I. Background A. Statutory

The SBDC Program was authorized in 1980 by the Small Business Development Centers Act of 1980 (Pub. L. 96-302, 94 Stat. 833) and is currently codified in section 21 of the Small Business Act, 15 U.S.C. 648 (the Act). According to the Act, the purpose of the Program is to assist in establishing SBDCs explicitly to provide “management and technical assistance” to small businesses. Section 21(a)(3)(A) requires SBA to consult with the recognized association of SBDCs in any rulemaking action for the Program.

Title II of the Small Business Development Act of 1980 authorized the SBDC Program at an initial annual funding level of $8.5 million. The new law specifically provided for Federal funding to be matched one-for-one with non-Federal funds and required an evaluation of the Program to be submitted to Congress by January 31, 1983.

SBA's Associate Administrator, Small Business Development Centers (AA/SBDC) holds statutory responsibility for the general management and oversight of the SBDC Program by means of a cooperative agreement with each recipient organization. A recipient organization is an institution of higher education or a state agency which receive Federal funds to operate an SBDC. Recipient organizations administer the SBDC Program to provide small businesses and aspiring entrepreneurs with a wide array of technical assistance, help strengthen business performance and sustainability, and enable the creation of new business entities.

The SBDC Program regulations were revised in 1995, see 60 FR 31504 (June 13, 1995). The statute authorizing the SBDC Program has since been amended numerous times. The annual notice of funding opportunity has become, for all practical purposes, the document which interprets statutory requirements of the Program and aligns them with current policies and procedures. To maintain consistency in Program administration and implementation, it is necessary to revise the regulations to outline current policies and procedures. Many of the proposed changes are enforced through the current notice of funding opportunity. Therefore, SBA revised Program regulations to incorporate those changes for efficiency and transparency of the SBDC Program.

SBA published an advanced notice of proposed rulemaking (ANPRM) on April 2, 2015, at 80 FR 17708, seeking comments on the development of new definitions, clarification of existing program requirements, and the renewal or termination of the notice of award. The ANPRM also solicited comments on international trade counselor certification requirements, required steps for the selection of Lead Center Directors, procedures for international travel, and procedures regarding the determination to effect suspension, termination or nonrenewal of an SBDC's cooperative agreement.

SBA received 133 comments on this ANPRM, which were considered during the development of the proposed rule. Comments received generally fell into four categories: the role of the District Office, definitions/clarifications, client confidentiality, and the Lead Center Director hiring process. SBA took these comments under advisement when writing the proposed rule.

The notice of proposed rulemaking was published on December 13, 2022, at 87 FR 76127, with a comment period of 60 days. Following the publication of the NPRM, SBA received approximately 350 comments from a broad range of stakeholders on a diversity of issues relating to the proposed rule. These included comments from the Association of Small Business Development Centers, several Small Business Development Centers, Chambers of Commerce, banking and lending institutions and other economic development organizations.

First, SBA proposed to clarify and define the role of the District Office regarding grant oversight activities by proposing new definitions and procedures throughout program regulations. Second, SBA proposed the addition of 23 new definitions and the revision of existing definitions to explicitly define and clarify the various roles, procedures, documents, and categories of funding. Third, a new section was proposed to codify SBDC client confidentiality requirements under the Act. Finally, the proposed rule added the current process of hiring a Lead Center Director, as outlined in the cooperative agreement. The intent of the proposed rule changes was to make Program operations more streamlined and less onerous for recipient organizations and the Agency and to align with current practices in the notice of funding opportunity and cooperative agreement. Many of the proposed changes made, which were discussed in comments received through the ANPRM are already required and implemented by the SBDCs; however, these final regulations will codify existing requirements to ensure consistency in Program regulations.

Through the NPRM, the Agency also sought feedback on its existing collection and use of individual SBDC client data.

In this final rule SBA incorporates the Uniform Guidance at 2 CFR part 200, which streamlined and consolidated government requirements for receiving and using Federal awards to reduce administrative burden and improve outcomes; makes various revisions to align the regulations with the text of the SBDC statute; and adopts the proposed rule with changes from the comments received from the publication of the NPRM.

SBA received approximately 350 comments on the proposed rule, 50 of which pertained to SBA's new section regarding client confidentiality; 12 regarding the new definition of the accreditation process; 31 comments on the definition of program income; 13 comments on the definition of SBDC Director; 30 comments on new § 130.310(c), Area of service; 20 comments on new § 130.320(e), Operating requirements; 34 comments on § 130.330(b)(5), SBDC services and restrictions on services; 14 comments on revised § 130.350(a)(3) and 6 comments on § 130.350(a)(6) regarding SBDC advisory boards; 15 comments regarding new § 130.370(b), Contracts with other Federal agencies; 11 comments regarding new § 130.460(g)(1) regarding the salaries of the State Directors; and other as stated below. SBA also received comments from The National Center for American Indian Enterprise Development requesting (1) to include “tribal” in § 130.100, Introduction, which SBA has accepted and (2) changes to § 130.200, Eligible entities, to include tribal communities and to add a new paragraph which states, “including a recipient organization that teams with a tribal government, Native American private or non-profit business assistance center or Native American community development financial institution that provides entrepreneurial development counseling to small businesses and entrepreneurs in native communities.” SBA is unable to change this request as eligible entities are outlined in the Small Business Act, 15 U.S.C. 656 and 648. However, SBA supports tribal governments and entities to collaborate with SBDC Lead Center Directors and their networks of Service Centers.

a. SBA received 12 comments on the proposed definition of accreditation process. The commenters expressed that the accreditation process evaluates SBDC programs based on standards derived from the Baldrige Performance Excellence Program. The commenters further stated that the accreditation process focuses on overall program improvement that is consistent with the standards providing conditions and recommendations on how to work toward continuous improvement based on observations during the review. The commenters request that SBA revise the definition of accreditation process to include such information.

SBA Response: SBA revised the definition of accreditation process that reflects the commenters suggestions and current use of the term. The new definition states that it's the process by which evaluation and assessment occurs to assist an SBDC with assessing its processes and outlining areas needing improvement by providing recommendations to strengthen delivery of services and assistance.

b. SBA received three comments on the definition of application. The commenters stated that this definition needs to include the term “renewal application.”

SBA Response: SBA took these comments under consideration and revised the definition of application to include the term “renewal application.”

c. SBA received one comment on the definition of cash match requesting to include waived indirect costs (IDC) in the definition. The commenter further stated that when it states that IDC is not allowed as cash match, adding the verbiage of the waived IDC may be important to include here. Currently, waived indirect costs are included as cash match after 50 percent of actual cash are acknowledged in the agreement.

SBA Response: SBA rejects this comment. As defined in 2 CFR part 200, waived indirect cost is the difference between the total amount of indirect costs charged to a Federal award and the total amount of indirect costs that could have been charged to a Federal award. The regulation in 2 CFR part 200 refers to this as unrecovered indirect costs.

d. SBA received six comments on the new proposed definition of clearinghouse. The comments state that the definition should be reflected as a collection of management information and a source of market and industrial information that all SBDC programs have access to assist clients. It also collects management information for SBDC networks.

SBA Response: SBA revised the definition of clearinghouse to define the term more clearly and accurately as requested by the commenters. The definition now states that the clearinghouse is a source of market and industry information made available to all SBDC networks to assist clients and supports the exchange of information between SBDCs.

e. SBA received eight comments on the definition of client. The commenters state that there should be a qualifier before the word “entrepreneur” such as “nascent” or “emerging” or “developing” to clarify that this applies to both established business owners and those who plan to start a business.

SBA Response: SBA revised the definition of client to include the word “nascent” before the word “entrepreneur.”

f. SBA received 31 comments on the definition of program income. Commenters stated that this revised definition would make almost all funds and not just training registration fees into program income funds and ineligible for use as match. Commenters also stated that if the intent of “sponsorship agreement” was meant to be a co-sponsorship agreement that has been traditionally used with SBDC resource partners when hosting a training event, the language would need to be changed to define “sponsorship agreement.”

SBA Response: SBA accepts the comments and refers the reader to the definition of program income as defined in 2 CFR part 200.

g. SBA received 13 comments on the definition of SBDC Director. Commenters stated that the definition should read “at least 75 percent of whose time is allocated to” or at least “100 percent of the individual's time and effort is allocated to the SBDC grant OR other grant programs . . .” An alternative definition that was suggested was a minor grammar change “100 percent of the individual's time and effort is allocated to the SBDC grant or other grant programs . . .”

SBA Response: SBA agrees with the commenters and revised the definition of SBDC Director to state that no less than 75 percent of the individual's time and effort is allocated to the SBDC grant.

h. SBA received three comments on the definition of specialized services. The commenters stated that this is a vague definition and that it seems to imply that the SBDC must hire an outside consultant for a client which makes no sense.

SBA Response: SBA agrees with the commenters and deleted the words “hiring outside consultants for a client” from the definition.

a. SBA received one comment opposing the proposed change to the eligible entities' requirements of the recipient organization in § 130.200(2)(c). The commenters stated that currently SBDC hosts are colleges or state offices. Instead of restricting SBDC hosts, it would be better to expand hosts to non-governmental entities such as Economic Development offices that may not be a state office. Colleges may not be a good fit for SBDC since they have different missions, and some colleges believe the SBDC they host to conflict with the college's need to increase student enrollment for state funding by head count.

SBA Response: SBA is unable to change this requirement as it required in the Small Business Act, 15 U.S.C. 656 and 648(a)(1), which states, in part, that after December 31, 1990, the Administration shall not make a grant to any applicant other than an institution of higher education or a women's business center operating pursuant to section 656 of the title as a Small Business Development Center unless the applicant was receiving a grant (including a contract or cooperative agreement) on such date. The previous sentence shall not apply to an applicant that has its principal office located in the Commonwealth of the Northern Mariana Islands. Therefore, SBA is rejecting this comment.

b. SBA received five comments on new proposed paragraphs (e) and (f) stating that there is a concern that this new requirement will inherently restrict the ability of the SBDC Lead Center to engage partners that are not housed within higher education and that this will limit the ability of the SBDC to reach and serve rural and under-represented populations.

SBA Response: SBA is unable to change this requirement as it required in the Small Business Act, 15 U.S.C. 656 and 648(a)(1), which states, in part, that after December 31, 1990, the Administration shall not make a grant to any applicant other than an institution of higher education or a women's business center operating pursuant to section 656 of the title as a Small Business Development Center unless the applicant was receiving a grant (including a contract or cooperative agreement) on such date. The previous sentence shall not apply to an applicant that has its principal office located in the Commonwealth of the Northern Mariana Islands. Therefore, SBA rejected this comment.

SBA received 30 comments regarding the new proposed paragraph (c) stating that there is a concern that this new requirement will inherently restrict the ability of the SBDC Lead Center to engage partners that are not housed within higher education and that this will limit the ability of the SBDC to reach and serve rural and under-represented populations.

SBA Response: SBA accepts these comments and revised the paragraph to provide that for any applicant commencing after January 1, 1992, the recipient organization must ensure that any new SBDC service centers established within its area of service, to the extent practicable, are primarily housed within institutions of higher education or a Women's Business Center (WBC), operating pursuant to section 29 of the Small Business Act (15 U.S.C. 656) as stated in section 21(a)(1) of the Small Business Act (15 U.S.C. 648(a)(1)).

a. There is one comment opposing the proposed revision to paragraph (a) which states that full time is more than 75 percent. The proposed paragraph states that the Lead Center must be an independent department within the recipient organization, having its own staff, including a full-time SBDC Director.

SBA Response: SBA accepts this comment and revises the paragraph to delete the reference to “full-time.”

b. SBA received 20 comments opposing the proposed new paragraph (e) stating that this new paragraph will severely limit the ability of SBDCs to coordinate and collaborate with outside entities. If “any type of organization” can be considered an “SBDC service center” then literally anybody SBDCs work with becomes an SBDC service centers. If the point is to track SBDC performance than this will lead to overcounting, double-counting and taking credit for other people's efforts. Also, “any funds” could lead to serious problems with outside organizations that have no wish to submit to SBA scrutiny.

SBA Response: SBA accepts this comment and revised the paragraph to narrow the scope of the requirement to read as follows: “Any entity that is using the term `Small Business Development Center' and under contract with the Lead Center and receiving program funds, whether . . .” and at the end of the paragraph replaces the word “entity” with the words “Service Center.”

c. SBA received one comment opposing new paragraph (f) which refers to the technology designation for an SBDC stating that the America's Small Business Development Centers (ASBDC) voted to and did delete the Technology Development Center Designation under the accreditation program in 2022 in response to the growth and availability of technology services in all SBDCs.

SBA Response: SBA deleted paragraph (f) since the new accreditation standards no longer address the technology designation.

a. SBA received six comments on newly revised paragraph (a) stating that not all SBDCs provide either training or specialized services. This should be corrected to read “with counseling, and whenever practicable, training and specialized services.” An SBDC Lead Center should use and compensate qualified small business vendors as one of its resources. Another commenter stated that this language is unclear and probably a holdover from old statutory language.

SBA Response: SBA accepts the comments and revised the paragraph to include, “to the extent practicable.”

b. SBA received one comment on new § 130.330(b)(4) stating that this would be a new requirement and that should the Agency consider this a priority, the Agency should include this information on SBA Form 641.

SBA Response: SBA deleted this paragraph. The remaining paragraphs are redesignated from paragraphs (b)(5) and (6) to paragraphs (b)(4) and (5) in this final rule.

c. SBA received one comment on newly revised § 130.330(b)(3) requesting that SBA define “direct or indirect role.”

SBA Response: SBA agrees that an SBDC should not act as an agent for the client. SBA inserted after “however” “SBDCs may not attest to a client's readiness or creditworthiness to the lending institution either verbally or in writing”. Further SBA deleted “neither SBDC staff nor their agents may take a direct or indirect role in representing clients in loan negotiations.”

d. SBA received 34 comments on newly revised § 130.330(b)(5) (now § 130.330(b)(4)) stating first, that currently SBDC personnel are asked to participate in many panels that provide input concerning loan applicants. In some states, the State Economic Development Departments rely on SBDC personnel to assist them in evaluating numerous applicants for state assistance. Second, why is one SBA Resource Partner allowed to make loans (Women's Business Centers) while the others are not. According to several studies the biggest challenge faced by minority entrepreneurs is access to capital. Eighty-three percent of minority entrepreneurs have difficulties accessing capital and 76 percent rely on personal and family savings. By servings on panels or board that review loan applications, SBDC personnel become more knowledgeable about the financing trends in their communities and better understand the advising needs of minority owned business. Finally, some SBDC counselors have been members of loan committees of Black and Latino associations and instrumental in widening access to capital for minority entrepreneurs and learning of their technical assistance (advising) needs.

Another commenter stated that SBDC personnel participate on Loan Evaluation Boards where SBDC personnel routinely serve on boards, panels, etc. and that SBDC personnel are covered by SBA's conflict of interest codified at 2 CFR 200.112.

SBA Response: SBA agrees with the commenters and revised the language to state “SBDCs may participate on boards and panels of financial institutions and with outside organizations but may not be involved in any final credit decisions involving SBDC clients or in making or servicing loans.”

e. SBA received one comment regarding newly revised § 130.330(b)(6) (now § 130.330(b)(5)) requesting that SBA define the word “advocate,” noting the current rules also mention the words “may not advocate” but fails to define it for better universal understanding.

SBA Response: SBA agrees with the commenter and revises the language to include “. . . but may not advocate for, promote, recommend approval . . .” to the paragraph.

f. SBA received seven comments on revised § 130.340(c). Some comments requested that SBA not codify specific focus areas which are likely to change, and other commenters requested that specific focus areas, such as the “employee-owned business concern, be included in this paragraph.

SBA Response: SBA agrees not to include specific focus areas in the regulations as they could change which is now reflected in the regulation. Focus areas will be included in the notice of funding opportunity (NOFO) each year.

SBA received two comments on the proposed language stating that not all service centers provide training. The District Office and/or program manager may construe this to mean that all centers must provide training and that this would be a new requirement and could place a substantial financial burden on individual service centers.

SBA Response: SBA agrees with the commenters and revises the language in new § 130.340(c)(5) to state that service centers should provide access to training.

a. SBA received 14 comments on proposed § 130.350(a)(3) stating that the proposed language is not supported by sec. 21(j)(1) of the Small Business Act, and may restrict advisory board membership from including local leaders, non-profit organization supporting underserved communities, etc. Further, these advisory boards should consist primarily of representatives from small businesses or associations representing small businesses, as well as local economic development and community organizations. Some SBDCs have small business champions, community development experts, and others with expert skills and experience that the SBDC would like to include as members. The commenters stated that it seems that SBDCs should have the flexibility to make this decision if they do indeed ensure that most of our members are from small businesses or associations representing small businesses.

SBA Response: SBA accepts these comments and did not revise this paragraph.

b. SBA received six comments on proposed § 130.350(a)(6) stating that this language precludes the possibility of advisory boards paying their own costs. Advisory board members are volunteers and often pay their own costs.

SBA Response: SBA accepts this comment and agrees that the proposed language should be changed so that the Board members can pay for their own costs if they choose to do so. The paragraph now states that the reasonable cost of travel of any Board member for official Board activities may be paid out of the SBDC's budget funds, and Federal and program funds are not to be used to compensate advisory board members for non-travel related expenses such as time and effort.

SBA received 15 comments regarding proposed new § 130.370(b) stating that this requirement does not provide any responsibility for SBA to respond. The commenter requests that a five business-day response time from SBA be incorporated into the rule so that SBDCs are not precluded from participating in grant opportunities consistent with their mission.

SBA Response: SBA accepts these comments and adds language to the end of the paragraph with a five-business day response timeframe.

SBA received 50 comments regarding this new section stating they believe that this section compromises the intent of the privacy guidelines currently in practice without outlining specific practices the Agency must comply with to ensure that client data is not unduly disregarded. The commenters want to know who is responsible for the data. Currently, the SBDC controls the client identifying data and submits downloads that contain anonymized information for program performance monitoring. The commenter raises several questions regarding broadening access to the data including how it will impact client privacy and who will be responsible for the making these decisions. Further, the commenter has questions regarding responsibility for granting access to the client data.

Finally, the commenter states that it seems as though Congress included a catch-all provision in the Small Business Act (section 21(a)(7)(C)(ii)) requiring that regulations regarding client privacy “shall, to the extent practicable, provide for the maximum amount of privacy protection.” Therefore, any lessening of that amount of privacy requires the SBA to take significant steps to limit disclosure. The proposed rule works in the opposite direction—towards more exposure, not less. The SBA might consider prescribing steps to protect that privacy.

SBA response: SBA rejects these comments. The SBA complies with the statute protecting client privacy. First, SBA allows clients to opt-in to obtain their contact data for the purpose of communication and surveys. SBDCs cannot refuse service for those who do not opt in; therefore, the client has the right to not disclose the information in most cases excluding the three exceptions. With regards to surveys, SBA will consult with the Recognized Organization prior to implementing a survey to coordinate any timing, minimizing duplicating any surveys that are currently being done, and protect the client's privacy to the maximum extent possible.

SBA believes that the language in the regulation does not compromise the intent of the privacy guidelines currently in place.

The language states that the 641 has an opt-in clause for clients. Clients do not have to provide their information on the form.

SBA received three comments regarding § 130.410(b) stating that while this paragraph only applies to new applicants to the SBDC program, it does raise issues surrounding foreign campuses, and relationships with other institutions outside the area of operation.

SBA Response: SBA agrees with the comments received and removed the word “region” from the paragraph.

a. SBA received two comments on § 130.420(c)(2) stating that this appears to be a subjective measure. The commenters asked how will the Agency define how quality is evaluated, or is the intent of this statement that the Agency will review the performance of a program relative to programmatic goals, and relative to prevailing economic conditions during that prior performance period? How will the Agency measure and assess quality of prior performance?

SBA Response: SBA agrees with the commenters and added language to the paragraph that incorporates client satisfaction rates as a deciding factor.

b. SBA received three comments on proposed new § 130.420(c)(5) stating that accreditation recommendations do not require action, they are simply recommendations for consideration and suggests this paragraph be rephrased to cite the current accreditation report, rather than recommendations.

SBA Response: SBA accepts the comment. SBA replaces the word “recommendations” with the word “conditions.”

a. SBA received three comments on the revision of § 130.450(a) stating that the new language appears to contradict the funding requirement defined in the statute.

SBA Response: SBA accepts this comment and revised the language in this paragraph to state that no more than 50 percent of cash match may be provided through any allowable combination of additional cash, in-kind contributions, or indirect costs.

b. SBA received seven comments regarding revised § 130.450(b) stating that this appears to be an overstep by the Agency that increases the reporting burden of the SBDC, with no discernable benefit to the Agency or the SBDC. Further, different hosts and partners have different requirements and expectations, and it is the responsibility of the SBDC to ensure that these needs are in alignment with the mission and vision of the program and to ensure that the needs are being met, should they wish to continue to receive that match funding.

SBA Response: SBA rejects this comment but clarified the language by adding that only the additional requirements from SBA will need to be identified. Further, SBA requests this information to ensure that the Non-Federal Entity's (NFE) cost sharing and matching are not paid by Federal Government under another Federal award or by other Federal sources. Additionally, the SF424 requires the sources of match. Further, if match sources are not known, SBA could unknowingly approve those funds through the Notice of Award.

c. SBA received one comment on proposed § 130.450(e) stating that matching funds includes in-kind which by definition is not under the direct management of the State Director.

SBA Response: SBA rejects this comment as all funds are and should be under the authority of the State Director. When the SBDC accepts an in-kind donation the management of the SBDC is accountable for accurate reporting. SBA added the following sentence for clarity: “If in-kind contributions are utilized by the SBDC, the State Director or an SBDC Service Center Director is then considered to be in control of those contributions.”

d. SBA received one comment on new proposed § 130.450(f) stating that this paragraph is objective and questioning why SBA is vesting special authority in the Grants Management Specialist (GMS). A program either meets the cash match or not. There is no determination to be made by the GMS or others.

SBA Response: SBA rejects this comment. SBA needs to determine if there is sufficient cash match and has oversight responsibility of that match amount. Additionally, the GMS must determine and evaluate the proposal that proper cash match has been provided.

e. SBA received five comments regarding proposed new § 130.450(g) stating that identifying overmatched funds is problematic. The policy of the university is to not report overmatch so that these funds can be used for leveraging other grants and opportunities. There are also concerns as to how this funding may be spent. This is problematic to the university and the SBDC organization. A benefit of the current SBDC model is that innovative and additional business services complement base SBDC services. Since SBA's funds are limited, SBDCs must seek other sources of capital and should not be limited by this proposed requirement.

SBA Response: SBA accepts this comment and revises the language to include that overmatching expenditures are those which are derived from eligible matching sources; are reasonable, allowable, and allocable to the SBDC program; are over and above the minimum match required to the Federal expenditures; and are included on the required SBDC financial reporting to SBA for the project period.

a. SBA received seven comments regarding new proposed § 130.460(f) about lobbying. The commenter stated that the new paragraph seems to be a gratuitous restatement of current Office of Management and Budget (OMB) guidance. It is also confusing as state lobbying efforts are permitted as the purpose is to “reduce program costs” by obtaining matching funds. Another commenter states that this creates a problem with hosts, regarding state activities. There is an OMB exception regarding state activities “to reduce the cost or avoid material impairment”. Also, this violates section 21(a)(3)(B) of Small Business Act (“Circulars shall be incorporated by reference and shall not be set forth in summary or other form in regulations.”). The commenter requests that the first sentence should be stricken. Also, lobbying definition is far more complex than this which gives a false impression of “any legislative contact.” Finally, another commenter suggests that this section should clearly state, as permitted by OMB, that SBDCs can engage in lobbying in order to secure adequate public match funding. This will reduce ambiguity among Federal and state stakeholders.

SBA Response: SBA accepts these comments and deleted the paragraph.

b. SBA received 11 comments on revised proposed new § 130.460(f) regarding salaries of the State Directors. The commenters state that this language hasn't been useful in the past when examining host institutions' human resources departments on pay equality issues. The section is neither helpful nor enforceable and should be removed. Basing Center Director salaries on professor salaries does not make sense, particularly for Centers that are not based in higher education institutions. Furthermore, Centers and their Hosts must be able to stay competitive in the marketplace to hire top quality employees. Another commenter stated that if a recipient organization is not an educational institution, the salaries of the SBDC Lead Center Director and the subcenter Directors must approximate the average salaries of parallel positions within the recipient organization. In both cases, the recipient organization should consider the Director's longevity in the Program, the number of subcenters, the size of the SBDC budget, the number of service centers, and the individual's experience and background.

SBA Response: SBA accepts these comments and deleted the reference to the salary but is keeping the rank in the organization and revising the text to state that where the recipient organization is an educational institution, the SBDC Lead Center Director and the SBDC Service Center Director at a minimum must be equivalent to a full professor and an assistant professor, respectively, in the school or department in which the SBDC is located.

c. SBA received two comments on revised § 130.460(i) regarding travel. The commenter states that this entire section is covered by the omni-circular; the organizations and institutions that host SBDC programs have very clear guidelines on allowable versus unallowable travel expenses.

SBA Response: SBA accepts these comments and will reference 2 CFR 200.475 and NOFO for out-of-state and international travel.

d. SBA received two comments on revised § 130.460(i)(2) regarding coach class travel. The commenter questions what is meant by coach class and how is this different than the omni-circular.

SBA Response: SBA accepts these comments and deleted this paragraph.

e. SBA received one comment on revised § 130.460(j) regarding dues stating that 2 CFR 200.454(a) Costs of the non-Federal entity's membership in business, technical, and professional organizations are allowable.

SBA Response: SBA accepts this comment and deleted this paragraph.

a. SBA received one comment on revised paragraph (b) regarding the use of program income. The commenter stated that this is a legacy rule that should be reviewed by the Agency and that the CFR sets forth no such limitations. Given the Agency's historical backlog for issuing notices of award along with the difficult Federal budget process, program income can be a valuable resource to provide services to clients during shutdowns or during the time when programs do not have an active Notice of Award due to Agency delays.

SBA Response: SBA rejects this comment based on the Small Business Act section 21(a)(4)(A) which requires the recipient to match 100 percent Federal grant funding not less than 50 percent cash and not more than 50 percent of indirect costs and in-kind contributions. SBA interprets this paragraph to mean that program income, which are fees collected from recipients of assistance, is excluded to be used as matching funds. Further, SBA requests the sources of match to ensure that the NFE's cost sharing and matching are not paid by the Federal Government under another Federal award or by other Federal sources. Additionally, forms submitted to the SBA require the NFE to provide the source of the matching funds. If the funding sources are not provided to the SBA, SBA could unknowingly approve an award with unallowable sources of matching funds.

b. SBA received one comment on proposed new paragraph (e) regarding program income and SBDC sponsored activities. The commenter stated that they do not believe that funds received under a sponsorship agreement should be considered program income and that the requirement is not in 2 CFR 200.80.

SBA Response: SBA accepts this comment and deleted this paragraph.

SBA received one comment opposing this section as it repeats guidelines outlined in 2 CFR part 200.

SBA Response: SBA agrees with this comment and will delete this section from the regulation.

SBA received one comment regarding this section stating that this is a restatement of what is in 2 CFR part 200.

SBA Response: SBA accepts this comment and removed the section as it is a restatement of what is in 2 CFR part 200.

a. SBA received one comment opposing proposed paragraph (b) stating that it is in direct conflict with the Agency's requirement to grant prior approval for contracts in § 130.620.

SBA Response: SBA agrees with the commenter and revised the paragraph to state that SBA reserves the right to disapprove any sub-agreement entered into the by recipient organization with SBDC service center organizations, vendors, or contractors.

b. SBA received one comment opposing proposed paragraph (d) stating that this paragraph is already covered by 2 CFR part 200.

SBA Response: SBA agree with the commenter and deleted this paragraph.

a. SBA received one comment regarding the new proposed paragraph (b) stating that this paragraph is already covered by 2 CFR part 200.

SBA Response: SBA agree with the commenter and deleted this paragraph.

b. SBA received one comment regarding the new proposed paragraph (c) stating that there is nothing to preclude SBA to propose additional requirements beyond 2 CFR part 200.

SBA Response: SBA accepts the comments and deleted this paragraph.

a. SBA received two comments regarding revised paragraph (a)(2) questioning whether this paragraph is regarding sub-awards or contracts. Additionally, the comments state that this requirement is already covered by 2 CFR part 200.

SBA Response: SBA agrees with the commenters and deleted paragraph (a)(2).

b. SBA received two comments on proposed new paragraph (a)(3) stating that they encourage the regulations to include language describing how SBA will publicize and distribute any supplemental funds it may have and to seek input from SBDCs regarding distribution of these funds in a way that supports the overall program and/or individual SBDCs. The summary mentions supplemental funds but there is no language regarding those funds and how they would be distributed.

SBA Response: SBA accepts this comment and revises the paragraph to add the following language, “If supplemental funds are available for distribution, SBA will publish a notice of funding opportunity in consultation with the Recognized Organization.”

c. SBA received two comments regarding new paragraph (b) asking if SBA will amend a cooperative agreement with one SBDC decreasing its award in order to increase another SBDC's cooperative agreement award to authorize unanticipated out-of-state travel?

SBA Response: SBA accepts this comment and adds the following language at the beginning of paragraph (b)(1), “In consultation with the Recognized Organization . . .”

SBA received three comments regarding revised paragraph (a)(1). The comments question why the District Office needs to be involved in the process of a financial dispute resolution since the District Office in not involved in the financial oversight process.

SBA Response: SBA accepts this comment and replaces the District Office reference with the Grants Management Officer.

a. SBA received two comments regarding paragraph (a)(1) stating that this paragraph vests broad authority to terminate and contradicts guidance in the renewal application section and that this is concerning as it gives the Agency authority to terminate without cause.

SBA Response: SBA accepts these comments and is removing this paragraph. Further, the SBA acknowledges that the causes for termination are outlined in 2 CFR 200.340.

b. SBA received three comments regarding revised paragraph (b) stating that this paragraph does not accurately reflect the accreditation process. The recommendations are for continuous improvement of the program and are at the discretion of the Lead Center to act upon.

SBA Response: SBA accepts the comments and is replacing the word “recommendations” with the word “conditions.”

SBA received one comment regarding new paragraph (c) regarding a change in the SBA primary contact and notification of the recipient organization. The commenter is questioning why this included in the regulations and if it is final.

SBA Response: SBA rejects this comment and believes that it is necessary to keep this paragraph for notification purposes.

SBA received one comment regarding paragraph (a), Site visits. The commenter states that this paragraph is repeating what is already stated in 2 CFR part 200.

SBA Response: SBA is rejecting this comment. SBA believes that more information is needed to provide to the recipient organization regarding site visits. Additionally, section 21 (k)(2) of the Small Business Act states that the Administration will develop and implement a biennial programmatic and financial examination of each small business development center established pursuant to this section.

SBA received four comments stating that annual physical site visits are not necessary to conduct required subrecipient monitoring. Lead centers should be allowed flexibility in determining whether a physical or virtual visit will meet the needs of its required subrecipient monitoring. In cases where there have been no changes in leadership at the subrecipient and no problems exist, a virtual visit may suffice. Further, the comments state that this appears to unnecessarily restrict the method (in-person vs virtual) by which centers are reviewed and it is in contradiction to any risk-based approach that a Lead Center may deploy.

SBA Response: SBA accepts the comments. However, SBA revised paragraph (a)(2)(ii) to include: (1) that a physical on-site visit must be conducted at least once every four years by the recipient organization; (2) or when SBA deems it necessary, such as, when there is a change in leadership, either at the Service Center or the Lead Center, or the SBA has or receives concerns regarding a Service Center.

a. SBA received two comments on new paragraph (b)(3) requesting that SBA provide a timeline for delivering final reports in the regulations rather than referring to the NOFO.

SBA Response: SBA rejects this comment as the dates and times may change. Additionally, the Agency should have the flexibility to do this in the NOFO.

b. SBA received two comments regarding newly revised paragraph (d) stating that including specific reporting formats in the regulations limits ongoing improvements to narrative reporting and that simplified reporting may make the content more useful for the Agency.

SBA Response: SBA accepts the comments and revises paragraph (b) to add an introductory sentence which states, “Performance reports must include the data specified below, along with any other information the SBDC feels may be relevant to a full appraisal of its performance.”

c. SBA received one comment on newly revised paragraph (e) stating that this paragraph does not vest any new authority within the Agency nor does it further the Agency's stated goal of providing more specific and clear instructions. The Uniform Guidance provides for a certification statement to be included. This is redundant to existing guidance provided by the Uniform Guidance.

SBA Response: SBA accepts that comments and deleted this paragraph.

SBA received one comment stating that this section does not vest any new authority within the Agency nor does further the Agency's stated goal of providing more specific and clear instructions.

SBA Response: SBA accepts this comment and revises this section to reference 2 CFR part 200.

SBA proposed to add a paragraph providing a broad overview of the Program and purpose. SBA believes that this will provide clarity. SBA did not receive any comments on this section and is moving forward with the paragraph as proposed.

This section proposed adding 23 new definitions to clarify and codify current District Office responsibilities, State/Lead Center Director responsibilities, and define other terms already in use in the notice of funding opportunity. If the revised or new definition is not listed below, SBA did not receive any comments for them and moves forward with those definitions as proposed.

a. Due to the comments received, SBA revised the definition of accreditation process that reflects the commenters suggestions and current use of the term. The new definition states that it's the process by which evaluation and assessment occurs to assist an SBDC with assessing its processes and outlining areas needing improvement by providing recommendations to strengthen delivery of services and assistance.

b. Due to comments received, SBA revised the definition of application to include the term “renewal application.”

c. After reviewing the comments, SBA will not change the definition of cash match. As defined in 2 CFR part 200, waived indirect cost is the difference between the total amount of indirect costs charged to a Federal award and the total amount of indirect costs that could have been charged to a Federal award. The regulation at 2 CFR part 200 refers to this as unrecovered indirect costs.

d. SBA took the comments under consideration and revised the definition of clearinghouse to define the term more clearly and accurately as requested by the commenters. The definition now states that the clearinghouse is a source of market and industry information made available to all SBDC networks to assist clients and supports the exchange of information between SBDCs.

e. SBA took the comments submitted under consideration and revised the definition of client to include the word “nascent” before the word “entrepreneur.”

f. SBA accepts the comments submitted and refers the reader to the definition of program income as defined in 2 CFR part 200.

g. After some consideration, SBA agrees with the commenters and revised the definition of SBDC Director to state that at least 75 percent of the individual's time and effort is allocated to the SBDC grant.

h. SBA agrees with the comments submitted and deleted the words “hiring outside consultants for a client” from the definition.

As required in the Small Business Act, 15 U.S.C. 656 and 648(a)(1), this section adds a Women's Business Center operating pursuant to section 29 of the Small Business Act as an entity eligible to apply to be a Lead Center SBDC. This section also proposed to add eligibility criteria for the Commonwealth of the Northern Mariana Islands. SBA is unable to change this requirement, as the Small Business Act, 15 U.S.C. 656 and 648(a)(1) states, in part, that after December 31, 1990, the Administration shall not make a grant to any applicant other than an institution of higher education or a women's business center operating pursuant to section 656 of the title as a Small Business Development Center unless the applicant was receiving a grant (including a contract or cooperative agreement) on such date. The previous sentence shall not apply to an applicant that has its principal office located in the Commonwealth of the Northern Mariana Islands.

This section codifies the statutory authority for the Administrator to operate and administer the SBDC Program through cooperative agreements issued to recipient organizations, as established under the Small Business Act. SBA did not receive any comments on this section and is moving forward with the rule as proposed.

This section requires service centers to be primarily housed within institutions of higher education or a Women's Business Center operating pursuant to section 29 of the Small Business Act, under paragraph (c). SBA is revising the paragraph to provide that for any applicant commencing after January 1, 1992, the recipient organization must ensure that any new SBDC service centers established within its area of service, to the extent practicable, are primarily housed within institutions of higher education or a WBC, operating pursuant to section 29 of the Small Business Act (15 U.S.C. 656) as stated in section 21(a)(1) of the Small Business Act (15 U.S.C. 648(a)(1)).

This section adds five requirements already in use in the notice of funding opportunity as paragraphs (d) through (g) of the section to standardize SBDC naming/branding nationwide and enhance the current conflict of interest policy as follows:

• The name of the Lead SBDC must contain the official identification of “Small Business Development Center” and that, unless waived by the AA/SBDC, the SBDC has one year from the date of promulgation to make any necessary changes.

• Any entity operating as an SBDC service center, whether receiving Federal funding or not, is now considered a part of the recipient organization's network and is required to report its goals, achievements, etc. as any other service center.

• The process to obtain the minimum number of required staff members for international trade assistance as required by the Act.

• The requirement for every SBDC to annually sign the conflict-of-interest form and to have a policy, which addresses how the recipient organization will deal with competing and conflicting issues.

a. SBA accepts a comment and revises the paragraph (a) to delete the reference to “full-time.”

b. SBA accepts the comments regarding new paragraph (e) stating that this is new and revises the paragraph to narrow the scope of the requirement to read as follows: “Any entity that is using the term `Small Business Development Center' and under contract with the Lead Center and receiving program funds, whether . . .” and at the end of the paragraph will replace the word “entity” with the words “Service Center.”

c. SBA deleted paragraph (f) since the new accreditation standards no longer address the technology designation.

SBA provides an overview of the services that an SBDC must provide to prospective entrepreneurs and existing small businesses and the related reporting requirements. Further,

SBA requires the SBDC network to collaborate with other state and local government programs providing assistance to small businesses and potential small business. This change will provide clarity and transparency to the regulations and is consistent with the notice of funding opportunity.

a. SBA accepts the comments and revised paragraph (a) to include, “to the extent practicable.”

b. SBA agrees with the comment received and deleted § 130.330(b)(4). The remaining paragraphs are redesignated from paragraphs (b)(5) and (6) to paragraphs (b)(4) and (5) in this final rule.

c. SBA addresses a comment on newly revised § 130.330(b)(3) and agrees that an SBDC counselor should not act as an agent for the client. SBA inserted after “however” “SBDCs may not attest to a client's readiness or creditworthiness to the lending institution either verbally or in writing”. Further SBA deleted “neither SBDC staff nor their agents may take a direct or indirect role in representing clients in loan negotiations.”

d. SBA revised the language in § 130.330(b)(5) (now § 130.330(b)(4)) to state “SBDCs may participate on boards and panels of financial institutions and with outside organizations but may not be involved in any final credit decisions involving SBDC clients or in making or servicing loans.”

e. SBA revises the language in § 130.330(b)(6) (now § 133.330(b)(5)) to include “. . . but may not advocate for, promote, recommend approval. . .” to the paragraph.

f. SBA revises § 130.340(c) to not include specific focus areas in the regulations as they could change and revised the language in the regulation to reflect this change. The focus areas will be included in the NOFO each year.

This section clarifies the responsibilities of the AA/SBDC and the SBDC Lead Center Director (Lead Center Director). Currently, this section refers to SBA as the entity making decisions or determinations. The final rule distinguishes between AA/SBDC and the District Director to provide for more transparent identification of roles and responsibilities for the public. SBA revises the language in new § 130.340(c)(5) to state that service centers should provide access to training.

This section would replace the words “shall” and “may” with “must” and “will” and imposes term limits and language to provide guidance to the boards, consistent with the cooperative agreement.

a. After reviewing comments submitted from the public, SBA will no longer revise § 130.350(a)(3).

b. SBA revised § 130.350(a)(6) stating that the Board members can pay for their own costs if they choose to do so.

This section codifies the current selection process, for SBDC Lead Center Director utilized by SBDCs. SBA did not receive any comments on this section and is moving forward with the rule as proposed.

This section codifies the requirements process for an SBDC to enter a contract with another Federal agency and adds language to the end of the paragraph with a five-business day response timeframe for SBA.

Section 21(a)(7) of the Act requires SBDCs and the Administration to protect the privacy of any individual or small business receiving assistance in the Program. Under this final rule, an SBDC, including its contractors and other agents, would not be permitted to disclose to an entity outside the individual SBDC, the name, address, email address, or telephone number, referred to as “client contact data” of any individual or small business without the consent of such individual or small business, unless such disclosure meets on the three exceptions discussed below.

The three exceptions, as authorized by the Act, would permit disclosure if: (1) A court orders the Administrator to disclose the information in any civil or criminal enforcement action initiated by a Federal or state agency; or (2) the Administrator considers such a disclosure to be necessary for the purpose of conducting a financial audit of a center, not including those required under § 130.830, as determined on a case-by-case basis when formal requests are made by a Federal or state agency. Such formal requests must justify and document the need for individual client contact and/or Program activity data to the satisfaction of the Administrator; or (3) SBA requires client contact data to directly survey SBDC clients.

This rule would require SBDCs to provide an opportunity for clients to opt in to allow SBA to obtain their contact data. SBA's use of client contact data would be restricted only to conduct survey and studies that help stakeholders better understand how the services the client received affect their business outcomes over time. These surveys or studies would include, but are not limited to, program evaluation and performance management studies.

Under this final rule, the Agency would not allow use of client contact data for any other purpose beyond program surveys or studies.

This final rule prohibits the denial of services to clients solely based on a client's refusal to provide consent to use their contact data for study purposes.

Section 21(a)(7)(C) of the Act directs the Agency to publish standards for requiring disclosures of client information during a financial audit. Other Federal or state agencies making such disclosure requests are required to submit formal requests, in writing, including a justification for the need for individual client contact and/or Program activity data for the Administrator's review on a case-by-case basis.

This final rule codifies the current privacy protections in place in the Program employed by the Agency. Any reports on the Program produced by an SBDC, including its contractors and other agents, and the Agency, could not disclose individual client information without consent from the client. Any such reports could only report activity data in the aggregate, unless given consent, to protect the individual privacy of clients.

SBA believes that the language in the regulation does not compromise the intent of the privacy guidelines currently in place. The language states that the 641 has an opt-in clause for clients. Clients do not have to provide their information on the form.

Currently, this section is not used. This section requires all SBDC applicants to comply with the current annual notice of funding opportunity procedures for their new or renewal applications to receive consideration. This final rule reinforces that an SBDC applicant must follow procedures for submitting a new or renewal application, and to clarify the application procedures. SBA did not receive any comments on this section and is moving forward with the rule as proposed.

Currently, this section outlines outdated procedures that are no longer enforced. This final rule codifies the current new application procedures utilized by SBDCs, which require applicants to be located in the same state/region where the SBDC is located. This section also codifies new recruitment and selection procedures for new recipient organizations. As a result of submitted comments, SBA will remove the word “region” from the § 130.410(b).

Currently, this section outlines outdated procedures that are no longer enforced. This final rule revises the existing renewal and nonrenewal process to reflect the process currently utilized by SBDCs. Factors of consideration in the renewal application under paragraph (c) are expanded to include corrective measures implemented as a result of examinations conducted; and the accreditation provision of § 130.810(c), including any conditions from the accreditation report, and corrective measures implemented, affecting the recipient organization and the SBDC network.

SBA added language to § 130.420(c)(2) which incorporates client satisfaction rates as a deciding factor.

Additionally, SBA revised § 130.420(c)(5) citing the current accreditation report, rather than recommendations.

This final rule clarifies and makes transparent the existing approval process of an application by outlining the options to grant approval, conditional approval, or denial of an application. SBA did not receive any comments on this section and is moving forward with the rule as proposed.

This final rule codifies the limitations on grant funding set forth in section 21(a)(6)(C) of the Act and the exceptions set forth under paragraph (b). The legislative language was revised in this codification to be clear and transparent. SBA did not receive any comments on this section and is moving forward with the rule as proposed.

This final rule expands and clarifies the requirements on matching funds for cash, in-kind, or authorized indirect funds so that it is clearer and more transparent.

As a result of comments received, SBA revised the language § 130.450(a) to state that cash match must be equal to or greater than 50 percent of the SBA funds used by the SBDC.

Further, because of comments received, SBA revises § 130.450(b) by adding that only the additional requirements from SBA will need to be identified.

Under this final rule, paragraph (c) is added to clarify matching requirements for insular territories.

Paragraph (d) codifies the requirement for all applicants to submit a certification of cash match and program income, currently required by the notice of funding opportunity.

Paragraph (e) requires all matching funds, in addition to the Federal and program income funds, to be under the direct management of the SBDC State/Region Director. As a result of comments received, SBA adds the following sentence to § 130.450(e) for clarity: “If in-kind contributions are utilized by the SBDC, the State Director or an SBDC Service Center Director is then considered to be in control of those contributions.”

Paragraph (g) expands the list of unallowable sources of matching funds and as a result of comments received to the proposed rule, SBA revises the language in § 130.450(g) to include language that defines overmatching expenditures as those that are derived from eligible matching sources; are reasonable, allowable, and allocable to the SBDC program; are over and above the minimum match required to the Federal expenditures; and are included on the required SBDC financial reporting to SBA for the project period.

This section codifies current budget justification procedures used by SBDCs, as required by the notice of funding opportunity. In accordance with 2 CFR part 200, the SBDC is required to have the prior approval from the Agency for the purchase of equipment, either through a specific disclosure in an annual cost proposal or through an approved amendment to an existing cooperative agreement.

This final rule outlines procedures for foreign travel requests. Specifically, all foreign travel requests are required to be submitted to the appropriate District Director and the Office of Small Business Development Centers (OSBDCs) Program Manager for review and then to the AA/SBDC for final approval.

Paragraph (i) is revised to allow dues to the recognized organization to be charged to the cooperative agreement.

As a result of comments received, SBA deleted proposed § 130.460(f).

As a result of the comments received on proposed § 130.460(g) (now § 130.460(f)) SBA revised the language by deleting the reference to the salary but keeping the rank in the organization. SBA received two comments on proposed § 130.460(i) (now § 130.460(h)) regarding travel stating that this entire section is covered by the omni-circular. However, SBA will keep this paragraph as stated in the proposed rule because it includes details and information not found in 2 CFR part 200.

As a result of comments received, SBA deleted proposed § 130.460(i)(2). Proposed paragraph (i) was redesignated as paragraph (h) in this rule, so proposed paragraphs (i)(3) through (5) are redesignated as paragraphs (h)(2) through (4).

As a result of comments received, SBA deleted proposed § 130.460(j).

Under this final rule, this new section prohibits the use of Federal funds, matching funds and program income as required under the cooperative agreement for the purposes identified as unallowable in applicable sections of 2 CFR part 200. Currently regulations do not restrict the use of these above cited funds. These changes, in accordance with 2 CFR part 200, ensure that program funds are not used by recipient organizations for the purpose of sub-grants, or as seed money for venture capital, or for other purposes outside the scope of authorized SBDC activities. SBA did not receive any comments on this section and is moving forward with the rule as proposed.

This section prohibits SBDC network entities, staff, consultants, or volunteers to solicit or accept fees or other compensation for counseling services, including, but not limited to, business or marketing plan development, loan packaging or credit application assistance, or other advisory services described in the Act. SBA adds a second paragraph to codify, clarify and make more transparent the intent of the section. SBA did not receive any comments on this section and is moving forward with the rule as proposed.

This section codifies the existing requirement that SBDCs may not report program income as a matching resource. Additionally, unused program income is permitted to be carried over to the subsequent budget period by the SBDC network; however, the aggregate amount of network program income cannot exceed 25 percent of the total SBDC budget (Federal and matching expenditures). The intent of the section remains the same; however, it is revised to make it clearer and more transparent.

Based upon comments received, SBA will not revise or change paragraph (b) regarding the use of program income based on the Small Business Act section 21(a)(4)(A) which requires the recipient to match 100 percent Federal grant funding not less than 50 percent cash and not more than 50 percent of indirect costs and in-kind contributions. SBA interprets this paragraph to mean that program income, which are fees collected from recipients of assistance, is excluded to be used as matching funds. Further, SBA requests the sources of match to ensure that the NFE's cost sharing and matching are not paid by the Federal Government under another Federal award or by other Federal sources. Additionally, forms submitted to the SBA require the NFE to provide the source of the matching funds. If the funding sources are not provided to the SBA, SBA could unknowingly approve an award with unallowable sources of matching funds. However, SBA deleted new paragraph (e) regarding program income and SBDC sponsored activities based upon comments received.

The proposed rule created a new section to require the SBDCs to adopt and implement the respective Office of Management and Budget (OMB) guidelines for property standards. SBA received one comment opposing this section as it repeats guidelines outlined in 2 CFR part 200. Based upon the comment received, SBA deleted this section from the final rule.

Current regulations outline the process for SBDC submission of reimbursement requests and advancements. Based upon comments received, SBA will delete this section.

Currently, this section is not used. This section codifies program requirements currently enforced through the notice of funding opportunity and followed by the SBDCs. Under this final rule, paragraph (a) requires a recipient organization to incorporate the cooperative agreement into its SBDC sub-agreements and contracts, which is already being done by the SBDCs.

As a result of comments, paragraph (b) now states that SBA reserves the right to disapprove any sub-agreement entered into the by recipient organization with SBDC service center organizations, vendors, or contractors.

Paragraph (c) outlines procedures for developing performance goals and measurements, negotiating the goals and measurements, and consequences of not meeting those goals and measurements. Also, SBA loan goals are not negotiated or incorporated into the cooperative agreement without the written approval of the AA/SBDC.

As a result of comments submitted, paragraph (d) is deleted.

As a result of comments received, SBA will delete both the last sentence in the current paragraph and newly designated paragraphs (b) and (c).

This section revises paragraph (a) by outlining required prior approval requests by SBDCs for revisions to the cooperative agreement. However, due to comments received, SBA will delete paragraph (a)(2). Additionally, due to comments received, SBA revised paragraph (a)(3) to add the following language, “If supplemental funds are available for distribution, SBA will publish a notice of funding opportunity in consultation with the Recognized Organization.”

SBA will also add new paragraph (b) for clarity and transparency. As is current practice, paragraph (b) would authorize the AA/SBDC to amend one or more cooperative agreements to authorize unanticipated out-of-state travel by SBDC personnel responding to a need for services in a Presidentially Declared Major Disaster Area and to address how travel costs are to be handled. Paragraph (b) authorizes SBA to provide financial assistance to SBDCs, or any proposed consortium of such individuals or entities, to spur disaster recovery and growth of small business concerns located in an area for which the President or SBA Administrator has declared a major disaster.

Due to comments received, SBA added the following language at the beginning of paragraph (b)(1), “In consultation with the Recognized Organization . . .”

This section clarifies the existing procedures for a financial dispute or a programmatic or nonfinancial dispute for clarity and transparency. The intent of this section remains the same. As a result of comments received, SBA replaces the District Office reference with the Grants Management Officer.

This section revises and clarifies the procedures for suspension, termination or non-renewal for clarity and transparency.

Proposed paragraph (a)(1) is deleted in this final rule due to comments received and SBA acknowledges that the causes for termination are outlined in 2 CFR 200.340. Proposed paragraph (a)(2) (now paragraph (a)(1)) allows the recipient organization to continue to conduct project activities and incur allowable expenses until the end of the current budget period in instances when the SBA has elected to not to renew a cooperative agreement. Under this final rule, if a recipient organization does not seek to renew the grant, it must notify the District Office and send a letter of intent to withdraw to the AA/SBDC.

Paragraph (a)(2) of this final rule (proposed paragraph (a)(3)) adds the sentence, “A decision to suspend a cooperative agreement is effective immediately.” Additionally, the notice of suspension recommends that the recipient organization cease work on the project immediately and places SBA under no obligation to reimburse any expenses incurred by a recipient organization while it is under suspension.

Under this final rule, paragraphs (b)(11) through (15) would be added for clarity and transparency on the causes for termination or suspension.

Currently, the administrative procedures for suspension, termination, and non-renewal are found in the cooperative agreement. Under this final rule, the new administrative procedures are outlined under paragraph (c) as well as the responsibilities of the AA/SBDC in these circumstances.

Under this final rule, paragraph (d) is added to outline the administrative review of suspension, termination, and non-renewal actions as well as the required process for SBDCs to submit the request for administrative review. Further, due to comments received on the proposed rule, SBA is revising paragraph (d) by replacing the word “recommendations” with the word “conditions.”

This section is revised to clarify the existing broad language used to outline program oversight requirements by adding three new paragraphs. SBA received one comment concerning new paragraph (c) regarding a change in the SBA primary contact and notification of the recipient organization. The commenter is questioning why this included in the regulations and if it is final. SBA is not changing this paragraph and believes that it is necessary to keep this paragraph for notification purposes.

This final rule revises paragraph (c) to reiterate 15 U.S.C. 648(k)(2) of the Small Business Act and to state that SBA may not renew or extend any cooperative agreement with an SBDC unless the center has been approved under the accreditation program, except that the AA/SBDC may waive such accreditation requirement, at their discretion, upon showing that the center is making a good faith effort to obtain accreditation. This section clarifies and provides more detail on the review authority provided to SBA regarding the SBDC Program. SBA received one comment regarding paragraph (a) (Site visits). However, SBA is keeping the paragraph in this final rule as the SBA believes that more information is needed to provide to the recipient organization regarding site visits. Section 21(k)(2) of the Small Business Act states that the Administration will develop and implement a biennial programmatic and financial examination of each small business development center established pursuant to this section.

This final rule revises the existing broad instructions on records and recordkeeping requirements for an SBDC to provide clarity and transparency. The revisions include more narrow instructions to clarify each required step in the current process.

SBA received four comments stating that annual physical site visits are not necessary to conduct required subrecipient monitoring. Lead centers should be allowed flexibility in determining whether a physical or virtual visit will meet the needs of its required subrecipient monitoring. In cases where there have been no changes in leadership at the subrecipient and no problems exist, a virtual visit may suffice. Further, the comments state that this appears to unnecessarily restrict the method (in-person vs virtual) by which centers are reviewed and it is in contradiction to any risk-based approach that a Lead Center may deploy.

SBA Response: SBA accepts these comments and revises the paragraph to state that the Lead Center must annually conduct monitoring of its Service Centers either in-person or virtually. Moreover, a physical on-site visit must be conducted at least once every four years by the recipient organization; or when SBA deems it necessary, such as, when there is a change in leadership, either at the Service Center or the Lead Center, or the SBA has or receives concerns regarding a Service Center.

This final rule requires SBDCs to submit performance and financial reports to SBA for review, as currently required by the notice of funding opportunity. The proposed revisions outline the frequency of the reporting, electronic data reporting which includes counseling and training records, and specific details for each of the performance reports and financial reports. SBA is not changing paragraph (b)(3) as the dates and times may change and the Agency should have the flexibility to do put the dates and times in the NOFO.

Due to comments received on the proposed rule, SBA revises paragraph (d) in this final rule to add an introductory sentence which states, “Performance reports must include the data specified below, along with any other information the SBDC feels may be relevant to a full appraisal of its performance.”

Further, SBA deletes paragraph (e) due to comments received on the proposed rule.

Current regulations provide general but outdated, compliance instructions to the SBDCs regarding audits and investigations performed by SBA's Office of Inspector General. This section would be updated and revised with more specific and clear instructions. However, due to comments received on this proposed section, SBA refers to 2 CFR part 200.

Current regulations do not include closeout procedures; rather, these are found in the cooperative agreement. Under this final rule, this new section outlines closeout procedures for the recipient organization to ensure that program funds and property acquired or developed under the SBDC cooperative agreement are fully reconciled and transferred seamlessly between recipient organizations, service centers, or other Federal programs. SBA did not receive any comments on this section and is moving forward with the rule as proposed.

The Office of Management and Budget (OMB) has determined that this rule is a “significant” regulatory action for the purposes of Executive Order (E.O.) 12866. Accordingly, the next section contains SBA's Regulatory Impact Analysis.

The SBDC rules were last revised in 1995 ( see 60 FR 31504) (June 13, 1995). However, the statute authorizing the SBDC Program has been amended numerous times since the last rulemaking (for a full listing of amending legislation, see the history notes at 15 U.S.C. 648). For example, SBA updates the regulation as required by section 21(a)(7) of the Small Business Act to protect the privacy of any individual or small business receiving assistance in the Program.

SBA believes it is now necessary to revise the regulations to outline current policies and procedures for the SBDC Program for consistency. This regulation also incorporates the changes required by the 2 CFR part 200 and other grant changes that have taken place over the last 25 years. Additionally, the America's Small Business Development Centers (ASBDC), the recognized association as established in section 21(a)(3)(A), has requested changes that are consistent with the revisions made in the notice of funding opportunity and cooperative agreement. Furthermore, the SBA received 133 comments to the ANPRM that was published on April 2, 2015, some of which are incorporated in this rule.

In the absence of this rule, there are discrepancies between the regulations and Program governing documents, including the notice of funding opportunity and the cooperative agreement. Currently, SBA and the SBDCs reference three or more documents to find guidance on the Program, and the annual notice of funding opportunity and cooperative agreement have become, for all practical purposes, documents which interpret the statute. Also, SBA has limited authority to hold SBDCs accountable for low or non-performance. While low or non-performance is a rare occurrence, SBA's only current recourse is to write conditions into the SBDC notice of award. The rule strengthens SBA's oversight and accountability, as intended by Congress, and reduces burden by consolidating programmatic guidance to one document.

The benefits of this rule are based on incorporating all the changes that have been made with the publication of 2 CFR part 200, other grant changes over the past 20 years, and a streamlining of both the notice of funding opportunity and the cooperative agreement. Specifically, the rule provides guidance on:

• The determination of the official name of the SBDC.

• Directing minimum reporting for, and hiring of, State Directors.

• Applying for other grants/other sources of funds.

• Clarifying Project Officer responsibilities.

• Clarifying matching funds, such as in-kind funds, funding expenditures, and eligible entities budget justification.

• The collection and use of individual SBDC client data.

• Adding new sections regarding suspension, termination, and non-renewal, payments and reimbursements, property standards, confidential information—among others.

The new regulations will simplify and streamline notice of funding opportunity language to contain only that information that the applicant organization must submit and not all the other information that will now be written into the regulations. Moreover, having the regulations in one document would make administering the Program by the SBDCs much easier by not having to reference three or more different documents. The estimated reduction in burden hours to this consolidation is presented in the table below:

There are currently 63 SBDCs that benefit from this new regulation. We estimate the changes to the rule will create a four-hour benefit per SBDC from better information leading to better SBDC choices because the revisions will clarify definitions and provide guidance on various issues. We estimate a two-hour increase in efficiency per SBDC due to the clarity that the revisions to the rule will provide because the rule will align with the notice of funding opportunity and the cooperative agreement. Using the average hourly wage of an SBDC State Director, the total annual benefit of these revisions comes to $45,443.16 for all the 63 SBDCs. We anticipate that these benefits will be realized over perpetuity in that SBDCs will continue to experience better decision-making from the clarification and additional guidance provided and increased efficiency from only having to reference one document.

There are also several benefits that cannot be quantified. One of these benefits is the increased security that the rule provides SBDCs through its requirements to protect the privacy of an individual or small business receiving assistance in the Program. Another benefit to revising and updating the regulations is that it would give SBA more authority to enforce the requirements as written in the regulations which is something currently lacking in the Program.

There are some costs incurred by the SBDCs in initially reading and interpreting the new regulation. There is an additional requirement for application procedures which currently only exists in the notice of funding opportunity. We estimate that this will add approximately two hours of burden for SBDCs. The SBDCs also must provide a certification of cash match and program income for which a requirement currently exists only in the notice of funding opportunity. Additionally, the rule would require SBDCs to submit performance and financial reports to SBA for review, as currently required by the notice of funding opportunity. These requirements are reflected in the most recent Information Collection Requests for the reporting requirements for SBDCs, so while reflected here, these requirements do not change the Paperwork Reduction Act cost burden. SBA staff must review these reporting requirements which we estimate will take SBA staff 30 minutes twice a year to review. These costs are summarized below:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Thales FMC2 NAVM, part number (P/N) C13084CA03, installed on, but not limited to, airplanes. The NPRM published in the Federal Register on August 24, 2023 (88 FR 57904). The NPRM was prompted by AD 2022-0024, dated February 4, 2022, issued by the European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union (referred to after this as the MCAI). The MCAI states that Thales FMC2 NAVM, P/N C13084CA03, provides erroneous guidance for navigation procedures of the flight management system due to issues with the software. This condition, if not addressed, could compromise the safety margins of the airplane. To address the unsafe condition, the MCAI requires revising the AFM with operational instructions for the affected airborne navigation procedures of the AFM. The MCAI also requires updating the navigation database software, and prohibits installing a database for the Thales FMC2 NAVM, P/N C13084CA03, unless it does not include the procedures specified in section II of Thales Service Information Letter F9111-J70859DN-00, issued January 18, 2022 (Thales SIL F9111-J70859DN-00).

In the NPRM, the FAA proposed to require revising the existing AFM for your airplane and updating the navigation database. The FAA also proposed to prohibit installing a database unless certain procedures were not included. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1716.

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

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. This AD is adopted as proposed in the NPRM.

The FAA reviewed Thales SIL F9111-J70859DN-00. This service information specifies updating the Thales FMC2 NAVM, P/N C13084CA03, navigation database.

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

The MCAI applies to all Thales FMC2 NAVMs, P/N C13084CA03, installed on, but not limited to Dassault (formerly Bréguet) Br.1150 Atlantique 2 (ATL2) maritime patrol airplanes, and this AD does not apply to those airplanes because those airplanes do not have an FAA type certificate. Currently, no airplanes on the U.S. registry incorporate the navigation equipment affected by this AD.

There are currently no affected airplanes on the U.S. registry with a Thales FMC2 NAVM, P/N C13084CA03, installed. In the event a U.S.-registered airplane would have this equipment installed, the following is an estimate of the costs to comply with this AD.

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

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

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

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

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

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

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

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it removes Class D and Class E airspace in Milton, FL. The FAA determined that this update is necessary to support operations in the area due to the closing of the air traffic control tower and cancellation of all instrument approaches.

The FAA published a notice of proposed rulemaking for Docket No. FAA 2023-1780 in the Federal Register (88 FR 60910; September 6, 2023), removing Class D airspace, Class E surface airspace, and Class E airspace extending upward from 700 feet above the surface for Choctaw NOLF, Milton, FL, as the air traffic control tower has closed, and all instrument approaches canceled. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and Class E airspace designations are published in Paragraphs 5000, 6002, and 6005, respectively, of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next FAA Order JO 7400.11 update.

FAA Order JO 7400.11H 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 removing Class D airspace, Class E surface airspace, and Class E airspace extending upward from 700 feet above the surface for Choctaw NOLF, Milton, FL, due to the closing of the air traffic control tower, and cancellation of all instrument approaches. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.

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

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

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

Please note that all comments received are considered part of the public record and made available for public inspection online at www.regulations.gov. If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment contains so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted www.regulations.gov.

Personal identifying information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. If you wish to inspect the agency's public docket file in person by appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.

In this document, the Bureau makes minor revisions to regulations in 28 CFR part 543, subpart C—Federal Tort Claims Act that clarify requirements for presenting claims and correct obsolete and/or incorrect references to Bureau offices. Each of these minor changes is discussed below.

Where to present the claim. The Bureau revises section 543.31, paragraph (c), to delete extraneous language and language indicating that if a loss or injury occurs in a training center, claimants may forward claims to the Associate General Counsel, Federal Law Enforcement Training Center. This inaccurately identifies the appropriate office designated to receive claims involving Bureau training centers. Claims are now accepted and processed at the appropriate Bureau Regional Counsel office for the region in which the training center is located.

Deletion of “a training center.” Also in section 543.32, Processing the claim, the Bureau deletes the phrase “a training center” in paragraph (b). This paragraph indicates that if a claim is submitted to the incorrect office, the claimant will be notified that the claim was transferred to the appropriate office. The appropriate office may be another BOP office or another Federal agency. It will no longer refer to a training center, however, because such claims will no longer be processed there (see discussion above on “where to present the claim”).

Requests for additional information during investigations of claims. The Bureau deletes “rejection or” in the last sentence of section 543.32(c) to clarify that, after a claim has been properly presented and an investigation initiated, if a claimant fails to provide requested information, the claim may be denied.

Specificity of office designation. In paragraph (d) of section 543.32, regarding the offices with authority to deny or propose settlement of a claim, the Bureau clarifies that the Associate General Counsel, Litigation Branch, in the Office of General Counsel will investigate and propose settlement, and that if the proposed settlement exceeds the authority granted to the Bureau of Prisons (not authority granted to the Office of General Counsel), the General Counsel will seek Department of Justice approval.

No consideration of appreciation/depreciation. Finally, the Bureau deletes paragraph (f) of section 543.32, regarding the consideration of appreciation or depreciation of lost or damaged property during settlement of a claim. The Bureau deletes this paragraph because the former Department of Justice policy that required consideration of appreciation or depreciation, Policy Statement 2110.23C (Filing And Settlement Of Claims Of Civilian Personnel For Damages To Or Loss Of Personal Property Incident To Service), was replaced with 1400.05 (Claims for Damage to, or Loss of, Personal Property), which does not allow for the use of appreciation/depreciation to determine the value of lost or damaged property. The Bureau also adjusts the designation of the paragraphs that follow to account for this deletion.

“Unless a statutory exception applies, the APA requires agencies to publish a notice of proposed rulemaking in the Federal Register before promulgating a rule that has legal force.” Little Sisters of the Poor Sts. Peter & Paul Home v. Pennsylvania, 591 U.S.---, 140 S. Ct. 2367, 2384 (2020). The Administrative Procedure Act (5 U.S.C. 553(b)(3)(B)) allows exceptions to notice-and-comment rulemaking “when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Further, sec. 553(d) provides an exception to the usual requirement of a delayed effective date when an agency finds “good cause” that the rule be made immediately effective.

An agency may claim notice and comment is “unnecessary” where the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and public. Mack Trucks, Inc. v. EPA, 682 F.3d 87, 94 (D.C. Cir. 2012); Util. Solid Waste Activities Grp. v. EPA, 236 F.3d 749, 754-55 (D.C. Cir. 2001). Unlike previous Bureau interim rules courts have addressed, this Interim Rule is by its nature non-substantive, functioning only as updated step-by-step guidance for how individuals, including current and former inmates, can present administrative tort claims. Cf. Paulsen v. Daniels, 413 F.3d 999 (9th Cir. 2005) (holding the Bureau violated the APA by issuing an interim rule that had “the effect . . . [of] deny[ing] program eligibility to certain categories of inmates . . .).

This rulemaking is exempt from normal notice-and-comment procedures because advance notice and public comment in this instance are unnecessary. The change to this regulation is non-substantive, minor, routine, insignificant, and made only to clarify Federal Tort Claims Act processing. This rulemaking makes no change to any rights or responsibilities of the agency or any regulated entities. Instead, this rulemaking seeks to promptly clarify legal procedures primarily for the benefit of individuals, including current and former federal inmates, who present administrative tort claims against the Bureau. For the same reasons, the Bureau finds that “good cause” exists to make this rule effective upon publication. Nevertheless, the Bureau invites public comment on this Interim Rule.

Executive Orders 12866 and 13563 . This rule does not fall within a category of actions that the Office of Management and Budget (OMB) has determined constitutes a “significant regulatory action” under section 3(f) of Executive Order 12866 and, accordingly, it was not reviewed by OMB. The economic impact of this proposed rule is limited to inmates in the custody of the Federal Bureau of Prisons.

Executive Order 13132 . This rule will not have substantial direct effect on the States, on the relationship between the National Government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, under Executive Order 13132, the Bureau determines that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Regulatory Flexibility Act . The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this rule and by approving it certifies that it will not have a significant economic impact upon a substantial number of small entities for the following reasons: This rule pertains to the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds.

Unfunded Mandates Reform Act of 1995 . This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, 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.

Congressional Review Act . This rule is a not major rule as defined by the Congressional Review Act, 5 U.S.C. 804. This proposed rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Under rulemaking authority vested in the Attorney General in 5 U.S.C 301; 28 U.S.C. 509, 510 and delegated to the Director of the Bureau of Prisons in 28 CFR 0.96, the Bureau revises 28 CFR part 543 as follows.

I. Background

The Federal Mediation and Conciliation Service (FMCS) works to build better, more effective workplace relationships and mitigate the damage from inevitable conflict through preventive dialogue, honest communication, and responsive strategies. Through our mission, FMCS provides professional services to a wide range of Federal, state, and local government agencies to resolve disputes, design conflict management systems, build capacity for constructive conflict management, and strengthen inter-agency and public-private cooperation. In offering these services, FMCS recipients must agree to abide by the final rule to preserve the integrity of the provided services.

Paragraphs (a) through (g) set forth general terms of service applicable to all FMCS services. More specifically:

Paragraph (a) explains that when FMCS services are chosen, recipients of the services agree to abide by the terms as well as any other terms of services provided by FMCS and will hold FMCS and any FMCS neutral harmless.

Paragraph (b) notes FMCS will determine the date, time, and manner of services in accordance with applicable statutes and regulations.

Paragraph (d) explains that any person shadowing an FMCS neutral agrees to be bound by the same confidentiality standards as the FMCS neutral, which will be honored by the parties.

Paragraph (e) notes that FMCS recognizes the importance of mediator confidentiality, and as such FMCS will not produce materials related to a mediation, with some exceptions.

Paragraph (f) states that this section does not negate or modify FMCS's Confidential Commercial Information (CCI) regulation.

Paragraph (g) discusses that FMCS will make the terms publicly available and make a copy available to all parties upon request.

Paragraphs (a) through (g) sets forth additional terms of service specific to mediation, facilitation, & other alternative dispute resolution services provided by FMCS.

Paragraphs (a) through (c) set forth additional terms of service specific to virtual services provided by FMCS.

Paragraphs (a) through (e) set forth additional terms of service specific to grievance mediations and Federal sector inter-agency agreement mediations provided by FMCS.

This section sets forth additional terms of service specific to training and outreach presentations provided by FMCS.

Under 5 U.S.C. 553(a)(2), rules relating to agency management or personnel are exempt from the notice and comment rulemaking requirements of the Administrative Procedure Act (APA). In addition, under 5 U.S.C. 553(b)(3)(A), notice and comment rulemaking requirements do not apply to rules concerning matters of agency organization, procedure, or practice. Given that the rule concerns matters of agency management or personnel, and organization, procedure, or practice, the notice and comment requirements of the APA do not apply here. Nor is a public hearing required under 45 U.S.C. 160a. However, in issuing a final rule on this matter, FMCS, previously issued a proposed rule with a notice and comment period and received no public comments.

This final rule is not a significant rule for purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget.

FMCS has determined under the Regulatory Flexibility Act, 5 U.S.C. chapter 6, that this final rule would not have a significant economic impact on a substantial number of small entities because it would primarily affect FMCS employees.

The Paperwork Reduction Act, 44 U.S.C. chapter 35, does not apply to this final rule because it does not contain any information collection requirements that would require the approval of the Office of Management and Budget.

FMCS has determined that this final rule does not meet the definition of a rule, as defined by the Congressional Review Act, 5 U.S.C. chapter 8, and thus does not require review by Congress.

The public comment period on the proposed rule opened on September 1, 2023, the date of its publication in the Federal Register , and closed on October 31, 2023. During this period, FMCS did not receive any comments on our proposed rule.

For the reasons discussed in the preamble, FMCS amends 29 CFR chapter XII by adding part 1406 to read as follows:

Executive Summary Purpose and Authority

This final rule makes technical corrections, updates, and clarifications to several Pension Benefit Guaranty Corporation (PBGC) regulations.

PBGC's legal authority for this rulemaking comes from section 4002(b)(3) of the Employee Retirement Income Security Act of 1974 (ERISA), which authorizes PBGC to issue regulations to carry out the purposes of title IV of ERISA, and section 4262 of ERISA (Special Financial Assistance by the Corporation), which permits PBGC, in consultation with the Secretary of the Treasury, to impose reasonable conditions by regulation or other guidance on an eligible multiemployer plan that receives special financial assistance (SFA). It also comes from section 4003 of ERISA (Operation of Corporation); section 4006 of ERISA (Premium Rates); section 4010 of ERISA (Authority to Require Certain Information); section 4022 of ERISA (Single-Employer Plan Benefits Guaranteed); section 4041A of ERISA (Termination of Multiemployer Plans); section 4043 of ERISA (Reportable Events); and section 4211 of ERISA (Methods for Computing Withdrawal Liability).

The major provisions of this regulatory action amend PBGC's regulations on: (1) Special Financial Assistance by PBGC (29 CFR part 4262) to clarify the calculation methodology for the condition requiring a phased recognition of SFA in a plan's determination of withdrawal liability for plans that receive SFA; and (2) Termination of Multiemployer Plans (29 CFR part 4041A) to update the reference to the dollar limit for lump-sum distributions in the closeout of sufficient multiemployer plans (reflecting updated dollar limits for pension plans under section 304 of the SECURE 2.0 Act of 2022 (SECURE 2.0)). 1 In addition, this regulatory action makes other clarifications, corrections, and updates.

Electronic Availability

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

On October 12, 2023, OFAC issued GL 73 to authorize certain transactions otherwise prohibited by the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587. GL 73 was made available on OFAC's website ( https://ofac.treasury.gov ) when it was issued. The text of this GL is provided below.

(a) Except as provided in paragraph (c) of this general license, all transactions prohibited by Executive Order (E.O.) 14024 that are ordinarily incident and necessary to one of the following activities involving the blocked persons or vessels described in paragraph (b) are authorized through 12:01 a.m. eastern standard time, January 8, 2024, provided that any payment to a blocked person must be made into a blocked account in accordance with the Russian Harmful Foreign Activities Sanctions Regulations (RuHSR):

(1) The safe docking and anchoring of any of the blocked vessels listed in paragraph (b) of this general license (“blocked vessels”) in port;

(2) The preservation of the health or safety of the crew of any of the blocked vessels; or

(3) Emergency repairs of any of the blocked vessels or environmental mitigation or protection activities relating to any of the blocked vessels.

(b) The authorization in paragraph (a) of this general license applies to the following blocked persons and vessels listed on the Office of Foreign Assets Control's Specially Designated Nationals and Blocked Persons List and any entity in which any of the following persons own, directly or indirectly, individually or in the aggregate, a 50 percent or greater interest:

(1) Ice Pearl Navigation Corp (registered owner of YASA GOLDEN

BOSPHORUS, IMO 9334038); or

(2) Lumber Marine SA (registered owner of SCF PRIMORYE, IMO 9421960).

(c) This general license does not authorize:

(1) The entry into any new commercial contracts involving the property or interests in property of any blocked persons, including the blocked entities and vessels described in paragraph (b) of this general license, except as authorized by paragraph (a);

(2) The offloading of any cargo onboard any of the blocked vessels, including the offloading of crude oil or petroleum products of Russian Federation origin, except for the offloading of cargo that is ordinarily incident and necessary to address vessel emergencies authorized pursuant to paragraph (a) of this general license;

(3) Any transactions related to the sale of crude oil or petroleum products of Russian Federation origin;

(4) Any transactions prohibited by Directive 2 under E.O. 14024, Prohibitions Related to Correspondent or Payable-Through Accounts and Processing of Transactions Involving Certain Foreign Financial Institutions;

(5) Any transactions prohibited by Directive 4 under E.O. 14024, Prohibitions Related to Transactions Involving the Central Bank of the Russian Federation, the National Wealth Fund of the Russian Federation, and the Ministry of Finance of the Russian Federation; or

(6) Any transactions otherwise prohibited by the RuHSR, including transactions involving the property or interests in property of any person blocked pursuant to the RuHSR, other than transactions involving the blocked persons or vessels in paragraph (b) of this general license, unless separately authorized.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register OMB Office of Management and Budget NPRM Notice of Proposed Rulemaking (Advance, Supplemental) § Section U.S.C. United States Code FEC Florida East Coast FL Florida II. Background and Purpose

On June 23, 2023, we published a temporary deviation entitled, “Drawbridge Operation Regulation; Okeechobee Waterway, Stuart, FL” in the Federal Register (88 FR 37470). The original comment period closed on August 4, 2023. Based on the comments received and other concerns that were voiced by the public, we rescinded that test deviation, and published a new one.

On August 11, 2023, we published second a temporary deviation entitled, “Drawbridge Operation Regulation; Okeechobee Waterway, Stuart, FL” in the Federal Register (88 FR 54487). The second comment period closed on October 15, 2023. The temporary deviations are testing a more predictable operating schedule for the FEC Railroad Bridge and contains useful background and analysis related to the temporary deviation. The public is encouraged to review the temporary deviation.

We originally set a 60-day comment period for the temporary deviation and determined reopening the comment period until the end of the temporary deviation is necessary due to the delay in the start of additional railway service. Additional railway service was delayed and did not commence until late September 2023. We feel the start of additional railway service so close to the end of the comment period did not afford the public adequate opportunity to provide comments.

This notice to reopen the comment period ensures notice and opportunity to comment on the operation of the drawbridge before determining whether a permanent change to the schedule is needed.

The comment period is now open through November 30, 2023. Any comments received in the period between when the initial comment period closed on October 15, 2023 and the reopening of the comment period on November 7, 2023 will also be considered.

This notice is issued under authority of 33 U.S.C. 1223 and 5 U.S.C. 552.

We view public participation as essential to determining the needs of the public and will consider all comments and material received during the comment period. Your comment can help shape the outcome of future actions. If you submit a comment, please include the docket number for this test deviation, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

Submitting comments. We encourage you to submit comments through the Federal Decision Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG- 2022-0222 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If your material cannot be submitted using https://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

Viewing material in docket. To view documents mentioned in this test deviation as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. Also, if you go to the online docket and sign up for email alerts, you will be notified when comments, future actions or updates are posted to the docket.

We review all comments received, but we will only post comments that address the topic of the test deviation. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

Personal information. We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have provided. For more about privacy and submissions in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register pUXO Potential Unexploded Ordinance ROV Remotely Operated Vehicle § Section TFR Temporary Final Rule U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) because Coast Guard Sector Virginia was notified on October 25, 2023 that the M/V HOS MYSTIQUE will conduct survey operations using an ROV to identify pUXOs beginning November 1, 2023 and a safety zone is necessary to protect the public from the safety hazards associated with any disturbances of pUXOs, as well as, the obstruction to navigation during the use of a tethered ROV. It is impracticable to publish an NPRM because we must establish this safety zone by November 1, 2023, to protect the public.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because immediate action is needed to respond to the potential safety hazards associated with the survey operations utilizing ROVs in shallow water to identify pUXO.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Virginia (COTP) has determined that potential hazards associated with the survey operations starting November 1, 2023, and continuing until late December, will be a safety concern for any persons or property within a 550-yard radius of the survey vessel. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone from potential hazards that arise from disturbing pUXOs and the use of tethered ROVs to identify them.

This rule establishes a safety zone on November 1, 2023, through December 31, 2023. The safety zone encompasses all waters inside a radius of 550 yards from the actual position of the M/V HOS MYSTIQUE. During survey operations, a tethered ROV will be used and contained within the safety zone. Two Rigid Hull Inflatable Boats (RHIBs) will operate as safety vessels during operations, one to the north and one to the south of each target while the ROV is deployed. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during survey operations. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or designated representative.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). 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 operations requirements of the survey requiring the safety zone. Vessel traffic will be able to safely transit around this safety zone during the survey. The date range for this survey was selected to minimize vessel traffic impacts. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone while survey operations are not actively conducting operations with the potential for hazards.

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 rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that prohibits entry within 550 yards of the M/V M/V HOS MYSTIQUE only during the active survey operations which will take place in November and December of 2023. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

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

Skanska-Corman-McLean, Joint Venture notified the Coast Guard that it will be conducting demolition of the old Governor Harry W. Nice/Senator Thomas “Mac” Middleton Memorial (US-301) Bridge, which will occur from 12:01 a.m. on November 8, 2023, to 11:59 p.m. on January 30, 2024. The bridge is located on the Potomac River, at mile 43.3, between Charles County, MD and King George County, VA. The segment of the old bridge over waters that include the bridge piers sections between Piers 14 and the east riverbank of the Potomac River requires the use of explosives, and debris removal and hydrographic surveying equipment. Marine equipment, including barges, positioned in the Potomac River will be used to support the bridge demolition and debris removal operation. This operation also requires the use of a temporary commercial mooring buoy in the Potomac River south of the old bridge where the explosives barge will be kept. Hazards from the demolition and debris removal work include accidental discharge of explosives, dangerous projectiles, hanging ropes or cables, and falling objects or debris. In response, on October 12, 2023, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Potomac River, Between Charles County, MD and King George County, VA (USCG-2023-0795). During the comment period that ended October 27, 2023, we received no comments.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because immediate action is needed to respond to the potential safety hazards associated with demolition of the old Governor Harry W. Nice/Senator Thomas “Mac” Middleton Memorial (US-301) Bridge.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Maryland-National Capital Region (COTP) has determined that potential hazards associated with the demolition and removal of the old Governor Harry W. Nice/Senator Thomas “Mac” Middleton Memorial (US-301) Bridge would be a safety concern for anyone within or near project area.

As noted above, we received no comments on our NPRM published October 12, 2023. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a safety zone from 12:01 a.m. on November 8, 2023, to 11:59 p.m. on January 30, 2024. The safety zone would cover the following areas:

Area 1. All navigable waters of the Potomac River, encompassed by a line connecting the following points beginning at 38°21′49.10″ N, 076°59′32.46″ W, thence south to 38°21′40.04″ N, 076°59′30.62″ W, thence east to 38°21′43.52″ N, 076°59′15.22″ W, thence south along the shoreline to 38°21′52.49″ N, 076°58′59.70″ W, and west back to the beginning point, located between Charles County, MD and King George County, VA.

Area 2. All navigable waters of the Potomac River, within 1,500 feet of the explosives barge located in approximate position 38°21′21.47″ N, 076°59′45.40″ W.

The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled demolition and debris removal. Except for marine equipment and vessels operated by Skanska-Corman-McLean, Joint Venture, or its subcontractors, no vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The term designated representative also includes an employee or contractor of Skanska-Corman-McLean, Joint Venture for the sole purposes of designating and establishing safe transit corridors, to permit passage into or through the safety zone, or to notify vessels and individuals that they have entered the safety zone and are required to leave.

The COTP will notify the public that the safety zone will be enforced by all appropriate means to the affected segments of the public, as practicable, in accordance with 33 CFR 165.7(a). Such means of notification will also include, but are not limited to, Broadcast Notice to Mariners. Vessels or persons violating this rule are subject to the penalties set forth in 46 U.S.C. 70036 and 46 U.S.C. 70052 . The regulatory text we are proposing appears at the end of this document.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). 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 regulated area. The temporary safety zone comprises two separate geographic areas which total a maximum of approximately 900 yards in width and 350 yards in length. This safety zone would impact a small, designated area of the Potomac River for a maximum 84 total days, but we anticipate that there would be no vessels that are unable to conduct business because of the safety zone. Excursion vessels and commercial fishing vessels are not impacted by this rulemaking. Excursion vessels do not operate in this area, and commercial fishing vessels are not impacted because of their draft. Some towing vessels may be impacted, but bridge project personnel have been conducting outreach throughout the project to coordinate with those vessels. This safety zone would be established outside the normal recreational boating season for this area, which occurs during the summer. Moreover, the Coast Guard would issue Local Notices to Mariners and a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone on days it is being enforced.

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 received no comments from the Small Business Administration on this rulemaking. 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 rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 84 total days that would prohibit entry within a portion of the Potomac River. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

Background and Purpose for the Amendment

In 1974, Congress designated the 57-mile Chattooga River (and its 15,432-acre corridor) as a component of the National Wild and Scenic River System. The uppermost portion of the Chattooga Wild and Scenic River is located in the Nantahala National Forest (NF) in North Carolina. The river then flows in a southerly, south-westerly direction to form the boundary between Georgia and South Carolina, and also the boundary between the Chattahoochee NF (in Georgia) and the Sumter NF (in South Carolina).

In the initial 1976 river management plan for the Chattooga River, the U.S. Forest Service used zoning to manage the upper and lower segments of the river for different recreational opportunities. As part of the initial zoning effort, management direction prohibited floating on the upper segment above GA/SC Highway 28 (which includes a section of the river in the Sumter NF in South Carolina, a section of the river in the Chattahoochee NF in Georgia, and all of the sections of the river in the Nantahala NF in North Carolina).

Under the authority of 36 CFR 261.70(a)(7), these prohibitions were codified at 36 CFR 261.77 ( Federal Register , 43 FR 3706, January 27, 1978). In general terms, 36 CFR 261.77 prohibits floating activities on the Chattooga Wild and Scenic River unless authorized by a permit. Consistent with the river management plan that is incorporated into the forest plans, the original terms and conditions of the permits issued pursuant to 36 CFR 261.77 allowed floating on the Chattooga Wild and Scenic River but only on that portion of the river located downstream of GA/SC Highway 28. Therefore, due to the combination of 36 CFR 261.77 and the terms of the self-registration permit issued pursuant to that regulation, floating was only allowed on that section of the river downstream of GA/SC Highway 28 and prohibited upstream from that location. However, in 2012 that management direction changed, allowing for an increase in boating opportunities upstream of GA/SC Highway 28. To be consistent with this new management direction, this final rule amends 36 CFR 261.77.

On January 31, 2012, the Chattahoochee-Oconee, Nantahala and Sumter National Forests issued Decision Notices that amended their forest plans to incorporate new management direction for the Chattooga Wild and Scenic River. These changes were based upon an Environmental Assessment titled “Managing Recreation Uses in the Upper Segment of the Chattooga Wild and Scenic River Corridor.” Generally, these new decisions allow floating along certain segments of the Chattooga Wild and Scenic River above GA/SC Highway 28, contingent upon certain restrictions.

In the previous regulations at 36 CFR 261.77, the sections of the river that lie within the Nantahala NF in North Carolina were not addressed. This area instead has been regulated by Forest Supervisor's closure order pursuant to subpart B of 36 CFR part 261. To be consistent with the new management direction, this final rule amends 36 CFR 261.77 to include those sections of the river that lie within the Nantahala NF.

The original regulations at 36 CFR 261.77(d) and (e) also only addressed the portion of the river within the boundaries of the Chattahoochee National Forest. This final rule changes this to be applicable to “any portion or segment of the Chattooga River within National Forest System land.” Through the public comment period, it was pointed out the original regulation made a distinction between States because the 1971 Wild and Scenic River Report for the Chattooga River identified that the State of South Carolina has title to the riverbed and water from the mean high-water mark to the middle of the river. However, it has been firmly established in law and by the courts that the Secretary of Agriculture has the authority to regulate the public use of waters within the boundaries of a Wild and Scenic River.

Another change in the proposed rule involved an effort to use more accurate and consistent terminology by replacing the term “special use permit” with “special use authorization.” This however, created a certain amount of confusion with the public. In an effort to reduce the uncertainty as to how to interpret the use of the term “special use authorization,” this final rule maintains the original term of “special use permit” and clarifies that the other type of permit authorizing use is a “self-registration floating permit.”

Lastly, to better serve the public, this final rule amends 36 CFR 261.77 by eliminating references to specific locations where self-registration permits are made available to the public. Instead, the Forest Service will use other means to inform the public of the variety of places where it can go to obtain permits to float the Chattooga Wild and Scenic River.

On January 19, 2016, the Forest Service published a proposed rule in the Federal Register (Vol. 81, No. 11, pages 2788-2791) seeking public comment in amending regulations at 36 CFR 261.77 related to prohibitions in Region 8, Southern Region. The proposed rule was posted electronically on the Federal Register website at https://www.federalregister.gov and on the local agency's website at https://www.fs.usda.gov/scnfs. The proposed rule would prohibit floating activities on the Chattooga Wild and Scenic River (WSR) unless authorized by permit.

During the 60-day comment period, which ended on March 21, 2016, the Forest Service received 13 letters or electronic messages in response to the proposed rule, resulting in a total of 594 comments. Of the 13 letter/email responses, 9 came from individuals, 1 from a State Government agency, 1 from an environmental organization, 1 from a whitewater organization, and 1 from a homeowners association. Copies of the letters/emails received can be seen on the website for the Francis Marion and Sumter National Forests website at https://www.fs.usda.gov/scnfs. A complete report of all the comments received and their responses are available by contacting the Forest Service (see ADDRESSES and FOR FURTHER INFORMATION CONTACT ).

Comment. Some of the comments from respondents focused on whether the Forest Service should allow boating in the upper segment of the Chattooga Wild and Scenic River (Chattooga WSR). Some respondents stated that they are against boating under any circumstances in the Chattooga WSR, specifically in the Grimshawes area to Bull Pen Bridge.

Response. Forest Plan Amendments signed in 2012 for the Nantahala, Chattahoochee-Oconee and Sumter National Forests permit boating under certain conditions in the upper segment of the Chattooga WSR from the confluence of Green Creek and the Chattooga WSR in North Carolina to a spot where boaters are required to take their boats out of the water near the confluence of Lick Log Creek and the Chattooga WSR in South Carolina. Boating is permitted from December 1st to April 30th during daylight hours (starting 30 minutes before sunrise and 30 minutes after sunset) when flows are 350 cubic feet per second or greater at the USGS water gage at Burrells Ford. The final rule is consistent with this management direction.

Comment. One respondent was concerned with safety and the remote access for search and rescue teams to do their jobs.

Response. The Forest Service analyzed this concern in the 2012 environmental assessment, “Managing Recreation Uses in the Upper Segment of the Chattooga Wild and Scenic River Corridor” (2012 EA) associated with the Forest Plan Amendments for the Nantahala, Chattahoochee-Oconee and Sumter National Forests. The 2012 EA disclosed, based on likely use levels and information from other rivers of similar difficulty, accidents, injuries, and fatalities would likely be low and few would require search and rescue responses.

Comment. Some respondents requested that a new section be added to the final rule that references the 2012 EA and Decision Notices to ensure that there is no change to restrictions and to the scope of the decisions with the issuance of the final rule.

Response. Additional rule language is not needed. The final rule is consistent with the Forest Plan Amendments signed in 2012 for the Nantahala, Chattahoochee-Oconee and Sumter National Forests. The purpose of this regulation is not to specify the terms of any permit but rather to establish the framework that boating on the Chattooga River is prohibited except where authorized under permit. It is then up to site-specific decisions, which will be made following the National Environmental Policy Act (NEPA) procedures and involving the public, to determine the actual terms of any permit that allows boating. The Regulatory Certifications, Environmental Impact section, clearly provides reference to the 2012 EA and the signed Decisions Notices that incorporate plan amendments. The forest plan amendments provide sufficient management direction for the three national forests.

Comment. One respondent supported boating in the upper Chattooga without a permit.

Response. Forest Plan Amendments signed in 2012 for the Nantahala, Chattahoochee-Oconee and Sumter National Forests require individual boaters to fill out a self-registration floating permit.

Comment. Some respondents stated that the proposed rule revisions are inconsistent with the 2012 EA and Decision Notices and would invalidate court rulings that upheld Forest Service management of the Chattooga WSR. Further, the respondents contend that the proposed rule circumvents the agency decision-making process and judicial oversight under the Administrative Procedures Act (APA).

Response. The final rule is consistent with the 2012 EA and Decision Notices and amendments to the Nantahala, Chattahoochee-Oconee and Sumter National Forests. The Forest Service has received favorable court rulings in the following court cases relative to the 2012 EA: Civil Action No.: 8:09-2665-MGL, Amended Order and Opinion; 7/30/2013 US Court of Appeals for the Fourth Circuit, No. 13-1960, 11/05/2014; and Civil Action No.: 8:12-CV-3455-BHH, Opinion and Order. The US District Court, District of South Carolina, Greenville Division found “. . . that the Forest Service's 2012 Plan for Management of the Chattooga WSR complies with the federal law analyzed . . .”. In 2016 the Nantahala, Chattahoochee-Oconee and Sumter National Forests signed site-specific decisions for specific boater put-in and take-out locations on the Chattooga WSR. This is consistent with the forest plan amendments signed in 2012. Some of these access sites were constructed in 2016. In addition, biophysical monitoring relative to recreation impacts has been completed and specific monitoring as specified in the 2012 plan amendments began in 2015. There has been and continues to be considerable public interest in Forest Service management activities on the Chattooga WSR. The Forest Service is required to comply with NEPA, the APA and other Federal laws during revisions or amendments to land management plans and during planning of site-specific projects.

Comment. Some respondents believe that the Forest Service should have considered all the actions and decisions as connected actions that should have been considered in a single review process.

Response. All management actions and decisions have been informed by the Environmental Assessment (EA), “Managing Recreation Uses in the Upper Segment of the Chattooga Wild and Scenic River Corridor.” The Regulatory Certifications, Environmental Impact section, in the final rule clearly provides reference to the 2012 EA and Decisions Notices that incorporate plan amendments into the Nantahala, Chattahoochee-Oconee and Sumter forest plans. The final rule is consistent with current management on the three national forests.

Comment. Some respondents contend that the proposed rule changes would allow floating through private property unless explicitly restricted; and that the proposed rule asserts the 2012 Decisions allow floating unless explicitly restricted.

Response. The final rule prohibits boating on the Chattooga WSR on National Forest System land abutting the river unless authorized by permit. All trails and access points to the Chattooga WSR are located on the Nantahala, Chattahoochee-Oconee and Sumter National Forests. All permitted boating activity occurs down-river from private land. Floating activities authorized by permit will take place entirely through National Forest System land abutting the Chattooga River. Existing trailhead locations enable recreationist to get to the Chattooga WSR using Forest Service trails and access points. Any changes to the existing terms of the permit would need to be approved through a separate NEPA analysis that would involve the public.

Comment. The proposed rule contradicts the Courts understanding of the 2012 Plan by allowing floating use of the Chattooga River unless explicitly restricted.

Response. The final rule is intended to update prohibitions in Region 8, Southern Region, to now be consistent with the Decision Notices (one for each National Forest) signed on January 31, 2012, which were based upon an Environmental Assessment (EA) titled “Managing Recreation uses in the Upper Segment of the Chattooga Wild and Scenic River Corridor.” The final rule prohibits boating on the Chattooga WSR on National Forest System land abutting the river unless authorized by permit. The final rule does not “allow floating use of the Chattooga River unless explicitly restricted” as the commenter alleges—rather it says the opposite. The final rule establishes that boating on the Chattooga River is prohibited unless explicitly allowed under the terms of a permit.

Comment. The proposed CFR revision expands Forest Service discretion to issue special use authorizations without limitations.

Response. The self-registration floating permit for private boating has been in use for many decades on the lower segment of the Chattooga WSR. An amended version of this permit that includes the conditions for boating in the upper segment (above GA/SC Highway 28) has been in use since 2012.

Based on public comments received during the comment period on the proposed rule, the final rule will replace the word “permit” with the term “self-registration floating permit” when referring to private boaters wishing to boat on the Chattooga River. The conditions for boating are listed on the back of the self-registration floating permit and are consistent with forest plan direction for the Nantahala, Chattahoochee-Oconee and Sumter National Forests.

While the proposed rule included the term “special use authorization,” which from 36 CFR 251.50, is the more appropriate term to use, the term “special use authorization” is also a broader term that includes other types of “authorizations.” This has led to some confusion and consequently, the final rule will replace the term “special use authorization” with the original term “special use permit” when referring to commercial boating that is authorized on the lower segment of the Chattooga WSR. Commercial boating on the upper segment of the Chattooga WSR (above GA/SC Highway 28) is currently prohibited under the terms of the previous decisions. Any changes to the terms of these permits can only be made following the NEPA procedures and involving the public.

Comment. Some respondents stated that the proposed rule is inconsistent with the 2012 Decision Notices and the existing 36 CFR 261.77 language by specifying that the prohibitions are applicable to “National Forest System land” instead of “any area of the . . . National Forest abutting the Chattooga River”.

Response. The term “National Forest” can be interpreted to include private lands within a proclaimed National Forest. However, the intent of this rule is not to regulate activities on privately-owned lands. Therefore, it was determined that the applicable term to use in these regulations is “National Forest System land”.

Comment. Some respondents contend that the original CFR (261.77(d)) included a copy of a Chattooga-specific floater permit that listed the conditions of the permit. The proposed rule revision provides no permit conditions whatsoever. This leaves the proposed rule “undefined” and “limitless.” Without listing the conditions of the floater permit, it is impossible to know if the CFR revisions are consistent with the 2012 Decisions and forest plan amendments.

Response. The Forest Service intends to issue a revised self-registration floating permit that is consistent with current management of the river as stated in the 2012 Decisions and plan amendments for the Nantahala, Chattahoochee-Oconee, and Sumter National Forests. The permit will list the conditions for private boating on the upper segment of the Chattooga River WSR on the back of the self-registration floating permit. The purpose of this regulation is not to specify the terms of any permit but rather to establish the framework that boating on the Chattooga River is prohibited except where authorized under permit. It is then up to site-specific decisions, which will be made following the NEPA procedures and involving the public, to determine the actual terms of any permit that allows boating.

Comment. Some respondents maintain that the locations for obtaining a permit should be listed like they were in the original CFR (261.77(d)) as they have served a purpose of providing egress points to discrete locations on the River. The rule should include the new locations of where boaters can obtain a permit as this would direct boaters to the approved locations to initiate their trip.

Response. The Department expanded the number of kiosk locations for obtaining information and self-registration floating permits after the 2012 Decisions were signed. The new kiosk locations are adjacent to trailheads close to the locations where boating is permitted for public convenience. It is not necessary to define those in the final rule and information on where and how to get permits along with boating requirements can be shared in a number of venues (Forest Service websites for example).

Comment. The text of the proposed rule does not explicitly detail any of the twelve boating restrictions enumerated in the 2012 Decision Notices.

Response. The final rule only addresses floating prohibitions on the Chattooga WSR. The self-registration floating permit lists the conditions for boating which are consistent with the 2012 Decision Notices and forest plan amendments for the Nantahala, Chattahoochee-Oconee, and Sumter National Forests. This allows flexibility in future management as forest plans are revised or amended and new site-specific decisions are made following NEPA procedures. The purpose of this regulation is not to specify the terms of any permit but rather to establish the framework that boating on the Chattooga River is prohibited except where authorized under permit. It is then up to site-specific decisions, which will be made following the NEPA procedures and involving the public, to determine the actual terms of any permit that allows boating.

Comment. One respondent asked that the final rule clarify that closure orders may still be used to restrict or even prohibit boating to prevent degradation of the Chattooga's Outstandingly Remarkable Values (ORVs).

Response. The final rule does not limit Forest Service authority to issue closure orders as needed.

Comment. One respondent contends that by not stipulating where permits may be obtained, that eventually permit kiosks will be removed entirely. Without permit boxes being present at trailheads, an impression will invariably develop that no permits are required.

Response. The wording in the final rule is clear, that boating on the Chattooga WSR is prohibited without a permit and the permit specifies the conditions for floating the river. Self-registration stations are not being eliminated but have increased with stations being located at key trailheads that provide access to the upper segment of the River where boating takes place. The Forest Service has maintained self-registration stations on the lower segment of the Chattooga WSR since designation and has even added three additional stations on the lower segment over the years. Along with the permit itself, the self-registration stations provide information on rules and regulations.

Comment. One respondent contends that the proposed rule can only be applied to that portion of the Chattooga WSR within the geographic scope of the Environmental Assessment (EA), “Managing Recreation Uses in the Upper Segment of the Chattooga Wild and Scenic River Corridor” to which it tiers.

Response. The 1976 and 1985 forest management plans prohibited boating above GA/SC Highway 28. The 2012 forest plan amendments for the Nantahala, Chattahoochee-Oconee, and Sumter National Forests permitted boating under certain conditions on National Forest System land abutting the Chattooga River. These amendments did not change the status quo on any prohibition that already exists on National Forest System land above the confluence of the Chattooga River and Green Creek all the way to the upper limit of the Chattooga WSR Corridor. The 2012 Decisions simply made conditional exceptions to the long-standing prohibition on floating above GA/SC Highway 28 on National Forest System land abutting the Chattooga WSR. This was reiterated in the July 30, 2013, Amended Order and Opinion from Judge Mary G. Lewis in Civil Action No.: 8:09_2665-MGL, page 4.

Comment. Some respondents maintain that a taking analysis was not completed for the proposed rule as required by Executive Order 12630. In addition, the respondents want language added to the final rule that floating is prohibited above the confluence of Green Creek, a section of the River that contains private property.

Response. The final rule does not pose a risk of taking private property. The potential impacts to private lands were evaluated in the Environmental Assessment (EA), “Managing Recreation Uses in the Upper Segment of the Chattooga Wild and Scenic River Corridor.” The portions of the River that are permitted for boating are located on National Forest System land and do not include private property or public use of private land. Any changes to what might be allowed under permit can only be made following the NEPA procedures and involving the public.

Comment. Some respondents stated that some segments of the Chattooga River are owned by the State and are therefore beyond the scope of Forest Service statutory authority.

Response. The final rule recognizes that the Secretary of Agriculture has the authority to regulate the public use of waters within the boundaries of a Wild and Scenic River. (See 16 U.S.C. 551, 36 CFR 261.1(a)(4), 36 CFR 261.58(z), and Forest Service Manual 2354.01.) The Forest Service's authority to manage recreational uses, including the regulation of floating, in the Chattooga Wild and Scenic River corridor was also challenged in American Whitewater, et al. v. Tidwell, et al. The U.S. District Court for the District of South Carolina upheld the decision of the Forest Service. The decision of the court was subsequently affirmed by the 4th Circuit Court of Appeals.

The final rule amends an existing regulation to make it consistent with a USDA, Forest Service decision on the management of the Chattooga Wild and Scenic River, which lies within the Chattahoochee, Nantahala and Sumter National Forests. The Decision Notices (one for each National Forest) were signed on January 31, 2012, which were based upon an Environmental Assessment (EA) titled “Managing Recreation Uses in the Upper Segment of the Chattooga Wild and Scenic River Corridor.” The social and environmental effects of this decision are documented in this EA. The final rule amendment is to update the Forest Service regulations to be consistent with this new management decision.

This final rule has been reviewed under USDA procedures and Executive Order 12866 on regulatory planning and review. It has been determined that this is not a significant rule. This rule will not have an annual effect of $100 million or more on the economy, nor will it adversely affect productivity, competition, jobs, the environment, public health and safety, or State or local governments. This rule will not interfere with an action taken or planned by another agency, nor will it raise new legal or policy issues. Finally, this rule will not alter the budgetary impact of entitlement, grant, user fee, or loan programs or the rights and obligations of beneficiaries of such programs. Accordingly, this rule is not subject to Office of Management and Budget (OMB) review under Executive Order 12866.

This final rule has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 602 et seq. ). The rule makes minor, technical changes to the Forest Service's regulations. This rule will not have a significant economic impact on a substantial number of small entities as defined by the act because the rule will not impose recordkeeping requirements on them; it will not affect their competitive position in relation to large entities; and it will not affect their cash flow, liquidity, or ability to remain in the market.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 12630. It has been determined that the rule will not pose the risk of a taking of private property.

This final rule has been reviewed under Executive Order 12988 on civil justice reform. After adoption of this rule, (1) all State and local laws and regulations that conflict with this rule or that impede its full implementation will be preempted; (2) no retroactive effect will be given to this rule; and (3) it will not require administrative proceedings before parties may file suit in court challenging its provisions.

The Department has considered this final rule under the requirements of Executive Order 13132 on federalism, and has determined that the rule conforms with the federalism principles set out in this Executive order; will not impose any compliance costs on the States; and will not have substantial direct effects on the States, the relationship between the Federal Government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the Department has determined that no further assessment of federalism implications is necessary.

Moreover, this final rule does not have Tribal implications as defined by Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The Department recognized that one or more Indian Tribes may have direct interest in the management of Chattooga Wild & Scenic River. These Indian Tribes were consulted during the public comment period and no concerns with the proposed rule were expressed.

This final rule has been reviewed under Executive Order 13211 of May 18, 2001, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. It has been determined that this rule does not constitute a significant energy action as defined in the Executive order.

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), which the President signed into law on March 22, 1995, the Department has assessed the effects of this final rule on State, local, and Tribal Governments and the private sector. This rule will not compel the expenditure of $100 million or more by any State, local, or Tribal Government or anyone in the private sector. Therefore, a statement under section 202 of the act is not required.

This final rule does not contain any recordkeeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) and its implementing regulations at 5 CFR part 1320 do not apply.

Therefore, for the reasons set out in the preamble, part 261 of title 36 of the Code of Federal Regulations is amended as follows:

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

The background and rationale for this action are discussed in detail in our August 14, 2023 proposed rule and our Response to Comments document for this action. 1 In the proposed rule, we proposed to approve the enhanced monitoring element and to disapprove the contingency measures element of the March 22, 2021 8-hour ozone attainment plan SIP submission from the State of Colorado for the DMNFR Area. Additionally, we proposed to disapprove certain provisions submitted by the State to meet reasonably available control technology (RACT) requirements in SIP submissions from March 22, 2021 and May 20, 2022. Specifically, we proposed disapproval of the categorical RACT rules for refinery fueled process heaters as well as landfill or biogas fired reciprocating internal combustion engines and the State's RACT determination for the Golden Aluminum facility. This action does not take final action on the RACT portion of the proposal. EPA will take final action on the RACT portion of the August 14, 2023 proposal via a separate action.

We received comments on the August 14, 2023 proposal from several commenters: the Center for Biological Diversity, the Air Pollution Control Division of the Colorado Department of Public Health and Environment, William Weese Pepple & Ferguson on behalf of Suncor Energy Inc., and one citizen. All comments received are in the docket for this action. The comments included views concerning the timing, process, and approach for EPA to act on Colorado's SIP submittals; supportive and adverse comments related to our proposed action on the contingency measures element; and adverse comments related to our proposed action on certain RACT elements. A summary of the comments that are relevant to this final action and the EPA's responses are provided in the Response to Comments document, which is in the docket for this action. Comments related to RACT will be addressed in a separate action.

The EPA is approving the enhanced monitoring portion of Colorado's ozone attainment plan submitted on March 22, 2021 because we find that it satisfies the requirements under CAA section 182(c)(1) for the DMNFR Area with respect to the 2008 ozone NAAQS. We are disapproving the contingency measures portion of Colorado's ozone attainment plan submitted on March 22, 2021 because we find that it does not satisfy the requirements under CAA sections 172(c)(9) or 182(c)(9) for the DMNFR Area with respect to the 2008 ozone NAAQS. We will be finalizing action on the RACT requirements in SIP submissions from March 22, 2021 and May 20, 2022 in a separate action. EPA has previously acted on all other parts of these submittals. 2

Section 110(c)(1) of the CAA requires the Administrator to promulgate a Federal implementation plan (FIP) at any time within two years after the Administrator finds that a state has failed to make a required SIP submission, finds a SIP submission to be incomplete, or disapproves a SIP submission, unless the state corrects the deficiency, and the Administrator approves the SIP revision, before the Administrator promulgates a FIP. Therefore, EPA will be obligated under CAA section 110(c)(1) to promulgate a FIP within two years after the effective date of this disapproval, unless the state submits, and the EPA approves, SIP revisions to correct the identified deficiencies before EPA promulgates the FIP.

In addition, this final disapproval will trigger mandatory sanctions in accordance with the timelines and provisions of CAA section 179 and 40 CFR 52.31 unless the state submits, and EPA approves, SIP revisions that correct the identified deficiencies within 18 months of the effective date of the final disapproval action.

The EPA reviewed demographic data, which provides an assessment of individual demographic groups of populations living within the DMNFR Area. The EPA then compared the data to the national averages for each of the demographic groups. The results of this analysis are being provided for informational and transparency purposes. The results of the demographic analysis indicate that for populations within the DMNFR Area, there are census block groups with the percent of people of color (persons who reported their race as a category other than White alone and/or Hispanic or Latino) is greater than the national average (39%) and above the 80th percentile. 3 There are also census block groups within the DMNFR Area that are below the national average (33%) poverty level and above the 80th percentile. 4

This final SIP action identifies deficiencies in the contingency measure element of the March 22, 2021 SIP submittal for the DMNFR Area under the 2008 8-hour ozone NAAQS. The EPA's disapproval of these contingency measures, if finalized, would require that Colorado submit plans for the DMNFR Area containing contingency measures consistent with the requirements of the CAA as explained in Sierra Club v. EPA, 985 F.3d 1055 (D.C. Cir. 2021). Such measures would help to improve air quality in the entire affected nonattainment area through ongoing reductions of ozone precursor emissions should the measures be triggered.

The CAA requires this action, and the EPA recognizes the adverse impacts of ozone. Information on ozone and its relationship to negative health impacts can be found in the National Ambient Air Quality Standards for Ozone. 5 We expect that this action and resulting emission reductions will generally be neutral or contribute to reduced environmental and health impacts on all populations in the DMNFR Area, including people of color and low income populations. At a minimum, this action would not worsen any existing air quality and is expected to ensure the area is meeting requirements to attain and/or maintain air quality standards. Further, there is no information in the record indicating that this action is expected to have disproportionately high or adverse human health or environmental effects on a particular group of people.

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

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

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

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

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

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

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

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

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

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

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The Colorado Air Quality Control Division did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA performed an environmental justice analysis, as is described above in the section titled, “Environmental Justice Considerations.” The analysis was done for the purpose of providing additional context and information about this rulemaking to the public, not as a basis of the action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. In addition, there is no information in the record upon which this decision is based inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 8, 2024. Filing a petition for reconsideration by the Administrator of this final rule will not affect the finality of this action for the purposes of judicial review, nor will it extend the time within which a petition for judicial review may be filed or postpone the effectiveness of this rule. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

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

Executive Summary

Why we need to publish a rule. Under the Act, a species warrants delisting if it no longer meets the definition of an endangered (in danger of extinction throughout all or a significant portion of its range) or threatened species (likely to become endangered within the foreseeable future throughout all or a significant portion of its range). Island bedstraw is listed as endangered, and Santa Cruz Island dudleya is listed as threatened, and we are delisting both species. We have determined that island bedstraw and Santa Cruz Island dudleya do not meet the Act's definition of an endangered or threatened species. Delisting a species can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq. ).

What this document does. This rule removes island bedstraw and Santa Cruz Island dudleya from the Federal List of Endangered and Threatened Plants in title 50 of the Code of Federal Regulations (at 50 CFR 17.12(h)) based on their recovery. The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, will no longer apply to island bedstraw or Santa Cruz Island dudleya.

The basis for our action. Under the Act, we may determine that a species is an endangered species or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. The determination to delist a species must be based on an analysis of the same factors.

Under the Act, we must review the status of all listed species at least once every 5 years. We must delist a species if we determine, on the basis of the best available scientific and commercial data, that the species is neither a threatened species nor an endangered species. Our regulations at 50 CFR 424.11 identify three reasons why we might determine a listed species shall be delisted: (1) The species is extinct; (2) the species does not meet the definition of an endangered species or a threatened species, or (3) the listed entity does not meet the definition of a species. Here, we have determined that the island bedstraw and Santa Cruz Island dudleya do not meet the definition of an endangered species or a threatened species; therefore, we are delisting them.

Please refer to the proposed delisting rule (87 FR 73722) for island bedstraw and Santa Cruz Island dudleya published on December 1, 2022, for a detailed description of previous Federal actions concerning these species.

A species status assessment (SSA) team prepared SSA reports for both island bedstraw (Service 2021a, entire) and Santa Cruz Island dudleya (Service 2021b, entire). The SSA team was composed of Service biologists, in consultation with other species experts. These SSA reports represent a compilation of the best scientific and commercial data available concerning the status of these species, including the impacts of past, present, and future factors (both negative and beneficial) affecting both of the species.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review in listing and recovery actions under the Act, we solicited independent scientific reviews of the information contained in the SSA reports for island bedstraw and Santa Cruz Island dudleya. As discussed in the proposed rule, we sent the island bedstraw SSA report to three independent peer reviewers and received three responses. We sent the Santa Cruz Island dudleya SSA report to three independent peer reviewers and received one response. The island bedstraw SSA report was also submitted to our Federal, State, Tribal, and other partners for scientific review. We received one partner review from the U.S. Geological Survey (USGS); Channel Islands Field Station in Ventura, California. The dudleya SSA report was also submitted to our Federal, State, Tribal and other partners for scientific review. We received two partner reviews from The Nature Conservancy (TNC) and USGS (Channel Islands Field Station in Ventura, California). The peer reviews can be found at https://www.regulations.gov under Docket No. FWS-R8-ES-2022-0066 and https://ecos.fws.gov. In preparing this final rule, we incorporated the results of these reviews, as appropriate, into the final SSA reports for both species, which are the foundation for the proposed rule and this final rule. A summary of the peer review comments and our responses can be found in the Summary of Comments and Recommendations below.

In preparing this final rule, we reviewed and fully considered the comments received on the proposed rule. We did not receive substantive additional information regarding the proposed actions, and, therefore, we did not make any changes from the proposed rule in this final rule.

In the proposed rule published on December 1, 2022, we requested that all interested parties submit written comments on the proposal by January 30, 2023. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. We did not receive any requests for a public hearing, or substantive information during the comment period. We received two public comments that were not substantive.

As discussed in Peer Review above, we received comments from three peer reviewers on the draft SSA reports. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the contents of the SSA reports. Peer reviewer comments are addressed in the following summary. As discussed above, because we conducted this peer review prior to publication of our proposed rule, we had already incorporated all applicable peer review comments into the final version of the SSA report, which was the foundation for the proposed rule and this final rule.

The peer reviewers generally concurred with our methods and conclusions and provided additional scientific and editorial suggestions. These suggestions included discussions of climate change effects, competition, genetic variation, possible clonal spread and effects of erosion for island bedstraw, and possible competitive and fire effects for Santa Cruz Island dudleya. The peer reviewer comments were addressed as necessary within the final versions of the SSA reports.

The following discussion contains information that was presented in the proposed rule to delist island bedstraw and Santa Cruz Island dudleya (87 FR 73722, December 1, 2022). A thorough discussion of both species' description, habitat, and life history is also found in that proposed rule.

Island bedstraw occurs on Santa Cruz and San Miguel Islands of the Channel Islands in Santa Barbara County, California (figure 1). It is a long-lived, flowering woody shrub that can be more than 1 m (3 ft) tall and may sprawl laterally wider than it is tall. The basal stem diameter can exceed 13 millimeters (mm) (0.5 inch (in)) (McEachern et al. 2019a, p. 20). Stems can be glabrous, scabrous, or sparsely hairy. Its leaves are large for the genus and tend to turn red and be lost under summer drought stress conditions. Flowers are small (3-4 mm or 0.10-0.15 in diameter) and are greenish white, often with darker petal tips or centers. The fruit is a schizocarp (a dry fruit that splits into parts when ripe) comprising two single-seeded mericarps, typically referred to as nutlets. While it is not known how long adult plants can live, they can likely live more than 20 years, if not longer (McEachern 2020, pers. comm.).

Historically, island bedstraw has been characterized as restricted to coastal bluffs, steep rocky slopes, and sea cliffs in the coastal-bluff scrub vegetation (Junak et al. 1995, p. 254; Dempster 1993, p. 982; Soza 2012, p. 1211). However, the plant has also been found in other places, like in pine forest and at interior locations. For Santa Cruz Island, the number of known island bedstraw sites has increased with each successive survey effort, from 13 to 27 to 36 over the course of 20 years and 3 survey efforts. The number of sites on San Miguel Island has remained at six. Each site represents a separate population of island bedstraw for the purposes of this analysis. Where data are available, the estimated number of plants within sites has increased over time, sometimes dramatically. Plant totals have gone from about 100 to about 10,000 for Santa Cruz Island, and the most recent total does not include most of the terraces or cliffs on the coastal sites. The total number of known plants on San Miguel Island has increased from about 500 to about 5,000, again not including most cliff-face plants. Most of the 42 total sites are either extant or presumed to be extant. Island bedstraw seems to be expanding on terraces and other non-cliff habitats; this expansion is demonstrated at several sites. Further information on the basic biology and ecology of island bedstraw is summarized in the SSA report (Service 2021a, entire).

The South Atlantic snapper-grouper fishery, which includes golden tilefish and blueline tilefish, is managed under the FMP. The FMP was developed by the Council and implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

The Magnuson-Stevens Act requires that NMFS and the regional fishery management councils prevent overfishing and achieve, on a continuing basis, the OY from federally managed fish stocks. These mandates are intended to ensure that fishery resources are managed for the greatest overall benefit to the Nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems. To further this goal, the Magnuson-Stevens Act requires fishery managers to minimize bycatch and bycatch mortality to the extent practicable.

On August 3, 2023, NMFS published a notice of availability for Amendment 52 and requested public comment (88 FR 51255). On August 24, 2023, NMFS published a proposed rule for Amendment 52 and requested public comment (88 FR 57916). NMFS approved Amendment 52 on October 30, 2023. The proposed rule and Amendment 52 outline the rationale for the actions contained in this final rule. A summary of the management measures described in Amendment 52 and implemented by this final rule is provided below.

All weights described in this final rule are in gutted weight unless otherwise specified.

The South Atlantic stock of golden tilefish was first assessed through the Southeast Data, Assessment, and Review (SEDAR) process in 2004 (SEDAR 4). In response to the assessment, the Council submitted management measures in Amendment 13C to the FMP. The final rule to implement Amendment 13C specified a commercial quota for golden tilefish of 295,000 lb. (133,810 kg); a commercial trip limit for golden tilefish of 4,000 lb (1,814 kg), and, if 75 percent of the quota is landed on or before September 1, then a reduction of the trip limit to 300 lb (136 kg); and a recreational bag limit of one golden tilefish per person per day included within the five-grouper aggregate bag limit (71 FR 55096, September 21, 2006). The Council submitted sector allocations for golden tilefish in Amendment 17B to the FMP, allocating 97 percent of the ACL to the commercial sector and 3 percent of the ACL to the recreational sector. In addition, for golden tilefish, the final rule for Amendment 17B specified: a total ACL of 291,566 lb (132,252 kg), a commercial ACL of 282,819 lb (128,285 kg), and a recreational ACL of 1,578 fish; commercial and recreational AMs; and a longline endorsement for the commercial component of golden tilefish (75 FR 82280, December 30, 2010).

In 2011, a new stock assessment was completed for golden tilefish (SEDAR 25 2011) and the Council submitted Regulatory Amendment 12 to the FMP in response to the assessment. In the final rule for Regulatory Amendment 12, the total ACL was set at 558,036 lb. (253,121 kg), the existing allocations were applied to revise the sector ACLs to 541,295 lb (245,527 kg) for the commercial sector and 3,019 fish for the recreational sector, and the recreational annual catch target and sector AMs were revised (77 FR 61295, October 9, 2012). In Amendment 18B to the FMP, the golden tilefish commercial ACL was divided between two commercial fishing gear components, assigning 75 percent of the ACL to the longline component with a 4,000 lb (1,814 kg) trip limit and 25 percent of the ACL to the hook-and-line component with a 500 lb (227 kg) trip limit (78 FR 23858, April 23, 2013).

In 2016, an update to the SEDAR 25 stock assessment indicated that golden tilefish were undergoing overfishing (SEDAR 25 Update 2016). Following two interim rules that took action to reduce overfishing (83 FR 65, January 2, 2018; 83 FR 28387, June 19, 2018), the final rule for Regulatory Amendment 28 to the FMP implemented long-term measures that reduced the golden tilefish ACLs. The existing allocations were applied to revise the sector ACLs to 331,740 lb (150,475 kg) for the commercial sector (further divided with 75 percent to the longline component and 25 percent to the hook-and-line component) and 2,316 fish for the recreational sector (83 FR 62508, December 4, 2018).

The Council submitted Amendment 52 in response to a new stock assessment for golden tilefish. The new assessment, SEDAR 66, was completed in 2020 and it indicated that the stock was not undergoing overfishing and was not overfished. SEDAR 66 includes recreational landings estimates using the Marine Recreational Information Program (MRIP) Fishing Effort Survey (FES) as discussed below. The revised catch levels recommended by the Council in Amendment 52 and in this final rule are based on their Scientific and Statistical Committee's (SSC) recommended ABC and the results of SEDAR 66. The Council received the results of the assessment and the SSC's recommendations for the OFL and ABC at the June 2021 Council meeting.

In response to golden tilefish commercial longline vessel fishermen's concerns about avoiding oversupplying the market in the first part of January and allowing such vessels to remain fishing for golden tilefish during the Lenten season when prices tend to be relatively high, this final rule changes the starting date of the fishing season for the commercial longline component from January 1st to January 15th.

For blueline tilefish managed under the FMP, recreational landings exceeded the recreational ACL every year from 2015-2020. Revising certain management measures for blueline tilefish is expected to help keep the recreational sector within its ACL. The most recent stock assessments for blueline tilefish were completed in 2017 and did not indicate that the stock was undergoing overfishing or was being overfished.

The Council and NMFS intend that the actions in Amendment 52 and this final will achieve OY while minimizing, to the extent practicable, adverse social and economic effects.

For golden tilefish, this final rule revises the sector ACLs, commercial component quotas, commercial longline component fishing season, and recreational AMs. For blueline tilefish, this final rule revises the recreational bag and possession limits and recreational AMs.

As implemented through Regulatory Amendment 28 to the FMP, the current total ACL and annual OY for golden tilefish are equal to the current ABC of 342,000 lb. (155,129 kg.) (83 FR 62508, December 4, 2018). In Amendment 52, the ABC is revised based on SEDAR 66 and the recommendation of the SSC, and the ABC, ACL, and annual OY is set equal to each of these values.

Amendment 52 revises the total ACL and annual OY equal to the recommended ABC of 435,000 lb (197,313 kg) for 2023; 448,000 lb (203,209 kg) for 2024; 458,000 lb (207,745 kg) for 2025; 466,000 lb (211,374 kg) for 2026 and subsequent fishing years.

Amendment 52 revises the sector allocations and this final rule revises the sector ACLs for golden tilefish. The current sector ACLs for golden tilefish are based on the commercial and recreational allocations of the total ACL at 97 percent and 3 percent, respectively. The current allocations are based on the allocation formula [ACL = ((mean landings 2006-2008) * 0.5)) + ((mean landings 1986-2008) * 0.5))] adopted by the Council in the Comprehensive ACL Amendment to the FMP, which considered past and present participation (77 FR 15915, March 16, 2012). The Council established those allocations based on balancing long-term catch history with more recent catch history and believed that approach to be a fair and equitable method to allocate fishery resources.

The revised golden tilefish sector allocations in Amendment 52 result in commercial and recreational allocations of 96.70 percent and 3.30 percent, respectively. The revised sector allocations were determined by applying the allocation formula (described above) to the recreational MRIP FES estimates used in SEDAR 66. Utilizing these revised recreational estimates results in a slight shift of allocation to the recreational sector, with the percentages of annual catch increasing from the current 3 percent to the revised 3.30 percent. The limited recreational effort for, and harvest of, golden tilefish, were considered in determining that allocating 3.30 percent of the revised total ACL for golden tilefish to the recreational sector is a fair and equitable allocation that is reasonably calculated to promote conservation and does not give any entity an excessive share of harvest privileges based on the historical and current harvest of golden tilefish. In addition, this allocation division will encourage a rational and well-managed use of the golden tilefish resource, which optimizes social and economic benefits.

This final rule revises the commercial ACLs (commercial sector hook-and-line and longline components combined) to 420,645 lb (190,801 kg) for 2023; 433,216 lb (196,503 kg) for 2024; 442,886 lb (200,890 kg) for 2025; and 450,622 lb (204,399 kg) for the 2026 and subsequent fishing years.

This final rule revises the recreational ACLs (in numbers of fish) to 2,559 for the 2023 fishing year; 2,635 for the 2024 fishing year; 2,694 for the 2025 fishing year; 2,741 for the 2026 and subsequent fishing years.

As discussed above, the commercial ACL is allocated between two gear components: 25 percent is allocated to the hook-and-line component and 75 percent to the longline component (77 FR 23858, April 23, 2013). The allocation percentages between the hook-and-line and longline components were not modified in Amendment 52. However, this final rule revises the hook-and-line and longline component ACLs (quotas) based on the revised commercial ACL. The commercial hook-and-line ACL is 105,161 lb (47,700 kg) for 2023; 108,304 lb (49,126 kg) for 2024; 110,722 lb (50,223 kg) for 2025; and 112,656 lb (51,100 kg) for 2026 and subsequent fishing years.

The ACLs for the longline component are 315,484 lb (143,101 kg) for 2023; 324,912 lb (147,378 kg) for 2024; 332,165 lb (150,668 kg) for 2025; and 337,967 lb (153,299 kg) for the 2026 and subsequent fishing years.

This final rule changes the start date for the fishing season for the commercial longline component from January 1st to January 15th. A closed season will be established for the commercial longline component annually from January 1 through January 14. Starting the commercial season on January 15th for the longline component will help to avoid oversupplying the market in the first part of January and should allow commercial longline vessels to remain fishing for golden tilefish during the Lenten season when prices tend to be relatively high.

In August 2016, Regulatory Amendment 25 to the FMP established the current recreational bag limit of three fish per person per day (81 FR 45245, July 13, 2016). As discussed above, recreational landings for blueline tilefish have exceeded the recreational ACL every year from 2015-2020. This final rule reduces the recreational bag limit for blueline tilefish from three to two fish per person per day to help prevent recreational landings from exceeding the recreational ACL in future fishing years.

Additionally, the captain and crew of a for-hire vessel with a valid Federal South Atlantic Charter/Headboat Snapper-Grouper Permit are currently allowed to retain bag limit quantities of all snapper-grouper species during the open recreational season. In addition to reducing the recreational bag and possession limits to two fish per person per day, this final rule prohibits the retention of blueline tilefish by the captain and crew. A bag limit of two blueline tilefish per person per day and prohibiting retention of the bag limit by captain and crew will result in an overall 12.2 percent reduction in harvest for the recreational sector. The measures to reduce the blueline tilefish bag limit from three to two fish per person per day and prohibit the retention of the bag limit by for-hire captain and crew will, in combination, be expected to keep the recreational landings of blueline tilefish within the recreational ACL.

This final rule also revises the recreational AMs for golden tilefish and blueline tilefish. The current recreational AMs for golden tilefish were established through the final rule for Amendment 34 to the FMP (81 FR 3731, January 22, 2016). The current recreational AMs for blueline tilefish were established through the final rule for Amendment 32 to the FMP (80 FR 16583, March 30, 2015). The current AMs for both species include an in-season closure for the remainder of the fishing year if recreational landings reach or are projected to reach their respective recreational ACL. The current post-season AMs state that if the recreational ACL is exceeded, then during the following fishing year recreational landings will be monitored for a persistence in increased landings. Additionally, during that following fishing year, if the total ACL is exceeded and the species is overfished, the length of the recreational fishing season is reduced and the recreational ACL is reduced by the amount of the recreational ACL overage.

This final rule revises the recreational AMs for both golden tilefish and blueline tilefish to remove the current in-season closure if the recreational ACL is reached or is projected to be reached, and the post-season AM that is tied to the overfished status of the stock. The revised recreational AM will have NMFS projecting the length of the recreational season based on catch rates from the previous fishing year to determine when the recreational ACL would be expected to be met. NMFS will announce the length of the recreational season and its ending date annually in the Federal Register .

The current AMs are being revised because of the delayed availability of recreational landings information to use for in-season actions for species with short fishing seasons or relatively small amounts of fish. For blueline tilefish, the current recreational fishing season is 4 months long, from May through August, and the recreational ACL for golden tilefish is 2,316 fish. In these circumstances, the current in-season AMs will not be effective in keeping landings from exceeding the recreational ACL. As previously discussed, the recreational landings for blueline tilefish exceeded the recreational ACL every year from 2015-2020. The golden tilefish recreational ACL has also frequently been exceeded, with the recreational sector exceeding its ACL every year since 2010, except for 2014 and 2017.

The current post-season recreational AMs that would apply corrective action for ACL overages were not being triggered because they were tied to a determination that the stock was overfished, and neither blueline nor golden tilefish is considered to be overfished. Consequently, any overages of the recreational ACL would be likely to continue to occur.

In addition, the Magnuson-Stevens Act Guidelines under National Standard 1 advise Councils to reevaluate the system of ACLs and AMs when overages of a stock's ACL occur more than once in 4 consecutive years. The purpose of the revised AMs is to prevent recreational landings from exceeding the respective recreational ACLs for both golden tilefish and blueline tilefish. The revised recreational AMs will be more effective at restraining landings to the recreational ACL. For blueline tilefish, Amendment 52 will both modify the recreational AM and reduce the recreational retention limit to further ensure recreational landings will not exceed the ACL. Amendment 52 and this final rule do not adjust the commercial AMs for either species.

In addition to the measures within this final rule, Amendment 52 revises the OFL and updates other biological reference points and revises the ABC, OY, and sector allocations for golden tilefish.

The current OFL and ABC are inclusive of MRIP Coastal Household Telephone Survey (CHTS) estimates of private recreational and charter landings. The Council's SSC reviewed the latest stock assessment (SEDAR 66) and recommended new ABC levels as determined by SEDAR 66. The assessment and associated ABC recommendations incorporated the revised estimates for recreational catch and effort from the MRIP Access Point Angler Intercept Survey (APAIS) and the updated FES. MRIP began incorporating a new survey design for APAIS in 2013 and replaced the CHTS with FES in 2018. Prior to the implementation of MRIP in 2008, recreational landings estimates were generated using the Marine Recreational Fisheries Statistics Survey (MRFSS). As explained in Amendment 52, total recreational fishing effort estimates generated from MRIP FES are generally higher than both the MRFSS and MRIP CHTS estimates. This difference in estimates is because MRIP FES is designed to measure fishing activity more accurately and not because there was a sudden increase in fishing effort. The MRIP FES is considered a more reliable estimate of recreational effort by the Council's SSC, the Council, and NMFS, and is a more robust method when compared to the MRIP CHTS method. The new ABC recommendations within Amendment 52 also represent the best scientific information available as determined by the SSC.

The OY for golden tilefish will be specified on an annual basis and will be set equal to the ABC and total ACL in accordance with the guidance provided in the Magnuson-Stevens Act National Standard 1 Guidelines at 50 CFR 600.310(f)(4)(iv).

NMFS received 11 comment submissions from individuals on the amendment and proposed rule for Amendment 52. Three comments were in support of the actions in Amendment 52, and NMFS agrees with those comments. Comments received that were outside the scope of the actions in Amendment 52 and the proposed rule included comments on offshore wind development and are not responded to in this final rule. Comments that opposed the actions in Amendment 52 and the proposed rule are summarized below, along with NMFS' responses. No changes were made to this final rule as a result of public comment.

Comment 1: The revised allocation of golden tilefish between the commercial and recreational sector is extremely unfair. The commercial sector receives 96.7 percent of the total allocation and the recreational sector only receives 3.30 percent. Consideration should have been given to allocate a greater portion of the total ACL to the recreational sector.

Response: NMFS disagrees that the allocations are unfair. In the golden tilefish fishery, the recreational sector accounts for a fairly constant but small portion of the harvest, given that golden tilefish is a deep-water species that is caught further from shore and in greater depths than most of the other species in the snapper grouper complex. The actions related to golden tilefish in Amendment 52 are responding to the most recent stock assessment for golden tilefish (SEDAR 66), which included the change to MRIP estimates from CHTS units to the new FES units. The recreational landings estimates have been revised to adopt the new FES methodology, and the conversion to FES units did not substantially change historical recreational landings for golden tilefish. However, with the change of MRIP from CHTS units to FES units, the allocation distribution between the commercial and recreational sectors needed to be recalculated based on the revised units. The allocation percentages were previously calculated by applying the formula: sector annual catch limit = ((mean landings 2006-2008) * 0.5)) + ((mean landings 1986-2008) * 0.5). When the same allocation formula is applied using the new MRIP-FES data, the recreational allocation increases from 3 to 3.30 percent. The Council also considered the effects of the new catch limits, along with estimates of the commercial and recreational sectors' economic impacts, as measured by full-time equivalent jobs, income, value-added, and sales, as part of the allocation decision in Amendment 52. Considering the limited recreational effort for, and harvest of, golden tilefish, NMFS has determined that allocating 3.30 percent of the revised total ACL for golden tilefish to the recreational sector is a fair and equitable allocation that is reasonably calculated to promote conservation, and that does not give any entity an excessive share of harvest privileges, based on the historical and current harvest of golden tilefish. This allocation division encourages a rational and well-managed use of the golden tilefish resource.

Comment 2: Recreational fishermen spend a significant amount of money on vessels, fuel, and gear to harvest golden tilefish and this should result in a greater allocation of the golden tilefish total ACL to the recreational sector. Also, a lower recreational allocation leads to shorter recreational seasons.

Response: Although recreational fishing expenditures are meaningful to the estimation of economic impacts and the distribution of those impacts regionally and by industry, they are not, on their own, a measure of net economic benefits. NMFS conducted a cost-benefit analysis for Amendment 52 that examined the effects of the new catch limits and allocation and provided an estimate of the change in net economic benefits resulting from the actions in Amendment 52. This information, along with estimates of the commercial and recreational sectors' economic impacts, were considered as part of the allocation decision in Amendment 52. Further, the recreational allocation is actually increased by a small amount in Amendment 52 compared to the status quo. The selected sector allocation in Amendment 52 is expected to generate positive net economic benefits in the recreational sector relative to the current sector allocation.

As previously explained, the final rule increases, rather than decreases, the recreational allocation and ACL. NMFS notes that this final rule removes the current inseason recreational closure based on the recreational ACL being reached or projected to be reached. Instead, the new recreational AM will have NMFS annually announce the length of the recreational fishing season based on catch rates from the previous season. The fishing season will start on January 1 and end on the date NMFS projects the recreational ACL will be met. Within Amendment 52, this recreational AM was determined to provide the most biological benefits to the stock by being the most likely to prevent recreational ACL overages. While the recreational season end date for golden tilefish may shift each year, announcing the length of the season at the beginning of the season would allow private anglers and for-hire businesses to plan their activities around the seasonal closure in advance.

Comment 3: Adequate opportunities need to be provided for fishermen to express their views and concerns on the proposed actions through public hearings, surveys, interviews, focus groups, or other appropriate methods, specifically with regard to sector allocation.

Response: NMFS agrees that opportunity for public comment is important during the development of an FMP amendment and specifically for Amendment 52. At its June 2021 meeting, the Council received the results of SEDAR 66 and the SSC's recommendations for the overfishing limit and ABC. While the Council then developed Amendment 52 during 2021 and 2022, the public had opportunities to comment on the actions in Amendment 52 during the Council scoping process, during public hearings and Snapper Grouper Advisory Panel meetings, as well as during the Council meetings. A summary of the public comments received are included in Chapter 5 of the amendment, and all comments from the public were reviewed by the Council prior to its final action on Amendment 52. In addition, NMFS has also reviewed all public comments received on the notice of availability for Amendment 52 that was published in the Federal Register on August 8, 2023, with the public comment period open through October 2, 2023, and all public comments received on the proposed rule for Amendment 52 that was published in the Federal Register on August 23, 2023, with the public comment period open through September 25, 2023.

Therefore, consistent with the Magnuson-Stevens Act and other applicable law, NMFS has determined that fishermen and other members of the public have had numerous opportunities to review the actions in Amendment 52, including sector allocations, and provide comment.

Comment 4: The rule should incorporate the best available science on climate change and its effects on the snapper-grouper fishery. The Council should develop adaptive management strategies to cope with the uncertainty and variability of the future climate conditions.

Response: NMFS has determined that Amendment 52 contains the best scientific information available, consistent with the Magnuson-Stevens Act. Within Amendment 52, Chapter 6 addresses the cumulative impacts of the actions in the amendment and includes a summary of known or possible climate change impacts in the South Atlantic region. As described in Amendment 52, climate change may impact snapper-grouper species in the future, but the level of impacts cannot be quantified at this time, nor is the time frame known in which these impacts would occur.

Comment 5: Amendment 52 should revise the existing section on the social impact assessment to include more comprehensive and inclusive criteria that capture the diverse values and preferences of the fishermen and fishing communities, including subsistence and traditional fishermen.

Response: Data are not readily available on values and preferences of fishermen and fishing communities. However, NMFS conducted a social impact assessment using the best scientific information available, which is included in Amendment 52. The social impact assessment in Amendment 52 includes the social environment, environmental justice, and social effects sections of the document. These sections within Chapters 3 and 4 of Amendment 52 include a description of the social characteristics of the fishery; community level data on fishing participants, community quotient-fishing landings and value ( i.e., the share of each community's landings and ex-vessel values divided by the landings and values for the region), local quotient ( i.e., the proportion of a community's commercial landings for a given species relative to commercial landings of all species by persons affiliated with that community during a given time period), fishing engagement and reliance, and social vulnerability indicators. In addition, within the discussion for each specific action in Amendment 52, the sections contain an analysis and description of the likely social changes due to the alternatives under consideration along with an evaluation of the potential social effects of the proposed actions in comparison to the status quo. As explained in the Response to Comment 3, snapper-grouper fishermen's and stakeholders' perspectives and input are gathered through the scoping and public comment process and were utilized in the evaluation and determination of social effects contained in Amendment 52. NMFS has determined that social impact assessment in Amendment 52 meets the requirements of the Magnuson-Stevens Act and other applicable law.

Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with Amendment 52, the FMP, other provisions of the Magnuson-Stevens Act, the U.S. Constitution, and other applicable law.

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

The Magnuson-Stevens Act provides the legal basis for this proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified.

A description of this final rule, why it is being considered, and the purpose of this final rule are contained in the SUMMARY and SUPPLEMENTARY INFORMATION sections of this final rule. The objective of this final rule is to base conservation and management measures for golden and blueline tilefish on the best scientific information available and achieve OY, consistent with the Magnuson-Stevens Act and its National Standards.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. NMFS did not receive any comments from SBA's Office of Advocacy or the public regarding the certification in the proposed rule. As a result, a final regulatory flexibility analysis was not required and none was prepared.

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

For the reasons set out in the preamble, NMFS amends 50 CFR part 622 as follows: