certain record-keeping and notice requirements, to prevent disclosure of any information properly classified pursuant to executive order, as implemented by DoD Instruction 5200.01 and DoD Manual 5200.01, Volumes 1 and 3.

This rule is being published as a direct final rule as the Department does not expect to receive any significant adverse comments. If such comments are received, this direct final rule will be cancelled and a proposed rule for comments will be published. If no such comments are received, this direct final rule will become effective ten days after the comment period expires.

For purposes of this rulemaking, a significant adverse comment is one that explains (1) why the rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the direct final rule will be ineffective or unacceptable without a change. In determining whether a significant adverse comment necessitates withdrawal of this direct final rule, the Department will consider whether the comment raises an issue that would have warranted a substantive response had it been submitted in response to a standard notice of a proposed rule. A comment recommending an addition to the rule will not be considered significant and adverse unless the comment explains how this direct final rule would be ineffective without the addition.

This direct final rule adds to the DoD's Privacy Act exemptions for Department-wide systems of records found in 32 CFR 310.13. Records in this system of records are only exempt from the Privacy Act to the extent the purposes underlying the exemption pertain to the record. A notice of a new system of records for DoD-0013 is also published in this issue of the Federal Register .

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, distribute 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. It has been determined that this rule is not a significant regulatory action under these executive orders.

The Congressional Review Act, 5 U.S.C. 801 et seq., 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. DoD will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule cannot take effect until 60 days after it is published in the Federal Register . This direct final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The Assistant to the Secretary of Defense for Privacy, Civil Liberties, and Transparency has certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule is concerned only with the administration of Privacy Act systems of records within the DoD. Therefore, the Regulatory Flexibility Act, as amended, does not require DoD to prepare a regulatory flexibility analysis.

The Paperwork Reduction Act (PRA) was enacted to minimize the paperwork burden for individuals; small businesses; educational and nonprofit institutions; Federal contractors; State, local and tribal governments; and other persons resulting from the collection of information by or for the Federal government. The Act requires agencies obtain approval from the Office of Management and Budget before using identical questions to collect information from ten or more persons. This rule does not impose reporting or recordkeeping requirements on the public.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532) requires agencies to assess anticipated costs and benefits before issuing any rule whose mandates may result in the expenditure by State, local and tribal governments in the aggregate, or by the private sector, in any one year of $100 million in 1995 dollars, updated annually for inflation. This rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This rule will not have a substantial effect on State and local governments.

Executive Order 13175 establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct compliance costs on one or more Indian tribes, preempts tribal law, or effects the distribution of power and responsibilities between the federal government and Indian tribes. This rule will not have a substantial effect on Indian tribal governments.

Accordingly, 32 CFR part 310 is amended as follows:

The Coast Guard will enforce the safety zone established in 33 CFR 165.1191, Table 1 to § 165.1191, Item number 24, for the San Francisco New Year's Eve Firework Display from noon on December 31, 2022, through 12:45 a.m. on January 1, 2023. The Coast Guard will enforce a 100-foot safety zone around the two fireworks barges during the loading, standby, transit, and arrival of the fireworks barges from the loading location to the display location and until the start of the fireworks display. On December 31, 2022, the fireworks barges will be loaded with pyrotechnics at Pier 50 in San Francisco, CA from appoximately noon until approximately 6 p.m. The fireworks barges will remain on standby at the loading location until their transit to the display location. From 10:45 p.m. to 11:15 p.m. on December 31, 2022 the loaded fireworks barges will transit from Pier 50 to the launch site near the San Francisco Ferry Plaza in approximate position 37°47′45″ N, 122°23′15″ W (NAD 83), where they will remain until the conclusion of the fireworks display. At approximately 11:59 p.m. on December 31, 2022, 15-minutes prior to the fireworks display, the safety zone will expand to encompass all navigable waters, from surface to bottom, within a circle formed by connecting all points 1,000 feet out from the fireworks barges. The firework barges will be near the San Francisco Ferry Plaza in San Francisco, CA in approximate position 37°47′45″ N, 122°23′15″ W (NAD 83) as set forth in 33 CFR 165.1191, Table 1, Item number 24. The safety zone will be enforced until 12:45 a.m. on January 1, 2023, or as announced via Broadcast Notice to Mariners.

In addition to this notification in the Federal Register , the Coast Guard plans to provide notification of the safety zone and its enforcement period via the Local Notice to Mariners.

Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM or other Official Patrol, defined as a federal, state, or local law enforcement agency on scene to assist the Coast Guard in enforcing the regulated area. Additionally, each person who receives notice of a lawful order or direction issued by the PATCOM or Official Patrol shall obey the order or direction. The PATCOM or Official Patrol may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

Background

On May 5, 2022, the Copyright Royalty Judges (Judges) received a Motion to Adopt Settlement of Statutory Royalty Rates and Terms for Subpart B Configurations (Motion to Adopt Proposed Settlement 2) from National Music Publishers' Association, Inc. and Nashville Songwriters Association International (together, Licensors) and Sony Music Entertainment, UMG Recordings, Inc., and Warner Music Group Corp. (together, Labels). The Licensors and Labels (together, Moving Parties) sought approval of a partial settlement of the license rate proceeding before the Judges titled Determination of Royalty Rates and Terms for Making and Distributing Phonorecords (Phonorecords IV), Docket No. 21-CRB-0001-PR (2023-2027). The Moving Parties asserted that they had agreed to a settlement (Proposed Settlement 2) as to royalty rates and applicable regulatory terms relating to physical phonorecords, permanent downloads, ringtones, and music bundles presently addressed in 37 CFR part 385, subpart B (Subpart B Configurations). Proposed Settlement 2 would increase rates to 12 cents per track or 2.31 cents per minute of playing time or fraction thereof, whichever amount is larger, for physical phonorecords and permanent downloads for 2023 and include inflation-based adjustments for subsequent years of the rate period. Rates for ringtones would remain the same and the royalty rate for each element of a Music Bundle would be the rate required for physical phonorecords and permanent downloads or ringtones, as appropriate. Proposed Settlement 2 also addresses payment of late fees relating to Subpart B Configurations.

Previously, on May 25, 2021, the Judges received a Motion to Adopt Settlement of Statutory Royalty Rates and Terms for Subpart B Configurations from National Music Publishers' Association, Inc. and Nashville Songwriters Association International and Sony Music Entertainment, UMG Recordings, Inc., and Warner Music Group Corp. (Motion to Adopt Proposed Settlement 1). The Licensors and Labels sought approval of a partial settlement of the Phonorecords IV proceeding (Proposed Settlement 1). Proposed Settlement 1 would have maintained the current rates for Subpart B Configurations and also addressed payment of late fees relating to Subpart B Configurations.

On June 25, 2021, the Judges published Proposed Settlement 1 in the Federal Register and requested comments from the public. 86 FR 40793 (June 25, 2021). Following receipt of comments from both participants and non-participants to the Phonorecords IV proceeding, including non-participant songwriter groups and representatives who submitted comments in opposition, on March 30, 2022, the Judges published a notice that they were withdrawing the proposed settlement from consideration pursuant to section 801(b)(7). 87 FR 18342 (Mar. 30, 2022). The Judges' conclusion that Proposed Settlement 1 did not provide a reasonable basis for setting statutory rates and terms, and their withdrawal of Proposed Settlement 1 as a proposed rule, rested on a variety of interrelated factors regarding Proposed Settlement 1, chiefly that: (1) the subpart B mechanical rates that were first effective in 2006 would have remained unchanged; (2) potential conflicts of interest impacting the negotiations of Proposed Settlement 1; and (3) lack of transparency regarding a memorandum of understanding (MOU) that was contractually related to Proposed Settlement 1.

On April 4, 2022, the Judges received an Emergency Motion from Labels (Emergency Motion) seeking clarification regarding both litigation procedures going forward and any impact of the withdrawal of Proposed Settlement 1 beyond “participants that are not parties to the [settlement] agreement” 17 U.S.C. 801(b)(7)(A)(ii). With regard to the impact of withdrawal on various interested parties, the Labels urged that to the extent that the Judges might decline to adopt Proposed Settlement 1 as the basis for statutory terms and rates for anyone other than a participant, any such interpretation would raise a novel question of law that would need to be referred to the Register of Copyrights pursuant to section 802(f)(1)(B). The Labels moved for such a referral.

On April 28, 2022, the Judges referred a series of Novel Material Questions of Substantive Law to the Register of Copyrights pursuant to section 802(f)(1)(B) (Referred Novel Questions of Law).

On May 5, 2022, the Judges received a Motion from Labels seeking to withdraw their April 4, 2022 Emergency Motion (Withdrawal Motion). The Labels urged that in view of the Motion to Adopt Proposed Settlement 2, it was no longer necessary for the Judges to address the matters raised in the Emergency Motion. 1

On June 1, 2022, the Judges published Proposed Settlement 2 in the Federal Register and requested comments from the public. 87 FR 33093 (Jun. 1, 2022). Comments were due by July 1, 2022. The Judges received 18 comments from interested parties. 2 One participant, George Johnson (GEO) filed three comments opposing Proposed Settlement 2. 3

Pursuant to section 801(b)(7)(A) of the Copyright Act, the Judges have the authority to adopt settlements between some or all of the participants to a proceeding at any time during a proceeding. This section states that the Judges shall: (1) provide an opportunity to comment on the agreement to non-participants who would be bound by the terms, rates, or other determination set by the agreement; and (2) provide an opportunity to comment and to object to participants in the proceeding who would be bound by the terms, rates, or other determination set by the agreement. See section 801(b)(7)(A). The Judges may decline to adopt the agreement as a basis for statutory terms and rates for participants not party to the agreement if any participant objects and the Judges conclude that the agreement does not provide a reasonable basis for setting statutory terms or rates. Id.

Regardless of the comments of interested parties or participants, the Judges are not compelled to adopt a settlement to the extent it includes provisions that are inconsistent with the statutory license. See Review of Copyright Royalty Judges Determination, 74 FR 4537, 4540 (Jan. 26, 2009) (error for Judges to adopt settlement without threshold determination of legality); see also Review of Copyright Royalty Judges Determination, 73 FR 9143, 9146 (Feb. 19, 2008) (error not to set separate rates as required under sections 112 and 114 when parties' unopposed settlement combined rates in contravention of those statutory sections). 4

As the Register of Copyrights (Register) observed in the 2009 review of the Judges' decision, nothing in the statute precludes rejection of any portions of a settlement that would be contrary to provisions of the applicable license or otherwise contrary to the statute. 74 FR 4540. In the instance under review by the Register, the settlement agreement purported to alter the date(s) for payment of royalties granting licensees a longer period than section 115 provided. Id. at 4542. The Register also noted that nothing in the statute relating to adoption of settlements precludes the Judges from considering comments of non-participants “which argue that proposed [settlement] provisions are contrary to statutory law.” Id. at 4540.

The comments of interested parties in this proceeding overlapped in significant aspects and are summarized as follows.

The following commenters all express support for adoption of Proposed Settlement 2. Production Music Association (PMA); Associated Production Music (APM Music); Church Music Publishers Association (CMPA); The Association of Independent Music Publishers (AIMP); Artist Rights Alliance; Songwriters of North America (SONA) and Black Music Action Coalition (BMAC); The Ivors Academy of Music Creators; Abby North, Erin McAnally, Chelsea Crowell and Rosanne Cash; The Recording Academy; Music Publishers Association of the United States (MPA). The commenters express positive assessment of a 32% increase in rates under Proposed Settlement 2.

Upward Bound Music Company, Inc. is supportive of the proposed rates for 2023 but indicates a desire for specific adjustments for subsequent years of the rate period, as opposed to the inflation-based adjustments set forth in Proposed Settlement 2. Upward Bound Music Company, Inc. Comment at 1-2. 5

The American Association of Independent Music (A2IM) asserts that the Judges should reject the new settlement, and withdraw the new proposed rule, for the same reasons that they rejected the initial settlement. A2IM at 1, 4-6. A2IM alleges that “the new settlement `freezes' the original `penny rate' structure.” A2IM at 1. A2IM states that the Proposed Settlement 2 rates, which are subject to an annual consumer price index (“CPI”) adjustment to the penny rate in subsequent years, were set without considering whether the rate or CPI adjustments are appropriate in light of the current market realities. Id. at 1-4. A2IM suggests that the Judges should not only reject the settlement but also “convene a process to solicit input from all interested stakeholders.” Id. at 6-7. While A2IM acknowledges that it should have filed a petition to participate in the Phonorecords IV proceeding, it then goes on to urge a variety of procedural reforms, which appear to require statutory amendments. Id. at 7-8.

Gwendolyn Seale asserts that the Proposed Settlement 2 rate of 12 cents for 2023 is too low, based on the totality of the record and the Judges' analyses in their determination not to accept Proposed Settlement 1. Seale at 1. Ms. Seale concludes that Proposed Settlement 2 only partially addresses the inflation issue by limiting the inflation calculation to 2021. She maintains that it would be illogical to base the inaugural rate for this cycle on 2021 inflation calculations. She adds that, if the Judges were only to take into account the inflation issue in determining a reasonable rate for the inaugural 2023 year, such rate should reflect the 9.1 cent rate indexed to as close as possible to 2023, which is currently 13.4 cents. Id. at 2-3. Ms. Seale adds that compositions that are subject to controlled composition clauses in private contracts may continue be licensed at a rate of approximately 9 cents in 2023. Id. at 3-5.

Songwriters Guild of America, Inc. (SGA), Society of Composers & Lyricists (SCL), and Music Creators North America (MCNA), and the individuals Rick Carnes and Ashley Irwin (Independent Music Creators) comment in opposition, asking the Judges to modify or decline to approve Proposed Settlement 2. Independent Music Creators at 1. Independent Music Creators posit that the 9.1 cent rate, the basis for the adjusted 12 cent rate in Proposed Settlement 2, had already lost much of its initial 2006 value by 2021. They maintain that the 2021 value was already 12 cents by early 2021, and by the time of introduction of Proposed Settlement 2 had further risen almost another 10% to 13.11 cents. They offer that their own calculations do not take into account further discounting of royalty rates by privately entered-into controlled composition clauses. Id. at 3. They add that the 12 cent proposal would inadequately account for inflationary increases as measured by the CPI that occurred in 2021 and 2022. Id. at 3-4.

Independent Music Creators question whether Proposed Settlement 2 represents the result of an arms-length negotiation amongst the Moving Parties. They then go on to point out what they perceive as inadequate opportunities for non-participants to take part in settlement negotiations. Id. at 4-5. Independent Music Creators go on to allege that the MOUs remain murky and that they may be utilized to circumvent the authority, rate determinations and rulings of the CRB. Id. at 6. Independent Music Creators include a proposal for an alternative set of adjusted subpart B rates, which they urge the Judges to adopt. Id. at 5-6.

Eugene Lambchops Curry does not pointedly address Proposed Settlement 2 or Subpart B activity, but instead appears to propose a rate of $1.00 to $3.00 per stream. Curry at 1-2.

Christian L. Castle, an attorney commenting on his own behalf, addresses proposed changes to statutory processes for CRB proceedings, which he believes will require Congress to act. He opines on proposals for alternative rate structures for Subpart B configurations put forward by non-participants, and alternatives for administration of the section 115 license. Castle at 1-5. He states that the Subpart B resolution reflected in Proposed Settlement 2 should not be derailed because of these structural issues that lawmakers no doubt will need to resolve. Castle at 2.

Songwriters Helienne Lindvall, David Lowery, and Blake Morgan (Writers)  6 offer “a few minor repairs” to Proposed Settlement 2. They propose an alternative rate whereby calculation of the 2023 rate would be based on the 2006 CPI-U through the November 2022 CPI-U applied to the existing 9.1 cent rate, and corresponding adjustment methods for subsequent years of the rate period. Writers at 10-14. The Writers express criticism of the impact of controlled compositions clauses in the context of the section 115 licenses but take no position on the Judges' authority to reform controlled composition clauses or other provisions or practices in private contracts. Id. at 15-23.

The Writers express concern that there should be no undisclosed side deals as consideration for Proposed Settlement 2. They observe the Moving Parties' statement that the MOU at issue was executed a year ago, prior to the Moving Parties entering into renewed Proposed Settlement 2 negotiations and so was not consideration for any of the terms set forth in Proposed Settlement 2. They also note that the MOU apparently came into effect for the parties to it upon submission of Proposed Settlement 1 to the CRB, an event which occurred on May 25, 2021. The Writers note that because the MOU and the associated “late fee waiver” program has been disclosed to a degree both in and outside of the record for this Proceeding, the most recent MOU might not fall into the “undisclosed” category Id. at 24-25. The Writers also express concern with current processes for rate proceedings, which in their view exclude many voices that should have been heard in the rate-setting process and hopefully will be heard in future proceedings. Id. at 26-30.

Proceeding participant George Johnson (GEO) filed three documents opposing Proposed Settlement 2. 7 GEO asserts that the totality of the record, self-dealing conflicts of interest, vertical integration, and other MOU problems have not changed in Proposed Settlement 2, and therefore, GEO submits that the Judges should also deny Proposed Settlement 2 for the exact same reasons the Judges declined to adopt Proposed Settlement 1, except for the “static” rate issue. Id. at 8.

GEO states that he did not think that it was appropriate to accept Proposed Settlement 2 since it would not only be premature, citing open motions regarding Proposed Settlement 1, namely the Emergency Motion and the Withdrawal Motion, and the Referred Novel Questions of Law. Id. at 4-5. GEO takes issue with the Moving Parties' unwillingness to address desired terms in Proposed Settlement 2 and characterizes the initial 12 cent rate as a bare-minimum offer, which was made only because Moving Parties were forced to. Id. at 6.

GEO maintains that of the three primary reasons for the Judges' refusal to adopt Proposed Settlement 1, the Moving Parties have only addressed the static rate, and that the Moving Parties have not addressed issues with potential conflicts of interest impacting the negotiations for Proposed Settlement 2 or a lack of transparency regarding a memorandum of understanding (MOU) that was contractually related to Proposed Settlement 1. Id. at 16-21.

GEO goes on to allege various perceived conflicts of interests by NMPA counsel and executives. Id. at 26-31. GEO then asserts that the MOU is unreasonable. Id. at 32, 34-35. GEO maintains that the MOU is a quid pro quo, representing consideration that was paid to the major publishers by the major labels in return for a static 9.1 cent rate in Proposed Settlement 1. GEO offers that side deals, like the MOU, are not appropriate when everybody does not participate, and especially when these side deal MOU's are not disclosed. GEO also alleges that the MOU was formerly secret. Id. at 32. GEO adds his view that NMPA and NSAI do not represent American songwriters, as well as his view that they do not have a significant interest in this proceeding. Id. at 36. Finally, GEO takes issue with the role that controlled composition clauses, in private contracts, play in mechanical rates paid to songwriters. Id. at 38-39.

GEO's Additional GEO Opposition asserts that the initial 12 cent rate in Proposed Settlement 2 seems to be incorrectly calculated for retroactive inflation from 2006. He offers a calculation method that indicates a proper initial adjusted rate of approximately 14 cents. Additional GEO Opposition at 3-5. GEO then refers to a Clarification Motion that he submitted to the Judges on June 3, 2022, in which he appears to suggest that the proper rate for Subpart B may be arrived upon by retroactively indexing for inflation the rate of 2 cents per phonorecord that was set forth in the statute from 1909 to 1978. Id. at 6-8. GEO offers that the salary of the NMPA CEO should be instructive to the Judges' consideration of Proposed Settlement 2. Id. at 8-9. Finally, GEO addresses several matters that he advocates for in the proceeding, beyond consideration of Proposed Settlement 2. Id at 10-11.

Chapter 8 of the Copyright Act encourages parties to enter into settlement negotiations, ultimately the decision as to whether a contested settlement should be approved on motion is subject to the Judges' discretion, informed by the submissions of the Moving Parties and the commenters, and by the Judges' application of the law to the facts. Section 801(b)(7)(A) is clear that the Judges have the authority to adopt settlements between some or all of the participants to a proceeding at any time during a proceeding, so long the relevant parties are given an opportunity to comment and object. 17 U.S.C. 801(b)(7)(A). The Judges may decline to adopt the agreement as a basis for statutory terms and rates for participants not party to the agreement if any participant objects and the Judges conclude that the agreement does not provide a reasonable basis for setting statutory terms or rates. Id. at 801(b)(7)(A).

The Judges provided the requisite opportunity for comment and received GEO's opposition as well as the above-noted comments for and against Proposed Settlement 2. Having considered these submissions in their entirety, the Judges find no persuasive legal or economic arguments that convince the Judges to reject the proposed settlement reached voluntarily between the Moving Parties.

Only one participant in this proceeding, GEO, objected to the proposed settlement. As shown by the foregoing synopsis, however, GEO's objections did not come to the Judges in a vacuum. The statute requires publication of a settlement proposal and solicitation of comments from interested parties—parties who would be bound by the proposed rates and terms. Interested parties' comments are filed in the record of the proceeding and the Judges analyze those comments even though the Judges do not base rejection of a settlement solely on negative comments from non-participants. Non-participants who commented on Proposed Settlement 2 were not uniform in their views.

The Judges find no reason in the record to depart from their previous finding that Royalties from Subpart B Configurations are not inconsequential to the rightsholders. Subpart B Configurations are qualitatively different from the digital streaming configurations; consequently, the Judges can and do set separate rates for the Subpart B Configurations. Even though the physical and “permanent” download products are different in character from streaming uses, the Judges cannot and do not treat them with any less care and attention. 8 Subpart B Configurations, in particular vinyl recordings, are a significant source of income for section 115 rightsholders. The royalties they generate should not be treated as de minimis, or as a “throw away” negotiating chip to encourage better terms for streaming configurations.

From the perspective of some independent songwriters and copyright owners, the proposed rates might seem inadequate, although even the participant that opposed Proposed Settlement 2, GEO, characterizes the rates as within the bare minimum. The Judges recognize that several comments proposed alternative rates that they prefer, as well as alternative methods for addressing inflation adjustments. The Judges also recognize that some comments take issue with existing procedures for participation in rate proceedings before the Judges. However, Proposed Settlement 2 is what is before the Judges for consideration, not alternative rates or proposals for alternative procedures. 9 The fact is that the proposed rates and terms were negotiated on behalf of the vast majority of parties that historically have participated in Section 115 proceedings before the Judges. Those parties clearly concluded that the rates and terms were acceptable to both sides and, as addressed below, the negotiations occurred absent several of the aspects surrounding the Judges consideration of Proposed Settlement 1.

The Judges' analysis that led them to conclude that Proposed Settlement 1 did not provide a reasonable basis for setting statutory rates and terms—requiring them to withdraw Proposed Settlement 1 as a proposed rule—is distinguishable from their analysis of Proposed Settlement 2. The conclusion on Proposed Settlement 1 rested on a variety of interrelated factors, chiefly that: (1) the subpart B mechanical rates that were first effective in 2006 would have remained unchanged; (2) potential conflicts of interest impacting the negotiations of Proposed Settlement 1; and (3) lack of transparency regarding a memorandum of understanding (MOU) that was contractually related to Proposed Settlement 1.

In the current consideration of Proposed Settlement 2, the subpart B mechanical rates have been raised significantly from those that were first effective in 2006. In other words, the rates do not remain unchanged. They are not frozen, despite the fact that they retain a penny rate structure.

In the current consideration of Proposed Settlement 2, the MOU has been more prominently disclosed to the Judges and to the public. This is an important distinction from the Judges' consideration of Proposed Settlement 1, when the Judges found that they lacked complete knowledge of the implications of the MOU. 10

Furthermore, as accurately noted by Writers' comment, the MOU is not consideration for Proposed Settlement 2. The relationship of the MOU to Proposed Settlement 1 was fundamentally different. In the case of Proposed Settlement 1, the MOU was conditional and was not effective until the parties to the MOU (the Moving Parties, except NSAI) submitted a motion to adopt Proposed Settlement 1. In the case of Proposed Settlement 2, the MOU was independently effective, as of May 25, 2021.

In the current consideration of Proposed Settlement 2, the issue of conflicts of interest remains. As stated in the Withdrawal of Proposed Settlement 1, conflicts are inherent if not inevitable in the existing composition of the negotiating parties. No party opposing the present settlement has presented persuasive evidence of misconduct, including any arising from the issue of conflicts of interest. The corporate relationships involving the record labels on the one hand and the publishers on the other alone do not suffice as probative evidence of wrongdoing. As addressed above, the details and effects of the MOU are not undisclosed. The Judges therefore do not find that conflicts present sufficient reason to doubt the reasonableness of the settlement at issue as a basis for setting statutory rates and terms.

The Judges do not conclude that the Proposed Settlement 2 agreement, reached voluntarily between the Moving Parties, fails to provide a reasonable basis for setting statutory terms and rates for licensing nondramatic musical works to manufacture and distribute phonorecords, including permanent digital downloads and ringtones (Subpart B Configurations). The entirety of the record before the Judges, including the arguments GEO and other commenters presented, is insufficient for the Judges to determine that the agreed rates and terms are unreasonable.

In making this finding, the Judges are not indicating that the particular method of adjusting for inflation in the settlement is superior to methods offered by parties that voiced their opposition to Proposed Settlement 2, or that Proposed Settlement 2 represents an approach to inflation that the Judges would have chosen after a fully contested proceeding. In making this finding, the Judges observe that the Moving Parties clarified that Proposed Settlement 2 was arrived upon in part to avoid costly and uncertain litigation, which would involve a number of disputed issues. Their inflation adjustment is but one of several provisions, and thus is bound-up with the entirety of the parties' negotiated compromises. In this context, the Judges have no reason to find that the inflation adjustment is unreasonable or should otherwise justify a rejection of the settlement.

The Judges also reviewed the proposed settlement with regard to whether any portions of the settlement would be contrary to provisions of the applicable license or otherwise contrary to the statute, pursuant to the Register's prior rulings. See e.g., Review of Copyright Royalty Judges Determination, 74 FR 4537, 4540 (Jan 26, 2009). Upon such review, the Judges see no basis to conclude the settlement is contrary to law. Therefore, the Judges adopt the proposed regulations that codify the partial settlement. 11

The Judges adopt the proposed rates and terms industry-wide for Subpart B Configurations.

For the reasons set forth in the preamble, the Copyright Royalty Judges amend 37 CFR part 385 as set forth below.

On October 7, 2022, the Postal Service filed a notice with the PRC in Docket No. R2023-1 of mailing services price adjustments to be effective on January 22, 2023. On October 28, 2022, USPS® published a notification of proposed price changes in the Federal Register entitled “International Mailing Services: Proposed Price Changes” (87 FR 65181). The notification included price changes that the Postal Service would adopt for services covered by Mailing Standards of the United States Postal Service, International Mail Manual (IMM®) and publish in Notice 123, Price List, on Postal Explorer® at pe.usps.com. In addition, the notification included an update to country names throughout mailing standards, changing “Turkey” to “Turkiye,” which is the official short name for Republic of Turkiye. The Postal Service received no comments.

In PRC Order No. 6341 issued on November 28, 2022, in PRC Docket No. R2023-1, the PRC concluded that the prices in the Postal Service's notice in Docket No. R2023-1 may go into effect on January 22, 2023, and favorably reviewed the replacement of the country name of “Turkey” with “Turkiye.” The new prices will accordingly be posted in Notice 123, Price List, on Postal Explorer at pe.usps.com, and the changes to the IMM will accordingly be posted in a future update of the IMM on Postal Explorer at pe.usps.com.

The price for a single-piece postal will be $1.45 worldwide. The First-Class Mail International (FCMI) letter nonmachinable surcharge will increase to $0.40. The FCMI single-piece letter and flat prices will be as follows:

The Postal Service will increase prices for certain market dominant international extra services as noted:

• Certificate of Mailing service: Fees for certificate of mailing service for First-Class Mail International will increase as follows:

• Registered Mail® service: The price for international Registered Mail service for First-Class Mail International will increase to $19.05.

• Return Receipt service: The price for international return receipt service for First-Class Mail International will increase to $5.30

• Customs Clearance and Delivery Fee: The Customs Clearance and Delivery fee per dutiable item for Inbound Letter Post letters and flats will increase to $7.85.

• International Business Reply TM service (IBRS): The price for IBRS cards will increase to $2.00, and the price for IBRS envelopes (up to 2 ounces) will increase to $2.50.

New prices will be listed in the updated Notice 123, Price List.

I. General Information A. Does this action apply to me?

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Office of the Federal Register's e-CFR site at https://www.ecfr.gov/current/title-40.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2020-0568 in the subject line on the first page of your submission. All requests must be in writing and must be received by the Hearing Clerk on or before February 14, 2023. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2020-0568, by one of the following methods:

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

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

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

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

EPA issued a final rule, published in the Federal Register of November 12, 2019 (84 FR 60937) (FRL-10000-50), which announced that on its own initiative under FFDCA section 408, 21 U.S.C. 346a, it established a time-limited tolerance for the residues of propyzamide in or on cranberry at 1 ppm, with an expiration date of December 31, 2022. EPA established the tolerance because FFDCA section 408(l)(6) requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18. Such tolerances can be established without providing notice or period for public comment.

EPA received a request to extend the use of propyzamide on cranberry for this year's growing season due to heavy infestations in cranberry bogs of the parasitic weed, dodder, which is not adequately controlled with available alternatives. Without a suitable pesticide control, dodder infestations were expected to cause serious damage to the cranberry crops resulting in significant economic losses. After having reviewed the submission, EPA concurred that emergency conditions exist and authorized the use of propyzamide on cranberry for control of dodder in Massachusetts under FIFRA section 18.

EPA assessed the potential risks presented by residues of propyzamide in or on cranberry. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2) and decided that the necessary tolerance under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. The data and other relevant material have been evaluated and discussed in the final rule published in the Federal Register of November 12, 2019 (84 FR 60937) (FRL-10000-50). Based on that data and information considered, the Agency reaffirms that extension of the time-limited tolerance will continue to meet the requirements of FFDCA section 408(l)(6). Therefore, the time-limited tolerance is extended for an additional 3-year period. EPA will publish a document in the Federal Register to remove the revoked tolerance from the Code of Federal Regulations (CFR). Although this tolerance will expire and is revoked on December 31, 2025, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on cranberry after that date will not be unlawful, provided the pesticide was applied in a manner that was lawful under FIFRA and the application occurred prior to the revocation of the tolerance. EPA will take action to revoke this tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established any MRLs for propyzamide.

This action establishes a tolerance under FFDCA section 408(e) and 408(1)(6). The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established in accordance with FFDCA sections 408(e) and 408(1)(6), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

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

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

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

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:

I. General Information A. Does this action apply to me?

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Office of the Federal Register's e-CFR site at the https://www.ecfr.gov/current/title-40 .

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0624 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before February 14, 2023. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2021-0624, by one of the following methods:

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

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

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/dockets/where-send-comments-epa-dockets .

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

In the Federal Register of October 21, 2021 (86 FR 58239) (FRL-8792-04-OCSPP), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP #1F8930) by Bayer CropScience LP, 800 N Lindbergh Blvd., St. Louis, MO 63167. The petition requested to establish tolerances in 40 CFR part 180 for residues of the insecticide, tetraniliprole [1-(3-chloro-2-pyridinyl)- N -[4-cyano-2-methyl-6-[(methylamino)carbonyl]phenyl]-3-[[5-(trifluoromethyl)-2 H -tetrazol-2-yl]methyl]-1 H -pyrazole-5-carboxamide], in or on Crop Group 15; cereal grains, except rice at 0.01 parts per million (ppm); and Crop Group 16; forage, fodder, and straw of cereal grains group, except field corn, popcorn, and sweet corn at 0.1 ppm. That document referenced a summary of the petition, which is available in the docket, https://www.regulations.gov . No comments were received in response to the notice of filing.

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

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

In an effort to streamline its publications in the Federal Register , EPA is not reprinting sections that repeat what has been previously published for tolerance rulemaking of the same pesticide chemical. Where scientific information concerning a particular chemical remains unchanged, the content of those sections would not vary between tolerance rulemaking, and EPA considers referral back to those sections as sufficient to provide an explanation of the information EPA considered in making its safety determination for the new rulemaking.

On February 24, 2021, EPA published a tolerance rulemaking for tetraniliprole in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to tetraniliprole and established tolerances for residues of that pesticide chemical. EPA is incorporating previously published sections from the February 24, 2021, rulemaking as described further in this rulemaking, as they remain unchanged.

For a discussion of the Toxicological Profile of tetraniliprole, see Unit III.A. of the tetraniliprole tolerance rulemaking published in the Federal Register of February 24, 2021 (86 FR 11133) (FRL-10005-77).

Based on a thorough analysis of the toxicology database of tetraniliprole, the Agency has determined that a qualitative risk assessment is more appropriate for tetraniliprole than a quantitative risk assessment. For more details, please reference Unit III.B. of the February 24, 2021, rulemaking.

There is potential for exposure to tetraniliprole via food and feed based on the proposed uses. However, no adverse effects were observed in the submitted toxicological studies for tetraniliprole regardless of the route of exposure. Thus, no quantitative dietary exposure assessments are needed for EPA to conclude with reasonable certainty that dietary exposures to tetraniliprole do not pose a significant human health risk.

Drinking water and non-occupational exposures. There are no residues of toxicological concern expected in drinking water from the use of tetraniliprole. Thus, no drinking water exposure assessments are needed for the Agency to conclude with reasonable certainty that drinking water exposures to tetraniliprole do not pose a significant human health risk.

Tetraniliprole is registered for use on golf course turf and sports fields that could result in residential post-application exposures. However, no adverse effects were observed in the submitted toxicological studies for tetraniliprole regardless of the route of exposure; therefore, a quantitative residential post-application exposure assessment was not conducted. Thus, no residential exposure assessments are needed for the Agency to conclude with reasonable certainty that residential exposures to tetraniliprole do not pose a significant human health risk.

Cumulative exposure. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to tetraniliprole and any other substances. Tetraniliprole does not also appear to produce a toxic metabolite produced by other substances. For the purposes of this action, therefore, EPA has not assumed that tetraniliprole has a common mechanism of toxicity with other substances.

EPA has not identified any toxicological endpoints of concern associated with any threshold effects and conducted a qualitative assessment. That qualitative assessment showed no risk of concern for infants and children and does not use safety factors for assessing risk, and no additional safety factor is needed for assessing risk to infants and children. EPA has also evaluated the available data and concluded that there are no residual uncertainties concerning the potential risks to infants and children that would impact its conclusions about threshold effects.

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

No adverse effects were observed in the submitted toxicological studies at doses relevant to human health pesticide risk assessment for tetraniliprole regardless of the route of exposure. Effects observed in the data base ( e.g., decreased body weight) were both marginal, and only seen at doses not expected to occur daily or over an extended period.

Based on a lack of toxicity at exposure levels expected from approved application rates and an expectation that aggregate exposures to residues of tetraniliprole will not reach the levels required to cause any adverse effects, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to tetraniliprole residues. More detailed information on this action can be found in the document titled “Tetraniliprole: Human Health Risk Assessment for Registration for Uses on Cereal Grains, Except Rice, Crop Group 15; and Forage, Fodder, and Straw of Cereal Grains Group, except Field Corn, Popcorn, and Sweet Corn Crop Group 16” in docket ID EPA-HQ-OPP-2021-0624.

For a discussion of the available analytical enforcement method, see Unit IV.A. of the February 24, 2021, rulemaking.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4).

There are no Codex MRLs for tetraniliprole on the commodities covered in this document.

Therefore, tolerances are established for residues of tetraniliprole in or on grain, cereal, forage, fodder and straw, group 16, except field corn, popcorn and sweet corn at 0.1 ppm; and grain, cereal, group 15, except rice at 0.01 ppm. In addition, EPA is removing the tolerance for indirect or inadvertent residues of tetraniliprole in or on grain, cereal, forage, fodder and straw, group 16, except field corn, popcorn and sweet corn at 0.1 ppm, which is no longer needed with the changes described above.

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

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

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

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

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

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter 1 as follows:

This is a summary of the Commission's document, Order, FCC 22-93, in WC Docket Nos. 19-195, 11-10, released on Dec. 9, 2022. The full text of this document is available for public inspection and can be downloaded at https://www.fcc.gov/document/fcc-sunsets-form-477-broadband-data-collection.

People With Disabilities. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Government Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

Paperwork Reduction Act. This document does not contain new or modified information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, as the requirements adopted in this document are statutorily exempted from the requirements of the PRA. As a result, the document will not be submitted to OMB for review under Section 3507(d) of the PRA.

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

In this document, the Commission takes another step in its efforts to implement the Broadband Data Collection (BDC) and modernize the FCC Form 477 data program. Consistent with the Broadband Deployment Accuracy and Technological Availability Act (the Broadband DATA Act or the Act) and the Third Report and Order (85 FR 18124, April 7, 2021), the Commission sunsets the collection of broadband deployment data through FCC Form 477 effective upon publication of this document in the Federal Register .

1. Sunsetting the Collection of Broadband Deployment Data through Form 477. In this document, we sunset the collection of broadband deployment data through Form 477 effective upon publication of this document in the Federal Register . The Commission sought comment on sunsetting the Form 477 broadband deployment data collection in 2019 and again in 2020, and indicated that it expected the new broadband data collection being developed would largely displace the Form 477 process, particularly with respect to the collection of more precise deployment data.

2. Since the 2019 Order and Second Further Notice (84 FR 43705, Sept. 23, 2019) and the Second Report and Order and Third Further Notice (85 FR 50886, Aug. 18, 2020), we have made significant efforts to improve the quality of the broadband deployment data it collects. The Broadband DATA Act was enacted in 2020 and required the Commission to take steps to develop more granular broadband maps. The Commission has implemented the Act by adopting orders establishing the BDC and requiring broadband providers to file broadband availability data based on standardized and precise parameters, developing the Fabric as a common dataset of all locations where fixed broadband services can be installed, and establishing processes for the verification of data submitted by filers and for members of the public and other entities to challenge the accuracy of providers' data. To implement these processes, we have designed, developed, and launched the necessary information technology systems to support the BDC, including a new filing interface for BDC data, a BDC help center to provide technical assistance, and online video tutorials and webinars explaining, among other things, the BDC availability data and challenge submission processes. Based on this effort, the first broadband data collection under the BDC was launched on June 30, 2022 and, on September 1, 2022, the first filing window for the BDC closed. The Federal Communications Commission (FCC or Commission) subsequently published the new data on November 18, 2022. At the same time, broadband providers were required to submit Form 477 data as of June 30, 2022 in the Form 477 filing interface which was also due no later than September 1, 2022.

3. We find that it is now appropriate to sunset the collection of broadband deployment data through Form 477. We have made significant progress in implementing the BDC including the completion of the first BDC collection of broadband availability data and resulting publication of updated maps and data. We therefore now have a process in place for collecting more precise location-specific data from fixed broadband service providers and using more uniform standards for mobile broadband providers than the processes and standards used for the Form 477 process. Having to file concurrent Form 477 data in addition to their BDC data imposes significant burdens on providers, and we find it is unnecessary to have additional rounds of overlapping collections of BDC availability data and Form 477 deployment data. We disagree with those commenters who argue that a longer transition period is necessary to ensure that the BDC is well established and will provide useful data. Congress has provided funding and the Commission has implemented the complex technical systems necessary to support the BDC. In addition, we are confident, based on the detailed standards the Commission has established, and the newly released data, that we can now make available more granular and consistent data through the BDC and the new BDC maps. The BDC also incorporates verification and challenge processes that will help ensure that our broadband maps will improve over time based on input from various consumers, as well as state and Tribal governments and other stakeholders. We find that continuing the parallel collection of broadband deployment data through Form 477 based on parameters that we know lack sufficient detail is no longer necessary to support our objective of developing a more precise picture of broadband availability across the country. Sunsetting the collection of broadband deployment data through Form 477 will reduce burdens on providers by eliminating the need for concurrent filings in both the Form 477 and BDC systems. By removing the need to separately file deployment data in the Form 477 system, sunsetting the collection will also enable providers to devote more resources to the processes established to improve BDC data. In addition, sunsetting the collection of Form 477 deployment data will help ensure efficient use of Commission resources by allowing Commission staff to focus their analysis on the broadband deployment data submitted pursuant to the rules and processes required under the BDC. We also disagree with commenters who expressed support for maintaining the Form 477 census-based broadband deployment data collection. These comments were filed prior to the passage of the Broadband DATA Act, and we find that the standards and processes that we have adopted to implement the requirements of the Act will ensure that we collect and make available to the public more useful broadband availability data than the data previously available through Form 477.

4. Although we sunset the collection of Form 477 broadband deployment data, providers must continue to submit the subscription data required under Form 477. Going forward, however, the BDC system, rather than the Form 477 filing platform, will be used for the submission of both the subscription data collected for Form 477 and the availability data collected for the BDC. Therefore, beginning with data as of December 31, 2022, providers are required to submit the following data using the BDC filing system: fixed and mobile broadband and voice Form 477 subscription data, fixed and mobile BDC broadband availability data, BDC mobile voice availability data. The Form 477 filing system will no longer be used to collect new Form 477 submissions, and will remain open only for filers to make corrections to existing Form 477 filings for data as of June 30, 2022 and earlier. The Form 477 instructions will be updated to reflect the changes we adopt today.

5. Other Matters. We recognize that the Commission currently relies upon information from its Form 477 data collection in other contexts, including, among other things, to assess the deployment of broadband services and the state of competition in local telecommunications services. We therefore delegate certain additional responsibilities related to transitioning away from reliance on Form 477 deployment data for other uses and purposes within the Commission. We delegate authority and direct the Wireless Telecommunications Bureau (WTB) and the Office of Economics and Analytics (OEA) to provide instructions to mobile providers that participate in the Alaska Plan on how to submit coverage data after the sunsetting of the Form 477 broadband deployment data collection, including whether to use the BDC filing system for submission of data currently submitted using the Form 477 filing system that are specific to Alaska. We delegate authority and direct the Wireline Competition Bureau (WCB) to provide instructions to providers that participate in either the Bringing Puerto Rico Together Fund or the Connect USVI Fund on how to submit coverage data that are specific to Puerto Rico and the U.S. Virgin Islands to comply with the requirements of those funding mechanisms. For Business Data Services (BDS, also formerly known as Special Access services), we delegate to WCB and OEA the authority to conduct a rulemaking to determine the best way to implement the required competitive market tests using BDC instead of Form 477 data. Consistent with existing delegations, we delegate to WCB authority to develop broadband deployment obligations for Connect America Fund Broadband Loop Support recipients pursuant to § 54.308(a)(2), which currently specifies use of Form 477 data for certain calculations. This rulemaking authority is limited to the modification of existing rules and adoption of new rules as needed to facilitate the transition from the use of Form 477 data to the use of the BDC to conduct the triennial competitive market tests beginning with the 2026 triennial update. We also delegate additional responsibilities to WCB, WTB, the International Bureau (IB), and OEA as may be necessary related to the collection and use of Form 477 deployment data for other similar such uses and purposes within the Commission.

6. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the 2019 Order and Second Further Notice released in August 2019 and the Second Report and Order and Third Further Notice released in July 2020 in this proceeding. The Commission sought written public comment on the proposals in the Second Further Notice and Third Further Notice including comments on the IRFA. No comments were filed addressing the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

7. The document continues the Commission's efforts to implement the Broadband Data Collection (BDC) and modernize the FCC Form 477 (Form 477) data program. Consistent with the Broadband Deployment Accuracy and Technological Availability Act (Broadband DATA Act) and the Third Report and Order, the document sunsets the collection of broadband deployment data through Form 477. The document also delegates authority to various Commission staff to take other actions related to the collection and use of Form 477 data involving the Alaska Plan, the Bringing Together Puerto Rico Fund or Connect USVI Fund and for Business Data Services (BDS, formerly known as Special Access services).

8. The sunset of the collection of broadband data through Form 477 follows the Commission's inquiries in this proceeding on the conditions under which it would be appropriate to sunset this data collection and the appropriate timetable to implement the sunset, since the Commission expected the Form 477 process, at least with respect to the collection of granular deployment data to be displaced by the BDC. The Commission sought comment in the 2019 Order and Second Further Notice on discontinuing the broadband deployment data collection that is part of Form 477 at some point after the new collection has been established; the conditions and timetable for discontinuing the collection of broadband deployment data under Form 477 for both the mobile and fixed collections and whether there were other portions of the Form 477 collection that should be sunset.

9. In the Second Report and Order and Third Further Notice, the Commission created broadband availability reporting requirements for fixed and mobile broadband service providers and proposed to “continue the current census-based deployment data collection under Form 477 for at least one reporting cycle after the new granular reporting collection commences.” The Commission sought comment on “sunsetting the census-block broadband deployment reporting in the FCC Form 477 and the timing of doing so.” Thereafter, in the Third Report and Order, the Commission deferred the sunsetting of the Form 477 broadband deployment data collection to a later, to-be-determined date after further refining the availability data collection requirements, promulgating a framework for the challenge process requirements set out in the Broadband DATA Act and establishing the requirements for the collection and submission of verified availability data from governmental entities and other third parties.

10. On February 22, 2022, the Commission's Broadband Data Task Force (Task Force) and OEA announced the filing dates for the initial BDC availability data collection (coverage data as of June 30, 2022, must have been submitted no later than September 1, 2022). This notice of the initial filing date for the BDC did not alter the obligation of service providers to file the semiannual Form 477 filing. All service providers were still required to submit these data under Form 477. In light of the significant progress that the Commission has made in implementing the BDC and the conclusion of the first data collection into the BDC system, the Commission determined that it is now appropriate to sunset the collection of broadband deployment data through Form 477.

11. There were no comments filed that specifically addressed the proposed rules and policies presented in the IRFAs.

12. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file comments in response to the proposed rules in this proceeding.

13. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A “small-business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

14. Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the Small Business Administration's (SBA) Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States, which translates to 32.5 million businesses.

15. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2020, there were approximately 447,689 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.

16. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number, there were 36,931 general purpose governments (county, municipal, and town or township) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, we estimate that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

18. Wired Broadband internet Access Service Providers (Wired ISPs). Providers of wired broadband internet access service include various types of providers except dial-up internet access providers. Wireline service that terminates at an end user location or mobile device and enables the end user to receive information from and/or send information to the internet at information transfer rates exceeding 200 kilobits per second (kbps) in at least one direction is classified as a broadband connection under the Commission's rules. Wired broadband internet services fall in the Wired Telecommunications Carriers industry. The SBA small business size standard for this industry classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees.

19. Additionally, according to Commission data on internet access services as of December 31, 2018, nationwide there were approximately 2,700 providers of connections over 200 kbps in at least one direction using various wireline technologies. The Commission does not collect data on the number of employees for providers of these services, therefore, at this time we are not able to estimate the number of providers that would qualify as small under the SBA's small business size standard. However, in light of the general data on fixed technology service providers in the Commission's 2020 Communications Marketplace Report, we believe that the majority of wireline internet access service providers can be considered small entities.

20. Wireless Broadband internet Access Service Providers (Wireless ISPs or WISPs). Providers of wireless broadband internet access service include fixed and mobile wireless providers. The Commission defines a WISP as “[a] company that provides end-users with wireless access to the internet[.]” Wireless service that terminates at an end user location or mobile device and enables the end user to receive information from and/or send information to the internet at information transfer rates exceeding 200 kilobits per second (kbps) in at least one direction is classified as a broadband connection under the Commission's rules. Neither the SBA nor the Commission have developed a size standard specifically applicable to Wireless Broadband internet Access Service Providers. The closest applicable industry with an SBA small business size standard is Wireless Telecommunications Carriers (except Satellite). The SBA size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms in this industry that operated for the entire year. Of that number, 2,837 firms employed fewer than 250 employees.

21. Additionally, according to Commission data on internet access services as of December 31, 2018, nationwide there were approximately 1,209 fixed wireless and 71 mobile wireless providers of connections over 200 kbps in at least one direction. The Commission does not collect data on the number of employees for providers of these services, therefore, at this time we are not able to estimate the number of providers that would qualify as small under the SBA's small business size standard. However, based on data in the Commission's 2020 Communications Marketplace Report on the small number of large mobile wireless nationwide and regional facilities-based providers, the dozens of small regional facilities-based providers and the number of wireless mobile virtual network providers in general, as well as on terrestrial fixed wireless broadband providers in general, we believe that the majority of wireless internet access service providers can be considered small entities.

22. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry. Wired Telecommunications Carriers are also referred to as wireline carriers or fixed local service providers.

23. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 5,183 providers that reported they were engaged in the provision of fixed local services. Of these providers, the Commission estimates that 4,737 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

24. Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. Providers of these services include both incumbent and competitive local exchange service providers. Wired Telecommunications Carriers is the closest industry with a SBA small business size standard. Wired Telecommunications Carriers are also referred to as wireline carriers or fixed local service providers. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 5,183 providers that reported they were fixed local exchange service providers. Of these providers, the Commission estimates that 4,737 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

25. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the Commission nor the SBA have developed a small business size standard specifically for incumbent local exchange carriers. Wired Telecommunications Carriers is the closest industry with a SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms in this industry that operated for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 1,227 providers that reported they were incumbent local exchange service providers. Of these providers, the Commission estimates that 929 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, the Commission estimates that the majority of incumbent local exchange carriers can be considered small entities.

26. Competitive Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. Providers of these services include several types of competitive local exchange service providers. Wired Telecommunications Carriers is the closest industry with a SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 3,956 providers that reported they were competitive local exchange service providers. Of these providers, the Commission estimates that 3,808 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

27. Interexchange Carriers (IXCs). Neither the Commission nor the SBA have developed a small business size standard specifically for Interexchange Carriers. Wired Telecommunications Carriers is the closest industry with a SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 151 providers that reported they were engaged in the provision of interexchange services. Of these providers, the Commission estimates that 131 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, the Commission estimates that the majority of providers in this industry can be considered small entities.

28. Operator Service Providers (OSPs). Neither the Commission nor the SBA has developed a small business size standard specifically for operator service providers. The closest applicable industry with a SBA small business size standard is Wired Telecommunications Carriers. The SBA small business size standard classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 3,054 firms in this industry that operated for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 32 providers that reported they were engaged in the provision of operator services. Of these providers, the Commission estimates that all 32 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, all of these providers can be considered small entities.

29. Other Toll Carriers. Neither the Commission nor the SBA has developed a definition for small businesses specifically applicable to Other Toll Carriers. This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. Wired Telecommunications Carriers is the closest industry with a SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms in this industry that operated for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 115 providers that reported they were engaged in the provision of other toll services. Of these providers, the Commission estimates that 113 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

30. Internet Service Providers (Non-Broadband). Internet access service providers using client-supplied telecommunications connections ( e.g., dial-up ISPs) as well as VoIP service providers using client-supplied telecommunications connections fall in the industry classification of All Other Telecommunications. The SBA small business size standard for this industry classifies firms with annual receipts of $35 million or less as small. For this industry, U.S. Census Bureau data for 2017 show that there were 1,079 firms in this industry that operated for the entire year. Of those firms, 1,039 had revenue of less than $25 million. Consequently, under the SBA size standard a majority of firms in this industry can be considered small.

31. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The SBA size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms in this industry that operated for the entire year. Of that number, 2,837 firms employed fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 797 providers that reported they were engaged in the provision of wireless services. Of these providers, the Commission estimates that 715 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

32. Wireless Communications Services. Wireless Communications Services (WCS) can be used for a variety of fixed, mobile, radiolocation, and digital audio broadcasting satellite services. Wireless spectrum is made available and licensed for the provision of wireless communications services in several frequency bands subject to Part 27 of the Commission's rules. Wireless Telecommunications Carriers ( except Satellite) is the closest industry with a SBA small business size standard applicable to these services. The SBA small business size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small.

33. The Commission's small business size standards with respect to WCS involve eligibility for bidding credits and installment payments in the auction of licenses for the various frequency bands included in WCS. When bidding credits are adopted for the auction of licenses in WCS frequency bands, such credits may be available to several types of small businesses based average gross revenues (small, very small and entrepreneur) pursuant to the competitive bidding rules adopted in conjunction with the requirements for the auction and/or as identified in the designated entities section in Part 27 of the Commission's rules for the specific WCS frequency bands.

34. In frequency bands where licenses were subject to auction, the Commission notes that as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Further, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. Additionally, since the Commission does not collect data on the number of employees for licensees providing these services, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard.

35. 1670-1675 MHz Services. These wireless communications services can be used for fixed and mobile uses, except aeronautical mobile. Wireless Telecommunications Carriers (except Satellite) is the closest industry with a SBA small business size standard applicable to these services. The SBA size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small.

36. According to Commission data as of November 2021, there were three active licenses in this service. The Commission's small business size standards with respect to 1670-1675 MHz Services involve eligibility for bidding credits and installment payments in the auction of licenses for these services. For licenses in the 1670-1675 MHz service band, a “small business” is defined as an entity that, together with its affiliates and controlling interests, has average gross revenues not exceeding $40 million for the preceding three years, and a “very small business” is defined as an entity that, together with its affiliates and controlling interests, has had average annual gross revenues not exceeding $15 million for the preceding three years. The 1670-1675 MHz service band auction's winning bidder did not claim small business status.

37. In frequency bands where licenses were subject to auction, the Commission notes that as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Further, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. Additionally, since the Commission does not collect data on the number of employees for licensees providing these services, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard.

38. Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. The closest applicable industry with a SBA small business size standard is Wireless Telecommunications Carriers (except Satellite). The size standard for this industry under SBA rules is that a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 407 providers that reported they were engaged in the provision of cellular, personal communications services, and specialized mobile radio services. Of these providers, the Commission estimates that 333 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

39. Broadband Personal Communications Service. The broadband personal communications services (PCS) spectrum encompasses services in the 1850-1910 and 1930-1990 MHz bands. The closest industry with a SBA small business size standard applicable to these services is Wireless Telecommunications Carriers (except Satellite). The SBA small business size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small.

40. Based on Commission data as of November 2021, there were approximately 5,060 active licenses in the Broadband PCS service. The Commission's small business size standards with respect to Broadband PCS involve eligibility for bidding credits and installment payments in the auction of licenses for these services. In auctions for these licenses, the Commission defined “small business” as an entity that, together with its affiliates and controlling interests, has average gross revenues not exceeding $40 million for the preceding three years, and a “very small business” as an entity that, together with its affiliates and controlling interests, has had average annual gross revenues not exceeding $15 million for the preceding three years. Winning bidders claiming small business credits won Broadband PCS licenses in C, D, E, and F Blocks.

41. In frequency bands where licenses were subject to auction, the Commission notes that as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Further, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. Additionally, since the Commission does not collect data on the number of employees for licensees providing these, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard.

42. Specialized Mobile Radio Licenses. Special Mobile Radio (SMR) licenses allow licensees to provide land mobile communications services (other than radiolocation services) in the 800 MHz and 900 MHz spectrum bands on a commercial basis including but not limited to services used for voice and data communications, paging, and facsimile services, to individuals, Federal Government entities, and other entities licensed under Part 90 of the Commission's rules. Wireless Telecommunications Carriers (except Satellite) is the closest industry with a SBA small business size standard applicable to these services. The SBA size standard for this industry classifies a business as small if it has 1,500 or fewer employees. For this industry, U.S. Census Bureau data for 2017 show that there were 2,893 firms in this industry that operated for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 119 providers that reported they were of SMR (dispatch) providers. Of this number, the Commission estimates that all 119 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, these 119 SMR licensees can be considered small entities.

43. Based on Commission data as of December 2021, there were 3,924 active SMR licenses. However, since the Commission does not collect data on the number of employees for licensees providing SMR services, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard. Nevertheless, for purposes of this analysis the Commission estimates that the majority of SMR licensees can be considered small entities using the SBA's small business size standard.

44. Lower 700 MHz Band Licenses. The lower 700 MHz band encompasses spectrum in the 698-746 MHz frequency bands. Permissible operations in these bands include flexible fixed, mobile, and broadcast uses, including mobile and other digital new broadcast operation; fixed and mobile wireless commercial services (including FDD- and TDD-based services); as well as fixed and mobile wireless uses for private, internal radio needs, two-way interactive, cellular, and mobile television broadcasting services. Wireless Telecommunications Carriers ( except Satellite) is the closest industry with a SBA small business size standard applicable to licenses providing services in these bands. The SBA small business size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small.

45. According to Commission data as of December 2021, there were approximately 2,824 active Lower 700 MHz Band licenses. The Commission's small business size standards with respect to Lower 700 MHz Band licensees involve eligibility for bidding credits and installment payments in the auction of licenses. For auctions of Lower 700 MHz Band licenses the Commission adopted criteria for three groups of small businesses. A very small business was defined as an entity that, together with its affiliates and controlling interests, has average annual gross revenues not exceeding $15 million for the preceding three years, a small business was defined as an entity that, together with its affiliates and controlling interests, has average gross revenues not exceeding $40 million for the preceding three years, and an entrepreneur was defined as an entity that, together with its affiliates and controlling interests, has average gross revenues not exceeding $3 million for the preceding three years. In auctions for Lower 700 MHz Band licenses seventy-two winning bidders claiming a small business classification won 329 licenses, twenty-six winning bidders claiming a small business classification won 214 licenses, and three winning bidders claiming a small business classification won all five auctioned licenses.

46. In frequency bands where licenses were subject to auction, the Commission notes that as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Further, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. Additionally, since the Commission does not collect data on the number of employees for licensees providing these services, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard.

47. Upper 700 MHz Band Licenses. The upper 700 MHz band encompasses spectrum in the 746-806 MHz bands. Upper 700 MHz D Block licenses are nationwide licenses associated with the 758-763 MHz and 788-793 MHz bands. Permissible operations in these bands include flexible fixed, mobile, and broadcast uses, including mobile and other digital new broadcast operation; fixed and mobile wireless commercial services (including FDD- and TDD-based services); as well as fixed and mobile wireless uses for private, internal radio needs, two-way interactive, cellular, and mobile television broadcasting services. Wireless Telecommunications Carriers ( except Satellite) is the closest industry with a SBA small business size standard applicable to licenses providing services in these bands. The SBA small business size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of that number, 2,837 firms employed fewer than 250 employees. Thus, under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small.

48. According to Commission data as of December 2021, there were approximately 152 active Upper 700 MHz Band licenses. The Commission's small business size standards with respect to Upper 700 MHz Band licensees involve eligibility for bidding credits and installment payments in the auction of licenses. For the auction of these licenses, the Commission defined a “small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years, and a “very small business” an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. Pursuant to these definitions, three winning bidders claiming very small business status won five of the twelve available licenses.

49. 700 MHz Guard Band Licensees. The 700 MHz Guard Band encompasses spectrum in 746-747/776-777 MHz and 762-764/792-794 MHz frequency bands. Wireless Telecommunications Carriers ( except Satellite) is the closest industry with a SBA small business size standard applicable to licenses providing services in these bands. The SBA small business size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small.

50. According to Commission data as of December 2021, there were approximately 224 active 700 MHz Guard Band licenses. The Commission's small business size standards with respect to 700 MHz Guard Band licensees involve eligibility for bidding credits and installment payments in the auction of licenses. For the auction of these licenses, the Commission defined a “small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years, and a “very small business” an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. Pursuant to these definitions, five winning bidders claiming one of the small business status classifications won 26 licenses, and one winning bidder claiming small business won two licenses. None of the winning bidders claiming a small business status classification in these 700 MHz Guard Band license auctions had an active license as of December 2021.

51. In frequency bands where licenses were subject to auction, the Commission notes that as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Further, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. Additionally, since the Commission does not collect data on the number of employees for licensees providing these services, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard.

52. Air-Ground Radiotelephone Service. Air-Ground Radiotelephone Service is a wireless service in which licensees are authorized to offer and provide radio telecommunications service for hire to subscribers in aircraft. A licensee may provide any type of air-ground service ( i.e., voice telephony, broadband internet, data, etc.) to aircraft of any type, and serve any or all aviation markets (commercial, government, and general). A licensee must provide service to aircraft and may not provide ancillary land mobile or fixed services in the 800 MHz air-ground spectrum.

53. The closest industry with a SBA small business size standard applicable to these services is Wireless Telecommunications Carriers ( except Satellite). The SBA small business size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small.

54. Based on Commission data as of December 2021, there were approximately four licensees with 110 active licenses in the Air-Ground Radiotelephone Service. The Commission's small business size standards with respect to Air-Ground Radiotelephone Service involve eligibility for bidding credits and installment payments in the auction of licenses. For purposes of auctions, the Commission defined “small business” as an entity that, together with its affiliates and controlling interests, has average gross revenues not exceeding $40 million for the preceding three years, and a “very small business” as an entity that, together with its affiliates and controlling interests, has had average annual gross revenues not exceeding $15 million for the preceding three years. In the auction of Air-Ground Radiotelephone Service licenses in the 800 MHz band, neither of the two winning bidders claimed small business status.

55. In frequency bands where licenses were subject to auction, the Commission notes that as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Further, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. Additionally, the Commission does not collect data on the number of employees for licensees providing these services therefore, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard.

56. Advanced Wireless Services (AWS)—(1710-1755 MHz and 2110-2155 MHz bands (AWS-1); 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz bands (AWS-2); 2155-2175 MHz band (AWS-3); 2000-2020 MHz and 2180-2200 MHz (AWS-4) ). Spectrum is made available and licensed in these bands for the provision of various wireless communications services. Wireless Telecommunications Carriers ( except Satellite) is the closest industry with a SBA small business size standard applicable to these services. The SBA small business size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus, under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small.

57. According to Commission data as December 2021, there were approximately 4,472 active AWS licenses. The Commission's small business size standards with respect to AWS involve eligibility for bidding credits and installment payments in the auction of licenses for these services. For the auction of AWS licenses, the Commission defined a “small business” as an entity with average annual gross revenues for the preceding three years not exceeding $40 million, and a “very small business” as an entity with average annual gross revenues for the preceding three years not exceeding $15 million. Pursuant to these definitions, 57 winning bidders claiming status as small or very small businesses won 215 of 1,087 licenses. In the most recent auction of AWS licenses 15 of 37 bidders qualifying for status as small or very small businesses won licenses.

58. In frequency bands where licenses were subject to auction, the Commission notes that as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Further, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. Additionally, since the Commission does not collect data on the number of employees for licensees providing these services, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard

59. 3650-3700 MHz Band. Wireless broadband service licensing in the 3650-3700 MHz band provides for nationwide, non-exclusive licensing of terrestrial operations, utilizing contention-based technologies, in the 3650 MHz band ( i.e., 3650-3700 MHz). Licensees are permitted to provide services on a non-common carrier and/or on a common carrier basis. Wireless broadband services in the 3650-3700 MHz band fall in the Wireless Telecommunications Carriers ( except Satellite) industry with a SBA small business size standard that classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small.

60. The Commission has not developed a small business size standard applicable to 3650-3700 MHz band licensees. Based on the licenses that have been granted, however, we estimate that the majority of licensees in this service are small internet Access Service Providers (ISPs). As of November 2021, Commission data shows that there were 902 active licenses in the 3650-3700 MHz band. However, since the Commission does not collect data on the number of employees for licensees providing these services, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard.

61. Fixed Microwave Services. Fixed microwave services include common carrier, private-operational fixed, and broadcast auxiliary radio services. They also include the Upper Microwave Flexible Use Service (UMFUS), Millimeter Wave Service (70/80/90 GHz), Local Multipoint Distribution Service (LMDS), the Digital Electronic Message Service (DEMS), 24 GHz Service, Multiple Address Systems (MAS), and Multichannel Video Distribution and Data Service (MVDDS), where in some bands licensees can choose between common carrier and non-common carrier status. Wireless Telecommunications Carriers ( except Satellite) is the closest industry with a SBA small business size standard applicable to these services. The SBA small size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus under the SBA size standard, the Commission estimates that a majority of fixed microwave service licensees can be considered small.

62. The Commission's small business size standards with respect to fixed microwave services involve eligibility for bidding credits and installment payments in the auction of licenses for the various frequency bands included in fixed microwave services. When bidding credits are adopted for the auction of licenses in fixed microwave services frequency bands, such credits may be available to several types of small businesses based average gross revenues (small, very small and entrepreneur) pursuant to the competitive bidding rules adopted in conjunction with the requirements for the auction and/or as identified in Part 101 of the Commission's rules for the specific fixed microwave services frequency bands.

63. In frequency bands where licenses were subject to auction, the Commission notes that as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Further, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. Additionally, since the Commission does not collect data on the number of employees for licensees providing these services, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard.

64. Broadband Radio Service and Educational Broadband Service. Broadband Radio Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel Multipoint Distribution Service (MMDS) systems, and “wireless cable,” transmit video programming to subscribers and provide two-way high speed data operations using the microwave frequencies of the Broadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as the Instructional Television Fixed Service (ITFS)). Wireless cable operators that use spectrum in the BRS often supplemented with leased channels from the EBS, provide a competitive alternative to wired cable and other multichannel video programming distributors. Wireless cable programming to subscribers resembles cable television, but instead of coaxial cable, wireless cable uses microwave channels.

65. In light of the use of wireless frequencies by BRS and EBS services, the closest industry with a SBA small business size standard applicable to these services is Wireless Telecommunications Carriers ( except Satellite). The SBA small business size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small.

66. According to Commission data as December 2021, there were approximately 5,869 active BRS and EBS licenses. The Commission's small business size standards with respect to BRS involves eligibility for bidding credits and installment payments in the auction of licenses for these services. For the auction of BRS licenses, the Commission adopted criteria for three groups of small businesses. A very small business is an entity that, together with its affiliates and controlling interests, has average annual gross revenues exceed $3 million and did not exceed $15 million for the preceding three years, a small business is an entity that, together with its affiliates and controlling interests, has average gross revenues exceed $15 million and did not exceed $40 million for the preceding three years, and an entrepreneur is an entity that, together with its affiliates and controlling interests, has average gross revenues not exceeding $3 million for the preceding three years. Of the ten winning bidders for BRS licenses, two bidders claiming the small business status won 4 licenses, one bidder claiming the very small business status won three licenses and two bidders claiming entrepreneur status won six licenses. One of the winning bidders claiming a small business status classification in the BRS license auction has an active licenses as of December 2021.

67. The Commission's small business size standards for EBS define a small business as an entity that, together with its affiliates, its controlling interests and the affiliates of its controlling interests, has average gross revenues that are not more than $55 million for the preceding five (5) years, and a very small business is an entity that, together with its affiliates, its controlling interests and the affiliates of its controlling interests, has average gross revenues that are not more than $20 million for the preceding five (5) years. In frequency bands where licenses were subject to auction, the Commission notes that as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Further, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. Additionally, since the Commission does not collect data on the number of employees for licensees providing these services, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard.

68. Satellite Telecommunications. This industry comprises firms “primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” Satellite telecommunications service providers include satellite and earth station operators. The SBA small business size standard for this industry classifies a business with $38.5 million or less in annual receipts as small. U.S. Census Bureau data for 2017 show that 275 firms in this industry operated for the entire year. Of this number, 242 firms had revenue of less than $25 million. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 71 providers that reported they were engaged in the provision of satellite telecommunications services. Of these providers, the Commission estimates that approximately 48 providers have 1,500 or fewer employees. Consequently using the SBA's small business size standard, a little more than of these providers can be considered small entities.

69. All Other Telecommunications. This industry is comprised of establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Providers of internet services ( e.g. dial-up ISPs) or voice over internet protocol (VoIP) services, via client-supplied telecommunications connections are also included in this industry. The SBA small business size standard for this industry classifies firms with annual receipts of $35 million or less as small. U.S. Census Bureau data for 2017 show that there were 1,079 firms in this industry that operated for the entire year. Of those firms, 1,039 had revenue of less than $25 million. Based on this data, the Commission estimates that the majority of “All Other Telecommunications” firms can be considered small.

70. Because section 706 of the Act requires us to monitor the deployment of broadband using any technology, we anticipate that some broadband service providers may not provide telephone service. Accordingly, we describe below other types of firms that may provide broadband services, including cable companies, MDS providers, and utilities, among others.

71. Cable and Other Subscription Programming. The U.S. Census Bureau defines this industry as establishments primarily engaged in operating studios and facilities for the broadcasting of programs on a subscription or fee basis. The broadcast programming is typically narrowcast in nature ( e.g., limited format, such as news, sports, education, or youth-oriented). These establishments produce programming in their own facilities or acquire programming from external sources. The programming material is usually delivered to a third party, such as cable systems or direct-to-home satellite systems, for transmission to viewers. The SBA small business size standard for this industry classifies firms with annual receipts less than $41.5 million as small. Based on U.S. Census Bureau data for 2017, 378 firms operated in this industry during that year. Of that number, 149 firms operated with revenue of less than $25 million a year and 44 firms operated with revenue of $25 million or more. Based on this data, the Commission estimates that a majority of firms in this industry are small.

72. Cable Companies and Systems (Rate Regulation ). The Commission has developed its own small business size standard for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide. Based on industry data, there are about 420 cable companies in the U.S. Of these, only seven have more than 400,000 subscribers. In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Based on industry data, there are about 4,139 cable systems (headends) in the U.S. Of these, about 639 have more than 15,000 subscribers. Accordingly, the Commission estimates that the majority of cable companies and cable systems are small.

73. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, contains a size standard for a “small cable operator,” which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” For purposes of the Telecom Act Standard, the Commission determined that a cable system operator that serves fewer than 677,000 subscribers, either directly or through affiliates, will meet the definition of a small cable operator based on the cable subscriber count established in a 2001 Public Notice. Based on industry data, only six cable system operators have more than 677,000 subscribers. Accordingly, the Commission estimates that the majority of cable system operators are small under this size standard. We note however, that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million. Therefore, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

74. The document will reduce reporting, recordkeeping, and other compliance requirements on small entities. The document sunsets the collection of broadband deployment data through Form 477. Fixed and mobile broadband service providers who previously filed broadband deployment data through Form 477 will no longer be required to do so. Instead, providers will file their broadband availability data in the BDC system. By sunsetting the collection of broadband deployment data through Form 477 the document reduces the reporting requirements for small providers and does not require small providers to hire professionals to comply or impose any compliance costs. Providers will be required to report broadband deployment data only in the BDC filing system rather than in both the BDC system and through Form 477.

75. Although the documentsunsets the collection of broadband deployment data, small and other providers are still required to submit the subscription data required under Form 477. Additionally, because our decision to sunset the collection of broadband deployment data through Form 477 may impact other areas where the Commission currently uses information from the Form 477 data collection we have directed the Wireline Communications Bureau (WCB), the Wireless Telecommunications Bureau (WTB), the International Bureau, and the Office of Economic Analysis (OEA) to address matters related to the collection and use of Form 477 deployment data for other uses and purposes within the Commission.

76. Small and other mobile providers that participate in the Alaska Plan will be informed by WTB and OEA how to submit coverage data after the sunsetting of the Form 477 broadband deployment data collection, including whether to use the BDC filing system for submission of data currently submitted using the Form 477 filing system that are specific to Alaska. WCB will provide small and other providers that participate in either the Bringing Puerto Rico Together Fund or the Connect USVI Fund instructions on how to submit coverage data that are specific to Puerto Rico and the U.S. Virgin Islands to comply with the requirements of those funding mechanisms.

77. The RFA requires an agency to provide, “a description of the steps the agency has taken to minimize the significant economic impact on small entities. . .including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.”

78. The Commission considered the comments in the record regarding the sunset of the Form 477 broadband deployment data collection and is mindful of the time and resources that small entities incur to file broadband data with the Commission. The document concludes that sunsetting the Form 477 deployment data collection at this time will reduce burdens on small and other providers, by streamlining broadband reporting requirements so that providers have to file broadband deployment only in the BDC system rather than in both the BDC system and through Form 477.

79. In reaching our decision, we specifically considered sunsetting the collection of broadband deployment data through Form 477, (1) once a new collection was implemented; (2) after a period of transition following a Commission determination that there are sufficient resources to implement a new collection and that the new broadband data collection produced reliable data; (3) one year after the BDC commenced; (4) after one reporting cycle of the BDC; and (5) after the BDC requirements were in place. We also considered comments advocating maintaining the Form 477 census-block broadband deployment data collection going forward. The Commission rejected proposals and alternative approaches suggested by commenters that would have required a longer transition period during which broadband providers would have been subject to the dual collection of deployment data. Limiting the duration of the transition period will reduce the burden and economic impact on small providers that would have been associated with maintaining the dual reporting obligation for a longer period of time.

80. The Commission will send a copy of the document, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the document, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the document and Supplemental FRFA (or summaries thereof) will also be published in the Federal Register .

81. Accordingly, it is ordered that, pursuant to sections 1-4, 201, 301, 303, 319, 332, 642, and 1702 of the Communications Act of 1934, as amended, and section 706 of the Telecommunications Act of 1996, 47 U.S.C. 151-154, 201, 301, 303, 319, 332, 642, 646, 1302, 1702, this Order is adopted .

82. It is further ordered that the Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, shall send a copy of the Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

83. It is further ordered that the Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Order, including the Final Regulatory Flexibility Analysis to the Chief Counsel for Advocacy of the Small Business Administration.

84. It is further ordered that the Order shall be effective upon publication in the Federal Register .

This is a summary of the Commission's Report and Order, FCC 22-86, CG Docket No. 22-2, adopted on November 14, 2022, and released on November 17, 2022. The full text of this document is available online at https://www.fcc.gov/document/fcc-requires-broadband-providers-display-labels-help-consumers . To request this document in accessible formats for people with disabilities ( e.g., Braille, large print, electronic files, audio format) or to request reasonable accommodations ( e.g., accessible format documents, sign language interpreters, CART), send an email to fcc504@fcc.gov or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice).

This document contains new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new information collection requirements contained in this proceeding. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees, and the Commission received no comment.

The Commission sent a copy of document FCC 22-86 to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

1. In this final rule, the Commission adopts a new broadband label to help consumers comparison shop among broadband services, thereby implementing section 60504 of the Infrastructure Act. See Infrastructure Investment and Jobs Act, Public Law 117-58, 135 Stat. 429, section 60504(a) (2021). Specifically, the Commission requires ISPs to display, at the point of sale, a broadband consumer label containing critical information about the provider's service offerings, including information about pricing, introductory rates, data allowances, performance metrics, and whether the provider participates in the ACP. The Commission requires that ISPs display the label for each stand-alone broadband internet access service they currently offer for purchase, and that the label link to other important information such as network management practices, privacy policies, and other educational materials.

2. Consistent with the Infrastructure Act, the label the Commission adopts for fixed and mobile broadband internet access service is similar to the two labels the Commission approved in 2016, with certain modifications. As discussed in the Empowering Broadband Consumers Through Transparency Notice of Proposed Rulemaking (NPRM), 87 FR 6827 (Feb. 7, 2022) ( NPRM ), access to clear, easy-to-understand, and accurate information about broadband internet access services helps consumers make informed choices and is central to a well-functioning marketplace that encourages competition, innovation, low prices, and high-quality service. Commenters agree that a label associated with stand-alone broadband service will provide important information to consumers when selecting a provider and plan.

3. In addition to label content, the Commission adopts requirements for the label's format and display location to ensure consumers can make side-by-side comparisons of various service offerings from an individual provider or from alternative providers—something essential for making informed decisions. In this way, the label resembles the well-known nutrition labels that consumers have come to rely on when shopping for food products. The Commission also requires that the label be accessible for people with disabilities and for non-English speakers. Finally, the Commission enables third parties to easily analyze information and help consumers with their purchase decisions by requiring providers to make the label content available in a machine-readable format.

4. Below is the label template the Commission requires ISPs to display at the point of sale. This label establishes the formatting and content of all requirements adopted in this final rule. The red text in the label template is explanatory and simply instructs providers as to the content they must provide in the label. The Commission expects that, once the provider completes the required fields, it will post, or otherwise provide, the entire label in black text. Accessible materials, including the label template contained in this final rule, will be available on the Commission's website.

This interim rule revises the DFARS to implement section 848 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2022 (Pub. L. 117-81). Section 848 prohibits the use of funds to knowingly procure any products mined, produced, or manufactured wholly or in part by forced labor from the Xinjiang Uyghur Autonomous Region of the People's Republic of China (XUAR) and requires a certification from offerors for contracts with DoD stating the offeror has made a good faith effort to determine that forced labor from XUAR was not or will not be used in the performance of a contract.

This interim rule makes the following changes to the DFARS to implement section 848 of the NDAA for FY 2022:

The interim rule adds a new section for definitions in DFARS 225.7022-2. “Forced labor” is defined as all work or service which is exacted from any person under the menace of any penalty for its nonperformance and for which the worker does not offer themselves voluntarily.

In addition, the rule defines “person” as—

a. A natural person, corporation, company, business association, partnership, society, trust, or any other nongovernmental entity, organization, or group; or

b. Any successor, subunit, parent entity, or subsidiary of, or any entity under common ownership or control with, any entity described in item a.

Lastly, “XUAR” is added and is defined as the Xinjiang Uyghur Autonomous Region of the People's Republic of China.

At DFARS 225.7022-3, the statutory prohibition is added that DoD shall not award a contract utilizing funds appropriated or otherwise made available for fiscal year 2022 to an entity that uses forced labor from XUAR.

The statute requires a certification from offerors for all DoD contracts stating the offeror has made a good faith effort to determine that forced labor from XUAR was not or will not be used in the performance of such contract. A solicitation provision is created to facilitate receipt of the good faith certification from offerors. A contract clause is created to provide the associated terms and conditions for compliance, as they will apply to the contract. The solicitation provision and contract clause are added to the list at DFARS 212.301 of clauses and provisions that apply to the acquisition of commercial items.

A new solicitation provision at 252.225-7059, Prohibition on Certain Procurements From the Xinjiang Uyghur Autonomous Region-Certification, is added for use in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial services, commercial products, or commercially available off-the-shelf (COTS) items. The provision is used in solicitations that contain the clause at 252.225-7060, Prohibition on Certain Procurements from the Xinjiang Uyghur Autonomous Region. This provision will be used to determine whether the offeror is subject to the statutory prohibition and therefore is prohibited from consideration for contract award. If the offeror responds that it does not certify that it has made a good faith effort to determine that forced labor from XUAR was not or will not be used in the performance of a contract resulting from the solicitation, then the offeror is ineligible for contract award.

A new contract clause at 252.225-7060, Prohibition on Certain Procurements from the Xinjiang Uyghur Autonomous Region, is added for use in solicitations and contracts, utilizing funds appropriated or otherwise made available for fiscal year 2022, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial services, commercial products, or COTS items. The new clause prohibits contractors from providing, throughout the period of performance of the contract, any products mined, produced, or manufactured wholly or in part by forced labor from XUAR or from an entity that has used labor from within or transferred from XUAR as part of any forced labor programs.

The section 848 prohibition will not apply to—

• Purchases under the micro-purchase threshold made using the Governmentwide commercial purchase card; or

• Purchases using the SF 44, Purchase Order-Invoice-Voucher, in accordance with 213.306.

This DFARS rule implements section 848 of the NDAA for FY 2022. Section 848 prohibits the use of funds to knowingly procure any products mined, produced, or manufactured wholly or in part by forced labor from XUAR and requires a certification from offerors for DoD contracts.

This rule creates a new solicitation provision at DFARS 252.225-7059, Prohibition on Certain Procurements from the Xinjiang Uyghur Autonomous Region-Certification, and a new contract clause at DFARS 252.225-7060, Prohibition on Certain Procurements from the Xinjiang Uyghur Autonomous Region. The clause at DFARS 252.225-7060 is prescribed for use in solicitations and contracts utilizing funds appropriated or otherwise made available for fiscal year 2022, including solicitations using FAR part 12 procedures for the acquisition of commercial services and commercial products including COTS items. DoD has made the determination to apply the rule to contracts valued at or below the simplified acquisition threshold (SAT) and to the acquisition of commercial services and commercial products, including COTS items, as defined at FAR 2.101.

The statute at 41 U.S.C. 1905 governs the applicability of laws to contracts or subcontracts in amounts not greater than the SAT. It is intended to limit the applicability of laws to such contracts or subcontracts. The statute at 41 U.S.C. 1905 provides that if a provision of law contains criminal or civil penalties, or if the Federal Acquisition Regulatory Council makes a written determination that it is not in the best interest of the Federal Government to exempt contracts or subcontracts at or below the SAT, the law will apply to them. The Principal Director, Defense Pricing and Contracting (DPC), is the appropriate authority to make comparable determinations for regulations to be published in the DFARS, which is part of the FAR system of regulations.

The statute at 10 U.S.C. 2375 (redesignated 10 U.S.C. 3452) exempts contracts and subcontracts for the acquisition of commercial services and commercial products (including COTS items) from provisions of law enacted after October 13, 1994, that, as determined by the Under Secretary of Defense for Acquisition and Sustainment (USD (A&S)), set forth policies, procedures, requirements, or restrictions for the acquisition of property or services unless—

The provision of law—

Section 848 is silent on applicability to contracts and subcontracts in amounts at or below the SAT or for the acquisition of commercial products and commercial services. Also, the statute does not provide for civil or criminal penalties. Therefore, it does not apply to the acquisition of contracts or subcontracts in amounts not greater than the SAT or the acquisition of commercial services and commercial products (including COTS items), unless the Principal Director, Defense Pricing and Contracting, makes a written determination as provided for in 41 U.S.C. 1905 and 10 U.S.C. 2375 (redesignated 10 U.S.C. 3452).

The solicitation provision and contract clause provided are necessary to implement the statutory restrictions and to protect the contracting officer from violating the prohibition on the use of funds to knowingly procure any products mined, produced, or manufactured wholly or in part by forced labor from XUAR or from an entity that has used labor from within or transferred from XUAR as part of a forced labor program.

If the solicitation provision and contract clause are not included in solicitations and contracts valued at or below the SAT and for the acquisition of commercial services and commercial products (including COTS items) it becomes more likely that a contracting officer could procure a prohibited product, thereby undermining the overarching public policy purpose of the law. Subjecting FAR part 13 simplified acquisitions to section 848 will not impact simplified acquisitions conducted without issuance of a purchase order through the use of the Governmentwide commercial purchase card or the SF 44, as these acquisitions are excepted from section 848.

An exception for contracts for the acquisition of commercial services and commercial products, including COTS items, would exclude some high dollar value contracts, thereby undermining the overarching public policy purpose of the law. However, the prohibition in section 848 covers only “knowingly” procuring covered items. It would be unreasonable to expect the parties to a procurement through the use of the Governmentwide commercial purchase card or the SF 44 to know whether the commercial products or commercial services being procured are mined, produced, or manufactured wholly or in part by forced labor from XUAR or from an entity that has used labor from within or transferred from XUAR as part of a forced labor program.

Based on the findings above, it would not be in the best interest of the United States to exempt acquisitions not greater than the SAT (except for purchases made regardless of dollar value through the use of the Governmentwide commercial purchase card or the SF 44) and acquisitions of commercial services or commercial products, including COTS items, from the applicability of section 848 of the NDAA for FY 2022.

Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

As required by the Congressional Review Act (5 U.S.C. 801-808) before an interim or final rule takes effect, DoD will submit a copy of the interim or final rule with the form, Submission of Federal Rules under the Congressional Review Act, to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the Federal Register . The Office of Information and Regulatory Affairs has determined that this rule is not a major rule as defined by 5 U.S.C. 804.

This interim rule may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. An initial regulatory flexibility analysis has been performed and is summarized as follows:

DoD is amending the DFARS to implement section 848 of the National Defense Authorization act (NDAA) for Fiscal Year (FY) 2022 (Pub. L. 117-81). Section 848 prohibits the use of funds to knowingly procure any products mined, produced, or manufactured wholly or in part by forced labor from the Xinjiang Uyghur Autonomous Region in the People's Republic of China (XUAR) or from an entity that has used labor from within or transferred from XUAR as part of any forced labor programs. In addition, section 848 requires a certification from offerors for DoD contracts stating the offeror has made a good faith effort to determine that forced labor from XUAR was not or will not be used in the performance of a contract.

The objective of the rule is to implement the prohibition and certification requirement of section 848. The rule includes a new solicitation provision at DFARS 252.225-7059, Prohibition on Certain Procurements from the Xinjiang Uyghur Autonomous Region—Certification, which includes a certification requirement, and a new contract clause at DFARS 252.225-7060, Prohibition on Certain Procurements from the Xinjiang Uyghur Autonomous Region, which prohibits contractors from providing any products mined, produced, or manufactured wholly or in part by forced labor from XUAR or from an entity that has used labor from within or transferred from XUAR as part of any forced labor programs. The legal basis for this rule is section 848 of the NDAA for FY 2022.

DoD reviewed data obtained from the Federal Procurement Data System (FPDS) for FY 2020, 2021, and 2022, for DoD purchases of supplies or end products valued above the micro-purchase threshold, including commercial products and COTS items. DoD made an average of 374,735 awards to 16,122 unique entities, of which 154,515 awards were made to 12,187 unique small entities. In addition to the small entities that received awards, DoD estimates there were approximately 621,718 unsuccessful offerors. Note that the unsuccessful offerors are not unique entities; in other words, a single entity may have been counted more than once as an unsuccessful offeror. The rule will apply to successful offerors that receive awards and unsuccessful offerors.

The solicitation provision at DFARS 252.225-7059, Prohibition on Certain Procurements from the Xinjiang Uyghur Autonomous Region—Certification, requires offerors to certify that the offeror has made a good faith effort to determine that forced labor from XUAR was not or will not be used in the performance of a contract resulting from the solicitation containing the provision. Small entities that sell products to DoD will be subject to this requirement when they submit offers for DoD contracts. The rule does not require any other reporting or recordkeeping.

The rule does not duplicate, overlap, or conflict with any other Federal rules.

The section 848 prohibition will not apply to purchases under the micro-purchase threshold made using the Governmentwide commercial purchase card or to purchases using the SF 44, Purchase Order-Invoice-Voucher (see DFARS 213.306). DoD was unable to identify any other alternatives that would reduce burden on small businesses and still meet the objectives of the statute.

DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C 610 (DFARS Case 2022-D008), in correspondence.

This rule contains information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). This information collection requirement has been assigned OMB Control Number 0750-0007, entitled Prohibition on Certain Procurements from the Xinjiang Uyghur Autonomous Region—Certification.

A determination has been made under the authority of the Secretary of Defense that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment (41 U.S.C. 1707(d)). This action is necessary because section 848 of the NDAA for FY 2022 adds the prohibition that requires the offeror to provide a certification that it made a good faith effort to determine that forced labor from XUAR was not or will not be used in the performance of a contract. DoD recognizes that Congress considers this an important public policy to avoid further genocide (see the Joint Explanatory Statement to Accompany the National Defense Authorization Act for Fiscal Year 2022).

Consequently, this interim rule is necessary to ensure implementation of the new statutory certification requirements in section 848. The law containing section 848 was enacted in December 2021, and section 848 is currently in effect.

However, pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), DoD will consider public comments received in response to this interim rule in the formation of the final rule.

Therefore, 48 CFR parts 212, 225, and 252 are amended as follows:

I. Background

DoD published a proposed rule in the Federal Register at 87 FR 11002 on February 28, 2022, to implement the United States-Mexico-Canada Agreement Implementation Act. A correction notification was published in the Federal Register at 87 FR 12923 on March 8, 2022, to correct the comment period due date from May 27, 2022, to April 29, 2022. There were no public comments received in response to the proposed rule.

No changes are made to the final rule as a result of public comments.

The proposed rule reflected redesignation of the paragraph numbering structure for several definitions in paragraph (a) for DFARS clauses 252.225-7036, Buy American—Free Trade Agreements—Balance of Payments Program, and 252.225-7045, Balance of Payments Program—Construction Material Under Trade Agreements. Those paragraph redesignations are no longer required in this final rule, since those redesignations were accomplished with the publication of the final rule for DFARS Case 2019-D045, Maximizing the Use of American-Made Goods, Products, and Materials, in the Federal Register at 87 FR 37440 on June 23, 2022. In addition, minor editorial changes are made to this rule.

This rule amends the contract clauses at DFARS 252.225-7013, Duty-Free Entry; DFARS 252.225-7017, Photovoltaic Devices; DFARS 252.225-7021, Trade Agreements (Basic and Alternate II); DFARS 252.225-7036, Buy American—Free Trade Agreements—Balance of Payments Program (Basic and Alternates I (with the prescription), II, III (with the prescription), IV, and V); DFARS 252.225-7045, Balance of Payments Program—Construction Material Under Trade Agreements (Basic and Alternates I, II, and III); and the solicitation provisions at DFARS 252.225-7018, Photovoltaic Devices—Certificate; DFARS 252.225-7035, Buy American—Free Trade Agreements—Balance of Payments Program Certificate (Basic and Alternate I, II, III (with the prescription)). This rule does not impose any new requirements on contracts at or below the simplified acquisition threshold, for commercial products including commercially available off-the-shelf items, or for commercial services.

The rule implements the United States-Mexico-Canada Agreement Implementation Act. The United States-Mexico-Canada Agreement (USMCA) supersedes the North American Free Trade Agreement (NAFTA). Canada is still a designated country under the World Trade Organization Government Procurement Agreement; however, Canada is no longer a Free Trade Agreement country, because chapter 13 (Government Procurement) of the USMCA applies only to the United States and Mexico. References to Canada as a Free Trade Agreement country in the DFARS are deleted, including the $25,000 threshold. Canadian end products will still receive nondiscriminatory treatment with respect to the Buy American statute but starting at $183,000 rather than $25,000. Impacts are anticipated to be negligible, since Canada remains a World Trade Organization Government Procurement Agreement (WTO GPA) designated country, and a qualifying country, with a threshold of $183,000. The Mexico thresholds remain unchanged.

Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

As required by the Congressional Review Act (5 U.S.C. 801-808) before an interim or final rule takes effect, DoD will submit a copy of the interim or final rule with the form, Submission of Federal Rules under the Congressional Review Act, to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the Federal Register . The Office of Information and Regulatory Affairs has determined that this rule is not a major rule as defined by 5 U.S.C. 804.

A final regulatory flexibility analysis (FRFA) has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows:

This final rule is necessary to revise the Defense Federal Acquisition Regulation Supplement (DFARS) to implement the United States-Mexico-Canada Agreement Implementation Act (Pub. L. 116-113). On November 30, 2018, the Governments of the United States, Mexico, and Canada (the parties) signed the protocol replacing NAFTA with the United States-Mexico-Canada Agreement (USMCA). On December 10, 2019, the parties signed the protocol of amendment to the USMCA. On January 29, 2020, the President signed into law the United States-Mexico-Canada Agreement Implementation Act, through which Congress approved the USMCA. On July 1, 2020, the USMCA entered into effect.

The objective of this rule is to implement the USMCA Implementation Act. The rule includes changes in the DFARS to conform to chapter 13 of the USMCA, which sets forth certain obligations between the United States and Mexico with respect to government procurement of goods and services, as specified in Annex 13-A of the USMCA. Chapter 13 of the USMCA applies only to Mexico and the United States and does not cover Canada.

Although Canada is still a designated country under the WTO GPA, Canada is no longer a Free Trade Agreement country, because chapter 13 of the USMCA applies only to the United States and Mexico. Therefore, references to Canada as a Free Trade Agreement country in the DFARS are deleted, including the $25,000 threshold. Canadian end products will still receive nondiscriminatory treatment with respect to the Buy American statute but starting at $183,000 rather than the threshold of $25,000. Mexico thresholds remain unchanged.

The rule removes all references to the NAFTA, replacing them with the new USMCA language, including statutory references. All references to Canadian end products or Canadian photovoltaic devices also are removed.

No public comments were received in response to the initial regulatory flexibility analysis.

This rule is not expected to have a significant economic impact on small entities. Although the rule removes Canada as a Free Trade Agreement designated country and deletes the associated $25,000 threshold, replacing it with the free trade agreement minimum threshold of $92,319, Canada remains a WTO GPA designated country, and a qualifying country, with a threshold of $183,000. The Mexico thresholds remain unchanged. Contracting officers will be required to use the revised provisions and clauses as prescribed that reflect the USMCA requirements.

Based on fiscal year 2021 data from the Federal Procurement Data System, 24,808 unique small entities were awarded DoD contracts. Impacts to small businesses are anticipated to be negligible, since Canada remains a WTO GPA designated country, and a qualifying country, with a threshold of $183,000, and the Mexico thresholds remain unchanged.

This final rule does not include any new reporting, recordkeeping, or other compliance requirements for small businesses. The rule does not impose any additional information collection requirements.

There are no known significant alternative approaches to the rule that would meet the requirements of the USMCA Implementation Act.

The rule affects information collection requirements in the provisions at DFARS 252.225-7018, Photovoltaic Devices—Certificate, and 252.225-7035, Buy American—Free Trade Agreements—Balance of Payments Program Certificate; and the clauses at DFARS 252.225-7013, Duty-Free Entry, and 252.225-7021, Alternate II, Trade Agreements, currently approved under OMB Control Number 0704-0229 in accordance with the Paperwork Reduction Act (44 U.S.C. chapter 35). The changes to the DFARS do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 0704-0229, DFARS Part 225, Foreign Acquisition, and Related Clauses at 252.225; DD Form 2139.

Therefore, 48 CFR parts 212, 225, and 252 are amended as follows:

I. Background

DoD is amending the DFARS to implement Title XVIII of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2021 (Pub. L. 116-283), Transfer and Reorganization of Defense Acquisition Statutes, which revised numerous statutory references used throughout the DFARS. The rule also implements Title XVII of the NDAA for FY 2022 (Pub. L. 117-81), Technical Amendments Related to the Transfer and Reorganization of Defense Acquisition Statutes, which provided technical, conforming, and clerical amendments related to Title XVIII of the NDAA for FY 2021. The rule also provides the new location of notes that were moved by the Office of the Law Revision Counsel of the United States House of Representatives as a result of the reorganization.

The rule makes several minor corrections to the DFARS apart from the changes related to the reorganization. These corrections include updates to organizational office names, statutory titles, the addition of codification citations for authorization acts, and the removal of citations for statutes that have been repealed.

The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is 41 U.S.C. 1707. Subsection (a)(1) of the statute requires that a procurement policy, regulation, procedure, or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because DoD is not issuing new regulation; rather, this rule only updates statutory references in the existing regulations and has no significant cost or administrative impact on contractors or offerors.

This rule does not create any new solicitation provisions or contract clauses. It does not change the applicability of any existing provisions or clauses included in solicitations or contracts valued at or below the simplified acquisition threshold or for commercial services or commercial products, including commercially available off-the-shelf items.

Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

As required by the Congressional Review Act (5 U.S.C. 801-808) before an interim or final rule takes effect, DoD will submit a copy of the final rule with the form, Submission of Federal Rules under the Congressional Review Act, to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the Federal Register . The Office of Information and Regulatory Affairs has determined that this rule is not a major rule as defined by 5 U.S.C. 804.

The Regulatory Flexibility Act does not apply to this rule, because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require publication for public comment.

The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply; however, the changes to these DFARS clauses do not impose additional information collection requirements to the paperwork burden previously approved under the following OMB Control Numbers:

• 0704-0187, Information Collection in Support of the DoD Acquisition Process (Various Miscellaneous Requirements).

• 0704-0332, Defense Federal Acquisition Regulation Supplement (DFARS) Appendix I.

• 0704-0369, DFARS Subpart 227.71, Rights in Technical Data, and Subpart 227.72, Rights in Computer Software and Computer Software Documentation, and related provisions and clauses.

• 0704-0397, Defense Federal Acquisition Regulation Supplement (DFARS) Part 243, Contract Modifications and Related Clause at DFARS 252.243-7002.

• 0704-0533, Defense Federal Acquisition Regulation Supplement (DFARS) Part 249, Termination of Contracts, and a Related Clause at DFARS 252.249-7002, Notification of Anticipated Contract Termination or Reduction.

• 0704-0574, Defense Federal Acquisition Regulation Supplement (DFARS) Part 215: Only One Offer and Related Clauses at 252.215.

Therefore, 48 CFR parts 201, 202, 203, 204, 205, 206, 207, 208, 209, 212, 213, 215, 216, 217, 219, 222, 223, 225, 226, 227, 231, 232, 233, 234, 235, 236, 237, 239, 242, 243, 244, 250, 252, and Appendix I to Chapter 2 are amended as follows:

The MMPA Import Provisions

The MMPA, 16 U.S.C. 1371 et seq., states that the Secretary of the Treasury shall ban the importation of commercial fish or products from fish which have been caught with commercial fishing technology which results in the incidental kill or incidental serious injury of ocean mammals in excess of United States standards. For purposes of applying this import restriction, the Secretary of Commerce shall insist on reasonable proof from the government of any nation from which fish or fish products will be exported to the United States of the effects on ocean mammals of the commercial fishing technology in use for such fish or fish products exported from such nation to the United States.

In August 2016, NMFS published a final rule (81 FR 54390; August 15, 2016) implementing the fish and fish product import provisions in section 101(a)(2) of the MMPA. This rule established conditions for evaluating a harvesting nation's regulatory programs to address incidental and intentional mortality and serious injury of marine mammals in fisheries operated by nations that export fish and fish products to the United States. Under the final rule, fish or fish products may not be imported into the United States from commercial fishing operations that result in the incidental mortality or serious injury of marine mammals in excess of U.S. standards (16 U.S.C. 1371(a)(2)). NMFS published a List of Foreign Fisheries (LOFF) on October 8, 2020 (85 FR 63527), to classify fisheries subject to the import requirements.

The final rule established a five-year exemption period, through December 31, 2021, before imports would be subject to any trade restrictions (see 50 CFR 216.24(h)(2)(ii)). In recognition of the diversion of foreign government resources away from fishery research and regulatory programs in response to the COVID pandemic, NMFS issued an interim final rule to extend the exemption period through December 31, 2022 (85 FR 69515, November 3, 2020). Subsequently, NMFS issued a final rule to extend further the exemption period through December 31, 2023 (87 FR 63955, October 21, 2022) due to the large number of foreign nation applications for comparability findings received and the need to evaluate regulatory programs fairly and equitably for more than 2500 foreign fisheries.

In the 2016 final rule, NMFS stated that it may consider emergency rulemaking during the exemption period to ban imports of fish and fish products from a foreign fishery having or likely to have an immediate and significant adverse impact on a marine mammal stock. In addition, pursuant to the MMPA Import Provisions rule, nothing prevents a nation from implementing a bycatch reduction regulatory program and seeking a comparability finding during the exemption period. The GNZ requested that NMFS consider comparability findings for certain fisheries prior to the end of the exemption period.

In February 2019, Sea Shepherd Legal, Sea Shepherd New Zealand Ltd., and Sea Shepherd Conservation Society petitioned NMFS for an emergency rulemaking to ban the import of fish caught in gillnet and trawl fisheries in the Māui dolphin's range because the GNZ 2012 regulations allegedly were insufficient to protect the Māui dolphin. NMFS rejected the petition (84 FR 32853, July 10, 2019) on the basis that the GNZ had in place an existing regulatory program to reduce Māui dolphin bycatch and was proposing a revised regulatory program which, when fully implemented, would likely further reduce risk to Māui dolphin.

On May 21, 2020, Sea Shepherd New Zealand and Sea Shepherd Conservation Society (collectively, “Plaintiffs”) initiated a lawsuit in the Court of International Trade (CIT) challenging NMFS' denial of its petition. On June 24, 2020, the GNZ announced its final fisheries measures for reducing bycatch of Māui dolphins (effective October 1, 2020) and its final Threat Management Plan (TMP). On July 1, 2020, Plaintiffs moved for a preliminary injunction to ban imports of seafood into the United States from New Zealand's set-net and trawl fisheries. Before responding to Plaintiffs' motion for a preliminary injunction, NMFS moved for a voluntary remand in order to reconsider the Plaintiffs' petition for emergency rulemaking under the MMPA due to GNZ's final fisheries measures and final TMP.

On July 15, 2020, the GNZ, acting through the Ministry for Primary Industries, requested that NMFS perform a comparability assessment of the TMP and its regulatory program as it relates to Māui dolphins. On August 13, 2020, the CIT granted NMFS the voluntary remand. On August 27, 2020, NMFS received the Plaintiffs' supplemental petition, which both maintained the grounds for action outlined in the original petition and included new information on sightings of Māui dolphins, the final TMP and the 2020 LOFF.

NMFS rejected the supplemental petition to ban the importation of commercial fish or products from fish harvested in a manner that results in the incidental kill or incidental serious injury of Māui dolphins in excess of U.S. standards. Further, NMFS issued comparability findings for the West Coast North Island multi-species set-net and trawl fisheries because the GNZ has implemented a regulatory program governing the bycatch of Māui dolphin that is comparable in effectiveness to U.S. standards.

Plaintiffs subsequently filed a Renewed Motion for Preliminary Injunction on December 11, 2020, seeking a preliminary injunction requiring the U.S. Government to ban the import of fish or fish products from any New Zealand commercial fishery that uses set-nets or trawl gear within the Māui dolphin's range.

On November 28, 2022, the CIT granted the plaintiffs' request for a preliminary injunction requiring the U.S. government, pending final adjudication of the merits, to ban immediately the importation of certain fish and fish products from New Zealand commercial fisheries that use set-nets or trawls within the Māui dolphin's range. Under the CIT order, all (1) snapper; (2) tarakihi; (3) spotted dogfish; (4) trevally; (5) warehou; (6) hoki; (7) barracouta; (8) mullet; and (9) gurnard derived from the fisheries of the West Coast North Island are subject to the ban. The court also ordered NMFS to submit notice of the ban for publication in the Federal Register within 15 days. By granting this preliminary injunction and requiring the imposition of import restrictions and a comparability finding determination for the export fisheries operating on the West Coast North Island within the Māui dolphin's range, the judge's order effectively removes the currently operative exemption under 50 CFR 216.24 (h)(2)(ii) for these fisheries.

The CIT order stipulates that specific fish products deriving from West Coast North Island multi-species set-net and trawl fisheries are prohibited from entry into the U.S market. Several of these fish species are not imported into the United States under Harmonized Tariff Schedule (HTS) codes that are specific to the type of fish. Instead, these fish are imported under non-specific fish and marine fish codes. Consequently, the list of affected HTS codes has been determined by NMFS and is available at: https://www.fisheries.noaa.gov/foreign/marine-mammal-protection/seafood-import-restrictions. The list includes those non-specific HTS codes necessary to encompass the possible codes used for products subject to the trade restriction.

However, NMFS acknowledges that fish species harvested in the West Coast North Island fisheries are also harvested elsewhere in New Zealand and harvested with other fishing gear not subject to the court-ordered embargo. Consequently, further steps are needed to enforce an import restriction focused on fish harvested in the affected fisheries and included in the court order while not affecting trade in products not subject to embargo. NMFS must collect additional information from importers during the entry process to identify products not subject to an import restriction. To that end, NMFS has identified tariff codes for the fish and fish products that require Certification of Admissibility to validate that the fish and fish products from New Zealand being offered for entry into the United States do not originate from West Coast North Island set-net and trawl fisheries.

On December 5, 2022, U.S. Customs and Border Protection (CBP) transmitted a user-defined rule to inspectors at affected ports of entry with instructions for port inspectors to examine entry filings from New Zealand under the specified tariff codes. Fish or fish products imported to the United States from New Zealand under the designated HTS codes that are not subject to the import prohibition must be accompanied by Certification of Admissibility. The Certification of Admissibility form and accompanying instructions for its use in entry filing are available at https://www.fisheries.noaa.gov/foreign/marine-mammal-protection/seafood-import-restrictions. The Certification of Admissibility is an information collection subject to the requirements of the Paperwork Reduction Act and has been approved by the Office of Management and Budget under control number 0648-0651.

Absent Certification of Admissibility, entry filings under the specified tariff codes will be rejected. Implementing this process will require notice to the trade community (importers and customs brokers) and CBP inspectors. NMFS is working with CBP to use its internal and external messaging systems for such notification. Also, consultations with the GNZ are needed to identify those officials authorized to certify shipments bound for the United States. NMFS initiated these steps prior to the effective date of the embargo.

Importers are advised to determine if other NMFS program requirements ( e.g., Tuna Tracking and Verification Program, Seafood Import Monitoring Program) or other agency requirements ( e.g., U.S. Fish and Wildlife Service, State Department, Food and Drug Administration) have Automated Commercial Environment (ACE) data reporting requirements applicable to the designated HTS codes subject to certification under the MMPA import provisions. In such cases, the other reporting requirements still pertain in addition to the Certification of Admissibility requirements imposed to implement the CIT order.

Until such time as the CIT (or other court of competent jurisdiction) lifts the preliminary injunction, trade restrictions on the fish products harvested by set-nets and trawls operating off the West Coast North Island within the Māui dolphin's range will continue and Certification of Admissibility will be required for the HTS codes designated under this notice.

Authority for Action

NMFS and the Pacific Fishery Management Council (Council) manage the groundfish fisheries in the exclusive economic zone seaward of California, Oregon, and Washington under the Pacific Coast Groundfish Fishery Management Plan (FMP). The Council prepared the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA; 16 U.S.C. 1801 et seq. ). Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 660.

This purpose of this final rule is to revise regulations that may be unnecessarily constraining, in order to provide increased operational flexibility in the Pacific whiting fishery and increase the Mothership (MS) sector's ability to utilize its Pacific whiting allocation, while maintaining fair and equitable access to Pacific whiting by all sectors of the program. The following sections of this preamble provide (1) a description of the non-tribal Pacific whiting fishery; (2) the need for action; and (3) the final regulations.

In January 2011, NMFS implemented a trawl rationalization program, a catch share system, for the Pacific coast groundfish fishery's trawl fleet. The program was adopted through Amendment 20 to the Pacific Coast Groundfish Fishery Management Plan (FMP) (75 FR 78344, December 15, 2010) and is a type of limited access privilege program under the MSA. Many of the specific provisions of the program, including those modified through this rulemaking, are in regulation at 50 CFR 660, but were not included in the Amendment 20 changes to the FMP. The trawl rationalization program is intended to increase net economic benefits, create individual economic stability, provide full utilization of the trawl sector allocation, consider environmental impacts, and achieve individual accountability of catch and bycatch. The program consists of cooperatives for the at-sea MS and CP fleets that target and process Pacific whiting (or the at-sea trawl fleet), and an individual fishing quota (IFQ) program for the shorebased trawl fleet that targets both Pacific whiting and a wide range of other groundfish species (or the Shorebased IFQ Program).

The at-sea trawl fleet consists of fishery participants harvesting and processing Pacific whiting and is further divided as follows: (1) The Pacific whiting CP sector, which has been operating under the Pacific Whiting Conservation Cooperative (PWCC) since 1997 and was formalized for management with the implementation of Amendment 20 (the CP Co-op Program); and (2) the Pacific whiting MS sector (MS Co-op Program). The MS sector is made up of mothership catcher vessels (MSCVs), which harvest fish, and motherships, which process the fish at-sea. The MS sector program may include multiple co-ops where vessels pool their harvest together to form fishing cooperatives, as well as vessels not associated with a co-op ( i.e., the “non-co-op” segment of the MS fishery). In March of 2011, the owners of all 37 MSCV permits formed a co-op called the “Whiting Mothership Cooperative (WMC)”. Every year since then, all participants in the sector have operated in the co-op. One of the primary purposes of the WMC is to minimize the bycatch of constraining rockfish species and Chinook salmon.

The shoreside Pacific whiting sector was grouped into the Shorebased IFQ Program during the development of Amendment 20. Vessels in this fishery target Pacific whiting with midwater trawl gear. Fishery participants must have quota pounds to harvest Pacific whiting catch and associated bycatch. About half of the shoreside Pacific whiting vessels also cross-participate in the MS fishery ( i.e., MSCV). Within the shoreside Pacific whiting fishery, there is the Shoreside Whiting Cooperative, which is voluntarily made up of participating vessels, and is not formally recognized in the groundfish regulations. Historically, approximately two-thirds of shoreside Pacific whiting vessels have participated in the co-op between 2012-2018.

Catch allocations for these subsectors are based on formulas set in Amendment 21 to the FMP, or are determined during the biennial management process. The total allowable catch (TAC) for Pacific whiting is set annually outside of the Council's harvest specifications process. The TAC is set through a bilateral process with Canada, consistent with the Agreement Between the Government of the United States of America and the Government of Canada on Pacific Hake/Whiting of 2003 (commonly known as the Pacific Hake/Whiting Treaty) where 73.88 percent of the TAC is allocated to U.S. fisheries, of which 17.5 percent is allocated to the Tribal sector. In the fall of each fishing year, an unused portion of the Tribal allocation may be reapportioned to the non-Tribal sectors. This often results in an initial allocation to the non-tribal sectors and then a post-reapportionment allocation. Species in the Groundfish FMP are managed differently between the at-sea sectors and the shoreside fishery. For the shoreside Pacific whiting fishery, participants must have quota pounds (QPs) to cover all catch of any IFQ species and some non-IFQ species are managed with trip limits. For the at-sea fisheries, set asides are established for select groundfish species within the biennial harvest specifications process. Set asides are managed on an annual basis unless there is a risk of exceeding a harvest specification, an unforeseen impact on other fisheries, or a conservation concern.

The recent management programs affected by this final rule are described in greater detail in the proposed rule (87 FR 55979, September 13, 2022).

The MS sector has experienced lower than average attainment than the other non-tribal commercial Pacific whiting sectors since the start of the trawl catch share program, particularly since 2017. Causes of under-attainment have been attributed to the limited availability of motherships for delivery of catch due to seasonal overlap with the Alaskan Eastern Bering Sea walleye pollock fishery. In addition, existing regulations have been identified as hindering some catcher vessels' opportunity to harvest or deliver fish to MS processors, by limiting the ability for available processors to accept fish from catcher vessels. These obstacles to harvesting and processing in the MS sector have led to reduced economic opportunity for participants.

Section 2.2.1 of the Analysis (see ADDRESSES ) found that from 2017-2019, the shoreside sector averaged attainment of 92 percent of the initial Pacific whiting allocations while the MS sector averaged 71 percent and the CP sector 100 percent (83, 64, and 90 percent of the post-tribal reapportionment allocation, respectively). Additionally, from 2017-2019, the MS sector is estimated to have not achieved potential economic opportunity of $14.5-$27.3 million in production value from unharvested Pacific whiting from the initial allocations and $21.5 to $31.8 million compared to the post-reapportionment allocations (section 5.4.1.0 of the Analysis).

In an informational report submitted by the Council's Groundfish Advisory Subpanel (GAP), the GAP reported during the previous five seasons, more than 350 million pounds of Pacific whiting worth more than $28 million in ex-vessel revenue had been left unharvested in the MS sector. Some catcher vessels had been unable to harvest and deliver their full MS sector allocations and, in certain cases, catcher vessels had been stranded without a MS processor to deliver to in a season or year. The GAP also reported that many MS sector participants, including all six MS processor vessels and several MS catcher vessels, participate in the Alaska pollock fishery where record high catch limits in recent years had limited the availability of processor vessels and some catcher vessels to participate in the Pacific whiting fishery during the primary Pacific whiting season, between May 15 and December 31.

The Council considered this action over a number of meetings and made its final recommendation in March 2022.

This final rule revises existing regulations that apply to the Pacific Coast Groundfish Trawl Rationalization Program participants while operating in the non-tribal Pacific whiting fishery in order to provide increased operational flexibility and harvesting capabilities in the Pacific whiting fishery and increase the MS sector's ability to utilize its Pacific whiting allocation. The revisions include: (1) adjusting the primary Pacific whiting season start date for all sectors of the Pacific whiting fishery north of 40°30′ N lat. from May 15 to May 1, and adjusting administrative dates associated with the start of the season; (2) removing from regulation the MSCV processor obligation deadline of November 30; (3) removing from regulation the MS processor cap of 45 percent; and (4) removing restrictions prohibiting an at-sea Pacific whiting processing vessel from operating as a MS or CP in the same calendar year.

The Council recommended and NMFS is implementing these changes based on information in the Analysis indicating that these measures will: (1) increase utilization of available MS quota that has previously been unrealized; (2) increase opportunities in the MS sector by providing participants with an additional 15 days to participate in the Pacific whiting fishery, providing up to a month of Pacific whiting harvest opportunities between the Alaska pollock seasons; and (3) increase overall attainment leading to economic benefits for all sectors.

This final rule amends regulations at 50 CFR 660.131(b)(2)(iii) to allow all sectors of the Pacific whiting fishery north of 40°30′ N lat. to begin operating May 1. Currently, there are reporting requirements due 45 days prior to the current season start date of May 15. This final rule aligns all of these administrative dates to 45 days prior to the new season start date of May 1, which would be March 17. Specifically, these date changes apply to the annual MS co-op and CP co-op reports (50 CFR 660.113(c)(3) and (d)(3), respectively), the deadline for proposed salmon mitigation plans (SMPs) (50 CFR 660.113(e)(3)), the submission deadline for post season SMP reports (50 CFR 660.113(e)(6)(i)), the deadline for declaring into the MS co-op or non-co-op fishery (50 CFR 660.150(g)(2)(i)), and the MS co-op and CP co-op permit annual registration deadlines (50 CFR 660.150(d)(1)(ii) and 660.160(d)(1)(ii), respectively). Additionally, this final rule moves up an Electronic Monitoring (EM) application due date (50 CFR 660.604(e)) and an EM renewal date (50 CFR 660.604(i)) from February 15 to February 1 to align with the new season start date of May 1.

The Council recommended and NMFS is implementing this earlier season start date to provide vessels with an additional 15 days to participate in the Pacific whiting fishery and provide even more opportunity to harvest the Pacific whiting quota. The new season start date applies to all non-tribal sectors participating in the Pacific whiting fishery north of 40°30′ N lat. As noted in section 2.2.1 of the Analysis, many vessels that fish in the Pacific whiting fishery earn the majority of their revenue in the Alaska fisheries and are likely incentivized to prioritize higher price of pollock above Pacific whiting. Therefore, this final rule provides vessels with an additional 15 days to participate in the Pacific whiting fishery, providing up to a month of Pacific whiting harvest opportunities between the Alaskan Eastern Bering Sea walleye pollock seasons.

This final rule is expected to considerably increase attainment for the MS sector, leading to economic benefits for all participants. According to section 2.2.1 of the Analysis, the potential additional catch that could have occurred in the additional two weeks of fishing in the 2016-2020 period could have been associated with $8.4 to $20.3 million in production revenue for the MS sector (assuming market conditions, weather, and other factors). The additional catch would have resulted in an estimated $10.5-$22.8 million in income impacts and 159 to 345 associated jobs.

As described in the proposed rule (87 FR 55979, September 13, 2022), no additional biological impacts to Pacific whiting and other groundfish species are expected under this final rule. Additionally, overall estimates of Pacific salmon bycatch are still within the estimates analyzed in the 2017 Endangered Species Act (ESA) Section 7(a)(2) Biological Opinion (F/WCR-2017-7552) regarding the effects of the PFMC's Groundfish FMP on listed salmonids (2017 Biological Opinion).

This final rule removes regulations at 50 CFR 660.150(c)(7) that require MSCVs to obligate their catch history assignment (CHA) to a MS permit by November 30 during the limited entry permit (LEP) renewal process (50 CFR 660.25(b)(4)(i)(A)). Under this final rule, there is no longer a requirement for MSCV-endorsed permit owners to notify NMFS of a mutual agreement exception (MAE) nor a requirement for NMFS to track the obligations (50 CFR 660.150(c)(7)(iv)). Additionally, the requirement for notification of a MS permit withdrawal at 50 CFR 660.150(c)(7)(v) is no longer required. MSCVs are still required to renew their limited entry permits each year, which includes the co-op declaration for the following year (50 CFR 660.150(g)(2)(i)), and co-op(s) are still required to submit their annual application per 50 CFR 660.150(d)(1)(iii).

The Council recommended and NMFS is implementing the removal of the MS obligation requirement from regulations to provide MSCVs additional flexibility to change processors inseason without regulatory delay. Removal of the obligation deadline will provide a more flexible management regime whereby participants may continue to balance individual needs of each entity to optimally harvest fish through private contracts and still provide consistent revenue. This final rule is expected to reduce administrative costs due to MSCVs not needing to notify NMFS of MAEs inseason and is expected to remove a regulatory and administrative burden to NMFS and members of the MS sector. Current enforcement costs, the capability to monitor fishing activity ( i.e., area closures, gear requirements, safety standards) and monitoring of the fishery through electronic monitoring or observers, including catch and discard accounting, will not change.

This final rule removes the MS usage limit ( i.e., processor cap) of 45 percent from regulation (§ 660.150(f)(3)(i)), and there are no longer restrictions on the amount of the MS sector allocation that an entity could process. MS permit holders are no longer required to submit to NMFS a trawl identification of ownership interest (OI) form in order to verify compliance of the MS processor cap, as per § 660.150(f)(3)(iv). MSCVs are still held to a 20 percent accumulation limit of the Pacific whiting CHA (50 CFR 660.150(g)(3)(i)) and a catch limit of 30 percent of the allocation (50 CFR 660.150(g)(3)(ii)).

The Council recommended and NMFS is implementing the removal of the MS processor cap to provide MS permit holders additional flexibility and to prevent occurrences of MSCVs not being able to deliver to a MS processor that had exceeded or was close to exceeding the 45 percent processing cap. Removal of the MS processor cap is expected to provide positive benefits to the MS sector through increased harvesting capabilities and increased flexibility in management of the MS sector. This in turn may provide an increase in revenue for the fishery as a whole and for fishing communities.

Additionally, this final rule will eliminate the need for the industry or NMFS to monitor compliance with the accumulation limit and will provide the industry with the ability to harvest more fish when fish are present on the grounds and optimize the efficiencies built into the fishery ( i.e., available crew, scheduled landings to motherships and processing capacity). As discussed in the proposed rule, the Council set the processing cap for the MS sector at 45 percent to inhibit consolidation. Section 3.1.4 of The Analysis, however, shows it is likely that more than one MS would continue to participate in the fishery under the this final rule. Several factors, including Alaska pollock fishery opportunities and actual capacity of a single MS vessel, suggest that it would be unlikely and probably not feasible for one vessel to process the entire allocation. In addition, the Analysis shows even if an entity was able to process the entirety of the MS allocation under this final rule, there would still be competition from other owners across the other whiting sectors and other fisheries that produce whitefish.

This final rule removes restrictions prohibiting an at-sea Pacific whiting processing vessel from operating as a MS or CP in the same calendar year (50 CFR 660.112(d)(3) and (e)(3)). This action allows a processing vessel to operate as both an MS and CP in the same calendar year, but not on the same trip. Owners of processing vessels that intend to operate as both an MS and a CP during the Pacific whiting season are required to register the processing vessel under valid MS and CP permits per regulations at 50 CFR 660.25(b). The vessel may be registered under both an MS permit and a CP endorsed permit simultaneously. Additionally, this final rule includes some administrative changes to allow additional transfers of limited entry MS permits and limited entry permits with a CP endorsement so that these permits may be transferred more than twice within a calendar year.

Current requirements for operating as a MS or CP continue to apply. To operate in the MS fishery ( i.e., receive deliveries of catch from MS catcher vessel and process MS sector allocations at-sea) the vessel must be included in the MS co-op agreement. To operate in the CP fishery ( i.e., catch and process CP sector allocations at-sea) the vessel must be included in the CP co-op agreement. Including a new vessel in either the MS or CP co-op agreement constitutes a material change to the co-op agreement. Within 7 calendar days of the new processing vessel operating for the first time in either the MS co-op fishery or the CP co-op fishery, the respective co-op manager must notify NMFS in writing of such change to the co-op agreement as required in regulations at 50 CFR 660.150(d)(1)(iii)(B)( 4 ) and 660.160(d)(1)(iii)(B)( 4 ).

Consistent with current regulations at 50 CFR 660.150(d)(1)(iii)(B)( 4 ) and 660.160(d)(1)(iii)(B)( 4 ), within 30 days of a new vessel participating in a co-op fishery, the MS or CP co-op manager must submit a revised co-op agreement to NMFS that lists all vessels and/or processing vessels operating in the respective co-op and include the new processing vessel, along with a letter describing the change to the co-op agreement.

For each trip, the vessel is still required to update its vessel monitoring system (VMS) declaration to reflect its activity for that trip prior to departure as specified in existing groundfish regulations at 50 CFR 660.13(d)(4)(iv)(A).

A separate economic data collection (EDC) form is required for the owner, lessee, charterer of a mothership vessel registered to an MS permit as well as owner, lessee, charterer of a catcher processor vessel registered to a CP-endorsed limited entry permit. If a vessel holds both types of permit in one calendar year, two EDC forms must be submitted as specified at 50 CFR 660.114. Additionally, separate cost recovery requirements apply to each sector, as described at 50 CFR 660.115.

The Council recommended and NMFS is lifting the restriction on MS and CP permit transfers to increase the likelihood that MSCVs have markets to which to deliver catch throughout the fishing season. The operational flexibility provided in this action would provide significant additional economic opportunity to at-sea Pacific whiting fishery participants and fishing communities. These measures will allow catcher vessels to harvest MS sector allocations and provide catch revenue to the respective vessel crews. In the event that additional processing vessels cannot commit to taking deliveries from catcher vessels (due to changes in business plans, for example) this action will provide additional harvesting and processing opportunities for at-sea Pacific whiting fishery participants.

Overall, this final rule is expected to increase attainment across all three non-tribal Pacific whiting sectors, with the largest change expected in the MS sector. While the movement of the primary season start date is likely to provide the most benefit in terms of harvest opportunities when both MS and MSCVs can be on the fishing grounds, the increased flexibility to have more processors (via the unlimited permit transfer) or have processors accept and potentially process higher amounts of catch (removal of the processor cap) may, in combination, provide the most opportunity to increase attainment and economic benefits for all sectors. Increased attainment of the Pacific whiting allocation, through additional fishing opportunity, processing capacity, and flexibility, will result in positive benefits to the fleet and the communities in which participants reside. There are expected to be no biological impacts outside of those previously disclosed in harvest specifications processes for both groundfish and Pacific whiting or those in the 2017 Biological Opinion for salmonids.

NMFS is also implementing additional administrative changes in this rule. This final rule adjusts cost recovery regulation language to state that the value of “Pacific whiting” instead of “all groundfish” will be used in the annual cost recovery fee calculations for the at-sea sectors to reflect the current practice of using Pacific whiting only in the cost recovery fee calculations. While the cost recovery regulations state that all groundfish harvested should be used to calculate ex-vessel value, it is current practice to use Pacific whiting only when calculating the ex-vessel value of the MS and CP sectors. Only Pacific whiting is used because there is insufficient data available on the value of non-whiting species encountered by the MS and CP sectors. This change reflects the original intention of the Council in their 2011 cost recovery recommendations. The Council recommended this change to NMFS at the April 2021 meeting.

This final rule makes some technical, non-substantive changes to improve comprehensibility of the regulations by removing outdated regulations.

NMFS held a public comment period on the proposed rule (87 FR 55979, September 13, 2022) from September 13, 2022, to October 13, 2022. NMFS received a total of four public comment submissions. Three of the public comments were from private citizens, and one of the public comments was from a commercial fishing entity that participates in one of the affected sectors. All expressed general support of the proposed rule with the exception of one commenter not supporting the change of the season start date. This comment and response is summarized below.

Comment: A private citizen commented that they are concerned about moving the season start date forward two weeks due to the possible impacts on other fish populations, particularly Pacific salmon. That private citizen does not believe there is sufficient evidence to support moving the season start date forward, but is in favor of the other components of the rule.

Response: This final rule appropriately balances NMFS's duties under the Magnuson-Stevens Act to conserve marine resources while simultaneously creating opportunities to achieve optimum yield and extends gratitude for the engagement of the public during this process. As detailed in the proposed rule (87 FR 55979, September 13, 2022) and in the Analysis, NMFS evaluated the potential impact of the season date change on salmon bycatch in the whiting sectors and determined that this action is unlikely to either increase the total amount of catch or change the composition of the bycatch. Specifically, the Analysis indicates the anticipated impacts would be within the effects considered in the 2017 Biological Opinion. NMFS is aware of the uncertainty in salmon bycatch and stock compositions since the fishery has not occurred during early May since the 1990s. However, the fishery continues to operate under the reasonable and prudent measures described in the incidental take statement (ITS) of the 2017 Biological Opinion to limit bycatch, and inseason management tools to reduce listed bycatch, therefore we have the ability to act to reduce bycatch if an issue does arise.

NMFS is issuing this rule pursuant to section 304(b)(1)(A) and 305(d) of the Magnuson-Stevens Act, which provides specific authority and procedure for implementing this action. The majority of this rulemaking is promulgated pursuant to section 304(b)(1)(A); the Council recommended this action at its April 2021 and March 2022 meetings. This rulemaking also includes minor regulatory changes promulgated pursuant to section 305(d). This action is necessary to improve comprehensibility of the regulations by removing outdated regulations.

The NMFS Assistant Administrator has determined this final rule is consistent with the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

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

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 collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This rule extends the existing requirements for the Pacific Coast Groundfish Trawl Rationalization Program Permit and License Information Collection OMB Control Number 0648-0620 and revises the existing requirements by removing the requirement for the owner of the MSCV-endorsed permit to submit a copy of a MAE to NMFS that includes the MS permit owner's acknowledgement of termination of the catcher vessel's obligation to the permitted MS vessel. If a MS permit withdraws from the fishery before Pacific whiting has been allocated to the MS sector, this rule removes the requirement of the MS permit owner withdrawing from the fishery to provide written notification to NMFS and all owners of MSCV-endorsed permits with CHA obligated to the MS permit withdrawing. Additionally, this rule removes the requirement for a MS to submit an ownership interest (OI) form. This rule removes 3 hours and 18 burden minutes per year for the fishery. Public reporting burden for removing the requirements of submitting a MAE, a MS permit withdrawal and removing the requirement of a MS submitting an OI form is estimated to result in a reduced average cost of $5.34 per year for participants of the fishery.

The existing collection of information requirements continue to apply under the following OMB Control Number 0648-0573: Expanded Vessel Monitoring System (VMS) Requirements for the Pacific Groundfish Fishery.

We invite the general public and other Federal agencies to comment on proposed and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Written comments and recommendations for this information collection should be submitted on the following website: https://www.reginfo.gov/public/do/PRAMain. Find this particular information collection by using the search function and entering either the title of the collection or the OMB Control Number 0648-0620.

Notwithstanding any other provisions 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, NMFS amends 50 CFR part 660 as follows:

I. Harvest Specifications

This final rule sets 2023-24 harvest specifications and management measures for 127 of the 128 groundfish stocks or management units which currently have ACLs or ACL contributions to stock complexes managed under the PCGFMP, except for Pacific whiting. Pacific whiting harvest specifications are established annually through a separate bilateral process with Canada.

The OFLs, ABCs, and ACLs are based on the best available biological and socioeconomic data, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. See Tables 1a and 2a to Part 660, Subpart C in the regulatory text supporting this rule for the 2023-24 OFLs, ABCs, and ACLs for each stock or stock complex.

A detailed description of each stock and stock complex for which the Council establishes harvest specifications set through this rule can be found in the 2022 SAFE document posted on the Council's website at https://www.pcouncil.org/stock-assessments-star-reports-stat-reports-rebuilding-analyses-terms-of-reference/ safe-documents-4/. A summary of how the 2023-24 harvest specifications were developed, including a description of off-the-top deductions for tribal, research, incidental, and experimental fisheries, was provided in the proposed rule (87 FR 62676, October 14, 2022) and is not repeated here. Additional information on the development of these harvest specifications is also provided in the Analysis.

For most stocks, the Council recommended harvest specifications based on the default harvest control rule used in the prior biennium. The Council recommended deviating from the default harvest control rule for two stocks in 2023-2024. Table 1 presents a summary of the changes to the harvest control rules for these stocks for the 2023-24 biennium. Each of these changes was discussed in the proposed rule and that discussion is not repeated here.

This final rule will revise management measures, which are used to further allocate the ACLs to the various components of the fishery ( i.e., biennial fishery harvest guidelines and set-asides) and to control fishing. Management measures for the commercial fishery modify fishing behavior during the fishing year to ensure catch does not exceed the ACL, and include trip and cumulative landing limits, time/area closures, size limits, and gear restrictions. Management measures for the recreational fisheries include bag limits, size limits, gear restrictions, fish dressing requirements, and time/area closures. Each of these changes was discussed in the proposed rule and that discussion is not repeated here.

As described in the proposed rule, before making allocations to the primary commercial and recreational components of groundfish fisheries, the Council recommends “off-the-top deductions,” or deductions from the ACLs to account for anticipated mortality for certain types of activities: harvest in Pacific Coast treaty Indian tribal fisheries; harvest in scientific research activities; harvest in non-groundfish fisheries (incidental catch); and harvest that occurs under EFPs. These off-the-top deductions are proposed for individual stocks or stock complexes and can be found in the footnotes to Tables 1a and 2a to part 660, subpart C in the regulatory text of this final rule. The details of the EFPs were discussed in Section III.H of the proposed rule. The Tribal harvest set-asides and allocations proposed for the 2023-24 biennium for groundfish species other than Pacific whiting, were shown in Table 5 of the proposed rule.

The Council routinely recommends 2-year trawl and non-trawl allocations during the biennial specifications process for stocks without formal allocations (as defined in Section 6.3.2 of the PCGFMP) or stocks where the long-term allocation is suspended. Allocations are detailed in the harvest specification tables appended to 50 CFR part 660, subpart C in the regulatory text of this final rule and described in Section III.C. of the proposed rule. As proposed, allocations for big skate, bocaccio South of 40°10′ N lat., canary rockfish, cowcod, lingcod South of 40°10′ N lat., longnose skate, Shelf Rockfish Complex, Slope Rockfish Complex, petrale sole, and widow rockfish are revised with this final rule.

Rockfish Conservation Areas (RCAs) are large area closures intended to reduce the catch of a stock or stock complex by restricting fishing activity at specific depths. The boundaries for RCAs are defined by straight lines connecting a series of latitude and longitude coordinates that approximate depth contours. This final rule makes minor line modifications seaward of California around Eel Canyon (near Eureka), Mendocino Canyon, Mattole Canyon, the Farallon Islands (near San Francisco), the Channel Islands (near Santa Barbara and east of Anacapa Island), Redondo Canyon, Santa Catalina Island, Lasuen Knoll, and Santa Clemente Island, as well as in near Albion, Monterey Bay, Point Sur, Morro Bay, Port Hueneme, Santa Monica Bay, Point Vincente, Huntington Beach, and San Diego. These modifications would better align existing RCA coordinates with chart-based depth contours, reduce boundary line crossovers, and address enforcement concerns. See Section III.D of the proposed rule or Section 2.1 of the Analysis for more details on these changes.

The limited entry trawl fishery is made up of the shorebased IFQ program, whiting and non-whiting, and the at-sea whiting sectors. For some stocks and stock complexes with a trawl allocation, an amount is first set-aside for the at-sea whiting sector with the remainder of the trawl allocation going to the shorebased IFQ sector. Set-asides are not managed by NMFS or the Council except in the case of a risk to the ACL. This final rule adopts at-sea set asides as shown in Section III.E., Table 16 of the proposed rule. For vessels fishing in the Shorebased IFQ Program, with either groundfish trawl gear or non-trawl gears, the following incidentally-caught stocks are managed with trip limits: Minor Nearshore Rockfish north and south, Washington black rockfish, Oregon black/blue/deacon rockfish, cabezon (46°16′ to 40°10′ N lat. and south of 40°10′ N lat.), spiny dogfish, longspine thornyhead south of 34° N lat., big skate, California scorpionfish, longnose skate, Pacific whiting, and the Other Fish complex. As described in the proposed rule in Section III.E., this rule maintains the same IFQ fishery trip limits for these stocks for the start of the 2023-24 biennium as those in place in 2022. Trip limits for the IFQ fishery can be found in Table 1 North and Table 1 South to part 660, subpart D of this final rule. Changes to trip limits would be considered a routine measure under § 660.60(c), and may be implemented or adjusted, if determined necessary, through inseason action.

Management measures for the LEFG and OA non-trawl fisheries tend to be similar because the majority of participants in these fisheries use hook-and-line gear. Management measures, including area restrictions ( e.g., non-trawl RCA) and trip limits in these non-trawl fisheries, are generally designed to allow harvest of target stocks while keeping catch of overfished stocks low. LEFG trip limits are specified in Table 2 (North) and Table 2 (South) to subpart E. OA trip limits are specified in Table 3 (North) and Table 3 (South) to subpart F in the regulatory text of this final rule. As described in Section III.F. of the proposed rule, sablefish trip limits are being modified and the sablefish annual tier limits are being updated. Sablefish annual tier limits for 2023 and 2024 can be found at § 660.231(b)(3)(i) in the regulatory text of this final rule.

The Council primarily recommends depth restrictions and bag limit changes to constrain catch within the recreational harvest guidelines for each stock. Washington, Oregon, and California each proposed, and the Council recommended, different combinations of seasons, bag limits, area closures, and size limits for stocks targeted in recreational fisheries, as described in Section III.G of the proposed rule. These measures are designed to limit catch of overfished stocks found in the waters adjacent to each state while allowing target fishing opportunities in their particular recreational fisheries. Changes to management measures for recreational fisheries off the coasts of Washington, Oregon and California can be found in § 660.360 of the regulatory text of this final rule.

Shortbelly rockfish is one of the most abundant rockfish species in the California Current Ecosystem and is a key forage species for many fish, birds, and marine mammals. Amendment 30 adds language to the PCGFMP stating that if shortbelly rockfish mortalities exceed, or are projected to exceed, 2,000 mt in a calendar year, the Council would review relevant fishery information and consider if management changes were warranted, including, but not limited to reconsideration of its current classification as an ecosystem component (EC) species. To estimate mortality and provide for catch accounting, this final rule adds a sorting requirement for shortbelly rockfish in the LEFG and OA fisheries. For more information on this measure, see the NOA for Amendment 30, the Analysis, and Section III.I of the proposed rule.

NMFS notes that routine management measures as laid out in 50 CFR 660.60(c) are not currently available for shortbelly rockfish management because shortbelly rockfish is an EC species. Shortbelly rockfish would need to be redesignated as “in the fishery” prior to routine management measures being available for inseason use. However, the Council could recommend, consistent with the points of concern framework (FMP Section 6.2.2), management measures to minimize bycatch or bycatch mortality of EC species as laid out in 50 CFR 600.305(c)(5). Depending on the issue triggering the need for management measures, this pathway might require revisiting the EC designation.

This final rule also allows non-trawl vessels to use select hook-and-line gear configurations within the NT-RCA to provide additional opportunity to commercial non-trawl fisheries to target healthy stocks, relieve pressure on overfished or constraining nearshore stocks, and limit impacts to sensitive habitats, as described in Section III.J of the proposed rule.

This final rule allows vessels in the directed open access fishery targeting groundfish to operate inside the NT-RCA from 46°16′ N lat. to the U.S./Mexico border with non-bottom contact hook-and-line gear only, subject to the specifications described in Section III.J of the proposed rule, including but not limited to the vessel declaring into the directed open access fishery, and the vessel would not be permitted to declare into any other fishery if fishing inside the NT-RCA.

This final rule permanently extends the LEFG sablefish primary tier fishery (hereinafter referred to as primary fishery) season end date from October 31 to December 31. The primary fishery would close on December 31, or close for an individual vessel owner when the tier limit for the sablefish endorsed permit(s) registered to the vessel has been reached, whichever is earlier. This action also extends the incidental Pacific halibut retention allowance provision for the primary fishery north of Point Chehalis, Washington from October 31 to the date/time specified by the International Pacific Halibut Commission (IPHC) annually for the closure of Pacific halibut commercial fisheries coastwide, or until the quota is taken, whichever comes first. For more information on this measure, see the Analysis and in Section III.K of the proposed rule.

Amendment 30 makes a minor change to the PCGFMP to resolve a mismatch between the FMP and current regulatory text. The PCGFMP will be revised to match the Council's intent to manage incidental salmon bycatch by vessels using groundfish midwater trawl gear in the EEZ off of Washington, Oregon, and California with Block Area Closures (BACs), as currently described in regulations. For more information on this measure, see the NOA for Amendment 30, the Analysis, and Section III.L of the proposed rule.

This final rule sets Annual Catch Targets (ACTs) for copper rockfish and quillback rockfish, for the reasons described in Section III.M of the proposed rule. For copper rockfish, the ACT would be set equal to its ACL contribution for the portion of the stock found off of California and would be set at 91.54 mt in 2023, and 94.72 mt in 2024. For quillback rockfish, an ACT would be set for the portion of the stock found off of California and would be set at 1.86 mt in 2023, and 1.97 mt in 2024.

This final rule allows for novel utilization of the previously established Rockfish Conservation Area (RCA) boundary lines for the recreational fishery seaward of California (§ 660.360(c)(3)) by allowing fishing seaward of a specified RCA boundary line and prohibiting fishing shoreward of that line. This measure is taken in addition to the regulatory management measures to reduce mortality of copper and quillback rockfish in 2022 (and continued for 2023-2024) and voluntary measures taken by industry, to reduce mortality of copper and quillback rockfishes. If mortality is lower than expected through the regular inseason monitoring and reporting, the Council and NMFS would consider relieving restrictions during the biennium in order to reduce socioeconomic impacts, while keeping mortality within the recommended ACTs for these species. For more information on this measure, see the NOA for Amendment 30, the Analysis, and Section III.N of the proposed rule.

This final rule makes Block Area Closures (BACs) available as a routine management measure to control catch of groundfish by midwater trawl and bottom trawl non-tribal vessels. BACs could be implemented in the EEZ seaward of Washington, Oregon, and California. For more information on this measure, see the Analysis and Section III.O of the proposed rule.

This rule makes minor corrections to the regulations at 50 CFR 600. These regulations are associated with Amendment 29 (85 FR 79880, December 11, 2020), Amendment 21-4 to the PCGFMP (84 FR 68799, December 17, 2019), and the 2019-2020 biennial harvest specifications (83 FR 63970, December 12, 2018). These minor corrections are necessary to reduce confusion and inconsistencies in the regulatory text and ensure the regulations accurately implement the Council's intent.

This rule updates the definition of “Ecosystem component species” at § 660.11 to add shortbelly rockfish in the list of species designated as ecosystem component and removes the shortbelly rockfish trip limit from Table 2 (North) and Table 2 (South) to Part 660, Subpart E, as well as Table 3 (North) and Table 3 (South) to Part 660, Subpart F.

This rule amends § 660.55(c)(1) Table 1 by removing the allocations for canary rockfish, as well as petrale sole, widow rockfish, lingcod south of 40°10′ N lat., and the slope rockfish complex south of 40°10′ N lat., consistent with Amendment 29.

This rule amends § 660.140 to remove darkblotched rockfish, Pacific ocean perch, and widow rockfish from paragraph (c)(3)(iii) and add them to paragraph (c)(3)(iv), consistent with Amendment 21-4.

This rule removes cross references to at-sea set-asides at Table 1d to Subpart C of part 660, in § 660.150 and § 660.160 and clarifies that the at-sea set-asides are described in the biennial specifications, consistent with Amendment 29.

This final rule amends the regulations regarding depth restrictions for recreational vessels operating within the Western Cowcod Conservation Area at § 660.360(c)(3)(i)(B), to note that a coordinate list describing the 40 fm (73 m) depth contour can be found in §  660.71.

For more information on each of these changes, see Section III.P. of the proposed rule.

The notice of availability was published on September 6, 2022 (87 FR 54445) and received 5 public comments. Of those public comments, one commenter agreed with the proposed measures. A comment letter from California Department of Fish and Wildlife supported the measures to extend the length of the limited entry fixed gear sablefish primary season, supported changing the use of RCA boundaries, and supported expanding the use of BACs and correcting its definition. The other 4 comments pertained to measures in the proposed rule for implementing regulations. The proposed rule was published on October 14, 2022 (87 FR 62676) and received 6 public comments. All comments pertaining to the measures in the proposed rule are addressed below.

Comment: Five commenters disagreed with new, more restrictive, management measures for certain groundfish. Reasons for disagreement included the perception that the fishery is thriving, and that the surveys and stock assessments were inaccurate.

Response: The 2023-2024 groundfish harvest specifications and management measures are informed by the best scientific information available, including surveys and new stock assessments. As discussed in the proposed rule (87 FR 62676), new stock assessments for certain rockfish species indicate these species are depleted, and more restrictive management measures are necessary to keep catch within lower catch limits.

Comment: One commenter disagreed with the trip limits for sablefish north of 36° N latitude between the limited entry and open access sectors and thinks the open access limits should be proportionally lower than the limited entry limits to increase the value of limited entry permits and recognize the difference in investment between the two sectors.

Response: The Council recommended, and NMFS is implementing with this rule, the sablefish trip limits north of 36° N latitude. Typically, the trip limits in the open access sector are lower than the limited entry sector; however, the proportionality fluctuates across years and across species. This fluctuation is caused mostly by differences in fishing effort and market changes. Sector specific trip limits are designed to increase the likelihood of each sector attaining its annual sector-specific sablefish allocation. Trip limits for each sector are a policy recommendation from the Council based on fishery information and the fixed proportion of harvest privilege for each sector.

Comment: Two commenters pointed out discrepancies between the proposed rule preamble and regulatory text and recommended corrections to the proposed rule to bring consistency with Council recommendations.

Response: NMFS appreciates the attention to these details, agrees that those corrections are warranted for consistency with the Council recommendations, and has therefore made corrections and changes in this final rule, as described in the corrections to the proposed rule section below.

Comment: One fisherman commented that the open access north trip limits for the shelf rockfish complex are too low and are likely to result in regulatory discards as fishermen catch increased trip limits for co-occurring species. They request that NMFS consider inseason changes to increase those limits to reduce potential regulatory discards.

Response: NMFS acknowledges the difference in trip limits for these co-occurring species and notes that differences in the scale of the trip limits does not necessarily mean that regulatory discards will occur, or that higher trip limits can be accommodated while keeping total catch within applicable harvest specifications. In the future the Council may, based on updated fishery information, recommend an inseason increase to the subject shelf rockfish limits, at which point NMFS will consider such regulation changes.

Comment: The California Department of Fish and Wildlife (CDFW) commented to express uncertainty whether current and proposed new sorting requirements for shortbelly rockfish are sufficient to allow the agency and the Council to monitor whether shortbelly rockfish catch exceeds the review trigger established as part of Amendment 30 or whether additional measures would be needed.

Response: This final rule implements new scientific sorting requirements for shortbelly rockfish consistent with § 660.12(a)(8), removes management measures that are no longer necessary, and otherwise allows the continued tracking of shortbelly rockfish catch to allow the agency and the Council to determine if and when the review trigger is met. Scientific sorting requirements allow for sorting requirements that are not otherwise necessary due to management measures such as trip limits. The trawl sector is already subject to a sorting requirement for shortbelly rockfish (see 50 CFR 660.130(d)(1)(i)). This final rule implements a scientific sorting requirement for the limited entry fixed gear (§ 660.230(c)(2)(i)) and open access sectors (§ 660.330(c)(2)(1)). Collectively, these new scientific sorting requirements, in conjunction with the sorting requirements already in place, provide the agency and the Council the ability to track shortbelly rockfish catch inseason and evaluate if and when the review trigger is met.

Comment: CDFW questioned the removal of management measures for shortbelly rockfish. CDFW also expressed concern that under the new shortbelly rockfish review trigger provisions, there may not be inseason management responses available to the agency or Council.

Response: As noted in the proposed rule (87 FR 62676; October 14, 2022), we proposed removing trip limits for shortbelly rockfish because under Amendment 29 to the FMP, shortbelly rockfish was designated as an ecosystem component (EC) species. NMFS notes that routine management measures as laid out in 50 CFR 660.60(c) are not currently available for EC species. EC species are designated as such because they are not in need of conservation and management (see Amendment 29 final rule; 85 FR 79880, December 11, 2020). As we noted in Council deliberations on this action and again in the proposed rule, if the review trigger were met and if the Council was considering taking action in response, shortbelly rockfish would need to be redesignated as “in the fishery” prior to routine management measures being available for inseason use. However, the Council could recommend, consistent with the points of concern framework (FMP Section 6.2.2), management measures to minimize bycatch or bycatch mortality of EC species as laid out in 50 CFR 600.305(c)(5). Depending on the issue triggering the need for management measures, this pathway might require revisiting the EC designation.

Comment: CDFW suggested an addition to the recreational management measures off California to implement new provisions for “other groundfish” consistent with California state regulations.

Response: This suggested change is outside the scope of this action and would require additional consideration through the Pacific Fishery Management Council process.

Comment: CDFW suggests there is an error in the example of what is allowed under the recreational management measures at § 660.330(c)(3)(i)(A). For example, if a vessel fishes in the recreational salmon fishery within the RCA, the vessel cannot be in possession of rockfish while in the RCA. The vessel may, however, on the same trip fish for and retain rockfish shoreward of the RCA on the return trip to port. If the season is closed for a species or species group, fishing for that species or species group is prohibited both within the recreational RCA and shoreward of the recreational RCA, unless otherwise authorized in this section.

Response: The recreational management measures are found at § 660.360(c)(3)(i)(A) rather than in § 660.330. The example in this paragraph is already in place and was not being proposed for modification through this rulemaking. The example relates to what is allowed when the recreational RCA is used in its traditional structure, i.e., fishing is prohibited seaward of the line. Further down in the same paragraph, there is new explanation of the additional possible usage of the RCA line, e.g., prohibiting fishing shoreward of the line. Both uses will be available in the future, and therefore the example is still relevant for one of the uses of the RCA lines.

Comment: The Center for Biological Diversity (CBD) comment letter expressed concern about the risk of entanglements for humpback whales and Southern Resident killer whales in fishing gear due to the extension of the sablefish primary fishery from the current October 31 closure to December 31.

Response: As noted in the proposed rule and Analysis, the sablefish primary fishery is managed with quotas (tiers) that are restricted to a finite number of permits, and thus effort is also finite, which constrains any potential for spill-over from other fisheries. The quotas in this fishery are highly attained under the status quo and, therefore, the season extension is expected to spread effort out across the year, but not increase effort overall. Additionally, based on non-transferable gear endorsements, the fishery is comprised of more vessels using bottom longline gear than vessels using pot gear. Numerous surveys, sightings, models, and tracking efforts on humpback whale migrations and behavioral patterns have found that the presence of humpback whales along the West Coast is likely to be higher during the late spring through the fall, particularly in the northern areas of the coast where the Sablefish primary fishery is primarily prosecuted. This reflects a general migration pattern of humpback whales heading south to breeding areas by December each year, and subsequently starting to return to feeding areas by April (see Section 4.2 of the Analysis). Because the overall number of permits is restricted in this fishery, we would expect this season extension would allow a temporal distribution of effort so that some fishing effort that normally occurs earlier in the shorter season would shift to later in the extended season. Because the densities of humpback whales are generally decreasing later in the season, this action will not cause an effect to listed humpback whales or their critical habitat that was not considered in the 2020 Biological Opinion.

There have been no documented entanglements of any killer whales in the Pacific coast groundfish fishery (see List of Fisheries, 87 FR 55376, September 9, 2022). Killer whale entanglement with fishing gear is rare; there has never been a documented entanglement of a southern resident killer whale in gear associated with the primary sablefish fishery, and the known total fishery mortality and serious injury for SRKWs is zero (Carretta et al. 2022).

The probability of such an event is extremely small and this action would not increase that probability. As described in the Analysis, this action is not expected to change the location or level of fishing effort of the primary sablefish fishery, which is composed of both longline gear and, to a lesser extent, pot gear. Based on timing and distribution of the fishery, including the sablefish season extending to December 31 annually, and seasonal movement patterns of southern resident killer whales, direct overlap of Southern Resident killer whales and fishing vessels or gear in open coastal waters is unlikely and fishing vessel activities are not expected to affect Southern Resident killer whale passage. Therefore, we expect extension of the season to have little to no effect on southern resident killer whales or their designated critical habitat.

Comment: CBD also expressed concern that the extension of the sablefish primary fishery could affect Southern Resident killer whales by catching salmon, a prey species, in their critical habitat.

Response: The sablefish primary fishery is only prosecuted with bottom longlines and pot gear. These gear types have very low bycatch of salmon, particularly Chinook salmon. In the most recent salmon bycatch report for the groundfish fishery developed by the Northwest Fisheries Science Center covering 2002-2021, no salmon bycatch were documented in the pot gear sectors, and a maximum yearly count of 25 coho and 4 unspecified salmon were estimated in the limited entry sablefish hook and line fishery. As described in the Analysis, this season extension action is unlikely to change the location or level of fishing effort in the sablefish primary fishery. Therefore, we do not expect any changes in salmon bycatch in the fixed gear sectors from this action.

NMFS received comment letters from ODFW and CDFW noting inconsistencies in information presented in the preamble to the proposed rule and the regulatory text in the proposed rule. NMFS offers the following corrections in this final rule. These clarifications and corrections to the information in the proposed rule do not change the substance or intent of this action.

At 87 FR 62680 of the preamble of the proposed rule in the section Quillback Rockfish Off California two of the ACL contributions for the portion of the quillback rockfish off of California to the Nearshore Rockfish complex were transposed and so mislabeled. The ACL contribution for the portion of quillback rockfish off of California to the Nearshore Rockfish complex north of 40°10′ N lat. is 0.96 mt in 2024. The ACL contribution for the portion of quillback rockfish off of California to the Nearshore Rockfish complex south of 40°10′ N lat. is 0.89 mt in 2023.

At 87 FR 62684 of the preamble of the proposed rule in section III.C. Biennial Fishery Allocations all of the metric tonnage values for canary rockfish in 2023 and 2024 were slightly miscalculated in the preamble text and Table 8 but correct in the regulatory text. The following are the correct canary rockfish allocation numbers. In 2023, the trawl sector would receive 878.5 mt of canary rockfish, of which 36 mt would be deducted to account for bycatch in the at-sea sectors, and the remaining 842.5 mt would be distributed to the shorebased individual fishing quota (IFQ) sector. In 2023, the non-trawl sector would receive 336.6 mt which is distributed to the commercial non-trawl (121.2 mt), WA recreational (41.4 mt), OR recreational (62.3 mt), and CA recreational (111.7 mt) fisheries. In 2024, the trawl sector would receive 866.2 mt of canary rockfish, of which 36 mt would be deducted to account for bycatch in the at-sea sectors, and the remaining 830.2 mt would be distributed to the shorebased IFQ sector. The non-trawl sector would receive 331.9 mt, which is distributed to the commercial non-trawl sector (119.4 mt), WA recreational (40.8 mt), OR recreational (61.4 mt), and CA recreational (110.2 mt) fisheries.

At 87 FR 62684 of the proposed rule, the description in the preamble text of the cowcod non-trawl allocation in 2023 should have been 44.1 mt and not 44.0 mt. The 44.1 mt non-trawl allocation in 2023 was correctly listed in Table 9 of the preamble and in the applicable regulatory text.

At 87 FR 62685 of the preamble of the proposed rule, all of the metric tonnage values for lingcod south of 40°10′ N lat. in 2023 and 2024 were slightly miscalculated in the preamble text and Table 8 but correct in the regulatory text and used the correct percentage distribution. The following are the correct lingcod south of 40°10′ N lat. allocation numbers. In 2023, the distribution results in 284.2 mt to the trawl sector and 426.3 mt to the non-trawl sectors. In 2024, the distribution results in 282.6 mt to the trawl sectors and 423.9 mt to the non-trawl sectors. No further allocations or distributions are made.

In Tables 1a and 2a to Part 660 Subpart C of the regulatory text in the proposed rule, the OFLs, ABCs, ACLs and Fishery HGs for longspine thornyhead, sablefish, and shortspine thornyhead were mistakenly mislabeled when published due to a formatting error. The table published in the proposed rule showed that OFLs were only for the northern portion of the species and in Table 1a to part 660 subpart C it showed southern ACLs and HGs in the OFL and ABC columns for all three species. In this final rule the tables properly label the coastwide OFLs and ABCs and area-specific ACLs and Fishery HGs for each of those three species. Also in Table 2a to Part 660 Subpart C, footnote “x” mistakenly referenced that annual 2024 Pacific whiting harvest specifications would be announced in 2023. In this final rule footnote “x” is revised to reference the setting of 2024 annual Pacific whiting harvest specifications being announced in 2024.

In Table 1b. to Part 660 Subpart C of the regulatory text in the proposed rule, the trawl allocation percentage for bocaccio and canary rockfish was mistakenly carried to multiple decimal places. This resulted in rounding error in the published metric tonnage of the trawl and non-trawl allocations for canary rockfish. Table1b. to Part 660 Subpart C is revised to show 2023 bocaccio allocations as 39 percent to trawl and 61 percent to non-trawl and the canary rockfish trawl allocation percentage as 72.3 percent and allocation as 878.5 mt and to show the canary rockfish non-trawl allocation percentage as 27.7 percent and allocation as 336.6 mt. These percentages are consistent with those described in the preamble of the proposed rule in section III.C. Biennial Fishery Allocations.

At 87 FR 62690 of the proposed rule, in some places, Table 19 only provides the depth in fathoms, rather than also in meters. At 87 FR 62695, cowcod is included in a list of nearshore rockfish species of concern, however, cowcod is a shelf rockfish, nor a nearshore rockfish. At 87 FR 62719 in the proposed regulatory text for § 660.360(c)(3)(i)(A)(3), there is a typographical error of the word `is'.

As a result of comments received on the proposed rule, in this final rule NMFS is making the following changes from the proposed rule. In addition, a clarifying cross reference is being added from what was published in the proposed rule, revising the definition of the directed open access fishery as described below.

The proposed rule did not revise any of the southernmost boundary lines that approximate the 40 fm depth contour, found at § 660.71(o), or the 250 fm depth contour around San Diego Rise, found at § 660.74(q), aside from redesignating the order of some coordinates. In CDFW's thorough review of all of the coordinates in regulations, including the changes in the proposed rule, they discovered that one point on each of these boundary lines lay outside of the U.S. EEZ. NMFS does not have jurisdiction to establish or enforce fishing restrictions outside the EEZ. Therefore, CDFW recommended that one waypoint of each of these lines be revised in the following way: along the line that was formed by the existing points in regulation, where that line intersects the EEZ, add a revised waypoint and remove the old waypoint outside the EEZ. Therefore, NMFS is including a revision to newly redesignated paragraph § 660.71(o)(219) and a revision to § 660.74(q)(4) in this final rule as a technical correction to remove waypoints outside the EEZ while maintaining the size and shape of any closed areas bounded by the subject lines.

The proposed rule included regulatory revisions for a new management measure to allow vessels fishing as part of the directed open access fishery to fish within the NT-RCA with specified hook and line gear types and following certain provisions ( e.g., declarations, etc.). For more information on this new measure, see the proposed rule at Section III.J. Separately, NMFS published a final rule implementing a logbook requirement for the same group of vessels (87 FR 59724; October 3, 2022), and that final rule added a definition of the directed open access fishery to § 660.11. That added definition is pertinent to the fishery participants that are allowed to fish under the new management measure in this final rule that allows them to fish with non-bottom contact gear in the NT-RCA. This final rule adds text in paragraph (1) in the definition of “open access fishery” to cross reference the new measure at § 660.330(b)(3) that was published in the proposed rule and this final rule. This addition of the cross-reference is both administrative in nature and a logical extension of the proposed rule provisions, and does not change the function of the regulations described in the proposed rule or the logbook final rule.

Pursuant to section 304(b)(1)(A) and section 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the PCGFMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

Regulations governing the U.S. fisheries for Pacific halibut are developed by the IPHC, the Pacific Fishery Management Council, the North Pacific Fishery Management Council, and the Secretary of Commerce. Section 5 of the Northern Pacific Halibut Act of 1982 (Halibut Act, 16 U.S.C. 773c) allows the Regional Council, having authority for a particular geographical area, to develop regulations governing the allocation and catch of Pacific halibut in U.S. Convention waters as long as those regulations do not conflict with IPHC regulations. This final rule is consistent with the Council's authority to allocate Pacific halibut catches among fishery participants in the waters in and off the United States.

NMFS finds good cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective on January 1, 2023. This action establishes the final specifications ( i.e., annual catch limits) for the Pacific Coast groundfish fisheries for the 2023 fishing year, which begins on January 1, 2023. If this final rule is not effective on January 1, 2023, then the fishing year begins using the catch limits and management measures from 2022.

Because this final rule changes the catch limits for several species for 2023, leaving 2022 harvest specifications in place could create a conservation risk for species that have decreasing catch limits and for species with increasing catch limits, could unnecessarily delay fishing opportunities until later in the year, potentially reducing the total catch for these species in 2023. Thus, a delay in effectiveness could ultimately cause conservation issues and economic harm to the fishing industry and associated fishing communities or result in harvest levels inconsistent with the best available scientific information.

This final rule is not unexpected or controversial. The groundfish harvest specifications are published biennially and are intended to be effective on January 1 of odd numbered years. This action establishes final specifications ( i.e., annual catch limits) and management measures for the Pacific Coast groundfish fisheries for the 2023 fishing year, which begins on January 1, 2023. If this final rule is not effective on January 1, 2023, then the fishing year begins using the catch limits and management measures from 2022.

Because this final rule increases the catch limits for several species for 2023, leaving 2022 harvest specifications in and management measures in place could unnecessarily delay fishing opportunities until later in the year, potentially reducing the total catch for these species in 2019. Thus, a delay in effectiveness could ultimately cause economic harm to the fishing industry and associated fishing communities or result in harvest levels inconsistent with the best available scientific information. For example, due to the improved status of sablefish, the Council recommended changes in catch limits and management measures for a number of commercial sectors of the fishery, including higher trip limits for open access fisheries, increased tier limits for the limited entry fixed gear sablefish primary fishery, and more quota pounds for the Shorebased IFQ fishery. Because this final rule decreases catch limits for some species for 2023, leaving 2022 harvest specifications and management measures in place could allow harvest at the beginning of the year to be too high. Thus, a delay in effectiveness could ultimately cause further restrictions or even closures to be necessary later in the year, preventing one of the objectives of the FMP for year-round fishing opportunities to not be met. For example, due to needs to reduce harvest of copper and quillback rockfish, California recreational seasons are shorter and depth restrictions are more restrictive. Because of the potential conservation risk and potential harm to fishing communities that could be caused by delaying the effectiveness of this final rule, NMFS finds there is good cause to waive the 30-day delay in effectiveness.

Pursuant to Executive Order 13175, this rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the PCGFMP. 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. In addition, regulations implementing the PCGFMP establish a procedure by which the tribes with treaty fishing rights in the area covered by the PCGFMP request new allocations or regulations specific to the tribes, in writing, before the first of the two meetings at which the Council considers groundfish management measures. The regulations at 50 CFR 660.50 further direct NMFS to develop tribal allocations and regulations in consultation with the affected tribes. The tribal management measures in this rule have been developed following these procedures. The tribal representative on the Council made a motion to adopt the non-whiting tribal management measures, which was passed by the Council. Those management measures, which were developed and proposed by the tribes, are included in this final rule.

The Council prepared an environmental assessment for Amendment 30 to the PCGFMP and the 2023-24 harvest specifications and management measures, and concluded that there will be no significant impact on the human environment as a result of this rule. A copy of the analysis is available from NMFS (see ADDRESSES ).

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

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 final regulatory flexibility analysis was not required and none was prepared.

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