Rule2024-19196
International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Changes to Purse Seine Fish Aggregating Device Closure Periods
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
August 29, 2024
Effective
August 29, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
Under authority of the Western and Central Pacific Fisheries Convention Implementation Act (WCPFC Implementation Act), NMFS issues this final rule to shorten the duration of fish aggregating device (FAD) closure periods for the U.S. purse seine fishery. This action is necessary to satisfy the obligations of the United States under the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention), to which it is a Contracting Party.
Full Text
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<title>Federal Register, Volume 89 Issue 168 (Thursday, August 29, 2024)</title>
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[Federal Register Volume 89, Number 168 (Thursday, August 29, 2024)]
[Rules and Regulations]
[Pages 70120-70124]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-19196]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 240821-0223]
RIN 0648-BM86
International Fisheries; Western and Central Pacific Fisheries
for Highly Migratory Species; Changes to Purse Seine Fish Aggregating
Device Closure Periods
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: Under authority of the Western and Central Pacific Fisheries
Convention Implementation Act (WCPFC Implementation Act), NMFS issues
this final rule to shorten the duration of fish aggregating device
(FAD) closure periods for the U.S. purse seine fishery. This action is
necessary to satisfy the obligations of the United States under the
Convention on the Conservation and Management of Highly Migratory Fish
Stocks in the Western and Central Pacific Ocean (Convention), to which
it is a Contracting Party.
DATES: This rule is effective August 29, 2024.
ADDRESSES: Copies of supporting documents prepared for this final rule,
including the regulatory impact review (RIR), as well as the proposed
rule (89 FR 46352, May 29, 2024), are available via the Federal e-
rulemaking Portal, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (search for Docket ID
NOAA-NMFS-2024-0057). Those documents are also available from NMFS at
the following address: Sarah Malloy, Deputy Regional Administrator,
NMFS, Pacific Islands Regional Office (PIRO), 1845 Wasp Blvd., Building
176, Honolulu, HI 96818.
A final regulatory flexibility analysis (FRFA) prepared under
authority of the Regulatory Flexibility Act is included in the
``Classification'' section in SUPPLEMENTARY INFORMATION.
FOR FURTHER INFORMATION CONTACT: Rini Ghosh, NMFS PIRO, 808-725-5033.
SUPPLEMENTARY INFORMATION:
Background
On May 29, 2024, NMFS published a proposed rule in the Federal
Register (89 FR 46352) proposing to change the duration of FAD closure
periods for the U.S. purse seine fishery operating in the western and
central Pacific Ocean (WCPO). The 15-day public comment period for the
proposed rule closed on June 13, 2024.
This final rule is issued under the authority of the WCPFC
Implementation Act (16 U.S.C. 6901 et seq.), which authorizes the
Secretary of Commerce, in consultation with the Secretary of State and
the Secretary of the Department in which the United States Coast Guard
is operating (currently the Department of Homeland Security), to
promulgate such regulations as may be necessary to carry out the
obligations of the United States under the Convention, including the
decisions of the Commission for the Conservation and Management of
Highly Migratory Fish Stocks in the Western and Central Pacific Ocean
(WCPFC or Commission). The WCPFC Implementation Act further provides
that the Secretary of Commerce shall ensure consistency, to the extent
practicable, of fishery management programs administered under the
WCPFC Implementation Act and the Magnuson-Stevens Fishery Conservation
and Management Act (MSA; 16 U.S.C. 1801 et seq.), as well as other
specific laws (see 16 U.S.C. 6905(b)). The Secretary of Commerce has
delegated the authority to promulgate regulations under the WCPFC
Implementation Act to NMFS. A map showing the boundaries of the area of
application of the Convention (Convention Area), which comprises the
majority of the WCPO, can be found on the WCPFC website at:
<a href="http://www.wcpfc.int/doc/convention-area-map">www.wcpfc.int/doc/convention-area-map</a>.
This final rule implements specific provisions of a recent WCPFC
decision (Conservation and Management Measure (CMM) 2023-01,
``Conservation and Management Measure for Bigeye, Yellowfin and
Skipjack Tuna in the Western and Central Pacific Ocean''). The preamble
to the proposed rule provides background information on the Convention
and the Commission, the provisions that are being implemented in this
rule, and the basis for the regulations, which is not repeated here.
The Action
The specific elements of the final rule are detailed below.
In accordance with CMM 2023-01, the final rule shortens the
duration of the FAD prohibition period to extend from July 1 through
August 15 (instead of from July 1 through September 30, as previously
required) during each calendar year in the Convention Area between the
latitudes of 20[deg] N and 20[deg] S (inclusive of the exclusive
economic zones (EEZs) and high seas in the Convention Area and
excluding the area of overlap between the WCPFC and the Inter-American
Tropical Tuna Commission (IATTC)). Regarding the additional one-month
FAD prohibition period on the high seas in the Convention Area, the
final rule implements the high seas FAD prohibition period in December
in 2024 and during each calendar year thereafter.
As currently defined in 50 CFR 300.211, a FAD is ``any artificial
or natural floating object, whether anchored or not and whether
situated at the water surface or not, that is capable of aggregating
fish, as well as any object used for that purpose that is situated on
board a vessel or otherwise out of the water. The definition of FAD
does not include a vessel.'' Under this final rule, the regulatory
definition of a FAD will not change. Although the definition of a FAD
does not include a vessel, the restrictions during the FAD prohibition
periods include certain activities related to fish that have aggregated
in association with a vessel, or drawn by a vessel, as described below.
The prohibitions applicable to these FAD-related measures are in
existing regulations at 50 CFR 300.223(b)(1)(i)-
[[Page 70121]]
(v). Specifically, during the FAD prohibition periods in each calendar
year, owners, operators, and crew of fishing vessels of the United
States equipped with purse seine gear shall not do any of the following
activities in the Convention Area (excluding the area of overlap
between the WCPFC and IATTC) between 20[deg] N latitude and 20[deg] S
latitude:
(1) Set a purse seine around a FAD or within 1 nautical mile (1,852
meters) of a FAD;
(2) Set a purse seine in a manner intended to capture fish that
have aggregated in association with a FAD or a vessel, such as by
setting the purse seine in an area from which a FAD or a vessel has
been moved or removed within the previous 8 hours, setting the purse
seine in an area in which a FAD has been inspected or handled within
the previous 8 hours, or setting the purse seine in an area into which
fish were drawn by a vessel from the vicinity of a FAD or a vessel;
(3) Deploy a FAD into the water;
(4) Repair, clean, maintain, or otherwise service a FAD, including
any electronic equipment used in association with a FAD, in the water
or on a vessel while at sea, except that: a FAD may be inspected and
handled as needed to identify the FAD, identify and release
incidentally captured animals, un-foul fishing gear, or prevent damage
to property or risk to human safety; and a FAD may be removed from the
water and if removed may be cleaned, provided that it is not returned
to the water; or
(5) From a purse seine vessel or any associated skiffs, other
watercraft or equipment, submerge lights under water, suspend or hang
lights over the side of the purse seine vessel, skiff, watercraft or
equipment, or direct or use lights in a manner other than as needed to
illuminate the deck of the purse seine vessel or associated skiffs,
watercraft or equipment, to comply with navigational requirements, and
to ensure the health and safety of the crew.
These prohibitions do not apply during emergencies as needed to
prevent human injury or the loss of human life, the loss of the purse
seine vessel, skiffs, watercraft or aircraft, or environmental damage.
The final rule also makes a technical correction regarding the area
of application in 50 CFR 300.223(b)(3)(i) to explicitly state that the
requirements regarding activating FADs apply in the Convention Area.
The current regulatory text does not include the specific area of
application.
Comments and Responses
NMFS received one comment letter on the proposed rule. The American
Tunaboat Association (ATA), which represents owners and operators of
U.S. purse seine fishing vessels, expressed strong support for the
proposed rule. ATA also noted that though it currently prefers that the
high seas FAD closure occur in December in 2024, it is possible that
the fleet's preference could change in the future. In addition, ATA
noted that the Commission's decision in CMM 2023-01 to reduce the FAD
closures was precautionary in reducing the existing FAD closures by
one-half. According to ATA, during the discussion at the Commission
meeting, there was a strong argument that the FAD closures could be
eliminated in their entirety without jeopardizing the health of the
marine resources in question.
NMFS acknowledges the comment from ATA and the information
provided. NMFS is finalizing the high seas closure in December for 2024
and each subsequent year, as proposed. NMFS is implementing the
Commission's decision as specified in CMM 2023-01 to fulfill the
obligations of the United States under the Convention and has
considered available biological and scientific information.
Changes From the Proposed Rule
There are no changes to the proposed rule in this final rule.
Classification
The Administrator, Pacific Islands Region, NMFS, has determined
that this action is consistent with the WCPFC Implementation Act and
other applicable laws.
Administrative Procedure Act
Consistent with 5 U.S.C. 553(d)(1), this final rule will become
effective immediately upon publication because it is a substantive rule
which relieves a regulatory restriction (i.e., shortens existing purse
seine FAD closure periods).
Coastal Zone Management Act (CZMA)
NMFS determined that this action is consistent to the maximum
extent practicable with the enforceable policies of the approved
coastal management program of American Samoa, the CNMI, Guam, and the
State of Hawaii. Determinations to Hawaii and each of the Territories
were submitted on March 8, 2024, for review by the responsible state
and territorial agencies under section 307 of the CZMA. The Hawaii
Coastal Zone Management Program responded on March 12, 2024, stating
that because the U.S. WCPO purse seine fishery operates outside the
jurisdiction of its enforceable policies, it would not be reviewing the
consistency determination. Guam requested supplemental information that
NMFS provided on March 28, 2024. The CNMI replied by letter dated May
7, 2024, stating that it concurs that the action is consistent with the
enforceable policies of CNMI's coastal management program. Guam replied
by letter dated May 28, 2024, stating that based on the information
provided, it concurs that the action will be consistent with the
enforceable policies of Guam's Coastal Management Program. No response
was received from American Samoa, and thus, concurrence with the
respective consistency determinations is presumed (15 CFR 930.41).
Executive Order 12866
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
Regulatory Flexibility Act (RFA)
A FRFA was prepared, as required by section 604 of the RFA. The
FRFA incorporates the initial regulatory flexibility analysis (IRFA)
prepared for the proposed rule. The analysis in the IRFA is not
repeated here in its entirety. A description of the action, why it is
being considered, and the legal basis for this action are contained in
the SUMMARY section of the preamble and in other sections of this
SUPPLEMENTARY INFORMATION section of the preamble. The analysis
follows:
Significant Issues Raised by Public Comments in Response to the IRFA
NMFS did not receive any comments specifically on the IRFA or on
the economic impacts of the rule more generally.
Description of Small Entities to Which the Rule and Specifications Will
Apply
For RFA purposes only, NMFS has established a small business size
standard for businesses, including their affiliates, whose primary
industry is commercial fishing (see 50 CFR 200.2). A business primarily
engaged in commercial fishing (NAICS code 11411) is classified as a
small business if it is independently owned and operated, is not
dominant in its field of operation (including its affiliates), and has
combined annual receipts not in excess of $11 million for all its
affiliated operations worldwide.
The final rule would apply to owners and operators of U.S.
commercial purse seine fishing vessels used to fish for highly
migratory species in the
[[Page 70122]]
Convention Area. Based on the number of U.S. purse seine vessels with
WCPFC Area Endorsements, which are required to fish on the high seas in
the Convention Area, the estimated numbers of affected purse seine
fishing vessels is 13.
Based on limited financial information about the affected fishing
fleets, and using individual vessels as proxies for individual
businesses, NMFS believes 62 percent of the vessels in the purse seine
fleet are small entities as defined by the RFA (i.e., they are
independently owned and operated and not dominant in their fields of
operation, and have annual receipts of no more than $11.0 million).
Within the purse seine fleet, analysis of average revenue, by vessel,
for 2021-2023 reveals that average annual revenue among vessels in the
fleet was about $10 million (NMFS unpublished data combined with price
data from the Pacific Island Forum Fisheries Agency and <a href="https://investor.thaiunion.com/raw_material.html">https://investor.thaiunion.com/raw_material.html</a> accessed on July 29, 2024),
and 8 participating vessels qualified as small entities, with estimated
vessel revenue of less than $11 million (based on the average revenue
across the most recent 3 years of data used).
Recordkeeping, Reporting, and Other Compliance Requirements
The reporting, recordkeeping and other compliance requirements of
this final rule are described earlier in the ``Action'' sub-section of
the SUPPLEMENTARY INFORMATION section of the preamble. The classes of
small entities subject to the requirements and the types of
professional skills necessary to fulfill the requirements are described
below.
The FAD restrictions being implemented under the final rule would
not establish any new reporting or recordkeeping requirements. The new
requirement would be for affected vessel owners and operators to comply
with the FAD restrictions described earlier in the SUPPLEMENTARY
INFORMATION section of the preamble, including FAD prohibition periods
throughout the Convention Area from July 1 through August 15 in each
calendar and FAD prohibition periods just on the high seas in the
Convention Area from December 1 through December 31 in each calendar
year. The final rule would reduce the current FAD prohibitions periods
by 50 percent in terms of duration.
Fulfillment of the element's requirements is not expected to
require any professional skills that the vessel owners and operators do
not already possess. The costs of complying with the requirements are
described below to the extent possible.
The FAD restrictions would substantially constrain the manner in
which purse seine fishing could be conducted in the specified areas and
periods in the Convention Area compared to the no-action alternative of
no closure periods in place at all; in those areas and during those
periods, vessels would be able to set only on free, or
``unassociated,'' schools.
With respect to the one and a half month FAD closure throughout the
Convention Area, assuming that sets would be evenly distributed through
the year, the number of annual FAD sets would be expected to be about
87.5 percent of the number that would occur without a seasonal FAD
closure, and 12.5 percent more than during the existing 3-month FAD
closure. This is calculated by assuming FAD setting would occur at the
same rate throughout the year and that a one and half month closure
would lead to FAD setting for 10.5 out of 12 months of the year instead
of for the full 12 months (i.e., 87.5 percent of the year). The
existing 3-month closure currently leads to FAD setting for 9 out of 12
months of the year instead of the full 12 months (i.e., 75 percent of
the year).
With respect to the additional 1-month high seas FAD closure, the
effects of this element are difficult to predict. CMM 2023-01 includes
four options for the 1-month high seas FAD closure: April, May,
November, or December. In 2018, NMFS analyzed the impacts of the two
previous options included in earlier CMMs, which were the 2-month high
seas FAD closure in April and May and the 2-month high seas FAD closure
in November and December, using data from 2014-2017, and did not find
any statistically significant differences between the average number of
sets in high seas areas, or the number of FAD associated sets in the
high seas across months. The earlier CMMs only included those two
options for 2-month high seas FAD closures and did not include the four
options for 1-month high seas FAD closures included in CMM 2023-01.
However, NMFS did observe trends in the number of high seas and the
number of FAD sets in the high seas areas that supported selection of
the November-December FAD prohibition period. In particular, the number
of FAD sets in the high seas areas were low during November and
December due to fishing effort limits met prior to the end of the
season. If the effort limit was reached prior to November, then the
later prohibition period would have a lesser adverse direct economic
impact on the U.S. purse seine fleet. The analysis also noted that
unpredictable future conditions such as ex-vessel price and
environmental conditions--could result in either closure period having
a greater adverse direct economic impact on the fleet. In 2018-2023,
NMFS chose to implement the 2-month high seas FAD closure in November-
December, and in 2018, the high seas was closed from September 19-
December 31, and in 2019, the U.S. EEZ and the high seas were closed
from October 9-November 28 and from December 9-31. Thus, in 2018 and
for most of 2019, the 2-month high seas FAD closure had little to no
additional impacts due to the closures from the fishing effort limits
already being reached. Similarly, for 2024-2026, if the high seas are
closed to all purse seine fishing towards the end of the year as a
result of the fishing effort limit being reached, the high seas FAD
closure during either November or December would have no additional
effect whatsoever. In that situation, given that any closure would
likely occur later in the year, implementing the 1-month closure in
December would be likely to have less effect than implementing the 1-
month closure in November. However, if the high seas are not closed to
fishing during the closure period, given the performance of the fleet
in recent years, the prohibition on FAD setting would make the high
seas less favorable for fishing than they otherwise would be, since
only unassociated sets would be allowed there, but it is not possible
to characterize how influential that factor would be. Thus, it is not
possible to predict the effects in terms of the spatial distribution of
fishing effort or the proportion of fishing effort that is made on
FADs.
With respect to both the one and a half month FAD closure and 1-
month additional high seas FAD closure compared to the no-action
alternative of no FAD closures in place at all, as for the limits on
fishing effort, vessel operators might choose to schedule their routine
maintenance periods so as to take best advantage of the available
opportunities for making FAD sets (e.g., during the FAD closures).
However, the limited number of vessel maintenance facilities in the
region might constrain vessel operators' ability to do this.
Vessels in the U.S. WCPO purse seine fleet make both unassociated
sets and FAD sets when not constrained by regulation, so one type of
set is not always more valuable or efficient than the other. Which set
type is optimal at any given time is a function of immediate conditions
in and on the water. Other factors, such as fuel prices
[[Page 70123]]
(unassociated sets involve more searching time and thus tend to bring
higher fuel costs than FAD sets) and market conditions (e.g., FAD
fishing, which tends to result in greater catches of lower-value
skipjack tuna and smaller yellowfin tuna and bigeye tuna than
unassociated sets, might be more attractive and profitable when
canneries are not rejecting small fish) also contribute to whichever
set type is optimal at a given time. Clearly, the ability to do either
type of set is valuable, and constraints on the use of either type can
be expected to bring adverse economic impacts to fishing operations.
Thus, the greater the constraints on the ability to make FAD sets, the
greater the expected economic impacts of the action. Because the
factors affecting the relative value of FAD sets and unassociated sets
are many, and because the relationships among them are not well known,
it is not possible to quantify the expected economic impacts of the FAD
restrictions. However, it appears reasonable to conclude two points.
First, the FAD restrictions would adversely impact producer surplus
relative to the no-action alternative of no FAD prohibition periods in
place. The fact that the fleet has made such a substantial portion of
its sets on FADs in the past indicates that prohibiting the use of FADs
in the specified areas and periods could bring substantial costs and/or
revenue losses. Second, vessel operators might be able to mitigate the
impacts of the FAD restrictions by scheduling their routine vessel and
equipment maintenance during the FAD closures, but this opportunity
might be constrained by the limited vessel maintenance facilities in
the region.
Compared to the second no-action alternative or status quo
alternative of FAD prohibition periods that would be twice as long as
the FAD prohibition periods that would be implemented under the final
rule, any adverse effects would be proportionally reduced. Thus the
adverse effects in terms of costs and revenue losses would be less
under the final rule than under the status quo no-action alternative.
Disproportionate Impacts
In the purse seine fishing sector, approximately 62 percent of the
affected entities are small entities, so disproportionate impacts would
not be expected. The direct effect of the final rule would be to
constrain fishing effort, as compared to the no-action alternative of
no closure periods in place at all, by purse seine fishing vessels,
with consequent constraining effects on both revenues (because catches
would be less) and operating costs (because less fishing would be
undertaken). Although some purse seine fishing entities are larger than
others, NMFS is not aware of any differences between the small entities
and the large entities (as defined by the RFA) in terms of their
capital costs, operating costs, or other aspects of their businesses.
Accordingly, there is no information to suggest that the direct adverse
economic impacts on small purse seine entities would be
disproportionately greater than those on large purse seine entities.
However, the direct effect of the final rule would be to reduce
constraints on fishing effort, as compare to the status quo no-action
alternative, by purse seine fishing vessels.
Duplicating, Overlapping, and Conflicting Federal Regulations
NMFS has not identified any Federal regulations that duplicate,
overlap with, or conflict with the regulations.
Alternatives to the Final Rule
NMFS has sought to identify alternatives that would minimize the
final rule's economic impacts on small entities (i.e., significant
alternatives). Taking the no-action alternative of no FAD prohibition
periods could result in lesser adverse economic impacts than the action
for affected entities, but NMFS does not prefer this no-action
alternative, because it would be inconsistent with the United States'
obligations under the Convention. Taking the no-action alternative of
retaining the status quo FAD prohibition periods that are twice as long
in duration could result in greater adverse economic impacts than the
action for affected entities. This alternative would also be
inconsistent with the United States' obligations under the Convention.
Alternatives identified for the final rule are discussed below.
NMFS considered in detail the timing of the additional 1-month FAD
closure for the high seas. CMM 2023-01 allows members to choose either
April, May, November, or December, as the additional month for the high
seas FAD closure. NMFS has compared the expected direct economic
impacts of these four options (implementing a high seas FAD closure in
April, May, November, or December) on purse seine fishing businesses in
the RIR prepared at the proposed rule stage, by analyzing two discrete
alternatives. Due to the similarities between implementing the high
seas FAD closure in April or May (a spring closure) or in November or
December (a winter closure), the RIR analyzed the impacts of
implementing the closure in April or May as compared to November or
December. The analysis finds a closure later in the year--a December
closure--is more likely to have a lesser direct economic impact on
those businesses for the following reasons: because the later closure
period is more likely to run concurrently with a closure of the high
seas in the Convention Area to purse seine fishing (if the fishing
effort limits are reached), in which case the FAD closure would bring
no additional economic impacts.
Paperwork Reduction Act
This final rule contains no information collection requirements
under the Paperwork Reduction Act of 1995.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. NMFS has
prepared a small entity compliance guide for this rule, and will send
copies of the guide to U.S. purse seine vessel permit holders. The
guide and this final rule also will be available via the Federal e-
rulemaking Portal, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (search for ID NOAA-
NMFS-2024-0057) and by request from NMFS PIRO (see ADDRESSES).
List of Subjects in 50 CFR Part 300
Administrative practice and procedure, Fish, Fisheries, Fishing,
Marine resources, Reporting and recordkeeping requirements, Treaties.
Dated: August 21, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS amends 50 CFR part
300 as follows:
PART 300--INTERNATIONAL FISHERIES REGULATIONS
Subpart O--Western and Central Pacific Fisheries for Highly
Migratory Species
0
1. The authority citation for 50 CFR part 300, subpart O, continues to
read as follows:
Authority: 16 U.S.C. 6901 et seq.
[[Page 70124]]
0
2. In Sec. 300.223, revise paragraphs (b)(2) and (b)(3)(i) to read as
follows:
Sec. 300.223 Purse seine fishing restrictions.
* * * * *
(b) * * *
(2) The requirements of paragraph (b)(1) of this section shall
apply:
(i) From July 1 through August 15, in each calendar year;
(ii) In any area of high seas, from December 1 through December 31,
in each calendar year.
(3)(i) Activating FADs for purse seine vessels. A vessel owner,
operator, or crew of a fishing vessel of the United States equipped
with purse seine gear shall turn on the tracking equipment of an active
FAD while the FAD is onboard the vessel and before it is deployed in
the water in the Convention Area.
* * * * *
[FR Doc. 2024-19196 Filed 8-28-24; 8:45 am]
BILLING CODE 3510-22-P
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