[Federal Register Volume 81, Number 116 (Thursday, June 16, 2016)]
[Rules and Regulations]
[Pages 39213-39216]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14239]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

RIN 0648-XD344


Pacific Bluefin Tuna in the Eastern Pacific Ocean; Response to 
Petition for Rulemaking

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

ACTION: Notice of decision on petition.

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SUMMARY: NMFS announces its decision on a petition for rulemaking 
submitted by the Center for Biological Diversity (CBD). In their 
petition, CBD requested that NMFS implement additional domestic 
regulations to address the relative impacts of the U.S. fleet on the 
Pacific bluefin tuna (PBF) stock, which is overfished and subject to 
overfishing. Outside of the scope of their petition for rulemaking, CBD 
also requested that NMFS develop recommendations for international 
fishery management organizations to take actions to end overfishing of 
PBF. In light of public comments, NMFS is responding to each element of 
the petition but referring the specific requests for rulemaking under 
the Magnuson-Stevens Fishery Conservation and Management Act (MSA) to 
the Pacific Fishery Management Council (Pacific Council) for further 
consideration. The decision was made on June 9, 2016.

DATES: June 16, 2016.

FOR FURTHER INFORMATION CONTACT: Heidi Taylor, NMFS, 562-980-4039.

SUPPLEMENTARY INFORMATION: NMFS received a letter from CBD, an 
environmental non-governmental organization, on April 9, 2014. In the 
letter, CBD asserted that PBF (Thunnus orientalis) are not adequately 
protected under the Fishery Management Plan for U.S. West Coast 
Fisheries for Highly Migratory Species (HMS FMP) and that the Pacific 
Council failed to meet its statutory duty to develop recommendations 
for domestic regulations in response to NMFS' determination that the 
PBF stock is overfished and subject to overfishing (78 FR 41033, July 
9, 2013). Specifically, CBD petitioned NMFS to amend the HMS FMP or 
initiate a rulemaking under the authority of the MSA, 16 U.S.C. 1801 et 
seq., to include PBF as a prohibited species until the stock is 
rebuilt, thereby placing a moratorium on retention of PBF by U.S. 
fishing vessels. As an alternative, CBD proposed that NMFS establish 
annual catch limits and a permanent minimum size requirement to protect 
PBF of age classes 1 and 2 and that NMFS amend the HMS FMP to establish 
specific reference points for PBF to guide science-based management of 
the stock. Outside of the scope of the petition for rulemaking, CBD 
requested that NMFS develop recommendations to the Secretary of State 
and Congress to end PBF overfishing at the international level.

Public Input on the Petition

    NMFS published a Federal Register document on July 24, 2014 (79 FR

[[Page 39214]]

43017), to solicit public comments and information on both the petition 
for rulemaking and the non-rulemaking requests contained in CBD's 
letter. NMFS specifically requested that the public provide comments on 
the social, economic, and biological impacts from implementing any of 
the petitioner's requests to assist NMFS in its evaluation and in 
determining what rulemaking action(s), if any, were appropriate.
    NMFS received 29 written comments, 2 emails, and 431 individually 
submitted electronic comments via the Federal e-Rulemaking Portal. CBD 
submitted several electronic comments with 23,826 identical form 
letters attached. The majority of distinct comments came from the 
recreational fishing community, especially sportfishing anglers, while 
some came from the commercial passenger fishing vessel (CPFV) industry. 
Of the individually submitted comments, 323 included rationales for 
opposing a prohibition on fishing for PBF. Additionally, 253 of the 
individually submitted comments included suggestions for alternative 
management measures. A small minority of the public comments received 
expressed their support for banning fishing for PBF in both U.S. waters 
and the high seas. NMFS considered each of the comments in the analysis 
of CBD's petition.

Analysis of Petition and Decision

    Following NMFS' determination that the petition for rulemaking in 
CBD's letter contained enough information to enable NMFS to effectively 
consider the substance of the petition (79 FR 43017, July 24, 2014), 
NMFS evaluated the petitioner's requests with regard to achieving the 
management and conservation objectives of ending overfishing and 
rebuilding the PBF stock. PBF is a trans-Pacific stock that is 
harvested by fishing vessels of many different nations. PBF catch by 
U.S. West Coast fisheries has constituted approximately 2 percent of 
the Pacific-wide catch in recent years (2008-2014) (ISC, 2015).When 
NMFS received the petition from CBD, it had already notified (in a 
letter dated April 8, 2013) the Pacific Council of its duties under 
section 304(i) of the MSA, 16 U.S.C. 1854(i), received a response from 
the Pacific Council (dated April 1, 2014), and engaged with the Council 
in developing both international and domestic measures to reduce 
fishing mortality and aid in rebuilding the PBF stock. These measures 
are described in NMFS' response to the petition, which is summarized 
below. At this time, NMFS views the Pacific Council's recommendations 
and adopted measures as sufficient to fulfill international and 
domestic obligations to conserve the PBF stock and address the relative 
impact of U.S. vessels. However, given the role of the Pacific Council 
in MSA rulemakings and amendments to the HMS FMP, NMFS refers the 
specific requests related to domestic fisheries management (i.e., 
requests 1 and 2 below), as well as NMFS input on these matters, to the 
Pacific Council for further consideration. A more detailed response to 
the petition, as well as access to public comments, is available via 
the Federal eRulemaking Portal: http://www.regulations.gov, identified 
by ``NOAA-NMFS-2014-0076.''
    Petition Request 1: CBD requested that NMFS add PBF to the list of 
prohibited species in the HMS FMP due to the depleted status of the 
stock. CBD contended that doing so would be symbolically powerful and 
would have little to no economic impact on U.S. fishermen.
    Response to Request 1: There is little evidence to suggest that a 
unilateral prohibition on the retention of PBF by U.S. West Coast 
fishermen will either end overfishing or have a consequential impact on 
reducing overfishing because catch of PBF by U.S. West Coast-based 
fleets represents a small portion of the total Pacific-wide catch. 
However, it is clear to NMFS that such a prohibition would economically 
harm both U.S. West Coast commercial and recreational fisheries and 
fishing communities. PBF is a marketable species and is economically 
important to U.S. West Coast fishermen who target highly migratory 
species. The commercial coastal purse seine fleet opportunistically 
targets PBF when they are in the U.S. exclusive economic zone (EEZ). 
While the primary targets for this fleet are small coastal pelagic 
species, such as Pacific sardine, Pacific mackerel, and market squid, 
PBF is part of their historical and current fishing portfolio. PBF are 
also incidentally caught in the commercial large-mesh drift gillnet 
(DGN) fishery, the albacore surface hook-and-line fishery, and the 
deep-set longline fishery. For the directed fishing fleet (purse 
seiners), revenue from PBF alone constitutes about 2 to 4 percent of 
the total revenue from fishing. For the DGN fleet, the annual average 
PBF revenue share is about 3 percent. Despite the fact that U.S. West 
Coast-based sport fishermen are not permitted to sell their catch, 
other positive regional economic impacts generated by recreational 
fishing activities, including personal enjoyment of and willingness to 
pay for recreational fishing, could be negatively impacted by 
prohibiting all retention of PBF by U.S. vessels.
    As part of their biennial management process, the Pacific Council 
considered impacts to recreational fisheries when adopting measures 
under MSA section 304(i) to address the relative impact of U.S. 
fisheries on the PBF stock. During deliberations, the Pacific Council 
considered how allowing anglers to catch and retain PBF might affect 
decisions to take recreational fishing trips. Specifically, the Pacific 
Council considered an analysis of the potential impacts of recreational 
bag and possession limit reductions. This analysis was based on CPFV 
logbook data from the 2008 to 2013 fishing seasons and included 
estimates for economic and employment losses due to a moratorium on 
U.S. West Coast-based PBF retention (e.g., reducing the current PBF bag 
limit from 10 to 0 fish). The analysis has become part of a Southwest 
Fisheries Science Center Working Paper, which includes estimated losses 
of up to $13.8 million in annual trip expenditures and $25.8 million in 
annual gross sales for southern California due to a decrease in the 
number of CPFV trips that target PBF (5,275 angler days in U.S. waters 
and 56,338 angler days in Mexico waters). Additionally, the 0-bag limit 
scenario was estimated to generate a potential employment loss in the 
southern California economy of up to 178 full-time equivalent jobs 
(Stohs, 2016).
    NMFS regards the United States' continued participation in the 
international decision-making processes of the two regional fishery 
management organizations (RFMOs)--the Inter-American Tropical Tuna 
Commission (IATTC) and the Western and Central Pacific Fisheries 
Commission (WCPFC)--as critical to effectively ending overfishing of 
PBF and rebuilding the Pacific-wide stock. Other nations have not 
indicated they would follow suit if the United States were to 
unilaterally impose a moratorium on PBF retention. NMFS will continue 
to work with the U.S. Delegations to the two RFMOs to garner consensus 
from other PBF fishing nations to achieve far greater reductions in 
total fishing mortality than the reductions that could be achieved by 
prohibiting retention for the relatively small-scale U.S. fisheries 
alone. Further, NMFS will continue to work with the Pacific Council to 
adopt and implement, if necessary, additional management measures to 
address the relative impacts of the U.S. fleet.
    Petition Alternative Request 1: As an alternative to a prohibition 
on the retention of PBF, CBD requested that

[[Page 39215]]

NMFS establish annual catch limits (ACLs) and a permanent minimum size 
limit for protecting age class 1 and 2 PBF. CBD requested 
implementation of ACLs, if not a total prohibition on retention, which 
it asserts is a necessary step towards achieving the conservation 
objective of ending overfishing and rebuilding the PBF stock.
    Response to Alternative Request 1: NMFS does not agree with CBD's 
assertion that applying ACL requirements to the U.S. portion of the PBF 
catch limit would lead to ending overfishing. NMFS has already imposed 
PBF catch limits for U.S. commercial fisheries in the eastern Pacific 
Ocean (EPO) under the Tuna Conventions Act. Imposing additional catch 
limits under the authority of MSA would inflict additional costs on 
U.S. industry for little conservation gain. Further, the Pacific 
Council did not adopt ACLs for PBF because it is a transboundary stock 
under international management, and as such is exempt from ACL 
requirements (see paragraph (h)(2)(ii) of the National Standard 1 
guidelines at 50 CFR 600.310).
    NMFS considers CBD's request for a recreational size limit to mean 
that any PBF of age class 1 or 2 caught by U.S. anglers would have to 
be released. Unlike catch or retention limits, a size limit regulation 
is less likely to prohibit or deter targeting of PBF. Maunder and 
Aires-da-Silva (2014) argue that unless a fishery can completely 
control its selectivity, or unless released fish have a high survival 
rate, it is very difficult to implement and evaluate the effects of a 
minimum size limit. Given the current gear used and the nature of 
fishing for PBF in the EPO, NMFS is not convinced, at this time, that 
size limits would be an effective management tool for recreational 
fisheries that catch PBF in the EPO, or that they would be accepted by 
the IATTC and other PBF fishing nations.
    Lastly, NMFS shares CBD's interest in ending overfishing and is 
pleased to report progress on the adoption and implementation of 
meaningful measures to both aid in the rebuilding of the PBF stock and 
to address the relative impacts of the U.S. fleet. In October 2014, the 
IATTC adopted Resolution C-14-06 (Measures for the Conservation and 
Management of Pacific Bluefin Tuna in the Eastern Pacific Ocean, 2015-
2016), which included a 40 percent reduction in the commercial catch 
limits for 2015 and 2016 compared to the 2014 level. NMFS published a 
rule to implement these catch limits for the U.S. commercial sector on 
July 8, 2015 (80 FR 38986). On July 28, 2015, NMFS implemented a 
reduction in the daily PBF bag limit from 10 to 2 PBF and a reduction 
in the maximum multi-day possession limit from 30 to 6 PBF for U.S. 
West Coast recreational fisheries (80 FR 38986), based on the Pacific 
Council's recommendation. NMFS estimates that this action will result 
in an approximately 30 percent reduction in U.S. recreational catch. 
These reductions in commercial and recreational catch of PBF are 
consistent with IATTC scientific staff advice.
    Petition Request 2: CBD requested that NMFS amend the HMS FMP to 
establish specific values for reference points, such as maximum fishing 
mortality threshold (MFMT) and the minimum stock size threshold (MSST), 
for PBF. CBD asserted that specific values are essential to science-
based management, and that ``[t]he lack of specific values for PBF 
reference points has already crippled scientists' ability to provide 
conservation advice.''
    Response to Request 2: NMFS agrees with CBD that reference points 
assist in science-based management. Given the availability of 
subsequent years of PBF stock assessments, continued work to evaluate 
reference points, and the Pacific Council's upcoming biennial 
management cycle, NMFS encourages the Council to consider the adequacy 
of the FMP reference points and/or proxies for the PBF stock. As 
described in paragraph (b)(2)(iv) of the National Standard 1 
guidelines, reference points include status determination criteria 
(SDC) such as MFMT and MSST or their proxies, maximum sustainable yield 
(MSY), acceptable biological catch (ABC), and ACL. As discussed 
earlier, because PBF is an internationally assessed and managed stock 
and meets the international exemption criteria of the National Standard 
1 guidelines, an ABC and ACL was not included in the HMS FMP. However, 
the HMS FMP includes SDC and an estimate for MSY based on a mean of 
stock-wide catches from 1995 to 1999. The reference points of the HMS 
FMP are considered guideposts for managing the PBF stock and require 
being able to determine and monitor the effects of fishing. 
Nonetheless, the effects of fishing are often difficult to determine 
for HMS species like PBF. For example, trends in catch and effort may 
reflect more than abundance (e.g., fishing success may be affected by 
schooling behavior and/or environmental effects on the availability of 
species). Though SDC are included in the HMS FMP, specific values for 
MFMT and MSST have not been identified for PBF. Rather, NMFS uses these 
guideposts in concert with other available biological reference points 
to evaluate the status of the PBF stock.
    NMFS determined stock status conditions of PBF based on the stock 
assessments of the International Scientific Committee for Tuna and 
Tuna-like Species in the North Pacific (ISC) (e.g., 78 FR 41033, July 
9, 2013; 80 FR 12621, March 10, 2015), the primary scientific body that 
routinely conducts stock assessments on temperate tuna and tuna-like 
species for the North Pacific. Its PBF Working Group (PBFWG) is 
responsible for conducting PBF stock assessments; it annually reports 
on stock status and provides conservation advice. Despite the fact that 
reference points have not yet been adopted by the IATTC or the WCPFC, 
the PBFWG routinely reports stock size and fishing mortality relative 
to a range of biological reference points (e.g., ISC, 2014). NMFS 
considers these PBF assessments to be the best scientific information 
available for determining PBF stock status under the MSA and for 
notifying the respective Councils of their responsibilities under MSA 
section 304(i). NMFS works with the Pacific Council to ensure that 
results of international assessments and status updates for management 
unit stocks of the HMS FMP, including PBF, are routinely made available 
to the public in the Stock Assessment and Fishery Evaluation reports.
    Ideally, there would be continuity in reference points used for 
international and domestic management of fishing on the PBF stock. 
However, the Pacific Council and NMFS are not required to adopt 
reference points that are identical to the reference points adopted by 
the IATTC or WCPFC. Further, the lack of internationally agreed upon 
reference points for PBF should not preclude the Pacific Council from 
developing or refining reference points and/or proxies in accordance 
with National Standard 1.
    Request 3 (not part of the petition for rulemaking): Aside from the 
petition for rulemaking discussed above, CBD also cited section 304(i) 
of the MSA and requested that NMFS develop and submit recommendations 
to the Secretary of State and Congress for international actions that 
will end overfishing in the fishery and rebuild the PBF stock. 
Specifically, CBD provided the following recommendations: (1) Establish 
a high seas moratorium on all fishing, (2) implement a Pacific-wide 
minimum size for PBF catch; and (3) achieve a steep reduction in PBF 
quota for all countries to meet rebuilding targets that are based on 
established reference points. NMFS addresses each of these topics 
below.
    Response to Request 3: This request was not a part of CBD's 
petition for rulemaking under the MSA, and

[[Page 39216]]

therefore is not being referred to the Pacific Council for further 
consideration. Nonetheless, NMFS found merit in certain aspects of 
CBD's request for additional international recommendations. NMFS' 
response to these additional requests is included below.
    First, section 304(i)(2)(B) of the MSA, cited by CBD, requires the 
appropriate fishery management councils, and not NMFS,\1\ to develop 
recommendations to the Secretary of State and Congress to end 
overfishing and rebuild overfished stocks. As stated earlier, the 
Pacific Council had already provided their recommendations for 
international actions to NMFS on April 1, 2014, thereby addressing 
their obligations under section 304(i)(2)(B) of the MSA. NMFS acted on 
the Council's recommendations when providing support to the U.S. 
Delegations for both the IATTC and WCPFC.
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    \1\ Except for Atlantic highly migratory species, which are 
managed directly by NMFS.
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    As for CBD's requests for NMFS to make specific recommendations to 
Congress and the State Department, NMFS is not convinced at this time 
that either closing the high seas to fishing or establishing size 
limits for PBF would be effective management tools for rebuilding the 
PBF stock or serving national interests. The conservation benefits of 
closing the high seas to fishing, at least in terms of changes in total 
catch, will likely be determined by the degree of movement of targeted 
species, as well as the mobility of vessels and opportunities to 
exploit the stock in alternative areas (Davies et al., 2012). 
Furthermore, most of the commercial catches of PBF in the EPO are taken 
by purse seiners and nearly all of those catches have not been made on 
the high seas; instead, most have occurred west of Baja California and 
California, within about 100 nautical miles of the coast, between about 
23[deg] N. and 35[deg] N. (IATTC, 2014). Similarly, most of the 
recreational PBF catch occurs in the EEZs of Mexico and the United 
States. In the western Pacific Ocean, PBF is primarily caught from 
Taiwan to Hokkaido, with troll, purse seine, trap, drift net, and other 
gear in coastal or nearshore areas. Pacific-wide catches of PBF on the 
high seas are primarily taken by the longline fleets of Japan, Korea, 
and Chinese Taipei. However, these fleets catch small amounts of PBF on 
the high seas in comparison to catches from other fishing grounds 
(Bayliff, 2000; ISC, 2015).
    Lastly, NMFS remains committed to working with the U.S. Delegations 
to the IATTC and WCPFC to promote Pacific-wide conservation and 
management measures, a rebuilding plan, and a long-term management 
framework with appropriate and compatible reference points. As 
previously mentioned, both RFMOs adopted (and NMFS implemented) more 
restrictive measures for 2015 and 2016 than in previous resolutions. 
The ISC evaluated these measures in the context of future stock 
assessments, spawning stock biomass projections, and progress towards 
the provisional multi-annual rebuilding plan for PBF adopted by the 
WCPFC. The United States submitted a proposal to the 89th Meeting of 
the IATTC to aid in establishing a rebuilding plan for PBF that 
includes a paragraph about establishing reference points and harvest 
control rules for the long term management of PBF. The United States 
also submitted a proposal for a rebuilding plan and a proposal for a 
precautionary management framework for PBF to the 11th Meeting of the 
Northern Committee, which is a subsidiary body of the WCPFC that 
develops recommendations for PBF management measures. These proposals 
can be found here: https://www.wcpfc.int/system/files/NC11-DP-03%20%28PBF%20rebuilding%20plan%29.pdf (IATTC proposal) and https://www.wcpfc.int/meetings/11th-regular-session-northern-committee 
(Northern Committee proposals). While neither proposal was adopted, the 
United States plans to submit proposals intended to contribute to the 
rebuilding of the stock at the upcoming IATTC and Northern Committee 
meetings in 2016.

References

Bayliff, W. 2000. Status of Bluefin Tuna in the Pacific Ocean. 
Inter-American Tropical Tuna Commission. La Jolla, CA, USA.
Davies, T.K., S. Martin, C. Mees, E. Chassot and D.M. Kaplan. 2012. 
A review of the conservation benefits of marine protected areas for 
pelagic species associated with fisheries. ISSF Technical Report 
2012-02. International Seafood Sustainability Foundation, McLean, 
Virginia, USA. 36 pp.
Inter-American Tropical Tuna Commission (IATTC). 2014. Pacific 
Bluefin Tuna. IN: Fishery Status Report No. 12: Tuna and Billfishes 
in the Eastern Pacific Ocean, pp. 101-107. Inter-American Tropical 
Tuna Commission, La Jolla, California 2014.
International Scientific Committee for Tuna and Tuna-like Species in 
the North Pacific Ocean (ISC). 2014. Stock Assessment for Pacific 
Bluefin Tuna in the Pacific Ocean in 2014. Report of the Pacific 
Bluefin Tuna Working Group, International Scientific Committee for 
Tuna and Tuna-like Species in the North Pacific Ocean.
ISC. 2015. Report of the Fifteenth Meeting of the International 
Scientific Committee for Tuna and Tuna-like Species in the North 
Pacific Ocean. Plenary Session. July 15-20, 2015; Kona, Hawaii.
Maunder, M. and A. Aires-da-Silva. 2014. Developing Conservation 
Measure for Bluefin Tuna in the Eastern and Western Regions of the 
Pacific Ocean: Factors to Consider and Fishery Impact Analysis. 
Document IATTC -87 Inf-B, IATTC, LA Jolla, CA. 20 pp.
Stohs, S. 2016. Regulatory Impacts of Recreational Fishery 
Management Alternatives for North Pacific Bluefin Tuna. Working 
Paper; NMFS Southwest Fisheries Science Center, La Jolla, CA.

    Authority: 16 U.S.C. 1801 et seq.

    Dated: June 10, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2016-14239 Filed 6-13-16; 4:15 pm]
 BILLING CODE 3510-22-P