81 FR 39213 - Pacific Bluefin Tuna in the Eastern Pacific Ocean; Response to Petition for Rulemaking

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 81, Issue 116 (June 16, 2016)

Page Range		39213-39216
FR Document		2016-14239

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

Federal Register, Volume 81 Issue 116 (Thursday, June 16, 2016)

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

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

RIN 0648-XD344

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

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

ACTION: Notice of decision on petition.

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

DATES: June 16, 2016.

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

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

Public Input on the Petition

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

[[Page 39214]]

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

Analysis of Petition and Decision

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

[[Page 39215]]

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

[[Page 39216]]

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

References

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

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

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

Federal Register / Vol. 81, No. 116 / Thursday, June 16, 2016 / Rules and Regulations 39213

methods, under Executive Order 12898 Dated: May 3, 2016. ACTION: Notice of decision on petition.
(59 FR 7629, February 16, 1994). Jared Blumenfeld,
In addition, the SIP is not approved SUMMARY: NMFS announces its decision
Regional Administrator, Region IX.
to apply on any Indian reservation land on a petition for rulemaking submitted
or in any other area where the EPA or Part 52, chapter I, title 40 of the Code by the Center for Biological Diversity
an Indian tribe has demonstrated that a of Federal Regulations is amended as (CBD). In their petition, CBD requested
tribe has jurisdiction. In those areas of follows: that NMFS implement additional
Indian country, the rule does not have domestic regulations to address the
PART 52—[AMENDED] relative impacts of the U.S. fleet on the
tribal implications and will not impose
substantial direct costs on tribal Pacific bluefin tuna (PBF) stock, which
■ 1. The authority citation for part 52 is overfished and subject to overfishing.
governments or preempt tribal law as continues to read as follows:
specified by Executive Order 13175 (65 Outside of the scope of their petition for
FR 67249, November 9, 2000). Authority: 42 U.S.C. 7401 et seq. rulemaking, CBD also requested that
The Congressional Review Act, 5 NMFS develop recommendations for
U.S.C. 801 et seq., as added by the Small Subpart F—California international fishery management
Business Regulatory Enforcement ■ 2. Section 52.220 is amended by organizations to take actions to end
Fairness Act of 1996, generally provides adding paragraphs (c)(442)(i)(F)(3), overfishing of PBF. In light of public
that before a rule may take effect, the (c)(447)(i)(D)(4), and (c)(472) to read as comments, NMFS is responding to each
agency promulgating the rule must follows: element of the petition but referring the
submit a rule report, which includes a specific requests for rulemaking under
copy of the rule, to each House of the § 52.220 Identification of plan. the Magnuson-Stevens Fishery
Congress and to the Comptroller General * * * * * Conservation and Management Act
of the United States. The EPA will (c) * * * (MSA) to the Pacific Fishery
submit a report containing this action (442) * * * Management Council (Pacific Council)
and other required information to the (i) * * * for further consideration. The decision
U.S. Senate, the U.S. House of (F) * * * was made on June 9, 2016.
Representatives, and the Comptroller (3) Previously approved on April 28, DATES: June 16, 2016.
General of the United States prior to 2015 in paragraph (442)(i)(F)(1) of this FOR FURTHER INFORMATION CONTACT:
publication of the rule in the Federal section and now deleted with Heidi Taylor, NMFS, 562–980–4039.
Register. A major rule cannot take effect replacement in (472)(i)(A)(1), Rule 1.1, SUPPLEMENTARY INFORMATION: NMFS
until 60 days after it is published in the ‘‘General Provisions and Definitions,’’ received a letter from CBD, an
Federal Register. This action is not a revised on May 8, 2013. environmental non-governmental
‘‘major rule’’ as defined by 5 U.S.C. * * * * * organization, on April 9, 2014. In the
804(2). (447) * * * letter, CBD asserted that PBF (Thunnus
Under section 307(b)(1) of the Clean (i) * * * orientalis) are not adequately protected
Air Act, petitions for judicial review of under the Fishery Management Plan for
(D) * * *
this action must be filed in the United U.S. West Coast Fisheries for Highly
(4) Rule 410.9, ‘‘Wood Products
States Court of Appeals for the Migratory Species (HMS FMP) and that
Surface Coating Operations,’’ adopted
appropriate circuit by August 15, 2016. the Pacific Council failed to meet its
on March 13, 2014.
Filing a petition for reconsideration by statutory duty to develop
the Administrator of this final rule does * * * * *
recommendations for domestic
not affect the finality of this action for (472) New and amended regulations
regulations in response to NMFS’
the purposes of judicial review nor does were submitted on November 13, 2015,
determination that the PBF stock is
it extend the time within which a by the Governor’s designee.
overfished and subject to overfishing (78
petition for judicial review may be filed, (i) Incorporation by reference.
FR 41033, July 9, 2013). Specifically,
and shall not postpone the effectiveness (A) Yolo-Solano Air Quality
CBD petitioned NMFS to amend the
of such rule or action. Parties with Management District.
HMS FMP or initiate a rulemaking
objections to this direct final rule are (1) Rule 1.1, General Provisions and
under the authority of the MSA, 16
encouraged to file a comment in Definitions, revised July 8, 2015.
U.S.C. 1801 et seq., to include PBF as
response to the parallel notice of [FR Doc. 2016–14098 Filed 6–15–16; 8:45 am] a prohibited species until the stock is
proposed rulemaking for this action BILLING CODE 6560–50–P rebuilt, thereby placing a moratorium on
published in the Proposed Rules section retention of PBF by U.S. fishing vessels.
of today’s Federal Register, rather than As an alternative, CBD proposed that
file an immediate petition for judicial DEPARTMENT OF COMMERCE NMFS establish annual catch limits and
review of this direct final rule, so that a permanent minimum size requirement
the EPA can withdraw this direct final National Oceanic and Atmospheric to protect PBF of age classes 1 and 2 and
rule and address the comment in the Administration that NMFS amend the HMS FMP to
proposed rulemaking. This action may establish specific reference points for
not be challenged later in proceedings to 50 CFR Part 660 PBF to guide science-based management
enforce its requirements (see section RIN 0648–XD344 of the stock. Outside of the scope of the
307(b)(2)). petition for rulemaking, CBD requested
Pacific Bluefin Tuna in the Eastern that NMFS develop recommendations to
jstallworth on DSK7TPTVN1PROD with RULES

List of Subjects in 40 CFR Part 52
Pacific Ocean; Response to Petition the Secretary of State and Congress to
Environmental protection, Air for Rulemaking end PBF overfishing at the international
pollution control, Incorporation by level.
reference, Intergovernmental relations, AGENCY: National Marine Fisheries
Ozone, Particulate matter, Reporting Service (NMFS), National Oceanic and Public Input on the Petition
and recordkeeping requirements, Atmospheric Administration (NOAA), NMFS published a Federal Register
Volatile organic compounds. Commerce. document on July 24, 2014 (79 FR

VerDate Sep<11>2014 13:07 Jun 15, 2016 Jkt 238001 PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 E:\FR\FM\16JNR1.SGM 16JNR1

Federal Register / Vol. 81, No. 116 / Thursday, June 16, 2016 / Rules and Regulations 39215

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

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therefore is not being referred to the Ocean, PBF is primarily caught from of the stock at the upcoming IATTC and
Pacific Council for further Taiwan to Hokkaido, with troll, purse Northern Committee meetings in 2016.
consideration. Nonetheless, NMFS seine, trap, drift net, and other gear in
References
found merit in certain aspects of CBD’s coastal or nearshore areas. Pacific-wide
request for additional international catches of PBF on the high seas are Bayliff, W. 2000. Status of Bluefin Tuna in
recommendations. NMFS’ response to primarily taken by the longline fleets of the Pacific Ocean. Inter-American
these additional requests is included Japan, Korea, and Chinese Taipei. Tropical Tuna Commission. La Jolla, CA,
below. However, these fleets catch small USA.
First, section 304(i)(2)(B) of the MSA, amounts of PBF on the high seas in Davies, T.K., S. Martin, C. Mees, E. Chassot
cited by CBD, requires the appropriate and D.M. Kaplan. 2012. A review of the
comparison to catches from other
fishery management councils, and not conservation benefits of marine
fishing grounds (Bayliff, 2000; ISC, protected areas for pelagic species
NMFS,1 to develop recommendations to 2015). associated with fisheries. ISSF Technical
the Secretary of State and Congress to Lastly, NMFS remains committed to Report 2012–02. International Seafood
end overfishing and rebuild overfished working with the U.S. Delegations to the Sustainability Foundation, McLean,
stocks. As stated earlier, the Pacific IATTC and WCPFC to promote Pacific- Virginia, USA. 36 pp.
Council had already provided their wide conservation and management Inter-American Tropical Tuna Commission
recommendations for international measures, a rebuilding plan, and a long- (IATTC). 2014. Pacific Bluefin Tuna. IN:
actions to NMFS on April 1, 2014, term management framework with Fishery Status Report No. 12: Tuna and
thereby addressing their obligations appropriate and compatible reference Billfishes in the Eastern Pacific Ocean,
under section 304(i)(2)(B) of the MSA. points. As previously mentioned, both pp. 101–107. Inter-American Tropical
NMFS acted on the Council’s Tuna Commission, La Jolla, California
RFMOs adopted (and NMFS
recommendations when providing 2014.
implemented) more restrictive measures International Scientific Committee for Tuna
support to the U.S. Delegations for both for 2015 and 2016 than in previous
the IATTC and WCPFC. and Tuna-like Species in the North
resolutions. The ISC evaluated these Pacific Ocean (ISC). 2014. Stock
As for CBD’s requests for NMFS to measures in the context of future stock Assessment for Pacific Bluefin Tuna in
make specific recommendations to assessments, spawning stock biomass the Pacific Ocean in 2014. Report of the
Congress and the State Department, projections, and progress towards the Pacific Bluefin Tuna Working Group,
NMFS is not convinced at this time that provisional multi-annual rebuilding International Scientific Committee for
either closing the high seas to fishing or plan for PBF adopted by the WCPFC. Tuna and Tuna-like Species in the North
establishing size limits for PBF would The United States submitted a proposal Pacific Ocean.
be effective management tools for to the 89th Meeting of the IATTC to aid ISC. 2015. Report of the Fifteenth Meeting of
rebuilding the PBF stock or serving in establishing a rebuilding plan for PBF
the International Scientific Committee
national interests. The conservation for Tuna and Tuna-like Species in the
that includes a paragraph about North Pacific Ocean. Plenary Session.
benefits of closing the high seas to
establishing reference points and July 15–20, 2015; Kona, Hawaii.
fishing, at least in terms of changes in
harvest control rules for the long term Maunder, M. and A. Aires-da-Silva. 2014.
total catch, will likely be determined by
management of PBF. The United States Developing Conservation Measure for
the degree of movement of targeted
also submitted a proposal for a Bluefin Tuna in the Eastern and Western
species, as well as the mobility of Regions of the Pacific Ocean: Factors to
rebuilding plan and a proposal for a
vessels and opportunities to exploit the Consider and Fishery Impact Analysis.
precautionary management framework
stock in alternative areas (Davies et al., Document IATTC -87 Inf-B, IATTC, LA
for PBF to the 11th Meeting of the
2012). Furthermore, most of the Jolla, CA. 20 pp.
Northern Committee, which is a
commercial catches of PBF in the EPO Stohs, S. 2016. Regulatory Impacts of
are taken by purse seiners and nearly all subsidiary body of the WCPFC that Recreational Fishery Management
of those catches have not been made on develops recommendations for PBF Alternatives for North Pacific Bluefin
the high seas; instead, most have management measures. These proposals Tuna. Working Paper; NMFS Southwest
occurred west of Baja California and can be found here: https:// Fisheries Science Center, La Jolla, CA.
California, within about 100 nautical www.wcpfc.int/system/files/NC11-DP-03
Authority: 16 U.S.C. 1801 et seq.
miles of the coast, between about 23° N. %20%28PBF%20rebuilding
%20plan%29.pdf (IATTC proposal) and Dated: June 10, 2016.
and 35° N. (IATTC, 2014). Similarly,
https://www.wcpfc.int/meetings/11th- Samuel D. Rauch III,
most of the recreational PBF catch
occurs in the EEZs of Mexico and the regular-session-northern-committee Deputy Assistant Administrator for
(Northern Committee proposals). While Regulatory Programs, National Marine
United States. In the western Pacific Fisheries Service.
neither proposal was adopted, the
1 Except for Atlantic highly migratory species, United States plans to submit proposals [FR Doc. 2016–14239 Filed 6–13–16; 4:15 pm]
which are managed directly by NMFS. intended to contribute to the rebuilding BILLING CODE 3510–22–P
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Document Created: 2016-06-16 00:37:24
Document Modified: 2016-06-16 00:37:24

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Notice of decision on petition.
Dates		June 16, 2016.
Contact		Heidi Taylor, NMFS, 562-980-4039.
FR Citation		81 FR 39213
RIN Number		0648-XD34

81 FR 39213 - Pacific Bluefin Tuna in the Eastern Pacific Ocean; Response to Petition for Rulemaking

DEPARTMENT OF COMMERCENational Oceanic and Atmospheric Administration

Federal Register Volume 81, Issue 116 (June 16, 2016)

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration