[Federal Register Volume 83, Number 91 (Thursday, May 10, 2018)]
[Proposed Rules]
[Pages 21748-21761]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09896]



[[Page 21748]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 180209155-8399-01]
RIN 0648-BH77


International Fisheries; Western and Central Pacific Fisheries 
for Highly Migratory Species; Fishing Limits in Purse Seine and 
Longline Fisheries, Restrictions on the Use of Fish Aggregating Devices 
in Purse Seine Fisheries, and Transshipment Prohibitions

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 
implement recent decisions of the Commission for the Conservation and 
Management of Highly Migratory Fish Stocks in the Western and Central 
Pacific Ocean (WCPFC or Commission). These decisions include the 
following management measures: limits on fishing effort by U.S. purse 
seine vessels in the U.S. exclusive economic zone 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); restrictions regarding the use of fish aggregating 
devices (FADs) for U.S. purse seine fishing vessels; limits on the 
catches of bigeye tuna by U.S. longline vessels in the Convention area; 
prohibitions on U.S. vessels used to fish for highly migratory species 
from engaging in transshipment in a particular area of the high seas 
(the Eastern High Seas Special Management Area or EHSSMA); and removal 
of existing reporting requirements for vessels transiting the EHSSMA. 
The rule also would make corrections to outdated cross references in 
existing regulatory text. This action is necessary to satisfy the 
obligations of the United States under the Convention, to which it is a 
Contracting Party.

DATES: Comments on the proposed rule must be submitted in writing by 
May 25, 2018.

ADDRESSES: You may submit comments on the proposed rule and the 
regulatory impact review (RIR) prepared for the proposed rule, 
identified by NOAA-NMFS-2018-0050, 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-2018-0050,
    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, the 2015 programmatic environmental assessment, 
and 2012 environmental assessment 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).
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to PIRO at the address listed above and 
by email to [email protected] or fax to (202) 395-5806.

FOR FURTHER INFORMATION CONTACT: Rini Ghosh, NMFS PIRO, 808-725-5033.

SUPPLEMENTARY INFORMATION:

Background on the Convention

    The Convention focused 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 Western and Central 
Pacific Ocean (WCPO). To accomplish this objective, the Convention 
established the Commission, 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 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 website 
at: www.wcpfc.int/doc/convention-area-map.

Background on the Conservation and Management Measures

    This proposed rule would implement specific provisions of two 
recent WCPFC decisions. The first decision, Conservation and Management 
Measure (CMM) 2017-01, ``Conservation and Management Measure for 
Bigeye,

[[Page 21749]]

Yellowfin, and Skipjack Tuna in the Western and Central Pacific 
Ocean,'' was adopted by the Commission at its fourteenth regular annual 
session, in December 2017, and went into effect February 2018. The 
provisions of CMM 2017-01 are described in more detail below. The 
second decision, CMM 2016-02, ``Conservation and Management Measures 
for Eastern High Seas Pocket Special Management Area,'' revises a 
previous measure regarding the EHSSMA so that vessels are no longer 
required to provide reports to the Commission when entering and exiting 
the EHSSMA and also prohibits all transshipment activities in the area 
starting on January 1, 2019.
    CMM 2017-01 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). The stated purpose 
of CMM 2017-01 is to provide for a robust transitional management 
regime that ensures the sustainability of bigeye tuna, yellowfin tuna, 
and skipjack tuna in the WCPO pending the Commission's establishment of 
harvest strategies.
    In order to achieve that stated purpose, CMM 2017-01 includes 
provisions for longline and purse seine vessels that would be 
implemented in this proposed rule. For longline vessels, the CMM 
includes specific bigeye tuna catch limits for several WCPFC members, 
including the United States. The CMM provides for a limit of 3,554 
metric tons (mt) of bigeye tuna that may be caught by U.S. longline 
vessels fishing in the Convention Area for calendar year 2018, which is 
the same as the U.S. limit in 2016, as specified in earlier WCPFC 
decisions. As in previous WCPFC CMMs on tropical tunas, CMM 2017-01 
also requires any overage of the catch limit to be deducted from the 
following year's limit.
    Also as in previous CMMs, no limits apply to the longline fisheries 
of the U.S. Participating Territories of American Samoa, Guam, and 
CNMI. In addition, CMM 2017-01 includes a new provision for U.S. 
longline vessels, stating that catch and effort of U.S.-flagged vessels 
operating under agreements with the U.S. Participating Territories 
shall be attributed to the U.S. Participating Territories.
    For purse seine vessels, CMM 2017-01 includes several restrictions 
on the use of FADs and provides for specific limits on fishing effort.
    The first FAD restriction is similar to the one included in 
previous WCPFC decisions and requires purse seine vessels to be 
prohibited from fishing on FADs on the high seas and in the exclusive 
economic zones (EEZs) in the Convention Area between the latitudes of 
20[deg] N and 20[deg] S from July 1 through September 30 of 2018. The 
second FAD restriction requires WCPFC members to establish an 
additional consecutive two-month FAD prohibition period on the high 
seas in the Convention Area in 2018, in either April and May or 
November and December. CMM 2017-01 also includes provisions encouraging 
WCPFC members to use non-entangling design and materials as well as 
biodegradable materials in the construction of FADs. Finally, CMM 2017-
01 includes a provision requiring that each purse seine vessel have no 
more than 350 drifting FADs with activated instrumented buoys deployed 
at sea in the Convention Area at any one time through February 10, 
2021. Under the CMM, an instrumented buoy is defined as a buoy with a 
clearly marked reference number allowing its identification and 
equipped with a satellite tracking system to monitor its position. The 
CMM states that the buoy shall be activated exclusively on board the 
vessel.
    Under CMM 2017-01, WCPFC members must also limit their purse seine 
vessels to specific fishing effort limits. The limits on U.S. purse 
seine fishing effort detailed in CMM 2017-01 are similar to limits in 
previous WCPFC decisions. The limits are 558 fishing days in the U.S. 
EEZ and 1,270 fishing days on the high seas in the Convention Area 
between the latitudes of 20[deg] N and 20[deg] S for each of the 
calendar years 2018-2020. However, CMM 2017-01 also includes a new 
provision for 2018 only that allows the United States to transfer 100 
fishing days from its limit in the U.S. EEZ to its limit on the high 
seas, and if the U.S. EEZ limit is reached by October 1, 2018, the U.S. 
EEZ limit will be increased by an additional 100 fishing days, with the 
expectation that the catch taken by U.S. flagged vessels and landed in 
American Samoa for the American Samoa canneries is no less than the 
volume landed in 2017 plus an additional 3,500 short tonnes. This new 
provision was intended to alleviate the economic hardship faced by 
American Samoa and its canneries when U.S. purse seine fishing limits 
are reached, resulting in fishery closures.
    CMM 2017-01 also includes provisions for purse seine vessels that 
were in previous WCPFC decisions and that have been implemented by NMFS 
in regulations that continue in force. These provisions include 
requirements for purse seine vessels to retain all catch of bigeye 
tuna, yellowfin tuna, and skipjack tuna, for observer coverage on purse 
seine vessels, and for vessel monitoring system requirements for purse 
seine vessels during the FAD closure periods.

Proposed Action

    The elements of the proposed rule are detailed below. The 
administrative changes that would be made to correct outdated 
references in existing regulatory text are described at the end.
    As described above, some of the provisions in CMM 2017-01 apply 
only to calendar year 2018, while others are applicable until February 
10, 2021. Because the Commission likely will continue to implement 
similar management measures regarding FADs, purse seine effort limits, 
and longline bigeye tuna catch limits beyond 2018, and to avoid a lapse 
in the management of the fishery, NMFS is proposing to implement all of 
the elements of CMM 2017-01 in this proposed rule under the authority 
of the WCPFC Implementation Act, 16 U.S.C. 6904(a), so that they will 
remain effective until they are replaced or amended. Because the 
Commission developed CMM 2017-01 as generally a three-year conservation 
and management measure (2018-2020), the supporting analyses for this 
rule covers a three-year time period, understanding that these analyses 
would need to be supplemented should the elements of the rule remain 
effective for more than three years.

Longline Bigeye Tuna Catch Limits

    The Commission-adopted longline bigeye tuna catch limit for the 
United States for 2018 is 3,554 mt. As stated above, CMM 2017-01 
reiterates the provision of earlier CMMs that states that any catch 
overage in a given year shall be deducted from the catch limit for the 
following year. The longline bigeye tuna catch limit for the United 
States in 2017 was 3,138 mt (see Interim Rule; 82 FR 36341, published 
August 4, 2017). Based on preliminary estimates, NMFS believes that the 
2017 limit might have been exceeded, but the amount of the overage, if 
it occurred, is not yet known. Thus, NMFS is proposing a calendar year 
catch limit of 3,554 mt that would remain effective until replaced. 
However, for 2018, it is possible that this limit would be adjusted 
downward to account for any overage in 2017; the limit would similarly 
be adjusted downward in future years, should any overages occur. NMFS 
will determine the exact amount of the overage prior to publication of 
the final rule and include the exact amount of the 2018 limit in the 
final rule.

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    The calendar year longline bigeye tuna catch limit will apply only 
to U.S.-flagged longline vessels operating as part of the U.S. longline 
fisheries. The limit will not apply to U.S. longline vessels operating 
as part of the longline fisheries of American Samoa, 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 2017-01 
and with regulations issued by NMFS to implement bigeye tuna catch 
limits in U.S. longline fisheries as described below, the catch limit 
is measured in terms of retained catches--that is, bigeye tuna that are 
caught by longline gear and retained on board the vessel.
1. Announcement of the Limit Being Reached
    As set forth under the existing regulations at 50 CFR 300.224(e), 
if NMFS determines that the limit is expected to be reached in a 
calendar year, NMFS will publish a notice in the Federal Register to 
announce specific fishing restrictions that will be effective from the 
date the limit is expected to be reached until the end of the calendar 
year. NMFS will 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 will be made available to the public, such as 
by posting on a website, to help vessel owners and operators plan for 
the possibility of the limit being reached.
2. Restrictions After the Limit Is Reached
    As set forth under the existing regulations at 50 CFR 300.224(f), 
if the limit is reached, the restrictions that will be in effect will 
include the following:
    a. Retain on board, transship, or land bigeye tuna: Starting on the 
effective date of the restrictions and extending through December 31 of 
the given calendar year, it will 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, except as follows:
    First, any bigeye tuna already on board a fishing vessel upon the 
effective date of the restrictions can 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 is not subject to this 14-day landing 
restriction, so these vessels will be able to land bigeye tuna more 
than 14 days after the restrictions become effective.
    Second, bigeye tuna captured by longline gear can be retained on 
board, transshipped, and/or landed if they are caught by a fishing 
vessel registered for use under a valid American Samoa Longline Limited 
Access Permit, or if they are landed in American Samoa, Guam, or 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 can be retained on 
board, transshipped, and/or landed if they are caught by a vessel that 
is included in a specified fishing agreement under 50 CFR 665.819(d), 
in accordance with 50 CFR 300.224(f)(iv).
    b. Transshipment of bigeye tuna to certain vessels: Starting on the 
effective date of the restrictions and extending through December 31 of 
the calendar year, it will be prohibited to transship bigeye tuna 
caught in the Convention Area by longline gear 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.
    c. 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, two additional, related 
prohibitions would be in effect starting on the effective date of the 
restrictions and extending through December 31 of the calendar year. 
First, vessels are 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 that exceptional case, 
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, specifically, the hooks, branch 
or dropper lines, and floats used to buoy the mainline must be stowed 
and not available for immediate use, and any power-operated mainline 
hauler on deck must be covered in such a manner that it is not readily 
available for use. These two prohibitions do not apply to the following 
vessels: (1) Vessels on declared shallow-setting trips pursuant to 50 
CFR 665.803(a); and (2) 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 and 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)(iv).

FAD Restrictions

    In accordance with CMM 2017-01, NMFS proposes to establish a FAD 
prohibition period from July through September in each calendar year in 
the Convention Area between the latitudes of 20[deg] N and 20[deg] S 
(inclusive of the EEZs and high seas in the Convention Area). Regarding 
the additional consecutive two-month FAD prohibition period on the high 
seas in the Convention Area, after considering the objectives of CMM 
2017-01, the expected economic impacts on U.S. fishing operations and 
the nation as a whole, and expected environmental and other effects, 
NMFS expects that a high seas FAD prohibition period in November and 
December may be somewhat more cost-effective than a FAD prohibition 
period in April and May. For this reason, NMFS is proposing to 
implement the high seas FAD prohibition period in November and December 
for each calendar year. We specifically seek public comment on which 
option is more appropriate. A comparison of the two options' expected 
direct economic impacts on affected fishing businesses is provided in 
the RIR.
    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

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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.
    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 
calendar year, and on the high seas in November and December, owners, 
operators, and crew of fishing vessels of the United States equipped 
with purse seine gear shall not do 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.
    This proposed rule would revise the introductory paragraph of 50 
CFR 300.223(b)(1) to make it more clear that the prohibitions apply 
only to owners, operators, and crew of purse seine fishing vessels. 
NMFS has recently received inquiries as to whether the prohibitions 
apply to the owners, operators, and crew of vessels using other gear 
types. This proposed rule would also make a technical change to 50 CFR 
300.223(b)(1)(iv)(B) to clarify that, during the FAD prohibition 
periods, a FAD may be removed from the water to be repaired, cleaned, 
maintained, or otherwise serviced, provided that it is not returned to 
the water. This minor change ensures consistency with the introductory 
language in that paragraph.
    NMFS has recently issued final regulations to implement provisions 
of a resolution adopted by the Inter-American Tropical Tuna Commission 
(IATTC) that includes restrictions on the number of FADs with activated 
instrumented buoys for each purse seine vessel deployed at sea in the 
IATTC area at any one time (see Final Rule; 83 FR 15503, published 
April 11, 2018). In order to provide some consistency to the regulated 
community, NMFS is proposing similar regulations in this rule to 
implement the limit regarding FADs with activated instrumented buoys 
specified in CMM 2017-01.
    Under the proposed rule, an active FAD is defined as a FAD that is 
equipped with a buoy with a clearly marked reference number allowing 
its identification and equipped with a satellite tracking system to 
monitor its position, as specified by the definition of instrumented 
buoy in CMM 2017-01.
    CMM 2017-01 specifies that the buoy shall be activated exclusively 
on board the vessel. In order to implement this provision, the proposed 
rule specifies that the tracking equipment must be turned on while the 
FAD is onboard the vessel and before it is deployed in the water. In 
accordance with CMM 2017-01, under the proposed rule, each U.S. purse 
seine vessel would have a limit of 350 active drifting FADs in the 
Convention Area at any one time.

Purse Seine Fishing Effort Limits

    In the past, NMFS has implemented the U.S. purse seine fishing 
effort limits on the high seas and in the U.S. EEZ adopted by the 
Commission as a single combined limit in a combined area of the high 
seas and U.S. EEZ termed the Effort Limit Area for Purse Seine or 
ELAPS. NMFS' reasoning for combining the high seas and U.S. EEZ limits 
was that it afforded more operational flexibility to the fleet and 
there are no substantial differences in terms of effects to living 
marine resources for treating the two areas separately or combined so 
long as the overall effort remained equal or less than the sum of the 
two limits. For this proposed rule, in light of CMM 2017-01's provision 
allowing the United States to transfer some of its EEZ days to the high 
seas, there is a need to separately account for the U.S. high seas 
limit and the U.S. EEZ limit. Thus, NMFS will no longer combine the two 
limits under a single limit. As stated above, CMM 2017-01 specifies a 
limit of 1,270 fishing days per year for the high seas and a limit of 
558 fishing days per year for the U.S. EEZ. The proposed rule would 
establish a limit of 1,370 fishing days on the high seas and a separate 
limit of 458 fishing days in the U.S. EEZ. These numbers utilize the 
provision of CMM 2017-01 provided to alleviate the economic hardship 
experienced by American Samoa during a fishery closure and transfer 100 
fishing days from the U.S. EEZ effort limit to the high seas effort 
limit.
    CMM 2017-01 also specifies that the United States may add an 
additional 100 fishing days to its annual purse seine fishing effort 
limit in the U.S. EEZ if the limit in the U.S. EEZ is reached by 
October 1, 2018. As discussed above, NMFS is proposing to to implement 
the elements of the rule so they are effective until they are amended 
or replaced. Thus, under the proposed rule, when NMFS expects that the 
U.S. EEZ effort limit would be reached by October 1, NMFS would publish 
a notice in the Federal Register, no later than seven days prior to 
October 1, to increase the U.S. EEZ effort limit by 100 fishing days 
for that calendar year.
    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.
    NMFS will monitor the number of fishing days spent in the U.S. EEZ 
and on the high seas using data submitted in logbooks and other 
available information. If and when NMFS determines that a limit 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 area where the limit is expected to be reached will be closed 
starting on a specific future date and will remain closed until the end 
of the calendar year. NMFS will publish that notice at least seven days 
in advance of the closure date. Starting on the announced closure date, 
and for the remainder of

[[Page 21752]]

calendar year, it will be prohibited for U.S. purse seine vessels to 
fish in the area where the limit is expected to be reached, except that 
such vessels would not be prohibited from bunkering (refueling) during 
a fishery closure. NMFS published an interim rule on August 25, 2015 
(see 80 FR 51478) to remove the restriction that prohibited U.S. purse 
seine vessels from conducting bunkering during fishery closures of the 
ELAPS. NMFS is proposing to continue those regulations as part of this 
proposed rule so that bunkering would be allowed during any fishery 
closures of the U.S. EEZ or high seas due to reaching a limit in a 
given calendar year.
    Under existing regulations at 50 CFR 300.218(g), NMFS can direct 
U.S. purse seine vessel owners and operators to provide daily FAD 
reports, specifying the number of purse seine sets made on FADs during 
that day. NMFS promulgated this regulation to help track a limit on the 
number of FAD sets that was applicable in previous years but recognizes 
that this information is also valuable to help predict when a fishing 
effort limit is expected to be reached with greater certainty. Thus, 
under this proposed rule, NMFS would revise the existing regulations so 
that NMFS can direct U.S. purse seine vessel owners and operators to 
provide reports on the fishing activity of the vessel (e.g., setting, 
transiting, searching), location, and type of set, in order to obtain 
better data for tracking the fishing effort limits.

Eastern High Seas Special Management Area

    This proposed rule would remove the requirements at 50 CFR 
300.222(oo) and 50 CFR 300.225 for U.S. commercial fishing vessels to 
provide reports prior to entering or exiting the EHSSMA. This proposed 
rule would also prohibit all U.S. commercial fishing vessels fishing 
for HMS from engaging in transshipments in the EHSSMA, beginning on 
January 1, 2019.

Administrative Changes to Existing Regulations

    The regulations at 50 CFR 300.217(b) and 300.218(a)(2)(v) contain 
outdated cross references that would be corrected by this proposed 
rule. In Sec.  300.217, paragraph (b)(1) would be revised to provide a 
cross reference to Sec.  300.336(b)(2), not Sec.  300.14(b), and in 
Sec.  300.218(a)(2)(v), the cross reference would be to Sec.  
300.341(a) instead of to Sec.  300.17(a) and (b). Sections 300.14(b) 
and 300.17(a) and (b) no longer exist and have been replaced through a 
new regulatory action implementing provisions of the High Seas Fishing 
Compliance Act (16 U.S.C. 5501 et seq.).

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. Section 304(b) of the MSA provides for a 15 day comment 
period for these types of fishery rules. Additionally, NMFS finds 
``good cause'' under the Administrative Procedure Act that a longer 
notice and comment period would be contrary to the public interest. 5 
U.S.C. 553(b)(B). As described above, the first FAD prohibition period 
would begin on July 1, 2018. Providing for more than 15 days advance 
notice and public comment on the proposed rule increases the risk that 
the Commission's FAD prohibition period will become effective prior to 
the effective date of the final rule, possibly resulting in the United 
States' non-compliance with its international obligations. Thus, in 
order to provide the public with the opportunity to comment on this 
proposed rule while ensuring that the agency has sufficient time to 
consider any public comments and publish a final rule that is effective 
by July 1, 2018, NMFS is providing the public with a 15-day comment 
period on this proposed rule.

Coastal Zone Management Act (CZMA)

    NMFS determined that this action is consistent to the maximum 
extent practicable with the enforceable policies of the approved 
coastal management program of American Samoa, the Commonwealth of the 
Northern Mariana Islands (CNMI), Guam, and the State of Hawaii. 
Determinations to Hawaii and each of the Territories were submitted on 
March 12, 2018, for review by the responsible state and territorial 
agencies under section 307 of the CZMA.

Executive Order 12866

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866. This proposed rule is not expected 
to be an Executive Order 13771 regulatory action because this proposed 
rule is not significant under 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 as well as its 
objectives, 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

    For Regulatory Flexibility Act purposes only, NMFS has established 
a small business size standard for businesses, including their 
affiliates, whose primary industry is commercial fishing (see 50 CFR 
200.2). A business primarily engaged in commercial fishing (NAICS code 
114111) 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 $11 
million for all its affiliated operations worldwide.
    The proposed rule would apply to owners and operators of U.S. 
commercial fishing vessels used to fish for HMS in the Convention Area, 
including longline vessels (except those operating as part of the 
longline fisheries of American Samoa, CNMI, or Guam), purse seine 
vessels, and albacore troll vessels. Based on the number of U.S. 
vessels with WCPFC Area Endorsements, which are required to fish on the 
high seas in the Convention Area, the estimated numbers of affected 
longline, purse seine, and albacore troll fishing vessels is 163, 37, 
and 20, respectively.
    Based on limited financial information about the affected fishing 
fleets, and using individual vessels as proxies for individual 
businesses, NMFS believes that all of the affected longline and 
albacore troll vessels, and slightly more than half of the vessels in 
the purse seine fleet, are small entities as defined by the RFA; that 
is, they are independently owned and operated and not dominant in their 
fields of operation, and have annual receipts of no more than $11.0 
million. Within the purse seine fleet, analysis of average revenue, by 
vessel, for the three years of 2014-2016 reveals that average annual 
revenue among vessels in the fleet was about $10.2 million, and the 
three-year annual averages were less than the $11 million threshold for 
22 vessels in the fleet.

Recordkeeping, Reporting, and Other Compliance Requirements

    The reporting, recordkeeping and other compliance requirements of 
this proposed rule are described earlier in the preamble. The classes 
of small entities subject to the requirements and

[[Page 21753]]

the types of professional skills necessary to fulfill the requirements 
are described below for each of the first four elements of the proposed 
rule. The fifth element, administrative changes to existing 
regulations, is not considered further in this IRFA because it would be 
of a housekeeping nature and not have any substantive effects on any 
entities.
1. Longline Bigeye Tuna Catch Limits
    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 of 3,554 mt 
(reduced by the amount of any overages in the preceding year) is 
reached in any of the years 2018-2020, 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 any of the 
years 2018-2020 and the restrictions on retaining, landing, and 
transshipping bigeye tuna are imposed for portions of those years. 
These costs cannot be projected quantitatively with any certainty. The 
proposed annual limit of 3,554 mt 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 2009-2016, when limits were in place, there appears to be a 
relatively high likelihood of the proposed limits being reached in 
2018-2020. In 2015, for example, which saw exceptionally high catches 
of bigeye tuna, 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 Plan for Pelagic Fisheries of the Western Pacific Region 
(Pelagics FEP) (50 CFR 665.819). In 2016, the limit of 3,554 mt was 
estimated to have been reached by September 9, 2016, and in 2017, the 
limit of 3,138 mt was estimated to have been reached by September 1, 
2017. Thus, if bigeye tuna catch patterns in 2018-2020 are like those 
in 2005-2008, the limit would be reached in the fourth quarter of the 
year, and if they are like those in 2015, 2016, or 2017, the limit 
would be reached in the third quarter of the year.
    If the bigeye tuna limit is reached before the end of any of the 
years 2018-2020 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 the years 2018-2020 would be 
5,000 mt, slightly more than the average in 2005-2008. Under this 
scenario, imposition of annual limits of 3,554 mt would result in 29 
percent less bigeye tuna being caught each year 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 2018-2020 to entities that participate exclusively in 
the deep-set fishery would be approximately 29 percent less than under 
no action. 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 anual catches of 5,000 mt, each vessel would 
catch 39 mt/yr, on average. Reductions of 29 percent in 2018-2020 as a 
result of the proposed limits would be about 11 mt per year. 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 per year, on average.
    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 any of the years 2018-
2020, 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

[[Page 21754]]

that point in any of the years 2018-2020 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 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, because 
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 23 in 2016. 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 
2011-2017 (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

[[Page 21755]]

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 years. In 
2015, 2016, and 2017 the fishery was closed but then reopened when 
agreements 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 IATTC. 
NMFS has issued a final rule to implement the IATTC's most recent 
resolution on the management of tropical tuna stocks (83 FR 15503; 
April 11, 2018). The final rule establishes an annual limit of 750 mt 
on the catch of bigeye tuna in the EPO by vessels at least 24m in 
length in each of the years 2018-2020. Annual longline bigeye tuna 
catch limits have been in place for the EPO in most years since 2004. 
Since 2009, when the limit was 500 mt, it was reached in 2013 (November 
11), 2014 (October 31), and 2015 (August 12). In 2016 NMFS forecasted 
that the limit would be reached July 25 and subsequently closed the 
fishery, but later determined that the catch limit had not been reached 
and re-opened the fishery on October 4, 2016 (81 FR 69717). The limit 
was not reached in 2017.
    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 EPO limits in 
2018-2020 are likely to be reached. If it is reached, this alternative 
opportunity would not be available for large longline vessels, which 
constitute about a quarter of the fleet.
    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 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, 2014, 2015, 
and 2016 the proportions of the fishery's annual bigeye tuna catches 
that were captured in the EPO were about 16, 27, 23, 19, 36, 35, 47, 
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 2018-
2020--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 2020.
    The potential economic effects identified above would vary among 
individual business entities, but it is not

[[Page 21756]]

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 per year, on average. 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 2018-2020 
and the terms of the agreements are such that the U.S. longline fleet 
is effectively unconstrained by the catch limits).
2. FAD Restrictions
    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 throughout the 
Convention Area from July 1 through September 30 in each of the years 
2018-2020 and FAD prohibition periods just on the high seas in the 
Convention Area from November 1 through December 31 in each of the same 
years. There would also be a limit of 350 active FADs that may be 
deployed per vessel at any given time. Anecdotal information from the 
U.S. purse seine fishing industry indicates that U.S. purse seine 
vessels have not ever deployed more than 350 active FADs at any given 
time, so NMFS does not expect that the limit would be constraining or 
otherwise affect the behavior of purse seine operations, and it is not 
considered further in this IRFA.
    Fulfillment of the element's requirements is not expected to 
require any professional skills that the vessel owners and operators do 
not already possess. The costs of complying with the requirements 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 areas and during 
those periods, vessels would be able to set only on free, or 
``unassociated,'' schools.
    With respect to the three-month FAD closure throughout the 
Convention Area: Assuming that sets would be evenly distributed through 
the year, the number of annual FAD sets would be expected to be about 
three-fourths the number that would occur without a seasonal FAD 
closure. For example, during 2014-2016, the proportion of all sets that 
were made on FADs when FAD setting was allowed was 50 percent. As an 
indicative example, if the fleet makes 8,000 sets in a given year 
(somewhat more than the 2014-2016 average of 7,420 sets per year) and 
50 percent of those are FAD sets, it would make 4,000 FAD sets. If 
there is a three-month closure and 50 percent of the sets outside the 
closure are FAD sets, and sets are evenly distributed throughout each 
year, the annual number of FAD sets would be 3,000. This can be 
compared to the estimated 2,494 annual FAD sets that were made in 2014-
2016, on average, when there were three-month FAD closures.
    With respect to the two-month high seas FAD closure: The effects of 
this element are difficult to predict. If the high seas are closed to 
all purse seine fishing during November-December as a result of the 
fishing effort limit being reached, the high seas FAD closure during 
those two months would have no additional effect whatsoever. If the 
high seas are not closed to fishing, the prohibition on FAD setting 
would make the high seas less favorable for fishing than they otherwise 
would be, because only unassociated sets would be allowed there. It is 
not possible to characterize how influential that factor would be, 
however. Thus, it is not possible to predict the effects in terms of 
the spatial distribution of fishing effort or the proportion of fishing 
effort that is made on FADs.
    With respect to both the three-month FAD closure and two-month high 
seas FAD closure: As for the limits on fishing effort, vessel operators 
might choose to schedule their routine maintenance periods so as to 
take best advantage of the available opportunities for making FAD sets, 
such as during the FAD closures. However, the limited number of vessel 
maintenance facilities in the region might constrain vessel operators' 
ability to do this.
    It is emphasized that the indicative example given above is based 
on the assumption that the FAD set ratio would be 50 percent during 
periods when FAD sets are allowed, as well as that sets are distributed 
evenly throughout the year. These assumptions are weak from several 
perspectives, so the results should be interpreted with caution. First, 
as described above, FAD set ratios have varied widely from year to 
year, indicating that the conditions that dictate ``optimal'' FAD set 
ratios for the fleet vary widely from year to year, and cannot be 
predicted with any certainty. Second, the optimal FAD set ratio during 
open periods might depend on how long and when those periods occur. For 
example, FAD fishing might be particularly attractive soon after a 
closed period during which FADs aggregated fish but were not fished on. 
These factors are not explicitly accounted for in this analysis, but 
the 50 percent FAD ratio used in this analysis was taken from 2014-
2016, when there was a three-month FAD closure, so it is probably a 
better indicator for the action alternatives than FAD set ratios for 
years prior to 2009, when no seasonal FAD closures were in place. With 
respect to the distribution of sets through the year, the existence of 
collective limits on fishing effort might create an incentive for 
individual vessels to fish harder earlier in the year than they 
otherwise would, resulting in a ``race to fish.'' Limitations on 
fishing effort throughout the Convention Area could cause vessels to 
fish (irrespective of set type or the timing of FAD closures) harder 
earlier in a given year than they would without the limits. However, 
any such effect is not expected to be great, because most vessels in 
the fleet tend to fish virtually full time, leaving little

[[Page 21757]]

flexibility to increase fishing effort at any particular time of the 
year.
    Vessels in the U.S. WCPO purse seine fleet make both unassociated 
sets and FAD sets when not constrained by regulation, so one type of 
set is not always more valuable or efficient than the other type. Which 
set type is optimal at any given time is a function of immediate 
conditions in and on the water, but probably also of such factors as 
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). Clearly, the ability to do 
either type of set is valuable, and constraints on the use of either 
type can be expected to bring adverse economic impacts to fishing 
operations. Thus, the greater the constraints on the ability to make 
FAD sets, the greater the expected economic impacts of the action. 
Because the factors affecting the relative value of FAD sets and 
unassociated sets are many, and the relationships among them are not 
well known, it is not possible to quantify the expected economic 
impacts of the FAD restrictions. However, it appears reasonable to 
conclude the following: First, the FAD restrictions would adversely 
impact producer surplus relative to the no-action alternative. The fact 
that the fleet has made such a substantial portion of its sets on FADs 
in the past indicates that prohibiting the use of FADs in the specified 
areas and periods could bring substantial costs and/or revenue losses. 
Second, vessel operators might be able to mitigate the impacts of the 
FAD restrictions by scheduling their routine vessel and equipment 
maintenance during the FAD closures, but this opportunity might be 
constrained by the limited vessel maintenance facilities in the region.
3. Purse Seine Fishing Effort Limits
    This element of the proposed rule would not establish any new 
reporting or recordkeeping requirements, but the existing ``Daily FAD 
reports'' required at 50 CFR 300.218(g) would be slightly revised, and 
renamed ``Daily purse seine fishing effort reports'' and would slightly 
modify the type of information collected.
    There would be annual limits of 1,370 and 458 fishing days on the 
high seas and in the U.S. EEZ, respectively, in the Convention Area. In 
addition, there would be a mechanism to increase the U.S. EEZ limit in 
a given year to 558 fishing days if 458 fishing days are used by 
October 1 of that year.
    Fulfillment of this element's requirements is not expected to 
require any professional skills that the vessel owners and operators do 
not already possess. The costs of complying with the requirements are 
described below to the extent possible.
    Regarding the modification to the daily reporting requirement, the 
specific information required in the reports would be slightly modified 
from those of the existing ``Daily FAD reports,'' but the costs of 
compliance are not expected to change.
    Regarding the fishing effort limits, if and when the fishery on the 
high seas or in the U.S. EEZ is closed as a result of a limit being 
reached in any of the years 2018-2020, owners and operators of U.S. 
purse seine vessels would have to cease fishing in that area for the 
remainder of the calendar year. Closure of the fishery in either of 
those areas could thereby cause foregone fishing opportunities and 
associated economic losses if the area contains preferred fishing 
grounds during such a closure. Historical fishing rates in the two 
areas give a rough indication of the likelihood of the limits being 
reached.
    Regarding the U.S. EEZ, from 2009 through 2017 (NMFS has only 
preliminary estimates for 2017), no more than 50 percent of the 
proposed limit of 458 fishing days was ever used (and no more than the 
41 percent of the possible limit of 558 fishing days). This history 
suggests a relatively low likelihood of the proposed EEZ limit being 
reached in 2018-2020. However, the allowance for an extra 100 fishing 
days if the 458 fishing days are used by October 1 could provide an 
incentive for the fleet to use more fishing days in the EEZ than it 
otherwise would. Furthermore, this would be the first time that 
separate limits would be established for the EEZ and the high seas, so 
the incentives for individual vessels in the fleet would change. A 
minority of the fleet is authorized to fish in the U.S. EEZ (8 of the 
33 vessels currently licensed under the South Pacific Tuna Treaty 
(SPTT) \1\ have fishery endorsements on their U.S. Coast Guard 
Certificates of Documentation, which are required to fish in the U.S. 
EEZ, and 1 of the other 4 purse seine vessels with WCPFC Area 
Endorsements has a fishery endorsement), and with a separate limit for 
the U.S. EEZ, this minority might take more advantage of it than it has 
in the past.
---------------------------------------------------------------------------

    \1\ The majority of U.S. purse seine fishing activity in the 
Convention Area takes place in the waters of Pacific Island Parties 
to the SPTT (PIPs), pursuant to the terms of the SPTT.
---------------------------------------------------------------------------

    Regarding the high seas from 2009 through 2017, between 31 and 135 
percent of the proposed limit of 1,370 fishing days was used, and at 
least 100 percent was used in three of the nine years. In two years, 
2015 and 2016, the ELAPS was closed for part of the year (starting June 
15 in 2015, and September 2 in 2016), so more fishing effort might have 
occurred in those two years were there no limits. This history suggests 
a substantial likelihood of the proposed high seas limit being reached 
in any of the years 2018-2020.
    Two factors could have a substantial influence on the amount of 
fishing effort in the U.S. EEZ and on the high seas in 2018-2020: 
First, the number of fishing days available in foreign waters (the 
fleet's main fishing grounds) pursuant to the SPTT will influence the 
incentive to fish outside those waters, including the U.S. EEZ and high 
seas. Second, El Ni[ntilde]o--Southern Oscillation (ENSO) conditions 
will influence where the best fishing grounds are.
    Regarding fishing opportunities in foreign waters, in December 
2016, the United States and PIPs agreed upon a revised SPTT, and under 
this new agreement U.S. purse seine fishing businesses can purchase 
fishing days in the EEZs of the PIPs. There are limits on the number of 
such ``upfront'' fishing days that may be purchased. These limits can 
influence the amount of fishing in other areas, such as the U.S. EEZ 
and the high seas, as well as the EPO. For example, if the number of 
available upfront fishing days is relatively small, fishing effort in 
the U.S. EEZ and/or high seas might be relatively great. In fact, the 
number of upfront days available for the Kiribati EEZ, which has 
traditionally constituted important fishing grounds for the U.S. fleet, 
is notably small--only 300 fishing days per year. However, the new SPTT 
regime provides for U.S. purse seine fishing businesses to purchase 
``additional'' fishing days through direct bilateral agreements with 
the PIPs. NMFS cannot project how many additional days will be 
purchased in any given years, so cannot gauge how the limits on upfront 
days might influence fishing effort in the U.S. EEZ or on the high 
seas. Limits on upfront days are therefore not considered here any 
further.
    Additionally, effective January 1, 2015, Kiribati prohibited 
commercial fishing in the Phoenix Islands Protected Area, which is a 
large portion of the Kiribati EEZ around the Phoenix Islands. These 
limitations in the Kiribati

[[Page 21758]]

EEZ in 2015 probably made fishing in the ELAPS more attractive than it 
otherwise would be.
    Regarding El Ni[ntilde]o Southern Oscillation (ENSO) conditions, 
the eastern areas of the WCPO tend to be comparatively more attractive 
to the U.S. purse seine fleet during El Ni[ntilde]o events, when warm 
surface water spreads from the western Pacific to the eastern Pacific 
and large, valuable yellowfin tuna become more vulnerable to purse 
seine fishing and trade winds lessen in intensity. Consequently, the 
U.S. EEZ and high seas, much of which is situated in the eastern range 
of the fleet's fishing grounds, is likely to be more important fishing 
grounds to the fleet during El Ni[ntilde]o events (as compared to 
neutral or La Ni[ntilde]a events). This is supported by there being a 
statistically significant correlation between annual average per-vessel 
fishing effort in the ELAPS and the Oceanic Ni[ntilde]o Index, a common 
measure of ENSO conditions, over the life of the SPTT through 2010.
    El Ni[ntilde]o conditions were present in 2015 and in the first 
half of 2016, and might have contributed to the relatively high rates 
of fishing in the ELAPS in those years. ENSO neutral conditions began 
in the latter half of 2016, and continued until the fourth quarter of 
2017, when there was a shift to La Ni[ntilde]a conditions, which 
persisted through early 2018 (and which is consistent with the moderate 
rates of fishing in the ELAPS in 2017). As of February 8, 2018, the 
National Weather Service states that a transition from La Ni[ntilde]o 
to ENSO-neutral conditions is likely (~55 percent chance) in March-May 
of 2018 (NWS 2018). Thus ENSO conditions might have a negative 
influence on fishing in the U.S. EEZ and the high seas early in 2018 
and a largely neutral influence for the rest of 2018. Their influence 
on fishing effort in 2019 and 2020 cannot be predicted with any 
certainty.
    Another potentially important factor is that the EEZ and high seas 
limits would be competitive limits, so their establishment could cause 
a ``race to fish'' in the two areas. That is, vessel operators might 
seek to take advantage of the limited number of fishing days available 
in the areas before the limits are reached, and fish harder in the 
ELAPS than they would if there were no limits. On the one hand, any 
such race-to-fish effect might be reflected in the history of fishing 
in the ELAPS, described above. On the other hand, anecdotal information 
from the fishing industry suggests that the limits might have been 
internally allocated by the fleet, which might have tempered any race 
to fish. It is not known whether the industry intends to internally 
allocate the proposed limits.
    In summary, although difficult to predict, either the U.S. EEZ or 
high seas limits could be reached in any of the years 2018-2020, 
especially the high seas limits. If either limit is reached in a given 
year, the fleet would be prohibited from fishing in that area for the 
remainder of the calendar year.
    The closure of any fishing grounds for any amount of time can be 
expected to bring adverse impacts to affected entities (e.g., because 
the open area might, during the closed period, be less productive than 
the closed area, and vessels might use more fuel and spend more time 
having to travel to open areas). The severity of the impacts of a 
closure would depend greatly on the length of the closure and where the 
most favored fishing grounds are during the closure. A study by NMFS 
(Chan, V. and D. Squires. 2016. Analyzing the economic impacts of the 
2015 ELAPS closure. NMFS Internal Report) estimated that the overall 
losses to the combined sectors of the vessels, canneries and vessel 
support companies from the 2015 ELAPS closure ranged from $11 million 
and $110 million depending on the counterfactual period considered. 
These results suggest that there were impacts from the ELAPS closure on 
the American Samoa economy and a connection between U.S. purse seine 
vessels and the broader American Samoa economy.
    If either the U.S. EEZ or high seas is closed, possible next-best 
opportunities for U.S. purse seine vessels fishing in the WCPO include 
fishing in the other of the two areas, fishing in foreign EEZs inside 
the Convention Area, fishing outside the Convention Area in EPO, and 
not fishing.
    With respect to fishing in the U.S. EEZ or on the high seas: If the 
U.S. EEZ were closed, the high seas would be available to the fleet 
until its limit is reached. If the high seas were closed, the U.S. EEZ 
would be available until its limit is reached, but only for the vessels 
with fishery endorsements on their Certificates of Documentation 
(currently 9, including 8 vessels with SPTT licenses and one additional 
vessel without).
    With respect to fishing in the Convention Area in foreign EEZs: As 
described above, under the SPTT the fleet might have substantial 
fishing days available in the Pacific Island country EEZs that dominate 
the WCPO, but it is not possible to predict how many fishing days will 
be available to the fleet as a whole or to individual fishing 
businesses.
    With respect to fishing in the EPO: The fleet has generally 
increased its fishing operations in the EPO since 2014, and as of 2017, 
there were 17 purse seine vessel in the WCPO fleet that are also listed 
on the IATTC Vessel Register. In order to fish in the EPO, a vessel 
must be on the IATTC's Regional Vessel Register and categorized as 
active (50 CFR 300.22(b)), which involves fees of about $14.95 per 
cubic meter of well space per year (e.g., a vessel with 1,200 m\3\ of 
well space would be subject to annual fees of $17,940). (As an 
exception to this rule, an SPTT-licensed vessel is allowed to make one 
fishing trip in the EPO each year without being categorized as active 
on the IATTC Regional Vessel Register. The trip must not exceed 90 days 
in length, and there is an annual limit of 32 such trips for the entire 
SPTT-licensed fleet (50 CFR 300.22(b)(1)).) The number of U.S. purse 
seine vessels in the WCPO fleet that have opted to be categorized as 
such has increased in the last few years from zero to 17, probably 
largely a result of constraints on fishing days in the WCPO and/or 
uncertainty in future access arrangements under the SPTT. This suggests 
an increasing attractiveness of fishing in the EPO, in spite of the 
costs associated with doing so. However, in 2018 vessels probably will 
not have the opportunity to fish in the EPO year-round. To implement a 
recent decision of the IATTC, NMFS has published a final rule that 
requires purse seine vessels to choose between two EPO fishing 
prohibition periods each year in 2018-2020: July 29-October 8 or 
November 9-January 19 (72 days in either case). Thus, the opportunity 
to fish in the EPO might be constrained, depending on when the U.S. EEZ 
and/or high seas in the WCPFC Area is closed, and which EPO closure 
period a given vessel operator chooses.
    With respect to not fishing at all during a closure of the U.S. EEZ 
or high seas: This would mean a loss of any revenues from fishing. 
However, many of the vessels' variable operating costs would be avoided 
in that case, and it is possible that for some vessels a portion of the 
time might be used for productive activities like vessel and equipment 
maintenance.
    The opportunity costs of engaging in next-best opportunities in the 
event of a closure are not known, so the potential impacts cannot be 
quantified. However, to give an indication of the magnitude of possible 
economic impacts to producers in the fishery (i.e., an indication of 
the upper bound of those impacts), information on revenues per day is 
provided here.

[[Page 21759]]

    The last five years for which catch estimates for the U.S. WCPO 
purse seine fleet are available are 2012-2016. Those estimates, 
adjusted to an indicative fleet size of 35 vessels, equate to annual 
average catches of skipjack tuna, yellowfin tuna, and bigeye tuna of 
236,077 mt, 24,802 mt, and 4,213 mt, respectively, or 265,091 mt in 
total. Applying an indicative current Bangkok cannery price for 
skipjack tuna of $1,500 per mt to all three species, the value of 
annual fleet-wide catches at 2012-2016 average levels would be about 
$398 million, equivalent to a little more than $1 million per calendar 
day, on average. It should be noted that cannery prices are fairly 
volatile; for example, cannery prices are much lower now than prices 
during most of 2017.
    In addition to the effects described above, the proposed limits 
could affect the temporal distribution of fishing effort in the U.S. 
purse seine fishery. Since the limits would apply fleet-wide--that is, 
they would not be allocated to individual vessels--vessel operators 
might have an incentive to fish harder in the affected areas earlier in 
each calendar year than they otherwise would. Such a race-to-fish 
effect might also be expected in the time period between when a closure 
of the fishery is announced and when it is actually closed, which would 
be at least seven calendar days. To the extent such temporal shifts 
occur, they could affect the seasonal timing of fish catches and 
deliveries to canneries. The timing of cannery deliveries by the U.S. 
fleet alone (as it might be affected by a race to fish in the EEZ or 
high seas) is unlikely to have an appreciable impact on prices, because 
many canneries in the Asia-Pacific region and elsewhere buy from the 
fleets of multiple nations. A race to fish could bring costs to 
affected entities if it causes vessel operators to forego vessel 
maintenance in favor of fishing or to fish in weather or ocean 
conditions that they otherwise would not. This could bring costs in 
terms of the health and safety of the crew as well as the economic 
performance of the vessel.
4. Eastern High Seas Special Management Area
    This element of the proposed rule would remove a reporting/
recordkeeping requirement, the requirement to notify NMFS when entering 
and exiting the EHSSMA. It would also establish a prohibition on 
transshipment in the EHSSMA.
    Fulfillment of this element's requirements is not expected to 
require any professional skills that the vessel owners and operators do 
not already possess. The costs of complying with the requirements are 
described below to the extent possible.
    Regarding the entry/exit notices, when NMFS established the 
requirement in 2012 (final rule published December 3, 2012; 77 FR 
71501), it estimated that each report would require about 15 minutes of 
labor (at a labor cost of about $60 per hour) and no more than $1 in 
communication costs, for an estimated total cost of compliance of about 
$16 per notice. At that time, NMFS estimated that each longline vessel 
would enter and exit the EHSSMA between zero and approximately four 
times per year (requiring 0-8 notices per year at an annual cost of $0-
128), each purse seine vessel would do so between zero and 
approximately two times per year (requiring 0-4 notices per year at an 
annual cost of $0-64), and each albacore troll vessel would do so 
between zero and two times per year (requiring 0-4 notices per year at 
an annual cost of $0-64). According to the notices received by NMFS, 
zero longline vessels and zero albacore troll vessels have entered the 
EHSSMA from 2013 through 2017, and there have been nine entries/exits 
by purse seine fishing vessels. In any case, under the proposed rule, 
commercial fishing vessels would be relieved of about $16 in compliance 
costs each time they enter or exit the EHSSMA.

Disproportionate Impacts

    As described above, the type of the impacts would vary greatly 
among fishing gear types (i.e., longline versus albacore troll versus 
purse seine), and the magnitude of the impacts also could vary greatly 
by fishing gear type (but they are difficult to quantify and compare). 
Nevertheless, all the affected entities in the longline and albacore 
troll fishing sectors are small entities, so there would be no 
disproportionate impacts between small and large entities within those 
sectors. In the purse seine fishing sector, slightly more than half the 
affected entities are small entities. The direct effect of the proposed 
rule would be to constrain fishing effort by purse seine fishing 
vessels, with consequent constraining effects on both revenues (because 
catches would be less) and operating costs (because less fishing would 
be undertaken). Although some purse seine fishing entities are larger 
than others, NMFS is not aware of any differences between the small 
entities and the large entities (as defined by the RFA) in terms of 
their capital costs, operating costs, or other aspects of their 
businesses. Accordingly, there is no information to suggest that the 
direct adverse economic impacts on small purse seine entities would be 
disproportionately greater than those on large purse seine 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 impacts on small entities (``significant 
alternatives''). Taking no action could result in lesser adverse 
economic impacts than the proposed action for affected entities (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 four elements of the proposed rule are 
discussed below.
1. Longline Bigeye Tuna Catch Limits
    NMFS has not identified any significant alternatives for this 
element of the proposed rule, other than the no-action alternative.
2. FAD Restrictions
    NMFS considered in detail one alternative to this element of the 
proposed rule, but only with respect to the timing of the two-month FAD 
closure for the high seas. CMM 2017-01 allows members to choose either 
November-December, as in this proposed rule, or April-May. NMFS has 
compared the expected direct economic impacts of the two alternatives 
on purse seine fishing businesses in the regulatory impact review for 
the proposed rule. The analysis finds that a November-December closure 
is more likely to have a lesser direct economic impact on those 
businesses than an April-May closure, primarily because the later 
closure period is more likely to run concurrently with a closure of the 
high seas in the Convention Area to purse seine fishing (if the fishing 
effort limit in this proposed rule is reached), in which case the FAD 
closure would bring no additional economic impacts.
3. Purse Seine Fishing Effort Limits
    In the past, NMFS implemented the U.S. purse seine fishing effort 
limits on the high seas and in the U.S. EEZ adopted by the Commission 
as a single combined limit in the ELAPS. For this

[[Page 21760]]

proposed rule, in light of CMM 2017-01's provision allowing the United 
States to transfer some of its EEZ fishing days to the high seas, there 
is a need to separately account for the U.S. high seas limit and the 
U.S. EEZ limit. Thus, combining the two limits into a single limit for 
the ELAPS is not a practical alternative, and NMFS has not considered 
it in detail.
4. Eastern High Seas Special Management Area
    NMFS has not identified any significant alternatives for this 
element of the proposed rule, other than the no-action alternative.

Paperwork Reduction Act

    This proposed rule contains a collection-of-information requirement 
subject to review and approval by OMB under the Paperwork Reduction Act 
(PRA). This requirement has been submitted to OMB for approval. Public 
reporting burden for the daily report of purse seine effort information 
is estimated to average 10 minutes per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection information.
    Public comment is sought regarding: Whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to Michael 
D. Tosatto, Regional Administrator, NMFS PIRO (see ADDRESSES), and by 
email to [email protected] or fax to 202-395-5806. 
Notwithstanding any other provision of the law, no person is required 
to respond to, and no person shall be subject to penalty for failure to 
comply with, a collection of information subject to the requirements of 
the PRA, unless that collection of information displays a currently 
valid OMB control number.

List of Subjects in 50 CFR Part 300

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

    Dated: May 4, 2018.
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 
proposed to be 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.  300.211, add definition ``Active FAD'' to read as follows:


Sec.  300.211   Definitions.

* * * * *
    Active FAD is a FAD that is equipped with a buoy with a clearly 
marked reference number allowing its identification and equipped with a 
satellite tracking system to monitor its position.
* * * * *
0
3. In Sec.  300.217, revise paragraph (b)(1) to read as follows:


Sec.  300.217   Vessel identification.

* * * * *
    (b) * * *
    (1) Vessels shall be marked in accordance with the identification 
requirements of Sec.  300.336(b)(2), and if an IRCS has not been 
assigned to the vessel, then the Federal, State, or other documentation 
number used in lieu of the IRCS must be preceded by the characters 
``USA'' and a hyphen (that is, ``USA-'').
* * * * *
0
4. In Sec.  300.218, revise paragraphs (a)(2)(v) and (g) to read as 
follows:


Sec.  300.218   Reporting and recordkeeping requirements.

* * * * *
    (a) * * *
    (2) * * *
    (v) High seas fisheries. Fishing activities subject to the 
reporting requirements of Sec.  300.341 must be maintained and reported 
in the manner specified in Sec.  300.341(a).
* * * * *
    (g) Daily purse seine fishing effort reports. If directed by NMFS, 
the owner or operator of any fishing vessel of the United States 
equipped with purse seine gear must report to NMFS, for the period and 
in the format and manner directed by the Pacific Islands Regional 
Administrator, within 24 hours of the end of each day that the vessel 
is at sea in the Convention Area, the activity of the vessel (e.g., 
setting, transiting, searching), location and type of set, if a set was 
made during that day.
* * * * *
0
5. In Sec.  300.222, revise paragraphs (v), (w), (oo), and (pp) as 
follows:


Sec.  300.222   Prohibitions.

* * * * *
    (v) Use a fishing vessel equipped with purse seine gear to fish in 
an area closed to purse seine fishing under Sec.  300.223(a).
    (w) Set a purse seine around, near or in association with a FAD or 
a vessel, deploy, activate, or service a FAD, or use lights in 
contravention of Sec.  300.223(b).
* * * * *
    (oo) Transship in the Eastern High Seas Special Management Area in 
contravention of Sec.  300.225.
    (pp) Fail to submit, or ensure submission of, a daily purse seine 
fishing effort report as required in Sec.  300.218(g).
* * * * *
0
6. In Sec.  300.223, revise paragraphs (a), (b)(1) and (2), and add 
paragraph (b)(3) to read as follows:


Sec.  300.223   Purse seine fishing restrictions.

* * * * *
    (a) Fishing effort limits. This paragraph establishes limits on the 
number of fishing days that fishing vessels of the United States 
equipped with purse seine gear may operate in the Convention Area in 
the area between 20[deg] N latitude and 20[deg] S latitude in a 
calendar year.
    (1) For the high seas there is a limit of 1,370 fishing days per 
calendar year.
    (2) For the U.S. EEZ there is a limit of 458 fishing days per 
calendar year. If NMFS expects that this limit will be reached by 
October 1 in a given calendar year, NMFS will publish a notice in the 
Federal Register increasing the limit for that calendar year to 558 
fishing days no later than seven days prior to October 1.
    (3) NMFS will determine the number of fishing days spent on the 
high seas and in the U.S. EEZ in each calendar year using data 
submitted in logbooks and other available information. After NMFS 
determines that a limit in a calendar year is expected to be reached by 
a specific future date, and at least seven calendar days in advance of 
the closure date, NMFS will publish a notice in the Federal Register 
announcing that the purse seine fishery

[[Page 21761]]

in the area where the limit is expected to be reached will be closed 
starting on that specific future date and will remain closed until the 
end of the calendar year.
    (4) Once a fishery closure is announced pursuant to paragraph 
(a)(3) of this section, fishing vessels of the United States equipped 
with purse seine gear may not be used to fish in the closed area during 
the period specified in the Federal Register notice, except that such 
vessels are not prohibited from bunkering during a fishery closure.
* * * * *
    (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 equipped with purse seine gear 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:
    (i) Set a purse seine around a FAD or within one nautical mile of a 
FAD.
    (ii) Set a purse seine in a manner intended to capture fish that 
have aggregated in association with a FAD or a vessel, such as by 
setting the purse seine in an area from which a FAD or a vessel has 
been moved or removed within the previous eight hours, or setting the 
purse seine in an area in which a FAD has been inspected or handled 
within the previous eight hours, or setting the purse seine in an area 
into which fish were drawn by a vessel from the vicinity of a FAD or a 
vessel.
    (iii) Deploy a FAD into the water.
    (iv) 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) 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
    (B) A FAD may be removed from the water and if removed may be 
repaired, cleaned, maintained, or otherwise serviced, provided that it 
is not returned to the water.
    (v) From a purse seine vessel or any associated skiffs, other 
watercraft or equipment, do any of the following, except in emergencies 
as needed to prevent human injury or the loss of human life, the loss 
of the purse seine vessel, skiffs, watercraft or aircraft, or 
environmental damage:
    (A) Submerge lights under water;
    (B) Suspend or hang lights over the side of the purse seine vessel, 
skiff, watercraft or equipment, or;
    (C) 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.
    (2) The requirements of paragraph (b)(1) of this section shall 
apply:
    (i) From July 1 through September 30, in each calendar year;
    (ii) In any area of high seas, from November 1 through December 31, 
in each calendar year.
    (3) Activating FADs for purse seine vessels. (i) A vessel owner, 
operator, or crew of a fishing vessel of the United States equipped 
with purse seine gear shall turn on the tracking equipment of an active 
FAD while the FAD is onboard the vessel and before it is deployed in 
the water.
    (ii) Restrictions on Active FADs for purse seine vessels. U.S. 
vessel owners and operators of a fishing vessel of the United States 
equipped with purse seine gear shall not have more than 350 drifting 
active FADs per vessel in the Convention Area at any one time.
* * * * *
0
7. In Sec.  300.224, revise paragraph (a)(1) and remove paragraph 
(a)(2) to read as follows:


Sec.  300.224   Longline fishing restrictions.

    (a) * * *
    (1) There is a limit of 3,554 metric tons of bigeye tuna per 
calendar year that may be captured in the Convention Area by longline 
gear and retained on board by fishing vessels of the United States.
* * * * *
0
8. Revise Sec.  300.225 to read as follows:


Sec.  300.225   Eastern High Seas Special Management Area.

    The owner and operator of a fishing vessel of the United States 
used for commercial fishing for HMS is prohibited from engaging in 
transshipment in the Eastern High Seas Special Management Area.

[FR Doc. 2018-09896 Filed 5-9-18; 8:45 am]
 BILLING CODE 3510-22-P