[Federal Register Volume 78, Number 117 (Tuesday, June 18, 2013)]
[Proposed Rules]
[Pages 36496-36505]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-14337]
[[Page 36496]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 130104012-3012-01]
RIN 0648-BC88
International Fisheries; Western and Central Pacific Fisheries
for Highly Migratory Species; Bigeye Tuna Catch Limit in Longline
Fisheries for 2013 and 2014
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes regulations under authority of the Western and
Central Pacific Fisheries Convention Implementation Act (WCPFC
Implementation Act) to establish a catch limit of 3,763 metric tons
(mt) of bigeye tuna (Thunnus obesus) for vessels in the U.S. pelagic
longline fisheries operating in the western and central Pacific Ocean
(WCPO) for each of the calendar years 2013 and 2014. The limit would
not apply to vessels in the longline fisheries of American Samoa, Guam,
or the Commonwealth of the Northern Mariana Islands (CNMI). Once the
limit of 3,763 mt is reached in 2013 or 2014, retaining, transshipping,
or landing bigeye tuna caught in the area of application of the
Convention on the Conservation and Management of Highly Migratory Fish
Stocks in the Western and Central Pacific Ocean (Convention), which
comprises the majority of the WCPO, would be prohibited for the
remainder of the calendar year, with certain exceptions. This action is
necessary for the United States to satisfy its obligations under the
Convention, to which it is a Contracting Party.
DATES: Comments must be submitted in writing by July 18, 2013.
ADDRESSES: You may submit comments on this proposed rule, identified by
NOAA-NMFS-2013-0090, and the regulatory impact review (RIR) prepared
for this proposed rule, by either of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0090, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Submit written comments to Michael D. Tosatto,
Regional Administrator, NMFS, Pacific Islands Regional Office (PIRO),
1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-4700.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
might not be considered by NMFS. All comments received are a part of
the public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name and address), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). Attachments to electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF file formats only.
An initial regulatory flexibility analysis (IRFA) prepared under
authority of the Regulatory Flexibility Act is included in the
Classification section of the SUPPLEMENTARY INFORMATION section of this
proposed rule.
Copies of the RIR and the Supplemental Information Report (SIR)
prepared for National Environmental Policy Act (NEPA) purposes are
available at www.regulations.gov or may be obtained from Michael D.
Tosatto, NMFS PIRO (see address above). The SIR is described in more
detail below in the Classification section of the SUPPLEMENTARY
INFORMATION section of this proposed rule.
FOR FURTHER INFORMATION CONTACT: Rini Ghosh, NMFS PIRO, 808-944-2273.
SUPPLEMENTARY INFORMATION:
Background on the Convention
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 Web site at: www.wcpfc.int/doc/convention-area-map. The Convention focuses on the conservation and management of
highly migratory species (HMS) and the management of fisheries for HMS.
The objective of the Convention is to ensure, through effective
management, the long-term conservation and sustainable use of HMS in
the WCPO. To accomplish this objective, the Convention establishes the
Commission for the Conservation and Management of Highly Migratory Fish
Stocks in the Western and Central Pacific Ocean (WCPFC). The WCPFC
includes Members, Cooperating Non-members, and Participating
Territories (collectively, CCMs). The United States is a Member.
American Samoa, Guam, and the CNMI are Participating Territories.
As a Contracting Party to the Convention and a Member of the WCPFC,
the United States is obligated to implement the decisions of the WCPFC.
The WCPFC Implementation Act (16 U.S.C. 6901 et seq.), 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 WCPFC. 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 to NMFS.
WCPFC Decisions Regarding Bigeye Tuna Catch Limits in Longline
Fisheries
At its Ninth Regular Session, in Manila, Philippines, in December
2012, the WCPFC adopted ``Conservation and Management Measure for
Bigeye, Yellowfin and Skipjack Tuna in the Western and Central Pacific
Ocean'' (CMM 2012-01). The CMM's stated general objective is to ensure
that the stocks of bigeye tuna, yellowfin tuna (Thunnus albacares), and
skipjack tuna (Katsuwonus pelamis) in the WCPO are, at a minimum,
maintained at levels capable of producing their maximum sustainable
yield as qualified by relevant environmental and economic factors. The
CMM includes specific objectives for each of the three stocks: For
each, the fishing mortality rate is to be reduced to or maintained at
levels no greater than the fishing mortality rate associated with
maximum sustainable yield. The requirements of the CMM, identified as
``interim'' measures, are for calendar year 2013. The CMM also calls
for the WCPFC to establish, at its regular annual session in December
2013, a multi-year management program for 2014-2017 for the three
stocks. Given the stock status of bigeye tuna in the WCPO and the
general positions of CCMs regarding their longline fisheries,
[[Page 36497]]
it is highly likely that the multi-year management program will result
in a CMM with the same catch limits for longline fisheries as those
included in CMM 2012-01. NMFS proposes to implement the longline
provisions of CMM 2012-01 for 2014 as well as 2013, and to implement
changes as necessary following the regular session of the WCPFC in
December 2013. In this manner, NMFS will avoid any gaps in regulatory
oversight of the fisheries that otherwise might result. Implementing
this proposed rule for 2013 and 2014 also would serve to provide
advance notice to the public that the catch limit would continue,
pending implementation of any new measure adopted by the WCPFC,
allowing fishers to adjust their fishing practices accordingly. Once
the WCPFC adopts a new CMM, NMFS will take the steps necessary to
implement that CMM.
CMM 2012-01 is the successor to CMM 2011-01, adopted in March 2012
(most provisions of which were applicable in 2012), and to CMM 2008-01,
adopted in December 2008 (most provisions of which were applicable in
2009-2011). These and other CMMs adopted by the WCPFC are available at
www.wcpfc.int/conservation-and-management-measures.
Among other provisions, CMM 2012-01 requires that CCMs limit
catches of bigeye tuna by their longline vessels to specified levels in
2013. The catch limit for the United States longline fisheries is 3,763
mt. This is the same as the catch limit for the United States
established in CMMs 2008-01 and 2011-01 that NMFS implemented for 2009-
2012 (final rule published 74 FR 63999 (2009 rule) and interim final
rule published 77 FR 51709 (2012 rule)). As in the 2009 rule and the
2012 rule, this proposed rule would establish a limit on retained
catches (as a proxy for catches) of bigeye tuna. Under CMM 2012-01 and
its Attachment F, the longline fisheries of American Samoa, Guam, and
the CNMI are not subject to longline bigeye tuna catch limits.
Proposed Action
This proposed rule would implement the longline bigeye tuna catch
limit of CMM 2012-01 for the United States. The proposed limit and
associated restrictions would apply to U.S. longline fisheries in the
WCPO other than those of American Samoa, Guam, and the CNMI.
Establishment of the Limit
For the purpose of this proposed rule, the longline fisheries of
the three U.S. Participating Territories would be distinguished from
the other longline fisheries of the United States (all of which are
U.S.-flagged vessels) based on a combination of three factors: (1)
Where the bigeye tuna are landed; (2) the types of Federal longline
fishing permits registered to the fishing vessel; and (3) whether the
fishing vessel is included in an arrangement under authorization of
Section 113(a) of Public Law 112-55, 125 Stat. 552 et seq., the
Consolidated and Further Continuing Appropriations Act, 2012 (continued
by Pub. L. 113-6, 125 Stat. 603, section 110, the Department of
Commerce Appropriations Act, 2013). Hereafter, this law is referred to
as the ``Section 113 authorization''; the original law, enacted for
2011 and 2012, is referred to as ``prior Section 113(a)''; and,
arrangements authorized under either of these laws are referred to as
``Section 113(a) arrangements.''
The Section 113 authorization remains in effect until the earlier
of December 31, 2013, or such time as the Western Pacific Fishery
Management Council (WPFMC) recommends, and the Secretary approves, an
amendment to the Fishery Ecosystem Plan for the Pacific Pelagic
Fisheries of the Western Pacific Region (Pelagics FEP) that would
authorize U.S. Participating Territories to use, assign, allocate, and
manage catch limits of highly migratory fish stocks, or fishing effort
limits, established by the WCPFC, and the amendment is implemented via
regulations. The WPFMC at its 154th meeting took final action to amend
the Pelagics FEP accordingly; however, the amendment has not yet been
approved or implemented by NMFS. It is possible the amendment will
apply in 2013 or 2014, in which case the provisions of this proposed
rule that take into consideration the Section 113 authorization would
cease to apply, as the amendment would effectively replace it. The
Section 113 authorization may also cease to apply on its own in 2014,
if the effective date is not further extended beyond December 31, 2013;
therefore, the provisions of this proposed rule that take into
consideration the Section 113 authorization would similarly cease to
apply. Thus, this proposed rule provides notice to the public that the
provisions in the rule for Section 113(a) arrangements may be
applicable in 2014, if the Section 113 authorization is further
continued, but the regulatory text would only implement the provisions
for Section 113(a) arrangements for 2013. NMFS would take appropriate
action to amend the regulatory text if Section 113(a) arrangements are
applicable in 2014.
With respect to the first factor, bigeye tuna landed by U.S.
vessels in any of the three U.S. Participating Territories, with
certain provisos, would be attributed to the longline fishery of that
Participating Territory. The provisos are that: (1) The bigeye tuna
must not be captured in the portion of the U.S. exclusive economic zone
(EEZ) surrounding the Hawaiian Archipelago; and (2) the bigeye tuna
must be landed by a U.S. fishing vessel operated in compliance with one
of the permits required under the regulations implementing the Pelagics
FEP developed by the WPFMC or the Fishery Management Plan for U.S. West
Coast Fisheries for Highly Migratory Species (West Coast HMS FMP)
developed by the Pacific Fishery Management Council (i.e., a permit
issued under 50 CFR 665.801 or 660.707).
With respect to the second factor, bigeye tuna that are caught by a
fishing vessel registered for use under a valid American Samoa Longline
Limited Access Permit would, subject to the provisos mentioned above,
be attributed to the longline fishery of American Samoa, regardless of
where that catch is landed. This distinction is made because American
Samoa Longline Limited Access Permits are issued only to people that
have demonstrated participation in the American Samoa pelagic
fisheries, such that the catch may properly be attributed to that
territory. The 2009 rule and the 2012 rule included these two above
factors as well as the related provisos.
The 2012 rule also included a third factor for the attribution of
catch to the U.S. Participating Territories, to take into consideration
the provisions of prior Section 113(a). This proposed rule takes into
consideration these same provisions, which are included in the Section
113 authorization. These provisions authorize the U.S. Participating
Territories of the WCPFC to use, assign, allocate, and manage catch
limits or fishing effort limits agreed to by the WCPFC through
arrangements with U.S. vessels with permits issued under the Pelagics
FEP. They also further direct the Secretary of Commerce, for the
purposes of annual reporting to the WCPFC, to attribute catches made by
vessels operating under Section 113(a) arrangements to the U.S.
Participating Territories. The provisions also establish specific
eligibility criteria for these arrangements. The 2012 rule established
additional requirements and conditions for catches to be attributed to
the U.S. Participating Territories. This proposed rule includes these
same eligibility criteria, requirements, and conditions, which are
described in more detail below.
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The longline fisheries of the United States and its territories
operating in the WCPO are managed as discrete fisheries, with separate
compilations of catch and effort statistics and separate management
measures for each fishery. In order to allow for the orderly
administration of these fisheries and a consistent manner of
attributing catches to the fisheries of the U.S. Participating
Territories under eligible Section 113(a) arrangements, NMFS would wait
to attribute catches under eligible Section 113(a) arrangements until
the date the catch limit would be reached can be forecasted with a
fairly high degree of probability. Thereafter, NMFS would attribute
catches to the fisheries of the U.S. Participating Territories under
eligible Section 113(a) arrangements starting seven days before the
date the U.S. catch limit is forecasted to be reached. This procedure
would allow NMFS to properly administer and enforce the specific
management requirements for each fishery throughout the year,
consistent with the approved Pelagics FEP.
As in 2012, NMFS would prepare forecasts during 2013 and 2014 of
the date that the bigeye tuna catch limit would be reached and
periodically make these forecasts available to the public, such as by
posting on a Web site. All the forecasts prepared up until the time
that catch attribution to the U.S. Participating Territories under
Section 113(a) arrangements actually begins would assume that there
would be no such catch attribution to the U.S. Participating
Territories. Those forecasts would be subject to change as new
information becomes available. Because of these potential changes, it
is necessary to identify a particular forecast for the purpose of
determining when catch attribution to the U.S. Participating
Territories under eligible Section 113(a) arrangements would begin. For
this purpose, NMFS would use the first forecast that indicates the
catch limit would be reached within 28 days of the date of preparation
of that forecast. The projected catch limit date in this forecast would
be called, for the purpose of this proposed rule, the pre-Section
113(a) attribution forecast date. As soon as NMFS determines the pre-
Section 113(a) attribution forecast date, NMFS would evaluate all
Section 113(a) arrangements that it has received to date, based on the
eligibility criteria specified below, and calculate a new forecast date
for the catch limit, this time not counting as part of the tally any
U.S. catches to be attributed to the U.S. Participating Territories
under eligible Section 113(a) arrangements. In order to allow NMFS a
reasonable amount of time to complete this process, NMFS would begin
attributing catches to the U.S. Participating Territories under
eligible Section 113(a) arrangements seven days before the pre-Section
113(a) attribution forecast date and the new forecast date for the
catch limit would be calculated based on this attribution start date.
At that time, NMFS would also make publicly available a new forecast
date on a Web site--the post-Section 113(a) attribution forecast date--
and would update that forecast date as appropriate throughout 2013 and
2014 (if Section 113(a) arrangements are applicable in 2014).
There would be no official due date for the receipt by NMFS of
potentially eligible Section 113(a) arrangements. However, NMFS would
need 14 days to process arrangements that it receives, so for an
arrangement received after the date that NMFS determines the pre-
Section 113(a) attribution forecast date, attribution to the
appropriate U.S. Participating Territory would start 14 days after NMFS
has received the arrangement or seven days before the pre-Section
113(a) attribution forecast date, whichever date is later.
NMFS considered starting catch attribution to the U.S.
Participating Territories under eligible Section 113(a) arrangements
only after the 3,763 mt catch limit is reached, in order to be
consistent with past administration of the longline fisheries in the
WCPO. However, given the time needed to process Section 113(a)
arrangements and the time needed to put into effect the prohibitions
once the 3,763 mt catch limit is reached, waiting until the catch limit
is reached to begin attribution under arrangements with the U.S.
Participating Territories would likely cause public confusion and
result in unnecessary costs in the fishery if there is an eligible
Section 113(a) arrangement. For example, should attribution begin only
after the catch limit is reached and the prohibitions go into effect, a
vessel owner providing NMFS with a copy of an eligible arrangement a
few days before the catch limit is reached would be subject to the
prohibitions for a number of days while the arrangement is reviewed,
even though the prohibitions would be later found not to apply to the
vessel. Beginning attribution to the U.S. Participating Territories a
short period before the pre-Section 113(a) attribution forecast date
would help minimize confusion and costs associated with such a
situation. It would also have the advantage of avoiding, in certain
circumstances, the administrative and other costs associated with
putting the prohibitions into effect.
The proposed rule would also include certain requirements that must
be met in order for NMFS to attribute bigeye tuna caught by a
particular vessel included in a Section 113(a) arrangement to the
longline fishery of a U.S. Participating Territory. First, with the
exception of existing arrangements received by NMFS prior to the
effective date of the proposed rule, NMFS would need to receive from
the vessel owner or designated representative a copy of the arrangement
at least 14 days prior to the date the bigeye tuna were caught. In
addition, the arrangement would need to satisfy specific criteria,
discussed in detail in the section below.
Any bigeye tuna attributed to the longline fisheries of American
Samoa, Guam, or the CNMI as specified in the proposed rule would not be
counted against the U.S. limit. All other bigeye tuna captured by
longline gear in the Convention Area by U.S. longline vessels and
retained would be counted against the U.S. limit of 3,763 mt.
Eligible Arrangements
Under the proposed rule, an arrangement would not be eligible for
the attribution of bigeye tuna to the U.S. Participating Territories
under the terms of the Section 113 authorization, unless each of the
following five criteria were met: (1) The arrangement would need to
include vessels registered for use with valid permits issued under the
Pelagics FEP; (2) the arrangement could not impose requirements
regarding where the vessels fish or land their catch; (3) the
arrangement would need to be signed by all the owners of the vessels
included in the arrangement, or by their designated representative(s);
(4) the arrangement would need to be signed by an authorized official
of the U.S. Participating Territory(ies) or his or her designated
representative(s); and (5) the arrangement would need to be funded by
deposits to the Western Pacific Sustainable Fisheries Fund in support
of fisheries development projects identified in a territory's Marine
Conservation Plan adopted pursuant to section 204 of the MSA. If NMFS
determined that an arrangement did not meet the criteria for
eligibility, NMFS would notify the parties to the arrangement or their
designated representative(s) of its determination within 14 days of
receiving a copy of the arrangement.
Announcement of the Limit Being Reached
Under the proposed rule, should NMFS determine that the limit is
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expected to be reached before the end of 2013 or 2014, NMFS would
publish a notice in the Federal Register to announce specific fishing
restrictions that would be effective from the date the limit is
expected to be reached until the end of the 2013 or 2014 calendar year.
NMFS would publish the notice of the restrictions at least seven
calendar days before the effective date to provide vessel operators
with advance notice. Periodic forecasts of the date the limit is
expected to be reached would be made available to the public, such as
by posting on a Web site, to help vessel operators plan for the
possibility of the limit being reached.
Restrictions After the Limit Is Reached
(1) Retain on board, transship, or land bigeye tuna: Starting on
the effective date of the restrictions and extending through December
31 of that calendar year, it would be prohibited to use a U.S. fishing
vessel to retain on board, transship, or land bigeye tuna captured in
the Convention Area by longline gear, except as follows:
First, any bigeye tuna already on board a fishing vessel upon the
effective date of the restrictions could be retained on board,
transshipped, and/or landed, provided that they were landed within 14
days after the restrictions become effective. A vessel that had
declared to NMFS pursuant to 50 CFR 665.803(a) that the current trip
type is shallow-setting would not be subject to this 14-day landing
restriction, so these vessels would be able to land fish more than 14
days after the restrictions become effective.
Second, bigeye tuna captured by longline gear could be retained on
board, transshipped, and/or landed if they were caught by a fishing
vessel registered for use under a valid American Samoa Longline Limited
Access Permit, or if they were landed in American Samoa, Guam, or the
CNMI, with the following provisos: The bigeye tuna must not have been
caught in the portion of the U.S. EEZ surrounding the Hawaiian
Archipelago and must have been landed by a U.S. fishing vessel operated
in compliance with a valid permit issued under 50 CFR 660.707 or
665.801.
Third, bigeye tuna captured by longline gear could be retained on
board, transshipped, and/or landed if they were caught by a vessel that
is included in an eligible Section 113(a) arrangement, as specified
above, and the bigeye tuna were subject to attribution to the longline
fishery of American Samoa, Guam, or the CNMI in accordance with the
terms of the arrangement, and to the extent consistent with the
requirements and procedures set forth in the proposed rule, with the
following proviso: NMFS would need to have received from the vessel
owner or designated representative a copy of the arrangement at least
14 days prior to the activity (i.e., the retention on board,
transshipment, or landing). The advance notification provision would
not apply to existing arrangements received by NMFS prior to the
effective date of the proposed rule.
(2) Transshipment of bigeye tuna to certain vessels: Starting on
the effective date of the restrictions and extending through December
31 of that calendar year, it would be prohibited to transship bigeye
tuna caught in the Convention Area by longline gear to any vessel other
than a U.S. fishing vessel operated in compliance with a valid permit
issued under 50 CFR 660.707 or 665.801.
(3) Fishing inside and outside the Convention Area: To help ensure
compliance with the restrictions related to bigeye tuna caught by
longline gear in the Convention Area, the proposed rule would establish
two additional, related prohibitions that would be in effect starting
on the effective date of the restrictions and extending through
December 31 of that calendar year. First, it would be prohibited to
fish with longline gear both inside and outside the Convention Area
during the same fishing trip, with the exception of a fishing trip that
is in progress at the time the announced restrictions go into effect.
In that exceptional case, the vessel would still be required to land
any bigeye tuna taken in the Convention Area within 14 days of the
effective date of the restrictions, as described above. Second, if a
vessel is used to fish using longline gear outside the Convention Area
and enters the Convention Area at any time during the same fishing
trip, the longline gear on the fishing vessel would be required to be
stowed in a manner so as not to be readily available for fishing while
the vessel is in the Convention Area. These two prohibitions would not
apply to the following vessels: (1) Vessels on declared shallow-setting
trips pursuant to 50 CFR 665.803(a); and (2) vessels operating for the
purposes of this rule as part of the longline fisheries of American
Samoa, Guam, or the CNMI (including vessels registered for use under
valid American Samoa Longline Limited Access Permits and vessels
landing their bigeye tuna catch in one of the three U.S. Participating
Territories, so long as these vessels conduct fishing activities in
accordance with the provisos described above; and vessels included in
an eligible Section 113(a) arrangement, as specified above, provided
that their catches of bigeye tuna are subject to attribution to the
longline fishery of American Samoa, Guam, or the CNMI at the time of
the activity).
Classification
The Administrator, Pacific Islands Region, NMFS, has determined
that this proposed rule is consistent with the WCPFC Implementation Act
and other applicable laws, subject to further consideration after
public comment.
National Environmental Policy Act
For implementation of the 2009 rule, NMFS prepared an Environmental
Assessment (EA) and a Supplemental EA (hereafter, 2009 EA and 2009 SEA,
respectively). For implementation of the 2012 rule, NMFS prepared a
Supplemental EA (hereafter, 2012 EA). NMFS has prepared a Supplemental
Information Report (SIR) to examine whether additional NEPA analysis is
needed to assess the impacts of the proposed rule on the human
environment. The SIR includes the following sections: (1) The criteria
for supplementing NEPA analysis; (2) summary of existing NEPA
documents; (3) evaluation of the proposed action; (4) evaluation of new
information available since preparation of the existing NEPA analysis;
(5) analysis of the need for additional NEPA analysis; and (6)
conclusions. In the SIR, NMFS concludes that no supplemental NEPA
analysis is required to implement by regulation the 3,763 mt bigeye
tuna catch limit for U.S. longline fisheries for 2013 and 2014 for the
following reasons: (1) The proposed action is substantially the same as
the 2009 rule and the 2012 rule; (2) the potential impacts from the
proposed action on the human environment were addressed in the 2009 EA,
2009 SEA, and 2012 SEA; (3) the resources potentially affected by the
proposed action were adequately described and evaluated in the 2009 EA,
2009 SEA, and 2012 SEA; and (4) there is no new significant information
or circumstances affecting the action area that were not taken into
consideration in the 2009 EA, 2009 SEA, and 2012 SEA.
Executive Order 12866
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
Regulatory Flexibility Act
An initial regulatory flexibility analysis (IRFA) was prepared, as
required by section 603 of the Regulatory Flexibility Act. The IRFA
describes the economic impact this
[[Page 36500]]
proposed rule would have on affected small entities, if adopted. 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:
Estimated Number of Small Entities Affected
The proposed rule would apply to owners and operators of U.S.
vessels fishing with longline gear in the Convention Area, except those
that are part of the longline fisheries of American Samoa, Guam, and
the CNMI. The total number of affected entities is approximated by the
number of Hawaii Longline Limited Access Permits (issued under 50 CFR
665.13) that are assigned to vessels (permitted vessels). Under the
limited access program, no more than 164 permits may be issued. During
2006-2012 the number of permitted vessels ranged from 130 to 145 (these
figures and some other estimates in the remainder of this IRFA differ
slightly from previously published estimates because of subsequent
updates to the data and/or methods that were used for the estimates).
The current number of permitted vessels (as of May 2013) is 129.
Traditionally, most of the Hawaii fleet's fishing effort has been in
the Convention Area, with the remainder of the effort to the east of
the Convention Area, as described below. Owners and operators of U.S.
longline vessels based on the U.S. west coast also could be affected by
this proposed rule. However, based on the complete lack of fishing by
that fleet in the Convention Area since 2005, it is expected that very
few, if any, U.S. west coast vessels would be affected.
Most of the Hawaii longline fleet targets bigeye tuna using deep
sets, and during certain parts of the year, portions of the fleet
target swordfish using shallow sets. In the years 2005 through 2012,
the estimated numbers of Hawaii longline vessels that actually fished
ranged from 124 to 129. Of the vessels that fished, the number of
vessels that engaged in deep-setting in the years 2005 through 2012
ranged from 122 to 129, and the number of vessels that engaged in
shallow-setting ranged from 18 to 35. The number of vessels that
engaged in both deep-setting and shallow-setting ranged from 17 to 35.
The number of vessels that engaged exclusively in shallow-setting
ranged from zero to two. As an indication of the size of businesses in
the fishery, average annual ex-vessel revenue for the fleet during
2005-2010 was about $71 million (in 2012 dollars). Virtually all of
those revenues are believed to come from shallow-set and deep-set
longlining. Based on an average of 127 active vessels during that
period, the mean annual per-vessel revenue was about $0.6 million (in
2012 dollars). NMFS has determined that most or all vessels in the
affected fisheries are likely to be small entities based on the average
annual per-vessel revenue and the Small Business Administration's
definition of a small fish harvester (i.e., gross annual receipts of
less than $4.0 million).
Recordkeeping, Reporting, and Other Compliance Requirements
The proposed rule would not establish any new reporting or
recordkeeping requirements. The new compliance requirement would be for
affected vessel owners and operators to cease retaining, landing, and
transshipping bigeye tuna caught with longline gear in the Convention
Area if and when the catch limit is reached in 2013 or 2014, for the
remainder of the calendar year, with the exceptions and provisos
described in other sections of this SUPPLEMENTARY INFORMATION section
of the preamble. (Although the restrictions that would come into effect
in the event the catch limit is reached would not prohibit longline
fishing, per se, they are sometimes referred to in this analysis as
constituting a ``fishery closure.'') Fulfillment of this requirement is
not expected to require any professional skills that the vessel owners
and operators do not already possess. The costs of complying with this
requirement are described below to the extent possible.
Complying with the proposed rule could cause foregone fishing
opportunities and result in associated economic losses in the event
that the bigeye tuna catch limit is reached in 2013 or 2014 and the
restrictions on retaining, landing, and transshipping bigeye tuna are
imposed for portions of either or both of those years. These costs
cannot be projected with any quantitative certainty. For the purpose of
projecting baseline conditions under no action, this analysis relies
primarily on fishery performance from 2005 through 2008. The years
prior to 2005 are excluded because the regulatory environment underwent
major changes (the swordfish-directed shallow-set longline fishery was
closed in 2001 and reopened in 2004 with limits on fishing effort and
turtle interactions). The years 2009-2012 are excluded because bigeye
tuna catch limits similar to the limits proposed here were in place.
The proposed limit, by prescription, is 10 percent less than catches in
2004 (here and in the remainder of this IRFA, ``catches'' means fish
that are caught and retained on board). The proposed annual limit of
3,763 mt is less than the amount caught in any of the years 2005-2008,
and it is 20 percent less than the annual average amount caught in that
period. Thus, if catches in 2013 and 2014 are similar to those in 2005-
2008, there would be a fairly high likelihood of the proposed limit
being reached in both years.
If the bigeye tuna limit is reached before the end of 2013 or 2014
and the Convention Area bigeye fishery is consequently closed for the
remainder of the calendar year, it can be expected that affected
vessels would shift to the next most profitable fishing opportunity
(which might be not fishing at all). Revenues from that ``next best''
alternative activity reflect the opportunity costs associated with
longline fishing for bigeye tuna in the Convention Area. The economic
cost of the proposed rule would not be the nominal direct losses in
revenues that would result from not being able to fish for bigeye tuna
in the Convention Area, but rather the difference in benefits derived
from that activity and those derived from the next best activity. The
economic cost of the proposed rule on affected entities is examined
here by first estimating the direct losses in revenues that would
result from not being able to fish for bigeye tuna in the Convention
Area as a result of the catch limit being reached. Those losses
represent the upper bound of the economic cost of the proposed rule on
affected entities. Potential next-best alternative activities that
affected entities could undertake are then identified in order to
provide a (mostly qualitative) description of the degree to which
actual costs would be lower than that upper bound.
Upper bounds on potential economic costs can be estimated by
examining the projected value of longline landings from the Convention
Area that would not be made as a result of reaching the limit. For this
purpose, it is assumed that, absent this proposed rule, fishing
patterns in 2013 and 2014 would be about the same as those in 2005-
2008. In the IRFA for the 2009 rule, two no-action scenarios were
considered--one in which future catches would be equal to the average
during 2005-2008, and a second in which the increasing trend in the
fleet's catches in 2005-2008 would continue in future years. The second
scenario is not considered in this analysis because if catches in
2011--a year in which a bigeye tuna catch limit was in place but was
not reached--are
[[Page 36501]]
considered, there was no clear upward trend (in 2009 and 2010, the
limit was reached and the restrictions went into effect). Based on the
numbers of fish caught from vessel logbook data, and average fish
weights derived from landings data, the average annual fleet catch of
bigeye tuna in 2005-2008 was 4,718 mt. Thus, if catches in 2013 and
2014 would be 4,718 mt per year without a limit in place, imposition of
a catch limit of 3,763 mt would be expected to result in 20 percent
less bigeye tuna being caught in 2013-2014 than under no action. In the
deep-set fishery, catches of marketable species other than bigeye tuna
would likely be affected in a similar way (if vessels do not shift to
alternative activities). Assuming for the moment that ex-vessel prices
would not be affected by a fishery closure, under the proposed rule,
revenues in 2013 and 2014 to entities that participate exclusively in
the deep-set fishery would be approximately 20 percent less than under
no action. If average annual ex-vessel revenues during 2005-2008 (about
$0.6 million per active vessel, in 2012 dollars) are a good indicator
of future revenues under no action, per-vessel annual revenues under
the proposed rule would be as much as $0.1 million less, on average,
than under no action.
In the shallow-set fishery, affected entities would bear limited
cost in the event of the limit being reached (but most affected
entities also participate in the deep-set fishery and might bear costs
in that fishery, as described below). The cost would be approximately
equal to the revenues lost from not being able to retain or land bigeye
tuna captured while shallow-setting in the Convention Area, or the cost
of shifting to shallow-setting in the eastern Pacific Ocean (EPO),
which is to the east of 150 degrees W. longitude, whichever is less. In
the fourth calendar quarters of 2005-2008, almost all shallow-setting
effort took place in the EPO, and 97 percent of bigeye tuna catches
were made there, so the cost of a bigeye tuna fishery closure would
appear to be very limited. During 2005-2008, the shallow-set fishery
caught an average of 54 mt of bigeye tuna per year from the Convention
Area. If the proposed bigeye tuna catch limit is reached even as early
as July 31 in 2013 or 2014, the Convention Area shallow-set fishery
would have caught at that point, based on 2005-2008 data, on average,
99 percent of its average annual bigeye tuna catches. Thus, imposition
of the landings restriction at that point in 2013 or 2014 would result
in the loss of revenues from approximately 0.5 mt (1 percent of 54 mt)
of bigeye tuna, which, based on recent ex-vessel prices, would be worth
no more than $5,000. Thus, expecting about 27 vessels to engage in the
shallow-set fishery (the annual average in 2005-2012), the average of
those potentially lost annual revenues would be no more than $200 per
vessel.
The remainder of this analysis focuses on the potential costs of
compliance in the deep-set fishery. Again, the estimates of potentially
lost revenues given above are for the purpose of estimating upper
bounds on potential economic losses on affected entities and do not
account for revenues from alternative activities, some of which are
discussed further below.
It should be noted that impacts on affected entities' profits would
be less than impacts on revenues, because costs would be lower if a
vessel ceases fishing after the catch limit is reached. Variable costs
can be expected to be affected roughly in proportion to revenues, as
both would stop accruing once a vessel stops fishing. But affected
entities' costs also include fixed costs, which are borne regardless of
whether a vessel is used to fish--e.g., if it is tied up at the dock
during a fishery closure. Thus, profits would likely be adversely
impacted proportionately more than revenues.
As stated previously, actual compliance costs for a given entity
might be less than the upper bounds described above because ceasing
fishing would not necessarily be the most profitable opportunity in the
event of the catch limit being reached. Two alternative opportunities
that are expected to be attractive to affected entities include: (1)
Deep-set longline fishing for bigeye tuna in the Convention Area in a
manner such that the vessel is considered part of the longline fishery
of American Samoa, Guam, or the CNMI; and (2) deep-set longline fishing
for bigeye tuna and other species in the EPO. These two opportunities
are discussed in detail below. Three additional opportunities, which
were examined in economic analyses prepared for the 2009 rule are: (3)
Shallow-set longline fishing for swordfish (for deep-setting vessels
that would not otherwise do so), (4) deep-set longline fishing in the
Convention Area for species other than bigeye tuna, and (5) working in
cooperation with vessels operating as part of the longline fisheries of
the Participating Territories--specifically, receiving transshipments
at sea from them and delivering the fish to the Hawaii market. Vessel
repair and maintenance is another possibility. A study by NMFS of the
effects of the WCPO bigeye tuna longline fishery closure in 2010
(Richmond, L., D. Kotowicz, J. Hospital and S. Allen, 2012, Adaptations
in a Fishing Community: Monitoring Socioeconomic Impacts of Hawai`i's
2010 Bigeye Tuna Closure, PIFSC Internal Report IR-12-019, Honolulu,
United States Department of Commerce, National Oceanic and Atmospheric
Administration, National Marine Fisheries Service, Pacific Islands
Fisheries Science Center) did not identify any alternative activities
that vessels engaged in during the closure other than deep-setting for
bigeye tuna in the EPO, vessel maintenance and repairs, and granting
lengthy vacations to employees. Thus, alternative opportunities (3),
(4) and (5) are probably relatively unattractive relative to the first
two, and they are not discussed here in any further detail.
Before examining in detail the two potential alternative
opportunities that would appear to be the most attractive to affected
entities, it is important to note that under the proposed rule, once
the limit is reached and the WCPO bigeye tuna fishery is closed, it
would be prohibited to fish with longline gear both inside and outside
the Convention Area during the same trip (with the exception of a
fishing trip that is in progress when the limit is reached and the
restrictions go into effect). For example, after the restrictions go
into effect, during a given fishing trip, a vessel could be used for
longline fishing for bigeye tuna in the EPO or for longline fishing for
species other than bigeye tuna in the Convention Area, but not both.
This reduced operational flexibility would bring costs, since it would
constrain the potential profits from alternative opportunities
collectively. Those costs cannot be quantified.
With respect to alternative opportunity (1), deep-setting for
bigeye tuna in a manner such that the vessel is considered part of the
longline fishery of one of the three U.S. Participating Territories,
there would be three such ways to do so: (a) landing the bigeye tuna in
one of the three Participating Territories; (b) having an American
Samoa Longline Limited Access Permit; or (c) entering into an
arrangement with one or more of the three Participating Territories
under the Section 113 authorization, such that the vessel is considered
part of the Participating Territory's longline fishery. In the first
two circumstances, the vessel would be considered part of the longline
fishery of the Participating Territory only if the bigeye tuna were not
caught in the portion of the U.S. EEZ around the Hawaiian Islands and
they are landed
[[Page 36502]]
by a U.S. vessel operated in compliance with a permit issued under the
Pelagics FEP or the West Coast HMS FMP.
With respect to alternative opportunity (1)(a), landing the bigeye
tuna in one of the Participating Territories, there are three
potentially important constraints. First, whether the fish are landed
by the vessel that caught the fish or by a vessel to which the fish
were transshipped, the costs of a vessel transiting from the
traditional fishing grounds in the vicinity of the Hawaiian Archipelago
to one of the Participating Territories would be substantial. Second,
none of these three locales has large local consumer markets to absorb
substantial additional landings of fresh sashimi-grade bigeye tuna.
Third, transporting the bigeye tuna from these locales to larger
markets, such as in Hawaii, the U.S. west coast, or Japan, would bring
substantial additional costs and risks. These cost constraints suggest
that this opportunity has limited potential to mitigate the economic
impacts of the proposed rule on affected small entities.
Opportunity (1)(b), having an American Samoa Longline Limited
Access Permit, would be available only to the subset of the Hawaii
longline fleet that has both Hawaii and American Samoa longline permits
(``dual permit vessels''). Vessels that do not currently have both
permits could obtain them if they meet the eligibility requirements and
pay the required costs. For example, the number of dual permit vessels
increased from 12 in 2009, when the first WCPO bigeye tuna catch limit
was established, to 20 in 2011, where it remained in 2012. The
previously cited NMFS study of the 2010 fishery closure (Richmond et
al. 2012) found that bigeye tuna landings of dual permit vessels
increased substantially after the start of the closure on November 22,
2010, indicating that this was an attractive opportunity for dual
permit vessels, and suggesting that those entities might have
benefitted from the catch limit and the closure.
Opportunity (1)(c), entering into a Section 113(a) arrangement with
a U.S. Participating Territory, would be available to all affected
entities in 2013; it is not known whether it would be available in
2014. This is the same opportunity that was available in 2011 and 2012
when prior Section 113(a) was in effect. In those two years, the
vessels of the members of the Hawaii Longline Association (HLA) were
included in a Section 113(a) arrangement with American Samoa, and as a
result, the catch limit was not reached in either year, and no longline
vessels were subject to the restrictions that would have gone into
effect had the limit been reached. This option would likely not come
without cost--at least one of the three Participating Territories would
have to agree to the arrangement. As an indication of the possible
cost, the terms of the arrangement between American Samoa and the
members of the HLA that applied in 2011 and 2012 included payments
totaling $250,000 from the HLA to the Western Pacific Sustainable
Fisheries Fund, equal to $2,000 per vessel in the arrangement (it is
not known how the total cost was allocated among the members of the
HLA, so it is possible that the owners of particular vessels paid
substantially more than or less than $2,000).
With respect to alternative opportunity (2), deep-set fishing for
bigeye tuna in the EPO, this would be an option for affected entities
only if it is allowed under regulations implementing the decisions of
the Inter-American Tropical Tuna Commission (IATTC). Currently there is
a bigeye tuna catch limit of 500 mt for 2013 that applies to U.S.
longline vessels greater than 24 meters (m) in length. It is presently
not known whether the limit will be reached in 2013. Annual longline
bigeye tuna catch limits have been in place for the EPO in most years
since 2004, but since 2009, when the limit was 500 mt and applicable
only to vessels longer than 24 m in length, the limits have not been
reached. The IATTC is scheduled to consider needed management measures
for 2014 and beyond for the tropical tuna stocks at its annual meeting
in June 2013, but it is not known whether it will maintain or modify
its current bigeye tuna longline catch limit provisions, which are in
effect through 2013.
Historical fishing patterns can provide an indication of the
likelihood of affected entities making use of the opportunity of deep-
setting in the EPO in the event of a closure in the WCPO. The
proportion of the U.S. fishery's annual bigeye tuna catches that were
captured in the EPO from 2005 through 2008 ranged from 2 percent to 22
percent, and averaged 11 percent. In 2005-2007, that proportion, which
ranged from 2 percent to 11 percent, may have been constrained by the
bigeye tuna catch limits established by NMFS to implement the decisions
of the IATTC.
Prior to 2009, most of the U.S. annual bigeye tuna catch by
longline vessels in the EPO typically was made in the second and third
quarters of the year: in 2005-2008 the percentages caught in the first,
second, third, and fourth quarters were 14, 33, 50, and 3 percent,
respectively. These two historical patterns--that relatively little of
the bigeye tuna catch in the longline fishery was typically taken in
the EPO (11 percent in 2005-2008, on average) and that most EPO bigeye
tuna catches were made in the second and third quarters, with
relatively few catches in the fourth quarter, when the proposed catch
limit would most likely be reached, suggest that there could be
substantial costs for at least some affected entities to shift to deep-
set fishing in the EPO in the event of a closure in the WCPO. On the
other hand, fishing patterns in 2009-2012, when annual bigeye tuna
catch limits were in effect in the WCPO, suggest that a substantial
shift in deep-set fishing effort to the EPO could occur. In 2009, 2010,
2011, and 2012, the proportions of the fishery's annual bigeye tuna
catches that were captured in the EPO were about 16, 27, 22, and 19
percent, respectively. And during that three-year period, on average,
the proportions caught in the first, second, third, and fourth quarters
were 7, 14, 41, and 37 percent, respectively. Thus, a substantial
amount of fishing occurred in the EPO in the fourth quarters of 2009-
2012, when WCPO catch limits were in place (the limits were reached in
2009 and 2010). However, the NMFS study of the 2010 closure (Richmond
et al. 2012) found that some businesses--particularly those with
smaller vessels--were less inclined than others to fish in the EPO
during the closure because of the relatively long distances that would
need to be travelled in the relatively rough winter ocean conditions.
The study identified a number of factors that likely made fishing in
the EPO less lucrative than fishing in the WCPO during that part of the
year, including fuel costs and the need to limit trip length in order
to maintain fish quality and because of limited fuel storage capacity.
In addition to affecting the volume of landings of bigeye tuna and
other species, the proposed catch limit could affect fish prices,
particularly during a fishery closure. Both increases and decreases
appear possible. After the limit is reached and landings from the WCPO
are prohibited, ex-vessel prices of bigeye tuna (e.g., that are caught
in the EPO or by vessels in the longline fisheries of the three U.S.
Participating Territories), as well as of other species landed by the
fleet, could increase as a result of the constricted supply. This would
mitigate economic losses for vessels that are able to continue fishing
and landing bigeye tuna during the closure. For example, the NMFS study
of the 2010 closure (Richmond et al. 2012) found that ex-vessel prices
during
[[Page 36503]]
the closure in December were 50 percent greater than the average during
the previous five Decembers (it is emphasized that because it was an
observational study, neither this nor other observations of what
occurred during the closure can be affirmatively linked as effects of
the fishery closure). Conversely, a WCPO bigeye tuna fishery closure
could cause a decrease in ex-vessel prices of bigeye tuna and other
products landed by affected entities if the interruption in the local
supply prompts the Hawaii market to shift to alternative (e.g.,
imported) sources of bigeye tuna. Such a shift could be temporary--that
is, limited to 2013 and/or 2014, or it could lead to a more permanent
change in the market (e.g., as a result of wholesale and retail buyers
wanting to mitigate the uncertainty in the continuity of supply from
the Hawaii longline fisheries). In the latter case, if locally caught
bigeye tuna fetches lower prices because of stiffer competition with
imported bigeye tuna, then ex-vessel prices of local product could be
depressed indefinitely. The NMFS study of the 2010 closure (Richmond et
al. 2012) found that a common concern in the Hawaii fishing community
prior to the closure in November 2010 was retailers having to rely more
heavily on imported tuna, causing imports to gain a greater market
share in local markets. The study found this not to have been borne
out, at least not in 2010, when the evidence gathered in the study
suggested that few buyers adapted to the closure by increasing their
reliance on imports, and no reports or indications were found of a
dramatic increase in the use of imported bigeye tuna during the
closure. The study concluded, however, that the 2010 closure caused
buyers to give increased consideration to imports as part of their
business model, and it was predicted that tuna imports could increase
during any future closure. To the extent that ex-vessel prices would be
reduced by this action, revenues earned by affected entities would be
affected accordingly, and these impacts could occur both before and
after the limit is reached, and as described above, possibly after
2014.
The potential economic effects identified above would vary among
individual business entities, but it is not possible to predict the
range of variation. Furthermore, the impacts on a particular entity
would depend both on that entity's response to the proposed rule and to
the behavior of other vessels in the fleet, both before and after the
catch limit is reached. For example, the greater the number of vessels
that take advantage--before the limit is reached--of opportunity (1),
fishing as part of one of the Participating Territory's fisheries, the
lower the likelihood that the limit would be reached. The fleet's
behavior in 2011 and 2012 is illustrative. In both those years, most
vessels in the Hawaii fleet were included in a Section 113(a)
arrangement with American Samoa, and as a consequence, the catch limit
was not reached in either year. Thus, none of the vessels in the fleet,
including those not included in the Section 113(a) arrangement, were
prohibited from fishing for bigeye tuna in the Convention Area at any
time during those two years. The fleet's experience in 2010 (before
opportunities under prior Section 113(a) were available) provides
another example of how economic impacts could be distributed among
different entities. In 2010 the limit was reached and the WCPO bigeye
tuna fishery was closed on November 22. As described above, dual permit
vessels were able to continue fishing (outside the U.S. EEZ around the
Hawaiian Archipelago) and benefit from the relatively high ex-vessel
prices that bigeye tuna fetched during the closure.
In summary, NMFS has estimated upper bounds on the potential
economic impacts of the proposed rule on affected entities, but the
actual impacts to most entities are likely to be substantially less
than those upper bounds, and for some entities the impacts could be
neutral or positive.
Disproportionate Impacts
As indicated above, most or all affected entities are believed to
be small entities, in which case small entities would not be
disproportionately affected relative to large entities. However, as
described above, there could be disproportionate impacts according to
vessel size. The 500 mt EPO bigeye catch limit for 2013 applies only to
vessels greater than 24 m in length, so in the event that the WCPO
bigeye tuna fishery is closed and the 500 mt limit is reached in the
EPO, only vessels 24 m or less in length would be able to take
advantage of the alternative opportunity of deep-setting for bigeye
tuna in the EPO. On the other hand, smaller vessels can be expected to
find it more difficult, risky, and/or costly to fish in the EPO during
the relatively rough winter months than larger vessels. If there are
any large entities among the affected entities, and if the vessels of
the large entities are larger than those of small entities, then it is
possible that small entities could be disproportionately affected
relative to large entities. All the affected entities are longline
fishing businesses, so there would be no disproportionate economic
impacts based on fishing gear. No disproportionate economic impacts
based on home port would be expected.
Duplicating, Overlapping, and Conflicting Federal Regulations
NMFS has not identified any Federal rules that duplicate, overlap
or conflict with the proposed rule.
Alternatives to the Proposed Rule
NMFS has not identified any significant alternatives to the
proposed rule, other than the no-action alternative. Taking no action
could result in lesser adverse economic impacts than the proposed
action for many affected entities (but as described above, for some
affected entities, the proposed rule could be more economically
beneficial than no-action), but NMFS has determined that the no-action
alternative would fail to accomplish the objectives of the WCPFC
Implementation Act, including satisfying the international obligations
of the United States as a Contracting Party to the Convention.
List of Subjects in 50 CFR Part 300
Administrative practice and procedure, Fish, Fisheries, Fishing,
Marine resources, Reporting and recordkeeping requirements, Treaties.
Dated: June 11, 2013.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, performing the
functions and duties of the Assistant Administrator for Fisheries,
National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 300 is
proposed to be amended as follows:
PART 300--INTERNATIONAL FISHERIES REGULATIONS
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.
0
2. Section 300.224 is revised to read as follows:
Sec. 300.224 Longline fishing restrictions.
(a) Establishment of bigeye tuna catch limit. There is a limit of
3,763 metric tons of bigeye tuna that may be captured in the Convention
Area by longline gear and retained on board by fishing vessels of the
United States during each of the calendar years 2013 and 2014.
(b) Exception for bigeye tuna landed in territories. Bigeye tuna
landed in American Samoa, Guam, or the Commonwealth of the Northern
Mariana Islands will be attributed to the longline fishery of the
territory in which it is
[[Page 36504]]
landed and will not be counted against the limit established under
paragraph (a) of this section, provided that:
(1) The bigeye tuna were not caught in the portion of the EEZ
surrounding the Hawaiian Archipelago; and
(2) The bigeye tuna were landed by a fishing vessel operated in
compliance with a valid permit issued under Sec. 660.707 or Sec.
665.801 of this title.
(c) Exception for bigeye tuna caught by vessels with American Samoa
Longline Limited Access Permits. Bigeye tuna caught by a vessel
registered for use under a valid American Samoa Longline Limited Access
Permit issued under Sec. 665.801(c) of this title will be attributed
to the longline fishery of American Samoa and will not be counted
against the limit established under paragraph (a) of this section,
provided that:
(1) The bigeye tuna were not caught in the portion of the EEZ
surrounding the Hawaiian Archipelago; and
(2) The bigeye tuna were landed by a fishing vessel operated in
compliance with a valid permit issued under Sec. 660.707 or Sec.
665.801 of this title.
(d) Exception for bigeye tuna caught by vessels included in Section
113(a) arrangements. Bigeye tuna caught in 2013 by a vessel that is
included in an arrangement under the authorization of Section 113(a) of
Public Law 112-55, 125 Stat. 552 et seq., the Consolidated and Further
Continuing Appropriations Act, 2012 (continued by Public Law 113-6, 125
Stat. 603, section 110, the Department of Commerce Appropriations Act,
2013), will be attributed to the longline fishery of American Samoa,
Guam, or the Commonwealth of the Northern Mariana Islands, according to
the terms of the arrangement to the extent they are consistent with
this section and applicable law, and will not be counted against the
limit, provided that:
(1) NMFS has received a copy of the arrangement from the vessel
owner or a designated representative at least 14 days prior to the date
the bigeye tuna was caught, except that this requirement shall not
apply to any arrangement provided to NMFS prior to the effective date
of this paragraph;
(2) The bigeye tuna was caught on or after the ``start date''
specified in paragraph (g)(2) of this section; and
(3) NMFS has determined that the arrangement satisfies the
requirements of Section 113(a) of Public Law 112-55, 125 Stat. 552 et
seq., the Consolidated and Further Continuing Appropriations Act, 2012
(continued by Public Law 113-6, 125 Stat. 603, section 110, the
Department of Commerce Appropriations Act, 2013), in accordance with
the criteria specified in paragraph (g)(3) of this section.
(e) Announcement of catch limit being reached and fishing
prohibitions. NMFS will monitor retained catches of bigeye tuna with
respect to the limit established under paragraph (a) of this section
using data submitted in logbooks and other available information. After
NMFS determines that the limit is expected to be reached by a specific
future date, and at least seven calendar days in advance of that
specific future date, NMFS will publish a notice in the Federal
Register announcing that specific prohibitions will be in effect
starting on that specific future date and ending December 31 of that
calendar year.
(f) Prohibitions after catch limit is reached. Once an announcement
is made pursuant to paragraph (e) of this section, the following
restrictions will apply during the period specified in the
announcement:
(1) A fishing vessel of the United States may not be used to retain
on board, transship, or land bigeye tuna captured by longline gear in
the Convention Area, except as follows:
(i) Any bigeye tuna already on board a fishing vessel upon the
effective date of the prohibitions may be retained on board,
transshipped, and/or landed, to the extent authorized by applicable
laws and regulations, provided that they are landed within 14 days
after the prohibitions become effective. The 14-day landing requirement
does not apply to a vessel that has declared to NMFS, pursuant to Sec.
665.803(a) of this title, that the current trip type is shallow-
setting.
(ii) Bigeye tuna captured by longline gear may be retained on
board, transshipped, and/or landed if they are landed in American
Samoa, Guam, or the Commonwealth of the Northern Mariana Islands,
provided that:
(A) The bigeye tuna were not caught in the portion of the EEZ
surrounding the Hawaiian Archipelago;
(B) Such retention, transshipment, and/or landing is in compliance
with applicable laws and regulations; and
(C) The bigeye tuna are landed by a fishing vessel operated in
compliance with a valid permit issued under Sec. 660.707 or Sec.
665.801 of this title.
(iii) Bigeye tuna captured by longline gear may be retained on
board, transshipped, and/or landed if they are caught by a vessel
registered for use under a valid American Samoa Longline Limited Access
Permit issued under Sec. 665.801(c) of this title, provided that:
(A) The bigeye tuna were not caught in the portion of the EEZ
surrounding the Hawaiian Archipelago;
(B) Such retention, transshipment, and/or landing is in compliance
with applicable laws and regulations; and
(C) The bigeye tuna are landed by a fishing vessel operated in
compliance with a valid permit issued under Sec. 660.707 or Sec.
665.801 of this title.
(iv) Bigeye tuna captured by longline gear may be retained on
board, transshipped, and/or landed in 2013 if they were caught by a
vessel that is included in an arrangement under the authorization of
Section 113(a) of Public Law 112-55, 125 Stat. 552 et seq., the
Consolidated and Further Continuing Appropriations Act, 2012 (continued
by Public Law 113-6, 125 Stat. 603, section 110, the Department of
Commerce Appropriations Act, 2013), if the arrangement provides for the
bigeye tuna when caught to be attributed to the longline fishery of
American Samoa, Guam, or the Commonwealth of the Northern Mariana
Islands, provided that:
(A) NMFS has received a copy of the arrangement at least 14 days
prior to the activity (i.e., the retention on board, transshipment, or
landing), unless NMFS has received a copy of the arrangement prior to
the effective date of this section;
(B) The ``start date'' specified in paragraph (g)(2) of this
section has occurred or passed; and
(C) NMFS has determined that the arrangement satisfies the
requirements of Section 113(a) of Public Law 112-55, 125 Stat. 552 et
seq., the Consolidated and Further Continuing Appropriations Act, 2012
(continued by Pub. L. 113-6, 125 Stat. 603, section 110, the Department
of Commerce Appropriations Act, 2013), in accordance with the criteria
specified in paragraph (g)(3) of this section.
(2) Bigeye tuna caught by longline gear in the Convention Area may
not be transshipped to a fishing vessel unless that fishing vessel is
operated in compliance with a valid permit issued under Sec. 660.707
or Sec. 665.801 of this title.
(3) A fishing vessel of the United States may not be used to fish
in the Pacific Ocean using longline gear both inside and outside the
Convention Area during the same fishing trip, with the exception of a
fishing trip during which the prohibitions were put into effect as
announced under paragraph (e) of this section, in which case the bigeye
tuna on board the vessel may be retained on board, transshipped, and/or
landed, to the extent authorized by applicable laws and regulations,
provided that they are landed within 14 days after the prohibitions
become effective. This prohibition does not apply to a vessel
[[Page 36505]]
that catches bigeye tuna that is to be attributed to the longline
fishery of American Samoa, Guam, or the Commonwealth of the Northern
Mariana Islands in accordance with paragraphs (b), (c), or (d) of this
section, or to a vessel for which a declaration has been made to NMFS,
pursuant to Sec. 665.803(a) of this title, that the current trip type
is shallow-setting.
(4) If a fishing vessel of the United States, other than a vessel
that catches bigeye tuna that is to be attributed to the longline
fishery of American Samoa, Guam, or the Commonwealth of the Northern
Mariana Islands, in accordance with paragraphs (b), (c), and (d) of
this section, or a vessel for which a declaration has been made to
NMFS, pursuant to Sec. 665.803(a) of this title, that the current trip
type is shallow-setting, is used to fish in the Pacific Ocean using
longline gear outside the Convention Area and the vessel enters the
Convention Area at any time during the same fishing trip, the longline
gear on the fishing vessel must, while it is in the Convention Area, be
stowed in a manner so as not to be readily available for fishing;
specifically, the hooks, branch or dropper lines, and floats used to
buoy the mainline must be stowed and not available for immediate use,
and any power-operated mainline hauler on deck must be covered in such
a manner that it is not readily available for use.
(g) Procedures and conditions for Section 113(a) arrangements. This
paragraph establishes procedures to be followed and conditions that
must be met in 2013 with respect to arrangements authorized under
Section 113(a) of Public Law 112-55, 125 Stat. 552 et seq., the
Consolidated and Further Continuing Appropriations Act, 2012 (continued
by Public Law 113-6, 125 Stat. 603, section 110, the Department of
Commerce Appropriations Act, 2013). These procedures and conditions
apply to paragraphs (d), (f)(1)(iv), (f)(3), and (f)(4) of this
section.
(1) For the purpose of this section, the ``pre-Section 113(a)
attribution forecast date'' is the date the catch limit established
under paragraph (a) of this section is forecast by NMFS to be reached
in the calendar year, assuming that no catches would be attributed to
the longline fisheries of American Samoa, Guam, or the Commonwealth of
the Northern Mariana Islands under arrangements authorized under
Section 113(a) of Public Law 112-55, 125 Stat. 552 et seq., the
Consolidated and Further Continuing Appropriations Act, 2012 (continued
by Public Law 113-6, 125 Stat. 603, section 110, the Department of
Commerce Appropriations Act, 2013). Since forecasts are subject to
change as new information becomes available, NMFS will use for this
purpose the first forecast it prepares that indicates that the date of
the limit being reached is less than 28 days after the date the
forecast is prepared.
(2) For the purpose of this section, the ``start date'' for
attribution of catches to the longline fisheries of American Samoa,
Guam, or the Commonwealth of the Northern Mariana Islands for a
particular arrangement is:
(i) Seven days before the pre-Section 113(a) attribution forecast
date, for arrangements copies of which are received by NMFS no later
than the date NMFS determines the pre-Section 113(a) attribution
forecast date; and
(ii) Seven days before the pre-Section 113(a) attribution forecast
date or 14 days after the date that NMFS receives a copy of the
arrangement, whichever is later, for arrangements copies of which are
received by NMFS after the date NMFS determines the pre-Section 113(a)
attribution forecast date.
(3) NMFS will determine whether an arrangement satisfies the
requirements of Section 113(a) of Public Law 112-55, 125 Stat. 552 et
seq., the Consolidated and Further Continuing Appropriations Act, 2012
(continued by Pub. L. 113-6, 125 Stat. 603, section 110, the Department
of Commerce Appropriations Act, 2013), for the attribution of bigeye
tuna to the longline fishery of American Samoa, Guam, or the
Commonwealth of the Northern Mariana Islands according to the following
criteria:
(i) Vessels included under the arrangement must be registered for
use with valid permits issued under the Fishery Ecosystem Plan for
Pacific Pelagic Fisheries of the Western Pacific Region;
(ii) The arrangement must not impose any requirements regarding
where the vessels included in the arrangement must fish or land their
catch;
(iii) The arrangement must be signed by the owners of all the
vessels included in the arrangement or their designated
representative(s);
(iv) The arrangement must be signed by an authorized official of
American Samoa, Guam, or the Commonwealth of the Northern Mariana
Islands or his or her designated representative(s); and
(v) The arrangement must be funded by deposits to the Western
Pacific Sustainable Fisheries Fund in support of fisheries development
projects identified in the Marine Conservation Plan of American Samoa,
Guam, or the Commonwealth of the Northern Mariana Islands adopted
pursuant to section 204 of the Magnuson-Stevens Fishery Conservation
and Management Act.
(4) NMFS will notify the parties to the arrangement or their
designated representative(s) within 14 days of receiving a copy of the
arrangement, if the arrangement does not meet the criteria specified in
paragraph (g)(3) of this section.
[FR Doc. 2013-14337 Filed 6-17-13; 8:45 am]
BILLING CODE 3510-22-P