EPCA  1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317). Title III, Part B  2 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles. (42 U.S.C. 6291-6309) These products include GSLs, the subject of this document. (42 U.S.C. 6291(30)(BB))

On May 9, 2022, DOE published a final rule adopting revised definitions of GSL and GSIL and associated supplemental definitions. 87 FR 27461 (“May 2022 Definition Final Rule”). In the May 2022 Definition Final Rule, pursuant to its authority in 42 U.S.C. 6295(i)(6)(A)(i)(II), DOE removed from the definition of GSIL the exemptions for certain incandescent lamps that are used to satisfy lighting applications traditionally served by GSILs and included those lamps in the definition of GSIL and GSL. On that same day, DOE also published a final rule codifying the 45 lumens per watt (“lm/W”) statutory backstop requirement for GSLs pursuant to its authority in 42 U.S.C. 6295(i)(6)(A)(v). 87 FR 27439 (“May 2022 Backstop Final Rule”). The statutory backstop requirement prohibits the sale of any GSL that does not meet a minimum efficacy standard of 45 lm/W. 10 CFR 430.32(dd). In the May 2022 Backstop Final Rule, DOE determined the backstop requirement applies because DOE failed to complete a rulemaking for GSLs in accordance with certain statutory criteria in 42 U.S.C. 6295(i)(6)(A). 87 FR 27439.

The Administrative Procedure Act, 5 U.S.C. 551 et seq., provides, among other things, that “[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.” (5 U.S.C. 553(e)) DOE received a petition from Soft Lights on December 24, 2022 requesting that, DOE repeal the May 2022 Definition Final Rule and the May 2022 Backstop Final Rule (hereafter referred to as the “Soft Lights Petition”). In its petition, Soft Lights asserts that the purpose of a GSL is to provide safe, uniform illumination with light that disperses over distance following the inverse square law and that the May 2022 Backstop Final Rule sets a 45 lm/W minimum requirement for GSLs without setting quality metrics for the lamps. Further, Soft Lights contends that the May 2022 Definition Final Rule classifies light-emitting diodes (“LED”) lamps as a GSL even though LED lamps do not provide uniform illumination, do not emit light that disperses following the inverse square law, and are not regulated with regards to comfort, health or safety by the U.S. Food and Drug Administration (“FDA”). Soft Lights states in its petition that due to the failure of the May 2022 Backstop Final Rule and May 2022 Definition Final Rule to ensure uniform illumination, inverse square law dispersion, and the protection of the public health and welfare, these two rules must be repealed. (Soft Lights Petition, No. 1 at pp. 1-2) Further, Soft Lights argues that the term “energy efficiency” as defined by EPCA means providing the same quality of service using less energy and if a statute or rule fails to ensure this, it must be rejected as invalid. Soft Lights also contends that an energy efficiency statute that fails to consider the impacts on human health/public health must be rejected as illegitimate. (Soft Lights Petition, No. 1 at pp. 3, 4)

After carefully considering Soft Light's petition, DOE has determined that granting Soft Light's request to withdraw the May 2022 Backstop and Definition Final Rules would be inconsistent with statutory law. In its petition, Soft Lights states that Congress was misinformed about the technical nature of LEDs and made the error of including LEDs in the definition of GSL in EPCA. (Soft Lights Petition, No. 1 at pp. 7-8) Soft Lights further asserts that the 45 lm/W backstop requirement is based on Congress's flawed understanding of how LEDs emit light and the invalid assignment of LEDs to the GSL classification. (Soft Lights Petition, No. 1 at p. 9) However, the inclusion of general service LED lamps as GSLs and the 45 lm/W backstop requirement for GSLs are prescribed by statute, and DOE does not have the authority to overturn statutory requirements enacted by Congress. (42 U.S.C. 6291(30)(BB); 42 U.S.C. 6295(i)(6)(A)(v)) Further, DOE declines to comment on Soft Light's assertion that the FDA has failed to publish comfort, health or safety regulations for LEDs. These arguments are not for consideration by DOE. DOE is not aware of any prohibition on the use of LED lighting that would have impacted its rulemakings. DOE further discusses its reasons for denying the Soft Lights petition in the following discussion.

In its petition, Soft Lights asserts that the May 2022 Definition Final Rule incorrectly classifies LED lamps as GSLs. (Soft Lights Petition, No. 1 at pp. 1-2) It also asserts that, in the Energy Independence and Security Act of 2007 (Pub. L. 110-140) (“EISA”), Congress made the error of including the term “general service light-emitting diode” in the statute without defining the device itself, and then further erred by classifying the device as a GSL. Specifically, Soft Lights states that both DOE and Congress are under the mistaken belief that LEDs emit uniform luminance and visible radiation that disperses following an inverse square law and are a replacement for an incandescent lamp. Soft Lights further contends that, due to this mistaken belief, DOE has gone back and forth on its understanding of what can be classified as a general service lamp in its rulemakings to revise the GSL and GSIL definitions. (Soft Lights Petition, No. 1 at pp. 7-8, 11,12)

Contrary to Soft Lights assertion, DOE's withdrawal rulemakings regarding the definition of GSL were not due to DOE's misunderstanding of whether an LED can be classified as a GSL. Rather, DOE's change in position related to its interpretation of whether it could include categories of lamps in the definition of GSL that would otherwise be excluded under 42 U.S.C. 6291(30)(BB)(ii). Amendments to EPCA in EISA directed DOE to conduct two rulemaking cycles to evaluate energy conservation standards for GSLs, and, among other things, determine whether the exemptions for certain incandescent lamps should be maintained or discontinued. (42 U.S.C. 6295(i)(6)(A)-(B)) Pursuant to this authority, DOE conducted a rulemaking to establish revised regulatory definitions for GSLs and GSILs. See 82 FR 7276 (Jan. 19, 2017); 82 FR 7322 (Jan. 19, 2017). Subsequently, DOE conducted a rulemaking in which it withdrew these revised definitions before they took effect. 84 FR 46661 (Sept. 5, 2019, “September 2019 Withdrawal Rule”). Upon further review and consideration, DOE adopted the revised definitions of GSL and GSIL in the May 2022 Definition Final Rule. In that final rule, DOE explained that EPCA directs DOE to amend the statutory definitions of GSL and GSIL by regulation to achieve the energy savings for general lighting that Congress intended in EPCA generally and EISA specifically. (42 U.S.C. 6295(i)(6)(A)(i)(II) and 42 U.S.C. 6291(30)(BB)(i)(IV); 87 FR 27461, 27466) By withdrawing the expanded definitions of GSL and GSIL in the September 2019 Withdrawal Rule, DOE failed to give meaningful effect to this statutory direction. 87 FR 27461, 27466. Therefore, DOE's withdrawal rulemakings regarding the definition of GSLs were based on a misreading of EPCA's statutory direction and not a question of whether an LED lamp should be classified as a GSL.

In fact, the amendments DOE adopted in the May 2022 Definition Final Rule do not classify general service LED lamps as GSLs. Rather, Congress classified LEDs as GSLs previously through EISA, which amended EPCA to define the term “general service lamp” and specified it to include “general service light-emitting diode (LED or OLED) lamps.” (42 U.S.C. 6291(30)(BB), Title III, Subtitle B, Section 321 of EISA) A final rule technical amendment published on March 23, 2009, incorporated into DOE's regulations EPCA's definition of “general service lamp,” providing that it includes general service incandescent lamps, compact fluorescent lamps, general service light-emitting diode lamps, organic light-emitting diode lamps, and any other lamps that the Secretary determines are used to satisfy lighting applications traditionally served by general service incandescent lamps; however, the definition didn't apply to any lighting application or bulb shape excluded from the “general service incandescent lamp” definition, or any general service fluorescent lamp or incandescent reflector lamp. 74 FR 12058, 12065.

The amendments adopted in the May 2022 Definition Final Rule made no changes to the statutory inclusion of general service light-emitting diode lamps and organic light-emitting diode lamps as GSLs and the repeal of this rule would not remove the statutory inclusion of LED lamps as a type of GSL. 87 27461, 27480-27481; 10 CFR 430.2. Further, the language in EPCA is clear that Congress intended general service light-emitting diode (LED or OLED) lamps to be included in the definition of “general service lamp.” (42 U.S.C. 6291(30)(BB)(i))

Soft Lights asserts in its petition that DOE went back and forth on its decision on whether the 45 lm/W backstop requirement was triggered because of Congress' flawed understanding of how LEDs emit light and Congress' error in including the term “general service light emitting diode” as a GSL. (Soft Lights Petition, No. 1 at p. 11) Further, Soft Lights contends that there is no technology that meets Congress' criteria of a GSL that provides the same quality of service as an incandescent with 45 lm/W efficacy and therefore, DOE is not obligated to, nor can it implement the 45 lm/W backstop requirement. (Soft Lights Petition, No. 1 at p. 9) Specifically, Soft Lights argues that LED technology does not meet the necessary criteria, stating that LEDs emit a non-uniform luminance and have blue wavelength and flicker that are harmful to human health. (Soft Lights Petition, No. 1 at pp. 16-24) Soft Lights contends that to set energy efficiency standards DOE must include light quality metrics paired with luminous efficacy, citing uniform illumination, inverse square law dispersion, a smooth continuous spectral distribution from low blue to high red, and analog flicker characteristics. (Soft Lights Petition, No. 1 at p. 16) Soft Lights also argues that the 45 lm/W backstop requirement will force manufacturers to produce LED lamps, even though the FDA has not stated LED visible radiation is safe and has not published comfort, health, or safety regulations for LED products. (Soft Lights Petition, No. 1 at p. 3)

EPCA directs DOE to conduct two rulemaking cycles to evaluate energy conservation standards for GSLs. (42 U.S.C. 6295(i)(6)(A)-(B)) For the first rulemaking cycle, EPCA directs DOE to initiate a rulemaking process prior to January 1, 2014, to determine whether: (1) To amend energy conservation standards for GSLs and (2) the exemptions for certain incandescent lamps should be maintained or discontinued. (42 U.S.C. 6295(i)(6)(A)(i)) The rulemaking is not limited to incandescent lamp technologies and must include a consideration of a minimum standard of 45 lm/W for GSLs. (42 U.S.C. 6295(i)(6)(A)(ii)) EPCA provides that if the Secretary determines that the standards in effect for GSILs should be amended, a final rule must be published by January 1, 2017, with a compliance date at least 3 years after the date on which the final rule is published. (42 U.S.C. 6295(i)(6)(A)(iii)) The Secretary must also consider phased-in effective dates after considering certain manufacturer and retailer impacts. (42 U.S.C. 6295(i)(6)(A)(iv)) If DOE fails to complete a rulemaking in accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv), or if a final rule from the first rulemaking cycle does not produce savings greater than or equal to the savings from a minimum efficacy standard of 45 lm/W, the statute provides a “backstop” under which DOE must prohibit sales of GSLs that do not meet a minimum 45 lm/W standard. (42 U.S.C. 6295(i)(6)(A)(v)) As a result of DOE's failure to complete a rulemaking in accordance with the statutory criteria in 42 U.S.C. 6295(i)(6)(A), DOE codified the backstop requirement in the May 2022 Backstop Final Rule. (87 FR 27439, 27442-27443)

As explained in the May 2022 Backstop Final Rule, DOE was delayed in certifying the backstop requirement for GSLs by two years due to its evolving position under the first cycle of GSL rulemaking under 42 U.S.C. 6295(i)(6)(A). This related to DOE's changing interpretation of whether the statutory backstop had been triggered and, contrary to Soft Lights assertion, had no bearing on whether LEDs were properly classified as GSLs under EPCA. As previously stated, the inclusion of LEDs in the definition of GSL is a clear statutory requirement that is not subject to agency discretion. Further, the 45 lm/W backstop requirement is not technology specific, and DOE is not banning incandescent technology. Thus, while Soft Lights is correct that there are currently no GSILS on the market that can meet the 45 lm/W requirement, this does not foreclose an incandescent from being invented, and sold, in the future that could meet the 45 lm/W requirement. Lastly, even if the 45 lm/W backstop had not been triggered, the rulemaking that DOE was required to undertake in 42 U.S.C. 6295(i)(6)(A)(i) was to consider standards for GSLs. Congress had already defined GSLs in EPCA as including LEDs and directed that the rulemaking “shall not be limited to incandescent lamp technologies.” (42 U.S.C. 6295(i)(6)(A)(ii)(I)) Thus, DOE had existing statutory authority, aside from the backstop requirement, to establish energy conservation standards for GSLs, which, by statute, include LEDs.

In its petition, Soft Lights asserts that DOE's review of the health effects of LED lamps was inadequate and negligent. Further, Soft Lights contends that the FDA has sole authority to regulate visible radiation from electronic products and DOE was negligent in mandating the 45 lm/W backstop requirement for GSLs without ensuring that the FDA publishes comfort, health, and safety regulations for LED products. (Soft Lights Petition, No. 1 at p. 2-3, 13, 28) Soft Lights contends that LED lamps pose a danger to public health and LED visible radiation causes serious adverse health effects and creates discriminatory barriers. (Soft Lights Petition, No. 1 at p. 41)

DOE notes that the FDA has authority to regulate certain aspects of LED products as radiation-emitting devices and has issued performance standards for certain types of light-emitting products. 3 Currently, there is no FDA performance standard for LED products in part 1040. DOE acknowledges that Soft Lights expresses in its petition health concerns that Soft Lights associates with LEDs. However, such concerns are not for the consideration of DOE. DOE is not currently aware, nor was it at the time the May 2022 Definition and Backstop Final Rules were issued, of any prohibition on the use of LED lighting that would have impacted its rulemaking.

Taking into account all of the factors discussed previously and consistent with the requirements under EPCA, DOE is hereby denying Soft Light's petition for rulemaking.

The Secretary of Energy has approved publication of this final denial of petition for repeal.

This document of the Department of Energy was signed on March 14, 2023, by Francisco Alejandro Moreno, Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

This action amends SFAR No. 112, title 14 Code of Federal Regulations (CFR), 91.1603, which currently prohibits certain U.S. civil flight operations in the Tripoli FIR (HLLL)  1 by all: U.S. air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except when the operator of such aircraft is a foreign air carrier. This final rule contains modifications to reflect changed conditions in the Tripoli FIR (HLLL) and the associated risks to U.S. civil aviation safety. Specifically, with this final rule, the FAA removes the prohibition against U.S. civil aviation operations at altitudes below Flight Level (FL) 300 in those portions of the Tripoli FIR (HLLL) that are outside the territory and airspace of Libya. However, the FAA continues to prohibit U.S. civil aviation operations at all altitudes in the territory and airspace of Libya due to the significant, continuing unacceptable risks to the safety of such operations from various armed groups' access to advanced anti-aircraft weapon systems, airspace de-confliction challenges, and ongoing, intermittent violence in Libya.

The FAA also extends the expiration date of this Special Federal Aviation Regulation (SFAR) from March 20, 2023 until March 20, 2025. Consistent with other recently published flight prohibition SFARs, this action also republishes the approval process and exemption information for this flight prohibition SFAR.

The FAA is responsible for the safety of flight in the U.S. and for the safety of U.S. civil operators, U.S.-registered civil aircraft, and U.S.-certificated airmen throughout the world. Sections 106(f) and (g) of title 49, U.S. Code (U.S.C.), subtitle I, establish the FAA Administrator's authority to issue rules on aviation safety. Subtitle VII of title 49, Aviation Programs, describes in more detail the scope of the agency's authority. Section 40101(d)(1) provides that the Administrator shall consider in the public interest, among other matters, assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce. Section 40105(b)(1)(A) requires the Administrator to exercise this authority consistently with the obligations of the U.S. Government under international agreements.

The FAA is promulgating this rule under the authority described in 49 U.S.C. 44701, General requirements. Under that section, the FAA is charged broadly with promoting safe flight of civil aircraft in air commerce by prescribing, among other things, regulations and minimum standards for practices, methods, and procedures that the Administrator finds necessary for safety in air commerce and national security.

This regulation is within the scope of the FAA's authority because it continues to prohibit the persons described in paragraph (a) of SFAR No. 112, 14 CFR 91.1603, from conducting flight operations in the territory and airspace of Libya due to the continuing hazards to the safety of U.S. civil flight operations, as described in the preamble to this final rule.

Section 553(b)(B) of title 5, U.S. Code, 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.” Also, section 553(d) permits agencies, upon a finding of good cause, to issue rules with an effective date less than 30 days from the date of publication. In this instance, the FAA finds good cause to forgo notice and comment and the delayed effective date because they would be impracticable, unnecessary, and contrary to the public interest.

Providing notice and the opportunity for the public to comment here would be contrary to the public interest. The FAA's flight prohibitions, and any amendments thereto, need to include appropriate boundaries that reflect the agency's current understanding of the risk environment for U.S. civil aviation. This allows the FAA to protect the safety of U.S. operators' aircraft and the lives of their passengers and crews without over-restricting or under-restricting U.S. operators' routing options. However, the risk environment for U.S. civil aviation in airspace managed by other countries with respect to safety of flight is fluid in circumstances involving fighting, extremist and militant activity, or periods of heightened tensions, particularly where weapons capable of targeting or otherwise negatively affecting U.S. civil aviation are or may be present. This fluidity, and the potential for rapid changes in the risks to U.S. civil aviation, significantly limits how far in advance of a new or amended flight prohibition the FAA can usefully assess the risk environment. The delay that would be occasioned by providing an opportunity to comment on this action would significantly increase the risk that the resulting final action would not accurately reflect the current risks to U.S. civil aviation associated with the situation and thus would not establish boundaries for the flight prohibition commensurate with those risks.

While the FAA sought and responded to public comments, the boundaries of the area in which unacceptable risks to the safety of U.S. civil aviation existed might change due to: evolving military or political circumstances; extremist and militant group activity; the introduction, removal, or repositioning of more advanced anti-aircraft weapon systems; or other factors. As a result, if the situation improved while the FAA sought and responded to public comments, the rule the FAA finalized might be over-restrictive, unnecessarily limiting U.S. operators' routing options and potentially causing them to incur unnecessary additional fuel and operations-related costs, as well as potentially causing passengers to incur unnecessarily some costs attributed to their time. Conversely, if the situation deteriorated while the FAA sought and responded to public comments, the rule the FAA finalized might be under-restrictive, allowing U.S. civil aviation to continue operating in areas where unacceptable risks to their safety had developed. Such an outcome would endanger the safety of these aircraft, as well as their passengers and crews, exposing them to unacceptable risks of death, injury, and property damage that could occur if a U.S. operator's aircraft were shot down (or otherwise damaged) while operating in the territory and airspace of Libya.

Alternatively, if the FAA made changes to the area in which U.S. civil aviation operations would be prohibited between a notice of proposed rulemaking and a final rule due to changed conditions, the version of the rule the public commented on would no longer reflect the FAA's current assessment of the risk environment for U.S. civil aviation. In addition, some or all of the rationale for such changes during the course of the rulemaking might be based upon classified information or controlled unclassified information not authorized for public release. The FAA's ability to notify the public of its reasoning and respond to comments would necessarily be limited—thus rendering such proceedings impracticable, unnecessary, and contrary to the public interest.

Therefore, providing notice and the opportunity for comment would be contrary to the public interest, as it would hinder FAA's ability to maintain appropriate flight prohibitions based on up-to-date risk assessments of the risks to the safety of U.S. civil aviation operations in airspace managed by other countries.

For the same reasons discussed above, the potential safety impacts and the need for prompt action on up-to-date information that is not public would make delaying the effective date impracticable and contrary to the public interest. For altitudes at or below FL300 in those portions of the Tripoli FIR (HLLL) that are outside the territory and airspace of Libya, any delay in the effective date of the rule would continue a prohibition on U.S. civil aviation operations at those altitudes that the FAA has determined is no longer needed for the safety of U.S. civil aviation and would thus unnecessarily restrict U.S. operators' routing options at those altitudes.

Accordingly, the FAA finds good cause exists to forgo notice and comment and any delay in the effective date for this rule.

On July 27, 2020, the FAA published a final rule in the Federal Register prohibiting U.S. civil flight operations in the entirety of the territory and airspace of Libya. That rule also prohibited U.S. civil flight operations in those portions of the Tripoli FIR (HLLL) outside the territory and airspace of Libya at altitudes below FL300. 2 The FAA assessed the area of unacceptable inadvertent risk to U.S. civil aviation operations at all altitudes had spread to the entire territory and airspace of Libya. This spread was due to the geographic expansion of the ongoing conflict between the Tripoli-based Government of National Accord (GNA) and the Tobruk-based Libyan National Army (LNA) for control over Libya's government, territory, and resources.

Foreign state actors continued to provide material and technical assistance to both the GNA and the LNA. This support involved third party forces, as well as the deployment of advanced weapons, including advanced fighter aircraft, weaponized unmanned aircraft systems (UAS), surface-to-air missile (SAM) systems, and, likely, jammers. Both sides had conducted air strikes, utilizing tactical combat aircraft and long-range, armed UAS, to target airport infrastructure and aircraft on the ground at airports. In May 2020, Russia deployed multiple fighter aircraft to Libya to provide close air support to its private military contractors and the LNA and protect their operations from attacks by manned aircraft and weaponized UAS. The foreign states supporting the LNA and GNA also deployed anti-aircraft weapons and self-protection jamming systems to mitigate the air threat. The combination of these activities posed airspace de-confliction concerns and an inadvertent risk of in-flight engagement of civil aircraft as a result of possible misidentification or miscalculation.

More advanced, higher-altitude air defense systems had also been deployed to Libya. In addition to an SA-22 SAM system, a foreign sponsor associated with the GNA had reportedly deployed multiple variants of anti-aircraft weapons to provide a layered air defense in Tripoli. This deployment included a medium range I-Hawk SAM and a Korkut 35mm air defense gun.

The activities of the GNA and the LNA also presented risks to U.S. civil aviation in the territory and airspace of Libya. Both the GNA and the LNA possessed anti-aircraft artillery and MANPADS, some of which have a maximum altitude of up to 25,000 feet (7,620 meters). As a result of weapons activity posing a risk to civil aviation, the GNA closed Mitiga International Airport (HLLM) on multiple occasions during January and February 2020. LNA leader General Haftar announced on January 23, 2020, that LNA forces would engage any military or civil aircraft operating from Mitiga International Airport (HLLM). The FAA was also concerned the GNA and the LNA might augment their air defense operations with increased Global Positioning System (GPS) and radio frequency jamming.

Collectively, the FAA assessed that the escalating fighting, increased foreign intervention, and deployment of additional air defense capabilities presented an increasing risk to U.S. civil aviation operations in the territory and airspace of Libya at all altitudes. For these reasons, the July 27, 2020 final rule incorporated the flight prohibition on U.S civil aviation operations in the territory and airspace of Libya at all altitudes, previously contained in NOTAM KICZ A0026/19, into SFAR No. 112, § 91.1603.

In addition, the FAA assessed that the hazards to the safety of U.S. civil aviation operations at altitudes below FL 300 described in the preamble to the March 2019 final rule remained of concern in those portions of the Tripoli FIR (HLLL) that are outside the territory and airspace of Libya. 3 The FAA noted that foreign military manned and unmanned tactical aircraft might operate or approach targets from off the northern coast, presenting airspace de-confliction challenges at altitudes below FL300. Additionally, there was the potential for GPS interference bleed over that might impact flights operating over the southern Mediterranean Sea in the Tripoli FIR (HLLL). For these reasons, the July 27, 2020 final rule also continued the prohibition against all flights by U.S. civil operators and airmen at altitudes below FL300 in those portions of the Tripoli FIR (HLLL) outside the territory and airspace of Libya. 4

As a part of this technical amendment, the FDA Center for Devices and Radiological Health (CDRH) is making changes to 21 CFR parts 10, 803, 812, and 822 to revise contact addresses, correct docket numbers, and conform the regulatory provisions to the FD&C Act to ensure accuracy and clarity in the Agency's medical device regulations. The changes published in this notice are non-substantive and editorial in nature.

The regulation, 21 CFR 10.80(h), is being revised to make a non-substantive editorial change to update a citation that was moved from title 42 to title 21. In § 803.19(b), we are removing the address and replacing it with a website link. We are correcting the docket number in the regulations §§ 812.38 and 812.47 with the docket number specified in the codified of this rulemaking. For §§ 822.1 and 822.4, we are adding the criterion from section 522(a)(1)(A)(ii) of the FD&C Act (21 U.S.C. 360l(a)(1)(A)(ii)) to these provisions for consistency with the statutory language. Similarly, we are amending § 822.24 for consistency with section 522(b)(1) of the FD&C Act. We are amending § 822.7(a)(1) by removing the name of an office that is now obsolete due to CDRH's reorganization. The rule does not impose any new regulatory requirements on affected parties. The amendments are editorial in nature and should not be construed as modifying any substantive standards or requirements.

Publication of this document constitutes final action under the Administrative Procedure Act (APA) (5 U.S.C. 553). The APA generally exempts “rules of agency organization, procedure, or practice” from the requirements of notice and comment rulemaking (5 U.S.C. 553(b)(A)). Rules are also generally exempt from such requirements when an agency “for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest” (5 U.S.C. 553(b)(B)).

FDA has determined that this rulemaking meets the APA's notice and comment exemption requirements. The revisions in this rule make technical or non-substantive changes. Some of these revisions pertain to the CDRH reorganization, and constitute “rules of agency organization, procedure, or practice” not subject to the requirements of notice and comment under 5 U.S.C. 553(b)(A). The balance of these revisions updates the omitted language from the statute or the citation and docket number. Such technical, non-substantive changes are “a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.” Mack Trucks, Inc. v. EPA, 682 F.3d 87, 94 (D.C. Cir. 2012) (quotation marks and citation omitted). FDA accordingly for good cause finds that notice and public procedure thereon are unnecessary for these amendments.

The APA allows an effective date less than 30 days after publication as “provided by the agency for good cause found and published with the rule” (5 U.S.C. 553(d)(3)). An effective date 30 or more days from the date of publication is unnecessary in this case because the amendments do not impose any new regulatory requirements on affected parties, and affected parties do not need time to “adjust to the new regulation” before the rule takes effect. Am. Federation of Government Emp., AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981). Therefore, FDA finds good cause for the amendments to become effective on the date of publication of this action.

Therefore, under the Federal Food, Drug, and Cosmetic Act, and under the authority delegated to the Commissioner of Food and Drugs, 21 CFR parts 10, 803, 812, and 822 are amended as follows:

In order to improve the effectiveness of CMPs and to maintain their deterrent effect, the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note (“the Inflation Adjustment Act”), as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74) (“the 2015 Act”), requires Federal agencies to adjust each CMP provided by law within the jurisdiction of the agency. The 2015 Act requires agencies to adjust the level of CMPs with an initial “catch-up” adjustment through an interim final rulemaking and to make subsequent annual adjustments for inflation, without needing to provide notice and the opportunity for public comment required by 5 U.S.C. 553. This rule constitutes the Department's 2022 and 2023 annual adjustment. The 2015 Act provides that any increase in a CMP shall apply to CMPs that are assessed after the date the increase takes effect, regardless of whether the underlying violation predated such increase. 1

The method of calculating CMP adjustments applied in this final rule is required by the 2015 Act. Under the 2015 Act and the Office of Management and Budget guidance required by the 2015 Act, annual inflation adjustments subsequent to the initial catch-up adjustment are to be based on the percent change between the Consumer Price Index for all Urban Consumers (“CPI-U”) for the October preceding the date of the adjustment and the prior year's October CPI-U. As set forth in Office of Management and Budget (OMB) Memorandum M-22-07 of December 15, 2021, the adjustment multiplier for 2022 is 1.06222. Additionally, as set forth in OMB Memorandum M-23-05 of December 15, 2022, the adjustment multiplier for 2023 is 1.07745. In order to complete the 2022 and 2023 annual adjustments, each current CMP is multiplied by the 2022 and 2023 adjustment multipliers. Under the 2015 Act, any increase in CMP must be rounded to the nearest multiple of $1.

With regard to the CMPs assessed under 31 U.S.C. 3802(a), the penalty assessment for 2021 ($8,212) is multiplied by 1.06222, resulting in a penalty of $8,723 for 2022. Multiplying $8,723 by 1. 07745 results in a penalty of $9,399 for 2023.

With regard to the CMPs assessed under 31 U.S.C. 333(c), the first penalty under this section was adjusted to $8,212 in 2021. This amount is multiplied by 1.06222, resulting in a penalty of $8,723 for 2022. Multiplying $8,723 by 1. 07745 results in a penalty of $9,399 for 2023. The second penalty under this section was adjusted to $41,056 in 2021. Multiplying this amount by 1.06222 results in a penalty of $43,611 for 2022. Multiplying $43,611 by 1.07745 results in a penalty of $46,989 for 2023.

Finally, with regard to the CMP assessed under Section 104 of Title I, Public Law 107-297, as amended, the penalty assessment for 2021 ($1,436,220) is multiplied by 1.06222, resulting in a penalty of $1,525,582 for 2022. Multiplying $1,525,582 by 1.07745 results in a penalty of $1,643,738 for 2023.

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Section 701(b)) requires agencies to make annual adjustments for inflation to CMPs, without needing to provide notice and the opportunity for public comment and a delayed effective date required by 5 U.S.C. 553. Additionally, the methodology used for adjusting CMPs for inflation is provided by statute, with no discretion provided to agencies regarding the substance of the adjustments for inflation to CMPs. The Department is charged only with performing ministerial computations to determine the dollar amount of adjustments for inflation to CMPs. Accordingly, prior public notice, an opportunity for public comment, and a delayed effective date are not required for this rule.

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply.

This rule is not a significant regulatory action as defined in section 3.f of Executive Order 12866.

The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this rule because there are no new or revised recordkeeping or reporting requirements.

For the reasons set forth in the preamble, parts 16, 27, and 50 of title 31 of the Code of Federal Regulations are amended as follows:

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

On April 15, 2021, the President, invoking the authority of, inter alia, the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq. ) (IEEPA), issued Executive Order (E.O.) 14024 (86 FR 20249, April 19, 2022). Among other prohibitions, section 1(a)(i) of E.O. 14024 blocks, with certain exceptions, all property and interests in property that are in the United States, that come within the United States, or that are or come within the possession or control of any U.S. person of any person determined by the Secretary of the Treasury, in consultation with the Secretary of State, or by the Secretary of State, in consultation with the Secretary of the Treasury, to operate or have operated in the technology sector or the defense and related material sector of the Russian Federation economy, or any other sector of the Russian Federation economy as may be determined by the Secretary of the Treasury, in consultation with the Secretary of State. On February 24, 2023, pursuant to delegated authority, the Director of OFAC, in consultation with the Department of State, determined that the prohibitions in section 1(a)(i) of E.O. 14024 shall apply to the metals and mining sector of the Russian Federation economy.

The determination took effect on February 24, 2023. The text of the determination is below.

Section 1(a)(i) of Executive Order (E.O.) 14024 of April 15, 2021 (“Blocking Property With Respect To Specified Harmful Foreign Activities of the Government of the Russian Federation”) imposes economic sanctions on any person determined by the Secretary of the Treasury, in consultation with the Secretary of State, or the Secretary of State, in consultation with the Secretary of the Treasury, to operate or have operated in such sectors of the Russian Federation economy as may be determined by the Secretary of the Treasury, in consultation with the Secretary of State.

To further address the unusual and extraordinary threat to the national security, foreign policy, and economy of the United States described in E.O. 14024, and in consultation with the Department of State and pursuant to 31 CFR 587.802, I hereby determine that section 1(a)(i) of E.O. 14024 shall apply to the metals and mining sector of the Russian Federation economy. Any person determined, pursuant to section 1(a)(i) of E.O. 14024, to operate or have operated in this sector shall be subject to sanctions pursuant to section 1(a)(i).

This determination shall take effect on February 24, 2023.

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

On December 15, 2022, OFAC issued GLs 8E, 58, and 59 to authorize certain transactions otherwise prohibited by the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587. Each GL was made available on OFAC's website ( www.treas.gov/ofac ) when it was issued. GL 8E had an expiration date of May 16, 2023, but was superseded by the issuance of GL 8F on February 24, 2023. GLs 58 and 59 have an expiration date of March 15, 2023. The text of these GLs is provided below.

(a) Except as provided in paragraph (c) of this general license, all transactions prohibited by Executive Order (E.O.) 14024 involving one or more of the following entities that are related to energy are authorized, through 12:01 a.m. eastern daylight time, May 16, 2023:

(1) State Corporation Bank for Development and Foreign Economic Affairs Vnesheconombank;

(2) Public Joint Stock Company Bank Financial Corporation Otkritie;

(3) Sovcombank Open Joint Stock Company;

(4) Public Joint Stock Company Sberbank of Russia;

(5) VTB Bank Public Joint Stock Company;

(6) Joint Stock Company Alfa-Bank;

(7) Public Joint Stock Company Rosbank;

(8) Any entity in which one or more of the above persons own, directly or indirectly, individually or in the aggregate, a 50 percent or greater interest; or

(9) the Central Bank of the Russian Federation.

(b) For the purposes of this general license, the term “related to energy” means the extraction, production, refinement, liquefaction, gasification, regasification, conversion, enrichment, fabrication, transport, or purchase of petroleum, including crude oil, lease condensates, unfinished oils, natural gas liquids, petroleum products, natural gas, or other products capable of producing energy, such as coal, wood, or agricultural products used to manufacture biofuels, or uranium in any form, as well as the development, production, generation, transmission, or exchange of power, through any means, including nuclear, thermal, and renewable energy sources.

(c) This general license does not authorize:

(1) Any transactions prohibited by Directive 1A under E.O. 14024, Prohibitions Related to Certain Sovereign Debt of the Russian Federation;

(2) The opening or maintaining of a correspondent account or payable-through account for or on behalf of any entity subject to Directive 2 under E.O. 14024, Prohibitions Related to Correspondent or Payable-Through Accounts and Processing of Transactions Involving Certain Foreign Financial Institutions;

(3) Any debit to an account on the books of a U.S. financial institution of the Central Bank of the Russian Federation; or

(4) Any transactions otherwise prohibited by the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587 (RuHSR), including transactions involving any person blocked pursuant to the RuHSR other than the blocked persons described in paragraph (a) of this general license, unless separately authorized.

(d) Effective December 15, 2022, General License No. 8D, dated November 10, 2022, is replaced and superseded in its entirety by this General License No. 8E.

(a) Except as provided in paragraph (c) of this general license, all transactions prohibited by Executive Order (E.O.) 14024 that are ordinarily incident and necessary to the wind down of transactions involving Public Joint Stock Company Rosbank, or any entity in which Public Joint Stock Company Rosbank owns, directly or indirectly, a 50 percent or greater interest (“Rosbank entities”), are authorized through 12:01 a.m. eastern daylight time, March 15, 2023, provided that any payment to a Rosbank entity is made into a blocked account in accordance with the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587 (RuHSR).

(b) Except as provided in paragraph (c) of this general license, U.S. persons are authorized to reject, rather than block, all transactions prohibited by E.O. 14024 that are ordinarily incident and necessary to the processing of funds involving one or more Rosbank entities as an originating, intermediary, or beneficiary financial institution, through 12:01 a.m. eastern daylight time, March 15, 2023.

(c) This general license does not authorize:

(1) Any transactions prohibited by Directive 2 under E.O. 14024, Prohibitions Related to Correspondent or Payable-Through Accounts and Processing of Transactions Involving Certain Foreign Financial Institutions;

(2) Any debit to an account on the books of a U.S. financial institution of the Central Bank of the Russian Federation, the National Wealth Fund of the Russian Federation, or the Ministry of Finance of the Russian Federation; or

(3) Any transactions otherwise prohibited by the RuHSR, including transactions involving any person blocked pursuant to the RuHSR other than the blocked persons described in paragraph (a) of this general license, unless separately authorized.

(a) Except as provided in paragraphs (d) and (e) of this general license, all transactions prohibited by Executive Order (E.O.) 14024 that are ordinarily incident and necessary to the divestment or transfer, or the facilitation of the divestment or transfer, of debt or equity of Public Joint Stock Company Rosbank (Rosbank), or any entity in which Rosbank owns, directly or indirectly, a 50 percent or greater interest (“covered debt or equity”), to a non-U.S. person are authorized through 12:01 a.m. eastern daylight time, March 15, 2023.

(b) Except as provided in paragraph (e) of this general license, all transactions prohibited by E.O. 14024 that are ordinarily incident and necessary to facilitating, clearing, and settling trades of covered debt or equity that were placed prior to 4:00 p.m. eastern standard time, December 15, 2022, are authorized through 12:01 a.m. eastern daylight time, March 15, 2023.

(c) Except as provided in paragraph (e) of this general license, all transactions prohibited by E.O. 14024 that are ordinarily incident and necessary to the wind down of derivative contracts entered into prior to 4:00 p.m. eastern standard time, December 15, 2022, that (i) include a blocked person described in paragraph (a) of this general license as a counterparty or (ii) are linked to covered debt or equity are authorized through 12:01 a.m. eastern daylight time, March 15, 2023, provided that any payments to a blocked person are made into a blocked account in accordance with the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587 (RuHSR).

(d) Paragraph (a) of this general license does not authorize:

(1) U.S. persons to sell, or to facilitate the sale of, covered debt or equity to, directly or indirectly, any person whose property and interests in property are blocked; or

(2) U.S. persons to purchase or invest in, or to facilitate the purchase of or investment in, directly or indirectly, covered debt or equity, other than purchases of or investments in covered debt or equity ordinarily incident and necessary to the divestment or transfer of covered debt or equity as described in paragraph (a) of this general license.

(e) This general license does not authorize:

(1) Any transactions prohibited by Directive 2 under E.O. 14024, Prohibitions Related to Correspondent or Payable-Through Accounts and Processing of Transactions Involving Certain Foreign Financial Institutions;

(2) Any debit to an account on the books of a U.S. financial institution of the Central Bank of the Russian Federation, the National Wealth Fund of the Russian Federation, or the Ministry of Finance of the Russian Federation; or

(3) Any transactions otherwise prohibited by the RuHSR, including transactions involving any person blocked pursuant to the RuHSR other than the blocked persons described in paragraph (a) of this general license, unless separately authorized.

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

On February 24, 2023, OFAC issued GLs 8F, 13D, 60, and 61 to authorize certain transactions otherwise prohibited by the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587. GLs 8F and 13D superseded GLs 8E and 13C, respectively. Each GL was made available on OFAC's website ( www.treas.gov/ofac ) when it was issued. The text of these GLs is provided below.

(a) Except as provided in paragraph (c) of this general license, all transactions prohibited by Executive Order (E.O.) 14024 involving one or more of the following entities that are related to energy are authorized, through 12:01 a.m. eastern daylight time, May 16, 2023:

(1) State Corporation Bank for Development and Foreign Economic Affairs Vnesheconombank;

(2) Public Joint Stock Company Bank Financial Corporation Otkritie;

(3) Sovcombank Open Joint Stock Company;

(4) Public Joint Stock Company Sberbank of Russia;

(5) VTB Bank Public Joint Stock Company;

(6) Joint Stock Company Alfa-Bank;

(7) Public Joint Stock Company Rosbank;

(8) Bank Zenit Public Joint Stock Company;

(9) Bank Saint-Petersburg Public Joint Stock Company;

(10) Any entity in which one or more of the above persons own, directly or indirectly, individually or in the aggregate, a 50 percent or greater interest; or

(11) the Central Bank of the Russian Federation.

(b) For the purposes of this general license, the term “related to energy” means the extraction, production, refinement, liquefaction, gasification, regasification, conversion, enrichment, fabrication, transport, or purchase of petroleum, including crude oil, lease condensates, unfinished oils, natural gas liquids, petroleum products, natural gas, or other products capable of producing energy, such as coal, wood, or agricultural products used to manufacture biofuels, or uranium in any form, as well as the development, production, generation, transmission, or exchange of power, through any means, including nuclear, thermal, and renewable energy sources.

(c) This general license does not authorize:

(1) Any transactions prohibited by Directive 1A under E.O. 14024, Prohibitions Related to Certain Sovereign Debt of the Russian Federation;

(2) The opening or maintaining of a correspondent account or payable-through account for or on behalf of any entity subject to Directive 2 under E.O. 14024, Prohibitions Related to Correspondent or Payable-Through Accounts and Processing of Transactions Involving Certain Foreign Financial Institutions;

(3) Any debit to an account on the books of a U.S. financial institution of the Central Bank of the Russian Federation; or

(4) Any transactions otherwise prohibited by the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587 (RuHSR), including transactions involving any person blocked pursuant to the RuHSR other than the blocked persons described in paragraph (a) of this general license, unless separately authorized.

(d) Effective February 24, 2023, General License No. 8E, dated December 15, 2022, is replaced and superseded in its entirety by this General License No. 8F.

(a) Except as provided in paragraph (b) of this general license, U.S. persons, or entities owned or controlled, directly or indirectly, by a U.S. person, are authorized to pay taxes, fees, or import duties, and purchase or receive permits, licenses, registrations, or certifications, to the extent such transactions are prohibited by Directive 4 under Executive Order 14024, Prohibitions Related to Transactions Involving the Central Bank of the Russian Federation, the National Wealth Fund of the Russian Federation, and the Ministry of Finance of the Russian Federation, provided such transactions are ordinarily incident and necessary to the day-to-day operations in the Russian Federation of such U.S. persons or entities, through 12:01 a.m. eastern daylight time, June 6, 2023.

(b) This general license does not authorize:

(1) Any debit to an account on the books of a U.S. financial institution of the Central Bank of the Russian Federation, the National Wealth Fund of the Russian Federation, or the Ministry of Finance of the Russian Federation; or

(2) Any transactions otherwise prohibited by the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587 (RuHSR), including transactions involving any person blocked pursuant to the RuHSR, unless separately authorized.

(c) Effective February 24, 2023, General License No. 13C, dated November 21, 2022, is replaced and superseded in its entirety by this General License No. 13D.

(a) Except as provided in paragraph (c) of this general license, all transactions prohibited by Executive Order (E.O.) 14024 that are ordinarily incident and necessary to the wind down of transactions involving one or more of the following blocked persons (collectively, “the Blocked Entities”) are authorized through 12:01 a.m. eastern daylight time, May 25, 2023, provided that any payment to a Blocked Entity is made into a blocked account in accordance with the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587 (RuHSR):

(1) Bank Saint-Petersburg Public Joint Stock Company;

(2) Bank Zenit Public Joint Stock Company;

(3) Joint Stock Commercial Bank Primorye;

(4) Public Joint Stock Company Bank Uralsib;

(5) Joint Stock Company Commercial Bank Lanta Bank;

(6) SDM-Bank Public Joint Stock Company;

(7) Public Joint Stock Company Stock Commercial Bank Metallurgical Investment Bank;

(8) Public Joint Stock Company Ural Bank for Reconstruction And Development;

(9) Credit Bank of Moscow Public Joint Stock Company; or

(10) Any entity in which one or more of the above persons own, directly or indirectly, individually or in the aggregate, a 50 percent or greater interest.

(b) Except as provided in paragraph (c) of this general license, U.S. persons are authorized to reject, rather than block, all transactions prohibited by E.O. 14024 that are ordinarily incident and necessary to the processing of funds involving one or more of the Blocked Entities as an originating, intermediary, or beneficiary financial institution, through 12:01 a.m. eastern daylight time, May 25, 2023.

(c) This general license does not authorize:

(1) Any transactions prohibited by Directive 2 under E.O. 14024, Prohibitions Related to Correspondent or Payable-Through Accounts and Processing of Transactions Involving Certain Foreign Financial Institutions;

(2) Any debit to an account on the books of a U.S. financial institution of the Central Bank of the Russian Federation, the National Wealth Fund of the Russian Federation, or the Ministry of Finance of the Russian Federation; or

(3) Any transactions otherwise prohibited by the RuHSR, including transactions involving any person blocked pursuant to the RuHSR other than the Blocked Entities described in paragraph (a) of this general license, unless separately authorized.

(a) Except as provided in paragraphs (d) and (e) of this general license, all transactions prohibited by Executive Order (E.O.) 14024 that are ordinarily incident and necessary to the divestment or transfer, or the facilitation of the divestment or transfer, of debt or equity of the following blocked persons (“covered debt or equity”) to a non-U.S. person are authorized through 12:01 a.m. eastern daylight time, May 25, 2023:

(1) Bank Saint-Petersburg Public Joint Stock Company;

(2) Bank Zenit Public Joint Stock Company;

(3) Public Joint Stock Company Bank Uralsib;

(4) Joint Stock Company Commercial Bank Lanta Bank;

(5) SDM-Bank Public Joint Stock Company;

(6) Public Joint Stock Company Stock Commercial Bank Metallurgical Investment Bank; or

(7) Any entity in which one or more of the above persons own, directly or indirectly, individually or in the aggregate, a 50 percent or greater interest.

(b) Except as provided in paragraph (e) of this general license, all transactions prohibited by E.O. 14024 that are ordinarily incident and necessary to facilitating, clearing, and settling trades of covered debt or equity that were placed prior to 4:00 p.m. eastern standard time, February 24, 2023, are authorized through 12:01 a.m. eastern daylight time, May 25, 2023.

(c) Except as provided in paragraph (e) of this general license, all transactions prohibited by E.O. 14024 that are ordinarily incident and necessary to the wind down of derivative contracts entered into prior to 4:00 p.m. eastern standard time, February 24, 2023, that (i) include a blocked person described in paragraph (a) of this general license as a counterparty or (ii) are linked to covered debt or equity are authorized through 12:01 a.m. eastern daylight time, May 25, 2023, provided that any payments to a blocked person are made into a blocked account in accordance with the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587 (RuHSR).

(d) Paragraph (a) of this general license does not authorize:

(1) U.S. persons to sell, or to facilitate the sale of, covered debt or equity to, directly or indirectly, any person whose property and interests in property are blocked; or

(2) U.S. persons to purchase or invest in, or to facilitate the purchase of or investment in, directly or indirectly, covered debt or equity, other than purchases of or investments in covered debt or equity ordinarily incident and necessary to the divestment or transfer of covered debt or equity as described in paragraph (a) of this general license.

(e) This general license does not authorize:

(1) Any transactions prohibited by Directive 2 under E.O. 14024, Prohibitions Related to Correspondent or Payable-Through Accounts and Processing of Transactions Involving Certain Foreign Financial Institutions;

(2) Any debit to an account on the books of a U.S. financial institution of the Central Bank of the Russian Federation, the National Wealth Fund of the Russian Federation, or the Ministry of Finance of the Russian Federation; or(3) Any transactions otherwise prohibited by the RuHSR, including transactions involving any person blocked pursuant to the RuHSR other than the blocked persons described in paragraph (a) of this general license, unless separately authorized.

The Coast Guard is issuing this temporary final 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), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is unnecessary.

On 19 April 2021, the Coast Guard issued a General Deviation which allowed the bridge owner to deviate from the current operating schedule in 33 CFR 117.207(a) to repair the bridge. This deviation letter can be found in this Docket as supporting documentation. Due to delays in procuring materials, the project ran past the approved deviation. The work cannot stop and needs to continue in order to bring the bridge back to normal operation. Therefore, there is lack of sufficient time to provide a reasonable comment period and then consider those comments before issuing the modification.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective in less than 30 days after publication in the Federal Register . For reasons presented above, delaying the effective date of this rule would be impracticable and contrary to the public interest given the need to complete repairs to the bridge which are already underway and preventing full operation.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 499. The Coast Guard is modifying the operating schedule that governs the US 1 Bridge across the Housatonic River, mile 3.5, Stratford, Connecticut. The US 1 Bridge has a vertical clearance in the closed position of 32 feet at mean high water.

The existing drawbridge regulation is listed at 33 CFR 117.207(a). The Connecticut Department of Transportation, the bridge owner, has requested this modification as additional time is required to complete the bridge rehabilitation.

The waterway is transited by seasonal recreational traffic as well as commercial fishing charters. Coordination with known waterway users has indicated no objection to the proposed schedule of the draw. During the temporary final rule the bridge will be operating under single leaf operations. Mariners can transit through the operating leaf.

The Coast Guard is issuing this rule, which permits a temporary deviation from the operating schedule that governs the US 1 Bridge across the Housatonic River, mile 3.5, Stratford, Connecticut. The rule is necessary to accommodate the completion of the bridge rehabilitation. This rule allows the bridge to operate under single leaf openings from November 30, 2022 until June 30, 2023.

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

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

This regulatory action determination is based on the ability that vessels can still transit the bridge through the alternate operating leaf.

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

While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01, Rev.1, associated implementing instructions, and Environmental Planning Policy COMDTINST 5090.1 (series) which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f). The Coast Guard has determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule promulgates the operating regulations or procedures for drawbridges and is categorically excluded from further review, under paragraph L49, of Chapter 3, Table3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.

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

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

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

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Corpus Christi (COTP) has determined that potential hazards associated with the airshow from 11:30 a.m. through 4 p.m. each day, starting on May 4, 2023 through May 7, 2023, will be a safety concern for anyone within the waters of the Corpus Christi Bay on an area of 1.25 sq. miles on the following box; 27°49′2.78″ N, 97°23′16.1″ W to 27°47′3.69″ N, 97°23′14.62″ W to 27°47′5.46″ N, 97°22′41.02″ W to 27°49′2.73″ N, 97°22′42.97″ W to 27°49′2.78″ N, 97°23′16.10″ W. The purpose of this rule is to ensure safety of vessels and persons on these navigable waters in the safety zone while the airshow takes place in the Corpus Christi Bay.

This rule establishes a temporary safety zone from 11:30 a.m. through 4 p.m. each day, starting on May 4, 2023 through May 7, 2023. The safety zone will encompass certain navigable waters of the Corpus Christi Bay and is defined by a 1.25 sq. miles box. The regulated area encompasses the following coordinates; 27°49′2.78″ N, 97°23′16.1″ W to 27°47′3.69″ N, 97°23′14.62″ W to 27°47′5.46″ N, 97°22′41.02″ W to 27°49′2.73″ N, 97°22×42.97″ W to 27°49′2.78″ N, 97°23′16.10″ W. The airshow display will take place in waters of the Corpus Christi Bay. No vessel or person is permitted to enter the temporary safety zone during the effective period without obtaining permission from the COTP or a designated representative, who may be contacted on Channel 16 VHF-FM (156.8 MHz) or by telephone at 361-939-0450. The Coast Guard will issue Broadcast Notices to Mariners, Local Notices to Mariners, and/or Safety Marine Information Broadcasts 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 Executive Order 12866. 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 temporary safety zone will be enforced for a short period of 4.5 hours, each day. The zone is limited to 1.25 sq. miles box in the navigable waters of the Corpus Christi Bay. The rule does not completely restrict the traffic within a waterway and allows mariners to request permission to enter the zone.

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

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

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

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

This rule 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. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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, 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 establishment of a temporary safety zone for navigable waters of the Corpus Christi Bay in a zone defined by 1.25 sq. miles on the following box; 27°49′2.78″ N, 97°23′16.1″ W to 27°47″3.69″ N, 97°23′14.62″ W to 27°47′5.46″ N, 97°22′41.02″ W to 27°49′2.73″ N, 97°22′42.97″ W to 27°49′2.78″ N, 97°23′16.10″ W. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by an airshow in the waters of the Corpus Christi Bay. It is categorically excluded from further review under paragraph L60 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 contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

The Independent Offices Appropriation Act of 1952 (IOAA), 31 U.S.C. 9701, authorizes agencies to establish charges ( i.e., user fees) for services and benefits that they provide to specific recipients. Under the IOAA, charges must be fair and based on the costs to the Government, the value of the service or thing to the recipient, the public policy or interest served, and other relevant facts. The IOAA also provides that regulations implementing user fees are subject to policies prescribed by the President, which are currently set forth in Office of Management and Budget (OMB) Circular A-25, User Charges (revised July 8, 1993).

Under OMB Circular A-25, fees must be established for Government-provided services that confer benefits on identifiable recipients over and above those benefits received by the general public. OMB Circular A-25 further provides that, generally, user fees must be sufficient to recover the full cost to the government for providing the service, resource, or good. Agencies are advised to determine or estimate costs based on the best available records in the agency and to ensure that cost computations cover the direct and indirect costs to the agency of providing the service. OMB Circular A-25 also states that agencies are permitted to set user fees below costs if conditions justify the exception.

OMB Circular A-25 also directs agencies to review biennially: (1) user charges for agency programs to assure that existing charges are adjusted to reflect unanticipated changes in costs or market values; and (2) all other agency programs to determine whether fees should be assessed. The Commission last reviewed and updated its user fees in 2020. 85 FR 72574 (Nov. 13, 2020).

The Commission has reviewed its data on the time and cost involved in providing particular services to arrive at the updated direct and indirect labor costs for those services. As part of its assessment, the Commission utilized salaries of Full Time Equivalents (FTEs) assigned to fee-generating activities to identify the various direct and indirect costs associated with providing such services. Direct labor costs include clerical and professional time expended on an activity. Indirect labor costs include labor provided by bureaus and offices that provide direct support to the fee-generating offices in their efforts to provide services and include managerial and supervisory costs associated with providing a particular service. Other indirect costs include Government overhead costs, such as fringe benefits and other wage-related Government contributions contained in OMB Circular A-76, Performance of Commercial Activities (revised May 29, 2003) and office general and administrative expenses. 1 The sum of these indirect cost components gives an indirect cost factor that is added to the direct labor costs of an activity to arrive at the fully distributed cost. A more detailed description of the Commission's methodology has been included in the docket.

The Commission is increasing some fees to reflect increased costs relating to FTEs assigned to certain fee-generating services. For some services, an increase in processing or review time may account for all or part of the increase in the amount of the fees. For one service, the Commission is decreasing fees because less-senior employees are assigned to the fee-generating activity. No substantive changes to the underlying regulations are included in this rulemaking; only changes to the user fee amounts.

The Commission is including two supporting documents providing detailed information on the updated user fee calculations in the docket. The first document shows the direct and indirect costs for each service for which a fee is assessed based on FY 2022 cost data. The second document compares the current fee amounts established in 2020 with the updated fee amounts reflecting the current costs, showing the percentage increase or decrease and change in dollar amount.

The Commission briefly describes below significant changes in user fees and changes that result in more than a 10 percent increase or decrease to a particular fee.

For the 2020 Direct Final Rule Updating User Fees, the Commission used FY 2019 cost data, including FY 2019 salaries. Despite the fact that the 2022 update to user fees is occurring two years later, the Commission is using salary and cost data from FY 2022 to provide the most precise estimate of costs associated with user fees consistent with OMB Circular A-25. This three-year gap contributes to a significant increase in fees. Further, during this three-year period, inflation has raised salaries as well as overhead. Many of the fee increases of more than 10 percent are simply due to updating fees to reflect current costs.

When the Commission issued the last update to user fees in 2020, the rule noted that the Commission was in the process of transitioning from a paper application process to an electronic process for processing Ocean Transportation Intermediary applications. The Commission also noted that the fee for electronic applications was not modified as the system was not operational, and the costs could not be evaluated. See 85 FR 72574. The Commission has completed the migration to an electronic application and now updates the user fees for Part 515 through this rule to reflect the true cost to the agency of providing this service.

The Commission has previously provided a service to the public of correcting clerical or administrative errors with service contracts. The Commission no longer provides this service. The Commission has set the fee for this service at $0 and will address this regulation in a future rule.

You may submit comments by using the Federal eRulemaking Portal at www.regulations.gov, under Docket No. FMC-2023-0009, Update of Existing FMC User Fees Direct Final Rule. Please follow the instructions provided on the Federal eRulemaking Portal to submit comments.

The Commission will provide confidential treatment for identified confidential information to the extent allowed by law. If you would like to request confidential treatment, pursuant to 46 CFR 502.5, you must submit the following, by email, to secretary@fmc.gov:

• A transmittal letter that identifies the specific information in the comments for which protection is sought and demonstrates that the information is a trade secret or other confidential research, development, or commercial information.

• A confidential copy of your comments, consisting of the complete filing with a cover page marked “Confidential-Restricted,” and the confidential material clearly marked on each page.

• A public version of your comments with the confidential information excluded. The public version must state “Public Version—confidential materials excluded” on the cover page and on each affected page and must clearly indicate any information withheld.

The Commission will consider all comments received before the 11:59 EST on the comment closing date indicated above under DATES . To the extent possible, we will also consider comments received after that date.

You may read the comments received by the Commission at www.regulations.gov, under Docket No. FMC-2023-0009, Update of Existing FMC User Fees Direct Final Rule.

The Commission expects the user fee updates to be noncontroversial. Under the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), a final rule may be issued without notice and comment when the agency for good cause finds (and incorporates the finding and a brief statement of the need) that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. This rule updates the user fee amounts for various services provided by the Commission based on a review of the costs to provide these services. This rule makes no substantive changes to the Commission's regulations nor does it affect any filing or other requirement. Accordingly, the Commission has determined that providing an opportunity for comment prior to publication of this direct final rule is unnecessary under 5 U.S.C. 553(b)(B).

This rule will become effective on the date listed in the DATES section unless the Commission receives significant adverse comments within the specified period. The Commission recognizes that parties may have information that could impact the Commission's views and intentions with respect to the revised regulations, and the Commission intends to consider any comments filed. The Commission will withdraw the rule by the date specified in the DATES section if it receives significant adverse comments.

We note that the scope of the rulemaking is limited to the amounts charged for Commission services, and any substantive changes to the underlying regulations governing those services or related requirements would be outside this scope. Accordingly, comments on the underlying regulations and related requirements will not be considered adverse. Filed comments that are not adverse may be considered for modifications to the Commission's regulations at a future date. If no significant adverse comments are received, the rule will become effective without additional action by the Commission.

The rule is not a “major rule” as defined by the Congressional Review Act, codified at 5 U.S.C. 801 et seq. The rule will not result in: (1) an annual effect on the economy of $100,000,000 or more; (2) a major increase in costs or prices; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies. 5 U.S.C. 804(2).

The Regulatory Flexibility Act (codified as amended at 5 U.S.C. 601-612) provides that whenever an agency promulgates a final rule after being required to publish a notice of proposed rulemaking under the APA (5 U.S.C. 553), the agency must prepare and make available a final regulatory flexibility analysis (FRFA) describing the impact of the rule on small entities. 5 U.S.C. 604. An agency is not required to publish a FRFA, however, for the following types of rules, which are excluded from the APA's notice-and-comment requirement: interpretative rules; general statements of policy; rules of agency organization, procedure, or practice; and rules for which the agency for good cause finds that notice and comment is impracticable, unnecessary, or contrary to public interest. See 5 U.S.C. 553(b).

As discussed above, the Commission has for good cause determined that notice and comment in this case is unnecessary. Therefore, the APA does not require publication of a notice of proposed rulemaking in this instance, and the Commission is not required to prepare a FRFA.

The Commission's regulations categorically exclude certain rulemakings from any requirement to prepare an environmental assessment or an environmental impact statement because they do not increase or decrease air, water or noise pollution or the use of fossil fuels, recyclables, or energy. 46 CFR 504.4. This rule updates user fees for services that fall within various categorical exclusions, and no environmental assessment or environmental impact statement is required. In particular, rulemakings related to the following fall under categorical exclusions: issuance, modification, denial and revocation of ocean transportation intermediary licenses under part 515 (§ 504.4(a)(1)); certification of financial responsibility of passenger vessels under part 540 (§ 504.4(a)(2)); promulgation of procedural rules under part 502 (§ 504.4(a)(4)); receipt of service contracts (§ 504.4(a)(5)); consideration of special permission applications under part 520 (§ 504.4(a)(6)); consideration of agreements (§ 504.4(a)(9)-(13), (30)-(35)); action taken on special docket applications under § 502.271 (§ 504.4(a)(19)); and action regarding access to public information under part 503 (§ 504.4(a)(24)).

This rule meets the applicable standards in E.O. 12988 titled, “Civil Justice Reform,” to minimize litigation, eliminate ambiguity, and reduce burden.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) requires an agency to seek and receive approval from the Office of Management and Budget (OMB) before collecting information from the public. 44 U.S.C. 3507. The agency must submit collections of information in rules to OMB in conjunction with the publication of a rule. 5 CFR 1320.11. This rule does not contain any collections of information as defined by 44. U.S.C. 3502(3) and 5 CFR 1320.3(c).

The Commission assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions (Unified Agenda). The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda, available at http://www.reginfo.gov/public/do/eAgendaMain.

For the reasons set forth above, the Federal Maritime Commission amends 46 CFR parts 502, 503, 515, 520, 530, 535, 540, 550, 555, and 560 as follows:

(g) The filing fee is $3,980 for new agreements and $4,637 for any agreement modifications requiring Commission review and action; $1,174 for agreements processed under delegated authority (for types of agreements that can be processed under delegated authority, see § 501.27(e) of this chapter); $343 for carrier exempt agreements; and $96 for terminal exempt agreements.

Section 118 of the MMPA requires NMFS to place all U.S. commercial fisheries into one of 3 categories based on the level of incidental mortality and serious injury of marine mammals occurring in each fishery (16 U.S.C. 1387(c)(1)). The classification of a fishery on the LOF determines whether participants in that fishery may be required to comply with certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements. NMFS must reexamine the LOF annually, considering new information in the Marine Mammal Stock Assessment Reports (SARs) and other relevant sources, and publish in the Federal Register any necessary changes to the LOF after notice and opportunity for public comment (16 U.S.C. 1387 (c)(1)(C)).

The definitions for the fishery classification criteria can be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2). The criteria are also summarized here.

The fishery classification criteria consist of a two-tiered, stock-specific approach that first addresses the total impact of all fisheries on each marine mammal stock and then addresses the impact of individual fisheries on each stock. This approach is based on consideration of the rate, in numbers of animals per year, of incidental mortalities and serious injuries of marine mammals due to commercial fishing operations relative to the potential biological removal (PBR) level for each marine mammal stock. The MMPA (16 U.S.C. 1362 (20)) defines the PBR level as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock, while allowing that stock to reach or maintain its optimum sustainable population. This definition can also be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2).

Tier 1: Tier 1 considers the cumulative fishery mortality and serious injury for a particular stock. If the total annual mortality and serious injury of a marine mammal stock, across all fisheries, is less than or equal to 10 percent of the PBR level of the stock, all fisheries interacting with the stock will be placed in Category III (unless those fisheries interact with other stock(s) for which total annual mortality and serious injury is greater than 10 percent of PBR). Otherwise, these fisheries are subject to the next tier (Tier 2) of analysis to determine their classification.

Tier 2: Tier 2 considers fishery-specific mortality and serious injury for a particular stock.

Category I: Annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the PBR level ( i.e., frequent incidental mortality and serious injury of marine mammals).

Category II: Annual mortality and serious injury of a stock in a given fishery is greater than 1 percent and less than 50 percent of the PBR level ( i.e., occasional incidental mortality and serious injury of marine mammals).

Category III: Annual mortality and serious injury of a stock in a given fishery is less than or equal to 1 percent of the PBR level ( i.e., a remote likelihood of or no known incidental mortality and serious injury of marine mammals).

Additional details regarding how the categories were determined are provided in the preamble to the final rule implementing section 118 of the MMPA (60 FR 45086; August 30, 1995).

Because fisheries are classified on a per-stock basis, a fishery may qualify as one category for one marine mammal stock and another category for a different marine mammal stock. A fishery is typically classified on the LOF at its highest level of classification ( e.g., a fishery qualifying for Category III for one marine mammal stock and for Category II for another marine mammal stock will be listed under Category II). Stocks driving a fishery's classification are denoted with a superscript “1” in Tables 1 and 2.

The tier analysis requires a minimum amount of data, and NMFS does not have sufficient data to perform a tier analysis on certain fisheries. Therefore, NMFS has classified certain fisheries by analogy to other fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, or according to factors discussed in the final LOF for 1996 (60 FR 67063; December 28, 1995) and listed in the regulatory definition of a Category II fishery. In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, NMFS will determine whether the incidental mortality or serious injury is “occasional” by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fishermen reports, stranding data, and the species and distribution of marine mammals in the area, or at the discretion of the Assistant Administrator for Fisheries (50 CFR 229.2).

Further, eligible commercial fisheries not specifically identified on the LOF are deemed to be Category II fisheries until the next LOF is published (50 CFR 229.2).

The LOF includes a list of marine mammal species and/or stocks incidentally killed or injured in each commercial fishery. The list of species and/or stocks incidentally killed or injured includes “serious” and “non-serious” documented injuries as described later in the List of Species and/or Stocks Incidentally Killed or Injured in the Pacific Ocean and List of Species and/or Stocks Incidentally Killed or Injured in the Atlantic Ocean, Gulf of Mexico, and Caribbean sections. To determine which species or stocks are included as incidentally killed or injured in a fishery, NMFS annually reviews the information presented in the current SARs and injury determination reports. SARs are brief reports summarizing the status of each stock of marine mammals occurring in waters under U.S. jurisdiction, including information on the identity and geographic range of the stock, population statistics related to abundance, trend, and annual productivity, notable habitat concerns, and estimates of human-caused mortality and serious injury (M/SI) by source. The SARs are based upon the best available scientific information and provide the most current and inclusive information on each stock's PBR level and level of interaction with commercial fishing operations. The best available scientific information used in the SARs and reviewed for the 2023 LOF generally summarizes data from 2015-2019. NMFS also reviews other sources of new information, including injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fishermen self-reports ( i.e., MMPA mortality/injury reports), and anecdotal reports from that time period. In some cases, more recent information may be available and used in the LOF.

For fisheries with observer coverage, species or stocks are generally removed from the list of marine mammal species and/or stocks incidentally killed or injured if no interactions are documented in the five-year timeframe summarized in that year's LOF. For fisheries with no observer coverage and for observed fisheries with evidence indicating that undocumented interactions may be occurring ( e.g., fishery has low observer coverage and stranding network data include evidence of fisheries interactions that cannot be attributed to a specific fishery), species and stocks may be retained for longer than five years. For these fisheries, NMFS will review the other sources of information listed above and use its discretion to decide when it is appropriate to remove a species or stock.

The best available information on the level of observer coverage and the spatial and temporal distribution of observed marine mammal interactions is presented in the SARs. Data obtained from the observer program and observer coverage levels are important tools in estimating the level of marine mammal mortality and serious injury in commercial fishing operations. Starting with the 2005 SARs, each Pacific and Alaska SAR includes an appendix with detailed descriptions of each Category I and II fishery on the LOF, including the observer coverage in those fisheries. For Atlantic fisheries, this information can be found in the LOF Fishery Fact Sheets. The SARs do not provide detailed information on observer coverage in Category III fisheries because, under the MMPA, Category III fisheries are not required to accommodate observers aboard vessels due to the remote likelihood of mortality and serious injury of marine mammals. Fishery information presented in the SARs' appendices and other resources referenced during the tier analysis may include: level of observer coverage; target species; levels of fishing effort; spatial and temporal distribution of fishing effort; characteristics of fishing gear and operations; management and regulations; and interactions with marine mammals. Copies of the SARs are available on the NMFS Office of Protected Resources website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. Information on observer coverage levels in Category I, II, and III fisheries can be found in the fishery fact sheets on the NMFS Office of Protected Resources' website: https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables. Additional information on observer programs in commercial fisheries can be found on the NMFS National Observer Program's website: https://www.fisheries.noaa.gov/national/fisheries-observers/national-observer-program.

The LOF includes three tables that list all U.S. commercial fisheries by Category. Table 1 lists all of the commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists all of the commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean; and Table 3 lists all U.S. authorized commercial fisheries on the high seas. A fourth table, Table 4, lists all commercial fisheries managed under applicable TRPs or take reduction teams (TRT).

Beginning with the 2009 LOF, NMFS includes high seas fisheries in Table 3 of the LOF, along with the number of valid High Seas Fishing Compliance Act (HSFCA) permits in each fishery. As of 2004, NMFS issues HSFCA permits only for high seas fisheries analyzed in accordance with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The authorized high seas fisheries are broad in scope and encompass multiple specific fisheries identified by gear type. For the purposes of the LOF, the high seas fisheries are subdivided based on gear type ( e.g., trawl, longline, purse seine, gillnet, troll, etc.) to provide more detail on composition of effort within these fisheries. Many fisheries operate in both U.S. waters and on the high seas, creating some overlap between the fisheries listed in Tables 1 and 2 and those in Table 3. In these cases, the high seas component of the fishery is not considered a separate fishery, but an extension of a fishery operating within U.S. waters (listed in Table 1 or 2). NMFS designates those fisheries in Tables 1, 2, and 3 with an asterisk (*) after the fishery's name. The number of HSFCA permits listed in Table 3 for the high seas components of these fisheries operating in U.S. waters does not necessarily represent additional effort that is not accounted for in Tables 1 and 2. Many vessels/participants holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in Tables 1 and 2.

HSFCA permits are valid for 5 years, during which time Fishery Management Plans (FMPs) can change. Therefore, some vessels/participants may possess valid HSFCA permits without the ability to fish under the permit because it was issued for a gear type that is no longer authorized under the most current FMP. For this reason, the number of HSFCA permits displayed in Table 3 is likely higher than the actual U.S. fishing effort on the high seas. For more information on how NMFS classifies high seas fisheries on the LOF, see the preamble text in the final 2009 LOF (73 FR 73032; December 1, 2008). Additional information about HSFCA permits can be found at https://www.fisheries.noaa.gov/permit/high-seas-fishing-permits.

Starting with the 2010 LOF, NMFS developed summary documents, or fishery fact sheets, for each Category I and II fishery on the LOF. These fishery fact sheets provide the full history of each Category I and II fishery, including: (1) when the fishery was added to the LOF; (2) the basis for the fishery's initial classification; (3) classification changes to the fishery; (4) changes to the list of species and/or stocks incidentally killed or injured in the fishery; (5) fishery gear and methods used; (6) observer coverage levels; (7) fishery management and regulation; and (8) applicable TRPs or TRTs, if any. These fishery fact sheets are updated after each final LOF and can be found under “How Do I Find Out if a Specific Fishery is in Category I, II, or III?” on the NMFS Office of Protected Resources' website: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-list-fisheries, linked to the “List of Fisheries Summary” table. NMFS is developing similar fishery fact sheets for each Category III fishery on the LOF. However, due to the large number of Category III fisheries on the LOF and the lack of accessible and detailed information on many of these fisheries, the development of these fishery fact sheets is taking significant time to complete. NMFS began posting Category III fishery fact sheets online with the LOF for 2016.

Owners of vessels or gear engaging in a Category I or II fishery are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 CFR 229.4, to register with NMFS and obtain a marine mammal authorization to lawfully take marine mammals incidental to commercial fishing operations. The take of threatened or endangered marine mammals requires an additional authorization. Owners of vessels or gear engaged in a Category III fishery are not required to register with NMFS or obtain a marine mammal authorization.

NMFS has integrated the MMPA registration process, implemented through the Marine Mammal Authorization Program (MMAP), with existing state and Federal fishery license, registration, or permit systems for Category I and II fisheries on the LOF. Participants in these fisheries are automatically registered under the MMAP and are not required to submit registration or renewal materials.

In the Pacific Islands, West Coast, and Alaska regions, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail or with their state or Federal license or permit at the time of issuance or renewal. In the Southeast Region, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail automatically at the beginning of each calendar year. In the Greater Atlantic Region, NMFS will issue vessel or gear owners an authorization certificate electronically. The certificate can be downloaded and printed at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-authorization-program#obtaining-a-marine-mammal-authorization-certificate.

Vessel or gear owners who participate in fisheries in these regions and have not received authorization certificates by the beginning of the calendar year, or with renewed fishing licenses, must contact the appropriate NMFS Regional Office (see FOR FURTHER INFORMATION CONTACT ). Authorization certificates may also be obtained by visiting the MMAP website https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-authorization-program#obtaining-a-marine-mammal-authorization-certificate.

The authorization certificate, or a copy, must be on board the vessel while it is operating in a Category I or II fishery, or for non-vessel fisheries, in the possession of the person in charge of the fishing operation (50 CFR 229.4(e)). Although efforts are made to limit the issuance of authorization certificates to only those vessel or gear owners that participate in Category I or II fisheries, not all state and Federal license or permit systems distinguish between fisheries as classified by the LOF. Therefore, some vessel or gear owners in Category III fisheries may receive authorization certificates even though they are not required for Category III fisheries.

Individuals fishing in Category I and II fisheries for which no state or Federal license or permit is required must register with NMFS by contacting their appropriate Regional Office (see ADDRESSES ).

In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, any vessel owner or operator, or gear owner or operator (in the case of non-vessel fisheries), participating in a fishery listed on the LOF must report to NMFS all incidental mortalities and injuries of marine mammals that occur during commercial fishing operations, regardless of the category in which the fishery is placed (I, II, or III) within 48 hours of the end of the fishing trip or, in the case of non-vessel fisheries, fishing activity. “Injury” is defined in 50 CFR 229.2 as a wound or other physical harm. In addition, any animal that ingests fishing gear or any animal that is released with fishing gear entangling, trailing, or perforating any part of the body is considered injured, regardless of the presence of any wound or other evidence of injury, and must be reported.

Mortality/injury reporting forms and instructions for submitting forms to NMFS can be found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-authorization-program#reporting-a-death-or-injury-of-a-marine-mammal-during-commercial-fishing-operations or by contacting the appropriate regional office (see FOR FURTHER INFORMATION CONTACT ). Forms may be submitted via any of the following means: (1) online using the electronic form; (2) emailed as an attachment to nmfs.mireport@noaa.gov; (3) faxed to the NMFS Office of Protected Resources at 301-713-0376; or (4) mailed to the NMFS Office of Protected Resources (mailing address is provided on the postage-paid form that can be printed from the web address listed above). Reporting requirements and procedures are found in 50 CFR 229.6.

Individuals participating in a Category I or II fishery are required to accommodate an observer aboard their vessel(s) upon request from NMFS. MMPA section 118 states that the Secretary is not required to place an observer on a vessel if the facilities for quartering an observer or performing observer functions are so inadequate or unsafe that the health or safety of the observer or the safe operation of the vessel would be jeopardized; thereby authorizing the exemption of vessels too small to safely accommodate an observer from this requirement. However, U.S. Atlantic Ocean, Caribbean, or Gulf of Mexico large pelagic longline vessels operating in special areas designated by the Pelagic Longline Take Reduction Plan implementing regulations (50 CFR 229.36(d)) will not be exempted from observer requirements, regardless of their size. Observer requirements are found in 50 CFR 229.7.

Table 4 provides a list of fisheries affected by TRPs and TRTs. TRP regulations are found at 50 CFR 229.30 through 229.37. A description of each TRT and copies of each TRP can be found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-take-reduction-plans-and-teams. It is the responsibility of fishery participants to comply with applicable take reduction regulations.

Information regarding the LOF and the MMAP, including registration procedures and forms; current and past LOFs; descriptions of each Category I and II fishery and some Category III fisheries; observer requirements; and marine mammal mortality/injury reporting forms and submittal procedures; may be obtained at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-list-fisheries, or from any NMFS Regional Office at the addresses listed below:

NMFS reviewed the marine mammal incidental mortality and serious injury information presented in the SARs for all fisheries to determine whether changes in fishery classification are warranted. The SARs are based on the best scientific information available at the time of preparation, including the level of mortality and serious injury of marine mammals that occurs incidental to commercial fishery operations and the PBR levels of marine mammal stocks. The information contained in the SARs is reviewed by regional Scientific Review Groups (SRGs) representing Alaska, the Pacific (including Hawaii), and the U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs were established by the MMPA to review the science that informs the SARs, and to advise NMFS on marine mammal population status, trends, and stock structure; uncertainties in the science, research needs, and other issues.

NMFS also reviewed other sources of new information, including marine mammal stranding and entanglement data, observer program data, fishermen self-reports, reports to the SRGs, conference papers, FMPs, and ESA documents.

The LOF for 2023 was based on, among other things, stranding data; fishermen self-reports; and SARs, primarily the final 2021 SARs, which are based on data from 2015-2019. The SARs referenced in this LOF include: 2020 (86 FR 38991; July 23, 2021) and 2021 (87 FR 47385; August 3, 2022). The SARs are available at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region.

NMFS received five comment letters on the proposed LOF for 2023 (87 FR 55348; September 9, 2022). Comments were received from Hawaii Longline Association (HLA), Maine Department of Marine Resources (ME DMR), Maine Lobstermen's Association (MLA), Washington Department of Fish and Wildlife (WDFW) and a member of the public. Responses to substantive comments are below. Comments on actions not related to the LOF are not included. One commenter expressed general support for the rule.

Comment 1: HLA reiterates a previous comment recommending NMFS remove the Main Hawaiian Islands (MHI) insular and Northwestern Hawaiian Islands (NWHI) stocks of false killer whales from the list of species and/or stocks incidentally killed or injured in the Category I Hawaii deep-set longline fishery. HLA notes that (a) the False Killer Whale Take Reduction Plan (FKWTRP) closed the deep-set longline fishery for almost the entire range of the MHI insular stock, (b) since this change was made in 2013 there have been no false killer whale interactions in the fishery, and (c) there has never been a deep-set longline fishery M/SI in the very small area of the stocks' range where the fishery operates. They also state that no information has been presented to the False Killer Whale Take Reduction Team or the Pacific Scientific Review Group suggesting any false killer whale M/SI in the deep-set fishery can reliably be attributed to the MHI insular or NWHI stocks of false killer whales. HLA requests that NMFS remove the MHI insular and NWHI stocks of false killer whales from the list of species and/or stocks incidentally killed or injured in the Category I Hawaii deep-set longline fishery.

Response: This comment has been addressed previously (see 84 FR 22051, May 16, 2019; 85 FR 21079, April 16, 2020; 86 FR 3028, January 14, 2021). The MHI insular stock of false killer whales have been documented via telemetry to move far enough offshore to reach longline fishing areas (Bradford et al., 2015). The MHI insular, Hawaii pelagic, and NWHI stocks have partially overlapping ranges. MHI insular false killer whales have been satellite tracked as far as 115 kilometers (km) from the MHI, while pelagic stock animals have been tracked to within 11 km of the MHI and throughout the NWHI. Thus, M/SI of false killer whales of unknown stock within the stock overlap zones must be prorated to MHI insular, pelagic, or NWHI stocks. Annual bycatch estimates are prorated using a process outlined in detail in the SARs, which account for M/SI that occur within the MHI-pelagic or NWHI-pelagic overlap zones.

For observed fisheries with evidence indicating that undocumented interactions may be occurring ( e.g., fishery has evidence of fisheries interactions that cannot be attributed to a specific fishery, and stranding network data include evidence of fisheries interactions that cannot be attributed to a specific fishery), stocks may be retained on the LOF for longer than five years. For these fisheries, NMFS will review the other sources of relevant information to determine when it is appropriate to remove a species or stock from the LOF. As described in the 2019 LOF (84 FR 22051, May 16, 2019), 6 false killer whale M/SI incidental to the deep-set longline fishery were observed inside the exclusive economic zone (EEZ) around Hawaii, including three that occurred close to the outer boundary of the MHI Longline Fishing Prohibited Area, in close proximity to the outer boundary of the MHI Insular false killer whale stocks' range, which overlaps with areas that are open to deep-set longline fishing. MHI Insular false killer whales have been documented with injuries consistent with fisheries interactions that have not been attributed to a specific fishery (Baird et al., 2014). Additionally, in August 2020, NMFS reopened the Southern Exclusion Zone to Hawaii deep-set longline fishing (85 FR 50959, August 19, 2020).

In addition to the SARs, NMFS also reviews other sources of new information for the LOF, including injury determination reports, bycatch estimation reports, and observer data. In some cases, more recent information may be available and used in the LOF. In January 2019, there was an observed mortality of a false killer whale incidental to the Hawaii deep-set longline fishery that occurred within the range of the NWHI stock. Therefore, NMFS retains both the MHI insular and NWHI false killer whale stocks on the list of species and/or stocks incidentally killed or injured in the Category I Hawaii deep-set longline fishery.

Comment 2: HLA reiterates a previous comment recommending NMFS remove the Central North Pacific stock of humpback whale from the list of species and/or stocks incidentally killed or injured in the Category II Hawaii shallow-set longline fishery. They state that the most recent Central North Pacific humpback whale SAR does not include any M/SI in the HI shallow-set longline fishery in the last 5 years, and the fishery has 100 percent observer coverage.

Response: This comment has been addressed previously (see 86 FR 3028, January 14, 2021). In addition to the M/SI included in the SARs, the LOF references data from injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fishermen self-reports, and anecdotal reports. In March 2015, there was an observed humpback whale, Central North Pacific stock injury in the Category II Hawaii shallow-set longline fishery. The injury was determined to be non-serious. Due to the observed injury, the Central North Pacific stock of humpback whale is retained on the list of species and/or stocks incidentally killed or injured in the Category II Hawaii shallow-set longline fishery.

Comment 3: WDFW comments that the 2023 LOF proposed rule provides a fishery description for the Category III WA/OR sardine purse seine fishery, but the rule did not include a fishery description for the Category III WA/OR anchovy purse seine fishery. WDFW provided a description for the Category III WA/OR anchovy purse seine fishery.

Response: NMFS thanks WDFW for their review of the fishery descriptions provided in the proposed LOF for 2023 (87 FR 55348; September 9, 2022). The anchovy purse seine fishery in Washington and Oregon is currently associated with the Category III WA/OR herring, anchovy, smelt, squid purse seine or lampara fishery. The fishery description for the WA/OR herring, anchovy, smelt, squid purse seine or lampara fishery was published in the 2022 LOF (86 FR 43491; August 9, 2021). The anchovy purse seine fishery in Washington and Oregon is currently covered and sufficiently described on the LOF.

Comment 4: WDFW recommends NMFS revise the fishery description for the Category III WA/OR mainstem Columbia River eulachon gillnet fishery that was published in the proposed LOF (87 FR 55348; September 9, 2022) as follows.

Distribution: Eulachon (candlefish), which is a member of the typical smelts, are targeted in the Lower Columbia River downstream from Bonneville Dam. The fishery historically occurred throughout the winter and spring, from December 1 to March 31, to supply both the bait demand for sport sturgeon anglers and the fresh food market. In recent years, the fishery has been limited to a total of 8-15 days (primarily in February) by conservative fishery management decisions responding to declining returns and the 2010 ESA-listing.

Gear Description: The fishery is primarily conducted using 2-inch stretched bobber gill nets that are set during the turn of the tide and during the flood tide when the fish are present at intermediate depths. Most nets are suspended below the surface by dropper lines which are adjusted as needed.

Management: Oregon and Washington jointly decide management actions for Columbia River fish and fisheries in the trans-boundary mainstem reaches of the lower basin. Both states manage the fishery under the congressionally approved Columbia River Compact (Compact). The Compact States can open a commercial fishery only with the mutual consent and approbation of both states. The Compact does not restrict the right of either state to adopt regulations that are more conservative than that of the other, though such regulations can be enforced only in the adopting state's waters. Washington commercial fishers are required to have a Columbia River smelt commercial license when targeting eulachon for either human consumption or bait-fishing. Oregon does not require a separate smelt license; however, fishers do have to possess a commercial fishing license and a commercial fishing boat license. If eulachon are targeted only for bait sales, fishers may purchase a bait-fishing license only instead of a commercial fishing license and a commercial fishing boat license.

Response: NMFS thanks WDFW for the careful review of the draft fishery description for the Category III WA/OR mainstem Columbia River eulachon gillnet fishery. Based on the information provided by WDFW, we will incorporate the revised fishery description accordingly.

Comment 5: WDFW recommends NMFS revise the name of the Category III “WA/OR Lower Columbia River (includes tributaries) gillnet” fishery to the “WA/OR Lower Columbia River (includes tributaries) drift net” fishery. They also recommend revising the fishery description published in the proposed LOF (87 FR 55348; September 9, 2022) as follows.

Distribution: The mainstem Columbia River non-treaty commercial drift net fishery historically occurred during multiple seasons (winter, spring, summer, and fall), primarily targeting Chinook (spring, summer, and fall stocks) and coho salmon from the mouth of the Columbia River upstream to Beacon Rock, Washington (approximately 140 river miles). The fishing area is divided into zones of which some, or all, may be open during a specific season. Closed areas exist at many tributary mouths. A depiction of each of the zones can be found at: https://www.dfw.state.or.us/fish/OSCRP/CRM/docs/2013/Columbia%20River%20Commercial%20Zone%201-6%20Map.pdf.

Due to changes in state policies, mainstem winter, spring and summer non-treaty tribal commercial fisheries have effectively not occurred since 2016. The fall fishery is comprised of both Chinook and coho-directed fisheries, with the Chinook-directed fishery currently constrained to Zones 4-5 (described above), and the coho-directed fishery occurring in Zones 1-3. Non-treaty tribal gillnet fisheries occur throughout the year in Select Area fisheries located in-off-channel areas of the Lower Columbia River. Three sites exist on the Oregon side (Youngs Bay, Tongue Point/South Channel, and Knappa/Blind Sloughs) and one in Washington (Deep River). A map of the Select Area fishing sites is available here: https://www.dfw.state.or.us/fish/commercial/docs/Select%20Area%20Commercial%20Fishing%20Zones%20Map.pdf.

Gear Description: The fall Zone 4-5 fishery is non-mark selective for Chinook and coho. Gear is limited to drift gillnets with a maximum length of 250 fathoms, and a maximum mesh size of 9 3/4 inches. Minimum mesh size varies in the fall with a 9-inch minimum mesh size commonly used in August and 8-inch commonly used in September. Recently, the fall coho-directed fishery has been under mark-selective regulations for coho utilizing live-capture techniques (small-mesh sizes, short net soak time, recovery boxes, live-capture training, etc.). Gear is limited to drift tangle nets with a maximum length of 150 fathoms, a maximum mesh size of 3 3/4 inches, and a maximum soak time of 30 minutes. Fishers are required to complete live-capture training before participating in this fishery. Typically, only hatchery coho and Chinook may be retained.

Management: This is a limited entry fishery, but permits are transferable if certain requirements are met. The fishery is managed by the states of Oregon and Washington within the Columbia River Compact process. Harvest limits are based on annual run sizes, ESA-take limits, hatchery escapement needs, and State policies directing sport-commercial sharing of the resource. Therefore, management occurs in coordination with the Pacific Fisheries Management Council process and take limits are set by NMFS. Chinook and coho salmon are the primary species harvested but shad and white sturgeon (when authorized) may also be harvested and sold. The harvest of steelhead, chum, and green sturgeon is prohibited.

Response: NMFS thanks WDFW for their review of the draft fishery description for the Category III WA/OR Lower Columbia River (includes tributaries) drift gillnet fishery. Based on the information provided by WDFW, NMFS revises the name of this fishery to the “WA/OR Lower Columbia River (includes tributaries) drift net fishery” and incorporates the revised fishery description proposed by WDFW.

Comment 6: WDFW recommends NMFS revise the name of the Category III “WA/OR Lower Columbia River salmon seine” fishery to the “WA/OR Lower Columbia River emerging commercial” fishery. They also recommend revising the fishery description published in the proposed LOF (87 FR 55348; September 9, 2022) as follows.

Distribution: Because the primary purpose of this Emerging Commercial Fishery would be to reduce the abundance of hatchery-origin fall Chinook and coho, the primary fishing area would be in commercial Zones 1-3 of the Lower Columbia River (mouth upstream to river mile 80). The season would likely occur from late-August into October, coinciding with Chinook and coho run timing.

Gear Description: Specifics pertaining to gear configuration of beach seines, purse seines, and pound nets in the Lower Columbia River Emerging Commercial Fishery is one area that requires experimentation as the fishery takes place to address issues related to bycatch, release mortality rates, and economics that complicate implementation. All three gears are legal for commercial use in Oregon and can be used in an Emerging Commercial Fishery in Washington.

Management: WDFW and Oregon Department of Fish and Wildlife are jointly managing this limited-entry fishery via the Columbia River Compact process. An Emerging Fishery license and Experimental Fishery Permit from Washington or an Experimental Gear Permit from Oregon will be needed to participate. To date, these gears have been primarily utilized in a research or limited commercial setting with an Emerging Commercial Fishery limited to 4 to 10 fishers using beach and purse seines in the fall of 2014-2016. An agency observer will be required while fishing is conducted.

Response: NMFS thanks WDFW for their review of the fishery descriptions provided as part of the proposed 2023 LOF. We note that the fishery name and description revisions proposed by WDFW include reference to pound nets, which is a gear type that has not been previously associated with any West Coast commercial fishery on the LOF. As a result, NMFS would like to collect additional information about the use of pound nets in the Lower Columbia River before revising the name and/or fishery description of salmon fisheries in the Lower Columbia River. After collecting additional information, NMFS will reconsider the comments provided by WDFW in a future proposed LOF. In the interim, NMFS notes that an eligible commercial fishery not specifically identified on the LOF, including commercial fisheries permitted by the States of Washington and/or Oregon that may include use of pound nets in the Lower Columbia River, is deemed to be a Category II fishery until the next LOF is published (50 CFR 229.2).

Comment 7: ME DMR and MLA reiterate previous comments that the Maine state waters trap/pot fishery should be separated out from the broader Category I Northeast/Mid-Atlantic American lobster trap/pot fishery and classified as a separate and independent Category II fishery. Both ME DMR and MLA cite the rarity of North Atlantic right whales in Maine state waters, lack of attributed right whale entanglements in the Maine lobster fishery in over 15 years, the implementation of additional risk reduction measures via the recent final rule amending the Atlantic Large Whale Take Reduction Plan (ALWTRP), and the ability to differentiate itself from other trap/pot fisheries with gear modifications and monitoring unique to the state of Maine.

ME DMR and MLA note that weak point requirements do not vary by zone in Maine state waters. In May 2022, ME state regulations began requiring that all buoy lines in exempt waters and the sliver area (area between the exemption line and the 3-mile line) have a 1700 pounds (lb) weak insertion 50 percent of the way down the vertical line, or approved 1700 lb breaking strength line in the top 50 percent of the vertical line. They also state that the state of Massachusetts requires additional weak points in vertical lines longer than 120 feet (ft), the same weak point configuration that Maine requires is also required in Massachusetts state waters.

Both commenters also state that since September 2020, a purple state specific gear marking is required to differentiate Maine trap/pot gear from the rest of the fishery. In addition, the ALWTRP requires a Federal green mark. These Maine state marking requirements differentiated the state fishery from the rest of the Category I Northeast/Mid-Atlantic American lobster trap/pot fishery.

They state that the final rule for the 2022 LOF asserted the Maine state lobster trap/pot fishery could not be reclassified as a Category II fishery because it cannot be ruled out as the cause for recent right whale entanglements where gear had been recovered, as that recovered gear was found with red tracers indicating the gear came from the ALWTRP Northern Inshore Trap/Pot fishery that overlaps Maine, New Hampshire, and Massachusetts state waters. ME DMR and MLA note that prior to 2020 there were no gear marking requirements in the Maine exempted waters. Therefore, recent entanglements were not a result of gear set in Maine exempt waters, which is a significant portion of Maine state waters.

Lastly, ME DMR and MLA states that part of NMFS' justification for reclassifying the MA mixed species trap/pot fishery as a Category II fishery was due to the extensive North Atlantic right whale monitoring in MA. In 2020, NMFS Northeast Fisheries Science Center, deployed 8 passive acoustic recorders in Maine state waters. The commenters state that from January 2020 through June 2021 right whales were only detected on 6 days at three locations. They also note that the passive acoustic monitors will remain in their locations for at least the next three years. Maine is also undertaking additional efforts to detect right whales in Maine waters: including acoustic glider projects and broad scale aerial surveys. Therefore, the Maine state waters lobster trap/pot fishery meets the requirements for extensive monitoring and should be reclassified as a Category II fishery.

Response: This comment has been addressed previously (see 87 FR 23122; April 19, 2022). As stated in the final LOF for 2022 (87 FR 23122; April 19, 2022), the state of Massachusetts has made significant changes to their trap/pot regulations, including seasonal closures and gear modifications. These changes differentiate the Massachusetts state waters' trap/pot fishery from the Category I Northeast/Mid-Atlantic American lobster trap/pot and Category II Atlantic mixed species trap/pot fisheries.

On the 2022 LOF, NMFS classified Category II MA mixed species trap/pot fishery based on the regulatory definition (50 CFR 229.2) of a Category II fishery. The classification of the Category II Massachusetts mixed species trap/pot fishery was based on the consideration of several state regulations, which were implemented prior to the 2022 fishing season. Massachusetts implemented extensive seasonal time-area closures that spatially and temporally expanded the Massachusetts Restricted Area to significantly reduce the co-occurrence of the fishery with North Atlantic right whales. Additionally, in Massachusetts state waters, gear requirements include the following: (1) all commercial trap fishermen to fish buoy lines that break when exposed to 1,700 lbs (771 kilograms (kg)) of tension, which can be accomplished through the use of weak rope or weak insertions at 60 ft (18 meters (m)) intervals along the top 75 percent of the buoy line; (2) All commercial trap fishermen to fish buoy lines with a maximum diameter of 3/8 inch (9.5 millimeters (mm)); and (3) state-specific gear marks on all vertical lines. Marks must be red in color, at least 2 ft in length, and spaced no more than 60 ft (18 m) apart. These gear markings are distinct from those used in other states that are different colors, shorter in length, fewer in number and more widely-spaced. As noted in the 2022 LOF final rule (87 FR 23122; April 19, 2022), these combined management measures are supported by extensive monitoring of North Atlantic right whale populations through state and Federal aerial survey effort over Massachusetts' waters. This survey effort is enhanced by additional sighting and entanglement reporting that is gathered from a widespread network of visual observers. These collective measures set this fishery apart from the broader Category I Northeast/Mid-Atlantic American lobster trap/pot, and reduce its risk to North Atlantic right whales.

To separate a Category I fishery into a new fishery due to new regulatory measures, that new fishery should significantly reduce the risk of entanglement of the stock driving the Category I classification with sufficient gear marking to distinguish it from other fisheries. NMFS acknowledges that all lobster and Jonah crab trap/pot fisheries have implemented regulatory measures to reduce risk of entanglement to North Atlantic right whales under the new ALWTRP regulations finalized in 2021 (86 FR 51970; September 17, 2021).

NMFS also recognizes that the state of Maine has expanded acoustic monitoring and commenced visual surveys for marine mammals. However, cumulatively, these current efforts are not sufficient to designate the Maine state lobster fishery as a distinct fishery. Although the state of Maine has initiated monitoring efforts, data are limited in scope. Acoustic monitoring is valuable and indeed confirms that North Atlantic right whales are using Maine waters (NEFSC, 2022; PACM 2022). However, acoustic data cannot inform whale density or abundance estimates, and can only detect the presence of whales if they are vocally active while in the range of the monitoring devices (NEFSC 2022). Detection further varies by species and with physical oceanographic properties and ambient noise (Van Parijs et al., 2021). Detailed information on the distribution and habitat use of North Atlantic right whales is currently lacking, particularly in coastal Maine, and these complex patterns cannot be understood from limited acoustic data and only one month of recent visual surveys. Acoustic monitoring only indicates that North Atlantic right whales are present and vocalizing during the period of surveillance and cannot quantify the abundance of North Atlantic right whales. Ongoing acoustic monitoring plus other surveillance methods, such as long-term visual surveys, will help us better understand North Atlantic right whale distribution and habitat use in Maine waters. Fiscal Year 2023 Congressional appropriations included dedicated funding for improving monitoring in the Gulf of Maine.

Increased visual survey effort can additionally contribute to the collection of entanglement information. Although entanglements are the primary cause of M/SI of large whales, including North Atlantic right whales: (1) exact entanglement locations are infrequently identified (NMFS 2021); (2) the majority of mortalities incidental to gear entanglement are undetected (Pace et al., 2021); and (3) gear is rarely retrieved from an entanglement or attributed to a fishery or gear type (NMFS 2021). Confirmed large whale entanglements have recently occurred in Maine waters, indicated by purple gear markings (4 minke and 3 humpback whales since 2020). It is not possible to determine the origin of prior North Atlantic right whale entanglement cases where no gear was collected or directly observed, or where the retrieved gear was not marked. Therefore, the lack of attributed North Atlantic right whale entanglement in particular areas does not necessarily mean entanglement did not occur there.

For the aforementioned reasons, at this time, NMFS retains the fishery as defined. As we continue to gather more data on whale occurrence and entanglements, NMFS will evaluate whether splitting out the Maine state waters trap/pot fishery from the broader Category I Northeast/Mid-Atlantic American lobster trap/pot fishery is appropriate.

Based on public comment, NMFS renames the Category III WA/OR Lower Columbia River (includes tributaries) drift gillnet fishery to the Category III WA/OR Lower Columbia River (includes tributaries) drift net fishery.

The following summarizes changes to the LOF for 2023, including the classification of fisheries, fisheries listed, the estimated number of vessels/persons in a particular fishery, and the species and/or stocks that are incidentally killed or injured in a particular fishery. NMFS reclassifies one fishery in the LOF for 2023. NMFS also makes changes to the estimated number of vessels/persons and list of species and/or stocks killed or injured in certain fisheries. The classifications and definitions of U.S. commercial fisheries for 2023 are identical to those provided in the LOF for 2022, with the changes discussed below. State and regional abbreviations used in the following paragraphs include: AK (Alaska), BBES (Barataria Bay Estuarine System), BSAI (Bering Sea, Aleutian Island), CA (California), FL (Florida), Gulf of Alaska (GOA), HI (Hawaii), OR (Oregon), and WA (Washington).

NMFS reclassifies the Category III Hawaii offshore pen culture fishery to Category II fishery.

NMFS renames the Category III CA set gillnet (mesh size <3.5 in) fishery to the CA herring set gillnet fishery.

NMFS renames the Category III CA pelagic longline fishery to the West Coast pelagic longline fishery.

NMFS updates the estimated number of vessels/persons in the Pacific Ocean (Table 1) as follows:

• HI deep-set longline fishery from 143 to 150 vessels/persons;

• HI shallow-set longline fishery from 11 to 14 vessels/persons;

• American Samoa longline fishery from 13 to 18 vessels/persons;

• HI shortline fishery from 5 to 11 vessels/persons;

• HI inshore gillnet fishery from 29 to 27 vessels/persons;

• HI lift net fishery from 15 to 14 vessels/persons;

• HI throw net, cast net fishery from 15 to 16 vessels/persons;

• HI seine net fishery from 17 to 16 vessels/persons;

• American Samoa tuna troll from 13 to 3 vessels/persons;

• HI troll fishery from 1,380 to 1,293 vessels/persons;

• HI rod and reel fishery from 237 to 246 vessels/persons;

• Commonwealth of the Northern Mariana Islands tuna troll fishery from 40 to 9 vessels/persons;

• Guam tuna troll fishery from 398 to 465 vessels/persons;

• HI kaka line fishery from 5 to 6 vessels/persons;

• HI vertical line fishery from none recorded to 5 vessels/persons;

• HI crab trap fishery from 4 to 3 vessels/persons;

• HI lobster trap fishery from none recorded to less than 3 vessels/persons;

• HI crab net fishery from none recorded to 3 vessels/persons;

• HI kona crab loop net fishery from 20 to 24 vessels/persons;

• American Samoa bottomfish handline fishery from 9 to 6 vessels/persons;

• Commonwealth of the Northern Mariana Islands bottomfish fishery from 11 to 12 vessels/persons;

• Guam bottomfish fishery from 67 to 84 vessels/persons;

• HI bottomfish handline fishery from 385 to 404 vessels/persons;

• HI inshore handline fishery from 206 to 192 vessels/persons;

• HI pelagic handline fishery from 300 to 311 vessels/persons;

• HI bullpen trap fishery from none recorded to less than 3 vessels/persons;

• HI black coral diving fishery from none recorded to less than 3 vessels/persons;

• HI handpick fishery from 25 to 28 vessels/persons;

• HI lobster diving fishery from 12 to 10 vessels/persons;

• HI spearfishing fishery from 82 to 79 vessels/persons;

• CA nearshore finfish trap from 93 to 42 vessels/persons; and

• HI aquarium collecting fishery from 34 to 39 vessels/persons.

NMFS corrects an administrative error and adds the HI stock of fin whale and Guadalupe fur seal to the list of species/stocks incidentally killed or injured in the Category II HI shallow-set longline fishery.

NMFS adds the CA breeding stock of Northern elephant seal to the list of species/stocks incidentally killed or injured in the Category II CA Dungeness crab pot fishery.

NMFS adds the Western U.S. stock of Steller sea lion to the list of species/stocks incidentally killed or injured in the Category II AK Gulf of Alaska sablefish longline fishery.

NMFS adds the North Pacific stock of Pacific white-sided dolphin to the list of species/stocks incidentally killed or injured in the Category II AK Bering Sea Aleutian Islands pollock trawl fishery.

NMFS removes the Central North Pacific stock of humpback whale from the list of species/stocks incidentally killed or injured in the Category I HI deep-set longline fishery.

NMFS removes the unknown stock of short-finned pilot whale from the list of species/stocks incidentally killed or injured in the Category II American Samoa longline fishery.

NMFS revises marine mammal stock names on the list of species/stocks incidentally killed or injured for consistency with the current stock names in the SARs as follows:

• Spotted seal, AK to spotted seal, Bering;

• Harbor seal, Bering Sea to harbor seal, Bristol Bay; and

• Spotted seal, AK to spotted seal, Bering.

Following consultation with the U.S. Fish and Wildlife Service, NMFS also revises marine mammal stock names on the list of species/stocks incidentally killed or injured for consistency with the current stock names in the SARs as follows:

• Sea otter, CA to southern sea otter, CA; Category II AK Kodiak Salmon Set Gillnet Fishery

• Sea otter, Southwest AK to northern sea otter, Southwest AK;

• Sea otter, South central AK to northern sea otter, South Central AK;

• Category II AK Prince William Sound Salmon Drift Gillnet Fishery Sea otter, South Central AK to northern sea otter, South Central AK;

• Southern sea otter to southern sea otter, CA, and

• Sea otter, South central AK to northern sea otter, South Central AK.

NMFS adds the MS Sound, Lake Borgne, Bay Boudreau stock of bottlenose dolphin to the list of species/stocks incidentally killed or injured in the Category II Gulf of Mexico gillnet fishery.

NMFS adds the Barataria Bay Estuarine System (BBES) stock of bottlenose dolphin to the list of species/stocks incidentally killed or injured in the Category II Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl fishery.

NMFS adds both the Caloosahatchee River and Waccasassa Bay, Withlacoochee Bay, Crystal Bay stocks of bottlenose dolphin to the list of species/stocks incidentally killed or injured in the Category III Gulf of Mexico blue crab trap/pot fishery.

NMFS adds the Galveston Bay, East Bay, Trinity Bay stock of bottlenose dolphin to the list of species/stocks incidentally killed or injured in the Category III U.S. Atlantic, Gulf of Mexico trotline fishery.

NMFS corrects an administrative error and removes the Northern Gulf of Mexico coastal stock of bottlenose dolphin from the list of species/stocks incidentally killed or injured in the Category II Southeastern U.S. Atlantic, Gulf of Mexico stone crab fishery.

NMFS corrects an administrative error and removes the Eastern Gulf of Mexico coastal stock of bottlenose dolphin from the list of species/stocks incidentally killed or injured in the Category III FL West Coast sardine purse seine fishery.

NMFS updates the estimated number of HSFCA permits for high seas fisheries (Table 3) as follows:

• Atlantic highly migratory species longline fishery from 39 to 30 HSFCA permits;

• Western Pacific pelagic (HI deep-set component) longline fishery from 143 to 150 HSFCA permits;

• Pacific highly migratory species drift gillnet fishery from 5 to 3 HSFCA permits;

• Atlantic highly migratory species trawl fishery from 1 to 0 HSFCA permits;

• Western and Central Pacific Ocean tuna purse seine fishery from 20 to 34 HSFCA permits;

• Western Pacific pelagic purse seine fishery from 1 to 0 HSFCA permits;

• South Pacific albacore troll longline fishery from 6 to 8 HSFCA permits;

• Western Pacific pelagic (HI shallow-set component) longline fishery from 11 to 14 HSFCA permits;

• Atlantic highly migratory species handline/pole and line fishery from 1 to 0 HSFCA permits;

• Pacific highly migratory species handline/pole and line fishery from 44 to 45 HSFCA permits;

• South Pacific albacore troll handline/pole and line fishery from 9 to 7 HSFCA permits;

• Western Pacific pelagic handline/pole and line fishery from 5 to 1 HSFCA permits;

• South Pacific albacore troll fishery from 20 to 24 HSFCA permits;

• Western Pacific pelagic troll fishery from 6 to 7 HSFCA permits;

• Pacific highly migratory species longline fishery from 111 to 127 HSFCA permits;

• Pacific highly migratory species purse seine fishery from 5 to 2 HSFCA permits;

• Northwest Atlantic trawl fishery from 4 to 3 HSFCA permits; and

• Pacific highly migratory species troll fishery from 107 to 93 HSFCA permits.

NMFS corrects an administrative error and adds the HI stock of rough-toothed dolphin to the list of species/stocks incidentally killed or injured in the Category I Western Pacific Pelagic longline fishery (HI deep-set component).

NMFS removes the Central North Pacific stock of humpback whale from the list of species/stocks incidentally killed or injured in the Category I Western Pacific Pelagic longline fishery (HI deep-set component).

NMFS removes three stocks from the list of species/stocks incidentally killed or injured in the Category II Western Pacific Pelagic longline fishery (HI shallow-set component). The three stocks are: (1) Ginkgo-toothed beaked whale, (2) CA breeding stock of Northern elephant seal and (3) CA/OR/WA stock of short-beaked common dolphin.

NMFS removes the unknown stock of humpback whale from the list of species/stocks incidentally killed or injured in the Category II Western and Central Pacific Ocean tuna purse seine fishery.

NMFS revises the following marine mammal stock names to “unknown” stock on the list of species/stocks incidentally killed or injured in the Category II Western and Central Pacific Ocean tuna purse seine fishery based on more recent observer data:

The following tables set forth the list of U.S. commercial fisheries according to their classification under section 118 of the MMPA. Table 1 lists commercial fisheries in the Pacific Ocean (including Alaska), Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean, Table 3 lists commercial fisheries on the high seas, and Table 4 lists fisheries affected by TRPs or TRTs.

In Tables 1 and 2, the estimated number of vessels or persons participating in fisheries operating within U.S. waters is expressed in terms of the number of active participants in the fishery, when possible. If this information is not available, the estimated number of vessels or persons licensed for a particular fishery is provided. If no recent information is available on the number of participants, vessels, or persons licensed in a fishery, then the number from the most recent LOF is used for the estimated number of vessels or persons in the fishery. NMFS acknowledges that, in some cases, these estimates may be inflations of actual effort. For example, the State of Hawaii does not issue fishery-specific licenses, and the number of participants reported in the LOF represents the number of commercial marine license holders who reported using a particular fishing gear type/method at least once in a given year, without considering how many times the gear was used. For these fisheries, effort by a single participant is counted the same whether the fisherman used the gear only once or every day. In the Mid-Atlantic and New England fisheries, the numbers represent the potential effort for each fishery, given the multiple gear types for which several state permits may allow. Changes made to Mid-Atlantic and New England fishery participants will not affect observer coverage or bycatch estimates, as observer coverage and bycatch estimates are based on vessel trip reports and landings data. Tables 1 and 2 serve to provide a description of the fishery's potential effort (state and Federal). If NMFS is able to gather more accurate information on the gear types used by state permit holders in the future, the numbers will be updated to reflect this change. For additional information on fishing effort in fisheries found on Table 1 or 2, contact the relevant regional office (contact information included above in the section: Where can I find more information about the LOF and the MMAP?).

For high seas fisheries, Table 3 lists the number of valid HSFCA permits currently held. Although this likely overestimates the number of active participants in many of these fisheries, the number of valid HSFCA permits is the most reliable data on the potential effort in high seas fisheries at this time. As noted previously, the number of HSFCA permits listed in Table 3 for the high seas components of fisheries that also operate within U.S. waters does not necessarily represent additional effort that is not accounted for in Tables 1 and 2. Many vessels holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in Tables 1 and 2.

Tables 1, 2, and 3 also list the marine mammal species and/or stocks incidentally killed or injured (seriously or non-seriously) in each fishery based on SARs, injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fishermen self-reports ( i.e., MMAP reports), and anecdotal reports. The best available scientific information included in these reports is based on data through 2019. This list includes all species and/or stocks known to be killed or injured in a given fishery, but also includes species and/or stocks for which there are anecdotal records of a mortality or injury. Additionally, species identified by logbook entries, stranding data, or fishermen self-reports ( i.e., MMAP reports) may not be verified. In Tables 1 and 2, NMFS has designated those species/stocks driving a fishery's classification ( i.e., the fishery is classified based on mortalities and serious injuries of a marine mammal stock that are greater than or equal to 50 percent (Category I), or greater than 1 percent and less than 50 percent (Category II), of a stock's PBR) by a “1” after the stock's name.

In Tables 1 and 2, there are several fisheries classified as Category II that have no recent documented mortalities or serious injuries of marine mammals, or fisheries that did not result in a mortality or serious injury rate greater than 1 percent of a stock's PBR level based on known interactions. NMFS has classified these fisheries by analogy to other Category I or II fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, as discussed in the final LOF for 1996 (60 FR 67063; December 28, 1995), and according to factors listed in the definition of a “Category II fishery” in 50 CFR 229.2 ( i.e., fishing techniques, gear types, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fishermen reports, stranding data, and the species and distribution of marine mammals in the area). NMFS has designated those fisheries listed by analogy in Tables 1 and 2 by adding a “2” after the fishery's name.

There are several fisheries in Tables 1, 2, and 3 in which a portion of the fishing vessels cross the EEZ boundary and therefore operate both within U.S. waters and on the high seas. These fisheries, though listed separately on Table 1 or 2 and Table 3, are considered the same fisheries on either side of the EEZ boundary. NMFS has designated those fisheries in each table with an asterisk (*) after the fishery's name.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) at the proposed rule stage that this rule would not have a significant economic impact on a substantial number of small entities. No comments were received on that certification, and no new information has been discovered to change that conclusion. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

This rule contains existing collection-of-information (COI) requirements subject to the Paperwork Reduction Act and would not impose additional or new COI requirements. The COI for the registration of individuals under the MMPA has been approved by the OMB under OMB Control Number 0648-0293 (0.15 hours per report for new registrants). The requirement for reporting marine mammal mortalities or injuries has been approved by OMB under OMB Control Number 0648-0292 (0.15 hours per report). These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the COI. Send comments regarding these reporting burden estimates or any other aspect of the COI, including suggestions for reducing burden, to NMFS (see ADDRESSES ). You may also submit comments on these or any other aspects of the collection of information at https://www.reginfo.gov/public/do/PRAMain.

Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with a COI, subject to the requirements of the Paperwork Reduction Act, unless that COI displays a currently valid OMB control number.

This rule has been determined to be not significant for the purposes of Executive Orders 12866 and 13563.

In accordance with the Companion Manual for NOAA Administrative Order (NAO) 216-6A, NMFS determined that publishing this LOF qualifies to be categorically excluded from further NEPA review, consistent with categories of activities identified in Categorical Exclusion G7 (“Preparation of policy directives, rules, regulations, and guidelines of an administrative, financial, legal, technical, or procedural nature, or for which the environmental effects are too broad, speculative or conjectural to lend themselves to meaningful analysis and will be subject later to the NEPA process, either collectively or on a case-by-case basis”) of the Companion Manual and we have not identified any extraordinary circumstances listed in Chapter 4 of the Companion Manual for NAO 216-6A that would preclude application of this categorical exclusion. If NMFS takes a management action, for example, through the development of a TRP, NMFS would first prepare an Environmental Impact Statement or Environmental Assessment, as required under NEPA, specific to that action.

This rule would not affect species listed as threatened or endangered under the ESA or their associated critical habitat. The impacts of numerous fisheries have been analyzed in various biological opinions, and this rule will not affect the conclusions of those opinions. The classification of fisheries on the LOF is not considered to be a management action that would adversely affect threatened or endangered species. If NMFS takes a management action, for example, through the development of a TRP, NMFS would consult under ESA section 7 on that action.

This rule would have no adverse impacts on marine mammals and may have a positive impact on marine mammals by improving knowledge of marine mammals and the fisheries interacting with marine mammals through information collected from observer programs, stranding and sighting data, or take reduction teams.

This rule would not affect the land or water uses or natural resources of the coastal zone, as specified under section 307 of the Coastal Zone Management Act.

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

The A season allowance of the 2023 Pacific cod TAC apportioned to catcher vessels greater than or equal to 50 feet (15.2 m) length overall using HAL gear in the Central Regulatory Area of the GOA is 618 metric tons (mt) as established by the final 2023 and 2024 harvest specifications for groundfish in the GOA (88 FR 13238, March 2, 2023).

In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the A season allowance of the 2023 Pacific cod TAC apportioned to catcher vessels greater than or equal to 50 feet (15.2 m) length overall using HAL gear in the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 528 mt and is setting aside the remaining 90 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for catcher vessels greater than or equal to 50 feet (15.2 m) length overall using HAL gear in the Central Regulatory Area of the GOA.

While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by catcher vessels greater than or equal to 50 feet (15.2 m) length overall using HAL gear in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 15, 2023.

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