[Federal Register Volume 81, Number 101 (Wednesday, May 25, 2016)]
[Rules and Regulations]
[Pages 33147-33149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-12345]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 160322276-6276-01]
RIN 0648-BF93


International Fisheries; Western and Central Pacific Fisheries 
for Highly Migratory Species; Fishing Effort Limits in Purse Seine 
Fisheries for 2016

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

ACTION: Interim rule; request for comments.

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SUMMARY: This interim rule establishes a limit for calendar year 2016 
on fishing effort by U.S. purse seine vessels in the U.S. exclusive 
economic zone (U.S. EEZ) and on the high seas between the latitudes of 
20[deg] N. and 20[deg] S. in the area of application of the Convention 
on the Conservation and Management of Highly Migratory Fish Stocks in 
the Western and Central Pacific Ocean (Convention). The limit is 1,828 
fishing days. This action is necessary for the United States to 
implement provisions of a conservation and management measure adopted 
by the Commission for the Conservation and Management of Highly 
Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC 
or Commission) and to satisfy the obligations of the United States 
under the Convention, to which it is a Contracting Party.

DATES: Effective on May 25, 2016. Comments must be submitted in writing 
by June 24, 2016.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2016-0038, and the regulatory impact review (RIR) prepared 
for the interim rule, 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-2016-0038,
    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).
    Copies of the RIR, and the programmatic environmental assessment 
(PEA) and supplemental information report 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 is concerned with 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 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, as appropriate, conservation 
and management measures adopted by the Commission and other decisions 
of 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.

WCPFC Decision on Tropical Tunas

    At its Twelfth Regular Session, in December 2015, the WCPFC adopted 
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 is the most recent in 
a series of CMMs for the management of tropical tuna stocks under the 
purview of the Commission. It is a successor to CMM 2014-01, adopted in 
December 2014. These and other CMMs are available at: www.wcpfc.int/conservation-and-management-measures.
    The stated general objective of CMM 2015-01 and several of its 
predecessor CMMs is to ensure that the stocks of bigeye tuna (Thunnus 
obesus), yellowfin tuna (Thunnus albacares), and skipjack tuna 
(Katsuwonus pelamis) in the WCPO are, at a minimum, maintained at 
levels capable of producing their maximum sustainable yield as 
qualified by relevant environmental and economic factors. The CMM 
includes specific objectives for each of the three stocks: For each, 
the fishing mortality rate is to be reduced to or maintained at levels 
no greater than the fishing mortality rate

[[Page 33148]]

associated with maximum sustainable yield.
    CMM 2015-01 went into effect February 6, 2016, and is generally 
applicable for the 2016-2017 period. The CMM includes provisions for 
purse seine vessels, longline vessels, and other types of vessels that 
fish for HMS. The CMM's provisions for purse seine vessels include 
limits on the allowable number of fishing vessels, limits on the 
allowable level of fishing effort, restrictions on the use of fish 
aggregating devices, requirements to retain all bigeye tuna, yellowfin 
tuna, and skipjack tuna except in specific circumstances, and 
requirements to carry vessel observers.
    The provisions of CMM 2015-01 apply on the high seas and in EEZs in 
the Convention Area; they do not apply in territorial seas or 
archipelagic waters.
    Paragraphs 20-27 of CMM 2015-01 require that WCPFC members limit 
the amount of fishing effort by purse seine vessels in certain areas of 
the Convention Area between the latitudes of 20[deg] N. and 20[deg] S. 
Paragraph 23 contains the relevant provisions for the U.S. EEZ, and 
paragraph 25 contains the relevant provisions for U.S. fishing vessels 
on the high seas.
    Under Paragraph 23 of CMM 2015-01, coastal members like the United 
States are to ``establish effort limits, or equivalent catch limits for 
purse seine fisheries within their EEZs that reflect the geographical 
distributions of skipjack, yellowfin, and bigeye tunas, and are 
consistent with the objectives for those species.'' It further states, 
``Those coastal States that have already notified limits to the 
Commission shall restrict purse seine effort and/or catch within their 
EEZs in accordance with those limits.'' The United States has regularly 
notified the Commission of its purse seine effort limits for the U.S. 
EEZ since the limits were first established in 2009 (in a final rule 
published August 4, 2009; 74 FR 38544). Accordingly, the applicable 
limit for the U.S. EEZ is the same as that implemented by NMFS since 
2009, which is 558 fishing days per year. Under paragraph 23 of CMM 
2015-01, this limit is applicable from 2016 through 2017.
    Paragraph 25 of CMM 2015-01 further provides that U.S. purse seine 
fishing effort on the high seas in 2016 be limited to 1,270 fishing 
days. It does not include limits for the years after 2016, instead 
stating that in 2016 the Commission will review the 2016 limits and 
agree on limits for later years.

The Action

    This interim rule is limited to implementing CMM 2015-01's 
provisions on allowable levels of fishing effort by purse seine vessels 
on the high seas and in the U.S. EEZ in the Convention Area, and only 
for 2016. The CMM's other provisions are being implemented through one 
or more separate rules, as appropriate.
    As in previous rules to implement similar Commission-mandated 
limits on purse seine fishing effort, this interim rule continues to 
implement the applicable limits for the U.S. EEZ (paragraph 23 of CMM 
2015-01) and the high seas (paragraph 25 of CMM 2015-01) such that they 
apply to a single area, without regard to the boundary between the U.S. 
EEZ and the high seas. CMM 2015-01 has separate provisions for the high 
seas and the EEZ merely because they are subject to different 
management responsibility, and not because of different conservation 
and management needs or objectives for the two areas. Specifically, CMM 
2015-01 calls for fishing effort in EEZs to be limited by coastal 
States, and fishing effort in areas of high seas to be limited by flag 
States.
    In this case, the United States is both a coastal State and a flag 
State and will satisfy its dual responsibilities by implementing a rule 
that combines the two areas for the purpose of limiting purse seine 
fishing effort. NMFS considered both the action alternative that would 
combine the two areas and another alternative that would not (see the 
PEA and the RIR for comparisons of the two alternatives). Because both 
alternatives would accomplish the objective of controlling fishing 
effort by the WPCFC-adopted amount (i.e., by U.S. purse seine vessels 
operating on the high seas and by purse seine vessels in areas under 
U.S. jurisdiction, collectively), and because the alternative of 
combining the two areas is expected to result in greater operational 
flexibility to affected purse seine vessels and lesser adverse economic 
impacts, NMFS is implementing the alternative that would combine the 
two areas. This combined area (within the Convention Area between the 
latitudes of 20[deg] N. and 20[deg] S.) is referred to in U.S. 
regulations as the Effort Limit Area for Purse Seine, or ELAPS (see 50 
CFR 300.211).
    The 2016 purse seine fishing effort limit for the ELAPS is 
formulated as in previous rules to establish limits for the ELAPS: The 
applicable limit for the U.S. EEZ portion of the ELAPS, 558 fishing 
days per year, is combined with the applicable limit for the high seas 
portion of the ELAPS, 1,270 fishing days per year, resulting in a 
combined limit of 1,828 fishing days in the ELAPS for calendar year 
2016. This ELAPS limit for 2016, 1,828 fishing days, is identical to 
the limits established for 2014 and 2015.
    The meaning of ``fishing day'' is defined at 50 CFR 300.211; that 
is, any day in which a fishing vessel of the United States equipped 
with purse seine gear searches for fish, deploys a FAD, services a FAD, 
or sets a purse seine, with the exception of setting a purse seine 
solely for the purpose of testing or cleaning the gear and resulting in 
no catch.
    As established in existing regulations for purse seine fishing 
effort limits in the ELAPS, NMFS will monitor the number of fishing 
days spent in the ELAPS using data submitted in logbooks and other 
available information. If and when NMFS determines that the limit of 
1,828 fishing days is expected to be reached by a specific future date, 
it will publish a notice in the Federal Register announcing that the 
purse seine fishery in the ELAPS will be closed starting on a specific 
future date and will remain closed until the end of calendar year 2016. 
NMFS will publish that notice at least seven days in advance of the 
closure date (see 50 CFR 300.223(a)(2)). Starting on the announced 
closure date, and for the remainder of calendar year 2016, it will be 
prohibited for U.S. purse seine vessels to fish in the ELAPS (see CFR 
300.223(a)(3)).
    This interim rule is being issued without prior notice or prior 
public comment because of the unexpectedly high level of U.S. purse 
seine fishing effort in the ELAPS in 2016. The high level in 2016 was 
unexpected because the fleet did not receive licenses which are 
required for fishing in the South Pacific Tuna Treaty Area, which 
includes most of the ELAPS, until March 4. NMFS did not anticipate that 
U.S. purse seine vessels would concentrate fishing effort during the 
first two months of 2016 in small pocket areas of the ELAPS that are 
not part of the Treaty Licensing Area and do not require Treaty 
licenses to fish.
    To satisfy the international obligations of the United States as a 
Contracting Party to the Convention, NMFS must establish the applicable 
limits for 2016 before they are exceeded, which, based on preliminary 
data available to date, NMFS expects could occur as early as June of 
2016. NMFS would not be able to establish the applicable limits for 
2016 if it issued and considered public comments on a proposed rule 
prior to issuing a final rule. Nonetheless, NMFS will consider public 
comments on this interim rule and issue a final rule, responding to 
comments as appropriate.

[[Page 33149]]

Petition for Rulemaking and Advance Notice of Proposed Rulemaking

    On May 12, 2015, as NMFS was preparing to publish the interim rule 
to establish the ELAPS limit for 2015 (published May 21, 2015; 80 FR 
29220), NMFS received a petition for rulemaking from Tri Marine 
Management Company, LLC. The company requested, first, that NOAA 
undertake an emergency rulemaking to implement the 2015 ELAPS limits 
for fishing days on the high seas, and second, that NOAA issue a rule 
exempting from that high seas limit any U.S.-flagged purse seine vessel 
that, 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. On October 23, 2015, NMFS announced that it 
had denied the petition, but at the same time issued an advance notice 
of proposed rulemaking (ANPR) related to the subject of the petition 
(80 FR 64382). NMFS stated that it 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. NMFS further stated that it 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, and that 
it is considering proposing regulations that recognize that in the 
context of implementing Commission decisions, fisheries associated with 
the U.S. Participating Territories are distinct from the purse seine 
fishery of the United States. In that case, the purse seine fisheries 
associated with 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' impact analysis is not completed and NMFS is not prepared to 
propose regulations of the types described in the ANPR. However, 
establishment through this interim rule of the limit of 1,828 fishing 
days for 2016 will not preclude NMFS from proposing at a later date 
regulations of the types described in the ANPR for 2016 or subsequent 
years.

Classification

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

Administrative Procedure Act

    There is good cause under 5 U.S.C. 553(b)(B) to waive prior notice 
and the opportunity for public comment on this action, because prior 
notice and the opportunity for public comment would be contrary to the 
public interest. This rule establishes a limit on purse seine fishing 
effort for 2016 that is identical to the limits in place for 2014 and 
2015. Affected entities have been subject to fishing effort limits in 
the affected area--the ELAPS--since 2009, and are expecting imminent 
publication of the 2016 fishing effort limits. Because the amount of 
U.S. purse seine fishing effort in the ELAPS so far in 2016 has been 
unusually high, it is critical that NMFS publish the limit for 2016 as 
soon as possible to ensure it is not exceeded and the United States 
complies with its international legal obligations with respect to CMM 
2015-01. Based on preliminary data available to date, NMFS expects that 
the applicable limit of 1,828 fishing days in the ELAPS could be 
reached as early as June of 2016. Delaying this rule to allow for 
advance notice and public comment would bring a substantial risk that 
more than 1,828 fishing days would be spent in the ELAPS in 2016, 
constituting non-compliance by the United States with respect to the 
purse seine fishing effort limit provisions of CMM 2015-01. Because a 
delay in implementing this limit for 2016 could result in the United 
States violating its international legal obligations with respect to 
the purse seine fishing effort limit provisions of CMM 2015-01, which 
are important for the conservation and management of tropical tuna 
stocks in the WCPO, allowing advance notice and the opportunity for 
public comment would be contrary to the public interest. NMFS will, 
however, consider public comments received on this interim rule and 
issue a final rule, responding to comments as appropriate.
    For the reasons articulated above, there is also good cause under 5 
U.S.C. 553(d)(3) to waive the 30-day delay in effective date for this 
rule. As described above, NMFS must implement the purse seine fishing 
effort provisions of CMM 2015-01 as soon as possible, in order to 
ensure that the applicable effort limits are not exceeded. These 
fishing effort provisions are intended to reduce or otherwise control 
fishing pressure on bigeye tuna, yellowfin tuna, and skipjack tuna in 
the WCPO in order to maintain or restore those stocks at levels capable 
of producing maximum sustainable yield on a continuing basis. Failure 
to immediately implement these provisions could result in excessive 
fishing pressure on these stocks, in violation of international and 
domestic legal obligations.

Executive Order 12866

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

Regulatory Flexibility Act

    Because prior notice and opportunity for public comment are not 
required for this rule by 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., are inapplicable. Therefore, no regulatory flexibility 
analysis was required and none has been prepared.

List of Subjects in 50 CFR Part 300

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

    Dated: May 19, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 300--INTERNATIONAL FISHERIES REGULATIONS

Subpart O--Western and Central Pacific Fisheries for Highly 
Migratory Species

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

    Authority:  16 U.S.C. 6901 et seq.
0
2. In Sec.  300.223, revise paragraph (a)(1) to read as follows:


Sec.  300.223  Purse seine fishing restrictions.

* * * * *
    (a) * * *
    (1) For calendar year 2016 there is a limit of 1,828 fishing days.
* * * * *

[FR Doc. 2016-12345 Filed 5-24-16; 8:45 am]
 BILLING CODE 3510-22-P