[Federal Register Volume 81, Number 81 (Wednesday, April 27, 2016)]
[Proposed Rules]
[Pages 24772-24782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-09856]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 160205084-6084-01]
RIN 0648-BF76


International Fisheries; Western and Central Pacific Fisheries 
for Highly Migratory Species; Purse Seine Observer Requirements, and 
Fishing Restrictions and Limits in Purse Seine and Longline Fisheries 
for 2016-2017

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 seeks comments on this proposed rule issued under 
authority of the Western and Central Pacific Fisheries Convention 
Implementation Act (WCPFC Implementation Act). The proposed rule would, 
first, require that U.S. purse seine vessels carry observers on fishing 
trips in the western and central Pacific Ocean (WCPO); second, 
establish restrictions in 2016 and 2017 on the use of fish aggregating 
devices (FADs) by U.S. purse seine vessels in the WCPO; and third, 
establish limits in 2016 and 2017 on the amount of bigeye tuna that may 
be captured by U.S. longline vessels in the WCPO. This action is 
necessary to satisfy the 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 on the proposed rule must be submitted in writing by 
May 12, 2016.

ADDRESSES: You may submit comments on the proposed rule and the 
regulatory impact review (RIR) prepared for the proposed rule, 
identified by NOAA-NMFS-2016-0031, 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-2016-0031,
    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).
    An initial regulatory flexibility analysis (IRFA) prepared under 
authority of the Regulatory Flexibility Act is included in the 
Classification section of the SUPPLEMENTARY INFORMATION section of this 
document.
    Copies of the RIR and the programmatic environmental assessment 
(PEA) prepared for National Environmental Policy Act (NEPA) purposes 
are available at www.regulations.gov or may be obtained from Michael D. 
Tosatto, Regional Administrator, NMFS PIRO (see address above).

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

SUPPLEMENTARY INFORMATION: 

Background on the Convention

    The Convention focuses on the conservation and management of 
fisheries for highly migratory species (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 for the 
Conservation and Management of Highly Migratory Fish Stocks in the 
Western and Central Pacific Ocean (Commission or WCPFC), which includes 
Members, Cooperating Non-members, and Participating Territories 
(collectively referred to here as ``members''). The United States of 
America is a Member. American Samoa, Guam, and the Commonwealth of the 
Northern Mariana Islands (CNMI) are Participating Territories.
    As a Contracting Party to the Convention and a Member of the 
Commission, the United States implements conservation and management 
measures and other decisions adopted by the Commission. 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 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.

Proposed Action

    This proposed rule includes three elements, described in detail 
below, that would be included in regulations at 50 CFR part 300, 
subpart O. The three elements would implement specific provisions of 
the Commission's Conservation and Management Measure (CMM) 2015-01, 
``Conservation and Management Measure for Bigeye, Yellowfin, and 
Skipjack Tuna in the Western and Central Pacific Ocean.'' CMM 2015-01 
was adopted by the Commission at its twelth regular annual session, in 
December 2015, went into effect February 6, 2016, and is generally 
applicable for the 2016-2017 period. CMM 2015-01 is the latest in a 
series of CMMs devoted to the conservation and management of tropical 
tuna stocks, particularly stocks of bigeye tuna (Thunnus obesus), 
yellowfin tuna (Thunnus albacares), and skipjack tuna (Katsuwonus 
pelamis). CMM 2015-01

[[Page 24773]]

maintains the provisions of its predecessor, CMM 2014-01. The stated 
objective of CMM 2015-01 and several of its predecessor CMMs is to 
ensure that the stocks of bigeye tuna, yellowfin tuna, and skipjack 
tuna 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.

1. Purse Seine Observer Requirements

    CMM 2015-01 requires that each member of the Commission ensure that 
any of its flagged purse seine vessels fishing in the Convention Area 
between the latitudes of 20[deg] N. and 20[deg] S.--with the exception 
of fishing exclusively in waters under the jurisdiction of a single 
nation--carry a WCPFC observer. Additionally, CMM 2015-01 requires that 
each member of the Commission ensure that any purse seine vessel 
fishing exclusively in that member's waters in the Convention Area 
between the latitudes of 20[deg] N. and 20[deg] S. carry an observer 
(not necessarily a WCPFC observer). A WCPFC observer is an observer 
deployed from an observer program that has been authorized by the 
Commission to be part of the WCPFC Regional Observer Programme (see 50 
CFR 300.211).
    NMFS proposes to satisfy these provisions of CMM 2015-01 by 
prohibiting U.S. purse seine vessels from fishing in the Convention 
Area between the latitudes of 20[deg] N. and 20[deg] S. without a WCPFC 
observer on board, with the exception of fishing trips during which any 
fishing in the Convention Area takes place entirely within areas under 
the jurisdiction of a single nation other than the United States. 
Although U.S. purse seine vessels would be exempt from this requirement 
on trips in which fishing occurs only in the waters of a single foreign 
nation, it is expected that such foreign nations would require that 
U.S. purse seine vessels carry observers if fishing in their waters.
    Currently, the Pacific Islands Forum Fisheries Agency (FFA) 
observer program, from which observers for the U.S. WCPO purse seine 
fleet have traditionally been deployed, and the NMFS observer program, 
among others, are authorized as part of the WCPFC Regional Observer 
Programme. Thus, observers deployed by these programs are considered 
WCPFC observers.
    The Commission has had purse seine observer requirements similar to 
those in CMM 2015-01 since 2008, when it adopted CMM 2008-01. In recent 
years, NMFS has been implementing those requirements through the 
regulation at 50 CFR 300.215(c), which authorizes NMFS to direct owners 
and operators of fishing vessels to carry WCPFC observers on fishing 
trips during which the vessel at any time enters or is within the 
Convention Area. NMFS has been issuing directives annually, by letter 
to the owners of affected purse seine vessels. To help ensure that all 
affected parties have effective notice of the requirement, NMFS 
proposes here to establish specific observer requirements for purse 
seine vessels in the regulations, rather than by letter directives 
issued under 50 CFR 300.215(c).

2. Purse Seine FAD Restrictions for 2016-2017

    Paragraphs 14-19 of CMM 2015-01 require WCPFC members to implement 
certain restrictions on the use of FADs by purse seine fishing vessels. 
All the restrictions are to be applied in the Convention Area between 
the latitudes of 20[deg] N. and 20[deg] S.
    Under paragraph 14, Commission members are to prohibit their purse 
seine vessels from setting on FADs during the three-month period July 
through September in each of 2016 and 2017. Under paragraphs 15-18, 
members have the option of applying either: (1) Two additional FAD 
closure months (January and February in addition to July through 
September), or (2) in addition to the three-month FAD closure 
referenced in paragraph 14, limiting the total number of FAD sets by 
its vessels to the number listed in Column B of Attachment A of CMM 
2015-01 (i.e., for the United States, 2,202 sets for each of 2015 and 
2016).
    Importantly, however, under paragraph 15, the provisions regarding 
a fifth FAD closure month and the annual FAD set limits identified in 
paragraph 17 do not take effect until the Commission adopts 
arrangements to ensure that the action does not result in transferring, 
directly or indirectly, a disproportionate burden of conservation 
action onto small island developing states. The Commission has not yet 
adopted such arrangements. Until these decisions are taken, NMFS 
construes the obligations of the United States under paragraphs 15-18 
to require either adding a fourth month, October, to the July-September 
FAD prohibition period in each of 2016 and 2017, or alternatively, 
limiting the number of FAD sets in each of those two years to 2,522 
(from Column A of Attachment A of CMM 2015-01).
    Finally, under paragraph 18, Commission members are to prohibit 
setting on FADs on the high seas in the Convention Area in 2017.
    In accordance with paragraph 14 of the CMM, NMFS proposes to 
establish a FAD prohibition period from July through September in each 
of 2016 and 2017. Regarding the choice between an additional month of 
closure in October each year and a limit of 2,522 FAD sets each year, 
the Commission designed the CMM such that the two options were roughly 
equivalent in terms of their expected effects on the fishing mortality 
of bigeye tuna. The Commission provides no guidance to inform the 
selection of either option, which is left to the discretion of 
individual Commission members. After considering the objectives of CMM 
2015-01, the expected economic impacts on U.S. fishing operations and 
the nation as a whole, and expected environmental and other effects, 
NMFS expects that for both 2016 and 2017, a limit of 2,522 FAD sets is 
likely to be somewhat more cost-effective than a FAD prohibition period 
in October. For this reason, NMFS is proposing to implement this option 
for 2016 and 2017. We specifically seek public comment on which option 
is more appropriate. A comparison of the two options' expected economic 
impacts on affected fishing businesses is provided in the IRFA.
    Finally, this proposed rule would establish specific measures that 
NMFS deems necessary to implement the prohibition on FAD sets on the 
high seas for 2017, in accordance with paragraph 18 of CMM 2015-01. As 
currently defined in 50 CFR 300.211, a FAD is ``any artificial or 
natural floating object, whether anchored or not and whether situated 
at the water surface or not, that is capable of aggregating fish, as 
well as any object used for that purpose that is situated on board a 
vessel or otherwise out of the water. The definition of FAD does not 
include a vessel.'' Under this proposed rule, the regulatory definition 
of a FAD would not change. Although the definition of a FAD does not 
include a vessel, the restrictions during the FAD prohibition periods 
would include certain activities related to fish that have aggregated 
in association with a vessel, or drawn by a vessel, as described below.
    In summary, this proposed rule would establish: FAD prohibition 
periods from July 1 through September 30 in each of 2016 and 2017; a 
limit of 2,522 FAD sets that may be made in each of 2016 and 2017; and 
specific measures that are

[[Page 24774]]

necessary to implement the United States' obligation to prohibit its 
purse seine vessels from setting on FADs on the high seas throughout 
2017. The prohibitions applicable to these proposed FAD-related 
measures are in existing regulations at 50 CFR 300.223(b)(1)(i)-(v). 
Specifically, during the July-September FAD prohibition periods in each 
of 2016 and 2017, after the 2,522 FAD set limit is reached in either 
2016 or 2017 (until the end of the respective calendar year), and on 
the high seas throughout 2017, owners, operators, and crew of fishing 
vessels of the United States would be prohibited from doing any of the 
following activities in the Convention Area in the area between 20[deg] 
N. latitude and 20[deg] S. latitude:
    (1) Set a purse seine around a FAD or within one nautical mile of a 
FAD.
    (2) Set a purse seine in a manner intended to capture fish that 
have aggregated in association with a FAD or a vessel, such as by 
setting the purse seine in an area from which a FAD or a vessel has 
been moved or removed within the previous eight hours, setting the 
purse seine in an area in which a FAD has been inspected or handled 
within the previous eight hours, or setting the purse seine in an area 
into which fish were drawn by a vessel from the vicinity of a FAD or a 
vessel.
    (3) Deploy a FAD into the water.
    (4) Repair, clean, maintain, or otherwise service a FAD, including 
any electronic equipment used in association with a FAD, in the water 
or on a vessel while at sea, except that: a FAD may be inspected and 
handled as needed to identify the FAD, identify and release 
incidentally captured animals, un-foul fishing gear, or prevent damage 
to property or risk to human safety; and a FAD may be removed from the 
water and if removed may be cleaned, provided that it is not returned 
to the water.
    (5) From a purse seine vessel or any associated skiffs, other 
watercraft or equipment, submerge lights under water; suspend or hang 
lights over the side of the purse seine vessel, skiff, watercraft or 
equipment, or direct or use lights in a manner other than as needed to 
illuminate the deck of the purse seine vessel or associated skiffs, 
watercraft or equipment, to comply with navigational requirements, and 
to ensure the health and safety of the crew. These prohibitions would 
not apply during emergencies as needed to prevent human injury or the 
loss of human life, the loss of the purse seine vessel, skiffs, 
watercraft or aircraft, or environmental damage.

3. Longline Bigeye Tuna Catch Limits for 2016-2017

    Under paragraphs 40-42 CMM 2015-01, Commission members are to limit 
catches by their longline vessels of bigeye tuna in the Convention Area 
to specified levels in each of 2016 and 2017. The applicable limits for 
the United States in 2016 and 2017 are 3,554 metric tons (mt) and 3,345 
mt, respectively. In addition, paragraph 40 of the CMM states that any 
catch overage in a given year shall be deducted from the catch limit 
for the following year. This provision was also in CMM 2014-01, the 
predecessor to CMM 2015-01, so it pertains to the catch limit for 2016 
as well as 2017. The Commission has not adopted limits for the longline 
fisheries of any of the U.S. Participating Territories, American Samoa, 
Guam, and the CNMI.
    As stated above, the Commission-adopted limit for 2016 is 3,554 mt 
less any overage of the limit applicable in 2015. The limit for 2015 
was 3,502 mt (see the final rule that established the 2015 limit at 80 
FR 43634; published July 23, 2015). NMFS has not yet made the final 
estimate of bigeye tuna catches in 2015 with respect to the 2015 limit. 
NMFS anticipates being able to do so sometime in April of 2016. Because 
that estimate is not yet available, NMFS proposes here a limit for 2016 
set at 3,554 mt, which assumes there was no overage in 2015. If NMFS 
later determines that there was an overage in 2015, NMFS would adjust 
the 2016 limit as follows: an amount equal to that overage will be 
subtracted from 3,554 mt to determine the annual limit for 2016. NMFS 
also proposes here a limit for 2017 set at 3,345 mt, which similarly 
assumes that there will be no overage of the 2016 limit. If NMFS, when 
it makes its final estimate of the 2016 catch in early 2017, determines 
that an overage has occurred, it would revise the 2017 limit 
accordingly.
    These proposed limits for 2016 and 2017 would be applied in the 
manner set out in existing regulations at 50 CFR 300.224(b)-(f), which 
would not be revised by this proposed rule. Following is a description 
of the application of these existing regulations, subject to the 
proposed limits for 2016 and 2017.
    The 2016 and 2017 longline bigeye tuna catch limits would apply 
only to U.S-flagged longline vessels operating as part of the U.S. 
longline fisheries. The limits would not apply to U.S. longline vessels 
operating as part of the longline fisheries of American Samoa, the 
CNMI, or Guam. Existing regulations at 50 CFR 300.224(b), (c), and (d) 
detail the manner in which longline-caught bigeye tuna is attributed 
among the fisheries of the United States and the U.S. Participating 
Territories.
    Consistent with the basis for the limits prescribed in CMM 2015-01 
and with previous rules issued by NMFS to implement bigeye tuna catch 
limits in U.S. longline fisheries, the catch limits would be measured 
in terms of retained catches--that is, bigeye tuna that are caught by 
longline gear and retained on board the vessel.
    As set forth under the existing regulations at 50 CFR 300.224(e), 
if NMFS determines that the 2016 or 2017 limit is expected to be 
reached before the end of the respective calendar year, NMFS would 
publish a notice in the Federal Register to announce specific fishing 
restrictions that would be effective from the date the limit is 
expected to be reached until the end of that calendar year. NMFS would 
publish the notice of the restrictions at least 7 calendar days before 
the effective date to provide vessel owners and operators with advance 
notice. Periodic forecasts of the date the limit is expected to be 
reached would be made available to the public on the Web site of the 
NMFS Pacific Islands Regional Office, at www.fpir.noaa.gov/SFD/SFD_regs_3.html, to help vessel owners and operators plan for the 
possibility of the limit being reached.
    As set forth under the existing regulations at 50 CFR 300.224(f), 
if the 2016 or 2017 limit is reached, the following restrictions would 
go into effect:
    (1) Retaining on board, transshipping, or landing bigeye tuna: 
Starting on the effective date of the restrictions and extending 
through December 31 of the applicable year, it would be prohibited to 
use a U.S. fishing vessel to retain on board, transship, or land bigeye 
tuna captured in the Convention Area by longline gear, with three 
exceptions, as described below.
    First, any bigeye tuna already on board a fishing vessel upon the 
effective date of the restrictions may be retained on board, 
transshipped, and/or landed, provided that they are landed within 14 
days after the restrictions become effective. A vessel that had 
declared to NMFS pursuant to 50 CFR 665.803(a) that the current trip 
type is shallow-setting would not be subject to this 14-day landing 
restriction, so these vessels would be able to land bigeye tuna more 
than 14 days after the restrictions become effective.
    Second, bigeye tuna captured by longline gear may be retained on 
board, transshipped, and/or landed if they are caught by a fishing 
vessel registered for use under a valid American Samoa

[[Page 24775]]

Longline Limited Access Permit, or if they are landed in American 
Samoa, Guam, or the CNMI. However, the bigeye tuna must not be caught 
in the portion of the U.S. EEZ surrounding the Hawaiian Archipelago, 
and must be landed by a U.S. fishing vessel operated in compliance with 
a valid permit issued under 50 CFR 660.707 or 665.801.
    Third, bigeye tuna captured by longline gear may be retained on 
board, transshipped, and/or landed if they are caught by a vessel that 
is included in a valid specified fishing agreement under 50 CFR 
665.819(d), in accordance with 50 CFR 300.224(f)(1)(iv).
    (2) Transshipping bigeye tuna to certain vessels: To the extent 
authorized under the prohibition described above on ``retaining on 
board, transshipping, or landing bigeye tuna,'' starting on the 
effective date of the restrictions and extending through December 31 of 
the applicable year, it would be prohibited to transship bigeye tuna 
caught by longline gear in the Convention Area to any vessel other than 
a U.S. fishing vessel operated in compliance with a valid permit issued 
under 50 CFR 660.707 or 665.801.
    (3) Fishing inside and outside the Convention Area: To help ensure 
compliance with the restrictions related to bigeye tuna caught by 
longline gear in the Convention Area, the proposed rule would establish 
two additional, related prohibitions that would go into effect starting 
on the effective date of the restrictions and extending through 
December 31 of the applicable year. First, vessels would be prohibited 
from fishing with longline gear both inside and outside the Convention 
Area during the same fishing trip, with the exception of a fishing trip 
that is in progress at the time the announced restrictions go into 
effect. In the case of a fishing trip that is in progress at the time 
the restrictions go into effect, the vessel still must land any bigeye 
tuna taken in the Convention Area within 14 days of the effective date 
of the restrictions, as described above. Second, if a vessel is used to 
fish using longline gear outside the Convention Area and enters the 
Convention Area at any time during the same fishing trip, the longline 
gear on the fishing vessel must be stowed in a manner so as not to be 
readily available for fishing while the vessel is in the Convention 
Area. These two prohibitions would not apply to vessels on declared 
shallow-setting trips pursuant to 50 CFR 665.803(a), or vessels 
operating for the purposes of this rule as part of the longline 
fisheries of American Samoa, Guam, or the CNMI. This second group 
includes vessels registered for use under valid American Samoa Longline 
Limited Access Permits; vessels landing their bigeye tuna catch in one 
of the three U.S. Participating Territories, so long as these vessels 
conduct fishing activities in accordance with the conditions described 
above; and vessels included in a specified fishing agreement under 50 
CFR 665.819(d), in accordance with 50 CFR 300.224(f)(1)(iv).

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:
Estimated Number of Small Entities Affected
    Small entities include ``small businesses,'' ``small 
organizations,'' and ``small governmental jurisdictions.'' The Small 
Business Administration (SBA) has established size standards for all 
major industry sectors in the United States, including commercial 
finfish harvesters (NAICS code 114111). A business primarily involved 
in finfish harvesting is classified as a small business if it is 
independently owned and operated, is not dominant in its field of 
operation (including its affiliates), and has combined annual receipts 
not in excess of $20.5 million for all its affiliated operations 
worldwide.
    The proposed rule would apply to owners and operators of U.S. purse 
seine and longline vessels used for fishing for HMS in the Convention 
Area. The number of purse seine vessels that would be affected by the 
rule is approximated by the number with WCPFC Area Endorsements, which 
are the NMFS-issued authorizations required to use a vessel to fish 
commercially for HMS on the high seas in the Convention Area. As of 
March 2016 the number of purse seine vessels with WCPFC Area 
Endorsements was 41.
    The proposed rule would apply to U.S. longline vessels used to fish 
for HMS in the Convention Area, except those operating as part of the 
longline fisheries of American Samoa, the CNMI, or Guam. The total 
number of affected longline vessels is approximated by the number of 
vessels with Hawaii Longline Limited Access Permits (issued under 50 
CFR 665.13), although some such vessels might be able to operate as 
part of the longline fisheries of the U.S. Participating Territories 
and thus not be affected. Under the Hawaii longline limited access 
program, no more than 164 permits may be issued. During 2006-2012 the 
number of permitted vessels ranged from 130 to 145. The current number 
of permitted vessels (as of March 2016) is 113, but NMFS expects the 
number to increase to more typical historical levels soon, as vessel 
owners renew their permits, which expire in March each year. U.S. 
longline vessels based on the U.S. west coast without Hawaii Longline 
Limited Access Permits also could be affected by this proposed rule if 
they fish in the Convention Area. However, the number of such vessels 
is very small and fishing in the Convention Area by such vessels is 
rare, so it is expected that very few, if any, such vessels would be 
affected.
    Most of the Hawaii longline fleet targets bigeye tuna using deep 
sets, and during certain parts of the year, portions of the fleet 
target swordfish using shallow sets. In the years 2005 through 2012, 
the estimated numbers of Hawaii longline vessels that actually fished 
ranged from 124 to 129. Of the vessels that fished, the number of 
vessels that engaged in deep-setting in the years 2005 through 2012 
ranged from 122 to 129, and the number of vessels that engaged in 
shallow-setting ranged from 18 to 35. The number of vessels that 
engaged in both deep-setting and shallow-setting ranged from 17 to 35. 
The number of vessels that engaged exclusively in shallow-setting 
ranged from zero to two.
    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--in both the purse seine and longline sectors--
are small entities. NMFS used average per-vessel returns over recent 
years to estimate annual revenue, because gross receipts and ex-vessel 
price information

[[Page 24776]]

specific to the individual affected vessels are not available to NMFS.
    For the affected purse seine vessels, 2013 is the most recent year 
for which complete catch data are available, and NMFS estimates that 
the average annual receipts over 2011-2013 for each purse seine vessel 
were less than the $20.5 million threshold for finfish harvesting 
businesses. The greatest was about $20 million, and the average was 
about $12 million. This is based on the estimated catches of each 
vessel in the purse seine fleet during that period, and indicative 
regional cannery prices developed by the FFA (available at https://www.ffa.int/node/425). Since 2013, cannery prices for purse seine-
caught tuna have declined dramatically, so the vessels' revenues in 
2014 and 2015 very likely declined as well.
    For the longline fishery, the ex-vessel value of catches by the 
Hawaii longline fleet in 2012 was about $87 million. With 129 active 
vessels in that year, per-vessel average revenues were about $0.7 
million, well below the $20.5 million threshold for finfish harvesting 
businesses.
Recordkeeping, Reporting, and Other Compliance Requirements
    The recordkeeping, reporting, and other compliance requirements are 
discussed below for the proposed purse seine observer 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:

1. Purse Seine Observer Requirements

    This element of the proposed rule would not establish any new 
reporting or recordkeeping requirements. The new compliance requirement 
would be for affected vessel owners and operators to carry WCPFC 
observers on all fishing trips in the Convention Area between the 
latitudes of 20[deg] N. and 20[deg] S., with the exception of fishing 
trips during which any fishing in the Convention Area takes place 
entirely within areas under the jurisdiction of a single nation other 
than the United States.
    Fulfillment of this requirement is not expected to require any 
professional skills that the vessel owners and operators do not already 
possess. The expected costs of complying with this requirement are 
described below.
    Under the South Pacific Tuna Treaty (SPTT), U.S. purse seine 
vessels operating in the Treaty Area (which is almost entirely in the 
Convention Area) are required to carry observers on about 20 percent of 
their fishing trips, which equates to roughly one trip per year per 
vessel. The observers required under the terms of the SPTT are deployed 
by the FFA, which acts as the SPTT Administrator on behalf of the 
Pacific Island Parties to the SPTT. The FFA observer program has been 
authorized to be part of the WCPFC observer program, so FFA-deployed 
observers are also WCPFC observers. Thus, in a typical year for a 
typical U.S. purse seine vessel, the cost of carrying observers to 
satisfy requirements under the SPTT can be expected to constitute 20 
percent of the costs of the proposed requirement considered here. 
However, recent events associated with the SPTT make 2016 an atypical 
year. Because of late negotiations among the SPTT parties on the terms 
of access in foreign zones in the SPTT Area for 2016, no U.S. vessels 
were licensed under the SPTT until March of 2016, and thus none were 
authorized to fish in foreign zones or on the high seas in the Treaty 
Area until then. The terms of access for future years, and the SPTT 
itself, are uncertain. Given this uncertainty, an upper-bound estimate 
of the costs of compliance is provided here. For this purpose, it is 
assumed that fishing patterns in the Convention Area will be similar to 
the pattern in recent years, and that observer coverage under the terms 
of the SPTT will not contribute at all to the costs of complying with 
this proposed requirement.
    Based on the U.S. purse seine fleet's fishing patterns in 2011-
2013, it is expected that each vessel will spend about 252 days at sea 
per year, on average, with some vessels spending as many as about 354 
days at sea per year.
    The compliance costs of the proposed requirement can be broken into 
two parts: (1) The costs of providing food, accommodation, and medical 
facilities to observers (observer accommodation costs); and (2) the 
fees imposed by observer providers for deploying observers (observer 
deployment costs). Observer accommodation costs are expected to be 
about $20 per vessel per day-at-sea.
    With respect to observer deployment costs, affected fishing 
companies could use observers from any program that has been authorized 
by the Commission to be part of the WCPFC Regional Observer Programme. 
In other words, they would not be required to use FFA observers, which 
they have traditionally used until now. Nonetheless, the costs of 
deploying FFA observers are probably good indications of observer 
deployment costs in the region generally, and they are used for this 
analysis. Based on budgets and arrangements for the deployment of 
observers under the FFA observer program, observer deployment costs are 
expected to be about $230 per vessel per day-at-sea. Thus, combined 
observer accommodation costs and observer deployment costs are expected 
to be about $250 per vessel per day-at-sea. For the average vessel, 
which is expected to spend about 252 days at sea per year, the total 
cost of compliance would therefore be about $63,000 per year. The cost 
for vessels that spend fewer days at sea would be accordingly less. At 
the other extreme, if a vessel spends 354 days at sea (the top of the 
range in 2011-2013), the total cost of compliance would be about 
$88,500 per year. Both of these figures are upper-bound estimates. If 
arrangements under the SPTT return to something like they have been in 
the past, then the numbers of days spent at sea on fishing trips in the 
Convention Area are likely be close to the levels described above, but 
the compliance costs would be about 20 percent less than estimated 
above because observer coverage under the SPTT would satisfy about 20 
percent of the coverage required under this rule. If arrangements under 
the SPTT do not return to something like they have been in the recent 
past, then the number of days spent at sea on fishing trips in the 
Convention Area could be substantially lower than as described above, 
and the costs of complying with this proposed requirement would be 
accordingly less.

2. Purse Seine FAD Restrictions for 2016-2017

    This element of the proposed rule would not establish any new 
reporting or recordkeeping requirements. The new requirement would be 
for affected vessel owners and operators to comply with the FAD 
restrictions described earlier in the SUPPLEMENTARY INFORMATION section 
of the preamble, including FAD prohibition periods from July 1 through 
September 30 in each of 2016 and 2017; limits of 2,522 FAD sets that 
may be made in each of 2016 and 2017; and prohibitions on specific uses 
of FADs on the high seas in 2017.
    Compliance with these restrictions is not expected to require any 
professional skills that the vessel owners and operators do not already 
possess. The expected costs of complying with this requirement are 
described below to the extent possible.
    The proposed FAD restrictions would substantially constrain the 
manner in which purse seine fishing could be conducted in the specified 
areas and periods in the Convention Area; in those

[[Page 24777]]

areas and during those periods, vessels would be able to set only on 
free, or ``unassociated,'' schools.
    The costs associated with the proposed FAD restrictions cannot be 
quantitatively estimated, but the fleet's historical use of FADs can 
give a qualitative indication of the costs. In the years 1997-2013, 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. Thus, the importance of FAD sets in terms of profits appears to 
be quite variable over time, and is probably a function of many 
factors, including fuel prices (unassociated sets involve more 
searching time and thus tend to bring higher fuel costs than FAD sets) 
and market conditions (e.g., FAD fishing, which tends to result in 
greater catches of lower-value skipjack tuna and smaller yellowfin tuna 
and bigeye tuna than unassociated sets, might be more attractive and 
profitable when canneries are not rejecting small fish). Thus, the 
costs of complying with the FAD restrictions would depend on a variety 
of factors.
    In 2010-2013, the last 4 years for which complete data are 
available and for which there was 100 percent observer coverage, the 
U.S. WCPO purse seine fleet made about 39 percent of its sets on FADs. 
During the months when setting on FADs was allowed, the percentage was 
about 58 percent. The fact that the fleet has made such a substantial 
portion of its sets on FADs indicates that prohibiting the use of FADs 
in the specified areas and periods could bring substantial costs and/or 
revenue losses.
    To mitigate these impacts, vessel operators might choose to 
schedule their routine vessel and equipment maintenance during the FAD 
prohibition periods. However, the limited number of vessel maintenance 
facilities in the region might constrain vessel operators' ability to 
do this. It also is conceivable that some vessels might choose not to 
fish at all during the FAD prohibition periods rather than fish without 
the use of FADs. Observations of the fleet's behavior in 2009-2013, 
when FAD prohibition periods were in effect, 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 2009-2013 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.
    The proposed FAD restrictions for 2016 would be similar to those in 
place in 2013-2015, except that there would be a limit of 2,522 FAD 
sets instead of the October FAD prohibition period that was in place in 
2013-2015. 2016 is an unusual year in that SPTT licenses for 2016 were 
not issued until March, and the number of licensed vessels (34 as of 
March 2016) is fewer than in recent years. Thus, there has been 
relatively little purse seine fishing effort to date in the Convention 
Area in 2016. As a result, the expected amount of fishing effort in the 
Convention Area in 2016 is expected to be substantially less than in 
recent years. Consequently, the 2,522 FAD set limit would be less 
constraining than it would be if fishing effort were greater. For 
example, if total fishing effort in 2016 is 5,000 fishing days (about 
62% of the average in 2010-2013), and the average number of sets made 
per fishing day is the same as in 2010-2013 (0.97), and the average 
number of all sets that are FAD sets (``FAD set ratio'') during periods 
when FAD sets are allowed is the same as in 2010-2013 (58%), and if 
fishing effort is evenly distributed through the year, then the number 
of FAD sets expected in 2016 under the proposed rule would be about 
2,130, somewhat less than the limit of 2,522. Under the assumptions 
described above, the limit of 2,522 FAD sets would start to become 
constraining at a total fishing effort level of 5,900 fishing days.
    The effects of the proposed FAD restrictions in 2017 would likely 
be greater than in 2016 because of the additional prohibition on 
setting on FADs on the high seas. The magnitude of that additional 
impact cannot be predicted, but as an indication of the additional 
impact, in 2010-2013, about 10 percent of the fleet's fishing effort 
occurred on the high seas. As in 2016, the impact of the 2,522 FAD set 
limit in 2017 would be primarily a function of the fleet's total level 
of fishing effort. Given the uncertainty related to the future of the 
SPTT, fishing effort in 2017 is very difficult to predict. As described 
above for 2016, the limit would start to become constraining at a 
fishing effort level of about 5,900 fishing days, but in 2017 that 
threshold would be applicable only in the portion of the Convention 
Area that is not high seas (again, about 10 percent of fishing effort 
has occurred on the high seas in recent years).
    In summary, the economic impacts of the FAD prohibition periods and 
FAD set limits in 2016 and 2017 and the prohibition on using FADs on 
the high seas throughout 2017 cannot be quantified, but they could be 
substantial. Their magnitude would depend in part on market conditions, 
oceanic conditions, and the fleet's fishing effort in 2016 and 2017, 
which will be determined in part by any limits on allowable levels of 
fishing effort in foreign EEZs and on the high seas in the Convention 
Area.

3. Longline Bigeye Tuna Catch Limits for 2016-2017

    This element of the proposed rule would not establish any new 
reporting or recordkeeping requirements. The new compliance requirement 
would be for affected vessel owners and operators to cease retaining, 
landing, and transshipping bigeye tuna caught with longline gear in the 
Convention Area if and when the bigeye tuna catch limit is reached in 
2016 (3,554 mt) or 2017 (3,345 mt), for the remainder of the calendar 
year, subject to the exceptions and provisos described in other 
sections of this SUPPLEMENTARY INFORMATION section of the preamble. 
Although the restrictions that would come into effect in the event the 
catch limit is reached would not prohibit longline fishing, per se, 
they are sometimes referred to in this analysis as constituting a 
fishery closure.
    Fulfillment of this requirement is not expected to require any 
professional skills that the vessel owners and operators do not already 
possess. The costs of complying with this requirement are described 
below to the extent possible.
    Complying with this element of the proposed rule could cause 
foregone fishing opportunities and result in associated economic losses 
in the event that the bigeye tuna catch limit is reached in 2016 or 
2017 and the restrictions on retaining, landing, and transshipping 
bigeye tuna are imposed for portions of either or both of those years. 
These costs cannot be projected quantitatively with any certainty. The 
proposed limits of 3,554 mt for 2016 and 3,345 mt for 2017 can be 
compared to catches in 2005-2008, before limits were in place. The 
average annual catch in that period was 4,709 mt. Based on that 
history, as well as fishing patterns in 2009-2015, when limits were in 
place, there appears to be a relatively high likelihood of the proposed 
limits being reached in 2016 and 2017. 2015 saw exceptionally high 
catches of bigeye tuna. Although final estimates for 2015 are not 
available, the limit of 3,502 mt was estimated to have been reached by, 
and the fishery was closed on, August 5 (see temporary rule published 
July 28, 2015; 80 FR 44883). The fishery was subsequently re-opened for 
vessels included in agreements with the governments of the CNMI and 
Guam under regulations implementing Amendment 7 to the Fishery 
Ecosystem

[[Page 24778]]

Plan for Pelagic Fisheries of the Western Pacific Region (Pelagics FEP) 
(50 CFR 665.819). If bigeye tuna catch patterns in 2016 or 2017 are 
like those in 2005-2008, the limits would likely be reached in the 
fourth quarter of the year. If catches are more accelerated, as in 
2015, the limit could be reached in the third quarter of the year.
    If the bigeye tuna limit is reached before the end of 2016 or 2017 
and the Convention Area longline bigeye tuna fishery is consequently 
closed for the remainder of the calendar year, it can be expected that 
affected vessels would shift to the next most profitable fishing 
opportunity (which might be not fishing at all). Revenues from that 
next best alternative activity reflect the opportunity costs associated 
with longline fishing for bigeye tuna in the Convention Area. The 
economic cost of the proposed rule would not be the direct losses in 
revenues that would result from not being able to fish for bigeye tuna 
in the Convention Area, but rather the difference in benefits derived 
from that activity and those derived from the next best activity. The 
economic cost of the proposed rule on affected entities is examined 
here by first estimating the direct losses in revenues that would 
result from not being able to fish for bigeye tuna in the Convention 
Area as a result of the catch limit being reached. Those losses 
represent the upper bound of the economic cost of the proposed rule on 
affected entities. Potential next-best alternative activities that 
affected entities could undertake are then identified in order to 
provide a (mostly qualitative) description of the degree to which 
actual costs would be lower than that upper bound.
    Upper bounds on potential economic costs can be estimated by 
examining the projected value of longline landings from the Convention 
Area that would not be made as a result of reaching the limit. For this 
purpose, it is assumed that, absent this proposed rule, bigeye tuna 
catches in the Convention Area in each of 2016 and 2017 would be 5,000 
mt, slightly more than the average in 2005-2008. Under this scenario, 
imposition of limits of 3,554 mt for 2016 and 3,345 mt for 2017 would 
result in 29 percent and 33 percent less bigeye tuna being caught in 
those two years, respectively, than under no action. In the deep-set 
fishery, catches of marketable species other than bigeye tuna would 
likely be affected in a similar way if vessels do not shift to 
alternative activities. Assuming for the moment that ex-vessel prices 
would not be affected by a fishery closure, under the proposed rule, 
revenues in 2016 and 2017 to entities that participate exclusively in 
the deep-set fishery would be approximately 29 and 33 percent less than 
under no action in 2016 and 2017, respectively. Average annual ex-
vessel revenues (from all species) per mt of bigeye tuna caught during 
2005-2008 were about $14,190/mt (in 2014 dollars, derived from the 
latest available annual report on the pelagic fisheries of the western 
Pacific Region (Western Pacific Regional Fishery Management Council, 
2014, Pelagic Fisheries of the Western Pacific Region: 2012 Annual 
Report. Honolulu, Western Pacific Fishery Management Council). If there 
are 128 active vessels in the fleet, as there were during 2005-2008, on 
average, then under the no-action scenario of fleet-wide anuual catches 
of 5,000 mt, each vessel would catch 39 mt/yr, on average. Reductions 
of 29 percent and 33 percent in 2016 and 2017, respectively, as a 
result of the proposed limits would be about 11 mt and 13 mt, 
respectively. Applying the average ex-vessel revenues (from all 
species) of $14,190 per mt of bigeye tuna caught, the reductions in ex-
vessel revenue per vessel would be $160,000 and $183,000, on average, 
for 2016 and 2017, respectively.
    In the shallow-set fishery, affected entities would bear limited 
costs in the event of the limit being reached (but most affected 
entities also participate in the deep-set fishery and might bear costs 
in that fishery, as described below). The cost would be about equal to 
the revenues lost from not being able to retain or land bigeye tuna 
captured while shallow-setting in the Convention Area, or the cost of 
shifting to shallow-setting in the eastern Pacific Ocean (EPO), which 
is to the east of 150 degrees W. longitude, whichever is less. In the 
fourth calendar quarters of 2005-2008, almost all shallow-setting 
effort took place in the EPO, and 97 percent of bigeye tuna catches 
were made there, so the cost of a bigeye tuna fishery closure to 
shallow-setting vessels would appear to be very limited. During 2005-
2008, the shallow-set fishery caught an average of 54 mt of bigeye tuna 
per year from the Convention Area. If the proposed bigeye tuna catch 
limit is reached even as early as July 31 in 2016 or 2017, the 
Convention Area shallow-set fishery would have caught at that point, 
based on 2005-2008 data, on average, 99 percent of its average annual 
bigeye tuna catches. Imposition of the landings restriction at that 
point in 2016 or 2017 would result in the loss of revenues from 
approximately 0.5 mt (1 percent of 54 mt) of bigeye tuna, which, based 
on recent ex-vessel prices, would be worth no more than $5,000. Thus, 
expecting about 27 vessels to engage in the shallow-set fishery (the 
annual average in 2005-2012), the average of those potentially lost 
annual revenues would be no more than $200 per vessel. The remainder of 
this analysis focuses on the potential costs of compliance in the deep-
set fishery.
    It should be noted that the impacts on affected entities' profits 
would be less than impacts on revenues when considering the costs of 
operating vessels, because costs would be lower if a vessel ceases 
fishing after the catch limit is reached. Variable costs can be 
expected to be affected roughly in proportion to revenues, as both 
variable costs and revenues would stop accruing once a vessel stops 
fishing. But affected entities' costs also include fixed costs, which 
are borne regardless of whether a vessel is used to fish--e.g., if it 
is tied up at the dock during a fishery closure. Thus, profits would 
likely be adversely impacted proportionately more than revenues.
    As stated previously, actual compliance costs for a given entity 
might be less than the upper bounds described above, because ceasing 
fishing would not necessarily be the most profitable alternative 
opportunity when the catch limit is reached. Two alternative 
opportunities that are expected to be attractive to affected entities 
include: (1) Deep-set longline fishing for bigeye tuna in the 
Convention Area in a manner such that the vessel is considered part of 
the longline fishery of American Samoa, Guam, or the CNMI; and (2) 
deep-set longline fishing for bigeye tuna and other species in the EPO. 
These two opportunities are discussed in detail below. Four additional 
opportunities are: (3) Shallow-set longline fishing for swordfish (for 
deep-setting vessels that would not otherwise do so), (4) deep-set 
longline fishing in the Convention Area for species other than bigeye 
tuna, (5) working in cooperation with vessels operating as part of the 
longline fisheries of the Participating Territories--specifically, 
receiving transshipments at sea from them and delivering the fish to 
the Hawaii market, and 6) vessel repair and maintenance. A study by 
NMFS of the effects of the WCPO bigeye tuna longline fishery closure in 
2010 (Richmond, L., D. Kotowicz, J. Hospital and S. Allen, 2015, 
Monitoring socioeconomic impacts of Hawai`i's 2010 bigeye tuna closure: 
Complexities of local management in a global fishery, Ocean & Coastal 
Management 106:87-96) did not identify the occurrence of any 
alternative activities that vessels

[[Page 24779]]

engaged in during the closure, other than deep-setting for bigeye tuna 
in the EPO, vessel maintenance and repairs, and granting lengthy 
vacations to employees. Based on those findings, NMFS expects that 
alternative opportunities (3), (4), (5) and (6) are probably 
unattractive relative to the first two alternatives, and are not 
discussed here in any further detail. NMFS recognizes that vessel 
maintenance and repairs and granting lengthy vacations to employees are 
two alternative activities that might be taken advantage of if the 
fishery is closed, but no further analysis of their mitigating effects 
is provided here.
    Before examining in detail the two potential alternative fishing 
opportunities that would appear to be the most attractive to affected 
entities, it is important to note that under the proposed rule, once 
the limit is reached and the WCPO bigeye tuna fishery is closed, 
fishing with longline gear both inside and outside the Convention Area 
during the same trip would be prohibited (except in the case of a 
fishing trip that is in progress when the limit is reached and the 
restrictions go into effect). For example, after the restrictions go 
into effect, during a given fishing trip, a vessel could be used for 
longline fishing for bigeye tuna in the EPO or for longline fishing for 
species other than bigeye tuna in the Convention Area, but not for 
both. This reduced operational flexibility would bring costs, since it 
would constrain the potential profits from alternative opportunities. 
Those costs cannot be quantified.
    A vessel could take advantage of the first alternative opportunity 
(deep-setting for bigeye tuna in a manner such that the vessel is 
considered part of the longline fishery of one of the three U.S. 
Participating Territories), by three possible methods: (a) Landing the 
bigeye tuna in one of the three Participating Territories, (b) holding 
an American Samoa Longline Limited Access Permit, or (c) being 
considered part of a Participating Territory's longline fishery, by 
agreement with one or more of the three Participating Territories under 
the regulations implementing Amendment 7 to the Pelagics FEP (50 CFR 
665.819). In the first two circumstances, the vessel would be 
considered part of the longline fishery of the Participating Territory 
only if the bigeye tuna were not caught in the portion of the U.S. EEZ 
around the Hawaiian Islands and were landed by a U.S. vessel operating 
in compliance with a permit issued under the regulations implementing 
the Pelagics FEP or the Fishery Management Plan for U.S. West Coast 
Fisheries for Highly Migratory Species.
    With respect to the first method of engaging in alternative 
opportunity 1 (1.a.) (landing the bigeye tuna in one of the 
Participating Territories), there are three potentially important 
constraints. First, whether the fish are landed by the vessel that 
caught the fish or by a vessel to which the fish were transshipped, the 
costs of a vessel transiting from the traditional fishing grounds in 
the vicinity of the Hawaiian Archipelago to one of the Participating 
Territories would be substantial. Second, none of these three locales 
has large local consumer markets to absorb substantial additional 
landings of fresh sashimi-grade bigeye tuna. Third, transporting the 
bigeye tuna from these locales to larger markets, such as markets in 
Hawaii, the U.S. west coast, or Japan, would bring substantial 
additional costs and risks. These cost constraints suggest that this 
alternative opportunity has limited potential to mitigate the economic 
impacts of the proposed rule on affected small entities.
    The second method of engaging in the first alternative opportunity 
(1.b.) (having an American Samoa Longline Limited Access Permit), would 
be available only to the subset of the Hawaii longline fleet that has 
both Hawaii and American Samoa longline permits (dual permit vessels). 
Vessels that do not have both permits could obtain them if they meet 
the eligibility requirements and pay the required costs. For example, 
the number of dual permit vessels increased from 12 in 2009, when the 
first WCPO bigeye tuna catch limit was established, to 20 in both 2011 
and 2012. The previously cited NMFS study of the 2010 fishery closure 
(Richmond et al. 2015) found that bigeye tuna landings of dual permit 
vessels increased substantially after the start of the closure on 
November 22, 2010, indicating that this was an attractive opportunity 
for dual permit vessels, and suggesting that those entities might have 
benefitted from the catch limit and the closure.
    The third method of engaging in the first alternative opportunity 
(1.c.) (entering into an Amendment 7 agreement), was also available in 
2011-2015 (in 2011-2013, under section 113(a) of Public Law 112-55, 125 
Stat. 552 et seq., the Consolidated and Further Continuing 
Appropriations Act, 2012, continued by Public Law 113-6, 125 Stat. 603, 
section 110, the Department of Commerce Appropriations Act, 2013; 
hereafter, ``section 113(a)''). As a result of agreements that were in 
place in 2011-2014, the WCPO bigeye tuna fishery was not closed in any 
of those four years because the annual limit for U.S. longline 
fisheries adopted by the WCPFC was not reached. In 2015 the fishery was 
closed in August but then reopened when agreements with the CNMI, and 
later with Guam, went into effect. Participation in an Amendment 7 
agreement would likely not come without costs to fishing businesses. As 
an indication of the possible cost, the terms of the agreement between 
American Samoa and the members of the Hawaii Longline Association (HLA) 
in effect in 2011 and 2012 included payments totaling $250,000 from the 
HLA to the Western Pacific Sustainable Fisheries Fund, equal to $2,000 
per vessel. It is not known how the total cost was allocated among the 
members of the HLA, so it is possible that the owners of particular 
vessels paid substantially more than or less than $2,000.
    The second alternative opportunity (2) (deep-set fishing for bigeye 
tuna in the EPO), would be an option for affected entities only if it 
is allowed under regulations implementing the decisions of the Inter-
American Tropical Tuna Commission (IATTC). Annual longline bigeye tuna 
catch limits have been in place for the EPO in most years since 2004. 
Since 2009, a bigeye tuna catch limit of 500 mt for 2016 has applied to 
U.S. longline vessels greater than 24 meters (m) in length (50 CFR 
300.25), and the limits were reached in 2013 (November 11), 2014 
(October 31), and 2015 (August 12). The highly seasonal nature of 
bigeye tuna catches in the EPO and the relatively high inter-annual 
variation in catches prevents NMFS from making a useful prediction of 
whether and when the limit in 2016 is likely to be reached. However, 
the trend in 2013-2015 suggests a relatively high likelihood of it 
being reached in 2016. If it is reached, this alternative opportunity 
would not be available for large longline vessels, which constitute 
about a quarter of the fleet. Currently there is no limit in place for 
2017; the IATTC would have to take further action to adopt a limit for 
2017, which NMFS would then need to implement.
    Historical fishing patterns can provide an indication of the 
likelihood of affected entities making use of the opportunity of deep-
setting in the EPO in the event of a closure in the WCPO. The 
proportion of the U.S. fishery's annual bigeye tuna catches that were 
captured in the EPO from 2005 through 2008 ranged from 2 percent to 22 
percent, and averaged 11 percent. In 2005-2007, that proportion ranged 
from 2 percent to 11 percent, and may have been constrained by the 
IATTC-adoped

[[Page 24780]]

bigeye tuna catch limits established by NMFS (no limit was in place for 
2008). Prior to 2009, most of the U.S. annual bigeye tuna catch by 
longline vessels in the EPO typically was made in the second and third 
quarters of the year; in 2005-2008 the percentages caught in the first, 
second, third, and fourth quarters were 14, 33, 50, and 3 percent, 
respectively. These data demonstrate two historical patterns--that 
relatively little of the bigeye tuna catch in the longline fishery was 
typically taken in the EPO (11 percent in 2005-2008, on average), and 
that most EPO bigeye tuna catches were made in the second and third 
quarters, with relatively few catches in the fourth quarter when the 
proposed catch limit would most likely be reached. These two patterns 
suggest that there could be substantial costs for at least some 
affected entities that shift to deep-set fishing in the EPO in the 
event of a closure in the WCPO. On the other hand, fishing patterns 
since 2008 suggest that a substantial shift in deep-set fishing effort 
to the EPO could occur. In 2009, 2010, 2011, 2012, 2013, and 2014, the 
proportions of the fishery's annual bigeye tuna catches that were 
captured in the EPO were about 16, 27, 23, 19, 36, and 36 percent, 
respectively, and most bigeye tuna catches in the EPO were made in the 
latter half of the calendar years.
    The NMFS study of the 2010 closure (Richmond et al. 2015) found 
that some businesses--particularly those with smaller vessels--were 
less inclined than others to fish in the EPO during the closure because 
of the relatively long distances that would need to be travelled in the 
relatively rough winter ocean conditions. The study identified a number 
of factors that likely made fishing in the EPO less lucrative than 
fishing in the WCPO during that part of the year, including fuel costs 
and the need to limit trip length in order to maintain fish quality and 
because of limited fuel storage capacity.
    In addition to affecting the volume of landings of bigeye tuna and 
other species, the proposed catch limits could affect fish prices, 
particularly during a fishery closure. Both increases and decreases 
appear possible. After a limit is reached and landings from the WCPO 
are prohibited, ex-vessel prices of bigeye tuna (e.g., that are caught 
in the EPO or by vessels in the longline fisheries of the three U.S. 
Participating Territories), as well as of other species landed by the 
fleet, could increase as a result of the constricted supply. This would 
mitigate economic losses for vessels that are able to continue fishing 
and landing bigeye tuna during the closure. For example, the NMFS study 
of the 2010 closure (Richmond et al. 2015) found that ex-vessel prices 
during the closure in December were 50 percent greater than the average 
during the previous five Decembers. (It is emphasized that because it 
was an observational study, neither this nor other observations of what 
occurred during the closure can be affirmatively linked as effects of 
the fishery closure.)
    Conversely, a WCPO bigeye tuna fishery closure could cause a 
decrease in ex-vessel prices of bigeye tuna and other products landed 
by affected entities if the interruption in the local supply prompts 
the Hawaii market to shift to alternative (e.g., imported) sources of 
bigeye tuna. Such a shift could be temporary--that is, limited to 2016 
and/or 2017--or it could lead to a more permanent change in the market 
(e.g., as a result of wholesale and retail buyers wanting to mitigate 
the uncertainty in the continuity of supply from the Hawaii longline 
fisheries). In the latter case, if locally caught bigeye tuna fetches 
lower prices because of stiffer competition with imported bigeye tuna, 
then ex-vessel prices of local product could be depressed indefinitely. 
The NMFS study of the 2010 closure (Richmond et al. 2015) found that a 
common concern in the Hawaii fishing community prior to the closure in 
November 2010 was retailers having to rely more heavily on imported 
tuna, causing imports to gain a greater market share in local markets. 
The study found this not to have been borne out, at least not in 2010, 
when the evidence gathered in the study suggested that few buyers 
adapted to the closure by increasing their reliance on imports, and no 
reports or indications were found of a dramatic increase in the use of 
imported bigeye tuna during the closure. The study concluded, however, 
that the 2010 closure caused buyers to give increased consideration to 
imports as part of their business model, and it was predicted that tuna 
imports could increase during any future closure. To the extent that 
ex-vessel prices would be reduced by this action, revenues earned by 
affected entities would be affected accordingly, and these impacts 
could occur both before and after the limit is reached, and as 
described above, possibly after 2017.
    The potential economic effects identified above would vary among 
individual business entities, but it is not possible to predict the 
range of variation. Furthermore, the impacts on a particular entity 
would depend on both that entity's response to the proposed rule and 
the behavior of other vessels in the fleet, both before and after the 
catch limit is reached. For example, the greater the number of vessels 
that take advantage--before the limit is reached--of the first 
alternative opportunity (1), fishing as part of one of the 
Participating Territory's fisheries, the lower the likelihood that the 
limit would be reached. The fleet's behavior in 2011 and 2012 is 
illustrative. In both those years, most vessels in the Hawaii fleet 
were included in a section 113(a) arrangement with the government of 
American Samoa, and as a consequence, the U.S. longline catch limit was 
not reached in either year. Thus, none of the vessels in the fleet, 
including those not included in the section 113(a) arrangements, were 
prohibited from fishing for bigeye tuna in the Convention Area at any 
time during those two years. The fleet's experience in 2010 (before 
opportunities under section 113(a) or Amendment 7 to the Pelagics FEP 
were available) provides another example of how economic impacts could 
be distributed among different entities. In 2010 the limit was reached 
and the WCPO bigeye tuna fishery was closed on November 22. As 
described above, dual permit vessels were able to continue fishing 
outside the U.S. EEZ around the Hawaiian Archipelago and benefit from 
the relatively high ex-vessel prices that bigeye tuna fetched during 
the closure.
    In summary, based on potential reductions in ex-vessel revenues, 
NMFS has estimated that the upper bound of potential economic impacts 
of the proposed rule on affected longline fishing entities could be 
roughly $160,000 per vessel, on average, in 2016 and $183,000 per 
vessel, on average, in 2017. The actual impacts to most entities are 
likely to be substantially less than those upper bounds, and for some 
entities the impacts could be neutral or positive (e.g., if one or more 
Amendment 7 agreements are in place in 2016 and 2017 and the terms of 
the agreements are such that the U.S. longline fleet is effectively 
unconstrained by the catch limits).
Disproportionate Impacts
    As indicated above, all affected entities are believed to be small 
entities, so small entities would not be disproportionately affected 
relative to large entities. Nor would there be disproportionate 
economic impacts based on home port.
    Purse seine vessels would be impacted differently than longline 
vessels, but whether the impacts would be disproportional between the 
two gear types cannot be determined.
    For the longline sector, as described above, there could be 
disproportionate impacts according to vessel type and size and the type 
of fishing permits

[[Page 24781]]

held. A vessel with both a Hawaii Longline Limited Access Permit and an 
American Samoa Longline Limited Access Permit would be considered part 
of the American Samoa longline fishery (except when fishing in the U.S. 
EEZ around the Hawaiian Archipelago), so it would not be subject to the 
proposed catch limits. Because the EPO bigeye tuna catch limit for 2016 
applies only to vessels greater than 24 m in length, in the event that 
the WCPO bigeye tuna fishery is closed and the 500 mt limit is reached 
in the EPO, only vessels 24 m or less in length would be able to take 
advantage of the alternative opportunity of deep-setting for bigeye 
tuna in the EPO. On the other hand, smaller vessels can be expected to 
find it more difficult, risky, and/or costly to fish in the EPO during 
the relatively rough winter months than larger vessels. If there are 
any large entities among the affected entities, and if the vessels of 
the large entities are larger than those of small entities, then it is 
possible that small entities could be disproportionately affected 
relative to large entities.
Duplicating, Overlapping, and Conflicting Federal Regulations
    NMFS has not identified any Federal regulations that duplicate, 
overlap with, or conflict with the proposed regulations.
Alternatives to the Proposed Rule
    NMFS has sought to identify alternatives that would minimize the 
proposed rule's economic impact on small entities (``significant 
alternatives''). Taking no action could result in lesser adverse 
economic impacts than the proposed action for affected entities in the 
purse seine and longline fisheries (but as described below, for some 
affected longline entities, the proposed rule could be more 
economically beneficial than no-action), but NMFS does not prefer the 
no-action alternative, because it would be inconsistent with the United 
States' obligations under the Convention. Alternatives identified for 
each of the three elements of the proposed rule are discussed below.

1. Purse Seine Observer Requirements

    NMFS has not identified any significant alternatives to the 
proposed purse seine observer requirements that would comport with U.S. 
obligations to implement the Commission decisions regarding observer 
coverage.

2. Purse Seine FAD Restrictions for 2016-2017

    NMFS considered in detail one set of alternatives to the proposed 
restrictions on the use of FADs. Under CMM 2015-01, the United States 
could use either of two options in either of 2016 and 2017 (in addition 
to the three-month FAD closure periods in both years and the 
prohibition on FAD sets on the high seas in 2017). One option is a 
fourth-month FAD prohibition period, in October. The second option, 
proposed in this rule, is an annual limit of 2,522 FAD sets. The 
relative effects of the two options would depend on the total amount of 
fishing effort exerted by the U.S. purse seine fleet in the Convention 
Area in a given year. If total fishing effort is relatively high, an 
October FAD prohibition period would likely allow for more FAD sets 
than a limit of 2,522 FAD sets, and thus likely cause lesser adverse 
impacts. The opposite would be the case for relatively low levels of 
total fishing effort. For example, given the fleet's recent historical 
average FAD set ratio of 58 percent when FAD-setting is allowed (2010-
2013), and assuming an even distribution of sets throughout the year, 
the estimated ``breakeven'' point between the two options is 6,502 
total sets for the year. The levels of fishing effort in 2016 and 2017 
are very difficult to predict; they will be determined largely by the 
level of participation in the fishery (number of vessels) and any 
limits imposed on fishing effort. Fishing effort in foreign zones and 
on the high seas in the SPTT Area is likely to be limited by the terms 
of arrangements under the SPTT. Fishing effort elsewhere in the 
Convention Area (e.g., in the U.S. EEZ and on the high seas outside the 
Treaty Area) would be constrained by any limits established by NMFS to 
implement the provisions of CMM 2015-01. NMFS has not yet established 
or proposed any such limits for 2016 or 2017, and cannot speculate what 
limits it might propose, but a point of reference are the limits that 
were in place in 2009-2015. Those limits applied to the Effort Limit 
Area for Purse Seine, or ELAPS, which consists of all areas of high 
seas and U.S. exlusive economic zone in the Convention Area between the 
latitudes of 20[deg] N. and 20[deg] S. The limits in 2009-2013 were 
2,588 fishing days per year. The limits in 2014-2015 were 1,828 fishing 
days per year. With respect to numbers of vessels and allowable fishing 
effort limits under the SPTT, 2016 is an unusual year in that SPTT 
licenses for 2016 were not issued until March, and the number of 
licensed vessels (34 as of March 2016) is fewer than in recent years. 
Thus, there has been relatively little purse seine fishing effort to 
date in the Convention Area in 2016, and NMFS expects that total 
fishing effort in 2016 is likely to be less than 6,502 sets (the 
estimated breakeven point between the two options). For reference, the 
average number of sets made annually in 2010-2013, when an average of 
38 vessels were active in the fishery, was 7,835. The average number of 
fishing days made annually in 2010-2013 was 8,030, so the average 
number of sets made per fishing day was 0.97. Predicting the situation 
for 2017 is even more difficult than for 2016, but current 
circumstances suggest that participation in 2017 could be less than in 
recent years. Also, because setting on FADs on the high seas would be 
prohibited in 2017 under this proposed rule, the estimated breakeven 
point of 6,502 total sets applies not everywhere in the Convention 
Area, but only those portions that are not high seas. Assuming that 
about 10 percent of fishing effort takes place on the high seas, as in 
2010-2013, the breakeven point for the Convention Area as a whole is 
about 7,224 total sets. Assuming 0.97 sets per fishing day, on average, 
as occurred in 2010-2013, this equates roughly to 7,371 fishing days. 
This is slightly less than the average annual fishing effort in 2010-
2013 (7,835 sets; 8,030 fishing days), but again, given current 
circumstances and uncertainty surrounding the future of the SPTT, NMFS 
expects that total fishing effort in 2017 is likely to be less than 
that breakeven level. Based on the above expectations and assumptions 
for conditions in 2016 and 2017, an annual limit of 2,522 FAD sets is 
likely to have lesser adverse impacts on fishing businesses than a FAD 
prohibition period in October, in both 2016 and 2017, and NMFS prefers 
the proposed action for that reason.

3. Longline Bigeye Tuna Catch Limits

    NMFS has not identified any significant alternatives to this 
element of the proposed rule, other than the no-action alternative.

List of Subjects in 50 CFR Part 300

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

    Dated: April 22, 2016.
Eileen Sobeck,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 300 is 
proposed to be amended as follows:

[[Page 24782]]

PART 300--INTERNATIONAL FISHERIES REGULATIONS

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

    Authority:  16 U.S.C. 951 et seq., 16 U.S.C. 1801 et seq., 16 
U.S.C. 5501 et seq., 16 U.S.C. 2431 et seq., 31 U.S.C. 9701 et seq.
0
2. In Sec.  300.222, add paragraph (ww) to read as follows:


Sec.  300.222  Prohibitions.

* * * * *
    (ww) Fail to carry an observer as required in Sec.  300.223(e).
* * * * *
0
3. In Sec.  300.223:
0
a. Revise paragraph (b)(1) introductory text and paragraphs (b)(2)(i) 
and (ii); and
0
b. Add paragraphs (b)(2)(iii) and (iv), and paragraph (e) to read as 
follows:


Sec.  300.223  Purse seine fishing restrictions.

* * * * *
    (b) * * *
    (1) During the periods and in the areas specified in paragraph 
(b)(2) of this section, owners, operators, and crew of fishing vessels 
of the United States 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:
* * * * *
    (2) * * *
    (i) From July 1 through September 30, 2016;
    (ii) From July 1 through September 30, 2017;
    (iii) During any period specified in a Federal Register notice 
issued by NMFS announcing that NMFS has determined that U.S. purse 
seine vessels have collectively made, or are projected to make, 2,522 
sets on FADs in the Convention Area in the area between 20[deg] N. 
latitude and 20[deg] S. latitude in 2016 or 2017. The Federal Register 
notice will be published at least seven days in advance of the start of 
the period announced in the notice. NMFS will estimate and project the 
number of FAD sets using vessel logbooks, and/or other information 
sources that it deems most appropriate and reliable for the purposes of 
this section; and
    (iv) In any area of high seas, from January 1 through December 31, 
2017.
* * * * *
    (e) Observer coverage.
    (1) 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:
    (i) The portion of the fishing trip within the Convention Area 
takes place entirely within areas under the jurisdiction of a single 
nation other than the United States; or,
    (ii) 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.
    (2) Owners, operators, and crew of fishing vessels subject to 
paragraph (e)(1) of this section must accommodate WCPFC observers in 
accordance with the provisions of Sec.  300.215(c).
    (3) Meeting either of the conditions in paragraphs (e)(1)(i) and 
(e)(1)(ii) of this section does not exempt a fishing vessel from having 
to carry and accommodate a WCPFC observer pursuant to Sec.  300.215 or 
other applicable regulations.
* * * * *
0
4. In Sec.  300.224, revise paragraph (a) to read as follows:


Sec.  300.224  Longline fishing restrictions.

    (a) Establishment of bigeye tuna catch limits.
    (1) During calendar year 2016 there is a limit of 3,554 metric tons 
of bigeye tuna that may be captured in the Convention Area by longline 
gear and retained on board by fishing vessels of the United States.
    (2) During calendar year 2017 there is a limit of 3,345 metric tons 
of bigeye tuna that may be captured in the Convention Area by longline 
gear and retained on board by fishing vessels of the United States.
* * * * *
[FR Doc. 2016-09856 Filed 4-26-16; 8:45 am]
 BILLING CODE 3510-22-P