The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2019-07-05, Amendment 39-19616 (84 FR 16386, April 19, 2019; corrected May 10, 2019 (84 FR 20542)) (AD 2019-07-05). AD 2019-07-05 applied to all Airbus SAS Model A318 series airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-211, -212, -214, -216, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. AD 2019-07-05 required repetitive inspections for cracking of the 10VU rack fitting lugs, and repair of any cracking. The FAA issued AD 2019-07-05 to address reading difficulties of flight-critical information displayed to the flightcrew during a critical phase of flight, such as an approach or takeoff, which could result in loss of airplane control at an altitude insufficient for recovery.

The NPRM published in the Federal Register on July 13, 2023 (88 FR 44740). The NPRM was prompted by AD 2022-0266, dated December 22, 2022, issued by the European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union (EASA AD 2022-0266) (also referred to as the MCAI). The MCAI states that during an unscheduled maintenance operation on an A330 airplane, the 10VU rack was removed for access, and cracks were discovered on 10VU rack side fittings on lugs 1, 3, and 4. As a similar design is installed on A320 family airplanes, a sampling review was done to determine the possible fleet impact. The result showed that several airplanes had cracked or broken 10VU rack side fittings. This condition, if not detected and corrected, could lead to a high vibration level on the primary flight and navigation displays during critical flight phases (take-off and landing), possibly creating reading difficulties for the crew.

In the NPRM, the FAA proposed to continue to require repetitive inspections for cracking of the 10VU rack fitting lugs, and repair of any cracking. In the NPRM, the FAA also proposed to require reduced compliance times and to remove airplanes having a certain modification from the applicability. The FAA is issuing this AD to address reading difficulties of flight-critical information displayed to the flightcrew during a critical phase of flight, such as an approach or takeoff, which could result in loss of airplane control at an altitude insufficient for recovery.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1409.

The FAA received comments from Air Line Pilots Association, International (ALPA), who supported the NPRM without change.

The FAA received additional comments from United Airlines (United). The following presents United's comments received on the NPRM and the FAA's response to each comment.

United requested revising the proposed AD to add a grace period for the reduced compliance times of the repetitive inspections. United stated that it accomplished the initial inspections on most of the fleet and already scheduled the repetitive inspections within the 20,000-flight-cycle or 40,000-flight-hour interval specified in AD 2019-07-05. United pointed out that the repetitive interval is reduced to 10,000 flight cycles or 20,000 flight hours in the proposed AD. United suggested a grace period of 20,000 flight cycles or 40,000 flight hours for the first repeat inspection and then 10,000 flight cycles or 20,000 flight hours for the following repeat inspections.

The FAA does not agree with the commenter's request to provide a grace period. In developing an appropriate compliance time for this action, the FAA considered the recommendations of the manufacturer and EASA, the urgency associated with the subject unsafe condition, the availability of required parts, and the practical aspect of accomplishing the required repair within a period of time that corresponds to the normal scheduled maintenance for most affected operators. The compliance times are not expected to ground any airplanes upon the effective date of this AD. United has not provided data for the FAA to consider. However, under the provisions of paragraph (l)(1) of this AD, the FAA will consider requests for approval of an extension of the compliance time if sufficient data are submitted to substantiate that the new compliance time would provide an acceptable level of safety. The FAA has not changed this AD in this regard.

United requested that the FAA revise the proposed AD to align more closely with EASA AD 2022-0266; Airbus Service Bulletin A320-92-1087, Revision 04, dated May 16, 2022; and Airbus Service Bulletin A320-92-1119, Revision 02, dated May 16, 2022. United stated that these documents allow further flights up to 5,000 flight cycles, 10,000 flight hours, or 24 months, whichever occurs first, after any finding of cracking on a single 10VU lug. The proposed AD would require repair before further flight for any number of lugs found to have cracking.

The FAA generally does not allow flights with known cracking. Therefore, the FAA requires repairing known cracks before further flight (although the FAA might make exceptions in certain cases of unusual need, as discussed below). This is based on the fact that such damaged airplanes do not conform to the FAA-certificated type design and, therefore, are not airworthy until a properly approved repair is made. While the FAA recognizes that repair deferrals might be necessary at times, the FAA intends to minimize adverse human factors relating to the lack of reliability of long-term repetitive inspections, which might reduce the safety of the type-certificated design if such repair deferrals are practiced routinely.

As noted above, the FAA might allow an exception to these requirements in certain cases, if there is an unusual need for a temporary deferral and if the temporary fix will maintain an adequate level of safety. Unusual needs include such circumstances as legitimate difficulty in acquiring parts to accomplish repairs. Under such conditions, the FAA might allow a temporary deferral of the repair, subject to a stringent inspection program acceptable to the FAA. The FAA acknowledges that the manufacturer has specified inspection intervals that are intended to allow continued operation with known cracks, and to prevent the need for extensive repairs. However, since the FAA is not aware of any unusual need for repair deferral in regard to this AD, the FAA has not evaluated these inspection intervals.

The FAA considers the compliance times in this AD to be adequate to allow operators to acquire parts to have on hand in the event that a crack is detected during inspection. Therefore, the FAA has determined that, due to the safety implications and consequences associated with such cracking, any 10VU lug that is found to be cracked must be repaired or modified before further flight. The FAA has not changed this AD in this regard.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Airbus Service Bulletins A320-92-1087, Revision 04, dated May 16, 2022; and A320-92-1119, Revision 02, dated May 16, 2022. This service information specifies procedures for repetitive inspections for cracking of the 10VU rack fitting lugs, and repair of any cracking. These documents are distinct since they apply to different airplane configurations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 461 airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

The FAA estimates that it would take about 1 work-hour per product to comply with the reporting requirement in this AD. The average labor rate is $85 per hour. Based on these figures, the FAA estimates the cost of reporting the inspection results on U.S. operators to be $85 per product.

The FAA estimates the following costs to do any necessary repairs that would be required based on the results of the inspection. The FAA has no way of determining the number of aircraft that might need these repairs:

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to take approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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

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

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

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

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

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

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

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

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-2154; Project Identifier MCAI-2023-00763-T” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Joshua Bragg, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: 817-222-5366; email: joshua.k.bragg@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

ANAC, which is the aviation authority for Brazil, has issued ANAC AD 2023-06-01, effective June 16, 2023 (ANAC AD 2023-06-01) (also referred to as the MCAI), to correct an unsafe condition for all Embraer S.A. Model ERJ 190-300 airplanes. The MCAI states unexpected wear, which was beyond the certification limits of the airplane, was found on the wing hinge bearing assembly of the aileron surfaces during the functional test of the aileron control system backlash. Excessive backlash may result in a limit cycle oscillation phenomenon exposing the surrounding structure and systems to unacceptable vibration levels and reducing the airplane controllability.

The FAA is issuing this AD to address the unsafe condition on these products. You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-2154.

ANAC AD 2023-06-01 specifies procedures for repetitive general visual inspections of the press-fitted bushings of the left-hand (LH) and right-hand (RH) wing ailerons for migration and broken sealant; repetitive detailed inspections to measure the distance between the LH and RH wing aileron surfaces and hinge fittings; repetitive functional checks of the backlash of the LH and RH wing aileron control system; and applicable related investigative and corrective actions. The related investigative actions include a detailed inspection of the torque values of the attachments parts on the LH and RH wing aileron surfaces; a general visual inspection of the press-fitted bushings on the LH and RH aileron surfaces, as applicable, for damage ( i.e., elongation, scratches, nicks) and rotation or migration ( i.e., gap between the bushing flange and lug, or broken sealant around the bushing); a general visual inspection of the sliding bushings of the LH and RH aileron surfaces, as applicable, for damage ( i.e., scratches, steps, and dents) and migration of the press-fitted bushing pair; a detailed inspection to measure the outer diameter of the sliding bushings; a detailed inspection to check the inner diameter of the press-fitted bushings of certain aileron fittings; measurement of the outer diameters of the mating sliding bushing and bolt shank; and an operational check of the aileron control system, or a rigging procedure and deflection check, as applicable. The corrective actions include retorquing the nuts and installing cotterpins on the bolts and nuts of the attachment parts on the LH and RH wing aileron surfaces; and replacing the bearings and press-fitted and sliding bushings.

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

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this AD after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This AD requires accomplishing the actions specified in ANAC AD 2023-06-01 described previously, except for any differences identified as exceptions in the regulatory text of this AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, ANAC AD 2023-06-01 is incorporated by reference in this AD. This AD requires compliance with ANAC AD 2023-06-01 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Service information required by ANAC AD 2023-06-01 for compliance will be available at regulations.gov under Docket No. FAA-2023-2154 after this AD is published.

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

There are currently no domestic operators of these products. Accordingly, notice and opportunity for prior public comment are unnecessary, pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the forgoing reason(s), the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

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

Currently, there are no affected U.S.-registered airplanes. If an affected airplane is imported and placed on the U.S. Register in the future, the FAA provides the following cost estimates to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need these on-condition actions:

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain ATR—GIE Avions de Transport Régional Model ATR42-500 and ATR72-212A airplanes. The NPRM published in the Federal Register on August 14, 2023 (88 FR 54944). The NPRM was prompted by AD 2023-0125, dated June 22, 2023, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2023-0125) (also referred to as the MCAI). The MCAI states that several occurrences of loose fasteners and cracks on the HS left- and right-hand leading edge lateral ribs, the box in between, the center box upper panel, and HS forward back-up fitting have been reported. Subsequent investigations identified possible manufacturing errors and a list of horizontal tail planes that could be affected by similar issues. This condition, if not detected and corrected, could reduce the structural integrity of the airplane.

In the NPRM, the FAA proposed to require an inspection of the HS affected areas (HS left-hand and right-hand leading edge lateral ribs, the box in between, the center box upper panel, and HS forward back-up fitting). for discrepancies and applicable corrective action, as specified in EASA AD 2023-0125. The FAA is issuing this AD to address loose, missing, or incorrectly installed fasteners, composite delamination, and cracks in the HS. The unsafe condition, if not addressed, could result in reduced structural integrity of the airplane.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1713.

The FAA received no comments on the NPRM or on the determination of the cost to the public.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

EASA AD 2023-0125 specifies procedures for a one-time detailed inspection of the HS left- and right-hand leading edge lateral ribs, the box in between, the center box upper panel, and HS forward back-up fitting for discrepancies ( i.e., loose, missing, and incorrectly installed fasteners, composite delamination, and a cracked fitting); and applicable corrective action. The corrective action includes contacting the manufacturer for repair instructions if any discrepancy is detected during any inspection.

ATR Service Bulletin ATR42-55-0020, dated March 2, 2023; and ATR Service Bulletin ATR72-55-1013, dated March 2, 2023; identify the affected airplane serial numbers.

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

The FAA estimates that this AD affects 16 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has received no definitive data on which to base the cost estimates for the on-condition repairs specified in this AD.

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model CL-600-2B16 (604 Variant) airplanes. The NPRM published in the Federal Register on August 14, 2023 (88 FR 54946). The NPRM was prompted by AD CF-2023-05, dated February 8, 2023, issued by Transport Canada, which is the aviation authority for Canada (referred to after this as the MCAI). The MCAI states that Bombardier received reports from the supplier of the overheat detection sensing elements of a manufacturing quality escape. Some of the sensing elements of the bleed air leak detection system were manufactured with insufficient salt fill, which can result in an inability to detect hot bleed air leaks and cause damage to surrounding structures and systems that can prevent continued safe flight and landing.

In the NPRM, the FAA proposed to require testing of all affected overheat detection sensing elements of the bleed air leak detection system, and replacement if necessary. In the NPRM, the FAA also proposed to prohibit the installation of affected parts. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1710.

The FAA received a comment from Bombardier. The following presents the comment received on the NPRM and the FAA's response to the comment.

Bombardier requested that the FAA remove reference to the 601-3A and 601-3R Variants from the proposed AD. Bombardier stated that Model CL-600-2B16 601-3A and 601-3R Variants are not affected by the identified unsafe condition; only Model CL-600-2B16 604 Variant airplanes are affected.

The FAA agrees and notes that the 604 Variant airplanes are those having serial numbers 5301 and subsequent, therefore, the 601-3A and 601-3R Variants are not applicable to this AD. The FAA revised the Summary, Background, and paragraph (c) of this AD accordingly.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comment received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Bombardier Service Bulletin 604-36-005, Bombardier Service Bulletin 605-36-002, and Bombardier Service Bulletin 650-36-001, all dated December 23, 2022. This service information specifies procedures for testing affected bleed air leak detection system sensing elements ( i.e., those marked with a date code before “A2105” (which corresponds to January 31, 2021) with a part number defined in this service information) to determine if they are serviceable and replacing failed sensing elements with serviceable ones. These documents are distinct since they apply to different airplane serial numbers.

The FAA reviewed Kidde Aerospace & Defense Service Bulletin CFD-26-1, Revision 6, dated February 28, 2022. This service information specifies affected continuous fire detector part numbers and testing procedures.

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

The FAA estimates that this AD affects 694 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The estimates the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need these on-condition actions.

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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

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

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

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

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

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

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because a temporary safety zone must be established immediately to protect personnel, vessels, and the marine environment from potential hazards created by the use of explosives for the implosion of the power plant and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule. It is impracticable to publish an NPRM because we must establish this safety zone by November 28, 2023.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because action is needed to respond to the potential safety hazards associated the use of explosives for the implosion of the Lansing Power Station starting November 28, 2023.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Upper Mississippi River (COTP) has determined that potential hazards associated with the use of explosions for the implosion of the Lansing Power Plant will be a safety concern for anyone operating or transiting within the Upper Mississippi River from MM 660.5 through 659.5. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the implosion is being conducted.

The implosion event will be occurring on two dates in which explosives will be used on an implosion of the Lansing Power Plant located between MM 660.5-659.5 beginning November 28, 2023. The safety zone is designed to protect waterway users until work is complete.

No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard (USCG) assigned to units under the operational control of USCG Sector Upper Mississippi River. To seek permission to enter, contact the COTP or a designated representative via VHF-FM channel 16, or through USCG Sector Upper Mississippi River at 314-269-2332. Persons and vessels permitted to enter the safety zone must comply with all lawful orders or directions issued by the COTP or designated representative. The COTP or a designated representative will inform the public of the effective period for the safety zone as well as any changes in the dates and times of enforcement, as well as reductions in the size of the safety zone through Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), and/or Safety Marine Information Broadcast (SMIB), as appropriate.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, and duration of the safety zone. The safety zone would impact a small designated area located on the Upper Mississippi River at MM 660.5-659.5, near Lansing, IA. The Safety Zone is expected to be active only during the implosion events, from November 28 until December 08, 2023. Vessel traffic will be able to safely transit around this safety zone when the safety zone is not enforced.

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

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator because the zone will be enforced only when work is being conducted.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone encompassing the width of the Upper Mississippi River at MM 660.5-659.5. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

The Coast Guard will enforce the safety zone in 33 CFR 165.1198 for the Military Ocean Terminal Concord, CA (MOTCO) regulated area from 12:01 on November 26, 2023, until 11:59 p.m. on December 3, 2023, or as announced via marine information bulletin. This safety zone is necessary to protect personnel, vessels, and the marine environment from potential explosion within the explosive arc. The regulation for this safety zone, § 165.1198(a), specifies the location of the safety zone which encompasses the navigable waters in the area between 500 yards of MOTCO Pier in position 38°03′30″ N, 122°01′14″ W and 3,000 yards of the pier. During the enforcement period, as reflected in § 165.1198(d), if you are the operator of a vessel in the regulated area you mut comply with the instructions of the COTP or the designated on-scene patrol personnel. Vessel operators desiring to anchor or otherwise loiter within the safety zone must contact Sector San Francisco Vessel Traffic Service at 415-556-2760 or VHF Channel 14 to obtain permission.

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

The Commission submitted information collection requirements for review and approval by OMB, as required by the Paperwork Reduction Act (PRA) of 1995, on August 30, 2023, and the information collections were approved by OMB on November 7, 2023. The information collection requirements are found in the Commission's Updating the Intercarrier Compensation Regime to Eliminate Access Arbitrage, WC Docket No. 18-155, Second Report and Order, FCC 23-31 (April 21, 2023), which was summarized in 88 FR 35743, on June 1, 2023. The OMB Control Number is 3060-0298. The Commission publishes this document as an announcement of the effective and compliance dates of the rules published on June 1, 2023. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, 45 L Street NE, Washington, DC 20554, regarding OMB Control Number 3060-0298. Please include the applicable OMB Control Number in your correspondence. The Commission will also accept your comments via email at PRA@fcc.gov.

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

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the Commission is notifying the public that it received OMB approval on November 7, 2023, for the information collection requirements contained in 47 CFR 51.914(d) and (g), published at 88 FR 35743, on June 1, 2023. Those sections have been delayed indefinitely, but are now added to 47 CFR 51.914 and will be effective January 2, 2024. In addition, the text in the delayed § 51.914(d) which states “[the effective date of this paragraph (d)—which will be 30 days after the Commission publishes the notification of OMB approval in the Federal Register ]” is replaced with January 2, 2024.

This document also revises § 51.914(e) and (f) to add a reference to § 51.914(d). The references to § 51.914(d) in § 51.914(e) and (f) in the Access Arbitrage Second Report and Order were not added to CFR pending the receipt of OMB approval for § 51.914(d). These revisions to § 51.914(e) and (f) are effective on January 2, 2024.

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

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0298.

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

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

OMB Control Number: 3060-0298.

OMB Approval Date: November 7, 2023.

OMB Expiration Date: November 30, 2026.

Title: Part 61, Tariffs (Other than the Tariff Review Plan).

Form Number: N/A.

Respondents: Business or other for-profit entities.

Number of Respondents and Responses: 3,834 respondents; 4,659 responses.

Estimated Time per Response: 1 hour-50 hours.

Frequency of Response: On occasion, annual, biennial and one-time reporting requirements.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in sections 151-155, 201-205, 208, 251-271, 403, 502 and 503 of the Communications Act of 1934, as amended (the Act), 47 U.S.C. 151-155, 201-205, 208, 251-271, 403, 502 and 503.

Total Annual Burden: 171,378 hours.

Total Annual Cost: $604,000.

Needs and Uses: On April 21, 2023, the Commission released the Access Arbitrage Second Report and Order, WC Docket No. 18-155, FCC 23-31, 88 FR 35743, which added rules applicable to internet Protocol Enabled Service (IPES) Providers engaged in Access Stimulation. In the Access Arbitrage Second Report and Order, the Commission adopted rules requiring that access-stimulating IPES Providers provide notice of their status to the Commission by filing a record of their access-stimulating status in the Commission's Access Arbitrage docket, and to provide notice to any affected Interexchange Carriers (IXCs) and Intermediate Access Providers of the same, within 45 days of the effective date of that requirement after approval of that information collection by OMB (or for an entity that later engages in access stimulation, 45 days from the date it commences access stimulation). If, after the effective date of this requirement, an access-stimulating IPES Provider is no longer engaged in Access Stimulation, the IPES Provider must file notice of that change in status with the Commission and with any affected IXCs and Intermediate Access Providers.

The revisions to this collection reflect the notice and reporting requirements adopted by the Commission in the Access Arbitrage Second Report and Order. The information provided by IPES Providers pursuant to rules adopted in the Access Arbitrage Second Report and Order informs interested parties of an entity's engagement in Access Stimulation.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 51 as follows:

The Commission submitted new information collection requirements for review and approval by OMB, as required by the Paperwork Reduction Act (PRA) of 1995, on October 25, 2023, which were approved by the OMB on November 27, 2023. The information collection requirements are contained in the Commission's Order on Reconsideration, Second Report and Order, and Order, FCC 23-6 published at 88 FR 17379, March 23, 2023. The OMB Control Number is 3060-0804. The Commission publishes this document as an announcement of the effective date of the rules that required PRA approval. If you have any comments on the burden estimates listed herein, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, 45 L Street NE, Washington, DC 20554. Please include the OMB Control Number, 3060-0804, in your correspondence. The Commission will also accept your comments via email at PRA@fcc.gov.

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

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the Commission is notifying the public that it received OMB approval on November 27, 2023, for the information collection requirements contained in 47 CFR 54.604, 54.605, and 54.627. Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0804.

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

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

OMB Control Number: 3060-0804.

OMB Approval Date: November 27, 2023.

OMB Expiration Date: November 30, 2026.

Title: Universal Service—Rural Health Care Program.

Form Nos.: FCC Form 460, 461, 462, 463, 465, 466, 467, and 469.

Type of Review: Revision of a currently approved collection.

Respondents: Business or other for-profit; Not-for-profit institutions; Federal Government; and State, local, or Tribal governments.

Number of Respondents and Responses: 12,854 unique respondents; 116,404 responses.

Estimated Time per Response: 0.30-17 hours.

Frequency of Response: On occasion, One-time, Annual, and Monthly reporting requirements.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this collection of information is contained in sections 1-4, 201-205, 214, 254, 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 201-205, 214, 254, 303(r), and 403, unless otherwise noted.

Total Annual Burden: 442,117 hours.

Total Annual Cost: No Cost.

Needs and Uses: This collection is utilized for the RHC support mechanism of the Commission's universal service fund (USF). The Commission and USAC will use the information to determine if entities are eligible for funding pursuant to the RHC universal service support mechanism, to determine whether entities are complying with the Commission's rules, and to prevent waste, fraud, and abuse. This information also allows the Commission to evaluate the extent to which the RHC Program is meeting the statutory objectives specified in section 254(h) of the 1996 Act, and the Commission's performance goals for the RHC Program.

To aid in collecting this information, the public will use the Commission's forms to provide the necessary information and certifications. This revision modifies the existing information collection requirements applicable to the Telecommunications (Telecom) Program as a result of the 2023 Promoting Telehealth Order on Reconsideration, Second Report and Order, and Order, FCC 23-6, rel. January 27, 2023 (88 FR 17379, March 23, 2023). The revisions, where applicable, are intended to simplify calculations of support in the Telecom Program and streamline the invoicing process in the Telecom Program.

The Pacific Coast Groundfish fishery in the U.S. exclusive economic zone (EEZ, defined at 50 CFR 660.10) seaward of Washington, Oregon, and California is managed under the Pacific Coast Groundfish Fishery Management Plan (FMP). The Pacific Fishery Management Council (Council) developed the Pacific Coast Groundfish FMP pursuant to the Magnuson-Stevens Act (16 U.S.C. 1801 et seq. ). The Secretary of Commerce approved the Pacific Coast Groundfish FMP and implemented the provisions of the plan through Federal regulations at 50 CFR part 660, subparts C through G. Species managed under the Pacific Coast Groundfish FMP include more than 90 species of roundfish, flatfish, rockfish, sharks, and skates.

This final rule implements regulations for Amendment 32 to the Pacific Coast Groundfish FMP (also referred to interchangeably as “this action”). Consistent with MSA Section 303(c)(1), the Council deemed the proposed regulations consistent with and necessary to implement Amendment 32 in a July 21, 2023 letter from Council Chairman Merrick Burden to Regional Administrator Jennifer Quan. The Notice of Availability for Amendment 32, which describes the specific changes being made to the FMP, was published on August 2, 2023 (88 FR 50830) and was open for public comment through October 1, 2023. The proposed rule for Amendment 32, which includes the regulations necessary for implementing Amendment 32, was published on August 30, 2023 (88 FR 59838), and was open for public comment through September 29, 2023.

In addition to implementing changes to the regulations at 50 CFR parts 300 and 660 to implement Amendment 32, this final rule also implements minor, clarifying and administrative revisions to the regulations in part 660. These administrative changes correct the name of the Cordell Bank Groundfish Conservation Area (Cordell Bank GCA), amend the description of the Cordell Bank GCA, add new regulatory definitions for different types of fishing bait, and add new exemptions to Vessel Monitoring System (VMS) reporting requirements.

In the early 2000s, several types of groundfish conservation areas (GCAs), defined at § 660.11, were implemented (as part of FMP Amendment 16-3) to protect overfished groundfish species off the U.S. West Coast; this includes the coastwide Non-Trawl Rockfish Conservation Area (Non-Trawl RCA) (68 FR 908, January 7, 2003), and the Cowcod Conservation Areas (CCAs) (66 FR 2338, January 11, 2001) in the Southern California Bight. With the rebuilt status of almost all of these groundfish species (the exception being yelloweye rockfish, which is projected to rebuild by 2029), the Council has been prioritizing increased fishing access to these areas for groundfish non-trawl fisheries ( i.e., the directed open access sector, the California recreational sector, the limited entry fixed gear (LEFG) sector, and vessels that use non-trawl gear under the Trawl Individual Fishing Quota (IFQ) Program). Amendment 32 and its implementing regulations included in this final rule provide additional fishing opportunity in these closures through a suite of modifications to GCA boundaries, gear specifications, and catch restrictions, while continuing to rebuild yelloweye rockfish and mitigate fishing impacts to sensitive habitats.

The Non-Trawl RCA is a coastwide, contiguous area bounded by the EEZ or specific latitude and longitude coordinates that approximate depth contours along the West Coast continental shelf and around select islands off Southern California. Non-Trawl RCA boundaries are not consistent along the coast; they vary by management area ( i.e., the shoreward and seaward boundaries are shallower or deeper, depending on latitude). The Non-Trawl RCA prohibits almost all commercial non-tribal directed groundfish fishing with non-trawl gear, and also applies to the non-tribal directed commercial Pacific halibut fishery (see 50 CFR 300.63(e)(1)).

The seaward boundary of the Non-Trawl RCA approximates the 100 fathom (fm, 183 meters (m)) depth contour seaward of Oregon and the 100 (183 m) or 125 fm (229 m) depth contour seaward of California, depending on latitude (see Tables 2 North and South of subpart E and Tables 3 North and South to subpart F). The implementing regulations for Amendment 32, as included in this final rule, move the seaward boundary of the Non-Trawl RCA shoreward to the depth contour that approximates 75 fm (137 m) seaward of both Oregon and California, which opens up approximately 2,411 square miles (sq mi, 6,244 square kilometers (sq km)) to all non-trawl commercial groundfish sectors and the non-tribal directed commercial Pacific halibut fishery. Adjusting the Non-Trawl RCA boundary for both the commercial non-tribal directed groundfish and Pacific halibut fisheries reduces enforcement complexity and provides additional fishing opportunity. The Non-Trawl RCA boundaries in the Southern California Bight (south of 34°27′ N lat.) will not change, as the 75-100 fm (137-183 m) depth range is already open in this area.

The final rule for the 2023-24 Groundfish Harvest Specification and Management Measures action (87 FR 77007, December 16, 2022) authorized the use of two new hook-and-line gear configurations for use inside the Non-Trawl RCA by the directed open access sector as defined at § 660.11. These two new gear configurations included stationary vertical jig gear (see § 660.330(b)(3)(i)) and groundfish troll gear (see § 660.330(b)(3)(ii)). The implementing regulations for Amendment 32, as included in this final rule, allow vessels participating in the LEFG sector and vessels that use non-trawl gear under the Trawl IFQ program ( i.e., “IFQ gear switchers”) to fish with these gear types under their respective catch limits rather than under open access trip limits. In other words, LEFG vessels can fish inside the Non-Trawl RCA pursuant to their respective trip limits listed in subpart E Tables 1 North and South, and IFQ gear switchers can fish inside the Non-Trawl RCA under their quota pounds. Vessels will be required to make an appropriate declaration (specified at § 660.13(d)) that corresponds to their respective sector and the chosen gear type ( i.e., either stationary vertical jig gear or groundfish troll gear); only one declaration may be made on these fishing trips. On a fishing trip where any fishing occurs inside the Non-Trawl RCA, only one type of non-bottom contact gear is permitted to be carried on board, and no other fishing gear of any type can be carried on board or stowed during that trip. The vessel will be allowed to fish inside and outside the Non-Trawl RCA on the same fishing trip, provided a valid declaration report as required at § 660.13(d) is filed with NMFS' Office of Law Enforcement (OLE). Crossover provisions at § 660.60(h)(7)(ii) will not apply for the two Non-Trawl RCA gear types ( i.e., non-bottom contact stationary vertical jig gear and groundfish troll gear). Access to these higher trip limits will increase fishing opportunity and provide operational flexibility for these vessels.

The two new hook-and-line gear configurations authorized as part of the 2023-24 Groundfish Harvest Specification and Management Measures action (87 FR 77007, December 16, 2022) were implemented along with a suite of gear specifications intended to minimize yelloweye rockfish bycatch and seabird interactions. For the stationary vertical jig gear, fishermen were required to have a minimum of 50 feet (15 m) between the bottom weight and the lowest fishing hook to ensure that fishing activity occured off the bottom (see § 660.330(b)(3)(i)(A)). In addition, only artificial bait was permitted; natural bait was prohibited (see § 660.330(b)(3)(i)(D)). This final rule modifies these gear restrictions to instead allow a minimum of 30 feet (9 m) between the bottom weight and the lowest fishing hook, and allow the use of natural bait. These changes are expected to increase catch of underutilized stocks, while continuing to mitigate catch of rebuilding yelloweye rockfish. No changes in gear restrictions are being made for the groundfish troll gear configuration. Fishermen must continue to have a minimum of 50 feet (15 m) between the bottom weight and the lowest fishing hook, and are still required to use artificial bait with groundfish troll gear.

The CCA was implemented in 2001 to reduce the bycatch of overfished cowcod (66 FR 2338, January 11, 2001), which was declared rebuilt in 2019. Within the CCA, which is comprised of the Western and Eastern CCAs, groundfish fishing by all commercial and recreational groundfish fisheries, including those that use both trawl and non-trawl gear, is prohibited. This final rule removes the CCA restrictions for all groundfish non-trawl fisheries, which opens up approximately 4,663 sq mi (12,077 sq km) to all non-trawl commercial and recreational groundfish sectors. The CCA is remaining in place for groundfish trawl fisheries, as the scope of the Council's action only considered non-trawl sectors. The purpose of this change is to provide fishing opportunity in this area given that cowcod has been declared rebuilt. Prior to the effective date of this final rule, non-trawl fishing was allowed shoreward of the 40 fm (73 m) lines around the islands and banks within the current boundaries of the CCA. With this final rule's removal of non-trawl CCA restrictions, the 40 fm (73 m) restriction is no longer in place ( i.e., vessels can operate anywhere in the area, subject to pre-existing area closures). Eight new closures are established in the former boundaries of the CCA for non-trawl groundfish commercial and recreational fisheries (see the next section on Groundfish Exclusion Areas ).

The Council recommended defining new fathom lines around islands and banks that reside inside the current CCA. Specifically, the Council recommended that coordinates be defined in the regulations for the 50, 60, 75, 100, 125, and 150 fm (91 m, 110 m, 137 m, 183 m, 229 m, and 274 m respectively) lines around Santa Barbara Island, San Nicolas Island, Cortes Bank, and Tanner Bank, and the 150 fm (274 m) line around Osborn Bank and the Eastern CCA. The purpose of defining these fathom lines around the islands and banks is to provide flexible management tools to restrict fishing seaward or shoreward of the new lines as needed, which would prevent interactions with certain nearshore species and control catch of groundfish. This final rule defines these boundaries in the regulations and they will be available for use in the future should the Council wish to recommend activating depth-based closures. The Council may also recommend modifying the status of these closures via an inseason action consistent with § 660.60(c) or via a rulemaking action for groundfish fisheries management.

Amendment 32 and its implementing regulations included in this final rule create a new type of GCA called a GEA, which is intended to mitigate potential impacts to sensitive environments from certain groundfish fishing activity. Specifically, eight GEAs are being established in this action: (1) Hidden Reef; (2) West of Santa Barbara Island; (3) Potato Bank; (4) 107/118 Bank; (5) Cherry Bank; (6) Seamount 109; (7) Northeast Bank; and (8) The 43-Fathom Spot. All of these GEAs are located in the Southern California Bight in the area where non-trawl CCA restrictions are removed. These GEAs keep approximately 428 sq mi (1,100 sq km) closed to non-trawl fishing effort. The purpose of this change is to create a type of GCA that can be used to protect sensitive areas that are separate and distinct from groundfish essential fish habitat (EFH). These GEAs prohibit all commercial and recreational groundfish fishing. Commercial fishing vessels are allowed to continually transit through GEAs provided that all gear is stowed. Recreational vessels are allowed to continually transit through GEAs provided that no gear is deployed. If fishing for non-groundfish species within the GEAs, no groundfish is allowed on board the vessel.

A YRCA is a type of GCA used to mitigate bycatch of yelloweye rockfish in groundfish fisheries. Given that yelloweye rockfish is still rebuilding, the Council considered establishing new YRCAs in the event that yelloweye rockfish bycatch increases with increased fishing access to the Non-Trawl RCA. Amendment 32 and this final rule establishes four new YRCAs seaward of Oregon: (1) Tillamook YRCA; (2) Newport YRCA; (3) Florence YRCA; and (4) Heceta Bank YRCA. Within the YRCAs, restrictions apply to both commercial groundfish non-trawl fisheries and the non-tribal directed commercial Pacific halibut fishery. In recommending Amendment 32, the Council proposed that only one of the YCRAs would be “active” at the time of implementation. The other three closures would be “inactive” until the Council recommends, and NMFS implements, those closures. Thus, in this final rule, only the Heceta Bank YRCA is active. The Tillamook, Newport, and Florence YRCAs are defined and established in Federal regulations at § 660.11, but will remain inactive until the Council recommends modifying their inactive status and NMFS implements such changes via an inseason action consistent with § 660.60(c) or a future rulemaking action on groundfish fisheries. NMFS would need to modify the status of these YRCAs for the non-tribal directed commercial Pacific halibut fishery via a standard rulemaking process ( i.e., not an inseason action), as the current regulations on the non-tribal directed commercial halibut fishery do not include a regulatory mechanism for modifying closed areas inseason.

The Magnuson-Stevens Act requires that FMPs describe and identify EFH and minimize to the extent practicable, adverse effects on EFH caused by fishing. The Pacific Coast Groundfish FMP authorizes the use of EFHCAs to protect groundfish EFH from specific types of fishing activity. Federal regulations at §§ 660.75 through 660.79 provide the coordinates for all current EFHCAs off the U.S. West Coast. Prior to this final rule, there were two types of EFHCAs: bottom trawl and bottom contact. Both bottom trawl and bottom contact EFHCAs apply to all fisheries and are not limited in application to groundfish fisheries. Amendment 32 creates a new type of EFHCA that prohibits using non-trawl bottom contact gear ( e.g., pot/longline) for all non-tribal groundfish fisheries and the non-tribal directed commercial Pacific halibut fishery. The purpose of this new type of EFHCA is to protect groundfish EFH that will be newly exposed to non-trawl bottom contact gear from moving the seaward boundary of the Non-Trawl RCA to 75 fm (137 m) seaward of Oregon. Specifically, this final rule establishes five new EFHCAs: (1) Nehalem Bank East; (2) Bandon High Spot East; (3) Arago Reef West; (4) Garibaldi Reef North; and (5) Garibaldi Reef South. All of these new EFHCAs overlap partially or entirely with existing bottom trawl EFHCAs ( i.e., bottom trawl gear is already prohibited in these areas), which is why the specified gear prohibition only includes non-trawl bottom contact gear. Taking, retaining, or possessing (except for the purpose of continuous transit) groundfish or Pacific halibut in these new EFCHAs is prohibited.

The Pacific Coast Groundfish FMP and its implementing regulations authorize the use of BACs as a routine management measure to control bycatch of groundfish in trawl fisheries. BACs, defined at § 660.11, are size variable spatial closures in the EEZ bounded by latitude lines or the EEZ, with depth contour approximations defined at §§ 660.71 through 660.74 ((10 fm (18 m) through 250 fm (457 m)), and §  660.76 (700 fm (1280 m)). Amendment 28 to the FMP (84 FR 63966, November 19, 2019) first established BACs as a management tool to control bycatch of groundfish. The salmon bycatch minimization measures final rule (86 FR 10857, February 23, 2021) expanded BACs as a tool to minimize salmon bycatch. Amendment 32 and its implementing regulations included in this final rule expand the use of BACs for groundfish non-trawl fisheries. The purpose of this change is to create a mechanism to control bycatch of groundfish and bycatch of protected or prohibited species from non-trawl fisheries given the new flexibilities ( e.g., newly opened fishing grounds). Thus, under this final rule, BACs can be implemented in the EEZ coastwide. BACs also could be implemented within tribal Usual and Accustomed (U&A) fishing areas but would only apply to non-tribal vessels.

This final rule does not implement specific individual BACs. This final rule allows NMFS to close or reopen BACs preseason or inseason. This approach is consistent with existing routine management measures in framework amendments to the FMP that have already been implemented and incorporated into the regulations. Most trip, bag, and size limits, and some GCA closures in the groundfish fishery, including Bycatch Reduction Areas and BACs, have been designated routine management measures in the Pacific Coast Groundfish FMP and in §  660.60(c). The Council can recommend to NMFS implementation or modification of these routine management measures through an expedited process involving a single Council meeting. Inseason changes are announced in the Federal Register pursuant to the requirements of the Administrative Procedure Act. If good cause exists under the Administrative Procedure Act to waive notice and comment, a single Federal Register notification will announce routine inseason BACs recommended by the Council and implemented by NMFS.

When deciding whether to recommend BACs for NMFS to implement, consistent with the Pacific Coast Groundfish FMP, the Council considers environmental impacts, economic impacts, and public comments that are received via the Council process. Depending on the circumstances, NMFS may close areas for a defined period of time, for example, a few months or the remainder of the fishing year, or NMFS may maintain a closure for an indefinite period of time, for example, until reopened by a subsequent action. NMFS may close one or more BACs and the size of the BACs can vary. A Federal Register notification will announce the geographic boundaries of one or more BACs, the effective dates, applicable gear/fishery restrictions, as well as the purpose and rationale. NMFS would also disseminate this information on BACs through public notices and by posting on the West Coast Region website (see ADDRESSES for electronic access information).

The Council prepared a detailed Analysis (see Electronic Access section of ADDRESSES ) that analyzed the effects of Amendment 32 on various resources. A brief summary of expected effects from the Analysis was provided in the proposed rule (88 FR 59838, August 30, 2023) and is not repeated here.

In addition to the actions described above, NMFS is also implementing three minor regulatory changes in this final rule. These changes, which are necessary to improve clarity of existing regulations, are administrative in nature.

NMFS is universally correcting all instances of “Cordell Banks” to its correct name of “Cordell Bank.” NMFS is modifying the description of the Cordell Bank GCA at § 660.70(q) to clarify that fishing is not permitted “within” its boundaries as opposed to “around” its boundaries, as currently specified in the regulations. The purpose of this change is to clarify the intended meaning of these regulations for fishermen and to support enforcement efforts, but this change does not constitute a material change to the GCA.

NMFS is adding regulatory definitions for artificial lure, bait (both natural and artificial), and weighted gear under § 660.11. As amended by this final rule, the regulations allow for the use of natural bait on non-bottom contact stationary vertical jig gear in the Non-Trawl RCA, and continue to prohibit its use on groundfish troll gear in the Non-Trawl RCA. However, natural bait is not defined in the regulations. The purpose of adding these definitions (which are based on common usage) is to clarify the types of bait that are permitted for use within the Non-Trawl RCA. This will aid fishermen and support enforcement efforts.

Vessels participating in the limited entry groundfish fishery, open access vessels using non-groundfish trawl gear (vessels fishing for ridgeback prawn, California halibut, and sea cucumber trawl), and any vessels that use open access gear targeting groundfish or that have groundfish bycatch (salmon troll, prawn trap, Dungeness crab, halibut longline, California halibut line gear, and sheephead trap), are required to install a NMFS OLE type-approved mobile transceiver unit and to arrange for a NMFS OLE type-approved communications service provider to receive and relay transmissions to NMFS OLE prior to fishing. These units automatically record a vessel's position ( i.e., the vessel's geographic location in latitude and longitude coordinates), and transmit those coordinates to a communications service provider.

Exemptions from the VMS requirement for specific reasons are allowed (50 CFR 660.14(d)(4)). VMS users must follow the requirements at § 660.14(d)(4)(vi) to submit exemption reports. Existing exemptions include a haul out exemption, an outside areas exemption, a permit exemption, and a long-term departure exemption. This final rule is creating two new exemptions: one for maintenance that does not require a haul out, and one for sale of a vessel. Like the existing haul out exemption, the new maintenance exemption allows VMS units to temporarily be inoperable and allows transmissions to be discontinued while work is being done on the vessel. However, the new maintenance exemption is not limited to maintenance that is conducted while a vessel is hauled out.

The new exemption for sale of a vessel would be an extension of the existing long-term departure exemption. This new exemption for sale of a vessel is being implemented as a response to situations in which new owners purchase vessels and discontinue use of VMS units used by the previous owners. If the previous owners do not submit a long-term departure exemption prior to the sale, the requirement for the VMS units to operate continues to exist on the sold vessels, even when the new owners do not participate in an activity requiring VMS.

Both of these new exemptions will create flexibilities in the vessel owners' VMS requirements when vessels are not participating in an activity requiring VMS. If these new exemptions were not added to the regulations, fishermen would continue to be in violation of VMS requirements while their vessels undergo long-term maintenance or when prior owners of newly purchased vessels did not submit a long-term departure exemption prior to selling the vessel.

The notice of availability for Amendment 32 was published on August 2, 2023 (88 FR 50830), and was open for comment until October 1, 2023. NMFS received a total of four public comments on the notice of availability. The proposed rule for Amendment 32 was published on August 30, 2023 (88 FR 59838), and was open for public comment until September 29, 2023. NMFS received a total of five public comments on the proposed rule. Two commenters provided the same comments for both the notice of availability and for the proposed rule. A summary of public comments submitted for both the notice of availability and the proposed rule and NMFS' responses to all of those comments are provided below.

Comment 1: An anonymous individual submitted a comment on the notice of availability requesting that NMFS ensure that the new GEAs being implemented in the Southern California Bight allow fishing for non-groundfish species.

Response: The new GEAs will only prohibit groundfish fishing. If a vessel is fishing for non-groundfish species within the GEAs, no groundfish is allowed on board the vessel. This information is in the preamble to the proposed rule (88 FR 59838), the Analysis (see ADDRESSES ), and the preamble to this final rule.

Comment 2: A private individual submitted a comment on the proposed rule, questioning why boundary changes to the Non-Trawl RCA are only being made seaward of Oregon and California, and not off Washington.

Response: During the development of this action, the Council contemplated changes to the Non-Trawl RCA boundary seaward of Washington (see Agenda Item E.6.a Supplemental WDFW Report 1 of the November 2021 briefing book at https://www.pcouncil.org ). However, the alternative that included changes off Washington was withdrawn for possible future consideration due to anticipated overlap and resulting conflicts between tribal, recreational, and commercial fisheries, as well as concern over increased yelloweye bycatch and habitat impacts (see Agenda Item G.6.a WDFW Report 1 in the September 2022 briefing book at https://www.pcouncil.org ). Therefore, changes to the Non-Trawl RCA off Washington were not included in the recommendation by the Council for this action and are not being included in this final rule.

Comment 3: A private individual submitted a comment on the proposed rule, expressing concern over the potential of increased drift gillnetting in the newly opened fishing areas.

Response: This action opens up fishing areas for groundfish non-trawl fisheries and the non-tribal directed commercial Pacific halibut fishery only. Neither of these fisheries utilize drift gillnets. This rule does not open any fishing area to drift gillnetting.

Comment 4: A professional mariner/private citizen from Oregon submitted a comment on the proposed rule expressing concern that this action is not placing enough emphasis on protection of fish species. This same commenter also expressed concern that the VMS haul out exemption will yield enforcement and accountability challenges.

Response: The Magnuson-Stevens Act dictates that conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each U.S. fishery. Yelloweye rockfish is the only fish species currently under a rebuilding plan. To mitigate potential yelloweye rockfish impacts off Oregon, the Council recommended, and NMFS is implementing, three new YRCAs for potential future use if yelloweye rockfish bycatch becomes an issue, and one new YRCA that will be active at the time of implementation ( i.e., the Heceta Bank YRCA).

With regard to the concern over the VMS haul out exemption, NOAA's OLE supports the additional clarification of exemptions to allow fishery participants to have flexibility when needed to conduct non-haul out maintenance on a vessel involving a disruption to power, thus impacting VMS transmissions. Sufficient documentation of maintenance activities is required in the submission of the maintenance exemption report. In addition, adequate safeguards are in place to ensure vessels with a maintenance exemption do not resume fishing before VMS transmissions resume.

Comment 5: A fisherman from Crescent City, California, submitted a comment on the notice of availability, expressing concern over the closing of the nearshore rockfish fishery in Northern California due to quillback rockfish and its negative impact to the local economy.

Response: This comment is outside the scope of this action, as this action does not implement any changes to quillback rockfish catch limits or closures.

Comment 6: The environmental nongovernmental organization (NGO) Oceana submitted a comment letter on both the notice of availability and proposed rule requesting that NMFS disapprove the proposed modifications to Non-Trawl RCA management measures seaward of California. Oceana expressed concern over adverse effects of moving this boundary to: (1) EFH, namely coral and sponges; (2) yelloweye rockfish because it is still rebuilding; and (3) canary rockfish, based on a claim that new science indicates that canary rockfish has not rebuilt. Oceana supports moving the Non-Trawl RCA boundary to 75 fm (137 m) off Oregon because the implementing regulations for Amendment 32 provide additional EFH and yelloweye rockfish fishery closures in the area being opened to fishing. Based on the fact that these measures are being implemented for Oregon and not for California, Oceana claims that Amendment 32 fails to minimize potential fishing impacts to EFH and rebuilding rockfish stocks off California. Oceana supports all other aspects of Amendment 32.

Response: NMFS thanks Oceana for its expressed support for aspects of Amendment 32. Below is the NMFS response to the Oceana concerns.

By moving the seaward boundary of the Non-Trawl RCA to 75 fm (137 m) seaward of Oregon and California, small portions of 23 EFHCAs (17 for California, 6 for Oregon) that currently prohibit bottom trawling will be newly exposed to bottom contact non-trawl gear, such as pot and longline gear. Although the Non-Trawl RCA was implemented to protect overfished groundfish stocks, these 23 bottom trawl EFCHAs have received ancillary protection from non-trawl gear due to their overlap with the Non-Trawl RCA. This final rule minimizes, to the extent practicable, adverse effects to EFH from fishing, as described below.

During the development of this action, the Council extensively reviewed all 23 EFCHAs and whether or not the small portions that would be exposed from moving the Non-Trawl RCA boundary warranted immediate protection in advance of the Council's next EFH review process. For example, the Nehalem Bank EFCHA includes area that has been a long-term study site for the Oregon Department of Fish and Wildlife (ODFW) since 2007 for evaluating the before and after effects of bottom trawling on macroinvertebrates. Similarly, the Bandon High Spot EFHCA includes Coquille Bank, which is also an active research site. Disturbance to these areas by new bottom contact gear activity inside the EFHCAs could compromise the research being conducted and therefore warranted a closure to bottom contact gear ahead of the upcoming routine EFH review, which is set to begin in 2025. For the remaining EFHCAs off of Oregon, including Garibaldi Reef North, Garibaldi Reef South, and Arago Reef, the Council chose to add additional EFH protections due to a review of recent 2019 ODFW data indicating a high amount of rocky reef habitat.

Similar reasons were not identified for the EFHCAs seaward of California. Of the 17 bottom trawl EFHCAs off California, only 4 have portions greater than 5 sq mi (13 sq km) that will be exposed by this action. This final rule converts 113.5 sq mi (294 sq mi) of the almost 200 sq mi (518 sq km) of area currently closed to all bottom trawl EFHCAs, to be closed to all groundfish bottom contact gear. The Analysis describes the current understanding of potential pot gear and longline gear impacts on hard substrates. Generally, fishermen avoid high relief areas due to concerns of gear loss or gear damage, however, when there are interactions, the best available information suggests that impacts are minor and recovery time is less than 6 months (see Chapter 7 of the EA). While the Analysis acknowledges that adverse impacts to EFH may occur, the Analysis concluded there would be no significant adverse impacts from Amendment 32 on habitat. Ultimately, the Council decided to consider whether additional protections are needed for the exposed bottom trawl EFHCAs seaward of California during the next routine groundfish EFH review, which is set to begin in 2025 (see Council transcript, page 108-109 from the September 2022 meeting at https://www.pcouncil.org ) when updated habitat data is available to fully inform what protections are needed. In the interim and prior to any future EFH protections that may result from the Council's next EFH review, the individual areas being exposed are small and comprise a total of 77.9 sq mi (202 sq km); the Analysis concluded that significant impacts for the purpose of NEPA are not anticipated in these areas. Therefore, NMFS has determined that opening of the Non-Trawl RCA off California does minimize adverse impacts on habitat and opening of this area to non-trawl fishing is supported by the best available information.

With regard to yelloweye rockfish, the Council is opening the Non-Trawl RCA via a step-wise approach, with one of the primary reasons being to continue adequate protection for yelloweye rockfish, which is rebuilding ahead of the time frame anticipated in the rebuilding plan. As Oceana points out, one new YRCA (Heceta Bank) is being implemented to protect important yelloweye rockfish habitat off Oregon. In addition, three new YRCAs are being defined in regulation because the Council identified them as flexible inseason tools that could be activated if yelloweye bycatch becomes a concern; these new YRCAs were selected based on a review of the Yelloweye Habitat Suitability Model. The Council did not identify any areas of California that appear necessary for a YRCA, and therefore none were recommended to NMFS.

With regard to canary rockfish, Oceana cites a recent Scientific and Statistical Committee (SSC) report (see Agenda Item G.2.a Supplemental SSC Report 1 September 2023 at https://www.pcouncil.org ) that includes a review of the current 2023 stock assessment. The new model's hindcast estimates that the stock may have still been below the management target when it was declared rebuilt in 2015. However, the stock was declared rebuilt at the time based on the best scientific information available. The new 2023 stock assessment indicates that the stock is currently at 35.1 percent of unfished biomass, which is in the precautionary zone and still above the minimum stock size threshold of 25 percent unfished biomass ( i.e., not overfished). The SSC adopted the 2023 stock assessment as the best scientific information available for informing management. The Council and NMFS will continue to track the status of canary rockfish, and NMFS can take a diversity of actions to reduce catch of canary rockfish if necessary.

With regard to impacts to coral and sponge habitats, Oceana expressed concern over the Office of National Marine Sanctuaries' (ONMS) request of the Council to implement fishery closures for coral research and restoration sites that require long-term closure from bottom contact gear types, and how the implementing regulations for Amendment 32 will expose areas that may be used for these purposes. At the June 2023 Council meeting, ONMS requested that the Council consider a process starting in September 2023 to meet the sanctuaries needs for deep-sea coral research and restoration (see Agenda Item C.8.a, Supplemental ONMS report 1, June 2023). The Council began formal consideration of this issue at its September 2023 meeting (see Agenda Item H.2, September 2023) and has scheduled consideration of closing areas suitable for coral research and restoration (see Agenda Item H.10, Supplemental Attachment 4: Draft Proposed Council Meeting Agenda, September 2023 at https://www.pcouncil.org ). At their September 2023 meeting, the Council identified three areas that will be analyzed for coral restoration and research. The Council is expected to select a preliminary preferred alternative for sites to close for coral research and restoration at their March 2024 meeting.

Comment 7: The environmental NGO the Center for Biological Diversity (CBD) submitted a comment letter on both the notice of availability and proposed rule opposing the implementing regulations for Amendment 32 and the analysis in the EA. As described below, CBD expressed concern over fishing impacts from pot gear to humpback whales listed under the Endangered Species Act (ESA), fishing impacts from fixed gear on ESA-listed leatherback sea turtles, and fishing impacts from hook-and-line gear on ESA-listed short-tailed albatross. CBD also expressed concern over adverse impacts from pot and longline gear on deep-sea coral and sponge habitats.

Response: In its letter, CBD asserts that NMFS should not open the Non-Trawl RCA as proposed because NMFS has failed to assess the impacts on corals and sponges. CBD asserts that the impacts from opening this area will cause a significant impact on corals and sponges and therefore an Environmental Impact Statement is needed. However, in support of this assertion, CBD relies on general information about coral and sponge life history and the impact of fishing on those species and does not provide any basis for why Amendment 32 specifically causes a significant impact on corals and sponges. As indicated in the Purpose and Need for Amendment 32 (described in the Analysis), habitat protection was part of the consideration of the Council (“The purpose of the proposed actions are to provide additional access in some areas that are currently closed to groundfish fishing inside the Non-Trawl Rockfish Conservation Area (RCA) and Cowcod Conservation Area (CCA). In doing so, measures were developed to address adverse effects on designated Essential Fish Habitat (EFH) and sensitive benthic habitats exposed to fishing activity under the proposed actions and mitigate bycatch of groundfish and protected and prohibited species.”). In the development of the action, the Council and NMFS considered impacts on habitat from opening the Non-Trawl RCA, including EFH, corals and sponges, including as documented in the EA for this action. In addition, CBD has failed to acknowledge that the Council recommended, and NMFS is implementing, tools specifically designed to minimize the impact of the action on habitat, including corals. This includes implementing GEAs off California and EFHCAs that prohibit non-trawl bottom contact gear ( e.g., pot/longline) off Oregon, efforts that were developed with significant public input including from environmental NGOs. Further, as stated above, the Council announced its intent to evaluate exposed EFH off California during the Council's routine EFH review process, which starts in 2025.

CBD incorrectly asserts that NMFS has an obligation under the National Environmental Policy Act (NEPA) to quantify the impacts on coral habitat through “seabed mapping at a meter's spatial resolution”. However, consistent with its NEPA obligations, NMFS used the best available information to determine if there is a significant impact of an action—seabed mapping at a meter's spatial resolution across the Non-Trawl RCA, spanning waters off California and Oregon, does not currently exist. NMFS and the Council conducted extensive analysis, through a rigorous public process, on the habitat impacts of opening parts of the Non-Trawl RCA, including the additional habitat mitigation measures mentioned above ( i.e., GEAs and EFCHAs). The Analysis discloses the potential for impacts of the proposed action on habitat, including identifying those areas that are proposed to be open to fishing where there are higher densities of corals and sponges and identifying the potential adverse impacts of fishing gear on that habitat. In addition to the maps presented in the Analysis, this information was available via a Public Map Viewer, which allowed users to zoom in on any specific area being opened to fishing. The Public Map Viewer includes a layer that shows deep-sea coral and sponge observations, a layer that shows a variety of seafloor substrate types ( i.e., hard bottom, soft bottom, or mixed), and a layer that shows habitat areas of particular concern. The Analysis identified that there was no expected significant impact of the action on habitat. NMFS used the best available information to make a Finding of No Significant Impact and thereby satisfied its NEPA obligations.

In its letter, CBD alleges that the proposed rule would remove a seabird mitigation measure for two gear types which “may affect” ESA-listed short-tailed albatross, and therefore NMFS must consult with the U.S. Fish and Wildlife Service (USFWS). Regarding ESA consultation, the USFWS issued a Biological Opinion in 2017 concluding that the continued operation of the Pacific Coast Groundfish Fishery was not likely to jeopardize the continued existence of short-tailed albatross (FWS reference: 01EOFW00-2017-F-0316) as well as other ESA-listed species. Regarding the removal of seabird mitigation measures, CBD misunderstood the proposed action. Currently, there is a prohibition on the use of natural bait on both stationary vertical jig gear and groundfish troll gear ( i.e., the only two gear types currently allowed for use inside the Non-Trawl RCA). CBD has asserted that the proposed rule would remove this prohibition for both gear types. This is incorrect; the implementing regulations for Amendment 32 will only allow natural bait on stationary vertical jig gear. As stated in the Analysis, vertical lines on stationary vertical jig gear are closely tended to the vessel and do not float at the surface and thus significant impacts to seabirds are not expected. NMFS discussed allowing natural bait on this gear type with the USFWS during the development of Amendment 32, and the USFWS concurred that allowing natural bait on the stationary vertical jig gear does not necessitate re-initiation under the ESA. The prohibition on using natural bait on groundfish troll gear inside the Non-trawl RCA will remain in place. NMFS notes that non-bottom contact stationary vertical jig gear has been tested inside the Non-Trawl RCA since 2013 under an exempted fishing permit (EFP) project; artificial bait was required in the EFP because the nature and performance of the gear was not initially known. After 9 years of EFP testing with 100 percent observer coverage, there have been zero documented seabird interactions. Because of the way in which the gear is fished and the reduced exposure of baited hooks and proximity to humans, NMFS does not anticipate risk to seabirds from the use of natural bait on stationary vertical jig gear. Therefore, NMFS determined that there was no significant impact of the proposed action on seabirds. NMFS has also determined that re-initiation of ESA consultation is not warranted, as Amendment 32 and its implementing regulations will not affect endangered and threatened species or critical habitat in any manner or to an extent not considered in the 2017 Biological Opinion.

CBD asserts that NMFS should re-initiate ESA consultation for the impact of this action on ESA-listed leatherback sea turtles and their critical habitat because the proposed rule would pose a risk of gear entanglement not contemplated in the 2012 Biological Opinion (NWR-2012-876). CBD supports this claim by pointing out that NMFS has implemented a fishery closure to protect leatherback sea turtles in the drift gillnet fishery. NMFS notes that the drift gillnet fishery is a different fishery managed under the Highly Migratory Species FMP, and that the Analysis prepared for this action contemplates potential impacts from groundfish non-trawl fisheries under the Pacific Coast Groundfish FMP. As described in the Analysis and the 2012 Biological Opinion, there has not been a documented interaction with a leatherback sea turtle in the groundfish fishery since 2008. Additionally, there is no evidence to suggest that a geographic expansion of fishery effort (not an increase in fishing effort) into the area being opened significantly increases the risk of entanglement to leatherback sea turtles. As a result of this action, the density of non-trawl gear in the EEZ both shoreward and seaward of the Non-Trawl RCA will likely lessen, as some vessels will likely shift some of their effort to the newly opened depth bin. This will increase the spatial distribution of fixed gear, but will not change the overall amount of effort nor will it concentrate effort in a particular area. In addition, there is no evidence to suggest that vessels fishing in 75-100 fm or 75-125 fm (137-183 m or 137-229 m) would create more potential for sea turtle interactions compared to fishing in 100-125 fm (183-229 m) or greater, depths at which fishing is already open. NMFS is not aware of any information, and CBD has failed to provide any supporting information, that indicates that the action presents a notable increase in potential exposure to sea turtles. Therefore, in the Finding of No Significant Impact, NMFS concluded that Amendment 32 will not significantly impact ESA-listed sea turtles. NMFS also has determined there are no anticipated impacts on ESA-listed leatherback sea turtles beyond those impacts already considered in the 2012 Biological Opinion and therefore re-initiation is not warranted.

CBD asserts that NMFS should re-initiate ESA consultation for the impact of this action on ESA-listed humpback whales and their critical habitat in part because the proposed rule would pose a risk of entanglement not contemplated under the 2020 Biological Opinion. As stated in the preamble to the proposed rule, NMFS evaluated the effects of the groundfish fishery on ESA-listed humpback whales and their critical habitat in the 2020 Biological Opinion for the Pacific Coast Groundfish Fishery (WCRO-2018-01378). Although there will likely be a geographic effort shift from the sablefish pot fishery as well as other non-trawl fisheries into the newly opened area, the Council and NMFS do not anticipate an overall increase in the number of participants in any non-trawl fishery sector. As explained in the Analysis, it is the amount of gear in the water rather than the amount of area or habitat designation that affects potential entanglement risk for whales. This action does not change the overall amount of sablefish that can be caught by the fishery, which was analyzed as part of the 2023-2024 Biennial Harvest Specifications and Management Measures EA (available at https://www.fisheries.noaa.gov/west-coast/laws-and-policies/groundfish-actions-nepa-documents ). That EA describes the anticipated impacts and potential for adverse impacts of fixed gear in the groundfish fishery on ESA-listed humpback whales from the harvest levels implemented in the 2023-2024 harvest specifications. Similarly, the 2020 Biological Opinion evaluates the effects of the fixed gear fishery on ESA-listed humpback whales and acknowledges that there is risk from entanglements, but not at a level which jeopardizes the ESA-listed species or adversely modifies critical habitat. In the Analysis for this action, and in the determination of whether re-initiation of the 2020 Biological Opinion was required, NMFS evaluated the anticipated changes from moving the boundary of the Non-Trawl RCA. As a result of this action, the density of pot gear and other non-trawl gear in the EEZ both shoreward and seaward of the Non-Trawl RCA will likely lessen, as some vessels will likely shift some of their effort to the newly opened depth bin. This will increase the spatial distribution of pot gear, but will not change the overall amount of effort nor will it concentrate effort in a particular area. In addition, there is no evidence to suggest that vessels fishing in 75-100 fm or 75-125 fm (137-183 m or 137-229 m) would create more potential for whale interactions compared to fishing in 100-125 fm (183-229 m) or greater, depths at which fishing is already open. NMFS is not aware of any information, and CBD has failed to provide any supporting information beyond generalizations about humpback whale critical habitat, that indicates that the action presents a notable increase in potential exposure to migrating humpback whales nor that the area includes known or significant foraging or breeding area.

Therefore, in the Finding of No Significant Impact, NMFS concluded that Amendment 32 will not significantly impact ESA-listed humpback whales. NMFS also concluded there are no anticipated impacts to the Mexican Distinct Population Segment (DPS) or the Central American DPS of humpback whales from Amendment 32 beyond those impacts already considered in the 2020 Biological Opinion and therefore re-initiation is not warranted.

NMFS acknowledges CBD's comment that the draft Analysis does not mention the Central American DPS of humpback whale. The Analysis intentionally discusses potential impacts to humpback whales in a generic sense without discussion of the separate subpopulations, however Figure 27 and Figure 28 mistakenly omit the Central American DPS in the legends. NMFS has corrected this in the Final Analysis.

CBD has alleged that NMFS cannot rely on the 2021 Marine Mammal Protection Act (MMPA) 101(a)(5)(E) permit that was issued for the sablefish pot gear fishery. However, this assertion incorrectly states the status of that permit. On July 26, 2023, Judge James Donato in the Northern District of California signed an order approving a stipulated settlement agreement between NMFS and CBD resolving claims in the matter of Center for Biological Diversity v. Raimondo, et al., 3:22-cv-117 (N.D. Cal.). Under that agreement, the parties agreed that “The National Marine Fisheries Service's Marine Mammal Protection Act permit regarding the sablefish pot gear fishery is hereby remanded to the agency for further consideration without vacatur.” Therefore, the permit is still operable while NMFS addresses other stipulations in the settlement agreement.

Finally, CBD claims that NMFS failed to acknowledge a 2021 humpback whale entanglement in the hook-and-line fishery and that this entanglement triggers re-initiation of the 2020 Biological Opinion. The Council's ESA Workgroup Report from the June 2023 Council meeting included information on the 2021 entanglement (see Agenda Item H.6.a GESW Report 1 June 2023 at https://www.pcouncil.org ); this report was referenced in the Analysis. Because this is new information, NMFS' investigation on this entanglement is ongoing. The 2020 Biological Opinion evaluates the ongoing operation of the entire Pacific Coast groundfish fishery, all gear types and sectors. NMFS expects this entanglement will be incorporated into a future stock assessment report for humpback whales and will continue to be evaluated relative to whether this information would lead to a re-initiation of the 2020 Biological Opinion.

NMFS has identified minor technical changes that must be made to the proposed rule's regulatory text amending the regulations to implement Amendment 32. These technical changes reflect inadvertent omissions in the proposed rule's regulatory text. This final rule includes the following technical changes in the regulatory text, as described below.

First, this final rule adds a generic definition for GEAs at § 660.11, as opposed to only describing GEAs in the regulatory sections that describe sector-specific management measures. The purpose of adding this generic definition is to clarify the scope of options for using GEAs. For example, GEAs do not always need to prohibit all groundfish sectors from fishing in a certain area or prohibit the use of all gear types from a certain area; they can prohibit specific fishing sectors or specific gear types. This is consistent with the existing regulations for how BACs may be implemented to control bycatch of groundfish.

Second, this final rule modifies the regulations at § 300.63(f)(1), § 660.11, § 660.60(c)(3)(i), § 660.230(d)(14) and § 660.330(d)(15) to clarify that the shoreward boundary of the EEZ ( i.e., the State/Federal 3-nautical mile line) can be used as a boundary for the Non-Trawl RCA. NMFS inadvertently omitted this change in the proposed rule. Adding this change will make the use of the Non-Trawl RCA consistent with the use of BACs, whose east and west boundaries may also be defined by EEZ boundaries, and are not necessarily restricted to boundary lines that approximate depth contours.

Third, this final rule includes changes that provide additional clarification on the requirements for using the non-bottom contact gear types described at § 660.330(b)(3). These requirements are necessary for adequate enforcement of proper usage of these gear types. Therefore, this final rule amends § 660.13(d)(4)(iv) to clarify that only one declaration for legal non-bottom contact hook-and-line gear may be made per fishing trip ( i.e., either gear code 36 at § 660.(d)(4)(iv)(A)( 28 ) or code 37 at § 660.(d)(4)(iv)(A)( 29 )). This change is consistent with the requirement in current regulations at § 660.330(b)(3) specifying that only one legal non-bottom contact gear type may be carried on board at a time. Therefore, to avoid potential confusion among fishermen, this final rule corrects the inadvertent omission in the proposed rule of an amendment to § 660.13(d)(4)(iv) to similarly specify that only one declaration can be made. Adding this change is consistent with the Council and NMFS's intent for these gear provisions.

Fourth, this final rule corrects an inaccurate citation (for a table) in the regulations at § 660.330(d)(14), which describes the regulations for open access fisheries around the Farallon Islands. The proposed rule's reference to Table 2 South should, instead, be a reference Table 3 South, as this provision is in the open access portion of the regulations, whereas Table 2 South is in the LEFG portion of the regulations.

No changes were made to the final rule in response to public comments on the proposed rule.

Pursuant to section 304(b)(1)(A) and 305(d) of the Magnuson-Stevens Act and Section 5 of the Northern Pacific Halibut Act of 1982 (Halibut Act, 16 U.S.C. 773c), the NMFS Assistant Administrator has determined that this final rule to implement Amendment 32 is consistent with the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law. For rulemaking efficiency, NMFS is also implementing minor administrative regulatory changes. These changes include corrections to all references to “Cordell Bank,” and, in the description of the Cordell Bank GCA at § 660.70(q), clarifying that fishing is not permitted “within” its boundaries as opposed to “around” its boundaries; adding new regulatory definitions for different types of fishing bait, and adding new exemptions to the Vessel Monitoring System reporting requirements.

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

There are no relevant Federal rules that may duplicate, overlap, or conflict with this action.

The Chief Counsel for Regulation, Department of Commerce, certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action will not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a final regulatory flexibility analysis was not required and none was prepared.

This final rule contains a collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This rule will revise the existing requirements under OMB control # 0648-0573, “VMS and Declarations,” by adding and modifying declaration codes for the purpose of monitoring and enforcing the new provisions in the Non-Trawl RCA for limited fixed gear vessels and IFQ gear switchers. These new declaration codes are not anticipated to alter the number of respondents, anticipated responses, burden hours, or burden costs, as the affected vessels are already required to declare their fishing activities. The new declaration codes will allow NOAA's OLE to track those vessels that are declaring to fish inside the Non-Trawl RCA and identify what catch limits they should adhere to. Public reporting burden for submitting a declaration report is estimated to average 4 minutes per individual report, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Submit comments on these or any other aspects of the collection of information at www.reginfo.gov/public/do/PRAMain.

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.

For the reasons set out in the preamble, NMFS amends 50 CFR parts 300 and 660 as follows:

The additions and revisions read as follows:

The South Atlantic snapper-grouper fishery includes snowy grouper and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council (Council) and is implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

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

On May 22, 2023, NMFS published a notice of availability for Amendment 51 and requested public comment (88 FR 32717). On May 30, 2023, NMFS published a proposed rule for Amendment 51 and requested public comment (88 FR 34460). NMFS approved Amendment 51 on August 17, 2023. The proposed rule and Amendment 51 outline the rationale for the actions contained in this final rule. A summary of the management measures described in Amendment 51 and implemented by this final rule is described below.

All weights described in this final rule are in gutted weight.

In 2004, a stock assessment for snowy grouper was completed through the Southeast Data, Assessment, and Review (SEDAR) process (SEDAR 4), and NMFS determined that the stock was subject to overfishing and was overfished. As a result of that stock status, the final rule for Amendment 13C to the FMP implemented management measures to end overfishing (71 FR 55096, September 21, 2006), and Amendment 15A to the FMP established a rebuilding plan for the snowy grouper stock (73 FR 14942, March 20, 2008). The rebuilding plan year started in 2006 with a target time of 34 years to rebuild the snowy grouper stock.

The snowy grouper stock was assessed again in 2013 through SEDAR 36 and was determined to not be undergoing overfishing. Although the stock was overfished, it was rebuilding. In response to the assessment and a subsequent acceptable biological catch (ABC) recommendation by the Council's Scientific and Statistical Committee (SSC), management actions were implemented through the final rule for Regulatory Amendment 20 to the FMP (80 FR 43033, July 21, 2015). Regulatory Amendment 20 and its implementing final rule increased the ACL by setting it equal to the ABC and OY, increased the commercial trip limit to 200 lb (91 kg), and modified the recreational fishing season from the calendar year to May through August.

The most recent SEDAR stock assessment for South Atlantic snowy grouper (SEDAR 36 Update) was completed in 2021 and included data through 2018. The assessment used revised estimates for recreational catch from the Marine Recreational Information Program (MRIP) based on the Fishing Effort Survey (FES). In 2018, the MRIP fully transitioned its estimation of recreational effort to the mail-based FES. Previous estimates of recreational catch for snowy grouper were made using MRIP's Coastal Household Telephone Survey (CHTS) phone call-based methodology. As explained in Amendment 51, total recreational fishing effort estimates generated from the MRIP-FES are different than those from the MRIP-CHTS and other earlier survey methods. This difference in estimates is because the MRIP-FES is designed to measure fishing activity more accurately, not because there was a sudden change in fishing effort. The MRIP-FES is considered a more reliable estimate of recreational effort by the Council's SSC, the Council, and NMFS, and more robust compared to the MRIP-CHTS method. The SSC reviewed the SEDAR 36 Update and found that the assessment was conducted using the best scientific information available, and was adequate for determining stock status and supporting fishing level recommendations. The findings of the assessment indicated that the South Atlantic snowy grouper stock remains overfished and is undergoing overfishing.

Following a notification from NMFS to a fishery management council that a stock is undergoing overfishing and is overfished, the Magnuson-Stevens Act requires the fishery management council to develop an FMP amendment with actions that immediately end overfishing and rebuild the affected stock. In a letter dated June 10, 2021, NMFS notified the Council that the snowy grouper stock is overfished and undergoing overfishing but continues to rebuild, and the Council subsequently developed Amendment 51 in response to the results of SEDAR 36 Update.

In addition to the proposed revisions to the sector ACLs and seasonal commercial quotas, the Council determined that further modifications to snowy grouper management measures are needed to help constrain recreational harvest to the revised fishing levels in Amendment 51. This final rule reduces the length of the recreational fishing season and also adjusts the recreational accountability measures (AMs) to ensure they are effective at keeping recreational landings from exceeding the revised recreational ACL and correct for any ACL overages if they occur. The Council decided not to revise the current commercial trip limit or AMs, finding that those measures sufficiently ensured that the commercial harvest of snowy grouper is constrained to its ACL.

The Council determined that the actions in Amendment 51 would end overfishing of South Atlantic snowy grouper, rebuild the stock, and achieve OY while minimizing, to the extent practicable, adverse social and economic effects.

This final rule revises the total ACL and sector ACLs, seasonal commercial quotas, recreational fishing season, and the recreational AMs for snowy grouper in the South Atlantic exclusive economic zone (EEZ).

As implemented through the final rule for Regulatory Amendment 20, the current total ACL and annual OY for snowy grouper are equal to the current ABC of 185,464 lb (84,125 kg). Amendment 51 revised the ABC, and set the ABC, ACL, and annual OY equal to each other.

This final rule revises the total ACL and annual OY equal to the recommended ABC of 119,654 lb (54,274 kg) for 2023; 121,272 lb (55,008 kg) for 2024; 122,889 lb (55,741 kg) for 2025; and 122,889 lb (55,741 kg), for 2026 and subsequent fishing years.

Amendment 51 sets the total ACL for snowy grouper for 2023, 2024, 2025, and in 2026, with the 2026 ACL in place for the subsequent fishing years. However, the ACL value for 2025 is identical to the ACL value for 2026. While NMFS is listing the ACL value for 2025 and 2026 in the SUPPLEMENTARY INFORMATION section of this final rule, in the regulations section of this final rule NMFS states the total and sector ACLs for snowy grouper in 2025 and subsequent fishing years without repeating the same ACL value for 2026.

Amendment 51 revises the commercial and recreational allocations of the total ACL for snowy grouper. The current sector ACLs for snowy grouper are based on the commercial and recreational allocations of the total ACL at 83 percent and 17 percent, respectively, that were revised in Regulatory Amendment 20. These allocations were determined using average commercial and recreational landings from 1986 through 2005, which included estimates of recreational catch from the MRIP-CHTS method.

In Amendment 51, the Council recommended allocations using the average commercial and recreational landings from 1986 through 2005, but included the estimates of recreational catch during those years using the MRIP-FES method from the SEDAR 36 Update. The Council recommended new commercial and recreational allocations of 87.55 percent and 12.45 percent, respectively, which results in a shift of allocation of 4.55 percent from the recreational sector to the commercial sector. The Council reasoned that using average landings from 1986 through 2005 was more appropriate because it would exclude the more recent years that had depth and area closures that may have affected the allocation calculations and would achieve the most appropriate balance between the needs of both sectors. The Council acknowledged that because the snowy grouper portion of the snapper-grouper fishery operates primarily in deeper water and is therefore more difficult to access for recreational fishermen, when compared to snapper-grouper species in shallower water and closer to shore, the allocations between sectors have historically and consistently been much greater for the commercial sector. NMFS considers this allocation to be fair and equitable to fishery participants in both the commercial and recreational sectors, and would be carried out in such a manner that no particular individual, corporation, or other entity would acquire an excessive share. NMFS has determined that this allocation is also reasonably calculated to promote conservation and is a wise use of the resource, since it will remain within the boundaries of a total ACL that is based upon an ABC recommendation from the Council's SSC and incorporates the best scientific information available. NMFS acknowledges that the commercial sector would benefit from additional allocation, but considers the economic shifts to be relatively minor.

The commercial ACLs will be 104,757 lb (47,517 kg) for 2023; 106,174 lb (48,160 kg) for 2024; 107,589 lb (48,802 kg) for 2025; and 107,589 lb (48,802 kg) for 2026 and subsequent years.

The recreational ACLs will be 1,668 fish for 2023; 1,691 fish for 2024; 1,713 fish for 2025; and 1,713 fish for 2026 and subsequent years.

The commercial quota for snowy grouper is equivalent to the commercial ACL. Regulatory Amendment 27 to the FMP established two commercial fishing seasons for snowy grouper and divided the commercial quota between the seasons (85 FR 4588, January 27, 2020). Season 1 is from January through June with 70 percent of the commercial quota, and Season 2 is from July through December with 30 percent of the quota. Any commercial quota remaining from Season 1 is added to the commercial quota in Season 2, but any commercial quota remaining from Season 2 is not carried forward into the next fishing year. Amendment 51 and this final rule do not alter the current commercial fishing seasons or seasonal allocations of the commercial ACL.

Under Amendment 51, the commercial quotas in 2023 for Season 1 will be 73,330 lb (33,262 kg) and for Season 2 will be 31,427 lb (14,255 kg); in 2024, Season 1 will be 74,322 lb (33,712 kg) and Season 2 will be 31,852 lb (14,448 kg); in 2025, Season 1 will be 75,312 lb (34,161 kg) and Season 2 will be 32,277 lb (14,641 kg); and for 2026 and subsequent years, Season 1 will be 75,312 lb (34,161 kg) and Season 2 will be 32,277 lb (14,641 kg).

Recreational harvest of snowy grouper is currently allowed from May 1 through August 31 each year. This final rule revises the recreational fishing season for snowy grouper where harvest will be allowed only from May 1 through June 30. The recreational sector will be closed annually from January 1 through April 30, and from July 1 through December 31. During the seasonal closures, the recreational bag and possession limits for snowy grouper will be zero. Shortening the time recreational fishing is allowed will help to reduce the risk that recreational harvest will exceed its reduced sector ACL, while still allowing for retention of snowy grouper when recreational fishermen target co-occurring species, such as blueline tilefish, in some areas.

The current recreational AMs were implemented through the final rule for Amendment 34 to the FMP (81 FR 3731, January 22, 2016). The AMs for snowy grouper include an in-season closure for the remainder of the fishing year if recreational landings reach or are projected to reach the recreational ACL, regardless of whether the stock is overfished. The AMs also include a post-season adjustment if recreational landings exceed the recreational ACL, and then during the following fishing year recreational landings will be monitored for a persistence in increased landings. If the total ACL for snowy grouper is exceeded and the stock is overfished, the length of the recreational fishing season and the recreational ACL are reduced by the amount of the recreational ACL overage.

This final rule revises the recreational AMs for snowy grouper. Given the revised 2-month fishing season, the current in-season closure and stock status-based post-season AM is removed. The revised recreational AM is a post-season AM that would be triggered in the following fishing year if the recreational ACL was exceeded in the previous year. If recreational landings exceed the recreational ACL, NMFS would reduce the length of the recreational fishing season in the following year by the amount necessary to prevent the recreational ACL from being exceeded. However, the length of the recreational season would not be reduced if NMFS determines, using the best scientific information available, that a reduction is not necessary.

This revised recreational AM will avoid an in-season closure of the recreational sector and extend maximum fishing opportunities to the sector during the 2-month recreational season. This final rule removes the current potential duplicate AM application of a reduction in the recreational season length and a payback of the recreational ACL overage if the total ACL was exceeded. In addition, under the revised recreational AM, the AM trigger is not tied to the total ACL, but only to the recreational ACL. This modification ensures that an ACL overage in the recreational sector does not in turn affect the catch levels for the commercial sector. Any reduced recreational season length as a result of the AM being implemented would apply to the recreational fishing season in the year following a recreational ACL overage.

In addition to the measures within this final rule, Amendment 51 revises the overfishing limit (OFL) for snowy grouper and sets the ACL equal to the ABC. The amendment also revises the annual OY and the sector allocations.

The current ABC for snowy grouper was approved in Regulatory Amendment 20, based upon the previous stock assessment (SEDAR 36) and recommendations from the Council's SSC.

Based on the SEDAR 36 Update, the Council's SSC recommended new OFL and ABC levels, with the ABC reduced from the OFL; the Council accepted the recommendations. The assessment and associated OFL and ABC levels for snowy grouper incorporated the revised estimates for recreational catch and effort from the MRIP-FES. The SSC and NMFS determined that the new OFL and ABC recommendations within Amendment 51 also represent the best scientific information available. The Council chose to express OY for snowy grouper on an annual basis and set it equal to the ABC and total ACL, in accordance with the guidance provided in the Magnuson-Stevens Act National Standard 1 Guidelines at 50 CFR 600.310(f)(4)(iv).

NMFS received comments from seven entities during the public comment periods for the notice of availability of Amendment 51 and the proposed rule. Six comment letters were in opposition to one or more actions within Amendment 51 or the proposed rule. One comment was outside the scope of this action and suggested that all marine life will soon be extinct if species continue to receive fishing pressure. NMFS did not respond to this comment. Comments specific to the actions in Amendment 51 and the proposed rule are grouped as appropriate and summarized below, each followed by NMFS' respective response. NMFS has not made any changes from the proposed rule to this final rule based on public comment.

Comment 1: The stock assessments are traditionally incorrect by underestimating the stock. The proposed reduction in the allowable snowy grouper catch limit and season are grossly restrictive. Based on observation in the Florida Keys area alone the population is thriving. The abundance of snowy grouper make catching other deep water species very difficult. The bottom line is that the assessment population data are flawed.

Response: NMFS disagrees that the stock assessment data for snowy grouper are flawed. The most recent SEDAR stock assessment for South Atlantic snowy grouper (SEDAR 36 Update) was completed in 2021 and included data through 2018. The findings of the assessment indicated that the South Atlantic snowy grouper stock remains overfished and is undergoing overfishing. Although NMFS recognizes that the abundance of snowy grouper varies across locations in the South Atlantic, snowy grouper is managed as a single stock in the South Atlantic, and the stock assessment, which used region-wide data, concluded that the overall stock is undergoing overfishing and is overfished. The Council's SSC and NMFS reviewed the stock assessment and determined that the SEDAR 36 Update is based on the best scientific information available. Following a notification from NMFS to a fishery management council that a stock is undergoing overfishing and is overfished, the Magnuson-Stevens Act requires the fishery management council to develop an FMP amendment with actions that immediately end overfishing and rebuild the affected stock. The Council and NMFS have determined that the actions in Amendment 51 would end overfishing of South Atlantic snowy grouper, continue to rebuild the stock, and achieve OY while minimizing, to the extent practicable, adverse social and economic effects.

Comment 2: NMFS' conversion of snowy grouper from pounds to numbers of fish to set the recreational sector ACL also assumes a low average weight of 8.93 lb (4.1 kg) per fish in gutted weight that is not supported by the record. Other evidence in the records shows an average weight closer to or above 10 lb (4.5 kg). Pictures posted by anglers on social media sites routinely show snowy grouper of 15 to 40 lb (6.8 to 18.1 kg). At such low levels of harvest, a 10 percent variation makes a big difference. If the average gutted weight was actually 10 lb (4.5 kg), then the recreational sector ACL should be 1,490 fish, not 1,668 fish.

Response: NMFS disagrees that a different average weight should be used for snowy grouper. To support using a higher weight, the commenter supplied pictures of recreationally caught snowy grouper posted on social media, and referenced higher average weights stated in Regulatory Amendment 20 to the FMP and a two-page document that sets forth different options to estimate the average weight for snowy grouper. The average weight used for snowy grouper in Amendment 51 is based on information in the SEDAR 36 Update, which was subject to a rigorous and independent scientific review. The total ACL is in pounds of fish, and recreational landings are reported in numbers of fish. To determine the recreational ACL, the pounds were converted to numbers of fish using an average weight of a snowy grouper. As explained in Amendment 51, an average weight of snowy grouper was determined from data used in the SEDAR 36 Update to be 8.93 lb, which was the average landed weight of snowy grouper from 2016 through 2018 as reported by recreational fishermen. NMFS acknowledges that different average weights for recreationally caught snowy grouper can vary using different methods or from other sources. However, NMFS determined that the SEDAR 36 Update, which used more recent data than what was used in support of Regulatory Amendment 20, and the 8.93-lb (4.1-kg) average weight for a snowy grouper in the recreational sector to be based on the best scientific information available.

Comment 3: The ACL for the recreational sector applies only to landings of snowy grouper and there is no limit on dead discards, dead discards are not tracked during the fishing season against a fixed limit, and there are no consequences if the recreational sector discards more fish than NMFS projects.

Response: Dead discards of snowy grouper were accounted for in establishing the recreational ACL for snowy grouper. Dead discards are fish that fishermen catch and then discard for various reasons, and that are dead or subsequently die soon after they are released. According to the SEDAR 36 Update, 95.4 percent of total removals of snowy grouper are landings and 4.6 percent are dead discards. The ABCs in Amendment 51 were derived from the SEDAR 36 Update, which accounted for dead discards and other sources of fish mortality. Since an ACL is directly calculated from an ABC, the recreational ACL for snowy grouper in Amendment 51 that was derived from the ABC did account for dead discards.

NMFS acknowledges that neither the recreational ACL nor the commercial ACL establish a limit on the amount of dead discards during a fishing season, and discards are not specifically tracked against a fixed limit during a fishing season for either the recreational sector or the commercial sector (see also the response to Comment 10 regarding bycatch of snowy grouper). Section 303(a)(15) of the Magnuson-Stevens Act requires the FMP to include ACLs and AMs, and the National Standard 1 Guidelines define catch as including both landed fish and dead discards (50 CFR 600.310(f)(1)(i)). However, the National Standard 1 Guidelines also state that the ABC, on which the ACLs are based, may be expressed in terms of landings as long as estimates of bycatch and any other fishing mortality not accounted for in the landings are incorporated into the determination of ABC (50 CFR 600.310(f)(3)(i)). As explained in Amendment 51, the ABC was calculated to account for dead discards. Thus, the recreational ACL for snowy grouper meets the requirements of the Magnuson-Stevens Act.

Comment 4: There is no way of tracking to determine if the recreational ACL has been met and no possible way for NMFS to ensure that an ACL of 1,668 fish will be reached. There are no mandatory reporting requirements for private recreational anglers, even though NMFS estimates that private anglers account for roughly 30 to 75 percent of all snowy grouper landings in recent years. Management uncertainty is extremely high in the recreational sector.

Response: NMFS disagrees that Amendment 51 supports the characterization that private anglers account for roughly 30 to 75 percent of all snowy grouper landings. The recreational sector is comprised of private fishermen and for-hire fishermen (charter vessels and headboats). Amendment 51 at Table 4.1.2.1 (page 61) shows the commercial, recreational, and total landings for South Atlantic snowy grouper for each fishing year from 2015 to 2019, with the 5-year average landings of 142,812 lb (64,778 kg) for the commercial sector and 39,807 lb (18,056 kg) for the recreational sector. In addition, prior to Amendment 51, the recreational sector was allocated 17 percent of the total ACL, and Table 3.2.2 in Amendment 51 (page 30) indicates that in 4 of the 5 years from 2015 to 2019, the recreational sector did not harvest all of its ACL.

NMFS disagrees than it cannot determine whether the snowy grouper recreational ACL was reached. Recreational landings information for the private and charter fishermen are collected through the MRIP-FES program. MRIP-FES consists of an intercept survey conducted at public marine fishing access points and a mail-based survey which estimates recreational shore and private boat fishing effort. Federally permitted vessels selected to participate in the Southeast Region Headboat Survey are required to submit a trip report for each trip. NMFS uses the best data available from the MRIP-FES and headboat survey to track recreational landings and compare them to the recreational ACL.

Using the best scientific information available, NMFS will determine whether the recreational ACL was met or exceeded, and whether the length of the next season needs to be reduced to prevent recreational landings from exceeding the recreational ACL, in accordance with the new recreational AM. NMFS, the SSC, and the Council have determined that Amendment 51 is consistent with the Magnuson-Stevens Act and its National Standards, and that the landings estimates from the MRIP-FES and headboat survey represent the best scientific information available. This determination is supported by an April 14, 2023, memorandum from the NMFS Southeast Fisheries Science Center as well as the recommendations from the Council's SSC.

Comment 5: Amendment 51 removes existing recreational AMs, replaces it with a defective AM, and fails to establish AMs to ensure the recreational ACL is not exceeded. Further, the proposed recreational AM does nothing to correct and mitigate overages if they occur, and does not consider a payback of the overage.

Response: NMFS acknowledges that the recreational AMs are revised but disagrees that the new AM is defective as set forth in the comment. The current recreational AMs are being modified in this rule in response to the reduction in both the recreational ACL and season length for snowy grouper in Amendment 51. As explained in the response to Comment 4, NMFS uses data from the MRIP-FES and headboat survey to track recreational landings and compare them to the recreational ACL. Retaining an in-season closure based on current recreational landings data is not practical for a recreational ACL of 1,668 fish (in 2023) and season length of 2 months, given the time delay between when recreational landings for species occur and when the information becomes available to management for in-season actions such as closures.

The final rule modifies the post-season recreational AM so that the reduction in fishing season length following an overage of the recreational ACL is not dependent on an exceedance of the total ACL and an overfished stock status. The new AM for the recreational sector will now be triggered when only the recreational ACL is exceeded, thereby ensuring that a recreational ACL overage does not also affect the ACL for the commercial sector. If recreational landings exceed the recreational ACL, and after an analysis and determination by NMFS that a reduction of the recreational ACL in the following year is necessary, NMFS will reduce the length of the recreational fishing season for the year following an ACL overage by the amount necessary to prevent the recreational ACL from being exceeded again.

In addition, this final rule removes the potential duplicate AM application of a reduction in the recreational season length and a reduction of the recreational ACL matching the amount of the ACL overage if the total ACL was exceeded. The Council considered this a potential “double penalty” for the recreational sector and did not consider both actions necessary following an overage of the total ACL.

Similar actions are being taken to modify recreational AMs in Amendments 50, 52, and 53 to the FMP, especially for species where the recreational ACL is relatively low and the recreational season length is short.

Comment 6: Reducing an already short season for snowy grouper would adversely affect recreational fishermen during the closed months while weather is generally favorable for bottom fishing. Snowy grouper provide a trophy to target, fine table fare, and a small reward to maintain angler interest.

Response: The current recreational fishing season is from May through August, and reducing the recreational fishing season from 4 to 2 months is needed to end overfishing, continue to rebuild the stock, and offer long-term social benefits. The Council considered multiple factors in recommending the preferred alternative for reducing the length of the snowy grouper recreational season, including the season length projections, economic concerns, and the potential changes in bycatch. The Council determined and NMFS agrees that it is important to provide recreational fishermen and for-hire fishing businesses with the longest season possible to harvest the recreational ACL, while preventing overages of the recreational ACL. Shortening the time that recreational fishing is allowed for snowy grouper in the South Atlantic contributes to ensuring that recreational catches do not exceed the recreational ACLs specified in this final rule. The 2-month season allows for retention of snowy grouper when recreational fishermen target co-occurring species, such as blueline tilefish, in some areas. In addition, disruptive weather events, such as hurricanes, occur with greater frequency during July and August than during May and June. Given the need to shorten the recreational season to end overfishing, having the revised recreational fishing season for snowy grouper earlier rather than later in the summer should allow for greater access to harvest snowy grouper. Finally, the new recreational season may provide additional biological benefits to spawning snowy grouper, as the season will now exclude July and August, which is part of the snowy grouper peak spawning season of May through August.

Comment 7: The 2-month recreational fishing season NMFS is proposing is also too long when compared to the recreational ACL as Amendment 51 shows that the recreational ACL would likely be met before the end of the season. For snowy grouper to be rebuilt, recreational seasons need to be shortened and accountability increased. It is irrational to propose keeping the season open an additional 17 days past when the analysis in Amendment 51 shows that the recreational ACL would be met (June 13).

Response: Amendment 51 contains two projections that estimate when the recreational ACL will be reached if the new recreational ACL and a 2-month fishing season are implemented. Using a 3-year average (2017 through 2019) of landings, the recreational ACL is not expected to be reached before the end of the fishing season. Using a 5-year average (2015 through 2019) of landings, landings are projected to reach the recreational ACL on June 13th. After reviewing the projection information and effects analysis, the Council chose a 2-month season for the reasons outlined in the response to Comment 6. If recreational landings exceed the recreational ACL, NMFS could shorten the following recreational season to avoid another exceedance of the ACL. NMFS has determined that the ACLs, AMs, and management measures for the recreational sector specified in Amendment 51 and this final rule will end overfishing, continue to rebuild the stock, and prevent and mitigate overages if they are to occur.

Comment 8: Amendment 51 conflicts with National Standard 8 as it will result in further declines in participation of the commercial fishing community (as shown by the reduced number of commercial permits) and not provide for sustained participation, will impose further hardship on the commercial sector by reducing the total ACL while failing to account for the sectors' respective contribution to the underlying problem, and will impose (not minimize) negative economic impacts on those communities. The commercial industry has suffered through 100-lb (45-kg) trip limits, while the recreational sector has been allowed to operate without changes.

Response: NMFS disagrees that Amendment 51 is inconsistent with the Magnuson-Stevens Act National Standard 8, which requires that conservation and management measures take into account the importance of fishery resources to fishing communities to provide for the sustained participation of those communities, and to the extent practicable, minimize adverse economic impacts on those communities. NMFS acknowledges that snowy grouper is predominantly harvested by the commercial sector, that the sector is supported by the associated fishing communities, and that commercial vessel permits issued for the snapper-grouper fishery have decreased over time. Following the results of the SEDAR 4 assessment for snowy grouper (2006), which indicated the stock was both overfished and experiencing overfishing, additional restrictions were implemented for both the commercial and recreational sectors to help end overfishing and rebuild the stock; those restrictions now include low commercial trip limits (currently 200 lb or 91 kg, last revised and increased in 2015) and low recreational bag limits (currently one snowy grouper per vessel, last revised and decreased in 2006). Section 1.7 in Amendment 51 provides further information on the history of management for the commercial and recreational harvest of snowy grouper. NMFS utilized the best scientific information available to describe affected fishing communities in Amendment 51 and evaluate the economic effects on the commercial sector, in general. Fishing communities that are associated with commercial and recreational fishing and can be identified as having some relationship with snowy grouper harvest are identified and discussed in section 3.4 of Amendment 51.

The snowy grouper stock in the South Atlantic is overfished and is subject to overfishing. Magnuson-Stevens Act National Standard 1 requires that conservation and management measures prevent overfishing, and National Standard 8 is also clear that those conservation and management measures take into account the importance of fishery resources to fishing communities “consistent with the conservation requirements of this Act (including the prevention of overfishing and rebuilding of overfished stocks) . . . .” 16 U.S.C. 1851(a)(8). Further, according to the National Standard 8 Guidelines at 50 CFR 600.345(b)(1), “[W]here two alternatives achieve similar conservation goals, the alternative that provides the greater potential for sustained participation of [fishing] communities and minimizes the adverse economic impacts on such communities would be the preferred alternative.”

The actions in Amendment 51 that directly affect the commercial sector and thus commercial fishing communities are revisions to the ABC, total ACL, and annual OY for snowy grouper, and revisions to the sector allocations and sector ACLs. The reductions in the ABC, ACL, and annual OY for snowy grouper are required by the need to end overfishing and rebuild the stock. The no-action alternatives in Amendment 51 would not have met these objectives. Of the other alternatives considered, the measures implemented in this final rule are expected to generate the least adverse economic effects on the commercial sector and thus on commercial fishing communities. Further, the commercial allocation is actually increased in Amendment 51. The analysis shows that this choice of allocation is expected to generate the least adverse economic effects on the commercial sector and thus on commercial fishing communities. Therefore, NMFS has determined that the measures in this final rule are expected to minimize adverse effects on commercial fishing communities, consistent with National Standard 8.

Comment 9: Amendment 51 harms consumers of snowy grouper. While commercial fishers may be able to adapt, the consumer has preferences for their favorite fish. Having to instead choose imported fish is not desired and the Council and NMFS need to ensure domestic access through commercial fishermen.

Response: NMFS acknowledges that some U.S. consumers may prefer locally-harvested South Atlantic groupers, and that a reduced supply of snowy grouper could result in a reduction in economic benefits for those consumers. Unfortunately, NMFS does not have estimates of price flexibility (how prices respond to changes in supply) or demand elasticity (how quantity demanded responds to changes in price) that are specific to South Atlantic snowy grouper or other comparable South Atlantic groupers, and therefore NMFS cannot project changes in prices or estimate changes in consumer surplus (economic benefits) associated with the new commercial ACL implemented by this final rule. There are, however, a number of consumer substitutes for South Atlantic snowy grouper, including other South Atlantic snapper-grouper species, snappers and groupers harvested from the Gulf of Mexico, and imports. The availability of these substitutes will likely minimize any effects on consumers that result from a change in the supply of South Atlantic snowy grouper. As previously discussed, although the commercial ACL is reduced, this final rule will increase the allocation for the commercial sector. Relative to the alternatives considered, this would generate the least adverse economic effects on the commercial sector and thus on seafood consumers.

Comment 10: Amendment 51 does not comply with National Standard 9 because the amendment fails to account for dead discards and will increase bycatch of snowy grouper by setting a recreational season shorter than the blueline tilefish season. The snowy grouper recreational season needs to be adjusted to align with blueline tilefish as these species regularly co-occur. Amendment 51 does nothing to minimize bycatch and will instead increase bycatch. The amendment fails to consider whether measures to minimize bycatch or bycatch mortality are possible such as multi-hook rigs when the daily bag limit is one snowy grouper per vessel.

Response: NMFS disagrees that Amendment 51 violates Magnuson-Stevens Act National Standard 9, and NMFS explained in the response to Comment 3 how Amendment 51 accounted for dead discards. National Standard 9 requires that conservation and management measures, “to the extent practicable: (1) minimize bycatch; and (2) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch.” 16 U.S.C. 1851(a)(9). NMFS has determined that Amendment 51 minimizes bycatch and bycatch mortality to the extent practicable. This determination is supported by a Bycatch Practicability Analysis for the actions in Amendment 51 (Appendix G to Amendment 51) that evaluated the practicability of taking additional action to minimize bycatch and bycatch mortality using the 10 factors provided in the National Standard 9 Guidelines at 50 CFR 600.350(d)(3)(i).

NMFS acknowledges that commercial and recreational discards of snowy grouper may increase as a result of reduced ACLs and shorter fishing seasons. Many of the 55 managed snapper-grouper species, such as snowy grouper and blueline tilefish, occur together in certain areas. Fishermen will often target a species where retention is allowed, and then must discard a species if the harvest is closed. As the final rule will decrease the commercial ACL and retain the current in-season closure when the ACL is reached or projected to be reached, the commercial season is likely to close earlier in the year after the new commercial ACL in the final rule is implemented (see Appendix F of Amendment 51 for a projection of the commercial season length). In turn, a longer closed season could increase discards of snowy grouper if fishermen are targeting species that co-occur with snowy grouper.

Similarly, recreational discards may increase with a lower recreational ACL and shorter season if fishermen target species that also occur with snowy grouper when harvest for snowy grouper is closed. However, any adverse effects are expected to be minor because discards comprise a relatively minor component of the over total mortality of snowy grouper. For example, snowy grouper and blueline tilefish occur together in some areas, and for the recreational sector, the current fishing seasons for both species are open from May through August. This final rule will reduce the recreational season for snowy grouper from 4 to 2 months. Amendment 52 to the FMP will reduce the bag limit and change the recreational accountability measures for blueline tilefish but will not change the 4-month season (88 FR 76696, November 7, 2023). NMFS acknowledges that fishermen will need to discard snowy grouper during the snowy grouper closure. Based on public input, snowy grouper discards are not expected to change north of Cape Hatteras, North Carolina, as the typical habitats where snowy grouper and blueline tilefish occur are more segregated.

Despite the possible change in discards, the reduction in ACLs and recreational fishing season are needed to end overfishing, continue to rebuild the stock, and offer long-term social benefits. The National Standard 9 Guidelines advise that conservation and management measures must also be consistent with all of the other national standards and maximization of net benefits to the Nation (50 CFR 600.350(d)(3)(i)). NMFS has determined that the actions in the final rule are required to prevent overfishing while achieving, on a continuing basis, the OY from the fishery (National Standard 1), set an ACL that does not exceed the ABC (National Standard 1), implement conservation and management measures based upon the best scientific information available (National Standard 2), and minimize adverse economic impacts on fishing communities (National Standard 8). See also the responses to Comments 6 and 7 for a discussion of the multiple factors that were considered when choosing the length of the snowy grouper recreational season, including the season length projections, economic concerns, and the expected or potential changes in bycatch.

Any change to snowy grouper discards from the actions in the final rule may not have a significant affect to the overall health of the stock. Dead discards comprise a minor component of the overall mortality of snowy grouper, with total removals of snowy grouper estimated to comprise on average 95.4 percent landings and 4.6 percent dead discards (SEDAR 36 Update). NMFS considered the actions and analyses in Amendment 51, and evaluated the practicability of taking additional action to minimize bycatch and bycatch mortality (50 CFR 600.350(d)(3)(i)). In summary, NMFS does not expect the actions in Amendment 51 to significantly contribute to or detract from the current level of bycatch in the snapper grouper fishery, as supported by the Bycatch Practicability Analysis for Amendment 51 (Appendix G).

NMFS has implemented other measures to reduce bycatch and bycatch mortality. For example, in implementing Regulatory Amendment 29 to the FMP on July 15, 2020, to reduce bycatch, NMFS required that a descending device be available and ready for use on all commercial, for-hire, and private recreational vessels while fishing for or possessing snapper-grouper species. To reduce fishing mortality, that final rule also required the use of non-offset non-stainless steel circle hooks when fishing for snapper-grouper species with hook-and-line gear and natural bait north of 28° N latitude. (85 FR 36166, June 15, 2020). The Council has also developed a Best Fishing Practices Outreach Campaign for commercial and recreational fishermen that includes education and outreach and the collection of discard information through their Citizen Science Program. The program involves fishermen and scientists working together to collect information that can be used for stock assessments and management.

Comment 11: NMFS' National Standard Guidelines recommend use of an annual catch target (ACT), or buffer below the ACL, to “account for management uncertainty in controlling the catch at or below the ACL.” Amendment 51 does not specify an ACT or buffer for the recreational sector despite massive, acknowledged management uncertainty.

Response: NMFS acknowledges that the Council did not consider a recreational ACT in Amendment 51. Recreational ACTs have not been used for management purposes under the FMP, and ACTs were recently eliminated through Amendment 49 to the FMP for all snapper-grouper species because management uncertainty is already accounted for when setting ACLs (88 FR 65819, September 26, 2023).

Comment 12: It is unfair to impose a rule that is effective May 1 through June 30 and the proposal was introduced on May 22, 2023. If the amendment is approved, it should be effective further in the future as to allow recreational fisherman time to catch snowy grouper.

Response: NMFS published the notice that announced the availability of Amendment 51 for public review and comment in the Federal Register on May 22, 2023 (88 FR 32717), and published the proposed rule for public review and comment on May 30, 2023 (88 FR 34460). Prior to these public comment periods, the actions in Amendment 51 were introduced and discussed during multiple public Council meetings that also had public comment periods. Amendment 51 was approved on August 17, 2023, and after this final rule to implement Amendment 51 publishes in the Federal Register , there will be a 30-day delay before the management measures in this rule become effective, consistent with the Administrative Procedure Act, as specified in the DATES section of this final rule.

Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with Amendment 51, the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

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

A final regulatory flexibility analysis (FRFA) was prepared. The FRFA incorporates the initial regulatory flexibility analysis (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. A copy of this analysis is available from NMFS (see ADDRESSES ). A summary of the FRFA follows.

The Magnuson-Stevens Act provides the statutory basis for this final rule. A description of this final rule, why it is being implemented, and the purpose of this final rule are contained in the SUMMARY and SUPPLEMENTARY INFORMATION sections of this final rule.

Public comments relating to socio-economic implications and potential impacts on small businesses are addressed in the responses to Comments 6, 8, and 9 in the Comments and Responses section of this final rule. No changes to this final rule were made in response to these public comments. No comments were received from the Office of Advocacy for the Small Business Administration.

This final rule will: (1) revise the snowy grouper total ACL, (2) revise the snowy grouper sector ACLs, (3) modify the snowy grouper recreational season, and (4) revise the recreational AMs for snowy grouper. The changes to the ACLs, as well as the sector allocations, would apply to all federally-permitted commercial vessels, federally-permitted charter vessels and headboats (for-hire vessels), and recreational anglers that fish for or harvest snowy grouper in Federal waters of the South Atlantic. The changes to the recreational season and AMs only apply to federally permitted owners and operators of for-hire vessels and recreational anglers. This final rule will not directly apply to federally-permitted dealers. Any change in the supply of snowy grouper available for purchase by dealers as a result of this final rule, and associated economic effects, would be an indirect effect of this rule and would therefore fall outside the scope of the Regulatory Flexibility Act (RFA).

Although all components of this final rule apply to for-hire vessels, they are not expected to have any direct effects on these entities. For-hire vessels sell fishing services to recreational anglers. The changes to the snowy grouper management measures will not directly alter the services sold by these vessels. Any change in demand for these fishing services, and associated economic effects, as a result of this final rule would be a consequence of a change in anglers' behavior, which would be secondary to any direct effect on anglers and, therefore, an indirect effect of this final rule. Based on the historically-minimal level of charter-mode target effort for snowy grouper in the South Atlantic, NMFS does not expect any change in for-hire trip demand to result from this final rule; however, should it occur, the associated indirect effects would fall outside the scope of the RFA. For-hire captains and crew are allowed to retain snowy grouper under the recreational bag limit; however, they cannot sell these fish. As such, for-hire captains and crew are only affected as recreational anglers. The RFA does not consider recreational anglers to be entities, so they are also outside the scope of this analysis (5 U.S.C. 604). Small entities include small businesses, small organizations, and small governmental jurisdictions (5 U.S.C. 601(6) and 601(3)-(5)). Recreational anglers are not businesses, organizations, or governmental jurisdictions. In summary, only the impacts on commercial vessels will be discussed.

As of August 26, 2021, there were 579 valid or renewable South Atlantic snapper-grouper commercial unlimited permits and 112 valid or renewable commercial 225-lb (102-kg) trip-limited snapper-grouper permits. On average from 2015 through 2019, there were 161 federally-permitted commercial vessels with reported landings of snowy grouper in the South Atlantic. For the 161 commercially permitted vessels, the average annual vessel-level gross revenue from all species for 2015 through 2019 was $82,475 (2021 dollars) and snowy grouper accounted for approximately 6.1 percent of this revenue. For commercial vessels that harvest snowy grouper in the South Atlantic, NMFS estimates that economic profits are $3,299 (2021 dollars) or approximately 4 percent of annual gross revenue, on average. The maximum annual revenue from all species reported by a single one of the vessels that harvested snowy grouper from 2015 through 2019 was $638,709 (2021 dollars).

For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (North American Industry Classification System code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. All of the commercial fishing businesses directly regulated by this final rule are believed to be small entities based on the NMFS size standard. No other small entities that are directly affected by this final rule have been identified.

This final rule will revise the total ACL for snowy grouper, based on the most recent ABC recommendation from the Council's SSC in response to the SEDAR 36 Update. This catch limit reflects a shift in recreational reporting units from the MRIP-CHTS to the MRIP-FES. The total ACL will be set equal to the ABC or 119,654 lb (54,274 kg) in 2023, 121,272 lb (55,008 kg) in 2024, and 122,889 lb (55,742 kg) in 2025 and subsequent years. Based on the current sector allocation percentages, these changes to the catch limits represent a decrease in the current commercial ACL for snowy grouper of 54,622 lb (24,776 kg) in 2023, 53,279 lb (24,167 kg) in 2024, and 51,937 lb (23,558 kg) in 2025 and subsequent years. However, as discussed below, this final rule will also modify the percentage of the total ACL that is allocated to the commercial sector and therefore economic effects to small entities are quantified as part of that discussion.

Amendment 51 will increase the commercial sector allocation from 83 percent of the total snowy grouper ACL to 87.55 percent. This, in conjunction with the changes to the total ACLs, results in a commercial ACL for snowy grouper of 104,757 lb (47,517 kg) in 2023 (73,330 lb [33,262 kg] in Season 1 and 31,427 lb [14,255 kg] in Season 2); 106,174 lb (48,160 kg) in 2024 (74,322 lb [33,712 kg] in Season 1 and 31,852 lb [14,448 kg] in Season 2); and 107,589 lb (48,802 kg) in 2025 and in subsequent years (75,312 lb [34,161 kg] in Season 1 and 32,277 lb [14,641 kg] in Season 2). Relative to the status quo commercial ACL of 153,935 lb (69,824 kg), this is a decrease of 49,178 lb (22,307 kg) in 2023; 47,761 lb (21,664 kg) in 2024; and 46,346 lb (21,022 kg) in 2025 and in subsequent years. These decreases in the commercial ACL are expected to result in corresponding decreases in aggregate ex-vessel revenue of $284,249 (2021 dollars) in 2023, $276,059 in 2024, and $267,880 in 2025 and subsequent years, noting that the 2023 ex-vessel revenue estimates are likely overstated given the expected implementation of this final rule later in this fishing year. Divided by the average number of vessels with reported landings of snowy grouper from 2015 through 2019, this translates to an annual loss in ex-vessel revenue that ranges from $1,664 (2021 dollars) to $1,766 per vessel, which is approximately 2 percent of average annual per vessel gross revenue. It is noted that snowy grouper makes up a relatively small portion of annual gross revenue for vessels that land the species (6.1 percent), and on trips where snowy grouper are harvested, it comprises less than a quarter of trip revenue, on average (2015 to 2019). Therefore, NMFS assumes snowy grouper is harvested as a secondary, if not incidental, species on trips targeting other species and that this final rule will not materially affect fishing behavior, effort, or operating costs. As a result, the estimated reduction in annual ex-vessel revenue due to less snowy grouper available for harvest is assumed to be a straight loss in annual economic profits of $1,664 (2021 dollars) to $1,766 per vessel (approximately 50 percent to 54 percent of average annual economic profits). Individual fishing businesses, however, may experience varying levels of economic effects, depending on their fishing practices, operating characteristics, and profit maximization strategies.

The following discussion describes the alternatives that were considered but not implemented in this final rule.

Three alternatives were considered for the action to set the ABC, total ACL, and annual OY equal to 119,654 lb (54,274 kg) in 2023, 121,272 lb (55,008 kg) in 2024, and 122,889 lb (55,742 kg) in 2025 and subsequent years. The first alternative to the action, the no action alternative, would maintain the current ABC, ACL, and annual OY of 185,464 lb (84,125 kg). Therefore, it would not be expected to change fishing practices or commercial harvests of snowy grouper, nor would it be expected to have resulting economic effects. This alternative was not selected by the Council because it would not end overfishing and it would be inconsistent with the SSC's latest catch limit recommendations and the transition to MRIP-FES, and therefore, would not be based on the best scientific information available.

The second alternative would set the ACL and annual OY for snowy grouper equal to 95 percent of the most recent ABC recommendation from the SSC. Under the second alternative, both the ACL and annual OY would be set to 113,671 lb (51,560 kg) in 2023, 115,208 lb (52,257 kg) in 2024, and 116,745 lb (52,955 kg) in 2025 and in subsequent years. Relative to the total ACLs set by this final rule and assuming no change to the current sector allocations, this alternative would reduce the commercial ACL and annual OY by an additional 5,983 lb (2,714 kg) in 2023, 6,064 lb (2,751 kg) in 2024, and 6,144 lb (2,787 kg) in 2025 and in subsequent years. These further reductions in the ACL would result in an estimated annual reduction in ex-vessel revenue and economic profits that is $34,582 (2021 dollars) to $35,512 ($215 to $221 per vessel) greater than what is expected under the total ACLs set by this final rule. The Council did not select the second alternative because they decided it would be less effective at achieving the objectives of the FMP and that the current monitoring mechanisms in the South Atlantic, coupled with the existing management measures, as well as those implemented by this final rule, would be sufficient at preventing overages, thus not requiring a buffer between the ABC and ACL.

The third alternative would set the ACL and annual OY for snowy grouper equal to 90 percent of the most recent ABC recommendation from the SSC. Under the third alternative, both the ACL and annual OY would be set to 107,689 lb (48,847 kg) in 2023, 109,145 lb (49,507 kg) 2024, and 110,600 lb (50,167 kg) in 2025 and subsequent years. Relative to the total ACLs set by this final rule and assuming no change to the current sector allocations, this alternative would reduce the commercial ACL and annual OY by an additional 11,965 lb (5,427 kg) in 2023, 12,127 lb (5,501 kg) in 2024, and 12,289 lb (5,574 kg) in 2025 and subsequent years. These further reductions in the ACL would result in an estimated annual reduction in ex-vessel revenue and economic profits that is $69,158 (2021 dollars) to $71,030 ($430 to $441 per vessel) greater than what is expected under the total ACLs set by this final rule. The Council did not select the third alternative because they decided it would be less effective at achieving the objectives of the FMP and that the current ACL monitoring mechanisms in the South Atlantic, coupled with the existing management measures, as well as those implemented by this final rule, would be sufficient at preventing overages, thus not requiring a buffer between the ABC and ACL.

Two alternatives were considered for the action to revise sector allocations and ACLs for snowy grouper. The first alternative to the action, the no action alternative, would retain the current commercial sector and recreational sector allocations as 83 percent and 17 percent, respectively, of the revised total ACL for snowy grouper. Based on the total ACLs set by this final rule of 119,654 lb (54,274 kg) in 2023, 121,272 lb (55,008 kg) in 2024, and 122,889 lb (55,742 kg) in 2025 and subsequent years, this alternative would result in a commercial ACL of 99,313 lb (45,048 kg) in 2023, 100,656 lb (45,657 kg) in 2024, and 101,998 lb (46,266 kg) in 2025 and subsequent years. Compared to the commercial sector allocation set by this final rule of 87.55 percent, this alternative would result in a commercial ACL that is 5,444 lb (2,469 kg) lower in 2023, 5,518 lb (2,503 kg) lower in 2024, and 5,591 lb (2,536 kg) lower in 2025 and subsequent years. This would translate to an additional aggregate annual loss in ex-vessel revenue and economic profits of $31,466 (2021 dollars) to $32,316 ($195 to $201 per vessel) relative to this final rule. The Council did not select the first alternative because the status quo sector allocation percentages are based on average landings from 1986 through 2005 in MRIP-CHTS units and therefore do not reflect the intent or results of the original allocation formula when applied to the new ACL based on MRIP-FES units. The terms “MRIP-CHTS units” and “MRIP-FES units” signify landings data that are in different scales and are not directly comparable.

The second alternative would allocate 73.36 percent of the revised total ACL for snowy grouper to the commercial sector and 26.64 percent of it to the recreational sector. Based on the total ACLs set by this final rule, this alternative would result in a commercial ACL of 87,778 lb (39,815 kg) in 2023, 88,965 lb (40,354 kg) in 2024, and 90,151 lb (40,892 kg) in 2025 and subsequent years. Compared to the commercial sector allocation set by this final rule of 87.55 percent, this alternative would result in a commercial ACL that is 16,979 lb (7,702 kg) lower in 2023, 17,209 lb (7,806 kg) lower in 2024, and 17,438 lb (7,910 kg) lower in 2025 and subsequent years. This would translate to an additional aggregate annual loss in ex-vessel revenue and economic profits of $98,139 (2021 dollars) to $100,792 ($610 to $626 per vessel) relative to this final rule. The Council did not select the second alternative because they decided that the method used to determine the current allocations (average landings from 1986 through 2005) was more appropriate than the allocations formula adopted through the 2012 Comprehensive ACL Amendment to the FMP for unassessed species (77 FR 15916, March 16, 2012). They also decided that the second alternative would be less effective at achieving the objectives of the FMP and satisfying the needs of the commercial sector, in particular.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, NMFS prepared a fishery bulletin, which also serves as a small entity compliance guide. Copies of this final rule are available from the Southeast Regional Office, and the guide, i.e., fishery bulletin, will be sent to all known industry contacts in the snapper-grouper fishery and be posted at https://www.fisheries.noaa.gov/tags/small-entity-compliance-guide?title=&field_species_vocab_target_id=&field_region_vocab_target_id%5B1000001121%5D=1000001121&sort_by=created. The guide and this final rule will be available upon request.

No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this final rule. This final rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

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