[Federal Register Volume 79, Number 219 (Thursday, November 13, 2014)]
[Rules and Regulations]
[Pages 67359-67362]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26830]



National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 140131088-4913-02]
RIN 0648-BD94

International Fisheries; Western and Central Pacific Fisheries 
for Highly Migratory Species; Fishing Effort Limits in Purse Seine 
Fisheries for 2014

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.


SUMMARY: NMFS issues regulations under authority of the Western and 
Central Pacific Fisheries Convention Implementation Act (WCPFC 
Implementation Act) to revise the 2014 limit on fishing effort by U.S. 
purse seine vessels in the U.S. exclusive economic zone (U.S. EEZ) and 
on the high seas between the latitudes of 20[deg] N. and 20[deg] S. in 
the area of application of the Convention on the Conservation and 
Management of Highly Migratory Fish Stocks in the Western and Central 
Pacific Ocean (Convention). The total limit for 2014 is revised from 
2,588 fishing days to 1,828 fishing days. This action is necessary for 
the United States to implement provisions of a conservation and 
management measure (CMM) adopted by the Commission for the Conservation 
and Management of Highly Migratory Fish Stocks in the Western and 
Central Pacific Ocean (Commission) and to satisfy the obligations of 
the United States under the Convention, to which it is a Contracting 

DATES: This rule is effective December 15, 2014.

ADDRESSES: Copies of supporting documents prepared for this final rule, 
including the regulatory impact review (RIR) and the Supplemental 
Information Report prepared for National Environmental Policy Act 
(NEPA) purposes, as well as the proposed rule, are available via the 
Federal e-Rulemaking Portal, at www.regulations.gov (search for Docket 
ID NOAA-NMFS-2014-0081). Those documents, and the small entity 
compliance guide prepared for this final rule, are also available from 
NMFS at the following address: Michael D. Tosatto, Regional 
Administrator, NMFS, Pacific Islands Regional Office (PIRO), 1845 Wasp 
Blvd., Building 176, Honolulu, HI 96818. The initial regulatory 
flexibility analysis (IRFA) and final regulatory flexibility analysis 
(FRFA) prepared under the authority of the Regulatory Flexibility Act 
(RFA) are included in the proposed rule and this final rule, 




    On July 25, 2014, NMFS published a proposed rule in the Federal 
Register (79 FR 43373) to revise regulations at 50 CFR part 300, 
subpart O, to implement a decision of the Commission. The proposed rule 
was open for public comment through August 25, 2014.
    This final rule is issued under the authority of the WCPFC 
Implementation Act (16 U.S.C. 6901 et seq.), which authorizes the 
Secretary of Commerce, in consultation with the Secretary of State and 
the Secretary of the Department in which the United States Coast Guard 
is operating (currently the Department of Homeland Security), to 
promulgate such regulations as may be necessary to carry out the 
obligations of the United States under the Convention, including the 
decisions of the Commission. The authority to promulgate regulations 
has been delegated to NMFS.
    This final rule implements for U.S. fishing vessels some of the 
purse seine-related provisions of the Commission's Conservation and 
Management Measure (CMM) 2013-01, ``Conservation and Management Measure 
for Bigeye, Yellowfin and Skipjack Tuna in the Western and Central 
Pacific Ocean.'' The preamble to the proposed rule includes detailed 
background information, including on the Convention and the Commission, 
the provisions of CMM 2013-01 being implemented in this rule, and the 
bases for the proposed regulations, which is not repeated here.

New Requirements

    This final rule revises the existing limit on the number of fishing 
days that may be used by U.S. purse seine vessels in 2014 in an area 
called the Effort Limit Area for Purse Seine (ELAPS). The ELAPS 
includes all areas of the high seas and U.S. EEZ within the Convention 
Area between the latitudes of 20[deg] North and 20[deg] South (but not 
the U.S. territorial sea). The limit is revised from 2,588 fishing days 
to 1,828 fishing days.
    Once NMFS determines during 2014 that, based on available 
information, the limit is expected to be reached by a specific future 
date, NMFS will issue a notice in the Federal Register announcing the 
closure of the U.S. purse seine fishery in the ELAPS starting on that 
specific future date. Upon any closure, it will be prohibited to use a 
U.S. purse seine vessel to fish in the ELAPS through the end of the 
calendar year. NMFS will publish the notice at least seven calendar 
days before the effective date of the closure to provide fishermen 
advance notice of the closure.

Comments and Responses

    NMFS received three sets of comments on the proposed rule and 
supporting documents. The comments are summarized below, followed by 
responses from NMFS.
    Comment 1: I support this rule to reduce fishing days in order to 
conserve our fish stocks.
    Response: NMFS acknowledges the comment.
    Comment 2: I fail to see how the proposed rule would protect the 
stock with the Asian and Pacific Island countries continuing to add 
boats to their Pacific Ocean fleets while the United States plays into 
their hands and continues to strangle-hold our fleet. Soon, all fish 
sold in the U.S. market will be sourced from foreign vessels, which are 
less-than-ideal role models.
    These areas are highly regulated, as U.S. boats must be U.S.-built 
and have a fisheries endorsement to fish in these areas; and that is 
less than one third of the U.S. fleet. My boat is U.S.-built but cannot 
fish in U.S. waters. But instead of our government helping me to gain 
access, it just adds more unnecessary regulations.
    There are countries that continue to add boats and to fish on fish 
aggregating devices even during the closure while not living up to 
their responsibilities that are already in place.
    I propose to postpone implementing the limit until a long-term 
solution is agreed and implemented by all in the Commission, as this is 
not a permanent solution. These areas are not in danger from U.S. 
boats. However, the U.S. boats are the eyes and ears, and have in the 
past found and reported illegal, unreported, and unregulated fishing in 
the U.S. EEZ. The U.S. boats do not receive any reimbursement for time 

[[Page 67360]]

fuel for this reporting, but it is the right thing to do.
    While areas continue to be closed off, we are only hurting the 
stocks as we are allowing the Pacific Island Parties to focus 
international fishing efforts into their exclusive economic zones for 
purely economic reasons, rather than focusing on efforts to truly 
conserve, by limiting vessels. Remember these are highly migratory 
species. I compare the focusing of effort to sunlight: Normally, it 
will not hurt you, but if you focus sunlight through a magnifying 
glass, it will burn; this is what is being done by driving effort into 
smaller areas.
    Postpone this proposed rule, or better, cancel it, as these areas 
are already regulated by the United States. The problem can be 
addressed and solved on the international level rather than strangle-
holding our fleet while others continue to add boats, skirt 
regulations, and worst of all, not even enforce what is already in 
    Support the U.S. fleet and the stock and push for vessel limits on 
all fleets, as the catch phrase ``domestic fleet'' is simply Asian 
boats that are flagged in the islands. Work with the U.S. fleet instead 
of against it; we are the highest regulated fleet in the world, and we 
are ahead of the curve, as we have already dropped our fishing efforts 
(numbers of boats) in the 1980s when the U.S. Tuna Treaty (Treaty on 
Fisheries between the Governments of Certain Pacific Island States and 
the Government of the United States of America, also known as the South 
Pacific Tuna Treaty, or SPTT) was signed, well ahead of other fleets 
that are continuing to add effort.
    Let's be logical and work together and protect the stock and our 
food source.
    Response: NMFS recognizes that if the United States imposes 
Commission-mandated requirements on its vessels, such as limits on 
fishing effort, and other members of the Commission do not do the 
same--despite being required to do so under the Convention--for their 
vessels, U.S. fishing vessels can be put at a competitive disadvantage 
relative to the fishing vessels of other members. If that disadvantage 
is severe enough, U.S. vessels could supply less product than they 
formerly did, resulting in shifts in the sources of fish sold in U.S. 
and other markets. NMFS also recognizes that if other Commission 
members fail to fully implement the decisions of the Commission, such 
as the provisions of CMM 2013-01, those decisions are less likely to 
achieve their fish stock conservation objectives. However, in order to 
satisfy the obligations of the United States as a party to the 
Convention and member of the Commission, NMFS is required to implement 
the Commission-mandated fishing effort limits for U.S. purse seine 
vessels. Accordingly, the commenter's proposal to postpone or cancel 
implementation would not satisfy U.S. obligations under the Convention. 
NMFS is proceeding with implementation through this final rule. NMFS 
also notes that the United States, as a member of the Commission, is 
contributing to and has prioritized the development of the Commission's 
compliance monitoring scheme, with the aim of improving compliance with 
Commission decisions by all its members.
    Comment 3: The American Tunaboat Association (ATA) is composed of 
the owners of all U.S.-flag purse seine vessels fishing in the western 
Pacific Ocean. There will be a direct and significant impact on the 
U.S. fleet should this proposed rule be finalized as written.
    The proposed reduction in allowable fishing days in the ELAPS from 
2,588 to 1,828 would be a substantial loss of fishing opportunities for 
U.S. vessels at a time of great uncertainty regarding fishing access 
under the SPTT. The ATA understands that there may be little 
flexibility in implementing the Commission measure establishing a 
fishing day limit on the high seas, but we note that there is 
flexibility for the U.S. EEZs. Therefore, in combining the two areas as 
the ELAPS, a level higher than 1,828 fishing days is justified.
    The ELAPS limits are not based on science relative to the 
conservation of the tuna stocks. The science provider to the Commission 
has not recommended, as a conservation measure, limits on catches of 
tunas on the high seas, or in any particular economic zones. This is an 
important point, because that truth provides the United States with 
more flexibility in the manner in which it regulates the U.S. fleet. 
For example, the United States could establish a larger number for 
allowable catches in the U.S. EEZ based on using certain past high 
years as base years. Given the variability in the availability of 
highly migratory stocks in different areas during different years, and 
the relevance of the fishing strategies that are employed in any given 
year, such an approach would not be unreasonable.
    The ATA urges NMFS to develop such an alternative approach and 
provide for a larger ELAPS limit than 1,828 fishing days. We also 
believe that, if all fishing by purse seine vessels is prohibited in 
these remote island areas as a result of an expansion of the Pacific 
marine monuments, as is being contemplated by the Administration (an 
action strongly opposed by ATA), the consequent lost fishing 
opportunities should be compensated for by allowing more fishing on the 
same stocks elsewhere; that is, on the high seas. From a science or 
conservation point of view, there would be no detriment to the tuna 
stocks from such an approach.
    Response: NMFS acknowledges that the proposed rule could have 
direct economic impacts on participants in the U.S. purse seine fleet 
in the western and central Pacific Ocean (WCPO). As described in the 
RIR and IRFA prepared for this action, the impacts could be minor or 
substantial, depending on such factors as the length of the closure of 
the ELAPS in the event the limit is reached, whether the EEZs of the 
FFA members remain available for fishing during such a closure, and 
oceanic conditions.
    This rule implements certain provisions of CMM 2013-01, which 
directs coastal members like the United States to ``establish effort 
limits, or equivalent catch limits for purse seine fisheries within 
their EEZs that reflect the geographical distributions of skipjack, 
yellowfin, and bigeye tunas, and are consistent with the objectives for 
those species'' (excerpt from paragraph 23 of CMM 2013-01). CMM 2013-01 
further requires, ``Those coastal States that have already notified 
limits to the Commission shall restrict purse seine effort and/or catch 
within their EEZs in accordance with those limits'' (excerpt from 
paragraph 23 of CMM 2013-01). Because the United States has previously 
notified the Commission of its purse seine effort limits for the U.S. 
EEZ since the limits were first established in 2009 (in a final rule 
published August 4, 2009; 74 FR 38544), the United States is obligated 
to continue to apply the same limits for the U.S. EEZ. Thus, CMM 2013-
01 does not change the applicable purse seine fishing effort limit for 
the U.S. EEZ, and for that reason NMFS does not agree that there is 
flexibility in the limit for the U.S. EEZ or that a limit for the ELAPS 
of more than 1,828 fishing days is justified in this rule to implement 
provisions of CMM 2013-01.
    Finally, on September 25, 2014, President Obama issued Proclamation 
9173 extending the boundaries of the Pacific Remote Islands Marine 
National Monument around Jarvis Island, Wake Island, and Johnston Atoll 
to the outer limit of the U.S. EEZ. Under the Proclamation, commercial 
fishing is prohibited in the expansion area. NMFS acknowledges that the 
prohibition of commercial fishing within the expansion area will limit 
the fishing grounds available to U.S. purse seine vessels; however, we 
note that the expansion area represents a small

[[Page 67361]]

fraction of the U.S. purse seine fleet's typical fishing grounds in the 

Changes From the Proposed Rule

    No changes from the proposed rule have been made in this final 


    The Administrator, Pacific Islands Region, NMFS, has determined 
that this final rule is consistent with the WCPFC Implementation Act 
and other applicable laws.

Executive Order 12866

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

Regulatory Flexibility Act (RFA)

    A FRFA was prepared. The FRFA incorporates the IRFA prepared for 
the proposed rule. The analysis in the IRFA is not repeated here in its 
    A description of the action, why it is being considered, and the 
legal basis for this action are contained in the preamble of the 
proposed rule and in the SUMMARY and SUPPLEMENTARY INFORMATION sections 
of this final rule, above. The analysis follows.

Significant Issues Raised by Public Comments in Response to the IRFA

    NMFS did not receive any comments on the IRFA itself, but two sets 
of comments could pertain to small entities. See Comments 2 and 3 on 
the proposed rule, and NMFS' responses, above.

Description of Small Entities to Which the Rule Will Apply

    Small entities include ``small businesses,'' ``small 
organizations,'' and ``small governmental jurisdictions.'' The Small 
Business Administration (SBA) has established size standards for all 
major industry sectors in the United States, including commercial 
finfish harvesters (NAICS code 114111). A business primarily involved 
in finfish harvesting is classified as a small business if it is 
independently owned and operated, is not dominant in its field of 
operation (including its affiliates), and has combined annual receipts 
not in excess of $20.5 million for all its affiliated operations 
    This final rule will apply to owners and operators of U.S. purse 
seine vessels used for fishing in the Convention Area. The number of 
affected vessels is the number licensed under the Treaty on Fisheries 
between the Governments of Certain Pacific Island States and the 
Government of the United States of America (South Pacific Tuna Treaty, 
or SPTT). The current number of licensed vessels is 40, the maximum 
number of licenses available under the SPTT (excluding joint-venture 
licenses, of which there are five available under the SPTT, none of 
which have ever been applied for or issued).
    Based on (limited) available financial information about the 
affected fishing vessels and the SBA's small entity size standards for 
commercial finfish harvesters, and using individual vessels as proxies 
for individual businesses, NMFS believes that all the affected fish 
harvesting businesses are small entities. As stated above, there are 
currently 40 purse seine vessels in the affected purse seine fishery. 
Neither gross receipts nor ex-vessel price information specific to the 
40 vessels are available to NMFS. Average annual receipts for each of 
the 40 vessels during the last 3 years for which reasonably complete 
data are available (2010-2012) were estimated as follows: The vessel's 
reported retained catches of skipjack tuna, yellowfin tuna, and bigeye 
tuna in each year were each multiplied by an indicative Asia-Pacific 
regional cannery price for that species and year (developed by the 
Pacific Islands Forum Fisheries Agency and available at https://www.ffa.int/node/425#attachments); the products were summed across 
species for each year; and the sums were averaged across the 3 years. 
The estimated average annual receipts for each of the 40 vessels were 
less than the $20.5 million threshold used to classify businesses as 
small entities under the SBA size standard for finfish harvesting 

Recordkeeping, Reporting, and Other Compliance Requirements

    The final rule will not establish any new reporting or 
recordkeeping requirements within the meaning of the Paperwork 
Reduction Act. The classes of small entities subject to the 
requirements and the types of professional skills necessary to fulfill 
each of the requirements are described in the IRFA.

Disproportionate Impacts

    There would be no disproportionate economic impacts between small 
and large entities operating purse seine vessels as a result of this 
final rule. Furthermore, there would be no disproportionate economic 
impacts based on vessel size, gear, or homeport.

Steps Taken To Minimize the Significant Economic Impacts on Small 

    In previous rulemakings to establish or revise U.S. purse seine 
fishing effort limits in the ELAPS in accordance with Commission 
decisions, NMFS considered a number of alternatives. The alternatives 
included different time scales for the limits (e.g., single-year versus 
multiple-year limits); whether separate limits or a combined limit 
would be established in the U.S. EEZ and high seas portions of the 
ELAPS; whether the limit(s) would be allocated to individual vessels; 
and different magnitudes of the limit(s).
    The first category of alternatives, time scales, is not relevant 
here because the objective is to implement the required fishing effort 
limit for 2014 only.
    The second category of alternatives--whether or not to break up the 
ELAPS limit into separate limits for the U.S. EEZ and the high seas 
portions of the ELAPS--would provide less operational flexibility for 
affected purse seine vessels, and thus be more constraining and costly 
than the proposed limit. It is rejected for that reason.
    The third category of alternatives, allocating the limit among 
individual vessels, would likely alleviate any adverse impacts of a 
race-to-fish that might occur as a result of establishing the 
competitive fishing effort limits as in the proposed rule. As described 
in the IRFA, those potential impacts include lower prices for landed 
product, as well as risks to performance and safety stemming from 
fishing during sub-optimal times. Those impacts, however, are expected 
to be minor. Furthermore, developing the necessary allocation criteria 
and procedures would be a substantial and lengthy process that probably 
could not be completed in time to implement this limit for 2014. For 
these reasons, this alternative is rejected.
    Regarding the fourth category of alternatives (the magnitude of the 
limits), NMFS considered, for the 2013 rule that established the 2013 
ELAPS limit and existing 2014 ELAPS limit, both smaller and larger 
limits for the ELAPS. Smaller limits, being more constraining and 
costly to affected fishing businesses, are not considered further here. 
With respect to larger limits, in the 2013 rule, NMFS considered an 
alternative that would be based in part on the fleet's greatest annual 
level of fishing effort in the U.S. EEZ (on an average per-vessel 
basis, then expanded to a 40-vessel-equivalent) during the 1997-2010 
time period. For this rule, NMFS considered an alternative using the 
same approach considered in the 2013 rule. Using that approach, the 
limit in the U.S. EEZ would be 1,655 fishing days, and when combined 
with the high seas limit of 1,270 fishing days, the total ELAPS limit 
would be 2,925 fishing days. Because

[[Page 67362]]

this alternative limit is greater and thus less constraining than a 
limit of 1,828 fishing days (as well as the existing limit of 2,588 
fishing days), the costs of complying with this alternative would be 
less than or equal to those of the proposed limit of 1,828 fishing 
days. This alternative is rejected because it would depart from the way 
that the effort limits established for the period 2009-2013 were 
determined. The approach used in formulating the limit in this final 
rule is the same as that used to establish ELAPS limits in the 2009 
rule, the 2011 rule, and the 2013 rule, and affected entities have been 
exposed to the impacts of those limits for the past 5 years. 
Furthermore, as explained in NMFS' response to Comment 3, above, CMM 
2013-01 does not all allow for higher purse seine effort limits in the 
U.S. EEZ than those already notified to the Commission.
    The alternative of taking no action at all, which would leave the 
existing 2014 ELAPS limit of 2,588 fishing days in place, is rejected 
because it would fail to accomplish the objective of the WCPFC 
Implementation Act or satisfy the obligations of the United States as a 
Contracting Party to the Convention.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide has been 
prepared. The guide will be sent to permit and license holders in the 
affected fisheries. The guide and this final rule will also be 
available at www.fpir.noaa.gov and by request from NMFS PIRO (see 

List of Subjects in 50 CFR Part 300

    Administrative practice and procedure, Fish, Fisheries, Fishing, 
Marine resources, Reporting and recordkeeping requirements, Treaties.

    Dated: November 6, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 300 is amended 
as follows:


1. The authority citation for 50 CFR part 300, subpart O, continues to 
read as follows:

    Authority:  16 U.S.C. 6901 et seq.

2. In Sec.  300.223, paragraph (a)(1) is revised to read as follows:

Sec.  300.223  Purse seine fishing restrictions.

* * * * *
    (a) * * *
    (1) For calendar year 2014 there is a limit of 1,828 fishing days.
* * * * *
[FR Doc. 2014-26830 Filed 11-12-14; 8:45 am]