[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 [www.gpo.gov]
[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, 
[email protected].

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 https://pacfin.psmfc.org/). 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