2024-19196. International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Changes to Purse Seine Fish Aggregating Device Closure Periods

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Department of Commerce

National Oceanic and Atmospheric Administration

1. 50 CFR Part 300
2. [Docket No. 240821-0223]
3. RIN 0648-BM86

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final rule.

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 https://www.regulations.gov (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: www.wcpfc.int/​doc/​convention-area-map.

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° N and 20° 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)- ( print 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° N latitude and 20° 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 ( print 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 https://investor.thaiunion.com/​raw_​material.html 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 ( print 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 https://www.regulations.gov (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

1. The authority citation for 50 CFR part 300, subpart O, continues to read as follows:

Authority: 16 U.S.C. 6901 et seq.

( print page 70124)

2. In § 300.223, revise paragraphs (b)(2) and (b)(3)(i) to read as follows:

§ 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.

* * * * *