[Federal Register Volume 80, Number 205 (Friday, October 23, 2015)]
[Proposed Rules]
[Pages 64382-64384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26968]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 150929898-5951-01]
RIN 0648-XE001; 0648-BF41


International Fisheries; Western and Central Pacific Fisheries 
for Highly Migratory Species; Treatment of U.S. Purse Seine Fishing 
With Respect to U.S. Territories

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

ACTION: Notice of decision on petition for rulemaking; advance notice 
of proposed rulemaking; request for comments.

-----------------------------------------------------------------------

SUMMARY: This document includes two distinct but related NMFS actions. 
First, NMFS announces that it has denied a petition for rulemaking from 
Tri Marine Management Company, LLC, related to purse seine fishing 
effort limits in the area of competence of the Commission for the 
Conservation and Management of Highly Migratory Fish Stocks in the 
Western and Central Pacific Ocean (Commission). Second, NMFS issues an 
advance notice of proposed rulemaking related to the treatment of U.S.-
flagged purse seine vessels and their fishing activities in regulations 
implementing decisions of the Commission.

DATES: Comments on this advance notice of proposed rulemaking must be 
submitted in writing by November 23, 2015.

ADDRESSES: The notice of receipt of the petition for rulemaking, the 
petition, and the public comments on the petition are available via the 
Federal e-Rulemaking Portal at www.regulations.gov (search for Docket 
ID NOAA-NMFS-2015-0088).
    NMFS is not requesting comments on the notice of decision on the 
petition.
    You may submit comments on the advance notice of proposed 
rulemaking, identified by NOAA-NMFS-2015-0128, by either of the 
following methods:
     Electronic submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal.
    1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0128,
    2. Click the ``Comment Now!'' icon, complete the required fields, 
and
    3. Enter or attach your comments.

- OR -

     Mail: Submit written comments to Michael D. Tosatto, 
Regional Administrator, NMFS, Pacific Islands Regional Office (PIRO), 
1845 Wasp Blvd., Building 176, Honolulu, HI 96818.
    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).

FOR FURTHER INFORMATION CONTACT: Tom Graham, NMFS PIRO, 808-725-5032.

SUPPLEMENTARY INFORMATION: 

Background on the Convention

    The Convention on the Conservation and Management of Highly 
Migratory Fish Stocks in the Western and Central Pacific Ocean 
(Convention) focuses on the conservation and management of highly 
migratory species (HMS) and the management of fisheries for HMS. The 
objective of the Convention is to ensure, through effective management, 
the long-term conservation and sustainable use of HMS in the WCPO. To 
accomplish this objective, the Convention established the Commission, 
which includes Members, Cooperating Non-members, and Participating 
Territories. The United States of America is a Member. American Samoa, 
Guam, and the Commonwealth of the Northern Mariana Islands are 
Participating Territories.
    As a Contracting Party to the Convention and a Member of the 
Commission, the United States implements domestically conservation and 
management measures adopted by the Commission and other decisions of 
the Commission. The Western and Central Pacific Fisheries Convention 
Implementation Act (16 U.S.C. 6901 et seq.; WCPFC Implementation Act), 
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 WCPFC Implementation Act 
further provides that the Secretary of Commerce shall ensure 
consistency, to the extent practicable, of fishery management programs 
administered under the WCPFC Implementation Act and the Magnuson-
Stevens Fishery Conservation and Management Act (MSA; 16 U.S.C. 1801 et 
seq.), as well as other specific laws (see 16 U.S.C. 6905(b)). The 
Secretary of Commerce has delegated the authority to promulgate 
regulations 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 WCPO, can be found on the 
WCPFC Web site at: www.wcpfc.int/doc/convention-area-map.

Background on Purse Seine Fishing Effort Limits in the Convention Area

    Since 2009, NMFS regulations have established limits on fishing 
effort by U.S. purse seine fishing vessels in the area of application 
of the Convention (Convention Area), including in the area known as the 
Effort Limit Area for Purse Seine, or ELAPS, which is comprised of all 
areas of high seas and the U.S. exclusive economic zone (EEZ) between 
the latitudes of 20[deg] N. and 20[deg] S. in the Convention Area. 
These regulations are promulgated under authority of the WCPFC 
Implementation Act and have been codified at 50 CFR 300.223(a).
    NMFS has established the purse seine fishing effort limits in the 
ELAPS to implement a series of Commission decisions for tropical tuna 
stocks in the Convention Area.
    NMFS established a purse seine fishing effort limit in the ELAPS 
for 2015 in an interim rule published May 21, 2015 (80 FR 29220). NMFS 
issued a final rule, responding to comments on the interim rule and 
making final the interim rule, on August 25, 2015 (80 FR 51476). The 
limit is 1,828 fishing days.
    On June 8, 2015, NMFS issued a notice announcing that the U.S. 
purse seine fishery in the ELAPS would close as a result of reaching 
the limit of 1,828 fishing days (80 FR 32313). The closure took effect 
June 15, 2015, and will remain in effect through December 31, 2015. The 
closure applies to all U.S. purse seine fishing vessels. During the 
closure, fishing vessels of the United

[[Page 64383]]

States equipped with purse seine gear may not be used to fish in the 
ELAPS.

Petition for Rulemaking

    Under the Administrative Procedure Act, interested persons may 
petition Federal agencies for the issuance, amendment, or repeal of a 
rule.
    As described further below, NMFS received such a petition from Tri 
Marine Management Company, LLC (Tri Marine). On July 17, 2015, NMFS 
issued a notice of receipt of the petition and a request for comments 
on the petition (80 FR 42464). The comment period ended August 17, 
2015.

The Petition

    In a petition dated May 12, 2015, Tri Marine requested that NMFS 
take two actions. First, Tri Marine requested that ``NOAA undertake an 
emergency rulemaking with respect to the 2015 ELAPS limits for fishing 
days on the high seas.'' Second, Tri Marine requested that ``NOAA issue 
a rule exempting from that high seas limit any US flag purse seine 
vessel which, pursuant to contract or declaration of intent, delivers 
or will deliver at least 50 percent of its catch to tuna processing 
facilities based in American Samoa.''
    At the time of Tri Marine's initial request, NMFS was preparing to 
issue an interim rule establishing a limit on purse seine fishing 
effort in the ELAPS for 2015. As described above, NMFS established a 
limit in the ELAPS for 2015 in an interim rule published May 21, 2015. 
Accordingly, the first part of Tri Marine's request has been fully 
addressed and is not further discussed in this notice. NMFS 
acknowledged that it had received Tri Marine's petition for rulemaking 
in the May 21, 2015, interim rule, and stated that it would consider 
and respond to the petition separately.
    With regard to the second part of Tri Marine's request, the 
petition explains that as a result of decisions by the Republic of 
Kiribati, U.S. purse seine vessels' access to their traditional fishing 
grounds in 2015 has been dramatically reduced, and that the high seas 
portion of the ELAPS can be expected to be closed to fishing as early 
as June. The petition further states that because of the limited 
fishing grounds now available to the American Samoa-based purse seine 
fleet and other factors, including an unusually low tuna price and the 
higher cost of access to fishing grounds in the region, the ability of 
American Samoa-based tuna vessels to operate profitably is in serious 
question, and the loss of a reliable supply of tuna from these vessels 
will jeopardize the ability of the canneries in American Samoa to 
compete in world markets. The petition states that under the 
Convention, American Samoa is afforded special treatment as a small 
island developing state or participating territory for purposes of 
applying conservation and management measures of the Commission, and 
therefore NMFS should develop rules that exempt from the ELAPS limit 
those vessels that deliver at least 50 percent of their catch to the 
canneries in American Samoa.
    The petition includes further information on the basis of the 
request, including information related to the recommendations of the 
Governor of American Samoa's Fisheries Task Force, and an ``issue 
brief'' with statements about the nature of the issue and how the 
requested rule(s) would address it.
    In a second letter to NMFS dated May 26, 2015, which supplements 
the May 12, 2015, petition, Tri Marine acknowledged the interim rule 
published May 21, 2015, and amended its request to include the U.S. 
EEZ. Tri Marine requested that ``NOAA undertake an emergency rulemaking 
with respect to the 2015 ELAPS limits for fishing days (both) on the 
high seas and in the US EEZ,'' and further requested that ``NOAA issue 
a rule exempting from the ELAPS limits any US flag purse seine vessel 
which, pursuant to contract or declaration of intent, delivers or will 
deliver at least 50 percent of its catch to tuna processing facilities 
based in American Samoa.''

Public Comments on the Petition

    NMFS received comments on the petition from about 100 parties, 
including individuals employed in fish processing facilities in 
American Samoa and their families and friends; owners, operators and 
crew members of U.S. purse seine vessels; owners and operators of fish 
processing facilities in American Samoa; other businesses doing 
business in American Samoa; non-governmental organizations; and 
government officials of American Samoa and the United States. Most 
comments were in favor of the petition. Those in favor cited what they 
believed are adverse economic impacts of the 2015 ELAPS limit on purse 
seine fishing businesses, on fish processing facilities and other 
businesses in American Samoa, on employment in those businesses, and on 
the American Samoa economy in general. The comments in opposition to 
the petition argued that the requested action would unfairly favor 
certain businesses in the U.S. purse seine fishery over others and 
would be inconsistent with the Convention and the decisions of the 
Commission.

Decision on the Petition

    After considering the petition and the public comments on the 
petition, NMFS finds that it is not appropriate to grant the 
petitioner's request to issue a rule exempting from the 2015 ELAPS 
limit any U.S.-flagged purse seine vessel which, pursuant to contract 
or declaration of intent, delivers or will deliver at least 50 percent 
of its catch to tuna processing facilities based in American Samoa. As 
described in the regulatory impact review prepared for the rule to 
establish the 2015 ELAPS limit, NMFS found that the limit is expected 
to have substantial adverse economic impacts on U.S. purse seine 
fishing businesses in the WCPO, and also that adverse impacts in terms 
of income and employment could occur in business sectors with backward 
and forward linkages to the producers. These sectors could include 
businesses that supply the purse seine fishing vessels, and the fish 
processing facilities in American Samoa. However, to sufficiently 
assess whether such impacts, or other circumstances, warrant the 
regulatory action requested by the petition would require additional 
information that is not readily available to NMFS, as well as 
sufficient time to examine such information. In particular, NMFS does 
not have information that demonstrates that the 2015 ELAPS limit will 
adversely impact American Samoa's fish processing facilities and its 
economy in the manner alleged by the petitioner. The petitioner argues 
that lacking the requested regulatory action, the ability of the 
American Samoa-based purse seine fleet to operate profitably would be 
in serious question, and the loss of a reliable supply of tuna from 
those vessels would jeopardize the ability of the canneries in American 
Samoa to compete in world markets with lower-cost competitors, and 
further, that tuna landings and processing are essential to the overall 
economic health of American Samoa.
    NMFS has received some relevant information in the public comments 
on the petition, and NMFS intends to collect additional economic and 
other information. However, NMFS does not yet have sufficient 
information to determine whether the 2015 ELAPS limit is likely to 
jeopardize the ability of the American Samoa canneries to compete in 
world markets, or to determine how the loss of such competitiveness 
would affect American Samoa's overall economy. Moreover, if the 2015 
ELAPS limit is found to impact American Samoa's fish processing 
facilities and its economy in the manner alleged in the petition, NMFS 
would

[[Page 64384]]

need to determine whether the requested action is appropriate to 
address the problem, and further, whether it can be implemented 
consistent with U.S. obligations under the Convention and other 
applicable laws. NMFS does not expect that collecting and analyzing the 
necessary information, determining the appropriate course of action, if 
any, and completing such action could be accomplished before the end of 
2015. For this reason, NMFS denies the second part of Tri Marine's 
petition for rulemaking.
    Although NMFS has denied the petition, NMFS acknowledges that some 
of the issues raised in the petition warrant further examination. As 
described in the following section, NMFS intends to more fully examine 
the problems raised by the petitioner and by commenters on the 
petition. If the findings of that examination confirm a problem that--
given U.S. obligations under the Convention and other applicable laws--
warrants corrective action, NMFS would consider further rulemaking. At 
this time, however, NMFS cannot predict the timing or provisions of any 
future proposed or final rule.

Advance Notice of Proposed Rulemaking

    Under the WCPFC Implementation Act, NMFS exercises broad discretion 
when determining how it implements Commission decisions, such as purse 
seine fishing restrictions. NMFS intends to examine the potential 
impacts of the domestic implementation of Commission decisions for 
purse seine fisheries on the economies of the U.S. Participating 
Territories, and examine the connectivity between the activities of 
U.S.-flagged purse seine fishing vessels and the economies of the 
territories. Based on those findings, NMFS will consider proposing 
regulations that mitigate adverse economic impacts of purse seine 
fishing restrictions on the U.S. Participating Territories, to the 
extent consistent with U.S. obligations under the Convention. Also, 
NMFS is considering proposing regulations that recognize that in the 
context of the Convention, one or more of the U.S. Participating 
Territories have their own purse seine fisheries that are distinct from 
the purse seine fishery of the United States. In that case, the purse 
seine fisheries of the U.S. Participating Territories might be subject 
to special provisions of the Convention and of Commission decisions, 
and NMFS would implement those provisions and decisions accordingly.
    NMFS notes that the Tri Marine petition focused on the 2015 ELAPS 
limit. This advanced notice of proposed rulemaking is broader in scope, 
and could apply to other types of restrictions on purse seine fishing 
that are adopted by the Commission.
    In summary, NMFS provides notice that it is considering proposing a 
rule that would establish rules and/or procedures to address the 
treatment of U.S.-flagged purse seine vessels and their fishing 
activities and how they relate to the U.S. Participating Territories in 
regulations issued by NMFS that implement decisions of the Commission.
    NMFS solicits comments on this advance notice of proposed 
rulemaking. NMFS is particularly interested in receiving any 
information that would be helpful in assessing the impacts of 
Commission decisions for purse seine fisheries--as implemented 
domestically--on the economies of the U.S. Participating Territories, 
and any information that demonstrates connections between the U.S. 
Participating Territories and U.S.-flagged purse seine vessels and 
their fishing activities.

Classification

    This advance notice of proposed rulemaking has been determined to 
be not significant for the purposes of Executive Order 12866.

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

    Dated: October 19, 2015.
Eileen Sobeck,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2015-26968 Filed 10-20-15; 4:15 pm]
BILLING CODE 3510-22-P