Federal Register Vol. 80, No.33,

I. Summary of Final Rule

In November 2013, pursuant to sections 1098 and 1100A of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), the Bureau issued the Integrated Mortgage Disclosures under the Real Estate Settlement Procedures Act (Regulation X) and the Truth in Lending Act (Regulation Z) (2013 TILA-RESPA Final Rule),1 combining certain disclosures that consumers receive in connection with applying for and closing on a mortgage loan.

On October 10, 2014, the Bureau proposed several amendments to Regulation Z provisions adopted by the 2013 TILA-RESPA Final Rule 2 (the proposal):

• To extend the timing requirement for creditors to provide a revised Loan Estimate to consumers when consumers lock a rate or extend a rate lock after the Loan Estimate is provided. The 2013 TILA-RESPA Final Rule requires creditors to provide a revised Loan Estimate with the revised interest rate, the points disclosed pursuant to § 1026.37(f)(1), lender credits, and any other interest rate dependent charges and terms on the date the interest rate is locked. The Bureau proposed to extend the timing requirement to the next business day after the rate is locked.

• To provide for the placement on the Loan Estimate form of language relating to construction loans in transactions involving new construction that is required in order for creditors to redisclose estimated charges.

• To make non-substantive corrections, including minor wording changes, corrected or updated citations and cross-references, in the regulation and commentary adopted by the 2013 TILA-RESPA Final Rule.

• The Bureau also proposed to amend the 2013 Loan Originator Final Rule 3 to provide for placement of the NMLSR ID on the integrated disclosures.

With respect to the proposal to allow creditors to redisclose the Loan Estimate one business day after the interest rate is locked, the Bureau is extending the timing requirement to three business days after the rate is locked. With respect to all other aspects of the proposal, the Bureau is adopting the amendments as proposed. The Bureau also is adopting additional, non-substantive corrections identified since the proposal was issued.

In July 2010, the Dodd-Frank Act was enacted. The Dodd-Frank Act transferred rulemaking authority under both TILA and RESPA to the Bureau. In addition, Dodd-Frank Act sections 1032(f), 1098, and 1100A mandated that the Bureau establish a single disclosure scheme for use by lenders or creditors in complying with the disclosure requirements of both RESPA and TILA. Section 1098(2) of the Dodd-Frank Act amended RESPA section 4(a) to require that the Bureau publish a single, integrated disclosure for mortgage loan transactions, including “the disclosure requirements of this section and section 5, in conjunction with the disclosure requirements of [TILA]. . . .” 4 Similarly, section 1100A(5) of the Dodd-Frank Act amended TILA section 105(b) to require that the Bureau publish a single, integrated disclosure for mortgage loan transactions, including “the disclosure requirements of this title in conjunction with the disclosure requirements of [RESPA]. . . .” 5 The Dodd-Frank Act required the Bureau to issue for public comment rules and model disclosures that integrated the TILA and RESPA disclosures by July 21, 2012.6

The Bureau issued proposed integrated disclosure forms and rules for public comment on July 9, 2012 (the 2012 TILA-RESPA Proposal).7 On December 31, 2013, more than 17 years after Congress first directed the Federal Reserve Board and the Department of Housing and Urban Development (HUD) to integrate the disclosures under TILA and RESPA, the Bureau published the 2013 TILA-RESPA Final Rule.8

In early 2014, the Bureau initiated efforts to support industry implementation of the 2013 TILA-RESPA Final Rule. These on-going efforts include: (1) The publication of a plain-language compliance guide and guide to forms to help industry understand the new rules, including updates to the guides, as needed; (2) the publication of a readiness guide for institutions to evaluate their readiness and facilitate compliance with the new rules; (3) the publication of a disclosure timeline that illustrates the process and timing requirements of the new disclosure rules; (4) an ongoing series of webinars to address common interpretive questions; (5) roundtable meetings with industry, including creditors, settlement service providers, and technology vendors, to discuss implementation; (6) participation in conferences and forums; and (7) close collaboration with State and Federal regulators on implementation of the 2013 TILA-RESPA Final Rule, including coordination on consistent examination procedures. More information regarding the Bureau's TILA-RESPA implementation initiative can be found on the Bureau's regulatory implementation Web site at www.consumerfinance.gov/regulatory-implementation.

The Bureau received 31 comments from creditors, trade associations, technology vendors, and others in response to the October 10, 2014 proposal to amend the 2013 TILA-RESPA Final Rule. Many of the comments discussed issues beyond the scope of the proposal. The Bureau discusses those comments that were responsive to the proposal in the section-by-section analysis below. This final rule does not make any changes outside the scope of the proposal, other than additional, non-substantive corrections identified since the proposal was issued.

The Bureau is issuing this final rule pursuant to its authority under TILA, RESPA, and the Dodd-Frank Act. Section 1061 of the Dodd-Frank Act transferred to the Bureau the “consumer financial protection functions” previously vested in certain other Federal agencies, including the Board's consumer protection functions relating to TILA mortgage disclosures and the HUD Secretary's consumer protection functions relating to RESPA.9 The term “consumer financial protection function” is defined to include “all authority to prescribe rules or issue orders or guidelines pursuant to any Federal consumer financial law, including performing appropriate functions to promulgate and review such rules, orders, and guidelines.” 10 Title X of the Dodd-Frank Act, including section 1061 of the Dodd-Frank Act, along with TILA, RESPA, and certain subtitles and provisions of title XIV of the Dodd-Frank Act, are Federal consumer financial laws.11 Accordingly, the Bureau has authority to issue regulations pursuant to TILA and RESPA, including the disclosure requirements added to those statutes by title XIV of the Dodd-Frank Act, as well as title X of the Dodd-Frank Act.

Section 1032(f) of the Dodd-Frank Act requires that, “[n]ot later than one year after the designated transfer date [of July 21, 2011], the Bureau shall propose for public comment rules and model disclosures that combine the disclosures required under [TILA] and sections 4 and 5 of [RESPA], into a single, integrated disclosure for mortgage loan transactions covered by those laws, unless the Bureau determines that any proposal issued by the [Board] and [HUD] carries out the same purpose.” 12 In addition, the Dodd-Frank Act amended section 105(b) of TILA and section 4(a) of RESPA to require the integration of the TILA disclosures and the disclosures required by sections 4 and 5 of RESPA.13 The purpose of the integrated disclosure is to facilitate compliance with the disclosure requirements of TILA and RESPA and to help the consumer understand the transaction by using readily understandable language to simplify the technical nature of the disclosures.14

Although Congress imposed this integrated disclosure requirement, it did not harmonize the underlying statutes. In particular, TILA and RESPA establish different timing requirements for disclosing mortgage credit terms and costs to consumers and require that those disclosures be provided by different parties. TILA generally requires that, within three business days of receiving the consumer's application and at least seven business days before consummation of certain mortgage transactions, creditors must provide consumers a good faith estimate of the costs of credit.15 If the annual percentage rate that was initially disclosed becomes inaccurate, TILA requires creditors to redisclose the information at least three business days before consummation.16 These disclosures must be provided in final form at consummation.17 RESPA also requires that the creditor or broker provide consumers with a good faith estimate of settlement charges no later than three business days after receiving the consumer's application. However, unlike TILA, RESPA requires that, at or before settlement, “the person conducting the settlement” (which may or may not be the creditor) provide the consumer with a statement that records all charges imposed upon the consumer in connection with the settlement.18

The Dodd-Frank Act did not reconcile these and other statutory differences. Therefore, to meet the Dodd-Frank Act's mandate to integrate the disclosures required by TILA and RESPA, the Bureau was required to do so. Dodd-Frank Act section 1032(f), TILA section 105(b), and RESPA section 4(a) provide the Bureau with authority to issue regulations that reconcile certain provisions of TILA and RESPA to carry out Congress' mandate to integrate the statutory disclosure requirements.

This rule also relies on the rulemaking and exception authorities specifically granted to the Bureau by TILA, RESPA, and the Dodd-Frank Act, including the authorities discussed below.

TILA section 105(a). As amended by the Dodd-Frank Act, TILA section 105(a), 15 U.S.C. 1604(a), directs the Bureau to prescribe regulations to carry out the purposes of TILA and provides that such regulations may contain additional requirements, classifications, differentiations, or other provisions and may further provide for such adjustments and exceptions for all or any class of transactions that the Bureau judges are necessary or proper to effectuate the purposes of TILA, to prevent circumvention or evasion thereof, or to facilitate compliance therewith. A purpose of TILA is “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” 19 This stated purpose is informed by Congress' finding that “economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit[.]” 20 Thus, strengthened competition among financial institutions is a goal of TILA.

Historically, TILA section 105(a) has served as a broad source of authority for rules that promote the informed use of credit through required disclosures and substantive regulation of certain practices. Dodd-Frank Act section 1100A clarified the Bureau's section 105(a) authority by amending that section to provide express authority to prescribe regulations that contain “additional requirements” that the Bureau finds are necessary or proper to effectuate the purposes of TILA, to prevent circumvention or evasion thereof, or to facilitate compliance. This amendment clarified the Bureau's authority to prescribe requirements beyond those specifically listed in the statute that meet the standards outlined in TILA section 105(a). The Dodd-Frank Act also clarified the Bureau's rulemaking authority over certain high-cost mortgages pursuant to section 105(a). As amended by the Dodd-Frank Act, TILA section 105(a) authority to make adjustments and exceptions to the requirements of TILA applies to all transactions subject to TILA, except with respect to the provisions of TILA section 129 that apply to the high-cost mortgages referred to in TILA section 103(bb), 15 U.S.C. 1602(bb).21

TILA section 129B(e). Dodd-Frank Act section 1405(a) amended TILA to add new section 129B(e), 15 U.S.C. 1639B(e). That section authorizes the Bureau to “prohibit or condition terms, acts, or practices relating to residential mortgage loans that the Bureau finds to be abusive, unfair, deceptive, predatory, necessary or proper to ensure that responsible, affordable mortgage credit remains available to consumers in a manner consistent with the purposes of this section and section 129C [of TILA], necessary or proper to effectuate the purposes of this section and section 129C [of TILA], to prevent circumvention or evasion thereof, or to facilitate compliance with such sections, or are not in the interest of the borrower.” In developing rules under TILA section 129B(e), the Bureau has considered the broad mandate of section 129B.

Section 19(a) of RESPA, 12 U.S.C. 2617(a), authorizes the Bureau to prescribe such rules and regulations and to make such interpretations and grant such reasonable exemptions for classes of transactions as may be necessary to achieve the purposes of RESPA. In enacting RESPA, Congress sought “to insure that consumers . . . are provided with greater and more timely information on the nature and costs of the settlement process and protected from unnecessarily high settlement charges caused by certain abusive practices in some areas of the country.” 22 RESPA section 19(a) has served as a broad source of authority to prescribe disclosures and substantive requirements to carry out the purposes of RESPA.

In developing rules under RESPA section 19(a), the Bureau has considered the purposes of RESPA. One purpose of RESPA is “to effect certain changes in the settlement process for residential real estate that will result in more effective advance disclosure to home buyers and sellers of settlement costs.” 23

Dodd-Frank Act section 1021. Section 1021(a) of the Dodd-Frank Act provides that the Bureau shall seek to implement and, where applicable, enforce Federal consumer financial law consistently for the purpose of ensuring that all consumers have access to markets for consumer financial services and that markets for consumer financial products and services are fair, transparent, and competitive.24 In addition, section 1021(b) of the Dodd-Frank Act provides that the Bureau is authorized to exercise its authorities under Federal consumer financial law for the purposes of ensuring, with respect to consumer financial products and services, that, among other things: (1) Consumers are provided with timely and understandable information to make responsible decisions about financial transactions; (2) consumers are protected from unfair, deceptive, or abusive acts and practices and from discrimination; (3) outdated, unnecessary, or unduly burdensome regulations are regularly identified and addressed in order to reduce unwarranted regulatory burdens; (4) Federal consumer financial law is enforced consistently, without regard to the status of a person as a depository institution, in order to promote fair competition; and (5) markets for consumer financial products and services operate transparently and efficiently to facilitate access and innovation.25 In developing this rulemaking, the Bureau has sought to ensure that it is consistent with the purposes of Dodd-Frank Act section 1021(a) and with the objectives of Dodd-Frank Act section 1021(b), specifically including Dodd-Frank Act section 1021(b)(1) and (3).

Dodd-Frank Act section 1022(b). Section 1022(b)(1) of the Dodd-Frank Act authorizes the Bureau to prescribe rules “as may be necessary or appropriate to enable the Bureau to administer and carry out the purposes and objectives of the Federal consumer financial laws, and to prevent evasions thereof.” 26 Section 1022(b)(2) of the Dodd-Frank Act prescribes certain standards for rulemaking that the Bureau must follow in exercising its authority under section 1022(b)(1).27 As discussed above, TILA and RESPA are Federal consumer financial laws. Accordingly, in finalizing this rule, the Bureau is exercising its authority under Dodd-Frank Act section 1022(b) to prescribe rules under TILA, RESPA, and title X of the Dodd-Frank Act that carry out the purposes and objectives and prevent evasion of those laws. See part VI for a discussion of the Bureau's standards for rulemaking under Dodd-Frank Act section 1022(b)(2).

Dodd-Frank Act section 1032. Section 1032(a) of the Dodd-Frank Act provides that the Bureau “may prescribe rules to ensure that the features of any consumer financial product or service, both initially and over the term of the product or service, are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances.” 28 The authority granted to the Bureau in section 1032(a) is broad and empowers the Bureau to prescribe rules regarding the disclosure of the “features” of consumer financial products and services generally. Accordingly, the Bureau may prescribe rules containing disclosure requirements even if other Federal consumer financial laws do not specifically require disclosure of such features.

Dodd-Frank Act section 1032(c) provides that, in prescribing rules pursuant to section 1032, the Bureau “shall consider available evidence about consumer awareness, understanding of, and responses to disclosures or communications about the risks, costs, and benefits of consumer financial products or services.” 29 Accordingly, in developing the 2013 TILA-RESPA Final Rule and amendments thereto under Dodd-Frank Act section 1032(a), the Bureau considered available studies, reports, and other evidence about consumer awareness, understanding of, and responses to disclosures or communications about the risks, costs, and benefits of consumer financial products or services. Moreover, the Bureau has considered the evidence developed through its consumer testing of the integrated disclosures as well as prior testing done by the Board and HUD regarding TILA and RESPA disclosures. See part III of the 2013 TILA-RESPA Final Rule for a discussion of the Bureau's consumer testing.30

Dodd-Frank Act section 1405(b). Section 1405(b) of the Dodd-Frank Act provides that, “[n]otwithstanding any other provision of [title XIV of the Dodd-Frank Act], in order to improve consumer awareness and understanding of transactions involving residential mortgage loans through the use of disclosures, the Bureau may, by rule, exempt from or modify disclosure requirements, in whole or in part, for any class of residential mortgage loans if the Bureau determines that such exemption or modification is in the interest of consumers and in the public interest.” 31 Section 1401 of the Dodd-Frank Act, which amends TILA section 103(cc)(5), 15 U.S.C. 1602(cc)(5), generally defines a residential mortgage loan as any consumer credit transaction that is secured by a mortgage on a dwelling or on residential real property that includes a dwelling other than an open-end credit plan or an extension of credit secured by a consumer's interest in a timeshare plan. Notably, the authority granted by section 1405(b) applies to “disclosure requirements” generally and is not limited to a specific statute or statutes. Accordingly, Dodd-Frank Act section 1405(b) is a broad source of authority to exempt from or modify the disclosure requirements of TILA and RESPA.

In developing rules for residential mortgage loans under Dodd-Frank Act section 1405(b), the Bureau has considered the purposes of improving consumer awareness and understanding of transactions involving residential mortgage loans through the use of disclosures and the interests of consumers and the public.

The Bureau proposed non-substantive corrections, including citation and cross-reference updates and wording changes for clarification purposes, in Regulation X and Regulation Z. The Bureau received comments that supported these proposed changes. The Bureau is adopting as proposed the non-substantive corrections to regulatory text in §§ 1024.5(d), 1026.37(o), and 1026.38(e); commentary to §§ 1026.37(b), (c), and (h) and 1026.38(a) and (e); and appendix H. The Bureau also is making non-substantive clarifications to the commentary to § 1026.38(g) for the reasons discussed in the section-by-section analysis below, as well as other, non-substantive corrections and wording clarifications to regulatory text in § 1026.38(j) and (t).

Pursuant to the Bureau's authority as described in the 2012 TILA-RESPA Proposal 32 and the 2013 TILA-RESPA Final Rule 33 , the Bureau proposed to amend § 1026.19(e)(3)(iv)(D) to modify the timing requirement for creditors to provide a revised Loan Estimate to consumers when the interest rate is locked after the provision of the Loan Estimate. Section § 1026.19(e)(3)(iv)(D), as adopted by the 2013 TILA-RESPA Final Rule, requires creditors to provide the revised disclosure with the revised interest rate, the points disclosed pursuant to § 1026.37(f)(1), lender credits, and any other interest rate dependent charges and terms on the date the interest rate is locked. The Bureau proposed to change the timing requirement to the next business day after the rate is locked. As discussed in detail below, this final rule amends § 1026.19(e)(3)(iv)(D) to provide creditors with three business days, rather than one business day, to provide the revised Loan Estimate. This amendment harmonizes the timing requirement in § 1026.19(e)(3)(iv)(D) with other timing requirements for redisclosure adopted in the 2013 TILA-RESPA Final Rule and is consistent with current law and practice pursuant to § 1024.7(f)(5), under which creditors have three business days from rate lock to provide a revised Good Faith Estimate.

As discussed in the proposal, the Bureau proposed to allow creditors an additional business day to provide the revised Loan Estimate because it received information suggesting that creditors may not control when a rate is locked to the same extent the Bureau believed when it issued the 2013 TILA-RESPA Final Rule. The Bureau also learned that operational challenges due to the same-day redisclosure requirement in § 1026.19(e)(3)(iv)(D) could restrict the flexibility many creditors currently provide consumers to lock their interest rates and could result in creditors imposing time restrictions on when consumers may lock their rates (e.g., “cut-off” times). Given the potential consequences of losing the ability to reset the applicable tolerances for interest rate dependent charges pursuant to § 1026.19(e)(3), the Bureau believes creditors could respond to the same-day timing requirement adopted by the 2013 TILA-RESPA Final Rule by limiting consumers' ability to lock rates at the time of their choice and imposing cut-off times that only allow consumers to lock interest rates on business days during preset hours. Accordingly, the Bureau reconsidered the same-day redisclosure requirement and proposed to amend § 1026.19(e)(3)(iv)(D) and its commentary to adjust this timing requirement.

Currently, some creditors permit the consumer, or loan originator working on behalf of the consumer, to lock the interest rate unilaterally at any point during a business day or even after normal business hours. The Bureau believes this flexibility is beneficial to consumers because it allows them to lock interest rates on a date and time of their choosing, without time restrictions imposed by the creditor. The same-day redisclosure requirement could reduce consumers' ability to determine when their rates are locked, if creditors respond by either imposing cut-off times after which consumers are unable to lock their interest rates until the next business day or refusing to lock the rate contractually until the business day after the consumer requests a rate lock.

As explained in the proposal, the Bureau believes that, if creditors impose cut-off times, consumers would be limited to certain times of day that they or their representatives could lock interest rates. This could result in consumers, particularly those who are in different time zones than their creditors, missing the applicable time window to lock on a day of their choice and having to wait until the next business day to do so. Alternatively, the Bureau believes some creditors may be able to provide a revised Loan Estimate on the date that a rate lock agreement is formed if those creditors allow consumers to request the rate only at a time of the creditors' choosing and then later execute or form a binding agreement with the consumers. However, the Bureau believes this result could present other challenges to consumers. For example, consumers may be confused if they believe they are locking an interest rate at a certain time but in fact are merely requesting rates that are not contractually binding until the creditor accepts the request at some later time. Accordingly, the Bureau stated in the proposal that it believed the same-day redisclosure requirement warranted reconsideration because it could create implementation challenges to industry that may result in reduced consumer flexibility in locking or resetting floating interest rates.

The Bureau maintained, however, that the same-day redisclosure requirement could benefit consumers by allowing them to have more time to evaluate the revised Loan Estimate. The Bureau also noted that creditors should be able to provide a revised Loan Estimate based on interest rate dependent charges more quickly in comparison to other types of redisclosures because creditors may not need to obtain information from other parties, such as third-party vendors. Accordingly, the Bureau proposed a next-business-day timing requirement, on the ground that providing for redisclosure on the next business day after the rate is locked could provide consumer benefits without the operational challenges to creditors presented by a same-day redisclosure requirement.

The Bureau sought comment on whether consumers could be harmed if creditors were given until the next business day to provide a revised Loan Estimate or if consumers would benefit from the same-day requirement. Additionally, the Bureau sought comment on whether a single business day is sufficient for creditors to deliver or place in the mail a revised Loan Estimate while preventing any unintended consequences, such as restricting the timing flexibility of consumers to lock the interest rate, and whether consumers would be harmed if redisclosures were permitted more than one business day after the interest rate was locked.

The Bureau received comments from industry trade associations, creditors, technology vendors, and other industry representatives addressing these proposed changes. All comments supported the proposal to relax the timing requirement, but most advocated for extending it to three business days. The Bureau received no comments that opposed the proposal or that raised concerns about extending the timing requirement beyond the next business day.

Most commenters argued that a next-business-day requirement presents many of the same operational challenges to industry as a same-day redisclosure requirement. For example, a credit union stated that one business day does not allow creditors sufficient time to address potential software issues or conduct quality control review of a revised Loan Estimate. Another industry commenter stated that it takes time to update fees and verify that the correct information is printed on the disclosures generated by older loan operating systems. A national banking trade association noted that consumers with “self-lock” capability commonly make mistakes in locking rates or attempt to lock through an incorrect channel, which requires creditors to verify the consumer's intent to lock the rate. Consumers also may leave an ambiguous voicemail or email that the creditor needs to verify is a rate lock request. This commenter explained that a single business day is not always enough time for a creditor both to verify the consumer's intent and also to issue a revised disclosure. Consequently, a next-business-day deadline could still result in creditors imposing cut-off times for consumers to lock interest rates.

Additionally, trade associations, banks, and an individual industry commenter working for a creditor stated that smaller institutions in particular may have difficulty redisclosing on the next business day after the rate lock due to staffing level constraints. Commenters noted that, in some cases, a single individual may be responsible for creating the disclosures, and staffing levels may also be affected by inclement weather, Saturday business hours, and employee training. A credit union commenter noted that the next-business-day requirement could burden small lending operations that do not have a full-time employee to prepare disclosures on Saturdays and around the holidays. Accordingly, these small creditors may require additional staff to meet the next-business-day delivery requirement.

Commenters argued that expanding the timing requirement to three business days would facilitate compliance for industry and consumer understanding because it would provide consistent timing rules for redisclosures. A bank stated that the three-business-day timeframe is the standard in operating procedures and systems and is also well-established among industry professionals. Commenters noted that a next-business-day requirement for rate locks would result in different timing requirements for rate-lock-based redisclosure as opposed to other events that permit redisclosure, such as “changed circumstances” described in § 1026.19(e)(3)(iv)(A). These other triggering events for redisclosure may occur around the time of a rate lock. Commenters noted that consumer confusion could result if a changed circumstance occurs on the same date that the rate is locked and the creditor needs to produce two different revised disclosures on two different dates. These commenters stated that the provision of two revised Loan Estimates to a consumer within the same week could cause confusion as to which Loan Estimate reflects the most recent and accurate information.

Finally, commenters questioned the benefit to consumers of receiving a revised Loan Estimate for rate-lock-related changes two business days earlier than is required for other redisclosure events, such as “changed circumstances” described in § 1026.19(e)(3)(iv)(A). Commenters argued that allowing creditors two extra business days to provide a revised Loan Estimate does not pose risks or harms to consumers. A national banking trade association stated that consumers get little benefit from receiving the revised Loan Estimate earlier because a consumer has most likely completed the shopping process by the time the consumer requests a rate lock. These commenters generally asserted that the benefit to consumers, if any, of receiving the revised disclosure earlier does not outweigh the costs associated with the requirement to provide redisclosures by the next business day.

The Bureau is adopting proposed § 1026.19(e)(3)(iv)(D), modified to extend the timing requirement to no later than three business days after the date the interest rate is locked. The Bureau also is making conforming modifications to proposed comments 19(e)(3)(iv)(D)-1 and 19(e)(4)(i)-2, which provide illustrations of the timing requirement.

The Bureau considered the comments received and determined that extending the timing requirement to no later than three business days after the interest rate is locked will reduce the burden on industry and facilitate compliance without harming consumers, and also may provide benefits to consumers. The Bureau believes that creditors would experience operational challenges in providing redisclosures by the next business day that could be alleviated by extending the timing requirement for redisclosure to three business days. Moreover, extending the redisclosure deadline to three business days after the rate is locked harmonizes the timing requirement in § 1026.19(e)(3)(iv)(D) with the other timing requirements for redisclosure. Harmonizing the redisclosure requirements could facilitate compliance and compliance monitoring and could reduce consumer confusion. Furthermore, allowing creditors to have three business days from the date the rate is locked to issue a revised disclosure would enable small creditors with limited staffing levels to prepare and review revised disclosures without the difficulties and challenges that may have arisen under the proposed rule.

The Bureau does not believe a risk of potential consumer harm arises in extending the period for redisclosure to three business days. While the Bureau expressed, in the preambles to the 2012 TILA-RESPA Proposal and the 2013 TILA-RESPA Final Rule, a concern about potential rent-seeking behavior through rate arbitrage (e.g., delaying the rate lock in order to increase the interest rate offered to the consumer or otherwise increase the spread between market interest rates and the rate offered the consumer), the Bureau also acknowledged that it had seen no evidence nor received any data or reports suggesting such a practice under the existing Regulation X disclosure practice, which employs a three-business-day deadline. The Bureau has not identified any risks to consumers—nor were any raised by commenters in response to the Bureau's request for comment on potential risks to consumers.

Accordingly, the Bureau is adopting § 1026.19(e)(3)(iv)(D) to state that, no later than three business days after the date the interest rate is locked, the creditor shall provide a revised version of the disclosures required under § 1026.19(e)(1)(i) to the consumer with the revised interest rate, the points disclosed pursuant to § 1026.37(f)(1), lender credits, and any other interest rate dependent charges and terms. The Bureau also is adopting modified versions of proposed comments 19(e)(3)(iv)(D)-1 and 19(e)(4)(i)-2 to reflect this change.

The Bureau proposed to amend § 1026.36(g)(2)(ii) to conform to the requirements adopted by the 2013 Loan Originator Final Rule. Section 1026.36(g)(2) lists the specific loan documents that must contain the loan originator's name and NMLSR ID. When the Bureau issued the 2013 Loan Originator Final Rule in January 2013, it reserved § 1026.36(g)(2)(ii) for references to the integrated disclosures the Bureau was expecting to adopt in the final rule implementing the 2012 TILA-RESPA Proposal. The disclosures referenced are those required by § 1026.19(e) and (f) as adopted by the 2013 TILA-RESPA Final Rule.

The Bureau proposed amending § 1026.36(g)(2)(ii) to include the disclosures described in § 1026.19(e) and (f), as adopted by the 2013 TILA-RESPA Final Rule. The Bureau received comments from industry and trade associations in support of this proposed change and none that opposed it or suggested further modifications. Accordingly, the Bureau is adopting § 1026.36(g)(2)(ii) as proposed.

The Bureau proposed adding § 1026.37(m)(8) to provide for a statement notifying the consumer that a revised disclosure may be provided for a construction loan in a transaction involving new construction where the creditor reasonably expects settlement to occur more than 60 days after the provision of the initial Loan Estimate.34 As explained in the proposal, § 1026.19(e)(3)(iv)(F) provides that a creditor may issue revised disclosures at any time prior to 60 days before consummation if the original disclosure clearly and conspicuously states that a revised disclosure may be provided. Except as provided by § 1026.19(f), the creditor may not issue a revised disclosure if the original disclosure did not contain such a statement.

The Bureau proposed to add new § 1026.37(m)(8), under the master heading “Additional Information About This Loan” and the heading “Other Considerations,” and new comment 37(m)(8)-1 to state that placement of the language in this section of the form satisfies the “clear and conspicuous” standard set forth in § 1026.19(e)(3)(iv)(F). The Bureau stated that it believes the § 1026.19(e)(3)(iv)(F) language is appropriately placed in this part of the disclosure mandated by § 1026.37, but sought comment on whether the language would be more appropriately placed elsewhere on the form.

The Bureau received comments from trade associations, creditors, and a technology vendor. All commenters supported the proposal. Commenters generally stated that including the language concerning construction loans in transactions that involve a new construction on the Loan Estimate should facilitate construction lending. Most agreed with the proposed content and placement of the language. A few commenters made minor suggestions for additional clarity or suggested alternative placement on the form. For example, two trade associations recommended that the Bureau provide additional clarifying language on the nature of the disclosure, as well as additional clarification regarding placement on the form or provision of a sample disclosure illustrating this language on the form.

The Bureau has considered the comments and is adopting § 1026.37(m)(8) and comment 37(m)(8)-1 as proposed, with minor wording changes for clarification. The Bureau believes that the proposed language and its placement is appropriate and allows creditors to preserve their ability to redisclose estimates for construction loans in transactions that involve a new construction, as provided in § 1026.19(e)(3)(iv)(F). With respect to the requests for additional clarifying language or a sample disclosure illustrating the language on the form, the Bureau does not believe that additional language or a new sample disclosure is necessary. The Bureau notes that proposed § 1026.37(m)(8) and comment 37(m)(8)-1 contain language already promulgated under § 1026.19(e)(3)(iv)(F) and would not require any additional consumer testing. Further, comment 37(m)(8)-1 provides that placement of the new construction language in this section of the Loan Estimate satisfies the clear and conspicuous standard set forth in § 1026.19(e)(3)(iv)(F).

Section 1026.38(g)(2) requires creditors to disclose certain prepaid items disclosed on the Loan Estimate pursuant to § 1026.37(g)(2), including prepaid interest. Neither the regulation nor the model Closing Disclosure forms in appendix H provide for disclosure of the interest rate for prepaid interest. Rather, the model forms provide that prepaid interest is to be disclosed on the Closing Disclosure as a per diem sum amount along with a range of dates, without disclosing the applicable interest rate, prescribed as: “Prepaid Interest (___per day from _____to _____).”

One industry commenter noted that comment 38(g)(2)-4, which describes the interest rate that should be used to calculate per diem interest, implies that the interest rate must be disclosed pursuant to § 1026.38(g)(2). This commenter recommended that the Bureau clarify that creditors are not required to disclose an interest rate for purposes of this disclosure.

The Bureau agrees that the interest rate should not be disclosed in the prepaid interest disclosure pursuant to § 1026.38(g)(2). Rather, creditors should disclose amounts of prepaid interest as per diem sum amounts based on the interest rate disclosed under § 1026.38(b), which is determined by § 1026.37(b). Accordingly, the Bureau is amending comment 38(g)(2)-4 to clarify that the comment addresses the interest rate that is used to determine amounts of prepaid interest, but does not require disclosure of the interest rate itself.

In developing this rule, the Bureau has considered potential benefits, costs, and impacts.35 The Bureau has consulted, or offered to consult with, the prudential regulators, the Securities and Exchange Commission, HUD, the Federal Housing Finance Agency, the Federal Trade Commission, the U.S. Department of Veterans Affairs, the U.S. Department of Agriculture, and the Department of the Treasury, including regarding consistency with any prudential, market, or systemic objectives administered by such agencies.

The Bureau is adding or amending two main provisions in this rule. First, the Bureau is amending § 1026.19(e)(3)(iv)(D) which, as adopted by the 2013 TILA-RESPA Final Rule, requires creditors to provide a revised version of the disclosures required under paragraph § 1026.19(e)(1)(i) to the consumer with the revised interest rate, the points disclosed pursuant to § 1026.37(f)(1), lender credits, and any other interest rate dependent charges and terms, on the date the rate is locked. As discussed in the section-by-section analysis above, the Bureau believes that this requirement, if unchanged, is likely to result in at least some creditors imposing cut-off times that only allow consumers to lock their interest rates only on business days and during preset hours due to the costs associated with providing the disclosure to the consumer on the date when the interest rate is locked. The Bureau believes that consumers are unlikely to choose creditors based on the creditors' policies regarding interest rate locks and, moreover, that consumers would be unlikely to know whether their creditors will allow interest rate locks at flexible times until the consumer actually attempts to lock the rate. Thus, consumers of creditors who will not allow locks at flexible times will experience inconvenience. Given that consumers are unlikely to know of this practice until they attempt to lock the rate, this practice is unlikely to be corrected or influenced by market competition.

Given these concerns, the Bureau proposed to relax the same-day timing requirement and give creditors until the next business day after the rate is locked to provide a revised version of the disclosures to consumers. As described in the section-by-section analysis above, in light of the comments received, the Bureau is instead finalizing an amendment to the provision that affords creditors three business days after the rate is locked to provide a revised version of the disclosures.

In response to the proposal, several commenters noted that the proposed next-business-day requirement presents many of the same operational challenges to industry as a same-day redisclosure requirement. These commenters suggested that three business days would provide adequate time for creditors to issue revised disclosures, but that one business day would not. No commenters suggested that extending the timing requirement beyond the next business day would impact consumers adversely.

The Bureau is adopting proposed § 1026.19(e)(3)(iv)(D), modified to extend the timing requirement to no later than three business days after the date the interest rate is locked. The change will harmonize the timing requirement in § 1026.19(e)(3)(iv)(D) with the other timing requirements for redisclosure and thus may facilitate compliance and compliance monitoring and also may reduce consumer confusion. Small creditors, in particular, may find it easier to comply with a three-day redisclosure timing requirement. Finally, the Bureau believes that the next-business-day requirement might not give creditors adequate time to confirm the consumer's intentions where the consumer's attempts to lock the rate through an incorrect channel, or the communication requesting a rate lock (e.g., a voicemail or email left with the creditor) is ambiguous. The Bureau does not possess the data necessary to estimate the impact of the change to three full business days quantitatively.

Second, the Bureau is adding a new provision that allows for a specific statement related to construction loans in transactions involving new construction to be placed on the Loan Estimate. For these loans, the 2013 TILA-RESPA Final Rule requires that creditors include a statement on the Loan Estimate in order to preserve their ability to redisclose estimates prior to settlement. However, this language is found only in § 1026.19(e)(3)(iv)(F), which governs timing and procedure, and no corresponding provision exists in the section that governs the content of the disclosures. Without this new provision, creditors will have lower incentives to originate these construction loans, especially if they believe that the Loan Estimate might need to be revised. Consumers either will not be able to get a commitment to fund construction loans until most of the uncertainty about the terms is resolved or creditors will price in a premium, to account for the creditor's inability to redisclose estimates after the initial 60 days.

The Bureau believes that both amendments, extending the time for rate lock redisclosure and adding language on new construction loans, provide options that a financial institution is free to undertake or not to undertake, and thus present no cost to creditors. The Bureau believes that both provisions present some benefits to creditors. The Bureau believes that the first provision could present both benefits and costs to consumers, while the second provision presents benefits to consumers.

This amendment provides an option to creditors: creditors may continue to provide revised disclosures on the date the rate is locked if they so choose. Therefore, some creditors will benefit from this amendment by not having to redisclose on the date the rate is locked, while other creditors may continue to redisclose on the date the rate is locked if they so choose, and are as well off as they would have been without this amendment. All creditors will enjoy increased flexibility. No creditors will face increased costs.

Under the current rule, the Bureau believes that some creditors could continue offering flexible time periods for interest rate locks, but others, for example, might choose to impose cut-off times that only permit consumers to lock interest rates on business days and at times early in the day in order to ease their compliance costs. Other creditors might change their existing practices and allow consumers to request a rate lock at any time, but only contractually lock the interest rate on the business day after the consumer requests a rate lock, instead of on the date the rate lock is requested. Consumers of these creditors could benefit from this amendment through the increased convenience of being able to lock the interest rate at more flexible times.

Consumers of creditors that would continue to allow flexibility in locking interest rates might experience a cost from the amendment: their revised Loan Estimate may not be provided until up to three business days later. However, some of these creditors may still provide a revised Loan Estimate on the date that the interest rate is locked, for example, because they have already put in place the system to provide the redisclosures on the date the rate is locked and do not want to change their systems. If the creditor does not provide the revised Loan Estimate until up to three business days later, then the potential consumer harm is the time difference between when the consumer would receive the revised disclosures.

While the Bureau does not possess any data, and is not aware of a source to obtain data, that would enable it to report the quantitative effects of this amendment, it believes any harm to consumers from the extension of the rate-lock-redisclosure timing requirement is minor. Under current law and practice pursuant to § 1024.7(f)(5), creditors have three business days from rate lock to redisclose, and the Bureau has not received any data or reports of consumer harm resulting from a three business day turnaround time for redisclosure.36

The Bureau believes that without this new provision, creditors that ordinarily originate construction loans in transactions involving a new construction would be forced either to originate only those construction loans for which the creditor is certain that no redisclosure prior to settlement will be necessary, or to price in the risk of having to cure any amounts charged over the estimates initially provided more than 60 days before settlement, absent some other type of a redisclosure triggering event. Creditors that choose the second option, including the estimated cost of cure in their pricing, risk miscalibrating the pricing and losing consumers to less risk-averse competitors or facing unanticipated costs if they are required to cure any amounts that the consumer is charged for settlement charges that exceed the initial estimated amounts. In all events, creditors risk losing consumers to other options. Accordingly, this new provision presents benefits to the creditors that decide to originate these construction loans and presents no costs.

As noted above, under the current rule, a consumer who needs a construction loan may only be able to obtain a construction loan where the creditor has priced in the risk of having to cure any amounts charged over the estimates initially provided over 60 days before settlement, which would be a cost to consumers. On the other hand, without this new provision, the Loan Estimate would have provided consumers more certainty concerning loan terms and settlement costs because creditors would be limited in their ability to redisclose and change the terms or costs of the loan. Where creditors misgauged the initial Loan Estimate, consumers might be entitled to receive a cure. However, the Bureau believes that these benefits to consumers are marginal, given that construction loans are inherently volatile and subject to events beyond the creditor's control. As a result, the Bureau believes that creditors barred from redisclosing a Loan Estimate provided more than 60 days prior to consummation would be less likely to originate such loans and that any increased certainty, where creditors were willing to commit to new construction loans well in advance of consummation, would come at the price of increased costs to consumers.

The Bureau does not possess any data, and is not aware of a source to obtain data, that would enable it to report the number of transactions affected or to quantify the extent of creditor and consumer benefits.

The amendment regarding interest rate locks could have two particular effects on covered persons with no more than $10 billion in assets. First, covered persons with no more than $10 billion in assets are more likely to benefit from this provision to the extent that redisclosure of the Loan Estimate on the date the interest rate is locked may require software and business processes upgrade costs. Larger covered persons are more likely to originate a sufficient number of transactions to make it worth implementing these changes, as opposed to choosing to offer interest rate locks to consumers only at set times during business hours.

In addition, creditors located in more than one time zone might have to offer a shorter preset adjustment time to some customers (for example, if the location of the rate lock operation is in the Eastern Time zone), but covered persons with no more than $10 billion in assets are more likely to be located in a single time zone. From this perspective, covered persons with no more than $10 billion in assets are less likely to benefit from this amendment. The Bureau does not possess data to quantify either of the two possible aforementioned effects of the provision on covered persons with no more than $10 billion in assets.

The Bureau believes that covered persons with no more than $10 billion in assets will not be differentially affected by the new provision regarding construction loans.

The Bureau does not believe that there will be an adverse impact on access to credit resulting from either of the changes adopted by this final rule. There may be an expansion of access to credit, if the second provision facilitates the making of construction loans as the Bureau anticipates.

The Bureau believes that rural areas might benefit more than urban areas from the provision for construction loans and the amendment to the existing provision for rate lock redisclosure. Competition may drive creditors to originate construction loans despite the possible redisclosure issues and to provide interest rate locks throughout the day despite the same-day redisclosure requirement. Thus, rural areas are more likely to benefit from these two provisions, to the extent that there are fewer creditors operating in rural areas than in urban areas and to the extent that competition would affect these issues.

The Regulatory Flexibility Act (the RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires each agency to consider the potential impact of its regulations on small entities, including small businesses, small governmental units, and small nonprofit organizations. The RFA defines a “small business” as a business that meets the size standard developed by the Small Business Administration pursuant to the Small Business Act. The RFA generally requires an agency to conduct an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis (FRFA) of any rule subject to notice-and-comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Bureau also is subject to certain additional procedures under the RFA involving the convening of a panel to consult with small business representatives prior to proposing a rule for which an IRFA is required.

An IRFA is not required for this rule because it will not have a significant economic impact on any small entities. The Bureau does not expect the rule to impose costs on covered persons. All methods of compliance under current law will remain available to small entities when these provisions become effective. Thus, a small entity that is in compliance with current law need not take any additional action.

Accordingly, the undersigned certifies that this final rule will not have a significant economic impact on a substantial number of small entities.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.), Federal agencies are generally required to seek the Office of Management and Budget (OMB) approval for information collection requirements prior to implementation. The collections of information related to Regulations Z and X have been previously reviewed and approved by OMB in accordance with the PRA and assigned OMB Control Numbers 3170-0015 (Regulation Z) and 3170-0016 (Regulation X). Under the PRA, the Bureau may not conduct or sponsor and, notwithstanding any other provision of law, a person is not required to respond to an information collection unless the information collection displays a valid control number assigned by OMB.

The Bureau has determined that this final rule would not impose any new or revised information collection (recordkeeping, reporting, or disclosure) requirements on covered entities or members of the public that would constitute collections of information requiring OMB approval under the PRA.

For the reasons set forth in the preamble, the Bureau amends Regulation X, 12 CFR part 1024, and Regulation Z, 12 CFR part 1026, as set forth below:

I. Background

On November 20, 2008, NOAA issued a final rule associated with the Joint Management Plan Review (JMPR) of GFNMS, MBNMS, and Cordell Bank National Marine Sanctuary (73 FR 70488). Among other things, the rule prohibited the introduction of introduced species within or into both the federal and state waters of GFNMS and MBNMS, except for the catch and release of striped bass in both sanctuaries and from existing commercial aquaculture activities within the Tomales Bay region of GFNMS. In December 2008, the Governor of California, acting pursuant to the National Marine Sanctuaries Act (16 U.S.C. 1434(b)(1)), certified that certain changes to each sanctuary's terms of designation for regulating the introduction of introduced species were unacceptable for the state waters portions of GFNMS and MBNMS. As a result of that determination, NOAA's prohibitions on introduced species currently apply only in the federal waters of MBNMS and GFNMS.

On March 18, 2013, following discussions with the state of California, NOAA re-proposed the prohibition on the introduction of introduced species within or into the state waters of GFNMS and MBNMS to provide regulatory consistency in all waters of those two sanctuaries and across the four national marine sanctuaries along the California coast (78 FR 16622). The proposal would have expanded into state waters the exception for the catch and release of striped bass and would have exempted state-permitted mariculture activities in Tomales Bay. A 60-day comment period on the proposed rule closed on May 17, 2013. (Note: MBNMS regulations use the term “aquaculture” and GFNMS regulations use the term “mariculture” to refer to the same activity; accordingly, both of these terms are used in this final rulemaking.)

NOAA received approximately 14 comments from the public and the MBNMS and GFNMS Sanctuary Advisory Councils in support of the March 2013 draft proposal. NOAA also received comments from both the California Department of Fish and Wildlife (CDFW) and aquaculture industry raising concerns that ONMS's broad definition of “introduced species” did not recognize that a number of introduced species of shellfish have been cultivated for over 100 years in Tomales Bay, within GFNMS, without significant adverse impacts to native resources. The Final Environmental Impact Statement for the 2008 Joint Management Plan Review recognized that non-native oyster species cultivated in Tomales Bay had not spread outside the aquaculture areas. Both the CDFW and aquaculture industry also commented that the proposed regulation did not allow NOAA to consider potential future permit requests from the industry for cultivation of such species. The state believed that if NOAA exercised the authority to permit such operations, in close cooperation and collaboration with state resource management entities—CDFW, California Fish and Game Commission (CFGC), and California Coastal Commission (CCC)—this would offer an opportunity for aquaculture operators and the state to demonstrate that expanding existing or developing new shellfish aquaculture operations involving introduced species of shellfish that are non-invasive would not harm sanctuary resources. Both CDFW and the aquaculture industry also expressed the view that this approach would be more consistent with Executive Order 13112 on the management of introduced species.

In response to these concerns, on March 27, 2014, NOAA amended its proposal to provide MBNMS and GFNMS the regulatory authority to authorize state permits or leases for commercial aquaculture projects in state waters involving introduced species of shellfish that the state management agencies and NOAA have determined to be non-invasive and thus would not have significant adverse impacts to sanctuary resources or qualities (79 FR 17073). Representatives from state agencies agreed with NOAA that introduced species should be managed uniformly throughout all state waters of the two sanctuaries.

NOAA received 16 comments on this revised proposal, virtually all in opposition to granting GFNMS the regulatory authority to authorize state permits for such aquaculture projects. There were no comments received objecting to this authority for MBNMS.

NOAA and the state of California have both expressed interest in entering into a Memorandum of Agreement (MOA) to define the roles of various state agencies (CDFW, CFGC, and CCC) and ONMS in a prescribed, collaborative process to determine whether an introduced species of shellfish could be considered non-invasive and potentially approved for cultivation within the state waters of either national marine sanctuary. The MOA would not supersede the legal authority of any participating agency; rather it would guide the collaborative interagency process and decision making timelines. The MOA would be necessary in response to the process outlined in NOAA's proposed rule published on March 2013 (78 FR 16622) regarding consultations for aquaculture projects in Tomales Bay, or for the process described in the March 2014 proposed rule (79 FR 17073) regarding the permit authorization process for the two national marine sanctuaries.

NOAA received few comments on the March 2013 proposed rulemaking regarding the introduced species regulation related to GFNMS. Both the GFNMS Advisory Council and several members of the public commented in strong support of the proposed rule and complimented the state agencies for recognizing the value in collaborating with NOAA to ensure state waters had additional protection from introduced species. However, the subsequent March 2014 proposed rule received considerable criticism from the public due to the proposal to allow GFNMS to authorize other agency permits, leases or licenses for new or expanded commercial shellfish aquaculture projects involving non-invasive introduced species. GFNMS does not presently have this permit authority and many commenters objected to providing that authority and increasing the risk of an invasion by an introduced shellfish species in state waters of GFNMS. In a separate rulemaking to expand GFNMS boundaries (79 FR 20981), the state of California also requested that NOAA not provide GFNMS authorization authority at this time and that NOAA conduct a separate process to allow time for local input and education regarding such a regulatory change.

As a result, NOAA will move forward with the regulatory proposals for GFNMS that were described in the March 2013 proposed rule. Specifically for GFNMS, this final rule extends the introduced species prohibition to all of GFNMS state waters, but exempts catch and release of striped bass and any existing or future commercial aquaculture project involving introduced species approved by the state of California in sanctuary waters of Tomales Bay after consulting GFNMS. NOAA's final rule is responsive to public support; eliminates the authorization authority for GFNMS that had generated considerable public concern; is consistent with the state of California's request to consider authorization authority for GFNMS in a separate process; and allows existing aquaculture projects to continue in Tomales Bay, the only area of either sanctuary where such activity presently occurs.

Presently 23.6 percent of GFNMS—all of the state waters in sanctuary (301.5 square statute miles)—is at risk from the introduction of introduced species. With this action, the vast majority of the sanctuary would be protected from such introductions of introduced species, except for less than 1 percent (10.3 square statute miles) in sanctuary waters of Tomales Bay, where commercial aquaculture of introduced species of shellfish approved by the state after consulting with NOAA, would be allowed. All other vectors of introduction of introduced species are prohibited in Tomales Bay.

Accordingly, NOAA is amending the GFNMS terms of designation to ensure that the introduction or release of an introduced species applies to the state waters of the sanctuary regardless of the means of introduction. The revised terms of designation under Article IV Scope of Regulations, Section 1 Activities Subject to Regulation, Activity (e) will read as follows (new text in quotes and deleted text in brackets and italics):

* * *

NOAA is also changing the second sentence of Article V in the terms of designation to ensure that the intent NOAA has consistently described—to regulate introduced species consistently across all four national marine sanctuaries along the coast California, in both state and federal waters—is achieved. Additionally, NOAA's final rule removes the time limitation needed to grandfather existing state-approved mariculture projects in Tomales Bay. Therefore, Article V. Relation to Other Regulatory Programs, Section 1, will read as follows (new text in quotes and deleted text in brackets and italics):

The regulation of fishing, including fishing for shellfish and invertebrates, and waterfowl hunting, is not authorized under Article IV. However, fishing vessels may be regulated with respect to vessel operations in accordance with Article IV, section 1, paragraphs (b) and (h), and mariculture activities involving alterations of or construction on the seabed, or “introduction or” release of introduced species by mariculture activities [not covered by a valid lease from the State of California and in effect on the effective date of the final regulation], can be regulated in accordance with Article IV, section 1, paragraph (c) and (e). All regulatory programs pertaining to fishing, and to waterfowl hunting, including regulations promulgated under the California Fish and Game Code and Fishery Management Plans promulgated under the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq., will remain in effect, and all permits, licenses, and other authorizations issued pursuant thereto will be valid within the Sanctuary unless authorizing any activity prohibited by any regulation implementing Article IV. The term “fishing” as used in this Article includes mariculture.

In addition, for the purpose of this regulation NOAA is codifying the northern geographical extent of Tomales Bay via the same demarcation line that is already used in the International Regulations for Preventing Collision at Sea 1972 (COLREGS): the line runs from Avalis Beach east to Sand Point. These geographic coordinates have been added as Appendix D to Subpart H of Part 922. Parts of the western and southern shoreline of Tomales Bay solely within Point Reyes National Seashore are not subject to this regulation.

Last, as described in new § 922.85, NOAA intends to enter into a Memorandum of Agreement (MOA) with the state of California to implement the Department of Fish and Wildlife's commitment to consult with NOAA whenever a future commercial shellfish aquaculture project permit application within Tomales Bay is received and being considered by the state.

NOAA received few comments on the March 2013 proposed rulemaking regarding the introduced species regulation related to MBNMS. The MBNMS Advisory Council and several members of the public commented in strong support of the proposed rule. The comments received for the March 2014 proposed rule generally focused on the GFNMS regulations, however the aquaculture industry commented in support of allowing MBNMS (as well as GFNMS) to consider a permit authorization for future commercial shellfish aquaculture projects involving non-invasive introduced species.

NOAA is implementing the regulatory proposals for MBNMS that were described in the March 2014 proposed rule. As with GFNMS, NOAA believes there is urgency and need to extend from federal waters into state waters the full protection of sanctuary regulations prohibiting the introduction or release of introduced species. Accordingly, NOAA is modifying the MBNMS terms of designation and regulations to prohibit the introduction or other release of introduced species from within or into the state waters of the sanctuary. The revised terms of designation under Article IV Scope of Regulations, Section 1 Activities Subject to Regulation, Activity (l) will read as follows (deleted text in brackets and italics):

* * *

(l) Introducing or otherwise releasing from within or into [the federal waters of] the Sanctuary an introduced species.

This final rule also provides MBNMS with the authority to authorize a valid permit, license or other authorization issued by the state of California for commercial shellfish aquaculture activities conducted in state waters of MBNMS involving introduced species of shellfish that NOAA and the state have determined are non-invasive and that will not cause significant adverse effects to sanctuary resources or qualities. MBNMS regulations already allow the ONMS Director the ability to authorize state of California (or other agency) permits for certain activities that are otherwise prohibited in the sanctuary. This authority is delegated from the ONMS Director to the sanctuary Superintendent.

NOAA intends to enter into an MOA with the state of California to describe how NOAA and the state agencies—CFGC, CDFW and CCC—will coordinate on any future proposal to develop any commercial shellfish aquaculture project in state waters of MBNMS involving a non-invasive introduced species. Similar to other MOAs with state agencies, this MOA requirement will be reflected in MBNMS regulations (see § 922.134(a)).

NOAA conducted two comment periods on separate proposed rules between March 2013 and March 2014 and received a total of 29 comments from 33 groups, agencies or individuals. The comments and responses have been segregated below to reflect the two different proposed rules.

1. Comment: Commenters generally supported the 2013 proposal, noting the cooperation of NOAA and the state agencies in coming to terms that would protect the national marine sanctuaries from the threat of introduced species.

Response: NOAA agrees there was ongoing need to address the unresolved issue of leaving the state waters portions of the two national marine sanctuaries vulnerable to introduction of introduced species. This final rule incorporates aspects of both the 2013 and 2014 proposed rules, and relies on increased collaboration among the state of California agencies and NOAA. The final rule specifically includes the ability for aquaculture operators to seek a permit from the state (within Tomales Bay in GFNMS) and from the state and NOAA (within MBNMS).

2. Comment: NOAA should revise the proposed rule to recognize that some introduced species are not a threat to sanctuary resources because they do not reproduce or otherwise affect the natural ecosystem of the sanctuary if released. NOAA should consider provisions for allowing culturing of introduced shellfish species approved by the state of California and proven to pose no significant threat to native ecological processes within the sanctuaries.

Response: National marine sanctuaries are designated, in part, to maintain “natural biological communities . . . and to protect, and where appropriate, restore and enhance natural habitats, populations, and ecological processes” (16 U.S.C. 1431(b)(3)). In short, national marine sanctuaries are mandated by law to preserve the natural character of national marine sanctuary ecosystems, similar to the manner that terrestrial ecosystems have been preserved and protected by the national parks system. Any proposed alteration of the natural biological community (e.g. introduction of a foreign species) is contrary to the purpose of sanctuary designation. Therefore, the proposed introduction of species not native to a national marine sanctuary places the burden of proof on the project sponsor to demonstrate to NOAA and state management agencies that no significant harm will result from any such proposal. NOAA acknowledges that there have been some introduced species of shellfish cultivated in GFNMS which have not, to date, had significant adverse effects on sanctuary resources. In discussions with the three state management entities with regulatory control over aquaculture projects in state waters—the Department of Fish and Wildlife, the Fish and Game Commission and the California Coastal Commission—it is clear to NOAA that state management entities are also concerned about the impact invasive, introduced species can have on an ecosystem. These agencies have taken steps to eliminate, or at least greatly reduce the risk of an invasion from such species grown in aquaculture projects.

Based on these comments and further analysis, NOAA issued a revised proposed rule in March 2014 which proposed to allow the ONMS Director to consider authorization of state permits or leases for a very limited scope of aquaculture projects—state-approved aquaculture in state waters of GFNMS (including Tomales Bay) or MBNMS involving an introduced species of shellfish that the state and NOAA determined would not be invasive or otherwise damage sanctuary resources (authority to issue an authorization is delegated from the ONMS director to a sanctuary superintendent). NOAA proposed to develop an MOA with the state agencies to lay out how such joint review would take place for any future aquaculture project. MBNMS already has authorization authority, but cannot issue a permit for an introduced species projects. GFNMS does not have authorization authority, so this would have been new authority for GFNMS.

The final rule expands MBNMS's existing authorization authority to include this limited scope of regulatory action—the potential authorization of state permits or leases that would allow development of new aquaculture projects in state waters involving introduced shellfish species the state and NOAA have determined are non-invasive and will not harm sanctuary resources or qualities. For GFNMS, NOAA has adjusted the final rule to conform to a request from the state of California as part of a separate rulemaking on boundary expansion of that sanctuary to not include authorization authority in GFNMS at this time. NOAA intends to begin implementing a separate public process, including consultation with affected agencies, on the topic of authorization after the finalization of the sanctuary expansion action.

3. Comment: The proposed rule eliminates sites for future growth of the shellfish industry in California, conflicts with other federal policies and goals, and should be withdrawn for further consideration and revision.

Response: NOAA disagrees. The final rule does not prohibit aquaculture. It prohibits the introduction of introduced species within or into nationally protected marine ecosystems. The final rule now allows the consideration of non-invasive introduced species as part of a commercial shellfish aquaculture operation in state waters of MBNMS, provided that both the state and NOAA determine cultivation of the species would have no significant adverse effects to sanctuary resources or qualities. Furthermore, the final rule includes no regulatory restrictions by GFNMS for any new or expanded aquaculture project cultivating introduced species in Tomales Bay, the only area of either sanctuary where such activity is currently conducted. Expansion would be possible in Tomales Bay, provided applicants received appropriate state permits or leases. The final rule specifically includes the ability for aquaculture operators to seek a permit from the state (within Tomales Bay in GFNMS) and from the state and NOAA (within MBNMS).

4. Comment: The proposed exemption of Tomales Bay from ONMS regulations would cause undue and additional regulatory burden on aquaculture operators seeking new permits from the state. The proposed Memorandum of Agreement between NOAA and the state agencies would cause undue delay.

Response: NOAA disagrees. The exemption to the introduced species regulation for mariculture in Tomales Bay will not cause a burden on an operator proposing a new or expanded aquaculture project. The MOA will outline and clarify agency roles and anticipated timelines in the consultation process that state agencies would normally conduct with other agencies, in this case GFNMS.

5. Comment: The proposed rule will result in elimination of green jobs and sustainable small businesses associated with shellfish aquaculture, and create a greater seafood trade imbalance.

Response: The final rule will not eliminate any existing aquaculture operation or associated green jobs in GFNMS, and exempts from sanctuary regulation the only area in that sanctuary where aquaculture presently occurs. For MBNMS, the final rule allows the sanctuary superintendent to consider authorization of a state permit or lease for a future commercial shellfish aquaculture project in state waters cultivating an introduced species that NOAA and the state determine is non-invasive and will not adversely affect sanctuary resources or qualities. Presently there are no such introduced species aquaculture projects in MBNMS and hence no jobs that could be lost due to the final rule.

6. Comment: The proposed rule is more consistent with the past decision by the California Coastal Commission regarding the final rule NOAA submitted to the state in 2008. (The current status is inconsistent with that decision, with the state waters completely unprotected from introduction of introduced species.)

Response: NOAA agrees.

7. Comment: Clarify how the proposed regulation affects research on introduced species.

Response: The final rule applies to state waters of both GFNMS and MBNMS and would make the restrictions on introduction of introduced species consistent within state and federal waters of those sanctuaries. Specifically, sanctuary regulations will prohibit introducing or otherwise releasing an introduced species into the sanctuary, and thus any research that includes or results in the release or other introduction of an introduced species would not be allowed. Regulations for both sites would not allow a superintendent to issue a permit for such research. Research on introduced species already existing within the sanctuary would not generally be prohibited unless such research involved relocation, moving, or otherwise distributing individuals or propagules of the existing introduced species.

8. Comment: The MOA between NOAA and the state of California regarding introduced species aquaculture should be circulated for public comment so the public can be assured that the MOA's design adequately satisfies the intent of the proposed rule.

Response: Interagency MOA are not generally circulated for public review before they are signed. The MOA will establish procedures for the agencies to work collaboratively pursuant to and consistent with the respective legal authorities of each participating agency. In no case will the MOA supersede NOAA's regulatory authority. The final, signed agreement will be available to the public.

9. Comment: Introduced species pose a threat to native species diversity and endangered species, ecosystem integrity, and the composition and resilience of natural biological communities as well as the commercial and recreational uses that depend on these resources. GFNMS and MBNMS should revise sanctuary regulations to consistently protect all sanctuary and associated state marine waters and habitats from negative ecological and socio-economic impacts caused by the introduction of introduced species.

Response: NOAA agrees. The introduction of introduced species to marine waters can disrupt native ecological processes, resulting in altered trophic relationships and habitat modification. Introduced species can spread unabated in areas where no natural predators exist, and eradication of these species may become impossible once they disperse. Propagation of invasive introduced species can lead to socio-economic impacts, such as changes in fisheries, fouling of infrastructure and seawater intakes, and aesthetic changes that impact tourism. The final rule prohibits all forms of introducing or releasing an introduced species into state waters of both sanctuaries, with three exceptions: (1) Within both sanctuaries, catch and release of an introduced species, striped bass, already established in marine waters and part of an active recreational fishery. State-imposed size limits could result in striped bass being caught and released while fishing in either sanctuary; (2) within GFNMS, existing commercial shellfish aquaculture operations in Tomales Bay permitted by the state that cultivate introduced species which have not, to date, invaded native ecosystems and caused significant adverse harm to sanctuary resources and qualities; and, (3) within MBNMS, introduction of introduced species from commercial shellfish aquaculture projects in state waters that NOAA and the state have determined are non-invasive and will not cause adverse harm to sanctuary resources and qualities. NOAA will work very closely with the state resource management entities to ensure any new, expanded or future aquaculture project will not result in a release of an invasive species that will cause harm to sanctuary, and state, resources. All other forms of introduction or release of an introduced species will be strictly prohibited.

10. Comment: Regulation of introduced species by MBNMS and GFNMS should include provisions for continued catch and release of striped bass (Marone saxatilis), a fish stock historically managed by the California Department of Fish and Wildlife (CDFW).

Response: As in the original final rule issued on November 20, 2008, catch and release of striped bass (Marone saxatilis) in both state and federal waters of GFNMS and MBNMS is exempt from this regulation (73 FR 70488).

11. Comment: The proposal to allow authorization of state-permitted commercial shellfish aquaculture operations in GFNMS would give deference to the aquaculture industry over the national marine sanctuaries' resource protection mandate.

Response: As a result of the Governor's objection in 2008, there are currently no sanctuary regulations protecting state waters of these two national marine sanctuaries from the introduction of introduced species. This final rule closes that regulatory gap and prohibits the introduction of introduced species in the state waters of the sanctuaries from all other pathways of introductions except for the three exceptions described in response to comment 9 above. For GFNMS, the final rule does not add authorization authority to that sanctuary's regulations. However, any expanded or new aquaculture operation within Tomales Bay in GFNMS would have to be permitted by several state resource management agencies, who would consult with GFNMS before issuing any permit. In addition, the authority to authorize another agency's permit, which MBNMS could exercise through this final rule, gives complete discretion to the MBNMS superintendent to approve with conditions or deny a potential future aquaculture project in state waters of MBNMS cultivating introduced shellfish species that NOAA and the state have found to be non-invasive and to not adversely affect sanctuary resources and qualities.

12. Comment: NOAA should not adopt the proposed authorization authority because it provides essentially a rubber stamp approval to future activities involving introduced species.

Response: NOAA disagrees. The final regulation allows MBNMS to consider the authorization of aquaculture operations within very narrow parameters (to approve, condition, or deny state issued permits for commercial shellfish aquaculture in state waters of MBNMS determined by NOAA and state management agencies to be not invasive and not cause significant adverse effects to sanctuary resources or qualities). Authorization authority has existed in MBNMS and five other national marine sanctuaries for many years and has been used successfully and consistent with the purposes and policies of the NMSA.

13. Comment: The authority to authorize other agencies' permits found in 15 CFR 922.49 is deficient in that it lacks administrative procedure for public oversight and comment, and for public appeals, and it is not directly connected to the conditions for sanctuary permits found in 15 CFR 922.83 and 15 CFR 922.133

Response: The final rule does not add permit authorization authority to GFNMS regulations at this time. For MBNMS, which has had authorization authority since 1992, the issues of public review have not arisen in large part because projects MBNMS has considered for authorization have had extensive public review by another local, state or federal agencies.

14. Comment: NOAA should not adopt authorization authority because this adds another layer of bureaucracy to an already-complicated, multi-state agency review process, impeding future growth of the industry.

Response: NOAA disagrees that the authorization process adds another layer of bureaucracy. The authorization process is intended to improve administrative efficiency by allowing NOAA to review and approve, deny or condition other agencies' permits. This simplifies the application process for a permit applicant and promotes cooperative efforts among NOAA and other regulatory agencies.

15. Comment: NOAA should not “grandfather” existing or heretofore undisclosed leases, permits, and pending modifications of existing activities within Tomales Bay. NOAA should obtain full and complete copies of those leases before the effective date of the regulation, and they should be identified in the Federal Register announcement at the time the final rule is published.

Response: The grandfathering of existing aquaculture leases has been removed from the final rule and will not occur within GFNMS. Instead, NOAA is exempting from regulation the sanctuary waters of Tomales Bay, where existing aquaculture projects occur, as described in the 2013 proposed rule. In MBNMS there are no existing aquaculture operations, thus there are no undisclosed leases or permits and no projects will be grandfathered. The existing state review process continues in these areas and any major state action on an aquaculture operation in Tomales Bay will proceed consistent with existing public review processes, including public hearings before the California Fish and Game Commission or the California Coastal Commission.

16. Comment: The MOA between NOAA and the state of California, and NOAA's authorization authority regarding introduced species aquaculture, should in no way expand from bivalve mariculture to finfish aquaculture.

Response: NOAA agrees. The authorization authority for MBNMS is narrowly defined to only allow MBNMS to consider authorizing state of California permits or leases for commercial shellfish aquaculture projects in state waters involving introduced species of shellfish that the state management agencies and NOAA have determined will not have significant adverse impacts to sanctuary resources or qualities. For Tomales Bay, the state will continue to have primary jurisdictional authority for aquaculture, consulting with GFNMS before issuing any new permits or leases. All other introductions of introduced species in state and federal waters of GFNMS and MBNMS, except for the catch and release of striped bass, are prohibited. Furthermore, the state of California has a current legislative prohibition on non-native finfish aquaculture in state waters.

17. Comment: Too much of the proposal is predicated on promises of future collaborations and agreements. Recent history suggests that the state is incapable of shared jurisdictional authority when managing aquaculture.

Response: NOAA believes the collaborative process developed for both GFNMS and MBNMS will allow the state and NOAA to work cooperatively to prevent the introduction of introduced species into state waters of the sanctuaries. The state will consult with GFNMS prior to issuing any new permits in Tomales Bay. However, in all other state waters of GFNMS, introduced species aquaculture will not be allowed. In MBNMS, the state and NOAA will each have jurisdiction over commercial aquaculture projects in state waters involving introduced species of shellfish.

18. Comment: NOAA should not adopt the proposed rule (March 2014) to consider permitting aquaculture projects in GFNMS with non-invasive, introduced species because lack of scientific data on the significant impacts of invasive species, a lack of data on native and non-native species abundance and condition, and on cross-vector influences.

Response: NOAA agrees that impacts from introduced species can pose a major threat to sanctuary resources and qualities. However, in Tomales Bay, the only location in sanctuaries offshore of California where commercial cultivation of introduced species currently occurs, state management agencies have regulated these types of aquaculture operations for many years. In this final rule, NOAA is not expanding the ability to develop new introduced species aquaculture projects in GFNMS beyond Tomales Bay and will defer to state management agencies for aquaculture projects within Tomales Bay.

19. Comment: NOAA has not adequately complied with the National Environmental Policy Act for proposed rule because it relied on analysis from 2008, and did not conduct a new environmental review.

Response: NOAA is relying on the FEIS as prepared for the 2008 JMPR because the baseline conditions have not changed. That is, there has been no change in the number of mariculture operations or leases in Tomales Bay and NOAA is unaware of any change in the environmental effects of those species in Tomales Bay. With this rule, the introduction of introduced species, including the use of non-native shellfish in commercial aquaculture operations, is being prohibited in state waters of both sanctuaries, with the exception of Tomales Bay. The 2008 FEIS specifically identified that the prohibition of the introduction of introduced species would lead to beneficial impacts to Biological Resources and Water Quality Resources and would not cause any adverse impacts to existing shellfish aquaculture operations.

The final rule adopts a regulatory regime slightly different from that reviewed in 2008 because it will allow commercial shellfish aquaculture to continue using introduced species in Tomales Bay that have been shown to be non-invasive and will allow the State of California to demonstrate on a case-by-case basis with NOAA concurrence that commercial shellfish operations using certain non-invasive shellfish species may be safely established in state waters of MBNMS. NOAA believes this action is within the range of alternatives considered in 2008 and will result in nearly the same level of beneficial impacts that were identified in 2008. Further, NOAA is adopting final regulations that would not affect existing aquaculture projects in Tomales Bay that are conducted pursuant to a valid lease, permit, license or other authorization issued by the state of California.

NOAA has added authorization authority for MBNMS to consider authorizing state of California permits or leases for commercial aquaculture projects in state waters involving introduced species of shellfish that the state management agencies and NOAA have determined will not have significant adverse impacts to sanctuary resources or qualities. This process will require additional NEPA and California Environmental Quality Act (CEQA) review to be triggered on a case by case basis if new aquaculture projects were to be proposed in the state waters of MBNMS. NOAA has complied with NEPA for this action.

20. Comment: Some commenters expressed concerns that cultivated species currently not considered by the state of California to be invasive, such as Pacific oysters (Crassostrea gigas), have the potential to be invasive in other environments and situations, and may become invasive in California under global climate change scenarios where warmer waters allow unassisted reproduction.

Response: NOAA is also concerned about how climate change will impact introduced species aquaculture. In this action, NOAA is implementing a final rule which does not allow introduced species aquaculture in state waters of GFNMS except in Tomales Bay and only with a state lease or permit. Aquaculture operators will be required to follow the state's public process through the CA Fish and Game Commission and the CA Coastal Commission. The results of studies in the United States and elsewhere as to how species may become invasive will be considered by the state and NOAA in making any future determinations.

21. Comment: NOAA's final action needs to account for the likelihood that these shellfish species would themselves attract or carry other exotic species, thereby causing environmentally detrimental impacts.

Response: In GFNMS, only those aquaculture operations in Tomales Bay with a valid lease or permit from the state of California would be exempt. If a commercial shellfish aquaculture project involving introduced species is proposed in MBNMS, as part of the permit authorization state management agencies and NOAA must determine the project will not have significant adverse impacts to sanctuary resources or qualities. In this review process, NOAA and state management agencies will consider not only the proposed introduced species themselves, but also the threats from parasites, project siting, the financial capability of the applicant, among other factors.

22. Comment: NOAA should clarify how it or the state will monitor and prevent accidental introductions of diseases, parasites and hitch-hikers on aquaculture species within sanctuary waters. No protocol for monitoring or management of new or expanded aquaculture operations is referenced in the proposed regulation amendment.

Response: For Tomales Bay in GFNMS, commercial shellfish aquaculture will remain under the primary management authority of state management agencies and their public processes at this time. The MOA will outline how GFNMS can raise concerns to the state and seek their inclusion of permit conditions that ensure adequate enforcement and monitoring. For state waters of MBNMS, ONMS may condition or deny a potential permit authorization request if NOAA finds the applicant and the state management agencies do not adequately monitor and manage a proposed commercial shellfish aquaculture project involving introduced species. Monitoring and enforcement protocols could be added to permit conditions as part of an authorization, and would ideally be discussed, reviewed, and planned for on a case by case basis, and considered during the NEPA and CEQA process.

23. Comment: NOAA's proposed rule does not recognize the regulatory role of the National Park Service (NPS). NPS national policy prohibits introductions of non-native species in NPS waters, including waters which overlap with national marine sanctuaries, the introduction of non-native species within national parks is inconsistent with the NPS Organic Act of 1916 (as amended and supplemented).

Response: NOAA and NPS have some jurisdictional overlap in GFNMS. Where there is jurisdictional overlap, NOAA's final regulations in this action do not usurp other federal regulations, including those of the National Park Service. As discussed in the preamble to this rule above, due to the previous Governor's objection in December 2008, there are currently no sanctuary regulations regarding introduced species in state waters of GFNMS and MBNMS (including waters adjacent to national parks). NOAA believes this final action will close that regulatory gap by prohibiting virtually all of the mechanisms that could result in the introduction of an introduced species. The final rule will only allow introduced species shellfish aquaculture within sanctuary waters of Tomales Bay operating with a valid permit of lease from the state. This final action will support the goals of the National Park Service to prevent the introduction of introduced species.

24. Comment: NOAA's proposed action weakens the authority of the national marine sanctuaries to control invasive non-native species that potentially may be introduced by new aquaculture operations. In so doing, NOAA delegates to the state the authority to define invasive species and bypasses a process for environmental review and compliance, including the participation of other potentially impacted federal agencies, such as national parks as well as the public.

Response: NOAA disagrees. Currently, there are no introduced species regulations in state waters of GFNMS or MBNMS and this final rule provides that regulatory protection by prohibiting the introduction of introduced species in all state waters of MBNMS and nearly all state waters of GFNMS. Any state review of an existing, expanded or new aquaculture project in Tomales Bay in GFNMS will include compliance with CEQA, consultation with affected agencies, and public review, including hearings, as prescribed by agency procedures when issuing leases and permits. Any new project in MBNMS will also require compliance with NEPA. While the final rule exempts the need for a permit authorization from GFNMS in Tomales Bay it includes extensive consultation with GFNMS prior to the state's issuing permits or leases as outlined in the MOA. Therefore, additional public review consistent with state and federal law and procedures will be provided and comments considered on any such action in either sanctuary, if proposed in the future.

25. Comment: NOAA should require ONMS review for any change to an existing lease where the grower proposes to cultivate new non-native shellfish species on their farm.

Response: The grandfathering option for GFNMS discussed in the March 2013 proposal was adopted by NOAA and will exempt existing and future commercial shellfish aquaculture operations in Tomales Bay with a valid state of California permit or lease. The MOA will outline how the state will consult with GFNMS on expansion of existing leases or future proposals to cultivate new species.

26. Comment: NOAA should extend the short comment period of the amended proposed rule. The release of the Federal Register notice reopening this issue, and the subsequent comment deadline for this reversal by the agency was conducted in such manner as to preclude the public from having timely access to the necessary information and supporting documents, and the necessary time for review.

Response: The comment period for the March 2013 proposed rule was 60 days and generated very few public comments. The comments received in 2013 were mostly in support—including those received from the GFNMS and MBNMS Sanctuary Advisory Councils—of NOAA's proposed action which is being implemented for GFNMS in this final rule. Based on this information, NOAA did not anticipate receiving many public comments for the March 27, 2014 amended proposed rule, and therefore NOAA established a 15 day comment period. Upon receiving a request for an extension, NOAA re-opened the comment period for an additional 24 days until May 5, 2017. Based on the comments received during these two comment periods, NOAA believes this final rule-making has provided the public with timely involvement and the opportunity to review and comment on this action.

27. Comment: The rule is premature because this current NOAA comment period predates a pending state of California Programmatic Environmental Impact Report (pEIR) on aquaculture issues expected to be inclusive of many of the same types of invasive species questions brought forward by expanded aquaculture proposals in state waters.

Response: This comment is beyond the scope of this rulemaking. The state's programmatic environmental impact report being prepared pursuant to CEQA is unrelated to this final action promulgated by NOAA. This regulation has a long history, and is designed to extend existing sanctuary introduced species prohibitions from federal waters into state waters of GFNMS and MBNMS. Future state action may further assist the state and federal regulatory agencies in protecting coastal waters from the invasive impacts of introduced species.

28. Comment: NOAA should not take any action on the introduced species rule until the public hearings and written comments on the draft environmental impact Statement (DEIS) and accompanying regulations for boundary expansion for GFNMS has been subjected to sufficient public review.

Response: This comment is beyond the scope of this rulemaking. However, we note the proposed rule for GFNMS expansion recognizes that there is a separate rulemaking process the introduced species. The rules will be codified accordingly, in the order they are finalized.

29. Comment: NOAA should specifically exclude oil drilling from the list of otherwise prohibited activities that could be authorized by NOAA (922.132(1)) within GFNMS.

Response: This comment is beyond the scope of this rulemaking. Nevertheless, as noted previously, the Final Rule does not add authorization authority to GFNMS regulations.

Section 301 of the NMSA (16 U.S.C. 1434) provides authority for comprehensive and coordinated conservation and management of national marine sanctuaries in coordination with other resource management authorities. When changing a term of designation of a National Marine Sanctuary, section 304 of the NMSA requires the preparation of a draft environmental impact statement (DEIS), as provided by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and that the DEIS be made available to the public. NOAA prepared a draft and final management plan and a draft and final EIS on the initial proposal and final rule for the Joint Management Plan Review (JMPR). Copies are available at the address and Web site listed in the Addresses section of this proposed rule. Responses to comments received on March 18, 2013 proposed rule and on the March 27, 2014 proposed revision to the regulations have been analyzed and published in the preamble to this final rule and discussed in the record of decision. NOAA has made available the 2008 final environmental impact statement (FEIS) for the JMPR that was previously available to the public, and which analyzes the environmental effects of the introduced species regulations as they are now finalized by this action. (For a copy of the FEIS, please visit www.sanctuaries.noaa.gov/jointplan.)

In the 2008 FEIS for the JMPR, NOAA identified a preferred action which was to modify the terms of designation and regulations for GFNMS and MBNMS to, among other things, prohibit the introduction of introduced species (with limited exceptions) throughout the sanctuaries, and NOAA endorses that action as re-proposed and as amended in the notices of proposed rulemaking associated with this final rule. The 2008 FEIS specifically identified that the prohibition of the introduction of introduced species would lead to beneficial impacts to Biological Resources and Water Quality Resources and would not cause any adverse impacts to existing shellfish aquaculture operations. The final rule adopts a regulatory regime slightly different from that reviewed in 2008, however, this action is within the range of alternatives considered in 2008 and will result in nearly the same level of beneficial impacts that were identified in 2008. Further, NOAA is adopting final regulations that would not affect existing aquaculture projects in Tomales Bay that are conducted pursuant to a valid lease, permit, license or other authorization issued by the state of California. NOAA further believes there has not been a significant change to the environmental conditions or the potential environmental effects of the preferred alternative. NOAA has determined that a supplement to the FEIS is not required for this final action.

Pursuant to a MOA that would be executed, the state would consult with NOAA prior to any new or amended state-issued lease and permits. In addition, through this action NOAA would exercise limited authorization authority with respect to commercial shellfish aquaculture activities in state waters of MBNMS involving cultivation of introduced species of shellfish that NOAA and the State have determined are non-invasive and would not cause significant adverse effects. Any future proposal or amendments to existing state leases for an aquaculture project involving cultivation of introduced shellfish species would undergo environmental review pursuant to the California Environmental Quality Act (CEQA) and NEPA for MBNMS and CEQA for GFNMS on a case-by-case basis to consider project-specific effects of that action. NOAA may refuse to authorize a project in MBNMS that would not comply with terms or conditions required by NOAA. 15 CFR 922.49(a).

Copies of the FEIS, the record of decision and other related materials that are specific to this action are available at http://sanctuaries.noaa.gov/jointplan/feis/feis.html, or by contacting NOAA at the address listed in the For Further Information section of this final rule. Comments regarding the introduction of introduced species portion of the original FEIS are analyzed and responded to above, in the Response to Comments section.

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

NOAA has concluded that this regulatory action falls within the definition of “policies that have federalism implications” within the meaning of Executive Order 13132. NOAA's previous proposed rule and subsequent amended proposed rule were conducted in cooperation with the State of California, and pursuant to Section 304(b) of the NMSA. Since the proposed rule was issued on March 18, 2013, further consultations have occurred with the State of California, and the proposed changes contained in the March 27, 2014 notice reflect cooperative negotiations reached in those consultations. It is NOAA's view that, due to these negotiations, the state will not object to the amended regulations finalized in this action. In keeping with the intent of the Executive Order, NOAA consulted with a number of entities within the state which participated in development of the initial rule, including but not limited to, the California Coastal Commission, the California Department of Fish and Wildlife, and the California Natural Resources Agency.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration at the proposed rule stage that this rule would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was discussed in the proposed rule issued on March 18, 2013, and the March 27, 2014 amended proposal, where the conclusion remained the same. No comments were received on that certification. No other law requires a regulatory flexibility analysis so none is required and none has been prepared.

This final rule does not contain information collections that are subject to the requirements of the Paperwork Reduction Act. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

Accordingly, for the reasons set forth above, 15 CFR part 922 is amended as follows:

The Coast Guard will enforce the safety zone listed in 33 CFR 165.151 on the specified date and time as indicated in the following Table. If the event is delayed by inclement weather, the regulation will be enforced on the rain date indicated in the Table.

Under the provisions of 33 CFR 165.151, the fireworks display listed above in DATES is established as a safety zone. During the enforcement period, persons and vessels are prohibited from entering into, transiting through, mooring, or anchoring within the safety zone unless they receive permission from the COTP or designated representative.

This document is issued under authority of 33 CFR 165 and 5 U.S.C. 552 (a). In addition to this notification in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners or marine information broadcasts. If the COTP determines that the safety zone need not be enforced for the full duration stated in this document, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

Categories and entities potentially regulated by this action include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action.1 This action requires states to report their emissions to us. It is possible that some states will require facilities within their jurisdictions to report emissions to the states. To determine whether your facility would be regulated by this action, you should examine the applicability criteria in 40 CFR 51.1. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

In addition to being available in the docket, an electronic copy of this final rule will also be available on the Worldwide Web (WWW) through the Technology Transfer Network (TTN). Following the Administrator's signature, a copy of this final rule will be posted on the TTN's policy and guidance page for promulgated rules at the following address: http://www.epa.gov/ttn/chief/. The TTN provides information and technology exchange in various areas of air pollution control. If more information regarding the TTN is needed, call the TTN HELP Line at (919) 541-4814.

Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of this final rule is available by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by April 20, 2015. Under section 307(d)(7)(B) of the CAA, only an objection to this final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements established by this action may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce these requirements.

The EPA proposed amendments to the AERR on June 20, 2013 (78 FR 37164). In today's action, the EPA is amending the emissions inventory reporting requirements in 40 CFR part 51, subpart A, and in 40 CFR 51.122. This action aligns the point source reporting threshold for Pb emissions sources in the AERR with the National Ambient Air Quality Standard (NAAQS) for Lead (73 FR 66964, November 12, 2008) and the associated Revisions to Lead Ambient Air Monitoring Requirements (75 FR 81126, December 27, 2010). These amendments further improve the rule to both reduce burden on air agencies as well as make minor technical corrections that reflect what has been put into practice through existing electronic reporting implementation.

Emissions inventories are critical for the efforts of state and federal agencies to attain and maintain the NAAQS for criteria pollutants, such as ozone, particulate matter (PM) and carbon monoxide (CO). To assist these efforts, the EPA initiated an effort in the early 1990's to develop a central repository of inventory data for all states that is now known as the National Emissions Inventory (NEI). Emissions inventory data reported electronically under this rule are stored in the Emissions Inventory System (EIS) database and are used by the EPA and by states for air quality modeling, tracking progress in meeting CAA requirements, setting policy, and answering questions from the public. States often use the NEI as a starting point in developing emission inventories for support of state implementation plans (SIPs).

Pursuant to its authority under sections 110 and 172 of the CAA, the EPA has required SIPs to include inventories containing information regarding criteria pollutant emissions and their precursors (e.g., volatile organic compounds (VOC)). The EPA codified these inventory requirements in subpart Q of 40 CFR part 51 in 1979 and amended them in 1987.

The 1990 Amendments to the CAA revised many of the CAA provisions related to the attainment of the NAAQS and the protection of visibility in Class I areas. These revisions established new periodic emission inventory requirements applicable to certain areas that were designated nonattainment for certain pollutants. For example, section 182(a)(3)(A) required states to submit an emission inventory every 3 years for Moderate ozone nonattainment areas beginning in 1993. Similarly, section 187(a)(5) required states to submit an inventory every 3 years for Moderate CO nonattainment areas.

Prior regulations supporting the annual reporting needed for the NEI included the Consolidated Emissions Reporting Rule (CERR), which was promulgated by EPA in 2002, and codified in 40 CFR part 51, subpart A. These requirements replaced the requirements previously contained in subpart Q of 40 CFR part 51, expanding their geographic and pollutant coverages, while simplifying them in other ways. The CERR was the precursor to the AERR. The original AERR was promulgated in 2008 with the intent of streamlining various reporting requirements including those of section 182(a)(3)(A) for ozone nonattainment areas and section 187(a)(5) for CO nonattainment areas, those under the NOX SIP Call (40 CFR 51.122), and the annual reporting requirements of the CERR.

This action lowers the threshold for reporting Pb emissions sources as point sources, eliminates the requirement for reporting emissions from wildfires and prescribed fires, and replaces a requirement for reporting mobile source emissions with a requirement for reporting the input parameters that can be used to run the EPA models that generate mobile source emissions estimates. This action also reduces the reporting burden on state, local, and tribal agencies by removing the requirements to report daily and seasonal emissions as part of their AERR submissions, while clarifying the requirement to report these emissions under pollutant-specific regulations (i.e., the NOX SIP Call, the Ozone Implementation Rule, and relevant CO maintenance plans). This action also modifies some emissions reporting requirements which we believe are not necessary or are not clearly aligned with current inventory terminology and practices.

With this action, the EPA is lowering the point source threshold for Pb emissions to 0.5 tons per year (tpy) of actual emissions. The purpose of this change is to match requirements of the Pb Ambient Air Monitoring Requirements rule (75 FR 81126), which required monitoring agencies to install and operate source-oriented ambient monitors near Pb sources emitting 0.50 tpy or more by December 27, 2011. The EPA considers that the ambient monitoring rule threshold is 0.5 tons of actual emissions, therefore, this criterion is based on actual emissions rather than the potential-to-emit approach taken for other criteria pollutant and precursor thresholds. All criteria pollutants and precursors will continue to be required to be reported for any source meeting this new threshold for Pb.

With this action, the EPA is removing the requirement for reporting emissions for wildfire and prescribed fires. States may report these emissions voluntarily as event sources in the EIS, but states no longer have the option of reporting these emissions as nonpoint (countywide) sources. The EPA already provides nationwide estimates for wildfires and prescribed fires using information it has, so requiring states to also report these data is not necessary. States are encouraged to review and comment on the EPA's estimates, or to report their own estimates if they so choose.

This action also clarifies that agricultural fires continue to be required to be reported, and that these sources must be reported as nonpoint sources. Agricultural fires cannot be reported as point sources or as event sources.

With this action, the EPA is finalizing its proposal that states will no longer be required to submit mobile source emission estimates, but instead will submit the inputs for emissions models of onroad and nonroad mobile sources. This change applies to all states except California. Because California uses other models to reflect their additional regulatory requirements not reflected by the EPA models, California is required to report emissions values. The EPA models in use at the time of this action are the Motor Vehicle Emissions Simulator (MOVES) and the nonroad equipment model called NONROAD. The change to require model inputs from all states except California allows the EPA to use these data to run the latest version of the applicable models, even if those versions have been finalized after the model input data were collected. It also allows the EPA to generate consistent base year and future year emissions estimates, which the EPA needs to accurately assess benefits for new regulations and to make other regulatory decisions that use air quality modeling. In addition, this action makes voluntary the reporting of emissions values for onroad and nonroad mobile sources for all states except California.

With this action, the EPA is removing the requirements from the AERR that states report daily and seasonal emissions, while still permitting states to submit such data voluntarily to the EIS. States may still elect to meet the emissions reporting requirements of the NOX SIP Call (40 CFR 51.122), the Ozone Implementation Rule (40 CFR part 51, subpart X), or the CO reporting required by the relevant CO maintenance plans through the AERR, but they are no longer required to do so. Each of these three underlying provisions already requires states to show and track consistency with the emissions projections contained in the approved SIP submissions, which can include daily or seasonal data, and also contains requirements for public review of SIP revisions. The EPA has eliminated a requirement in the AERR that, given specific public review and documentation requirements of those rules, made compliance with those rules through AERR submissions difficult. Thus, in implementing this change, the EPA is reducing burden for states that were having difficulty meeting both those SIP requirements and the previous additional AERR requirements, which were intended to meet the SIP requirements, but did not do so in all cases. States may continue to meet these SIP requirements separately or use the AERR submission to do so, as long as the AERR submission can meet these SIP requirements.

However, as explained more fully below, in light of comments received, we have determined that additional changes to some of the underlying SIP implementation provisions are necessary to ensure that the requirement to report the necessary daily and seasonal emissions is included in those underlying rules. Specifically, while the final AERR revision rule removes ozone season emissions and summer day emissions definitions and associated reporting requirements from the AERR provisions in 40 CFR Subpart A, we are also finalizing changes that will move the relevant definitions and reporting requirement for summer day emissions to the ozone reporting requirements in the Ozone Implementation Rule (40 CFR 51.900 (definitions) and 51.915 (inventory requirements)) and for ozone season emissions and summer day emissions to the NOX SIP Call reporting requirements in 40 CFR 51.122.

The previous version of the AERR was finalized prior to the EPA finalizing the design details of the EIS data system that is used to collect and store the required data. With this action, the EPA is changing the tables of pollutants and data elements included in Appendix A to be consistent with the EIS through removals, name changes, and additions. Overall, these changes reduce burden for states, though, as noted below in the summary of EPA's responses to comments on the proposed rule (which is based on the comprehensive Response to Comments document that is available in the docket for this rule), some changes may add a small amount of additional burden for some states.

The EIS data system was designed such that data elements that had not changed from one reporting period to the next did not need to be re-submitted, and only data elements that changed needed to be reported. This streamlined reporting structure, along with the terminology changes, requirements deletions, and other consistency revisions described above, created a need for the EPA to revise Tables 1, 2a, 2b and 2c in Appendix A of the AERR. Table 1 still defines the emissions thresholds that determine the Type A point source emissions required to be reported each year. In addition, Table 1 now includes the thresholds used to determine the Type B sources required to be reported as point sources every third year. These Type B point source thresholds had previously been included as part of the definition of the term “point source.” In the revised Table 1, we have clarified the name of the two PM pollutants by including “primary.” This is consistent with the existing list of required pollutants described in 40 CFR 51.15.

Table 2a has been revised to include only the point source facility inventory data elements that are required to be in EIS, without regard to either the every-year or every third year reporting cycles, since these elements need only be reported for any new point source or when any change occurs at an existing point source. The emissions data element requirements for point sources from Table 2a have been combined with the emissions requirements for the other three emissions source types in Table 2b. These changes have allowed the information previously contained in Table 2c to move to Table 2b and for Table 2c to be eliminated. We have also eliminated the separate columns for “Every-year reporting” and “Three-year reporting” from Tables 2a and 2b. Those reporting cycle distinctions were only applicable to Type A point sources, and with the revisions, Table 1 now describes all of the necessary distinctions.

This action adds Facility Site Status, Release Point Status, and Unit Status data elements to the Facility Inventory data elements listed in Table 2a, along with the year in which any of these three data elements change from one status to another. The operating status is used by the states to indicate whether emissions reports should continue to be expected for a facility, emissions unit, or a release point, or the reason why emissions will not be reported after the year indicated.

We are also adding Aircraft Engine Type, Unit Type, and Release Point Apportionment Percent to Table 2a. The addition of Aircraft Engine Type is to support the EPA's interest in the EPA's calculating and using point source emissions from aircraft at airports. This change does not imply a requirement for states to submit aircraft as point sources. The EPA provides landing and takeoff data for state review and encourages the states to review and update those data in support of EPA's calculation of aircraft emissions. Such review would meet the states' reporting obligation for aircraft emissions. However, the states' requirement can also be met by submitting aircraft emissions as nonpoint sources. If states choose to submit their own point source estimates, this change means they would have to provide the Aircraft Engine Type code and the source classification code (SCC) to completely specify the emitting process.

Unit Type is being added to more easily and explicitly identify the type of emission unit producing the emissions than can be inferred from the SCC alone. To reduce burden associated with this new field, we have also limited the existing requirement for reporting the Unit Design Capacity for all units to only reporting capacities for a limited number of key unit types (e.g., boilers). The Unit Type data element is necessary for the EIS data system to be able to confirm the presence of a value for the Unit Design Capacity element, since the Unit Design Capacity element is required only for certain Unit Types (e.g., boilers).

The Release Point Apportionment Percent is being added to officially implement a feature added to the EIS at the request of some state data reporters. This data element allows states to split the emissions from a single emission process to multiple release points by reporting the percentage of emissions going to each release point.

This action adds five new data elements to Table 2b, of which four are minor extensions or clarifications of existing requirements necessary to avoid ambiguity in the EIS data system. The EPA believes that these new items will not add a significant new information collection burden. As described in the response to comments summary below and the comprehensive Response to Comments document that is available in the docket for this rule, the EPA provides options to states to greatly reduce any burden for these additional data elements. The four data elements are: Shape Identifiers, Emission Type, Reporting Period Type, and Emission Operating Type.

Shape Identifiers are a more detailed method of identifying the geographic area for which emissions are being reported for nonpoint sources, instead of using the entire county. The EPA believes that they are needed for a small number of nonpoint source types, such as rail lines, ports, and underway vessels, which occur only in a small and identifiable portion of a full county. Although states are still required to report emissions for these sources, this action also adds an option for states to meet the reporting requirement by accepting the EPA's estimates for the sources for which the EPA makes calculations. For the nonpoint sources needing the more geographically-detailed emissions with Shape Identifiers, the EPA provides tables describing the geographic entities and their Shape Identifiers and has emissions estimates for each of the entities. If states choose to submit their own estimates, they must now provide the extra geographic detail described by the Shape Identifiers.

Emission Type is a code that is a further level of detail of the existing required element SCC, which describes the emitting processes. We have also revised the definition of this term in 40 CFR 51.50, since the previous definition erroneously described the Reporting Period Type and not the Emission Type.

Reporting Period Type is a code that identifies whether the emissions being reported are an annual total or one of the seasonal or daily type emissions that we are proposing to make optional, although reporting of such emissions may still be required as part of the state's implementation of a NAAQS. This addition replaces the erroneous use of the name “Emission Type” to describe this data element in the previous version of the AERR, as described above. The Reporting Period Type is necessary for states to distinguish the required annual emissions from the optional sub-annual emissions.

Emission Operating Type is a data element for point sources that indicates whether the emissions are associated with routine operations, or a shutdown, startup, or upset. It is necessary for the data system to distinguish between the minimally required routine emissions and the other optional operating types that the EIS can also accept.

This action also adds the Emissions Calculation Method as an additional fifth data element to the Table 2b emissions requirements. This element is required for point and nonpoint sources. It is a code that indicates how each emissions value was estimated or determined (e.g., by continuous emissions monitor, by a stack test, or by an average emission factor). The EPA has determined that this element is needed to evaluate the adequacy of any emissions value for the stated purposes of the NEI and to allow the EPA to select the most reliable emissions value where more than one is available. State reporters should have this value easily available to them because they are selecting the calculation method, so adding it to their electronic submittals should cause only a minimal amount of added burden.

This action revises the data element names and clarifies the usage conventions for four data elements related to emissions control devices for the point source facility inventory elements. The single Percent Control Approach Capture Efficiency and a Percent Control Measures Reduction Efficiency for each pollutant are now required, where controls exist. These elements replace the previously required Primary Capture and Control Efficiency and Total Capture and Control Efficiency elements. The Percent Control Approach Capture Efficiency is now reported once as a stand-alone element, rather than being combined with each pollutant's Reduction Efficiency. This change reflects how the EIS data system addresses the situation and we believe it is a more practical and reasonable approach, since it allows states to report the individual reduction efficiencies as separate data elements rather than reporting only combined values that are computed from the separate reduction efficiencies.

In addition, this action adds a new Control Pollutant data element, which allows states to indicate the pollutant for which the Control Measure Reduction Efficiency is provided. This action also revises the names of previously required point source elements. Control Device Type and Rule Effectiveness have been renamed to Control Measure and Percent Control Approach Effectiveness, respectively.

This action also finalizes similar terminology and usage conventions for the nonpoint sources emission control data elements. Consistent with point sources, Control Measure and Control Pollutant are now also required for nonpoint sources. Finally, the former nonpoint data element Total Capture and Control Efficiency is now renamed to Percent Control Measures Reduction Efficiency, and Rule Effectiveness is renamed Percent Control Approach Effectiveness, consistent with the point source names.

This action finalizes revisions to some of the terms in the point source facility inventory Table 2a to clarify their meaning and promote consistency with the EIS data system names. We are renaming the element FIPs Code to State and County FIPs Code and are permitting a Tribal Code element to be reported rather than the State and County FIPs Code when applicable. For each of the five existing stack and exit gas data elements, we are adding “Release Point” to the names to be consistent with EIS names. We are adding five Unit of Measure data elements, one for each of the existing numerical stack and exit gas data elements, in order to formalize the only reasonable interpretation of the prior rule requirements. The rule now requires reporting of the units of measure along with the numerical values. In addition, the Emission Type data element in the prior rule's Table 2a is now renamed Emission Operating Type and is now moved to Table 2b since it describes the emissions reported, not the facility. This action also clarifies that the requirement for Physical Address is implemented in the EIS data system through the use of four separate data elements: Location Address, Locality Name, State Code, and Postal Code.

This action revises some data elements in the point source facility inventory in Table 2a to simplify reporting and reduce burden. Either the Exit Gas Velocity or Exit Gas Flow Rate is now required, but not both. Because the Release Point Stack Diameter is also required, it is possible for users to derive the velocity or the flow rate from the other value, and so it is not necessary for states to report both. This action now requires the X Facility Coordinate (longitude) and the Y Facility Coordinate (latitude) rather than the previous requirement for X Stack Coordinate (longitude) and Y Stack Coordinate (latitude). Burden is reduced by requiring only a single facility location rather than locations for each stack or release point. It has been the EPA's experience that most states do not have accurate location values for each individual release point within a facility; instead they frequently report the same locations for all stacks within a facility. Furthermore, the vast majority of facilities are geographically small enough that such a simplification does not reduce the usefulness of the data for most inventory purposes. Although we are finalizing the requirement that only facility locations need to be reported, we encourage states voluntarily to report stack locations where those data are available. The EPA may also add individual stack locations where the agency believes it has accurate data (e.g., when provided in Information Collection Requests).

Lastly, to reduce burden, this action eliminates the requirement to report several data elements: Inventory Start Date and End Date; Contact Name and Phone Number; and the four seasonal throughput percents. States may optionally report this information. In addition, for the point, nonpoint, and nonroad source types, we have removed the requirement to report three operating schedule elements: Hours per Day, Days per Week, and Weeks per Year. Also for the point source type, we have removed the requirement to report the following data elements: Heat Content, Ash Content, Sulfur Content, Method Accuracy Description Codes, and Maximum Generator Nameplate Capacity. The EPA believes that the usefulness of the remaining data is not significantly impacted by not collecting these data from the states, but we note that states still have the option to report them if those data are available.

Three additional data elements are now voluntary rather than required under the AERR for all four emissions source types, for the reasons described in section D above: Summer Day Emissions, Ozone Season Emissions, and Winter Work Weekday Emissions. However, all of the data elements that are no longer required to be reported under the AERR may still be voluntarily reported to the EIS data system.

In response to our notice of proposed rulemaking, we received comments from 11 commenters: 10 state agencies and one corporation. The EPA carefully considered all comments in developing the final amendments. The EPA has provided a comprehensive Response to Comments document that is available in the docket for this rule. This section provides a high-level summary of significant comments and the EPA's responses to those comments.

We proposed to change the reporting threshold for point sources of Pb from 5 tpy to 0.5 tpy of Pb potential emissions. The EPA received comments supporting the proposal, as well as comments recommending alternative approaches. Some comments requested that the EPA consider that the ambient monitoring rule threshold is 0.5 tons of actual emissions, and thus the goal of aligning with that rule would be better met using a 0.5 tpy threshold for actual emissions rather than potential emissions. After considering all comments, the EPA is finalizing a 0.5 tpy of actual emissions threshold for reporting Pb emissions as point sources to better reflect available state emissions inventories.

The EPA proposed to eliminate the requirement for reporting emissions from wildfires and prescribed fires, to eliminate the reporting of these sources as nonpoint sources, and to clarify that agricultural fires must be reported as nonpoint sources. These proposed changes would reduce the reporting burden for states, because the EPA already calculates emissions from these sources, using national, satellite-based methods. Seven commenters supported the proposed elimination of the requirement to report emissions from wildfires and prescribed fires. One of these commenters further requested that the EPA retain the option for states to submit their fire emissions. Another commenter recommended that prescribed fires be allowed to be reported to the nonpoint data category. The EPA agrees that states should have the option of reporting fire emissions and the proposal allowed for that possibility. We do not believe that allowing both event-based and nonpoint reporting for prescribed fires is a viable approach, because such an approach would increase complexity of the inventory process by requiring the EPA to prevent double-counting across event-based and nonpoint-based submissions. After consideration of the comments, the EPA is finalizing this section of the rule as proposed.

We proposed to require model inputs from all states (except California) for the onroad mobile sources model MOVES, rather than require emissions values, and to permit the optional additional reporting of emissions values. Six commenters supported this approach. One state objected to the requirement for inputs for MOVES, noting that its approaches to modeling onroad emissions exceed the detail that the EPA would be able to replicate using the MOVES inputs alone, and recommended that EPA should allow either model inputs or emissions values for states to fulfill their reporting requirements.

The EPA believes that allowing emissions values instead of model inputs does not sufficiently address the EPA's needs for such onroad model input data. The MOVES model provides a large degree of flexibility regarding how to run the model, and while different run approaches can result in different estimates of emissions values, no one approach is superior to the others. The commenting state's use of finely resolved modeling approaches is no different from that of many states with nonattainment areas, for which detailed approaches are being used for state implementation plans. As we noted in the proposal, and also explain in the comprehensive Response to Comments document that is available in the docket for this rule, providing model inputs will meet a number of the EPA's needs that are essential to overall air quality responsibilities, including improving the accuracy and timeliness of the EPA's air quality planning efforts, allowing the EPA to use the latest versions of the applicable models to generate the most accurate emissions values, which are used in a variety of required implementation and planning activities, and allowing the EPA to generate consistent base year and future year emissions estimates, which are necessary for performing accurate benefits estimates for new rules (see 78 FR 37167). Thus, this final rule includes a requirement for all states, except California, to report their onroad model input data, requires California to report emissions values (because California's EPA-approved model uniquely supports California onroad mobile regulations), and allows emissions values data to be reported optionally in addition for all other states.

We additionally proposed to require all states (except California) to provide inputs for the EPA-developed nonroad mobile sources model such as the National Mobile Inventory Model (NMIM), rather than require emissions values, and to permit the optional additional reporting of emissions values. Six commenters supported this approach. One state objected to the requirement for inputs for NONROAD, noting that they developed an improved nonroad emissions approach. They further commented that states should be able to meet their nonroad reporting requirement by reporting emissions values or model inputs.

The EPA disagrees with the comment that emissions values should be allowed in place of model inputs for several reasons. First, ongoing changes to the EPA-approved nonroad modeling to use MOVES means that all states will have to adapt to new formats in upcoming AERR every third year cycles. Second, the EPA's approved nonroad approaches are considered valid for all states except California, where state-specific nonroad source regulations cannot be modeled by the EPA model(s). Thus, even if states voluntarily develop their own approaches, the EPA's nonroad approach is still a valid approach in those states and inputs can be prepared. Third, the suggestion to submit only emissions values does not address the EPA need to have inputs for estimating consistent base and future-year emissions. Finally, for states that believe their emissions values from their own approaches are better than values that might be created by the EPA by using the inputs, those states may optionally submit those emissions values as well for use by the EPA. Thus, this final rule (1) requires all states, except California, to provide nonroad model inputs in the formats supported by the latest EPA nonroad models in accordance with guidance provided for a given every third year NEI cycle, (2) requires California to report nonroad emissions values (because state-specific nonroad source regulations cannot be modeled by the EPA models), and (3) allows additional emissions values data to be reported optionally for all other states.

The EPA proposed to remove requirements to submit daily and seasonal emissions from the AERR because those requirements are duplicative in light of similar requirements of the underlying pollutant-specific implementation rules (including CO maintenance plans). These underlying rules already require states to show and track consistency with the emissions projections contained in the approved SIP submissions, and also contain requirements for public review of SIP revisions. Two commenters stated support for the proposed changes, with one of those noting inconsistencies with proposed changes to the ozone implementation rule. Four commenters disagreed with the EPA's proposed change to remove the summer day emissions requirement, with some of those commenters also noting that the definition of summer day emissions in the AERR was referenced by the proposed ozone implementation rule. One commenter stated that AERR submissions can be used as a way to demonstrate milestone year compliance for ozone or CO nonattainment areas. Another commenter indicated that since the NOX SIP Call does not contain specific data reporting requirements and instead refers to the AERR for those requirements (see 40 CFR 51.122(f)), deleting the summer day emissions reporting in the AERR would not allow for proper implementation of the NOX SIP Call. In addition, a commenter noted that the proposed AERR did not explicitly list the NOX SIP call as an optional source of submitted data intended to meet compliance with that rule.

As a result of these comments, the EPA intends to ensure that the requirements for the ozone implementation rule and NOX SIP Call are clear and that terms for mandatory emissions fields are defined in a pollutant-specific regulation, or in the relevant maintenance plan for CO. The EPA believes that the appropriate place for addressing pollutant-specific daily and seasonal reporting requirements is not the general AERR, but rather the underlying pollutant-specific implementation rules. Thus, we are not including those definitions or requirements in the final AERR. In addition, the EPA notes that while summer and winter daily emissions and seasonal emissions are no longer required by the AERR, air agencies may voluntarily report such data to EPA. Allowing such voluntary submissions will continue to support areas that would like to use those submissions to meet the requirements of other rules or plans.

When we proposed this revision, we assumed that the requirement to report specific daily and seasonal emissions was also addressed in the underlying pollutant-specific implementation rules, as well as the AERR. However, in light of these comments, we realize that the requirement to report these daily and seasonal emissions is not also contained in some of the underlying SIP implementation rules. The EPA continues to believe it is not necessary to require reporting of these emissions as part of the AERR and that it makes more sense to define and require reporting of the emissions required for compliance with specific SIP implementation rules within those rules themselves, or within the relevant maintenance plan. As a logical outgrowth of these comments and the fact that we did not propose to remove completely these pollutant-specific requirements—only to remove unnecessary duplication in the AERR—we are making additional changes to the underlying ozone implementation and NOX SIP Call rules. Accordingly, this final rule removes the ozone season emissions and summer day emissions definitions and reporting requirements from the AERR provisions in 40 CFR Subpart A, while also finalizing changes that will move the relevant definitions and reporting requirement to address summer day emissions to the ozone reporting requirements in 40 CFR 51.900 and 51.915 and to address ozone season emissions and summer day emissions in the NOX SIP Call reporting requirements in 40 CFR 51.122. As for CO winter work weekday emissions, since all CO areas have been redesignated to maintenance areas as of September 27, 2010, any requirements to report those emissions will exist in the relevant CO maintenance plans. As no comments identified specific CO-related deficiencies, especially as related to CO regulations or maintenance plans that would be impacted by these revisions, there is no indication that similar changes to underlying regulations are needed to address winter work day emissions.

The EPA proposed to remove required data elements from Tables 2a, 2b, and 2c. One commenter stated support for these changes. Another commenter stated support but also suggested the EPA maintain the requirements for parameters related to state end dates and other operating schedule parameters to reduce the assumptions that reported emissions occurred over the entire year. The EPA acknowledges that the operating parameters can be useful information for certain non-annual sources. However, the vast majority of sources operate on a fairly predictable pattern for the entire year, with only a small portion operating a partial year or with an unusual schedule. While the operating parameter information can be voluntarily reported for such sources, the EPA disagrees that requiring such fields for all sources makes sense in light of the low prevalence of non-annual sources.

The EPA also proposed to add new emissions elements. One commenter supported the addition of Aircraft Engine Type, Unit Type, and Release Point Apportionment Percent to the Facility Inventory data element tables. One commenter expressed concern over these additions, noting additional burden associated with reporting details about airport emissions. Two commenters did not support the requirement for using Shape Identifiers for some nonpoint categories because of the additional resource burden. Other commenters had various minor comments related to these changes. The EPA clarifies that the addition of fields that support the reporting of airport emissions as point sources does not change the sources that will need to be reported as point sources. Most airports still do not need to be reported as point sources because their stationary source emissions will not exceed the potential-to-emit thresholds in this rule. Furthermore, the EPA notes that we provide air agencies with all of the information about aircraft engine types to use in considering their airport emissions estimates, which should reduce any burdens associated with this change.

Regarding the change to require Shape Identifiers, we acknowledge there is some increased level of detail associated with reporting shapes rather than county totals. However, the EPA has minimized the resource burden overall by providing agencies with a table of factors to easily allocate from county emissions to shapes, based on the EPA's estimated geographic allocations. The EPA also provides assistance to air agencies that might prefer to submit county estimates, by helping to prepare allocations and data files for states to submit. Thus, the EPA is finalizing the changes as proposed.

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is, therefore, not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

The Office of Management and Budget (OMB) has approved the information collection requirements contained in this rule under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2170.05. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here.

The ICR collects air emissions and related information from state and local agencies for emissions sources of oxides of nitrogen, carbon monoxide, sulfur dioxide, volatile organic compounds, particulate matter less than or equal to 10 micrometers in diameter, particulate matter less than or equal to 2.5 micrometers in diameter, and ammonia.

Every 3 years, state and local air agencies are required to submit a point source inventory, as well as a statewide stationary nonpoint, onroad mobile, and nonroad mobile source inventory for all criteria pollutants and their precursors. The emissions data submitted for the annual and 3-year cycle inventories are used by EPA's Office of Air Quality Planning and Standards to assist in developing the NEI, performing regional modeling for various regulatory purposes, and preparing national trends assessments and other special analyses and reports. Additionally, states are required to report larger point sources annually, using emissions thresholds set in the reporting rule.

Respondents/affected entities: State and local air agencies.

Respondent's obligation to respond: Mandatory as per 40 CFR part 51.

Estimated number of respondents: 104.

Frequency of response: Annual, with additional requirements triennially.

Total estimated burden: 69,140 hours (per year in triennial years). Burden is defined at 5 CFR 1320.3(b).

Total estimated cost: $5,567,043 (per year), includes $1,166,480 annualized capital or operation & maintenance costs.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any new requirements on small entities. This action corrects and clarifies emissions reporting requirements and provide states with additional flexibility in how they collect and report their emissions data, thereby reducing overall collection and reporting burdens and their associated costs.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175. This action imposes no requirements on tribal governments. The amendments correct and clarify emissions reporting requirements and provide states with additional flexibility in how they collect and report their emissions data. Under the Tribal Authority Rule, tribes are not required to report their emissions to us, except in cases in which a tribal government voluntarily elected to apply for and received “Treatment as State” status for air quality control purposes and is subject to the AERR under its Tribal Implementation Plan. Thus, Executive Order 13175 does not apply to this action.

This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk. The amendments correct and clarify emissions reporting requirements and provide states with additional flexibility in how they collect and report their emissions data.

This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This action corrects and clarifies emissions reporting requirements and provides states with additional flexibility in how they collect and report their emissions data.

This action does not involve technical standards.

The EPA believes that this action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action establishes information reporting procedures for emissions of criteria air pollutants from stationary and mobile sources.

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

For the reasons stated in the preamble, title 40, chapter I, part 51 of the Code of Federal Regulations is amended as follows:

On August 22, 2014, NMFS published a proposed rule in the Federal Register (79 FR 49745) to implement decisions of the Commission on the oceanic whitetip shark, the whale shark, and the silky shark. The proposed rule was open for public comment through October 6, 2014.

This final rule is issued under the authority of the WCPFC Implementation Act (16 U.S.C. 6901 et seq.), which authorizes the Secretary of Commerce, in consultation with the Secretary of State and the Secretary of the Department in which the United States Coast Guard is operating (currently the Department of Homeland Security), to promulgate such regulations as may be necessary to carry out the obligations of the United States under the Convention, including the decisions of the Commission. The authority to promulgate regulations has been delegated to NMFS.

This final rule implements the WCPFC's “Conservation and Management Measure for Oceanic Whitetip Shark” (CMM 2011-04), “Conservation and Management Measure for Protection of Whale Sharks from Purse Seine Fishing Operations” (CMM 2012-04), and “Conservation and Management Measure for Silky Sharks” (CMM 2013-08). The preamble to the proposed rule provides background information on a number of matters, including the Convention and the Commission, the provisions of the WCPFC decisions being implemented in this rule, and the bases for the proposed regulations, which is not repeated here.

The final rule includes six elements—three regarding the oceanic whitetip shark and silky shark and three regarding the whale shark.

For the oceanic whitetip shark and silky shark, the first element prohibits the crew, operator, and owner of a fishing vessel of the United States used for commercial fishing for HMS from retaining on board, transshipping, storing, or landing any part or whole carcass of an oceanic whitetip shark or silky shark that is caught in the Convention Area. The second element requires the crew, operator, and owner to release any oceanic whitetip shark or silky shark caught in the Convention Area as soon as possible after the shark is caught and brought alongside the vessel and take reasonable steps for its safe release, without compromising the safety of any persons. The third element takes into consideration that, notwithstanding the other two oceanic whitetip and silky shark elements of the rule, WCPFC observers may collect samples of oceanic whitetip sharks or silky sharks that are dead when brought alongside the vessel and the crew, operator, or owner of the vessel must allow and assist them to collect samples in the Convention Area, if requested to do so. Observers deployed by NMFS or the Pacific Islands Forum Fisheries Agency are currently considered WCPFC observers, as those programs have completed the required authorization process to become part of the WCPFC Regional Observer Programme.

CMM 2011-04 and CMM 2013-08, for the oceanic whitetip shark and the silky shark, respectively, apply to the entire Convention Area, including, for the United States, state and territorial waters. The WCPFC Implementation Act states that regulations promulgated under the act shall apply within the boundaries of any of the States of the United States and any commonwealth, territory or possession of the United States (hereafter “State”) bordering on the Convention Area if the Secretary of Commerce has provided notice to the State, the State does not request an agency hearing, and the Secretary of Commerce has determined that the State has not, within a reasonable period of time after the promulgation of regulations, enacted laws or promulgated regulations that implement the recommendations of the WCPFC within the boundaries of the State; or has enacted laws or promulgated regulations that implement the recommendations of the WCPFC that are less restrictive than the regulations promulgated under the WCPFC Implementation Act or are not effectively enforced (16 U.S.C. 6907(e)). Some of the fisheries affected by the oceanic whitetip shark and silky shark elements of the rule operate within the waters of American Samoa, Guam, Hawaii, and the Commonwealth of the Northern Mariana Islands (CNMI). NMFS furnished copies of the proposed rule to these States at the time of publication in the Federal Register and will furnish copies of the final rule as well. NMFS is available to discuss ways to ensure that the conservation and management measures implemented in this rulemaking can be consistently applied to Federal, state, and territorial managed fisheries.

For the whale shark, the first element of the final rule prohibits owners, operators, and crew of fishing vessels from setting or attempting to set a purse seine in the Convention Area on or around a whale shark if the animal is sighted prior to the commencement of the set or the attempted set. CMM 2012-04 includes language making the prohibition specific to “a school of tuna associated with a whale shark.” However, it is unclear exactly what this phrase means. Thus, NMFS believes it is appropriate to apply this prohibition to any purse seine set or attempted set on or around a whale shark that has been sighted prior to commencement of the set or attempted set. This prohibition would not apply to sets made in the territorial seas or archipelagic waters of any nation or in the exclusive economic zones (EEZs) of the Parties to the Nauru Agreement (PNA). The final rule includes a definition of the PNA as the Pacific Island countries that are parties to the Nauru Agreement Concerning Cooperation in the Management of Fisheries of Common Interest, as specified on the Web site of the Parties to the Nauru Agreement at www.pnatuna.com. The PNA currently includes the following countries: Federated States of Micronesia, Kiribati, Marshall Islands, Nauru, Palau, Papua New Guinea, Solomon Islands, and Tuvalu. Vessel owners and operators may be subject to similar prohibitions regarding the whale shark in the EEZs of the PNA, if implemented by one or more PNA countries.

The second element for the whale shark in the final rule requires the crew, operator, and owner of a fishing vessel to release any whale shark that is encircled in a purse seine net in the Convention Area, and to take reasonable steps to ensure its safe release, without compromising the safety of any persons. This element does not apply in the territorial seas or archipelagic waters of any nation, but does apply in all EEZs, including the EEZs of the PNA.

The third and final element for the whale shark in the final rule requires the owner and operator of a fishing vessel that encircles a whale shark with a purse seine in the Convention Area to ensure that the incident is recorded by the end of the day on the catch report form, or Regional Purse Seine Logsheet (RPL), maintained pursuant to 50 CFR 300.34(c)(1), in the format specified by the NMFS Pacific Islands Regional Administrator. The NMFS Pacific Islands Regional Administrator would provide vessel owners and operators with specific instructions for how to record whale shark encirclements on the RPL.

NMFS received comments from 38 individuals on the proposed rule, as well as three comment letters from groups or organizations. The comments have been grouped together, where appropriate, in the summaries below.

Comment 1: Four commenters provided general statements of support for the rule and five additional commenters expressed support for the rule stating that oceanic whitetip sharks, whale sharks, and silky sharks need to be protected from the fishing industry as they are at risk of extinction.

Response: NMFS acknowledges these comments.

Comment 2: One commenter stated that there is no sustainable way to fish for these sharks. Their lengthy gestation and low reproduction rate make them vulnerable to environmental changes.

Response: NMFS notes that U.S. vessel owners and operators subject to this final rule are generally not fishing for these sharks, as there is no directed commercial shark fishery in the U.S. Pacific Islands region.

Comment 3: Six commenters discussed how they view sharks as important parts of a healthy ocean and that loss of sharks would be detrimental to the environment. Two of these commenters suggested that preserving sharks could help the shark diving industry, and one of them provided a photo they had taken of an oceanic whitetip shark.

Response: NMFS acknowledges these comments and the photo.

Comment 4: Ten commenters called for protections from fishing for all shark species; half of these commenters asked for broad protections for other species, including cetaceans. Most discussed the importance of sharks to the ecosystem and some discussed their vulnerability to fishing and environmental changes.

Response: The final rule establishes regulations that prohibit the retention, transshipment, storage, and landing of oceanic whitetip sharks and silky sharks, and require the release of any oceanic whitetip shark or silky shark as soon as possible after it is caught, with as little harm to the shark as possible. The final rule also establishes regulations that prohibit setting a purse seine on a whale shark and specify certain measures to be taken in the event a whale shark is encircled in a purse seine net, as well as a requirement to report the incident to NMFS. As described in the EA, other domestic and international management measures, such as the U.S. Shark Conservation Act of 2010 (Pub. L. 111-348), are in place to mitigate the impacts of fishing on shark species. NMFS, as well as international organizations and other countries are actively considering additional management for sharks. For example, the WCPFC's CMM 2010-07 provides management measures for sharks, and the WCPFC is considering additional shark management measures.

Comment 5: One commenter recommended that the proposed regulations be adopted. The commenter stated that these shark species face many man-made perils and need any beneficial regulations that can keep them from becoming endangered. According to the commenter, the proposed regulations would provide a legal framework for the agency to take action against any offenses. The commenter stated that enforcement will likely be challenging but that it is good to have something for which to strive. It is in a fisherman's best interest to help protect the fragile ecosystem he or she relies upon.

Response: NMFS acknowledges the comment.

Comment 6: One commenter stated that oceanic whitetip sharks scour the open ocean which is devoid of most life, so when they encounter potential food, they may test it to see if it is edible. According to the commenter, the bad reputation of sharks comes from being opportunistic. However, thousands of people have swum with these sharks without injury. The sharks need to survive in a harsh, barren environment and they excel at it, so we should let them live.

Response: NMFS acknowledges the comment.

Comment 7: One commenter stated that it is unconscionable to not implement stronger protections for these sharks. According to the commenter, studies have shown declines in oceanic whitetip shark populations in the Gulf of Mexico. Silky shark populations are estimated to have also declined dramatically. The International Union for Conservation of Nature (IUCN) lists the oceanic whitetip shark as vulnerable, the silky shark as near threatened, and the whale shark as vulnerable. Many countries have recognized the fragility of whale shark populations and have legislated full protection for them. None of these species can sustain ongoing depletion.

Response: Please see the response to Comment 4.

Comment 8: One commenter asked NMFS to reconsider implementing the proposed rule, so that abuse of the ocean's beautiful creatures would stop.

Response: We understand this comment to mean that the commenter believes the rule would lead to increased abuse of living marine resources. However, please see the response to Comment 4, above, for a summary of the regulations being implemented in this rule.

Comment 9: One commenter requested NMFS to provide better protection for sharks.

Response: As stated above in the response to Comment 4, the final rule implements WCPFC decisions for the conservation and management of three shark species.

Comment 10: One commenter asked why everyone wants to kill these shark species, since they are simply fantastic and keep the ocean healthy.

Response: As described above in the response to Comment 4, the final rule implements WCPFC decisions for the conservation and management of three shark species.

Comment 11: Three commenters stated that they fully support the regulation of shark finning and more responsible fishing, as specified in the proposed rule. They also stated that these animals are critical members of the ecosystem and should be protected and that these regulations should be strictly enforced.

Response: Please see the response to Comment 4, above, for a description of the elements of the final rule. The final rule does not regulate the practice of finning sharks, but other existing laws and regulations do so (e.g., the Shark Conservation Act of 2010 (Pub. L. 111-348)).

Comment 12: One commenter supported the proposed rule and hopes that the United States will set an example for other countries. The commenter also provided background information on the status and importance of these sharks. However, the commenter asked NMFS to review the whale shark provisions of the proposed rule, recommending that nets should not be allowed in the water if a whale shark is seen and the regulations should clarify what would happen if a purse seine net is already in the water when a whale shark is sighted. The commenter also expressed concern over the lack of clarity in the definition of a “school of tuna associated with a whale shark” and suggested that it be rewritten.

Response: The regulations in this final rule prohibit setting or attempting to set a purse seine in the Convention Area on or around a whale shark if the animal is sighted prior to the commencement of the set or the attempted set. Should a whale shark be sighted after commencement of the set when the net is already in the water, it is not certain that the whale shark would become encircled in the net or that retrieving the net immediately would avoid encircling the whale shark. However, the regulations also require the crew, operator, and owner of a fishing vessel to release any whale shark that is encircled in a purse seine net and take reasonable steps for its safe release without compromising the safety of any persons. CMM 2012-04 includes language prohibiting vessels from setting a purse seine on a “school of tuna associated with a whale shark” if the animal is sighted prior to the commencement of the set or the attempted set. As stated in the proposed rule, it is unclear exactly what the phrase “school of tuna associated with a whale shark,” as used in the CMM, means. Thus, NMFS is implementing broad regulations to prohibit any purse seine set or attempted set on or around a whale shark that has been sighted prior to the commencement of the set or the attempted set. NMFS believes that this interpretation of the CMM is practical for the crew, operators, and owners of fishing vessels to implement and for enforcement officials to enforce.

Comment 13: One commenter stated that as an officer in the U.S. distant water purse seine fleet one of his responsibilities is to act as a medical officer. The commenter strongly encourages the word “safely” to be added to the language requiring the release of oceanic whitetip sharks and silky sharks as soon as possible. Captured sharks can cause serious injuries to the crewmen trying to release them alive. Risking crew injury is unacceptable.

Response: NMFS agrees that the safety of crew members is of paramount importance. The regulations in this final rule for oceanic whitetip sharks and silky sharks require the crew, operator, and owner: “to release any oceanic whitetip shark or silky shark caught in the Convention Area as soon as possible after the shark is caught and brought alongside the vessel and take reasonable steps for its safe release, without compromising the safety of any persons.”

Comment 14: One commenter who has managed a U.S. built and owned purse seine vessel that has operated out of Pago Pago, American Samoa, since 1981 expressed concerns over the proposal and stated that U.S. vessels already practice the regulations being implemented. The commenter believes that piecemeal protections for various species are inefficient and generate excess paperwork. The commenter suggested that the United States instead propose a full purse seine closure period for all Commission Members, Cooperating Non-Members, and Participating Territories (WCPFC members), similar to what is in effect in the eastern Pacific Ocean.

Response: The final rule implements specific WCPFC decisions on oceanic whitetip sharks, whale sharks, and silky sharks. The United States, as a member of the WCPFC, regularly considers conservation and management measures that could be adopted by the WCPFC for purse seine fisheries, but such measures are outside the scope of this rulemaking.

Comment 15: One group of commenters who submitted their comments jointly supported the regulations, especially in regard to silky sharks, and provided background information on silky sharks. The commenters proposed that NMFS modify the regulations to include a reporting requirement for silky shark bycatch to monitor the effectiveness of the regulations and for collecting additional data. The commenters also suggested that NMFS provide a better definition for the phrase “as little harm as possible,” which is part of the provisions of CMM 2013-08 regarding the release of any silky sharks caught in the Convention Area, to ensure the safety of silky sharks and provide fair enforcement. According to the commenters, allowing the operators of individual fishing vessels to determine what level of harm is acceptable would increase the risk of the regulations being applied arbitrarily. The commenters requested NMFS to consult with experts to develop a more thorough definition or establish guidelines for allowable and prohibited conduct when releasing silky sharks.

Response: WCPFC CMM 2010-07 identifies the silky shark as a key shark species and requires retained and discarded catches to be reported by each WCPFC member in its annual report to the Commission. NMFS believes that additional reporting for silky shark catches, including discards, is not needed at this time. The final regulations specify that crew, operators, and owners must release silky sharks caught in the Convention Area as soon as possible after the shark is caught and brought alongside the vessel, taking reasonable steps for its safe release, without compromising the safety of any persons. NMFS believes that this is a reasonable interpretation of CMM 2013-08's phrase “as little harm as possible” that can be implemented and enforced. The WCPFC Scientific Committee has considered appropriate guidelines for the safe release of encircled animals, such as whale sharks in purse seine nets, but the WCPFC has not yet adopted uniform guidelines. NMFS will establish additional shark handling requirements if and when needed should the WCPFC adopt further measures in this regard. NMFS does not believe issuance of these regulations should be postponed in order to develop such handling guidelines or requirements.

Comment 16: One organization provided comments expressing support for the proposed regulations and noting that the implementation deadlines in CMM 2011-04, CMM 2012-04, and CMM 2013-08 have already passed. The commenter indicated the need for rapid completion of the implementation of the measures to ensure that the United States is in full compliance with its WCPFC obligations for shark conservation and management. The commenter also provided background information on the stock status and importance of the three shark species. The commenter urged NMFS to extend the applicability of the oceanic whitetip shark and silky shark regulations to all fisheries, including non-commercial fisheries, that the United States manages in the western and central Pacific Ocean (WCPO) to enhance conservation and enforcement ability. The commenter expressed agreement with NMFS' interpretation of CMM 2012-04's phrase “school of tuna associated with a whale shark.”

Response: The final regulations for oceanic whitetip sharks and silky sharks apply to all U.S. commercial HMS fisheries operating in the Convention Area. NMFS interprets the WCPFC decisions for the oceanic whitetip shark and the silky shark as being applicable only to commercial HMS fisheries, and therefore believes that the inclusion of other fisheries in the rule, as requested by the commenter, would not be appropriate. Should NMFS determine that oceanic whitetip shark and silky shark conservation measures are needed in other fisheries, NMFS would be able to implement such measures through other processes, such as those under the Magnuson-Stevens Fishery Conservation and Management Act.

Comment 17: One organization provided comments expressing its strong support for the proposed rule. The letter approved of NMFS's interpretation of the WCPFC measures to protect whale sharks, and noted the complementary nature of these regulations to similar regulations that recently went into effect in the eastern Pacific Ocean.

Response: NMFS acknowledges these comments.

The phrase “areas under the national jurisdiction of the Parties to the Nauru Agreement” is used in the regulatory text to refer to the EEZs of the PNA. For clarification purposes, a definition of areas under the national jurisdiction of the Parties to the Nauru Agreement has been added to the regulatory text.

The new paragraph under 50 CFR 300.218 has been relabeled as (h) to accommodate another addition to 50 CFR 300.218 under a separate rulemaking. The new paragraphs under 50 CFR 300.222 have been relabeled as (ss), (tt), (uu), (vv), and (ww) to accommodate another addition to 50 CFR 300.222 under a separate rulemaking.

The Administrator, Pacific Islands Region, NMFS, has determined that this final rule is consistent with the WCPFC Implementation Act and other applicable laws.

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

A FRFA was prepared. The FRFA incorporates the IRFA prepared for the proposed rule. The analysis in the IRFA is not repeated here in its entirety.

A description of the action, why it is being considered, and the legal basis for this action are contained in the preamble of the proposed rule and in the SUMMARY and SUPPLEMENTARY INFORMATION sections of this final rule, above. The analysis follows.

NMFS did not receive any comments specifically on the IRFA. Two of the public comments received on the proposed rule touched on the economic impacts of the proposed action; see Comments #5 and #14, and NMFS' responses to those comments, above.

Small entities include “small businesses,” “small organizations,” and “small governmental jurisdictions.” The Small Business Administration (SBA) has established size standards for all major industry sectors in the United States, including commercial finfish harvesters (NAICS code 114111). A business primarily involved in finfish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $20.5 million for all its affiliated operations worldwide.

The final rule will apply to owners and operators of U.S. fishing vessels used to fish for HMS for commercial purposes in the Convention Area. This includes vessels in the purse seine, longline, tropical troll (including those in American Samoa, the CNMI, Guam, and Hawaii), Hawaii handline, Hawaii pole-and-line, and west coast-based albacore troll fleets. The estimated number of affected fishing vessels is as follows, broken down by fleet: 40 purse seine vessels (based on the number of purse seine vessels licensed under the South Pacific Tuna Treaty as of March 2014); 165 longline vessels (based on the number of longline vessels permitted to fish as of July 2014 under the Fishery Ecosystem Plan for Pacific Pelagic Fisheries of the Western Pacific Region, which includes vessels based in Hawaii (a total of 164 Hawaii Longline Limited Entry permits are available), American Samoa (a total of 60 American Samoa Longline Limited Entry permits are available), and the Mariana Islands); 2,089 tropical troll and 572 Hawaii handline vessels (based on the number of active troll and handline vessels in American Samoa, Guam, the CNMI, and Hawaii in 2012, the latest year for which complete data are available); 1 tropical pole-and-line vessel (based on the number of active vessels in 2012), and 13 albacore troll vessels (based on the number of albacore troll vessels authorized to fish on the high seas in the Convention Area as of July 2014). Thus, the total estimated number of vessels that would be subject to the rule is approximately 2,880.

Based on (limited) available financial information about the affected fishing fleets and the SBA's definition of a small finfish harvester (i.e., gross annual receipts of less than $20.5 million, independently owned and operated, and not dominant in its field of operation), and using individual vessels as proxies for individual businesses, NMFS believes that all of the affected fish harvesting businesses are small entities. As stated above, there are currently 40 purse seine vessels in the affected purse seine fishery. Neither gross receipts nor ex-vessel price information specific to the 40 vessels are available to NMFS. Average annual receipts for each of the 40 vessels during the last 3 years for which reasonably complete data are available (2010-2012) were estimated as follows. The vessel's reported retained catches of skipjack tuna, yellowfin tuna, and bigeye tuna in each year were each multiplied by an indicative Asia-Pacific regional cannery price for that species and year (developed by the Pacific Islands Forum Fisheries Agency and available at https://www.ffa.int/node/425#attachments); the products were summed across species for each year; and the sums were averaged across the 3 years. The estimated average annual receipts for each of the 40 vessels were less than the $20.5 million threshold used to classify businesses as small entities under the SBA size standard for finfish harvesting businesses.

The final rule will establish one new reporting requirement within the meaning of the Paperwork Reduction Act, as well as additional requirements, as described in the SUPPLEMENTARY INFORMATION section of this final rule, above. The classes of small entities subject to the requirements and the costs of complying with the requirements are described below for each of the six elements of the final rule—three elements regarding the oceanic whitetip shark and silky shark, and three elements regarding the whale shark.

Oceanic Whitetip Shark and Silky Shark Element (1): Prohibit the crew, operator, and owner of a fishing vessel from retaining on board, transshipping, storing, or landing any oceanic whitetip shark or silky shark. This element prohibits the crew, operator, and owner of a fishing vessel of the United States used for commercial fishing for HMS from retaining on board, transshipping, storing, or landing any part or whole carcass of an oceanic whitetip shark or silky shark that is caught in the Convention Area. This requirement would not impose any new reporting or recordkeeping requirements. It is not expected to require any professional skills that the affected vessel owners, operators and crew do not already possess. This requirement would apply to owners, operators and crew of any vessel used to fish for HMS for commercial purposes in the Convention Area. Accordingly, it would apply to all vessels identified above. Based on the best available data, oceanic whitetip shark and silky shark are not caught in the Hawaii handline fishery, the Hawaii pole-and-line fishery, or the albacore troll fishery. Thus, compliance costs are expected only in the purse seine, longline, and tropical troll fleets. This requirement forecloses harvesting businesses' opportunity to retain and sell or otherwise make use of the two species. The compliance cost for each entity can be approximated by the ex-vessel value of the amount of the two species that would be expected to be retained if it were allowed (under no action). Price data for specific shark species and in specific fisheries is lacking, so this analysis assumes that the ex-vessel value of both species in all affected fisheries is $1.50/kg, which is the 2011 ex-vessel price (converted to 2013 dollars) for sharks generally in Hawaii's commercial pelagic fisheries (which do not include the purse seine fishery, in which the fate and value of retained sharks are not known). Expected retained amounts of each of the two species in each fishery (under no action) are based on the recent level of fishing effort multiplied by the recent retention rate per unit of fishing effort. For all fisheries except the purse seine fishery, the average of the last 5 years for which complete data are available, 2008-2012, is used. The analysis of impacts for the purse seine fishery uses fishing effort and the retention rate averaged over 2010 and 2011 because the fleet was substantially smaller than the current 40-vessel size in years previous to 2010, 100% observer coverage started in 2010, and 2011 is the last year for which near-complete data are available. Fishing effort estimates are based on vessel logbook data, except in the case of the American Samoa, CNMI, and Guam troll fisheries, for which creel survey data are used. Recent retention rates in the purse seine and longline fisheries are estimated from vessel observer data. In the Hawaii troll fishery, vessel logbook data are used, and in the American Samoa, CNMI, and Guam troll fisheries, creel survey data are used. Fish numbers are converted to weights based on vessel observer data for each fishery, except for the troll fisheries, for which weight data are lacking and the average weights in the Hawaii deep-set longline fishery are used. The average weights used are, for oceanic whitetip shark and silky shark, respectively: purse seine—23 kg and 32 kg; Hawaii deep-set longline—27 kg and 28 kg; Hawaii shallow-set longline—27 kg and 28 kg; American Samoa longline—26 kg and 18 kg; and tropical troll—27 kg (the two species cannot be accurately distinguished in the data and are combined for the purpose of this analysis).

In the purse seine fishery, in which about 40 vessels are expected to participate in the near future, it is estimated that 0.1 oceanic whitetip shark and 2.9 silky shark would be retained (under no action) per vessel per year, on average. Applying the average weights and price given above, these amounts equate to estimated lost annual revenue of about $140 per vessel, on average.

As indicated above, about 165 vessels are expected to participate in the affected longline fisheries in the near future. The longline fisheries operating in the Convention Area include the Hawaii-based fisheries, which include a tuna-targeting deep-set fishery and swordfish-targeting shallow set fishery, and the American Samoa-based fishery. Occasionally there is also longline fishing by vessels based in the Mariana Islands, where participation is typically fewer than three vessels in any given year. No vessel observer data are available specifically for the Mariana Islands longline fishery, making it difficult to analyze shark catch rates, but shark catch rates in the other longline fisheries might be reasonable proxies for catch rates in the Mariana Islands fishery. In that case, to the extent either oceanic whitetip shark or silky shark is caught and retained in the Mariana Islands longline fishery in the future, the effects of the final rule can be expected to be about the same—on a per-unit of fishing effort basis—as those in the other longline fisheries, as described here. In the Hawaii and American Samoa longline fisheries, it is estimated that 0.2 oceanic whitetip shark and 0.1 silky shark would be retained (under no action) per vessel per year, on average. These amounts equate to estimated lost annual revenue of about $12 per vessel, on average.

Catch and retention rates of the two shark species in the tropical troll fisheries are difficult to estimate for several reasons. For example, in the Hawaii troll fishery, there is no species code for silky shark, so any catches of that species are recorded as unidentified sharks. In the troll fisheries of the three territories, because the two carcharhinid species are retained only infrequently, it is difficult to generate estimates of total catches of the two species with much certainty using the creel surveys that sample only a subset of all fishing trips. Because of these and other limitations, only very approximate estimates can be made. For this analysis, all unidentified sharks in the data are assumed to be oceanic whitetip shark or silky shark, so the resulting estimates are upper-bound estimates. In the Hawaii troll fishery, it is estimated that 9 sharks would be retained (under no action) per year, on average, for the fishery as a whole. With approximately 1,694 vessels expected to participate in the fishery (based on the number active in 2012), this equates to about 0.01 sharks per vessel per year, and an estimated lost annual revenue of less than one dollar per vessel. The Guam troll fishery, with about 351 vessels expected to participate in the near future, is expected to retain about 2 sharks per year (under no action), on average, for the fleet as a whole. This equates to about 0.01 sharks per vessel per year, and an estimated annual compliance cost of less than one dollar per vessel. In the American Samoa troll fishery, it is estimated that about 0.3 sharks would be retained, on average, per year (under no action). With about 9 vessels expected to participate in the fishery, this equates to about 0.03 sharks per vessel per year, and an estimated annual compliance cost of less than one dollar per vessel. The creel survey encountered no retained sharks in the CNMI troll fishery in 2008-2012, so the best estimate of lost annual revenue for each of the approximately 35 vessels expected to participate in this fishery is zero.

Oceanic Whitetip Shark and Silky Shark Element (2): Require the crew, operators, and owners of U.S. fishing vessels used for commercial fishing for HMS in the Convention Area to release any oceanic whitetip shark or silky shark caught in the Convention Area. This element requires the vessel crew, operator, and owner to release any oceanic whitetip shark or silky shark caught in the Convention Area as soon as possible after the shark is caught and brought alongside the vessel and take reasonable steps to ensure its safe release, without compromising the safety of any persons. This requirement would not impose any new reporting or recordkeeping requirements. It is not expected to require any professional skills that the affected vessel owners, operators and crew do not already possess. This requirement could bring costs in the form of reduced efficiency of fishing operations, but it is difficult to assess the costs because it is not possible to predict whether or how vessel operators and crew would change their release/discard practices relative to what they do currently. For purse seine vessels, it is expected that in most cases, the fish would be released after it is brailed from the purse seine and brought on deck. In these cases, the labor involved would probably be little different than current practice for discarded sharks. If the vessel operator and crew determine that it is possible to release the fish before it is brought on deck, this would likely involve greater intervention and time on the part of crew members, with associated labor costs. For longline and troll vessels, it is expected that the fish would be quickly released as it is brought to the side of the vessel, such as by cutting the line or removing the hook. In these cases, no costs would be incurred. In some cases, the vessel operator and crew might determine that it is necessary to bring the fish on board the vessel before releasing it. This would involve greater labor than releasing the fish from alongside the vessel, but the release methods used in these cases might be the same as those used under the status quo, in which case no new costs would be incurred.

Oceanic Whitetip Shark and Silky Shark Element (3): Require the crew, operators, and owners of U.S. fishing vessels used for commercial fishing for HMS in the Convention Area to allow and assist observers in the collection of oceanic whitetip shark or silky shark samples. This element requires the vessel crew, operator, and owner to allow and assist a WCPFC observer to collect samples of dead oceanic whitetip sharks or silky sharks when requested to do so by the observer. In such cases, and in any case in which the observer collects a sample of an oceanic whitetip shark or silky shark, the crew, operator, and owner would be relieved of the two requirements listed above. Under existing regulations, operators and crew of vessels with WCPFC Area Endorsements (i.e., vessels authorized to be used for commercial fishing for HMS on the high seas in the Convention Area) are already required to assist observers in the collection of samples. This would effectively expand that requirement—for just these two shark species—to vessels not required to have WCPFC Area Endorsements. This requirement would not impose any new reporting or recordkeeping requirements. It is not expected to require any professional skills that the affected vessel owners, operators and crew do not already possess. Although this element would relieve vessel owners, operators and crew from the requirements of the first two elements described above in those cases where the vessel observer collects a sample of an oceanic whitetip shark or silky shark, it would not be expected to relieve fishing businesses of the costs identified above for the no-retention requirement, since the samples would be kept by the observer and would not be available for sale or other use by the fishing business. This element could also bring additional costs to fishing businesses because it would require the owner, operator, and crew to assist the observer in the collection of samples if requested to do so by the observer. Observers would be under instructions to collect samples only if they do so as part of a program that has been specifically authorized by the WCPFC Scientific Committee, and only from sharks that are dead when brought alongside the vessel. It is not possible to project how often observers would request assistance in collecting samples. When it does occur, it is not expected that sample collection would be so disruptive as to substantially delay or otherwise impact fishing operations, but the fishing business could bear small costs in terms of crew labor, and possibly the loss of storage space that could be used for other purposes.

Whale Shark Element (1): Prohibit owners, operators, and crew of U.S. fishing vessels used for commercial fishing for HMS in the Convention Area from setting or attempting to set a purse seine on or around a whale shark. This requirement prohibits owners, operators and crew of fishing vessels from setting or attempting to set a purse seine in the Convention Area on or around a whale shark if the animal is sighted prior to the commencement of the set or the attempted set. This requirement applies to all U.S. purse seine vessels fishing on the high seas and in the EEZs in the Convention Area, except the EEZs of the PNA. This requirement does not impose any new reporting or recordkeeping requirements. It is not expected to require any professional skills that the affected vessel owners, operators and crew do not already possess.

In the event that a whale shark is sighted in the vicinity of a purse seine vessel prior to a desired set, complying with the final rule could cause forgone fishing opportunities and result in economic losses. It is difficult to project the frequency of pre-set whale shark-sighting events because such events are not recorded. Historical data on whale shark catches are available, but catches are not equivalent to pre-set whale shark sightings, for two reasons. On the one hand, presumably not all whale sharks within “sightable” distance of a set are actually caught (thus, in this respect, whale shark catch data under-represent pre-set whale shark sighting events). On the other hand, according to anecdotal information from purse seine vessel operators, not all captured whale sharks are seen before the set commences (thus, in this respect, the whale shark catch data over-represent pre-set whale shark-sighting events). Nonetheless, historical whale shark catch rates can provide a rough indicator of the frequency of pre-set whale shark sighting events in the future.

Based on unpublished vessel observer data from the FFA observer program, the average whale shark catch rate in 2010-2011 for the U.S. purse seine fishery in the Convention Area, excluding the EEZs of the PNA, was approximately 2 fish per thousand fishing days. The average catch rate during that period in the Convention Area as a whole (including the waters of the PNA EEZs) was about 5 fish per thousand fishing days. For this analysis, this range of 2-5 events per thousand fishing days is used as an estimate of pre-set whale shark-sighting events in the future. Based on the average levels of U.S. purse seine fishing effort in the Convention Area outside the EEZs of the PNA in 2010 and 2011 (462 and 842 fishing days, respectively; NMFS unpublished data), it can be expected that approximately 652 fishing days per year will be spent by the fleet in that area in the future. At that level of fishing effort, if pre-set whale shark-sighting events occurred in 2 to 5 per thousand fishing days, as described above, they would occur 1.3 to 3.3 times per year, on average, for the fleet as a whole, or 0.03 to 0.08 times per year for each of the 40 vessels in the fleet, on average.

In those instances that a whale shark is sighted prior to an intended set, the vessel operator would have to wait and/or move the vessel to find the next opportunity to make a set. The consequences in terms of time lost and distance travelled and associated costs cannot be projected with any certainty. At best, the operator would find an opportunity to make a set soon after the event, and only trivial costs would be incurred. At worst, the vessel operator would lose the opportunity to make a set for the remainder of the day. Under this worst-case assumption, a vessel could lose the net benefits associated with 0.03 to 0.08 fishing days per year, on average. Those lost net benefits cannot be estimated because of a lack of fishing cost data, but information on gross receipts can provide an upper-bound estimate. Using regional cannery prices in 2012 for each of the three marketable tuna species, and the U.S. fleet's average catches and fishing days in 2011-2012, the expected gross receipts per fishing day would be about $60,000. Thus, an upper-bound estimate of the loss in gross revenue that could occur to a vessel as a result of losing 0.03 to 0.08 fishing days is approximately $1,800 to $4,800 per year.

Whale Shark Element (2): Require the crew, operator, and owner of U.S. fishing vessels used for commercial fishing for HMS in the Convention Area to release any whale shark that is encircled in a purse seine net. This element would require the crew, operator, and owner of a fishing vessel to release any whale shark that is encircled in a purse seine net in the Convention Area, and to do so in a manner that results in as little harm to the shark as possible, without compromising the safety of any persons. This requirement would apply to all U.S. purse seine vessels fishing on the high seas and in the EEZs of the Convention Area, including the EEZs of the PNA. This requirement would not impose any new reporting or recordkeeping requirements. It is not expected to require any professional skills that the affected vessel owners, operators and crew do not already possess. Unpublished historical vessel observer data from the FFA observer program indicates that all whale sharks captured in the U.S. WCPO purse seine fishery are released; that is, they are not retained or marketed. The release requirement, therefore, is not expected to have any effect on fishing operations or to bring any compliance costs. The requirement to release the sharks in a manner that results in as little harm to the shark as possible without compromising the safety of any persons would be a new and potentially burdensome requirement, but it is not possible to quantitatively assess the cost for two reasons. First, it is not clear how often whale sharks would be encircled. As indicated above, the average annual rate by U.S. purse seine vessels in the Convention Area in 2010 and 2011 was about 5 encirclements per thousand fishing days. But the rate in the future is expected to be reduced as a result of the setting prohibition described in the first whale shark element, above. Nonetheless, if 5 encirclements per thousand fishing days is considered an upper-bound projection, then at a future fishing effort rate of 7,991 fishing days per year in the Convention Area (based on the average spent in 2010 and 2011) and 40 vessels in the fleet, an upper-bound projection of the rate of encirclements per vessel is one per year, on average. The second reason for the difficulty in assessing the compliance costs of this requirement is that current vessel practices regarding whale shark releases are not known in detail. Although data on the condition of each captured whale shark is available (e.g., based on unpublished FFA observer data for 2010 and 2011, 68 percent of captured whale sharks were released alive, 2 percent were released dead, and the condition of the remainder was unknown), these data do not reveal anything about whether the condition of the released whale sharks could have been better, or what the vessel crew would have had to have done to improve the sharks' condition. In conclusion, this requirement might bring some costs to purse seine vessel operations, in the form of the crew potentially having to spend more time handling encircled whale sharks (at most, one per year per vessel, on average) in order to release them with as little harm as possible.

Whale Shark Element (3): Require the owner and operator of a fishing vessel that encircles a whale shark to record the incident on a catch report form. This requirement would require the owner and operator of a fishing vessel that encircles a whale shark with a purse seine net in the Convention Area to ensure that the incident is recorded by the end of the day on the catch report form, or Regional Purse Seine Logsheet (RPL) maintained pursuant to 50 CFR 300.34(c)(1), in the format specified by the NMFS Pacific Islands Regional Administrator. This requirement would apply to all U.S. purse seine vessels fishing on the high seas and in the EEZs of the Convention Area, including the EEZs of the PNA. Because catch and effort logbooks are already required to be maintained and submitted in the purse seine fishery, there would be no additional cost associated with submitting the logbook, but vessels would be required to record additional information associated with whale shark encirclements. The required information for each incident would include a description of the steps taken to minimize harm and an assessment of its condition upon its release. This additional information requirement would be added to the information required to be reported under a current information collection (OMB control number 0648-0218; see the section on the Paperwork Reduction Act below for more information). As indicated for the previous element, it is not possible to project the rate of encirclements with certainty, but one encirclement per vessel per year, on average, is an upper-bound projection. NMFS estimates that it would take about 10 minutes to record the required information for each encirclement. At an estimated labor cost of $25 per hour, the annual cost per vessel would be about $4.

There would be no disproportionate economic impacts between small and large vessel-operating entities resulting from this final rule. Furthermore, there would be no disproportionate economic impacts based on vessel size, gear, or home port, as all the vessels in the fleets would be subject to the same requirements and NMFS has not identified any factors related to vessel size, gear, or home port that would lead to disproportionate impacts.

For the oceanic whitetip shark and silky shark elements of the final rule, NMFS did not identify any alternatives—other than the no-action alternative—that would minimize economic impacts on affected entities.

For the whale shark elements of the final rule, NMFS considered several alternatives. As discussed above, the first element of the final rule for the whale shark prohibits owners, operators, and crew of fishing vessels from setting or attempting to set a purse seine in the Convention Area on or around a whale shark if the animal is sighted prior to the commencement of the set or the attempted set. This element applies on the high seas and in the EEZs of the Convention Area, except for the EEZs of the PNA. CMM 2012-04 states that WCPFC members “shall prohibit their flagged vessels from setting a purse seine on a school of tuna associated with a whale shark if the animal is sighted prior to the commencement of the set”. NMFS considered developing alternative means of implementing the prohibition on setting on a school of tuna, such as specifying a minimum distance for the prohibition (e.g., no setting within half a mile of a whale shark sighting) or a minimum time period for the prohibition (e.g., no setting within 10 minutes of sighting a whale shark). However, NMFS did not identify any such alternative for this element that would be reasonable and feasible. After a whale shark is sighted, it is unclear where and when it will be sighted next, since sharks do not have to return to the surface regularly to breathe. Therefore, NMFS determined that there is only one reasonable and feasible manner of implementing this element of the final rule.

CMM 2012-04 states that for fishing activities in the EEZs of WCPFC members north of 30° N. latitude, WCPFC members shall implement either the provisions of CMM 2012-04 or compatible measures consistent with the obligations under CMM 2012-04. The U.S. purse seine fleet does not fish north of 30° N. latitude in the WCPO. Thus, rather than attempting to develop a separate set of “compatible measures” for EEZs of WCPFC members north of 30 °N. latitude that may or may not be triggered by any actual U.S. purse seine operations, NMFS decided to implement the provisions of CMM 2012-04 for all EEZs in the Convention Area (with the exception of the first element not being applicable to the EEZs of the PNA, as described above).

NMFS did not identify any other alternatives for any of the elements of the final rule.

Taking no action could result in lesser adverse economic impacts than the final action for many affected entities. The economic impacts that would be avoided by taking no action are described above, including quantitative estimates—to the extent possible—for the first oceanic whitetip shark element and the first and third whale shark elements of the final rule. However, NMFS has determined that the no-action alternative would fail to accomplish the objectives of the WCPFC Implementation Act, including satisfying the obligations of the United States as a Contracting Party to the Convention. The no-action alternative is rejected for this reason.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide has been prepared. The guide will be sent to permit and license holders in the affected fishery. The guide and this final rule will also be available at www.fpir.noaa.gov and by request from NMFS PIRO (see ADDRESSES).

This final rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) that has been approved by the Office of Management and Budget (OMB) under control number 0648-0218, “South Pacific Tuna Act”. The public reporting burden for the catch report form (also known as the RPL) under that collection-of-information was estimated to average one hour per response (i.e., per fishing trip), including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. The whale shark encirclement reporting requirement under this final rule changes the catch report element of the collection-of-information. Under this final rule, in the event that a whale shark is encircled in a purse seine net, information about that event would be required to be included in the catch report form. Providing this additional information will increase the reporting burden by approximately 10 minutes per encirclement, which, given an estimated one encirclement per year and five fishing trips per year, on average, equates to approximately 2 minutes per fishing trip or per response. Therefore, the new estimated burden per response (i.e., per fishing trip) for the catch report form is 62 minutes. No comments were received on this collection-of-information requirement in response to the proposed rule. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to Michael D. Tosatto, Regional Administrator, NMFS PIRO (see ADDRESSES) and by email to [email protected] or fax to 202-395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

For the reasons set out in the preamble, 50 CFR part 300 is amended as follows:

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

The A season allowance of the 2015 Pacific cod total allowable catch (TAC) apportioned to vessels using pot gear in the Central Regulatory Area of the GOA is 8,036 metric tons (mt), as established by the final 2014 and 2015 harvest specifications for groundfish of the GOA (79 FR 12890, March 6, 2014) and inseason adjustment (80 FR 192, January 5, 2015).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the A season allowance of the 2015 Pacific cod TAC apportioned to vessels using pot gear in the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 8,026 mt and is setting aside the remaining 10 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels using pot gear in the Central Regulatory Area of the GOA. After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Pacific cod for vessels using pot gear in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of February 12, 2015.

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

This action is required by § 679.20 and is exempt from review under Executive Order 12866.