Rule2023-06337
International Fisheries; Pacific Tuna Fisheries; 2022-2024 In-Season Action Announcement Procedures for Commercial Pacific Bluefin Tuna in the Eastern Pacific Ocean; Correction
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 28, 2023
Effective
March 28, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS is correcting a final rule for in-season action announcement procedures for commercial Pacific bluefin tuna (PBF) that appeared in the Federal Register on January 27, 2023. In that rule, NMFS did not address a public comment because of an error on the deadline for comment submissions. This correction responds to the comment, which does not change the action in the January 27 final rule.
Full Text
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<title>Federal Register, Volume 88 Issue 59 (Tuesday, March 28, 2023)</title>
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[Federal Register Volume 88, Number 59 (Tuesday, March 28, 2023)]
[Rules and Regulations]
[Pages 18256-18258]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-06337]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 230119-0019]
RIN 0648-BL59
International Fisheries; Pacific Tuna Fisheries; 2022-2024 In-
Season Action Announcement Procedures for Commercial Pacific Bluefin
Tuna in the Eastern Pacific Ocean; Correction
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; correction.
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SUMMARY: NMFS is correcting a final rule for in-season action
announcement procedures for commercial Pacific bluefin tuna (PBF) that
appeared in the Federal Register on January 27, 2023. In that rule,
NMFS did not address a public comment because of an error on the
deadline for comment submissions. This correction responds to the
comment, which does not change the action in the January 27 final rule.
DATES: Effective March 28, 2023.
FOR FURTHER INFORMATION CONTACT: Celia Barroso, NMFS, 562-432-1850,
<a href="/cdn-cgi/l/email-protection#145771787d753a567566667b677b547a7b75753a737b62"><span class="__cf_email__" data-cfemail="3a795f56535b14785b48485549557a54555b5b145d554c">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: On January 27, 2023, NMFS published a final
rule on in-season action announcement procedures for PBF (88 FR 5273).
Due to an error on the deadline for comment submissions, NMFS did not
see, and therefore did not respond, to a public comment submitted
during the public comment period of the proposed rule. Upon learning of
this error, NMFS immediately took steps to issue this correction to the
final rule that addresses the comment.
Classification
The NMFS Assistant Administrator has determined that this final
rule is consistent with the Tuna Conventions Act and other applicable
laws.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
Section 553(b)(B) of the Administrative Procedure Act (APA)
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.''
The Assistant Administrator for Fisheries determined that there is good
cause to waive prior notice and an opportunity for public comment on
this action because this action is simply to correct an inadvertent
error in the January 27 final rule (88 FR 5273) that would not change
the final action. Immediate correction of the error is necessary to
adequately respond to public comments received during the proposed
rulemaking stage in accordance with the APA.
Under section 553(d) of the APA, an agency must delay the effective
date of regulations for 30 days after the date of publication, unless
the agency finds good cause to make the regulations effective sooner.
For the same reasons stated above, the Assistant Administrator for
Fisheries has determined good cause exists to waive the 30-day delay in
the date of effectiveness. This correction only addresses a public
comment but does not change the action in the January 27 final rule,
which became effective on February 27, 2023, and NMFS does not
anticipate in-season action on PBF until spring 2023 at the earliest.
Delaying effectiveness of the January 27 final rule due to this
correction would result in confusion among fishery participants and
increase the risk of exceeding PBF catch limits, and would therefore be
contrary to public interest.
The Regulatory Flexibility Act, 5 U.S.C. 603 and 604, requires an
agency to prepare an initial and a final regulatory flexibility
analysis whenever an agency is required by section 553 of the APA or
any other law to publish a general notice of proposed rulemaking.
Because NMFS found good cause under section 553(b)(3)(B) of the APA to
forgo publication of a notice of proposed rulemaking, the regulatory
flexibility analyses described in 5 U.S.C. 603 and 604 are not required
for this rulemaking.
Paperwork Reduction Act
This final rule contains no collection of information requirements
under the Paperwork Reduction Act of 1995.
Correction
In FR Rule Doc. 2023-01447 (88 FR 5273), appearing in the Federal
Register on Friday, January 27, 2023, the following corrections are
made:
1. On page 5273, in the second column, in the second paragraph, the
last sentence is revised to read, ``NMFS received two public comments
on the proposed rule, which are addressed later in this preamble.''
2. On page 5273, in the third column, above the Classification
section, a new section is added to read as follows:
Public Comments and Responses
NMFS received two public comments on the proposed rule. One
comment, from an individual commenter, voiced general support for
management actions to conserve Pacific bluefin tuna (PBF). The other
comment, from the Center for Biological Diversity, asserted that NMFS
has failed to consider the impacts to protected species of the proposed
rule and asked NMFS to delay publication of the final rule until an
updated Endangered Species Act (ESA) consultation on the impacts of the
drift gillnet fleet on humpback whales is ``complete.'' NMFS has
considered the comment and will not change the final rule to implement
the previously described revision in regulations. The comment included
two main components, and NMFS' response to each component is below.
Component 1: The commenter asserts that, because drift gillnet
catches of PBF have increased, NMFS mischaracterized these catches as
``incidental.'' The commenter also states that this is illustrated by
NMFS characterizing the purse seine fleet as targeting PBF when the
majority of the purse seine-caught landings, or tuna landings, are not
PBF.
NMFS Response to Component 1: NMFS acknowledges the drift gillnet
fleet off of the West Coast catches and retains various marketable
species, including PBF. Drift gillnet has a long history of catching
PBF incidentally, and it has always been a marketable species that
contributes to drift gillnet revenues (see Pacific Fisheries
Information Network [PacFIN] Apex Reports Highly Migratory Species SAFE
Reports 003 and 009 at <a href="https://pacfin.psmfc.org/">https://pacfin.psmfc.org/</a>). PBF have become more
abundant in U.S. waters in recent years and, therefore, are more likely
to be caught. Additionally, this coincides with a reduction in landings
(PacFIN) in recent years and anecdotal evidence from fishermen that
swordfish were locally less abundant off California in 2021 and 2022,
which may be the cause for the landings composition presented in the
comment.
[[Page 18257]]
The final rule had two parts: (1) amend the in-season action
announcement procedures to allow for quicker in-season action that
would improve NMFS' ability to remain within the internationally-agreed
PBF catch limit, and (2) disincentivize regulatory discards by allowing
fish already on board to be landed within 24 hours of any in-season
actions to reduce trip limits.
Regarding the second part, only the purse seine fleet is likely to
be affected. The existing trip limit scheme in accordance with a final
rule published on August 5, 2022 (87 FR 47939) that is applicable to
2022-2024 reduces the trip limit as cumulative catches in the year
reach thresholds. The lowest trip limit in 2023-2024 will be 3 metric
tons, after which the next threshold reached would result in the
fishery closing. In recent years, no drift gillnet (DGN) vessel has
caught more than 3 mt of PBF in a single trip. Therefore, the component
allowing 24 hours to land fish after in-season actions to reduce trip
limits would not apply to DGN because that fleet would only be impacted
by the in-season action to close the fishery. Furthermore, as noted in
the proposed rule, allowing vessels to land or transship fish on board
for 24 hours after the in-season action notice is consistent with the
policy in the event of a fishery closure, which has been in place since
2014, and reduces the likelihood of regulatory discards. NMFS will
consider using a different term other than ``incidental'' to describe
the DGN PBF fishing activities in future rulemakings; however, any
changes in the use of the term will not impact implementation of the
final rule.
Regarding the catch composition of the coastal purse seine fleet,
NMFS notes that catches of PBF have been restricted due to an
international rebuilding plan, whereas there are no international catch
limits for yellowfin tuna. There are periods where the coastal purse
seine fleet chooses to target species other than PBF (e.g., yellowfin
tuna, market squid) to make a larger profit, and it is not uncommon for
a purse seine vessel to catch more yellowfin tuna than PBF on a single
trip because NMFS has imposed restrictive trip limits for PBF.
Ultimately, the impacts of the rule will not change whether a fleet
targets PBF or catches and retains PBF incidentally because the trip
limits and in-season action procedures apply regardless of intention
when PBF was caught.
Component 2: The commenter argues that an ESA consultation is
necessary because the proposed rule ``could increase the time that
humpback whales co-occur with the California drift gillnet fishery, and
thus increase entanglement risk.'' The commenter notes that ``[t]he
proposed rule states that the intent behind the revised announcement
procedures is efficiency: `to allow for quicker in-season action in
part because the Pacific bluefin tuna fishery may catch a lot of the
catch limit in a short period of time.' '' The commenter goes on to
assert: ``A more efficient fishery--one that is managed to allow a lot
of Pacific bluefin tuna caught in a short period--is not necessarily
good for conservation. Specifically, indiscriminate fishing increases
the risk of entanglement for humpback whales. NMFS could reduce the
risk of entanglement of humpback whales by limiting the fishery well
before the vessels approach the bluefin tuna catch limits.''
NMFS response to Component 2: Contrary to the commenter's
suggestion, taking quicker in-season action will neither result in a
more efficient fishery in which a lot of PBF can be caught in a short
period, nor will it result in ``indiscriminate fishing'' that increases
the risk of entanglement for humpback whales. This final rule simply
increases NMFS' ability to take in-season action quickly to reduce trip
limits or close the fishery in a manner that aids the United States in
adhering to international catch limits while avoiding regulatory
discards.
With respect to the commenter's suggestion that NMFS could reduce
the risk of entanglement of humpback whales by limiting the fishery
well before vessels approach the catch limits, NMFS views this comment
as in part directed to the existing trip limit scheme applicable to
2022-2024 (87 FR 47939, August 5, 2022), as well as the announcement
procedures in the proposed rule (87 FR 70766, November 21, 2022). The
trip limit scheme was modeled on the management approach in 2021 (e.g.,
trip limits, quicker in-season action announcement, electronic landing
receipts). This was recommended by the Pacific Fishery Management
Council (PFMC) at its November 2021 meeting.
The PFMC recommendation and original proposed rule for 2022-2024
regulations intended to have quicker in-season action announcement
procedures to support operational flexibility and reduce the risk of
exceeding the internationally-agreed catch limits. NMFS proposed the
new in-season action procedures to adhere to the intent behind the
Council recommendation (87 FR 70766, November 21, 2022). Additional
history on the more recent approaches to managing PBF may be found in
the proposed rule for the 2021 regulations (86 FR 279, January 5, 2021)
and the proposed rule for the 2022-2024 regulations (87 FR 12409, March
4, 2022) for PBF. Among other things, these proposed rules explain that
relying solely on the Federal Register notice for in-season action
contributed to the United States exceeding its internationally-agreed
catch limit in 2017. Since then, NMFS implemented reduced trip limits
and, more recently, trip limits that reduce as cumulative catches for
the calendar year, quicker in-season action procedures, and a
requirement for PBF buyers to submit electronic landing receipts within
24 hours of a landing. Reducing trip limits or closing a fishery
earlier is outside the scope of this proposed rule because the
thresholds to take in-season action have already been implemented with
the August 5, 2022, final rule (87 FR 47939). While it is uncertain
whether the current characteristics of the PBF fishery will continue,
it is imperative we manage the fishery in a manner that improves NMFS'
ability to adhere to international catch limits.
3. On page 5273, in the third column, in the Classification
section, the paragraph under the header Economic Analyses is corrected
to read:
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration during the proposed rule stage that, for purposes of the
Regulatory Flexibility Act, this action would not have a significant
economic impact on a substantial number of small entities. The factual
basis for the certification was published in the proposed rule and is
not repeated here. No information received during the public comment
period changes the action from the proposed rule or NMFS' analysis. The
Center for Biological Diversity suggested that drift gillnet vessels
are incorrectly characterized as catching Pacific bluefin tuna
incidentally, however, whether characterized as incidentally catching
or targeting Pacific bluefin tuna in relatively small quantities does
not change the factual basis for the certification published.
Therefore, the initial certification published with the proposed rule--
that this rule is not expected to have a significant economic impact on
a substantial number of small entities--remains unchanged. As a result,
a regulatory flexibility analysis was not required and none was
prepared.
There are no other corrections to the final rule published on
January 27, 2023.
[[Page 18258]]
Dated: March 22, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2023-06337 Filed 3-27-23; 8:45 am]
BILLING CODE 3510-22-P
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