[Federal Register Volume 84, Number 147 (Wednesday, July 31, 2019)]
[Rules and Regulations]
[Pages 37145-37148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16284]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 190220141-9141-01]
RIN 0648-BI78


International Fisheries; Western and Central Pacific Fisheries 
for Highly Migratory Species; Fishing Restrictions in Purse Seine 
Fisheries

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

ACTION: Interim final rule; request for comments.

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SUMMARY: This interim final rule establishes limits on fishing effort 
by U.S. purse seine vessels in the U.S. exclusive economic zone (EEZ) 
and on the high seas between the latitudes of 20[deg] N. and 20[deg] S. 
in the area of application of the Convention on the Conservation and 
Management of Highly Migratory Fish Stocks in the Western and Central 
Pacific Ocean (Convention). The calendar year limit for 2019 is 1,616 
fishing days. The calendar year limit for 2020 and subsequent years is 
1,828 fishing days. This action is necessary for the United States to 
implement provisions of a conservation and management measure adopted 
by the Commission for the Conservation and Management of Highly 
Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC 
or Commission) and to satisfy the obligations of the United States 
under the Convention, to which it is a Contracting Party. NMFS is 
seeking comments on this interim final rule and will respond to those 
comments in a subsequent final rule.

DATES: Effective on July 31, 2019. Comments must be submitted in 
writing by August 30, 2019.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2019-0056, and the regulatory impact review (RIR) prepared 
for the interim final rule, by either of the following methods:
     Electronic submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal.
    1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0056,
    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).

[[Page 37146]]

    Copies of the RIR, the programmatic environmental assessment (PEA), 
and supplemental environmental assessment (SEA) prepared for National 
Environmental Policy Act (NEPA) purposes are available at 
www.regulations.gov or may be obtained from Michael D. Tosatto, 
Regional Administrator, NMFS PIRO (see address above).

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

SUPPLEMENTARY INFORMATION: 

Background on the Convention

    The Convention is concerned with the conservation and management of 
highly migratory species (HMS) and the management of fisheries for HMS. 
The objective of the Convention is to ensure, through effective 
management, the long-term conservation and sustainable use of HMS in 
the western and central Pacific Ocean (WCPO). To accomplish this 
objective, the Convention established the Commission for the 
Conservation and Management of Highly Migratory Fish Stocks in the 
Western and Central Pacific Ocean (Commission or WCPFC), which includes 
Members, Cooperating Non-members, and Participating Territories 
(collectively referred to here as ``members''). The United States of 
America is a Member. American Samoa, Guam, and the Commonwealth of the 
Northern Mariana Islands are Participating Territories.
    As a Contracting Party to the Convention and a Member of the 
Commission, the United States implements, as appropriate, conservation 
and management measures adopted by the Commission and other decisions 
of the Commission. The WCPFC Implementation Act (16 U.S.C. 6901 et 
seq.), authorizes the Secretary of Commerce, in consultation with the 
Secretary of State and the Secretary of the Department in which the 
United States Coast Guard is operating (currently the Department of 
Homeland Security), to promulgate such regulations as may be necessary 
to carry out the obligations of the United States under the Convention, 
including the decisions of the Commission. The WCPFC Implementation Act 
further provides that the Secretary of Commerce shall ensure 
consistency, to the extent practicable, of fishery management programs 
administered under the WCPFC Implementation Act and the Magnuson-
Stevens Fishery Conservation and Management Act (MSA; 16 U.S.C. 1801 et 
seq.), as well as other specific laws (see 16 U.S.C. 6905(b)). The 
Secretary of Commerce has delegated the authority to promulgate 
regulations under the WCPFC Implementation Act to NMFS. A map showing 
the boundaries of the area of application of the Convention (Convention 
Area), which comprises the majority of the WCPO, can be found on the 
WCPFC website at: www.wcpfc.int/doc/convention-area-map.

WCPFC Decision on Tropical Tunas

    At its Fifteenth Regular Session, in December 2018, the WCPFC 
adopted Conservation and Management Measure (CMM) 2018-01, 
``Conservation and Management Measure for Bigeye, Yellowfin and 
Skipjack Tuna in the Western and Central Pacific Ocean.'' CMM 2018-01 
is the most recent in a series of CMMs for the management of tropical 
tuna stocks under the purview of the Commission. It is a successor to 
CMM 2017-01, adopted in December 2017. These and other CMMs are 
available at: www.wcpfc.int/conservation-and-management-measures. CMM 
2018-01 is similar in many respects to its predecessor WCPFC 
conservation and management measures for tropical tunas, and NMFS has 
already implemented most provisions of CMM 2018-01 through prior 
rulemaking.
    The purpose of CMM 2018-01 is to ensure the sustainability of the 
stocks of bigeye tuna (Thunnus obesus), yellowfin tuna (Thunnus 
albacares), and skipjack tuna (Katsuwonus pelamis) in the WCPO until 
the establishment of specific harvest strategies for those stocks. CMM 
2018-01 went into effect on February 13, 2019, and remains in effect 
until February 10, 2021.
    The provisions of CMM 2018-01 implemented in this interim final 
rule are the limits on fishing effort by U.S. purse seine vessels in 
the U.S. EEZ and on the high seas between the latitudes of 20[deg] N. 
and 20[deg] S. in the Convention Area. CMM 2018-01 specifies a limit of 
558 fishing days in the U.S. EEZ and a limit of 1,270 fishing days on 
the high seas for each of the calendar years 2019 and 2020 for U.S. 
purse seine vessels.
    CMM 2018-01 also includes new provisions for fish aggregating 
device (FAD) management for purse seine vessels. These new provisions 
are: (1) Specific FAD design requirements to reduce the risk of 
entanglement of sharks, sea turtles and other species; and (2) language 
to clarify that sets on small amounts of plastic or small garbage that 
do not have a tracking buoy attached are not considered to be FAD sets 
during the prohibition periods in 2019 for setting on FADs.
    Regarding the specific FAD design requirements: The FAD design 
requirements do not need to go into effect until January 1, 2020, as 
specified in CMM 2018-01. They are not being implemented through this 
interim final rule; they may be implemented, as appropriate, in a 
separate rulemaking.
    Regarding the language to clarify the nature of FAD sets: In 2018, 
NMFS implemented the provisions regarding the prohibition periods for 
setting on FADs set forth in CMM 2017-01, which are identical to the 
provisions set forth in CMM 2018-01. Under existing regulations, U.S. 
purse seine vessels are prohibited from setting on FADs in each 
calendar year from July 1 through September 30 in the area between 
20[deg] N latitude and 20[deg] S latitude in the Convention Area, and 
for an additional two months on the high seas in that area (November 
and December). See 50 CFR 300.223(b). CMM 2018-01 included new language 
clarifying that sets on small amounts of plastic or garbage that do not 
have a tracking buoy are not considered to be FAD sets during the 
prohibition periods. The current definition of FAD at 50 CFR 300.211 
states that FAD means ``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,'' excluding a vessel. NMFS has not in the past, and 
continues not to, interpret the current regulatory FAD definition to 
include ``sets on small amounts of plastic or garbage that do not have 
a tracking buoy'' during prohibition periods. Because the CMM's 
language is consistent with NMFS' interpretation of the existing 
regulatory definition, NMFS is not revising the existing FAD definition 
found at 50 CFR 300.211.

The Action

    CMM 2018-01 includes purse seine fishing effort limits for calendar 
year 2019 and calendar year 2020. Because the Commission will likely 
continue to adopt similar management measures for future years, and to 
ensure that the conservation measures do not lapse, NMFS is 
implementing the limits in this interim final rule to remain effective 
until they are replaced or amended.
    Under CMM 2018-01, the specified U.S. purse seine fishing effort 
limit for the U.S. EEZ is 558 fishing days per year and the specified 
limit for the high seas is 1,270 fishing days per year. CMM 2017-01 and 
CMM 2018-01 both include language that requires any overage of an 
annual limit to be deducted from the limit for the following year. The 
separate limits for

[[Page 37147]]

2018 were 1,370 fishing days for the high seas and 458 fishing days for 
the U.S. EEZ. As a result of the purse seine fishing effort limit for 
the high seas being reached, NMFS closed the high seas in the 
Convention Area to U.S. purse seine fishing on September 18, through 
the end of the calendar year (see 83 FR 45849; published September 11, 
2018). NMFS estimates that the U.S. WCPO purse fleet fished for a total 
of 1,582 days on the high seas, which is 212 fishing days over the 2018 
limit for the high seas.
    In the past, NMFS has implemented the U.S. purse seine fishing 
effort limits on the high seas and in the U.S. EEZ as a single combined 
limit, rather than establishing separate limits for the two areas. For 
2018 only, NMFS established separate limits for the U.S. EEZ and the 
high seas. This was done in response to a provision in CMM 2017-01 (not 
included in previous CMMs or CMM 2018-01) providing for the transfer of 
a limited number of the United States' EEZ fishing days to the high 
seas.
    Because under CMM 2018-01 the United States is no longer limited by 
the transfer provision that was included in CMM 2017-01, NMFS is 
combining the purse seine fishing effort limits for the U.S. EEZ and 
the high seas, consistent with previous rulemakings. For 2019, this 
interim final rule establishes a limit of 1,616 fishing days (558 
fishing days from the U.S. EEZ limit plus 1,270 days from the high seas 
limit less the 212 fishing day overage of the 2018 high seas limit) for 
the Effort Limit Area for Purse Seine (or ELAPS), which comprises the 
areas of the high seas and U.S. EEZ between 20[deg] N. latitude and 
20[deg] S. latitude in the Convention Area. For 2020 and subsequent 
years, this interim final rule establishes a combined limit of 1,828 
fishing days per calendar year for the ELAPS, which could be modified 
to take into consideration any overage of a previous year's limit.
    Combining the high seas and EEZ limits is consistent with the 
objectives of CMM 2018-01. The Commission's limits on purse seine 
fishing effort are designed, in combination with other measures, to 
control fishing mortality on the tropical tuna stocks. The CMM has 
identified separate limits for EEZs and the high seas not for any 
stated conservation purpose, but rather to ensure effective 
implementation. The Commission decided that management of fishing 
effort in zones should be the responsibility of coastal members, and 
management of fishing effort on the high seas should be the 
responsibility of flag members. Accordingly, where as in the case of 
the United States, the member is both a flag state and a coastal state, 
combining the EEZ and high seas limits meets the conservation 
objectives of the CMM provided that the sum of the two limits is not 
exceeded.
    NMFS considered both the action alternative that would combine the 
two areas and another alternative that would not (see the PEA and the 
RIR for comparisons of the two alternatives). Because both alternatives 
would accomplish the objective of controlling fishing effort by the 
WPCFC-adopted amount (i.e., by U.S. purse seine vessels operating on 
the high seas and by purse seine vessels in areas under U.S. 
jurisdiction, collectively), and because the alternative of combining 
the two areas is expected to result in greater operational flexibility 
to affected purse seine vessels and lesser adverse economic impacts, 
NMFS is implementing the alternative that would combine the two areas.
    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 notes the U.S. purse seine industry provided two comment 
letters in response to a notice issued by NOAA regarding streamlining 
regulatory processes and reducing regulatory burden (see 82 FR 31576; 
published July 7, 2017), requesting that the definition of fishing day 
be changed to the definition used by the Parties to the Nauru Agreement 
in the Palau Arrangement for the Management of the Western Pacific 
Fishery Management Scheme (Purse Seine Vessel Day Scheme) as amended by 
the Parties to the Palau Arrangement (Arrangement).\1\ NMFS continues 
to believe the existing definition at 50 CFR 300.211 is appropriate.
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    \1\ See text of the Arrangement at https://www.pnatuna.com/content/purse-seine-vds-text.
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    NMFS will monitor the number of fishing days spent in the ELAPS 
using data submitted in logbooks and other available information. If 
and when NMFS determines that the limit of 1,616 fishing days is 
expected to be reached by a specific future date in 2019, or the limit 
of 1,828 is expected to be reached by a specific future date in 2020 or 
subsequent years, it will publish a notice in the Federal Register 
announcing that the purse seine fishery in the ELAPS will be closed 
starting on a specific future date and will remain closed until the end 
of calendar year. NMFS will publish that notice at least seven days in 
advance of the closure date.
    As stated in existing regulations at 50 CFR 300.223(a)(4), starting 
on the announced closure date, and for the remainder of calendar year, 
it will be prohibited for U.S. purse seine vessels to fish in the 
ELAPS, except that such vessels are not prohibited from bunkering 
during the closure.

Classification

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

Administrative Procedure Act

    There is good cause under 5 U.S.C. 553(b)(B) to waive prior notice 
and the opportunity for public comment on this action, because prior 
notice and the opportunity for public comment would be contrary to the 
public interest. This rule establishes limits on purse seine fishing 
effort for 2019 and future years that are similar to the limits in 
place from 2009 through 2018. Affected entities have been subject to 
fishing effort limits in the affected area--the ELAPS--since 2009, and 
are expecting imminent publication of the 2019 fishing effort limits. 
It is critical that NMFS publish the limit for 2019 as soon as possible 
to ensure it is not exceeded and the United States complies with its 
obligations with respect to CMM 2018-01. Based on data available to 
date, NMFS expects that the applicable limit of 1,616 fishing days in 
the ELAPS could be reached in the first half of the calendar year. 
Delaying this rule to allow for advance notice and public comment would 
bring a substantial risk that more than 1,616 fishing days would be 
spent in the ELAPS in 2019, constituting non-compliance by the United 
States with respect to the purse seine fishing effort limit provisions 
of CMM 2018-01. Because a delay in implementing this limit for 2019 
could result in the United States violating its obligations with 
respect to the purse seine fishing effort limit provisions of CMM 2018-
01, which are important for the conservation and management of tropical 
tuna stocks in the WCPO, allowing advance notice and the opportunity 
for public comment would be contrary to the public interest. NMFS will, 
however, consider public comments received on this interim final rule 
and issue a final rule, responding to comments as appropriate. 
Moreover, NMFS notes that the United States government shutdown in late 
2018 and early 2019 affected NMFS' ability to

[[Page 37148]]

proceed with this rulemaking in the usual timeframe after the 
Commission adopted CMM 2018-01.
    For the reasons articulated above, there is also good cause under 5 
U.S.C. 553(d)(3) to waive the 30-day delay in effective date for this 
rule. As described above, NMFS must implement the purse seine fishing 
effort limits as soon as possible to ensure that they are not exceeded. 
A delay in implementing this limit for 2019 could result in the United 
States violating its obligations with respect to the purse seine 
fishing effort limit provisions of CMM 2018-01, which are important for 
the conservation and management of tropical tuna stocks in the WCPO.

Executive Order 12866

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

Regulatory Flexibility Act

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

Paperwork Reduction Act

    Although there are no new collection-of-information requirements 
associated with this action that are subject to the Paperwork Reduction 
Act, existing collection-of information requirements would apply in the 
Convention Area, under the following Control Number: 0648-0649, 
Transshipment Requirements under the WCPFC.

List of Subjects in 50 CFR Part 300

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

    Dated: July 26, 2019.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 300--INTERNATIONAL FISHERIES REGULATIONS

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

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

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


0
2. In Sec.  300.223, revise paragraphs (a)(1) through (3) to read as 
follows:


Sec.  300.223  Purse seine fishing restrictions.

* * * * *
    (a) * * *
    (1) For calendar year 2019, there is a limit of 1,616 fishing days 
in the ELAPS.
    (2) Beginning in 2020, there is a limit of 1,828 fishing days in 
the ELAPS per calendar year.
    (3) NMFS will determine the number of fishing days spent in the 
ELAPS 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 
document 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 that specific future date and will remain closed 
until the end of the calendar year.
* * * * *
[FR Doc. 2019-16284 Filed 7-30-19; 8:45 am]
 BILLING CODE 3510-22-P