The OLPS final rule published on November 2, 2023 (88 FR 75394), delayed December 13, 2023 (88 FR 86259), amends the USDA organic regulations related to the production of livestock, including poultry, marketed as organic. This action corrects five errors in the OLPS regulatory text published on November 2, 2023, to improve the readability and clarity of the rule. The corrections do not change the meaning of the regulations.

Section 553 of the Administrative Procedure Act, 5 U.S.C.553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, an agency may issue a rule without providing notice and an opportunity for public comment. AMS has determined that there is good cause for making these corrections final without prior proposal and opportunity for comment because AMS is merely correcting minor non-substantive errors and omissions in the regulatory text. Accordingly, AMS finds that there is good cause to dispense with notice and public procedure under 5 U.S.C. 553(b)(B). With respect to the effective date, this final rule correction is not substantive in nature, and there is good cause to dispense with a 30-day delayed effective date. This final rule correction will be effective January 12, 2024, in conjunction with the entirety of the rule, as provided by FR Doc. 2023-27255 (88 FR 86259; December 13, 2023).

In FR Doc. 2023-23726 appearing in the Federal Register of November 2, 2023, at 88 FR 75394, the following corrections are made:

I. Table of Abbreviations CFR—Code of Federal Regulations CPI—Consumer Price Index CPI-U—Consumer Price Index for All Urban Consumers DHS—Department of Homeland Security E.O.—Executive Order Form I-129—Petition for a Nonimmigrant Worker Form I-140—Immigrant Petition for Alien Workers Form I-539—Application to Extend/Change Nonimmigrant Status Form I-765—Application for Employment Authorization FY—Fiscal Year INA—Immigration and Nationality Act NEPA—National Environmental Protection Act NIW—National Interest Waiver SBREFA—Small Business Regulatory Enforcement Fairness Act of 1996 USCIS—U.S. Citizenship and Immigration Services USCIS Stabilization Act—Emergency Stopgap USCIS Stabilization Act USCIS Stabilization Rule—Implementation of the Emergency Stopgap USCIS Stabilization Act Final Rule, published March 30, 2022 I. Background and Authority

Section 286(u) of the INA, 8 U.S.C. 1356(u), provides the Secretary with authority to establish and collect a premium fee for the premium processing of certain immigration benefit types. 1 Premium processing means that DHS collects a fee in addition to the regular filing fee from persons seeking expedited processing of eligible immigration benefit requests. 2

On October 1, 2020, the Continuing Appropriations Act, which included the Emergency Stopgap USCIS Stabilization Act (USCIS Stabilization Act), set new fees for premium processing of immigration benefit requests that had been designated for premium processing as of August 1, 2020, and expanded DHS authority to establish and collect new premium processing fees, and to use those additional funds for expanded purposes. See Emergency Stopgap USCIS Stabilization Act, Public Law 116-159, sec. 4102 (Oct. 1, 2020); INA sec. 286(u), 8 U.S.C. 1356(u).

On October 16, 2020, USCIS announced it would increase the fees for premium processing, as required by the USCIS Stabilization Act, effective October 19, 2020. 3 As of that date, the fee for Form I-907, Request for Premium Processing Service, increased from $1,440 to $2,500 for all immigration benefit requests that were designated for premium processing as of August 1, 2020, with the exception that the premium processing fee for petitioners filing Form I-129, Petition for a Nonimmigrant Worker, requesting H-2B or R-1 nonimmigrant status increased from $1,440 to $1,500. USCIS further announced that, while the USCIS Stabilization Act gave USCIS the ability to expand premium processing to additional forms and immigration benefit requests, USCIS was not yet taking such action and that any expansion of premium processing to other forms would be implemented as provided in the legislation. 4

Effective May 31, 2022, DHS amended its premium processing regulations to codify the fees set by the USCIS Stabilization Act and establish new fees and processing timeframes consistent with the conditions and eligibility requirements set forth by section 4102(b)(1) of the USCIS Stabilization Act. See Final rule, Implementation of the Emergency Stopgap USCIS Stabilization Act (USCIS Stabilization Rule), 87 FR 18227 (Mar. 30, 2022); see also 8 CFR 106.4. The fees established by the USCIS Stabilization Act and codified by the USCIS Stabilization Rule were as follows:

○ For all immigration benefit requests that were designated for premium processing as of August 1, 2020, increased from $1,440 to $2,500, with the exception that the premium processing fee for petitioners filing Form I-129, Petition for a Nonimmigrant Worker, requesting H-2B or R-1 nonimmigrant status increased from $1,440 to $1,500. 5

○ For those requesting premium processing for EB-1 immigrant classification as a multinational executive or manager or EB-2 immigrant classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW) on Form I-140, Immigrant Petition for Alien Working, the fee was established as $2,500. 6

○ For those requesting premium processing of a change of status to F-1, F-2, J-1, J-2, M-1, or M-2 nonimmigrant status or a change of status to or extension of stay in E-1, E-2, E-3, H-4, L-2, O-3, P-4, or R-2 nonimmigrant status on Form I-539, Application to Extend/Change Nonimmigrant Status, the fee was established as $1,750;  7 and

○ For those requesting premium processing for employment authorization on Form I-765, Application for Employment Authorization, the fee was established as $1,500. 8

USCIS is now increasing those premium processing fees provided by Congress in the USCIS Stabilization Act and codified through the USCIS Stabilization Rule by the inflationary adjustment calculation provided by INA 286(u)(3)(C), 8 U.S.C. 1356(u)(3)(C). See USCIS Stabilization Act, Public Law 116-159 (Oct. 1, 2020).

Section 286(u)(3)(C) of the INA, 8 U.S.C. 1356(u)(3)(C), provides that DHS may adjust the premium fees on a biennial basis by the percentage by which the Consumer Price Index (CPI) for All Urban Consumers for the month of June preceding the date on which such adjustment takes effect exceeds the CPI for All Urban Consumers (CPI-U) for the same month of the second preceding calendar year. See also 8 CFR 106.4(d) (codifying section 286(u)(3)(C) of the INA, 8 U.S.C. 1356(u)(3)(C) in 8 CFR part 106, USCIS Fee Schedule).

The USCIS Stabilization Act established the current premium processing fees and the authority for DHS to adjust the premium fees on a biennial basis on October 1, 2020. DHS has not adjusted the statutory premium fees since October 1, 2020. As authorized by the USCIS Stabilization Act, DHS is now increasing the statutory premium fees as provided for by the USCIS Stabilization Act by the percentage by which the CPI-U for the month of June preceding the date on which such adjustment takes effect exceeds the CPI-U for the same month of the second preceding calendar year. This rule is effective on February 26, 2024, therefore “the month of June preceding the date on which such adjustment takes effect” is June 2023. As such, June 2021 is “the same month of the second preceding calendar year,” because it is two years before the June “on which such adjustment takes effect.” Therefore, DHS is using the CPI-U as of June 2023 as the end point and June 2021 as the starting point for the period of inflation to establish the new premium processing fees. In June 2021 the CPI-U was 271.696, and in June 2023 it was 305.109. 9 Therefore, between June 2021 and June 2023, the CPI-U increased by 12.30 percent. 10 When this percentage increase is applied to the current premium processing fees, the premium processing fees that were $1,500, increase to $1,685; the premium processing fees that were $1,750, increase to $1,965; and the premium processing fees that were $2,500, increase to $2,805. 11 See new 8 CFR 106.4(c).

A request for premium processing postmarked on or after February 26, 2024 must include the new fee. A premium processing request must be submitted on USCIS Form I-907, Request for Premium Processing, and in the manner prescribed by USCIS in the form instructions. If the request for premium processing is submitted together with the underlying immigration benefit request, all required fees in the correct amount must be paid. The fee to request premium processing service may not be waived and must be paid in addition to, and in a separate remittance from, other filing fees. See 8 CFR 106.4(b).

USCIS is adjusting current premium processing fees to ensure that the premium processing fees keep pace with inflation as contemplated by Congress in the USCIS Stabilization Act. It is USCIS' intention that premium processing fees will be adjusted biennially to consistently protect the real dollar value of the premium processing service that USCIS provides. When making an inflationary adjustment to the premium processing fees provided by INA 286(u)(3)(C), 8 U.S.C. 1356(u)(3)(C), the adjustment is limited to the percentage by which the CPI-U for the month of June preceding the date on which such adjustment takes effect exceeds the CPI-U for the same month of the second preceding calendar year. By consistently adjusting premium processing fees biennially USCIS will fully capture any increase in inflation that could be missed by increasing premium processing fees over periods of time greater than two years.

DHS will use the revenue generated by the premium processing fee increase to provide premium processing services; make improvements to adjudications processes; respond to adjudication demands, including reducing benefit request processing backlogs; and otherwise fund USCIS adjudication and naturalization services.

On January 4, 2023, DHS proposed new fees to replace its current fee schedule in its entirety. See, U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 88 FR 402 (Jan. 4, 2023) (2023 Proposed Fee Rule). 12 The 2023 Proposed Fee Rule proposed to republish 8 CFR 106.4(c) Designated benefit requests and fee amounts as it was codified in the final rule entitled, “Implementation of the Emergency Stopgap USCIS Stabilization Act,” on March 30, 2022 without adjusting any of the fees for premium processing. Id. at 595. As the 2023 Proposed Fee Rule has not yet been finalized, this rule would replace the premium processing fees at 8 CFR 106.4(c) that were set by the USCIS Stabilization Act and codified in the USCIS Stabilization Rule. See new 8 CFR 106.4(c).

The Administrative Procedure Act generally requires agencies to issue a proposed rule before issuing a final rule, subject to certain exceptions. See 5 U.S.C. 553(b). Section 286(u)(3)(C) of the INA, 8 U.S.C. 1356 (u)(3)(C), exempts DHS from the requirements of 5 U.S.C. 553. Section 286(u)(3)(C) of the INA, 8 U.S.C. 1356(u)(3)(C), specifically provides that “the provisions of section 553 of Title 5 shall not apply to an adjustment authorized under [section 286(u)(3)(C) of the INA, 8 U.S.C. 1356(u)(3)(C)].” Therefore, DHS is not required to issue a proposed rule when adjusting premium fees under section 286(u)(3)(C) of the INA, 8 U.S.C. 1356 (u)(3)(C).

The regulations at 8 CFR 106.4(d) provide that fees to request premium processing service may be adjusted by notice in the Federal Register . However, the Federal Register Act (44 U.S.C. 1510) and its implementing regulations (1 CFR part 21) provide that publishing a Notice document in the Federal Register announcing a new fee amount, without amending the regulations, does not effectuate a change of the Code of Federal Regulations (CFR). Because current premium processing fees are codified in the CFR, it is necessary for DHS to publish this rule to amend the regulatory text.

Because this action is not subject to the notice-and-comment requirements under the Administrative Procedure Act, a final regulatory flexibility analysis is not required. See 5 U.S.C. 604(a). This action is not subject to the written statement requirements of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Nor does it require prior consultation with State, local, and tribal government officials as specified by Executive Orders 13132 or 13175.

This rule was drafted and reviewed in accordance with Executive Order (E.O.) 12988, Civil Justice Reform. DHS has determined that this final rule meets the applicable standards provided in section 3 of E.O. 12988.

The Department is not aware of any significant impact on the environment, or any change in environment that would result from the changes in fees. The Department finds that promulgation of this rule clearly fits within categorical exclusion A3, as established in DHS's National Environmental Policy Act (NEPA) implementing procedures set forth in DHS's Directive 023-01, Revision 01, and Instruction Manual 023-01-001-01, Revision 01 (“Instruction Manual”) Appendix A, Table 1.

This rule is a standalone rule and is not part of any larger action. This rule would not result in any major Federal action that would significantly affect the quality of the human environment. Furthermore, the Departments have determined that no extraordinary circumstances exist that would create the potential for significant environmental effects. Therefore, this rule is categorically excluded from further NEPA review.

The Congressional Review Act (CRA) was included as part of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) by section 804 of SBREFA, Public Law 104-121, 110 Stat. 847, 868, et seq. The Office of Information and Regulatory Affairs has determined that this rule is a major rule as defined by the CRA. DHS has complied with the CRA's reporting requirements and has sent this final rule to Congress and to the Comptroller General as required by 5 U.S.C. 801(a)(1).

Executive Orders 12866 (Regulatory Planning and Review), as amended by Executive Order 14094 (Modernizing Regulatory Review), and 13563 (Improving Regulation and Regulatory Review) 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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Office of Management and Budget (OMB) has not designated this rule a “significant regulatory action” as defined under section 3(f) of E.O. 12866, as amended by Executive Order 14094. Accordingly, OMB has not reviewed this rule.

DHS estimates an additional annual transfer of $184,715,135 in revenue to be collected from fee-paying applicants and petitioners (public) to DHS, due to the increase in premium processing fees subject to an adjustment for inflation (Table 1). 13

Authority for This Rulemaking

This rule implements the Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA), Public Law 101-410, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), Public Law 114-74, 129 Stat. 599, codified at 28 U.S.C. 2461 note. The FCPIAA and the 2015 Act require Federal agencies to adjust minimum and maximum civil penalty amounts to preserve their deterrent impact. The 2015 Act amended the formula and frequency of the adjustments. It required an initial catch-up adjustment in the form of an interim final rule, followed by annual adjustments of civil penalty amounts using a statutorily mandated formula. Section 4(b)(2) of the 2015 Act specifically directs that the annual adjustment be accomplished through final rule without notice and comment. This rule is effective immediately.

The Department's authorities over the specific civil penalty regulations being amended by this rule are provided in the preamble discussion below.

On November 2, 2015, the President signed into law the 2015 Act, which amended the FCPIAA, to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. The 2015 Act requires Federal agencies to: (1) adjust the level of civil monetary penalties with an initial “catch-up” adjustment through an interim final rule (IFR); and (2) make subsequent annual adjustments.

The 2015 Act directed the Office of Management and Budget (OMB) to issue guidance on implementing the required annual adjustment no later than December 15 of each year. 1 OMB released this required guidance in OMB Memorandum M-24-07, available at https://www.whitehouse.gov/omb/information-for-agencies/memoranda/, which provides instructions on how to calculate the 2024 annual adjustment. To derive the 2024 adjustment, the Department must multiply the maximum or minimum penalty amount by the percent change between the October 2023 Consumer Price Index for All Urban Consumers (CPI-U) and the October 2022 CPI-U. In this case, as explained in OMB Memorandum M-24-07 the percent change between the October 2023 CPI-U and the October 2022 CPI-U is 1.03241. 2

This final rule is being published without notice and comment and with an immediate effective date. The 2015 Act provides clear direction for how to adjust the civil penalties, and clearly states at section 4(b)(2) that this adjustment shall be made “notwithstanding section 553 of title 5, United States Code.” By operation of the 2015 Act, DOT must publish an annual adjustment by January 15 of every year, and the new levels take effect upon publication of the rule. Accordingly, DOT is publishing this final rule without prior notice and comment, and with an immediate effective date.

In 2016, OST and DOT's operating administrations with civil monetary penalties promulgated the “catch up” IFR required by the 2015 Act. All DOT operating administrations have already finalized their “catch up” IFRs, and this rule makes the annual adjustment required by the 2015 Act.

The Department emphasizes that this rule adjusts penalties prospectively, and therefore the penalty adjustments made by this rule will apply only to violations that take place after this rule becomes effective. This rule also does not change previously assessed or enforced penalties that DOT is actively collecting or has collected.

OST's 2024 civil penalty adjustments are summarized in the chart below.

FAA's 2024 civil penalty adjustments are summarized in the chart below.

NHTSA's 2024 civil penalty adjustments are summarized in the chart below.

FMCSA's civil penalties affected by this rule are all located in appendices A and B to 49 CFR part 386. The 2024 adjustments to these civil penalties are summarized in the chart below. Note that the civil penalties for violations of Appendix A IV (h) and (j) were incorrectly stated in the regulatory text of the 2023 update as $31,536 rather than $28,304 (88 FR 1114, 1130; Jan. 6, 2023), though these penalties were correctly stated in the preamble as updated from $26,269 as $28,304 ( Id. at 1117). These errors have been corrected in this 2024 update. In addition, the civil penalties for violations of Appendix B (i)(1) and (2) were incorrectly stated in the regulatory text of the 2023 update as $6,247 rather than $6,441 ( Id. at 1131), though these penalties were correctly stated in the preamble as updated from $5,978 to $6,441 ( Id. at 1119). These errors have also been corrected in this 2024 update.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-2396; Project Identifier MCAI-2023-01147-R” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Dan McCully, Aviation Safety Engineer, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; telephone (404) 474-5548; email william.mccully@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2022-27-09, Amendment 39-22294 (88 FR 2199, January 13, 2023) (AD 2022-27-09), for certain Airbus Helicopters Model EC130T2 helicopters. AD 2022-01-05 was prompted by EASA Emergency AD 2022-0251-E, dated December 14, 2022 (EASA AD 2022-0251-E), originated by EASA, which is the Technical Agent for the Member States of the European Union. EASA AD 2022-0251-E was issued to correct an unsafe condition on Airbus Helicopters Model EC 130 T2 helicopters with modification 079809 incorporated in production. AD 2022-27-09 required repetitively inspecting the balancing of the tail rotor drive shaft by measuring the vibration level. Depending on the results, AD 2022-27-09 required accomplishing corrective action in accordance with a method approved by the FAA, EASA, or Airbus Helicopters' EASA Design Organization Approval, and reporting the results to Airbus Helicopters. Lastly, AD 2022-27-09 prohibited installing certain part-numbered tail rotor drive shafts on any helicopter unless its requirements were met. The FAA issued AD 2022-27-09 to address an excessive vibration level on the tail rotor drive shaft, which could result in failure of the tail rotor drive shaft and subsequent loss of yaw control of the helicopter.

Since the FAA issued AD 2022-27-09, EASA superseded EASA AD 2022-0251-E by issuing EASA Emergency AD 2023-0190-E, dated November 2, 2023 (EASA AD 2023-0190-E), to correct an unsafe condition on Airbus Helicopters Model EC 130 T2 helicopters with modification 079809 incorporated in production. EASA AD 2023-0190-E states that it was identified that one of the vibration measurement tools was providing different results than expected and therefore it was determined that the threshold must be revised. Consequently, Airbus Helicopter revised its service information to provide updated vibration inspection instructions, reduce an allowable vibration level, and clarify when a balance correction may be accomplished. Accordingly, EASA AD 2023-0190-E retains the requirements of EASA AD 2022-0251-E and depending on the results of the updated vibration inspection, requires replacing certain parts with new (zero total hours time-in-service) parts. Additionally, EASA AD 2023-0190-E prohibits performing a balance correction unless it is performed concurrently with replacement of certain parts by following certain procedures. However, if a balance correction has already been performed independent of replacing the sliding flange and the splined sleeve equipped, EASA AD 2023-0190-E requires contacting Airbus Helicopter for further approved instructions. EASA considers its AD an interim action and states that further AD action may follow. See EASA AD 2023-0190-E for additional background information.

Additionally, the FAA discovered that an incorrect U.S. fleet count was provided in the Costs of Compliance section of AD 2022-27-09. This AD corrects that count.

EASA AD 2023-0190-E requires repetitively checking the balancing of the tail rotor drive shaft by measuring the vibration level. Depending on the results, EASA AD 2023-0190-E requires replacing certain parts with new parts. EASA AD 2023-0190-E also prohibits performing a balance correction unless this action is performed concurrently with replacing certain parts. If a balance correction has already been performed independently of replacing those parts, EASA AD 2023-0190-E requires contacting Airbus Helicopters to obtain approved instructions and accomplishing those instructions. EASA AD 2023-0190-E also requires reporting the vibration measurements to Airbus Helicopters. Lastly, EASA AD 2023-0190-E prohibits installing certain part-numbered tail rotor drive shafts on any helicopter unless its requirements are met.

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

The FAA reviewed Airbus Helicopters Emergency Alert Service Bulletin No. EC130-05A042, Revision 1, dated November 2, 2023 (EASB EC130-05A042 Rev 1). This service information specifies procedures for measuring the vibration level on the tail rotor drive shaft, reporting the results to Airbus Helicopters, and replacing the sliding flange and the splined sleeve equipped.

The FAA also reviewed AMM Task 65-11-01,5-1A, Adjustment—Balancing of the tail rotor drive line (with the STEADY Control tuning equipment)—Tail Drive Line POST MOD 079809 and AMM Task 65-11-01,5-1B, Adjustment—Balancing of the tail rotor drive shaft (with the VIBREX 2000 adjustment equipment)—Tail Drive Line POST MOD 079809, both Update 2 and dated July 3, 2022. This service information specifies procedures for measuring the vibration level on the tail rotor drive shaft, analyzing the results, and balancing the tail rotor drive line or shaft.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA of the unsafe condition described in its emergency AD. The FAA is issuing this AD after evaluating all pertinent information and determining that the unsafe condition exists and is likely to exist or develop on other helicopters of the same type design.

This AD retains certain requirements of AD 2022-27-09. This AD also requires accomplishing the actions specified in EASA AD 2023-0190-E, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD and except as discussed under “Differences Between this AD and the EASA Emergency AD.”

EASA AD 2023-0190-E refers to EASB EC130-05A042 Rev 1, for compliance times to replace the spline sleeve equipped and sliding flange. This AD requires those compliance times, as incorporated by reference, and are as follows:

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, EASA AD 2023-0190-E will be incorporated by reference in this FAA final rule. This AD would, therefore, require compliance with EASA AD 2023-0190-E in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in EASA AD 2023-0190-E does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2023-0190-E. Service information referenced in EASA AD 2023-0190-E for compliance will be available at regulations.gov by searching for and locating Docket No. FAA-2023-2396 after the FAA final rule is published.

EASA AD 2023-0190-E requires tail rotor drive shaft checks, whereas this AD requires tail rotor drive shaft inspections because those actions must be accomplished by persons authorized under 14 CFR 43.3.

For helicopters that accomplished a balance correction in accordance with the instructions of the applicable AMM before the effective date of EASA AD 2023-0190-E, except if this balance correction was accomplished before next flight after replacing the sliding flange and the splined sleeve equipped, EASA AD 2023-0190-E requires contacting AH [Airbus Helicopters] to obtain approved instructions, and within the compliance time(s) specified therein, accomplishing those instructions accordingly. Whereas, for helicopters that accomplished a balance correction in accordance with the instructions of the applicable AMM before the effective date of this AD, except not those that only accomplished a balance correction before the next flight after installing a new (zero total hours time-in-service) sliding flange and a new (zero total hours time-in-service) splined sleeve equipped, this AD requires corrective action accomplished in accordance with a method approved by the FAA, EASA, or Airbus Helicopters' EASA Design Organization Approval.

EASA AD 2023-0190-E requires reporting information to AH [Airbus Helicopters], whereas this AD does not.

EASA AD 2023-0190-E allows credit for the initial instance of the vibration measurements accomplished before its effective date, whereas this AD allows credit for any instance of the vibration measurements accomplished before the effective date of this AD.

EASA AD 2023-0190-E prohibits performing a balance correction, except if it is accomplished as part of its requirements. This AD does not, because such a compliance time would be difficult to enforce.

The FAA considers this AD interim action. If final action is later identified, the FAA might consider further rulemaking then.

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

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule because the tail rotor drive shaft is critical to the control of a helicopter and a failure of the tail rotor drive shaft could occur during any phase of flight without previous indication. The FAA also has no information pertaining to how quickly the condition may propagate to failure. In light of this and, depending how many hours the helicopter has accumulated, for some operators the initial inspection must be accomplished before further flight. For other operators, the initial inspection must be accomplished before accumulating 50 total hours time-in-service or within three months, whichever occurs first, which is shorter than the time necessary for the public to comment and for publication of the final rule. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forgo notice and comment.

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

The FAA estimates that this AD affects 117 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Inspecting the tail rotor drive shaft takes approximately 4 work-hours for an estimated cost of $340 per helicopter and $39,780 for the U.S. fleet, per inspection cycle.

If required, replacing the sliding flange and the splined sleeve equipped takes approximately 40 work-hours and parts cost $3,420 for an estimated cost of $6,820, per replacement cycle.

For helicopters that accomplished a balance correction in accordance with the instructions of the applicable AMM before the effective date of this AD, except not those that only accomplished a balance correction before the next flight after installing a new (zero total hours time-in-service) sliding flange and a new (zero total hours time-in-service) splined sleeve equipped, the corrective action that may be needed could vary significantly from helicopter to helicopter. The FAA has no data to determine the costs to accomplish the corrective action or the number of helicopters that may require corrective action.

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

Background

The CHIPS Act, 15 U.S.C. 4651, et seq., established a semiconductor incentives program (CHIPS Incentives Program) to incentivize, through Federal funding, investments in the construction, expansion, and modernization of facilities and equipment in the United States for the fabrication, assembly, testing, advanced packaging, production, or research and development of semiconductors, materials used to manufacture semiconductors, or semiconductor manufacturing equipment. The CHIPS Incentives Program is administered by the CHIPS Program Office (CPO) within the National Institute of Standards and Technology (NIST) of the Department.

On March 23, 2023, CPO published a proposed rule that requested comment on defined terms used in the Act (including terms that will be used in required agreements with covered entities), identified the types of transactions that are prohibited under the Expansion Clawback and Technology Clawback sections of the Act, and provided a description of the proposed process for notification of certain transactions to the Secretary (88 FR 17439). After considering extensive public comments, on September 25, 2023, CPO published a final rule Preventing the Improper Use of CHIPS Act Funding (88 FR 65600). Among other issues, the final rule addressed the Expansion Clawback, which prohibits the covered entity and members of its affiliated group from engaging in any significant transaction involving the material expansion of semiconductor manufacturing capacity in a foreign country of concern. The final rule also addressed the exceptions to this general prohibition.

The definition of “material expansion,” which is used both in the general prohibition and in one of the exceptions, focused on the expansion of “existing” semiconductor manufacturing facilities, which created confusion as to whether the construction of entirely new semiconductor fabrication facilities fell within the scope of the final rule. This update to the final rule clarifies that new facilities are included within the scope of the final rule.

The final rule defines “material expansion” as an “increase of the semiconductor manufacturing capacity of an existing facility by more than five percent of the capacity memorialized in the required agreement due to the addition of a cleanroom, production line or other physical space, or a series of such additions.” 15 CFR 231.108.

Defining material expansion in relation to “an existing facility” had the unintended effect of suggesting that the construction of new semiconductor facilities fell outside the scope of the Expansion Clawback. Such an interpretation would be inconsistent with the CHIPS Act and the general restrictions of the Expansion Clawback, which significantly limit the ability of covered entities to expand their semiconductor manufacturing capacity in foreign countries of concern. Indeed, CPO made clear in the proposed rule and in the preamble to the final rule that the restrictions of the Expansion Clawback were intended to apply to the construction of a new facility. In the preamble of the proposed rule, CPO noted that the term “material expansion” included “ the construction of new facilities and the addition of new semiconductor manufacturing capacity and uses a quantitative measure of 5 percent of existing capacity to provide clear and predictable scoping.” 88 FR 17439, 17441 (emphasis added). Further, the definition in the proposed rule provides: “Material expansion means the addition of physical space or equipment that has the purpose or effect of increasing semiconductor manufacturing capacity of a facility by more than five percent or a series of such expansions which, in the aggregate during the applicable term of a required agreement, increase the semiconductor manufacturing capacity of a facility by more than five percent of the existing capacity when the required agreement was entered into.” Id. at 17447. This definition used the term “facility” generally, resulting in an interpretation that a facility may be either new or existing.

Commenters also understood that the Expansion Clawback was intended to address the construction of new semiconductor facilities. CPO received 27 comment submissions, and a significant portion of those comments related to material expansion. Numerous commenters noted that the intent of the CHIPS Act was to allow existing facilities in a foreign country of concern to continue to operate so that ongoing operations would not be undermined and so funding recipients and could realize the value of their prior investments. Commenters did not raise significant concerns with placing restrictions on the construction of new facilities, and in some instances suggested that the definition of material expansion be modified to clarify that it was triggered by new construction (“material expansion means building new cleanroom space that does not exist on the date of the [award];” material expansion should apply to “building new clean room/physical space”). There was a general understanding that the Expansion Clawback was intended to address new construction.

In the final rule, CPO provided explanations that reflect the intent for the Expansion Clawback to address the construction of new facilities. In response to comments on the definition of Significant Renovations, CPO noted that “[w]ithout the concept of significant renovations, covered entities could evade the expansion prohibition simply by significantly expanding an existing facility rather than constructing a new facility.” 88 FR 65600, 65607. This response assumes that the construction of new facilities was addressed by the Expansion Clawback, and that the concept of significant renovations was needed to prevent circumvention of that prohibition.

In this rule, the modified definition of “material expansion” better reflects the intended scope of the Expansion Clawback.

Pursuant to 5 U.S.C. 553(a)(2), the provisions of the APA requiring notice of proposed rulemaking and the opportunity for public participation are inapplicable to this rule, which places certain limitations on funding recipients, because it relates to “public property, loans, grants, benefits, or contracts.”  1  Additionally, although it was not required to do so, the Department, through the March 23, 2023, proposed rule, provided advance notice and opportunity for public comment on the definition of the term “material expansion.”

This final rule simply corrects an inadvertent omission in the definition of “material expansion,” thereby accurately reflecting the Department's explanation and discussion of public comments in the September 25, 2023, final rule. Additional advance notice and opportunity for comment would neither provide new information to the public nor inform any agency decision-making regarding the defined term. Finally, additional opportunity for public comment would be contrary to the public interest, under 5 U.S.C. 553(b)(B), because this rule provides clarity to applicants and awardees.

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

The Office of Management and Budget (OMB) has determined that this final rule is significant for purposes of Executive Order 12866.

Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553(a)(2), the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

This action does not contain a collection of information requirement for the purposes of the Paperwork Reduction Act (44 U.S.C. 3501, et seq. ).

For reasons set out in the preamble, 15 CFR part 231 is amended as follows:

Electronic Availability

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

On December 1, 2023, OFAC issued GL 78 to authorize certain transactions otherwise prohibited by the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587. GL 78 was made available on OFAC's website ( https://ofac.treasury.gov ) when it was issued. The text of this GL is provided below.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register IGLD85 International Great Lakes Datum of 1985 LWD Low Water Datum based on IGLD85 OMB Office of Management and Budget NPRM Notice of Proposed Rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

On May 5, 2023, the Coast Guard published an NPRM, with a request for comments, entitled “Drawbridge Operations Regulation: River Rouge, Detroit, MI “in the Federal Register (88 FR 29005), to seek comments on whether the Coast Guard should consider modifying current operating schedules of certain drawbridges over the River Rouge to improve communications and establish winter hours. The National Steel Cooperation Railroad Bridge, mile 0.40, is a single leaf bascule bridge that provides horizontal clearance of 125-feet and a vertical clearance of 6-feet in the closed and an unlimited clearance above LWD.

The West Jefferson Avenue Bridge, mile 1.10, is a double leaf bascule Bridge that provides horizontal clearance of 125-feet and a vertical clearance of 9-feet in the closed and an unlimited clearance in the open position above LWD.

The Conrail Bridge, mile 1.48, is a single leaf bascule bridge that provides horizontal clearance of 123-feet and a vertical clearance of 8-feet in the closed and an unlimited clearance in the open position above LWD and it is remotely operated.

The Norfolk Southern Railroad Bridge, mile 1.87, is a single leaf bascule Bridge that provides horizontal clearance of 125-feet and a vertical clearance of 8-feet in the closed and an unlimited clearance in the open position above LWD.

The Fort Street Bridge, mile 2.20, is a single leaf bascule Bridge that provides horizontal clearance of 118-feet and a vertical clearance of 9-feet in the closed and an unlimited clearance in the open position above LWD.

The main channel of the river was the result of Mr. Henry Ford needing to straighten the entrance of the River Rouge to accommodate deliveries of raw materials to his automotive plant. This main channel, formally known as the short cut channel, formed Zug Island at the mouth of the river. The original channel that curves around the north and west sides of Zug Island is known as the old channel and is crossed by two movable bridges.

The Delray Connecting Railroad Bridge, mile 0.34, is a single leaf bascule Bridge that provides horizontal clearance of 120-feet and a vertical clearance of 7-feet in the closed and an unlimited clearance in the open position above LWD.

The Delray Connecting Railroad Bridge, mile 0.80, is a swing Bridge that provides horizontal clearance of 102-feet and a vertical clearance of 7-feet in the closed and an unlimited clearance in the open position above LWD.

The Coast Guard is issuing this rule under authority 33 U.S.C. 499.

Commercial mariners have expressed concern that the waterway is crooked and narrow and that to safely navigate the river, they needed to know the status of each bridge in the river prior to entering the waterway. As such, commercial mariners requested that all bridges maintain and operate a marine radio. Review by the Coast Guard of specific complaints of repeated difficulty contacting the Conrail Bridge and the Norfolk Southern Railroad Bridge by radio caused the Coast Guard to determine that these bridges must maintain and make public a phone number for mariners to communicate with the drawtenders.

The institution of winter hours for drawbridges over the River Rouge will modernize bridge operations by authorizing the bridges to operate with a 12-hour advance notice during winter months, as is the practice for drawbridges on similar waterways throughout the Great Lakes.

The Coast Guard provided a comment period of 60 days, and no comments were received.

Commercial mariners have complained the waterway is crooked and narrow and they needed to know the status of each bridge in the river prior to entering the waterway. Requiring all bridges to maintain and operate a marine radio will facilitate this need. Furthermore, the complaints of difficulty contacting the Conrail Bridge, mile 1.48 and the Norfolk Southern Railroad Bridges by radio the Coast Guard has determined that these bridges make public a phone number for mariners to communicate with the drawtenders.

Awarding winter hours to the River Rouge has been over looked and will be established in the regulation authorizing the bridges to operate with a 12-hour advance notice from January 1 through March 31 when the river is normally frozen and impassable by most vessels.

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.

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, it has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the ability that vessels can still transit the bridge given advanced notice.

The Regulatory Flexibility Act of 1980 (RFA), 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 did not receive any comments from the Small Business Administration on this rule. 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 bridge 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 contact 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 calls for no 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.

We did not receive any comments during the NPRM.

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 Management Directive 023-01, Rev.1, associated implementing instructions, and Environmental Planning Policy COMDTINST 5090.1 (series) which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). The Coast Guard has 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 promulgates the operating regulations or procedures for drawbridges and is categorically excluded from further review, under paragraph L49, of Chapter 3, Table3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.

Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the event sponsor did not submit notice of the fireworks display to the Coast Guard with sufficient time remaining before the event to publish an NPRM. Delaying the effective date of this rule to wait for a comment period to run would be impracticable and contrary to the public interest by inhibiting the Coast Guard's ability to protect spectators and vessels from the hazards associated with this fireworks display.

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 . For the same reasons discussed in the preceding paragraph, waiting for a 30-day notice period to run would be impracticable and contrary to the public interest.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port (COTP) Eastern Great Lakes has determined that fireworks over the water presents significant risks to public safety and property. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the fireworks display is taking place.

This rule establishes a safety zone from 11:40 p.m. December 31, 2023, through 12:30 a.m. on January 1, 2024. The safety zone will cover all navigable waters within a 105-foot radius of land launched fireworks over the Erie Canal, in North Tonawanda, NY. The duration of the zone is intended to protect spectators, vessels, and the marine environment in these navigable waters during the fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP Eastern Great Lakes or a designated representative.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under 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-day of the safety zone. The safety zone will encompass a 105-foot radius of land launched fireworks in the Erie Canal, in North Tonawanda, NY. lasting approximately one hour during the evening when vessel traffic is normally low. 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.

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.

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 only 50 minutes that will prohibit entry within 105 feet of the fireworks launch site. 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:

The Coast Guard will enforce a safety zone in 33 CFR 165.1125, Table 1 to § 165.1125, item 15, for New Year's Eve Fireworks, Los Angeles County, from 8 p.m. on December 31, 2023, to 1 a.m. on January 1, 2024. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for firework events within the Los Angeles Long Beach Captain of the Port zone, Table 1 to § 165.1125 item 15, specifies the location of the regulated area for the New Year's Eve Fireworks which encompasses portions of the Marina del Rey Harbor and Ballona Creek. During the enforcement periods, as reflected in § 165.1125, if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.

The Coast Guard recently published a proposed rule (88 FR 83511, November 30, 2023) and subsequent final rule titled “Safety Zone; Marina Del Rey, California” which proposed to add this event 15 to the table 1 to § 165.1125.

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

If the Captain of the Port Los Angeles—Long Beach determines that the safety zone need not to be enforced for the full duration stated in this notice, the Captain of the Port may use a Broadcast Notice to Mariners to reflect the change.

The Coast Guard will enforce the safety zone regulations in 33 CFR 165.1191 for the event and location listed in Table 1 to § 165.1191, Item number 24, for the San Francisco New Year's Eve Firework Display from noon on December 31, 2023, through 12:45 a.m. on January 1, 2024. The Coast Guard will enforce a 100-foot safety zone around the fireworks barge during the loading, standby, transit, and arrival of the fireworks barge from the loading location to the display location and until the start of the fireworks display. On December 31, 2023, the fireworks barge will be loaded with pyrotechnics at Pier 64, Wharf 4 in San Francisco, CA from approximately noon until approximately 6 p.m. The fireworks barge will remain on standby at the load location until their transit to the display location. From 10:45 to 11:15 p.m. on December 31, 2023, the loaded fireworks barge will transit from Pier 64, Wharf 4 to the launch site near the San Francisco Ferry Building in approximate position 37°47′45″ N, 122°23′15″ W (NAD 83), where they will remain until the conclusion of the fireworks display. At approximately 11:45 p.m. on December 31, 2023, 15-minutes prior to the fireworks display, the safety zone will expand to encompass all navigable waters, from surface to bottom, within a circle formed by connecting all points 1,000 feet out from the fireworks barge. The fireworks barge will be near the San Francisco Ferry Building in San Francisco, CA in approximate position 37°47′45″ N, 122°23′15″ W (NAD 83) as set forth in 33 CFR 165.1191, Table 1, Item number 24. The safety zone will be enforced until 12:45 a.m. on January 1, 2024, or as announced via Broadcast Notice to Mariners.

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

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

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

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

On October 5, 2023, Los Angeles County notified the Coast Guard that it will be conducting its annual boat parade firework display during the second weekend in December, as well as its New Year's Eve fireworks display on December 31st each year. In both events, the fireworks will be launched from Marina del Rey's South Jetty that runs between Ballona Creek and the entrance to Marina del Rey, CA. In response, on November 30, 2023, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Safety Zone; Marina Del Rey, California” (88 FR 83511). There we stated why we issued the NPRM and invited comments on our proposed regulatory action related to this fireworks display. During the comment period that ended December 15, 2023, we received 2 supportive 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 ensure potential hazards associated with the fireworks are not a safety concern for anyone within a 1000-foot radius of the pyrotechnics platform during the annual December New Year's events.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Los Angeles-Long Beach (COTP) has determined that potential hazards associated with the fireworks to be used in these annual fireworks events to be a safety concern for anyone within a 1000-foot radius of the pyrotechnics platform. The purpose of this rule is to ensure safety of vessels and the navigable waters within a 1000-foot radius of the fireworks platform before, during, and after the annual events for this year and future years.

As noted above, we received 2 comments in support of our NPRM published on November 30, 2023. Both commenters supported the need for the safety zone around the firework events to prevent injury and protect vessels from debris. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes two recurring safety zones that will be enforced prior, during, and after two annual firework events. The COTP is adding two events to Table 1 to 33 CFR 165.1125 for Southern California Annual Firework Events for the Los Angeles-Long Beach Captain of the Port zone. The temporary safety zones will take place annually in the Marina Del Rey Harbor Channel Entrance for approximately two hours each on the second weekend in December and on New Year's Eve, December 31st. The safety zone will cover all navigable waters within 1000 feet of the fireworks launch site on Marina del Rey's South Jetty that runs between Ballona Creek and the entrance to Marina del Rey, CA. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled annual fireworks displays. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under 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-day of the safety zone. Vessel traffic will be able to safely transit around these safety zones before and after the fireworks displays, which will impact the entrance of Marina del Rey and Ballona Creek for a short two-hour window during the evenings when vessel traffic is normally low. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule allows vessels to seek permission to enter the zone.

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 two safety zones lasting a few hours each that will prohibit entry within 1,000 feet of a fireworks launch platform in Marina del Rey, CA. 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:

Throughout this document wherever “we” or “our” is used, it means the EPA.

On June 15, 2023 (88 FR 39210), EPA proposed to approve several SIP revisions submitted by the State of Washington, through the Washington State Department of Ecology on November 12, 2019. In that proposal, we also proposed to determine that one of the SIP revisions, the removal of WAC 173-400-107, corrects the deficiency with respect to Washington that we identified in our June 12, 2015 action entitled “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction” (“2015 SSM SIP call”) (80 FR 33839, June 12, 2015). 1 The remaining SIP revisions submitted with the request to remove WAC 173-400-107 on November 12, 2019, were not subject to the 2015 SSM SIP call. The reasons for our proposed approval and determination can be found in the proposed action and will not be fully restated here (88 FR 39210, June 15, 2023).

The EPA's proposed action provided a 30-day public comment period which ended on July 17, 2023. We received one set of comments from the public signed by representatives of the Sierra Club and Environmental Integrity Project. The full text of the comments is available in the docket for this rulemaking. Issues raised in the comments, and our responses are summarized below.

WAC 173-400-107 was the only provision identified as deficient for Washington State Department of Ecology in the 2015 SSM SIP call. The commenters agreed that removal of WAC 173-400-107 from the SIP would satisfy the 2015 SSM SIP call. EPA acknowledges the commenter's support and is finalizing the removal of WAC 173-400-107 in this action. As stated in our proposed approval (88 FR 39210, June 15, 2023), EPA's removal of the provision providing for an affirmative defense corrects the deficiency identified in our 2015 SSM SIP call regarding the Washington State Department of Ecology. The remaining SIP revisions submitted with the request to remove WAC 173-400-107 on November 12, 2019, were not subject to the 2015 SSM SIP call.

The commenters “generally agree that Washington's proposal is generally an improvement over the current SSM exemptions” but also raised several concerns regarding the revisions to WAC 173-400-040 that we proposed to approve. On December 12, 2023, the State withdrew those revisions from its November 12, 2019, submittal via letter to EPA. 2 Accordingly, EPA is not taking final action on those revisions and therefore is not responding to the portions of the comment regarding WAC 173-400-040 in this action.

Washington also withdrew three analogs to WAC 173-400-040, specifically: WAC 173-405-040(6)(b), WAC 173-410-040(3)(b), and WAC 173-415-030(3)(b). Accordingly, EPA is not finalizing the proposed approval of these withdrawn provisions. Should these or other revisions be submitted to EPA for approval, EPA will publish an additional proposed rule and provide an opportunity for public comment prior to taking any final action on them.

The 2015 SSM SIP call did not obligate Washington to make or submit any revisions other than removing WAC 173-400-040. Accordingly, approval of the remaining revisions as well as the withdrawal of some of them do not affect the disposition of Washington's obligation under the 2015 SSM SIP call. As stated above and in our proposed approval, the portion of the November 12, 2019, removing WAC 173-400-107 from the SIP and the State regulations is fully responsive to the 2015 SSM SIP call and no further action is required to satisfy the 2015 SSM SIP call.

Comment. The commenters claim that this provision does not comport with “[t]he first criterion of EPA's seven for approving AELs [alternative emission limitations]” as it is not “limited to specific, narrowly defined source categories using specific control strategies.”  3 The commenters assert “[s]ource-specific alternative emission limitations, generally, are not proper.” The commenters also assert “the source-by-source approach that Washington is taking here `could lead to inconsistent alternative limits for sources that should probably have similar alternative limits for startup or shutdown,'” citing a Federal Register notice in which EPA proposed disapproval of AELs submitted for approval into the West Virginia SIP. 4 The commenters also assert that “a source-by-source approach makes it difficult to consider the cumulative impact of all the source-specific emission limitations on air quality.”

Response. As stated in the 2015 SSM SIP call, EPA believes there will be limited cases where it may be necessary to develop source-specific emission requirements for startup and or shutdown. WAC 173-400-081 merely establishes a pathway for such limited cases as may be necessary. Any source-specific emission limits developed pursuant to this provision must go through the SIP approval process and any comments on actual emissions limits could be raised during those individual rulemaking actions. Therefore, EPA believes the commenters' concerns are premature regarding whether any future AELs submitted through this process would meet the recommended criteria in the 2015 SSM SIP call. Moreover, EPA has acknowledged that source-specific AELs could be appropriate in some limited circumstances, so we disagree that merely establishing a pathway for developing such AELs and revising the SIP accordingly is inconsistent with the 2015 SSM SIP Call.

We also disagree that EPA's prior disapproval of West Virginia's AELs, as referenced by the commenters, supports disapproval here. EPA disapproved West Virginia's submittal primarily because the provisions at issue would have provided the State with discretion to create source-specific AELs without submitting those AELs to EPA for approval into the SIP. EPA further identified the concern that West Virginia's AEL process “could lead to inconsistent alternative limits for sources that should probably have similar alternative limits for startup and shutdown.”  5 However, in light of the fact that the SIP revision process for the AELs created pursuant to WAC 173-400-081 allows both EPA and any concerned members of the public an opportunity to identify any alleged inconsistencies, those concerns are not applicable here. For the aforementioned reasons and those stated in our proposed approval, EPA is finalizing approval of this provision.

EPA is approving and incorporating by reference in the Washington SIP at 40 CFR 52.2470(c) revisions to WAC 173-400-030, 173-400-070, 173-400-081, and 173-400-171 (State effective 9/16/2018); revisions to 173-405-040, 173-410-040, and 173-415-030 (State effective 5/24/2018); the addition of WAC 173-400-082 (State effective 9/16/2018); and the removal of 173-405-077, 173-410-067, and 173-415-070. This approval is consistent with the exceptions requested by the State in the November 5, 2019, submittal as described in the proposal for this action and set forth in the amendments to 40 CFR part 52 below. This approval is also consistent with the State's withdrawal of certain revisions as described in the State's December 14, 2023, letter. In addition, this action removes provision WAC 173-400-107—identified as inconsistent with CAA requirements—from the Washington SIP thereby correcting the deficiency identified in our 2015 SSM SIP call with respect to Washington State Department of Ecology.

Once this approval becomes effective, changes to WAC 173-400 will apply specifically to the jurisdictions of Washington Department of Ecology and Benton Clean Air Agency. Under the applicability provisions of WAC 173-405-012, WAC 173-410-012, and WAC 173-415-012, BCAA does not have jurisdiction for kraft pulp mills, sulfite pulping mills, and primary aluminum plants. For these sources, Washington Department of Ecology retains statewide, direct jurisdiction over these sources.

Once this approval becomes effective, the Washington SIP will include the following regulations:

• WAC 173-400-030, Definitions (State effective 9/16/2018)—Establishes definitions used throughout Chapter 173-400 WAC;

• WAC 173-400-070, Emission Standards for Certain Source Categories (State effective 9/16/2018)—sets forth maximum allowable standards for emissions units within the categories listed;

• WAC 173-400-081, Emission Limits during Startup and Shutdown (State effective 9/16/2018)—establishes pathway for developing emissions limits that apply during startup and shutdown;

• WAC 173-400-082, Alternative Emission Limit That Exceeds an Emission Standard in the SIP (State effective 9/16/2018)—establishes pathway for an owner or operator to request an alternative emissions limit;

• WAC 173-400-171 Public Involvement (State effective 9/16/2018)—sets forth certain requirements for public involvement;

• WAC 173-405-040, Emission Standards (State effective 5/24/2018)—sets forth certain emission standards for kraft pulping mills;

• WAC 173-410-040, Emission Standards (State effective 5/24/2018)—sets forth certain emission standards for sulfite pulping mills;

• WAC 173-415-030, Emission Standards (State effective 5/24/2018)—sets forth certain emission standards for primary aluminum plants.

Once this approval becomes effective, the Washington SIP will no longer include the following regulations:

• WAC 173-400-107, Excess Emissions—established a pathway to determine excess emissions unavoidable, excuse them from penalty, and certain instances preclude them from being considered violations;

• WAC 173-405-077, Report of Startup, Shutdown, Breakdown or Upset Conditions—established applicability of WAC 173-400-107 for kraft pulping mills;

• WAC 173-410-067, Report of Startup, Shutdown, Breakdown or Upset Conditions—established applicability of WAC 173-400-107 for sulfite pulping mills;

• WAC 173-415-070, Report of Startup, Shutdown, Breakdown or Upset Conditions—established applicability of WAC 173-400-107 for primary aluminum plants.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of regulatory provisions described in section II of this preamble and set forth in the amendments to 40 CFR part 52 in this document. The EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the Clean Air Act as of the effective date of the final rule of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 6

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

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

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

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

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

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

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

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

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

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

The air agency did not evaluate environmental justice considerations as part of its SIP submittal; the Clean Air Act and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of this action, it is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of Executive Order 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

In addition, the SIP is not approved to apply on any Indian reservation land in Washington except as specifically noted below and is also not approved to apply in any other area where the 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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law. Washington's SIP is approved to apply on non-trust land within the exterior boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided State and local agencies in Washington authority over activities on non-trust lands within the 1873 Survey Area. Consistent with EPA policy, the EPA provided a consultation opportunity to potentially affected tribes in a letter dated May 24, 2022.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 26, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

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

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

On July 27, 2023, the EPA proposed to approve a revision to the California SIP concerning transportation conformity procedures for the San Francisco Bay Area. 1 The California Air Resources Board (CARB) submitted “The San Francisco Bay Area Transportation Air Quality Conformity Protocol—Conformity Procedures” and “The San Francisco Bay Area Transportation Air Quality Conformity Protocol—Interagency Consultation Procedures,” on May 17, 2021. We refer to these documents together as the “San Francisco Bay Area conformity SIP submittal.”  2 CARB submitted a prior version of the San Francisco Bay Area conformity SIP to the EPA for approval on December 20, 2006. The EPA approved this SIP revision on October 12, 2007. 3 The agencies responsible for developing and updating the San Francisco Bay Area conformity SIP—the Metropolitan Transportation Commission (MTC), the Bay Area Air Quality Management District (BAAQMD), and the Association of Bay Area Governments (ABAG), in consultation with the Sacramento Area Council of Governments (SACOG)—have since further amended the roles and responsibilities for implementing the transportation conformity interagency consultation process and for coordinating travel activity data sharing. The San Francisco Bay Area conformity SIP submittal also reflects an update to a memorandum of understanding that exists between MTC and SACOG as an agreement regarding federal conformity procedures and programming of federal Congestion Mitigation and Air Quality funds in Solano County. 4

In our proposal, we evaluated the San Francisco Bay Area conformity SIP submittal against the statutory and regulatory requirements of the CAA, 40 CFR part 93, and 40 CFR 51.390, which govern state procedures for transportation conformity and interagency consultation and concluded that the submittal meets these requirements. Furthermore, the comment period and public hearing held by MTC for this SIP revision satisfy the requirements of CAA section 110(l) and 40 CFR 51.102. A technical support document (TSD) is included in the docket for this rulemaking. Specifically, in our TSD, we identify how the submitted procedures satisfy requirements under 40 CFR 93.105 for interagency consultation with respect to the development of transportation plans and programs, SIPs, conformity determinations, the resolution of conflicts, the provision of adequate public consultation, and our requirements under 40 CFR 93.122(a)(4)(ii) and 93.125(c) for enforceability of control measures and mitigation measures. Please refer to our TSD and notice of proposed rulemaking for additional information regarding the content of the revised San Francisco Bay conformity SIP submittal and our review.

The 30-day public comment period for the notice of proposed rulemaking closed on August 28, 2023. During this period, a member of the public submitted two identical comments to the EPA in support of the proposed approval. The full text of these comments is available for viewing in the docket for this rulemaking.

In accordance with section 110(k)(3) of the Act, and for the reasons discussed in our proposed rulemaking and summarized in this document, we are finalizing our approval of the San Francisco Bay Area conformity SIP submittal as a revision to the California SIP. The revision will be incorporated into the San Francisco Bay Area portion of the California SIP and thereby replace the previous revision approved on October 12, 2007.

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

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);

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

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

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

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

• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, this rulemaking 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. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The State 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. The EPA did not perform an EJ analysis and did not consider EJ in this action. If finalized, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 26, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Authority: 42 U.S.C. 7401 et seq.

For the reasons stated in the preamble, the Environmental Protection Agency amends part 52, chapter I, title 40 of the Code of Federal Regulations as follows:

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

The background for this action is discussed in detail in our June 13, 2023, proposal (88 FR 38433). 1 In that document we proposed to approve a portion of the revisions to the Oklahoma SIP submitted on January 30, 2023. Our June 2023 proposal addressed only the portion of the submittal that referred to the Oklahoma Administrative Code (OAC) Title 252, Chapter 100 (denoted OAC 252:100), Subchapters 37, and 39. The remainder of the submitted revisions were addressed in a separate rulemaking action. 2

The revisions addressed in our June 2023 proposal add clarity and consistency to the Oklahoma SIP. The revisions do not relax the current SIP rules and are consistent with applicable Federal regulations. Therefore, and consistent with CAA section 110(l), we do not expect these revisions to interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the Act. More detail on these revisions is provided in the docket for this action.

Our June 2023 proposal provided a detailed description of the revisions and the rationale for the EPA's proposed actions, together with a discussion of the opportunity to comment. The public comment period for our June 2023 proposal was extended to August 14, 2023, to allow additional time for stakeholders to review and comment on the proposal.

We received comments from the Muscogee (Creek) Nation, the Chickasaw Nation, and two anonymous comments. One anonymous comment supported the extension of the comment period and the other was supportive of this action generally. Below are our responses to comments from the Muscogee (Creek) Nation and the Chickasaw Nation.

Comment: During Tribal Consultation, the Muscogee (Creek) Nation asked for more information regarding the number of compressor station facilities within the Muscogee Reservation.

Response: Region 6 was able to obtain the number of natural gas compressor stations within the Muscogee (Creek) Nation Reservation from the ODEQ emission inventory database. There are 79 compressor stations in the counties that make up the reservation.

Comment: Commenter stated concern about the number of compressor stations (and therefore the amount of loading at relevant condensate tanks) on Muscogee (Creek) Reservation land, the amount of VOC's, and the effects that the VOC's may have on Muscogee citizens' health and the environment.

Response: EPA agrees that VOC emissions can be harmful to human health and the environment but notes that this action will not result in any increase in emissions of VOCs. EPA has found this revision complies with Clean Air Act Requirements. EPA is required to approve SIP revisions that comply with all applicable requirements.

This action merely clarifies ODEQ's long standing interpretation that the provisions of Subchapter 37 do not apply to loading operations at condensate tanks at compressor stations. As this is just a clarification, there is no change to how these facilities are regulated in practice and there is no increase in emissions of VOC's. This type of loading, however, remains regulated under separate provisions specific to compressor station operations.

A loading facility has the main purpose of loading/unloading VOC's in relatively large quantities using specialized equipment. Although condensate loading operations occur at compressor stations, that is not its main purpose. The transfer of condensate and produced water from atmospheric storage tanks into individual tanker trucks at a compressor station is a different type of operation both in scale and in the equipment used than is the case in, for example, the bulk transfer of gasoline at a pipeline terminal/bulk gasoline distribution system. Condensate loading operations at compressor stations were not meant to be covered by 252:100-37-16 as they do not have the physical equipment (loading arm and pump) to conduct this type of loading and have much lower throughput and emissions. The loading of condensate from natural gas compressor station is regulated under other ODEQ rules such as 252:100-37-15(b) for submerged fill or a vapor recovery system which applies to most condensate tanks at compressor stations since a typical tank is about 400 barrels (16,800 gallons). Also, natural gas compressor stations are subject to federal New Source Performance Standards (NSPS) such as Subpart OOOO.

Comment: Commenter stated concern that incineration of petroleum solvents as in dry cleaning filters is not an acceptable process in Indian Country and that the incineration of petroleum solvents creates Hazardous Air Pollutants that cause health and environmental justice issues. The commenter also stated that the outdated compliance schedule should be replaced with an updated one.

Response: Based on its air quality inspections in Tulsa County, the ODEQ is not aware of any facilities that incinerate dry cleaning filters as referenced in this subchapter. In addition, the revision only clarifies that if a facility were to incinerate the filters, it can only be allowed if permitted by the appropriate regulatory entity. It is important to note that this section of the ODEQ rules does not set requirements that must be met to obtain a permit for incineration only that there be the appropriate permit which would be the case even if this provision was not included in the SIP. As such, the revision does not impact compliance with the Clean Air Act and therefore, EPA must approve the revision.

The revision also removes the outdated compliance schedule of October 1, 1986. There is no need to replace this schedule as there is not a grace period for facilities to get into compliance; existing facilities should be complying already, and new facilities would need to begin operations in compliance with this subchapter.

Comment: The commenter stated that there appears to be no environmental justice issue, but the Muscogee (Creek) Nation would like to see the EJ report and the reporting decision on the subject matter.

Response: Please see “EJ Considerations” document, Doc. ID 0005 in the docket for this action for review of Environmental Justice information related to this action.

Comment: In their comment, the Chickasaw Nation provides some background on SAFETEA and the McGirt v. Oklahoma litigation. This includes the most current status that while EPA proposed the withdrawal and reconsideration of the October 1, 2020, decision to grant Oklahoma authorization to administer EPA approved environmental programs in Indian Country, the October 2020 decision remains in effect until EPA takes final action. The Chickasaw Nation comments that the EPA's action on the Oklahoma SIP is premature and the agency should first resolve the issue of the withdrawal before proceeding with new regulatory actions under SAFETEA. The commenter recommends that no new actions that impact Indian country should be taken until a final decision is made on the October 2020 approval. The Chickasaw Nation also comments regarding the importance of EPA's federal trust obligations to Indian tribes including government-to-government consultations and asks that EPA be more proactive in its fulfillment of federal trust responsibilities.

Response: As stated in our June 2023 proposal, and by the commenter, the State retains its authority to administer authorized programs in certain areas of Indian country pursuant to the October 1, 2020, approval under SAFETEA while EPA undergoes its reconsideration of that decision. The State's authority includes the implementation the SIP in areas of Indian country included in the October 2020 approval and in non-reservation areas of Indian country pursuant to ODEQ v EPA. As also noted in the June 2023 proposal, EPA may make further changes to this final approval of Oklahoma's program to reflect the outcome of the proposed withdrawal and reconsideration of the October 1, 2020, SAFETEA approval. EPA notes that the litigation involving the October 2020 decision is currently being held in abeyance pending the outcome of EPA's reconsideration. EPA takes seriously its general federal trust responsibility to tribes. By example, EPA has engaged with and offered consultation to all affected Oklahoma tribes on this matter. EPA intends to continue its engagement with tribes on relevant matters, including on actions related to approvals in Oklahoma and with regards to SAFETEA.

We are approving portions of a SIP revision submitted to the EPA by the State of Oklahoma on January 30, 2023. Specifically, we are approving the revisions to OAC 252:100, Subchapters 37 (Control of Emission of Volatile Organic Compounds (VOCs), and 39 (Emission of Volatile Organic Compounds (VOCs) in Nonattainment Areas and Former Nonattainment Areas). We are approving these revisions in accordance with section 110 of the Act.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference the revisions to the Oklahoma regulations as described in Section III of this preamble, Final Action. The revised regulations address VOC emissions. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated in the next update to the SIP compilation.

As stated in the proposed action, on October 1, 2020, the EPA approved Oklahoma's request to administer all the State's EPA-approved environmental regulatory programs, including the Oklahoma SIP, in the requested areas of Indian country pursuant to section 10211(a) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005: A Legacy for Users, Public Law 109-59, 119 Stat. 1144, 1937 (August 10, 2005) (“SAFETEA”). 3

As requested by Oklahoma, the EPA's approval under SAFETEA does not include Indian country lands, including rights-of-way running through the same, that: (1) qualify as Indian allotments, the Indian titles to which have not been extinguished, under 18 U.S.C. 1151(c); (2) are held in trust by the United States on behalf of an individual Indian or Tribe; or (3) are owned in fee by a Tribe, if the Tribe (a) acquired that fee title to such land, or an area that included such land, in accordance with a treaty with the United States to which such Tribe was a party, and (b) never allotted the land to a member or citizen of the Tribe (collectively “excluded Indian country lands”). In addition, the State only sought approval to the extent that such approval is necessary for the State to administer a program in light of Oklahoma Dept. of Environmental Quality v. EPA, 740 F.3d 185 (D.C. Cir. 2014).

As explained earlier in this action, the EPA is approving revisions to portions of the Oklahoma SIP that were submitted by the State of Oklahoma on January 24, 2023. More specifically, we are approving a revision providing clarification to OAC 252:100-37-16 of Subchapter 37, Control of Emission of Volatile Organic Compounds (VOCs) and amending language and correcting approval process for OAC 252:100-39-45 of Subchapter 39, Emission of Volatile Organic Compounds (VOCs) in Nonattainment Areas and Former Nonattainment Areas, in the Oklahoma Administrative Code Title 252, Chapter 100, Oklahoma Department of Environmental Quality. Consistent with the D.C. Circuit's decision in ODEQ v. EPA and with EPA's October 1, 2020, SAFETEA approval, these SIP revisions will apply to all Indian country within Oklahoma, other than the excluded Indian country lands, as described earlier. Because—per the State's request under SAFETEA—EPA's October 1, 2020, SAFETEA approval does not displace any SIP authority previously exercised by the State under the CAA as interpreted in ODEQ v. EPA, the SIP will also apply to any Indian allotments or dependent Indian communities located outside of an Indian reservation over which there has been no demonstration of tribal authority. 4

As stated in our June 2023 proposal and posted in the docket for this action, EPA reviewed demographic data, which provides an assessment of individual demographic groups of the populations living within Oklahoma. EPA then compared the data to the national average 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 Oklahoma, the percent people of color (persons who reported their race as a category other than White alone (not Hispanic or Latino)) is less than the national average (38.5 percent versus 43.1 percent). Within people of color, the percent of the population that is Black or African American alone is less than the national average (7.8 percent versus 13.6 percent) and the percent of the population that is American Indian/Alaska Native is greater than the national average (9.7 percent versus 1.3 percent). The percent of the population that is two or more races is greater than the national average (6.6 percent versus 2.9 percent). The percent of people living in poverty in Oklahoma is greater than the national average (15.6 percent versus 11.6 percent).

This final action approves new rules into the Oklahoma SIP that are anticipated to add clarification and consistency to the SIP and will generally be neutral or contribute to reduced environmental and health impacts on all populations in Oklahoma, including indigenous people, people of color, and low-income populations. 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. EPA offered consultation on our proposed rulemaking to tribal governments that may be affected by this action. 5 We received one request for tribal consultation from the Muscogee Nation and provided such on August 10, 2023.

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

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

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

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

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

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

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

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

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Consistent with the EPA Policy on Consultation and Coordination with Indian Tribes (May 4, 2011), the EPA offered consultation (by letter dated June 8, 2023) on our proposed rulemaking to tribal governments that may be affected by this action. We received a request for formal tribal consultation from the Muscogee Nation and provided consultation on August 10, 2023.

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 Oklahoma Department of Environmental Quality did not evaluate EJ considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA performed an EJ analysis, as is described earlier 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 EJ for people of color, low-income populations, and Indigenous peoples.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 26, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

Table of Contents I. Background II. Public Comments and EPA's Response III. Final Action IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Background

On October 4, 2023 (88 FR 68529), the EPA published a Notice of Proposed Rulemaking that proposed to approve a State Implementation Plan (SIP) revision submitted by the NYSDEC on March 21, 2022, for purposes of enhancing an existing Emission Statement program for stationary sources in New York, with a state effective date of December 18, 2020.

The SIP revision was submitted by NYSDEC to satisfy the ozone nonattainment provision of the Act and allows NYSDEC to more effectively plan for and attain the national ambient air quality standards (NAAQS). The purpose of 6 NYCRR Subpart 202-2, “Emission Statements,” is to establish the requirements for annual emission statements filed by facilities subject to Title V operating permits under the Act. These requirements are set forth in EPA's Air Emission Report Requirements rule (AERR). See 40 CFR 51 Subpart A. The SIP revision establishes electronic reporting requirements for annual emission statements filed by facilities subject to Title V operating permits of the Act beginning in 2022 (for calendar year 2021 emission reporting).

The specific details of NYSDEC's SIP submittal and the rationale for the EPA's approval action are explained in the EPA's proposed rulemaking and are not restated in this final action. For this detailed information, the reader is referred to the EPA's October 4, 2023, proposed rulemaking. See 88 FR 68529.

In response to the EPA's October 4, 2023, proposed rulemaking on NYSDEC's SIP revision, the EPA received three supportive comments during the 30-day public comment period. The specific comments may be viewed under Docket ID Number EPA-R02-OAR-2023-0175 on the https://regulations.gov website.

One commenter indicated that by enacting policies such as this, the NYSDEC can better regulate the major sources of air pollution and therefore move us toward achieving the NAAQS. Implementing an electronic submission system for major polluters will impose more responsibility on them to meet these emission requirements, especially if these companies are fined for not doing so. Additionally, the commenter suggested that this annual record be made available to the public.

The EPA acknowledges the commenter's support of the EPA's proposed rule. Title 6 NYCRR, Chapter III, Part 202, Subpart 202-2.4(j) indicates that the facilities may be subject to enforcement actions, including monetary fines for incomplete and inaccurate emission statements. The commenter can review it at the EPA Docket ID number EPA-R02-OAR-2023-0175. The EPA also recognizes the commenter's request for the EPA to make the records publicly available. The public can access the annual emission records on NYSDEC's website www.dec.ny.gov/chemical/125566.html#point .

Two additional public comments were received, which were supportive of the EPA's proposed approval of NYSDEC's SIP revisions. The commenters indicated that the revisions to the SIP improve air quality.

The EPA acknowledges the commenters' support of the EPA's proposed rule.

The EPA is approving a SIP revision submitted by NYSDEC on March 21, 2022, for purposes of enhancing an existing Emission Statement program for stationary sources in New York. The SIP revision consists of amendments to Title 6 NYCRR, Chapter III, part 202, subpart 202-2, “Emission Statements,” with a state effective date of December 18, 2020.

Based on the EPA's review, the Emission Statement rule contains the necessary applicability, compliance, enforcement, and reporting requirements for an approvable emission statement program.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the 6 NYCRR Part 202, Subpart 202-2, “Emission Statements,” regulation described in the amendments to 40 CFR part 52 as discussed in Section I. of this preamble. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 2 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the State Implementation Plan, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);

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

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

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

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

• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the rule does not have Tribal implications and it 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, February 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 NYSDEC 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. The EPA did not perform an EJ analysis and did not consider EJ in this action. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the Stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 26, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

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

Table of Contents for Preamble I. Abbreviations II. Basis and Purpose A. The Problem We Seek To Address B. Legal Authority To Address This Problem C. Recent Legislation III. Background A. Origins of Annual Vessel Inspection Fees B. Current Fees for Towing Vessels Subject to 46 CFR Subchapters I and M IV. Discussion of Comments and Changes V. Discussion of the Rule A. Categories of Annual Fees B. Amending Annual Inspection Fees for Seagoing Towing Vessels Subject to 46 CFR Subchapter I C. Establishing Specific Annual Inspection Fees for Towing Vessels Subject to 46 CFR Subchapter M D. Methodology for Calculating Fees VI. Regulatory Analyses A. Regulatory Planning and Review B. Small Entities C. Assistance for Small Entities D. Collection of Information E. Federalism F. Unfunded Mandates G. Taking of Private Property H. Civil Justice Reform I. Protection of Children J. Indian Tribal Governments K. Energy Effects L. Technical Standards M. Environment I. Abbreviations ACP Alternate Compliance Program CAA 2022 Consolidated Appropriations Act of 2022 CGAA 2018 Frank LoBiondo Coast Guard Authorization Act of 2018 CG-CVC Office of Commercial Vessel Compliance COI Certificate of Inspection DAPI Drug and Alcohol Program Inspector DHS Department of Homeland Security FR Federal Register FRFA Final Regulatory Flexibility Analysis FTE Full-Time Equivalent ICR Information Collection Request IRFA Initial Regulatory Flexibility Analysis MISLE Marine Information for Safety and Law Enforcement MTSA Maritime Transportation Security Act NAICS North American Industry Classification System NPRM Notice of proposed rulemaking OMB Office of Management and Budget RFA Regulatory Flexibility Act SBA Small Business Administration § Section SIP Streamlined Inspection Program SSM Sector Staffing Model TSMS Towing Safety Management System TVNCOE Towing Vessel National Center of Expertise U.S.C. United States Code II. Basis and Purpose

In this section, the Coast Guard identifies the problem we intend to address, the well-established statutory authority that enables us to issue this final rule, and the recent legislation that provides additional authority for this rulemaking.

On June 20, 2016, the Coast Guard published a final rule titled “Inspection of Towing Vessels” (81 FR 40003), in which we stated our plan to begin a rulemaking for annual inspection fees for towing vessels. The updated annual inspection fees in this final rule reflect the program's costs for two options for towing vessels to document compliance for obtaining a Certificate of Inspection (COI):  1 the Coast Guard option and the Towing Safety Management System (TSMS) option. 2 As indicated in the 2016 final rule, the existing default fee of $1,030 was identified as the annual inspection fee for towing vessels subject to 46 CFR subchapter M until new rates were established. The existing fee of $1,030 is found in 46 CFR 2.10-101 and applies to any inspected vessel not listed in table 2.10-101. 3

In addition to towing vessels subject to subchapter M that are required to obtain COIs, towing vessels that qualify as seagoing motor vessels (300 gross tons or more) are required to have COIs under regulations in 46 CFR, chapter I, subchapter I for cargo and miscellaneous vessels. 4 The Coast Guard set the annual inspection fee for these towing vessels at $2,915 in 1995, and this figure has never been updated. 5

On January 11, 2022, we published a notice of proposed rulemaking (NPRM) entitled “User Fees for Inspected Towing Vessels” (87 FR 1378). Having considered comments submitted in response to that NPRM, we are issuing this final rule to update inspection fees for subchapter M and I towing vessels.

The Coast Guard is issuing this final rule based on authority in Section 2110 of Title 46 of the United States Code (U.S.C.) (46 U.S.C. 2110), which has been delegated to the Commandant under Department of Homeland Security (DHS) Delegation No. 00170.1(II)(92), Revision 01.3. These provisions direct the Coast Guard to establish a fee or charge for inspections and related services described in 46 U.S.C. 2110(a)(1). Under the law, the Coast Guard is required to establish a fee for its inspection services that is fair and based on costs to the Government, the value to the recipient, and public interest. The law also requires that we review the costs of inspecting towing vessels for the Government using the Coast Guard option or a third-party option, and revise such fees if there is a difference.

On December 4, 2018, Congress enacted the Frank LoBiondo Coast Guard Authorization Act of 2018 (CGAA 2018). 6 Section 815 of the CGAA 2018 directs the Coast Guard to review and revise the fees for towing vessel inspections. First, the Coast Guard must compare the costs to the Government for towing vessel inspections performed by the Coast Guard and towing vessel inspections performed by a third party to determine if the costs are different. The Coast Guard interprets “costs to the Government” in Section 815(a) to mean the cost to the Coast Guard for providing inspection and related services to determine whether a vessel meets requirements to maintain its COI. If there is a difference in costs, Section 815 of the CGAA 2018 directs us to revise the fee we assess for such inspections to conform to 31 U.S.C. 9701, and to base the fee on the cost to the Government. We have conducted that comparison and determined that there is a difference in costs to the Government between the inspection options for towing vessels that involve a third party and for those that do not and will revise the fees for these inspections as a result.

On March 15, 2022, Congress enacted the Consolidated Appropriations Act of 2022 (CAA 2022). 7 Section 231 of the CAA 2022 prohibits the Coast Guard from charging inspection user fees for towing vessels using the TSMS option until the requirements of Section 815 of the CGAA 2018 are met. 8 Thus, the intent of this final rule is to meet those requirements of Section 815 of the CGAA 2018 by updating its inspection fees for its Alternate Compliance Program (ACP), Streamlined Inspection Program (SIP), and the TSMS option. Until the Coast Guard implements this final rule and updates to the inspection fees become effective, our agency will not charge TSMS option towing vessels an inspection user fee.

The provisions of 46 U.S.C. 2110 require the establishment and collection of user fees for Coast Guard services provided under Subtitle II of Title 46, United States Code. On March 13, 1995, the Coast Guard published the final rule on “Direct User Fees for Inspection or Examination of U.S. and Foreign Commercial Vessels.”  9 The fees in that final rule were intended to recover the costs associated with providing Coast Guard vessel inspection services directly or through an alternative reinspection program, although the alternative reinspection program only applied to certain offshore supply vessels. The final rule established user fees for services related to commercial vessel inspection including annual fees for seagoing towing vessels.

On June 20, 2016, the Coast Guard published the “Inspection of Towing Vessels” final rule, in which we indicated that, in a subsequent rulemaking, we would establish specific fees that would reflect program costs associated with the TSMS and Coast Guard inspection options for obtaining COIs. We stated that until those specific fees were established, the annual inspection fee for towing vessels subject to 46 CFR subchapter M would be the existing fee of $1,030 in 46 CFR 2.10-101 for any inspected vessel not listed in table 2.10-101. 10

With the noted exception of towing vessels using the TSMS-option, the Coast Guard currently charges an annual vessel inspection fee for U.S. and foreign vessels requiring a COI, following the fee schedule set in 46 CFR 2.10-101. 11 The current fee for seagoing towing vessels inspected under subchapter I is $2,915 for all inspection options—the Coast Guard, the ACP, and the SIP. The current fee for towing vessels inspected under all inspection options under 46 CFR subchapter M is $1,030, which is the fee for “[a]ny vessel not listed in this table.” As stated above, TSMS fees are not currently being charged, and will not be charged until this final rule is published.

In response to the NPRM we published January 11, 2022, we received 13 written submissions (plus one duplicate) to our docket. In total, there are 35 comments in response to the proposed rule. These written submissions are available in the public docket for this rulemaking, where indicated under ADDRESSES or use the direct link https://www.regulations.gov/docket/USCG-2018-0538. The Coast Guard appreciates the comments from the public, as these insights continue to inform Coast Guard actions and programs. Below we summarize the comments and our responses.

The Coast Guard received a number of comments about the proposed fees. Some commenters stated that the proposed fees provided no incentive for choosing the TSMS option, and that the TSMS user fee was unfair due to the third-party costs associated with that option. Some commenters said that the TSMS option offers increased safety, which actually reduces the Coast Guard burden, so this should lead to lower fees. Several commenters requested that the Coast Guard option user fee remain $1,030. One commenter recommended a reduction of the user fees for both TSMS option vessels and Coast Guard option vessels.

After considering these comments, we retain the user fees proposed in the NPRM for this final rule. Our reasons are as follows. The law requires the Coast Guard to establish a fee for its inspection services and the fees must be fair and based on the costs to the Government, value to the recipient, and public interest. See 31 U.S.C. 9701. In addition, Section 815 of the CGAA 2018 requires the Coast Guard to review the costs to the Government of Coast Guard and third-party inspections for towing vessels. If there is a difference in the costs to the Government, we must revise the annual inspection fees set by the Coast Guard for towing vessels. To revise the fees, we must comply with the same fee-establishing requirements in 31 U.S.C. 9701. The user fee amounts we set are based on the direct and indirect costs for the Coast Guard to perform specific vessel inspection activities. The “Cost Study to Determine User Fees for Inspected Towing Vessels,” available in the docket where indicated under the ADDRESSES section of this preamble, explains in detail how we determine direct and indirect costs and calculate user fees. In developing the Cost Study, Coast Guard program, budget, and field offices  12 specified the cost model elements, provided the data sources, and validated the methodology used to determine towing vessel user fees, as well as the study results.

Furthermore, the user fees vary because the frequency of inspections and the times for inspection activities vary based on vessel class and inspection option. Selecting the TSMS or Coast Guard inspection option is a business decision by the vessel owner or operator.

Currently, owners and operators of about 70 percent of subchapter M inspected towing vessels with a COI have chosen the TSMS option while 30 percent of COIs for subchapter M inspected towing vessels are issued under the traditional Coast Guard option. This number has not substantially changed since the implementation of the 2016 “Inspection of Towing Vessels” final rule and the first COIs were issued in 2017. The user fees for the TSMS option account for the cost to the Government to provide inspections services for this vessel class and inspection option. A vessel owner or operator who selects the TSMS option is making a business decision that should account for the cost to contract with a third-party organization. For these reasons, there are no changes to the final rule in response to the comments on the proposed fees.

Several commenters stated that the Cost Study is flawed. We received comments indicating that the fees are duplicative, excessive, do not accurately reflect the Coast Guard workload, and do not represent the commenters' observed experience.

The Coast Guard disagrees. The fees we proposed for the Coast Guard option and TSMS option accurately estimate the cost to the Government to provide our inspection services. The Cost Study explains how we determine direct and indirect costs. We derive the user fee from the cost to the Coast Guard to perform a specific set of vessel inspection activities. The time it takes to perform any specific inspection activity includes more than just the observed time or “boots on deck” time on a vessel. A typical inspection involves pre-inspection activities (for example, identifying vessel type, safety requirements, and vessel history), in-person assessment activities (for example, verifying the integrity of vessel's hull and presence of appropriate safety equipment, and assessing proper operation of electrical and mechanical equipment), and follow-up activities (for example, reporting identified deficiencies, updating vessel data into the Coast Guard's Coast Guard's Marine Information for Safety and Law Enforcement (MISLE) system, and verifying deficiency rectification).

The Coast Guard periodically validates the duration of these vessel inspection activity times. Concurrent inspection activities are allocated less time than the primary inspection activities because concurrent inspection activities are conducted together. Additionally, unlike primary inspection activities, concurrent inspection activities are not allocated travel time credit. Because the time for primary inspection activities is recorded and allocated differently from concurrent inspection activities, such concurrent inspection charges are not redundant. For these reasons, the Coast Guard is maintaining its reliance on the Cost Study in this area. As such, there is no change to this final rule based on these comments.

One commenter stated that the Coast Guard has not yet determined the time and resources necessary for the COI renewal process.

The Coast Guard disagrees. As stated above, the Cost Study explains how we determine direct and indirect costs. The fees we proposed for the Coast Guard option and TSMS option accurately estimate the cost to the Government to provide our inspection services. For this reason, we have made no changes from the proposed rule in response to this comment.

Several commenters stated that the proposed fees impose a financial hardship or burden on small business due to the state of the economy, and that the Coast Guard should defer imposition of fees until we study the costs further.

In accordance with 46 U.S.C. 2110, the Coast Guard is required to establish a fee for its inspection services that is fair and based on the costs to the Government, value to the recipient, and public interest. The proposed user fees were developed in accordance with law, and further delay or study is unnecessary. For this reason, we have made no changes from the proposed rule in response to these comments.

One commenter stated that in not applying the inflation factor, the proposed fees result in a significant increase in annual Government revenues from user fees. The commenter said that for the TSMS option, the current user fee of $1,030 should be increased by the inflation factor of 1.58, and then divided by 5 to account for the 5-year period between inspections and adjusted for the minimal periods of oversight.

The Coast Guard disagrees. We did not adjust the user fee for towing vessels by an inflation factor since the previous user fee was not specific to subchapter M towing vessels and did not reflect the costs to the Coast Guard for performing inspections on towing vessels. The user fee of $1,030 in Table 2.10-101 is for inspections on “[a]ny inspected vessel not listed in this table.” The TSMS option user fee in this rule is based on the costs to the Government to provide inspection services. For these reasons, we have made no changes from the proposed rule in response to this comment.

One commenter stated that an inspection visit resulted in lost revenue from a potential barge move.

Lost revenue due to inspections is not within the scope of this rulemaking. In 2004, Congress determined that towing vessels are to be subject to inspection, resulting in the 2016 “Inspection of Towing Vessels” final rule. The costs, including lost revenue, were considered in that rulemaking and its accompanying regulatory analysis. For this reason, we have made no changes from the proposed rule in response to this comment.

A commenter stated that this rule fails to acknowledge those towing vessels on any water that are more than 15 gross tons and carrying cargo for hire. The commenter said those vessels would also fall under subchapter I and they should be addressed in this rulemaking.

The Coast Guard disagrees. Every request for inspection submitted is reviewed on a case-by-case basis. Per 46 CFR 2.01-7, Table 2.01-7(a), a vessel inspected under subchapter I includes “[a]ll vessels >15 gross tons carrying freight-for-hire[.]” However, any vessel that is (1) more than 15 gross tons but less than 300 gross tons and (2) towing and also carrying cargo for hire on board the vessel separate from the tow, would be considered for a multi-service vessel certification. A vessel certificated for more than one service is already covered under 46 CFR 2.10-101. The owner or operator of the vessel must pay only the higher of the two applicable fees. For this reason, we have made no changes from the proposed rule in response to this comment.

Another commenter stated that audits by Drug and Alcohol Program Inspectors (DAPI) and Maritime Transportation Security Act (MTSA) verifications should be removed from the Cost Study because they are not derived from the requirements of subchapter M.

The Coast Guard disagrees. The Coast Guard included DAPI audits (46 CFR 16.401) and MTSA verifications (46 CFR 140.660) in the Cost Study because compliance with these requirements must be met prior to the Coast Guard issuing a COI, regardless of the vessel inspection option chosen. For this reason, we have made no changes from the proposed rule in response to this comment.

One commenter stated that two categories of indirect costs are not appropriate in an assessment of agency costs to provide towing vessel inspection services: (1) policy and oversight costs, and (2) facility overhead and support costs. The commenter further stated that the operating and personnel costs of billets for staff at the Towing Vessel National Center of Expertise (TVNCOE) and Coast Guard District, Area, and Headquarters predate the publication and implementation of subchapter M. The commenter also stated that they were unaware of any new facilities or Coast Guard units that have been created for the purpose of providing towing vessel inspection services or, more broadly, implementing and enforcing subchapter M. The commenter recommended eliminating the policy and oversight costs, and facility overhead and support costs.

The Coast Guard disagrees. Policy and oversight activities are an essential element to ensure consistent application of nationwide towing vessel inspection requirements. Facility overhead and support costs are included to fairly account for the cost to the Government to provide inspection services. Historically, operating and overhead costs have been included in vessel inspection user fees, as well as other Coast Guard user fees such as merchant mariner credentialing and vessel documentation. For these reasons, we have made no changes from the proposed rule in response to this comment.

This final rule updates existing annual inspection fees for both seagoing towing vessels (300 gross tons or more) and vessels subject to the towing-vessel regulations in 46 CFR, subchapter M issued in 2016.

The annual inspection fees are located in 46 CFR part 2—Vessel Inspections. In addition to the fees in § 2.10-101, this part contains definitions in § 2.10-25. We are adding the following new defined terms to § 2.10-25:

• Alternate Compliance Program option;

• Annual vessel inspection fee;

• Coast Guard option;

• Streamlined Inspection Program option;

• Towing Safety Management System option; and

• Towing vessel.

We define annual vessel inspection fee as the fee charged by the Coast Guard for providing inspection and related services to determine whether a vessel meets the requirements to maintain its COI. The fee charged by the Coast Guard reflects the cost to the Coast Guard. There are several existing options for inspection, which we define in revised § 2.10-25 by referencing the regulations that establish each option. For both seagoing and subchapter M towing vessels, there is a Coast Guard option in which the Coast Guard performs all the relevant inspection activity. For both types of vessels, there is also a third-party option, already established in regulation, in which a third party performs some of the relevant activity, but the Coast Guard still inspects the vessel and examines evidence of compliance provided by third parties.

For seagoing towing vessels there is an additional option, the SIP. The SIP option does not involve a third party. Under the SIP option, a vessel is inspected in accordance with an approved Vessel Action Plan that the company's SIP agent develops with guidance from the Coast Guard. In our definition of SIP, we point to subpart E of 46 CFR part 8, which spells out SIP program requirements.

We define towing vessel as a commercial vessel engaged in or intending to engage in the service of pulling, pushing, or hauling alongside, or any combination of pulling, pushing, or hauling alongside.

We are also modifying the definition of an existing term in § 2.10-25, Sea-going towing vessel. We are removing the modifier “seagoing” from the definition itself and inserting a description of what seagoing means. The inserted description is “and that makes voyages beyond the Boundary Line as defined by 46 U.S.C. 103.”  13 The vessel must be 300 gross tons or more, to distinguish seagoing towing vessels from towing vessels subject to subchapter M that travel beyond the Boundary Line. We also remove the hyphen from seagoing.

For towing vessels subject to 46 CFR subchapter M, we added two categories of fees: the Coast Guard option and the TSMS option. For seagoing towing vessels subject to 46 CFR subchapter I, we develop three fee categories: the Coast Guard option, the ACP option, and the SIP option. This fee structure helps to ensure the Coast Guard is able to recover full costs to the Government and to separate annual inspection fees for options involving third-party surveys and audits of towing vessels using safety management systems.

We will be charging one of three annual fees for seagoing towing vessels that are inspected under subchapter I:

• $2,747 for those using the Coast Guard option;

• $1,850 for those using the ACP option; and

• $2,260 for those using the SIP option.

The previous annual fee for seagoing towing vessels that are inspected under subchapter I was $2,915.

For a detailed discussion of how these fees were derived, see Methodology for Calculating Fees in section V.D of this preamble.

We will also be charging one of two fees for towing vessels inspected under subchapter M:

• $2,184 for those using the Coast Guard option, and

• $973 for those using the TSMS option.

The previous annual fee applied to subchapter M towing vessels was $1,030.

For a more detailed discussion of how these fees were derived, see Methodology for Calculating Fees in section V.D of this preamble.

This section summarizes the methodology for calculating fees. For more details, see the Cost Study  14 in the docket where indicated under the ADDRESSES section of this preamble.

To derive the costs of the various inspection types, we used an activity-based costing  15 approach in conjunction with the Sector Staffing Model (SSM). The SSM is an activity-based model designed to establish human capital requirements and quantify resources at Shore Forces units. 16 The SSM measures specific activity and frequency to determine the Full-Time Equivalent (FTE) workforce needed to meet a particular workload. Data in the model is derived from Coast Guard enterprise databases and surveys conducted at the Coast Guard field unit level. The model also incorporates unit specific travel times for conducting missions, collateral duty workload, and mission required training. In Spring 2012, the SSM was accredited in accordance with official Coast Guard policy and currently serves as the primary decision tool for managing sector enterprise staffing. Table 1 shows the cost of activities for providing COI services to each type of inspection. These costs are derived using SSM FTE calculations; see the Cost Study in the docket for the full derivation of figures.

The Coast Guard intends to collect one of five different user fees from the approximately 4,762 towing vessels that require COIs under subchapters I and M. 18 Table 2 shows the fee charged before the CAA 2022 went into effect, the CAA 2022 fee, the final rule fee, the incremental fee adjustment from the CAA 2022 fee, and the percent change to the user fee from the CAA 2022 fee. 19 The annual cost of services for each vessel class is the final rule user fee for that vessel class.

We developed this final rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on these statutes or Executive orders.

Executive Orders 12866 (Regulatory Planning and Review), as amended by Executive Order 14094 (Modernizing Regulatory Review) and 13563 (Improving Regulation and Regulatory Review) 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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866, as amended by Executive Order 14094. This rule has not been reviewed by OMB. A regulatory analysis follows.

This final rule's regulatory analysis has made two changes from the NPRM we published in 2022 (87 FR 1378), but the user fees are not changed from the NPRM's rates. First, we updated the populations to reflect current data from MISLE; the subchapter M population decreased while the subchapter I population remained relatively stable.

Second, the baseline for TSMS fees under subchapter M decreased from $1,030 to $0. This is because the CAA 2022 directed the Coast Guard not to charge user fees to TSMS vessels under subchapter M until it follows the steps in Section 815 of the CGAA 2018, and based on its findings reported above, revises its fees. This rule will revise those fees effective March 27, 2024.

Currently, towing vessels are inspected under subchapter I or subchapter M, dependent on their size and area of operation. Owners and operators of towing vessels inspected under 46 CFR subchapter I pay a user fee of $2,915 annually. Owners and operators of towing vessels under 46 CFR subchapter M that choose to be inspected by the Coast Guard pay a user fee of $1,030 annually. Owners and operators of towing vessels under subchapter M that choose the TSMS option do not pay a user fee because of the CAA 2022. However, as noted earlier, the subchapter M user fee is not specific to towing vessels; rather it is for all inspected vessels that do not have a specific user fee on Table 2.10-101. Prior to the CAA 2022 owners and operators of towing vessels under subchapter M that choose the TSMS option paid a user fee of $1,030 annually.

Under the current CAA 2022 baseline, we calculate that owners and operators of 43 towing vessels inspected under subchapter I pay $125,345 annually, and that owners and operators of 4,719 towing vessels inspected under subchapter M pay $1,458,480 annually for inspection services, respectively. Thus, the current transfer from vessel owners to the Coast Guard for towing vessel inspection services is $1,583,825 annually. Prior to the CAA 2022, when the TSMS user fee was not suspended, owners and operators of all subchapter M towing vessels (TSMS option and Coast Guard option) paid the $1,030 user fee. This would have resulted in an annual transfer from subchapter M and I vessel owners and operators to the Coast Guard for towing vessel inspection services of $4,985,915. Owners and operators of towing vessels choose between several vessel inspection alternatives. Once selected, the inspection option is unlikely to change due to a change in user fees, since there are private business costs associated with changing inspection options. The Coast Guard's COI service costs are fully funded through annual appropriations. 20

This final rule establishes a user fee specific to towing vessels under subchapter M, revises the user fee specific to towing vessels under subchapter I, and establishes user fees for alternatives for vessel inspection that require fewer Coast Guard inspection activities or that take less time and thus have a lower cost to the Coast Guard. This updated structure for user fees will help to ensure the Coast Guard's ability to offset costs to the Government, and to separate annual inspection fees for options involving third-party surveys and audits of towing vessels using safety management systems. From a baseline of the CAA 2022, this final rule results in an estimated $4.8 million annual transfer payment from owners and operators of towing vessels to the Federal Government for COI services. The 10-year transfers, undiscounted, are $49,320,822. The discounted annualized figure, at 7 percent, is $4,918,994. The discounted annualized figure, at 3 percent, is $4,926,329.

The Coast Guard also does the following in this final rule:

(1) Modifies the definition in § 2.10-25 of Sea-going towing vessel. We remove the modifier “seagoing” from the definition and replace it with a description of what “seagoing” means. The updated language is “and that makes voyages beyond the Boundary Line as defined by 46 U.S.C. 103.” Also, we specify that the vessel must be 300 gross tons or more to distinguish seagoing towing vessels from towing vessels that travel beyond the Boundary Line, which may be subject to subchapter M. This is an administrative change, and it would have no economic impact.

(2) Amends the user fees for towing vessels under 46 CFR subchapter I. The current fee for the 43 seagoing towing vessels inspected under subchapter I is $2,915 for all inspection options (Coast Guard, ACP, and SIP). This final rule makes the fees specific to each inspection as shown below in table 3. Owners and operators of vessels have already chosen their inspection option and are unlikely to change their current option. This is because there are costs associated with switching inspection options and there are transactions in private industry and business-specific costs  21 beyond the inspection cost that make the user fee a small portion of the overall cost of inspections.

(3) Creates a specific user fee category for the 4,719 towing vessels subject to 46 CFR subchapter in the table of fees in § 2.10-101 and updates the current user fees for annual inspection fees for towing vessels to reflect the specific program costs associated with the two subchapter M options: the TSMS option and the Coast Guard inspection option. The Coast Guard inspection option's current annual fee is $1,030 for towing vessels subject to subchapter M. The existing fee of $1,030 is found in 46 CFR 2.10-101 and applies to any inspected vessel not listed in table 2.10-101. Owners and operators of subchapter M vessels that choose the TSMS inspection option do not currently pay a user fee. This final rule makes the fees specific to each inspection type as shown below in table 4. Similar to owners and operators of subchapter I vessels, owners and operators of subchapter M vessels have already chosen their inspection option and are unlikely to change for the same reasons.

(4) Defines the following new terms added to the table of fees in § 2.10-101: Annual vessel inspection fee, Alternative Compliance Program option, Coast Guard option, Streamlined Inspection Program option, Towing Safety Management System option, and Towing vessel. This is an administrative change and has no economic impact. All these points are described in greater detail in the Cost Study.

To obtain the affected population for this final rule, we used the MISLE system. MISLE is the Coast Guard's vessel and marine activity database and contains the best and most readily available vessel population data. According to MISLE data as of 2023, the total affected population of this final rule is 4,762 inspected towing vessels. There are approximately 4,719 towing vessels that will require inspection under 46 CFR subchapter M and 43 towing vessels that are inspected under 46 CFR subchapter I. Coast Guard subject matter experts in the Office of Commercial Vessel Compliance (CG-CVC) estimate that the subchapter M population will increase by an average of 23 vessels per year because a number of subchapter M vessels began the inspection process to obtain a COI during the 4-year phase-in period but did not complete the process. The Coast Guard believes that, over time, these vessels will obtain new COIs; thus, the subchapter M population will increase. The subchapter I population is expected to remain stable because it historically has done so.

Rather than a single fee category for all towing vessels covered by a subchapter, the Coast Guard is creating two categories for subchapter M and three categories for subchapter I vessels. For subchapter M, the inspection types are the Coast Guard option and the TSMS option. For subchapter I, the inspection types are the Coast Guard option, the ACP option, and the SIP option. Table 5 presents the total population of inspected towing vessels impacted by this final rule and the current breakdown of inspections within each subchapter. Table 6 presents the projected subchapter M population and their projected counts of inspection type. We assume that the subchapter M towing vessel population will maintain their current split of 70 percent using the TSMS option and 30 percent using the Coast Guard option during the duration of the analysis.

This final rule does not impose any new societal costs because all the inspection activities are done by regulated entities and the Coast Guard. Instead, the impacts of this final rule are in the form of transfer payments, which are monetary payments from one group to another that do not affect the total resources available to society.

This final rule does not provide any quantitative benefits; however, revising user fees to reflect the actual cost for the Coast Guard to provide inspection services is a qualitative benefit. The result is a fairer distribution of costs to inspected towing vessels by inspection type. Section 2110 of Title 46 of the U.S.C. directs that the fee or charge be established in accordance with 31 U.S.C. 9701, which specifies that each charge be fair and based on the costs to the Government; the value of the service or thing to the recipient, public policy, or interest served; and other relevant facts. Consistent with these objectives, once a fee or charge is established, Section 2110 allows the fee or charge to be adjusted to accommodate changes in the cost of providing a specific service or thing of value. This final rule aids the Coast Guard in compliance with those statutory requirements.

This final rule adjusts the user fees collected from the current entities so that there are now five different fees based on the towing vessel subchapter and program used for vessel certification. There currently are 4,762 affected towing vessels. Table 7 shows the pre-CAA 2022 baseline fee, CAA 2022 baseline fee, the final rule fee, the change, and the percent change to the user fee from the pre-CAA 2022 and CAA 2022 baseline fees. The annual cost of services for each vessel class is the user fee for that vessel class.

In table 8, we show the total increase in annual transfer payments from each vessel class to the Government and the total increase for all vessels. For example, owners and operators of subchapter M vessels that choose the Coast Guard option will pay an additional $1,154 per vessel in user fees to the Coast Guard for inspection services. Negative numbers represent a decrease in user fees. Transfer payments are monetary payments from one group to another that do not affect total resources. For this final rule, a user fee is a transfer payment from the vessel's owner or operator to the Government to offset the costs to the Coast Guard for providing COI services. This is calculated by multiplying the vessel population by the incremental fee change. Because the population of 46 CFR subchapter M vessels is projected to increase, table 9 shows annual incremental transfer payments for this subchapter. Totals are calculated by multiplying the populations in table 6 by the appropriate fees.

The reduction in fees for owners and operators of vessels under 46 CFR subchapter I will result in a decrease in transfer payments in the first year from the subchapter I towing vessel industry to the Government of $22,063. Relative to the CAA 2022 baseline, the Coast Guard expects to have an increase in transfer payments from owners and operators of subchapter M towing vessels for the COI services of $4,847,883 in the first year to the Government. The net change in transfer payments is $4,825,820 in the first year. The 10-year transfer payments, undiscounted, total $49,320,822. The discounted annualized figure, at 7 percent, is $4,918,994.

Relative to the Pre-CAA 2022 baseline, the Coast Guard expects to have an increase in transfer payments from owners and operators of subchapter M towing vessels for the COI services of $1,445,793 in the first year to the Government as shown in table 9. The sum of transfer payments for vessels under subchapter I and M is $1,423,730 in the first year from the subchapter I towing vessel industry to the Government since subchapter I user fees are decreasing. The total 10-year change in transfer payments, undiscounted, is $14,550,082. The discounted annualized figure, at 7 percent, is $1,451,108. Table 10 summarizes the total 10-year change in transfer payments from the towing vessel industry to the Government.

Alternatives considered include adjusting our current user fees for inflation, updating only the Coast Guard option user fees, or continuing with the current user fees. Each of these options will be considered in the following discussion.

Under the first alternative, Coast Guard considered adjusting the 1995 user fees for inflation from 1995 dollars to 2022 dollars. To adjust for inflation, we use an inflation factor from the annual gross domestic product deflator data. 24 We calculate the inflation factor of 1.76 by dividing the annual 2022 index number (117.996) by the annual 1995 index number (66.993). We then multiply the current fees for 46 CFR subchapters I and M by the inflation factor and round it to the nearest dollar. If we simply adjusted the user fees for inflation, the annual fees charged under subchapters I and M would increase 76 percent, by $2,215 and $783, respectively. These fees, when multiplied by the number of annual COI renewals, would yield a total annual revenue of approximately $8.8 million and an increase in transfer payments of $3.8 million. We rejected this alternative because the annual revenue collected under this methodology would not reflect the full cost to the Coast Guard of providing the COI-related services. Table 11 shows the inflation adjusted user fees for subchapter I and M vessels.

This is a summary of the Commission's Report and Order ( May Report and Order ), in MD Docket Nos. 22-301 and 23-159, FCC 23-34, adopted on May 12, 2023, and released on May 15, 2023, as amended by the sua sponte technical corrections the Commission made to the language of 47 CFR 1.1166 and 1.1914 in the Commission's Report and Order, FCC 23-66, MD Docket Nos. 22-310 and 23-159, adopted and released on August 10, 2023 (August Report and Order), 88 FR 63694, (Sept. 15, 2023). The full text of the Commission's May Report and Order and August Report and Order are available for public inspection by downloading the text from the Commission's website at https://www.fcc.gov/licensing-databases/fees/regulatory-fees.

1. The Commission adopted amendments to 47 CFR 1.1166 and 1.1914 in the May Report and Order, and made technical corrections to the language of those rules in the August Report and Order, which may contain new or substantively modified information collection requirements subject to the PRA and new or modified information collection burdens for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). The amendments to 47 CFR 1.1166, as adopted in the May Report and Order, and as technically corrected in the August Report and Order, were approved by OMB on August 17, 2023, pursuant to the Paperwork Reduction Act, as non-substantive modifications to an information collection under the PRA. The effective date of the amended 47 CFR 1.1166 was October 16, 2023, which was 30 days after it was published in the Federal Register on September 15, 2023. The amendments to 47 CFR 1.1914 will not become effective until 30 days after publication of a document in the Federal Register announcing that the Office of Management and Budget has completed review of any information collection requirements that the Office of Managing Director determines are required under the Paperwork Reduction Act. The Commission will publish a document in the Federal Register announcing the effective date of the revisions to 47 CFR 1.1914.

2. The Commission will not send a copy of the May Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), because the adopted rule is a rule of agency organization, procedure, or practice that does not “substantially affect the right or obligations of non-agency parties.”

3. In the May Report and Order, the Commission codified several of the temporary measures it had implemented in FY 2020 through FY 2022 to permanently simplify and streamline the process for filing waiver, deferral, and reduction requests for regulatory fees and the process for filing installment payment requests for all debt owed to the Commission, including regulatory fee debt. Specifically, it amended 47 CFR 1.1166 and 1.1914 as follows: (i) parties seeking multiple forms of regulatory fee relief, including installment payment of their regulatory fees, may file a single pleading in which all requested relief is included; (ii) parties must submit their requests electronically to regfeerelief@fcc.gov; and (iii) parties seeking only installment payment relief to pay debt owed to the Commission, including regulatory fee debt, must submit such requests in writing, electronically to regfeerelief@fcc.gov. The Commission received many more requests for waiver, reduction, deferral, and installment payment relief in FYs 2020, 2021, and 2022 than it had received in previous years. As in other years, many of the requests were submitted by regulatory fee payors without the assistance of counsel. The Commission found that the procedural flexibility used during this time eased the Commission's administrative burden and thereby reduced administrative expenses of collection. The Commission made these changes without notice and comment because they are rules of agency organization, procedure, or practice exempt from the general notice-and-comment requirements of the Administrative Procedure Act.

4. On August 10, 2023, the Commission adopted the August Report and Order, which included sua sponte technical corrections to the amended language of 47 CFR 1.1166 and 1.1914. Specifically, the Commission deleted “or installment payment” in the introductory paragraph of 47 CFR 1.1166 and in 47 CFR 1.1166(a), made grammatical changes to move the word “or” twice, and deleted “and 1.1914” in 47 CFR 1.1166(a). The Commission also restored the following text (bolded) that was inadvertently deleted from 47 CFR 1.1166(a) in the May Report and Order: “All requests for waiver, reduction and deferral shall be acted upon by the Managing Director with the concurrence of the General Counsel.” The Commission also (1) modified the heading of section 1.1166 to delete “and installment payment” and to add “and” before the word “deferrals”; (2) revised the final sentence of the introductory paragraph of section 1.1166 to delete the phrase “interest charges or penalties”; and (3) revised section 1.1166(b) to delete a comma and the phrase “from the date of the filing of the deferral request”.

5. The Commission also made technical corrections to 47 CFR 1.1914 to clarify the language of the rule. Specifically, the third sentence of 47 CFR 1.1914(a) was revised to read as follows: “Requests for installment payment of non-regulatory fee debt shall be filed electronically, by submission to the following email address: installmentplanrequest@fcc.gov .” The Commission explained that it made this change to ensure that, for administrative simplicity purposes, installment payment requests that are non-regulatory fee in nature are submitted to a different email address than the email address to which all regulatory fee relief requests, including for installment payment of regulatory fees, are to be submitted. The Commission also revised the fourth sentence of 47 CFR 1.1914(a) to more clearly state that requests for installment payment of regulatory fees may be combined with other regulatory fee relief requests that are filed pursuant to 47 CFR 1.1166. Additionally, the Commission revised the fifth sentence of section 1.1914(a) to delete the phrase “their debt to the Commission.” Further, the Commission stated that the amendments to 47 CFR 1.1914 in the May Report and Order will continue as temporary measures until such time as they become effective.

6. On August 17, 2023, OMB approved the amendments to 47 CFR 1.1166, including the technical language corrections the Commission made in the August Report and Order. On September 15, 2023, the August Report and Order was published in the Federal Register , including 47 CFR 1.1166 and 1.1914, as fully amended and technically corrected. The effective date of 47 CFR 1.1166 was October 16, 2023, which was 30 days after it was published in the Federal Register . The Commission will publish a document in the Federal Register to announce the effective date for the revisions to 47 CFR 1.1914, once OMB has approved the rule.

7. Accordingly, it is ordered that, pursuant to sections 4(i), 4(j), 9, 9A, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 159, 159a, 303(r), this May Report and Order is hereby adopted.

8. It is further ordered that the amendments to section 1.1914 of the Commission's rules, 47 CFR 1.1914, which were technically corrected by the Commission on August 10, 2023, WILL BECOME EFFECTIVE 30 days after publication of a document in the Federal Register announcing that the Office of Management and Budget has completed review of any information collection requirements that the Office of Managing Director determines as required under the Paperwork Reduction Act. The Commission will publish a document in the Federal Register announcing the effective date of the amendments to 47 CFR 1.1914. The amendments to section 1.1166 of the Commission's rules, 47 CFR 1.1166, which were technically corrected by the Commission on August 10, 2023, and approved by the Office of Management and Budget, pursuant to the Paperwork Reduction Act, on August 17, 2023, became effective on October 16, 2023.

This document announces that, on December 5, 2023, OMB approved the information collection requirements contained in §§ 74.790(o)(9) and 74.790(o)(10) of the Commission's rules. The OMB Control Numbers are 3060-0110, 3060-0214, and 3060-0386. The Commission publishes this document as an announcement of the effective date of these rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Cathy Williams, Federal Communications Commission, Room 3-317, 45 L Street NE, Washington, DC 20554. Please include the OMB Control Number, 3060-0110, or 3060-0214, or 3060-0386, in your correspondence. The Commission will also accept your comments via email at PRA@fcc.gov .

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

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received final OMB approval on December 5, 2023, for the information collection requirements contained in §§ 74.790(o)(9) and 74.790(o)(10) of the Commission's rules.

Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number.

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

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-0110.

OMB Approval Date: December 5, 2023.

OMB Expiration Date: December 31, 2026.

Title: FCC Form 2100, Application for Renewal of Broadcast Station License, LMS Schedule 303-S.

Form Number: FCC 2100, LMS Schedule 303-S.

Respondents: Business or other for-profit entities; Not for profit institutions; State, Local or Tribal Governments.

Number of Respondents and Responses: 5,140 respondents, 5,140 responses.

Estimated Time per Response: 0.5 hours-12 hours.

Frequency of Response: On occasion reporting requirement; Every eight-year reporting requirement; Third party disclosure requirement.

Total Annual Burden: 14,868 hours.

Total Annual Costs: $3,994,164.

Obligation of Response: Required to obtain or retain benefits. The statutory authority for the collection is contained sections 154(i), 303, 307 and 308 of the Communications Act of 1934, as amended, and section 204 of the Telecommunications Act of 1996.

Needs and Uses: On July 20, 2023, the Commission adopted Amendment of Parts 73 and 74 of the Commission's Rules to Establish Rules for Digital Low Power Television and Television Translator Stations, Fifth Report and Order, FCC 23-58 (rel. July 20, 2023) (FM6 Report and Order). The Commission adopted a new requirement that FM6 LPTV stations certify in their license renewal application that they have continued to provide FM6 operations in accordance with the FM6 rules during their prior license term. The Commission delegated authority to the Media Bureau to determine the most appropriate means for these stations to make such certification, be it by an attachment to the renewal application or some other reasonable means. This requirement is contained in 47 CFR 74.790(o)(10).

This submission is being made to the Office of Management and Budget (OMB) for approval of the renewal certification requirement for FM6 LPTV stations as adopted in the FM6 Report and Order. Since the certification will be included as an additional exhibit to the existing form, it did not necessitate changes to LMS Form 2100 Schedule 303-S.

OMB Control Number: 3060-0214.

OMB Approval Date: December 5, 2023.

OMB Expiration Date: December 31, 2026.

Title: Sections 73.3526 and 73.3527, Local Public Inspection Files; Sections 73.1212, 76.1701 and 73.1943, Political Files.

Form Number: N/A.

Respondents: Business or other for profit entities; Not for profit institutions; State, Local or Tribal government; Individuals or households.

Number of Respondents: 23,819 respondents; 66,392 responses.

Estimated Time per Response: 1-52 hours.

Frequency of Response: On occasion reporting requirement, Recordkeeping requirement, Third party disclosure requirement.

Obligation To Respond: Required to obtain or retain benefits. Statutory authority for these collections is contained in sections 151, 152, 154(i), 303, 307, 308, and 315 of the Communications Act of 1934, as amended.

Total Annual Burden: 2,065,841 hours.

Total Annual Cost: No cost.

Needs and Uses: On July 20, 2023, the Commission adopted Amendment of Parts 73 and 74 of the Commission's Rules to Establish Rules for Digital Low Power Television and Television Translator Stations, Fifth Report and Order, FCC 23-58 (rel. July 20, 2023) (FM6 Report and Order). The Commission adopted a new requirement that FM6 LPTV stations maintain a public inspection file similar to the requirement in the rule for FM radio stations. This submission is being made to the Office of Management and Budget (OMB) for approval of the local public inspection file requirement for FM6 LPTV stations as adopted in the FM6 Report and Order. This requirement is contained in 47 CFR 73.3526.

OMB Control No.: 3060-0386.

Title: Special Temporary Authorization (STA) Requests; Notifications; and Informal Filings; Sections 1.5, 73.1615, 73.1635, 73.1740 and 73.3598; CDBS Informal Forms; Section 74.788; Low Power Television, TV Translator and Class A Television Digital Transition Notifications; Section 73.3700(b)(5), Post Auction Licensing; Section 73.3700(f).

Form No.: None.

Respondents: Business or other for-profit entities; Not for profit institutions; State, local or Tribal government.

Number of Respondents and Responses: 5,537 respondents and 5,537 responses.

Estimated Time per Response: 0.50-4.0 hours.

Frequency of Response: One-time reporting requirement and on occasion reporting requirement.

Obligation To Respond: Required to obtain or retain benefits. The statutory authority for this collection is contained in 47 U.S.C. 151, 154(i), 157 and 309(j) as amended; Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112-96, 6402 (codified at 47 U.S.C. 309(j)(8)(G)), 6403 (codified at 47 U.S.C. 1452), 126 Stat. 156 (2012) (Spectrum Act); and sections 1, 4(i) and (j), 7, 301, 302, 303, 307, 308, 309, 312, 316, 318, 319, 324, 325, 336, and 337 of the Communications Act of 1934, as amended.

Total Annual Burden: 4,353 hours.

Annual Cost Burden: $1,834,210.

Needs and Uses: On July 20, 2023, the Commission adopted Amendment of Parts 73 and 74 of the Commission's Rules to Establish Rules for Digital Low Power Television and Television Translator Stations, Fifth Report and Order, FCC 23-58 (rel. July 20, 2023) (FM6 Report and Order). The Commission adopted a one-time requirement that FM6 LPTV stations notify the Media Bureau via letter filing as to whether they will continue FM6 operations and confirm their precise FM6 operational parameters. In addition, in the FM6 Report and Order, the Commission adopted a rule, 47 CFR 74.790(o)(9) that requires FM6 LPTV stations that are permanently discontinuing their FM6 operations to notify the Commission pursuant to section 73.1750 of the rules. This submission is being made to the Office of Management and Budget (OMB) for approval of the one-time letter notification and discontinuation of operations notification requirements for FM6 LPTV stations as adopted in the FM6 Report and Order.

Executive Summary

Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et seq. ), a species warrants listing if it meets the definition of an endangered species (in danger of extinction throughout all or a significant portion of its range) or a threatened species (likely to become endangered within the foreseeable future throughout all or a significant portion of its range). If we determine that a species warrants listing, we must list the species promptly and designate the species' critical habitat to the maximum extent prudent and determinable. We have determined that the black-capped petrel meets the Act's definition of an endangered species; therefore, we are listing it as such. Listing a species as an endangered or threatened 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 lists the black-capped petrel ( Pterodroma hasitata ) as an endangered species under the Act.

The basis for our action. Under the Act, we may determine that a species is an endangered 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. We have determined that the black-capped petrel is an endangered species due to the following threats: habitat loss due to deforestation and forest fires (Factor A) and predation by nonnative mammals (Factor C). Other factors that affect the species now to a lesser degree or could affect the species in the future include development (Factor A), offshore oil and gas infrastructure and activities (Factor E), offshore and coastal wind energy infrastructure and activities (Factor E), collisions with communication towers (Factor E), and disorientation and grounding due to artificial lighting (Factor E). The effects of climate change are also expected to affect the species through increased storm intensity and frequency, resulting in flooding of burrows and erosion of suitable nesting habitat (Factor E). Historically, human predation for consumption (Factor B) and natural disasters (Factor E), such as earthquakes and volcanic eruptions, affected the viability of the species.

On October 9, 2018, we published in the Federal Register (83 FR 50560) a proposed rule to list the black-capped petrel as a threatened species with a rule issued under section 4(d) of the Act. Please refer to that proposed rule for a detailed description of previous Federal actions concerning this species.

On May 2, 2023, we published in the Federal Register (88 FR 27427) a document reopening the comment period on the October 9, 2018, proposed rule as a result of significant new information we received after the publication of the 2018 proposal that is relevant to our consideration of the status of the black-capped petrel. That document described the new information and requested comments on it, as well as on all other aspects of our proposal to list the black-capped petrel.

A species status assessment (SSA) team prepared an SSA report for the black-capped petrel. The SSA team was composed of Service biologists, in consultation with other black-capped petrel experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting 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 of listing actions under the Act, we solicited independent scientific review of the information contained in the 2018 black-capped petrel SSA report. We sent the 2018 SSA report to three independent peer reviewers and received responses from all three; we incorporated the results of that review into the SSA report, as appropriate. More recently, we solicited independent scientific review of the 2023 black-capped petrel SSA report. We sent the 2023 SSA report to five peer reviewers and received responses from three; we incorporated the results of the peer review into the 2023 SSA report, as appropriate. The peer reviews can be found at https://www.regulations.gov . In preparing the proposed rule and this final rule, we incorporated the results of these reviews, as appropriate, into the SSA report, which was the foundation for the proposed rule (version 1.1, Service 2018) and this final rule (version 1.3, Service 2023).

We considered all relevant substantive comments we received on the October 9, 2018, proposed rule, and we incorporate new information into this final rule that was not available when the proposed rule published. We discussed the new information in the document we published on May 2, 2023 (88 FR 27427); that document made the new information available to the public and reopened the comment period on the proposed listing of the black-capped petrel.

After reviewing the new information we made available in the document we published on May 2, 2023 (88 FR 27427), we have determined that the black-capped petrel meets the Act's definition of an endangered species. Information provided during the public comment periods on the October 9, 2018, proposed rule and new science made available after the proposal's publication in 2018 provided additional data that were analyzed and considered in the updated SSA report (version 1.3, Service 2023). The new information demonstrates that the threats acting on the species are more imminent, thus indicating a lower overall viability, i.e., current condition, of the species.

Updated habitat suitability models indicate there is 70 percent less available nesting habitat than was calculated for the October 9, 2018, proposed rule (Satgé et al. 2021, entire). Additionally, the loss of primary forests on Haiti is accelerating at a greater rate than previously described (Hedges et al. 2018, entire).

In this rule, we also provide updated information on the conditions of nesting areas on Hispaniola and the more rapid declines in nesting activity and reproductive success than were described in the October 9, 2018, proposed rule. Further, we present information that shows the nesting population of the Pic Macaya, Haiti, area is now extirpated.

We have new information on the threats acting on the species on Hispaniola, including more documented occurrences of predation by nonnative species; impending development near Pedernales, Dominican Republic; and terrestrial mining of rare earth minerals (Service 2023, pp. 60-61). These threats are contributing to a reduction in the resiliency of the nesting populations on Hispaniola.

New information gathered and evaluated since the publication of the October 9, 2018, proposed rule includes confirmed occurrences of black-capped petrels in the northern Gulf of Mexico, which extends the known range to include the northern Gulf of Mexico (Jodice et al. 2021, entire). In addition, recent records of individual black-capped petrels in the central and northeastern Gulf of Mexico show greater use of this marine region by the species than was previously documented, resulting in a larger range than previously described (Jodice et al. 2021, entire). Further, recent satellite tracking studies of individual black-capped petrels identified near-shore areas off the northern coast of Central and South America as areas where the species forages during the breeding season, and these areas may have previously been overlooked or underestimated (Leopold et al. 2019, entire).

Additionally, in the October 9, 2018, proposed listing rule, we determined the designation of critical habitat for the species to be not prudent. After considering public comments we received, new information on the threats acting on the black-capped petrel at sea, and our regulations at 50 CFR 424.12(a) regarding when the Secretary of the Interior (Secretary) may, but is not required to, determine that a critical habitat designation would not be prudent (see 84 FR 45020; August 27, 2019), we now find that designating critical habitat for the black-capped petrel is prudent, but not determinable at this time. Critical habitat is not determinable because the data sufficient to perform the required consideration of economic impacts are lacking at this time.

Finally, since we are listing the black-capped petrel as an endangered species, the rulemaking process to establish regulations that are necessary and advisable to provide for the conservation of a threatened species under section 4(d) of the Act no longer applies. When a species is listed as an endangered species, protections are automatically extended to that species under section 9 of the Act.

In our October 9, 2018, proposed rule (83 FR 50560), we requested that all interested parties submit written comments on the proposal by December 10, 2018. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the Primera Hora (Puerto Rico), and Virginia Pilot (Virginia-Carolinas). We did not receive any requests for a public hearing. Later, on May 2, 2023, we published in the Federal Register (88 FR 27427) a document reopening the proposed rule's comment period and providing new information received since the publication of the proposed rule. We published this document to allow the public the opportunity to review the new information and provide comments prior to our final determination on the proposed action. We requested comments to be submitted on the new information by June 1, 2023. All substantive information received during both comment periods has been incorporated directly into the SSA report or this final determination, or is addressed below.

As discussed above under Peer Review, peer reviewer comments were incorporated into version 1.1 of the SSA report as appropriate, which served as the foundation for the October 9, 2018, proposed rule (83 FR 50560).

After revising version 1.1 of the SSA report to include new information, we provided version 1.3 of the SSA report to five independent peer reviewers and received responses from three. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the information contained in version 1.3 of the SSA report.

The peer reviewers generally concurred with our methods and conclusions and provided support for thorough and descriptive narratives of assessed issues, additional information, clarifications, and suggestions to improve the final SSA report. Peer reviewer comments are incorporated into version 1.3 of the SSA report (Service 2023, entire) and addressed below.

(1) Comment: One peer reviewer provided input regarding an increased risk from activities associated with offshore wind energy development in the Central Atlantic, as more areas have been proposed for offshore wind energy development. The peer reviewer stated there are several areas off the coast of North Carolina and Virginia, if developed, that would pose substantial collision risks to the petrels that may use this area outside the breeding season.

Our response: Impacts of wind energy development and infrastructure were included in the SSA report (version 1.3, Service 2023) and considered in the evaluation for this final listing rule.

(2) Comment: One peer reviewer sought clarification regarding the definition of the exclusive economic zone (EEZ) and noted that Federal jurisdiction does not extend beyond the EEZ.

Our response: The U.S. EEZ includes waters that are no more than 200 nautical miles (nmi) (370.4 km) from the territorial sea baseline; it begins at the 12 nmi (22.2 km) territorial sea of the U.S., its Territories, and Commonwealths. U.S. jurisdiction to manage resources is within the EEZ but does not extend beyond the 200 nmi border. However, under Section 9 of the Act (codified at 50 CFR 17.21), it is unlawful for any person subject to the jurisdiction of the United States to (A) import any such species into, or export any such species from the United States; (B) take any such species within the United States or the territorial sea of the United States; and (C) take any such species upon the high seas (emphasis added). Therefore, while U.S. jurisdiction to manage resources extends only to the edge of the U.S. EEZ, the Act's prohibition of take applies to any person subject to the jurisdiction of the U.S. on the high seas.

(3) Comment: One peer reviewer noted that the impacts to black-capped petrels by a large oil spill in the Gulf of Mexico would be difficult to document, such as in the case of the Deepwater Horizon spill in 2010. If petrels expired at sea, oceanic currents, tidal regimes, and wind regimes would make shoreline deposition and carcass detection difficult.

Our response: We recognize the difficulty of recovering and documenting animals in the offshore environment due to variable environmental and oceanographic influences. With the black-capped petrel's range now including a portion of the northern Gulf of Mexico, the risk of an accidental oil spill affecting the species is dependent on the amount of offshore petroleum structures and activities. The effects of an accidental oil spill depend on the timing of the spill, location of the spill, type of product spilled, and amount of product spilled. The severity and magnitude of the effects of accidental oil spills on the black-capped petrel cannot be quantified for this assessment due to the variable nature of each spill event. Accidental oil spills can be catastrophic but are not considered a persistent threat acting on the species due to the variable nature of an individual spill. In version 1.3 of the SSA report, we address the potential impact to the species from contact with oil and include a discussion of the species' overlap with the Deepwater Horizon oil spill's footprint in the northern Gulf of Mexico (Service 2023, pp. 29-30). We also include the information provided by the commenter in version 1.3 of the SSA report (Service 2023, pp. 29-30).

(4) Comment: One peer reviewer noted that the marine fisheries section in the SSA report seems to focus on mortality to petrels from fisheries, but asked why there was not a discussion about a reduction in or change of prey due to fisheries. They noted that this has been documented for the Hawaiian petrel ( Pterodroma sandwichensis ) (Wiley et al. 2013, entire).

Our response: While the Hawaiian petrel and black-capped petrel are congeners and may share similar responses to environmental changes, the best available information does not indicate that there is prey reduction or a change in prey due to fisheries in the black-capped petrel's range.

(5) Comment: One peer reviewer suggested we include information indicating it is likely the species breeds in Dominica and possibly in Guadeloupe.

Our response: We recognize the potential for the species to breed on Dominica and Guadeloupe, and we are aware of ongoing surveys to determine the species' occurrence on additional Caribbean islands other than Hispaniola. At this time, however, there is no confirmed evidence the black-capped petrel is nesting on Dominica or Guadeloupe, and the species is considered extirpated on both islands.

(6) Comment: The North Carolina Wildlife Resources Commission (NCWRC) offered collaboration opportunities for data and support if the species is listed. The agency also noted the importance to the species of the offshore areas between Cape Lookout and Nags Head, North Carolina, with peaks in usage during the spring and fall.

Our response: We value our partnerships and continued cooperation with State agencies to improve the science and recovery of listed species. The information regarding the area of high concentration for foraging off the coast of North Carolina is included in the SSA report describing the marine habitat of the black-capped petrel (Service 2023, pp. 4-8). The report emphasizes the importance of this area off the eastern United States for black-capped petrel foraging.

(7) Comment: Two commenters requested justification for the threatened status when black-capped petrel abundance is much lower than several similar species that were listed as endangered species, such as the Hawaiian petrel, band-rumped storm-petrel ( Hydrobates castro ), Bermuda petrel ( Pterodroma cahow ; listed with the common name “cahow”), and whooping crane ( Grus americana ).

Our response: Determinations of whether or not a species warrants listing as an endangered or a threatened species under the Act are species-specific. They are based on the best available science, after considering the species' life history and the factors listed in section 4(a)(1) of the Act that may impact the species as well as how the species may respond to those factors. Accordingly, we can reach different determinations for similar species, depending on the circumstances. However, after review of new information, we have determined that the black-capped petrel meets the Act's definition of an endangered species.

(8) Comment: One commenter noted that species' representation was described in the SSA report, version 1.1, as having a 43 percent reduction in geographic representation. The commenter provided information that densities of nests are much lower today than historically and that change in density should be factored into the current condition analysis.

Our response: We did not consider nest densities in the representation analysis, but we applied the available information regarding nest densities in our analysis of the species' resiliency. We assessed representation as the limited current distribution on a single island compared to historically, when the species was geographically represented more broadly across at least three other islands in the Caribbean (Dominica, Guadeloupe, and Martinique) (Service 2023, pp. 53-61).

(9) Comment: Several commenters stated that the Service did not consider current threats related to major shipping lanes that overlap with the species' foraging habitat, which currently exposes individuals to the presence of contaminants from the shipping industry (Halpern et al. 2008, entire).

Our response: We discuss the effects of certain contaminants under Offshore Oil and Gas on black-capped petrel below, however, we did not specifically identify contaminants from the shipping industry as a threat to the species. Future updates to the SSA report could include this factor if more information becomes available.

(10) Comment: One commenter noted information in the proposed rule described the species' specific needs and preferences for the offshore habitat elements as relatively flexible, plentiful, and widely distributed, and as stated there are no habitat-based threats to the species in the foraging range. The commenter was concerned the importance of specific areas in the offshore range was not recognized. They noted that the SSA report mentions that the offshore region from southern Florida to Cape Hatteras, North Carolina, is the only marine area where regular and sizable concentrations of the species occur. They add that Simons et al. (2013, p. S23) specify that “apparently most of the world's population of black-capped petrels forages off the coast of the southeastern [United States], making this area important for the survival of the species.” The commenter notes that other possible concentrations do not diminish the importance of the foraging area off the southeastern United States.

Our response: We did not intend to diminish the importance of the species' foraging area off the southeastern United States. We recognize the importance of this area for prey and foraging. We describe a core foraging area along the outer continental shelf off Cape Hatteras, North Carolina, where there is a steep shelf that contributes to nutrient-rich waters from upwelling that contain a concentration of prey. While this is the primary foraging area of the species, this is not the only area where the species forages, as black-capped petrels have been found in waters off the eastern coast of North America from latitude 40° N (approximately New Jersey) south to latitude 10° N (approximately northern South America). Additionally, new information associated with the species' occurrence at sea indicates an expansion of the species' range within the northern Gulf of Mexico.

(11) Comment: One commenter noted the proposed rule states that the impact of terrestrial wind farms on nesting petrels is unquantified. The commenter indicated that while there are problems with quantifying the impacts of terrestrial wind farms, the impact on nesting petrels has been quantified. They provided the example of multiple terrestrial wind energy habitat conservation plans in Hawaii where the Service participated in quantifying the numbers of nesting Hawaiian petrels and Newell's shearwaters ( Puffinus newelli ) allowed to be taken by incidental take permits.

Our response: We have included the information regarding impacts from wind energy on the Hawaiian petrel in the SSA report (Service 2023, p. 26) and considered the relevant information in our analyses presented in this final rule.

(12) Comment: One commenter mentioned that entities under U.S. jurisdiction ( i.e., Texas Petroleum Company for Chevron Texaco Petroleum Company) use the high seas and the southern Caribbean waters (such as Colombia) for oil extraction. The commenter questioned whether regulations implementing the Act apply in the U.S. EEZ.

Our response: Presidential Proclamation 5030 (48 FR 10605; March 14, 1983) from 1983 defines the United States' jurisdictional waters as the EEZ of the United States. The EEZ Proclamation confirms U.S. sovereign rights and control over the living and non-living natural resources of the seabed, subsoil and superjacent waters beyond the territorial sea but within 200 nautical miles of the United States coasts. NOAA's Office of Coast Survey, U.S. Maritime Limits and Boundaries website provides a detailed description (NOAA 2023, entire). The northern portion of the Gulf of Mexico is within U.S. jurisdiction; however, the southern Gulf of Mexico and the high seas are outside of that EEZ boundary. The protections of the Act apply in the EEZ, with the Service responsible for the management of bird species within U.S. jurisdiction, including the U.S. EEZ. Additionally, the prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take endangered wildlife within the United States or on the high seas.

(13) Comment: One commenter expressed concern that we did not include a description of survival of the different life stages of the black-capped petrel, including juveniles and immature petrels. They describe the survival of younger birds at sea as being lower in the first few years of life.

Our response: We were unable to quantify or describe the species' survival at sea based on age and concur with the commenters statement that younger seabirds in general do have a lower survival at sea than mature birds due to lack of foraging experience (Beauchamp 2022, entire). We did represent survival of the age classes in the nest success and nesting survival rate (Service 2023, p. 13).

(14) Comment: One commenter requested clarification regarding the age of maturity and generation times that were used in the SSA report. They expressed concern that our description of 5 years to maturity contradicts other papers that provide a range of 5 to 8 years. The commenter asserted that the age of maturity and generation times vary among sources and that these nuances are not discussed in the proposed rule.

Our response: We describe the age of sexual maturity, or first breeding, for black-capped petrels at 5 to 8 years based on the best available science (Goetz et al. 2012, p. 5; Simons et al. 2013, p. S22; Service 2023, p. 52). This is consistent with information that describes the age of sexual maturity is 5.3 years for the order Procellariiformes, in general (Hamer et al. 2002, p. 247).

A thorough review of the taxonomy, life history, and ecology of the black-capped petrel ( Pterodroma hasitata ) is presented in the SSA report (Service 2023, entire); available at https://www.fws.gov/program/southeast-region and at https://www.regulations.gov under Docket No. FWS-R4-ES-2018-0043.

The black-capped petrel is a pelagic seabird that is in the order Procellariiformes, family Procellariidae. It is a medium-sized seabird in the Pterodroma or gadfly genus with long slender wings and markings of a black cap and dark mantle separated by a white collar. The wings are black or darker in color on the top surface as well as the edges of the underwing. Certain morphological characteristics may vary across the species with “black-faced,” “white-face,” and “intermediate” variations of the species having different plumage coloration and patterns (Howell and Patteson 2008, p. 70).

The estimated breeding population size for black-capped petrels is between 500 to 1,000 breeding pairs (Simons et al. 2013, p. S22; BirdLife International 2022, unpaginated). Petrels tend to maintain a strong relationship with their breeding grounds and return to the same nesting areas each year (Warham 1990, pp. 231-234). This site fidelity of nesting birds tends to isolate breeding populations and can influence genetic, behavioral, and morphological variation due to limited genetic exchange.

Black-capped petrels currently breed only in the highest elevations on the island of Hispaniola; recent nesting areas included three sites in Haiti (Pic Macaya, Pic La Visite, and Morne Vincent) and three sites in Dominican Republic (Sierra de Bahoruco/Loma del Toro, Valle Nuevo National Park, and Loma Quemada). The Pic Macaya site is likely extirpated. The Morne Vincent and Loma del Toro sites are physically contiguous areas and ecologically the same nesting area but are on different sides of the border between Haiti and Dominican Republic. In the proposed rule, the Loma Quemada site was included with the Loma de Toro site, as they are both within the Sierra de Bahoruco. Therefore, effectively, there are only four current active nesting sites. Historically, the species also nested in Martinique, Dominica, Guadeloupe, and, possibly, Cuba (Simons et al. 2013, pp. S11-S19). Currently, nearly 50 percent of the known nests are found within Parc National La Visite (Pic la Visite) in the Massif de la Selle mountain range in Haiti (Goetz et al. 2012, p. 5).

Based on recent habitat suitability modelling for the species, there are an estimated 563 square kilometers (km 2 ) (139,120 acres (ac)) of potentially suitable nesting habitat (suitability indices> 0.65) throughout Hispaniola, with only about 167 km 2 (41,267 ac) considered “highly suitable” with indices >0.9 (Satgé et al. 2021, p. 581)., The occupied area of currently known nest sites only includes approximately 2 km 2 (494 ac) of that highly suitable habitat (Wheeler et al. 2021, pp. 73-82).

Black-capped petrels spend most of their time at sea in the northwestern Atlantic. The at-sea geographic distribution (marine range) of the species includes waters off the eastern coast of North America from latitude 40° N (approximately New Jersey) south to latitude 10° N (approximately northern South America) and includes waters of the countries of Aruba, Bahamas, Bermuda, Bonaire, Canada, Colombia, Cuba, Curacao Caymans, Dominica, Dominican Republic, Guadeloupe, Guyana, Haiti, Jamaica, Nicaragua, Panama, St. Lucia, St. Vincent, Trinidad and Tobago, Turks and Caicos, United States, Venezuela and beyond to areas in the high seas (Goetz et al. 2012, p. 4; Jodice et al. 2015, entire). Off the eastern coast of the United States, petrels forage primarily in the Gulf Stream, from northern North Carolina to northern Florida, in areas of upwelling; off the coast of North Carolina, the species is most commonly observed offshore seaward from the western edge of the Gulf Stream and in areas of deeper waters. Near-shore waters off the northern coast of Central and South America also serve as foraging areas for some black-capped petrels during the breeding season (Jodice et al. 2015, pp. 26-27).

New information associated with the species' occurrence at sea indicates an expansion of the species' range within the northern Gulf of Mexico. Recent sightings of individual black-capped petrels in the central and northeastern Gulf of Mexico show greater use of this marine region by the species than previously documented, resulting in a confirmed range expansion (Jodice et al. 2021, entire). Additionally, recent satellite tracking studies of individual black-capped petrels identified near-shore areas off the northern coast of Central and South America as areas where the species forages during the breeding season, and these areas may have previously been overlooked or underestimated (Leopold et al. 2019, entire).

Black-capped petrels feed mostly at night and pick their food from the water surface either solitarily or in close proximity to other foraging seabird species. The diet of black-capped petrels is not fully understood; however, stomach content studies found squid, fish, crustaceans, and Sargassum or marine algae (Haney 1987, pp. 163-164; Simons et al. 2013, p. S30). The plant materials in the stomach suggest the species may forage around Sargassum mats, which tend to attract prey species and lead to the ingestion of the algae materials while the petrels feed on their preferred prey. The limited amount of algae found within digestive tracts further suggests that petrels may only be incidentally foraging at the Sargassum (Moser and Lee 1992, p. 67).

Black-capped petrels are ground-nesters that use existing cavities under rocks or vegetation in areas of high elevation (greater than or equal to 1,500 meters (4,921 feet)). The nesting habitat is described as montane forests with steep slopes and rocky substrate, with or without vegetation or humus cover that provides underground pockets and cavities for excavating nests. They may also burrow at the base of native arborescent ferns (Brown and Jean 2021, p. 5). The nesting season begins around January, with high parental investment in the nest and chick rearing. The female lays only one egg each season, with an alternating male and female incubation period of 50 to 53 days, followed by shared parenting of the chick for a minimum of 80 days. Adults that are raising young may travel 500 to 1,500 kilometers (km) (310 to 932 miles (mi)) to obtain food for the young and have been found foraging in the Caribbean Sea (Jodice et al. 2015, pp. 26-27). Chicks fledge between May and July, and head out to sea to feed on their own (Simons et al. 2013, pp. S21-S22). When adult birds leave the nesting areas, they may migrate up to 2,200 km (1,367 mi) from the breeding grounds to primary offshore foraging areas off the mid-Atlantic and southern coasts of the United States (Jodice et al. 2015, p. 23).

The adults travel from nests to marine feeding areas during foraging bouts for the young, which generally occur at night; this makes visual observations difficult. The nests are also in rugged montane areas that are not easily accessed, and burrows are difficult to detect. The species was historically used as a food source for the island inhabitants, as the young chicks are easily captured once a burrow is located. The petrels were also drawn in using manmade fires (Sen Sel) intended to disorient the birds, causing them to fly towards the light of the fire and ultimately crashing into the land nearby where they were captured for food (Wingate 1964, p. 154).

Due to the high elevation and rough terrain of the nesting habitat, the species was rarely observed and thought to be extinct until it was rediscovered by Wingate in 1963, in the Massif de la Selle mountain range in Haiti. The estimated population at that time was around 2,000 pairs, based on potential occupied suitable habitat; however, there is some uncertainty of the accuracy of this estimate due to the methods used to extrapolate and it has been suggested that the population may have been even higher (Wingate 1964, p. 154).

Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in title 50 of the Code of Federal Regulations set forth the procedures for determining whether a species is an endangered species or a threatened species, issuing protective regulations for threatened species, and designating critical habitat for endangered and threatened species. In 2019, jointly with the National Marine Fisheries Service, the Service issued a final rule that revised the regulations in 50 CFR part 424 regarding how we add, remove, and reclassify endangered and threatened species and the criteria for designating listed species' critical habitat (84 FR 45020; August 27, 2019). On the same day, the Service also issued final regulations that, for species listed as threatened species after September 26, 2019, eliminated the Service's general protective regulations automatically applying to threatened species the prohibitions that section 9 of the Act applies to endangered species (84 FR 44753; August 27, 2019).

The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following 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.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.

However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.

The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term “foreseeable future” extends only so far into the future as the Services can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.

It is not always possible or necessary to define the foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent our decision on whether the species should be listed as an endangered or threatened species under the Act. However, it does provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies.

To assess the black-capped petrel's viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency is the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years); redundancy is the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation is the ability of the species to adapt to both near-term and long-term changes in its physical and biological environment (for example, climate conditions, pathogens). In general, species viability will increase with increases in resiliency, redundancy, and representation (Smith et al. 2018, p. 306). Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision.

The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket FWS-R4-ES-2018-0043 on https://www.regulations.gov .

In this discussion, we review the biological condition of the species and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability. We provide an overview of the main threats impacting the black-capped petrel's viability, both in its terrestrial breeding habitat and its marine range. Most threats are the result of anthropogenic activities, and the species' apparently finite availability of suitable breeding areas presents a major limiting factor in its ability to maintain viability. We include not only factors negatively affecting the species or its habitat, but also include conservation efforts that have a positive effect on the species. Additional details regarding the threats can be found in the SSA report (Service 2023, entire).

We reviewed the threats that are affecting the black-capped petrel now, and potentially into the future. Due to the pelagic nature of the species, and its dependency on both terrestrial and marine habitats during different life stages, threats act on the species during breeding/nesting/chick rearing and also at sea when not on the nesting grounds. The primary threats to the species on the breeding grounds (terrestrial life stages and habitat) are habitat loss and degradation due to deforestation, anthropogenic forest fires, and development (Factor A) and depredation by introduced mammals (Factor C); additional factors affecting the species for both terrestrial and marine life stages and/or its habitat include collisions with communication towers (Factor E) and artificial lighting that causes disorientation (grounding and collisions) (Factor E). At sea, the species uses areas that may overlap with coastal and offshore wind infrastructure and development (Factor E), and offshore oil and gas development (Factor E). In addition, marine fisheries bycatch may occur when black-capped petrels are incidentally caught in fishing gear and the artificial lighting on fishing vessels may cause disorientation (Factor E). The effects of climate change are also expected to affect the species through increased storm intensity and frequency, resulting in flooding of burrows and erosion of suitable nesting habitat (Factors A E). The predicted increase in strong Atlantic storms or hurricane frequency due to climate change is also expected to lead to an increase in land strandings (Factor E). We discuss each of these factors in more detail below, however, additional information on the threats can be found in the SSA report (Service 2023, pp. 15-37).

Deforestation, and associated loss and degradation of nesting habitat, is considered one of the most significant threats to the black-capped petrel (Goetz et al. 2012, entire; Wheeler et al. 2021, pp. 12-16). Many of the Caribbean islands where petrels were historically reported have experienced extremely high rates of forest conversion and loss since European colonization (Goetz et al. 2012, entire; Simons et al. 2013, p. S31). Urbanization, agricultural development, charcoal production, and tree fern harvesting are driving the changes in the forested areas where the petrels breed.

On Hispaniola, where all known currently active black-capped petrel nesting sites occur, estimates of deforestation range from nearly 90 percent of primary forests removed in the Dominican Republic portion to more than 90 percent removed in the Haitian portion (Castro et al. 2005, p. 7; Simons et al. 2013, p. S31; Churches et al. 2014, entire). Recent quantitative assessments also indicate that the rate of deforestation in and around petrel nesting colonies and areas of suitable nesting habitat has accelerated in recent years, ranging from 3.8 percent to 56 percent from 2000 to 2018 in areas known or likely to contain petrel nests (Lloyd and Leon 2019, p. 5; Satgé et al. 2021, p. 583).

Deforestation in the Haitian nesting areas is particularly significant for the black-capped petrel given that 50 percent of all active nest sites of the species may occur there (Goetz et al. 2012, p. 5; Wheeler et al. 2021, p. 10). Although deforestation in petrel nesting areas of the Dominican Republic has been comparatively lower, recent increases in forest clearing for subsistence agriculture and charcoal production in the Sierra de Bahoruco and other areas adjacent to the Haitian border have resulted in concomitant increases in nesting habitat loss and degradation there (Checo 2009, entire; Grupo Jaragua 2011, entire; Goetz et al. 2012, p. 7; Simons et al. 2013, p. S31).

Charcoal, along with firewood, is used for cooking and is one of the primary sources of energy in Haiti. The overwhelming dependence on wood- based cooking fuels in parts of Hispaniola has resulted in substantial deforestation and forest conversion in both Haiti and adjacent regions of the Dominican Republic.

Recently, the harvesting of tree ferns to sell as substrate for ornamental plants has been increasingly occurring in black-capped petrel nesting areas of Haiti. The harvesting of these ferns disrupts and destabilizes soil in the vicinity of the nest burrow. At least 14 active nests were destroyed due to this activity during the 2020-2021 nesting season (Brown and Jean 2021, p. 4).

The frequency and intensity of fires in and around petrel nesting areas has increased in recent years, further exacerbating, and contributing to deforestation and habitat degradation in the region (Batlle and Ramon 2021, p. 36; IBPCG 2021, p. 1). Effects to the terrestrial habitat from fire may be significant and potentially long-term, as fires set to clear land for agricultural development can result in substantial loss and conversion of forested nesting habitat. Moreover, fires during the incubation and brooding phase can cause injury or mortality for adults and nestlings within nest burrows.

The frequency and intensity of fires in and around black-capped petrel nesting areas has increased in recent years, further exacerbating and contributing to deforestation and habitat degradation in the region (Batlle and Ramon 2021, p. 36; International Black-capped Petrel Conservation Group (IBPCG) 2021, p. 1). Natural fires resulting from lightning strikes also occur, but these tend to occur mainly during the wetter summer months (Robbins et al. 2008, entire). Naturally occurring fires may help maintain open, pine savannahs at higher elevations, which may be more accessible to petrels (Simons et al. 2013, p. S31). In contrast, most anthropogenic fires occur during the winter dry season, when black-capped petrels are actively nesting (Simons et al. 2013, p. S31) and thereby constitute more of a direct threat. Dry season fires also tend to be more intense, delaying or inhibiting forest recovery due to destruction of seed banks and organic humus layers (Rupp and Garrido 2013, entire).

Fires indirectly affect black-capped petrel nesting habitat by increasing erosion and mudslides following elimination of previously existing vegetation and ground cover. In the Massif de la Selle in Haiti, deliberately set fires likely caused increased erosion of cliffs used for nesting by black-capped petrels; the fires were set to facilitate clearing of land and for fuel wood harvesting (Woods et al. 1992, pp. 196-205; Simons et al. 2013, p. S33). For years, such fires have also denuded large swaths of forest cover in the black-capped petrel nesting areas of Pic Macaya in the Massif de la Selle of Haiti (Sergile et al. 1992, pp. 5-12). In the black-capped petrel nesting areas of the Dominican Republic, fires are also at times deliberately set in retaliation for actions taken by government officials to evict or otherwise deter Haitian migrants engaged in illegal land-clearing activities (Rupp and Garrido 2013, entire).

As a Caribbean Island, Hispaniola has desirable coastal property with high potential for recreational and tourist development. Although the high-elevation areas where the black-capped petrel nests are currently among the most remote and sparsely populated areas of Hispaniola, the government of the Dominican Republic has initiated long-term plans to promote major tourism development in the region (Ministerio de Turismo 2012, entire; Dirección General de Alianzas Público Privadas (DGAPP) 2021, entire). These plans are focused immediately south of the petrel nesting areas in the Sierra del Bahoruco, on the coastal area of Pedernales/Cabo Rojo, and include several major resort hotels, apartment complexes, golf courses, a major international airport, and a large marina (DGAPP 2021, entire). The airport is expected to become the second largest in the Dominican Republic in terms of passenger traffic, with an estimated 1.6 million passengers per year at project completion (DGAPP 2021, pp. 89-107). According to official statements and published plans by the Dominican government, this development will consist of a major international airport, large marina or cruise ship terminal, luxury apartment buildings, and several major resort hotels. The area under development is not directly affecting the nesting habitat, as it is not in the highest elevation areas, but it is located along petrel flight paths between the nesting areas in the Sierra del Bahoruco and foraging in the Caribbean Sea, which could affect petrels heading out to sea for foraging bouts. These foraging bouts are important for sustaining brooding adults incubating the nests and returning food to the chicks on the nests. While likely needed for the economic welfare of the local citizens, the infrastructure associated with such developments also inevitably results in a substantial increase in artificial lighting, including that of commercial and private aircraft during nighttime arrivals and departures. Indeed, concerns have recently been raised by local residents over the potential for environmental damage and degradation resulting from this development project (DRS 2022, unpaginated). Concomitant with this development will be an increase in human presence and electric power needs. Wind turbines, as well as a new 138-kilovolt electrical transmission grid parallel to the coast, will be installed to supply power to the region (DGAPP 2021, pp. 57-64). In Hawaii, powerline collisions are a main threat that have contributed to the decline of the Newell's shearwater and Hawaiian petrel (L. Nagatani 2022, pers. comm.). The significant increase in local human population, and associated increases in artificial lighting, will be located between petrel nesting areas in the Sierra del Bahoruco and Caribbean Sea, which also align with petrel flight paths to and from such areas. This could result in direct or indirect mortality of black-capped petrels.

The recent discovery of economically significant sources of Rare Earth Elements (REE) in the southern Sierra del Bahoruco prompted the Dominican government to set aside a large tract of land near current petrel nesting areas for the exploration and extraction of these resources, which are critical components in solar and cellular communication technologies.

Like most native Caribbean species, the black-capped petrel evolved in the absence of mammalian ground predators. However, following European colonization, many Caribbean islands quickly became host to populations of introduced black rats ( Rattus rattus ), Norway rats ( Rattus norvegicus ), domestic dogs ( Canis familiaris ), feral pigs ( Sus scrofa ), and domestic cats ( Felis domesticus ). In the late 1800s, the deliberate introduction of the small Indian mongoose ( Herpestes javanicus ) resulted in apparently uncontrollable mongoose populations on all islands (except Dominica) where the black-capped petrel is known or suspected to nest or once nested (Barun et al. 2011, pp. 19-20; Simons et al. 2013, p. S31).

The primary cause of nest failure is predation by nonnative species (Wheeler et al. 2021, p. 16). Recent surveys at nesting areas have also found higher rates of predation than previously known. For instance, the Loma del Toro nesting area is in the Sierra de Bahoruco of the Dominican Republic and is approximately 370 ac (150 hectares (ha)) (Wheeler et al. 2021, p. A2-77). Since 2018, cumulative monitoring of 95 black-capped petrel nesting attempts suggests that overall success rates (53 percent) are lower than the nearby Morne Vincent nesting area in Haiti (IBPCG 2018, entire; IBPCG 2019, entire; IBPCG 2020, entire; IBPCG 2021, entire). During the recent black-capped petrel nesting season (2021-2022), nest success estimated from the 23 nests monitored in this colony declined to 22 percent (5 successful nests and 18 unsuccessful) (E. Rupp, Grupo Jaragua, in litt.), and severe nest predation by stray dogs has occurred in this nesting area (IBPCG 2021, p. 1). Historical ( i.e., prior to the introduction of exotic mammals into black-capped petrel habitat) estimates of nest success in this area are unavailable.

Valle Nuevo National Park, Dominican Republic, was a suspected nesting area prior to 2017, when nesting was confirmed. To date, 13 black-capped petrel nests have been identified within an area of approximately 35 ac (14 ha) (Wheeler et al. 2021, p. A2-81; IBPCG 2021, p. 4). As with all other black-capped petrel nesting colonies, black-capped petrels nesting in Valle Nuevo face the threats of agricultural activities, habitat loss, and communication towers (Goetz et al. 2012, p. 5; Wheeler et al. 2021, pp. 12-16), all of which exacerbate predation by invasive mammals. This is in addition to the increasing threat posed by encroachment of invasive ferns, which block access to nest sites (Wheeler et al. 2021, p. 14; Davis 2019, p. 58). All nests at Valle Nuevo failed to fledge young during both the 2020 (n=13) and 2021 (n=17) nesting seasons, and predation by the invasive mongoose is believed to be the cause (IBPCG 2021, p. 4; E. Rupp, Grupo Jaragua, in litt.).

New information shows the threat of depredation is affecting the reproductive success of the species and is more widespread than previously described. The documented loss of black-capped petrels to mammal depredation at three of the four nesting sites has a significant negative impact to the overall reproduction of the species. Each breeding pair lays one egg per nesting season. In 2021, it was documented that one single dog predated at least 19 black-capped petrels. During the 2020 to 2021 period, at Pic La Visite, 54 percent of the nests were lost to mammal depredation, with adult black-capped petrels also lost to mammal depredation. Similar declines in nest success were documented at Loma del Toro, where 85 percent of the nests were lost to mammal depredation, and at the Valle Nuevo area, where all nests were lost to mammal depredation (in addition to the loss of adults) during the 2019-2020 and 2020-2021 periods.

Recent years have seen the proliferation of telecommunication towers throughout the Caribbean islands. These towers are typically located on high mountain ridges, hills, and other prominent topographic features, and the structures extend several meters above canopy level. Many of the tallest are also secured by numerous guy wires (Longcore et al. 2008, entire; Simons et al. 2013, p. S32). Petrels, particularly inexperienced fledglings and juveniles, are especially sensitive to artificial lighting, likely due to a dependence on visual cues such as moonlight and starlight for nocturnal navigation (see Imber 1975, p. 304; Le Corre et al. 2002, p. 390; Rodriguez and Rodriguez 2009, p. 303; Rodriguez et al. 2017a, p. 989; Rodriguez et al. 2017b, p. 68). Petrels that nest in burrows or cavities are more affected by artificial lighting than ground-nesting species due to their inherent nature to associate light with food (Imber 1975, p. 305). Because of the black-capped petrel's nocturnal activity, combined with the high speed at which they fly, they are highly vulnerable to aerial collisions with these unseen structures, especially on foggy nights typical of the petrel nesting season (Goetz et al. 2012, p. 8; Longcore et al. 2013, entire; Simons et al. 2013, p. S32). There have been numerous documented cases of black-capped petrel mortality and injury from aerial collisions with lighted structures in or near their breeding areas (Goetz et al. 2012, p. 8; Simons et al. 2013, p. S32), as well as groundings of adults and fledglings (Rodriguez et al. 2017a, p. 989).

Infrastructure associated with offshore, coastal, and upland wind energy projects can cause collision risks for black-capped petrels at sea or on their breeding areas on Hispaniola. The increasing use of wind farms on and near Caribbean islands may constitute a potential threat to flying petrels (Simons et al. 2013, p. S32). As with communication towers, land-based wind farms tend to be located on high ground, where winds are higher and more constant. Threats are not only associated with collisions with fan blades, but also disorientation from associated lights with which such structures are equipped. Recent construction of inland wind farms near black-capped petrel nesting areas on Hispaniola constitute an additional and unquantified threat.

For offshore wind energy sites, not only are there risks associated with collisions and lighting impacts, but wind farms can change the local hydrodynamics and species distribution. For example, turbidity is affected and influences predator and prey interactions, where predators may be attracted to and prey may avoid the area affected (Van Berkel et al. 2020, pp. 113-114).

In the United States, as of 2022, the only offshore areas that have operating wind farms are off the coasts of New Jersey and Virginia. While existing offshore wind energy areas are outside of the black-capped petrel's range, some future potential wind energy areas off the Atlantic coast of the United States do overlap with small portions of the species' core areas (primary foraging area) and home ranges (Satgé et al. 2022, p. 14). On August 1, 2023, the Bureau of Ocean Energy Management (BOEM) identified wind energy areas off the coast of Delaware, Maryland, and Virginia in a Notice of Intent to Prepare an Environmental Assessment (88 FR 50170); however, these areas are closer inland than black-capped petrels normally forage and would likely only affect individual petrels that are blown off their normal areas in high wind situations.

In the northern Gulf of Mexico, there have been studies to determine offshore wind potential. The BOEM proposed wind energy lease areas in October 2022 off the coast of Louisiana and Texas (BOEM 2022, entire). However, these areas are 40-50 mi (64.4-80.1 km) from documented black-capped petrel locations (Jodice et al. 2021, entire). There are also plans to develop wind energy areas off the coast of Colombia, South America that may affect the black-capped petrel.

Wind energy impacts on the black-capped petrel are not well-studied; however, we are aware that take of other petrel species has occurred due to wind farm activities. For example, the Service has issued incidental take permits to several wind farms in the State of Hawaii. The effect of nesting petrel mortality caused by wind turbines (or any other factors) could be effectively doubled as the single chick would likely die within the nest burrow from subsequent starvation due to the lack of biparental care (Hamer et al. 2002, pp. 238-243).

Activities associated with offshore oil and gas infrastructure and operations could pose a threat to black-capped petrels or their habitat. Some of the hazards include collisions, disorientation from lighting/flaring, and exposure to petroleum products and other discharged wastewater products.

Offshore oil and gas operations are ongoing in many areas of the species' marine range. In the U.S. waters, there is ongoing and planned oil and gas activity in the northern Gulf of Mexico that overlaps with the black-capped petrel's range (Jodice et al. 2021, p. 60). There is also oil and gas production off the coasts of Cuba, Colombia, and Venezuela. Black-capped petrels were observed foraging in the southern Caribbean Sea in Colombian lease areas under evaluation or exploration, or open for concession; minimum distances to an active lease area and a well in production were 7 km (4.3 mi) and 24 km (15 mi), respectively (Satgé et al. 2019, pp. 40-41). In addition, petrels occurred 34 km (21.1 mi) from an active lease area, and 50 km (31 mi) from a well in production, near Venezuela (Satgé et al. 2019, p. 12). Black-capped petrels utilizing these areas for foraging or resting could be exposed to hydrocarbon releases during accidental oil spills, as well as to increased concentrations of contaminants from uncontrolled seepage. This could result in direct mortality ( i.e., external oiling); indirect mortality (ingestion of crude oil through prey or preening); or sublethal effects on reproduction, such as hormone suppression, impaired egg formation, or increases in malformations (Helm et al. 2015, pp. 431-453).

The range of the black-capped petrel overlaps with international industrial fishing fleets and squid fisheries, with squid fishing occurring in the Caribbean Sea. The vessels targeting squid use very bright lights to attract their catch, which could cause disorientation of, and increase the number of collisions with, black-capped petrels; however, there is little information from foreign fishing fleets regarding the impacts from fisheries (Simons et al. 2013, p. S33). There has been at least one incident of black-capped petrel collision with a fisheries research vessel in the northern Gulf of Mexico in U.S. waters (Satgé et al 2023, p. 57). The collision occurred at night and the vessel was lighted, which likely contributed to attraction and disorientation of the petrel.

Aside from lighting, petrels can become entangled in fishing lines, nets, and hooks during their foraging bouts. There are several methods of commercial fishing practiced in the species' range, including pelagic long line fishing, gillnet use, and trawling. Marine fisheries may entangle seabirds in clear monofilament fishing lines or hooks and increase opportunity for collisions with vessels (Furness 2003, p. 34; Li et al. 2012, p. 563). It is difficult to conclusively determine the direct and indirect impacts to black-capped petrels from marine fisheries based on the available information. It was estimated that between 8 to 24 black-capped petrels were affected by pelagic longline fishing in the U.S. Atlantic waters between 1992 to 2016; this analysis was based on the relationships between seabird bycatch likelihood and the surface-scavenging behavior of species, such as petrels, resulting in a higher chance of interaction with longline fishery gear (Zhou et al. 2019, p. 1332).

The black-capped petrel faces potential impacts from climate change effects on both foraging and breeding areas through differing mechanisms (Simons et al. 2013, p. S33). Regarding the marine range where the species is found (when not in breeding status), there is a strong association with the Gulf Stream current and upwellings off the southeastern U.S. coast that influences the species' vulnerability to climate-induced changes. Increases in temperature affect the intensity and track of the Gulf Stream current and associated changes in marine primary productivity, as well as the abundance and diversity of marine nekton ( i.e., actively swimming aquatic organisms), which are essential food sources for the black-capped petrel (Chávez et al. 2011, p. 230; Bakun et al. 2015, pp. 85-86; Saba et al. 2016, p. 131; Siqueira and Kirtman 2016, pp. 3965-3966; Kimball et al. 2020, p. 936; Zhang et al. 2020, pp. 707-710). For example, in coastal South Carolina, over a 30-year period, the subtidal nekton assemblage transitioned to a state of lower abundance and different composition as a result of increased water temperature and storm events (Kimball et al. 2020, pp. 927-928).

The terrestrial habitat is also impacted by the effects of climate change due to changes in storm and hurricane regimes. Increased intensity and frequency of major (Category 3 to Category 5) Atlantic hurricanes (Bender et al. 2010, p. 456), combined with reduced translation speeds ( i.e., the speeds at which hurricanes move), may further accelerate erosion and degradation of nesting areas (Hass et al. 2012, p. 259; Simons et al. 2013, p. S33; Kossin 2018, p. 104).

Because of the species' highly specific nesting habitat requirements, found only in areas highly sensitive to climatic change, those areas are among the most vulnerable to the adverse effects of climate change (Williams et al. 2007, pp. 5739-5740; Sekercioglu et al. 2008, p. 145; Thurman et al. 2020, p. 520). The species is restricted to the highest elevations on Hispaniola, and should such areas be rendered unsuitable, the species would have no place to go to seek climate refugia, thus increasing the extinction risk.

The black-capped petrel is protected under the Migratory Bird Treaty Act of 1918 (16 U.S.C. 703-712). Protections from this Act are limited to areas within the United States or its Territories and Commonwealths, and the black-capped petrel does occur within waters of the United States. Permits are required for activities within U.S. jurisdiction that may cause the taking, possession, transportation, sale, purchase, barter, importation, exportation, and banding or marking of migratory birds. There are also certain exceptions to permit requirements for public, scientific, or educational institutions, and there are depredation orders that provide limited exceptions to the provisions of the Migratory Bird Treaty Act. See title 50 of the Code of Federal Regulations (CFR) at part 21 for more information about these permit requirements and exceptions.

Ongoing conservation efforts by many organizations include research and public outreach for the conservation of the black-capped petrel. Several nongovernmental organizations (NGOs) are currently working in Haiti and the Dominican Republic to reduce or mitigate the severity of identified threats. These NGOs include international organizations ( e.g., BirdsCaribbean, Environmental Protection in the Caribbean, Plant with Purpose, American Bird Conservancy, International Black-capped Petrel Conservation Group (IBPCG)), as well as local organizations ( e.g., Grupo Jaragua, Société Audubon Haiti). Because most of the threats to the black-capped petrel are directly the result of anthropogenic activities (Service 2023, pp. 15-35), these NGOs have been providing technical assistance and education on sustainable agricultural practices, watershed management, and reforestation of previously deforested and degraded areas in the regions where black-capped petrels nest.

Conservation efforts, including environmental education regarding the black-capped petrel, occur at the local level. For example, in Boukan Chat, Haiti (adjacent to the Morne Vincent petrel nesting area), NGOs have developed black-capped petrel educational programs for local schoolchildren, provided financial and technical assistance with construction of freshwater cisterns, and provided tree seeds and technical assistance for local reforestation projects. Some residents of Boukan Chat have been hired specifically to improve community awareness of the black-capped petrel and its plight, and of how sustainable land management can be mutually beneficial to both the community and the petrel.

Building on past and current efforts, the IBPCG recently compiled and published a comprehensive and strategic conservation action plan (hereafter, “Plan”) for the long-term conservation of the black-capped petrel (Wheeler et al. 2021, entire). The Plan summarizes recent information relative to species conservation, including nesting habitat modeling and population viability analyses; additionally, the Plan identifies priorities such as promoting petrel conservation through local community involvement, as well as habitat and species conservation measures. The Plan is a guide for current and future black-capped petrel conservation efforts.

Other NGO efforts include recent production of the documentary “Save the Devil,” detailing local efforts to save the species, in addition to active monitoring for forest fires near black-capped petrel nesting areas, continued monitoring of petrel nest success in the Morne Vincent/Sierra del Bahoruco nesting area, continued radar and bio-acoustical monitoring for petrel detections, and working with owners of a local communication tower to reduce nocturnal lighting intensity (Brown 2016, entire; IBPCG 2016, entire; 2017, entire; Wheeler et al. 2021, entire). Additionally, there have been some efforts to trap introduced predators at or near black-capped petrel nest sites, but results have been hindered by the remoteness of field sites and theft of traps. While some efforts are locally successful, they are relatively limited in both geographic scope and funding. There are other areas of Hispaniola which harbor, or may harbor, black-capped petrel nesting colonies ( e.g., Pic Macaya, Pic La Visite, Massif de La Selle) that could benefit from similar efforts.

We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. To assess the current and future conditions of the species, we undertake an iterative analysis that encompasses and incorporates the threats individually and then accumulates and evaluates the effects of all the relevant factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

Below, we provide an overall summary of the species' current condition in terms of resiliency, redundancy, and representation as described in detail in the SSA report (Service 2023, pp. 37-61) and include new information that indicates the current condition is lower than described in the October 9, 2018, proposed rule (83 FR 50560).

The black-capped petrel's current condition is based on the breeding grounds and the life stages associated with the terrestrial habitat. The nesting areas include three in Haiti (Pic Macaya, Pic la Visite, and Morne Vincent) and three in Dominican Republic (Sierra de Bahoruco/Loma del Toro, Valle Nuevo, and Loma Quemada), with Pic Macaya recently considered extirpated. As noted above, Morne Vincent and Loma del Toro are ecologically the same nesting area but are on different sides of the border between Haiti and Dominican Republic. We identified them separately for purposes of our analysis because of differences in threats. The resiliency of the populations at each breeding area was analyzed using available data associated with demographic factors, including acoustic and radar detections, number of active nests, and new success for each of the populations (Service 2023, pp. 53-55). Each of the demographic factors were compiled for each population and qualified using low, medium, and high descriptions (Service 2023, pp. 53-55). We did not apply habitat factors or threats during the resiliency analyses but considered those factors along with redundancy and representation in the overall current condition and species' viability (Service 2023, pp. 59-61). Principal factors that have adversely affected current conditions include increases in (1) forest fires, (2) predation of nests and adults by nonnative mammals, (3) loss and degradation of nesting habitat, and (4) direct effects of hurricanes and tropical storms.

The species exhibits low resiliency at Loma Quemada and Valle Nuevo, medium resiliency at Morne Vincent and Sierra de Bahoruco/Loma del Toro, and high resiliency at Pic la Visite; it is considered extirpated at Pic Macaya. The current condition of each breeding site reflects the current resiliency based on historical optimal conditions (Service 2023, pp. 52-55).

Resiliency of the populations in the nesting areas are lower than previously described in our 2018 proposed rule, influenced greatly by depredation by nonnative mammals. For example, the Valle Nuevo nesting population in the Dominican Republic has experienced an apparent complete failure of all known nests over two recent (2020, 2021) nesting seasons (IBPCG 2021, p. 1; IBPCG 2022, p. 6), largely because of mongoose predation. The nesting colony at Pic Macaya in Haiti once accounted for 5 percent of the total breeding population; however, the habitat conditions have deteriorated, and no nesting has been detected here in the past 20 years. This site is in the far southwestern point of Haiti where, despite its location within Macaya National Park, the habitat has been heavily impacted by agricultural development and fires (Goetz et al. 2012, p. 5; Wheeler et al. 2021, p. A2-84), with up to 56 percent of total forest cover lost in the period 2000-2018 (Satgé et al. 2021, p. 586). Additional ongoing impacts to the species and its nesting habitat in this area include depredation by introduced mammals (cats, rats, and feral pigs). This site is considered extirpated.

Such threats on the nesting grounds are currently reducing the species' reproductive success in affected breeding populations through direct losses of adult breeding birds. The black-capped petrel is a k -selected species, meaning a species whose populations fluctuate at or near the carrying capacity ( k ) of the environment in which they reside. K -selected species tend to produce relatively low numbers of offspring and are characterized by more parental investment in nesting and chick-rearing and longer lifespans. For strongly k -selected species such as the black-capped petrel, losses of breeding adults exacerbate the ecological effects of lowered reproductive output because of the level of parental care they provide to offspring, and population modeling for similar species has shown that such combined effects—if not controlled—can quickly place the species at risk of extinction (Simons 1984, p. 1071). Even a rather “generic” population viability analysis (PVA) based on composite data from 35 other Pterodroma species predicts a steady decline in population viability for the black-capped petrel during this century, with a nearly 75 percent decrease in total population over the next 50 years (Wheeler et al. 2021, p. 18).

While resiliency at Pic la Visite was considered high, nearly 50 percent of all known active nests are also concentrated in a single area at Pic la Visite within 2.47 ac (1 ha) (Wheeler et al. 2021, pp. 10, A2-73). Recent species-specific habitat modelling (Satgé et al. 2021, entire), demonstrates that the amount and distribution of suitable nesting habitat for the species on Hispaniola is approximately 70 percent less than previously believed ( i.e., Service 2019, p. 48), and that such habitats have been severely reduced and fragmented by ongoing forest loss for the past two decades. This limited availability and distribution of suitable high-elevation nesting habitats renders such areas highly vulnerable to slight changes in environmental conditions due to climate change. Recent (2018-2021) trends and data suggest that many of the major threats acting on the species are increasing in both magnitude and biological impact.

Threats related to anthropogenic stress and climate change have caused reduced resiliency of breeding populations, which, in turn, cause low species-level redundancy. This hinders the ability of the species to withstand climate change-induced catastrophic events ( e.g., hurricanes), and inflexible breeding habitat requirements would make it difficult for black-capped petrels to move to other geographic areas, should their current terrestrial habitat become unsuitable.

Redundancy reflects the capacity of a species to persist in the face of catastrophic events. This is best achieved by having multiple, widely distributed resilient populations across the geographical range of the species. As described, most known nests (80 to 90 percent) are believed to be within the Pic La Visite and Morne Vincent/Loma del Toro nesting areas (Brown and Jean 2021, p. 2). This means that most nests are within a geographically restricted area, which would hinder the species' ability to face catastrophic events. Additionally, this geographically restricted area is currently subject to significant and increasing pressure from deforestation and other anthropogenic activities (IBPCG 2019, pp. 2-3; Wheeler et al. 2021, p. A2-74). With the recent extirpation of the westernmost population in Haiti (Pic Macaya) due to habitat loss and degradation, the redundancy on Hispaniola is lower than described in the October 9, 2018, proposed rule (83 FR 50560).

Representation reflects the adaptive capacity of a species in the face of current and future physical ( e.g., climatic variations, habitat degradation, and anthropogenic structures) and biological ( e.g., novel predators, pathogens) changes in environmental conditions. The species has been confined to a single island for nesting, with the loss of populations on Martinique, Guadeloupe, and Dominica. Because the black-capped petrel has high nesting site fidelity, the loss of these breeding populations on other islands likely has resulted in the loss of unique genotypes and phenotypes, contributing to an overall limited representation. The species' current condition is even lower than described in the October 9, 2018, proposed rule (83 FR 50560) due to lower resiliency across most breeding areas and limited redundancy and representation. Due to the immediate threats—habitat loss and degradation, and depredation—affecting the species and its nesting habitat, the species' overall viability has declined.

In describing the species' viability in the future, we considered the predictive range of existing data and projected threats and the species' response using three plausible scenarios. We assessed the threat of habitat destruction, modification, or curtailment on the nesting grounds in terms of land clearing for charcoal production on Hispaniola as a result of increased human populations and limited insular resource availability. As the human population increases, the demand for charcoal will increase, resulting in more cleared lands and a greater impact on the primary forests. We also considered the effects of climate change into the future and describe changes in the hurricane regime and temperatures that will affect the black-capped petrel on its nesting grounds and potentially in its marine range. As we have determined that the species meets the Act's definition of an “endangered species” (see Determination of Black-capped Petrel's Status, below), the future conditions are not described in detail in this final rule. Instead, details regarding the future conditions analysis and the future resiliency, redundancy, and representation of the black-capped petrel are presented in detail in the SSA report (Service 2023, pp. 62-79), which is available at https://www.regulations.gov under Docket No. FWS-R4-ES-2018-0043.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of an endangered species or a threatened species. The Act defines an “endangered species” as a species in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether a species meets the definition of endangered species or threatened species because of any of the following 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.

After evaluating threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we have determined habitat loss and degradation due to deforestation from fires for agricultural development and charcoal production are currently affecting the species and its nesting grounds on the island of Hispaniola (Factor A). Fires are used to remove forest cover to allow for agricultural crops. Historically, the black-capped petrel also nested on the islands of Guadeloupe, Martinique, Dominica, and possibly Cuba but is now confined to a single island. The species was extirpated from Martinique in pre-Columbian times by island residents that overharvested the petrel for consumption (Factor B). Further, depredation by nonnative mammalian species is a threat to petrels on islands, contributed to the loss and extirpation of the species on the island of Dominica in the late 19th century, and is currently affecting the black-capped petrel (Factor C). Additionally, the species' nesting range is limited to steep, high-elevation areas that can be affected by erosion due to increased hurricane intensity and frequency, reducing available cavities or access to nesting sites (Factor E).

The current resiliency for the black-capped petrel is described as low and is expected to decline in the near future, along with having limited redundancy and representation. The overall species' viability reflects the nature of an island endemic that has a breeding area confined to the highest elevation of a single island. In 1961, the population was estimated to be around 8,000, and it is suggested that it has declined in abundance by 50 to 75 percent over the last 50 years. With an estimated breeding population of 500 to 1,000 breeding pairs (Simons et al. 2013, p. S22; BirdLife International 2022, unpaginated), impacts at any breeding site in any given breeding season have consequences to the species' overall viability. For a species where a breeding pair produces a single egg each year, those consequences include loss of reproductive potential for the affected adults and chicks of that generation.

Due to increasing habitat loss and degradation through deforestation for agricultural development and charcoal production, the recent habitat suitability modeling for the species (Satgé et al. 2021, entire) found that the suitable breeding habitat is 70 percent less than what we previously estimated in 2018 (Satgé et al. 2021, pp. 583-586).

New information shows the threat of depredation is affecting the reproductive success of the species and is more widespread than previously described. The documented loss of black-capped petrels to mammal depredation at three of the four nesting sites has a significant negative impact to the overall reproduction of the species. Each breeding pair lays one egg per nesting season. In 2021, it was documented that one single dog predated at least 19 black-capped petrels. During the 2020 to 2021 period, at Pic La Visite, 54 percent of the nests were lost to mammal depredation, with adult black-capped petrels also lost to mammal depredation. Similar declines in nest success were documented at Loma del Toro, where 85 percent of the nests were lost to mammal depredation, and at the Valle Nuevo area, where all nests were lost to mammal depredation (in addition to the loss of adults) during the 2019-2020 and 2020-2021 periods.

In addition to depredation, there are other threats to the breeding areas, including development, fires, collisions with communication towers, and artificial lighting, The effects of climate change are also expected to affect the species through increased storm intensity and frequency, resulting in flooding of burrows and erosion of suitable nesting habitat. The degree of impacts from these threats varies from site to site. These threats to the nesting areas are reducing the species' reproductive success and are causing direct losses of breeding animals.

Due to the loss of nesting areas across the historical range of the species, the black-capped petrel is currently only confirmed to be reproducing on the island of Hispaniola. The species' range reduction has led to the loss of redundancy of populations, with only four known nesting colonies remaining, all confined to one island, and 50 percent of the nesting populations within a very small geographical area, making the species highly susceptible to catastrophic events. This also contributes to the loss of representation; as the species has high fidelity to the same nesting sites each year, there is limited genetic exchange between populations. With the loss of populations on other islands, this reduces the potential for additional genetic lineages to increase genotypic diversity within the species. There is a documented decrease in breeding habitat availability and habitat quality, coupled with a declining breeding population.

After evaluating threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we find that rapidly declining habitat availability and quality, combined with a substantial increase in both the extent and intensity of mammal depredation to nests and adult nesting black-capped petrels between 2019 to 2021, show that the species is in danger of extinction now. Moreover, due to the imminent nature of these threats acting on the species and its habitat along with the species' response to the threats, the species is currently in danger of extinction. Thus, after assessing the best available information, we determine that the black-capped petrel is in danger of extinction throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so within the foreseeable future throughout all or a significant portion of its range. We have determined that the black-capped petrel is in danger of extinction throughout all of its range and accordingly did not undertake an analysis of any significant portions of its range. Because the black-capped petrel warrants listing as an endangered species throughout all of its range, our determination does not conflict with the decision in Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020), which vacated the provision of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014) providing that if the Service determines that a species is threatened throughout all of its range, the Service will not analyze whether the species is endangered in a significant portion of its range.

Our review of the best available scientific and commercial information indicates that the black-capped petrel meets the Act's definition of an endangered species. Therefore, we are listing the black-capped petrel as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

Conservation measures provided to species listed as endangered or threatened species under the Act include recognition as a listed species, planning and implementation of recovery actions, requirements for Federal protection, and prohibitions against certain practices. The listing of a species results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies, including the Service, and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

The recovery planning process begins with development of a recovery outline made available to the public soon after a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions while a recovery plan is being developed. Recovery teams (composed of species experts, Federal and State agencies, NGOs, and stakeholders) may be established to develop and implement recovery plans. The recovery planning process involves the identification of actions that are necessary to halt and reverse the species' decline by addressing the threats to its survival and recovery. The recovery plan identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (“downlisting”) or removal from protected status (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery outline, draft recovery plan, final recovery plan, and any revisions will be available on our website as they are completed ( https://www.fws.gov/program/endangered-species ), or from our Caribbean Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, NGOs, businesses, and private landowners. Examples of recovery actions include habitat restoration ( e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.

Once this species is listed (see DATES , above), funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and NGOs. In addition, pursuant to section 6 of the Act, the States of Georgia, North Carolina, South Carolina, and Virginia will be eligible for Federal funds to implement management actions that promote the protection or recovery of the black-capped petrel. Information on our grant programs that are available to aid species recovery can be found at: https://www.fws.gov/service/financial-assistance.

Please let us know if you are interested in participating in recovery efforts for the black-capped petrel. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 7(a)(2) states that each Federal action agency shall, in consultation with the Secretary, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Each Federal agency shall review its action at the earliest possible time to determine whether it may affect listed species or critical habitat. If a determination is made that the action may affect listed species or critical habitat, formal consultation is required (50 CFR 402.14(a)), unless the Service concurs in writing that the action is not likely to adversely affect listed species or critical habitat. At the end of a formal consultation, the Service issues a biological opinion, containing its determination of whether the Federal action is likely to result in jeopardy or adverse modification.

Examples of discretionary actions for the black-capped petrel that may be subject to consultation procedures under section 7 include management and any other habitat-altering activities on Federal waters administered by the Department of Defense or NOAA; and offshore energy activities of the BOEM and Bureau of Safety and Environmental Enforcement (BSEE).

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any species listed as an endangered species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: for scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

It is the policy of the Services, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify, to the extent known at the time a species is listed, specific activities that will not be considered likely to result in violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a final listing on proposed and ongoing activities within the range of a listed species.

At this time, we are unable to identify specific activities that would not be considered to result in a violation of section 9 of the Act beyond what is already clear from the descriptions of prohibitions or already excepted through our regulations at 50 CFR 17.21 ( e.g., any person may take endangered wildlife in defense of his own life or the lives of others). Also, as discussed above, certain activities that are prohibited under section 9 may be permitted under section 10 of the Act.

Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act if they are not authorized in accordance with applicable law; this list is not comprehensive:

(1) Unauthorized handling or collecting of the species;

(2) Discharge of contaminants into or near foraging areas; and

(3) Use of artificial lights on structures or vessels in or near foraging areas.

Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Caribbean Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of the species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available at the time of those planning efforts calls for a different outcome.

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances:

(i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;

(ii) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;

(iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;

(iv) No areas meet the definition of critical habitat; or

(v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available.

In our October 9, 2018, proposed rule (83 FR 50560), we found the designation of critical habitat for the black-capped petrel was not prudent, in accordance with 50 CFR 424.12(a)(1), because destruction of habitat is not a threat to the species in the U.S. portions of the range. However, since the publication of the proposed rule, new information provides evidence that there are threats acting on the species within areas under U.S. jurisdiction. Those threats include offshore energy development, including petroleum (oil and gas) and renewable sources (wind). These threats currently affect the species' marine habitat to a limited degree; however, those impacts are expected to increase with future offshore energy development. Accordingly, we have determined that the designation of critical habitat for the black-capped petrel is prudent.

Our regulations at 50 CFR 424.12(a)(2) state that the designation of critical habitat is not determinable when one or both of the following situations exist:

(i) Data sufficient to perform required analyses are lacking, or

(ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of “critical habitat.”

When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)).

The data sufficient to perform the required consideration of economic impacts are lacking at this time. Therefore, we conclude that the designation of critical habitat for the black-capped petrel is not determinable at this time. The Act allows the Service an additional year to publish a critical habitat designation that is not determinable at the time of listing (16 U.S.C. 1533(b)(6)(C)(ii)).

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally recognized Tribes on a government-to-government basis. In accordance with Secretary's Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We have determined that no Tribal lands fall within the boundaries of the black-capped petrel's range, so no Tribal lands would be affected by the listing of the species.

A complete list of references cited in this rulemaking is available on the internet at https://www.regulations.gov and upon request from the Caribbean Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this final rule are the staff members of the Fish and Wildlife Service's Species Assessment Team and the Caribbean Ecological Services Field Office.

Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: