[Federal Register Volume 78, Number 45 (Thursday, March 7, 2013)]
[Proposed Rules]
[Pages 14755-14762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-05330]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 130104011-3011-01]
RIN 0648-BC87


International Fisheries; Western and Central Pacific Fisheries 
for Highly Migratory Species; Fishing Restrictions and Observer 
Requirements in Purse Seine Fisheries for 2013-2014

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations under authority of the Western and 
Central Pacific Fisheries Convention Implementation Act (WCPFC 
Implementation Act) to implement limits on fishing effort by U.S. purse 
seine vessels in the U.S. exclusive economic zone and on the high seas, 
restrictions on the use of fish aggregating devices (FADs), and 
requirements for U.S. purse seine vessels to carry observers. 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 (WCPFC) and to satisfy the 
international obligations of the United States under the Convention on 
the Conservation and Management of Highly Migratory Fish Stocks in the 
Western and Central Pacific Ocean (Convention), to which it is a 
Contracting Party.

DATES: Comments must be submitted in writing by April 8, 2013.

ADDRESSES: You may submit comments on this proposed rule, identified by 
NOAA-NMFS-2013-0043, and the regulatory impact review (RIR) prepared 
for this proposed rule, by either of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail; D=;NOAA-NMFS-2013-0043, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Michael D. Tosatto, 
Regional Administrator, NMFS, Pacific Islands Regional Office (PIRO), 
1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-4700.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
might not be considered by NMFS. All comments received are a part of 
the public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name and address), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    An initial regulatory flexibility analysis (IRFA) prepared under 
authority of the Regulatory Flexibility

[[Page 14756]]

Act is included in the Classification section of the SUPPLEMENTARY 
INFORMATION section of this proposed rule.
    Copies of the EA and RIR prepared for this proposed rule are 
available from www.regulations.gov or may be obtained from Michael D. 
Tosatto, NMFS PIRO (see address above).

FOR FURTHER INFORMATION CONTACT: Tom Graham, NMFS PIRO, 808-944-2219.

SUPPLEMENTARY INFORMATION:

Background on the Convention and the WCPFC

    The Convention Area comprises the majority of the western and 
central Pacific Ocean (WCPO). A map showing the boundaries of the 
Convention Area can be found on the WCPFC Web site at: www.wcpfc.int/doc/convention-area-map. The Convention focuses on the conservation and 
management of highly migratory species (HMS) and the management of 
fisheries for HMS. The objective of the Convention is to ensure, 
through effective management, the long-term conservation and 
sustainable use of HMS in the WCPO.
    As a Contracting Party to the Convention and a Member of the WCPFC, 
the United States is obligated to implement the decisions of the WCPFC. 
The WCPFC Implementation Act (16 U.S.C. 6901 et seq.), authorizes the 
Secretary of Commerce, in consultation with the Secretary of State and 
the Secretary of the Department in which the United States Coast Guard 
is operating (currently the Department of Homeland Security), to 
promulgate such regulations as may be necessary to carry out the 
obligations of the United States under the Convention, including the 
decisions of the WCPFC. The Secretary of Commerce has delegated the 
authority to promulgate regulations to NMFS.

WCPFC Decisions Regarding Purse Seine Fisheries and Description of the 
Proposed Action

    At its Ninth Regular Session, in December 2012, the WCPFC adopted 
CMM 2012-01, ``Conservation and Management Measure for Bigeye, 
Yellowfin and Skipjack Tuna in the Western and Central Pacific Ocean.'' 
The CMM's stated general objective is to ensure that the stocks of 
bigeye tuna (Thunnus obesus), yellowfin tuna (Thunnus albacares), and 
skipjack tuna (Katsuwonus pelamis) in the WCPO are, at a minimum, 
maintained at levels capable of producing their maximum sustainable 
yield as qualified by relevant environmental and economic factors. The 
CMM includes specific objectives for each of the three stocks: For 
each, the fishing mortality rate is to be reduced to or maintained at 
levels no greater than the fishing mortality rate associated with 
maximum sustainable yield. The requirements of the CMM, identified as 
``interim'' measures, are for calendar year 2013. The CMM also calls 
for the WCPFC to establish, at its regular annual session in December 
2013, a multi-year management program for 2014-2017 for the three 
stocks.
    CMM 2012-01 is the most recent in a series of CMMs for the 
management of tropical tuna stocks under the purview of the WCPFC. It 
is a successor to CMM 2011-01, adopted in March 2012 (most provisions 
of which were applicable in 2012), and before that CMM 2008-01, adopted 
in December 2008 (most provisions of which were applicable in 2009-
2011). These CMMs are available with other decisions of the WCPFC at 
www.wcpfc.int/decisions.htm.
    In 2009 NMFS issued regulations to implement the purse seine-
related provisions of CMM 2008-01 (final rule published August 4, 2009; 
74 FR 38544; hereafter ``2009 rule''). In December 2011, after an 
intersessional decision by the WCPFC to extend CMM 2008-01, NMFS issued 
regulations to extend the purse seine-related regulations through 
December 31, 2012 (interim rule published December 30, 2011; 76 FR 
82180; hereafter ``2011 rule''). NMFS did not develop regulations to 
implement the purse seine-related provisions of CMM 2011-01 because the 
applicable provisions had already been effectively implemented in the 
2011 rule.
    CMM 2012-01 obligates WCPFC Members, Cooperating Non-members and 
Participating Territories (collectively, CCMs) to implement, for purse 
seine vessels, in the Convention Area between the latitudes of 20[deg] 
North and 20[deg] South: (1) Limits on fishing effort on the high seas 
and in their respective exclusive economic zones (EEZs); (2) 
restrictions on the use of fish aggregating devices (FADs), including a 
prohibition on setting on FADs during specified periods; (3) a 
requirement that observers be on board during all fishing trips, with 
certain exceptions; and (4) a requirement that all bigeye tuna, 
yellowfin tuna, and skipjack tuna be retained on board up to the point 
of first landing or transshipment, with certain exceptions.
    Unlike CMMs 2008-01 and 2011-01, the provisions of CMM 2012-01 
apply only to areas of high seas and EEZs within the Convention Area; 
they do not apply to territorial seas or archipelagic waters. 
Accordingly, the requirements of this proposed rule would apply only in 
areas of high seas and EEZs, which was not the case with all the 
requirements established in the 2009 rule and 2011 rule.
    The ``interim'' measures of CMM 2012-01 are applicable for 2013. 
The CMM also calls for the WCPFC to adopt a new CMM for bigeye, 
yellowfin, and skipjack tuna during its next regular annual session, in 
December 2013. The new CMM would be a multi-year management program for 
2014-2017 that is designed to achieve the management objectives for the 
three stocks that are set out in CMM 2012-01. Under section 505(a) of 
the WCPFC Implementation Act, NMFS is authorized to promulgate such 
regulations as may be necessary to carry out the Unites States' 
international obligations under the Convention. It is foreseeable that 
the new CMM would include some of the same provisions for purse seine 
vessels as those included in CMM 2012-01. NMFS proposes to implement 
this proposed rule for 2014 as well as 2013, as it believes this is the 
most effective way to ensure that the United States satisfies its 
international obligations under the Convention for 2014. Implementing 
this proposed rule for both 2013 and 2014 would also serve to provide 
early public notice that the regulations would remain the same in 2014 
unless the purse seine provisions of the new CMM differ from those in 
CMM 2012-01. Once the WCPFC adopts a new CMM, NMFS would take any steps 
necessary to implement the WCPFC's decision(s).
    This proposed rule would satisfy the obligations of the United 
States under CMM 2012-01 with respect to U.S. purse seine vessels. CMM 
2012-01 also includes requirements for longline vessels, which would be 
implemented for U.S. longline vessels in a separate rulemaking. This 
proposed rule includes three elements, corresponding to the first three 
of the four purse seine-related provisions of CMM 2012-01 identified 
above (i.e., fishing effort limits, FAD restrictions, and observer 
requirements). The fourth purse seine-related provision of CMM 2012-
01--the catch retention requirement for bigeye tuna, yellowfin tuna and 
skipjack tuna--would not be implemented in this proposed rule because 
that requirement is already in effect for 2013 and 2014 (see final rule 
issued December 3, 2012, removing the December 31, 2012, termination 
date of the catch retention provisions; 77 FR 71501). Further 
information on the three elements of this proposed rule follows:

[[Page 14757]]

(1) Fishing Effort Limits

    The proposed rule would establish limits for each of calendar years 
2013 and 2014 on the number of fishing days that may be used by the 
U.S. purse seine fleet in the U.S. EEZ and on the high seas within the 
Convention Area between the latitudes of 20[deg] North and 20[deg] 
South.
    With respect to the U.S. EEZ, CMM 2012-01 requires coastal CCMs 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.'' With respect to the high seas, CMM 
2012-01 requires CCMs to ``take measures not to increase fishing days 
on high seas.'' For the purpose of these limits, and in order to 
provide continued operational flexibility for affected purse seine 
vessels, the high seas and U.S. EEZ within the Convention Area would be 
combined into a single area--called the Effort Limit Area for Purse 
Seine, or ELAPS, as similarly done in the 2009 rule and 2011 rule.
    The limit in the ELAPS would apply on a calendar-year basis, in 
each of 2013 and 2014. The limit for each year would be 2,588 fishing 
days. This is the same rate at which fishing effort was limited in the 
2009 rule for the years 2009-2011, and extended by interim final rule 
for the year 2012. The limiting fishing rate of 2,588 fishing days per 
year was based on fishing effort by the U.S. purse seine fleet in the 
reference year of 2004, as specified in CMM 2008-01, and the size of 
the fleet at that time as compared to the number of U.S. vessels 
allowed to be licensed under the Treaty on Fisheries between the 
Governments of Certain Pacific Islands States and the Government of the 
United States of America (aka South Pacific Tuna Treaty, or SPTT). The 
limits in 2009-2012 were implemented as overlapping multi-year limits, 
with a limit of 3,882 fishing days in each year, a limit of 6,470 
fishing days in each two-year period, and a limit of 7,764 fishing days 
(i.e., three times the base rate of 2,588 fishing days per year) for 
each three-year period. The three-year limits were for the purpose of 
constraining fishing effort within the WCPFC-mandated limits, while the 
one- and two-year limits were aimed at avoiding unduly long closed 
periods. Further details on the basis for the limits established in the 
2009 rule are available in that final rule and the proposed rule that 
led to it (published June 1, 2009; 74 FR 26160). Because the provisions 
of CMM 2012-01 are for a one-year period and because modifications to 
the effort limits established in this proposed rule might be needed if 
the WCPFC adopts a new CMM at the end of 2013, the fishing effort 
limits in this proposed rule are annual limits.

(2) FAD Restrictions

    CMM 2012-01 requires CCMs to prohibit their purse seine vessels 
from setting on FADs in EEZs and on the high seas in the Convention 
Area between the latitudes of 20[deg] North and 20[deg] South from July 
1 through September 30. The CMM further requires CCMs to either 
prohibit setting on FADs in October or limit the total number of FAD 
sets in the calendar year by the CCM's purse seine fleet to two-thirds 
of the fleet's average annual number in the 2001-2011 period, as 
specified in Attachment A of CMM 2012-01 (for a CCM that is a Small 
Island Developing State, the total annual limit on FAD sets would be 
eight-ninths of its fleet's 2009-2012 annual average). For the U.S. 
purse seine fleet, the calendar-year limit would be 1,464 FAD sets. 
Assuming that fishing patterns in 2013 would be similar to those in 
recent years, and because the limit-year would start January 1, the 
2013 limit of 1,464 FAD sets would be expected to be reached as early 
as April 2013. It is infeasible for NMFS to complete the rulemaking 
process that would be necessary to establish the limit and the legal 
mechanism to prohibit further FAD sets once the limit is reached before 
April, the date the fleet would likely reach the FAD set limit. 
Furthermore, NMFS finds that it would not be feasible to establish by 
that time the mechanism needed to monitor FAD sets with respect to the 
limit and to reliably project when the limit is likely to be reached so 
that further FAD sets can be prohibited in a timely manner. For 
example, a system would have to be established for rapidly processing 
data collected from vessel observers and/or masters and for using those 
data to project future levels of FAD sets in advance of actually 
reaching the limit. Thus, the option of limiting the annual number of 
FAD sets would likely result in the mandated limit for 2013 being 
exceeded, and the United States would have failed to satisfy its 
international obligations with respect to the purse seine provisions of 
CMM 2012-01. Because the option of limiting the number of annual FAD 
sets would be infeasible to implement, and the United States would 
consequently fail to satisfy its international obligations under the 
Convention, this option is not considered in detail. Thus, this 
proposed rule would implement the first of the two options: an 
additional month, in October, of the FAD closure period. Again, this 
would be in addition to the three-month FAD prohibition period of July-
September.
    This proposed rule would maintain many of the same specific FAD-
related restrictions during the FAD prohibition periods as those 
established in the 2009 rule, but to ensure the full effect to the 
prohibition on FAD setting during the FAD prohibition periods, the 
definition of FAD would be modified, a new prohibition would be added, 
and another prohibition would be modified to clarify already prohibited 
activities.
    The 2009 rule defined a FAD to mean 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 objects used for that purpose that are situated on board a vessel 
or otherwise out of the water (see 74 FR 38544). The definition of FAD 
also specified that it did not include a fishing vessel, provided that 
the fishing vessel was not used for the purpose of aggregating fish. 
The 2009 rule included the following prohibitions during the FAD 
prohibition periods: (1) Setting a purse seine around a FAD or within 
one nautical mile of a FAD; (2) setting a purse seine in a manner 
intended to capture fish that have aggregated in association with a 
FAD, such as by setting the purse seine in an area from which a FAD 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; (3) 
deploying a FAD into the water; and (4) repairing, cleaning, 
maintaining, or otherwise servicing a FAD, including any electronic 
equipment used in association with a FAD, in the water or on a vessel 
while at sea. The fourth prohibition, regarding the servicing of FADs, 
had the following exceptions: (a) A FAD could be inspected and handled 
as needed to identify the owner of 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 could be removed 
from the water and if removed may be cleaned, provided that it is not 
returned to the water.
    This proposed rule would change the definition of a FAD and the 
specific prohibitions established in the 2009 rule in two main 
respects. First, the regulatory text would emphasize that setting on 
fish that have aggregated in association with a vessel when a vessel

[[Page 14758]]

has used lights to aggregate, move or hold fish is prohibited during 
the FAD prohibition period. Setting in such a manner was already 
prohibited under the 2009 rule, as it was prohibited to set on fish 
aggregated in association with a vessel if the vessel was used to 
aggregate fish. This proposed rule would amplify that prohibition by 
explicitly prohibiting the use of lights in specific manners that are 
known to be used to aggregate fish. These prohibitions would include 
submerging lights under water from, or suspending or hanging lights 
over the side of, a purse seine vessel or associated skiffs, other 
watercraft or equipment; and directing lights into the water or using 
lights in a manner other than as needed to illuminate the deck of the 
purse seine vessel or associated skiffs, other watercraft or equipment, 
to comply with navigational requirements, and to ensure the health and 
safety of the crew. These light-related prohibitions would not apply in 
specific emergency situations. Second, the prohibitions would be 
expanded to address the fish aggregating properties of fishing vessels. 
Like other floating objects, fishing vessels tend to aggregate fish. In 
order to give better effect to CMM 2012-01's aim of eliminating fishing 
on schools associated with floating objects during specified months of 
the year, during the FAD prohibition period this proposed rule would 
prohibit setting a purse seine in a manner intended to capture fish 
that have aggregated in association with a vessel. For example, it 
would be prohibited to set a purse seine in an area from which a vessel 
has been moved or removed within the previous eight hours, or to set a 
purse seine in an area into which fish were drawn by a vessel from the 
vicinity of a vessel. Thus, vessels would be treated like FADs with 
respect to some of the prohibited activities. But since vessels would 
not be treated like FADs with respect to the prohibitions on deploying 
and servicing FADs, the definition of FAD would not include vessels. A 
FAD would be defined to mean 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, but not including a vessel.

(3) Observer Requirements

    CMM 2012-01 includes two observer provisions applicable to purse 
seine vessels. The first calls for each flag CCM to require that its 
purse seine vessels fishing in the Convention Area between the 
latitudes of 20[deg] North and 20[deg] South carry observers authorized 
under the WCPFC Regional Observer Programme (hereafter ``WCPFC 
observers''). This applies to vessels fishing on the high seas, on the 
high seas and in waters under the jurisdiction of at least one coastal 
State, or in waters under the jurisdiction of at least two coastal 
States. In other words, it does not apply to vessels fishing 
exclusively within the jurisdiction of a single coastal State. The 
CMM's second observer provision calls for each coastal CCM to require 
that all purse seine vessels--that is, purse seine vessels of any 
flag--fishing in the Convention Area between the latitudes of 20[deg] 
North and 20[deg] South solely within the jurisdiction of the coastal 
CCM carry an observer (not necessarily a WCPFC observer).
    The first of these two observer provisions was included in similar 
form in CMM 2008-01 and implemented in the 2009 rule. It would be 
implemented in a similar fashion in this proposed rule, with one 
notable difference. The 2009 rule included an exception for fishing 
trips for which the NMFS Pacific Islands Regional Administrator has 
determined that a WCPFC observer is not available, provided that 
written documentation of such determination is carried on board the 
vessel during the entirety of the fishing trip. This exception was 
included in that rule because at that time it was not clear whether the 
observer programs in the region would be able to provide observers on 
all the required fishing trips made by U.S. purse seine vessels. Given 
that the Pacific Islands Forum Fisheries Agency observer program has 
deployed observers on all fishing trips by the U.S. WCPO purse seine 
fleet for more than three years, NMFS no longer believes that this 
exception is needed, and it is not included in this proposed rule.
    CMM 2012-01's second provision, which is an obligation of coastal 
States with respect to waters under their jurisdiction, was not 
included in CMM 2008-01 and thus not included in the 2009 rule. 
Currently, no foreign purse seine fishing vessels are authorized to 
fish in the U.S. EEZ in the Convention Area, and no such authorizations 
are foreseeable during the duration of this proposed rule. Should a 
foreign vessel be authorized to fish in the U.S. EEZ, a requirement 
that the vessel carry an observer could be included as one of the terms 
of that authorization. Therefore, NMFS does not see any need to include 
a requirement in this proposed rule that foreign purse seine vessels 
that fish in the U.S. EEZ must carry observers, and this proposed rule 
does not include such a requirement. Thus, the CMM's second observer 
provision would be implemented only for U.S. purse seine vessels. 
Unlike the CMM's first observer provision, the second provision does 
not specify that the required observers must be WCPFC observers. 
However, NMFS has identified only two observer programs that would be 
used as sources of observers to satisfy this requirement--the Pacific 
Islands Forum Fisheries Agency observer program and the NMFS observer 
program. Currently, both these programs are authorized by the WCPFC as 
part of its Regional Observer Programme, so observers deployed by these 
two programs are WCPFC observers. Thus, this proposed rule would 
require that WCPFC observers be carried by U.S. purse seine vessels 
when fishing solely within the U.S. EEZ.
    As described above, this proposed rule would not require U.S. purse 
seine vessels to carry observers when fishing exclusively in water 
under the jurisdiction of a single foreign nation. However, in that 
situation, the foreign nation might have its own observer requirements 
that apply to the U.S. vessel. Furthermore, U.S. regulations at 50 CFR 
300.214 require that if a U.S. fishing vessel with a WCPFC Area 
Endorsement or for which a WCPFC Area Endorsement is required is used 
for fishing for HMS in the Convention Area in areas under the 
jurisdiction of a CCM other than the United States, the owner and 
operator of the vessel must ensure that the vessel is operated in 
compliance with the applicable laws of such CCM, including any laws 
related to carrying observers.

Summary of Proposed Action

(1) Fishing Effort Limits

    This proposed rule would establish for U.S. purse seine vessels a 
limit of 2,588 fishing days for each of 2013 and 2014, applicable in 
the ELAPS, which would be defined to include all areas of high seas and 
the U.S. EEZ within the Convention Area between the latitudes of 
20[deg] North and 20[deg] South, and would not include the territorial 
sea as in the 2009 rule and 2011 rule. Once NMFS determines during 
either of those years that, based on available information, the 
applicable limit is expected to be reached by a specific future date, 
NMFS would issue a notice announcing the closure of the U.S. purse 
seine fishery in the ELAPS starting on that specific future date. Upon 
such closure, it would be prohibited to use a U.S. purse seine vessel 
to fish in the ELAPS through the end of the calendar year. NMFS would 
publish the notice at least seven calendar days before the effective 
date

[[Page 14759]]

of the closure to provide fishermen advance notice of the closure.

(2) FAD Restrictions

    This proposed rule would establish FAD prohibition periods from 
July 1 through October 31 in 2013 and in 2014, during which it would be 
prohibited for U.S. fishing vessels to set purse seines on FADs or to 
engage in specific other FAD-related activities in the Convention Area 
between the latitudes of 20[deg] North and 20[deg] South.

(3) Observer Requirements

    This proposed rule would require that U.S. purse seine vessels 
carry WCPFC observers on all fishing trips in the Convention Area, 
except fishing trips that occur entirely outside the area bounded by 
20[deg] North and 20[deg] South latitude or entirely within waters of 
single foreign nation.
    In addition to establishing the three sets of requirements 
described above, this proposed rule would revise paragraph (c) of 50 
CFR 300.223, which relates to areas closed to purse seine fishing. The 
requirements in that paragraph, which implemented the purse seine 
closed area provisions of CMM 2008-01, expired December 31, 2012. Under 
this proposed rule the contents of that paragraph would be removed and 
the paragraph would be reserved. Because the requirements in that 
paragraph have expired, this revision is merely of a housekeeping 
nature.

Classification

    The Administrator, Pacific Islands Region, NMFS, has determined 
that this proposed rule is consistent with the WCPFC Implementation Act 
and other applicable laws, subject to further consideration after 
public comment.

Executive Order 12866

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

Regulatory Flexibility Act (RFA)

    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the RFA. The IRFA describes the economic 
impact this proposed rule, if adopted, would have on small entities. A 
description of the action, why it is being considered, and the legal 
basis for this action are contained in the SUMMARY section of the 
preamble and in other sections of this SUPPLEMENTARY INFORMATION 
section of the preamble. The analysis follows:
    There would be no disproportionate economic impacts between small 
and large entities operating vessels as a result of this proposed rule. 
Furthermore, there would be no disproportionate economic impacts based 
on vessel size, gear, or homeport.

Estimated Number of Small Entities Affected

    The proposed rule would 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 SPTT. The current 
number of licensed vessels is 40, which is 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 financial information 
available on the purse seine fleet, including the fleet's total 
landings in 2010 and average cannery prices for tuna species in that 
year, most or all of the businesses that operate vessels in the fleet 
are large entities as defined by the RFA. However, it is possible that 
one or a few of these fish harvesting businesses meet the criteria for 
small entities (i.e., they are independently owned and operated and not 
dominant in their fields of operation, and have annual receipts of no 
more than $4.0 million), so the purse seine fleet is included in this 
analysis.

Recordkeeping, Reporting, and Other Compliance Requirements

    The proposed rule would not establish any new reporting or 
recordkeeping requirements (within the meaning of the Paperwork 
Reduction Act). Affected vessel owners and operators would have to 
comply with all the proposed requirements, as described earlier in the 
SUPPLEMENTARY INFORMATION section of the preamble. Fulfillment of these 
requirements is not expected to require any professional skills that 
the affected vessel owners and operators do not already possess. The 
costs of complying with the proposed requirements are described below 
to the extent possible for each of the three elements of the proposed 
rule:
    (1) Fishing Effort Limits: If and when the fishery in the U.S. EEZ 
and on the high seas (i.e., in the ELAPS) is closed as a result of the 
established annual effort limit being reached in either of 2013 or 
2014, owners and operators of purse seine vessels would have to cease 
fishing in that area for the remainder of the calendar year. Closure of 
the fishery in the ELAPS could cause foregone fishing opportunities and 
associated economic losses if the ELAPS contains preferred fishing 
grounds during such a closure. The likelihood of the fishery being 
closed in the ELAPS in either of the two years and the economic losses 
a closure would bring cannot be estimated with certainty. Recent 
fishing patterns (2005 through 2010) suggest a fairly low likelihood of 
the fishery being closed in the ELAPS. Among the six years in that 
period, there was only one year, 2005, in which the fleet (extrapolated 
to a hypothetical 40-vessel fleet, the expected fleet size for the 
foreseeable future) spent 2,588 fishing days in the ELAPS (in 2005, the 
15-vessel fleet spent 985 fishing days in the ELAPS, equivalent to 40 
vessels spending 2,628 fishing days). Thus, the likelihood of the limit 
being reached appears to be fairly low, and the duration of any closure 
would likely be relatively brief. However, there is considerable inter-
annual variation in the fleet's spatial distribution of fishing effort, 
influenced to some extent by oceanic conditions associated with El 
Ni[ntilde]o-Southern Oscillation (ENSO) patterns. The eastern areas of 
the WCPO have tended to be comparatively more attractive to the fleet 
during El Ni[ntilde]o events, when warm water spreads from the western 
Pacific to the eastern Pacific and large, valuable yellowfin tuna 
become more vulnerable to purse seine fishing. Consequently, the U.S. 
EEZ and portions of the high seas within the Convention Area are 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).
    The ELAPS constitutes a relatively small portion of the WCPO 
fishing grounds available to, and typically used by, the U.S. purse 
seine fleet. Unpublished NMFS data indicate that, on average, during 
1997 through 2010, annual fishing effort in the ELAPS, in terms of 
vessel-days fished, made up about 27 percent of the fleet's annual 
total. The percentages among those years ranged from 6 to 40. In the 
event of a closure, affected vessels could continue to fish in the 
Convention Area in foreign EEZs, to the extent authorized. Given that 
foreign EEZs in the Convention Area have collectively received the 
majority of the U.S. purse seine fleet's fishing effort (60 to 94 
percent in the years 1997-2010), the costs associated with being 
limited to such areas for what would likely be a relatively small 
portion of the year would likely not be substantial. Nonetheless, the 
closure of any fishing grounds for any amount of time would be expected 
to bring costs to affected entities (e.g., because revenues per unit of 
fishing effort in the open area might, during the closed period, be 
lower than in the closed area, and vessels might use

[[Page 14760]]

more fuel and spend more time having to travel to open areas). As 
indicated in the preceding paragraph, the magnitude of the losses would 
depend on where the best fishing grounds are during the closed period, 
which would likely be dependent in part on ENSO-related conditions. If 
the ELAPS is a preferred fishing ground during the closure, then the 
losses would be accordingly greater than if the ELAPS is not preferred 
relative to other fishing grounds.
    The effort limit could also affect the temporal distribution of 
fishing effort in the U.S. purse seine fishery. Given that the limit 
would be competitive--that is, not allocated among individual vessels--
vessel operators might have an incentive to fish harder in the affected 
area earlier in a given year than they otherwise would. 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 shifts occur, they 
could affect the seasonal timing of fish catches and deliveries to 
canneries. If deliveries from the fleet were substantially concentrated 
early in the year, it could adversely affect prices during that period. 
However, as discussed in the preceding paragraphs, the majority of 
fishing effort is expected to occur outside the area subject to the 
proposed limit, so the intensity of any race-to-fish is likely to be 
low if it occurs at all, and the timing of catches and deliveries would 
likely not be appreciably impacted. Furthermore, the timing of cannery 
deliveries by the U.S. fleet alone is unlikely to have an appreciable 
impact on prices, since many canneries buy from the fleets of multiple 
nations. A race to fish could bring costs to affected entities if it 
causes vessel operators to forego vessel maintenance or to fish in 
weather or ocean conditions that it 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. For the reasons stated above, 
any such costs are expected to be minor. In addition, there is no 
evidence that economies of scale would favor larger vessels or 
businesses over smaller ones, or vice versa, if the fleet's fishing 
effort is constrained by these limits.
    (2) FAD Restrictions: The prohibitions on setting on FADs and on 
fish aggregating in association with fishing vessels (collectively 
called ``FAD restrictions'') in July through October in each of 2013 
and 2014 would substantially constrain the manner in which purse seine 
fishing could be conducted during those periods. The costs associated 
with these constraints cannot be quantitatively estimated, but the 
fleet's historical use of FADs can help give a qualitative indication 
of the costs. The data on FAD sets presented below do not include sets 
made on fish aggregating in association with fishing vessels, but the 
number of the latter type of sets is small. According to logbooks 
maintained by vessel operators, sets on fish aggregating in association 
with vessels averaged about four per year for the entire fleet from 
1997 through 2010 (examination by NMFS of observer data from selected 
years indicates a somewhat higher number than the number reported by 
vessel operators, so vessel logbook data might underestimate the actual 
number, but the number is still small in comparison to FAD sets). Thus, 
the data on FAD sets provide useful indicators of the fleet's 
historical fishing patterns with respect to the broader types of sets 
that would be prohibited under the proposed rule. In the years 1997-
2010, the proportion of sets made on FADs in the U.S. purse seine 
fishery ranged from less than 30 percent in some years to more than 90 
percent in others. The importance of FAD sets in terms of vessel 
revenues, and in turn profits, appears to be quite variable over time, 
and is probably a function of many factors, including fuel prices 
(e.g., 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). Thus, the costs of complying 
with the FAD restrictions would depend on a variety of factors. The 
fleet's experience during 2009-2012, when two- and three-month FAD 
prohibition periods were in place, should give an indication of what 
would be expected to occur under the proposed four-month FAD 
prohibition periods. The numbers of FAD sets during the prohibition 
periods were close to zero, but the number of FAD sets across each of 
the four entire years appears not to have been strongly impacted. That 
impact is difficult to evaluate in part because there is so much inter-
annual variability in the use of FADs. The proportions of all sets that 
were made on FADs in 2009 and 2010 were lower than the average over the 
previous 12 years (2010 is the last year for which complete data on set 
types are available). The proportion in 2009 was within the historical 
range, while that in 2010 was the lowest during the entire period.
    Although it is not possible to quantitatively estimate the costs 
that affected entities would bear as a result of the FAD prohibition 
periods, the fact that the fleet has made a relatively large portion of 
its sets on FADs suggests that prohibiting the use of FADs for four 
months each year may bring substantial costs and/or revenue losses. To 
help mitigate those costs, vessel operators might choose to schedule 
their routine vessel maintenance during the FAD prohibition periods. It 
also is conceivable that some might choose not to fish at all during 
the prohibition periods rather than fish without the use of FADs. 
Observations of the fleet's behavior in 2009-2012 do not suggest that 
either of these responses occurred to an appreciable degree. The 
proportion of the fleet that fished during the two- and three-month FAD 
prohibition periods of 2009-2012 did not appreciably differ from the 
proportion that fished during the same months in the years 1997-2008, 
when no FAD prohibition periods were in place.
    (3) Observer Requirements: The requirement to carry a WCPFC 
observer on all fishing trips in the Convention Area between the 
latitudes of 20[deg] North and 20[deg] South would not bring any 
compliance costs to affected entities that are not already being borne 
under existing requirements. Under regulations at 50 CFR 300.215, U.S. 
fishing vessels with WCPFC Area Endorsements (which all vessels in the 
WCPO U.S. purse seine fleet currently have and are expected to continue 
to have) must carry a WCPFC observer whenever directed to do so by 
NMFS. Under that authority, NMFS has directed all U.S. purse seine 
fishing vessels to carry WCPFC observers on all fishing trips in the 
Convention Area; this directive is in effect from January 1 through 
December 31, 2013. The proposed observer requirements differ from those 
already in effect under 50 CFR 300.215 in that the latter apply to all 
fishing trips in the Convention Area while this proposed rule exempts 
fishing trips that take place exclusively within areas under the 
jurisdiction of a single foreign nation or exclusively outside the area 
bounded by 20[deg] North and 20[deg] South latitude. The proposed 
requirements are therefore slightly less constraining than the existing 
requirements (but in practice few trips in either of the two exemption 
categories are expected to be taken). Thus, the observer requirements 
in this proposed rule would not bring any costs over and above those 
already incurred

[[Page 14761]]

under existing requirements. A similar requirement to carry WCPFC 
observers on all fishing trips in the Convention Area, with specific 
exceptions, was also established in the 2009 rule. That requirement 
expired December 31, 2012. In the IRFA and final regulatory flexibility 
analysis (FRFA) prepared for the 2009 rule, the cost to purse seine 
vessels of having to carry a WCPFC observer on every fishing trip in 
the Convention Area (i.e., to carry a WCPFC observer on the 80 percent 
of trips that would be required over the 20-percent coverage already 
required under the SPTT, as discussed below) was estimated to be up to 
about $31,300 to $39,100 per vessel per year (in 2009 dollars).

Duplicating, Overlapping, and Conflicting Federal Regulations

    NMFS has not identified any Federal regulations that duplicate, 
overlap with, or conflict with the proposed regulations, with the 
exception of the proposed observer requirements. As noted above, under 
regulations at 50 CFR 300.215, issued under authority of the WCPFC 
Implementation Act, U.S. fishing vessels with WCPFC Area Endorsements 
are required to carry WCPFC observers when directed to do so by NMFS. 
Additionally, U.S. purse seine vessels are subject to observer 
requirements under authority of the South Pacific Tuna Act of 1988 
(SPTA; 16 U.S.C. 973-973r), at 50 CFR 300.43. These regulations require 
that operators and crew members of vessels operating pursuant to the 
SPTT allow and assist any person identified as an observer by the 
Pacific Island Parties to the SPTT to board the vessel and conduct and 
perform specified observer functions. Under the terms of the SPTT, U.S. 
purse seine vessels carry such observers on approximately 20 percent of 
their trips. The proposed observer requirement would overlap with the 
existing regulations at 50 CFR 300.215 in that carrying an observer 
during a given fishing trip under either requirement would satisfy the 
other requirement if it applies to that fishing trip. Similarly, the 
proposed requirement would overlap with the existing regulations at 50 
CFR 300.43 in that carrying an observer under the latter regulation 
would satisfy the proposed requirement. The proposed requirement would 
not duplicate (e.g., the overlapping observer requirements would not 
result in a vessel having to carry two observers on a fishing trip) or 
conflict with existing regulations.

Alternatives to the Proposed Rule

    NMFS has identified and considered several alternatives to the 
proposed rule, in addition to the no-action alternative. The action 
alternatives are limited to the ways in which the fishing effort limits 
and the FAD restrictions would be implemented; no alternatives other 
than the no-action alternative were identified for the observer 
requirements in the proposed rule.
    (1) Fishing Effort Limits: NMFS has considered in depth two 
alternatives to the proposed fleet-wide limit of 2,588 fishing days per 
year in the ELAPS. One alternative would be more restrictive, with 
separate fleet-wide annual limits in the U.S. EEZ and the high seas in 
the Convention Area. The limits would be based on the respective levels 
of the fleet's fishing effort in those two areas in 2010, which were 
the lowest levels of fishing effort on a per-vessel basis from 1997 
through 2010 (this time period was used to maintain consistency with 
the approach used to calculate the similar limits for the 2009 rule). 
The limits would be 27 fishing days per year in the U.S. EEZ and 433 
fishing days per year on the high seas. These limits would be much more 
constraining than the proposed limits, and their separation into two 
areas would provide less operational flexibility for affected purse 
seine vessels. Thus, these alternative limits would be substantially 
more constraining and thus more costly than the proposed limits, and 
this alternative is not preferred for that reason. The second 
alternative would be less restrictive than the limits proposed in the 
rule. The high seas and the U.S. EEZ would be combined for the purpose 
of the limit, and the limit would be the sum of the fleet's respective 
greatest annual levels of fishing effort in each of the two areas (on 
an average per-vessel basis, then expanded to a 40-vessel-equivalent) 
during the 1997-2010 time period. The limit would be 3,943 fishing days 
per year in the ELAPS. Because this alternative limit is greater and 
thus less constraining than the proposed limit, the costs of complying 
with this alternative would be less than or equal to those of the 
proposed limits. This alternative is not preferred because it would 
depart from the effort limits established for the period 2009-2012. The 
limits proposed in this rule are consistent with the precedent set by 
the 2009 rule, and affected entities have already been exposed to the 
impacts of these limits for the past four years. In the RFA analysis 
for the 2009 rule, NMFS considered an alternative that would allocate 
the fishing effort limits among individual purse seine vessels in some 
manner. Given the complexity of setting up such an allocation scheme, 
which would require consideration of such things as which entities are 
to receive allocations, the criteria for making allocations, and 
whether and how the allocations would be transferable, as well as a 
mechanism to reliably monitor the fishing effort of the individual 
entities, NMFS does not believe it feasible to develop such an 
allocation scheme for this proposed rule, and thus has not considered 
it in depth. NMFS notes, however, that as found in the RFA analysis for 
the 2009 rule, such an alternative would likely alleviate any adverse 
impacts of the race-to-fish that might occur as a result of 
establishing the competitive fishing effort limits as in the proposed 
rule. Those impacts, however, are expected to be minor. The alternative 
of taking no action at all is not preferred because it would fail to 
accomplish the objective of the WCPFC Implementation Act or satisfy the 
international obligations of the United States as a Contracting Party 
to the Convention.
    (2) FAD Restrictions: NMFS has considered one alternative to the 
proposed FAD restrictions. This alternative would be the same as the 
proposed restrictions except that it would not be prohibited to set on 
fish that have aggregated in association with a vessel (provided that 
the vessel is not used in a manner to aggregate fish). This would be 
less restrictive and thus presumably less costly to affected purse 
seine fishing businesses than the proposed requirements. The number of 
such sets made historically has been relatively small, averaging about 
four per year for the entire fleet from 1997 through 2010, according to 
data recorded by vessel operators in logbooks (examination by NMFS of 
observer data from selected years indicates a somewhat higher number 
than the number reported by vessel operators, so vessel logbook data 
might underestimate the actual number, but the number is still small in 
comparison to FAD sets). Therefore, the degree of relief in compliance 
costs of allowing such sets for four months each year would be expected 
to be relatively small. NMFS believes that this alternative would not 
serve CMM 2012-01's objective of reducing the fishing mortality rates 
of bigeye tuna and young tunas through seasonal prohibitions on the use 
of FADs as well as would the proposed rule. For that reason, this 
alternative is not preferred. The alternative of taking no action at 
all is not preferred because it would fail to accomplish the objective 
of the WCPFC Implementation Act or

[[Page 14762]]

satisfy the international obligations of the United States as a 
Contracting Party to the Convention.

List of Subjects in 50 CFR Part 300

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

    Dated: March 4, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

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

PART 300--INTERNATIONAL FISHERIES REGULATIONS

0
1. The authority citation for 50 CFR part 300, subpart O, continues to 
read as follows:

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

0
2. In Sec.  300.211, the definitions of ``Effort Limit Area for Purse 
Seine or ELAPS'', and ``Fish aggregating device'', or ``FAD'', are 
revised to read as follows:


Sec.  300.211  Definitions.

* * * * *
    Effort Limit Area for Purse Seine, or ELAPS, means, within the area 
between 20[deg] N. latitude and 20[deg] S. latitude, areas within the 
Convention Area that either are high seas or within the EEZ.
    Fish aggregating device, or FAD, means 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.
* * * * *
0
3. In Sec.  300.223, introductory text to the section, paragraph (a) 
introductory text and paragraph (a)(1), paragraphs (b) and (c), and 
paragraph (e) introductory text and paragraphs (e)(1) and (e)(2) are 
revised to read as follows:


Sec.  300.223  Purse seine fishing restrictions.

    None of the requirements of this section apply in the territorial 
seas or archipelagic waters of the United States or any other nation, 
as defined by the domestic laws and regulations of that nation and 
recognized by the United States. All dates used in this section are in 
Universal Coordinated Time, also known as UTC; for example: the year 
2013 starts at 00:00 on January 1, 2013 UTC and ends at 24:00 on 
December 31, 2013 UTC; and July 1, 2013, begins at 00:00 UTC and ends 
at 24:00 UTC.
    (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 collectively spend in the ELAPS.
    (1) For each of the calendar years 2013 and 2014 there is a limit 
of 2,588 fishing days.
* * * * *
    (b) Use of fish aggregating devices. From July 1 through October 
31, 2013, and from July 1 through October 31, 2014, owners, operators, 
and crew of fishing vessels of the United States 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:
    (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, 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.
    (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:
    (i) 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
    (ii) A FAD may be removed from the water and if removed may be 
cleaned, provided that it is not returned to the water.
    (5) 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:
    (i) Submerge lights under water;
    (ii) Suspend or hang lights over the side of the purse seine 
vessel, skiff, watercraft or equipment, or;
    (iii) 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.
    (c) Closed areas. [Reserved]
* * * * *
    (e) Observer coverage. Until 24:00 UTC on December 31, 2014, a 
fishing vessel of the United States may not be used to fish with purse 
seine gear in the Convention Area without a WCPFC observer on board. 
This requirement does not apply to fishing trips that meet either of 
the following conditions:
    (1) The portion of the fishing trip within the Convention Area 
takes place entirely within areas under jurisdiction of a single nation 
other than the United States.
    (2) No fishing takes place during the fishing trip in the 
Convention Area in the area between 20[deg] N. latitude and 20[deg] S. 
latitude.
* * * * *
[FR Doc. 2013-05330 Filed 3-6-13; 8:45 am]
BILLING CODE 3510-22-P