[Federal Register Volume 83, Number 138 (Wednesday, July 18, 2018)]
[Rules and Regulations]
[Pages 33851-33870]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15341]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 180209155-8589-02]
RIN 0648-BH77
International Fisheries; Western and Central Pacific Fisheries
for Highly Migratory Species; Fishing Limits in Purse Seine and
Longline Fisheries, Restrictions on the Use of Fish Aggregating Devices
in Purse Seine Fisheries, and Transshipment Prohibitions
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: Under authority of the Western and Central Pacific Fisheries
Convention Implementation Act (WCPFC Implementation Act), NMFS issues
this final rule that establishes limits on fishing effort by U.S. purse
seine vessels in the U.S. exclusive economic zone 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); restrictions regarding the use of fish aggregating
devices (FADs) for U.S. purse seine fishing vessels; limits on the
catches of bigeye tuna by U.S. longline vessels in the Convention area;
prohibitions on U.S. vessels used to fish for highly migratory species
from engaging in transshipment in a particular area of the high seas
(the Eastern High Seas Special Management Area or EHSSMA); and removal
of existing reporting requirements for vessels transiting the EHSSMA.
The rule also makes corrections to outdated cross references in
existing regulatory text. This action is necessary to satisfy the
obligations of the United States under the Convention, to which it is a
Contracting Party.
DATES: This rule is effective on July 18, 2018, except for the revised
reporting requirements in 50 CFR 300.218(g), which contains information
collection requirements that have not been approved by the Office of
Management and Budget (OMB). NOAA will publish a document in the
Federal Register announcing the effective date for the revised
reporting requirements upon OMB approval.
Compliance dates: The compliance date for the amendment to 50 CFR
300.223(b), the FAD prohibition period, is July 18, 2018. The
compliance date for the amendment to 50 CFR 300.225, the EHSSMA
transshipment prohibition, is January 1, 2019.
ADDRESSES: Copies of supporting documents prepared for this final rule,
including the regulatory impact review (RIR), the 2015 programmatic
environmental assessment (PEA), the 2012 environmental assessment, and
supplemental information report (SIR) prepared for National
Environmental Policy Act (NEPA) purposes, as well as the proposed rule
(83 FR 21748; May 10, 2018), are available via the Federal e-rulemaking
Portal, at www.regulations.gov (search for Docket ID NOAA-NMFS-2018-
0050). Those documents 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.
A final regulatory flexibility analysis (FRFA) prepared under
authority of the Regulatory Flexibility Act is included in the
Classification section of the SUPPLEMENTARY INFORMATION section of this
document.
FOR FURTHER INFORMATION CONTACT: Rini Ghosh, NMFS PIRO, 808-725-5033.
SUPPLEMENTARY INFORMATION: On May 10, 2018, NMFS published a proposed
rule in the Federal Register (83 FR 21748). The proposed rule was open
for public comment until May 25, 2018.
This final rule is issued under the authority of the Western and
Central Pacific Fisheries Convention Implementation Act (WCPFC
Implementation Act) (16 U.S.C. 6901 et seq.), which authorizes the
Secretary of Commerce, in consultation with the Secretary of State and
the Secretary of the Department in which the United States Coast Guard
is operating (currently the Department of Homeland Security), to
promulgate such regulations as may be necessary to carry out the
obligations of the United States under the Convention, including the
decisions of the Commission for the Conservation and Management of
Highly Migratory Fish Stocks in the Western and Central Pacific Ocean
(WCPFC or Commission). The WCPFC Implementation Act further provides
that the Secretary of Commerce shall ensure consistency, to the extent
practicable, of fishery management programs administered under the
WCPFC Implementation Act and the Magnuson-Stevens Fishery Conservation
and Management Act
[[Page 33852]]
(MSA; 16 U.S.C. 1801 et seq.), as well as other specific laws (see 16
U.S.C. 6905(b)). The Secretary of Commerce has delegated the authority
to promulgate regulations under the WCPFC Implementation Act to NMFS. A
map showing the boundaries of the area of application of the Convention
(Convention Area), which comprises the majority of the western and
central Pacific Ocean (WCPO), can be found on the WCPFC website at:
www.wcpfc.int/doc/convention-area-map.
This final rule implements specific provisions of two recent
Commission decisions: Conservation and Management Measure (CMM) 2017-
01, ``Conservation and Management Measure for Bigeye, Yellowfin, and
Skipjack tuna in the Western and Central Pacific Ocean;'' and CMM 2016-
02, ``Conservation and Management Measures for Eastern High Seas Pocket
Special Management Area.'' The rule also makes corrections to outdated
cross references in existing regulatory text. The preamble to the
proposed rule provides background information on the Convention and the
Commission, the provisions that are being implemented in this rule, and
the basis for the proposed regulations, which is not repeated here.
The Action
The elements of the final rule are detailed below. The
administrative changes to correct outdated references in existing
regulatory text are described at the end.
Some of the provisions in CMM 2017-01 apply only to calendar year
2018, while others are applicable until February 10, 2021. Because the
Commission likely will continue to implement similar management
measures regarding FADs and longline bigeye tuna catch limits beyond
2018, and to avoid a lapse in the management of the fishery, most of
the elements of CMM 2017-01 in the final rule will remain effective
until they are replaced or amended. However, the elements implementing
the purse seine effort limits will be effective for 2018 only, as
explained further below.
Longline Bigeye Tuna Catch Limits
Under the final rule, there is a calendar year catch limit of 3,554
metric tons (mt) of bigeye tuna for U.S. longline vessels fishing in
the Convention Area that would remain effective until replaced. In the
proposed rule, NMFS stated that it was possible that the limit for 2018
would be adjusted downward to account for any overage of the 2017
limit. However, NMFS has confirmed that the 2017 limit was not exceeded
so no adjustment of the 2018 limit is needed.
The calendar year longline bigeye tuna catch limit will apply only
to U.S-flagged longline vessels operating as part of the U.S. longline
fisheries. The limit will not apply to U.S. longline vessels operating
as part of the longline fisheries of American Samoa, CNMI, or Guam.
Existing regulations at 50 CFR 300.224(b), (c), and (d) detail the
manner in which longline-caught bigeye tuna is attributed among the
fisheries of the United States and the U.S. Participating Territories.
Consistent with the basis for the limits prescribed in CMM 2017-01
and with regulations issued by NMFS to implement bigeye tuna catch
limits in U.S. longline fisheries as described below, the catch limit
is measured in terms of retained catches--that is, bigeye tuna that are
caught by longline gear and retained on board the vessel.
1. Announcement of the Limit Being Reached
As set forth under the existing regulations at 50 CFR 300.224(e),
if NMFS determines that the limit is expected to be reached in a
calendar year, NMFS will publish a document in the Federal Register to
announce specific fishing restrictions that will be effective from the
date the limit is expected to be reached until the end of the calendar
year. NMFS will publish notification of the restrictions at least 7
calendar days before the effective date to provide vessel owners and
operators with advance notice. Periodic forecasts of the date the limit
is expected to be reached will be made available to the public, such as
by posting on a website, to help vessel owners and operators plan for
the possibility of the limit being reached.
2. Restrictions After the Limit Is Reached
As set forth under the existing regulations at 50 CFR 300.224(f),
if the limit is reached, the restrictions that will be in effect will
include the following:
a. Retain on board, transship, or land bigeye tuna: Starting on the
effective date of the restrictions and extending through December 31 of
the given calendar year, it will 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 can be retained on board,
transshipped, and/or landed, provided that they are 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 is not subject to this 14-day landing
restriction, so these vessels will be able to land bigeye tuna more
than 14 days after the restrictions become effective.
Second, bigeye tuna captured by longline gear can be retained on
board, transshipped, and/or landed if they are caught by a fishing
vessel registered for use under a valid American Samoa Longline Limited
Access Permit, or if they are landed in American Samoa, Guam, or CNMI.
However, the bigeye tuna must not be caught in the portion of the U.S.
EEZ surrounding the Hawaiian Archipelago, and must be 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 can be retained on
board, transshipped, and/or landed if they are caught by a vessel that
is included in a specified fishing agreement under 50 CFR 665.819(d),
in accordance with 50 CFR 300.224(f)(iv).
b. Transshipment of bigeye tuna to certain vessels: Starting on the
effective date of the restrictions and extending through December 31 of
the calendar year, it will 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.
c. 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, two additional, related
prohibitions would be in effect starting on the effective date of the
restrictions and extending through December 31 of the calendar year.
First, vessels are prohibited from fishing 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 still must 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 must be
stowed in a manner so as not to be readily available for fishing while
the vessel is in the Convention Area;
[[Page 33853]]
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. These two
prohibitions do 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. This second group
includes 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 conditions
described above, and vessels included in a specified fishing agreement
under 50 CFR 665.819(d), in accordance with 50 CFR 300.224(f)(iv).
FAD Restrictions
There is a FAD prohibition period from July through September in
each calendar year in the Convention Area between the latitudes of
20[deg] N and 20[deg] S (inclusive of the EEZs and high seas in the
Convention Area), and an additional two-month FAD prohibition period
just on the high seas in that area in November and December in each
calendar year. Under CMM 2017-01, the United States can choose to
implement the additional two-month FAD prohibition period in either
April and May or November and December. As stated in the preamble to
the proposed rule, based on the expected economic impacts on U.S.
fishing operations and the nation as a whole, and expected
environmental and other effects, NMFS expects that a high seas FAD
prohibition period in November and December may be somewhat more cost-
effective than a FAD prohibition period in April and May. NMFS
specifically sought public comment on which option is more appropriate.
Four comment letters were received in support of implementing the
additional high seas FAD prohibition period in November and December,
and one comments letter was received requesting that consideration be
given to having the additional prohibiton period take place in April
and May in future years, as detailed in the comment summary and
response section below.
As currently defined in 50 CFR 300.211, a FAD is ``any artificial
or natural floating object, whether anchored or not and whether
situated at the water surface or not, that is capable of aggregating
fish, as well as any object used for that purpose that is situated on
board a vessel or otherwise out of the water. The definition of FAD
does not include a vessel.'' Under this final rule, the regulatory
definition of a FAD would not change. Although the definition of a FAD
does not include a vessel, the restrictions during the FAD prohibition
periods include certain activities related to fish that have aggregated
in association with a vessel, or drawn by a vessel, as described below.
The prohibitions applicable to the FAD-related measures are in
existing regulations at 50 CFR 300.223(b)(1)(i)-(v). Specifically,
during the July-September FAD prohibition periods in each calendar
year, and on the high seas in November and December, owners, operators,
and crew of fishing vessels of the United States equipped with purse
seine gear shall not do any of the following activities in the
Convention Area in the area between 20[deg] N latitude and 20[deg] S
latitude:
(1) Set a purse seine around a FAD or within one nautical mile of a
FAD;
(2) Set a purse seine in a manner intended to capture fish that
have aggregated in association with a FAD or a vessel, such as by
setting the purse seine in an area from which a FAD or a vessel has
been moved or removed within the previous eight hours, setting the
purse seine in an area in which a FAD has been inspected or handled
within the previous eight hours, or setting the purse seine in an area
into which fish were drawn by a vessel from the vicinity of a FAD or a
vessel;
(3) Deploy a FAD into the water;
(4) Repair, clean, maintain, or otherwise service a FAD, including
any electronic equipment used in association with a FAD, in the water
or on a vessel while at sea, except that a FAD may be inspected and
handled as needed to identify the FAD, identify and release
incidentally captured animals, un-foul fishing gear, or prevent damage
to property or risk to human safety; and a FAD may be removed from the
water and if removed may be cleaned, provided that it is not returned
to the water; and
(5) From a purse seine vessel or any associated skiffs, other
watercraft or equipment, submerge lights under water; suspend or hang
lights over the side of the purse seine vessel, skiff, watercraft or
equipment, or direct or use lights in a manner other than as needed to
illuminate the deck of the purse seine vessel or associated skiffs,
watercraft or equipment, to comply with navigational requirements, and
to ensure the health and safety of the crew. These prohibitions would
not apply during emergencies as needed to prevent human injury or the
loss of human life, the loss of the purse seine vessel, skiffs,
watercraft or aircraft, or environmental damage.
This final rule revises the introductory paragraph of 50 CFR
300.223(b)(1) to make it clearer that the prohibitions apply only to
owners, operators, and crew of purse seine fishing vessels. NMFS has
recently received inquiries as to whether the prohibitions apply to the
owners, operators, and crew of vessels using other gear types. This
final rule also makes a technical change to 50 CFR 300.223(b)(1)(iv)(B)
to clarify that, during the FAD prohibition periods, a FAD may be
removed from the water to be repaired, cleaned, maintained, or
otherwise serviced, provided that it is not returned to the water. This
minor change ensures consistency with the introductory language in that
paragraph.
Under the final rule, an active FAD is defined as a FAD that is
equipped with a buoy with a clearly marked reference number allowing
its identification and equipped with a satellite tracking system to
monitor its position, as specified by the definition of instrumented
buoy in CMM 2017-01.
CMM 2017-01 specifies that the buoy shall be activated exclusively
on board the vessel. In order to implement this provision, the final
rule specifies that the tracking equipment must be turned on while the
FAD is onboard the vessel and before it is deployed in the water. In
accordance with CMM 2017-01, under the final rule, each U.S. purse
seine vessel would have a limit of 350 active drifting FADs in the
Convention Area at any one time.
Purse Seine Fishing Effort Limits
In the past, NMFS has implemented the U.S. purse seine fishing
effort limits on the high seas and in the U.S. EEZ adopted by the
Commission as a single combined limit in a combined area of the high
seas and U.S. EEZ termed the Effort Limit Area for Purse Seine or
ELAPS. CMM 2017-01 and predecessor conservation and management measures
have always treated the high seas and EEZ limits separately, and these
decisions do not provide Members, Cooperating Non-members, and
Participating Territories (collectively referred to here as
``members'') the express authority to combine them. Nevertheless, NMFS'
reasoning for combining the high seas and U.S. EEZ limits was that it
afforded more operational flexibility to the fleet and there were no
substantial conservation effects to living marine resources for
treating the two areas separately or
[[Page 33854]]
combined, so long as the overall effort remained equal or less than the
sum of the two limits.
For several years the United States has argued that the
Commission's purse seine effort limits are having a disproportionate
burden on the economy of American Samoa, particularly fish processing
facilities like the one tuna cannery in operation. At the most recent
regular session of the Commission in December 2017, the Commission
finally took consensus action to lessen that burden. Specifically,
Paragraph 29 of CMM 2017-01 allows the United States to address the
impact of the Commission limits on American Samoa tuna processing by
transfering 100 fishing days from the U.S. EEZ effort limit to the high
seas effort limit, and to potentially regain these transferred days in
the U.S. EEZ effort limit, provided that limit has been reached by
October 1, 2018 (subject to certain landing requirements). This
provision is applicable to 2018 only.
In light of CMM 2017-01's Paragraph 29 allowing the United States
to transfer some of its EEZ days to the high seas in 2018, there is a
need to reconsider NMFS' past practice of combining the U.S. high seas
limit and U.S. EEZ limit.
CMM 2017-01 specifies separate EEZ (Attachment 1, Table 1) and high
seas (Attachment 1, Table 2) purse seine effort limits for the United
States. However, previous CMMs on tropical tunas also specified
separate EEZ and high seas effort limits for the United States. The new
provision included in CMM 2017-01 that was not included in previous
CMMs on tropical tunas is the transfer provision in Paragraph 29. In
the past, there was no express constraint on NMFS' ability to transfer
the entire U.S. EEZ limit to the high seas limit and the entire high
seas limit to the U.S. EEZ limit. However, in light of the new transfer
provision in CMM 2017-01 for 2018, specifying clear rules and
guidelines for the number and manner a transfer of days between the
high seas limit and U.S. EEZ must take place, NMFS believes that the
U.S. EEZ and high seas purse seine effort limits for 2018 must be
implemented separately. That is, NMFS needs to separately enforce the
high seas and U.S. EEZ days in order to ensure that the high seas
fishing effort limit--as augmented under paragraph 29 by 100 days from
the U.S. EEZ--is not exceeded. Accordingly, NMFS will not combine the
two limits under a single ELAPS limit for 2018. This change is
consistent with the plain reading of CMM 2017-01, which specifies a
separate limit for the U.S. EEZ and a separate limit for the high seas
for the United States, as well as the transfer provisions in Paragraph
29.
In the proposed rule, NMFS had stated that all of the elements for
CMM 2017-01 would remain in place until they are replaced or modified.
However, based on the time-limited application of Paragraph 29, and the
comments received regarding the purse seine effort limits, as detailed
in the Comments and Response section below, NMFS believes that it is
appropriate to implement the purse seine effort limits in this final
rule for 2018 only. Implementation of Commission-specified purse seine
effort limits in future years, including whether the limits for the
U.S. EEZ and high seas are combined or implemented separately and how
transfers between the limits may take place, will be determined after
consideration of future decisions adopted by the Commission.
CMM 2017-01 specifies a limit of 1,270 fishing days per year for
the high seas and a limit of 558 fishing days per year for the U.S.
EEZ. Applying the provisions of Paragraph 29, the final rule would
establish a limit of 1,370 fishing days on the high seas and a separate
limit of 458 fishing days in the U.S. EEZ. These numbers utilize the
provision of CMM 2017-01 provided to alleviate the economic hardship
experienced by American Samoa during a fishery closure and transfer 100
fishing days from the U.S. EEZ effort limit to the high seas effort
limit.
CMM 2017-01 also specifies that the United States may add an
additional 100 fishing days to its annual purse seine fishing effort
limit in the U.S. EEZ if the limit in the U.S. EEZ is reached by
October 1, 2018. Thus, under the final rule, in the event that NMFS
expects that the U.S. EEZ effort limit would be reached by October 1,
2018, NMFS would publish a document in the Federal Register, no later
than seven days prior to October 1, to increase the U.S. EEZ effort
limit by 100 fishing days for 2018.
The meaning of ``fishing day'' is defined at 50 CFR 300.211; that
is, any day in which a fishing vessel of the United States equipped
with purse seine gear searches for fish, deploys a FAD, services a FAD,
or sets a purse seine, with the exception of setting a purse seine
solely for the purpose of testing or cleaning the gear and resulting in
no catch.
NMFS will monitor the number of fishing days spent in the U.S. EEZ
and on the high seas using data submitted in logbooks and other
available information. If and when NMFS determines that a limit is
expected to be reached by a specific future date, it will publish a
document in the Federal Register announcing that the purse seine
fishery in the area where the limit is expected to be reached will be
closed starting on a specific future date and will remain closed until
the end of the calendar year. NMFS will publish that document at least
seven days in advance of the closure date. Starting on the announced
closure date, and for the remainder of calendar year, it will be
prohibited for U.S. purse seine vessels to fish in the area where the
limit is expected to be reached, except that such vessels would not be
prohibited from bunkering (refueling) during a fishery closure. NMFS
published an interim rule on August 25, 2015 (see 80 FR 51478) to
remove the restriction that prohibited U.S. purse seine vessels from
conducting bunkering during fishery closures of the ELAPS. NMFS will
continue those regulations as part of this final rule so that bunkering
would be allowed during any fishery closures of the U.S. EEZ or high
seas due to reaching a limit in a given calendar year.
Under existing regulations at 50 CFR 300.218(g), NMFS can direct
U.S. purse seine vessel owners and operators to provide daily FAD
reports, specifying the number of purse seine sets made on FADs during
that day. NMFS promulgated this regulation to help track a limit on the
number of FAD sets that was applicable in previous years but recognizes
that this information is also valuable to help predict when a fishing
effort limit is expected to be reached with greater certainty. Thus,
under this final rule, NMFS is revising the existing regulations so
that NMFS can direct U.S. purse seine vessel owners and operators to
provide reports on the fishing activity of the vessel (e.g., setting,
transiting, searching), location, and type of set, in order to obtain
better data for tracking the fishing effort limits.
Eastern High Seas Special Management Area
This final rule removes the requirements at 50 CFR 300.222(oo) and
50 CFR 300.225 for U.S. commercial fishing vessels to provide reports
prior to entering or exiting the EHSSMA. This final rule also prohibits
all U.S. commercial fishing vessels fishing for highly migratory
species (HMS) from engaging in transshipments in the EHSSMA, beginning
on January 1, 2019.
Administrative Changes to Existing Regulations
The regulations at 50 CFR 300.217(b) and 300.218(a)(2)(v) contain
outdated cross references that are corrected in this final rule. In
Sec. 300.217, paragraph (b)(1) is revised to provide a cross
[[Page 33855]]
reference to Sec. 300.336(b)(2), not Sec. 300.14(b), and in Sec.
300.218(a)(2)(v), the cross reference is to Sec. 300.341(a) instead of
to Sec. 300.17(a) and (b). Sections 300.14(b) and 300.17(a) and (b) no
longer exist and have been replaced through a new regulatory action
implementing provisions of the High Seas Fishing Compliance Act (16
U.S.C. 5501 et seq.).
Comments and Responses
NMFS received nine comment letters on the proposed rule. The
comments are summarized below, followed by responses from NMFS.
Comment 1: Two commenters provided general statements of support
for the limits and restrictions that would be implemented in the rule.
One of the commenters expressed support for more stringent fishing
limits for all waters. According to the commenters, overfishing has
devastating ecological and economic consequences.
Response: NMFS acknowledges and notes the comments.
Comment 2: Representatives of the Hawaii Longline Association (HLA)
provided comments supporting the establishment of the 3,554 mt longline
bigeye tuna catch limit. HLA also requested that NMFS proceed
carefully, but quickly, with the process to implement regulations under
a separate rulemaking that would allow longline bigeye tuna catch to be
attributed to the U.S. participating territories in the WCPFC in 2018
under specified fishing agreements. This would allow any fish landed
immediately after the 3,554 mt limit is reached in 2018 to be
attributed to the U.S. territory that is a party to the specified
fishing agreement and would prevent a fishery closure. HLA noted that,
in past years, the Hawaii deep-set longline fishery has been closed for
extended periods of time in the WCPO, even though a specified fishing
agreement had been executed and approved, because NMFS delayed its
issuance of territory specification regulations. Thus, some U.S. deep-
set longline vessels were unable to fish for no reason other than
administrative delay.
Response: NMFS is proceeding with the separate rulemaking to
implement regulations that would provide for longline bigeye tuna catch
to be attributed to the U.S. participating territories in the WCPFC in
2018 under specified fishing agreements as expeditiously as possible.
Comment 3: Representatives from different sectors of the U.S. purse
seine fleet provided comments regarding implementation of the purse
seine effort limits for the U.S. EEZ and high seas areas. One commenter
expressed support for having separate limits for the high seas and for
the U.S. EEZ, while five commenters objected to the establishment of
separate purse seine effort limits for the U.S. EEZ and high seas
areas. The commenters that objected stated that for the past nine
years, NMFS has combined those two areas with their associated limits
into one area (the Effort Limit Area for Purse Seine, or ELAPS) to
provide flexibility to the U.S. WCPO purse seine industry, and the
process has worked very well. They claimed that by creating separate
limits for the U.S. EEZ and the high seas now, NMFS will, if it
proceeds with the proposed rule, effectively reduce fishing
opportunities for the U.S. fleet by over 400 days. They stated that the
proposed rule provides no explanation for why this previous reasoning
no longer applies or why NMFS has changed its position on this
important issue. According to the commenters, it appears that the
significant change to implement separate limits is being proposed to
merely aid monitoring, but there is no apparent reason why sufficient
monitoring cannot occur to satisfy CMM 2017-01 under a combined limit
and none is provided by NMFS. According to one commenter, NMFS is
required by law to provide a rationale for its decision and to
carefully address and explain its changes in position. The commenter
stated that NMFS' proposal to implement separate effort limits is
arbitrary and capricious, and therefore unlawful under the
Administrative Procedure Act (APA).
Response: As stated above and in the preamble to the proposed rule,
NMFS acknowledges that in the past NMFS has implemented the U.S. purse
seine fishing effort limits on the high seas and in the U.S. EEZ
adopted by the Commission as a single combined limit in a combined area
of the high seas and U.S. EEZ termed the Effort Limit Area for Purse
Seine or ELAPS. NMFS' reasoning for combining the high seas and U.S.
EEZ limits was that it afforded more operational flexibility to the
fleet and there are no substantial differences in terms of effects to
living marine resources between the two approaches--treating the two
areas separately or combining the areas--so long as the overall effort
remained equal or less than the sum of the limits of the two areas.
Although NMFS agrees with the comment that a single combined effort
limit would afford more operational flexibility to the fleet, as
explained above, the plain reading of Paragraph 29 of CMM 2017-01,
which includes specific rules and guidelines for the United States for
transferring fishing days between the high seas effort limit area and
the U.S. EEZ effort limit area, precludes NMFS from doing so in 2018.
As noted above, for several years the United States has argued that
the Commission's purse seine effort limits are having a
disproportionate burden on the American Samoa economy, particularly
fish processing facilities like the one tuna cannery in operation. At
its 14th regular session in December 2017, the Commission took positive
steps to lessen that burden. CMM 2017-01 now allows the United States
to address the impact of the Commission limits on American Samoa tuna
processing by transfering 100 fishing days from the U.S. EEZ effort
limit to the high seas effort limit, and to potentially regain these
transferred days in the U.S. EEZ effort limit provided that limit has
been reached by October 1, 2018 (subject to certain landing
requirements). The Commission's decision was intended to provide U.S.
purse seiners with an increase of 100 fishing days for 2018 along with
an incentive to land their catch in American Samoa.
Commission decisions have always identified separate high seas and
EEZ fishing effort limits for CCMs. The new provision included in CMM
2017-01 that was not included in previous CMMs on tropical tunas is the
transfer provision in Paragraph 29. In the past, there was no express
constraint on NMFS' ability to transfer the entire U.S. EEZ limit to
the high seas limit and the entire high seas limit to the U.S. EEZ
limit. However, in light of the new transfer provision in CMM 2017-01
for 2018, specifying clear rules and guidelines for the number of days
available for transfer and the manner in which a transfer of days
between the high seas limit and U.S. EEZ limit must take place, NMFS
believes that the U.S. EEZ and high seas purse seine effort limits for
2018 must be implemented separately. That is, NMFS must separately
enforce the high seas and U.S. EEZ fishing effort limits in order to
ensure that the high seas fishing effort limit of 1,370 days--as
augmented under paragraph 29 by 100 days from the U.S. EEZ--is not
exceeded. Enforcing only a single combined limit of 1,828 days could
result in the augmented high seas limit being exceeded, in violation of
CMM 2017-01.
CMM 2017-01 specifies a limit of 1,270 fishing days per year for
the high seas and a limit of 558 fishing days per year for the U.S.
EEZ, and includes specific rules and guidelines for transferring
fishing days from the U.S.EEZ limit to the high seas limit. The
[[Page 33856]]
final rule establishes a limit of 1,370 fishing days on the high seas
and a separate limit of 458 fishing days in the U.S. EEZ (or 558 days
if the limit is reached by October 1, 2018) for 2018 in accordance with
the transfer provisions set forth in Paragraph 29 of CMM 2017-01 and in
order to implement CMM 2017-01 in accordance with the Commission's
clear intent. NMFS is not implementing the separate limits merely to
aid in monitoring, as the commenters suggest, but rather to implement
the clear requirements of CMM 2017-01.
It is important to note that, under the final rule, the overall
number fishing days in the high seas and U.S. EEZ remain the same
(1,828) as the overall number of fishing days allowed in previous
years, and could actually be higher (1,928) if the certain conditions
described above are met. Accordingly, NMFS disagrees that enforcing
separate high seas and EEZ limits under the final rule--which NMFS
believes is compelled by a plain reading of CMM 2017-01--unfairly
reduces the number of available fishing days to some foreign-built U.S.
purse seiners. These foreign-built U.S. purse seine vessels primarily
fish under licenses issued pursuant to the South Pacific Tuna Treaty
(SPTT) and, because they do not have fishery endorsements on their U.S.
Coast Guard Certificates of Documentation, they are generally
prohibited from fishing within the U.S. EEZ. However, these
restrictions on operating within the U.S. EEZ have long been in effect
(see 46 U.S.C. 12113).
Currently, 9 of the 37 U.S. purse seine vessels with WCPFC Area
Endorsements have that fishery endorsement, so these vessels would be
able to continue fishing up to the 458 day limit in the U.S. EEZ (or
558 day limit, if the U.S. EEZ limit is reached by October 1, 2018)
when the limit in the high seas is reached in 2018. Furthermore, the
foreign-built U.S.-flagged vessels, which are ineligible to fish within
the U.S. EEZ, retain the option of shifting their fishing effort either
to foreign zones under the SPTT or into the eastern Pacific Ocean
(EPO). Please also see below for the response to Comment 4 on the
potential loss of 400 fishing days to the fleet.
NMFS is implementing separate limits in 2018, because of the
language in Paragraph 29 of CMM 2017-01 for 2018. Implementation of
Commission-specified purse seine effort limits in future years,
including whether the limits for the U.S. EEZ and high seas are
combined or implemented separately and how transfers between the limits
may take place, will be determined after consideration of future
decisions adopted by the Commission.
Comment 4: Several comments from U.S. purse seine industry
representatives related to NMFS' assessment of the economic effects of
the proposed purse seine fishing effort limits. One commenter stated
that NMFS appears to believe that its proposal to split the ELAPS is a
mere administrative matter with no substantial consequences. This and
other commenters stated that the proposal would have very significant
impacts on many vessels in the U.S. purse seine fleet, potentially
costing them millions of dollars in lost fishing opportunities.
One commenter stated that NMFS underestimates the severe economic
impact the proposed rule would have on the U.S. purse seine fleet, and
another stated that the regulatory impact review (RIR) prepared for the
proposed rule makes no meaningful attempt to quantify the costs of the
proposed splitting of the ELAPS limits. The commenter stated that based
on the history of fishing in the U.S. EEZ, as presented in the RIR, and
absent a strong El Ni[ntilde]o and in an average year, almost 440
fishing days would go unused as a result of the fishing days under the
U.S. EEZ limit not being available on the high seas. Under the current
ELAPS arrangement, those 440 fishing days are available to the entire
purse seine fleet. Another commenter also stated that 440 fishing days
would go unused, effectively reducing the allocation of fishing days to
the U.S. fleet, and additional commenters similarly stated that having
separate limits for the U.S. EEZ and the high seas would result in the
fishing days under the U.S. EEZ being unused or wasted. Two commenters
stated that the cost of ``upfront'' fishing days under the SPTT
($12,500 per fishing day, according to one commenter) can be used to
estimate the value of those lost fishing days, and went on to comment
that the aggregate cost to the 25 purse seine vessels without fishery
endorsements on their U.S. Coast Guard Certificates of Documentation
would be about $5,500,000 per year, or $220,000 per vessel per year.
Several commenters provided comments stating that alternative
fishing opportunities--in the event the U.S. EEZ and/or the high seas
are closed to fishing--would be constrained in the latter half of the
year, when the high seas would more likely be closed. With respect to
the opportunity of fishing in foreign EEZs, several commenters pointed
out the high access fees required for such fishing. With respect to
fishing in the EPO, several commenters pointed out the limited fishing
capacity available in the EPO, and noted that the high seas portion of
the area of overlap between the WCPFC and Inter-American Tropical Tuna
Commission (IATTC) would be subject to the proposed high seas limit.
One commenter stated that NMFS has indicated in the past that there was
no additional capacity available to place vessels on the list of U.S.
vessels eligible to fish in the EPO, and asked for clarication of this
option, given that it appears to be one of the key alternatives
available to vessels impacted by the proposed rule.
With respect to the alternative of not fishing, one commenter
stated that NMFS' statement that a vessel would have some variable
costs reduced if it is forced to stop fishing is a ridiculous statement
because it does not reflect the reality of a bank's view on missed
payments, and that NMFS' statement that vessels could use non-fishing
time to do maintenance and repair assumes there will be money left to
do so. The same commenter stated that NMFS' analysis fails to take into
account that, of the $10 million grossed by the fleet, $2 million net
comes off the top for access fees under the SPTT.
One commenter stated that the proposed rule's costs to many vessels
in the U.S. purse seine fleet would be to the benefit of only a few
U.S. vessels, and more broadly, their foreign competitors. The
commenter explained that under the MSA, NMFS may not provide sector
preference within the fleet, but in this case a defacto sector
preference under the MSA is beneficial to foreign nations, by allowing
them to take advantage of U.S. fleet interests, reducing U.S. fleet
access, and increasing costs for the U.S. fleet, while providing
further benefits to foreign nations whose interests are not necessarily
aligned with the interests of the U.S. Government.
One commenter stated that having separate limits for the U.S. EEZ
and the high seas would put the vessels that support American Samoa at
an economic disadvantage.
Several commenters stated that having separate limits would hurt
the cannery and possible employment for the people of American Samoa.
These commenters stated that there is not a consistent amount of fish
in the U.S. EEZ for the vessels to be able to fish there, and that
closing the U.S. EEZ and the high seas earlier would cause vessels to
operate further from American Samoa, making it less likely that they
will unload in American Samoa.
[[Page 33857]]
One commenter stated that the proposed rule would needlessly
increase the U.S. fisheries trade deficit by just more than $21
million.
Response: First, NMFS notes that it has revised the RIR from the
original version, dated April 2018, that was made available with the
proposed rule. The original version included provisional estimates for
certain 2017 fishery performance indicators, including the numbers of
fishing days used in the U.S. EEZ and on the high seas. Those estimates
have since been finalized and corrections to other estimates have been
made, and the revised RIR has been updated accordingly. The revised
analysis does not alter the conclusions or determinations made in the
original RIR.
NMFS agrees that a combined limit would afford more operational
flexibility to the fleet as a whole, but as explained above, NMFS
believes a plain reading of Paragraph 29 of CMM 2017-01--which provides
benefits to American Samoa and provides for up to 100 additional vessel
days if certain conditions are met--precludes NMFS from implementing a
combined limit for 2018. However, NMFS has updated its analysis to
include the combined limit in the FRFA and revised RIR for comparison
purposes.
NMFS agrees that a combined limit would effectively make more
fishing days available to those U.S. purse seine vessels without
fishery endorsements on their U.S. Coast Guard Certificates of
Documentation than would this action. However, NMFS does not agree that
``almost 440 fishing days would go unused,'' as stated by one commenter
in comparing the two approaches. NMFS recognizes that U.S. vessels that
are already ineligible to fish within the U.S. EEZ would have fewer
days to use on the high seas in 2018 than in previous years, but
overall days available to the fleet remain consistent with previous
years, and may actually increase to 1,928 days if certain conditions
under CMM 2017-01 are met. Also, because the vast majority of U.S.
purse seine effort in the region already is concentrated in foreign
zones under the provisions of the SPTT, NMFS does not anticipate
substantial impacts resulting from unused EEZ days.
NMFS does not believe that the proposal to establish separate purse
seine fishing effort limits for the U.S. EEZ and the high seas is a
mere administrative matter with no substantial consequences. To the
contrary, NMFS concluded in the initial regulatory flexibility analysis
(IRFA) and the RIR that either of the two limits, and especially the
high seas limit, could be reached in any of the years 2018-2020, and
that the closure of any fishing grounds for any amount of time can be
expected to bring adverse impacts to affected entities. With respect to
the proposed high seas limit of 1,370 fishing days, NMFS noted that the
proposed level had been met or exceeded in three of the last nine
years, a history that suggests a substantial likelihood of the proposed
high seas limit being reached in any of the years 2018-2020. NMFS
stated that the severity of the impacts of a closure of the high seas
or the U.S. EEZ would be greatly dependent on the length of the closure
and the most favored fishing ground during the closure. As an
indication of the possible impacts, NMFS cited a study of the closure
of the ELAPS in 2015 in which the overall losses to the combined
sectors of the vessels, canneries and support companies from the
closure were estimated to be between $11 and $110 million, depending on
the period considered. NMFS further noted the study suggested that
there were impacts from the 2015 ELAPS closure on the American Samoa
economy, and that a connection existed between U.S. purse seine vessels
and the broader American Samoa economy. As a further indication of the
possible impacts to producers in the fishery of lost fishing days as a
result of one or both limits being reached (i.e., an indication of the
upper bound of those impacts), NMFS provided information in the RIR and
IRFA on revenues in the fleet, including the fact that, with an
indicative fleet size of 35 vessels, the fleet could have gross ex-
vessel revenues of more than $1 million per day, on average. The losses
to producers in the purse seine fishery as a result of one or both of
the limits being reached would likely not reach that maximum rate
because, as explained in the RIR and IRFA, there are next-best
opportunities to fishing on the high seas or in the U.S. EEZ, including
fishing in foreign EEZs under the SPTT, fishing in the EPO, and not
fishing.
NMFS described in the RIR and IRFA some of the factors that might
make each of those alternative opportunities relatively attractive or
unattractive, and acknowledges that under the regulations implementing
IATTC decisions at 50 CFR part 300, subpart C the available capacity
for U.S. purse seine vessels that wish to fish in the EPO and be listed
on the IATTC vessel register is limited. However, vessels with SPTT
licenses may take one trip per year for up to 90 days in duration in
the EPO for a total of 32 trips for the fleet in a calendar year,
without being listed on the IATTC vessel register. With respect to the
possibility of fishing in foreign EEZs in the Convention Area during a
closure of the high seas and/or U.S. EEZ, NMFS agrees that the access
fees under the SPTT, such as the 2018 fee of $12,500 per fishing day to
fish in the waters of many of the Pacific Island parties to the SPTT,
give an indication of the cost of a closure of the high seas, since
fishing on the high seas does not require payment of such access fees.
The high seas appear to be generally less favorable fishing grounds
than foreign EEZs, and thus, U.S. vessels appear to be already paying
the $12,500 access fee even before the U.S. high seas limit is reached
and the area is closed. Thus, $12,500 is probably an overestimate of
the cost per day of the high seas being closed.
NMFS recognizes, and explained in the RIR and IRFA, that the
proposed purse seine fishing effort limits would affect vessels with
fishery endorsements on their U.S. Coast Guard Certificates of
Documentation differently than those vessels without fishery
endorsements, as those without fishery endorsements are not authorized
to fish in the U.S. EEZ, and would not have access to the fishing days
available under the limit for the U.S. EEZ. NMFS agrees that if the
proposed limits for the U.S. EEZ and high seas were combined into a
single limit for the ELAPS, as done in the past, the vessels without
fishery endorsements would have access to the entirety of the combined
limit (i.e., competitively, with all other vessels in the U.S. fleet).
NMFS recognizes, and explained in the RIR and IRFA, that the
proposed purse seine fishing effort limits in the U.S. EEZ and high
seas could cause a race to fish in those respective areas, with
possible consequent effects on the timing of catches and cannery
deliveries and costs in terms of the health and safety of crew members
as well as the economic performance of vessels.
NMFS recognizes, and explained in the RIR and IRFA, that there are
constraints to alternative opportunities in the event the U.S. EEZ and/
or high seas are closed to fishing, and NMFS acknowledges the specific
constraints pointed out by the commenters. NMFS agrees that the
alternative ``next best'' opportunities may not fully compensate for
the losses associated with not being able to fish in the U.S. EEZ and/
or on the high seas in the event they are closed. NMFS' main point in
those portions of the RIR and IRFA is to identify and describe what
appear to be among the most attractive alternative opportunities
(including not fishing at all), and thereby give at least a
[[Page 33858]]
qualitative idea of the opportunity costs associated with the proposed
fishing effort limits.
Regarding the comment that the NMFS analysis fails to take into
account that, of the $10 million grossed by the fleet, $2 million net
comes off the top for access fees under the SPTT, NMFS agrees that
gross ex-vessel revenues overestimate the possible losses to fishing
businesses as a result of this action.
Regarding the comment that the proposed rule's costs to many
vessels in the U.S. purse seine fleet would be to the benefit of a few
U.S. vessels, and more broadly, their foreign competitors, NMFS agrees
that restrictions on U.S. fishing vessels could put some of them at a
competitive disadvantage relative to foreign fleets, but this rule
implements a WCPFC decision that broadly applies to all the major purse
seine fleets in the WCPO. Moreover, as discussed above, NMFS does not
believe it continues to have discretion to combine the high seas and
U.S. EEZ purse seine effort limits for the United States for 2018. NMFS
has not identified any alternative ways to implement the WCPFC
decisions that would be more advantageous to U.S. fishing vessels.
While NMFS acknowledges that some foreign-built U.S. vessels may be
impacted differently than vessels with fishery endorsements that can
fish in the U.S. EEZ, NMFS is satisfied that the final rule treats all
vessels fairly and achieves conservation consistent with U.S.
obligations under the Convention.
Regarding the comment that having separate limits for the U.S. EEZ
and the high seas would put the vessels that support American Samoa at
an economic disadvantage, NMFS notes that Paragraph 29 of CMM 2017-01,
which specifies the separate effort limits, was specifically negotiated
to alleviate the economic hardship of American Samoa.
NMFS acknowledges the comments about the economic impacts of the
proposed fishing effort limits on the cannery in American Samoa and
employment for the people of American Samoa. As explained in the RIR by
reference to the study of the impacts of the ELAPS closure in 2015, a
closure of the high seas and/or U.S. EEZ could impact the American
Samoa economy. However, as stated in the RIR, because the cannery in
Pago Pago also handles deliveries from the fishing fleets of other
nations, as well as from other domestic fleets, the cannery might not
be appreciably affected in terms of income or employment.
NMFS acknowledges the comment that the action would increase the
U.S. fisheries trade deficit by just more than $21 million. NMFS does
not have information to verify the commenter's estimate of the impacts
of the rule on the U.S. fisheries trade deficit. However, NMFS believes
that promulgation of this rule is necessary to carry out the U.S.
international obligations under the Convention.
Comment 5: Four U.S. purse seine industry representatives provided
comments indicating that they supported having the additional two-month
FAD prohibition period on the high seas take place in November and
December, as set forth in the proposed rule, rather than in April and
May. One U.S. purse seine industry representative provided comments
requesting that NMFS look closely at the practical effect of having the
additional two-month FAD prohibition period in November and December
instead of April and May before deciding on the prohibition period in
future years. The commenter stated that the U.S. fleet and the American
Samoa economy may function better with having the prohibition period
take place in April and May. According to the commenter, fishing in the
high seas will be impacted by the timing of the FAD prohibition period.
The proposed rule does not allocate the limited number of high seas
days to eligible boats. Therefore, the commenter believes that there
will be a race to fish on the high seas. Vessels that are unable to
operate during the first part of the year, or for as long as the high
seas are open, will suffer an economic loss. That will include boats
that are under repair. Additionally, the supply of tuna to the American
Samoa canneries could be negatively impacted due to a high seas
prohibition period. That is because the high seas fishing grounds are
relatively close to American Samoa. Vessels that cannot fish in the
high seas may have to shift their areas of operation far from American
Samoa, thereby depriving the territory of tuna supply. If the FAD
prohibition period is in November and December and there are no high
seas days remaining at that time, there would be a reduction in fish
supply to American Samoa. A high seas FAD prohibiton period in April
and May, or an allocation of high seas days, or both, would mitigate
this risk. The commenter encourages NMFS to take these concerns into
consideration.
Response: As described in Attachment 1 of the RIR, NMFS
acknowledges that there are pros and cons to both the late (November
and December) and early (April and May) FAD prohibition period options
for 2018, and that on balance, the late option is expected to have less
direct economic impact on fishing businesses associated with the U.S.
WCPO purse seine fishery. CMM 2017-01 specifies that the additional
two-month FAD prohibition period is for calendar year 2018 only.
However, as explained in the proposed rule, the regulations to
implement the additional two-month high seas FAD closure will be in
effect until they are replaced or amended, and the supporting
analytical documents assess the effects of implementation of the rule
for a three-year period. NMFS will collect data related to the 2018
high seas FAD prohibition period and conduct the appropriate analysis
to support proposed regulations for future years, taking into
consideration the economic impacts to fishing businesses, including
canneries in American Samoa.
Comment 6: Two U.S. purse seine industry representatives provided
comments stating that the 15-day comment period on the proposed rule
was insufficient. One of the commenters stated that issue of the
separate limits for the high seas and U.S. EEZ alone warrants at least
a 30-day comment period. The commenter stated that the 15-day comment
is contrary to applicable law, and the rationale provided in the
proposed rule for the 15-day comment period--that Section 304(b) of the
MSA provides for a 15-day comment period on these types of fishery
rules--is insufficient. Provisions of the WCPFC Implementation Act and
the APA apply to this rulemaking.
Response: NMFS acknowledges that lengthier public review and
comment periods may be provided for some proposed rules. As noted by
the commenter, NMFS is promulgating this final rule under the authority
of the WCPFC Implementation Act and in accordance with the rulememaking
provisions of the APA. Neither the WCPFC Implemation Act nor the APA
specify a minimum comment period for proposed rules. However, we noted
that Section 304(b) of the MSA specifically allows for a 15-day comment
period for fisheries management rules. Furthermore, NMFS explained in
the preamble of the proposed rule that it had good cause to provide a
15-day comment period in order to meet the implementation requirements
of CMM 2017-01. Based on the nature and extent of the comments received
on the proposed rule and the need to make the rule effective in a
timely manner, NMFS believes that the 15-day comment period on the
proposed rule was sufficient. Moreover, the comments do not indicate
that any commenter was prejudiced by the 15-day comment period.
[[Page 33859]]
Comment 7: Two U.S. purse seine industry representatives expressed
concern that the regulations would be in effect for longer than one
year. One commenter stated that once issued, regulations tend not to be
changed, even when outdated or superseded, and asked that the agency
enable necessary regulatory changes to be made expeditiously, such as
by interim rulemaking, particularly when restrictions will be relaxed.
The other commenter noted that although CMM 2017-01 was agreed upon as
a three-year measure, certain key purse seine-related provisions (among
others) were considered especially contentious. According to the
commenter, some believed that CMM 2017-01 weakened several measures
applied in 2017 relating to FAD management and high seas purse seine
effort controls. The commenter noted that these contentious provisions
are applicable for only one year, and could change in 2019. The
commenter stated that several Pacific island countries have indicated
that portions of CMM 2017-01 will need to be re-evaluated. The
commenter stated that NMFS does not have the authority to implement any
three-year provisions for FADs and purse seine effort controls in
specific areas.
Response: NMFS acknowledges that some of the provisions in CMM
2017-01 apply only to calendar year 2018, while others are applicable
until February 10, 2021, and that the Commission is scheduled to
discuss a number of the provisions during its annual meeting in
December 2018. However, as explained in the preamble to the proposed
rule, because the Commission likely will continue to implement similar
management measures regarding FADs and longline bigeye tuna catch
limits beyond 2018, and to avoid a lapse in the management of the
affected fisheries, NMFS is implementing all of the elements of CMM
2017-01, except for the purse seine effort limits, in this rule so that
they will remain effective until they are replaced or amended. Due to
the comments received regarding implementation of the purse seine
effort limits and the fact that Paragraph 29 of CMM 2017-01 is
specified for 2018 only, NMFS is implementing the purse seine effort
limits for 2018 only.
The WCPFC Implementation Act at Section 16 U.S.C. 6904(a)
authorizes the promulgation of regulations as may be necessary to carry
out the United States international obligations under the Convention,
including recommendations and decisions adopted by the Commission.
Instead of applying a piecemeal approach for implementation of the
provisions of CMM 2017-01, NMFS has determined that it is necessary to
implement all the applicable provisions, except for the purse seine
effort limits, so that they will remain effective until they are
replaced or amended. Since the Commission's regular session annually
occurs in December, this approach avoids a lapse in management of
affected fisheries and also provides the regulated community with
advance notice regarding regulations that will be in effect in future
years. In past years, NMFS has implemented Commission decisions for
specific calendar years, and this approach has caused both a lapse in
management of the affected fisheries in subsequent calendar years, as
well as last minute notification to the regulated community of the
entry into force of specific restrictions and requirements. If the
Commission adopts changed or new provisions at its December meeting,
NMFS would implement those provisions in a timely manner.
Comment 8: Two representatives of the U.S. purse seine industry
provided comments regarding the restrictions on the number of active
FADs per vessel. One commenter stated that the 350-active buoy limit
per vessel is consistent with the limit already implemented by the
IATTC. The commenters both stated that it is industry practice for
purse seine vessels to share buoys. For example, if a buoy drifts
beyond the limits of economic operation of one vessel, it might be
transferred to another vessel for fishing or retrieval. One commenter
requested that the rule provide for sharing and transferring active
buoys without reducing the 350-active buoy limit for any one vessel,
and also requested that the definition of a buoy be standardized with
that of the IATTC to avoid confusion. The other commenter asked how
enforcement and reporting of the active FAD limit per vessel would take
place, and requested that the administrative and record-keeping burden
created by this element of the rule be evaluated under the Paperwork
Reduction Act (PRA).
Response: NMFS appreciates the need for consistency with the
regulations recently promulgated to implement IATTC Resolution C-17-02,
``Conservation Measures for Tropical Tunas in the Eastern Pacific Ocean
during 2018-2020 and Amendment to Resolution C-17-01,'' which also
includes limits on the number of active FADs per purse seine vessel
(see 83 FR 15503; published April 11, 2018). However, Resolution C-17-
02 and CMM 2017-01 include some different provisions regarding the
active FAD limits. Thus, the differences between the regulations
implementing the active FAD provisions in IATTC Resolution C-17-02 and
this final rule are due to the differences in the separate IATTC and
WCPFC decisions.
NMFS believes that it would be premature to implement a reporting
requirement to monitor and enforce the active FAD requirements in the
final rule, because the WCPFC Secretariat has not yet developed a
system to receive such reports. Thus, the active FAD limits in this
final rule would be monitored and enforced without a reporting
requirement. NMFS may seek adoption of a Commission-wide active FAD
reporting requirement at the upcoming WCPFC annual meeting in December
or further consistency with the IATTC resolution.
The regulations regarding active FADs in the final rule do not
preclude the sharing or transferring of active FAD buoys. The
regulations limit U.S. vessel owners and operators to no more than 350
drifting active buoys per vessel in the Convention Area at any one
time. Thus, when an active FAD buoy is transferred to and tracked by a
new vessel, it would be part of the new vessels's active FAD limit. The
regulations regarding active FADs do not impose any new recordkeeping
or reporting requirements and thus, are not subject to the PRA.
Comment 9: One representative of the U.S. purse seine industry
provided comments requesting that the regulations address unintentional
setting on FADs. According to the commenter, it is possible that a
purse seine vessel may not see a FAD or something that meets the
definition of a FAD floating within a mile of the vessel. The commenter
requested that the prohibition on setting on FADs during the FAD
prohibition periods be based on an intentional or negligent standard.
The commenter stated that if a vessel has followed reasonable search
and look-out precautions and does not see a FAD by electronic or visual
means and has made a notation in the logbook, that should be sufficient
evidence that there was no intent to set on a FAD.
Another commenter stated that NMFS is arbitrarily picking and
choosing how to implement various FAD definitions. Although NMFS is
proposing consistency with the definition of active FAD for the
regulations implementing the IATTC Resolution C-17-02 and this final
rule, the general FAD definition in the regulations implementing WCPFC
definitions at 50 CFR 300.211 is different than and not consistent with
the general FAD definition in the IATTC regulations at 50 CFR 300.21.
According
[[Page 33860]]
to the commenter, NMFS' approach to defining FAD generally provides
very little direction to the U.S. purse seine fishery and creates
regulatory confusion, which can result in NMFS unfairly prosecuting
alleged FAD violations. The commenter requests that NMFS promptly
address these overarching FAD definitional issues.
Response: The FAD definitions that NMFS has promulgated and
continues to promulgate in regulations implementing IATTC and WCPFC
decisions stem from the language and intent of those separate IATTC and
WCPFC decisions. On August 4, 2009, NMFS published a final rule
implementing the purse seine provisions of CMM 2008-01 (74 FR 38544).
The rule provided, inter alia, that owners, operators, and crew of
fishing vessels of the United States shall not set a purse seine around
a FAD or within one nautical mile of a FAD. The one nautical mile
boundary helps ensure that fishing on schools of fish in association
with FADs does not occur. NMFS has not proposed any change to this
standard, and notes that an intentional or negligent standard could
undermine the effectiveness of the prohibition.
NMFS understands the benefit of consistency in definitions, as
vessels in the U.S. purse seine fleet sometimes fish in both the WCPO
and the EPO. However, NMFS believes that it is premature to modify the
definition of FAD set forth at 50 CFR 300.211 before it has an
opportunity to further consider the consequences of modifying this
definition. NMFS has scheduled a separate public meeting to discuss FAD
definitions and the concerns raised by industry and will take the
outcomes of that public meeting into consideration when developing
future regulations, as appropriate (see 83 FR 26011, published June 5,
2018, for information regarding the public meeting). NMFS notes that
modifying the definition at this stage could be inconsistent with the
United States' obligations as a WCPFC member.
Comment 10: One purse seine industry representative provided
comments stating that he did not understand why the proposed rule
requires the daily reporting on FAD sets, given the number of FAD sets
is not restricted in the Convention Area. The commenter stated he saw
no reason for daily reporting, particularly since each FAD set will
always be reported at the end of each fishing trip.
Response: As stated in the preamble to the proposed rule, NMFS is
slightly revising the existing regulations regarding daily reporting on
FAD sets so that NMFS can direct U.S. purse seine vessel owners and
operators to provide reports on the fishing activity of the vessel
(e.g., setting, transiting, searching), location, and type of set, in
order to obtain better data for tracking the fishing effort limits.
Thus, the changes in the final rule from existing reporting
requirements are intended to better track purse seine fishing effort
and are not connected to a FAD set limit. As the commenter correctly
notes, the final rule does not implement a FAD set limit.
Comment 11: One purse seine industry representative stated that he
had hoped that the agency would use this rulemaking to address the area
of overlap between the IATTC and WCPFC convention areas (overlap area).
The commenter stated his belief that the United States is the only flag
State that enforces both the WCPFC and IATTC management measures in the
overlap area. According to the commenter, besides the unnecessary
burden of carrying two observers when operating in the overlap area,
fishing in the overlap area requires the use of limited high seas
fishing days. The commenter requested that the Unites States apply only
IATTC management measures in the overlap area, retroactive to January
1, 2018.
Response: NMFS recently published an advance notice of proposed
rulemaking to solicit public input on management of the overlap area
and encourages the commenter to provide input on that separate action
(see 83 FR 27305, published June 12, 2018).
Comment 12: One purse seine industry representative commented that
NMFS' implementation of separate purse seine effort limits for the high
seas and the U.S. EEZ goes against the policies of the current
Administration. According to the commenter, the Administration has
sought deregulations in favor of small businesses, and other industries
have benefitted from this. The commenter stated that the President
signed an Executive Order stating that for every new regulation, two
old regulations should be removed. The commenter requested
clarification on why the rule is not expected to be an Executive Order
13771 regulatory action.
Response: NMFS is promulgating this regulation under the authority
of the WCPFC Implementation Act to carry out the obligations of the
United States under the Convention, including the decisions of the
Commission. The final rule implements recent WCPFC decisions. The final
rule is not considered an Executive Order 13771 regulatory action
because it is not considered economically significant under Executive
Order 12886 as it is not expected to have an annual effect on the
economy of $100 million or more.
Comment 13: One purse seine industry representative commented that
there is no conservation value in high seas area closures as they are
not an effective way of managing pelagic species. The commenter stated
that the high seas limits are a strictly economic device being pushed
by various members of the Commission. Another purse seine industry
representative stated that the separate effort limits provide no
conservation benefits.
Response: NMFS agrees that there are no substantial differences
between implementing a combined limit and separate limits in terms of
effects on living marine resources, as described in the PEA. The
potential for beneficial effects on living marine resources from the
effort limits would stem from whether implementation of effort limits
would lead to an overall reduction in fishing effort in the WCPO (see
the discussion of cumulative impacts in the PEA).
Changes From Proposed Rule
One change from the proposed regulations have been made in these
final regulations. The purse seine fishing effort limits specified at
50 CFR 300.223(a) are being implemented for calendar year 2018 only.
Classification
The Administrator, Pacific Islands Region, NMFS, has determined
that this final rule is consistent with the WCPFC Implementation Act
and other applicable laws.
Administrative Procedure Act
There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day
delay in effective date for the provisions regarding the FAD
prohibition period for purse seine vessels set forth at 50 CFR
300.223(b)(2)(i). The FAD prohibition period is intended to reduce or
otherwise control fishing pressure on bigeye tuna in the WCPO in order
to maintain this stock to levels capable of producing maximum
sustainable yield on a continuing basis. The Commission adopted a start
date of July 1, 2018, for the first FAD prohibition period. Delaying
the effective date of this provision increases the risk that the
Commission's FAD prohibition period will become effective prior to the
effective date of the final rule, resulting in the United States' non-
compliance with its international obligations, which is contrary to the
requirements of the WCPFC Implementation Act, and in turn contrary to
the public interest.
[[Page 33861]]
Coastal Zone Management Act (CZMA)
NMFS determined that this action is consistent to the maximum
extent practicable with the enforceable policies of the approved
coastal management programs of American Samoa, the Commonwealth of the
Northern Mariana Islands (CNMI), Guam, and the State of Hawaii.
Determinations to Hawaii and each of the Territories were submitted on
March 12, 2018, for review by the responsible state and territorial
agencies under section 307 of the CZMA. Responses to the determination
were received from Hawaii, CNMI, and Guam. CNMI and Guam concurred that
the proposed project would be conducted in a manner that is consistent
with the coastal management programs in CNMI and Guam. The State of
Hawaii, noting that the U.S. WCPO purse seine fishery and the longline
fisheries operate outside of the jurisdiction of the Hawaii CZM Program
enforceable policies, confirmed that they would not be submitting a
response to the determination. No response was received from American
Samoa. NMFS presumes American Samoa's concurrence, pursuant to 15 CFR
930.41(a).
Executive Order 12866
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
Regulatory Flexibility Act (RFA)
A final regulatory flexibility analysis (FRFA) was prepared as
required by section 604 of the RFA. The FRFA incorporates the initial
regulatory flexibility analysis (IRFA) prepared for the proposed rule.
The analysis in the IRFA is not repeated here in its entirety. A
description of the action, why it is being considered, and the legal
basis for this action are contained above in the SUMMARY section and
this SUPPLEMENTARY INFORMATION section of the preamble of this final
rule. The FRFA analysis follows:
Significant Issues Raised by Public Comments in Response to the IRFA
NMFS did not receive any comments that responded specifically to
the IRFA, but several comments on the proposed rule from U.S. purse
seine industry representatives related to NMFS' assessment of the
economic effects of the proposed rule, and thus could be relevant to
the IRFA. See the discussion above summarizing Comments 3, 4, 5, and 12
and providing NMFS' responses to those comments.
Description of Small Entities to Which the Rule Will Apply
For Regulatory Flexibility Act purposes only, NMFS has established
a small business size standard for businesses, including their
affiliates, whose primary industry is commercial fishing (see 50 CFR
200.2). A business primarily engaged in commercial fishing (NAICS code
114111) is classified as a small business if it is independently owned
and operated, is not dominant in its field of operation (including its
affiliates), and has combined annual receipts not in excess of $11
million for all its affiliated operations worldwide.
The final rule applies to owners and operators of U.S. commercial
fishing vessels used to fish for HMS in the Convention Area, including
longline vessels (except those operating as part of the longline
fisheries of American Samoa, CNMI, or Guam), purse seine vessels, and
albacore troll vessels. Based on the number of U.S. vessels with a
WCPFC Area Endorsement, which is required to fish on the high seas in
the Convention Area, the estimated numbers of affected longline, purse
seine, and albacore troll fishing vessels are 158, 37, and 22,
respectively.
Based on limited financial information about the affected fishing
fleets, and using individual vessels as proxies for individual
businesses, NMFS believes that all of the affected longline and
albacore troll vessels, and slightly more than half of the vessels in
the purse seine fleet, are small entities as defined by the RFA; that
is, they are independently owned and operated and not dominant in their
fields of operation, and have annual receipts of no more than $11
million. Within the purse seine fleet, analysis of average revenue, by
vessel, for the three years of 2014-2016 reveals that average annual
revenue among vessels in the fleet was about $10.2 million, and the
annual averages were less than the $11 million threshold for 22 vessels
in the fleet.
Recordkeeping, Reporting, and Other Compliance Requirements
The reporting, recordkeeping and other compliance requirements of
this final rule are described earlier in the preamble. The classes of
small entities subject to the requirements and the types of
professional skills necessary to fulfill the requirements are described
below for each of the first four elements of the final rule. The fifth
element of the final rule, which provides administrative changes to
existing regulations, is not considered further in this FRFA, as it is
of a housekeeping nature and will not have any substantive effects on
any entities.
1. Longline Bigeye Tuna Catch Limits
This element of the final rule will not establish any new reporting
or recordkeeping requirements. The new compliance requirement is 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 bigeye tuna catch limit of 3,554 mt (reduced by
the amount of any overages in the preceding year) is reached in any of
the years 2018-2020, for the remainder of the calendar year, subject to
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 this element of the final rule could cause foregone
fishing opportunities and result in associated economic losses in the
event that the bigeye tuna catch limit is reached in any of the years
2018-2020 and the restrictions on retaining, landing, and transshipping
bigeye tuna are imposed for portions of those years. These costs cannot
be projected quantitatively with any certainty. The annual limit of
3,554 mt can be compared to catches in 2005-2008, before limits were in
place. The average annual catch in that period was 4,709 mt. Based on
that history, as well as fishing patterns in 2009-2016, when limits
were in place, there appears to be a relatively high likelihood of the
limits being reached in 2018-2020. In 2015, for example, which saw
exceptionally high catches of bigeye tuna, the limit of 3,502 mt was
estimated to have been reached by, and the fishery was closed on,
August 5 (see temporary rule published July 28, 2015; 80 FR 44883). The
fishery was subsequently re-opened for vessels included in agreements
with the governments of the CNMI and Guam under regulations
implementing Amendment 7 to the Fishery Ecosystem Plan for Pelagic
Fisheries of the Western Pacific Region (Pelagics FEP) (50 CFR
665.819). In 2016, the limit of 3,554 mt was estimated to have been
reached by September 9, 2016, and in 2017, the
[[Page 33862]]
limit of 3,138 mt was estimated to have been reached by September 1,
2017. Thus, if bigeye tuna catch patterns in 2018-2020 are like those
in 2005-2008, the limit will be reached in the fourth quarter of the
year, and if they are like those in 2015, 2016, or 2017, the limit will
be reached in the third quarter of the year.
If the bigeye tuna limit is reached before the end of any of the
years 2018-2020 and the Convention Area longline bigeye tuna 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 final rule is not the 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 final 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 final 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 final rule, bigeye tuna
catches in the Convention Area in each of the years 2018-2020 would be
5,000 mt, slightly more than the average in 2005-2008. Under this
scenario, imposition of the annual limits of 3,554 mt would result in
29 percent less bigeye tuna being caught each year 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
final rule, revenues in 2018-2020 to entities that participate
exclusively in the deep-set fishery would be approximately 29 percent
less than under no action. Average annual ex-vessel revenues (from all
species) per mt of bigeye tuna caught during 2005-2008 were about
$14,190/mt (in 2014 dollars, derived from the latest available annual
report on the pelagic fisheries of the western Pacific Region (Western
Pacific Regional Fishery Management Council, 2014, Pelagic Fisheries of
the Western Pacific Region: 2012 Annual Report. Honolulu, Western
Pacific Fishery Management Council)). If there are 128 active vessels
in the fleet, as there were during 2005-2008, on average, then under
the no-action scenario of fleet-wide anual catches of 5,000 mt, each
vessel would catch 39 mt/yr, on average. Reductions of 29 percent in
2018-2020 as a result of the limits would be about 11 mt per year.
Applying the average ex-vessel revenues (from all species) of $14,190
per mt of bigeye tuna caught, the reductions in ex-vessel revenue per
vessel would be $160,000 per year, on average.
In the shallow-set fishery, affected entities will bear limited
costs 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 will be about 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 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 to shallow-setting vessels 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 bigeye tuna catch limit is reached even as early as July 31 in any
of the years 2018-2020, 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. Imposition of the
landings restriction at that point in any of the years 2018-2020 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. It should be noted that for 2018, shallow-set
longline fishing is no longer an available opportunity, as the fishery
was closed, effective May 8, 2018, for the remainder of 2018 (see
temporary rule published May 11, 2018; 83 FR 21939). The remainder of
this analysis focuses on the potential costs of compliance in the deep-
set fishery.
It should be noted that the impacts on affected entities' profits
will be less than impacts on revenues when considering the costs of
operating vessels, 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
variable costs and revenues 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 will
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 will not necessarily be the most profitable alternative
opportunity when the catch limit is 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. Four additional
opportunities are: (3) Shallow-set longline fishing for swordfish (for
deep-setting vessels that would not otherwise do so; but as noted
above, this opportunity is no longer available in 2018), (4) deep-set
longline fishing in the Convention Area for species other than bigeye
tuna, (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, and (6) vessel repair and maintenance. 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, 2015,
Monitoring socioeconomic impacts of Hawai`i's 2010 bigeye tuna closure:
Complexities of local management in a global fishery, Ocean & Coastal
Management 106:87-96) did not identify the occurrence of any
[[Page 33863]]
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. Based on
those findings, NMFS expects that alternative opportunities (3), (4),
(5) and (6) are probably unattractive relative to the first two
alternatives, and are not discussed here in any further detail. NMFS
recognizes that vessel maintenance and repairs and granting lengthy
vacations to employees are two alternative activities that might be
taken advantage of if the fishery is closed, but no further analysis of
their mitigating effects is provided here.
Before examining in detail the two potential alternative fishing
opportunities that appear to be the most attractive to affected
entities, it is important to note that under the final rule, once the
limit is reached and the WCPO bigeye tuna fishery is closed, fishing
with longline gear both inside and outside the Convention Area during
the same trip will be prohibited (except in the case 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 for both. This
reduced operational flexibility will bring costs, because it will
constrain the potential profits from alternative opportunities. Those
costs cannot be quantified.
A vessel could take advantage of the first alternative opportunity
(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), by three possible methods: (a) Landing the
bigeye tuna in one of the three Participating Territories, (b) holding
an American Samoa Longline Limited Access Permit, or (c) being
considered part of a Participating Territory's longline fishery, by
agreement with one or more of the three Participating Territories under
the regulations implementing Amendment 7 to the Pelagics FEP (50 CFR
665.819). 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 were landed by a U.S. vessel operating
in compliance with a permit issued under the regulations implementing
the Pelagics FEP or the Fishery Management Plan for U.S. West Coast
Fisheries for Highly Migratory Species.
With respect to the first method of engaging in alternative
opportunity 1 (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 markets in
Hawaii, the U.S. west coast, or Japan, would bring substantial
additional costs and risks. These cost constraints suggest that this
alternative opportunity has limited potential to mitigate the economic
impacts of the final rule on affected small entities.
The second method of engaging in the first alternative opportunity
(1.b.) (having an American Samoa Longline Limited Access Permit), will
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 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 23 in 2016. The
previously cited NMFS study of the 2010 fishery closure (Richmond et
al. 2015) 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.
The third method of engaging in the first alternative opportunity
(1.c.) (entering into an Amendment 7 agreement), was also available in
2011-2017 (in 2011-2013, under section 113(a) of Pub. L. 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, ``section 113(a)''). As a result of agreements that were in
place in 2011-2014, the WCPO bigeye tuna fishery was not closed in any
of those years. In 2015, 2016, and 2017 the fishery was closed but then
reopened when agreements went into effect. Participation in an
Amendment 7 agreement would likely not come without costs to fishing
businesses. As an indication of the possible cost, the terms of the
agreement between American Samoa and the members of the Hawaii Longline
Association (HLA) in effect 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. 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.
The second alternative opportunity (2) (deep-set fishing for bigeye
tuna in the EPO), will be an option for affected entities only if it is
allowed under regulations implementing the decisions of the IATTC. NMFS
has issued a final rule to implement the IATTC's most recent resolution
on the management of tropical tuna stocks (83 FR 15503; April 11,
2018). The final rule establishes an annual limit of 750 mt on the
catch of bigeye tuna in the EPO by vessels at least 24m in length in
each of the years 2018-2020. Annual longline bigeye tuna catch limits
have been in place for the EPO in most years since 2004. Since 2009,
when the limit was 500 mt, it was reached in 2013 (November 11), 2014
(October 31), and 2015 (August 12). In 2016 NMFS forecasted that the
limit would be reached July 25 and subsequently closed the fishery, but
later determined that the catch limit had not been reached and re-
opened the fishery on October 4, 2016 (81 FR 69717). The limit was not
reached in 2017.
The highly seasonal nature of bigeye tuna catches in the EPO and
the relatively high inter-annual variation in catches prevents NMFS
from making a useful prediction of whether and when the EPO limits in
2018-2020 are likely to be reached. If it is reached, this alternative
opportunity would not be available for large longline vessels, which
constitute about a quarter of the fleet.
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 ranged
from
[[Page 33864]]
2 percent to 11 percent, and may have been constrained by the IATTC-
adoped bigeye tuna catch limits established by NMFS (no limit was in
place for 2008). 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 data demonstrate 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. These two patterns
suggest that there could be substantial costs for at least some
affected entities that shift to deep-set fishing in the EPO in the
event of a closure in the WCPO. On the other hand, fishing patterns
since 2008 suggest that a substantial shift in deep-set fishing effort
to the EPO could occur. In 2009, 2010, 2011, 2012, 2013, 2014, 2015,
and 2016 the proportions of the fishery's annual bigeye tuna catches
that were captured in the EPO were about 16, 27, 23, 19, 36, 35, 47,
and 36 percent, respectively, and most bigeye tuna catches in the EPO
were made in the latter half of the calendar years.
The NMFS study of the 2010 closure (Richmond et al. 2015) 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 catch limits could affect fish prices, particularly
during a fishery closure. Both increases and decreases appear possible.
After a 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. 2015) found that ex-vessel prices
during 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 2018-
2020--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. 2015) 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 2020.
The potential economic effects identified above will vary among
individual business entities, but it is not possible to predict the
range of variation. Furthermore, the impacts on a particular entity
will depend on both that entity's response to the final rule and 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 the first alternative
opportunity (1), fishing as part of one of the Participating
Territory's fisheries, the lower the likelihood that the limit will 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 the government of American Samoa, and
as a consequence, the U.S. longline 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) arrangements, 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
section 113(a) or Amendment 7 to the Pelagics FEP 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, based on potential reductions in ex-vessel revenues,
NMFS has estimated that the upper bound of potential economic impacts
of the final rule on affected longline fishing entities could be
roughly $160,000 per vessel per year, on average. 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
(e.g., if one or more Amendment 7 agreements are in place in 2018-2020
and the terms of the agreements are such that the U.S. longline fleet
is effectively unconstrained by the catch limits).
2. FAD Restrictions
This element of the final rule does not establish any new reporting
or recordkeeping requirements. The new requirement is for affected
vessel owners and operators to comply with the FAD restrictions
described earlier in the SUPPLEMENTARY INFORMATION section of the
preamble, including FAD prohibition periods throughout the Convention
Area from July 1 through September 30 in each of the years 2018-2020
and FAD prohibition periods just on the high seas in the Convention
Area from November 1 through December 31 in each of the same years.
There also is
[[Page 33865]]
a limit of 350 active FADs that may be deployed per vessel at any given
time. Anecdotal information from the U.S. purse seine fishing industry
indicates that U.S. purse seine vessels have not ever deployed more
than 350 active FADs at any given time, so NMFS does not expect that
the limit will be constraining or otherwise affect the behavior of
purse seine operations, and it is not considered further in this FRFA.
Fulfillment of the element's requirements is not expected to
require any professional skills that the vessel owners and operators do
not already possess. The costs of complying with the requirements are
described below to the extent possible.
The proposed FAD restrictions would substantially constrain the
manner in which purse seine fishing could be conducted in the specified
areas and periods in the Convention Area; in those areas and during
those periods, vessels would be able to set only on free, or
``unassociated,'' schools.
With respect to the three-month FAD closure throughout the
Convention Area: Assuming that sets would be evenly distributed through
the year, the number of annual FAD sets would be expected to be about
three-fourths the number that would occur without a seasonal FAD
closure. For example, during 2014-2016, the proportion of all sets that
were made on FADs when FAD setting was allowed was 50 percent. As an
indicative example, if the fleet makes 8,000 sets in a given year
(somewhat more than the 2014-2016 average of 7,420 sets per year) and
50 percent of those are FAD sets, it would make 4,000 FAD sets. If
there is a three-month closure and 50 percent of the sets outside the
closure are FAD sets, and sets are evenly distributed throughout each
year, the annual number of FAD sets would be 3,000. This can be
compared to the estimated 2,494 annual FAD sets that were made in 2014-
2016, on average, when there were three-month FAD closures.
With respect to the two-month high seas FAD closure: The effects of
this element are difficult to predict. If the high seas are closed to
all purse seine fishing during November-December as a result of the
fishing effort limit being reached, the high seas FAD closure during
those two months would have no additional effect whatsoever. If the
high seas are not closed to fishing, the prohibition on FAD setting
would make the high seas less favorable for fishing than they otherwise
would be, because only unassociated sets would be allowed there. It is
not possible to characterize how influential that factor would be,
however. Thus, it is not possible to predict the effects in terms of
the spatial distribution of fishing effort or the proportion of fishing
effort that is made on FADs.
With respect to both the three-month FAD closure and two-month high
seas FAD closure: As for the limits on fishing effort, vessel operators
might choose to schedule their routine maintenance periods so as to
take best advantage of the available opportunities for making FAD sets,
such as during the FAD closures. However, the limited number of vessel
maintenance facilities in the region might constrain vessel operators'
ability to do this.
It is emphasized that the indicative example given above is based
on the assumption that the FAD set ratio would be 50 percent during
periods when FAD sets are allowed, as well as that sets are distributed
evenly throughout the year. These assumptions are weak from several
perspectives, so the results should be interpreted with caution. First,
as described above, FAD set ratios have varied widely from year to
year, indicating that the conditions that dictate ``optimal'' FAD set
ratios for the fleet vary widely from year to year, and cannot be
predicted with any certainty. Second, the optimal FAD set ratio during
open periods might depend on how long and when those periods occur. For
example, FAD fishing might be particularly attractive soon after a
closed period during which FADs aggregated fish but were not fished on.
These factors are not explicitly accounted for in this analysis, but
the 50 percent FAD ratio used in this analysis was taken from 2014-
2016, when there was a three-month FAD closure, so it is probably a
better indicator for the action alternatives than FAD set ratios for
years prior to 2009, when no seasonal FAD closures were in place. With
respect to the distribution of sets through the year, the existence of
collective limits on fishing effort might create an incentive for
individual vessels to fish harder earlier in the year than they
otherwise would, resulting in a ``race to fish.'' Limitations on
fishing effort throughout the Convention Area could cause vessels to
fish (irrespective of set type or the timing of FAD closures) harder
earlier in a given year than they would without the limits. However,
any such effect is not expected to be great, because most vessels in
the fleet tend to fish virtually full time, leaving little flexibility
to increase fishing effort at any particular time of the year.
Vessels in the U.S. WCPO purse seine fleet make both unassociated
sets and FAD sets when not constrained by regulation, so one type of
set is not always more valuable or efficient than the other type. Which
set type is optimal at any given time is a function of immediate
conditions in and on the water, but probably also of such factors as
fuel prices (unassociated sets involve more searching time and thus
tend to bring higher fuel costs than FAD sets) and market conditions
(e.g., FAD fishing, which tends to result in greater catches of lower-
value skipjack tuna and smaller yellowfin tuna and bigeye tuna than
unassociated sets, might be more attractive and profitable when
canneries are not rejecting small fish). Clearly, the ability to do
either type of set is valuable, and constraints on the use of either
type can be expected to bring adverse economic impacts to fishing
operations. Thus, the greater the constraints on the ability to make
FAD sets, the greater the expected economic impacts of the action.
Because the factors affecting the relative value of FAD sets and
unassociated sets are many, and the relationships among them are not
well known, it is not possible to quantify the expected economic
impacts of the FAD restrictions. However, it appears reasonable to
conclude the following: First, the FAD restrictions will adversely
impact producer surplus relative to the no-action alternative. The fact
that the fleet has made such a substantial portion of its sets on FADs
in the past indicates that prohibiting the use of FADs in the specified
areas and periods could bring substantial costs and/or revenue losses.
Second, vessel operators might be able to mitigate the impacts of the
FAD restrictions by scheduling their routine vessel and equipment
maintenance during the FAD closures, but this opportunity might be
constrained by the limited vessel maintenance facilities in the region.
3. Purse Seine Fishing Effort Limits
This element of the final rule does not establish any new reporting
or recordkeeping requirements, but the existing ``Daily FAD reports''
required at 50 CFR 300.218(g) are slightly revised, and renamed ``Daily
purse seine fishing effort reports'' and slightly modify the type of
information collected.
There are annual limits of 1,370 and 458 fishing days on the high
seas and in the U.S. EEZ, respectively, in the Convention Area. In
addition, there is a mechanism to increase the U.S. EEZ limit in a
given year to 558 fishing days if 458 fishing days are used by October
1 of that year.
Fulfillment of this element's requirements is not expected to
require any professional skills that the vessel owners and operators do
not already
[[Page 33866]]
possess. The costs of complying with the requirements are described
below to the extent possible.
Regarding the modification to the daily reporting requirement, the
specific information required in the reports are slightly modified from
those of the existing ``Daily FAD reports,'' but the costs of
compliance are not expected to change.
Regarding the fishing effort limits, if and when the fishery on the
high seas or in the U.S. EEZ is closed as a result of a limit being
reached in any of the years 2018-2020, owners and operators of U.S.
purse seine vessels will have to cease fishing in that area for the
remainder of the calendar year. Closure of the fishery in either of
those areas could thereby cause foregone fishing opportunities and
associated economic losses if the area contains preferred fishing
grounds during such a closure. Historical fishing rates in the two
areas give a rough indication of the likelihood of the limits being
reached.
Regarding the U.S. EEZ, from 2009 through 2017, no more than 47
percent of the proposed limit of 458 fishing days was ever used (and no
more than the 39 percent of the possible limit of 558 fishing days).
This history suggests a relatively low likelihood of the EEZ limit
being reached in 2018-2020. However, the allowance for an extra 100
fishing days if the 458 fishing days are used by October 1 could
provide an incentive for the fleet to use more fishing days in the EEZ
than it otherwise would. Furthermore, this would be the first time that
separate limits would be established for the EEZ and the high seas, so
the incentives for individual vessels in the fleet will change relative
to previous years. A minority of the fleet is authorized to fish in the
U.S. EEZ (9 of the 37 vessels in the fleet have fishery endorsements on
their U.S. Coast Guard Certificates of Documentation, which are
required to fish in the U.S. EEZ; the majority of U.S. purse seine
fishing activity in the Convention Area takes place in the waters of
Pacific Island Parties to the SPTT, pursuant to the terms of the SPTT).
With a separate limit for the U.S. EEZ, this minority might take more
advantage of it than it has in the past.
Regarding the high seas, from 2009 through 2017, between 29 and 134
percent of the annual limit of 1,370 fishing days was used, and at
least 100 percent was used in three of the nine years. In two years,
2015 and 2016, the ELAPS was closed for part of the year (starting June
15 in 2015, and September 2 in 2016), so more fishing effort might have
occurred in those two years were there no limits. This history suggests
a substantial likelihood of the high seas limit of 1,370 fishing days
being reached in any of the years 2018-2020.
Two factors could have a substantial influence on the amount of
fishing effort in the U.S. EEZ and on the high seas in 2018-2020:
First, the number of fishing days available in foreign waters (the
fleet's main fishing grounds) pursuant to the SPTT will influence the
incentive to fish outside those waters, including the U.S. EEZ and high
seas. Second, El Ni[ntilde]o--Southern Oscillation (ENSO) conditions
will influence where the best fishing grounds are.
Regarding fishing opportunities in foreign waters, in December
2016, the United States and the Pacific Island Parties to the SPTT
(PIPs) agreed upon a revised SPTT, and under this new agreement U.S.
purse seine fishing businesses can purchase fishing days in the EEZs of
the PIPs. There are limits on the number of such ``upfront'' fishing
days that may be purchased. These limits can influence the amount of
fishing in other areas, such as the U.S. EEZ and the high seas, as well
as the EPO. For example, if the number of available upfront fishing
days is relatively small, fishing effort in the U.S. EEZ and/or high
seas might be relatively great. In fact, the number of upfront days
available for the Kiribati EEZ, which has traditionally constituted
important fishing grounds for the U.S. fleet, is notably small--only
300 fishing days per year. However, the new SPTT regime provides for
U.S. purse seine fishing businesses to purchase ``additional'' fishing
days through direct bilateral agreements with the PIPs. NMFS cannot
project how many additional days will be purchased in any given years,
so cannot gauge how the limits on upfront days might influence fishing
effort in the U.S. EEZ or on the high seas. Limits on upfront days are
therefore not considered here any further.
Additionally, effective January 1, 2015, Kiribati prohibited
commercial fishing in the Phoenix Islands Protected Area, which is a
large portion of the Kiribati EEZ around the Phoenix Islands. These
limitations in the Kiribati EEZ in 2015 probably made fishing in the
ELAPS more attractive than it otherwise would be.
Regarding El Ni[ntilde]o Southern Oscillation (ENSO) conditions,
the eastern areas of the WCPO tend to be comparatively more attractive
to the U.S. purse seine fleet during El Ni[ntilde]o events, when warm
surface water spreads from the western Pacific to the eastern Pacific
and large, valuable yellowfin tuna become more vulnerable to purse
seine fishing and trade winds lessen in intensity. Consequently, the
U.S. EEZ and high seas, much of which is situated in the eastern range
of the fleet's fishing grounds, is likely to be more important fishing
grounds to the fleet during El Ni[ntilde]o events (as compared to
neutral or La Ni[ntilde]a events). This is supported by there being a
statistically significant correlation between annual average per-vessel
fishing effort in the ELAPS and the Oceanic Ni[ntilde]o Index, a common
measure of ENSO conditions, over the life of the SPTT through 2010.
El Ni[ntilde]o conditions were present in 2015 and in the first
half of 2016, and might have contributed to the relatively high rates
of fishing in the ELAPS in those years. ENSO neutral conditions began
in the latter half of 2016, and continued until the fourth quarter of
2017, when there was a shift to La Ni[ntilde]a conditions, which
persisted through early 2018 (and which is consistent with the moderate
rates of fishing in the ELAPS in 2017). As of May 10, 2018, the
National Weather Service states that in April 2018 ENSO-neutral
conditions returned, and are predicted to continue at least through
September-November 2018. The Northern Hemisphere 2018-2019 winter has
about 50% probability of El Ni[ntilde]o conditions (National Oceanic
and Atmospheric Administration, National Weather Service, Climate
Prediction Center. Web page accessed June 12, 2018:
www.cpc.ncep.noaa.gov/products/analysis_monitoring/enso_advisory/index.shtml). Thus ENSO conditions are likely to have a largely neutral
influence through the Northern Hemisphere fall of 2018, followed by a
growing probability of conditions that favor fishing in the ELAPS
during the Northern Hemisphere 2018-2019 winter. The influence of ENSO
conditions on fishing effort after that cannot be predicted with any
certainty.
Another potentially important factor is that the EEZ and high seas
limits are competitive limits, so they could cause a ``race to fish''
in the two areas. That is, vessel operators might seek to take
advantage of the limited number of fishing days available in the areas
before the limits are reached, and fish harder in one or both areas
than they would if there were no limits. On the one hand, any such
race-to-fish effect might be reflected in the history of fishing in the
ELAPS, described above.Anecdotal information from the fishing industry
suggests that the limits might have been internally allocated by the
fleet in the past, which might have tempered any race to fish. It is
not known whether the industry intends to internally allocate the
limits established in this final rule.
[[Page 33867]]
In summary, although difficult to predict, either the U.S. EEZ or
high seas limits could be reached in any of the years 2018-2020,
especially the high seas limits. If either limit is reached in a given
year, the fleet will be prohibited from fishing in that area for the
remainder of the calendar year.
The closure of any fishing grounds for any amount of time can be
expected to bring adverse impacts to affected entities (e.g., because
the open area might, during the closed period, be less productive than
the closed area, and vessels might use more fuel and spend more time
having to travel to open areas). The severity of the impacts of a
closure would depend greatly on the length of the closure and where the
most favored fishing grounds are during the closure. A study by NMFS
(Chan, V. and D. Squires. 2016. Analyzing the economic impacts of the
2015 ELAPS closure. NMFS Internal Report) estimated that the overall
losses to the combined sectors of the vessels, canneries and vessel
support companies from the 2015 ELAPS closure ranged from $11 million
and $110 million depending on the counterfactual period considered.
These results suggest that there were impacts from the ELAPS closure on
the American Samoa economy and a connection between U.S. purse seine
vessels and the broader American Samoa economy.
If either the U.S. EEZ or high seas is closed, possible next-best
opportunities for U.S. purse seine vessels fishing in the WCPO include
fishing in the other of the two areas, fishing in foreign EEZs inside
the Convention Area, fishing outside the Convention Area in EPO, and
not fishing.
With respect to fishing in the U.S. EEZ or on the high seas: If the
U.S. EEZ were closed, the high seas would be available to the fleet
until its limit is reached. If the high seas were closed, the U.S. EEZ
would be available until its limit is reached, but only for the vessels
with fishery endorsements on their Certificates of Documentation
(currently 9, including 8 vessels with SPTT licenses and one additional
vessel without).
With respect to fishing in the Convention Area in foreign EEZs: As
described above, under the SPTT the fleet might have substantial
fishing days available in the Pacific Island country EEZs that dominate
the WCPO, but it is not possible to predict how many fishing days will
be available to the fleet as a whole or to individual fishing
businesses.
With respect to fishing in the EPO: The fleet has generally
increased its fishing operations in the EPO since 2014, and as of 2017,
there were 17 purse seine vessels in the WCPO fleet that are also
listed on the IATTC Vessel Register. In order to fish in the EPO, a
vessel must be on the IATTC's Regional Vessel Register and categorized
as active (50 CFR 300.22(b)), which involves fees of about $14.95 per
cubic meter of well space per year (e.g., a vessel with 1,200 m\3\ of
well space would be subject to annual fees of $17,940). (As an
exception to this rule, an SPTT-licensed vessel is allowed to make one
fishing trip in the EPO each year without being categorized as active
on the IATTC Regional Vessel Register. The trip must not exceed 90 days
in length, and there is an annual limit of 32 such trips for the entire
SPTT-licensed fleet (50 CFR 300.22(b)(1)).) The number of U.S. purse
seine vessels in the WCPO fleet that have opted to be categorized as
such has increased in the last few years from zero to 17, probably
largely a result of constraints on fishing days in the WCPO and/or
uncertainty in future access arrangements under the SPTT. This suggests
an increasing attractiveness of fishing in the EPO, in spite of the
costs associated with doing so. However, in 2018 vessels probably will
not have the opportunity to fish in the EPO year-round. To implement a
recent decision of the IATTC, NMFS has published a final rule that
requires purse seine vessels to choose between two EPO fishing
prohibition periods each year in 2018-2020: July 29-October 8 or
November 9-January 19 (72 days in either case). Thus, the opportunity
to fish in the EPO might be constrained, depending on when the U.S. EEZ
and/or high seas in the WCPFC Area is closed, and which EPO closure
period a given vessel operator chooses.
With respect to not fishing at all during a closure of the U.S. EEZ
or high seas: This would mean a loss of any revenues from fishing.
However, many of the vessels' variable operating costs would be avoided
in that case, and it is possible that for some vessels a portion of the
time might be used for productive activities like vessel and equipment
maintenance.
The opportunity costs of engaging in next-best opportunities in the
event of a closure are not known, so the potential impacts cannot be
quantified. However, to give an indication of the magnitude of possible
economic impacts to producers in the fishery (i.e., an indication of
the upper bound of those impacts), information on revenues per day is
provided here.
The last five years for which catch estimates for the U.S. WCPO
purse seine fleet are available are 2012-2016. Those estimates,
adjusted to an indicative fleet size of 35 vessels, equate to annual
average catches of skipjack tuna, yellowfin tuna, and bigeye tuna of
236,077 mt, 24,802 mt, and 4,213 mt, respectively, or 265,091 mt in
total. Applying an indicative current Bangkok cannery price for
skipjack tuna of $1,500 per mt to all three species, the value of
annual fleet-wide catches at 2012-2016 average levels would be about
$398 million, equivalent to a little more than $1 million per calendar
day, on average. It should be noted that cannery prices are fairly
volatile; for example, cannery prices are much lower now than prices
during most of 2017.
In addition to the effects described above, the purse seine effort
limits could affect the temporal distribution of fishing effort in the
U.S. purse seine fishery. Since the limits will apply fleet-wide--that
is, they will not be allocated to individual vessels--vessel operators
might have an incentive to fish harder in the affected areas earlier in
each calendar year than they otherwise would. Such a race-to-fish
effect might also be expected in the time period between when a closure
of the fishery is announced and when it is actually closed, which would
be at least seven calendar days. To the extent such temporal shifts
occur, they could affect the seasonal timing of fish catches and
deliveries to canneries. The timing of cannery deliveries by the U.S.
fleet alone (as it might be affected by a race to fish in the EEZ or
high seas) is unlikely to have an appreciable impact on prices, because
many canneries in the Asia-Pacific region and elsewhere buy from the
fleets of multiple nations, as well as other domestic fleets. A race to
fish could bring costs to affected entities if it causes vessel
operators to forego vessel maintenance in favor of fishing or to fish
in weather or ocean conditions that they otherwise would not. This
could bring costs in terms of the health and safety of the crew as well
as the economic performance of the vessel.
4. Eastern High Seas Special Management Area
This element of the final rule removes a reporting/recordkeeping
requirement, the requirement to notify NMFS when entering and exiting
the EHSSMA. It also establishes a prohibition on transshipment in the
EHSSMA.
Fulfillment of this element's requirements is not expected to
require any professional skills that the vessel owners and operators do
not already possess. The costs of complying with the requirements are
described below to the extent possible.
[[Page 33868]]
Regarding the entry/exit notices, when NMFS established the
requirement in 2012 (final rule published December 3, 2012; 77 FR
71501), it estimated that each report would require about 15 minutes of
labor (at a labor cost of about $60 per hour) and no more than $1 in
communication costs, for an estimated total cost of compliance of about
$16 per notice. At that time, NMFS estimated that each longline vessel
would enter and exit the EHSSMA between zero and approximately four
times per year (requiring 0-8 notices per year at an annual cost of $0-
128), each purse seine vessel would do so between zero and
approximately two times per year (requiring 0-4 notices per year at an
annual cost of $0-64), and each albacore troll vessel would do so
between zero and two times per year (requiring 0-4 notices per year at
an annual cost of $0-64). According to the notices received by NMFS,
zero longline vessels and zero albacore troll vessels have entered the
EHSSMA from 2013 through 2017, and there have been nine entries/exits
by purse seine fishing vessels. In any case, under the final rule,
commercial fishing vessels will be relieved of about $16 in compliance
costs each time they enter or exit the EHSSMA.
Disproportionate Impacts
As described above, the type of the impacts will vary greatly among
fishing gear types (i.e., longline versus albacore troll versus purse
seine), and the magnitude of the impacts also could vary greatly by
fishing gear type (but they are difficult to quantify and compare).
Nevertheless, all the affected entities in the longline and albacore
troll fishing sectors are small entities, so there will be no
disproportionate impacts between small and large entities within those
sectors. In the purse seine fishing sector, slightly more than half the
affected entities are small entities. The direct effect of the final
rule will be to constrain fishing effort by purse seine fishing
vessels, with consequent constraining effects on both revenues (because
catches would be less) and operating costs (because less fishing would
be undertaken). Although some purse seine fishing entities are larger
than others, NMFS is not aware of any differences between the small
entities and the large entities (as defined by the RFA) in terms of
their capital costs, operating costs, or other aspects of their
businesses. Accordingly, there is no information to suggest that the
direct adverse economic impacts on small purse seine entities will be
disproportionately greater than those on large purse seine entities.
Steps Taken To Minimize the Significant Economic Impacts on Small
Entities
NMFS has sought to identify alternatives that would minimize the
final rule's economic impacts on small entities (``significant
alternatives''). Taking no action could result in lesser adverse
economic impacts than the final rule for affected entities (but as
described below, for some affected longline entities, the final rule
could be more economically beneficial than no-action), but NMFS has
rejected the no-action alternative because it would be inconsistent
with the United States' obligations under the Convention. Alternatives
identified for each of the four elements of the final rule are
discussed below.
1. Longline Bigeye Tuna Catch Limits
NMFS has not identified any significant alternatives for this
element of the final rule, other than the no-action alternative.
2. FAD Restrictions
NMFS considered in detail one alternative to this element of the
final rule, but only with respect to the timing of the two-month FAD
closure for the high seas. CMM 2017-01 allows members to choose either
November-December, as in this final rule, or April-May. NMFS has
compared the expected direct economic impacts of the two alternatives
on purse seine fishing businesses in the regulatory impact review
prepared for the proposed rule. The analysis finds that a November-
December closure is more likely to have a lesser direct economic impact
on those businesses than an April-May closure, primarily because the
later closure period is more likely to run concurrently with a closure
of the high seas in the Convention Area to purse seine fishing (if the
fishing effort limit in this final rule is reached), in which case the
FAD closure would bring no additional economic impacts. NMFS has
rejected the alternative of an April-May FAD closure for that reason.
Please see Comment 5 above, for a summary of the comments received on
this matter, as well as NMFS' response to those comments.
3. Purse Seine Fishing Effort Limits
In the past, Commission decisions did not expressly limit NMFS'
ability to implement the U.S. purse seine fishing effort limits on the
high seas and in the U.S. EEZ as a single combined limit in the ELAPS.
As described above, for this final rule, in light of the plain language
of Paragraph 29 of CMM 2017-01, which sets forth specific rules and
guidelines regarding transferring fishing days from the U.S. EEZ limit
to the high seas limit for the United States for 2018, we believe we
are required to separately establish and enforce the U.S. high seas
limit and the U.S. EEZ limit. Thus, NMFS is not implementing the
alternative of combining the two limits into a single limit for the
ELAPS for 2018. However, NMFS has analyzed this alternative here and in
the revised RIR and, and will continue to consider this alternative in
2019 or 2020 (as described in the proposed rule and the RIR, the
analysis for the rule is for a three-year time period), to the extent
it is consistent with future Commisison decisions on tropical tuna
management.
A combined limit would provide 1,828 fishing days per calendar year
in the ELAPS (versus, under the rule, an annual limit of 1,370 fishing
days on the high seas and a separate annual limit of 458 fishing days
in the U.S. EEZ, with the possibility of an increase in the latter to
558 fishing days if the 458 fishing days are used by October 1, 2018).
It is difficult to predict the behavior and performance of vessels
under these two alternatives, but they could have different economic
impacts on fishing businesses. The rule, with separate limits, offers
the potential of more fishing days per year (1,928) than under the
alternative of a combined limit (1,828). However, it does not appear
likely that 458 fishing days will be used in the U.S. EEZ by October 1,
2018, so it is likely that both alternatives offer a total of 1,828
fishing days. A single combined limit offers more operational
flexibility for the fleet as a whole than separate limits, and that
greater flexibility would be expected to result in fewer losses to some
or most of the affected fishing businesses. For example, under separate
limits, the U.S. EEZ limit appears less constraining than the high seas
limit, so it would likely be more costly to the fleet as a whole to
make full use of both limits than it would to make full use of the
single combined limit. However, the expected impacts of the two
alternatives on fishing businesses would be dependent on whether a
given vessel has a fishery endorsement on its U.S. Coast Guard
Certificate of Documentation, which is required to fish in the U.S.
EEZ. With separate limits for the U.S. EEZ and high seas, those vessels
without fishery endorsements, which comprise the majority of the fleet,
would not have access to the 458 (or possibly 558) fishing days per
year for the U.S. EEZ, but under a combined limit for the ELAPS, those
fishing days could be used on the high seas, so they would be
[[Page 33869]]
effectively available to all affected fishing businesses. Thus, a
single combined limit would appear to be more favorable to vessels
without fishery endorsements. Having separate limits could be
advantageous to vessels with fishery endorsements if the high seas
limit is reached before the U.S. EEZ limit is reached, which appears
likely for 2018. In that case, the remainder of the limit for the U.S.
EEZ would be available only to vessels with fishery endorsements. If
the U.S. EEZ limit were more constraining than the high seas limit
under separate limits (which it appears not to be), then separate
limits would appear to be less advantageous to vessels with fishery
endorsements than a combined limit, since under a combined limit they
would have more time to fish in both the U.S. EEZ and on the high seas.
4. Eastern High Seas Special Management Area
NMFS has not identified any significant alternatives for this
element of the final rule, other than the no-action alternative.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. NMFS has
prepared small entity compliance guides for this rule, and will send
the appropriate guides to holders of permits in the relevant fisheries.
The guides and this final rule also will be available at
www.fpir.noaa.gov and by request from NMFS PIRO (see ADDRESSES).
Paperwork Reduction Act
This final rule contains a revised collection-of-information
requirement subject to review and approval by OMB under the PRA. This
requirement has been submitted to OMB for approval under Control Number
0648-0649. Public reporting burden for the daily report of purse seine
effort information is estimated to average 10 minutes per response,
including the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection information.
One comment was received on this collection-of-information
requirement in response to the proposed rule (see Comment 10 and NMFS'
response, above). Send comments on these or any other aspects of the
collection of information to Michael D. Tosatto, Regional
Administrator, NMFS PIRO (see ADDRESSES), and by email to
[email protected] or fax to 202-395-5806.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
List of Subjects in 50 CFR Part 300
Administrative practice and procedure, Fish, Fisheries, Fishing,
Marine resources, Reporting and recordkeeping requirements, Treaties.
Dated: July 13, 2018.
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
Subpart O--Western and Central Pacific Fisheries for Highly
Migratory Species
0
1. The authority citation for 50 CFR part 300, subpart O, continues to
read as follows:
Authority: 16 U.S.C. 6901 et seq.
0
2. In Sec. 300.211, add a definition in alphabetical order for
``Active FAD'' to read as follows:
Sec. 300.211 Definitions.
* * * * *
Active FAD is a FAD that is equipped with a buoy with a clearly
marked reference number allowing its identification and equipped with a
satellite tracking system to monitor its position.
* * * * *
0
3. In Sec. 300.217, revise paragraph (b)(1) to read as follows:
Sec. 300.217 Vessel identification.
* * * * *
(b) * * *
(1) Vessels shall be marked in accordance with the identification
requirements of Sec. 300.336(b)(2), and if an IRCS has not been
assigned to the vessel, then the Federal, State, or other documentation
number used in lieu of the IRCS must be preceded by the characters
``USA'' and a hyphen (that is, ``USA-'').
* * * * *
0
4. In Sec. 300.218, revise paragraphs (a)(2)(v) and (g) to read as
follows:
Sec. 300.218 Reporting and recordkeeping requirements.
(a)* * *
(2)* * *
(v) High seas fisheries. Fishing activities subject to the
reporting requirements of Sec. 300.341 must be maintained and reported
in the manner specified in Sec. 300.341(a).
* * * * *
(g) Daily purse seine fishing effort reports. If directed by NMFS,
the owner or operator of any fishing vessel of the United States
equipped with purse seine gear must report to NMFS, for the period and
in the format and manner directed by the Pacific Islands Regional
Administrator, within 24 hours of the end of each day that the vessel
is at sea in the Convention Area, the activity of the vessel (e.g.,
setting, transiting, searching), location and type of set, if a set was
made during that day.
* * * * *
0
5. In Sec. 300.222, revise paragraphs (v), (w), (oo), and (pp) to read
as follows:
Sec. 300.222 Prohibitions.
* * * * *
(v) Use a fishing vessel equipped with purse seine gear to fish in
an area closed to purse seine fishing under Sec. 300.223(a).
(w) Set a purse seine around, near or in association with a FAD or
a vessel, deploy, activate, or service a FAD, or use lights in
contravention of Sec. 300.223(b).
* * * * *
(oo) Transship in the Eastern High Seas Special Management Area in
contravention of Sec. 300.225.
(pp) Fail to submit, or ensure submission of, a daily purse seine
fishing effort report as required in Sec. 300.218(g).
* * * * *
0
6. In Sec. 300.223, revise paragraphs (a) and (b) to read as follows:
Sec. 300.223 Purse seine fishing restrictions.
* * * * *
(a) Fishing effort limits. This paragraph establishes limits on the
number of fishing days that fishing vessels of the United States
equipped with purse seine gear may operate in the Convention Area in
the area between
[[Page 33870]]
20[deg] N latitude and 20[deg] S latitude in a calendar year.
(1) For the high seas there is a limit of 1,370 fishing days in
2018.
(2) For the U.S. EEZ there is a limit of 458 fishing days for 2018.
If NMFS expects that this limit will be reached by October 1, 2018,
NMFS will publish a document in the Federal Register increasing the
limit for that calendar year to 558 fishing days no later than seven
days prior to October 1, 2018.
(3) NMFS will determine the number of fishing days spent on the
high seas and in the U.S. EEZ in each calendar year using data
submitted in logbooks and other available information. After NMFS
determines that a limit in a calendar year is expected to be reached by
a specific future date, and at least seven calendar days in advance of
the closure date, NMFS will publish a document in the Federal Register
announcing that the purse seine fishery in the area where the limit is
expected to be reached will be closed starting on that specific future
date and will remain closed until the end of the calendar year.
(4) Once a fishery closure is announced pursuant to paragraph
(a)(3) of this section, fishing vessels of the United States equipped
with purse seine gear may not be used to fish in the closed area during
the period specified in the Federal Register document, except that such
vessels are not prohibited from bunkering during a fishery closure.
(b) Use of fish aggregating devices. (1) During the periods and in
the areas specified in paragraph (b)(2) of this section, owners,
operators, and crew of fishing vessels of the United States equipped
with purse seine gear shall not do any of the activities described
below in the Convention Area in the area between 20[deg] N latitude and
20[deg] S latitude:
(i) Set a purse seine around a FAD or within one nautical mile of a
FAD.
(ii) Set a purse seine in a manner intended to capture fish that
have aggregated in association with a FAD or a vessel, such as by
setting the purse seine in an area from which a FAD or a vessel has
been moved or removed within the previous eight hours, or setting the
purse seine in an area in which a FAD has been inspected or handled
within the previous eight hours, or setting the purse seine in an area
into which fish were drawn by a vessel from the vicinity of a FAD or a
vessel.
(iii) Deploy a FAD into the water.
(iv) Repair, clean, maintain, or otherwise service a FAD, including
any electronic equipment used in association with a FAD, in the water
or on a vessel while at sea, except that:
(A) A FAD may be inspected and handled as needed to identify the
FAD, identify and release incidentally captured animals, un-foul
fishing gear, or prevent damage to property or risk to human safety;
and
(B) A FAD may be removed from the water and if removed may be
repaired, cleaned, maintained, or otherwise serviced, provided that it
is not returned to the water.
(v) From a purse seine vessel or any associated skiffs, other
watercraft or equipment, do any of the following, except in emergencies
as needed to prevent human injury or the loss of human life, the loss
of the purse seine vessel, skiffs, watercraft or aircraft, or
environmental damage:
(A) Submerge lights under water;
(B) Suspend or hang lights over the side of the purse seine vessel,
skiff, watercraft or equipment, or;
(C) Direct or use lights in a manner other than as needed to
illuminate the deck of the purse seine vessel or associated skiffs,
watercraft or equipment, to comply with navigational requirements, and
to ensure the health and safety of the crew.
(2) The requirements of paragraph (b)(1) of this section shall
apply:
(i) From July 1 through September 30, in each calendar year;
(ii) In any area of high seas, from November 1 through December 31,
in each calendar year.
(3)(i) Activating FADs for purse seine vessels. A vessel owner,
operator, or crew of a fishing vessel of the United States equipped
with purse seine gear shall turn on the tracking equipment of an active
FAD while the FAD is onboard the vessel and before it is deployed in
the water.
(ii) Restrictions on Active FADs for purse seine vessels. U.S.
vessel owners and operators of a fishing vessel of the United States
equipped with purse seine gear shall not have more than 350 drifting
active FADs per vessel in the Convention Area at any one time.
* * * * *
0
7. In Sec. 300.224, revise paragraph (a)(1) and remove and reserve
paragraph (a)(2).
The revision reads as follows:
Sec. 300.224 Longline fishing restrictions.
(a) * * *
(1) There is a limit of 3,554 metric tons of bigeye tuna per
calendar year that may be captured in the Convention Area by longline
gear and retained on board by fishing vessels of the United States.
* * * * *
0
8. Revise Sec. 300.225 to read as follows:
Sec. 300.225 Eastern High Seas Special Management Area.
The owner and operator of a fishing vessel of the United States
used for commercial fishing for HMS is prohibited from engaging in
transshipment in the Eastern High Seas Special Management Area.
[FR Doc. 2018-15341 Filed 7-17-18; 8:45 am]
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