This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This final rule is issued under Marketing Order No. 920, as amended (7 CFR part 920), regulating the handling of kiwifruit grown in California. Part 920 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and comprises kiwifruit growers operating within the production area, and a public member.

This final rule is also issued under section 8e of the Act (7 U.S.C. 608e-1), which provides that whenever certain specified commodities, including kiwifruit, are regulated under a Federal marketing order, imports of these commodities into the United States are prohibited unless they meet the same or comparable grade, size, quality, or maturity requirements as those in effect for domestically produced commodities.

The Agricultural Marketing Service (AMS) is issuing this final rule in conformance with Executive Orders 12866 and 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

This final rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions would have tribal implications. AMS has determined this final rule is unlikely to have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the United States Department of Agriculture (USDA) a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of the entry of the ruling.

There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of import regulations issued under section 8e of the Act.

Under the provisions of the Order, fresh market shipments of kiwifruit produced in California are required to be inspected and are subject to grade, size, quality, maturity, pack, and container requirements. This final rule revises the minimum size and uniformity requirements for certain varieties of kiwifruit handled under the Order. As required by section 8e of the Act, the revision to the minimum size requirement will also be applied to the import regulations for kiwifruit.

Section 920.51 of the Order provides authority for the Committee to recommend regulations to the Secretary. Section 920.52 of the Order provides authority for the establishment of handling regulations. Further, § 920.53 provides the authority to recommend the modification, suspension, or termination of such regulations when the Committee finds that industry conditions so dictate. Section 920.302 establishes the minimum grade, size, quality, maturity, pack, and container requirements for kiwifruit handled subject to the Order. Under the authority of § 920.53, the Committee determined that the production and marketing conditions for some varieties of kiwifruit have changed and that the handling requirements should be modified accordingly.

Prior to this rule change, the handling regulations required that all varieties of kiwifruit be a minimum Size 45, defined as a maximum of 55 pieces of fruit in an 8-pound sample. In addition, kiwifruit packed in containers were required to be fairly uniform in size.

At its meeting on September 29, 2021, the Committee unanimously recommended modifying the regulations to accommodate varieties of Actinidia chinensis species kiwifruit that are characteristically smaller in size and less uniform than the more common varieties grown in California that are Actinidia deliciosa species. No other species of kiwifruit are known to be grown in California.

This final rule relaxes the minimum size requirement for all varieties of Actinidia chinensis species kiwifruit to Size 49, defined in the requirements as a maximum of 64 pieces of fruit in an 8-pound sample. In addition, the final rule exempts all varieties of Actinidia chinensis species kiwifruit from the requirement that fruit packed in a container be fairly uniform in size.

At the time that the Order's handling regulations were established in 1985, practically all the kiwifruit grown in California were varieties of the Actinidia deliciosa species. As such, the requirements were implemented to accommodate the characteristics of those varieties. Recently, production of varieties of Actinidia chinensis species kiwifruit has been increasing in California. This sector of the industry now accounts for approximately eight percent of the acreage and five percent of the production in the state. Given the natural characteristics of Actinidia chinensis species kiwifruit, the current minimum size and uniformity requirements preclude some high-quality kiwifruit from entering the fresh market. Relaxing the minimum requirements for those varieties will allow growers to market more of their fruit in the fresh market, increasing their total revenue. The change is expected to benefit domestic kiwifruit growers, handlers, and consumers.

Section 8e of the Act provides that when certain domestically produced commodities, including kiwifruit, are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements. Since this action modifies the minimum size requirement for varieties of Actinidia chinensis species kiwifruit under the domestic handling regulations, a corresponding change is made to the import regulations.

Minimum grade, size, quality, and maturity requirements for kiwifruit imported into the United States are currently in effect under § 944.550 (7 CFR 944.550). Paragraph (a) of that section specifies the minimum size requirement. This final rule lowers the minimum size requirement for varieties of Actinidia chinensis species kiwifruit to Size 49, defined as a maximum of 64 pieces of kiwifruit in an 8-pound sample. In accordance with the Act, under the kiwifruit import regulations, imported kiwifruit are not subject to container and pack requirements. Accordingly, the change in the Order's uniformity requirement does not affect the kiwifruit import requirements.

The relaxation in the size requirements for imports of Actinidia chinensis varieties will allow a greater quantity of kiwifruit to be imported. The change is expected to benefit kiwifruit importers and consumers of imported kiwifruit.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Import regulations issued under the Act are based on those established under Federal marketing orders.

There are approximately 133 kiwifruit growers in the production area and 20 handlers subject to regulation under the Order. In addition, there are approximately 80 importers of kiwifruit. Small producers of kiwifruit are defined by the Small Business Administration (SBA) as those having annual receipts less than $3,000,000. Small agricultural service firms, which include kiwifruit handlers and importers, are defined by the SBA as those having annual receipts of less than $30,000,000. The SBA threshold for growers changed in between the proposed and the final rule. Thus, AMS changed the RFA to reflect the new amount in this final rule. The change did not impact the number of growers considered to be small.

The USDA National Agricultural Statistics Service (NASS) reported that total production of California kiwifruit for the 2020-2021 season was 39,760 tons. NASS further reported that the average producer price was $1,920 per ton over that period. Multiplying $1,920 per ton by the production quantity of 39,760 tons yields an annual crop revenue estimate of $76,339,200. The average annual fresh kiwifruit revenue for each of the 133 growers for the 2020-2021 season is therefore calculated to be $573,979 ($76,339,200 divided by 133), which is less than the SBA threshold of $3,000,000 for small producers of kiwifruit. Therefore, on average and given a normal distribution, the majority of growers may be classified as small businesses.

In addition, based on information reported by USDA's Market News Service (Market News), the average Free On Board (F.O.B.) shipping point price for California kiwifruit over the 2020-2021 season was $23.28 per 9 kilogram container (19.8 pounds equivalent). Multiplying $23.28 by the shipment quantity of 4,016,162 containers (39,760 tons times 2,000 pounds per ton divided by 19.8 pounds) yields an annual crop revenue estimate of $93,496,251. The average annual fresh kiwifruit revenue for each of the 20 handlers is therefore calculated to be $4,674,813 ($93,496,251 divided by 20), which is below the SBA threshold of $30,000,000 for agricultural service firms. Therefore, on average and assuming a normal distribution, the majority of the handlers may be classified as small businesses.

Further, USDA's Foreign Agricultural Service reported 80,279 metric tons of kiwifruit were imported during the 2020-2021 season with a reported value of $184,488,000. Using that data, the average revenue for each of the approximately 80 kiwifruit importers would be $2,306,100 ($184,488,000 divided by 80), which is below the $30,000,000 SBA threshold for small agricultural service firms. As such, the majority of kiwifruit importers may be classified as small businesses.

This final rule relaxes the minimum size and uniformity requirements prescribed in the Order's handling regulations. The final rule lowers the minimum size requirement for all varieties of Actinidia chinensis species kiwifruit from Size 45 to 49, defined in the requirements as a maximum of 64 pieces of fruit in an 8-pound sample. In addition, the final rule exempts all varieties of Actinidia chinensis species kiwifruit from the Order's container requirement that fruit be fairly uniform in size.

This action will not impose any additional costs to the industry. It is expected to increase revenue to handlers and growers of Actinidia chinensis species varieties of kiwifruit, as smaller size fruit, and fruit that lacks uniformity, will be allowed to enter the market. The quality of fruit to consumers is not expected to be significantly affected, as relaxing the size and uniformity requirements will not impact the Order's minimum quality requirements. All kiwifruit marketed under the Order will continue to be packed to the minimum grade of KAC No.1.

The Committee considered alternatives to the recommended changes, including taking no action and continuing to regulate according to the requirements as currently established. In addition, the Committee considered lowering the size requirements for all varieties of kiwifruit. However, the Committee determined that the minimum size requirement is effective for Actinidia deliciosa varieties and that it should not be changed. The Committee also considered establishing other minimum sizes for Actinidia chinensis varieties higher and lower than the minimum size recommended but believed that Size 49 will allow more fruit to be marketed and still maintain the high standards of California kiwifruit. Ultimately, the Committee determined that relaxation of the handling regulation, as recommended, is in the best interests of the growers, handlers, and consumers of California kiwifruit and rejected all other alternatives.

Committee meetings were widely publicized throughout the California kiwifruit industry. All interested persons were invited to attend meetings and participate in Committee deliberations. Like all Committee meetings, the September 27, 2021, meeting was a public meeting, and all entities, both large and small, were able to express their views on this issue. Also, the embassies of countries that export kiwifruit to the United States, and known kiwifruit importers, will be notified of this final rule upon its publication. Finally, interested persons were invited to submit comments on the proposed rule, including the regulatory and informational impacts of this action on small businesses.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189, Fruit Crops. No changes in those requirements are necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.

This final rule does not impose any additional reporting or recordkeeping requirements on either small or large kiwifruit handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. AMS has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

A proposed rule concerning this action was published in the Federal Register on June 17, 2022 (87 FR 36412). Copies of the proposed rule were also mailed or sent via email to all California kiwifruit handlers. A copy of the proposed rule was made available through the internet by AMS. A 60-day comment period ending August 16, 2022, was provided for interested persons to respond to the proposal. Three comments were received in favor of the rule. Accordingly, no changes have been made to the rule as proposed.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendations submitted by the Committee and other available information, USDA has determined that this final rule is consistent with and will effectuate the purposes of the Act.

In accordance with section 8e of the Act, the United States Trade Representative has concurred with the issuance of this final rule.

For the reasons set forth in the preamble, the Agricultural Marketing Service amends 7 CFR parts 920 and 944 as follows:

Rural Development is a mission area within USDA comprising the RUS, the Rural Housing Service, and the Rural Business-Cooperative Service. Rural Development's mission is to increase economic opportunity and improve the quality of life for all rural Americans. Rural Development meets its mission by providing loans, loan guarantees, grants, and technical assistance through numerous programs aimed at creating and improving infrastructure, housing, and business throughout rural America. The RUS loan, loan guarantee, and grant programs act as a catalyst for economic and community development. By financing improvements to rural electric, water and waste, and telecommunications and broadband infrastructure, RUS also plays a significant role in improving other measures of quality of life in rural America, including public health and safety, environmental protection and culture and historic preservation.

The ReConnect Program provides loans, grants, and loan/grant combinations to facilitate broadband deployment in rural areas. In facilitating the expansion of broadband services and infrastructure, the program will fuel long-term rural economic development and opportunities in rural America. The final rule to establish and codify requirements for the ReConnect Program was published in the Federal Register on February 26, 2021 (86 FR 11603).

The intent of these proposed changes is to remove outdated requirements, ensure that the requirements in the regulation are clear, accurate as presented and in compliance with federal reporting requirements. These changes will help provide clarity for the applicants as they prepare their applications for the ReConnect Program.

The changes made to 7 CFR part 1740 include:

1. The definition of non-funded service area (NFSA) was updated in § 1740.2 to include telecommunications as well as broadband as a type of service. The program requires applicants to report revenues for all types of data, video, and/or voice services that are offered in the NFSA, so updating the definition should make it clearer that the revenues reported should be inclusive of all services.

2. Several sections were updated to clarify that non-federal entities identified under 2 CFR part 200 should submit a single audit for the previous year from the date the application is submitted while other entities will be required to submit a comparative audit. The language, as currently presented, does not make it clear that non-federal entities, as defined under 2 CFR part 200, that are subject to the Single Audit Act are only required to provide one year of audited financial statements during the years when they have received more than $750,000 in federal assistance. The sections updated to be clear of the application of the Single Audit Act include:

(a) Sections 1740.10(a) and 1740.60(d)(12), which was redesignated as (c)(12), were updated to remove the word “comparative.”

(b) Section 1740.63 was updated to add a new paragraph (a)(1) and revisions were made to paragraph (a)(2).

(c) Section 1740.80 was updated to add a new paragraph (b) and revisions were made to the redesignated paragraph (c).

(3. Section 1740.46 was amended to update the title from “Buy American Requirement” to “The Buy American preference and the Buy American requirement” and to better clarify and explain the Buy American provision requirements of the Infrastructure Investment and Jobs Act.

4. Section 1740.60 was updated to remove paragraph (b) as this information is now considered obsolete in response to the governmentwide initiative to transition to a unique entity identifier (UEI) in lieu of a Dun and Bradstreet number. Paragraph (c), redesignated as paragraph (b), was updated to add the UEI language and to remove the requirement to provide a CAGE code.

5. Section 1740.60(d)(19), redesignated as (c)(19), was updated to make it clear that applicants must have Tribal consent from the appropriate Tribal official if services are proposed on or over Tribal Land.

This final rule has been determined to be not significant for the purposes of Executive Order (E.O.) 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. The Agency has determined that this rule meets the applicable standards provided in section 3 of the Executive Order. In addition, all state and local laws and regulations that conflict with this rule will be preempted. No retroactive effect will be given to this rule.

This rule is excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require a consultation with State and local officials. See the final rule related notice entitled, “Department Programs and Activities Excluded from Executive Order 12372” (50 FR 47034) advising that RUS loans and loan guarantees were not covered by Executive Order 12372.

RUS certifies that this rule will not have a significant economic impact on a substantial number of small entities, as defined in the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The RUS telecommunications program provides loans to borrowers at interest rates and on terms that are more favorable than those generally available from the private sector. RUS borrowers, as a result of obtaining federal financing, receive economic benefits that exceed any direct economic costs associated with complying with RUS regulations and requirements.

In accordance with the National Environmental Policy Act of 1969, Public Law 91-190, this final rule has been reviewed in accordance with 7 CFR part 1970 (“Environmental Policies and Procedures”). The Agency has determined that (i) this action meets the criteria established in 7 CFR 1970.53(f); (ii) no extraordinary circumstances exist; and (iii) the action is not “connected” to other actions with potentially significant impacts, is not considered a “cumulative action” and is not precluded by 40 CFR 1506.1. Therefore, the Agency has determined that the action does not have a significant effect on the human environment, and therefore neither an Environmental Assessment nor an Environmental Impact Statement is required.

The Assistance Listing number assigned to the Rural e-Connectivity Pilot Program is 10.752. The Assistance Listings are available on the internet at https://sam.gov/.

This rule contains no federal mandates (under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995) for state, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of § 202 and 205 of the Unfunded Mandates Reform Act of 1995.

RUS is committed to the E-Government Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

The policies contained in this rule do not have any substantial direct effect on 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. Nor does this rule impose substantial direct compliance costs on state and local governments. Therefore, consultation with the states is not required.

The final rule published February 26, 2021 (86 FR 11603) was reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires federal agencies to consult and coordinate with tribes on a government- to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The amendments in this final rule documenting Tribal support consent and support of proposed projects serving Tribal lands were informed and drafted based on direct feedback from Tribal leaders during Tribal consultation hosted by USDA's Office of Tribal Relations and Rural Development in 2021 and 2022. These changes have also been incorporated into recent ReConnect funding announcements and the same provisions are now included in this final rule for consistency. If Tribal leaders are interested in additional consultation with RUS on these amendments, they are encouraged to contact USDA's Office of Tribal Relations or Rural Development's Tribal Coordinator at: AIAN@usda.gov to request such a consultation.

Rural Development, a mission area for which RUS is an agency, has reviewed this rule in accordance with USDA Regulation 4300-4, Civil Rights Impact Analysis,” to identify any major civil rights impacts the rule might have on program participants on the basis of age, race, color, national origin, sex, or disability. After review and analysis of the rule and available data, it has been determined that based on the analysis of the program purpose, application submission and eligibility criteria, issuance of this Final Rule is not likely to adversely or disproportionately impact very low, low and moderate-income populations, minority populations, women, Indian tribes or persons with disability, by virtue of their race, color, national origin, sex, age, disability, or marital or familial status. No major civil rights impact is likely to result from this rule.

The Information Collection and Recordkeeping requirements contained in this rule have been approved by OMB under OMB Control Number 0572-0152. This final rule contains no new reporting or recording keeping requirements.

Accordingly, for reasons set forth in the preamble, 7 CFR part 1740 is amended to read as follows:

Can persons that engage in negative option marketing practices violate the prohibition on unfair, deceptive, or abusive acts or practices in the Consumer Financial Protection Act (CFPA)?

Yes. “Covered persons” and “service providers” must comply with the prohibition on unfair, deceptive, or abusive acts or practices in the CFPA. 1 Negative option marketing practices may violate that prohibition where a seller (1) misrepresents or fails to clearly and conspicuously disclose the material terms of a negative option program; (2) fails to obtain consumers' informed consent; or (3) misleads consumers who want to cancel, erects unreasonable barriers to cancellation, or fails to honor cancellation requests that comply with its promised cancellation procedures.

As used in this Circular, the phrase “negative option” refers to a term or condition under which a seller may interpret a consumer's silence, failure to take an affirmative action to reject a product or service, or failure to cancel an agreement as acceptance or continued acceptance of the offer.

Negative option programs are common across the market, including in the market for consumer financial products and services, and such programs can take a variety of forms. For example, in automatic renewal plans, consumers' subscriptions are automatically renewed when they expire unless consumers affirmatively cancel their subscriptions by a certain date. In continuity plans, consumers agree in advance to receive a product or service, which they continue to receive until they cancel the agreements. In trial marketing plans, consumers receive products or services for free (or for a reduced fee) for a trial period. After the trial period, consumers are automatically charged a fee (or a higher fee) on a recurring basis unless they affirmatively cancel.

Negative option programs can cause serious harm to consumers who do not wish to receive the products or services for which they are charged. Harm is most likely to occur when sellers mislead consumers about terms and conditions, fail to obtain consumers' informed consent, or make it difficult for consumers to cancel. The Consumer Financial Protection Bureau (CFPB) has received consumer complaints, including complaints from older consumers, about being repeatedly charged for services they did not intend to buy or no longer want to continue purchasing. Some consumers have reported that they were enrolled in subscriptions without knowledge of the program and its cost. 2 Consumers have also complained about the difficulty of cancelling subscription-based services and about charges made to their credit card or bank account after they requested cancellation. 3

In recent decades, the Federal Trade Commission (FTC) has brought numerous enforcement cases challenging harmful negative option practices using its authority under section 5 of the FTC Act, which prohibits unfair or deceptive acts or practices. 4 The FTC's enforcement cases have also frequently relied on the Restore Online Shoppers' Confidence Act (ROSCA)  5 and the Telemarketing Sales Rule (TSR). 6 The FTC recently summarized its enforcement work regarding negative option marketing in a policy statement, which noted that its cases have “involve[d] a range of deceptive and unfair practices, including inadequate disclosures of hidden charges in ostensibly `free' offers and other products or services, enrollment without consumer consent, and inadequate or overly burdensome cancellation and refund procedures.”  7

Since it began enforcement in 2011, the CFPB has brought enforcement actions to halt a variety of harmful negative option practices, which have primarily relied on the CFPA's prohibition on unfair, deceptive, and abusive acts or practices. 8 For example, the CFPB has brought multiple enforcement actions involving optional “add-on” products offered to credit card users, such as debt protection and identity protection products, which featured recurring fees that continued until consumers affirmatively cancelled. 9 In other enforcement actions involving negative option practices, the CFPB has found or alleged that consumer reporting companies, 10 debt relief companies, 11 credit repair companies, 12 payment processors, 13 and service providers  14 have engaged in unfair, deceptive, and abusive acts or practices.

The CFPB has also relied on other Federal consumer financial laws that it enforces to address certain harmful negative option marketing practices. The Electronic Fund Transfer Act (EFTA) and Regulation E prohibit preauthorized electronic fund transfers from a consumer's bank account without written authorization. 15 The TSR also prohibits deceptive acts or practices by telemarketers, including failing to disclose the material terms of a negative option feature of an offer and misrepresenting the total cost to purchase goods or services. 16

Recently, the CFPB and FTC have taken action to combat the rise of digital dark patterns, which are design features used to deceive, steer, or manipulate users into behavior that is profitable for a company, but often harmful to users or contrary to their intent. 17 Dark patterns can be particularly harmful when paired with negative option programs, causing consumers to be misled into purchasing subscriptions and other services with recurring charges and making it difficult for consumers to cancel and avoid such charges. 18

The CFPB is issuing this Circular to emphasize that covered persons and service providers who engage in negative option marketing are required to comply with the CFPA's prohibition on unfair, deceptive, and abusive acts or practices. 19 The CFPB further emphasizes that its approach to negative option marketing is generally in alignment with the FTC's approach to section 5 of the FTC Act as set forth in its recent policy statement. In particular, the CFPB shares the view that a seller offering a negative option program risks violating the law if the seller (1) does not clearly and conspicuously disclose the material terms of the negative option offer to the consumer, (2) does not obtain the consumer's informed consent, or (3) misleads consumers who wish to cancel, erects unreasonable barriers to cancellation, or impedes the effective operation of promised cancellation procedures. 20

Disclosure. Sellers may violate the CFPA's prohibition on deceptive acts or practices if they misrepresent or fail to clearly and conspicuously disclose the material terms of an offer for a product or service with a negative option feature. Under the CFPA, a representation or omission is deceptive if it is likely to mislead a reasonable consumer and is material. 21 A “material” representation or omission “involves information that is important to consumers and, hence, likely to affect their choice of, or conduct regarding, a product.”  22 Where a seller makes a partial disclosure about the nature of a product or service, its failure to disclose other material information may be deceptive. 23 In assessing the meaning of a representation or omission, the CFPB looks to the overall, net impression of the communication, meaning that it considers the context of the entire advertisement, transaction, or course of dealing rather than evaluating statements in isolation. 24

The material terms of a negative option offer would typically include the following, to the extent applicable:

• That the consumer is enrolling in and will be charged for the product or service.

• The amount (or range of amounts) that the consumer will be charged.

• That charges will be on a recurring basis unless the consumer takes affirmative steps to cancel the product or service.

• That, in a trial marketing plan, charges will begin (or increase) after the trial period unless the consumer takes affirmative action. 25

A seller would likely violate the CFPA by misrepresenting or failing to adequately disclose these material terms, as the CFPB's enforcement cases illustrate. For example, the CFPB found that consumer reporting agencies deceptively represented that credit-related products were “free” when, in reality, consumers who signed up for a “free” trial were automatically enrolled in a subscription program with a recurring monthly fee unless they cancelled. 26 In those cases, disclosures about the negative option feature were often displayed in fine print, in low contrast, and were generally placed in a less prominent location, such as the bottom of a web page, grouped with other disclosures. Thus, the disclosures were neither clear nor conspicuous. Similarly, in several credit card add-on cases, the CFPB found that credit card issuers engaged in deceptive marketing and enrollment practices where they did not adequately inform consumers that they were purchasing add-on products or misrepresented the cost of the add-on products. 27

Consent. Sellers engaged in negative option marketing would likely violate the CFPA where they fail to obtain the consumer's informed consent before charging the consumer. 28 Consent will generally not be informed if, for example, a seller mischaracterizes or conceals the negative option feature, provides contradictory or misleading information, or otherwise interferes with the consumer's understanding of the agreement. The CFPB has brought deception and unfairness claims under the CFPA where sellers failed to obtain consumers' informed consent. 29

With respect to deception, as noted, a representation is deceptive if it is likely to mislead a reasonable consumer and is material. 30 In the credit card add-on cases, the CFPB found that credit card issuers engaged in a deceptive practice when the card issuers falsely represented to consumers that they were agreeing to receive information about an add-on product rather than purchasing the product. 31

With respect to unfairness, an act or practice is unfair if it causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers and the injury is not outweighed by countervailing benefits to consumers or to competition. 32 Applying that standard, the CFPB alleged that a debt relief company engaged in an unfair practice by charging consumers on an automatic, recurring basis where the recurring charges were not clearly explained or disclosed to consumers at the time of purchase. 33

Cancellation. It is understandable that sellers will generally prefer to retain their existing customers, but they must do so in a manner that complies with the CFPA. For purposes of the prohibition on deception, certain types of representations are presumed to be material, including express representations and representations regarding costs. 34 Consistent with that principle, the CFPB found that a credit card issuer engaged in a deceptive practice when it represented that consumers could cancel an add-on product “immediately” and with “no questions asked” but then directed sales representatives to repeatedly rebut requests to cancel, with the result that consumers were often unable to cancel unless they demanded cancellation multiple times in succession. 35 The CFPB has also found that sellers engaged in deceptive practices by making misrepresentations about the costs and benefits of their products and services in order to persuade consumers not to cancel. 36

In addition, the CFPB agrees with the FTC that sellers would likely violate the law if they erect unreasonable barriers to cancellation or fail to honor cancellation requests that comply with their promised cancellation procedures. Such conduct would include, for example, “[h]ang[ing] up on consumers who call to cancel; plac[ing] them on hold for an unreasonably long time; provid[ing] false information about how to cancel; or misrepresent[ing] the reasons for delays in processing consumers' cancellation requests.”  37 Depending on the facts and circumstances, such conduct may constitute an unfair, deceptive, or abusive act or practice in violation of the CFPA.

Consumer Financial Protection Circulars are issued to all parties with authority to enforce Federal consumer financial law. The CFPB is the principal Federal regulator responsible for administering Federal consumer financial law, see 12 U.S.C. 5511, including the Consumer Financial Protection Act's prohibition on unfair, deceptive, and abusive acts or practices, 12 U.S.C. 5536(a)(1)(B), and 18 other “enumerated consumer laws,” 12 U.S.C. 5481(12). However, these laws are also enforced by State attorneys general and State regulators, 12 U.S.C. 5552, and prudential regulators including the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, and the National Credit Union Administration. See, e.g., 12 U.S.C. 5516(d), 5581(c)(2) (exclusive enforcement authority for banks and credit unions with $10 billion or less in assets). Some Federal consumer financial laws are also enforceable by other Federal agencies, including the Department of Justice and the Federal Trade Commission, the Farm Credit Administration, the Department of Transportation, and the Department of Agriculture. In addition, some of these laws provide for private enforcement.

Consumer Financial Protection Circulars are intended to promote consistency in approach across the various enforcement agencies and parties, pursuant to the CFPB's statutory objective to ensure Federal consumer financial law is enforced consistently. 12 U.S.C. 5511(b)(4).

Consumer Financial Protection Circulars are also intended to provide transparency to partner agencies regarding the CFPB's intended approach when cooperating in enforcement actions. See, e.g., 12 U.S.C. 5552(b) (consultation with CFPB by State attorneys general and regulators); 12 U.S.C. 5562(a) (joint investigatory work between CFPB and other agencies).

Consumer Financial Protection Circulars are general statements of policy under the Administrative Procedure Act. 5 U.S.C. 553(b). They provide background information about applicable law, articulate considerations relevant to the Bureau's exercise of its authorities, and, in the interest of maintaining consistency, advise other parties with authority to enforce Federal consumer financial law. They do not restrict the Bureau's exercise of its authorities, impose any legal requirements on external parties, or create or confer any rights on external parties that could be enforceable in any administrative or civil proceeding. The CFPB Director is instructing CFPB staff as described herein, and the CFPB will then make final decisions on individual matters based on an assessment of the factual record, applicable law, and factors relevant to prosecutorial discretion.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

The FAA published a notice of proposed rulemaking (NPRM) for Docket No. FAA-2022-0540 in the Federal Register (87 FR 32378; May 31, 2022), amending Alaskan V-531 due to the planned decommissioning of the Point Hope, AK, NDB NAVAID. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

Alaskan VOR Federal airways are published in paragraph 6010(b) 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 Alaskan VOR Federal airway action listed in this document will be published subsequently in FAA Order JO 7400.11.

The NPRM proposed amending Alaskan V-531 to read: “From Fairbanks, AK, via Tanana, AK; Huslia, AK; Selawik, AK; to Kotzebue, AK”. Use of the word “via” to describe the change was in error. To conform to the FAA's preferred language, the final rule removes the “via” from the regulatory text. The route remains the same as proposed; the final rule does not incorporate any substantive changes to the airway.

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

This action amends 14 CFR part 71 by amending Alaskan V-531 due to the planned decommissioning of the Point Hope, AK, NDB NAVAID. The airway amendment action is described below.

Alaskan V-531. Alaskan V-531 extends between the Fairbanks, AK, VOR/Tactical Air Navigation (VORTAC) and the Point Hope, AK, NDB. The airway segment between the Kotzebue, AK, VOR/Distance Measuring Equipment (VOR/DME) and the Point Hope, AK, NDB is removed. As amended, the airway is changed to extend between the Fairbanks VORTAC and the Kotzebue VOR/DME.

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

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

The FAA has determined that this action of amending Alaskan V-531 due to the planned decommissioning of the Point Hope, AK, NDB NAVAID, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points), and paragraph 5-6.5k, which categorically excludes from further environmental impact review the publication of existing air traffic control procedures that do not essentially change existing tracks, create new tracks, change altitude, or change concentration of aircraft on these tracks. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

The FAA published a notice of proposed rulemaking (NPRM) for Docket No. FAA-2022-1115 in the Federal Register (87 FR 58041; September 23, 2022), amending VOR Federal airway V-181 and RNAV route T-400 and revoking VOR Federal airway V-250 and the Yankton, SD, Low Altitude Reporting Point due to the planned decommissioning of the VOR portion of the Yankton, SD, VOR/DME NAVAID. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

VOR Federal airways are published in paragraph 6010(a), United States Area Navigation Routes (T-routes) are published in paragraph 6011, and Domestic Low Altitude Reporting Points are published in paragraph 7001 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 Air Traffic Service (ATS) route and low altitude reporting point actions listed in this document will be published subsequently in FAA Order JO 7400.11.

Subsequent to the NPRM, the FAA published a rule for Docket No. FAA-2022-0248 in the Federal Register (87 FR 64695; October 26, 2022), amending VOR Federal airway V-181 by removing the airway segment between the Sioux Falls, SD, VOR/Tactical Air Navigation (VORTAC) and the Fargo, ND, VOR/DME. That airway amendment, effective December 29, 2022, is included in this rule.

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

This action amends 14 CFR part 71 by amending VOR Federal airway V-181 and RNAV route T-400 and revoking VOR Federal airway V-250 and the Yankton, SD, low altitude reporting point. The ATS route and low altitude reporting point amendments and revocations are due to the planned decommissioning of the Yankton, SD, VOR. The ATS route and low altitude reporting point actions are described below.

V-181: V-181 extends between the Kirksville, MO, VORTAC and the Sioux Falls, SD, VORTAC; and between the Fargo, ND, VOR/DME and the Grand Forks, ND, VOR/DME. The airway segment overlying the Yankton VOR/DME between the Norfolk, NE, VOR/DME and the Sioux Falls, SD, VORTAC is removed. As amended, the airway is changed to extend between the Kirksville, MO, VORTAC and the Norfolk, NE, VOR/DME and between the Fargo, ND, VOR/DME and the Grand Forks, ND, VOR/DME.

V-250: V-250 extends between the O'Neill, NE, VORTAC and the Yankton, SD, VOR/DME. The airway is removed in its entirety.

T-400: T-400 extends between the LLUKY, NE, waypoint (WP) and the ZOSAG, MN, WP. The IMUPP, SD, WP on the route is replaced with the FIITS, SD, WP to define the route crossing point between T-400 and T-405. The full T-400 route description is listed in the amendments to part 71 as set forth below.

Yankton, SD: The Yankton, SD, low altitude reporting point is removed.

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

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

The FAA has determined that this action of amending VOR Federal airway V-181 and RNAV route T-400 and revoking VOR Federal airway V-250 and the Yankton, SD, Low Altitude Reporting Point, due to the planned decommissioning of the VOR portion of the Yankton, SD, VOR/DME NAVAID, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points); paragraph 5-6.5b, which categorically excludes from further environmental impact review actions regarding establishment of jet routes and Federal airways (see 14 CFR 71.15, Designation of jet routes and VOR Federal airways); paragraph 5-6.5i, which categorically excludes from further environmental impact review the establishment of new or revised air traffic control procedures conducted at 3,000 feet or more above ground level (AGL); procedures conducted below 3,000 feet AGL that do not cause traffic to be routinely routed over noise sensitive areas; modifications to currently approved procedures conducted below 3,000 feet AGL that do not significantly increase noise over noise sensitive areas; and increases in minimum altitudes and landing minima; and paragraph 5-6.5k, which categorically excludes from further environmental impact review the publication of existing air traffic control procedures that do not essentially change existing tracks, create new tracks, change altitude, or change concentration of aircraft on these tracks. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me by the Administrator, part 95 of the Federal Aviation Regulations (14 CFR part 95) is amended as follows effective at 0901 UTC, June 03, 2010.

Section 7A of the Clayton Act (the “Act”) requires the parties to certain mergers or acquisitions to file with the Commission and the Assistant Attorney General and wait a specified period before consummating the proposed transaction to allow the Antitrust Agencies to conduct their initial review of a proposed transaction's competitive impact. The reporting requirement and the waiting period that it triggers are intended to enable the Agencies to determine whether a proposed merger or acquisition may violate the antitrust laws if consummated and, when appropriate, to seek a preliminary injunction in Federal court to prevent consummation.

Section 7A(d)(1) of the Act, 15 U.S.C. 18a(d)(1), directs the Commission, with the concurrence of the Assistant Attorney General, in accordance with the Administrative Procedure Act, 5 U.S.C. 553, to require that premerger notification be in such form and contain such information and documentary material as may be necessary and appropriate to determine whether the proposed transaction may, if consummated, violate the antitrust laws. Section 7A(d)(2) of the Act, 15 U.S.C. 18a(d)(2), grants the Commission, with the concurrence of the Assistant Attorney General, in accordance with 5 U.S.C. 553, the authority to define the terms used in the Act and prescribe such other rules as may be necessary and appropriate to carry out the purposes of section 7A of the Act. Pursuant to that authority, the Commission, with the concurrence of the Assistant Attorney General, developed the Rules, codified in 16 CFR parts 801, 802 and 803, and the appendices to part 803, the Notification and Report Form for Certain Mergers and Acquisitions (“HSR Form”) and Instructions to the Notification and Report Form for Certain Mergers and Acquisitions (“Instructions”), to govern the form of premerger notification to be provided by merging parties.

The Commission is amending parts 801 and 803 of the rules and the HSR Form and Instructions to make the ministerial changes required to conform with the fees and fee tiers established by the 2022 Amendments.

In 1990, section 605 of Public Law 101-162, 103 Stat. 1031 (15 U.S.C. 18a note), first required the Federal Trade Commission to assess and collect filing fees from persons acquiring voting securities or assets under the Act. Fee tiers, rather than a single fee, were established in 2000 by section 630(b) of Public Law 106-553, 114 Stat. 2762, 2762A-109. On December 29, 2022, the President signed into law the Consolidated Appropriations Act, 2023, which included the 2022 Amendments. The 2022 Amendments, among other things, amend these fees and fee tiers. See Public Law 117-328, Div. GG, 136 Stat. 4459.

Prior to enactment of the 2022 Amendments, filers were required to pay $45,000; $125,000; or $280,000 per transaction, depending on the total value of the transaction. While these fees have remained constant since adoption in 2000, the value of the acquisition to which they apply had adjusted annually since 2005 to reflect changes in the gross national product (“GNP”). 1

The new fee structure enacted by the 2022 Amendments includes six, rather than three, tiers. The filing fee has been lowered for certain transactions, but increased for others, particularly for acquisitions valued at more than $1 billion. As enacted, the fee thresholds for 2023 are as follows:  2

Under the Aluminum Import Monitoring and Analysis (AIM) system, Commerce maintains an aluminum import licensing program and a public AIM monitor, available through the AIM system website. Additionally, importers, custom brokers, or their agents are required to apply for and obtain an import license for each entry of covered aluminum products through the AIM system website. To obtain an import license, each applicant must identify, among other requirements, the country or countries where the largest and second largest volume of primary aluminum used in the manufacture of the imported aluminum product was smelted and the country where the aluminum product was most recently cast.

On December 23, 2020, Commerce published the final rule adopting regulations establishing the AIM system in 19 CFR part 361 (85 FR 83804; December 23, 2020). The original effective date for the final rule and part 361 was January 25, 2021, requiring license numbers to be reported to U.S. Customs and Border Protection (CBP) on entry summary documentation, or electronic equivalent, for covered aluminum products on or after this date. On January 4, 2021, Commerce launched the AIM system website and allowed for importers, customs brokers and their agents to begin applying for and obtaining their import licenses.

However, on January 27, 2021, Commerce published a notification that it was delaying the effective date of the final rule and part 361 until March 29, 2021 (86 FR 7237). In that notification, Commerce also opened a 30-day comment period to solicit public comment on all aspects of the final rule, the AIM system, and part 361. The comment period closed on February 26, 2021. On April 1, 2021, Commerce published an additional notification stating it was delaying compliance with most aspects of the final rule and part 361 by an additional 90 days, by staying part 361 (86 FR 17058). In that notification, Commerce explained that the delay would allow Commerce time to finalize the license application system and to provide both the public and CBP with sufficient advance notice of the new compliance date. Commerce also explained that the delay would allow Commerce to consider and respond, as appropriate, to the comments received during the January 27, 2021, to February 26, 2021, comment period.

On May 5, 2021, Commerce published another notification, announcing that it would be lifting the stay of the final rule on June 28, 2021, and addressing the comments that it received during the most recent comment period (86 FR 27513). Accordingly, as of June 28, 2021, Commerce required compliance with most aspects of the final rule and part 361. Additionally, consistent with the final rule and the May 5, 2021 notification, Commerce seeks comments from the public on potential improvements or changes to the AIM system in a subsequent document after the AIM system is in place.

Consistent with the May 5, 2021 notification, Commerce began requiring importers to submit aluminum import license numbers to CBP for all entries of covered aluminum products on June 28, 2021. 1 Any importer, importing company, customs broker or importer's agent with a U.S. street address (as required for account creation) can register and gain access to the automatic aluminum import license issuance system. Once all necessary license information has been provided, licenses are issued automatically and instantaneously.

Most of the information required for license applications is separately required by CBP as part of the Form 7501, Customs Entry Summary. For certain fields, unique supply chain information was also required for the first time under the AIM system. Specifically, as described in the final rule and as stated in 19 CFR 361.103(c)(1)(xiii), (xiv), and (xv), among other requirements, Commerce requires the applicant to provide the following information: (1) the country where the largest volume of primary aluminum used in the manufacture of the imported aluminum product was smelted (referred to as “country of smelt for the largest volume of primary aluminum” or “country of smelt” as shorthand); (2) the country where the second largest volume of primary aluminum used in the manufacture of the imported aluminum product was smelted (referred to as “country of smelt for the second largest volume of primary aluminum” or “second country of smelt” as shorthand); and (3) the country where the aluminum used in the imported aluminum product was most recently cast (referred to as “country of most recent cast” for shorthand). These fields are further described under 19 CFR 361.103(c)(3).

Section 361.103(c)(3)(i)(A) defines the field for the country of smelt for the largest volume of primary aluminum as the country where the largest volume of new aluminum metal is produced from alumina (or aluminum oxide) by the electrolytic Hall-Héroult process. Recognizing that importers may have some initial difficulties in securing this information, 19 CFR 361.103(c)(3)(i)(C) allowed filers to state “unknown” for this field on the license application on a temporary basis through June 28, 2022. Similar to the country of smelt for the largest volume of primary aluminum field, 19 CFR 361.103(c)(3)(ii)(A) defines the field for the country of smelt for the second largest volume of primary aluminum as the country where the second largest volume of new aluminum metal is produced from alumina (or aluminum oxide) by the electrolytic Hall-Héroult process. Section 361.103(c)(3)(ii)(C) also allowed filers to state “unknown” in this field on a temporary basis through June 28, 2022. Effective June 29, 2022, filers may no longer state “unknown” for these fields.

Commerce currently publishes: (1) the U.S. Aluminum Import Monitor, which combines data from Census and import licenses and is updated weekly; (2) the Country of Most Recent Cast Dashboard with information on the country where imported aluminum products were most recently cast; (3) the Country of Smelt Dashboard with information on the country where the primary aluminum was smelted; and (4) the Global Aluminum Trade Monitor.

Currently, the AIM licensing system receives approximately 750 licenses per day. These licenses are reviewed, aggregated and published in the public AIM monitor on a weekly basis. This monitor allows for near real-time monitoring of aluminum imports. The import monitoring system on the public AIM system website reports certain information including country of origin, country of smelt, country of most recent cast, relevant aluminum product grouping, etc., and includes import quantity (metric tons), customs value (U.S. dollar, USD), and average unit value (USD/metric ton). Prior to releasing new data, Commerce engages in an extensive review of all new licenses to identify potentially erroneous applications and contacts applicants with questions. Commerce has also engaged in extensive industry outreach to educate applicants on the required licensing fields, particularly regarding the country of smelt and country of most recent cast fields, to ensure accurate data quality in the AIM monitors.

The AIM monitors are collectively one of the most frequently visited parts of the International Trade Administration website, typically being viewed over 5,000 times per week.

Now that 19 CFR part 361 has been fully in effect since June 29, 2022, and the Country of Smelt Dashboard was released in September 2022, Commerce is seeking additional comment from the public on potential improvements or changes to the system. Parties may also provide further comment on any issue discussed in the final rule, the May 5, 2021, notification or any topic related to the AIM system. Responses to this RFI will inform Commerce's policies and procedures related to the AIM system moving forward.

Section 701 of the Bipartisan Budget Act of 2015, Public Law 114-74 (Nov. 2, 2015) (“BBA”), 28 U.S.C. 2461 note, substantially revised the prior provisions of the Federal Civil Monetary Penalties Inflation Adjustment Act of 1990, Public Law 101-410 (the “Inflation Adjustment Act”), and substituted a different statutory formula for calculating inflation adjustments on an annual basis.

In accordance with the provisions of the BBA, on June 30, 2016 (81 FR 42491), the Department of Justice published an interim rule (“June 2016 interim rule”) to adjust for inflation the civil monetary penalties assessed or enforced by components of the Department after August 1, 2016, with respect to violations occurring after November 2, 2015, the date of enactment of the BBA. Readers may refer to the Supplementary Information (also known as the preamble) of the Department's June 2016 interim rule for additional background information regarding the statutory authority for adjustments of civil monetary penalty amounts to take account of inflation and the Department's past implementation of inflation adjustments. The June 2016 interim rule was finalized without change by the publication of a final rule on April 5, 2019 (84 FR 13525).

After the initial adjustments in 2016, the BBA also provides for agencies to adjust their civil penalties on January 15 of each year to account for inflation during the preceding year, rounded to the nearest dollar. Accordingly, on February 3, 2017 (82 FR 9131), and on January 29, 2018 (83 FR 3944), the Department published final rules pursuant to the BBA to make annual inflation adjustments in the civil monetary penalties assessed or enforced by components of the Department after those dates, with respect to violations occurring after November 2, 2015.

The Department has continued to promulgate rules adjusting the civil money penalties for inflation thereafter. Most recently, the Department published a final rule on May 5, 2022 (87 FR 27513), to adjust the civil money penalties to account for inflation occurring since 2021.

As required, the Department is publishing this final rule to adjust for 2023 the Department's current civil penalties. Under the statutory formula, the adjustments made by this rule are based on the Bureau of Labor Statistics' Consumer Price Index for October 2022. The OMB Memorandum for the Heads of Executive Departments and Agencies M-23-05 (Dec. 15, 2022) https://www.whitehouse.gov/wp-content/uploads/2022/12/M-23-05-CMP-CMP-Guidance.pdf (last visited Dec. 29, 2022), instructs that the applicable inflation factor for this adjustment is 1.07745.

Accordingly, this rule adjusts the civil penalty amounts in 28 CFR 85.5 by applying this inflation factor mechanically to each of the civil penalty amounts listed (rounded to the nearest dollar).

Example:

• In 2016, the Program Fraud Civil Remedies Act penalty was increased to $10,781 in accordance with the adjustment requirements of the BBA.

• For 2017, where the applicable inflation factor was 1.01636, the existing penalty of $10,781 was multiplied by 1.01636 and revised to $10,957 (rounded to the nearest dollar).

• For 2018, where the applicable inflation factor is 1.02041, the existing penalty of $10,957 was multiplied by 1.02041 and revised to $11,181 (rounded to the nearest dollar).

• Had an adjustment rule been published in 2019, where the applicable inflation factor was 1.02041, the existing penalty of $11,181 would have been multiplied by 1.02522 and revised to $11,463 (rounded to the nearest dollar).

• For the final rule in 2020 (in which the ending 2019 penalty amount calculations were used as the starting penalty amounts for purposes of calculation), the starting penalty of $11,463 was multiplied by 1.01764 and revised to $11,665 (rounded to the nearest dollar.)

• For the final rule in 2021, where the applicable inflation factor was 1.01182, the existing penalty of $11,665 was multiplied by 1.01182 and revised to $11,803 (rounded to the nearest dollar).

• For the final rule in 2022, where the applicable inflation factor was 1.06222, the existing penalty of $11,803 was multiplied by 1.06222 and revised to $12,537 (rounded to the nearest dollar).

• For this final rule in 2023, where the applicable inflation factor is 1.07745 the existing penalty of $12,537 is multiplied by 1.07745 and revised to $13,508 (rounded to the nearest dollar).

This rule adjusts for inflation civil monetary penalties within the jurisdiction of the Department of Justice for purposes of the Inflation Adjustment Act, as amended. Other agencies are responsible for the inflation adjustments of certain other civil monetary penalties that the Department's litigating components bring suit to collect. The reader should consult the regulations of those other agencies for inflation adjustments to those penalties.

Under this rule, the adjusted civil penalty amounts for 2023 are applicable only to civil penalties assessed after January 30, 2023, with respect to violations occurring after November 2, 2015, the date of enactment of the BBA.

The penalty amounts set forth in the existing provisions of 28 CFR 85.5, and its accompanying table, are applicable to all covered civil penalties assessed after August 1, 2016, and on or before January 30, 2023, with respect to violations occurring after November 2, 2015.

The revised table in this rule lists the civil penalty amounts as adjusted in 2023, 2022, 2021, and 2020. For penalties assessed prior to the adjustment rule adopted in 2020, section 85.5(c) of this rule directs readers back to the 2018 version of the rule, as published in the Federal Register , which sets forth the adjusted civil penalty amounts for penalties assessed prior to the 2020 adjustments. 83 FR 3944 (Jan. 29, 2018).

Civil penalties for violations occurring on or before November 2, 2015, and assessments made on or before August 1, 2016, will continue to be subject to the civil monetary penalty amounts set forth in the Department's regulations in 28 CFR parts 20, 22, 36, 68, 71, 76, and 85 as such regulations were in effect prior to August 1, 2016 (or as set forth by statute if the amount had not yet been adjusted by regulation prior to August 1, 2016). See 83 FR 3944.

The BBA provides that, for each annual adjustment made after the initial adjustments of civil penalties in 2016, the head of an agency shall adjust the civil monetary penalties each year notwithstanding 5 U.S.C. 553. Accordingly, this rule is being issued as a final rule without prior notice and public comment, and without a delayed effective date.

Only those entities that are determined to have violated Federal law and regulations would be affected by the increase in the civil penalty amounts made by this rule. A Regulatory Flexibility Act analysis is not required for this rule because publication of a notice of proposed rulemaking was not required. See 5 U.S.C. 603(a).

This final rule has been drafted in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), The Principles of Regulation, and in accordance with Executive Order 13563, “Improving Regulation and Regulatory Review,” section 1, General Principles of Regulation. Executive Orders 12866 and 13563 direct agencies, in certain circumstances, 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).

The Department of Justice has determined that this rule is not a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” section 3(f), and, accordingly, this rule has not been reviewed by the Office of Management and Budget. This final rule implements the BBA by making an across-the-board adjustment of the civil penalty amounts in 28 CFR 85.5 to account for inflation since the adoption of the Department's final rule published on May 9, 2022 (87 FR 27513).

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (as adjusted for inflation), and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by the Congressional Review Act, 5 U.S.C. 804.

Under rulemaking authority vested in the Attorney General in 5 U.S.C. 301; 28 U.S.C. 509, 510 and delegated to the Assistant Attorney General, Office of Legal Policy, by A.G. Order No. 5328-2022, and for the reasons set forth in the preamble, chapter I of title 28 of the Code of Federal Regulations is amended as follows:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) because it is impracticable. This is an emergency response to a vessel grounding and immediate action is needed to respond to potential safety hazards associated with the emergency oil recovery and vessel salvage operations. It is impracticable to publish an NPRM because we must establish this safety zone by January 23, 2023.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest because immediate action is needed to ensure the safety of persons, vessels, and the marine environment in the vicinity of Chinese Harbor during emergency oil recovery and vessel salvage operations.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231) and 46 U.S.C. 70011(b)(3). The Captain of the Port Los Angeles—Long Beach (COTP) has determined that potential hazards associated with emergency oil recovery and vessel salvage operations will be a safety concern for anyone within a 2500-foot radius of the grounded fishing vessel in Chinese Harbor. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while oil recovery and vessel salvage operations take place in the vicinity of Chinese Harbor.

This rule establishes a safety zone from January 23, 2023, through January 30, 2023. The safety zone will cover all navigable waters from the surface to the sea floor in and around Chinese Harbor from the location of the commercial fishing vessel SPERANZA MARIE (Official Number 643138), currently on the shoreline at 34°01.87′ N, 119°36.25′ W and extending out along a 2500-foot radius from the vessel. These coordinates are based on North American Datum of 1983. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or their designated representative. Sector Los Angeles—Long Beach may be contacted on VHF-FM Channel 16 or (310) 521-3801. The marine public will be notified of the safety zone via Broadcast Notice to Mariners.

Designated representative means a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel designated by or assisting the COTP in the enforcement of the safety zone.

If the COTP determines that the zone need not be enforced during this entire period, the Coast Guard will announce via Broadcast Notice to Mariners when the zone will no longer be subject to enforcement.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. This rule impacts an area of 2500-yards during for 07 days during the month of January 2023. Vessel traffic will be able to safely transit around this safety zone, which will impact a small, designated area of Chinese Harbor, Santa Cruz Island, CA.

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

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

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

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

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01, Rev. 1, associated implementing instructions, and COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone encompassing an area extending 2500-feet out from a grounded vessel in vicinity of Chinese Harbor and will last only while salvage operations are ongoing. It is categorically excluded from further review under paragraph L60, in Appendix A, Table 1 of DHS Instruction Manual 023-001-01, Rev. 1.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

The Coast Guard will enforce regulations in 33 CFR 165.508 for the zone locations identified in paragraph (a)(6) from 9 a.m. on February 7, 2023, to 2 a.m. on February 8, 2023. This action is being taken to protect government officials, mitigate potential terrorist acts and incidents, and enhance public and maritime safety and security immediately before, during, and after this event. Our regulations for the Security Zone; Potomac River and Anacostia River, and adjacent waters; Washington, DC, § 165.508(a)(6), specifies the location for this security zone as an area that includes all navigable waters described in paragraphs (a)(1) through (3), which includes Zones 1, 2, and 3.

• Security Zone 1, paragraph (a)(1); all navigable waters of the Potomac River, from shoreline to shoreline, bounded to the north by the Francis Scott Key (US-29) Bridge, at mile 113, and bounded to the south by a line drawn from the Virginia shoreline at Ronald Reagan Washington National Airport, at 38°51′21.3″ N, 077°02′00.0″ W, eastward across the Potomac River to the District of Columbia shoreline at Hains Point at position 38°51′24.3″ N, 077°01′19.8″ W, including the waters of the Boundary Channel, Pentagon Lagoon, Georgetown Channel Tidal Basin, and Roaches Run.

• Security Zone 2, paragraph (a)(2); all navigable waters of the Anacostia River, from shoreline to shoreline, bounded to the north by the John Philip Sousa (Pennsylvania Avenue) Bridge, at mile 2.9, and bounded to the south by a line drawn from the District of Columbia shoreline at Hains Point at position 38°51′24.3″ N, 077°01′19.8″ W, southward across the Anacostia River to the District of Columbia shoreline at Giesboro Point at position 38°50′52.4″ N, 077°01′10.9″ W, including the waters of the Washington Channel.

• Security Zone 3 paragraph (a)(3); all navigable waters of the Potomac River, from shoreline to shoreline, bounded to the north by a line drawn from the Virginia shoreline at Ronald Reagan Washington National Airport, at 38°51′21.3″ N, 077°02′00.0″ W, eastward across the Potomac River to the District of Columbia shoreline at Hains Point at position 38°51′24.3″ N, 077°01′19.8″ W, thence southward across the Anacostia River to the District of Columbia shoreline at Giesboro Point at position 38°50′52.4″ N, 077°01′10.9″ W, and bounded to the south by the Woodrow Wilson Memorial (I-95/I-495) Bridge, at mile 103.8.

During the enforcement period, as specified in § 165.508(b), entry into or remaining in these zones is prohibited unless authorized by the Coast Guard Captain of the Port Maryland-National Capital Region. Public vessels and vessels already at berth at the time the security zone is implemented do not have to depart the security zone. All vessels underway within the security zone at the time it is implemented are to depart the zone at the time the security zone is implemented. To seek permission to transit the zone, the Captain of the Port Maryland-National Capital Region can be contacted at telephone number (410) 576-2693 or on Marine Band Radio, VHF-FM channel 16 (156.8 MHz). Coast Guard vessels enforcing this zone can be contacted on Marine Band Radio, VHF-FM channel 16 (156.8 MHz). The Coast Guard may be assisted by other Federal, state or local law enforcement agencies in enforcing this regulation. If the Captain of the Port or his designated on-scene patrol personnel determines the security zone need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to suspend enforcement and grant general permission to enter the security zone.

In addition to this notice of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners, and marine information broadcasts.

A CMP is defined in the Inflation Adjustment Act (28 U.S.C. 2461 note) as any penalty, fine, or other sanction that is (1) for a specific monetary amount as provided by Federal law, or has a maximum amount provided for by Federal law; (2) assessed or enforced by an agency pursuant to Federal law; and (3) assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.

The Inflation Adjustment Act provides for the regular evaluation of CMPs to ensure that they continue to maintain their deterrent value. The Inflation Adjustment Act required that each agency issue regulations to adjust its CMPs beginning in 1996 and at least every four years thereafter. The Department published its most recent cost adjustment to its CMPs in the Federal Register on April 20, 2022 (87 FR 23450), and those adjustments became effective on the date of publication.

The 2015 Act (section 701 of Pub. L. 114-74) amended the Inflation Adjustment Act to improve the effectiveness of CMPs and to maintain their deterrent effect.

The 2015 Act requires agencies to: (1) adjust the level of CMPs with an initial “catch-up” adjustment through an interim final rule (IFR); and (2) make subsequent annual adjustments for inflation. Catch-up adjustments are based on the percentage change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the year the penalty was last adjusted by a statute other than the Inflation Adjustment Act, and the October 2015 CPI-U. Annual inflation adjustments are based on the percentage change between the October CPI-U preceding the date of each statutory adjustment, and the prior year's October CPI-U. 1 The Department published an IFR with the initial “catch-up” penalty adjustment amounts on August 1, 2016 (81 FR 50321).

In these final regulations, based on the CPI-U for the month of October 2022, not seasonally adjusted, we are annually adjusting each CMP amount by a multiplier for 2023 of 1.07745, as directed by the Office of Management and Budget (OMB) Memorandum No. M-23-05 issued on December 15, 2022.

The following analysis calculates new CMPs for penalty statutes in the order in which they appear in 34 CFR 36.2. The penalty amounts are being adjusted up based on the multiplier of 1.07745 provided in OMB Memorandum No. M-23-05.

Statute: 20 U.S.C. 1015(c)(5).

Current Regulations: The CMP for 20 U.S.C. 1015(c)(5) (section 131(c)(5) of the Higher Education Act of 1965, as amended (HEA)), as last set out in statute in 1998 (Pub. L. 105-244, title I, section 101(a), October 7, 1998, 112 Stat. 1602), is a fine of up to $25,000 for failure by an institution of higher education (IHE) to provide information on the cost of higher education to the Commissioner of Education Statistics. In the 2022 final rule, we increased this amount to $42,163.

New Regulations: The new penalty for this section is $45,429.

Reason: Using the multiplier of 1.07745 from OMB Memorandum No. M-23-05, the new penalty is calculated as follows: $42,163 × 1.07745 = $45,428.52, which makes the adjusted penalty $45,429, when rounded to the nearest dollar.

Statute: 20 U.S.C. 1022d(a)(3).

Current Regulations: The CMP for 20 U.S.C. 1022d(a)(3) (section 205(a)(3) of the HEA), as last set out in statute in 2008 (Pub. L. 110-315, title II, section 201(2), August 14, 2008, 122 Stat. 3147), is a fine of up to $27,500 for failure by an IHE to provide information to the State and the public regarding its teacher-preparation programs. In the 2022 final rule, we increased this amount to $35,119.

New Regulations: The new penalty for this section is $37,839.

Reason: Using the multiplier of 1.07745 from OMB Memorandum No. M-23-05, the new penalty is calculated as follows: $35,119 × 1.07745 = $37,838.96, which makes the adjusted penalty $37,839, when rounded to the nearest dollar.

Statute: 20 U.S.C. 1082(g).

Current Regulations: The CMP for 20 U.S.C. 1082(g) (section 432(g) of the HEA), as last set out in statute in 1986 (Pub. L. 99-498, title IV, section 402(a), October 17, 1986, 100 Stat. 1401), is a fine of up to $25,000 for violations by lenders and guaranty agencies of Title IV of the HEA, which authorizes the Federal Family Education Loan Program. In the 2022 final rule, we increased this amount to $62,689.

New Regulations: The new penalty for this section is $67,544.

Reason: Using the multiplier of 1.07745 from OMB Memorandum No. M-23-05, the new penalty is calculated as follows: $62,689 × 1.07745 = $67,544.26, which makes the adjusted penalty $67,544, when rounded to the nearest dollar.

Statute: 20 U.S.C. 1094(c)(3)(B).

Current Regulations: The CMP for 20 U.S.C. 1094(c)(3)(B) (section 487(c)(3)(B) of the HEA), as set out in statute in 1986 (Pub. L. 99-498, title IV, section 407(a), October 17, 1986, 100 Stat. 1488), is a fine of up to $25,000 for an IHE's violation of title IV of the HEA or its implementing regulations. Title IV authorizes various programs of student financial assistance. In the 2022 final rule, we increased this amount to $62,689.

New Regulations: The new penalty for this section is $67,544.

Reason: Using the multiplier of 1.07745 from OMB Memorandum No. M-23-05, the new penalty is calculated as follows: $62,689 × 1.07745 = $67,544.26, which makes the adjusted penalty $67,544, when rounded to the nearest dollar.

Statute: 20 U.S.C. 1228c(c)(2)(E).

Current Regulations: The CMP for 20 U.S.C. 1228c(c)(2)(E) (section 429 of the General Education Provisions Act), as set out in statute in 1994 (Pub. L. 103-382, title II, section 238, October 20, 1994, 108 Stat. 3918), is a fine of up to $1,000 for an educational organization's failure to disclose certain information to minor students and their parents. In the 2022 final rule, we increased this amount to $1,850.

New Regulations: The new penalty for this section is $1,993.

Reason: Using the multiplier of 1.07745 from OMB Memorandum No. M-23-05, the new penalty is calculated as follows: $1,850 × 1.07745 = $1,993.28, which makes the adjusted penalty $1,993, when rounded to the nearest dollar.

Statute: 31 U.S.C. 1352(c)(1) and (c)(2)(A).

Current Regulations: The CMPs for 31 U.S.C. 1352(c)(1) and (c)(2)(A), as set out in statute in 1989 (Pub. L. 101-121, title III, section 319(a)(1), October 23, 1989, 103 Stat. 750), are a fine of $10,000 to $100,000 for recipients of Government grants, contracts, etc. that improperly lobby Congress or the executive branch with respect to the award of Government grants and contracts. In the 2022 final rule, we increased these amounts to $22,021 to $220,213.

New Regulations: The new penalties for these sections are $23,727 to $237,268.

Reason: Using the multiplier of 1.07745 from OMB Memorandum No. M-23-05, the new minimum penalty is calculated as follows: $22,021 × 1.07745 = $23,726.52, which makes the adjusted penalty $23,727, when rounded to the nearest dollar. The new maximum penalty is calculated as follows: $220,213 × 1.07745 = $237,268.49, which makes the adjusted penalty $237,268, when rounded to the nearest dollar.

Statute: 31 U.S.C. 3802(a)(1) and (a)(2).

Current Regulations: The CMPs for 31 U.S.C. 3802(a)(1) and (a)(2), as set out in statute in 1986 (Pub. L. 99-509, title VI, section 6103(a), Oct. 21, 1986, 100 Stat. 1937), are a fine of up to $5,000 for false claims and statements made to the Government. In the 2022 final rule, we increased this amount to $12,537.

New Regulations: The new penalty for this section is $13,508.

Reason: Using the multiplier of 1.07745 from OMB Memorandum No. M-23-05, the new penalty is calculated as follows: $12,537 × 1.07745 = $13,507.99, which makes the adjusted penalty $13,508 when rounded to the nearest dollar.

Under Executive Order 12866, it must be determined whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

We have determined that these final regulations: (1) exclusively implement the annual adjustment; (2) are consistent with OMB Memorandum No. M-23-05; and (3) have an annual impact of less than $100 million. Therefore, based on OMB Memorandum No. M-23-05, this is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account, among other things, and to the extent practicable, the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or providing information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing these final regulations as required by statute and in accordance with OMB Memorandum No. M-23-05. The Secretary has no discretion to consider alternative approaches as delineated in the Executive order. Based on this analysis and the reasons stated in the preamble, the Department believes that these final regulations are consistent with the principles in Executive Order 13563.

Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the Department generally offers interested parties the opportunity to comment on proposed regulations. However, section 4(b)(2) of the 2015 Act (28 U.S.C. 2461 note) provides that the Secretary can adjust these 2023 penalty amounts notwithstanding the requirements of 5 U.S.C. 553. Therefore, the requirements of 5 U.S.C. 553 for notice and comment and delaying the effective date of a final rule do not apply here.

Pursuant to 5 U.S.C. 601(2), the Regulatory Flexibility Act applies only to rules for which an agency publishes a general notice of proposed rulemaking. The Regulatory Flexibility Act does not apply to this rulemaking because section 4(b)(2) of the 2015 Act (28 U.S.C. 2461 note) provides that the Secretary can adjust these 2023 penalty amounts without publishing a general notice of proposed rulemaking.

These regulations do not contain any information collection requirements.

This program is not subject to Executive Order 12372 and the regulations in 34 CFR part 79.

Based on our own review, we have determined that these regulations do not require transmission of information that any other agency or authority of the United States gathers or makes available.

Accessible Format: On request to the program contact person listed under FOR FURTHER INFORMATION CONTACT , individuals with disabilities can obtain this document in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, braille, large print, audiotape, or compact disc, or other accessible format.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register . You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site you can view this document, as well as all other documents of this Department published in the Federal Register , in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

For the reasons discussed in the preamble, the Secretary amends parts 36 and 668 of title 34 of the Code of Federal Regulations as follows:

EPA published a final rule redesignating the Ohio portion of the Cincinnati area to attainment of the 2015 ozone NAAQS on June 9, 2022 (87 FR 35104). That rule also approved VOC and NO X Budgets for the Ohio portion of the Cincinnati area for transportation conformity purposes. In that rule, EPA erroneously identified the 2015 ozone Budgets as 14.15 and 10.58 tons per day (tpd) for NO X in 2026 and 2035, respectively, and 25.30 and 18.98 tpd for VOC in 2026 and 2035, respectively. The table in that action conflicts with the Budgets submitted by Ohio and set forth in the proposed rule. The Budgets submitted by Ohio are 14.15 and 10.58 tpd for VOC in 2026 and 2035, and 25.30 and 18.98 tpd in 2026 and 2035 for NO X . Therefore, the table is being revised to reflect the correct Budgets.

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making this rule final without prior proposal and opportunity for comment because we are merely correcting an incorrect citation in a previous action. Thus, notice and public procedure are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(B).

This action is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders (E.O.s) 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). This action does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedures Act or any other statute as indicated in the section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C 601 et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). This action will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of governments, as specified by E.O. 13132 (64 FR 43255, August 10, 1999). In addition, the State Implementation Plan (SIP) is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by E.O. 13175 (65 FR 67249, November 9, 2000). This action is not subject to E.O. 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. This action is also not subject to E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This technical correction action does not involve technical standards; thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The action also does not involve special consideration of environmental justice related issues as required by E.O. 12898 (59 FR 7629, February 16, 1994).

This action is subject to the Congressional Review Act (CRA), and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA had made such a good cause finding, including the reasons therefore, and established an effective date of January 30, 2023. This correction to 40 CFR 52 for Ohio is not a “major rule” as defined by 5 U.S.C. 804(2).

In FR Doc. 2022-12318, published in the Federal Register on June 9, 2022 (87 FR 35104), on page 35108, in first column, the table entitled “ Table 2—2026 and 2035 Budgets for the Ohio Portion for the 2015 Ozone NAAQS Maintenance Area [Tons per summer day, TPSD]” is corrected to read:

In FR Doc. 2022-25807 appearing on page 73941 in the Federal Register of Friday, December 2, 2022 (87 FR 73941; FRL-8582-01-OCSPP), the following correction is made to fix an inadvertent omission to designate paragraph (a)(1) in the regulatory text for the chemical substance generically identified as hindered amine alkyl ester compounds (PMN P-16-167) that is codified in 40 CFR 721.11571.

OHA is modernizing its practice and improving services to the parties who appear before OHA and the public. OHA is issuing this rule to update its regulations in 43 CFR part 4 to provide the option to send and receive documents electronically, obtain up-to-date contact information and procedural information through the use of Standing Orders, and to remove outdated or unnecessary references in the existing regulations. These revisions do not impose new obligations on parties or the public. For example, parties may still submit paper documents but will have the option under the revised regulations to submit documents electronically.

Because the rule does not diminish any substantive rights or require parties to alter their current procedural practices, we are publishing this rule without a prior proposal because of its noncontroversial nature. Nonetheless, this rule will not become effective until the date specified in DATES so that we may receive public comment on the rule. If we receive significant adverse comments by the comment due date specified in DATES , we will publish a document in the Federal Register withdrawing the rule, in whole or in part, before the rule goes into effect. Significant adverse comments are comments that provide strong justification as to why our rule should not be adopted or why it should be changed.

The backdrop for this Direct Final Rule is OHA's interest in providing electronic transmission options as an improved service as well as establishing how it will communicate new processes as they are developed. In March 2020, at the onset of the COVID-19 pandemic, OHA reviewed its options to use existing technology to quickly meet the needs of parties, the public, and its employees and posted this information on the OHA website. OHA offered, where possible, the option of using electronic mail to transmit documents to certain OHA units, allowing many cases to proceed without the need for trips to the office or post office. This was intended to serve as a limited short-term solution since electronic mail restricts the size of the files that may be transmitted and because OHA's regulations, in some subparts, utilized terms, such as references to paper, that potentially limited OHA's ability to offer an electronic transmission option.

As a long-term solution, OHA has acquired a comprehensive electronic filing and case docket management system and is presently working on its development and deployment. To accompany this effort, this rule removes potential regulatory constraints to fully offering electronic transmission options by providing for consistent language describing the available options to file, serve, and receive documents electronically under specified conditions. The rule does not remove paper or mail transmission options but using terms that are more inclusive to provide for the added option of electronic transmission.

OHA also considered how best to provide parties and the public with procedural information on how to file, serve, and transmit documents electronically, as well as provide them with other information such as up-to-date office addresses. Fixing in regulation this type of information creates potential problems for parties because the information can quickly become outdated. To address this problem, consistent with existing practice, OHA decided to use Standing Orders issued by the Director of OHA as the mechanism for communicating up-to-date information to the parties and the public. Using Standing Orders rather than some other type of guidance aligns with how OHA communicates to interested individuals or parties in an administrative adjudicative setting. A Standing Order issued by the OHA Director applies to all cases or appeals filed with OHA, and it is issued under the Director's authority to issue general notices pertaining to the functions assigned to OHA under 212 Departmental Manual (DM) 13.7. This rule amends the current regulations in 43 CFR part 4 to explicitly recognize the Director's authority to issue Standing Orders.

Standing Orders on Electronic Transmission will provide the options and procedures for electronic transmission of documents and will be updated as procedures under the electronic filing system are deployed, improved, and potentially expanded. Standing Orders on Contact Information will provide the contact information for Department offices that the rule removes from the regulatory text (some of which is outdated). By providing this information in a Standing Order, if an office moves to a new location or its contact information otherwise changes, updates may be made without the need to promulgate new regulations. And finally, if OHA has an emergency or immediate need, such as an unexpected closure of an office, the rule allows the OHA Director to issue Standing Orders to communicate to parties who have a pending appeal or a scheduled hearing or those members of the public seeking an appeal or hearing what processes are being used to address the particular situation. The OHA Director may issue more than one Standing Order on a topic.

The use of OHA Standing Orders will provide parties and the public with up-to-date information that is easily referenced and in a format that may be sent individually or as an attachment, in paper or electronically, when needed. OHA would otherwise post this information on the website directly.

This rule makes other miscellaneous corrections, such as revising outdated references, such as those to “Examiners” who no longer exist in the context of the regulation, and to the “Board of Contract Appeals,” which was abolished by Congress, effective January 6, 2007, with its functions transferred to a new Civilian Board of Contract Appeals (CBCA) within the General Services Administration. The rule corrects several inaccurate references. OHA is taking this action under its authority, at 5 U.S.C. 552, to publish regulations in the Federal Register .

Below are tables summarizing various changes:

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant.

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

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). It does not change current funding requirements and would not impose any economic effects on small governmental entities.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. It does not add to, change, or diminish any substantive rights of any parties or the public. It provides parties to OHA proceedings the option to file documents electronically, removes outdated information and references, and authorizes the use of OHA Standing Orders as the means of communicating current information on contract information, electronic filing, and other procedural matters. This rule:

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

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

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

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

This rule does not affect a taking of private property or otherwise have taking implications under E.O. 12630. A takings implication assessment is not required.

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

This rule complies with the requirements of E.O. 12988. Specifically, this rule: (a) meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and (b) meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in E.O. 13175 and have determined there are no substantial direct effects on federally recognized Indian Tribes that will result from this rulemaking.

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because this is an administrative and procedural regulation under 43 CFR 46.210(i). We have also determined that this rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

This rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.

We are required by Executive Orders 12866 (section 1(b)(12)), and 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

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

(c) Use clear language rather than jargon;

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

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you believe lists or tables would be useful, etc.

You may submit your comments and materials regarding this direct final rule by one of the methods listed in ADDRESSES . We will post all comments on https://www.regulations.gov. This generally means that we will post any personal information you include with your comment.

Comments and materials we receive will be available for public inspection on the internet at https://www.regulations.gov. However, the comment will not be publicly viewable until we post it, which might not be immediate (see FOR FURTHER INFORMATION CONTACT ).

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

For the reasons stated in the preamble, the Department of the Interior, Office of Hearings and Appeals, amends Part 4 in title 43 of the Code of Federal Regulations to read as follows:

This action is taken pursuant to delegated authority.

The regulations in title 50 of the Code of Federal Regulations at 50 CFR part 11 provide uniform rules and procedures for the assessment of civil penalties resulting from violations of certain laws and regulations enforced by the Service.

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (sec. 701 of Pub. L. 114-74) (Inflation Adjustment Act) required Federal agencies to adjust the level of civil monetary penalties with an initial “catch up” adjustment through rulemaking and then make subsequent annual adjustments for inflation. The purpose of these adjustments is to maintain the deterrent effect of civil penalties and to further the policy goals of the underlying statutes.

Under section 4 of the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note, as amended by the Inflation Adjustment Act, each Federal agency is required to issue regulations adjusting for inflation the statutory civil monetary penalties (civil penalties) that can be imposed under the laws administered by that agency. The Inflation Adjustment Act provided that the initial “catch up adjustment” take effect no later than August 1, 2016, followed by subsequent adjustments to be made no later than January 15 every year thereafter. This final rule adjusts the civil penalty amounts that may be imposed pursuant to each statutory provision beginning on the date specified above in DATES .

On June 28, 2016, the Service published in the Federal Register an interim rule that revised 50 CFR part 11 (81 FR 41862) to carry out the Inflation Adjustment Act. The Service subsequently published a final rule to that interim rule on December 23, 2016 (81 FR 94274). The Service has published final rules every year thereafter, further adjusting the civil penalty amounts in 50 CFR 11.33 per OMB guidance:

• 82 FR 6307, January 19, 2017;

• 83 FR 5950, February 12, 2018;

• 84 FR 15525, April 16, 2019;

• 85 FR 10310, February 24, 2020;

• 86 FR 15427, March 23, 2021; and

• 87 FR 13948, March 11, 2022.

This final rule adjusts the civil monetary penalty amounts that were listed in the 2022 final rule and subsequently codified at 50 CFR 11.33 by using the 2023 inflation multiplier provided to all Federal agencies by OMB (see below).

OMB issued a memorandum, M-23-05, entitled “Implementation of Penalty Inflation Adjustments for 2023, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015,” which provides the cost-of-living adjustment multiplier for 2023: 1.07745. Therefore, we multiplied each penalty in the table in 50 CFR 11.33 by 1.07745 to obtain the 2023 annual adjustment. The new amounts are reflected in the table in the rule portion of this document and replace the current amounts in 50 CFR 11.33.

In addition, in this final rule, we affirm the required determinations we made in the June 28, 2016, interim rule (81 FR 41862); for descriptions of our actions to ensure compliance with the following statutes and Executive Orders, see that rule:

• National Environmental Policy Act (42 U.S.C. 4321 et seq. );

• Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2));

• Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. );

• Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. );

• Executive Orders 12630, 12866, 12988, 13132, 13175, 13211, and 13563.

As stated above, under section 4 of the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note, as amended by the Inflation Adjustment Act, Public Law 114-74, 129 Stat. 584 (2015), each Federal agency is required to issue regulations adjusting for inflation the statutory civil monetary penalties that can be imposed under the laws administered by that agency. The Inflation Adjustment Act provided for an initial “catch up adjustment” to take effect no later than August 1, 2016, followed by subsequent adjustments to be made no later than January 15 every year thereafter. This final rule adjusts the civil penalty amounts that may be imposed pursuant to each statutory provision beginning on the effective date of this rule. To comply with the Inflation Adjustment Act, we are issuing these regulations as a final rule.

Section 553(b) of the Administrative Procedure Act (5 U.S.C. 551 et seq. ) provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for prior public comment. The Service finds that providing for public comment before issuing this rule is unnecessary as this rulemaking is a nondiscretionary action. The Service is required to publish this rule in order to update the civil penalty amounts by the specified formula described above. The Service has no discretion to vary the amount of the adjustment to reflect any views or suggestions provided by commenters. Since this update to the March 11, 2022, final rule (87 FR 13948) is merely ministerial, we find that pre-publication notice and public comment with respect to the revisions set forth in this rule is unnecessary. We also believe that we have good cause under 5 U.S.C. 553(d) to make this rule effective upon publication to meet the statutory deadline imposed by the Inflation Adjustment Act.

For the reasons described above, we amend part 11, subchapter B of chapter I, title 50 of the Code of Federal Regulations as set forth below.

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

NMFS closed directed fishing for Pacific cod by catcher vessels using trawl gear in the Western Regulatory Area of the GOA on January 22, 2023 (88 FR 4089, January 24, 2023). NMFS has determined that as of January 24, 2023, approximately 1,300 metric tons of Pacific cod remain in the A season allowance of the 2023 Pacific cod apportionment for catcher vessels using trawl gear in the Western Regulatory Area of the GOA. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully use the A season allowance of the 2023 total allowable catch (TAC) of Pacific cod allocated to catcher vessels using trawl gear in the Western Regulatory Area of the GOA, NMFS is terminating the previous closure and is opening directed fishing for Pacific cod by catcher vessels using trawl gear in the Western Regulatory Area of the GOA. The Administrator, Alaska Region, NMFS, (Regional Administrator) considered the following factors in reaching this decision: (1) the current catch of Pacific cod by catcher vessels using trawl gear in the Western Regulatory Area of the GOA and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery.

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

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion, and would delay the opening of directed fishing for Pacific cod by catcher vessels using trawl gear in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 24, 2023.

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