[Federal Register Volume 79, Number 219 (Thursday, November 13, 2014)]
[Rules and Regulations]
[Pages 67359-67362]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26830]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 140131088-4913-02]
RIN 0648-BD94
International Fisheries; Western and Central Pacific Fisheries
for Highly Migratory Species; Fishing Effort Limits in Purse Seine
Fisheries for 2014
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues regulations under authority of the Western and
Central Pacific Fisheries Convention Implementation Act (WCPFC
Implementation Act) to revise the 2014 limit on fishing effort by U.S.
purse seine vessels in the U.S. exclusive economic zone (U.S. EEZ) and
on the high seas between the latitudes of 20[deg] N. and 20[deg] S. 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). The total limit for 2014 is revised from
2,588 fishing days to 1,828 fishing days. This action is necessary for
the United States to implement provisions of a conservation and
management measure (CMM) adopted by the Commission for the Conservation
and Management of Highly Migratory Fish Stocks in the Western and
Central Pacific Ocean (Commission) and to satisfy the obligations of
the United States under the Convention, to which it is a Contracting
Party.
DATES: This rule is effective December 15, 2014.
ADDRESSES: Copies of supporting documents prepared for this final rule,
including the regulatory impact review (RIR) and the Supplemental
Information Report prepared for National Environmental Policy Act
(NEPA) purposes, as well as the proposed rule, are available via the
Federal e-Rulemaking Portal, at www.regulations.gov (search for Docket
ID NOAA-NMFS-2014-0081). Those documents, and the small entity
compliance guide prepared for this final rule, are also available from
NMFS at the following address: Michael D. Tosatto, Regional
Administrator, NMFS, Pacific Islands Regional Office (PIRO), 1845 Wasp
Blvd., Building 176, Honolulu, HI 96818. The initial regulatory
flexibility analysis (IRFA) and final regulatory flexibility analysis
(FRFA) prepared under the authority of the Regulatory Flexibility Act
(RFA) are included in the proposed rule and this final rule,
respectively.
FOR FURTHER INFORMATION CONTACT: Tom Graham, NMFS PIRO, 808-725-5032.
SUPPLEMENTARY INFORMATION:
Background
On July 25, 2014, NMFS published a proposed rule in the Federal
Register (79 FR 43373) to revise regulations at 50 CFR part 300,
subpart O, to implement a decision of the Commission. The proposed rule
was open for public comment through August 25, 2014.
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. The authority to promulgate regulations
has been delegated to NMFS.
This final rule implements for U.S. fishing vessels some of the
purse seine-related provisions of the Commission's Conservation and
Management Measure (CMM) 2013-01, ``Conservation and Management Measure
for Bigeye, Yellowfin and Skipjack Tuna in the Western and Central
Pacific Ocean.'' The preamble to the proposed rule includes detailed
background information, including on the Convention and the Commission,
the provisions of CMM 2013-01 being implemented in this rule, and the
bases for the proposed regulations, which is not repeated here.
New Requirements
This final rule revises the existing limit on the number of fishing
days that may be used by U.S. purse seine vessels in 2014 in an area
called the Effort Limit Area for Purse Seine (ELAPS). The ELAPS
includes all areas of the high seas and U.S. EEZ within the Convention
Area between the latitudes of 20[deg] North and 20[deg] South (but not
the U.S. territorial sea). The limit is revised from 2,588 fishing days
to 1,828 fishing days.
Once NMFS determines during 2014 that, based on available
information, the limit is expected to be reached by a specific future
date, NMFS will issue a notice in the Federal Register announcing the
closure of the U.S. purse seine fishery in the ELAPS starting on that
specific future date. Upon any closure, it will be prohibited to use a
U.S. purse seine vessel to fish in the ELAPS through the end of the
calendar year. NMFS will publish the notice at least seven calendar
days before the effective date of the closure to provide fishermen
advance notice of the closure.
Comments and Responses
NMFS received three sets of comments on the proposed rule and
supporting documents. The comments are summarized below, followed by
responses from NMFS.
Comment 1: I support this rule to reduce fishing days in order to
conserve our fish stocks.
Response: NMFS acknowledges the comment.
Comment 2: I fail to see how the proposed rule would protect the
stock with the Asian and Pacific Island countries continuing to add
boats to their Pacific Ocean fleets while the United States plays into
their hands and continues to strangle-hold our fleet. Soon, all fish
sold in the U.S. market will be sourced from foreign vessels, which are
less-than-ideal role models.
These areas are highly regulated, as U.S. boats must be U.S.-built
and have a fisheries endorsement to fish in these areas; and that is
less than one third of the U.S. fleet. My boat is U.S.-built but cannot
fish in U.S. waters. But instead of our government helping me to gain
access, it just adds more unnecessary regulations.
There are countries that continue to add boats and to fish on fish
aggregating devices even during the closure while not living up to
their responsibilities that are already in place.
I propose to postpone implementing the limit until a long-term
solution is agreed and implemented by all in the Commission, as this is
not a permanent solution. These areas are not in danger from U.S.
boats. However, the U.S. boats are the eyes and ears, and have in the
past found and reported illegal, unreported, and unregulated fishing in
the U.S. EEZ. The U.S. boats do not receive any reimbursement for time
or
[[Page 67360]]
fuel for this reporting, but it is the right thing to do.
While areas continue to be closed off, we are only hurting the
stocks as we are allowing the Pacific Island Parties to focus
international fishing efforts into their exclusive economic zones for
purely economic reasons, rather than focusing on efforts to truly
conserve, by limiting vessels. Remember these are highly migratory
species. I compare the focusing of effort to sunlight: Normally, it
will not hurt you, but if you focus sunlight through a magnifying
glass, it will burn; this is what is being done by driving effort into
smaller areas.
Postpone this proposed rule, or better, cancel it, as these areas
are already regulated by the United States. The problem can be
addressed and solved on the international level rather than strangle-
holding our fleet while others continue to add boats, skirt
regulations, and worst of all, not even enforce what is already in
place.
Support the U.S. fleet and the stock and push for vessel limits on
all fleets, as the catch phrase ``domestic fleet'' is simply Asian
boats that are flagged in the islands. Work with the U.S. fleet instead
of against it; we are the highest regulated fleet in the world, and we
are ahead of the curve, as we have already dropped our fishing efforts
(numbers of boats) in the 1980s when the U.S. Tuna Treaty (Treaty on
Fisheries between the Governments of Certain Pacific Island States and
the Government of the United States of America, also known as the South
Pacific Tuna Treaty, or SPTT) was signed, well ahead of other fleets
that are continuing to add effort.
Let's be logical and work together and protect the stock and our
food source.
Response: NMFS recognizes that if the United States imposes
Commission-mandated requirements on its vessels, such as limits on
fishing effort, and other members of the Commission do not do the
same--despite being required to do so under the Convention--for their
vessels, U.S. fishing vessels can be put at a competitive disadvantage
relative to the fishing vessels of other members. If that disadvantage
is severe enough, U.S. vessels could supply less product than they
formerly did, resulting in shifts in the sources of fish sold in U.S.
and other markets. NMFS also recognizes that if other Commission
members fail to fully implement the decisions of the Commission, such
as the provisions of CMM 2013-01, those decisions are less likely to
achieve their fish stock conservation objectives. However, in order to
satisfy the obligations of the United States as a party to the
Convention and member of the Commission, NMFS is required to implement
the Commission-mandated fishing effort limits for U.S. purse seine
vessels. Accordingly, the commenter's proposal to postpone or cancel
implementation would not satisfy U.S. obligations under the Convention.
NMFS is proceeding with implementation through this final rule. NMFS
also notes that the United States, as a member of the Commission, is
contributing to and has prioritized the development of the Commission's
compliance monitoring scheme, with the aim of improving compliance with
Commission decisions by all its members.
Comment 3: The American Tunaboat Association (ATA) is composed of
the owners of all U.S.-flag purse seine vessels fishing in the western
Pacific Ocean. There will be a direct and significant impact on the
U.S. fleet should this proposed rule be finalized as written.
The proposed reduction in allowable fishing days in the ELAPS from
2,588 to 1,828 would be a substantial loss of fishing opportunities for
U.S. vessels at a time of great uncertainty regarding fishing access
under the SPTT. The ATA understands that there may be little
flexibility in implementing the Commission measure establishing a
fishing day limit on the high seas, but we note that there is
flexibility for the U.S. EEZs. Therefore, in combining the two areas as
the ELAPS, a level higher than 1,828 fishing days is justified.
The ELAPS limits are not based on science relative to the
conservation of the tuna stocks. The science provider to the Commission
has not recommended, as a conservation measure, limits on catches of
tunas on the high seas, or in any particular economic zones. This is an
important point, because that truth provides the United States with
more flexibility in the manner in which it regulates the U.S. fleet.
For example, the United States could establish a larger number for
allowable catches in the U.S. EEZ based on using certain past high
years as base years. Given the variability in the availability of
highly migratory stocks in different areas during different years, and
the relevance of the fishing strategies that are employed in any given
year, such an approach would not be unreasonable.
The ATA urges NMFS to develop such an alternative approach and
provide for a larger ELAPS limit than 1,828 fishing days. We also
believe that, if all fishing by purse seine vessels is prohibited in
these remote island areas as a result of an expansion of the Pacific
marine monuments, as is being contemplated by the Administration (an
action strongly opposed by ATA), the consequent lost fishing
opportunities should be compensated for by allowing more fishing on the
same stocks elsewhere; that is, on the high seas. From a science or
conservation point of view, there would be no detriment to the tuna
stocks from such an approach.
Response: NMFS acknowledges that the proposed rule could have
direct economic impacts on participants in the U.S. purse seine fleet
in the western and central Pacific Ocean (WCPO). As described in the
RIR and IRFA prepared for this action, the impacts could be minor or
substantial, depending on such factors as the length of the closure of
the ELAPS in the event the limit is reached, whether the EEZs of the
FFA members remain available for fishing during such a closure, and
oceanic conditions.
This rule implements certain provisions of CMM 2013-01, which
directs coastal members like the United States to ``establish effort
limits, or equivalent catch limits for purse seine fisheries within
their EEZs that reflect the geographical distributions of skipjack,
yellowfin, and bigeye tunas, and are consistent with the objectives for
those species'' (excerpt from paragraph 23 of CMM 2013-01). CMM 2013-01
further requires, ``Those coastal States that have already notified
limits to the Commission shall restrict purse seine effort and/or catch
within their EEZs in accordance with those limits'' (excerpt from
paragraph 23 of CMM 2013-01). Because the United States has previously
notified the Commission of its purse seine effort limits for the U.S.
EEZ since the limits were first established in 2009 (in a final rule
published August 4, 2009; 74 FR 38544), the United States is obligated
to continue to apply the same limits for the U.S. EEZ. Thus, CMM 2013-
01 does not change the applicable purse seine fishing effort limit for
the U.S. EEZ, and for that reason NMFS does not agree that there is
flexibility in the limit for the U.S. EEZ or that a limit for the ELAPS
of more than 1,828 fishing days is justified in this rule to implement
provisions of CMM 2013-01.
Finally, on September 25, 2014, President Obama issued Proclamation
9173 extending the boundaries of the Pacific Remote Islands Marine
National Monument around Jarvis Island, Wake Island, and Johnston Atoll
to the outer limit of the U.S. EEZ. Under the Proclamation, commercial
fishing is prohibited in the expansion area. NMFS acknowledges that the
prohibition of commercial fishing within the expansion area will limit
the fishing grounds available to U.S. purse seine vessels; however, we
note that the expansion area represents a small
[[Page 67361]]
fraction of the U.S. purse seine fleet's typical fishing grounds in the
WCPO.
Changes From the Proposed Rule
No changes from the proposed rule have been made in this final
rule.
Classification
The Administrator, Pacific Islands Region, NMFS, has determined
that this final rule is consistent with the WCPFC Implementation Act
and other applicable laws.
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. The FRFA incorporates the 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 preamble of the
proposed rule and in the SUMMARY and SUPPLEMENTARY INFORMATION sections
of this final rule, above. The analysis follows.
Significant Issues Raised by Public Comments in Response to the IRFA
NMFS did not receive any comments on the IRFA itself, but two sets
of comments could pertain to small entities. See Comments 2 and 3 on
the proposed rule, and NMFS' responses, above.
Description of Small Entities to Which the Rule Will Apply
Small entities include ``small businesses,'' ``small
organizations,'' and ``small governmental jurisdictions.'' The Small
Business Administration (SBA) has established size standards for all
major industry sectors in the United States, including commercial
finfish harvesters (NAICS code 114111). A business primarily involved
in finfish harvesting 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 $20.5 million for all its affiliated operations
worldwide.
This final rule will apply to owners and operators of U.S. purse
seine vessels used for fishing in the Convention Area. The number of
affected vessels is the number licensed under the Treaty on Fisheries
between the Governments of Certain Pacific Island States and the
Government of the United States of America (South Pacific Tuna Treaty,
or SPTT). The current number of licensed vessels is 40, the maximum
number of licenses available under the SPTT (excluding joint-venture
licenses, of which there are five available under the SPTT, none of
which have ever been applied for or issued).
Based on (limited) available financial information about the
affected fishing vessels and the SBA's small entity size standards for
commercial finfish harvesters, and using individual vessels as proxies
for individual businesses, NMFS believes that all the affected fish
harvesting businesses are small entities. As stated above, there are
currently 40 purse seine vessels in the affected purse seine fishery.
Neither gross receipts nor ex-vessel price information specific to the
40 vessels are available to NMFS. Average annual receipts for each of
the 40 vessels during the last 3 years for which reasonably complete
data are available (2010-2012) were estimated as follows: The vessel's
reported retained catches of skipjack tuna, yellowfin tuna, and bigeye
tuna in each year were each multiplied by an indicative Asia-Pacific
regional cannery price for that species and year (developed by the
Pacific Islands Forum Fisheries Agency and available at https://www.ffa.int/node/425#attachments); the products were summed across
species for each year; and the sums were averaged across the 3 years.
The estimated average annual receipts for each of the 40 vessels were
less than the $20.5 million threshold used to classify businesses as
small entities under the SBA size standard for finfish harvesting
businesses.
Recordkeeping, Reporting, and Other Compliance Requirements
The final rule will not establish any new reporting or
recordkeeping requirements within the meaning of the Paperwork
Reduction Act. The classes of small entities subject to the
requirements and the types of professional skills necessary to fulfill
each of the requirements are described in the IRFA.
Disproportionate Impacts
There would be no disproportionate economic impacts between small
and large entities operating purse seine vessels as a result of this
final rule. Furthermore, there would be no disproportionate economic
impacts based on vessel size, gear, or homeport.
Steps Taken To Minimize the Significant Economic Impacts on Small
Entities
In previous rulemakings to establish or revise U.S. purse seine
fishing effort limits in the ELAPS in accordance with Commission
decisions, NMFS considered a number of alternatives. The alternatives
included different time scales for the limits (e.g., single-year versus
multiple-year limits); whether separate limits or a combined limit
would be established in the U.S. EEZ and high seas portions of the
ELAPS; whether the limit(s) would be allocated to individual vessels;
and different magnitudes of the limit(s).
The first category of alternatives, time scales, is not relevant
here because the objective is to implement the required fishing effort
limit for 2014 only.
The second category of alternatives--whether or not to break up the
ELAPS limit into separate limits for the U.S. EEZ and the high seas
portions of the ELAPS--would provide less operational flexibility for
affected purse seine vessels, and thus be more constraining and costly
than the proposed limit. It is rejected for that reason.
The third category of alternatives, allocating the limit among
individual vessels, would likely alleviate any adverse impacts of a
race-to-fish that might occur as a result of establishing the
competitive fishing effort limits as in the proposed rule. As described
in the IRFA, those potential impacts include lower prices for landed
product, as well as risks to performance and safety stemming from
fishing during sub-optimal times. Those impacts, however, are expected
to be minor. Furthermore, developing the necessary allocation criteria
and procedures would be a substantial and lengthy process that probably
could not be completed in time to implement this limit for 2014. For
these reasons, this alternative is rejected.
Regarding the fourth category of alternatives (the magnitude of the
limits), NMFS considered, for the 2013 rule that established the 2013
ELAPS limit and existing 2014 ELAPS limit, both smaller and larger
limits for the ELAPS. Smaller limits, being more constraining and
costly to affected fishing businesses, are not considered further here.
With respect to larger limits, in the 2013 rule, NMFS considered an
alternative that would be based in part on the fleet's greatest annual
level of fishing effort in the U.S. EEZ (on an average per-vessel
basis, then expanded to a 40-vessel-equivalent) during the 1997-2010
time period. For this rule, NMFS considered an alternative using the
same approach considered in the 2013 rule. Using that approach, the
limit in the U.S. EEZ would be 1,655 fishing days, and when combined
with the high seas limit of 1,270 fishing days, the total ELAPS limit
would be 2,925 fishing days. Because
[[Page 67362]]
this alternative limit is greater and thus less constraining than a
limit of 1,828 fishing days (as well as the existing limit of 2,588
fishing days), the costs of complying with this alternative would be
less than or equal to those of the proposed limit of 1,828 fishing
days. This alternative is rejected because it would depart from the way
that the effort limits established for the period 2009-2013 were
determined. The approach used in formulating the limit in this final
rule is the same as that used to establish ELAPS limits in the 2009
rule, the 2011 rule, and the 2013 rule, and affected entities have been
exposed to the impacts of those limits for the past 5 years.
Furthermore, as explained in NMFS' response to Comment 3, above, CMM
2013-01 does not all allow for higher purse seine effort limits in the
U.S. EEZ than those already notified to the Commission.
The alternative of taking no action at all, which would leave the
existing 2014 ELAPS limit of 2,588 fishing days in place, is rejected
because it would fail to accomplish the objective of the WCPFC
Implementation Act or satisfy the obligations of the United States as a
Contracting Party to the Convention.
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. As part of
this rulemaking process, a small entity compliance guide has been
prepared. The guide will be sent to permit and license holders in the
affected fisheries. The guide and this final rule will also be
available at www.fpir.noaa.gov 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: November 6, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 300 is 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. In Sec. 300.223, paragraph (a)(1) is revised to read as follows:
Sec. 300.223 Purse seine fishing restrictions.
* * * * *
(a) * * *
(1) For calendar year 2014 there is a limit of 1,828 fishing days.
* * * * *
[FR Doc. 2014-26830 Filed 11-12-14; 8:45 am]
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