Federal Register Vol. 80, No.43,

On May 16, 2012, DOE's Office of Energy Efficiency and Renewable Energy published an energy conservation standards and test procedure final rule in the Federal Register titled, “Energy Conservation Standards and Test Procedures for Commercial Heating, Air-Conditioning, and Water-Heating Equipment” (hereafter referred to as the “May 2012 final rule”). 77 FR 28928. Since the publication of that final rule, it has come to DOE's attention that, due to a technical oversight, the May 2012 final rule incorrectly included a typographical error regarding the symbol for one equipment class of the subject computer room air conditioners, which made it appear that there was more than one entry for that equipment class in the table showing the compliance date for use of the applicable test procedure. This final rule corrects this error, thereby eliminating the duplicative listing.

As published, the May 2012 final rule mischaracterizes one computer room air conditioner equipment class in the table showing the compliance date for use of the applicable test procedure. In the May 2012 final rule, Table 2 on page 28990 contains a typographical error in the third column (“Cooling capacity”) for the equipment type, Computer Room Air Conditioners. The entry for the second line, “<65,000 Btu/h and <760,000 Btu/h,” should be corrected to read “≥65,000 Btu/h and <760,000 Btu/h.” At no place in the May 2012 final rule did DOE discuss any intention to have two separate entries for computer room air conditioners <65,000 Btu/h in the test procedure, and DOE notes that this was a typographical error in the final rule as published in the Federal Register. Thus, the table has been corrected to eliminate this error. Accordingly, DOE finds that there is good cause under 5 U.S.C. 553(b)(B) to not issue a separate notice to solicit public comment on the changes contained in this document. Issuing a separate document to solicit public comment would be impractical, unnecessary, and contrary to the public interest.

DOE has concluded that the determinations made pursuant to the various procedural requirements applicable to the May 16, 2012 energy conservation standards and test procedure final rule for certain commercial heating, air-conditioning, and water-heating equipment remain unchanged for this final rule technical correction. These determinations are set forth in the May 16, 2012 final rule. 77 FR 28928, 28983-86.

For the reasons set forth in the preamble, DOE amends part 431 of Chapter II, Subchapter D, of Title 10 of the Code of Federal Regulations as set forth below:

On December 10, 2009, Bombardier Aerospace applied for a type certificate for their new Models BD-500-1A10 and BD-500-1A11 series airplanes (hereafter collectively referred to as “CSeries”). The CSeries airplanes are swept-wing monoplanes with a composite wing fuel tank structure and an aluminum alloy fuselage that is sized for 5-abreast seating. Passenger capacity is designated as 110 for the Model BD-500-1A10 and 125 for the Model BD-500-1A11. Maximum takeoff weight is 131,000 pounds for the Model BD-500-1A10 and 144,000 pounds for the Model BD-500-1A11.

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, Bombardier Aerospace must show that the CSeries airplanes meet the applicable provisions of part 25 as amended by Amendments 25-1 through 25-129.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the CSeries airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the CSeries airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92-574, the “Noise Control Act of 1972.”

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17.

The CSeries airplanes will incorporate the following novel or unusual design feature: A fuel tank nitrogen generation system (NGS) that is intended to control fuel tank flammability for all fuel tanks. This NGS is designed to provide a level of performance to all fuel tanks of the CSeries airplanes that applies the more stringent standard for warm day flammability performance applicable to normally emptied tanks within the fuselage contour from § 25.981(b) and appendix M to part 25. An NGS actively reduces flammability exposure within the fuel tanks significantly below that required by the fuel tank flammability regulations. Among other benefits, the NGS significantly reduces the potential for fuel vapor ignition caused by lightning strikes. This high level of NGS performance for all fuel tanks is a novel or unusual design feature compared to the state of technology envisioned in the airworthiness standards for transport category airplanes.

The certification basis of the CSeries airplanes includes § 25.981, as amended by Amendment 25-125, as required by 14 CFR 26.37. This amendment includes the ignition prevention requirements in § 25.981(a), as amended by Amendment 25-102, and it includes revised flammability limits for all fuel tanks and new specific limitations on flammability for all fuel tanks as defined in § 25.981(b), as amended by Amendment 25-125.

Section 25.981(a)(3) requires applicants to show that an ignition source in the fuel tank system could not result from any single failure, from any single failure in combination with any latent failure condition not shown to be extremely remote, or from any combination of failures not shown to be extremely improbable. This requirement was originally adopted in Amendment 25-102, and it requires the assumption that the fuel tanks are always flammable when showing that the probability of an ignition source being present is extremely remote. (Amendment 25-102 included § 25.981(c) that required minimizing fuel tank flammability, and this was defined in the preamble as being equivalent to unheated aluminum fuel tanks located in the wing.) This requirement defines three types of scenarios that must be addressed in order to show compliance with § 25.981(a)(3). The first scenario is that any single failure, regardless of the probability of occurrence of the failure, must not cause an ignition source. The second scenario is that any single failure, regardless of the probability of occurrence, in combination with any latent failure condition not shown to be at least extremely remote, must not cause an ignition source. The third scenario is that any combination of failures not shown to be extremely improbable must not cause an ignition source. Demonstration of compliance with this requirement would typically require a structured, quantitative safety analysis. Design areas that have latent failure conditions typically would be driven by these requirements to have multiple fault tolerance, or “triple redundancy.” This means that ignition sources are still prevented even after two independent failures.

Section 25.981(b) states that no fuel tank fleet average flammability exposure may exceed 3 percent of the flammability exposure evaluation time calculated using the method in part 25, appendix N, or the fleet average flammability of a fuel tank within the wing of the airplane being evaluated, whichever is greater. If the wing is not a conventional unheated aluminum wing, the analysis must be based on an assumed equivalent conventional construction unheated aluminum wing. In addition, for fuel tanks that are normally emptied during operation and that have any part of the tank located within the fuselage contour, the fleet average flammability for warm days (above 80 °F) must be limited to 3 percent as calculated using the method in part 25, appendix M.

Since the issuance of § 25.981(a)(3), as amended by Amendment 25-102, the FAA has conducted certification projects in which applicants found it impractical to meet the requirements of that regulation for some areas of lightning protection for fuel tank structure. Partial exemptions were issued for these projects. These same difficulties exist for the CSeries project.

The difficulty of designing multiple-fault-tolerant structure, and the difficulty of detecting failures of hidden structural design features in general, makes compliance with § 25.981(a)(3) uniquely challenging and impractical for certain aspects of the electrical bonding of structural elements. Such bonding is needed to prevent occurrence of fuel tank ignition sources from lightning strikes. The effectiveness and fault tolerance of electrical bonding features for structural joints and fasteners is partially dependent on design features that cannot be effectively inspected or tested after assembly without damaging the structure, joint, or fastener. Examples of such features include a required interference fit between the shank of a fastener and the hole in which the fastener is installed, metal foil or mesh imbedded in composite material, a required clamping force provided by a fastener to pull two structural parts together, and a required faying surface bond between the flush surfaces of adjacent pieces of structural material such as in a wing skin joint or a mounting bracket installation. In addition, other features that can be physically inspected or tested may be located within the fuel tanks; therefore, it is not practical to inspect for failures of those features at short intervals. Examples of such failures include separation or loosening of cap seals over fastener ends and actual structural failures of internal fasteners. This inability to practically detect manufacturing errors and failures of structural design features critical to lightning protection results in degraded conditions that occur and remain in place for a very long time, possibly for the remaining life of the airplane.

Accounting for such long failure latency periods in the system safety analysis required by § 25.981(a)(3) would require multiple fault tolerance in the structural lightning protection design. As part of the design development activity for the CSeries, Bombardier has examined possible design provisions to provide multiple fault tolerance in the structural design to prevent ignition sources from occurring in the event of lightning attachment to the airplane in critical locations. Bombardier has concluded from this examination that providing multiple fault tolerance for some structural elements is not practical. Bombardier has also identified some areas of the CSeries design where it is impractical to provide even single fault tolerance in the structural design to prevent ignition sources from occurring in the event of lightning attachment after a single failure. The FAA has reviewed this examination with Bombardier in detail and has agreed that providing fault tolerance beyond that in the proposed CSeries design for these areas would be impractical.

As a result of the CSeries and other certifications projects, the FAA has now determined that compliance with § 25.981(a)(3) is impractical for some areas of lightning protection for fuel tank structure, and that application of § 25.981(a)(3) to those design areas is therefore inappropriate. The FAA plans further rulemaking to revise § 25.981(a)(3). As appropriate, the FAA plans to issue special conditions or exemptions, for certification projects progressing before the revision is complete. This is discussed in FAA Memorandum ANM-112-08-002, Policy on Issuance of Special Conditions and Exemptions Related to Lightning Protection of Fuel Tank Structure, dated May 26, 2009.

Section 25.981(b) sets specific standards for fuel tank flammability as discussed above under “Flammability Limits.” Under that regulation, the fleet average flammability exposure of all fuel tanks on the CSeries airplanes may not exceed 3 percent of the flammability exposure evaluation time calculated using the method in part 25, appendix N, or the fleet average flammability of a wing main tank within an equivalent construction conventional unheated aluminum wing fuel tank, whichever is greater. The typical fleet average fuel tank flammability of fuel tanks located in the wing ranges between 1 and 5 percent. If it is assumed that a CSeries equivalent conventional unheated aluminum wing fuel tank would not exceed a fleet average flammability time of 3 percent, the actual composite airplane wing fuel tank design would be required to comply with the 3 percent fleet average flammability standard, and therefore a means to reduce the flammability to 3 percent would be required. However, the proposed CSeries design includes NGS for all fuel tanks that will also be shown to meet the additional, more stringent warm day average flammability standard in part 25, appendix M, which is only required for normally emptied fuel tanks with some part of the tank within the fuselage contour. Fuel tanks that meet this requirement typically have average fuel tank flammability levels well below the required 3 percent.

Since the proposed NGS for all fuel tanks on the CSeries provides performance that meets part 25, appendix M, the FAA has determined that the risk reduction provided by this additional performance will provide compensation for some relief from the ignition prevention requirements of § 25.981(a)(3) while still establishing a level of safety equivalent to that established in the regulations.

In determining the appropriate amount of relief from the ignition prevention requirements of § 25.981(a), the FAA considered the original overall intent of Amendment 25-102, which was to ensure the prevention of catastrophic events due to fuel tank vapor explosion. These special conditions are intended to achieve that objective through a prescriptive requirement that fault tolerance (with respect to the creation of an ignition source) be provided for all structural lightning protection design features where providing such fault tolerance is practical, and through a performance-based standard for the risk due to any single failure vulnerability that exists in the design. In addition, for any structural lightning protection design features for which Bombardier shows that providing fault tolerance is impractical, these special conditions would require Bombardier to show that a fuel tank vapor ignition event due to the summed risk of all non-fault-tolerant design features is extremely improbable. Bombardier would be required to show that this safety objective is met by the proposed design using a structured system safety assessment similar to that currently used for demonstrating compliance with §§ 25.901 and 25.1309.

Given these novel or unusual design features, and the compliance challenges noted earlier in this document, the FAA has determined that application of § 25.981(a)(3) is inappropriate in that it is neither practical nor necessary to apply the ignition source prevention provisions of § 25.981(a)(3) to the specific fuel tank structural lightning protection features of the Bombardier CSeries airplanes. However, without the § 25.981(a)(3) provisions, the remaining applicable regulations in the CSeries certification basis would be inadequate to set an appropriate standard for fuel tank ignition prevention. Therefore, in accordance with provisions of § 21.16, the FAA has determined that, instead of § 25.981(a)(3), alternative fuel tank structural lightning protection requirements be applied to fuel tank lightning protection features that are integral to the airframe structure of the CSeries airplanes. These alternative requirements are intended to provide the level of safety intended by § 25.981(a)(3), based on our recognition, as discussed above, that a highly effective NGS for the fuel tanks makes it unnecessary to assume that the fuel tank is always flammable. As discussed previously, the assumption that the fuel tanks are always flammable was required when demonstrating compliance to the ignition prevention requirements of § 25.981(a)(3).

One resulting difference between these special conditions and the § 25.981(a)(3) provisions they are meant to replace is the outcome being prevented—fuel vapor ignition versus an ignition source. These special conditions acknowledge that the application of fuel tank flammability performance standards will reduce fuel tank flammability to an extent that it is appropriate to consider the beneficial effects of flammability reduction when considering design areas where it is impractical to comply with § 25.981(a)(3).

One of the core requirements of these special conditions is a prescriptive requirement that structural lightning protection design features must be fault tolerant. (An exception wherein Bombardier can show that providing fault tolerance is impractical, and associated requirements, is discussed below.) The other core requirement is that Bombardier must show that the design, manufacturing processes, and Airworthiness Limitations section of the Instructions for Continued Airworthiness include all practical measures to prevent, and detect and correct, failures of structural lightning protection features due to manufacturing variability, aging, wear, corrosion, and likely damage. The FAA has determined that, if these core requirements are met, a fuel tank vapor ignition event due to lightning is not anticipated to occur in the life of the airplane fleet. This conclusion is based on the fact that a critical lightning strike to any given airplane is itself a remote event, and on the fact that fuel tanks must be shown to be flammable for only a relatively small portion of the fleet operational life.

For any non-fault-tolerant features proposed in the design, Bombardier must show that eliminating these features or making them fault tolerant is impractical. The requirements and considerations for showing it is impractical to provide fault tolerance are described in FAA Memorandum ANM-112-08-002. This requirement is intended to minimize the number of non-fault tolerant features in the design.

For areas of the design where Bombardier shows that providing fault tolerant structural lightning protection features is impractical, non-fault-tolerant features will be allowed provided Bombardier can show that a fuel tank vapor ignition event due to the non-fault-tolerant features is extremely improbable when the sum of probabilities of those events due to all non-fault-tolerant features is considered. Bombardier will be required to submit a structured, quantitative assessment of fleet average risk for a fuel tank vapor ignition event due to all non-fault-tolerant design features included in the design. This will require determination of the number of non-fault tolerant design features, estimates of the probability of the failure of each non-fault-tolerant design feature, and estimates of the exposure time for those failures. This analysis must include failures due to manufacturing variability, aging, wear, corrosion, and likely damage.

It is acceptable to consider the probability of fuel tank flammability, the probability of a lightning strike to the airplane, the probability of a lightning strike to specific zones of the airplane (for example, Zone 2 behind the nacelle, but not a specific location or feature), and a distribution of lightning strike amplitude in performing the assessment provided the associated assumptions are acceptable to the FAA. The analysis must account for any dependencies among these factors, if they are used. The assessment must also account for operation with inoperative features and systems, including any proposed or anticipated dispatch relief. This risk assessment requirement is intended to ensure that an acceptable level of safety is provided given the non-fault-tolerant features in the proposed design.

Part 25, appendix N, as adopted in Amendment 25-125, in conjunction with these special conditions, constitutes the standard for how to determine flammability probability. In performing the safety analysis required by these special conditions, relevant § 25.981(a)(3) compliance guidance is still applicable. Appropriate credit for the conditional probability of environmental or operational conditions occurring is normally limited to those provisions involving multiple failures, and this type of credit is not normally allowed in evaluation of single failures. However, these special conditions would allow consideration of the probability of occurrence of lightning attachment and flammable conditions when assessing the probability of structural failures resulting in a fuel tank vapor ignition event.

The FAA understands that lightning protection safety for airplane structure is inherently different from lightning protection for systems. We intend to apply these special conditions only to structural lightning protection features of fuel systems. We do not intend to apply the alternative standards used under these special conditions to other areas of the airplane design evaluation.

In recognition of the unusual design feature discussed above, and the impracticality of requiring multiple fault tolerance for lightning protection of certain aspects of fuel tank structure, the FAA has determined that a level of safety that is equivalent to direct compliance with § 25.981(a)(3) will be achieved for the CSeries by applying these requirements. The FAA considers that, instead of only concentrating on fault tolerance for ignition source prevention, significantly reducing fuel tank flammability exposure in addition to preventing ignition sources is a better approach to lightning protection for the fuel tanks. In addition, the level of average fuel tank flammability achieved by compliance with these special conditions is low enough that it is not appropriate or accurate to assume in a safety analysis that the fuel tanks may always be flammable.

Section 25.981(b), as amended by Amendment 25-125, sets limits on the allowable fuel tank flammability for the CSeries airplanes. Paragraph 2(a) of these special conditions applies the more stringent standard for warm day flammability performance applicable to normally emptied tanks within the fuselage contour from § 25.981(b) and part 25, appendix M, to all of the fuel tanks of the CSeries airplanes.

Because of the more stringent fuel tank flammability requirements in these special conditions, and because the flammability state of a fuel tank is independent of the various failures of structural elements that could lead to an ignition source in the event of lightning attachment, the FAA has agreed that it is appropriate in this case to allow treatment of flammability as an independent factor in the safety analysis. The positive control of flammability and the lower flammability that is required by these special conditions exceeds the minimum requirements of § 25.981(b). This offsets a reduction of the stringent standard for ignition source prevention in § 25.981(a)(3), which assumes that the fuel tank is flammable at all times.

Given the stringent requirements for fuel tank flammability, the fuel vapor ignition prevention and the ignition source prevention requirements in these special conditions will prevent “. . . catastrophic failure . . . due to ignition of fuel or vapors” as stated in § 25.981(a). Thus, the overall level of safety achieved by these special conditions is considered equivalent to that which would be required by compliance with § 25.981(a)(3) and (b).

Notice of proposed special conditions No. 25-14-05 for the Bombardier CSeries airplanes was published in the Federal Register on July 25, 2014 (79 FR 43318). No comments were received, and the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Models BD-500-1A10 and BD-500-1A11 series airplanes. Should Bombardier Aerospace apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on two model series of airplanes. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Validated End-Users (VEUs) are designated entities located in eligible destinations to which eligible items may be exported, reexported, or transferred (in-country) under a general authorization instead of a license. The names of the VEUs, as well as the dates they were so designated, and their respective eligible destinations and items are identified in Supplement No. 7 to Part 748 of the EAR. Under the terms described in that supplement, VEUs may obtain eligible items without an export license from BIS, in conformity with Section 748.15 of the EAR. Eligible items vary between VEUs and may include commodities, software, and technology, except those controlled for missile technology or crime control reasons on the Commerce Control List (CCL) (part 774 of the EAR).

VEUs are reviewed and approved by the U.S. Government in accordance with the provisions of Section 748.15 and Supplement Nos. 8 and 9 to Part 748 of the EAR. The End-User Review Committee (ERC), composed of representatives from the Departments of State, Defense, Energy, and Commerce, and other agencies, as appropriate, is responsible for administering the VEU program. BIS amended the EAR in a final rule published on June 19, 2007 (72 FR 33646) to create Authorization VEU.

In this final rule, BIS amends Supplement No. 7 to Part 748 to add two Export Control Classification Numbers (ECCNs), 2B006.a and 2B006.b.1.d, to the list of items that may be exported, reexported or transferred (in-country) to Samsung China's facility in the PRC under Authorization VEU. The revised list of eligible items for Samsung China is as follows:

1C350.c.3, 1C350.d.7, 2B006.a, 2B006.b.1.d, 2B230, 2B350.d.2, 2B350.g.3, 2B350.i.3, 3A233, 3B001.a.1, 3B001.b, 3B001.c, 3B001.e, 3B001.f, 3B001.h, 3C002, 3C004, 3D002, and 3E001 (limited to “technology” for items classified under 3C002 and 3C004 and “technology” for use consistent with the International Technology Roadmap for Semiconductors process for items classified under ECCNs 3B001 and 3B002).

Since August 21, 2001, the Export Administration Act of 1979, as amended, has been in lapse. However, the President, through Executive Order 13222 of August 17, 2001, 3 CFR 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013), and as extended by the Notice of August 7, 2014, 79 FR 46959 (August 11, 2014) has continued the EAR in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.). BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222, as amended by Executive Order 13637.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. This rule involves collections previously approved by the Office of Management and Budget (OMB) under Control Number 0694-0088, “Multi- Purpose Application,” which carries a burden hour estimate of 43.8 minutes to prepare and submit form BIS-748; and for recordkeeping, reporting and review requirements in connection with Authorization VEU, which carries an estimated burden of 30 minutes per submission. This rule is expected to result in a decrease in license applications submitted to BIS. Total burden hours associated with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA) and OMB Control Number 0694-0088 are not expected to increase significantly as a result of this rule. Notwithstanding any other provisions of law, no person is required to respond to, nor 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.

3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

4. Pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), BIS finds good cause to waive requirements that this rule be subject to notice and the opportunity for public comment because they are unnecessary. In determining whether to grant VEU designations, a committee of U.S. Government agencies evaluates information about and commitments made by candidate companies, the nature and terms of which are set forth in 15 CFR part 748, Supplement No. 8. The criteria for evaluation by the committee are set forth in 15 CFR 748.15(a)(2). The information, commitments, and criteria for this extensive review were all established through the notice of proposed rulemaking and public comment process (71 FR 38313 (July 6, 2006) (proposed rule), and 72 FR 33646 (June 19, 2007) (final rule)). Given the similarities between the authorizations provided under the VEU program and export licenses (as discussed further below), the publication of this information does not establish new policy. Publication of this rule in other than final form is unnecessary because the authorizations granted in the rule are consistent with the authorizations granted to exporters for individual licenses (and amendments or revisions thereof), which do not undergo public review. In addition, as with license applications, VEU authorization applications contain confidential business information, which is necessary for the extensive review conducted by the U.S. Government in assessing such applications. This information is extensively reviewed according to the criteria for VEU authorizations, as set out in 15 CFR 748.15(a)(2). Additionally, just as the interagency reviews license applications, the authorizations granted under the VEU program involve interagency deliberation and result from review of public and non-public sources, including licensing data, and the measurement of such information against the VEU authorization criteria. Given the nature of the review, and in light of the parallels between the VEU application review process and the review of license applications, public comment on this authorization and subsequent amendments prior to publication is unnecessary. Moreover, because, as noted above, the criteria and process for authorizing and administering VEUs were developed with public comments, allowing additional public comment on this amendment to individual VEU authorizations, which was determined according to those criteria, is unnecessary.

Section 553(d) of the APA generally provides that rules may not take effect earlier than thirty (30) days after they are published in the Federal Register. BIS finds good cause to waive the 30- day delay in effectiveness under 5 U.S.C. 553(d)(3) because the delay would be contrary to the public interest. BIS is simply amending the authorization of an existing VEU by adding two ECCNs to the list of eligible items that may be sent to that VEU, consistent with established objectives and parameters administered and enforced by the responsible designated departmental representatives to the End-User Review Committee. Delaying this action's effectiveness could cause confusion regarding which items are authorized by the U.S. Government and in turn stifle the purpose of the VEU Program. Accordingly, it is contrary to the public interest to delay this rule's effectiveness.

No other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required under the APA or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. As a result, no final regulatory flexibility analysis is required and none has been prepared.

Accordingly, part 748 of the EAR (15 CFR parts 730-774) is amended as follows:

Sarbanes-Oxley was first enacted on July 30, 2002. Title VIII is designated as the Corporate and Criminal Fraud Accountability Act of 2002. Section 806, codified at 18 U.S.C. 1514A, is the “whistleblower provision,” which provides protection to employees against retaliation by certain persons covered under the Act for engaging in specified protected activity. The Act generally was designed to protect investors by ensuring corporate responsibility, enhancing public disclosure, and improving the quality and transparency of financial reporting and auditing. The whistleblower provision is intended to protect employees who report fraudulent activity and violations of Securities Exchange Commission (SEC) rules and regulations that can harm innocent investors in publicly traded companies.

Dodd-Frank amended the Sarbanes-Oxley whistleblower provision, 18 U.S.C. 1514A. The regulatory revisions described herein reflect these statutory amendments and also seek to clarify and improve OSHA's procedures for handling Sarbanes-Oxley whistleblower claims, as well as to set forth OSHA's interpretations of the Act. To the extent possible within the bounds of applicable statutory language, these revised regulations are designed to be consistent with the procedures applied to claims under other whistleblower statutes administered by OSHA, including the Surface Transportation Assistance Act of 1982 (STAA), 29 CFR part 1978; the National Transit Systems Security Act (NTSSA) and the Federal Railroad Safety Act (FRSA), 29 CFR part 1982; the Consumer Product Safety Improvement Act of 2008 (CPSIA), 29 CFR part 1983; the Employee Protection Provisions of Six Environmental Statutes and Section 211 of the Energy Reorganization Act of 1974, as amended, 29 CFR part 24; the Affordable Care Act (ACA), 29 CFR part 1984; the Consumer Financial Protection Act (CFPA), 29 CFR part 1985; the Seaman's Protection Act (SPA), 29 CFR part 1986; and the FDA Food Safety Modernization Act (FSMA), 29 CFR part 1987.

Sarbanes-Oxley's whistleblower provision, as amended by Dodd-Frank, includes procedures that allow a covered employee to file a complaint with the Secretary of Labor (Secretary) 1 not later than 180 days after the alleged retaliation or after the employee learns of the alleged retaliation. Sarbanes-Oxley further provides that the rules and procedures set forth in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121(b), govern in Sarbanes-Oxley actions. 18 U.S.C. 1514A(b)(2)(A). Accordingly, upon receipt of the complaint, the Secretary must provide written notice to the person or persons named in the complaint alleged to have violated the Act (respondent) of the filing of the complaint, the allegations contained in the complaint, the substance of the evidence supporting the complaint, and the rights afforded the respondent throughout the investigation. The Secretary must then, within 60 days of receipt of the complaint, afford the respondent an opportunity to submit a response and meet with the investigator to present statements from witnesses, and conduct an investigation.

The statute provides that the Secretary may conduct an investigation only if the complainant has made a prima facie showing that the protected activity was a contributing factor in the adverse action alleged in the complaint and the respondent has not demonstrated, through clear and convincing evidence, that the employer would have taken the same adverse action in the absence of that activity (see Section 1980.104 for a summary of the investigation process). OSHA interprets the prima facie case requirement as allowing the complainant to meet this burden through the complaint as supplemented by interviews of the complainant.

After investigating a complaint, the Secretary will issue written findings. If, as a result of the investigation, the Secretary finds there is reasonable cause to believe that retaliation has occurred, the Secretary must notify the respondent of those findings, along with a preliminary order which includes all relief necessary to make the employee whole, including, where appropriate: Reinstatement with the same seniority status that the employee would have had but for the retaliation; back pay with interest; and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees.

The complainant and the respondent then have 30 days after the date of the Secretary's notification in which to file objections to the findings and/or preliminary order and request a hearing before an ALJ. The filing of objections under Sarbanes-Oxley will stay any remedy in the preliminary order except for preliminary reinstatement. If a hearing before an ALJ is not requested within 30 days, the preliminary order becomes final and is not subject to judicial review.

If a hearing is held, Sarbanes-Oxley requires the hearing to be conducted “expeditiously.” The Secretary then has 120 days after the conclusion of any hearing in which to issue a final order, which may provide appropriate relief or deny the complaint. Until the Secretary's final order is issued, the Secretary, the complainant, and the respondent may enter into a settlement agreement that terminates the proceeding. Where the Secretary has determined that a violation has occurred, the Secretary, will order all relief necessary to make the employee whole, including, where appropriate: reinstatement of the complainant to his or her former position together with the same seniority status the complainant would have had but for the retaliation; payment of back pay with interest; and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees.

Within 60 days of the issuance of the final order, any person adversely affected or aggrieved by the Secretary's final order may file an appeal with the United States Court of Appeals for the circuit in which the violation occurred or the circuit where the complainant resided on the date of the violation.

Sarbanes-Oxley permits the employee to seek de novo review of the complaint by a United States district court in the event that the Secretary has not issued a final decision within 180 days after the filing of the complaint and there is no showing that such delay is due to the bad faith of the complainant. The court will have jurisdiction over the action without regard to the amount in controversy, and the case will be tried before a jury at the request of either party.

Dodd-Frank, enacted on July 21, 2010, amended the Sarbanes-Oxley whistleblower provision to make several substantive changes. First, section 922(b) of Dodd-Frank added protection for employees from retaliation by nationally recognized statistical rating organizations (as defined in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c)) or their officers, employees, contractors, subcontractors, and agents.2 Second, as noted above, section 922(c) of Dodd-Frank extended the statutory filing period for retaliation complaints under Sarbanes-Oxley from 90 days to 180 days after the date on which the violation occurs or after the date on which the employee became aware of the violation. Section 922(c) of Dodd-Frank also provided parties with a right to a jury trial in district court actions brought under Sarbanes-Oxley's “kick-out” provision, 18 U.S.C. 1514A(b)(1)(B), which provides that, if the Secretary has not issued a final decision within 180 days of the filing of the complaint and there is no showing that there has been delay due to the bad faith of the complainant, the complainant may bring an action at law or equity for de novo review in the appropriate district court of the United States, which will have jurisdiction over such action without regard to the amount in controversy. Third, section 922(c) amended Sarbanes-Oxley to state that the rights and remedies provided for in 18 U.S.C. 1514A may not be waived by any agreement, policy form, or condition of employment, including by a pre-dispute arbitration agreement, and to provide that no pre-dispute arbitration agreement shall be valid or enforceable if the agreement requires arbitration of a dispute arising under this section.

In addition, section 929A of Dodd-Frank clarified that companies covered by the Sarbanes-Oxley whistleblower provision include any company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l), or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(d)) including any subsidiary or affiliate whose financial information is included in the consolidated financial statements of such company. As explained in Johnson v. Siemens Building Technologies, Inc., ARB No. 08-032, 2011 WL 1247202, at *11 (Mar. 31, 2011), section 929A merely clarified that subsidiaries and affiliates are covered under the Sarbanes-Oxley whistleblower provision. Section 929A applies to all cases currently pending before the Secretary.

On November 3, 2011, OSHA published in the Federal Register an IFR revising rules governing the whistleblower provisions of Section 806 of Sarbanes-Oxley. 76 FR 68084. OSHA included a request for public comment on the interim rules by January 3, 2012.

In response, four organizations and one individual filed comments with OSHA within the public comment period. Comments were received from Mr. Hunter Levi; the National Whistleblower Center (NWC); Katz, Marshall & Banks, LLP (Marshall); the Equal Employment Advisory Council (EEAC); and the Society of Corporate Secretaries & Governance Professionals (SCSGP).

OSHA has reviewed and considered the comments and now adopts this final rule with minor revisions. The following discussion addresses the comments, OSHA's responses, and any other changes to the provisions of the rule. The provisions in the IFR are adopted and continued in this final rule, unless otherwise noted below.

Marshall commented that “in large part, the rules simply effectuate changes made by [Dodd-Frank] and are rather modest in scope,” and wrote in support of several changes made in the IFR. Marshall stated that Congress enacted Sarbanes-Oxley whistleblower provisions to ensure that employees could raise concerns about potentially harmful fraud on shareholders and others without fear of retaliation. In response to anticipated comments that the rules “will make pursuing a SOX whistleblower claim far less daunting,” Marshall noted, “why should OSHA procedures make pursuing a whistleblower complaint daunting for an employee in a procedural sense?” (emphasis in original). Marshall explained, “If the purpose of SOX whistleblower protections is to encourage and facilitate the timely reporting of financial fraud that can cause tremendous harm to the public good, the administrative process should be as accessible as possible.” Marshall also commented on specific provisions of the rule; those comments are addressed below.

SCSGP noted that Section 806 of Sarbanes-Oxley provides whistleblowers with broad protection against retaliation, and its safeguards were enhanced by the enactment of Dodd-Frank. SCSGP also pointed to recent ARB case law and other provisions of Dodd-Frank that provide expanded whistleblower protections. SCSGP commented that these developments “underscore the need to ensure that employers are provided adequate due process in the context of DOL's administration of Section 806 complaints.” SCSGP comments then focused on four aspects of the IFR that SCSGP considers are “unauthorized by statute, imbalanced, and unduly prejudicial to employers' reasonable interests.” Those specific comments and provisions are discussed in detail below.

Mr. Levi asserted his belief that the IFR contained “new provisions that violate the intent of Congress, ignore longstanding precedent concerning the authority of the Secretary, and seek to create a bogus legal exception to SOX Section 802, [18 U.S.C. 1519]; which deals with the criminal obstruction of SOX in government proceedings.” Mr. Levi also asserted his belief that the revisions to which he objects violate the rights of Sarbanes-Oxley complainants and increase the risk of employer securities fraud. Mr. Levi's comments additionally addressed two specific portions of the IFR Federal Register notice: Section 1980.112 and the preamble discussion of Section 1980.114. OSHA has addressed Mr. Levi's comments in the discussion of the specific provisions below.

EEAC commented that the IFR accurately reflected the changes made by Dodd-Frank, and commended OSHA for this effort. EEAC further submitted that many of the additional changes incorporated in the IFR, for purposes of clarification and improvement of the procedures, were not directed by Dodd-Frank. EEAC respectfully submitted that many of these changes “seem intentionally designed to make it easier for claimants to file and prosecute, and more difficult for respondents to defend,” Sarbanes-Oxley whistleblower complaints. EEAC then commented on several specific provisions of the rule, and those comments are addressed below.

NWC, in support of its various suggested revisions, discussed the overall remedial purpose of the Sarbanes-Oxley whistleblower provisions, as well as the employee protection provisions of various other statutes that OSHA enforces. NWC also commented specifically on several provisions of the IFR, which are discussed below.

This section describes the purpose of the regulations implementing Sarbanes-Oxley and provides an overview of the procedures covered by these regulations. No comments were received on this section. However, OSHA has added a statement in subparagraph (b) noting that these rules reflect the Secretary's interpretations of the Act.

This section includes general definitions applicable to Sarbanes-Oxley's whistleblower provision. The interim final rule updated and revised this section in light of Dodd-Frank's amendments to Sarbanes-Oxley. In March 2014, the Supreme Court issued its decision in Lawson v. FMR LLC, 134 S. Ct. 1158 (2014), in which it affirmed the Department's view that protected employees under Sarbanes-Oxley's whistleblower provision include employees of contractors to public companies. No changes have been made to the definition of “employee” in this rule, as the interim final rule's definition of “employee” is consistent with the Supreme Court's decision. No comments were received on this section of the interim final rule and no changes have been made to this section.

This section describes the activities that are protected under Sarbanes-Oxley and the conduct that is prohibited in response to any protected activities.

The final rule, like the interim final rule, provides that an employee is protected against retaliation by a covered person for any lawful act done by the employee:

(1) To provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of 18 U.S.C. 1341 (mail fraud), 1343 (wire fraud), 1344 (bank fraud), or 1348 (securities fraud), any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to or the investigation is conducted by—

(i) A Federal regulatory or law enforcement agency;

(ii) Any Member of Congress or any committee of Congress; or

(iii) A person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct); or

(2) To file, cause to be filed, testify, participate in, or otherwise assist in a proceeding filed or about to be filed (with any knowledge of the employer) relating to an alleged violation of 18 U.S.C. 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders.

In order to have a “reasonable belief” under Sarbanes-Oxley, a complainant must have both a subjective, good faith belief and an objectively reasonable belief that the complained-of conduct violates one of the enumerated categories of law. See Lockheed Martin Corp. v. ARB, 717 F.3d 1121, 1132 (10th Cir. 2013); Wiest v. Lynch, 710 F.3d 121, 131-32 (3d Cir. 2013); Sylvester v. Parexel Int'l LLC, ARB No. 07-123, 2011 WL 2165854, at *12 (ARB May 25, 2011). The requirement that the complainant have a subjective, good faith belief is satisfied so long as the complainant actually believed that the conduct complained of violated the relevant law. See Sylvester, 2011 WL 2165854, at *12 (citing Harp v. Charter Commc'ns, 558 F.3d 722, 723 (7th Cir. 2009)); Day v. Staples, Inc., 555 F.3d 42, 54 n.10 (1st Cir. 2009) (quoting Welch v. Chao, 536 F.3d 269, 277 n.4 (4th Cir. 2008) (“Subjective reasonableness requires that the employee `actually believed the conduct complained of constituted a violation of pertinent law.' ”)). “[T]he legislative history of Sarbanes-Oxley makes clear that its protections were `intended to include all good faith and reasonable reporting of fraud, and there should be no presumption that reporting is otherwise.' ” Sylvester, 2011 WL 2165854, at *11 (quoting Van Asdale v. Int'l Game Tech., 577 F.3d 989, 1002 (9th Cir. 2009) (citing 148 Cong. Rec. S7418-01, S7420 (daily ed. July 26, 2002))).

The objective “reasonableness” of a complainant's belief is typically determined “based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee.” Sylvester, 2011 WL 2165854, at *12 (internal quotation marks and citation omitted); Harp, 558 F.3d at 723. However, the complainant need not show that the conduct complained of constituted an actual violation of law. Pursuant to this standard, an employee's whistleblower activity is protected where it is based on a reasonable, but mistaken, belief that a violation of the relevant law has occurred or is likely to occur. See Sylvester, 2011 WL 2165854, at *13 (citing Welch, 536 F.3d at 277); Allen v. Admin. Rev. Bd., 514 F.3d 468, 476-77 (5th Cir. 2008); Melendez v. Exxon Chemicals Americas, ARB No. 96-051, slip op. at 21 (ARB July 14, 2000) (“It is also well established that the protection afforded whistleblowers who raise concerns regarding statutory violations is contingent on meeting the aforementioned `reasonable belief' standard rather than proving that actual violations have occurred.”).

NWC commented on this section and suggested that an additional paragraph be added to this section, addressing the question of extraterritorial application of Section 806 of Sarbanes-Oxley. At the time of its comment, this question was before the ARB for consideration. NWC noted that because the issue of extraterritorial application was pending, the Department of Labor (Department) could “facilitate determination of these issues by making a few clarifications in the regulations.” NWC suggested OSHA add a paragraph 29 CFR 1980.102(c), that provides as follows: “(c) The employee protections of the Act shall have the same extraterritorial application as the Securities Exchange Act, including the Foreign Corrupt Practices Act (FCPA), 15 U.S.C. 78dd-1.” However, since the writing of the comment, the ARB has issued its decision on this question, holding that “Section 806(a)(1) does not allow for its extraterritorial application.” Villanueva v. Core Laboratories NV, No. 09-108, 2011 WL 7021145, at *9 (ARB Dec. 22, 2011), affirmed on other grounds, Villanueva v. U.S. Dep't of Labor, 743 F.3d 103 (5th Cir. 2014). The ARB's decision in Villanueva provides the Secretary's views on the extraterritorial application of the SOX whistleblower provision and OSHA therefore declines to include NWC's suggested paragraph on this issue. No other comments were received on this section and no changes have been made to it.

This section explains the requirements for filing a retaliation complaint under Sarbanes-Oxley. The Dodd-Frank 2010 statutory amendments changed the statute of limitations for filing a complaint from 90 to 180 days after the date on which the violation occurs, or after the date on which the employee became aware of the violation. This change was reflected in the IFR and is continued here. Therefore, to be timely, a complaint must be filed within 180 days of when the alleged violation occurs, or after the date on which the employee became aware of the violation. Under Delaware State College v. Ricks, 449 U.S. 250, 258 (1980), the time of the alleged violation is considered to be when the retaliatory decision has been both made and communicated to the complainant. The time for filing a complaint under Sarbanes-Oxley may be tolled for reasons warranted by applicable case law. For example, OSHA may consider the time for filing a Sarbanes-Oxley complaint equitably tolled if the complainant mistakenly files a complaint with another agency instead of OSHA within 180 days after becoming aware of the alleged violation. EEAC expressed its support for this revision.

The IFR also amended Section 1980.103(b) to change the requirement that whistleblower complaints to OSHA under Sarbanes-Oxley “must be in writing and should include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violations.” Consistent with OSHA's procedural rules under other whistleblower statutes, complaints filed under Sarbanes-Oxley now need not be in any particular form. They may be either oral or in writing. When a complaint is made orally, OSHA will reduce the complaint to writing. If a complainant is not able to file the complaint in English, the complaint may be filed in any language. With the consent of the employee, complaints may be filed by any person on the employee's behalf. As noted below, several comments were received on this section of the interim final rule. No changes have been made in response to the comments. However, the term “email” in paragraph (d) has been changed to “electronic communication transmittal” because OSHA has published an on-line complaint form on its Web site, http://www.whistleblowers.gov/complaint_page.html.

SCSGP commented that it is “very concerned that the proposed `oral complaint' provision will have unintended negative consequences, and [it] urge[s] OSHA not to enact it.” SCSGP further commented that the new rule is “unnecessary because SOX complaints most often are filed by sophisticated professionals,” and that the rule shifts the OSHA investigator's role from one of a neutral fact-finder to an advocate for the complainant. SCSGP also commented that the rule lacks any standard for the investigator's creation of the complaint. SCSGP also raised the concern that the new rule “presents the risk that the complainant will later treat the investigator as an adverse witness in the litigation.” SCSGP explained that in cases where a complainant who proceeds to further stages of the administrative proceeding, or a complainant who transfers their case to federal district court, may seek to modify or expand their original complaint by arguing that the OSHA investigator did not accurately record the complainant's allegations at the time of the initial complaint. SCSGP explained this could place the investigator in the role of an adverse witness and subject him or her to scrutiny for failing to capture the oral complaint in totality.

Similarly, EEAC commented that it questioned the “rationale of eliminating the requirement that a written complaint contain the full details concerning the alleged violation.” EEAC commented that written complaints emphasize the gravity of invoking protection under Sarbanes-Oxley and discourage frivolous complaints. The EEAC also commented on the provision that complaints may be made in any language, stating that “[t]he agency offers no guidance on by whom, if at all, the complaint will be translated into English” nor how a respondent may submit its own proposed translation. EEAC respectfully recommended that this final rule make clear how these issues would be resolved. Conversely, Marshall wrote in support of these revisions.

OSHA has considered these comments and adopts the changes made in the IFR. The statutory text of SOX does not require written complaints to OSHA. See 29 U.S.C. 1514A(b)(1)(A). Further, as Marshall noted in his comment, “[m]aking it clear that OSHA can accept oral complaints is better described as a clarification than as an amendment to existing procedures.” Indeed, the Department has long permitted oral complaints under the environmental statutes. See, e.g. , Roberts v. Rivas Environmental Consultants, Inc., ARB No. 97-026, 1997 WL 578330, at *3 n.6 (ARB Sept. 17, 1997) (complainant's oral statement to an OSHA investigator, and the subsequent preparation of an internal memorandum by that investigator summarizing the oral complaint, satisfies the “in writing” requirement of CERCLA, 42 U.S.C. 9610(b), and the Department's accompanying regulations in 29 CFR part 24); Dartey v. Zack Co. of Chicago, No. 1982-ERA-2, 1983 WL 189787, at *3 n.1 (Sec'y of Labor Apr. 25, 1983) (adopting administrative law judge's findings that complainant's filing of a complaint to the wrong DOL office did not render the filing invalid and that the agency's memorandum of the complaint satisfied the “in writing” requirement of the Energy Reorganization Act (“ERA”) and the Department's accompanying regulations in 29 CFR part 24). Moreover, accepting oral complaints under Sarbanes-Oxley is consistent with OSHA's longstanding practice of accepting oral complaints filed under Section 11(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 660(c); Section 211 of the Asbestos Hazard Emergency Response Act of 1986, 15 U.S.C. 2651; Section 7 of the International Safe Container Act of 1977, 46 U.S.C. 80507; and STAA, 49 U.S.C. 31105. This change also accords with the Supreme Court's decision in Kasten v. Saint-Gobain Performance Plastics Corp., in which the Court held that the anti-retaliation provision of the Fair Labor Standards Act, which prohibits employers from discharging or otherwise discriminating against an employee because such employee has “filed any complaint,” protects employees' oral complaints of violations of the Fair Labor Standards Act. 563 U.S. __, 131 S. Ct. 1325 (2011).

Furthermore, OSHA believes that its acceptance of oral complaints under Sarbanes-Oxley is most consistent with the ARB's decisions in Sylvester and Evans v. U.S. Environmental Protection Agency, ARB No. 08-059 (ARB Jul. 31, 2012). In Sylvester, noting that OSHA does not require complaints under Sarbanes-Oxley to be in any form and that under 29 CFR 1980.104(b) OSHA has a duty, if appropriate, to interview the complainant to supplement the complaint, the ARB held that the federal court pleading standards established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) do not apply to Sarbanes-Oxley whistleblower complaints filed with OSHA. 2011 WL 2165854, at *9-10. In Evans, the ARB articulated the legal standard for analyzing the sufficiency of a whistleblower complaint brought before an ALJ. The ARB held that the whistleblower complaint need only give “fair notice” of the protected activity and adverse action to withstand a motion to dismiss for failure to state a claim. ARB No. 08-059, slip op. at *9. Furthermore, the ARB instructed that an ALJ should not act on a motion to dismiss for failure to state a claim until it is clear that the complainant has filed a document that articulates the claims presented to the OALJ for hearing following OSHA's findings. Id., at *8. Complaints filed with OSHA under this section are simply “informal documents that initiate an investigation into allegations of unlawful retaliation in violation of the [Act].” Id., at *7. Permitting a complainant to file a complaint orally or in writing or in any language is consistent with the purpose of the complaint filed with OSHA, which is to trigger an investigation regarding whether there is reasonable cause to believe that retaliation occurred.

Furthermore, upon receipt of a complaint, OSHA must provide the respondent notice of the filing of the complaint, the allegations contained in the complaint, and the substance of the evidence supporting the complaint. 49 U.S.C. 42121(b)(2)(A); 29 CFR 1980.104(a). OSHA may not undertake an investigation of the complaint unless the complaint, supplemented as appropriate by interviews of the complainant, makes a prima facie allegation of retaliation. 49 U.S.C. 42121(b)(2)(B); 29 CFR 1980.104(e). If OSHA commences an investigation, the respondent has the opportunity to submit a response to the complaint and meet with the investigator to present statements from witnesses. 49 U.S.C. 42121(b)(2)(A); 29 CFR 1980.104(b). To fulfill these statutory responsibilities, when OSHA receives an oral complaint, OSHA gathers as much information as it can from the complainant about the complainant's allegations so that the respondent will be able to adequately respond to the complaint and so that OSHA may properly determine the scope of any investigation into the complaint. OSHA also generally provides the respondent with a copy of its memorandum memorializing the complaint, and the respondent has the opportunity to request that OSHA clarify the allegations in the complaint if necessary.

Regarding SCSGP's comment that the investigator may be later called as an adverse witness in litigation, OSHA understands this comment to be implicating the issue of adding untimely claims or exhaustion of remedies. Under Section 806, an employee must file a complaint with OSHA alleging a violation of this provision and allow OSHA an opportunity to investigate before pursuing the claim before an ALJ or in federal court. 18 U.S.C. 1514A(b)(1)(A). Failure to raise a particular claim or allegation before OSHA can result in that claim being barred in subsequent administrative or federal court proceedings for failure to “exhaust administrative remedies.” See, e.g. , Willis v. Vie Financial Group, Inc., No. Civ. A. 04-435, 2004 WL 1774575 (E.D. Pa. Aug. 6, 2004) (barring a complainant's claim because he did not amend his OSHA complaint to assert post-complaint retaliation); Carter v. Champion Bus, Inc., ARB No. 05-076, slip op. at *9 (ARB Sept. 29, 2006) (the ARB generally will not consider arguments or evidence first raised on appeal); Saporito v. Central Locating Services, Ltd., ARB No. 05-004, slip op. at *9 (ARB Feb. 28, 2006) (the ARB was unwilling to entertain an argument from the complainant that he had engaged in certain activity where he had not presented that theory to the ALJ, and where the argument was supported by no “references to the record, legal authority or analysis.”). While a dispute could arise in a whistleblower complaint filed orally regarding whether OSHA properly recorded the allegations at issue in the complaint and whether the complainant properly exhausted his administrative remedies, this possibility is not new, as OSHA's historical practice has been to accept complaints orally and reduce them to writing and to supplement complaints with interviews of the complainant as necessary. In addition, the possibility that a dispute could arise regarding the claims raised to OSHA does not outweigh the benefits to whistleblowers and the public of allowing such complaints to be filed orally with OSHA.

In response to EEAC's comment regarding OSHA's acceptance of complaints in any language, OSHA believes that its procedures are fair and ensure the accuracy of the complaint and evidence submitted to OSHA. Under current practices for receiving complaints, OSHA uses professional interpretive services to communicate with employees speaking a language other than English. The OSHA investigator will reduce the complaint to writing, in English, as communicated to him or her through the interpretive service. Translation services are also available to interview complainants throughout an investigation. Additionally, should the complainant wish to submit his or her complaint in another language in writing, or submit additional documents throughout the investigation in another language, OSHA will use document translation services. Should a respondent wish to see an original document, as well as any translation, this information may be exchanged in accordance with the procedures and privacy protections set forth in Section 1980.104 (discussed in detail below). A respondent then would be free to submit his or her own translation of any such document to the OSHA investigator in accordance with the investigation procedures set forth in Section 1980.104.

This section describes the procedures that apply to the investigation of Sarbanes-Oxley complaints. Paragraph (a) of this section outlines the procedures for notifying the parties and the SEC of the complaint and notifying respondents of their rights under these regulations. Paragraph (b) describes the procedures for the respondent to submit its response to the complaint. Paragraph (c) of the IFR specified that OSHA will provide to the complainant (or the complainant's legal counsel if the complainant is represented by counsel) a copy of all of respondent's submissions to OSHA that are responsive to the complainant's whistleblower complaint at a time permitting the complainant an opportunity to respond to those submissions. Paragraph (c) further provided that before providing such materials to the complainant, OSHA will redact them in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. Paragraph (d) of this section discusses confidentiality of information provided during investigations.

Paragraph (e) of this section sets forth the applicable burdens of proof. Paragraph (f) describes the procedures OSHA will follow prior to the issuance of findings and a preliminary order when OSHA has reasonable cause to believe that a violation has occurred.

The Sarbanes-Oxley whistleblower provision mandates that an action under the Act is governed by the burdens of proof set forth in AIR21, 49 U.S.C. 42121(b). The statute requires that a complainant make an initial prima facie showing that a protected activity was “a contributing factor” in the adverse action alleged in the complaint, i.e., that the protected activity, alone or in combination with other factors, affected in some way the outcome of the employer's decision. The complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing. Complainant's burden may be satisfied, for example, if he or she shows that the adverse action took place within a temporal proximity of the protected activity, or at the first opportunity available to the respondent, giving rise to the inference that it was a contributing factor in the adverse action. See, e.g. , Porter v. Cal. Dep't of Corr., 419 F.3d 885, 895 (9th Cir. 2005) (years between the protected activity and the retaliatory actions did not defeat a finding of a causal connection where the defendant did not have the opportunity to retaliate until he was given responsibility for making personnel decisions).

If the complainant does not make the prima facie showing, the investigation must be discontinued and the complaint dismissed. See Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) (noting that the burden-shifting framework of the ERA, which is the same as that under Sarbanes-Oxley, serves a “gatekeeping function” that “stem[s] frivolous complaints”). Even in cases where the complainant successfully makes a prima facie showing, the investigation must be discontinued if the employer “demonstrates, by clear and convincing evidence,” that it would have taken the same adverse action in the absence of the protected activity. 49 U.S.C. 42121(b)(2)(B)(ii). Thus, OSHA must dismiss a complaint under Sarbanes-Oxley and not investigate further if either: (1) The complainant fails to meet the prima facie showing that protected activity was a contributing factor in the adverse action; or (2) the employer rebuts that showing by clear and convincing evidence that it would have taken the same adverse action absent the protected activity.

Assuming that an investigation proceeds beyond the gatekeeping phase, the statute requires OSHA to determine whether there is reasonable cause to believe that protected activity was a contributing factor in the alleged adverse action. A contributing factor is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.” Marano v. Dep't of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) (Whistleblower Protection Act, 5 U.S.C. 1221(e)(1)); see, e.g. , Lockheed Martin Corp., 717 F.3d at 1136. For protected activity to be a contributing factor in the adverse action, “a complainant need not necessarily prove that the respondent's articulated reason was a pretext in order to prevail,” because a complainant alternatively can prevail by showing that the respondent's “reason, while true, is only one of the reasons for its conduct” and that another reason was the complainant's protected activity. See Klopfenstein v. PCC Flow Techs. Holdings, Inc., No. 04-149, 2006 WL 3246904, at *13 (ARB May 31, 2006) (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)) (discussing contributing factor test under the Sarbanes-Oxley whistleblower provision), aff'd sub nom. Klopfenstein v. Admin. Review Bd., U.S. Dep't of Labor, 402 F. App'x 936, 2010 WL 4746668 (5th Cir. 2010).

If OSHA finds reasonable cause to believe that the alleged protected activity was a contributing factor in the adverse action, OSHA may not order relief if the employer demonstrates by “clear and convincing evidence” that it would have taken the same action in the absence of the protected activity. See 49 U.S.C. 42121(b)(2)(B)(iv). The “clear and convincing evidence” standard is a higher burden of proof than a “preponderance of the evidence” standard. Clear and convincing evidence is evidence indicating that the thing to be proved is highly probable or reasonably certain. Clarke v. Navajo Express, Inc., No. 09-114, 2011 WL 2614326, at *3 (ARB June 29, 2011) (discussing burdens of proof under analogous whistleblower provision in STAA).

NWC and the EEAC commented on this section. NWC suggested clarification of what “other applicable confidentiality laws” might apply to redaction of respondent's submissions, before providing them to the complainant. NWC also suggested several additions and revisions to this section, as well as to Section 1980.107, to further protect the confidentiality of complainants. NWC pointed to the confidentiality provisions of Section 922 of the Dodd-Frank Act, creating a whistleblower program under section 21F of the Securities Exchange Act, 3 as well as recent developments in the United States Tax Court, and suggested that the Department bring its own confidentiality practices into conformity.

The EEAC commented that it was extremely concerned that the modifications made in this section in the IFR would increase the amount of information provided to the complainant during the investigation but reduce information provided to the respondent. As OSHA explained in the preamble to the IFR, those revisions were aimed at aiding OSHA's ability to conduct a “full and fair investigation.” EEAC submitted that the same logic supports providing respondents with all of the information that OSHA receives from the complainant during the investigation. Specifically, EEAC suggested that OSHA retain the former language in paragraph (a) regarding notice to the respondent upon receipt of a complaint, and revise paragraph (c) to provide that the same information will be provided to respondents as is provided to complainants during the investigation. EEAC also suggested paragraph (f) include language that if the complainant submits new information at this stage, the employer will be given a copy and the opportunity to respond before OSHA makes a final determination on the complaint.

Regarding NWC's suggestion that OSHA provide more specific information about the confidentiality laws that may protect portions of the information submitted by a respondent, OSHA anticipates that the vast majority of respondent submissions will not be subject to any confidentiality laws. However, in addition to the Privacy Act, a variety of confidentiality provisions may protect information submitted during the course of an investigation. For example, a respondent may submit information that the respondent identifies as confidential commercial or financial information exempt from disclosure under the Freedom of Information Act (FOIA). OSHA's procedures for handling information identified as confidential during an investigation are explained in OSHA's Whistleblower Investigations Manual available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=506.

Additionally, OSHA has considered NWC's suggestions regarding complainants' confidentiality. OSHA agrees that protecting complainants' confidentiality and privacy to the extent possible under the law is essential. However, OSHA believes that existing procedures and the Privacy Act of 1974, 5 U.S.C. 552a, et seq., provide sufficient safeguards. The Whistleblower Investigations Manual instructs that while a case is an open investigation, information contained in the case file generally may not be disclosed to the public. Once a case is closed, complainants continue to be protected from third party public disclosure under the Privacy Act. 5 U.S.C. 552a(k)(2). However, if a case moves to the ALJ hearing process, it becomes a public proceeding and the public has a right of access to information under various laws and the Constitution. See Newport v. Calpine Corp., ALJ No. 2007-ERA-00007, slip op. at *6 (Feb. 12, 2008), available at http://www.oalj.dol.gov/PUBLIC/WHISTLEBLOWER/DECISIONS/ALJ_DECISIONS/ERA/2007ERA00007A.PDF (discussing hearings before the ALJ under the analogous statutory provisions of the ERA and the public right of access). Information submitted as evidence during these proceedings becomes the exclusive record for the Secretary's decision. Public disclosure of the record for the Secretary's decision is governed by the Freedom of Information Act and the Privacy Act. Id. A party may request that a record be sealed to prevent disclosure of such information. However, the Constitution and various federal laws cited in Newport govern the granting of such a motion; OSHA cannot circumvent these authorities by rulemaking. See also Thomas v. Pulte Homes, Inc., ALJ No. 2005-SOX-00009, slip op. at *2-3 (Aug. 9, 2005) (noting that in order to prevent disclosure of such information, a moving party must request a protective order pursuant to the OALJ rules of procedure; the standard for granting such a motion is high and the burden of making a showing of good cause rests with the moving party).

In response to EEAC's comments and suggestions, OSHA agrees that respondents must be afforded fair notice of the allegations and substance of the evidence against them. OSHA also believes that the input of both parties in the investigation is important to ensuring that OSHA reaches the proper outcome during its investigation. Thus, in response to EEAC's comments, Section 1980.104(a) has been revised to more closely mirror AIR21's statutory requirement, incorporated by Sarbanes-Oxley, in 49 U.S.C. 42121(b)(1) that after receiving a complaint, the Secretary shall notify the respondent of the filing of the complaint, of the allegations contained in the complaint, and of the substance of the evidence supporting the complaint. In response to EEAC's comment regarding paragraph (c), OSHA notes that its current policy is to request that each party provide the other parties with a copy of all submissions to OSHA that are responsive to the whistleblower complaint. Where the parties do not so provide, OSHA will ensure that each party is provided with such information, redacted as appropriate. OSHA will also ensure that each party is provided with an opportunity to respond to the other party's submissions. OSHA has revised paragraph (c) to clarify these policies regarding information sharing during the course of an investigation. Further information regarding OSHA's nonpublic disclosure and information sharing policies may also be found in the Whistleblower Investigations Manual. Regarding EEAC's suggestion for paragraph (f), it is already OSHA's policy to provide the respondent a chance to review any additional evidence on which OSHA intends to rely that is submitted by the complainant at this stage and to provide the respondent an opportunity to respond to any such additional evidence. This policy is necessary to achieve the purpose of paragraph (f), which is to afford respondent due process prior to ordering preliminary reinstatement as required by the Supreme Court's decision in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987). OSHA also notes that the Whistleblower Investigations Manual provides guidance to investigators on sharing information with both parties throughout the investigation.

OSHA has made additional minor edits throughout this section to clarify the applicable procedures and burdens of proof.

Throughout this section, minor changes were made as needed to clarify the provision without changing its meaning. This section provides that, on the basis of information obtained in the investigation, the Assistant Secretary will issue, within 60 days of the filing of a complaint, written findings regarding whether or not there is reasonable cause to believe that the complaint has merit. If the findings are that there is reasonable cause to believe that the complaint has merit, in accordance with the statute, 18 U.S.C. 1514A(c), the Assistant Secretary will order “all relief necessary to make the employee whole,” including preliminary reinstatement, back pay with interest, and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees.

Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. In the Secretary's view, 26 U.S.C. 6621 provides the appropriate rate of interest to ensure that victims of unlawful retaliation under Sarbanes-Oxley are made whole. The Secretary has long applied the interest rate in 26 U.S.C. 6621 to calculate interest on back pay in whistleblower cases. Doyle v. Hydro Nuclear Servs., Nos. 99-041, 99-042, 00-012, 2000 WL 694384, at *14-15, 17 (ARB May 17, 2000); see also Cefalu v. Roadway Express, Inc., ARB Case No. 09-070, 2011 WL 1247212, at *2 (ARB Mar. 17, 2011); Pollock v. Cont'l Express, ARB Case Nos. 07-073, 08-051, 2010 WL 1776974, at *8 (ARB Apr. 10, 2010); Murray v. Air Ride, Inc., ARB Case No. 00-045, slip op. at 9 (ARB Dec. 29, 2000). Section 6621 provides the appropriate measure of compensation under Sarbanes-Oxley and other DOL-administered whistleblower statutes because it ensures the complainant will be placed in the same position he or she would have been in if no unlawful retaliation occurred. See Ass't Sec'y v. Double R. Trucking, Inc., ARB Case No. 99-061, slip op. at 5 (ARB July 16, 1999) (interest awards pursuant to § 6621 are mandatory elements of complainant's make-whole remedy). Section 6621 provides a reasonably accurate prediction of market outcomes (which represents the loss of investment opportunity by the complainant and the employer's benefit from use of the withheld money) and thus provides the complainant with appropriate make-whole relief. See EEOC v. Erie Cnty., 751 F.2d 79, 82 (2d Cir. 1984) (“[s]ince the goal of a suit under the [Fair Labor Standards Act] and the Equal Pay Act is to make whole the victims of the unlawful underpayment of wages, and since [§ 6621] has been adopted as a good indicator of the value of the use of money, it was well within” the district court's discretion to calculate prejudgment interest under § 6621); New Horizons for the Retarded, 283 N.L.R.B. No. 181, 1173 (May 28, 1987) (observing that “the short-term Federal rate [used by § 6621] is based on average market yields on marketable Federal obligations and is influenced by private economic market forces”). Similarly, as explained in the interim final rule, daily compounding of the interest award ensures that complainants are made whole for unlawful retaliation in violation of Sarbanes-Oxley. 76 FR 68088.

In ordering back pay, OSHA also will require the respondent to submit the appropriate documentation to the Social Security Administration (SSA) allocating the back pay to the appropriate calendar quarters. Requiring the reporting of back pay allocation to the SSA serves the remedial purposes of Sarbanes-Oxley by ensuring that employees subjected to retaliation are truly made whole. See Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (NLRB Aug. 8, 2014). As the NLRB explained, when back pay is not properly allocated to the years covered by the award, a complainant may be disadvantaged in several ways. First, improper allocation may interfere with a complainant's ability to qualify for any old-age Social Security benefit. Id. at *3 (“Unless a [complainant's] multiyear backpay award is allocated to the appropriate years, she will not receive appropriate credit for the entire period covered by the award, and could therefore fail to qualify for any old-age social security benefit.”). Second, improper allocation may reduce the complainant's eventual monthly benefit. Id. As the NLRB explained, “if a backpay award covering a multi-year period is posted as income for 1 year, it may result in SSA treating the [complainant] as having received wages in that year in excess of the annual contribution and benefit base.” Id. Wages above this base are not subject to Social Security taxes, which reduces the amount paid on the employee's behalf. “As a result, the [complainant's] eventual monthly benefit will be reduced because participants receive a greater benefit when they have paid more into the system.” Id. Finally, “social security benefits are calculated using a progressive formula: although a participant receives more in benefits when she pays more into the system, the rate of return diminishes at higher annual incomes.” Therefore, a complainant may “receive a smaller monthly benefit when a multiyear award is posted to 1 year rather than being allocated to the appropriate periods, even if social security taxes were paid on the entire amount.” Id. The purpose of a make-whole remedy such as back pay is to put the complainant in the same position the complainant would have been absent the prohibited retaliation. That purpose is not achieved when the complainant suffers the disadvantages described above. The Secretary believes that requiring proper SSA allocation is necessary to achieve the make-whole purpose of a back pay award.

The findings and, where appropriate, preliminary order, advise the parties of their right to file objections to the findings of the Assistant Secretary and to request a hearing. If no objections are filed within 30 days of receipt of the findings, the findings and any preliminary order of the Assistant Secretary become the final decision and order of the Secretary. If objections are timely filed, any order of preliminary reinstatement will take effect, but the remaining provisions of the order will not take effect until administrative proceedings are completed.

The provision that reinstatement would not be appropriate where the respondent establishes that the complainant is a security risk was removed from 1980.105(a)(1) in the IFR. OSHA believes that the determination of whether reinstatement is inappropriate in a given case is best made on the basis of the facts of each case and the relevant case law, and thus it is not necessary in these procedural rules to define the circumstances in which reinstatement is not a proper remedy. This amendment also makes these procedural regulations consistent with the rules under STAA, NTSSA, FRSA, and CPSIA, which do not contain this statement.

SCSGP, EEAC, and Marshall commented on this removal, as well as on the overall guidance provided when determining whether preliminary reinstatement is appropriate. SCSGP commented that the IFR lacked “any standards governing the issuance of preliminary reinstatement orders” and that the rule should contain appropriate safeguards that preliminary reinstatement is warranted under the circumstances, rather than presuming that reinstatement is proper. SCSGP suggested that OSHA include in the final rule a list of non-exhaustive factors to be considered by the courts to determine when reinstatement is appropriate, including whether hostility exists between the employee and the company, and whether the employee's position no longer exists. EEAC “urge[d] OSHA to reinstate this `security risk' exception” in the final rule. EEAC also submitted that OSHA's reasoning for removing the exception is flawed (that the determination of whether reinstatement is inappropriate in a given case should be based on the factual circumstances of that case). EEAC first pointed to Sarbanes-Oxley's incorporation of the AIR21 rules and procedures and that the security risk exception is consistent with OSHA's whistleblower regulations promulgated under AIR21. EEAC also noted that the security risk exception was predicated on the respondent establishing that the complainant is in fact a security risk prior to the exception taking effect and thus would be determined on a case-by-case basis in this manner. Marshall wrote in support of the removal of the security risk language and supported the explanation that determinations of whether reinstatement is appropriate should be based on the facts of the particular case. Marshall noted that the Act itself does not contain any statutory prohibition of reinstatement under certain circumstances.

OSHA disagrees that the rule requires any further guidance on when preliminary reinstatement is appropriate. First, OSHA emphasizes that Congress intended that employees be preliminarily reinstated to their positions if OSHA finds reasonable cause to believe that they were discharged in violation of Sarbanes-Oxley, thus creating the presumption it is the appropriate remedy. Neither Sarbanes-Oxley nor AIR21 specify any statutorily predetermined circumstances under which preliminary reinstatement would be inappropriate. Furthermore, although the regulations governing proceedings under AIR21 reference a security risk exception, this exception is not in the statutory text incorporated by Sarbanes-Oxley. See 18 U.S.C. 1514(b)(1)(A) (. . . shall be governed “under the rules and procedures set forth in section 42121(b) of title 49, United States Code.”). This reference to AIR21's statutory procedures does not impose an obligation for OSHA to also incorporate any procedural regulations promulgated under AIR21 not mandated by the statute.

OSHA agrees that there may be circumstances where preliminary reinstatement is inappropriate. However, OSHA believes that the rule as drafted provides sufficient safeguards for these situations, as well as sufficient guidance to OSHA, ALJs, and the ARB as to when those safeguards may be appropriate. First, the rule provides the ALJ and ARB discretion to grant a stay of an order of preliminary reinstatement (See Sections 1980.106(b) and 1980.110(b)). As discussed in detail in the discussion of Section 1980.106, ALJs and the ARB can refer to long-standing precedential case law in making this determination. Second, in appropriate circumstances, OSHA may order economic reinstatement in lieu of actual reinstatement, which is also discussed in detail below. In Hagman v. Washington Mutual Bank, Inc., the ALJ delineated several factors to consider when making this determination. ALJ No. 2005-SOX-73, 2006 WL 6105301, at *32 (Dec. 19, 2006) (noting that while reinstatement is the “preferred and presumptive remedy” under Sarbanes-Oxley, “[f]ront pay may be awarded as a substitute when reinstatement is inappropriate due to: (1) An employee's medical condition that is causally related to her employer's retaliatory action; (2) manifest hostility between the parties; (3) the fact that claimant's former position no longer exists; or (4) the fact that employer is no longer in business at the time of the decision”) (internal citations omitted). Many of these factors are similar to the factors SCSGP suggested be included in the rule. Thus, given the existing safeguards in place and sufficient guidance for when such safeguards are appropriate, OSHA declines to include the security risk exception in the final rule and declines to add additional guidance to the rule for when preliminary reinstatement is appropriate.

As mentioned above, in appropriate circumstances, in lieu of preliminary reinstatement, OSHA may order that the complainant receive the same pay and benefits that he received prior to his termination, but not actually return to work. Such “economic reinstatement” is akin to an order of front pay and is frequently employed in cases arising under Section 105(c) of the Federal Mine Safety and Health Act of 1977, which protects miners from retaliation. 30 U.S.C. 815(c); see, e.g., Sec'y of Labor on behalf of York v. BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020, at *1 (June 26, 2001). Front pay has been recognized as a possible remedy in cases under Sarbanes-Oxley and other whistleblower statutes enforced by OSHA in circumstances where reinstatement would not be appropriate. See, e.g. , Hagman, 2006 WL 6105301; Hobby v. Georgia Power Co., ARB Nos. 98-166, 98-169 (ARB Feb. 9, 2001), aff'd sub nom. Hobby v. U.S. Dept. of Labor, No. 01-10916 (11th Cir. Sept. 30, 2002) (unpublished) (noting circumstances where front pay may be available in lieu of reinstatement but ordering reinstatement); Brown v. Lockheed Martin Corp., ALJ No. 2008-SOX-00049, 2010 WL 2054426, at *55-56 (ALJ Jan. 15, 2010) (same). Congress intended that employees be preliminarily reinstated to their positions if OSHA finds reasonable cause to believe that they were discharged in violation of Sarbanes-Oxley. When a violation is found, the norm is for OSHA to order immediate preliminary reinstatement. Neither an employer nor an employee has a statutory right to choose economic reinstatement. Rather, economic reinstatement is designed to accommodate situations in which evidence establishes to OSHA's satisfaction that immediate reinstatement is inadvisable for some reason, notwithstanding the employer's retaliatory discharge of the employee. In such situations, actual reinstatement might be delayed until after the administrative adjudication is completed as long as the employee continues to receive his or her pay and benefits and is not otherwise disadvantaged by a delay in reinstatement. There is no statutory basis for allowing the employer to recover the costs of economically reinstating an employee should the employer ultimately prevail in the whistleblower adjudication.

SCSGP and Marshall commented on the issue of economic reinstatement. Marshall commented that the inclusion of the above language in the preamble is of “crucial significance for whistleblowers,” but continued that OSHA's recognition that actual reinstatement remains the presumptive remedy is “essential as well.” Marshall explained that “[a]ctual reinstatement protects interests that economic reinstatement cannot. Nonetheless, economic reinstatement must be available as a remedy for situations where a whistleblower cannot return to the workplace.”

SCSGP addressed the issue of allowing an employer to recover the costs of economically reinstating an employee should the employer ultimately prevail in the whistleblower adjudication. SCSGP believes OSHA's interpretation, that there is no statutory basis for allowing such reimbursement, “compromises an employer's due process rights” and raises other concerns. SCSGP commented that conversely there is “no statutory basis for allowing the employee to keep the value of economic reinstatement where his or her claim is unfounded.” SCSGP noted that in situations where economic reinstatement is awarded, an employer may have to pay both the labor cost of filling the position, and the cost of the economic reinstatement awarded to the complainant. Where the employer ultimately prevails, it would not recover the duplicative cost, an outcome which SCSGP believes is grossly unfair. SCSGP recommended that OSHA include an additional paragraph in this section, allowing that economic reinstatement be available only upon consent of all parties, or upon the condition that the complainant will reimburse the employer in the event the employer ultimately prevails.

OSHA disagrees that economic reinstatement without a mechanism for reimbursement violates the employer's rights under the Due Process clause. The Supreme Court has addressed the issue of what is required to afford an employer procedural due process prior to ordering preliminary reinstatement in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987). In Roadway Express, the Court held that “minimum due process for the employer in this context requires notice of the employee's allegations, notice of the substance of the relevant supporting evidence, an opportunity to submit a written response, and an opportunity to meet with the investigator and present statements from rebuttal witnesses.” Id. at 264. The Court did not require any mechanism for reimbursing the employer for wages paid during actual preliminary reinstatement should the employer ultimately prevail in the litigation. Because economic reinstatement is akin to actual reinstatement, OSHA believes the same requirements apply when ordering economic reinstatement.

Furthermore, OSHA disagrees that there is no statutory basis for precluding reimbursement of economic reinstatement. As discussed above, Congress intended that employees be preliminarily reinstated to their positions if OSHA finds reasonable cause to believe that they were discharged in violation of Sarbanes-Oxley. However, the statutory procedural scheme does not allow for reimbursement to the employer if actual preliminary reinstatement was ordered and yet the employer ultimately prevailed. Thus, there is no statutory basis to reimburse an employer in that instance. Because economic reinstatement is a substitute for preliminary reinstatement, this same reasoning would apply for not awarding an employer reimbursement for any front pay the employee receives should the employer ultimately prevail. OSHA therefore declines to allow for such reimbursement where Congress has not so provided.

To be effective, objections to the findings of the Assistant Secretary must be in writing and must be filed with the Chief Administrative Law Judge, U.S. Department of Labor, within 30 days of receipt of the findings. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of the filing; if the objection is filed in person, by hand-delivery or other means, the objection is filed upon receipt. The filing of objections also is considered a request for a hearing before an ALJ. Although the parties are directed to serve a copy of their objections on the other parties of record, as well as the OSHA official who issued the findings and order, the Assistant Secretary, and the Department of Labor's Associate Solicitor for Fair Labor Standards, the failure to serve copies of the objections on the other parties of record does not affect the ALJ's jurisdiction to hear and decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 2005). Throughout this section, minor changes were made as needed to clarify the provision without changing its meaning.

The IFR revised paragraph (b) to note that a respondent's motion to stay the Assistant Secretary's preliminary order of reinstatement will be granted only based on exceptional circumstances. This revision clarified that a stay is only available in “exceptional circumstances,” because the Secretary believes that a stay of the Assistant Secretary's preliminary order of reinstatement under Sarbanes-Oxley would be appropriate only where the respondent can establish the necessary criteria for equitable injunctive relief, i.e., irreparable injury, likelihood of success on the merits, and a balancing of possible harms to the parties, and the public interest favors a stay.

SCSGP, EEAC, and Marshall commented on this section. Marshall wrote in support of this revision, noting that “[p]reliminary reinstatement protects a number of important values; it should be ordered and enforced unless the respondent is able to make a credible and persuasive showing that these values are overwhelmed.” SCSGP and EEAC requested that OSHA provide additional guidance regarding when a stay of an order for preliminary reinstatement would be appropriate. SCSGP suggested that OSHA modify paragraph (b) to provide “meaningful standards governing when an ALJ should stay a preliminary order of reinstatement.” SCSGP's comment included concerns that the current standard, based on “exceptional circumstances,” may unduly constrain the ALJ's discretion and authority, as well as leave the ALJ without guidance as to when a stay is appropriate. EEAC commented that in its view, the term “`exceptional circumstances' implies a limitation far narrower than OSHA says that it intends.” EEAC recommended that the language in the preamble referring to the requirements to obtain equitable injunctive relief be added to the regulatory text. EEAC also suggested this addition to Section 1980.110(b), which covers appeals to the ARB.

It is well established that the standard for a stay of preliminary reinstatement is the standard needed to obtain a preliminary injunction. A party must prove: Likely irreparable injury; likelihood of success on the merits; the balancing of hardships favors an injunction; and the public interest favors an injunction. Johnson v. U.S. Bancorp, ARB No. 13-014, 2013 WL 2902820, at *2 (ARB May 21, 2013); see also Evans v. T-Mobil USA, Inc., ALJ No. 2012-SOX-00036 (ALJ May 21, 2013) (granting stay of reinstatement). This traditional four-element test is applied in all federal courts. See Winter v. N.R.D.C., 555 U.S. 7, 20 (2008). The Department's ALJs and ARB have also applied this standard in a number of cases prior to the issuance of the IFR. See, e.g. , Welch v. Cardinal Bankshares Corp., No. 06-062, 2006 WL 3246902 (ARB Mar. 31, 2006); Bechtel and Jacques v. Competitive Technologies, Inc., ALJ Nos. 2005-SOX-0033, 2005-SOX-0034, 2005 WL 4888999 (ALJ Mar. 29, 2005). The regulation and its preamble, existing ALJ and ARB decisions, and other federal case law clearly delineate the standard for a successful motion to stay a preliminary order of reinstatement. OSHA thus declines to provide further guidance on this issue.

EEAC also commented that there may be situations in which the complainant does not desire reinstatement, preliminary or otherwise. EEAC suggested the final rule contain language addressing this situation, allowing for the parties to come to an agreement to not order reinstatement. OSHA declines to include such language in this rule. Under Sarbanes-Oxley, reinstatement of the complainant to his or her former position is the presumptive remedy in merit cases and is a critical component of making the complainant whole. As Marshall notes in his comment, actual reinstatement protects interests that economic reinstatement cannot so effectively address. For example, reinstatement serves to reassure other employees through the complainant's presence in the workplace that they too will be protected from retaliation for reporting violations of the law. By ordering preliminary reinstatement in cases involving discharge where OSHA has reasonable cause to believe that a statutory violation has occurred, OSHA properly places the burden upon the employer to make a bona fide offer of reinstatement. In doing so, OSHA also ensures that the employee is not forced to make a decision about whether he or she wants to return to the workplace until the employer actually makes such an offer.

This section adopts the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges, as set forth in 29 CFR part 18 subpart A. Hearings are to commence expeditiously, except upon a showing of good cause or unless otherwise agreed to by the parties. Hearings will be conducted de novo, on the record. ALJs continue to have broad discretion to limit discovery where necessary to expedite the hearing. Formal rules of evidence will not apply, but rules or principles designed to assure production of the most probative evidence will be applied. The administrative law judge may exclude evidence that is immaterial, irrelevant, or unduly repetitious. Throughout this section, minor changes were made as needed to clarify the provision without changing its meaning.

NWC commented in part on this section, requesting language be added to further protect the confidentiality of complainants. The discussion of the agency's consideration of this comment is included in the discussion of Section 1980.104, above.

The Assistant Secretary, at his or her discretion, may participate as a party or amicus curiae at any time in the administrative proceedings under Sarbanes-Oxley. For example, the Assistant Secretary may exercise his or her discretion to prosecute the case in the administrative proceeding before an ALJ; petition for review of a decision of an ALJ, including a decision based on a settlement agreement between the complainant and the respondent, regardless of whether the Assistant Secretary participated before the ALJ; or participate as amicus curiae before the ALJ or in the ARB proceeding. Although OSHA anticipates that ordinarily the Assistant Secretary will not participate, the Assistant Secretary may choose to do so in appropriate cases, such as cases involving important or novel legal issues, multiple employees, alleged violations that appear egregious, or where the interests of justice might require participation by the Assistant Secretary. The Securities and Exchange Commission, if interested in a proceeding, also may participate as amicus curiae at any time in the proceedings.

No comments were received on this section. However, paragraph (a)(2) has been revised to specify that parties must send copies of documents to OSHA and to the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, only upon request of OSHA, or when OSHA is participating in the proceeding, or when service on OSHA and the Associate Solicitor is otherwise required by these rules. Other minor changes were made as needed to clarify the provision without changing its meaning.

This section sets forth the requirements for the content of the decision and order of the ALJ, and includes the standard for finding a violation under Sarbanes-Oxley. Specifically, the complainant must demonstrate (i.e. prove by a preponderance of the evidence) that the protected activity was a “contributing factor” in the adverse action. See, e.g., Allen, 514 F.3d at 475 n.1 (“The term `demonstrates' means to prove by a preponderance of the evidence.”). If the employee demonstrates that the alleged protected activity was a contributing factor in the adverse action, the employer, to escape liability, must demonstrate by “clear and convincing evidence” that it would have taken the same action in the absence of the protected activity. See id.

Paragraph (c) provides that OSHA's determination to dismiss the complaint without an investigation or without a complete investigation pursuant to Section 1980.104 is not subject to review. Thus, Section 1980.109(c) clarifies that OSHA's determinations on whether to proceed with an investigation under Sarbanes-Oxley and whether to make particular investigative findings are discretionary decisions not subject to review by the ALJ. The ALJ hears cases de novo and, therefore, as a general matter, may not remand cases to OSHA to conduct an investigation or make further factual findings. Paragraph (c) also clarifies that the ALJ can dispose of a matter without a hearing if the facts and circumstances warrant. In its comments, EEAC expressed support for this clarification.

Paragraph (d) notes the remedies that the ALJ may order under the Act and provides that interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. Paragraph (d) has been revised to note that when back pay is ordered, the order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters. Paragraph (e) requires that the ALJ's decision be served on all parties to the proceeding, the Assistant Secretary, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards. Paragraph (e) also provides that any ALJ decision requiring reinstatement or lifting an order of reinstatement by the Assistant Secretary will be effective immediately upon receipt of the decision by the respondent. All other portions of the ALJ's order will be effective 14 days after the date of the decision unless a timely petition for review has been filed with the ARB.

No comments were received on this section. However, the statement that the decision of the ALJ will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the petition for review was deleted from Section 1980.110(a) and moved to paragraph (e) of this section. Additionally, OSHA has revised the period for filing a timely petition for review with the ARB to 14 days rather than 10 business days. With this change, the final rule expresses the time for a petition for review in a way that is consistent with the other deadlines for filings before the ALJs and the ARB in the rule, which are also expressed in days rather than business days. This change also makes the final rule congruent with the 2009 amendments to Rule 6(a) of the Federal Rules of Civil Procedure and Rule 26(a) of the Federal Rules of Appellate Procedure, which govern computation of time before the federal courts and express filing deadlines as days rather than business days. Accordingly, the ALJ's order will become the final order of the Secretary 14 days after the date of the decision, rather than after 10 business days, unless a timely petition for review is filed. As a practical matter, this revision does not substantively alter the window of time for filing a petition for review before the ALJ's order becomes final.

Other minor changes were made as needed to clarify the provision without changing its meaning.

Upon the issuance of the ALJ's decision, the parties have 14 days within which to petition the ARB for review of that decision. If no timely petition for review is filed with the ARB, the decision of the ALJ becomes the final decision of the Secretary and is not subject to judicial review. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of filing of the petition; if the petition is filed in person, by hand delivery or other means, the petition is considered filed upon receipt.

The appeal provisions in this part provide that an appeal to the ARB is not a matter of right but is accepted at the discretion of the ARB. The parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections may be deemed waived. The ARB has 30 days to decide whether to grant the petition for review. If the ARB does not grant the petition, the decision of the ALJ becomes the final decision of the Secretary. If a timely petition for review is filed with the ARB, any relief ordered by the ALJ, except for that portion ordering reinstatement, is inoperative while the matter is pending before the ARB. When the ARB accepts a petition for review, the ALJ's factual determinations will be reviewed under the substantial evidence standard.

This section also provides that, based on exceptional circumstances, the ARB may grant a motion to stay an ALJ's preliminary order of reinstatement under the Act, which otherwise would be effective, while review is conducted by the ARB. The Secretary believes that a stay of an ALJ's preliminary order of reinstatement under Sarbanes-Oxley would be appropriate only where the respondent can establish the necessary criteria for equitable injunctive relief, i.e., irreparable injury, likelihood of success on the merits, a balancing of possible harms to the parties, and the public interest favors a stay. The EEAC's comment regarding guidance on when a stay of preliminary reinstatement is appropriate addressed this provision of the rule, as well Section 1980.106(b). OSHA's response to this comment is explained in detail above, in the discussion of Section 1980.106.

If the ARB concludes that the respondent has violated the law, it will order the remedies listed in paragraph (d). Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. Paragraph (d) has been revised to note that when back pay is ordered, the order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters. If the ARB determines that the respondent has not violated the law, an order will be issued denying the complaint.

NWC requested that the agency make several revisions to this section that would “further the goal of deciding cases on their merits.” The requested revisions included: (1) Change the time limit for a petition for review from 10 days to 30 days; (2) require that a petition for review set forth legal issues showing good cause to allow full briefing; (3) change the provision that objections to legal conclusions not raised in petitions for review “will ordinarily” be deemed waived, to “may” be deemed waived; and (4) specify in the regulation that the ARB may extend the time to submit petitions for review upon good cause shown. NWC stated that these revisions would “advance the remedial purposes of the Act by lowering the procedural hurdles to a decision on the merits.”

OSHA first notes that the IFR did use the phrase “may” be deemed waived regarding objections not specifically raised in a petition for review. This change was made as a result of comments submitted by NWC on other whistleblower rules published by OSHA. See, e.g. , Procedures for the Handling of Retaliation Complaints Under Section 219 of the Consumer Product Safety Improvement Act of 2008, 77 FR 40494, 40500-01 (July 10, 2012); Procedures for the Handling of Retaliation Complaints Under the Employee Protection Provision of the Surface Transportation Assistance Act of 1982 (STAA), as Amended, 77 FR 44121, 44131-32 (July 27, 2012).

However, OSHA declines to adopt NWC's additional suggestions relating to this section. First, OSHA declines to extend the time limit to petition for review because the shorter review period is consistent with the practices and procedures followed in OSHA's other whistleblower programs. Furthermore, parties may file a motion for extension of time to appeal an ALJ's decision, and the ARB has discretion to grant such extensions. However, as explained above, OSHA has revised the period to petition for review of an ALJ decision to 14 days rather than 10 business days. As a practical matter, this revision does not substantively alter the window of time for filing a petition for review before the ALJ's order becomes final. In addition, Section 1980.110(c), which provides that the ARB will issue a final decision within 120 days of the conclusion of the ALJ hearing, was similarly revised to state that the conclusion of the ALJ hearing will be deemed to be 14 days after the date of the decision of the ALJ, rather than after 10 business days, unless a motion for reconsideration has been filed with the ALJ in the interim. Like the revision to Section 1980.110(a), this revision does not substantively alter the length of time before the ALJ hearing will be deemed to have been concluded.

Finally, OSHA believes that use of the word “may,” as discussed above, adequately addresses NWC's underlying concern that grounds not raised in a petition for review may be barred from consideration before the ARB.

Non-substantive changes were made to paragraph (c) of this section to clarify when all hearings before an ALJ are considered concluded, and thus when the time for the ARB to issue a final decision begins to run.

This section provides the procedures and time periods for withdrawal of complaints, the withdrawal of findings and/or preliminary orders by the Assistant Secretary, and the withdrawal of objections to findings and/or orders. It also provides for approval of settlements at the investigative and adjudicative stages of the case. No comments were received on this section. Minor changes were made as needed to this section and section title to clarify the provision without changing its meaning.

This section describes the statutory provisions for judicial review of decisions of the Secretary and requires, in cases where judicial review is sought, that the ARB or the ALJ submit the record of proceedings to the appropriate court pursuant to the rules of such court.

Mr. Levi commented on this section, stating that paragraph (b) created a new rule. Paragraph (b) provided, “A final order of the ARB is not subject to judicial review in any criminal or other civil proceeding.” As explained in the IFR, no new rules were added to this section; rather, the section was simply reorganized and renumbered. The 2004 version of the rule concluded paragraph (a) with the sentence, “A final order of the Board is not subject to judicial review in any criminal or other civil proceeding.” This sentence implemented the statutory provision found at 49 U.S.C. 42121(b)(4)(B), “Limitation on Collateral Attack,” adopted by the Act, which provides, “[a]n order of the Secretary of Labor with respect to which review could have been obtained under subparagraph (A) shall not be subject to judicial review in any criminal or other civil proceeding.” This sentence was moved to be a stand-alone provision in paragraph (b) of the IFR. The word “Board” was changed to “ARB;” however, both designations refer to the same body (Administrative Review Board). The old paragraph (b) was then renumbered to paragraph (c) in the IFR. The text of this paragraph was also slightly revised, as discussed in the preamble to the IFR, to clarify that “rules of the court” refers to the Federal Rules of Appellate Procedure and local rules of the relevant federal court of appeals. Most of these non-substantive revisions have been adopted in this final rule. Paragraph (c) of the final rule has been revised to provide that “If a timely petition for review is filed, the record of a case, including the record of proceedings before the ALJ, will be transmitted by the ARB or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court.” This revision simply reflects that in some instances the ALJ, and not the ARB, will have possession of the record to be reviewed in the U.S. court of appeals.

However, upon further review of the statutory language, OSHA has revised paragraph (b) in the final rule to more accurately reflect the statutory provisions found in AIR21, adopted by Sarbanes-Oxley. The rule as written previously and in the IFR referred only to limitation on collateral attack of final orders of the ARB. AIR21's limitation on collateral attacks applies to all final orders of the Secretary. 49 U.S.C. 42121(b)(4)(A)-(B). Thus, paragraph (b) has been revised accordingly.

This section describes the Secretary's power under Sarbanes-Oxley to obtain judicial enforcement of orders and the terms of a settlement agreement. While some courts have declined to enforce preliminary orders of reinstatement under Sarbanes-Oxley, the Secretary's consistent position has been that such orders are enforceable in federal district court. See Solis v. Tenn. Commerce Bancorp, Inc., No. 10-5602 (6th Cir. 2010) (order granting stay of preliminary injunction); Bechtel v. Competitive Technologies, Inc., 448 F.3d 469 (2d Cir. 2006); Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552 (W.D. Va. 2006) (decision vacated, appeal dismissed, No. 06-2295 (4th Cir. Feb. 20, 2008)). See also Brief for the Intervenor/Plaintiff-Appellee Secretary of Labor, Solis v. Tenn. Commerce Bancorp, Inc., No. 10-5602 (6th Cir. 2010); Brief for the Intervenor/Plaintiff-Appellant United States of America, Welch v. Cardinal Bankshares Corp., No. 06-2295 (4th Cir. Feb. 20, 2008); Brief for the Intervenor/Plaintiff-Appellee Secretary of Labor, Bechtel v. Competitive Technologies, Inc., 448 F.3d 469 (2d Cir. 2006) (No. 05-2402).

In its comments, SCSGP asserted that “this position is directly at odds with the express language of the statute and the federal court decisions that have addressed this issue. . . .” In support of its position, SCSGP cited the above decisions in Solis, Bechtel, and Welch. However, as noted by Marshall in its comment, an inspection of these cases shows that none of these decisions held by a majority that federal courts lack jurisdiction to enforce preliminary orders of reinstatement. In Bechtel, the Second Circuit vacated the preliminary order of reinstatement but failed to agree on a basis for which to do so. 448 F.3d at 476. In the three-judge panel, one judge found that the court lacked jurisdiction to enforce the order, thus holding to vacate the order. Id. at 470-76. A second judge found that the order could not be enforced on separate, due process grounds, and concurred in the result on this basis. Id. at 476-81. The third judge dissented from the result and found that the court did have jurisdiction to enforce orders of preliminary reinstatement. Id. at 483-90. Additionally, in Solis, the Sixth Circuit applied traditional injunctive relief standards (“balancing of the harms”) to grant a stay of a preliminary order of reinstatement and thus did not reach the jurisdictional issue on the merits. No. 10-5602, slip op. at 2 (6th Cir. May 25, 2010). Finally, in Welch, the district court granted the defendant's motion to dismiss the complainant's enforcement proceeding because the ALJ's opinion did not make clear whether he was ordering preliminary reinstatement, as opposed to simply recommending reinstatement. 407 F. Supp. 2d at 776-77. The court in Welch specifically noted that it was “unnecessary to consider whether it would have had the authority to enforce the preliminary order of reinstatement had such an order been properly entered.” Id. at 777 n.2. Therefore, the Secretary's position is not at odds with the federal courts that have addressed this issue, as none has reached the issue on the merits with a majority of the court.

Additionally, the Secretary's position is consistent with the plain language of the statute. By incorporating the procedures of AIR21, Sarbanes-Oxley authorizes district courts to enforce orders, including preliminary orders of reinstatement, issued by the Secretary under the Act. See 18 U.S.C. 1514A(b)(2)(A) (adopting the rules and procedures set forth in AIR21, 49 U.S.C. 42121(b)). Under 49 U.S.C. 42121(b), which provides the procedures applicable to investigations of whistleblower complaints under Sarbanes-Oxley, the Secretary must investigate complaints under the Act and determine whether there is reasonable cause to believe that a violation has occurred. “[I]f the Secretary of Labor concludes that there is a reasonable cause to believe that a violation . . . has occurred, the Secretary shall accompany the Secretary's findings with a preliminary order providing the relief prescribed by paragraph (3)(B),” which includes reinstatement of the complainant to his or her former position. 49 U.S.C. 42121(b)(2)(A) and (b)(3)(B)(ii). The respondent may file objections to the Secretary's preliminary order and request a hearing. However, the filing of such objections “shall not operate to stay any reinstatement remedy contained in the preliminary order.” 49 U.S.C. 42121(b)(2)(A).

Paragraph (5) of 49 U.S.C. 42121(b) provides for judicial enforcement of the Secretary's orders, including preliminary orders of reinstatement. That paragraph states “[w]henever any person has failed to comply with an order issued under paragraph (3), the Secretary of Labor may file a civil action in the United States district court for the district in which the violation was found to occur to enforce such order. In actions brought under this paragraph, the district courts shall have jurisdiction to grant all appropriate relief including, but not limited to, injunctive relief and compensatory damages.” 49 U.S.C. 42121(b)(5). Preliminary orders that contain the relief of reinstatement prescribed by paragraph (3)(B) are judicially enforceable orders, issued under paragraph (3). Brief for the Intervenor/Plaintiff-Appellee Secretary of Labor, Solis v. Tenn. Commerce Bancorp, Inc., No. 10-5602, at 23-25 (6th Cir. 2010).

This analysis is not altered by the fact that paragraph (3) bears the heading “Final Order.” SCSGP asserted that this title and paragraph (5)'s reference to only paragraph (3) provides clear and unmistakable language that preliminary orders are not final orders enforceable under paragraph (3). However, sections of a statute should not be read in isolation, but rather in conjunction with the provisions of the entire Act, considering both the object and policy of the Act. See, e.g., Brown & Williamson Tobacco Corp. v. FDA, 153 F.3d 155, 162 (4th Cir. 1998), aff'd, 529 U.S. 120 (2000). See also United States v. Buculei, 262 F.3d 322, 331 (4th Cir. 2001) (a statute's title cannot limit the plain meaning of its text), cert. denied, 535 U.S. 962 (2002). Focusing on the title to subsection (b)(3) instead of reading section 42121(b) as a coherent whole negates the congressional directives that preliminary reinstatement must be ordered upon a finding of reasonable cause and that such orders not be stayed pending appeal. 49 U.S.C. 42121(b)(2)(A)'s clear statement that objections shall not stay any preliminary order of reinstatement demonstrates Congress's intent that the Secretary's preliminary orders of reinstatement be immediately effective. Reading 49 U.S.C. 42121(b)(5) to allow enforcement of such orders is the only way to effectuate this intent.

Furthermore, the Secretary's interpretation is buttressed by the legislative history of Sarbanes-Oxley and AIR21. Before Congress enacted Sarbanes-Oxley, the Department of Labor had interpreted this AIR21 provision to permit judicial enforcement of preliminary reinstatement orders. Accordingly, Congress is presumed to have been aware of the Department's interpretation of 49 U.S.C. 42121(b)(5) and to have adopted that interpretation when it incorporated that provision by reference. See Lorillard v. Pons, 434 U.S. 575, 580-81 (1978) (“[W]here . . . Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.”). The Secretary's interpretation is further supported by the legislative history of AIR21, which makes clear that Congress regarded preliminary reinstatement as crucial to the protections provided in the statute. Brief for the Intervenor/Plaintiff-Appellee Secretary of Labor, Solis v. Tenn. Commerce Bancorp, Inc., No. 10-5602, at 41-44 (6th Cir. 2010) (reviewing legislative history of AIR21). Interpreting 49 U.S.C. 42121(b)(5) to permit judicial enforcement of the Secretary's preliminary orders of reinstatement is necessary to carry out Congress' clearly expressed intent that whistleblowers be immediately reinstated upon the Secretary's finding of reasonable cause to believe that retaliation has occurred. Sarbanes-Oxley also permits the person on whose behalf the order was issued under Sarbanes-Oxley to obtain judicial enforcement of orders and the terms of a settlement agreement. 18 U.S.C. 1514A(b)(2)(A) incorporating 49 U.S.C. 42121(b)(6). Accordingly, OSHA declines to make the changes to this section suggested by SCSGP.

OSHA has made two changes that are not intended to have substantive effects. First, OSHA has revised this section slightly to more closely parallel the provisions of the statute regarding the proper venue for an enforcement action. Second, the list of remedies that formerly appeared in this section has been moved to Section 1980.114. This revision does not reflect a change in the Secretary's views regarding the remedies that are available under Sarbanes-Oxley in an action to enforce an order of the Secretary. The revision has been made to better parallel the statutory structure of Sarbanes-Oxley and AIR21, which contemplate enforcement of a Secretary's order and specify the remedies that are available in an action for de novo review of a retaliation complaint in district court. Compare 49 U.S.C. 42121(b)(5) and (6) to 18 U.S.C. 1514A(c).

This section sets forth Sarbanes-Oxley's provisions allowing a complainant to bring an original de novo action in district court, alleging the same allegations contained in the complaint filed with OSHA, if there has been no final decision of the Secretary within 180 days of the filing of the complaint. It is the Secretary's position that complainants may not initiate an action in federal court after the Secretary issues a final decision, even if the date of the final decision is more than 180 days after the filing of the complaint. The purpose of the “kick-out” provision is to aid the complainant in receiving a prompt decision. That goal is not implicated in a situation where the complainant already has received a final decision from the Secretary. In addition, permitting the complainant to file a new case in district court in such circumstances could conflict with the parties' rights to seek judicial review of the Secretary's final decision in the court of appeals.

OSHA received two comments on the inclusion of this statement of the Secretary's position in the preamble to the IFR. Mr. Levi wrote in opposition to this language, while the EEAC wrote in support of this language, and requested that it be inserted into the regulatory text. Mr. Levi noted his belief that this position is in conflict with the rule itself, which allows complainants to “kick-out” under the specified circumstances. To support his position, Mr. Levi quoted from the preamble to the 2004 version of the rules. In that preamble, the agency stated, and Mr. Levi quoted, “The Act might even be interpreted to allow a complainant to bring an action in Federal court after receiving a final decision from the Board, if that decision was issued more than 180 days after the filing of the complaint.” 69 FR 52111(Aug. 24, 2004). The 2004 preamble used the words “might even” to denote that this is a possible interpretation of the language. However, in that preamble, the agency went on to state, “The Secretary believes that it would be a waste of the resources of the parties, the Department, and the courts for complainants to pursue duplicative litigation.” Id. The language in the preamble to the 2011 IFR, continued and retained above, simply asserts the Secretary's longstanding position, which is consistent with the statute, the 2004 rule, the 2004 preamble language, and the 2011 rule, that once a complainant has received a final decision from the Secretary, the goal of the “kick-out” provision is no longer implicated.

Mr. Levi also commented that this position creates an impediment to a complainant's right to access the federal district courts, and forces the complainant to give up one right or another: Access to the ARB or access to the district courts. However, as discussed above, the Secretary believes that access to district courts under this provision is intended to provide the complainant with a speedy adjudication of his complaint; it is not intended to create two simultaneous proceedings or a de novo review of an unfavorable determination by the Secretary. Congress provided a clear avenue for review in federal courts of a final order. As provided in Section 1980.112, either party aggrieved by a final order of the ALJ or ARB may still appeal to the federal courts of appeals. The Secretary's position does not adversely affect this right, but rather is intended to prevent interference with this right. Therefore, after considering Mr. Levi and EEAC's comments, the agency has decided to retain the language in the preamble to the rule, but refrain from adding it to the regulatory text.

The IFR amended paragraph (b) of this section to require complainants to provide file-stamped copies of their complaint within seven days after filing a complaint in district court to the Assistant Secretary, the ALJ, or the ARB, depending on where the proceeding is pending, rather than requiring such notice fifteen days in advance of such filing. The IFR noted a copy of the complaint also must be provided to the Regional Administrator, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. This provision is necessary to notify the agency that the complainant has opted to file a complaint in district court. This provision is not a substitute for the complainant's compliance with the requirements for service of process of the district court complaint contained in the Federal Rules of Civil Procedure and the local rules of the district court where the complaint is filed. These revisions are continued in this final rule. However, OSHA has replaced the requirement of providing a copy of the complaint to the Regional Administrator with a requirement that a copy be provided to the “OSHA official who issued the findings and/or preliminary order.” This non-substantive change is intended to reflect that an official other than the Regional Administrator may be the official who issued the findings and/or preliminary order.

The NWC noted its appreciation for this revision to the rule, and suggested that “[t]he Department's wise policy on notice . . . should now be replicated in the Department's regulations under other whistleblower protection laws.” OSHA is conducting several rulemakings for whistleblower proceedings at this time and intends to include this revised notice provision where applicable.

In addition to the changes noted above, OSHA has revised this section to clarify the provision and more closely mirror the language used in the statute. For example, paragraph (b) now incorporates the provisions of the statute specifying the remedies and burdens of proof in a district court action.

This section provides that in circumstances not contemplated by these rules or for good cause the ALJ or the ARB may, upon application and notice to the parties, waive any rule as justice or the administration of Sarbanes-Oxley requires. No comments were received on this section.

This rule contains a reporting provision (filing a retaliation complaint, Section 1980.103) which was previously reviewed and approved for use by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The assigned OMB control number is 1218-0236.

The notice and comment rulemaking procedures of Section 553 of the Administrative Procedure Act (APA) do not apply to “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A). Part 1980 sets forth interpretive rules and rules of agency procedure and practice within the meaning of that section. Therefore, publication in the Federal Register of a notice of proposed rulemaking and request for comments was not required. Although Part 1980 was not subject to the notice and comment procedures of the APA, the Assistant Secretary sought and considered comments to enable the agency to improve the rules by taking into account the concerns of interested persons.

Furthermore, because this rule is procedural and interpretive rather than substantive, the normal requirement of 5 U.S.C. 553(d) that a rule not be effective until at least 30 days after publication in the Federal Register is inapplicable. The Assistant Secretary also finds good cause to provide an immediate effective date for this rule. It is in the public interest that the rule be effective immediately so that parties may know what procedures are applicable to pending cases. Most of the provisions of this rule were in the IFR and have already been in effect since November 3, 2011, so a delayed effective date is unnecessary.

The Department has concluded that this rule is not a “significant regulatory action” within the meaning of Executive Order 12866, reaffirmed by Executive Order 13563, because it is not likely to: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866. Therefore, no economic impact analysis under Section 6(a)(3)(C) of Executive Order 12866 has been prepared. For the same reason, and because no notice of proposed rulemaking was published, no statement is required under Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532. In any event, this rulemaking is procedural and interpretive in nature and is thus not expected to have a significant economic impact. Finally, this rule does not have “federalism implications.” The rule does 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” and therefore is not subject to Executive Order 13132 (Federalism).

The notice and comment rulemaking procedures of Section 553 of the APA do not apply “to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A). Rules that are exempt from APA notice and comment requirements are also exempt from the Regulatory Flexibility Act (RFA). See SBA Office of Advocacy, A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act 9 (May 2012); also found at: http://www.sba.gov/sites/default/files/rfaguide_0512_0.pdf*. This is a rule of agency procedure, practice, and interpretation within the meaning of that section; and therefore the rule is exempt from both the notice and comment rulemaking procedures of the APA and the requirements under the RFA.

This document was prepared under the direction and control of David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health.

Based on forecasted historical low water on the UMR in the fall of 2012, the USACE contracted subsurface rock removal operations in Thebes, IL to mitigate the effects of the forecasted low water event. In order to provide additional safety measures and regulate navigation during low water and the planned rock removal operations, the Coast Guard published a temporary final rule in the Federal Register for an RNA from mile 0.0 to 185.0 UMR (77 FR 75850). The RNA was in effect from December 1, 2012 until March 31, 2013, which is when river levels rebounded and the subsurface rock removal operation was delayed because of high water levels. During the effective period for this temporary RNA, restrictions were enforced for a total of approximately 45 days.

In the fall of 2013, based on changing river conditions, low water was again forecasted and the USACE's contracted subsurface rock removal operations in Thebes, IL were scheduled to resume. The Coast Guard then published a second temporary final rule in the Federal Register re-establishing the RNA (78 FR 70222). Based on the forecasted water levels and the plans and needs for the resumed rock removal operations, the RNA covered a smaller river section extending from mile 0.0 to 109.9 on the UMR. The RNA was implemented to ensure the safety of the USACE contractors and marine traffic during the actual rock removal work, and to support the safe and timely clearing of vessel queues at the conclusion of the work each day. The RNA was in effect from November 4, 2013 until April 12, 2014, but was only enforced from December 10, 2013 until February 19, 2014 due to water levels increasing and forcing the USACE contractors to cease rock removal operations. During the times the RNA was enforced, the Coast Guard worked with the USACE, RIAC, and the USACE contractor to implement river closures and various restrictions to maximize the size of tows that could safely pass while keeping the USACE contractor crews safe. The Coast Guard also assisted in clearing vessel queues after each closure or restriction.

On April 17, 2014, MSU Paducah contacted USACE St. Louis to determine if subsurface rock removal operations will be conducted in the Upper Mississippi River in the vicinity of Thebes, IL in future years. USACE St. Louis reported that such operations are anticipated to continue as river conditions permit, and that there are multiple phases of subsurface rock removal operations remaining. On August 28, 2014 USACE St. Louis notified the Coast Guard that based on recently acquired data, rock removal operations will also be required in the Upper Mississippi River between miles 78.0 and 81.0 at Grand Tower, IL in the future.

USACE St. Louis also informed the Coast Guard that the environmental window for these operations each year moving forward is July 1 to April 12. However, river conditions likely will not permit work for the majority of that timeframe each year, and in some years river conditions may not permit any work on this project to be completed. This project is expected to go on indefinitely when river conditions permit during the allowable times within the environmental windows. For continuity and based on the necessary restrictions, USACE St. Louis requested continued involvement of the Coast Guard for navigation expertise and facilitating restrictions with users of the waterway and the contractor. According to USACE St. Louis, the majority of the rock removal operations will impact vessel traffic and requested that the Coast Guard establish restrictions under 33 CFR part 165, Regulated Navigation Areas and Limited Access Areas to maintain safety of navigation during the rock removal project. The Coast determined that safety zones, one type of Limited Access Area provided for under 33 CFR part 165, will provide the necessary additional safety measures to ensure commerce can continue to navigate safely while the contractors are working. These safety zones limit access to specific areas of the river during rock removal operations rather than creating a larger regulated area encompassing the entire stretch of river where the work may take place.

On November 10, 2014, an interim rule was published in the Federal Register (79 FR 66622). This interim rule was effective upon publication without prior notice through publication in the Federal Register, but also invited comments regarding the creation of permanent safety zones before the rule was published in final form. The Coast Guard received no comments on the interim rule and no requests for public meeting. No public meetings were held. No changes were made to the rule as it was published in the interim rule.

The legal basis and authorities for this rule are found in 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish and define safety zones.

The purpose of these safety zones are to protect persons and vessels while subsurface rock removal operations are ongoing on the UMR from mile 38.0 to mile 46.0 and from mile 78.0 to mile 81.0. The removal operations pose significant safety hazards to vessels and mariners operating on the UMR. At the previous request of RIAC and after reviewing best practices from the previous temporary RNAs in effect in 2012 and 2013, the Coast Guard plans to assist in facilitating the clearing of vessel queues in future years following restricted access on the UMR from mile 38.0 to mile 46.0 and from mile 78.0 to mile 81.0. For these reasons, the Coast Guard is to establishing these safety zones to limit vessel access between mile 38.0 and mile 46.0, and between mile 78.0 and mile 81.0 on the UMR.

No comments were received by the Coast Guard on this rule. No changes to the rule have been made from the interim rule and request for comments.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

This rule establishes safety zones for vessels on all waters of the UMR from mile 38.0 to mile 46.0, and from mile 78.0 to mile 81.0. The safety zones listed in this final rule will only restrict vessel traffic from entering, transiting, or anchoring within specific sections of the UMR. Notifications of enforcement times and restrictions put into effect for these safety zones will be communicated to the marine community via BNM, through outreach with RIAC, and through LNMs. Such notices provide the opportunity for industry to plan transits accordingly and work around the schedule of rock removal operations as necessary. The impacts on navigation will be limited to ensuring the safety of mariners and vessels associated with hazards presented by USACE contractor operations involving subsurface rock removal, and the safe and timely resumption of vessel traffic following any river closures or restrictions associated with subsurface rock removal operations. Restrictions under these safety zones will be the minimum necessary to protect mariners, vessels, the public, and the environment from known or perceived risks.

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

This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit the UMR during USACE contracted subsurface rock removal operations. These safety zones will not have a significant economic impact on a substantial number of small entities for the following reasons. While the safety zones listed in this final rule will restrict vessel traffic from entering, transiting, or anchoring within specific sections of the UMR, this rule does allow for the intermittent passing of vessels. Traffic in this area is limited to almost entirely recreational vessels and commercial towing vessels subject to noticed restrictions and requirements. Notifications to the marine community will be made through BNM, LNM, and communications with RIAC. Notices of changes to the safety zones and enforcement times will also be made. Additionally, deviation from the restrictions may be requested from the COTP Ohio Valley or designated representative and will be considered on a case-by-case basis.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

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

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

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

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

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves creation of safety zones from mile 38.0 to mile 46.0, and from mile 78.0 to mile 81.0 UMR. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under the ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

Accordingly, the interim rule amending 33 CFR part 165 that published at 77 FR 75850 on December 26, 2012, is adopted as a final rule without change.

On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under EPA's regulations at 40 CFR part 50, the 2008 8-hour ozone NAAQS is attained when the 3-year average of the annual fourth highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.075 ppm. 40 CFR 50.15. Ambient air quality monitoring data for the 3-year period must meet a data completeness requirement. The ambient air quality monitoring data completeness requirement is met when the average percent of days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness as determined in Appendix I of part 50.

Upon promulgation of a new or revised NAAQS, the Clean Air Act (CAA or Act) requires EPA to designate as nonattainment any area that is violating the NAAQS, based on the three most recent years of ambient air quality data at the conclusion of the designation process. The Knoxville Area was designated nonattainment for the 2008 8-hour ozone NAAQS on April 30, 2012 (effective July 20, 2012) using 2009-2011 ambient air quality data. See 77 FR 30088 (April 30, 2012). At the time of designation, the Knoxville Area was classified as a Marginal nonattainment area for the 2008 8-hour ozone NAAQS. The Memphis Area was designated nonattainment for the 2008 8-hour ozone NAAQS on April 30, 2012 (effective July 20, 2012) using 2008-2010 ambient air quality data. See 77 FR 30088 (April 30, 2012). At the time of designation, the Memphis Area was classified as a Marginal nonattainment area for the 2008 8-hour ozone NAAQS.

Based on these nonattainment designations, Tennessee was required to develop SIP revisions addressing ozone nonattainment requirements of the CAA for the Knoxville and Memphis Areas. Specifically, pursuant to CAA section 182(a)(3)(B), Tennessee was required to submit a SIP revision addressing emissions statements for these two Areas.

Ground level ozone is not emitted directly into the air, but is created by chemical reactions between oxides of nitrogen (NOX) and volatile organic compounds (VOC) in the presence of sunlight. Emissions from industrial facilities and electric utilities, motor vehicle exhaust, gasoline vapors, and chemical solvents are some of the major sources of NOX and VOC. Section 182(a)(3)(B) of the CAA requires each state with ozone nonattainment areas to submit a SIP revision requiring annual emissions statements to be submitted to the state by the owner or operator of each NOX or VOC stationary source located within a nonattainment area, showing the actual emissions of NOX and VOC from that source.1 The first statement is due three years from the area's nonattainment designation, and subsequent statements are due at least annually thereafter.

On January 5, 2015, Tennessee submitted a SIP revision revising its existing Rule 1200-03-18-.02, “General Provisions and Applicability,” which amends its emissions statement requirements to address the Knoxville and Memphis Areas under CAA section 182(a)(3)(B). EPA is now taking action to approve this SIP revision as meeting the requirements of sections 110 and 182(a)(3)(B) of the CAA for those Areas. More information on EPA's analysis of Tennessee's SIP revision is provided below.

Tennessee's January 5, 2015, submission seeks to modify its SIP to reflect recent changes to the emissions statement requirements in State Rule 1200-03-18-.02(8). EPA initially approved this state regulation into Tennessee's SIP in 1995. See 60 FR 10504 (February 27, 1995). At that time, the regulation applied to stationary sources within Davidson, Rutherford, Shelby, Sumner, Williamson, and Wilson Counties. Tennessee modified State Rule 1200-03-18-.02(8) in 2014 to include Anderson, Blount, and Knox counties; clarify that all owners or operators of stationary sources with actual emissions of 25 tons per year or more of VOC or NOX within these nine counties must generate emissions statements; and allow subject sources in counties that operate their own air pollution program to send these statements to the local permitting authority rather than to the Technical Secretary of the Tennessee Air Pollution Control Board. EPA has determined that this amended regulation meets all of the requirements of CAA section 182(a)(3)(B) for the Knoxville and Memphis Areas because it covers the counties within those nonattainment areas and satisfies the applicability, certification, and other emissions statement criteria contained therein.

EPA is approving Tennessee's January 5, 2015, SIP revision addressing emissions statement requirements because the State's submission meets the requirements of sections 110 and 182 of the CAA. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective May 4, 2015 without further notice unless the Agency receives adverse comments by April 6, 2015.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on May 4, 2015 and no further action will be taken on the proposed rule.

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

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

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

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

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

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

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

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

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 4, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

Therefore, 40 CFR part 52 is amended as follows:

EPA is taking final action to approve Mississippi's February 10, 2012, SIP revision to IBR 1 federal requirements for NSR permitting. Mississippi's February 10, 2012, SIP revision includes changes to the air quality regulations in Air Pollution Control, Section 5 (APC-S-5)—Regulations for the Prevention of Significant Deterioration of Air Quality. These rule changes were provided to comply with Federal NSR PSD permitting requirements. The February 10, 2012, SIP submission updates the IBR date at APC-S-5 to November 4, 2011, for the Federal PSD permitting regulations at 40 CFR 52.21 and portions of 51.166 to include PSD provisions promulgated in the Carbon Dioxide (CO2) Biomass Deferral Rule,2 Particulate Matter (PM10), Surrogate and Grandfather Policy Repeal,3 and Reasonable Possibility Rule.4 However, EPA cannot act on the portion of Mississippi's SIP submission that IBR the July 20, 2011, CO2 Biomass Deferral Rule because the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued a decision on July 12, 2013, in Center for Biological Diversity v. EPA, 722 F.3d 401 (D.C. Cir. 2013) vacating the rule. Accordingly, Mississippi has since submitted a letter to EPA dated October 22, 2014, requesting that the Biomass Deferral Rule provisions from the February 10, 2012, SIP submission be withdrawn from EPA's consideration; therefore these provisions are no longer before EPA for consideration. The letter can be found in Docket ID: EPA-R04-OAR-2012-0798.

On August 6, 2014, EPA published a proposed rulemaking to approve the aforementioned changes to MDEQ's NSR program at APC-S-5. See 79 FR 45733. Comments on the proposed rulemaking were due on or before September 5, 2014. No comments, adverse or otherwise, were received on EPA's August 6, 2014, proposed rulemaking. Pursuant to section 110 of the CAA, EPA is now taking final action to approve the changes to Mississippi's NSR program as provided in EPA's August 6, 2014, proposed rulemaking. EPA's August 6, 2014, proposed rulemaking contains more detailed information regarding Mississippi's SIP revision being approved today, and the rationale for today's final action. Detailed information regarding the Reasonable Possibility Rule and PM10 Surrogate and Grandfather Policy Repeal can be found in EPA's August 6, 2014, proposed rulemaking as well as in the aforementioned final rulemakings. See 72 FR 72607 (December 21, 2007) and 76 FR 28646 (May 18, 2011), respectively. These rulemakings are summarized below. This final action approves a revision to the Mississippi SIP that (1) IBR the PSD provisions promulgated in the PM10 Surrogate and Grandfather Policy Repeal and the Reasonable Possibility Rule, and (2) removes language from the SIP relating to the PM10 Surrogate and Grandfather Policy and the Reasonable Possibility Rule that is no longer relevant.

On December 14, 2007, EPA issued a final rule that provides additional explanation and more detailed criteria to clarify the “reasonable possibility” recordkeeping and reporting standard found in 40 CFR 52.21(r)(6) and 40 CFR 51.165(a)(6) and 51.166(r)(6) of the 2002 NSR reform rules.5 The “reasonable possibility” standard establishes for sources and reviewing authorities the criteria for determining when recordkeeping and reporting are required for a major stationary source undergoing a physical change or change in the method of operation that does not trigger major NSR permitting requirements. The standard also specifies the recordkeeping and reporting requirements for such sources. The December 14, 2007, final rule clarified and required recordkeeping and reporting when the projected increase in emissions to which the “reasonable possibility” test applies equals or exceeds 50 percent of the Act's NSR significance levels for any pollutant. See 72 FR 72607. NSR significance levels are pollutant-specific threshold emission rates (tons per year). If a project results in an emissions increase of a regulated NSR pollutant that equals or exceeds the significance level for that pollutant, the increase is a “significant emissions increase” and NSR permitting requirements would apply. EPA's December 14, 2007, rulemaking clarifying the reasonable possibility provision was in response to the June 24, 2005, remand from the D.C. Circuit Court requiring that EPA either provide an acceptable explanation for its “reasonable possibility” standard or devise an appropriately supported alternative.

MDEQ adopted the NSR Reform rules in the SIP on July 28, 2005, but did not incorporate the “reasonable possibility” provision into their SIP at APC-S-5 due to the remand. In its 2005 PSD regulations at APC-S-5(2.6), MDEQ excluded the following phrase from its IBR of 40 CFR 52.21: “In circumstances where there is a reasonable possibility, within the meaning of paragraph (r)(6)(vi) of 40 CFR 52.21, that a project that is not a part of a major modification may result in a significant emissions increase.” 6 MDEQ's February 10, 2012, SIP revision removes the “reasonable possibility” exclusion at APC-S-5(2.6) and IBR EPA's December 21, 2007, revised definition of “reasonable possibility” into its SIP.

In the NSR PM2.5 Rule,7 EPA finalized regulations to establish the framework for implementing preconstruction permit review for the PM2.5 NAAQS in both attainment and nonattainment areas. This rule included a grandfather provision that allowed PSD applicants that submitted their complete permit application prior to the July 15, 2008, effective date of the NSR PM2.5 Rule to continue to rely on the 1997 PM10 Surrogate Policy rather than amend their application to demonstrate compliance directly with the new PM2.5 requirements. See 73 FR 28321. On May 12, 2011, Mississippi submitted a SIP revision that excluded the PM10 surrogate grandfathering provision at 40 CFR 52.21(i)(1)(xi) from the state's PSD regulations. EPA approved portions of Mississippi's May 12, 2011, SIP revision on September 26, 2012 (77 FR 59095). On May 18, 2011, EPA took final action to repeal the PM2.5 grandfathering provision at 40 CFR 52.21(i)(1)(xi). See 76 FR 28646. Mississippi's February 10, 2012, SIP revision IBR the version of 40 CFR 52.21 that includes the PM10 Surrogate and Grandfathering Rule Repeal and removes the May 12, 2011, PM10 surrogate exclusion language from the PSD regulations at APC-S-5.

EPA is taking final action to approve Mississippi's February 10, 2012, SIP submission that updates the IBR date in Mississippi's SIP (at APC-S-5) to November 4, 2011, for 40 CFR 52.21 and portions of 51.166, to include PSD provisions promulgated in the PM10 Surrogate and Grandfather Policy Repeal and Reasonable Possibility Rule. As stated above and in EPA's August 6, 2014, proposed rulemaking, EPA is not approving the CO2 Biomass Deferral Rule into the Mississippi SIP because of the D.C. Circuit court's July 12, 2013, decision to vacate the rule. Accordingly, on October 22, 2014, MDEQ submitted a letter to EPA requesting that the CO2 Biomass Deferral Rule provisions in the February 10, 2012, SIP submission be withdrawn from EPA consideration; therefore these provisions are no longer before EPA for consideration. Regarding the 2007 Reasonable Possibility Rule, Mississippi's February 10, 2012, SIP revision removes the “reasonable possibility” exclusion at APC-S-5(2.6) and IBR EPA's December 21, 2007, revised definition of “reasonable possibility.”

Mississippi's February 10, 2012, SIP submittal also incorporates into the Mississippi SIP the version of 40 CFR 52.21 as of November 4, 2011, which includes the May 18, 2011, PM10 Surrogate and Grandfather Policy Repeal. Thus, the language previously approved into Mississippi SIP at APC-S-5(2.7) that excludes the grandfathering provision is no longer necessary. Mississippi's February 10, 2012, SIP submittal removes this unnecessary language.

EPA is taking final action to approve Mississippi's February 10, 2012, SIP revision that (1) updates the IBR date in APC-S-5 to November 4, 2011, for the Federal PSD permitting regulations at 40 CFR 52.21 and portions of 51.166 to include the Reasonable Possibility Rule and the PM10 Surrogate and Grandfather Policy Repeal, and (2) removes language from the SIP at APC-S-5 pertaining to the PM10 Surrogate and Grandfather Policy and the Reasonable Possibility Rule that is no longer relevant. EPA has made the determination that these changes to Mississippi's SIP are approvable because they are consistent with section 110 of the CAA and EPA's PSD permitting regulations.

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 4, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register.

In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR part 64 is amended as follows:

The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register.

In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR part 64 is amended as follows:

This final rule implements Amendment 100 to the BSAI FMP and Amendment 91 to the GOA FMP, collectively Amendments 100/91. NMFS published a notice of availability for Amendments 100/91 on May 5, 2014 (79 FR 25558). The comment period on Amendments 100/91 ended on July 7, 2014. NMFS published a proposed rule to implement Amendments 100/91 on May 14, 2014 (79 FR 27557). The comment period on the proposed rule ended on June 13, 2014. NMFS approved Amendments 100/91 on August 4, 2014. Additional detail on this action is provided in the notice of availability for Amendment 100/91 (79 FR 25558, May 5, 2014) and the proposed rule (79 FR 27557, May 14, 2014). NMFS received three comment letters on Amendments 100/91 and the proposed rule.

NMFS manages groundfish fisheries in the exclusive economic zone off Alaska under the BSAI FMP and GOA FMP. The North Pacific Fishery Management Council (Council) prepared the FMPs under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801, et seq. Regulations governing U.S. fisheries and implementing the FMPs appear at 50 CFR parts 600 and 679.

The groundfish fisheries in the BSAI and GOA incidentally catch grenadiers (family Macrouridae) while harvesting other groundfish species. Grenadiers caught off Alaska are comprised of three species: Giant grenadiers (Albatrossia pectoralis), Pacific grenadiers (Coryphaenoides acrolepis), and popeye greandiers (Coryphaenoides cinereus). More than 90 percent of all grenadiers incidentally caught or obtained in surveys are giant grenadiers. Pacific grenadiers and popeye grenadiers typically occur at depths greater than most commercial fisheries or surveys and are rarely encountered (see Section 3.2 of the Analysis for additional detail).

For many years, the Council has considered how best to classify grenadiers in the FMPs. As explained in Section 1.2 of the Analysis (see ADDRESSES), from 1980 to 2010, grenadiers were included in the FMPs in the nonspecified species category. Nonspecified species were defined as a residual category of species and species groups which had no current or foreseeable economic value or ecological importance, which were taken in the groundfish fishery as incidental catch and were in no apparent danger of depletion, and for which virtually no data existed that would allow population assessments.

In 2010, the Council recommended and NMFS removed the nonspecified species category from the FMPs when the FMPs were revised to meet the requirements of the Magnuson-Stevens Act as amended by the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2007 (Pub. L. 109-479). The amended Magnuson-Stevens Act required NMFS and the Council to establish annual catch limits (ACLs) and accountability measures (AMs) for fisheries in the FMP. The Council recommended and NMFS implemented Amendment 96 to the BSAI FMP and Amendment 87 to the GOA FMP to meet these requirements (Amendments 96/87, 75 FR 61639, October 6, 2010). The nonspecified species, including grenadiers, were removed from the FMPs because these species were too poorly understood to set ACLs and AMs or to develop a management regime.

Amendments 96/87 also amended the FMPs to organize the species remaining in the FMPs according to the National Standard 1 guidelines (§ 600.310). In the National Standard 1 guidelines, NMFS recommends two categories for species in an FMP: “Stocks in the fishery” and “ecosystem component (EC) species.”

“Stocks in the fishery” are defined in the National Standard 1 guidelines (§ 600.310(d)(2)). “Stocks in the fishery” include (1) stocks that are targeted, and retained for sale or personal use; (2) stocks that are not directly targeted but are taken incidentally in other directed fisheries, and are retained for sale or personal use; and (3) stocks not targeted or retained but are taken as incidental catch and for which overfishing or overfished status may be a concern.

NMFS created the EC species category to encourage ecosystem approaches to management and to incorporate ecosystem considerations for species that are not “stocks in the fishery” (74 FR 3178, January 16, 2009). EC species are defined in the National Standard 1 guidelines (§ 600.310(d)(5)). In order to be designated an EC species, the species or species group should be: (1) A non-target species or species group; (2) not subject to overfishing, overfished, or approaching an overfished condition; (3) not likely to become subject to overfishing or overfished in the absence of conservation and management measures; and (4) not generally retained for sale or personal use.

Amendments 96/87 established the EC category in the FMPs, and designated prohibited species (which include salmon, steelhead trout, crab, halibut, and herring) and forage fish (as defined in Table 2c to part 679 and § 679.20(i)) as EC species in the FMPs. For EC species, NMFS maintained conservation regulations applicable to the specific EC species. These include prohibiting the retention of prohibited species, prohibiting directed fishing for forage fish, and establishing a limit on the incidental harvest of forage fish while directed fishing for other groundfish species, known as a maximum retainable amount (MRA), of 2 percent. Regulations at § 679.2 define the term “directed fishing.” Regulations at § 679.20(e) describe the application and calculation of MRAs.

When the Council recommended Amendments 96/87, it recognized that as information on a nonspecified species improves, it would consider moving that species back into the FMP, either as a “stock in the fishery” or as an EC species. In 2010, the Council initiated an analysis to consider moving grenadiers back into the FMPs. The Council determined that sufficient information exists for grenadiers to address them in the FMPs, as reflected in the Analysis prepared for this action (see ADDRESSES). The Analysis provides the best available information on grenadiers and considers two action alternatives: Include grenadiers in the FMP as an EC species, or include grenadiers in the FMP as “stocks in the fishery.”

In February 2014, the Council voted unanimously to recommend Amendments 100/91 to the FMPs to add grenadiers to the EC category in the FMPs. The Council and NMFS recognized that adding grenadiers to the FMPs in the EC category acknowledges their role in the ecosystem and limits the groundfish fisheries' potential impact on grenadiers. Adding grenadiers to the EC category allows for improved data collection and catch monitoring appropriate for grenadiers given their abundance, distribution, and catch.

The Council considered the requirements of the Magnuson-Stevens Act and the National Standard 1 guidelines in making its recommendation. The preamble to the proposed rule (79 FR 27557, May 14, 2014) and the Analysis prepared for this action (see ADDRESSES) describe how grenadiers meet the four factors for inclusion into the EC category rather than as a “stock in the fishery.” That description is briefly summarized here.

Grenadiers are not a targeted species group and are not generally retained for sale or personal use. Grenadiers have no current or foreseeable economic value. Section 3.4 of the Analysis explains that grenadiers are incidentally caught in deep water trawl and hook-and-line fisheries, but are not actively targeted or retained. Thus, there is no evidence that grenadiers are presently being targeted or purposely retained.

Grenadiers are not generally retained for sale or personal consumption. As explained in Section 3.4.4 of the Analysis, attempts to create a marketable product from giant grenadiers caught off Alaska have been unsuccessful given the poor quality of the resulting product. No current market exists for grenadiers, and it is unlikely that one will be developed in the foreseeable future.

Grenadiers are not generally retained for personal use. As explained in Section 3.4 of the Analysis, a small portion of the total catch of grenadiers is known to be retained for use as bait (e.g., 3 metric tons (mt) (6,614 lb.) in the GOA in 2013). Currently, reporting requirements on the retention of grenadiers for bait is not required, but is recorded voluntarily. This information is the best available, and it indicates that grenadiers are not generally retained for bait.

Grenadiers are not subject to overfishing, overfished, or approaching an overfished condition, and are not likely to become subject to overfishing or overfished in the absence of conservation and management measures. As explained in Section 3.3 of the Analysis, NMFS has been conducting a stock assessment for grenadiers since 2006. Since 2010, the stock assessment has been used to estimate grenadier biomass, an overfishing level (OFL), and an acceptable biological catch (ABC). NMFS estimates the incidental catch of grenadiers in the groundfish fisheries using observer data collected under the North Pacific Groundfish and Halibut Observer Program (see regulations at § 679.50).

According to the 2014 stock assessment (see ADDRESSES), NMFS estimates that grenadier biomass in the BSAI is 1,286,734 mt (2.8 billion lb.), the OFL is 100,365 mt (211 million lb.), the ABC is 75,274 mt (165 million lb.), and the estimated catch is 5,320 mt (11.7 million lb., mean catch for 2003 through 2013). Estimated catch of grenadiers in the BSAI represents approximately 0.4 percent of the estimated biomass, approximately 5 percent of the estimated OFL, and approximately 7 percent of the estimated ABC.

According to the 2014 stock assessment (see ADDRESSES), NMFS estimates that grenadier biomass in the GOA is 524,624 mt (1.2 billion lb.), the OFL is 40,921 mt (90 million lb.), the ABC is 30,691 mt (68 million lb.), and the estimated catch is 8,769 mt (19 million lb., mean catch for 2003 through 2013). Estimated catch of grenadiers in the GOA represents approximately 1 percent of the estimated biomass, approximately 21 percent of the estimated OFL, and approximately 28 percent of the estimated ABC.

In addition to adding grenadiers to the EC category in the FMPs under Amendments 100/91, the Council recommended NMFS implement regulations for groundfish fishery participants to limit and monitor the catch of grenadiers. This final rule will:

• Require recordkeeping and reporting of grenadiers in the BSAI and GOA groundfish fisheries;

• Add two grenadier species codes;

• Add grenadier product recovery rates (PRRs);

• Prohibit directed fishing for grenadiers; and

• Establish a grenadier MRA of 8 percent.

To require recordkeeping and reporting of grenadiers, this final rule adds a definition for grenadiers and revises the definition for non-allocated or nonspecified species at § 679.2. This final rule also modifies regulations at § 679.5 to require a vessel operator or manager in a BSAI or GOA groundfish fishery to record and report retained and discarded grenadier catch. NMFS notes that this regulation is expected to improve the collection of information on the catch and retention of grenadiers. Specifically, this regulation improves the ability for NMFS to monitor the retention of grenadiers for use as bait, or in the unlikely event that grenadiers are retained for sale.

This final rule modifies regulations in Table 2c to part 679 to add two grenadier species codes so that NMFS can track the retention of giant grenadiers and other grenadier species. This final rule removes grenadiers from Table 2d to part 679. Section 2 of the Analysis notes that nearly all grenadiers encountered in the groundfish fisheries are giant grenadiers; therefore, it is not necessary to establish more than two species codes for grenadiers (one for giant grenadiers and one for all other grenadier species) to provide the information necessary to adequately monitor grenadier catch.

This final rule modifies Table 3 to part 679 to include PRRs for grenadiers of 100 percent for whole fish, 50 percent for headed and gutted fish, and 24.3 percent for fillets. These PRRs are established based on food science studies of grenadiers that estimated product recovery rates (see Section 2.2 of the Analysis for additional detail). In this final rule, NMFS also adds the standard PRRs to Table 3 of 17 percent for meal, zero percent for infested or decomposed fish, and 100 percent for discards for grenadiers. NMFS uses a standard PRR of 17 percent for meal, zero percent for infested or decomposed fish, and 100 percent for discards for all groundfish species. The proposed rule inadvertently omitted a row in Table 3 to part 679 that assigns these standard PRRs to grenadiers. This final rule corrects that administrative error in the proposed rule.

These regulatory changes enable NMFS to collect data on the harvest and use of grenadier catch retained in the groundfish fisheries. The changes in recordkeeping and reporting, definition of grenadier species codes, and grenadier PRRs aid NMFS in determining if grenadiers become generally retained for sale or personal use, and provide the information needed in any potential future consideration to modify the designation of grenadiers in the FMPs as a “stock in the fishery” should a fishery for grenadiers develop.

This final rule revises regulations at § 679.20(i) and § 679.22(i) to prohibit directed fishing for grenadiers at all times in the BSAI and GOA groundfish fisheries. NMFS is prohibiting directed fishing as a precautionary measure to prevent groundfish fishermen from directed fishing for grenadiers without a clear and conscious decision by the Council and NMFS to provide that opportunity. This prohibition is consistent with the regulations for other EC species. NMFS prohibits directed fishing for forage fish and prohibits retaining or possessing prohibited species, except as provided under the Prohibited Species Donation Program. Prohibiting directed fishing prevents the development of an uncontrolled fishery on grenadiers in the absence of management measures.

This final rule adds a grenadier incidental catch species MRA of 8 percent to Table 10 to part 679 and Table 11 to part 679. The MRA is the percentage of the retained catch of a species closed for directed fishing (incidental catch species) to the retained catch of a species open for directed fishing (basis species). An 8 percent MRA would allow vessels fishing for groundfish to retain a quantity of grenadiers equal to but no more than 8 percent of the round weight or round weight equivalent of groundfish species open to directed fishing that are retained on board the vessel during a fishing trip. The requirement to not exceed MRA proportions at any time during a trip limits the vessel operators' ability to maximize incidental catch of grenadiers.

NMFS made one change to Table 3 to part 679 to include standard PRRs for meal, infested or decomposed fish, and discarded fish. As explained above, these standard PRRs were inadvertently excluded from the proposed rule. NMFS made no changes to the final rule in response to comments.

NMFS received three letters of public comment during the public comment periods for Amendments 100/91 and the proposed rule. NMFS received letters from environmental organizations and a member of the public. NMFS summarized these letters into 17 separate comments, and responds to them below.

Comment 1: Disapprove Amendments 100/91 because they violate the statutory requirements of the Magnuson-Stevens Act. The Magnuson-Stevens Act states that the agency must prepare an FMP for each fishery that requires conservation and management. The EC species classification for grenadiers is not consistent with the Magnuson-Stevens Act conservation and management requirements. Categorizing grenadiers as “stocks in the fishery” would better minimize bycatch.

Disapprove Amendments 100/91 because they do not contain measures to minimize grenadier bycatch in the groundfish fisheries. Include a prohibited species catch (PSC) limit for grenadiers to limit groundfish fishing once that PSC limit is reached.

Response: In approving Amendments 100/91, NMFS determined that these amendments comply with the statutory requirements of the Magnuson-Stevens Act. As explained in the preamble to the proposed rule, the Council and NMFS reviewed the available information and determined that grenadiers should not be classified as “stocks in the fishery” and that they do not require conservation and management under section 303(a) of the Magnuson-Stevens Act. As noted in this preamble, and the preamble to the proposed rule, the Council and NMFS determined that grenadiers meet all of the criteria for classification as an EC species consistent with National Standard 1 guidelines (§ 600.310).

NMFS notes that the Council can analyze and recommend, and NMFS can implement, any measures appropriate to address grenadier bycatch at any time and regardless of whether grenadiers are classified as “stocks in the fishery” or in the EC category. PSC limits are used to limit the total amount of incidental catch of BSAI crab, Chinook salmon, halibut, and herring in the groundfish fisheries. BSAI crab, Chinook salmon, halibut, and herring are in the EC category under the BSAI FMP and GOA FMP. PSC limits have been established for these species because they are economically and culturally valuable species that are harvested in other directed fisheries besides the groundfish fishery. PSC limits ensure that catch in the groundfish fisheries do not limit harvest opportunities in other fisheries, or risk conditions that could result in total catch exceeding established limits. These conditions do not apply to grenadiers. Grenadiers are not harvested in any directed fishery, and total catch is well below the estimated OFLs and ABCs, as noted earlier in this preamble. Amendments 100/91 and this final rule implement measures appropriate to limit the impact of groundfish fisheries on grenadiers and collect the fishery data necessary for the Council to assess whether additional measures to minimize bycatch are warranted.

Comment 2: The Council and NMFS have not demonstrated and cannot demonstrate that the requisite factors for EC classification of grenadiers have been met.

Response: Grenadiers meet the National Standard 1 guidelines factors that should be considered for EC classification (§ 600.310(d)(5)). This preamble, the preamble to the proposed rule (79 FR 27557, May 14, 2014), and Section 2 of the Analysis describe how grenadiers meet the specific criteria for EC classification in the National Standard 1 guidelines.

In summary, even though there are no restrictions on the catch of grenadiers now, grenadiers are not a targeted species group and are not generally retained for sale. No current market exists for grenadiers, and it is unlikely that one will be developed in the foreseeable future. Grenadiers are not generally retained for personal use, although a small portion of the total catch of grenadiers is known to be retained for use as bait in hook-and-line fisheries. The best available information indicates that grenadiers are not subject to overfishing, overfished, or approaching an overfished condition, and are not likely to become subject to overfishing or overfished in the absence of conservation and management measures. See response to Comment 4 for a more detailed response to the concern that grenadiers may be overfished. See response to Comment 5 for a more detailed response to the concern that grenadiers are experiencing overfishing.

Comment 3: The Council did not heed expert advice when deciding not to include grenadiers as “stocks in the fishery.” The grenadier stock assessment authors, the Council's Scientific and Statistical Committee (SSC), the BSAI and GOA Groundfish Plan Teams, and members of the public made clear and repeated appeals that the grenadier stocks in Alaska require conservation and management. Managing grenadiers as “stocks in the fishery” is consistent with those requests.

Response: The Council and NMFS considered the recommendations in the grenadier stock assessment, and from the BSAI and GOA Groundfish Plan Teams, the SSC, and the public in developing Amendments 100/91 and this final rule. These recommendations are summarized below.

The 2012 stock assessment (see ADDRESSES) recommended that grenadiers be categorized as “stocks in the fishery” because (1) giant grenadier are taken in large amounts as bycatch in commercial fisheries; (2) the potential exists for the future development of a targeted fishery on giant grenadier; and (3) they are slow growing and late to mature and therefore vulnerable to overfishing. The 2012 stock assessment also explains that an EC classification for grenadiers in the BSAI may be acceptable from a biological and management standpoint because giant grenadiers are very abundant in this area and catches have been relatively small relative to biomass, OFL, and ABC limits calculated in the stock assessment. Thus, the 2012 stock assessment concluded that overfishing of grenadiers in the BSAI is unlikely in the foreseeable future. The 2012 stock assessment also notes that catches could increase without endangering the stocks, and the recommended OFLs and ABCs appear to be sufficiently conservative to protect the stocks.

The Council addressed the management concerns expressed in the 2012 stock assessment in recommending Amendments 100/91 and this final rule. Importantly, the Council and NMFS recognize that the potential exists for the future development of a targeted fishery on grenadiers. Therefore, the Council recommended, and this final rule implements, a prohibition of directed fishing to prevent a target fishery on grenadiers. Prohibiting directed fishing on grenadiers also prevents overfishing because, under status quo, a directed fishery could occur at any time without any catch limits. The Council also addressed the analysis of grenadiers' vulnerability to overfishing. As shown in the 2012 stock assessment, the amount of grenadier bycatch was far below the estimated OFL. Overfishing could only occur if catch increased dramatically with a directed fishery. The final rule's prohibition on a directed fishery addresses the potential vulnerability of grenadiers to overfishing.

Further, the 2012 stock assessment identifies problems with leaving grenadiers as a nonspecified species. The 2012 stock assessment notes that under current management “. . . there are no limitations on catch or retention, no reporting requirements, and no official tracking of grenadier catch by management.” This final rule limits grenadier catch and limits grenadier retention, implements reporting requirements for grenadiers, and officially tracks grenadier catch by requiring the reporting of grenadier catch and the use of any retained grenadiers.

In September 2013, NMFS staff presented a summary of a preliminary analysis to include grenadiers in the groundfish FMPs to the BSAI and GOA Groundfish Plan Teams. The BSAI and GOA Groundfish Plan Teams discussed whether any action is needed because grenadiers appear to lack any conservation concerns presently and there is no directed fishery or market for grenadiers. Minutes from the BSAI and GOA Groundfish Plan Teams are available on the Council's Web site at http://www.npfmc.org/wp-content/PDFdocuments/membership/PlanTeam/Groundfish/JOINT913minutes.pdf.

Amendments 100/91 and this final rule are consistent with the BSAI Groundfish Plan Team's recommendation. The BSAI Groundfish Plan Team recommended that the Council consider adding grenadiers to the EC category under the BSAI FMP. The BSAI Groundfish Team's recommendation was based on the lack of a clear justification for inclusion as a “stock in the fishery” (and subsequent inclusion under the 2 million mt optimal yield cap) given the economic costs to the BSAI groundfish fisheries (and the Nation) of foregone harvests in other, more valuable fisheries. The BSAI Groundfish Plan Team acknowledged that including grenadiers in the EC category and requiring the reporting of catch would be one way to improve data on retained catch and enhance fishery monitoring

The GOA Groundfish Plan Team did recommend that the Council consider adding grenadiers to the GOA FMP as “stocks in the fishery.” The GOA Groundfish Plan Team's recommendation was based on the lack of required catch accounting and monitoring of the GOA grenadier catch under the status quo and lack of economic costs to the GOA groundfish fisheries by including grenadiers as “stocks in the fishery.” The GOA Groundfish Plan Team concluded that management as “stocks in the fishery” would allow grenadiers to be targeted if a market develops without the need for a further FMP amendment. Note that the lack of a potential economic cost to include grenadiers as “stocks in the fishery” in the FMP is not one of the factors that the Council or NMFS uses to determine if a stock requires conservation and management.

Catch information on grenadiers is currently collected under the North Pacific Groundfish and Halibut Observer Program. This final rule would improve the data collection on grenadiers by requiring the reporting of grenadier catch from vessels that are not observed and requiring the reporting on the use of any retained grenadiers (e.g., retained as bait, or used as fish meal). Section 3.4.1 of the Analysis provides more detail on grenadier catch estimation.

Amendments 100/91 and this final rule establish more precautionary management in the GOA than would result from the GOA Groundfish Plan Team's recommendation to manage grenadiers as “stocks in the fishery” in the GOA because this final rule prohibits directed fishing and the Council would need to amend the FMP before grenadiers could be targeted in a commercial fishery. If grenadiers were managed as “stocks in the fishery,” a directed fishery could occur, and total catch could be greater than that possible under this final rule. NMFS notes that grenadiers would need to be managed as “stocks in the fishery” if they were generally retained for sale. However, there is no indication that a market for grenadiers exists now, or will develop in the foreseeable future. Therefore, managing grenadiers in the GOA as “stocks in the fishery” is not required at this time (see Section 3.4.4 of the Analysis for additional detail).

In December 2013, the SSC reviewed the Analysis and made many recommendations that analysts addressed before Council final action in February 2014. The SSC did not recommend that grenadiers in either the BSAI or GOA be managed as “stocks in the fishery.” Amendment 100/91 and this final rule are consistent with the SSC's expert advice. The SSC recommended that grenadiers not be added to the forage fish category because the life history of grenadiers (long life span, late maturation, slow growth rate) and their trophic position in the food web are not similar to species included in the forage fish category. Amendment 100/91 and this final rule do not add grenadiers to the forage fish category. The SSC minutes are available on the Council's Web site at http://www.npfmc.org/meeting-minutes/.

Comment 4: NMFS cannot justify a conclusion, based on existing data, that grenadiers are not overfished or approaching an overfished condition. In the North Pacific groundfish fishery, overfished status for a specific stock is determined using that stock's minimum stock size threshold (MSST), which is defined as the level of biomass below which the stock or stock complex is considered to be overfished. In the Analysis, NMFS stated that it cannot establish an MSST for grenadiers, a Tier 5 stock. Without an estimate of MSST or reliable proxy measurement, it is impossible for NMFS to state with any confidence that the grenadier stock is not overfished or approaching an overfished status. Nonetheless, NMFS makes this claim and uses the claim to support the EC classification for grenadiers. Because this determination is not supported by sufficient data, this required factor for EC classification is not met.

Response: National Standard 1 guidelines for status determination criteria, such as MSST, only apply to “stocks in the fishery.” Therefore, NMFS is not required to set an MSST for grenadiers as EC stocks. While NMFS does not have the information to define MSST for grenadiers, the conclusion that the stock is not overfished or approaching an overfished condition is supported by the available information.

The Analysis uses the best available information to assess whether grenadiers are overfished or approaching an overfished condition. A stock is overfished when it is at low abundance. NMFS has abundance estimates for grenadiers using trawl survey data beginning in 1979 for the BSAI and beginning in 1984 for the GOA. NMFS also has abundance estimates from longline survey data beginning in 1996/1997 for the BSAI and beginning in 1992 for the GOA. Abundance estimates for grenadier are available in the 2014 stock assessment (see ADDRESSES). No evidence indicates that grenadiers in the BSAI or GOA are currently at low abundance compared to previous abundance estimates. In fact, in the BSAI, grenadier abundance estimates for 2015 are above the mean abundance estimated for the time series using the trawl and longline survey data. In the GOA, abundance estimates for 2015 are slightly below the mean abundance estimated for the time series.

The SSC evaluates the amount of information available on each groundfish stock and assigns each stock to one of six fishery stock assessment tiers based on the quantity and quality of information available. Fisheries in the higher ranking tiers (e.g., Tiers 1, 2, and 3) have more reliable and more complete information. Stocks with less reliable and less complete information are assigned to lower ranking tiers (e.g., Tiers 4 and 5), and stocks with only catch estimates are assigned to lowest ranking tier (Tier 6). Additional detail on the stock assessment process is provided in the annual Stock Assessment and Fishery Evaluation Reports prepared for the BSAI and GOA groundfish fisheries, available at: http://www.afsc.noaa.gov/refm/stocks/assessments.htm.

The 2014 stock assessment suggests placing grenadiers in Tier 5 based on the information available (see ADDRESSES). According to the FMPs, for Tiers 4 through 6, neither direct estimates of BMSY (biomass level necessary to support the maximum sustainable yield) nor reliable estimates of BMSY proxies are available. A reliable estimate of BMSY or a reliable estimate of a BMSY proxy is required in order to determine the MSST for a stock. Therefore, the MSST of stocks and stock complexes managed under Tiers 4 through 6 is undefined. Under the FMPs, 23 “stocks in the fishery” are also in Tiers 4 through 6. Classifying grenadiers as “stocks in the fishery” would not change the fact that neither direct estimates of BMSY nor reliable estimates of BMSY proxies are available and MSST would remain undefined.

Comment 5: Conservation and management measures are required to prevent overfishing of grenadiers. Grenadier stocks are especially vulnerable to deleterious fishing effects due to their longevity and slow rate of reproduction. NMFS' determination that grenadiers are not currently subject to overfishing is unsupported by reliable information or data. The Council evaluates whether a stock in the groundfish fishery is subject to overfishing by evaluating whether catch exceeds the OFL.

Grenadiers are a Tier 5 stock due to the lack of biological information. For Tier 5 stocks, the Council's SSC sets OFL using estimates of the current biomass based on the average of the last three trawl surveys conducted. A Center for Independent Experts (CIE) review evaluated the methods for assessing Tier 5 stocks and concluded that current methods of implementing a Tier 5 assessment for non-target species are poor (Cieri, M., et al., 2013 CIE Review of Non-Target Species Stock Assessments in the BSAI and GOA). This conclusion is based in large part on the use of trawl survey biomass to estimate absolute abundance: These surveys may not cover the entire distribution of a stock, and reviewers were particularly concerned with the extrapolation of trawl survey densities to untrawlable ground. With regard to grenadiers specifically, one reviewer stated that the grenadier biomass estimates are unreliable, as they assume that trawl-survey biomass indices are absolute biomass estimates (and the Aleutian Islands estimates are based on an unreliable extrapolation). Another reviewer found it was not realistic to estimate absolute biomass for grenadiers with reasonable accuracy.

Because the current biomass estimates for grenadiers are not defensible, any OFL calculated based on these estimates is similarly unreliable. As a result, NMFS' determination that grenadiers are not subject to overfishing is not grounded in reliable information, and the agency's use of this determination to support the EC classification is inappropriate.

Response: NMFS' conclusion that overfishing of grenadiers is not occurring is supported by the best scientific information available, as explained in Section 3.3 of the Analysis. NMFS has been conducting a stock assessment for grenadiers since 2006. At present, stock assessment information for giant grenadier is relatively good compared to many other non-target species in Federal waters off Alaska. Since 2010, the stock assessment has been used to estimate an ABC and an OFL, using the best available estimates of biomass and natural mortality. The stock assessment uses giant grenadier as a proxy for the other grenadier species, and the estimated ABC and estimated OFL are based on giant grenadier because relatively few other grenadier species are caught in the groundfish fisheries or are taken in NMFS surveys. NMFS estimates the incidental catch of grenadiers in the groundfish fisheries using observer data.

Total catch of grenadiers is far below the estimated grenadier OFL in both the BSAI and the GOA and NMFS is confident that grenadiers are not subject to overfishing. Overfishing occurs when catch exceeds the OFL.

According to the 2014 stock assessment (see ADDRESSES), NMFS estimates that the BSAI grenadier OFL is 100,365 mt (211 million lb.) and grenadier catch is 5,320 mt (11.7 million lb., mean catch for 2003 through 2013). Estimated catch of grenadiers in the BSAI represents approximately 5 percent of the estimated OFL.

According to the 2014 stock assessment (see ADDRESSES), NMFS estimates that the GOA grenadier OFL is 40,921 mt (90 million lb.) and grenadier catch is 8,769 mt (19 million lb., mean catch for 2003 through 2013). Estimated catch of grenadiers in the GOA represents approximately 21 percent of the estimated OFL.

The issues raised by the CIE review and noted by the comment are applicable to all Tier 5 stocks and are being addressed by stock assessment authors through the annual BSAI and GOA Groundfish Plan Teams and the annual groundfish harvest specifications process. While NMFS and the Council continually work to improve the quality of the stock assessments, NMFS and the Council use the best scientific available information to assess the status of stocks. Under the FMPs, 14 stocks are in Tier 5 and 9 stocks are in Tier 6 (Tier 6 is for stocks with less biological information than Tier 5). These Tier 5 and Tier 6 stocks are all “stocks in the fishery,” and the SSC uses the Tier 5 and Tier 6 stock assessment information to set OFLs and ABCs for these stocks. If grenadiers were placed as “stocks in the fishery,” the Tier 5 stock assessment would continue to be used to set a grenadier OFL until a Tier 4 stock assessment is approved by the SSC.

The problems with estimating grenadier biomass cited in the comment indicate that the stock assessments for Tier 5 stocks could either overestimate the OFL or underestimate the OFL. The CIE review also concluded that NMFS was overly precautionary in determining model parameters in the face of uncertainty for all Tier 5 stocks. In other words, NMFS' estimates of model parameters are more conservative than necessary based on available data and likely result in an underestimate of abundance.

Comment 6: NMFS stated in the notice of availability that grenadiers are not likely to become subject to overfishing or overfished in the absence of conservation and management. The Analysis, however, indicates that NMFS never evaluated the likelihood of grenadiers to be overfished or subject to overfishing but, instead, reserved that analysis for future studies. NMFS likely cannot justify a conclusion that grenadiers are not likely to become subject to overfishing or overfished in the absence of conservation and management. Various life history characteristics of grenadiers make the stock particularly vulnerable to existing fisheries. If conservation and management measures are not taken to reduce fishing pressure on grenadiers, it is likely the species will become overfished or subject to overfishing.

Response: The best available scientific information does not suggest that grenadier catch levels are likely to cause grenadiers to become overfished or subject to overfishing. Section 3.5 of the Analysis uses the best available information to analyze whether grenadiers are likely to become subject to overfishing or overfished, in the absence of conservation and management measures.

The comment seems to refer to a footnote in Section 2.2 of the Analysis that addressed a comment made by the SSC that requested analysts to better explain the term “likely” with respect to the future potential for an EC species to be found subject to overfishing or overfished. A more complete discussion of the SSC's comment and changes made to the Analysis to address the comment are in Section 2.4 of the Analysis. Section 2.4 of the Analysis explains that, in the future, the Council can assess whether to re-classify grenadiers and manage them as “stocks in the fishery.” The National Standard 1 guidelines explain that a fishery management council should monitor the catch on a regular basis to determine if the stock is appropriately classified in the FMP (50 CFR 600.310(d)(6)). This final rule implements the reporting requirements necessary to monitor the catch and retention of grenadiers. Section 2.4 of the Analysis explains that future analyses could compare the trend of grenadier catch with trends in biomass estimates to determine whether grenadier catch is increasing relative to biomass in a way that suggests that catch may be exceeding the OFL estimate. If overfishing appeared “likely,” based on these trends, then this criterion for listing grenadiers as an EC species in the FMPs may no longer be met and reclassification may be appropriate.

Comment 7: Stock assessment scientists from the Alaska Fisheries Science Center have analyzed the potential vulnerability of Alaska grenadiers to overfishing. The vulnerability scores for grenadiers based on productivity and susceptibility to fishery impacts are similar to species that are currently managed in the fishery, such as Pacific cod and pollock. As a result, the scientists recommended that grenadiers be included as a “stock in the fishery.”

A more recent study found that grenadiers were susceptible to fishery impacts and may be even more vulnerable than previous results indicate. For example, if a species is not targeted by the fishery but taken as bycatch, the relevant susceptibility attribute is ranked lightly exploited. This ranking is obviously inappropriate for species like grenadiers that are not targeted but experience high bycatch and nearly 100 percent bycatch mortality. These analyses illustrate the potential of grenadiers to become overfished if current fishing practices continue.

Response: Potential vulnerability to overfishing and scientific uncertainty is the primary reason the Council and NMFS considered adding grenadiers to the FMPs. Amendments 100/91 and this final rule include grenadiers in Federal groundfish management and provide management measures necessary to ameliorate the potential vulnerability of grenadiers to overfishing. The recordkeeping and reporting requirements established by this final rule will improve data collection on grenadiers. The prohibition on directed fishing and the MRA for grenadiers as an incidental catch species in this final rule will limit grenadier catch. Grenadiers will be less susceptible to overfishing because incidental catch will be restricted and directed catch will be prohibited. These measures are in sharp contrast to the status quo conditions that do not preclude a directed fishery and do not limit the amount of allowable retained incidental catch. In addition, this final rule will improve catch estimation by requiring the reporting of grenadier catch that is retained. This information can aid managers in determining whether grenadiers are being retained and if a market is being developed. The regulations implemented by this final rule will help improve information about grenadier harvests and prevent unmanaged directed fisheries for grenadiers.

The vulnerability analysis cited in this comment was prepared by NMFS in 2009 for a number of Alaska stocks and stock complexes, including giant grenadier, and presented the results in Appendix 3 to the 2009 SAFE report (available at http://www.afsc.noaa.gov/refm/stocks/2009_assessments.htm). The vulnerability analysis does not indicate the potential of grenadiers to become overfished if current fishing practices continue. The vulnerability analysis compares two main features of a stock that influence its vulnerability to fishing: Productivity, which determines a population's natural capacity for growth and its resilience to fishery impacts; and susceptibility, which indicates how severe those fishery impacts are likely to be for the population. This analysis does not look at whether overfishing is occurring or likely to occur given the current harvest amounts relative to estimated biomass. When total catch of grenadiers is compared to total biomass, the estimated OFL, or the estimated ABC, it is clear that grenadiers are not currently subject to catch rates that require conservation and management.

Nevertheless, with this action, the Council and NMFS have adopted a precautionary approach to management. The potential vulnerability to overfishing if an unregulated fishery for grenadiers develops was one of the reasons the Council recommended, and this final rule implements, a prohibition on directed fishing. A prohibition on directed fishing is designed to prevent unregulated harvest from increasing to the point that could result in overfishing.

NMFS notes that the primary recommendation in the second study cited by the comment was to monitor and report bycatch and discard amounts because knowledge of bycatch and discard is essential for understanding the nature of the fishery impacts on grenadiers and for assessing populations in the future. This final rule meets the objective of that recommendation.

Comment 8: Regular stock assessments for grenadiers are necessary and required in order to determine whether overfishing is occurring or the stock is overfished. The proposed rule provides no assurance that NMFS will assess the status of the grenadier stock to determine whether overfishing is occurring on the stock or whether the stock is overfished. While the Council recommendation provided encouragement to conduct informal stock assessments, there is nothing compelling NMFS to do so. NMFS' lack of investment in the data that would help define key stock assessment parameters relegates grenadiers to a Tier 5 stock. There appears to be little incentive for NMFS to improve stock assessments for grenadiers, or for that matter, any Tier 5 stocks in the FMPs. The proposed rule must also include a requirement and a timeline with which to regularly assess the risk of overfishing and overfished status of the grenadier stock.

Response: The National Standard 1 guidelines explain that a fishery management council should monitor catch on a regular basis to determine if a stock is appropriately classified in the FMP (50 CFR 600.310(d)(6)). Section 2.2 of the Analysis explains that NMFS and the Council will monitor grenadiers as new, pertinent scientific information becomes available. If information indicates that grenadiers should be reclassified, an FMP amendment would be required to move grenadiers to “stocks in the fishery.”

The Council and NMFS do not prioritize stock assessment work through regulations. This final rule implements regulations for participants in the groundfish fisheries. The Council and NMFS are continually assessing the data and scientific methods used for stock assessment. The SSC places stocks in tiers based on the best available scientific information using the tier system in Section 3.2.3.2 of the FMPs. Twenty three “stocks in the fishery” are in Tier 5 in the FMPs. Classifying grenadiers as “stocks in the fishery” would not move the stocks out of Tier 5.

Comment 9: A failure to classify grenadiers as “stocks in the fishery” would be contrary to obligations under the United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (the Agreement). Inclusion of grenadiers as “stocks in the fishery” is necessary to ensure the long-term sustainability of grenadiers in the North Pacific, to maintain and restore the deep-sea ecosystem, to preserve future potential uses for those deep-sea resources, and to minimize waste from bycatch. Further, because of the important ecological role of grenadiers in the deep-sea ecosystem, conservation and management measures must be put in place to protect biodiversity in the marine environment. The EC classification is contrary to the precautionary approach required in the Agreement. NMFS must be more cautious with regard to management because there is so little reliable information regarding the status of grenadier stocks. Using the precautionary approach would mean implementing measures that could effectively conserve and maintain grenadier populations to ensure long-term sustainability.

Response: Classifying grenadiers as “stocks in the fishery” is not more precautionary than classifying grenadiers in the EC category. “Stocks in the fishery” are target stocks subject to directed fisheries that can harvest up to the total allowable catch (TAC) established for that stock. For stocks in the EC category, NMFS prohibits directed fishing. Prohibiting directed fishing is more precautionary than establishing a TAC and allowing directed fishing. Therefore, Amendments 100/91 and this final rule are necessary to ensure the long-term sustainability of grenadiers in the North Pacific.

Classifying grenadiers as “stocks in the fishery,” as suggested in the comment, would not, on its own, ensure the long-term sustainability of grenadiers in the North Pacific, maintain or restore the deep-sea ecosystem, preserve future potential uses for those deep-sea resources, or minimize waste from bycatch. Any specific management measures to address these concerns would be measures for the groundfish fisheries to reduce their impacts on grenadiers. The comment did not provide any specific measures that would be more precautionary than those implemented in this final rule.

Additionally, the Council and NMFS considered grenadier's role in the ecosystem. Section 3.7 of the Analysis describes the current state of research and understanding about the ecological importance of grenadiers. For example, giant grenadiers have an important ecological role as apex predators. Apex predators reside at the top of their food chain and have few to no predators of their own. In bottom trawl surveys conducted by NMFS in the Bering Sea and the GOA, giant grenadiers are the most abundant fish, in terms of weight, in depths from 600 to 3,000 feet (183 to 914 meters). Giant grenadiers extend much deeper than 3,000 feet (914 meters). While grenadiers have been caught deeper than 6,000 feet (1,829 meters), little is known about their abundance in waters deeper than 3,000 feet, because neither the NMFS surveys nor fishing effort presently extend below this depth. However, the best scientific information available clearly indicates that catch of grenadiers represents only a small portion of the total estimated biomass, and a small proportion of the estimated ABCs and OFLs.

Comment 10: While there is not currently a target market for grenadiers in the North Pacific, it is quite possible such a market could develop in the future. Grenadier meat is high in protein and lipids, which makes it desirable as a potential dietetic food. Further, grenadier livers have a large relative weight and contain many vitamins and fat, and their eggs are large, with a bright orange color and good gustatory quality. As a result of these qualities and the high amounts of grenadier catch, research to develop marketable products from this species is ongoing, and it is likely Alaskan fishermen will continue their efforts at utilizing this species. If a target market were to develop for grenadiers, the problems associated with overfishing would be greatly exacerbated.

Response: NMFS agrees that a market for grenadiers in the North Pacific could develop in the future. Concern over the potential for an unregulated fishery for grenadiers was one of the main reasons the Council recommended and NMFS is implementing Amendments 100/91 and this final rule as a precautionary management measure. With this action, NMFS is prohibiting directed fishing for grenadiers and limiting the amount of grenadiers that can be retained as incidental catch in groundfish fisheries through implementation of an 8 percent MRA. Additionally, the recordkeeping and reporting requirements implemented with this final rule will provide the data necessary to determine if fishermen retain grenadiers for bait or processing for sale. Without this action, there would be no constraints on any potential future grenadier fishery.

Comment 11: NMFS and the Council set PSC limits in the groundfish fishery for other species in the EC category, such as Chinook salmon and Pacific herring. At a minimum, the proposed rule must establish substantive measures, like PSC limits, that will minimize the current levels of grenadier bycatch occurring in the groundfish fishery.

Response: Under the GOA FMP and BSAI FMP, PSC limits are a management tool for species in the EC category. PSC limits are not set for stocks classified as “stocks in the fishery” in the FMP. See response to Comment 1 for more detail on PSC limits.

Additionally, the comment requests NMFS add new regulations that have not been analyzed or recommended by the Council. NMFS cannot add regulations to a final rule that will have substantive impacts on fisheries without following National Environmental Policy Act, Executive Order 12866, the Regulatory Flexibility Act, and the Administrative Procedure Act. Nothing in the final rule conflicts with or precludes development and analysis of additional regulations in a subsequent future action. The increased recordkeeping and reporting requirements in this final rule will provide more information to decision makers on grenadier bycatch. If additional information indicates that additional management measures would be appropriate, the Council would assess PSC limits or other appropriate management measures.

Comment 12: Amendments 100/91 and the proposed rule will do nothing to limit fishery impacts because they do not address or reduce the current bycatch levels to the extent practicable. Prohibiting directed fishing of a species for which, at present, there is no directed fishery in the waters off Alaska does nothing to address the current source of mortality, which is bycatch. Limiting the amount of grenadiers that may be retained after they are caught has no effect on bycatch, especially when the MRA exceeds the current rate of retention. In fact, the MRA under the proposed rule is set at 8 percent, which will allow groundfish fisheries to retain up to 440 million pounds of grenadier, an order of magnitude more than current annual bycatch levels of 34 million pounds.

Response: Amendments 100/91 and this final rule are necessary to limit the impacts of the groundfish fisheries on grenadiers. Amendment 100/91 and this final rule accomplish the purpose and need for this action and additional measures are not necessary at this time to meet the purpose and need. The purpose and need for Amendment 100/91 and this final rule are as follows:

Currently, there are no restrictions on how many grenadiers can be retained in the groundfish fisheries. This final rule prohibits directed fishing to limit grenadier catch and implements an MRA of 8 percent for groundfish fishing vessels to constrain incidental harvests. NMFS has no indication that grenadier retention through incidental harvests is likely to increase beyond current levels, given the lack of any market for grenadiers, and therefore no economic incentive to retain grenadiers.

NMFS disagrees with the comment's assertion that up to 440 million pounds of grenadiers could be retained under this final rule. It appears that the comment calculated that up to 440 million pounds of grenadiers could be retained by summing the TACs of all groundfish species in the BSAI and GOA and multiplying that amount by 8 percent. This is inaccurate for several reasons. First, grenadiers are not caught in all groundfish fisheries. Grenadiers occur in deep water and are not encountered in many fisheries. In the GOA, grenadiers are primarily caught in the deep-water trawl (i.e., arrowtooth flounder and rex sole trawl fisheries) and some hook-and-line groundfish fisheries (i.e., sablefish). In the Aleutian Islands, grenadiers are primarily caught in the sablefish fishery. In the Bering Sea, grenadiers are primarily caught in the Greenland turbot fishery. Calculating 8 percent of the total BSAI and GOA groundfish TACs and assuming that all vessels in all fisheries will harvest up to that amount of grenadiers is not realistic. See Sections 3.4.2 and 3.4.3 of the Analysis for a complete discussion of the bycatch of grenadiers in the different groundfish fisheries (see ADDRESSES).

Second, MRAs apply at the vessel and fishing trip level. The 8 percent MRA allows a vessel operator fishing for groundfish to retain a quantity of grenadiers equal to but no more than 8 percent of the round weight or round weight equivalent of groundfish species open to directed fishing that are retained on board the vessel during a fishing trip. The requirement to not exceed MRA proportions at any time during a fishing trip limits the vessel operator's ability to maximize catch of grenadiers. The estimate provided in the comment assumes that all vessels, on each fishing trip, catch grenadiers and will retain up to the maximum amount of grenadier catch. For the reasons described, this will not occur.

The Council considered a MRA range of 2 percent to 20 percent, ultimately choosing an 8 percent grenadier MRA. The 8 percent MRA is not likely to substantially increase the incentive for vessels to retain grenadiers relative to a lower MRA percentage (e.g., 2 percent), but would limit the amount of incidental catch more conservatively than a higher MRA percentage (e.g., 20 percent). The Council selected an 8 percent MRA to accommodate the current amount of grenadiers incidentally caught by individual vessels. Section 2.2 of the Analysis notes that a de minimus amount of grenadiers are retained in the BSAI, and only 0.1 percent of all groundfish fishing trips in the GOA would be expected to meet or exceed an MRA of 8 percent. Retention of grenadiers in the BSAI is less than 0.1 percent of all groundfish fishing trips. Therefore, an MRA of 8 percent would be expected to accommodate all current fishing practices and, if a market should develop, this MRA would limit the potential retention of grenadiers until the Council and NMFS could develop measures to manage a grenadier fishery.

Finally, it is highly unlikely that vessels would catch the maximum MRA on more than 0.1 percent of all groundfish fishing trips. It is not economical for vessel operators to do so because it would take valuable time and effort for vessels to find grenadiers to “top off” their catch.

This final rule also increases monitoring of grenadier catch, and NMFS will add grenadiers to weekly catch reports posted on the NMFS Alaska Region Web page at http://alaskafisheries.noaa.gov/sustainablefisheries/catchstats.htm. This information will provide the Council, NMFS, and the public the information needed to determine if increased retention of grenadiers is occurring. The Council and NMFS will review this information and consider additional management measures, if appropriate.

Comment 13: Including grenadiers as “stocks in the fishery” would necessitate the establishment of an OFL, ABC, and TAC each year in the annual harvest specifications process. If a grenadier TAC was set below the current bycatch level, bycatch would be reduced. The grenadier TAC would count in the calculation of total TAC under the optimum yield (OY) cap.

The OY cap is a binding constraint on the BSAI groundfish fisheries that limits the total TACs of all groundfish fisheries in the BSAI managed as “stocks in the fishery” to no more than 2 million mt. In most years, the total TACs of all groundfish fisheries in the BSAI sum to 2 million mt. This means that the Council and NMFS would need to “fund” a grenadier TAC in the BSAI by reducing the TAC in one or more BSAI groundfish fisheries so that the 2 million mt limit is not exceeded. The potential reduction of a TAC for one or more BSAI groundfish fisheries will incentivize reduction of grenadier bycatch in the BSAI so that the grenadier TAC can be set as low as possible and not limit the TACs set for other fisheries.

Response: NMFS agrees that the BSAI OY cap requires that the sum of the groundfish TACs in the BSAI cannot exceed 2 million mt (see 50 CFR 679.20(a)(1)). The response to Comment 2 explains that the Council and NMFS determined that grenadiers meet the criteria for the EC category, and assigning grenadiers to the EC category would preclude the development of a directed fishery that could increase catch of grenadiers. The comment's suggested approach would be less conservative and could result in an increase in grenadier catch in a directed fishery with a TAC.

The comment seems to suggest that, in the BSAI, grenadiers should be classified as “stocks in the fishery” so that a grenadier TAC would be set at a level below the current grenadier catch as a way to constrain bycatch. This is inconsistent with the management of fisheries classified as “stocks in the fishery” and the TAC setting process for Tier 5 stocks. According to the BSAI FMP, a specific TAC is established annually for each target species or species assemblage. The FMP defines target species as those species that support either a single species or mixed species target fishery, are commercially important, and for which a sufficient data base exists that allows each to be managed on its own biological merits. Grenadiers are not a target fishery. As a Tier 5 stock, the grenadier TAC would be set following the harvest specifications process, and, given the stock's ABC, the TAC could be set much higher than current bycatch. Managing grenadiers as “stocks in the fishery” and establishing a TAC for grenadiers would provide for a directed fishery. As long as the TAC has not been, or is not likely to be exceeded, NMFS would not constrain catch of grenadiers whether retained or discarded. This would not result in a reduction of grenadier catch as suggested in the comment.

NMFS disagrees with the comment's assumption that managing grenadiers as “stocks in the fishery” will “force” harvesters to minimize their catch of grenadiers so that a lower TAC for grenadiers may be established and provide more TAC for non-grenadier species within the 2 million mt OY cap. As stated in response to Comment 12, grenadiers are not encountered in many fisheries and are encountered in very limited amounts in some fisheries (e.g., Bering Sea pollock). Therefore, NMFS expects that limiting the TAC of most groundfish fisheries would not result in a reduction of grenadier catch or in the amount of grenadier catch that is discarded because there is no market. NMFS expects that constraining the TAC of other groundfish fisheries would not minimize grenadier bycatch to the extent practicable as required by the Magnuson-Stevens Act.

Comment 14: The Council's decision to classify grenadiers as an EC species appears to be motivated by a desire to avoid consequences for existing fisheries subject to the 2 million mt OY cap in the BSAI. Originally, the effort to evaluate grenadier stocks was motivated by a desire to address conservation concerns in the grenadier fishery. Beginning in 2008, the BSAI and GOA Groundfish Plan Teams and the SSC strongly encouraged the Council to manage grenadiers as “stocks in the fishery,” stressing the issue should be a priority, based largely on concerns over bycatch and vulnerability of the species. Initial preliminary assessments prepared by NMFS also emphasized the conservation and management concerns associated with grenadier stocks. However, after analyzing the potential consequences to the existing groundfish fisheries, the Council deemphasized conservation concerns, and instead focused on classifying grenadiers as an EC species. This conclusion is unlawful. National Standards 1 and 9 require that necessary and practicable bycatch measures must be implemented, even if that results in a downward adjustment of OY.

When read together, National Standards 1 and 9 in the Magnuson-Stevens Act require that necessary and practicable bycatch measures must be implemented, even if that results in a downward adjustment of OY. As spelled out in the Magnuson-Stevens Act, yield is optimal when it takes into account protection of marine ecosystems and any relevant ecological factor. These same considerations require reducing grenadier bycatch because they have an important ecological role.

Response: NMFS disagrees with the comment for the following reasons. First, there is no grenadier fishery. As noted in the preamble to this rule, markets for grenadiers have not developed and the available data do not indicate significant retention of grenadiers for personal use as bait.

Second, comments made prior to 2009 did not consider the amendments to the Magnuson-Stevens Act establishing ACLs and AMs, or the National Standard 1 guidelines establishing the EC category published in 2009 (74 FR 3178, January 16, 2009). See the response to Comment 3 for a summary of the recommendations of the Groundfish Plan Teams and SSC for Amendments 100/91.

Third, in 2010, the Council recommended and NMFS removed the nonspecified species category from the FMPs when the FMPs were revised to meet Magnuson-Stevens Act requirements for ACLs and AMs under Amendments 96/87 to the FMPs (75 FR 61639, October 6, 2010). The nonspecified species, including grenadiers, were removed from the FMPs because these species were too poorly understood to set ACLs and AMs or to develop a management regime. The Council also initiated an analysis to consider moving grenadiers back into the FMPs in 2010. In June 2012, the Council reviewed the first discussion paper that explored two alternatives for grenadiers, classifying them either as “stocks in the fishery” or as an “ecosystem component.” That discussion paper also identified the primary concerns that apply to grenadiers; grenadiers have no limits on their catch or retention, no reporting requirements, and no official record of their catch. These concerns were reiterated when the Analysis was revised and improved between 2012 and February 2014 when the Council took final action. The Analysis analyzes potential economic impacts to fishery participants in compliance with Executive Order 12866 and the Regulatory Flexibility Act.

Fourth, when the Council recommended Amendments 100/91, the Council emphasized conservation concerns in classifying grenadiers as an EC species. Amendments 100/91 and this final rule directly address concerns of groundfish fishery impacts on grenadiers. Amendments 100/91 and this final rule limit grenadier catch and retention and require reporting for an official record of grenadier catch.

Fifth, NMFS considered the potential vulnerability of grenadiers from the groundfish fisheries as it developed this action as described in response to Comment 7.

Finally, Amendments 100/91 and this final rule comply with the Magnuson-Stevens Act, including the 10 National Standards. The Council and NMFS considered the best available information on the total biomass of grenadiers as well as the total catch of grenadiers. As described in this preamble and the Analysis, total catch of grenadiers represents only a small proportion of the estimated biomass of grenadiers, OFLs, and ABCs in the BSAI and GOA. This final rule prohibits the directed fishing for grenadiers and improves the monitoring of grenadier catch to ensure that total catch of grenadiers will not adversely affect grenadiers. Additional measures to limit the total catch of grenadiers are not required at this time to comply with the requirements of National Standard 1 or National Standard 9.

Comment 15: Conservation and management measures are needed in order to maintain the grenadier stock and the deep-sea environment. Grenadier bycatch threatens to cause irreversible or long-term adverse effects both on grenadier resources and the marine ecosystem. The environmental effects of this bycatch may change the ocean environment in ways that would decrease the options available with respect to future uses of deep-sea or other marine resources. Thus, grenadier stocks are in need of conservation and management and should be managed in the fishery, as required by the Magnuson-Stevens Act. Grenadier bycatch constitutes a major input of dead organic material to the ecosystem that would not otherwise be there and could have unintended consequences for the environment.

Response: As stated in previous responses to comments, including grenadiers as “stocks in the fishery” would not be expected to result in less catch than the amount currently occurring, and could result in more catch than is permitted under this final rule because this final rule prohibits directed fishing for grenadiers. Section 3.7.2 of the Analysis discusses the impacts of the alternatives on the ecosystem and notes that total catch of grenadiers represents a small proportion of the total grenadier biomass and that most commercial fisheries do not occur at depths where grenadiers are known to occur. The comment does not provide any specific comments on how managing grenadiers as “stocks in the fishery” would reduce potential impacts on the deep sea ecosystem more than the management measures implemented under this final rule. Section 3.7.2 of the Analysis also discusses the impacts of the input of dead organic material.

Comment 16: By weight, bycatch of grenadiers is among the worst problems in Alaska. The average catch of grenadiers is nearly 20 percent of the total bycatch in Alaska. In 2010, out of a total of 573 fish stocks nation-wide with reported bycatch estimates, there were only three other species that suffered more bycatch than grenadiers: Arrowtooth flounder in Alaska, Atlantic croaker in the Southeast, and sea scallops in the Northeast. All of these species, except for grenadier, are actively managed in a fishery through a fishery management plan.

Response: NMFS disagrees. Grenadier bycatch is not one of the worst problems in the fisheries off Alaska. As explained earlier in this preamble, catch of grenadiers, including the bycatch of grenadiers, represents a small proportion of the known biomass of grenadiers. Grenadiers are not subject to a directed fishery. A large proportion of the grenadier catch is discarded as bycatch because the flesh is unpalatable and no market for grenadiers exists.

Bottom trawl surveys have shown giant grenadier to be the most abundant species at depths 200 m to 1,000 m on the continental slope of the GOA, eastern Bering Sea, and Aleutian Islands (see Section 3.7.1 of the Analysis). The average biomass from the last three surveys is 553,557 mt in the eastern Bering Sea, 598,727 mt in the Aleutian Islands, and 597,884 mt in the GOA. And, as explained in Section 3.3.2 of the Analysis, NMFS likely underestimates grenadier biomass for a number of reasons, including that grenadiers are abundant in waters deeper than where NMFS surveys are conducted and grenadiers may be unavailable to bottom trawls during feeding because they move into the water column.

Average catch of grenadiers from 2003 through 2013 in the BSAI constitutes only 0.4 percent of the estimated grenadier biomass. Average catch of grenadiers from 2003 through 2013 in the GOA constitutes only 1 percent of the estimated grenadier biomass. Although the total tonnage of grenadiers caught and discarded as bycatch is higher than other species, it represents only a small proportion of the total biomass of grenadiers. Managing grenadiers as “stocks in the fishery” would not address the primary reason that grenadiers are discarded as bycatch—the fish is unpalatable and no market exists.

Comment 17: Grenadier bycatch in the sablefish fishery greatly exceeds 5 percent of the catch, and in some years, even exceeds the catch of sablefish. The Marine Stewardship Council certification of sablefish may be in jeopardy during the next annual audit. In order to retain Marine Stewardship Council certification, the sablefish fishery may have to develop and execute an action plan to address the bycatch problem in the fishery. Changing the definition of grenadier from bycatch to ecosystem component within the FMP does not change the obligation of the sablefish fishery to reduce bycatch under the Marine Stewardship Council.

Response: Including grenadiers in the EC category in the FMPs does not change the fact that grenadiers are bycatch in the sablefish fishery. The process that the Marine Stewardship Council uses to certify the sablefish fishery is an activity undertaken by a private entity and is outside the scope of this action. Nothing in Amendments 100/91 or this final rule prevents participants in the sablefish fishery from developing operational guidelines or other voluntary measures that may result in reduced grenadier bycatch in that fishery.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Administrator, Alaska Region, NMFS, has determined this final rule is necessary for the conservation and management of the groundfish fisheries and that it is consistent with Amendments 100/91, the FMPs, the National Standards, other provisions of the Magnuson-Stevens Act, and other applicable laws.

NMFS prepared an environmental assessment (EA) for Amendments 100/91 and this final rule and the Administrator, Alaska Region, NMFS, concluded that there will be no significant impact on the human environment as a result of this rule. The impact of this action is to limit and monitor the incidental catch of grenadiers in the groundfish fisheries. A copy of the EA is available from NMFS (see ADDRESSES).

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

This final regulatory flexibility analysis (FRFA) incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, and NMFS' responses to those comments, and a summary of the analyses completed to support the action.

Section 604 of the Regulatory Flexibility Act requires that, when an agency promulgates a final rule under section 553 of Title 5 of the U.S. Code, after being required by that section or any other law to publish a general notice of proposed rulemaking, the agency shall prepare an FRFA.

Section 604 describes the required contents of a FRFA: (1) A statement of the need for, and objectives of, the rule; (2) a statement of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; (3) the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments; (4) a description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available; (5) a description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and (6) a description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

A statement of the need for, and objectives of, the rule is contained in the preamble to this final rule and is not repeated here.

NMFS published a proposed rule to implement Amendments 100/91 on May 14, 2014 (79 FR 27557). An IRFA was prepared and summarized in the “Classification” section of the preamble to the proposed rule. The comment period closed on June 13, 2014. NMFS received 3 letters of public comment on Amendments 100/91 and the proposed rule. No comments were received on the IRFA or the small entity impacts of the rule. The Chief Counsel for Advocacy of the SBA did not file any comments on the proposed rule.

In the GOA, NMFS estimates that there are a total of 1,114 small catcher vessels and 5 small catcher/processors in the groundfish fisheries. The majority of these (581) are catcher vessels in the hook-and-line gear sector. In the BSAI, NMFS estimates that there are 118 small catcher vessels and 7 small catcher/processors in the groundfish fisheries. NMFS estimates that 72 small shoreside processors are directly regulated by this action. This number includes entities located in both the BSAI and GOA. Thus, NMFS estimates that this action directly regulates 1,316 small entities (1,232 catcher vessels, 12 catcher/processors, 72 shoreside processors) because the reporting requirements and MRAs apply to all participants in the groundfish fisheries.

A FRFA must describe the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency and that affect the impact on small entities was rejected. “Significant alternatives” are those that achieve the stated objectives for the action, consistent with prevailing law, with potentially lesser adverse economic impacts on small entities, as a whole.

The two aspects of this final rule that directly regulate small entities are the requirement to report grenadier catch under regulations at § 679.5(a)(3) and the requirement that vessels not exceed an MRA of 8 percent, under regulations at Tables 10 and 11 to part 679. These requirements have a de minimus economic impact on small entities, as explained in Section 5.7 of the Analysis. The reporting requirements were the same under all of the action alternatives.

The Council considered an MRA range of 2 percent to 20 percent, ultimately choosing an 8 percent MRA. The Council selected an 8 percent MRA to accommodate the current amount of grenadiers incidentally caught. The Council considered that there are very few instances when grenadier retention exceeds 8 percent; however, allowing a higher MRA of as much as 20 percent may not meet the objectives of providing precautionary management and placing limits on harvest, as identified in the purpose and need for the action.

Thus, there are no significant alternatives that accomplish the objectives of accounting for grenadier catch or MRA management and minimize adverse economic impacts on small entities.

The final rule modifies the recordkeeping and reporting requirements of the vessels and processors participating in the BSAI and GOA groundfish fisheries.

Presently, NMFS requires catcher vessel operators, catcher/processor operators, buying station operators, mothership operators, shoreside processor managers, and stationary floating processor managers to record and report all FMP species in logbooks, forms, eLandings, and eLogbooks. Recording is optional for non-FMP species. Grenadiers are currently listed as non-FMP species.

The final rule amends regulations to change the status of grenadiers (giant grenadiers and other grenadiers) from non-FMP species to FMP species and require operators to record and report grenadier species in logbooks, forms, eLandings, and eLogbooks. If operators retain and land grenadiers, then landings and the use of retained catch must be reported on fish tickets and production reports.

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. The preamble to the proposed rule and the preamble to this final rule serve as the small entity compliance guide. This rule does not require any additional compliance from small entities that is not described in the preambles to the proposed and final rules. Copies of this final rule are available on request from the NMFS Alaska Region Office (see ADDRESSES).

This rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), and which have been approved by Office of Management and Budget (OMB) under OMB Control Number 0648-0213 (paper recordkeeping and reporting) and OMB Control Number 0648-0515 (electronic recordkeeping and reporting). However, this rule only mentions these collections and does not change either collection-of-information.

Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES) and by email to [email protected], or fax to (202) 395-5806.

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. All currently approved NOAA collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.

For the reasons set out in the preamble, NMFS amends 50 CFR part 679 as follows:

Regulations governing the summer flounder fishery are in 50 CFR 648.100-110. These regulations require annual specification of a commercial quota that is apportioned among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.10(c)(1)(i).

The final rule implementing Amendment 5 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan provided a mechanism for summer flounder quota to be transferred from one state to another (December 17, 1993; 58 FR 65936). Two or more states, under mutual agreement and with the concurrence of the NMFS Greater Atlantic Regional Administrator, can transfer or combine summer flounder commercial quota under § 648.102(c)(2). The Regional Administrator is required to consider the criteria in § 648.102(c)(2)(i) when evaluating requests for quota transfers or combinations.

North Carolina has agreed to transfer 10,860 lb (4,926 kg) of its 2015 commercial quota to Massachusetts. This transfer was prompted by landings of the F/V Poseidon, a North Carolina vessel that was granted safe harbor in Massachusetts due to a medical emergency, on February 8, 2015. As a result of these landings, a quota transfer is necessary to account for an increase in Massachusetts landings that would have otherwise accrued against the North Carolina quota.

The Regional Administrator has determined that the criteria set forth in § 648.102(c)(2)(i) have been met. These transfers are consistent with the criteria because they will not preclude the overall annual quota from being fully harvested, the transfers address an unforeseen variation or contingency in the fishery, and the transfers are consistent with the objectives of the FMP and the Magnuson-Stevens Fishery Conservation and Management Act. The revised summer flounder commercial quotas for calendar year 2015 are: Massachusetts, 760,795 lb (345,091 kg); and North Carolina, 2,994,691 lb (1,358,368 kg).

This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.

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 jig gear in the Central Regulatory Area of the GOA is 276 metric tons (mt), as established by the final 2015 and 2016 harvest specifications for groundfish of the GOA (80 FR 10250, February 25, 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 jig gear in the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 271 mt and is setting aside the remaining 5 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 jig 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 jig 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 27, 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.

Federal regulations at 50 CFR part 679 implement the FMP and govern the groundfish fisheries in the BSAI. The Council prepared the FMP, and NMFS approved it under the Magnuson-Stevens Act. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify the total allowable catch (TAC) for each target species category. The sum TAC for all groundfish species must be within the optimum yield (OY) range of 1.4 million to 2.0 million metric tons (mt) (see § 679.20(a)(1)(i)). This final rule specifies the TAC at 2.0 million mt for both 2015 and 2016. NMFS also must specify apportionments of TAC, prohibited species catch (PSC) allowances, and prohibited species quota (PSQ) reserves established by § 679.21; seasonal allowances of pollock, Pacific cod, and Atka mackerel TAC; Amendment 80 allocations; and Community Development Quota (CDQ) reserve amounts established by § 679.20(b)(1)(ii). The final harvest specifications set forth in Tables 1 through 22 of this action satisfy these requirements.

Section 679.20(c)(3)(i) further requires NMFS to consider public comment on the proposed annual TACs (and apportionments thereof) and PSC allowances, and to publish final harvest specifications in the Federal Register. The proposed 2015 and 2016 harvest specifications and PSC allowances for the groundfish fishery of the BSAI were published in the Federal Register on December 8, 2014 (79 FR 72571). Comments were invited and accepted through January 7, 2015. NMFS received five letters with 13 comments on the proposed harvest specifications. These comments are summarized and responded to in the “Response to Comments” section of this rule. NMFS consulted with the Council on the final 2015 and 2016 harvest specifications during the December 2014 Council meeting in Anchorage, AK. After considering public comments, as well as biological and economic data that were available at the Council's December meeting, NMFS is implementing the final 2015 and 2016 harvest specifications as recommended by the Council.

The final ABC levels for Alaska groundfish are based on the best available biological and socioeconomic information, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. In general, the development of ABCs and overfishing levels (OFLs) involves sophisticated statistical analyses of fish populations. The FMP specifies a series of six tiers to define OFL and ABC amounts based on the level of reliable information available to fishery scientists. Tier 1 represents the highest level of information quality available while Tier 6 represents the lowest.

In December 2014, the Scientific and Statistical Committee (SSC), Advisory Panel (AP), and Council reviewed current biological and harvest information about the condition of the BSAI groundfish stocks. The Council's Plan Team compiled and presented this information in the final 2014 SAFE report for the BSAI groundfish fisheries, dated November 2014 (see ADDRESSES). The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the BSAI ecosystem and the economic condition of groundfish fisheries off Alaska. NMFS notified the public and asked for review of the SAFE report in the notice of proposed harvest specifications. From these data and analyses, the Plan Team recommended an OFL and ABC for each species or species category at the November 2014 Plan Team meeting.

In December 2014, the SSC, AP, and Council reviewed the Plan Team's recommendations. The final TAC recommendations were based on the ABCs as adjusted for other biological and socioeconomic considerations, including maintaining the sum of the TACs within the required OY range of 1.4 million to 2.0 million mt. As required by annual catch limit rules for all fisheries (74 FR 3178, January 16, 2009), none of the Council's recommended TACs for 2015 or 2016 exceeds the final 2015 or 2016 ABCs for any species category. The Secretary of Commerce approves the final 2015 and 2016 harvest specifications as recommended by the Council. NMFS finds that the Council's recommended OFLs, ABCs, and TACs are consistent with the preferred harvest strategy and the biological condition of groundfish stocks as described in the 2014 SAFE report that was approved by the Council.

A final rule implementing Steller sea lion protection measures in the BSAI became effective on December 26, 2014 (79 FR 70286, November 25, 2014). These regulations insure that the western distinct population segment of Steller sea lions' continued existence is not jeopardized or its critical habitat is not destroyed or adversely modified. These regulations alter areas open for directed fishing in the Aleutian Islands subarea of the BSAI. They also alter the harvest limitation in these harvest specifications for pollock, Atka mackerel, and Pacific cod primarily in the Aleutian Islands subarea of the BSAI. The proposed harvest specifications notified the public of possible changes to the harvest specification limits. Changes to the pollock, Atka mackerel, and Pacific cod harvest specifications that are required by the rule implementing the protection measures are described in the section for each of these target species.

For 2015, the Board of Fisheries (BOF) for the State of Alaska (State) established a Pacific cod guideline harvest level (GHL) in State waters between 164 and 167 degrees west longitude in the Bering Sea (BS) subarea. The Pacific cod GHL in this area is equal to 3 percent of the sum of the Pacific cod ABCs for the Aleutian Islands (AI) and the BS. To account for the State GHL fishery in 2015 and 2016, the Council reduced the final BS subarea TAC by 3 percent of the combined BS and AI subarea ABCs. The combined BS subarea TAC and GHL (248,178 mt) are less than the final BS subarea ABC.

For 2015, the BOF for the State established a Pacific cod GHL in State waters in the AI subarea. The Pacific cod GHL in this area is equal to 3 percent of the sum of the Pacific cod ABCs for the AI and the BS. To account for the State GHL fishery in 2015 and 2016, the Council reduced the final AI subarea TAC by 3 percent of the combined BS and AI subarea ABCs. The combined AI TAC and GHL (17,600 mt) equal the final AI subarea ABC.

In October 2014, the Council proposed its recommendations for the 2015 and 2016 harvest specifications (which were proposed by NMFS, 79 FR 72571, December 8, 2014), based largely on information contained in the 2013 SAFE report for the BSAI groundfish fisheries. Through the proposed harvest specifications, NMFS notified the public that these harvest specifications could change, as the Council would consider information contained in the final 2014 SAFE report, recommendations from the Plan Team, SSC, and AP committees, and public testimony when making its recommendations for final harvest specifications at the December Council meeting. NMFS further notified the public that, as required by the FMP and its implementing regulations, the sum of the TACs must be within the OY range of 1.4 million and 2.0 million mt.

Information contained in the 2014 SAFE reports indicates biomass changes for several groundfish species from the 2013 SAFE reports. At the December 2014 Council meeting, the SSC recommended the 2015 and 2016 ABCs for many species based on the best and most recent information contained in the 2014 SAFE reports. This recommendation resulted in an ABC sum total for all BSAI groundfish species in excess of 2 million mt for both 2015 and 2016. Based on the SSC ABC recommendations and the 2014 SAFE reports, the Council recommends increasing Bering Sea pollock by 52,000 mt. In terms of percentage, the largest increases in TACs were for Central Aleutian district (CAI) Atka mackerel and Western Aleutian district (WAI) Atka mackerel, octopuses, and Aleutian Island Pacific cod. The Atka mackerel fisheries are valuable and likely to be harvested to the full TAC available. The Council increased these TACs due to changes in Steller sea lion conservation measures. The octopuses increase was due to anticipated higher catches in 2015 and 2016, and the increase in Aleutian Islands Pacific cod was due to larger biomass estimates. Conversely, the largest decrease in TAC in terms of tonnage is 38,000 mt for yellowfin sole and 15,750 for rock sole. In terms of percentage change from the proposed TACs, Aleutian Island Greenland turbot and shortraker rockfish had the largest decreases in TAC. The Council decreased TACs for these species because they were not fully harvested in 2014. The changes to TAC between the proposed and final harvest specifications are based on the most recent scientific and economic information and are consistent with the FMP, regulatory obligations, and harvest strategy as described in the proposed harvest specifications. These changes are compared in Table 1A. Table 1 lists the Council's recommended final 2015 OFL, ABC, TAC, initial TAC (ITAC), and CDQ reserve amounts of the BSAI groundfish; and Table 2 lists the Council's recommended final 2016 OFL, ABC, TAC, initial TAC, and CDQ reserve amounts of the BSAI groundfish. NMFS concurs in these recommendations. The final 2015 and 2016 TAC recommendations for the BSAI are within the OY range established for the BSAI and do not exceed the ABC for any species or species group. The apportionment of TAC amounts among fisheries and seasons is discussed below.