Vol. 85 Thursday, No. 233 December 3, 2020

Pages 77985–78196

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 85, No. 233

Thursday, December 3, 2020

Agriculture Department Drug Enforcement Administration See Animal and Plant Health Inspection Service PROPOSED RULES See Natural Resources Conservation Service Schedules of Controlled Substances: See Rural Housing Service Temporary Placement of Brorphine in Schedule I, 78047– NOTICES 78050 Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 78113 Bulk Manufacturer of Controlled Substances Application: Janssen Pharmaceuticals, Inc., 78149 Animal and Plant Health Inspection Service NOTICES Education Department Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Agency Information Collection Activities; Proposals, Commercial Transportation of Equines for Slaughter, Submissions, and Approvals: 78113–78114 Third Party Servicer Data Collection, 78129 Meetings: Antitrust Division National Advisory Council on Indian Education, 78127 NOTICES Privacy Act; Matching Program, 78127–78129 Changes under the National Cooperative Research and Production Act: Employment and Training Administration Subcutaneous Drug Development and Delivery NOTICES Consortium, Inc., 78148–78149 Change in Status of an Extended Benefit Program: Colorado and Kentucky, 78150 Bureau of Consumer Financial Protection RULES Energy Department Advisory Opinions Policy, 77987–77991 See Federal Energy Regulatory Commission Centers for Disease Control and Prevention Environmental Protection Agency NOTICES RULES Agency Information Collection Activities; Proposals, Air Quality State Implementation Plans; Approvals and Submissions, and Approvals, 78131–78135 Promulgations: California; San Diego; Partial Approval and Partial Children and Families Administration Disapproval, 77996–77999 NOTICES Pesticide Tolerances: Agency Information Collection Activities; Proposals, Sethoxydim, 77999–78002 Submissions, and Approvals: Tolerance Exemption: Generic Clearance for Financial Reports used for ACF Adipic Acid, 78002–78005 Mandatory Grant Programs, 78135–78136 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Civil Rights Commission Promulgations: NOTICES California; Plumas County; Moderate Area Plan for the Meetings: 2012 Fine Particulate Matter National Ambient Air New York Advisory Committee, 78115–78116 Quality Standard, 78050–78058 Coast Guard Federal Aviation Administration RULES RULES Drawbridge Operations: Airworthiness Directives: Indian Creek, Miami Beach, FL, 77994 The Boeing Company Airplanes, 77991–77994 Safety Zones: NOTICES Lower Mississippi River, Natchez, MS, 77994–77996 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Commerce Department Experimental Permits for Reusable Suborbital Rockets, See International Trade Administration 78160–78161 See National Oceanic and Atmospheric Administration Limited Recreational Unmanned Aircraft Operation Applications, 78160 Community Living Administration Categorical Exclusion and Record of Decision: NOTICES Boston Harbor Seaplane Operations, MA, 78159 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Bureau of Investigation Certification of Maintenance of Effort for Title III and NOTICES Certification of Long Term Care Ombudsman Agency Information Collection Activities; Proposals, Program Expenditures, 78136 Submissions, and Approvals: Title III Supplemental Form to Financial Status Report, Final Disposition Report with Supplemental Questions, 78136–78137 78149–78150

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Federal Communications Commission Interior Department RULES See Fish and Wildlife Service Accelerating Wireless and Wireline Deployment by See National Park Service Streamlining Local Approval of Wireless Infrastructure NOTICES Modifications, 78005–78018 Agency Information Collection Activities; Proposals, All-Digital AM Broadcasting, Revitalization of the AM Submissions, and Approvals: Radio Service, 78022–78028 Watercraft Inspection Decontamination Regional Data- Implementing Kari’s Law and RAY BAUM’S Act; Inquiry sharing for Trailered Boats, 78146–78147 Concerning 911 Access, Routing, and Location in Enterprise Communications Systems; Amending the International Trade Administration Definition of Interconnected VoIP Service, 78018– NOTICES 78022 Antidumping or Countervailing Duty Investigations, Orders, Reexamination of the Comparative Standards and or Reviews: Procedures for Licensing Noncommercial Educational Certain Aluminum Foil from the Sultanate of Oman and Broadcast Stations and Low Power FM Stations, the Republic of Turkey, 78121–78122 78028–78029 Certain Oil Country Tubular Goods from the People’s Republic of China, 78117–78118 Federal Election Commission Multilayered Wood Flooring from the People’s Republic NOTICES of China, 78118–78121 Meetings: Sunshine Act, 78130 Silicon Metal from the Republic of Kazakhstan, 78122– 78123 Federal Energy Regulatory Commission Standard Steel Welded Wire Mesh from Mexico, 78124– NOTICES 78126 Application: Decision on Application for Duty-Free Entry of Scientific Northern Indiana Public Service Co., 78129–78130 Instruments: Rice University, et.al, 78116–78117 Federal Reserve System NOTICES Justice Department Change in Bank Control: See Antitrust Division Acquisitions of Shares of a Bank or Bank Holding See Drug Enforcement Administration Company, 78130–78131 See Federal Bureau of Investigation Fish and Wildlife Service RULES Labor Department Endangered and Threatened Species: See Employment and Training Administration Eleven Species Not Warranted for Listing, 78029–78038 NOTICES National Foundation on the Arts and the Humanities Agency Information Collection Activities; Proposals, See Institute of Museum and Library Services Submissions, and Approvals: Federal Fish and Wildlife Permit Applications and National Highway Traffic Safety Administration Reports—Native Endangered and Threatened Species, PROPOSED RULES 78143–78145 Framework for Automated Driving System Safety, 78058– Endangered and Threatened Species: 78075 Recovery Permit Applications, 78145–78146

Food and Drug Administration National Institutes of Health NOTICES NOTICES Meetings: Meetings: Vaccines and Related Biological Products Advisory Center for Scientific Review, 78139 Committee, 78137–78139 National Institute on Aging, 78139

Health and Human Services Department National Oceanic and Atmospheric Administration See Centers for Disease Control and Prevention RULES See Children and Families Administration Fisheries of the Exclusive Economic Zone off Alaska: See Community Living Administration Pacific Cod in the Bering Sea and Aleutian Islands, See Food and Drug Administration 78038–78045 See National Institutes of Health PROPOSED RULES Fisheries of the Exclusive Economic Zone off Alaska: Homeland Security Department Bering Sea and Aleutian Islands; Proposed 2021 and 2022 See Coast Guard Harvest Specifications for Groundfish, 78096–78112 See U.S. Customs and Border Protection Gulf of Alaska; Proposed 2021 and 2022 Harvest Specifications for Groundfish, 78076–78096 Institute of Museum and Library Services NOTICES National Park Service Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: National Register of Historic Places: Museums for All, 78150–78151 Pending Nominations and Related Actions, 78147–78148

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Natural Resources Conservation Service Surface Transportation Board NOTICES PROPOSED RULES Meetings: Review of Commodity, Boxcar, and TOFC/COFC Natural Resources Conservation Service Programs and Exemptions, 78075 Western Water Quantity, 78114–78115 Voluntary Arbitration Program for Small Rate Disputes, 78075–78076 Nuclear Regulatory Commission PROPOSED RULES Transportation Department Enforcement Policy, 78046 See Federal Aviation Administration See National Highway Traffic Safety Administration Personnel Management Office See Pipeline and Hazardous Materials Safety NOTICES Administration Agency Information Collection Activities; Proposals, Submissions, and Approvals: Questionnaire for Public Trust Positions and U S International Development Finance Corporation Supplemental Questionnaire for Selected Positions, NOTICES 78151–78152 Public Hearing: Board of Directors, 78126 Pipeline and Hazardous Materials Safety Administration RULES U.S. Customs and Border Protection Hazardous Materials: NOTICES Harmonization with International Standards, 78029 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Postal Regulatory Commission Bonded Warehouse Proprietor’s Submission, 78140– NOTICES 78141 New Postal Products, 78152 Create/Update Importer Identity Form, 78142–78143 Notice of Detention, 78141–78142 Presidential Documents Transportation Entry and Manifest of Goods Subject to PROCLAMATIONS CBP Inspection and Permit, 78139–78140 Special Observances: National Impaired Driving Prevention Month (Proc. 10122), 78191–78194 World AIDS Day (Proc. 10123), 78195–78196 Separate Parts In This Issue

Rural Housing Service Part II RULES Social Security Administration, 78164–78189 Guaranteed Rural Rental Housing: Change in Initial Guarantee Fee and Annual Guarantee Part III Fee, 77985–77987 Presidential Documents, 78191–78196 Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Reader Aids ICE Clear Credit, LLC, 78157–78159 Consult the Reader Aids section at the end of this issue for LCH SA, 78153–78157 phone numbers, online resources, finding aids, and notice New York Stock Exchange, LLC, 78157 of recently enacted public laws. To subscribe to the Federal Register Table of Contents Social Security Administration electronic mailing list, go to https://public.govdelivery.com/ RULES accounts/USGPOOFR/subscriber/new, enter your e-mail Revised Medical Criteria for Evaluating Musculoskeletal address, then follow the instructions to join, leave, or Disorders, 78164–78189 manage your subscription.

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CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

3 CFR Proclamations: 10122...... 78193 10123...... 78195 7 CFR 3565...... 77985 10 CFR Proposed Rules: Ch. I ...... 78046 12 CFR Ch. X...... 77987 14 CFR 39...... 77991 20 CFR 404...... 78164 416...... 78164 21 CFR Proposed Rules: 1308...... 78047 33 CFR 117...... 77994 165...... 77994 40 CFR 52...... 77996 180 (2 documents) ...... 77999, 78002 Proposed Rules: 52...... 78050 47 CFR 1...... 78005 9...... 78018 73 (2 documents) ...... 78022, 78028 49 CFR 171...... 78029 172...... 78029 173...... 78029 174...... 78029 175...... 78029 176...... 78029 178...... 78029 180...... 78029 Proposed Rules: 571...... 78058 1039...... 78075 1108...... 78075 50 CFR 17...... 78029 679...... 78038 Proposed Rules: 679 (2 documents) ...... 78076, 78096

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Rules and Regulations Federal Register Vol. 85, No. 233

Thursday, December 3, 2020

This section of the FEDERAL REGISTER guarantees. See 42 U.S.C. 1490p–2(g). will not adopt this comment to establish contains regulatory documents having general The charged fees are required to be used a maximum limit on the annual fee applicability and legal effect, most of which to offset costs associated with loan amount as the intention of this are keyed to and codified in the Code of guarantees. ID at 1490p–2(u). regulation change is to offer flexibility Federal Regulations, which is published under The Agency’s GRRHP implementing in adjusting fees each year. This 50 titles pursuant to 44 U.S.C. 1510. regulation is at 7 CFR part 3565 and regulatory action will adopt the process The Code of Federal Regulations is sold by currently sets the exact percentage of of announcing the amount of fees the Superintendent of Documents. the initial guarantee fee and the annual charged through a published notice in guarantee fee charged by the Agency. the Federal Register, consistent with The Agency is proposing to amend the other RD programs, including the DEPARTMENT OF AGRICULTURE regulation by removing the language OneRD Guarantee Loan regulation. that indicates the specific amount of the Therefore, RHS is moving forward with Rural Housing Service initial guarantee fee and the annual finalizing this rule. guarantee fee currently charged by the Executive Order 12866—Classification 7 CFR Part 3565 Agency. The Agency is making this [Docket No. RHS–20–MFH–0027] change to allow for flexibility and to This final rule has been determined to allow the program to create the be non-significant and; therefore, was RIN 0575–AD15 maximum housing affordability to not reviewed by the Office of Guaranteed Rural Rental Housing residents by lowering program costs Management and Budget (OMB) under Change in Initial Guarantee Fee and when practical. In most cases, the Executive Order 12866. Annual Guarantee Fee annual guarantee fee is passed onto the Authority borrower, where it is most likely AGENCY: Rural Housing Service, USDA. included in the interest rate. Thus, any The GRRHP is administered subject to ACTION: Final rule. reduction in the fee will result in a appropriations by the United States lower interest rate and would ultimately Department of Agriculture (USDA) as SUMMARY: The Rural Housing Service create a reduction in rental rates. authorized under the Housing Act of (RHS or the Agency) published a The calculation of the initial 1949 as amended, Section 538, Public proposed rule, September 3, 2019, guarantee fee is the product of the Law 106–569, 42 U.S.C. 1490p–2. proposing to amend its regulation to percentage of the guarantee times the Environmental Impact Statement remove the stated amount that the initial principal amount of the Agency will charge for the initial and This document has been reviewed in guaranteed loan times the Guarantee Fee accordance with 7 CFR part 1970, annual guarantee fees. The regulation Rate. The initial guarantee fee will be change will allow the Agency the subpart A, ‘‘Environmental Policies.’’ due at the time the closing package is RHS determined that this action does flexibility to establish or make any submitted to the Agency for review and future changes to the initial and annual not constitute a major Federal action approval. The GRRHP annual fee is a significantly affecting the quality of the guarantee fees without the need for a non-refundable amount that the lender regulatory change. Through this action, environment. In accordance with the must pay the year that the loan closes National Environmental Policy Act of RHS finalizes the proposed rule without and going forward each year that the any substantive revisions. 1969, Public Law 91–190, an loan guarantee remains in effect. Environmental Impact Statement is not DATES: Effective January 4, 2021. If changes do occur in the fee required. FOR FURTHER INFORMATION CONTACT: amounts, the Agency will release those Abby Boggs, Acting Branch Chief, changes through a Notice in the Federal Regulatory Flexibility Act Multi-Family Housing Programs, Rural Register. When the fee changes are The rule has been reviewed with Housing Service, United States announced in the Federal Register, the regard to the requirements of the Department of Agriculture, 1400 Agency will provide guidance on how Regulatory Flexibility Act (5 U.S.C. Independence Avenue SW, Washington, to process the loans which will be 601–612). The undersigned has DC 20250–0781, Telephone: (615) 490– impacted by the new fee structure. determined and certified by signature 1371 (this is not a toll-free number); Interested parties will be able to locate on this document that this rule will not email: [email protected]. current fees on the Agency’s public have a significant economic impact on SUPPLEMENTARY INFORMATION: website. a substantial number of small entities The Agency published a proposed since this rulemaking action does not Background and Summary of Changes rule on September 3, 2019 at 84 FR involve a new or expanded program nor RHS administers the Section 538 45927–45929, proposing to amend its does it require any more action on the Guaranteed Rural Rental Housing regulation to remove the stated amount part of a small business than required of Program (GRRHP) under the authority of that the Agency will charge for the a large entity. the Housing Act of 1949, as amended initial and annual guarantee fees. Three (42 U.S.C. 1490p–2). Under the GRRHP, comments were received. Two Executive Order 13132—Federalism RHS guarantees loans for the commenters were in full support of the The policies contained in this rule do development of housing and related rule change. One commenter supports not have any substantial direct effect on facilities in rural areas. Section 538(g) the rule; however, they suggested that States, on the relationship between the authorizes the Secretary of Agriculture the Agency establish a maximum limit National Government and the States, or to charge certain fees to lenders for loan on the annual fee amount. The Agency on the distribution of power and

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responsibilities among the various E-Government Act Compliance activity conducted or funded by USDA levels of Government. This rule does not RHS is committed to complying with (not all bases apply to all programs). impose substantial direct compliance the E-Government Act by promoting the Remedies and complaint filing costs on State and local Governments; use of the internet and other deadlines vary by program or incident. therefore, consultation with States is not Information Technologies in order to Persons with disabilities who require required. provide increased opportunities for alternative means of communication for citizen access to Government program information (e.g., Braille, large Executive Order 12988—Civil Justice information, services, and other print, audiotape, American Sign Reform purposes. Language, etc.) should contact the responsible Agency or USDA’s TARGET This rule has been reviewed under Programs Affected Center at (202) 720–2600 (voice and Executive Order 12988. In accordance The program affected by this TTY) or contact USDA through the with this rule: (1) Unless otherwise regulation is listed in the Catalog of Federal Relay Service at (800) 877–8339. specifically provided, all State and local Federal Domestic Assistance under Additionally, program information may laws that conflict with this rule will be numbers 10.438—Rural Rental Housing be made available in languages other preempted; (2) no retroactive effect will Guaranteed Loans (Section 538). than English. be given to this rule except as To file a program discrimination Executive Order 13175, Consultation specifically prescribed in the rule; and complaint, complete the USDA Program and Coordination With Indian Tribal (3) administrative proceedings of the Discrimination Complaint Form, AD– Governments National Appeals Division of USDA (7 3027, found online at http:// CFR part 11) must be exhausted before This executive order imposes www.ascr.usda.gov/complaint_filing_ bringing suit in court that challenges requirements on RHS in the cust.html and at any USDA office or action taken under this rule. development of regulatory policies that write a letter addressed to USDA and have tribal implications or preempt provide in the letter all of the Unfunded Mandate Reform Act tribal laws. RHS has determined that the information requested in the form. To (UMRA) rule does not have a substantial direct request a copy of the complaint form, Title II of the UMRA, Public Law 104– effect on one or more Indian tribe(s) or call (866) 632–9992, submit your on either the relationship or the 4, establishes requirements for Federal completed form or letter to USDA by: distribution of powers and Agencies to assess the effects of their (1) Mail: U.S. Department of responsibilities between the Federal regulatory actions on State, local, and Agriculture, Director, Office of Government and Indian tribes. Thus, Adjudication, 1400 Independence tribal Governments and on the private this rule is not subject to the sector. Under section 202 of the UMRA, Avenue SW, Washington, DC 20250– requirements of Executive Order 13175. 9410; Federal Agencies generally must If tribal leaders are interested in prepare a written statement, including (2) Fax: (202) 690–7442; or consulting with RHS on this rule, they (3) Email: [email protected]. cost-benefit analysis, for proposed and are encouraged to contact USDA’s Office Final Rules with ‘‘Federal mandates’’ USDA is an equal opportunity of Tribal Relations or Rural provider, employer, and lender. that may result in expenditures to State, Development’s Native American local, or tribal Governments, in the Coordinator at: [email protected] to List of Subjects in 7 CFR 3565 aggregate, or to the private sector, of request such a consultation. Conflict of interest, Credit, Fair $100 million or more in any one-year. housing, Loan programs—housing and When such a statement is needed for a Executive Order 12372— Intergovernmental Consultation community development, Low and rule, section 205 of the UMRA generally moderate-income housing, requires a Federal Agency to identify These loans are subject to the Manufactured homes, Mortgages, Rent and consider a reasonable number of provisions of Executive Order 12372, subsidies, Reporting and recordkeeping regulatory alternatives and adopt the which require intergovernmental requirements, Rural areas. least costly, more cost-effective, or least consultation with State and local For the reasons set forth in the burdensome alternative that achieves officials. RHS conducts intergovernmental consultations for preamble, RHS amends 7 CFR part 3565 the objectives of the rule. This rule as follows: contains no Federal mandates (under each loan in accordance with 2 CFR part the regulatory provisions of title II of the 415, subpart C. PART 3565—GUARANTEED RURAL UMRA) for State, local, and tribal Non-Discrimination Statement RENTAL HOUSING PROGRAM Governments or for the private sector. In accordance with Federal civil Therefore, this rule is not subject to the ■ 1. The authority citation for part 3565 rights law and the United States requirements of sections 202 and 205 of continues to read as follows: Department of Agriculture civil rights the UMRA. regulations and policies, the USDA, its Authority: 5 U.S.C. 301; 7 U.S.C. 1989; 42 U.S.C. 1480. Paperwork Reduction Act Agencies, offices, employees, and institutions participating in or Subpart B—Guarantee Requirements The information collection administering USDA programs are requirements contained in this prohibited from discriminating based on ■ 2. Amend § 3565.53 by adding a regulation have been approved by OMB race, color, national origin, religion, sex, sentence at the end of the introductory and have been assigned OMB control gender identity (including gender text and revising paragraphs (a) and (b) number 0575–0189. This final rule expression), sexual orientation, to read as follows: contains no new reporting and disability, age, marital status, familial/ recordkeeping requirements that would parental status, income derived from a § 3565.53 Guarantee fees. require approval under the Paperwork public assistance program, political * * * Changes to the initial and Reduction Act of 1995 (44 U.S.C. beliefs, or reprisal or retaliation for prior annual guarantee fees will be Chapter 35). civil rights activity, in any program or established by the Agency and will be

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published in a notice in the Federal advisory opinion program (Pilot feedback received from external Register. Advisory Opinions program).1 This stakeholders in the 2018 Guidance RFI, (a) Initial guarantee fee. The Agency notice finalizes the Advisory Opinions encouraging the Bureau to provide will establish and charge an initial Proposal as the Advisory Opinions written guidance in cases of regulatory guarantee fee of up to one percent of the Policy (Advisory Opinions Policy). Part uncertainty. The final Advisory guarantee amount. For purposes of I provides some background on the Opinions Policy supersedes the pilot calculating this fee, the guarantee Bureau’s guidance functions and related Advisory Opinions Program.7 Similar to amount is the product of the percentage statutory authorities. Part II sets out the the advisory opinion programs of many of the guarantee times the initial final text of the Advisory Opinions other federal agencies, the Advisory principal amount of the guaranteed Policy. Part III reviews the comments Opinions Policy is intended to facilitate loan. received on the Advisory Opinions timely guidance by the Bureau that (b) Annual guarantee fee. An annual Proposal and describes the changes the enables compliance by resolving guarantee fee will be charged, as Bureau has made in the final Advisory outstanding regulatory uncertainty. The established by the Agency, each year or Opinions Policy. Parts IV through VI Advisory Opinions Policy supports the portion of a year that the guarantee is in address additional regulatory matters. Bureau’s statutory purpose of ensuring effect. This fee is due no later than I. Background consumers have access to markets for February 28, of each calendar year. consumer financial products and Under the Dodd-Frank Wall Street * * * * * services, and that markets for consumer Reform and Consumer Protection Act financial products and services are fair, Elizabeth Green, (Dodd-Frank Act),23 the Bureau’s transparent, and competitive.8 Acting Administrator, Rural Housing Service. ‘‘primary functions’’ include issuing [FR Doc. 2020–25822 Filed 12–2–20; 8:45 am] guidance implementing Federal II. Final Text of the Advisory Opinions BILLING CODE 3410–XV–P consumer financial law. Providing clear Policy and useful guidance to regulated entities is an important aspect of facilitating A. Overview BUREAU OF CONSUMER FINANCIAL markets that serve consumers. The Bureau currently issues several The primary purpose of this Advisory PROTECTION types of guidance regarding the statutes Opinions Policy is to establish procedures to facilitate the submission 12 CFR Chapter X that it administers, as well as implementing regulations and Official by interested parties of requests that the [Docket No. CFPB–2020–0019] Interpretations. For example, the Bureau Bureau issue advisory opinions and the issues ‘‘Compliance Aids’’ that present manner in which the Bureau will Advisory Opinions Policy legal requirements in a manner that is evaluate and respond to such requests. Advisory opinions will be interpretive AGENCY: Bureau of Consumer Financial useful for compliance professionals, rules issued to resolve regulatory Protection. other industry stakeholders, and the uncertainty.9 ACTION: Procedural rule. public, or that include practical suggestions for how entities might B. Submission and Content of Requests SUMMARY: The Bureau of Consumer choose to comply with those Financial Protection (Bureau) is issuing requirements.4 The Bureau also Requests for advisory opinions should its final Advisory Opinions Policy provides individualized be submitted via email to (Advisory Opinions Policy), which sets ‘‘implementation support’’ to regulated [email protected] or through forth procedures to facilitate the entities through its Regulatory Inquiries other means designated by the Bureau. submission by interested parties of Function (RIF).5 Neither Compliance The Bureau will not consider a request requests that the Bureau issue advisory Aids nor the RIF are intended to for an advisory opinion to be complete opinions, in the form of interpretive interpret ambiguities in legal unless the request includes all of the rules, to resolve regulatory uncertainty, requirements. The Bureau also may information specified in the following and the manner in which the Bureau issue interpretive rules, which provide paragraphs. will evaluate and respond to such guidance on the Bureau’s regulations or 1. Confidential information: The requests. governing statutes, and which in some request must identify information the situations may provide a safe harbor to requestor believes should be treated as DATES: The Advisory Opinions Policy regulated entities that are in compliance was applicable beginning November 30, 6 confidential. If the requestor would not with the Bureau’s interpretive rule. normally make the information public, 2020. The Bureau initiated its policy for the Bureau intends to withhold that FOR FURTHER INFORMATION CONTACT: For issuing advisory opinions in response to additional information about the information from public disclosure to the extent permitted by the Freedom of Advisory Opinions Policy contact 1 See Advisory Opinions Pilot, 85 FR 37394 (June Jaydee DiGiovanni and Shelley 22, 2020). Information Act, 5 U.S.C. 552(b), and Thompson, Counsels; and Adetola 2 Public Law 111–203, 124 stat. 2081 (2010). treat the information as confidential in 3 Adenuga, Regulatory Implementation See 12 U.S.C. 5511(c)(5). accordance with the Bureau’s 4 See Policy Statement on Compliance Aids, 85 regulations on Disclosure of Records and Guidance Specialist, at 202–435– FR 4579 (Jan. 27, 2020). 7158. If you require this document in an 5 See Bureau of Consumer Financial Protection 7 Because the Advisory Opinions Policy replaces alternative electronic format, please Request for Information Regarding Bureau Guidance the pilot, no further requests may be submitted for and Implementation Support (Guidance RFI), 83 FR contact [email protected]. the pilot as of November 30, 2020. Requests 13959, 13961–62 (Apr. 2, 2018). submitted under the pilot that are pending as of that SUPPLEMENTARY INFORMATION: On June 6 E.g., Treatment of Pandemic Relief Payments date will continue to be considered by the Bureau. 22, 2020, the Bureau published and Under Regulation E and Application of the 8 sought public comment on a proposal Compulsory Use Prohibition, 85 FR 23217 (Apr. 27, See 12 U.S.C. 5511(a). 9 For convenience, this document uses the term (Advisory Opinions Proposal) for a new 2020); Truth in Lending (Regulation Z); Screening and Training Requirements for Mortgage Loan ‘‘regulatory uncertainty’’ to encompass uncertainty Bureau policy on advisory opinions and Originators with Temporary Authority, 84 FR 63791 with respect to regulatory or, where applicable, simultaneously launched a pilot (Nov. 19, 2019). statutory provisions.

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and Information.10 Requests should not uncertainty or ambiguity.12 Requestors requestor’s situation do not conform to include sensitive personal information, may also choose to offer additional the summary of material facts. such as account numbers or Social information, including, as applicable, an If a statutory safe harbor is applicable Security numbers, or names of explanation of the potential consumer to an advisory opinion, the advisory individuals. benefits and risks associated with opinion will explain that fact. The Truth 2. Identity of person or entity seeking resolution of the interpretive question in Lending Act (TILA), Equal Credit the advisory opinion. The request must and the proposed interpretation; and an Opportunity Act (ECOA), Electronic identify the person or entity seeking the explanation of how the proposed Fund Transfer Act (EFTA), and Real advisory opinion, as well as the identity interpretation relates to the Bureau’s Estate Settlement Procedures Act of any person or entity submitting the statutory objectives.13 (RESPA) provide certain protections request on behalf of a third party (i.e., Alternatively, in some cases the from liability for acts or omissions done one or more clients or members). Bureau may decide to issue an advisory in good faith in conformity with an 17 Outside counsel, a trade association, or opinion based on questions the Bureau interpretation by the Bureau. The Fair a consumer advocacy group, for receives from the public, through other Debt Collection Practices Act (FDCPA) example, may submit requests for channels, that are not requests for contains similar protections, specifically 18 advisory opinions on behalf of one or advisory opinions.14 using the term ‘‘advisory opinion.’’ more clients or members, and those C. Characteristics of Advisory Opinions D. Factors in Bureau Selection of Topics entities do not need to be identified. for Advisory Opinions Advisory Opinions issued by the 3. Statement about the absence of Bureau under the Advisory Opinions The Bureau intends to consider the investigation or litigation. The request Policy will be interpretive rules under following factors as part of its must include a statement that the issue the Administrative Procedure Act consideration of whether to address on which the advisory opinion is being 19 (APA) 15 that respond to a specific need requests for advisory opinions. The requested is—or is not—the subject of for clarity on a statutory or regulatory Bureau will prioritize open questions if any known or reasonably knowable interpretive question. The Bureau will they are within the Bureau’s purview active litigation or Federal or State publish advisory opinions in the that can legally be addressed through an agency investigation. Additionally, if Federal Register and on interpretive rule and if an advisory the requestor is submitting a request on consumerfinance.gov, including a opinion is an appropriate tool relative to behalf of an unidentified third party, the summary of the material facts or other Bureau tools for answering the requestor must provide a statement that covered products and the Bureau’s legal question. Initial factors weighing for the the unidentified third party is—or is analysis of the issue. appropriateness of an advisory opinion not—the subject of an ongoing public Unless otherwise stated, each include: (1) The interpretive issue has Bureau enforcement action or an advisory opinion will be applicable to been noted during prior Bureau ongoing Bureau enforcement the requestor and to similarly situated examinations as one that might benefit investigation. parties to the extent that their situations from additional regulatory clarity; (2) 4. Specifics about the issue on which conform to the summary of material the issue is one of significant the advisory opinion is sought. The facts or coverage in the advisory importance or one whose clarification issue raised in the request must be opinion. The scope and terms of an would provide significant benefit; and/ within the Bureau’s purview,11 and the advisory opinion will be set out in the or (3) the issue concerns an ambiguity request must concern actual facts or a advisory opinion itself, and may deviate that the Bureau has not previously course of action that the requestor (or from the interpretation proposed by the addressed through an interpretive rule third party) is engaged in, or requestor in its submission.16 Moreover, or other authoritative source. Factors considering engaging in. The request the Bureau will not normally investigate weighing strongly for presumption that must set forth as completely as possible, the underlying facts of the requestor’s an advisory opinion is not an all material facts and circumstances, situation and, as a result, an advisory appropriate tool include: (1) The including detailed specification of the opinion may not be applicable to the interpretive issue is the subject of an legal question(s) and supporting facts requestor if the underlying facts of the ongoing Bureau investigation or with respect to which the requestor enforcement action; (2) the interpretive seeks an advisory opinion. The request 12 The responsive advisory opinion will not issue is the subject of an ongoing or must also identify the regulatory or necessarily adopt the requestor’s proposed planned rulemaking; (3) the issue is statutory provision at issue and the interpretation. The Bureau retains the discretion to better suited for notice-and-comment answer requests with its own interpretation rulemaking; (4) the issue could be potential uncertainty or ambiguity that regardless of the requestor’s proposed the proposed interpretation would interpretation. addressed more effectively through a address, provide a proposed 13 Requestors should describe relevant legal Compliance Aid or the RIF function; or interpretation of law or regulation, and provisions and arguments with as much specificity (5) there is clear existing Bureau or explain why the proposed interpretation as practicable. The Bureau recognizes that in some court precedent that is available to the cases, the requestor may lack the legal resources to public on the issue. is an appropriate resolution of that provide a detailed and complete showing. In such circumstances, the requestor should provide the The Bureau intends to further 10 12 CFR part 1070. maximum specification practicable under the evaluate requests for advisory opinions 11 Under title X of the Dodd-Frank Act (the circumstances and explain the limits on further Consumer Financial Protection Act of 2010), the specification. 17 See 15 U.S.C. 1640(f) (TILA); 15 U.S.C. Bureau was created to regulate the offering and 14 In that situation, references in this Advisory 1691e(e) (ECOA); 15 U.S.C. 1693m(d) (EFTA); 12 provision of consumer financial products and Opinions Policy to the requestor or request are U.S.C. 2617, 12 CFR 1024.4 (RESPA). services under federal consumer financial laws. 12 inapplicable. Note that the Bureau may also issue 18 See 15 U.S.C. 1692(k)(e). U.S.C. 5881. The Act enumerates several consumer interpretive rules outside the framework of the 19 The following are factors that the Bureau laws under the Bureau’s jurisdiction (in part or Advisory Opinions Policy, including deciding to intends to weigh when deciding which topics to whole). 12 U.S.C. 5841(12). Note that the Bureau’s issue advisory opinions on its own initiative. prioritize in the Advisory Opinions Policy, based Regulation J provides a separate procedure for 15 5 U.S.C. 553(b). on all of the information available to the Bureau. advisory opinions regarding certain issues under 16 Thus, the initial request drafted by the Advisory opinion requests need not address these the Interstate Land Sales Full Disclosure Act. See requestor is not necessarily a reliable guide to the factors in order to be fully considered by the 12 CFR 1010.17. scope and terms of the advisory opinion. Bureau.

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based on secondary factors, including: E. Public Input that will prevent consumer harm. If an Alignment with the Bureau’s statutory Advisory opinions will be issued and advisory opinion makes clear the law objectives; size of the benefit offered to final upon publication in the Federal does not apply, it will avoid regulated consumers by resolution of the Register. However, interested persons entities incurring unnecessary interpretive issue; known impact on the may provide input on published compliance costs. actions of other regulators; and impact advisory opinions at any time by C. Legality of Advisory Opinions Policy on available Bureau resources. The sending an email to advisoryopinion@ The consumer advocacy group Bureau will primarily focus on the cfpb.gov or through other means comments stated that issuing following statutory objectives: (1) designated by the Bureau. The Bureau is interpretive rules in the form of Consumers are provided with timely particularly interested in input that addresses whether an advisory opinion advisory opinions are inconsistent with and understandable information to the APA and with the Bureau’s statutory make responsible decisions about would benefit from clarification or reconsideration, with information about authorities. The Bureau disagrees with financial transactions; (2) outdated, this assertion. As proposed, the advisory unnecessary, or unduly burdensome the factual or legal basis for clarification or reconsideration. opinions are interpretive rules under the regulations are regularly identified and APA.22 Nevertheless, the Bureau revised addressed in order to reduce III. Discussion of Comments and the phrase in the proposed Advisory unwarranted regulatory burdens; (3) Changes in the Final Advisory Opinions Opinions Policy that states that Federal consumer financial law is Policy ‘‘substantive importance or impact’’ is enforced consistently, without regard to A. Overview one of a list of factors that the Bureau the status of a person as a depository intends to consider in part II.D so that institution, in order to promote fair The Bureau solicited comments on it reads ‘‘significant importance.’’ This competition; and (4) markets for the Advisory Opinions Proposal. The change is intended to address the Bureau received 16 unique comments, consumer financial products and commenter’s concern that the phrase 13 of which were submitted by industry services operate transparently and might be read to suggest that the Bureau trade associations. A consortium of 7 intends to issue advisory opinions that efficiently to facilitate access and consumer advocacy groups submitted a innovation.20 are substantive rules rather than joint comment letter. The remaining interpretive rules under the APA. The Bureau will focus primarily on comments were provided by staff of the clarifying ambiguities in its regulations, Administrative Conference of the D. Role of Public Input although Advisory Opinions may clarify United States (ACUS) and one The Bureau received a number of statutory ambiguities. The Bureau will anonymous submitter. The Bureau has comments from stakeholders expressing not issue advisory opinions on issues made certain changes to the Advisory interest in a mechanism for soliciting that require, or are better addressed Opinions Policy based on the public input on advisory opinions, through, a legislative rulemaking under comments, as discussed below, as well either before or after issuance. Some the APA.21 For example, the Bureau as other changes to the Advisory commenters advocated that the Bureau does not intend to issue an advisory Opinions Policy for clarity. obtain such input from the public before opinion that would change regulation B. General Comments issuing advisory opinions. The Bureau text or commentary. Similarly, if a notes that there is nothing in the Industry commenters uniformly Advisory Opinions Policy that would regulation or statute establishes a supported the Advisory Opinions general standard that can only be prevent the Bureau from soliciting input Proposal, as did the anonymous on a draft advisory opinion before applied through highly fact-intensive commenter. These commenters analysis, the Bureau does not intend to finalizing, if the Bureau believes it generally stated that the issuance by the would be appropriate for a given replace that analysis with a bright-line Bureau of advisory opinions could aid standard that eliminates all of the advisory opinion. However, the Bureau in compliance in situations where there declines to adopt this as a uniform required analysis. Highly fact-intensive are statutory and regulatory applications of general standards, such requirement for advisory opinions. Such uncertainties. Conversely, the joint a process is not typical of peer financial as the statutory prohibition on unfair, comment letter by certain consumer regulators’ advisory opinion policies.23 deceptive, or abusive acts or practices, advocacy groups generally opposed the It could unnecessarily delay the process pose particular challenges for issuing Advisory Opinions Proposal and argued of issuing advisory opinions, and thus advisory opinions, although there may that the Bureau should abandon it. The inhibit the ability of the Bureau to be times when the Bureau is able to Bureau has carefully considered this promptly provide clarity about its own offer advisory opinions that provide comment letter, but contrary to the regulations and the statutes that it additional clarity on the meaning of group’s assertions, and as discussed administers. such standards. below the Bureau concludes that issuing However, the Bureau does agree that interpretive rules in the form of providing a mechanism for the public to 20 See 12 U.S.C. 5511(b)(1), (3)–(5). The Bureau advisory opinions is consistent with the provide feedback after an advisory has a further statutory objective, that consumers are APA or with the Bureau’s statutory opinion is issued could be useful. protected from unfair, deceptive, or abusive acts authorities. The Bureau also does not Accordingly, the Bureau has added new and practices and from discrimination. 12 U.S.C. agree that advisory opinions are not an 5511(b)(2). The Bureau considers this objective to part II.E to the Advisory Opinions be at least as important as its other objectives, and appropriate use of Bureau resources. Policy to provide that any person may it does not plan to issue an advisory opinion that Advisory opinions represent a comment on an advisory opinion via is in conflict with this objective. But because other commitment of resources by the Bureau email to [email protected] or regulatory tools are often more suitable for that will help entities better understand through other means designated by the addressing UDAAPs and discrimination, the Bureau their obligations under Federal has chosen not to highlight this objective as a primary focus when selecting issues for the consumer financial law. If an advisory 22 See 5 U.S.C. 552(b)(3). Advisory Opinions Policy. opinion makes clear the law applies, it 23 E.g., 16 CFR 1.2–1.6 (Federal Trade 21 5 U.S.C. 553(b). will promote compliance with the law Commission).

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Bureau. The Bureau encourages any if the requestor is submitting a request H. Rescission of Advisory Opinions stakeholders including, but not limited on behalf of an unidentified third party, to, industry representatives and the requestor must provide a statement It is, of course, possible that the consumer advocates, to submit such on whether the unidentified third party Bureau may decide it is appropriate to feedback in an instance where is the subject of an ongoing public rescind an advisory opinion. One stakeholders believe the Bureau should Bureau enforcement action or an commenter emphasized that, if an clarify or reconsider an advisory ongoing Bureau enforcement advisory opinion is rescinded, no action opinion. investigation conducted by the Bureau’s should be taken against those Office of Enforcement.24 This statement institutions who acted in good faith in E. Accuracy of Requests was in addition to the general accordance with the advisory opinion. Certain consumer advocacy group requirement that any requestor provide The Bureau notes that several statutes commenters expressed concern that the a statement of whether the issue on provide protections from liability for requestor’s presentation of the issue which the advisory opinion is being acts or omissions done in good faith in might be inaccurate or misleading. requested is the subject of any known or conformity with an interpretation by the However, the Bureau emphasizes that it reasonably knowable active litigation or Bureau, as detailed in the text of the expects requestors to provide truthful Federal or State agency investigations. Advisory Opinions Policy. And of submissions to the Bureau. While it is Trade association commenters generally course, in addition to any applicable possible that the submitting party may supported the Bureau’s proposal to safe harbors, the Bureau would not provide inaccurate or misleading facts, allow third parties to request advisory expect to retroactively impose doing so would put at great risk the opinions. These commenters stated that punishments on persons who benefit the requester might obtain from allowing third parties to facilitate conformed their conduct in good faith to an advisory opinion. The Advisory requests would increase access to an advisory opinion before the advisory Opinions Policy specifically explains advisory opinions, in particular for opinion was rescinded. Doing so would that ‘‘an advisory opinion may not be smaller entities that might otherwise raise serious concerns under the Due applicable to the requestor if the lack the resources to request an advisory Process Clause, which restricts such underlying facts of the requestor’s opinion. retroactive relief. situation do not conform to the Bureau’s Certain consumer advocacy groups summary of material facts’’ in the opposed the proposal to allow requests I. Confidentiality of Material in Advisory advisory opinion. The Bureau concludes on behalf of third parties. These Opinion Requests that this disincentive is sufficient to commenters argued that the Bureau address the concern commenters have would have insufficient details about Part II.B of the Advisory Opinions raised. For the same reason, the Bureau the underlying facts of the third party’s Proposal explained that where does not believe it is necessary to situation. The Bureau agrees that it is information submitted to the Bureau is require requestors to include an possible for requests on behalf of a third information the requestor would not affirmation that the information party, like any type of request, to normally make public, the Bureau provided is accurate, as some include insufficient facts for the Bureau intends to treat it as confidential commenters suggested. to reach a legal conclusion. However, pursuant to its rule, Disclosure of that would be a potential reason for Records and Information, to the extent F. Follow-Up by Requestors 26 denying an individual request, not applicable. Some commenters asked the Bureau entirely closing off this potential source Industry commenters were broadly to provide a mechanism for requestors of requests for advisory opinions. supportive of this approach. However, to modify or rescind pending advisory These commenters also asserted that certain consumer advocacy groups opinion requests. The Bureau notes that the Bureau must know the identity of asserted that this statement is in tension it would be consistent with the the third party in order to avoid with the Freedom of Information Act Advisory Opinions Policy for a interference with litigation or (FOIA). To be clear, the Bureau will requestor to amend or withdraw a enforcement-related proceedings. treat information that it receives in pending request. However, the Bureau concludes that the accordance with FOIA, including the If the Bureau informs a requestor that categorical, express representations that FOIA exemption at 5 U.S.C. 552(b)(4) it has not chosen to issue an advisory the requestor would need to make under that applies to confidential business opinion, some commenters advocated the Advisory Opinions Policy are information. Information that is subject that the Bureau create a specific sufficient to alert the Bureau to those to a FOIA exemption also will be treated procedure for the requestor to appeal or proceedings of which the Bureau would request reconsideration of that decision. as confidential in accordance with the not otherwise be aware that are likely to Bureau’s rule on Disclosure of Records The Bureau does not believe adding a be relevant to a potential advisory specific procedure to address that and Information, 12 CFR part 1070. The opinion and about which further Bureau confidentiality assurance in the possibility is necessary, because the inquiry may be warranted. The Bureau Advisory Opinions Policy would allow proposed policy reflects the standard for is finalizing the required statements, determining applicability of the a requestor to renew its request a with non-substantive wording changes subsequent time if it wants to bring new exemption at 5 U.S.C. 552(b)(4), in part II.B of the Advisory Opinions established by the United States facts, law, or other considerations to the Policy.25 Bureau’s attention. Supreme Court in Food Marketing Institute v. Argus Leader Media dba G. Third-Party Requests 24 85 FR 37394 (June 22, 2020). Argus Leader, 139 S. Ct. 2356 (2019). To 25 One commenter suggested that the Bureau Part II.B of the Advisory Opinions provide sample language that requestors can use make this clearer, the Bureau revises the Proposal stated that the Bureau would when making these required statements. The policy to state explicitly that the accept advisory opinion requests from Bureau has instead made non-substantive edits to information will be treated in how the required statements are set out in part II.B accordance with FOIA. trade associations, service providers, of the Advisory Opinions Policy, so that requestors and other third parties; however, the can choose to comply by using the applicable Advisory Opinions Proposal noted that language in the Advisory Opinions Policy verbatim. 26 12 CFR 1070.

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J. Other Comments on Specific The Bureau’s Advisory Opinions Boeing Company Model 787–8, 787–9, Implementation Issues Proposal, published June 22, 2020, and 787–10 airplanes. This AD requires The Bureau received comments on a sought comment on these information revising the existing airplane flight number of other subjects. These include collection requirements. While the manual (AFM) to incorporate comments on the structure of the Bureau received numerous comments procedures for conducting an approach Bureau’s internal deliberative process on the Advisory Opinions Proposal, with a localizer-based navigation aid, for considering advisory opinion which are addressed above, the Bureau monitoring localizer raw data, calling requests; timelines for deciding advisory received no comments specifically out any significant deviations, and opinion requests; details of how the regarding the burden estimates or the performing an immediate go around if Bureau should communicate with utility or appropriateness of these the airplane has not intercepted the requestors after the Bureau receives information collections. Additional final approach course as shown by the their requests, such as what the Bureau details on comments received can be localizer deviation. This AD was should say in the letters that it sends found in the Supporting Statement for prompted by reports that the autopilot the related 30-day notice published as flight director system (AFDS) failed to denying requests; general outreach that 30 commenters recommend that the Bureau required under the PRA. transition to the instrument landing A complete description of the conduct with outside bodies or groups; system localizer (LOC) beam after the information collection requirements, recommendations regarding the types of consistent localizer capture function in including the burden estimate methods, requests the Bureau should prioritize; the flight control modules initiated a is provided in the information and details of how the Bureau should transition to capture LOC during collection request (ICR) that the Bureau post advisory opinions on its website. approach. The FAA is issuing this AD submitted to OMB under the to address the unsafe condition on these The Bureau appreciates receiving requirements of the PRA. The ICR products. commenters’ views on all aspects of the submitted to OMB requesting approval program. However, the Bureau has DATES: This AD is effective December under the PRA for the information decided not to expand the scope of the 18, 2020. collection requirements contained Advisory Opinions Policy, which is The FAA must receive comments on herein is available at OMB’s public- intended to establish the general this AD by January 19, 2021. facing docket at https:// procedures of the program, to cover ADDRESSES: You may send comments, www.reginfo.gov/public/. these specific implementation issue. using the procedures found in 14 CFR Instead, the Bureau will consider these VI. Signing Authority 11.43 and 11.45, by any of the following comments as it proceeds with methods: The Director of the Bureau, Kathleen • implementation of the Advisory L. Kraninger, having reviewed and Federal eRulemaking Portal: Go to Opinions Policy. approved this document, is delegating https://www.regulations.gov. Follow the the authority to electronically sign this instructions for submitting comments. IV. Regulatory Requirements • Fax: 202–493–2251. document to Grace Feola, a Bureau • Mail: U.S. Department of This Advisory Opinions Policy is a Federal Register Liaison, for purposes of Transportation, Docket Operations, M– rule of agency organization, procedure, publication in the Federal Register. or practice, and it is therefore exempt 30, West Building Ground Floor, Room from the notice-and-comment Dated: November 30, 2020. W12–140, 1200 New Jersey Avenue SE, rulemaking requirements of the APA.27 Grace Feola, Washington, DC 20590. For the same reason, it is not subject to Federal Register Liaison, Bureau of Consumer • Hand Delivery: Deliver to Mail the 30-day delayed effective date for Financial Protection. address above between 9 a.m. and 5 28 substantive rules under the APA. [FR Doc. 2020–26661 Filed 12–2–20; 8:45 am] p.m., Monday through Friday, except Because no notice of proposed BILLING CODE 4810–AM–P Federal holidays. rulemaking is required, the Regulatory For service information identified in Flexibility Act does not require an this final rule, contact Boeing initial or final regulatory flexibility DEPARTMENT OF TRANSPORTATION Commercial Airplanes, Attention: analysis.29 Contractual & Data Services (C&DS), Federal Aviation Administration 2600 Westminster Blvd., MC 110–SK57, V. Paperwork Reduction Act Seal Beach, CA 90740–5600; telephone The Paperwork Reduction Act of 1995 14 CFR Part 39 562–797–1717; internet https:// (PRA) (44 U.S.C. 3501 et seq.) requires www.myboeingfleet.com. You may view that Federal agencies may not conduct [Docket No. FAA–2020–1031; Project this service information at the FAA, or sponsor, and notwithstanding any Identifier AD–2020–00846–T; Amendment Airworthiness Products Section, 39–21334; AD 2020–24–04] other provision of law, a person is not Operational Safety Branch, 2200 South required to respond to a collection of RIN 2120–AA64 216th St., Des Moines, WA. For information unless it displays a information on the availability of this currently valid Office of Management Airworthiness Directives; The Boeing material at the FAA, call 206–231–3195. and Budget (OMB) control number. The Company Airplanes It is also available on the internet at information collection requirements as AGENCY: Federal Aviation https://www.regulations.gov by contained in this final Policy and Administration (FAA), DOT. searching for and locating Docket No. identified below have been approved by FAA–2020–1031. ACTION: Final rule; request for OMB and assigned the OMB control comments. Examining the AD Docket number 3170–0072. OMB’s approval will expire on November 30, 2023. SUMMARY: The FAA is adopting a new You may examine the AD docket on airworthiness directive (AD) for all The the internet at https:// 27 5 U.S.C. 553(b). www.regulations.gov by searching for 28 5 U.S.C. 553(d). 30 See https://beta.regulations.gov/docket/CFPB- and locating Docket No. FAA–2020– 29 5 U.S.C. 603(a), 604(a). 2020-0019. 1031; or in person at Docket Operations

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between 9 a.m. and 5 p.m., Monday developed, approved, and available, the information as described in 14 CFR through Friday, except Federal holidays. FAA might consider additional 11.35, the FAA will post all comments The AD docket contains this final rule, rulemaking. received, without change, as well as a any comments received, and other FAA’s Justification and Determination report summarizing each substantive information. The street address for of the Effective Date public contact with FAA personnel Docket Operations is listed above. concerning this AD. The FAA will Comments will be available in the AD An unsafe condition exists that consider all comments received by the docket shortly after receipt. requires the immediate adoption of this closing date for comments. The FAA AD without providing an opportunity FOR FURTHER INFORMATION CONTACT: may amend this AD because of those for public comments prior to adoption. Frank Carreras, Aerospace Engineer, comments. Systems and Equipment Section, FAA, The FAA has found that the risk to the Seattle ACO Branch, 2200 South 216th flying public justifies waiving notice Confidential Business Information St., Des Moines, WA 98198; phone and and comment prior to adoption of this fax: 206–231–3539; email: rule because the failure of the AFDS to CBI is commercial or financial [email protected]. transition to the instrument LOC beam, information that is both customarily and after the consistent localizer capture actually treated as private by its owner. SUPPLEMENTARY INFORMATION: function in the flight control modules Under the Freedom of Information Act Discussion initiated a transition to capture LOC (FOIA) (5 U.S.C. 552), CBI is exempt The FAA has received reports during approach, could result in from public disclosure. If your indicating that the AFDS failed to localizer overshoot leading to glideslope comments responsive to this AD contain transition to the instrument landing descent on the wrong heading. commercial or financial information system LOC beam after the consistent Combined with a lack of flight deck that is customarily treated as private, localizer capture function in the flight effects for a consistent localizer capture that you actually treat as private, and control modules initiated a transition to mode failure, this condition could result that is relevant or responsive to this AD, capture LOC during approach. This in a controlled flight into terrain. In it is important that you clearly designate condition, if not addressed, could result addition, the compliance time for the the submitted comments as CBI. Please in localizer overshoot leading to required action is shorter than the time mark each page of your submission glideslope descent on the wrong necessary for the public to comment and containing CBI as ‘‘PROPIN.’’ The FAA heading. Combined with a lack of flight for publication of the final rule. will treat such marked submissions as deck effects for a consistent localizer Therefore, the FAA finds good cause confidential under the FOIA, and they that notice and opportunity for prior capture mode failure, this condition will not be placed in the public docket public comment are impracticable. In could result in a controlled flight into of this AD. Submissions containing CBI addition, for the reasons stated above, terrain. should be sent to Frank Carreras, the FAA finds that good cause exists for FAA’s Determination making this amendment effective in less Aerospace Engineer, Systems and Equipment Section, FAA, Seattle ACO The FAA is issuing this AD because than 30 days. Branch, 2200 South 216th St., Des the agency evaluated all the relevant Comments Invited information and determined the unsafe Moines, WA 98198; phone and fax: 206– condition described previously is likely This AD is a final rule that involves 231–3539; email: frank.carreras@ to exist or develop in other products of requirements affecting flight safety and faa.gov. Any commentary that the FAA the same type design. was not preceded by notice and an receives that is not specifically opportunity for public comment. designated as CBI will be placed in the AD Requirements However, the FAA invites you to send public docket for this rulemaking. This AD requires revising the existing any written comments, data, or views Regulatory Flexibility Act (RFA) AFM to incorporate procedures for about this AD. The most helpful conducting an approach with a comments reference a specific portion of The requirements of the RFA do not localizer-based navigation aid, the proposal, explain the reason for any apply when an agency finds good cause monitoring localizer raw data, calling recommended change, and include pursuant to 5 U.S.C. 553 to adopt a rule out any significant deviations, and supporting data. To ensure the docket without prior notice and comment. performing an immediate go around if does not contain duplicate comments, Because the FAA has determined that it commenters should submit only one the airplane has not intercepted the has good cause to adopt this rule copy of the comments. Send your final approach course as shown by the without notice and comment, RFA comments to an address listed under the localizer deviation. analysis is not required. ADDRESSES section. Include ‘‘Docket No. Interim Action FAA–2020–1031; Project Identifier AD– Costs of Compliance The FAA considers this AD interim 2020–00846–T’’ at the beginning of your action. The manufacturer is currently comments. The FAA estimates that this AD developing a modification that will Except for Confidential Business affects 144 airplanes of U.S. registry. address the unsafe condition identified Information (CBI) as described in the The FAA estimates the following costs in this AD. Once this modification is following paragraph, and other to comply with this AD:

ESTIMATED COSTS

Cost per Cost on U.S. Action Labor cost Parts cost product operators

Revise the AFM ...... 1 work-hour × $85 per hour = $85 ...... $0 $85 $12,240

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Authority for This Rulemaking (1) Is not a ‘‘significant regulatory (c) Applicability action’’ under Executive Order 12866, Title 49 of the United States Code This AD applies to all The Boeing and Company Model 787–8, 787–9, and 787–10 specifies the FAA’s authority to issue airplanes, certificated in any category. rules on aviation safety. Subtitle I, (2) Will not affect intrastate aviation section 106, describes the authority of in Alaska. (d) Subject the FAA Administrator. ‘‘Subtitle VII: List of Subjects in 14 CFR Part 39 Air Transport Association (ATA) of Aviation Programs’’ describes in more America Code 22, Auto flight. Air transportation, Aircraft, Aviation detail the scope of the Agency’s (e) Unsafe Condition authority. safety, Incorporation by reference, Safety. This AD was prompted by reports The FAA is issuing this rulemaking indicating that the autopilot flight director under the authority described in Adoption of the Amendment system (AFDS) failed to transition to the Subtitle VII, Part A, Subpart III, Section instrument landing system localizer (LOC) 44701: General requirements. Under Accordingly, under the authority beam after the consistent localizer capture that section, Congress charges the FAA delegated to me by the Administrator, function in the flight control modules with promoting safe flight of civil the FAA amends 14 CFR part 39 as initiated a transition to capture LOC during aircraft in air commerce by prescribing follows: approach. The FAA is issuing this AD to regulations for practices, methods, and address the AFDS failing to transition, which PART 39—AIRWORTHINESS could result in localizer overshoot leading to procedures the Administrator finds DIRECTIVES glideslope descent on the wrong heading. necessary for safety in air commerce. Combined with a lack of flight deck effects This regulation is within the scope of ■ 1. The authority citation for part 39 for a consistent localizer capture mode that authority because it addresses an continues to read as follows: failure, this condition could result in a unsafe condition that is likely to exist or controlled flight into terrain. Authority: 49 U.S.C. 106(g), 40113, 44701. develop on products identified in this (f) Compliance rulemaking action. § 39.13 [Amended] Comply with this AD within the Regulatory Findings ■ 2. The FAA amends § 39.13 by adding compliance times specified, unless already done. This AD will not have federalism the following new airworthiness implications under Executive Order directive (AD): (g) Revise the Airplane Flight Manual (AFM) 13132. This AD will not have a 2020–24–04 The Boeing Company: Within 14 days after the effective date of substantial direct effect on the States, on Amendment 39–21334 ; Docket No. this AD, revise the limitations section of the the relationship between the national FAA–2020–1031; Project Identifier AD– existing AFM and applicable corresponding government and the States, or on the 2020–00846–T. operational procedures to incorporate the distribution of power and procedures specified in figure 1 to paragraph (a) Effective Date (g) of this AD. Revising the existing AFM to responsibilities among the various This AD is effective December 18, 2020. include the changes specified in paragraph levels of government. (g) of this AD may be done by inserting a For the reasons discussed above, I (b) Affected ADs copy of figure 1 to paragraph (g) of this AD certify that this AD: None. into the existing AFM.

(h) Alternative Methods of Compliance AD. Information may be emailed to: 9-ANM- those findings. To be approved, the repair (AMOCs) [email protected]. method, modification deviation, or alteration (1) The Manager, Seattle ACO Branch, (2) Before using any approved AMOC, deviation must meet the certification basis of FAA, has the authority to approve AMOCs notify your appropriate principal inspector, the airplane, and the approval must or lacking a principal inspector, the manager specifically refer to this AD. for this AD, if requested using the procedures of the responsible Flight Standards Office. found in 14 CFR 39.19. In accordance with (3) An AMOC that provides an acceptable (i) Related Information 14 CFR 39.19, send your request to your level of safety may be used for any repair, For more information about this AD, principal inspector or responsible Flight modification, or alteration required by this contact Frank Carreras, Aerospace Engineer, Standards Office, as appropriate. If sending AD if it is approved by The Boeing Company Systems and Equipment Section, FAA, information directly to the manager of the Organization Designation Authorization Seattle ACO Branch, 2200 South 216th St., certification office, send it to the attention of (ODA) that has been authorized by the Des Moines, WA 98198; phone and fax: 206– the person identified in paragraph (i) of this Manager, Seattle ACO Branch, FAA, to make 231–3539; email: [email protected].

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(j) Material Incorporated by Reference I. Background, Purpose and Legal Basis Your comment can help shape the None. The 63rd Street Bridge across Indian outcome of this rulemaking. If you Issued on November 13, 2020. Creek, mile 4.0, at Miami Beach, Florida submit a comment, please include the docket number for this rulemaking, Lance T. Gant, is a double-leaf bascule bridge with an 11 foot vertical clearance at mean high indicate the specific section of this Director, Compliance & Airworthiness document to which each comment Division, Aircraft Certification Service. water in the closed position. The normal operating schedule for the bridge is set applies, and provide a reason for each [FR Doc. 2020–26680 Filed 12–1–20; 11:15 am] suggestion or recommendation. BILLING CODE 4910–13–P forth in 33 CFR 117.293. Navigation on the waterway is commercial and We encourage you to submit recreational. comments through the Federal A private citizen requested the Coast eRulemaking Portal at https:// Guard consider placing the drawbridge www.regulations.gov. If your material DEPARTMENT OF HOMELAND cannot be submitted using https:// SECURITY on a weekend operating schedule to alleviate vehicle congestion due to on www.regulations.gov, contact the person Coast Guard demand bridge openings. The Coast in the FOR FURTHER INFORMATION Guard contacted the bridge owner, CONTACT section of this document for 33 CFR Part 117 Florida Department of Transportation alternate instructions. (FDOT), and requested a copy of the We accept anonymous comments. All comments received will be posted [Docket No. USCG–2020–0658] bridge logs for the month of August 2020. After reviewing the logs, the Coast without change to https:// www.regulations.gov and will include Drawbridge Operation Regulation; Guard determined placing the bridge on any personal information you have Indian Creek, Miami Beach, FL a schedule during the weekend may alleviate vehicle congestion while provided. For more about privacy and AGENCY: Coast Guard, DHS. maintaining the reasonable needs of submissions in response to this ACTION: Notification of temporary navigation. This test deviation provides document, see DHS’s eRulemaking deviation from regulations; request for for scheduled opening times on System of Records notice (85 FR 14226, comments. Saturdays and Sundays. There will be March 11, 2020). Documents mentioned in this no change to the published weekday notification as being available in this SUMMARY: The Coast Guard has issued a operating schedule. docket and all public comments, will be temporary deviation from the operating Under this test deviation, from 7 a.m. in our online docket at https:// schedule that governs the 63rd Street to 7 p.m., the draw shall open on the www.regulations.gov and can be viewed Bridge across Indian Creek, mile 4.0, at hour and half-hour; except Federal by following that website’s instructions. Miami Beach, Florida. A request was Holidays and all other times, the draw Additionally, if you go to the online made to place the drawbridge on a shall operate on demand. From 7:10 docket and sign up for email alerts, you weekend operating schedule to alleviate a.m. to 9:55 a.m. and 4:05 p.m. to 6:59 will be notified when comments are vehicle congestion due to on demand p.m., Monday through Friday, except posted or a final rule is published. bridge openings. This deviation will test Federal Holidays, the draw need not a change to the drawbridge operation open for the passage of vessels. In Dated: November 23, 2020. schedule to determine whether a February of each year during the period Randall D. Overton, permanent change to the schedule is seven days prior to the City of Miami Director, Bridge Administration, Seventh needed. The Coast Guard is seeking Beach Yacht and Brokerage Show and Coast Guard District. comments from the public regarding the four days following the show, from [FR Doc. 2020–26415 Filed 12–2–20; 8:45 am] these proposed changes. 10 a.m. to 4 p.m., the bridge need not BILLING CODE 9110–04–P DATES: This deviation is effective from open except for 10 minutes at the top of 12:01 a.m. on December 14, 2020, the hour. At all other times the bridge through 11:59 p.m. on June 11, 2021. shall operate on its normal schedule. DEPARTMENT OF HOMELAND Comments and relate material must The Coast Guard will also inform the SECURITY reach the Coast Guard on or before users of the waterways through our February 11, 2021. Local and Broadcast Notices to Mariners Coast Guard ADDRESSES: You may submit comments of the change in operating schedule for identified by docket number USCG– the bridge so that vessel operators can 33 CFR Part 165 2020–0658 using Federal eRulemaking arrange their transits to minimize any [Docket Number USCG–2020–0641] Portal at https://www.regulations.gov. impact caused by the temporary See the ‘‘Public Participation and deviation. RIN 1625–AA08 Request for Comments’’ portion of the In accordance with 33 CFR 117.35(e), Safety Zone; Lower Mississippi River, SUPPLEMENTARY INFORMATION section the drawbridge must return to its regular Natchez, MS below for instructions on submitting operating schedule immediately at the comments. end of the effective period of this AGENCY: Coast Guard, DHS. temporary deviation. This deviation FOR FURTHER INFORMATION CONTACT: If ACTION: Temporary final rule. from the operating regulations is you have questions on this test authorized under 33 CFR 117.35. SUMMARY: The Coast Guard is deviation, call or email LT Samuel establishing a temporary safety zone for Rodriguez-Gonzalez, U.S. Coast Guard, II. Public Participation and Request for all navigable waters of the Lower Sector Miami Waterways Management Comments Mississippi River between Mile Marker Division; telephone 305–535–4307, We view public participation as (MM) 364.5 and MM 365.5. This action email Samuel.Rodriguez-Gonzalez@ essential to effective rulemaking, and is necessary to provide for the safety of uscg.mil. will consider all comments and material persons, vessels, and the marine SUPPLEMENTARY INFORMATION: received during the comment period. environment during a fireworks display.

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Entry of persons or vessels into this III. Legal Authority and Need for Rule Executive orders, and we discuss First zone is prohibited unless authorized by Amendment rights of protestors. the Captain of the Port Sector Lower The Coast Guard is issuing this rule A. Regulatory Planning and Review Mississippi River or a designated under authority in 46 U.S.C. 70034 representative. (previously 33 U.S.C. 1231). The Executive Orders 12866 and 13563 Captain of the Port Sector Lower direct agencies to assess the costs and DATES: This rule is effective from 4 p.m. Mississippi River (COTP) has benefits of available regulatory through 7 p.m. on December 31, 2020. determined that potential hazards alternatives and, if regulation is ADDRESSES: To view documents associated with the fireworks display necessary, to select regulatory mentioned in this preamble as being located at mile marker (MM) 365.0 on approaches that maximize net benefits. available in the docket, go to https:// the Lower Mississippi River and Executive Order 13771 directs agencies www.regulations.gov, type USCG–2020– scheduled for 4 p.m. on December 31, to control regulatory costs through a 0641 in the ‘‘SEARCH’’ box and click 2020, would be a safety concern for all budgeting process. This rule has not ‘‘SEARCH.’’ Click on Open Docket persons and vessels on the Lower been designated a ‘‘significant Folder on the line associated with this Mississippi River between MM 364.5 regulatory action,’’ under Executive rule. and MM 365.5 from 4 p.m. through 7 Order 12866. Accordingly, this rule has FOR FURTHER INFORMATION CONTACT: If p.m. on December 31, 2020. Hazards not been reviewed by the Office of you have questions on this rule, call or associated with the firework displays Management and Budget (OMB), and email MSTC Lindsey Swindle, Sector include accidental discharge of pursuant to OMB guidance it is exempt Lower Mississippi River, U.S. Coast fireworks, dangerous projectiles, and from the requirements of Executive Guard; telephone 901–521–4813, email falling hot embers or other debris. This Order 13771. [email protected]. rule is necessary to ensure the safety of This regulatory action determination SUPPLEMENTARY INFORMATION: persons, vessels, and the marine is based on the size, location, and I. Table of Abbreviations environment on these navigable waters duration of the safety zone. Vessel before, during, and after the fireworks. traffic will be prohibited from entering CFR Code of Federal Regulations this safety zone, which will impact a COTP Captain of the Port IV. Discussion of the Rule one-mile stretch of Lower Mississippi DHS Department of Homeland Security River for three hours on one evening. FR Federal Register This rule establishes a temporary NPRM Notice of proposed rulemaking safety zone from 4 p.m. through 7 p.m. Moreover, the Coast Guard will issue a § Section on December 31, 2020. The safety zone Broadcast Notice to Mariners via VHF– U.S.C. United States Code will cover all navigable waters of the FM marine channel 16 about the safety Lower Mississippi River from MM 364.5 zone, and the rule allows vessels to seek II. Background Information and permission to enter the zone. Regulatory History to MM 365.5. The duration of this safety zone is intended to ensure the safety of B. Impact on Small Entities The Coast Guard is issuing this waterway users on these navigable temporary rule without prior notice and waters before, during, and after the The Regulatory Flexibility Act of opportunity to comment pursuant to scheduled fireworks display. 1980, 5 U.S.C. 601–612, as amended, authority under section 4(a) of the requires Federal agencies to consider Administrative Procedure Act (APA) (5 Entry of persons or vessels into this the potential impact of regulations on U.S.C. 553(b)). This provision safety zone is prohibited unless small entities during rulemaking. The authorizes an agency to issue a rule authorized by the COTP or a designated term ‘‘small entities’’ comprises small without prior notice and opportunity to representative. A designated businesses, not-for-profit organizations comment when the agency for good representative is a commissioned, that are independently owned and cause finds that those procedures are warrant, or petty officer of the U.S. operated and are not dominant in their ‘‘impracticable, unnecessary, or contrary Coast Guard assigned to units under the fields, and governmental jurisdictions to the public interest.’’ Under 5 U.S.C. operational control of USCG Sector with populations of less than 50,000. 553(b)(B), the Coast Guard finds that Lower Mississippi River. Persons or The Coast Guard certifies under 5 U.S.C. good cause exists for not publishing a vessels seeking to enter the safety zones 605(b) that this rule will not have a notice of proposed rulemaking (NPRM) must request permission from the COTP significant economic impact on a with respect to this rule because it is or a designated representative on VHF– substantial number of small entities. impracticable. We must establish this FM channel 16 or by telephone at 901– While some owners or operators of safety zone by December 31, 2020, and 521–4822. If permission is granted, all vessels intending to transit the safety lack sufficient time to provide a persons and vessels shall comply with zone may be small entities, for the reasonable comment period and then the instructions of the COTP or reasons stated in section V.A above, this consider those comments before issuing designated representative. The COTP or rule will not have a significant this rule. The NPRM process would a designated representative will inform economic impact on any vessel owner delay the establishment of the safety the public of the enforcement times and or operator. zone until after the date of the event and date for this safety zone through Under section 213(a) of the Small compromise public safety. Broadcast Notices to Mariners (BNMs), Business Regulatory Enforcement Under 5 U.S.C. 553(d)(3), the Coast Local Notices to Mariners (LNMs), and/ Fairness Act of 1996 (Pub. L. 104–121), Guard finds that good cause exists for or Marine Safety Information Bulletins we want to assist small entities in making this rule effective less than 30 (MSIBs) as appropriate. understanding this rule. If the rule days after publication in the Federal V. Regulatory Analyses would affect your small business, Register. Delaying the effective date of organization, or governmental this rule would be impracticable We developed this rule after jurisdiction and you have questions because immediate action is necessary considering numerous statutes and concerning its provisions or options for to protect persons and property from the Executive orders related to rulemaking. compliance, please call or email the potential hazards associated with the Below we summarize our analyses person listed in the FOR FURTHER fireworks display. based on a number of these statutes and INFORMATION CONTACT section.

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Small businesses may send comments F. Environment this part, you may not enter the safety on the actions of Federal employees We have analyzed this rule under zone described in paragraph (a) of this who enforce, or otherwise determine Department of Homeland Security section unless authorized by the Captain compliance with, Federal regulations to Directive 023–01, Rev. 1, associated of the Port Sector Lower Mississippi the Small Business and Agriculture implementing instructions, and River (COTP) or the COTP’s designated Regulatory Enforcement Ombudsman Environmental Planning COMDTINST representative. and the Regional Small Business 5090.1 (series), which guide the Coast (2) To seek permission to enter, Regulatory Fairness Boards. The Guard in complying with the National contact the COTP or the COTP’s Ombudsman evaluates these actions Environmental Policy Act of 1969 (42 representative via VHF–FM channel 16 annually and rates each agency’s U.S.C. 4321–4370f), and have or by telephone at 901–521–4822. Those responsiveness to small business. If you determined that this action is one of a in the safety zone must comply with all wish to comment on actions by category of actions that do not lawful orders or directions given to employees of the Coast Guard, call 1– individually or cumulatively have a them by the COTP or the COTP’s 888–REG–FAIR (1–888–734–3247). The significant effect on the human designated representative. Coast Guard will not retaliate against environment. This rule involves a safety (c) Enforcement period. This section small entities that question or complain zone that will prohibit entry on a one- will be enforced 4 p.m. through 7 p.m. about this rule or any policy or action mile stretch of the Lower Mississippi on December 31, 2020. Periods of of the Coast Guard. River for three hours on one evening. It activation will be promulgated by is categorically excluded from further Broadcast Notice to Mariners. C. Collection of Information review under paragraph L60(a) of Dated: November 2, 2020. This rule will not call for a new Appendix A, Table 1 of UDHS R.S. Rhodes, Instruction Manual 023–01–001–01, collection of information under the Captain, U.S. Coast Guard, Captain of the Rev. 1. A Record of Environmental Paperwork Reduction Act of 1995 (44 Port Sector Lower Mississippi River. Consideration supporting this U.S.C. 3501–3520). [FR Doc. 2020–26177 Filed 12–2–20; 8:45 am] determination is available in the docket. BILLING CODE 9110–04–P D. Federalism and Indian Tribal For instructions on locating the docket, Governments see the ADDRESSES section of this preamble. ENVIRONMENTAL PROTECTION A rule has implications for federalism AGENCY under Executive Order 13132, G. Protest Activities Federalism, if it has a substantial direct The Coast Guard respects the First 40 CFR Part 52 effect on the States, on the relationship Amendment rights of protesters. between the National Government and Protesters are asked to call or email the [EPA–R09–OAR–2020–0136; FRL–10016– the States, or on the distribution of person listed in the FOR FURTHER 79–Region 9] INFORMATION CONTACT section to power and responsibilities among the Air Plan Partial Approval and Partial coordinate protest activities so that your various levels of government. We have Disapproval; California; San Diego analyzed this rule under that Order and message can be received without have determined that it is consistent jeopardizing the safety or security of AGENCY: Environmental Protection with the fundamental federalism people, places or vessels. Agency (EPA). principles and preemption requirements List of Subjects in 33 CFR Part 165 ACTION: Final rule. described in Executive Order 13132. Harbors, Marine safety, Navigation SUMMARY: The Environmental Protection Also, this rule does not have tribal (water), Reporting and recordkeeping Agency (EPA) is taking final action to implications under Executive Order requirements, Security measures, partially approve and partially 13175, Consultation and Coordination Waterways. disapprove revisions to the San Diego with Indian Tribal Governments, For the reasons discussed in the Air Pollution Control District (SDAPCD because it does not have a substantial preamble, the Coast Guard amends 33 or ‘‘District’’) portion of the California direct effect on one or more Indian CFR part 165 as follows: State Implementation Plan (SIP). These tribes, on the relationship between the revisions concern the District’s Federal Government and Indian tribes, PART 165—REGULATED NAVIGATION demonstration regarding reasonably or on the distribution of power and AREAS AND LIMITED ACCESS AREAS available control technology (RACT) responsibilities between the Federal requirements and negative declarations ■ 1. The authority citation for part 165 Government and Indian tribes. for the 2008 ozone national ambient air continues to read as follows: E. Unfunded Mandates Reform Act quality standards (NAAQS or Authority: 46 U.S.C. 70034, 70051; 33 CFR ‘‘standards’’) in the San Diego ozone The Unfunded Mandates Reform Act 1.05–1; 6.04–1, 6.04–6, and 160.5; nonattainment area under the Department of Homeland Security Delegation jurisdiction of the SDAPCD. of 1995 (2 U.S.C. 1531–1538) requires No. 0170.1. Federal agencies to assess the effects of DATES: This rule will be effective on ■ their discretionary regulatory actions. In 2. Add § 165.T08–0641 to read as January 4, 2021. follows: particular, the Act addresses actions ADDRESSES: The EPA has established a that may result in the expenditure by a § 165.T08–0641 Safety Zone; Lower docket for this action under Docket ID State, local, or tribal government, in the Mississippi River, Natchez, MS. No. EPA–R09–OAR–2020–0136. All aggregate, or by the private sector of (a) Location. The following area is a documents in the docket are listed on $100,000,000 (adjusted for inflation) or safety zone: All navigable waters of the the https://www.regulations.gov more in any one year. Though this rule Lower Mississippi River from Mile website. Although listed in the index, will not result in such an expenditure, Marker (MM) 364.5 through MM 365.5. some information is not publicly we do discuss the effects of this rule (b) Regulations. (1) Under the general available, e.g., Confidential Business elsewhere in this preamble. safety zone regulations in subpart C of Information (CBI) or other information

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whose disclosure is restricted by statute. accommodation at no cost to you, please II. Public Comments and EPA Responses Certain other material, such as contact the person identified in the FOR III. EPA Action copyrighted material, is not placed on FURTHER INFORMATION CONTACT section. IV. Statutory and Executive Order Reviews the internet and will be publicly FOR FURTHER INFORMATION CONTACT: I. Proposed Action available only in hard copy form. Nancy Levin, EPA Region IX, 75 Publicly available docket materials are Hawthorne St., San Francisco, CA On August 10, 2020 (85 FR 48127), available through https:// 94105. By phone: (415) 972–3848 or by the EPA proposed to partially approve www.regulations.gov, or please contact email at [email protected]. and partially disapprove the California the person identified in the FOR FURTHER SUPPLEMENTARY INFORMATION: Air Resources Board’s April 12, 2017 INFORMATION CONTACT section for Throughout this document, ‘‘we,’’ ‘‘us’’ submittal of the 2008 Eight-Hour Ozone additional availability information. If and ‘‘our’’ refer to the EPA. Reasonably Available Control you need assistance in a language other Table of Contents Technology Demonstration for San than English or if you are a person with Diego County (‘‘2016 RACT SIP’’). disabilities who needs a reasonable I. Proposed Action

TABLE 1—SUBMITTED DOCUMENT

Local agency Document Adopted Submitted

SDAPCD ...... 2008 Eight-Hour Ozone Reasonably Available Control Technology Demonstration for San 12/14/16 4/12/2017 Diego County (‘‘2016 RACT SIP’’).

Our proposed action contains more within 18 months of the effective date C. Paperwork Reduction Act (PRA) information on the submittal and our of this action. Highway sanctions will This action does not impose an evaluation. be imposed unless the EPA approves a information collection burden under the subsequent SIP revision that corrects the II. Public Comments and EPA PRA, because this SIP partial approval rule deficiencies within 24 months of Responses and partial disapproval does not in-and- the effective date of this action. These of itself create any new information The EPA’s proposed action provided sanctions will be imposed under section collection burdens, but simply partially a 30-day public comment period. During 179 of the CAA and 40 CFR 52.31. approves and partially disapproves this period, we received two comments. Additionally, section 110(c) requires the certain State requirements for inclusion One comment was supportive, and the EPA to promulgate a Federal in the SIP. other was not germane. implementation plan within 24 months D. Regulatory Flexibility Act (RFA) III. EPA Action unless we approve subsequent SIP revisions that correct the rule I certify that this action will not have No comments were submitted that deficiencies. a significant economic impact on a change our assessment of the 2016 As authorized in sections 110(k)(3) substantial number of small entities RACT SIP as described in our proposed and 301(a) of the CAA, the EPA is under the RFA. This action will not action. Therefore, we are finalizing a finalizing a partial approval of the 2016 impose any requirements on small partial approval and partial disapproval RACT SIP with respect to all remaining entities. This SIP partial approval and of the 2016 RACT SIP. As authorized in source categories, as proposed. The EPA partial disapproval does not in-and-of sections 110(k)(3) and 301(a) of the is also finalizing an approval of the itself create any new requirements but CAA, the EPA is finalizing a partial District’s negative declarations as simply partially approves and partially disapproval of the 2016 RACT SIP with proposed. disapproves certain pre-existing State respect to those portions addressing the requirements for inclusion in the SIP. following source categories: Design IV. Statutory and Executive Order Criteria for Stage I Vapor Control Reviews E. Unfunded Mandates Reform Act Systems—Gasoline Service Stations Additional information about these (UMRA) (EPA–450/R–75–102); Tank Truck statutes and Executive orders can be This action does not contain any Gasoline Loading Terminals (EPA–450/ found at http://www.epa.gov/laws- unfunded mandate as described in 2–77–026); Manufacture of Synthesized regulations/laws-and-executive-orders. UMRA, 2 U.S.C. 1531–1538, and does Pharmaceutical Products (EPA–450/2– not significantly or uniquely affect small 78–029); Industrial Cleaning Solvents A. Executive Order 12866: Regulatory governments. This action partially (EPA–453/R–06–001); Fiberglass Boat Planning and Review and Executive approves and partially disapproves pre- Manufacturing Materials (EPA–453/R– Order 13563: Improving Regulation and existing requirements under State or 08–004); Non-CTG major sources of Regulatory Review local law and imposes no new VOC; and Miscellaneous Metal and This action is not a significant requirements. Accordingly, no Plastic Parts Coatings (EPA–453/R–08– regulatory action and was therefore not additional costs to state, local, or tribal 003) Table 3—Plastic Parts and submitted to the Office of Management governments, or to the private sector, Products, Table 4—Automotive/ and Budget (OMB) for review. result from this action. Transportation and Business Machine Plastic Parts, Table 5—Pleasure Craft B. Executive Order 13771: Reducing F. Executive Order 13132: Federalism Surface Coating, and Table 6—Motor Regulations and Controlling Regulatory This action does not have federalism Vehicle Materials. As a result of the Costs implications. It will not have substantial final partial disapproval, offset This action is not an Executive Order direct effects on the states, on the sanctions will be imposed unless the 13771 regulatory action because this relationship between the National EPA approves a subsequent SIP revision action is not significant under Executive Government and the states, or on the that corrects the identified deficiencies Order 12866. distribution of power and

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responsibilities among the various K. Executive Order 12898: Federal Subpart F—California levels of government. Actions To Address Environmental Justice in Minority Populations and ■ G. Executive Order 13175: Coordination 2. Section 52.220 is amended by Low-Income Populations With Indian Tribal Governments adding paragraph (c)(547) to read as follows: This action does not have tribal The EPA lacks the discretionary authority to address environmental implications, as specified in Executive § 52.220 Identification of plan—in part. Order 13175, because the SIP revision justice in this rulemaking. * * * * * that the EPA is partially disapproving L. Congressional Review Act (CRA) would not apply on any Indian (c) * * * This action is subject to the CRA, and reservation land or in any other area the EPA will submit a rule report to (547) The following plan was where the EPA or an Indian tribe has each House of the Congress and to the submitted on April 12, 2017 by the demonstrated that a tribe has Governor’s designee. jurisdiction, and will not impose Comptroller General of the United substantial direct costs on tribal States. This action is not a ‘‘major rule’’ (i) [Reserved] governments or preempt tribal law. as defined by 5 U.S.C. 804(2). (ii) Additional materials. (A) San Thus, Executive Order 13175 does not M. Petitions for Judicial Review Diego Air Pollution Control District. apply to this action. Under section 307(b)(1) of the Clean (1) 2008 Eight-Hour Ozone H. Executive Order 13045: Protection of Air Act, petitions for judicial review of Reasonably Available Control Children From Environmental Health this action must be filed in the United Technology Demonstration for San Risks and Safety Risks States Court of Appeals for the Diego County except those portions The EPA interprets Executive Order appropriate circuit by February 1, 2021. addressing the following source 13045 as applying only to those Filing a petition for reconsideration by categories: Design Criteria for Stage I regulatory actions that concern the Administrator of this final rule does Vapor Control Systems—Gasoline environmental health or safety risks that not affect the finality of this rule for the Service Stations (EPA–450/R–75–102); the EPA has reason to believe may purposes of judicial review nor does it Tank Truck Gasoline Loading Terminals disproportionately affect children, per extend the time within which a petition (EPA–450/2–77–026); Manufacture of the definition of ‘‘covered regulatory for judicial review may be filed, and Synthesized Pharmaceutical Products action’’ in section 2–202 of the shall not postpone the effectiveness of (EPA–450/2–78–029); Industrial Executive order. This action is not such rule or action. This action may not Cleaning Solvents (EPA–453/R–06–001); subject to Executive Order 13045 be challenged later in proceedings to Fiberglass Boat Manufacturing Materials because this SIP partial approval and enforce its requirements (see section (EPA–453/R–08–004); Non-CTG major partial disapproval does not in-and-of 307(b)(2)). sources of VOC; and Miscellaneous itself create any new regulations, but List of Subjects in 40 CFR Part 52 Metal and Plastic Parts Coatings (EPA– simply partially approves and partially 453/R–08–003) Table 3—Plastic Parts disapproves certain pre-existing State Environmental protection, Air and Products, Table 4—Automotive/ pollution control, Incorporation by requirements for inclusion in the SIP. Transportation and Business Machine reference, Intergovernmental relations, Plastic Parts, Table 5—Pleasure Craft I. Executive Order 13211: Actions That Nitrogen dioxide, Ozone, Reporting and Surface Coating, and Table 6—Motor Significantly Affect Energy Supply, recordkeeping requirements, Volatile Distribution, or Use organic compounds. Vehicle Materials. This action is not subject to Executive Dated: November 10, 2020. (2) [Reserved] Order 13211, because it is not a John Busterud, (B) [Reserved] significant regulatory action under Regional Administrator, Region IX. Executive Order 12866. ■ 3. Section 52.222 is amended by For the reasons stated in the adding paragraph (a)(5)(ii) to read as J. National Technology Transfer and preamble, the Environmental Protection follows: Advancement Act (NTTAA) Agency amends part 52, chapter I, title Section 12(d) of the NTTAA directs 40 of the Code of Federal Regulations § 52.222 Negative declarations. the EPA to use voluntary consensus follows: (a) * * * standards in its regulatory activities (5) * * * unless to do so would be inconsistent PART 52—APPROVAL AND with applicable law or otherwise PROMULGATION OF (ii) The following negative impractical. The EPA believes that this IMPLEMENTATION PLANS declarations for the 2008 ozone NAAQS action is not subject to the requirements were adopted by the San Diego Air of section 12(d) of the NTTAA because ■ 1. The authority citation for part 52 Pollution Control District on December application of those requirements would continues to read as follows: 14, 2016, and submitted to the EPA on be inconsistent with the CAA. Authority: 42 U.S.C. 7401 et seq. April 12, 2017.

TABLE 4 TO PARAGRAPH (a)(5)(ii)—NEGATIVE DECLARATIONS FOR THE 2008 OZONE NAAQS

CTG document No. CTG document title

EPA–450/2–77–008 ...... Control of Volatile Organic Emissions from Existing Stationary Sources—Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks (Automobiles, and light-duty truck coatings only). EPA–450/2–77–025 ...... Control of Refinery Vacuum Producing Systems, Wastewater Separators, and Process Unit Turnarounds. EPA–450/2–77–032 ...... Control of Volatile Organic Emissions from Existing Stationary Sources—Volume III: Surface Coating of Metal Fur- niture.

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TABLE 4 TO PARAGRAPH (a)(5)(ii)—NEGATIVE DECLARATIONS FOR THE 2008 OZONE NAAQS—Continued

CTG document No. CTG document title

EPA–450/2–77–033 ...... Control of Volatile Organic Emissions from Existing Stationary Sources—Volume IV: Surface Coating of Insulation of Magnet Wire. EPA–450/2–77–034 ...... Control of Volatile Organic Emissions from Existing Stationary Sources—Volume V: Surface Coating of Large Appli- ances. EPA–450/2–78–030 ...... Control of Volatile Organic Emissions from Manufacture of Pneumatic Rubber Tires. EPA–450/2–78–032 ...... Control of Volatile Organic Emissions from Existing Stationary Sources—Volume VII: Factory Surface Coating of Flat Wood Paneling. EPA–450/2–78–036 ...... Control of Volatile Organic Compound Leaks from Petroleum Refinery Equipment. EPA–450/3–82–009 ...... Control of Volatile Organic Compound Emissions from Large Petroleum Dry Cleaners. EPA–450/3–83–006 ...... Control of Volatile Organic Compound Leaks from Synthetic Organic Chemical Polymer and Resin Manufacturing Equipment. EPA–450/3–83–007 ...... Control of Volatile Organic Compound Equipment Leaks from Natural Gas/Gasoline Processing Plants. EPA–450/3–83–008 ...... Control of Volatile Organic Compound Emissions from Manufacture of High-Density Polyethylene, Polypropylene, and Polystyrene Resins. EPA–450/3–84–015 ...... Control of Volatile Organic Compound Emissions from Air Oxidation Processes in Synthetic Organic Chemical Manu- facturing Industry. EPA–450/4–91–031 ...... Control of Volatile Organic Compound Emissions from Reactor Processes and Distillation Operations in Synthetic Or- ganic Chemical Manufacturing Industry. EPA–453/R–97–004; 59 Control of Volatile Organic Compound Emissions from Coating Operations at Aerospace Manufacturing and Rework FR 29216 (6/6/94). Operations; Aerospace MACT. EPA–453/R–06–004 ...... Control Techniques Guidelines for Flat Wood Paneling Coatings. EPA–453/R–07–004 ...... Control Techniques Guidelines for Large Appliance Coatings. EPA–453/R–07–005 ...... Control Techniques Guidelines for Metal Furniture Coatings. EPA–453/R–08–006 ...... Control Techniques Guidelines for Automobile and Light-Duty Truck Assembly Coatings.

* * * * * ENVIRONMENTAL PROTECTION Public Reading Room is (202) 566–1744, ■ 4. Section 52.237 is amended by AGENCY and the telephone number for the OPP adding paragraph (b)(2) to read as Docket is (703) 305–5805. follows: 40 CFR Part 180 Due to the public health concerns [EPA–HQ–OPP–2019–0461; FRL–10016–23] related to COVID–19, the EPA Docket § 52.237 Part D disapproval. Center (EPA/DC) and Reading Room is (b) * * * Sethoxydim; Pesticide Tolerances closed to visitors with limited (2) San Diego Air Pollution Control exceptions. The staff continues to AGENCY: Environmental Protection District. provide remote customer service via Agency (EPA). (i) RACT determinations for the email, phone, and webform. For the following source categories in the ACTION: Final rule. latest status information on EPA/DC submittal titled ‘‘2008 Eight-Hour Ozone SUMMARY: This regulation establishes services and docket access, visit https:// Reasonably Available Control tolerances for residues of sethoxydim in www.epa.gov/dockets. Technology Demonstration for San or on basil, dried leaves and basil, fresh FOR FURTHER INFORMATION CONTACT: Diego County,’’ dated December 2016, leaves. Interregional Research Project Marietta Echeverria, Registration as adopted December 14, 2016, and Number 4 (IR–4) requested these Division (7505P), Office of Pesticide submitted on April 12, 2017. tolerances under the Federal Food, Programs, Environmental Protection (A) Design Criteria for Stage I Vapor Drug, and Cosmetic Act (FFDCA). Agency, 1200 Pennsylvania Ave. NW, Control Systems—Gasoline Service DATES: This regulation is effective Washington, DC 20460–0001; main Stations (EPA–450/R–75–102). December 3, 2020. Objections and telephone number: (703) 305–7090; (B) Tank Truck Gasoline Loading requests for hearings must be received email address: [email protected]. Terminals (EPA–450/2–77–026). on or before February 1, 2021, and must SUPPLEMENTARY INFORMATION: (C) Manufacture of Synthesized be filed in accordance with the Pharmaceutical Products (EPA–450/2– instructions provided in 40 CFR part I. General Information 78–029). 178 (see also Unit I.C. of the A. Does this action apply to me? (D) Industrial Cleaning Solvents SUPPLEMENTARY INFORMATION). (EPA–453/R–06–001). ADDRESSES: The docket for this action, You may be potentially affected by (E) Fiberglass Boat Manufacturing identified by docket identification (ID) this action if you are an agricultural Materials (EPA–453/R–08–004). number EPA–HQ–OPP–2019–0461, is producer, food manufacturer, or (F) Non-CTG major sources of VOC. available at http://www.regulations.gov pesticide manufacturer. The following (G) Miscellaneous Metal and Plastic or at the Office of Pesticide Programs list of North American Industrial Parts Coatings (EPA–453/R–08–003) Regulatory Public Docket (OPP Docket) Classification System (NAICS) codes is Table 3—Plastic Parts and Products, in the Environmental Protection Agency not intended to be exhaustive, but rather Table 4—Automotive/Transportation Docket Center (EPA/DC), West William provides a guide to help readers and Business Machine Plastic Parts, Jefferson Clinton Bldg., Rm. 3334, 1301 determine whether this document Table 5—Pleasure Craft Surface Coating, Constitution Ave. NW, Washington, DC applies to them. Potentially affected and Table 6—Motor Vehicle Materials. 20460–0001. The Public Reading Room entities may include: (ii) [Reserved] is open from 8:30 a.m. to 4:30 p.m., • Crop production (NAICS code 111). [FR Doc. 2020–26649 Filed 12–2–20; 8:45 am] Monday through Friday, excluding legal • Animal production (NAICS code BILLING CODE 6560–50–P holidays. The telephone number for the 112).

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• Food manufacturing (NAICS code available at http://www.epa.gov/ available scientific data and other 311). dockets. relevant information in support of this • Pesticide manufacturing (NAICS action. EPA has sufficient data to assess II. Summary of Petitioned-For code 32532). the hazards of sethoxydim and to make Tolerance a determination on aggregate exposure B. How can I get electronic access to In the Federal Register of October 3, for sethoxydim, including exposure other related information? 2019 (84 FR 52850) (FRL–9999–89), resulting from the tolerances established You may access a frequently updated EPA issued a document pursuant to by this action. EPA’s assessment of electronic version of EPA’s tolerance FFDCA section 408(d)(3), 21 U.S.C. exposures and risks associated with regulations at 40 CFR part 180 through 346a(d)(3), announcing the filing of a sethoxydim follows. the Government Publishing Office’s e- pesticide petition (PP 9E8769) by IR–4, B. Sethoxydim Aggregate Risk CFR site at http://www.ecfr.gov/cgi-bin/ IR–4 Project Headquarters, Rutgers, The Assessment text-idx?&c=ecfr&tpl=/ecfrbrowse/ State University of New Jersey, 500 Title40/40tab_02.tpl. College Road East, Suite 201 W, On June 15, 2015, EPA published in the Federal Register a final rule C. How can I file an objection or hearing Princeton, NJ 08540. The petition establishing tolerances for residues of request? requested that 40 CFR 180.412 be amended by establishing tolerances for sethoxydim in or on multiple Under FFDCA section 408(g), 21 residues of the herbicide sethoxydim, commodities based on the Agency’s U.S.C. 346a, any person may file an including its metabolites and conclusion that aggregate exposure to objection to any aspect of this regulation degradates, determined by measuring sethoxydim is safe for the general and may also request a hearing on those only the sum of sethoxydim, 2-[1- population, including infants and objections. You must file your objection (ethoxyimino)butyl]-5-[2- children. See 80 FR 34070 (FRL–9928– or request a hearing on this regulation (ethylthio)propyl]-3-hydroxy-2- 20) (Docket ID EPA–HQ–OPP–2014– in accordance with the instructions cyclohexen-1-one (CAS Reg. No. 74051– 0161). In an effort to streamline Federal provided in 40 CFR part 178. To ensure 80–2) and its metabolites containing the Register publications, EPA is not proper receipt by EPA, you must 2-cyclohexen-1-one moiety, calculated reprinting here summaries of its identify docket ID number EPA–HQ– as the stoichiometric equivalent of analysis that have previously appeared OPP–2019–0461 in the subject line on sethoxydim, in or on basil, dried leaves in the Federal Register in tolerance the first page of your submission. All at 20 parts per million (ppm) and basil, rulemakings for the same pesticide. To objections and requests for a hearing fresh leaves at 8 ppm. That document that end, this rulemaking refers the must be in writing and must be received referenced a summary of the petition reader to the following sections from the by the Hearing Clerk on or before prepared by IR–4, the petitioner, which June 15, 2015 tolerance rulemaking for February 1, 2021. Addresses for mail is available in the docket for this action, sethoxydim that remain unchanged for and hand delivery of objections and docket ID number EPA–HQ–OPP–2019– an understanding of the Agency’s hearing requests are provided in 40 CFR 0461, at http://www.regulations.gov. No rationale in support of this rulemaking: 178.25(b). relevant comments were received in Units III.A (Toxicological Profile); III.B. In addition to filing an objection or response to the notice of filing. (Toxicological Points of Departure/ hearing request with the Hearing Clerk Levels of Concern); III.C. (Exposure as described in 40 CFR part 178, please III. Aggregate Risk Assessment and Assessment), except as explained in the submit a copy of the filing (excluding Determination of Safety next paragraphs; III.D. (Safety Factor for any Confidential Business Information A. Statutory Background Infants and Children); and IV.A (CBI)) for inclusion in the public docket. (Analytical Enforcement Method). Information not marked confidential Section 408(b)(2)(A)(i) of the FFDCA 1. Updates to exposure assessment. pursuant to 40 CFR part 2 may be allows EPA to establish a tolerance (the EPA’s dietary (food and drinking water) disclosed publicly by EPA without prior legal limit for a pesticide chemical exposure assessments have been notice. Submit the non-CBI copy of your residue in or on a food) only if EPA updated to include the additional objection or hearing request, identified determines that the tolerance is ‘‘safe.’’ exposure from the new use of by docket ID number EPA–HQ–OPP– Section 408(b)(2)(A)(ii) of FFDCA sethoxydim on basil. In addition, the 2019–0461, by one of the following defines ‘‘safe’’ to mean that ‘‘there is a acute dietary exposure assessment was methods: reasonable certainty that no harm will revised to: (1) Assume 100% crop • Federal eRulemaking Portal: http:// result from aggregate exposure to the treated, instead of using percent crop www.regulations.gov. Follow the online pesticide chemical residue, including treated as described in the 2015 rule; instructions for submitting comments. all anticipated dietary exposures and all and (2) incorporate empirical and/or Do not submit electronically any other exposures for which there is EPA’s 2018 default processing factors. information you consider to be CBI or reliable information.’’ This includes The assumption of tolerance-level other information whose disclosure is exposure through drinking water and in residues for both the acute and chronic restricted by statute. residential settings, but it does not dietary analyses has not changed. For • Mail: OPP Docket, Environmental include occupational exposure. Section the chronic dietary exposure Protection Agency Docket Center (EPA/ 408(b)(2)(C) of FFDCA requires EPA to assessment, EPA incorporated updated DC), (28221T), 1200 Pennsylvania Ave. give special consideration to exposure average crop treated estimates for select NW, Washington, DC 20460–0001. of infants and children to the pesticide commodities and EPA’s 2018 processing • Hand Delivery: To make special chemical residue in establishing a factors. arrangements for hand delivery or tolerance and to ‘‘ensure that there is a The new use on basil does not impact delivery of boxed information, please reasonable certainty that no harm will drinking water exposures; therefore, the follow the instructions at http:// result to infants and children from Agency relied on the same values for www.epa.gov/dockets/contacts.html. aggregate exposure to the pesticide drinking water exposures as expressed Additional instructions on commenting chemical residue. . . .’’ in the June 2015 rulemaking. or visiting the docket, along with more Consistent with FFDCA section While EPA has updated the human information about dockets generally, is 408(b)(2)(D), EPA has reviewed the equivalent doses for assessing

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inhalation risk to residential handlers, C. Determination of Safety regulatory action under Executive Order this revision does not impact the Therefore, based on the risk 13771, entitled ‘‘Reducing Regulations approach of the aggregate assessment. assessments and information described and Controlling Regulatory Costs’’ (82 The scenario and life stage resulting in and referenced above, EPA concludes FR 9339, February 3, 2017). This action the highest residential exposures for use that there is a reasonable certainty that does not contain any information in the aggregate assessment and which no harm will result to the general collections subject to OMB approval is considered protective of other population, or to infants and children, under the Paperwork Reduction Act exposure scenarios continues to be the from aggregate exposure to sethoxydim (PRA) (44 U.S.C. 3501 et seq.), nor does post-application incidental oral hand-to- residues. More detailed information it require any special considerations mouth exposure of children (1 to less about the Agency’s analysis can be under Executive Order 12898, entitled than 2 years old) on treated turf. The found in ‘‘Sethoxydim: Human Health ‘‘Federal Actions to Address new use on basil does not result in any Risk Assessment to Support the Section Environmental Justice in Minority additional residential exposures. 3 Use on Basil and a Label Amendment Populations and Low-Income 2. Assessment of aggregate risks. EPA to Reduce the Pre-harvest Interval for Populations’’ (59 FR 7629, February 16, determines whether acute and chronic Caneberry Subgroup 13–07A’’ dated 1994). Since tolerances and exemptions that dietary pesticide exposures are safe by October 21, 2020 in docket ID number are established on the basis of a petition comparing aggregate exposure estimates EPA–HQ–OPP–2019–0461. under FFDCA section 408(d), such as to the acute population adjusted dose IV. International Residue Limits the tolerances in this final rule, do not and chronic population adjusted dose. require the issuance of a proposed rule, Short-, intermediate-, and chronic-term In making its tolerance decisions, EPA the requirements of the Regulatory risks are evaluated by comparing the seeks to harmonize U.S. tolerances with Flexibility Act (RFA) (5 U.S.C. 601 et estimated aggregate food, water, and international standards whenever seq.), do not apply. residential exposure to the appropriate possible, consistent with U.S. food safety standards and agricultural This action directly regulates growers, points of departure to ensure that an food processors, food handlers, and food adequate margin of exposure (MOE) practices. EPA considers the international maximum residue limits retailers, not States or Tribes, nor does exists. For linear cancer risks, EPA this action alter the relationships or calculates the lifetime probability of (MRLs) established by the Codex Alimentarius Commission (Codex), as distribution of power and acquiring cancer given the estimated responsibilities established by Congress aggregate exposure. required by FFDCA section 408(b)(4). The Codex has not established a MRL in the preemption provisions of FFDCA Acute dietary (food and drinking for sethoxydim. section 408(n)(4). As such, the Agency water) risks are below the Agency’s has determined that this action will not level of concern of 100% of the acute V. Conclusion have a substantial direct effect on States population adjusted dose (aPAD): They Therefore, tolerances are established or Tribal Governments, on the are less than 12% of the aPAD for for residues of sethoxydim, including its relationship between the National children 1 to 2 years old, the population metabolites and degradates, determined Government and the States or Tribal subgroup with the highest exposure by measuring only the sum of the Governments, or on the distribution of estimate. Chronic dietary risks are herbicide 2-[1-(ethoxyimino)butyl]-5-[2- power and responsibilities among the below the Agency’s level of concern of (ethylthio)propyl]-3-hydroxy-2- various levels of government or between 100% of the chronic population cyclohexen-1-one (CAS Reg. No. 74051– the Federal Government and Indian adjusted dose (cPAD): They are 24% of 80–2) and its metabolites containing the Tribes. Thus, the Agency has the cPAD for children 1 to 2 years old, 2-cyclohexen-1-one moiety, calculated determined that Executive Order 13132, the population subgroup with the as the stoichiometric equivalent of entitled ‘‘Federalism’’ (64 FR 43255, highest exposure estimate. sethoxydim, in or on basil, dried leaves August 10, 1999) and Executive Order For the aggregate risk assessment, at 20 ppm and basil, fresh leaves at 8 13175, entitled ‘‘Consultation and exposures to sethoxydim in food and ppm. Coordination with Indian Tribal Governments’’ (65 FR 67249, November drinking water are combined with VI. Statutory and Executive Order 9, 2000) do not apply to this action. In residential exposures for the relevant Reviews exposure duration period. Aggregate addition, this action does not impose This action establishes tolerances acute and chronic risk are equivalent to any enforceable duty or contain any under FFDCA section 408(d) in the dietary risks, which are below EPA’s unfunded mandate as described under response to a petition submitted to the level of concern, because neither acute Title II of the Unfunded Mandates Agency. The Office of Management and nor long-term residential exposures are Reform Act (UMRA) (2 U.S.C. 1501 et Budget (OMB) has exempted these types expected. seq.). of actions from review under Executive This action does not involve any The short-term aggregate risk Order 12866, entitled ‘‘Regulatory technical standards that would require assessment considers only residential Planning and Review’’ (58 FR 51735, Agency consideration of voluntary incidental oral exposures and combines October 4, 1993). Because this action consensus standards pursuant to section chronic (background) exposures with has been exempted from review under 12(d) of the National Technology the expected short-term post-application Executive Order 12866, this action is Transfer and Advancement Act exposures to children 1 to 2 years old. not subject to Executive Order 13211, (NTTAA) (15 U.S.C. 272 note). This yields an MOE of 4,400, which is entitled ‘‘Actions Concerning not of concern because it exceeds EPA’s Regulations That Significantly Affect VII. Congressional Review Act level of concern (MOEs less than or Energy Supply, Distribution, or Use’’ (66 Pursuant to the Congressional Review equal to 100). Intermediate-term FR 28355, May 22, 2001) or Executive Act (5 U.S.C. 801 et seq.), EPA will residential exposures are not expected. Order 13045, entitled ‘‘Protection of submit a report containing this rule and Finally, as stated in the June 2015 Children from Environmental Health other required information to the U.S. rulemaking, sethoxydim is not expected Risks and Safety Risks’’ (62 FR 19885, Senate, the U.S. House of to pose a cancer risk to humans. April 23, 1997), nor is it considered a Representatives, and the Comptroller

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General of the United States prior to SUMMARY: This regulation establishes an I. General Information publication of the rule in the Federal exemption from the requirement of a A. Does this action apply to me? Register. This action is not a ‘‘major tolerance for residues of Adipic acid rule’’ as defined by 5 U.S.C. 804(2). when used as an inert ingredient in You may be potentially affected by this action if you are an agricultural List of Subjects in 40 CFR Part 180 antimicrobial pesticide formulations applied to food-contact surfaces in producer, food manufacturer, or Environmental protection, public eating places, dairy-processing pesticide manufacturer. The following Administrative practice and procedure, equipment, and food-processing list of North American Industrial Classification System (NAICS) codes is Agricultural commodities, Pesticides equipment and utensils at an end-use not intended to be exhaustive, but rather and pests, Reporting and recordkeeping concentration not to exceed 100 parts requirements. provides a guide to help readers per million (ppm). Ecolab, Inc. Dated: November 5, 2020. determine whether this document submitted a petition to EPA under the applies to them. Potentially affected Marietta Echeverria, Federal Food, Drug, and Cosmetic Act entities may include: Acting Director, Registration Division, Office (FFDCA) requesting establishment of an • Crop production (NAICS code 111). of Pesticide Programs. exemption from the requirement of a • Animal production (NAICS code Therefore, for the reasons stated in the tolerance for adipic acid. This 112). preamble, EPA is amending 40 CFR regulation eliminates the need to • Food manufacturing (NAICS code chapter I as follows: establish a maximum permissible level 311). for residues of adipic acid when used in • Pesticide manufacturing (NAICS PART 180—TOLERANCES AND accordance with this exemption. code 32532). EXEMPTIONS FOR PESTICIDE CHEMICAL RESIDUES IN FOOD DATES: This regulation is effective B. How can I get electronic access to December 3, 2020. Objections and other related information? ■ 1. The authority citation for part 180 requests for hearings must be received You may access a frequently updated continues to read as follows: on or before February 1, 2020, and must electronic version of 40 CFR part 180 Authority: 21 U.S.C. 321(q), 346a and 371. be filed in accordance with the through the Government Publishing instructions provided in 40 CFR part ■ Office’s e-CFR site at http://www.ecfr. 2. In § 180.412, amend paragraph (a) 178 (see also Unit I.C. of the gov/cgi-bin/text-idx?&c=ecfr&tpl=/ by designating the table and adding in SUPPLEMENTARY INFORMATION). ecfrbrowse/Title40/40tab_02.tpl. alphabetical order in newly designated Table 1 to paragraph (a) the entries ADDRESSES: The docket for this action, C. How can I file an objection or hearing ‘‘Basil, dried leaves’’ and ‘‘Basil, fresh identified by docket identification (ID) request? leaves’’ to read as follows: number EPA–HQ–OPP–2019–0569, is Under FFDCA section 408(g), 21 available at http://www.regulations.gov U.S.C. 346a(g), any person may file an § 180.412 Sethoxydim; tolerances for or at the Office of Pesticide Programs residues. objection to any aspect of this regulation Regulatory Public Docket (OPP Docket) (a) * * * and may also request a hearing on those in the Environmental Protection Agency objections. You must file your objection Docket Center (EPA/DC), West William TABLE 1 TO PARAGRAPH (a) or request a hearing on this regulation Jefferson Clinton Bldg., Rm. 3334, 1301 in accordance with the instructions Parts per Constitution Ave. NW, Washington, DC provided in 40 CFR part 178. To ensure Commodity million 20460–0001. The Public Reading Room proper receipt by EPA, you must is open from 8:30 a.m. to 4:30 p.m., identify docket ID number EPA–HQ– Monday through Friday, excluding legal OPP–2019–0569 in the subject line on ***** holidays. The telephone number for the the first page of your submission. All Public Reading Room is (202) 566–1744, objections and requests for a hearing Basil, dried leaves ...... 20 Basil, fresh leaves ...... 8 and the telephone number for the OPP must be in writing and must be received Docket is (703) 305–5805. by the Hearing Clerk on or before ***** Due to the public health concerns February 1, 2020. Addresses for mail related to COVID–19, the EPA Docket and hand delivery of objections and Center (EPA/DC) and Reading Room is hearing requests are provided in 40 CFR 178.25(b). * * * * * closed to visitors with limited [FR Doc. 2020–26014 Filed 12–2–20; 8:45 am] In addition to filing an objection or exceptions. The staff continues to BILLING CODE 6560–50–P hearing request with the Hearing Clerk provide remote customer service via as described in 40 CFR part 178, please email, phone, and webform. For the submit a copy of the filing (excluding ENVIRONMENTAL PROTECTION latest status information on EPA/DC any Confidential Business Information AGENCY services and docket access, visit https:// (CBI)) for inclusion in the public docket. www.epa.gov/dockets. Information not marked confidential 40 CFR Part 180 FOR FURTHER INFORMATION CONTACT: pursuant to 40 CFR part 2 may be Marietta Echeverria, Registration disclosed publicly by EPA without prior [EPA–HQ–OPP–2019–0569; FRL–10015–57] Division (7505P), Office of Pesticide notice. Submit the non-CBI copy of your objection or hearing request, identified Adipic Acid; Exemption From the Programs, Environmental Protection by docket ID number EPA–HQ–OPP– Requirement of a Tolerance Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460–0001; main 2019–0569, by one of the following AGENCY: Environmental Protection telephone number: (703) 305–7090; methods: • Federal eRulemaking Portal: http:// Agency (EPA). email address: [email protected]. www.regulations.gov. Follow the online ACTION: Final rule. SUPPLEMENTARY INFORMATION: instructions for submitting comments.

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Do not submit electronically any IV. Aggregate Risk Assessment and A. Toxicological Profile information you consider to be CBI or Determination of Safety EPA has evaluated the available other information whose disclosure is toxicity data and considered their Section 408(c)(2)(A)(i) of the FFDCA restricted by statute. validity, completeness, and reliability as • allows EPA to establish an exemption Mail: OPP Docket, Environmental well as the relationship of the results of Protection Agency Docket Center (EPA/ from the requirement for a tolerance (the the studies to human risk. EPA has also DC), (28221T), 1200 Pennsylvania Ave. legal limit for a pesticide chemical considered available information NW, Washington, DC 20460–0001. residue in or on a food) only if EPA • concerning the variability of the Hand Delivery: To make special determines that the exemption is ‘‘safe.’’ sensitivities of major identifiable arrangements for hand delivery or Section 408(c)(2)(A)(ii) of the FFDCA subgroups of consumers, including delivery of boxed information, please defines ‘‘safe’’ to mean that EPA has infants and children. Specific follow the instructions at http:// determined that ‘‘there is a reasonable information on the studies received and www.epa.gov/dockets/contacts.html. certainty that no harm will result from the nature of the adverse effects caused Additional instructions on aggregate exposure to the pesticide by adipic acid in these toxicity studies commenting or visiting the docket, chemical residue, including all are discussed in this unit. along with more information about anticipated dietary exposures and all Available acute toxicity studies on dockets generally, is available at http:// other exposures for which there is adipic acid include various oral, dermal, www.epa.gov/dockets. reliable information.’’ This includes and inhalation studies which showed II. Petition for Exemption exposure through drinking water and in low toxicity. Multiple dermal and eye In the Federal Register of May 29, residential settings, but it does not irritation studies, and a dermal 2020 (85 FR 32338) (FRL–10009–84), include occupational exposure. Section sensitization study, indicated that EPA issued a document pursuant to 408(b)(2)(C) of FFDCA requires EPA to adipic acid is not a dermal irritant and FFDCA section 408, 21 U.S.C. 346a, give special consideration to exposure does not cause skin sensitization. announcing the filing of a pesticide of infants and children to the pesticide Adipic acid is an eye irritant. In petition (PP IN–11317) by Ecolab, Inc., chemical residue in establishing an available repeat dose studies, which 655 Lone Oak Drive, Eagan, MN 55121. exemption and to ‘‘ensure that there is were up to two years in duration, no adverse effects of treatment were seen The petition requested that 40 CFR a reasonable certainty that no harm will below the limit dose of 1,000 mg/kg/ 180.940(a) be amended by establishing result to infants and children from an exemption from the requirement of a day. In addition, there was no evidence aggregate exposure to the pesticide of carcinogenicity or neuropathological tolerance for residues of adipic acid chemical residue.’’ changes or effects reported in any of the when used as an inert ingredient at an EPA establishes exemptions from the studies. Adipic acid was not found to be upper limit of 100 ppm in antimicrobial requirement of a tolerance only in those genotoxic in various in vitro and in vivo pesticide formulations applied to food- cases where it can be clearly studies. contact surfaces in public eating places, demonstrated that the risks from All studies showed low acute and dairy-processing equipment, and food- aggregate exposure to pesticide repeat dose toxicity, and no processing equipment and utensils. That reproductive/developmental toxicity document referenced a summary of the chemical residues under reasonably foreseeable circumstances will pose no was seen in any of the species tested. petition prepared by Ecolab, Inc., the The primary systemic health effect petitioner, which is available in the harm to human health. In order to determine the risks from aggregate associated with adipic acid is irritation docket, http://www.regulations.gov. One of the intestinal mucosa and decreased comment was received on the notice of exposure to pesticide inert ingredients, the Agency considers the toxicity of the body weight after exposures to filing. EPA’s response to this comment concentrations >2,000 mg/kg/day. is discussed in Unit V.B. inert in conjunction with possible exposure to residues of the inert B. Toxicological Points of Departure/ III. Inert Ingredient Definition ingredient through food, drinking water, Levels of Concern Inert ingredients are all ingredients and through other exposures that occur No toxicological endpoint of concern that are not active ingredients as defined as a result of pesticide use in residential for adipic acid has been identified in the in 40 CFR 153.125 and include, but are settings. If EPA is able to determine that database. not limited to, the following types of a tolerance is not necessary to ensure ingredients (except when they have a that there is a reasonable certainty that C. Exposure Assessment pesticidal efficacy of their own): no harm will result from aggregate 1. Dietary exposure from food, feed Solvents such as alcohols and exposure to the inert ingredient, an uses, and drinking water. In evaluating hydrocarbons; surfactants such as exemption from the requirement of a dietary exposure to adipic acid, EPA polyoxyethylene polymers and fatty tolerance may be established. considered exposure under the current acids; carriers such as clay and and proposed use patterns. Dietary diatomaceous earth; thickeners such as Consistent with FFDCA section exposure to adipic acid may occur from carrageenan and modified cellulose; 408(c)(2)(A), and the factors specified in eating foods containing adipic acid wetting, spreading, and dispersing FFDCA section 408(c)(2)(B), EPA has (found naturally or as a food additive) agents; propellants in aerosol reviewed the available scientific data or eating food that comes in contact dispensers; microencapsulating agents; and other relevant information in with surfaces treated with pesticide and emulsifiers. The term ‘‘inert’’ is not support of this action. EPA has formulations containing this inert intended to imply nontoxicity; the sufficient data to assess the hazards of ingredient. In addition, exposure ingredient may or may not be and to make a determination on through drinking water is also possible. chemically active. Generally, EPA has aggregate exposure to adipic acid, However, no toxicological endpoint of exempted inert ingredients from the including exposure resulting from the concern was identified for adipic acid requirement of a tolerance based on the exemption established by this action. below the limit dose and therefore a low toxicity of the individual inert EPA’s assessment of exposures and risks quantitative assessment of dietary ingredients. associated with adipic acid follows. exposure is not necessary.

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2. Non-dietary exposure. The term E. Aggregate Risks and Determination of VII. Statutory and Executive Order ‘‘residential exposure’’ is used in this Safety Reviews document to refer to non-occupational, Taking into consideration all available This action establishes an exemption non-dietary exposure (e.g., textiles information on adipic acid, EPA has from the requirement of a tolerance (clothing and diapers), carpets, determined that there is a reasonable under FFDCA section 408(d) in swimming pools, and hard surface certainty that no harm to the general response to a petition submitted to the disinfection on walls, floors, and tables). population or any population subgroup, Agency. The Office of Management and Residential exposure to adipic acid may including infants and children, will Budget (OMB) has exempted these types occur based on its use as an inert result from aggregate exposure to adipic of actions from review under Executive ingredient in pesticide formulations acid residues. Therefore, the Order 12866, entitled ‘‘Regulatory registered for residential uses. establishment of an exemption from the Planning and Review’’ (58 FR 51735, Additional non-dietary exposure may requirement of a tolerance under 40 CFR October 4, 1993). Because this action occur from the use of adipic acid in 180.940(a) for residues of adipic acid has been exempted from review under pharmaceutical products and cosmetics. when used as an inert ingredient in Executive Order 12866, this action is However, no toxicological endpoint of antimicrobial pesticide formulations not subject to Executive Order 13211, concern was identified below the limit applied to food-contact surfaces in entitled ‘‘Actions Concerning dose for adipic acid and therefore a public eating places, dairy-processing Regulations That Significantly Affect quantitative residential exposure equipment, and food-processing Energy Supply, Distribution, or Use’’ (66 assessment for adipic acid was not equipment and utensils at a maximum FR 28355, May 22, 2001) or Executive conducted. end-use concentration of 100 ppm, is Order 13045, entitled ‘‘Protection of 3. Cumulative effects from substances safe under FFDCA section 408. Children from Environmental Health Risks and Safety Risks’’ (62 FR 19885, with a common mechanism of toxicity. V. Other Considerations Section 408(b)(2)(D)(v) of the FFDCA April 23, 1997), nor is it considered a requires that, when considering whether A. Analytical Enforcement Methodology regulatory action under Executive Order to establish, modify, or revoke an An analytical method is not required 13771, entitled ‘‘Reducing Regulations exemption, the Agency consider for enforcement purposes since the and Controlling Regulatory Costs’’ (82 ‘‘available information’’ concerning the Agency is not establishing a numerical FR 9339, February 3, 2017). This action cumulative effects of a particular tolerance for residues of adipic acid in does not contain any information pesticide’s residues and ‘‘other or on any food commodities. EPA is collections subject to OMB approval substances that have a common establishing a limitation on the amount under the Paperwork Reduction Act mechanism of toxicity.’’ of adipic acid that may be used in (PRA) (44 U.S.C. 3501 et seq.), nor does antimicrobial pesticide formulations it require any special considerations EPA has not found adipic acid to under Executive Order 12898, entitled share a common mechanism of toxicity applied to food-contact surfaces in public eating places, dairy-processing ‘‘Federal Actions to Address with any other substances, and adipic Environmental Justice in Minority acid does not appear to produce a toxic equipment, and food-processing equipment and utensils. This limitation Populations and Low-Income metabolite produced by other Populations’’ (59 FR 7629, February 16, substances. For the purposes of this will be enforced through the pesticide registration process under the Federal 1994). action, therefore, EPA has assumed that Since tolerances and exemptions that adipic acid does not have a common Insecticide, Fungicide, and Rodenticide Act (‘‘FIFRA’’), 7 U.S.C. 136 et seq. EPA are established on the basis of a petition mechanism of toxicity with other under FFDCA section 408(d), such as substances. For information regarding will not register any antimicrobial pesticide formulation applied to food- the exemption in this final rule, do not EPA’s efforts to determine which require the issuance of a proposed rule, chemicals have a common mechanism contact surfaces in public eating places, dairy-processing equipment, and food- the requirements of the Regulatory of toxicity and to evaluate the Flexibility Act (RFA) (5 U.S.C. 601 et cumulative effects of such chemicals, processing equipment and utensils pesticide formulation that exceeds an seq.), do not apply. see EPA’s website at http:// This action directly regulates growers, www.epa.gov/pesticides/cumulative. end-use concentration of adipic acid of 100 ppm. food processors, food handlers, and food D. Safety Factor for Infants and retailers, not States or tribes, nor does Children B. Response to Comments this action alter the relationships or One comment was received in distribution of power and Section 408(b)(2)(C) of the FFDCA response to the notice of filing responsibilities established by Congress requires EPA to apply an additional associated with this action; however, in the preemption provisions of FFDCA tenfold margin of safety in the case of the comment was unrelated to adipic section 408(n)(4). As such, the Agency threshold effects to ensure that there is acid and is not relevant to this action. has determined that this action will not a reasonable certainty that no harm will have a substantial direct effect on States result to infants and children from VI. Conclusions or Tribal Governments, on the aggregate exposure to the pesticide Therefore, an exemption from the relationship between the National chemical residue. As noted in Unit requirement of a tolerance is established Government and the States or Tribal IV.B., there is no indication of threshold under 40 CFR 180.940(a) for residues of Governments, or on the distribution of effects being caused by adipic acid. adipic acid (CAS Reg. No. 124–04–9) power and responsibilities among the Therefore, this requirement does not when used as an inert ingredient in various levels of government or between apply to the present analysis. Moreover, antimicrobial pesticide formulations the Federal Government and Indian due to the lack of any toxicological applied to food-contact surfaces in Tribes. Thus, the Agency has endpoints of concern, EPA conducted a public eating places, dairy-processing determined that Executive Order 13132, qualitative assessment of adipic acid, equipment, and food-processing entitled ‘‘Federalism’’ (64 FR 43255, which does not use safety factors for equipment and utensils at an end-use August 10, 1999) and Executive Order assessing risk. concentration not to exceed 100 ppm. 13175, entitled ‘‘Consultation and

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Coordination with Indian Tribal other required information to the U.S. PART 180— TOLERANCES AND Governments’’ (65 FR 67249, November Senate, the U.S. House of EXEMPTIONS FOR PESTICIDE 9, 2000) do not apply to this action. In Representatives, and the Comptroller CHEMICAL RESIDUES IN FOOD addition, this action does not impose General of the United States prior to any enforceable duty or contain any publication of the rule in the Federal ■ 1. The authority citation for part 180 unfunded mandate as described under Register. This action is not a ‘‘major continues to read as follows: Title II of the Unfunded Mandates rule’’ as defined by 5 U.S.C. 804(2). Authority: 21 U.S.C. 321(q), 346a and 371. Reform Act (UMRA) (2 U.S.C. 1501 et List of Subjects in 40 CFR Part 180 seq.). ■ 2. In § 180.940 amend the table in Environmental protection, This action does not involve any Administrative practice and procedure, paragraph (a) by adding alphabetically technical standards that would require Agricultural commodities, Pesticides the entry ‘‘Adipic acid’’ to read as Agency consideration of voluntary and pests, Reporting and recordkeeping follows: consensus standards pursuant to section requirements. 12(d) of the National Technology § 180.940 Tolerance exemptions for active Transfer and Advancement Act Dated: November 6, 2020. and inert ingredients for use in (NTTAA) (15 U.S.C. 272 note). Marietta Echeverria, antimicrobial formulations (Food-contact Acting Director, Registration Division, Office surface sanitizing solutions). VIII. Congressional Review Act of Pesticide Programs. * * * * * Pursuant to the Congressional Review Therefore, for the reasons stated in the (a) * * * Act (5 U.S.C. 801 et seq.), EPA will preamble, EPA amends 40 CFR chapter submit a report containing this rule and I as follows:

Pesticide chemical CAS Reg. No. Limits

******* Adipic acid ...... 124–04–9 ...... When ready for use, the end-use concentration is not to exceed 100 ppm.

*******

* * * * * ability of state and local governments to Synopsis [FR Doc. 2020–26005 Filed 12–2–20; 8:45 am] manage and protect local land-use 1. In this Report and Order, the BILLING CODE 6560–50–P interests. Commission revises its rule to provide DATES: Effective January 4, 2021. for streamlined state and local review of ADDRESSES: Federal Communications modifications that involve limited FEDERAL COMMUNICATIONS Commission, 45 L Street NE, ground excavation or deployment while COMMISSION Washington, DC 20554. preserving the ability of state and local 47 CFR Part 1 FOR FURTHER INFORMATION CONTACT: governments to manage and protect Georgios Leris, [email protected] local land-use interests. To facilitate the [WT Docket No. 19–250, RM–11849; FCC or Belinda Nixon, Belinda.Nixon@ collocation of antennas and associated 20–153; FRS 17230] fcc.gov, Competition & Infrastructure ground equipment, while recognizing Policy Division, Wireless the role of state and local governments Accelerating Wireless and Wireline Telecommunications Bureau. in land use decisions, the Commission Deployment by Streamlining Local SUPPLEMENTARY INFORMATION: revises section 6409(a) rules to provide Approval of Wireless Infrastructure This is a that excavation or deployment in a Modifications summary of the Commission’s Report and Order in WT Docket No. 19–250, limited area beyond site boundaries AGENCY: Federal Communications RM–11849; FCC 20–153, adopted on would not disqualify the modification of Commission. October 27, 2020, and released on an existing tower from streamlined state ACTION: Final rule. November 3, 2020. The full text of this and local review on that basis. document is available for public 2. This change is consistent with the SUMMARY: In this document, the Federal inspection online at https:// recent amendment to the Nationwide Communications Commission revises www.fcc.gov/edocs. Documents will be Programmatic Agreement (NPA) for the portions of the Spectrum Act of 2012 to available electronically in ASCII, Collocation of Wireless Antennas provide for streamlined state and local Microsoft Word, and/or Adobe Acrobat. (Collocation NPA), which now provides government review of modifications to Alternative formats are available for that, in certain circumstances, existing wireless infrastructure that people with disabilities (Braille, large excavation or deployment within the involve limited ground excavation or print, electronic files, audio format, same limited area beyond a site deployment of transmission equipment. etc.), and reasonable accommodations boundary does not warrant federal The Report and Order promotes (accessible format documents, sign historic preservation review of a accelerated deployment of 5G and other language interpreters, CART, etc.) may collocation. In addition, we revise the advanced wireless services by be requested by sending an email to definition of ‘‘site’’ in section 6409(a) facilitating the collocation of antennas [email protected] or call the Consumer & rules in a manner that will ensure that and associated equipment on existing Governmental Affairs Bureau at 202– the site boundaries from which limited infrastructure while preserving the 418–0530 (voice), 202–418–0432 (TTY). expansion is measured appropriately

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reflect prior state or local government under section 6409(a), the Commission ‘‘substantial change’’ if it entails review and approval. The Commission’s looked to analogous concerns about excavation or deployments at locations actions in this document carefully impacts on historic properties reflected of up to 30 feet in any direction outside balance the acceleration of the in implementation of the National the boundaries of a tower compound. deployment of advanced wireless Historic Preservation Act and primarily 7. On June 10, 2020, the Commission services, particularly through the use of relied on similar language in the adopted a Notice of Proposed existing infrastructure where efficient to Collocation NPA. At that time, the Rulemaking (NPRM) that sought do so, with the preservation of states’ Commission considered, but declined to comment on two issues regarding the and localities’ ability to manage and adopt, a proposal to exclude from the scope of the streamlined application protect local land-use interests. scope of ‘‘substantial change’’ any process under section 6409(a): (i) The 3. To advance ‘‘Congress’s goal of excavation or deployment of up to 30 definition of ‘‘site’’ under § 1.6100(b)(6); facilitating rapid deployment [of feet in any direction of a site, a proposal and (ii) the scope of modifications wireless broadband service]’’ and to that was consistent with an exclusion under § 1.6100(b)(7)(iv). (85 FR 39859, provide clarity to the industry, the from section 106 review for replacement July 2, 2020). The Commission proposed Commission in 2014 adopted rules to towers in the Wireless Facilities NPA. In to revise the definition of site ‘‘to make implement section 6409(a) of the reconciling different standards for clear that ‘site’ refers to the boundary of Spectrum Act of 2012 (80 FR 1237, potentially analogous deployments in the leased or owned property January 8, 2015). Section 6409(a) the NPAs, the Commission reasoned surrounding the tower and any access or provides, in relevant part, that that the activities covered under section utility easements currently related to the ‘‘[n]otwithstanding [47 U.S.C. 332(c)(7)] 6409(a) ‘‘are more nearly analogous to site as of the date that the facility was or any other provision of law, a state or those covered under the Collocation last reviewed and approved by a local government may not deny, and [NPA] than under the replacement locality.’’ The Commission also shall approve, any eligible facilities towers exclusion in the [Wireless proposed ‘‘to amend § 1.6100(b)(7)(iv) request for a modification of an existing Facilities] NPA,’’ but the Commission so that modification of an existing wireless tower or base station that does did not explore the reasoning for the facility that entails ground excavation or not substantially change the physical discrepancy between the NPAs, nor did deployment of up to 30 feet in any dimensions of such tower or base it further explain why it chose to borrow direction outside the facility’s site will station.’’ Among other matters, the 2014 from the older NPA instead of the more be eligible for streamlined processing Infrastructure Order established a 60- modern one. In addition, the under section 6409(a).’’ The NPRM day period in which a state or local Commission did not make a asked, in the alternative, whether the government must approve an ‘‘eligible determination that it would be Commission ‘‘should revise the facilities request.’’ (80 FR 1267, January unreasonable to use 30 feet as a definition of site in § 1.6100(b)(6), as 8, 2015). The Commission’s rules define touchstone for defining what types of proposed above, without making the ‘‘eligible facilities request’’ as ‘‘any excavations would ‘‘substantially proposed change to § 1.6100(b)(7)(iv) for request for modification of an existing change the physical dimensions of [an excavation or deployment of up to 30 tower or base station that does not existing] tower or base station.’’ Rather, feet outside the site.’’ In addition, the substantially change the physical the Commission established a NPRM asked ‘‘whether to define site in dimensions of such tower or base reasonable, objective, and concrete set § 1.6100(b)(6) as the boundary of the leased or owned property surrounding station, involving: (i) Collocation of new of criteria to eliminate the need for transmission equipment; (ii) Removal of the tower and any access or utility protracted local zoning review, in transmission equipment; or (iii) easements related to the site as of the furtherance of the goals of the statute, by Replacement of transmission date an applicant submits a drawing guidance from the consensus equipment.’’ (80 FR 1252). modification request.’’ Finally, the represented by the approach taken in 4. The 2014 Infrastructure Order NPRM asked about alternatives to the the Collocation NPA. That same adopted objective standards for proposals, costs, and benefits. determining when a proposed Collocation NPA, however, was recently 8. After reviewing the record in this modification would ‘‘substantially amended to reflect an updated proceeding, the Commission makes change the physical dimensions’’ of an consensus on what might be best targeted revisions to § 1.6100(b)(7)(iv) existing tower or base station. Among regarded as a substantial increase in the and (b)(6) of its rules to broaden the other standards, the Commission size of an existing tower, as it excludes scope of wireless facility modifications determined ‘‘that a modification is a a collocation from section 106 review if that are eligible for streamlined review substantial change if it entails any it involves excavation within 30 feet under section 6409(a). The Commission excavation or deployment outside the outside the boundaries of the tower site. has considered collocation a tool for current site of the tower or base 6. On August 27, 2019, the Wireless advancing wireless services’ station.’’ (80 FR 1254). The Commission Infrastructure Association (WIA) filed a deployment for over three decades. As defined ‘‘site’’ for towers not located in Petition for Declaratory Ruling (84 FR the Commission noted in the 2014 the public rights-of-way as ‘‘the current 50810, September 26, 2019) requesting Infrastructure Order, collocation ‘‘is boundaries of the leased or owned that the Commission clarify that, for often the most efficient and economical property surrounding the tower and any towers other than towers in the public solution for mobile wireless service access or utility easements currently rights-of-way, the ‘‘current site’’ for providers that need new cell sites to related to the site,’’ (80 FR 1255) and it purposes of § 1.6100(b)(7)(iv) is the expand their existing coverage area, defined ‘‘site’’ for other eligible support property leased or owned by the increase their capacity, or deploy new structures as being ‘‘further restricted to applicant at the time it submits a section advanced services.’’ The actions the that area in proximity to the structure 6409(a) application and not the initial Commission takes in this document will and to other transmission equipment site boundaries. On the same day, WIA further streamline the approval process already deployed on the ground.’’ (Ibid). also filed a Petition for Rulemaking for using existing infrastructure to 5. In adopting the standard for (Ibid) requesting that the Commission expedite wireless connectivity efforts excavation and deployment that would amend its rules to establish that a nationwide while preserving localities’ be considered a substantial change modification would not cause a ability to manage local zoning.

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9. First, the Commission amends doing so the Commission continues to an inconsistency between the § 1.6100(b)(7)(iv) to provide that, for believe that it is appropriate to consider Collocation NPA and the Wireless towers not located in the public rights- in this context the analogous line drawn Facilities NPA (85 FR 51357, August 20, of-way, a modification of an existing site in the federal historic preservation 2020). that entails ground excavation or context as a relevant benchmark. 13. The Amended Collocation NPA deployment of transmission equipment 11. As an initial matter, the now provides that, for the purpose of of up to 30 feet in any direction outside Commission recognizes that it relied on determining whether a collocation may a tower’s site will not be disqualified the Wireless Facilities NPA and be excluded from section 106 review, a from streamlined processing under Collocation NPA to inform its adoption collocation is a substantial increase in section 6409(a) on that basis. In general, of initial rules implementing section the size of the tower if it ‘‘would expand § 1.6100(b)(7) describes when an eligible 6409(a). In particular, the Commission the boundaries of the current tower site facilities request will ‘‘substantially stated that ‘‘the objective test for by more than 30 feet in any direction or change the physical dimensions’’ of a ‘substantial increase in size’ under the involve excavation outside these facility under section 6409(a). Because Collocation [NPA] should inform its expanded boundaries.’’ In adopting that the statutory term ‘‘substantially consideration of the factors to consider change, the Amended Collocation NPA change’’ is ambiguous, § 1.6100(b)(7) when assessing a ‘substantial change in stated that, among other reasons, the elaborates on the phrase by providing physical dimensions,’’’ and that this parties ‘‘developed this second numerical and objective criteria for approach ‘‘reflects the Commission’s amendment to the Collocation determining when a proposed general determination that definitions in Agreement to allow project proponents expansion will ‘‘substantially change’’ the Collocation [NPA] and [Wireless the same review efficiency [applicable the dimensions of a facility. For the Facilities] NPA should inform the to tower replacements in the Wireless reasons explained more fully below, the Commission’s interpretation of similar Facilities NPA] in regard to limited Commission concludes that proposed terms in [s]ection 6409(a).’’ With respect excavation beyond the tower site ground excavation or deployment of up to excavation and deployment boundaries for collocation, thereby to 30 feet in any direction outside a associated with a modification of an encouraging project proponents to tower’s site is sufficiently modest so as existing structure, the Commission conduct more collocation activities not to ‘‘substantially change the relied on a provision in the Collocation instead of constructing new towers physical dimensions’’ of a tower or base NPA and determined that ‘‘a . . . .’’ The parties therefore recognized station, and that this amendment to the modification is a substantial change if it the limited effect that an up to 30-foot Commission’s rules thus represents a entails any excavation or deployment compound expansion would impose on permissible construction of section outside the current site of the tower or the site, which is also consistent with 6409(a). base station.’’ Further, the Commission the Commission’s rationale in adopting considered, but declined to adopt, a the replacement tower exclusion in the 10. In promulgating the initial rules to proposal to exclude from the scope of Wireless Facilities NPA. Indeed, in the implement section 6409(a), the ‘‘substantial change’’ any excavation or 2004 Report and Order (70 FR 556, Commission determined that ‘‘an deployment of up to 30 feet in any January 4, 2005) implementing the objective definition’’ of what constitutes direction from a site’s boundaries, Wireless Facilities NPA, the a substantial change ‘‘will provide an which would have been consistent with Commission concluded that a 30-foot appropriate balance between municipal an exclusion from section 106 review standard was ‘‘reasonable and flexibility and the rapid deployment of for replacement towers in the Wireless appropriate,’’ and reasoned that covered facilities.’’ With respect to Facilities NPA. Importantly, the ‘‘construction and excavation to within excavation and deployment in Commission did not characterize the 30- 30 feet of the existing leased or owned association with modifications to foot standard in the Wireless Facilities property means that only a minimal existing structures, the Commission NPA to be an unreasonable choice. The amount of previously undisturbed found that the appropriate standard for Commission elected to follow the ground, if any, would be turned, and what constitutes a substantial change language in the Collocation NPA given that would be very close to the existing was any excavation or deployment commonalities between the types of construction.’’ The Commission’s outside of the site boundaries. Here, the deployments referred to in section 6409 decision to permit an eligible facilities Commission concludes that a revision to and the types of deployments covered request to include limited excavation this standard is warranted by certain under the Collocation NPA, as well as and deployment of up to 30 feet in any changes since its initial determination: input from industry and localities. direction harmonizes its rules under The recent recognition by the Advisory 12. The Collocation NPA was recently section 6409(a) with permitted Council on Historic Preservation and amended, however, to align with the compound expansions for exclusion the National Conference of State Wireless Facilities NPA, reflecting a from section 106 review for replacement Historic Preservation Officers of 30 feet recognition that, in the context of towers under the Wireless Facilities as an appropriate threshold in the federal historic preservation review, NPA and collocations under the context of federal historic preservation permitting a limited expansion beyond Collocation NPA. review of collocations; and the ongoing the site boundaries to proceed without 14. In that regard, the Commission evolution of wireless networks that rely substantial review encourages disagrees with the localities’ argument on an increasing number of collocations, collocations without significantly that the Collocation NPA ‘‘has no where they are an efficient alternative to affecting historic preservation interests. bearing on [this] matter.’’ The definition new tower construction, to meet the Specifically, on July 10, 2020, the of ‘‘substantial increase in size of the rising demand for advanced wireless Wireless Telecommunications Bureau tower’’ in the Collocation NPA was a services. In light of these changes, the Chief (on delegated authority from the primary basis for the Commission’s Commission concludes that it is Commission), the Advisory Council on decision in the 2014 Infrastructure reasonable to adjust the line drawn by Historic Preservation, and the National Order to define a substantial change as the Commission in 2014 for streamlined Conference of State Historic any excavation or deployment outside treatment of excavations or deployments Preservation Officers executed the the boundaries of a tower site. associated with collocations, and in Amended Collocation NPA to eliminate Accordingly, the amendment to the

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Collocation NPA to provide that in the context of historic preservation the Commission’s determination in excavations of up to 30 feet of the review of collocations, the Commission 2014, ‘‘will provide an appropriate boundaries of a site is not a substantial finds it reasonable to adjust the line balance between municipal flexibility increase in size provides support for the drawn by the Commission in 2014 for and the rapid deployment of covered Commission’s decision in this Report determining whether limited compound facilities.’’ Indeed, the record reflects and Order to once again make the expansion is a substantial change that that the deployment of transmission section 6409(a) rules consistent with the disqualifies a modification from equipment within the expanded 30-foot Collocation NPA. Retaining the existing eligibility for streamlined treatment. area will be limited, buttressing the definition despite the amendment to the 16. The Commission also finds that Commission’s view that 30 feet is a Collocation NPA could create confusion streamlined treatment of limited reasonable limit to expansion that does and invite uncertainty. compound expansions will promote not constitute a substantial change and 15. In addition, the Commission finds public safety and network resiliency. therefore should be subject to that the revised 30-foot standard is For example, the Commission notes that streamlined review under section 6409 supported by the current trends toward Crown Castle states that more than 40 and the Commission’s implementing collocations and technological changes percent of its site expansions in the past regulations. Crown Castle states that the that the record evidences while 18 months were solely for ‘‘adding 30-foot standard ‘‘will be sufficient to preserving localities’ zoning authority. backup emergency generators to add accommodate the types of minor Collocations necessarily include resiliency to the network.’’ And WIA equipment additions that Crown Castle states that, ‘‘in many cases, the need for installing transmission equipment that must often make as part of a collocation a limited expansion of the compound is supports the tower antenna on a site. or other site modification.’’ Crown being driven by public safety demands Industry commenters claim that ‘‘[t]he Castle presents several representative and the desire to improve network majority of existing towers were built examples of proposed minor site resiliency.’’ The Commission’s rule many years ago and were intended to expansions, which include ‘‘additional change will also promote public safety support the operations of a single equipment, equipment upgrades, new in another context—industry carrier.’’ Following the 2014 collocations, and back-up generator commenters state that the proposed rule Infrastructure Order’s promotion of installations.’’ These examples changes will ensure expeditious and collocations, more towers now house demonstrate that compound expansions effective deployment of FirstNet’s occur as close to the tower as possible, several operators’ antennas and other network, which Congress directed to transmission equipment, and industry as ‘‘customers typically require their leverage collocation on existing equipment to be in close proximity to commenters assert that, in many cases, infrastructure ‘‘to the maximum extent any space that was once available at the tower, their other equipment, power economically desirable.’’ AT&T, for sources, available fiber, and any back-up those tower sites has been used. As a example, states that ‘‘many collocations result, there is less space at tower sites power supply.’’ These examples also on existing towers being performed to demonstrate that construction within a for additional collocations without build a public safety broadband network minor modifications to sites to 30-foot perimeter of an existing site for [FirstNet] entail site expansions to would not result in what could be accommodate the expansion of add generators as well as Band 14 equipment serving existing operators at considered substantial changes to the equipment.’’ The Commission therefore physical footprint of existing sites, the sites and the addition of new agrees with commenters that these equipment serving new operators at the especially when considered in changes will promote public safety. conjunction with other limitations in sites. As NTCA states, ‘‘[l]ike other 17. The Commission concludes that the Commission’s rules that it is not wireless providers, NTCA members 30 feet is an appropriate threshold. The altering. often find that colocations on towers objective standard the Commission 19. Localities generally oppose any require the additional installation of adopts in this document is consistent revision to the Commission’s existing . . . facilities necessary to support with the current collocation ‘‘substantial change’’ definition that transmission equipment. This has marketplace and with the threshold would enable streamlined treatment of become increasingly difficult as towers adopted in the Wireless Facilities NPA modifications involving compound built to hold one carrier’s facilities may and recently included in the Amended expansion outside of a site,1 but request be used to support those utilized by Collocation NPA. In affirming the 2014 multiple wireless providers.’’ Further, Infrastructure Order, the Fourth Circuit 1 To the extent that the localities’ opposition to additional space is generally necessary stated that the order ‘‘provide[d] our decision rests on the notion that an expansion to add the latest technologies enabling objective and numerical standards to is only permitted if it involves deployment on the 5G services, such as multi-access edge establish when an eligible facilities existing tower as opposed to within the site around computing, which requires more space request would ‘substantially change the the tower, we reject that argument. The 2014 rules already permit streamlined treatment of than other collocation infrastructure. physical dimensions’ ’’ of a site. deployments around the tower as long as such Given the need for more space on the (Montgomery County, Md. v. FCC, 811 deployments stay within the current boundaries of ground to accommodate a growing F.3d at 130; see also id. at 131 n.8). the leased or owned property surrounding the tower number of facility modifications, the Here, the Commission extends those and any access or utility easements currently related to the site. See, e.g., 2014 Infrastructure Commission finds that streamlined objective and numerical standards in a Order, 29 FCC Rcd at 12949, para. 198; 47 CFR treatment of limited compound manner that reflects the recent 1.6100(b)(6). As discussed below, the permissible expansions is essential to achieve the recognition of 30 feet as an appropriate modifications under our new rules would relate degree of accelerated advanced wireless standard in the federal historic only to equipment that ‘‘facilitates transmission for any Commission-licensed or authorized wireless network deployment that will best serve preservation context and the changes in communication service’’ from the existing tower, the public interest. Indeed, WIA states the collocation marketplace, which is consistent with the statute and definitions in that the 30-foot standard ‘‘appropriately lacking space for collocations. § 1.6100. See 47 CFR 1.6100(b)(8) (defining provides a reasonable and realistic 18. The Commission believes that its ‘‘transmission equipment’’). Accordingly, the actions in this document, which reflect deployment of such equipment would clearly degree of flexibility.’’ Further, in light of impact the equipment touching that structure. It is these developments and the recognition the Amended Collocation NPA and thus more than reasonable for the Commission to of a new compound expansion standard collocation marketplace changes since rely on its statutory authority to classify such

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that, if such changes nonetheless are that, given the limited types of substantial change that does not warrant made, they should be limited in certain transmission equipment deployed for streamlined treatment under section ways. First, the National Association of collocations, such a restriction is not 6409(a). Those criteria, which the Telecommunication Officers and necessary to consider excavation or Commission does not alter in this Advisors (NATOA) and Local deployment within the 30-foot document, provide further limitation on Governments express concern that the expansion area to be outside the scope the size or scope of a modification that rule change with respect to compound of a substantial change. Additionally, involves excavation or deployment expansion could be interpreted to size restrictions based on current within 30 feet of the site boundaries. For permit the deployment of new towers equipment may unnecessarily restrict example, those criteria limit the within the expanded area, and they the deployment of future technology, modifications that would qualify for request that the Commission limit the which may include larger transmission streamlined treatment by the number of permissible deployment within the equipment than currently deployed or additional equipment cabinets and by expanded area to transmission available. Finally, the other substantial the increase in height and girth of the equipment. The Commission agrees that change limitations in § 1.6100(b)(7) tower. the deployments referenced in continue to apply to modifications 23. The Commission’s limited § 1.6100(b)(7)(iv) are deployments of under section 6409(a). adjustment to the definition of transmission equipment. Under the 22. Fourth, NATOA and Local substantial change in the context of Commission’s current rules, any eligible Governments assert that setting a 30-foot excavations or deployments is further supported by land-use laws in several facilities request—a request that is limit on excavation or deployment states. In particular, the Commission eligible for section 6409(a) treatment— outside site boundaries, without regard observes that at least ‘‘eight states have must involve the collocation, to the size of the existing tower site, passed laws that expressly permit replacement, or removal of transmission could permit substantial changes to compound expansion within certain equipment. Accordingly, any qualify for streamlined treatment. In limits . . . under an exempt or deployment outside the site boundary particular, NATOA and Local expedited review process.’’ Most of that is eligible for section 6409(a) Governments propose that, to the extent these laws allow expansion beyond 30 treatment under § 1.6100(b)(7)(iv), the Commission revises its ‘‘substantial feet from the approved site. As Crown including deployments within 30 feet of change’’ definition, the compound the site boundary for a tower outside the Castle states, ‘‘these state laws are a expansion standard should be ‘‘the benefit to both the wireless industry and public rights-of-way, would be limited lesser of the following distance[s] from to the deployment of transmission local officials. They permit the wireless the current site (not including industry to meet the burgeoning equipment, not new towers. easements related to the site): a. 20% of 20. Second, NATOA and Local network demands while also providing the length or width of the current site Governments propose that the site certainty and clarity to all involved.’’ measured as a longitudinal or boundary from which a compound 24. The Commission finds that the latitudinal line from the current site to expansion will be measured should standard it adopted in this document the excavation or deployment; or b. 30 exclude easements related to that site. continues to be a reasonable line feet.’’ The Commission declines to The Commission agrees. The definition drawing exercise in defining adopt this proposal because, on balance, of ‘‘site’’ in the Commission’s current ‘‘substantial change,’’ and it reflects a the potential problems it could create rules, for towers other than towers in more appropriate balancing of the outweigh the potential benefits it could the public rights-of-way, is ‘‘the current promotion of ‘‘rapid wireless facility achieve. A standard of ‘‘20% of the boundaries of the leased or owned deployment and preserving states’ and length or width of the current site’’ property surrounding the tower and any localities’ ability to manage and protect would be difficult to administer, given access or utility easements currently local land-use interests’’ than the that a site boundary is not necessarily a related to the site.’’ The Commission Commission articulated in 2014. In that symmetrical shape. In addition, while finds, though, that providing a 30-foot regard, the Commission finds that it is the record supports the determination expansion for excavation or deployment in the public interest to modify its prior that a 30-foot expansion would be along an easement related to the site is decision on what constitutes substantial sufficient to accommodate minor not necessary to meet the goal of change within the context of excavation equipment additions, the record does facilitating wireless infrastructure or deployment. not provide support for the deployment, because it is more likely 25. In addition to amending determination that the ‘‘20%’’ standard that additional equipment will need to § 1.6100(b)(7)(iv), the Commission would accomplish this goal. Moreover, revises § 1.6100(b)(6) of the be placed in a limited area outside the adopting the ‘‘20%’’ proposal would Commission’s rules to define the current leased or owned property rather than provide limited additional benefit in boundaries of the ‘‘site’’ of a tower outside the easement related to the site. addressing the concern raised by outside of public rights-of-way in a Further, excavation or deployment in an NATOA and Local Governments. manner relative to the prior approval area 30 feet outside an easement, which Because a small tower site typically is required by the state or local could be miles in length, could result in associated with a small tower that has government. In conjunction with a substantial change that would not be limited space for additional antennas, it § 1.6100(b)(7), § 1.6100(b)(6) informs entitled to streamlined treatment under is unlikely that operators would need to when excavation or deployment section 6409(a). place a significant amount of additional associated with a modification will 21. Third, NATOA and Local qualifying transmission equipment in an ‘‘substantially change the physical Governments request that the area outside the site boundaries. In dimensions’’ of a facility under section Commission restrict the size of addition, any modification to an 6409(a). While the word ‘‘site’’ does not transmission equipment deployed existing tower that involves excavation itself appear in section 6409, outside the site. The Commission finds or deployment within the 30-foot § 1.6100(b)(7)(iv) uses the term in expanded area will be subject to the describing when excavation or deployment as a modification of that tower and to expand the surrounding area to accommodate such other criteria in the Commission’s rules deployment might be so distant from an deployment. for determining whether there is a existing structure that such

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modifications would ‘‘substantially the passage of the Spectrum Act, uncertainty in determining whether a change the physical dimensions’’ of the whichever is greater.’’ In adopting that particular approval meets that standard. facility. In amending its current standard, the Commission noted that Second, non-discretionary approvals definition, the Commission supplies a ‘‘since the Spectrum Act became law, could include instances where a temporal baseline against which to approval of covered requests has been locality’s review is limited by state law measure whether a proposed mandatory and therefore, approved rather than by section 6409(a), and the modification would ‘‘substantially’’ changes after that time may not Commission does not find it appropriate change the facility. For the reasons establish an appropriate baseline for it to engage in line drawing under explained more fully below, the because they may not reflect a siting section 6409(a) based on potential Commission thinks that this amendment authority’s judgment that the modified interaction between state and local law. represents a reasonable construction of structure is consistent with local land 29. The Commission declines to adopt the ambiguous statutory language; use values.’’ Similarly, in the the industry’s ‘‘hybrid’’ definition of ascertaining whether a modification Commission’s recent Declaratory Ruling ‘‘site.’’ Specifically, Crown Castle claims ‘‘substantially changes’’ an existing (85 FR 45126, July 27, 2020), it clarified that the industry has interpreted and structure requires establishing a that ‘‘existing’’ concealment elements relied on the definition of ‘‘site’’ to baseline against which to measure the ‘‘must have been part of the facility that mean the boundaries of the leased or proposed change. Here, because the was considered by the locality at the owned property as of the date an statutory language involves streamlined original approval of the tower or at the applicant files an application with the approval of modifications to existing modification to the original tower, if the locality. The industry therefore facilities, it is reasonable, based on the approval of the modification occurred proposes a hybrid approach, which statutory language, to measure the prior to the Spectrum Act or lawfully urges us to define site as of ‘‘the later boundaries of a site by reference to outside of the section 6409(a) process of (a) [the date that the Commission when a state or local government last (for instance, an approval for a issues a new rule under the [NPRM]]; or had the opportunity to review or modification that did not qualify for (b) the date of the last review and approve the structure that the applicant streamlined section 6409(a) treatment).’’ approval related to said tower by a state or local government issued outside of seeks to modify, if such approval 28. The Commission finds that it is in occurred prior to section 6409 or the framework of 47 U.S.C. 1455(a) and the public interest to use similar text otherwise outside of the section 6409(a) these regulations promulgated and reasoning in adopting the revised process. After all, the objective of the thereunder.’’ Adopting that proposal definition of ‘‘site’’ in this Report and statute is to streamline approval of would risk permitting a tower owner to Order. Here, the Commission similarly additions to structures that were already file an eligible facilities request even if defines what would constitute a approved. it may have substantially increased the 26. Because the Commission’s actions substantial change to infrastructure that size of a tower site prior to the adoption in this document permit streamlined was previously approved by localities of this Report and Order and without processing for modifications that entail under applicable local law—in this case, any necessary approval from a locality. ground excavation or deployment up to in the context of excavation or Indeed, several localities caution against 30 feet outside a current site, it finds it deployment relative to the boundaries of the industry’s proposal. They raise necessary to clarify and provide greater a site. The Commission revises the concerns that adopting the industry’s certainty to applicants and localities definition of ‘‘site’’ to provide that the proposed definition would create about the appropriate temporal baseline current boundaries of a site are the ‘‘unending accretion of [a] site by for evaluating changes to a site. While boundaries that existed as of the date repeated applications for expansion.’’ the Commission did not have reason to that the original support structure or a The Commission shares those concerns, elaborate on the meaning of a current modification to that structure was last and finds that its revision addresses site in the 2014 Infrastructure Order, reviewed and approved by a state or them by ensuring that a locality has because it defined any excavation or local government, if the approval of the reviewed and approved the eligible deployment outside a site as a modification occurred prior to the support structure that is the subject of substantial change, the Commission did Spectrum Act or otherwise outside of the eligible facilities request outside of establish other temporal reference the section 6409(a) process. Localities the section 6409(a) process, while points for evaluating other substantial assert that the definition of ‘‘site’’ recognizing that the boundaries may change criteria, including height should ensure that the ‘‘facility was last have changed since the locality initially increases and concealment elements. reviewed and approved by a locality approved the eligible support structure. The Commission therefore bases its with full discretion’’ and not as an Further, the Commission maintains the revision to the definition of ‘‘site’’ on eligible facilities request. The 2014 Infrastructure Order’s approach the terminology and reasoning Commission agrees with commenters that a locality ‘‘is not obligated to grant articulated by the Commission in those that a site’s boundaries should not be a collocation application under [s]ection related contexts, which have been measured—for purposes of setting the 6409(a)’’ if ‘‘a tower or base station was upheld as a permissible construction of 30-foot distance in a request for constructed or deployed without proper an ambiguous statutory provision. modification under section 6409(a)— review, was not required to undergo 27. Specifically, in the 2014 from the expanded boundary points that siting review, or does not support Infrastructure Order, the Commission were established by any approvals transmission equipment that received found that, in the context of height granted or deemed granted pursuant to another form of affirmative State or local increases, ‘‘whether a modification an ‘‘eligible facilities request’’ under regulatory approval[.]’’ constitutes a substantial change must be section 6409(a). The Commission does 30. Crown Castle also proposes that, determined by measuring the change in not agree, however, with localities’ to the extent that the Commission height from the dimensions of the framing of the definition of ‘‘site’’ in revises the definition of ‘‘site’’ as ‘tower or base station’ as originally terms of the broad concept of discretion. proposed in the NPRM, it should revise approved or as of the most recent First, a standard that relies on whether the language to provide that the site modification that received local zoning the locality has ‘‘full discretion’’ to boundaries are determined as of the date or similar regulatory approval prior to make a decision would create a locality ‘‘last reviewed and issued a

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permit,’’ rather than as of the date the have imposed or granted within the proposed modification ‘substantially locality last reviewed and approved the allowed expansion (e.g., storm drain changes the physical dimensions’ ’’ of site. Crown Castle claims that, contrary easement) at the time of the last review an eligible support structure. (Id. at 129 to an approval, a ‘‘permit . . . applies by a locality. The Commission also n.5). The Report and Order’s revisions to a wide variety of processes, and clarifies that the revised definition of to the terms ‘‘site’’ and ‘‘substantial represents a tangible and unambiguous ‘‘site’’ does not restrict a locality from change’’ ensure that wireless event[.]’’ The Commission declines to issuing building permits (e.g., electrical) deployments will continue while adopt Crown Castle’s proposal, as the or approving easements within the preserving localities’ site review and mere issuance of a permit (e.g., an expanded boundaries (e.g., a sewer or approval process. electrical permit) does not necessarily storm drain easement; a road; or a bike 36. Second, some localities argue that involve a locality’s review of the eligible path). The Commission further clarifies, the Commission failed to provide the support structure, and thus would not however, that changes in zoning specific rule language in the NPRM and necessarily provide an opportunity for regulations since the last local that the NPRM contains several the locality to take into account an government review would not ambiguities. Virginia Localities claim increase in the size of the site associated disqualify from section 6409(a) that it would be ‘‘very difficult to assess with that structure.2 treatment those compound expansions the potential practical effects of the 31. Accordingly, the Commission that otherwise would be permitted proposed amendment to the EFR Rule revises § 1.6100(b)(6) to read as set out under its revisions. without language to evaluate.’’ Local in the regulatory text below. 34. While localities raise health and Governments claim that, among other 32. The Commission emphasizes that safety concerns with modifying the issues, the NPRM is ambiguous on the its revisions to the compound expansion scope of substantial change, the operative date of the approval, the provision in § 1.6100(b)(7)(iv) and to the Commission observes that the operative boundaries of the proposed definition of ‘‘site’’ in § 1.6100(b)(6) do modifications it makes in this document expansion, and whether the definition not apply to towers in the public rights- do not affect localities’ ability to address of ‘‘site’’ will provide for other eligible of-way. The 2014 Infrastructure Order those concerns. The Commission support structures. Western provided for streamlined review in more previously has clarified that neither the Communities Coalition claims that the narrowly targeted circumstances with statute nor its rules preempt localities’ NPRM ‘‘appears to suggest that various respect to towers in the public rights-of- health and safety requirements or their rule changes might be limited to ‘macro way, and the Commission leaves those procedures for reviewing and enforcing tower compounds.’ ’’ distinctions unchanged. The compliance with such requirements, 37. These arguments lack merit. The Commission has recognized that and the Commission reaffirms this APA requires that an agency’s notice of activities in public rights-of-way ‘‘are conclusion in this document. The proposed rulemaking must include more likely to raise aesthetic, safety, and Commission emphasizes that section ‘‘either the terms or substance of the other issues,’’ and that ‘‘towers in the 6409(a) ‘‘does not preclude States and proposed rule or a description of the public rights-of-way should be subject localities from continuing to require subjects and issues involved.’’ The D.C. to the more restrictive . . . criteria compliance with generally applicable Circuit has held that a notice of applicable to non-tower structures health and safety requirements on the proposed rulemaking meets the rather than the criteria applicable to placement and operation of backup requirements of administrative law if it other towers.’’ The record reflects power sources, including noise control ‘‘provide[s] sufficient factual detail and agreement by both industry and locality ordinances if any.’’ The Commission rationale for the rule to permit commenters that the Commission’s rule finds that its revision strikes the interested parties to comment change to provide for compound appropriate balance between promoting meaningfully.’’ (Honeywell expansion should not apply to towers in rapid wireless facility deployment while International, Inc. v. EPA, 372 F.3d 441, the public rights-of-way. The preserving localities’ local-use 445 (D.C. Cir. 2004) (internal quotation Commission’s revised compound authority. marks omitted)). The NPRM in this expansion rule also does not apply to 35. Finally, the Commission disagrees proceeding did just that. Not only did non-tower structures (e.g., base with the contentions of some localities the Commission include the substance stations), which ‘‘use very different that it lacks the legal authority to adopt of the proposed rule and describe the support structures and equipment some or all of the rule changes that it subjects and issues involved, it also configurations’’ than towers. promulgates in this document, or that clearly proposed specific language for 33. The Commission also emphasizes the Administrative Procedure Act the definition of ‘‘site’’ and the revision that its actions here are not intended to otherwise precludes such action. to ‘‘substantial change,’’ and it offered affect any setback requirements that Localities allege several infirmities. specific alternatives and sought may apply to a site, and that it preserves First, Virginia Localities argue that comment on other possible options. The localities’ authority to impose Congress limited the Commission’s actions the Commission takes in this requirements on local-government authority to changes to the dimensions document reflect commenters’ property. Further, the expansion of up of towers and base stations only, and responses to the NPRM. For example, in to 30 feet in any direction is subject to not to the underlying site. The response to the Commission’s proposed any land-use requirements or Commission disagrees with that definition of ‘‘site,’’ it establishes site permissions that a local authority may artificial distinction. A tower cannot boundaries as those that existed as of exist without a site. And ‘‘[t]here is no the date that the original support 2 Crown Castle’s proposal would also introduce question that [certain] terms of the structure or a modification to that more uncertainty than it purports to cure. A locality Spectrum Act . . . are ambiguous,’’ structure was last reviewed and may issue building, electrical, or other permits for a site without reviewing the eligible support including what constitutes substantial approved by a state or local government, structure on that site. A permit may therefore not change to a site. (Montgomery County, if the approval of the modification constitute a ‘‘proper review’’ of a site. Review and Md. v. FCC, 811 F.3d at 129; id. at 130). occurred prior to the Spectrum Act or approval of the eligible support structure, on the The Fourth Circuit determined that the otherwise outside of the section 6409(a) other hand, provides an opportunity for the locality to take into account an increase in the size of the Commission can ‘‘establish[] objective process. Furthermore, various changes site. criteria for determining when a the Commission is making to the

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proposed language are reasonably commenters have had insufficient time economic opportunities across the foreseeable modifications designed to to comment are therefore contradicted nation. More specifically, the Report prevent any confusion that the proposed by the record. and Order revises the Commission’s language might have caused based on 40. Accordingly, the Commission rules to provide that the modification of concerns that commenters raised. For revises the compound expansion an existing tower outside the public example, in defining ‘‘site,’’ the provision in § 1.6100(b)(7)(iv) and the rights-of-way that entails ground Commission substitutes the term definition of ‘‘site’’ in § 1.6100(b)(6). excavation or deployment of ‘‘eligible support structure,’’ a defined The Commission finds that the revisions transmission equipment up to 30 feet in term, for the proposed use of the word it adopts in this document will any direction outside the site will be ‘‘facility,’’ which is not defined in streamline the use of existing eligible for streamlined processing § 1.6100 of its rules. Further, the NPRM infrastructure for the deployment of 5G under section 6409(a) review. The also proposed specific alternatives. All and other advanced wireless networks Report and Order clarifies that the site localities that allege ambiguities raised while preserving localities’ ability to boundary from which the 30 feet is meaningful comments and opined on review and approve an eligible support measured excludes any access or utility the specific rule changes that the structure. easements currently related to the site. Commission adopts in this document. 41. Final Regulatory Flexibility It also revises the Commission’s rules to 38. Third, Local Governments claim Analysis. As required by the Regulatory clarify that a site’s current boundaries that any collocation policy modification Flexibility Act of 1980, as amended are the boundaries that existed as of the should be achieved through 47 U.S.C. (RFA), the Commission has prepared a date that the original support structure 332. The Commission disagrees. Final Regulatory Flexibility Analysis or a modification to that structure was Congress has directed the Commission (FRFA) concerning the possible impact last reviewed and approved by a state or to ‘‘encourage the rapid deployment of of the rule changes contained in this local government, if the approval of the telecommunications services,’’ Report and Order on small entities. modification occurred prior to the including with section 6409(a), in Pursuant to the RFA, a Final Regulatory Spectrum Act or otherwise outside of which Congress specifically addressed Flexibility Analysis is set forth in the the section 6409(a) process. modifications of an existing tower or Report and Order. 45. Our rule revisions reflect the base station ‘‘[n]otwithstanding’’ 42. Paperwork Reduction Act. This recent recognition of 30 feet as an Section 332. And the Commission has Report and Order does not contain appropriate standard in the federal relied on section 6409(a) to require a information collection(s) subject to the historic preservation context and the streamlined review process for Paperwork Reduction Act of 1995 changes in the collocation marketplace, modifications of existing towers or base (PRA), Public Law 104–13. In addition, which is lacking space for collocations. stations. Similar to the Commission’s therefore, it does not contain any new This standard is consistent with the actions in the 2014 Infrastructure Order, or modified information collection current collocation marketplace and the rules it promulgates in this burden for small business concerns with with the threshold adopted in the document ‘‘will serve the public interest fewer than 25 employees, pursuant to Wireless Facilities NPA and recently by providing guidance to all the Small Business Paperwork Relief included in the Amended Collocation stakeholders on their rights and Act of 2002, Public Law 107–198, see 44 NPA. Further, at least ‘‘eight states have responsibilities under the provision, U.S.C. 3506(c)(4). passed laws that expressly permit reducing delays in the review process 43. Congressional Review Act. The compound expansion within certain for wireless infrastructure Commission has determined, and the modifications, and facilitating the rapid limits . . . under an exempt or Administrator of the Office of expedited review process.’’ Most of deployment of wireless infrastructure, Information and Regulatory Affairs, thereby promoting advanced wireless these laws allow expansion beyond 30 Office of Management and Budget, feet from the approved site. broadband services.’’ concurs that this rule is non-major 39. Finally, Western Communities under the Congressional Review Act, 5 B. Summary of Significant Issues Raised Coalition argues that the comment cycle U.S.C. 804(2). The Commission will by Public Comments in Response to the is unusually short. The Administrative send a copy of this Report and Order to Initial Regulatory Flexibility Analysis Procedure Act and the Commission’s Congress and the Government (IRFA) rules require only that commenters be Accountability Office pursuant to 5 afforded reasonable notice of the 46. There were no comments filed U.S.C. 801(a)(1)(A). proposed rulemaking. Western that specifically addressed the proposed Communities Coalition provides no Final Regulatory Flexibility Analysis rules and policies presented in the basis for its view that more than the 30- IRFA. A. Need for, and Objectives of, the day time period following Federal Report and Order C. Response to Comments by the Chief Register publication (20 days for Counsel for Advocacy of the Small comments and 10 days for reply 44. In the Report and Order, the Business Administration comments), was inadequate here, given Commission continues its efforts to that the NPRM raised a narrow set of reduce regulatory barriers to 47. Pursuant to the Small Business issues that had been subject to prior infrastructure deployment by further Jobs Act of 2010, which amended the public input in response to WIA’s streamlining the state and local RFA, the Commission is required to petition for declaratory ruling and government review process for respond to any comments filed by the petition for rulemaking. And no modifications to existing wireless Chief Counsel for Advocacy of the Small commenter argues that it was prejudiced towers or base stations under section Business Administration (SBA), and to by the comment cycle’s length. Indeed, 6409(a) of the Spectrum Act of 2012. provide a detailed statement of any several commenters, including the The Commission’s decision will change made to the proposed rules as a Western Communities Coalition, have encourage the use of existing result of those comments. been considering these issues on the infrastructure, where efficient, to 48. The Chief Counsel did not file any record since at least October 2019. accelerate deployment of 5G and other comments in response to the proposed Claims that the NPRM is vague or that advanced networks, which will enable rules in this proceeding.

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D. Description and Estimate of the governments and special purpose station operation. This industry also Number of Small Entities to Which the governments in the United States. Of includes establishments primarily Rules Will Apply this number there were 36,931 general engaged in providing satellite terminal 49. The RFA directs agencies to purpose governments (county, stations and associated facilities provide a description of, and where municipal and town or township) with connected with one or more terrestrial feasible, an estimate of the number of populations of less than 50,000 and systems and capable of transmitting small entities that may be affected by 12,040 special purpose governments— telecommunications to, and receiving the rules and adopted herein. The RFA independent school districts with telecommunications from, satellite generally defines the term ‘‘small enrollment populations of less than systems. Establishments providing entity’’ as having the same meaning as 50,000. Accordingly, based on the 2017 internet services or voice over internet U.S. Census of Governments data, we the terms ‘‘small business,’’ ‘‘small protocol (VoIP) services via client- estimate that at least 48,971 entities fall organization,’’ and ‘‘small governmental supplied telecommunications into the category of ‘‘small jurisdiction.’’ In addition, the term connections are also included in this governmental jurisdictions.’’ industry. The SBA has developed a ‘‘small business’’ has the same meaning 53. Wireless Telecommunications small business size standard for ‘‘All as the term ‘‘small business concern’’ Carriers (except Satellite). This industry Other Telecommunications’’, which under the Small Business Act. A ‘‘small comprises establishments engaged in business concern’’ is one which: (1) Is operating and maintaining switching consists of all such firms with annual independently owned and operated; (2) and transmission facilities to provide receipts of $35 million or less. For this is not dominant in its field of operation; communications via the airwaves. category, U.S. Census Bureau data for and (3) satisfies any additional criteria Establishments in this industry have 2012 show that there were 1,442 firms established by the SBA. spectrum licenses and provide services that operated for the entire year. Of 50. Small Businesses, Small using that spectrum, such as cellular those firms, a total of 1,400 had annual Organizations, Small Governmental services, paging services, wireless receipts less than $25 million and 15 Jurisdictions. Our actions, over time, internet access, and wireless video firms had annual receipts of $25 million may affect small entities that are not services. The appropriate size standard to $49, 999,999. Thus, the Commission easily categorized at present. We under SBA rules is that such a business estimates that the majority of ‘‘All Other therefore describe here, at the outset, is small if it has 1,500 or fewer Telecommunications’’ firms potentially three broad groups of small entities that employees. For this industry, U.S. affected by our action can be considered could be directly affected herein. First, Census Bureau data for 2012 show that small. while there are industry specific size there were 967 firms that operated for 56. Fixed Microwave Services. standards for small businesses that are the entire year. Of this total, 955 firms Microwave services include common used in the regulatory flexibility employed fewer than 1,000 employees carrier, private-operational fixed, and analysis, according to data from the and 12 firms employed of 1000 broadcast auxiliary radio services. They Small Business Administration’s (SBA) employees or more. Thus under this Office of Advocacy, in general a small also include the Upper Microwave category and the associated size Flexible Use Service, Millimeter Wave business is an independent business standard, the Commission estimates that having fewer than 500 employees. These Service, Local Multipoint Distribution the majority of Wireless Service (LMDS), the Digital Electronic types of small businesses represent Telecommunications Carriers (except 99.9% of all businesses in the United Message Service (DEMS), and the 24 Satellite) are small entities. GHz Service, where licensees can States, which translates to 30.7 million 54. The Commission’s own data— choose between common carrier and businesses. available in its Universal Licensing non-common carrier status. There are 51. Next, the type of small entity System—indicate that, as of August 31, approximately 66,680 common carrier described as a ‘‘small organization’’ is 2018 there are 265 Cellular licensees fixed licensees, 69,360 private and generally ‘‘any not-for-profit enterprise that will be affected by our actions. The public safety operational-fixed which is independently owned and Commission does not know how many operated and is not dominant in its of these licensees are small, as the licensees, 20,150 broadcast auxiliary field.’’ The Internal Revenue Service Commission does not collect that radio licensees, 411 LMDS licenses, 33 (IRS) uses a revenue benchmark of information for these types of entities. 24 GHz DEMS licenses, 777 39 GHz $50,000 or less to delineate its annual Similarly, according to internally licenses, and five 24 GHz licenses, and electronic filing requirements for small developed Commission data, 413 467 Millimeter Wave licenses in the exempt organizations. Nationwide, for carriers reported that they were engaged microwave services. The Commission tax year 2018, there were approximately in the provision of wireless telephony, has not yet defined a small business 571,709 small exempt organizations in including cellular service, Personal with respect to microwave services. The the U.S. reporting revenues of $50,000 Communications Service (PCS), and closest applicable SBA category is or less according to the registration and Specialized Mobile Radio (SMR) Wireless Telecommunications Carriers tax data for exempt organizations Telephony services. Of this total, an (except Satellite) and the appropriate available from the IRS. estimated 261 have 1,500 or fewer size standard for this category under 52. Finally, the small entity described employees, and 152 have more than SBA rules is that such a business is as a ‘‘small governmental jurisdiction’’ 1,500 employees. Thus, using available small if it has 1,500 or fewer employees. is defined generally as ‘‘governments of data, we estimate that the majority of For this industry, U.S. Census Bureau cities, counties, towns, townships, wireless firms can be considered small. data for 2012 show that there were 967 villages, school districts, or special 55. All Other Telecommunications. firms that operated for the entire year. districts, with a population of less than The ‘‘All Other Telecommunications’’ Of this total, 955 firms had employment fifty thousand.’’ U.S. Census Bureau category is comprised of establishments of 999 or fewer employees and 12 had data from the 2017 Census of primarily engaged in providing employment of 1000 employees or Governments indicate that there were specialized telecommunications more. Thus under this SBA category and 90,075 local governmental jurisdictions services, such as satellite tracking, the associated size standard, the consisting of general purpose communications telemetry, and radar Commission estimates that a majority of

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fixed microwave service licensees can Of the 528 licenses auctioned, 289 2010, there were a total of 3,330 be considered small. licenses were sold to four small Economic Area market area MAS 57. The Commission does not have businesses. authorizations. The Commission’s data specifying the number of these 60. Multichannel Video Distribution licensing database also indicates that, as licensees that have more than 1,500 and Data Service (MVDDS). MVDDS is of April 16, 2010, of the 11,653 total employees, and thus is unable at this a terrestrial fixed microwave service MAS station authorizations, 10,773 time to estimate with greater precision operating in the 12.2–12.7 GHz band. authorizations were for private radio the number of fixed microwave service The Commission adopted criteria for service. In 2001, an auction for 5,104 licensees that would qualify as small defining three groups of small MAS licenses in 176 EAs was business concerns under the SBA’s businesses for purposes of determining conducted. Seven winning bidders small business size standard. their eligibility for special provisions claimed status as small or very small Consequently, the Commission such as bidding credits. It defined a very businesses and won 611 licenses. In estimates that there are up to 36,708 small business as an entity with average 2005, the Commission completed an common carrier fixed licensees and up annual gross revenues not exceeding $3 auction (Auction 59) of 4,226 MAS to 59,291 private operational-fixed million for the preceding three years; a licenses in the Fixed Microwave licensees and broadcast auxiliary radio small business as an entity with average Services from the 928/959 and 932/941 licensees in the microwave services that annual gross revenues not exceeding MHz bands. Twenty-six winning may be small and may be affected by the $15 million for the preceding three bidders won a total of 2,323 licenses. Of rules and policies discussed herein. We years; and an entrepreneur as an entity the 26 winning bidders in this auction, note, however, that the microwave fixed with average annual gross revenues not five claimed small business status and licensee category includes some large exceeding $40 million for the preceding won 1,891 licenses. entities. three years. These definitions were 63. With respect to the second 58. FM Translator Stations and Low approved by the SBA. On January 27, category, Internal Private Spectrum use Power FM Stations. FM translators and 2004, the Commission completed an consists of entities that use, or seek to Low Power FM Stations are classified in auction of 214 MVDDS licenses use, MAS spectrum to accommodate the category of Radio Stations and are (Auction No. 53). In this auction, ten their own internal communications assigned the same NAICs Code as winning bidders won a total of 192 needs, MAS serves an essential role in licensees of radio stations. This U.S. MVDDS licenses. Eight of the ten a range of industrial, safety, business, industry, Radio Stations, comprises winning bidders claimed small business and land transportation activities. MAS establishments primarily engaged in status and won 144 of the licenses. The radios are used by companies of all broadcasting aural programs by radio to Commission also held an auction of sizes, operating in virtually all U.S. the public. Programming may originate MVDDS licenses on December 7, 2005 business categories, and by all types of in their own studio, from an affiliated (Auction 63). Of the three winning public safety entities. For the majority of network, or from external sources. The bidders who won 22 licenses, two private internal users, the definition SBA has established a small business winning bidders, winning 21 of the developed by the SBA would be more size standard which consists of all radio licenses, claimed small business status. appropriate than the Commission’s stations whose annual receipts are $41.5 61. Multiple Address Systems. Entities definition. The closest applicable million dollars or less. U.S. Census using Multiple Address Systems (MAS) definition of a small entity is the Bureau data for 2012 indicate that 2,849 spectrum, in general, fall into two ‘‘Wireless Telecommunications Carriers radio station firms operated during that categories: (1) Those using the spectrum (except Satellite)’’ definition under the year. Of that number, 2,806 operated for profit-based uses, and (2) those using SBA size standards. The appropriate with annual receipts of less than $25 the spectrum for private internal uses. size standard under SBA rules is that million per year, 17 with annual With respect to the first category, Profit- such a business is small if it has 1,500 receipts between $25 million and based Spectrum use, the size standards or fewer employees. For this category, $49,999,999 million and 26 with annual established by the Commission define U.S. Census Bureau data for 2012 show receipts of $50 million or more. ‘‘small entity’’ for MAS licensees as an that there were 967 firms that operated Therefore, based on the SBA’s size entity that has average annual gross for the entire year. Of this total, 955 standard we conclude that the majority revenues of less than $15 million over firms had employment of 999 or fewer of FM Translator Stations and Low the three previous calendar years. A employees and 12 had employment of Power FM Stations are small. ‘‘Very small business’’ is defined as an 1000 employees or more. Thus under 59. Location and Monitoring Service entity that, together with its affiliates, this category and the associated small (LMS). LMS systems use non-voice radio has average annual gross revenues of not business size standard, the Commission techniques to determine the location more than $3 million over the preceding estimates that the majority of firms that and status of mobile radio units. For three calendar years. The SBA has may be affected by our action can be purposes of auctioning LMS licenses, approved these definitions. The considered small. the Commission has defined a ‘‘small majority of MAS operators are licensed 64. Non-Licensee Owners of Towers business’’ as an entity that, together in bands where the Commission has and Other Infrastructure. Although at with controlling interests and affiliates, implemented a geographic area one time most communications towers has average annual gross revenues for licensing approach that requires the use were owned by the licensee using the the preceding three years not to exceed of competitive bidding procedures to tower to provide communications $15 million. A ‘‘very small business’’ is resolve mutually exclusive applications. service, many towers are now owned by defined as an entity that, together with 62. The Commission’s licensing third-party businesses that do not controlling interests and affiliates, has database indicates that, as of April 16, provide communications services average annual gross revenues for the 2010, there were a total of 11,653 site- themselves but lease space on their preceding three years not to exceed $3 based MAS station authorizations. Of towers to other companies that provide million. These definitions have been these, 58 authorizations were associated communications services. The approved by the SBA. An auction for with common carrier service. In Commission’s rules require that any LMS licenses commenced on February addition, the Commission’s licensing entity, including a non-licensee, 23, 1999 and closed on March 5, 1999. database indicates that, as of April 16, proposing to construct a tower over 200

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feet in height or within the glide slope services include services operating in employment of 1000 employees or of an airport must register the tower spectrum licensed under Part 95 of our more. Thus under this category and the with the Commission’s Antenna rules. These services include Citizen associated size standard, the Structure Registration (‘‘ASR’’) system Band Radio Service, General Mobile Commission estimates that the majority and comply with applicable rules Radio Service, Radio Control Radio of PLMR Licensees are small entities. regarding review for impact on the Service, Family Radio Service, Wireless 69. According to the Commission’s environment and historic properties. Medical Telemetry Service, Medical records, a total of approximately 65. As of March 1, 2017, the ASR Implant Communications Service, Low 400,622 licenses comprise PLMR users. database includes approximately Power Radio Service, and Multi-Use There are a total of approximately 3,577 122,157 registration records reflecting a Radio Service. There are a variety of PLMR licenses in the 4.9 GHz band; ‘‘Constructed’’ status and 13,987 methods used to license the spectrum in 19,359 PLMR licenses in the 800 MHz registration records reflecting a these rule parts, from licensing by rule, band; and 3,374 licenses in the ‘‘Granted, Not Constructed’’ status. to conditioning operation on successful frequencies range 173.225 MHz to These figures include both towers completion of a required test, to site- 173.375 MHz. The Commission does not registered to licensees and towers based licensing, to geographic area require PLMR licensees to disclose registered to non-licensee tower owners. licensing. All such entities in this information about number of The Commission does not keep category are wireless, therefore we employees, and does not have information from which we can easily apply the definition of Wireless information that could be used to determine how many of these towers are Telecommunications Carriers (except determine how many PLMR licensees registered to non-licensees or how many Satellite), pursuant to which the SBA’s constitute small entities under this non-licensees have registered towers. small entity size standard is defined as definition. The Commission however Regarding towers that do not require those entities employing 1,500 or fewer believes that a substantial number of ASR registration, we do not collect persons. For this industry, U.S. Census PLMR licensees may be small entities information as to the number of such Bureau data for 2012 show that there despite the lack of specific information. towers in use and therefore cannot were 967 firms that operated for the 70. Public Safety Radio Licensees. As estimate the number of tower owners entire year. Of this total, 955 firms had a general matter, Public Safety Radio that would be subject to the rules on employment of 999 or fewer employees Pool licensees include police, fire, local which we seek comment. Moreover, the and 12 had employment of 1000 government, forestry conservation, SBA has not developed a size standard employees or more. Thus under this highway maintenance, and emergency for small businesses in the category category and the associated size medical services. Because of the vast ‘‘Tower Owners.’’ Therefore, we are standard, the Commission estimates that unable to determine the number of non- array of public safety licensees, the the majority of firms can be considered Commission has not developed a small licensee tower owners that are small small. We note however, that many of entities. We believe, however, that when business size standard specifically the licensees in this category are applicable to public safety licensees. all entities owning 10 or fewer towers individuals and not small entities. In and leasing space for collocation are The closest applicable SBA category is addition, due to the mostly unlicensed Wireless Telecommunications Carriers included, non-licensee tower owners and shared nature of the spectrum number in the thousands. In addition, (except Satellite) which encompasses utilized in many of these services, the business entities engaged in there may be other non-licensee owners Commission lacks direct information of other wireless infrastructure, radiotelephone communications. The upon which to base an estimation of the including Distributed Antenna Systems appropriate size standard for this number of small entities that may be (DAS) and small cells that might be category under SBA rules is that such a affected by our actions in this affected by the measures on which we business is small if it has 1,500 or fewer proceeding. seek comment. We do not have any employees. For this industry, U.S. basis for estimating the number of such 68. Private Land Mobile Radio Census data for 2012 show that there non-licensee owners that are small Licensees. Private land mobile radio were 967 firms that operated for the entities. (PLMR) systems serve an essential role entire year. Of this total, 955 firms had 66. The closest applicable SBA in a vast range of industrial, business, employment of 999 or fewer employees category is All Other land transportation, and public safety and 12 had employment of 1000 Telecommunications, and the activities. Companies of all sizes employees or more. Thus under this appropriate size standard consists of all operating in all U.S. business categories category and the associated size such firms with gross annual receipts of use these radios. Because of the vast standard, the Commission estimates that $38 million or less. For this category, array of PLMR users, the Commission the majority of firms can be considered U.S. Census Bureau data for 2012 show has not developed a small business size small. With respect to local that there were 1,442 firms that operated standard specifically applicable to governments, in particular, since many for the entire year. Of these firms, a total PLMR users. The closest applicable SBA governmental entities comprise the of 1,400 had gross annual receipts of category is Wireless licensees for these services, we include less than $25 million and 15 firms had Telecommunications Carriers (except under public safety services the number annual receipts of $25 million to $49, Satellite) which encompasses business of government entities affected. 999,999. Thus, under this SBA size entities engaged in radiotelephone According to Commission records, there standard a majority of the firms communications. The appropriate size are a total of approximately 133,870 potentially affected by our action can be standard for this category under SBA licenses within these services. There are considered small. rules is that such a business is small if 3,577 licenses in the 4.9 GHz band, 67. Personal Radio Services. Personal it has 1,500 or fewer employees. For this based on an FCC Universal Licensing radio services provide short-range, low- industry, U.S. Census Bureau data for System search of September 18, 2020. power radio for personal 2012 show that there were 967 firms We estimate that fewer than 2,442 communications, radio signaling, and that operated for the entire year. Of this public safety radio licensees hold these business communications not provided total, 955 firms had employment of 999 licenses because certain entities may for in other services. Personal radio or fewer employees and 12 had have multiple licenses.

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71. Radio Stations. This Economic that it is difficult at times to assess these Commission has estimated the number Census category ‘‘comprises criteria in the context of media entities of licensed noncommercial educational establishments primarily engaged in and the estimates of small businesses to television stations to be 384. broadcasting aural programs by radio to which they apply may be over-inclusive Notwithstanding, the Commission does the public. Programming may originate to this extent. not compile and otherwise does not in their own studio, from an affiliated 74. Satellite Telecommunications. have access to information on the network, or from external sources.’’ The This category comprises firms revenue of NCE stations that would SBA has established a small business ‘‘primarily engaged in providing permit it to determine how many such size standard for this category as firms telecommunications services to other stations would qualify as small entities. having $41.5 million or less in annual establishments in the There are also 2,300 low power receipts. U.S. Census Bureau data for telecommunications and broadcasting television stations, including Class A 2012 show that 2,849 radio station firms industries by forwarding and receiving stations (LPTV) and 3,681 TV translator operated during that year. Of that communications signals via a system of stations. Given the nature of these number, 2,806 firms operated with satellites or reselling satellite services, we will presume that all of annual receipts of less than $25 million telecommunications.’’ Satellite these entities qualify as small entities per year and 17 with annual receipts telecommunications service providers under the above SBA small business between $25 million and $49,999,999 include satellite and earth station size standard. million. Therefore, based on the SBA’s operators. The category has a small 77. We note, however, that in size standard the majority of such business size standard of $35 million or assessing whether a business concern entities are small entities. less in average annual receipts, under qualifies as ‘‘small’’ under the above 72. According to Commission staff SBA rules. For this category, U.S. definition, business (control) affiliations review of the BIA/Kelsey, LLC’s Media Census Bureau data for 2012 show that must be included. Our estimate, Access Pro Radio Database as of January there were a total of 333 firms that therefore, likely overstates the number 2018, about 11,261 (or about 99.9 operated for the entire year. Of this of small entities that might be affected percent) of 11,383 commercial radio total, 299 firms had annual receipts of by our action, because the revenue stations had revenues of $38.5 million less than $25 million. Consequently, we figure on which it is based does not or less and thus qualify as small entities estimate that the majority of satellite include or aggregate revenues from under the SBA definition. The telecommunications providers are small affiliated companies. In addition, Commission has estimated the number entities. another element of the definition of of licensed commercial AM radio 75. Television Broadcasting. This ‘‘small business’’ requires that an entity stations to be 4,580 stations and the Economic Census category ‘‘comprises not be dominant in its field of operation. number of commercial FM radio establishments primarily engaged in We are unable at this time to define or stations to be 6,726, for a total number broadcasting images together with quantify the criteria that would of 11,306. We note the Commission has sound.’’ These establishments operate establish whether a specific television also estimated the number of licensed television broadcast studios and broadcast station is dominant in its field noncommercial (NCE) FM radio stations facilities for the programming and of operation. Accordingly, the estimate to be 4,172. Nevertheless, the transmission of programs to the public. of small businesses to which rules may Commission does not compile and These establishments also produce or apply does not exclude any television otherwise does not have access to transmit visual programming to station from the definition of a small information on the revenue of NCE affiliated broadcast television stations, business on this basis and is therefore stations that would permit it to which in turn broadcast the programs to possibly over-inclusive. Also, as noted determine how many such stations the public on a predetermined schedule. above, an additional element of the would qualify as small entities. Programming may originate in their own definition of ‘‘small business’’ is that the 73. We also note, that in assessing studio, from an affiliated network, or entity must be independently owned whether a business entity qualifies as from external sources. The SBA has and operated. The Commission notes small under the above definition, created the following small business that it is difficult at times to assess these business control affiliations must be size standard for such businesses: Those criteria in the context of media entities included. The Commission’s estimate having $41.5 million or less in annual and its estimates of small businesses to therefore likely overstates the number of receipts. The 2012 Economic Census which they apply may be over-inclusive small entities that might be affected by reports that 751 firms in this category to this extent. its action, because the revenue figure on operated in that year. Of that number, 78. Broadband Radio Service and which it is based does not include or 656 had annual receipts of $25,000,000 Educational Broadband Service. aggregate revenues from affiliated or less, and 25 had annual receipts Broadband Radio Service systems, companies. In addition, to be between $25,000,000 and $49,999,999. previously referred to as Multipoint determined a ‘‘small business,’’ an Based on this data we therefore estimate Distribution Service (MDS) and entity may not be dominant in its field that the majority of commercial Multichannel Multipoint Distribution of operation. We further note, that it is television broadcasters are small entities Service (MMDS) systems, and ‘‘wireless difficult at times to assess these criteria under the applicable SBA size standard. cable,’’ transmit video programming to in the context of media entities, and the 76. The Commission has estimated subscribers and provide two-way high estimate of small businesses to which the number of licensed commercial speed data operations using the these rules may apply does not exclude television stations to be 1,377. Of this microwave frequencies of the any radio station from the definition of total, 1,258 stations (or about 91 Broadband Radio Service (BRS) and a small business on these basis, thus our percent) had revenues of $38.5 million Educational Broadband Service (EBS) estimate of small businesses may or less, according to Commission staff (previously referred to as the therefore be over-inclusive. Also, as review of the BIA/Kelsey Inc. Media Instructional Television Fixed Service noted above, an additional element of Access Pro Television Database (BIA) on (ITFS)). the definition of ‘‘small business’’ is that November 16, 2017, and therefore these 79. BRS—In connection with the 1996 the entity must be independently owned licensees qualify as small entities under BRS auction, the Commission and operated. The Commission notes the SBA definition. In addition, the established a small business size

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standard as an entity that had annual Transmission facilities may be based on of the eligible facilities request, and average gross revenues of no more than a single technology or a combination of recognizes that the site may have $40 million in the previous three technologies.’’ The SBA’s small changed since the locality initially calendar years. The BRS auctions business size standard for this category approved it. This action does not create resulted in 67 successful bidders is all such firms having 1,500 or fewer any new reporting, recordkeeping, or obtaining licensing opportunities for employees. U.S. Census Bureau data for other compliance requirements for small 493 Basic Trading Areas (BTAs). Of the 2012 show that there were 3,117 firms entities. Instead, it prevents entities 67 auction winners, 61 met the that operated that year. Of this total, from having to file, and localities from definition of a small business. BRS also 3,083 operated with fewer than 1,000 having to receive and review, repeated includes licensees of stations authorized employees. Thus, under this size applications for site excavation or prior to the auction. At this time, we standard, the majority of firms in this deployments. Further, our actions estimate that of the 61 small business industry can be considered small. In providing clarity on the definitions of BRS auction winners, 48 remain small addition to U.S. Census Bureau data, the site and substantial change pursuant to business licensees. In addition to the 48 Commission’s Universal Licensing the Commission’s rules implementing small businesses that hold BTA System indicates that as of October section 6409(a) requirements should authorizations, there are approximately 2014, there are 2,206 active EBS benefit all entities involved in the 86 incumbent BRS licensees that are licenses. The Commission estimates that wireless facility modification process. considered small entities (18 incumbent of these 2,206 licenses, the majority are BRS licensees do not meet the small held by non-profit educational F. Steps Taken To Minimize the business size standard). After adding the institutions and school districts, which Significant Economic Impact on Small number of small business auction are by statute defined as small Entities, and Significant Alternatives licensees to the number of incumbent businesses. Considered licensees not already counted, there are E. Description of Projected Reporting, 84. The RFA requires an agency to currently approximately 133 BRS Recordkeeping, and Other Compliance describe any significant, specifically licensees that are defined as small Requirements for Small Entities small business, alternatives that it has businesses under either the SBA or the considered in reaching its approach, 82. The excavation or deployment Commission’s rules. which may include the following four boundaries of an eligible facilities 80. In 2009, the Commission alternatives (among others): (1) The request pose significant policy conducted Auction 86, the sale of 78 establishment of differing compliance or implications associated with the licenses in the BRS areas. The reporting requirements or timetables Commission’s rules implementing Commission offered three levels of that take into account the resources section 6409(a) of the Spectrum Act of bidding credits: (i) A bidder with available to small entities; (2) the 2012. The Commission believes that the attributed average annual gross revenues clarification, consolidation, or rule changes in the Report and Order that exceed $15 million and do not simplification of compliance or exceed $40 million for the preceding provide certainty for providers, state reporting requirements under the rule three years (small business) received a and local governments (collectively, for such small entities; (3) the use of 15 percent discount on its winning bid; localities), and other entities performance, rather than design, (ii) a bidder with attributed average interpreting these rules. We do not standards; and (4) an exemption from annual gross revenues that exceed $3 believe that our resolution of these coverage of the rule, or any part thereof, million and do not exceed $15 million matters will create any new reporting, for such small entities. for the preceding three years (very small recordkeeping, or other compliance business) received a 25 percent discount requirements for small entities that will 85. In the Report and Order, the on its winning bid; and (iii) a bidder be impacted by our decision. Commission clarifies and amends its with attributed average annual gross 83. More specifically, the amendment rules associated with wireless revenues that do not exceed $3 million of § 1.6100(b)(7)(iv) to allow a infrastructure deployment to provide for the preceding three years modification of an existing site that more certainty to relevant parties and (entrepreneur) received a 35 percent entails ground excavation or enable small entities and others to more discount on its winning bid. Auction 86 deployment of up to 30 feet in any effectively navigate state and local concluded in 2009 with the sale of 61 direction outside a tower’s site does not application processes for eligible licenses. Of the ten winning bidders, create any new reporting, facilities requests. These changes, which two bidders that claimed small business recordkeeping, or other compliance broaden the scope wireless facility status won 4 licenses; one bidder that requirements for small entities. Rather, modifications that are eligible for claimed very small business status won it permits an entity submitting an streamlined review by localities under three licenses; and two bidders that eligible facilities request to undertake the Commission’s rules implementing claimed entrepreneur status won six limited excavation and deployment of section 6409(a), should reduce the licenses. up to 30 feet in any direction. While the economic impact on small entities that 81. EBS—Educational Broadband Commission cannot quantify the cost of deploy wireless infrastructure by Service has been included within the compliance with the changes adopted in reducing the costs and delay associated broad economic census category and the Report and Order, small entities with the deployment of such SBA size standard for Wired should not have to hire attorneys, infrastructure. The Commission’s efforts Telecommunications Carriers since engineers, consultants, or other to reduce regulatory barriers to 2007. Wired Telecommunications professionals to in order to comply. infrastructure deployment by further Carriers are comprised of establishments Similarly, the revised definition of streamlining the review process by primarily engaged in operating and/or ‘‘site’’ adopted in the Report and Order localities for modifications to existing providing access to transmission addresses localities’ concerns of wireless towers or base stations under facilities and infrastructure that they ‘‘unending accretion of [a] site by section 6409(a) should also reduce the own and/or lease for the transmission of repeated applications for expansion’’ by economic impact on small localities by voice, data, text, sound, and video using ensuring that a locality has reviewed reducing the administrative costs wired telecommunications networks. and approved the site that is the subject associated with the review process.

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86. The Commission considered but determination that the ‘‘20%’’ standard Commission amends 47 CFR part 1 as declined to adopt the industry’s would accomplish this goal. Moreover, follows: ‘‘hybrid’’ definition of ‘‘site.’’ Adopting adopting the ‘‘20%’’ proposal would that proposal would risk permitting a provide limited additional benefit in PART 1—PRACTICE AND tower owner to file an eligible facilities addressing the concern raised by PROCEDURE NATOA and Local Governments. request even if it may have substantially ■ increased the size of a tower site prior Because a small tower site typically is 1. The authority citation for part 1 to the adoption of this Report and Order associated with a small tower that has continues to read as follows: and without any necessary approval limited space for additional antennas, it Authority: 47 U.S.C. chs. 2, 5, 9, 13; 28 from a locality. It agreed with localities’ is unlikely that operators would need to U.S.C. 2461, unless otherwise noted. concerns on the industry’s proposed place a significant amount of additional ■ 2. Amend § 1.6100 by revising definition, and found that our revision equipment in an area outside the site paragraphs (b)(6) and (b)(7)(iv) to read addresses them by ensuring that a boundaries. In addition, any as follows: locality has reviewed and approved the modification to an existing tower that § 1.6100 Wireless Facility Modifications. eligible support structure that is the involves excavation or deployment subject of the eligible facilities request within the 30-foot expanded area will be * * * * * outside of the section 6409(a) process, subject to the other criteria in the (b) * * * while recognizing that the boundaries Commission’s rules for determining (6) Site. For towers other than towers may have changed since the locality whether there is a substantial change in the public rights-of-way, the current initially approved the eligible support that does not warrant streamlined boundaries of the leased or owned structure. It also considered and rejected treatment under section 6409(a). Those property surrounding the tower and any a proposal that would risk creating a criteria, which the Commission does not access or utility easements currently loophole whereby a tower owner could alter in this document, provide further related to the site, and, for other eligible use the issuance of a permit—which limitation on the size or scope of a support structures, further restricted to does not necessarily involve a locality’s modification that involves excavation or that area in proximity to the structure review of the eligible support structure, deployment within 30 feet of the site and to other transmission equipment and thus would not necessarily provide boundaries. already deployed on the ground. The an opportunity for the locality to take current boundaries of a site are the Ordering Clauses into account an increase in the size of boundaries that existed as of the date the site associated with that structure— 88. Accordingly, it is ordered, that the original support structure or a to justify expansion of the site without pursuant to sections 1, 4(i)–(j), 7, 201, modification to that structure was last proper local approval. On balance, the 253, 301, 303, 309, 319, and 332 of the reviewed and approved by a State or Commission believes the revisions Communications Act of 1934, as local government, if the approval of the adopted in the Report and Order best amended, and section 6409 of the modification occurred prior to the achieve the Commission’s goals while at Middle Class Tax Relief and Job Spectrum Act or otherwise outside of the same time minimize or further Creation Act of 2012, as amended, 47 the section 6409(a) process. reduce the economic impact on small U.S.C. 151, 154(i)–(j), 157, 201, 253, (7) * * * entities, including small state and local 301, 303, 309, 319, 332, 1455, that this (iv) It entails any excavation or government jurisdictions. Report and Order is hereby adopted. deployment outside of the current site, except that, for towers other than towers 87. The Commission also considered, 89. It is further ordered that this in the public rights-of-way, it entails but declined to adopt, NATOA and Report and Order shall be effective 30 any excavation or deployment of Local Governments proposal that, to the days after publication in the Federal transmission equipment outside of the extent the Commission revises it Register. current site by more than 30 feet in any ‘‘substantial change’’ definition, the 90. It is further ordered that the direction. The site boundary from which compound expansion standard should Commission’s Consumer & the 30 feet is measured excludes any be ‘‘the lesser of the following Governmental Affairs Bureau, Reference access or utility easements currently distance[s] from the current site (not Information Center, shall send a copy of related to the site; including easements related to the site): this Report and Order, including the a. 20% of the length or width of the Final Regulatory Flexibility Analysis, to * * * * * current site measured as a longitudinal the Chief Counsel for Advocacy of the [FR Doc. 2020–25144 Filed 12–2–20; 8:45 am] or latitudinal line from the current site Small Business Administration. BILLING CODE 6712–01–P to the excavation or deployment; or b. 91. It is further ordered that this 30 feet.’’ The Commission declined to Report and Order shall be sent to Congress and the Government FEDERAL COMMUNICATIONS adopt this proposal because it COMMISSION concluded that, on balance, the Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. potential problems it could create 47 CFR Part 9 outweigh the potential benefits it could 801(a)(1)(A). [PS Docket No. 18–261 and 17–239, GN achieve. The Commission reasoned that List of Subjects in 47 CFR Part 1 the standard of ‘‘20% of the length or Docket No. 11–117; FCC 19–76; FRS 17201] width of the current site’’ would be Communications equipment, Telecommunications. Implementing Kari’s Law and RAY difficult to administer, given that a site BAUM’S Act; Inquiry Concerning 911 Federal Communications Commission. boundary is not necessarily a Access, Routing, and Location in symmetrical shape. In addition, while Marlene Dortch, Enterprise Communications Systems; the record supports the determination Secretary. Amending the Definition of that a 30-foot expansion would be Interconnected VoIP Service sufficient to accommodate minor Final Rules equipment additions, the record does For the reasons discussed in the AGENCY: Federal Communications not provide support for the preamble, the Federal Communications Commission.

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ACTION: Final rule; announcement of include the relevant OMB Control Obligation to Respond: Required to compliance date. Number in your correspondence. The obtain or retain benefits. Statutory Commission will also accept your authority for these collections is SUMMARY: In this document, the comments via the internet if you send contained in 47 U.S.C. 151, 152, 154(i), Commission announces that the Office them to [email protected]. 154(j), 154(o), 251(e), 303(b), 303(g), of Management and Budget (OMB) has To request materials in accessible 303(r), 316, and 403. approved information collections formats for people with disabilities Total Annual Burden: 76,766 hours. associated with certain rules adopted in (Braille, large print, electronic files, Total Annual Cost: No Cost. Implementing Kari’s Law and RAY audio format), send an email to fcc504@ Nature and Extent of Confidentiality: BAUM’S Act; Inquiry Concerning 911 fcc.gov or call the Consumer and There is no need for confidentiality with Access, Routing, and Location in Governmental Affairs Bureau at (202) this collection of information. Enterprise Communications Systems; 418–0530 (voice). Privacy Act Impact Assessment: No Amending the Definition of impact(s). Interconnected VoIP Service. The Synopsis Needs and Uses: This notice pertains Commission also announces that As required by the Paperwork to multiple information collections compliance with the rules is now Reduction Act of 1995 (44 U.S.C. 3507), relating to the Commission’s text-to-911 required. The Commission also removes the FCC is notifying the public that it regulations. As described below, OMB and amends paragraphs advising that received OMB approval on (1) previously approved the information compliance was not required until OMB September 17, 2020, for the text-to-911 collections associated with deployment approval was obtained. This document information collection requirements of text-to-911. This notice announces is consistent with the 2019 Report and contained in the Commission’s rules at that OMB has approved modifications of Order and rules, which state the 47 CFR 9.10(q)(10)(v); (2) November 4, the text-to-911 information collections Commission will publish a document in 2020, for the interconnected VoIP pursuant to the Kari’s Law and RAY the Federal Register announcing a information collection requirements BAUM’S Act Report and Order. In compliance date for the rule sections contained in the Commission’s rules at addition, OMB has approved and revise the rules accordingly. 47 CFR 9.11(b)(2)(ii) and (iv), (b)(4), and modification of the PSAP Text-to-911 DATES: Effective date: This rule is (b)(5)(ii) and (iii); and (3) on November Registration Form so that PSAPs can use effective December 3, 2020. 10, 2020, for the fixed telephony and the form to request RTT service Compliance dates: Compliance with multi-line telephone system collection pursuant to the RTT Report and Order. Deployment of Text-to-911. In 2014, 47 CFR 9.8(a) and 47 CFR 9.16(b)(3)(i) requirements contained in the the Commission adopted Facilitating the published at 84 FR 66716 on December Commission’s rules at 47 CFR 9.8(a); Deployment of Text-to-911 and Other 5, 2019, is required as of January 6, and 9.16(b)(3)(i), (ii), and (iii). Next-Generation 911 Applications, 2021. Compliance with 47 CFR Under 5 CFR part 1320, an agency Framework for Next Generation 911 9.10(q)(10)(v), 47 CFR 9.16(b)(3)(ii) and may not conduct or sponsor a collection Deployment, Second Report and Order (iii), published at 84 FR 66716 on of information unless it displays a and Third Further Notice of Proposed December 5, 2019, is required as of current, valid OMB Control Number. Rulemaking, FCC 14–118, released on January 6, 2022. Compliance with 47 No person shall be subject to any August 13, 2014, in PS Docket Nos. 11– CFR 9.11(b)(2)(ii) and (iv), (b)(4), and penalty for failing to comply with a 153 and 10–255 (Text-to-911 Report and (b)(5)(ii) and (iii), published at 84 FR collection of information subject to the Order). The Text-to-911 Report and 66716 on December 5, 2019, is required Paperwork Reduction Act that does not Order was published at 79 FR 55367 as of January 6, 2021 for fixed services display a current, valid OMB Control (September 16, 2014). In that Order, the and January 6, 2022 for non-fixed Number. Commission adopted final rules— services. The foregoing notice is required by the Paperwork Reduction Act of 1995, containing information collection FOR FURTHER INFORMATION CONTACT: John requirements—to enable the A. Evanoff, Deputy Chief, Policy and Pub. L. 104–13, October 1, 1995, and 44 U.S.C. 3507. Commission to implement text-to-911 Licensing Division, Public Safety and service. The text-to-911 rules provide Homeland Security Bureau, at (202) The total annual reporting burdens and costs for the respondents are as enhanced access to emergency services 418–0848, or email: john.evanoff@ for people with disabilities and fulfill a fcc.gov. follows: OMB Control Number: 3060–1204. crucial role as an alternative means of SUPPLEMENTARY INFORMATION: OMB Approval Date: September 17, emergency communication for the This document announces that OMB 2020. general public in situations where approved the three information OMB Expiration Date: September 30, sending a text message to 911 as collection requirements in §§ 9.8(a); 2023. opposed to placing a voice call could be 9.10(q)(10)(v); 9.11(b)(2)(ii); Title: Deployment of Text-to-911. vital to the caller’s safety. The Text-to- 9.11(b)(2)(iv); 9.11(b)(4); 9.11(b)(5)(ii); Form Number: N/A. 911 Report and Order adopted rules to (iii); and 9.16(b)(3)(i), (ii), and (iii). Type of Review: Revision of a commence the implementation of text- The Commission publishes this currently approved collection. to-911 service with an initial deadline of document as an announcement of the Respondents: Business or other for- December 31, 2014 for all covered text compliance date of the rules. If you have profit entities; State, Local or Tribal providers to be capable of supporting any comments on the burden estimates Government. text-to-911 service. The Text-to-911 listed below, or how the Commission Number of Respondents and Report and Order also provided that can improve the collections and reduce Responses: 3,882 respondents; 52,963 covered text providers would then have any burdens caused thereby, please responses. a six-month implementation period. contact Nicole Ongele, Federal Estimated Time per Response: 1–8 They must begin routing all 911 text Communications Commission, 45 L hours. messages to a PSAP by June 30, 2015 or Street, NE, Washington, DC 20554, Frequency of Response: One-time; within six months of a valid PSAP regarding OMB Control Numbers 3060– annual reporting requirements, and request for text-to-911 service, 1204, 3060–1085, or 3060–1280). Please third-party disclosure requirements. whichever is later.

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To implement these requirements, the RTT communications in an RTT format 319, 332, 403, 405, 605, 610, 615, 615 Commission seeks to collect information within six months after a valid request note, 615a, 615b, 615c, 615a-1, 616, 620, primarily for a database in which PSAPs is made, to the extent the provider has 621, 623, 623 note, 721, and 1471. voluntarily register that they are selected RTT as its accessible text Total Annual Burden: 1,481,249 technically ready to receive text communication method. hours. messages to 911. As PSAPs become text- Dispatchable Location. Section 506 of Total Annual Cost: $238,890,000. ready, they may either register in the RAY BAUM’S Act requires the Nature and Extent of Confidentiality: PSAP database or provide other written Commission to ‘‘consider adopting rules There is no need for confidentiality with notification reasonably acceptable to a to ensure that the dispatchable location this collection of information. covered text messaging provider. Either is conveyed with a 9–1–1 call, Privacy Impact Assessment: No measure taken by the PSAP constitutes regardless of the technological platform impact(s). Needs and Uses: This notice pertains sufficient notification pursuant to the used.’’ Section 506, Pub. L. 115–127, to multiple information collections rules in the Text-to-911 Report and 132 Stat. 326. In the Kari’s Law and relating to the Commission’s 911 Order. PSAPs and covered text RAY BAUM’S Act Report and Order, the regulations for interconnected VoIP. providers may also agree to an Commission implemented Section 506 First, the FCC requested OMB approval alternative implementation timeframe of RAY BAUM’S Act by adopting to modify the current information (other than six months). Covered text dispatchable location rules for mobile collection in OMB Control No. 3060– providers must notify the FCC of the text and other 911-capable services. For 1085 to implement congressional mobile text services, the Commission dates and terms of any such alternate mandates arising from Section 506 of adopted 47 CFR 9.10(q)(10)(v), which timeframe within 30 days of the parties’ RAY BAUM’S Act, which requires the provides that no later than January 6, agreement. Additionally, the rules Commission to ‘‘consider adopting rules 2022, covered text providers must adopted by the Text-to-911 Report and to ensure that the dispatchable location provide the following location Order include other information is conveyed with a 9–1–1 call, information with all 911 text messages collections for third party notifications regardless of the technological platform routed to a PSAP: necessary for the implementation of used and including with calls from text-to-911, including notifications to Automated dispatchable location, if technically feasible; otherwise either multi-line telephone system.’’ consumers, covered text providers, and Second, the Commission obtained end-user manual provision of location the Commission. These notifications are OMB approval to merge the existing information, or enhanced location essential to ensure that all affected information collection in OMB Control information, which may be coordinate- parties are aware of the limitations, No. 3060–1131, Implementation of the based, consisting of the best available capabilities, and status of text-to-911 NET 911 Improvement Act of 2008: location that can be obtained from any services. These information collections Location Information from Owners and available technology or combination of enable the Commission to meet the Controllers of 911 and E911 technologies at reasonable cost. objectives for implementation of text-to- Capabilities. The Commission 911 service and for compliance by OMB Control Number: 3060–1085. OMB Approval Date: November 4, previously stated that it planned to covered text providers with the six- merge the information collection month implementation period in 2020. OMB Expiration Date: November 30, requirements contained in that furtherance of the Commission’s core information collection into OMB mission to ensure the public’s safety. 2023. Title: Section 9.11, Interconnected Control Number 3060–1085, Section 9.5, Real-Time Text. In the RTT Report Voice Over internet Protocol (VoIP) Interconnected Voice Over internet and Order, the Commission amended its E911 Compliance; Section 9.12, Protocol (VoIP) E911 Compliance, into a rules to facilitate a transition from text Implementation of the NET 911 single collection. Therefore, upon OMB telephone (TTY) technology to RTT as a Improvement Act of 2008: Location approval, the Commission will reliable and interoperable universal text Information from Owners and discontinue the information collection solution over wireless internet Protocol Controllers of 911 and E911 under OMB Control No. 3060–1131. (IP) enabled networks for people who Capabilities. Interconnected Voice Over internet are deaf, hard of hearing, deaf-blind, or Form Number: N/A. Protocol (VoIP) E911 Compliance. The have a speech disability. Section 9.10(c) Type of Review: Revision of a Commission is obligated by statute to of the rules requires Commercial Mobile currently approved collection. promote ‘‘safety of life and property’’ Radio Service (CMRS) providers to be Respondents: Individuals or and to ‘‘encourage and facilitate the ‘‘capable of transmitting 911 calls from Households; Business or other for-profit prompt deployment throughout the individuals with speech or hearing entities; Not-for-profit institutions; United States of a seamless, ubiquitous, disabilities through means other than State, Local or Tribal government. and reliable end-to-end infrastructure’’ mobile radio handsets, e.g., through the Number of Respondents and for public safety. Congress has use of [TTY devices].’’ Section 9.10(c) Responses: 72 respondents; 16,200,496 established 911 as the national also states that ‘‘CMRS providers that responses. emergency number to enable all citizens provide voice communications over IP Estimated Time per Response: 0.09 to reach emergency services directly and facilities are not required to support 911 hours (five minutes). efficiently, irrespective of whether a access via TTYs if they provide 911 Frequency of Response: One-time, on citizen uses wireline or wireless access via [RTT] communications, in occasion, third party disclosure technology when calling for help by accordance with 47 CFR part 67, except requirement, and recordkeeping dialing 911. Efforts by federal, state, and that RTT support is not required to the requirement. local governments, along with the extent that it is not achievable for a Obligation to Respond: Statutory significant efforts of wireline and particular manufacturer to support RTT authority for this information collection wireless service providers, have resulted on the provider’s network.’’ The RTT is contained in 47 U.S.C. 151, 151–154, in the nearly ubiquitous deployment of Report and Order provides that once a 152(a), 155(c), 157, 160, 201, 202, 208, this life-saving service. PSAP is so capable, the requested 210, 214, 218, 219, 222, 225, 251(e), 255, In 2005, the Commission adopted IP- service provider must begin delivering 301, 302, 303, 307, 308, 309, 310, 316, Enabled Services, E911 Requirements

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for IP-Enabled Service Providers, First technological platform used.’’ Section In 2008, the Commission adopted Report and Order and Notice of 506, Pub. L. 115–127, 132 Stat. 326. In Implementation of the NET 911 Proposed Rulemaking, FCC 05–116, the Kari’s Law and RAY BAUM’S Act Improvement Act of 2008, Report and released on June 3, 2015, in WC Docket Report and Order, the Commission Order, FCC 08–249, released on October Nos. 04–36 and 05–196 (2005 Report implemented Section 506 of RAY 21, 2008, in WC Docket No. 08–171 and Order), which set forth rules BAUM’S Act by adopting dispatchable (2008 Report and Order), which requiring providers of VoIP services that location rules for interconnected VoIP implements certain key provisions of interconnect with the nation’s existing and other 911-capable services. For the NET 911 Act. The information public switched telephone network interconnected VoIP services, the collection requirements adopted in the (interconnected VoIP services) to supply Commission amended the 911 2008 Report and Order arise out of the E911 capabilities to their customers. Registered Location and customer requirement for an owner or controller To ensure E911 functionality for notification requirements applicable to of a capability that can be used for 911 customers of VoIP service providers, the interconnected VoIP service providers. or E911 service to make that capability Commission requires the following Specifically, the Commission in the available to a requesting interconnected information collections: Kari’s Law and RAY BAUM’S Act VoIP provider under certain A. Location Registration. Requires Report and Order revised the Registered circumstances. In particular, an owner providers to interconnected VoIP Location requirements at 47 CFR 9.11 to or controller of such capability must services to obtain location information facilitate the provision of automated make it available to a requesting from their customers for use in the dispatchable location for fixed and non- interconnected VoIP provider if that routing of 911 calls and the provision of fixed interconnected VoIP services. For owner or controller either offers that location information to emergency fixed services, the rule requires capability to any commercial mobile answering points. provision of automated dispatchable radio service (CMRS) provider or if that B. Provision of Automatic Location location with each 911 call. For non- capability is necessary to enable the Information (ALI). Interconnected VoIP fixed services, the rule requires interconnected VoIP provider to provide service providers will place the location provision of automated dispatchable 911 or E911 service in compliance with information for their customers into, or location with 911 calls if technically the Commission’s rules. These make that information available feasible. If providing automated information collection requirements through, specialized databases dispatchable location is not technically help to ensure continued cooperation maintained by local exchange carriers feasible, non-fixed interconnected VoIP between interconnected VoIP service (and, in at least one case, a state service providers may provide providers and Public Safety Answering government) across the country. Points (PSAPs) in complying with the C. Customer Notification. Requires Registered Location or alternative Commission’s E911 requirements. that all providers of interconnected location information for 911 calls as VoIP are aware of their interconnected defined in the rules, or they may route OMB Control Number: 3060–1280. VoIP service’s actual E911 capabilities the caller to a national emergency call OMB Approval Date: November 10, and that they specifically advise every center. For fixed services, compliance 2020. subscriber, both new and existing, with these location requirements is OMB Expiration Date: November 30, prominently and in plain language of required by January 6, 2021; for non- 2023. the circumstances under which E911 fixed services, compliance is required Title: E911 Compliance for Fixed service may not be available through the by January 6, 2022. Regarding customer Telephony and Multi-line Telephone interconnected VoIP service or may be notification requirements, the Systems. in some way limited by comparison to Commission afforded service providers Form Number: N/A. traditional E911 service. flexibility to use any conspicuous Type of Review: New information D. Record of Customer Notification. means to notify end users of limitations collection. Requires VoIP providers to obtain and in 911 service. Respondents: Business or other for- keep a record of affirmative The requirements adopted in the profit entities. acknowledgement by every subscriber, Kari’s Law and RAY BAUM’S Act Number of Respondents and both new and existing, of having Report and Order leverage technology Responses: 1,275,636 respondents; received and understood this advisory. advancements since the 2005 Report 38,048,948 responses. E. User Notification. In addition, in and Order, build upon the existing Estimated Time per Response: 0.016 order to ensure to the extent possible Registered Location requirements, and hours (one minute). that the advisory is available to all expand options for collecting and Frequency of Response: One-time, on potential users of an interconnected supplying end-user location information occasion, third party disclosure VoIP service, interconnected VoIP with 911 calls. Accordingly, they serve requirement, and recordkeeping service providers must distribute to all a vital public safety interest. requirement. subscribers, both new and existing, NET 911 Act. The New and Emerging Obligation to Respond: Mandatory. warning stickers or other appropriate Technologies 911 Improvement Act of Statutory authority for this information labels warning subscribers if E911 2008 (Pub. L. 110–283, 122 Stat. 2620) collection is contained in 47 U.S.C. service may be limited or not available (NET 911 Act) explicitly imposes on 151–154, 152(a), 155(c), 157, 160, 201, and instructing the subscriber to place each interconnected VoIP provider the 202, 208, 210, 214, 218, 219, 222, 225, them on or near the customer premises obligation to provide 911 and E911 251(e), 255, 301, 302, 303, 307, 308, 309, equipment used in conjunction with the service in accordance with the 310, 316, 319, 332, 403, 405, 605, 610, interconnected VoIP service. Commission’s existing requirements. In 615, 615 note, 615a, 615b, 615c, 615a- Section 506 of RAY BAUM’S Act. addition, the NET 911 Act directs the 1, 616, 620, 621, 623, 623 note, 721, and Section 506 of RAY BAUM’S Act Commission to issue regulations by no 1471. requires the Commission to ‘‘consider later than October 21, 2008 that ensure Total Annual Burden: 634,610 hours. adopting rules to ensure that the that interconnected VoIP providers have Total Annual Cost: $1,911,540. dispatchable location is conveyed with access to any and all capabilities they Privacy Act Impact Assessment: No a 9–1–1 call, regardless of the need to satisfy that requirement. impact(s).

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Nature and Extent of Confidentiality: manager must provide dispatchable § 9.11 [Amended] There is no need for confidentiality with location, if technically feasible. ■ 4. Amend § 9.11 by removing this collection of information. Otherwise it must provide either (1) paragraph (c). Needs and Uses: The Commission is manually-updated dispatchable obligated by statute to promote ‘‘safety location, or (2) enhanced location § 9.16 [Amended] of life and property’’ and to ‘‘encourage information, which may be coordinate- ■ 5. Amend § 9.16 by removing and facilitate the prompt deployment based, consisting of the best available paragraph (c). throughout the United States of a location that can be obtained from any seamless, ubiquitous, and reliable end- available technology or combination of [FR Doc. 2020–25879 Filed 12–1–20; 11:15 am] to-end infrastructure’’ for public safety. technologies at reasonable cost. The BILLING CODE 6712–01–P Congress has established 911 as the requirements adopted in the 2019 Order national emergency number to enable account for variance in the feasibility of all citizens to reach emergency services FEDERAL COMMUNICATIONS providing dispatchable location for non- COMMISSION directly and efficiently, irrespective of fixed MLTS 911 calls, and the means whether a citizen uses wireline or available to provide it. The information 47 CFR Part 73 wireless technology when calling for collection requirements associated with help by dialing 911. Efforts by federal, these rules will ensure that Fixed state and local government, along with [MB Docket Nos. 19–311, 13–249; FCC 20– Telephony and MLTS providers have 154, FR ID 17233] the significant efforts of wireline and the means to provide 911 callers’ wireless service providers, have resulted locations to PSAPs, thus reducing All-Digital AM Broadcasting, in the nearly ubiquitous deployment of response times for emergency services. Revitalization of the AM Radio Service this life-saving service. Section 506 of RAY BAUM’S Act List of Subjects in 47 CFR Part 9 AGENCY: Federal Communications requires the Commission to ‘‘consider Communications common carriers, Commission. adopting rules to ensure that the Communications equipment, Radio. ACTION: Final rule. dispatchable location is conveyed with a 9–1–1 call, regardless of the Federal Communications Commission. SUMMARY: The Federal Communications technological platform used and Marlene Dortch, Commission provides an option for AM including with calls from multi-line Secretary. stations to broadcast using an all-digital telephone system.’’ RAY BAUM’S Act For the reasons discussed in the signal. also states that, ‘‘[i]n conducting the preamble, the Federal Communications DATES: Effective January 4, 2021, except proceeding . . . the Commission may Commission amends 47 CFR part 9 as for new rule § 73.406. The Commission consider information and conclusions follows: will publish a document in the Federal from other Commission proceedings Register announcing the effective date regarding the accuracy of the PART 9—911 REQUIREMENTS of the rule. dispatchable location for a 9–1–1 call FOR FURTHER INFORMATION CONTACT: . . . .’’ RAY BAUM’S Act defines a ‘‘9– ■ 1. The authority citation for part 9 James Bradshaw, Deputy Division Chief, 1–1 call’’ as a voice call that is placed, continues to read as follows: Media Bureau, Audio Division (202) or a message that is sent by other means Authority: 47 U.S.C. 151–154, 152(a), 418–2739; Christine Goepp, Attorney of communication, to a Public Safety 155(c), 157, 160, 201, 202, 208, 210, 214, 218, Advisor, Media Bureau, Audio Division, Answering Point (PSAP) for the purpose 219, 222, 225, 251(e), 255, 301, 302, 303, 307, (202) 418–7834. For additional of requesting emergency services. 308, 309, 310, 316, 319, 332, 403, 405, 605, As part of implementing Section 506 610, 615, 615 note, 615a, 615b, 615c, 615a– information concerning the Paperwork of RAY BAUM’S Act, on August 1, 1, 616, 620, 621, 623, 623 note, 721, and Reduction Act (PRA) information 2019, the Commission adopted a Report 1471, unless otherwise noted. collection requirements contained in this document, contact Cathy Williams and Order (2019 Order), set forth rules § 9.8 [Amended] requiring Fixed Telephony providers at 202–418–2918, or via the internet at and MLTS providers to ensure that ■ 2. Amend § 9.8 by removing and [email protected]. dispatchable location is conveyed with reserving paragraph (b). SUPPLEMENTARY INFORMATION: This is a 911 calls. ■ 3. Amend § 9.10 by revising paragraph summary of the Commission’s Report The Commission’s 2019 Order (s) to read as follows: and Order (R&O), MB Docket Nos. 19– adopted 9.8(a) and 9.16(b)(3)(i), (ii), and 311, 13–249; FCC 20–154, adopted on (iii) to facilitate the provision of § 9.10 911 Service. October 27, 2020, and released on automated dispatchable location. For * * * * * October 28, 2020. The full text of the Fixed Telephony and in fixed Multi-line (s) Compliance date(s). Paragraphs R&O will be available electronically via Telephone Systems (MLTS) (i)(2)(ii)(C) and (D), (i)(2)(ii)(J)(4), the FCC’s Electronic Document environments, providers must provide (i)(4)(iv) and (v), (j)(4), and (k) of this Management System (EDOCS) website automated dispatchable location with section contain information-collection at http://fjallfoss.fcc.gov/edocs_public/ 911 calls. For on-premises, non-fixed and recordkeeping requirements. or via the FCC’s Electronic Comment devices associated with an MLTS, the Compliance with paragraphs (i)(2)(ii)(C) Filing System (ECFS) website at http:// MLTS operator or manager must and (D), (i)(2)(ii)(J)(4), (i)(4)(iv) and (v), www.fcc.gov/ecfs. Alternative formats provide automated dispatchable (j)(4), and (k) will not be required until are available for people with disabilities location to the appropriate PSAP when after approval by the Office of (Braille, large print, electronic files, technically feasible; otherwise they Management and Budget. The audio format), by sending an email to must provide either dispatchable Commission will publish a document in [email protected] or calling the location based on end-user manual the Federal Register announcing Commission’s Consumer and update, or alternative location compliance dates with those paragraphs Governmental Affairs Bureau at (202) information. For off-premises MLTS and revising this paragraph (s) 418–0530 (voice), (202) 418–0432 calls to 911, the MLTS operator or accordingly. (TTY).

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Paperwork Reduction Act broadcasting in the AM and FM bands stated that it will waive licensing fees The R&O contains new or modified approved by the Commission is the HD for AM stations that choose to go all- information collection requirements Radio IBOC system. Although many FM digital. 5. Operating and technical rules. In subject to the Paperwork Reduction Act stations have converted to hybrid the R&O, the Commission establishes of 1995 (PRA), Public Law 104–13, see broadcasting, various technical and other issues have prevented the that the power limits for all-digital 44 U.S.C. 3507. The Commission, as widespread adoption of hybrid stations must be calculated using the part of its continuing effort to reduce broadcasting by AM stations. average power of the all-digital signal, paperwork burdens, will invite the 2. Testing and experimental including the unmodulated analog general public and the Office of broadcasting indicate that all-digital AM carrier and all of the digital sidebands, Management and Budget (OMB) to transmission has the potential to to determine whether the station comment on the information collection improve signal ‘‘robustness’’—or complies with the nominal power limits requirements contained in this resistance to interference and other set out in § 73.21 of the Commission’s document in a separate Federal Register impairments—as well as the ability to rules. Using the average power to Notice, as required by the PRA. These transmit auxiliary information to calculate compliance with the nominal new or modified information collections accompany the main audio power limit will enable more stations to will become effective after the programming. This robustness will use existing transmitters for all-digital Commission publishes a document in result in a clearer signal for listeners operations, thus reducing the cost of the Federal Register announcing such and a greater area of listenable coverage upgrading to all-digital and allowing approval and the relevant effective date. compared to an analog signal. All-digital more stations to convert. In addition, In addition, pursuant to the Small broadcasting will increase the format this method of calculating nominal Business Paperwork Relief Act of 2002, choices that AM broadcasters can offer power will result in a lower operating Public Law 107–198, see 44 U.S.C. to their audiences, including the option power for all-digital stations, which will 3506(c)(4), the Commission previously of music programming. Digital operation be less likely to cause interference with sought specific comment on how the also eliminates the tradeoff between analog signals while still maintaining Commission might further reduce the receiver audio bandwidth and noise improved listenable coverage areas. information collection burden for small performance. In addition, digital 6. The Commission applies the business concerns with fewer than 25 broadcasting allows visual and other emissions mask set out in § 73.44 of the employees. metadata, such as song and artist Commission’s rules to all-digital Congressional Review Act identification, station identification, and operations. This emissions mask emergency information, to be attenuates—or limits—spectral The Commission will send a copy of transmitted along with the audio emissions outside a bandwidth of 20 the R&O to Congress and the content. Such auxiliary information is kHz to the point where they do not Government Accountability Office increasingly expected by consumers and cause significant adjacent channel (GAO) pursuant to the Congressional considered to be a vital component of interference. The Commission Review Act, 5 U.S.C. 801(a)(1)(A). modern broadcasting. Finally, all-digital concludes that these emissions limits Synopsis broadcasting will result in energy and will adequately protect stations on spectrum efficiencies, because it adjacent channels from all-digital 1. Introduction. In this R&O, the provides additional and/or improved interference. It declines to impose the Commission adopts rules regarding all- services over the same allocated stricter emissions limits set out in the digital AM broadcasting that it proposed frequencies. HD Radio specifications, which may not in a notice of proposed rulemaking, FCC 3. The Commission anticipates that be set at technically feasible levels and 19–123, 34 FCC Rcd 11560 (2019), 85 potential loss of service to analog-only may need to be revisited in light of field FR 649 (Jan. 7, 2020) (NPRM). These listeners will be mitigated by the data from all-digital experimental rules allow AM stations, on a voluntary gradual, voluntary nature of the operation. Although testing indicates basis, to cease broadcasting an analog transition, the financial interest of radio that the digital signals may cause some signal and broadcast using only an all- stations in reaching a wide audience, increased degradation to analog signals, digital signal in the HD Radio MA3 duplicate programming provided by co- in most cases this will be masked by the mode. This measure will benefit AM owned AM stations, and analog noise floor, and in any case there is no stations and their listeners by improving broadcasts on FM translators affiliated evidence that interference will occur reception quality and listenable with all-digital AM stations. within service areas that are currently coverage in stations’ service areas and 4. The Commission finds that a protected under our rules. will advance the Commission’s goal of sufficient number of digital receivers are 7. Recognizing that digital power improving and modernizing the AM currently in use to support a voluntary measurement is an evolving and highly radio service. Currently, the AM option to convert to all-digital. technical area, the Commission provides broadcasting service suffers from Moreover, as the number of digital all-digital licensees the flexibility to interference and reception issues caused receivers increases, more markets will choose any reliable and reasonably in part by increased emissions from be able to support all-digital accurate method to measure their various consumer electronic devices as broadcasting. Similarly, the cost of compliance with the Commission’ well as broadcast sources. As a result, conversion is not an impediment to operating power and power spectral many AM stations are constrained to providing a voluntary option to convert, density rules, including measurement low-fidelity voice formats such as talk because stations can make their own tools integrated into digital transmitters, radio. Under the current rules, AM and decisions whether to pursue all-digital thermocouple RF ammeters, or FM stations are permitted to broadcast operations based on their own financial averaging the power spectral density in using either an analog signal or the and technical situation as well as the a 300-Hz bandwidth over a minimum hybrid analog and digital system needs and interests of their audience time span of 30 seconds and a minimum licensed by Xperi Corporation under the and the number of digital receivers in of 100 sweeps. brand name HD Radio. In the United their market. The Commission notes 8. Each all-digital station is obligated States, the only technology for digital that at the time of adoption, Xperi has to provide at least one free over-the-air

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digital programming stream that is resolve any immediate issues using station; (2) a transition from enhanced comparable to or better in audio quality existing rules and the remediation to core-only operating mode; or (3) a than a standard analog broadcast. procedure. Both daytime and nighttime reversion from all-digital to hybrid or Beyond this requirement, an all-digital all-digital AM operation are permitted, analog operation. licensee can use its additional digital and any prohibited interference 14. Although the Commission directs bitrate capacity for either broadcast or resulting from nighttime skywave broadcasters to use the current Form non-broadcast services consistent with transmissions must be promptly 335–AM for all-digital notifications, the Commission’s technical rules. The resolved. Finding that the record additional information is required for Commission permits each AM demonstrates the technical feasibility of notification of all-digital operations broadcaster to select either core-only or all-digital broadcasting, the Commission specifically. Therefore, until the Form enhanced mode transmission as their concludes that it is not in the public 335–AM is updated to display all-digital situation dictates. interest to delay implementation by operation requirements, the 9. The Commission imposes the same requiring additional tests or require that Commission directs filers to select ‘‘N/ carrier frequency tolerance applicable to stations undertake potentially expensive A’’ as appropriate within the form and analog and hybrid stations (±20 Hz) on digital conversions under experimental submit an attachment with the Form all-digital AM stations. It declines to licenses. 335–AM containing the following impose a ±1 Hz AM carrier frequency 12. All all-digital AM stations, like information: (1) The type of notification tolerance standard on all AM stations as other broadcast stations, must (all-digital notification, increase in proposed in the NPRM, on the basis that participate in the nationwide nominal power, reduction in nominal the benefit to audio reception of doing Emergency Alert System (EAS). This power, transition from core-only to so would not outweigh the burden on obligation extends to ensuring that any enhanced, transition from enhanced to already struggling AM stations. The ‘‘downstream’’ EAS participant stations core-only, reversion from all-digital to Commission also declines to incorporate are capable of receiving and decoding hybrid or analog operation); (2) the date by reference the National Radio Systems EAS alerts from the all-digital station or that new or modified all-digital Committee’s NRSC–5–D standard can adjust their monitoring assignments operation will commence or has ceased; governing all-digital transmission into to receive EAS alerts from another (3) a certification that the all-digital the Commission’s rules, as proposed in nearby station. The Commission operations will conform to the relevant the NPRM, finding that there is no need concludes that listeners will have nominal power and spectral emissions to do so and that—as a voluntary sufficient access to EAS alerts without limits; (4) the nominal power of the all- industry standard—the standard can be mandating that EAS alerts be digital station; (5) a certification that the more readily updated in response to transmitted using analog signals. In all-digital station complies with all EAS technological developments or addition, all-digital stations can requirements; and (6) if a notification of operational feedback from all-digital transmit useful emergency information commencement of new all-digital stations. to listeners other than on the main service or a nominal power change, 10. The Commission prohibits all- audio stream, including, for example, whether the station is operating in core- digital stations from causing text in multiple languages or images only or enhanced mode. interference as currently defined in the such as missing persons or evacuation 15. During the 30-day period rules. Although testing indicates that routes. established above, the Commission the potential for co-channel interference 13. The Commission adopts a requires that an AM broadcaster is higher for all-digital than for analog, modified version of the current digital commencing new all-digital operation the Commission concludes that neither notification procedure for all-digital must provide reasonable notice to its adjacent- or co-channel interference as stations by adding a 30-day waiting listeners that the station will be defined in the rules is likely to occur. period for certain operational changes. converting to all-digital operation and The potential for additional co-channel Specifically, it requires licensees to will no longer be available on analog interference is mitigated in the presence electronically file a digital notification, receivers. Because broadcasters have a of a high level of environmental noise, using the existing FCC Form 335–AM strong incentive to promote such a in which case the all-digital interference Digital Notification (or any successor change to their listeners, the is likely to be subsumed by the overall notification), to notify the Commission Commission gives them flexibility to noise floor, masking the interfering of the following changes: (1) The use reasonable methods intended to effect of the all-digital signal. However, commencement of new all-digital reach their audience, including on-air if prohibited interference occurs, the operation; (2) an increase in nominal and website announcements. However, Commission establishes a remediation power of an all-digital AM station; or (3) in the event that the reasonableness of procedure based on the procedures a transition from core-only to enhanced notice of conversion to all-digital currently applicable to hybrid stations. operating mode. All-digital AM operation is challenged, the Specifically, the Commission expects notifications will be placed on a Commission would consider it AM all-digital operators and Commission public notice, and new presumptively sufficient if the complaining stations to work together to operation may begin no sooner than 30 broadcaster provided at least the same identify whether interference exists and calendar days from the date of this amount of notice as that set out in to resolve it in a mutually acceptable public notice. This will minimize the § 73.3580, the local public notice rule, fashion, including voluntary power paperwork required for all-digital AM with which broadcasters are already reduction. conversions while giving local co- familiar. 11. The new rules permit up to 6 dB channel and adjacent channel stations 16. The Commission declined to power reduction, without prior time to gather baseline data on their consider alternative technologies to HD approval, in the all-digital secondary or existing coverage before the new all- Radio, such as Digital Radio Mondiale, tertiary sidebands (but not the primary digital operation begins. Digital finding that in the absence of any data digital sidebands) to avoid or resolve notification must be submitted within regarding DRM performance in the U.S. prohibited interference. The ten days of implementing all other AM band, it cannot evaluate its merits. Commission expects that the gradual changes, namely: (1) Any reduction in Because it is in the public interest to nature of the transition will enable it to nominal power of an all-digital AM provide an immediate path forward for

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AM stations to broadcast in all-digital as all-digital meets their own needs and Counsel for Advocacy of the Small their circumstances allow, the market demand. In the R&O, the Business Administration (SBA), and to Commission approves the HD Radio Commission concludes that the public provide a detailed statement of any MA3 mode as the only currently feasible interest in the long-term viability of AM change made to the proposed rules as a technology option before it, but does not stations and the valuable services they result of those comments. 5 U.S.C. foreclose the future consideration of provide, outweighs a possible loss of 604(a)(3). The Chief Counsel did not file alternative transmission technologies. service to some current analog listeners any comments in response to the as broadcasters and the listening public proposed rules in this proceeding. Procedural Matters transition to an all-digital environment. 24. Description and Estimate of the 17. Final Regulatory Flexibility All-digital service represents a Number of Small Entities to Which the Analysis. As required by the Regulatory significant and singular opportunity to Proposed Rules Will Apply. The RFA Flexibility Act of 1980, as amended preserve the AM service for future directs the Commission to provide a (RFA), an Initial Regulatory Flexibility listeners. Any disruption to analog description of and, where feasible, an Analysis (IRFA) was incorporated into listeners will take place gradually, as estimate of the number of small entities the NPRM in this proceeding. The AM stations individually decide their that will be affected by the rules Commission sought written public audience is ready to convert to all- adopted herein. The RFA generally comment on the proposals in the NPRM, digital, with full notice to consumers defines the term ‘‘small entity’’ as including comment on the IRFA. and ample opportunity to adjust to the having the same meaning as the terms Because the Commission amended the new technology. ‘‘small business,’’ ‘‘small organization,’’ rules in this Report and Order (R&O), it 20. In the R&O, the Commission and ‘‘small government jurisdiction.’’ In included this Final Regulatory authorizes all-digital operations subject addition, the term ‘‘small business’’ has Flexibility Analysis (FRFA), which to the requirement that all-digital the same meaning as the term ‘‘small conforms to the RFA. operations not cause prohibited business concern’’ under the Small 18. Need for, and Objectives of, the interference to existing broadcast Business Act. A small business concern R&O. The R&O adopts several rule stations. In the unlikely event that such is one which: (1) Is independently changes to allow AM stations to interference would occur, the owned and operated; (2) is not voluntarily broadcast an all-digital Commission will apply current dominant in its field of operation; and signal using the digital broadcasting remediation procedures that encourage (3) satisfies any additional criteria technology known as HD Radio MA3. cooperation between the parties to established by the Small Business This action will improve the AM radio resolve complaints and include an Administration (SBA). service by providing enhanced audio option to voluntarily reduce power. The 25. Radio Stations. Radio stations are quality, increasing listenable reception Commission adopts the proposal in the an Economic Census category that areas, and allowing additional metadata NPRM that each all-digital station is ‘‘comprises establishments primarily textual information, such as song and obligated to provide at least one free engaged in broadcasting aural programs artist identification, traffic services, and over-the-air digital programming stream by radio to the public. Programming digital emergency alerts, to be that is comparable to or better in audio may originate in their own studio, from transmitted along with the main audio quality than a standard analog an affiliated network, or from external programming. All-digital operation will broadcast. It also mandates that all- sources.’’ The SBA has established a increase the format choices that AM digital AM stations participate in the small business size standard for this broadcasters can offer to their national Emergency Alert System (EAS). category as firms having $41.5 million audiences, including the option of 21. Although all-digital conversion is or less in annual receipts. Economic music programming. These greater a purely voluntary process for Census data for 2012 shows that 2,849 capabilities will level the playing field individual AM stations, the Commission radio station firms operated during that between AM and FM signals from the strongly supports an all-digital future year. Of that number, 2,806 operated listener’s perspective, and help AM and affirms that the objective of the with annual receipts of less than $25 stations recapture audiences lost to FM proceeding is a viable all-digital AM million per year, and 43 firms had radio, satellite radio, or online service. Supporting all-digital removes annual receipts of $25 million or more. streaming services because of their any regulatory uncertainty about the Because the Census has no additional higher sound fidelity and broader future of the AM HD Radio system and classifications that could serve as a basis programming array. All-digital AM should give car companies and receiver for determining the number of stations operation will also provide the full manufacturers reassurance to invest in whose receipts exceeded $41.5 million technological benefits of digital AM digital receivers. Thus, an all-digital in that year, the Commission concludes broadcasting while avoiding the environment will reduce the likelihood that the majority of radio broadcast shortcomings of the current analog or of interference while maximizing digital stations were small entities under the hybrid modes of transmission, which benefits such as an improved high- applicable SBA size standard. are more susceptible to noise and quality listener experience, signal 26. Apart from the U.S. Census, the interference, more likely to cause robustness, reliable and listenable Commission has estimated the number interference to other stations, and place coverage, and superior audio quality. of licensed commercial AM stations to more demands on an AM station’s 22. Summary of Significant Issues be 4,570 and the number of commercial transmission and antenna system. Raised by Public Comments in Response FM stations to be 6,706 for a total of 19. All-digital operation provides to the IRFA. There were no comments 11,276, along with 8,303 FM translator greater usable signal coverage, is energy- to the IRFA filed. and booster stations. According to BIA/ and spectrum-efficient, and will be 23. Response to Comments by the Kelsey Publications, Inc.’s Media Access supported by an ever-increasing number Chief Counsel for Advocacy of the Small Pro Database, as of March 2020, 4,389 of digital receivers. Since all-digital Business Administration. Pursuant to AM stations and 6,767 FM stations had operation is completely voluntary, and the Small Business Jobs Act of 2010, revenues of $41.5 million or less. In the cost of conversion will vary from which amended the RFA, the addition, the Commission has estimated station to station, AM broadcasters will Commission is required to respond to the number of noncommercial be able to decide whether conversion to any comments filed by the Chief educational FM radio stations to be

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4,197. NCE stations are non-profit, and notification must be submitted within innovation regarding the all-digital HD therefore considered to be small entities. ten days of implementing all other Radio technology. Therefore, in Accordingly, the Commission estimates changes, namely: (1) Any reduction in reaching the approach taken in the R&O, that the majority of radio broadcast nominal power of an all-digital AM the Commission considered various stations are small entities. The station; (2) a transition from enhanced alternatives and their effects on AM Commission notes, however, that, in to core-only operating mode; or (3) a broadcasters, including small entities. assessing whether a business concern reversion from all-digital to hybrid or 32. Report to Congress. The qualifies as small under the above analog operation. There is no fee for Commission will send a copy of the definition, business (control) affiliations filing a digital notification. R&O to Congress and the Government must be included. Our estimate, 29. The R&O does not adopt Accountability Office pursuant to the therefore, likely overstates the number recordkeeping requirements. However, Congressional Review Act. In addition, of small entities that might be affected it does require licensees converting AM the Commission will send a copy of the by our action, because the revenue stations to all-digital operation to document, including this FRFA, to the figure on which it is based does not provide reasonable notice to its listeners Chief Counsel for Advocacy of the SBA. include or aggregate revenues from that their station will be converting to A copy of the document and FRFA (or affiliated companies. all-digital operations and will no longer summaries thereof) will also be 27. Moreover, as noted above, an be available on analog receivers. published in the Federal Register. element of the definition of ‘‘small 30. Steps Taken to Minimize 33. Paperwork Reduction Act. This business’’ is that the entity not be Significant Impact on Small Entities R&O contains new or modified dominant in its field of operation. The and Significant Alternatives Considered. information collection requirements Commission is unable at this time to The RFA requires an agency to describe subject to the Paperwork Reduction Act define or quantify the criteria that any significant alternatives that it has of 1995 (PRA), Public Law 104–13. The would establish whether a specific radio considered in reaching its proposed requirements will be submitted to the station is dominant in its field of approach, which may include the Office of Management and Budget operation. Accordingly, the estimate of following four alternatives (among (OMB) for review under section 3507(d) small businesses to which rules may others): (1) The establishment of of the PRA. OMB, the general public, apply does not exclude any radio station differing compliance or reporting and other Federal agencies are invited to from the definition of a small business requirements or timetables that take into comment on the new or modified on this basis and therefore may be over- account the resources available to small information collection requirements inclusive to that extent. Also, as noted, entities; (2) the clarification, contained in this proceeding. In an additional element of the definition consolidation, or simplification of addition, the Commission notes that of ‘‘small business’’ is that the entity compliance or reporting requirements pursuant to the Small Business must be independently owned and under the rule for small entities; (3) the Paperwork Relief Act of 2002, Public operated. The Commission notes that it use of performance, rather than design, Law 107–198, see 44 U.S.C. 3506(c)(4), is difficult at times to assess these standards; and (4) an exemption from it previously sought specific comment criteria in the context of media entities coverage of the rule, or any part thereof, on how the Commission might further and the estimates of small businesses to for small entities. reduce the information collection which they apply may be over-inclusive 31. Conversion to all-digital AM burden for small business concerns with to this extent. transmission (and then, consequent fewer than 25 employees. 28. Description of Projected compliance with the rules governing all- 34. Congressional Review Act. The Reporting, Recordkeeping, and Other digital operation) is completely Commission has determined, and the Compliance Requirements. The rules voluntary and therefore flexible, based Administrator of the Office of changes adopted in the R&O establish a on an AM broadcaster’s assessment of Information and Regulatory Affairs, straightforward procedure for stations to its individual financial and technical Office of Management and Budget, notify the Commission of a change to circumstances, including size. AM concurs, that these rules are ‘‘non- all-digital operations. The notification broadcasters overwhelmingly support major’’ under the Congressional Review requirement for all-digital operations, is the proposal to allow all-digital AM Act, 5 U.S.C. 804(2). The Commission as follows: AM licensees must broadcasting, as do broadcast engineers, will send a copy of this R&O to Congress electronically file a digital notification, technology companies, and individual and the Government Accountability using the existing FCC Form 335–AM listeners. Of the technical requirements Office pursuant to the Congressional Digital Notification (or any successor contemplated in the NPRM, the Review Act. notification form), to notify the Commission evaluated several Commission of the following proposed alternative options. The Commission Ordering Clauses changes: (1) The commencement of new originally considered imposing a (non- 35. It is ordered that, pursuant to the all-digital operation; (2) an increase in voluntary) stricter frequency tolerance authority contained in Sections 1, 4(i), nominal power of an all-digital AM standard of 1 Hz on all AM 4(j), 301, 303, 307, 308, 309, 316, and station; or (3) a transition from core-only broadcasters, but decided that the 319 of the Communications Act of 1934, to enhanced operating mode. All-digital benefits of doing so would not outweigh as amended, 47 U.S.C. 151, 154(i), AM notifications will be placed on an the associated burden of upgrading 154(j), 301, 303, 307, 308, 309, 316, and FCC public notice, and new operation transmission equipment, particularly for 319, this Report and Order is adopted may begin no sooner than 30 calendar smaller AM broadcasters, and declined and will become effective 30 days after days from the date of this public notice. to adopt the requirement. In addition, publication in the Federal Register. This notification process will minimize the Commission considered 36. It is further ordered that part 73 the paperwork required for all-digital incorporating the NRSC–5–D Standard of the Commission’s Rules is amended AM conversions, while giving local co- governing the technical implementation as set forth in the Final Rules and such channel and adjacent channel stations of HD Radio all-digital radio into the rule amendments will become effective time to gather baseline data on their rules, but upon careful consideration of 30 days after publication in the Federal existing coverage before the new all- the record, decided that doing so would Register, except for new § 73.406, which digital operation begins. Digital be unnecessary and could stifle industry contains new or modified information

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collection requirements that require at least comparable in sound quality (2) All-digital licensees will not be approval by the Office of Management with a standard analog broadcast. permitted to commence operation and Budget under the Paperwork * * * * * sooner than 30 calendar days from Reduction Act and will become effective ■ 4. In § 73.404, revise the section public notice of digital notification of after the Commission publishes a heading and paragraphs (a) and (b) and the following changes: document in the Federal Register remove paragraph (e) to read as follows: (i) The commencement of new all- announcing such approval and the digital operation; relevant effective date. § 73.404 IBOC DAB operation. (ii) An increase in nominal power of 37. It is further ordered that the (a) The licensee of an AM or FM an all-digital AM station; or Commission’s Consumer and station, or the permittee of a new AM or (iii) A transition from core-only to Governmental Affairs Bureau, Reference FM station which has commenced enhanced operating mode. Information Center, shall send a copy of program test operation pursuant to (b) Every digital notification must this Report and Order, including the § 73.1620, may commence hybrid IBOC include the following information: Final Regulatory Flexibility DAB operation with digital facilities (1) The call sign and facility Certification, to the Chief Counsel for which conform to the technical identification number of the station; Advocacy of the Small Business specifications specified for hybrid DAB (2) If applicable, the date on which Administration. operation in the (2002) First Report and the new or modified IBOC operation 38. It is further ordered that the Order in MM Docket No. 99–325, as commenced or ceased; Commission shall send a copy of this revised in the Media Bureau’s (3) The name and telephone number Report and Order in a report to be sent subsequent Order in MM Docket No. of a technical representative the to Congress and the Government 99–325. In addition, the licensee of an Commission can call in the event of Accountability Office pursuant to the AM station, or the permittee of a new interference; Congressional Review Act, see 5 U.S.C. AM station that has commenced (4) A certification that the operation 801(a)(1)(A). program test authority pursuant to will not cause human exposure to levels § 73.1620, may, with reasonable notice List of Subjects in 47 CFR Part 73 of radio frequency radiation in excess of to listeners, commence all-digital IBOC the limits specified in § 1.1310 of this Radio, Reporting and recordkeeping operation with digital facilities that chapter and is therefore categorically requirements. conform to the requirements set out in excluded from environmental Federal Communications Commission. the (2020) Report and Order in MB processing pursuant to § 1.1306(b) of Marlene Dortch, Docket No. 19–311 and MB Docket No. this chapter. Any station that cannot 13–249. An AM or FM station may Secretary. certify compliance must submit an transmit IBOC signals during all hours environmental assessment (‘‘EA’’) For the reasons discussed in the for which the station is licensed to pursuant to § 1.1311 of this chapter and preamble, the Federal Communications broadcast. may not commence IBOC operation Commission amends 47 CFR part 73 as (b) In situations where interference to until such EA is ruled upon by the follows: other stations is anticipated or actually Commission. occurs, hybrid AM licensees may, upon (c) Each AM digital notification must PART 73—RADIO BROADCAST notification to the Commission, reduce also include the following information: SERVICES the power of the primary DAB (1) A certification that the IBOC DAB sidebands by up to 6 dB. All-digital AM ■ 1. The authority citation for part 73 licensees, may, upon notification to the facilities conform to applicable nominal continues to read as follows: Commission, reduce the power of the power limits and emissions mask limits; Authority: 47 U.S.C. 154, 155, 301, 303, secondary and tertiary sidebands by up (2) The nominal power of the station; 307, 309, 310, 334, 336, 339. to 6 dB, even if doing so results in non- if separate analog and digital ■ 2. In § 73.402, add paragraph (h) to compliance with § 73.1560(a)(1). Any transmitters are used, the nominal read as follows: greater reduction of sideband power power for each transmitter; requires prior authority from the (3) If applicable, the amount of any § 73.402 Definitions. Commission via the filing of a request reduction in an AM station’s digital * * * * * for special temporary authority or an carriers; (h) All-digital AM station. An AM informal letter request for modification (4) For all-digital stations, the type of station broadcasting an IBOC waveform of license. notification (all-digital notification, increase in nominal power, reduction in that consists solely of digitally * * * * * modulated subcarriers and the nominal power, transition from core- ■ 5. Add § 73.406 to read as follows: unmodulated AM carrier. only to enhanced, transition from ■ 3. In § 73.403, revise paragraph (a) to § 73.406 Notification. enhanced to core-only, reversion from read as follows: (a) Hybrid AM and FM licensees must all-digital to hybrid or analog electronically file a digital notification operation); § 73.403 Digital audio broadcasting to the Commission in Washington, DC, (5) For all-digital stations, if a service requirements. within 10 days of commencing IBOC notification of commencement of new (a) Broadcast radio stations using digital operation. all-digital service or a nominal power IBOC must transmit at least one over- (1) All-digital licensees must file a change, whether the station is operating the-air digital audio programming digital notification within 10 days of the in core-only or enhanced mode; and stream at no direct charge to listeners. following changes: (6) For all-digital stations, a In addition, a hybrid broadcast radio (i) Any reduction in nominal power of certification that the all-digital station station must simulcast its analog audio an all-digital AM station; complies with all Emergency Alert programming on one of its digital audio (ii) A transition from enhanced to System (EAS) requirements in part 11 of programming streams. The DAB audio core-only operating mode; or this chapter. programming stream that is provided (iii) A reversion from all-digital to (d) Each FM digital notification must pursuant to this paragraph (a) must be hybrid or analog operation. also include the following information:

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(1) A certification that the IBOC DAB SUPPLEMENTARY INFORMATION: This is a 3. When the Commission adopted the facilities conform to the HD Radio summary of the Commission’s Order on point system, it considered and rejected emissions mask limits; Reconsideration (Reconsideration proposals to engage in secondary (2) FM digital effective radiated power Order) in the NCE comparative application analyses, whereby it would used and certification that the FM standards proceeding, MB Docket No. reevaluate the unsuccessful applications analog effective radiated power remains 19–3, FCC 19–127, released March 20, in an MX group that did not directly as authorized; 2020, published at 85 FR 7880 on conflict with the ultimate tentative (3) If applicable, the geographic February 12, 2020. The full text of the selectee of the group. The Commission coordinates, elevation data, and license Reconsideration Order is available explained that its primary goal was to file number of the auxiliary antenna electronically via the FCC’s Electronic select the best qualified applicants in an employed by an FM station as a separate Document Management System administratively efficient way. digital antenna; and (EDOCS) website at http:// 4. The Commission opened a filing (4) If applicable, for FM systems fjallfoss.fcc.gov/edocs_public/ or via the window for new NCE stations in 2007, employing interleaved antenna bays, a FCC’s Electronic Comment Filing and in 2010, the Commission issued the certification that adequate filtering and/ System (ECFS) website at http:// first of its comparative points orders or isolation equipment has been www.fcc.gov/ecfs. (Documents will be resolving MX groups from the 2007 installed to prevent spurious emissions available electronically in ASCII, window. In the order, the Commission in excess of the limits specified in Microsoft Word, and/or Adobe Acrobat.) reiterated its policy ‘‘that only one § 73.317. Alternative formats are available for application should be granted out of each mutually exclusive group, while [FR Doc. 2020–25252 Filed 12–2–20; 8:45 am] people with disabilities (braille, large print, electronic files, audio format), by providing the competing applicants the BILLING CODE 6712–01–P sending an email to [email protected] or opportunity to file again in the next calling the Commission’s Consumer and filing window.’’ 5. Several dismissed applicants FEDERAL COMMUNICATIONS Governmental Affairs Bureau at (202) subsequently challenged their COMMISSION 418–0530 (voice), (202) 418–0432 (TTY). dismissals and argued that their 47 CFR Part 73 applications should also be granted Synopsis because they were not mutually [MB Docket No. 19–3; FCC 20–121; FRS 1. Introduction. In this exclusive with the tentative selectees in 17135] Reconsideration Order, the Commission their respective MX groups. The addresses the Petition for Commission again reaffirmed its one- Reexamination of the Comparative Reconsideration filed by Discount Legal grant policy in three 2015 Memorandum Standards and Procedures for seeking reconsideration of the 2019 NCE Opinions and Orders, rejecting Licensing Noncommercial Educational Report and Order. The Petition asks the petitioners’ requests for secondary Broadcast Stations and Low Power FM Commission to authorize ‘‘secondary grants. The Commission explained that Stations grants’’ in mutually exclusive (MX) FM its policy basis not to engage in AGENCY: Federal Communications radio noncommercial educational (NCE) secondary grants was supported by the Commission. groups, after the initial resolution of the dual reasons of not granting inferior MX applications. The Commission applications and promoting ACTION: Dismissal of petition for dismisses the Petition as procedurally administrative efficiency. reconsideration. defective, and alternatively and 6. Finally, in the 2019 NCE Report and Order, the Commission considered SUMMARY: In this document the Federal independently, denies the Petition. 2. Background. Conflicting NCE FM Communications Commission and rejected Discount Legal’s suggestion applications, which cannot all be (Commission) addresses the Petition for that it adopt a secondary grant practice. granted consistent with the Reconsideration (Petition) filed by The Commission reaffirmed its Commission’s technical rules, are Discount Legal, regarding the longstanding one-grant policy. In the considered mutually exclusive. The Commission’s Report and Order in the Petition, Discount Legal renews the Commission places conflicting Noncommercial Educational (NCE) arguments in favor of a secondary grant applications into MX groups, resolves comparative standards proceeding (2019 policy made in its comments. the MX groups by applying the NCE 7. Discussion. The Commission NCE R&O). The Commission dismisses comparative procedures, and tentatively dismisses the Petition as repetitive and the Petition as procedurally defective, selects an application for grant from procedurally defective. On alternative and alternatively and independently, each separate MX group. Specifically, and independent grounds, the denies the Petition. the Commission compares NCE MX Commission denies the Petition as DATES: Request for Petition for groups under the point system and meritless and affirms its longstanding Reconsideration of the final rule awards each application a maximum of one-grant policy, which is supported by published at 85 FR 23941 (April 30, seven merit points based on public- the dual rationales of expeditiously 2020). The Commission adopted the interest criteria. The application with granting high-quality applications and Order on Reconsideration dismissing the most points in an MX group is limiting administrative burdens. and denying the Petition for designated the tentative selectee. The 8. High Quality Applications. The Reconsideration on September 1, 2020. Bureau staff then accepts the Commission rejects Discount Legal’s FOR FURTHER INFORMATION CONTACT: tentatively-selected applications for assertion that the potential disparities Albert Shuldiner, Chief, Media Bureau, filing, which triggers a 30-day period for between the quality of unsuccessful Audio Division, (202) 418–2721; Lisa the filing of petitions to deny. Petitions applicants in an MX group is Scanlan, Deputy Division Chief, Media based on claims that the exclusion, or ‘‘irrelevant.’’ The Commission’s one- Bureau, Audio Division, (202) 418– inclusion, of challenged or claimed grant policy is designed to encourage 2704; Amy Van de Kerckhove, Attorney points could alter the outcome in the the best possible application Advisor, Media Bureau, Audio Division, particular MX group are referred to the submissions in every filing window. (202) 418–2726. Commission for a new points analysis. The current policy creates competitive

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pressure toward this end because result in greater long-term efficiency Monday, May 11, 2020, make the applicants know that only the best and effectiveness. Rather, the one-grant following correction: application in an MX group will win. policy better serves the policy goals of ■ 9. The Commission also rejects sections 152 and 303(g) by incentivizing On page 27852, in the second column, Discount Legal’s argument that ‘‘the better applications as well as amendatory instruction 2d is corrected idea than an applicant must be cooperative settlements that encourage to read as follows: dismissed because it is comparatively more intensive and higher quality use of § 171.7 [Corrected] inferior to an unqualified applicant spectrum. being dismissed’’ violates the Supreme 13. Established One-Grant Policy. d. Add paragraphs (w)(53), (62), (66), Court’s holding in Ashbacker Radio Finally, the Commission’s rejects (69), (71), (72), and (75) through (77); Corp. v. FCC. The Commission Discount Legal’s argument that the one- [FR Doc. C1–2020–06205 Filed 12–2–20; 8:45 am] previously considered and rejected this grant policy was not endorsed by the BILLING CODE 1301–00–D argument in a prior decision affirming Commission, but rather, originated with the one-grant policy and explained that the Bureau staff. The Commission Ashbacker ‘‘[does not] require the explains that Discount Legal’s Commission to engage in secondary characterization is directly at odds with DEPARTMENT OF THE INTERIOR analyses of inferior applications simply the Commission’s explicit mandate in because they do not conflict with the the 2001 NCE Comparative MO&O, the Fish and Wildlife Service tentative selectee.’’ subsequent Commission decisions 10. Administrative Burdens. The stating that the Bureau correctly applied 50 CFR Part 17 Commission rejects Discount Legal’s the NCE Comparative MO&O, and the contention that the concern about Commission’s recent reaffirmation of administrative burdens ‘‘does not hold the one-grant policy in the 2019 Report [FF09E21000 FXES11110900000 212] up.’’ Discount Legal does not consider and Order. These decisions reflect that Endangered and Threatened Wildlife the extensive work required following it has been, and remains, the resolve of and Plants; Eleven Species Not the issuance of tentative selectee orders. the Commission—not the staff—that the The Commission explains that a Bureau process applications based on a Warranted for Listing as Endangered tentative selection is not final until the ‘‘one-grant’’ policy. or Threatened Species entire administrative process of resolving petitions to deny, and any Ordering Clauses AGENCY: Fish and Wildlife Service, subsequent pleadings, is complete. 14. It is ordered that the Petition for Interior. Commission review of any petitions and Reconsideration filed on March 12, ACTION: Notification of findings. associated point audits is a weighty and 2020, by Discount Legal is dismissed, and alternatively and independently, is oftentimes lengthy process, requiring SUMMARY: We, the U.S. Fish and denied. extensive analysis to determine the Wildlife Service (Service), announce status of every tentative selectee’s 15. It is further ordered that should no further petitions for reconsideration or findings that eleven species are not application and the merits of every warranted for listing as endangered or petition to deny. If a petition to deny is petitions for judicial review be timely threatened species under the granted, a new tentative selectee must filed, MB Docket No. 19–3 shall be Endangered Species Act of 1973, as be chosen, and petitions to deny must terminated, and its docket closed. amended (Act). After a thorough review again be entertained. Federal Communications Commission. 11. The one-grant policy incentivizes of the best available scientific and Marlene Dortch, commercial information, we find that it applicants to resolve mutual Secretary. exclusivities through the more is not warranted at this time to list the [FR Doc. 2020–23306 Filed 12–2–20; 8:45 am] expeditious settlement process, thereby Doll’s daisy, Puget Oregonian, Rocky accelerating new NCE service to the BILLING CODE 6712–01–P Mountain monkeyflower, southern public. The Commission rejects white-tailed ptarmigan, tidewater Discount Legal’s argument that it is amphipod, tufted puffin, Hamlin Valley irrational to allow multiple grants in an DEPARTMENT OF TRANSPORTATION pyrg, longitudinal gland pyrg, sub- MX group in the settlement context but globose snake pyrg, the Johnson Springs Pipeline and Hazardous Materials Wetland Complex population of relict not engage in secondary analysis Safety Administration through the point system. This dace, or Clear Lake hitch. However, we ask the public to submit to us at any argument does not account for the 49 CFR Parts 171, 172, 173, 174, 175, time any new information relevant to fundamentally different nature of the 176, 178 and 180 two conflict-resolution methods and the the status of any of the species time each process entails. [Docket No. PHMSA–2017–0108 (HM–215O)] mentioned above or their habitats. 12. The Commission also rejects the RIN 2137–AF32 DATES: The findings in this document argument that secondary grants would were made on December 3, 2020. better accomplish the section 152 and Hazardous Materials: Harmonization 303(g) statutory objectives of efficient With International Standards ADDRESSES: Detailed descriptions of the and effective radio use. The bases for these findings are available on Commission explains that simply Correction the internet at http:// granting as many applications as In rule document 2020–06205, www.regulations.gov under the possible in any given window will not beginning on page 27810, in the issue of following docket numbers:

Species Docket No.

Doll’s daisy ...... FWS–R5–ES–2020–0066. Puget Oregonian ...... FWS–R1–ES–2020–0067.

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Species Docket No.

Rocky Mountain monkeyflower ...... FWS–R6–ES–2012–0052. Southern white-tailed ptarmigan ...... FWS–R6–ES–2012–0023. Tidewater amphipod ...... FWS–R5–ES–2020–0068. Tufted puffin ...... FWS–R7–ES–2020–0072. Hamlin Valley pyrg ...... FWS–R6–ES–2020–0069. Longitudinal gland pyrg ...... FWS–R6–ES–2020–0070. Sub-globose snake pyrg ...... FWS–R6–ES–2020–0071. Relict dace ...... FWS–R8–ES–2020–0113. Clear Lake hitch ...... FWS–R8–ES–2020–0112.

Supporting information used to INFORMATION CONTACT. Please submit any under FOR FURTHER INFORMATION prepare this finding is available by new information, materials, comments, CONTACT. contacting the appropriate person as or questions concerning this finding to specified under FOR FURTHER the appropriate person, as specified FOR FURTHER INFORMATION CONTACT:

Species Contact information

Doll’s daisy ...... Eric Schrading, Field Supervisor, New Jersey Field Office, (609) 382– 5272. Puget Oregonian ...... Brad Thompson, State Supervisor, Washington Fish and Wildlife Of- fice, (360) 753–9440. Rocky Mountain monkeyflower ...... Ann Timberman, Acting Field Supervisor, Colorado Ecological Services Field Office, (970) 628–7181. Southern white-tailed ptarmigan ...... Ann Timberman, Acting Field Supervisor, Colorado Ecological Services Field Office, (970) 628–7181. Tidewater amphipod ...... Julie A. Slacum, Division Chief, Strategic Resource Conservation, Chesapeake Bay Field Office, (410) 573–4595. Tufted puffin ...... Stewart Cogswell, Field Supervisor, Anchorage Fish and Wildlife Con- servation Office, (907) 271–2787. Hamlin Valley pyrg, longitudinal gland pyrg, and sub-globose snake Laura Romin, Deputy Field Supervisor, Utah Ecological Services Field pyrg. Office, (801) 975–3330, ext. 142. Relict dace ...... Mark Jackson, Field Supervisor, Reno Fish and Wildlife Office, (775) 861–6300. Clear Lake hitch ...... Kim Turner, Acting Field Supervisor, Sacramento Fish and Wildlife Of- fice, (916) 414–6700.

If you use a telecommunications Endangered and Threatened Wildlife These factors represent broad device for the deaf (TDD), please call the and Plants (Lists). The Act defines categories of natural or human-caused Federal Relay Service at 800–877–8339. ‘‘species’’ as any subspecies of fish or actions or conditions that could have an SUPPLEMENTARY INFORMATION: wildlife or plants, and any distinct effect on a species’ continued existence. population segment of any species of In evaluating these actions and Background vertebrate fish or wildlife which conditions, we look for those that may Under section 4(b)(3)(B) of the Act (16 interbreeds when mature. The Act have a negative effect on individuals of U.S.C. 1531 et seq.), we are required to defines ‘‘endangered species’’ as any the species, as well as other actions or make a finding whether or not a species that is in danger of extinction conditions that may ameliorate any petitioned action is warranted within 12 throughout all or a significant portion of negative effects or may have positive months after receiving any petition for its range (16 U.S.C. 1532(6)), and effects. which we have determined contains ‘‘threatened species’’ as any species that We use the term ‘‘threat’’ to refer in substantial scientific or commercial is likely to become an endangered general to actions or conditions that are information indicating that the species within the foreseeable future known to or are reasonably likely to petitioned action may be warranted throughout all or a significant portion of negatively affect individuals of a (‘‘12-month finding’’). We must make a its range (16 U.S.C. 1532(20)). Under species. The term ‘‘threat’’ includes finding that the petitioned action is: (1) section 4(a)(1) of the Act, a species may actions or conditions that have a direct Not warranted; (2) warranted; or (3) be determined to be an endangered impact on individuals (direct impacts), warranted but precluded. We must species or a threatened species because as well as those that affect individuals publish a notice of these 12-month of any of the following five factors: findings in the Federal Register. (A) The present or threatened through alteration of their habitat or destruction, modification, or required resources (stressors). The term Summary of Information Pertaining to ‘‘threat’’ may encompass—either the Five Factors curtailment of its habitat or range; (B) Overutilization for commercial, together or separately—the source of the Section 4 of the Act (16 U.S.C. 1533) recreational, scientific, or educational action or condition or the action or and the implementing regulations at purposes; condition itself. However, the mere part 424 of title 50 of the Code of (C) Disease or predation; identification of any threat(s) does not Federal Regulations (50 CFR part 424) (D) The inadequacy of existing necessarily mean that the species meets set forth procedures for adding species regulatory mechanisms; or the statutory definition of an to, removing species from, or (E) Other natural or manmade factors ‘‘endangered species’’ or a ‘‘threatened reclassifying species on the Lists of affecting its continued existence. species.’’ In determining whether a

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species meets either definition, we must indentatus), tufted puffin (Fratercula finding on the April 20, 2010, petition evaluate all identified threats by cirrhata), Hamlin Valley pyrg to list Doll’s daisy under the Act. considering the expected response by (Pyrgulopsis hamlinensis), longitudinal Summary of Finding the species, and the effects of the gland pyrg (Pyrgulopsis anguina), sub- threats—in light of those actions and globose snake pyrg (Pyrgulopsis Doll’s daisy is a perennial plant in the conditions that will ameliorate the saxatilis), and Clear Lake hitch (Lavinia Asteraceae family that is known from threats—on an individual, population, exilicauda chi) meet the definition of Augusta County, Virginia; Sussex and and species level. We evaluate each ‘‘endangered species’’ or ‘‘threatened Warren Counties, New Jersey; and threat and its expected effects on the species,’’ we considered and thoroughly Dauphin County, Pennsylvania, the species, then analyze the cumulative evaluated the best scientific and latter regarded as a historical effect of all of the threats on the species commercial information available occurrence. The species occurs in as a whole. We also consider the regarding the past, present, and future certain isolated sinkhole ponds that cumulative effect of the threats in light stressors and threats. We reviewed the have widely fluctuating water levels, of those actions and conditions that will petitions, information available in our and its life history is adapted to these have positive effects on the species, files, and other available published and variable habitat conditions. The species such as any existing regulatory unpublished information. Our currently occurs in 21 population sites mechanisms or conservation efforts. The evaluation may include information in New Jersey (5 are on land owned or Secretary determines whether the from recognized experts; Federal, State, managed by the State, 6 are on private species meets the definition of an and tribal governments; academic property owned or managed by a ‘‘endangered species’’ or a ‘‘threatened institutions; foreign governments; conservation organization, and the species’’ only after conducting this private entities; and other members of remaining 10 populations are privately cumulative analysis and describing the the public. owned) and 22 population sites in expected effect on the species now and Virginia (7 are on U.S. Forest Service The species assessment forms for the in the foreseeable future. land, and the remaining 15 are on The Act does not define the term Doll’s daisy, Puget Oregonian, Rocky private property). ‘‘foreseeable future,’’ which appears in Mountain monkeyflower, southern Soil, water, sunlight, pollinator the statutory definition of ‘‘threatened white-tailed ptarmigan, tidewater services, and a suitable annual species.’’ Our implementing regulations amphipod, tufted puffin, Hamlin Valley temperature regime are interrelated at 50 CFR 424.11(d) set forth a pyrg, longitudinal gland pyrg, sub- resource needs required by Dolly’s daisy framework for evaluating the foreseeable globose snake pyrg, the Johnson Springs individuals and populations. At the future on a case-by-case basis. The term Wetland Complex population of relict metapopulation scale, the species likely ‘‘foreseeable future’’ extends only so far dace, and Clear Lake hitch contain more requires some degree of habitat into the future as the Service can detailed biological information, a connectivity to maintain viability; reasonably determine that both the thorough analysis of the listing factors, however, there is significant uncertainty future threats and the species’ responses and an explanation of why we regarding the degree of connectivity that to those threats are likely. In other determined that these species do not may be necessary between population words, the foreseeable future is the meet the definition of an endangered sites. We assume there is no natural period of time in which we can make species or a threatened species. This connectivity between the two extant reliable predictions. ‘‘Reliable’’ does not supporting information can be found on metapopulations in New Jersey and mean ‘‘certain’’; it means sufficient to the internet at http:// Virginia. provide a reasonable degree of www.regulations.gov under the We have carefully assessed the best confidence in the prediction. Thus, a appropriate docket number (see scientific and commercial information prediction is reliable if it is reasonable ADDRESSES, above). The following are available regarding the past, present, to depend on it when making decisions. informational summaries for the and future threats to the Doll’s daisy, It is not always possible or necessary findings in this document. and we evaluated all relevant factors to define foreseeable future as a under the five listing factors, including Doll’s Daisy particular number of years. Analysis of any regulatory mechanisms and the foreseeable future uses the best Previous Federal Actions conservation measures addressing these scientific and commercial data available stressors. The primary stressors affecting and should consider the timeframes On April 20, 2010, we received a the Doll’s daisy’s biological status applicable to the relevant threats and to petition from the Center for Biological include habitat modification (as a result the species’ likely responses to those Diversity (CBD), Alabama Rivers of development, agriculture, off-road threats in view of its life-history Alliance, Clinch Coalition, Dogwood vehicle use, altered surface hydrology, characteristics. Data that are typically Alliance, Gulf Restoration Network, and groundwater withdrawals) and relevant to assessing the species’ Tennessee Forests Council, and West climate change. There are conservation biological response include species- Virginia Highlands to list 404 aquatic, measures in place that benefit the specific factors such as lifespan, riparian, and wetland species, including species. Our species status assessment reproductive rates or productivity, Boltonia montana (referred to by the report for the Doll’s daisy evaluates certain behaviors, and other common names ‘‘Doll’s-daisy’’ and three plausible future scenarios for the demographic factors. ‘‘doll’s daisy’’ in the petition; referred to species. In our future condition In conducting our evaluation of the hereafter as Doll’s daisy), as endangered analysis, scenarios 1 and 3 predict five factors provided in section 4(a)(1) of or threatened species under the Act. On between 3 and 11 populations would the Act to determine whether the Doll’s September 27, 2011, we published in have lower resiliencies than the current daisy (Boltonia montana), Puget the Federal Register (76 FR 59836) a 90- condition, with the potential under one Oregonian (Cryptomastix devia), Rocky day finding in which we announced scenario that changes may result in the Mountain monkeyflower (Mimulus that the petition contained substantial extirpation of several low resiliency gemmiparus), southern white-tailed information indicating listing may be populations, perhaps causing a loss of ptarmigan (Lagopus leucura altipetens), warranted for the species. This redundancy. Under scenario 2, we tidewater amphipod (Stygobromus document constitutes our 12-month predict feasible conservation efforts

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would improve the condition of 22 Puget Oregonian is found in the Cascade Furthermore, the species’ ability to take populations. Under all scenarios, the Range and Puget Trough in Washington, refuge in small areas (microhabitat) species would maintain multiple and south into the foothills of the Coast could add to the future resiliency of moderate or high resiliency populations Range and Willamette Valley, in populations. in the New Jersey and Virginia Oregon; the species is recognized as We know that features of the species’ metapopulations; therefore, the species’ extirpated from British Columbia, habitat may change in the future, and representation is not predicted to Canada. we can project the scope and magnitude change from the current condition Most occurrence records for this of some of those environmental changes. (although we note that the historical species come from the Cispus River in However, our incomplete understanding extirpation of the Pennsylvania Washington on the Gifford Pinchot of how the species may respond to metapopulation may have reduced the National Forest, resulting from surveys changes in its environment over time species’ representation). conducted under the Northwest Forest creates a wide range of possibilities for Despite impacts from the primary Plan in areas where U.S. Forest Service the future condition of the 15 analytic stressors, Doll’s daisy has maintained projects were being considered. As a units we assessed. The best available resilient populations throughout its result, much of the potential suitable information does not indicate that the range. Although we predict some habitat for the Puget Oregonian remains future magnitude and scope of potential continued impacts from these stressors unsurveyed. environmental stressors would be at a in the future, we anticipate the species The primary stressors affecting the level that would cause the species to be will continue to maintain resilient Puget Oregonian include the effects of in danger of extinction in the populations throughout the foreseeable past, current, and future habitat loss, foreseeable future. future. Therefore, we find that listing modification, and fragmentation from Therefore, we find that listing the the Doll’s daisy as an endangered forest management, land conversion to Puget Oregonian as an endangered species or threatened species under the agriculture and development, big leaf species or threatened species under the Act is not warranted. A detailed maple dieback disease, and wildfire. Act is not warranted. A detailed discussion of the basis for this finding However, the species has been found in discussion of the basis for this finding can be found in the Doll’s daisy species areas that had been previously impacted can be found in the Puget Oregonian assessment and other supporting by some of these stressors (forest species status assessment and other documents (see ADDRESSES, above). practices, bigleaf maple dieback disease supporting documents (see ADDRESSES, and wildfire). The best available data above). Puget Oregonian provide no information on whether Rocky Mountain Monkeyflower Previous Federal Actions there is a declining or increasing population trend and limited Previous Federal Actions On March 17, 2008, we received a information on whether the range of the petition (dated March 13, 2008) from species has contracted or expanded in On October 4, 2011, we received a CBD, Conservation Northwest, the the last century. Ten of the 15 habitat petition from WildEarth Guardians Environmental Protection Information units assessed appear to have high requesting, in part, that we list the Center, the Klamath-Siskiyou Wildlands resilience, containing multiple Rocky Mountain monkeyflower as an Center, and Oregon Wild to list 32 contemporary validated records of this endangered or threatened species under species and subspecies of snails and species as well as a high percentage of the Act. On August 29, 2012, we slugs (mollusks), including Puget suitable habitat within the unit and in published in the Federal Register (77 Oregonian (Cryptomastix devia), in the the immediate and surrounding area. FR 52293) a 90-day finding that the Pacific Northwest as endangered or Although the species does not appear to petition presented substantial threatened species under the Act. On be particularly abundant across its information indicating that listing the October 5, 2011, we published in the range, and much uncertainty regarding Rocky Mountain monkeyflower under Federal Register (76 FR 61826) a 90-day presence of the species in suitable but the Act may be warranted. This finding that the petition presented unsurveyed portions of the range, the document constitutes our 12-month substantial information indicating that snail’s distribution across a large area finding on the September 30, 2011, listing the Puget Oregonian under the (redundancy), with ten highly resilient petition to list the Rocky Mountain Act may be warranted. This document populations in four different sub-basins monkeyflower under the Act. constitutes our 12-month finding on the (representation), indicates the species is Summary of Finding March 13, 2008, petition to list the likely to withstand catastrophic events Puget Oregonian under the Act. in one or more sub-basin. The Rocky Mountain monkeyflower, The resources that the Puget also known as the budding Summary of Finding Oregonian needs are likely to diminish monkeyflower, is a small, narrow The Puget Oregonian is a snail that in quantity and quality over time with endemic plant found in north-central inhabits moist, conifer-forest habitats future increases in environmental Colorado. Uniquely, this plant exhibits that include some level of deciduous stressors including the effects of climate an asexual reproduction strategy not tree community composition. The change, human population growth in seen within the Mimulus genus or in species is most commonly located in the Pacific Northwest, forest any other Holarctic species; the plant stands with bigleaf maple (Acer management, and bigleaf maple dieback produces propagules which contain macrophyllum) that occur along stream disease. If suitable habitat diminishes as ‘‘bulbils,’’ which have all of the and river terraces or other habitats with expected, we would anticipate a components needed to develop into a a flat or gentle slope. Within that corresponding decline in the resiliency, new plant, including a shoot axis and landscape, the species’ habitat niche is redundancy, and representation of the rudimentary leaves and roots. The near or under bigleaf maple crowns and species. However, the Puget Oregonian’s Rocky Mountain monkeyflower in, or under, hardwood logs and other current distribution in at least 15 sites occupies approximately 60 acres (24.28 woody material, leaf litter, moist talus, across at least four different sub-basins hectares) on State or Federal lands and the lowest fronds of western will support its ability to maintain managed by the U.S. Forest Service, the swordfern (Polystichum munitum). The resiliency into the mid-21st century. National Park Service, and Colorado

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Parks and Wildlife in Boulder, Clear which minimizes many threats such the Act. We will address our finding for Creek, Grand, Jefferson, and Larimer that there are no stressors currently the Mt. Rainier white-tailed ptarmigan Counties in Colorado. Currently, we providing species-level impacts. In the in a future determination. know of 24 occurrences of the Rocky future, while we may lose some small Summary of Finding Mountain monkeyflower that constitute Rocky Mountain monkeyflower 19 populations; surveyors have populations, we project that each The southern white-tailed ptarmigan observed over 14 million ramets (ramets analysis unit will likely remain is a small bird that lives in high- are individuals that result from asexual occupied. Moreover, in all projected elevation, alpine ecosystems in reproduction and thus may be future scenarios, the three populations Colorado, northern New Mexico, and genetically identical). containing over 90 percent of historically in the Snowy Range of The Rocky Mountain monkeyflower monkeyflower ramets will be in good or southern Wyoming. Alpine ecosystems inhabits montane to subalpine habitats moderate condition. Furthermore, the are characterized by high winds, cold at elevations of 2,400 to 3,400 meters plant’s asexual reproduction strategy temperatures, short growing seasons, (7,874 to 11,154 feet) and is found under confers, and likely would continue to low atmospheric oxygen concentrations, overhangs of south-facing cliffs or confer, additional resiliency because and intense solar radiation. The boulders. Little information exists about this less energy-intensive method of southern white-tailed ptarmigan is one the ecological factors that affect growth reproduction allows the species to of five subspecies of white-tailed and establishment of the Rocky reproduce in relatively harsh ptarmigan in the Phasianidae family, Mountain monkeyflower in the wild. conditions. Thus, based on our analysis, subfamily Tetraoninae, which includes The survival of propagules is strongly we anticipate that the Rocky Mountain the grouse, or ground-feeding game influenced by moisture, temperature, monkeyflower will continue to have birds. So named for its perpetually and substrate type. A number of multiple, resilient populations white tail feathers, the southern white- patterns are apparent in the few distributed across its narrow range, tailed ptarmigan changes its plumage available studies on habitat parameters; providing for limited but sufficient seasonally to match the coloration and all of the previous studies and species redundancy and representation patterns of its alpine habitats, from descriptions suggest that periods of very necessary to withstand catastrophic white in winter to brown in the moist or saturated soil are important, events and adapt to environmental summer, effectively camouflaging the but it appears that too much water can change into the future. birds against snow and alpine rocks and be problematic for this species. The Therefore, we find that listing the vegetation. In addition to cryptic optimal hydrological conditions are Rocky Mountain monkeyflower as an coloration, the southern white-tailed sites that are periodically saturated or, endangered species or threatened ptarmigan displays other adaptations to at most, consistently moist with no long species under the Act is not warranted. the temperature, precipitation, wind, periods of standing water. Similarly, A detailed discussion of the basis for and snow cover extremes of its alpine successful sites have very shallow soil, this finding can be found in the Rocky habitats. For example, heavily feathered typically fewer than two centimeters Mountain monkeyflower species feet support the southern white-tailed deep. assessment and other supporting ptarmigan like snowshoes as they walk We have carefully assessed the best across the snow, and the subspecies documents (see ADDRESSES, above). scientific and commercial information feeds almost exclusively on willow buds available regarding the past, present, Southern White-Tailed Ptarmigan during the winter when other food and future threats to the Rocky Previous Federal Actions sources are scarce. Mountain monkeyflower, and we Nearly all suitable habitat for the evaluated all relevant stressors under On August 24, 2010, we received a southern-white tailed ptarmigan occurs the five listing factors, including any petition from CBD requesting that we on lands managed by Federal land regulatory mechanisms and list either the U.S. population or the management agencies, with over 85 conservation measures addressing these Rocky Mountain population of the percent managed by the U.S. Forest stressors. We identified climate change white-tailed ptarmigan as threatened or Service, over 5 percent managed by the as the primary stressor affecting the endangered distinct population National Park Service, and 4.5 percent Rocky Mountain monkeyflower’s segments (DPSs) and that we designate managed by the Bureau of Land biological status. Currently, the Rocky critical habitat. Following our Management. Approximately 6 percent Mountain monkeyflower has multiple, correspondence with the petitioner of suitable habitat is located on resilient populations distributed across regarding the accepted taxonomy of the privately owned land. The distribution its range, encompassing various white-tailed ptarmigan and our DPS of southern white-tailed ptarmigan is ecological conditions and some genetic policy, the petitioner revised the largely unchanged from historical levels variation. While the Rocky Mountain petition on September 1, 2011. The in Colorado and New Mexico, but a lack monkeyflower is a narrow endemic revised petition requested that we list of recent observations indicates that the plant with low population sizes and a the southern white-tailed ptarmigan (L. subspecies is presumed extirpated from limited range, this limitation does not l. altipetens) and the Mt. Rainier white- the Snowy Range in southern Wyoming. seem to be currently compromising the tailed ptarmigan (L. l. rainierensis) as We determined that individual species’ resiliency, redundancy, and threatened subspecies. On June 5, 2012, southern white-tailed ptarmigan have representation, given the relatively large we published in the Federal Register specific habitat needs to breed, feed, numbers of ramets in multiple (77 FR 33143) a 90-day finding that the and shelter, including suitable winter populations, the low risk of inbreeding petition presented substantial snow conditions, available late-lying depression due to the plant’s asexual information that listing may be snowfields, summer precipitation and reproduction, good or moderate warranted for the southern white-tailed monsoonal moisture, brood-rearing hydrological conditions in most ptarmigan and the Mt. Rainier white- habitat, and willows. We also populations, and relatively high levels tailed ptarmigan. This document determined that populations of southern of genetic diversity for an asexual constitutes the 12-month finding on the white-tailed ptarmigan need external species. The species is only known to September 1, 2011, petition to list the recruitment of immigrants, breeding occur on Federal and State public lands, southern white-tailed ptarmigan under dispersal, adult female survival, and

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population growth in order to be to changes in climate, with a minor Summary of Finding resilient. Demographic connectivity reduction in redundancy and The tidewater amphipod is a small, between populations is critical for representation if the analytical unit in subterranean, shallow groundwater resiliency, as it allows for genetic New Mexico declines from very low crustacean. Compared to similar exchange, dispersal, and external resiliency to an extirpated condition. amphipods, the tidewater amphipod is recruitment. The subspecies needs a However, at least 17 resilient analytical relatively large, with males reaching sufficient number and distribution of units are projected to remain distributed lengths of 9.7 millimeters (mm) (0.38 resilient populations to withstand the across Colorado in the future, so the inches (in)) and females 8.2 mm (0.32 annual variation in its environment, subspecies maintains enough resiliency, in). The species’ entire known current catastrophes, and novel biological and redundancy, and representation to distribution occurs within five counties physical changes in its environment. withstand stochastic and catastrophic in Maryland and seven counties in We have carefully assessed the best events and to adapt to changing Virginia spanning a distance of 180 scientific and commercial information conditions. Therefore, we consider the miles (289 kilometers) of the Coastal available regarding the past, present, future risk of extinction to also be low. Plain physiographic region. and future threats to the southern white- We find that listing the southern Contemporary collections of tidewater tailed ptarmigan, and we evaluated all white-tailed ptarmigan as an relevant factors under the five listing amphipods have typically been made endangered subspecies or a threatened during the winter and spring months factors, including any regulatory subspecies under the Act is not mechanisms and conservation measures when individuals can be found in warranted. A detailed discussion of the seepage springs, tile drains, and shallow addressing these stressors. Potential basis for this finding can be found in the stressors to the southern white-tailed wells. southern white-tailed ptarmigan species Specific diet, water quality and ptarmigan include predation, mining assessment and other supporting quantity tolerances, and behavioral and and related poisoning due to toxic documents (see ADDRESSES, above). concentrations of trace metals, hunting, reproductive traits of tidewater recreation, livestock and native ungulate Tidewater Amphipod amphipod are unknown. However, based on the general principles of grazing, and the effects of global climate Previous Federal Actions change. Through our analysis, we found conservation biology, information about that only climate change may affect We identified the tidewater amphipod other groundwater amphipod species, southern white-tailed ptarmigan as a Category 2 candidate species for and local information from the areas populations due to increases in listing in a May 22, 1984, notice of where tidewater amphipods have been minimum and maximum temperatures; review (49 FR 21664). Category 2 observed, we infer that individuals need changes in snow quantity, quality, candidate species were taxa for which shallow water habitats with sufficient extent, and duration; shifts in plant the Service had information indicating space to breed and shelter; sufficient phenology; advancement of treeline, that proposing to list the species as water quality for breeding and and expansion of willow into alpine endangered or threatened was possibly sheltering; forest cover, which provides areas; and changes in the amount and appropriate, but for which conclusive a buffer for water quality and quantity, timing of seasonal precipitation. data on biological vulnerability and and provides food; and a clay or Although the other stressors may affect threats were not at that time available to confining layer or pore space to help individuals or local areas, they do not support proposed rules. The tidewater support feeding and sheltering when affect resiliency, redundancy, or amphipod remained designated as a water quantities are low. representation, alone or cumulatively, Category 2 candidate species in We have carefully assessed the best currently or into the future for the subsequent candidate notices of review scientific and commercial information southern white-tailed ptarmigan. (54 FR 554, January 6, 1989; 56 FR available regarding the past, present, Currently, 14 out of 19 analytical 58804, November 21, 1991; 59 FR and future threats to the tidewater units (a scale of analysis similar to 58982, November 15, 1994). In the amphipod, and we evaluated all populations) have high resiliency, 3 February 28, 1996, notice (61 FR 7596), relevant factors under the five listing have medium resiliency, 1 in New we discontinued the designation of factors, including any regulatory Mexico has very low resiliency, and the Category 2 species as candidates, which mechanisms and conservation measures Snowy Range analytical unit in removed the tidewater amphipod from addressing these stressors. The primary Wyoming is presumed extirpated. Other our candidate list. stressors affecting the tidewater than local declines in New Mexico and On April 20, 2010, we received a amphipod’s biological status include the presumed extirpation in the Snowy petition from CBD, Alabama Rivers reduced groundwater quality and Range, the southern white-tailed Alliance, Clinch Coalition, Dogwood quantity, and we identified ptarmigan currently occupies nearly all Alliance, Gulf Restoration Network, development (i.e., impervious surfaces) of its historical range, and the Tennessee Forests Council, and West as a primary source of changes to both. subspecies has sufficient resiliency, Virginia Highlands to list 404 aquatic, In response to degraded water quality, redundancy, and representation to riparian, and wetland species, including we conclude there could be decreased withstand stochastic and catastrophic the tidewater amphipod, as endangered fitness and declines in the tidewater events and to adapt to environmental or threatened species under the Act. On amphipod’s resiliency caused by changes. Therefore, given the current September 27, 2011, we published in changes in biodiversity within its levels of resiliency distributed across the Federal Register (76 FR 59836) a 90- habitats. In response to the greater threat Colorado, the lack of significant day finding in which we announced of reduced water quantity, there is stressors, and the life-history that the petition contained substantial evidence that the tidewater amphipod characteristics of the subspecies that information indicating listing may be can burrow deeper underground for make it uniquely adapted to the warranted for the species. This periods of time and reemerge when environmental extremes of its alpine document constitutes our 12-month sufficient water levels return. While habitats, we conclude that the current finding on the April 20, 2010, petition representation is assumed to have risk of extinction is low. In the future, to list the tidewater amphipod under the decreased when compared to historical we project reductions in resiliency, due Act. conditions, it appears the species has

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sustained multiple populations across Summary of Finding Forest Guardians (now WildEarth much of its historical range and through The tufted puffin is a widely Guardians) requesting that the Service: multiple stochastic events such as distributed pelagic seabird found in the (1) Consider all full species in our drought. Considering the future North Pacific Ocean. The tufted puffin Mountain Prairie Region ranked as G1 scenarios, the majority of populations is a burrow-nester that commonly nests or G1G2 by the organization do not appear to be at high risk of colonially on offshore islands. Tufted NatureServe, except those that are development, and the impact to the puffins nest along the coasts of currently listed, proposed for listing, or species caused by impervious surfaces California, Oregon, Washington, and candidates for listing; and (2) list each is not projected to increase Alaska in the United States, and in species as either endangered or substantially. Thus, the primary threats Canada (British Columbia), Russia, and threatened. This petition included the appear to have low imminence and Japan. The majority of tufted puffins (82 Hamlin Valley pyrg, longitudinal gland magnitude such that they are not percent) nest in North America, pyrg, and sub-globose snake pyrg. On providing species-level impacts to the primarily Alaska; Russia has the second February 27, 2009, we received another tidewater amphipod. We evaluated largest concentration of nesting tufted petition dated February 17, 2009, from numerous other factors (e.g., climate puffins (18 percent). Colony size is the CBD, Tierra Curry, Noah Greenwald, change, effects of small population size, variable, ranging from just a few birds Dr. James Deacon, Don Duff, and the Freshwater Mollusk Conservation collection, predation, disease, to large colonies of greater than 100,000 Society, requesting that we list 42 recreation, forest management, and tufted puffins. species of Great Basin springsnails in other conservation efforts) and We have carefully assessed the best Nevada, Utah, and California, including determined that they had little to no scientific and commercial information available regarding the past, present, the Hamlin Valley pyrg, longitudinal measurable impact on the species. The gland pyrg, and sub-globose snake pyrg, species status assessment report and future threats to the tufted puffin, and we evaluated all relevant factors as endangered or threatened, and describes many uncertainties in the designating critical habitat under the species’ occurrence, populations, and under the five listing factors, including any regulatory mechanisms and Act. On August 18, 2009, we published response to threats, but, considering the conservation measures addressing these in the Federal Register (74 FR 41649) a available data, the risk of extinction is stressors. We determined that the most 90-day finding in which we announced low. significant threats impacting the tufted that the petitions contained substantial Therefore, we find that listing the puffin and its habitat are changing information indicating listing these tidewater amphipod as an endangered climate conditions, oil spills, fisheries three species may be warranted. This species or threatened species under the bycatch, mammalian and avian document constitutes the 12-month Act is not warranted. A detailed predators, nonnative plants and finding on the July 30, 2007, and discussion of the basis for this finding animals, and human disturbance. The February 17, 2009, petitions to list the can be found in the tidewater amphipod most significant of these threats to Hamlin Valley pyrg, longitudinal gland species assessment and other supporting potentially impact the resource needs of pyrg, and sub-globose snake pyrg under documents (see ADDRESSES, above). tufted puffins are climate change and oil the Act. spills. Currently, the best available Summary of Finding Tufted Puffin information for tufted puffins indicates The three springsnail species are in Previous Federal Actions adequate redundancy and the genus Pyrgulopsis of the representation across the species’ range, On February 14, 2014, we received a Hydrobiidae family. In general, the three including robust populations across the species are morphologically similar petition from the Natural Resources majority of its range. The species with hardened shells and soft anatomy, Defense Council (NRDC) to list the continues to occur throughout its and they are differentiated based on contiguous U.S. DPS of tufted puffin as historical range. While the tufted subtle morphological characteristics. an endangered or threatened species puffin’s range will likely continue to The Hamlin Valley pyrg occurs only in under the Act. Alternatively, the NRDC contract in the south due to climate the White Rock Cabin Springs province stated that we should list the tufted change, models predict the species will in Hamlin Valley, straddling the Utah puffin species (i.e., the entire continue to remain widely distributed and Nevada State line. The Utah portion population(s) across its known range) throughout most of its historical range. of the spring province is all on private and apply this alternative if we found The tufted puffin is expected to land, while the Nevada portion is the contiguous U.S. population of the maintain resilient colonies throughout a entirely within the White Rock Range species did not meet our DPS policy. On large proportion of its range, including Wilderness Area managed by the Bureau September 18, 2015, we published in likely continued representation across of Land Management (BLM). The the Federal Register (80 FR 56423) a 90- most of its range. longitudinal gland pyrg occurs on day finding in which we announced Therefore, we find that listing the private land at three springs or spring that the petition contained substantial contiguous U.S. DPS of tufted puffin or provinces (Big Springs province, information indicating listing may be the tufted puffin species as endangered Stateline Springs province, and Clay warranted for the contiguous U.S. DPS or threatened is not warranted. A Spring) in the Snake Valley area of of tufted puffin in the States of detailed discussion of the basis for this White Pine County, Nevada, and Washington, Oregon, and California. finding can be found in the tufted puffin Millard County, Utah. The sub-globose The 90-day finding neglected to make a species assessment and other supporting snake pyrg occurs only in Utah at Gandy determination specific to the NRDC’s documents (see ADDRESSES, above). Warm Springs in Snake Valley, alternative listing request. This Hamlin Valley Pyrg, Longitudinal Gland contained entirely within the Gandy document constitutes our 12-month Pyrg, Sub-Globose Snake Pyrg Mountain Caves Area of Critical finding on the February 14, 2014, Environmental Concern managed by the petition to list the tufted puffin Previous Federal Actions BLM. (addressing both petitioned entities) On July 30, 2007, we received a All three springsnails are very small under the Act. petition (dated July 24, 2007) from in size, only a few millimeters in length

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and width, and have limited ability or sufficient water quality, adequate system still have high numbers of snails tendency to move. These species are substrate and vegetation, free-flowing and a low probability of armored catfish herbivores or detritivores that primarily water, and adequate spring discharge. invasion. The BLM, Utah Division of graze on the periphyton (freshwater Additionally, we consider the future Wildlife Resources, and the Service organisms attached or clinging to plants) risk of catastrophic or stochastic events entered into the Conservation of exposed surfaces of aquatic plants affecting this species or its habitat to be Agreement and Strategy for the Sub- and substrates in the small springs they low. globose Snake Pyrg (Agreement) in inhabit. We determined the following The longitudinal gland pyrg currently 2020. We evaluated the certainty that spring conditions are most critical in occurs in three locations with 13 the conservation measures in the influencing the physical and biological occupied springbrooks in high overall Agreement will be implemented and needs of springsnails: Sufficient water resiliency condition, 5 springbrooks in effective in our Policy for the Evaluation quality, adequate substrate and moderate condition, and only 1 of Conservation Efforts (PECE) analysis. vegetation, free-flowing water, and springbrook in low condition. Using the criteria specified in PECE (68 Resiliency is high in most springbrooks adequate spring discharge. When each FR 15100, March 28. 2003), we have due to high abundance despite some of these physical and biological needs is determined that all of the PECE criteria environmental stressors. Competition present and functioning within a spring, have been satisfied. We find that the stable populations of springsnails are and predation, spring modification, and 2020 CAS has a high level of certainty expected. vegetation and soil disturbance from We have carefully assessed the best grazing and roads are the only historical for future implementation and certainty scientific and commercial information and current stressors. Because most of the effectiveness. Nonnative fish available regarding the past, present, populations exhibit high resilience removal efforts under the strategy have and future threats to the springsnails, despite the co-occurrence of stressors, already begun to reduce armored catfish and we evaluated all relevant factors we concluded that the stressors have a numbers in Gandy Warm Springs. under the five listing factors, including low to moderate effect on the Current redundancy and representation any regulatory mechanisms and longitudinal gland pyrg. Current are limited due to the narrow range of conservation measures addressing these abundance, range, and effects of the species and its single population, stressors. Historically and through the stressors make it unlikely there would but this is likely similar to historical present, the three springsnail species be a loss in redundancy or conditions. Therefore, we conclude that and their habitats were impacted to representation, and we expect the the current risk of extinction is low. Our varying degrees by predation and redundancy and representation to be assessment of the future status of this competition, vegetation and soil adequate. Therefore, we conclude that species takes into consideration the disturbance, water pollution, spring the current risk of extinction is low. In Agreement, which includes the modification, and groundwater the future, we project that the continuation of conservation actions to pumping. However, we determined the longitudinal gland pyrg will continue to eliminate nonnative fish from Gandy most important stressors likely to have populations with high resiliency Warm Springs and prevent future impact future conditions of the three due to predicted high abundance invasion, thereby addressing this threat species include groundwater pumping despite the future effects of to the species. Future resiliency is and withdrawals, altered precipitation environmental stressors and because expected to increase due to the removal and temperature, and, in the case of the groundwater pumping is unlikely to of nonnative fish in accordance with the sub-globose snake pyrg, nonnative fish occur in the foreseeable future. Agreement, the fact that groundwater competition. Redundancy and representation are pumping is unlikely, and the species’ The Hamlin Valley pyrg occurs in one projected to continue to be adequate in past ability to sustain itself despite other population with 10 of 11 occupied the future with three occupied spring environmental stressors. Redundancy springbrooks in high overall resiliency systems with multiple occupied and representation are projected to condition and one springbrook in springbrooks. In the future, we expect continue to be limited in the future due moderate condition; resiliency is high in the species’ habitat to continue to to the species’ narrow range and its all but one springbrook due to high provide for the needs of sufficient water single population, but this is likely abundance despite some environmental quality, adequate substrate and similar to historical conditions. In the stressors. Redundancy and vegetation, free-flowing water, and future, we expect the species’ habitat to representation are limited due to the adequate spring discharge. Additionally, continue to provide for the needs of species’ narrow range and its single we consider the future risk of sufficient water quality, adequate population; however, this is likely catastrophic or stochastic events substrate and vegetation, free-flowing similar to historical conditions. affecting this species or its habitat to be water, and adequate spring discharge. Therefore, we conclude that the current low. Additionally, we consider the future risk of extinction is low. In the future, The sub-globose snake pyrg currently risk of catastrophic or stochastic events we project the Hamlin Valley pyrg occurs in one spring system with affecting the sub-globose snake pyrg or population to have high resiliency due multiple springbrooks in the upper its habitat to be low. to predicted high abundance and reaches of the spring system in protection of the water source from moderate resiliency condition. The Therefore, we find that listing the pumping due to wilderness designation spring system is a warm water system Hamlin Valley pyrg, longitudinal gland of groundwater areas upslope of the with temperatures greater than 25 pyrg, and sub-globose snake pyrg as spring province. Redundancy and degrees Celsius (77 degrees Fahrenheit). endangered species or threatened representation are projected to continue The population appears to be resilient to species under the Act is not warranted. to be limited due to the species’ narrow environmental stressors; however, A detailed discussion of the basis for range and only one population, but this numbers of snails are down overall due this finding can be found in the Hamlin is likely similar to historical conditions to the recent invasion of armored catfish Valley pyrg, longitudinal gland pyrg, for this narrow endemic species. In the into the lower reaches of the system, and sub-globose snake pyrg species future, we expect the species’ habitat to which is the only current threat to the assessment and other supporting continue to provide for the needs of species. The upper reaches of the documents (see ADDRESSES, above).

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Johnson Springs Wetland Complex separate from other relict dace the Blue Lakes, but still occurs in Clear Population of Relict Dace populations, we find no evidence that and Thurston Lakes throughout the these measures of genetic divergence year. In the spring, reproductive adults Previous Federal Actions result in marked differences in the migrate into tributary streams to spawn On June 27, 2014, we received a JSWC population segment’s genetic and then migrate back to the lakes after petition from Forest Service Employees characteristics. Therefore, the JSWC spawning. It is unclear whether for Environmental Ethics, requesting relict dace population is not a listable Lampson Pond still exists; therefore, the that the Johnson Springs Wetland entity under the Act. Because the JSWC status of the Clear Lake hitch in Complex Population (JSWC) population population of relict dace is not a listable Lampson Pond is unknown. of relict dace be listed as an endangered entity, we did not perform a status For most of the year, Clear Lake hitch DPS under the Act. On April 10, 2015, assessment under the five factors as are only found within their lacustrine we published a 90-day finding (80 FR required under section 4(a) of the Act. (lake) environment. However, between 19259) that the petition presented This finding constitutes our completion February and May, a portion of the substantial information indicating that of our review of the petitioned action. overall reproductive population begins listing the JSWC population of relict A detailed discussion of the basis for to migrate into the surrounding dace may be warranted and that we this finding can be found in the JSWC tributaries to spawn. Spawning were initiating a status review. This population of relict dace species activities include one to five males document constitutes our 12-month assessment and other supporting pursuing a gravid female to fertilize her finding on the June 27, 2014 petition to documents (see ADDRESSES, above). freshly extruded eggs, which are list the JSWC population of relict dace deposited on fine to medium sized under the Act. Clear Lake Hitch gravel within the tributary stream. Summary of Finding Previous Federal Actions Fertilized eggs develop and hatch within 7 to 10 days, fry are free- The relict dace is a small fish in the We received a petition from the swimming after another 7 to 10 days, Cyprinidae family that was first Center for Biological Diversity on and young migrate to the lake at about described in 1972 (Hubbs and Miller September 25, 2012 (CBD 2012, entire), a month old before the streams dry up. 1972, pp. 101–102). It is found in spring to list the Clear Lake hitch as threatened Juvenile hitch are found within the systems in five isolated valleys in the or endangered under the Act. The nearshore habitat of the lake where they northeastern corner of Nevada; these Service issued a 90-day finding on April depend on submerged aquatic valleys are estimated to have been 10, 2015 (80 FR 19259), stating the vegetation for cover and prey. Juvenile separated for hundreds of thousands of petition presented substantial hitch move from the nearshore portion years. Four of these valleys contain information that listing the Clear Lake of the lake into open water in early-to native populations, including the JSWC, hitch may be warranted and that we late-fall. There is evidence that Clear and one includes only introduced were initiating a status review. This Lake hitch do not require tributary populations. document constitutes the 12-month streams with gravel to spawn, but can Waterbodies occupied by the species finding on the September 25, 2012, also spawn successfully in different include springs, spring pools, and petition to list the Clear Lake hitch. portions of the lake (i.e., along the shore, spring outflows; wetlands; natural and Summary of Finding the mouths of tributaries, and Rodman human-modified channels; ditches; Slough) that lack a gravel substrate. ephemeral reservoirs; and creeks. The The Clear Lake hitch (hitch) (Lavinia We have carefully assessed the best relict dace feeds on aquatic exilicauda chi) is a large cyprinid scientific and commercial information invertebrates, including mayfly and (freshwater minnow) that is endemic to available regarding the past, present, damselfly nymphs; they consume the Clear Lake watershed in Lake and future threats to the Clear Lake relatively little plant material County, California. Historically, the hitch, and we evaluated all relevant (Carmichael 1983, p. 88). Little is Clear Lake hitch occurred in several factors under the five listing factors, known about relict dace breeding or lakes and ponds found throughout the including any regulatory mechanisms behavior; however, the species is Clear Lake watershed, including: Clear and conservation measures addressing considered secretive (NDOW 2007, p. 4). Lake, Thurston Lake, Upper Blue Lake, these stressors. The primary stressors We have carefully assessed the best Lower Blue Lake, and Lampson Pond. affecting the Clear Lake hitch’s scientific and commercial information During the spring, Clear Lake hitch were biological status include habitat available regarding whether the JSWC also found in the numerous tributaries degradation, predation and competition, population of relict dace qualifies as a to these larger water bodies, including: drought and climate change. Based on DPS. Based on our thorough review, we Kelsey, Scott, Middle, Adobe, Seigler our examination of the best available find that the JSWC population of relict Canyon, Manning, Cole, Morrison, and scientific information, we have dace meets our criteria for discreteness Schindler Creeks. All of the determined that habitat degradation, under our February 7, 1996 DPS policy waterbodies, listed above, with the predation and competition, drought and (61 FR 4722); however, it does not meet exception of Thurston Lake, were climate change are not likely to the criteria for significance based on the hydrologically connected to each other adversely affect the overall viability of four criteria outlined in the DPS policy. in the past, and it appears that Thurston the Clear Lake hitch in a biologically The JSWC population of relict dace does Lake and its tributary, Thurston Creek, meaningful way to such an extent that not occur in a unique or unusual setting have always been isolated from the the species is in danger of extinction or for relict dace, does not show evidence other waterways. Local opinion is that likely to become so in the foreseeable that loss of the discrete population hitch were introduced into Thurston future throughout all or a significant segment would result in a significant Lake by a local resident less than 50 portion of its range for the following gap in the range of relict dace, and does years ago. The Clear Lake hitch is reasons: (1) The Clear Lake hitch has a not represent the only surviving native restricted to the Clear Lake watershed in long life span, (2) the Clear Lake hitch occurrence of relict dace. While genetic Lake County, California, in the central are highly fecund, and (3) the Clear Lake discontinuity demonstrates the JSWC Coast Range Mountains. Currently, the hitch has shown the ability to use population segment is markedly hitch is thought to be extirpated from different spawning strategies, which

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demonstrates its behavioral flexibility to Authors FOR FURTHER INFORMATION CONTACT: Kurt variable environmental conditions. The primary authors of this document Iverson, 907–586–7210. Additionally, regulatory mechanisms are the staff members of the Species SUPPLEMENTARY INFORMATION: such as the California Endangered Assessment Team, Ecological Services Authority for Action Species Act (CESA) and local Program. ordinances are currently acting to NMFS manages the groundfish ameliorate the severity of some existing Authority fisheries in the U.S. exclusive economic threats, such as the take of individuals, The authority for this action is section zone (EEZ) of the Bering Sea and degradation of tributary streams, and 4 of the Endangered Species Act of Aleutian Islands (BSAI) under the loss of wetland habitat surrounding 1973, as amended (16 U.S.C. 1531 et Fishery Management Plan for Clear Lake. Furthermore, the SSA seq.). Groundfish of the BSAI Management presented three plausible future Area (FMP). The Council prepared, and Aurelia Skipwith, scenarios, which included various states NMFS approved, the FMP under the Director, U.S. Fish and Wildlife Service. of potential future conditions for the authority of the Magnuson-Stevens species. Our analysis of these scenarios [FR Doc. 2020–26139 Filed 12–2–20; 8:45 am] Fishery Conservation and Management indicates that the Clear Lake hitch will BILLING CODE 4333–15–P Act (MSA), 16 U.S.C. 1801 et seq. maintain its current resiliency, Regulations governing U.S. fisheries and implementing the FMP appear at 50 representation, or redundancy, or DEPARTMENT OF COMMERCE undergo only a slight decrease in CFR part 679. General regulations that pertain to U.S. fisheries appear at condition into the foreseeable future. National Oceanic and Atmospheric Even under a projection of a slight subpart H of 50 CFR part 600. Administration NMFS published the proposed rule decrease in future condition, the Clear for these regulatory amendments in the Lake hitch was not projected to be in 50 CFR Part 679 Federal Register on September 18, 2020 danger of extinction in the next 50 [Docket No. 201125–0321] (85 FR 58322). A summary of comments years. on the proposed rule and NMFS’ Therefore, we find that listing the RIN 0648–BJ59 responses are provided in the Clear Lake hitch as an endangered or Fisheries of the Exclusive Economic Comments and Responses section of this threatened species under the Act is not Zone Off Alaska; Pacific Cod in the preamble. warranted at this time. A detailed Bering Sea and Aleutian Islands Summary of This Action discussion of the basis for this finding can be found in the Clear Lake hitch AGENCY: National Marine Fisheries In this rule, NMFS modifies Federal species assessment form and other Service (NMFS), National Oceanic and permit conditions and imposes supporting documents (see ADDRESSES, Atmospheric Administration (NOAA), participation requirements for certain above). Commerce. federally permitted vessels when fishing ACTION: Final rule. for Pacific cod in State of Alaska waters New Information (state waters) adjacent to the Exclusive SUMMARY: This final rule modifies Economic Zone (EEZ) of the Bering Sea We request that you submit any new Federal permit conditions and imposes and Aleutian Islands (BSAI). The state information concerning the taxonomy participation requirements for certain waters portion of the Pacific cod fishery of, biology of, ecology of, status of, or federally permitted vessels when fishing that runs concurrent with the Federal stressors to the Doll’s daisy, Puget for Pacific cod in state waters adjacent Pacific cod fishery is commonly known Oregonian, Rocky Mountain to the exclusive economic zone of the as the State’s parallel fishery. monkeyflower, southern white-tailed Bering Sea and Aleutian Islands during Throughout this preamble, ‘‘state ptarmigan, tidewater amphipod, tufted the State of Alaska’s parallel Pacific cod waters’’ refers to the maritime waters puffin, Hamlin Valley pyrg, longitudinal fishery. This action is necessary to from 0 to 3 nautical miles off Alaska, gland pyrg, sub-globose snake pyrg, the enhance Federal conservation, and ‘‘EEZ’’ and ‘‘Federal waters’’ are Johnson Springs Wetland Complex management, and catch accounting used interchangeably and refer to the population of relict dace, or Clear Lake measures previously adopted by the maritime waters from 3 to 200 nautical hitch to the appropriate person, as North Pacific Fishery Management miles off Alaska. In addition, ‘‘parallel specified under FOR FURTHER Council (Council) regarding license fisheries’’ in this preamble refers to the INFORMATION CONTACT, whenever it limitation, sector allocations, and catch state waters Pacific cod parallel fisheries becomes available. New information reporting. This action is intended to in the State of Alaska Bering Sea- will help us monitor these species and promote the goals and objectives of the Aleutian Islands Area, which presently make appropriate decisions about their Magnuson-Stevens Fishery is in the Dutch Harbor Subdistrict of the conservation and status. We encourage Conservation and Management Act, the Bering Sea and within the Aleutian local agencies and stakeholders to Fishery Management Plan for Islands Subdistrict of the Aleutian continue cooperative monitoring and Groundfish of the Bering Sea and Islands, respectively. conservation efforts. Aleutian Islands Management Area, and This rule prohibits (1) a hook-and- other applicable law. References Cited line, pot, or trawl gear vessel named on DATES: Effective January 4, 2021. a Federal Fisheries Permit (FFP) or A list of the references cited in this ADDRESSES: Electronic copies of the License Limitation Program (LLP) petition finding is available on the Categorical Exclusion and the license from being used to catch and internet at http://www.regulations.gov Regulatory Impact Review (RIR) retain BSAI Pacific cod in State of in the appropriate docket provided prepared for this action (referred to as Alaska (State) waters adjacent to the above in ADDRESSES and upon request the ‘‘Analysis’’) are available from BSAI during the State’s parallel Pacific from the appropriate person, as http://www.regulations.gov or from the cod fishery unless the vessel is named specified under FOR FURTHER NMFS Alaska Region website at https:// on an FFP and LLP license that have the INFORMATION CONTACT. www/fisheries.noaa.gov/region/alaska. required endorsements; (2) a hook-and-

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line, pot, or trawl gear vessel named on vessels that harvest and deliver the fish The portion that remains after an FFP or LLP license from catching and for processing, or as catcher processors subtraction of the CDQ allocation from retaining Pacific cod in state waters that harvest and process the catch on each TAC is the initial TAC (ITAC) for adjacent to the BSAI EEZ during the board. The amount of BSAI Pacific cod the Bering Sea and Aleutian Islands. State’s parallel fishery when NMFS has available for commercial harvest is NMFS combines the Bering Sea ITAC closed the EEZ to directed fishing for determined through an annual harvest and the Aleutian Islands ITAC into one, Pacific cod by the sector to which the specifications process (e.g., 83 FR BSAI non-CDQ Pacific cod TAC. This vessel belongs; (3) the holder of an FFP 13553, March 9, 2020). This process combined BSAI non-CDQ Pacific cod with certain endorsements from accounts for Pacific cod harvested in TAC is then allocated among, and modifying those endorsements during guideline harvest level (GHL) fisheries available for harvest by, nine non-CDQ the effective period of the FFP; and (4) that occur only within state waters and fishery sectors. Regulations at the reissuance of a surrendered FFP are managed by the State of Alaska. § 679.20(a)(7)(ii)(A) define the nine non- with certain endorsements for the After deducting for harvests in the GHL CDQ fishery sectors and specify the remainder of the three-year term, or fisheries, Pacific cod Total Allowable percentage of the BSAI non-CDQ Pacific cycle, of FFPs. Catches (TACs) are set for the Federal cod TAC allocated to each. The non- Summary of Management of the Fishery fisheries in the Bering Sea and Aleutian CDQ fishery sectors are defined by a Islands subareas. This section briefly describes the combination of gear type (e.g., trawl, Federal BSAI Pacific cod fishery, Once the Bering Sea and Aleutian hook-and-line), operation type (i.e., including the Pacific cod fisheries that Islands TACs are established, catcher vessel or catcher/processor), and occur in BSAI state waters. More regulations at § 679.20(a)(7)(i) allocate vessel size categories (e.g., vessels detailed descriptions, including a 10.7 percent of the Bering Sea Pacific greater than or equal to 60 feet (ft) in review of this rule and the rationale for cod TAC and 10.7 percent of the length overall or less than 60 ft in length the regulations, are provided in the Aleutian Islands Pacific cod TAC to the overall). Through the annual harvest preamble to the proposed rule (85 FR Community Development Quota (CDQ) specifications process, NMFS allocates 58322, September 18, 2020) and in the Program for exclusive harvest by an amount of the BSAI non-CDQ Pacific Analysis (see ADDRESSES). Western Alaska CDQ groups. Section cod TAC to each of the nine non-CDQ Vessels that harvest Pacific cod in the 305(i) of the MSA specifies the methods fishery sectors. The nine non-CDQ BSAI use both trawl and non-trawl gear. for allocating these harvest privileges. fishery sectors and the percentage of the Non-trawl gear includes hook-and-line, Once allocated, CDQ groups must BSAI non-CDQ Pacific cod TAC jig, and pot gear. Additionally, BSAI ensure that they do not exceed their allocated to each sector are shown in Pacific cod vessels operate as catcher allocations. Table 1 below.

TABLE 1—ALLOCATIONS OF THE BSAI NON-CDQ PACIFIC COD TAC TO THE NON-CDQ FISHERY SECTORS

Percentage allocation of Non-CDQ fishery sector the BSAI non-CDQ TAC

Hook-and-line catcher vessels greater than or equal to 60 ft length overall (LOA) ...... 0.2 Jig gear ...... 1.4 Pot catcher/processors ...... 1.5 Hook-and-line and pot catcher vessels less than 60 ft LOA ...... 2.0 American Fisheries Act (AFA) trawl catcher/processors ...... 2.3 Pot catcher vessels greater than or equal to 60 ft LOA ...... 8.4 Non-AFA trawl catcher/processors (Amendment 80 catcher/processors) ...... 13.4 Trawl catcher vessels ...... 22.1 Hook-and-line catcher processors ...... 48.7

NMFS manages each of the fishery allocates exclusive harvest privileges to Allocations of Pacific cod to the CDQ sectors to ensure harvest of Pacific cod participants within that sector that Program and to the non-CDQ fishery does not exceed the sector’s annual cannot be exceeded. For the other non- sectors are further apportioned by allocation. NMFS monitors harvests that CDQ fishery sectors, NMFS carefully season dates established at occur by vessels being used to conduct tracks both directed and incidental § 679.23(e)(5). In general, regulations directed fishing for Pacific cod (that is, catch of Pacific cod. An allocation to a apportion CDQ and non-CDQ fishery participants who are specifically non-CDQ fishery sector may be sector allocations among three seasons targeting and retaining Pacific cod above harvested in either the Bering Sea or the that correspond to the early (A-season), specific threshold levels) and harvests Aleutian Islands, subject to the Pacific middle (B-season), and late (C-season) that occur by vessels being used to cod ITAC specified for the Bering Sea or portions of the year. The specific season conduct directed fishing for other the Aleutian Islands. NMFS takes dates established for the CDQ Program species and incidentally catching appropriate management measures, and each of the non-CDQ fishery sectors Pacific cod (e.g., the incidental catch of such as closing directed fishing for a were provided in the final 2020 and Pacific cod in the directed pollock fishery sector, to ensure that total 2021 harvest specifications for fishery). Section 679.2 provides the directed fishing and incidental fishing groundfish of the BSAI (83 FR 13553, regulatory definition of ‘‘directed harvests do not exceed that sector’s March 9, 2020). Depending on the fishing.’’ For the non-AFA trawl allocation. Section 2.7 of the Analysis specific CDQ Program or non-CDQ catcher/processor sector, also known as describes NMFS’ management of the fishery sector allocation, between 40 the Amendment 80 sector, NMFS non-CDQ fishery sectors. percent and 70 percent of the Pacific

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cod allocations are apportioned to the The operators of harvesting vessels overall (MLOA) specified on the license, A-season, historically the most lucrative that possess an FFP are required to and any exemption from the MLOA fishing season due to the presence of comply with NMFS observer coverage specified on the license. Most vessel valuable roe in the fish and the good requirements (§ 679.50(a)). In addition, operators fishing for groundfish in the quality of the flesh during that time of FFP holders participating in a pollock, BSAI must have an LLP license on year. Atka mackerel, or Pacific cod fishery in board at all times when the vessel is The allocation of Pacific cod among the BSAI are required to have on board engaged in fishing activities (§ 679.4(k)). the CDQ Program and the nine non-CDQ the vessel a transmitting vessel LLP licenses are issued by NMFS to fishery sectors, as well as the seasonal monitoring system (VMS) qualified persons. Exemptions to the apportionment of those allocations, (§ 679.28(f)(6)). A VMS consists of a LLP license requirement in the BSAI are create a large number of distinct sector NMFS-approved transmitter that listed at § 679.4(k)(2), including an and season allocations. The regulations automatically determines a vessel’s exemption for any vessel that does not allow NMFS to reallocate (rollover) any position and transmits that information exceed 32 ft (9.8 m) length overall unused portion of a seasonal to NMFS. While Pacific cod directed (LOA), and an exemption for jig vessels apportionment from any non-CDQ fisheries are open, all harvesting vessels less than or equal to 60 ft (18.3 m) LOA fishery sector (except the jig sector) to with an FFP endorsed with a hook-and- that use a maximum of 5 jig machines, that sector’s next season during the line, pot, or trawl Pacific cod one line per jig machine, and a current fishing year, unless the Regional endorsement are required to have an maximum of 15 hooks per line. Administrator determines a non-CDQ operational VMS, regardless of where In order to participate in the BSAI fishery sector will not be able to harvest the vessel is fishing at the time or what Pacific cod fisheries, several its allocation (see § 679.20(a)(7)(iv)(B)). the vessel is targeting. Thus, a VMS is endorsements are required to be specified on an LLP license, such as Permits and Licenses required of all vessels with an FFP endorsed for Pacific cod hook-and-line, vessel operation type, area, gear To monitor compliance with harvest pot, or trawl gear while fishing in state designation, and maximum length catch limits, prohibited species (non- waters (0 to 3 nm) adjacent to the BSAI. overall (MLOA). The endorsements for retained) catch limits, and sideboard However, because these Federal operation type on LLP licenses are regulations that limit participation in requirements apply as a condition of either catcher vessel or catcher/ other fisheries, NMFS requires various being issued an FFP, operators of processor. A catcher vessel endorsement permits that authorize or restrict access vessels that have not been issued an FFP allows a vessel to harvest but not to the groundfish fisheries in the and that fish exclusively in state waters process fish on board. A catcher/ Federal waters of the BSAI. The two are not required to possess an FFP or processor endorsement allows both most relevant permits associated with have an FFP on board the vessel, and harvesting and onboard processing, and this final rule are FFPs and LLP such vessels are not subject to Federal also allows a vessel to deliver the catch licenses. observer, VMS, or recordkeeping and to a separate processor. Area 1. Federal Fisheries Permit reporting requirements unless specified endorsements on BSAI groundfish LLP by the State. licenses authorize a vessel to fish in All vessels that retain BSAI Pacific FFPs are valid for three years and, either the Bering Sea, the Aleutian cod in the EEZ are required to have an unless revoked, suspended, or Islands, or both areas. Gear FFP on board the vessel at all times surrendered, are in effect from the date endorsements for BSAI groundfish LLP (§ 679.4(b)(1)). An FFP authorizes a of issuance through the end of the three- licenses are either for trawl, non-trawl, vessel owner to deploy a vessel to year cycle. The current cycle of FFPs or both gear types. For groundfish conduct fishing operations in the EEZ of issued for vessels that operate in Alaska vessels with non-trawl endorsed the BSAI in accordance with the waters is January 1, 2018, through licenses, NMFS implemented endorsements on the FFP. An FFP December 31, 2020. A vessel operator regulations in 2002 that require a Pacific includes many endorsements, such as with an FFP can surrender the permit at cod endorsement for hook-and-line and type of gear (e.g., pot, hook-and-line, any time and have NMFS reissue the pot gear LLP licenses on catcher/ and trawl), vessel operation category FFP any number of times within the processor vessels and catcher vessels (catcher vessel, catcher/processor, three-year cycle. that are 60 ft (18.3 m) LOA or greater mothership, tender vessel, or support While any vessel owner can apply for and that are used to participate in the vessel), and regulatory area of operation an FFP with any combination of vessel BSAI Pacific cod fisheries (67 FR 18130, (e.g., BSAI) in which a permitted vessel operation, area, gear, or species April 15, 2002). Catcher vessels less is eligible to fish. In some fisheries, a endorsements, an FFP, by itself, does than 60 ft (18.3 m) are exempt from the species endorsement is also required. not necessarily authorize the FFP holder required Pacific cod endorsement on For example, the owners and operators or the vessel named on the FFP to their LLP license. of harvesting vessels that participate in participate in the Federal Pacific cod Groundfish LLP licenses also identify the directed BSAI Pacific cod fisheries, fisheries. Most of the vessels that are whether the license is associated with except vessels using jig gear, are used to participate in the Federal Pacific the Amendment 80, American Fisheries required to have an FFP endorsement cod fisheries in the BSAI are also are Act, or Gulf of Alaska Rockfish license for Pacific cod, along with required to have a groundfish LLP limitation programs. BSAI groundfish endorsements for the gear type used to license. LLP licenses further specify whether the fish for Pacific cod, the vessel operation license is restricted by regulatory type, and the regulatory area(s) in which 2. License Limitation Program (LLP) sideboards from being used in other the fishery is prosecuted. All CDQ License fisheries. vessels and all non-jig vessels listed in A groundfish LLP license authorizes a In general, a vessel is authorized to Table 1 are required to have an FFP vessel to be used in a directed fishery use only the gear that is designated on onboard that is endorsed for Pacific cod. for groundfish in the BSAI in the LLP license. Unlike the FFP, the A vessel may not be operated in a accordance with the specific area and endorsements on an LLP license are not category other than what is specified on species endorsements, the vessel and generally severable and an LLP license, the FFP. gear designations, the maximum length with its associated endorsements, can be

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reassigned to a different vessel only designated on an FFP and an LLP Need for this Action once per year. Like FFPs, operators of license that have the required This final rule prohibits some vessels that have not been issued an LLP endorsements (76 FR 73513, November federally permitted vessels from fishing license and that fish exclusively in state 29, 2011). Additionally, regulations at for Pacific cod in the State of Alaska’s waters fisheries are not required to § 679.7 require Federal permit holders parallel fisheries in the BSAI. Under comply with Federal requirements for who operate vessels in these two current regulations, Federal FFPs and LLP licenses. catcher/processor sectors to adhere to LLP licenses are only required for the Federal BSAI Pacific cod opening BSAI State Waters Pacific Cod Fisheries fishing activity in the EEZ. As a result, and closing periods when they some vessels without an FFP or LLP As mentioned above, catch limits for participate in the State’s parallel the Federal Pacific cod fisheries include license, and other vessels that have an fisheries. At this time, vessels in other FFP but with an LLP license that is not the sum of harvests that come from non-CDQ fishery sectors may participate BSAI Federal waters and from the endorsed for Pacific cod fishing in the in the State’s Pacific cod parallel adjacent BSAI Federal waters, have concurrent state parallel Pacific cod fisheries without having an FFP, an LLP participated in the State’s parallel fisheries. Under the authority of Alaska license, and endorsements necessary to fisheries. Additionally, the State is statutes and regulations, the Alaska participate in the Federal fishery. Department of Fish and Game (ADF&G) As mentioned above, Pacific cod legally constrained from allocating manages two parallel Pacific cod harvested during the State’s parallel resources within a single fishery, and as fisheries and three GHL fisheries in the fisheries accrue toward the Federal a result does not recognize sector state waters adjacent to the BSAI EEZ. Pacific cod TAC. The State closes a allocations based on operation types, Two of the GHL fisheries are held in the parallel Pacific cod fishery by gear such as catcher vessel versus catcher/ State’s Dutch Harbor Subdistrict of the sector when NMFS determines the TAC processor designations. This Bering Sea; the third is within the for a Federal fishery sector using that circumstance has inadvertently allowed Aleutian Islands Subdistrict of the gear type has been reached or when fishing in the State parallel fisheries by Aleutian Islands. incidental species allowances are met. catcher vessels even when the Federal Section 2.7 of the Analysis and the fishery sector for those vessels has fully Parallel Pacific Cod Fisheries preamble to the proposed rule provide achieved its Federal Pacific cod During the Federal BSAI Pacific cod specific details on the number of vessels allocation. This has been most common fisheries in the EEZ, the State creates that have participated in the State’s among hook-and-line vessels. The concurrent, or parallel, Pacific cod BSAI Pacific cod parallel fisheries, by Council determined, and NMFS agrees, fisheries in state waters by generally vessel sector, over the 2010–2019 that this fishing activity has negative adopting NMFS management actions for period. For all sectors combined, the effects on the Federal management state waters. The initial Federal BSAI total number of participating vessels in regime for BSAI Pacific cod and must be Pacific cod season (‘‘A-Season’’) opens the BSAI Pacific cod parallel fisheries curtailed to maintain the conservation January 1 for vessels using hook-and- has ranged from 13 to 39 vessels per and management benefits intended by line, pot, and jig gear, and January 20 for year. The proportion of Pacific cod that the Council and implemented by NMFS. vessels using trawl gear. Unless those vessels have caught in state waters For example, the Federal Pacific cod specifically prohibited by State during the concurrent BSAI Federal seasons for the hook-and-line catcher/ regulation, (e.g., nonpelagic trawl gear is waters and State parallel fisheries varies processor sector typically remain open prohibited in state waters by 5 AAC by sector, but for all sectors combined to directed fishing for much of the year, 39.164 (4)), the State authorizes the has ranged from 2 percent to 5 percent whereas the seasons for hook-and-line same gear types, seasons, and bycatch of their total BSAI Pacific cod catch over catcher vessel sectors, which fish under limits that apply in the adjacent Federal the 2010–2019 period. much smaller allocations, normally BSAI Pacific cod season during a close earlier in the year. Because the parallel fishery. In addition, during GHL Fisheries State does not recognize sector these State parallel Pacific cod fisheries, State GHL fisheries for Pacific cod are allocations based on operation types, vessels using longline gear may not also prosecuted in state waters, but the State parallel Pacific cod fishery exceed 58 feet in overall length (OAL) occur when fishing by specific Pacific remains open for much of the year, so (5 AAC 28.690(c)). Except for vessels cod sectors in the Federal and parallel long as the Federal catcher/processor using mechanical jigging machines, fisheries is closed. The State currently hook-and-line season is open. Therefore, State regulations require all vessels that manages GHL fisheries adjacent to both when the catcher vessel hook-and-line participate in a parallel Pacific cod the BSAI subareas. The GHL fisheries allocation has been achieved, and fishery to have an activated VMS (5 may re-open and close as needed to NMFS closes that sector’s season in AAC 28.087(c)). coordinate with Federal fishery Federal waters, some of those vessels Although the State adopts many of the openings. have continued to fish for Pacific cod in management measures applicable to The Alaska Board of Fisheries (BOF) state waters. When this has occurred, vessels participating in the Federal established the Dutch Harbor NMFS has been obligated to reallocate BSAI Pacific cod fisheries in the EEZ, Subdistrict (DHS) state waters Pacific Pacific cod from other sectors to prevent the State does not require vessels that cod GHL fishery in 2013 (5 AAC overharvest of the area TAC. The participate in the State’s parallel Pacific 28.648). Pot and jig gear are the only Council determined that this cod fisheries to possess an FFP or an legal gear types. In the Aleutian Islands complicates Federal conservation and LLP license. Effective January 1, 2012, Subdistrict GHL fishery (5 AAC 28.647), management measures that are intended NMFS implemented regulations at state regulations allow trawl, longline, to hold sectors to their allocations and § 679.7 that prohibit federally permitted pot, and jig gear vessels. More it also undermines the intent of catcher/processor pot and catcher/ information on the GHL fisheries in the previous Council decisions regarding processor hook-and-line vessels from Dutch Harbor and Aleutian Islands license limitation, sector allocations, being used to catch and retain Pacific Subdistricts can be found in section 2.6 and catch reporting. cod in state waters during the State’s of the Analysis and in the preamble to When evaluating these issues, the parallel fisheries unless the vessel is the proposed rule. Council also considered the terms under

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which FFPs are issued. Under current until after the expiration date of the situations where a vessel owner could regulations, an FFP is issued in a three- surrendered FFP. choose to amend or surrender the FFP year cycle, but within that period, a As noted above, the Council’s intent before fishing in the State parallel or vessel operator can surrender the FFP at for the regulatory amendments in this GHL fisheries to avoid NMFS observer any time, then reapply for a reissuance rule is to expand upon rules already in coverage or recordkeeping and reporting of the permit any number of times place for BSAI catcher/processor vessels requirements, and then seek to amend within the three-year cycle. This would that fish for Pacific cod with pot or or reissue the FFP for the opening of the provide an opportunity for vessel hook-and-line gear. Federal regulations Federal waters fishery. operators to avoid the prohibitions in currently require these two catcher/ this rule. Lengthening the amount of processor sectors to have an FFP and Final Regulations time that must pass between the period LLP license with correct Federal Pacific cod endorsements in order to fish in the This final rule amends paragraphs when a person surrenders an FFP and (b)(3)(ii)(B) and (b)(3)(iii)(B) in 50 CFR later reapplies for a new FFP will create parallel fisheries (76 FR 73513, 679.4 by expanding the scope of the a disincentive for vessel owners to November 29, 2011). The two Pacific applicable FFP vessel operation types to circumvent Federal regulations by cod catcher/processor sectors are also include both catcher/processors and temporarily surrendering the FFP. subject to the FFP relinquish and catcher vessels. The revisions also Similar concerns apply to FFP reapply rules mentioned above. specify that the applicable FFP gear amendments. The regulations in this final rule This final rule addresses these issues. reflect the Council’s intent and do not types include trawl, pot, and hook-and- The regulations in this final rule are modify the regulatory requirements for line gears. Note this final rule explicitly similar to regulations implemented by vessels using jig gear in the BSAI. excludes vessels using jig gear from NMFS in 2011 as part of Amendment 83 Additionally, this rule does not limit these regulatory actions. to the Fishery Management Plan for participation in the state waters GHL This final rule amends paragraphs Groundfish of the Gulf of Alaska (76 FR fisheries. (c)(3) and (4) in 50 CFR 679.7 to expand 74670, December 1, 2011), and are also Section 2.7.6 of the Analysis and the the scope of vessels that are prohibited Final Regulatory Flexibility Analysis similar to regulations that apply to pot from participating in the BSAI parallel (FRFA) below provide details on the and hook-and-line catcher/processors in fisheries without properly endorsed LLP number and type of vessels that may the BSAI (76 FR 73513, November 29, licenses. The former regulations that 2011). potentially be affected by the regulations in this rule. restrict fishing in the Pacific cod Description of the Final Rule and parallel fisheries applied only to Amending, Surrendering, and Reissuing Effects catcher/processor vessels fishing pot or an FFP hook-and-line gear in the parallel waters FFP Requirements and LLP License The regulations established in this of the BSAI. This action changes the This rule prohibits a trawl, hook-and- rule also prohibit amendment of an FFP regulations to identify both catcher/ line, or pot gear vessel that is named on during its effective period and create a processor and catcher vessel operation an FFP or LLP license to catch and disincentive for a vessel operator to types, and to include vessels using retain BSAI Pacific cod in state waters surrender, or relinquish, their FFP trawl, pot, and hook-and-line gear types during the State’s parallel Pacific cod during its effective period. Under in the regulations. fisheries unless the vessel is named on current regulations, an FFP holder could Modifying the regulations currently at an FFP and LLP license that have the avoid vessel observer coverage, catch § 679.7(c)(4)(i) to include trawl, pot, and required endorsements. In addition, this reporting, and FFP and LLP hook-and-line gear types provides an rule prohibits a federally permitted requirements by amending or opportunity to simplify the regulations hook-and-line, pot, or trawl gear vessel surrendering their FFP to fish in the by deleting paragraph (c)(4)(ii) in from catching and retaining BSAI State’s Pacific cod parallel fishery, and § 679.7. Pacific cod in state waters during the then requesting that NMFS amend or State’s parallel fisheries when NMFS reissue the FFP so that the vessel can be Lastly, this final rule amends has closed the corresponding sector to used to resume fishing in the EEZ. paragraph (b)(3)(i) in 50 CFR 679.4 to directed Pacific cod fishing in the EEZ. Amending or surrendering an FFP in specifically reference the three-year Through this permit condition, federally this fashion may degrade the quality of cycle NMFS uses for issuing FFPs. permitted vessels will be required to information available to NMFS to Regulations at § 679.4(b) govern adhere to Federal seasonal Pacific cod manage the Pacific cod fishery and issuance of FFPs, and for many years closures and other management provide an opportunity to undermine specifically referenced the three-year measures for their fishery sector when the intent of this rule. As noted above, cycle followed by NMFS for issuing participating in the State’s parallel FFPs are currently issued on a three- FFPs. NMFS proposed to maintain the fisheries. year cycle; however, a vessel operator three-year cycle when it published a Additionally, the regulations with an FFP can amend or surrender the proposed rule to modify recordkeeping implemented by this final rule limit the permit at any time and have the FFP and reporting regulations in 2007 (72 FR number of times in which a vessel reissued any number of times within the 35747; June 29, 2007). However, the owner may relinquish an FFP and then three-year cycle. Prohibiting an specific reference to the three-year cycle reapply for a new FFP. Specifically, if amendment of an issued FFP during the was inadvertently omitted in the an FFP is issued to a pot or hook-and- three-year cycle and lengthening the supplemental proposed rule (73 FR line catcher vessel with a Bering Sea or amount of time that must pass before a 55368; September 24, 2008) and not Aleutian Islands Pacific cod person can reapply for a surrendered included in the final rule for that action endorsement, or to a trawl vessel with FFP makes it more difficult for FFP (73 FR 76136; December 15, 2008). a Bering Sea or Aleutian Islands holders to circumvent the regulations by NMFS has continued to use a three-year endorsement, and if the FFP for the temporarily amending or surrendering cycle for issuing FFPs and this final rule vessel is surrendered, then the vessel the FFP. The regulatory provisions in will reinsert the specific reference to will not be eligible to receive a new FFP this final rule for FFPs will address this cycle.

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Changes From Proposed to Final Rule similar to those adopted under this final of any changes made to the proposed NMFS did not make any substantive rule have been in place since 2011 for rule as a result of such comments; (3) changes to the regulatory text in this the parallel Pacific cod fisheries in the the response of the agency to any final rule from the regulatory text in the Gulf of Alaska and for catcher/processor comments filed by the Chief Counsel for proposed rule. vessels that harvest Pacific cod in the Advocacy of the Small Business BSAI. In each of these cases, the Administration (SBA) in response to the Comments and Responses regulations have proven to be effective proposed rule, and a detailed statement NMFS received and considered four by enhancing the management of the of any change made to the proposed rule unique, relevant comment letters on the fisheries. The regulations in this rule in the final rule as a result of the proposed rule. All public comment reflect the Council’s and NMFS’s intent comments; (4) a description of and an letters submitted during the comment to adopt similar regulations for Pacific estimate of the number of small entities period may be obtained from cod catcher vessel operations in the to which the rule will apply or an www.regulations.gov. Three of the BSAI. explanation of why no such estimate is available; (5) a description of the letters expressed support for the Classification proposed regulations, and one letter did projected reporting, recordkeeping, and Pursuant to Section 304(b)(3) of the not support the proposed rule. None of other compliance requirements of the MSA, the NMFS Assistant the individual commenters identified rule, including an estimate of the classes Administrator has determined that this themselves as direct participants in the of small entities that will be subject to final rule is consistent with the BSAI BSAI Pacific cod fisheries. All three the requirement and the type of FMP, other provisions of the MSA, and letters that supported the proposed rule professional skills necessary for other applicable law. were submitted anonymously, and preparation of the report or record; and This final rule has been determined to NMFS cannot determine whether they (6) a description of the steps the agency be not significant for purposes of were submitted by separate individuals. has taken to minimize the significant Executive Order 12866. The letters and comments are grouped, economic impact on small entities This final rule is not an Executive consistent with the stated objectives of summarized, and responded to below. Order 13771 regulatory action because Comment 1: The three comment applicable statutes including a this rule is not significant under statement of the factual, policy, and letters that supported the proposed Executive Order 12866. regulations each expressed the legal reasons for selecting the alternative importance of avoiding overfishing. The Regulatory Impact Review adopted in this final rule and why each one of the other significant alternatives letters mentioned the conservation and An RIR was prepared to assess the to the rule considered by the agency management benefits of enhancing costs and benefits of available regulatory which affect the impact on small proper catch accounting in the fisheries. alternatives. A copy of this analysis is entities was rejected. Two of the comment letters recognized available from NMFS (see ADDRESSES). that Pacific cod in the BSAI are not NMFS has adopted the action A description of this rule, along with overfished. alternative over the former status quo, the need for and objectives of the rule, Response: NMFS acknowledges these and makes regulatory revisions in this are contained in the preamble herein comments, and reiterates the benefits of final rule based on those measures that and in the preamble to the proposed this rule, which are to enhance the maximized net benefits to the Nation. rule (85 FR 58322, September 18, 2020), management of the Pacific cod fisheries Specific aspects of the economic and are not repeated here. and to reflect the intent of the Council analysis are discussed below in the Public and Chief Counsel for Advocacy regarding license limitation, vessel Final Regulatory Flexibility Analysis Comments on the IRFA sector allocations of Pacific cod, and (FRFA) section. More information is proper catch reporting. NMFS agrees provided in the Analysis, as well as in NMFS published the proposed rule on that Pacific cod in the BSAI are the preamble to this rule and in the September 18, 2020 (85 FR 58322). An currently not overfished. preamble to the proposed rule. IRFA was prepared and included in the Comment 2: Two of the three Classification section of the preamble to supporting letters suggested the new Final Regulatory Flexibility Analysis the proposed rule. The comment period regulations would assist NMFS by (FRFA) on the proposed rule ended on October making it easier to discipline or punish A final regulatory flexibility analysis 19, 2020. None of the comments from persons who exceed the Pacific cod (FRFA) was prepared in this final rule. the public directly or indirectly TAC. This FRFA incorporates the initial referenced the IRFA. The Chief Counsel Response: NMFS agrees that keeping regulatory flexibility analysis (IRFA). for Advocacy of the SBA did not file any harvests within TAC limits is an Section 604 of the Regulatory comments on the proposed rule. Flexibility Act (RFA) (5 U.S.C. 604) essential element of effective Number and Description of Small requires that, when an agency management; however, the record that Entities Regulated by This Final Rule supports this final rule does not reflect promulgates a final rule under section concerns with the agency’s current 553 of Title 5 of the U.S. Code, after For RFA purposes only, NMFS has enforcement of overharvest limits or being required by that section or any established a small business size deterrence of regulatory violations. other law to publish a general notice of standard for businesses, including their Comment 3: One comment did not proposed rulemaking, the agency shall affiliates, whose primary industry is support the proposed rule, and briefly prepare a FRFA. Section 604 describes commercial fishing (see 50 CFR 200.2). expressed it would not be beneficial to the required contents of a FRFA: (1) A A business primarily engaged in American citizens or to the fish. statement of the need for and objectives commercial fishing (NAICS code 11411) Response: NMFS has determined that of the rule; (2) a statement of the is classified as a small business if it is the final rule is consistent with the significant issues raised by the public independently owned and operated, is BSAI FMP, the MSA, and other comments in response to the IRFA, a not dominant in its field of operation applicable law and disagrees with the statement of the assessment of the (including its affiliates), and has premise of the comment. Regulations agency of such issues, and a statement combined annual receipts not in excess

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of $11 million for all its affiliated both Federal and state waters during the alternatives, Alternative 2 (the operations worldwide. concurrent Federal and parallel preferred, action alternative) promotes This final rule directly regulates fisheries; however, in previous years, an conservation, management, and catch individuals and entities that participate, incremental portion of their accounting measures that were or would seek to participate, in the participation has occurred in the previously adopted by the North Pacific BSAI Pacific cod parallel fisheries with parallel fishery when their sector was Fishery Management Council (Council) federally permitted vessels using trawl, closed to fishing in Federal waters. regarding license limitation, sector hook-and-line, or pot gear. The Analysis Under this final rule, these vessels will allocations, and catch reporting. As indicates that 192 vessels have a history no longer be able to circumvent seasonal noted in the preamble to this rule, the of participation in the BSAI targeted closures for their sector by participating Council’s intent for the regulatory Pacific cod fisheries over the 2010–2019 in the parallel fishery after their Federal amendments of Alternative 2 is to period. Based upon the estimated ex- sector has been closed. This ensures that expand upon rules already in place for vessel earnings of these vessels, the their Pacific cod harvests will be BSAI catcher/processor vessels that fish Analysis also indicates that 71 of these attributed to the appropriate sector, as for Pacific cod with pot or hook-and- vessels are considered small entities. Of designated on their LLP license. line gear. Federal regulations currently the 30 vessels that are expected to be Vessel owners most likely to be require these two catcher/processor directly impacted by the regulations in impacted by this final rule are those sectors to have an FFP and LLP license this rule, 29 are considered small whose vessels have an FFP and with correct Federal Pacific cod entities, based on SBA criteria. participate in the parallel fishery, but endorsements in order to fish in the This rule, which prohibits certain who do not have the appropriate LLP parallel fisheries (76 FR 73513, federally permitted vessels from license to fish for Pacific cod in the November 29, 2011). These two Pacific catching and retaining Pacific cod in the BSAI Federal waters. These vessels cod catcher/processor sectors are also State’s parallel fishery unless the vessel could either exit the parallel fishery and subject to the FFP relinquish and has the required permits, licenses, and therefore the BSAI Pacific cod fishery reapply rules implemented by this rule. endorsements, is intended to reflect the entirely, or they could forfeit their FFP Alternative 1 was the no action intent of previous recommendations by (and therefore fish solely in state waters, alternative. Under the status quo, the the Council regarding license limitation, but also forfeit Federal fishing regulations inadvertently allow fishing vessel sector allocations of Pacific cod, opportunities associated with their in the State parallel fisheries by catcher and catch reporting. Additionally, this FFP), or they could obtain a valid LLP vessels even when the Federal fishery rule is expected to enhance the license that would allow them the sector for those vessels has fully conservation and management of the flexibility to participate in both the achieved its Federal Pacific cod fisheries by holding vessel sectors to Federal and parallel Pacific cod allocation, which is contrary to the their allocations and to promote the fisheries. Because LLP licenses are a Council’s intent. goals and objectives of the BSAI FMP transferable and marketable asset, the The regulations in this final rule do for the Federal Pacific cod fishery. In owners’ decisions will likely be not modify the regulatory requirements 2011, NMFS implemented provisions influenced by the cost and availability for vessels using jig gear in the BSAI. similar to this final rule as part of of an LLP license. Additionally, this rule does not limit Amendment 83 to the Fishery participation in the state waters GHL Management Plan for Groundfish of the Recordkeeping, Reporting, and other fisheries. Gulf of Alaska. Regulations established Compliance Requirements Small Entity Compliance Guide by this final rule are also very similar to Under this final rule, recordkeeping current regulations that control the and reporting will not change for Section 212 of the Small Business participation of catcher/processor hook- federally permitted catcher vessels that Regulatory Enforcement Fairness Act of and-line and pot gear vessels in the participate in the directed BSAI non- 1996 states that, for each rule or group BSAI; the regulations in this rule CDQ Pacific cod fisheries. The scope of of related rules for which an agency is effectively add BSAI hook-and-line this final rule modifies the conditions of required to prepare a final regulatory catcher vessels, pot catcher vessels, and Federal permits and imposes flexibility analysis, the agency shall trawl gear vessels to the existing body participation requirements for certain publish one or more guides to assist of BSAI fishing regulations. federally permitted vessels when fishing small entities in complying with the The majority of the 30 vessel owners for Pacific cod in the parallel fisheries. rule, and shall designate such who are directly impacted by this rule This action also modifies the conditions publications as ‘‘small entity currently have LLP licenses that allow under which existing permits may be compliance guides.’’ The agency shall them to participate in the parallel used. Those specific requirements and explain the actions a small entity is fisheries. Five of the 30 vessels the permit conditions are described in required to take to comply with a rule currently do not have FFPs, which the preambles to this rule and to the or group of rules. NMFS will publish on prevents them from fishing in Federal proposed rule, and are not repeated its website a summary of this waters. Under this final rule, these here. rulemaking including compliance vessels could continue to fish as they do requirements that will serve as the small now, solely in state waters. However, if Duplicate, Overlapping, or Conflicting entity compliance guide. Copies of the the vessel owners choose to obtain an Federal Rules proposed rule and this final rule are FFP, their vessels would have the No duplication, overlap, or conflict available from the NMFS website at flexibility to fish in both state and between this final rule and existing https://fisheries.noaa.gov/region/alaska. Federal waters during the directed Federal rules has been identified. Federal Pacific cod fishery for their Description of Significant Alternatives Collection-of-Information Requirements sector. Also among the 30 directly Considered to the Final Action That This final rule does not contain a impacted vessels, 15 other vessels are Minimize Adverse Impacts on Small change to a collection of information currently associated with FFPs and are Entities requirement for purposes of the linked to LLP licenses that allow them The Council and NMFS considered Paperwork Reduction Act of 1995. The to continue to fish for Pacific cod in two alternatives. Among the two existing collection of information

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requirements would continue to apply or authorized representative of a vessel (1) The BSAI area endorsement for the under the following OMB Control named on an FFP that has been issued BSAI area adjacent to the parallel Numbers: 0648–0206, Alaska Region with endorsements for catcher/ fishery where the harvest occurred; and Permit Family of Forms (FFP), and processor or catcher vessel operation (2) A BSAI catcher/processor Pacific 0648–0334, Alaska License Limitation type; trawl, pot, and/or hook-and-line cod hook-and-line endorsement, a BSAI Program for Groundfish, Crab, and gear type; and the BSAI area, until after catcher/processor Pacific cod pot Scallops. the expiration date of the surrendered endorsement, or a BSAI Pacific cod FFP as initially issued. catcher vessel endorsement if that List of Subjects in 50 CFR Part 679 * * * * * catcher vessel is 60 feet or greater length Alaska, Fisheries, Reporting and (iii) * * * overall; and recordkeeping requirements. (B) In the BSAI, NMFS will not (B) An FFP issued under § 679.4(b) Dated: November 25, 2020. approve an application to amend an FFP with the following endorsements: Samuel D. Rauch, III to remove a catcher/processor or catcher (1) A catcher/processor or catcher Deputy Assistant Administrator for vessel operation type endorsement, vessel operation type endorsement; Regulatory Programs, National Marine trawl gear type endorsement, pot gear (2) A BSAI area endorsement; and Fisheries Service. type endorsement, hook-and-line gear (3) A pot or hook-and-line gear type For the reasons set out in the type endorsement, or BSAI area endorsement. preamble, NMFS amends 50 CFR part endorsement from an FFP that has been (ii) Or, that trawl vessel is designated 679 as follows: issued with endorsements for catcher/ on both: processor or catcher vessel operation (A) An LLP license issued under PART 679—FISHERIES OF THE § 679.4(k) endorsed for trawl gear with EXCLUSIVE ECONOMIC ZONE OFF type, trawl, pot, or hook-and-line gear type, and the BSAI area. the BSAI area endorsement for the BSAI ALASKA area adjacent to the parallel fishery * * * * * ■ where the harvest occurred; and 1. The authority citation for part 679 ■ 3. In § 679.7, revise paragraphs (c)(3) (B) An FFP issued under § 679.4(b) continues to read as follows: and (4) to read as follows: with the following endorsements: Authority: 16 U.S.C. 773 et seq.; 1801 et (1) The BSAI area endorsement; seq.; 3631 et seq.; Pub. L. 108–447; Pub. L. § 679.7 Prohibitions. (2) An operational type endorsement; 111–281. * * * * * (3) A trawl gear type endorsement; ■ 2. In § 679.4, revise paragraphs (c) * * * and (b)(3)(i), (b)(3)(ii)(B), and (b)(3)(iii)(B) to (3) Parallel Pacific cod fisheries— (4) A Pacific cod gear type read as follows: participation requirements. Use a vessel endorsement. § 679.4 Permits. named or required to be named on an (4) Parallel Pacific cod fisheries— FFP to catch and retain Pacific cod from closures. Use a vessel named or required * * * * * State of Alaska waters adjacent to the (b) * * * to be named on an FFP to catch and (3) * * * (i) Length of permit BSAI, when Pacific cod caught by that retain Pacific cod with trawl, pot, or effectiveness. NMFS issues FFPs on a vessel is deducted from the Federal TAC hook-and-line gear from State of Alaska three-year cycle and an FFP is in effect specified under § 679.20(a)(7)(ii)(A)(2) waters adjacent to the BSAI when from the effective date through the through (9), unless: Pacific cod caught by that vessel is expiration date, as indicated on the FFP, (i) That non-trawl vessel is designated deducted from the Federal TAC unless the FFP is revoked, suspended, on both: specified under § 679.20(a)(7)(ii)(A) for surrendered in accordance with (A) An LLP license issued under trawl, pot, or hook-and-line gear, if paragraph (a)(9) of this section, or § 679.4(k), unless that vessel is using jig directed fishing for Pacific cod is not modified under § 600.735 or § 600.740 gear and exempt from the LLP license open for the sector to which the vessel of this chapter. requirement under § 679.4(k)(2)(iii). belongs in Federal waters. (ii) * * * Each vessel required to have an LLP * * * * * (B) For the BSAI, NMFS will not license must be designated with the [FR Doc. 2020–26593 Filed 12–2–20; 8:45 am] reissue a surrendered FFP to the owner following endorsements: BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 85, No. 233

Thursday, December 3, 2020

This section of the FEDERAL REGISTER see ‘‘Obtaining Information and www.regulations.gov as well as enter the contains notices to the public of the proposed Submitting Comments’’ in the comment submissions into ADAMS. issuance of rules and regulations. The SUPPLEMENTARY INFORMATION section of The NRC does not routinely edit purpose of these notices is to give interested this document. persons an opportunity to participate in the comment submissions to remove rule making prior to the adoption of the final FOR FURTHER INFORMATION CONTACT: identifying or contact information. rules. Gerry Gulla, Office of Enforcement, U.S. If you are requesting or aggregating Nuclear Regulatory Commission, comments from other persons for Washington, DC 20555–0001; telephone: submission to the NRC, then you should NUCLEAR REGULATORY 301–287–9143; email: Gerald.Gulla@ COMMISSION inform those persons not to include nrc.gov. identifying or contact information that 10 CFR Chapter I SUPPLEMENTARY INFORMATION: they do not want to be publicly disclosed in their comment submission. [NRC–2020–0261] I. Obtaining Information and Submitting Comments Your request should state that the NRC NRC Enforcement Policy does not routinely edit comment A. Obtaining Information submissions to remove such information AGENCY: Nuclear Regulatory Please refer to Docket ID NRC–2020– before making the comment Commission. 0261 when contacting the NRC about submissions available to the public or ACTION: Proposed policy statement the availability of information for this entering the comment into ADAMS. revision; request for comment. action. You may obtain publicly- II. Background available information related to this SUMMARY: The U.S. Nuclear Regulatory action by the following methods: The mission of the NRC is to license Commission (NRC) is issuing for public • Federal Rulemaking Website: Go to and regulate the Nation’s civilian use of comment a proposed policy statement https://www.regulations.gov and search titled NRC Enforcement Policy (the byproduct, source, and special nuclear for Docket ID NRC–2020–0261. material to ensure adequate protection Policy). The NRC is soliciting comments • NRC’s Agencywide Documents of public health and safety, promote the from interested parties, including public Access and Management System interest groups, States, members of the common defense and security, and (ADAMS): You may obtain publicly- protect the environment. Adequate public, and the regulated industry (i.e., available documents online in the reactor, fuel cycle, and material protection is presumptively assured by ADAMS Public Documents collection at compliance with the NRC’s regulations. licensees, vendors, and contractors) to https://www.nrc.gov/reading-rm/ The NRC Enforcement Policy (the assist the NRC in revising its policy. adams.html. To begin the search, select Policy) contains the basic process used DATES: Submit comments by February 1, ‘‘Begin Web-based ADAMS Search.’’ For to assess and disposition apparent 2021. Comments received after this date problems with ADAMS, please contact will be considered if it is practical to do the NRC’s Public Document Room (PDR) violations of NRC requirements. so, but the NRC is able to ensure reference staff at 1–800–397–4209, 301– III. Discussion consideration only for comments 415–4737, or by email to pdr.resource@ received before this date. nrc.gov. The Draft NRC Enforcement This document provides the public ADDRESSES: You may submit comments Policy and Enforcement Policy Revision with an opportunity to review and by any of the following methods: Summary are available in ADAMS provide comments on the draft revision • Federal Rulemaking Website: Go to under Accession Nos. ML20297A235 to the policy found in ADAMS under http://www.regulations.gov and search and ML20297A243 respectively. Accession No. ML20297A235. Each for Docket ID NRC–2020–0261. Address • Attention: The Public Document proposed revision is referenced with a questions about NRC dockets to Dawn Room (PDR), where you may examine bracketed number, called an item Forder; telephone: 301–415–3407; and order copies of public documents is number. Each item number is listed in email: [email protected]. For currently closed. You may submit your the ‘‘Enforcement Policy Revision technical questions contact the request to the PDR via email at Summary’’ document (ADAMS individual listed in the FOR FURTHER [email protected] or call 1–800– Accession No. ML20297A243) and INFORMATION CONTACT section of this 397–4209 between 8 a.m. and 4 p.m. includes a brief description of the document. (EST), Monday through Friday, except • proposed revision. Comments received Email comments to: Federal holidays. during this 60-day comment period will [email protected]. If you B. Submitting Comments be considered for the final version of the do not receive an automatic email reply policy. confirming receipt, then contact us at Please include Docket ID NRC–2020– 301–415–1677. 0261 in your comment submission. Dated: November 30, 2020. • Mail comments to: Secretary, U.S. The NRC cautions you not to include For the Nuclear Regulatory Commission. Nuclear Regulatory Commission, identifying or contact information that George A. Wilson, Washington, DC 20555–0001, ATTN: you do not want to be publicly Director, Office of Enforcement. Rulemakings and Adjudications Staff. disclosed in your comment submission. [FR Doc. 2020–26639 Filed 12–2–20; 8:45 am] For additional direction on obtaining The NRC will post all comment information and submitting comments, submissions at http:// BILLING CODE 7590–01–P

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DEPARTMENT OF JUSTICE Administrator of DEA (Administrator) from legitimate channels; and pursuant to 28 CFR 0.100) with the clandestine importation, manufacture, Drug Enforcement Administration authority to temporarily place a or distribution. 21 U.S.C. 811(h)(3). substance in schedule I of the CSA for A substance meeting the statutory 21 CFR Part 1308 two years without regard to the requirements for temporary scheduling [Docket No. DEA–716] requirements of 21 U.S.C. 811(b), if he may only be placed in schedule I. 21 finds that such action is necessary to U.S.C. 811(h)(1). Substances in schedule Schedules of Controlled Substances: avoid an imminent hazard to the public I are those that have a high potential for safety. 21 U.S.C. 811(h)(1). In addition, Temporary Placement of Brorphine in abuse, no currently accepted medical Schedule I if proceedings to control a substance are use in treatment in the United States, initiated under 21 U.S.C. 811(a)(1) while AGENCY: and a lack of accepted safety for use Drug Enforcement the substance is temporarily controlled under medical supervision. 21 U.S.C. Administration, Department of Justice. under section 811(h), the Administrator 812(b)(1). ACTION: Proposed amendment; notice of may extend the temporary scheduling intent. for up to one year. 21 U.S.C. 811(h)(2). Brorphine SUMMARY: The Acting Administrator of Where the necessary findings are The availability of synthetic opioids the Drug Enforcement Administration is made, a substance may be temporarily issuing this notice of intent to publish scheduled if it is not listed in any other on the illicit drug market continues to a temporary order to schedule 1-(1-(1-(4- schedule under 21 U.S.C. 812, or if there pose an imminent hazard to the public bromophenyl)ethyl)piperidin-4-yl)-1,3- is no exemption or approval in effect for safety. Adverse health effects associated dihydro-2H-benzo[d]imidazol-2-one the substance under section 505 of the with the abuse of synthetic opioids and (commonly known as brorphine), Federal Food, Drug, and Cosmetic Act, the increased popularity of these including its isomers, esters, ethers, 21 U.S.C. 355. 21 U.S.C. 811(h)(1); 21 substances have been serious concerns salts, and salts of isomers, esters, and CFR part 1308. in recent years. The presence of new synthetic opioids with no approved ethers whenever the existence of such Background isomers, esters, ethers, and salts is medical use exacerbates the possible, in schedule I of the Controlled Section 811(h)(4) requires the unprecedented opioid epidemic the Substances Act. When it is issued, the Administrator to notify the Secretary of United States continues to experience. temporary scheduling order will impose the Department of Health and Human The trafficking and abuse of new the regulatory controls and Services (HHS) of his intention to synthetic opioids are deadly new trends. temporarily place a substance in administrative, civil, and criminal The identification of brorphine on the schedule I of the CSA.2 The Acting sanctions applicable to schedule I illicit drug market has been reported in Administrator transmitted notice of his controlled substances on persons who the United States, Canada, Belgium, and handle (manufacture, distribute, reverse intent to place brorphine in schedule I on a temporary basis to the Assistant Sweden. Data obtained from preclinical distribute, import, export, engage in pharmacology studies show that research, conduct instructional Secretary for Health of HHS (Assistant Secretary) by letter dated September 22, brorphine has a pharmacological profile activities or chemical analysis, or similar to that of other potent opioids possess) or propose to handle brorphine. 2020. The Assistant Secretary such as morphine and fentanyl, DATES: December 3, 2020. responded to this notice by letter dated October 27, 2020, and advised that schedule II controlled substances. FOR FURTHER INFORMATION CONTACT: based on a review by the Food and Drug Because of the pharmacological Terrence L. Boos, Drug and Chemical similarities between brorphine and Evaluation Section, Diversion Control Administration (FDA), there are currently no investigational new drug other potent opioids, the use of Division, Drug Enforcement brorphine presents a high risk of abuse Administration; Mailing Address: 8701 applications or approved new drug applications for brorphine. The and may negatively affect users and Morrissette Drive, Springfield, Virginia their communities. The positive 22152; Telephone: (571) 362–8207. Assistant Secretary also stated that HHS had no objection to the temporary identification of this substance in law SUPPLEMENTARY INFORMATION: This placement of brorphine in schedule I of enforcement seizures and post-mortem document is issued pursuant to the the CSA. Brorphine is not currently toxicology reports is a serious concern temporary scheduling provisions of 21 listed in any schedule under the CSA, to the public safety. The abuse of U.S.C. 811(h). The Drug Enforcement and no exemptions or approvals are in brorphine has been associated with at Administration (DEA) intends to issue a effect for brorphine under 21 U.S.C. 355. least seven fatalities between June 2020 temporary scheduling order (in the form To find that placing a substance and July 2020 in the United States. of a temporary amendment) to add temporarily in schedule I of the CSA is Thus, brorphine poses an imminent brorphine to schedule I under the hazard to public safety. 1 necessary to avoid an imminent hazard Controlled Substances Act (CSA). The to the public safety, the Administrator is temporary scheduling order will be Available data and information for required to consider three of the eight brorphine, as summarized below, published in the Federal Register on or factors set forth in 21 U.S.C. 811(c): The after January 4, 2021. indicates that this substance has a high substance’s history and current pattern potential for abuse, no currently Legal Authority of abuse; the scope, duration and accepted medical use in treatment in the The CSA provides the Attorney significance of abuse; and what, if any, United States, and a lack of accepted General (as delegated to the risk there is to the public health. 21 safety for use under medical U.S.C. 811(h)(3). Consideration of these supervision. DEA’s three-factor analysis 1 Though DEA has used the term ‘‘final order’’ factors includes actual abuse; diversion is available in its entirety under with respect to temporary scheduling orders in the ‘‘Supporting and Related Material’’ of past, this notice of intent adheres to the statutory 2 The Secretary of HHS has delegated to the the public docket for this action at language of 21 U.S.C. 811(h), which refers to a Assistant Secretary for Health of HHS the authority ‘‘temporary scheduling order.’’ No substantive to make domestic drug scheduling www.regulations.gov under Docket change is intended. recommendations. 58 FR 35460, July 1, 1993. Number DEA–716.

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Factor 4. History and Current Pattern of substance) and fentanyl (a schedule II NFLIS registered 20 reports of Abuse substance). In reports from the brorphine from Ohio (4), Pennsylvania Brorphine is part of a structural class Northeastern Illinois Regional Crime (1), and Wisconsin (15) in 2019 and of compounds known as substituted Laboratory, suspected heroin/fentanyl 2020. NFLIS was queried on August 18, piperidine benzimidazolones. The powders were analyzed and found to be 2020, for brorphine. Due to the rapid general synthesis of brorphine was first brorphine in combination with appearance of the drug, brorphine is reported in the literature in 2018. flualprazolam, a non-scheduled most likely under reported as forensic benzodiazepine, and diphenhydramine, laboratories secure reference standards Brorphine is not an approved 5 pharmaceutical product and is not an over-the-counter antihistamine. for the confirmative identification and approved for medical use anywhere in Post-mortem toxicology samples reporting of this substance. the world. The Assistant Secretary, by a collected and submitted to National The population likely to abuse letter to DEA dated October 27, 2020, Medical Services (NMS) Laboratory 6 in brorphine appears to be the same as stated that there are no FDA-approved June and July 2020 verified the those abusing prescription opioid new drug applications or investigational appearance of brorphine. Brorphine was analgesics, heroin, tramadol, fentanyl, new drug applications for brorphine in first reported by the Center for Forensic and other synthetic opioid substances. the United States; hence, there is no Science Research and Education This is evidenced by the types of other legitimate channel for brorphine as a (CFSRE)—Novel Psychoactive drugs co-identified in samples obtained marketed drug product. The appearance Substance (NPS) Discovery Program from brorphine seizures and post- of brorphine on the illicit drug market (under the novel psychoactive mortem toxicology reports. Because is similar to other designer drugs substances discovery program, in abusers of brorphine are likely to obtain trafficked for their psychoactive effects. collaboration with NMS Labs) in July it through unregulated sources, the Since 2014, numerous synthetic 2020. In seven post-mortem toxicology identity, purity, and quantity of opioids structurally related to fentanyl reports in June 2020 and July 2020, brorphine are uncertain and and several synthetic opioids from other brorphine was found in combination inconsistent, thus posing significant structural classes have begun to emerge with fentanyl, flualprazolam, and adverse health risks to the end user. The on the illicit drug market as evidenced heroin. Evidence suggests that misuse and abuse of opioids have been by the identification of these drugs in individuals are using brorphine as a demonstrated and are well- forensic drug exhibits and toxicology replacement to heroin or other opioids, characterized. According to the most either knowingly or unknowingly. recent data from the National Survey on samples. Beginning in June 2019, 7 brorphine emerged in the U.S. illicit, Drug Use and Health (NSDUH), as of Factor 5. Scope, Duration, and 2018, an estimated 10.3 million people synthetic drug market as evidenced by Significance of Abuse brorphine’s identification in drug aged 12 years or older misused opioids seizures. Between July and September of Brorphine has been described as a in the past year, including 9.9 million 2019, brorphine was first reported in potent synthetic opioid and evidence prescription pain reliever misusers and drug casework in Canada and was first suggests it is being abused for its 808,000 heroin users. In 2018, an reported in police seizures in Sweden in opioidergic effects (see Factor 6). estimated 2 million people had an March 2020.3 According to a recent publication by opioid use disorder which included 1.7 Brorphine has been encountered by CFSRE—NPS Discovery, brorphine has million people with a prescription pain U.S. law enforcement in powder form. been positively identified in seven reliever use disorder and 500,000 In the United States, brorphine has been death investigation cases spanning people with heroin use disorder. This identified as a single substance and in between June 2020 and July 2020. These population abusing opioids is likely to combination with other substances. cases correspond to three states— be at risk of abusing brorphine. Twenty reports of brorphine have been Illinois (3), Minnesota (3), and Arizona Individuals who initiate use (i.e., use a reported in the National Forensic (1). Most (n = 6) of the decedents were drug for the first time) of brorphine are Laboratory Information System (NFLIS) male. The decedents’ ages ranged likely to be at risk of developing in 2019 and 2020 from three different between 40’s and 60’s with an average substance use disorder, overdose, and states (see Factor 5).4 In several NFLIS age of 52 years. Other substances death similar to that of other opioid encounters, brorphine was found in identified in postmortem blood analgesics (e.g., fentanyl, morphine, combination with heroin (a schedule I specimens obtained from these etc.). Law enforcement reports decedents include flualprazolam, a demonstrate that brorphine is being 3 Health Canada Drug Analysis Service (2019); nonscheduled benzodiazepine (n = 5), illicitly distributed and abused. Analyzed Drug Report Canada 2019—Q3 (July to fentanyl, a schedule II substance (n = 7), September); European Monitoring Centre for Drugs 7 The National Survey on Drug Use and Health and Drug Addiction (EMCDDA) (2020); EU Early and heroin, a schedule I substance (n = (NSDUH), formerly known as the National Warning System Situation Report, Situation report 4). The appearance of benzodiazepines Household Survey on Drug Abuse (NHSDA), is 1—June 2020. and other opioids is common with conducted annually by the Department of Health 4 NFLIS represents an important resource in polysubstance abuse. and Human Services Substance Abuse and Mental monitoring illicit drug trafficking, including the Health Services Administration (SAMHSA). It is the diversion of legally manufactured pharmaceuticals primary source of estimates of the prevalence and into illegal markets. NFLIS-Drug is a comprehensive 5 Email communications with Northeastern incidence of nonmedical use of pharmaceutical information system that includes data from forensic Illinois Regional Crime Laboratory, dated 7/1/2020 drugs, illicit drugs, alcohol, and tobacco use in the laboratories that handle the nation’s drug analysis and 6/11/2020. United States. The survey is based on a nationally cases. NFLIS-Drug participation rate, defined as the 6 NMS Labs, in collaboration with the Center for representative sample of the civilian, non- percentage of the national drug caseload Forensic Science Research and Education at the institutionalized population 12 years of age and represented by laboratories that have joined NFLIS, Fredric Rieders Family Foundation and the older. The survey excludes homeless people who is currently 98.5 percent. NFLIS includes drug Organized Crime Drug Enforcement Task Force at do not use shelters, active military personnel, and chemistry results from completed analyses only. the United States Department of Justice, has residents of institutional group quarters such as While NFLIS data is not direct evidence of abuse, received funding from the Centers for Disease jails and hospitals. The NSDUH provides yearly it can lead to an inference that a drug has been Control and Prevention to develop systems for the national and state level estimates of drug abuse, and diverted and abused. See 76 FR 77330, 77332, early identification and notification of novel includes prevalence estimates by lifetime (i.e., ever December 12, 2011. NFLIS data was queried on psychoactive substances in the drug supply within used), past year, and past month abuse or August 18, 2020. the United States. dependence.

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Factor 6. What, if Any, Risk There Is to Minnesota. Information gathered from imminent hazard to the public safety, the Public Health case history findings shows that the temporary order scheduling this The increase in opioid overdose brorphine use is similar to that of classic substance will be effective on the date deaths in the United States has been opioid agonists. As documented by the order is published in the Federal exacerbated recently by the availability toxicology reports, poly-substance abuse Register, and will be in effect for a of potent synthetic opioids on the illicit remains common in fatalities associated period of two years, with a possible drug market. Data obtained from pre- with the abuse of brorphine. extension of one additional year, pending completion of the regular clinical studies demonstrate that Finding of Necessity of Schedule I (permanent) scheduling process. 21 brorphine exhibits a pharmacological Placement To Avoid Imminent Hazard U.S.C. 811(h)(1) and (2). It is the profile similar to that of other mu (m)- to Public Safety intention of the Acting Administrator to opioid receptor agonists. Data from in In accordance with 21 U.S.C. issue a temporary scheduling order as vitro studies completed in 2020 showed 811(h)(3), based on the available data soon as possible after the expiration of that brorphine binds to and activates the and information summarized above, the 30 days from the date of publication of m-opioid receptors. In the [35S]GTPgS uncontrolled manufacture, distribution, this document. Upon publication of the cell-based receptor assay, brorphine, reverse distribution, importation, temporary order, brorphine will then be similar to fentanyl, acted as a m-opioid exportation, conduct of research and subject to the CSA’s schedule I receptor agonist. Brorphine’s activation chemical analysis, possession, and regulatory controls and administrative, of m-opioid receptor was also shown to abuse of brorphine pose an imminent civil, and criminal sanctions applicable involve recruitment of beta-arrestin-2, a hazard to the public safety. DEA is not to the manufacture, distribution, reverse regulatory protein whose interaction aware of any currently accepted medical distribution, importation, exportation, m with the -opioid receptor has been uses for brorphine in the United States. research, conduct of instructional implicated in the adverse effects of m- A substance meeting the statutory activities and chemical analysis, and opioid receptor activation. Brorphine requirements for temporary scheduling, possession. binds to and activates the m-opioid found in 21 U.S.C. 811(h)(1), may only The CSA sets forth specific criteria for receptor and has efficacy on scale with be placed in schedule I. Substances in scheduling a drug or other substance. fentanyl. It is well established that schedule I are those that have a high Regular scheduling actions in substances that act as m-opioid receptor potential for abuse, no currently accordance with 21 U.S.C. 811(a) are agonists have a high potential for accepted medical use in treatment in the subject to formal rulemaking procedures addiction and can induce dose- United States, and a lack of accepted done ‘‘on the record after opportunity dependent respiratory depression. safety for use under medical for a hearing’’ conducted pursuant to As with any m-opioid receptor agonist, supervision. Available data and the provisions of 5 U.S.C. 556 and 557. the potential health and safety risks for information for brorphine indicate that 21 U.S.C. 811. The regular scheduling users of brorphine are high. The public this substance has a high potential for process of formal rulemaking affords health risks associated to the abuse of abuse, no currently accepted medical interested parties with appropriate heroin and other m-opioid receptor use in treatment in the United States, process and the government with any agonists are well established and have and a lack of accepted safety for use additional relevant information needed resulted in large numbers of drug under medical supervision. As required to make a determination. Final treatment admissions, emergency by 21 U.S.C. 811(h)(4), the Acting decisions that conclude the regular department visits, and fatal overdoses. Administrator, through a letter dated scheduling process of formal According to the Centers for Disease September 22, 2020, notified the rulemaking are subject to judicial Control and Prevention (CDC), opioids, Assistant Secretary of DEA’s intention review. 21 U.S.C. 877. Temporary mainly synthetic opioids other than to temporarily place brorphine in scheduling orders are not subject to methadone, are predominantly schedule I. judicial review. 21 U.S.C. 811(h)(6). responsible for drug overdose deaths in recent years. A CDC report shows that, Conclusion Regulatory Analyses from 2013 to 2018, opioid-related This notice of intent provides the 30- The CSA provides for a temporary overdose deaths in the United States day notice pursuant to 21 U.S.C. scheduling action where such action is increased from 25,052 to 46,802. Of the 811(h)(1) of DEA’s intent to issue a necessary to avoid an imminent hazard drug overdose deaths for 2018, opioids temporary scheduling order. In to the public safety. 21 U.S.C. 811(h)(1). were involved in about 69.5 percent of accordance with 21 U.S.C. 811(h)(1) and As provided in this subsection, the all drug-involved overdose deaths. (3), the Acting Administrator considered Administrator (as delegated by the In the United States, the abuse of available data and information, herein Attorney General) may, by order, opioid analgesics has resulted in large set forth the grounds for his schedule a substance in schedule I on a numbers of treatment admissions, determination that it is necessary to temporary basis. Such an order may not emergency department visits, and fatal temporarily schedule brorphine in be issued before the expiration of 30 overdoses. The introduction of potent schedule I of the CSA, and finds that days from: (1) The publication of a synthetic opioids such as brorphine into placement of this substance in schedule notice in the Federal Register of the the illicit market may serve as a portal I of the CSA is necessary in order to intention to issue such order and the to problematic opioid use for those avoid an imminent hazard to the grounds upon which such order is to be seeking these powerful opioids. public’s safety. issued, and (2) the date that notice of Brorphine has been co-identified with The temporary placement of the proposed temporary scheduling other substances in seven post-mortem brorphine in schedule I of the CSA will order is transmitted to the Secretary of toxicology cases in June and July of take effect pursuant to a temporary HHS. 2020. These substances include other scheduling order, which will not be Inasmuch as 21 U.S.C. 811(h)(1) opioids such as fentanyl and heroin, issued before January 4, 2021. Because directs that temporary scheduling and other substance classes such as the Acting Administrator hereby finds actions be issued by order and sets forth benzodiazepines. These deaths occurred that it is necessary to temporarily place the procedures by which such orders are in three states: Illinois, Arizona, and brorphine in schedule I to avoid an to be issued, including the requirement

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of a publication in the Federal Register (including potential economic, § 1308.11 Schedule I of a notice of intent, the notice-and- environmental, public health, and safety * * * * * comment requirements of section 553 of effects; distributive impacts; and (h) * * * the Administrative Procedure Act equity). E.O. 13563 is supplemental to (49) 1-(1-(1-(4-bromophenyl) (APA), 5 U.S.C. 553, do not apply to this and reaffirms the principles, structures, ethyl)piperidin-4-yl)-1,3-dihydro- notice of intent. The APA expressly and definitions governing regulatory 2H-benzo[d]imidazol-2-one, its differentiates between an order and a review as established in E.O. 12866. isomers, esters, ethers, salts and rule, as it defines an ‘‘order’’ to mean a E.O. 12866 classifies a ‘‘significant salts of isomers, esters and ethers ‘‘final disposition, whether affirmative, regulatory action,’’ requiring review by (Other names: brorphine; 1-[1-[1- negative, injunctive, or declaratory in the Office of Management and Budget (4-bromophenyl)ethyl]-4- form, of an agency in a matter other (OMB), as any regulatory action that is piperidinyl]-1,3-dihydro-2H- benzimidazol-2-one) ...... 9098 than rule making.’’ 5 U.S.C. 551(6) likely to result in a rule that may: (1) (emphasis added). The specific language Have an annual effect on the economy * * * * * chosen by Congress indicates an of $100 million or more or adversely Timothy J. Shea, intention for DEA to proceed through affect in a material way the economy; a Acting Administrator. the issuance of an order instead of sector of the economy; productivity; proceeding by rulemaking. Given that competition; jobs; the environment; [FR Doc. 2020–26301 Filed 12–2–20; 8:45 am] Congress specifically requires the public health or safety; or State, local, BILLING CODE 4410–09–P Administrator to follow rulemaking or tribal governments or communities; procedures for other kinds of scheduling (2) create a serious inconsistency or actions, see 21 U.S.C. 811(a), it is otherwise interfere with an action taken ENVIRONMENTAL PROTECTION noteworthy that, in 21 U.S.C. 811(h)(1), or planned by another agency; (3) AGENCY Congress authorized the issuance of materially alter the budgetary impact of 40 CFR Part 52 temporary scheduling actions by order entitlements, grants, user fees, or loan rather than by rule. programs, or the rights and obligations [EPA–R09–OAR–2020–0534; FRL–10016– In the alternative, even assuming that of recipients thereof; or (4) raise novel 98–Region 9] this notice of intent might be subject to legal or policy issues arising out of legal section 553 of the APA, the Acting mandates, the President’s priorities, or Approval and Promulgation of Air Administrator finds that there is good the principles set forth in the Executive Quality State Implementation Plans; cause to forgo the notice-and-comment Order. Because this is not a rulemaking California; Plumas County; Moderate requirements of section 553, as any action, this is not a significant Area Plan for the 2012 PM2.5 NAAQS further delays in the process for regulatory action as defined in Section issuance of temporary scheduling orders AGENCY: Environmental Protection 3(f) of E.O. 12866. In addition, this Agency (EPA). would be impracticable and contrary to action does not meet the definition of an ACTION: Proposed rule. the public interest in view of the E.O. 13771 regulatory action, and the manifest urgency to avoid an imminent repeal and cost offset requirements of SUMMARY: The Environmental Protection hazard to the public safety. E.O. 13771 have not been triggered. Although DEA believes this notice of Agency (EPA) is proposing to approve This action will not have substantial intent to issue a temporary scheduling through parallel processing a state direct effects on the states, on the order is not subject to the notice-and- implementation plan (SIP) revision relationship between the national comment requirements of section 553 of submitted by the State of California to government and the states, or on the the APA, DEA notes that in accordance address Clean Air Act (CAA or ‘‘Act’’) distribution of power and with 21 U.S.C. 811(h)(4), the Acting requirements for the 2012 annual fine responsibilities among the various Administrator took into consideration particulate matter (PM2.5) national comments submitted by the Assistant levels of government. Therefore, in ambient air quality standard (NAAQS or Secretary in response to the notice that accordance with E.O. 13132 ‘‘standard’’) in the Plumas County (Federalism), it is determined that this DEA transmitted to the Assistant Moderate PM2.5 nonattainment area Secretary pursuant to such subsection. action does not have sufficient (‘‘Portola nonattainment area’’). The Further, DEA believes that this federalism implications to warrant the submitted SIP revision is the State’s temporary scheduling action is not a preparation of a Federalism Assessment. ‘‘Proposed Portola PM2.5 Plan ‘‘rule’’ as defined by 5 U.S.C. 601(2), List of Subjects in 21 CFR Part 1308 Contingency Measure SIP Submittal’’ and, accordingly, is not subject to the (‘‘Proposed PM2.5 Plan Revision’’), requirements of the Regulatory Administrative practice and which includes a revised City of Portola procedure, Drug traffic control, Flexibility Act. The requirements for the ordinance regulating PM2.5 emission preparation of an initial regulatory Reporting and recordkeeping sources and the State’s demonstration flexibility analysis in 5 U.S.C. 603(a) are requirements. that this submission meets the Moderate not applicable where, as here, DEA is For the reasons set out above, DEA area contingency measure requirement not required by section 553 of the APA proposes to amend 21 CFR part 1308 as for the 2012 annual PM2.5 NAAQS in the or any other law to publish a general follows: Portola nonattainment area. The EPA is notice of proposed rulemaking. also proposing to approve the In accordance with the principles of PART 1308—SCHEDULES OF contingency measure element of the Executive Orders (E.O.) 12866, 13563, CONTROLLED SUBSTANCES Moderate area attainment plan for the and 13771, this notice of intent is not ■ 1. The authority citation for part 1308 Portola nonattainment area, as revised a significant regulatory action. E.O. continues to read as follows: and supplemented by the Proposed 12866 directs agencies to assess all costs PM2.5 Plan Revision. Because the EPA is and benefits of available regulatory Authority: 21 U.S.C. 811, 812, 871(b), proceeding by parallel processing, the alternatives and, if regulation is 956(b), unless otherwise noted. agency is proposing, in the alternative, necessary, to select regulatory ■ 2. In § 1308.11, add paragraph (h)(49) to disapprove the contingency measure approaches that maximize net benefits to read as follows: element of the Moderate area attainment

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plan if the State does not submit the I. Background The Portola PM2.5 nonattainment area final, adopted PM2.5 Plan Revision in includes the City of Portola (‘‘Portola’’), substantially the same form before we On January 15, 2013, the EPA which has a population of take final action. strengthened the primary annual approximately 2,100 and is located at an NAAQS for particulate matter with a elevation of 4,890 feet in an DATES: Any comments on this proposal diameter of 2.5 microns or less by intermountain basin isolated by rugged must be received by January 4, 2021. lowering the level from 15.0 micrograms mountains. For a precise description of per cubic meter (mg/m3) to 12.0 mg/m3 ADDRESSES: Submit your comments, 1 the geographic boundaries of the Portola (‘‘2012 PM2.5 NAAQS’’). The EPA identified by Docket ID No. EPA–R09– PM2.5 nonattainment area, see 40 CFR established this standard after OAR–2020–0534 at https:// 81.305. considering substantial evidence from www.regulations.gov, or via email to Portola averages 20 inches of numerous health studies demonstrating [email protected]. For comments precipitation annually. From October that serious health effects are associated submitted at Regulations.gov, follow the through March the Portola with exposures to PM concentrations online instructions for submitting 2.5 nonattainment area has very cold above these levels. comments. Once submitted, comments temperatures with an average daily low cannot be edited or removed from Epidemiological studies have shown temperature of approximately 22 Regulations.gov. For either manner of statistically significant correlations degrees Fahrenheit. The combination of submission, the EPA may publish any between elevated PM2.5 levels and mountainous terrain, cold temperatures, comment received to its public docket. premature mortality. Other important and elevation can cause atmospheric health effects associated with PM2.5 Do not submit electronically any inversions and impair PM2.5 dispersion, information you consider to be exposure include aggravation of especially during the winter. Confidential Business Information (CBI) respiratory and cardiovascular disease The local air district with primary or other information whose disclosure is (as indicated by increased hospital responsibility for developing a plan to admissions, emergency room visits, restricted by statute. Multimedia attain the 2012 annual PM2.5 NAAQS in submissions (e.g., audio or video) must absences from school or work, and this area is the Northern Sierra Air be accompanied by a written comment. restricted activity days), changes in lung Quality Management District (NSAQMD The written comment is considered the function, and increased respiratory or ‘‘District’’). The District worked official comment and should include symptoms. Individuals particularly cooperatively with the California Air discussion of all points you wish to sensitive to PM2.5 exposure include Resources Board (CARB) in preparing older adults, people with heart and lung make. The EPA will generally not the Proposed PM2.5 Plan Revision. 2 consider comments or comment disease, and children. PM2.5 can be Under state law, authority for regulating contents located outside of the primary emitted directly into the atmosphere as sources under state jurisdiction in the submission (i.e., on the web, cloud, or a solid or liquid particle (‘‘primary Portola nonattainment area is split other file sharing system). For PM2.5’’ or ‘‘direct PM2.5’’) or can be between the District, which has additional submission methods, please formed in the atmosphere (‘‘secondary responsibility for regulating stationary contact the person identified in the FOR PM2.5’’) as a result of various chemical and most area sources, and CARB, FURTHER INFORMATION CONTACT section reactions among precursor pollutants which has responsibility for regulating for additional availability information. If such as nitrogen oxides, sulfur oxides, most mobile sources. you need assistance in a language other volatile organic compounds, and On February 28, 2017, California 3 than English or if you are a person with ammonia. submitted the ‘‘Portola Fine Particulate disabilities who needs a reasonable Following promulgation of a new or Matter (PM2.5) Attainment Plan’’ accommodation at no cost to you, please revised NAAQS, the EPA is required by (‘‘Portola PM2.5 Plan’’ or ‘‘Plan’’) to contact the person identified in the FOR CAA section 107(d) to designate areas address the CAA’s Moderate area FURTHER INFORMATION CONTACT section. throughout the nation as attaining or not requirements for the 2012 annual PM2.5 attaining the NAAQS. The EPA NAAQS in the Portola nonattainment FOR FURTHER INFORMATION CONTACT: John designated and classified the Portola area. On March 25, 2019, the EPA Ungvarsky, Air Planning Office (AIR–2), nonattainment area as ‘‘Moderate’’ approved all of the Portola PM Plan, EPA Region IX, 75 Hawthorne Street, 2.5 nonattainment for the 2012 annual except for the contingency measure San Francisco, CA 94105, (415) 972– PM2.5 standards based on ambient element.6 The components of the 3963 or [email protected]. monitoring data that showed the area Portola PM2.5 Plan that the EPA SUPPLEMENTARY INFORMATION: was above 12.0 mg/m3 for the 2011–2013 approved include the modeled Throughout this document, ‘‘we,’’ ‘‘us,’’ monitoring period.4 For the 2011–2013 demonstration that the area will attain or ‘‘our’’ refer to the EPA. period, the annual PM2.5 design value the 2012 annual PM2.5 NAAQS by the for the Portola area was 12.8 mg/m3 applicable attainment date, which is Table of Contents based on monitored readings at the 161 December 31, 2021; the State and I. Background Nevada Street and 420 Gulling Street District control strategy for attaining the 5 II. Summary of the Proposed PM2.5 Plan monitors. NAAQS by this date, including all Revision reasonably available control measures III. Clean Air Act Requirements for PM2.5 1 78 FR 3086 and 40 CFR 50.18. Unless otherwise and control technologies (RACM/RACT) Contingency Measures and Other Control noted, all references to the PM2.5 NAAQS in this and additional reasonable measures Measures document are to the 2012 annual NAAQS of 12.0 3 necessary for expeditious attainment; IV. Completeness Review of the Proposed mg/m codified at 40 CFR 50.18. 2 Id. the reasonable further progress (RFP) PM2.5 Plan Revision 3 demonstration and related quantitative V. Review of the Proposed PM Plan EPA, Air Quality Criteria for Particulate Matter, 2.5 No. EPA/600/P–99/002aF and EPA/600/P–99/ Revision milestones for the October 15, 2019 and 002bF, October 2004. October 15, 2022 quantitative milestone VI. Proposed Actions and Request for Public 4 80 FR 2206 (January 15, 2015). 5 dates applicable to the area; and the Comment From 2000 through early 2013, the Portola PM2.5 VII. Incorporation by Reference monitoring site was located at 161 Nevada Street. VIII. Statutory and Executive Order Reviews In 2013, the site was relocated to 420 Gulling Street. 6 84 FR 11208.

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motor vehicle emissions budgets for incentivize certain types of wood stove 344 in the SIP with City Ordinance No. 2019 and 2021.7 change-outs as contingency measures 359.18 13 As part of the attainment control for the 2012 annual PM2.5 NAAQS. On October 26, 2020, the District strategy, the Portola PM2.5 Plan relies on The EPA did not act on this element of Governing Board adopted City ‘‘Ordinance No. 344: An Ordinance of the Portola PM2.5 Plan as part of its Ordinance No. 359 and, through the City of Portola, County of Plumas March 25, 2019 final action.14 Resolution 2020–09, instructed the Amending Chapter 15.10 of the City of On May 22, 2019, the Center for District to submit City Ordinance No. Portola Municipal Code Providing for Biological Diversity filed a complaint in 359 to CARB for inclusion in the SIP.19 Regulation of Wood Stoves and the United States District Court for the On October 28, 2020, CARB submitted Fireplaces’’ (‘‘City Ordinance No. 344’’) Northern District of California alleging City Ordinance No. 359, together with a to achieve direct PM2.5 emission that the EPA had, among other things, document entitled ‘‘Proposed Portola reductions necessary for attainment by failed to take final action either PM2.5 Plan Contingency Measure SIP the December 31, 2021 attainment date. approving or disapproving the Submittal,’’ October 16, 2020 (hereafter The EPA approved City Ordinance No. contingency measure element of the ‘‘CARB Staff Report’’), to the EPA with 8 344 into the SIP on March 5, 2018. The Portola PM2.5 Plan. On February 19, a request for approval into the SIP attainment control strategy in the 2020, the court issued an order through the EPA’s parallel processing Portola PM2.5 Plan also relies on an directing, inter alia, that the EPA ‘‘sign procedures in 40 CFR part 51, appendix enforceable State commitment to a notice of final rulemaking to approve, V, section 2.3.20 We refer to City implement an incentive grant program disapprove, conditionally approve, or Ordinance No. 359 and the CARB Staff called the ‘‘Greater Portola Woodstove approve in part and conditionally Report together as the ‘‘Proposed PM2.5 Change-out Program 2016’’ (‘‘Wood approve or disapprove in part’’ the Plan Revision.’’ CARB has scheduled Stove Program’’) during the 2016 to contingency measure element of the the Proposed PM2.5 Plan Revision for a 2021 period to fund the replacement of Portola PM2.5 Plan, under CAA sections hearing before the CARB Governing uncertified wood stoves with newer, 110(k)(2)-(4), no later than March 1, Board on November 19, 2020, and if it EPA-certified devices and to educate 2021.15 is then adopted, CARB will submit the residents on proper ways to store and final PM2.5 Plan Revision to the EPA for burn wood. The EPA approved the II. Summary of the Proposed PM2.5 Plan approval into the California SIP.21 Wood Stove Program into the SIP on Revision 9 III. Clean Air Act Requirements for April 2, 2018. On September 9, 2020, the City of PM Contingency Measures and Other City Ordinance No. 344 and the 2.5 Portola adopted ‘‘Ordinance No. 359, Control Measures District’s Wood Stove Program An Ordinance of the City of Portola, collectively establish most of the County of Plumas Amending Chapter A. Requirements for Contingency recommended program elements 15.10 of the City of Portola Municipal Measures outlined in the EPA’s guidance Code Providing for Regulation of Wood Under CAA section 172(c)(9) and the document entitled ‘‘Strategies for Stoves and Fireplaces and the EPA’s implementing regulations for the Reducing Residential Wood Smoke,’’ 10 Prohibition of the Open Burning of Yard PM2.5 NAAQS (‘‘PM2.5 SIP Requirements including a wood burning curtailment Waste’’ (‘‘City Ordinance No. 359’’). City Rule’’),22 each SIP submission for a program in section 15.10.060 of City Ordinance No. 359 amends City nonattainment area must include Ordinance No. 344 (Mandatory Ordinance No. 344, as codified in contingency measures to be Curtailment of Wood Burning Heaters, Chapter 15.10 of the Portola Municipal implemented if the area fails to meet Wood Burning Fireplaces, Wood-Fired Code.16 requirements concerning RFP, fails to Fire Pits and Wood-Fired Cookstoves Specifically, section 15.10.070 meet requirements concerning 11 During Stagnant Conditions). The (Curtailment Levels and Period) of City quantitative milestones, or fails to attain Portola PM2.5 Plan relies primarily on Ordinance No. 359 contains a the NAAQS by the applicable the Wood Stove Program to achieve the contingency measure that revises and attainment date. Contingency measures PM2.5 emission reductions necessary for supplements the contingency measure must be fully adopted rules or control the Portola nonattainment area to attain element of the Portola PM2.5 Plan. City measures that are ready to be the 2012 annual PM2.5 NAAQS by Ordinance No. 359 also contains new implemented quickly upon being 12 December 31, 2021. provisions that ban all open burning of triggered and that take effect without The Portola PM2.5 Plan also contains yard waste and debris within the City of significant further action by the State or a contingency measure element in Portola, with limited exceptions, and the EPA.23 The purpose of the section VI.B that identifies the wood- renumbers several sections of the prior contingency measures is to continue burning curtailment provision in section version of this ordinance (City progress in reducing emissions while a 15.10.060 of City Ordinance No. 344 Ordinance No. 354) without change.17 and a District policy designed to The additional open burning provisions 18 NSAQMD, Resolution 2020–09 (October 26, in City Ordinance No. 359 are not part 2020). 7 Id. of the contingency measure element of 19 Id. Resolution 2020–09 instructs the District to 8 83 FR 9213. the Plan. CARB has requested that the exclude paragraph 15.10.060(B) (concerning 9 83 FR 13871. EPA entirely replace City Ordinance No. penalties), section 15.10.100 (Violations), and 10 EPA, ‘‘Strategies for Reducing Residential section 15.10.110 (Continuing violations—each day Wood Smoke,’’ Publication No. EPA–456/B–13– being a separate violation) from the SIP submission. 13 001, revised March 2013. Portola PM2.5 Plan, 72–74 (section VI.B, 20 Letter dated October 28, 2020, from Richard 11 83 FR 64774, 64782 (December 18, 2018) ‘‘Contingency Measure’’). Corey, Executive Officer, CARB, to John Busterud, 14 (proposed action on Portola PM2.5 Plan) and EPA, 84 FR 11208. Regional Administrator, EPA Region IX, with Region IX, ‘‘Technical Support Document for the 15 Center for Biological Diversity, et al. v. Andrew enclosures. Although both the City and the District EPA’s Rulemaking for the California State Wheeler, Case No. 3:19-cv-02782–EMC, Order (N.D. have adopted City Ordinance No. 359, CARB has Implementation Plan, Northern Sierra Air Quality Cal., February 19, 2020). not yet adopted it. Management District, City of Portola Ordinance 16 NSAQMD, Resolution 2020–09 (October 26, 21 Id. 344, Wood Stove and Fireplace Ordinance,’’ July 2020). 22 81 FR 58010 (August 24, 2016), codified at 40 2017 (‘‘Ordinance 344 TSD’’), 6. 17 City of Portola, Ordinance No. 359, adopted CFR part 51, subpart Z. 12 83 FR 64774, 64788 (December 18, 2018). September 9, 2020. 23 81 FR 58010, 58066 and Addendum, 42015.

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state revises its SIP to meet a missed as contingency measures.26 The Ninth public comment process under state RFP requirement, to meet a missed Circuit concluded that contingency law. The EPA reviews this proposed quantitative milestone requirement, or measures must be measures that would state action and prepares a notice of to correct ongoing nonattainment. take effect at the time the area fails to proposed rulemaking under Federal Under the PM2.5 SIP Requirements make RFP or to attain by the applicable law. In some cases, the EPA publishes Rule, contingency measures must be attainment date, not before.27 Thus, its notice of proposed rulemaking in the implemented following a determination within the geographic jurisdiction of the Federal Register during the same time by the EPA that the state has failed: (1) Ninth Circuit, states cannot rely on frame that the state is holding its own To meet any RFP requirement in the already implemented measures to public hearing and public comment approved SIP; (2) to meet any comply with the contingency measure process. The state and the EPA then quantitative milestone in the approved requirement under CAA section provide for concurrent public comment SIP; (3) to submit a required quantitative 172(c)(9). periods on both the state action and milestone report; or (4) to attain the To comply with section 172(c)(9), as Federal action on the initial SIP applicable PM2.5 NAAQS by the interpreted in the Bahr decision, a state submission from the state. If, after applicable attainment date.24 The must develop, adopt, and submit completing its public comment process contingency measures adopted as part of contingency measures to be triggered and after the EPA’s public comment a PM2.5 attainment plan must consist of upon a failure to meet an RFP process has run, the state materially control measures for the area that are milestone, failure to meet requirements changes its final SIP submission to the not otherwise required to meet other concerning quantitative milestones, or EPA from the initial proposed nonattainment plan requirements (e.g., failure to attain the NAAQS by the submission, the EPA evaluates those to meet RACM/RACT requirements) and applicable attainment date regardless of changes and decides whether to publish must specify the timeframe within the extent to which already- another notice of proposed rulemaking which their requirements become implemented measures would achieve in light of those changes or to proceed effective following any of the EPA surplus emission reductions beyond to taking final action on its proposed determinations specified in 40 CFR those necessary to meet RFP or action and describe the state’s changes 51.1014(a). quantitative milestone requirements and in its final rulemaking action. Any final Neither the CAA nor the EPA’s beyond those projected to achieve rulemaking action by the EPA will occur implementing regulations establish a attainment of the NAAQS. only after the state formally adopts and specific level of emission reductions B. General Requirements for SIP Control submits its final submission to the EPA. Section 110(k)(1)(B) of the CAA that implementation of contingency Measures measures must achieve, but EPA requires the EPA to determine whether guidance recommends that contingency SIP control measures and revisions a SIP submission is complete within 60 28 measures should provide for emission thereto must be enforceable, must not days of receipt. This section also reductions equivalent to approximately interfere with applicable requirements provides that if the EPA has not concerning attainment and RFP or other affirmatively determined a SIP one year of reductions needed for RFP, 29 calculated as the overall level of CAA requirements, and must not submission to be complete or reductions needed to demonstrate modify certain SIP control requirements incomplete, it will become complete by attainment divided by the number of in nonattainment areas without operation of law six months after the years from the base year to the ensuring equivalent or greater emissions date of submission. The EPA’s SIP reductions.30 Generally, in PM attainment year. In general, we expect 2.5 completeness criteria are found in 40 nonattainment areas classified as all actions needed to effect full CFR part 51, appendix V. The EPA has Moderate, SIP control measures must implementation of the contingency reviewed the Proposed PM2.5 Plan also implement RACM, including measures to occur within 60 days after Revision and finds that it fulfills the RACT, and additional reasonable the EPA notifies the state of a failure to completeness criteria of appendix V, measures.31 attain or to meet an RFP or quantitative with the exception of the requirements milestone requirement.25 IV. Completeness Review of the of paragraphs 2.1(e)–2.1(h), which do not apply to plans submitted for parallel It has been the EPA’s longstanding Proposed PM2.5 Plan Revision processing. interpretation of section 172(c)(9) that On October 28, 2020, CARB submitted states may rely on existing Federal CAA sections 110(a)(1) and (2) and the Proposed PM2.5 Plan Revision with 110(l) require each state to provide measures (e.g., Federal mobile source a request that the EPA approve the measures based on the incremental reasonable public notice and submission into the SIP through the opportunity for public hearing prior to turnover of the motor vehicle fleet each parallel processing procedures in 40 year) and state or local SIP measures the adoption and submission of a SIP CFR part 51, appendix V, section 2.3. submission to the EPA. To meet this already scheduled for implementation Parallel processing refers to a process that provide emissions reductions in requirement, a state’s SIP submission that utilizes concurrent state and must include evidence that the state excess of those needed to meet any Federal proposed rulemaking actions. other nonattainment plan requirements, provided adequate public notice and an Generally, the state submits a copy of opportunity for a public hearing, such as RACM/RACT, RFP, or the proposed regulation or other consistent with the EPA’s implementing expeditious attainment requirements. In revisions to the EPA before conducting regulations in 40 CFR 51.102. However, Bahr v. EPA (‘‘Bahr’’), however, the its public hearing and completing its because the Proposed PM Plan Ninth Circuit Court of Appeals rejected 2.5 Revision was submitted for parallel the EPA’s interpretation of CAA section 26 Bahr v. EPA, 836 F.3d 1218, 1235–1237 (9th processing, it is exempt from this 172(c)(9) as allowing for approval of Cir. 2016). requirement at the time of initial already implemented control measures 27 Id. submission to the EPA, pursuant to 40 28 CAA section 110(a)(2)(A). CFR part 51, appendix V, section 2.3.1. 24 40 CFR 51.1014(a). 29 CAA section 110(l). 25 81 FR 58010, 58066. See also General 30 CAA section 193. CARB and the District are required to Preamble, 13512, 13543–13544, and Addendum, 31 CAA sections 172(c)(1) and 189(a)(1)(C) and 40 meet these procedural criteria during 42014–42015. CFR 51.1009. the parallel processing period, and prior

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to adopting and submitting the final SIP ‘‘Step 2’’ emission limits in the EPA’s disbursement of 2019 Targeted Airshed submission to the EPA. The EPA will new source performance standards Grant funds to weatherize 30 homes in determine whether the final submission (NSPS) for wood heating devices.36 the Portola nonattainment area.42 CARB meets these requirements at the time of City Ordinance No. 359 contains a estimates that the emission reductions any final action on the PM2.5 Plan new contingency measure that revises that will result from implementation of Revision. and supplements the contingency these other measures and programs, measure element of the Portola PM2.5 together with the emission reductions V. Review of the Proposed PM2.5 Plan Plan.37 The new provision, in section that would result from implementation Revision 15.10.070 of City Ordinance No. 359, of the contingency measure in City A. Revised Contingency Measure would strengthen the mandatory Ordinance No. 359, will achieve a total Element of Portola PM2.5 Plan curtailment provision in SIP-approved of 0.0087 tpd of direct PM2.5 reductions City Ordinance No. 344 and would in 2022. The contingency measure element in become effective within 60 days after B. Additional Revisions in City section VI.B of the Portola PM2.5 Plan, the EPA makes any of the four Ordinance No. 359 as submitted February 28, 2017, determinations listed in 40 CFR discusses two potential contingency 51.1014(a).38 Specifically, the The District implements open burning measures for the 2012 PM2.5 NAAQS: (1) mandatory curtailment provision in requirements in NSAQMD rules 300— The mandatory wood-burning section 15.10.070 of City Ordinance No. 317 that apply to a variety of area curtailment provision in section 359 would prohibit the use of wood sources such as agricultural burning, 15.10.060 of SIP-approved City burning heaters, wood burning forest burning, range improvement, and Ordinance No. 344; and (2) a District fireplaces, wood-fired fire pits, and residences.43 Neither these rules nor ‘‘policy’’ to incentivize only certain wood-fired cookstoves within city limits City Ordinance No. 344, however, types of wood stove change-outs whenever the District declares a restrict the open burning of yard waste. following a determination by the mandatory curtailment during the City Ordinance No. 359 contains a new District that the area will not meet the prohibition on the open burning of yard 32 months of September through April, 2019 RFP emission target. The Plan unless it is an approved and currently waste, related definitions, and limited indicates that the District identified registered EPA-certified wood burning exemptions. These provisions are not these measures as potential contingency heater.39 The District would declare a part of the contingency measure element measures because they are not mandatory curtailment whenever it of City Ordinance No. 359 but accounted for in the regional attainment determines that the 24-hour average supplement the existing PM2.5 control demonstration modeling for the 2012 strategy in the Portola nonattainment 33 PM2.5 concentration may exceed 20 mg/ PM2.5 NAAQS. m3 on a given day and adverse area. Specifically, City Ordinance No. The mandatory curtailment provision meteorological conditions are expected 359 contains the following new in SIP-approved City Ordinance No. 344 40 provisions: to persist. CARB estimates that, if • becomes effective January 1, 2021, and triggered, the requirements in section Definitions of the terms ‘‘debris,’’ will prohibit the use of wood burning 15.10.070 of City Ordinance No. 359 ‘‘open burning,’’ ‘‘recreational fire,’’ and heaters, wood burning fireplaces, wood- would achieve reductions in direct ‘‘yard waste’’ (section 15.10.020); • A provision that bans all open fired fire pits and wood-fired cookstoves PM emissions of 0.0024 tons per day 2.5 burning of yard waste and debris within within city limits whenever the District (tpd) in 2022.41 Portola, except as otherwise authorized declares a mandatory curtailment The CARB Staff Report contains the in section 15.10.026 (section 15.10.025); during the months of January, February, State’s quantification of additional November, and December, unless it is and direct PM2.5 emission reductions • Provisions to exempt three types of an approved and currently registered estimated to be achieved in the Portola EPA-certified wood burning heater.34 burning activities from the ban on open nonattainment area in 2022, the year burning: Certain open outdoor fires used The District will declare a mandatory after the December 31, 2021, attainment curtailment whenever it determines that only for cooking or for recreation, date applicable to the Portola ‘‘training burns’’ permitted in advance the 24-hour average PM2.5 concentration nonattainment area. CARB attributes may exceed 30 mg/m3 on a given day by the Fire Chief and the District, and these additional emission reductions to certain health- and safety-related and that adverse meteorological ongoing implementation of the Wood conditions are expected to persist.35 burning activities for which the Fire Stove Program and several other control Chief and the District have issued The District ‘‘policy’’ to incentivize measures and programs that will only certain types of wood stove special burn permits (section 15.10.026). achieve PM2.5 emission reductions change-outs is not associated with a City Ordinance No. 359 would also beyond those emission reductions renumber the following provisions: specific control measure. Section VI.B of necessary for attainment by the the Portola PM Plan states that if the Section 15.10.080 (Outdoor Wood-Fired 2.5 December 31, 2021 attainment date, Boiler Installation Prohibited), located District estimates, by October 31, 2018, including increased participation in a that the area will not meet the 2019 RFP at section 15.10.070 in City Ordinance voluntary curtailment program outside No. 344; section 15.10.090 (Wood Stove emission target, the District will only of the City of Portola and the District’s incentivize the replacement of older Retailers/Contractors Required to Provide Educational Materials), located wood stoves with pellet stoves, propane 36 Portola PM2.5 Plan, 74. at section 15.10.080 in City Ordinance stoves, or wood stoves meeting the 37 Upon the EPA’s final approval of City No. 344; and numerous definitions in Ordinance No. 359, this ordinance (excluding 32 section 15.10.020. These renumbering Portola PM2.5 Plan, 72–74 (section VI.B, paragraph 15.10.060(B) and sections 15.10.100 and ‘‘Contingency Measure’’). The EPA did not act on 15.10.110) will entirely replace City Ordinance No. revisions would not affect the substance the contingency measure element of the Portola 344 in the SIP. NSAQMD, Resolution 2020–09 of these provisions. PM2.5 Plan as part of its March 25, 2019 final action (October 26, 2020), 4 (para. 9). 38 (84 FR 11208). City Ordinance No. 359, section 15.10.070. 42 CARB Staff Report, 10–13. 33 39 Portola PM2.5 Plan, 73. Id. 43 The EPA approved NSAQMD rules 300 to 317 34 City Ordinance No. 344, section 15.10.060. 40 Id. into the SIP on September 16, 1997 (62 FR 48480) 35 Id. 41 CARB Staff Report, 9 (Table 6). and August 19, 1999 (64 FR 45170).

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C. EPA Evaluation quickly upon being triggered and does approximately 0.0085 tpd of direct 47 Section 172(c)(9) of the CAA and EPA not specify the timeframe within which PM2.5 reductions. The CARB Staff Report contains the regulations require states to include its requirements would take effect State’s quantification of the emission contingency measures in nonattainment following any of the EPA reductions anticipated from area plans to address potential failure to determinations specified in 40 CFR implementation of section 15.010.070 of achieve RFP milestones, failure to meet 51.1014(a). City Ordinance No. 359. The State requirements concerning quantitative Thus, the contingency measure estimates that lowering the curtailment milestones, and failure to attain the element of the Portola PM2.5 Plan, as threshold to 20 mg/m3 and extending the NAAQS by the applicable attainment submitted February 28, 2017, fails to potential curtailment period by four date. For purposes of evaluating the satisfy the requirements for contingency months would reduce PM emissions contingency measure element of the measures in CAA section 172(c)(9) and 2.5 by an additional 0.0024 tpd in 2022, the Proposed PM Plan Revision, we find 40 CFR 51.1014. 2.5 year after the attainment year for the it useful to distinguish between 2. Revised Contingency Measure for 2012 PM2.5 NAAQS in the Portola contingency measures to address Attainment Purposes nonattainment area.48 This estimated potential failure to attain the NAAQS City Ordinance No. 359 contains a reduction in emissions from the (‘‘attainment contingency measures’’) new contingency measure that revises contingency measure alone does not and contingency measures to address and supplements the contingency achieve one year’s worth of RFP for the potential failure to achieve RFP measure element of the Portola PM2.5 Portola nonattainment area. However, in milestones or to meet quantitative Plan. The new provision, in section the Proposed PM2.5 Plan Revision CARB milestone requirements (‘‘RFP 15.10.070 of City Ordinance No. 359, provides the larger SIP planning context contingency measures’’). would increase the stringency of the in which to judge the adequacy of the 1. Contingency Measure Element of mandatory curtailment provision in contingency measure by identifying Portola PM2.5 Plan section 15.10.060 of SIP-approved City surplus direct PM2.5 reductions Ordinance No. 344 by lowering the estimated to be achieved in 2022 from The Portola PM Plan, as submitted 2.5 threshold at which the District will other measures. The surplus emission February 28, 2017, identifies the declare a mandatory curtailment from reductions result from already mandatory curtailment provision in SIP- 30 mg/m3 to 20 mg/m3 and by extending implemented measures and programs, approved City Ordinance No. 344 as an the period during which the District including the ongoing implementation attainment contingency measure and may declare such mandatory of the Wood Stove Program (0.0059 tpd), identifies a District ‘‘policy’’ to curtailments from four months (January increased participation in a voluntary incentivize the replacement of older to December) to eight months curtailment program outside of the City wood stoves with only pellet stoves, (September to April).46 This revised of Portola (0.0007 tpd), and the District’s propane stoves, or wood stoves meeting contingency measure would satisfy the disbursement of 2019 Targeted Airshed the ‘‘Step 2’’ emission limits in the requirements of CAA section 172(c)(9) Grant funds to weatherize 30 homes in EPA’s NSPS for wood heating devices as and 40 CFR 51.1014 because it: (i) the Portola nonattainment area (0.0002 an RFP contingency measure.44 Would take effect without significant tpd).49 Because these surplus emission The mandatory curtailment provision further action by the State or the EPA, reductions result from already in section 15.10.060 of City Ordinance if the EPA makes any of the four implemented measures, they cannot No. 344 does not qualify for use as a determinations listed in 40 CFR themselves constitute contingency contingency measure under CAA 51.1014(a); (ii) would consist of control measures. However, these measures section 172(c)(9) because City requirements not otherwise included in provide additional reductions that Ordinance No. 344 is a SIP-approved the attainment control strategy for the CARB believes may be taken into component of the attainment control Portola nonattainment area; and (iii) consideration when evaluating the strategy in the Portola PM Plan.45 2.5 would specify the timeframe within adequacy of the emission reductions Additionally, because this provision which it becomes effective following from the contingency measure. CARB takes effect on January 1, 2021, before any of the EPA determinations listed in estimates that these other control the December 31, 2021 attainment date 40 CFR 51.1014(a). measures and programs, together with and October 15, 2022 RFP milestone We also considered the adequacy of the contingency measure in City date applicable to the area, this measure the contingency measure from the Ordinance No. 359, would achieve a is an already implemented measure that standpoint of the magnitude of emission total of 0.0087 tpd of direct PM cannot be used to comply with the 2.5 reductions the measure would provide section 172(c)(9) contingency measure reductions in 2022. if triggered. Neither the CAA nor the We have reviewed the State’s requirement under the Ninth Circuit’s EPA’s implementing regulations for the emission reduction estimates for 2022, decision in Bahr. PM NAAQS establish a specific as shown in the CARB Staff Report, and The District’s described ‘‘policy’’ for 2.5 amount of emission reductions that find the calculations reasonable. We incentivizing the replacement of older implementation of contingency therefore agree with the State’s wood burning devices with cleaner measures must achieve, but we conclusion that ongoing implementation residential heating devices also does not generally expect that contingency of the measures and programs identified qualify for use as a contingency measure measures should provide for emission by the State in the CARB Staff Report under CAA section 172(c)(9) because it reductions approximately equivalent to is not a fully adopted rule or control 47 one year’s worth of RFP. For the 2012 Portola PM2.5 Plan, 73 (Table 19). measure that is ready to be implemented 48 PM2.5 NAAQS in the Portola CARB Staff Report, 9 (Table 6). 49 CARB Staff Report, 10–13. These emission 44 nonattainment area, one year’s worth of Portola PM2.5 Plan, 74. reductions are surplus to those relied upon in the 45 reductions needed for RFP is 83 FR 64774, 64780–64784 (December 18, control strategy for attaining the 2012 PM2.5 NAAQS 2018) (describing City Ordinance No. 344 and other in the Portola PM2.5 Plan because they occur after 46 control measures in the Portola PM2.5 Plan as RACM Compare City Ordinance No. 359, section the December 31, 2021 attainment date and/or will and additional reasonable measures for the 2012 15.10.070 with City Ordinance No. 344, section be achieved through implementation of measures PM2.5 NAAQS). 15.10.060. adopted after the Plan’s adoption.

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provides surplus emission reductions Because the State and District have education, outreach, and beyond those necessary to demonstrate demonstrated that the Portola implementation and enforcement of attainment by the December 31, 2021, nonattainment area has met its 2019 these and additional programs designed Moderate area attainment date for the quantitative milestones, RFP to further reduce PM2.5 emissions in the 57 2012 annual PM2.5 NAAQS in the contingency measures for the 2019 Portola nonattainment area after 2022. Portola nonattainment area. While such milestone year are no longer needed. In light of these ongoing and additional surplus emission reductions from The sole purpose of RFP contingency reductions in emissions of direct PM2.5, already implemented measures in the measures is to provide continued the emission reductions from the year after the 2021 attainment year progress if an area fails to meet its RFP District’s contingency measure (i.e., cannot constitute contingency measures or quantitative milestone requirements. section 10.050.070 of City Ordinance themselves, we consider them relevant Failure to meet RFP or quantitative No. 359) would be sufficient to meet the in evaluating the adequacy of the milestone requirements for 2019 would 2022 RFP contingency measure emission reductions that will result have required California to implement requirement for the 2012 PM2.5 NAAQS, from the contingency measure that an RFP contingency measure.53 In this even though the measure would achieve CARB has proposed to adopt in order to case, however, the 2019 QM Report emission reductions less than one year’s meet the requirements of section demonstrates that actual emission levels worth of RFP for the area. 172(c)(9). In light of the ongoing in 2019 were consistent with the We note that if the EPA determines reductions in emissions of direct PM2.5 approved 2019 RFP milestone year that the Portola nonattainment area has achieved by the District measures and targets for direct PM2.5 in the Portola failed to attain the 2012 PM2.5 NAAQS programs identified in the CARB Staff PM2.5 Plan and that the adopted control by the December 31, 2021 attainment Report, the emission reductions from strategy is being implemented as date and thereby triggers the the District contingency measure (i.e., scheduled. Accordingly, RFP contingency measure provision in section 10.050.070 of City Ordinance contingency measures for 2019 no section 10.050.070 of City Ordinance No. 359) would be sufficient to meet the longer have meaning or purpose, and No. 359, the State would be required to attainment contingency measure the EPA proposes to find that the a submit a replacement contingency measure to address the 2022 milestone requirement for the 2012 PM2.5 NAAQS, requirement for them is now moot as even though the measure would achieve applied to the Portola nonattainment date. However, timely submittal of a emission reductions less than one year’s area. quantitative milestone report for the worth of RFP. With respect to the 2022 RFP 2022 milestone date would, if found milestone year, the contingency adequate by the EPA, moot the 3. Revised Contingency Measure for RFP measure in section 10.050.070 of City contingency measure requirement for and Quantitative Milestone Purposes Ordinance No. 359 would take effect if this milestone date. The applicable quantitative milestone the EPA determines that the area has failed to meet a requirement concerning 4. Additional Revisions in City dates for the 2012 PM2.5 NAAQS in the 54 Ordinance No. 359 Portola nonattainment area are October RFP or quantitative milestones but 15, 2019 and October 15, 2022.50 On would not, by itself, be sufficient to The new prohibition on the open May 5, 2019, CARB submitted the achieve emission reductions equivalent burning of yard waste, related ‘‘Portola 2019 Quantitative Milestone to one year’s worth of RFP. The CARB definitions, and limited exemptions in Report’’ (‘‘2019 QM Report’’) to the Staff Report, however, states that City Ordinance No. 359 are clear and EPA.51 The 2019 QM Report includes a continued implementation of the the monitoring, recordkeeping, certification from the Governor’s existing wood-stove changeout program reporting and other provisions in the designee that the 2019 quantitative together with several new measures and ordinance ensure that affected sources milestone for the Portola PM programs will result in surplus PM2.5 and regulators can consistently evaluate 2.5 emission reductions in the 2022 RFP and determine compliance with these nonattainment area has been achieved 55 and a demonstration that the adopted milestone year and in 2023. These additional provisions. These revisions control strategy has been fully measures and programs include a are therefore consistent with CAA implemented. The 2019 QM Report also chimney sweep voucher program, requirements regarding enforceability. Additionally, these new provisions in contains a demonstration of how the additional weatherization of homes, City Ordinance No. 359 comply with emission reductions achieved to date wood sheds for households in the CAA section 110(l) because they compare to those required or scheduled nonattainment area to keep firewood strengthen the SIP by adding new to meet RFP. The State and District dry, and the provision of a reliable and 56 requirements for the control of PM conclude in the 2019 QM Report that affordable supply of seasoned wood. 2.5 emissions from open burning activities the emission reductions needed to The CARB Staff Report states that funds in the Portola nonattainment area and demonstrate RFP have been achieved awarded to the District from the EPA’s would not interfere with any applicable and that the 2019 quantitative milestone 2018 and 2019/2020 Targeted Airshed requirement concerning attainment and has been met in the Portola Grants will ensure continuous RFP or any other applicable requirement nonattainment area. On November 3, the 2012 annual PM2.5 National Ambient Air of the CAA. Section 193 does not apply 2020, the EPA determined that the 2019 Quality Standards. 52 to this action because City Ordinance QM Report was adequate. 53 Under section 189(c)(3) of the CAA, if a state No. 359 does not modify a control fails to submit a required quantitative milestone 50 40 CFR 51.1013(a)(1); see also 83 FR 64774, report or the EPA determines that the area has not requirement in effect before November 58 64790 (December 18, 2018). met an applicable milestone, the EPA must require 15, 1990. We are not evaluating the 51 Letter dated May 5, 2019, from Richard W. the state, within nine months after such failure or Corey, Executive Officer, CARB, to Mike Stoker, determination, to submit a plan revision that 57 Id. Regional Administrator, EPA Region IX, with assures that the state will achieve the next 58 City Ordinance No. 359 modifies a control enclosure. milestone (or attain the NAAQS, if there is no next requirement that the EPA approved into the SIP on 52 Letter dated November 3, 2020, from Deborah milestone) by the applicable date. March 5, 2018 (83 FR 9213) (approving City Jordan, Acting Regional Administrator, EPA Region 54 City Ordinance No. 359, section 10.050.070. Ordinance No. 344 into SIP). Upon the EPA’s final IX, to Richard W. Corey, Executive Officer, CARB, 55 CARB Staff Report, 14–15. approval of City Ordinance No. 359 into the SIP, regarding 2019 Quantitative Milestone Report for 56 Id. this ordinance (excluding paragraph 15.10.060(B)

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stringency of these provisions for Plan), if the State fails to adopt and VIII. Statutory and Executive Order compliance with specific CAA control submit the PM2.5 Plan Revision in time Reviews standards at this time and will do so as for the EPA to take final action by Under the Clean Air Act, the part of our action on any subsequently March 1, 2021, because the contingency Administrator is required to approve a submitted attainment plan for the measure element of the Plan as SIP submission that complies with the Portola nonattainment area, as submitted February 28, 2017, fails to provisions of the Act and applicable 59 appropriate. satisfy the contingency measure Federal regulations. 42 U.S.C. 7410(k); The District has excluded from the requirements in CAA section 172(c)(9) 40 CFR 52.02(a). Thus, in reviewing SIP SIP submission paragraph 15.10.060(B) and 40 CFR 51.1014. submissions, the EPA’s role is to and sections 15.10.100 and 15.10.110 of If we finalize the proposed approve state choices, provided that City Ordinance No. 359 regarding disapproval, the offset sanction in CAA 60 they meet the criteria of the Clean Air penalties and violations. These section 179(b)(2) would apply in the Act. Accordingly, this proposed action paragraphs are not necessary for SIP Portola PM2.5 nonattainment area 18 merely proposes to approve, or approval and could lead to confusion months after the effective date of the conditionally approve, state plans as with respect to similar Federal final disapproval. The highway funding meeting Federal requirements and does requirements set forth in CAA section sanctions in CAA section 179(b)(1) not impose additional requirements 113. would apply in the area six months after beyond those imposed by state law. For the offset sanction is imposed. These VI. Proposed Actions and Request for that reason, this proposed action: sanctions would apply unless we take Public Comment • Is not a ‘‘significant regulatory final action to approve SIP revisions action’’ subject to review by the Office The EPA is proposing to approve the that meet the relevant CAA of Management and Budget under contingency measure element of the requirements prior to the time the Executive Orders 12866 (58 FR 51735, Portola PM Plan, as revised and 2.5 sanctions would take effect. In addition October 4, 1993) and 13563 (76 FR 3821, supplemented by the Proposed PM 2.5 to the sanctions, CAA section 110(c) January 21, 2011); Plan Revision, as meeting the provides that the EPA must promulgate • Is not an Executive Order 13771 (82 contingency measure requirements of a Federal implementation plan FR 9339, February 2, 2017) regulatory CAA section 172(c)(9) and 40 CFR addressing the deficiency that is the action because SIP approvals are 51.1014 for the 2012 annual PM2.5 basis for a disapproval, two years after exempted under Executive Order 12866; NAAQS in the Portola nonattainment the effective date of the disapproval, • Does not impose an information area. Our proposed approval is unless we have approved a revised SIP collection burden under the provisions contingent upon the State’s submission submission correcting the deficiency of the Paperwork Reduction Act (44 of the final, adopted PM2.5 Plan Revision before that date. U.S.C. 3501 et seq.); in time for the EPA to finalize this Finally, the EPA is proposing to • Is certified as not having a action by March 1, 2021, our court- approve the new provisions in City significant economic impact on a ordered deadline for taking final action Ordinance No. 359 concerning open substantial number of small entities on the contingency measure element of burning of yard wastes and other debris, under the Regulatory Flexibility Act (5 the Plan. The EPA also proposes to find including related definitions and U.S.C. 601 et seq.); that the requirement for RFP exemptions. These provisions • Does not contain any unfunded contingency measures for the 2019 strengthen the SIP and are consistent mandate or significantly or uniquely milestone date is moot as applied to the with CAA requirements regarding affect small governments, as described Portola nonattainment area, because the enforceability and SIP provisions. At the in the Unfunded Mandates Reform Act State’s and District’s 2019 QM Report State’s and District’s request, we are not of 1995 (Pub. L. 104–4); adequately demonstrates that the acting on paragraph 15.10.060(B), • Does not have federalism emission reductions needed to section 15.10.100, or section 15.10.110 implications as specified in Executive demonstrate RFP have been achieved of City Ordinance No. 359. Order 13132 (64 FR 43255, August 10, and that the 2019 quantitative milestone We will accept comments from the 1999); has been met in the Portola public on these proposals for the next • Is not an economically significant nonattainment area. 30 days. The deadline and instructions regulatory action based on health or The EPA is proposing, in the for submission of comments are safety risks subject to Executive Order alternative, to disapprove the provided in the DATES and ADDRESSES 13045 (62 FR 19885, April 23, 1997); contingency measure element of the sections at the beginning of this • Is not a significant regulatory action Portola PM2.5 Plan, as submitted preamble. subject to Executive Order 13211 (66 FR February 28, 2017 (section VI.B of the VII. Incorporation by Reference 28355, May 22, 2001); • Is not subject to requirements of and sections 15.10.100 and 15.10.110) will entirely In this rule, the EPA is proposing to Section 12(d) of the National replace City Ordinance No. 344. NSAQMD, include in a final EPA rule regulatory Technology Transfer and Advancement Resolution 2020–09 (October 26, 2020), 4 (para. 9). text that includes incorporation by Act of 1995 (15 U.S.C. 272 note) because 59 The EPA previously determined that the reference. In accordance with Portola PM Plan contains all RACM necessary for application of those requirements would 2.5 requirements of 1 CFR 51.5, the EPA is expeditious attainment of the 2012 PM2.5 NAAQS be inconsistent with the Clean Air Act; by the December 31, 2021 Moderate area attainment proposing to incorporate by reference and date. 84 FR 11208 (March 25, 2019). If the EPA the CARB measure described in Section • Does not provide the EPA with the determines that the Portola nonattainment area has II of this preamble (City Ordinance No. discretionary authority to address failed to attain the NAAQS by this date, the area will be reclassified as a Serious area, and the State 359). The EPA has made, and will disproportionate human health or will be required to submit a revised attainment plan continue to make, these materials environmental effects with practical, for the area that provides for the implementation of available through www.regulations.gov appropriate, and legally permissible best available control measures (BACM) within four and at the EPA Region IX Office (please methods under Executive Order 12898 years after such reclassification. CAA sections 188(b)(2) and 189(b)(1)(B). contact the person identified in the FOR (59 FR 7629, February 16, 1994). 60 NSAQMD, Resolution 2020–09 (October 26, FURTHER INFORMATION CONTACT section of In addition, the SIP is not approved 2020), 3 (paragraphs. 6, 7). this preamble for more information). to apply on any Indian reservation land

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or in any other area where the EPA or • Federal eRulemaking Portal: Go to Crash Avoidance Standards, telephone an Indian tribe has demonstrated that a http://www.regulations.gov. Follow the 202–366–1810, email Tim.Johnson@ tribe has jurisdiction. In those areas of online instructions for submitting dot.gov. Indian country, the proposed rule does comments. SUPPLEMENTARY INFORMATION: not have tribal implications and will not • Mail: Docket Management Facility, impose substantial direct costs on tribal M–30, U.S. Department of Table of Contents governments or preempt tribal law as Transportation, West Building, Ground I. Executive Summary specified by Executive Order 13175 (65 Floor, Room W12–140, 1200 New Jersey II. Introduction FR 67249, November 9, 2000). Avenue SE, Washington, DC 20590. A. Development of ADS • Hand Delivery or Courier: U.S. B. Potential Benefits of ADS List of Subjects in 40 CFR Part 52 Department of Transportation, West C. NHTSA Regulatory Activity To Remove Environmental protection, Air Building, Ground Floor, Room W12– Unintentional and Unnecessary Barriers pollution control, Ammonia, 140, 1200 New Jersey Avenue SE, to the Development and Deployment of Washington, DC, between 9 a.m. and 5 ADS Vehicles Incorporation by reference, D. Need for a Safety Framework, Including Intergovernmental relations, Nitrogen p.m. Eastern time, Monday through Implementation and Oversight dioxide, Particulate matter, Reporting Friday, except Federal holidays. To be Mechanisms, for Federal Efforts To and recordkeeping requirements, Sulfur sure someone is there to help you, Address ADS Performance dioxide, Volatile organic compounds. please call (202) 366–9322 before III. Safety Framework—Core Elements, coming. Potential Approaches, and Current Authority: 42 U.S.C. 7401 et seq. • Fax: 202–493–2251. Activities Dated: November 17, 2020. Regardless of how you submit your A. Engineering Measures—Core Elements John Busterud, comments, you must include the docket of ADS Safety Performance number identified in the heading of this 1. Core ADS Safety Functions Regional Administrator, Region IX. 2. Other Safety Functions [FR Doc. 2020–26648 Filed 12–2–20; 8:45 am] document. 3. Federal Engineering Measure Note that all comments received, BILLING CODE 6560–50–P Development Efforts including any personal information 4. Other Notable Efforts Under provided, will be posted without change Consideration as Engineering Measures to http://www.regulations.gov. Please B. Process Measures—Safety Risk DEPARTMENT OF TRANSPORTATION see the ‘‘Privacy Act’’ heading below. Minimization in the Design, You may call the Docket Management Development, and Refinement of ADS National Highway Traffic Safety Facility at 202–366–9322. For access to 1. Functional Safety Administration 2. Safety of the Intended Functionality the docket to read background 3. UL 4600 documents or comments received, go to 49 CFR Part 571 IV. Safety Framework—Administrative http://www.regulations.gov or the street Mechanisms for Implementation and [Docket No. NHTSA–2020–0106] address listed above. To be sure Oversight someone is there to help you, please call A. Voluntary Mechanisms RIN 2127–AM15 (202) 366–9322 before coming. We will 1. Safety Self-Assessment and Other continue to file relevant information in Disclosure/Reporting Framework for Automated Driving the Docket as it becomes available. 2. New Car Assessment Program (NCAP) System Safety 3. Operational Guidance Privacy Act: In accordance with 5 B. Regulatory Mechanisms U.S.C. 553(c), DOT solicits comments AGENCY: 1. Mandatory Reporting and/or Disclosure National Highway Traffic from the public to inform its decision- Safety Administration (NHTSA), 2. NHTSA’s FMVSS Setting Authority making process. DOT posts these 3. Applying the Established FMVSS Department of Transportation (DOT). comments, without edit, including any Framework to ADS Safety Principles ACTION: Advance notice of proposed personal information the commenter 4. Reforming How NHTSA Drafts New rulemaking (ANPRM). provides, to http://www.regulations.gov, FMVSS To Keep Pace With Rapidly as described in the system of records Evolving Technology SUMMARY: NHTSA is requesting 5. Examples of Regulatory Approaches notice (DOT/ALL–14 FDMS), which can comment on the development of a D. Timing and Phasing of FMVSS be reviewed at https:// framework for Automated Driving Development and Implementation www.transportation.gov/privacy. System (ADS) safety. The framework E. Critical Factors Considered in Designing, Anyone can search the electronic form Assessing, and Selecting Administrative would objectively define, assess, and of all comments received into any of our Mechanisms manage the safety of ADS performance dockets by the name of the individual V. Questions and Requests while ensuring the needed flexibility to submitting the comment (or signing the VI. Preparation and Submission of Written enable further innovation. The Agency Comments comment, if submitted on behalf of an is seeking to draw upon existing Federal VII. Regulatory Notices association, business, labor union, etc.). and non-Federal foundational efforts I. Executive Summary and tools in structuring the framework FOR FURTHER INFORMATION CONTACT: as ADS continue to develop. NHTSA For legal issues, Sara R. Bennett, Over the past several years, NHTSA seeks specific feedback on key Attorney-Advisor, Vehicle Rulemaking has published numerous research components that can meet the need for and Harmonization, Office of Chief reports, guidance documents, advance motor vehicle safety while enabling Counsel, 202–366–2992, email notices of proposed rulemakings, and, innovative designs, in a manner [email protected]. on March 30, 2020 (85 FR 17624), a For research issues, Lori Summers, consistent with agency authorities. notice of proposed rulemaking relating Director, Office of Vehicle Crash to the development of vehicles DATES: Written comments are due no Avoidance and Electronic Controls equipped with Automated Driving later than February 1, 2021. Research, telephone: 202–366–4917, Systems (ADS).1 An ADS is the ADDRESSES: Comments must refer to the email [email protected]. docket number above and be submitted For rulemaking issues, Tim J. 1 ADS, as defined by SAE International and as by one of the following methods: Johnson, Acting Director, Office of used in this document, refers to driving automation

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hardware and software that are, way for the safe development and on ADS because NHTSA is looking collectively, capable of performing the eventual deployment of ADS beyond the existing FMVSS and their entire dynamic driving task on a technology, particularly because the application to novel vehicle designs and sustained basis, regardless of whether it Agency understands that ADS-equipped is considering the creation of a is limited to a specific operational vehicles are likely to remain in the pre- governmental safety framework design domain (ODD).2 In less technical deployment testing and development specifically tailored to ADS. terms, an ADS maintains the control stage for at least the next several years. Rather than elaborating and and driving functions within the Further, as small-scale deployments prescribing by rule specific design situations that the system is designed to start to appear in the coming years, characteristics or other technical operate in. NHTSA will address unreasonable requirements for ADS, NHTSA In general, the Agency’s ADS-related safety risks that may arise using its envisions that a framework approach to publications issued so far address the defect investigation and remediation safety for ADS developers would use challenges involved in determining authority. performance-oriented approaches and which requirements of the existing Though wide-scale deployment still metrics that would accommodate the Federal Motor Vehicle Safety Standards may be several years away, many design flexibility needed to ensure that (FMVSS) are relevant to the safety needs companies are actively developing and manufacturers can pursue safety of ADS-equipped vehicles without testing ADS technology throughout the innovations and novel designs in these traditional manual controls, and then United States. This development new technologies. This framework adapting or developing the requirements process for ADS is complex and could involve a range of actions by and the associated test procedures so iterative. Accordingly, it may be NHTSA, including guidance documents that the requirements can effectively be premature for NHTSA to develop and addressing best industry practices, applied to the novel vehicle designs that promulgate a specialized set of FMVSS providing information to consumers, may accompany such vehicles without or other performance standards for ADS and describing different approaches to adversely affecting safety. Thus, those competency. NHTSA’s existing FMVSS research and summarizing the results of notices, particularly the Agency’s set minimum performance requirements research, as well as more formal regulatory notices, have focused more for vehicles and equipment, and they regulation, from rules requiring on the design of the vehicles that may follow an approach that is performance- reporting and disclosure of information be equipped with an ADS—not based, objective, practicable, and to the adoption of ADS-specific FMVSS. necessarily on the performance of the established with precise and repeatable These different approaches would likely ADS itself. NHTSA has also published test procedures.3 build off the three primary ADS recommendations to ADS developers, The development of an FMVSS guidance documents issued in recent including automakers and technology typically requires significant years by DOT (i.e., ADS 2.0, Preparing companies, most prominently in engineering research, the development for the Future of Transportation: Automated Driving Systems 2.0: A of an objective metric (i.e., knowing Automated Vehicles 3.0 (AV 3.0), and Vision for Safety. The Agency has also what aspect or aspects of performance to Ensuring American Leadership in proposed in a notice-and-comment measure), and the establishment of an Automated Vehicle Technologies: rulemaking to remove unintended and appropriate standard based upon that Automated Vehicles 4.0 (AV 4.0)). As unnecessary regulatory barriers (e.g., metric (i.e., specifying the minimum described in this document, NHTSA proposing to remove the requirement for required level of performance). seeks comment on the appropriate role installation of advanced air bag systems Premature establishment of an FMVSS of the Agency in facilitating ADS risk in delivery trucks with no occupant without the appropriate knowledge base management through guidance and/or compartment) or other impediments to could result in unintended regulation. the development or deployment of consequences. For example, a premature This document focuses on ways the vehicles with ADS. This approach has standard might focus on the wrong Agency could approach the performance been appropriate as a means to pave the metric, potentially placing constraints evaluation of ADS through a safety on the wrong performance factors, while framework, containing a variety of Levels 3–5. SAE International J3016_201806 missing other critical safety factors. approaches and mechanisms that, Taxonomy and Definitions for Terms Related to Such a standard could inadvertently together, would allow NHTSA to Driving Automation Systems for On Road Motor identify and manage safety risks related Vehicles. Previous notices issued by NHTSA provide an unreliable sense of security, focused on driving automation Levels 4 and 5, due potentially lead to negative safety to ADS in an appropriate manner. to the unique vehicle designs expected for vehicles results, or potentially hinder the NHTSA anticipates focusing this intended to operate without necessary human development of new ADS technology. framework on the functions of an ADS intervention, and thus, potentially designed that are most critical for safe operation. without traditional manual controls. Safety Framework This document does not focus on any particular At this stage, NHTSA believes there vehicle type, but rather, on the ADS itself. NHTSA Although the establishment of an are four primary functions of the ADS recognizes that the vehicle type for which the ADS FMVSS for ADS may be premature, it is that should be the focus of the Agency’s is developed to operate may impact the resulting appropriate to begin to consider how attention. First, how the ADS receives ADS performance, but the Agency is not delving into this level of specificity at this time. NHTSA may properly use its regulatory information about its environment Finally, the major notices that NHTSA has authority to encourage a focus on safety through sensors (‘‘sensing’’). Second, published in the past several years are: Removing as ADS technology continues to how the ADS detects and categorizes Regulatory Barriers for Vehicles With Automated develop. This document, thus, marks a other road users (vehicles, Driving Systems Request for Comment, 83 FR 2607 significant departure from the regulatory motorcyclists, pedestrians, etc.), (Jan. 18, 2018); Removing Regulatory Barriers for Vehicles With Automated Driving Systems Advance notices NHTSA has previously issued infrastructure (traffic signs, signals, Notice of Proposed Rulemaking, 84 FR 24433 (May etc.), and conditions (weather events, 28, 2019); Occupant Protection for Automated 3 See 49 U.S.C. 30111(a); Chrysler Corp. v. Dep’t road construction, etc.) (‘‘perception’’). Driving Systems Notice of Proposed Rulemaking, 85 of Transp., 472 F.2d 659 (6th Cir. 1972); Nat’l Tire Third, how the ADS analyzes the FR 17624 (Mar. 20, 2020). Dealers & Retreaders Ass’n, Inc. v. Brinegar, 491 2 SAE International J3016_201806 Taxonomy and F.2d 31 (D.C. Cir. 1974); Paccar, Inc. v. Nat’l situation, plans the route it will take on Definitions for Terms Related to Driving Highway Traffic Safety Admin., 573 F.2d 632 (9th the way to its intended destination, and Automation Systems for On-Road Motor Vehicles. Cir. 1978). makes decisions on how to respond

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appropriately to the road users, developed and adopted, they could be of administrative mechanisms would be infrastructure, and conditions detected applied on an ‘‘if-equipped’’ basis to most appropriate for constructing the and categorized (‘‘planning’’). Fourth, existing traditional classes of vehicles framework, either in general or for its how the ADS executes the driving (e.g., passenger cars, multipurpose component parts, and ensuring its functions necessary to carry out that passenger vehicles, buses, and trucks). effective and efficient implementation. plan (‘‘control’’) through interaction By an ‘‘if-equipped’’ FMVSS, NHTSA with other parts of the vehicle. While means an FMVSS that would not II. Introduction other elements of ADS safety are mandate the installation of ADS in A. Development of ADS discussed throughout this document, motor vehicles, but would instead these four primary functions serve as specify performance requirements for The development of ADS 4 continues the core elements NHTSA is those vehicles equipped with ADS. and is well under way. Developers are considering. Similarly, a new FMVSS could be testing components and systems The Agency anticipates that the safety applied to the entire vehicle of new through simulation and modeling, framework would include both process classes of vehicles, i.e., subclasses of controlled track testing, and limited on- and engineering measures to manage vehicles equipped with ADS. In making road testing with test vehicle operators risks. The process measures (e.g., this choice, the administrative and monitors, and, in some cases, general practices for analyzing, feasibility of creating, updating, and limited on-road deployments. The classifying by severity level and implementing requirements for multiple frequency, and reducing potential Agency believes these activities will subclasses would need to be carefully 5 sources of risks during the vehicle considered. continue to increase. design process) would likely include In July 2020, NHTSA identified on- Comments Requested robust safety assurance and functional road testing and development activities safety programs. The engineering NHTSA seeks comments on how to in 40 States and the District of measures (e.g., performance metrics, select and design the structure and key Columbia.6 At the same time, 66 thresholds, and test procedures) would elements of a framework and the companies in California, one of the seek to provide ways of demonstrating appropriate administrative mechanisms main hubs of testing activity in the that ADS perform their sensing, to achieve the goals of improving safety, world, had valid State permits to test perception, planning, and control (i.e., mitigating risk, and enabling the ADS-equipped vehicles with safety development and introduction of new execution) of intended functions with a drivers on public roadways.7 Two of safety innovations. To aid interested high level of proficiency. those companies also received permits persons in forming their views and Administration of a Framework allowing for driverless testing in preparing their comments, this 8 NHTSA is seeking comment on the document surveys ongoing efforts in the California. One of those companies manner in which the framework can private and public sectors to create a received permission from California in and should be administered (e.g., safety framework. July 2019 to carry passengers in its ADS- guidance, consumer information, or In their written submissions, equipped vehicles while a safety driver regulation) to support agency oversight commenters should discuss, for is present.9 In the Phoenix area, one of ADS-related aspects. Since some of example, what engineering and process company is even providing limited the mechanisms described in this measures should be included, and what rideshare services to participants in its document (e.g., guidance) could be aspects of ADS performance are suitable testing program without an in-vehicle implemented more quickly than others for potential safety performance safety driver. This same company (e.g., FMVSS), the mechanisms could be standard setting (i.e., what aspects of recently announced that it is expanding adopted, when and as needed, in a ADS performance should manufacturers these rideshare services.10 One phased manner, and implementation of be required to certify that their system manufacturer of small, low-speed, some types of mechanisms might end possess? Of the many aspects of sensing, occupant-less delivery vehicles, up not being necessary. This document perception, planning, and control that received a temporary exemption from will go into greater detail on the various manufacturers will need to prove for NHTSA to deploy up to 2,500 vehicles types of administrative mechanisms their own purposes, the Agency wishes per year for two years.11 That same upon which the Agency is seeking to know which aspects would be so company has also received a permit comment in later sections. important that they should be subject to separate Federal regulations. The Future of ADS Regulation 4 The term ‘‘ADS’’ specifically refers to SAE Level Agency also wishes to hear from the 3, 4, or 5 driving automation systems as described Eventually, non-regulatory aspects of public on whether ADS-specific in SAE International J3016_201806 Taxonomy and the framework, combined with regulations are appropriate or necessary Definitions for Terms Related to Driving information learned from research and prior to the broad commercial Automation Systems for On Road Motor Vehicles. 5 Some examples of companies planning on the the continued development of ADS, deployment of the technology, and, if ride-sharing or delivery business models include could serve as the basis for development so, how regulations could be developed Cruise, Waymo, Argo AI, Uber, Lyft, Nuro. of FMVSS governing the competence of consistent with the Agency’s legal 6 NHTSA notes that the State count includes ADS. The sub-elements of the sensing, obligations without being based upon active (ongoing), planned, and inactive (completed) perception, planning, and control the existence of commercially available projects. 7 https://www.dmv.ca.gov/portal/dmv/detail/vr/ functions could evolve into new FMVSS ADS technology from which to measure autonomous/permit. focused entirely on ADS competence. A required performance. The Agency also 8 https://www.dmv.ca.gov/portal/dmv/detail/vr/ new generation of FMVSS should give seeks comment on how the need for and autonomous/driverlesstestingpermits. the manufacturers of vehicles, sensors, benefits of issuing regulations can be 9 Other companies have received permission to software, and other technologies needed assessed before ADS become available carry passengers in their ADS-equipped vehicles while a safety driver is present, and they are listed for ADS sufficient flexibility to change to allow testing and validation of the here: https://www.cpuc.ca.gov/avcissued/. and improve without the need for assumptions supporting those needs 10 https://blog.waymo.com/2020/10/waymo-is- frequent modifications to the and benefits. In addition, the Agency opening-its-fully-driverless.html. regulations. If new FMVSS were seeks comment on which type or types 11 85 FR 7826 (Feb. 11, 2020).

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from California to perform driverless system is designed to function (i.e., initiative also involves automakers and testing.12 operational design domain).15 The ADS developers, and provides a forum As described in AV 3.0, ADS primary purpose of this stage of testing to promote public engagement and development does not start with public, is to build statistical confidence in knowledge-sharing about safety in the on-road testing. Rather, much of the matured software and hardware within development and testing of ADS- very early testing of prototype ADS by the intended operational environment equipped vehicles. The AV TEST developers is conducted in simulation and observe system failures, safety Initiative will also provide an online, and/or closed-course (i.e., track) testing driver subjective feedback, and public-facing platform for sharing ADS environments.13 Public road testing of a execution of fail-safe/fail-operational road testing activities and other relevant prototype ADS typically begins after system behaviors. Third, and finally, information at the local, State, and significant engineering and safety ADS developers may progress to national levels. It will feature an online analysis are performed by developers to deployment of ADS, in either limited or mapping tool that will show road testing understand safety risks and mitigation full capacity. locations, as well as testing activity data strategies are put in place to address As stated in AV 3.0, NHTSA believes such as dates, frequency, vehicle counts, those risks. It is important to note that that on-road testing is essential for the and routes. the development process is generally development of ADS-equipped vehicles both iterative and cyclical. A developer that will be able to operate safely on B. Potential Benefits of ADS does not ‘‘graduate’’ from simulation to public roads. Most of the ADS testing NHTSA’s mission is to save lives, track test, and then to on-road testing, activity in the United States is in the prevent injuries, and reduce economic and then deployment. Instead, early stages of on-road testing. Safety costs due to road traffic crashes, through developers will generally continue drivers oversee the ADS during testing education, research, guidance, safety simulation testing throughout the for most companies, though some standards, and enforcement activity. If development process to gain additional companies have progressed to the later developed and deployed safely, ADS experience with various scenarios that stages of on-road testing. Despite this can aid in achieving that mission, given may be encountered rarely in the real development and all the progress the their potential to prevent, reduce, or world. Similarly, track testing designed industry has made over the past several mitigate crashes involving human error to resemble scenarios that may be years, no vehicle equipped with an ADS or poor choices. This potential stems encountered rarely or that would be is available for purchase in the United from the substantial role that human dangerous to attempt on public roads States or deployed across the United factors (distraction, impairment, fatigue, until later stages of readiness will occur States.16 errors in judgment, and decisions not to throughout the process, even as on-road NHTSA recognizes the critical role obey traffic laws) play in contributing to testing is occurring. Further, that State and local governments play in crashes.17 In addition, they have the experiences gained from on-road testing traffic safety, including our shared potential to enhance accessibility (e.g., will often lead to simulation and/or test oversight of on-road testing of vehicles through allowing personal track replication of situations with ADS. Their roles in the active on- transportation to people with encountered on public roads to improve road testing and development disabilities or people incapable of the ADS. In other words, the fact that a throughout the country is part of why driving), and improve productivity (e.g., vehicle is being tested on public roads NHTSA recently launched its by allowing people to work while being does not mean that the vehicle or ADS Automated Vehicles Transparency and transported and allowing platooning or is nearing deployment readiness and, Engagement for Safe Testing (AV TEST) entirely automated operation of conversely, the fact that a vehicle is still Initiative to facilitate further dialogue commercial trucks). Accordingly, undergoing simulation or track testing and transparency of the state of ADS NHTSA is placing a priority on the safe does not mean is it not safe to be tested development. This initiative features a development and testing of ADS that on public roads. series of meetings and workshops where factors safety into every step toward NHTSA’s understanding is that there State and local governments discuss eventual deployment. are generally different stages of safety their activities, lessons learned, and best C. NHTSA Regulatory Activity To risk management during the on-road practices for oversight of on-road Remove Unintentional and Unnecessary testing of prototype ADS.14 First is the testing, and NHTSA discusses its Barriers to the Development and development and early stage road research and rulemaking activities. The Deployment of ADS Vehicles testing, which is often comprised of the characteristics such as safety drivers 15 Operational design domain (ODD) is the To date, NHTSA’s regulatory notices serving key safety risk mitigation roles, operating conditions under which a given driving have focused on ADS-equipped vehicles rapid updating of ADS software to automation system or feature thereof is specifically without traditional manual controls by designed to function, including, but not limited to, assessing the modifications to existing incorporate lessons learned, and focus environmental, geographical, and time-of-day on validating the performance of the restrictions, and/or the requisite presence or FMVSS that may be necessary to ADS from the simulation and close- absence of certain traffic or roadway characteristics. address the designs and any unique course testing environments. Second, SAE International J3016_201806 Taxonomy and safety needs of those vehicles.18 For once development progresses, Definitions for Terms Related to Driving example, while vehicles that cannot be Automation Systems for On Road Motor Vehicles. driven by human drivers and vehicles companies may expand ADS road 16 While Nuro was granted an exemption allowing testing and focus on building for deployment of their low-speed, occupantless that can be driven by human drivers confidence in the ADS within the delivery vehicle, the terms of the exemption both need brakes that stop them locations and situations in which the provide that Nuro must maintain ownership and effectively, each set of vehicles may operational control over the R2Xs that are built have different safety needs. Traditional pursuant to the exemption for the life of the 12 https://www.dmv.ca.gov/portal/dmv/detail/vr/ vehicles. See Nuro, Inc.; Grant of Temporary autonomous/driverlesstestingpermits. Exemption for a Low-Speed Vehicle With an 17 See Critical Reasons for Crashes Investigated in 13 https://www.transportation.gov/av/3. Automated Driving System, 85 FR 7826 (Feb. 11, the National Motor Vehicle Crash Causation Survey 14 https://www.transportation.gov/sites/dot.gov/ 2020), available at https://www.federalregister.gov/ (Feb. 2015), available at https://crashstats.nhtsa. files/docs/policy-initiatives/automated-vehicles/ documents/2020/02/11/2020-02668/nuro-inc-grant- dot.gov/Api/Public/ViewPublication/812115. 320711/preparing-future-transportation-automated- of-temporary-exemption-for-a-low-speed-vehicle- 18 See 84 FR 24433 (May 28, 2019) and 85 FR vehicle-30.pdf. with-an-automated-driving-system. 17624 (Mar. 30, 2020).

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vehicles rely on human drivers, while potential solutions or countermeasures manufacturers’ efforts to ensure safety, the ADS-equipped vehicles rely on an to the safety issues that have been while also providing sufficient ADS to acquire information about the identified, and then develops flexibility for new and more effective location and movement of other practicable performance or related safety innovations. In addition, NHTSA roadway users, weather conditions, and requirements intended to either resolve seeks to explore the adoption of vehicle operating status—all while or mitigate the crash risk identified. alternative or complementary making driving decisions. These Manufacturers are then required to self- mechanisms for implementing potential differing safety needs may mean that the certify, by whatever reasonable means engineering and process measures, as installation of some features currently they choose, that their vehicles or described below, to manage risks and required by the FMVSS (e.g., mirrors, equipment meet the performance facilitate agency safety oversight. dashboard controls, some displays) into requirements. Finally, NHTSA assesses NHTSA seeks to develop a safety vehicles without traditional manual vehicle or equipment compliance with framework of standards and/or guidance driving controls may no longer meet a those established requirements through that manufacturers of ADS would (or, in need for safety. Further, while steering the validated test procedures that it has the case of guidance, could) follow to machines and other equipment can be developed. evaluate and demonstrate the safety of made to simulate human drivers in Based on the current state of ADS their new systems, as produced and, at conducting the track testing of vehicles development, it is probably too soon to least in some cases, throughout the with manual controls, having NHTSA make any decisions about the extent to lifetime of those systems. The instruct the ADS of a vehicle that lacks which new FMVSS might be needed to framework would rest on the elements manual controls how to perform the address particular aspects of the safety described below in section III of this same testing may be more challenging. performance of these systems. ADS are, document. generally, in the development stages, In addition, the Agency seeks to D. Need for a Safety Framework, and market-ready, mature ADS do not Including Implementation and identify the best administrative yet exist. Accordingly, there do not exist mechanisms for establishing and Oversight Mechanisms, for Federal meaningful data about the on-road Efforts To Address ADS Performance implementing engineering and process experience of these systems that can be measures and facilitating agency safety The National Traffic and Motor analyzed to determine the safety need oversight. Potential mechanisms are Vehicle Safety Act of 1966, as amended that potentially should be addressed, described in section IV of this (‘‘Safety Act’’) tasks NHTSA with e.g., which aspects of performance are document. reducing traffic accidents, deaths, and in need of regulation, what would be injuries resulting from traffic accidents reasonable, practicable, or appropriate III. Safety Framework—Core Elements, through issuing motor vehicle safety for regulation, or the minimum Potential Approaches, and Current standards for motor vehicles and motor thresholds for performance, much less Activities vehicle equipment and carrying out how to regulate such performance. Safety assurance generally refers to needed safety research and Likewise, there are no vehicles the broad array of proactive approaches development.19 The FMVSS established equipped with mature ADS that can be a company can take proactively to by NHTSA must: Meet the need for purchased by the Agency and tested to identify and manage potential safety motor vehicle safety; be practicable, validate the effectiveness of a risks associated with a system, such as both technologically and economically; contemplated standard in addressing the ADS of a vehicle. Safety assurance, and be stated in objective terms. The the safety needs of those vehicles. as contemplated in many of the final requirement means that they are NHTSA has no desire to issue documents discussed in this section, is capable of producing identical results regulations that would needlessly typically a process controlled and prevent the deployment of any ADS- when test conditions are exactly conducted by the manufacturer that is equipped vehicle, as this could inhibit duplicated and determinations of designing a vehicle and certifying that the development of a promising compliance must be based on scientific vehicle’s compliance. Many of these 20 technology that has the potential to measurements, not subjective opinion. process and engineering measures are result in an unprecedented increase in In addition, in issuing an FMVSS, the used by manufacturers in the safety. Any regulatory approach must Agency must consider whether the development of their products, and have well-founded supporting data standard is reasonable, practicable, and NHTSA intends to explore how the indicating safety needs. An ill- appropriate for the types of motor Agency might harness these same conceived standard may fail to meet the vehicles or motor vehicle equipment for processes in the development of a new which it is prescribed.21 need for motor vehicle safety and needlessly stifle innovation. Worse yet, regulatory or sub-regulatory approach to NHTSA typically begins the process evaluate the safety of ADS. of promulgating a FMVSS by identifying issuing premature regulations could even increase safety risk with The Department’s guidance the aspect of performance that may need documents on vehicles equipped with 22 unintended consequences. Pursuing a regulation (i.e., the safety need ). ADS, ADS 2.0 23 and Preparing for the NHTSA analyzes real-world crash data ‘‘precautionary’’ FMVSS may, in fact, be prohibited by the Safety Act itself, as Future of Transportation: Automated and other available information in order 24 sufficient information does not yet exist Vehicles 3.0, generally describe these to identify safety issues and quantify the aspects of safety assurance and how the size of the safety problems, researches to establish a standard that is practicable, meets the need for motor Department envisions its role in safety risk management and oversight during 19 vehicle safety, and can be stated in 49 U.S.C. 30101. the development and deployment of 20 49 U.S.C. 30111(a), Chrysler Corp. v. Dep’t of objective terms. Transp., 472 F.2d 659 (6th Cir. 1972). It is not too soon, however, for the ADS. 21 49 U.S.C. 30111(b)(3). Agency, with input from stakeholders, 22 ‘‘The Safety Act’s mandate is not, however, to begin identifying and developing the 23 Pages 5–16. Available at https:// categorical. Not all risks of accident or injury are www.nhtsa.gov/sites/nhtsa.dot.gov/files/ to be eliminated, but only those that are elements of a framework that meets the documents/13069a-ads2.0_090617_v9a_tag.pdf. ‘‘unreasonable.’’ Ctr. for Auto Safety v. Peck, 751 need for motor vehicle safety and 24 See table on page 50. Available at https:// F.2d 1336, 1343 (D.C. Cir. 1985). assesses the degree of success in www.transportation.gov/av/3.

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This section elaborates on the core in relation to the driving environment of an ADS responsible for cognitive elements of ADS safety performance and and its ODD, including whether it is interpretation, the planning function is the documents behind the various operating within any geolocational equivalent to that part of the brain of the elements of the safety framework for limitations in the ODD. Perception ADS responsible for decision-making. ADS that NHTSA is currently includes detection and identification of Finally, the ‘‘control’’ function of an considering. This section also describes relevant static features and objects (e.g., ADS refers to the ability of the system some of the many private and public road edges, lane markings, and traffic to execute the driving functions activities related to evaluating ADS signs) and dynamic objects (e.g., necessary to carry out the continuously safety performance. vehicles, cyclists, and pedestrians) updated driving plan. Control includes detected by sensors within proximity of implementing the driving plan by A. Engineering Measures—Core the vehicle. Through perception, the delivering appropriate control inputs— Elements of ADS Safety Performance ADS is provided with information such as steering, propulsion, and Engineering measures are those necessary to predict the future behavior braking—to follow the planned path aspects that can be readily determined (e.g., speed and path) of relevant static while adjusting the plan when and as through the testing of a finished motor and dynamic objects (i.e., those whose necessary based on the continuous vehicle or system and establish the level speed and path may create the risk of a acquisition and processing of new data of safety performance. Engineering collision with the vehicle). Thus, while concerning the state of the vehicle and measures could be used to assess safety sensing serves as the ‘‘eyes’’ of the ADS, surrounding environment. The control performance of the ADS, such as perception performs the associated function, carried out through actuators successful crash avoidance (i.e., cognitive recognition of information and their associated control systems that whether the ADS-equipped vehicle is detected through the sensor’s ‘‘eyes.’’ facilitate execution of the driving plan, capable of completing certain Perception provides necessary are analogous to the ‘‘arms’’ and ‘‘legs’’ maneuvers without loss of control), but interpreted information to the system so of the ADS in driving the vehicle. how exactly to design these measures is that it can conduct other key functions NHTSA requests comment on these highly complicated. While a mature for successful completion of the driving four core functions, including whether ADS may avoid many of the human task. commenters agree that these are the core driver errors and poor choices that lead ‘‘Planning’’ refers to the ability of an functions, views on NHTSA’s to the majority of crashes today, an ADS ADS to establish and navigate the route description of these functions, and may still find itself in crash-imminent it will take on the way to its intended whether and how NHTSA should scenarios that may warrant emergency destination. The planning function of an prioritize its research as it develops a maneuvers. Successful crash avoidance ADS builds from the sensing and safety framework. would depend on a vehicle’s perception functions by using the 2. Other Safety Functions mechanical abilities (e.g., abilities to information collected through sensing stop quickly and to maintain or regain and interpreted through perception, and While the four functions described directional stability and control). ADS- predicts the future state of static and above are necessary for an ADS, they are not necessarily sufficient to ensure ADS equipped vehicles, though, are unique dynamic objects to create a path that safety, which will also depend on a in that the vehicle’s system must also be mitigates crash risks, follows rules of 25 wide array of other functions and able to perform appropriately the the road, and safely reaches its capabilities of the system and how that following safety relevant functions that intended destination. If the perception system interacts with the humans both are inherent to the adequate function is akin to the part of the brain inside and surrounding the ADS- functionality of an ADS-equipped 25 equipped vehicle. vehicle: NHTSA notes that, while compliance with • many rules of the road can be readily and For example, one safety-related aspect Sensing; objectively determined, compliance with others • Perception; not encompassed within the four cannot. The rule to obey posted speed limits is an functions would be the vehicle’s ability • Planning; and example of the former. If a vehicle has mapped or • Control. can read posted speed limit signs, it can readily to communicate with vehicle compare its speed with the posted speed and occupants 26 and other vehicles and 1. Core ADS Safety Functions modulate its speed accordingly to avoid exceeding people in the driving environment, the limit. However, achieving compliance with 27 ‘‘Sensing’’ refers to the ability of the situational or judgmental rules, such as those especially vulnerable road users. The ADS to receive adequate information prohibiting driving too fast for conditions or driving human-machine interaction is expected from the vehicle’s internal and external recklessly, is much less readily determinable by a to have an impact not only on the vehicle. See., e.g., Formalising and Monitoring operational safety of an ADS-equipped environment through connected Traffic Rules for Autonomous Vehicles in Isabelle/ sensors. Sensors on an ADS-equipped HOL, Albert Rizaldi, Jonas Keinholz, Monika Huber, vehicle, but also on the public vehicle might include cameras, radar, Jochen Feldle, Fabian Immler, Matthias Althoff, acceptance of such systems. ADS LiDAR, Global Positioning Satellite Eric Hilgendorf, and Tobias Nipkow. https:// capability to detect the malfunction of www21.in.tum.de/∼nipkow/pubs/ifm17.pdf. its own system or other systems in the (GPS), vehicle-to-vehicle (V2V) and/or Substantial compliance by a vehicle with the rule vehicle-to-everything (V2X) devices, against driving recklessly might be indirectly among other technologies. Sensing also achievable through programming the vehicle to 26 For instance, if a vehicle stops, passengers have involves scanning the driving drive defensively. One aspect of that programming in interest in knowing the vehicle’s status. Did it would be to ensure that the vehicle always stop because it reached its destination, to avoid an environment with emphasis on the maintains a safe driving distance between itself and obstacle, or because of a malfunction? Should direction of travel in which the ADS the vehicle immediately ahead, including any passengers remain in the vehicle or is it safe to exit? intends to head. The sensing vehicle that cuts into the vehicle’s lane. This notion 27 A driver’s eye contact, hand gestures, and even of a safe space could also be made to vary according his/her mere presence means something to others functionality serves as the ‘‘eyes’’ of the to whether the vehicle detects conditions such as outside the vehicle. An empty vehicle, especially an ADS. darkness, rain, or loss of traction. See., e.g., On a electric ADS-equipped vehicle without traditional ‘‘Perception’’ refers to the ability of an Formal Model of Safe and Scalable Self-driving manual driving controls, may appear to be parked ADS to interpret information about its Cars, Shai Shalev-Shwartz, Shaked Shammah, and in the off position when in fact it is ready to environment obtained through its Amnon Shashua, Mobileye, 2017. https://arxiv.org/ move. Someone approaching the vehicle (passenger, pdf/1708.06374.pdf. The amount of space needed law enforcement, rescuers, tow truck operators, etc.) sensors. This involves an ADS by the vehicle would vary according to the vehicle’s has an interest in knowing whether it is about to determining the location of the vehicle speed. move and how to safely interact with the vehicle.

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vehicle accurately and reliably, while outside of research. If so, which An updated approach, referred to as also ensuring safe transitions between element(s)? For each such element, the Model Predictive Instantaneous operational modes developed to should NHTSA’s role be regulatory or Safety Metric (MPrISM), builds upon respond to any detected issues or sub-regulatory, and in what manner? the ISM concept and modifies its malfunctions (e.g., fail safe or limp assessment method.34 MPrISM home modes), is another important 3. Federal Engineering Measure considers the subject vehicle’s range of consideration that could impact Development Efforts fully controllable actions and calculates expected performance by an ADS. NHTSA, as part of the Department’s crash implications under the scenario of Other aspects that could impact the broader efforts, has begun the research best response choices by the subject ability of an ADS to carry out its to explore potential ways the Agency vehicle and worst choices by other intended plans in a safe and reliable can assess the safety of ADS. As actors in the scene. One of the benefits of ISM and manner include: (1) Identifying reduced described in AV 4.0, NHTSA maintains MPrISM is their relatable logical system performance and/or ODD in the a comprehensive ADS research program reasoning and straight-forward presence of failure; (2) operating in a evaluating and researching a wide array analytical construction. However, ISM degraded mode within reduced system of aspects related to ADS constraints; 28 (3) performing the is not without its challenges in performance.32 One of NHTSA’s key administering in real-world essential task of transporting occupants research tracks focuses on ADS safety applications. One of those challenges is or goods from starting point to the performance, and seeks to identify the the significant computational chosen destination; (4) recognizing and methods, metrics, and tools to assess complexity required for effective reacting appropriately to how well the ADS-equipped vehicle communications from first responders, utilization. MPrISM attempts to address performs both normal driving tasks as this computational complexity and can including fire, EMS, and law well crash avoidance capabilities. Such enforcement; 29 (5) receiving, loading, be run using real time data at reasonable assessments include system processing rates. Through new metric and following over-the-air software performance and behavior relative to the 30 development efforts such as MPrISM, updates; (6) performing system system’s stated ODD and object and maintenance and calibration; (7) NHTSA will continue researching ways event detection and response (OEDR) to reduce complexity while also addressing safety-related cybersecurity capabilities, as well as fail-safe risks; and (8) system redundancies. evaluating private sector approaches capabilities if/when it is confronted with a goal of facilitating the NHTSA notes that its authorities under with conditions outside its ODD. A the Safety Act are limited to motor advancement of candidate safety second high-level research focus is on performance models and metrics. vehicle safety and, thus, do not functional safety and ADS subsystem authorize the Agency to regulate areas performance. A third research area 4. Other Notable Efforts Under such as general privacy and Consideration as Engineering Measures 31 relevant to this document relates to the cybersecurity unrelated to safety. That cybersecurity of vehicles and systems, said, NHTSA will analyze relevant Various companies and organizations including ADS. Finally, NHTSA is also have begun efforts to develop a aspects of these issues during the researching human factors issues that rulemaking process to the extent framework or at least portions of one. may accompany vehicles equipped with For example, in 2018, RAND required under the Safety Act and when ADS. otherwise required by applicable laws, Corporation issued a report proposing a One key example of NHTSA’s efforts partial framework for measuring safety such as the E-Government Act of 2002. 35 NHTSA requests comment on which to develop safety performance models in ADS-equipped vehicles. In of these aspects the Agency should and metrics is the Instantaneous Safety developing that framework, RAND prioritize as it continues the research Metric (ISM)—a research document considered how to define ADS safety, necessary to develop a safety published in 2017.33 The ISM calculates how to measure ADS safety, and how to framework. NHTSA also seeks comment physically possible trajectories that a communicate what is learned or on whether it has an appropriate role to subject vehicle and other roadway users understood about ADS. The RAND play with any or all of these elements in the surrounding traffic could take report purports to present a framework given a set of possible actions (e.g., to discuss how safety can be measured 28 See Matthew Wood et al., Safety First for steering wheel angles, brake/throttle) in a technology- and company-neutral Automated Driving (2019), pp. 37–46, available at within a preset, finite period of time in way. https://www.aptiv.com/docs/default-source/white- the future and calculates which Another effort is led by NVIDIA, papers/safety-first-for-automated-driving-aptiv- which published a document proposing white-paper.pdf. The above listing omits ‘‘ensure trajectory combinations could result in controllability for the vehicle operator’’ since a a potential multi-actor crash. A metric a framework called the Safety Force 36 vehicle without traditional manual driving controls determined by the number and/or Field that is articulated as a would not have a human operator. proportion of trajectories (and severity/ 29 In an emergency or unusual situation, a vehicle 34 ‘‘Model Predictive Instantaneous Safety Metric should be able to respond/react to orders or probability of the action that leads to for Evaluation of Automated Driving Systems’’. requests from outside its own ADS perceive/plan/ that trajectory) that may lead to a crash Bowen Weng, Sughosh J. Rao, Eeshan Deosthale, execute process. This could be law enforcement, could serve as a proxy for the estimated Scott Schnelle, Frank Barickman, available at: pedestrians, other drivers, or passengers. safety risk associated with the given https://arxiv.org/pdf/2005.09999v1. 30 Prior to transmitting any software update, care snapshot of the driving state. 35 Laura Fraade-Blanar, Marjory S. Blumenthal, should be taken to evaluate the safety of the updates James M. Anderson, Nidhi Kalra, Measuring and the functions they enable or control not only Automated Vehicle Safety—Forging a Framework, in isolation, but also in combination with existing 32 https://www.transportation.gov/av/4. Rand, 2018, available at https://www.rand.org/ software and hardware and the functions they 33 ‘‘A Novel Method to Evaluate the Safety of content/dam/rand/pubs/research_reports/RR2600/ enable or control. Highly Automated Vehicles’’ Joshua L. Every, Frank RR2662/RAND_RR2662.pdf. 31 The Federal Trade Commission is the Federal Barickman, John Martin Sughosh, Rao Scott 36 David Niste´r, Hon-Leung Lee, Julia Ng, and agency that primarily oversees privacy policy and Schnelle, Bowen Weng, Paper Number 17–0076; Yizhou Wang, An Introduction to the Safety Force enforcement, including privacy-related 25th International Technical Conference on the Field, Nvidia. Available at https://www.nvidia.com/ cybersecurity matter. See https://www.ftc.gov/news- Enhanced Safety of Vehicles (ESV), available at content/dam/en-zz/Solutions/self-driving-cars/ events/media-resources/protecting-consumer- http://indexsmart.mirasmart.com/25esv/PDFfiles/ safety-force-field/an-introduction-to-the-safety- privacy-security. 25ESV000076.pdf. force-field-updated.pdf. See also David Niste´r, Hon-

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computational method to assess through operation and interaction with multiple the standards described below are not simulation whether an ADS is independent road users in a given specific to ADS, the principles monitoring its surrounding environment environment). RSS is a mathematical underlying such standards can prove successfully and not taking model for multi-agent safety that useful in ADS development. unacceptable actions. The stated goal incorporates common-sense rules of 1. Functional Safety behind the Safety Force Field is driving while interacting with other avoiding crashes, and it seeks to road users in a way that minimizes the ISO 26262 describes a documentation accomplish this through setting a chance of causing a crash, all while of a process for the evaluation of driving policy that analyzes the operating within normal behavioral functional safety 42 to assist in the surrounding environment and predicts expectations. The method is constructed development of safety-related electrical actions by other road users. Based upon with respect to ‘‘right-of-way’’ rules, and/or electronic (E/E) systems.43 This this analysis, the system would then occluded objects avoidance, and safe framework is intended to be used by seek to determine potential actions that distance maintenance, both manufacturers to integrate functional avoid creating or contributing to unsafe longitudinally and laterally. Mobileye safety concepts into a company-specific conditions that could lead to a crash. also claims that special traffic development framework. Some In early July 2019, 11 companies,37 conditions are covered in the discussion requirements have a clear technical collectively referred to as ‘‘Safety First including intersection with traffic lights, focus to implement functional safety for Automated Driving,’’ released a unstructured roads, and collisions into a product; others address the paper describing safety by design, and involving pedestrians (or other road development process itself and can verification and validation (V&V) users).40 therefore be seen as process methods for ADS.38 This paper states NHTSA is paying close attention to requirements in order to demonstrate an that it aims to address L3 and higher the efforts of other organizations to organization’s capability with respect to levels of automation, and can serve as develop documents related to ADS functional safety. ISO 26262 addresses identified, a useful starting point for examining safety that might be useful from a unreasonable safety risks arising from V&V methods appropriate for ADS. To Federal regulatory perspective. While electrical and electronic failures. The guide safety efforts, the paper identifies this document describes some of those framework is intended to be applied to principles (12 in all) towards addressing efforts, it does not include all. NHTSA safety-related systems that include one safe operation; safety layer; ODD; is also considering how it might harness or more E/E systems that are installed in behavior in traffic; user responsibility; process measures as part of a safety production road vehicles, excluding vehicle-initiated handover; driver- framework. mopeds. ISO 26262 seeks to avoid initiated handover; effects of B. Process Measures—Safety Risk failures associated with electronics automation; safety assessment; data Minimization in the Design, systems—including those related to recording; security; and passive safety. Development, and Refinement of ADS software programming, intermittent These principles are expressed to be Vehicle process measures help an electronic hardware faults, and relevant to ADS, and most of them, organization manage and minimize electromagnetic disturbances—and except those relating to handover to a safety risk by identifying and mitigating mitigate the impact of potential human operator, are indicated to be sources of risk during the design, equipment faults during operation.44 In relevant to L4 and above. development, and refinement of new addition to addressing fault conditions, Finally, several other companies and motor vehicles and motor vehicle it contains hazard analysis and risk organizations have published or are equipment. Unlike engineering assessment provisions, design, developing either documents to guide measures, process measures address verification and validation (V&V) the safe testing and deployment of ADS safety issues that cannot be efficiently or requirements, and safety management or technical approaches to programming thoroughly addressed through the guidance. ADS in order to reduce the likelihood of FMVSS approach to testing, since ISO 26262 seeks to ensure systems facing crash-imminent situations. For process standards help to ensure have the capability to mitigate failure example, Intel’s Mobileye published a reliability and robustness of designs risk sufficiently for identified hazards. document proposing a framework called The needed amount of mitigation 39 over the life of the vehicle, and in Responsibility Sensitive Safety (RSS), ‘‘edge’’ cases—both of which are depends upon the severity of a potential intended to address issues with multi- difficult or impossible to verify through loss event, operational exposure to agent safety (defined by them as safe one-time testing a finished vehicle. hazards, and human driver Careful adherence to process standards controllability of the system when Leung Lee, Julia Ng, and Yizhou Wang, Safety Force failure occurs. These factors combine Field, Nvidia. Available at https://www.nvidia.com/ can enhance the safety of finished motor content/dam/en-zz/Solutions/self-driving-cars/ vehicles substantially.41 While some of into an Automotive Safety Integrity safety-force-field/the-safety-force-field.pdf. Level (ASIL) per a predetermined risk 37 The 11 companies that comprise Safety First for 40 Mobileye, Implementing the RSS Model on Automated Driving are: Audi, BMW, Aptiv, Baidu, NHTSA Pre-Crash Scenarios, p. 3. Available at https://www.nap.edu/catalog/13342/trb-special- Continental, Daimler, Fiat Chrysler Automobiles, https://www.mobileye.com/responsibility-sensitive- report-308-the-safety-challenge-and-promise-of- Here, Infineon, Intel and Volkswagen. safety/rss_on_nhtsa.pdf. automotive-electronics and http://www.omg.org/ 38 ‘‘Safety First for Automated Driving,’’ available 41 Transportation Research Board Special Report hot-topics/documents/Safety-Promise-and- at https://newsroom.intel.com/wp-content/uploads/ 308, The Safety Promise and Challenge of Challenge-of-Automotive-Electronics-TRB-2012.pdf. sites/11/2019/07/Intel-Safety-First-for-Automated- Automotive Electronics: Insights from Unintended 42 Functional safety is the absence of risk caused Driving.pdf. Acceleration, 2012. The Board is part of the by a system malfunction typically involving an 39 Shai Shalev-Shwartz, Shaked Shammah, and National Research Council, which is, in turn, part electronic control system. Amnon Shashua, On a Formal Model of Safe and of the National Academies of Sciences, Engineering, 43 See https://www.iso.org/standard/68383.html. Scalable Self-driving Cars, Mobileye, 2017. and Medicine. At pages 87–88, this report describes 44 Van Eikema Hommes, Q.D. (2016, June). Summary available at https://newsroom.intel.com/ the role that process measures could play in Assessment of safety standards for automotive newsroom/wp-content/uploads/sites/11/2017/10/ meeting the challenges presented by electronic electronic control systems. (Report No. DOT HS 812 autonomous-vehicle-safety-strategy.pdf and https:// systems and their ‘‘hardware components’’ and 285). Washington, DC: National Highway Traffic newsroom.intel.com/editorials/paving-way-toward- ‘‘software components.’’ The report is available on Safety Administration, available at https:// safer-roads-all/#gs.8qhmve. Full paper available at a number of online sites, including http:// www.nhtsa.gov/sites/nhtsa.dot.gov/files/812285_ https://arxiv.org/pdf/1708.06374.pdf. onlinepubs.trb.org/onlinepubs/sr/sr308.pdf and electronicsreliabilityreport.pdf.

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table. The assigned ASIL for a function • Issues arising from operational could use to consider the minimum determines which technical and process environment (weather, infrastructure, performance of an ADS or a minimum mitigations should be applied, etc.); risk threshold an ADS must meet within including specified design and analysis • Identifying and filling requirement the context of Vehicle Safety Act tasks that must be performed.45 gaps (removing ‘‘unknowns’’); and requirements. • Enumerating operational 2. Safety of the Intended Functionality scenarios.48 IV. Safety Framework—Administrative The safety of ADS is also linked to Mechanisms for Implementation and 3. UL 4600 other factors such as conceivable human Oversight misuse of the function, performance UL has developed ‘‘UL 4600: This section describes a variety of limitations of sensors or systems, and Standard for Safety for the Evaluation of mechanisms that could be used, unanticipated changes in the vehicle’s Autonomous Products,’’ a draft singularly or in combination, to environment.46 voluntary industry standard that states implement the elements of a safety Safety of the Intended Functionality to take a safety case approach to framework.53 The possibility that (SOTIF) attempts to prevent ensuring the safety of ADS.49 The multiple mechanisms might ultimately insufficiencies of the intended published safety case approach includes be used does not mean that they could functionality or reasonably foreseeable three primary elements: Goals, or would need to be implemented in the misuse by persons. ISO 21448 is a safety argumentation, and evidence; each of same timeframe. While some standard for driver assistance functions which is stated to support the previous mechanisms could be implemented in that could fail to operate properly even element to build an overarching safety the near term, others would need to be if no equipment fault is present. SOTIF case. The expressed goals are stated to developed through additional research does not apply to faults covered by the be the same as ADS-related safety goals and then validated before they could be ISO 26262 series or to hazards directly that an organization would be trying to implemented. Thus, the mechanisms caused by the system technology (e.g., achieve. The argumentation is claimed could be adopted and implemented, if eye damage from a laser sensor). Rather, to describe the organization’s analysis and when needed, in a prioritized and SOTIF works in tandem with ISO 26262 for why it thinks the system has met phased manner.54 Implementation of to help a manufacturer assess and that goal. Finally, evidence is what the some types of mechanisms might rarely mitigate a variety of risks during the organization would consider to be be necessary, while others may be development process, with ISO 26262 sufficient to show that its arguments are temporary until different mechanisms focusing on mitigating failure risk and reasonable and support the would take their place. ISO 21448 mitigating foreseeable system organization’s assertion that it has met The array of available mechanisms 50 misuse. its safety goal. Preliminary versions of roughly falls into either of two ISO 21448 is intended to be applied the document were released in 2019, categories: (1) Voluntary mechanisms to intended functionality where proper and UL released its most recent version for monitoring, influencing and/or 51 situational awareness is critical to of UL 4600 on April 1, 2020. Like ISO encouraging greater care; and (2) safety, and where that situational 26262 and 21448, UL 4600 is a process- regulatory mechanisms. The former awareness is derived from complex focused standard that is intended for group includes voluntary disclosure, the sensors and processing algorithms; use by the manufacturers in developing New Car Assessment Program, and especially emergency intervention ADS. However, unlike those ISO guidance. The latter group includes systems (e.g., active safety braking standards, UL 4600 was developed FMVSS and any other compulsory 52 systems) and Advanced Driver primarily for ADS. requirements. Assistance Systems (ADAS) with SAE With the descriptions of Functional A. Voluntary Mechanisms driving automation Levels 1 and 2 on Safety, SOTIF, and UL 4600 as the SAE standard J3016 automation background, NHTSA is considering how NHTSA can establish various scales. Per SAE International, the it might make use of these process mechanisms to gather or generate standard can be considered for higher standards in the context of developing information about: • levels of automation, though additional a new framework concerning ADS, How developers are analyzing the 47 based either in regulation or providing safety of their ADS; measures might be necessary. • ISO 21448 primarily considers guidance. Traditional FMVSS may not how developers are identifying mitigating risks due to unexpected be suitable for addressing certain critical potential safety risks of those systems; safety issues relating to aspects of the and operating conditions (the intended • function might not always work in such core safety functions of perception, what methods developers are conditions due to limitations of sensors planning, and control. NHTSA requests choosing to mitigate those risks. and algorithms) and gaps in comment on the specific ways in which This information could: (1) Enable the requirements (lack of complete Functional Safety, SOTIF, and/or UL Agency to take proactive actions to description about the actual intended 4600 could be adopted, either modified encourage the development of function). Highlights of this standard or as-is, into a mechanism that NHTSA innovative technologies in a manner include covering: that allows them to reach their full • Insufficient situational awareness; 48 Philip Koopman, et al, A Safety Standard safety potential; (2) help the Agency • Foreseeable misuse and human- Approach for Fully Autonomous Vehicles. 49 See https://edge-case-research.com/ul4600/. 53 machine interaction issues; The Agency notes that while some of the 50 Philip Koopman, An Overview of Draft UL mechanisms described in this document could be 4600: ‘‘Standard for Safety for the Evaluation of implemented through rulemaking pursuant to the 45 Id. Autonomous Products,’’ June 20, 2019, available at Vehicle Safety Act, others are more suited to take 46 Peters Els, Rethinking Autonomous Vehicle https://medium.com/@pr_97195/an-overview-of- the form of guidance. Functional Safety Standards: An Analysis of SOTIF draft-ul-4600-standard-for-safety-for-the- 54 A phased approach is how the Agency is also and ISO 26262, March 25, 2019, available at https:// evaluation-of-autonomous-products-a50083762591. modernizing the FMVSS for ADS-equipped vehicles www.automotive-iq.com/autonomous-drive/ 51 See https://www.shopulstandards.com/ without traditional manual controls, and may be the articles/rethinking-autonomous-vehicle-functional- ProductDetail.aspx?productid=UL4600. more expedient way to make progress while safety-standards-an-analysis-of-sotif-and-iso-26262. 52 See https://www.eetimes.com/safe-autonomy- continuing necessary research and other work in 47 See https://www.iso.org/standard/70939.html. ul-4600-and-how-it-grew/#. the background.

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avoid taking action that hampers safety throughout the country where NHTSA, 2. New Car Assessment Program (NCAP) innovation or otherwise adversely affect State and local governments, Short of setting a safety standard, an safety; and (3) support the Agency’s automakers, and ADS developers share ADS competency evaluation could be existing programs by helping the information about activities. AV TEST is added in NCAP. While an FMVSS Agency become more responsive to new also expected to result in a website for obstacle-course performance test, technologies. To the extent ADS companies to share information with the standing alone, would likely be developers make such information public about their vehicles, including inadequate to evaluate ADS available to the Agency and the public, details of on-road testing. competence, such a test might form a competing developers may be One type of administrative useful foundation for consumer encouraged to place greater emphasis on mechanism under consideration is to information under the NCAP program. safety and improve transparency on use guidance to encourage the This evaluation could be developed and their efforts in that regard. development of a safety case by used to measure the relative manufacturers. As used in this performance of an ADS in navigating a 1. Safety Self-Assessment and Other document, a safety case is ‘‘a structured Disclosure/Reporting variable environment (within argument, supported by a body of established operational ranges) and Demonstrating the safety of ADS is evidence that provides a compelling, complex set of interactions with critical for facilitating public confidence comprehensible, and valid case that a stimulus road users (e.g., dummy and acceptance, which may lead to system is safe for a given application in vehicles, pedestrians, and cyclists) on a increased adoption of the technology. 57 a given operating environment.’’ For course, with note made of variances in Entities involved in the development NHTSA’s purposes, ‘‘valid’’ as used in the manner in which the course was and deployment of automation this context means ‘‘verifiable.’’ Such an completed. All ADS-equipped vehicles technology have an important role in administrative mechanism might be could be expected to avoid collisions their responsibilities for safety implementable more quickly than other (including avoiding causing collisions), assurance of ADS-equipped vehicles mechanisms and could allow vehicle while adhering to a driving model that and in providing transparency about and equipment manufacturers flexibility minimizes the risks of getting into their systems are achieving safety. in documenting the competence of their ADS 2.0 provided guidance to crash-imminent situations and ADS in performing sensing, perception, observing operational limitations, such stakeholders regarding the safe design, planning, and control of its intended testing, and deployment of ADS. This as limits on rates of acceleration and functions. It may be possible, within the deceleration and limits on absolute document identified 12 safety elements limits of administrative feasibility, to that ADS developers should consider speed. Additionally, operational data tailor some aspects of these relating to crash avoidance performance, when developing and testing their demonstrations to a vehicle’s design technologies.55 ADS 2.0 also introduced as well as ‘‘nominal’’ driving behaviors purpose and intended scope of (e.g., lane-keeping ability), could be the concept of a Voluntary Safety Self- operation. Another, more extensive, Assessment (VSSA), which is intended collected during ‘‘on-road driving’’ and means of increasing transparency of could be used to contribute to an overall to encourage developers to demonstrate how a company developed its ADS to the public that they are: Considering safety performance assessment method. would be for the developer to disclose Relatedly, an NCAP program could the safety aspects of an ADS; (e.g., to NHTSA and/or the public) some provide comparative data on the communicating and collaborating with or all its safety case. This disclosure occupant protection afforded by ADS the U.S. DOT; encouraging the self- would provide the results of applying vehicles. establishment of industry safety norms; the company’s own stated performance The information NCAP provides and building public trust, acceptance, metrics, metric thresholds, and test empowers consumers to compare the and confidence through transparent procedures, and how those results 56 relative safety of new vehicles and to testing and deployment of ADS. justify its belief that its vehicle is make informed vehicle-purchasing Entities were encouraged to functionally and operationally capable decisions. This information has demonstrate how they address the of performing each of the core elements encouraged automakers to compete 58 safety elements contained in A Vision of ADS safety performance. based upon improving safety— for Safety by publishing a VSSA on their encouraging safety advancements and websites. NHTSA believes that VSSAs 57 As used in this document, the term ‘‘safety swift adoption of performance are an important tool for companies to case’’ has the same meaning as that term is used by Philip Koopman, Aaron Kane, and Jen Black in improvements that improve the safety of showcase their approach to safety their paper, Credible Autonomy Safety motor vehicles. For example, with the without needing to reveal proprietary Argumentation, 2019. The article is available at inclusion of static and dynamic rollover intellectual property. The Agency hopes https://users.ece.cmu.edu/∼koopman/pubs/ _ _ prevention tests into the NCAP program that VSSAs show the public that how Koopman19 SSS CredibleSafetyArgumentation .pdf. See also Philip Koopman, ‘‘How to keep self- in 2001 and 2003, NHTSA encouraged these companies are addressing safety driving cars safe when no one is watching for the advancement and further and how safety considerations are built dashboard warning lights,’’ The Hill, June 30, 2018, deployment of safety improving into the design and manufacture of available at https://thehill.com/opinion/technology/ 394945-how-to-keep-self-driving-cars-safe-when-no- technologies—notably electronic ADS-equipped vehicles that are tested one-is-watching-for-dashboard. stability control—to prevent rollover on public roadways. As of June 2020, 23 58 See, e.g., Koopman, Philip, ‘‘How to keep self- crashes. This deployment took place developers and automakers have driving cars safe when no one is watching for more than 10 years before a FMVSS for published VSSAs, which represents a dashboard warning lights,’’ June 30, 2018. Available electronic stability control went into at https://thehill.com/opinion/technology/394945- significant portion of the industry. 59 how-to-keep-self-driving-cars-safe-when-no-one-is- effect. In part because of the market Another voluntary reporting watching-for-dashboard. See also Bryant Walker demand triggered by that mechanism aimed at transparency is Smith, Regulation and the Risk of Inaction in encouragement, 29 percent of MY 2006 NHTSA’s AV TEST Initiative, which Autonomous Driving: Technical Legal and Social vehicles already had ESC voluntarily involves both a series of events Aspects, at 571–587, (Markus Maurer, J. Christian Gerdes, Barbara Lenz, and Hermann Winner, editors, 2016), available at https:// 59 While the NPRM for the creation of FMVSS No. 55 Id., pp. 5–15. link.springer.com/content/pdf/10.1007%2F978-3- 126 was issued in 2006, the new standard did not 56 Id., p. 16 662-48847-8.pdf. apply until MY 2012.

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installed. NCAP’s power to provide standards and practices as they continue from Nuro, Inc. for a low-speed (25 mph safety-relevant information to to develop. maximum), electric-powered consumers, thus driving consumer Issuing guidance, working with States occupantless delivery vehicle that will demand for safety improvements in the and developers to deepen be operated by an ADS.65 In NHTSA’s market, could similarly be harnessed communications, identifying for notice granting the petition for and applied to ADS performance. manufacturers critical safety aspects exemption, the Agency stated: ‘‘NHTSA generally applicable to ADS, and has determined that it is in the public 3. Operational Guidance exercising safety oversight using interest to establish a number of NHTSA’s existing broad enforcement reporting and other terms of deployment At the current stage in the 63 development of the technologies needed authorities have, for the most part, of the vehicles that will apply for wide-scale deployment of ADS, the been NHTSA’s approaches to the throughout the useful life of these development of ADS thus far. NHTSA vehicles—violation of which can result specific areas for which regulatory expects that these will continue to be in the termination of this exemption.’’ 66 intervention might be most needed the Agency’s approaches to ADS for the The terms include post-crash reporting, remain uncertain and the appropriate foreseeable future while it conducts the periodic reporting, cybersecurity, and regulatory performance metrics and research necessary to develop other general requirements.67 safety thresholds remain unknown. The meaningful performance tests and NHTSA also maintains a process for Department has therefore sought to metrics and while it closely monitors the temporary importation of enhance safety through voluntary changes occurring in the private noncompliant vehicles into the Unites guidance, instead of mandatory development of ADS and business States for research, demonstration, requirements. The Agency is requesting models that surround the technology. testing, and other purposes.68 For comment on whether developing further B. Regulatory Mechanisms entities other than manufacturers of guidance on engineering and process certified motor vehicles, approval of a measures remains the most appropriate That said, the Agency believes that, at 60 temporary exemption comes in the form approach. some point, regulation of the ADS will of written permission from NHTSA that To ensure due process and likely be necessary and is exploring the importer may import the appropriate consideration of views of ways it could appropriately regulate noncompliant vehicle.69 When NHTSA stakeholders and the general public in ADS, being mindful of the need to avoid began receiving requests for exemptions the development of guidance, certain creating unnecessary barriers to to import ADS-equipped vehicles for guidance documents are subject to innovation or unintended safety risks. research and demonstration purposes, public comment—in accordance with As discussed above, many stakeholders NHTSA determined that additional Department of Transportation are already exploring a variety of requirements were necessary to exercise Regulations on Guidance Documents 61 approaches to assessing ADS oversight and monitor the safety of the and Executive Order 13891.62 That said, performance and measuring ADS safety. exempt vehicles’ operations. NHTSA guidance documents, as they simply The following explores what regulatory may condition approval for importation recommend rather than require actions mechanisms the Agency is currently of a noncompliant vehicle on specific by regulated entities, are more using and how future approaches might terms and conditions.70 Similar to the appropriate at this early stage in the be incorporated into the FMVSS, either terms that accompany a grant of a development of ADS and ADS-equipped separately or together and in petition for exemption, the terms that vehicles, reserving mandatory conjunction with non-regulatory importers are required to meet depend requirements for when the technology is mechanisms. upon the information included in the sufficiently mature and actual safety 1. Mandatory Reporting and/or petition, and are generally established to needs have been more clearly identified. Disclosure mitigate risks. Many of the terms Guidance documents also provide the required of Nuro have also been In addition to the voluntary reporting/ required for importers who have agency greater flexibility in making disclosure activities discussed in the recommendations, as they do not need received permission to import a non- previous section, NHTSA has also taken compliant ADS-equipped vehicle. Some to meet the strict requirements that steps to require the disclosure and FMVSS must meet and are generally examples of additional terms and reporting of certain information in the conditions added to permission letters easier to adopt and modify than context of exemptions. NHTSA recently mandatory requirements issued in a for vehicles equipped with ADS conditioned the Agency’s grant of a include: requiring that the FMVSS. The Agency, therefore, would petition for temporary exemption on a likely be able to develop and update noncompliant vehicle be used only in set of terms that include mandatory the ways described in the application; these guidance documents more reporting of information on the quickly, and design them to be more annual reporting on the status of all operation of the vehicles equipped with vehicles granted temporary exemptions; reflective of consensus industry 64 ADS. The petition for exemption was disengagement reporting; and reporting incidents of near misses, situations in 60 This approach has been recognized by WP 29. 63 NHTSA has broad investigatory and See https://www.unece.org/fileadmin/DAM/trans/ enforcement authority relating to motor vehicle which the trained operator acted to doc/2019/wp29/ECE-TRANS-WP29-2019-34- safety. While NHTSA can order a recall for FMVSS avoid an imminent crash, deviations rev.1e.pdf. With respect to engineering measures, non-compliance, it can also order a recall when it the development of guidance is often based upon learns of a defect in the design, construction, or 2020-02668/nuro-inc-grant-of-temporary- much of the same work that would lead to the performance of a vehicle or item of equipment that exemption-for-a-low-speed-vehicle-with-an- development of industry standards, i.e., the poses an unreasonable risk to motor vehicle safety automated-driving-system. development and validation of performance that increases the likelihood of a crash occurring or 65 Id. metrics, performance thresholds, and test increases the likelihood of injury or death should 66 procedures. a crash occur. In fact, the vast majority of recalls Id., p. 7827. 61 49 CFR 5.25, et seq. are issued for safety related defects that having 67 Id., p., 7840. 62 Executive Order 13891, ‘‘Promoting the Rule of nothing to do with FMVSS. 68 49 U.S.C. 30114; 49 CFR part 591. Law Through Improved Agency Guidance 64 85 FR 7826 (Feb. 11, 2020), available at https:// 69 49 U.S.C. 30114; 49 CFR part 591. Documents’’ Oct. 9, 2019. www.federalregister.gov/documents/2020/02/11/ 70 49 CFR 591.6(f)(2).

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from the prescribed route, and computerized electronic systems of In addition, each FMVSS must be unexpected lane departures. motor vehicles have been determined to objective and practicable.77 The Sixth contain a safety defect and thus become Circuit has held that the FMVSS 2. NHTSA’s FMVSS Setting Authority the subject of a recall campaign.73 objectivity requirement means that NHTSA has broad jurisdiction over The Safety Act defines ‘‘motor vehicle compliance with an FMVSS standard motor vehicle safety pursuant to the safety standard’’ as ‘‘a minimum must be susceptible to objective Safety Act (49 U.S.C. Chapter 301), the standard for motor vehicle or motor measurements, which are capable of purpose of which is ‘‘to reduce traffic vehicle equipment performance.’’ 74 repetition.78 Each FMVSS must also be accidents and deaths and injuries This definition contemplates that each reasonable, practicable, and appropriate resulting from traffic accidents.’’ The FMVSS (1) regulates one or more for each type of vehicle to which it Safety Act defines ‘‘motor vehicle identified aspects of vehicle or applies.79 In the interest of safety’’ as inclusive of both operational equipment performance, and (2) transparency, and as a matter of due and nonoperational safety. Specifically, specifies a minimum threshold for each process, each FMVSS must also give ‘‘‘motor vehicle safety’ means the of those aspects of performance (i.e., a reasonable notice of what performance performance of a motor vehicle or motor required level of that aspect of is required and how compliance will be vehicle equipment in a way that performance that regulated products determined.80 protects the public against unreasonable must at least equal to protect against NHTSA has broad authority to issue risk of accidents occurring because of unreasonable risk of crashes or FMVSS. ‘‘[T]he Agency is empowered to the design, construction, or performance unreasonable risk of death or injury in issue safety standards which require of a motor vehicle, and against a crash). Such a threshold serves as a improvements in existing technology or unreasonable risk of death or injury in clear separation of compliant from which require the development of new an accident, and includes noncompliant products. In the event of technology, and it is not limited to nonoperational safety of a motor noncompliance, the threshold also aids issuing standards based solely on vehicle.’’ 71 NHTSA in determining the nature and devices already fully developed.’’ 81 The Safety Act authorizes the extent of the needed remedy and in However, NHTSA has learned from issuance of FMVSS for motor vehicles determining the seriousness of the previous experiences that establishing and motor vehicle equipment and the noncompliance, which, in turn, is FMVSS prior to technology readiness recall and remedy of motor vehicles and relevant in determining the appropriate can lead to adverse safety consequences. equipment failing to comply with a amount of any civil penalty. Specifying Motor vehicles are extraordinarily FMVSS or containing a defect that poses minimum levels of safety performance complicated machines that are massive an unreasonable risk to safety. The in a standard also enables the Agency to and move at very high speeds. When FMVSS are intended to be uniform estimate the benefits and the costs of setting a performance standard not national standards so that compliant complying with a standard and appropriately grounded in the vehicles can be sold throughout the determine what level of stringency capabilities of technologies employed to United States.72 maximizes net benefits, as contemplated meet the standard, unexpected Among the products that fall within by Executive Order 12866 75 and consequences can result. For instance, the scope of this authority are all Department of Transportation one of the foundational court decisions vehicle systems and their parts and regulations.76 regarding FMVSS involved the Agency’s components. Modern computer- controlled electronic systems, like 73 See Addendum B for a list of examples of identified market failures or specific statutory object detection and identification software-related recalls. mandates. systems needed to protect vulnerable 74 49 U.S.C. 30102(a)(9) (emphasis added). (g) Unless required by law or compelling safety 75 Available at https://www.archives.gov/files/ need, regulations should not be issued unless their road users, automatic emergency federal-register/executive-orders/pdf/12866.pdf. benefits are expected to exceed their costs. For each braking systems, and air bag systems, 76 49 CFR 5.5. This regulation requires the new significant regulation issued, agencies must are composed of hardware and software following when developing or issuing regulations, identify at least two existing regulatory burdens to components, both of which are including regulations to establish FMVSS: be revoked. (h) Once issued, regulations and other agency necessary to the functioning of those (a) There should be no more regulations than necessary. In considering whether to propose a new actions should be reviewed periodically and revised systems. Without their software regulation, policy makers should consider whether to ensure that they continue to meet the needs they components, computer-controlled the specific problem to be addressed requires were designed to address and remain cost-effective electronic systems are merely non- agency action, whether existing rules (including and cost-justified. functional assemblages of hardware standards incorporated by reference) have created (i) Full public participation should be encouraged or contributed to the problem and should be revised in rulemaking actions, primarily through written components, incapable of protecting or eliminated, and whether any other reasonable comment and engagement in public meetings. anyone. NHTSA has used its authority alternatives exist that obviate the need for a new Public participation in the rulemaking process to specify how and when the hardware regulation. should be conducted and documented, as appropriate, to ensure that the public is given components of complex electronic (b) All regulations must be supported by statutory authority and consistent with the Constitution. adequate knowledge of substantive information systems, such as advanced air bags and (c) Where they rest on scientific, technical, relied upon in the rulemaking process. anti-lock braking systems, must activate economic, or other specialized factual information, (j) The process for issuing a rule should be and perform. This performance-oriented regulations should be supported by the best sensitive to the economic impact of the rule; thus, available evidence and data. the promulgation of rules that are expected to approach gives manufacturers freedom impose greater economic costs should be to develop the software components (d) Regulations should be written in plain English, should be straightforward, and should be accompanied by additional procedural protections needed to control the performance of clear. and avenues for public participation. 77 each system’s hardware components. (e) Regulations should be technologically neutral, 49 U.S.C. 30111(a). NHTSA has also repeatedly exercised its and, to the extent feasible, they should specify 78 See Chrysler Corp. v. Dep’t of Transp., 472 F.2d authority over software when the performance objectives, rather than prescribing 659, 675–76 (6th Cir. 1972) (citing House Report specific conduct that regulated entities must adopt. 1776, 89th Cong. 2d Sess.1966, p. 16). software components of the 79 (f) Regulations should be designed to minimize 49 U.S.C. 30111(b)(3). burdens and reduce barriers to market entry 80 See United States v. Chrysler Corp. 158 F.3d 71 49 U.S.C. 30102(a)(9). whenever possible, consistent with the effective 1350, 1354 (D.C. Cir. 1972). 72 Truck Safety Equipment Institute vs. Kane, 466 promotion of safety. Where they impose burdens, 81 Chrysler Corp. v. Dep’t of Transp., 472 F.2d F. Supp. 1242, 1250 (M.D.Pa.1979). regulations should be narrowly tailored to address 659, 673 (6th Cir. 1972).

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establishment of braking standards for regulation halted the technology at too speed).88 As a result, determining which air brake-equipped trucks, tractor- early a stage in its development. class a vehicle falls into involves a trailers, and buses—mandating stopping NHTSA has typically used its FMVSS relatively simple, quick, and objective distances far shorter than achieved in authority either to mandate the process. large trucks that were built at the time.82 installation of a proven technology by Developers of ADS are taking a variety The stopping distance requirements way of performance standards to of approaches to the vehicles that utilize required the entire industry to design address a safety need and subject the their systems. Some are testing their completely new braking systems. The technology to minimum performance systems in fully FMVSS-compliant Agency was aware that the shorter requirements, or to regulate voluntarily vehicles, others are exploring alternative stopping distances would increase the installed technology by subjecting the vehicle designs that would not comply likelihood of wheel lock-up, so the technology to minimum performance with some or even all of the current standard also required that the stops be safety requirements. In most instances, FMVSS, and even others are simply made without wheel lock-up—which when NHTSA has mandated the developing the ADS without a particular effectively (although not explicitly) installation of a technology by way of vehicle type in mind—something that required manufacturers to develop and performance standards, it has not done could be retrofit into an existing vehicle, install antilock computers on each axle. so until the technology is fully or a system that could be sold to These antilock devices proved developed and mature, so that all buyers automakers. NHTSA expects that unreliable,83 and, combined with the of new vehicles have the protection of existing vehicle classes will remain more-powerful newly designed braking that technology. An example of this relevant for many purposes. Yet, new practice is Electronic Stability Control systems, resulted in increased risk of classes of vehicles may emerge as (ESC). ESC development for passenger companies begin to consider all the loss of control resulting from wheel cars began in the late 1980s, and three possible uses and business models lock-up. Further, the susceptibility of manufacturers voluntarily installed the available for their systems. The need to early sensors to outside interferences systems on some of their vehicles by define any new class in the context of resulted in circumstances where some 1995.86 After NHTSA evaluated real the FMVSS has not been determined. trucks lost the use of brakes entirely. In word data and realized the beneficial invalidating requirements under the 3. Applying the Established FMVSS effect of ESC in preventing crashes, standard, the Court of Appeals for the Framework to ADS Safety Principles NHTSA undertook a rulemaking to Ninth Circuit found that ‘‘because of establish FMVSS No. 126, ‘‘Electronic NHTSA believes that the critical unforeseen problems in the stability control systems for light relationship between the safety of an development of the new braking vehicles.’’ By the time a proposal was ADS’s design and the vehicle’s decision- systems, the Standard was neither issued for FMVSS No. 126, 29 percent making system makes it necessary to reasonable nor practicable at the time it of MY 2006 vehicles sold in the U.S. evaluate the safety of ADS performance 84 was put into effect.’’ The Court also were already voluntarily equipped with considering appropriate and well- explained that NHTSA must ‘‘ascertain, ESC.87 Given the profound benefits of defined ODD (for any system below with all reasonable probability, that its ESC, NHTSA’s rulemaking impelled the Level 5). For example, if an ADS is safety regulations do not produce a expedited installation of ESC in the capable of only operating at speeds more dangerous highway environment vehicle fleet. While this has been a below 30 miles per hour (mph), it is than that which existed prior to common practice, of establishing reasonable and necessary to assess the 85 governmental intervention.’’ performance standards and mandating system at speeds below 30 mph. NHTSA Given the rapidly evolving state of that certain vehicles be equipped with might also consider whether it would be ADS technology, NHTSA is taking care a system that meets those performance appropriate to require that the vehicle that its actions do not result in requirements, it is too soon to tell if this be designed so that it cannot operate unforeseen problems in the will be the best path forward for ADS. automatically at speeds of 30 mph or development or deployment of ADS. Furthermore, there are notable more unless and until it acquires the Establishing FMVSS prior to technology instances in which NHTSA has capability (e.g., through software updates) of safely operating readiness hampers safety-improving regulated voluntarily installed automatically above that speed. innovation by diverting developmental technologies by simply establishing Similarly, if a vehicle would become resources toward meeting a specific minimum safety performance incapable of operating safely if one or standard. Such a regulatory approach requirements, as opposed to mandating more of its sensors became non- could unnecessarily result in the the installation of a technology, include functional, NHTSA might consider Agency establishing metrics and when the Agency anticipated the whether it would be appropriate to standards without a complete introduction of electric and compressed require that the vehicle be designed so understanding of the technology or natural gas vehicles and fuel systems, that it can detect those problems and safety implications and result in and issued standards to guard against either cease to operate automatically in unintended consequences, including risks of electric shock and explosion. a safe manner in those circumstances (in loss of potential benefits that could have Also, existing classes of vehicles (e.g., the case of a vehicle designed to operate been attained absent government passenger cars, trucks, buses, either manually or automatically) or intervention, a false sense of security, or motorcycles, and low speed vehicles) operate automatically in a reduced or even inadvertently creating additional subject to the existing FMVSS are based largely on observable physical features ‘‘limp home’’ manner only. risk by mandating an approach whose State and local authorities also play effects had not been known because (e.g., number of designated seating positions) or objectively measurable critical roles in roadway safety. Through specifications (e.g., gross vehicle weight establishing and enforcing their rules of 82 Paccar, Inc. v. Nat’l Highway Traffic Safety the road, these authorities have Admin., 573 F.2d 632 (9th Cir. 1978) rating) or performance (e.g., top 83 Failure rates well over 50% were reported. Id. traditionally controlled such operational at 642 86 http://knowhow.napaonline.com/electronic- matters as the speed at which vehicles 84 Id. at 640. stability-control-a-short-history/. may be driven and the condition of 85 Id. at 643. 87 Id. certain types of safety equipment, such

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as headlamps and taillamps. In the ensure that the new requirements do not conditions within a given system’s ODD, as future, it is reasonable to expect that become unintended obstacles to the use well as sudden and unpredictable actions by such authorities may establish new of new technologies. In other words, the other road users. Test procedures could also rules of the road to address ADS- Agency should take care not to assume be developed to ensure that an ADS does not operate outside of the ODD established by the equipped vehicles specifically. NHTSA that the specific technologies used in manufacturer. Standards could provide for a could require that ADS be designed today’s vehicles will be used in future range of potential behaviors—e.g., speed, such that they must follow all vehicle designs. Future standards— distance, angles, and size—for surrogate applicable traffic laws in the areas of particularly those that mandate vehicles vehicles, pedestrians, and other obstacles operation, thereby supporting State and be equipped with a certain technology— that ADS-equipped vehicles would need to local efforts to ensure their traffic laws may be better approached by focusing detect and avoid.91 92 are observed. That said, NHTSA expects on objective vehicular functionality as However, physical testing of ADS that the States and localities would opposed to the performance of a specific functions through an obstacle course enforce those rules if broken, just as discrete system. A new generation of with a wide range of potential scenarios they would today. FMVSS should give the manufacturers and conditions would not be without its of vehicles, sensors, software, and other 4. Reforming How NHTSA Drafts New own limitations. While physical technologies needed for ADS sufficient FMVSS To Keep Pace With Rapidly obstacle course testing may be flexibility to change and improve Evolving Technology appropriate and even necessary as part without the need for frequent of a future FMVSS regulating ADS As the functions and capabilities of modifications to the regulations. Such competency, such a test is likely not modern motor vehicles are increasingly an approach may also benefit the safety sufficient to meet the need for safety in defined and controlled by software, of future vehicles through more flexible and of itself. Testing an ADS is expected vehicles will likely continue to change standards that focus more on the safety to be different from the physical testing and improve through software updates outcome, rather the performance of any considered sufficient for today’s that occur during the lifetime of the specific technology.89 vehicles. No physical obstacle course vehicle. Likewise, the more quickly What may be needed, then, is a new would come close to replicating the vehicle systems can change, the greater approach to structuring and drafting infinite number of driving scenarios an the risk that the current regulatory standards that places greater reliance on ADS would be expected to navigate requirements may unnecessarily more general, but still objective, safely, nor the complexity of the driving interfere with innovation, and that the specifications of the types and required situations that ADS might encounter on slow pace of the regulatory process to levels of performance.90 the roads. address unnecessary barriers may delay 5. Examples of Regulatory Approaches The level of ADS competency the introduction of new safety required to handle such diversity and improvements. Below NHTSA provides some complexity is partly why ADSs are The nature and requirements of the examples of potential regulatory developed using a variety of verification rulemaking process may challenge the approaches that the Agency could and validation tools when exposing the Agency’s efforts to amend existing consider including in a safety ADS to different scenarios during FMVSS and develop, validate, and framework. These examples are not development. ADS developers generally establish new FMVSS quickly enough to intended to propose any particular use an iterative process that includes enable the Agency to keep pace with the approach. Instead, they highlight some simulations, closed-course testing, and expected rapid rate of technological of the future approaches on which on-road testing during development and change. Some aspects of the process are NHTSA would like feedback. demonstration to expose the ADS to as inherent and, thus, unavoidable, such as a. FMVSS Requiring Obstacle Course- many variables as reasonably possible, the often lengthy period needed for Based Validation in Variable Scenarios while also transferring information from preparatory research to develop and and Conditions each of those methods of testing back to validate performance metrics and test the others to help ensure each method procedures and for the rulemaking A performance-oriented, outcome- based FMVSS could be developed along includes as many variables as possible. process to propose, take and consider Situations that occur during on-road comment, and eventually adopt the one or more of the lines stated in ‘‘AV testing are important information for metrics and procedures. 3.0’’: developers to include in the simulations There are, however, other aspects of Performance-based safety standards could used on ADS, and vice versa, with the process that are not only amenable require manufacturers to use test methods, scenarios from the simulations being to reform, but that are also likely needed such as sophisticated obstacle-course-based important to validate in the physical to change for expedient application to test regimes, sufficient to validate that their world through on-road testing. Though future technologies. Some portions of ADS-equipped vehicles can reliably handle this iterative testing is normal for the the existing FMVSS might be seen as the normal range of everyday driving scenarios as well as unusual and development process, it may also overly specific, and insufficiently unpredictable scenarios. Standards could be indicate how challenging it might be for technologically neutral. If a new designed to account for factors such as an obstacle-course test administered by generation of safety standards and other variations in weather, traffic, and roadway a third party to include an adequate safety regulations is determined to be number and type of scenarios to test needed for ADS, they might be written, 89 NHTSA has always sought to draft the FMVSS ADS competency, while also ensuring to the extent allowed by the law, so that requirements broadly enough to permit use of both they do not have the effect of current technologies and possible future systems, but the rapid pace of development of ADS and other 91 Page 7. Available at https:// inadvertently locking future ADS into advanced technologies makes this objective more www.transportation.gov/sites/dot.gov/files/docs/ today’s hardware and software critical than ever. policy-initiatives/automated-vehicles/320711/ technologies. A new generation of 90 This effort to initiate reform in the vehicle preparing-future-transportation-automated-vehicle- performance requirements and test safety program is at least comparable in scope to the 30.pdf. effort launched by the Agency in 2003 when it 92 For an example of requirements that might be procedures for ADS could be drafted issued an ANPRM to reform the Automobile Fuel expressed as mathematical functions, see the with a greater eye to enabling Economy Standards Program, 68 FR 74908 (Dec. 29, discussion of Mobileye’s RSS in section IV.C of this continuing technological innovation to 2003). document.

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that such a course would be objective systems,’’ establishes performance drafting. Generally, NHTSA establishes and practicable. While a standard requirements for braking systems standards meeting the need for safety in obstacle course test may provide a functioning normally, and separate applicable circumstances. When one baseline of performance, analogous to requirements for when brake power ADS can operate only in a discrete set current FMVSS that perform a subset of assist units are inoperative or depleted of conditions that varies almost entirely specific crash tests, it cannot expose a of reserve capability. Applying this from the discrete set of conditions in vehicle to the entire spectrum of field approach to the myriad unique which another ADS is capable of crash scenarios. combinations of technologies that may operating, establishing objective b. FMVSS Requiring Vehicles To Be be developed to perform the four critical standards meeting the need for motor Programmed To Drive Defensively in a functions of an ADS could prove quite vehicle safety for all ADS becomes that Risk-Minimizing Manner in Any challenging. For instance, the sensing much more challenging. Application of Scenario Within Their ODD function of an ADS may be performed one specific or one series of prescriptive by one or a combination of technologies tests may not be feasible or practical for An FMVSS might also require that the such as LiDAR, radar, cameras, GPS, that wide an array of technology and planning and control functions of an and V2X radios/antennae units. If the operating limitations. Compounding ADS be programmed to adhere to a available technologies that might be this difficulty is the fact that a given defensive driving model so as to used for sensing fail in distinctly ADS is likely to be updated over time— minimize the likelihood of getting into different ways, the approach the Agency and ODD limitations that apply to a a crash-imminent situation under any took in regulating light duty braking vehicle’s ADS at the time of certification scenario within its ODD—similar to the might mean that any sensing standard could be entirely different from the driving policies and metrics described must include different requirements for same vehicle’s upgraded ODD in Mobileye’s RSS, NVIDIA’s Safety different technologies.94 The degree of limitations years later. Force Field, and NHTSA’s MPrISM specificity required for such an D. Timing and Phasing of FMVSS described previously. This could be approach would necessitate successive Development and Implementation accompanied by an additional rulemaking proceedings to amend or requirement that the vehicle be capable remove regulatory provisions as they are As described above, issuing of automated operation within its ODD obsoleted by technological change. performance standards for ADS only. The FMVSS could be To avoid this problem, any FMVSS competency has been and remains complemented by a requirement that that might be developed for ADS could premature because of the lack of each vehicle manufacturer state in the be drafted in a manner that minimizes technological maturity and the owner’s manual for each of its vehicles the chances of creating new barriers to development work necessary to support equipped with ADS that it would be innovation. As the Department stated in developing performance standards. unsafe for the vehicle to operate in ‘‘AV 3.0’’: Since widespread deployment of ADS automated mode outside its ODD and vehicles appears to be years away, that the vehicle has therefore been Future motor vehicle safety standards will NHTSA has the opportunity to decide designed so that it cannot do so. Such need to be more flexible and responsive, technology-neutral, and performance- carefully and strategically which aspects a statement could also include a oriented to accommodate rapid technological of ADS safety performance may require description of what behavior the vehicle innovation. They may incorporate simpler the most attention. By taking this owner could expect in the circumstance and more general requirements designed to that an ADS exceeds the limits of its deliberate approach, the Agency can validate that an ADS can safely navigate the perform the research and validation ODD, such as the vehicle will pull over real-world roadway environment, including in a safe location.93 unpredictable hazards, obstacles, and necessary to ensure that any standards While programming an ADS to adhere interactions with other vehicles and developed to regulate those aspects of to defensive driving models may help pedestrians who may not always adhere to performance achieve their purpose lower the risk of crash, there are the traffic laws or follow expected patterns of without limiting the ability of additional ADS performance aspects behavior. Existing standards assume that a manufacturers to develop and introduce vehicle may be driven anywhere, but future that NHTSA would need to consider. further safety improvements and standards will need to take into account that capabilities unnecessarily. Adherence to a defensive driving model the operational design domain (ODD) for a would be one potential requirement that particular ADS within a vehicle is likely to Also important to this discussion of could mitigate some, but not all, safety be limited in some ways that may be unique timing are the many challenges and risks. Much would also depend on the to that system.95 aspects that NHTSA must overcome to implement some of the mechanisms implementation of that defensive The likelihood of different ADS described in this document. First, it has driving model, and the efficacy of that having entirely different sensors, been NHTSA’s practice to purchase implementation. systems, and even ODDs that are limited vehicles independently to assess in entirely different ways introduces c. FMVSS Drafted in a Highly baseline and/or countermeasure additional challenges to NHTSA’s Performance-Oriented Manner performance when developing an traditional approach to standard The traditional approach to standard FMVSS. Given the lack of ADS- drafting is one where NHTSA specifies 94 It should be noted that if an FMVSS were to equipped vehicles available for testing the desired performance in great detail, include such requirements, the amount of time or any other purposes, the Agency and may also include requirements to needed to develop and adopt the standard would would have difficulty verifying that a lessen the likelihood and mitigate the likely be greater. Likewise, the need for periodic new standard would achieve its consequences of failure. For instance, rulemakings to keep the standard up-to-date and avoid potentially adverse effects on the ability to intended purpose without systems and 96 FMVSS No. 135 ‘‘Light vehicle brake introduce new hardware and software would also vehicles to test. In recognition of and likely be greater. 93 Importantly, even without standards in place to 95 Page 7. Available at https:// 96 NHTSA notes that the issue of unavailability regulate these aspects, NHTSA may consider the www.transportation.gov/sites/dot.gov/files/docs/ for NHTSA testing could arise in other ability of an ODD-constrained vehicle to operate policy-initiatives/automated-vehicles/320711/ circumstances with traditional vehicles that may outside of its ODD as strong evidence of a safety- preparing-future-transportation-automated-vehicle- not be sold to the public. NHTSA independently related defect. 30.pdf. and anonymously purchases vehicles for testing

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in response to the difficulty, the Agency should be criteria for assessing important in choosing mechanisms and would be required to explore alternative objectively whether the methods of each in deciding which of the core elements avenues to validate the appropriateness manufacturer should meet a common of ADS safety performance the Agency of a proposed test procedure. standardized level of rigor, including should prioritize in exercising its safety Next, NHTSA expects a phased documentation, and a common oversight responsibilities. approach to regulation of those aspects standardized minimum level of safety. of safety performance that may • Technology Neutrality/ V. Questions and Requests necessitate regulation, given limited Performance-Based—The Agency wants A. Questions About a Safety Framework agency resources and the constantly to ensure that any mechanism it uses • Question 1. Describe your evolving technology and business does not pick winners and losers among conception of a Federal safety models involved in ADS development. available and anticipated technologies. framework for ADS that encompasses NHTSA would need to phase its By being highly performance or responses in several ways. To avoid outcome oriented, the mechanisms will the process and engineering measures implementing ineffective or allow for innovation and minimize the described in this document and explain counterproductive measures, the necessity of having to be amended to your rationale for its design. • Question 2. In consideration of Agency would need to set priorities and permit the introduction of new optimum use of NHTSA’s resources, on allocate its resources accordingly. technologies. Any new standards and which aspects of a manufacturer’s NHTSA has already begun the process regulations should be drafted, to the comprehensive demonstration of the of providing oversight and guidance extent possible, in performance-oriented safety of its ADS should the Agency (including encouraging disclosure and terms to give manufacturers broad place a priority and focus its monitoring highlighting key safety aspects the choices among available technologies and safety oversight efforts and why? Agency finds relevant for all ADS and flexibility to develop and introduce • Question 3. How would your developers), as described in previous new technologies without the need first conception of such a framework ensure sections. Further, where appropriate, to seek amendments to those standards that manufacturers assess and assure the Agency has granted, and will or exemptions. each core element of safety effectively? continue to consider granting, • Predictability—In developing • Question 4. How would your exemptions from FMVSS to allow for vehicles and ADS, manufacturers framework assist NHTSA in engaging limited deployment or research of in a should be able to anticipate what types with ADS development in a manner that manner that mitigates safety risk and of performance outcomes they will need helps address safety, but without advances agency technical knowledge. to make to demonstrate the safety of unnecessarily hampering innovation? However, the question remains as to their products so that they can design • Question 5. How could the Agency what the Agency should prioritize next their products accordingly. • best assess whether each manufacturer in its goals of advancing the safety of Transparency—To build public had adequately demonstrated the extent ADS. Certain mechanisms would permit confidence and acceptance, the methods of its ADS’ ability to meet each more expedited implementation, while used by manufacturers to demonstrate prioritized element of safety? others would require much research. the safety of their products should be • Question 6. Do you agree or Most of the mechanisms would face made known and explained to the disagree with the core elements (i.e., some of the practical hurdles related to public. • ‘‘sensing,’’ ‘‘perception,’’ ‘‘planning’’ the unavailability of ADS to test. Efficiency—Given that there is and ‘‘control’’) described in this NHTSA seeks comment on what next neither enough time nor resources for document? Please explain why. steps the Agency should take in the the Agency to develop physical test • Question 7. Can you suggest any regulation of ADS, the timing of those procedures for all conceivable driving other core element(s) that NHTSA steps, and whether any of the scenarios, an effort should be made to should consider in developing a safety abovementioned steps are required for determine which physical tests have the framework for ADS? Please provide the the development of an ADS-specific greatest likelihood to minimize safety basis of your suggestion. FMVSS regime that achieves risk in an effective manner. • • Question 8. At this early point in appropriate standards for highway Equity—All manufacturers should the development of ADS, how should safety while preserving incentives for be treated fairly and equally in the NHTSA determine whether regulation is innovation and accommodating Agency’s assessing of the sufficiency of actually needed versus theoretically improvements in technology. their safety showings. To that end, the mechanism(s) chosen by the Agency desirable? Can it be done effectively at E. Critical Factors Considered in should provide some means to validate this early stage and would it yield a Designing, Assessing, and Selecting that each manufacturer’s demonstration safety outcome outweighing the Administrative Mechanisms of safety meets or exceeds a common associated risk of delaying or distorting To aid commenters in providing level of rigor and comprehensiveness paths of technological development in useful information to the Agency on the and that each vehicle meets or exceeds ways that might result in forgone safety array of administrative mechanisms a common minimum level of safety. benefits and/or increased costs? • • described above, NHTSA has set forth Consistent with Market-Based Question 9. If NHTSA were to below a variety of critical factors that Innovation—To ensure that innovation develop standards before an ADS- the Agency will weigh in exploring the is recognized and valued, governmental equipped vehicle or an ADS that the strengths and weaknesses of those actions should be consistent with Agency could test is widely available, mechanisms. market-based innovation, and ensure how could NHTSA validate the • Consistent and Reliable Assurance the Agency’s actions facilitate and do appropriateness of its standards? How of Safety—To the extent that the not unnecessarily inhibit innovation to would such a standard impact future mechanisms provide flexibility in how the extent possible. ADS development and design? How • manufacturers demonstrate safety, there Resource Requirements—Return would such standards be consistent (measured in added safety) on with NHTSA’s legal obligations? • and cannot do so if those vehicles are not being sold investment (e.g., efficient use of Question 10. Which safety to the public. available resources) is especially standards would be considered the most

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effective as improving safety and mid or long term but might be a logical your comments, including the consumer confidence and should next step to those mechanisms that attachments, to the docket following the therefore be given priority over other could be implemented in the near term, instructions given above under possible standards? What about other and why? ADDRESSES. Please note, if you are administrative mechanisms available to • Question 19. What additional submitting comments electronically as a NHTSA? mechanisms should be considered, and PDF (Adobe) file, we ask that the • Question 11. What rule-based and why? documents submitted be scanned using statistical methodologies are best suited • Question 20. What are the pros and an Optical Character Recognition (OCR) for assessing the extent to which an cons of incorporating the elements of process, thus allowing NHTSA to search ADS meets the core functions of ADS the framework in new FMVSS or and copy certain portions of your safety performance? Please explain the alternative compliance pathways? submissions. basis for your answers. Rule-based • Question 21. Should NHTSA How do I submit confidential business assessment involves the definition of a consider an alternative regulatory path, information? comprehensive set of rules that define with a parallel path for compliance precisely what it means to function verification testing, that could allow for If you wish to submit any information safely, and which vehicles can be flexible demonstrations of competence under a claim of confidentiality, you empirically tested against. Statistical with respect to the core functions of must submit three copies of your approaches track the performance of ADS safety performance? If so, what are complete submission, including the vehicles over millions of miles of real- the pros and cons of such alternative information you claim to be confidential world operation and calculate their regulatory path? What are the pros and business information, to the Office of probability of safe operation as an cons of an alternative pathway that the Chief Counsel, NHTSA, at the extrapolation of their observed would allow a vehicle to comply with address given above under FOR FURTHER frequency of safety violations. If there either applicable FMVSS or with novel INFORMATION CONTACT. are other types of methodologies that demonstrations, or a combination of In addition, you may submit a copy would be suitable, please identify and both, as is appropriate for the vehicle (two copies if submitting by mail or discuss them. Please explain the basis design and its intended operation? hand delivery) from which you have for your answers. Under what authority could such an deleted the claimed confidential • Question 12. What types and quanta approach be developed? business information, to the docket by of evidence would be necessary for one of the methods given above under reliable demonstrations of the level of D. Questions About Statutory Authority ADDRESSES. When you send a comment performance achieved for the core • Question 22. Discuss how each containing information claimed to be elements of ADS safety performance? element of the framework would confidential business information, you • Question 13. What types and interact with NHTSA’s rulemaking, should include a cover letter setting amount of argumentation would be enforcement, and other authority under forth the information specified in necessary for reliable and persuasive the Vehicle Safety Act. NHTSA’s confidential business demonstrations of the level of • Question 23. Discuss how each information regulation (49 CFR part performance achieved for the core element of the framework would 512). functions of ADS safety performance? interact with Department of Will NHTSA consider late comments? B. Question About NHTSA Research Transportation Rules concerning rulemaking, enforcement, and guidance. NHTSA will consider all comments • Question 14. What additional • Question 25. If you believe that any received before the close of business on research would best support the of the administrative mechanisms the comment closing date indicated creation of a safety framework? In what described in this document falls outside above under DATES. To the extent sequence should the additional research the Agency’s existing rulemaking or possible, NHTSA will also consider be conducted and why? What tools are enforcement authority under the comments received after that date. necessary to perform such research? Vehicle Safety Act or Department of How can I read the comments submitted C. Questions About Administrative Transportation regulations, please by other people? Mechanisms explain the reasons for that belief. • You may read the comments received • Question 24. If your comment Question 15. Discuss the supports the Agency taking actions that at the address given above under administrative mechanisms described in you believe may fall outside its existing ADDRESSES. The hours of the docket are this document in terms of how well they rulemaking or enforcement authority, indicated above in the same location. meet the selection criteria in this please explain your reasons for that You may also read the comments on the document. belief and describe what additional internet, identified by the docket • Question 16. Of the administrative authority might be needed. number at the heading of this document, mechanisms described in this at http://www.regulations.gov. document, which single mechanism or VI. Preparation and Submission of Please note that, even after the combination of mechanisms would best Written Comments comment closing date, NHTSA will enable the Agency to carry out its safety continue to file relevant information in How do I prepare and submit mission, and why? If you believe that the docket as it becomes available. comments? any of the mechanisms described in this Further, some people may submit late document should not be considered, Your comments must be written and comments. Accordingly, NHTSA please explain why. in English. To ensure that your recommends that you periodically • Question 17. Which mechanisms comments are filed in the correct check the docket for new material. could be implemented in the near term docket, please include the docket or are the easiest and quickest to number of this document in your VII. Regulatory Notices implement, and why? comments. This action has been determined to be • Question 18. Which mechanisms Please submit one copy (two copies if significant under Executive Order might not be implementable until the submitting by mail or hand delivery) of 12866, as amended by Executive Order

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13563, and DOT’s Regulatory Policies SUPPLEMENTARY INFORMATION: By notice to a two-week extension of the comment and Procedures. It has been reviewed by served on September 30, 2020, the and reply deadlines. On November 16, the Office of Management and Budget Board requested public comment on an 2020, the Portland Cement Association under that Order. Executive Orders approach developed by the Office of (PCA) replied likewise objecting to the 12866 (Regulatory Planning and Economics (OE) for possible use in requested technical conference but Review) and 13563 (Improving considering class exemption and agreeing to a two-week extension of the Regulation and Regulatory Review) revocation issues to help the Board comment and reply deadlines. require agencies to regulate in the ‘‘most evaluate market conditions by taking A technical conference may help to cost-effective manner,’’ to make a into account a variety of metrics related facilitate a better understanding among ‘‘reasoned determination that the to or indicative of rail transportation the interested parties of how the benefits of the intended regulation competition. Review of Commodity, proposal is intended to work. Therefore, justify its costs,’’ and to develop Boxcar, & TOFC/COFC Exemptions, EP the Board will hold a technical regulations that ‘‘impose the least 704 (Sub-No. 1), slip op. at 1, 6 (STB conference concerning the approach burden on society.’’ In addition, served Sept. 30, 2020).1 The Board described in the September 30 decision. Executive Orders 12866 and 13563 directed that initial comments on the The technical conference will take place require agencies to provide a proposed approach be submitted on or on December 18, 2020, at 10:00 a.m. The meaningful opportunity for public before December 4, 2020, and that purpose of the technical conference is participation. Accordingly, we have replies to initial comments be submitted for Board staff to provide a presentation asked commenters to answer a variety of on or before January 4, 2021. on the approach and to answer technical questions to elicit practical information On November 3, 2020, the Association questions about the mechanics of the about alternative approaches and of American Railroads (AAR) filed a approach. The Board will soon issue a relevant technical data. These request for the Board to schedule a separate decision announcing details on comments will help the Department ‘‘staff-supervised technical conference’’ participation. evaluate whether a proposed in early December 2020 to discuss the In light of the technical conference, rulemaking is needed and appropriate. proposed approach. On November 12, the Board will provide additional time This action is not subject to the 2020, the American Short Line and for interested parties to file comments requirements of E.O. 13771 (82 FR 9339, Regional Railroad Association and subsequent replies. Comments will February 3, 2017) because it is an (ASLRRA) filed in support of AAR’s be due January 22, 2021, and replies advance notice of proposed rulemaking. proposal for a technical conference. will be due February 22, 2021. Authority: 49 U.S.C. 30101 et seq., 49 Also on November 3, 2020, AAR It is ordered: U.S.C. 30182. separately filed a request for the Board 1. AAR’s request for a technical to extend the deadlines for submitting conference is granted. The technical Issued in Washington, DC, under authority written comments and replies. AAR delegated in 49 CFR 1.95 and 501.5. conference will be held on December asks that the Board extend both 18, 2020, at 10:00 a.m., as discussed James C. Owens, deadlines by 60 days, or, if a technical above. Deputy Administrator. conference is held, set the deadlines for 2. Comments are due by January 22, [FR Doc. 2020–25930 Filed 12–2–20; 8:45 am] 60 and 90 days after the date of the 2021, and replies are due by February BILLING CODE 4910–59–P technical conference. According to 22, 2021. AAR, given the technical nature of the 3. Notice of this decision will be proposed approach, the voluminous published in the Federal Register. SURFACE TRANSPORTATION BOARD workpapers, the need for data-intensive 4. This decision is effective on its analysis, and the importance of the 49 CFR Part 1039 service date. issues raised, the current comment Decided: November 24, 2020. deadline of December 4, 2020, does not [Docket No. EP 704 (Sub-No. 1)] By the Board, Allison C. Davis, Director, allow stakeholders sufficient time to Office of Proceedings. analyze the proposed approach and Review of Commodity, Boxcar, and Jeffrey Herzig, TOFC/COFC Exemptions underlying data and prepare responsive comments. On November 12, 2020, Clearance Clerk. AGENCY: Surface Transportation Board. ASLRRA also filed a request that the [FR Doc. 2020–26420 Filed 12–2–20; 8:45 am] ACTION: Announcement of technical Board extend the deadlines, asking for BILLING CODE 4915–01–P conference. the same adjustment to the deadlines. On November 13, 2020, the American SUMMARY: Granted a request for a Forest & Paper Association (AF&PA), SURFACE TRANSPORTATION BOARD technical conference. the Institute of Scrap Recycling 49 CFR Part 1108 DATES: A technical conference will be Industries, Inc. (ISRI), and the National held on December 18, 2020, at 10:00 Industrial Transportation League (NITL) [Docket No. EP 765] a.m. Comments are due by January 22, filed a joint reply. They object to AAR’s 2021, and replies are due by February request for a technical conference, Joint Petition for Rulemaking To 22, 2021. arguing that it would add further delay Establish a Voluntary Arbitration ADDRESSES: Comments and replies may to this rulemaking proceeding, but agree Program for Small Rate Disputes be filed with the Board via e-filing on AGENCY: Surface Transportation Board. the Board’s website at www.stb.gov and 1 The Board stated that it would make the workpapers underlying the appendices to its ACTION: Petition for rulemaking. will be posted to the Board’s website. decision available to interested parties under an FOR FURTHER INFORMATION CONTACT: appropriate confidentiality agreement pursuant to SUMMARY: The Board institutes a Amy Ziehm at (202) 245–0391. 49 CFR 1244.9. Recently, OE discovered that the rulemaking proceeding to consider a workpapers include duplicative queries associated Assistance for the hearing impaired is with six input files. The parties in receipt of the proposal to establish a new, voluntary available through the Federal Relay workpapers have been notified and provided with arbitration program intended to help Service at (800) 877–8339. clarifying instructions. resolve small rate disputes.

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DATES: Published in the Federal NGFA express support for commencing 2. Notice of this decision will be Register on December 3, 2020, the Board a rulemaking proceeding, they advocate published in the Federal Register. will provide an opportunity for for certain changes to the program 3. This decision is effective on its additional public participation in a requested by the Petitioners. (USDA service date. subsequent decision. Reply 1; NGFA Reply 1–2.) By decision Decided: November 24, 2020. ADDRESSES: Comments and replies may issued on August 26, 2020, the Director By the Board, Board Members Begeman, be filed with the Board via e-filing on of the Office of Proceedings directed Fuchs, and Oberman. the Board’s website at www.stb.gov and Petitioners to submit a supplemental Tammy Lowery, pleading responding to the replies and will be posted to the Board’s website. Clearance Clerk. FOR FURTHER INFORMATION CONTACT: allowed other interested persons to [FR Doc. 2020–26506 Filed 12–2–20; 8:45 am] Amy Ziehm at (202) 245–0391. respond as well. BILLING CODE 4915–01–P Assistance for the hearing impaired is On September 10, 2020, Petitioners available through the Federal Relay submitted a supplemental filing, as did Service at (800) 877–8339. AFPM, U.S. Wheat, and the Joint Shippers. Petitioners state that they are DEPARTMENT OF COMMERCE SUPPLEMENTARY INFORMATION: On July agreeable to some modifications to their 31, 2020, five railroad parties— proposed program, but not to the National Oceanic and Atmospheric Canadian National Railway Company modifications suggested by other Administration (CN); CSX Transportation, Inc. (CSXT); interested parties on confidentiality, The Kansas City Southern Railway exemption from FORR, and a 50 CFR Part 679 Company (KCS); Norfolk Southern prohibition on revenue adequacy Corporation; and Union Pacific Railroad [Docket No. 201125–0318; RTID 0648– considerations. The shipper groups Company (UP) (collectively, XY115] renewed their objections to Petitioners’ Petitioners) 1—filed a petition for proposed program. Fisheries of the Exclusive Economic rulemaking to create a new, voluntary The Board favors the resolution of Zone Off Alaska; Gulf of Alaska; small rate case arbitration program, to disputes through alternative dispute Proposed 2021 and 2022 Harvest be codified at 49 CFR part 1108a, which resolution whenever possible, see 49 Specifications for Groundfish would function alongside the Board’s CFR 1109.1, and has also been actively existing arbitration program at 49 CFR AGENCY working to expand access to rate relief, : National Marine Fisheries part 1108. Petitioners pledge to particularly for smaller disputes. The Service (NMFS), National Oceanic and participate in their proposed arbitration Rate Reform Task Force (RRTF), which Atmospheric Administration (NOAA), program for a period of five years, the Board established in 2018 to Commerce. provided the Board adopts the program develop recommendations for rate ACTION: Proposed rule; harvest according to the terms set forth in the reform, recommended legislation that specifications and request for petition, including (among other things) would permit mandatory arbitration of comments. a right to withdraw from the program if small disputes, in addition to a Board- the Board adopts the Final Offer Rate SUMMARY: NMFS proposes 2021 and administered final offer decision- Review (FORR) process 2 without 2022 harvest specifications, making process,4 the latter of which the exempting carriers that participate in apportionments, and Pacific halibut Board has proposed in Docket No. EP the program from the FORR process. prohibited species catch limits for the 755. (RRTF Report 14–20.) In order for (Pet. 2, 17.) groundfish fishery of the Gulf of Alaska the Board to give further consideration Replies to the petition were filed on (GOA). This action is necessary to to providing a new arbitration program August 20, 2020, by the National Grain establish harvest limits for groundfish under which parties would voluntarily and Feed Association (NGFA); Olin during the 2021 and 2022 fishing years participate to resolve rate disputes, the Corporation (Olin); the American Fuel & Board concludes that it is appropriate to and to accomplish the goals and Petrochemical Manufacturers (AFPM); institute a rulemaking proceeding to objectives of the Fishery Management and (filing jointly) the American 5 Plan for Groundfish of the Gulf of Chemistry Council, Corn Refiners consider Petitioners’ proposal. The Board will provide an opportunity for Alaska. The 2021 harvest specifications Association, Institute of Scrap Recycling supersede those previously set in the Industries, National Industrial additional public participation in a subsequent decision. final 2020 and 2021 harvest Transportation League, The Chlorine specifications, and the 2022 harvest Institute, and The Fertilizer Institute List of Subjects in 49 CFR 1108 specifications will be superseded in (Joint Shippers). The U.S. Department of Administrative practice and early 2022 when the final 2022 and Agriculture (USDA) also filed a reply. procedure, Railroads. 2023 harvest specifications are Olin, AFPM, and the Joint Shippers It is ordered: published. The intended effect of this generally object to the Petitioners’ 1. Petitioners’ request to initiate a action is to conserve and manage the requested program.3 While USDA and rulemaking proceeding is granted, as groundfish resources in the GOA in discussed above. accordance with the Magnuson-Stevens 1 The petition lists one of the petitioners only as Fishery Conservation and Management ‘‘CN.’’ In their supplemental filing, Petitioners identify this party as the ‘‘U.S. operating Group (U.S. Wheat) also expressed ‘‘several Act (Magnuson-Stevens Act). subsidiaries of CN.’’ Although not identified in concerns’’ regarding the Petitioners’ requested DATES: Comments must be received by either filing, the Board understands ‘‘CN’’ to mean program. See U.S. Wheat Comment 6, Aug. 12, January 4, 2021. Canadian National Railway Company. Another 2020, Final Offer Rate Review, EP 755. petitioner is listed as Norfolk Southern Corp., but 4 The RRTF issued its report on April 25, 2019. ADDRESSES: Submit comments on this in the supplemental filing, the party is identified as The RRTF Report is available on the Board’s document, identified by NOAA–NMFS– Norfolk Southern Railway Company (NSR), the website at https://prod.stb.gov/wp-content/uploads/ 2020–0140, by either of the following operating affiliate of Norfolk Southern Corp. Rate-Reform-Task-Force-Report-April-2019.pdf. methods: 2 The Board proposed FORR in Final Offer Rate 5 The Board also notes the Petitioners’ proposed • Review, EP 755 (STB served Sept. 12, 2019). interrelationship between their proposed arbitration Federal e-Rulemaking Portal: Go to 3 In a comment filed in Docket No. EP 755, the program and the Board’s proposal in Docket No. EP www.regulations.gov/ U.S. Wheat Associates Transportation Working 755. #!docketDetail;D=NOAA-NMFS-2020-

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0140, click the ‘‘Comment Now!’’ icon, within the optimum yield (OY) range of which is a category of non-target species complete the required fields, and enter 116,000 to 800,000 metric tons (mt) that are not in need of conservation and or attach your comments. (§ 679.20(a)(1)(i)(B)). Section management. Accordingly, NMFS will • Mail: Submit written comments to 679.20(c)(1) further requires NMFS to no longer set an Overfishing Level Glenn Merrill, Assistant Regional publish and solicit public comment on (OFL), acceptable biological catch Administrator, Sustainable Fisheries proposed annual TACs and (ABC), and TAC for sculpins in the GOA Division, Alaska Region NMFS, Attn: apportionments thereof, Pacific halibut groundfish harvest specifications, Records Office. Mail comments to P.O. prohibited species catch (PSC) limits, beginning with these proposed 2021 and Box 21668, Juneau, AK 99802–1668. and seasonal allowances of pollock and 2022 harvest specifications. Instructions: NMFS may not consider Pacific cod. The proposed harvest Amendment 110 prohibits directed comments if they are sent by any other specifications in Tables 1 through 19 of fishing for sculpins, while maintaining method, to any other address or this rule satisfy these requirements. For recordkeeping and reporting individual, or received after the 2021 and 2022, the sum of the proposed requirements for sculpins. Amendment comment period ends. All comments TAC amounts is 402,783 mt. 110 also establishes a maximum received are a part of the public record, Under § 679.20(c)(3), NMFS will retainable amount for sculpins when and NMFS will post the comments for publish the final 2021 and 2022 harvest directed fishing for groundfish species public viewing on www.regulations.gov specifications after (1) considering at 20 percent to discourage targeting without change. All personal identifying comments received within the comment sculpin species. information (e.g., name, address), period (see DATES), (2) consulting with Potential Revisions to the Sablefish confidential business information, or the Council at its December 2020 Apportionment Process otherwise sensitive information meeting, (3) considering information submitted voluntarily by the sender is presented in the 2021 SIR to the Final The Alaska-wide sablefish ABC is publicly accessible. NMFS will accept EIS that assesses the need to prepare a apportioned between six areas within anonymous comments (enter ‘‘N/A’’ in Supplemental EIS (see ADDRESSES), and the GOA and BSAI (the Bering Sea, the required fields if you wish to remain (4) considering information presented in Aleutian Islands, Western Gulf, Central anonymous). the final 2020 SAFE reports prepared for Gulf, West Yakutat, and East Yakutat/ Electronic copies of the Alaska the 2021 and 2022 groundfish fisheries. Southeast Areas). Since 2013, a fixed Groundfish Harvest Specifications Final apportionment methodology has been Environmental Impact Statement (Final Other Actions Affecting or Potentially used to apportion the ABC between EIS), Record of Decision (ROD) for the Affecting the 2021 and 2022 Harvest those six years. However, a new Final EIS, and the annual Specifications apportionment methodology is being Supplementary Information Reports Amendment 109 to the FMP: Revisions considered that could affect the apportionment of sablefish ABC, as well (SIRs) to the Final EIS prepared for this to the GOA Pollock Seasons and Pacific as TACs and gear allocations between action are available from https:// Cod Seasonal Allocations www.regulations.gov. An updated 2021 the trawl and fixed gear sectors, On June 25, 2020, NMFS published a specified in future GOA groundfish SIR for the final 2021 and 2022 harvest final rule to implement Amendment 109 specifications will be available from the harvest specifications. The Joint BSAI to the FMP (85 FR 38093), effective and GOA Groundfish Plan Team, same source. The final 2019 Stock January 1, 2021. The final rule revised Assessment and Fishery Evaluation Scientific and Statistical Committee the pollock seasons and allocations in (SSC), and Council will review and (SAFE) report for the groundfish the GOA, along with Pacific cod season propose any changes to the sablefish resources of the GOA, dated November allocations. Amendment 109 modified ABC apportionment methodology and 2019, is available from the North Pacific the existing annual pollock TAC could recommend changes for the final Fishery Management Council (Council) allocation to two equal seasonal 2021 and 2022 groundfish harvest at 1007 West Third, Suite 400, allocations (50 percent of TAC), rather specifications. Anchorage, AK 99501–2252, phone than four equal seasonal allocations (25 Proposed ABC and TAC Specifications 907–271–2809, or from the Council’s percent of TAC). The pollock A and B website at https://www.npfmc.org. The seasons were combined into a January In October 2020, the Council’s SSC, 2020 SAFE report for the GOA will be 20 through May 31 A season, and the its Advisory Panel (AP), and the Council available from the same source. pollock C and D seasons were combined reviewed the most recent biological and FOR FURTHER INFORMATION CONTACT: into a September 1 through November 1 harvest information about the condition Obren Davis, 907–586–7228. B season. Additionally, Amendment 109 of the GOA groundfish stocks. The SUPPLEMENTARY INFORMATION: NMFS revised the Pacific cod TAC seasonal Council’s GOA Groundfish Plan Team manages the GOA groundfish fisheries apportionments to the trawl catcher (Plan Team) compiled and presented in the exclusive economic zone (EEZ) of vessel (CV) sector by increasing the A this information in the final 2019 SAFE the GOA under the Fishery Management season allocation and decreasing the B report for the GOA groundfish fisheries, Plan for Groundfish of the Gulf of season allocation. The revisions dated November 2019 (see ADDRESSES). Alaska (FMP). The Council prepared the implemented by Amendment 109 are The SAFE report contains a review of FMP under the authority of the incorporated into these proposed 2021 the latest scientific analyses and Magnuson-Stevens Act, 16 U.S.C. 1801, and 2022 harvest specifications. estimates of each species’ biomass and et seq. Regulations governing U.S. other biological parameters, as well as fisheries and implementing the FMP Amendment 110 to the FMP: Reclassify summaries of the available information appear at 50 CFR parts 600, 679, and Sculpins as an Ecosystem Component on the GOA ecosystem and the 680. Species economic condition of the groundfish The FMP and its implementing On July 10, 2020, NMFS published fisheries off Alaska. From these data and regulations require that NMFS, after the final rule to implement Amendment analyses, the Plan Team recommends, consultation with the Council, specify 110 to the FMP (85 FR 41427). The final and the SSC sets, an OFL and ABC for the total allowable catch (TAC) for each rule reclassified sculpins in the FMP as each species or species group. The target species, the sum of which must be an ‘‘Ecosystem Component’’ species, amounts proposed for the 2021 and

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2022 OFLs and ABCs are based on the Potential Changes Between Proposed 2021 and 2022 TACs are based on the 2019 SAFE report. The AP and Council and Final Specifications best available biological and recommended that the proposed 2021 In previous years, the most significant socioeconomic information. The and 2022 TACs be set equal to proposed changes (relative to the amount of Council adopted the SSC’s OFL and ABCs for all species and species groups, assessed tonnage of fish) to the OFLs ABC recommendations and the AP’s with the exception of the species and and ABCs from the proposed to the final TAC recommendations. species groups further discussed below. harvest specifications have been based Specification and Apportionment of The proposed OFLs, ABCs, and TACs on the most recent NMFS stock surveys. TAC Amounts could be changed in the final harvest These surveys provide updated specifications depending on the most The Council recommended proposed estimates of stock biomass and spatial 2021 and 2022 TACs that are equal to recent scientific information contained distribution, and inform changes to the in the final 2020 SAFE report. The stock proposed ABCs for all species and models used for producing stock species groups, with the exception of assessments that will comprise, in part, assessments. At the September 2020 the 2020 SAFE report are available at pollock in the combined Western and Plan Team meeting, NMFS scientists Central Regulatory Areas and the West https://www.fisheries.noaa.gov/alaska/ presented updated and new survey population-assessments/north-pacific- Yakutat (WYK) District of the Eastern results. Scientists also discussed Regulatory Area (the W/C/WYK groundfish-stock-assessment-and- potential changes to assessment models, fishery-evaluation. The final 2020 SAFE Regulatory Area), Pacific cod, shallow- and accompanying preliminary stock water flatfish in the Western Regulatory report will be available from the same estimates. At the October 2020 Council source. Area, arrowtooth flounder, flathead sole meeting, the SSC reviewed this in the Western and Central Regulatory In November 2020, the Plan Team information. The species with potential Areas, and Atka mackerel. The W/C/ will update the 2019 SAFE report to for a significant model change is Pacific WYK Regulatory Area pollock TAC and include new information collected ocean perch. Model changes can result the GOA Pacific cod TACs are set to during 2020, such as NMFS stock in changes to final OFLs, ABCs, and account for the State of Alaska’s (State’s) surveys, revised stock assessments, and TACs. guideline harvest levels (GHLs) for the catch data. The Plan Team will compile In November 2020, the Plan Team State water pollock and Pacific cod this information and present the draft will consider updated survey results fisheries so that the ABCs are not 2020 SAFE report at the December 2020 and updated stock assessments for exceeded. Additionally, the proposed Council meeting. At that meeting, the groundfish, which will be included in GOA Pacific cod TACs include a further SSC and the Council will review the the draft 2020 SAFE report. If the 2020 reduction, which the Council 2020 SAFE report, and the Council will SAFE report indicates that the stock recommended and NMFS implemented approve the 2020 SAFE report. The biomass trend is increasing for a in the 2020 and 2021 harvest Council will consider information in the species, then the final 2021 and 2022 specifications, as an additional 2020 SAFE report, recommendations harvest specifications for that species conservation measure due to the stock’s from the November 2020 Plan Team may reflect an increase from the projected 2020 spawning biomass meeting and December 2020 SSC and proposed harvest specifications. (discussed further below). The shallow- AP meetings, public testimony, and Conversely, if the 2020 SAFE report water flatfish, arrowtooth flounder, and relevant written public comments in indicates that the stock biomass trend is flathead sole TACs are set to allow for making its recommendations for the decreasing for a species, then the final increased harvest opportunities for final 2021 and 2022 harvest 2021 and 2022 harvest specifications these target species while conserving specifications. Pursuant to § 679.20(a)(2) may reflect a decrease from the the halibut PSC limit for use in other and (3), the Council could recommend proposed harvest specifications. fisheries. The Atka mackerel TAC is set adjusting the TACs if warranted based The proposed 2021 and 2022 OFLs to accommodate incidental catch on the biological condition of and ABCs are based on the best amounts in other fisheries. These groundfish stocks or a variety of available biological and scientific reductions are described below. socioeconomic considerations, or if information, including projected NMFS’s proposed apportionments of required to cause the sum of TACs to biomass trends, information on assumed groundfish species are based on the fall within the OY range. distribution of stock biomass, and distribution of biomass among the Many of the scheduled 2020 GOA and revised technical methods used to regulatory areas over which NMFS Bering Sea groundfish and ecosystem calculate stock biomass. The FMP manages the species. Additional surveys were cancelled or modified; specifies the tiers to be used to compute regulations govern the apportionment of some were conducted as planned. The OFLs and ABCs. The tiers applicable to pollock, Pacific cod, and sablefish. Alaska Fisheries Science Center (AFSC) a particular stock or stock complex are Additional detail on apportionments of implemented a variety of mitigation determined by the level of reliable pollock, Pacific cod, and sablefish are efforts to partially address the loss of information available to the fisheries described below. data from cancelled surveys in 2020. scientists. This information is The ABC for the pollock stock in the Currently, for 2021 the AFSC plans to categorized into a successive series of W/C/WYK Regulatory Area accounts for resume the normal schedule of surveys six tiers to define OFLs and ABCs, with the GHL established by the State for the for the GOA including a two-vessel Tier 1 representing the highest level of Prince William Sound (PWS) pollock GOA trawl survey and GOA acoustic- information quality available and Tier 6 fishery. The Plan Team, SSC, AP, and trawl survey. The stock assessment representing the lowest level of Council have recommended that the process is adaptable to the changes in information quality available. The Plan sum of all State water and Federal water availability of survey data, as many Team used the FMP tier structure to pollock removals from the GOA not surveys are conducted periodically, calculate OFLs and ABCs for each exceed ABC recommendations. For 2021 rather than annually, and any changes groundfish species. The SSC adopted and 2022, the Council recommended the relevant to the stock assessment process the proposed 2021 and 2022 OFLs and W/C/WYK pollock ABC include the will be addressed in the final SAFE ABCs recommended by the Plan Team amount to account for the State’s PWS report. for all groundfish species. The proposed GHL. At the November 2018 Plan Team

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meeting, State fisheries managers 1). The Plan Team, SSC, AP, and time, NMFS determined that the 2019 recommended setting the future PWS Council recommended that the sum of biological assessment of stock condition GHL at 2.5 percent of the annual W/C/ all State water and Federal water Pacific for Pacific cod in the GOA projected WYK pollock ABC. For 2021, this yields cod removals from the GOA not exceed that the spawning biomass in the GOA a PWS pollock GHL of 2,797 mt, an ABC recommendations. Accordingly, would be below 20 percent of the increase of 85 mt from the 2020 PWS the Council recommended the 2021 and projected unfished spawning biomass GHL of 2,712 mt. After accounting for 2022 Pacific cod TACs in the Western, during 2020. Pursuant to § 679.20(d)(4), the PWS GHL, the 2021 and 2022 Central, and Eastern Regulatory Areas to the directed fishery for Pacific cod in pollock ABC for the combined W/C/ account for State GHLs. Therefore, the the GOA will remain closed until a WYK areas is then apportioned among proposed 2021 and 2022 Pacific cod subsequent biological assessment four statistical areas (Areas 610, 620, TACs are less than the proposed ABCs projects that the spawning biomass for 630, and 640) as both ABCs and TACs, by the following amounts: (1) Western Pacific cod in the GOA will exceed 20 as described below and detailed in GOA, 1,483 mt; (2) Central GOA, 2,115 percent of the projected unfished Table 1. The total ABCs and TACs for mt; and (3) Eastern GOA, 305 mt. These spawning biomass during a fishing year. the four statistical areas, plus the State amounts reflect the State’s 2021 and At the November 2020 Plan Team and GHL, do not exceed the combined W/C/ 2022 GHLs in these areas, which are 30 December 2020 SSC meetings, the Plan WYK ABC. The proposed W/C/WYK percent of the Western GOA proposed Team and SSC will review the Pacific 2021 and 2022 pollock ABC is 111,888 ABC, and 25 percent of the Eastern and cod stock assessment and evaluate the mt, and the proposed TAC is 109,091 Central GOA proposed ABCs. The stock condition of Pacific cod to mt. proposed 2021 and 2022 Pacific cod determine whether the directed fishery Apportionments of pollock to the W/ TACs also incorporate an additional C/WYK management areas are reduction (40 percent) from the for Pacific cod in the GOA will remain considered to be apportionments of proposed Pacific cod ABCs, after closed pursuant to § 679.20(d)(4). annual catch limit (ACLs) rather than deduction of the State GHL amounts. The Council’s recommendation for apportionments of ABCs. This more This reduction was recommended by sablefish area apportionments takes into accurately reflects that such the Council and implemented by NMFS account the prohibition on the use of apportionments address management in the final 2020 and 2021 harvest trawl gear in the SEO District of the concerns, rather than biological or specifications after the 2019 SAFE Eastern Regulatory Area (§ 679.7(b)(1)) conservation concerns. In addition, indicated that the spawning biomass of and makes available five percent of the apportionments of the ACL in this Pacific cod would be below 20 percent combined Eastern Regulatory Area manner allow NMFS to balance any of the projected unfished spawning TACs to vessels using trawl gear for use transfer of TAC among Areas 610, 620, biomass during 2020. At the December as incidental catch in other trawl and 630 pursuant to § 679.20(a)(5)(iv)(B) 2020 meeting, the Council will consider groundfish fisheries in the WYK District to ensure that the combined W/C/WYK whether to recommend any reduction of (§ 679.20(a)(4)(i)). Additional detail is ACL, ABC, and TAC are not exceeded. the final Pacific cod TACs based on the provided below. Tables 4 and 5 list the NMFS proposes pollock TACs in the most recent 2020 biological assessment proposed 2021 and 2022 allocations of Western Regulatory Area (Area 610), on the stock condition for Pacific cod. the sablefish TAC to fixed gear and Central Regulatory Area (Areas 620 and NMFS also proposes seasonal trawl gear in the GOA. 630), and the West Yakutat District apportionments of the Pacific cod TACs (Area 640) and the Southeast Outside in the Western and Central Regulatory For 2021 and 2022, the Council (SEO) District (Area 650) of the Eastern Areas. A portion of the annual TAC is recommends and NMFS proposes the Regulatory Area of the GOA (see Table apportioned to the A season for hook- OFLs, ABCs, and TACs listed in Table 1). NMFS also proposes seasonal and-line, pot, and jig gear from January 1. These amounts are consistent with apportionment of the annual pollock 1 through June 10, and for trawl gear the biological condition of groundfish TAC in the Western and Central from January 20 through June 10. The stocks as described in the 2019 SAFE Regulatory Areas of the GOA among remainder of the annual TAC is report. The proposed ABCs reflect Statistical Areas 610, 620, and 630. apportioned to the B season for jig gear harvest amounts that are less than the These apportionments are divided from June 10 through December 31, for specified overfishing levels. The equally among the following two hook-and-line and pot gear from proposed TACs are adjusted for other seasons: The A season (January 20 September 1 through December 31, and biological and socioeconomic through May 31) and the B season for trawl gear from September 1 through considerations. The sum of the (September 1 through November 1) November 1 (§§ 679.23(d)(3) and proposed TACs for all GOA groundfish (§§ 679.23(d)(2)(i) and (ii), and 679.20(a)(12)). The Western and Central is 402,783 mt for 2021 and 2022, which 679.20(a)(5)(iv)(A) and (B)). Additional GOA Pacific cod TACs are allocated is within the OY range specified by the detail is provided below; Table 2 lists among various gear and operational FMP. These proposed amounts and these amounts. sectors. The Pacific cod sector apportionments by area, season, and The proposed 2021 and 2022 Pacific apportionments are discussed in detail sector are subject to change pending cod TACs are set to accommodate the in a subsequent section and in Table 3 consideration of the 2020 SAFE report State’s GHLs for Pacific cod in State of this rule. and the Council’s recommendations for waters in the Western and Central In 2020, NMFS prohibited directed the final 2021 and 2022 harvest Regulatory Areas, as well as in PWS (in fishing for Pacific cod in the GOA, in specifications during its December 2020 the Eastern Regulatory Area) (see Table accordance with § 679.20(d)(4). At that meeting.

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TABLE 1—PROPOSED 2021 AND 2022 OFLS, ABCS, AND TACSOFGROUNDFISH FOR THE WESTERN/CENTRAL/WEST YAKUTAT, WESTERN, CENTRAL, AND EASTERN REGULATORY AREAS, THE WEST YAKUTAT AND SOUTHEAST OUTSIDE DISTRICTS OF THE EASTERN REGULATORY AREA, AND GULFWIDE DISTRICT OF THE GULF OF ALASKA [Values are rounded to the nearest metric ton]

Species Area 1 OFL ABC TAC 2

Pollock 2 ...... Shumagin (610) ...... n/a 19,775 19,775 Chirikof (620) ...... n/a 56,159 56,159 Kodiak (630) ...... n/a 27,429 27,429 WYK (640) ...... n/a 5,728 5,728 W/C/WYK (subtotal) ...... 149,988 111,888 109,091 SEO (650) ...... 13,531 10,148 10,148

Total ...... 163,519 122,036 119,239 Pacific cod 3 ...... W ...... n/a 4,942 2,076 C ...... n/a 8,458 3,806 E ...... n/a 1,221 549

Total ...... 30,099 14,621 6,431 Sablefish 4 ...... W ...... n/a 3,003 3,003 C ...... n/a 9,963 9,963 WYK ...... n/a 3,323 3,323 SEO ...... n/a 5,963 5,963 E (WYK and SEO) (subtotal) ...... n/a 9,286 9,286

Total (Alaska-wide OFL) ...... 64,765 22,252 22,252 Shallow-water flatfish 5 ...... W ...... n/a 24,256 13,250 C ...... n/a 28,205 28,205 WYK ...... n/a 2,820 2,820 SEO ...... n/a 1,128 1,128

Total ...... 69,129 56,409 45,403 Deep-water flatfish 6 ...... W ...... n/a 225 225 C ...... n/a 1,914 1,914 WYK ...... n/a 2,068 2,068 SEO ...... n/a 1,719 1,719

Total ...... 7,040 5,926 5,926 Rex sole ...... W ...... n/a 3,013 3,013 C ...... n/a 8,912 8,912 WYK ...... n/a 1,206 1,206 SEO ...... n/a 2,285 2,285

Total ...... 18,779 15,416 15,416 Arrowtooth flounder ...... W ...... n/a 30,545 14,500 C ...... n/a 66,683 66,683 WYK ...... n/a 9,946 6,900 SEO ...... n/a 17,183 6,900

Total ...... 148,597 124,357 94,983 Flathead sole ...... W ...... n/a 14,191 8,650 C ...... n/a 20,799 15,400 WYK ...... n/a 2,424 2,424 SEO ...... n/a 1,912 1,912

Total ...... 47,919 39,326 28,386 Pacific ocean perch 7 ...... W ...... n/a 1,379 1,379 C ...... n/a 22,727 22,727 WYK ...... n/a 1,410 1,410 W/C/WYK ...... 30,297 25,516 25,516 SEO ...... 5,303 4,467 4,467

Total ...... 35,600 29,983 29,983 Northern rockfish 8 ...... W ...... n/a 1,079 1,079 C ...... n/a 3,027 3,027 E ...... n/a 1 -

Total ...... 4,898 4,107 4,106 Shortraker rockfish 9 ...... W ...... n/a 52 52 C ...... n/a 284 284 E ...... n/a 372 372

Total ...... 944 708 708 Dusky rockfish 10 ...... W ...... n/a 759 759 C ...... n/a 2,688 2,688

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TABLE 1—PROPOSED 2021 AND 2022 OFLS, ABCS, AND TACSOFGROUNDFISH FOR THE WESTERN/CENTRAL/WEST YAKUTAT, WESTERN, CENTRAL, AND EASTERN REGULATORY AREAS, THE WEST YAKUTAT AND SOUTHEAST OUTSIDE DISTRICTS OF THE EASTERN REGULATORY AREA, AND GULFWIDE DISTRICT OF THE GULF OF ALASKA—Continued [Values are rounded to the nearest metric ton]

Species Area 1 OFL ABC TAC 2

WYK ...... n/a 113 113 SEO ...... n/a 38 38

Total ...... 4,396 3,598 3,598 Rougheye and blackspotted rockfish 11 ...... W ...... n/a 169 169 C ...... n/a 455 455 E ...... n/a 587 587

Total ...... 1,455 1,211 1,211 Demersal shelf rockfish 12 ...... SEO ...... 375 238 238 Thornyhead rockfish 13 ...... W ...... n/a 326 326 C ...... n/a 911 911 E ...... n/a 779 779

Total ...... 2,688 2,016 2,016 Other rockfish 14 15 ...... W/C combined ...... n/a 940 940 WYK ...... n/a 369 369 SEO ...... n/a 2,744 2,744

Total ...... 5,320 4,053 4,053 Atka mackerel ...... GW ...... 6,200 4,700 3,000 Big skates 16 ...... W ...... n/a 758 758 C ...... n/a 1,560 1,560 E ...... n/a 890 890

Total ...... 4,278 3,208 3,208 Longnose skates 17 ...... W ...... n/a 158 158 C ...... n/a 1,875 1,875 E ...... n/a 554 554

Total ...... 3,449 2,587 2,587 Other skates 18 ...... GW ...... 1,166 875 875 Sharks ...... GW ...... 10,913 8,184 8,184 Octopuses ...... GW ...... 1,307 980 980 Total ...... 632,836 466,791 402,783 1 Regulatory areas and districts are defined at § 679.2. (W=Western Gulf of Alaska; C=Central Gulf of Alaska; E=Eastern Gulf of Alaska; WYK=West Yakutat District; SEO=Southeast Outside District; GW=Gulf-wide). 2 The total for the W/C/WYK Regulatory Areas pollock ABC is 111,888 mt. After deducting 2.5 percent (2,797 mt) of that ABC for the State’s pollock GHL fishery, the remaining pollock ABC of 109,091 mt (for the W/C/WYK Regulatory Areas) is apportioned among four statistical areas (Areas 610, 620, 630, and 640). These apportionments are considered subarea ACLs, rather than ABCs, for specification and reapportionment purposes. The ACLs in Areas 610, 620, and 630 are further divided by season, as detailed in Table 2. In the West Yakutat (Area 640) and Southeast Outside (Area 650) Districts of the Eastern Regulatory Area, pollock is not divided into seasonal allowances. 3 The annual Pacific cod TAC is apportioned: (1) 63.84 percent to the A season and 36.16 percent to the B season and (2) 64.16 percent to the A season and 35.84 percent to the B season in the Western and Central Regulatory Areas of the GOA, respectively. The Pacific cod TAC in the Eastern Regulatory Area of the GOA is allocated 90 percent to vessels harvesting Pacific cod for processing by the inshore component and 10 percent to vessels harvesting Pacific cod for processing by the offshore component. Table 3 lists the proposed 2021 and 2022 Pacific cod seasonal apportionments and sector allocations. 4 The Sablefish OFL is set Alaska-wide. Additionally, sablefish is allocated to fixed and trawl gear in 2021 and trawl gear in 2022. Tables 4 and 5 list the proposed 2021 and 2022 allocations of sablefish TACs. 5 ‘‘Shallow-water flatfish’’ means flatfish not including ‘‘deep-water flatfish,’’ flathead sole, rex sole, or arrowtooth flounder. 6 ‘‘Deep-water flatfish’’ means Dover sole, Greenland turbot, Kamchatka flounder, and deepsea sole. 7 ‘‘Pacific ocean perch’’ means Sebastes alutus. 8 ‘‘Northern rockfish’’ means Sebastes polyspinous. For management purposes the 1 mt apportionment of ABC to the WYK District of the East- ern Regulatory Area has been included in the ‘‘other rockfish’’ species group. 9 ‘‘Shortraker rockfish’’ means Sebastes borealis. 10 ‘‘Dusky rockfish’’ means Sebastes variabilis. 11 ‘‘Rougheye and blackspotted rockfish’’ means Sebastes aleutianus (rougheye) and Sebastes melanostictus (blackspotted). 12 ‘‘Demersal shelf rockfish’’ means Sebastes pinniger (canary), S. nebulosus (china), S. caurinus (copper), S. maliger (quillback), S. helvomaculatus (rosethorn), S. nigrocinctus (tiger), and S. ruberrimus (yelloweye). 13 ‘‘Thornyhead rockfish’’ means Sebastes species. 14 ‘‘Other rockfish means Sebastes aurora (aurora), S. melanostomus (blackgill), S. paucispinis (bocaccio), S. goodei (chilipepper), S. crameri (darkblotch), S. elongatus (greenstriped), S. variegatus (harlequin), S. wilsoni (pygmy), S. babcocki (redbanded), S. proriger (redstripe), S. zacentrus (sharpchin), S. jordani (shortbelly), S. brevispinis (silvergray), S. diploproa (splitnose), S. saxicola (stripetail), S. miniatus (vermilion), S. reedi (yellowmouth), S. entomelas (widow), and S. flavidus (yellowtail). In the Eastern GOA only, ‘‘other rockfish’’ also includes northern rockfish (S. polyspinous). 15 ‘‘Other rockfish’’ in the Western and Central Regulatory Areas and in the West Yakutat District of the Eastern Regulatory Area means all rockfish species included in the ‘‘other rockfish’’ and demersal shelf rockfish categories. The ‘‘other rockfish’’ species group in the SEO District only includes other rockfish. 16 ‘‘Big skates’’ means Raja binoculata. 17 ‘‘Longnose skates’’ means Raja rhina. 18 ‘‘Other skates’’ means Bathyraja and Raja spp.

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Proposed Apportionment of Reserves described earlier in the preamble, the Regional Administrator Section 679.20(b)(2) requires NMFS to regulatory revisions implemented by (§ 679.20(a)(5)(iv)(B)). The rollover set aside 20 percent of each TAC for Amendment 109 to the FMP (85 FR amount is limited to 20 percent of the pollock, Pacific cod, flatfish, sharks, and 38093, June 25, 2020) decreased the subsequent seasonal TAC octopuses in reserve for possible number of seasons to two and apportionment for the statistical area. apportionment at a later date during the established two equal seasonal Any unharvested pollock above the 20- fishing year. Section 679.20(b)(3) allowances of 50 percent. NMFS is percent limit could be further authorizes NMFS to reapportion all or incorporating these regulatory revisions distributed to the subsequent season in part of these reserves. In 2020, NMFS (which are effective January 1, 2021) the other statistical areas, in proportion reapportioned all of the reserves in the into the harvest specifications for the to the estimated biomass to the final harvest specifications. For 2021 GOA, and Table 2, below, reflects the subsequent season and in an amount no and 2022, NMFS proposes revised seasons and seasonal allocations more than 20 percent of the seasonal reapportionment of each of the reserves implemented by Amendment 109 to the TAC apportionment in those statistical for pollock, Pacific cod, flatfish, sharks, FMP. areas (§ 679.20(a)(5)(iv)(B)). The and octopuses back into the original The GOA pollock stock assessment proposed 2021 and 2022 pollock TACs TAC from which the reserve was continues to use a four-season in the WYK District of 5,728 mt and the derived. NMFS expects, based on recent methodology to determine pollock SEO District of 10,148 mt are not harvest patterns, that such reserves will distribution in the Western and Central allocated by season. not be necessary and that the entire TAC Regulatory Areas of the GOA to maintain continuity in the historical Table 2 lists the proposed 2021 and for each of these species will be caught. 2022 area apportionments and seasonal The TACs in Table 1 reflect this pollock apportionment time-series. Pollock TACs in the Western and allowances of pollock in the Western proposed reapportionment of reserve and Central Regulatory Areas. The amounts to the original TAC for these Central Regulatory Areas of the GOA are apportioned among Statistical Areas amounts of pollock for processing by the species and species groups, i.e., each inshore and offshore components are proposed TAC for the above-mentioned 610, 620, and 630 in proportion to the not shown. Section 679.20(a)(6)(i) species or species groups contains the distribution of pollock biomass requires allocation of 100 percent of the full TAC recommended by the Council. determined by the most recent NMFS surveys, pursuant to pollock TAC in all regulatory areas and Proposed Apportionments of Pollock § 679.20(a)(5)(iv)(A). The pollock all seasonal allowances to vessels TAC Among Seasons and Regulatory chapter of the 2019 SAFE report (see catching pollock for processing by the Areas, and Allocations for Processing by ADDRESSES) contains a comprehensive inshore component after subtraction of Inshore and Offshore Components description of the apportionment and amounts projected by the Regional In the GOA, pollock is apportioned by reasons for the minor changes from past Administrator to be caught by, or season and area, and is further allocated apportionments. For purposes of delivered to, the offshore component for processing by inshore and offshore specifying pollock between two seasons incidental to directed fishing for other components. Pursuant to for the Western and Central Regulatory groundfish species. Thus, the amount of § 679.20(a)(5)(iv)(B), the annual pollock Areas of the GOA, NMFS has summed pollock available for harvest by vessels TAC specified for the Western and the A and B season apportionments and harvesting pollock for processing by the Central Regulatory Areas of the GOA is the C and D season apportionments as offshore component is the amount that apportioned into two seasonal calculated in the 2019 GOA pollock will be taken as incidental catch during allowances of 50 percent. As established assessment. This yields the seasonal directed fishing for groundfish species by § 679.23(d)(2)(i) through (ii), the A amounts specified for the A season and other than pollock, up to the maximum and B season allowances are available the B season, respectively. retainable amounts allowed by from January 20 through May 31 and Within any fishing year, the amount § 679.20(e) and (f). At this time, these September 1 through November 1, by which a seasonal allowance is incidental catch amounts of pollock are respectively. This is a change from 2020 underharvested or overharvested may be unknown and will be determined and prior years, when there were four added to, or subtracted from, during the 2021 fishing year during the specified pollock seasons of equal subsequent seasonal allowances in a course of fishing activities by the seasonal allowances of 25 percent. As manner to be determined by the offshore component.

TABLE 2—PROPOSED 2021 AND 2022 DISTRIBUTION OF POLLOCK IN THE CENTRAL AND WESTERN REGULATORY AREAS OF THE GULF OF ALASKA; AREA APPORTIONMENTS; AND SEASONAL ALLOWANCES OF ANNUAL TAC 1 [Values are rounded to the nearest metric ton]

Shumigan Chirikof Kodiak Season 2 3 (Area 610) (Area 620) (Area 630) Total

A (January 20–May 31) ...... 1,067 42,260 8,354 51,682 B (September 1–November 1) ...... 18,708 13,899 19,074 51,682

Annual Total ...... 19,775 56,159 27,429 103,363 1 Area apportionments and seasonal allowances may not total precisely due to rounding. 2 As established by § 679.23(d)(2)(i) through (ii), the A and B season allowances are available from January 20 through May 31 and Sep- tember 1 through November 1, respectively. The amounts of pollock for processing by the inshore and offshore components are not shown in this table. 3 The West Yakutat and Southeast Outside District pollock TACs are not allocated by season and are not included in the total pollock TACs shown in this table.

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Proposed Annual and Seasonal gear, CPs using trawl gear, and vessels Central GOA Pacific cod TACs, Apportionments of Pacific Cod TAC using pot gear (§ 679.20(a)(12)(i)(A)). depending on the annual performance The overall seasonal apportionments of of the jig sector (see Table 1 of Pursuant to § 679.20(a)(12)(i), NMFS the annual TAC in the Western GOA are Amendment 83 to the FMP for a proposes allocations for the 2021 and 63.84 percent to the A season and 36.16 detailed discussion of the jig sector 2022 Pacific cod TACs in the Western percent to the B season, and in the allocation process (76 FR 74670, and Central Regulatory Areas of the Central GOA are 64.16 percent to the A December 1, 2011)). Jig sector allocation GOA among gear and operational season and 35.84 percent to the B increases are established for a minimum sectors. NMFS also proposes allocating season. of two years. the 2021 and 2022 Pacific cod TACs Under § 679.20(a)(12)(ii), any overage NMFS has evaluated the historical annually between the inshore (90 or underage of the Pacific cod allowance harvest performance of the jig sector in percent) and offshore (10 percent) from the A season may be subtracted the Western and Central GOA, and components in the Eastern Regulatory from, or added to, the subsequent B proposes 2021 and 2022 Pacific cod Area of the GOA (§ 679.20(a)(6)(ii)). In season allowance. In addition, any apportionments to this sector based on the Central GOA, the Pacific cod TAC is portion of the hook-and-line, trawl, pot, its historical harvest performance apportioned seasonally first to vessels or jig sector allocations that is through 2019. For 2021 and 2022, using jig gear, and then among CVs less determined by NMFS as likely to go NMFS proposes that the jig sector than 50 feet in length overall using unharvested by a sector may be receive 3.5 percent of the annual Pacific hook-and-line gear, CVs equal to or reallocated to other sectors for harvest cod TAC in the Western GOA. This greater than 50 feet in length overall during the remainder of the fishing year. includes a base allocation of 1.5 percent using hook-and-line gear, catcher/ Pursuant to § 679.20(a)(12)(i)(A) and and an additional performance increase processors (CPs) using hook-and-line (B), a portion of the annual Pacific cod of 2.0 percent. NMFS also proposes that gear, CVs using trawl gear, CPs using TACs in the Western and Central GOA the jig sector receive 1.0 percent of the trawl gear, and vessels using pot gear will be allocated to vessels with a annual Pacific cod TAC in the Central (§ 679.20(a)(12)(i)(B)). In the Western Federal fisheries permit that use jig gear GOA. This includes a base allocation of GOA, the Pacific cod TAC is before the TACs are apportioned among 1.0 percent and no additional apportioned seasonally first to vessels other non-jig sectors. In accordance with performance increase. The 2014 through using jig gear, and then among CVs the FMP, the annual jig sector 2019 Pacific cod jig allocations, catch, using hook-and-line gear, CPs using allocations may increase to up to 6 and percent allocation changes are hook-and-line gear, CVs using trawl percent of the annual Western and listed in Figure 1.

FIGURE 1—SUMMARY OF WESTERN GOA AND CENTRAL GOA PACIFIC COD CATCH BY JIG GEAR IN 2014 THROUGH 2019, AND CORRESPONDING PERCENT ALLOCATION CHANGES

Percent of Area Year Initial percent Initial TAC Catch initial >90% of initial Change to percent of TAC allocation (mt) allocation allocation? allocation

Western GOA ...... 2014 2.5 573 785 137 Y Increase 1%. 2015 3.5 948 55 6 N None. 2016 3.5 992 52 5 N Decrease 1%. 2017 2.5 635 49 8 N Decrease 1%. 2018 1.5 125 121 97 Y Increase 1%. 2019 2.5 134 134 100 Y Increase 1%. Central GOA...... 2014 2.0 797 262 33 N Decrease 1%. 2015 1.0 460 355 77 N None. 2016 1.0 370 267 72 N None. 2017 1.0 331 18 6 N None. 2018 1.0 61 0 0 N None. 2019 1.0 58 30 52 N None.

For 2021 and 2022, NMFS proposes December 23, 2019). As discussed and decreasing the B season allocation, apportioning the jig sector allocations earlier in this preamble, the directed with the intent of decreasing the annual for the Western and Central GOA fishing prohibition was issued pursuant underharvest of Pacific cod by this between the A season (60 percent) and to § 679.20(d)(4) and required because sector. NMFS is incorporating the the B season (40 percent). This is the the 2019 biological assessment of stock revised seasonal apportionments to same jig sector seasonal apportionments condition for Pacific cod in the GOA trawl CVs between the A and B seasons implemented in prior groundfish projected that the spawning biomass in in accordance with regulatory changes harvest specifications for the GOA and the GOA would be below 20 percent of made under Amendment 109. The A is consistent with Amendment 83 to the the projected unfished spawning season apportionment for trawl CVs has FMP (76 FR 44700; July 26, 2011). biomass during 2020. increased to 31.54 percent and 25.29 NMFS will not evaluate the 2020 As discussed earlier in this preamble, percent in the Western and Central performance of the jig sectors in the NMFS published a final rule (85 FR Regulatory Areas of the GOA, Western and Central GOA: Since NMFS 38093, June 25, 2020) to implement respectively. The B season prohibited directed fishing for all Amendment 109 to the FMP. With apportionment for trawl CVs has Pacific cod sectors in 2020, the catch for respect to Pacific cod, Amendment 109 decreased to 6.86 percent and 16.29 the jig sectors will not reach 90 percent revised the Pacific cod TAC seasonal percent in the Western and Central of the initial allocation required for a apportionments to the trawl CV sector Regulatory Areas of the GOA, performance increase (84 FR 70438, by increasing the A season allocation respectively. The seasonal allowances of

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the trawl CV sector’s annual TAC limit the revised seasonal apportionments. forth the seasonal apportionments and in the Western and Central Regulatory Table 3 lists these revisions in the trawl allocations of the proposed 2021 and Area of the GOA are revised to reflect CV seasonal apportionments and sets 2022 Pacific cod TACs.

TABLE 3—PROPOSED 2021 AND 2022 SEASONAL APPORTIONMENTS AND ALLOCATIONS OF PACIFIC COD TAC AMOUNTS IN THE GOA; ALLOCATIONS IN THE WESTERN GOA AND CENTRAL GOA SECTORS, AND THE EASTERN GOA INSHORE AND OFFSHORE PROCESSING COMPONENTS [Values are rounded to the nearest metric ton]

A Season B Season Annual Sector Sector Regulatory area and sector allocation percentage of Seasonal percentage of Seasonal (mt) annual non-jig allowances annual non-jig allowances TAC (mt) TAC (mt)

Western GOA: Jig (3.5% of TAC) ...... 73 N/A 44 N/A 29 Hook-and-line CV ...... 28 0.70 14 0.70 14 Hook-and-line CP ...... 397 10.90 218 8.90 178 Trawl CV ...... 769 31.54 632 6.86 137 Trawl CP ...... 48 0.90 18 1.50 30 Pot CV and Pot CP ...... 761 19.80 397 18.20 365

Total ...... 2,076 63.84 1,323 36.16 753

Central GOA: Jig (1.0% of TAC) ...... 38 N/A 23 N/A 15 Hook-and-line <50 CV ...... 550 9.32 351 5.29 199 Hook-and-line ≥50 CV ...... 253 5.61 211 1.10 41 Hook-and-line CP ...... 192 4.11 155 1.00 38 Trawl CV 1 ...... 1,567 25.29 953 16.29 614 Trawl CP ...... 158 2.00 75 2.19 83 Pot CV and Pot CP ...... 1,048 17.83 672 9.97 376

Total ...... 3,806 64.16 2,440 35.84 1,366

Eastern GOA ...... Inshore (90% of Annual TAC) Offshore (10% of Annual TAC)

549 494 55 1 Trawl catcher vessels participating in Rockfish Program cooperatives receive 3.81 percent, or 145 mt, of the annual Central GOA Pacific cod TAC (see Table 28c to 50 CFR part 679). This apportionment is deducted from the Trawl CV B season allowance (see Table 8: Apportionments of Rockfish Secondary Species in the Central GOA and Table 28c to 50 CFR part 679).

Proposed Allocations of the Sablefish Eastern Regulatory Area. The remainder The Council also recommended that TAC Amounts to Vessels Using Fixed of the WYK District sablefish TAC is the fixed gear sablefish TAC be Gear and Trawl Gear allocated to vessels using fixed gear. established annually to ensure that the Section 679.20(a)(4)(i) and (ii) This proposed action allocates 100 sablefish IFQ fishery is conducted requires allocations of sablefish TACs percent of the sablefish TAC in the SEO concurrently with the halibut IFQ for each of the regulatory areas and District to vessels using fixed gear. This fishery and is based on the most recent districts to fixed and trawl gear. In the results in a proposed 2021 allocation of survey information. Since there is an Western and Central Regulatory Areas, 464 mt to trawl gear and 2,859 mt to annual assessment for sablefish and 80 percent of each TAC is allocated to fixed gear in the WYK District, a since the final harvest specifications are fixed gear, and 20 percent of each TAC proposed 2022 allocation of 5,963 mt to expected to be published before the IFQ is allocated to trawl gear. In the Eastern fixed gear in the SEO District, and a season begins (typically, in early Regulatory Area, 95 percent of the TAC proposed 2022 allocation of 464 mt to March), the Council recommended that the fixed gear sablefish TAC be set is allocated to fixed gear, and 5 percent trawl gear in the WYK District. Table 4 annually, rather than for 2 years, so that is allocated to trawl gear. The trawl gear lists the allocations of the proposed the best available scientific information allocation in the Eastern Regulatory 2021 sablefish TACs to fixed and trawl could be considered in establishing the Area may be used only to support gear. Table 5 lists the allocations of the incidental catch of sablefish while sablefish ABCs and TACs. Accordingly, proposed 2022 sablefish TACs to trawl Table 4 lists the proposed 2021 fixed directed fishing for other target species gear. using trawl gear (§ 679.20(a)(4)(i)). gear allocations, and the 2022 fixed gear In recognition of the prohibition The Council recommended that the allocations will be specified in the 2022 against trawl gear in the SEO District of trawl sablefish TAC be established for and 2023 harvest specifications. the Eastern Regulatory Area, the Council two years so that retention of incidental With the exception of the trawl recommended and NMFS proposes catch of sablefish by trawl gear could allocations that are provided to the specifying for incidental catch the commence in January in the second year Rockfish Program (see Table 28c to 50 allocation of 5 percent of the combined of the groundfish harvest specifications. CFR part 679), directed fishing for Eastern Regulatory Area sablefish TAC Tables 4 and 5 list the proposed 2021 sablefish with trawl gear is closed to trawl gear in the WYK District of the and 2022 trawl allocations, respectively. during the fishing year. Also, fishing for

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groundfish with trawl gear is prohibited sablefish allocation to trawl gear would the final 2022 and 2023 harvest prior to January 20 (§ 679.23(c)). be reached before the effective date of specifications. Therefore, it is not likely that the

TABLE 4—PROPOSED 2021 SABLEFISH TAC AMOUNTS IN THE GULF OF ALASKA AND ALLOCATIONS TO FIXED AND TRAWL GEAR [Values are rounded to the nearest metric ton]

Fixed gear Trawl Area/district TAC allocation allocation

Western ...... 3,003 2,402 601 Central 1 ...... 9,963 7,970 1,993 West Yakutat 2 ...... 3,323 2,859 464 Southeast Outside ...... 5,963 5,963 0

Total ...... 22,252 19,195 3,058 1 The trawl allocation of sablefish to the Central Regulatory Area is further apportioned to the Rockfish Program cooperatives (1,025 mt). See Table 8: Apportionments of Rockfish Secondary Species in the Central GOA. This results in 968 mt being available for the non-Rockfish Program trawl fisheries. 2 The proposed trawl allocation is based on allocating 5 percent of the combined Eastern Regulatory Area (West Yakutat and Southeast Out- side Districts combined) sablefish TAC to trawl gear in the West Yakutat District.

TABLE 5—PROPOSED 2022 SABLEFISH TAC AMOUNTS IN THE GULF OF ALASKA AND ALLOCATION TO TRAWL GEAR 1 [Values are rounded to the nearest metric ton]

Fixed gear Trawl Area/district TAC allocation allocation

Western ...... 3,003 n/a 601 Central 2 ...... 9,963 n/a 1,993 West Yakutat 3 ...... 3,323 n/a 464 Southeast Outside ...... 5,963 n/a 0

Total ...... 22,252 n/a 3,058 1 The Council recommended that harvest specifications for the fixed gear sablefish Individual Fishing Quota fisheries be limited to 1 year. 2 The trawl allocation of sablefish to the Central Regulatory Area is further apportioned to the Rockfish Program cooperatives (1,025 mt). See Table 8: Apportionments of Rockfish Secondary Species in the Central GOA. This results in 968 mt being available for the non-Rockfish Program trawl fisheries. 3 The proposed trawl allocation is based on allocating 5 percent of the combined Eastern Regulatory Area (West Yakutat and Southeast Out- side Districts combined) sablefish TAC to trawl gear in the West Yakutat District.

Proposed Allocations, Apportionments, includes hook-and-line, jig, troll, and Section 679.81(a)(2)(ii) and Table 28e and Sideboard Limitations for the handline gear. to 50 CFR part 679 require allocations Rockfish Program Under the Rockfish Program, rockfish of 5 mt of Pacific ocean perch, 5 mt of These proposed 2021 and 2022 primary species in the Central GOA are northern rockfish, and 50 mt of dusky harvest specifications for the GOA allocated to participants after deducting rockfish to the entry level longline include the fishery cooperative for incidental catch needs in other fishery in 2021 and 2022. The allocation allocations and sideboard limitations directed fisheries (§ 679.81(a)(2)). for the entry level longline fishery may established by the Rockfish Program. Participants in the Rockfish Program increase incrementally each year if the Program participants are primarily trawl also receive a portion of the Central catch exceeds 90 percent of the CVs and trawl CPs, with limited GOA TAC of specific secondary species. allocation of a species. The incremental participation by vessels using longline In addition to groundfish species, the increase in the allocation would gear. The Rockfish Program assigns Rockfish Program allocates a portion of continue each year until it reaches the quota share and cooperative quota to the halibut PSC limit (191 mt) from the maximum percentage of the TAC for trawl participants for primary species third season deep-water species fishery that species. In 2020, the catch for all (Pacific ocean perch, northern rockfish, allowance for the GOA trawl fisheries to three primary species did not exceed 90 and dusky rockfish) and secondary Rockfish Program participants percent of any allocated rockfish species (Pacific cod, rougheye rockfish, (§ 679.81(d) and Table 28d to 50 CFR species. Therefore, NMFS is not sablefish, shortraker rockfish, and part 679). The Rockfish Program also proposing any increases to the entry thornyhead rockfish), allows a establishes sideboard limits to restrict level longline fishery 2021 and 2022 participant holding a license limitation the ability of harvesters operating under allocations in the Central GOA. The program (LLP) license with rockfish the Rockfish Program to increase their remainder of the TACs for the rockfish quota share to form a rockfish participation in other, non-Rockfish primary species, after subtracting the cooperative with other persons, and Program fisheries. These restrictions incidental catch amounts (ICAs), would allows holders of CP LLP licenses to opt and halibut PSC limits are discussed in be allocated to the CV and CP out of the fishery. The Rockfish Program a subsequent section in this rule titled cooperatives (§ 679.81(a)(2)(iii)). Table 6 also has an entry level fishery for ‘‘Rockfish Program Groundfish lists the allocations of the proposed rockfish primary species for vessels Sideboard and Halibut PSC 2021 and 2022 TACs for each rockfish using longline gear. Longline gear Limitations.’’ primary species to the entry level

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longline fishery, the potential TACs for the entry level longline incremental increases for future years, fishery. and the maximum percentages of the

TABLE 6—PROPOSED 2021 AND 2022 ALLOCATIONS OF ROCKFISH PRIMARY SPECIES TO THE ENTRY LEVEL LONGLINE FISHERY IN THE CENTRAL GULF OF ALASKA

Incremental increase in Proposed 2022 if >90 Up to 2021 and percent of maximum Rockfish primary species 2022 2021 percent of allocations allocation is each TAC of: [metric tons] harvested [metric tons]

Pacific ocean perch ...... 5 5 1 Northern rockfish ...... 5 5 2 Dusky rockfish ...... 50 20 5

Section 679.81 requires allocations of ocean perch, 300 mt of northern therefore, NMFS cannot calculate 2021 rockfish primary species among various rockfish, and 250 mt of dusky rockfish. and 2022 allocations in conjunction sectors of the Rockfish Program. Table 7 These amounts are based on recent with these proposed harvest lists the proposed 2021 and 2022 average incidental catches in the Central specifications. NMFS will post the 2021 allocations of rockfish primary species GOA by other groundfish fisheries. allocations on the Alaska Region in the Central GOA to the entry level Allocations among vessels belonging website at https:// longline fishery, and rockfish CV and to CV or CP cooperatives are not www.fisheries.noaa.gov/alaska/ CP cooperatives in the Rockfish included in these proposed harvest sustainable-fisheries/alaska-fisheries- Program. NMFS also proposes setting specifications. Rockfish Program management-reports#central-goa- aside incidental catch amounts (ICAs) applications for CV cooperatives and CP rockfish when they become available for other directed fisheries in the cooperatives are not due to NMFS until after March 1. Central GOA of 3,000 mt of Pacific March 1 of each calendar year;

TABLE 7—PROPOSED 2021 AND 2022 ALLOCATIONS OF ROCKFISH PRIMARY SPECIES IN THE CENTRAL GULF OF ALASKA TO THE ENTRY LEVEL LONGLINE FISHERY AND ROCKFISH COOPERATIVES IN THE ROCKFISH PROGRAM [Values are rounded to the nearest metric ton]

Incidental Allocation to Central GOA catch TAC minus the entry level Allocation to Rockfish primary species 1 the rockfish TAC allowance ICA longline 2 (ICA) fishery cooperatives

Pacific ocean perch ...... 22,727 3,000 19,727 5 19,722 Northern rockfish ...... 3,027 300 2,727 5 2,722 Dusky rockfish ...... 2,688 250 2,438 50 2,388

Total ...... 28,442 3,550 24,892 60 24,832 1 Longline gear includes hook-and-line, jig, troll, and handline gear (§ 679.2). 2 Rockfish cooperatives include vessels in CV and CP cooperatives (§ 679.81).

Section 679.81(c) and Table 28c to 50 allocation, and thornyhead rockfish. CP apportionments of the proposed 2021 CFR part 679 requires allocations of cooperatives receive allocations of and 2022 TACs of rockfish secondary rockfish secondary species to CV and CP sablefish from the trawl gear allocation, species in the Central GOA to CV and cooperatives in the Central GOA. CV rougheye and blackspotted rockfish, CP cooperatives. cooperatives receive allocations of shortraker rockfish, and thornyhead Pacific cod, sablefish from the trawl gear rockfish. Table 8 lists the

TABLE 8—PROPOSED 2021 AND 2022 APPORTIONMENTS OF ROCKFISH SECONDARY SPECIES IN THE CENTRAL GOA TO CATCHER VESSEL AND CATCHER/PROCESSOR COOPERATIVES [Values are in metric tons]

Catcher vessel cooperatives Catcher/processor cooperatives Rockfish secondary species Central GOA annual TAC Percentage of Apportionment Percentage of Apportionment TAC (mt) TAC (mt)

Pacific cod ...... 3,806 3.81 145 0.0 0 Sablefish ...... 9,963 6.78 675 3.51 350 Shortraker rockfish ...... 284 0.0 0 40.00 114

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TABLE 8—PROPOSED 2021 AND 2022 APPORTIONMENTS OF ROCKFISH SECONDARY SPECIES IN THE CENTRAL GOA TO CATCHER VESSEL AND CATCHER/PROCESSOR COOPERATIVES—Continued [Values are in metric tons]

Catcher vessel cooperatives Catcher/processor cooperatives Rockfish secondary species Central GOA annual TAC Percentage of Apportionment Percentage of Apportionment TAC (mt) TAC (mt)

Rougheye and blackspotted rockfish ...... 455 0.0 0 58.87 268 Thornyhead rockfish ...... 911 7.84 71 26.50 241

Halibut PSC Limits 2021 and 2022. The Council distribution of target groundfish species Section 679.21(d) establishes annual recommended, and NMFS is proposing, relative to halibut distribution, (3) halibut PSC limit apportionments to these exemptions because (1) pot gear expected halibut bycatch needs on a trawl and hook-and-line gear, and fisheries have low annual halibut seasonal basis relative to changes in authorizes the establishment of bycatch mortality; (2) IFQ program halibut biomass and expected catch of apportionments for pot gear. In October regulations prohibit discard of halibut if target groundfish species, (4) expected 2020, the Council recommended, and any halibut IFQ permit holder on board bycatch rates on a seasonal basis, (5) NMFS proposes, halibut PSC limits of a CV holds unused halibut IFQ for that expected changes in directed groundfish 1,706 mt for trawl gear, 257 mt for hook- vessel category and the IFQ regulatory fishing seasons, (6) expected actual start and-line gear, and 9 mt for the demersal area in which the vessel is operating of fishing effort, and (7) economic shelf rockfish (DSR) fishery in the SEO (§ 679.7(f)(11)); (3) some sablefish IFQ effects of establishing seasonal halibut District for both 2021 and 2022. permit holders hold halibut IFQ permits allocations on segments of the target The DSR fishery in the SEO District and are therefore required to retain the groundfish industry. Based on public is defined at § 679.21(d)(2)(ii)(A). This halibut they catch while fishing comment, information presented in the fishery is apportioned 9 mt of the sablefish IFQ; and (4) NMFS estimates 2019 SAFE report, NMFS catch data, halibut PSC limit in recognition of its negligible halibut mortality for the jig State catch data, or International Pacific small-scale harvests of groundfish gear fisheries given the small amount of Halibut Commission (IPHC) stock (§ 679.21(d)(2)(i)(A)). The separate groundfish harvested by jig gear, the assessment and mortality data, the halibut PSC limit for the DSR fishery is selective nature of jig gear, and the high Council may recommend or NMFS may intended to prevent that fishery from survival rates of halibut caught and make changes to the seasonal, gear-type, being impacted from the halibut PSC released with jig gear. or fishery category apportionments of incurred by other GOA fisheries. NMFS The best available information on halibut PSC limits for the final 2021 and estimates low halibut bycatch in the estimated halibut bycatch consists of 2022 harvest specifications pursuant to DSR fishery because (1) the duration of data collected by fisheries observers § 679.21(d)(1) and (d)(4). the DSR fisheries and the gear soak during 2020. The calculated halibut The final 2020 and 2021 harvest times are short, (2) the DSR fishery bycatch mortality through October 24, specifications (85 FR 13802, March 10, occurs in the winter when there is less 2020 is 756 mt for trawl gear and 2 mt 2020) summarized the Council’s and overlap in the distribution of DSR and for hook-and-line gear, for a total halibut NMFS’s findings for these FMP and halibut, and (3) the directed commercial mortality of 758 mt. This halibut regulatory considerations with respect DSR fishery has a low DSR TAC. The mortality was calculated using to halibut PSC limits. The Council’s and Alaska Department of Fish and Game groundfish and IFQ halibut catch data NMFS’s proposed findings for these sets the commercial GHL for the DSR from the NMFS Alaska Region’s catch proposed 2021 and 2022 harvest fishery after deducting (1) estimates of accounting system. This accounting specifications are unchanged from the DSR incidental catch in all fisheries system contains historical and recent final 2020 and 2021 harvest (including halibut and subsistence); and catch information compiled from each specifications. Table 9 lists the (2) the allocation to the DSR sport fish Alaska groundfish and IFQ halibut proposed 2021 and 2022 Pacific halibut fishery. In 2020, the commercial fishery fishery. PSC limits, allowances, and for DSR was closed due to concerns Section 679.21(d)(4)(i) and (ii) apportionments. The halibut PSC limits about declining DSR biomass. authorizes NMFS to seasonally in these tables reflect the halibut PSC The FMP authorizes the Council to apportion the halibut PSC limits after limits set forth at § 679.21(d)(2) and (3). exempt specific gear from the halibut consultation with the Council. The FMP Section 679.21(d)(4)(iii) and (iv) PSC limits. NMFS, after consultation and regulations require that the Council specifies that any underages or overages with the Council, proposes to exempt and NMFS consider the following of a seasonal apportionment of a halibut pot gear, jig gear, and the sablefish IFQ information in seasonally apportioning PSC limit will be added to or deducted hook-and-line gear fishery categories halibut PSC limits: (1) Seasonal from the next respective seasonal from the non-trawl halibut PSC limit for distribution of halibut, (2) seasonal apportionment within the fishing year.

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TABLE 9—PROPOSED 2021 AND 2022 PACIFIC HALIBUT PSC LIMITS, ALLOWANCES, AND APPORTIONMENTS [Values are in metric tons]

Trawl gear Hook-and-line gear 1 Other than DSR DSR Season Percent Amount Season Percent Amount Season Amount

January 20–April 1 ...... 30.5 519 January 1–June 10 ...... 86 221 January 1–December 9 31. April 1–July 1 ...... 20 341 June 10–September 1 ...... 2 5 July 1–August 1 ...... 27 462 September 1–December 31 12 31 August 1–October 1 ...... 7.5 128 October 1–December 31 .... 15 256

Total ...... 1,706 ...... 257 ...... 9 1 The Pacific halibut prohibited species catch (PSC) limit for hook-and-line gear is allocated to the demersal shelf rockfish (DSR) fishery in the SEO District and to hook-and-line fisheries other than the DSR fishery. The Council recommended and NMFS proposes that the hook-and-line sablefish fishery, and the pot and jig gear groundfish fisheries, be exempt from halibut PSC limits.

Section 679.21(d)(3)(ii) authorizes NMFS will combine available trawl includes 117 mt of halibut PSC limit to further apportionment of the trawl halibut PSC limit apportionments in the CV sector and 74 mt of halibut PSC halibut PSC limit as bycatch allowances part of the second season deep-water limit to the CP sector. These amounts to trawl fishery categories listed in and shallow-water species fisheries for are allocated from the trawl deep-water § 679.21(d)(3)(iii). The annual use in either fishery from May 15 species fishery’s halibut PSC third apportionments are based on each through June 30 (§ 679.21(d)(4)(iii)(D)). seasonal apportionment. After the category’s share of the anticipated This is intended to maintain groundfish combined CV and CP halibut PSC limit halibut bycatch mortality during a harvest while minimizing halibut allocation of 191 mt to the Rockfish fishing year and optimization of the bycatch by these sectors to the extent Program, 150 mt remains for the trawl total amount of groundfish harvest practicable. This provides the trawl gear deep-water species fishery’s halibut PSC under the halibut PSC limit. The fishery deep-water and shallow-water species third seasonal apportionment. categories for the trawl halibut PSC fisheries additional flexibility and the Section 679.21(d)(4)(iii)(B) limits the limits are (1) a deep-water species incentive to participate in fisheries at amount of the halibut PSC limit fishery, composed of sablefish, rockfish, times of the year that may have lower allocated to Rockfish Program deep-water flatfish, rex sole, and halibut PSC rates relative to other times participants that could be re- arrowtooth flounder; and (2) a shallow- of the year. apportioned to the general GOA trawl water species fishery, composed of Table 10 lists the proposed 2021 and fisheries for the last seasonal pollock, Pacific cod, shallow-water 2022 seasonal apportionments of trawl apportionment during the current flatfish, flathead sole, Atka mackerel, halibut PSC limits between the trawl fishing year to no more than 55 percent skates, and ‘‘other species’’ (sharks and gear deep-water and the shallow-water of the unused annual halibut PSC limit octopuses) (§ 679.21(d)(3)(iii)). Halibut species fisheries. apportioned to Rockfish Program mortality incurred while directed Table 28d to 50 CFR part 679 specifies participants. The remainder of the fishing for skates with trawl gear the amount of the trawl halibut PSC unused Rockfish Program halibut PSC accrues towards the shallow-water limit that is assigned to the CV and CP limit is unavailable for use by any species fishery halibut PSC limit (69 FR sectors that are participating in the person for the remainder of the fishing 26320, May 12, 2004). Central GOA Rockfish Program. This year (§ 679.21(d)(4)(iii)(C)).

TABLE 10—PROPOSED 2021 AND 2022 APPORTIONMENT OF THE PACIFIC HALIBUT PSC LIMITS BETWEEN THE TRAWL GEAR SHALLOW-WATER AND DEEP-WATER SPECIES FISHERY CATEGORIES [Values are in metric tons]

Season Shallow-water Deep-water 1 Total

January 20–April 1 ...... 384 135 519 April 1–July 1 ...... 85 256 341 July 1–August 1 ...... 121 341 462 August 1–October 1 ...... 53 75 128 Subtotal, January 20–October 1 ...... 643 807 1,450 October 1–December 31 2 ...... 256

Total ...... 1,706 1 Vessels participating in cooperatives in the Rockfish Program will receive 191 mt of the third season (July 1 through August 1) deep-water species fishery halibut PSC apportionment. 2 There is no apportionment between trawl shallow-water and deep-water species fisheries during the fifth season (October 1 through Decem- ber 31).

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Section 679.21(d)(2)(i)(B) requires that and Eastern GOA. Pacific cod is percentages of 86 percent, 2 percent, the ‘‘other hook-and-line fishery’’ apportioned among these three and 12 percent. halibut PSC limit apportionment to management areas based on the For 2021 and 2022, NMFS proposes vessels using hook-and-line gear must percentage of overall biomass per area, annual halibut PSC limits of 144 mt and be apportioned between CVs and CPs in as calculated in the 2019 Pacific cod 113 mt to the hook-and-line CV and accordance with § 679.21(d)(2)(iii) in stock assessment. Updated information hook-and-line CP sectors, respectively. conjunction with these harvest in the final 2019 SAFE report describes Table 11 lists the proposed 2021 and specifications. A comprehensive this distributional calculation, which 2022 apportionments of halibut PSC description and example of the allocates ABC among GOA regulatory limits between the hook-and-line CV calculations necessary to apportion the areas on the basis of the three most and the hook-and-line CP sectors of the ‘‘other hook-and-line fishery’’ halibut recent stock surveys. For 2021 and 2022, ‘‘other hook-and-line fishery.’’ PSC limit between the hook-and-line CV the distribution of the total GOA Pacific No later than November 1 of each and CP sectors were included in the cod ABC is 32 percent to the Western year, NMFS will calculate the projected proposed rule to implement GOA, 59 percent to the Central GOA, unused amount of halibut PSC limit by Amendment 83 to the FMP (76 FR and 9 percent to the Eastern GOA. either of the CV or CP hook-and-line 44700, July 26, 2011) and are not Therefore, the calculations made in sectors of the ‘‘other hook-and-line repeated here. accordance with § 679.21(d)(2)(iii) fishery’’ for the remainder of the year. Pursuant to § 679.21(d)(2)(iii), the incorporate the most recent information The projected unused amount of halibut hook-and-line halibut PSC limit for the on GOA Pacific cod distribution with PSC limit is made available to the other ‘‘other hook-and-line fishery’’ is respect to establishing the annual hook-and-line sector for the remainder apportioned between the CV and CP halibut PSC limits for the CV and CP of that fishing year sectors in proportion to the total hook-and-line sectors. Additionally, the (§ 679.21(d)(2)(iii)(C)), if NMFS Western and Central GOA Pacific cod annual halibut PSC limits for both the determines that an additional amount of allocations, which vary annually based CV and CP sectors of the ‘‘other hook- halibut PSC is necessary for that sector on the proportion of the Pacific cod and-line fishery’’ are divided into three to continue its directed fishing biomass between the Western, Central, seasonal apportionments, using seasonal operations.

TABLE 11—PROPOSED 2021 AND 2022 APPORTIONMENTS OF THE ‘‘OTHER HOOK-AND-LINE FISHERIES’’ ANNUAL HALIBUT PSC ALLOWANCE BETWEEN THE HOOK-AND-LINE GEAR CATCHER VESSEL AND CATCHER/PROCESSOR SECTORS [Values are in metric tons]

Sector ‘‘Other than DSR’’ allowance Hook-and-line sector Sector annual Season Seasonal seasonal amount percentage amount

257 ...... Catcher Vessel ...... 144 January 1–June 10 ...... 86 124 June 10–September 1 ...... 2 3 September 1–December 31 12 17 Catcher/Processor ...... 113 January 1–June 10 ...... 86 97 June 10–September 1 ...... 2 2 September 1–December 31 12 14

Halibut Discard Mortality Rates the annual GOA groundfish SAFE data used for calculating the DMRs). To monitor halibut bycatch mortality report. Future DMRs may change based on allowances and apportionments, the In 2016, the DMR estimation additional years of observer sampling, Regional Administrator uses observed methodology underwent revisions per which could provide more recent and halibut incidental catch rates, halibut the Council’s directive. An interagency accurate data and which could improve discard mortality rates (DMRs), and halibut working group (IPHC, Council, the accuracy of estimation and progress estimates of groundfish catch to project and NMFS staff) developed improved on methodology. The methodology will when a fishery’s halibut bycatch estimation methods that have continue to ensure that NMFS is using mortality allowance or seasonal undergone review by the Plan Team, the DMRs that more accurately reflect apportionment is reached. Halibut SSC, and the Council. A summary of the halibut mortality, which will inform the incidental catch rates are based on revised methodology is contained in the different sectors of their estimated observers’ estimates of halibut GOA proposed 2017 and 2018 harvest halibut mortality and allow specific incidental catch in the groundfish specifications (81 FR 87881, December sectors to respond with methods that fishery. DMRs are estimates of the 6, 2016), and the comprehensive could reduce mortality and, eventually, proportion of incidentally caught discussion of the working group’s the DMR for that sector. halibut that do not survive after being statistical methodology is available from In October 2020, the Council returned to the sea. The cumulative the Council (see ADDRESSES). The DMR recommended halibut DMRs derived halibut mortality that accrues to a working group’s revised methodology is from the revised methodology for the particular halibut PSC limit is the intended to improve estimation proposed 2021 and 2022 DMRs. The product of a DMR multiplied by the accuracy, transparency, and proposed 2021 and 2022 DMRs use an estimated halibut PSC. DMRs are transferability for calculating DMRs. updated two-year reference period. estimated using the best scientific The working group will continue to Comparing the proposed 2021 and 2022 information available in conjunction consider improvements to the DMRs to the final DMRs from the final with the annual GOA stock assessment methodology used to calculate halibut 2020 and 2021 harvest specifications, process. The DMR methodology and mortality, including potential changes the proposed DMR for Rockfish Program findings are included as an appendix to to the reference period (the period of CVs using non-pelagic trawl gear

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increased to 60 percent from 52 percent, motherships using non-pelagic trawl proposed DMR for CPs and CVs using the proposed DMR for non-Rockfish gear increased to 84 percent from 75 pot gear increased to 10 percent from 0 Program C/Vs using non-pelagic trawl percent, the proposed DMR for CPs percent. Table 12 lists the proposed gear increased to 69 percent from 68 using hook-and-line gear increased to 15 2021 and 2022 DMRs. percent, the proposed DMR for CPs and percent from 11 percent, and the

TABLE 12—PROPOSED 2021 AND 2022 DISCARD MORTALITY RATES FOR VESSELS FISHING IN THE GULF OF ALASKA [Values are percent of halibut assumed to be dead]

Halibut discard Gear Sector Groundfish fishery mortality rate (percent)

Pelagic trawl ...... Catcher vessel ...... All ...... 100 Catcher/processor ...... All ...... 100 Non-pelagic trawl ...... Catcher vessel ...... Rockfish Program ...... 60 Catcher vessel ...... All others ...... 69 Mothership and catcher/processor ...... All ...... 84 Hook-and-line ...... Catcher/processor ...... All ...... 15 Catcher vessel ...... All ...... 13 Pot ...... Catcher vessel and catcher/processor ...... All ...... 10

Chinook Salmon Prohibited Species Chinook salmon PSC to a certain designated on a listed AFA CP permit Catch Limits threshold amount in 2020 (3,120 for from processing any pollock harvested trawl CPs and 2,340 for non-Rockfish in a directed pollock fishery in the GOA Section 679.21(h)(2) establishes Program trawl CVs), that sector will and any groundfish harvested in separate Chinook salmon PSC limits in receive an increase to its 2021 Chinook Statistical Area 630 of the GOA. the Western and Central regulatory areas salmon PSC limit (4,080 for trawl CPs of the GOA in the trawl pollock directed AFA CVs that are less than 125 feet and 3,060 for non-Rockfish Program fishery. These limits require that NMFS (38.1 meters) length overall, have trawl CVs) (§ 679.21(h)(4)). NMFS will close directed fishing for pollock in the annual landings of pollock in the Bering evaluate the annual Chinook salmon Western and Central GOA if the Sea and Aleutian Islands of less than PSC by trawl CPs and non-Rockfish applicable Chinook salmon PSC limit is 5,100 mt, and have made at least 40 Program trawl CVs when the 2020 reached (§ 679.21(h)(8)). The annual landings of GOA groundfish from 1995 fishing year is complete to determine Chinook salmon PSC limits in the trawl through 1997 are exempt from GOA CV whether to increase the Chinook salmon pollock directed fishery of 6,684 salmon groundfish sideboard limits under PSC limits for these two sectors. Based in the Western GOA and 18,316 salmon § 679.64(b)(2)(ii). Sideboard limits for on preliminary 2020 Chinook salmon in the Central GOA are set in non-exempt AFA CVs in the GOA are PSC data, the trawl CP sector may § 679.21(h)(2)(i) and (ii). based on their traditional harvest levels receive an incremental increase of Section 679.21(h)(3) established an of TAC in groundfish fisheries covered Chinook salmon PSC limit in 2021, and initial annual PSC limit of 7,500 by the FMP. Section 679.64(b)(3)(iv) the non-Rockfish Program trawl CV Chinook salmon for the non-pollock establishes the CV groundfish sideboard sector may receive an incremental groundfish trawl fisheries in the limits in the GOA based on the increase of Chinook salmon PSC limit in Western and Central GOA. This limit is aggregate retained catch by non-exempt 2021. This evaluation will be completed apportioned among three sectors AFA CVs of each sideboard species from in conjunction with the final 2021 and directed fishing for groundfish species 1995 through 1997 divided by the TAC 2022 harvest specifications. other than pollock: 3,600 Chinook for that species over the same period. salmon to trawl CPs; 1,200 Chinook American Fisheries Act (AFA) Catcher/ NMFS published a final rule (84 FR salmon to trawl CVs participating in the Processor and Catcher Vessel 2723, February 8, 2019) that Rockfish Program; and 2,700 Chinook Groundfish Harvest and PSC Limits implemented regulations to prohibit salmon to trawl CVs not participating in non-exempt AFA CVs from directed Section 679.64 establishes groundfish fishing for specific groundfish species or the Rockfish Program (§ 679.21(h)(4)). harvesting and processing sideboard NMFS will monitor the Chinook salmon species groups subject to sideboard limits on AFA CPs and CVs in the GOA. limits (§ 679.20(d)(1)(iv)(D) and Table PSC in the trawl non-pollock GOA These sideboard limits are necessary to groundfish fisheries and close an 56 to 50 CFR part 679). Sideboard limits protect the interests of fishermen and not subject to the final rule continue to applicable sector if it reaches its processors who do not directly benefit Chinook salmon PSC limit. be calculated and included in the GOA from the AFA from those fishermen and annual harvest specifications. The Chinook salmon PSC limit for processors who receive exclusive two sectors, trawl CPs and trawl CVs not harvesting and processing privileges Table 13 lists the proposed 2021 and participating in the Rockfish Program, under the AFA. Section 679.7(k)(1)(ii) 2022 groundfish sideboard limits for may be increased in subsequent years prohibits listed AFA CPs and CPs non-exempt AFA CVs. NMFS will based on the performance of these two designated on a listed AFA CP permit deduct all targeted or incidental catch of sectors and their ability to minimize from harvesting any species of fish in sideboard species made by non-exempt their use of their respective Chinook the GOA. Additionally, § 679.7(k)(1)(iv) AFA CVs from the sideboard limits salmon PSC limits. If either or both of prohibits listed AFA CPs and CPs listed in Table 13. these two sectors limit its use of

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TABLE 13—PROPOSED 2021 AND 2022 GOA NON-EXEMPT AMERICAN FISHERIES ACT CATCHER VESSEL (CV) GROUNDFISH SIDEBOARD LIMITS [Values are rounded to the nearest metric ton]

Ratio of 1995– Proposed 1997 non-ex- Proposed 2021 and Species Apportionments by season/gear Area/component empt AFA CV 2021 and 2022 non-ex- catch to 1995– 2022 TACs 3 empt AFA CV 1997 TAC sideboard limit

Pollock ...... A Season; January 20–May 31 ...... Shumagin (610) ...... 0.6047 1,067 645 Chirikof (620) ...... 0.1167 42,260 4,932 Kodiak (630) ...... 0.2028 8,354 1,694 B Season; September 1–November 1 ...... Shumagin (610) ...... 0.6047 18,708 11,313 Chirikof (620) ...... 0.1167 13,899 1,622 Kodiak (630) ...... 0.2028 19,074 3,868 Annual ...... WYK (640) ...... 0.3495 5,728 2,002 SEO (650) ...... 0.3495 10,148 3,547 Pacific cod ...... A Season 1; January 1–June 10 ...... W ...... 0.1331 1,323 176 C ...... 0.0692 2,440 169 B Season 2; September 1–December 31 ..... W ...... 0.1331 753 100 C ...... 0.0692 1,366 95 Flatfish, shallow-water Annual ...... W ...... 0.0156 13,250 207 C ...... 0.0587 28,205 1,656 Flatfish, deep-water ... Annual ...... C ...... 0.0647 1,914 124 E ...... 0.0128 3,787 48 Rex sole ...... Annual ...... C ...... 0.0384 8,912 342 Arrowtooth flounder ... Annual ...... C ...... 0.0280 66,683 1,867 Flathead sole ...... Annual ...... C ...... 0.0213 15,400 328 Pacific ocean perch ... Annual ...... C ...... 0.0748 22,727 1,700 E ...... 0.0466 5,877 274 Northern rockfish ...... Annual ...... C ...... 0.0277 3,027 84 1 The Pacific cod A season for trawl gear does not open until January 20. 2 The Pacific cod B season for trawl gear closes November 1. 3 The Western and Central GOA and WYK District area apportionments of pollock are considered ACLs.

Non-Exempt AFA Catcher Vessel based on the aggregate retained fishery from 1995 through 1997 Halibut PSC Limits groundfish catch by non-exempt AFA (§ 679.64(b)(4)(ii)). Table 14 lists the CVs in each PSC target category from proposed 2021 and 2022 non-exempt The halibut PSC sideboard limits for 1995 through 1997 divided by the AFA CV halibut PSC limits for vessels non-exempt AFA CVs in the GOA are retained catch of all vessels in that using trawl gear in the GOA.

TABLE 14—PROPOSED 2021 AND 2022 NON-EXEMPT AFA CV HALIBUT PSC SIDEBOARD LIMITS FOR VESSELS USING TRAWL GEAR IN THE GOA [PSC limits are rounded to the nearest metric ton]

Ratio of 1995– 1997 non- Proposed Fishery exempt AFA Proposed 2021 and Season Season dates category CV retained 2021 and 2022 non- catch to total 2022 PSC limit exempt AFA retained catch CV PSC limit

1 ...... January 20–April 1 ...... shallow-water ...... 0.340 384 131 deep-water ...... 0.070 135 9 2 ...... April 1–July 1 ...... shallow-water ...... 0.340 85 29 deep-water ...... 0.070 256 18 3 ...... July 1–August 1 ...... shallow-water ...... 0.340 121 41 deep-water ...... 0.070 341 24 4 ...... August 1–October 1 ...... shallow-water ...... 0.340 53 18 deep-water ...... 0.070 75 5 5 ...... October 1–December 31 ...... all targets ...... 0.205 256 52

Annual Total shallow-water ...... 219

...... Total deep-water ...... 56

...... Grand Total, all seasons and categories 1,706 328

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Non-AFA Crab Vessel Groundfish that LLP license is used on another vessels from directed fishing for all Harvest Limitations vessel. groundfish species or species groups The basis for these sideboard harvest subject to sideboard limits, except for Section 680.22 establishes groundfish limits is described in detail in the final Pacific cod apportioned to CVs using sideboard limits for vessels with a rules implementing the major pot gear in the Western and Central history of participation in the Bering provisions of the CR Program, including Regulatory Areas (§ 680.22(e)(1)(iii)). Sea snow crab fishery to prevent these Amendments 18 and 19 to the Fishery Accordingly, the GOA annual harvest vessels from using the increased Management Plan for Bering Sea/ specifications will include only the non- flexibility provided by the Crab Aleutian Islands King and Tanner Crabs AFA crab vessel groundfish sideboard Rationalization (CR) Program to expand (Crab FMP) (70 FR 10174, March 2, limits for Pacific cod apportioned to their level of participation in the GOA 2005), Amendment 34 to the Crab FMP CVs using pot gear in the Western and groundfish fisheries. Sideboard harvest (76 FR 35772, June 20, 2011), Central Regulatory Areas. limits restrict these vessels’ catch to Amendment 83 to the GOA FMP (76 FR Table 15 lists the proposed 2021 and their collective historical landings in 74670, December 1, 2011), and 2022 groundfish sideboard limits for each GOA groundfish fishery (except Amendment 45 to the Crab FMP (80 FR non-AFA crab vessel. All targeted or the fixed-gear sablefish fishery). 28539, May 19, 2015). Also, NMFS incidental catch of sideboard species Sideboard limits also apply to landings published a final rule (84 FR 2723, made by non-AFA crab vessels or made using an LLP license derived from February 8, 2019) that implemented associated LLP licenses will be the history of a restricted vessel, even if regulations to prohibit non-AFA crab deducted from these sideboard limits.

TABLE 15—PROPOSED 2021 AND 2022 GOA NON-AMERICAN FISHERIES ACT CRAB VESSEL GROUNDFISH SIDEBOARD LIMITS [Values are rounded to the nearest metric ton]

Ratio of 1996– 2000 non-AFA Proposed Area/component/ crab vessel Proposed 2021 and Species Season/gear gear catch to 1996– 2021 and 2022 non-AFA 2000 total 2022 TACs crab vessel harvest sideboard limit

Pacific cod ...... A Season; January 1–June Western Pot CV ...... 0.0997 1,323 132 10. Central Pot CV ...... 0.0474 2,440 116 B Season; September 1–De- Western Pot CV ...... 0.0997 753 75 cember 31. Central Pot CV ...... 0.0474 1,366 65

Rockfish Program Groundfish Sideboard Western GOA and West Yakutat District Rockfish Program cooperative will be and Halibut PSC Limitations from July 1 through July 31. Also, CVs able to access that portion of each may not participate in directed fishing rockfish sideboard limits that is not The Rockfish Program establishes for arrowtooth flounder, deep-water assigned to Rockfish Program three classes of sideboard provisions: flatfish, and rex sole in the GOA from cooperatives (§ 679.82(e)(7)). The CV groundfish sideboard restrictions, July 1 through July 31 (§ 679.82(d)). sideboard ratio for each rockfish fishery CP rockfish sideboard restrictions, and CPs participating in Rockfish Program in the Western GOA and West Yakutat CP opt-out vessel sideboard restrictions cooperatives are restricted by rockfish District is set forth in § 679.82(e)(4). (§ 679.82(c)(1)). These sideboards are and halibut PSC sideboard limits. These Table 16 lists the proposed 2021 and intended to limit the ability of rockfish CPs are prohibited from directed fishing 2022 Rockfish Program CP rockfish harvesters to expand into other for dusky rockfish, Pacific ocean perch, sideboard limits in the Western GOA fisheries. and northern rockfish in the Western and West Yakutat District. Due to CVs participating in the Rockfish GOA and West Yakutat District from confidentiality requirements associated Program may not participate in directed July 1 through July 31 (§ 679.82(e)(2)). with fisheries data, the sideboard limits fishing for dusky rockfish, Pacific ocean Holders of CP-designated LLP licenses for the West Yakutat District are not perch, and northern rockfish in the that opt out of participating in a displayed.

TABLE 16—PROPOSED 2021 AND 2022 ROCKFISH PROGRAM SIDEBOARD LIMITS FOR THE WESTERN GOA AND WEST YAKUTAT DISTRICT BY FISHERY FOR THE CATCHER/PROCESSOR (CP) SECTOR [Values are rounded to the nearest metric ton]

Proposed Area Fishery CP sector 2021 and Proposed 2021 and 2022 CP (% of TAC) 2022 TACs sideboard limit

Western GOA ...... Dusky rockfish ...... 72.3 ...... 759 549 Pacific ocean perch ...... 50.6 ...... 1,379 698 Northern rockfish ...... 74.3 ...... 1,079 802 West Yakutat District ...... Dusky rockfish ...... Confidential 1 ...... 113 Confidential 1 Pacific ocean perch ...... Confidential 1 ...... 1,410 Confidential 1 1 Not released due to confidentiality requirements associated with fish ticket data, as established by NMFS and the State of Alaska.

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Under the Rockfish Program, the CP able to access that portion of the deep- used to calculate opt-out sideboard sector is subject to halibut PSC water and shallow-water halibut PSC ratios. NMFS will then calculate any sideboard limits for the trawl deep- sideboard limit not assigned to CP applicable opt-out sideboard limits for water and shallow-water species rockfish cooperatives. The sideboard 2021 and post these limits on the Alaska fisheries from July 1 through July 31 provisions for CPs that elect to opt out Region website at https:// (§ 679.82(e)(3) and (e)(5)). Halibut PSC of participating in a rockfish cooperative www.fisheries.noaa.gov/alaska/ sideboard ratios by fishery are set forth are described in § 679.82(c), (e), and (f). sustainable-fisheries/alaska-fisheries- in § 679.82(e)(5). No halibut PSC Sideboard limits are linked to the catch management-reports#central-goa- sideboard limits apply to the CV sector, history of specific vessels that may rockfish. Table 17 lists the proposed as vessels participating in a rockfish choose to opt out. After March 1, NMFS 2021 and 2022 Rockfish Program halibut cooperative receive a portion of the will determine which CPs have opted- PSC sideboard limits for the CP sector. annual halibut PSC limit. CPs that opt out of the Rockfish Program in 2021, out of the Rockfish Program would be and will know the ratios and amounts

TABLE 17—PROPOSED 2021 AND 2022 ROCKFISH PROGRAM HALIBUT PSC SIDEBOARD LIMITS FOR THE CATCHER/ PROCESSOR SECTOR [Values are rounded to the nearest metric ton]

Annual Annual Shallow-water Deep-water shallow-water deep-water species fishery species fishery Annual halibut species fishery species fishery Sector halibut PSC halibut PSC PSC limit halibut PSC halibut PSC sideboard ratio sideboard ratio (mt) sideboard limit sideboard limit (percent) (percent) (mt) (mt)

Catcher/processor ...... 0.10 2.50 1,706 2 43

Amendment 80 Program Groundfish 80 Program to expand their harvest Groundfish sideboard limits for and PSC Sideboard Limits efforts in the GOA. Amendment 80 Program vessels Amendment 80 to the Fishery Section 679.92 establishes groundfish operating in the GOA are based on their Management Plan for Groundfish of the harvesting sideboard limits on all average aggregate harvests from 1998 Bering Sea and Aleutian Islands Amendment 80 Program vessels, other through 2004 (72 FR 52668, September Management Area (Amendment 80 than the F/V Golden Fleece, to amounts 14, 2007). Table 18 lists the proposed Program) established a limited access no greater than the limits shown in 2021 and 2022 groundfish sideboard privilege program for the non-AFA trawl Table 37 to 50 CFR part 679. Under limits for Amendment 80 Program CP sector. The Amendment 80 Program § 679.92(d), the F/V Golden Fleece is vessels. NMFS will deduct all targeted established groundfish and halibut PSC prohibited from directed fishing for or incidental catch of sideboard species limits for Amendment 80 Program pollock, Pacific cod, Pacific ocean made by Amendment 80 Program participants to limit the ability of perch, dusky rockfish, and northern vessels from the sideboard limits in participants eligible for the Amendment rockfish in the GOA. Table 18. TABLE 18—PROPOSED 2021 AND 2022 GOA GROUNDFISH SIDEBOARD LIMITS FOR AMENDMENT 80 PROGRAM VESSELS [Values are rounded to the nearest metric ton]

Proposed 2021 and Ratio of Proposed 2022 amendment 80 2021 and Amendment Species Season Area sector vessels 2022 TAC 80 vessel 1998–2004 (mt) sideboard catch to TAC limits (mt)

Pollock ...... A Season; January 20–May 31 ...... Shumagin (610) ...... 0.003 1,067 3 Chirikof (620) ...... 0.002 42,260 85 Kodiak (630) ...... 0.002 8,354 17 B Season; September 1–November 1 ...... Shumagin (610) ...... 0.003 18,708 56 Chirikof (620) ...... 0.002 13,899 28 Kodiak (630) ...... 0.002 19,074 38 Annual ...... WYK (640) ...... 0.002 5,728 11 Pacific cod ...... A Season 1; January 1–June 10 ...... W ...... 0.020 1,323 26 C ...... 0.044 2,440 107 B Season 2; September 1–December 31 .... W ...... 0.020 753 15 C ...... 0.044 1,366 60 Annual ...... WYK ...... 0.034 549 19 Pacific ocean perch ...... Annual ...... W ...... 0.994 1,379 1,371 WYK ...... 0.961 1,410 1,355 Northern rockfish ...... Annual ...... W ...... 1.000 1,079 1,079 Dusky rockfish ...... Annual ...... W ...... 0.764 759 580 WYK ...... 0.896 113 101 1 The Pacific cod A season for trawl gear does not open until January 20. 2 The Pacific cod B season for trawl gear closes November 1.

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The halibut PSC sideboard limits for factors: allocation of halibut PSC incorporate the maximum percentages Amendment 80 Program vessels in the cooperative quota under the Rockfish of the halibut PSC sideboard limits that GOA are based on the historical use of Program and the exemption of the F/V may be used by Amendment 80 Program halibut PSC by Amendment 80 Program Golden Fleece from this restriction vessels as contained in Table 38 to 50 vessels in each PSC target category from (§ 679.92(b)(2)). Table 19 lists the CFR part 679. Any residual amount of 1998 through 2004. These values are proposed 2021 and 2022 halibut PSC a seasonal Amendment 80 halibut PSC slightly lower than the average sideboard limits for Amendment 80 sideboard limit may carry forward to the historical use to accommodate two Program vessels. These tables next season limit (§ 679.92(b)(2)).

TABLE 19—PROPOSED 2021 AND 2022 HALIBUT PSC SIDEBOARD LIMITS FOR AMENDMENT 80 PROGRAM VESSELS IN THE GOA [Values are rounded to the nearest metric ton]

Proposed 2021 and Historic Proposed 2022 Amendment 2021 and Amendment Season Season dates Fishery 80 use of the 2022 annual 80 vessel category annual halibut PSC limit PSC PSC limit (mt) sideboard (ratio) limit (mt)

1 ...... January 20 –April 1 ...... shallow-water ...... 0.0048 1,706 8 deep-water ...... 0.0115 1,706 20 2 ...... April 1–July 1 ...... shallow-water ...... 0.0189 1,706 32 deep-water ...... 0.1072 1,706 183 3 ...... July 1–August 1 ...... shallow-water ...... 0.0146 1,706 25 deep-water ...... 0.0521 1,706 89 4 ...... August 1–October 1 ...... shallow-water ...... 0.0074 1,706 13 deep-water ...... 0.0014 1,706 2 5 ...... October 1–December 31 ...... shallow-water ...... 0.0227 1,706 39 deep-water ...... 0.0371 1,706 63

Annual Total shallow-water ...... 117

Total deep-water ...... 357

Grand Total, all seasons and categories 474

Classification groundfish harvest specifications and rules that may duplicate, overlap, or NMFS has determined that the alternative harvest strategies on conflict with this proposed rule. The proposed harvest specifications are resources in the action area. Based on IRFA also describes significant consistent with the FMP and the analysis in the Final EIS, NMFS alternatives to this proposed rule that preliminarily determined that the concluded that the preferred Alternative would accomplish the stated objectives proposed harvest specifications are (Alternative 2) provides the best balance of the Magnuson-Stevens Act, and any consistent with the Magnuson-Stevens among relevant environmental, social, other applicable statutes, and that Act and other applicable laws, subject to and economic considerations and would minimize any significant further review after public comment. allows for continued management of the economic impact of this proposed rule This action is authorized under 50 groundfish fisheries based on the most on small entities. The description of the CFR 679.20 and is exempt from review recent, best scientific information. proposed action, its purpose, and the under Executive Order 12866. Initial Regulatory Flexibility Analysis legal basis are explained earlier in the NMFS prepared an EIS for the Alaska preamble and are not repeated here. groundfish harvest specifications and This Initial Regulatory Flexibility For RFA purposes only, NMFS has alternative harvest strategies (see Analysis (IRFA) was prepared for this established a small business size ADDRESSES proposed rule, as required by Section ) and made it available to the standard for businesses, including their public on January 12, 2007 (72 FR 603 of the Regulatory Flexibility Act affiliates, whose primary industry is 1512). On February 13, 2007, NMFS (RFA) (5 U.S.C. 603), to describe the commercial fishing (see 50 CFR 200.2). issued the ROD for the Final EIS. A SIR economic impact that this proposed A business primarily engaged in is being prepared for the final 2021 and rule, if adopted, would have on small 2022 harvest specifications to provide a entities. The IRFA describes the action; commercial fishing (NAICS code 11411) subsequent assessment of the action and the reasons why this proposed rule is is classified as a small business if it is to address the need to prepare a proposed; the objectives and legal basis independently owned and operated, is Supplemental EIS (40 CFR 1501.11(b); for this proposed rule; the estimated not dominant in its field of operation § 1502.9(d)(1)). Copies of the Final EIS, number and description of directly (including its affiliates), and has ROD, and annual SIRs for this action are regulated small entities to which this combined annual receipts not in excess available from NMFS (see ADDRESSES). proposed rule would apply; the of $11 million for all its affiliated The Final EIS analyzes the recordkeeping, reporting, and other operations worldwide. A shoreside environmental, social, and economic compliance requirements of this processor primarily involved in seafood consequences of the proposed proposed rule; and the relevant Federal processing (NAICS code 311710) is

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classified as a small business if it is limits for the groundfish fishery of the species and species groups in the GOA, independently owned and operated, is GOA. This action is necessary to the Council recommended, and NMFS not dominant in its field of operation establish harvest limits for groundfish proposes, TACs equal to proposed (including its affiliates), and has during the 2021 and 2022 fishing years ABCs, which is intended to maximize combined annual employment, counting and is taken in accordance with the harvest opportunities in the GOA. all individuals employed on a full-time, FMP prepared by the Council pursuant For some species and species groups, part-time, or other basis, not in excess to the Magnuson-Stevens Act. The however, the Council recommended and of 750 employees for all its affiliated establishment of the proposed harvest operations worldwide. specifications is governed by the NMFS proposes TACs that are less than Council’s harvest strategy to govern the the proposed ABCs, including for Number and Description of Small catch of groundfish in the GOA. This pollock in the W/C/WYK Regulatory Entities Regulated by This Proposed strategy was selected from among five Area, Pacific cod, shallow-water flatfish Rule alternatives, with the preferred in the Western Regulatory Area, The entities directly regulated by the alternative harvest strategy being one in arrowtooth flounder, flathead sole in the groundfish harvest specifications which the TACs fall within the range of Western and Central Regulatory Areas, include: a) entities operating vessels ABCs recommended by the SSC. Under and Atka mackerel. In the GOA, with groundfish Federal fisheries the preferred harvest strategy, TACs are increasing TACs for some species may permits (FFPs) catching FMP groundfish set to a level that falls within the range not result in increased harvest in Federal waters (including those of ABCs recommended by the SSC; the opportunities for those species. This is receiving direction allocations of sum of the TACs must achieve the OY due to a variety of reasons. There may groundfish); b) all entities operating specified in the FMP. While the specific be a lack of commercial or market vessels, regardless of whether they hold numbers that the harvest strategy interest in some species. Additionally, groundfish FFPs, catching FMP produces may vary from year to year, there are fixed, and therefore groundfish in the state-waters parallel the methodology used for the preferred constraining, PSC limits associated with fisheries; and c) all entities operating harvest strategy remains constant. the harvest of the GOA groundfish vessels fishing for halibut inside three The TACs associated with preferred species that can lead to an underharvest miles of the shore (whether or not they harvest strategy are those recommended of flatfish TACs. For this reason, the have FFPs). by the Council in October 2020. OFLs shallow-water flatfish, arrowtooth and ABCs for the species were based on In 2019 (the most recent year of flounder, and flathead sole TACs are set complete data), there were 871 recommendations prepared by the to allow for increased harvest individual CVs and CPs with gross Council’s Plan Team in September 2020, opportunities for these target species revenues less than or equal to $11 and reviewed by the Council’s SSC in while conserving the halibut PSC limit million. This estimate does not account October 2020. The Council based its for corporate affiliations among vessels, TAC recommendations on those of its for use in other fisheries. The Atka and for cooperative affiliations among AP, which were consistent with the mackerel TAC is set to accommodate fishing entities, since some of the SSC’s OFL and ABC recommendations. incidental catch amounts in other fishing vessels operating in the GOA are The 2021 TACs in these proposed 2021 fisheries. Finally, the TACs for two members of AFA inshore pollock and 2022 harvest specifications are species (pollock and Pacific cod) cannot cooperatives, GOA rockfish unchanged from the 2021 TACs in the be set equal to ABC, as the TAC must cooperatives, or BSAI CR Program final 2020 and 2021 harvest be reduced to account for the State’s cooperatives. Vessels that participate in specifications (85 FR 13802; March 10, GHLs in these fisheries. The W/C/WYK these cooperatives are considered to be 2020), and the sum of all TACs remains Regulatory Area pollock TAC and the large entities within the meaning of the within OY for the GOA. GOA Pacific cod TACs are therefore set RFA because the aggregate gross receipts The proposed 2021 and 2022 OFLs to account for the State’s GHLs for the of all participating members exceed the and ABCs are based on the best State water pollock and Pacific cod $11 million threshold. After accounting available biological information, fisheries so that the ABCs are not for membership in these cooperatives, including projected biomass trends, exceeded. The proposed GOA Pacific there are an estimated 812 small CV and information on assumed distribution of cod TACs also include a further 5 small CP entities remaining in the stock biomass, and revised technical reduction implemented in the 2020 and GOA groundfish sector. However, the methods to calculate stock biomass. The 2021 harvest specifications as an estimate of these 817 CVs may be an proposed 2021 and 2022 TACs are based additional conservation measure due to overstatement of the number of small on the best available biological and the stock’s projected 2020 spawning entities. This latter group of vessels had socioeconomic information. The biomass. For most species in the GOA, average gross revenues that varied by proposed 2021 and 2022 OFLs, ABCs, the Council recommended, and NMFS and TACs are consistent with the gear type. Average gross revenues for proposes, that proposed TACs equal hook-and-line CVs, pot gear CVs, trawl biological condition of groundfish proposed ABCs, unless other gear CVs, and hook-and-line CPs are stocks as described in the 2019 SAFE conservation or management reasons estimated to be $350,000, $780,000, $1.6 report, which is the most recent, support proposed TAC amounts less million, and $2.9 million, respectively. completed SAFE report. Under this action, the proposed ABCs than the proposed ABCs. Description of Significant Alternatives reflect harvest amounts that are less Based upon the best available That Minimize Adverse Impacts on than the specified overfishing levels. scientific data, and in consideration of Small Entities The proposed TACs are within the range the Council’s objectives of this action, it The action under consideration is the of proposed ABCs recommended by the appears that there are no significant proposed 2021 and 2022 harvest SSC and do not exceed the biological alternatives to the proposed rule that specifications, apportionments, and limits recommended by the SSC (the have the potential to accomplish the Pacific halibut prohibited species catch ABCs and overfishing levels). For most

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stated objectives of the Magnuson- DEPARTMENT OF COMMERCE individual, or received after the Stevens Act and any other applicable comment period ends. All comments statutes and that have the potential to National Oceanic and Atmospheric received are a part of the public record, minimize any significant adverse Administration and NMFS will post the comments for economic impact of the proposed rule public viewing on www.regulations.gov on small entities. This action is 50 CFR Part 679 without change. All personal identifying economically beneficial to entities [Docket No. 201125–0319; RTID 0648– information (e.g., name, address), operating in the GOA, including small XY116] confidential business information, or entities. The action proposes TACs for otherwise sensitive information Fisheries of the Exclusive Economic commercially-valuable species in the submitted voluntarily by the sender is Zone Off Alaska; Bering Sea and GOA and allows for the continued publicly accessible. NMFS will accept Aleutian Islands; Proposed 2021 and prosecution of the fishery, thereby anonymous comments (enter ‘‘N/A’’ in 2022 Harvest Specifications for the required fields if you wish to remain creating the opportunity for fishery Groundfish anonymous). revenue. After public process during Electronic copies of the Alaska AGENCY: National Marine Fisheries which the Council solicited input from Groundfish Harvest Specifications Final Service (NMFS), National Oceanic and stakeholders, the Council concluded Environmental Impact Statement (Final Atmospheric Administration (NOAA), that the proposed harvest specifications EIS), Record of Decision (ROD) for the Commerce. would best accomplish the stated Final EIS, and the annual objectives articulated in the preamble ACTION: Proposed rule; harvest Supplementary Information Reports for this proposed rule, and in applicable specifications and request for (SIRs) to the Final EIS prepared for this statutes, and would minimize to the comments. action are available from https:// extent practicable adverse economic SUMMARY: NMFS proposes 2021 and www.regulations.gov. An updated 2021 impacts on the universe of directly 2022 harvest specifications, SIR for the final 2021 and 2022 harvest regulated small entities. apportionments, and prohibited species specifications will be available from the This action does not modify catch allowances for the groundfish same source. The final 2019 Stock recordkeeping or reporting fisheries of the Bering Sea and Aleutian Assessment and Fishery Evaluation requirements, or duplicate, overlap, or Islands (BSAI) management area. This (SAFE) report for the groundfish conflict with any Federal rules. action is necessary to establish harvest resources of the BSAI, dated November limits for groundfish during the 2021 2019, is available from the North Pacific This proposed rule contains no and 2022 fishing years and to Fishery Management Council (Council) information collection requirements accomplish the goals and objectives of at 605 West 4th Avenue, Suite 306, under the Paperwork Reduction Act of the Fishery Management Plan for Anchorage, AK 99501–2252, phone 1995. Groundfish of the Bering Sea and 907–271–2809, or from the Council’s Adverse impacts on marine mammals Aleutian Islands Management Area website at https://www.npfmc.org/. The or endangered or threatened species (FMP). The 2021 harvest specifications 2020 SAFE report for the BSAI will be resulting from fishing activities supersede those previously set in the available from the same source. conducted under these harvest final 2020 and 2021 harvest FOR FURTHER INFORMATION CONTACT: specifications are discussed in the Final specifications, and the 2022 harvest Steve Whitney, 907–586–7228. EIS and its accompanying annual SIRs specifications will be superseded in SUPPLEMENTARY INFORMATION: Federal (see ADDRESSES). early 2022 when the final 2022 and regulations at 50 CFR part 679 2023 harvest specifications are implement the FMP and govern the Authority: 16 U.S.C. 773 et seq.; 16 U.S.C. published. The intended effect of this groundfish fisheries in the BSAI. The 1540(f); 16 U.S.C. 1801 et seq.; 16 U.S.C. action is to conserve and manage the Council prepared the FMP, and NMFS 3631 et seq.; Pub. L. 105–277; Pub. L. 106– groundfish resources in the BSAI in approved it, under the Magnuson- 31; Pub. L. 106–554; Pub. L. 108–199; Pub. accordance with the Magnuson-Stevens L. 108–447; Pub. L. 109–241; Pub. L. 109– Stevens Act. General regulations Fishery Conservation and Management 479. governing U.S. fisheries also appear at Act (Magnuson-Stevens Act). 50 CFR part 600. Dated: November 25, 2020. DATES: Comments must be received by The FMP and its implementing Samuel D. Rauch III, January 4, 2021. regulations require that NMFS, after Deputy Assistant Administrator for ADDRESSES: Submit your comments, consultation with the Council, specify Regulatory Programs, National Marine identified by NOAA–NMFS–2020–0141, annually the total allowable catch (TAC) Fisheries Service. by either of the following methods: for each target species category. The [FR Doc. 2020–26592 Filed 12–1–20; 8:45 am] • Federal e-Rulemaking Portal: Go to sum of TACs for all groundfish species BILLING CODE 3510–22–P www.regulations.gov/ in the BSAI must be within the #!docketDetail;D=NOAA-NMFS-2020- optimum yield (OY) range of 1.4 million 0141, click the ‘‘Comment Now!’’ icon, to 2.0 million metric tons (mt) (see complete the required fields, and enter § 679.20(a)(1)(i)(A)). Section 679.20(c)(1) or attach your comments. further requires that NMFS publish • Mail: Submit written comments to proposed harvest specifications in the Glenn Merrill, Assistant Regional Federal Register and solicit public Administrator, Sustainable Fisheries comments on proposed annual TACs Division, Alaska Region NMFS, Attn: and apportionments thereof; prohibited Records Office. Mail comments to P.O. species catch (PSC) allowances; Box 21668, Juneau, AK 99802–1668. prohibited species quota (PSQ) reserves Instructions: NMFS may not consider established by § 679.21; seasonal comments if they are sent by any other allowances of pollock, Pacific cod, and method, to any other address or Atka mackerel TAC; American Fisheries

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Act allocations; Amendment 80 apportionment of sablefish ABC, as well percent of the AI ABC or 15 million allocations; Community Development as TACs and gear allocations between pounds (6,804 mt). In 2020, 90 percent Quota (CDQ) reserve amounts the trawl and fixed gear sectors, of the GHL has been harvested by established by § 679.20(b)(1)(ii); and specified in future BSAI groundfish November 15, 2020, which triggers a 4 acceptable biological catch (ABC) harvest specifications. The Joint BSAI percent increase in the GHL in 2021; surpluses and reserves for CDQ groups and GOA Groundfish Plan Team, however, 39 percent of the proposed and Amendment 80 cooperatives for Scientific and Statistical Committee 2021 and 2022 AI ABC is 8,034 mt, flathead sole, rock sole, and yellowfin (SSC), and Council will review and which exceeds the AI GHL limit of sole. The proposed harvest propose any changes to the sablefish 6,804 mt. The Council and its Plan specifications set forth in Tables 1 ABC apportionment methodology and Team, SSC, and AP recommended that through 15 of this action satisfy these could recommend changes for the final the sum of all State and Federal water requirements. 2021 and 2022 groundfish harvest Pacific cod removals from the AI not Under § 679.20(c)(3), NMFS will specifications. exceed the proposed ABC publish the final 2021 and 2022 harvest State of Alaska Guideline Harvest Levels recommendations for Pacific cod in the specifications after (1) considering AI. Accordingly, the Council comments received within the comment For 2021 and 2022, the Board of recommended, and NMFS proposes, period (see DATES), (2) consulting with Fisheries (BOF) for the State of Alaska that the 2021 and 2022 Pacific cod TACs the Council at its December 2020 (State) established the guideline harvest in the AI account for the State’s GHL of meeting, (3) considering information level (GHL) for vessels using pot gear in 6,804 mt for Pacific cod caught in State presented in the 2021 SIR to the Final State waters in the Bering Sea subarea waters. EIS that assesses the need to prepare a (BS). The 2020 BS GHL was set at 9 Proposed ABC and TAC Harvest Supplemental EIS (see ADDRESSES), and percent of the 2020 BS ABC (85 FR Specifications (4) considering information presented in 13553; March 9, 2020). The State’s pot the final 2020 SAFE reports prepared for gear BS GHL will increase one percent In October 2020, the Council’s SSC, the 2021 and 2022 groundfish fisheries. annually up to 15 percent of the BS its AP, and the Council reviewed the ABC, if at least 90 percent of the GHL most recent biological and harvest Other Actions Affecting or Potentially is harvested by November 15 of the information on the condition of the Affecting the 2021 and 2022 Harvest preceding year. In 2020, 90 percent of BSAI groundfish stocks. The Plan Team Specifications the GHL has been harvested by compiled and presented this November 15, 2020, which triggers a Amendment 121 to the FMP: Reclassify information in the final 2019 SAFE one percent increase in the GHL in 2021 Sculpins as an Ecosystem Component report for the BSAI groundfish fisheries, and results in a 2021 GHL of 10 percent Species dated November 2019 (see ADDRESSES). of the Pacific cod proposed BS ABC. If The final 2020 SAFE report will be On July 10, 2020, NMFS published at least 90 percent of the 2021 BS GHL available from the same source. the final rule to implement Amendment is not harvested by November 15, 2021, 121 to the FMP (85 FR 41427). The final then the 2022 BS GHL will remain at the The proposed 2021 and 2022 harvest rule reclassified sculpins in the FMP as same percent (10 percent) as the 2021 specifications are based on the final an ‘‘Ecosystem Component’’ species, BS GHL. If 90 percent of the 2021 BS 2021 harvest specifications published in which is a category of non-target species GHL is harvested by November 15, March 2020 (85 FR 13553; March 9, that are not in need of conservation and 2021, then the 2022 BS GHL will 2020), which were set after management. Accordingly, NMFS will increase by one percent and the 2022 BS consideration of the most recent 2019 no longer set an Overfishing Level TAC will be set to account for the SAFE report, and are based on the (OFL), ABC, and TAC for sculpins in the increased BS GHL. Also, for 2021 and initial survey data that were presented BSAI groundfish harvest specifications, 2022, the BOF established an additional at the September 2020 Plan Team beginning with these proposed 2021 and GHL for vessels using jig gear in State meeting. The proposed 2021 and 2022 2022 harvest specifications. waters in the BS equal to 45 mt of harvest specifications in this action are Amendment 121 prohibits directed Pacific cod. The Council and its BSAI subject to change in the final harvest fishing for sculpins, while maintaining Groundfish Plan Team (Plan Team), specifications to be published by NMFS recordkeeping and reporting Scientific and Statistical Committee following the Council’s December 2020 requirements for sculpins. Amendment (SSC), and Advisory Panel (AP) meeting. 121 also establishes a maximum recommended that the sum of all State Many of the scheduled 2020 Gulf of retainable amount for sculpins when and Federal water Pacific cod removals Alaska (GOA) and BSAI groundfish and directed fishing for groundfish species from the BS not exceed the proposed ecosystem surveys were cancelled or at 20 percent to discourage targeting ABC recommendations for Pacific cod modified, although some were sculpin species. in the BS. Accordingly, the Council conducted as planned. The Alaska recommended, and NMFS proposes, Fisheries Science Center (AFSC) Potential Revisions to the Sablefish that the 2021 and 2022 Pacific cod TACs implemented a variety of mitigation Apportionment Process in the BS account for the State’s GHLs efforts to partially address the loss of The Alaska-wide sablefish ABC is for Pacific cod caught in State waters. data from cancelled surveys in 2020. apportioned between six areas within For 2021 and 2022, the BOF for the Currently, for 2021 the AFSC plans to the GOA and BSAI (the Bering Sea, State established the GHL in State resume the normal schedule of surveys Aleutian Islands, Western Gulf, Central waters in the Aleutian Islands subarea for the GOA and eastern Bering Sea Gulf, West Yakutat, and East Yakutat/ (AI). The 2020 AI GHL was set at 35 (EBS), including the EBS trawl survey Southeast Areas). Since 2013, a fixed percent of the 2020 AI ABC (85 FR and a northern Bering Sea trawl survey. apportionment methodology has been 13553; March 9, 2020). The AI GHL will The stock assessment process is used to apportion the ABC between increase annually by 4 percent of the AI adaptable to the changes in availability those six areas. However, a new ABC, if 90 percent of the GHL is of survey data, as many surveys only are apportionment methodology is being harvested by November 15 of the conducted periodically, rather than considered that could affect the preceding year, but may not exceed 39 annually, and any changes relevant to

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the stock assessment process will be ABCs exceeding 2 million mt. Since the EAI) blackspotted and rougheye addressed in the final SAFE report. regulations require TACs to be set to an rockfish, BSAI sharks, and BSAI In November 2020, the Plan Team OY between 1.4 and 2 million mt, the octopuses. The sum of the proposed will update the 2019 SAFE report to Council may be required to recommend 2021 and 2022 ABCs for all assessed include new information collected TACs that are lower than the ABCs groundfish is 2,984,164 mt. The sum of during 2020, such as NMFS stock recommended by the Plan Team and the the proposed TACs is 2,000,000 mt. surveys, revised stock assessments, and SSC, if setting all TACs equal to ABCs catch data. The Plan Team will compile would cause the sum of TACs to exceed Specification and Apportionment of this information and present the draft an OY of 2 million mt. Generally, total TAC Amounts 2020 SAFE report at the December 2020 ABCs greatly exceed 2 million mt in The Council recommended proposed Council meeting. At that meeting, the years with a large pollock biomass. For 2021 and 2022 TACs that are equal to SSC and the Council will review the both 2021 and 2022, NMFS anticipates the proposed ABCs for 2021 and 2022 2020 SAFE report, and the Council will that the sum of the final ABCs will BS sablefish, Central AI Atka mackerel, approve the 2020 SAFE report. The exceed 2 million mt. NMFS expects that BS and Eastern AI Atka mackerel, BS Council will consider information in the the final TACs for the BSAI for both Pacific ocean perch, Central AI Pacific 2020 SAFE report, recommendations 2021 and 2022 will equal 2 million mt ocean perch, Eastern AI Pacific ocean from the November 2020 Plan Team each year. perch, Central AI and Western AI meeting and December 2020 SSC and The proposed 2021 and 2022 OFLs blackspotted and rougheye rockfish, and AP meetings, public testimony, and and ABCs are based on the best AI ‘‘other rockfish.’’ The Council relevant written comments in making its available biological and scientific recommended proposed TACs less than recommendations for the final 2021 and information, including projected the respective proposed ABCs for all 2022 harvest specifications. biomass trends, information on assumed other species. Section distribution of stock biomass, and Potential Changes Between Proposed 679.20(a)(5)(iii)(B)(1) requires the AI revised technical methods used to and Final Specifications pollock TAC to be set at 19,000 mt when calculate stock biomass. The FMP the AI pollock ABC equals or exceeds In previous years, the most significant specifies a series of six tiers to define 19,000 mt. The Bogoslof pollock TAC is changes (relative to the amount of OFLs and ABCs based on the level of set to accommodate incidental catch assessed tonnage of fish) to the OFLs reliable information available to fishery amounts. TACs are set so that the sum and ABCs from the proposed to the final scientists. Tier 1 represents the highest of the overall TAC does not exceed the harvest specifications have been based level of information quality available, BSAI OY. on the most recent NMFS stock surveys. while Tier 6 represents the lowest. The These surveys provide updated proposed 2021 and 2022 TACs are based The proposed groundfish OFLs, estimates of stock biomass and spatial on the best available biological and ABCs, and TACs are subject to change distribution, and inform changes to the socioeconomic information. pending the completion of the final models or the models’ results used for In October 2020, the SSC adopted the 2020 SAFE report and the Council’s producing stock assessments. Any proposed 2021 and 2022 OFLs and recommendations for the final 2021 and changes to models used in stock ABCs recommended by the Plan Team 2022 harvest specifications during its assessments will be recommended by for all groundfish. The Council adopted December 2020 meeting. These the Plan Team in November 2020 and the SSC’s OFL and ABC proposed amounts are consistent with then included in the final 2020 SAFE recommendations. The OFL and ABC the biological condition of groundfish report. Model changes can result in amounts are, for the most part, stocks as described in the 2019 SAFE changes to final OFLs, ABCs, and TACs. unchanged from the final 2021 harvest report. The proposed ABCs reflect The final 2020 SAFE report will include specifications published in the Federal harvest amounts that are less than the the most recent information, such as Register on March 9, 2020 (85 FR specified overfishing levels. The catch data. 13553). However, the OFL and ABC for proposed TACs have been adjusted for The final harvest specification rock sole was increased because a data other biological information and amounts for these stocks are not file error was discovered in the 2019 socioeconomic considerations, expected to vary greatly from these stock assessment. Also, sculpins have including maintaining the entire TAC proposed harvest specification amounts. been reclassified in the FMP as an within the required OY range. Pursuant If the 2020 SAFE report indicates that ‘‘Ecosystem Component’’ species, which to Section 3.2.3.4.1 of the FMP, the the stock biomass trend is increasing for is a category of non-target species that Council could recommend adjusting the a species, then the final 2021 and 2022 are not in need of conservation and final TACs if ‘‘warranted on the basis of harvest specifications may reflect an management (85 FR 41427; July 10, bycatch considerations, management increase from the proposed harvest 2020). Therefore, starting with these uncertainty, or socioeconomic specifications. Conversely, if the 2020 proposed harvest specifications, the considerations; or if required in order to SAFE report indicates that the stock OFL, ABC, and TAC for sculpins will no cause the sum of the TACs to fall within biomass trend is decreasing for a longer be set in the BSAI harvest the OY range.’’ Table 1 lists the species, then the final 2021 and 2022 specifications. The 5,000 mt that had proposed 2021 and 2022 OFL, ABC, harvest specifications may reflect a been specified for the 2021 sculpin TAC TAC, initial TAC (ITAC), and CDQ decrease from the proposed harvest has been distributed among AI amounts for groundfish for the BSAI. specifications. In addition to changes Greenland turbot, BSAI Kamchatka The proposed apportionment of TAC driven by biomass trends, there may be flounder, BSAI Alaska plaice, Bering amounts among fisheries and seasons is changes in TACs due to the sum of Sea and Eastern Aleutian Islands (BS/ discussed below.

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TABLE 1—PROPOSED 2021 AND 2022 OVERFISHING LEVEL (OFL), ACCEPTABLE BIOLOGICAL CATCH (ABC), TOTAL ALLOWABLE CATCH (TAC), INITIAL TAC (ITAC), AND CDQ RESERVE ALLOCATION OF GROUNDFISH IN THE BSAI 1 [Amounts are in metric tons]

Proposed 2021 and 2022 Species Area OFL ABC TAC ITAC 2 CDQ 34

Pollock 4 ...... BS ...... 3,385,000 1,767,000 1,450,000 1,305,000 145,000 AI ...... 70,970 58,384 19,000 17,100 1,900 Bogoslof ...... 183,080 137,310 75 75 ...... Pacific cod 5 ...... BS ...... 125,734 102,975 92,633 82,721 9,912 AI ...... 27,400 20,600 13,796 12,320 1,476 Sablefish ...... Alaska-wide ...... 64,765 n/a n/a n/a n/a BS ...... n/a 2,865 2,865 1,218 107 AI ...... n/a 3,891 2,500 531 47 Yellowfin sole ...... BSAI ...... 287,943 261,497 168,900 150,828 18,072 Greenland turbot ...... BSAI ...... 10,006 8,510 5,795 4,926 n/a BS ...... n/a 7,429 5,125 4,356 548 AI ...... n/a 1,081 670 570 ...... Arrowtooth flounder...... BSAI ...... 86,647 73,804 10,000 8,500 1,070 Kamchatka flounder ...... BSAI ...... 11,472 9,688 7,116 6,049 ...... Rock sole 6 ...... BSAI ...... 251,800 245,400 49,000 43,757 5,243 Flathead sole 7 ...... BSAI ...... 86,432 71,079 24,000 21,432 2,568 Alaska plaice...... BSAI ...... 36,500 30,700 24,000 20,400 ...... Other flatfish 8 ...... BSAI ...... 21,824 16,368 5,000 4,250 ...... Pacific Ocean perch ...... BSAI ...... 56,589 46,885 42,036 36,953 n/a BS ...... n/a 13,600 13,600 11,560 ...... EAI ...... n/a 10,619 10,619 9,483 1,136 CAI ...... n/a 7,817 7,817 6,981 836 WAI ...... n/a 14,849 10,000 8,930 1,070 Northern rockfish ...... BSAI ...... 19,070 15,683 10,000 8,500 ...... Blackspotted/ BSAI ...... 1,090 899 439 373 ...... Rougheyerockfish 10. BS/EAI ...... n/a 560 100 85 ...... CAI/WAI ...... n/a 339 339 288 ...... Shortraker rockfish ...... BSAI ...... 722 541 375 319 ...... Other rockfish 10 ...... BSAI ...... 1,793 1,344 1,088 925 ...... BS ...... n/a 956 700 595 ...... AI ...... n/a 388 388 330 ...... Atka mackerel ...... BSAI ...... 74,800 64,400 54,482 48,652 5,830 EAI/BS ...... n/a 22,540 22,540 20,128 2,412 CAI ...... n/a 13,524 13,524 12,077 1,447 WAI ...... n/a 28,336 18,418 16,447 1,971 Skates ...... BSAI ...... 48,289 40,248 16,000 13,600 ...... Sharks ...... BSAI ...... 689 517 200 170 ...... Octopuses ...... BSAI ...... 4,769 3,576 700 595 ......

Total ...... 4,857,384 2,984,164 2,000,000 1,789,193 194,816 1 These amounts apply to the entire BSAI management area unless otherwise specified. With the exception of pollock, and for the purpose of these harvest specifications, the Bering Sea subarea (BS) includes the Bogoslof District. 2 Except for pollock, the portion of the sablefish TAC allocated to hook-and-line and pot gear, and the Amendment 80 species (Atka mackerel, flathead sole, rock sole, yellowfin sole, Pacific cod, and Aleutian Islands Pacific ocean perch), 15 percent of each TAC is put into a non-specified reserve. The ITAC for these species is the remainder of the TAC after the subtraction of these reserves. For pollock and Amendment 80 species, ITAC is the non-CDQ allocation of TAC (see footnote 3 and 4). 3 For the Amendment 80 species (Atka mackerel, flathead sole, rock sole, yellowfin sole, Pacific cod, and Aleutian Islands Pacific ocean perch), 10.7 percent of the TAC is reserved for use by CDQ participants (see §§ 679.20(b)(1)(ii)(C) and 679.31). Twenty percent of the sablefish TAC allocated to hook-and-line gear or pot gear, 7.5 percent of the sablefish TAC allocated to trawl gear, and 10.7 percent of the TACs for Ber- ing Sea Greenland turbot and BSAI arrowtooth flounder are reserved for use by CDQ participants (see § 679.20(b)(1)(ii)(B) and (D)). The 2021 hook-and-line or pot gear portion of the sablefish ITAC and CDQ reserve will not be specified until the final 2021 and 2022 harvest specifica- tions. Aleutian Islands Greenland turbot, ‘‘other flatfish,’’ Alaska plaice, Bering Sea Pacific ocean perch, Kamchatka flounder, northern rockfish, shortraker rockfish, blackspotted and rougheye rockfish, ‘‘other rockfish,’’ skates, sharks, and octopuses are not allocated to the CDQ Program. 4 Under § 679.20(a)(5)(i)(A), the annual BS pollock TAC, after subtracting first for the CDQ directed fishing allowance (10 percent) and second for the incidental catch allowance (3.9 percent), is further allocated by sector for a pollock directed fishery as follows: inshore–50 percent; catch- er/processor–40 percent; and motherships–10 percent. Under § 679.20(a)(5)(iii)(B)(2), the annual AI pollock TAC, after subtracting first for the CDQ directed fishing allowance (10 percent) and second for the incidental catch allowance (2,400 mt), is allocated to the Aleut Corporation for a pollock directed fishery. 5 The BS Pacific cod TAC is set to account for the 10 percent, plus 45 mt, of the BS ABC for the State of Alaska’s (State) guideline harvest level in State waters of the BS. The AI Pacific cod TAC is set to account for 39 percent of the AI ABC for the State guideline harvest level in State waters of the AI, unless the State guideline harvest level would exceed 15 million pounds (6,804 mt), in which case the TAC is set to ac- count for the maximum authorized State guideline harvest level of 6,804 mt. 6 ‘‘Rock sole’’ includes Lepidopsetta polyxystra (Northern rock sole) and Lepidopsetta bilineata (Southern rock sole). 7 ‘‘Flathead sole’’ includes Hippoglossoides elassodon (flathead sole) and Hippoglossoides robustus (Bering flounder). 8 ‘‘Other flatfish’’ includes all flatfish species, except for halibut (a prohibited species), Alaska plaice, arrowtooth flounder, flathead sole, Green- land turbot, Kamchatka flounder, rock sole, and yellowfin sole. 9 ‘‘Blackspotted/Rougheye rockfish’’ includes Sebastes melanostictus (blackspotted) and Sebastes aleutianus (rougheye). 10 ‘‘Other rockfish’’ includes all Sebastes and Sebastolobus species except for Pacific ocean perch, dark rockfish, northern rockfish, shortraker rockfish, and blackspotted/rougheye rockfish.

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Note: Regulatory areas and districts are defined at § 679.2 (BSAI = Bering Sea and Aleutian Islands management area, BS = Bering Sea sub- area, AI = Aleutian Islands subarea, EAI = Eastern Aleutian district, CAI = Central Aleutian district, WAI = Western Aleutian district.)

Groundfish Reserves and the Incidental incidental catch, including the (§ 679.20(a)(5)(iii)(B)(3)). Table 2 lists Catch Allowance (ICA) for Pollock, Atka incidental catch by CDQ vessels, in these proposed 2021 and 2022 amounts. Mackerel, Flathead Sole, Rock Sole, target fisheries other than pollock from Section 679.20(a)(5)(iii)(B)(6) sets Yellowfin Sole, and AI Pacific Ocean 2003 through 2020. During this 18-year harvest limits for pollock in the A Perch period, the incidental catch of pollock season (January 20 to June 10) in Areas Section 679.20(b)(1)(i) requires NMFS ranged from a low of 5 percent in 2006 543, 542, and 541. In Area 543, the A to reserve 15 percent of the TAC for to a high of 17 percent in 2014, with an season pollock harvest limit is no more each target species category (except for 18-year average of 8 percent. than 5 percent of the AI pollock ABC. pollock, hook-and-line and pot gear Pursuant to §§ 679.20(a)(8) and (10), In Area 542, the A season pollock allocation of sablefish, and Amendment NMFS proposes ICAs of 3,000 mt of harvest limit is no more than 15 percent 80 species) in a non-specified reserve. flathead sole, 6,000 mt of rock sole, of the AI pollock ABC. In Area 541, the Section 679.20(b)(1)(ii)(B) requires that 4,000 mt of yellowfin sole, 10 mt of A season pollock harvest limit is no NMFS allocate 20 percent of the hook- Western Aleutian District Pacific ocean more than 30 percent of the AI pollock and-line or pot gear allocation of perch, 60 mt of Central Aleutian District ABC. sablefish to the fixed gear sablefish CDQ Pacific ocean perch, 100 mt of Eastern Section 679.20(a)(5)(i)(A)(4) includes reserve for each subarea. Section Aleutian District Pacific ocean perch, 20 several specific requirements regarding 679.20(b)(1)(ii)(D) requires that NMFS mt of Western Aleutian District Atka BS pollock allocations. First, it requires allocate 7.5 percent of the trawl gear mackerel, 75 mt of Central Aleutian that 8.5 percent of the pollock allocated allocation of sablefish and 10.7 percent District Atka mackerel, and 800 mt of to the CP sector be available for harvest of BS Greenland turbot and arrowtooth Eastern Aleutian District and BS Atka by AFA catcher vessels (CVs) with CP flounder TACs to the respective CDQ mackerel, after subtracting the 10.7 sector endorsements, unless the reserves. Section 679.20(b)(1)(ii)(C) percent CDQ reserves. These ICAs are Regional Administrator receives a requires that NMFS allocate 10.7 based on NMFS’s examination of the cooperative contract that allows the percent of the TACs for Atka mackerel, average incidental catch in other target distribution of harvest among AFA CPs AI Pacific ocean perch, yellowfin sole, fisheries from 2003 through 2020. and AFA CVs in a manner agreed to by rock sole, flathead sole, and Pacific cod The remainder of the non-specified all members. Second, AFA CPs not to the respective CDQ reserves. reserve are not designated by species or listed in the AFA are limited to Sections 679.20(a)(5)(i)(A) and species group. Any amount of the harvesting not more than 0.5 percent of 679.31(a) require allocation of 10 reserve may be apportioned to a target the pollock allocated to the CP sector. percent of the BS pollock TAC to the species that contributed to the non- Table 2 lists the proposed 2021 and pollock CDQ directed fishing allowance specified reserve during the year, 2022 allocations of pollock TAC. Tables (DFA). Sections 679.20(a)(5)(iii)(B)(2)(i) provided that such apportionments are 13, 14, and 15 list the AFA CP and CV and 679.31(a) require 10 percent of the consistent with § 679.20(a)(3) and do harvesting sideboard limits. The BS AI pollock TAC be allocated to the not result in overfishing (see inshore pollock cooperative and open pollock CDQ DFA. The entire Bogoslof § 679.20(b)(1)(i)). access sector allocations are based on District pollock TAC is allocated as an the submission of AFA inshore Allocations of Pollock TAC Under the ICA pursuant to § 679.20(a)(5)(ii) cooperative applications due to NMFS American Fisheries Act (AFA) because the Bogoslof District is closed to on December 1 of each calendar year. directed fishing for pollock by Section 679.20(a)(5)(i)(A) requires that Because AFA inshore cooperative regulation (§ 679.22(a)(7)(B)). With the BS pollock TAC be apportioned as a applications for 2021 have not been exception of the hook-and-line or pot DFA, after subtracting 10 percent for the submitted to NMFS, and NMFS gear sablefish CDQ reserve, the CDQ Program and 3.9 percent for the therefore cannot calculate 2021 regulations do not further apportion the ICA, as follows: 50 percent to the allocations, NMFS has not included CDQ reserves by gear. inshore sector, 40 percent to the inshore cooperative tables in these Pursuant to § 679.20(a)(5)(i)(A)(1), catcher/processor (CP) sector, and 10 proposed harvest specifications. NMFS NMFS proposes a pollock ICA of 3.9 percent to the mothership sector. In the will post the 2021 AFA inshore pollock percent or 50,895 mt of the BS pollock BS, 45 percent of the DFA is allocated cooperative and open access sector TAC after subtracting the 10 percent to the A season (January 20 to June 10), allocations on the Alaska Region CDQ DFA. This allowance is based on and 55 percent of the DFA is allocated website at https:// NMFS’s examination of the pollock to the B season (June 10 to November 1) www.fisheries.noaa.gov/alaska/ incidentally retained and discarded (§§ 679.20(a)(5)(i)(B)(1) and sustainable-fisheries/alaska-fisheries- catch, including the incidental catch by 679.23(e)(2)). The AI directed pollock management-reports prior to the start of CDQ vessels, in target fisheries other fishery allocation to the Aleut the fishing year on January 1, 2021, than pollock from 2000 through 2020. Corporation is the amount of pollock based on the harvest specifications During this 21-year period, the pollock TAC remaining in the AI after effective on that date. incidental catch ranged from a low of subtracting 1,900 mt for the CDQ DFA Table 2 also lists proposed seasonal 2.2 percent in 2006 to a high of 4.6 (10 percent), and 2,400 mt for the ICA apportionments of pollock and harvest percent in 2014, with a 21-year average (§ 679.20(a)(5)(iii)(B)(2)). In the AI, the limits within the Steller Sea Lion of 3 percent. Pursuant to total A season apportionment of the Conservation Area (SCA). The harvest of §§ 679.20(a)(5)(iii)(B)(2)(i) and (ii), pollock TAC (including the AI directed pollock within the SCA, as defined at NMFS proposes a pollock ICA of 14 fishery allocation, the CDQ DFA, and § 679.22(a)(7)(vii), is limited to no more percent or 2,400 mt of the AI pollock the ICA) may equal up to 40 percent of than 28 percent of the annual pollock TAC after subtracting the 10 percent the ABC for AI pollock, and the DFA before 12:00 noon, April 1, as CDQ DFA. This allowance is based on remainder of the pollock TAC is provided in § 679.20(a)(5)(i)(C). The A NMFS’s examination of the pollock allocated to the B season season pollock SCA harvest limit will be

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apportioned to each sector in proportion to each sector’s allocated percentage of the DFA.

TABLE 2—PROPOSED 2021 AND 2022 ALLOCATIONS OF POLLOCK TACS TO THE DIRECTED POLLOCK FISHERIES AND TO THE CDQ DIRECTED FISHING ALLOWANCES (DFA) 1 [Amounts are in metric tons]

1 1 2021 and A season B season Area and sector 2022 allocations A season DFA SCA harvest B season DFA limit 2

Bering Sea subarea TAC ...... 1,450,000 n/a n/a n/a CDQ DFA ...... 145,000 65,250 40,600 79,750 ICA 1 ...... 50,895 n/a n/a n/a Total Bering Sea DFA (non-CDQ) ...... 1,254,105 564,347 351,149 689,758 AFA Inshore ...... 627,053 282,174 175,575 344,879 AFA Catcher/Processors 3 ...... 501,642 225,739 140,460 275,903 Catch by CPs ...... 459,002 206,551 n/a 252,451 Catch by CVs 3 ...... 42,640 19,188 n/a 23,452 Unlisted CP Limit 4 ...... 2,508 1,129 n/a 1,380 AFA Motherships ...... 125,411 56,435 35,115 68,976 Excessive Harvesting Limit 5 ...... 219,468 n/a n/a n/a Excessive Processing Limit 6 ...... 376,232 n/a n/a n/a Aleutian Islands subarea ABC ...... 58,384 n/a n/a n/a Aleutian Islands subarea TAC ...... 19,000 n/a n/a n/a CDQ DFA ...... 1,900 760 n/a 1,140 ICA ...... 2,400 1,200 n/a 1,200 Aleut Corporation ...... 14,700 14,700 n/a Area harvest limit 7 ...... n/a n/a n/a n/a 541 ...... 17,515 n/a n/a n/a 542 ...... 8,758 n/a n/a n/a 543 ...... 2,919 n/a n/a n/a Bogoslof District ICA 8 ...... 75 n/a n/a n/a 1 Pursuant to § 679.20(a)(5)(i)(A), the annual Bering Sea subarea pollock TAC, after subtracting the CDQ DFA (10 percent) and the ICA (3.9 percent), is allocated as a DFA as follows: inshore sector–50 percent, catcher/processor sector (CPs)–40 percent, and mothership sector–10 per- cent. In the Bering Sea subarea, 45 percent of the DFA is allocated to the A season (January 20–June 10) and 55 percent of the DFA is allo- cated to the B season (June 10–November 1). Pursuant to § 679.20(a)(5)(iii)(B)(2)(i) through (iii), the annual Aleutian Islands subarea pollock TAC, after subtracting first for the CDQ DFA (10 percent) and second for the ICA (2,400 mt), is allocated to the Aleut Corporation for a directed pollock fishery. In the Aleutian Islands subarea, the A season is allocated up to 40 percent of the AI pollock ABC. 2 In the Bering Sea subarea, pursuant to § 679.20(a)(5)(i)(C), no more than 28 percent of each sector’s annual DFA may be taken from the SCA before noon, April 1. 3 Pursuant to § 679.20(a)(5)(i)(A)(4), 8.5 percent of the DFA allocated to listed CPs shall be available for harvest only by eligible catcher ves- sels with a CP endorsement delivering to listed CPs, unless there is a CP sector cooperative for the year. 4 Pursuant to § 679.20(a)(5)(i)(A)(4)(iii), the AFA unlisted CPs are limited to harvesting not more than 0.5 percent of the C/P sector’s allocation of pollock. 5 Pursuant to § 679.20(a)(5)(i)(A)(6), NMFS establishes an excessive harvesting share limit equal to 17.5 percent of the sum of the non-CDQ pollock DFAs. 6 Pursuant to § 679.20(a)(5)(i)(A)(7), NMFS establishes an excessive processing share limit equal to 30.0 percent of the sum of the non-CDQ pollock DFAs. 7 Pursuant to § 679.20(a)(5)(iii)(B)(6), NMFS establishes harvest limits for pollock in the A season in Area 541 no more than 30 percent, in Area 542 no more than 15 percent, and in Area 543 no more than 5 percent of the Aleutian Islands pollock ABC. 8 Pursuant to § 679.22(a)(7)(B), the Bogoslof District is closed to directed fishing for pollock. The amounts specified are for incidental catch only and are not apportioned by season or sector.

Allocation of the Atka Mackerel TACs based on several criteria, including the fishing. The ICA and jig gear allocations anticipated harvest capacity of the jig are not apportioned by season. Section 679.20(a)(8) allocates the Atka gear fleet. The Council recommended, Sections 679.20(a)(8)(ii)(C)(1)(i) and mackerel TACs to the Amendment 80 and NMFS proposes, a 0.5 percent (ii) limit Atka mackerel catch within and BSAI trawl limited access sectors, allocation of the Atka mackerel TAC in waters 0 nm to 20 nmi of Steller sea lion after subtracting the CDQ reserves, ICAs the Eastern Aleutian District and Bering sites listed in Table 6 to 50 CFR part 679 ° for the BSAI trawl limited access sector Sea subarea to jig gear in 2021 and 2022. and located west of 178 W longitude to and non-trawl gear sectors, and the jig no more than 60 percent of the annual gear allocation (Table 3). The percentage Section 679.20(a)(8)(ii)(A) apportions TACs in Areas 542 and 543, and equally of the ITAC for Atka mackerel allocated the Atka mackerel TAC into two equal divides the annual TAC between the A to the Amendment 80 and BSAI trawl seasonal allowances. Section and B seasons as defined at limited access sectors is listed in Table 679.23(e)(3) sets the first seasonal § 679.23(e)(3). Section 33 to 50 CFR part 679 and in § 679.91. allowance for directed fishing with 679.20(a)(8)(ii)(C)(2) requires that the Pursuant to § 679.20(a)(8)(i), up to 2 trawl gear from January 20 through June annual TAC in Area 543 will be no more percent of the Eastern Aleutian District 10 (A season), and the second seasonal than 65 percent of the ABC in Area 543. and Bering Sea subarea Atka mackerel allowance from June 10 through Section 679.20(a)(8)(ii)(D) requires that TAC may be allocated to vessels using December 31 (B season). Section any unharvested Atka mackerel A jig gear. The percent of this allocation is 679.23(e)(4)(iii) applies Atka mackerel season allowance that is added to the B recommended annually by the Council seasons to trawl CDQ Atka mackerel season be prohibited from being

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harvested within waters 0 nm to 20 nmi allocation to the Amendment 80 limited limited access sector allocations on the of Steller sea lion sites listed in Table access sector is required for 2021. The Alaska Region website at https:// 6 to 50 CFR part 679 and located in 2022 allocations for Atka mackerel www.fisheries.noaa.gov/alaska/ Areas 541, 542, and 543.Table 3 lists the between Amendment 80 cooperatives sustainable-fisheries/sustainable- proposed 2021 and 2022 Atka mackerel and the Amendment 80 limited access fisheries-alaska prior to the start of the season allowances, area allowances, and sector will not be known until eligible fishing year on January 1, 2022, based the sector allocations. One Amendment participants apply for participation in on the harvest specifications effective 80 cooperative has formed for the 2021 the program by November 1, 2021. on that date. fishing year. Because all Amendment 80 NMFS will post the 2022 Amendment vessels are part of the cooperative, no 80 cooperatives and Amendment 80

TABLE 3—PROPOSED 2021 AND 2022 SEASONAL AND SPATIAL ALLOWANCES, GEAR SHARES, CDQ RESERVE, INCIDENTAL CATCH ALLOWANCE (ICA), AND AMENDMENT 80 ALLOCATIONS OF THE BSAI ATKA MACKEREL TAC [Amounts are in metric tons]

2021 and 2022 allocation by area Eastern Sector 1 Season 234 Central Western Aleutian Aleutian Aleutian District/Bering 5 5 Sea District District

TAC ...... n/a ...... 22,540 13,524 18,418 CDQ reserve ...... Total ...... 2,412 1,447 1,971 A ...... 1,206 724 985 Critical habitat 5 ...... n/a 434 591 B ...... 1,206 724 985 Critical habitat 5 ...... n/a 434 591 non-CDQ TAC ...... n/a ...... 20,128 12,077 16,447 ICA ...... Total ...... 800 75 20 Jig 6 ...... Total ...... 97 BSAI trawl limited access ...... Total ...... 1,923 1,200 A ...... 962 600 Critical habitat 5 ...... n/a 360 B ...... 962 600 Critical habitat 5 ...... n/a 360

Amendment 80 ...... Total ...... 17,308 10,802 16,427 A ...... 8,654 5,401 8,214 Critical habitat 5 ...... n/a 3,241 4,928 B ...... 8,654 5,401 8,214 Critical habitat 5 ...... n/a 3,241 4,928 1 Section 679.20(a)(8)(ii) allocates the Atka mackerel TACs, after subtracting the CDQ reserves, ICAs, and the jig gear allocation, to the Amendment 80 and BSAI trawl limited access sectors. The allocation of the ITAC for Atka mackerel to the Amendment 80 and BSAI trawl limited access sectors is established in Table 33 to 50 CFR part 679 and § 679.91. The CDQ reserve is 10.7 percent of the TAC for use by CDQ partici- pants (see §§ 679.20(b)(1)(ii)(C) and 679.31). 2 Sections 679.20(a)(8)(ii)(A) and 679.22(a) establish temporal and spatial limitations for the Atka mackerel fishery. 3 The seasonal allowances of Atka mackerel are 50 percent in the A season and 50 percent in the B season. 4 Section 679.23(e)(3) authorizes directed fishing for Atka mackerel with trawl gear during the A season from January 20 to June 10, and the B season from June 10 to December 31. 5 Section 679.20(a)(8)(ii)(C)(1)(i) limits no more than 60 percent of the annual TACs in Areas 542 and 543 to be caught inside of Steller sea lion critical habitat; § 679.20(a)(8)(ii)(C)(1)(ii) equally divides the annual TACs between the A and B seasons as defined at § 679.23(e)(3); and § 679.20(a)(8)(ii)(C)(2) requires that the TAC in Area 543 shall be no more than 65 percent of ABC in Area 543. 6 Sections 679.2 and 679.20(a)(8)(i) require that up to 2 percent of the Eastern Aleutian District and Bering Sea subarea TAC be allocated to jig gear after subtraction of the CDQ reserve and ICA. The proposed amount of this allocation for 2021 and 2022 is 0.5 percent. The jig gear al- location is not apportioned by season.

Allocation of the Pacific Cod TAC will prohibit directed fishing for non- to 60 ft (18.3 m) LOA, 1.5 percent to pot CDQ Pacific cod in that subarea, as CPs, 2.3 percent to AFA trawl CPs, 13.4 The Council separated BS and AI provided in § 679.20(d)(1)(iii). percent to the Amendment 80 sector, subarea OFLs, ABCs, and TACs for Sections 679.20(a)(7)(i) and (ii) and 22.1 percent to trawl CVs. The BSAI Pacific cod in 2014 (79 FR 12108; March ICA for the hook-and-line and pot 4, 2014). Section 679.20(b)(1)(ii)(C) allocate to the non-CDQ sectors the sectors will be deducted from the allocates 10.7 percent of the BS TAC combined BSAI Pacific cod TAC, after aggregate portion of BSAI Pacific cod and the AI TAC to the CDQ Program. subtracting 10.7 percent for the CDQ TAC allocated to the hook-and-line and After CDQ allocations have been Program, as follows: 1.4 percent to pot sectors. For 2021 and 2022, the deducted from the respective BS and AI vessels using jig gear, 2.0 percent to Pacific cod TACs, the remaining BS and hook-and-line or pot CVs less than 60 ft Regional Administrator proposes a BSAI AI Pacific cod TACs are combined for (18.3 m) length overall (LOA), 0.2 ICA of 400 mt, based on anticipated calculating further BSAI Pacific cod percent to hook-and-line CVs greater incidental catch by these sectors in sector allocations. If the non-CDQ than or equal to 60 ft (18.3 m) LOA, 48.7 other fisheries. Pacific cod TAC is or will be reached in percent to hook-and-line CPs, 8.4 The BSAI ITAC allocation of Pacific either the BS or the AI subareas, NMFS percent to pot CVs greater than or equal cod to the Amendment 80 sector is

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established in Table 33 to 50 CFR part and 679.23(e)(5)). In accordance with Area 543 harvest limit is 2,166 mt. 679 and § 679.91. One Amendment 80 §§ 679.20(a)(7)(iv)(B) and (C), any However, the final Area 543 harvest cooperative has formed for the 2021 unused portion of a Pacific cod seasonal limit could change if the Pacific cod fishing year. Because all Amendment 80 allowance for any sector, except the jig abundance in Area 543 changes based vessels are part of the cooperative, no sector, will become available at the on the stock assessment in the final allocation to the Amendment 80 limited beginning of that sector’s next seasonal 2020 SAFE report. access sector is required for 2021. The allowance. On March 21, 2019, the final rule Section 679.20(a)(7)(vii) requires that 2022 allocations for Pacific cod between adopting Amendment 113 to the FMP Amendment 80 cooperatives and the the Regional Administrator establish an (81 FR 84434; November 23, 2016) was Amendment 80 limited access sector Area 543 Pacific cod harvest limit based vacated by the U.S. District Court for the will not be known until eligible on Pacific cod abundance in Area 543 District of Columbia (Groundfish Forum participants apply for participation in as determined by the annual stock v. Ross, No. 16–2495 (D.D.C. March 21, the program by November 1, 2021. assessment process. Based on the 2019 2019)), and the corresponding NMFS will post the 2022 Amendment stock assessment, the Regional regulations implementing Amendment 80 cooperatives and Amendment 80 Administrator has preliminarily 113 are no longer in effect. Therefore, limited access allocations on the Alaska determined for 2021 and 2022 that the this proposed rule is not specifying Region website at https:// estimated amount of Pacific cod amounts for the AI Pacific Cod Catcher www.fisheries.noaa.gov/alaska/ abundance in Area 543 is 15.7 percent sustainable-fisheries/sustainable- of total AI abundance. NMFS will first Vessel Harvest Set-Aside Program (see fisheries-alaska prior to the start of the subtract the State GHL Pacific cod § 679.20(a)(7)(viii)). fishing year on January 1, 2022, based amount from the AI Pacific cod ABC. Table 4 lists the CDQ and non-CDQ on the harvest specifications effective Then NMFS will determine the harvest seasonal allowances by gear based on on that date. limit in Area 543 by multiplying the the proposed 2021 and 2022 Pacific cod The sector allocations of Pacific cod percentage of Pacific cod estimated in TACs; the sector allocation percentages are apportioned into seasonal Area 543 (15.7 percent) by the of Pacific cod set forth at allowances to disperse the Pacific cod remaining ABC for AI Pacific cod. Based §§ 679.20(a)(7)(i)(B) and (a)(7)(iv)(A); fisheries over the fishing year (see on these calculations, which rely on the and the seasons set forth at §§ 679.20(a)(7)(i)(B), 679.20 (a)(7)(iv)(A), 2019 stock assessment, the proposed § 679.23(e)(5).

TABLE 4–PROPOSED 2021 AND 2022 SECTOR ALLOCATIONS AND SEASONAL ALLOWANCES OF THE BSAI 1 PACIFIC COD TAC [Amounts are in metric tons]

2021 and 2021 and 2022 seasonal apportionment 2022 share of 2021 and Sector Percent gear sector 2022 share of total sector total Season Amount

Total Bering Sea TAC ...... n/a 92,633 n/a n/a ...... n/a Bering Sea CDQ ...... n/a 9,912 n/a See § 679.20(a)(7)(i)(B) ...... n/a Bering Sea non-CDQ TAC ...... n/a 82,721 n/a n/a ...... n/a Total Aleutian Islands TAC ...... n/a 13,796 n/a n/a ...... n/a Aleutian Islands CDQ ...... n/a 1,476 n/a See § 679.20(a)(7)(i)(B) ...... n/a Aleutian Islands non-CDQ TAC ...... n/a 12,320 n/a n/a ...... n/a Western Aleutians Islands Limit ...... n/a 2,166 n/a n/a ...... n/a Total BSAI non-CDQ TAC 1 ...... 100 95,041 n/a n/a...... n/a Total hook-and-line/pot gear ...... 61 57,785 n/a n/a ...... n/a Hook-and-line/pot ICA 2 ...... n/a n/a 400 n/a ...... n/a Hook-and-line/pot sub-total ...... n/a 57,385 n/a n/a ...... n/a Hook-and-line catcher/processors .... 49 n/a 45,965 Jan 1–Jun 10 ...... 23,442 Jun 10–Dec 31 ...... 22,523 Hook-and-line catcher vessels ≥60 ft 0 n/a 189 Jan 1–Jun 10 ...... 96 LOA. Jun 10–Dec 31 ...... 92 Pot catcher/processors ...... 2 n/a 1,416 Jan 1–Jun 10 ...... 722 Sept 1–Dec 31 ...... 694 Pot catcher vessels ≥60 ft LOA ...... 8 n/a 7,928 Jan 1–Jun 10 ...... 4,043 Sept 1–Dec 31 ...... 3,885 Catcher vessels <60 ft LOA using 2 n/a 1,888 n/a...... n/a hook-and-line or pot gear. Trawl catcher vessels ...... 22 21,004 n/a Jan 20–Apr 1 ...... 15,543 Apr 1–Jun 10 ...... 2,310 Jun 10–Nov 1 ...... 3,151 AFA trawl catcher/processors ...... 2 2,186 n/a Jan 20–Apr 1 ...... 1,639 Apr 1–Jun 10 ...... 546 Jun 10–Nov 1 ...... Amendment 80 ...... 13 12,736 n/a Jan 20–Apr 1 ...... 9,552 Apr 1–Jun 10 ...... 3,184 Jun 10–Dec 31 ......

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TABLE 4–PROPOSED 2021 AND 2022 SECTOR ALLOCATIONS AND SEASONAL ALLOWANCES OF THE BSAI 1 PACIFIC COD TAC—Continued [Amounts are in metric tons]

2021 and 2021 and 2022 seasonal apportionment 2022 share of 2021 and Sector Percent gear sector 2022 share of total sector total Season Amount

Jig ...... 1 1,331 n/a Jan 1–Apr 30 ...... 798 Apr 30–Aug 31 ...... 266 Aug 31–Dec 31 ...... 266 1 The non-CDQ sector allocations and seasonal allowances for BSAI Pacific cod TAC are based on the sum of the BS and AI Pacific cod non- CDQ TACs, after subtraction of the reserve for the CDQ Program. If the non-CDQ TAC for Pacific cod in either the AI or BS is reached, then di- rected fishing for the non-CDQ sectors will be prohibited for Pacific cod in that subarea, even if a BSAI allowance remains. 2 The ICA for the hook-and-line and pot sectors will be deducted from the aggregate portion of Pacific cod TAC allocated to the hook-and-line and pot sectors. The Regional Administrator proposes an ICA of 400 mt for 2021 and 2022 based on anticipated incidental catch in these fisheries.

Sablefish Gear Allocation and-line or pot gear allocation of to the 2021 fishing year to ensure those sablefish TAC to the CDQ reserve for fisheries are conducted concurrently Sections 679.20(a)(4)(iii) and (iv) each subarea. Also, with the halibut IFQ fishery. Concurrent require allocation of sablefish TAC for § 679.20(b)(1)(ii)(D)(1) requires that 7.5 sablefish and halibut IFQ fisheries the BS and AI between trawl gear and percent of the trawl gear allocation of reduce the potential for discards of hook-and-line or pot gear. Gear sablefish TAC from the non-specified halibut and sablefish in those fisheries. allocations of the sablefish TAC for the reserve, established under The sablefish IFQ fisheries remain BS are 50 percent for trawl gear and 50 § 679.20(b)(1)(i), be apportioned to the closed at the beginning of each fishing percent for hook-and-line or pot gear. CDQ reserve. The Council year until the final harvest Gear allocations of the TAC for the AI recommended that only trawl sablefish specifications for the sablefish IFQ are 25 percent for trawl gear and 75 TAC be established biennially. The fisheries are in effect. Table 5 lists the percent for hook-and-line or pot gear. harvest specifications for the hook-and- proposed 2021 and 2022 gear Section 679.20(b)(1)(ii)(B) requires that line or pot gear sablefish Individual allocations of the sablefish TAC and NMFS apportion 20 percent of the hook- Fishing Quota (IFQ) fisheries are limited CDQ reserve amounts.

TABLE 5—PROPOSED 2021 AND 2022 GEAR SHARES AND CDQ RESERVE OF BSAI SABLEFISH TACS [Amounts are in metric tons]

Percent of 2021 Share of 1 2021 CDQ 2022 Share 2022 CDQ Subarea and gear TAC TAC 2021 ITAC reserve of TAC 2022 ITAC reserve

Bering Sea: Trawl ...... 50 1,433 1,218 107 1,433 1,218 107 Hook-and-line gear/pot 2 ...... 50 1,433 n/a 287 n/a n/a n/a

Total ...... 100 2,865 1,218 394 1,433 1,218 107 Aleutian Islands: Trawl ...... 25 625 531 47 625 531 47 Hook-and-line gear/pot 2 ...... 75 1,875 n/a 375 n/a n/a n/a

Total ...... 100 2,500 531 422 625 531 47 1 For the sablefish TAC allocated to vessels using trawl gear, 15 percent of TAC is apportioned to the non-specified reserve (§ 679.20(b)(1)(i)). The ITAC is the remainder of the TAC after subtracting these reserves. In the BS and AI, 7.5 percent of the trawl non-specified reserve is as- signed to the CDQ reserves (§ 679.20(b)(1)(ii)(D)(1)). 2 For the sablefish TAC allocated to vessels using hook-and-line or pot gear, 20 percent of the allocated TAC is reserved for use by CDQ par- ticipants (§ 679.20(b)(1)(ii)(B)). The Council recommended that specifications for the hook-and-line and pot gear sablefish IFQ fisheries be limited to one year. Note: Seasonal or sector apportionments may not total precisely due to rounding.

Allocation of the AI Pacific Ocean CDQ reserves and amounts for ICAs for One Amendment 80 cooperative has Perch, and BSAI Flathead Sole, Rock the BSAI trawl limited access sector and formed for the 2021 fishing year. Sole, and Yellowfin Sole TACs vessels using non-trawl gear. The Because all Amendment 80 vessels are Sections 679.20(a)(10)(i) and (ii) allocation of the ITAC for AI Pacific part of the cooperative, no allocation to require that NMFS allocate AI Pacific ocean perch, and BSAI flathead sole, the Amendment 80 limited access sector ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole to the is required for 2021. The 2022 rock sole, and yellowfin sole TACs Amendment 80 sector is established in allocations for Amendment 80 species between the Amendment 80 sector and Tables 33 and 34 to 50 CFR part 679 and between Amendment 80 cooperatives the BSAI trawl limited access sector, in § 679.91. and the Amendment 80 limited access after subtracting 10.7 percent for the sector will not be known until eligible

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participants apply for participation in fisheries-alaska prior to the start of the share units, multiplied by the the program by November 1, 2021. fishing year on January 1, 2022, based Amendment 80 ABC reserve for each NMFS will post the 2022 Amendment on the harvest specifications effective respective species. Table 6 lists the 80 cooperatives and Amendment 80 on that date. Section 679.91(i)(2) proposed 2021 and 2022 allocations of limited access sector allocations on the establishes each Amendment 80 the AI Pacific ocean perch, and BSAI Alaska Region website at https:// cooperative ABC reserve to be the ratio flathead sole, rock sole, and yellowfin www.fisheries.noaa.gov/alaska/ of each cooperatives’ quota share units sole TACs. sustainable-fisheries/sustainable- and the total Amendment 80 quota

TABLE 6—PROPOSED 2021 AND 2022 COMMUNITY DEVELOPMENT QUOTA (CDQ) RESERVES, INCIDENTAL CATCH AMOUNTS (ICAS), AND AMENDMENT 80 ALLOCATIONS OF THE ALEUTIAN ISLANDS PACIFIC OCEAN PERCH, AND BSAI FLATHEAD SOLE, ROCK SOLE, AND YELLOWFIN SOLE TACS [Amounts are in metric tons]

2021 and 2022 allocations Pacific ocean perch Sector Flathead sole Rock sole Yellowfin sole Eastern Central Western Aleutian Aleutian Aleutian District District District BSAI BSAI BSAI

TAC ...... 10,619 7,817 10,000 24,000 49,000 168,900 CDQ ...... 1,136 836 1,070 2,568 5,243 18,072 ICA ...... 100 60 10 3,000 6,000 4,000 BSAI trawl limited access ...... 938 692 178 ...... 23,673 Amendment 80 ...... 8,444 6,229 8,742 18,432 37,757 123,154

Section 679.2 defines the ABC surplus cooperatives from achieving, on a allocations of CDQ ABC reserves among for flathead sole, rock sole, and continuing basis, the optimum yield in the CDQ groups. The Amendment 80 yellowfin sole as the difference between the BSAI groundfish fisheries. NMFS, ABC reserves are the ABC reserves the annual ABC and TAC for each after consultation with the Council, may minus the CDQ ABC reserves and are species. Section 679.20(b)(1)(iii) set the ABC reserve at or below the ABC allocated to each Amendment 80 establishes ABC reserves for flathead surplus for each species, thus cooperative pursuant to § 679.91(i)(2). sole, rock sole, and yellowfin sole. The maintaining the TAC below ABC limits. Table 7 lists the proposed 2021 and ABC surpluses and the ABC reserves are An amount equal to 10.7 percent of the 2022 ABC surplus and ABC reserves for necessary to mitigate the operational ABC reserves will be allocated as CDQ BSAI flathead sole, rock sole, and variability, environmental conditions, ABC reserves for flathead sole, rock yellowfin sole. and economic factors that may constrain sole, and yellowfin sole. Section the CDQ groups and the Amendment 80 679.31(b)(4) establishes the annual

TABLE 7—PROPOSED 2021 AND 2022 ABC SURPLUS, ABC RESERVES, COMMUNITY DEVELOPMENT QUOTA (CDQ) ABC RESERVES, AND AMENDMENT 80 ABC RESERVES IN THE BSAI FOR FLATHEAD SOLE, ROCK SOLE, AND YELLOWFIN SOLE [Amounts are in metric tons]

Sector Flathead sole Rock sole Yellowfin sole

ABC ...... 71,079 245,400 261,497 TAC ...... 24,000 49,000 168,900 ABC surplus ...... 47,079 196,400 92,597 ABC reserve ...... 47,079 196,400 92,597 CDQ ABC reserve ...... 5,037 21,015 9,908 Amendment 80 ABC reserve ...... 42,042 175,385 82,689

Proposed PSC Limits for Halibut, halibut PSC limit for the BSAI non-trawl fisheries, and Table 11 lists the Salmon, Crab, and Herring sector. proposed fishery PSC allowances for the non-trawl fisheries. Sections 679.21(b), (e), (f), and (g) set Sections 679.21(b)(1)(iii)(A) and (B) authorize apportionment of the BSAI Pursuant to Section 3.6 of the FMP, forth the BSAI PSC limits. Pursuant to non-trawl halibut PSC limit into PSC the Council recommends, and NMFS § 679.21(b)(1), the annual BSAI halibut allowances among six fishery categories, proposes, that certain specified non- PSC limits total 3,515 mt. Section and §§ 679.21(b)(1)(ii)(A) and (B), trawl fisheries be exempt from the 679.21(b)(1) allocates 315 mt of the (e)(3)(i)(B), and (e)(3)(iv) require halibut PSC limit. As in past years, after halibut PSC limit as the PSQ reserve for apportionment of the BSAI trawl limited consultation with the Council, NMFS use by the groundfish CDQ Program, access sector’s halibut and crab PSC proposes to exempt the pot gear fishery, 1,745 mt of the halibut PSC limit for the limits into PSC allowances among seven the jig gear fishery, and the sablefish Amendment 80 sector, 745 mt of the fishery categories. Table 10 lists the IFQ hook-and-line gear fishery halibut PSC limit for the BSAI trawl proposed fishery PSC allowances for the categories from halibut bycatch limited access sector, and 710 mt of the BSAI trawl limited access sector restrictions for the following reasons: (1)

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The pot gear fisheries have low halibut performance standard under reconsider these amounts in December bycatch mortality; (2) NMFS estimates § 679.21(f)(6) in a low abundance year, 2020. Section 679.21(e)(3)(i)(A)(1) halibut mortality for the jig gear fleet to then NMFS will allocate a portion of the allocates 10.7 percent of each trawl gear be negligible because of the small size 45,000 Chinook salmon PSC limit to PSC limit specified for crab as a PSQ of the fishery and the selectivity of the that sector as specified in reserve for use by the groundfish CDQ gear; and (3) the sablefish and halibut § 679.21(f)(3)(iii)(B). If no IPA is Program. IFQ fisheries have low halibut bycatch approved, or if the sector has exceeded Based on the most recent (2019) mortality because the IFQ Program its performance standard under survey data, the red king crab mature requires legal-size halibut to be retained § 679.21(f)(6), and if in a low abundance female abundance is estimated at 9.668 by vessels using hook-and-line gear if a year, then NMFS will allocate a portion million red king crabs, and the effective halibut IFQ permit holder or a hired of the 33,318 Chinook salmon PSC limit spawning biomass is estimated at 25.120 master is aboard and is holding unused to that sector as specified in million lbs (11,394 mt). Based on the halibut IFQ for that vessel category and § 679.21(f)(3)(iii)(D). criteria set out at § 679.21(e)(1)(i), the the IFQ regulatory area in which the NMFS has determined that 2020 was proposed 2021 and 2022 PSC limit of vessel is operating (§ 679.7(f)(11)). a low Chinook salmon abundance year, red king crab in Zone 1 for trawl gear As of October 15, 2020, total based on the State’s estimate that is 97,000 animals. This limit derives groundfish catch for the pot gear fishery Chinook salmon abundance in western from the mature female abundance in the BSAI was 19,733 mt, with an Alaska is less than 250,000 Chinook estimate of more than 8.4 million red associated halibut bycatch mortality of 5 salmon. Therefore, in 2021, the Chinook king crab and the effective spawning mt. The 2020 jig gear fishery harvested salmon PSC limit is 45,000 Chinook biomass estimate of more than 14.5 about 10 mt of groundfish. Most vessels salmon, allocated to each sector as million lbs (6,577 mt) but less than 55 in the jig gear fleet are exempt from specified in § 679.21(f)(3)(iii)(B). The million lbs (24,948 mt). observer coverage requirements. As a AFA sector Chinook salmon allocations Section 679.21(e)(3)(ii)(B)(2) result, observer data are not available on are also seasonally apportioned with 70 establishes criteria under which NMFS halibut bycatch in the jig gear fishery. percent of the allocation for the A must specify an annual red king crab As mentioned above, NMFS estimates a season pollock fishery, and 30 percent bycatch limit for the Red King Crab negligible amount of halibut bycatch of the allocation for the B season Savings Subarea (RKCSS) if the State mortality because of the selective nature pollock fishery (§§ 679.21(f)(3)(i) and has established a GHL fishery for red of jig gear and the low mortality rate of 679.23(e)(2)). In 2021, the Chinook king crab in the Bristol Bay area in the halibut caught with jig gear and salmon bycatch performance standard previous year. The regulations limit the released. under § 679.21(f)(6) is 33,318 Chinook bycatch in the RKCSS to up to 25 Under § 679.21(f)(2), NMFS annually salmon, allocated to each sector as percent of the red king crab PSC allocates portions of either 33,318, specified in § 679.21(f)(3)(iii)(D). NMFS allowance, based on the need to 45,000, 47,591, or 60,000 Chinook publishes the approved IPAs, optimize the groundfish harvest relative salmon PSC limits among the AFA allocations, and reports at https:// to red king crab bycatch. NMFS sectors, depending on past bycatch www.fisheries.noaa.gov/alaska/ proposes the Council’s recommendation performance, on whether Chinook sustainable-fisheries/sustainable- that the red king crab bycatch limit salmon bycatch incentive plan fisheries-alaska. within the RKCSS for 2021 and 2022 be agreements (IPAs) are formed, and on Section 679.21(g)(2)(i) specifies 700 equal to 25 percent of the red king crab whether NMFS determines it is a low fish as the 2021 and 2022 Chinook PSC allowance (Table 9). Chinook salmon abundance year. NMFS salmon PSC limit for the AI pollock Based on the most recent (2019) will determine that it is a low Chinook fishery. Section 679.21(g)(2)(ii) allocates survey data from the NMFS annual salmon abundance year when 7.5 percent, or 53 Chinook salmon, as bottom trawl survey, Tanner crab abundance of Chinook salmon in the AI PSQ reserve for the CDQ (Chionoecetes bairdi) abundance is western Alaska is less than or equal to Program, and allocates the remaining estimated at 541 million animals. 250,000 Chinook salmon. The State 647 Chinook salmon to the non-CDQ Pursuant to criteria set out at provides to NMFS an estimate of fisheries. § 679.21(e)(1)(ii), the calculated 2021 Chinook salmon abundance using the 3- Section 679.21(f)(14)(i) specifies and 2022 C. bairdi crab PSC limit for System Index for western Alaska, based 42,000 fish as the 2021 and 2022 non- trawl gear is 980,000 animals in Zone 1, on the Kuskokwim, Unalakleet, and Chinook salmon PSC limit for vessels and 2,970,000 animals in Zone 2. The Upper Yukon aggregate stock grouping. using trawl gear from August 15 through limit in Zone 1 is based on the If an AFA sector participates in an October 14 in the Catcher Vessel abundance of C. bairdi (estimated at 541 approved IPA and has not exceeded its Operational Area (CVOA). Section million animals), which is greater than performance standard under 679.21(f)(14)(ii) allocates 10.7 percent, 400 million animals. The limit in Zone § 679.21(f)(6), and if it is not a low or 4,494 non-Chinook salmon, in the 2 is based on the abundance of C. bairdi Chinook salmon abundance year, then CVOA as the PSQ reserve for the CDQ (estimated at 541 million animals), NMFS will allocate a portion of the Program, and allocates the remaining which is greater than 400 million 60,000 Chinook salmon PSC limit to 37,506 non-Chinook salmon in the animals. that sector as specified in CVOA to the non-CDQ fisheries. Pursuant to § 679.21(e)(1)(iii), the PSC § 679.21(f)(3)(iii)(A). If no IPA is PSC limits for crab and herring are limit for trawl gear for snow crab (C. approved, or if the sector has exceeded specified annually based on abundance opilio) is based on total abundance as its performance standard under and spawning biomass. Due to the lack indicated by the NMFS annual bottom § 679.21(f)(6), and if it is not a low of new information as of October 2020 trawl survey. The C. opilio crab PSC abundance year, then NMFS will regarding herring PSC limits and limit in the C. opilio bycatch limitation allocate a portion of the 47,591 Chinook apportionments, the Council zone (COBLZ) is set at 0.1133 percent of salmon PSC limit to that sector as recommended, and NMFS proposes, the Bering Sea abundance index minus specified in § 679.21(f)(3)(iii)(C). If an basing the herring 2021 and 2022 PSC 150,000 crabs. Based on the most recent AFA sector participates in an approved limits and apportionments on the 2019 (2019) survey estimate of 11.57 billion IPA and has not exceeded its survey data. The Council will animals, the calculated C. opilio crab

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PSC limit is 13,108,810 animals. If the assigned to the Amendment 80 sector apportionments of halibut and crab PSC total abundance times 0.1133 percent is are then further allocated to amounts for the BSAI non-trawl, BSAI greater than 13 million, then the Amendment 80 cooperatives as trawl limited access, and Amendment maximum PSC is set at 12.850 million cooperative quotas. Crab and halibut 80 limited access sectors to maximize animals. PSC cooperative quotas assigned to the ability of the fleet to harvest the Pursuant to § 679.21(e)(1)(v), the PSC Amendment 80 cooperatives are not available groundfish TAC and to limit of Pacific herring caught while allocated to specific fishery categories. minimize bycatch. The factors conducting any trawl operation for BSAI One Amendment 80 cooperative has considered are (1) seasonal distribution groundfish is 1 percent of the annual formed for the 2021 fishing year. of prohibited species, (2) seasonal eastern Bering Sea herring biomass. The Because all Amendment 80 vessels are distribution of target groundfish species best estimate of 2021 and 2022 herring part of the cooperative, no PSC limit biomass is 253,207 mt. This amount was allocation to the Amendment 80 limited relative to prohibited species developed by the Alaska Department of access sector is required for 2021. The distribution, (3) prohibited species Fish and Game based on biomass for 2022 PSC limit allocations between bycatch needs on a seasonal basis spawning aggregations. Therefore, the Amendment 80 cooperatives and the relevant to prohibited species biomass herring PSC limit proposed for 2021 and Amendment 80 limited access sector and expected catches of target 2022 is 2,532 mt for all trawl gear as will not be known until eligible groundfish species, (4) expected listed in Tables 8 and 9. participants apply for participation in variations in bycatch rates throughout Section 679.21(e)(3)(i)(A) requires that the program by November 1, 2021. the year, (5) expected changes in PSQ reserves be subtracted from the NMFS will post the 2022 Amendment directed groundfish fishing seasons, (6) total trawl PSC limits. The 2021 crab 80 cooperatives and Amendment 80 expected start of fishing effort, and (7) and halibut PSC limits assigned to the limited access sector allocations on the economic effects of establishing Amendment 80 and BSAI trawl limited Alaska Region website at https:// seasonal prohibited species access sectors are listed in Table 35 to www.fisheries.noaa.gov/alaska/ apportionments on segments of the 50 CFR part 679. The resulting proposed sustainable-fisheries/sustainable- target groundfish industry. Based on allocations of crab and halibut PSC fisheries-alaska prior to the start of the this criteria, the Council recommended, limits to CDQ PSQ, the Amendment 80 fishing year on January 1, 2022, based and NMFS proposes, the seasonal PSC sector, and the BSAI trawl limited on the harvest specifications effective apportionments in Tables 10 and 11 to access sector are listed in Table 8. on that date. maximize harvest among gear types, Pursuant to §§ 679.21(b)(1)(i), Sections 679.21(b)(2) and (e)(5) 679.21(e)(3)(vi), and 679.91(d) through authorize NMFS, after consulting with fisheries, and seasons, while (f), crab and halibut trawl PSC limits the Council, to establish seasonal minimizing bycatch of PSC.

TABLE 8—PROPOSED 2021 AND 2022 APPORTIONMENT OF PROHIBITED SPECIES CATCH ALLOWANCES TO NON-TRAWL GEAR, THE CDQ PROGRAM, AMENDMENT 80, AND THE BSAI TRAWL LIMITED ACCESS SECTORS

Non-trawl CDQ PSQ Trawl PSC Amendment BSAI trawl BSAI PSC PSC species and area 1 Total PSC remaining after limited limits not PSC reserve 2 80 sector 3 CDQ PSQ access sector allocated 2

Halibut mortality (mt) BSAI ...... 3,515 710 315 n/a 1,745 745 n/a Herring (mt) BSAI ...... 2,532 n/a n/a n/a n/a n/a n/a Red king crab (animals) Zone 1 ...... 97,000 n/a 10,379 86,621 43,293 26,489 16,839 C. opilio (animals) COBLZ ...... 12,850,000 n/a 1,374,950 11,475,050 5,639,987 3,688,081 2,146,982 C. bairdi crab (animals) Zone 1 ...... 980,000 n/a 104,860 875,140 368,521 411,228 95,390 C. bairdi crab (animals) Zone 2 ...... 2,970,000 n/a 317,790 2,652,210 627,778 1,241,500 782,932 1 Refer to § 679.2 for definitions of areas and zones. 2 The CDQ PSQ reserve for crab species is 10.7 percent of each crab PSC limit. 3 The Amendment 80 program reduced apportionment of the trawl PSC limits for crab below the total PSC limit. These reductions are not ap- portioned to other gear types or sectors.

TABLE 9—PROPOSED 2021 AND 2022 HERRING AND RED KING CRAB SAVINGS SUBAREA PROHIBITED SPECIES CATCH ALLOWANCES FOR ALL TRAWL SECTORS

Red king crab Fishery categories Herring (mt) (animals) BSAI Zone 1

Yellowfin sole ...... 110 n/a Rock sole/flathead sole/Alaska plaice/other flatfish 1 ...... 54 n/a Greenland turbot/arrowtooth flounder/Kamchatka flounder/sablefish ...... 7 n/a Rockfish ...... 7 n/a Pacific cod ...... 13 n/a Midwater trawl pollock ...... 2,299 n/a Pollock/Atka mackerel/other species 23 ...... 42 n/a Red king crab savings subarea non-pelagic trawl gear 4 ...... n/a 24,250

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TABLE 9—PROPOSED 2021 AND 2022 HERRING AND RED KING CRAB SAVINGS SUBAREA PROHIBITED SPECIES CATCH ALLOWANCES FOR ALL TRAWL SECTORS—Continued

Red king crab Fishery categories Herring (mt) (animals) BSAI Zone 1

Total trawl PSC ...... 2,532 97,000 1 ‘‘Other flatfish’’ for PSC monitoring includes all flatfish species, except for halibut (a prohibited species), Alaska plaice, arrowtooth flounder, flathead sole, Greenland turbot, Kamchatka flounder, rock sole, and yellowfin sole. 2 Pollock other than midwater trawl pollock, Atka mackerel, and ‘‘other species’’ fishery category. 3 Other species’’ for PSC monitoring includes skates, sharks, and octopuses. 4 In October 2020, the Council recommended and NMFS proposes that the red king crab bycatch limit for non-pelagic trawl fisheries within the RKCSS be limited to 25 percent of the red king crab PSC allowance (see § 679.21(e)(3)(ii)(B)(2)). Note: Species apportionments may not total precisely due to rounding.

TABLE 10—PROPOSED 2021 AND 2022 PROHIBITED SPECIES BYCATCH ALLOWANCES FOR THE BSAI TRAWL LIMITED ACCESS SECTOR

Prohibited species and area 1 BSAI trawl limited access sector fisheries Halibut Red king crab C. opilio C. bairdi (animals) mortality (animals) (animals) (mt) BSAI Zone 1 COBLZ Zone 1 Zone 2

Yellowfin sole ...... 150 23,338 3,476,708 346,228 1,185,500 Rock sole/flathead sole/other flatfish 2 ...... Greenland turbot/arrowtooth flounder/Kamchatka flounder/ sablefish ...... Rockfish April 15–December 31 ...... 4 ...... 5,743 ...... 1,000 Pacific cod ...... 391 2,954 148,192 60,000 49,999 Pollock/Atka mackerel/other species 3 ...... 200 197 57,438 5,000 5,000

Total BSAI trawl limited access sector PSC ...... 745 26,489 3,688,081 411,228 1,241,500 1 Refer to § 679.2 for definitions of areas and zones. 2 ‘‘Other flatfish’’ for PSC monitoring includes all flatfish species, except for halibut (a prohibited species), Alaska plaice, arrowtooth flounder, flathead sole, Greenland turbot, Kamchatka flounder, rock sole, and yellowfin sole. 3 ‘‘Other species’’ for PSC monitoring includes skates, sharks, and octopuses. Note: Species apportionments may not total precisely due to rounding.

TABLE 11—PROPOSED 2021 AND 2022 HALIBUT PROHIBITED SPECIES BYCATCH ALLOWANCES FOR NON-TRAWL FISHERIES

Halibut mortality (mt) BSAI Catcher/ Non-trawl fisheries Seasons processor Catcher vessel All Non-Trawl

Pacific cod ...... Annual Pacific cod ...... 648 13 661 January 1–June 10 ...... 388 9 n/a June 10–August 15 ...... 162 2 n/a August 15–December 31 ...... 98 2 n/a Non-Pacific cod non-trawl—Total ...... May 1–December 31 ...... n/a n/a 49 Groundfish pot and jig ...... n/a ...... n/a n/a Exempt Sablefish hook-and-line ...... n/a ...... n/a n/a Exempt

Total for all non-trawl PSC ...... n/a ...... n/a n/a 710

Halibut Discard Mortality Rates fishery. DMRs are estimates of the the annual BSAI groundfish SAFE proportion of incidentally caught report. To monitor halibut bycatch mortality halibut that do not survive after being In 2016, the DMR estimation allowances and apportionments, the returned to the sea. The cumulative methodology underwent revisions per Regional Administrator uses observed halibut mortality that accrues to a the Council’s directive. An interagency halibut incidental catch rates, halibut particular halibut PSC limit is the halibut working group (International discard mortality rates (DMRs), and product of a DMR multiplied by the Pacific Halibut Commission, Council, estimates of groundfish catch to project estimated halibut PSC. DMRs are and NMFS staff) developed improved when a fishery’s halibut bycatch estimated using the best scientific estimation methods that have mortality allowance or seasonal information available in conjunction undergone review by the Plan Team, apportionment is reached. Halibut with the annual BSAI stock assessment SSC, and the Council. A summary of the incidental catch rates are based on process. The DMR methodology and revised methodology is included in the observers’ estimates of halibut findings are included as an appendix to BSAI proposed 2017 and 2018 harvest incidental catch in the groundfish specifications (81 FR 87863; December

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6, 2016), and the comprehensive which could provide more recent and updated 2-year reference period. discussion of the working group’s accurate data and which could improve Comparing the proposed 2021 and 2022 statistical methodology is available from the accuracy of estimation and progress DMRs to the final DMRs from the 2020 the Council (see ADDRESSES). The DMR on methodology. The methodology will and 2021 harvest specifications, the working group’s revised methodology is continue to ensure that NMFS is using DMR for motherships and CPs using intended to improve estimation DMRs that more accurately reflect non-pelagic trawl gear increased to 84 accuracy, transparency, and halibut mortality, which will inform the percent from 75 percent, the DMR for transferability used for calculating different sectors of their estimated CVs using non-pelagic trawl gear DMRs. The working group will continue halibut mortality and allow specific increased to 59 percent from 58 percent, sectors to respond with methods that to consider improvements to the the DMR for CPs using hook-and-line could reduce mortality and, eventually, methodology used to calculate halibut gear remained at 9 percent, the DMR for the DMR for that sector. mortality, including potential changes In October 2020, the Council CVs using hook-and-line gear remained to the reference period (the period of recommended halibut DMRs derived at 9 percent, and the DMR for pot gear data used for calculating the DMRs). from the revised methodology for the increased to 32 percent from 27 percent. Future DMRs may change based on proposed 2021 and 2022 DMRs. The Table 12 lists the proposed 2021 and additional years of observer sampling, proposed 2021 and 2022 DMRs use an 2022 DMRs.

TABLE 12—PROPOSED 2021 AND 2022 PACIFIC HALIBUT DISCARD MORTALITY RATES (DMR) FOR THE BSAI

Halibut discard Gear Sector mortality rate (percent)

Pelagic trawl ...... All ...... 100 Non-pelagic trawl ...... Mothership and catcher/processor ...... 84 Non-pelagic trawl ...... Catcher vessel ...... 59 Hook-and-line ...... Catcher vessel ...... 9 Hook-and-line ...... Catcher/processor ...... 9 Pot ...... All ...... 32

Listed AFA C/P Sideboard Limits CFR part 679). NMFS proposes to by listed AFA CPs participating in any exempt AFA CPs from a yellowfin sole groundfish fishery other than pollock Pursuant to § 679.64(a), the Regional sideboard limit pursuant to will accrue against the proposed 2021 Administrator is responsible for § 679.64(a)(1)(v) because the proposed and 2022 PSC sideboard limits for the restricting the ability of listed AFA CPs 2021 and 2022 aggregate ITAC of listed AFA CPs. Sections to engage in directed fishing for yellowfin sole assigned to the 679.21(b)(4)(iii), (e)(3)(v), and (e)(7) groundfish species other than pollock to Amendment 80 sector and BSAI trawl authorize NMFS to close directed protect participants in other groundfish limited access sector is greater than fishing for groundfish other than fisheries from adverse effects resulting 125,000 mt. pollock for listed AFA CPs once a from the AFA fishery and from fishery Section 679.64(a)(2) and Tables 40 proposed 2021 or 2022 PSC sideboard cooperatives in the directed pollock and 41 to 50 CFR part 679 establish a fishery. These restrictions are set out as formula for calculating PSC sideboard limit listed in Table 13 is reached. sideboard limits on catch. On February limits for halibut and crab caught by Pursuant to §§ 679.21(b)(1)(ii)(C) and 8, 2019, NMFS published a final rule listed AFA CPs. The basis for these (e)(3)(ii)(C), halibut or crab PSC by (84 FR 2723) that implemented sideboard limits is described in detail in listed AFA CPs while fishing for pollock regulations to prohibit non-exempt AFA the final rules implementing the major will accrue against the PSC allowances CPs from directed fishing for groundfish provisions of the AFA (67 FR 79692; annually specified for the pollock/Atka species or species groups subject to December 30, 2002) and Amendment 80 mackerel/‘‘other species’’ fishery sideboard limits (see (72 FR 52668; September 14, 2007). PSC categories, according to § 679.20(d)(1)(iv)(D) and Table 54 to 50 species listed in Table 13 that are caught §§ 679.21(b)(1)(ii)(B) and (e)(3)(iv).

TABLE 13—PROPOSED 2021 AND 2022 BSAI AMERICAN FISHERIES ACT LISTED CATCHER/PROCESSOR PROHIBITED SPECIES SIDEBOARD LIMITS

Proposed 2021 and Proposed 2022 PSC 2021 and 1 Ratio of PSC PSC species and area to total PSC available to 2022 CP trawl vessels sideboard after subtrac- limit 2 tion of PSQ 2

BSAI Halibut mortality ...... n/a n/a 286 Red king crab Zone 1 ...... 0.007 86,621 606 C. opilio (COBLZ) ...... 0.153 11,475,050 1,755,683 C. bairdi Zone 1 ...... 0.140 875,140 122,520 C. bairdi Zone 2 ...... 0.050 2,652,210 132,611 1 Refer to § 679.2 for definitions of areas and zones. 2 Halibut amounts are in metric tons of halibut mortality. Crab amounts are in numbers of animals.

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AFA CV Sideboard Limits non-exempt AFA CVs from directed the major provisions of the AFA (67 FR fishing for a majority of the groundfish 79692; December 30, 2002) and Pursuant to § 679.64(b), the Regional species or species groups subject to Amendment 80 (72 FR 52668; Administrator is responsible for sideboard limits (see September 14, 2007). NMFS proposes to restricting the ability of AFA CVs to § 679.20(d)(1)(iv)(D) and Table 55 to 50 exempt AFA CVs from a yellowfin sole engage in directed fishing for groundfish CFR part 679). The remainder of the sideboard limit pursuant to species other than pollock to protect sideboard limits for non-exempt AFA § 679.64(b)(6) because the proposed participants in other groundfish CVs are proposed in Table 14. 2021 and 2022 aggregate ITAC of fisheries from adverse effects resulting Sections 679.64(b)(3) and (b)(4) yellowfin sole assigned to the from the AFA and from fishery establish formulas for setting AFA CV Amendment 80 sector and BSAI trawl cooperatives in the pollock directed groundfish and halibut and crab PSC limited access sector is greater than fishery. On February 8, 2019, NMFS sideboard limits for the BSAI. The basis 125,000 mt. Table 14 lists the proposed published a final rule (84 FR 2723) that for these sideboard limits is described in 2021 and 2022 AFA CV sideboard implemented regulations to prohibit detail in the final rules implementing limits.

TABLE 14—PROPOSED 2021 AND 2022 BSAI PACIFIC COD SIDEBOARD LIMITS FOR AMERICAN FISHERIES ACT CATCHER VESSELS (CVS) [Amounts are in metric tons]

2021 and Ratio of 1995– 2021 and 2022 AFA Fishery by area/gear/season 1997 AFA CV 2022 initial catcher vessel catch to 1995– TAC sideboard 1997 TAC limits

BSAI ...... n/a n/a n/a Trawl gear CV ...... n/a n/a n/a Jan 20–Apr 1 ...... 0.8609 15,543 13,381 Apr 1–Jun 10 ...... 0.8609 2,310 1,989 Jun 10–Nov 1 ...... 0.8609 3,151 2,713 Note: As proposed, § 679.64(b)(6) exempts AFA catcher vessels from a yellowfin sole sideboard limit because the 2021 and 2022 aggregate ITAC of yellowfin sole assigned to the Amendment 80 sector and BSAI trawl limited access sector is greater than 125,000 mt.

Halibut and crab PSC limits listed in authorize NMFS to close directed fishing for pollock in the BS will accrue Table 15 that are caught by AFA CVs fishing for groundfish other than against the PSC allowances annually participating in any groundfish fishery pollock for AFA CVs once a proposed specified for the pollock/Atka mackerel/ other than pollock will accrue against 2021 and 2022 PSC sideboard limit ‘‘other species’’ fishery categories under the 2021 and 2022 PSC sideboard limits listed in Table 15 is reached. Pursuant §§ 679.21(b)(1)(ii)(B) and (e)(3)(iv). for the AFA CVs. Sections to §§ 679.21(b)(1)(ii)(C) and (e)(3)(ii)(C), 679.21(b)(4)(iii), (e)(3)(v), and (e)(7) halibut or crab PSC by AFA CVs while

TABLE 15—PROPOSED 2021 AND 2022 AMERICAN FISHERIES ACT CATCHER VESSEL PROHIBITED SPECIES CATCH SIDEBOARD LIMITS FOR THE BSAI 1

Proposed Proposed 2021 and AFA catcher 2021 and 2022 AFA vessel PSC 2022 PSC limit PSC species and area 1 Target fishery category 2 catcher vessel sideboard limit after subtrac- PSC ratio tion of PSQ sideboard reserves 3 limit 3

Halibut ...... Pacific cod trawl ...... n/a n/a 887 Pacific cod hook-and-line or pot ...... n/a n/a 2 Yellowfin sole total ...... n/a n/a 101 Rock sole/flathead sole/Alaska plaice/other flatfish 4 ...... n/a n/a 228 Greenland turbot/arrowtooth flounder/Kamchatka flounder/ n/a n/a sablefish. Rockfish ...... n/a n/a 2 Pollock/Atka mackerel/other species 5 ...... n/a n/a 5 Red king crab Zone 1 ...... n/a ...... 0.2990 86,621 25,900 C. opilio COBLZ ...... n/a ...... 0.1680 11,475,050 1,927,808 C. bairdi Zone 1 ...... n/a ...... 0.3300 875,140 288,796 C. bairdi Zone 2 ...... n/a ...... 0.1860 2,652,210 493,311 1 Refer to § 679.2 for definitions of areas and zones. 2 Target fishery categories are defined at § 679.21(b)(1)(ii)(B) and (e)(3)(iv). 3 Halibut amounts are in metric tons of halibut mortality. Crab amounts are in numbers of animals. 4 ‘‘Other flatfish’’ for PSC monitoring includes all flatfish species, except for halibut (a prohibited species), Alaska plaice, arrowtooth flounder, flathead sole, Greenland turbot, Kamchatka flounder, rock sole, and yellowfin sole. 5 ‘‘Other species’’ for PSC monitoring includes skates, sharks, and octopuses.

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Classification economic impact of this proposed rule for membership in these cooperatives, NMFS has determined that the on small entities. The description of the there are an estimated 605 small CV and proposed harvest specifications are proposed action, its purpose, and the 56 small CP entities remaining in the consistent with the FMP and legal basis are explained earlier in the BSAI groundfish sector. However, the preliminarily determined that the preamble and are not repeated here. estimate of these 605 CVs may be an For RFA purposes only, NMFS has proposed harvest specifications are overstatement of the number of small established a small business size consistent with the Magnuson-Stevens entities. This latter group of vessels had standard for businesses, including their Act and other applicable laws, subject to average gross revenues that varied by affiliates, whose primary industry is gear type. Average gross revenues for further review after public comment. commercial fishing (see 50 CFR 200.2). This action is authorized under 50 hook-and-line CVs, pot gear CVs, trawl A business primarily engaged in CFR 679.20 and is exempt from review gear CVs, hook-and-line CPs, and pot commercial fishing (NAICS code 11411) gear CPs are estimated to be $500,000, under Executive Order 12866. is classified as a small business if it is NMFS prepared an EIS for the Alaska $1.4 million, $2.9 million, $7.0 million, independently owned and operated, is and $3.5 million, respectively. groundfish harvest specifications and not dominant in its field of operation alternative harvest strategies and made (including its affiliates), and has Description of Significant Alternatives it available to the public on January 12, combined annual gross receipts not in That Minimize Adverse Impacts on 2007 (72 FR 1512). On February 13, excess of $11 million for all its affiliated Small Entities 2007, NMFS issued the ROD for the operations worldwide. A shoreside The action under consideration is the Final EIS. A SIR is being prepared for processor primarily involved in seafood proposed 2021 and 2022 harvest the final 2021 and 2022 harvest processing (NAICS code 311710) is specifications, apportionments, and specifications to provide a subsequent classified as a small business if it is prohibited species catch limits for the assessment of the action and to address independently owned and operated, is groundfish fishery of the BSAI. This the need to prepare a Supplemental EIS not dominant in its field of operation action is necessary to establish harvest (40 CFR 1501.11(b); 1502.9(d)(1)). (including its affiliates), and has limits for groundfish during the 2021 Copies of the Final EIS, ROD, and combined annual employment, counting and 2022 fishing years and is taken in annual SIRs for this action are available all individuals employed on a full-time, accordance with the FMP prepared by from NMFS (see ADDRESSES). The Final part-time, or other basis, not in excess the Council pursuant to the Magnuson- EIS analyzes the environmental, social, of 750 employees for all its affiliated Stevens Act. The establishment of the and economic consequences of the operations worldwide. proposed harvest specifications is proposed groundfish harvest governed by the Council’s harvest specifications and alternative harvest Number and Description of Small strategy to govern the catch of strategies on resources in the action Entities Regulated by This Proposed groundfish in the BSAI. This strategy area. Based on the analysis in the Final Rule was selected from among five EIS, NMFS concluded that the preferred The entities directly regulated by the alternatives, with the preferred alternative (Alternative 2) provides the groundfish harvest specifications alternative harvest strategy being one in best balance among relevant include: (a) Entities operating vessels which the TACs fall within the range of environmental, social, and economic with groundfish Federal fisheries ABCs recommended by the SSC. Under considerations and allows for continued permits (FFPs) catching FMP groundfish the preferred harvest strategy, TACs are management of the groundfish fisheries in Federal waters (including those set to a level that falls within the range based on the most recent, best scientific receiving direction allocations of of ABCs recommended by the SSC; the information. groundfish); (b) all entities operating sum of the TACs must achieve the OY vessels, regardless of whether they hold Initial Regulatory Flexibility Analysis specified in the FMP. While the specific groundfish FFPs, catching FMP numbers that the harvest strategy This Initial Regulatory Flexibility groundfish in the state-waters parallel produces may vary from year to year, Analysis (IRFA) was prepared for this fisheries; and (c) all entities operating the methodology used for the preferred proposed rule, as required by Section vessels fishing for halibut inside three harvest strategy remains constant. 603 of the Regulatory Flexibility Act miles of the shore (whether or not they The TACs associated with preferred (RFA) (5 U.S.C. 603), to describe the have FFPs). harvest strategy are those recommended economic impact that this proposed In 2019 (the most recent year of by the Council in October 2020. OFLs rule, if adopted, would have on small complete data), there were 661 and ABCs for the species were based on entities. The IRFA describes the action; individual CVs and CPs with gross recommendations prepared by the the reasons why this proposed rule is revenues less than or equal to $11 Council’s Plan Team in September 2020, proposed; the objectives and legal basis million as well as six CDQ groups. This and reviewed by the Council’s SSC in for this proposed rule; the estimated estimate does not account for corporate October 2020. The Council based its number and description of directly affiliations among vessels, and for TAC recommendations on those of its regulated small entities to which this cooperative affiliations among fishing AP, which were consistent with the proposed rule would apply; the entities, since some of the fishing SSC’s OFL and ABC recommendations. recordkeeping, reporting, and other vessels operating in the BSAI are The sum of all TACs remains within the compliance requirements of this members of AFA inshore pollock OY for the BSAI consistent with proposed rule; and the relevant Federal cooperatives, Gulf of Alaska Rockfish § 679.20(a)(1)(i)(A). Because setting all rules that may duplicate, overlap, or Program cooperatives, or BSAI Crab TACs equal to ABCs would cause the conflict with this proposed rule. The Rationalization Program cooperatives. sum of TACs to exceed an OY of 2 IRFA also describes significant Vessels that participate in these million mt, TACs for some species or alternatives to this proposed rule that cooperatives are considered to be large species groups are lower than the ABCs would accomplish the stated objectives entities within the meaning of the RFA recommended by the Plan Team and the of the Magnuson-Stevens Act, and any because the aggregate gross receipts of SSC. other applicable statutes, and that all participating members exceed the The proposed 2021 and 2022 OFLs would minimize any significant $11 million threshold. After accounting and ABCs are based on the best

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available biological information, proposed ABCs. The specific reductions statutes, and would minimize to the including projected biomass trends, are reviewed and recommended by the extent practicable adverse economic information on assumed distribution of Council’s AP, and the Council in turn impacts on the universe of directly stock biomass, and revised technical adopted the AP’s TAC regulated small entities. methods to calculate stock biomass. The recommendations for the proposed 2021 This action does not modify proposed 2021 and 2022 TACs are based and 2022 TACs. recordkeeping or reporting on the best available biological and Based upon the best available requirements, or duplicate, overlap, or socioeconomic information. The scientific data, and in consideration of conflict with any Federal rules. proposed 2021 and 2022 OFLs, ABCs, the Council’s objectives of this action, it This proposed rule contains no and TACs are consistent with the appears that there are no significant information collection requirements biological condition of groundfish alternatives to the proposed rule that under the Paperwork Reduction Act of stocks as described in the 2019 SAFE have the potential to accomplish the 1995. report, which is the most recent, stated objectives of the Magnuson- Adverse impacts on marine mammals completed SAFE report. Stevens Act and any other applicable or endangered or threatened species Under this action, the proposed ABCs statutes and that have the potential to resulting from fishing activities reflect harvest amounts that are less minimize any significant adverse conducted under these harvest than the specified overfishing levels. economic impact of the proposed rule specifications are discussed in the Final The proposed TACs are within the range on small entities. This action is EIS and its accompanying annual SIRs of proposed ABCs recommended by the economically beneficial to entities (see ADDRESSES). SSC and do not exceed the biological operating in the BSAI, including small Authority: 16 U.S.C. 773 et seq.; 16 U.S.C. limits recommended by the SSC (the entities. The action proposes TACs for 1540(f); 16 U.S.C. 1801 et seq.; 16 U.S.C. ABCs and overfishing levels). For some commercially-valuable species in the 3631 et seq.; Pub. L. 105–277; Pub. L. 106– species and species groups in the BSAI, BSAI and allows for the continued 31; Pub. L. 106–554; Pub. L. 108–199; Pub. the Council recommended, and NMFS prosecution of the fishery, thereby L. 108–447; Pub. L. 109–241; Pub. L. 109– 479. proposes, proposed TACs equal to creating the opportunity for fishery proposed ABCs, which is intended to revenue. After public process, during Dated: November 25, 2020. maximize harvest opportunities in the which the Council solicited input from Samuel D. Rauch III, BSAI. However, NMFS cannot set TACs stakeholders, the Council concluded Deputy Assistant Administrator for for all species in the BSAI equal to their that the proposed harvest specifications Regulatory Programs, National Marine ABCs due to the constraining OY limit would best accomplish the stated Fisheries Service. of two million mt. For this reason, some objectives articulated in the preamble [FR Doc. 2020–26598 Filed 12–1–20; 8:45 am] proposed TACs are less than the for this proposed rule, and in applicable BILLING CODE 3510–22–P

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Notices Federal Register Vol. 85, No. 233

Thursday, December 3, 2020

This section of the FEDERAL REGISTER displays a currently valid OMB control ACTION: Extension of approval of an contains documents other than rules or number. information collection; comment proposed rules that are applicable to the request. public. Notices of hearings and investigations, Farm Service Agency committee meetings, agency decisions and Title: Certified Mediation Program (7 SUMMARY: In accordance with the rulings, delegations of authority, filing of CFR part 785). Paperwork Reduction Act of 1995, this petitions and applications and agency OMB Control Number: 0560–0165. notice announces the Animal and Plant statements of organization and functions are Health Inspection Service’s intention to examples of documents appearing in this Summary of Collection: The Farm section. Service (FSA) is administering the request an extension of approval of an Certified Mediation Program as information collection associated with mandated by Subtitle A and B of Title the regulations for the commercial DEPARTMENT OF AGRICULTURE V of the Agricultural Credit Act of 1987 transportation of equines to slaughtering (Pub. L. 100–233), as amended, under facilities. Submission for OMB Review; the USDA Agricultural Mediation DATES: We will consider all comments Comment Request Program. USDA authorized FSA to that we receive on or before February 1, administer the program. FSA makes 2021. November 30, 2020. grants to state-designated entitles that ADDRESSES: The Department of Agriculture has You may submit comments provide mediation to agricultural submitted the following information by either of the following methods: producers, their lenders and others that • Federal eRulemaking Portal: Go to collection requirement(s) to OMB for are directly affected by the action of http://www.regulations.gov/ review and clearance under the certain USDA agencies. In mediation, a #!docketDetail;D=APHIS-2020-0103. Paperwork Reduction Act of 1995, trained impartial mediator helps • Postal Mail/Commercial Delivery: Public Law 104–13. Comments are Send your comment to Docket No. required regarding; whether the participants review and discuss their APHIS–2020-0103, Regulatory Analysis collection of information is necessary conflicts, identify options to resolve and Development, PPD, APHIS, Station for the proper performance of the disputes and agree on solutions. 3A–03.8, 4700 River Road Unit 118, functions of the agency, including Need and Use of the Information: FSA Riverdale, MD 20737–1238. whether the information will have will collect information to determine Supporting documents and any practical utility; the accuracy of the whether the participants meet the comments we receive on this docket agency’s estimate of burden including eligibility requirements to be recipients may be viewed at http:// the validity of the methodology and of grant funds, and secondly, to www.regulations.gov/ assumptions used; ways to enhance the determine if the grant is being #!docketDetail;D=APHIS-2020-0103 or quality, utility and clarity of the administered as provided by the Act. in our reading room, which is located in information to be collected; and ways to Lack of adequate information to make minimize the burden of the collection of these determinations could result in the Room 1620 of the USDA South information on those who are to improper administration and Building, 14th Street and Independence respond, including through the use of appropriation of Federal grant funds. Avenue SW, Washington, DC. Normal appropriate automated, electronic, Description of Respondents: State, reading room hours are 8 a.m. to 4:30 mechanical, or other technological Local or Tribal Government. p.m., Monday through Friday, except collection techniques or other forms of Number of Respondents: 42. holidays. To be sure someone is there to information technology. Frequency of Responses: Reporting: help you, please call (202) 799–7039 Comments regarding this information Annually. before coming. collection received by January 4, 2021 Total Burden Hours: 2,772. FOR FURTHER INFORMATION CONTACT: For information on the regulations for the will be considered. Written comments Ruth Brown, and recommendations for the proposed commercial transportation of equines Departmental Information Collection for slaughter, contact Dr. Rory Carolan, information collection should be Clearance Officer. Equine Specialist, Surveillance, submitted within 30 days of the [FR Doc. 2020–26615 Filed 12–2–20; 8:45 am] publication of this notice on the Preparedness, and Response Services, BILLING CODE 3410–05–P following website www.reginfo.gov/ VS, APHIS, 4700 River Road Unit 46, public/do/PRAMain. Find this Riverdale, MD 20737; (301) 851–3558. particular information collection by DEPARTMENT OF AGRICULTURE For copies of more detailed information selecting ‘‘Currently under 30-day on the information collection, contact Review—Open for Public Comments’’ or Animal and Plant Health Inspection Mr. Joseph Moxey, APHIS’ Information by using the search function. Service Collection Coordinator, at (301) 851– An agency may not conduct or 2483. [Docket No. APHIS–2020–0103] sponsor a collection of information SUPPLEMENTARY INFORMATION: unless the collection of information Notice of Request for Extension of Title: Commercial Transportation of displays a currently valid OMB control Approval of an Information Collection; Equines for Slaughter. number and the agency informs Commercial Transportation of Equines OMB Control Number: 0579–0332. potential persons who are to respond to for Slaughter Type of Request: Extension of the collection of information that such approval of an information collection. persons are not required to respond to AGENCY: Animal and Plant Health Abstract: Sections 901–905 of the the collection of information unless it Inspection Service, USDA. Federal Agriculture Improvement and

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Reform Act of 1996 (7 U.S.C. 1901) information collection. These comments public input about water quantity in the authorize the Secretary of Agriculture to will help us: west as it relates to existing NRCS issue guidelines for regulating the (1) Evaluate whether the collection of programs. There will not be any in- commercial transportation of equines to information is necessary for the proper person gathering for this listening slaughter by persons regularly engaged performance of the functions of the session. in that activity within the United States. Agency, including whether the DATES: Specifically, the Secretary is authorized information will have practical utility; Listening Session: The virtual public to regulate the food, water, and rest (2) Evaluate the accuracy of our listening session will be held on provided to these equines while the estimate of the burden of the collection Thursday, December 17, 2020 (also see equines are in transit and to review of information, including the validity of below for Meeting Times section below). related issues appropriate to ensuring the methodology and assumptions used; Registration to comment date: To that these animals are treated humanely. (3) Enhance the quality, utility, and provide oral comments during the To implement the provisions of this clarity of the information to be virtual listening session, you must Act, the Animal and Plant Health collected; and register by 12:00 p.m. (noon) on Inspection Service (APHIS) established (4) Minimize the burden of the Tuesday, December 18, 2020. minimum standards to ensure the collection of information on those who Registration to view date: You may humane movement of equines to are to respond, through use, as register to view the listening session slaughtering facilities, or to assembly appropriate, of automated, electronic, (but not provide oral comments), by points while en route to slaughtering mechanical, and other collection 12:00 p.m. (noon) on Tuesday, facilities, via commercial transportation. technologies; e.g., permitting electronic December 15, 2020. These standards, contained in 9 CFR submission of responses. Written comment date: You may part 88, require that conveyances Estimate of burden: The public submit written comments by January 19, protect the health and well-being of the burden for this collection of information 2021. animals and meet certain other criteria; is estimated to average 0.465 hours per that double-deck conveyances are ADDRESSES: response. Registration: To register and receive prohibited; and that access to food, Respondents: Owners and shippers of information on how to attend the virtual water, and rest be provided to these slaughter horses, owners or operators of listening session, please email your animals 6 hours prior to shipment. slaughtering facilities, and drivers of the information to WesternWater@ APHIS’ regulations also require the transport vehicles. usda.gov—send your first and last name, application of backtags and completion Estimated annual number of organization, job title, City, State, email, of owner/shipper certificates of fitness respondents: 302. and phone number. to travel to a slaughter facility with Estimated annual number of Written comments: We invite you to identification of the animals and details responses per respondent: 61. submit written comments by any of the of the transportation and signatures Estimated annual number of following methods: attesting to compliance with the responses: 18,500. • Mail: Deborah Miles, NRCS, ATTN: provision of food, rest, and water and to Estimated total annual burden on Western Water Quantity Listening the animal’s fitness to travel. The respondents: 8,608 hours. (Due to Session, 1400 Independence Ave. SW, regulations further prohibit the use of averaging, the total annual burden hours Room 5739, Mail Stop 1600, electric prods and state aggressive may not equal the product of the annual animals must be separated. Any owner/ Washington, DC 20250, or number of responses multiplied by the • Email: [email protected]. shipper transporting equines to reporting burden per response.) slaughtering facilities outside the All responses to this notice will be FOR FURTHER INFORMATION CONTACT: For United States must present the owner- summarized and included in the request further information about providing shipper certificates to U.S. Department for OMB approval. All comments will written comments, joining the virtual of Agriculture representatives at the also become a matter of public record. listening session, or registering to speak border. at the virtual listening session, contact Implementing these regulations Done in Washington, DC, this 30th day of Leslie Deavers, telephone: 202–690– November 2020. entails the use of information collection 4616, or by email: Leslie.Deavers@ activities such as providing business Mark Davidson, usda.gov. Persons with disabilities who information; completing owner/shipper Acting Administrator, Animal and Plant require alternative means for certificates of fitness to travel to a Health Inspection Service. communication should contact the slaughter facility; applying backtags, as [FR Doc. 2020–26611 Filed 12–2–20; 8:45 am] USDA Target Center at (202) 720–2600 needed; certificates of veterinary BILLING CODE 3410–34–P (voice). inspection; and maintaining records of SUPPLEMENTARY INFORMATION: the owner/shipper certificates and Background continuation sheets. DEPARTMENT OF AGRICULTURE On November 5, 2020, NRCS APHIS is asking the Office of Virtual Public Listening Session; announced it had selected 31 priority Management and Budget (OMB) to Natural Resources Conservation areas to receive $13 million in approve these information collection Service Programs and Western Water Environmental Quality Incentives activities for an additional 3 years. The Quantity activities described are associated with Program (EQIP) funding as part of the APHIS’ efforts to ensure that equines AGENCY: Natural Resources WaterSMART Initiative (WSI). These being transported commercially for Conservation Service, USDA. investments will help producers on slaughter receive adequate food, water, ACTION: Notice. private working lands better conserve and rest and that their health and well- water resources in coordination with being are protected. SUMMARY: The Natural Resources investments made by water suppliers. The purpose of this notice is to solicit Conservation Service (NRCS) will host a The Natural Resources Conservation comments from the public (as well as virtual, open, public listening session Service (NRCS) will host a virtual, open, affected agencies) concerning our with remote participation only, for public listening session with remote

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participation only, for public input Meeting Agenda USDA Non-Discrimination Statement about water quantity in the west as it The listening session will begin with No agency, officer, or employee of the relates to existing NRCS programs. brief opening remarks, with an overview USDA will, on the grounds of race, (There will not be any in-person of NRCS efforts to address water related color, national origin, religion, sex, gathering for this listening session.) issues in the west, from USDA and gender identity, sexual orientation, Stakeholders will have an opportunity NRCS leadership. disability, age, marital status, family or to provide oral comments during the Individual speakers providing oral parental status, income derived from a virtual public listening session. comments will be limited to 3 minutes public assistance program, or political Stakeholders must notify NRCS each. However, if all speakers can be beliefs, exclude from participation in, during registration of their wish to accommodated within time for the deny the benefits of, or subject to speak at the listening session. listening session, individual speaking discrimination any person in the United Stakeholders who do not notify NRCS times may be adjusted at the written States under any program or activity during registration of their wish to request of the stakeholder (use the FOR conducted by USDA. speak will not have the opportunity to FURTHER INFORMATION CONTACT comment during the virtual listening information provided above in this How To File a Complaint of session. Due to the anticipated high notice). If, at 3 minutes each, the time Discrimination level of interest in the opportunity to allotted to registered speakers exceeds To file a complaint of discrimination, make public comments and the limited the available time for the listening complete the USDA Program time available to do so, NRCS will do session, a limited number of speakers Discrimination Complaint Form, which its best to accommodate all persons who will be selected on a first-come, first- may be accessed online at: https:// registered and requested to provide oral serve basis. www.ocio.usda.gov/sites/default/files/ comments and will limit all speakers to If you are called upon during the docs/2012/Complain_combined_6_8_ 3 minutes. NRCS encourages persons listening session to provide oral 12.pdf or write a letter signed by you or and groups who have similar interests to comments and you or your your authorized representative. consolidate their information for representative are not available to speak, You may also send your completed presentation by a single representative. your opportunity to provide oral complaint form or letter to USDA by any The stakeholders may provide comments will pass to another speaker. of following methods: Mail: U.S. feedback on any of the following Meeting Times Department of Agriculture, Director, questions: Office of Adjudication, 1400 The listening session will be held on Independence Avenue SW, Washington, D For agricultural producers: What is Thursday, December 17, 2020, starting your most pressing water related issue DC 20250–9410; Fax: (202) 690–7442; or at 10:00 a.m. Eastern time. A mid-day Email: [email protected]. that may constrain or currently break will be scheduled at constrains your operations? Persons with disabilities who require approximately 12:00 p.m. (noon). The alternative means for communication D For non-producers and listening session will resume at 1:30 should contact USDA’s TARGET Center organizations: What is your most p.m. and continue to approximately at (202) 720–2600 (voice only). pressing water related issue that is 3:30 p.m. needed by the agricultural community NRCS may decide to extend the Kevin D. Norton, you assist? listening session to Friday, December Acting Chief, Natural Resources Conservation D For producers and organizations: 18, 2020. At the end of the listening Service. What is your most pressing water session on Thursday, December 17, [FR Doc. 2020–26525 Filed 12–2–20; 8:45 am] related issue with which NRCS can help 2020, NRCS will announce whether an BILLING CODE 3410–16–P you through a technical or financial extension of the listening session will assistance program or through occur on Friday, December 18, 2020, or facilitating and engaging in a whether the listening session will COMMISSION ON CIVIL RIGHTS collaboration or partnership? conclude on Thursday, December 17, D How can NRCS best coordinate with 2020. If the listening session is extended Notice of Public Meeting of the New other Federal, State, and Local efforts to to Friday, December 18, 2020, the York Advisory Committee address water related issues? listening session will begin at 10:00 a.m. Eastern time and end at approximately AGENCY: U.S. Commission on Civil D How can State Technical Rights. Committees assist in addressing your 12:00 p.m. (noon). The listening session ACTION: Notice of meeting. most pressing water related issues? on Friday, December 18, 2020, may end earlier if there are no additional oral D What additional issues do you SUMMARY: Notice is hereby given, comments to be presented from anyone confront that NRCS should have pursuant to the provisions of the rules who registered to provide oral awareness of? and regulations of the U.S. Commission comments. NRCS expects to obtain input about on Civil Rights (Commission) and the the challenges, needed breakthroughs, Oral and Written Comments Federal Advisory Committee Act that and priorities through the virtual We request that speakers providing the New York Advisory Committee listening session and through oral comments also provide a written (Committee) will hold a meeting on submission of written comments. NRCS copy of their comments. All written Friday, December 18, 2020, from 1:00– will treat stakeholder input equally. comments have the same due date, as 2:15 p.m. EST for the purpose of NRCS will then evaluate the challenges, specified above in this notice. discussing the Committee’s project on needed breakthroughs, and priorities evictions in New York. identified by this effort and will Registration Required To Attend DATES: The meeting will be held on consider this information in its There is no registration fee for the Friday, December 18, 2020, from 1:00– evaluation of existing programs and public listening session, but pre- 2:00 p.m. EST. efforts to position these programs to registration is mandatory for anyone Public Call Information: Dial: (800) achieve positive outcomes. who wishes to attend. 367–2403; Conference ID: 7109728.

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FOR FURTHER INFORMATION CONTACT: Dated: November 30, 2020. insertion, flexibly targeting multiple Mallory Trachtenberg, DFO, at David Mussatt, regions and large-scale neural [email protected] or 202–809– Supervisory Chief, Regional Programs Unit. recordings. 9618. [FR Doc. 2020–26613 Filed 12–2–20; 8:45 am] Docket Number: 20–004. Applicant: BILLING CODE P Texas A&M University, AgriLife SUPPLEMENTARY INFORMATION: Members Research, 2147 TAMU, College Station, of the public can listen to the TX 77843–2147A. Instrument: 3D discussion. This meeting is available to DEPARTMENT OF COMMERCE Microfabrication System Photonic the public through the following toll- Professional GT. Manufacturer: free call-in number. An open comment International Trade Administration Nanoscribe, Germany. Intended Use: period will be provided to allow See Notice at 85 FR 66305–06, October members of the public to make a Decision on Application for Duty-Free 19, 2020. Comments: None received. statement as time allows. The Entry of Scientific Instruments; Rice Decision: Approved. We know of no conference operator will ask callers to University, et. al instruments of equivalent scientific identify themselves, the organizations value to the foreign instruments they are affiliated with (if any), and an This is a decision pursuant to Section described below, for such purposes as email address prior to placing callers 6(c) of the Educational, Scientific, and this is intended to be used, that were into the conference call. Callers can Cultural Materials Importation Act of being manufactured in the United States expect to incur charges for calls they 1966 (Pub. L. 89–651, as amended by at the time of order. Reasons: According initiate over wireless lines, and the Pub. L. 106–36; 80 Stat. 897; 15 CFR to the applicant, the instrument will be Commission will not refund any part 301). On October 19, 2020, the used to conduct research in the broad incurred charges. Callers will incur no Department of Commerce published a areas of material research, thin-film charge for calls they initiate over land- notice in the Federal Register metal semiconductors, bio- line connections to the toll-free requesting public comment on whether microfluidics, medical devices and telephone number. Persons with hearing instruments of equivalent scientific optical/photonic devices, to name a few. impairments may also follow the value, for the purposes for which the These physical platforms will manifest proceedings by first calling the Federal instruments identified in the docket(s) in the forms of devices (ranging from 1– Relay Service at 1–800–977–8339 and below are intended to be used, are being 200 cm2) that will then be taken to providing the Service with the manufactured in the United States. See individual laboratories for further conference call number and conference Application(s) for Duty-Free Entry of experimentation in the aforementioned ID number. Scientific Instruments, 85 FR 66305, fields under the guidance and scope of Members of the public are also October 19, 2020 (Notice). We received the Texas A&M University research entitled to submit written comments; no public comments. Related records communities. the comments must be received in the can be viewed through prior Docket Number: 20–005. Applicant: regional office within 30 days following arrangement with Ms. Dianne Hanshaw University of Chicago Argonne LLC, the meeting. Written comments may be at [email protected]. Operator of National Laboratory 9700 emailed to Mallory Trachtenberg at Docket Number: 20–003. Applicant: South Cass Avenue, Lemont, IL 60439– Rice University, Department of 4 [email protected] in the 4873. Instrument: Libera Brilliance+ ⁄4 Regional Programs Unit Office/Advisory Microengineering, 6100 Main Street, with GDX module BPM electronics. Committee Management Unit. Persons Houston, TX 77030. Instrument: Manufacturer: Instrumentation who desire additional information may Ultrasonic Linear Piezo Stage and Technologies D.D., Solvenia. Intended contact the Regional Program Unit at controller. Manufacturer: Xeryon, Use: See Notice at 85 FR 66305, October 202–809–9618. Belgium. Intended Use: See Notice at 85 19, 2020. Comments: None received. FR 66305, October 19, 2020. Comments: Records generated from this meeting Decision: Approved. We know of no None received. Decision: Approved. We may be inspected and reproduced at the instruments of equivalent scientific know of no instruments of equivalent Regional Programs Unit Office, as they value to the foreign instruments scientific value to the foreign become available, both before and after described below, for such purposes as instruments described below, for such the meeting. Records of the meeting will this is intended to be used, that were purposes as this is intended to be used, be available via https:// being manufactured in the United States that were being manufactured in the www.facadatabase.gov/FACA/apex/ at the time of order. Reasons: According United States at the time of order. FACAPublicCommittee?id=a10t0000001 to the applicant, the instrument will be Reasons: According to the applicant, the gzmAAAQ under the Commission on used to study precision measurement instrument will be used to study Civil Rights, New York Advisory for the particle beam position in the automatic and large-scale surgical Committee link. Persons interested in Advanced Photon Source Upgrade implantation of nanoelectrode threads the work of this Committee are also storage ring. The measurement into rodent and primate brains. directed to the Commission’s website, information is used to steer the particle Specifically, a platform is developed http://www.usccr.gov, or may contact beam and photon beam that will be used that can insert 8 ultraflexible the Regional Programs Unit office at the as a three-dimensional X-ray nanoelectrode threads (uNETs) into the above email or phone number. microscope for experimental purposes. brain simultaneously and The materials/phenomena include Agenda independently, while each insertion site material properties analysis, protein is flexibly defined by the surgeons’ and I. Welcome and Roll Call mapping for pharmaceutical companies, researchers’ need and can be precisely X-ray imaging and chemical II. Approval of Minutes from Last researched by micromanipulators. composition determination and many Meeting Successful development of this others, but are not limited to grain III. Discussion: Evictions in New York technology will significantly reduce the structure, grain boundary and IV. Public Comment time, errors and tissue trauma during interstitial defects and morphology. V. Next Steps brain surgery, meanwhile, it will open These properties are not only studied at VI. Adjournment opportunities such as slow-speed ambient environments, but also under

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high pressure, temperature, stress and protein mapping for pharmaceutical year (sunset) reviews of the AD and strain. companies, X-ray imaging and chemical CVD orders on OCTG from China,3 Docket Number: 20–006. Applicant: composition determination to name a pursuant to section 751(c) of the Tariff University of Chicago Argonne LLC, few. The properties of the materials are Act of 1930, as amended (the Act). As Operator of National Laboratory 9700 not limited to grain structure, grain a result of its reviews, Commerce South Cass Avenue, Lemont, IL 60439– boundary and interstitial defects and determined that revocation of the 4873. Instrument: Canted Undulator morphology. These properties are Orders on OCTG from China would GRID Masks. Manufacturer: Strumenti studied at ambient environments but likely lead to continuation or recurrence Scientific CINEL S.R.L., Italy. Intended also under high pressure, temperature, of dumping and countervailable Use: See Notice at 85 FR 66305, October stress and strain. subsidies. Therefore, Commerce notified 19, 2020. Comments: None received. Dated: November 20, 2020. the ITC of the magnitude of the margins Decision: Approved. We know of no Richard Herring, of dumping and the subsidy rates likely instruments of equivalent scientific to prevail should the Orders be revoked, value to the foreign instruments Acting Director, Subsidies Enforcement, Enforcement and Compliance. pursuant to sections 751(c)(1) and described below, for such purposes as 752(b) and (c) of the Act.4 this is intended to be used, that were [FR Doc. 2020–26620 Filed 12–2–20; 8:45 am] On November 27, 2020, the ITC being manufactured in the United States BILLING CODE 3510–DS–P published its determination that at the time of order. Reasons: According revocation of the Orders on OCTG from to the applicant, the instrument will be DEPARTMENT OF COMMERCE China would likely lead to continuation used to study and assemble the new or recurrence of material injury to an canted undulator front ends for the International Trade Administration industry in the United States within a Advanced Photon Source upgrade. The reasonably foreseeable time, pursuant to front end consists of a series of [A–570–943, C–570–944] section 751(c) of the Act.5 components that connect the storage Certain Oil Country Tubular Goods Scope of the Orders ring to the user beamline in order to From the People’s Republic of China: deliver a photon beam that will be used The scope of these orders consists of Continuation of the Antidumping and as a three-dimensional X-ray certain OCTG, which are hollow steel Countervailing Duty Orders microscope for experimental purposes. products of circular cross-section, The materials/phenomena vary widely AGENCY: Enforcement and Compliance, including oil well casing and tubing, of from material properties analysis, International Trade Administration, iron (other than cast iron) or steel (both protein mapping for pharmaceutical Department of Commerce. carbon and alloy), whether seamless or companies, X-ray imaging and chemical SUMMARY: The Department of Commerce welded, regardless of end finish (e.g., composition determination to name a (Commerce) and the International Trade whether or not plain end, threaded, or few. The properties of the materials are Commission (ITC) have determined that threaded and coupled) whether or not not limited to grain structure, grain revocation of the antidumping duty conforming to American Petroleum boundary and interstitial defects and (AD) and the countervailing duty (CVD) Institute (API) or non-API morphology. These properties are orders on certain oil country tubular specifications, whether finished studied at ambient environments but goods (OCTG) from the People’s (including limited service OCTG also under high pressure, temperature, Republic of China (China) would likely products) or unfinished (including stress and strain. lead to continuation or recurrence of green tubes and limited service OCTG Docket Number: 20–007. Applicant: dumping, countervailable subsidies, and products), whether or not thread University of Chicago Argonne LLC, material injury to an industry in the protectors are attached. The scope of Operator of National Laboratory 9700 United States. Therefore, Commerce is these orders also covers OCTG coupling stock. Excluded from the scope of these South Cass Avenue, Lemont, IL 60439– publishing a notice of continuation of orders are casing or tubing containing 4873. Instrument: Canted Undulator the AD and CVD orders. Premasks and Exit Masks. 10.5 percent or more by weight of DATES: Applicable December 3, 2020. Manufacturer: Strumenti Scientific chromium; drill pipe; unattached CINEL S.R.L., Italy. Intended Use: See FOR FURTHER INFORMATION CONTACT: couplings; and unattached thread Notice at 85 FR 66305, October 19, Moses Song or Natasia Harrison (AD protectors. 2020. Comments: None received. Order), AD/CVD Operations, Office VI, The merchandise covered by these Decision: Approved. We know of no or Dusten Hom or Mary Kolberg (CVD orders is currently classified in the instruments of equivalent scientific Order), AD/CVD Operations, Office I, value to the foreign instruments Enforcement and Compliance, 3 See Certain Oil Country Tubular Goods from the described below, for such purposes as International Trade Administration, People’s Republic of China: Amended Final U.S. Department of Commerce, 1401 Determination of Sales at Less Than Fair Value and this is intended to be used, that were Antidumping Duty Order, 75 FR 28551 (May 21, being manufactured in the United States Constitution Avenue NW, Washington, 2010); see also Certain Oil Country Tubular Goods at the time of order. Reasons: According DC 20230; telephone: (202) 482–7885, from the People’s Republic of China: Amended to the applicant, the instrument will be (202) 482–1240, (202) 482–5075, or Final Affirmative Countervailing Duty (202) 482–1785, respectively. Determination and Countervailing Duty Order, 75 used to study and assemble the new FR 3203 (January 20, 2010) (collectively, Orders). canted undulator front ends for the SUPPLEMENTARY INFORMATION: 4 See Certain Oil Country Tubular Goods from the Advanced Photon Source upgrade. The Background People’s Republic of China: Final Results of front end consists of a series of Expedited Second Sunset Review of the Antidumping Duty Order, 85 FR 45577 (July 29, components that connect the storage On April 1, 2020, Commerce 1 2 2020); and accompanying Issues and Decision ring to the user beamline in order to initiated, and the ITC instituted, five- Memorandum; and Certain Oil Country Tubular deliver a photon beam that will be used Goods from the People’s Republic of China: Final as a three-dimensional X-ray 1 See Initiation of Five-Year (Sunset) Review, 85 Results of the Expedited Second Sunset Review of FR 18189 (April 1, 2020). the Countervailing Duty Order, 85 FR 38849 (June microscope for experimental purposes. 2 See Oil Country Tubular Goods from China; 29, 2020). The materials/phenomena vary widely Institution of Five-Year Reviews, 85 FR 18268 (April 5 See Certain Oil Country Tubular Goods from from material properties analysis, 1, 2020). China, 85 FR 76103 (November 27, 2020).

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Harmonized Tariff Schedule of the this notice of continuation. Pursuant to Background United States (HTSUS) under item section 751(c)(2) of the Act and 19 CFR Commerce published the Preliminary numbers: 7304.29.10.10, 7304.29.10.20, 351.218(c)(2), Commerce intends to Results of the administrative review and 7304.29.10.30, 7304.29.10.40, initiate the next five-year reviews of new shipper review on February 6, 7304.29.10.50, 7304.29.10.60, these orders not later than 30 days prior 2020.1 For the events that occurred 7304.29.10.80, 7304.29.20.10, to the fifth anniversary of the effective since Commerce published the 7304.29.20.20, 7304.29.20.30, date of this continuation notice. Preliminary Results, see the Issues and 7304.29.20.40, 7304.29.20.50, Notification to Interested Parties Decision Memorandum.2 Commerce 7304.29.20.60, 7304.29.20.80, conducted these reviews in accordance 7304.29.31.10, 7304.29.31.20, These five-year sunset reviews and with section 751(a) of the Tariff Act of 7304.29.31.30, 7304.29.31.40, this notice are in accordance with 1930, as amended (the Act). 7304.29.31.50, 7304.29.31.60, section 751(c) of the Act and published Commerce tolled all deadlines in 7304.29.31.80, 7304.29.41.10, pursuant to section 777(i)(1) of the Act administrative reviews by 50 days, 7304.29.41.20, 7304.29.41.30, and 19 CFR 351.218(f)(4). thereby extending the deadline for these 7304.29.41.40, 7304.29.41.50, Dated: November 27, 2020. final results until July 27, 2020.3 On 7304.29.41.60, 7304.29.41.80, Jeffrey I. Kessler, June 5, 2020, we extended the deadline 7304.29.50.15, 7304.29.50.30, Assistant Secretary for Enforcement and for these final results to September 23, 7304.29.50.45, 7304.29.50.60, Compliance. 2020.4 On July 21, 2020, Commerce 7304.29.50.75, 7304.29.61.15, [FR Doc. 2020–26621 Filed 12–2–20; 8:45 am] tolled all deadlines in administrative 7304.29.61.30, 7304.29.61.45, 5 BILLING CODE 3510–DS–P reviews by an additional 60 days. 7304.29.61.60, 7304.29.61.75, Accordingly, the revised deadline for 7305.20.20.00, 7305.20.40.00, the final results of these reviews is now 7305.20.60.00, 7305.20.80.00, DEPARTMENT OF COMMERCE November 23, 2020. 7306.29.10.30, 7306.29.10.90, 6 7306.29.20.00, 7306.29.31.00, International Trade Administration Scope of the Order 7306.29.41.00, 7306.29.60.10, The product covered by the Order is 7306.29.60.50, 7306.29.81.10, and [A–570–970] wood flooring from China. A full 7306.29.81.50. Multilayered Wood Flooring From the The OCTG coupling stock covered by 1 People’s Republic of China: Final See Multilayered Wood Flooring from the these orders may also enter under the People’s Republic of China: Preliminary Results of Results of Antidumping Duty following HTSUS item numbers: the Antidumping Duty Administrative Review and Administrative Review and New New Shipper Review, Preliminary Determination of 7304.39.00.24, 7304.39.00.28, Shipper Review and Final No Shipments, and Rescission of Review, in Part; 7304.39.00.32, 7304.39.00.36, Determination of No Shipments; 2017– 2017–2018, 85 FR 6911 (February 6, 2020), and 7304.39.00.40, 7304.39.00.44, accompanying preliminary decision memorandum 7304.39.00.48, 7304.39.00.52, 2018 (PDM), ‘‘Decision Memorandum for the Preliminary Results of Antidumping Duty Administrative 7304.39.00.56, 7304.39.00.62, AGENCY: Enforcement and Compliance, Review and New Shipper Review: Multilayered 7304.39.00.68, 7304.39.00.72, International Trade Administration, Wood Flooring from the People’s Republic of China; 7304.39.00.76, 7304.39.00.80, Department of Commerce. 2017–2018.’’ 7304.59.60.00, 7304.59.80.15, 2 See Memorandum, ‘‘Issues and Decision SUMMARY: The Department of Commerce Memorandum: Antidumping Duty Administrative 7304.59.80.20, 7304. 9.80.25, (Commerce) determines that Dalian Review and New Shipper Review of Multilayered 7304.59.80.30, 7304.59.80.35, Qianqiu Wooden Product Co., Ltd., Wood Flooring from the People’s Republic of China; 7304.59.80.40, 7304.59.80.45, Fusong Jinlong Wooden Group Co., Ltd., 2017–2018,’’ dated concurrently with and hereby 7304.59.80.50, 7304.59.80.55, adopted by this notice (Issues and Decision Fusong Jinqiu Wooden Product Co., Memorandum). No interested party submitted 7304.59.80.60, 7304.59.80.65, Ltd., and Fusong Qianqiu Wooden comments regarding the new shipper review; 7304.59.80.70, and 7304.59.80.80. Products Co., Ltd. (collectively, Jinlong), therefore, the Issues and Decision Memorandum Although the HTSUS subheadings are pertains only to the administrative review. Jiangsu Guyu International Trading Co., 3 provided for convenience and customs Ltd. (Guyu), and Muchsee Wood See Memorandum, ‘‘Tolling of Deadlines for purposes, the written description of the Antidumping and Countervailing Duty (Chuzhou) Co., Ltd. (Muchsee Wood) Administrative Reviews in Response to Operational scope of these orders is dispositive. have not made sales of multilayered Adjustments Due to COVID–19,’’ dated April 24, wood flooring (wood flooring) from the 2020. If the new deadline falls on a weekend or a Continuation of the Orders Federal holiday, in accordance with our As a result of the determinations by People’s Republic of China (China) at regulations, the deadline will be moved to the next Commerce and the ITC that revocation prices below normal value during the business day. As the actual (tolled) deadline was Saturday, July 25, 2020, the next business day was of the Orders would likely lead to a period of review (POR) December 1, 2017 through November 30, 2018. In Monday, July 27, 2020. continuation or recurrence of dumping 4 addition, Commerce determines that See Memorandum, ‘‘Multilayered Wood and countervailable subsidies, as well as Flooring from the People’s Republic of China: material injury to an industry in the certain companies had no shipments Extension of Deadline for Final Results of United States, pursuant to section during the POR. Antidumping Duty Administrative Review and New DATES: Applicable December 3, 2020. Shipper Review,’’ dated June 5, 2020. As the actual 75l(d)(2) of the Act and 19 CFR (tolled) deadline was Saturday, July 25, 2020, we 351.218(a), Commerce hereby orders the FOR FURTHER INFORMATION CONTACT: extended the final results deadline 60 days from continuation of the Orders. U.S. Sergio Balbontin or Alexis Cherry, AD/ this date. 5 Customs and Border Protection will CVD Operations, Office VIII, See Memorandum, ‘‘Tolling of Deadlines for Enforcement and Compliance, Antidumping and Countervailing Duty continue to collect AD and CVD cash Administrative Reviews,’’ dated July 21, 2020. deposits at the rates in effect at the time International Trade Administration, 6 See Multilayered Wood Flooring from the of entry for all imports of subject U.S. Department of Commerce, 1401 People’s Republic of China: Notice of Amended merchandise. Constitution Avenue NW, Washington Final Affirmative Determination of Sales at Less DC 20230; telephone: 202–482–6478 than Fair Value and Antidumping Duty Order, 76 The effective date of the continuation FR 76690 (December 8, 2011), as amended in of the Orders will be the date of and 202–482–0607, respectively. Multilayered Wood Flooring from the People’s publication in the Federal Register of SUPPLEMENTARY INFORMATION: Republic of China: Amended Antidumping and

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description of the scope of the Order is Separate Rates and producers individually contained in the Issues and Decision investigated.’’ 12 Memorandum. In the Preliminary Results, we determined that Jinlong, Guyu, Muchsee For the final results of this review, we Analysis of Comments Received Wood, and several additional continue to determine the estimated All issues raised in the parties’ briefs companies who were not selected for dumping margin for each of the are addressed in the Issues and Decision individual review demonstrated their individually examined respondents to Memorandum. A list of these issues is eligibility for separate rates, and we be zero. Thus, consistent with the attached to this notice.7 The Issues and continue to do so in these final results.10 Preliminary Results, we assigned to all eligible non-selected respondents the Decision Memorandum is a public Rate for Non-Examined Separate Rate document and is on file electronically zero margin assigned to Jinlong and Respondents 13 via Enforcement and Compliance’s Guyu. Antidumping and Countervailing Duty The statute and our regulations do not The China-Wide Entity Centralized Electronic Service System address the establishment of a rate to be (ACCESS). ACCESS is available to assigned to respondents not selected for Aside from the companies for which registered users at http:// individual examination when we limit we made a final no shipment access.trade.gov. In addition, a complete our examination of companies subject to determination, Commerce considers all version of the Issues and Decision the administrative review pursuant to other companies for which a review was Memorandum can be accessed directly section 777A(c)(2)(B) of the Act. requested and which did not on the internet at http:// Generally, we look to section 735(c)(5) demonstrate separate rate eligibility to enforcement.trade.gov/frn/index.html. of the Act, which provides instructions be part of the China-wide entity.14 For The signed Issues and Decision for calculating the all-others rate in an the final results of this administrative Memorandum and electronic version of investigation, for guidance when review, we consider 17 companies to be the Issues and Decision Memorandum calculating the rate for respondents not part of the China-wide entity. are identical in content. individually examined in an Final Results of Administrative Review Changes From the Preliminary Results administrative review. Under section 735(c)(5)(A) of the Act, the all-others Based on our analysis of the For the companies subject to this rate is normally ‘‘an amount equal to the administrative review, including the comments received, Commerce made weighted average of the estimated certain revisions to the calculations of companies that established their weighted average dumping margins eligibility for a separate rate, Commerce the rates assigned to Jinlong, Guyu, and established for exporters and producers the non-examined, separate rate determines that the following weighted- individually investigated, excluding any average dumping margins exist for the respondents. The Issues and Decision zero and de minimis margins, and any Memorandum contains descriptions of { period December 1, 2017, through margins determined entirely on the November 30, 2018: these revisions. basis of facts available}’’ Accordingly, Final Determination of No Shipments Commerce’s usual practice in Weighted- determining the rate for separate-rate In the Preliminary Results, Commerce average respondents not selected for individual Producer/exporter dumping determined that certain companies did examination, has been to average the margin not have shipments of subject weighted-average dumping margins for (percent) merchandise during the POR. As we the selected companies, excluding rates Dalian Qianqiu Wooden received no information to contradict that are zero, de minimis, or based our preliminary determination with Product Co., Ltd./Fusong entirely on facts available.11 However, respect to those companies, we continue Jinlong Wooden Group when the weighted-average dumping Co., Ltd./Fusong Jinqiu to find that they made no shipments of margins established for all individually Wooden Product Co., Ltd./ subject merchandise to the United investigated respondents are zero, de Fusong Qianqiu Wooden States during the POR. Based on minimis, or based entirely on facts Products Co., Ltd. information received since the 15 available, section 735(c)(5)(B) of the Act (Jinlong) ...... 0.00 Preliminary Results, we determine that permits Commerce to ‘‘use any Jiangsu Guyu International one additional company, Guangzhou Trading Co., Ltd ...... 0.00 reasonable method to establish the Homebon Timber Manufacturing Co., Non-Selected Companies estimated all-others rate for exporters Ltd., also did not have shipments during Under Review Receiving a and producers not individually the POR.8 Separate Rate 16 ...... 0.00 We will issue appropriate investigated, including averaging the instructions that are consistent with our estimated weighted average dumping Final Results of New Shipper Review ‘‘automatic assessment’’ clarification for margins determined for the exporters all of the companies listed in Appendix II.9 Commerce determines that the 10 See Preliminary Results, and Preliminary following weighted-average dumping Decision Memorandum at the ‘‘Separate Rates’’ margin exists for the new shipper Countervailing Duty Orders, 77 FR 5484 (February section; see also Issues and Decision Memorandum 3, 2012) (collectively, Order). See also Multilayered at Comment 5. review covering the period December 1, Wood Flooring from the People’s Republic of China: 11 See Longkou Haimeng Mach. Co. v. United 2017 through November 30, 2018: Final Clarification of the Scope of the Antidumping States, 581 F. Supp. 2d 1344, 1357–60 (CIT 2008) and Countervailing Duty Orders, 82 FR 27799 (June (affirming Commerce’s determination to assign a 12 See Albemarle Corp. v. United States, 821 F.3d 19, 2017). 4.22 percent dumping margin to the separate-rate 7 1345 (Fed. Cir. 2016). See Appendix I. respondents in a segment where the three 13 8 See Issues and Decision Memorandum at mandatory respondents received dumping margins See Preliminary Results, and accompanying Comment 11. of 4.22 percent, 0.03 percent, and zero percent, Preliminary Decision Memorandum at 17. 9 See Non-Market Economy Antidumping respectively); see also Certain Kitchen Appliance 14 See Appendix III. Proceedings: Assessment of Antidumping Duties, Shelving and Racks from the People’s Republic of 15 See Issues and Decision Memorandum at 76 FR 65694 (October 24, 2011) (Assessment China: Final Determination of Sales at Less Than ‘‘Section IV. Affiliation and Single Entity.’’ Notice); see also ‘‘Assessment Rates’’ section below. Fair Value, 74 FR 36656, 36660 (July 24, 2009). 16 See Appendix IV.

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Weighted- for shipments of the subject Dated: November 20, 2020. average merchandise from China entered, or Joseph A. Laroski Jr., Producer/exporter dumping withdrawn from warehouse, for Deputy Assistant Secretary for Policy and margin (percent) consumption on or after the publication Negotiations. date, as provided by sections Appendix I Muchsee Wood (Chuzhou) 751(a)(2)(C) of the Act: (1) For Co., Ltd ...... 0.00 companies which have a separate rate, List of Topics Discussed in the Issues and Decision Memorandum the cash deposit rate will be zero; (2) for We intend to disclose the calculations previously investigated or reviewed 1. Summary performed within five days of the date 2. Background Chinese and non-Chinese exporters that of publication of this notice to parties in 3. Scope of the Order received a separate rate in a prior this proceeding, in accordance with 19 4. Affiliation and Single Entity CFR 351.224(b). segment of this proceeding, the cash 5. Changes from the Preliminary Results deposit rate will continue to be the 6. Discussion of the Issues Assessment Rates existing exporter-specific rate; (3) for all General Issues Chinese exporters of subject Comment 1: Whether to Revise the Pursuant to section 751(a)(2)(C) of the Surrogate Financial Ratios Act and 19 CFR 351.212(b), Commerce merchandise that have not been found Comment 2: Whether to Revise the will determine, and U.S. Customs and to be entitled to a separate rate, the cash Surrogate Value for Labor Border Protection (CBP) shall assess, deposit rate will be that for the China- Comment 3: Whether to Revise the antidumping duties on all appropriate wide entity; and (4) for all non-Chinese Surrogate Value for Inland Freight entries of subject merchandise in exporters of subject merchandise which Comment 4: Whether to Revise the accordance with the final results of have not received their own rate, the Surrogate Value for Glue these reviews. We intend to issue Guyu Issues cash deposit rate will be the rate Comment 5: Whether to Continue to Assign assessment instructions to CBP 15 days applicable to the Chinese exporter that a Separate Rate to Guyu after the date of publication of these supplied that non-Chinese exporter. Comment 6: Whether to Revise the final results. These cash deposit requirements, when Surrogate Value for Thinner For Jinlong, Guyu, and Muchsee imposed, shall remain in effect until Comment 7: Whether to Revise the Wood, each of which have a weighted- further notice. Surrogate Value for Aluminum Paste average dumping margin of zero, we Non-Selected Company Issues will instruct CBP to liquidate the Reimbursement of Duties Comment 8: Whether Commerce Should appropriate entries without regard to Have Selected Senmao as a Voluntary antidumping duties. For entries that This notice also serves as a reminder Respondent Comment 9: Whether to Rescind the were not reported in the U.S. sales to importers of their responsibility under 19 CFR 351.402(f)(2) to file a Administrative Review as to Baroque databases submitted by the companies Comment 10: Whether Certain Companies individually examined during these certificate regarding the reimbursement Filed Proper No Shipment Certifications reviews, and for the companies that did of antidumping duties prior to Comment 11: Whether Homebon Had not qualify for a separate rate in the liquidation of the relevant entries Shipments administrative review, Commerce will during this POR. Failure to comply with Comment 12: Whether to Continue to instruct CBP to liquidate such entries at this requirement could result in Apply a Zero Dumping Margin to the the China-wide rate (i.e., 85.13 Separate Rate Companies Commerce’s presumption that 7. Recommendation percent).17 For the respondents which reimbursement of antidumping duties were not selected for individual occurred and the subsequent assessment Appendix II examination in this administrative of double antidumping duties. No Shipments review and which qualified for a separate rate, we will also instruct CBP Administrative Protective Orders Anhui Yaolong Bamboo & Wood Products Co. Ltd. to liquidate the appropriate entries This notice also serves as a reminder Armstrong Wood Products (Kunshan) Co., without regard to antidumping duties. Ltd. Consistent with Commerce’s to parties subject to administrative protective order (APO) of their Baroque Timber Industries (Zhongshan) Co., assessment practice in non-market Ltd. economy cases, for the companies responsibility concerning the return or Benxi Flooring Factory (General Partnership) which Commerce determined had no destruction of proprietary information Changzhou Hawd Flooring Co., Ltd. shipments of the subject merchandise, disclosed under APO in accordance Dunhua City Jisen Wood Industry Co., Ltd. any suspended entries made under with 19 CFR 351.305, which continues Fine Furniture (Fine Furniture (Shanghai) 19 those exporters’ case numbers (i.e., at to govern business proprietary Limited and Double F Limited) the exporters’ rates) will be liquidated at information in this segment of the Guangzhou Homebon Timber Manufacturing 18 Co., Ltd. the China-wide rate. proceeding. Timely written notification Guangzhou Panyu Kangda Board Co., Ltd. of the return or destruction of APO Cash Deposit Requirements Hangzhou Zhengtian Industrial Co., Ltd. materials, or conversion to judicial Hunchun Forest Wolf Wooden Industry Co., The following cash deposit protective order, is hereby requested. Ltd. requirements will be effective upon Failure to comply with the regulations Huzhou Jesonwood Co., Ltd. publication of these final results of and terms of an APO is a sanctionable Innomaster Home (Zhongshan) Co., Ltd. administrative and new shipper reviews violation. Jiangsu Yuhui International Trade Co., Ltd. Jiashan On-Line Lumber Co., Ltd. 17 See Multilayered Wood Flooring from the This determination is issued and Kingman Floors Co., Ltd. People’s Republic of China: Final Results of published in accordance with sections Antidumping Duty Administrative Review and 751(a)(1) and 777(i)(1) of the Act and 19 19 Commerce is only reviewing entries where Fine Final Determination of No Shipments; 2016–2017, CFR 351.221(b)(5). Furniture (Shanghai) Limited and/or Double F 84 FR 38002, 38003 (August 5, 2019). Limited was the exporter but Fine Furniture 18 For a full discussion of this practice see (Shanghai) Limited was not the producer of subject Assessment Notice. merchandise.

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Linyi Anying Wood Co., Ltd. Metropolitan Hardwood Floors, Inc. from the Sultanate of Oman and the Shandong Longteng Wood Co., Ltd. Mudanjiang Bosen Wood Industry Co., Ltd. Republic of Turkey.1 Currently, the Shanghaifloor Timber (Shanghai) Co., Ltd. Nakahiro Jyou Sei Furniture (Dalian) Co., preliminary determinations are due no Xuzhou Antop International Trade Co., Ltd. Ltd. later than December 23, 2020. Yingyi-Nature (Kunshan) Wood Industry Co., Omni Arbor Solution Co., Ltd.20 Ltd. Pinge Timber Manufacturing (Zhejiang) Co., Postponement of Preliminary Zhejiang Shuimojiangnan New Material Ltd. Determinations Technology Co., Ltd. Power Dekor Group Co., Ltd. Scholar Home (Shanghai) New Material Co., Section 703(b)(1) of the Tariff Act of Appendix III Ltd. 1930, as amended (the Act), requires China-Wide Entity Shenyang Haobainian Wooden Co., Ltd. Commerce to issue the preliminary Anhui Boya Bamboo & Wood Products Co., Sino-Maple (Jiangsu) Co., Ltd. determination in a CVD investigation Ltd. Suzhou Dongda Wood Co., Ltd. within 65 days after the date on which Chinafloors Timber (China) Co., Ltd. Tongxiang Jisheng Import and Export Co., Commerce initiated the investigation. Dalian Guhua Wooden Product Co., Ltd. Ltd. However, section 703(c)(1) of the Act Dalian Huade Wood Product Co., Ltd. Xuzhou Shenghe Wood Co., Ltd. Yekalon Industry Inc. permits Commerce to postpone the Dalian Huilong Wooden Products Co., Ltd. preliminary determination until no later Dalian Jaenmaken Wood Industry Co., Ltd. Yihua Lifestyle Technology Co., Ltd. Houzhou Chenchang Wood Co., Ltd. (successor-in-interest to Guangdong than 130 days after the date on which Jiafeng Wood (Suzhou) Co., Ltd. Yihua Timber Industry Co., Ltd.) Commerce initiated the investigation if: Linyi Bonn Flooring Manufacturing Co., Ltd. Zhejiang Dadongwu Green Home Wood Co., (A) The petitioner makes a timely Power Dekor North America Inc. Ltd. request for a postponement; or (B) Shanghai Lairunde Wood Co., Ltd. Zhejiang Fuerjia Wooden Co., Ltd Commerce concludes that the parties Shenzhenshi Huanwei Woods Co., Ltd. Zhejiang Longsen Lumbering Co., Ltd. concerned are cooperating, that the Xiamen Yung De Ornament Co., Ltd. Zhejiang Shiyou Timber Co., Ltd. investigation is extraordinarily Zhejiang Biyork Wood Co., Ltd. [FR Doc. 2020–26330 Filed 12–2–20; 8:45 am] complicated, and that additional time is Zhejiang Fudeli Timber Industry Co., Ltd BILLING CODE 3510–DS–P necessary to make a preliminary ≤Zhejiang Jiechen Wood Industry Co., Ltd. Zhejiang Simite Wooden Co., Ltd. determination. Under 19 CFR 351.205(e), the petitioner must submit a Appendix IV DEPARTMENT OF COMMERCE request for postponement 25 days or Non-Selected Companies Under Review International Trade Administration more before the scheduled date of the Receiving a Separate Rate preliminary determination and must [C–523–816, C–489–845] A&W (Shanghai) Woods Co., Ltd. state the reason for the request. Anhui Longhua Bamboo Product Co., Ltd. Commerce will grant the request unless Certain Aluminum Foil From the it finds compelling reasons to deny the Benxi Wood Company Sultanate of Oman and the Republic of Dalian Dajen Wood Co., Ltd. request.2 Dalian Deerfu Wooden Product Co., Ltd. Turkey: Postponement of Preliminary On November 23, 2020, the Dalian Jiahong Wood Industry Co., Ltd. Determinations in the Countervailing petitioners 3 in these investigations Dalian Kemian Wood Industry Co., Ltd. Duty Investigations submitted a timely request that Dalian Penghong Floor Products Co., Ltd. AGENCY: Enforcement and Compliance, Commerce postpone the preliminary Dalian Shengyu Science And Technology CVD determinations.4 According to the Development Co., Ltd. International Trade Administration, Dalian Shumaike Floor Manufacturing Co., Department of Commerce. petitioners, additional time is necessary to allow Commerce to ‘‘analyze fully the Ltd. DATES: Applicable December 3, 2020. Dalian T-Boom Wood Products Co., Ltd. questionnaire responses, request any FOR FURTHER INFORMATION CONTACT: John Dongtai Fuan Universal Dynamics, LLC necessary clarifications and determine Dunhua City Dexin Wood Industry Co., Ltd. Conniff, AD/CVD Operations, Office III the extent to which countervailable Dunhua City Hongyuan Wood Industry Co., (Sultanate of Oman); and Eliza Siordia, subsidies have benefited the Ltd. AD/CVD Operations, Office V (Republic respondents in the preliminary phase of Dunhua City Wanrong Wood Industry Co., of Turkey); Enforcement and these proceedings.’’ 5 Consistent with 19 Ltd. Compliance, International Trade CFR 351.205(e), the petitioners stated Dun Hua Sen Tai Wood Co., Ltd. Administration, U.S. Department of the reasons for requesting a Dunhua Shengda Wood Industry Co., Ltd. Commerce, 1401 Constitution Avenue Guangzhou Panyu Southern Star Co., Ltd. postponement of the preliminary NW, Washington, DC 20230; telephone: determinations, and Commerce finds no HaiLin LinJing Wooden Products, Ltd. (202) 482–1009 and (202) 482–3878, Hangzhou Hanje Tec Company Limited compelling reason to deny the request. Hunchun Xingjia Wooden Flooring Inc. respectively. Therefore, in accordance with section Huzhou Chenghang Wood Co., Ltd SUPPLEMENTARY INFORMATION: 703(c)(1)(A) of the Act, Commerce is Huzhou Fulinmen Imp. & Exp. Co., Ltd. Huzhou Sunergy World Trade Co., Ltd. Background 1 See Certain Aluminum Foil from the Sultanate Jiangsu Keri Wood Co., Ltd. On October 19, 2020, the Department of Oman and the Republic of Turkey: Initiation of Jiangsu Mingle Flooring Co., Ltd of Commerce (Commerce) initiated the Countervailing Duty Investigations, 85 FR 68287 Jiangsu Senmao Bamboo and Wood Industry (October 28, 2020). Co., Ltd. countervailing duty (CVD) 2 See 19 CFR 351.205(e). Jiangsu Simba Flooring Co., Ltd. investigations of certain aluminum foil 3 The petitioners consist of the Aluminum Jiashan HuiJiaLe Decoration Material Co., Association Trade Enforcement Working Group and Ltd. 20 In the Preliminary Results, Commerce its individual members: Gra¨nges Americas Inc., JW inadvertently identified this company as ‘‘Omni Aluminum Company, and Novelis Corporation. Jiaxing Hengtong Wood Co., Ltd. 4 Jilin Xinyuan Wooden Industry Co., Ltd. Arbor Solutions Co., Ltd.’’ See Letters from Omni See Petitioners’ Letter, ‘‘Countervailing Duty Investigations Concerning Certain Aluminum Foil Karly Wood Product Limited Arbor Solution Co., Ltd., ‘‘Multilayered Wood Flooring from the People’s Republic of China from the Sultanate of Oman and the Republic of Kember Flooring, Inc. Request for Review,’’ dated December 31, 2018, and Turkey—Petitioners’ Request to Postpone Kemian Wood Industry (Kunshan) Co., Ltd. ‘‘Multilayered Wood Flooring from China: Case Preliminary Determinations,’’ dated November 23, Lauzon Distinctive Hardwood Flooring, Inc. Brief—Omni Arbor Solution Co., Ltd.,’’ dated 2020. Linyi Youyou Wood Co., Ltd. March 10, 2020. 5 Id. at 2.

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postponing the deadline for the 2020, Commerce postponed the Commerce notes that, in making these preliminary determinations to no later preliminary determination of this findings, it relied, in part, on facts than 130 days after the date on which investigation and the revised deadline is available and, because it finds that one this investigation was initiated, i.e., now November 27, 2020.2 For a or more respondents did not act to the February 26, 2021. Pursuant to section complete description of the events that best of their ability to respond to 705(a)(1) of the Act and 19 CFR followed the initiation of this Commerce’s requests for information, it 351.210(b)(1), the deadline for the final investigation, see the Preliminary drew an adverse inference where determinations of these investigations Decision Memorandum.3 A list of topics appropriate in selecting from among the will continue to be 75 days after the discussed in the Preliminary Decision facts otherwise available.7 For further date of the preliminary determinations, Memorandum is included as Appendix information, see ‘‘Use of Facts unless postponed at a later date. II to this notice. The Preliminary Otherwise Available and Adverse Decision Memorandum is a public Inferences’’ in the Preliminary Decision Notification to Interested Parties document and is on file electronically Memorandum. This notice is issued and published via Enforcement and Compliance’s Alignment pursuant to section 703(c)(2) of the Act Antidumping and Countervailing Duty and 19 CFR 351.205(f)(1). Centralized Electronic Service System As noted in the Preliminary Decision Dated: November 27, 2020. (ACCESS). ACCESS is available to Memorandum, in accordance with Jeffrey I. Kessler, registered users at http:// section 705(a)(1) of the Act and 19 CFR 351.210(b)(4), Commerce is aligning the Assistant Secretary for Enforcement and access.trade.gov. In addition, a complete Compliance. version of the Preliminary Decision final countervailing duty (CVD) determination in this investigation with [FR Doc. 2020–26623 Filed 12–2–20; 8:45 am] Memorandum can be accessed directly the final determination in the BILLING CODE 3510–DS–P at http://enforcement.trade.gov/frn/. The signed and electronic versions of companion antidumping duty (AD) the Preliminary Decision Memorandum investigations of silicon metal from DEPARTMENT OF COMMERCE are identical in content. Iceland and Bosnia and Herzegovina based on a request made by the Scope of the Investigation 8 International Trade Administration petitioners. Consequently, the final The product covered by this CVD determination will be issued on [C–834–811] investigation is silicon metal from the same date as the final AD Silicon Metal From the Republic of Kazakhstan. For a complete description determinations in those cases, which are Kazakhstan: Preliminary Affirmative of the scope of this investigation, see currently scheduled to be issued no Countervailing Duty Determination, Appendix I. later than February 22, 2021, unless postponed. and Alignment of Final Determination Scope Comments With Final Antidumping Duty In accordance with the Preamble to All-Others Rate Determination Commerce’s regulations,4 the Initiation Sections 703(d) and 705(c)(5)(A) of AGENCY: Enforcement and Compliance, Notice set aside a period of time for the Act provide that, in the preliminary International Trade Administration, parties to raise issues regarding product determination, Commerce shall Department of Commerce. coverage (i.e., scope).5 No interested determine an estimated all-others rate SUMMARY: The Department of Commerce party commented on the scope of the for companies not individually (Commerce) preliminarily determines investigation as it appeared in the examined. This rate shall be an amount that countervailable subsidies are being Initiation Notice. equal to the weighted average of the estimated subsidy rates established for provided to producers and exporters of Methodology silicon metal from the Republic of those companies individually Kazakhstan (Kazakhstan). The period of Commerce is conducting this examined, excluding any zero and de investigation is January 1, 2019 through investigation in accordance with section minimis rates and any rates based December 31, 2019. Interested parties 701 of the Act. For each of the subsidy entirely under section 776 of the Act. are invited to comment on this programs found countervailable, Pursuant to section 705(c)(5)(A)(ii) of preliminary determination. Commerce preliminarily determines the Act, if the individual estimated countervailable subsidy rates DATES: Applicable December 3, 2020. that there is a subsidy, i.e., a financial contribution by an ‘‘authority’’ that established for all exporters and FOR FURTHER INFORMATION CONTACT: gives rise to a benefit to the recipient, producers individually examined are Justin Neuman, AD/CVD Operations, and that the subsidy is specific.6 zero, de minimis, or determined based Office V, Enforcement and Compliance, entirely on facts otherwise available, International Trade Administration, Investigation, 85 FR 45173 (July 27, 2020) Commerce may use any reasonable U.S. Department of Commerce, 1401 (Initiation Notice). method to establish the estimated Constitution Avenue NW, Washington, 2 See Silicon Metal from the Republic of subsidy rate for all other producers or DC 20230; telephone: (202) 482–0486. Kazakhstan: Postponement of Preliminary exporters. SUPPLEMENTARY INFORMATION: Determination in the Countervailing Duty Investigation, 85 FR 55412 (September 8, 2020). In this case, the countervailable Background 3 See Memorandum, ‘‘Decision Memorandum for subsidy rate calculated for the the Preliminary Determination of the This preliminary determination is Countervailing Duty Investigation of Silicon Metal of the Act regarding benefit; and section 771(5A) of made in accordance with section 703(b) from the Republic of Kazakhstan,’’ dated the Act regarding specificity. of the Tariff Act of 1930, as amended concurrently with, and hereby adopted by, this 7 See sections 776(a) and (b) of the Act. notice (Preliminary Decision Memorandum). 8 See Petitioners’ Letter, ‘‘Silicon Metal from (the Act). Commerce published the 4 See Antidumping Duties; Countervailing Duties, Kazakhstan: Petitioners’ Request for Alignment of notice of initiation of this investigation Final Rule, 62 FR 27296, 27323 (May 19, 1997) 1 Countervailing Duty Investigation Final on July 27, 2020. On September 8, (Preamble). Determination Deadline with Antidumping Duty 5 See Initiation Notice, 85 FR at 45174. Final Determination Deadlines in Silicon Metal 1 See Silicon Metal from the Republic of 6 See sections 771(5)(B) and (D) of the Act from Bosnia and Herzegovina and Silicon Metal Kazakhstan: Initiation of Countervailing Duty regarding financial contribution; section 771(5)(E) from Iceland,’’ dated October 30, 2020.

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investigated companies is based entirely by the Government of Kazakhstan, there International Trade Commission on facts available under section 776 of are no calculations to disclose. Notification the Act. However, there is no other Verification information on the record upon which In accordance with section 703(f) of to determine an all-others rate. As a Because TKT did not provide the Act, Commerce will notify the result, we have used the rate assigned to information requested by Commerce in International Trade Commission (ITC) of the mandatory respondents as the all- this investigation and Commerce its determination. If the final others rate. This method is consistent preliminarily determines that the determination is affirmative, the ITC with Commerce’s past practice.9 company has been uncooperative, will determine before the later of 120 Commerce will not conduct verification. days after the date of this preliminary Preliminary Determination Public Comment determination or 45 days after the final Commerce preliminarily determines determination whether these imports Case briefs or other written comments that the following estimated are materially injuring, or threaten may be submitted to the Assistant countervailable subsidy rates exist: material injury to, the U.S. industry. Secretary for Enforcement and Subsidy rate Compliance. A timeline for the Notification to Interested Parties Company (percent) submission of case briefs and written comments on non-scope issues will be This determination is issued and Tau-Ken Temir LLP and JSC announced at a later date. Rebuttal published pursuant to sections 703(f) NMC Tau-Ken Samruk10 .. 120.00 briefs, limited to issues raised in case and 777(i) of the Act and 19 CFR All Others ...... 120.00 briefs, may be submitted no later than 351.205(c). seven days after the deadline date for Dated: November 27, 2020. Suspension of Liquidation case briefs.11 Pursuant to 19 CFR Jeffrey I. Kessler, In accordance with section 351.309(c)(2) and (d)(2), parties who submit case briefs or rebuttal briefs in Assistant Secretary for Enforcement and 703(d)(1)(B) and (d)(2) of the Act, Compliance. Commerce will direct U.S. Customs and this investigation are encouraged to Border Protection (CBP) to suspend submit with each argument: (1) A Appendix I statement of the issue; (2) a brief liquidation of entries of subject Scope of the Investigation merchandise as described in the scope summary of the argument; and (3) a of the investigation section entered, or table of authorities. The scope of this investigation covers all withdrawn from warehouse, for Pursuant to 19 CFR 351.310(c), forms and sizes of silicon metal, including silicon metal powder. Silicon metal contains consumption on or after the date of interested parties who wish to request a at least 85.00 percent but less than 99.99 publication of this notice in the Federal hearing, limited to issues raised in the percent silicon, and less than 4.00 percent Register. Further, pursuant to 19 CFR case and rebuttal briefs, must submit a iron, by actual weight. Semiconductor grade 351.205(d), Commerce will instruct CBP written request to the Assistant Secretary for Enforcement and silicon (merchandise containing at least to require a cash deposit equal to the 99.99 percent silicon by actual weight and rates indicated above. Compliance, U.S. Department of Commerce within 30 days after the date classifiable under Harmonized Tariff Disclosure of publication of this notice. Requests Schedule of the United States (HTSUS) should contain the party’s name, subheading 2804.61.0000) is excluded from Normally, Commerce discloses to address, and telephone number, the the scope of this investigation. interested parties the calculations number of participants, whether any Silicon metal is currently classifiable performed in connection with a participant is a foreign national, and a under subheadings 2804.69.1000 and preliminary determination within five list of the issues to be discussed. If a 2804.69.5000 of the HTSUS. While the days of the public announcement of, request for a hearing is made, Commerce HTSUS numbers are provided for where there is no public announcement, intends to hold the hearing at a time and convenience and customs purposes, the within five days of the date of date to be determined. Parties should written description of the scope remains publication of the notice of preliminary confirm by telephone the date, time, and dispositive. determination in the Federal Register, location of the hearing two days before Appendix II in accordance with 19 CFR 351.224(b). the scheduled date. However, because Commerce Parties are reminded that briefs and List of Topics Discussed in the Preliminary preliminarily applied adverse facts hearing requests are to be filed Decision Memorandum available (AFA) to the individually electronically using ACCESS and that I. Summary examined company Tau-Ken Temir electronically filed documents must be II. Background LLP/JSC NMC Tau-Ken Samruk in this received successfully in their entirety by III. Scope of the Investigation investigation in accordance with section 5 p.m. Eastern Time on the due date. IV. Injury Test 776 of the Act, and the applied AFA rate Note that Commerce has temporarily V. Alignment is based solely on information provided modified certain of its requirements for VI. Use of Facts Otherwise Available and serving documents containing business Adverse Inferences 9 See, e.g., Grain-Oriented Electrical Steel from proprietary information, until further VII. Subsidies Valuation the People’s Republic of China: Final Affirmative 12 VIII. Analysis of Programs Countervailing Duty Determination, 79 FR 59221 notice. (October 1, 2014), and accompanying Issues and IX. Calculation of the All-Others Rate Decision Memorandum at Comment 1. 11 See 19 CFR 351.309; see also 19 CFR 351.303 X. Recommendation 10 As discussed in the Preliminary Decision (for general filing requirements). [FR Doc. 2020–26627 Filed 12–2–20; 8:45 am] Memorandum, Commerce has found the following 12 See Temporary Rule Modifying AD/CVD companies to be cross-owned with Tau-Ken Temir Service Requirements Due to COVID–19, 85 FR BILLING CODE 3510–DS–P LLP and JSC NMC Tau-Ken Samruk: Silicon Metal 17006 (March 26, 2020); and Temporary Rule LLP, Metallurgical Combine KazSilicon LLP, Modifying AD/CVD Service Requirements Due to National Welfare Fund ‘‘Samruk-Kazyna’’ JSC, COVID–19; Extension of Effective Period, 85 FR ‘‘Ekibastuz GRES–2 station’’ JSC, and JSC KEGOC. 41363 (July 10, 2020).

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DEPARTMENT OF COMMERCE access.trade.gov. In addition, a complete postponed or aligned with the final version of the Preliminary Decision determination of a companion AD International Trade Administration Memorandum can be accessed directly investigation of wire mesh. Accordingly, [C–201–854] at http://enforcement.trade.gov/frn/. Commerce intends to make its final The signed and electronic versions of determination no later than February 10, Standard Steel Welded Wire Mesh the Preliminary Decision Memorandum 2021, unless postponed. are identical in content. From Mexico: Preliminary Affirmative All-Others Rate Countervailing Duty Determination Scope of the Investigation Sections 703(d) and 705(c)(5)(A) of AGENCY: Enforcement and Compliance, The product covered by this the Act provide that, in the preliminary International Trade Administration, investigation is wire mesh from Mexico. determination, Commerce shall Department of Commerce. For a complete description of the scope determine an estimated all-others rate SUMMARY: The Department of Commerce of this investigation, see Appendix I. for companies not individually examined. This rate shall be an amount (Commerce) preliminarily determines Scope Comments that countervailable subsidies are being equal to the weighted average of the provided to producers and exporters of In accordance with the preamble to estimated subsidy rates established for standard steel welded wire mesh (wire Commerce’s regulations,4 the Initiation those companies individually mesh) from Mexico. The period of Notice set aside a period of time for examined, excluding any zero and de investigation is January 1, 2019 through parties to raise issues regarding product minimis rates and any rates based December 31, 2019. Interested parties coverage (i.e., scope).5 Certain interested entirely under section 776 of the Act. In are invited to comment on this parties commented on the scope of the this investigation, Commerce preliminary determination. investigation as it appeared in the preliminarily assigned a rate based Initiation Notice. For a summary of the DATES: Applicable December 3, 2020. entirely on facts available to Deacero product coverage and rebuttal S.A.P.I. de C.V. Therefore, the only rate FOR FURTHER INFORMATION CONTACT: Ian comments submitted on the record for that is not zero, de minimis, or based Hamilton, AD/CVD Operations, Office this investigation, see the Preliminary entirely on facts otherwise available is II, Enforcement and Compliance, Decision Memorandum. Commerce has the rate calculated for Aceromex S.A. De International Trade Administration, not modified the scope language as it C.V. (Aceromex). Consequently, the rate U.S. Department of Commerce, 1401 appeared in the Initiation Notice. calculated for Aceromex is also assigned Constitution Avenue NW, Washington, as the rate for all other producers and DC 20230; telephone: (202) 482–4798. Methodology exporters. SUPPLEMENTARY INFORMATION: Commerce is conducting this investigation in accordance with section Preliminary Determination Background 701 of the Act. For each of the subsidy Commerce preliminarily determines This preliminary determination is programs found countervailable, that the following estimated made in accordance with section 703(b) Commerce preliminarily determines countervailable subsidy rates exist: of the Tariff Act of 1930, as amended that there is a subsidy, i.e., a financial (the Act). Commerce initiated this contribution by an ‘‘authority’’ that Company Subsidy rate investigation on July 20, 2020.1 On gives rise to a benefit to the recipient (percent) September 9, 2020, Commerce and that the subsidy is specific.6 postponed the preliminary Commerce notes that, in making these Aceromex S.A. De C.V ...... 1.02 Deacero S.A.P.I. de C.V ...... 102.09 determination of this investigation and findings, it relied, in part, on facts All Others ...... 1.02 the revised deadline is now November available and, because it finds that one 27, 2020.2 For a complete description of or more respondent did not act to the Suspension of Liquidation the events that followed the initiation of best of their ability to respond to this investigation, see the Preliminary Commerce’s requests for information, it In accordance with section Decision Memorandum.3 A list of topics drew an adverse inference where 703(d)(1)(B) and (d)(2) of the Act, discussed in the Preliminary Decision appropriate in selecting from among the Commerce will direct U.S. Customs and Memorandum is included as Appendix facts otherwise available.7 For further Border Protection (CBP) to suspend II to this notice. The Preliminary information, see ‘‘Use of Facts liquidation of entries of subject Decision Memorandum is a public Otherwise Available and Adverse merchandise as described in the scope document and is on file electronically Inferences’’ in the Preliminary Decision of the investigation section entered, or via Enforcement and Compliance’s Memorandum. withdrawn from warehouse, for Antidumping and Countervailing Duty consumption on or after the date of Centralized Electronic Service System Date of Final Determination publication of this notice in the Federal (ACCESS). ACCESS is available to Section 705(a)(1) of the Act and 19 Register. Further, pursuant to 19 CFR registered users at http:// CFR 351.210(b)(1) provide that 351.205(d), Commerce will instruct CBP Commerce will issue the final to require a cash deposit equal to the 1 See Standard Steel Welded Wire Mesh from determination within 75 days after the rates indicated above. Mexico: Initiation of Countervailing Duty date of its preliminary determination, Disclosure Investigation, 85 FR 45181 (July 27, 2020). unless the final determination is 2 See Standard Steel Welded Wire Mesh from Commerce intends to disclose its Mexico: Postponement of Preliminary Determination in the Countervailing Duty 4 See Antidumping Duties; Countervailing Duties, calculations and analysis performed to Investigation, 85 FR 55640 (September 9, 2020). Final Rule, 62 FR 27296, 27323 (May 19, 1997). interested parties in this preliminary 3 See Memorandum, ‘‘Decision Memorandum for 5 See Initiation Notice. determination within five days of its the Preliminary Affirmative Countervailing Duty 6 See sections 771(5)(B) and (D) of the Act public announcement, or if there is no Determination of Standard Steel Welded Wire Mesh regarding financial contribution; section 771(5)(E) public announcement, within five days from Mexico,’’ dated concurrently with, and hereby of the Act regarding benefit; and section 771(5A) of adopted by, this notice (Preliminary Decision the Act regarding specificity. of the date of this notice in accordance Memorandum). 7 See sections 776(a) and (b) of the Act. with 19 CFR 351.224(b).

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Verification proprietary information, until further Deformed wire is wire with indentations or notice.10 raised transverse ribs, which results in wire Commerce is currently unable to that does not have a uniform cross-sectional conduct on-site verification of the International Trade Commission diameter throughout the length of the wire. information relied upon in making its Notification Rolls of subject wire mesh are produced in final determination in this investigation. In accordance with section 703(f) of the following styles and nominal width and length combinations: Accordingly, we intend to take the Act, Commerce will notify the additional steps in lieu of on-site International Trade Commission (ITC) of Style: 6 x 6 W1.4/W1.4 or D1.4/D1.4 (i.e., 10 gauge) verification. Commerce will notify its determination. If the final interested parties of any additional Roll Sizes: determination is affirmative, the ITC 5′ x 50′ documentation or information required. will determine before the later of 120 5′ x 150′ Public Comment days after the date of this preliminary 6′ x 150′ determination or 45 days after the final 5′ x 200′ Case briefs or other written comments determination whether these imports 7′ x 200′ may be submitted to the Assistant are materially injuring, or threaten 7.5′ x 200′ Secretary for Enforcement and material injury to, the U.S. industry. Style: 6 x 6 W2.1/W2.1 or D2.1/D2.1 (i.e., 8 Compliance. Interested parties will be gauge) ′ ′ notified of the timeline for the Notification to Interested Parties Roll Sizes: 5 x 150 submission of case briefs and written Style: 6 x 6 W2.9/W2.9 or D2.9/D2.9 (i.e., 6 This determination is issued and gauge) comments at a later date. Rebuttal briefs, published pursuant to sections 703(f) Roll Sizes: limited to issues raised in case briefs, and 777(i) of the Act and 19 CFR 5′ x 150′ may be submitted no later than seven 351.205(c). 7′ x 200′ days after the deadline date for case Dated: November 27, 2020. All rolled wire mesh is included in scope 8 regardless of length. briefs. Pursuant to 19 CFR Jeffrey I. Kessler, 351.309(c)(2) and (d)(2), parties who Sheets of subject wire mesh are produced Assistant Secretary for Enforcement and in the following styles and nominal width submit case briefs or rebuttal briefs in Compliance. this investigation are encouraged to and length combinations: submit with each argument: (1) A Appendix I Style: 6 x 6 W1.4/W1.4 or D1.4/D1.4 (i.e., 10 gauge) statement of the issue; (2) a brief Scope of the Investigation Sheet Size: summary of the argument; and (3) a The scope of this investigation covers 3′6″ x 7′ table of authorities. uncoated standard welded steel 4′ x 7′ Pursuant to 19 CFR 351.310(c), reinforcement wire mesh (wire mesh) 4′ x 7′6″ interested parties who wish to request a produced from smooth or deformed wire. 5′ x 10′ hearing, limited to issues raised in the Subject wire mesh is produced in square and 7′ x 20′ rectangular grids of uniformly spaced steel 7′6″ x 20′ case and rebuttal briefs, must submit a ′ ′ ″ written request to the Assistant wires that are welded at all intersections. 8 x 12 6 Sizes are specified by combining the spacing 8′ x 15′ Secretary for Enforcement and of the wires in inches or millimeters and the 8′ x 20′ Compliance, U.S. Department of wire cross-sectional area in hundredths of Style: 6 x 6 W2.1/W2.1 or D2.1/D2.1 (i.e., 8 Commerce, within 30 days after the date square inch or millimeters squared. Subject gauge) of publication of this notice. Requests wire mesh may be packaged and sold in rolls Sheet Size: should contain the party’s name, or in sheets. 5′ x 10′ address, and telephone number; the Subject wire mesh is currently produced to 7′ x 20′ ′ ″ ′ number of participants; whether any ASTM specification A1064/A1064M, which 7 6 x 20 covers carbon-steel wire and welded wire ′ ′ ″ participant is a foreign national; and a 8 x 12 6 reinforcement, smooth and deformed, for 8′ x 15′ list of the issues to be discussed. If a concrete in the following seven styles: 8′ x 20′ request for a hearing is made, Commerce 1. 6 x 6 W1.4/W1.4 or D1.4/D1.4 Style: 6 x 6 W2.9/W2.9 or D2.9/D2.9 (i.e., 6 intends to hold the hearing at a time and 2. 6 x 6 W2.1/W2.1 or D2.1/D2.1 gauge) date to be determined.9 Parties should 3. 6 x 6 W2.9/W2.9 or D2.9/D2.9 Sheet Size: confirm by telephone the date, time, and 4. 6 x 6 W4/W4 or D4/D4 3′6″ x 20′ location of the hearing two days before 5. 6 x 12 W4/W4 or D4/D4 5′ x 10′ ′ ′ the scheduled date. 6. 4 x 4 W2.9/W2.9 or D2.9/D2.9 7 x 20 7. 4 x 4 W4/W4 or D4/D4 7′6″ x 20′ Parties are reminded that briefs and ′ ′ ″ The first number in the style denotes the 8 x 12 6 hearing requests are to be filed ′ ′ nominal spacing between the longitudinal 8 x 15 electronically using ACCESS and that wires and the second number denotes the 8′ x 20′ electronically filed documents must be nominal spacing between the transverse Style: 6 x 12 W4/W4 or D4/D4 (i.e., 4 gauge) received successfully in their entirety by wires. In the first style listed above, for Sheet Size: 8′ x 20′ 5 p.m. Eastern Time on the due date. example, ‘‘6 x 6’’ denotes a grid size of six Style: 4 x 4 W2.9/W2.9 or D2.9/D2.9 (i.e., Note that Commerce has temporarily inches by six inches. ‘‘W’’ denotes the use of 6 gauge) smooth wire, and ‘‘D’’ denotes the use of Sheet Size: modified certain of its requirements for ′ ′ serving documents containing business deformed wire in making the mesh. The 5 x 10 number following the W or D denotes the 7′ x 20′ nominal cross-sectional area of the transverse 7′6″ x 20′ 8 See 19 CFR 351.309; see also 19 CFR 351.303 and longitudinal wires in hundredths of a 8′ x 12′6″ (for general filing requirements); Temporary Rule square inch (i.e., W1.4 or D1.4 is .014 square 8′ x 12′8′ Modifying AD/CVD Service Requirements Due to inches). 8′ x 15′ COVID–19, 85 FR 17006 (March 26, 2020) ′ ′ (Temporary Rule); and Temporary Rule Modifying Smooth wire is wire that has a uniform 8 x 20 AD/CVD Service Requirements Due to COVID–19; cross-sectional diameter throughout the Style: 4 x 4 W4/W4 or D4/D4 (i.e., 4 gauge) Extension of Effective Period, 85 FR 41363 (July 10, length of the wire. Sheet Size: 2020). 5′ x 10′ 9 See 19 CFR 351.310(c). 10 See Temporary Rule, 85 FR 41363. 8′ x 12′6″

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8′ x 12′8″ gauges, the spacing between transverse and It also permits a wire diameter tolerance of 8′ x 15′ longitudinal wires, and the length and width ± 0.003 inches for products up to W5/D5 and 8′ x 20′ combinations. To the extent a roll or sheet of ± 0.004 for sizes over W5/D5. A producer welded wire mesh falls within these may oversteel by increasing smooth or Any product imported, sold, or invoiced in permissible variations, it is within this scope. deformed wire diameter up to two whole one of these size combinations is within the ASTM specification A1064/A1064M also number size increments on Table 1 of A1064. scope. defines permissible oversteeling, which is the Subject wire mesh has the following actual ASTM specification A1064/A1064M use of a heavier gauge wire with a larger wire diameter ranges, which account for both provides for permissible variations in wire cross-sectional area than nominally specified. oversteeling and diameter tolerance:

Maximum W/D No. oversteeling Diameter range No. (inch)

1.4 (i.e., 10 gauge) ...... 3.4 0.093 to 0.211. 2.1 (i.e., 8 gauge) ...... 4.1 0.161 to 0.231. 2.9 (i.e., 6 gauge) ...... 4.9 0.189 to 0.253. 4.0 (i.e., 4 gauge) ...... 6.0 0.223 to 0.280.

To the extent a roll or sheet of welded wire Adverse Inferences Instructions: A notice of intent to mesh falls within the permissible variations VII. Subsidies Valuation attend the public hearing or to present provided above, it is within this scope. VIII. Analysis of Programs at the public hearing must include the In addition to the tolerances permitted in IX. Recommendation individual’s name, title, organization, ASTM specification A1064/A1064M, wire [FR Doc. 2020–26628 Filed 12–2–20; 8:45 am] mesh within this scope includes address, email, telephone number, and combinations where: BILLING CODE 3510–DS–P a concise summary of the subject matter 1. A width and/or length combination to be presented. Oral presentations may varies by ± one grid size in any direction, i.e., not exceed five (5) minutes. The time for ± U.S. INTERNATIONAL DEVELOPMENT 6 inches in length or width where the wire individual presentations may be mesh’s grid size is ‘‘6 x 6’’; and/or FINANCE CORPORATION 2. The center-to-center spacing between reduced proportionately, if necessary, to individual wires may vary by up to one Rescheduled Public Hearing afford all participants who have quarter of an inch from the nominal grid size submitted a timely request an specified. AGENCY: U.S. International Development opportunity to be heard. Submission of Length is measured from the ends of any Finance Corporation. written statements must include the wire and width is measured between the ACTION: Announcement of new date/ individual’s name, title, organization, center-line of end longitudinal wires. time for public hearing, previously address, email, and telephone number. Additionally, although the subject wire scheduled for December 9, 2020, 2p.m. mesh typically meets ASTM A1064/A1064M, The statement must be typewritten, the failure to include certifications, test SUMMARY: The Board of Directors of the double-spaced, and may not exceed ten reports or other documentation establishing U.S. International Development Finance (10) pages. that the product meets this specification does Corporation (‘‘DFC’’) will hold a public FOR FURTHER INFORMATION CONTACT: not remove the product from the scope. Wire hearing on December 10, 2020. This mesh made to comparable foreign Catherine F.I. Andrade, DFC Corporate hearing will afford an opportunity for specifications (e.g., DIN, JIS, etc.) or Secretary, (202) 336–8768, or any person to present views in proprietary specifications is included in the [email protected]. scope. accordance with the BUILD Act of 2018. Excluded from the scope is wire mesh that Those wishing to present at the hearing SUPPLEMENTARY INFORMATION: The is galvanized (i.e., coated with zinc) or coated must provide advance notice to the public hearing will take place via video- with an epoxy coating. In order to be agency as detailed below. Please note and teleconference. Upon registering, excluded as galvanized, the excluded welded that this hearing was originally participants and observers will be wire mesh must have a zinc coating thickness scheduled for Wednesday, December 9, provided instructions on accessing the meeting the requirements of ASTM 2020; notice of which was published in specification A641/A641M. Epoxy coating is hearing. DFC will prepare an agenda for a mix of epoxy resin and hardener that can the Federal Register on Thursday, the hearing identifying speakers, setting be applied to the surface of steel wire. November 5, 2020. forth the subject on which each Merchandise subject to this investigation DATES: Public hearing: 2:00 p.m., participant will speak, and the time are classified under Harmonized Tariff Thursday, December 10, 2020. allotted for each presentation. The Schedule of the United States (HTSUS) Deadline for notifying agency of an agenda will be available at the time of categories 7314.20.0000 and 7314.39.0000. intent to attend or present at the public the hearing. While HTSUS subheadings are provided for hearing: 5:00 p.m., Thursday, December convenience and customs purposes, the 3, 2020. Authority: 22 U.S.C. 9613(c). written description of the scope of this Deadline for submitting a written Catherine F.I. Andrade, investigation is dispositive. statement: 5:00 p.m., Thursday, Appendix II December 3, 2020. DFC Corporate Secretary. [FR Doc. 2020–26608 Filed 12–2–20; 8:45 am] List of Topics Discussed in the Preliminary ADDRESSES: Public hearing: Virtual; BILLING CODE 3210–02–P Decision Memorandum Access information provided at the time I. Summary of attendance registration. II. Background You may send notices of intent to III. Scope of the Investigation attend, present, or submit a written IV. Scope Comments statement to Catherine F. I. Andrade, V. Injury Test DFC Corporate Secretary, via email at VI. Use of Facts Otherwise Available and [email protected].

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DEPARTMENT OF EDUCATION bylaws for FACA boards/committees, have Adobe Acrobat Reader, which is and (4) update on FACA boards/ available free at the site. You also may Meeting of the National Advisory committees and the election of boards/ access documents of the Department Council on Indian Education (NACIE) committees. published in the Federal Register by using the article search feature at: AGENCY: National Advisory Council on Instructions for Accessing the Meeting www.federalregister.gov. Specifically, Indian Education (NACIE), Department Members of the public may access the through the advanced search feature at of Education. NACIE meeting by dial-in listen only this site, you can limit your search to ACTION: Notice of an open meeting. access. Up to 100 lines will be available documents published by the to participants of on a first come, first Department. SUMMARY: Notice of this meeting is serve basis. The dial-in phone number required by the Federal Advisory for the teleconference meeting is 1–408– Authority: § 6141 of the Elementary and Secondary Education Act of 1965 (ESEA) as Committee Act (FACA) and is intended 650–3123 and the participant code is to notify members of the public of an amended by Every Student Succeeds Act 604–247–301. (ESSA) (20 U.S.C. 7471). upcoming NACIE open teleconference Public Comment: Members of the meeting. public interested in submitting written Frank Brogan, DATES: The NACIE open teleconference comments pertaining to the work of Assistant Secretary, Office of Elementary and meeting will be held on December 18, NACIE may do so via email to Secondary Education. 2020 from 2:00–4:00 p.m. (EST). [email protected]. Please note, [FR Doc. 2020–26624 Filed 12–2–20; 8:45 am] written comments should pertain to the FOR FURTHER INFORMATION CONTACT: BILLING CODE 4000–01–P Angela Hernandez, Designated Federal work of NACIE and/or the Office of Indian Education. Official, Office of Elementary and Reasonable Accommodations: The DEPARTMENT OF EDUCATION Secondary Education (OESE)/Office of teleconference meeting is accessible to [ED–2020–FSA–0086] Indian Education (OIE), U.S. individuals with disabilities. If you will Department of Education, 400 Maryland need an auxiliary aid or service for the Privacy Act of 1974; Matching Program Avenue SW, Room 3W113, Washington, meeting (e.g., interpreting service, DC 20202. Telephone: 202–205–1909, assistive listening device, or materials in AGENCY: Department of Education. Email: [email protected]. an alternate format), notify the contact ACTION: Notice of a new Computer SUPPLEMENTARY INFORMATION: Statutory person listed in this notice not later Matching Agreement (CMA). Authority and Function: NACIE is than Monday, November 30, 2020. authorized by Section 6141 of the Although we will attempt to meet a SUMMARY: This document provides Elementary and Secondary Education request received after that date, we may notice of a new CMA between the Act of 1965. NACIE is established not be able to make available the Department of Education (ED) and the within the U.S. Department of requested auxiliary aid or service Department of Justice (DOJ). The current Education to advise the Secretary of because of insufficient time to arrange 18-month CMA was recertified for an Education (Secretary) and the Secretary it. additional 12 months on January 2, 2020 of Interior on the funding and Access to Records of the Meeting: The and will automatically expire on administration (including the Department will post the official open January 1, 2021. development of regulations, and meeting report of this meeting on the DATES: Submit your comments on the administrative policies and practices) of OESE website at: https://oese.ed.gov/ proposed CMA on or before January 4, any program over which the Secretary offices/office-of-indian-education/ 2021. has jurisdiction and includes Indian national-advisory-council-on-indian- The CMA will be effective the later of: children or adults as participants or that education-oie/ 21 days after the (1) January 2, 2021, or (2) January 4, may benefit Indian children or adults, meeting. Pursuant to the FACA, the 2021, unless comments have been including any program established public may also inspect NACIE records received from interested members of the under Title VI, Part A of the Elementary at the Office of Indian Education, public requiring modification and and Secondary Education Act. In United States Department of Education, republication of the notice. The CMA addition, NACIE advises the White 400 Maryland Avenue SW, Washington, will continue for 18 months after the House Initiative on American Indian DC 20202, Monday-Friday, 8:30 a.m. to effective date of the CMA and may be and Alaska Native Education, in 5:00 p.m. Eastern Time. Please email extended for an additional 12 months accordance with Section 5(a) of [email protected] to schedule thereafter, if the conditions specified in Executive Order 13592. NACIE submits an appointment. Our ability to provide 5 U.S.C. 552a(o)(2)(D) have been met. to the Congress each year a report on its an inspection opportunity is limited to ADDRESSES: Submit your comments activities that includes potential novel coronavirus (COVID–19) through the Federal eRulemaking Portal recommendations that are considered restrictions. or via postal mail, commercial delivery, appropriate for the improvement of Electronic Access to This Document: or hand delivery. We will not accept Federal education programs that include The official version of this document is comments submitted by fax or by email Indian children or adults as participants the document published in the Federal or those submitted after the comment or that may benefit Indian children or Register. Free internet access to the period. To ensure that we do not receive adults, and recommendations official edition of the Federal Register duplicate copies, please submit your concerning the funding of any such and the Code of Federal Regulations is comments only once. In addition, please program. available via the Federal Digital System include the Docket ID at the top of your Meeting Agenda: The purpose of the at: www.gpo.gov/fdsys. At this site you comments. meeting is to convene NACIE to conduct can view this document, as well as all • Federal eRulemaking Portal: Go to the following business: (1) Approve the other documents of this Department www.regulations.gov to submit your draft annual report to Congress, (2) published in the Federal Register, in comments electronically. Information update regarding operating procedures text or Adobe Portable Document on using Regulations.gov, including under FACA, (3) update regarding Format (PDF). To use PDF, you must instructions for accessing agency

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documents, submitting comments, and individuals for whom benefits are Procurement Fraud Debarment viewing the docket, is available on the denied and forwards this information to Clearinghouse program (DFB/DPFD) site under the ‘‘help’’ tab. the General Services Administration database (formerly known as DEBARS) • Postal Mail, Commercial Delivery, (GSA) for inclusion in the publication that is authorized under section 5301 for or Hand Delivery: If you mail or deliver ‘‘Lists of Parties Excluded from Federal the purpose of ensuring that HEA your comments about this new CMA, Procurement or Non-procurement student financial assistance is not address them to the person listed under Programs,’’ more commonly known as awarded to individuals subject to denial FOR FURTHER INFORMATION CONTACT. the ‘‘Debarment List.’’ Federal agencies of benefits under court orders issued Privacy Note: ED’s policy is to make are required by law to consult the pursuant to the Denial of Federal all comments received from members of Debarment List, prior to the provision of Benefits Program. certain benefits. However, ED and DOJ the public available for public viewing Categories of Individuals in their entirety on the Federal have determined that, for purposes of eRulemaking Portal at verifying title IV, HEA student financial The individuals whose records are www.regulations.gov. Therefore, assistance eligibility, direct access to the included in this matching program are commenters should be careful to DFB/DPFD database would be more individuals who are the subject of include in their comments only useful than access to the GSA’s section 5301 denial of benefits court information that they wish to make Debarment List because the DFB/DPFD orders, and all students who complete a publicly available. database contains information essential Free Application for Federal Student Aid. ED receives data from the DOJ FOR FURTHER INFORMATION CONTACT: to the effective operation of the match DFB/DPFD system that is used to match Gerard Duffey, Management and that is not available in the GSA List. By matching the names, dates of birth, title IV, HEA applicant data in ED’s Program Analyst, Wanamaker Building, and SSNs in the DFB/DPFD database Central Processing System (Federal U.S. Department of Education, Federal with ED’s student financial aid records, Student Aid Application File (18–11– Student Aid, 100 Penn Square East, ED is able to identify students who do 01). Suite 509.B10, Philadelphia, PA 19107. not qualify for Federal student financial Telephone: (215) 656–3249. Categories of Records assistance pursuant to the provisions set SUPPLEMENTARY INFORMATION: We forth in the Controlled Substances Act. ED will use the Social Security provide this notice in accordance with DOJ’s system of records also contains number (SSN), date of birth, and the the Privacy Act of 1974 (5 U.S.C. 552a), information concerning the specific first two letters of an applicant’s last as amended by the Computer Matching program or programs for which benefits name for the match. These data and Privacy Protection Act of 1988 (Pub. have been denied, as well as the elements are contained in ED’s Central L. 100–503) and the Computer Matching duration of the period of ineligibility. Processing System. The DOJ DFB/DPFD and Privacy Protection Amendments of DOJ will make available for the CMA system contains the names, SSNs, dates 1990 (Pub. L. 101–508) (CMPPA); the the records of only those individuals of birth, and other identifying Office of Management and Budget who have been denied Federal benefits information regarding individuals (OMB) Final Guidance Interpreting the under one or more of the title IV, HEA convicted of Federal or State offenses Provisions of Public Law 100–503, the programs. Thus, ED avoids the cost of involving drug trafficking or possession Computer Matching and Privacy disbursing student financial assistance of a controlled substance who have been Protection Act of 1988 (54 FR 25818, funds to individuals who do not qualify denied Federal benefits by Federal or June 19, 1989); and OMB Circular A– for Federal student financial assistance, State courts. This system of records also 108, Federal Agency Responsibilities for but who would otherwise receive aid contains information concerning the Review, Reporting, and Publication had the CMA not existed. specific program or programs for which under the Privacy Act (81 FR 94424, DOJ is the lead contact agency for benefits have been denied, as well as the December 23, 2016). information related to violations of duration of the period of ineligibility. Participating Agencies section 5301 and, as such, provides this DOJ will make available for the data to ED. The 18-month CMA was matching program the records of only The Department of Education (ED) recertified for an additional 12 months those individuals who have been denied and the Department of Justice (DOJ). on January 2, 2020 and will Federal benefits under one or more of Authority for Conducting the Matching automatically expire on January 1, 2021. the title IV, HEA programs. Program Purpose(s) System(s) of Records Under section 421 (hereinafter The purpose of this matching program DOJ system of records: DFB/DPFD referred to as ‘‘section 5301’’) of the is to ensure that the requirements of (The most recent full DFB/DPFD system Controlled Substances Act (21 U.S.C. section 421 of the Controlled Substances of records notice was published in the 862), an individual convicted of a Act (originally enacted as section 5301 Federal Register on May 10, 1999, 64 Federal or State drug trafficking or of the Anti-Drug Abuse Act of 1988, FR 25071). ED system of records: possession offense may be denied, at the Pub. L. 100–690, 21 U.S.C. 853a, which Federal Student Aid Application File discretion of the court, certain Federal was amended and re-designated as (18–11–01). (The most recent ED system benefits, including those under the section 421 of the Controlled Substances of records notice was published in the Federal Student Financial Assistance Act by section 1002(d) of the Crime Federal Register on October 29, 2019, Programs authorized by title IV of the Control Act of 1990, Pub. L. 101–647) 84 FR 57856). (Note: The ED Central Higher Education Act (HEA) of 1965, as (hereinafter referred to as ‘‘section Processing System (CPS) is the ED amended (title IV, HEA student 5301’’) are met. information system that processes data financial assistance). The Denial of DOJ is the lead contact agency for from the Federal Student Aid Federal Benefits and Defense information related to section 5301 Application File.) Procurement Fraud Debarment violations and, as such, provides this Accessible Format: Individuals with Clearinghouse Programs (DFB/DPFD) data to ED. ED seeks access to the disabilities can obtain this document in database (formerly known as DEBARS) information contained in the Denial of an accessible format (e.g., braille, large collects information regarding those Federal Benefits and Defense print, audiotape, or compact disc) by

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contacting the contact person listed accordance with the Paperwork Dated: November 30, 2020. under FOR FURTHER INFORMATION Reduction Act of 1995 (PRA) (44 U.S.C. Kate Mullan, CONTACT. 3506(c)(2)(A)), provides the general PRA Coordinator, Strategic Collections and Electronic Access to This Document: public and Federal agencies with an Clearance, Governance and Strategy Division, The official version of this document is opportunity to comment on proposed, Office of Chief Data Officer, Office of the document published in the Federal revised, and continuing collections of Planning, Evaluation and Policy Register. You may access the official information. This helps the Department Development. edition of the Federal Register and the assess the impact of its information [FR Doc. 2020–26610 Filed 12–2–20; 8:45 am] Code of Federal Regulations at collection requirements and minimize BILLING CODE 4000–01–P www.govinfo.gov. At this site you can the public’s reporting burden. It also view this document, as well as all other helps the public understand the documents of this Department Department’s information collection DEPARTMENT OF ENERGY published in the Federal Register, in requirements and provide the requested text or Portable Document Format data in the desired format. ED is Federal Energy Regulatory (PDF). To use PDF you must have soliciting comments on the proposed Commission Adobe Acrobat Reader, which is information collection request (ICR) that [Project No. 12514–086] available free at the site. is described below. The Department of You may also access documents of the Education is especially interested in Northern Indiana Public Service Department published in the Federal public comment addressing the Company; Notice of Application Register by using the article search following issues: (1) Is this collection Accepted for Filing and Soliciting feature at www.federalregister.gov. necessary to the proper functions of the Comments, Motions To Intervene, and Specifically, through the advanced Department; (2) will this information be Protests search feature at this site, you can limit processed and used in a timely manner; your search to documents published by (3) is the estimate of burden accurate; Take notice that the following the Department. (4) how might the Department enhance hydroelectric application has been filed with the Commission and is available Mark Brown, the quality, utility, and clarity of the information to be collected; and (5) how for public inspection. Chief Operating Officer, Federal Student Aid. a. Application Type: Temporary [FR Doc. 2020–26478 Filed 12–1–20; 8:45 am] might the Department minimize the burden of this collection on the Variance from Reservoir Elevation. BILLING CODE 4000–01–P respondents, including through the use b. Project No.: 12514–086. of information technology. Please note c. Date Filed: November 2, 2020 and supplemented on November 24, 2020. DEPARTMENT OF EDUCATION that written comments received in response to this notice will be d. Applicant: Northern Indiana Public [Docket No.: ED–2020–SCC–0152] considered public records. Service Company. e. Name of Project: Norway Oakdale Agency Information Collection Title of Collection: Third Party Hydroelectric Project. Activities; Submission to the Office of Servicer Data Collection. f. Location: The Norway Oakdale Management and Budget for Review OMB Control Number: 1845–0130. Hydroelectric Project is located on the and Approval; Comment Request; Type of Review: A revision of a Tippecanoe River in Carroll and White Third Party Servicer Data Collection currently approved collection. Counties, Indiana. g. Filed Pursuant to: Federal Power AGENCY: Respondents/Affected Public: Private Federal Student Aid (FSA), Act, 16 U.S.C. 791 (a)–825(r). Department of Education (ED). Sector; Individuals and Households; State, Local, and Tribal Governments. h. Applicant Contact: M. Bryan Little, ACTION: Notice. Senior Counsel, NiSource Corporate Total Estimated Number of Annual Services, 150 West Market Street, Ste. SUMMARY: In accordance with the Responses: 107. Paperwork Reduction Act of 1995, ED is 600, Indianapolis, IN 46204, (317) 684– Total Estimated Number of Annual 4903. proposing a revision of a currently Burden Hours: 56. approved collection. i. FERC Contact: Zeena Aljibury, (202) Abstract: The Department of 502–6065, [email protected]. DATES: Interested persons are invited to Education (the Department) is seeking j. Deadline for filing comments, submit comments on or before January an revision of the OMB approval of a motions to intervene, and protests: 14 4, 2021. Third Party Servicer Data Form. This days from the issuance date of this ADDRESSES: Written comments and form collects information from third notice by the Commission. recommendations for proposed party servicers. This form is used to The Commission strongly encourages information collection requests should validate the information reported to the electronic filing. Please file comments, be sent within 30 days of publication of Department by higher education motions to intervene, and protests using this notice to www.reginfo.gov/public/ institutions about the third party the Commission’s eFiling system at do/PRAMain. Find this particular servicers that administer one or more http://www.ferc.gov/docs-filing/ information collection request by aspects of the administration of the Title efiling.asp. Commenters can submit selecting ‘‘Department of Education’’ IV, HEA programs on an institution’s brief comments up to 6,000 characters, under ‘‘Currently Under Review,’’ then behalf. This form also collects without prior registration, using the check ‘‘Only Show ICR for Public additional information required for eComment system at http:// Comment’’ checkbox. effective oversight of these entities. www.ferc.gov/doc-sfiling/ FOR FURTHER INFORMATION CONTACT: For There has been no change to the ecomment.asp. You must include your specific questions related to collection supporting regulatory language. We name and contact information at the end activities, please contact Beth have reevaluated the usage of the form of your comments. For assistance, Grebeldinger, 202–377–4018. and there is a resulting decrease in the please contact FERC Online Support at SUPPLEMENTARY INFORMATION: The number of respondents and burden [email protected], (866) Department of Education (ED), in hours. 208–3676 (toll free), or (202) 502–8659

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(TTY). In lieu of electronic filing, please Novel Coronavirus Disease (COVID–19), FEDERAL ELECTION COMMISSION mail a paper copy to: Secretary, Federal issued by the President on March 13, Energy Regulatory Commission, 888 2020. For assistance, contact the Federal Sunshine Act Meetings First Street NE, Washington, DC 20426. Energy Regulatory Commission at Hand delivered submissions in [email protected] or call TIME AND DATE: Tuesday, December 8, docketed proceedings should be toll-free, (886) 208–3676 or TYY, (202) 2020 at 10:00 a.m. delivered to Health and Human 502–8659. You may also register online PLACE: 1050 First Street NE, Services, 12225 Wilkins Avenue, at http://www.ferc.gov/docs-filing/ Washington, DC (This meeting will be a Rockville, Maryland 20852. The first esubscription.asp to be notified via virtual meeting). page of any filing should include docket email of new filings and issuances STATUS: This meeting will be closed to number P–12514–086. Comments related to this or other pending projects. the public. emailed to Commission staff are not For assistance, call 1–866–208–3676 or MATTERS TO BE CONSIDERED: Matters considered part of the Commission email [email protected], for concerning participation in civil actions record. TTY, call (202) 502–8659. A copy is also or proceedings or arbitration. The Commission’s Rules of Practice available for inspection and CONTACT PERSON FOR MORE INFORMATION: and Procedure require all intervenors reproduction at the address in item (h) Judith Ingram, Press Officer. Telephone: filing documents with the Commission above. Agencies may obtain copies of (202) 694–1220. to serve a copy of that document on the application directly from the each person whose name appears on the applicant. Vicktoria J. Allen, official service list for the project. m. Individuals desiring to be included Acting Deputy Secretary of the Commission. Further, if an intervenor files comments on the Commission’s mailing list should [FR Doc. 2020–26768 Filed 12–1–20; 4:15 pm] or documents with the Commission so indicate by writing to the Secretary relating to the merits of an issue that BILLING CODE 6715–01–P of the Commission. may affect the responsibilities of a particular resource agency, they must n. Comments, Motions to Intervene, or also serve a copy of the document on Protests: Anyone may submit FEDERAL RESERVE SYSTEM that resource agency. comments, a protest, or a motion to k. Description of Request: The intervene in accordance with the Change in Bank Control Notices; applicant requests Commission requirements of Rules of Practice and Acquisitions of Shares of a Bank or approval for a temporary variance from Procedure, 18 CFR 385.210, .211, .214, Bank Holding Company the reservoir elevation requirements at respectively. In determining the Lake Shafer. Due to the sever regional appropriate action to take, the The notificants listed below have drought conditions and low river flow Commission will consider all protests or applied under the Change in Bank on the Tippecanoe River, the applicant other comments filed, but only those Control Act (Act) (12 U.S.C. 1817(j)) and is operating the project under abnormal who file a motion to intervene in § 225.41 of the Board’s Regulation Y (12 river conditions and requests a variance accordance with the Commission’s CFR 225.41) to acquire shares of a bank from the allowable elevation at Lake Rules may become a party to the or bank holding company. The factors Shafer (maintain fluctuation within of proceeding. Any comments, protests, or that are considered in acting on the 0.25 feet below elevation 647.47 feet motions to intervene must be received applications are set forth in paragraph 7 NGVD) so that it can continue to meet on or before the specified comment date of the Act (12 U.S.C. 1817(j)(7)). the flow requirements from the for the particular application. The public portions of the downstream Lake Freeman development o. Filing and Service of Responsive applications listed below, as well as to protect the federally endangered Documents: Any filing must (1) bear in other related filings required by the mussel species. Although the duration all capital letters the title Board, if any, are available for of drought conditions are difficult to ‘‘COMMENTS’’, ‘‘PROTEST’’, or immediate inspection at the Federal predict, the applicant requests the ‘‘MOTION TO INTERVENE’’ as Reserve Bank(s) indicated below and at temporary variance to remain into effect applicable; (2) set forth in the heading the offices of the Board of Governors. until March 31, 2021, which is when the name of the applicant and the This information may also be obtained winter weather conditions typically project number of the application to on an expedited basis, upon request, by begin to subside and will produce which the filing responds; (3) furnish contacting the appropriate Federal sufficient flow from melting snow and the name, address, and telephone Reserve Bank and from the Board’s ice to allow Lake Shafer to return to its number of the person commenting, Freedom of Information Office at normal elevation. protesting or intervening; and (4) https://www.federalreserve.gov/foia/ l. Locations of the Application: In otherwise comply with the requirements request.htm. Interested persons may addition to publishing the full text of of 18 CFR 385.2001 through 385.2005. express their views in writing on the this document in the Federal Register, All comments, motions to intervene, or standards enumerated in paragraph 7 of the Commission provides all interested protests must set forth their evidentiary the Act. persons an opportunity to view and/or basis. Any filing made by an intervenor Comments regarding each of these print the contents of this document via must be accompanied by proof of applications must be received at the the internet through the Commission’s service on all persons listed in the Reserve Bank indicated or the offices of Home Page (http://ferc.gov) using the service list prepared by the Commission the Board of Governors, Ann E. ‘‘eLibrary’’ link. Enter the docket in this proceeding, in accordance with Misback, Secretary of the Board, 20th number excluding the last three digits in 18 CFR 385.2010. Street and Constitution Avenue NW, the docket number field to access the Washington, DC 20551–0001, not later document. At this time, the Commission Dated: November 25, 2020. than December 18, 2020. has suspended access to the Kimberly D. Bose, A. Federal Reserve Bank of New York Commission’s Public Reference Room, Secretary. (Ivan Hurwitz, Senior Vice President) 33 due to the proclamation declaring a [FR Doc. 2020–26618 Filed 12–2–20; 8:45 am] Liberty Street, New York, New York National Emergency concerning the BILLING CODE 6717–01–P 10045–0001. Comments can also be sent

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electronically to not receive comments related to the fax to (202) 395–5806. Provide written [email protected]: previous notice. This notice serves to comments within 30 days of notice 1. Basswood Capital Management, allow an additional 30 days for public publication. LLC, on behalf of itself, as investment and affected agency comments. manager to the following funds: CDC will accept all comments for this Proposed Project Basswood Opportunity Partners, LP, proposed information collection project. National Firefighter Registry—New— Basswood Financial Fund, LP, The Office of Management and Budget National Institute for Occupational Basswood Financial Long Only Fund, is particularly interested in comments Safety and Health (NIOSH), Centers for LP, Basswood Opportunity Fund, Inc. that: Disease Control and Prevention (CDC). and Basswood Financial Fund, Inc., and (a) Evaluate whether the proposed as investment adviser to certain collection of information is necessary Background and Brief Description managed accounts; Basswood Partners for the proper performance of the functions of the agency, including In order to accurately monitor trends LLC, as general partner for certain in cancer incidence and evaluate control funds; Matthew Lindenbaum and whether the information will have practical utility; measures among the U.S. Fire Service, Bennett Lindenbaum, all of New York, Congress passed the Firefighter Cancer New York; to acquire voting shares of (b) Evaluate the accuracy of the agencies estimate of the burden of the Registry Act of 2018. This legislation Esquire Financial Holdings, Inc., and directed CDC/NIOSH to create a registry thereby indirectly acquire voting shares proposed collection of information, including the validity of the of U.S. firefighters for the purpose of of Esquire Bank NA, both of Jericho, monitoring cancer incidence and risk New York. methodology and assumptions used; (c) Enhance the quality, utility, and factors among the current U.S. Fire Board of Governors of the Federal Reserve clarity of the information to be service. The legislation authorized System, November 30, 2020. collected; funding of the project for five years as Michele Taylor Fennell, (d) Minimize the burden of the of fiscal year 2019. Deputy Secretary of the Board. collection of information on those who The main goal of the National [FR Doc. 2020–26622 Filed 12–2–20; 8:45 am] are to respond, including, through the Firefighter Registry (NFR), according to BILLING CODE 6210–01–P use of appropriate automated, the Firefighter Cancer Registry Act of electronic, mechanical, or other 2018, is, ‘‘to develop and maintain a technological collection techniques or voluntary registry of firefighters to DEPARTMENT OF HEALTH AND other forms of information technology, collect relevant health and occupational HUMAN SERVICES e.g., permitting electronic submission of information of such firefighters for responses; and purposes of determining cancer Centers for Disease Control and (e) Assess information collection incidence.’’ Results from the NFR will Prevention costs. provide information for decision makers To request additional information on [30Day–21–20MT] within the fire service and medical or the proposed project or to obtain a copy public health community to devise and of the information collection plan and Agency Forms Undergoing Paperwork implement policies and procedures to instruments, call (404) 639–7570. Reduction Act Review lessen cancer risk and/or improve early Comments and recommendations for the detection of cancer among firefighters. In accordance with the Paperwork proposed information collection should Reduction Act of 1995, the Centers for be sent within 30 days of publication of The below table outlines the Disease Control and Prevention (CDC) this notice to www.reginfo.gov/public/ estimated time burden for participants has submitted the information do/PRAMain. Find this particular enrolling in the NFR. There are three collection request titled The National information collection by selecting corresponding documents to be Firefighter Registry to the Office of ‘‘Currently under 30-day Review—Open completed as part of the enrollment Management and Budget (OMB) for for Public Comments’’ or by using the process; the Informed Consent, User review and approval. CDC previously search function. Direct written Profile, and Enrollment Questionnaire. published a ‘‘Proposed Data Collection comments and/or suggestions regarding The estimated time burden for the Submitted for Public Comment and the items contained in this notice to the Informed Consent and User Profile are Recommendations’’ notice on April 27, Attention: CDC Desk Officer, Office of five minutes each, and an estimated 30 2020 to obtain comments from the Management and Budget, 725 17th minute burden for the enrollment public and affected agencies. CDC did Street NW, Washington, DC 20503 or by questionnaire.

ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Type of respondents Form name respondents responses per response respondent (in hours)

U.S. Firefighters ...... Informed Consent ...... 66,666 1 5/60 U.S. Firefighters ...... NFR User Profile (web-portal registration) ...... 66,666 1 5/60 U.S. Firefighters ...... NFR Enrollment Questionnaire ...... 66,666 1 30/60

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Jeffrey M. Zirger, of the information collection plan and In 2020, CDC issued a new funding Lead, Information Collection Review Office, instruments, call (404) 639–7570. opportunity, Public Health and Health Office of Scientific Integrity, Office of Science, Comments and recommendations for the System Partnerships to Increase Centers for Disease Control and Prevention. proposed information collection should Colorectal Cancer Screening in Clinical [FR Doc. 2020–26630 Filed 12–2–20; 8:45 am] be sent within 30 days of publication of Settings (DP20–2002), a five-year BILLING CODE 4163–18–P this notice to www.reginfo.gov/public/ cooperative agreement to increase CRC do/PRAMain. Find this particular screening among defined populations of information collection by selecting adults ages 50–75 that have CRC DEPARTMENT OF HEALTH AND ‘‘Currently under 30-day Review—Open screening rates lower than the national, HUMAN SERVICES for Public Comments’’ or by using the regional, or local rate. DP20–2002 funds search function. Direct written recipients to partner with health Centers for Disease Control and comments and/or suggestions regarding systems and their primary care clinics to Prevention the items contained in this notice to the implement multiple EBIs, partner with [30Day–21–1074] Attention: CDC Desk Officer, Office of organizations to support Management and Budget, 725 17th implementation of EBIs in those clinics, Agency Forms Undergoing Paperwork Street NW, Washington, DC 20503 or by and collect high-quality clinic-level data Reduction Act Review fax to (202) 395–5806. Provide written when a clinic is recruited to participate comments within 30 days of notice (baseline) and annually thereafter to In accordance with the Paperwork publication. monitor EBI implementation and assess Reduction Act of 1995, the Centers for screening rate changes. DP20–2002 Proposed Project Disease Control and Prevention (CDC) eliminates funding to provide direct has submitted the information Colorectal Cancer Control Program clinical service delivery. However, collection request titled Colorectal (CRCCP) Monitoring Activities (OMB DP20–2002 requires recipients to Cancer Control (CRCCP) Monitoring Control No. 0920–1074, Exp. 7/31/ conduct a formal readiness assessment Activities to the Office of Management 2020)—Reinstatement with Change— of potential clinics to implement EBIs, and Budget (OMB) for review and National Center for Chronic Disease use assessment findings to select approval. CDC previously published a Prevention and Health Promotion appropriate EBIs for implementation, ‘‘Proposed Data Collection Submitted (NCCDPHP), Centers for Disease Control and provide clinics with limited for Public Comment and and Prevention (CDC). financial resources to support follow-up Recommendations’’ notice on June 5, Background and Brief Description colonoscopies for under- and uninsured 2020 to obtain comments from the patients after an abnormal CRC public and affected agencies. CDC CDC is requesting a Reinstatement screening test. received two non-substantive public with Change to OMB Control No. 0920– CDC proposes three information comments and provided responses to 1074. CDC proposes use of a modified collections—a modified Annual each. This notice serves to allow an annual grantee survey instrument Awardee Survey, a modified Clinic- additional 30 days for public and (renamed ‘‘Annual Awardee Survey’’), a Level Data Collection Instrument, and a affected agency comments. modified clinic-level data collection new awardee-level Quarterly Program CDC will accept all comments for this instrument, and a new awardee-level Update—to reflect modified goals for proposed information collection project. Quarterly Program Update. The number the new cooperative agreement and a The Office of Management and Budget of respondents will increase from 30 to modified monitoring plan. is particularly interested in comments 35 awardees, and the total estimated The Annual Awardee Survey that: annualized burden will increase. eliminates questions related to clinic (a) Evaluate whether the proposed Colorectal cancer (CRC) is the second service delivery, which is no longer collection of information is necessary leading cause of death from cancer in funded under DP20–2002. In addition, for the proper performance of the the United States among cancers that many program management questions functions of the agency, including affect both men and women. There is were eliminated and will now be whether the information will have substantial evidence that CRC screening gathered via the Quarterly Program practical utility; reduces the incidence of and death from Update on a quarterly basis to better (b) Evaluate the accuracy of the the disease. Screening for CRC can inform CDC technical assistance (TA). agencies estimate of the burden of the detect disease early, when treatment is The survey now includes five items proposed collection of information, more effective, and prevent cancer by regarding the effect of COVID–19 on including the validity of the finding and removing precancerous CRCCP implementation at the grantee methodology and assumptions used; polyps. Of individuals diagnosed with level. (c) Enhance the quality, utility, and early stage CRC, more than 90% live The modified clinic-level data clarity of the information to be five or more years. To reduce CRC collection instrument was reorganized collected; morbidity, mortality, and associated for increased efficiency and overall data (d) Minimize the burden of the costs, use of CRC screening tests must quality improvement. In addition, collection of information on those who be increased among age-eligible adults wording and responses for many are to respond, including, through the with the lowest CRC screening rates. variables and their response options use of appropriate automated, The purpose of the Colorectal Cancer have undergone minor revisions to electronic, mechanical, or other Control Program (CRCCP) is to partner better capture awardees’ partnerships technological collection techniques or with health systems and their with both health systems and clinics, other forms of information technology, individual primary care clinics to and appropriate capture of baseline and e.g., permitting electronic submission of implement evidence-based annual variables. The instrument responses; and interventions (EBIs) to increase CRC gathers information to assess health (e) Assess information collection screening among defined populations of system and clinic characteristics; costs. adults ages 50–75 that have CRC program reach; CRC screening practices To request additional information on screening rates lower than the national, and outcomes; clinics’ quality the proposed project or to obtain a copy regional, or local rate. improvement and monitoring activities;

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EBI implementation; additional factors TA needs, and (6) COVID–19. This identify successful activities that need that affect EBI implementation over information collection will provide CDC to be maintained, replicated, or time; and the effect of COVID–19 on staff rapid reporting of programmatic expanded. CRCCP implementation at the clinic information to inform their efforts to OMB approval is requested for three level. provide awardees with tailored TA. The new Quarterly Program Update Redesigned data elements will enable years. The number of awardees will survey will collect standardized CDC to better gauge progress in meeting increase from 30 to 35 awardees, and awardee-level information on aspects of CRCCP program goals and monitor the number of clinic partners is program management, including (1) implementation activities, evaluate expected to increase from 12 to 24 per respondent information, (2) award outcomes, and identify awardee TA awardee. Therefore, the total estimated spending, (3) staff vacancies, (4) needs. In addition, data collected will annualized burden hours have increased program successes and challenges, (5) inform program improvement and help from 204 to 760 hours.

ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Type of respondent Form name respondents responses per response respondent (in hr)

CRCCP Awardees ...... CRCCP Annual Awardee Survey ...... 35 1 15/60 CRCCP Clinic-level Data Collection Instrument ...... 35 24 50/60 CRCCP Quarterly Program Update ...... 35 4 22/60

Jeffrey M. Zirger, DATES: CDC must receive written proposed collection, each proposed Lead, Information Collection Review Office, comments on or before February 1, extension of existing collection of Office of Scientific Integrity, Office of Science, 2021. information, and each reinstatement of Centers for Disease Control and Prevention. ADDRESSES: You may submit comments, previously approved information [FR Doc. 2020–26631 Filed 12–2–20; 8:45 am] identified by Docket No. CDC–2020– collection before submitting the BILLING CODE 4163–18–P 0119 by any of the following methods: collection to the OMB for approval. To • Federal eRulemaking Portal: comply with this requirement, we are Regulations.gov. Follow the instructions publishing this notice of a proposed DEPARTMENT OF HEALTH AND for submitting comments. data collection as described below. HUMAN SERVICES • Mail: Jeffrey M. Zirger, Information The OMB is particularly interested in comments that will help: Centers for Disease Control and Collection Review Office, Centers for Prevention Disease Control and Prevention, 1600 1. Evaluate whether the proposed Clifton Road NE, MS–D74, Atlanta, collection of information is necessary Georgia 30329. for the proper performance of the [60Day–21–1108; Docket No. CDC–2020– Instructions: All submissions received functions of the agency, including 0119] must include the agency name and whether the information will have Proposed Data Collection Submitted Docket Number. CDC will post, without practical utility; for Public Comment and change, all relevant comments to 2. Evaluate the accuracy of the Recommendations Regulations.gov. agency’s estimate of the burden of the Please note: Submit all comments proposed collection of information, AGENCY: Centers for Disease Control and through the Federal eRulemaking portal including the validity of the Prevention (CDC), Department of Health (regulations.gov) or by U.S. mail to the methodology and assumptions used; and Human Services (HHS). address listed above. 3. Enhance the quality, utility, and ACTION: Notice with comment period. FOR FURTHER INFORMATION CONTACT: To clarity of the information to be request more information on the collected; and SUMMARY: The Centers for Disease proposed project or to obtain a copy of 4. Minimize the burden of the Control and Prevention (CDC), as part of the information collection plan and collection of information on those who its continuing effort to reduce public instruments, contact Jeffrey M. Zirger, are to respond, including through the burden and maximize the utility of Information Collection Review Office, use of appropriate automated, government information, invites the Centers for Disease Control and electronic, mechanical, or other general public and other Federal Prevention, 1600 Clifton Road NE, MS– technological collection techniques or agencies the opportunity to comment on D74, Atlanta, Georgia 30329; phone: other forms of information technology, a proposed and/or continuing 404–639–7118; Email: [email protected]. e.g., permitting electronic submissions information collection, as required by SUPPLEMENTARY INFORMATION: Under the of responses. the Paperwork Reduction Act of 1995. Paperwork Reduction Act of 1995 (PRA) 5. Assess information collection costs. This notice invites comment on the (44 U.S.C. 3501–3520), Federal agencies Proposed Project existing information collection project must obtain approval from the Office of titled Paul Coverdell National Acute Management and Budget (OMB) for each Paul Coverdell National Acute Stroke Stroke Program (PCNASP) reporting collection of information they conduct Program (PCNASP) (OMB Control No. system, which was established to or sponsor. In addition, the PRA also 0920–1108, Exp. 09/30/2022)— improve quality of care for acute stroke requires Federal agencies to provide a Revision—National Center for Chronic patients from onset of signs and 60-day notice in the Federal Register Disease Prevention and Health symptoms through hospital care and concerning each proposed collection of Promotion (NCCDPHP), Centers for rehabilitation and recovery. information, including each new Disease Control and Prevention (CDC).

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Background and Brief Description learned during this process and other awardees’ access to data sources (GWTG Stroke is the fifth leading cause of supporting evidence in the field, it has or NEMSIS), the average burden per death in the United States and results in become evident that it is also important response will vary from 30 minutes to approximately 145,000 deaths per year. to examine pre- and post-hospital one hour. Thus, the burden for pre- Additionally, approximately 800,000 transitions of care to link the entire hospital data is estimated to decrease stroke events are reported each year, continuum of stroke care when from 60 to 46 burden hours annually. including approximately 250,000 improving QoC for stroke patients. Under scope of the new NOFO, The PCNASP’s current five-year recurrent strokes. However, many patient level quality of care post- cooperative agreement started on July 1, strokes are preventable, or patient hospital data will not be collected. Post- 2015 and includes nine state health outcomes post-stroke can be improved stroke transitions of care, rehabilitation, through coordinated care that begins at department awardees and their selected partners (hospitals, EMS agencies, other follow-up, etc. will be assessed in stroke onset and is delivered in a timely alignment with existing CDC manner. healthcare facilities). This current funding period reflects additional cooperative agreements. This is an effort Stroke outcomes depend upon the to better align resources, funding, and rapid recognition of signs and emphasis on pre-hospital quality of care as well as the post-hospital transition of community efforts already working to symptoms of stroke, prompt transport to connect stroke patients with post-acute a treatment facility, and early care setting from hospital to home or other healthcare facility. With technical clinical care. As a result, burden for this rehabilitation. Improving outcomes collection and transmission will not be requires a coordinated systems assistance provided by CDC, awardees have worked on identifying and using included in the overall estimation of approach involving pre-hospital care, average burden. emergency department and hospital data systems to systematically collect care, post-stroke rehabilitation, and report data on all three phases of Primary data collection of hospital prevention of complications, and the stroke care continuum and on inventory data will continue to be ongoing secondary prevention. Each hospital capacity. collected to understand the capacity and care setting has unique opportunities for PCNASP currently has OMB approval infrastructure of the hospitals that admit improving the quality of care provided for the collection of pre-hospital (EMS), and treat stroke patients. Each hospital and access to available professional and in-hospital, and post-hospital patient will report inventory information to its clinical care at the local level within a care data, as well as hospital inventory PCNASP awardee annually. The average coordinated state-based system of care. data (OMB Control No. 0920–1108, Exp. burden per response remains 30 In addition, there remains a need to 09/30/2022). CDC plans to request a minutes for hospitals. In addition, each identify disparities in stroke care and revision of this currently approved PCNASP awardee prepares an annual implement stroke interventions, such as collection, with an extension of three aggregate hospital inventory file for community education and quality years, reflecting a new Notice of transmission to CDC. The average improvement activities, focused on Funding Opportunity (NOFO). The new burden of reporting hospital inventory priority populations. PCNASP cooperative agreements will be information for each PCNASP awardee Through the Paul Coverdell National expanded to include 13 awardees, remains 8 hours per response. Based on Acute Stroke Program (PCNASP), CDC which will be awarded on or about July current data and expected number of has been continuously worked to 1, 2021. awardees under new NOFO, we are measure and improve acute stroke care In-hospital patient care data will estimating the number of hospital using well-known quality improvement continue to align with standards set by partners per awardee to be 50 hospitals. strategies coupled with frequent The Joint Commission (TJC) and the Due to this increase in awardees, the evaluation of results. There remains a American Heart Association’s Get With estimated number of hospital national need to understand best The Guidelines (GWTG) program. respondents is anticipated to increasing practices of stroke systems of care, Estimated burden for the collection of from 378 to 650. Thus, there is a net which includes prevention and in-hospital data will increase by a net increase of 136 hours for hospitals to awareness, use of EMS, in-hospital care, increase of eight hours due to added collect and transmit this data. The total and rehabilitation and recovery. program awardees under the new burden for hospital inventory data is PCNASP awardees work statewide with cooperative agreement. The average increasing from 189 to 325 hours participating hospitals, Emergency burden per response remains 30 annually. minutes for awardees, for a total of 26 Medical Services (EMS) agencies, and These requested changes will result in other healthcare partners (e.g., hours annually. Data collection methods for pre- a net increase in total average burden community clinical partners) to improve from 361 to 501 hours. All patient, quality of care for stroke patients. These hospital care will continue to be hospital, and EMS provider data that is efforts include implementing strategies collected similar to the two current submitted to CDC by PCNASP awardees to close the gap on stroke disparities, methods, depending on awardees’ will be de-identified and occur through identifying effective stroke treatment access to data sources. These two secure data systems. Proposed data centers, building capacity and methods are existing data systems elements and quality indicators may be infrastructure to ensure that stroke currently available to awardees, updated over time to include new or patients are routed to effective treatment including the AHA’s GWTG and the revised items based on evolving centers in a timely manner, and National Emergency Medical Services recommendations and standards in the improving transitions of care from the Information System (NEMSIS). CDC has field to improve the quality of stroke hospital to the next care setting. worked to reduce the overall number of During initial cooperative agreement required data elements and identified care. cycles, PCNASP awardees focused on areas of alignment with AHA’s GWTG. OMB approval is requested for three improving in-hospital quality of care Total average burden will decrease due years. Participation is voluntary and (QoC) with technical assistance to the reduction in data elements under there are no costs to respondents other provided by CDC. Through lessons the new NOFO. Depending on the than their time.

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ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Total burden Type of respondents Form name respondents responses per response (in hours) respondent (in hours)

PCNASP Awardee ...... Hospital inventory ...... 13 1 8 104 In-hospital care data ...... 13 4 30/60 26 Pre-hospital care data ...... 3 4 30/60 6 10 4 1 40 PCNASP Hospital Partners ...... Hospital Inventory ...... 650 1 30/60 325

Total ...... 501

Jeffrey M. Zirger, ACF is soliciting public comment on the Program offices use the information Lead, Information Collection Review Office, specific aspects of the information collected under this generic information Office of Scientific Integrity, Office of Science, collection described above. collection to: Centers for Disease Control and Prevention. ADDRESSES: Copies of the proposed • Monitor program operations and [FR Doc. 2020–26632 Filed 12–2–20; 8:45 am] collection of information can be prepare technical assistance and BILLING CODE 4163–18–P obtained and comments may be guidance, as needed. forwarded by emailing infocollection@ • Assist in the computation of the acf.hhs.gov. Alternatively, copies can grant awards issued to each program’s DEPARTMENT OF HEALTH AND also be obtained by writing to the grantees or annual incentive payments HUMAN SERVICES Administration for Children and (Child Support Enforcement Program Families, Office of Planning, Research, only). Administration for Children and and Evaluation (OPRE), 330 C Street • Determine that child support Families SW, Washington, DC 20201, Attn: ACF collections are being properly Proposed Information Collection Reports Clearance Officer. All requests, distributed (Child Support Enforcement Activity; Generic Clearance for emailed or written, should be identified Program only). • Financial Reports Used for ACF by the title of the information collection. Produce annual financial and Mandatory Grant Programs (OMB SUPPLEMENTARY INFORMATION: statistical reports as may be required by #0970–0510) Description: ACF programs need Congress and respond to periodic detailed financial information from detailed inquiries from Congress. AGENCY: Administration for Children recipients that receive federal funds, ACF may require an information and Families, HHS. such as grantees, to monitor various collection approved under this generic ACTION: Request for public comment. specialized cost categories within each from funding recipients in order to program, to closely manage program obtain or retain benefits. SUMMARY: The Administration for activities, and to have sufficient Following standard OMB Children and Families (ACF) proposes financial information to enable periodic requirements for a generic information to extend data collection under the thorough and detailed audits. collection, ACF will submit a generic existing overarching generic clearance Information collected through the information collection request for each for Financial Reports used for ACF Federal Financial Report (Standard individual data collection activity under Mandatory Grant Programs (OMB Form (SF)–425) provides general this generic clearance. Each request will #0970–0510). There are no changes to information, but does not provide include the individual form(s) and the proposed types of information program-specific information that is instructions, and a short overview of the collection or uses of data. necessary for ACF program office proposed purpose and use of the data DATES: Comments due within 60 days of decision making. This generic clearance collected. OMB should review requests publication. In compliance with the allows ACF to collect program-specific within 10 days of submission. requirements of Section 3506(c)(2)(A) of financial information from mandatory Respondents: ACF-funded mandatory the Paperwork Reduction Act of 1995, grant programs. grant programs.

ANNUAL BURDEN ESTIMATES

Average Number of Number of burden hours Annual burden Instrument respondents responses per per hours respondent response

Mandatory Grant Financial Reports ...... 1,000 4 10 40,000 Estimated Total Annual Burden Hours: 40,000.

Comments: The Department information shall have practical utility; burden of the collection of information specifically requests comments on (a) (b) the accuracy of the agency’s estimate on respondents, including through the whether the proposed collection of of the burden of the proposed collection use of automated collection techniques information is necessary for the proper of information; (c) the quality, utility, or other forms of information performance of the functions of the and clarity of the information to be technology. Consideration will be given agency, including whether the collected; and (d) ways to minimize the

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to comments and suggestions submitted of Effort for Title III and Certification of Americans Act and compliance with within 60 days of this publication. Long Term Care Ombudsman Program legislative requirements, pertinent Expenditures OMB #0985–0009. Federal regulations, and other Mary B. Jones, DATES: Submit written comments on the applicable instructions and guidelines ACF/OPRE Certifying Officer. collection of information by 11:59 p.m. issued by ACL. This information will be [FR Doc. 2020–26636 Filed 12–2–20; 8:45 am] (EST) or postmarked by January 4, 2021. used for Federal oversight of Title III BILLING CODE 4184–79–P ADDRESSES: Submit written comments Programs and Long Term Care on the collection of information by: Ombudsman Program expenditures. _ DEPARTMENT OF HEALTH AND (a) email to: OIRA submission@ Comments in Response to the 60-day HUMAN SERVICES omb.eop.gov, Attn: OMB Desk Officer Federal Register Notice for ACL; Administration for Community Living (b) fax to 202.395.5806, Attn: OMB ACL published a 60-day Federal Desk Officer for ACL; or Register Notice in the Federal Register Agency Information Collection (c) by mail to the Office of soliciting public comments on this Activities; Submission for OMB Information and Regulatory Affairs, request. The 60-day FRN published on Review; Public Comment Request; OMB, New Executive Office Bldg., 725 August 19, 2020, Volume 85, Number Certification of Maintenance of Effort 17th St. NW, Rm. 10235, Washington, 161, pages 51034–51035; ACL did not for Title III and Certification of Long DC 20503, Attn: OMB Desk Officer for receive any public comments during the Term Care Ombudsman Program ACL. 60-day FRN period. The proposed data Expenditures, OMB #0985–0009 FOR FURTHER INFORMATION CONTACT: collection tools are on the ACL website Alice Kelsey, Administration for for review and public comment, please AGENCY: Administration for Community Community Living, Washington, DC visit https://www.acl.gov/about-acl/ Living, HHS. 20201, (202) 795–7342 Alice.Kelsey@ public-input. ACTION: Notice. ACL.hhs.gov. Estimated Program Burden SUMMARY: The Administration for SUPPLEMENTARY INFORMATION: In Community Living is announcing that compliance with 44 U.S.C. 3507, ACL ACL estimates the burden associated the proposed collection of information has submitted the following proposed with this collection of information as listed above has been submitted to the collection of information to OMB for follows: 56 State Agencies on Aging Office of Management and Budget review and clearance. respond annually, and it takes each (OMB) for review and clearance as The Certification of Maintenance of agency an average of one half (.5) hour required under the Paperwork Effort under Title III and Certification of per State agency per year to complete Reduction Act of 1995. This 30-Day Long-Term Care Ombudsman (LTCO) each form for a total of twenty-eight notice collects comments on the Program Expenditures provide hours for all state agencies annually. information collection requirements statutorily required information The half hour estimate is based on prior related to the proposed information regarding each state’s contribution to years’ experience with States in collection, Certification of Maintenance programs funded under the Older completing these forms.

Responses Respondent/data collection activity Number of per Hours per Annual burden respondents respondent response hours

Certification on Maintenance of Effort under Title III ...... 56 1 .5 28 Certification of Long-Term Care Ombudsman Program Expenditures ...... 56 1 .5 28

Total ...... 112 2 1 56

Dated: November 27, 2020. ACTION: Notice. (a) Email to: OIRA_submission@ Mary Lazare, omb.eop.gov, Attn: OMB Desk Officer SUMMARY: Principal Deputy Administrator. The Administration for for ACL; Community Living is announcing that [FR Doc. 2020–26601 Filed 12–2–20; 8:45 am] (b) fax to 202.395.5806, Attn: OMB the proposed collection of information Desk Officer for ACL; or BILLING CODE 4154–01–P listed above has been submitted to the (c) by mail to the Office of Office of Management and Budget Information and Regulatory Affairs, (OMB) for review and clearance as OMB, New Executive Office Bldg., 725 DEPARTMENT OF HEALTH AND required under section 506(c)(2)(A) of 17th St. NW, Rm. 10235, Washington, HUMAN SERVICES the Paperwork Reduction Act of 1995. DC 20503, Attn: OMB Desk Officer for This 30-Day notice collects comments Administration for Community Living ACL. on the information collection FOR FURTHER INFORMATION CONTACT: Agency Information Collection requirements related to the proposed Alice Kelsey, Administration for Activities; Submission for OMB information collection, Title III Community Living, Washington, DC Review; Public Comment Request; Supplemental Form to Financial Status 20201, (202) 795–7342, Alice.Kelsey@ Report (SF–425) OMB 0985–0004. Title III Supplemental Form to Financial ACL.hhs.gov. Status Report (SF–425), OMB #0985– DATES: Submit written comments on the SUPPLEMENTARY INFORMATION: In 0004 collection of information by 11:59 p.m. compliance with 44 U.S.C. 3507, ACL (EST) or postmarked by January 4, 2021. has submitted the following proposed AGENCY: Administration for Community ADDRESSES: Submit written comments collection of information to OMB for Living, HHS. on the collection of information by: review and clearance. The Title III

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Supplemental Form to the Financial provides necessary details on non- 60-day FRN period. The proposed data Status Report (SF–425) is used by ACL/ federal required match, administration collection tools are on the ACL website AoA for all grantees to obtain a more expenditures, and Long Term Care for review and public comment, please detailed understanding of how projects Ombudsman expenditures. visit https://www.acl.gov/about-acl/ funded under Title III of the Older Comments in Response to the 60-Day public-input. Americans Act (OAA) of 1965, as Federal Register Notice amended, are being administered, and Estimated Program Burden to ensure compliance with legislative ACL published a 60-day Federal ACL estimates the burden associated requirements, pertinent Federal Register Notice in the Federal Register with this collection of information as regulations and other applicable soliciting public comments on this instructions and guidelines issued by request. The 60-day FRN published on follows: 56 State Units on Aging (SUA) the ACL. The level of data detail August 19, 2020, Volume 85, Number respond semi-annually which have an necessary is not available through the 161, pages 51033–51034; ACL did not average estimated burden of 2 hours per SF–425 form. The Supplemental Form receive any public comments during the grantee for a total of 224 hours annually.

Responses Respondent/data collection activity Number of per Hours per Annual burden respondents respondent response hours

Title III Supplemental Form to the Financial Status Report ...... 56 2 2 224

Total ...... 56 2 2 224

Dated: November 27, 2020. submission by Moderna, Inc., of a submissions) will be considered timely Mary Lazare, request for Emergency Use if they are postmarked or the delivery Principal Deputy Administrator. Authorization (EUA) for an service acceptance receipt is on or [FR Doc. 2020–26602 Filed 12–2–20; 8:45 am] investigational vaccine to prevent before that date. BILLING CODE 4154–01–P Coronavirus Disease 2019 (COVID–19) Comments received on or before and the need for prompt discussion of December 11, 2020, will be provided to such submission, given the COVID–19 the committee. Comments received after DEPARTMENT OF HEALTH AND pandemic. December 11, 2020, and by December HUMAN SERVICES DATES: Meeting date: The meeting will 16, 2020, will be taken into be held on December 17, 2020, from 9 consideration by FDA. In the event that Food and Drug Administration a.m. Eastern Time to 6 p.m. Eastern the meeting is cancelled, FDA will continue to evaluate any relevant [Docket No. FDA–2020–N–2242] Time. Comment due date: Submit either applications, submissions, or Vaccines and Related Biological electronic or written comments on this information, and consider any Products Advisory Committee; Notice public meeting by December 16, 2020. comments submitted to the docket, as of Meeting; Establishment of a Public ADDRESSES: Please note that due to the appropriate. Docket; Request for Comments impact of this COVID–19 pandemic, all You may submit comments as meeting participants will be joining this follows: AGENCY: Food and Drug Administration, advisory committee meeting via an Electronic Submissions Health and Human Services (HHS). online teleconferencing platform. ACTION: Notice; establishment of a Answers to commonly asked questions Submit electronic comments in the public docket; request for comments. including information regarding special following way: accommodations due to a disability may • Federal eRulemaking Portal: SUMMARY: The Food and Drug be accessed at: https://www.fda.gov/ https://www.regulations.gov. Follow the Administration (FDA or Agency) advisory-committees/about-advisory- instructions for submitting comments. announces a forthcoming public committees/common-questions-and- Comments submitted electronically, advisory committee meeting of the answers-about-fda-advisory-committee- including attachments, to https:// Vaccines and Related Biological meetings. The online web conference www.regulations.gov will be posted to Products Advisory Committee. The meeting will be available at the the docket unchanged. Because your general function of the committee is to following link on the day of the comment will be made public, you are provide advice and recommendations to meeting: https://fda.yorkcast.com/ solely responsible for ensuring that your the Agency on FDA’s regulatory issues. webcast/Play/5cf9198bcc0745769b39 comment does not include any The meeting will be open to the public. c699850945911d. confidential information that you or a FDA is establishing a docket for public FDA is establishing a docket for third party may not wish to be posted, comment on this document. Consistent public comment on this meeting. The such as medical information, your or with FDA’s regulations, this notice is docket number is FDA–2020–N–2242. anyone else’s Social Security number, or being published with less than 15 days The docket will close on December 16, confidential business information, such prior to the date of the meeting based on 2020. Please note that late, untimely as a manufacturing process. Please note a determination that convening a filed comments will not be considered. that if you include your name, contact meeting of the Vaccines and Related The https://www.regulations.gov information, or other information that Biological Products Advisory electronic filing system will accept identifies you in the body of your Committee as soon as possible is comments until 11:59 p.m. Eastern Time comments, that information will be warranted. This Federal Register notice at the end of December 16, 2020. posted on https://www.regulations.gov. could not be published 15 days prior to Comments received by mail/hand • If you want to submit a comment the date of the meeting due to a recent delivery/courier (for written/paper with confidential information that you

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do not wish to be made available to the the information at: https:// be found at https://www.fda.gov/ public, submit the comment as a www.govinfo.gov/content/pkg/FR-2015- emergency-preparedness-and-response/ written/paper submission and in the 09-18/pdf/2015-23389.pdf. mcm-legal-regulatory-and-policy- manner detailed (see ‘‘Written/Paper Docket: For access to the docket to framework/emergency-use- Submissions’’ and ‘‘Instructions’’). read background documents or the authorization. electronic and written/paper comments FDA intends to make background Written/Paper Submissions received, go to https:// material available to the public no later Submit written/paper submissions as www.regulations.gov and insert the than 2 business days before the meeting. follows: docket number, found in brackets in the If FDA is unable to post the background • Mail/Hand delivery/Courier (for heading of this document, into the material on its website prior to the written/paper submissions): Dockets ‘‘Search’’ box and follow the prompts meeting, background material will be Management Staff (HFA–305), Food and and/or go to the Dockets Management made publicly available on FDA’s Drug Administration, 5630 Fishers Staff, 5630 Fishers Lane, Rm. 1061, website at the time of the advisory Lane, Rm. 1061, Rockville, MD 20852. Rockville, MD 20852, 240–402–7500. committee meeting. Background • For written/paper comments FOR FURTHER INFORMATION CONTACT: material and the link to the online submitted to the Dockets Management teleconference meeting room will be Staff, FDA will post your comment, as Prabhakara Atreya or Kathleen Hayes, Center for Biologics Evaluation and available at https://www.fda.gov/ well as any attachments, except for advisory-committees/advisory- information submitted, marked and Research, Food and Drug Administration, 10903 New Hampshire committee-calendar. Scroll down to the identified, as confidential, if submitted appropriate advisory committee meeting as detailed in ‘‘Instructions.’’ Ave., Bldg. 71, Rm. 6306, Silver Spring, MD 20993–0002, 240–506–4946 or 301– link. The meeting will include slide Instructions: All submissions received presentations with audio components to must include the Docket No. FDA– 796–7864, respectively; CBERAdvisory [email protected]; or FDA allow the presentation of materials in a 2020–N–2242 for ‘‘Vaccines and Related manner that most closely resembles an Biological Products; Notice of Meeting; Advisory Committee Information Line, 1–800–741–8138 (301–443–0572 in the in-person advisory committee meeting. Establishment of a Public Docket; Procedure: Interested persons may Washington, DC area). A notice in the Request for Comments.’’ Received present data, information, or views, Federal Register about last minute comments, those filed in a timely orally or in writing, on issues pending modifications that impact a previously manner (see ADDRESSES), will be placed before the committee. All electronic and announced advisory committee meeting in the docket and, except for those written submissions submitted to the cannot always be published quickly submitted as ‘‘Confidential Docket (see ADDRESSES) on or before enough to provide timely notice. Submissions,’’ publicly viewable at December 11, 2020, will be provided to https://www.regulations.gov or at the Therefore, you should always check the the committee. Comments received after Dockets Management Staff between 9 Agency’s website at https:// December 11, 2020, and by December a.m. and 4 p.m., Monday through www.fda.gov/advisory-committees and 16, 2020, will be taken into Friday, 240–402–7500. scroll down to the appropriate advisory consideration by FDA. Oral • Confidential Submissions—To committee meeting link, or call the presentations from the public will be submit a comment with confidential advisory committee information line to scheduled between approximately 12 information that you do not wish to be learn about possible modifications p.m. Eastern Time and 1 p.m. Eastern made publicly available, submit your before joining the meeting. Time. Those individuals interested in comments only as a written/paper SUPPLEMENTARY INFORMATION: making formal oral presentations should submission. You should submit two Agenda: The meeting presentations notify the contact person and submit a copies total. One copy will include the will be heard, viewed, captioned, and brief statement of the general nature of information you claim to be confidential recorded through an online the evidence or arguments they wish to with a heading or cover note that states teleconferencing platform. The present, the names and addresses of ‘‘THIS DOCUMENT CONTAINS committee will meet in open session to proposed participants, and an CONFIDENTIAL INFORMATION.’’ FDA discuss EUA of the Moderna, Inc., indication of the approximate time will review this copy, including the COVID–19 Vaccine for the prevention of requested to make their presentation on claimed confidential information, in its COVID–19 in individuals 18 years and or before December 9, 2020. Time consideration of comments. The second older. EUA authority allows FDA to allotted for each presentation may be copy, which will have the claimed help strengthen the nation’s public limited. If the number of registrants confidential information redacted/ health protections against chemical, requesting to speak is greater than can blacked out, will be available for public biological, radiological, nuclear (CBRN) be reasonably accommodated during the viewing and posted on https:// threats by facilitating the availability scheduled open public hearing session, www.regulations.gov. Submit both and use of Medical Countermeasures FDA may conduct a lottery to determine copies to the Dockets Management Staff. (MCMs) needed during public health the speakers for the scheduled open If you do not wish your name and emergencies. Under section 564 of the public hearing session. The contact contact information be made publicly Federal Food, Drug, and Cosmetic Act person will notify interested persons available, you can provide this (21 U.S.C. 360bbb–3), FDA may allow regarding their request to speak by information on the cover sheet and not unapproved medical products or December 10, 2020. in the body of your comments and you unapproved uses of approved medical For press inquiries, please contact the must identify the information as products to be used in an emergency to Office of Media Affairs at fdaoma@ ‘‘confidential.’’ Any information marked diagnose, treat, or prevent serious or fda.hhs.gov or 301–796–4540. as ‘‘confidential’’ will not be disclosed life-threatening diseases or conditions FDA welcomes the attendance of the except in accordance with 21 CFR 10.20 caused by CBRN threat agents when public at its advisory committee and other applicable disclosure law. For certain statutory criteria have been met, meetings and will make every effort to more information about FDA’s posting including that there are no adequate, accommodate persons with disabilities. of comments to public dockets, see 80 approved, and available alternatives. If you require accommodations due to a FR 56469, September 18, 2015, or access Additional information about EUAs can disability, please contact Prabhakara

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Atreya or Kathleen Hayes (CBER 93.333, Clinical Research, 93.306, 93.333, Contact Person: Kenneth Santora, Ph.D., [email protected]) at 93.337, 93.393–93.396, 93.837–93.844, Director, Office of Extramural Activities, least 7 days in advance of the meeting. 93.846–93.878, 93.892, 93.893, National National Institute on Aging, National FDA is committed to the orderly Institutes of Health, HHS) Institutes of Health, Gateway Building, 7201 conduct of its advisory committee Dated: November 30, 2020. Wisconsin Avenue, Bethesda, MD 20814, (301) 496–9322, [email protected]. meetings. Please visit our website at: Miguelina Perez, Any interested person may file written https://www.fda.gov/advisory- Program Analyst, Office of Federal Advisory comments with the committee by forwarding committees/about-advisory-committees/ Committee Policy. the statement to the Contact Person listed on public-conduct-during-fda-advisory- [FR Doc. 2020–26606 Filed 12–2–20; 8:45 am] this notice. The statement should include the committee-meetings for procedures on BILLING CODE 4140–01–P name, address, telephone number and when public conduct during advisory applicable, the business or professional committee meetings. affiliation of the interested person. Notice of this meeting is given under DEPARTMENT OF HEALTH AND Information is also available on the the Federal Advisory Committee Act (5 HUMAN SERVICES Institute’s/Center’s home page: U.S.C. app. 2). www.nia.nih.gov/about/naca, where an National Institutes of Health agenda and any additional information for Dated: November 30, 2020. the meeting will be posted when available. Lauren K. Roth, National Institute on Aging; Notice of (Catalogue of Federal Domestic Assistance Acting Principal Associate Commissioner for Meeting Program Nos. 93.866, Aging Research, Policy. National Institutes of Health, HHS) Pursuant to section 10(d) of the [FR Doc. 2020–26704 Filed 12–1–20; 4:15 pm] Dated: November 30, 2020. BILLING CODE 4164–01–P Federal Advisory Committee Act, as amended, notice is hereby given of a Miguelina Perez, meeting of the National Advisory Program Analyst, Office of Federal Advisory Committee Policy. DEPARTMENT OF HEALTH AND Council on Aging. The meeting will be [FR Doc. 2020–26607 Filed 12–2–20; 8:45 am] HUMAN SERVICES open to the public as indicated below, with a short public comment period at BILLING CODE 4140–01–P National Institutes of Health the end. The open session will be videocast and can be accessed from the Center for Scientific Review; Notice of NIH Videocasting and Podcasting DEPARTMENT OF HOMELAND Closed Meeting website (http://videocast.nih.gov). SECURITY The meeting will be closed to the Pursuant to section 10(d) of the U.S. Customs and Border Protection Federal Advisory Committee Act, as public in accordance with the amended, notice is hereby given of the provisions set forth in sections [1651–0003] following meeting. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., The meeting will be closed to the as amended. The grant applications and Agency Information Collection public in accordance with the the discussions could disclose Activities: Transportation Entry and provisions set forth in sections confidential trade secrets or commercial Manifest of Goods Subject to CBP 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., property such as patentable material, Inspection and Permit as amended. The grant applications and and personal information concerning AGENCY: U.S. Customs and Border the discussions could disclose individuals associated with the grant Protection (CBP), Department of confidential trade secrets or commercial applications, the disclosure of which Homeland Security. property such as patentable material, would constitute a clearly unwarranted and personal information concerning invasion of personal privacy. ACTION: 30-day notice and request for individuals associated with the grant Name of Committee: National Advisory comments; extension of an existing applications, the disclosure of which Council on Aging. collection of information. would constitute a clearly unwarranted Date: January 12–13, 2021. SUMMARY: The Department of Homeland invasion of personal privacy. Closed: January 12, 2021, 3:00 p.m. to 5:00 p.m. Security, U.S. Customs and Border Name of Committee: Center for Scientific Agenda: To review and evaluate grant Protection will be submitting the Review Special Emphasis Panel; applications. following information collection request Fellowships: Infectious Diseases and Place: National Institute on Aging, to the Office of Management and Budget Microbiology. Gateway Building, 7201 Wisconsin Avenue, Date: December 10, 2020. (OMB) for review and approval in Bethesda, MD 20892 (Virtual Meeting). accordance with the Paperwork Time: 3:00 p.m. to 5:00 p.m. Open: January 13, 2021, 10:00 a.m. to 1:30 Agenda: To review and evaluate grant p.m. Reduction Act of 1995 (PRA). The applications. Agenda: Call to order and report from the information collection is published in Place: National Institutes of Health, Director; Discussion of future meeting dates; the Federal Register to obtain comments Rockledge II, 6701 Rockledge Drive, Consideration of minutes of last meeting; from the public and affected agencies. Bethesda, MD 20892 (Virtual Meeting). Reports from Task Force on Minority Aging DATES: Contact Person: Alexander D. Politis, Comments are encouraged and Research, Working Group on Program; must be submitted (no later than Ph.D., Scientific Review Officer, Center for Council Speaker; Program Highlights. Scientific Review, National Institutes of Place: National Institute on Aging, January 4, 2021) to be assured of Health, 6701 Rockledge Drive, Room 3210, Gateway Building, 7201 Wisconsin Avenue, consideration. MSC 7808, Bethesda, MD 20892, (301) 435– Bethesda, MD 20892 (Virtual Meeting). ADDRESSES: Written comments and 1150, [email protected]. Closed: January 13, 2021, 1:30 p.m. to 2:00 This notice is being published less than 15 recommendations for the proposed p.m. information collection should be sent days prior to the meeting due to the timing Agenda: To review and evaluate grant limitations imposed by the review and applications. within 30 days of publication of this funding cycle. Place: National Institute on Aging, notice to www.reginfo.gov/public/do/ (Catalogue of Federal Domestic Assistance Gateway Building, 7201 Wisconsin Avenue, PRAMain. Find this particular Program Nos. 93.306, Comparative Medicine; Bethesda, MD 20892 (Virtual Meeting). information collection by selecting

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‘‘Currently under 30-day Review—Open Overview of This Information DEPARTMENT OF HOMELAND for Public Comments’’ or by using the Collection SECURITY search function. Title: Transportation Entry and U.S. Customs and Border Protection FOR FURTHER INFORMATION CONTACT: Manifest of Goods Subject to CBP [1651–0033] Requests for additional PRA information Inspection and Permit. should be directed to Seth Renkema, OMB Number: 1651–0003. Agency Information Collection Chief, Economic Impact Analysis Form Number: 7512, 7512A. Activities: Bonded Warehouse Branch, U.S. Customs and Border Proprietor’s Submission Protection, Office of Trade, Regulations Current Actions: This submission is and Rulings, 90 K Street NE, 10th Floor, being made to extend the expiration AGENCY: U.S. Customs and Border Washington, DC 20229–1177, date with no change to the burden hours Protection (CBP), Department of Telephone number 202–325–0056 or via or to the information collected. Homeland Security. _ ACTION: 30-Day notice and request for email CBP [email protected]. Please Type of Review: Extension without comments; extension of an existing note that the contact information change. provided here is solely for questions collection of information. Affected Public: Businesses. regarding this notice. Individuals SUMMARY: The Department of Homeland Abstract: 19 U.S.C. 1552–1554 seeking information about other CBP Security, U.S. Customs and Border authorizes the movement of imported programs should contact the CBP Protection will be submitting the National Customer Service Center at merchandise from the port of following information collection request 877–227–5511, (TTY) 1–800–877–8339, importation to another Customs and to the Office of Management and Budget or CBP website at https://www.cbp. Border Protection (CBP) port prior to (OMB) for review and approval in gov/. release of the merchandise from CBP accordance with the Paperwork custody. Forms 7512, ‘‘Transportation Reduction Act of 1995 (PRA). The SUPPLEMENTARY INFORMATION: CBP Entry and Manifest of Goods Subject to invites the general public and other information collection is published in CBP Inspection and Permit’’ and 7512A, the Federal Register to obtain comments Federal agencies to comment on the ‘‘Continuation Sheet,’’ allow CBP to from the public and affected agencies. proposed and/or continuing information exercise control over merchandise DATES: collections pursuant to the Paperwork Comments are encouraged and moving in-bond (merchandise that has must be submitted (no later than Reduction Act of 1995 (44 U.S.C. 3501 not entered the commerce of the United January 4, 2021) to be assured of et seq.). This proposed information States). Forms 7512 and 7512A are filed consideration. collection was previously published in by importers, brokers or carriers, and ADDRESSES: Written comments and the Federal Register (85 FR 44915) on they collect information such as the July 24, 2020, allowing for a 60-day recommendations for the proposed names of the importer and consignee, a information collection should be sent comment period. This notice allows for description of the imported an additional 30 days for public within 30 days of publication of this merchandise, and the ports of lading notice to www.reginfo.gov/public/do/ comments. This process is conducted in and unlading. Use of these forms is accordance with 5 CFR 1320.8. Written PRAMain. Find this particular provided for by various provisions in 19 information collection by selecting comments and suggestions from the CFR to include 19 CFR 10.60, 19 CFR ‘‘Currently under 30-day Review—Open public and affected agencies should 10.61, 19 CFR 123.41, 19 CFR 123.42, 19 for Public Comments’’ or by using the address one or more of the following CFR 122.92, and 19 CFR part 18. These search function. four points: (1) Whether the proposed forms are accessible at: http:// FOR FURTHER INFORMATION CONTACT: collection of information is necessary www.cbp.gov/xp/cgov/toolbox/forms/. Requests for additional PRA information for the proper performance of the should be directed to Seth Renkema, functions of the agency, including Estimated Number of Respondents: 6,200. Chief, Economic Impact Analysis whether the information will have Branch, U.S. Customs and Border practical utility; (2) the accuracy of the Estimated Number of Annual Protection, Office of Trade, Regulations agency’s estimate of the burden of the Responses per Respondent: 871. and Rulings, 90 K Street NE, 10th Floor, proposed collection of information, Estimated Number of Total Annual Washington, DC 20229–1177, including the validity of the Responses: 5,400,000. Telephone number 202–325–0056 or via methodology and assumptions used; (3) _ Estimated Time per Response: 10 email CBP [email protected]. Please suggestions to enhance the quality, minutes (0.166 hours). note that the contact information utility, and clarity of the information to provided here is solely for questions be collected; and (4) suggestions to Estimated Total Annual Burden regarding this notice. Individuals minimize the burden of the collection of Hours: 896,400. seeking information about other CBP information on those who are to Dated: November 30, 2020. programs should contact the CBP respond, including through the use of Seth D. Renkema, National Customer Service Center at appropriate automated, electronic, Branch Chief, Economic Impact Analysis 877–227–5511, (TTY) 1–800–877–8339, mechanical, or other technological Branch, U.S. Customs and Border Protection. or CBP website at https://www.cbp.gov/. collection techniques or other forms of [FR Doc. 2020–26644 Filed 12–2–20; 8:45 am] SUPPLEMENTARY INFORMATION: CBP invites the general public and other information technology, e.g., permitting BILLING CODE 9111–14–P electronic submission of responses. The Federal agencies to comment on the comments that are submitted will be proposed and/or continuing information summarized and included in the request collections pursuant to the Paperwork for approval. All comments will become Reduction Act of 1995 (44 U.S.C. 3501 a matter of public record. et seq.). This proposed information collection was previously published in

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the Federal Register (85 FR 39757) on forms/form-300-bonded-warehouse- Telephone number 202–325–0056 or via July 1, 2020, allowing for a 60-day proprietors-submission. email [email protected]. Please comment period. This notice allows for Estimated Number of Respondents: note that the contact information an additional 30 days for public 1,980. provided here is solely for questions comments. This process is conducted in Estimated Number of Annual regarding this notice. Individuals accordance with 5 CFR 1320.8. Written Responses per Respondent: 1. seeking information about other CBP comments and suggestions from the Estimated Number of Total Annual programs should contact the CBP public and affected agencies should Responses: 1,980. National Customer Service Center at address one or more of the following Estimated Time per Response: 10 877–227–5511, (TTY) 1–800–877–8339, four points: (1) Whether the proposed hours. or CBP website at https://www.cbp. collection of information is necessary Estimated Total Annual Burden gov/. for the proper performance of the Hours: 19,800. SUPPLEMENTARY INFORMATION: CBP functions of the agency, including Dated: November 30, 2020. invites the general public and other whether the information will have Seth D. Renkema, Federal agencies to comment on the practical utility; (2) the accuracy of the Branch Chief, Economic Impact Analysis proposed and/or continuing information agency’s estimate of the burden of the Branch, U.S. Customs and Border Protection. collections pursuant to the Paperwork proposed collection of information, Reduction Act of 1995 (44 U.S.C. 3501 [FR Doc. 2020–26650 Filed 12–2–20; 8:45 am] including the validity of the et seq.). This proposed information BILLING CODE 9111–14–P methodology and assumptions used; (3) collection was previously published in suggestions to enhance the quality, the Federal Register (85 FR 59542) on utility, and clarity of the information to DEPARTMENT OF HOMELAND September 22, 2020, allowing for a 60- be collected; and (4) suggestions to SECURITY day comment period. This notice allows minimize the burden of the collection of for an additional 30 days for public information on those who are to U.S. Customs and Border Protection comments. This process is conducted in respond, including through the use of accordance with 5 CFR 1320.8. Written appropriate automated, electronic, [1651–0073] comments and suggestions from the mechanical, or other technological Agency Information Collection public and affected agencies should collection techniques or other forms of Activities: Notice of Detention address one or more of the following information technology, e.g., permitting four points: (1) Whether the proposed electronic submission of responses. The AGENCY: U.S. Customs and Border collection of information is necessary comments that are submitted will be Protection (CBP), Department of for the proper performance of the summarized and included in the request Homeland Security. functions of the agency, including for approval. All comments will become ACTION: 30-Day notice and request for whether the information will have a matter of public record. comments; extension of an existing practical utility; (2) the accuracy of the collection of information. agency’s estimate of the burden of the Overview of This Information proposed collection of information, Collection SUMMARY: The Department of Homeland including the validity of the Title: Bonded Warehouse Proprietor’s Security, U.S. Customs and Border methodology and assumptions used; (3) Submission. Protection will be submitting the suggestions to enhance the quality, OMB Number: 1651–0033. following information collection request utility, and clarity of the information to Form Number: CBP Form 300. to the Office of Management and Budget be collected; and (4) suggestions to Current Action: CBP proposes to (OMB) for review and approval in minimize the burden of the collection of extend the expiration date of this accordance with the Paperwork information on those who are to information collection with an increase Reduction Act of 1995 (PRA). The respond, including through the use of in the burden hours. There is no change information collection is published in appropriate automated, electronic, to the information collected or CBP the Federal Register to obtain comments mechanical, or other technological Form 300. from the public and affected agencies. collection techniques or other forms of Type of Review: Extension (without Comments are encouraged and must be information technology, e.g., permitting change). submitted (no later than January 4, electronic submission of responses. The Affected Public: Businesses. 2021) to be assured of consideration. comments that are submitted will be Abstract: CBP Form 300, The Bonded ADDRESSES: Written comments and summarized and included in the request Warehouse Proprietor’s Submission, is recommendations for the proposed for approval. All comments will become prepared annually by each warehouse information collection should be sent a matter of public record. proprietor, as mandated under 19 CFR within 30 days of publication of this Overview of This Information 19.12 (g). The information on CBP Form notice to www.reginfo.gov/public/do/ Collection 300 is used by CBP to evaluate PRAMain. Find this particular Title: Notice of Detention. warehouse activity for the year. This information collection by selecting ‘‘Currently under 30-day Review—Open OMB Number: 1651–0073. form must be completed within 45 days Form Number: None. from the end of the business year, for Public Comments’’ or by using the Current Actions: CBP proposes to pursuant to the provisions of the Tariff search function. extend the expiration date of this Act of 1930, as amended, 19 U.S.C. 66, FOR FURTHER INFORMATION CONTACT: information collection with no change 1311, 1555, 1556, 1557, 1623 and 19 Requests for additional PRA information to the burden hours or the information CFR 19.12. The information collected on should be directed to Seth Renkema, collected. this form helps CBP determine all Chief, Economic Impact Analysis Type of Review: Extension (without bonded merchandise that was entered, Branch, U.S. Customs and Border change). released, and manipulated in the Protection, Office of Trade, Regulations Affected Public: Businesses. warehouse. CBP Form 300 is accessible and Rulings, 90 K Street NE, 10th Floor, Abstract: Customs and Border at https://www.cbp.gov/document/ Washington, DC 20229–1177, Protection (CBP) may detain

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merchandise when it has reasonable Reduction Act of 1995 (PRA). The respond, including through the use of suspicion that the subject merchandise information collection is published in appropriate automated, electronic, may be inadmissible but requires more the Federal Register to obtain comments mechanical, or other technological information to make a positive from the public and affected agencies. collection techniques or other forms of determination. If CBP decides to detain DATES: Comments are encouraged and information technology, e.g., permitting merchandise, a Notice of Detention is must be submitted (no later than electronic submission of responses. The sent to the importer or to the importer’s January 4, 2021) to be assured of comments that are submitted will be broker/agent no later than 5 business consideration. summarized and included in the request days after the decision to detain the ADDRESSES: Written comments and for approval. All comments will become merchandise is made. The Notice must recommendations for the proposed a matter of public record. state that merchandise has been information collection should be sent Overview of This Information detained, the specific reason for the within 30 days of publication of this Collection detention, the anticipated length of the notice to www.reginfo.gov/public/do/ Title: Create/Update Importer Identity detention, the nature of the tests or PRAMain. Find this particular Form (CBP Form 5106). inquires to be conducted, and the nature information collection by selecting of any information that could be OMB Number: 1651–0064. ‘‘Currently under 30-day Review—Open Form Number: CBP Form 5106. supplied to CBP that may accelerate the for Public Comments’’ or by using the disposition of the detention. The Current Action: This submission is search function. being made to extend the expiration recipient of this notice may respond by FOR FURTHER INFORMATION CONTACT: providing information to CBP in order date of this information collection with Requests for additional PRA information no change to the burden hours or the to facilitate the determination for should be directed to Seth Renkema, admissibility or may ask for an information being collected. Chief, Economic Impact Analysis Type of Review: Extension (without extension of time to bring the Branch, U.S. Customs and Border change). merchandise into compliance. Notice of Protection, Office of Trade, Regulations Affected Public: Businesses. Detention is authorized by 19 U.S.C. and Rulings, 90 K Street NE, 10th Floor, Abstract: The collection of the 1499 and provided for in 19 CFR 151.16, Washington, DC 20229–1177, information on the ‘‘Create/Update 133.21, 133.25, and 133.43. Telephone number 202–325–0056 or via Importer Identity Form’’, commonly Estimated Number of Respondents: email [email protected]. Please referred to as the ‘‘CBP Form 5106’’ is 1,350. note that the contact information the basis for establishing bond coverage, Estimated Number of Annual provided here is solely for questions release and entry of merchandise, Responses per Respondent: 1. regarding this notice. Individuals Estimated Number of Total Annual liquidation and the issuance of bills and seeking information about other CBP Responses: 1,350. refunds. Members of the trade Estimated Time per Response: 2 programs should contact the CBP community use the Create/Update hours. National Customer Service Center at Importer Identification Form to register Estimated Total Annual Burden 877–227–5511, (TTY) 1–800–877–8339, an entity as an Importer of Record (IOR) Hours: 2,700. or CBP website at https://www.cbp.gov/. on the Automated Commercial SUPPLEMENTARY INFORMATION: CBP Environment. Registering as IOR with Dated: November 30, 2020. invites the general public and other CBP is required if an entity intends to Seth D. Renkema, Federal agencies to comment on the transact Customs business and be Branch Chief, Economic Impact Analysis proposed and/or continuing information involved as an importer, consignee/ Branch, U.S. Customs and Border Protection. collections pursuant to the Paperwork ultimate consignee, any individual or [FR Doc. 2020–26643 Filed 12–2–20; 8:45 am] Reduction Act of 1995 (44 U.S.C. 3501 organization involved as a party, such as BILLING CODE 9111–14–P et seq.). This proposed information 4811 party, or sold to party on an collection was previously published in informal or formal entry. The number the Federal Register (85 FR 59815) on used to identify an IOR is either an DEPARTMENT OF HOMELAND September 23, 2020, allowing for a 60- Internal Revenue Service (IRS) SECURITY day comment period. This notice allows Employer Identification Number (EIN), a U.S. Customs and Border Protection for an additional 30 days for public Social Security Number (SSN), or a comments. This process is conducted in CBP-Assigned Number. By collecting, [1651–0064] accordance with 5 CFR 1320.8. Written certain information from the importer comments and suggestions from the enables CBP to verify the identity of the Agency Information Collection public and affected agencies should importers, meeting IOR regulatory Activities: Create/Update Importer address one or more of the following requirements for collecting information. Identity Form (CBP Form 5106) four points: (1) Whether the proposed 19 CFR 24.5. AGENCY: U.S. Customs and Border collection of information is necessary Importers, each person, business firm, Protection (CBP), Department of for the proper performance of the government agency, or other Homeland Security. functions of the agency, including organization that intends to file an ACTION: 30-Day notice and request for whether the information will have import entry shall file CBP Form 5106 comments; extension of an existing practical utility; (2) the accuracy of the with the first formal entry or request for collection of information. agency’s estimate of the burden of the services that will result in the issuance proposed collection of information, of a bill or a refund check upon SUMMARY: The Department of Homeland including the validity of the adjustment of a cash collection. This Security, U.S. Customs and Border methodology and assumptions used; (3) form is also filed for the ultimate Protection will be submitting the suggestions to enhance the quality, consignee for whom an entry is being following information collection request utility, and clarity of the information to made. to the Office of Management and Budget be collected; and (4) suggestions to CBP Form 5106 is authorized by 19 (OMB) for review and approval in minimize the burden of the collection of U.S.C. 1484 and 31 U.S.C. 7701, and accordance with the Paperwork information on those who are to provided for by 19 CFR 24.5. The

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current version of the form is accessible FOR FURTHER INFORMATION CONTACT: information collection request (ICR) that at: https://www.cbp.gov/document/ Madonna L. Baucum, Service is described below. We are especially forms/form-5106-importer-id-input- Information Collection Clearance interested in public comment record. Officer, by email at [email protected], addressing the following: Estimated Number of Respondents: or by telephone at (703) 358–2503. (1) Whether or not the collection of 300,000. Individuals who are hearing or speech information is necessary for the proper Estimated Number of Annual impaired may call the Federal Relay performance of the functions of the Responses per Respondent: 1. Service at 1–800–877–8339 for TTY agency, including whether or not the Estimated Number of Total Annual assistance. You may also view the information will have practical utility; Responses: 300,000. information collection request (ICR) at (2) The accuracy of our estimate of the Estimated Time per Response: 45 http://www.reginfo.gov/public/do/ burden for this collection of minutes. PRAMain. information, including the validity of Estimated Total Annual Burden the methodology and assumptions used; Hours: 225,000. SUPPLEMENTARY INFORMATION: In (3) Ways to enhance the quality, accordance with the Paperwork Dated: November 30, 2020. utility, and clarity of the information to Reduction Act of 1995 (PRA, 44 U.S.C. Seth D. Renkema, be collected; and 3501 et seq.) and 5 CFR 1320.8(d)(1), we (4) How might the agency minimize Branch Chief, Economic Impact Analysis provide the general public and other Branch, U.S. Customs and Border Protection. the burden of the collection of Federal agencies with an opportunity to information on those who are to [FR Doc. 2020–26642 Filed 12–2–20; 8:45 am] comment on new, proposed, revised, respond, including through the use of BILLING CODE 9111–14–P and continuing collections of appropriate automated, electronic, information. This helps us assess the mechanical, or other technological impact of our information collection collection techniques or other forms of DEPARTMENT OF THE INTERIOR requirements and minimize the public’s information technology, e.g., permitting reporting burden. It also helps the Fish and Wildlife Service electronic submission of response. public understand our information Comments that you submit in [FWS–HQ–ES–2020–N139; FF09E00000 190 collection requirements and provide the response to this notice are a matter of FXES11130900000; OMB Control Number requested data in the desired format. public record. Before including your 1018–0094] On July 6, 2020, we published in the address, phone number, email address, Federal Register (85 FR 40309) a notice or other personal identifying Agency Information Collection of our intent to request that OMB information in your comment, you Activities; Submission to the Office of approve this information collection. In Management and Budget for Review should be aware that your entire that notice, we solicited comments for and Approval; Federal Fish and comment—including your personal 60 days, ending on September 4, 2020. Wildlife Permit Applications and identifying information—may be made We received one comment in response Reports—Native Endangered and publicly available at any time. While Threatened Species to that notice: you can ask us in your comment to Comment 1: The respondent withhold your personal identifying AGENCY: Fish and Wildlife Service, commented on the Southeast information from public review, we Interior. Geographic Area Bat Reporting Form (3– cannot guarantee that we will be able to ACTION: Notice of information collection; 202–55c), the Mussel Reporting Form do so. request for comment. (3–2523), and the Bumblebee Reporting Abstract: The Endangered Species Act Form (3–2526). They supported the (ESA; 16 U.S.C. 1531 et seq.) provides SUMMARY: In accordance with the southeast bat reporting form, stating a means to conserve the ecosystems Paperwork Reduction Act of 1995, we, their opinion that the form is useful, upon which endangered and threatened the U.S. Fish and Wildlife Service and an improvement over their State’s species depend, to provide a program (Service), are proposing to renew an reporting form. They also recommended for the conservation of these endangered information collection with revisions. providing forms in an electronic input and threatened species, and to take the DATES: Interested persons are invited to format for use in the field. appropriate steps that are necessary to submit comments on or before January Agency Response to Comment 1: We bring any endangered or threatened 4, 2021. appreciate the respondent’s response on species to the point where measures ADDRESSES: Written comments and the utility of the Southeast Geographic provided for under the ESA are no recommendations for the proposed Area Bat Reporting Form. The longer necessary. Section 10(a)(1)(A) of information collection should be sent respondent is not within the geographic the ESA authorizes us to issue permits within 30 days of publication of this area where they would be using the for otherwise prohibited activities in notice to www.reginfo.gov/public/do/ Mussel or Bumblebee Reporting Forms, order to enhance the propagation or PRAMain. Find this particular so their comments are not germane to survival of the affected species. Section information collection by selecting the information collection at this time. 10(a)(1)(B) of the ESA authorizes us to ‘‘Currently under 30-day Review—Open We will update the form names issue permits if the taking is incidental for Public Comments’’ or by using the accordingly to reduce confusion. At this to the carrying out of an otherwise search function. Please provide a copy time, we are not exploring creating an lawful activity. ESA section 10(d) of your comments to the Service electronic input data form, but we will requires that such permits be applied for Information Collection Clearance consider this as a potential streamlining in good faith and, if granted, that the Officer, U.S. Fish and Wildlife Service, tool for future information collection permit not operate to the disadvantage MS: PRB (JAO/3W), 5275 Leesburg Pike, renewals. of endangered species, and that the Falls Church, VA 22041–3803 (mail); or As part of our continuing effort to permit be consistent with the purposes by email to [email protected]. Please reduce paperwork and respondent of the ESA. reference OMB Control Number 1018– burdens, we are again soliciting Our regulations implementing the 0094 in the subject line of your comments from the public and other ESA are in chapter I, subchapter B of comments. Federal agencies on the proposed title 50 of the Code of Federal

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Regulations (CFR) (50 CFR 13 and 50 CFR 17). These reports allow us to Take Permits Associated with a Habitat CFR 17). The regulations stipulate evaluate the success of the project, Conservation Plan.’’ We propose to general and specific requirements that, formulate further research, and develop remove program contact information when met, allow us to issue permits to and adjust management and recovery currently in both application form, and authorize activities that are otherwise plans for the species. We currently use instead link to a permanent website. prohibited. Upon receipt of a complete the following reports specific to This website will be frequently application, the Director may issue a particular species (and regions, where maintained and will provide the public permit authorizing any activity appropriate): with the most accurate contact otherwise prohibited by § 17.21, in • Form 3–202–55b, Region 3 information. accordance with the issuance criteria of [Midwest] Bat Reporting Spreadsheet; The Service is proposing to revise and this section, for scientific purposes, for • Form 3–202–55c, Region 4 rename the following five forms enhancing the propagation or survival, [Southeast] Bat Reporting Spreadsheet; associated with bat surveys: or for the incidental taking of • Form 3–202–55d, Region 5 • Form 3–202–55a, U.S. Fish and endangered wildlife. Such permits may [Northeast] Bat Reporting Spreadsheet; Wildlife Service Geographic Area: • authorize a single transaction, a series of Form 3–202–55e, Region 6 Southwestern Bat Reporting Form; transactions, or a number of activities [Mountain-Prairie] Bat Reporting • Form 3–202–55b, U.S. Fish and over a specific period of time. (See Spreadsheet; • Wildlife Service Geographic Area: § 17.32 for permits for threatened Form 3–202–55f, Non-Releasable Midwestern Bat Reporting Form; species.) Sea Turtle Annual Report; and • • Form 3–202–55c, U.S. Fish and We collect information associated Form 3–202–55g, Sea Turtle Wildlife Service Geographic Area: with application forms to determine the Rehabilitation Annual Report. Southeastern Bat Reporting Form; Additionally, we require that the eligibility of applicants for permits • Form 3–202–55d, U.S. Fish and following notifications be made to the requested in accordance with the Wildlife Service Geographic Area: Service: criteria in section 10 of the ESA. The Northeastern Bat Reporting Form; and Service uses the following permit • Private landowners who have an • Form 3–202–55e, U.S. Fish and application forms for activities Enhancement of Survival Permit (and Wildlife Service Geographic Area: associated with native endangered and accompanying Safe Harbor Agreement Plains/Rockies Bat Reporting Form. threatened species: or Candidate Conservation Agreement • Form 3–200–54, Enhancement of with Assurances) must notify us if their The Service is proposing changes to Survival Permits Associated with Safe land management activities incidentally these forms to address comments Harbor Agreement & Candidate take a listed or candidate species received. These changes include adding Conservation Agreement with covered under their permit. columns to increase flexibility for user Assurances; • We issue Enhancement of Survival data entry, to increase accuracy of • Form 3–200–56, Incidental Take Permits to landowners, and their name Global Positioning System data, and to Permits Associated with a Habitat is printed on the permit. If ownership of add three fields specifically requested Conservation Plan; the land changes, this permit does not by State natural resource agencies in • Form 3–200–59, Recovery Permit automatically transfer to the new order to unify their State databases with Application Form; and landowner. Therefore, we ask the that of the Service. These additions • Form 3–200–60, Interstate permittee to notify us if there is a eliminate the need for filing a separate Commerce Application Form. change in land ownership so that we reporting form with the State and On June 6, 2020, we requested and may update the permit; and reduce the overall reporting burden on obtained approval from OMB to split the • If a recovery or interstate commerce the respondents. Completion of the previously approved Form 3–200–55 to permit authorizes activities that include information on the forms regarding the two separate permit applications (asking keeping wildlife in captivity, we ask the activity(ies) to be authorized by the the applicant to select either Recovery permittee to notify us if any of the permit is required in most cases (under Permit or Interstate Commerce) to captive wildlife escape. the authority of section 10(a)(1)(A) of reduce the overall form length and the ESA and its implementing confusion. Based on which permits are Proposed Revisions regulations at 50 CFR 17). issued, we also require reports to Although the Service announced its Note: Form 3–202–55a, ‘‘U.S. Fish and monitor activities associated with intention to seek OMB approval of a Wildlife Service Geographic Area: permitted activities in accordance with new form 3–2531, General Recovery Southwestern Bat Reporting Form’’ was their permits issued based on 50 CFR Permit Reporting Form, in the published added in conjunction with the realignment of 17. Annual reports associated with 60-day Federal Register notice (FRN), the geographical areas covered in the permits are tailored to a specific activity we no longer plan to proceed with this revisions to the geographical areas covered based on the requirements for specific form. Should the Service decide to by the above referenced 3–202–55 series bat reporting forms. types of permits. In some cases, we move forward with this new form at a developed specific information later date, we will initiate a new New Forms collection forms to facilitate and revision to this collection by publishing standardize the reporting and review, the required 60-day FRN to solicit The Service is proposing to revise this and to facilitate development of comments from the public in collection to request OMB approval of electronic forms and electronic accordance with 5 CFR 1320. the following seven new forms: reporting and retrieval of that • Form 3–2523, Midwest Geographic information. Revised Forms Area: Freshwater Mussel Reporting Annual reporting of the results The Service is proposing to revise Form; subsequent to the activity authorized by FWS Forms 3–200–54, ‘‘Enhancement • Form 3–2526, Midwest Geographic the permit is required in most cases of Survival Permits Associated with Safe Area: Bumble Bee Reporting Form; (under the authority of section Harbor Agreements and Candidate • Form 3–2530, California/Nevada/ 10(a)(1)(A) and 10(a)(1)(B) of the ESA Conservation Agreements with Klamath Basin, OR Recovery Permit and its implementing regulations at 50 Assurances,’’ and 3–200–56, ‘‘Incidental Annual Summary Report Form;

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• Form 3–2532, U.S. Fish and (new), 3–2526 (new), 3–2530 (new), and ADDRESSES: Document availability and Wildlife Service Geographic Area: 3–2532 through 3–2534 (new). comment submission: Use one of the Alaska Bat Reporting Form; Type of Review: Revision of a following methods to request • Form 3–2533, U.S. Fish and currently approved collection. documents or submit comments. Wildlife Service Geographic Area: Respondents/Affected Public: Requests and comments should specify Northwestern Bat Reporting Form; and Individuals; private sector; and State/ the applicant name(s) and application • Form 3–2534, U.S. Fish and local/Tribal governments. number(s) (e.g., TE123456): Wildlife Service Geographic Area: Total Estimated Number of Annual • Email: [email protected]. Western Bat Reporting Form. Respondents: 4,258. • U.S. Mail: Marjorie Nelson, Chief, Annual reporting of the results Total Estimated Number of Annual Division of Ecological Services, U.S. subsequent to the activity authorized by Responses: 4,258. Fish and Wildlife Service, 134 Union the permit is required in most cases Estimated Completion Time per Blvd., Suite 670, Lakewood, CO 80228. (under the authority of section Response: Varies from 30 minutes to FOR FURTHER INFORMATION CONTACT: 10(a)(1)(A) and 10(a)(1)(B) of the ESA 2,080 hours, depending on activity. Kathy Konishi, Recovery Permits and its implementing regulations at 50 Total Estimated Number of Annual Coordinator, Ecological Services, 303– CFR 17). The Service designed the forms Burden Hours: 119,949. 236–4224 (phone), or permitsR6ES@ to facilitate the electronic reporting Respondent’s Obligation: Voluntary. fws.gov (email). Individuals who are specifically for each species. The Frequency of Collection: On occasion, hearing or speech impaired may call the Service will use the reported data to annually, one time. Federal Relay Service at 1–800–877– evaluate the success of the permitted Total Estimated Annual Nonhour 8339 for TTY assistance. project, formulate further research, and Burden Cost: $54,910 for fees associated develop and adjust management and with permit applications and SUPPLEMENTARY INFORMATION: We, the recovery plans for the species. The data amendments. U.S. Fish and Wildlife Service, invite will also inform 5-year reviews and An agency may not conduct or the public to comment on applications Species Status Assessments conducted sponsor and a person is not required to for permits under section 10(a)(1)(A) of under the ESA. respond to a collection of information the Endangered Species Act, as unless it displays a currently valid OMB amended (ESA; 16 U.S.C. 1531 et seq.). ePermits Initiative control number. The requested permits would allow the The Service’s new ePermits initiative The authority for this action is the applicants to conduct activities is an automated permit application Paperwork Reduction Act of 1995 (44 intended to promote recovery of species system that will allow the agency to U.S.C. 3501 et seq.). that are listed as endangered or move toward a streamlined permitting Dated: November 30, 2020. threatened under the ESA. process to reduce public burden. Public Madonna Baucum, Background burden reduction is a priority for the Information Collection Clearance Officer, U.S. The Endangered Species Act of 1973, Service; the Assistant Secretary for Fish, Fish and Wildlife Service. as amended (ESA; 16 U.S.C. 1531 et Wildlife, and Parks; and senior [FR Doc. 2020–26614 Filed 12–2–20; 8:45 am] leadership at the Department of the seq.), prohibits certain activities with BILLING CODE 4333–15–P Interior. The intent of the ePermits endangered and threatened species initiative is to fully automate the unless authorized by a Federal permit. permitting process to improve the DEPARTMENT OF THE INTERIOR The ESA and our implementing customer experience and to reduce time regulations in part 17 of title 50 of the burden on respondents. This new Fish and Wildlife Service Code of Federal Regulations (CFR) system will enhance the user experience provide for the issuance of such permits [FWS–R6–ES–2020–N138; and require that we invite public by allowing users to enter data from any FXES11130600000–201–FF06E00000] device that has internet access, comment before issuing permits for including personal computers (PCs), Endangered and Threatened Species; activities involving endangered species. tablets, and smartphones. It will also Receipt of Recovery Permit A recovery permit issued by us under link the permit applicant to the Pay.gov Applications section 10(a)(1)(A) of the ESA system for payment of associated permit authorizes the permittee to conduct application fees, where applicable. AGENCY: Fish and Wildlife Service, activities with endangered species for Upon completion of the new ePermits Interior. scientific purposes that promote system, applicants applying for ACTION: Notice of receipt of permit recovery or for enhancement of Recovery, Interstate Commerce, Habitat applications; request for comments. propagation or survival of the species. Conservation Plan Incidental Take Our regulations implementing section Permits, Candidate Conservation SUMMARY: We, the U.S. Fish and 10(a)(1)(A) for these permits are found Agreements with Assurances, and Safe Wildlife Service, have received at 50 CFR 17.22 for endangered wildlife Harbor Agreements Enhancement of applications for permits to conduct species, 50 CFR 17.32 for threatened Survival Permits will have the activities intended to enhance the wildlife species, 50 CFR 17.62 for opportunity to apply directly online propagation or survival of endangered endangered plant species, and 50 CFR through a secure, web-based platform. species under the Endangered Species 17.72 for threatened plant species. Title of Collection: Federal Fish and Act. We invite the public and local, State, Tribal, and Federal agencies to Permit Applications Available for Wildlife Permit Applications and Review and Comment Reports—Native Endangered and comment on these applications. Before Threatened Species; 50 CFR 10, 13, and issuing any of the requested permits, we Proposed activities in the following 17. will take into consideration any permit requests are for the recovery and OMB Control Number: 1018–0094. information that we receive during the enhancement of propagation or survival Form Numbers: FWS Forms 3–200– public comment period. of the species in the wild. The ESA 54, 3–200–56, 3–200–59, 3–200–60, 3– DATES: We must receive your written requires that we invite public comment 202–55a through 3–202–55g, 3–2523 comments by January 4, 2021. before issuing these permits.

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Accordingly, we invite local, State, and arguments with respect to these useful and likely to influence agency Federal agencies; Tribes; and the public applications. The comments and decisions are those supported by to submit written data, view, or recommendations that will be most quantitative information or studies.

Application number Applicant Species Location Take activity Permit action

TE067482–2 ...... Colorado Department of • Southwestern willow flycatcher (Empidonax NE Pursue for presence/absence Renew. Transportation, Durango, traillii extimus). surveys, nest monitoring, CO. habitat management. TE059369–3 ...... Colorado Natural Heritage • New Mexico meadow jumping mouse CO Pursue, capture, handle, Renew. Program, Fort Collins, CO. (Zapus hudsonius luteus). measure, and release for presence/absence surveys. TE81397D–0 ...... University of Northern Colo- • Eriogonum pelinophilum (Clay-loving wild CO Remove and reduce to pos- New. rado, Greeley, CO. buckwheat). session; seed, fruit collec- • Astragalus osterhoutii (Osterhout tion for genetic studies; milkvetch). voucher sample collection. • Penstemon penlandii (Pendland beardtongue). TE085324–3 ...... Wyoming Natural Diversity • Penstemon haydenii (Blowout penstemon) WY Remove and reduce to pos- Amend. Database, Laramie, WY. session; seed, fruit collec- tion for genetic studies; voucher sample collection; propagation and seed bank research; habitat restoration and enhancement prior to reintroduction activities. TE053961–2 ...... Omaha’s Henry Doorly Zoo • Salt Creek tiger beetle (Cicindeoa NE, WY Hold in captivity for captive Amend. and Aquarium, Omaha, NE. nevadica lincolniana). breeding and propagation; • Wyoming toad (Anaxyrus baxteri). pursue, capture, handle, measure, and release for presence/absence surveys; reintroduction activities. TE35101D–0 ...... Schmueser Gordon Meyer, • Southwestern willow flycatcher (Empidonax CO Pursue for presence/absence New. Inc. (SGM), Glenwood traillii extimus). surveys, nest monitoring, Springs, CO. habitat management. PER0001907 ...... Vosburgh, Timothy, Ana- • Black-footed ferret (Mustela nigripes) ...... MT Presence/absence surveys, New. conda, MT. capture, handle, chip im- plant, tattoo, measure, vac- cinate, and release for re- introduction activities.

Public Availability of Comments 1973, as amended (16 U.S.C. 1531 et ADDRESSES: Send your comments on seq.). this information collection request (ICR) Written comments we receive become by mail to Mr. Jeffrey Parrillo, Stephen Small, part of the administrative record. Before Departmental Information Collection including your address, phone number, Assistant Regional Director, U.S. Fish and Wildlife Service, Department of the Interior Clearance Officer, 1849 C Street NW, email address, or other personal Washington, DC 20240, by phone 202– identifying information in your Unified Regions 5 and 7. [FR Doc. 2020–26605 Filed 12–2–20; 8:45 am] 208–7072; or by email to DOI-PRA@ comment, you should be aware that ios.doi.gov. Please reference OMB BILLING CODE 4333–15–P your entire comment—including your Control Number 1090–NEW in the personal identifying information—may subject line of your comments. be made publicly available at any time. DEPARTMENT OF THE INTERIOR While you can request in your comment FOR FURTHER INFORMATION CONTACT: To that we withhold your personal [212D0102DM, DS6CS00000, request additional information about identifying information from public DLSN00000.000000, DX6CS25; OMB Control this ICR, contact Jeffrey Parrillo by review, we cannot guarantee that we No. 1090–NEW] email at [email protected], or by will be able to do so. All submissions telephone at (202) 208–7072. from organizations or businesses, and Agency Information Collection Individuals who are hearing or speech from individuals identifying themselves Activities; Watercraft Inspection impaired may call the Federal Relay as representatives or officials of Decontamination Regional Data- Service at (800) 877–8339 for TTY organizations or businesses, will be Sharing for Trailered Boats assistance. You may also view the ICR at http://www.reginfo.gov/public/do/ made available for public disclosure in AGENCY: Department of the Interior. their entirety. PRAMain. ACTION: Notice of information collection; Next Steps request for comment. SUPPLEMENTARY INFORMATION: In accordance with the Paperwork If we decide to issue permits to any SUMMARY: In accordance with the Reduction Act of 1995 (PRA, 44 U.S.C. of the applicants listed in this notice, Paperwork Reduction Act of 1995, we, 3501 et seq.) and 5 CFR 1320.8(d)(1), all we will publish a notice in the Federal the Department of the Interior (Interior), information collections require approval Register. are proposing a new information under the PRA. We may not conduct or collection. Authority sponsor and you are not required to DATES: Interested persons are invited to respond to a collection of information We publish this notice under section submit comments on or before February unless it displays a currently valid OMB 10(c) of the Endangered Species Act of 1, 2021. control number.

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As part of our continuing effort to the presence and evaluate any risks 2. Does the boater have any live reduce paperwork and respondent associated with the unintentional aquatic bait? burdens, we invite the public and other introduction of quagga/zebra mussels Title of Collection: Watercraft Federal agencies to comment on new, and other aquatic invasive species in Inspection Decontamination Regional proposed, revised, and continuing waters managed by the various bureaus Data-sharing for Trailered Boats. collections of information. This helps us under Interior. Collection of this OMB Control Number: 1090–NEW. assess the impact of our information information is required for all Form Number: None. collection requirements and minimize watercrafts entering and exiting waters Type of Review: New. the public’s reporting burden. It also managed by the various bureaus under Respondents/Affected Public: helps the public understand our Interior that have an active watercraft Individuals/household; private sector; information collection requirements and inspection and decontamination and State, local, and Tribal provide the requested data in the program. governments. desired format. The Regional Watercraft Inspection Total Estimated Number of Annual We are especially interested in public Decontamination Data Sharing System Responses: 335,602. comment addressing the following: (Regional Database) was developed by Estimated Completion Time per (1) Whether or not the collection of the State of Colorado and is currently Response: 4 minutes. information is necessary for the proper being utilized by numerous entities Total Estimated Number of Annual performance of the functions of the within the Western Regional Panel on Burden Hours: 22,486 hours. agency, including whether or not the Aquatic Nuisance Species (WRP). The Respondent’s Obligation: Required to information will have practical utility; National Park Service, U.S. Fish and obtain or retain a benefit. (2) The accuracy of our estimate of the Wildlife Service, Bureau of Frequency of Collection: On occasion. burden for this collection of Reclamation, and Bureau of Land (Upon entry, exit, or both) information, including the validity of Management are part of the WRP and Total Estimated Annual Nonhour the methodology and assumptions used; the regional network of state and federal Burden Cost: None. (3) Ways to enhance the quality, agencies working to prevent the spread An agency may not conduct or utility, and clarity of the information to of quagga/zebra mussels and other sponsor and a person is not required to be collected; and respond to a collection of information (4) How might the agency minimize aquatic invasive species (AIS) in the unless it displays a currently valid OMB the burden of the collection of western U.S. The success of this multi- control number. information on those who are to agency effort relies in part upon timely The authority for this action is the respond, including through the use of availability of accurate information Paperwork Reduction Act of 1995 (44 appropriate automated, electronic, related to trailered boats at watercraft U.S.C. 3501 et seq). mechanical, or other technological inspection/decontamination (WID) collection techniques or other forms of stations. The NPS already has OMB Jeffrey Parrillo, approval to use this database but that information technology, e.g., permitting Departmental Information Collection electronic submission of response. collection will be discontinued and NPS Clearance Officer. will be rolled into this Department wide Comments that you submit in [FR Doc. 2020–26604 Filed 12–2–20; 8:45 am] information collection once approved. response to this notice are a matter of BILLING CODE 4334–CC–P public record. We will include or The Regional Database makes this summarize each comment in our request information available to staff at WID to OMB to approve this ICR. Before stations, allowing them to assess risk DEPARTMENT OF THE INTERIOR including your address, phone number, associated with quagga/zebra mussels email address, or other personal and other AIS on trailered boats. States National Park Service identifying information in your are asking federal partner agencies to begin using the database at their sites [NPS–WASO–NRNHL–DTS#–31214; comment, you should be aware that PPWOCRADI0, PCU00RP14.R50000] your entire comment—including your with WID programs. personal identifying information—may Using the Regional Database requires National Register of Historic Places; be made publicly available at any time. that WID personnel ask boaters four Notification of Pending Nominations While you can ask us in your comment questions and enter the responses via an and Related Actions to withhold your personal identifying app on a smartphone or tablet. Two of information from public review, we the four questions vary depending on AGENCY: National Park Service, Interior. cannot guarantee that we will be able to whether a boater is entering or exiting ACTION: Notice. do so. a waterbody; the other two questions are Abstract: Interior is authorized by the the same for entering and exiting SUMMARY: The National Park Service is Lacey Act (18 U.S.C. 42, 16 U.S.C. boaters: soliciting electronic comments on the 3371–3378 et seq.), the Fish and Upon Entering: significance of properties nominated Wildlife Coordination Act (U.S.C. 661 et 1. Has the boat been out of the state before November 21, 2020, for listing or seq., as amended by John D. Dingell, Jr. in the last 30 days? related actions in the National Register Conservation, Management, and 2. Has the boat been in any other of Historic Places. Recreation Act, Title 25 U.S. Code 3701, waters in the last 30 days? DATES: Comments should be submitted et seq. sec. 7001(b)(2), Pub. L. 116–9) Upon Exiting: electronically by December 18, 2020. and the Federal Land Policy and 1. What is the destination for the ADDRESSES: Comments are encouraged Management Act of 1976, as Amended, boat? to be submitted electronically to 43 U.S.C. 1701, et seq., to collect this 2. Where will the boat be launched National_Register_Submissions@ information. Interior is requesting next? nps.gov with the subject line ‘‘Public approval to collect information from Upon Entering and Exiting: Comment on .’’ If you managed by various bureaus under on the boat, including ballast tanks, have no access to email you may send Interior. The data will help document hold water? them via U.S. Postal Service and all

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other carriers to the National Register of MICHIGAN Will County Historic Places, National Park Service, Wayne County Plainfield Halfway House (Additional 1849 C Street NW, MS 7228, Documentation), 503 Main St., Plainfield, United States Postal Service Roosevelt Park AD80001421 Washington, DC 20240. Station, 1800 18th St., Detroit, SUPPLEMENTARY INFORMATION: The SG100005983 NORTH CAROLINA properties listed in this notice are being NEW YORK Granville County considered for listing or related actions in the National Register of Historic Madison County Oxford Historic District (Additional Documentation), (Granville County MPS), Places. Nominations for their Oneida Community Limited Administration Roughly bounded by College, New College, consideration were received by the Building, 181 Kenwood Ave., Oneida, Gilliam, Raleigh, Front, Broad, Goshen, and National Park Service before November SG100005960 Hayes Sts., Oxford, AD88000403 21, 2020. Pursuant to Section 60.13 of Washington County Authority: Section 60.13 of 36 CFR part 60. 36 CFR part 60, comments are being Greenwich District School No. 11, 4 Ryan Dated: November 24, 2024. accepted concerning the significance of Rd., Center Falls, SG100005961 the nominated properties under the Sherry A. Frear, National Register criteria for evaluation. NORTH CAROLINA Chief, National Register of Historic Places/ Before including your address, phone Granville County National Historic Landmarks Program. number, email address, or other Oxford Historic District (Boundary Increase [FR Doc. 2020–26616 Filed 12–2–20; 8:45 am] personal identifying information in your and Decrease), (Granville County MPS), BILLING CODE 4312–52–P comment, you should be aware that Roughly bounded by Alexander and Sunset your entire comment—including your Aves., 3rd, Belle, Broad, Cherry, College, personal identifying information—may Devin, Franklin, Front, Gilliam, Granville, DEPARTMENT OF JUSTICE be made publicly available at any time. Henderson, Hillsboro, Lanier, Main, New College, Raleigh, and West Sts., and Martin Antitrust Division While you can ask us in your comment Luther King Jr. Blvd., Oxford, to withhold your personal identifying BC100005974 information from public review, we Notice Pursuant to the National cannot guarantee that we will be able to Hertford County Cooperative Research and Production do so. Winton Historic District, Roughly bounded Act of 1993—Subcutaneous Drug Nominations submitted by State or by west side of North King St., north of Development & Delivery Consortium, Tribal Historic Preservation Officers: Cross St., North Murfree, East Weaver, and Inc. West Jordan Sts., Winton, SG100005976 CALIFORNIA Notice is hereby given that, on Surry County October 26, 2020, pursuant to Section Alameda County Country Club Estates Historic District, 6(a) of the National Cooperative Hotel Menlo, 344 13th St., Oakland, Includes portions of Club View Dr., Research and Production Act of 1993, SG100005984 Country Club Rd., Fairway Ln., and 15 U.S.C. 4301 et seq. (‘‘the Act’’), Greenhill Rd., Mount Airy, SG100005977 COLORADO Lebanon Hill Historic District, Roughly Subcutaneous Drug Development & Delivery Consortium, Inc. Bent County bounded by Howard, Mitchell, South, and Woodruff Sts., and the Mount Airy Historic (‘‘Subcutaneous Drug Development & Boggsville (Boundary Increase), 2 mi. south District, Mount Airy, SG100005978 Delivery Consortium, Inc.’’) has filed of Las Animas, east of CO 101, Las Animas In the interest of preservation, a written notifications simultaneously vicinity, BC100005980 SHORTENED comment period has been with the Attorney General and the Gilpin County requested for the following resource: Federal Trade Commission disclosing Frontenac and Aduddell Mine Complex, MARYLAND (1) the identities of the parties to the (Mining Industry in Colorado, MPS), 0.25 venture and (2) the nature and mi. southwest of jct. of Church Placer and Kent County objectives of the venture. The Pewabic Mountain Rds., Russell Gulch Piney Grove, 7281 Wilkins Ln., Chestertown, notifications were filed for the purpose vicinity, MP100005981 SG100005962 of invoking the Act’s provisions limiting Comment period: 3 days ILLINOIS the recovery of antitrust plaintiffs to A request to move has been received for actual damages under specified Crawford County the following resource: circumstances. Allen, Dr. Arthur W., Home, 11266 North NORTH CAROLINA Pursuant to Section 6(b) of the Act, Trimble Rd., Robinson, SG100005966 the identity of the parties to the venture Alamance County Douglas County are: Eli Lilly and Company, Menagerie Carousel, Burlington City Park, Indianapolis, IN; Halozyme, Inc., San Henson House, 103 North Henson Rd., Villa South Main St., Burlington, MV82003420 Grove, SG100005967 Diego, CA; Bristol Myers Squibb, New Additional documentation has been Brunswick, NJ; AstraZeneca, San received for the following resources: Jersey County Francisco, CA; and Amgen Inc., Jerseyville First Presbyterian Church, 400 COLORADO Thousand Oaks, CA. The general area of South State St., Jerseyville, SG100005968 Bent County Subcutaneous Drug Development & Delivery Consortium, Inc.’s planned Winnebago County Boggsville (Additional Documentation), Rockford Woman’s Club, 323 Park Ave., South of Las Animas on CO 101, Las activity is (a) transform patient care and Rockford, SG100005971 Animas vicinity, AD86002841 improve patient outcomes by identifying and addressing key gaps, MARYLAND ILLINOIS unmet needs and actionable issues in Frederick County Wayne County the dynamic subcutaneous (‘‘SC’’) drug Ceres Bethel AME Church, Gapland Rd., Turney-Hall House (Additional delivery and development landscape, approx. 2 mi. west of Burkittsville, Documentation), 502 SE 4th St., Fairfield, including through research, publication Burkittsville vicinity, SG100005982 AD100002329 of industry analyses, and the

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development of SC-related manuscripts, SUPPLEMENTARY INFORMATION: In ‘‘Currently under 30-day Review—Open models, standards and other guidance accordance with 21 CFR 1301.33(a), this for Public Comments’’ or by using the materials (collectively, ‘‘Guidance’’); (b) is notice that on November 11, 2020, search function. provide a venue for reviewing, Janssen Pharmaceuticals Inc., 1440 SUPPLEMENTARY INFORMATION: Written developing, maintaining and supporting Olympic Drive, Athens, Georgia, 30601– comments and suggestions from the the Guidance; (c) promote the Guidance 1645, applied to be registered as an bulk public and affected agencies concerning worldwide; (d) provide for testing and manufacturer of the following basic the proposed collection of information conformity assessment of class(es) of controlled substance(s): are encouraged. Your comments should implementations in order to ensure and/ address one or more of the following or facilitate compliance with Guidance; Drug four points: Controlled substance code Schedule (e) operate a branding program based —Evaluate whether the proposed upon distinctive trademarks to create Methylphenidate ...... 1724 II collection of information is necessary high customer awareness of, demand Hydromorphone ...... 9150 II for the proper performance of the for, and confidence in the Guidance, Hydrocodone ...... 9193 II functions of the agency, including and products or services designed in Oripavine ...... 9330 II whether the information will have compliance therewith; and (f) undertake Thebaine ...... 9333 II practical utility; Tapentadol ...... 9780 II such other activities as may from time —Evaluate the accuracy of the agencies to time be appropriate to further the estimate of the burden of the The company plans to manufacture purposes and achieve the goals set forth proposed collection of information, the above-listed controlled substances above. including the validity of the in bulk for distribution to its customers. Membership in Subcutaneous Drug methodology and assumptions used; No other activities for these drug codes Development & Delivery Consortium, —Evaluate whether and if so how the are authorized for this registration. Inc. remains open and Subcutaneous quality, utility, and clarity of the Drug Development & Delivery William T. McDermott, information to be collected can be Consortium, Inc. intends to file Assistant Administrator. enhanced; and additional written notifications —Minimize the burden of the collection disclosing all changes in membership. [FR Doc. 2020–26651 Filed 12–2–20; 8:45 am] BILLING CODE 4410–09–P of information on those who are to Suzanne Morris, respond, including through the use of Chief, Premerger and Division Statistics, appropriate automated, electronic, Antitrust Division. DEPARTMENT OF JUSTICE mechanical, or other technological [FR Doc. 2020–26626 Filed 12–2–20; 8:45 am] collection techniques or other forms Federal Bureau of Investigation BILLING CODE 4410–11–P of information technology, e.g., [OMB Number 1110–0051] permitting electronic submission of responses. DEPARTMENT OF JUSTICE Agency Information Collection Overview of This Information Activities; Proposed eCollection Collection Drug Enforcement Administration eComments Requested; Revision of a (1) Type of Information Collection: [Docket No. DEA–750] Currently Approved Collection; Final Disposition Report (R–84), With Revision of a currently approved Bulk Manufacturer of Controlled Supplemental Questions R–84(a), R– collection. Substances Application: Janssen 84(b), R–84(c), R–84(d), R–84(e), R– (2) Title of the Form/Collection: Final Pharmaceuticals Inc. 84(f), R–84(g), R–84(h), R–84(i), and R– Disposition Report. 84(j) (3) Agency form number, if any, and AGENCY: Drug Enforcement the applicable component of the Administration, Justice. AGENCY: Criminal Justice Information Department sponsoring the collection: ACTION: Notice of application. Services Division, Federal Bureau of Agency form number: R–84, with Investigation, Department of Justice. supplemental questions R–84(a), R– SUMMARY: Janssen Pharmaceuticals Inc., ACTION: 30-day notice. 84(b), R–84(c), R–84(d), R–84(e), R– has applied to be registered as a bulk 84(f), R–84(g), R–84(h), R–84(i), and R– manufacturer of basic class(es) of SUMMARY: The Criminal Justice 84(j). controlled substance(s). Refer to Information Services (CJIS) Division, Sponsoring component: Department Supplemental Information listed below Federal Bureau of Investigation (FBI), of Justice, Criminal Justice Information for further drug information. Department of Justice (DOJ), will be Services Division. DATES: Registered bulk manufacturers of submitting the following information (4) Affected public who will be asked the affected basic class(es), and collection request to the Office of or required to respond, as well as a brief applicants therefore, may file written Management and Budget (OMB) for abstract: Primary: City, county, state, comments on or objections to the review and approval in accordance with federal and tribal law enforcement issuance of the proposed registration on the Paperwork Reduction Act of 1995. agencies. This collection is needed to or before February 1, 2021. Such DATES: Comments are encouraged and report completion of an arrest event. persons may also file a written request will be accepted for an additional 30 Acceptable data is stored as part of the for a hearing on the application on or days until January 4, 2021. Next Generation Identification (NGI) before February 1, 2021. ADDRESSES: Written comments and system of the FBI. ADDRESSES: Written comments should recommendations for the proposed (5) An estimate of the total number of be sent to: Drug Enforcement information collection should be sent respondents and the amount of time Administration, Attention: DEA Federal within 30 days of publication of this estimated for an average respondent to Register Representative/DPW, 8701 notice to www.reginfo.gov/public/do/ respond/reply: It is estimated that Morrissette Drive, Springfield, Virginia PRAMain. Find this particular 75,605 respondents will complete each 22152. information collection by selecting form within approximately 5 minutes.

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(6) An estimate of the total public written notice to each individual who is for the proper performance of the burden (in hours) associated with the currently filing claims for EB of the functions of the agency, including collection: There are an estimated forthcoming termination of the EB whether the information will have 81,074.75 total annual burden hours period and its effect on the individual’s practical utility; associated with this collection. right to EB (20 CFR 615.13 (c)). • Evaluate the accuracy of the If additional information is required FOR FURTHER INFORMATION CONTACT: U.S. agency’s estimate of the burden of the contact: Melody Braswell, Department Department of Labor, Employment and proposed collection of information, Clearance Officer, United States Training Administration, Office of including the validity of the Department of Justice, Justice Unemployment Insurance Room S– methodology and assumptions used; • Management Division, Policy and 4524, Attn: Thomas Stengle, 200 Enhance the quality, utility, and Planning Staff, Two Constitution Constitution Avenue NW, Washington, clarity of the information to be Square, 145 N Street NE, Suite 3E.405B, collected; and DC 20210, telephone number (202) 693– • Washington, DC 20530. 2991 (this is not a toll-free number) or Minimize the burden of the Dated: November 30, 2020. by email: [email protected]. collection of information on those who are to respond, including through the Melody Braswell, Signed in Washington, DC. use of appropriate automated, Department Clearance Officer, PRA, U.S. John Pallasch, electronic, mechanical, or other Department of Justice. Assistant Secretary for Employment and technological collection techniques or [FR Doc. 2020–26634 Filed 12–2–20; 8:45 am] Training. other forms of information technology BILLING CODE 4410–02–P [FR Doc. 2020–26647 Filed 12–2–20; 8:45 am] (e.g., permitting electronic submission BILLING CODE 4510–FW–P of responses). ADDRESSES: Comments should be sent to DEPARTMENT OF LABOR Office of Information and Regulatory NATIONAL FOUNDATION FOR THE Employment and Training Affairs, Attn.: OMB Desk Officer for ARTS AND THE HUMANITIES Administration Education, Office of Management and Budget, Room 10235, Washington, DC Institute of Museum and Library Notice of a Change in Status of an 20503, Telephone: 202–395–7316. Services Extended Benefit (EB) Program for FOR FURTHER INFORMATION CONTACT: Colorado and Kentucky Submission for OMB Review, Christopher J. Reich, Chief Administrator, Office of Museum AGENCY: Employment and Training Comment Request, Proposed Collection: Museums for All Services, Institute of Museum and Administration, Labor. Library Services, 955 L’Enfant Plaza ACTION: Notice. AGENCY: Institute of Museum and North SW, Suite 4000, Washington DC Library Services, National Foundation This notice announces a change in 20024–2135. Mr. Reich can be reached on the Arts and the Humanities. benefit period eligibility under the EB by Telephone: 202–653–4685, or by program for Colorado and Kentucky. ACTION: Submission for OMB review, email at [email protected], or by teletype The following changes have occurred comment request. (TTY/TDD) for persons with hearing since the publication of the last notice difficulty at 202–653–4614. SUMMARY: The Institute of Museum and regarding the State’s EB status: SUPPLEMENTARY INFORMATION: The • Colorado’s 13-week insured Library Services announces the Institute of Museum and Library unemployment rate (IUR) for the week following information collection has Services is the primary source of federal ending November 7, 2020, was 4.90 been submitted to the Office of support for the nation’s libraries and percent, falling below the 5.00 percent Management and Budget (OMB) for museums. We advance, support, and threshold necessary to remain ‘‘on’’ EB. review and approval in accordance with empower America’s museums, libraries, Therefore, the EB period for Colorado the Paperwork Reduction Act. This and related organizations through grant ends on November 28, 2020. The state program helps to ensure that requested making, research, and policy will remain in an ‘‘off’’ period for a data can be provided in the desired development. Our vision is a nation minimum of 13 weeks. format, reporting burden (time and where museums and libraries work • Kentucky’s 13-week IUR for the financial resources) is minimized, together to work together to transform week ending November 7, 2020, was collection instruments are clearly the lives of individuals and 4.67 percent, falling below the 5.00 understood, and the impact of collection communities. To learn more, visit percent threshold necessary to remain requirements on respondents can be www.imls.gov. ‘‘on’’ EB. Therefore, the EB period for properly assessed. This notice proposes Current Actions: This notice proposes Kentucky ends on November 28, 2020. the renewal clearance of the Museums the clearance of Museums for All The state will remain in an ‘‘off’’ period for All which includes clearance for Registration and Report Forms. for a minimum of 13 weeks. Registration and Report Forms. A copy The 60-day Notice was published in of the proposed information collection the Federal Register on 9/18/2020 (85 Information for Claimants request can be obtained by contacting FR 58400). The agency received no The duration of benefits payable in the individual listed below in the comments in response to the posting. the EB Program, and the terms and ADDRESSES section of this notice. The purpose of this collection is to conditions on which they are payable, DATES: Written comments must be support the administration of Museums are governed by the Federal-State submitted to the office listed in the FOR for All, a program designed to increase Extended Unemployment Compensation FURTHER INFORMATION CONTACT section access to museums for underserved Act of 1970, as amended, and the below on or before January 1, 2021. audiences by inviting museums to allow operating instructions issued to the state OMB is particularly interested in Electronic Benefit Transfer (EBT) card by the U.S. Department of Labor. In the comments that help the agency to: holders to receive reduced-price case of a state ending an EB period, the • Evaluate whether the proposed admission to their facilities. This State Workforce Agency will furnish a collection of information is necessary information collection will obtain

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registration data from participating Supplemental Questionnaire for • Eligible for physical and logical museums, such as institution-level Selected Positions (SF 85P–S). access to federally controlled facilities name, mailing address, web address, DATES: Comments are encouraged and or information systems, when the duties operating budget, and attendance, as will be accepted until January 4, 2021. to be performed by the individual are well as contact information for the staff ADDRESSES: Interested persons are equivalent to the duties performed by an members administering the program. invited to submit written comments on employee in a public trust position. Additional reporting information, such the proposed information collection to For applicants, the SF 85P and SF as program attendance, sponsor the Office of Information and Regulatory 85P–S are to be used only after a involvement, partnerships, and Affairs, Office of Management Budget by conditional offer of employment has feedback regarding experience with the the following method: http:// been made. The SF 85P–S is program, will be collected on a quarterly www.regulations.gov. Follow the supplemental to the SF 85P and is used basis to assess implementation of the instructions for submitting comments. only as approved by OPM, for certain program components, the efficacy of All submissions received must include positions such as those requiring program materials, and the impact of the the agency name and docket number for carrying of a firearm. e-QIP (Electronic program. this document. The general policy for Questionnaires for Investigations Agency: Institute of Museum and comments and other submissions from Processing) is a web-based system Library Services. member of the public is to make these application that houses the SF 85P and Title: Museums for All. submissions available for public SF 85P–S. A variable in assessing OMB Control Number: 3137–0089. viewing at http://www.regulations.gov burden hours is the nature of the Agency Number: 3137. as they are received without change, electronic application. The electronic Affected Public: Museums. application includes branching Total Number of Respondents: 734. including any personal identifiers or contact information. questions and instructions which Frequency of Response: Once per provide for a tailored collection from FOR FURTHER INFORMATION CONTACT: A request for the Registration Form; four the respondent based on varying factors copy of this ICR, with applicable times per year for the Report Form. in the respondent’s personal history. supporting documentation, may be Average Hours per Response: The burden on the respondent is obtained by contacting Lisa M. Loss, Registration Form: 0.5 hour; Report reduced when the respondent’s personal (202) 606–7017, U.S. Office of Personnel Form: 1 hour. history is not relevant to particular Management, Suitability Executive Total Burden Hours: 42 hours for the question, since the question branches, Agent Programs, P.O. Box 699, Slippery Registration Form; 2,600 hours for the or expands for additional details, only Rock, PA 16057, or sent by email to Report Form. for those persons who have pertinent [email protected]. Total Annualized Capital/Startup information to provide regarding that Costs: n/a. SUPPLEMENTARY INFORMATION: line of questioning. Accordingly, the Total Annual Cost Burden: $1,194.06 This notice announces that OPM has burden on the respondent will vary for the Registration Form; $73,918.00 for submitted to OMB a request for renewal depending on whether the information the Report Form. of a previously-approved information collection relates to the respondent’s Total Annual Federal Costs: $0. collection, control number 3206–0258, personal history. Dated: November 30, 2020. Questionnaire for Public Trust Positions OPM recommends renewal of the Kim Miller, (SF 85P) and Supplemental form without any proposed changes, Questionnaire for Selected Positions (SF Senior Grants Management Specialist, except to underlying authorities, which Institute of Museum and Library Services. 85P–S). The public has an additional have been revised in the period since 30-day opportunity to comment. The [FR Doc. 2020–26625 Filed 12–2–20; 8:45 am] the last renewal, and the Privacy Act Questionnaire for Public Trust BILLING CODE 7036–01–P Information Statement, to acknowledge Positions, SF 85P and Supplemental the transfer of background Questionnaire for Selected Positions, SF investigations files from OPM to the 85P–S, are information collections Defense Counterintelligence and OFFICE OF PERSONNEL completed by applicants for, or MANAGEMENT Security Agency. No other changes are incumbents of, Federal Government recommended at this time. Ongoing Notice of Submission for Renewal of a civilian positions, or positions in assessments will occur to ensure the SF Previously Approved Information private entities performing work for the 85P and SF 85P–S reflect and collect Collection: Questionnaire for Public Federal Government under contract (SF pertinent information for the Trust Positions (SF 85P) and 85P only). The collections are used as investigative process and align with Supplemental Questionnaire for the basis of information for background governing policies, rules, and Selected Positions (SF 85P–S) investigations to establish that such regulations requiring use of these forms. persons are: • The 60 day Federal Register Notice AGENCY: Office of Personnel Suitable for employment or was published on September 16, 2020 Management. retention in Federal employment in a (85 FR 57890). No comments were ACTION: 30-Day notice and request for public trust position or fit for received. comments. employment or retention in Federal employment in the excepted service Analysis SUMMARY: The Office of Personnel when the duties to be performed are Agency: Office of Personnel Management (OPM), Suitability equivalent in degree of trust reposed in Management, Suitability Executive Executive Agent Programs, is notifying the incumbent to a public trust position; Agent Programs. the general public and other federal • Fit to perform work on behalf of the Title: Questionnaire for Public Trust agencies that OPM proposes to request Federal Government pursuant to the Positions (SF 85P) and Supplemental the Office of Management and Budget Government contract, when the duties Questionnaire for Selected Positions (SF (OMB) to renew a previously-approved to be performed are equivalent in degree 85P–S). information collection, Questionnaire of trust reposed in the individual to a OMB Number: 3206–0258. for Public Trust Positions (SF 85P) and public trust position; Affected Public: Individuals.

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Number of Respondents: 112,894 (SF Service request, the title of each Postal Competitive Product List and Notice of 85P); 11,717 (SF 85P–S). Service request, the request’s acceptance Filing Materials Under Seal; Filing Estimated Time per Respondent: 155 date, and the authority cited by the Acceptance Date: November 27, 2020; minutes (SF 85P); 10 minutes (SF 85P– Postal Service for each request. For each Filing Authority: 39 U.S.C. 3642, 39 CFR S). request, the Commission appoints an 3040.130 through 3040.135, and 39 CFR Total Burden Hours: 282,235 (SF officer of the Commission to represent 3035.105; Public Representative: Curtis 85P); 1,953 (SF 85P–S). the interests of the general public in the E. Kidd; Comments Due: December 7, Office of Personnel Management. proceeding, pursuant to 39 U.S.C. 505 2020. (Public Representative). Section II also Alexys Stanley, 4. Docket No(s).: MC2021–34 and Regulatory Affairs Analyst. establishes comment deadline(s) pertaining to each request. CP2021–35; Filing Title: USPS Request [FR Doc. 2020–26511 Filed 12–2–20; 8:45 am] The public portions of the Postal to Add Parcel Select Contract 41 to BILLING CODE 6325–66–P Service’s request(s) can be accessed via Competitive Product List and Notice of the Commission’s website (http:// Filing Materials Under Seal; Filing www.prc.gov). Non-public portions of Acceptance Date: November 27, 2020; POSTAL REGULATORY COMMISSION the Postal Service’s request(s), if any, Filing Authority: 39 U.S.C. 3642, 39 CFR [Docket Nos. MC2021–31 and CP2021–32; can be accessed through compliance 3040.130 through 3040.135, and 39 CFR MC2021–32 and CP2021–33; MC2021–33 with the requirements of 39 CFR 3035.105; Public Representative: and CP2021–34; MC2021–34 and CP2021– 3011.301.1 Gregory S. Stanton; Comments Due: 35; MC2021–35 and CP2021–36; MC2021– The Commission invites comments on December 7, 2020. 36 and CP2021–37] whether the Postal Service’s request(s) 5. Docket No(s).: MC2021–35 and in the captioned docket(s) are consistent New Postal Products CP2021–36; Filing Title: USPS Request with the policies of title 39. For to Add Parcel Select Contract 42 to AGENCY: Postal Regulatory Commission. request(s) that the Postal Service states Competitive Product List and Notice of concern market dominant product(s), ACTION: Notice. Filing Materials Under Seal; Filing applicable statutory and regulatory Acceptance Date: November 27, 2020; SUMMARY: The Commission is noticing a requirements include 39 U.S.C. 3622, 39 recent Postal Service filing for the U.S.C. 3642, 39 CFR part 3030, and 39 Filing Authority: 39 U.S.C. 3642, 39 CFR Commission’s consideration concerning CFR part 3040, subpart B. For request(s) 3040.130 through 3040.135, and 39 CFR a negotiated service agreement. This that the Postal Service states concern 3035.105; Public Representative: notice informs the public of the filing, competitive product(s), applicable Gregory S. Stanton; Comments Due: invites public comment, and takes other statutory and regulatory requirements December 7, 2020. administrative steps. include 39 U.S.C. 3632, 39 U.S.C. 3633, 6. Docket No(s).: MC2021–36 and DATES: Comments are due: December 7, 39 U.S.C. 3642, 39 CFR part 3035, and CP2021–37; Filing Title: USPS Request 2020. 39 CFR part 3040, subpart B. Comment to Add Parcel Select Contract 43 to ADDRESSES: Submit comments deadline(s) for each request appear in Competitive Product List and Notice of electronically via the Commission’s section II. Filing Materials Under Seal; Filing Filing Online system at http:// II. Docketed Proceeding(s) Acceptance Date: November 27, 2020; www.prc.gov. Those who cannot submit Filing Authority: 39 U.S.C. 3642, 39 CFR comments electronically should contact 1. Docket No(s).: MC2021–31 and 3040.130 through 3040.135, and 39 CFR CP2021–32; Filing Title: USPS Request the person identified in the FOR FURTHER 3035.105; Public Representative: to Add Parcel Select Contract 38 to INFORMATION CONTACT section by Gregory S. Stanton; Comments Due: Competitive Product List and Notice of telephone for advice on filing December 7, 2020. alternatives. Filing Materials Under Seal; Filing Acceptance Date: November 27, 2020; This Notice will be published in the FOR FURTHER INFORMATION CONTACT: Filing Authority: 39 U.S.C. 3642, 39 CFR Federal Register. David A. Trissell, General Counsel, at 3040.130 through 3040.135, and 39 CFR Erica A. Barker, 202–789–6820. 3035.105; Public Representative: Curtis SUPPLEMENTARY INFORMATION: E. Kidd; Comments Due: December 7, Secretary. Table of Contents 2020. [FR Doc. 2020–26637 Filed 12–2–20; 8:45 am] 2. Docket No(s).: MC2021–32 and BILLING CODE 7710–FW–P I. Introduction CP2021–33; Filing Title: USPS Request II. Docketed Proceeding(s) to Add Parcel Select Contract 39 to I. Introduction Competitive Product List and Notice of The Commission gives notice that the Filing Materials Under Seal; Filing Postal Service filed request(s) for the Acceptance Date: November 27, 2020; Commission to consider matters related Filing Authority: 39 U.S.C. 3642, 39 CFR to negotiated service agreement(s). The 3040.130 through 3040.135, and 39 CFR request(s) may propose the addition or 3035.105; Public Representative: Curtis removal of a negotiated service E. Kidd; Comments Due: December 7, agreement from the market dominant or 2020. the competitive product list, or the 3. Docket No(s).: MC2021–33 and modification of an existing product CP2021–34; Filing Title: USPS Request currently appearing on the market to Add Parcel Select Contract 40 to dominant or the competitive product 1 See Docket No. RM2018–3, Order Adopting list. Final Rules Relating to Non-Public Information, Section II identifies the docket June 27, 2018, Attachment A at 19–22 (Order No. number(s) associated with each Postal 4679).

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SECURITIES AND EXCHANGE options in which certain European (a) LCH SA would add a comment to COMMISSION index CDS are the underlying asset, i.e., highlight that although the given CDS on Markit iTraxx® Europe Index example pertains to iTraxx Swaptions, [Release No. 34–90525; File No. SR–LCH ® SA–2020–005] and iTraxx Crossover Index (‘‘iTraxx the same logic applies to CDX Swaptions’’), the proposed introduction Swaptions. Self-Regulatory Organizations; LCH of CDX Swaptions requires minimal (b) In the description of Step 2 SA; Notice of Filing of Partial changes to extend LCH SA’s existing regarding the calculation of the cost of Amendment No. 1 and Order Granting risk framework to this new product.6 As vega hedging, LCH SA would specify Accelerated Approval of Proposed described below, LCH SA is proposing that the volume of delta neutral Rule Change, as Modified by Partial such changes in its (i) Reference Guide: Swaption notional that it can unwind in Amendment No. 1, Relating to the CDS Margin Framework (‘‘CDSClear a day will be derived from a clearing Clearing of Options on Index Credit Margin Framework’’); 7 (ii) CDS Clearing member survey. Default Swaps in Respect of North Supplement (‘‘Supplement’’); and (iii) (c) In the description of Step 3 American Indices (More Specifically, CDS Clearing Procedures regarding the contributions to the CDX.NA.IG and CDX.NA.HY) (‘‘Procedures’’).8 In addition, LCH SA macro-hedge cost, LCH SA would proposes to make other changes specify that the volume of principal November 27, 2020. unrelated to the introduction of CDX index 5YR Off-The-Run-1 series Swaption notional that one can I. Introduction Swaptions, including changes to the Vega Margin that will apply to both reasonably unwind in a day is defined On September 24, 2020, Banque iTraxx Swaptions and CDX Swaptions, in the previous section on indices. LCH Centrale de Compensation, which which are also described below.9 SA would also add CDX Swaptions to conducts business under the name LCH the description of the variable beta (‘‘b’’) SA (‘‘LCH SA’’), filed with the A. Proposed Changes With Respect to that defines an index sub-family, either Securities and Exchange Commission CDX Swaptions Main or Xover for iTraxx and IG or HY (‘‘Commission’’), pursuant to Section 1. CDSClear Margin Framework for CDX. 19(b)(1) of the Securities Exchange Act (d) In the description of Step 4 of 1934 (‘‘Act’’) 1 and Rule 19b–4,2 a LCH SA is proposing to amend regarding the final Liquidity Charge and proposed rule change to permit the Paragraph 2.3.4, which concerns the to aggregate the costs of delta hedging clearing of options on index credit Daily Contributions Assessment, to and vega hedging, LCH SA would add default swaps (‘‘CDS’’) in respect of include CDX Swaptions. The Daily a formula to clarify that the existing North American indices (more Contributions Assessment is the methodology would also apply and to specifically, CDX.NA.IG and primary method by which LCH SA incorporate the Foreign Exchange rate CDX.NA.HY) (‘‘CDX Swaptions’’). The obtains Members’ daily price into the final Liquidity Charge formula proposed rule change was published for contributions to update implied to address CDX Swaptions. LCH SA comment in the Federal Register on volatilities on options. These price determined that no changes are required October 13, 2020.3 The Commission did contributions, in turn, would be used by to its liquidity and concentration risk not receive comments on the proposed LCH SA for marking the options book, margin methodology, as set forth in the rule change. On November 27, 2020, if certain conditions are met. The CDSClear Margin Framework, in LCH SA filed Partial Amendment No. 1 proposed change to the Daily connection with clearing CDX to the proposed rule change.4 The Contributions Assessment will require Swaptions.10 Commission is publishing this notice to Members to make price contributions on Currently, in the event of a clearing solicit comments on Partial Amendment CDX Swaptions for all strikes that are member default and the calculation of a No. 1 from interested persons and is multiples of 2.5 basis points for liquidity charge, LCH SA attempts to approving the proposed rule change, as CDX.NA.IG and 0.5 cents for source hedges from the CDS part of the modified by Partial Amendment No. 1 CDX.NA.HY of a given expiry when defaulting member’s portfolio using a (hereinafter, ‘‘proposed rule change’’), Members have at least one open delta-hedging algorithm to ensure on an accelerated basis. position on one strike for that expiry. minimal hedging costs before sourcing the hedges from the market.11 In this II. Description of the Proposed Rule This change would ensure that daily connection, LCH SA proposes to amend Change updates are available for LCH SA’s implied volatility measurements. Section 4.1.9 to reflect use of a member LCH SA is proposing to amend its Without this change, LCH SA would survey to determine the volume of the rules to permit the clearing of CDX delta neutral package of the selected 5 rely on Markit’s composite prices or use Swaptions. As LCH SA currently clears pre-defined rules to fill in missing data option that can be reasonably unwound in accordance with section 2.3.3.2 per day. LCH SA is also proposing 1 15 U.S.C. 78s(b)(1). (Missing Data Points) of the CDSClear additional language to confirm how 2 17 CFR 240.19b–4. currency conversion from USD to EUR 3 Self-Regulatory Organizations; LCH SA; Notice Margin Framework, consistent with of Filing of Proposed Rule Change Relating to the what LCH does for other options that it will apply in circumstances where Clearing of Options on Index Credit Default Swaps currently clears. options priced in USD form part of the in Respect of North American Indices (More delta-hedged package. Specifically, CDX.NA.IG and CDX.NA.HY), LCH SA is also proposing changes in Paragraph 4.2 sets forth the accrued Exchange Act Release No. 90099 (October 6, 2020); paragraph 4.1.9 of the CDSClear Margin coupon liquidation risk margin (i.e., 85 FR 64551 (October 13, 2020) (SR–LCH SA–2020– Framework, as outlined below: 005) (‘‘Notice’’). margin covering the risk that a 4 Partial Amendment No. 1 amends the LCH SA Reference Guide: CDS Margin Framework to reflect 6 See Notice, 85 FR at 64552. 10 See Notice, 85 FR at 64552. all of the changes discussed herein. Partial 7 Capitalized terms used but not defined herein 11 Id. (noting that in the event of a clearing Amendment No. 1 also includes Exhibit 4 (Text of have the same definitions as in the CDSClear member default, market feedback indicates that it the proposed change with the differences from the Margin Framework or Default Fund Methodology, is optimal from a friction cost standpoint for initial Exhibit 5C). as applicable. swaptions to be liquidated as a delta-hedged 5 The description herein is substantially 8 See Notice, 85 FR at 64552. package intended to trade and hedge an option excerpted from the Notice. 9 Id. along with an index).

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protection buyer will not be paying any the CDX Swaption Standard Terms Vega Margin with LCH SA’s approach accrued coupon via the Variation Supplement. across all products and business Margin (‘‘VM’’) between the time it LCH SA would also add references to segments. Vega Margin captures the risk defaults and the end of the liquidation a CDX as an Underlying Index and the of volatility changes in the options of its portfolio) for both CDS and CDS Swaption Type to the Schedules of premium relative to the strikes, i.e., the Options. The accrued coupon Appendix I (Form of Exercise Notice) skew risk and the risk of changes in the liquidation risk margin with respect to and Appendix II (Form of Abandonment volatility of volatility.12 To address a CDS Options remains the same, but Notice) to Part C of the Supplement. risk model validation finding, LCH SA would be amended to reflect that any In Appendix VIII (CCM Client is proposing to change its risk model such amount for CDX Swaptions Transaction Requirements) to Part C of from a parametric model to a historical contracts is converted from USD to EUR. the Supplement, LCH SA proposes to model, using predefined scenarios to As a result of the foregoing proposed amend Section 1 to refer to the CDX simulate the risk of volatility change. changes, LCH SA would update the Swaption Standard Terms Supplement This change in risk model would Content table and the summary of and to remove the definition of ‘‘STS introduce shocks on the volatility itself changes and make corresponding Supplement.’’ LCH SA would make a rather than solely on the calculation’s changes to provision numbering related change in Section 8.2 of this model parameters, as the current throughout the CDSClear Margin Appendix by replacing the current parametric model does. The proposed Framework. reference to the ‘‘STS Supplement’’ with historical model would use a new a reference to the ‘‘iTraxx® Swaption 2. Supplement methodology that relies on four regular Standard Terms Supplement’’ as this and four stressed historical scenarios for To allow for the clearing of CDX section concerns only iTraxx Swaptions. each index family, calibrated based on Swaptions, LCH SA is proposing a LCH SA would also add references to the worst skew risk and the volatility- ® number of changes in Part C of the the iTraxx Swaption Standard Terms of-volatility risk at given confidence Supplement to add or modify a number Supplement and the CDX Swaption levels, as outlined below. Under both of relevant definitions. Specifically, in Standard Terms Supplement or the models, Vega Margin represents an add- Section 1.2 (Terms defined in the CDS relevant section of such Supplement, as on amount to Spread Margin (i.e., a Clearing Supplement): applicable, and remove any reference to component of Total Initial Margin that (a) The proposed definition of the the STS Supplement in Sections 8.3 and covers the worst losses in the event of term ‘‘CDX Swaption Standard Terms 8.4 of this Appendix. unfavorable credit spread and volatility Supplement’’ would refer to the 3. Procedures moves) that accounts for potential applicable documentation for the CDX moves in implied volatility. LCH SA Swaptions, as published by Markit LCH SA also proposes to modify does not expect that the proposed North America, Inc. and as amended by Section 5 of the Procedures (CDS change from a parametric to a historical the Supplement. Clearing Operations) to include CDX model will have a significant Profit and (b) The definition of the term ‘‘Index Swaptions in the scope of the End of Loss (‘‘P&L’’) impact on the calculation Swaption Cleared Transaction Day Price Contribution as set out in of Vega Margin.13 Confirmation’’ would refer to the Paragraph 5.18. (a) LCH SA will develop the volatility applicable form of confirmation for CDX LCH SA would change references scenarios using historical data since Swaptions in new indent (b), and would from ‘‘CDS’’ to ‘‘CDS and an Index April 3, 2007. For each index family, make some minor corrections in new Swaption’’ in paragraphs 5.18.3 and LCH SA would identify historical indent (a) and in the last paragraph of 5.18.5, for instruments with a CDS scenarios by estimating the largest 5-day the definition. Contractual Currency in U.S. Dollar. In shifts in volatility distance, at a given (c) The proposed definition of the paragraph 5.18.4 (Use of composite percentile, between At-The-Money term ‘‘Submission Deadline’’ would spreads/prices), LCH SA would modify strikes and implied volatilities for provide for both the Markit iTraxx and the first sentence to ensure similar options with a delta of 10%, 25%, 75% CDX exercise windows in respect of clarity. In the same paragraph, LCH SA and 90%, to capture the deformation of different swaptions. would expand the scope of the End of volatility surface across strikes. (d) The definition of ‘‘Transaction Day Contributed Prices in respect of Data’’ would include a new reference to CDS with a Contractual Currency in (b) LCH SA would calibrate the skew the Option Type that is relevant for CDX U.S. Dollar to include Index Swaptions. and smile scenarios related to the option Swaptions. In paragraph 5.18.5(b), LCH SA would pricing against the worst volatility In addition, LCH SA proposes to remove the restriction to Index surface distortion (i.e., the largest replace all references to the standard Swaptions with a CDS Contractual changes of the volatility distance as fixed time of 4:00 p.m. (London time) or Currency in Euro, and separate the Delta explained above) at a given confidence 5:00 p.m. (Central European Time), Hedged Swaption Package into two sub- level. LCH SA would derive these which apply only to iTraxx Swaptions, sections in order to allow for the two scenarios from volatility shocks at each with the new defined term ‘‘Submission different timings of iTraxx Swaptions delta level described above, which LCH Deadline’’ in Sections 6.3, 6.4, 6.5 and CDX Swaptions. SA will use to shift the end of day (paragraph (c)), 6.10 (paragraph (b)) and volatilities, at the corresponding delta Sections 5.3, 5.5 and 5.7 of Appendix B. Other Changes Unrelated to CDX levels, to calibrate a set of shifted or VIII (CCM Client Transaction Swaptions Stochastic Volatility Inspired (‘‘SVI’’) Requirements). LCH SA is also proposing changes in scenarios as shown in the updated table For consistency purposes, LCH SA the CDSClear Margin Framework and in paragraph 3.9.2. would amend Section 7.2 (Creation of the Supplement that LCH SA (c) LCH SA proposes to adjust the Initial Single Name Cleared represented are unrelated to the CDX number of scenarios calculated for each Transactions for Settlement purposes in Swaptions initiative. index family from eight to four, because respect of Credit Events other than In section 3.9 of the CDSClear Margin M(M)R Restructuring) to include Framework, LCH SA proposes changes 12 See Notice, 85 FR at 64552. references to the relevant paragraph of to align the methodology for calculating 13 Id.

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of the shocks that the new historical risk provisions of Parts A and B of the that has taken into account the 2019 model will apply at volatility level. Supplement. LCH SA also proposes to ISDA NTCE Protocol (i.e., the versions In addition, LCH SA is proposing the remove the amounts of the Matched Pair applicable to Markit iTraxx and CDX following miscellaneous changes in the from Section 8.1 (Creation of Matched published on the Implementation Date CDSClear Margin Framework: Pairs) of Parts A and Part B of the of such Protocol). As a result of this (a) Section 3 provides the Total Initial Supplement, because LCH SA proposes change, LCH SA would renumber the Margin framework with respect to both that such amounts would be set forth in indents in Section 2.2 from (e) to (i). CDS and CDS Options. One component a new Clearing Notice that outlines the LCH SA also proposes to make the of the Total Initial Margin framework is maximum applicable Matched Pair following corrections to the the Short Charge, an amount which notional amounts. LCH SA represents Supplement: accounts for the risk of default by the that this proposed change would allow (a) In Sections 7.10 of Parts A and B, underlying constituent entities of the for greater flexibility in adapting these 14 LCH SA would replace the reference to relevant index. While the amounts according to market conditions a ‘‘CDS Clearing Member’’ with methodology for calculating Short and evolving open interest.15 ‘‘Clearing Member’’ to use the correct Charge margin in section 3.1 would In addition, LCH SA proposes to defined term. remain the same, LCH SA would amend remove the conditional references to (b) In Sections 9.1 of Parts A and B, the summary language to specify that it ‘‘if’’ from Section 2.4 and Appendix XIII paragraph (c), LCH SA would specify includes the P&L impact of liquidating (Section 2.6) of Part B of the that the Self Referencing Transaction is a defaulting member’s portfolio under Supplement and from Section 2.3 and a Clearing Member Self Referencing one or two credit events. Currently, the Appendix VIII (Section 2.4) of Part C of Transaction to be consistent with the number of credit events that LCH SA the Supplement, given that the Protocol title of Section 9.1. considers is set to two. The Risk Effectiveness Condition as defined in (c) In Section 1.2 of Part B, in the Overview table in paragraph 3.2 also the ISDA 2019 Narrowly Tailored Credit would reflect this change. As per the Event (‘‘NTCE’’) Protocol published by definition of ‘‘Index Cleared Transaction model used for linear U.S. products, the the International Swaps and Derivatives Confirmation,’’ LCH SA would insert Short Charge amount would also cover Association, Inc. (‘‘ISDA’’) on August the correct name of the publisher of the the possibility of a default in respect of 27, 2019 is now satisfied. For documentation for Markit CDX. an exposure representing the average consistency purposes, LCH SA would (d) In Section 1.2 of Part C, LCH SA net short exposure of the ten (10) make an equivalent amendment to would correct a typographical error in riskiest exposures with the defined Appendix XIII of Part A of the the definition of ‘‘Swaption recovery rate cap. Since the approach in Supplement (Section 2.6) in respect of Restructuring Cleared Transaction’’ and respect of iTraxx Swaptions only the 2014 ISDA Credit Derivatives remove the word ‘‘Eligible’’ from the accounts for the risk of default of the Definitions Protocol published by ISDA definition of ‘‘Underlying Index entity with the largest net short on August 21, 2014. Transaction’’ as an Eligible Index exposure, LCH SA is amending the LCH SA would also remove references Swaption is not a defined term. language to include the additional to the Implementation Date as provided (e) In Appendix VIII of Part C, LCH default risk that it must take into for in the 2019 ISDA NTCE Protocol SA would remove the definitions from account in respect of CDX Swaptions on from the definition of the ‘‘iTraxx® Section 1 as these terms are already CDX.NA.HY. As a result of these Swaption Standard Terms Supplement’’ defined in Section 1.2 of Part C. changes, LCH SA would also remove the in Section 1.2 of Part C of the III. Commission Findings specific rule to calculate the Financial Supplement to refer to the current Short Charge on Financial entities version of this document which was Section 19(b)(2)(C) of the Act directs (which covered the default risk by the published on March 20, 2017. LCH SA the Commission to approve a proposed two largest Financials entities stated that at the time that ISDA had rule change of a self-regulatory comprising the underlying constituent drafted the 2019 ISDA NTCE Protocol- organization if it finds that the proposed entities of the relevant index). related amendments and submitted rule change is consistent with the (b) LCH SA would remove a reference them to the regulatory process, there requirements of the Act and the rules to a 10-year sample for the Foreign was an initial draft Swaption Standard and regulations thereunder applicable to Exchange rate from paragraph 3.4.8.3, Terms Supplement that took account of the organization.18 For the reasons given because it was not an accurate this Protocol.16 LCH SA also stated that below, the Commission finds that the description of how LCH SA computes this draft did not progress, and that the proposed rule change is consistent with the Foreign Exchange rate. most recent, applicable version remains Section 17A(b)(3)(F) of the Act 19 and (c) LCH SA also proposes to correct a the version published in 2017.17 Rule 17Ad–22(e)(6)(i) thereunder.20 typographical error in paragraph 3.8.2 Consequently, in Section 2.2 (Index A. Consistency With Section (double parenthesis and period Swaption Cleared Transaction 17A(b)(3)(F) of the Act missing). Confirmation) of Part C of the LCH SA also proposes several Supplement, LCH SA would amend any Section 17A(b)(3)(F) of the Act miscellaneous changes in the confirmation in respect of a Swaption requires, among other things, that the Supplement for purposes of clarification by specifying in a new indent (d) that rules of LCH SA be designed to promote or harmonization, as described below. the Standard Terms Date applicable to the prompt and accurate clearance and Specifically, in Part C of the the underlying transaction of a settlement of securities transactions Supplement, Section 9.1 (Creation of Swaption will be the most updated and, to the extent applicable, derivative Matched Pairs), LCH SA would add a version of the Standard Terms agreements, contracts, and transactions principle governing the size of the Supplement. This change will ensure and to assure the safeguarding of Matched Pairs that it would create in that the applicable version is the one securities and funds which are in the the context of a Restructuring or an Exercise to align with equivalent 15 See Notice, 85 FR at 64553. 18 15 U.S.C. 78s(b)(2)(C). 16 See Notice, 85 FR at 64554. 19 15 U.S.C. 78q–1(b)(3)(F). 14 See Notice, 85 FR at 64553. 17 Id. 20 17 CFR 240.17Ad–22(e)(6)(i).

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custody or control of LCH SA or for Transaction, removing the term possibility of a default in respect of an which it is responsible.21 ‘‘Eligible’’ from the definition of exposure representing the average net As described above in Section II.A, ‘‘Underlying Index Transaction’’ in short exposure of the ten riskiest LCH SA is proposing to revise its Section 1.2 of Part C as a typographical exposures with the defined recovery CDSClear Margin Framework, error), as well as wording changes to rate cap, which is an additional default Supplement, and Procedures in order to reflect the fact that the Protocol risk posed by CDX Swaptions. The extend their applicability to CDX Effectiveness Condition with regard to Commission therefore believes that this Swaptions. For example, the proposed the 2019 ISDA NTCE Protocol published proposed change would enhance LCH change to the Daily Contributions by ISDA on August 27, 2019 is now SA’s risk-based margin system by Assessment in the CDSClear Margin satisfied along with the various clean-up considering and producing margin Framework would require Members to and typographical changes. The levels commensurate with the risks and make price contributions on CDX Commission believes that these particular attributes of CDX Swaptions. Swaptions for all strikes that are clarifications strengthen LCH SA’s risk The Commission also believes that the multiples of 2.5 basis points for management documents with clear and proposed rule changes to add the new CDX.NA.IG and 0.5 cents for up-to-date information, which in turn is methodology for calculating Vega CDX.NA.HY of a given expiry when consistent with protecting investors and Margin, based on a historical model Members have at least one open the public interest. approach rather than a parametric position on one strike for that expiry. LCH SA is also proposing changes to model, to account for the skew risk and The revisions to the Supplement would the Vega Margin methodology. volatility-of-volatility risk specific to allow the clearing of CDX Swaptions by Specifically, LCH SA is proposing to CDS Options would likewise strengthen amending various definitions to make transition from a parametric model to a LCH SA’s ability to produce margins them applicable to CDS Swaptions. The historical model, using predefined commensurate with these products Procedures similarly would be revised scenarios to simulate the risk of because this proposed approach would to include CDX Swaptions in, for volatility change. The Commission be based on known, rather than example, the scope of the End of Day believes that this proposed change will unobservable, parameters used in Price Contribution. The language in the enable LCH SA to more accurately assessing the value of an option. Short Charge component of the total capture changes in option value due to For these reasons, the Commission initial margin has also been amended to volatility and generate margins finds that the proposed rule change is include the additional default risk that commensurate with the risks and consistent with Rule 17Ad–22(e)(6)(i).24 must be taken into account with CDX attributes of CDS and CDS options, Swaptions. The Commission which in turn will enhance LCH SA’s IV. Solicitation of Comments understands that, taken together, these ability to manage the risks of Interested persons are invited to changes would amend LCH SA’s risk transactions in CDX Swaptions and submit written data, views, and management system and clearing ultimately to promptly and accurately arguments concerning the foregoing, procedures to ensure that LCH SA can settle securities transactions and including whether the proposed rule appropriately manage the risks of safeguard funds and securities. change, as modified by Partial transactions in CDX Swaptions and, in For the reasons stated above, the Amendment No. 1, is consistent with turn, to help ensure that LCH SA has Commission finds that the proposed the Act. Comments may be submitted by sufficient financial resources. The rule change is consistent with Section any of the following methods: Commission therefore believes that 17A(b)(3)(F) of the Act.22 these changes would promote the Electronic Comments prompt and accurate clearance and B. Consistency With Rule 17Ad– • Use the Commission’s internet settlement of CDX Swaptions. Similarly, 22(e)(6)(i) comment form (http://www.sec.gov/ given that mismanagement of the risks Rule 17Ad–22(e)(6)(i) requires that rules/sro.shtml); or associated with clearing CDX Swaptions LCH SA establish, implement, maintain, • Send an email to rule-comments@ could cause LCH SA to realize losses on and enforce written policies and sec.gov. Please include File Number SR– such transactions and threaten its ability procedures reasonably designed, as LCH SA–2020–005 on the subject line. to operate, thereby threatening access to applicable, to cover its credit exposures Paper Comments securities and funds in LCH SA’s to its participants by establishing a risk- • control, the Commission believes that based margin system that, at a minimum Send paper comments in triplicate the proposed rule change would help considers, and produces margin levels to Secretary, Securities and Exchange assure the safeguarding of securities and commensurate with, the risks and Commission, 100 F Street NE, funds which are in the custody or particular attributes of each relevant Washington, DC 20549–1090. control of LCH SA or for which it is product, portfolio, and market.23 All submissions should refer to File responsible. As noted above, the proposal would Number SR–LCH SA–2020–005. This LCH SA is also proposing amend the CDSClear Margin Framework file number should be included on the miscellaneous changes that are with respect to the Short Charge subject line if email is used. To help the unrelated to CDX Swaptions. For component of the total initial margin to Commission process and review your instance, LCH SA is proposing include the additional default risk that comments more efficiently, please use corrections to various terminology in must be taken into account with options only one method. The Commission will the Supplement (replacing reference in on CDX.NA.HY. Such a change is post all comments on the Commission’s Section 7.10 of Parts A and B to a ‘‘CDS necessary because the current approach internet website (http://www.sec.gov/ Clearing Member’’ with the correct with iTraxx Swaptions only accounts rules/sro.shtml). Copies of the defined term ‘‘Clearing Member,’’ for the risk of default of the entity with submission, all subsequent specifying in Section 9.1 of Parts A and the largest net short exposure, and the amendments, all written statements B that the Self Referencing Transaction CDX Swaptions approach covers the with respect to the proposed rule is a Clearing Member Self Referencing change that are filed with the 22 15 U.S.C. 78q–1(b)(3)(F). 21 15 U.S.C. 78q–1(b)(3)(F). 23 17 CFR 240.17Ad–22(e)(6)(i). 24 17 CFR 240.17Ad–22(e)(6)(i).

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Commission, and all written Section 17A(b)(3)(F) of the Act 27 and 77) was deemed to have been approved communications relating to the Rule 17Ad–22(e)(6)(i) thereunder.28 by the Commission. proposed rule change between the It is therefore ordered pursuant to For the Commission, by the Division of 29 Commission and any person, other than Section 19(b)(2) of the Act that the Trading and Markets, pursuant to delegated those that may be withheld from the proposed rule change, as modified by authority.5 public in accordance with the Partial Amendment No. 1 (SR–LCH SA– J. Matthew DeLesDernier, provisions of 5 U.S.C. 552, will be 2020–005), be, and hereby is, Assistant Secretary. available for website viewing and approved.30 [FR Doc. 2020–26596 Filed 12–2–20; 8:45 am] printing in the Commission’s Public For the Commission, by the Division of BILLING CODE 8011–01–P Reference Room, 100 F Street NE, Trading and Markets, pursuant to delegated Washington, DC 20549 on official authority.31 business days between the hours of J. Matthew DeLesDernier, SECURITIES AND EXCHANGE 10:00 a.m. and 3:00 p.m. Copies of the Assistant Secretary. COMMISSION filing also will be available for [FR Doc. 2020–26597 Filed 12–2–20; 8:45 am] inspection and copying at the principal office of LCH SA and on LCH SA’s BILLING CODE 8011–01–P [Release No. 34–90524; File No. SR–ICC– 2020–013] website at: https://www.lch.com/ resources/rulesand-regulations/ SECURITIES AND EXCHANGE Self-Regulatory Organizations; ICE proposed-rule-changes-0. All comments COMMISSION Clear Credit LLC; Notice of Filing and received will be posted without change. Immediate Effectiveness of Proposed Persons submitting comments are [Release No. 34–90526; File No. SR–NYSE– 2020–77] Rule Change, as Modified by Partial cautioned that we do not redact or edit Amendment No. 1, Relating to ICC’s personal identifying information from Fee Schedule comment submissions. You should Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of submit only information that you wish November 27, 2020. to make available publicly. All Deemed Approval of a Proposed Rule Change To Adopt Rule 8.601 (Active Pursuant to Section 19(b)(1) of the submissions should refer to File 1 Proxy Portfolio Shares) and Rule 8.900 Securities Exchange Act of 1934 and Number SR–LCH SA–2020–005 and 2 (Managed Portfolio Shares), Amend Rule 19b–4, notice is hereby given that should be submitted on or before on November 16, 2020, ICE Clear Credit December 24, 2020. the Preamble to Rule 8P, and Amend Section 302.00 of the Listed Company LLC (‘‘ICC’’) filed with the Securities V. Accelerated Approval of the Manual and Exchange Commission the proposed Proposed Rule Change, as Modified by rule change as described in Items I, II, Partial Amendment No. 1 November 27, 2020. and III below, which Items have been On September 22, 2020, New York prepared primarily by ICC. On The Commission finds good cause, Stock Exchange LLC filed with the November 25, 2020, ICC filed Partial pursuant to Section 19(b)(2) of the Securities and Exchange Commission Amendment No. 1 to the proposed rule Act,25 to approve the proposed rule (‘‘Commission’’), pursuant to Section change.3 ICC filed the proposed rule change prior to the 30th day after the 19(b)(1) of the Securities Exchange Act change pursuant Section 19(b)(3)(A) of date of publication of Partial of 1934 (‘‘Act’’) 1 and Rule 19b–4 the Act 4 and Rule 19b–4(f)(2) Amendment No. 1 in the Federal thereunder,2 a proposed rule change to thereunder,5 such that the proposed rule Register. As discussed above, Partial adopt Rule 8.601 (Active Proxy Portfolio change was immediately effective upon Amendment No. 1 amends the Shares) and Rule 8.900 (Managed filing with the Commission. The Reference Guide: CDS Margin Portfolio Shares), amend the preamble Commission is publishing this notice to Framework to reflect all of the changes to Rule 8P, and amend Section 302.00 solicit comments on the proposed rule discussed in this Order. By updating the of the Listed Company Manual to change, as modified by Partial Reference Guide: CDS Margin accommodate the listing of Active Proxy Amendment No. 1 (hereinafter the Framework to reflect all of the changes Portfolio Shares and Managed Portfolio ‘‘proposed rule change’’), from being made, Partial Amendment No. 1 Shares. interested persons. ensures that the exhibit 5C accurately The proposed rule change was I. Clearing Agency’s Statement of the reflects all intended rule changes and is published for comment in the Federal Terms of Substance of the Proposed designed, in general, to protect investors Register on October 9, 2020.3 The Rule Change and the public interest, consistent with Commission received no comment Section 17A(b)(3)(F) of the Act. letters on the proposed rule change. The principal purpose of the Accordingly, the Commission finds As of November 23, 2020, pursuant to proposed rule change is to modify ICC’s good cause for approving the proposed Section 19(b)(2)(D) of the Act,4 the fee schedule to introduce two credit rule change, as modified by Partial proposed rule change (SR–NYSE–2020– default index swaption (‘‘Index Amendment No. 1, on an accelerated Swaption’’) volume incentive programs. basis, pursuant to Section 19(b)(2) of the 27 15 U.S.C. 78q–1(b)(3)(F). 26 Exchange Act. 28 17 CFR 240.17Ad–22(e)(6)(i). 5 17 CFR 200.30–3(a)(12). 29 VI. Conclusion 15 U.S.C. 78s(b)(2). 1 15 U.S.C. 78s(b)(1). 30 In approving the proposed rule change, the 2 17 CFR 240.19b–4. On the basis of the foregoing, the Commission considered the proposal’s impact on 3 In Partial Amendment No. 1 to the proposed Commission finds that the proposed efficiency, competition, and capital formation. 15 rule change, ICC provided additional details and rule change is consistent with the U.S.C. 78c(f). analyses surrounding the proposed rule change in 31 17 CFR 200.30–3(a)(12). requirements of the Act, and in the form of a confidential Exhibit 3. Partial 1 15 U.S.C. 78s(b)(1). Amendment No. 1 did not make any changes to the particular, with the requirements of 2 17 CFR 240.19b–4. substance of the filing or the text of the proposed 3 See Securities Exchange Act Release No. 90091 rule change. 25 15 U.S.C. 78s(b)(2). (Oct. 5, 2020), 85 FR 64194. 4 15 U.S.C. 78s(b)(3)(A). 26 15 U.S.C. 78s(b)(2). 4 15 U.S.C. 78s(b)(2)(D). 5 17 CFR 240.19b–4(f)(2).

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These revisions do not require any programs. Currently, clearing fees are the equitable allocation of reasonable changes to the ICC Clearing Rules. due by CPs in accordance with the dues, fees, and other charges among its product, amount and currency set out in participants. II. Clearing Agency’s Statement of the the fee schedule. ICC proposes to amend Purpose of, and Statutory Basis for, the ICC believes that the proposed fee this fee schedule to include details on Proposed Rule Change discounts for house origin Index the volume incentive programs, subject Swaption transactions have been set at In its filing with the Commission, ICC to any regulatory review or approval an appropriate level. In ICC’s view, the included statements concerning the process. proposed fees are reasonable under each purpose of and basis for the proposed ICC previously filed with the proposed volume incentive program as rule change and discussed any Commission the relevant clearing fees the discounts correspond with comments it received on the proposed 9 for Index Swaptions and further anticipated volumes, costs and rule change. The text of these statements proposes to amend the CP fee schedule expenses, and revenues under each may be examined at the places specified to introduce the volume incentive program, and they consider current in Item IV below. ICC has prepared programs for house origin Index market activity as well as anticipated summaries, set forth in sections (A), (B), Swaption transactions. Under the market activity with respect to clearing and (C) below, of the most significant amended fee schedule, the proposed house origin Index Swaption aspects of these statements. Standard Program automatically, and transactions at ICC. Namely, in (A) Clearing Agency’s Statement of the without further action by CPs, applies to determining the appropriate discount Purpose of, and Statutory Basis for, the CPs and provides a tiered discount level and program structure, ICC schedule based on USD equivalent, non- Proposed Rule Change discussed the proposed volume discounted Index Swaption fees billed incentive programs with its Board (who (a) Purpose since the start of the year (‘‘Billed approved the programs and discounts) Fees’’). The first 300,000 of Billed Fees The proposed changes are intended to and took into account factors such as are not discounted, a 10% discount is modify ICE Clear Credit’s fee schedule anticipated volume, revenue, expenses, provided for the second 300,000 of to introduce two Index Swaption and CP market participation in this Billed Fees, a 20% discount is provided volume incentive programs for house clearing service, including based on for the third 300,000 of Billed Fees, and origin Index Swaption transactions. different fee levels. More specifically, a 30% discount is provided for all Pursuant to an Index Swaption, one the proposed discounts are associated party (the ‘‘Swaption Buyer’’) has the cleared Index Swaptions above that level. As an alternative to the Standard with anticipated volumes via the tiered right (but not the obligation) to cause discount schedule in the Standard the other party (the ‘‘Swaption Seller’’) Program, CPs may elect to participate in the annual Prepaid Program. For Program and the upfront payment to enter into an index credit default applied toward clearing fees in the swap transaction at a pre-determined calendar year 2021, the proposed Prepaid Program election deadline is Prepaid Program, and are designed to strike price on a specified expiration encourage CP market participation to date on specified terms.6 In the case of January 25, 2021 and requires an upfront payment of $750,000 by bring increased volume to grow the Index Swaptions that may be cleared by clearing service while properly ICC, the underlying index credit default February 1, 2021. Index Swaption fees Ö compensating ICC for the risks, costs swap is limited to certain CDX and are $2/million or 2/million, and the upfront payment is applied toward the and expenses of clearing house origin iTraxx Europe index credit default Index Swaption transactions. swaps that are accepted for clearing by first $750,000 of Index Swaption Moreover, the proposed fee changes ICC, and which would be automatically clearing fees due in 2021. The discount will apply equally to all market cleared by ICC upon exercise of the or prepaid fee schedule would be participants clearing house origin Index Index Swaption by the Swaption Buyer applied at the time of invoice. Swaption transactions. Namely, the in accordance with its terms.7 The (b) Statutory Basis Standard Program automatically, and proposed changes are described in ICC believes that the proposed rule without further action by CPs, applies to detail as follows. change is consistent with the all CPs. As an alternative to the ICC maintains a Clearing Participant requirements of the Act, including Standard Program, any CP may elect to (‘‘CP’’) fee schedule 8 that is publicly Section 17A of the Act 10 and the participate in the annual Prepaid available on its website, which ICC regulations thereunder applicable to it. Program, which requires election and an proposes to update in connection with More specifically, the proposed rule upfront payment by specified dates. the proposed volume incentive change establishes or changes a member Therefore, the proposed rule change due, fee or other charge imposed by ICC 6 ICC previously filed with the Commission provides for the equitable allocation of changes to certain other policies and procedures under Section 19(b)(3)(A)(ii) of the reasonable dues, fees and other charges 11 12 related to clearing Index Swaptions (the ‘‘Swaption Act and Rule 19b–4(f)(2) among participants, within the meaning Rule Filings’’). See the Swaption Rule Filings for thereunder. ICC believes the proposed of Section 17A(b)(3)(D) of the Act.14 ICC additional details. SEC Release No. 34–87297 rule change is consistent with the therefore believes that the proposed rule (October 15, 2019) (approval), 84 FR 56270 (October requirements of the Act and the rules 21, 2019) (SR–ICC–2019–007); SEC Release No. 34– change is consistent with the 89142 (June 24, 2020) (approval), 85 FR 39226 (June and regulations thereunder applicable to requirements of Section 17A of the 30, 2020) (SR–ICC–2020–002); SEC Release No. 34– ICC, in particular, to Section Act 15 and the regulations thereunder 89436 (July 31, 2020) (approval), 85 FR 47827 17A(b)(3)(D),13 which requires that the applicable to it and is appropriately (August 6, 2020) (SR–ICC–2020–008); SEC Release rules of the clearing agency provide for No. 34–89948 (September 22, 2020) (approval), 85 filed pursuant to Section 19(b)(3)(A) of FR 60845 (September 28, 2020) (SR–ICC–2020– the Act 16 and paragraph (f)(2) of Rule 010). 9 SEC Release No. 34–90299 (October 30, 2020) 19b–4 17 thereunder. 7 Index Swaptions are also referred to herein and (notice), 85 FR 70700 (November 5, 2020) (SR–ICC– in the Swaption Rule Filings as ‘‘index options’’ or 2020–012). ‘‘index CDS options’’, or in similar terms. 10 15 U.S.C. 78q–1. 14 Id. 8 CP fee details available at: https:// 11 15 U.S.C. 78s(b)(3)(A)(ii). 15 15 U.S.C. 78q–1. www.theice.com/publicdocs/clear_credit/ICE_ 12 17 CFR 240.19b–4(f)(2). 16 15 U.S.C. 78s(b)(3)(A). Clear_Credit_Fees_Clearing_Participant.pdf. 13 15 U.S.C. 78q–1(b)(3)(D). 17 17 CFR 240.19b–4(f)(2).

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(B) Clearing Agency’s Statement on • Send an email to rule-comments@ DEPARTMENT OF TRANSPORTATION Burden on Competition sec.gov. Please include File Number SR– ICC does not believe the proposed ICC–2020–013 on the subject line. Federal Aviation Administration rule change would have any impact, or Paper Comments impose any burden, on competition not [Docket No. FAA–2020–1130; Notice of necessary or appropriate in furtherance Send paper comments in triplicate to Availability Docket No. 20–ANE–6] of the purpose of the Act. As discussed Secretary, Securities and Exchange Notice of Availability of Categorical above, the proposed changes modify Commission, 100 F Street NE, Exclusion and Record of Decision ICC’s fee schedule to introduce two Washington, DC 20549. volume incentive programs for house (CATEX/ROD) for Boston Harbor origin Index Swaption transactions and All submissions should refer to File Seaplane Operations, MA will apply uniformly across all market Number SR–ICC–2020–013. This file participants clearing house origin Index number should be included on the AGENCY: Federal Aviation Swaption transactions. The subject line if email is used. To help the Administration, (FAA), DOT. implementation of such changes does Commission process and review your ACTION: Notice of availability. not preclude other market participants comments more efficiently, please use from offering similar incentive only one method. The Commission will SUMMARY: The FAA, Eastern Service programs. Moreover, ICC does not post all comments on the Commission’s Center is issuing this notice to advise believe that the amendments would internet website (http://www.sec.gov/ the public of the availability of the adversely affect the ability of market rules/sro.shtml). Copies of the Categorical Exclusion/Record of participants to access clearing services. submission, all subsequent Decision (CATEX/ROD) for the Boston Accordingly, ICC does not believe the amendments, all written statements Harbor Seaplane Operations. The FAA amendments impose any burden on with respect to the proposed rule reviewed the action and determined it competition not necessary or change that are filed with the to be categorically excluded from appropriate in furtherance of the Commission, and all written further environmental review. purpose of the Act. communications relating to the FOR FURTHER INFORMATION CONTACT: Mr. (C) Clearing Agency’s Statement on proposed rule change between the Andrew Pieroni, Federal Aviation Comments on the Proposed Rule Commission and any person, other than Administration, Operations Support Change Received From Members, those that may be withheld from the Group, Eastern Service Center, 1701 Participants or Others public in accordance with the Columbia Avenue, College Park, Georgia Written comments relating to the provisions of 5 U.S.C. 552, will be 30337, (404) 305–5586. proposed rule change have not been available for website viewing and solicited or received. ICC will notify the printing in the Commission’s Public SUPPLEMENTARY INFORMATION: The Commission of any written comments Reference Room, 100 F Street NE, Federal Aviation Administration (FAA) received by ICC. Washington, DC 20549, on official proposes to implement a Letter of Agreement (LOA) between Boston business days between the hours of III. Date of Effectiveness of the Airport Traffic Control Tower (BOS 10:00 a.m. and 3:00 p.m. Copies of such Proposed Rule Change and Timing for ATCT), Boston Consolidated Terminal filings will also be available for Commission Action Radar Approach Control (A90) and inspection and copying at the principal Tailwind Air Service for seaplane The foregoing rule change has become office of ICE Clear Credit and on ICE effective pursuant to Section 19(b)(3)(A) operations in the Boston, Massachusetts Clear Credit’s website at https:// of the Act 18 and paragraph (f) of Rule Inner Harbor. This proposed LOA www.theice.com/clear-credit/regulation. 19b–4 19 thereunder. At any time within would ensure standardized, safe and de- 60 days of the filing of the proposed rule All comments received will be posted conflicted seaplane operations in the change, the Commission summarily may without change. Persons submitting Boston, Massachusetts Inner Harbor temporarily suspend such rule change if comments are cautioned that we do not from BOS ATCT operations and allows it appears to the Commission that such redact or edit personal identifying for efficient airspace operations in the action is necessary or appropriate in the information from comment submissions. General Edward Lawrence Logan public interest, for the protection of You should submit only information International Airport (BOS) Class B investors, or otherwise in furtherance of that you wish to make available airspace. The proposed VFR handling of the purposes of the Act. publicly. All submissions should refer seaplane arrivals and departures will enhance safety and minimize delays for IV. Solicitation of Comments to File Number SR–ICC–2020–013 and should be submitted on or before aircraft at BOS. The FAA reviewed the Interested persons are invited to December 24, 2020. action and determined it to be submit written data, views, and categorically excluded from further arguments concerning the foregoing, For the Commission, by the Division of environmental review according to FAA including whether the proposed rule Trading and Markets, pursuant to delegated Order 1050.1F, Environmental Impacts: change is consistent with the Act. authority.20 Policies and Procedures. The applicable Comments may be submitted by any of J. Matthew DeLesDernier, categorical exclusion is § 5–6.S(i.). the following methods: Assistant Secretary. Issued in College Park, Georgia, on Electronic Comments [FR Doc. 2020–26595 Filed 12–2–20; 8:45 am] November 24, 2020. • Use the Commission’s internet BILLING CODE 8011–01–P Andrew Pieroni, comment form (http://www.sec.gov/ Environmental Protection Specialist, rules/sro.shtml); or Operations Support Group, Eastern Service Center, Air Traffic Organization. 18 15 U.S.C. 78s(b)(3)(A). [FR Doc. 2020–26603 Filed 12–2–20; 8:45 am] 19 17 CFR 240.19b–4(f)(2). 20 17 CFR 200.30–3(a)(12). BILLING CODE 4910–13–P

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DEPARTMENT OF TRANSPORTATION Background: The Federal Register Issued in Washington, DC, on November Notice with a 60-day comment period 30, 2020. Federal Aviation Administration soliciting comments on the following Dwayne C. Morris, [Docket No. FAA–2020–0257] collection of information was published Project Manager, Flight Standards Service, on March 13, 2020 (85 FR 14723). In General Aviation and Commercial Division. Agency Information Collection 2018, Congress passed the FAA [FR Doc. 2020–26617 Filed 12–2–20; 8:45 am] Activities: Requests for Comments; Reauthorization Act of 2018 (Pub. L. BILLING CODE 4910–13–P Clearance of a New Approval of 115–254). Section 44809 of Public Law Information Collection: Limited 115–254 allows a person to operate a Recreational Unmanned Aircraft small unmanned aircraft (UA) without DEPARTMENT OF TRANSPORTATION Operation Applications specific certification or operating Federal Aviation Administration AGENCY: Federal Aviation authority from the FAA if the operation [Docket No. FAA–202–0264] Administration (FAA), DOT. adheres to certain limitations. These limitations require the FAA to recognize ACTION: Notice and request for Agency Information Collection community-based organizations (CBOs), comments. Activities: Requests for Comments; develop and administer an aeronautical Clearance of Renewed Approval of SUMMARY: In accordance with the knowledge and safety test, establish Information Collection: Experimental Paperwork Reduction Act of 1995, FAA fixed flying sites, and approve standards Permits for Reusable Suborbital invites public comments about our and limitations for unmanned aircraft Rockets. intention to request Office of weighing more than 55 pounds. The Management and Budget (OMB) information will be collected online. AGENCY: Federal Aviation approval for a new information The information collected will be Administration (FAA), DOT. collection. The Federal Register Notice limited to only that necessary for the ACTION: Notice and request for with a 60-day comment period soliciting FAA to complete a review of an comments. comments on the following collection of application under the following SUMMARY: In accordance with the information was published on March statutory requirements: 13, 2020. The information collected will Paperwork Reduction Act of 1995, FAA be used to recognize Community Based • § 44809(c)(1), Operations at Fixed invites public comments about our Organizations (CBOs), administer an Sites intention to request the Office of aeronautical knowledge and safety test, • § 44809(c)(2)(a), Standards and Management and Budget (OMB) establish fixed flying sites, and approve Limitations—UA Weighing More approval to renew an information standards and limitations for Unmanned Than 55 Pounds collection. The Federal Register Notice with a 60-day comment period soliciting Aircraft Systems (UAS) weighing more • than 55 pounds. § 44809(c)(2)(b), Operations at Fixed comments on the following collection of Sites—UA Weighing More Than 55 DATES: Written comments should be information was published on April 08, Pounds submitted by January 4, 2021. 2020. The FAA collects information • from applicants for experimental ADDRESSES: Written comments and § 44809(g)(1), Aeronautical permits in order to determine whether recommendations for the proposed Knowledge and Safety Test they satisfy the requirements for information collection should be sent • § 44809(i), Recognition of obtaining an experimental permit. within 30 days of publication of this Community-Based Organizations notice to www.reginfo.gov/public/do/ DATES: Written comments should be PRAMain. Find this particular Respondents: Individuals and submitted by January 4, 2021. information collection by selecting organizations operating under the ADDRESSES: Written comments and ‘‘Currently under 30-day Review—Open Exception for Limited Recreational recommendations for the proposed for Public Comments’’ or by using the Operations of Unmanned Aircraft who information collection should be sent search function. wish to be recognized as CBOs, within 30 days of publication of this administer the aeronautical knowledge FOR FURTHER INFORMATION CONTACT: notice to www.reginfo.gov/public/do/ Kevin Morris by email at: kevin.morris@ and safety test, establish fixed flying PRAMain. Find this particular faa.gov; phone: (202) 267–1078. sites, and have standards and information collection by selecting limitations for unmanned aircraft ‘‘Currently under 30-day Review—Open SUPPLEMENTARY INFORMATION: for Public Comments’’ or by using the Public Comments Invited: You are weighing more than 55 pounds search function. asked to comment on any aspect of this approved. information collection, including (a) Frequency: On occasion. FOR FURTHER INFORMATION CONTACT: Whether the proposed collection of Charles Huet by email at: Charles.huet@ Estimated Average Burden per faa.gov; phone: 202–267–7427. information is necessary for FAA’s Response: § 44809(c)(1) Operations at performance; (b) the accuracy of the SUPPLEMENTARY INFORMATION: Fixed Sites—Operating Procedure Public Comments Invited: You are estimated burden; (c) ways for FAA to Required: 30 minutes; § 44809(c)(2)(b) enhance the quality, utility and clarity asked to comment on any aspect of this Operations at Fixed Sites—Unmanned information collection, including (a) of the information collection; and (d) Aircraft Weighing More Than 55 ways that the burden could be Whether the proposed collection of Pounds: Fixed Flying Site approval: 30 information is necessary for FAA’s minimized without reducing the quality minutes; § 44809(g)(1) Aeronautical of the collected information. performance; (b) the accuracy of the Knowledge and Safety Test—General: estimated burden; (c) ways for FAA to OMB Control Number: 2120–XXXX. 34 hours; § 44809(i) Recognition of Title: Limited Recreational Unmanned enhance the quality, utility and clarity Community-Based Organizations: 2 Aircraft Operation Applications. of the information collection; and (d) Form Numbers: Online collection. hours. ways that the burden could be Type of Review: New information Estimated Total Annual Burden: minimized without reducing the quality collection. 1,224 hours. of the collected information.

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OMB Control Number: 2120–0722. training and showing compliance with experimental permit would jeopardize Title: Experimental Permits for the regulations. The information the foreign policy or national security Reusable Suborbital Rockets. collected includes data required for interests of the U.S. Form Numbers: There are no FAA performing a safety review, which Respondents: Approximately 4 forms associated with this collection. includes a technical assessment to applicants for experimental permits. Type of Review: Renewal of an determine if the applicant can launch a information collection. Frequency: On occasion. reusable suborbital rocket without Background: The Federal Register Estimated Average Burden per Notice with a 60-day comment period jeopardizing public health and safety Response: 1,900 hours. soliciting comments on the following and the safety of property. This information collection requirement is Estimated Total Annual Burden: collection of information was published 2,533 hours per year. on April 08, 2020 (85 FR 19792). There intended for incorporating acquired data were no comments. 14 CFR part 437 into the experimental permit, which Issued in Washington, DC. established requirements for the FAA’s then becomes binding on the launch or Stephen Earle, authority to issue experimental permits reentry operator. The applicant is Acting Deputy Division Manager, Office of for reusable suborbital rockets to required to submit information that Commercial Space Transportation. authorize launches for the purpose of enables FAA to determine, before [FR Doc. 2020–26652 Filed 12–2–20; 8:45 am] research and development, crew issuing a permit, if issuance of the BILLING CODE 4910–13–P

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Part II

Social Security Administration

20 CFR Parts 404 and 416 Revised Medical Criteria for Evaluating Musculoskeletal Disorders; Final Rule

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SOCIAL SECURITY ADMINISTRATION medical criteria and clarify how we fewer applicants would therefore evaluate musculoskeletal disorders. qualify for disability at the listing level. 20 CFR Parts 404 and 416 Consequently, they asserted, further When will we begin to use these final assessment at later steps in the [Docket No. SSA–2006–0112] rules? evaluation process would be needed, RIN 0960–AG38 As we noted in the dates section of requiring vocational information and this preamble, these final rules will be consideration of the person’s age, Revised Medical Criteria for Evaluating effective on April 2, 2021. We delayed education, and work experience to make Musculoskeletal Disorders the effective date of the rules to give us a determination. Ultimately, the entire time to update our systems, and to disability process would be prolonged. AGENCY: Social Security Administration. provide training and guidance to all of Commenters also asserted that in some ACTION: Final rules. our adjudicators before we implement cases, even if we changed certain listing the final rules. The current rules will criteria, the functional limitations SUMMARY: We are revising the criteria in continue to apply until the effective associated with some musculoskeletal the Listing of Impairments (listings) that date of these final rules. When the final conditions would not necessarily we use to evaluate claims involving rules become effective, we will apply change, but would rather result in musculoskeletal disorders in adults and them to new applications filed on or further evaluations being needed at children under titles II and XVI of the after the effective date of the rules, and steps 4 and 5 (and perhaps disability Social Security Act (Act). The revisions to claims that are pending on or after the awards being made at those levels). This reflect our adjudicative experience, effective date.2 too could result in longer decision advances in medical knowledge, and times. comments we received from the public Public Comments on the NPRM Response: We decline to withdraw in response to a notice of proposed In the NPRM, we provided the public this final rule. The listings describe rulemaking (NPRM). with a 60-day comment period, which impairments that preclude the ability to DATES: These rules are effective April 2, ended on July 6, 2018. We received 39 perform ‘‘any gainful activity’’ (or, in 2021. comments.3 The comments came from the case of a child applying for FOR FURTHER INFORMATION CONTACT: advocacy groups, legal services Supplemental Security Income (SSI) Cheryl A. Williams, Office of Disability organizations, a State agency that makes payments based on disability, to Policy, Social Security Administration, disability determinations for us, medical identify impairments that result in 6401 Security Boulevard, Baltimore, organizations, and individual marked and severe functional Maryland 21235–6401, (410) 965–1020. commenters. A number of the letters limitations).4 Even if in some cases For information on eligibility or filing provided identical (or very similar) (although not all) the revised rule for benefits, call our national toll-free comments and recommendations. results in more decisions being made at number, 1–800–772–1213, or TTY 1– We carefully considered all of the steps 4 and 5, we still have a statutory 800–325–0778, or visit our internet site, comments that were relevant to this obligation to ensure the listings are up Social Security Online, at http:// rulemaking. We have tried to summarize to date and accurately reflect current www.socialsecurity.gov. the commenters’ views accurately and medical criteria. Contrary to the respond to all of the significant issues commenters’ assertion, changing the SUPPLEMENTARY INFORMATION: raised by the commenters that were listing does affect the associated Background within the scope of these rules. We have functional criteria as well. The updated functional criteria are uniform and We are making final the rules for not summarized or responded to comments that were outside the scope specific severity criteria, which evaluating musculoskeletal disorders represent the level of dysfunction of the that we proposed in the NPRM of the proposed rules. Some commenters noted provisions with upper and lower extremities that would published in the Federal Register on cause a person to be unable to do any May 7, 2018.1 The preamble to the which they agreed and did not make suggestions for changes in those work or would cause a child to be NPRM provides the background for unable to perform age-appropriate these revisions. You can view the provisions. We did not summarize or respond to those comments. activities. preamble to the NPRM by visiting Comment: One commenter believes http://www.regulations.gov and Comment: Several commenters asked us to withdraw this rule because they that the functional criteria we use for searching for document ‘‘SSA–2006– adults (Part A) and for children (Part B) 0112.’’ We are making a number of opined the changes we proposed were more stringent in nature. They asserted should not be the same, because changes in these final rules in response children with disabilities are defined by to public comments to the NPRM, 2 This means that we will use these final rules on their ability to participate in activities at which we explain below. We are also and after their effective date in any case in which a level comparable to children of the making a conforming change to the we make a determination or decision. We expect same age without disabilities. endocrine disorders body system to that Federal courts will review our final decisions Response: We disagree. The comport with the change we proposed using the rules that were in effect at the time we functional criteria for musculoskeletal issued the decisions. If a court reverses our final to section 416.926a(m) to be consistent decision and remands a case for further disorders in children age 3 and older are with these final rules. administrative proceedings after the effective date appropriately comparable to the of these final rules, we will apply these final rules Why are we revising the listings for functional criteria for musculoskeletal to the entire period at issue in the decision we make disorders in adults. When we evaluate evaluating musculoskeletal disorders? after the court’s remand. 3 The docket summary on Regulations.gov a child’s functioning for purposes of the We developed these final rules as part indicates 46 comments were received; however, this disability program, including under of our ongoing review of the listings. We number includes seven comments we received for these listings, we consider whether the are revising the listings for evaluating a prior final rule in which we sought comments child does the things that other children musculoskeletal disorders to update the with a comment period that closed in January 2002 (66 FR 58009, November 19, 2001). Thus, we their age typically do, or whether they actually only received a total of 39 public 1 83 FR 20646 (2018). comments in response to these rules. 4 20 CFR 404.1525(a) and 416.925(a).

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have limitations and restrictions explanation of what we consider did not specify the ‘‘cluster of tests’’ that because of their medically determinable reduction in muscle strength present should be used instead. impairment(s). We also look at how well when the evidence demonstrates that Comment: One commenter asked that children do the activities and how much the person’s muscle strength is less than we clarify which sources we consider to help they need from family, teachers, or active range of motion against gravity be acceptable medical sources, and that others. Information about what children with maximum resistance. Since Table we consider physical therapists as can and cannot do, and how they 1—Grading System of Muscle Function acceptable medical sources. function on a day-to-day basis at home, in 1.00C2c (Physical examination Response: We need objective medical school, and in the community, allows us report(s)) and 101.00C2c (Physical evidence from an ‘‘acceptable medical to compare their activities to the examination report(s)) already includes source’’ to establish the existence of a activities of children the same age who multiple examples of alternative scales, medically determinable impairment(s). do not have impairments.5 In 101.00E1 including those suggested, and we We define in 20 CFR 404.1502(a) and (How do we use the functional criteria added the clarification that we will 416.902(a) which sources we consider to to evaluate your musculoskeletal accept equivalent, medically acceptable be ‘‘acceptable medical sources.’’ To the disorder under these listings?), we scales, we did not add the additional extent that information is already explain that under these rules we suggested alternative percentage scale provided at length in our existing compare the musculoskeletal used by Kendall and McCreary. If a regulations, we do not repeat it here. functioning of a child age 3 and older person’s musculoskeletal disorder However, in response to the to the functioning of children the same causes a reduction in muscle strength, commenter’s specific concern, we note age who do not have impairments, and we do not have a report that physical therapists are not included whereas we explain in 1.00E2 (Work documenting the strength of the in the list of acceptable medical sources. environment) that we evaluate muscle(s) in question because the As we explained when we updated our musculoskeletal functioning for adults person cannot participate in muscle medical evidence rules in 2017,9 our with respect to the work environment. strength testing, we will consider other acceptable medical sources have Furthermore, we provide unique criteria objective clinical findings appropriate to licensure requirements that are more for evaluating musculoskeletal disorders the specific musculoskeletal disorder. nationally consistent, which is essential in infants and toddlers in listing 101.24 As well, we note that adults and for us to administer a national disability (Musculoskeletal disorders of infants children with cognitive impairments program. For physical therapists, States and toddlers, from birth to attainment of also may be found disabled on another significantly vary on titles, the required age 3, with developmental motor delay), basis without consideration of their hours of experience for licensure, and which take into account the rapid musculoskeletal impairments. We will the scope of practice, such as clinical development of motor function during cover this information, about and non-clinical practice. Thus, we do the infant and toddler stages. equivalent, medically acceptable scales, not include them in the list of Comment: Many commenters asked including the Kendall and McCreary acceptable medical sources. that, in addition to considering a 0 to 5 scale, during our training on these final When we evaluate the severity of grading scale of muscle function, we rules to fully ensure that adjudicators musculoskeletal disorders throughout consider alternative, equivalent, are aware. the sequential evaluation process, we medically acceptable grading scales. Comment: One commenter suggested consider all relevant evidence we One commenter expressed that a 0 to 5 that we should not require a positive receive from all medical sources, grading scale may not be reliable for straight-leg raising test, but should including physical therapists, regardless children who are age 5 or younger, or instead use a ‘‘cluster of tests’’ and of whether they are an acceptable for older children and adults with allow flexibility in evaluations. medical source. We therefore note that cognitive impairments, because of these Response: We disagree. The straight- while evidence from physical therapists groups’ presumed inability to follow the leg raising test is a longstanding cannot establish a medically test instructions. requirement for current listing 1.04 Response: We agree with these determinable impairment, the evidence (Disorders of the spine), and it provides can still help us establish what, if any, comments, and provide clarification in objective medical evidence in cases 1.00C2c (Physical examination functional limitations arise from the involving lumbar nerve root medically determinable impairment. report(s)) and 101.00C2c (Physical compromise. The straight-leg raising test examination report(s)). We revised the Comment: One commenter asked that is routinely used in medical we use the terms ‘‘arm’’ instead of introductory text for reduction in examinations and is well-accepted by muscle strength to indicate that the ‘‘upper extremity’’ and ‘‘leg’’ instead of the medical community. It does not ‘‘lower extremity.’’ measurement should be based on a require specialty equipment and is muscle strength grading system that is Response: We did not adopt this considered reliable, accurate, and non- comment. An upper extremity includes considered medically acceptable for the invasive.78 Furthermore, the commenter person’s age and impairments. We also not just the arm, but also structures such as the fingers, hand, wrist, elbow, state that we will accept muscle strength chart, the none/trace/poor/fair/good/normal tests using scales other than the 0 to 5 alternate scale. forearm, upper arm, and shoulder; and scale, provided the scales used are 7 Fajolu, O.K., Pencle, F.J.R., Rosas, S., & Chin, a lower extremity includes not just the equivalent, medically acceptable K.R. (2018). A prospective analysis of the supine leg, but also the toes, feet, ankles, lower 6 and sitting straight-leg raise test and its leg, knee, upper leg, and hip. scales. Furthermore, we added an performance in litigation patients. Journal of Spine Surgery, 12(1), 58–63. https://doi.org/10.14444/ Comment: One commenter asked that 5 20 CFR 416.924a and Social Security Ruling 5010. we define the ankle as the talocrural (SSR) 09–1p: Title XVI: Determining Childhood 8 Rabin, A., Gerszten, P.C., Karausky, P., Bunker, joint, instead of the tarsal joint, as the Disability Under the Functional Equivalence Rule— C.H., Potter, D.M., & Welch, W.C. (2007). The talocrural joint is the ankle proper. The ‘‘Whole Child’’ Approach. Available at: https:// sensitivity of the seated straight-leg raise test mwww.ba.ssa.gov/OP_Home/rulings/ssi/02/ compared with the supine straight-leg raise test in SSR2009-01-ssi-02.html. patients presenting with magnetic resonance Rehabilitation, 88(7), 840–43. https://doi.org/ 6 For example, Table 1 (included in the NPRM imaging evidence of lumbar nerve root 10.1016/j.apmr.2007.04.016. and again here) includes, under the muscle strength compression. Archives of Physical Medicine and 9 82 FR 5844 (2017).

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Response: We agree with the severity. In cases involving a Syme these listings. We do not include every comment. In 1.00M (What do we amputation we would then evaluate the possible term indicating compromise of consider when we evaluate non-healing claim under the guidance in 1.00S (How a nerve root. We consider all evidence or complex fractures of the femur, tibia, do we evaluate musculoskeletal regardless of whether the terms we pelvis, or one or more of the talocrural disorders that do not meet one of these include in the rules, or other bones (1.22)?), 1.20C (Amputation due listings?) and 101.00R (How do we comparable terms, appear in the to any cause), 1.20D (Amputation due to evaluate musculoskeletal disorders that evidence. We also note that our medical any cause), 101.00M (What do we do not meet one of these listings?). consultants are acceptable medical consider when we evaluate non-healing Comment: Many commenters asked sources with formal medical training, or complex fractures of the femur, tibia, that we clarify that the terms and they will not be confused by pelvis, or one or more of the talocrural ‘‘compromise’’ and ‘‘impingement’’ are commonly accepted alternative medical bones (101.22)?), 101.20C (Amputation not required for listings 1.15 (Disorders terms. due to any cause), and 101.20D of the skeletal spine resulting in Comment: Many commenters asked (Amputation due to any cause), we compromise of a nerve root(s)) and that we include ‘‘pseudoclaudication’’ referred to the ankle as the ‘‘tarsal 101.15 (Disorders of the skeletal spine as an alternative term for ‘‘neurogenic joint,’’ which is incorrect. We replaced resulting in compromise of a nerve claudication.’’ ‘‘tarsal’’ with ‘‘talocrural’’ in these root(s)), because other terms such as Response: We adopted these sections, and also in listings 1.22 (Non- ‘‘displacement’’ and ‘‘foraminal comments. In 1.00G2 (Compromise of healing or complex fractures of the stenosis’’ also may indicate compromise the cauda equina) and 101.00G2 femur, tibia, pelvis, or one or more of of a nerve root. (Compromise of the cauda equina), we the talocrural bones) and 101.22 (Non- Response: We did not make any added ‘‘pseudoclaudication’’ as an healing or complex fractures of the changes in the final rules based on these alternative term for ‘‘neurogenic femur, tibia, pelvis, or one or more of comments. Listings 1.15 (Disorders of claudication.’’ the talocrural bones). the skeletal spine resulting in Comment: Some commenters objected Comment: One commenter asked that compromise of a nerve root(s)) and to the removal of listing criteria for we clarify whether these rules consider 101.15 (Disorders of the skeletal spine spinal arachnoiditis found in current Syme amputations. resulting in compromise of a nerve 1.04B (Disorders of the spine). Response: We did not make any root(s)) require symptoms of radicular Response: Spinal arachnoiditis is a changes in the final rules based on this distribution of one or more rare spinal disorder involving comment. The criteria in 1.20D manifestations, radicular neurological inflammation of the arachnoid, which is (Amputation due to any cause) and signs, findings on imaging, and physical one of the membranes surrounding the 101.20D (Amputation due to any cause) limitation of musculoskeletal spinal cord. The inflammation can require amputation of one or both lower functioning. We explain in 1.00F1 result in adhesion of the nerve roots, extremities, occurring at or above the (What do we consider when we evaluate which, in turn, affects nerve ankle. A Syme amputation does not 15 16 disorders of the skeletal spine resulting function. The disorder is meet the criteria in 1.20D and 101.20D, in a compromise of a nerve root(s)? characterized by neurological signs and because it is an amputation done (1.15)) and 101.00F1 (What do we symptoms, including, but not limited to, through the ankle in which the tibia and consider when we evaluate disorders of pain, numbness or weakness in the legs, fibular are left intact, the foot is the skeletal spine resulting in a muscle cramps or spasms, and motor removed, and the heel pad is saved. 17 18 compromise of a nerve root(s)? (101.15)) paralysis. We believe spinal This is done so that the body’s weight that compromise of a nerve root may be arachnoiditis is more appropriately can be borne over the distal end of the evaluated under the neurological body 10 referred to as ‘‘nerve root stump. A Syme amputation offers system due to its origins in the nervous early post-operative weight-bearing impingement,’’ and both are terms used when a physical object, such as a tumor system. Listings 11.08 (Spinal cord without the need for gait training, better disorders) and 111.08 (Spinal cord gait pattern with less energy or herniated disc, is seen pushing on the nerve root in an imaging study or during disorders) offer different methods of expenditure, and less pressure on the evaluating functional limitations 11 12 surgery. Moreover, while the proposed distal stump. As a result, a person resulting from spinal cord disorders, with a Syme amputation often requires terms of ‘‘displacement’’ and ‘‘foraminal stenosis’’ may indicate compromise of a such as spinal arachnoiditis, including only a cane and walking boot to extreme limitation in motor function or ambulate post-surgery. Once the stump nerve root, they are not exclusively alternative terms for compromise of a marked limitation in physical and has sufficiently healed, a prosthesis is mental functioning, which may be fitted to allow near-normal functioning. nerve root but instead have separate meanings.13 14 ‘‘Disc displacement’’ is an appropriate for evaluating the functional For this reason, the impairment, in and limitations caused by spinal of itself, does not rise to listing-level alternative term for ‘‘disc herniation’’ and ‘‘foraminal stenosis’’ refers to arachnoiditis depending on the medical evidence we receive. We added a 10 Diveley, R.L., & Kiene, R.H. (2008). An narrowing of the openings between the improved prosthesis for a syme amputation: Rex L. bones of the spine. Both of these statement to 1.00F (What do we consider Diveley MD (1893–1980), Richard H. Kiene MD. conditions may occur in people without when we evaluate disorders of the Clinical orthopaedics and related research, 466(1), skeletal spine resulting in compromise 127–129. https://doi.org/10.1007/s11999-007-0027- nerve root compromise as described by 0. 13 15 Wright, M.H. + Denney, L.C. (2003). A 11 Syme Amputation for Limb Salvage: Early Raja, A., Hoang, S, Viswanath, O., Herman, J.A., Experience with 26 Cases, Frykberg, R., Abraham, & Mesfin, F.B. (2020). Spinal stenosis. In StatPearls. comprehensive review of spinal arachnoiditis. S., Tierney, E., and Hall, J. The Journal of Foot and Retrieved from https://www.ncbi.nlm.nih.gov/ Orthopaedic Nursing, 22(3), 215–9. doi: 10.1097/ Ankle Surgery, Volume 45, Issue 2, March–April books/NBK441989/. 00006416–200305000–00010. 2007, pp 93–100. Doi: 10.1053/j.jfras.2006.11.005. 14 Leonardi, M. & Boos, N. (2008). Disc herniation 16 https://rarediseases.info.nih.gov/diseases/ 12 Syme Amputation and Prosthetic Fitting and radiculopathy. In N. Boos & M. Aebi, (Eds.), 5839/arachnoiditis. Challenges, Philbin, T., DeLuccia, D., Nitsch, R., Spinal Disorders Fundamentals of Diagnosis and 17 https://my.clevelandclinic.org/health/diseases/ Maurus, P. Techniques in Foot & Ankle Surgery, Treatment (pp. 481–512). Berlin: Springer. 12062-arachnoiditis. Sept. 2007—Volume 6—Issue 3—p147–155. Doi: Available from https://link.springer.com/content/ 18 https://www.ncbi.nlm.nih.gov/pmc/articles/ 10.1097/BTF.0b013e31814255b9. pdf/10.1007%2F978-3-540-69091-7_18.pdf. PMC3237290/.

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of a nerve root(s) (1.15)?) and 101.00F carrying), and we use these terms, as criteria in these rules do not require an (What do we consider when we evaluate well as ‘‘unable’’ and ‘‘walk,’’ in these inability to walk, so the relative disorders of the skeletal spine resulting rules as they are defined in common assistance in walking offered by in compromise of a nerve root(s) English usage. The proposed rules did different assistive devices is not the (101.15)?) indicating that spinal not include the terms ‘‘prescribed point of consideration. Rather, the arachnoiditis should be evaluated under treatment’’ or ‘‘seriously limit.’’ functional criteria in these rules 11.00 and 111.00. Additionally, we will Comment: One commenter expressed represent functional limitations related highlight this clarification during our concern with the guidance in 101.00C5b to the upper extremities. These training on these final rules. (Response to treatment) for child claims functional limitations either directly Comment: Several commenters asked (which is also in 1.00C5b (Response to represent upper extremity limitations, that we use plain language terminology treatment) for adult claims) that as with the criteria for an inability to instead of medical terminology in these explains we may defer our perform fine and gross movements, or rules, and gave an example of using determination or decision under these indirectly represent upper extremity ‘‘pins and needles’’ instead of listings for up to 3 months from the date limitations, as with the criteria for the ‘‘paresthesia.’’ treatment began. The commenters use of a hand-held assistive device(s), Response: We did not make any recommended that the length of deferral which necessarily limits the use of the changes in the final rules based on these time be considered in consultation with upper extremity holding the assistive comments. While we drafted these rules a physician or other medical device. Further, as we explain in using plain language to the extent professional. 1.00C6d (Hand-held assistive devices) possible, the rules specify the medical Response: We agree with and are and 101.00C6d (Hand-held assistive criteria we use to evaluate adopting these comments. We revised devices), ‘‘[w]hen you use a one-handed, musculoskeletal disorders. The 1.00C5b (Response to treatment) and hand-held assistive device (such as a appropriate medical term is paresthesia. 101.00C5b (Response to treatment) by cane) with one upper extremity to walk We note that the term ‘‘pins and removing the last sentence, which stated and you cannot use your other upper needles’’ is at times used in medical that we may defer our determination or extremity for fine or gross movements 19 20 21 literature but as a specific medical decision under these listings for up to (see 1.00E4), the need for the assistive criteria we believe it is overly 3 months. The remaining guidance device limits the use of both upper colloquial. As such, while we continues to explain that we need extremities.’’ acknowledge that the term ‘‘pins and information about treatment over a needles’’ may appear in medical sufficient period of time to determine its To be responsive to the commenters, records, we choose to not include the effect on a person’s musculoskeletal however, we added wheeled and seated colloquialism in the regulatory text. We functioning. We use medical mobility devices to the functional will cover this information during our consultants and our adjudicative criteria based on how the wheeled and training on these final rules to fully experience to determine the appropriate seated mobility device affects the remind adjudicators that colloquialisms amount of time. We will not defer our person’s use of the upper extremities. such as ‘‘pins and needles’’ may be seen determination or decision when the As suggested by the commenters, these in medical records. evidence establishes that the claimant is modifications to the functional criteria Comment: One commenter stated that disabled, either under these listings or are reflected everywhere hand-held many of the terms used in these rules on another basis. assistive devices were proposed in the are ‘‘not defined well enough’’ for Comment: We sought comment on NPRM. We also added explanation to adjudicators and others to be sure what whether the proposed functional criteria the introductory text about how we will they mean and gave the examples of in 1.00C6 (Assistive devices) and consider wheeled and seated mobility ‘‘unable,’’ ‘‘walk,’’ ‘‘fine and gross motor 101.00C6 (Assistive devices) were devices in 1.00C6e (Wheeled and seated movements,’’ ‘‘picking,’’ ‘‘pinching,’’ appropriate and sufficient. In response, mobility devices), 1.00E3 (Functional ‘‘manipulating and fingering,’’ one commenter asked that we add a criteria), 1.00K4 (Amputation of one ‘‘handling,’’ ‘‘gripping and grasping,’’ fourth category of assistive devices, upper extremity and one lower ‘‘holding,’’ ‘‘turning,’’ ‘‘lifting and specifically wheeled mobility devices, extremity (1.20C)), 1.00K5 (Amputation carrying,’’ ‘‘seriously limit,’’ and including manual and power of one lower extremity or both lower ‘‘prescribed treatment.’’ wheelchairs, to the list of assistive extremities with complications of the Response: We disagree with these devices in 1.00C6 (Assistive devices) residual limb(s) (1.20D)), 101.00C6e comments. These rules use ‘‘fine and and 101.00C6 (Assistive devices). Most (Wheeled and seated mobility devices), gross movements’’ (not ‘‘fine and gross of the other commenters made similar 101.00E3 (Functional criteria), 101.00K4 motor movements’’), which is a term comments, recommending that we add (Amputation of one upper extremity and defined in 1.00E4 (Fine and gross ‘‘wheelchairs and scooters’’ wherever one lower extremity (101.20C)), and movements) and 101.00E4 (Fine and we include ‘‘a documented medical 101.00K5 (Amputation of one lower gross movements). The majority of the need for a walker, bilateral canes, or extremity or both lower extremities with other terms identified by this bilateral crutches’’ in these rules, complications of the residual limbs(s) commenter are examples of fine because people with a documented need (101.20D)). We further clarified that any movements (picking, pinching, for a wheelchair or scooter require ‘‘at assistive device, regardless of whether it manipulating, and fingering) and gross least as much assistance in walking as is wheeled, hand-held, or worn, must be movements (handling, gripping, those with a need for other assistive supported by medical documentation of grasping, holding, turning, lifting, and devices.’’ These commenters also asked the medical need for the assistive device that we ‘‘examine how a patient will use for a continuous period of at least 12 19 Harrison’s Principles of Internal Medicine, an assistive device, not merely why it is months in 1.00C6a (General) and Chapter 22 (https://accessmedicine.mhmedical.com needed,’’ and that we require 101.00C6a (General). With respect to the /content.aspx?sectionid=192011473& requests that we require documentation bookid=2129#196882079). documentation of distance, cadence, 20 https://www.ncbi.nlm.nih.gov/medgen/14619. and level of assistance. of distance, cadence, and level of 21 Bates’ Guide to Physical Examination and Response: We are partially adopting assistance, we decline to do so. Most History Taking Twelfth Edition. the suggestions offered. The functional records already supply the information

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needed to assess the new functional pain, under these listings. The disability medically determinable impairment, we criteria whereas information about the program rules require the presence of a consider its effects on functioning requested items, especially distance, is medically determinable impairment that throughout the sequential evaluation not typically provided and would could reasonably be expected to process. These final rules do not necessitate additional development and produce the symptoms (including pain), eliminate or prevent our consideration burden to the claimant to obtain that a description of the person’s of obesity. We added section 1.00Q information. medications (see 1.00C5b (Response to (How do we consider the effects of Comment: One commenter asked that treatment) and 101.00C5b (Response to obesity when we evaluate your we clarify that hand-held assistive treatment)), and the effects of those musculoskeletal disorder?), which devices are devices you hold onto. medications on the allegations of pain. explains that the combined effects of Response: We adopted this comment. Our regulations in 20 CFR 404.1529 and obesity with musculoskeletal In 1.00C6d (Hand-held assistive devices) 416.929 and Social Security Ruling impairments can be greater than the and 101.C6d (Hand-held assistive (SSR) 16–3p: Titles II and XVI: effects of each impairment considered devices), we clarified that hand-held Evaluation of Symptoms in Disability separately. We also provide guidance in assistive devices are devices you hold Claims,22 explain how we evaluate SSR 19–2p: Titles II and XVI: Evaluating onto, not carry, with your hands. symptoms, including pain, in disability Cases Involving Obesity, which explains Comment: One commenter expressed adjudication. how we consider obesity in disability that the statement in 1.00C6d (Hand- Our rules about the failure to follow claims.26 The removal of the prior held assistive devices) about the need prescribed treatment are found in 20 section 1.00Q (Effects of obesity), which for evidence from a medical source CFR 404.1530 and 416.930, with explained that the combined effects of describing how the person walks when additional guidance found in SSR 18– obesity with musculoskeletal using a hand-held assistive device is 3p: Titles II and XVI: Failure to Follow impairments can be greater than the vague and open to interpretation. Prescribed Treatment.23 If a person is effects of each impairment considered Response: We did not make changes prescribed opioid medication, and separately, does not change our policy in response to this comment. Depending chooses to not take the medication, we on evaluating obesity. on the specific musculoskeletal consider these rules for any medical Comment: One commenter asked how impairment causing the functional condition(s), not just musculoskeletal these rules account for fibromyalgia, limitation, there is variability in the disorders. SSR 18–3p specifically considering there are no diagnostic tests type of device being used, how a person references the ‘‘risk of addiction to for this condition; no clear physical, uses an assistive device, and how this opioid medication’’ as an example of a anatomical, or psychological device affects mobility. Requiring ‘‘good cause’’ reason for not following abnormalities resulting from specific details from the medical source prescribed treatment with opioid fibromyalgia; and that it is difficult to may not adequately address the facts in medication.24 We further note that the fully assess pain as part of a medical an individual case. For these reasons, musculoskeletal disorders listings are evaluation, which is particularly we are intentionally leaving the type of used at step three of our sequential challenging given that pain is the description provided to the discretion of evaluation process, and are used to primary presenting symptom of the medical source rather than establish medical criteria to help fibromyalgia. prescribing a specific type of expedite allowances. Therefore, we do Response: These final rules do not description. This allows the medical not deny adult claims at this step for change how we consider fibromyalgia. source necessary flexibility in providing any reason and only deny childhood Fibromyalgia is a complex medical a description. claims if the child’s medically condition characterized primarily by Comment: Many commenters determinable impairment(s) does not widespread pain in the joints, muscles, suggested we explain in 1.00D (How do meet, medically equal, or functionally tendons, or nearby soft tissues that has we consider symptoms, including pain, equal the listings.25 persisted for at least 3 months. SSR 12– under these listings?) and 101.00D (How Comment: A number of commenters 2p: Titles II and XVI: Evaluation of do we consider symptoms, including asked that we continue to consider Fibromyalgia explains how we consider pain, under these listings?) of the obesity and its effects on the fibromyalgia in disability claims, introductory text of the listings that a musculoskeletal system. including how we evaluate it at step 3 lack of opioid prescription or a person’s Response: We agree with the of our sequential evaluation process.27 attempt to reduce or avoid opioid use comments. We have not changed our We consider all medically determinable does not indicate the severity of a policy on evaluating obesity. We impairments when we evaluate claims musculoskeletal disorder. consider all medically determinable for disability purposes. Once Response: In 1.00C5b (Response to impairments when we evaluate claims fibromyalgia is established as a treatment) and 101.00C5b (Response to for disability purposes. If obesity is a medically determinable impairment treatment), we clarified that a person’s based on appropriate medical evidence, musculoskeletal disorder may meet or 22 81 FR 14166 (03/16/16), 81 FR 15776 (03/24/ we consider its effects on functioning medically equal one of these listings 16) (Correction), 82 FR 49462 (10/25/17) throughout the sequential evaluation regardless of whether the person was (Republished). 23 SSR 18–3p: Titles II and XVI: Failure to Follow process. prescribed opioid medication, or Prescribed Treatment. Available at: https:// Comment: Several commenters whether the person was prescribed www.ssa.gov/OP_Home/rulings/di/02/SSR2018-03- disagreed with our introduction into the opioid medication and did not follow di-02.html. regulations of an explicit requirement this prescribed treatment. In addition to 24 SSR 18–3p: Titles II and XVI: Failure to Follow Prescribed Treatment. Available at: https:// that all applicable listing criteria must how we consider opioids in the context www.ssa.gov/OP_Home/rulings/di/02/SSR2018-03- of treatment, in 1.00D (How do we di-02.html. 26 SSR 19–2p: Titles II and XVI: Evaluating Cases consider symptoms, including pain, 25 We use a five-step sequential evaluation Involving Obesity. Available at: https:// under these listings?) and 101.00D (How process to determine whether an adult is disabled www.ssa.gov/OP_Home/rulings/di/01/SSR2019-02- under titles II and XVI. 20 CFR 404.1520 and di-01.html. do we consider symptoms, including 416.920. We use a different process to decide 27 SSR 12–2p: Titles II and XVI: Evaluation of pain, under these listings?), we explain whether a child is disabled under title XVI of the Fibromyalgia. Available at: https://www.ssa.gov/ how we consider symptoms, including Act. 20 CFR 416.924. OP_Home/rulings/di/01/SSR2012-02-di-01.html.

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be present simultaneously, and asked supporting our interpretation.31 The with a requirement to document all that we change our policy to reflect the Court of Appeals also found that our relevant criteria within a four-month holding with respect to prior 1.04A in interpretation was ‘‘plainly inconsistent duration can reasonably be Radford v. Colvin, 734 F.3d 288 (4th Cir. with the text and structure of the accommodated by most patients’ routine 2013).28 regulation because the regulation said visitation frequencies. As another Response: We did not adopt these ‘‘nothing about a claimant’s need to example, a two-year study using data comments. The holding of the Court of show that the symptoms present from the Medical Panel Expenditure Appeals in Radford differs from our simultaneously in the claimant or in Survey regarding utilization of interpretation of the listing requirement, close proximity to one another’’ 32 Thus, healthcare showed that for people with and is inconsistent with our the Court of Appeals decision itself does spine disease, arthritis/joint disease, understanding of the degree of severity not preclude us from developing musculoskeletal injuries, and other requirements at step 3 of the sequential regulations to explicit state this musculoskeletal disease, the average evaluation process. requirement and establish national total visits to physician and non- In Radford,29 the United States Court consistency. Furthermore, our physician ambulatory services was of Appeals for the Fourth Circuit held acquiescence rules also allow us to greater in frequency than once every that Listing 1.04A required a claimant to subsequently clarify, modify, or revoke three months.35 Other studies also show only ‘‘that each of the symptoms regulations that are the subject of a suggest that for chronic ailments, are present, and that the claimant has circuit holding that we determine including certain musculoskeletal suffered or can be expected to suffer conflicts with our interpretation of the disorders, re-visitation within 3–4 from nerve root compression regulations.33 In accordance with these months is normative.36 rules, we will rescind AR 15–1(4) when continuously for at least 12 months.’’ Moreover, it is generally perceived these final rules become effective. Contrary to our policy that the requisite that providers are trained to schedule level of severity requires the Comment: These commenters also their patients for visits every 3 to 4 simultaneous presence of all the stated that the 4-month duration period, months routinely, regardless of disease medical criteria in paragraph A of during which all of the relevant criteria severity.37 This is further backed by former 1.04, the Court of Appeals held must be present, if not ‘‘present clinical practice guidelines. For that a claimant need not show that each simultaneously,’’ in the medical example, the Veteran’s Health criterion was present simultaneously or evidence, should not be a requirement Administration (VHA) and Department in particularly close proximity. Because for these listings, and that we should of Defense’s (DoD) Clinical Practice this holding was contrary to our policy, allow medical sources to opine whether Guideline for the Management of we issued AR 15–1(4), which the criteria occurred within a 4-month Medically Unexplained Symptoms: implemented the Court of Appeals’ period regardless of whether these Chronic Pain and Fatigue (2001) 30 holding within the Fourth Circuit. findings are actually recorded in the recommends ‘‘initially, a revisit at two These final rules clarify our medical record. One commenter to three weeks would be appropriate. As interpretation of the regulations. For a suggested that we change the 4-month soon as the patient is doing well, then medically determinable impairment to period to a 6-month period. revisits every 3 to 4 months would be meet a listing, the criteria must be Response: We did not adopt these recommended.’’ 38 Similarly, the VHA/ present simultaneously to establish comments. None of these commenters DoD 2017 guide Clinical Practice listing-level severity. Once that is submitted any supporting research or Guideline for Diagnosis and Treatment established, evidence must show that data to justify such a change to these of Low Back Pain recommends this level of severity has lasted, or is rules. The intention of a 4-month time reassessment monthly after initiation of expected to last, for at least 12 months. period was to best ensure all relevant therapy if low back pain continues and We note that in reaching its criteria are ‘‘present simultaneously,’’ conclusion in Radford, the Court of while also providing leeway in cases 37(11), E668–E677. https://doi.org/10.1097/ Appeals declined to give our where multiple visitations or BRS.0b013e318241e5de. interpretation deference because the examinations are necessary, such as 35 BMUS: The Burden of Musculoskeletal agency had not previously published when a physical examination might not Diseases in the United States. In: BMUS: The have been performed or symptoms Burden of Musculoskeletal Diseases in the United any regulation or other agency guidance States [internet]. [cited 15 July 2020]. https:// might not have been documented at a www.boneandjointburden.org/fourth-edition/viiic2/ 28 Acquiescence Ruling (AR) 15–1(4): Radford v. given appointment. In the absence of utilization-condition-group. Colvin, 734 F.3d 288 (4th Cir. 2013): Standard for research or data to support these 36 J Gen Intern Med. 1999 Apr; 14(4): 230–235. Meeting Section 1.04A of the Listing of comments, we are not changing the 4- doi: 10.1046/j.1525–1497.1999.00322.x Lisa M. Impairments—Disorders of the Spine with Evidence Schwartz, MD, MS, Steven Woloshin, MD, MS, John of Nerve Root Compression—Titles II and XVI of month period, which is consistent with H. Wasson, MD, Roger A. Renfrew, MD, and H. the Social Security Act. Available at: https:// the standard of care and common Gilbert Welch, MD, MPH, Dartmouth Primary Care www.ssa.gov/OP_Home/rulings/ar/04/AR2015-01- industry practice. For example, a 2012 Cooperative Research Network1. ar-04.html. The Radford Court held that ‘‘[a] study of over 100,000 patients with 37 Bavafa, H., Savin, S., & Terwiesch, C. (2019). claimant need not show that each symptom was chronic lower back pain found that the Redesigning Primary Care Delivery: Customized present at precisely the same time—i.e., Office Revisit Intervals and E-Visits. https:// simultaneously—in order to establish the chronic median patient visited a physician dx.doi.org/10.2139/ssrn.2363685 Paper referenced nature of his condition. Nor need a claimant show office 10 times in the study year, with by Bavafa: Schectman, G., G. Barnas, P. Laud, L. that the symptoms were present in the claimant in an interquartile range between 6 and 17 Cantwell, M. Horton, E.J. Zarling. 2005. Prolonging particularly close proximity.’’ outpatient visits.34 This is consistent the return visit interval in primary care. The 29 Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013). American Journal of Medicine, 118(4) 393–399. 30 Acquiescence Ruling (AR) 15–1(4): Radford v. 38 Veterans Health Administration & Department 31 Colvin, 734 F.3d 288 (4th Cir. 2013): Standard for Radford v. Colvin, 734 F.3d at 294. of Defense. (2001). VHA/DoD Clinical Practice Meeting Section 1.04A of the Listing of 32 Id. Guideline for the Management of Medically Impairments—Disorders of the Spine with Evidence 33 20 CFR 404.985(e)(4) and 416.1485(e)(4). Unexplained Symptoms: Chronic Pain and Fatigue. of Nerve Root Compression—Titles II and XVI of 34 Gore, M., Sadosky, A., Stacey, B.R., Tai, K.S., https://www.healthquality.va.gov/guidelines/MR/ the Social Security Act. Available at: https:// & Leslie, D. (2012). The burden of chronic low back mus/mus_fulltext.pdf (2001 VA Practice Guideline www.ssa.gov/OP_Home/rulings/ar/04/AR2015-01- pain: Clinical comorbidities, treatment patterns, for Medically Unexplained Chronic Pain and ar-04.html. and health care costs in usual care settings. Spine, Fatigue).

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no serious specific underlying cause for biopsy. As discussed elsewhere in this Comment: One commenter suggested low back pain is found.39 preamble, spinal arachnoiditis is more that we incorporate impairment of the We believe our review of available appropriately evaluated under the muscles controlling joint movements medical literature and clinical neurological body system (for example, into 1.00I (What do we consider when guidelines reflects the appropriateness under listings 11.08 (Spinal cord we evaluate abnormality of a major of selecting a 4-month time period. We disorders) and 111.08 (Spinal cord joint(s) in any extremity (1.18)?) and recognize that one routine visit alone disorders) and will be assessed using the that we should consider how these does not necessarily ensure that all requirements in the neurological impairments impact function. necessary criterion for a medical listing listings. Finally, current 1.04A does not Response: These suggestions are are appropriately documented; however have an explicit medical imaging already included in the introductory the 4-month time period provides requirement. In full, 1.04A reads: text and listing criteria for 1.18 sufficient buffer to ensure the criteria ‘‘[e]vidence of nerve root compression (Abnormality of a major join(s) in any are present within a close proximity of characterized by neuro-anatomic extremity). In 1.00I1 (What do we time. distribution of pain, limitation of consider when we evaluate abnormality We cannot accept a medical opinion motion of the spine, motor loss (atrophy of a major joint(s) in any extremity that opines that otherwise with associated muscle weakness or (1.18)?), we indicate that undocumented medical findings would muscle weakness) accompanied by ‘‘[a]bnormalities of the joints include have occurred during a 4-month period sensory or reflex loss and, if there is ligamentous laxity or rupture, soft tissue in the absence of any other supporting involvement of the lower back, positive contracture, or tendon rupture and can evidence to bolster that view. We note straight-leg raising test (sitting and cause muscle weakness of the affected that when prescribing how we should supine)’’. Despite not having an explicit joint(s).’’ We explain functional consider medical opinions, our existing medical imaging requirement, under 40 abnormality in 1.00I1b (What do we regulations make clear that the most current adjudication policy we would consider when we evaluate abnormality important factors are supportability and always consider the ‘‘evidence of nerve of a major joint(s) in any extremity consistency. The medical opinions must root compression’’ required in 1.04A to (1.18)?). be supportive of and consistent with necessarily include medical imaging. Comment: Several commenters asked other evidence in the case file for us to Because of this, while 1.15 is more that we insert ‘‘at or’’ before ‘‘above the find them persuasive. explicit than 1.04A in its requirements wrists’’ because amputation at the wrists Comment: Several commenters pertaining to medical imaging, it does expressed concern about the criterion causes essentially identical functional not impose any new medical imaging limitations as amputation just above the for imaging in 1.15C (Disorders of the requirements nor does it impose skeletal spine resulting in compromise wrists. additional costs on applicants. Response: We agree with the of a nerve root(s)), 1.16C (Lumbar spinal Comment: One commenter asked that comments. In 1.00K2 (Amputation of stenosis resulting in compromise of the we replace the medical term ‘‘cauda both upper extremities), 1.20A cauda equina), 101.15C (Disorders of equina involvement’’ with ‘‘nerve root (Amputation due to any cause), the skeletal spine resulting in impingement,’’ since ‘‘nerve root 101.00K2 (Amputation of both upper compromise of a nerve root(s)), and impingement’’ is more commonly used 101.16C (Lumbar spinal stenosis in the medical community. extremities), and 101.20A (Amputation resulting in compromise of the cauda Response: The term ‘‘nerve root due to any cause), we added ‘‘at or’’ equina). These comments noted that impingement’’ is not interchangeable before ‘‘above the wrists.’’ there may be people eligible for with ‘‘cauda equina involvement,’’ so Comment: Several commenters disability under current rules who may we did not make changes in response to suggested we combine the proposed not be able to afford medical imaging or this comment. As we explain in 1.00F criteria in 1.15A and B (Disorders of the feel that medical imaging is necessary to (What do we consider when we evaluate skeletal spine resulting in compromise treat their condition. These commenters disorders of the skeletal spine resulting of a nerve root(s)) and 101.15A and B asked that we remove this criterion in compromise of a nerve root(s) (1.15)?) (Disorders of the skeletal spine resulting because many claimants cannot afford and 101.00F (What do we consider when in compromise of a nerve root(s)) and imaging. we evaluate disorders of the skeletal ‘‘allow them to be satisfied when at least Response: We do not believe that final spine resulting in compromise of a one of the following neuroanatomically- rule introduces new medical imaging nerve root(s) (101.15)?), ‘‘compromise of distributed (radicular) symptoms is requirements that were not already a nerve root,’’ which is an alternative present: . . . pain; limitation of motion present under existing rules. Current term to ‘‘nerve root impingement,’’ is of the spine; muscle weakness or 1.04 (Disorders of the spine) establishes used when a physical object is pushing fatigue; signs of nerve root irritation, three potential means for meeting the on the nerve root and results in related tension, or compression; and medical listing. Current 1.04C symptoms that follow the path of the paresthesias.’’ (Disorders of the spine) explicitly affected nerve root. Compromise of the Response: We did not adopt these requires appropriate medically cauda equina, as we explain in 1.00G comments. The commenters acceptable imaging. Current 1.04B (What do we consider when we evaluate mischaracterized muscle weakness and (Disorders of the spine) pertains to lumbar spinal stenosis resulting in signs of nerve root irritation, tension, or spinal arachnoiditis and explicitly compromise of the cauda equina compression as ‘‘symptoms’’ of requires medical imaging, an operative (1.16)?) and 101.00G (What do we disorders of the skeletal spine resulting note, or pathology report of tissue consider when we evaluate lumbar in compromise of a nerve root(s). These spinal stenosis resulting in compromise are, in fact, medical signs. The 39 Veterans Health Administration & Department of the cauda equina (101.16)?), involves commenters’ suggestion would conflate of Defense. (2017). VA/DoD Clinical Practice the bundle of nerves descending from the symptoms and signs of skeletal Guideline for Diagnosis and Treatment of Low Back the lower part of the spinal cord and spine disorders. The separation of Pain. https://www.healthquality.va.gov/guidelines/ Pain/lbp/VADoDLBPCPG092917.pdf (Module B in typically results in nonradicular pain, symptoms and signs into two distinct document). because it is not associated with a criteria is appropriate given our 40 20 CFR 404.1520b and 404.1520c. specific nerve root. requirements establishing a medically

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determinable impairment.41 SSA the inability to perform fine and gross and clavicle. Second, non-pathologic defines a symptom as one’s own movements that would be associated fractures likely result in impairments description of a physical or mental with non-union or complex fracture of that are more appropriately evaluated impairment(s),42 whereas a sign is one an upper extremity. under other listing criteria. For example, or more anatomical, physiological, or Comment: Several commenters a fracture of the skull may accompany psychological abnormalities that can be expressed that the functional criteria in a traumatic brain injury, which is better observed apart from one’s own 1.23 (Non-healing or complex fracture considered under neurological listings statements. Signs must be ‘‘shown by of an upper extremity) and 101.23 (Non- 11.18 (Traumatic brain injury) and accepted medically acceptable clinical healing or complex fracture of an upper 111.18 (Traumatic brain injury), diagnostic techniques.’’ 43 extremity) are ‘‘flawed because they fail whereas fractures of the ribs or clavicle Comment: Several commenters to distinguish whether the dominant or may result in soft tissue injury that is suggested that we remove the functional non-dominant extremity is injured, more appropriately considered under criteria for 1.15 (Disorders of the which is a crucial distinction in terms 1.21 (Soft tissue injury or abnormality skeletal spine resulting in compromise of functional abilities and limitations.’’ under continuing surgical management) of a nerve root(s)) and 101.15 (Disorders Response: We did not make changes and 101.21 (Soft tissue injury or of the skeletal spine resulting in in response to this comment. Although abnormality under continuing surgical compromise of a nerve root(s)). For the commenters are correct about the management). example, they argued that the skeletal lack of distinction between the Comment: Several commenters spine disorder would have serious dominant and non-dominant upper suggested we should not limit the limitations that would be disabling extremity, the listings for criteria for 1.19 (Pathologic fractures without any accompanying need for a musculoskeletal disorders have never due to any cause) and 101.19 hand-held assistive device (which we considered the difference between a (Pathological fractures due to any require for the skeletal spine disorder to dominant and non-dominant extremity, cause) to pathologic fractures, because be considered listing level). because people can still use their non- the same functional limitations can Response: We agree that skeletal spine dominant extremities. We more result from both pathologic and non- disorders can cause significant appropriately consider a distinction pathologic fractures. limitations. However, the signs and when we assess manipulative Response: We did not make changes symptoms that are included in 1.15A limitations in the residual functional as a result of these comments. As we and B (Disorders of the skeletal spine capacity (at a later step in the disability explained in the NPRM, medical resulting in compromise of a nerve determination process), since treatment and recovery expectations for root(s)) and 101.15A and B (Disorders of manipulations require more targeted fractures differ, depending on whether the skeletal spine resulting in motor skills and coordination, and the the condition is due to an underlying compromise of a nerve root(s)) have a role of the dominant extremity is more pathology (such as osteoporosis), or to a wide range of presentation. There can be important in that area. traumatic event. For this reason, we are a similarly wide range of limitations Comment: Some commenters argued adding separate listings for fractures resulting from those signs and that listings 1.22 (Non-healing or caused by an underlying pathology to symptoms. The functional criteria are complex fracture of the femur, tibia, provide specific criteria in 1.19 designed to specify the level of pelvis, or one or more of the talocrural (Pathologic fractures due to any cause) limitation that results in the inability to bones), 1.23 (Non-healing or complex and 101.19 (Pathologic fractures due to perform ‘‘any gainful activity,’’ which is fracture of an upper extremity), 101.22 any cause) related to evaluation and the level of severity required to meet or (Non-healing or complex fracture of the adjudication of pathologic fractures. We equal a listing.44 femur, tibia, pelvis, or one or more of will evaluate complex or non-healing Comment: Several commenters asked the talocrural bones), and 101.23 (Non- traumatic fractures under 1.22 (Non- that we omit the functional criteria from healing or complex fracture of an upper healing or complex fracture of the 1.23 (Non-healing or complex fracture extremity) are not sufficient femur, tibia, pelvis, or one or more of of an upper extremity) and 101.23 (Non- replacements for non-pathologic the talocrural bones), 1.23 (Non-healing healing or complex fracture of an upper fractures due to the exclusion of or complex fracture of an upper extremity), because the proposed criteria fractures of bones such as the skull, ribs, extremity) (Non-healing or complex makes the new listings more difficult to and clavicle. fracture of the femur, tibia, pelvis, or Response: We do not agree with these meet or equal than the prior listings. one or more of the talocrural bones), or Response: We partially adopted this comments. First, listings 1.22 (Non- 101.23 (Non-healing or complex fracture comment. Functional criteria continue healing or complex fracture of the of an upper extremity). femur, tibia, pelvis, or one or more of to be an important part of establishing Furthermore, the criterion in 1.19 the talocrural bones), 1.23 (Non-healing the inability to perform ‘‘any gainful (Pathologic fractures due to any cause) or complex fracture of an upper activity,’’ which is the level of severity and 101.19 (Pathologic fractures due to extremity), 101.22 (Non-healing or required to meet or equal a listing.45 We any cause) for three fractures in a 12- complex fracture of the femur, tibia, did, however, modify the criteria in 1.23 month period is not appropriate for non- pelvis, or one or more of the talocrural (Non-healing or complex fracture of an pathologic fractures. Each traumatic bones), and 101.23 (Non-healing or upper extremity) and 101.23 (Non- fracture constitutes a separate medically complex fracture of an upper extremity) determinable impairment under our healing or complex fracture of an upper include the same types of fractures as program rules, and each would need to extremity) to remove the proposed current listings 1.06 (Fracture of the be evaluated separately to determine criterion for the use of a hand-held femur, tibia, pelvis, or one or more of whether the duration requirement is assistive device, and to instead focus on the tarsal bones), 1.07 (Fracture of an met. As we state in 20 CFR 404.1523(a) 41 20 CFR 404.1521 and 416.921. upper extremity), 101.06 (Fracture of the and 419.923(a), we cannot combine two 42 20 CFR 404.1502(i) and 416.902(i). femur, tibia, pelvis, or one or more of or more unrelated severe impairments to 43 20 CFR 404.1502(g) and 416.902(g). the tarsal bones), and 101.07 (Fracture meet the 12 month duration test. In 44 20 CFR 404.1525(a) and 416.925(a). of an upper extremity), which also did contrast, multiple pathologic fractures 45 Id. not include fractures of the skull, ribs, over an extended period are considered

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related impairments because of the within a 12-month period; for example, device. We do not believe that this underlying medical condition (for separate incidents may occur within requirement will cause the affected example, osteoporosis). hours or days of each other. However, public to pursue a different course of Comment: One commenter expressed the associated limitation(s) of function treatment than they otherwise would concern about children with a diagnosis must last, or be expected to last, at least have under our existing rules. of osteogenesis imperfecta, and 12 months.’’ This criterion ensures that We also note that many of our suggested we revise the criteria to only the severity of the osteogenesis medical listings include a functional require a ‘‘definitive diagnosis’’ of imperfecta, or any other types of limitation component, and in the case of osteogenesis imperfecta with multiple pathological fractures, rises to the level certain musculoskeletal disorders, we fractures at one time, rather than the required. believe the use of certain treatments or proposed requirement for fractures on Comment: One commenter asked that assistive devices is the only objective separate and distinct occasions. we clarify when we adjust a child’s age functional component we can assess. Response: We did not make changes for prematurity. We do not believe that this requirement in response to this comment. Response: We did not make any will cause the affected public to pursue Osteogenesis imperfecta is not the only changes in the final rules based on this a different course of treatment than they cause of pathologic fractures evaluated comment. In 101.00O2a (Severity of otherwise would have, including the under 101.19 (Pathologic fractures due motor development delay), we provide a purchase of assistive devices, for people to any cause). Other causes include citation to 20 CFR 416.924b(b), which who may seek to apply for disability. osteoporosis, other skeletal dysplasias, explains at length our rules for This rule requires only the documented side effects of medications, and correcting the chronological age of medical need for the assistive device, disorders of the endocrine system. The premature infants. We have not changed not the ownership of the device. We do criteria for pathological fractures need those rules here; as such, we direct the not believe that this final rule will result to be appropriate for pathologic commenter to the rules cited above. in people, who previously had a fractures and not just for one condition Comment: One commenter expressed documented medical need for an that has variable effects such as concern that the listing will ‘‘favor or assistive device but who had chosen not osteogenesis imperfecta. The encourage claimants to engage in to in consultation with their physician terminology ‘‘definitive diagnosis’’ medical treatment that they would not due to a perceived lack of benefit (for would contradict our other regulations. otherwise engage in’’ and that example, because they are confined to Our regulations require a medically ‘‘claimants should make treatment bed) purchase and assistive device to determinable impairment established by decisions with their medical providers satisfy the functional requirements of objective medical evidence. We and the other consideration should be this rule. Conversely, a person without specifically state that we do not use a whether or not the treatment may be a documented medical need for an diagnosis to establish the existence of an beneficial and if the potential benefits assistive device in their record will impairment.46 Once we establish the outweigh any risks.’’ A similar comment continue to be evaluated under steps 4 presence of a severe medically outlined a series of examples of clients and 5 of the disability determination determinable impairment, we then who were found eligible at Step 3 under process even if they are not found determine whether the level of current rules but who the commenter eligible at step 3. impairment results in the inability to does not believe would be found eligible Comment: One commenter expressed perform ‘‘any gainful activity,’’ which is at Step 3 under this final rule and concern that we do not provide the level of severity required to meet or would therefore need to move on to quantitative data to show the validity of equal a listing.47 A ‘‘definitive subsequent steps in the sequential these listings, noting that many people diagnosis’’ is not, on its own, indicative evaluation process. engage in work even though their of listing level severity. Response: We did not make changes impairments meet the listing We describe in 101.00J (What do we in response to this comment. In fact, the requirements. The commenter opined consider when we evaluate pathologic Act specifically prevents us from that this challenges the validity of using fractures due to any cause (101.19)?) interfering with medical practice.49 At the listings to determine whether a that osteogenesis imperfecta is one of no point do we instruct or require that person is disabled, and that the listings the conditions that might result in any form of treatment be prescribed, are in conflict with the statutory pathologic fractures. Osteogenesis which would violate the cited section of definition of disability. Several other imperfecta is a genetic disease that can the Act. We only state that in some commenters asserted that we do not manifest at differing levels of severity. cases, we consider some items (for provide any justification for making the For this reason, there is a recognized example, the use of handheld assistive substantial changes. classification system for the disorder, devices, for certain disorders) or Response: We did not make any from type 1 to type 4, to differentiate treatments to be effective functional changes in the final rules based on these between the clinical characteristics of indicators of the presence of a particular comments. Contrary to the commenters’ each type.48 The requirement in 101.19 musculoskeletal disorder. However, it is assertion that we did not provide (Pathologic fractures due to any cause) understood that if a person is engaging justification or sources for our changes, is that the fractures ‘‘must occur on in medical treatment, that treatment our NPRM included a list of 64 references that we relied on in separate, distinct occasions, rather than must be prescribed by a medical source, 50 multiple fractures occurring at the same and that source will have documented proposing these rules. We also invited time, but they may affect the same the need for the treatment or assistive the public to comment on these bone(s) multiple times. There is no references and the data contained required period between the incidents 49 Sec. 216(i)1: ‘‘Nothing in this title shall be within them. The listings help ensure of fracture(s), but they must all occur construed as authorizing the Commissioner or any that determinations and decisions of other officer or employee of the United States to disability have a sound medical basis, interfere in any way with the practice of medicine that claimants receive equal treatment 46 20 CFR 404.1521 and 416.921. or with relationships between practitioners of 47 20 CFR 404.1525(a) and 416.925(a). medicine and their patients, or to exercise any throughout the country, and that we can 48 https://radiopaedia.org/articles/osteogenesis- supervision or control over the administration or imperfecta-classification-1?lang=us. operation of any hospital.’’ 50 83 FR 20646, 20656–58 (2019).

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readily identify the majority of people Response: In some cases, the revised functional capacity, and his or her age, who are disabled. The level of severity criteria may result in more denials of education, and past work experience. described in the listings is such that we claims. However, our updated listing What is our authority to make rules consider a person, who is not engaging criteria most accurately reflect current and set procedures for determining in substantial gainful activity (SGA) and medical thought in these areas. As well, whether a person is disabled under our has an impairment that meets or we note that not all claimants applying statutory definition? medically equals all of the criteria of the on the basis of a musculoskeletal Under the Act, we have authority to listing, is generally considered unable to disorder will necessarily be denied make rules and regulations and to do any work because of the medical because of these listings. In some cases, establish necessary and appropriate impairment alone at step 3 of the the impairment(s) also could be found procedures to carry out such sequential evaluation process. When to medically equal a listing (or, in the provisions.54 such a person’s impairment or case of a child seeking SSI payments, How long will these final rules be in combination of impairments meets or functionally equal the listings). If an effect? medically equals the level of severity adult claimant’s impairment(s) does not These final rules will remain in effect described in the listing for the required meet or medically equal any listing, in for 5 years after the date they become duration, we will find the person some cases he or she could be found effective, unless we extend them, or disabled on the basis of medical facts disabled at a later step in the sequential revise and issue them again. We will alone in the absence of evidence to the evaluation process once we consider the continue to monitor these rules to contrary (for example, the actual person’s residual functional capacity ensure that they continue to meet performance of substantial gainful and the factors of age, education, and program purposes, and may revise them activity). vocational experience and skills. before the end of the 5-year period if Comment: One commenter opined Comment: One commenter asserted warranted. that these rules will negatively affect that our proposed revisions discriminate How we will implement these final current disability beneficiaries by taking against the poor because the criteria in rules? away their benefits. the listings depend on specific We will begin to apply these final Response: When these rules become diagnoses that, in turn, require medical rules to new applications, pending final, we will not terminate any person’s tests that many people cannot afford claims, and CDRs, as appropriate, as of disability benefits solely because we 55 and that we will not purchase. The the effective date of these final rules. have revised these listings. We do not commenter notes that these tests are not readjudicate previously decided cases Regulatory Procedures specifically required by the listings, but when we revise our listings. Executive Order 12866, as that they still help establish disability However, under the Act, we are Supplemented by Executive Order for those people who are able to afford required to periodically conduct 13563 them. continuing disability reviews (CDR) to We consulted with the Office of Response: We did not make any determine whether beneficiaries are still Management and Budget (OMB) and changes in the final rules based on these disabled.52 When we conduct CDRs, we determined that these final rules meet comments. The Act and our regulations re-examine an existing beneficiary’s or the criteria for a significant regulatory require a claimant to submit medical recipient’s case using the Medical action under Executive Order 12866, as evidence to establish a medically Improvement Review Standard (MIRS) supplemented by Executive Order determinable impairment. We use to determine whether a person 13563. Therefore, OMB reviewed the medical evidence generally accepted in continues to meet the disability rules. Details about the economic the medical community and available in requirements of the Act.53 When SSA medical records to establish and impacts of our rules follow. applies the MIRS, our threshold inquiry Anticipated Reduction in Transfer determine the severity of an is whether the beneficiary or recipient impairment. We consider all available Payments Made by Our Programs: has an impairment that still meets that In 2017, we conducted a case study evidence about all of a claimant’s listing. So, if a disability beneficiary or impairments, not just information about covering about 1,400 initial DDS-level recipient undergoes a CDR after these decisions, based on the proposed rules a particular allegation, such as a final rules becomes effective, the musculoskeletal condition. We may also as developed at that time. The case standards these rules contain could study sample was stratified by specific purchase medical examinations or tests potentially be applied; theoretically, to obtain the evidence that we need.51 musculoskeletal diagnosis category and then, the new standards could included listing-level allowances as We may find a person disabled even if contribute to the possibility of a he or she does not have a medical well as denials at the medical- cessation of benefits or payments. We vocational stage of the disability diagnosis for his or her impairment(s) again, note, however, that we would when applying for benefits, as long as determination process. Implementation examine all relevant factors when of this final rule would result in we are able to establish a medically conducting the CDR, just as we do determinable severe physical or mental decisional changes relative to those during an initial or reconsideration made under current listings both from impairment or combination of claim. These include whether the impairments that meets the duration allowance to denial and from denial to impairment(s) meets or equals a listing, allowance. Based on the results of the requirements. whether there has been medical Comment: Some commenters improvement in the impairments 54 Sections 205(a), 702(a)(5), and 1631(d)(1) (42 expressed concern that our proposed present at the most recent favorable U.S.C. 405(a), 902(a)(5), 1383(d)(1)). updates would ultimately result in more determination, and, if necessary, 55 We will use the final rules beginning on its denials of claims at the initial and whether the person has the ability to effective date. We will apply the final rules to new reconsideration levels. engage in SGA, given his or her residual applications filed on or after the effective date, and to claims that are pending on and after the effective date. This means that we will use the final rules on 51 20 CFR 404.1517, 404.1519, 404.1519a– 52 42 U.S.C. 421(i), 20 CFR 404.1589, 416.989. and after its effective date in any case in which we 404.1519f, 404.1519k, 416.917, 416.919, and 53 42 U.S.C. 423(f), 20 CFR 404.1594, 416.994, make a determination or decision, including CDRs, 416.919a–419.919f. 416.994a. as appropriate. 20 CFR 404.902 and 416.1402.

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case study, we estimate that for the corrections. Offsetting administrative on a substantial number of small entities OASDI program, there would be a net costs include those to process additional because they affect individuals only. annual reduction in allowances of about appeals for the net increase in OASDI Therefore, the Regulatory Flexibility 260, the net effect of an estimated 480 claims that are denied, as well as costs Act, as amended, does not require us to annual changes from allowance to to train Disability Determination Service prepare a regulatory flexibility analysis. denial, and an estimated 220 annual (DDS) employees, and for increased Paperwork Reduction Act changes from denial to allowance. This maintenance-of-the-rolls actions from small shift is primarily driven by the net increase in SSI recipients. These final rules comprehensively claimants who were allowed at the Although this rule results in, on net, revise the regulatory criteria we use to listing-level (Step 3) under existing slightly more overall denials than evaluate musculoskeletal disorders, and regulations but whose case files do not allowances when compared to the will affect the OASDI and SSI programs. contain medical evidence indicating current regulations, because of the SSA uses multiple existing OMB- they would meet the new assistive administrative efficiencies resulting approved information collection (IC) devices requirements in this final rule, from decisions made earlier in the tools to document disability claims for because such documentation is not sequential evaluation process, the all body system disorders, including required under current rules. Under overall impact to this rulemaking is a musculoskeletal disorders. However, implementation of this final rule, some slight reduction in administrative costs. because these ICs are not specific to any of these claimants would be expected to particular body system disorders, they be able to provide this information Anticipated Costs to the Public do not require modification in any way under the new requirement, and would We do not believe there are any more as a result of these final rules. As well, do so. We made a small adjustment to than de minimis costs to the public the regulatory changes are not changing the case study results based on this associated with this rulemaking. First, the frequency of reporting or the expectation. as discussed earlier in responses to burden—including documentation— For the SSI program the estimates comments on the Notice of Proposed involved in musculoskeletal disability indicate a net increase in annual Rulemaking as well as in the Paperwork claims. So, we are not making any allowances of about 180, the net effect Reduction Act section below, we do not changes under the Paperwork Reduction of an estimated 285 annual changes believe any of the requirements Act as a result of these rules. from denial to allowance, and an contained in this rulemaking will Below we list for informational estimated 105 annual changes from impose new additional costs outside of purposes the ICs that SSA uses to allowance to denial. The results of the the normal course of business for collect information related to actuarial analysis using the case study applicants. We do not believe that the Musculoskeletal (and all other) results indicate a net reduction in new rules induce any new medical disability Title II & Title XVI claims. OASDI benefit payments ($263 million) imaging requirements and do not However, for the reasons provided and a net increase in Federal SSI believe they will result in additional above, we are not modifying them in payments ($67 million) over the FY purchasing and documentation of any way due to these final rules. 2021 Budget projection period, FYs assistive devices. • OMB No. 0960–0579 (SSA–3368, 2021–30. Congressional Review Act Disability Report—Adult) Anticipated Administrative Costs to • the Social Security Administration: OMB No. 0960–0577 (SSA–3820, Pursuant to the Congressional Review Disability Report—Child) In calculating whether the Act (5 U.S.C. 801 et seq.), OMB • implementation of these final rules will OMB No. 0960–0578 (SSA–3369, designated these rules as major rules, as Work History Report) result in administrative costs or savings defined by 5 U.S.C. 804(2). • to the agency, we examine two sources: OMB No. 0960–0540 (SSA–3371, Pain (1) Work-years and (2) direct financial Executive Order 13132 (Federalism) Report—Child) • OMB No. 0960–0681 (SSA–3373, administrative costs. We analyzed these final rules in Function Report—Adult) We define work-years as a measure of accordance with the principles and • OMB No. 0960–0542 (SSA–3375, the SSA employee work time these final criteria established by Executive Order SSA–3376, SSA–3377, SSA–3378 and rules will cost or save during 13132, and determined that they will SSA–3379, Function Report—Child) implementation of its policies. We not have sufficient Federalism • OMB No. 0960–0635 (SSA–3380, calculate one work-year as 2,080 hours implications to warrant the preparation Function Report—Adult—Third of labor, which represents the amount of of a Federalism assessment. We also Party) hours one SSA employee works per year determined that the final rules will not • OMB No. 0960–0623 (SSA–827, based on a standard 40-hour workweek. preempt any State law or State Authorization to Disclose Information We are estimating net administrative regulations or affect the States’ abilities to the Social Security Administration) savings of less than $2 million and 15 to discharge traditional State • OMB No. 0960–0598 (SSA–820 or work years per year. The administrative governmental functions. savings result from fewer SSI appeals, SSA–821, Work Activity Report—Self fewer maintenance actions for OASDI Executive Order 13771 Employed Person & Work Activity beneficiaries, and administrative Report—Employee) Based upon the criteria established in • efficiencies from decisions made earlier Executive Order 13771 and M–17–21 OMB No. 0960–0144 (SSA–3441, in the sequential evaluation process. Disability Report—Appeal) (‘‘Guidance Implementing E.O. 13771’’), • Because we project an increase in SSI we consider this rule a transfer rule OMB No. 0960–0499 (SSA–3881, allowances, we believe there will be with no more than de minimis costs. As Questionnaire for Children Claiming fewer SSI appeals once the regulation is SSI Benefits) such, it is exempt from requirements • implemented. We estimate an increase under E.O. 13771. OMB No. 0960–0720 (SSA–3830, in OASDI denials. Because more OASDI Certification of Low Birth Weight for claims would be denied, there would be Regulatory Flexibility Act SSI Eligibility) fewer OASDI actions to process such as We certify that these final rules will (Catalog of Federal Domestic Assistance change of address or payment not have a significant economic impact Program Nos. 96.001, Social Security—

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Disability Insurance; 96.002, Social ■ v. Under section 14.00, revise listings 2. We evaluate inflammatory arthritis (for Security—Retirement Insurance; 96.004, 14.04B, 14.04C2, 14.05A, 14.09A, and example, rheumatoid arthritis) under the Social Security—Survivors Insurance; and 14.09B introductory text; and listings in 14.00. 96.006, Supplemental Security Income) ■ 3. We evaluate curvatures of the skeletal c. In part B: spine that interfere with your ability to List of Subjects ■ i. Amend the table of contents by breathe under the listings in 3.00, impair revising the entry for section 101.00; 20 CFR Part 404 myocardial function under the listings in ■ ii. Revise section 101.00; 4.00, or result in social withdrawal or Administrative practice and ■ iii. Revise paragraph 104.00F9b; depression under the listings in 12.00. procedure; Blind, Disability benefits; ■ iv. Revise paragraph 109.00C; 4. We evaluate non-healing or pathological fractures due to cancer, whether it is a Old-age, survivors, and disability ■ v. Revise paragraphs 114.00C6 primary site or metastases, under the listings insurance; Reporting and recordkeeping through 114.00C8, 114.00C12, requirements; Social Security. in 13.00. 114.00D4c(ii), 114.00D6a, 114.00D6e(i), 5. We evaluate the leg pain associated with 20 CFR Part 416 and 114.00D6e(ii); and peripheral vascular claudication and foot ■ vi. Under section 114.00, revise ulceration associated with peripheral arterial Administrative practice and disease under the listings in 4.00. procedure; Aged, Blind, Disability cash listings 114.04B, 114.04C2, 114.05A, 114.09A, and 114.09B introductory text. 6. We evaluate burns that do not require payments; Public assistance programs; continuing surgical management under the Reporting and recordkeeping The revisions read as follows: listings in 8.00. requirements; Supplemental Security Appendix 1 to Subpart P of Part 404— C. What evidence do we need to evaluate Income (SSI). Listing of Impairments your musculoskeletal disorder? The Commissioner of Social Security, 1. General. We need objective medical * * * * * evidence from an acceptable medical source Andrew Saul, having reviewed and 2. Musculoskeletal Disorders (1.00 and to establish that you have a medically approved this document, is delegating 101.00): April 2, 2026. determinable musculoskeletal disorder. We the authority to electronically sign this * * * * * also need evidence from both medical and document to Faye I. Lipsky, who is the nonmedical sources, who can describe how primary Federal Register Liaison for the Part A you function, to assess the severity and Social Security Administration, for * * * * * duration of your musculoskeletal disorder. purposes of publication in the Federal We will determine the extent and kinds of 1.00 Musculoskeletal Disorders Register. evidence we need from medical and * * * * * nonmedical sources based on the individual Faye I. Lipsky, facts about your disorder. For our basic rules 1.00 Musculoskeletal Disorders Federal Register Liaison, Office of Legislative on evidence, see §§ 404.1512, 404.1513, and Congressional Affairs, Social Security A. Which musculoskeletal disorders do we 404.1520b, 416.912, 416.913, and 416.920b of Administration. evaluate under these listings? this chapter. For our rules on evidence about For the reasons set out in the 1. We evaluate disorders of the skeletal your symptoms, see §§ 404.1529 and 416.929 preamble, we are amending subpart P of spine (vertebral column) or of the upper or of this chapter. lower extremities that affect musculoskeletal 2. Physical examination report(s). In the part 404 of chapter III of title 20 of the functioning under these listings. We use the report(s) of your physical examination, we Code of Federal Regulations as set forth term ‘‘skeletal’’ when we are referring to the require a medical source’s detailed below: structure of the bony skeleton. The skeletal description of the orthopedic, neurologic, or spine refers to the bony structures, ligaments, other objective clinical findings appropriate PART 404—FEDERAL OLD-AGE, and discs making up the spine. We refer to to your specific musculoskeletal disorder SURVIVORS AND DISABILITY the skeletal spine in some musculoskeletal from his or her direct observations during INSURANCE (1950–) listings to differentiate it from the your physical examination. We will not neurological spine (see 1.00B1). accept a report of your statements about your Subpart P—Determining Disability and Musculoskeletal disorders may be congenital symptoms and limitations in place of the Blindness or acquired, and may include deformities, medical source’s report of objective clinical amputations, or other abnormalities. These findings. We will not use findings on imaging ■ 1. The authority citation for subpart P disorders may involve the bones or major or other diagnostic tests (see 1.00C3) as a of part 404 continues to read as follows: joints; or the tendons, ligaments, muscles, or substitute for findings on physical other soft tissues. examination. Authority: Secs. 202, 205(a)–(b) and (d)– 2. We evaluate soft tissue injuries a. When the medical source reports that a (h), 216(i), 221(a) and (h)–(j), 222(c), 223, (including burns) or abnormalities that are clinical test sign(s) is positive, unless we 225, and 702(a)(5) of the Social Security Act under continuing surgical management (see have evidence to the contrary, we will (42 U.S.C. 402, 405(a)–(b) and (d)–(h), 416(i), 1.00O1). The injuries or abnormalities may assume that he or she performed the test 421(a) and (h)–(j), 422(c), 423, 425, and affect any part of the body, including the face properly and accept the medical source’s 902(a)(5)); sec. 211(b), Pub. L. 104–193, 110 and skull. interpretation of the test. For example, we Stat. 2105, 2189; sec. 202, Pub. L. 108–203, 3. We evaluate curvatures of the skeletal will assume a straight-leg raising test was 118 Stat. 509 (42 U.S.C. 902 note). spine that affect musculoskeletal functioning conducted properly (that is, in sitting and ■ 2. Amend appendix 1 to subpart P of under 1.15. If a curvature of the skeletal supine positions), even if the medical source part 404 as follows: spine is under continuing surgical does not specify the positions in which the ■ a. In the introductory text before part management (see 1.00O1), we will evaluate it test was performed. A, revise paragraph 2; under 1.21 using our rules for determining b. If you use an assistive device (see ■ b. In part A: medical equivalence. See §§ 404.1526 and 1.00C6), the report must support the medical ■ i. Amend the table of contents for part 416.926 of this chapter. need for the device. B. Which related disorders do we evaluate c. If your musculoskeletal disorder causes A by revising the entry for section 1.00; ■ under other listings? a reduction in muscle strength, the report ii. Revise section 1.00; 1. We evaluate a disorder or injury of the must document measurement of the strength ■ iii. Revise paragraph 4.00G4b; skeletal spine that results in damage to, and of the muscle(s) in question. The ■ iv. Revise paragraphs 14.00C6 through neurological dysfunction of, the spinal cord measurement should be based on a muscle 14.00C8, 14.00C12, 14.00D4c(i), and its associated nerves (for example, strength grading system that is considered 14.00D6a, 14.00D6e(i), and 14.00D6e(ii); paraplegia or quadriplegia) under the listings medically acceptable based on your age and and in 11.00. impairments. For example, a grading system

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of 0 to 5, with 0 indicating complete loss of demonstrated by evidence that your muscle involves one or both of your hands, the strength and 5 indicating maximum strength strength is less than active range of motion report must also document measurements of or equivalent medically acceptable scale (see (ROM) against gravity with maximum grip and pinch strength. Table 1). Reduction in muscle strength is resistance. If the reduction in muscle strength

TABLE 1—GRADING SYSTEM OF MUSCLE FUNCTION

Grade Function of the muscle

0—None ...... No visible or palpable contraction. 1—Trace ...... Visible or palpable contraction with no motion. 2—Poor ...... Active ROM with gravity eliminated. 3—Fair ...... Active ROM against gravity only, without resistance. 4—Good ...... Active ROM against gravity, moderate resistance. 5—Normal ...... Active ROM against gravity, maximum resistance.

3. Imaging and other diagnostic tests. treatment may be temporary or long-term. We ability to walk, or perform fine and gross a. Imaging refers to medical imaging need information over a sufficient period to movements (see 1.00E4), with the orthosis(es) techniques, such as x-ray, computed determine the effects of treatment on your in place. If you cannot use your orthosis(es), tomography (CT), magnetic resonance current musculoskeletal functioning and we need evidence from a medical source imaging (MRI), and radionuclide scanning. permit reasonable projections about your documenting the medical basis for your For the purpose of these listings, the imaging future functioning. We will determine the inability to use the device(s). must be consistent with the prevailing state amount of time that constitutes a sufficient d. Hand-held assistive devices. Hand-held of medical knowledge and clinical practice as period in consultation with a medical assistive devices include walkers, canes, or the proper technique to support the consultant on a case-by-case basis. In some crutches, which you hold onto with your evaluation of the disorder. cases, we will need additional evidence to hand(s) to support or aid you in walking. b. Findings on imaging must have lasted, make an assessment about your response to When you use a one-handed, hand-held or be expected to last, for a continuous treatment. Your musculoskeletal disorder assistive device (such as a cane) with one period of at least 12 months. may meet or medically equal one of these upper extremity to walk and you cannot use c. Imaging and other diagnostic tests can listings regardless of whether you were your other upper extremity for fine or gross provide evidence of physical abnormalities; prescribed opioid medication, or whether movements (see 1.00E4), the need for the however, these abnormalities may correlate you were prescribed opioid medication and assistive device limits the use of both upper poorly with your symptoms, including pain, did not follow this prescribed treatment. extremities. If you use a hand-held assistive 6. Assistive devices. or with your musculoskeletal functioning. device, we need evidence from a medical Accordingly, we will not use findings on a. General. An assistive device, for the source describing how you walk with the imaging or other diagnostic tests as a purposes of these listings, is any device that device. substitute for findings on physical you use to improve your stability, dexterity, e. Wheeled and seated mobility devices. examination about your ability to function, or mobility. An assistive device can be worn Wheeled and seated mobility devices are nor can we infer severity or functional (see 1.00C6b and 1.00C6c), hand-held (see limitations based solely on such tests. 1.00C6d), or used in a seated position (see assistive devices that you use in a seated d. For our rules on purchasing imaging and 1.00C6e). When we use the phrase position, such as manual wheelchairs, other diagnostic tests, see §§ 404.1519k, ‘‘documented medical need,’’ we mean that motorized wheelchairs, rollators, and power 404.1519m, 416.919k, and 416.919m of this there is evidence from a medical source that operated vehicles. If you use a wheeled and chapter. supports your medical need for an assistive seated mobility device, we need evidence 4. Operative reports. If you have had a device (see 1.00C2b) for a continuous period from a medical source describing the type of surgical procedure, we need a copy of the of at least 12 months (see 1.00C6a). This wheeled and seated mobility device that you operative report, including details of the evidence must describe any limitation(s) in use and how you use the assistive device findings at surgery and information about your upper or lower extremity functioning including any customizations or any medical complications that may have and the circumstances for which you need to modifications to the assistive device itself or occurred. If we do not have the operative use the assistive device. We do not require for your use of the assistive device. For report, we need confirmatory evidence of the that you have a specific prescription for the example, if you use a wheelchair that surgical procedure from a medical source (for assistive device. typically requires the use of both hands but example, detailed follow-up reports or b. Prosthesis(es). A prosthesis is a wearable has been customized for your use with one notations in the medical records concerning device, such as an artificial limb, that takes hand, then we will evaluate your use of the the surgical procedure in your medical the place of an absent body part. If you have assistive device using the criteria in 1.00E3b history). a prosthesis(es), we need evidence from a and not 1.00E3a. 5. Effects of treatment. medical source documenting your ability to (i) Wheeled and seated mobility devices a. General. Treatments for musculoskeletal walk, or perform fine and gross movements involving the use of both hands. Some disorders may have beneficial or adverse (see 1.00E4), with the prosthesis(es) in place. wheeled and seated mobility devices involve effects, and responses to treatment vary from When amputation(s) involves one or both the use of both hands to use the assistive person to person. We will evaluate all of the lower extremities, it is not necessary for the device (for example, most manual effects of treatment (including surgical medical source to evaluate your ability to wheelchairs). If you use a wheeled and treatment, medications, and therapy) on the walk without the prosthesis(es) in place. If seated mobility device that involves the use symptoms, signs, and laboratory findings of you cannot use your prosthesis(es) due to of both hands, then the need for the assistive your musculoskeletal disorder, and on your complications affecting your residual limb(s), device limits the use of both upper musculoskeletal functioning. we need evidence from a medical source extremities. b. Response to treatment. To evaluate your documenting the condition of your residual (ii) Wheeled and seated devices involving musculoskeletal functioning in response to limb(s) and the medical basis for your the use of one hand. Some wheeled and treatment, we need the following: A inability to use the device(s). seated mobility devices involve the use of description, including the frequency of the c. Orthosis(es). An orthosis is a wearable one hand to use the assistive device (for administration, of your medications; the type device, such as a brace, that prevents or example, most motorized wheelchairs). If you and frequency of therapy you receive; and a corrects a dysfunction or deformity by use a wheeled and seated mobility device description of your response to treatment and aligning or supporting the affected body part. that involves the use of one upper extremity any complications you experience related to If you have an orthosis(es), we need evidence and you cannot use your other upper your musculoskeletal disorder. The effects of from a medical source documenting your extremity for fine or gross movements (see

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1.00E4), then the need for the assistive device this chapter for how we evaluate symptoms, pulposus, spinal osteoarthritis (spondylosis), limits the use of both upper extremities. including pain, related to your vertebral slippage (spondylolisthesis), 7. Longitudinal evidence. musculoskeletal disorder. degenerative disc disease, facet arthritis, and a. We generally need a longitudinal E. How do we use the functional criteria to vertebral fracture or dislocation. Spinal medical record to assess the severity and evaluate your musculoskeletal disorder disorders may cause cervical or lumbar spine duration of your musculoskeletal disorder under these listings? dysfunction when abnormalities of the because the severity of symptoms, signs, and 1. General. The functional criteria are skeletal spine compromise nerve roots of the laboratory findings related to most based on impairment-related physical cervical spine, a nerve root of the lumbar musculoskeletal disorders may improve over limitations in your ability to use both upper spine, or a nerve root of both cervical and time or respond to treatment. Evidence over extremities, one or both lower extremities, or lumbar spines. We consider spinal nerve an extended period will show whether your a combination of one upper and one lower disorders that originate in the nervous system musculoskeletal functioning is improving, extremity. The required impairment-related (for example, spinal arachnoiditis), under the worsening, or unchanging. physical limitation of musculoskeletal neurological disorders body system, 11.00. b. For 1.15, 1.16, 1.17, 1.18, 1.20C, 1.20D, functioning must have lasted, or be expected 2. Compromise of a nerve root(s). 1.22, and 1.23, all of the required criteria to last, for a continuous period of at least 12 Compromise of a nerve root, sometimes must be present simultaneously, or within a months. We do not use the functional criteria referred to as ‘‘nerve root impingement,’’ is close proximity of time, to satisfy the level in 1.20A, 1.20B, or 1.21. a phrase used when a physical object, such of severity needed to meet the listing. The 2. Work environment. We use the relevant as a tumor, herniated disc, foreign body, or phrase ‘‘within a close proximity of time’’ evidence that we have to evaluate your arthritic spur, is pushing on the nerve root means that all of the relevant criteria must musculoskeletal functioning with respect to as seen on imaging or during surgery. It can appear in the medical record within a the work environment rather than the home occur when a musculoskeletal disorder consecutive 4-month period. When the environment. For example, an ability to walk produces irritation, inflammation, or criterion is imaging, we mean that we could independently at home without an assistive compression of the nerve root(s) as it exits reasonably expect the findings on imaging to device does not, in and of itself, indicate an the skeletal spine between the vertebrae. have been present at the date of impairment ability to walk without an assistive device in Related symptoms must be associated with, or date of onset. For listings that use the a work environment. or follow the path of, the affected nerve word ‘‘and’’ to link the elements of the 3. Functional criteria. A musculoskeletal root(s). required criteria, the medical record must disorder satisfies the functional criteria of a a. Compromise of unilateral nerve root of establish the simultaneous presence, or listing when the medical documentation the cervical spine. Compromise of a nerve presence within a close proximity of time, of shows the presence of at least one of the root as it exits the cervical spine between the all the required medical criteria. Once this impairment-related limitations cited in the vertebrae may affect the functioning of the level of severity is established, the medical listing. The required impairment-related associated upper extremity. The physical record must also show that this level of limitation of musculoskeletal functioning examination reproduces the related severity has continued, or is expected to must be medically documented by one of the symptoms based on radicular signs and continue, for a continuous period of at least following: clinical tests appropriate to the specific 12 months. a. A documented medical need (see cervical nerve root (for example, a positive 8. Surgical treatment and physical therapy. 1.00C6a) for a walker, bilateral canes, or Spurling test). For some musculoskeletal disorders, a bilateral crutches (see 1.00C6d) or a wheeled b. Compromise of bilateral nerve roots of medical source may recommend surgery or and seated mobility device involving the use the cervical spine. Although uncommon, if physical therapy (PT). If you have not yet had of both hands (see 1.00C6e(i)); compromise of a nerve root occurs on both the recommended surgery or PT, we will not b. An inability to use one upper extremity sides of the cervical spinal column, assume that these interventions will resolve to independently initiate, sustain, and functioning of both upper extremities may be your disorder or improve your functioning. complete work-related activities involving limited. We will assess each case on an individual fine and gross movements (see 1.00E4), and c. Compromise of a nerve root(s) of the basis. Depending on your response to a documented medical need (see 1.00C6a) for lumbar spine. Compromise of a nerve root as treatment, or your medical sources’ treatment a one-handed, hand-held assistive device (see it exits the lumbar spine between the plans, we may defer our findings regarding 1.00C6d) that requires the use of your other vertebrae may limit the functioning of the the effect of surgery or PT, until a sufficient upper extremity or a wheeled and seated associated lower extremity. The physical period has passed to permit proper mobility device involving the use of one examination reproduces the related consideration or judgment about your future hand (see 1.00C6e(ii)); symptoms based on radicular signs and functioning. When necessary, we will follow c. An inability to use both upper clinical tests. When a nerve root of the the rules on following prescribed treatment extremities to the extent that neither can be lumbar spine is compromised, we require a in §§ 404.1530 and 416.930 of this chapter, used to independently initiate, sustain, and positive straight-leg raising test (also known including consideration of your reasons for complete work-related activities involving as a Lase`gue test) in both supine and sitting failure to follow prescribed treatment. fine and gross movements (see 1.00E4). positions appropriate to the specific lumbar D. How do we consider symptoms, 4. Fine and gross movements. Fine nerve root that is compromised. including pain, under these listings? movements, for the purposes of these listings, G. What do we consider when we evaluate 1. Musculoskeletal disorders may cause involve use of your wrists, hands, and lumbar spinal stenosis resulting in pain or other symptoms; however, your fingers; such movements include picking, compromise of the cauda equina (1.16)? statements about your pain or other pinching, manipulating, and fingering. Gross 1. General. We consider how pain, sensory symptoms will not alone establish that you movements involve use of your shoulders, changes, and muscle weakness caused by are disabled. We will not substitute an upper arms, forearms, and hands; such compromise of the cauda equina due to alleged or a reported increase in the intensity movements include handling, gripping, lumbar spinal stenosis affect your of a symptom, such as pain, no matter how grasping, holding, turning, and reaching. functioning. The cauda equina is a bundle of severe, for a medical sign or diagnostic Gross movements also include exertional nerve roots that descends from the lower part finding present in the listing criteria. Pain is abilities such as lifting, carrying, pushing, of the spinal cord. Lumbar spinal stenosis included as just one consideration in 1.15A, and pulling. Examples of performing fine and can compress the nerves of the cauda equina, 1.16A, and 1.18A, but it is not required to gross movements include, but are not limited causing sensory changes and muscle satisfy the criteria in 1.15, 1.16, and 1.18. to, taking care of personal hygiene, sorting weakness that may affect your ability to stand 2. To consider your symptom(s), we and handling papers or files, and placing or walk. Pain related to compromise of the require objective medical evidence from an files in a file cabinet at or above waist level. cauda equina is nonradicular because it is acceptable medical source showing the F. What do we consider when we evaluate not typically associated with a specific nerve existence of a medically determinable disorders of the skeletal spine resulting in root (as is radicular pain in the cervical or musculoskeletal impairment that we could compromise of a nerve root(s) (1.15)? lumbar spine). reasonably expect to produce the 1. General. We consider musculoskeletal 2. Compromise of the cauda equina due to symptom(s). See §§ 404.1529 and 416.929 of disorders such as herniated nucleus lumbar spinal stenosis can affect your ability

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to walk or stand because of neurogenic in the skeletal spine, extremities, or other 5. Amputation of one lower extremity or claudication (also known as parts of the skeletal system. Pathologic both lower extremities with complications of pseudoclaudication), a condition usually fractures result from disorders that weaken the residual limb(s) (1.20D). Under 1.20D, we causing nonradicular pain that starts in the the bones, making them vulnerable to consider the amputation of one lower low back and radiates bilaterally (or less breakage. Pathologic fractures may occur extremity or both lower extremities at or commonly, unilaterally) into the buttocks with osteoporosis, osteogenesis imperfecta or above the ankle. We also consider the and lower extremities (or extremity). any other skeletal dysplasias, side effects of condition of your residual limb(s), whether Extension of the lumbar spine, which occurs medications, and disorders of the endocrine you can wear a prosthesis(es) (see 1.00C6b), when you walk or stand, may provoke the or other body systems. Under 1.19, the and whether you have a documented medical pain of neurogenic claudication. The pain fractures must have occurred on separate, need (see 1.00C6a) for a hand-held assistive may be relieved by forward flexion of the distinct occasions, rather than multiple device(s) (see 1.00C6d) or a wheeled and lumbar spine or by sitting. In contrast, the leg fractures occurring at the same time, but the seated mobility device (see 1.00C6e). If you pain associated with peripheral vascular fractures may affect the same bone(s) have a non-healing residual limb(s) and are claudication results from inadequate arterial multiple times. There is no required time that receiving ongoing surgical treatment blood flow to a lower extremity. It occurs must elapse between the fractures, but all expected to re-establish or improve function, repeatedly and consistently when a person three must occur within a 12-month period; and that ongoing surgical treatment has not walks a certain distance and is relieved when for example, separate incidents may occur ended, or is not expected to end, within at the person rests. within hours or days of each other. We least 12 months of the initiation of the H. What do we consider when we evaluate evaluate non-healing or complex traumatic surgical management (see 1.00L), we evaluate reconstructive surgery or surgical arthrodesis fractures without accompanying pathology your musculoskeletal disorder under 1.21. of a major weight-bearing joint (1.17)? under 1.22 or 1.23. L. What do we consider when we evaluate 1. General. We consider reconstructive K. What do we consider when we evaluate soft tissue injuries or abnormalities under surgery or surgical arthrodesis when an amputation due to any cause (1.20)? continuing surgical management (1.21)? acceptable medical source(s) documents the 1. General. We consider amputation (the 1. General. surgical procedure(s) and associated medical full or partial loss or absence of any a. We consider any soft tissue injury or treatments to restore function of, or eliminate extremity) due to any cause including abnormality involving the soft tissues of the motion in, the affected major weight-bearing trauma, congenital abnormality or absence, body, whether congenital or acquired, when joint. Reconstructive surgery may be done in surgery for treatment of conditions such as an acceptable medical source(s) documents a single procedure or a series of procedures cancer or infection, or complications of the need for ongoing surgical procedures and directed toward the salvage or restoration of peripheral vascular disease or diabetes associated medical treatments to restore function of the affected body part(s) (see functional use of the affected joint. mellitus. 2. Amputation of both upper extremities 1.00O1). Surgical management includes the 2. Major weight-bearing joints are the hip, (1.20A). Under 1.20A, we consider upper surgery(ies) itself, as well as various post- knee, and ankle-foot. The ankle and foot are extremity amputations that occur at any level surgical procedures, surgical complications, considered together as one major joint. at or above the wrists (carpal joints), up to infections or other medical complications, 3. Surgical arthrodesis is the artificial and including disarticulation of the shoulder related illnesses, or related treatments that fusion of the bones that form a joint, (glenohumeral) joint. If you have had both delay your attainment of maximum benefit essentially eliminating the joint. upper extremities amputated at any level at from therapy (see 1.00O2). I. What do we consider when we evaluate or above the wrists up to and including the b. Surgical procedures and associated abnormality of a major joint(s) in any shoulder, your impairment satisfies the treatments typically take place over extended extremity (1.18)? duration requirement in §§ 404.1509 and periods, which may render you unable to 1. General. We consider musculoskeletal 416.909 of this chapter. For amputations perform work-related activity on a sustained disorders that produce anatomical below the wrist, we will follow the rules basis. To document such inability, we must abnormalities of major joints of the described in 1.00S. We do not evaluate have evidence from an acceptable medical extremities, which result in functional amputations below the wrist under 1.20A source(s) confirming that the surgical abnormalities in the upper or lower because the resulting limitation of function of management has continued, or is expected to extremities (for example, osteoarthritis, the thumb(s), finger(s), or hand(s) will vary, continue, for at least 12 months from the date chronic infections of bones and joints, and depending on the extent of loss and of the first surgical intervention. These surgical arthrodesis of a joint). Abnormalities corresponding effect on fine and gross procedures and treatments must be directed of the joints include ligamentous laxity or movements. toward saving, reconstructing, or replacing rupture, soft tissue contracture, or tendon 3. Hemipelvectomy or hip disarticulation the affected part of the body to re-establish rupture, and can cause muscle weakness of (1.20B). Under 1.20B, we consider or improve its function, and not for cosmetic the affected joint(s). hemipelvectomy, which involves amputation appearances alone. a. An anatomical abnormality is one that of an entire lower extremity through the c. Examples include malformations, third- is readily observable by a medical source sacroiliac joint, and hip disarticulation, and fourth-degree burns, crush injuries, during a physical examination (for example, which involves amputation of an entire lower craniofacial injuries, avulsive injuries, and subluxation or contracture), or is present on extremity through the hip joint capsule and amputations with complications of the imaging (for example, joint space narrowing, closure of the remaining musculature over residual limb(s). bony destruction, ankylosis, or deformity). the exposed acetabular bone. If you have had d. We evaluate skeletal spine abnormalities b. A functional abnormality is abnormal a hemipelvectomy or hip disarticulation, or injuries under 1.15 or 1.16, as appropriate. motion or instability of the affected joint(s), your impairment satisfies the duration We evaluate abnormalities or injuries of including limitation of motion, excessive requirement in §§ 404.1509 and 416.909 of bones in the lower extremities under 1.17, motion (hypermobility), movement outside this chapter. 1.18, or 1.22. We evaluate abnormalities or the normal plane of motion for the joint (for 4. Amputation of one upper extremity and injuries of bones in the upper extremities example, lateral deviation), or fixation of the one lower extremity (1.20C). Under 1.20C, we under 1.18 or 1.23. affected joint(s). consider the amputation of one upper 2. Documentation. In addition to the 2. Major joint of an upper extremity refers extremity at any level at or above the wrist objective medical evidence we need to to the shoulder, elbow, and wrist-hand. We and one lower extremity at or above the establish your soft tissue injury or consider the wrist and hand together as one ankle. If you have a documented medical abnormality, we also need all of the major joint. need for a one-handed, hand-held assistive following medically documented evidence 3. Major joint of a lower extremity refers to device (such as a cane) or a wheeled and about your continuing surgical management: the hip, knee, and ankle-foot. We consider seated mobility device involving the use of a. Operative reports and related laboratory the ankle and hindfoot together as one major one hand (such as a motorized wheelchair), findings; joint. then you must use your remaining upper b. Records of post-surgical procedures; J. What do we consider when we evaluate extremity to hold the device, making the c. Records of any surgical or medical pathologic fractures due to any cause (1.19)? extremity unavailable to perform other fine complications (for example, related We consider pathologic fractures of the bones and gross movements (see 1.00E4). infections or systemic illnesses);

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d. Records of any prolonged post-operative usually established when a minimum of 9 criteria of one of the musculoskeletal recovery periods and related treatments (for months has elapsed since the injury and the disorders listings, we will follow the rules example, surgeries and treatments for burns); fracture site has shown no, or minimal, described in 1.00S. e. An acceptable medical source’s plans for progressive signs of healing for a minimum Q. How do we consider the effects of additional surgeries; and of 3 months. obesity when we evaluate your f. Records detailing any other factors that 2. Complex fracture. A complex fracture is musculoskeletal disorder? Obesity is a have delayed, or that an acceptable medical a fracture with one or more of the following: medically determinable impairment that is source expects to delay, the saving, restoring, a. Comminuted (broken into many pieces) often associated with musculoskeletal or replacing of the involved part for a bone fragments; disorders. Obesity increases stress on weight- continuous period of at least 12 months b. Multiple fractures in a single bone; bearing joints and may contribute to following the initiation of the surgical c. Bone loss due to severe trauma; limitation of the range of motion of the management. d. Damage to the surrounding soft tissue; skeletal spine and extremities. The combined 3. Burns. Third- and fourth-degree burns e. Severe cartilage damage to the associated effects of obesity with a musculoskeletal damage or destroy nerve tissue, reducing or joint; or disorder can be greater than the effects of preventing transmission of signals through f. Dislocation of the associated joint. each of the impairments considered those nerves. Such burns frequently require 3. When a complex fracture involves soft separately. We consider the additional and multiple surgical procedures and related tissue damage, the treatment may involve cumulative effects of your obesity when we therapies to re-establish or improve function, continuing surgical management to restore or determine whether you have a severe which we evaluate under 1.21. When burns improve functioning. In such cases, we may musculoskeletal disorder, a listing-level are no longer under continuing surgical evaluate the fracture(s) under 1.21. musculoskeletal disorder, a combination of management (see 1.00O1), we evaluate the O. How will we determine whether your impairments that medically equals the residual impairment(s). When the residual soft tissue injury or abnormality or your severity of a listed impairment, and when we impairment(s) affects the musculoskeletal upper extremity fracture is no longer under assess your residual functional capacity. system, as often occurs in third- and fourth- continuing surgical management or you have R. How do we evaluate your degree burns, it can result in permanent received maximum benefit from therapy? musculoskeletal disorder if there is evidence musculoskeletal tissue loss, joint 1. We will determine that your soft tissue establishing a substance use disorder? If we contractures, or loss of extremities. We will injury or abnormality, or your upper find that you are disabled and there is evaluate such impairments under the extremity fracture, is no longer under medical evidence in your case record relevant musculoskeletal disorders listing, for continuing surgical management, as used in establishing that you have a substance use example, 1.18 or 1.20. When the residual 1.21 and 1.23, when the last surgical disorder, we will determine whether your impairment(s) involves another body system, procedure or medical treatment directed substance use disorder is a contributing we will evaluate the impairment(s) under the toward the re-establishment or improvement factor material to the determination of listings in the relevant body system(s). of function of the involved part has occurred. disability. See §§ 404.1535 and 416.935 of 4. Craniofacial injuries. Surgeons may treat 2. We will determine that you have this chapter. craniofacial injuries with multiple surgical received maximum benefit from therapy, as S. How do we evaluate musculoskeletal procedures. These injuries may affect vision, used in 1.21, if there are no significant disorders that do not meet one of these hearing, speech, and the initiation of the changes in physical findings or on listings? digestive process, including mastication. appropriate imaging for any 6-month period 1. These listings are only examples of When the craniofacial injury-related residual after the last surgical procedure or medical musculoskeletal disorders that we consider impairment(s) involves another body treatment. We may also determine that you severe enough to prevent you from doing any system(s), we will evaluate the impairment(s) have received maximum benefit from therapy gainful activity. If your impairment(s) does under the listings in the relevant body if your medical source(s) indicates that not meet the criteria of any of these listings, system(s). further improvement is not expected after the we must also consider whether you have an M. What do we consider when we evaluate last surgical procedure or medical treatment. impairment(s) that meets the criteria of a non-healing or complex fractures of the 3. When you have received maximum listing in another body system. femur, tibia, pelvis, or one or more of the benefit from therapy, we will evaluate any 2. If you have a severe medically talocrural bones (1.22)? impairment-related residual symptoms, determinable impairment(s) that does not 1. Non-healing fracture. A non-healing signs, and laboratory findings (including meet a listing, we will determine whether (nonunion) fracture is a fracture that has those on imaging), any complications your impairment(s) medically equals a failed to unite completely. Nonunion is associated with your surgical procedures or listing. See §§ 404.1526 and 416.926 of this usually established when a minimum of 9 medical treatments, and any residual chapter. If your impairment(s) does not meet months has elapsed since the injury and the limitations in your functioning (see 1.00S). or medically equal a listing, you may or may fracture site has shown no, or minimal, P. How do we evaluate your not have the residual functional capacity to progressive signs of healing for a minimum musculoskeletal disorder if there is no record engage in substantial gainful activity. We of 3 months. of ongoing treatment? proceed to the fourth step and, if necessary, 2. Complex fracture. A complex fracture is 1. Despite having a musculoskeletal the fifth step of the sequential evaluation a fracture with one or more of the following: disorder, you may not have received ongoing process in §§ 404.1520 and 416.920 of this a. Comminuted (broken into many pieces) treatment, may have just begun treatment, chapter. bone fragments; may not have access to prescribed medical 3. We use the rules in §§ 404.1594 and b. Multiple fractures in a single bone; treatment, or may not have an ongoing 416.994 of this chapter, as appropriate, when c. Bone loss due to severe trauma; relationship with the medical community. In we decide whether you continue to be d. Damage to the surrounding soft tissue; any of these situations, you will not have a disabled. e. Severe cartilage damage to the associated longitudinal medical record for us to review 1.01 Category of Impairments, joint; or when we evaluate your disorder and we may Musculoskeletal Disorders f. Dislocation of the associated joint. ask you to attend a consultative examination 3. When a complex fracture involves soft to determine the severity and potential 1.15 Disorders of the skeletal spine tissue damage, the treatment may involve duration of your disorder. See resulting in compromise of a nerve root(s) continuing surgical management to restore or §§ 404.1519a(b) and 416.919a(b) of this (see 1.00F), documented by A, B, C, and D: improve functioning. In such cases, we may chapter. A. Neuro-anatomic (radicular) distribution evaluate the fracture(s) under 1.21. 2. In some instances, we may be able to of one or more of the following symptoms N. What do we consider when we evaluate assess the severity and duration of your consistent with compromise of the affected non-healing or complex fracture of an upper musculoskeletal disorder based on your nerve root(s): extremity (1.23)? medical record and current evidence alone. 1. Pain; or 1. Non-healing fracture. A non-healing If the information in your case record is not 2. Paresthesia; or (nonunion) fracture is a fracture that has sufficient to show that you have a 3. Muscle fatigue. failed to unite completely. Nonunion is musculoskeletal disorder that meets the AND

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B. Radicular distribution of neurological AND upper extremity or a wheeled and seated signs present during physical examination D. Impairment-related physical limitation mobility device involving the use of one (see 1.00C2) or on a diagnostic test (see of musculoskeletal functioning that has hand (see 1.00C6e(ii)); or 1.00C3) and evidenced by 1, 2, and either 3 lasted, or is expected to last, for a continuous 3. An inability to use both upper or 4: period of at least 12 months, and medical extremities to the extent that neither can be 1. Muscle weakness; and documentation of at least one of the used to independently initiate, sustain, and 2. Sign(s) of nerve root irritation, tension, following: complete work-related activities involving or compression, consistent with compromise 1. A documented medical need (see fine and gross movements (see 1.00E4). of the affected nerve root (see 1.00F2); and 1.00C6a) for a walker, bilateral canes, or 1.19 Pathologic fractures due to any 3. Sensory changes evidenced by: bilateral crutches (see 1.00C6d) or a wheeled cause (see 1.00J), documented by A and B: a. Decreased sensation; or and seated mobility device involving the use A. Pathologic fractures occurring on three b. Sensory nerve deficit (abnormal sensory of both hands (see 1.00C6e(i)); or separate occasions within a 12-month period. nerve latency) on electrodiagnostic testing; or 2. An inability to use one upper extremity AND 4. Decreased deep tendon reflexes. to independently initiate, sustain, and B. Impairment-related physical limitation AND complete work-related activities involving of musculoskeletal functioning that has C. Findings on imaging (see 1.00C3) fine and gross movements (see 1.00E4), and lasted, or is expected to last, for a continuous consistent with compromise of a nerve root(s) a documented medical need (see 1.00C6a) for period of at least 12 months, and medical in the cervical or lumbosacral spine. a one-handed, hand-held assistive device (see documentation of at least one of the 1.00C6d) that requires the use of the other AND following: upper extremity or a wheeled and seated 1. A documented medical need (see D. Impairment-related physical limitation mobility device involving the use of one 1.00C6a) for a walker, bilateral canes, or of musculoskeletal functioning that has hand (see 1.00C6e(ii)). bilateral crutches (see 1.00C6d) or a wheeled lasted, or is expected to last, for a continuous 1.17 Reconstructive surgery or surgical and seated mobility device involving the use period of at least 12 months, and medical arthrodesis of a major weight-bearing joint of both hands (see 1.00C6e(i)); or documentation of at least one of the (see 1.00H), documented by A, B, and C: 2. An inability to use one upper extremity following: A. History of reconstructive surgery or to independently initiate, sustain, and 1. A documented medical need (see surgical arthrodesis of a major weight-bearing complete work-related activities involving 1.00C6a) for a walker, bilateral canes, or joint. fine and gross movements (see 1.00E4), and bilateral crutches (see 1.00C6d) or a wheeled AND a documented medical need (see 1.00C6a) for and seated mobility device involving the use B. Impairment-related physical limitation a one-handed, hand-held assistive device (see of both hands (see 1.00C6e(i)); or of musculoskeletal functioning that has 1.00C6d) that requires the use of the other 2. An inability to use one upper extremity lasted, or is expected to last, for a continuous upper extremity or a wheeled and seated to independently initiate, sustain, and period of at least 12 months. mobility device involving the use of one complete work-related activities involving hand (see 1.00C6e(ii)); or fine and gross movements (see 1.00E4), and AND 3. An inability to use both upper a documented medical need (see 1.00C6a) for C. A documented medical need (see extremities to the extent that neither can be a one-handed, hand-held assistive device (see 1.00C6a) for a walker, bilateral canes, or used to independently initiate, sustain, and 1.00C6d) that requires the use of the other bilateral crutches (see 1.00C6d) or a wheeled complete work-related activities involving upper extremity or a wheeled and seated and seated mobility device involving the use fine and gross movements (see 1.00E4). mobility device involving the use of one of both hands (see 1.00C6e(i)). 1.20 Amputation due to any cause (see hand (see 1.00C6e(ii)); or 1.18 Abnormality of a major joint(s) in 1.00K), documented by A, B, C, or D: 3. An inability to use both upper any extremity (see 1.00I), documented by A, A. Amputation of both upper extremities, extremities to the extent that neither can be B, C, and D: occurring at any level at or above the wrists used to independently initiate, sustain, and A. Chronic joint pain or stiffness. (carpal joints), up to and including the complete work-related activities involving AND shoulder (glenohumeral) joint. fine and gross movements (see 1.00E4). B. Abnormal motion, instability, or 1.16 Lumbar spinal stenosis resulting in immobility of the affected joint(s). OR compromise of the cauda equina (see 1.00G), AND B. Hemipelvectomy or hip disarticulation. documented by A, B, C, and D: C. Anatomical abnormality of the affected OR A. Symptom(s) of neurological compromise C. Amputation of one upper extremity, manifested as: joint(s) noted on: 1. Physical examination (for example, occurring at any level at or above the wrist 1. Nonradicular distribution of pain in one subluxation, contracture, or bony or fibrous (carpal joints), and amputation of one lower or both lower extremities; or ankylosis); or extremity, occurring at or above the ankle 2. Nonradicular distribution of sensory loss 2. Imaging (for example, joint space (talocrural joint), and medical documentation in one or both lower extremities; or narrowing, bony destruction, or ankylosis or of at least one of the following: 3. Neurogenic claudication. arthrodesis of the affected joint). 1. A documented medical need (see AND AND 1.00C6a) for a walker, bilateral canes, or B. Nonradicular neurological signs present bilateral crutches (see 1.00C6d) or a wheeled D. Impairment-related physical limitation during physical examination (see 1.00C2) or and seated mobility device involving the use of musculoskeletal functioning that has of both hands (see 1.00C6e(i)); or on a diagnostic test (see 1.00C3) and lasted, or is expected to last, for a continuous 2. A documented medical need (see evidenced by 1 and either 2 or 3: period of at least 12 months, and medical 1. Muscle weakness. documentation of at least one of the 1.00C6a) for a one-handed, hand-held 2. Sensory changes evidenced by: following: assistive device (see 1.00C6d) requiring the a. Decreased sensation; or 1. A documented medical need (see use of the other upper extremity or a wheeled b. Sensory nerve deficit (abnormal sensory 1.00C6a) for a walker, bilateral canes, or and seated mobility device involving the use nerve latency) on electrodiagnostic testing; or bilateral crutches (see 1.00C6d) or a wheeled of one hand (see 1.00C6e(ii)); or c. Areflexia, trophic ulceration, or bladder and seated mobility device involving the use 3. The inability to use the remaining upper or bowel incontinence. of both hands (see 1.00C6e(i)); or extremity to independently initiate, sustain, 3. Decreased deep tendon reflexes in one 2. An inability to use one upper extremity and complete work-related activities or both lower extremities. to independently initiate, sustain, and involving fine and gross movements (1.00E4). AND complete work-related activities involving OR C. Findings on imaging (see 1.00C3) or in fine and gross movements (see 1.00E4), and D. Amputation of one or both lower an operative report (see 1.00C4) consistent a documented medical need (see 1.00C6a) for extremities, occurring at or above the ankle with compromise of the cauda equina with a one-handed, hand-held assistive device (see (talocrural joint), with complications of the lumbar spinal stenosis. 1.00C6d) that requires the use of the other residual limb(s) that have lasted, or are

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expected to last, for a continuous period of 1.18. If no listing is met or medically though you might not require bilateral upper at least 12 months, and medical equaled, we will evaluate any functional limb assistance. documentation of 1 and 2: limitations imposed by your lymphedema (ii) Listing-level severity in 14.09B, 1. The inability to use a prosthesis(es); and when we assess your residual functional 14.09C2, and 14.09D is shown by 2. A documented medical need (see capacity. inflammatory arthritis that involves various 1.00C6a) for a walker, bilateral canes, or * * * * * combinations of complications (such as bilateral crutches (see 1.00C6d) or a wheeled inflammation or deformity, extra-articular and seated mobility device involving the use 14.00 Immune System Disorders features, repeated manifestations, and of both hands (see 1.00C6e(i)). * * * * * constitutional symptoms and signs) of one or 1.21 Soft tissue injury or abnormality C. Definitions more major joints in an upper or a lower under continuing surgical management (see extremity (see 14.00C8) or other joints. Extra- 1.00L), documented by A, B, and C: * * * * * 6. Documented medical need has the same articular impairments may also meet listings A. Evidence confirms continuing surgical in other body systems. management (see 1.00O1) directed toward meaning as in 1.00C6a. saving, reconstructing, or replacing the 7. Fine and gross movements has the same * * * * * affected part of the body. meaning as in 1.00E4. 8. Major joint of an upper or a lower 14.01 Category of Impairments, Immune AND extremity has the same meaning as in 1.00I2 System Disorders B. The surgical management has been, or and 1.00I3. * * * * * is expected to be, ongoing for a continuous * * * * * 14.04 Systemic sclerosis (scleroderma). period of at least 12 months. 12. Severe means medical severity as used As described in 14.00D3. With: AND by the medical community. The term does * * * * * C. Maximum benefit from therapy (see not have the same meaning as it does when B. One of the following: 1.00O2) has not yet been achieved. we use it in connection with a finding at the 1. Toe contractures or fixed deformity of 1.22 Non-healing or complex fracture of second step of the sequential evaluation one or both feet and medical documentation the femur, tibia, pelvis, or one or more of the process in §§ 404.1520 and 416.920 of this of at least one of the following: talocrural bones (see 1.00M), documented by chapter. a. A documented medical need (see A, B, and C: D. How do we document and evaluate the 14.00C6) for a walker, bilateral canes, or A. Solid union not evident on imaging (see listed autoimmune disorders? bilateral crutches (see 1.00C6d) or a wheeled 1.00C3) and not clinically solid. * * * * * and seated mobility device involving the use AND 4. Polymyositis and dermatomyositis of both hands (see 1.00C6e(i)); or B. Impairment-related physical limitation (14.05). b. An inability to use one upper extremity of musculoskeletal functioning that has * * * * * to independently initiate, sustain, and lasted, or is expected to last, for a continuous c. * * * complete work-related activities involving period of at least 12 months. (i) Weakness of your pelvic girdle muscles fine and gross movements (see 14.00C7), and AND that results in your inability to rise a documented medical need (see 14.00C6) for C. A documented medical need (see independently from a squatting or sitting a one-handed, hand-held assistive device (see 1.00C6a) for a walker, bilateral canes, or position or to climb stairs may be an 1.00C6d) that requires the use of the other bilateral crutches (see 1.00C6d) or a wheeled indication that you are unable to walk upper extremity or a wheeled and seated and seated mobility device involving the use without assistance. Weakness of your mobility device involving the use of one of both hands (see 1.00C6e(i)). shoulder girdle muscles may result in your hand (see 1.00C6e(ii)); or 1.23 Non-healing or complex fracture of inability to perform lifting, carrying, and 2. Finger contractures or fixed deformity in an upper extremity (see 1.00N), documented reaching overhead, and also may seriously both hands and medical documentation of an by A and B: affect your ability to perform activities inability to use both upper extremities to the A. Nonunion or complex fracture of the requiring fine movements. We evaluate these extent that neither can be used to shaft of the humerus, radius, or ulna, under limitations under 14.05A. independently initiate, sustain, and complete continuing surgical management (see 1.00O1) * * * * * work-related activities involving fine and directed toward restoration of functional use 6. * * * gross movements (see 14.00C7); or of the extremity. a. General. The spectrum of inflammatory 3. Atrophy with irreversible damage in one AND arthritis includes a vast array of disorders or both lower extremities and medical B. Medical documentation of an inability that differ in cause, course, and outcome. documentation of at least one of the to independently initiate, sustain, and Clinically, inflammation of major joints in an following: complete work-related activities involving upper or a lower extremity may be the a. A documented medical need (see fine and gross movements (see 1.00E4) that dominant manifestation causing difficulties 14.00C6) for a walker, bilateral canes, or has lasted, or is expected to last, for a with walking or fine and gross movements; bilateral crutches (see 1.00C6d) or a wheeled continuous period of at least 12 months. there may be joint pain, swelling, and and seated mobility device involving the use tenderness. The arthritis may affect other of both hands (see 1.00C6e(i)); or * * * * * joints, or cause less limitation in walking or b. An inability to use one upper extremity 4.00 Cardiovascular System fine and gross movements. However, in to independently initiate, sustain, and combination with extra-articular features, * * * * * complete work-related activities involving including constitutional symptoms or signs fine and gross movements (see 14.00C7), and G. Evaluating Peripheral Vascular Disease (severe fatigue, fever, malaise, and a documented medical need (see 14.00C6) for * * * * * involuntary weight loss), inflammatory a one-handed, hand-held assistive device (see 4. What is lymphedema and how will we arthritis may result in an extreme limitation. 1.00C6d) that requires the use of the other evaluate it? * * * * * upper extremity or a wheeled and seated * * * * * e. * * * mobility device involving the use of one b. Lymphedema does not meet the (i) Listing-level severity in 14.09A and hand (see 1.00C6e(ii)); or requirements of 4.11, although it may 14.09C1 is shown by the presence of an 4. Atrophy with irreversible damage in medically equal the severity of that listing. impairment-related physical limitation of both upper extremities and medical We will evaluate lymphedema by functioning. In 14.09C1, if you have the documentation of an inability to use both considering whether the underlying cause required ankylosis (fixation) of your cervical upper extremities to the extent that neither meets or medically equals any listing or or dorsolumbar spine, we will find that you can be used to independently initiate, whether the lymphedema medically equals a have a listing-level impairment-related sustain, and complete work-related activities cardiovascular listing, such as 4.11, or a physical limitation in your ability to see in involving fine and gross movements (see musculoskeletal disorders listing, such as front of you, above you, and to the side, even 14.00C7); or

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C. Raynaud’s phenomenon, characterized mobility device involving the use of one 5. We evaluate the leg pain associated with by: hand (see 1.00C6e(ii)); or peripheral vascular claudication under the * * * * * 2. One or more major joints in each upper listings in 104.00. 2. Ischemia with ulcerations of toes or extremity (see 14.00C8) and medical 6. We evaluate burns that do not require fingers and medical documentation of at least documentation of an inability to use both continuing surgical management under the one of the following: upper extremities to the extent that neither listings in 108.00. a. A documented medical need (see can be used to independently initiate, C. What evidence do we need to evaluate sustain, and complete work-related activities 14.00C6) for a walker, bilateral canes, or your musculoskeletal disorder? involving fine and gross movements (see bilateral crutches (see 1.00C6d) or a wheeled 1. General. We need objective medical 14.00C7); or and seated mobility device involving the use evidence from an acceptable medical source of both hands (see 1.00C6e(i)); or B. Inflammation or deformity in one or more major joints of an upper or a lower to establish that you have a medically b. An inability to use one upper extremity determinable musculoskeletal disorder. We to independently initiate, sustain, and extremity (see 14.00C8) with: also need evidence from both medical and complete work-related activities involving * * * * * nonmedical sources, who can describe how fine and gross movements (see 14.00C7), and a documented medical need (see 14.00C6) for Part B you function, to assess the severity and a one-handed, hand-held assistive device (see * * * * * duration of your musculoskeletal disorder. 1.00C6d) that requires the use of the other We will determine the extent and kinds of 101.00 Musculoskeletal Disorders upper extremity or a wheeled and seated evidence we need from medical and mobility device involving the use of one * * * * * nonmedical sources based on the individual hand (see 1.00C6e(ii)); or 101.00 Musculoskeletal Disorders facts about your disorder. For our basic rules c. An inability to use both upper on evidence, see §§ 416.912, 416.913, and extremities to the extent that neither can be A. Which musculoskeletal disorders do we 416.920b of this chapter. For our rules on used to independently initiate, sustain, and evaluate under these listings? evidence about your symptoms, see § 416.929 1. We evaluate disorders of the skeletal complete work-related activities involving of this chapter. spine (vertebral column) or of the upper or fine and gross movements (see 14.00C7); or 2. Physical examination report(s). In the lower extremities that affect musculoskeletal * * * * * functioning under these listings. We use the report(s) of your physical examination, we 14.05 Polymyositis and dermatomyositis. term ‘‘skeletal’’ when we are referring to the require a medical source’s detailed As described in 14.00D4. With: structure of the bony skeleton. The skeletal description of the orthopedic, neurologic, or A. Proximal limb-girdle (pelvic or spine refers to the bony structures, ligaments, other objective clinical findings appropriate shoulder) muscle weakness and medical and discs making up the spine. We refer to to your specific musculoskeletal disorder documentation of at least one of the the skeletal spine in some musculoskeletal from his or her direct observations during following: listings to differentiate it from the your physical examination. We will not 1. A documented medical need (see neurological spine (see 101.00B1). accept a report of your statements about your 14.00C6) for a walker, bilateral canes, or Musculoskeletal disorders may be congenital symptoms and limitations in place of the bilateral crutches (see 1.00C6d) or a wheeled or acquired, and may include deformities, medical source’s report of objective clinical and seated mobility device involving the use amputations, or other abnormalities. These findings. We will not use findings on imaging of both hands (see 1.00C6e(i)); or disorders may involve the bones or major or other diagnostic tests (see 101.00C3) as a 2. An inability to use one upper extremity joints; or the tendons, ligaments, muscles, or to independently initiate, sustain, and substitute for findings on physical other soft tissues. examination. complete work-related activities involving 2. We evaluate soft tissue injuries fine and gross movements (see 14.00C7), and a. When the medical source reports that a (including burns) or abnormalities that are clinical test sign(s) is positive, unless we a documented medical need (see 14.00C6) for under continuing surgical management (see have evidence to the contrary, we will a one-handed, hand-held assistive device (see 101.00P1). The injuries or abnormalities may assume that he or she performed the test 1.00C6d) that requires the use of the other affect any part of the body, including the face upper extremity or a wheeled and seated and skull. properly and accept the medical source’s mobility device involving the use of one 3. We evaluate curvatures of the skeletal interpretation of the test. For example, we hand (see 1.00C6e(ii)); or spine that affect musculoskeletal functioning will assume a straight-leg raising test was 3. An inability to use both upper under 101.15. If a curvature of the skeletal conducted properly (that is, in sitting and extremities to the extent that neither can be spine is under continuing surgical supine positions), even if the medical source used to independently initiate, sustain, and management (see 101.00P1), we will evaluate does not specify the positions in which the complete work-related activities involving it under 101.21 using our rules for test was performed. fine and gross movements (see 14.00C7); or determining medical equivalence. See b. If you use an assistive device (see * * * * * § 416.926 of this chapter. 101.00C6), the report must support the 14.09 Inflammatory arthritis. As B. Which related disorders do we evaluate medical need for the device. described in 14.00D6. With: under other listings? c. If your musculoskeletal disorder causes A. Persistent inflammation or persistent 1. We evaluate a disorder or injury of the a reduction in muscle strength, the report deformity of: skeletal spine that results in damage to, and must document measurement of the strength 1. One or more major joints in a lower neurological dysfunction of, the spinal cord of the muscle(s) in question. The extremity (see 14.00C8) and medical and its associated nerves (for example, measurement should be based on a muscle documentation of at least one of the paraplegia or quadriplegia) under the listings strength grading system that is considered following: in 111.00. medically acceptable based on your age and a. A documented medical need (see 2. We evaluate inflammatory arthritis (for impairments. For example, a grading system 14.00C6) for a walker, bilateral canes, or example, rheumatoid arthritis) under the of 0 to 5, with 0 indicating complete loss of bilateral crutches (see 1.00C6d) or a wheeled listings in 114.00. and seated mobility device involving the use 3. We evaluate curvatures of the skeletal strength and 5 indicating maximum strength of both hands (see 1.00C6e(i)); or spine that interfere with your ability to or equivalent medically acceptable scale (see b. An inability to use one upper extremity breathe under the listings in 103.00, impair Table 1). Reduction in muscle strength is to independently initiate, sustain, and myocardial function under the listings in demonstrated by evidence that your muscle complete work-related activities involving 104.00, or result in social withdrawal or strength is less than active range of motion fine and gross movements (see 14.00C7), and depression under the listings in 112.00. (ROM) against gravity with maximum a documented medical need (see 14.00C6) for 4. We evaluate non-healing or pathological resistance. If the reduction in muscle strength a one-handed, hand-held assistive device (see fractures due to cancer, whether it is a involves one or both of your hands, the 1.00C6d) that requires the use of the other primary site or metastases, under the listings report must also document measurements of upper extremity or a wheeled and seated in 113.00. grip and pinch strength.

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TABLE 1—GRADING SYSTEM OF MUSCLE FUNCTION

Grade Function of the muscle

0—None ...... No visible or palpable contraction. 1—Trace ...... Visible or palpable contraction with no motion. 2—Poor ...... Active ROM with gravity eliminated. 3—Fair ...... Active ROM against gravity only, without resistance. 4—Good ...... Active ROM against gravity, moderate resistance. 5—Normal ...... Active ROM against gravity, maximum resistance.

3. Imaging and other diagnostic tests. future functioning. We will determine the hand(s) to support or aid you in walking. a. Imaging refers to medical imaging amount of time that constitutes a sufficient When you use a one-handed, hand-held techniques, such as x-ray, computed period in consultation with a medical assistive device (such as a cane) with one tomography (CT), magnetic resonance consultant on a case by case basis. In some upper extremity to walk and you cannot use imaging (MRI), and radionuclide scanning. cases, we will need additional evidence to your other upper extremity for fine or gross For the purpose of these listings, the imaging make an assessment about your response to movements (see 101.00E4), the need for the must be consistent with the prevailing state treatment. Your musculoskeletal disorder assistive device limits the use of both upper of medical knowledge and clinical practice as may meet or medically equal one of these extremities. If you use a hand-held assistive the proper technique to support the listings regardless of whether you were device, we need evidence from a medical evaluation of the disorder. prescribed opioid medication, or whether source describing how you walk with the b. Findings on imaging must have lasted, you were prescribed opioid medication and device. or be expected to last, for a continuous did not follow this prescribed treatment. e. Wheeled and seated mobility devices. period of at least 12 months. 6. Assistive devices. Wheeled and seated mobility devices are c. Imaging and other diagnostic tests can a. General. An assistive device, for the assistive devices that you use in a seated provide evidence of physical abnormalities; purposes of these listings, is any device that position, such as manual wheelchairs, however, these abnormalities may correlate you use to improve your stability, dexterity, motorized wheelchairs, rollators, and power poorly with your symptoms, including pain, or mobility. An assistive device can be worn operated vehicles. If you use a wheeled and or with your musculoskeletal functioning. (see 101.00C6b and 101.00C6c), hand-held seated mobility device, we need evidence Accordingly, we will not use findings on (see 101.00C6d), or used in a seated position from a medical source describing the type of imaging or other diagnostic tests as a (see 101.00C6e). When we use the phrase wheeled and seated mobility device that you substitute for findings on physical ‘‘documented medical need,’’ we mean that use and how you use the assistive device, examination about your ability to function, there is evidence from a medical source that including any customizations or nor can we infer severity or functional supports your medical need for an assistive modifications to the assistive device itself or limitations based solely on such tests. device (see 101.00C2b) for a continuous for your use of the assistive device. For d. For our rules on purchasing imaging and period of at least 12 months (see 101.00c2a). example, if you use a wheelchair that other diagnostic tests, see §§ 416.919k and This evidence must describe any limitation(s) typically requires the use of both hands but 416.919m of this chapter. in your upper or lower extremity functioning has been customized for your use with one 4. Operative reports. If you have had a and the circumstances for which you need to hand, then we will evaluate your use of the surgical procedure, we need a copy of the use the assistive device. We do not require assistive device using the criteria in operative report, including details of the that you have a specific prescription for the 101.00E3b and not 101.00E3a. findings at surgery and information about assistive device. (i) Wheeled and seated mobility devices any medical complications that may have b. Prosthesis(es). A prosthesis is a wearable involving the use of both hands. Some occurred. If we do not have the operative device, such as an artificial limb, that takes wheeled and seated mobility devices involve report, we need confirmatory evidence of the the place of an absent body part. If you have the use of both hands to use the assistive surgical procedure from a medical source (for a prosthesis(es), we need evidence from a device (for example, most manual example, detailed follow-up reports or medical source documenting your ability to wheelchairs). If you use a wheeled and notations in the medical records concerning walk, or perform fine and gross movements seated mobility device that involves the use the surgical procedure in your medical (see 101.00E4), with the prosthesis(es) in of both hands, then the need for the assistive history). place. When amputation(s) involves one or device limits the use of both upper 5. Effects of treatment. both lower extremities, it is not necessary for extremities. a. General. Treatments for musculoskeletal the medical source to evaluate your ability to (ii) Wheeled and seated devices involving disorders may have beneficial or adverse walk without the prosthesis(es) in place. If the use of one hand. Some wheeled and effects, and responses to treatment vary from you cannot use your prosthesis(es) due to seated mobility devices involve the use of person to person. We will evaluate all of the complications affecting your residual limb(s), one hand to use the assistive device (for effects of treatment (including surgical we need evidence from a medical source example, most motorized wheelchairs). If you treatment, medications, and therapy) on the documenting the condition of your residual use a wheeled and seated mobility device symptoms, signs, and laboratory findings of limb(s) and the medical basis for your that involves the use of one upper extremity your musculoskeletal disorder, and on your inability to use the device(s). and you cannot use your other upper musculoskeletal functioning. c. Orthosis(es). An orthosis is a wearable extremity for fine or gross movements (see b. Response to treatment. To evaluate your device, such as a brace, that prevents or 101.00E4), then the need for the assistive musculoskeletal functioning in response to corrects a dysfunction or deformity by device limits the use of both upper treatment, we need the following: A aligning or supporting the affected body part. extremities. description, including the frequency of the If you have an orthosis(es), we need evidence 7. Longitudinal evidence. administration, of your medications; the type from a medical source documenting your a. We generally need a longitudinal and frequency of therapy you receive; and a ability to walk, or perform fine and gross medical record to assess the severity and description of your response to treatment and movements (see 101.00E4), with the duration of your musculoskeletal disorder any complications you experience related to orthosis(es) in place. If you cannot use your because the severity of symptoms, signs, and your musculoskeletal disorder. The effects of orthosis(es), we need evidence from a laboratory findings related to most treatment may be temporary or long-term. We medical source documenting the medical musculoskeletal disorders may improve over need information over a sufficient period to basis for your inability to use the device(s). time or respond to treatment. Evidence over determine the effects of treatment on your d. Hand-held assistive devices. Hand-held an extended period will show whether your current musculoskeletal functioning and assistive devices include walkers, canes, or musculoskeletal functioning is improving, permit reasonable projections about your crutches, which you hold onto with your worsening, or unchanging.

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b. For 101.15, 101.16, 101.17, 101.18, that we have to compare your compromise nerve roots of the cervical spine, 101.20C, 101.20D, 101.22, and 101.23, all of musculoskeletal functioning to the a nerve root of the lumbar spine, or a nerve the required criteria must be present functioning of children your age who do not root of both cervical and lumbar spines. We simultaneously, or within a close proximity have impairments. The required impairment- consider spinal nerve disorders that originate of time, to satisfy the level of severity needed related physical limitation of in the nervous system (for example, spinal to meet the listing. The phrase ‘‘within a musculoskeletal functioning must have arachnoiditis), under the neurological close proximity of time’’ means that all of the lasted, or be expected to last, for a disorders body system, 111.00. relevant criteria must appear in the medical continuous period of at least 12 months. We 2. Compromise of a nerve root(s). record within a consecutive 4-month period. do not use the functional criteria in 101.20A, Compromise of a nerve root, sometimes When the criterion is imaging, we mean that 101.20B, 101.21, or 101.24. referred to as ‘‘nerve root impingement,’’ is we could reasonably expect the findings on 2. Medical and functional criteria, birth to a phrase used when a physical object, such imaging to have been present at the date of attainment of age 3. The medical and as a tumor, herniated disc, foreign body, or impairment or date of onset. For listings that functional criteria for children in this age arthritic spur, is pushing on the nerve root use the word ‘‘and’’ to link the elements of group are in 101.24. as seen on imaging or during surgery. It can the required criteria, the medical record must 3. Functional criteria, age 3 to attainment occur when a musculoskeletal disorder establish the simultaneous presence, or of age 18. The functional criteria are based produces irritation, inflammation, or presence within a close proximity of time, of on impairment-related physical limitations in compression of the nerve root(s) as it exits all the required medical criteria. Once this your ability to use both upper extremities, the skeletal spine between the vertebrae. level of severity is established, the medical one or both lower extremities, or a Related symptoms must be associated with, record must also show that this level of combination of one upper and one lower or follow the path of, the affected nerve severity has continued, or is expected to extremity. A musculoskeletal disorder root(s). continue, for a continuous period of at least satisfies the functional criteria of a listing a. Compromise of unilateral nerve root of 12 months. when the medical documentation shows the the cervical spine. Compromise of a nerve 8. Surgical treatment or physical therapy. presence of at least one of the impairment- root as it exits the cervical spine between the For some musculoskeletal disorders, a related limitations cited in the listing. The vertebrae may affect the functioning of the medical source may recommend surgery, or functional criteria require impairment-related associated upper extremity. The physical physical therapy (PT). If you have not yet had physical limitation of musculoskeletal examination reproduces the related the recommended surgery or PT, we will not functioning that has lasted, or can be symptoms based on radicular signs and assume that these interventions will resolve expected to last, for a continuous period of clinical tests appropriate to the specific your disorder or improve your functioning. at least 12 months, medically documented by cervical nerve root (for example, a positive We will assess each case on an individual one of the following: Spurling test). basis. Depending on your response to a. A documented medical need (see b. Compromise of bilateral nerve roots of treatment, or your medical sources’ treatment 101.00C6a) for a walker, bilateral canes, or the cervical spine. Although uncommon, if plans, we may defer our findings regarding bilateral crutches (see 101.00C6d) or a compromise of a nerve root occurs on both the effect of surgery or PT, until a sufficient wheeled and seated mobility device sides of the cervical spinal column, period has passed to permit proper involving the use of both hands (see functioning of both upper extremities may be consideration or judgment about your future 101.00C6e(i)); limited. functioning. When necessary, we will follow b. An inability to use one upper extremity c. Compromise of a nerve root(s) of the the rules on following prescribed treatment to independently initiate, sustain, and lumbar spine. Compromise of a nerve root as in § 416.930 of this chapter, including complete age-appropriate activities involving it exits the lumbar spine between the consideration of your reasons for failure to fine and gross movements (see 101.00E4), vertebrae may limit the functioning of the follow prescribed treatment. and a documented medical need (see associated lower extremity. The physical D. How do we consider symptoms, 101.00C6a) for a one-handed, hand-held examination reproduces the related including pain, under these listings? assistive device (see 101.00C6d) that requires symptoms based on radicular signs and 1. Musculoskeletal disorders may cause the use of your other upper extremity or a clinical tests. When a nerve root of the pain or other symptoms; however, your wheeled and seated mobility device lumbar spine is compromised, we require a statements about your pain or other involving the use of one hand (see positive straight-leg raising test (also known symptoms will not alone establish that you 101.00C6e(ii)); as a Lase`gue test) in both supine and sitting are disabled. We will not substitute an c. An inability to use both upper positions appropriate to the specific lumbar alleged or a reported increase in the intensity extremities to the extent that neither can be nerve root that is compromised. of a symptom, such as pain, no matter how used to independently initiate, sustain, and G. What do we consider when we evaluate severe, for a medical sign or diagnostic complete age-appropriate activities involving lumbar spinal stenosis resulting in finding present in the listing criteria. Pain is fine and gross movements (see 101.00E4). compromise of the cauda equina (101.16)? included as just one consideration in 4. Fine and gross movements. Fine 1. General. We consider how pain, sensory 101.15A, 101.16A, and 101.18A, but it is not movements, for the purposes of these listings, changes, and muscle weakness caused by required to satisfy the criteria in 101.15, involve use of your wrists, hands, and compromise of the cauda equina due to 101.16, and 101.18. fingers; such movements include picking, lumbar spinal stenosis affect your 2. To consider your symptom(s), we pinching, manipulating, and fingering. Gross functioning. The cauda equina is a bundle of require objective medical evidence from an movements involve use of your shoulders, nerve roots that descends from the lower part acceptable medical source showing the upper arms, forearms, and hands; such of the spinal cord. Lumbar spinal stenosis existence of a medically determinable movements include handling, gripping, can compress the nerves of the cauda equina, musculoskeletal impairment that we could grasping, holding, turning, and reaching. causing sensory changes and muscle reasonably expect to produce the Gross movements also include exertional weakness that may affect your ability to stand symptom(s). See § 416.929 of this chapter for abilities such as lifting, carrying, pushing, or walk. Pain related to compromise of the how we evaluate symptoms, including pain, and pulling. cauda equina is nonradicular because it is related to your musculoskeletal disorder. F. What do we consider when we evaluate not typically associated with a specific nerve E. How do we use the functional criteria to disorders of the skeletal spine resulting in root (as is radicular pain in the cervical or evaluate your musculoskeletal disorder compromise of a nerve root(s) (101.15)? lumbar spine). under these listings? 1. General. We consider musculoskeletal 2. Compromise of the cauda equina due to 1. General. The functional criteria for disorders such as skeletal dysplasias, caudal lumbar spinal stenosis can affect your ability children age 3 and older are based on regression syndrome, tethered spinal cord to walk or stand because of neurogenic impairment-related physical limitations in syndrome, vertebral slippage claudication (also known as your ability to use both upper extremities, (spondylolisthesis), scoliosis, and vertebral pseudoclaudication), a condition usually one or both lower extremities, or a fracture or dislocation. Spinal disorders may causing nonradicular pain that starts in the combination of one upper and one lower cause cervical or lumbar spine dysfunction low back and radiates bilaterally (or less extremity. We will use the relevant evidence when abnormalities of the skeletal spine commonly, unilaterally) into the buttocks

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and lower extremities (or extremity). imperfecta or any other skeletal dysplasias, condition of your residual limb(s), whether Extension of the lumbar spine, which occurs side effects of medications, and disorders of you can wear a prosthesis(es) (see when you walk or stand, may provoke the the endocrine or other body systems. Under 101.00C6b), and whether you have a pain of neurogenic claudication. The pain 101.19, the fractures must have occurred on documented medical need (see 101.00C6a) may be relieved by forward flexion of the separate, distinct occasions, rather than for a hand-held assistive device(s) (see lumbar spine or by sitting. In contrast, the leg multiple fractures occurring at the same time, 101.00C6d) or a wheeled and seated mobility pain associated with peripheral vascular but the fractures may affect the same bone(s) device (see 101.00C6e). If you have a non- claudication results from inadequate arterial multiple times. There is no required time that healing residual limb(s) and are receiving blood flow to a lower extremity. It occurs must elapse between the fractures, but all ongoing surgical treatment expected to re- repeatedly and consistently when a person three must occur within a 12-month period; establish or improve function, and that walks a certain distance and is relieved when for example, separate incidents may occur ongoing surgical treatment has not ended, or the person rests. within hours or days of each other. We is not expected to end, within at least 12 H. What do we consider when we evaluate evaluate non-healing or complex traumatic months of the initiation of the surgical reconstructive surgery or surgical arthrodesis fractures without accompanying pathology management (see 101.00L), we evaluate your of a major weight-bearing joint (101.17)? under 101.22 or 101.23. musculoskeletal disorder under 101.21. 1. General. We consider reconstructive K. What do we consider when we evaluate L. What do we consider when we evaluate surgery or surgical arthrodesis when an amputation due to any cause (101.20)? soft tissue injury or abnormality under acceptable medical source(s) documents the 1. General. We consider amputation (the continuing surgical management (101.21)? surgical procedure(s) and associated medical full or partial loss or absence of any 1. General. treatments to restore function of, or eliminate extremity) due to any cause including a. We consider any soft tissue injury or motion in, the affected major weight-bearing trauma, congenital abnormality or absence, abnormality involving the soft tissues of the joint(s). Reconstructive surgery may be done surgery for treatment of conditions such as body, whether congenital or acquired, when in a single procedure or a series of cancer or infection, or complications of an acceptable medical source(s) documents procedures directed toward the salvage or peripheral vascular disease or diabetes the need for ongoing surgical procedures and restoration of functional use of the affected mellitus. associated medical treatments to restore joint. 2. Amputation of both upper extremities function of the affected body part(s) (see 2. Major weight-bearing joints are the hip, (101.20A). Under 101.20A, we consider 101.00P1). Surgical management includes the knee, and ankle-foot. The ankle and foot are upper extremity amputations that occur at surgery(ies) itself, as well as various post- considered together as one major joint. any level at or above the wrists (carpal surgical procedures, surgical complications, 3. Surgical arthrodesis is the artificial joints), up to and including disarticulation of infections or other medical complications, fusion of the bones that form a joint, the shoulder (glenohumeral) joint. If you related illnesses, or related treatments that essentially eliminating the joint. have had both upper extremities amputated delay your attainment of maximum benefit I. What do we consider when we evaluate at any level at or above the wrists up to and from therapy (see 101.00P2). abnormality of a major joint(s) in any including the shoulder, your impairment b. Surgical procedures and associated extremity (101.18)? satisfies the duration requirement in treatments typically take place over extended 1. General. We consider musculoskeletal § 416.909 of this chapter. For amputations periods, which may render you unable to disorders that produce anatomical below the wrist, we will follow the rules perform age-appropriate activity on a abnormalities of major joints of the described in 101.00R. We do not evaluate sustained basis. To document such inability, extremities, which result in functional amputations below the wrists under 101.20A we must have evidence from an acceptable abnormalities in the upper or lower because the resulting limitation of function of medical source(s) confirming that the extremities (for example, chronic infections the thumb(s), finger(s), or hand(s) will vary, surgical management has continued, or is of bones and joints, and surgical arthrodesis depending on the extent of loss and expected to continue, for at least 12 months of a joint). Abnormalities of the joints include corresponding effect on fine and gross from the date of the first surgical ligamentous laxity or rupture, soft tissue movements. intervention. These procedures and contracture, or tendon rupture, and can cause 3. Hemipelvectomy or hip disarticulation treatments must be directed toward saving, muscle weakness of the affected joint(s). (101.20B). Under 101.20B, we consider reconstructing, or replacing the affected part a. An anatomical abnormality is one that hemipelvectomy, which involves amputation of the body to re-establish or improve its is readily observable by a medical source of an entire lower extremity through the function, and not for cosmetic appearances during a physical examination (for example, sacroiliac joint, and hip disarticulation, alone. subluxation or contracture), or is present on which involves amputation of an entire lower c. Examples include malformations, third- imaging (for example, joint space narrowing, extremity through the hip joint capsule and and fourth-degree burns, crush injuries, bony destruction, ankylosis, or deformity). closure of the remaining musculature over craniofacial injuries, avulsive injuries, and b. A functional abnormality is abnormal the exposed acetabular bone. If you have had amputations with complications of the motion or instability of the affected joint(s), a hemipelvectomy or hip disarticulation, residual limb(s). including limitation of motion, excessive your impairment satisfies the duration d. We evaluate skeletal spine abnormalities motion (hypermobility), movement outside requirement in § 416.909 of this chapter. or injuries under 101.15 or 101.16, as the normal plane of motion for the joint (for 4. Amputation of one upper extremity and appropriate. We evaluate abnormalities or example, lateral deviation), or fixation of the one lower extremity (101.20C). Under injuries of bones in the lower extremities affected joint(s). 101.20C, we consider the amputation of one under 101.17, 101.18, or 101.22. We evaluate 2. Major joint of an upper extremity refers upper extremity at any level at or above the abnormalities or injuries of bones in the to the shoulder, elbow, and wrist-hand. We wrist and one lower extremity at or above the upper extremities under 101.18 or 101.23. consider the wrist and hand together as one ankle. If you have a documented medical 2. Documentation. In addition to the major joint. need for a one-handed, hand-held assistive objective medical evidence we need to 3. Major joint of a lower extremity refers to device (such as a cane) or a wheeled and establish your soft tissue injury or the hip, knee, and ankle-foot. We consider seated mobility device involving the use of abnormality, we also need all of the the ankle and hindfoot together as one major one hand (such as a motorized wheelchair), following medically documented evidence joint. then you must use your remaining upper about your continuing surgical management: J. What do we consider when we evaluate extremity to hold the device, making the a. Operative reports and related laboratory pathologic fractures due to any cause extremity unavailable to perform other fine findings; (101.19)? We consider pathologic fractures of and gross movements (see 101.00E4). b. Records of post-surgical procedures; the bones in the skeletal spine, extremities, 5. Amputation of one lower extremity or c. Records of any surgical or medical or other parts of the skeletal system. both lower extremities with complications of complications (for example, related Pathologic fractures result from disorders the residual limb(s) (101.20D). Under infections or systemic illnesses); that weaken the bones, making them 101.20D, we consider the amputation of one d. Records of any prolonged post-operative vulnerable to breakage. Pathologic fractures lower extremity or both lower extremities at recovery periods and related treatments (for may occur with osteoporosis, osteogenesis or above the ankle. We also consider the example, surgeries and treatments for burns);

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e. An acceptable medical source’s plans for failed to unite completely. Nonunion is (ii) Some narrative developmental reports additional surgeries; and usually established when a minimum of 9 may include results from developmental f. Records detailing any other factors that months has elapsed since the injury and the screening tests, which can show that you are have delayed, or that an acceptable medical fracture site has shown no, or minimal, not developing or achieving skills within source expects to delay, the saving, restoring, progressive signs of healing for a minimum expected timeframes. Although medical or replacing of the involved part for a of 3 months. sources may refer to screening test results as continuous period of at least 12 months 2. Complex fracture. A complex fracture is supporting evidence in the narrative following the initiation of the surgical a fracture with one or more of the following: developmental report, screening test results management. a. Comminuted (broken into many pieces) alone cannot establish a medically 3. Burns. Third- and fourth-degree burns bone fragments; determinable impairment or the severity of damage or destroy nerve tissue, reducing or b. Multiple fractures in a single bone; developmental motor delay. preventing transmission of signals through c. Bone loss due to severe trauma; P. How will we determine whether your soft those nerves. Such burns frequently require d. Damage to the surrounding soft tissue; tissue injury or abnormality or your upper multiple surgical procedures and related e. Severe cartilage damage to the associated extremity fracture is no longer under therapies to re-establish or improve function, joint; or continuing surgical management or you have which we evaluate under 101.21. When f. Dislocation of the associated joint. received maximum benefit from therapy? burns are no longer under continuing 3. When a complex fracture involves soft 1. We will determine that your soft tissue surgical management (see 101.00P1), we tissue damage, the treatment may involve injury or abnormality, or your upper evaluate the residual impairment(s). When continuing surgical management to restore or extremity fracture, is no longer under the residual impairment(s) affects the improve functioning. In such cases, we may continuing surgical management, as used in musculoskeletal system, as often occurs in evaluate the fracture(s) under 101.21. 101.21 and 101.23, when the last surgical third- and fourth-degree burns, it can result O. What do we consider when we evaluate procedure or medical treatment directed in permanent musculoskeletal tissue loss, musculoskeletal disorders of infants and toward the re-establishment or improvement joint contractures, or loss of extremities. We toddlers from birth to attainment of age 3 of function of the involved part has occurred. will evaluate such impairments under the with developmental motor delay (101.24)? 2. We will determine that you have relevant musculoskeletal disorders listing, for 1. General. Under 101.24, we require received maximum benefit from therapy, as example, 101.18 or 101.20. When the reports from an acceptable medical source(s) used in 101.21, if there are no significant residual impairment(s) involves another body to establish a delay in your motor changes in physical findings or on system, we will evaluate the impairment(s) development as a medically determinable appropriate imaging for any 6-month period under the listings in the relevant body impairment. Examples of disorders we after the last surgical procedure or medical system(s). evaluate under this listing include treatment. We may also determine that you 4. Craniofacial injuries or congenital arthrogryposis, clubfoot, osteogenesis have received maximum benefit from therapy abnormalities. Surgeons may treat imperfecta, caudal regression syndrome, if your medical source(s) indicates that craniofacial injuries or congenital fracture complications, disorders affecting further improvement is not expected after the abnormalities with multiple surgical the hip and pelvis, and complications last surgical procedure or medical treatment. procedures. These injuries or abnormalities associated with your musculoskeletal 3. When you have received maximum may affect vision, hearing, speech, and the disorder or its treatment. Some medical benefit from therapy, we will evaluate any initiation of the digestive process, including records may simply document your impairment-related residual symptoms, mastication. When the craniofacial injury- condition as ‘‘developmental motor delay.’’ signs, and laboratory findings (including related or congenital abnormality-related 2. Severity of developmental motor delay. those on imaging), any complications residual impairment(s) involves another body To evaluate the severity of your associated with your surgical procedures or system(s), we will evaluate the impairment(s) developmental motor delay, we need medical treatments, and any residual under the listings in the relevant body developmental test reports from an limitations in your functioning (see 101.00R). system(s). acceptable medical source, or from early Q. How do we evaluate your M. What do we consider when we evaluate intervention specialists, physical and musculoskeletal disorder if there is no record non-healing or complex fractures of the occupational therapists, and other sources. of ongoing treatment? femur, tibia, pelvis, or one or more of the a. If there is a standardized developmental 1. Despite having a musculoskeletal talocrural bones (101.22)? assessment in your medical record, we will disorder, you may not have received ongoing 1. Non-healing fracture. A non-healing use the results to evaluate your treatment, may have just begun treatment, (nonunion) fracture is a fracture that has developmental motor delay under 101.24A. may not have access to prescribed medical failed to unite completely. Nonunion is Such an assessment compares your level of treatment, or may not have an ongoing usually established when a minimum of 9 development to the level typically expected relationship with the medical community. In months has elapsed since the injury and the for children of your chronological age. If you any of these situations, you will not have a fracture site has shown no, or minimal, were born prematurely, we use your longitudinal medical record for us to review progressive signs of healing for a minimum corrected chronological age for comparison. when we evaluate your disorder and we may of 3 months. See § 416.924b(b) of this chapter. ask you to attend a consultative examination 2. Complex fracture. A complex fracture is b. If there is no standardized to determine the severity and potential a fracture with one or more of the following: developmental assessment in your medical duration of your disorder. See § 416.919a(b) a. Comminuted (broken into many pieces) record, we will use narrative developmental of this chapter. bone fragments; reports from a medical source(s) to evaluate 2. In some instances, we may be able to b. Multiple fractures in a single bone; your developmental motor delay under assess the severity and duration of your c. Bone loss due to severe trauma; 101.24B. These reports must provide detailed musculoskeletal disorder based on your d. Damage to the surrounding soft tissue; information sufficient for us to assess the medical record and current evidence alone. e. Severe cartilage damage to the associated severity of your motor delay. If we cannot If the information in your case record is not joint; or obtain sufficient detail from narrative reports, sufficient to show that you have a f. Dislocation of the associated joint. we may purchase standardized musculoskeletal disorder that meets the 3. When a complex fracture involves soft developmental assessments. criteria of one of the musculoskeletal tissue damage, the treatment may involve (i) A narrative developmental report is disorders listings, we will follow the rules continuing surgical management to restore or based on clinical observations, progress described in 101.00R. improve functioning. In such cases, we may notes, and well-baby check-ups, and must R. How do we evaluate musculoskeletal evaluate the fracture(s) under 101.21. include your developmental history, disorders that do not meet one of these N. What do we consider when we evaluate examination findings (with abnormal listings? non-healing or complex fractures of an upper findings noted on repeated examinations), 1. These listings are only examples of extremity (101.23)? and an overall assessment of your musculoskeletal disorders that we consider 1. Non-healing fracture. A non-healing development (that is, more than one or two severe enough to result in marked and severe (nonunion) fracture is a fracture that has isolated skills) by the medical source. functional limitations. If your impairment(s)

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does not meet the criteria of any of these used to independently initiate, sustain, and 101.18 Abnormality of a major joint(s) in listings, we must also consider whether you complete age-appropriate activities involving any extremity (see 101.00I), documented by have an impairment(s) that meets the criteria fine and gross movements (see 101.00E4). A, B, C, and D: of a listing in another body system. 101.16 Lumbar spinal stenosis resulting A. Chronic joint pain or stiffness. 2. If you have a severe medically in compromise of the cauda equina (see AND determinable impairment(s) that does not 101.00G), documented by A, B, C, and D: B. Abnormal motion, instability, or meet a listing, we will determine whether A. Symptom(s) of neurological compromise immobility of the affected joint(s). your impairment(s) medically equals a manifested as: listing. See § 416.926 of this chapter. If your 1. Nonradicular distribution of pain in one AND impairment(s) does not meet or medically or both lower extremities; or C. Anatomical abnormality of the affected equal a listing, we will determine whether it 2. Nonradicular distribution of sensory loss joint(s) noted on: functionally equals the listings. See in one or both lower extremities; or 1. Physical examination (for example, § 416.926a of this chapter. 3. Neurogenic claudication. subluxation, contracture, or bony or fibrous ankylosis); or 3. We use the rules in § 416.994a of this AND 2. Imaging (for example, joint space chapter when we decide whether you B. Nonradicular neurological signs present continue to be disabled. narrowing, bony destruction, or ankylosis or during physical examination (see 101.00C2) arthrodesis of the affected joint). or on a diagnostic test (see 101.00C3) and 101.01 Category of Impairments, AND Musculoskeletal Disorders evidenced by 1 and either 2 or 3: 1. Muscle weakness. D. Impairment-related physical limitation 101.15 Disorders of the skeletal spine 2. Sensory changes evidenced by: of musculoskeletal functioning that has resulting in compromise of a nerve root(s) a. Decreased sensation; or lasted, or is expected to last, for a continuous (see 101.00F), documented by A, B, C, and b. Sensory nerve deficit (abnormal sensory period of at least 12 months, and medical D: nerve latency) on electrodiagnostic testing; or documentation of at least one of the A. Neuro-anatomic (radicular) distribution c. Areflexia, trophic ulceration, or bladder following: of one or more of the following symptoms or bowel incontinence. 1. A documented medical need (see consistent with compromise of the affected 3. Decreased deep tendon reflexes in one 101.00C6a) for a walker, bilateral canes, or nerve root(s): or both lower extremities. bilateral crutches (see 101.00C6d) or a 1. Pain; or wheeled and seated mobility device AND 2. Paresthesia; or involving the use of both hands (see 3. Muscle fatigue. C. Findings on imaging (see 101.00C3) or 101.00C6e(i)); or AND in an operative report (see 101.00C4) 2. An inability to use one upper extremity consistent with compromise of the cauda B. Radicular distribution of neurological to independently initiate, sustain, and equina with lumbar spinal stenosis. signs present during physical examination complete age-appropriate activities involving (see 101.00C2) or on a diagnostic test (see AND fine and gross movements (see 101.00E4), 101.00C3) and evidenced by 1, 2, and either D. Impairment-related physical limitation and a documented medical need (see 3 or 4: of musculoskeletal functioning that has 101.00C6a) for a one-handed, hand-held 1. Muscle weakness; and lasted, or is expected to last, for a continuous assistive device (see 101.00C6d) that requires 2. Sign(s) of nerve root irritation, tension, period of at least 12 months, and medical the use of the other upper extremity or a or compression, consistent with compromise documentation of at least one of the wheeled and seated mobility device of the affected nerve root (see 101.00F2) following: involving the use of one hand (see 3. Sensory changes evidenced by: 1. A documented medical need (see 101.00C6e(ii)); or a. Decreased sensation; or 101.00C6a) for a walker, bilateral canes, or 3. An inability to use both upper b. Sensory nerve deficit (abnormal sensory bilateral crutches (see 101.00C6d) or a extremities to the extent that neither can be nerve latency) on electrodiagnostic testing; or wheeled and seated mobility device used to independently initiate, sustain, and 4. Decreased deep tendon reflexes. involving the use of both hands (see complete age-appropriate activities involving fine and gross movements (see 101.00E4). AND 101.00C6e(i)); or 2. An inability to use one upper extremity 101.19 Pathologic fractures due to any C. Findings on imaging (see 101.00C3) to independently initiate, sustain, and cause (see 101.00J), documented by A and B: consistent with compromise of a nerve root(s) complete age-appropriate activities involving A. Pathologic fractures occurring on three in the cervical or lumbosacral spine. fine and gross movements (see 101.00E4), separate occasions within a 12-month period. AND and a documented medical need (see AND D. Impairment-related physical limitation 101.00C6a) for a one-handed, hand-held B. Impairment-related physical limitation of musculoskeletal functioning that has assistive device (see 101.00C6d) that requires of musculoskeletal functioning that has lasted, or is expected to last, for a continuous the use of the other upper extremity or a lasted, or is expected to last, for a continuous period of at least 12 months, and medical wheeled and seated mobility device period of at least 12 months, and medical documentation of at least one of the involving the use of one hand (see documentation of at least one of the following: 101.00C6e(ii)). following: 1. A documented medical need (see 101.17 Reconstructive surgery or surgical 1. A documented medical need (see 101.C6a) for a walker, bilateral canes, or arthrodesis of a major weight-bearing joint 101.00C6a) for a walker, bilateral canes, or bilateral crutches (see 101.00C6d) or a (see 101.00H), documented by A, B, and C: bilateral crutches (see 101.00C6d) or a wheeled and seated mobility device A. History of reconstructive surgery or wheeled and seated mobility device involving the use of both hands (see surgical arthrodesis of a major weight-bearing involving the use of both hands (see 101.00C6e(i)); or joint. 101.00C6e(i)); or 2. An inability to use one upper extremity AND 2. An inability to use one upper extremity to independently initiate, sustain, and to independently initiate, sustain, and B. Impairment-related physical limitation complete age-appropriate activities involving complete age-appropriate activities involving of musculoskeletal functioning that has fine and gross movements (see 101.00E4), fine and gross movements (see 101.00E4), lasted, or is expected to last, for a continuous and a documented medical need (see and a documented medical need (see period of at least 12 months. 101.00C6a) for a one-handed, hand-held 101.00C6a) for a one-handed, hand-held assistive device (see 101.00C6d) that requires AND assistive device (see 101.00C6d) that requires the use of the other upper extremity or a C. A documented medical need (see the use of the other upper extremity or a wheeled and seated mobility device 101.00C6a) for a walker, bilateral canes, or wheeled and seated mobility device involving the use of one hand (see bilateral crutches (see 101.00C6d) or a involving the use of one hand (see 101.00C6e(ii)); or wheeled and seated mobility device 101.00C6e(ii)); or 3. An inability to use both upper involving the use of both hands (see 3. An inability to use both upper extremities to the extent that neither can be 101.00C6e(i)). extremities to the extent that neither can be

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used to independently initiate, sustain, and lasted, or is expected to last, for a continuous daily insulin. For all other children (that is, complete age-appropriate activities involving period of at least 12 months. children with DM who are age 6 or older and fine and gross movements (see 101.00E4). AND require daily insulin, and children of any age 101.20 Amputation due to any cause (see C. A documented medical need (see with DM who do not require daily insulin), 101.00K), documented by A, B, C, or D: 101.00C6a) for a walker, bilateral canes, or we follow our rules for determining whether A. Amputation of both upper extremities, bilateral crutches (see 101.00C6d) or a the DM is severe, alone or in combination occurring at any level at or above the wrists wheeled and seated mobility device with another impairment, whether it meets or (carpal joints), up to and including the involving the use of both hands (see medically equals the criteria of a listing in shoulder (glenohumeral) joint. 101.00C6e(i)). another body system, or functionally equals OR 101.23 Non-healing or complex fracture the listings under the criteria in § 416.926a of this chapter, considering the factors in B. Hemipelvectomy or hip disarticulation. of an upper extremity (see 101.00N), documented by A and B: § 416.924a of this chapter. The management OR A. Nonunion or complex fracture, of the of DM in children can be complex and C. Amputation of one upper extremity, shaft of the humerus, radius, or ulna, under variable from day to day, and all children occurring at any level at or above the wrist continuing surgical management (see with DM require some level of adult (carpal joints), and amputation of one lower 101.00P1) directed toward restoration of supervision. For example, if a child age 6 or extremity, occurring at or above the ankle functional use of the extremity. older has a medical need for 24-hour-a-day adult supervision of insulin treatment, food (talocrural joint), and medical documentation AND of at least one of the following: intake, and physical activity to ensure 1. A documented medical need (see B. Medical documentation of an inability survival, we will find that the child’s 101.00C6a) for a walker, bilateral canes, or to independently initiate, sustain, and impairment functionally equals the listings complete age-appropriate activities involving bilateral crutches (see 101.00C6d) or a based on the example in § 416.926a(m)(2) of fine and gross movements (see 101.00E4) that wheeled and seated mobility device this chapter. has lasted, or is expected to last, for a involving the use of both hands (see * * * * * continuous period of at least 12 months. 101.00C6e(i)); or 101.24 Musculoskeletal disorders of 114.00 Immune System Disorders 2. A documented medical need (see infants and toddlers, from birth to attainment 101.00C6a) for a one-handed, hand-held * * * * * of age 3, with developmental motor delay C. Definitions assistive device (see 101.00C6d) requiring the (see 101.00O), documented by A or B: use of the other upper extremity or a wheeled A. A standardized developmental motor * * * * * and seated mobility device involving the use assessment that: 6. Documented medical need has the same of one hand (see 101.00C6e(ii)); or 1. Shows motor development not more meaning as in 101.00C6a. 3. The inability to use the remaining upper than one-half of the level typically expected 7. Fine and gross movements has the same extremity to independently initiate, sustain, for the child’s age; or meaning as in 101.00E4. and complete age-appropriate activities 2. Results in a valid score that is at least 8. Major joint of an upper or a lower involving fine and gross movements three standard deviations below the mean. extremity has the same meaning as in (101.00E4). 101.00I2 and 101.00I3. OR OR 9. * * * B. Two narrative developmental reports D. Amputation of one or both lower that: * * * * * extremities, occurring at or above the ankle 1. Are dated at least 120 days apart; and 12. Severe means medical severity as used (talocrural joint), with complications of the 2. Indicate current motor development not by the medical community. The term does residual limb(s) that have lasted, or are more than one-half of the level typically not have the same meaning as it does when expected to last, for a continuous period of expected for the child’s age. we use it in connection with a finding at the at least 12 months, and medical second step of the sequential evaluation documentation of 1 and 2: * * * * * process in § 416.920 of this chapter. 1. The inability to use a prosthesis(es); and 104.00 Cardiovascular System * * * * * 2. A documented medical need (see * * * * * D. How do we document and evaluate the 101.00C6a) for a walker, bilateral canes, or listed autoimmune disorders? bilateral crutches (see 101.00C6d) or a F. Evaluating Other Cardiovascular wheeled and seated mobility device Impairments * * * * * involving the use of both hands (see * * * * * 4. Polymyositis and dermatomyositis 101.00C6e(i)). 9. What is lymphedema and how will we (114.05). 101.21 Soft tissue injury or abnormality evaluate it? * * * * * under continuing surgical management (see * * * * * c. Additional information about how we 101.00L), documented by A, B, and C: b. Lymphedema does not meet the evaluate polymyositis and dermatomyositis A. Evidence confirms continuing surgical requirements of 4.11 in part A, although it under the listings. management (see 101.00P1) directed toward may medically equal the severity of that * * * * * saving, reconstructing, or replacing the listing. We will evaluate lymphedema by (ii) If you are of preschool age through affected part of the body. considering whether the underlying cause adolescence (age 3 to attainment of age 18), AND meets or medically equals any listing or weakness of your pelvic girdle muscles that B. The surgical management has been, or whether the lymphedema medically equals a results in your inability to rise independently is expected to be, ongoing for a continuous cardiovascular listing, such as 4.11, or a from a squatting or sitting position or to period of at least 12 months. musculoskeletal disorders listing, such as climb stairs may be an indication that you are 101.18. If no listing is met or medically unable to walk without assistance. Weakness AND equaled, we will evaluate any functional of your shoulder girdle muscles may result in C. Maximum benefit from therapy (see limitations imposed by your lymphedema your inability to perform lifting, carrying, 101.00P2) has not yet been achieved. when we consider whether you have an and reaching overhead, and also may 101.22 Non-healing or complex fracture impairment that functionally equals the seriously affect your ability to perform of the femur, tibia, pelvis, or one or more of listings. activities requiring fine movements. We the talocrural bones (see 101.00M), * * * * * evaluate these limitations under 114.05A. documented by A, B, and C: * * * * * A. Solid union not evident on imaging (see 109.00 Endocrine Disorders 6. * * * 101.00C3) and not clinically solid. * * * * * a. General. The spectrum of inflammatory AND C. How do we evaluate DM in children? arthritis includes a vast array of disorders B. Impairment-related physical limitation Listing 109.08 is only for children with DM that differ in cause, course, and outcome. of musculoskeletal functioning that has who have not attained age 6 and who require Clinically, inflammation of major joints in an

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upper or a lower extremity may be the involving the use of both hands (see used to independently initiate, sustain, and dominant manifestation causing difficulties 101.00C6e(i)); or complete age-appropriate activities involving with walking or fine and gross movements; b. An inability to use one upper extremity fine and gross movements (see 114.00C7); or there may be joint pain, swelling, and to independently initiate, sustain, and tenderness. The arthritis may affect other complete age-appropriate activities involving * * * * * joints, or cause less limitation in walking or fine and gross movements (see 114.00C7), 114.09 Inflammatory arthritis. As fine and gross movements. However, in and a documented medical need (see described in 114.00D6. With: combination with extra-articular features, 114.00C6) for a one-handed, hand-held A. Persistent inflammation or persistent including constitutional symptoms or signs assistive device (see 101.00C6d) that requires deformity of: (severe fatigue, fever, malaise, and the use of the other upper extremity or a 1. One or more major joints in a lower involuntary weight loss), inflammatory wheeled and seated mobility device extremity (see 114.00C8) and medical arthritis may result in an extreme limitation. involving the use of one hand (see documentation of at least one of the 101.00C6e(ii)); or * * * * * following: 4. Atrophy with irreversible damage in e. * * * a. A documented medical need (see (i) Listing-level severity in 114.09A and both upper extremities and medical documentation of an inability to use both 114.00C6) for a walker, bilateral canes, or 114.09C1 is shown by the presence of an bilateral crutches (see 101.00C6d) or a impairment-related physical limitation of upper extremities to the extent that neither wheeled and seated mobility device functioning. In 114.09C1, if you have the can be used to independently initiate, required ankylosis (fixation) of your cervical sustain, and complete age-appropriate involving the use of both hands (see or dorsolumbar spine, we will find that you activities involving fine and gross 101.00C6e(i)); or have a listing-level impairment-related movements (see 114.00C7); or b. An inability to use one upper extremity physical limitation in your ability to see in C. Raynaud’s phenomenon, characterized to independently initiate, sustain, and front of you, above you, and to the side, even by: complete age-appropriate activities involving though you might not require bilateral upper * * * * * fine and gross movements (see 114.00C7), limb assistance. 2. Ischemia with ulcerations of toes or and a documented medical need (see (ii) Listing-level severity in 114.09B and fingers and medical documentation of at least 114.00C6) for a one-handed, hand-held 114.09C2 is shown by inflammatory arthritis one of the following: assistive device (see 101.00C6d) that requires a. A documented medical need (see that involves various combinations of the use of the other upper extremity or a 114.00C6) for a walker, bilateral canes, or complications (such as inflammation or wheeled and seated mobility device deformity, extra-articular features, repeated bilateral crutches (see 101.00C6d) or a involving the use of one hand (see manifestations, and constitutional symptoms wheeled and seated mobility device and signs) of one or more major joints in an involving the use of both hands (see 101.00C6e(ii)); or upper or a lower extremity (see 114.00C8) or 101.00C6e(i)); or 2. One or more major joints in each upper other joints. Extra-articular impairments may b. An inability to use one upper extremity extremity (see 114.00C8) and medical also meet listings in other body systems. to independently initiate, sustain, and documentation of an inability to use both complete age-appropriate activities involving * * * * * upper extremities to the extent that neither fine and gross movements (see 114.00C7), can be used to independently initiate, 114.04 Systemic sclerosis (scleroderma). and a documented medical need (see As described in 114.00D3. With: sustain, and complete age-appropriate 114.00C6) for a one-handed, hand-held activities involving fine and gross * * * * * assistive device (see 101.00C6d) that requires movements (see 114.00C7); or B. One of the following: the use of the other upper extremity or a B. Inflammation or deformity in one or 1. Toe contractures or fixed deformity of wheeled and seated mobility device one or both feet and medical documentation involving the use of one hand (see more major joints of an upper or lower of at least one of the following: 101.00C6e(ii)); or extremity (see 114.00C8) with: a. A documented medical need (see c. An inability to use both upper * * * * * 114.00C6) for a walker, bilateral canes, or extremities to the extent that neither can be bilateral crutches (see 101.00C6d) or a used to independently initiate, sustain, and PART 416—SUPPLEMENTAL wheeled and seated mobility device complete age-appropriate activities involving SECURITY INCOME FOR THE AGED, involving the use of both hands (see fine and gross movements (see 114.00C7). BLIND, AND DISABLED 101.00C6e(i)); or * * * * * b. An inability to use one upper extremity 114.05 Polymyositis and Subpart I—Determining Disability and to independently initiate, sustain, and dermatomyositis. As described in 114.00D4. Blindness complete age-appropriate activities involving With: fine and gross movements (see 114.00C7), A. Proximal limb-girdle (pelvic or and a documented medical need (see shoulder) muscle weakness and medical ■ 3. The authority citation for subpart I 114.00C6) for a one-handed, hand-held documentation of at least one of the of part 416 continues to read as follows: assistive device (see 101.00C6d) that requires following: Authority: Secs. 221(m), 702(a)(5), 1611, the use of the other upper extremity or a 1. A documented medical need (see 1614, 1619, 1631(a), (c), (d)(1), and (p), and wheeled and seated mobility device 114.00C6) for a walker, bilateral canes, or involving the use of one hand (see bilateral crutches (see 101.00C6d) or a 1633 of the Social Security Act (42 U.S.C. 101.00C6e(ii)); or wheeled and seated mobility device 421(m), 902(a)(5), 1382, 1382c, 1382h, 2. Finger contractures or fixed deformity in involving the use of both hands (see 1383(a), (c), (d)(1), and (p), and 1383(b)); both hands and medical documentation of an 101.00C6e(i)); or secs. 4(c) and 5, 6(c)–(e), 14(a), and 15, Pub. inability to use both upper extremities to the 2. An inability to use one upper extremity L. 98–460, 98 Stat. 1794, 1801, 1802, and extent that neither can be used to to independently initiate, sustain, and 1808 (42 U.S.C. 421 note, 423 note, and independently initiate, sustain, and complete complete age-appropriate activities involving 1382h note). age-appropriate activities involving fine and fine and gross movements (see 114.00C7), gross movements (see 114.00C7); or and a documented medical need (see § 416.926a [Amended] 3. Atrophy with irreversible damage in one 114.00C6) for a one-handed, hand-held or both lower extremities and medical assistive device (see 101.00C6d) that requires ■ 4. Amend § 416.926a by removing documentation of at least one of the the use of the other upper extremity or a paragraphs (m)(1) and (2) and following: wheeled and seated mobility device redesignating paragraphs (m)(3) through a. A documented medical need (see involving the use of one hand (see (5) as (m)(1) through (3). 114.00C6) for a walker, bilateral canes, or 101.00C6e(ii)); or bilateral crutches (see 101.00C6d) or a 3. An inability to use both upper [FR Doc. 2020–25250 Filed 12–2–20; 8:45 am] wheeled and seated mobility device extremities to the extent that neither can be BILLING CODE 4191–02–P

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Part III

The President

Proclamation 10122—National Impaired Driving Prevention Month, 2020 Proclamation 10123—World AIDS Day, 2020

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Federal Register Presidential Documents Vol. 85, No. 233

Thursday, December 3, 2020

Title 3— Proclamation 10122 of November 30, 2020

The President National Impaired Driving Prevention Month, 2020

By the President of the United States of America

A Proclamation In the United States, one person tragically dies every 50 minutes in a drunk driving incident. Far too many families experience the pain of losing a loved one to impaired driving, and even more must cope with health and financial consequences that result from this illegal and avoidable con- duct. During National Impaired Driving Prevention Month, we remember the lives lost as a result of those driving under the influence of drugs or alcohol, we acknowledge the pain and suffering caused by impaired driving, we honor the brave law enforcement officers who risk their lives to protect our communities from this irresponsible behavior, and we resolve to never get behind the wheel unless we are sober. Alcohol, drugs, and certain medications can impair judgement, decrease motor coordination, and slow reaction time to the point where operating a motor vehicle is no longer safe. While deaths caused by impaired driving have thankfully fallen by more than 30 percent in the last three decades, too many Americans still make the thoughtless decision to drive impaired, threatening other motorists, cyclists, and pedestrians, killing nearly 30 people every day. Since my first day in office, my Administration has fought to address this tragedy head on and reduce impaired-driving deaths. We are constantly working with law enforcement officers and public safety professionals to provide them with the resources and support they need to keep our roads safe. To address the root causes of impaired driving, my Administration is also assisting those with substance use disorder through initiatives like www.FindTreatment.gov, a website dedicated to connecting people with the treatment they need, and the Rural Community Toolbox, which provides funding and resources to help build strong, healthy, and drug-free rural communities. Additionally, our Nation’s business owners, skilled workers, and innovative entrepreneurs have joined in this fight. The rapid expansion and improvement of existing technologies like ride-sharing and Advanced Vehicle Technologies continue to provide additional safe alternatives to impaired driving. We must all do our part to stop the tragedies caused by impaired driving. This month, I encourage individuals across America to recommit to working together to reduce the number of crashes, injuries, and fatalities on our Nation’s roads. Let us vow to act responsibly, always drive sober, and keep our communities safe. NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim December 2020 as National Impaired Driving Prevention Month. I urge all Americans to make responsible decisions and take appropriate measures to prevent im- paired driving.

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IN WITNESS WHEREOF, I have hereunto set my hand this thirtieth day of November, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty- fifth.

[FR Doc. 2020–26792 Filed 12–2–20; 11:15 am] Billing code 3295–F1–P

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Proclamation 10123 of November 30, 2020 World AIDS Day, 2020

By the President of the United States of America

A Proclamation Today, our Nation joins millions across the globe in remembrance of the precious lives lost to human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS)-related illnesses, and we reaffirm our support for those living with these diseases. Thankfully, decades of remark- able advancements and improved understanding have put us within reach of ending its devastating impact. Through increased awareness, revolutionary prevention strategies, and safe and effective treatment regimens, we will soon end the AIDS epidemic once and for all. Over the past 40 years, HIV and AIDS have infected more than 77 million people worldwide and claimed no less than 35 million lives, including those of 700,000 Americans. Currently, there are approximately 1.2 million people living in the United States with HIV, including roughly 170,000 people who have not been diagnosed. Additionally, it is all too clear that this deadly disease disproportionately affects racial and ethnic minorities. As President, I promised to end the AIDS crisis in America within a decade, and I am proud to report that we are on track to meet that goal. In 2019, I announced Ending the HIV Epidemic: A Plan for America, a bold whole- of-society approach to eradicating this disease. Already, we have sent $227 million to cities, counties, States, local health departments, and community health centers to support and bolster their efforts. Under this plan, our Nation’s scientists, researchers, and medical professionals have been able to identify where HIV is spreading most rapidly, which informs decisions about where to focus funding and provide support to public health officials who are addressing needs at a local level to eradicate AIDs. This July, as part of these efforts, the Centers for Disease Control and Prevention awarded $109 million to 32 State and local health departments to support core HIV diagnosis and prevention activities. Additionally, the Ryan White HIV/AIDS Program of the Health Resources and Services Administration (HRSA) is continuing to provide those diagnosed with access to high quality, comprehensive primary care. Under HRSA’s Bureau of Primary Health Care health centers have implemented critical early detection initiatives that have produced life-saving diagnoses of Americans living with HIV, saving count- less American lives. Across many fronts, our response has been comprehensive—and it is working. Preventative measures such as Pre-Exposure Prophylaxis (PrEP) and syringe service programs are reducing the number of new HIV transmissions and, if one has already been exposed, Post-Exposure Prophylaxis (PEP) is helping prevent further spread of infection. In 2019 alone, federally funded health centers provided more than 2.7 million HIV tests to over 2.2 million patients. The Ryan White HIV/AIDS Program has proven remarkably successful at viral suppression, reducing viral loads in 87.1 percent of its clients’ cases in 2018. And the National Institutes of Health continues its work to develop a vaccine. Outside of the United States, my Administration’s global response is being led by the world’s most advanced health experts and diplomats through the President’s Emergency Plan for AIDS Relief (PEPFAR), the most successful

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health initiative in American history. When first launched in 2003, there were 26.6 million Africans infected with AIDS and only 50,000 receiving lifesaving antiretroviral treatment. Today, more than 15.7 million men, women, and children in Africa are receiving these vital treatments. PEPFAR has saved over 18 million lives, prevented millions of HIV infections, and accelerated progress toward controlling the HIV/AIDS epidemic in more than 50 countries. Through these and other initiatives we are bringing to a close a painful chapter in human history. For the past many decades, HIV and AIDS have inflicted untold suffering on millions of people both here at home and abroad. But by the end of this decade, we will have eliminated this scourge from our country and released much of the rest of the world from its deadly grip. NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim December 1, 2020, as World AIDS Day. I urge the Governors of the States and the Commonwealth of Puerto Rico, officials of the other Territories subject to the jurisdiction of the United States, and all Americans to join me in appropriate activities to remember those who have lost their lives to AIDS and to provide support and compassion to those living with HIV/AIDS. IN WITNESS WHEREOF, I have hereunto set my hand this thirtieth day of November, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty- fifth.

[FR Doc. 2020–26793 Filed 12–2–20; 11:15 am] Billing code 3295–F1–P

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Reader Aids Federal Register Vol. 85, No. 233 Thursday, December 3, 2020

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