[Federal Register Volume 84, Number 216 (Thursday, November 7, 2019)]
[Proposed Rules]
[Pages 60040-60051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24304]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 191101-0073]
RIN 0648-BH59
International Fisheries; Eastern Pacific Tuna Fisheries; Western
and Central Pacific Fisheries for Highly Migratory Species; Area of
Overlap Between the Convention Areas of the Inter-American Tropical
Tuna Commission and the Western and Central Pacific Fisheries
Commission
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 (WCPFCIA) and the Tuna Conventions Act. The proposed
rule would revise the management regime for fishing vessels that target
tunas and other highly migratory fish species (HMS) in the area of
overlapping jurisdiction in the Pacific Ocean between the Inter-
American Tropical Tuna Commission (IATTC) and the Commission for the
Conservation and Management of Highly Migratory Fish Stocks in the
Western and Central Pacific Ocean (WCPFC). The proposed rule would
apply all regulations implementing IATTC resolutions in the area of
overlapping jurisdiction. Under this proposed rule, regulations
implementing WCPFC decisions on catch and fishing effort limits,
bycatch mitigation measures, and associated reporting requirements
would no longer apply in the area of overlapping jurisdiction. However,
regulations implementing WCPFC management measures related to
monitoring, control, and surveillance would continue to apply in the
area of overlapping jurisdiction. NMFS is undertaking this action based
on an evaluation of the management regime in the area of overlapping
jurisdiction, in order to satisfy the obligations of the United States
as member of the IATTC and the WCPFC, pursuant to the authority of the
WCPFCIA and the Tuna Conventions Act.
DATES: Comments on the proposed rule must be submitted by November 22,
2019.
[[Page 60041]]
ADDRESSES: You may submit comments on the proposed rule and the
regulatory impact review (RIR) prepared for the proposed rule,
identified by NOAA-NMFS-2018-0049, 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-2018-0049,
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 must be submitted by electronic submission
or mail to ensure they are received, documented, and considered by
NMFS. Comments sent by any other method, to any other address or
individual, or received after the end of the comment period, might not
be considered by NMFS. All comments received are a part of the public
record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name and address), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous).
An initial regulatory flexibility analysis (IRFA) prepared under
authority of the Regulatory Flexibility Act is included in the
Classification section of the SUPPLEMENTARY INFORMATION section of this
document.
Copies of the RIR and the environmental assessment (EA) prepared
for the proposed rule are available at www.regulations.gov or may be
obtained via mail from Michael D. Tosatto, Regional Administrator, NMFS
PIRO.
FOR FURTHER INFORMATION CONTACT: Alex Kahl, NMFS PIRO, 808-725-5031.
SUPPLEMENTARY INFORMATION:
Background
The United States is a member of both IATTC and WCPFC. NMFS
implements decisions of WCPFC under the authority of the WCPFCIA (16
U.S.C. 6901 et seq.), and decisions of IATTC under the authority of the
Tuna Conventions Act (16 U.S.C. 951 et seq.). The convention areas for
the IATTC (IATTC Area) and WCPFC (WCPFC Area) overlap in the Pacific
Ocean waters within an area bounded by 50[deg] S latitude, 4[deg] S
latitude, 150[deg] W longitude, and 130[deg] W longitude (``overlap
area''). Historically, regulations implementing the conservation
measures adopted by both IATTC (50 CFR 300, subpart C) and WCPFC (50
CFR 300, subpart O) applied to U.S. vessels fishing for highly
migratory species (HMS) in the overlap area. In 2012, IATTC and WCPFC
adopted decisions allowing each member belonging to both commissions to
decide, for a period of not less than 3 years, whether IATTC or WCPFC
conservation and management measures would apply to its vessels when
they fish in the overlap area.
In accordance with WCPFC and IATTC decisions regarding the overlap
area,\1\ NMFS undertook a rulemaking regarding management of the
overlap area. After issuing a proposed rule for public review and
comment, NMFS issued a final rule on April 26, 2016 (81 FR 24501 (Apr.
26, 2016), effective May 26, 2016; hereafter ``2016 final rule''),
stating that except for IATTC Regional Vessel Register (RVR)
regulations at 50 CFR 300.22(b), all other regulations implementing
IATTC decisions at 50 CFR 300, subpart C would no longer apply in the
overlap area. The IATTC RVR regulations continued to apply in the
overlap area for compliance with U.S. obligations under the Agreement
on the International Dolphin Conservation Program (AIDCP). Under the
2016 final rule, regulations implementing WCPFC conservation and
management measures applied in the overlap area. In the preamble to the
2016 final rule, NMFS indicated that it may reevaluate the location of
fishing effort in the eastern Pacific Ocean (EPO) and western and
central Pacific Ocean (WCPO) in three years to consider revising the
management regime for the overlap area.
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\1\ IATTC Recommendation C-12-11, ``IATTC-WCPFC Overlap Area,''
and the WCPFC decision documented in ``Summary Report of the Ninth
Regular Session of the Commission for the Conservation and
Management of Highly Migratory Fish Stocks in the Western and
Central Pacific Ocean,'' Manila, Philippines, 2-6 December, 2012,
paragraph 80.
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Accordingly, in June 2018, NMFS revisited this decision and
published an advance notice of proposed rulemaking (ANPR) (83 FR.
27305; June 12, 2018) seeking public input about whether conservation
and management measures adopted by WCPFC or IATTC should apply in the
overlap area. NMFS received ten comments in response to the ANPR (all
from the U.S. purse seine industry), unanimously supporting application
of IATTC measures rather than WCPFC measures in the overlap area. The
commenters generally stated there would be more fishing opportunities
under IATTC measures than under WCPFC measures, maintaining that WCPFC
measures result in more constraining fishery closures than IATTC
measures, and that the escalating cost of fishing days in foreign
exclusive economic zones (EEZ) in the WCPFC Area, makes high seas
within the overlap area an increasingly attractive fishing ground.
NMFS' analyses (EA and RIR) of the comparative economic effects and
environmental effects of the application of WCPFC measures or IATTC
measures in the overlap area concludes that application of IATTC
measures would likely result in greater net benefits to the nation.
These greater net benefits arise from more fishing opportunity and
greater operational certainty provided by the option of annually
choosing one of the IATTC's two 72-day purse seine closure periods
instead of the WCPFC purse seine fishing effort limits and fish
aggregating device (FAD) closure periods currently applicable to the
overlap area under NMFS regulations at 50 CFR 300.223. Under the
current WCPFC-derived regulations, FAD fishing is prohibited in the
overlap area for five months of the year (one three-month closure in
the entire overlap area, and an additional two-month closure on the
high seas of the overlap area), and there is uncertainty regarding when
the fishing effort limits would be reached, which would result in a
fishery closure for the remainder of the year. More fishing opportunity
and operational certainty would be particularly beneficial during El
Ni[ntilde]o events, when tropical tuna are more likely to be found in
the EPO. Any potential increase in fishing activity would provide net
benefits while continuing to meet IATTC objectives of conserving target
stocks and minimizing impacts to protected species and their
environments. Accordingly, NMFS is issuing this proposed rule to apply
IATTC measures in the overlap area instead of WCPFC measures, except as
described herein.
During development of the 2016 final rule, NMFS stated that, rather
than applying IATTC measures to an individual vessel or gear type and
WCPFC measures to another vessel or gear type, NMFS would apply WCPFC's
management measures to the entire U.S. fleet in the overlap area
because the WCPFC and the IATTC each separately develop a comprehensive
and self-contained package of management
[[Page 60042]]
measures to address similar conservation objectives. As noted during
the development of the 2016 final rule, if one set of management
measures were applied to some vessels while another set of management
measures were applied to other vessels, overall management efforts
would fail to address the conservation objectives of either
organization (80 FR 80742; December 28, 2015). This proposed rule would
follow the same approach as the 2016 final rule by applying to all
vessels, thus maintaining uniformity in management of the overlap area
for the U.S. fleet as a whole, rather than applying on an individual
vessel-basis, or gear type.
When deciding which regulations to apply in the overlap area, NMFS
considered whether all WCPFC-derived regulations should no longer apply
in the overlap area, or whether certain WCPFC-regulations should remain
in effect. The WCPFC and IATTC decisions addressing the overlap area
broadly indicate that a member of both commissions, such as the United
States, is to apply the ``conservation and management measures'' of one
commission in the overlap area. Because these decisions do not address
specific conservation and management measures, a Contracting Party's
decision to implement one commission's conservation and management
measures over the other could have compliance implications where legal
obligations arise under treaty. In other words, as a Contracting Party
to the Convention on the Conservation and Management of Highly
Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPF
Convention) and the Antigua Convention, the United States is obligated
to implement provisions required under both the WCPF Convention and the
Antigua Convention. The WCPF Convention and the Antigua Convention
created the WCPFC and the IATTC, respectively, and decisions of each
commission are subject to their terms.
NMFS believes that while WCPFC and IATTC decisions addressing the
overlap area can provide members with discretion to choose which
conservation and management decisions to apply, it cannot relieve a
Contracting Party of its existing treaty obligations. Accordingly, when
deciding to apply IATTC measures to the overlap area, NMFS considered
whether all WCPFC measures should no longer apply in the overlap area,
or whether certain WCPFC management measures should remain in effect in
order for the United States to continue to meet its obligations under
that WCPF Convention. NMFS proposes that regulations implementing WCPFC
measures for the conservation and management of highly migratory fish
stocks, such as purse seine fishing restrictions, longline fishing
restrictions, and bycatch mitigation measures would no longer apply in
the overlap area, and that WCPFC management measures related to
monitoring, control, and surveillance (MCS) would continue to apply, as
explained in more detail below. NMFS currently implements, and would
continue to implement, the MCS measures pursuant to its obligations
under the WCPF Convention.
Historically, U.S. vessels have not frequently fished for HMS in
the overlap area, but the two gear types that have fished in the
overlap area in recent years are troll vessels that target South
Pacific albacore and purse seine vessels that target tropical tuna
species. The majority of the South Pacific albacore troll fishery
occurs in the WCPFC Area outside the overlap area (i.e., west of
150[deg] W), and some albacore troll fishing occurs in the overlap
area. U.S. purse seine vessel activity in and around the overlap area
has increased since the 2016 final rule went into effect. These
fisheries are described in more detail in the Classification section.
Proposed Action
This proposed rule would change the definition of ``IATTC
Convention Area'' at 50 CFR 300.21 to include the overlap area, so that
all regulations at 50 CFR part 300, subpart C would apply in the
overlap area. The requirements under the Marine Mammal Protection Act
and AIDCP, including observer requirements at 50 CFR 216.24(e), which
currently apply in the overlap area, would also continue to apply under
the proposed rule. As stated above, pursuant to the requirements of the
AIDCP, vessels fishing in the overlap area are currently required to
comply with the regulations for inclusion in the IATTC RVR. However,
under the regulations at 50 CFR 300.22(b)(1), once per year, a vessel
that is permitted and authorized under an alternative international
tuna purse seine fisheries management regime in the Pacific Ocean
(e.g., WCPFC) may exercise an option to fish with purse seine gear to
target tuna in the IATTC Area without its well volume counting towards
the U.S. capacity limit in the IATTC Area for a fishing trip that does
not exceed 90 days in duration. A total of 32 such trips are allowed
each calendar year. Thus, vessels currently fishing in the overlap area
are familiar with and subject to the regulations implementing IATTC
decisions when fishing in the IATTC Area. The following regulations at
50 CFR part 300, subpart O, which implement WCPFC conservation and
management measures for stock management and bycatch matters, would no
longer apply in the overlap area:
Purse seine fishing effort limits (50 CFR 200.223(a));
Purse seine FAD restrictions (50 CFR 300.223(b));
Purse seine catch retention requirements (50 CFR
300.223(d));
Purse seine sea turtle bycatch mitigation requirements (50
CFR 300.223(f));
Whale shark bycatch mitigation requirements (50 CFR
300.223(g)-(h));
Longline bigeye tuna catch limits (50 CFR 300.224(a)); and
Oceanic whitetip and silky shark interaction mitigation
(50 CFR 300.226).
All other regulations implementing the WCPF Convention and WCPFC
decisions would continue to apply in the overlap area. Table 1 shows
the regulations that would apply in the overlap area, and is organized
to illustrate regulations implementing WCPFC decisions that are
comparable to regulations implementing IATTC decisions, or to indicate
where no comparable regulations exist. A detailed comparison of these
regulations is provided in the sections that follow.
Table 1--Comparison of Regulations Implementing WCPFC Decisions and IATTC Decisions and Whether They Would Apply
in the Overlap Area Under the Proposed Rule
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Similar regulations
at 50 CFR 300
50 CFR 300 subpart O Applies in overlap area subpart C or 50 CFR Applies in overlap area
(implementing WCPFC decisions) under proposed rule? 216 (implementing under proposed rule?
IATTC decisions)
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Sec. 300.223(a) Purse seine No.......................... Sec. 300.25(e) Yes.
fishing effort limits. Purse seine
closures.
Sec. 300.223(b) Purse seine No.......................... Sec. 300.28 Purse Yes.
fish aggregating devices. seine FAD
restrictions.
[[Page 60043]]
Sec. 300.223(d) Purse seine No.......................... Sec. 300.27(a) Yes.
catch retention. Tuna retention
requirements for
purse seine
vessels.
Sec. 300.223(f) Purse seine No.......................... Sec. 300.27(c) Yes.
sea turtle mitigation. Purse seine sea
turtle handling
and release.
Sec. 300.223(g)-(h) Purse No.......................... Sec. 300.27(g)- Yes.
seine whale shark mitigation. (h) Purse seine
whale shark
restrictions for
purse seine
vessels.
Sec. 300.224 Longline fishing No.......................... Sec. 300.25(a) Yes.
restrictions. Longline tuna
catch limits.
Sec. 300.226 Oceanic whitetip No.......................... Sec. 300.27(d) Yes.
shark and silky shark. Oceanic whitetip
shark
restrictions; Sec.
300.27(e)-(f)
Silky shark
restrictions.
No comparable requirements...... NA ***...................... Sec. 300.25(f) Yes.
Restrictions on
fishing in
proximity to data
buoys.
No comparable requirements...... NA.......................... Sec. 300.25(g) Yes.
Pacific bluefin
tuna catch limits.
No comparable requirements...... NA.......................... Sec. 300.27(b) Yes.
Release
requirements for
non-tuna species
on purse seine
vessels.
No comparable requirements...... NA.......................... Sec. 300.27(i)- Yes.
(j) Mobulid ray
restrictions.
No comparable requirements...... NA.......................... Sec. 300.27(k) Yes.
Shark handling and
release
requirements for
purse seine
vessels.
No comparable requirements...... NA.......................... Sec. 300.27(l) Yes.
Shark line
prohibition for
longline vessels.
Sec. 300.212 WCPFC vessel Yes......................... Sec. 300.22(b) Yes.
permit endorsements. IATTC vessel
register
requirements.
Sec. 300.213 Vessel Yes......................... No comparable NA.
information requirements for requirements.
fishing in foreign EEZs.
Sec. 300.214 Compliance with Yes......................... No comparable NA.
Laws of Other Nations. requirements.
Sec. 300.215 Observers........ Yes......................... Sec. 216.24(e) Yes.
Purse seine
observers **.
Sec. 300.216 Transshipping, Yes......................... Sec. 300.25(c) Yes.
bunkering and net sharing. Purse seine
transshipment
requirements.
Sec. 300.217 Vessel Yes......................... Sec. Yes.
identification. 300.22(b)(3)(ii)
IMO numbers.
Sec. 300.218 Reporting and Yes *....................... Sec. 300.22 Yes.
recordkeeping requirements. Recordkeeping and
reporting
requirements.
Sec. 300.219 Vessel monitoring Yes......................... Sec. 300.26 Yes.
system. Vessel Monitoring
System.
Sec. 300.221 Facilitation of Yes......................... No comparable NA.
enforcement and inspection. requirements.
Sec. 300.223(e) Purse seine Yes......................... Sec. 216.24(e) Yes.
observer coverage. Purse seine
observers **.
No comparable requirements...... NA.......................... Sec. 216.24 Yes.
Requirements for
U.S. purse seine
vessels fishing
under the
requirements of
the AIDCP (e.g.,
vessel and
operator permit
requirements,
requirements for
fishing on
dolphins, etc.) **.
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* The whale shark reporting requirements at 50 CFR 300.218(g) would no longer apply in the overlap area.
** These regulations also implement provisions of the Marine Mammal Protection Act and the Agreement on the
International Dolphin Conservation Program, and are not located at 50 CFR part 300, subpart C, but instead are
located at 50 CFR part 216, subpart C.
*** NA indicates ``not applicable.''
Note: Titles of regulation sections have been modified in some instances to include additional descriptive
information.
Purse Seine Fishing Effort Restrictions
Under this proposed rule, regulations implementing WCPFC decisions
for purse seine fishing effort would no longer apply in the overlap
area, while regulations implementing IATTC decisions for purse seine
fishing effort would go into effect in the overlap area.
Beginning in 2009, NMFS implemented annual limits on purse seine
fishing effort on the high seas and in the U.S. EEZ in the WCPFC Area
between 20[deg] N latitude and 20[deg] S latitude (50 CFR 300.223(a)).
Under this proposed rule, such purse seine fishing effort limits set
forth in WCPFC conservation and management measures would no longer
apply in the overlap area. However, regulations implementing IATTC
conservation and management measures include purse seine effort
controls that would henceforth apply in the overlap area (50 CFR
300.25(e)). These regulations specify that any U.S. purse seine vessel
must observe a 72-day closure period during each of the calendar years
2019 and 2020.
FAD Management Measures
NMFS has implemented WCPFC FAD management measures ((50 CFR
300.223(b)). These include specific time periods during which purse
seine vessels are prohibited from setting on FADs in the WCPFC Area in
the area between 20[deg] N latitude and 20[deg] S latitude. Currently,
the prohibition periods are from July 1 through September 30 in each
calendar year for the entire WCPFC Area and on the high seas from
November 1 through December 31 in each calendar year. There is also a
limit of 350 drifting active FADs per each U.S. purse seine vessel
fishing in the WCPFC Area. Under the proposed rule, these regulations
that implement WCPFC conservation and management measures would no
longer apply in the overlap area. However, regulations implementing
IATTC conservation and management measures include FAD management
measures that would apply in the overlap area (50 CFR 300.28). These
FAD management measures detailed at 50 CFR 300.28 include the
following: (1) FAD identification requirements that require a unique
code to be marked on the radio or satellite
[[Page 60044]]
buoy or the FAD; (2) U.S. vessel owners and operators of purse-seine
vessels of well volume 1,200 m\3\ or more must not have more than 450
active FADs; (3) U.S. vessel owners and operators of purse-seine
vessels for vessels of volume 426-1,199 m\3\ must not have more than
300 active FADs; (4) U.S. vessel owners and operators of purse-seine
vessels of well volume 13-425 m\3\ must not have more than 120 active
FADs; (5) U.S. vessel owners and operators of purse-seine vessels of
well volume 0-212 m\3\ must not have more than 70 active FADs; (6) U.S.
vessel owners, operators, and crew of purse seine vessels of class size
4-6 must not deploy a FAD during 15 days prior to the start of the
vessel's selected purse seine closure period at 50 CFR 300.25(e)(1);
(7) 15-days prior to the start of the vessel's selected closure period
at 50 CFR 300.25(e)(1), vessel owners, operators, and crew of purse
seine vessels of class size 6 must remove from the water a number of
FADs equal to the number of FADs set upon by the vessel during the same
15 day period; (8) if the FAD design includes a raft, and if mesh
netting is used as part of the structure, the mesh netting shall have a
mesh size less than 7 centimeters and the mesh net must be tightly
wrapped such that no netting hangs below the FAD when deployed; and (9)
any netting used in the subsurface structure of the FAD must be tightly
tied into bundles or have stretched mesh size less than 7 centimeters
in a panel that is weighted on the lower end with at least enough
weight to keep the netting taut in the water column.
Catch Retention and Incidental Catch Release Requirements
NMFS has implemented tuna catch retention requirements for purse
seine vessels in the WCPFC Area. An owner and operator of a fishing
vessel of the United States equipped with purse seine gear must ensure
the retention on board at all times while at sea any bigeye tuna,
yellowfin tuna, or skipjack tuna, except in the following circumstances
as follows: Fish that are unfit for human consumption, including but
not limited to fish that are spoiled, pulverized, severed, or partially
consumed at the time they are brought on board, may be discarded; if at
the end of a fishing trip there is insufficient well space to
accommodate all the fish captured in a given purse seine set, fish
captured in that set may be discarded, provided that no additional
purse seine sets are made during the fishing trip; and fish may be
discarded if necessitated by the occurrence of a serious malfunction of
equipment. Under this proposed rule, the regulations that implement
WCPFC conservation and management measures would no longer apply in the
overlap area. However, regulations implementing IATTC conservation and
management measures include incidental catch and tuna retention
requirements for purse seine vessels that would now apply in the
overlap area (50 CFR 300.27(a)-(b)). The incidental catch release
requirements for non-tuna species would apply to all purse seine
vessels. Tuna retention requirements would apply to class size 4-6
purse seine fishing vessels and would require that bigeye, skipjack,
and yellowfin tuna caught using purse seine gear be retained on board
and landed, except for fish deemed unfit for human consumption for
reasons other than size or if there is insufficient well capacity to
accommodate the entire catch on the last set of a trip. All purse seine
vessels would also be required to release all billfish, ray (not
including mobulid ray, as described in more detail below), dorado, and
other non-tuna fish species, except those being retained for
consumption aboard the vessel, as soon as practicable after being
identified on board the vessel during the brailing operation.
Sea Turtle Interaction Mitigation Requirements
NMFS has implemented specific sea turtle handling requirements for
U.S. purse seine vessels fishing in the WCPFC Area (50 CFR 300.223(f)).
These include possession and use of specific handling gear as well as
specific handling requirements. Under this proposed rule, the
regulations that implement WCPFC conservation and management measures
would no longer apply in the overlap area. However, regulations
implementing IATTC conservation and management measures include
requirements for purse seine vessel interactions with sea turtles (50
CFR 300.27(c)). The regulations implementing IATTC measures specify
special handling and release requirements when a sea turtle is spotted
in the purse seine net, entangled in the net, or brought on board the
vessel alive.
Whale Shark Interaction Mitigation Requirements
NMFS has implemented specific requirements to mitigate interactions
between U.S. purse seine vessels and whale sharks in the WCPFC Area.
These include a prohibition on setting on whale sharks and requirements
for when whale sharks are encircled in purse seine nets (50 CFR
300.223(g)-(h)). Under this proposed rule, these regulations to
implement WCPFC conservation and management measures would no longer
apply in the overlap area. However, regulations implementing IATTC
conservation and management measures include requirements to mitigate
interactions between purse seine vessels and whale sharks (50 CFR
300.27(g)-(h)). These regulations implementing IATTC measures require
owners, operators, and crew to not set or attempt to set a purse seine
on or around a whale shark if the animal is sighted prior to the
commencement of the set or the attempted set. If a whale shark is
encircled in the purse seine net, the crew, operator, and owner would
be required to release it as soon as possible, and must ensure that all
reasonable steps are taken to ensure its safe release without towing
the whale shark out of the purse seine net (e.g., using towing ropes).
Longline Bigeye Tuna Catch Limits
NMFS has implemented a specific bigeye tuna catch limit for U.S.
longline vessels fishing in the WCPFC Area. The limit is 3,554 metric
tons of bigeye tuna per calendar year (50 CFR 300.224(a)). Under this
proposed rule, the regulations implementing these WCPFC conservation
and management measures would no longer apply in the overlap area.
However, regulations implementing IATTC conservation and management
measures include an annual catch limit for longline-caught bigeye tuna
that would apply in the overlap area (50 CFR 300.25(a)). The annual
limit is 750 metric tons of bigeye tuna for vessels over 24 meters in
overall length. The regulations implementing IATTC measures include a
number of requirements that are triggered if and when the annual limit
is reached, including restrictions on transshipment by longline vessels
in the IATTC Area without a valid permit, and restrictions on using
longline gear inside and outside of the IATTC Area on the same trip.
Oceanic Whitetip Shark Interaction Mitigation Requirements
NMFS has implemented specific requirements regarding interactions
with oceanic whitetip shark for all U.S. commercial fishing vessels
fishing for HMS in the WCPFC Area (50 CFR 300.226). These requirements
include a prohibition on the retention, transshipment, storage or
landing of oceanic whitetip shark, and specific requirements for
releasing oceanic whitetip shark that are caught by vessels. Under this
proposed rule, these regulations implementing WCPFC
[[Page 60045]]
conservation and management measures would no longer apply in the
overlap area. However, regulations implementing IATTC conservation and
management measures include similar requirements for oceanic whitetip
shark that would apply in the overlap area (50 CFR 300.27(d)). These
regulations implementing IATTC measures prohibit the crew, operator, or
owner from retaining on board, transshipping, landing, storing,
selling, or offering for sale any part or whole carcass of an oceanic
whitetip shark and require the release of all oceanic whitetip shark
(unharmed to the extent practicable) when brought alongside the vessel.
Silky Shark Interaction Mitigation Requirements
NMFS has implemented specific requirements regarding interactions
with silky sharks for all U.S. commercial fishing vessels fishing for
HMS in the WCPFC Area (50 CFR 300.226). These requirements include a
prohibition on the retention, transshipment, storage or landing of
silky sharks, and specific requirements for releasing silky sharks that
are caught by vessels. Under this proposed rule, these regulations
implementing WCPFC conservation and management measures would no longer
apply in the overlap area. However, regulations implementing IATTC
conservation and management measures include similar requirements for
silky sharks that would apply in the overlap area (50 CFR 300
300.27(e)-(f)). These regulations implementing IATTC measures prohibit
the crew, operator, and owner of a commercial purse seine fishing
vessel from retaining on board, transshipping, storing, or landing any
part or whole carcass of a silky shark caught by the vessel.
Additionally, longline vessel crews, operators, and owners are required
to limit the retained catch of silky shark to a maximum of 20 percent
in weight of the total catch during each fishing trip.
Restrictions on Fishing in Proximity to Data Buoys
Although the WCPFC has adopted a decision for the conservation and
management of data buoys, which NMFS may implement through regulations,
NMFS regulations regarding fishing on data buoys do not currently apply
in the overlap area. Under this proposed rule, regulations implementing
IATTC management measures for fishing on data buoys would go into
effect in the overlap area (50 CFR 300.25(f)). Except when the fishing
vessel is operated as part of a scientific research program, a longline
or purse seine fishing vessel may not be used to fish for highly
migratory species within one nautical mile of an anchored data buoy in
the IATTC Area. A fishing vessel, or any fishing gear, equipment, or
watercraft deployed by such a fishing vessel, cannot be used to
interact with, or engage in conduct that could impair the function of,
a data buoy.
Pacific Bluefin Tuna Catch Limits
There are currently no regulations implementing WCPFC decisions on
Pacific bluefin tuna. Under this proposed rule, NMFS regulations
implementing IATTC decisions on Pacific bluefin tuna would go into
effect in the overlap area (50 CFR 300.25(g)). These regulations
implementing IATTC measures impose biennial, annual and per trip catch
limits to the U.S. commercial fishery for Pacific bluefin tuna. These
regulations also require a purse seine vessel owner or operator to
provide a pre-trip notification to NMFS 24 hours in advance of
departing on the fishing trip during specific periods, as notified by
NMFS.
Mobulid Ray Restrictions
There are no NMFS regulations implementing WCPFC decisions on
mobulid rays that apply in the overlap area. Under this proposed rule,
NMFS regulations implementing IATTC decisions on mobulid rays would go
into effect in the overlap area (50 CFR 300.27(i)-(j). These
regulations implementing IATTC measures prohibit the crew, operator,
and owner of a U.S. commercial fishing vessel from retaining on board,
transshipping, storing, landing, selling, or offering for sale any part
or whole carcass of a mobulid ray, except in the case of any mobulid
ray caught on an observed purse seine vessel if that mobulid ray is not
seen during fishing operations and is delivered into the vessel hold.
Specific handling and release requirements also apply.
Shark Handling and Release Requirements for Purse Seine Vessels
There are no NMFS regulations implementing WCPFC handling and
release requirements for sharks other than the regulations on whale
shark, oceanic whitetip shark, and silky shark that currently apply in
the overlap area and that are described above. Under this proposed
rule, regulations implementing IATTC decisions for general shark
handling and release requirements would go into effect (50 CFR
300.27(k)) in the overlap area. The crew, operator, and owner of a U.S.
commercial purse seine fishing vessel would be required to promptly
release any shark (unharmed to the extent practicable, and whether live
or dead) caught in the IATTC Area, as soon as it is seen in the net or
on the deck, without compromising the safety of any persons. If a shark
is live when caught, the crew, operator, or owner must follow release
procedures specified in the regulations implementing the IATTC
measures. A specific shark line prohibition for longline vessels would
also go into effect and would prohibit any U.S. longline vessel used to
fish for tuna or swordfish from using any shark line in the overlap
area (50 CFR 300.27(l)).
Reporting and Recordkeeping Requirements
Regulations for reporting and recordkeeping implementing the WCPF
Convention and WCPFC decisions and that currently apply in the overlap
area would continue to apply under the proposed rule, except for the
requirement to report on purse seine interactions with whale sharks--
that requirement is connected to the regulations implementing the WCPFC
decision on whale sharks that would no longer apply. Regulations for
reporting and recordkeeping that implement IATTC decisions would go
into effect under the proposed rule and apply in the overlap area.
These regulations are described in detail below.
The requirement to report on purse seine interactions with whale
sharks implementing a WCPFC decision and specified at 50 CFR
300.218(h), would no longer apply in the overlap area. However, a
corresponding whale shark reporting requirement implementing a IATTC
decision would apply in the overlap area (50 CFR 300.22(a)(2)).
Reporting and recordkeeping regulations implementing the WCPF
Convention and decisions that would continue to apply in the overlap
area include catch and effort reporting requirements (50 CFR
300.218(a)), transshipment reporting requirements (50 CFR 300.218(b)),
transshipment notification requirements (50 CFR 300.218(c)), reporting
requirements for discards of bigeye, yellowfin, or skipjack tuna from
purse seine vessels (50 CFR 300.218(e)), reporting requirements for
purse seine net sharing (50 CFR 300.218(f)), and reports of daily purse
seine fishing effort (50 CFR 300.218(g)). Additional reporting and
recordkeeping requirements implementing IATTC decisions would also
apply in the overlap area. This includes specific logbook reporting
requirements (50 CFR 300.22(a)), reporting FAD-related data from purse
seine vessels (50 CFR 300.22(a)(3)(i))
[[Page 60046]]
and reporting on active FADs (50 CFR 300.22(a)(3)(ii)).
WCPFC Record of Fishing Vessels and IATTC Regional Vessel Register
Requirements
Requirements implementing the WCPF Convention and WCPFC decisions
for inclusion on the WCPFC Record of Fishing Vessels would continue to
apply in the overlap area under the proposed rule. These requirements
include providing certain information to obtain an endorsement on a
permit under the regulations implementing the High Seas Fishing
Compliance Act (50 CFR 300, subpart R) and requirements to provide
certain information when fishing only in foreign EEZs (50 CFR 300.212
and 50 CFR 300.213). Additionally, as mentioned above, in order to
comply with the provisions of the AIDCP, vessels fishing in the overlap
area are already required to comply with the IATTC RVR requirements at
50 CFR 300.22(b) and would continue to be subject to those
requirements.
Vessel Identification Requirements
Requirements implementing the WCPF Convention and WCPFC decisions
for vessel identification would continue to apply in the overlap area.
These include specific vessel marking requirements and requirements to
obtain International Maritime Organization (IMO) numbers (50 CFR
300.217). Additionally, as mentioned above, in order to comply with the
provisions of the AIDCP, vessels fishing in the overlap area are
already required to comply with the IMO number requirements as part of
the IATTC RVR requirements at 50 CFR 300.22(b) and would continue to be
subject to these requirements. The IMO number requirements at 50 CFR
300.217 and 50 CFR 300.22(b) are essentially the same in that they both
are applicable to vessels that are 100 gross register tons or greater
and have provisions for exemptions.
Observers
Requirements implementing the WCPF Convention and WCPFC decisions
regarding observers would continue to apply in the overlap area. These
requirements include pre-trip notification requirements for vessels
that are required to carry observers to monitor at-sea transshipments
(50 CFR 300.215(b)), specific provisions for accommodating observers on
vessels (50 CFR 300.215(c)), at-sea transshipment observer coverage
requirements (50 CFR 300.215(d)), and purse seine observer coverage
requirements (50 CFR 300.223(e)). Additionally, as mentioned above, in
order to comply with the provisions of the AIDCP, vessels fishing in
the overlap area are already required to comply with the observer
provisions set forth at 50 CFR 216.24(e), and these provisions would
continue to apply under the proposed rule. These requirements include
specific provisions for how research and observation duties are to be
carried out, specific requirements regarding marine mammals, and
specific provisions for accommodating observers. Currently, vessels
fishing in the overlap area are required to comply with the observer
provisions of regulations implementing the WCPF Convention and
decisions and regulations implementing requirements arising under the
IATTC and AIDCP. In some cases, this requires a vessel to carry an
observer that is designated as a cross-endorsed observer pursuant to a
Memorandum of Cooperation between the WCPFC and the IATTC that allows
such observers to meet the observer requirements of both organizations,
or to carry two separate observers--one to carry out responsibilities
arising under the WCPFC and another to carry out responsibilities
arising under the IATTC and AIDCP. The existing observer coverage
requirements for the overlap area would not change under this proposed
rule.
Transshipment and Net Sharing
Requirements implementing the WCPF Convention and WCPFC decisions
regarding transshipment and net sharing would continue to apply in the
overlap area. These include prohibitions on at-sea transshipment and
bunkering for purse seine vessels (50 CFR 300.216(b)(1)), requirements
for at-sea transshipment observer coverage (50 CFR 300.216(b)(2)),
general restrictions on transshipment and bunkering for all vessels
engaged in commercial fishing of HMS in the WCPFC Area (50 CFR
300.216(b)(3)), and restrictions regarding net sharing (50 CFR
300.216(c)) that allow net sharing only between purse seine vessels in
limited circumstances. Regulations that implement IATTC decisions for
transshipment would go into effect under this proposed rule and would
also apply in the overlap area. These IATTC regulations include
prohibitions on at-sea transshipment for purse seine vessels (50 CFR
300.25(c)). The transshipment regulations implementing IATTC decisions
are identical to one component of the transshipment regulations
implementing the WCPF Convention and WCPFC decision, and thus
application of both the WCPFC and IATTC transshipment prohibition to
purse seine vessels operating in the overlap area would not subject
these vessels to additional or contradictory requirements.
Vessel Monitoring System (VMS)
Requirements implementing the WCPF Convention and WCPFC decisions
regarding VMS would continue to apply in the overlap area under this
proposed rule (50 CFR 300.219) and would apply to commercial fishing
vessels of all sizes. Requirements implementing IATTC decisions
regarding VMS would also go into effect under this proposed rule and
would apply in the overlap area (50 CFR 300.26). The requirements to
implement IATTC decisions apply only to commercial fishing vessels 24
meters or more in overall length. Given that the requirements
implementing the WCPF Convention and WCPFC decisions already apply and
would continue to apply to vessels of all sizes under this proposed
rule, this proposed rule would add no new VMS requirements, and all
U.S. commercial fishing vessels fishing for HMS in the overlap area
would still be required to continuously operate the VMS at all times,
with certain exceptions.
Other MCS Measures
Requirements implementing the WCPF Convention and WCPFC decisions
regarding compliance with laws of other nations (50 CFR 300.214) and
facilitation of enforcement and inspection (50 CFR 300.221) would
continue to apply in the overlap area under this proposed rule. The
regulations implementing IATTC decisions do not include specific
provisions regarding compliance with laws of other nations or
facilitation of enforcement and inspection.
Classification
The Assistant Administrator for Fisheries has determined that this
proposed rule is consistent with the WCPFCIA, the Tuna Conventions Act,
and other applicable laws, subject to further consideration after
public comment.
Administrative Procedure Act
Section 304(b) of the Magnuson-Stevens Fishery Conservation and
Management Act (16 U.S.C. 1801 et seq.) provides for a 15-day comment
period for these types of fishery rules. NMFS finds ``good cause''
under the Administrative Procedure Act that a longer notice and comment
period would be unnecessary and contrary to
[[Page 60047]]
the public interest. 5 U.S.C. 553(b)(B). Specifically, NMFS issued a
temporary rule closing the high seas and U.S. EEZ between the latitudes
of 20[deg] N and 20[deg] S in the WCPFC Area to purse seine fishing
from October 9, 2019, through the end of the calendar year (84 FR
52035; October 1, 2019), due to reaching the 2019 fishing effort limit
specified by the WCPFC and implemented by NMFS at 50 CFR 200.223(a).
Thus, U.S. purse seine vessels are currently unable to fish on the high
seas in the overlap area. Once the regulatory changes in this proposed
rule go into effect, that fishery closure would no longer apply.
Providing more than a 15-day comment period on this proposed rule would
unnecessarily lengthen the U.S. purse seine fishery closure in the
overlap area, and thus, NMFS finds good cause to provide 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. NMFS
submitted determinations to Hawaii and each of the Territories on
February 7, 2019, for review by the responsible state and territorial
agencies under section 307 of the CZMA. The CNMI replied by letter
dated March 7, 2019, stating that based on the information provided, it
has determined that the action will be undertaken in a manner that is
consistent to the maximum extent practicable with the enforceable
policies of the CNMI's coastal management program. Hawaii replied by
letter dated February 15, 2019, stating that, because the overlap area
is outside of the jurisdiction of the Hawaii Coastal Zone Management
Program's enforceable policies, it would not be responding to the
consistency determination. No responses were received from Guam or
American Samoa, and thus, concurrence with the respective consistency
determinations is presumed (15 CFR 930.41).
Executive Order 12866
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866. This proposed rule is not an
Executive Order 13771 regulatory action because this rule is not
significant under Executive Order 12866.
Regulatory Flexibility Act (RFA)
An 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 RFA purposes only, NMFS has established a small business size
standard for businesses, including their affiliates, whose primary
industry is commercial fishing (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 overlap area,
including longline vessels, albacore troll vessels, and purse seine
vessels. The number of such vessels is the number authorized to fish in
both the IATTC Area and WCPFC Area. The numbers as of October 2, 2019,
as reflected on the IATTC Vessel Register and the WCPFC Record of
Fishing Vessels, were 143 longline vessels, 24 albacore troll vessels,
and 16 purse seine vessels.
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 fishing entities, and almost 85% of the purse seine
fishing entities, 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 the average revenue,
by vessel, for the three years of 2016-2018 (most recent data
available) reveals that average annual revenue among vessels in the
fleet was about $9.0 million, and the three-year annual averages were
less than the $11 million threshold for 13 of the 16 vessels on both
the RVR and RFV.
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 proposed requirements and the expected
costs of complying with the proposed requirements are described in this
proposed rule.
As described in the Paperwork Reduction Act subsection, 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 overlap area,
under the following Control Numbers: (1) 0648-148, West Coast Region
Pacific Tuna Fisheries Logbook and Fish Aggregating Device Data
Collection; (2) 0648-0649, Transshipment Requirements under the WCPFC;
(3) 0648-0218, South Pacific Tuna Act; (4) 0648-0595, WCPFC Vessel
Information Family of Forms; and (5) 0648-0204, West Coast Region
Family of Forms.
Fulfillment of the requirements under the proposed rule is not
expected to require any professional skills that affected vessel owners
and operators do not already possess.
For longline fishing entities, although as previously described
there are about 145 such entities that are authorized to be used for
fishing in the overlap area, there has been very little fishing
activity in the overlap area (and no longline fishing activity at all
since 2010), and NMFS has not identified any factors affecting the
longline fishing status quo. Consequently, NMFS expects the proposed
action to have little or no effect in terms of recordkeeping,
reporting, or other compliance requirements for affected longline
fishing entities.
For albacore troll fishing entities, NMFS does expect fishing
activity in the overlap area, so affected troll fishing entities could
experience effects from the proposed rule. Under the proposed rule, two
substantive sets of requirements that implement conservation and
management measures for HMS would be newly applied to the overlap area:
The regulations to implement IATTC conservation and management measures
that restrict fishing in proximity to data buoys (50 CFR 300.25(f)),
and the regulations to implement IATTC conservation and management
measures prohibiting the retention of mobulid rays (with limited
exceptions) and requiring that they be handled and released in
specified
[[Page 60048]]
manners (50 CFR 300.27(i)-(j)). The new data buoy requirements could
increase operating costs by increasing the time spent at sea in the
overlap area. For example, the vessel operator and crew would have to
avoid interactions with data buoys, and if the vessel or gear becomes
entangled with a data buoy they would need to make sure to disentangle
the gear carefully, to cause as little damage to the data buoys as
possible. As NMFS found in the analysis in support of the 2011
rulemaking establishing these requirements throughout the IATTC Area,
NMFS expects interactions with data buoys to be rare (76 FR 68332;
November 4, 2011). Moreover, data from the National Data Buoy Center
(NDBC) indicates that only one anchored data buoy is located in the
overlap area. Since interactions with data buoys would be unlikely to
occur in the overlap area, the compliance costs are expected to be
minor or nil. NMFS does not expect the mobulid ray requirements to lead
to any compliance costs for albacore troll fishing vessels, because
there is very little bycatch in albacore troll fisheries (81 FR 50401;
August 1, 2016).
Some of the regulations implementing WCPFC conservation and
management measures (at 50 CFR part 300, subpart O) would no longer
apply in the overlap area, but they would be replaced with comparable
regulations implementing IATTC conservation and management measures (at
50 CFR part 300, subpart C) that will now apply in this area.
Specifically, the IATTC prohibition against retaining oceanic whitetip
shark, implemented by 50 CFR 300.27(d)), would now apply in the overlap
area. The requirements under the regulations implementing WCPFC
decisions and IATTC decisions are similar, and NMFS does not expect any
substantive change in compliance costs. There would also be new
requirements that apply in the overlap area for albacore troll fishing
entities under regulations implementing IATTC decisions for MCS
measures, including logbook reporting requirements (50 CFR
300.22(a)(1)) and VMS requirements (50 CFR 300.26). However, because
the affected albacore troll fishing entities are already required to
comply with the requirements regarding the IATTC RVR and to comply with
the logbook reporting and VMS requirements when fishing in the IATTC
Area, the addition of the regulations that implement IATTC decisions
would not require substantial changes in practices and would not be
expected to bring any change in compliance costs.
For the purse seine fishing entities, the removal of several
regulations that implement WCPFC conservation and management measures
from the overlap area would be expected to reduce compliance costs, but
those reductions would be somewhat offset by compliance costs
associated with the imposition of similar regulations to implement
IATTC conservation and management measures in the overlap area. The
regulations that would be removed from the overlap area are the annual
limits on purse seine fishing effort and the seasonal prohibitions on
setting on FADs (50 CFR 300.223(b)). The regulations that would be
applied are the seasonal closures on purse seine fishing and purse
seine FAD restrictions (50 CFR 300.28). The respective purse seine
measures of IATTC and WCPFC are not directly comparable, and NMFS
cannot predict their respective potential compliance costs with any
precision. Accordingly, only a qualitative comparison of their
respective compliance costs is possible. The measures as they would
apply on the high seas are what matter for this analysis, since no
portion of the U.S. EEZ is within the overlap area, and no U.S.
commercial HMS fishing vessels have had a history of fishing in the
foreign EEZs in the overlap area. If the IATTC measures were applied in
the overlap area in this proposed rule, U.S. purse seine fishing
entities would be subject to one of the IATTC's two 72-day prohibitions
on purse seine fishing (50 CFR 300.25(e)) in the overlap area each
year. If instead the WCPFC measures applied in the overlap area, U.S.
purse seine fishing entities would be allowed, collectively, to spend
1,270 fishing days on the high seas in the WCPFC Area each year, with
fishing days spent in the overlap area counting against that limit, and
they would be subject to 5-month prohibitions on fishing on FADs in the
overlap area each year (50 CFR 300.223). Although, the two sets of
measures are not directly comparable, the IATTC measures would provide
greater fishing opportunities to most or all affected purse seine
fishing entities than those of WCPFC, because the IATTC purse seine
closure period is shorter than the purse seine closures that have been
in effect on the high seas in the WCPO due to the purse seine fishing
effort limits specified by the WCPFC (in 2015, closure from June 15
through December 31, 2015; in 2016, closure from September 2 through
December 31, 2016; in 2018, closure from September 18 through December
31, 2018; in 2019, closure from October 9 through December 31, 2019) or
the WCPFC FAD prohibition periods. Further, the vessels operating under
IATTC measures have greater operational certainty (affording logistical
and maintenance predictability) because the vessel owner chooses
between one of two closure periods rather than being subject to a
variable closure date under WCPFC measures. It is not possible to
predict the degree to which those opportunities would be taken
advantage of, but the greater opportunities and the flexibility they
provide indicate that application of IATTC measures in the overlap area
would likely reduce compliance costs for the directly affected purse
seine fishing entities.
Purse seine fishing entities authorized to fish in the WCPFC Area
but not in the overlap area would not be directly affected by the
proposed rule, but they could be indirectly affected. The fishing
effort limits set forth in WCPFC conservation and management measures
would no longer apply in the overlap area, allowing greater fishing
effort in the overlap area. Additionally, under the proposed rule,
fishing effort in the overlap area would not be counted against WCPFC
limits, potentially increasing fishing opportunities for the U.S. purse
seine fleet outside the overlap area. This is based on trends in recent
years showing increased U.S. purse seine fishing activity in the
overlap area. If all of the fishing days in the overlap area no longer
count towards the WCPFC-specified fishing effort limits, it is likely
that more fishing days would be available to U.S. purse seine vessels
on the high seas in the WCPFC Area outside of the overlap area.
In addition to the changes to the purse seine-specific regulations
just described, several substantive requirements would apply to purse
seine fishing entities in the overlap area under the proposed rule that
do not currently apply in that area: The regulations implementing IATTC
conservation and management measures on FADs (50 CFR 300.28), the
Pacific bluefin tuna catch limit (50 CFR 300.25(g)), restrictions on
fishing in proximity to data buoys (50 CFR 300.25(f)), requirements to
release non-tuna species (50 CFR 300.27), requirements to release
mobulid rays (with limited exceptions) and release them in specified
manners (50 CFR 300.27(i)-(j)), and requirements to release sharks and
handle them in specified manners (50 CFR 300.27(k)), as explained in
more detail below.
The FAD management measures include FAD identification regulations
that would require that deployed FADs be physically marked with unique
identifiers, as well as limits on the number of active FADs,
restrictions on
[[Page 60049]]
FAD deployments and removals, and FAD design regulations, which would
require that all FADs on board or deployed meet certain specifications,
particularly with respect to the use of netting. As mentioned above,
U.S. purse seine vessels fishing in the overlap area are currently
required to comply with the regulations for inclusion on the IATTC RVR.
Thus, although this proposed rule would change the area of application
of the FAD management regulations at 50 CFR 300.28, all of the affected
vessels are currently complying with those regulations when fishing in
the EPO. Data from 2014-2018 shows that all current U.S. purse seine
vessels that fished in the overlap area also fished in the EPO. For
affected entities, the change in area of application of the FAD
management regulations probably would only bring a minor increase in
costs or no increased costs, as they are already complying with those
regulations when fishing in the EPO outside the overlap area. Moreover,
there are comparable limits for the number of active FADs currently
applicable in the overlap area under the regulations implementing WCPFC
decisions at 50 CFR 300.223(b).
The Pacific bluefin tuna catch limit that would go into effect in
the overlap area under the proposed rule would not be expected to bring
compliance costs to the large U.S. purse seine vessels that fish in the
overlap area, as these vessels generally do not target or catch Pacific
bluefin tuna.
The data buoy requirements could increase operating costs by
increasing the time spent at sea for a given amount of fishing. For
example, vessels would not be able to fish within one nautical mile of
an anchored data buoy, they would have to avoid interactions with data
buoys, and if the vessel or gears becomes entangled with a data buoy,
the operator and crew would need to make sure to disentangle the gear
carefully to cause as little damage to the data buoys as possible. As
NMFS found in the 2011 rulemaking that established these requirements
throughout the IATTC Area, NMFS expects interactions with data buoys to
be rare (76 FR 68332; November 4, 2011). Moreover, there is a low
number of data buoys located in the overlap area. Based on data from
the NDBC, only one anchored data buoy is located in the overlap area.
Thus, interactions with data buoys would be even more unlikely to
occur, so the compliance costs are expected to be minor.
The requirements to release non-tuna species, mobulid rays, and
sharks are not expected to substantially affect business revenues,
because none of the affected fishing entities target non-tuna species,
sharks, or rays. However, the requirements could lead to increased time
spent by vessel operators and crew handling and releasing incidentally
caught non-tuna species, sharks, and rays in the specified manner, and
so could bring modest compliance costs. In addition, these requirements
could detrimentally affect revenues if targeted tuna are incidentally
released when these species are intentionally released from the brailer
to comply with the regulations. However, affected U.S. purse seine
vessel owners and operators are already subject to these requirements
when fishing in the IATTC Area, and thus the small change in the area
of application of these requirements would not be expected to
substantially increase compliance costs.
Some regulations implementing WCPFC conservation and management
measures for HMS (at 50 CFR part 300, subpart O) would no longer apply
in the overlap area. However, comparable regulations that implement
IATTC conservation and management measures for HMS (at 50 CFR part 300,
subpart C) would now apply in the overlap area. Regulations that would
shift in this manner include requirements to retain all catch of bigeye
tuna, skipjack tuna, and yellowfin tuna (50 CFR 300.27(a)), not to
retain oceanic whitetip shark (50 CFR 300.27(d)), and not to retain
silky shark (50 CFR 300.27(e)); requirements regarding sea turtle
handling and release (50 CFR 300.27(c)); whale shark restrictions (50
CFR 300.27(g)-(h)); and whale shark encirclement reporting requirements
(50 300.22(a)(2)). For these requirements, the two sets of regulations
are similar, and NMFS does not expect any substantive change in
compliance costs.
There would also be five requirements for purse seine fishing
entities under the regulations implementing IATTC conservation and
management measures that would go into effect under the proposed rule.
These requirements include reporting on FAD interactions (50 CFR
300.22(a)(3)(i)), reporting on active FADs (50 CFR 300.22(a)(3)(ii)),
logbook reporting requirements (50 CFR 300.22(a)(1)), transshipment
requirements (50 CFR 300.25(c)), and VMS requirements (50 CFR 300.26).
The first two requirements (reporting on FAD interactions and reporting
on active FADs) would bring substantive new requirements. Regarding the
requirement for reporting on FAD interactions, as NMFS found in the
2016 rulemaking that established the requirement throughout the IATTC
Area (excepting the overlap area), NMFS expects a minimal additional
time burden for owners and operators of large purse seine vessels to
record the specified information for FAD interactions activities, and
expects minor impacts on business incomes (81 FR 86966; December 2,
2016). Regarding reporting on active FADs, as NMFS found in the 2018
rulemaking establishing the requirement throughout the IATTC Area
(excepting the overlap area), NMFS does not expect any increase in
compliance costs, because it is likely that vessel operators are
already collecting the necessary information (83 FR 15503; April 11,
2018). The latter three requirements (logbook reporting requirements,
transshipment requirements, and VMS requirements), are not expected to
bring any new compliance costs, because the affected purse seine
fishing entities are currently subject to those regulations when
fishing in the IATTC Area outside of the overlap area, and the addition
of these regulations in the overlap area would not require substantial
changes in practices. Moreover, the regulations implementing the IATTC
prohibition on at-sea transshipments for purse seine vessels is
essentially identical to regulations already in effect in the overlap
area implementing the WCPF Convention and WCPFC decisions. Similarly,
the regulations implementing the IATTC VMS provisions are essentially
identical to regulations already in effect in the overlap area
implementing the WCPF Convention and WCPFC decisions, but would just
apply to a smaller group of vessels--vessels 24 meters or more in
overall length. Given that the requirements implementing the WCPF
Convention and WCPFC decisions already apply and would continue to
apply under the proposed rule to vessels of all sizes, there would be
no new VMS requirements under the proposed rule, and all U.S.
commercial fishing vessels fishing for HMS in the overlap area would
still be required to continuously operate the VMS at all times, with
certain exceptions.
In summary, this proposed rule would be expected to have little or
no effect on the compliance costs of any affected entities, except
purse seine fishing entities. For purse seine fishing entities, this
rule would bring modest increases in compliance costs associated with
several requirements that would go into effect in the overlap area.
However, these costs would be counteracted by a potentially substantial
reduction in compliance costs associated with removal of the
regulations to implement WCPFC conservation and management measures for
fishing effort limits and
[[Page 60050]]
FAD prohibition periods from application in the overlap area.
Disproportionate Impacts
NMFS does not expect any disproportionate economic impacts between
small and large entities operating vessels resulting from this rule.
Furthermore, NMFS does not expect any disproportionate economic impacts
based on vessel size, gear, or homeport.
Duplicating, Overlapping, and Conflicting Federal Regulations
NMFS has not identified any Federal regulations that conflict with
the proposed regulations. NMFS has identified several Federal
regulations that duplicate or overlap with the proposed regulations.
These include: The proposed logbook reporting requirements at 50 CFR
300.22(a)(1), which overlap with existing regulations at 50 CFR
300.34(b)(1) and 300.218(a), the proposed transshipment requirements at
50 CFR 300.25(c), which overlap with existing regulations at 50 CFR
300.216(b), and the proposed VMS regulations at 50 CFR 300.26, which
overlap with existing regulations at 50 CFR 300.45 and 300.219.
However, as described above, these regulations impose requirements
which are substantially similar to, or in some cases identical to,
requirements imposed under regulations currently applicable in the
overlap area. Thus, application of these overlapping requirements is
not expected to create significant economic burdens on vessel owners
and operators.
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''). For most affected entities, the proposed action is
likely to have no economic impact or a positive economic impact
compared to the no-action alternative. NMFS also considered the
alternative of removing application from the overlap area of all
regulations derived from WCPFC conservation and management measures and
from the WCPF Convention. This alternative would likely result in lower
compliance costs than the proposed action for some affected entities,
but it would not be consistent with U.S. obligations under the WCPF
Convention, since the decisions of the IATTC and WCPFC regarding the
overlap area cannot alter existing obligations under the WCPF
Convention. Therefore, NMFS does not prefer this alternative.
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
overlap area, under the following Control Numbers: (1) 0648-0148, West
Coast Region Pacific Tuna Fisheries Logbook and Fish Aggregating Device
Data Collection; (2) 0648-0649, Transshipment Requirements under the
WCPFC; (3) 0648-0218, South Pacific Tuna Act; (4) 0648-0595, WCPFC
Vessel Information Family of Forms; and (5) 0648-0204, West Coast
Region Family of Forms.
List of Subjects in 50 CFR Part 300
Administrative practice and procedure, Fish, Fisheries, Fishing,
Fishing vessels, Marine resources, Reporting and recordkeeping
requirements, Treaties.
Dated: November 4, 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
proposed to be amended as follows:
PART 300--INTERNATIONAL FISHERIES REGULATIONS
Subpart C--Eastern Pacific Tuna Fisheries
0
1. The authority citation for part 300, subpart C, continues to read as
follows:
Authority: 16 U.S.C. 951 et seq.
0
2. In Sec. 300.21, revise the definition of ``Convention Area or IATTC
Convention Area'' to read as follows:
Sec. 300.21 Definitions
* * * * *
Convention Area or IATTC Convention Area means: All waters of the
Pacific Ocean within the area bounded by the west coast of the Americas
and by 50[deg] N latitude from the coast of North America to its
intersection with 150[deg] W longitude, then 150[deg] W longitude to
its intersection with 50[deg] S latitude, and then 50[deg] S latitude
to its intersection with the coast of South America.
* * * * *
Subpart O--Western and Central Pacific Fisheries for Highly
Migratory Species
0
3. The authority citation for 50 CFR part 300, subpart O, continues to
read as follows:
Authority: 16 U.S.C. 6901 et seq.
0
4. In Sec. 300.211, add a definition of ``Overlap Area'' in
alphabetical order to read as follows:
Sec. 300.211 Definitions
* * * * *
Overlap Area means the area of overlap of the IATTC area of
competence of the commission and the Convention Area, as described by
all waters of the Pacific Ocean in the area bounded by 50[deg] S
latitude, 4[deg] S latitude, 150[deg] W longitude, and 130[deg] W
longitude.
* * * * *
0
5. In Sec. 300.218, revise paragraph (h) to read as follows:
Sec. 300.218 Reporting and recordkeeping requirements.
* * * * *
(h) Whale shark encirclement reports. The owner and operator of a
fishing vessel of the United States used for commercial fishing in the
Convention Area that encircles a whale shark (Rhincodon typus) with a
purse seine in the Convention Area shall ensure that the incident is
recorded by the end of the day on the catch report forms maintained
pursuant to Sec. 300.34(c)(1), in the format specified by the Pacific
Islands Regional Administrator. This paragraph does not apply in the
territorial seas or archipelagic waters of any nation, as defined by
the domestic laws and regulations of that nation and recognized by the
United States, or in the Overlap Area.
0
6. In Sec. 300.223, revise the introductory text to read as follows:
Sec. 300.223 Purse seine fishing restrictions.
None of the requirements of this section apply in the territorial
seas or archipelagic waters of the United States or any other nation,
as defined by the domestic laws and regulations of that nation and
recognized by the United States. Except as required in subsection (e)
below, none of the requirements of this section apply in the Overlap
Area. All dates used in this section are in Universal Coordinated Time,
also known as UTC; for example: The year 2013 starts at 00:00 on
January 1, 2013 UTC and ends at 24:00 on December 31, 2013 UTC; and
July 1, 2013, begins at 00:00 UTC and ends at 24:00 UTC.
* * * * *
0
7. In Sec. 300.224, add introductory text to read as follows:
Sec. 300.224 Longline fishing restrictions.
None of the requirements of this section apply in the Overlap Area.
* * * * *
[[Page 60051]]
0
8. In Sec. 300.226, add introductory text to read as follows:
Sec. 300.226 Oceanic whitetip shark and silky shark.
None of the requirements of this section apply in the Overlap Area.
* * * * *
[FR Doc. 2019-24304 Filed 11-6-19; 8:45 am]
BILLING CODE 3510-22-P