[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 [www.gpo.gov]
[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 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[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 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

[[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

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