83_FR_21839 83 FR 21748 - International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Fishing Limits in Purse Seine and Longline Fisheries, Restrictions on the Use of Fish Aggregating Devices in Purse Seine Fisheries, and Transshipment Prohibitions

83 FR 21748 - International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Fishing Limits in Purse Seine and Longline Fisheries, Restrictions on the Use of Fish Aggregating Devices in Purse Seine Fisheries, and Transshipment Prohibitions

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 83, Issue 91 (May 10, 2018)

Page Range21748-21761
FR Document2018-09896

NMFS seeks comments on this proposed rule issued under authority of the Western and Central Pacific Fisheries Convention Implementation Act (WCPFC Implementation Act). The proposed rule would implement recent decisions of the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC or Commission). These decisions include the following management measures: limits on fishing effort by U.S. purse seine vessels in the U.S. exclusive economic zone and on the high seas between the latitudes of 20[deg] N and 20[deg] S in the area of application of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention); restrictions regarding the use of fish aggregating devices (FADs) for U.S. purse seine fishing vessels; limits on the catches of bigeye tuna by U.S. longline vessels in the Convention area; prohibitions on U.S. vessels used to fish for highly migratory species from engaging in transshipment in a particular area of the high seas (the Eastern High Seas Special Management Area or EHSSMA); and removal of existing reporting requirements for vessels transiting the EHSSMA. The rule also would make corrections to outdated cross references in existing regulatory text. This action is necessary to satisfy the obligations of the United States under the Convention, to which it is a Contracting Party.

Federal Register, Volume 83 Issue 91 (Thursday, May 10, 2018)
[Federal Register Volume 83, Number 91 (Thursday, May 10, 2018)]
[Proposed Rules]
[Pages 21748-21761]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-09896]



[[Page 21748]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

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


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

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS seeks comments on this proposed rule issued under 
authority of the Western and Central Pacific Fisheries Convention 
Implementation Act (WCPFC Implementation Act). The proposed rule would 
implement recent decisions of the Commission for the Conservation and 
Management of Highly Migratory Fish Stocks in the Western and Central 
Pacific Ocean (WCPFC or Commission). These decisions include the 
following management measures: limits on fishing effort by U.S. purse 
seine vessels in the U.S. exclusive economic zone and on the high seas 
between the latitudes of 20[deg] N and 20[deg] S in the area of 
application of the Convention on the Conservation and Management of 
Highly Migratory Fish Stocks in the Western and Central Pacific Ocean 
(Convention); restrictions regarding the use of fish aggregating 
devices (FADs) for U.S. purse seine fishing vessels; limits on the 
catches of bigeye tuna by U.S. longline vessels in the Convention area; 
prohibitions on U.S. vessels used to fish for highly migratory species 
from engaging in transshipment in a particular area of the high seas 
(the Eastern High Seas Special Management Area or EHSSMA); and removal 
of existing reporting requirements for vessels transiting the EHSSMA. 
The rule also would make corrections to outdated cross references in 
existing regulatory text. This action is necessary to satisfy the 
obligations of the United States under the Convention, to which it is a 
Contracting Party.

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

ADDRESSES: You may submit comments on the proposed rule and the 
regulatory impact review (RIR) prepared for the proposed rule, 
identified by NOAA-NMFS-2018-0050, by either of the following methods:
     Electronic submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal.
    1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0050,
    2. Click the ``Comment Now!'' icon, complete the required fields, 
and
    3. Enter or attach your comments.
    --OR--
     Mail: Submit written comments to Michael D. Tosatto, 
Regional Administrator, NMFS, Pacific Islands Regional Office (PIRO), 
1845 Wasp Blvd., Building 176, Honolulu, HI 96818.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
might not be considered by NMFS. All comments received are a part of 
the public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name and address), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).
    An initial regulatory flexibility analysis (IRFA) prepared under 
authority of the Regulatory Flexibility Act is included in the 
Classification section of the SUPPLEMENTARY INFORMATION section of this 
document.
    Copies of the RIR, the 2015 programmatic environmental assessment, 
and 2012 environmental assessment prepared for National Environmental 
Policy Act (NEPA) purposes are available at www.regulations.gov or may 
be obtained from Michael D. Tosatto, Regional Administrator, NMFS PIRO 
(see address above).
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to PIRO at the address listed above and 
by email to OIRA_Submission@omb.eop.gov or fax to (202) 395-5806.

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

SUPPLEMENTARY INFORMATION:

Background on the Convention

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

Background on the Conservation and Management Measures

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

[[Page 21749]]

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

Proposed Action

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

Longline Bigeye Tuna Catch Limits

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

[[Page 21750]]

    The calendar year longline bigeye tuna catch limit will apply only 
to U.S.-flagged longline vessels operating as part of the U.S. longline 
fisheries. The limit will not apply to U.S. longline vessels operating 
as part of the longline fisheries of American Samoa, CNMI, or Guam. 
Existing regulations at 50 CFR 300.224(b), (c), and (d) detail the 
manner in which longline-caught bigeye tuna is attributed among the 
fisheries of the United States and the U.S. Participating Territories.
    Consistent with the basis for the limits prescribed in CMM 2017-01 
and with regulations issued by NMFS to implement bigeye tuna catch 
limits in U.S. longline fisheries as described below, the catch limit 
is measured in terms of retained catches--that is, bigeye tuna that are 
caught by longline gear and retained on board the vessel.
1. Announcement of the Limit Being Reached
    As set forth under the existing regulations at 50 CFR 300.224(e), 
if NMFS determines that the limit is expected to be reached in a 
calendar year, NMFS will publish a notice in the Federal Register to 
announce specific fishing restrictions that will be effective from the 
date the limit is expected to be reached until the end of the calendar 
year. NMFS will publish the notice of the restrictions at least 7 
calendar days before the effective date to provide vessel owners and 
operators with advance notice. Periodic forecasts of the date the limit 
is expected to be reached will be made available to the public, such as 
by posting on a website, to help vessel owners and operators plan for 
the possibility of the limit being reached.
2. Restrictions After the Limit Is Reached
    As set forth under the existing regulations at 50 CFR 300.224(f), 
if the limit is reached, the restrictions that will be in effect will 
include the following:
    a. Retain on board, transship, or land bigeye tuna: Starting on the 
effective date of the restrictions and extending through December 31 of 
the given calendar year, it will be prohibited to use a U.S. fishing 
vessel to retain on board, transship, or land bigeye tuna captured in 
the Convention Area by longline gear, except as follows:
    First, any bigeye tuna already on board a fishing vessel upon the 
effective date of the restrictions can be retained on board, 
transshipped, and/or landed, provided that they are landed within 14 
days after the restrictions become effective. A vessel that had 
declared to NMFS pursuant to 50 CFR 665.803(a) that the current trip 
type is shallow-setting is not subject to this 14-day landing 
restriction, so these vessels will be able to land bigeye tuna more 
than 14 days after the restrictions become effective.
    Second, bigeye tuna captured by longline gear can be retained on 
board, transshipped, and/or landed if they are caught by a fishing 
vessel registered for use under a valid American Samoa Longline Limited 
Access Permit, or if they are landed in American Samoa, Guam, or CNMI. 
However, the bigeye tuna must not be caught in the portion of the U.S. 
EEZ surrounding the Hawaiian Archipelago, and must be landed by a U.S. 
fishing vessel operated in compliance with a valid permit issued under 
50 CFR 660.707 or 665.801.
    Third, bigeye tuna captured by longline gear can be retained on 
board, transshipped, and/or landed if they are caught by a vessel that 
is included in a specified fishing agreement under 50 CFR 665.819(d), 
in accordance with 50 CFR 300.224(f)(iv).
    b. Transshipment of bigeye tuna to certain vessels: Starting on the 
effective date of the restrictions and extending through December 31 of 
the calendar year, it will be prohibited to transship bigeye tuna 
caught in the Convention Area by longline gear to any vessel other than 
a U.S. fishing vessel operated in compliance with a valid permit issued 
under 50 CFR 660.707 or 665.801.
    c. Fishing inside and outside the Convention Area: To help ensure 
compliance with the restrictions related to bigeye tuna caught by 
longline gear in the Convention Area, two additional, related 
prohibitions would be in effect starting on the effective date of the 
restrictions and extending through December 31 of the calendar year. 
First, vessels are prohibited from fishing with longline gear both 
inside and outside the Convention Area during the same fishing trip, 
with the exception of a fishing trip that is in progress at the time 
the announced restrictions go into effect. In that exceptional case, 
the vessel still must land any bigeye tuna taken in the Convention Area 
within 14 days of the effective date of the restrictions, as described 
above. Second, if a vessel is used to fish using longline gear outside 
the Convention Area and enters the Convention Area at any time during 
the same fishing trip, the longline gear on the fishing vessel must be 
stowed in a manner so as not to be readily available for fishing while 
the vessel is in the Convention Area, specifically, the hooks, branch 
or dropper lines, and floats used to buoy the mainline must be stowed 
and not available for immediate use, and any power-operated mainline 
hauler on deck must be covered in such a manner that it is not readily 
available for use. These two prohibitions do not apply to the following 
vessels: (1) Vessels on declared shallow-setting trips pursuant to 50 
CFR 665.803(a); and (2) vessels operating for the purposes of this rule 
as part of the longline fisheries of American Samoa, Guam, or the CNMI. 
This second group includes vessels registered for use under valid 
American Samoa Longline Limited Access Permits and vessels landing 
their bigeye tuna catch in one of the three U.S. Participating 
Territories, so long as these vessels conduct fishing activities in 
accordance with the conditions described above, and vessels included in 
a specified fishing agreement under 50 CFR 665.819(d), in accordance 
with 50 CFR 300.224(f)(iv).

FAD Restrictions

    In accordance with CMM 2017-01, NMFS proposes to establish a FAD 
prohibition period from July through September in each calendar year in 
the Convention Area between the latitudes of 20[deg] N and 20[deg] S 
(inclusive of the EEZs and high seas in the Convention Area). Regarding 
the additional consecutive two-month FAD prohibition period on the high 
seas in the Convention Area, after considering the objectives of CMM 
2017-01, the expected economic impacts on U.S. fishing operations and 
the nation as a whole, and expected environmental and other effects, 
NMFS expects that a high seas FAD prohibition period in November and 
December may be somewhat more cost-effective than a FAD prohibition 
period in April and May. For this reason, NMFS is proposing to 
implement the high seas FAD prohibition period in November and December 
for each calendar year. We specifically seek public comment on which 
option is more appropriate. A comparison of the two options' expected 
direct economic impacts on affected fishing businesses is provided in 
the RIR.
    As currently defined in 50 CFR 300.211, a FAD is ``any artificial 
or natural floating object, whether anchored or not and whether 
situated at the water surface or not, that is capable of aggregating 
fish, as well as any object used for that purpose that is situated on 
board a vessel or otherwise out of the water. The definition of FAD 
does not include a vessel.'' Under this proposed rule, the regulatory 
definition of a FAD would not change. Although the definition of a FAD 
does not include a vessel, the restrictions during the FAD

[[Page 21751]]

prohibition periods would include certain activities related to fish 
that have aggregated in association with a vessel, or drawn by a 
vessel, as described below.
    The prohibitions applicable to these proposed FAD-related measures 
are in existing regulations at 50 CFR 300.223(b)(1)(i)-(v). 
Specifically, during the July-September FAD prohibition periods in each 
calendar year, and on the high seas in November and December, owners, 
operators, and crew of fishing vessels of the United States equipped 
with purse seine gear shall not do any of the following activities in 
the Convention Area in the area between 20[deg] N latitude and 20[deg] 
S latitude:
    (1) Set a purse seine around a FAD or within one nautical mile of a 
FAD;
    (2) Set a purse seine in a manner intended to capture fish that 
have aggregated in association with a FAD or a vessel, such as by 
setting the purse seine in an area from which a FAD or a vessel has 
been moved or removed within the previous eight hours, setting the 
purse seine in an area in which a FAD has been inspected or handled 
within the previous eight hours, or setting the purse seine in an area 
into which fish were drawn by a vessel from the vicinity of a FAD or a 
vessel;
    (3) Deploy a FAD into the water;
    (4) Repair, clean, maintain, or otherwise service a FAD, including 
any electronic equipment used in association with a FAD, in the water 
or on a vessel while at sea, except that a FAD may be inspected and 
handled as needed to identify the FAD, identify and release 
incidentally captured animals, un-foul fishing gear, or prevent damage 
to property or risk to human safety; and a FAD may be removed from the 
water and if removed may be cleaned, provided that it is not returned 
to the water.
    (5) From a purse seine vessel or any associated skiffs, other 
watercraft or equipment, submerge lights under water; suspend or hang 
lights over the side of the purse seine vessel, skiff, watercraft or 
equipment, or direct or use lights in a manner other than as needed to 
illuminate the deck of the purse seine vessel or associated skiffs, 
watercraft or equipment, to comply with navigational requirements, and 
to ensure the health and safety of the crew. These prohibitions would 
not apply during emergencies as needed to prevent human injury or the 
loss of human life, the loss of the purse seine vessel, skiffs, 
watercraft or aircraft, or environmental damage.
    This proposed rule would revise the introductory paragraph of 50 
CFR 300.223(b)(1) to make it more clear that the prohibitions apply 
only to owners, operators, and crew of purse seine fishing vessels. 
NMFS has recently received inquiries as to whether the prohibitions 
apply to the owners, operators, and crew of vessels using other gear 
types. This proposed rule would also make a technical change to 50 CFR 
300.223(b)(1)(iv)(B) to clarify that, during the FAD prohibition 
periods, a FAD may be removed from the water to be repaired, cleaned, 
maintained, or otherwise serviced, provided that it is not returned to 
the water. This minor change ensures consistency with the introductory 
language in that paragraph.
    NMFS has recently issued final regulations to implement provisions 
of a resolution adopted by the Inter-American Tropical Tuna Commission 
(IATTC) that includes restrictions on the number of FADs with activated 
instrumented buoys for each purse seine vessel deployed at sea in the 
IATTC area at any one time (see Final Rule; 83 FR 15503, published 
April 11, 2018). In order to provide some consistency to the regulated 
community, NMFS is proposing similar regulations in this rule to 
implement the limit regarding FADs with activated instrumented buoys 
specified in CMM 2017-01.
    Under the proposed rule, an active FAD is defined as a FAD that is 
equipped with a buoy with a clearly marked reference number allowing 
its identification and equipped with a satellite tracking system to 
monitor its position, as specified by the definition of instrumented 
buoy in CMM 2017-01.
    CMM 2017-01 specifies that the buoy shall be activated exclusively 
on board the vessel. In order to implement this provision, the proposed 
rule specifies that the tracking equipment must be turned on while the 
FAD is onboard the vessel and before it is deployed in the water. In 
accordance with CMM 2017-01, under the proposed rule, each U.S. purse 
seine vessel would have a limit of 350 active drifting FADs in the 
Convention Area at any one time.

Purse Seine Fishing Effort Limits

    In the past, NMFS has implemented the U.S. purse seine fishing 
effort limits on the high seas and in the U.S. EEZ adopted by the 
Commission as a single combined limit in a combined area of the high 
seas and U.S. EEZ termed the Effort Limit Area for Purse Seine or 
ELAPS. NMFS' reasoning for combining the high seas and U.S. EEZ limits 
was that it afforded more operational flexibility to the fleet and 
there are no substantial differences in terms of effects to living 
marine resources for treating the two areas separately or combined so 
long as the overall effort remained equal or less than the sum of the 
two limits. For this proposed rule, in light of CMM 2017-01's provision 
allowing the United States to transfer some of its EEZ days to the high 
seas, there is a need to separately account for the U.S. high seas 
limit and the U.S. EEZ limit. Thus, NMFS will no longer combine the two 
limits under a single limit. As stated above, CMM 2017-01 specifies a 
limit of 1,270 fishing days per year for the high seas and a limit of 
558 fishing days per year for the U.S. EEZ. The proposed rule would 
establish a limit of 1,370 fishing days on the high seas and a separate 
limit of 458 fishing days in the U.S. EEZ. These numbers utilize the 
provision of CMM 2017-01 provided to alleviate the economic hardship 
experienced by American Samoa during a fishery closure and transfer 100 
fishing days from the U.S. EEZ effort limit to the high seas effort 
limit.
    CMM 2017-01 also specifies that the United States may add an 
additional 100 fishing days to its annual purse seine fishing effort 
limit in the U.S. EEZ if the limit in the U.S. EEZ is reached by 
October 1, 2018. As discussed above, NMFS is proposing to to implement 
the elements of the rule so they are effective until they are amended 
or replaced. Thus, under the proposed rule, when NMFS expects that the 
U.S. EEZ effort limit would be reached by October 1, NMFS would publish 
a notice in the Federal Register, no later than seven days prior to 
October 1, to increase the U.S. EEZ effort limit by 100 fishing days 
for that calendar year.
    The meaning of ``fishing day'' is defined at 50 CFR 300.211; that 
is, any day in which a fishing vessel of the United States equipped 
with purse seine gear searches for fish, deploys a FAD, services a FAD, 
or sets a purse seine, with the exception of setting a purse seine 
solely for the purpose of testing or cleaning the gear and resulting in 
no catch.
    NMFS will monitor the number of fishing days spent in the U.S. EEZ 
and on the high seas using data submitted in logbooks and other 
available information. If and when NMFS determines that a limit is 
expected to be reached by a specific future date, it will publish a 
notice in the Federal Register announcing that the purse seine fishery 
in the area where the limit is expected to be reached will be closed 
starting on a specific future date and will remain closed until the end 
of the calendar year. NMFS will publish that notice at least seven days 
in advance of the closure date. Starting on the announced closure date, 
and for the remainder of

[[Page 21752]]

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

Eastern High Seas Special Management Area

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

Administrative Changes to Existing Regulations

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

Classification

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

Coastal Zone Management Act (CZMA)

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

Executive Order 12866

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

Regulatory Flexibility Act (RFA)

    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the RFA. The IRFA describes the economic 
impact this proposed rule, if adopted, would have on small entities. A 
description of the action, why it is being considered as well as its 
objectives, and the legal basis for this action are contained in the 
SUMMARY section of the preamble and in other sections of this 
SUPPLEMENTARY INFORMATION section of the preamble. The analysis 
follows:

Estimated Number of Small Entities Affected

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

Recordkeeping, Reporting, and Other Compliance Requirements

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

[[Page 21753]]

the types of professional skills necessary to fulfill the requirements 
are described below for each of the first four elements of the proposed 
rule. The fifth element, administrative changes to existing 
regulations, is not considered further in this IRFA because it would be 
of a housekeeping nature and not have any substantive effects on any 
entities.
1. Longline Bigeye Tuna Catch Limits
    This element of the proposed rule would not establish any new 
reporting or recordkeeping requirements. The new compliance requirement 
would be for affected vessel owners and operators to cease retaining, 
landing, and transshipping bigeye tuna caught with longline gear in the 
Convention Area if and when the bigeye tuna catch limit of 3,554 mt 
(reduced by the amount of any overages in the preceding year) is 
reached in any of the years 2018-2020, for the remainder of the 
calendar year, subject to the exceptions and provisos described in 
other sections of this SUPPLEMENTARY INFORMATION section of the 
preamble. Although the restrictions that would come into effect in the 
event the catch limit is reached would not prohibit longline fishing, 
per se, they are sometimes referred to in this analysis as constituting 
a fishery closure.
    Fulfillment of this requirement is not expected to require any 
professional skills that the vessel owners and operators do not already 
possess. The costs of complying with this requirement are described 
below to the extent possible.
    Complying with this element of the proposed rule could cause 
foregone fishing opportunities and result in associated economic losses 
in the event that the bigeye tuna catch limit is reached in any of the 
years 2018-2020 and the restrictions on retaining, landing, and 
transshipping bigeye tuna are imposed for portions of those years. 
These costs cannot be projected quantitatively with any certainty. The 
proposed annual limit of 3,554 mt can be compared to catches in 2005-
2008, before limits were in place. The average annual catch in that 
period was 4,709 mt. Based on that history, as well as fishing patterns 
in 2009-2016, when limits were in place, there appears to be a 
relatively high likelihood of the proposed limits being reached in 
2018-2020. In 2015, for example, which saw exceptionally high catches 
of bigeye tuna, the limit of 3,502 mt was estimated to have been 
reached by, and the fishery was closed on, August 5 (see temporary rule 
published July 28, 2015; 80 FR 44883). The fishery was subsequently re-
opened for vessels included in agreements with the governments of the 
CNMI and Guam under regulations implementing Amendment 7 to the Fishery 
Ecosystem Plan for Pelagic Fisheries of the Western Pacific Region 
(Pelagics FEP) (50 CFR 665.819). In 2016, the limit of 3,554 mt was 
estimated to have been reached by September 9, 2016, and in 2017, the 
limit of 3,138 mt was estimated to have been reached by September 1, 
2017. Thus, if bigeye tuna catch patterns in 2018-2020 are like those 
in 2005-2008, the limit would be reached in the fourth quarter of the 
year, and if they are like those in 2015, 2016, or 2017, the limit 
would be reached in the third quarter of the year.
    If the bigeye tuna limit is reached before the end of any of the 
years 2018-2020 and the Convention Area longline bigeye tuna fishery is 
consequently closed for the remainder of the calendar year, it can be 
expected that affected vessels would shift to the next most profitable 
fishing opportunity (which might be not fishing at all). Revenues from 
that next best alternative activity reflect the opportunity costs 
associated with longline fishing for bigeye tuna in the Convention 
Area. The economic cost of the proposed rule would not be the direct 
losses in revenues that would result from not being able to fish for 
bigeye tuna in the Convention Area, but rather the difference in 
benefits derived from that activity and those derived from the next 
best activity. The economic cost of the proposed rule on affected 
entities is examined here by first estimating the direct losses in 
revenues that would result from not being able to fish for bigeye tuna 
in the Convention Area as a result of the catch limit being reached. 
Those losses represent the upper bound of the economic cost of the 
proposed rule on affected entities. Potential next-best alternative 
activities that affected entities could undertake are then identified 
in order to provide a (mostly qualitative) description of the degree to 
which actual costs would be lower than that upper bound.
    Upper bounds on potential economic costs can be estimated by 
examining the projected value of longline landings from the Convention 
Area that would not be made as a result of reaching the limit. For this 
purpose, it is assumed that, absent this proposed rule, bigeye tuna 
catches in the Convention Area in each of the years 2018-2020 would be 
5,000 mt, slightly more than the average in 2005-2008. Under this 
scenario, imposition of annual limits of 3,554 mt would result in 29 
percent less bigeye tuna being caught each year than under no action. 
In the deep-set fishery, catches of marketable species other than 
bigeye tuna would likely be affected in a similar way if vessels do not 
shift to alternative activities. Assuming for the moment that ex-vessel 
prices would not be affected by a fishery closure, under the proposed 
rule, revenues in 2018-2020 to entities that participate exclusively in 
the deep-set fishery would be approximately 29 percent less than under 
no action. Average annual ex-vessel revenues (from all species) per mt 
of bigeye tuna caught during 2005-2008 were about $14,190/mt (in 2014 
dollars, derived from the latest available annual report on the pelagic 
fisheries of the western Pacific Region (Western Pacific Regional 
Fishery Management Council, 2014, Pelagic Fisheries of the Western 
Pacific Region: 2012 Annual Report. Honolulu, Western Pacific Fishery 
Management Council)). If there are 128 active vessels in the fleet, as 
there were during 2005-2008, on average, then under the no-action 
scenario of fleet-wide anual catches of 5,000 mt, each vessel would 
catch 39 mt/yr, on average. Reductions of 29 percent in 2018-2020 as a 
result of the proposed limits would be about 11 mt per year. Applying 
the average ex-vessel revenues (from all species) of $14,190 per mt of 
bigeye tuna caught, the reductions in ex-vessel revenue per vessel 
would be $160,000 per year, on average.
    In the shallow-set fishery, affected entities would bear limited 
costs in the event of the limit being reached (but most affected 
entities also participate in the deep-set fishery and might bear costs 
in that fishery, as described below). The cost would be about equal to 
the revenues lost from not being able to retain or land bigeye tuna 
captured while shallow-setting in the Convention Area, or the cost of 
shifting to shallow-setting in the eastern Pacific Ocean (EPO), which 
is to the east of 150 degrees W longitude, whichever is less. In the 
fourth calendar quarters of 2005-2008, almost all shallow-setting 
effort took place in the EPO, and 97 percent of bigeye tuna catches 
were made there, so the cost of a bigeye tuna fishery closure to 
shallow-setting vessels would appear to be very limited. During 2005-
2008, the shallow-set fishery caught an average of 54 mt of bigeye tuna 
per year from the Convention Area. If the proposed bigeye tuna catch 
limit is reached even as early as July 31 in any of the years 2018-
2020, the Convention Area shallow-set fishery would have caught at that 
point, based on 2005-2008 data, on average, 99 percent of its average 
annual bigeye tuna catches. Imposition of the landings restriction at

[[Page 21754]]

that point in any of the years 2018-2020 would result in the loss of 
revenues from approximately 0.5 mt (1 percent of 54 mt) of bigeye tuna, 
which, based on recent ex-vessel prices, would be worth no more than 
$5,000. Thus, expecting about 27 vessels to engage in the shallow-set 
fishery (the annual average in 2005-2012), the average of those 
potentially lost annual revenues would be no more than $200 per vessel. 
The remainder of this analysis focuses on the potential costs of 
compliance in the deep-set fishery.
    It should be noted that the impacts on affected entities' profits 
would be less than impacts on revenues when considering the costs of 
operating vessels, because costs would be lower if a vessel ceases 
fishing after the catch limit is reached. Variable costs can be 
expected to be affected roughly in proportion to revenues, as both 
variable costs and revenues would stop accruing once a vessel stops 
fishing. But affected entities' costs also include fixed costs, which 
are borne regardless of whether a vessel is used to fish--e.g., if it 
is tied up at the dock during a fishery closure. Thus, profits would 
likely be adversely impacted proportionately more than revenues.
    As stated previously, actual compliance costs for a given entity 
might be less than the upper bounds described above, because ceasing 
fishing would not necessarily be the most profitable alternative 
opportunity when the catch limit is reached. Two alternative 
opportunities that are expected to be attractive to affected entities 
include: (1) Deep-set longline fishing for bigeye tuna in the 
Convention Area in a manner such that the vessel is considered part of 
the longline fishery of American Samoa, Guam, or the CNMI; and (2) 
deep-set longline fishing for bigeye tuna and other species in the EPO. 
These two opportunities are discussed in detail below. Four additional 
opportunities are: (3) Shallow-set longline fishing for swordfish (for 
deep-setting vessels that would not otherwise do so), (4) deep-set 
longline fishing in the Convention Area for species other than bigeye 
tuna, (5) working in cooperation with vessels operating as part of the 
longline fisheries of the Participating Territories--specifically, 
receiving transshipments at sea from them and delivering the fish to 
the Hawaii market, and (6) vessel repair and maintenance. A study by 
NMFS of the effects of the WCPO bigeye tuna longline fishery closure in 
2010 (Richmond, L., D. Kotowicz, J. Hospital and S. Allen, 2015, 
Monitoring socioeconomic impacts of Hawai`i's 2010 bigeye tuna closure: 
Complexities of local management in a global fishery, Ocean & Coastal 
Management 106:87-96) did not identify the occurrence of any 
alternative activities that vessels engaged in during the closure, 
other than deep-setting for bigeye tuna in the EPO, vessel maintenance 
and repairs, and granting lengthy vacations to employees. Based on 
those findings, NMFS expects that alternative opportunities (3), (4), 
(5) and (6) are probably unattractive relative to the first two 
alternatives, and are not discussed here in any further detail. NMFS 
recognizes that vessel maintenance and repairs and granting lengthy 
vacations to employees are two alternative activities that might be 
taken advantage of if the fishery is closed, but no further analysis of 
their mitigating effects is provided here.
    Before examining in detail the two potential alternative fishing 
opportunities that would appear to be the most attractive to affected 
entities, it is important to note that under the proposed rule, once 
the limit is reached and the WCPO bigeye tuna fishery is closed, 
fishing with longline gear both inside and outside the Convention Area 
during the same trip would be prohibited (except in the case of a 
fishing trip that is in progress when the limit is reached and the 
restrictions go into effect). For example, after the restrictions go 
into effect, during a given fishing trip, a vessel could be used for 
longline fishing for bigeye tuna in the EPO or for longline fishing for 
species other than bigeye tuna in the Convention Area, but not for 
both. This reduced operational flexibility would bring costs, because 
it would constrain the potential profits from alternative 
opportunities. Those costs cannot be quantified.
    A vessel could take advantage of the first alternative opportunity 
(deep-setting for bigeye tuna in a manner such that the vessel is 
considered part of the longline fishery of one of the three U.S. 
Participating Territories), by three possible methods: (a) Landing the 
bigeye tuna in one of the three Participating Territories, (b) holding 
an American Samoa Longline Limited Access Permit, or (c) being 
considered part of a Participating Territory's longline fishery, by 
agreement with one or more of the three Participating Territories under 
the regulations implementing Amendment 7 to the Pelagics FEP (50 CFR 
665.819). In the first two circumstances, the vessel would be 
considered part of the longline fishery of the Participating Territory 
only if the bigeye tuna were not caught in the portion of the U.S. EEZ 
around the Hawaiian Islands and were landed by a U.S. vessel operating 
in compliance with a permit issued under the regulations implementing 
the Pelagics FEP or the Fishery Management Plan for U.S. West Coast 
Fisheries for Highly Migratory Species.
    With respect to the first method of engaging in alternative 
opportunity 1 (1.a.) (landing the bigeye tuna in one of the 
Participating Territories), there are three potentially important 
constraints. First, whether the fish are landed by the vessel that 
caught the fish or by a vessel to which the fish were transshipped, the 
costs of a vessel transiting from the traditional fishing grounds in 
the vicinity of the Hawaiian Archipelago to one of the Participating 
Territories would be substantial. Second, none of these three locales 
has large local consumer markets to absorb substantial additional 
landings of fresh sashimi-grade bigeye tuna. Third, transporting the 
bigeye tuna from these locales to larger markets, such as markets in 
Hawaii, the U.S. west coast, or Japan, would bring substantial 
additional costs and risks. These cost constraints suggest that this 
alternative opportunity has limited potential to mitigate the economic 
impacts of the proposed rule on affected small entities.
    The second method of engaging in the first alternative opportunity 
(1.b.) (having an American Samoa Longline Limited Access Permit), would 
be available only to the subset of the Hawaii longline fleet that has 
both Hawaii and American Samoa longline permits (dual permit vessels). 
Vessels that do not have both permits could obtain them if they meet 
the eligibility requirements and pay the required costs. For example, 
the number of dual permit vessels increased from 12 in 2009, when the 
first WCPO bigeye tuna catch limit was established, to 23 in 2016. The 
previously cited NMFS study of the 2010 fishery closure (Richmond et 
al. 2015) found that bigeye tuna landings of dual permit vessels 
increased substantially after the start of the closure on November 22, 
2010, indicating that this was an attractive opportunity for dual 
permit vessels, and suggesting that those entities might have 
benefitted from the catch limit and the closure.
    The third method of engaging in the first alternative opportunity 
(1.c.) (entering into an Amendment 7 agreement), was also available in 
2011-2017 (in 2011-2013, under section 113(a) of Public Law 112-55, 125 
Stat. 552 et seq., the Consolidated and Further Continuing 
Appropriations Act, 2012, continued by Public Law 113-6, 125 Stat. 603, 
section 110, the

[[Page 21755]]

Department of Commerce Appropriations Act, 2013; hereafter, ``section 
113(a)''). As a result of agreements that were in place in 2011-2014, 
the WCPO bigeye tuna fishery was not closed in any of those years. In 
2015, 2016, and 2017 the fishery was closed but then reopened when 
agreements went into effect. Participation in an Amendment 7 agreement 
would likely not come without costs to fishing businesses. As an 
indication of the possible cost, the terms of the agreement between 
American Samoa and the members of the Hawaii Longline Association (HLA) 
in effect in 2011 and 2012 included payments totaling $250,000 from the 
HLA to the Western Pacific Sustainable Fisheries Fund, equal to $2,000 
per vessel. It is not known how the total cost was allocated among the 
members of the HLA, so it is possible that the owners of particular 
vessels paid substantially more than or less than $2,000.
    The second alternative opportunity (2) (deep-set fishing for bigeye 
tuna in the EPO), would be an option for affected entities only if it 
is allowed under regulations implementing the decisions of the IATTC. 
NMFS has issued a final rule to implement the IATTC's most recent 
resolution on the management of tropical tuna stocks (83 FR 15503; 
April 11, 2018). The final rule establishes an annual limit of 750 mt 
on the catch of bigeye tuna in the EPO by vessels at least 24m in 
length in each of the years 2018-2020. Annual longline bigeye tuna 
catch limits have been in place for the EPO in most years since 2004. 
Since 2009, when the limit was 500 mt, it was reached in 2013 (November 
11), 2014 (October 31), and 2015 (August 12). In 2016 NMFS forecasted 
that the limit would be reached July 25 and subsequently closed the 
fishery, but later determined that the catch limit had not been reached 
and re-opened the fishery on October 4, 2016 (81 FR 69717). The limit 
was not reached in 2017.
    The highly seasonal nature of bigeye tuna catches in the EPO and 
the relatively high inter-annual variation in catches prevents NMFS 
from making a useful prediction of whether and when the EPO limits in 
2018-2020 are likely to be reached. If it is reached, this alternative 
opportunity would not be available for large longline vessels, which 
constitute about a quarter of the fleet.
    Historical fishing patterns can provide an indication of the 
likelihood of affected entities making use of the opportunity of deep-
setting in the EPO in the event of a closure in the WCPO. The 
proportion of the U.S. fishery's annual bigeye tuna catches that were 
captured in the EPO from 2005 through 2008 ranged from 2 percent to 22 
percent, and averaged 11 percent. In 2005-2007, that proportion ranged 
from 2 percent to 11 percent, and may have been constrained by the 
IATTC-adoped bigeye tuna catch limits established by NMFS (no limit was 
in place for 2008). Prior to 2009, most of the U.S. annual bigeye tuna 
catch by longline vessels in the EPO typically was made in the second 
and third quarters of the year; in 2005-2008 the percentages caught in 
the first, second, third, and fourth quarters were 14, 33, 50, and 3 
percent, respectively. These data demonstrate two historical patterns--
that relatively little of the bigeye tuna catch in the longline fishery 
was typically taken in the EPO (11 percent in 2005-2008, on average), 
and that most EPO bigeye tuna catches were made in the second and third 
quarters, with relatively few catches in the fourth quarter when the 
proposed catch limit would most likely be reached. These two patterns 
suggest that there could be substantial costs for at least some 
affected entities that shift to deep-set fishing in the EPO in the 
event of a closure in the WCPO. On the other hand, fishing patterns 
since 2008 suggest that a substantial shift in deep-set fishing effort 
to the EPO could occur. In 2009, 2010, 2011, 2012, 2013, 2014, 2015, 
and 2016 the proportions of the fishery's annual bigeye tuna catches 
that were captured in the EPO were about 16, 27, 23, 19, 36, 35, 47, 
and 36 percent, respectively, and most bigeye tuna catches in the EPO 
were made in the latter half of the calendar years.
    The NMFS study of the 2010 closure (Richmond et al. 2015) found 
that some businesses--particularly those with smaller vessels--were 
less inclined than others to fish in the EPO during the closure because 
of the relatively long distances that would need to be travelled in the 
relatively rough winter ocean conditions. The study identified a number 
of factors that likely made fishing in the EPO less lucrative than 
fishing in the WCPO during that part of the year, including fuel costs 
and the need to limit trip length in order to maintain fish quality and 
because of limited fuel storage capacity.
    In addition to affecting the volume of landings of bigeye tuna and 
other species, the proposed catch limits could affect fish prices, 
particularly during a fishery closure. Both increases and decreases 
appear possible. After a limit is reached and landings from the WCPO 
are prohibited, ex-vessel prices of bigeye tuna (e.g., that are caught 
in the EPO or by vessels in the longline fisheries of the three U.S. 
Participating Territories), as well as of other species landed by the 
fleet, could increase as a result of the constricted supply. This would 
mitigate economic losses for vessels that are able to continue fishing 
and landing bigeye tuna during the closure. For example, the NMFS study 
of the 2010 closure (Richmond et al. 2015) found that ex-vessel prices 
during the closure in December were 50 percent greater than the average 
during the previous five Decembers. (It is emphasized that because it 
was an observational study, neither this nor other observations of what 
occurred during the closure can be affirmatively linked as effects of 
the fishery closure.)
    Conversely, a WCPO bigeye tuna fishery closure could cause a 
decrease in ex-vessel prices of bigeye tuna and other products landed 
by affected entities if the interruption in the local supply prompts 
the Hawaii market to shift to alternative (e.g., imported) sources of 
bigeye tuna. Such a shift could be temporary--that is, limited to 2018-
2020--or it could lead to a more permanent change in the market (e.g., 
as a result of wholesale and retail buyers wanting to mitigate the 
uncertainty in the continuity of supply from the Hawaii longline 
fisheries). In the latter case, if locally caught bigeye tuna fetches 
lower prices because of stiffer competition with imported bigeye tuna, 
then ex-vessel prices of local product could be depressed indefinitely. 
The NMFS study of the 2010 closure (Richmond et al. 2015) found that a 
common concern in the Hawaii fishing community prior to the closure in 
November 2010 was retailers having to rely more heavily on imported 
tuna, causing imports to gain a greater market share in local markets. 
The study found this not to have been borne out, at least not in 2010, 
when the evidence gathered in the study suggested that few buyers 
adapted to the closure by increasing their reliance on imports, and no 
reports or indications were found of a dramatic increase in the use of 
imported bigeye tuna during the closure. The study concluded, however, 
that the 2010 closure caused buyers to give increased consideration to 
imports as part of their business model, and it was predicted that tuna 
imports could increase during any future closure. To the extent that 
ex-vessel prices would be reduced by this action, revenues earned by 
affected entities would be affected accordingly, and these impacts 
could occur both before and after the limit is reached, and as 
described above, possibly after 2020.
    The potential economic effects identified above would vary among 
individual business entities, but it is not

[[Page 21756]]

possible to predict the range of variation. Furthermore, the impacts on 
a particular entity would depend on both that entity's response to the 
proposed rule and the behavior of other vessels in the fleet, both 
before and after the catch limit is reached. For example, the greater 
the number of vessels that take advantage--before the limit is 
reached--of the first alternative opportunity (1), fishing as part of 
one of the Participating Territory's fisheries, the lower the 
likelihood that the limit would be reached.
    The fleet's behavior in 2011 and 2012 is illustrative. In both 
those years, most vessels in the Hawaii fleet were included in a 
section 113(a) arrangement with the government of American Samoa, and 
as a consequence, the U.S. longline catch limit was not reached in 
either year. Thus, none of the vessels in the fleet, including those 
not included in the section 113(a) arrangements, were prohibited from 
fishing for bigeye tuna in the Convention Area at any time during those 
two years. The fleet's experience in 2010 (before opportunities under 
section 113(a) or Amendment 7 to the Pelagics FEP were available) 
provides another example of how economic impacts could be distributed 
among different entities. In 2010 the limit was reached and the WCPO 
bigeye tuna fishery was closed on November 22. As described above, dual 
permit vessels were able to continue fishing outside the U.S. EEZ 
around the Hawaiian Archipelago and benefit from the relatively high 
ex-vessel prices that bigeye tuna fetched during the closure.
    In summary, based on potential reductions in ex-vessel revenues, 
NMFS has estimated that the upper bound of potential economic impacts 
of the proposed rule on affected longline fishing entities could be 
roughly $160,000 per vessel per year, on average. The actual impacts to 
most entities are likely to be substantially less than those upper 
bounds, and for some entities the impacts could be neutral or positive 
(e.g., if one or more Amendment 7 agreements are in place in 2018-2020 
and the terms of the agreements are such that the U.S. longline fleet 
is effectively unconstrained by the catch limits).
2. FAD Restrictions
    This element of the proposed rule would not establish any new 
reporting or recordkeeping requirements. The new requirement would be 
for affected vessel owners and operators to comply with the FAD 
restrictions described earlier in the SUPPLEMENTARY INFORMATION section 
of the preamble, including FAD prohibition periods throughout the 
Convention Area from July 1 through September 30 in each of the years 
2018-2020 and FAD prohibition periods just on the high seas in the 
Convention Area from November 1 through December 31 in each of the same 
years. There would also be a limit of 350 active FADs that may be 
deployed per vessel at any given time. Anecdotal information from the 
U.S. purse seine fishing industry indicates that U.S. purse seine 
vessels have not ever deployed more than 350 active FADs at any given 
time, so NMFS does not expect that the limit would be constraining or 
otherwise affect the behavior of purse seine operations, and it is not 
considered further in this IRFA.
    Fulfillment of the element's requirements is not expected to 
require any professional skills that the vessel owners and operators do 
not already possess. The costs of complying with the requirements are 
described below to the extent possible.
    The proposed FAD restrictions would substantially constrain the 
manner in which purse seine fishing could be conducted in the specified 
areas and periods in the Convention Area; in those areas and during 
those periods, vessels would be able to set only on free, or 
``unassociated,'' schools.
    With respect to the three-month FAD closure throughout the 
Convention Area: Assuming that sets would be evenly distributed through 
the year, the number of annual FAD sets would be expected to be about 
three-fourths the number that would occur without a seasonal FAD 
closure. For example, during 2014-2016, the proportion of all sets that 
were made on FADs when FAD setting was allowed was 50 percent. As an 
indicative example, if the fleet makes 8,000 sets in a given year 
(somewhat more than the 2014-2016 average of 7,420 sets per year) and 
50 percent of those are FAD sets, it would make 4,000 FAD sets. If 
there is a three-month closure and 50 percent of the sets outside the 
closure are FAD sets, and sets are evenly distributed throughout each 
year, the annual number of FAD sets would be 3,000. This can be 
compared to the estimated 2,494 annual FAD sets that were made in 2014-
2016, on average, when there were three-month FAD closures.
    With respect to the two-month high seas FAD closure: The effects of 
this element are difficult to predict. If the high seas are closed to 
all purse seine fishing during November-December as a result of the 
fishing effort limit being reached, the high seas FAD closure during 
those two months would have no additional effect whatsoever. If the 
high seas are not closed to fishing, the prohibition on FAD setting 
would make the high seas less favorable for fishing than they otherwise 
would be, because only unassociated sets would be allowed there. It is 
not possible to characterize how influential that factor would be, 
however. Thus, it is not possible to predict the effects in terms of 
the spatial distribution of fishing effort or the proportion of fishing 
effort that is made on FADs.
    With respect to both the three-month FAD closure and two-month high 
seas FAD closure: As for the limits on fishing effort, vessel operators 
might choose to schedule their routine maintenance periods so as to 
take best advantage of the available opportunities for making FAD sets, 
such as during the FAD closures. However, the limited number of vessel 
maintenance facilities in the region might constrain vessel operators' 
ability to do this.
    It is emphasized that the indicative example given above is based 
on the assumption that the FAD set ratio would be 50 percent during 
periods when FAD sets are allowed, as well as that sets are distributed 
evenly throughout the year. These assumptions are weak from several 
perspectives, so the results should be interpreted with caution. First, 
as described above, FAD set ratios have varied widely from year to 
year, indicating that the conditions that dictate ``optimal'' FAD set 
ratios for the fleet vary widely from year to year, and cannot be 
predicted with any certainty. Second, the optimal FAD set ratio during 
open periods might depend on how long and when those periods occur. For 
example, FAD fishing might be particularly attractive soon after a 
closed period during which FADs aggregated fish but were not fished on. 
These factors are not explicitly accounted for in this analysis, but 
the 50 percent FAD ratio used in this analysis was taken from 2014-
2016, when there was a three-month FAD closure, so it is probably a 
better indicator for the action alternatives than FAD set ratios for 
years prior to 2009, when no seasonal FAD closures were in place. With 
respect to the distribution of sets through the year, the existence of 
collective limits on fishing effort might create an incentive for 
individual vessels to fish harder earlier in the year than they 
otherwise would, resulting in a ``race to fish.'' Limitations on 
fishing effort throughout the Convention Area could cause vessels to 
fish (irrespective of set type or the timing of FAD closures) harder 
earlier in a given year than they would without the limits. However, 
any such effect is not expected to be great, because most vessels in 
the fleet tend to fish virtually full time, leaving little

[[Page 21757]]

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

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

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

[[Page 21758]]

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

[[Page 21759]]

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

Disproportionate Impacts

    As described above, the type of the impacts would vary greatly 
among fishing gear types (i.e., longline versus albacore troll versus 
purse seine), and the magnitude of the impacts also could vary greatly 
by fishing gear type (but they are difficult to quantify and compare). 
Nevertheless, all the affected entities in the longline and albacore 
troll fishing sectors are small entities, so there would be no 
disproportionate impacts between small and large entities within those 
sectors. In the purse seine fishing sector, slightly more than half the 
affected entities are small entities. The direct effect of the proposed 
rule would be to constrain fishing effort by purse seine fishing 
vessels, with consequent constraining effects on both revenues (because 
catches would be less) and operating costs (because less fishing would 
be undertaken). Although some purse seine fishing entities are larger 
than others, NMFS is not aware of any differences between the small 
entities and the large entities (as defined by the RFA) in terms of 
their capital costs, operating costs, or other aspects of their 
businesses. Accordingly, there is no information to suggest that the 
direct adverse economic impacts on small purse seine entities would be 
disproportionately greater than those on large purse seine entities.

Duplicating, Overlapping, and Conflicting Federal Regulations

    NMFS has not identified any Federal regulations that duplicate, 
overlap with, or conflict with the proposed regulations.

Alternatives to the Proposed Rule

    NMFS has sought to identify alternatives that would minimize the 
proposed rule's economic impacts on small entities (``significant 
alternatives''). Taking no action could result in lesser adverse 
economic impacts than the proposed action for affected entities (but as 
described below, for some affected longline entities, the proposed rule 
could be more economically beneficial than no-action), but NMFS does 
not prefer the no-action alternative, because it would be inconsistent 
with the United States' obligations under the Convention. Alternatives 
identified for each of the four elements of the proposed rule are 
discussed below.
1. Longline Bigeye Tuna Catch Limits
    NMFS has not identified any significant alternatives for this 
element of the proposed rule, other than the no-action alternative.
2. FAD Restrictions
    NMFS considered in detail one alternative to this element of the 
proposed rule, but only with respect to the timing of the two-month FAD 
closure for the high seas. CMM 2017-01 allows members to choose either 
November-December, as in this proposed rule, or April-May. NMFS has 
compared the expected direct economic impacts of the two alternatives 
on purse seine fishing businesses in the regulatory impact review for 
the proposed rule. The analysis finds that a November-December closure 
is more likely to have a lesser direct economic impact on those 
businesses than an April-May closure, primarily because the later 
closure period is more likely to run concurrently with a closure of the 
high seas in the Convention Area to purse seine fishing (if the fishing 
effort limit in this proposed rule is reached), in which case the FAD 
closure would bring no additional economic impacts.
3. Purse Seine Fishing Effort Limits
    In the past, NMFS implemented the U.S. purse seine fishing effort 
limits on the high seas and in the U.S. EEZ adopted by the Commission 
as a single combined limit in the ELAPS. For this

[[Page 21760]]

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

Paperwork Reduction Act

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

List of Subjects in 50 CFR Part 300

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

    Dated: May 4, 2018.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 300--INTERNATIONAL FISHERIES REGULATIONS

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

0
1. The authority citation for 50 CFR part 300, subpart O, continues to 
read as follows:

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

0
2. In Sec.  300.211, add definition ``Active FAD'' to read as follows:


Sec.  300.211   Definitions.

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


Sec.  300.217   Vessel identification.

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


Sec.  300.218   Reporting and recordkeeping requirements.

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


Sec.  300.222   Prohibitions.

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


Sec.  300.223   Purse seine fishing restrictions.

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

[[Page 21761]]

in the area where the limit is expected to be reached will be closed 
starting on that specific future date and will remain closed until the 
end of the calendar year.
    (4) Once a fishery closure is announced pursuant to paragraph 
(a)(3) of this section, fishing vessels of the United States equipped 
with purse seine gear may not be used to fish in the closed area during 
the period specified in the Federal Register notice, except that such 
vessels are not prohibited from bunkering during a fishery closure.
* * * * *
    (b) * * *
    (1) During the periods and in the areas specified in paragraph 
(b)(2) of this section, owners, operators, and crew of fishing vessels 
of the United States equipped with purse seine gear shall not do any of 
the activities described below in the Convention Area in the area 
between 20[deg] N latitude and 20[deg] S latitude:
    (i) Set a purse seine around a FAD or within one nautical mile of a 
FAD.
    (ii) Set a purse seine in a manner intended to capture fish that 
have aggregated in association with a FAD or a vessel, such as by 
setting the purse seine in an area from which a FAD or a vessel has 
been moved or removed within the previous eight hours, or setting the 
purse seine in an area in which a FAD has been inspected or handled 
within the previous eight hours, or setting the purse seine in an area 
into which fish were drawn by a vessel from the vicinity of a FAD or a 
vessel.
    (iii) Deploy a FAD into the water.
    (iv) Repair, clean, maintain, or otherwise service a FAD, including 
any electronic equipment used in association with a FAD, in the water 
or on a vessel while at sea, except that:
    (A) A FAD may be inspected and handled as needed to identify the 
FAD, identify and release incidentally captured animals, un-foul 
fishing gear, or prevent damage to property or risk to human safety; 
and
    (B) A FAD may be removed from the water and if removed may be 
repaired, cleaned, maintained, or otherwise serviced, provided that it 
is not returned to the water.
    (v) From a purse seine vessel or any associated skiffs, other 
watercraft or equipment, do any of the following, except in emergencies 
as needed to prevent human injury or the loss of human life, the loss 
of the purse seine vessel, skiffs, watercraft or aircraft, or 
environmental damage:
    (A) Submerge lights under water;
    (B) Suspend or hang lights over the side of the purse seine vessel, 
skiff, watercraft or equipment, or;
    (C) Direct or use lights in a manner other than as needed to 
illuminate the deck of the purse seine vessel or associated skiffs, 
watercraft or equipment, to comply with navigational requirements, and 
to ensure the health and safety of the crew.
    (2) The requirements of paragraph (b)(1) of this section shall 
apply:
    (i) From July 1 through September 30, in each calendar year;
    (ii) In any area of high seas, from November 1 through December 31, 
in each calendar year.
    (3) Activating FADs for purse seine vessels. (i) A vessel owner, 
operator, or crew of a fishing vessel of the United States equipped 
with purse seine gear shall turn on the tracking equipment of an active 
FAD while the FAD is onboard the vessel and before it is deployed in 
the water.
    (ii) Restrictions on Active FADs for purse seine vessels. U.S. 
vessel owners and operators of a fishing vessel of the United States 
equipped with purse seine gear shall not have more than 350 drifting 
active FADs per vessel in the Convention Area at any one time.
* * * * *
0
7. In Sec.  300.224, revise paragraph (a)(1) and remove paragraph 
(a)(2) to read as follows:


Sec.  300.224   Longline fishing restrictions.

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


Sec.  300.225   Eastern High Seas Special Management Area.

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

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



                                                  21748                    Federal Register / Vol. 83, No. 91 / Thursday, May 10, 2018 / Proposed Rules

                                                  DEPARTMENT OF COMMERCE                                  ADDRESSES:    You may submit comments                 Background on the Convention
                                                                                                          on the proposed rule and the regulatory                  The Convention focused on the
                                                  National Oceanic and Atmospheric                        impact review (RIR) prepared for the                  conservation and management of
                                                  Administration                                          proposed rule, identified by NOAA–                    fisheries for highly migratory species
                                                                                                          NMFS–2018–0050, by either of the                      (HMS). The objective of the Convention
                                                  50 CFR Part 300                                         following methods:                                    is to ensure, through effective
                                                  [Docket No. 180209155–8399–01]                             • Electronic submission: Submit all                management, the long-term
                                                                                                          electronic public comments via the                    conservation and sustainable use of
                                                  RIN 0648–BH77                                           Federal e-Rulemaking Portal.                          HMS in the Western and Central Pacific
                                                  International Fisheries; Western and                       1. Go to www.regulations.gov/                      Ocean (WCPO). To accomplish this
                                                  Central Pacific Fisheries for Highly                    #!docketDetail;D=NOAA-NMFS-2018-                      objective, the Convention established
                                                  Migratory Species; Fishing Limits in                    0050,                                                 the Commission, which includes
                                                  Purse Seine and Longline Fisheries,                        2. Click the ‘‘Comment Now!’’ icon,                Members, Cooperating Non-members,
                                                  Restrictions on the Use of Fish                         complete the required fields, and                     and Participating Territories
                                                  Aggregating Devices in Purse Seine                         3. Enter or attach your comments.                  (collectively referred to here as
                                                  Fisheries, and Transshipment                               —OR—                                               ‘‘members’’). The United States of
                                                  Prohibitions                                                                                                  America is a Member. American Samoa,
                                                                                                             • Mail: Submit written comments to
                                                                                                                                                                Guam, and the Commonwealth of the
                                                  AGENCY:  National Marine Fisheries                      Michael D. Tosatto, Regional
                                                                                                                                                                Northern Mariana Islands (CNMI) are
                                                  Service (NMFS), National Oceanic and                    Administrator, NMFS, Pacific Islands
                                                                                                                                                                Participating Territories.
                                                  Atmospheric Administration (NOAA),                      Regional Office (PIRO), 1845 Wasp                        As a Contracting Party to the
                                                  Commerce.                                               Blvd., Building 176, Honolulu, HI                     Convention and a Member of the
                                                  ACTION: Proposed rule; request for
                                                                                                          96818.                                                Commission, the United States
                                                  comments.                                                  Instructions: Comments sent by any                 implements, as appropriate,
                                                                                                          other method, to any other address or                 conservation and management measures
                                                  SUMMARY:    NMFS seeks comments on                      individual, or received after the end of              and other decisions adopted by the
                                                  this proposed rule issued under                         the comment period, might not be                      Commission. The WCPFC
                                                  authority of the Western and Central                    considered by NMFS. All comments                      Implementation Act (16 U.S.C. 6901 et
                                                  Pacific Fisheries Convention                            received are a part of the public record              seq.), authorizes the Secretary of
                                                  Implementation Act (WCPFC                               and will generally be posted for public               Commerce, in consultation with the
                                                  Implementation Act). The proposed rule                  viewing on www.regulations.gov                        Secretary of State and the Secretary of
                                                  would implement recent decisions of                     without change. All personal identifying              the Department in which the United
                                                  the Commission for the Conservation                     information (e.g., name and address),                 States Coast Guard is operating
                                                  and Management of Highly Migratory                      confidential business information, or                 (currently the Department of Homeland
                                                  Fish Stocks in the Western and Central                  otherwise sensitive information                       Security), to promulgate such
                                                  Pacific Ocean (WCPFC or Commission).                    submitted voluntarily by the sender will              regulations as may be necessary to carry
                                                  These decisions include the following                   be publicly accessible. NMFS will                     out the obligations of the United States
                                                  management measures: limits on fishing                  accept anonymous comments (enter ‘‘N/                 under the Convention, including the
                                                  effort by U.S. purse seine vessels in the               A’’ in the required fields if you wish to             decisions of the Commission. The
                                                  U.S. exclusive economic zone and on                     remain anonymous).                                    WCPFC Implementation Act further
                                                  the high seas between the latitudes of                     An initial regulatory flexibility                  provides that the Secretary of Commerce
                                                  20° N and 20° S in the area of                          analysis (IRFA) prepared under                        shall ensure consistency, to the extent
                                                  application of the Convention on the                    authority of the Regulatory Flexibility               practicable, of fishery management
                                                  Conservation and Management of                          Act is included in the Classification                 programs administered under the
                                                  Highly Migratory Fish Stocks in the                     section of the SUPPLEMENTARY                          WCPFC Implementation Act and the
                                                  Western and Central Pacific Ocean                       INFORMATION section of this document.                 Magnuson-Stevens Fishery
                                                  (Convention); restrictions regarding the                   Copies of the RIR, the 2015                        Conservation and Management Act
                                                  use of fish aggregating devices (FADs)                  programmatic environmental                            (MSA; 16 U.S.C. 1801 et seq.), as well
                                                  for U.S. purse seine fishing vessels;                   assessment, and 2012 environmental                    as other specific laws (see 16 U.S.C.
                                                  limits on the catches of bigeye tuna by                 assessment prepared for National                      6905(b)). The Secretary of Commerce
                                                  U.S. longline vessels in the Convention                 Environmental Policy Act (NEPA)                       has delegated the authority to
                                                  area; prohibitions on U.S. vessels used                 purposes are available at                             promulgate regulations under the
                                                  to fish for highly migratory species from               www.regulations.gov or may be obtained                WCPFC Implementation Act to NMFS.
                                                  engaging in transshipment in a                          from Michael D. Tosatto, Regional                     A map showing the boundaries of the
                                                  particular area of the high seas (the                   Administrator, NMFS PIRO (see address                 area of application of the Convention
                                                  Eastern High Seas Special Management                    above).                                               (Convention Area), which comprises the
                                                  Area or EHSSMA); and removal of                                                                               majority of the WCPO, can be found on
                                                                                                             Written comments regarding the
                                                  existing reporting requirements for                                                                           the WCPFC website at: www.wcpfc.int/
                                                                                                          burden-hour estimates or other aspects
                                                  vessels transiting the EHSSMA. The rule                                                                       doc/convention-area-map.
                                                                                                          of the collection-of-information
                                                  also would make corrections to outdated
                                                                                                          requirements contained in this proposed
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                                                  cross references in existing regulatory                                                                       Background on the Conservation and
                                                                                                          rule may be submitted to PIRO at the                  Management Measures
                                                  text. This action is necessary to satisfy
                                                                                                          address listed above and by email to
                                                  the obligations of the United States                                                                            This proposed rule would implement
                                                                                                          OIRA_Submission@omb.eop.gov or fax
                                                  under the Convention, to which it is a                                                                        specific provisions of two recent
                                                                                                          to (202) 395–5806.
                                                  Contracting Party.                                                                                            WCPFC decisions. The first decision,
                                                  DATES: Comments on the proposed rule                                                   Rini
                                                                                                          FOR FURTHER INFORMATION CONTACT:                      Conservation and Management Measure
                                                  must be submitted in writing by May 25,                 Ghosh, NMFS PIRO, 808–725–5033.                       (CMM) 2017–01, ‘‘Conservation and
                                                  2018.                                                   SUPPLEMENTARY INFORMATION:                            Management Measure for Bigeye,


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                                                                           Federal Register / Vol. 83, No. 91 / Thursday, May 10, 2018 / Proposed Rules                                           21749

                                                  Yellowfin, and Skipjack Tuna in the                     vessels to be prohibited from fishing on              skipjack tuna, for observer coverage on
                                                  Western and Central Pacific Ocean,’’                    FADs on the high seas and in the                      purse seine vessels, and for vessel
                                                  was adopted by the Commission at its                    exclusive economic zones (EEZs) in the                monitoring system requirements for
                                                  fourteenth regular annual session, in                   Convention Area between the latitudes                 purse seine vessels during the FAD
                                                  December 2017, and went into effect                     of 20° N and 20° S from July 1 through                closure periods.
                                                  February 2018. The provisions of CMM                    September 30 of 2018. The second FAD
                                                  2017–01 are described in more detail                    restriction requires WCPFC members to                 Proposed Action
                                                  below. The second decision, CMM                         establish an additional consecutive two-                 The elements of the proposed rule are
                                                  2016–02, ‘‘Conservation and                             month FAD prohibition period on the                   detailed below. The administrative
                                                  Management Measures for Eastern High                    high seas in the Convention Area in                   changes that would be made to correct
                                                  Seas Pocket Special Management Area,’’                  2018, in either April and May or                      outdated references in existing
                                                  revises a previous measure regarding the                November and December. CMM 2017–                      regulatory text are described at the end.
                                                  EHSSMA so that vessels are no longer                    01 also includes provisions encouraging                  As described above, some of the
                                                  required to provide reports to the                      WCPFC members to use non-entangling                   provisions in CMM 2017–01 apply only
                                                  Commission when entering and exiting                    design and materials as well as                       to calendar year 2018, while others are
                                                  the EHSSMA and also prohibits all                       biodegradable materials in the                        applicable until February 10, 2021.
                                                  transshipment activities in the area                    construction of FADs. Finally, CMM                    Because the Commission likely will
                                                  starting on January 1, 2019.                            2017–01 includes a provision requiring                continue to implement similar
                                                     CMM 2017–01 is the latest in a series                that each purse seine vessel have no                  management measures regarding FADs,
                                                  of CMMs devoted to the conservation                     more than 350 drifting FADs with                      purse seine effort limits, and longline
                                                  and management of tropical tuna stocks,                 activated instrumented buoys deployed                 bigeye tuna catch limits beyond 2018,
                                                  particularly stocks of bigeye tuna                      at sea in the Convention Area at any one              and to avoid a lapse in the management
                                                  (Thunnus obesus), yellowfin tuna                        time through February 10, 2021. Under                 of the fishery, NMFS is proposing to
                                                  (Thunnus albacares), and skipjack tuna                  the CMM, an instrumented buoy is                      implement all of the elements of CMM
                                                  (Katsuwonus pelamis). The stated                        defined as a buoy with a clearly marked               2017–01 in this proposed rule under the
                                                  purpose of CMM 2017–01 is to provide                    reference number allowing its                         authority of the WCPFC Implementation
                                                  for a robust transitional management                    identification and equipped with a                    Act, 16 U.S.C. 6904(a), so that they will
                                                  regime that ensures the sustainability of               satellite tracking system to monitor its              remain effective until they are replaced
                                                  bigeye tuna, yellowfin tuna, and                        position. The CMM states that the buoy                or amended. Because the Commission
                                                  skipjack tuna in the WCPO pending the                   shall be activated exclusively on board
                                                                                                                                                                developed CMM 2017–01 as generally a
                                                  Commission’s establishment of harvest                   the vessel.
                                                                                                                                                                three-year conservation and
                                                  strategies.                                                Under CMM 2017–01, WCPFC
                                                     In order to achieve that stated                      members must also limit their purse                   management measure (2018–2020), the
                                                  purpose, CMM 2017–01 includes                           seine vessels to specific fishing effort              supporting analyses for this rule covers
                                                  provisions for longline and purse seine                 limits. The limits on U.S. purse seine                a three-year time period, understanding
                                                  vessels that would be implemented in                    fishing effort detailed in CMM 2017–01                that these analyses would need to be
                                                  this proposed rule. For longline vessels,               are similar to limits in previous WCPFC               supplemented should the elements of
                                                  the CMM includes specific bigeye tuna                   decisions. The limits are 558 fishing                 the rule remain effective for more than
                                                  catch limits for several WCPFC                          days in the U.S. EEZ and 1,270 fishing                three years.
                                                  members, including the United States.                   days on the high seas in the Convention               Longline Bigeye Tuna Catch Limits
                                                  The CMM provides for a limit of 3,554                   Area between the latitudes of 20° N and
                                                  metric tons (mt) of bigeye tuna that may                20° S for each of the calendar years                     The Commission-adopted longline
                                                  be caught by U.S. longline vessels                      2018–2020. However, CMM 2017–01                       bigeye tuna catch limit for the United
                                                  fishing in the Convention Area for                      also includes a new provision for 2018                States for 2018 is 3,554 mt. As stated
                                                  calendar year 2018, which is the same                   only that allows the United States to                 above, CMM 2017–01 reiterates the
                                                  as the U.S. limit in 2016, as specified in              transfer 100 fishing days from its limit              provision of earlier CMMs that states
                                                  earlier WCPFC decisions. As in previous                 in the U.S. EEZ to its limit on the high              that any catch overage in a given year
                                                  WCPFC CMMs on tropical tunas, CMM                       seas, and if the U.S. EEZ limit is reached            shall be deducted from the catch limit
                                                  2017–01 also requires any overage of the                by October 1, 2018, the U.S. EEZ limit                for the following year. The longline
                                                  catch limit to be deducted from the                     will be increased by an additional 100                bigeye tuna catch limit for the United
                                                  following year’s limit.                                 fishing days, with the expectation that               States in 2017 was 3,138 mt (see Interim
                                                     Also as in previous CMMs, no limits                  the catch taken by U.S. flagged vessels               Rule; 82 FR 36341, published August 4,
                                                  apply to the longline fisheries of the                  and landed in American Samoa for the                  2017). Based on preliminary estimates,
                                                  U.S. Participating Territories of                       American Samoa canneries is no less                   NMFS believes that the 2017 limit might
                                                  American Samoa, Guam, and CNMI. In                      than the volume landed in 2017 plus an                have been exceeded, but the amount of
                                                  addition, CMM 2017–01 includes a new                    additional 3,500 short tonnes. This new               the overage, if it occurred, is not yet
                                                  provision for U.S. longline vessels,                    provision was intended to alleviate the               known. Thus, NMFS is proposing a
                                                  stating that catch and effort of U.S.-                  economic hardship faced by American                   calendar year catch limit of 3,554 mt
                                                  flagged vessels operating under                         Samoa and its canneries when U.S.                     that would remain effective until
                                                  agreements with the U.S. Participating                  purse seine fishing limits are reached,               replaced. However, for 2018, it is
                                                  Territories shall be attributed to the U.S.             resulting in fishery closures.                        possible that this limit would be
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                                                  Participating Territories.                                 CMM 2017–01 also includes                          adjusted downward to account for any
                                                     For purse seine vessels, CMM 2017–                   provisions for purse seine vessels that               overage in 2017; the limit would
                                                  01 includes several restrictions on the                 were in previous WCPFC decisions and                  similarly be adjusted downward in
                                                  use of FADs and provides for specific                   that have been implemented by NMFS                    future years, should any overages occur.
                                                  limits on fishing effort.                               in regulations that continue in force.                NMFS will determine the exact amount
                                                     The first FAD restriction is similar to              These provisions include requirements                 of the overage prior to publication of the
                                                  the one included in previous WCPFC                      for purse seine vessels to retain all catch           final rule and include the exact amount
                                                  decisions and requires purse seine                      of bigeye tuna, yellowfin tuna, and                   of the 2018 limit in the final rule.


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                                                  21750                    Federal Register / Vol. 83, No. 91 / Thursday, May 10, 2018 / Proposed Rules

                                                     The calendar year longline bigeye                    that the current trip type is shallow-                available for immediate use, and any
                                                  tuna catch limit will apply only to U.S.-               setting is not subject to this 14-day                 power-operated mainline hauler on
                                                  flagged longline vessels operating as                   landing restriction, so these vessels will            deck must be covered in such a manner
                                                  part of the U.S. longline fisheries. The                be able to land bigeye tuna more than                 that it is not readily available for use.
                                                  limit will not apply to U.S. longline                   14 days after the restrictions become                 These two prohibitions do not apply to
                                                  vessels operating as part of the longline               effective.                                            the following vessels: (1) Vessels on
                                                  fisheries of American Samoa, CNMI, or                      Second, bigeye tuna captured by                    declared shallow-setting trips pursuant
                                                  Guam. Existing regulations at 50 CFR                    longline gear can be retained on board,               to 50 CFR 665.803(a); and (2) vessels
                                                  300.224(b), (c), and (d) detail the                     transshipped, and/or landed if they are               operating for the purposes of this rule as
                                                  manner in which longline-caught bigeye                  caught by a fishing vessel registered for             part of the longline fisheries of
                                                  tuna is attributed among the fisheries of               use under a valid American Samoa                      American Samoa, Guam, or the CNMI.
                                                  the United States and the U.S.                          Longline Limited Access Permit, or if                 This second group includes vessels
                                                  Participating Territories.                              they are landed in American Samoa,                    registered for use under valid American
                                                     Consistent with the basis for the                    Guam, or CNMI. However, the bigeye                    Samoa Longline Limited Access Permits
                                                  limits prescribed in CMM 2017–01 and                    tuna must not be caught in the portion                and vessels landing their bigeye tuna
                                                  with regulations issued by NMFS to                      of the U.S. EEZ surrounding the                       catch in one of the three U.S.
                                                  implement bigeye tuna catch limits in                   Hawaiian Archipelago, and must be                     Participating Territories, so long as
                                                  U.S. longline fisheries as described                    landed by a U.S. fishing vessel operated              these vessels conduct fishing activities
                                                  below, the catch limit is measured in                   in compliance with a valid permit                     in accordance with the conditions
                                                  terms of retained catches—that is,                      issued under 50 CFR 660.707 or                        described above, and vessels included
                                                  bigeye tuna that are caught by longline                 665.801.                                              in a specified fishing agreement under
                                                  gear and retained on board the vessel.                     Third, bigeye tuna captured by                     50 CFR 665.819(d), in accordance with
                                                                                                          longline gear can be retained on board,               50 CFR 300.224(f)(iv).
                                                  1. Announcement of the Limit Being                      transshipped, and/or landed if they are
                                                  Reached                                                 caught by a vessel that is included in a              FAD Restrictions
                                                     As set forth under the existing                      specified fishing agreement under 50                     In accordance with CMM 2017–01,
                                                  regulations at 50 CFR 300.224(e), if                    CFR 665.819(d), in accordance with 50                 NMFS proposes to establish a FAD
                                                  NMFS determines that the limit is                       CFR 300.224(f)(iv).                                   prohibition period from July through
                                                  expected to be reached in a calendar                       b. Transshipment of bigeye tuna to                 September in each calendar year in the
                                                  year, NMFS will publish a notice in the                 certain vessels: Starting on the effective            Convention Area between the latitudes
                                                  Federal Register to announce specific                   date of the restrictions and extending                of 20° N and 20° S (inclusive of the
                                                  fishing restrictions that will be effective             through December 31 of the calendar                   EEZs and high seas in the Convention
                                                  from the date the limit is expected to be               year, it will be prohibited to transship              Area). Regarding the additional
                                                  reached until the end of the calendar                   bigeye tuna caught in the Convention                  consecutive two-month FAD prohibition
                                                  year. NMFS will publish the notice of                   Area by longline gear to any vessel other             period on the high seas in the
                                                  the restrictions at least 7 calendar days               than a U.S. fishing vessel operated in                Convention Area, after considering the
                                                  before the effective date to provide                    compliance with a valid permit issued                 objectives of CMM 2017–01, the
                                                  vessel owners and operators with                        under 50 CFR 660.707 or 665.801.                      expected economic impacts on U.S.
                                                  advance notice. Periodic forecasts of the                  c. Fishing inside and outside the                  fishing operations and the nation as a
                                                  date the limit is expected to be reached                Convention Area: To help ensure                       whole, and expected environmental and
                                                  will be made available to the public,                   compliance with the restrictions related              other effects, NMFS expects that a high
                                                  such as by posting on a website, to help                to bigeye tuna caught by longline gear                seas FAD prohibition period in
                                                  vessel owners and operators plan for the                in the Convention Area, two additional,               November and December may be
                                                  possibility of the limit being reached.                 related prohibitions would be in effect               somewhat more cost-effective than a
                                                                                                          starting on the effective date of the                 FAD prohibition period in April and
                                                  2. Restrictions After the Limit Is                      restrictions and extending through                    May. For this reason, NMFS is
                                                  Reached                                                 December 31 of the calendar year. First,              proposing to implement the high seas
                                                     As set forth under the existing                      vessels are prohibited from fishing with              FAD prohibition period in November
                                                  regulations at 50 CFR 300.224(f), if the                longline gear both inside and outside                 and December for each calendar year.
                                                  limit is reached, the restrictions that                 the Convention Area during the same                   We specifically seek public comment on
                                                  will be in effect will include the                      fishing trip, with the exception of a                 which option is more appropriate. A
                                                  following:                                              fishing trip that is in progress at the time          comparison of the two options’ expected
                                                     a. Retain on board, transship, or land               the announced restrictions go into                    direct economic impacts on affected
                                                  bigeye tuna: Starting on the effective                  effect. In that exceptional case, the                 fishing businesses is provided in the
                                                  date of the restrictions and extending                  vessel still must land any bigeye tuna                RIR.
                                                  through December 31 of the given                        taken in the Convention Area within 14                   As currently defined in 50 CFR
                                                  calendar year, it will be prohibited to                 days of the effective date of the                     300.211, a FAD is ‘‘any artificial or
                                                  use a U.S. fishing vessel to retain on                  restrictions, as described above. Second,             natural floating object, whether
                                                  board, transship, or land bigeye tuna                   if a vessel is used to fish using longline            anchored or not and whether situated at
                                                  captured in the Convention Area by                      gear outside the Convention Area and                  the water surface or not, that is capable
                                                  longline gear, except as follows:                       enters the Convention Area at any time                of aggregating fish, as well as any object
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                                                     First, any bigeye tuna already on                    during the same fishing trip, the                     used for that purpose that is situated on
                                                  board a fishing vessel upon the effective               longline gear on the fishing vessel must              board a vessel or otherwise out of the
                                                  date of the restrictions can be retained                be stowed in a manner so as not to be                 water. The definition of FAD does not
                                                  on board, transshipped, and/or landed,                  readily available for fishing while the               include a vessel.’’ Under this proposed
                                                  provided that they are landed within 14                 vessel is in the Convention Area,                     rule, the regulatory definition of a FAD
                                                  days after the restrictions become                      specifically, the hooks, branch or                    would not change. Although the
                                                  effective. A vessel that had declared to                dropper lines, and floats used to buoy                definition of a FAD does not include a
                                                  NMFS pursuant to 50 CFR 665.803(a)                      the mainline must be stowed and not                   vessel, the restrictions during the FAD


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                                                                           Federal Register / Vol. 83, No. 91 / Thursday, May 10, 2018 / Proposed Rules                                           21751

                                                  prohibition periods would include                       the prohibitions apply only to owners,                combined so long as the overall effort
                                                  certain activities related to fish that                 operators, and crew of purse seine                    remained equal or less than the sum of
                                                  have aggregated in association with a                   fishing vessels. NMFS has recently                    the two limits. For this proposed rule,
                                                  vessel, or drawn by a vessel, as                        received inquiries as to whether the                  in light of CMM 2017–01’s provision
                                                  described below.                                        prohibitions apply to the owners,                     allowing the United States to transfer
                                                     The prohibitions applicable to these                 operators, and crew of vessels using                  some of its EEZ days to the high seas,
                                                  proposed FAD-related measures are in                    other gear types. This proposed rule                  there is a need to separately account for
                                                  existing regulations at 50 CFR                          would also make a technical change to                 the U.S. high seas limit and the U.S.
                                                  300.223(b)(1)(i)–(v). Specifically, during              50 CFR 300.223(b)(1)(iv)(B) to clarify                EEZ limit. Thus, NMFS will no longer
                                                  the July-September FAD prohibition                      that, during the FAD prohibition                      combine the two limits under a single
                                                  periods in each calendar year, and on                   periods, a FAD may be removed from                    limit. As stated above, CMM 2017–01
                                                  the high seas in November and                           the water to be repaired, cleaned,                    specifies a limit of 1,270 fishing days
                                                  December, owners, operators, and crew                   maintained, or otherwise serviced,                    per year for the high seas and a limit of
                                                  of fishing vessels of the United States                 provided that it is not returned to the               558 fishing days per year for the U.S.
                                                  equipped with purse seine gear shall not                water. This minor change ensures                      EEZ. The proposed rule would establish
                                                  do any of the following activities in the               consistency with the introductory                     a limit of 1,370 fishing days on the high
                                                  Convention Area in the area between                     language in that paragraph.                           seas and a separate limit of 458 fishing
                                                  20° N latitude and 20° S latitude:                         NMFS has recently issued final                     days in the U.S. EEZ. These numbers
                                                     (1) Set a purse seine around a FAD or                regulations to implement provisions of                utilize the provision of CMM 2017–01
                                                  within one nautical mile of a FAD;                      a resolution adopted by the Inter-                    provided to alleviate the economic
                                                     (2) Set a purse seine in a manner                    American Tropical Tuna Commission                     hardship experienced by American
                                                  intended to capture fish that have                      (IATTC) that includes restrictions on the             Samoa during a fishery closure and
                                                  aggregated in association with a FAD or                 number of FADs with activated                         transfer 100 fishing days from the U.S.
                                                  a vessel, such as by setting the purse                  instrumented buoys for each purse seine               EEZ effort limit to the high seas effort
                                                  seine in an area from which a FAD or                    vessel deployed at sea in the IATTC area              limit.
                                                  a vessel has been moved or removed                      at any one time (see Final Rule; 83 FR                   CMM 2017–01 also specifies that the
                                                  within the previous eight hours, setting                15503, published April 11, 2018). In                  United States may add an additional
                                                  the purse seine in an area in which a                   order to provide some consistency to the              100 fishing days to its annual purse
                                                  FAD has been inspected or handled                       regulated community, NMFS is                          seine fishing effort limit in the U.S. EEZ
                                                  within the previous eight hours, or                     proposing similar regulations in this                 if the limit in the U.S. EEZ is reached
                                                  setting the purse seine in an area into                 rule to implement the limit regarding                 by October 1, 2018. As discussed above,
                                                  which fish were drawn by a vessel from                  FADs with activated instrumented                      NMFS is proposing to to implement the
                                                  the vicinity of a FAD or a vessel;                      buoys specified in CMM 2017–01.                       elements of the rule so they are effective
                                                     (3) Deploy a FAD into the water;                        Under the proposed rule, an active                 until they are amended or replaced.
                                                     (4) Repair, clean, maintain, or                      FAD is defined as a FAD that is                       Thus, under the proposed rule, when
                                                  otherwise service a FAD, including any                  equipped with a buoy with a clearly                   NMFS expects that the U.S. EEZ effort
                                                  electronic equipment used in                            marked reference number allowing its                  limit would be reached by October 1,
                                                  association with a FAD, in the water or                 identification and equipped with a                    NMFS would publish a notice in the
                                                  on a vessel while at sea, except that a                 satellite tracking system to monitor its              Federal Register, no later than seven
                                                  FAD may be inspected and handled as                     position, as specified by the definition              days prior to October 1, to increase the
                                                  needed to identify the FAD, identify and                of instrumented buoy in CMM 2017–01.                  U.S. EEZ effort limit by 100 fishing days
                                                  release incidentally captured animals,                     CMM 2017–01 specifies that the buoy                for that calendar year.
                                                  un-foul fishing gear, or prevent damage                 shall be activated exclusively on board                  The meaning of ‘‘fishing day’’ is
                                                  to property or risk to human safety; and                the vessel. In order to implement this                defined at 50 CFR 300.211; that is, any
                                                  a FAD may be removed from the water                     provision, the proposed rule specifies                day in which a fishing vessel of the
                                                  and if removed may be cleaned,                          that the tracking equipment must be                   United States equipped with purse seine
                                                  provided that it is not returned to the                 turned on while the FAD is onboard the                gear searches for fish, deploys a FAD,
                                                  water.                                                  vessel and before it is deployed in the               services a FAD, or sets a purse seine,
                                                     (5) From a purse seine vessel or any                 water. In accordance with CMM 2017–                   with the exception of setting a purse
                                                  associated skiffs, other watercraft or                  01, under the proposed rule, each U.S.                seine solely for the purpose of testing or
                                                  equipment, submerge lights under                        purse seine vessel would have a limit of              cleaning the gear and resulting in no
                                                  water; suspend or hang lights over the                  350 active drifting FADs in the                       catch.
                                                  side of the purse seine vessel, skiff,                  Convention Area at any one time.                         NMFS will monitor the number of
                                                  watercraft or equipment, or direct or use                                                                     fishing days spent in the U.S. EEZ and
                                                  lights in a manner other than as needed                 Purse Seine Fishing Effort Limits                     on the high seas using data submitted in
                                                  to illuminate the deck of the purse seine                  In the past, NMFS has implemented                  logbooks and other available
                                                  vessel or associated skiffs, watercraft or              the U.S. purse seine fishing effort limits            information. If and when NMFS
                                                  equipment, to comply with navigational                  on the high seas and in the U.S. EEZ                  determines that a limit is expected to be
                                                  requirements, and to ensure the health                  adopted by the Commission as a single                 reached by a specific future date, it will
                                                  and safety of the crew. These                           combined limit in a combined area of                  publish a notice in the Federal Register
                                                  prohibitions would not apply during                     the high seas and U.S. EEZ termed the                 announcing that the purse seine fishery
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                                                  emergencies as needed to prevent                        Effort Limit Area for Purse Seine or                  in the area where the limit is expected
                                                  human injury or the loss of human life,                 ELAPS. NMFS’ reasoning for combining                  to be reached will be closed starting on
                                                  the loss of the purse seine vessel, skiffs,             the high seas and U.S. EEZ limits was                 a specific future date and will remain
                                                  watercraft or aircraft, or environmental                that it afforded more operational                     closed until the end of the calendar
                                                  damage.                                                 flexibility to the fleet and there are no             year. NMFS will publish that notice at
                                                     This proposed rule would revise the                  substantial differences in terms of                   least seven days in advance of the
                                                  introductory paragraph of 50 CFR                        effects to living marine resources for                closure date. Starting on the announced
                                                  300.223(b)(1) to make it more clear that                treating the two areas separately or                  closure date, and for the remainder of


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                                                  21752                    Federal Register / Vol. 83, No. 91 / Thursday, May 10, 2018 / Proposed Rules

                                                  calendar year, it will be prohibited for                provisions of the High Seas Fishing                   the action, why it is being considered as
                                                  U.S. purse seine vessels to fish in the                 Compliance Act (16 U.S.C. 5501 et seq.).              well as its objectives, and the legal basis
                                                  area where the limit is expected to be                                                                        for this action are contained in the
                                                                                                          Classification
                                                  reached, except that such vessels would                                                                       SUMMARY section of the preamble and in
                                                  not be prohibited from bunkering                           The Administrator, Pacific Islands                 other sections of this SUPPLEMENTARY
                                                  (refueling) during a fishery closure.                   Region, NMFS, has determined that this                INFORMATION section of the preamble.
                                                  NMFS published an interim rule on                       proposed rule is consistent with the                  The analysis follows:
                                                  August 25, 2015 (see 80 FR 51478) to                    WCPFC Implementation Act and other
                                                                                                          applicable laws, subject to further                   Estimated Number of Small Entities
                                                  remove the restriction that prohibited                                                                        Affected
                                                  U.S. purse seine vessels from                           consideration after public comment.
                                                  conducting bunkering during fishery                     Section 304(b) of the MSA provides for                   For Regulatory Flexibility Act
                                                  closures of the ELAPS. NMFS is                          a 15 day comment period for these types               purposes only, NMFS has established a
                                                  proposing to continue those regulations                 of fishery rules. Additionally, NMFS                  small business size standard for
                                                  as part of this proposed rule so that                   finds ‘‘good cause’’ under the                        businesses, including their affiliates,
                                                  bunkering would be allowed during any                   Administrative Procedure Act that a                   whose primary industry is commercial
                                                  fishery closures of the U.S. EEZ or high                longer notice and comment period                      fishing (see 50 CFR 200.2). A business
                                                  seas due to reaching a limit in a given                 would be contrary to the public interest.             primarily engaged in commercial fishing
                                                  calendar year.                                          5 U.S.C. 553(b)(B). As described above,               (NAICS code 114111) is classified as a
                                                                                                          the first FAD prohibition period would                small business if it is independently
                                                     Under existing regulations at 50 CFR
                                                                                                          begin on July 1, 2018. Providing for                  owned and operated, is not dominant in
                                                  300.218(g), NMFS can direct U.S. purse
                                                                                                          more than 15 days advance notice and                  its field of operation (including its
                                                  seine vessel owners and operators to
                                                                                                          public comment on the proposed rule                   affiliates), and has combined annual
                                                  provide daily FAD reports, specifying
                                                                                                          increases the risk that the Commission’s              receipts not in excess of $11 million for
                                                  the number of purse seine sets made on
                                                                                                          FAD prohibition period will become                    all its affiliated operations worldwide.
                                                  FADs during that day. NMFS                                                                                       The proposed rule would apply to
                                                  promulgated this regulation to help                     effective prior to the effective date of the
                                                                                                          final rule, possibly resulting in the                 owners and operators of U.S.
                                                  track a limit on the number of FAD sets                                                                       commercial fishing vessels used to fish
                                                  that was applicable in previous years                   United States’ non-compliance with its
                                                                                                          international obligations. Thus, in order             for HMS in the Convention Area,
                                                  but recognizes that this information is                                                                       including longline vessels (except those
                                                  also valuable to help predict when a                    to provide the public with the
                                                                                                          opportunity to comment on this                        operating as part of the longline
                                                  fishing effort limit is expected to be                                                                        fisheries of American Samoa, CNMI, or
                                                  reached with greater certainty. Thus,                   proposed rule while ensuring that the
                                                                                                          agency has sufficient time to consider                Guam), purse seine vessels, and
                                                  under this proposed rule, NMFS would                                                                          albacore troll vessels. Based on the
                                                  revise the existing regulations so that                 any public comments and publish a
                                                                                                          final rule that is effective by July 1,               number of U.S. vessels with WCPFC
                                                  NMFS can direct U.S. purse seine vessel                                                                       Area Endorsements, which are required
                                                  owners and operators to provide reports                 2018, NMFS is providing the public
                                                                                                          with a 15-day comment period on this                  to fish on the high seas in the
                                                  on the fishing activity of the vessel (e.g.,                                                                  Convention Area, the estimated
                                                  setting, transiting, searching), location,              proposed rule.
                                                                                                                                                                numbers of affected longline, purse
                                                  and type of set, in order to obtain better              Coastal Zone Management Act (CZMA)                    seine, and albacore troll fishing vessels
                                                  data for tracking the fishing effort limits.                                                                  is 163, 37, and 20, respectively.
                                                                                                             NMFS determined that this action is
                                                  Eastern High Seas Special Management                    consistent to the maximum extent                         Based on limited financial
                                                  Area                                                    practicable with the enforceable policies             information about the affected fishing
                                                                                                          of the approved coastal management                    fleets, and using individual vessels as
                                                     This proposed rule would remove the                  program of American Samoa, the                        proxies for individual businesses,
                                                  requirements at 50 CFR 300.222(oo) and                  Commonwealth of the Northern Mariana                  NMFS believes that all of the affected
                                                  50 CFR 300.225 for U.S. commercial                      Islands (CNMI), Guam, and the State of                longline and albacore troll vessels, and
                                                  fishing vessels to provide reports prior                Hawaii. Determinations to Hawaii and                  slightly more than half of the vessels in
                                                  to entering or exiting the EHSSMA. This                 each of the Territories were submitted                the purse seine fleet, are small entities
                                                  proposed rule would also prohibit all                   on March 12, 2018, for review by the                  as defined by the RFA; that is, they are
                                                  U.S. commercial fishing vessels fishing                 responsible state and territorial agencies            independently owned and operated and
                                                  for HMS from engaging in                                under section 307 of the CZMA.                        not dominant in their fields of
                                                  transshipments in the EHSSMA,                                                                                 operation, and have annual receipts of
                                                  beginning on January 1, 2019.                           Executive Order 12866                                 no more than $11.0 million. Within the
                                                  Administrative Changes to Existing                        This proposed rule has been                         purse seine fleet, analysis of average
                                                  Regulations                                             determined to be not significant for                  revenue, by vessel, for the three years of
                                                                                                          purposes of Executive Order 12866.                    2014–2016 reveals that average annual
                                                    The regulations at 50 CFR 300.217(b)                  This proposed rule is not expected to be              revenue among vessels in the fleet was
                                                  and 300.218(a)(2)(v) contain outdated                   an Executive Order 13771 regulatory                   about $10.2 million, and the three-year
                                                  cross references that would be corrected                action because this proposed rule is not              annual averages were less than the $11
                                                  by this proposed rule. In § 300.217,                    significant under Executive Order                     million threshold for 22 vessels in the
                                                  paragraph (b)(1) would be revised to                    12866.                                                fleet.
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                                                  provide a cross reference to
                                                  § 300.336(b)(2), not § 300.14(b), and in                Regulatory Flexibility Act (RFA)                      Recordkeeping, Reporting, and Other
                                                  § 300.218(a)(2)(v), the cross reference                   An initial regulatory flexibility                   Compliance Requirements
                                                  would be to § 300.341(a) instead of to                  analysis (IRFA) was prepared, as                        The reporting, recordkeeping and
                                                  § 300.17(a) and (b). Sections 300.14(b)                 required by section 603 of the RFA. The               other compliance requirements of this
                                                  and 300.17(a) and (b) no longer exist                   IRFA describes the economic impact                    proposed rule are described earlier in
                                                  and have been replaced through a new                    this proposed rule, if adopted, would                 the preamble. The classes of small
                                                  regulatory action implementing                          have on small entities. A description of              entities subject to the requirements and


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                                                                           Federal Register / Vol. 83, No. 91 / Thursday, May 10, 2018 / Proposed Rules                                           21753

                                                  the types of professional skills necessary              included in agreements with the                       catches of marketable species other than
                                                  to fulfill the requirements are described               governments of the CNMI and Guam                      bigeye tuna would likely be affected in
                                                  below for each of the first four elements               under regulations implementing                        a similar way if vessels do not shift to
                                                  of the proposed rule. The fifth element,                Amendment 7 to the Fishery Ecosystem                  alternative activities. Assuming for the
                                                  administrative changes to existing                      Plan for Pelagic Fisheries of the Western             moment that ex-vessel prices would not
                                                  regulations, is not considered further in               Pacific Region (Pelagics FEP) (50 CFR                 be affected by a fishery closure, under
                                                  this IRFA because it would be of a                      665.819). In 2016, the limit of 3,554 mt              the proposed rule, revenues in 2018–
                                                  housekeeping nature and not have any                    was estimated to have been reached by                 2020 to entities that participate
                                                  substantive effects on any entities.                    September 9, 2016, and in 2017, the                   exclusively in the deep-set fishery
                                                                                                          limit of 3,138 mt was estimated to have               would be approximately 29 percent less
                                                  1. Longline Bigeye Tuna Catch Limits
                                                                                                          been reached by September 1, 2017.                    than under no action. Average annual
                                                     This element of the proposed rule                    Thus, if bigeye tuna catch patterns in                ex-vessel revenues (from all species) per
                                                  would not establish any new reporting                   2018–2020 are like those in 2005–2008,                mt of bigeye tuna caught during 2005–
                                                  or recordkeeping requirements. The new                  the limit would be reached in the fourth              2008 were about $14,190/mt (in 2014
                                                  compliance requirement would be for                     quarter of the year, and if they are like             dollars, derived from the latest available
                                                  affected vessel owners and operators to                 those in 2015, 2016, or 2017, the limit               annual report on the pelagic fisheries of
                                                  cease retaining, landing, and                           would be reached in the third quarter of              the western Pacific Region (Western
                                                  transshipping bigeye tuna caught with                   the year.                                             Pacific Regional Fishery Management
                                                  longline gear in the Convention Area if                    If the bigeye tuna limit is reached                Council, 2014, Pelagic Fisheries of the
                                                  and when the bigeye tuna catch limit of                 before the end of any of the years 2018–              Western Pacific Region: 2012 Annual
                                                  3,554 mt (reduced by the amount of any                  2020 and the Convention Area longline                 Report. Honolulu, Western Pacific
                                                  overages in the preceding year) is                      bigeye tuna fishery is consequently                   Fishery Management Council)). If there
                                                  reached in any of the years 2018–2020,                  closed for the remainder of the calendar              are 128 active vessels in the fleet, as
                                                  for the remainder of the calendar year,                 year, it can be expected that affected                there were during 2005–2008, on
                                                  subject to the exceptions and provisos                  vessels would shift to the next most                  average, then under the no-action
                                                  described in other sections of this                     profitable fishing opportunity (which                 scenario of fleet-wide anual catches of
                                                  SUPPLEMENTARY INFORMATION section of                    might be not fishing at all). Revenues                5,000 mt, each vessel would catch 39
                                                  the preamble. Although the restrictions                 from that next best alternative activity              mt/yr, on average. Reductions of 29
                                                  that would come into effect in the event                reflect the opportunity costs associated              percent in 2018–2020 as a result of the
                                                  the catch limit is reached would not                    with longline fishing for bigeye tuna in              proposed limits would be about 11 mt
                                                  prohibit longline fishing, per se, they                 the Convention Area. The economic cost                per year. Applying the average ex-vessel
                                                  are sometimes referred to in this                       of the proposed rule would not be the                 revenues (from all species) of $14,190
                                                  analysis as constituting a fishery                      direct losses in revenues that would                  per mt of bigeye tuna caught, the
                                                  closure.                                                result from not being able to fish for
                                                     Fulfillment of this requirement is not                                                                     reductions in ex-vessel revenue per
                                                                                                          bigeye tuna in the Convention Area, but               vessel would be $160,000 per year, on
                                                  expected to require any professional                    rather the difference in benefits derived
                                                  skills that the vessel owners and                                                                             average.
                                                                                                          from that activity and those derived
                                                  operators do not already possess. The                   from the next best activity. The                         In the shallow-set fishery, affected
                                                  costs of complying with this                            economic cost of the proposed rule on                 entities would bear limited costs in the
                                                  requirement are described below to the                  affected entities is examined here by                 event of the limit being reached (but
                                                  extent possible.                                        first estimating the direct losses in                 most affected entities also participate in
                                                     Complying with this element of the                   revenues that would result from not                   the deep-set fishery and might bear
                                                  proposed rule could cause foregone                      being able to fish for bigeye tuna in the             costs in that fishery, as described
                                                  fishing opportunities and result in                     Convention Area as a result of the catch              below). The cost would be about equal
                                                  associated economic losses in the event                 limit being reached. Those losses                     to the revenues lost from not being able
                                                  that the bigeye tuna catch limit is                     represent the upper bound of the                      to retain or land bigeye tuna captured
                                                  reached in any of the years 2018–2020                   economic cost of the proposed rule on                 while shallow-setting in the Convention
                                                  and the restrictions on retaining,                      affected entities. Potential next-best                Area, or the cost of shifting to shallow-
                                                  landing, and transshipping bigeye tuna                  alternative activities that affected                  setting in the eastern Pacific Ocean
                                                  are imposed for portions of those years.                entities could undertake are then                     (EPO), which is to the east of 150
                                                  These costs cannot be projected                         identified in order to provide a (mostly              degrees W longitude, whichever is less.
                                                  quantitatively with any certainty. The                  qualitative) description of the degree to             In the fourth calendar quarters of 2005–
                                                  proposed annual limit of 3,554 mt can                   which actual costs would be lower than                2008, almost all shallow-setting effort
                                                  be compared to catches in 2005–2008,                    that upper bound.                                     took place in the EPO, and 97 percent
                                                  before limits were in place. The average                   Upper bounds on potential economic                 of bigeye tuna catches were made there,
                                                  annual catch in that period was 4,709                   costs can be estimated by examining the               so the cost of a bigeye tuna fishery
                                                  mt. Based on that history, as well as                   projected value of longline landings                  closure to shallow-setting vessels would
                                                  fishing patterns in 2009–2016, when                     from the Convention Area that would                   appear to be very limited. During 2005–
                                                  limits were in place, there appears to be               not be made as a result of reaching the               2008, the shallow-set fishery caught an
                                                  a relatively high likelihood of the                     limit. For this purpose, it is assumed                average of 54 mt of bigeye tuna per year
                                                  proposed limits being reached in 2018–                  that, absent this proposed rule, bigeye               from the Convention Area. If the
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                                                  2020. In 2015, for example, which saw                   tuna catches in the Convention Area in                proposed bigeye tuna catch limit is
                                                  exceptionally high catches of bigeye                    each of the years 2018–2020 would be                  reached even as early as July 31 in any
                                                  tuna, the limit of 3,502 mt was                         5,000 mt, slightly more than the average              of the years 2018–2020, the Convention
                                                  estimated to have been reached by, and                  in 2005–2008. Under this scenario,                    Area shallow-set fishery would have
                                                  the fishery was closed on, August 5 (see                imposition of annual limits of 3,554 mt               caught at that point, based on 2005–
                                                  temporary rule published July 28, 2015;                 would result in 29 percent less bigeye                2008 data, on average, 99 percent of its
                                                  80 FR 44883). The fishery was                           tuna being caught each year than under                average annual bigeye tuna catches.
                                                  subsequently re-opened for vessels                      no action. In the deep-set fishery,                   Imposition of the landings restriction at


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                                                  21754                    Federal Register / Vol. 83, No. 91 / Thursday, May 10, 2018 / Proposed Rules

                                                  that point in any of the years 2018–2020                closure: Complexities of local                        the Hawaiian Islands and were landed
                                                  would result in the loss of revenues                    management in a global fishery, Ocean                 by a U.S. vessel operating in compliance
                                                  from approximately 0.5 mt (1 percent of                 & Coastal Management 106:87–96) did                   with a permit issued under the
                                                  54 mt) of bigeye tuna, which, based on                  not identify the occurrence of any                    regulations implementing the Pelagics
                                                  recent ex-vessel prices, would be worth                 alternative activities that vessels                   FEP or the Fishery Management Plan for
                                                  no more than $5,000. Thus, expecting                    engaged in during the closure, other                  U.S. West Coast Fisheries for Highly
                                                  about 27 vessels to engage in the                       than deep-setting for bigeye tuna in the              Migratory Species.
                                                  shallow-set fishery (the annual average                 EPO, vessel maintenance and repairs,                     With respect to the first method of
                                                  in 2005–2012), the average of those                     and granting lengthy vacations to                     engaging in alternative opportunity 1
                                                  potentially lost annual revenues would                  employees. Based on those findings,                   (1.a.) (landing the bigeye tuna in one of
                                                  be no more than $200 per vessel. The                    NMFS expects that alternative                         the Participating Territories), there are
                                                  remainder of this analysis focuses on                   opportunities (3), (4), (5) and (6) are               three potentially important constraints.
                                                  the potential costs of compliance in the                probably unattractive relative to the first           First, whether the fish are landed by the
                                                  deep-set fishery.                                       two alternatives, and are not discussed               vessel that caught the fish or by a vessel
                                                     It should be noted that the impacts on               here in any further detail. NMFS                      to which the fish were transshipped, the
                                                  affected entities’ profits would be less                recognizes that vessel maintenance and                costs of a vessel transiting from the
                                                  than impacts on revenues when                           repairs and granting lengthy vacations                traditional fishing grounds in the
                                                  considering the costs of operating                      to employees are two alternative                      vicinity of the Hawaiian Archipelago to
                                                  vessels, because costs would be lower if                activities that might be taken advantage              one of the Participating Territories
                                                  a vessel ceases fishing after the catch                 of if the fishery is closed, but no further           would be substantial. Second, none of
                                                  limit is reached. Variable costs can be                 analysis of their mitigating effects is               these three locales has large local
                                                  expected to be affected roughly in                      provided here.                                        consumer markets to absorb substantial
                                                  proportion to revenues, as both variable                   Before examining in detail the two                 additional landings of fresh sashimi-
                                                  costs and revenues would stop accruing                  potential alternative fishing                         grade bigeye tuna. Third, transporting
                                                  once a vessel stops fishing. But affected               opportunities that would appear to be                 the bigeye tuna from these locales to
                                                  entities’ costs also include fixed costs,               the most attractive to affected entities, it          larger markets, such as markets in
                                                  which are borne regardless of whether a                 is important to note that under the                   Hawaii, the U.S. west coast, or Japan,
                                                  vessel is used to fish—e.g., if it is tied              proposed rule, once the limit is reached              would bring substantial additional costs
                                                  up at the dock during a fishery closure.                and the WCPO bigeye tuna fishery is                   and risks. These cost constraints suggest
                                                  Thus, profits would likely be adversely                 closed, fishing with longline gear both               that this alternative opportunity has
                                                  impacted proportionately more than                      inside and outside the Convention Area                limited potential to mitigate the
                                                  revenues.                                               during the same trip would be                         economic impacts of the proposed rule
                                                     As stated previously, actual                         prohibited (except in the case of a                   on affected small entities.
                                                  compliance costs for a given entity                     fishing trip that is in progress when the                The second method of engaging in the
                                                  might be less than the upper bounds                     limit is reached and the restrictions go              first alternative opportunity (1.b.)
                                                  described above, because ceasing fishing                into effect). For example, after the                  (having an American Samoa Longline
                                                  would not necessarily be the most                       restrictions go into effect, during a given           Limited Access Permit), would be
                                                  profitable alternative opportunity when                 fishing trip, a vessel could be used for              available only to the subset of the
                                                  the catch limit is reached. Two                         longline fishing for bigeye tuna in the               Hawaii longline fleet that has both
                                                  alternative opportunities that are                      EPO or for longline fishing for species               Hawaii and American Samoa longline
                                                  expected to be attractive to affected                   other than bigeye tuna in the                         permits (dual permit vessels). Vessels
                                                  entities include: (1) Deep-set longline                 Convention Area, but not for both. This               that do not have both permits could
                                                  fishing for bigeye tuna in the                          reduced operational flexibility would                 obtain them if they meet the eligibility
                                                  Convention Area in a manner such that                   bring costs, because it would constrain               requirements and pay the required
                                                  the vessel is considered part of the                    the potential profits from alternative                costs. For example, the number of dual
                                                  longline fishery of American Samoa,                     opportunities. Those costs cannot be                  permit vessels increased from 12 in
                                                  Guam, or the CNMI; and (2) deep-set                     quantified.                                           2009, when the first WCPO bigeye tuna
                                                  longline fishing for bigeye tuna and                       A vessel could take advantage of the               catch limit was established, to 23 in
                                                  other species in the EPO. These two                     first alternative opportunity (deep-                  2016. The previously cited NMFS study
                                                  opportunities are discussed in detail                   setting for bigeye tuna in a manner such              of the 2010 fishery closure (Richmond et
                                                  below. Four additional opportunities                    that the vessel is considered part of the             al. 2015) found that bigeye tuna
                                                  are: (3) Shallow-set longline fishing for               longline fishery of one of the three U.S.             landings of dual permit vessels
                                                  swordfish (for deep-setting vessels that                Participating Territories), by three                  increased substantially after the start of
                                                  would not otherwise do so), (4) deep-set                possible methods: (a) Landing the                     the closure on November 22, 2010,
                                                  longline fishing in the Convention Area                 bigeye tuna in one of the three                       indicating that this was an attractive
                                                  for species other than bigeye tuna, (5)                 Participating Territories, (b) holding an             opportunity for dual permit vessels, and
                                                  working in cooperation with vessels                     American Samoa Longline Limited                       suggesting that those entities might have
                                                  operating as part of the longline                       Access Permit, or (c) being considered                benefitted from the catch limit and the
                                                  fisheries of the Participating                          part of a Participating Territory’s                   closure.
                                                  Territories—specifically, receiving                     longline fishery, by agreement with one                  The third method of engaging in the
                                                  transshipments at sea from them and                     or more of the three Participating                    first alternative opportunity (1.c.)
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                                                  delivering the fish to the Hawaii market,               Territories under the regulations                     (entering into an Amendment 7
                                                  and (6) vessel repair and maintenance.                  implementing Amendment 7 to the                       agreement), was also available in 2011–
                                                  A study by NMFS of the effects of the                   Pelagics FEP (50 CFR 665.819). In the                 2017 (in 2011–2013, under section
                                                  WCPO bigeye tuna longline fishery                       first two circumstances, the vessel                   113(a) of Public Law 112–55, 125 Stat.
                                                  closure in 2010 (Richmond, L., D.                       would be considered part of the longline              552 et seq., the Consolidated and
                                                  Kotowicz, J. Hospital and S. Allen,                     fishery of the Participating Territory                Further Continuing Appropriations Act,
                                                  2015, Monitoring socioeconomic                          only if the bigeye tuna were not caught               2012, continued by Public Law 113–6,
                                                  impacts of Hawai‘i’s 2010 bigeye tuna                   in the portion of the U.S. EEZ around                 125 Stat. 603, section 110, the


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                                                                           Federal Register / Vol. 83, No. 91 / Thursday, May 10, 2018 / Proposed Rules                                            21755

                                                  Department of Commerce                                  The proportion of the U.S. fishery’s                  three U.S. Participating Territories), as
                                                  Appropriations Act, 2013; hereafter,                    annual bigeye tuna catches that were                  well as of other species landed by the
                                                  ‘‘section 113(a)’’). As a result of                     captured in the EPO from 2005 through                 fleet, could increase as a result of the
                                                  agreements that were in place in 2011–                  2008 ranged from 2 percent to 22                      constricted supply. This would mitigate
                                                  2014, the WCPO bigeye tuna fishery was                  percent, and averaged 11 percent. In                  economic losses for vessels that are able
                                                  not closed in any of those years. In                    2005–2007, that proportion ranged from                to continue fishing and landing bigeye
                                                  2015, 2016, and 2017 the fishery was                    2 percent to 11 percent, and may have                 tuna during the closure. For example,
                                                  closed but then reopened when                           been constrained by the IATTC-adoped                  the NMFS study of the 2010 closure
                                                  agreements went into effect.                            bigeye tuna catch limits established by               (Richmond et al. 2015) found that ex-
                                                  Participation in an Amendment 7                         NMFS (no limit was in place for 2008).                vessel prices during the closure in
                                                  agreement would likely not come                         Prior to 2009, most of the U.S. annual                December were 50 percent greater than
                                                  without costs to fishing businesses. As                 bigeye tuna catch by longline vessels in              the average during the previous five
                                                  an indication of the possible cost, the                 the EPO typically was made in the                     Decembers. (It is emphasized that
                                                  terms of the agreement between                          second and third quarters of the year; in             because it was an observational study,
                                                  American Samoa and the members of                       2005–2008 the percentages caught in the               neither this nor other observations of
                                                  the Hawaii Longline Association (HLA)                   first, second, third, and fourth quarters             what occurred during the closure can be
                                                  in effect in 2011 and 2012 included                     were 14, 33, 50, and 3 percent,                       affirmatively linked as effects of the
                                                  payments totaling $250,000 from the                     respectively. These data demonstrate                  fishery closure.)
                                                  HLA to the Western Pacific Sustainable                  two historical patterns—that relatively                  Conversely, a WCPO bigeye tuna
                                                  Fisheries Fund, equal to $2,000 per                     little of the bigeye tuna catch in the                fishery closure could cause a decrease
                                                  vessel. It is not known how the total                   longline fishery was typically taken in               in ex-vessel prices of bigeye tuna and
                                                  cost was allocated among the members                    the EPO (11 percent in 2005–2008, on                  other products landed by affected
                                                  of the HLA, so it is possible that the                  average), and that most EPO bigeye tuna               entities if the interruption in the local
                                                  owners of particular vessels paid                       catches were made in the second and                   supply prompts the Hawaii market to
                                                  substantially more than or less than                    third quarters, with relatively few                   shift to alternative (e.g., imported)
                                                  $2,000.                                                 catches in the fourth quarter when the                sources of bigeye tuna. Such a shift
                                                     The second alternative opportunity                   proposed catch limit would most likely                could be temporary—that is, limited to
                                                  (2) (deep-set fishing for bigeye tuna in                be reached. These two patterns suggest                2018–2020—or it could lead to a more
                                                  the EPO), would be an option for                        that there could be substantial costs for             permanent change in the market (e.g., as
                                                  affected entities only if it is allowed                 at least some affected entities that shift            a result of wholesale and retail buyers
                                                  under regulations implementing the                      to deep-set fishing in the EPO in the                 wanting to mitigate the uncertainty in
                                                  decisions of the IATTC. NMFS has                        event of a closure in the WCPO. On the                the continuity of supply from the
                                                  issued a final rule to implement the                    other hand, fishing patterns since 2008               Hawaii longline fisheries). In the latter
                                                  IATTC’s most recent resolution on the                   suggest that a substantial shift in deep-             case, if locally caught bigeye tuna
                                                  management of tropical tuna stocks (83                  set fishing effort to the EPO could occur.            fetches lower prices because of stiffer
                                                  FR 15503; April 11, 2018). The final rule               In 2009, 2010, 2011, 2012, 2013, 2014,                competition with imported bigeye tuna,
                                                  establishes an annual limit of 750 mt on                2015, and 2016 the proportions of the                 then ex-vessel prices of local product
                                                  the catch of bigeye tuna in the EPO by                  fishery’s annual bigeye tuna catches that             could be depressed indefinitely. The
                                                  vessels at least 24m in length in each of               were captured in the EPO were about                   NMFS study of the 2010 closure
                                                  the years 2018–2020. Annual longline                    16, 27, 23, 19, 36, 35, 47, and 36                    (Richmond et al. 2015) found that a
                                                  bigeye tuna catch limits have been in                   percent, respectively, and most bigeye                common concern in the Hawaii fishing
                                                  place for the EPO in most years since                   tuna catches in the EPO were made in                  community prior to the closure in
                                                  2004. Since 2009, when the limit was                    the latter half of the calendar years.                November 2010 was retailers having to
                                                  500 mt, it was reached in 2013                             The NMFS study of the 2010 closure                 rely more heavily on imported tuna,
                                                  (November 11), 2014 (October 31), and                   (Richmond et al. 2015) found that some                causing imports to gain a greater market
                                                  2015 (August 12). In 2016 NMFS                          businesses—particularly those with                    share in local markets. The study found
                                                  forecasted that the limit would be                      smaller vessels—were less inclined than               this not to have been borne out, at least
                                                  reached July 25 and subsequently closed                 others to fish in the EPO during the                  not in 2010, when the evidence gathered
                                                  the fishery, but later determined that the              closure because of the relatively long                in the study suggested that few buyers
                                                  catch limit had not been reached and re-                distances that would need to be                       adapted to the closure by increasing
                                                  opened the fishery on October 4, 2016                   travelled in the relatively rough winter              their reliance on imports, and no reports
                                                  (81 FR 69717). The limit was not                        ocean conditions. The study identified a              or indications were found of a dramatic
                                                  reached in 2017.                                        number of factors that likely made                    increase in the use of imported bigeye
                                                     The highly seasonal nature of bigeye                 fishing in the EPO less lucrative than                tuna during the closure. The study
                                                  tuna catches in the EPO and the                         fishing in the WCPO during that part of               concluded, however, that the 2010
                                                  relatively high inter-annual variation in               the year, including fuel costs and the                closure caused buyers to give increased
                                                  catches prevents NMFS from making a                     need to limit trip length in order to                 consideration to imports as part of their
                                                  useful prediction of whether and when                   maintain fish quality and because of                  business model, and it was predicted
                                                  the EPO limits in 2018–2020 are likely                  limited fuel storage capacity.                        that tuna imports could increase during
                                                  to be reached. If it is reached, this                      In addition to affecting the volume of             any future closure. To the extent that ex-
                                                  alternative opportunity would not be                    landings of bigeye tuna and other                     vessel prices would be reduced by this
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                                                  available for large longline vessels,                   species, the proposed catch limits could              action, revenues earned by affected
                                                  which constitute about a quarter of the                 affect fish prices, particularly during a             entities would be affected accordingly,
                                                  fleet.                                                  fishery closure. Both increases and                   and these impacts could occur both
                                                     Historical fishing patterns can provide              decreases appear possible. After a limit              before and after the limit is reached, and
                                                  an indication of the likelihood of                      is reached and landings from the WCPO                 as described above, possibly after 2020.
                                                  affected entities making use of the                     are prohibited, ex-vessel prices of bigeye               The potential economic effects
                                                  opportunity of deep-setting in the EPO                  tuna (e.g., that are caught in the EPO or             identified above would vary among
                                                  in the event of a closure in the WCPO.                  by vessels in the longline fisheries of the           individual business entities, but it is not


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                                                  21756                    Federal Register / Vol. 83, No. 91 / Thursday, May 10, 2018 / Proposed Rules

                                                  possible to predict the range of                        prohibition periods throughout the                    prohibition on FAD setting would make
                                                  variation. Furthermore, the impacts on a                Convention Area from July 1 through                   the high seas less favorable for fishing
                                                  particular entity would depend on both                  September 30 in each of the years 2018–               than they otherwise would be, because
                                                  that entity’s response to the proposed                  2020 and FAD prohibition periods just                 only unassociated sets would be
                                                  rule and the behavior of other vessels in               on the high seas in the Convention Area               allowed there. It is not possible to
                                                  the fleet, both before and after the catch              from November 1 through December 31                   characterize how influential that factor
                                                  limit is reached. For example, the                      in each of the same years. There would                would be, however. Thus, it is not
                                                  greater the number of vessels that take                 also be a limit of 350 active FADs that               possible to predict the effects in terms
                                                  advantage—before the limit is reached—                  may be deployed per vessel at any given               of the spatial distribution of fishing
                                                  of the first alternative opportunity (1),               time. Anecdotal information from the                  effort or the proportion of fishing effort
                                                  fishing as part of one of the Participating             U.S. purse seine fishing industry                     that is made on FADs.
                                                  Territory’s fisheries, the lower the                    indicates that U.S. purse seine vessels                  With respect to both the three-month
                                                  likelihood that the limit would be                      have not ever deployed more than 350                  FAD closure and two-month high seas
                                                  reached.                                                active FADs at any given time, so NMFS                FAD closure: As for the limits on fishing
                                                     The fleet’s behavior in 2011 and 2012                does not expect that the limit would be               effort, vessel operators might choose to
                                                  is illustrative. In both those years, most              constraining or otherwise affect the                  schedule their routine maintenance
                                                  vessels in the Hawaii fleet were                        behavior of purse seine operations, and               periods so as to take best advantage of
                                                  included in a section 113(a)                            it is not considered further in this IRFA.            the available opportunities for making
                                                  arrangement with the government of                         Fulfillment of the element’s                       FAD sets, such as during the FAD
                                                  American Samoa, and as a consequence,                   requirements is not expected to require               closures. However, the limited number
                                                  the U.S. longline catch limit was not                   any professional skills that the vessel               of vessel maintenance facilities in the
                                                  reached in either year. Thus, none of the               owners and operators do not already                   region might constrain vessel operators’
                                                  vessels in the fleet, including those not               possess. The costs of complying with                  ability to do this.
                                                  included in the section 113(a)                          the requirements are described below to                  It is emphasized that the indicative
                                                  arrangements, were prohibited from                      the extent possible.                                  example given above is based on the
                                                  fishing for bigeye tuna in the                             The proposed FAD restrictions would                assumption that the FAD set ratio would
                                                  Convention Area at any time during                      substantially constrain the manner in                 be 50 percent during periods when FAD
                                                  those two years. The fleet’s experience                 which purse seine fishing could be                    sets are allowed, as well as that sets are
                                                  in 2010 (before opportunities under                     conducted in the specified areas and                  distributed evenly throughout the year.
                                                  section 113(a) or Amendment 7 to the                    periods in the Convention Area; in those              These assumptions are weak from
                                                  Pelagics FEP were available) provides                   areas and during those periods, vessels               several perspectives, so the results
                                                  another example of how economic                         would be able to set only on free, or                 should be interpreted with caution.
                                                  impacts could be distributed among                      ‘‘unassociated,’’ schools.                            First, as described above, FAD set ratios
                                                  different entities. In 2010 the limit was                  With respect to the three-month FAD                have varied widely from year to year,
                                                  reached and the WCPO bigeye tuna                        closure throughout the Convention                     indicating that the conditions that
                                                  fishery was closed on November 22. As                   Area: Assuming that sets would be                     dictate ‘‘optimal’’ FAD set ratios for the
                                                  described above, dual permit vessels                    evenly distributed through the year, the              fleet vary widely from year to year, and
                                                  were able to continue fishing outside                   number of annual FAD sets would be                    cannot be predicted with any certainty.
                                                  the U.S. EEZ around the Hawaiian                        expected to be about three-fourths the                Second, the optimal FAD set ratio
                                                  Archipelago and benefit from the                        number that would occur without a                     during open periods might depend on
                                                  relatively high ex-vessel prices that                   seasonal FAD closure. For example,                    how long and when those periods occur.
                                                  bigeye tuna fetched during the closure.                 during 2014–2016, the proportion of all               For example, FAD fishing might be
                                                     In summary, based on potential                       sets that were made on FADs when FAD                  particularly attractive soon after a
                                                  reductions in ex-vessel revenues, NMFS                  setting was allowed was 50 percent. As                closed period during which FADs
                                                  has estimated that the upper bound of                   an indicative example, if the fleet makes             aggregated fish but were not fished on.
                                                  potential economic impacts of the                       8,000 sets in a given year (somewhat                  These factors are not explicitly
                                                  proposed rule on affected longline                      more than the 2014–2016 average of                    accounted for in this analysis, but the 50
                                                  fishing entities could be roughly                       7,420 sets per year) and 50 percent of                percent FAD ratio used in this analysis
                                                  $160,000 per vessel per year, on                        those are FAD sets, it would make 4,000               was taken from 2014–2016, when there
                                                  average. The actual impacts to most                     FAD sets. If there is a three-month                   was a three-month FAD closure, so it is
                                                  entities are likely to be substantially less            closure and 50 percent of the sets                    probably a better indicator for the action
                                                  than those upper bounds, and for some                   outside the closure are FAD sets, and                 alternatives than FAD set ratios for years
                                                  entities the impacts could be neutral or                sets are evenly distributed throughout                prior to 2009, when no seasonal FAD
                                                  positive (e.g., if one or more                          each year, the annual number of FAD                   closures were in place. With respect to
                                                  Amendment 7 agreements are in place                     sets would be 3,000. This can be                      the distribution of sets through the year,
                                                  in 2018–2020 and the terms of the                       compared to the estimated 2,494 annual                the existence of collective limits on
                                                  agreements are such that the U.S.                       FAD sets that were made in 2014–2016,                 fishing effort might create an incentive
                                                  longline fleet is effectively                           on average, when there were three-                    for individual vessels to fish harder
                                                  unconstrained by the catch limits).                     month FAD closures.                                   earlier in the year than they otherwise
                                                                                                             With respect to the two-month high                 would, resulting in a ‘‘race to fish.’’
                                                  2. FAD Restrictions                                     seas FAD closure: The effects of this                 Limitations on fishing effort throughout
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                                                     This element of the proposed rule                    element are difficult to predict. If the              the Convention Area could cause
                                                  would not establish any new reporting                   high seas are closed to all purse seine               vessels to fish (irrespective of set type
                                                  or recordkeeping requirements. The new                  fishing during November–December as a                 or the timing of FAD closures) harder
                                                  requirement would be for affected vessel                result of the fishing effort limit being              earlier in a given year than they would
                                                  owners and operators to comply with                     reached, the high seas FAD closure                    without the limits. However, any such
                                                  the FAD restrictions described earlier in               during those two months would have no                 effect is not expected to be great,
                                                  the SUPPLEMENTARY INFORMATION section                   additional effect whatsoever. If the high             because most vessels in the fleet tend to
                                                  of the preamble, including FAD                          seas are not closed to fishing, the                   fish virtually full time, leaving little


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                                                                           Federal Register / Vol. 83, No. 91 / Thursday, May 10, 2018 / Proposed Rules                                             21757

                                                  flexibility to increase fishing effort at               U.S. EEZ limit in a given year to 558                   for the U.S. EEZ, this minority might
                                                  any particular time of the year.                        fishing days if 458 fishing days are used               take more advantage of it than it has in
                                                     Vessels in the U.S. WCPO purse seine                 by October 1 of that year.                              the past.
                                                  fleet make both unassociated sets and                      Fulfillment of this element’s                           Regarding the high seas from 2009
                                                  FAD sets when not constrained by                        requirements is not expected to require                 through 2017, between 31 and 135
                                                  regulation, so one type of set is not                   any professional skills that the vessel                 percent of the proposed limit of 1,370
                                                  always more valuable or efficient than                  owners and operators do not already                     fishing days was used, and at least 100
                                                  the other type. Which set type is                       possess. The costs of complying with                    percent was used in three of the nine
                                                  optimal at any given time is a function                 the requirements are described below to                 years. In two years, 2015 and 2016, the
                                                  of immediate conditions in and on the                   the extent possible.                                    ELAPS was closed for part of the year
                                                  water, but probably also of such factors                   Regarding the modification to the                    (starting June 15 in 2015, and September
                                                  as fuel prices (unassociated sets involve               daily reporting requirement, the specific               2 in 2016), so more fishing effort might
                                                  more searching time and thus tend to                    information required in the reports                     have occurred in those two years were
                                                  bring higher fuel costs than FAD sets)                  would be slightly modified from those                   there no limits. This history suggests a
                                                  and market conditions (e.g., FAD                        of the existing ‘‘Daily FAD reports,’’ but              substantial likelihood of the proposed
                                                  fishing, which tends to result in greater               the costs of compliance are not expected                high seas limit being reached in any of
                                                  catches of lower-value skipjack tuna and                to change.                                              the years 2018–2020.
                                                  smaller yellowfin tuna and bigeye tuna                     Regarding the fishing effort limits, if                 Two factors could have a substantial
                                                  than unassociated sets, might be more                   and when the fishery on the high seas                   influence on the amount of fishing effort
                                                  attractive and profitable when canneries                or in the U.S. EEZ is closed as a result                in the U.S. EEZ and on the high seas in
                                                  are not rejecting small fish). Clearly, the             of a limit being reached in any of the                  2018–2020: First, the number of fishing
                                                  ability to do either type of set is                     years 2018–2020, owners and operators                   days available in foreign waters (the
                                                  valuable, and constraints on the use of                 of U.S. purse seine vessels would have                  fleet’s main fishing grounds) pursuant to
                                                  either type can be expected to bring                    to cease fishing in that area for the                   the SPTT will influence the incentive to
                                                  adverse economic impacts to fishing                     remainder of the calendar year. Closure                 fish outside those waters, including the
                                                  operations. Thus, the greater the                       of the fishery in either of those areas                 U.S. EEZ and high seas. Second, El
                                                  constraints on the ability to make FAD                  could thereby cause foregone fishing                    Niño—Southern Oscillation (ENSO)
                                                  sets, the greater the expected economic                 opportunities and associated economic                   conditions will influence where the best
                                                  impacts of the action. Because the                      losses if the area contains preferred                   fishing grounds are.
                                                  factors affecting the relative value of                 fishing grounds during such a closure.                     Regarding fishing opportunities in
                                                  FAD sets and unassociated sets are                      Historical fishing rates in the two areas               foreign waters, in December 2016, the
                                                  many, and the relationships among                       give a rough indication of the likelihood               United States and PIPs agreed upon a
                                                  them are not well known, it is not                      of the limits being reached.                            revised SPTT, and under this new
                                                  possible to quantify the expected                          Regarding the U.S. EEZ, from 2009                    agreement U.S. purse seine fishing
                                                  economic impacts of the FAD                             through 2017 (NMFS has only                             businesses can purchase fishing days in
                                                  restrictions. However, it appears                       preliminary estimates for 2017), no                     the EEZs of the PIPs. There are limits on
                                                  reasonable to conclude the following:                   more than 50 percent of the proposed                    the number of such ‘‘upfront’’ fishing
                                                  First, the FAD restrictions would                       limit of 458 fishing days was ever used                 days that may be purchased. These
                                                  adversely impact producer surplus                       (and no more than the 41 percent of the                 limits can influence the amount of
                                                  relative to the no-action alternative. The              possible limit of 558 fishing days). This               fishing in other areas, such as the U.S.
                                                  fact that the fleet has made such a                                                                             EEZ and the high seas, as well as the
                                                                                                          history suggests a relatively low
                                                  substantial portion of its sets on FADs                                                                         EPO. For example, if the number of
                                                                                                          likelihood of the proposed EEZ limit
                                                  in the past indicates that prohibiting the                                                                      available upfront fishing days is
                                                                                                          being reached in 2018–2020. However,
                                                  use of FADs in the specified areas and                                                                          relatively small, fishing effort in the
                                                                                                          the allowance for an extra 100 fishing
                                                  periods could bring substantial costs                                                                           U.S. EEZ and/or high seas might be
                                                                                                          days if the 458 fishing days are used by
                                                  and/or revenue losses. Second, vessel                                                                           relatively great. In fact, the number of
                                                                                                          October 1 could provide an incentive for
                                                  operators might be able to mitigate the                                                                         upfront days available for the Kiribati
                                                                                                          the fleet to use more fishing days in the
                                                  impacts of the FAD restrictions by                                                                              EEZ, which has traditionally constituted
                                                                                                          EEZ than it otherwise would.
                                                  scheduling their routine vessel and                                                                             important fishing grounds for the U.S.
                                                                                                          Furthermore, this would be the first
                                                  equipment maintenance during the FAD                                                                            fleet, is notably small—only 300 fishing
                                                                                                          time that separate limits would be                      days per year. However, the new SPTT
                                                  closures, but this opportunity might be                 established for the EEZ and the high
                                                  constrained by the limited vessel                                                                               regime provides for U.S. purse seine
                                                                                                          seas, so the incentives for individual                  fishing businesses to purchase
                                                  maintenance facilities in the region.                   vessels in the fleet would change. A                    ‘‘additional’’ fishing days through direct
                                                  3. Purse Seine Fishing Effort Limits                    minority of the fleet is authorized to fish             bilateral agreements with the PIPs.
                                                     This element of the proposed rule                    in the U.S. EEZ (8 of the 33 vessels                    NMFS cannot project how many
                                                  would not establish any new reporting                   currently licensed under the South                      additional days will be purchased in
                                                  or recordkeeping requirements, but the                  Pacific Tuna Treaty (SPTT) 1 have                       any given years, so cannot gauge how
                                                  existing ‘‘Daily FAD reports’’ required at              fishery endorsements on their U.S.                      the limits on upfront days might
                                                  50 CFR 300.218(g) would be slightly                     Coast Guard Certificates of                             influence fishing effort in the U.S. EEZ
                                                  revised, and renamed ‘‘Daily purse seine                Documentation, which are required to                    or on the high seas. Limits on upfront
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                                                  fishing effort reports’’ and would                      fish in the U.S. EEZ, and 1 of the other                days are therefore not considered here
                                                  slightly modify the type of information                 4 purse seine vessels with WCPFC Area                   any further.
                                                  collected.                                              Endorsements has a fishery                                 Additionally, effective January 1,
                                                     There would be annual limits of 1,370                endorsement), and with a separate limit                 2015, Kiribati prohibited commercial
                                                  and 458 fishing days on the high seas                     1 The majority of U.S. purse seine fishing activity
                                                                                                                                                                  fishing in the Phoenix Islands Protected
                                                  and in the U.S. EEZ, respectively, in the               in the Convention Area takes place in the waters of
                                                                                                                                                                  Area, which is a large portion of the
                                                  Convention Area. In addition, there                     Pacific Island Parties to the SPTT (PIPs), pursuant     Kiribati EEZ around the Phoenix
                                                  would be a mechanism to increase the                    to the terms of the SPTT.                               Islands. These limitations in the Kiribati


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                                                  21758                    Federal Register / Vol. 83, No. 91 / Thursday, May 10, 2018 / Proposed Rules

                                                  EEZ in 2015 probably made fishing in                    industry intends to internally allocate                  With respect to fishing in the EPO:
                                                  the ELAPS more attractive than it                       the proposed limits.                                  The fleet has generally increased its
                                                  otherwise would be.                                        In summary, although difficult to                  fishing operations in the EPO since
                                                     Regarding El Niño Southern                          predict, either the U.S. EEZ or high seas             2014, and as of 2017, there were 17
                                                  Oscillation (ENSO) conditions, the                      limits could be reached in any of the                 purse seine vessel in the WCPO fleet
                                                  eastern areas of the WCPO tend to be                    years 2018–2020, especially the high                  that are also listed on the IATTC Vessel
                                                  comparatively more attractive to the                    seas limits. If either limit is reached in            Register. In order to fish in the EPO, a
                                                  U.S. purse seine fleet during El Niño                  a given year, the fleet would be                      vessel must be on the IATTC’s Regional
                                                  events, when warm surface water                         prohibited from fishing in that area for              Vessel Register and categorized as active
                                                  spreads from the western Pacific to the                 the remainder of the calendar year.                   (50 CFR 300.22(b)), which involves fees
                                                  eastern Pacific and large, valuable                        The closure of any fishing grounds for             of about $14.95 per cubic meter of well
                                                  yellowfin tuna become more vulnerable                   any amount of time can be expected to                 space per year (e.g., a vessel with 1,200
                                                  to purse seine fishing and trade winds                  bring adverse impacts to affected                     m3 of well space would be subject to
                                                  lessen in intensity. Consequently, the                  entities (e.g., because the open area                 annual fees of $17,940). (As an
                                                  U.S. EEZ and high seas, much of which                   might, during the closed period, be less              exception to this rule, an SPTT-licensed
                                                  is situated in the eastern range of the                 productive than the closed area, and                  vessel is allowed to make one fishing
                                                  fleet’s fishing grounds, is likely to be                vessels might use more fuel and spend                 trip in the EPO each year without being
                                                  more important fishing grounds to the                   more time having to travel to open                    categorized as active on the IATTC
                                                  fleet during El Niño events (as                        areas). The severity of the impacts of a              Regional Vessel Register. The trip must
                                                  compared to neutral or La Niña events).                closure would depend greatly on the                   not exceed 90 days in length, and there
                                                  This is supported by there being a                      length of the closure and where the                   is an annual limit of 32 such trips for
                                                  statistically significant correlation                   most favored fishing grounds are during               the entire SPTT-licensed fleet (50 CFR
                                                  between annual average per-vessel                       the closure. A study by NMFS (Chan, V.                300.22(b)(1)).) The number of U.S. purse
                                                  fishing effort in the ELAPS and the                     and D. Squires. 2016. Analyzing the                   seine vessels in the WCPO fleet that
                                                  Oceanic Niño Index, a common measure                   economic impacts of the 2015 ELAPS                    have opted to be categorized as such has
                                                  of ENSO conditions, over the life of the                closure. NMFS Internal Report)                        increased in the last few years from zero
                                                  SPTT through 2010.                                      estimated that the overall losses to the              to 17, probably largely a result of
                                                     El Niño conditions were present in                                                                        constraints on fishing days in the WCPO
                                                                                                          combined sectors of the vessels,
                                                  2015 and in the first half of 2016, and                                                                       and/or uncertainty in future access
                                                                                                          canneries and vessel support companies
                                                  might have contributed to the relatively                                                                      arrangements under the SPTT. This
                                                                                                          from the 2015 ELAPS closure ranged
                                                  high rates of fishing in the ELAPS in                                                                         suggests an increasing attractiveness of
                                                                                                          from $11 million and $110 million
                                                  those years. ENSO neutral conditions                                                                          fishing in the EPO, in spite of the costs
                                                                                                          depending on the counterfactual period
                                                  began in the latter half of 2016, and
                                                                                                          considered. These results suggest that                associated with doing so. However, in
                                                  continued until the fourth quarter of
                                                                                                          there were impacts from the ELAPS                     2018 vessels probably will not have the
                                                  2017, when there was a shift to La Niña
                                                                                                          closure on the American Samoa                         opportunity to fish in the EPO year-
                                                  conditions, which persisted through
                                                                                                          economy and a connection between U.S.                 round. To implement a recent decision
                                                  early 2018 (and which is consistent with
                                                                                                          purse seine vessels and the broader                   of the IATTC, NMFS has published a
                                                  the moderate rates of fishing in the
                                                                                                          American Samoa economy.                               final rule that requires purse seine
                                                  ELAPS in 2017). As of February 8, 2018,
                                                                                                             If either the U.S. EEZ or high seas is             vessels to choose between two EPO
                                                  the National Weather Service states that
                                                                                                          closed, possible next-best opportunities              fishing prohibition periods each year in
                                                  a transition from La Niño to ENSO-
                                                                                                          for U.S. purse seine vessels fishing in               2018–2020: July 29–October 8 or
                                                  neutral conditions is likely (∼55 percent
                                                  chance) in March–May of 2018 (NWS                       the WCPO include fishing in the other                 November 9–January 19 (72 days in
                                                  2018). Thus ENSO conditions might                       of the two areas, fishing in foreign EEZs             either case). Thus, the opportunity to
                                                  have a negative influence on fishing in                 inside the Convention Area, fishing                   fish in the EPO might be constrained,
                                                  the U.S. EEZ and the high seas early in                 outside the Convention Area in EPO,                   depending on when the U.S. EEZ and/
                                                  2018 and a largely neutral influence for                and not fishing.                                      or high seas in the WCPFC Area is
                                                  the rest of 2018. Their influence on                       With respect to fishing in the U.S.                closed, and which EPO closure period a
                                                  fishing effort in 2019 and 2020 cannot                  EEZ or on the high seas: If the U.S. EEZ              given vessel operator chooses.
                                                  be predicted with any certainty.                        were closed, the high seas would be                      With respect to not fishing at all
                                                     Another potentially important factor                 available to the fleet until its limit is             during a closure of the U.S. EEZ or high
                                                  is that the EEZ and high seas limits                    reached. If the high seas were closed,                seas: This would mean a loss of any
                                                  would be competitive limits, so their                   the U.S. EEZ would be available until its             revenues from fishing. However, many
                                                  establishment could cause a ‘‘race to                   limit is reached, but only for the vessels            of the vessels’ variable operating costs
                                                  fish’’ in the two areas. That is, vessel                with fishery endorsements on their                    would be avoided in that case, and it is
                                                  operators might seek to take advantage                  Certificates of Documentation (currently              possible that for some vessels a portion
                                                  of the limited number of fishing days                   9, including 8 vessels with SPTT                      of the time might be used for productive
                                                  available in the areas before the limits                licenses and one additional vessel                    activities like vessel and equipment
                                                  are reached, and fish harder in the                     without).                                             maintenance.
                                                  ELAPS than they would if there were no                     With respect to fishing in the                        The opportunity costs of engaging in
                                                  limits. On the one hand, any such race-                 Convention Area in foreign EEZs: As                   next-best opportunities in the event of a
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                                                  to-fish effect might be reflected in the                described above, under the SPTT the                   closure are not known, so the potential
                                                  history of fishing in the ELAPS,                        fleet might have substantial fishing days             impacts cannot be quantified. However,
                                                  described above. On the other hand,                     available in the Pacific Island country               to give an indication of the magnitude
                                                  anecdotal information from the fishing                  EEZs that dominate the WCPO, but it is                of possible economic impacts to
                                                  industry suggests that the limits might                 not possible to predict how many                      producers in the fishery (i.e., an
                                                  have been internally allocated by the                   fishing days will be available to the fleet           indication of the upper bound of those
                                                  fleet, which might have tempered any                    as a whole or to individual fishing                   impacts), information on revenues per
                                                  race to fish. It is not known whether the               businesses.                                           day is provided here.


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                                                                           Federal Register / Vol. 83, No. 91 / Thursday, May 10, 2018 / Proposed Rules                                           21759

                                                     The last five years for which catch                  possess. The costs of complying with                  purse seine entities would be
                                                  estimates for the U.S. WCPO purse seine                 the requirements are described below to               disproportionately greater than those on
                                                  fleet are available are 2012–2016. Those                the extent possible.                                  large purse seine entities.
                                                  estimates, adjusted to an indicative fleet                 Regarding the entry/exit notices,
                                                                                                          when NMFS established the                             Duplicating, Overlapping, and
                                                  size of 35 vessels, equate to annual
                                                                                                          requirement in 2012 (final rule                       Conflicting Federal Regulations
                                                  average catches of skipjack tuna,
                                                  yellowfin tuna, and bigeye tuna of                      published December 3, 2012; 77 FR                       NMFS has not identified any Federal
                                                  236,077 mt, 24,802 mt, and 4,213 mt,                    71501), it estimated that each report                 regulations that duplicate, overlap with,
                                                  respectively, or 265,091 mt in total.                   would require about 15 minutes of labor               or conflict with the proposed
                                                  Applying an indicative current Bangkok                  (at a labor cost of about $60 per hour)               regulations.
                                                  cannery price for skipjack tuna of                      and no more than $1 in communication
                                                                                                                                                                Alternatives to the Proposed Rule
                                                  $1,500 per mt to all three species, the                 costs, for an estimated total cost of
                                                  value of annual fleet-wide catches at                   compliance of about $16 per notice. At                   NMFS has sought to identify
                                                  2012–2016 average levels would be                       that time, NMFS estimated that each                   alternatives that would minimize the
                                                  about $398 million, equivalent to a little              longline vessel would enter and exit the              proposed rule’s economic impacts on
                                                  more than $1 million per calendar day,                  EHSSMA between zero and                               small entities (‘‘significant
                                                  on average. It should be noted that                     approximately four times per year                     alternatives’’). Taking no action could
                                                  cannery prices are fairly volatile; for                 (requiring 0–8 notices per year at an                 result in lesser adverse economic
                                                  example, cannery prices are much lower                  annual cost of $0–128), each purse seine              impacts than the proposed action for
                                                  now than prices during most of 2017.                    vessel would do so between zero and                   affected entities (but as described below,
                                                     In addition to the effects described                 approximately two times per year                      for some affected longline entities, the
                                                  above, the proposed limits could affect                 (requiring 0–4 notices per year at an                 proposed rule could be more
                                                  the temporal distribution of fishing                    annual cost of $0–64), and each albacore              economically beneficial than no-action),
                                                  effort in the U.S. purse seine fishery.                 troll vessel would do so between zero                 but NMFS does not prefer the no-action
                                                  Since the limits would apply fleet-                     and two times per year (requiring 0–4                 alternative, because it would be
                                                  wide—that is, they would not be                         notices per year at an annual cost of $0–             inconsistent with the United States’
                                                  allocated to individual vessels—vessel                  64). According to the notices received                obligations under the Convention.
                                                  operators might have an incentive to                    by NMFS, zero longline vessels and zero               Alternatives identified for each of the
                                                  fish harder in the affected areas earlier               albacore troll vessels have entered the               four elements of the proposed rule are
                                                  in each calendar year than they                         EHSSMA from 2013 through 2017, and                    discussed below.
                                                  otherwise would. Such a race-to-fish                    there have been nine entries/exits by
                                                  effect might also be expected in the time               purse seine fishing vessels. In any case,             1. Longline Bigeye Tuna Catch Limits
                                                  period between when a closure of the                    under the proposed rule, commercial                      NMFS has not identified any
                                                  fishery is announced and when it is                     fishing vessels would be relieved of                  significant alternatives for this element
                                                  actually closed, which would be at least                about $16 in compliance costs each time               of the proposed rule, other than the no-
                                                  seven calendar days. To the extent such                 they enter or exit the EHSSMA.                        action alternative.
                                                  temporal shifts occur, they could affect                                                                      2. FAD Restrictions
                                                                                                          Disproportionate Impacts
                                                  the seasonal timing of fish catches and
                                                  deliveries to canneries. The timing of                     As described above, the type of the                   NMFS considered in detail one
                                                  cannery deliveries by the U.S. fleet                    impacts would vary greatly among                      alternative to this element of the
                                                  alone (as it might be affected by a race                fishing gear types (i.e., longline versus             proposed rule, but only with respect to
                                                  to fish in the EEZ or high seas) is                     albacore troll versus purse seine), and               the timing of the two-month FAD
                                                  unlikely to have an appreciable impact                  the magnitude of the impacts also could               closure for the high seas. CMM 2017–01
                                                  on prices, because many canneries in                    vary greatly by fishing gear type (but                allows members to choose either
                                                  the Asia-Pacific region and elsewhere                   they are difficult to quantify and                    November–December, as in this
                                                  buy from the fleets of multiple nations.                compare). Nevertheless, all the affected              proposed rule, or April–May. NMFS has
                                                  A race to fish could bring costs to                     entities in the longline and albacore                 compared the expected direct economic
                                                  affected entities if it causes vessel                   troll fishing sectors are small entities, so          impacts of the two alternatives on purse
                                                  operators to forego vessel maintenance                  there would be no disproportionate                    seine fishing businesses in the
                                                  in favor of fishing or to fish in weather               impacts between small and large entities              regulatory impact review for the
                                                  or ocean conditions that they otherwise                 within those sectors. In the purse seine              proposed rule. The analysis finds that a
                                                  would not. This could bring costs in                    fishing sector, slightly more than half               November–December closure is more
                                                  terms of the health and safety of the                   the affected entities are small entities.             likely to have a lesser direct economic
                                                  crew as well as the economic                            The direct effect of the proposed rule                impact on those businesses than an
                                                  performance of the vessel.                              would be to constrain fishing effort by               April–May closure, primarily because
                                                                                                          purse seine fishing vessels, with                     the later closure period is more likely to
                                                  4. Eastern High Seas Special                            consequent constraining effects on both               run concurrently with a closure of the
                                                  Management Area                                         revenues (because catches would be                    high seas in the Convention Area to
                                                     This element of the proposed rule                    less) and operating costs (because less               purse seine fishing (if the fishing effort
                                                  would remove a reporting/                               fishing would be undertaken). Although                limit in this proposed rule is reached),
                                                  recordkeeping requirement, the                          some purse seine fishing entities are                 in which case the FAD closure would
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                                                  requirement to notify NMFS when                         larger than others, NMFS is not aware                 bring no additional economic impacts.
                                                  entering and exiting the EHSSMA. It                     of any differences between the small
                                                  would also establish a prohibition on                   entities and the large entities (as defined           3. Purse Seine Fishing Effort Limits
                                                  transshipment in the EHSSMA.                            by the RFA) in terms of their capital                    In the past, NMFS implemented the
                                                     Fulfillment of this element’s                        costs, operating costs, or other aspects of           U.S. purse seine fishing effort limits on
                                                  requirements is not expected to require                 their businesses. Accordingly, there is               the high seas and in the U.S. EEZ
                                                  any professional skills that the vessel                 no information to suggest that the direct             adopted by the Commission as a single
                                                  owners and operators do not already                     adverse economic impacts on small                     combined limit in the ELAPS. For this


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                                                  21760                    Federal Register / Vol. 83, No. 91 / Thursday, May 10, 2018 / Proposed Rules

                                                  proposed rule, in light of CMM 2017–                      Dated: May 4, 2018.                                 directed by the Pacific Islands Regional
                                                  01’s provision allowing the United                      Samuel D. Rauch, III,                                 Administrator, within 24 hours of the
                                                  States to transfer some of its EEZ fishing              Deputy Assistant Administrator for                    end of each day that the vessel is at sea
                                                  days to the high seas, there is a need to               Regulatory Programs, National Marine                  in the Convention Area, the activity of
                                                  separately account for the U.S. high seas               Fisheries Service.                                    the vessel (e.g., setting, transiting,
                                                  limit and the U.S. EEZ limit. Thus,                       For the reasons set out in the                      searching), location and type of set, if a
                                                  combining the two limits into a single                  preamble, 50 CFR part 300 is proposed                 set was made during that day.
                                                  limit for the ELAPS is not a practical                  to be amended as follows:                             *     *     *      *     *
                                                  alternative, and NMFS has not                                                                                 ■ 5. In § 300.222, revise paragraphs (v),
                                                  considered it in detail.                                PART 300—INTERNATIONAL                                (w), (oo), and (pp) as follows:
                                                                                                          FISHERIES REGULATIONS
                                                  4. Eastern High Seas Special                                                                                  § 300.222   Prohibitions.
                                                  Management Area                                         Subpart O—Western and Central                         *      *    *     *     *
                                                    NMFS has not identified any                           Pacific Fisheries for Highly Migratory                   (v) Use a fishing vessel equipped with
                                                  significant alternatives for this element               Species                                               purse seine gear to fish in an area closed
                                                  of the proposed rule, other than the no-                                                                      to purse seine fishing under
                                                  action alternative.                                     ■ 1. The authority citation for 50 CFR                § 300.223(a).
                                                                                                          part 300, subpart O, continues to read as                (w) Set a purse seine around, near or
                                                  Paperwork Reduction Act                                 follows:                                              in association with a FAD or a vessel,
                                                    This proposed rule contains a                             Authority: 16 U.S.C. 6901 et seq.                 deploy, activate, or service a FAD, or
                                                  collection-of-information requirement                   ■2. In § 300.211, add definition ‘‘Active             use lights in contravention of
                                                  subject to review and approval by OMB                   FAD’’ to read as follows:                             § 300.223(b).
                                                  under the Paperwork Reduction Act                                                                             *      *    *     *     *
                                                  (PRA). This requirement has been                        § 300.211    Definitions.                                (oo) Transship in the Eastern High
                                                  submitted to OMB for approval. Public                   *     *      *    *     *                             Seas Special Management Area in
                                                  reporting burden for the daily report of                  Active FAD is a FAD that is equipped                contravention of § 300.225.
                                                  purse seine effort information is                       with a buoy with a clearly marked                        (pp) Fail to submit, or ensure
                                                  estimated to average 10 minutes per                     reference number allowing its                         submission of, a daily purse seine
                                                  response, including the time for                        identification and equipped with a                    fishing effort report as required in
                                                  reviewing instructions, searching                       satellite tracking system to monitor its              § 300.218(g).
                                                  existing data sources, gathering and                    position.                                             *      *    *     *     *
                                                  maintaining the data needed, and                        *     *      *    *     *                             ■ 6. In § 300.223, revise paragraphs (a),
                                                  completing and reviewing the collection                 ■ 3. In § 300.217, revise paragraph (b)(1)            (b)(1) and (2), and add paragraph (b)(3)
                                                  information.                                            to read as follows:                                   to read as follows:
                                                    Public comment is sought regarding:
                                                  Whether this proposed collection of                     § 300.217    Vessel identification.                   § 300.223   Purse seine fishing restrictions.
                                                  information is necessary for the proper                 *      *    *      *    *                             *      *     *     *     *
                                                  performance of the functions of the                        (b) * * *                                             (a) Fishing effort limits. This
                                                  agency, including whether the                              (1) Vessels shall be marked in                     paragraph establishes limits on the
                                                  information shall have practical utility;               accordance with the identification                    number of fishing days that fishing
                                                  the accuracy of the burden estimate;                    requirements of § 300.336(b)(2), and if               vessels of the United States equipped
                                                  ways to enhance the quality, utility, and               an IRCS has not been assigned to the                  with purse seine gear may operate in the
                                                  clarity of the information to be                        vessel, then the Federal, State, or other             Convention Area in the area between
                                                  collected; and ways to minimize the                     documentation number used in lieu of                  20° N latitude and 20° S latitude in a
                                                  burden of the collection of information,                the IRCS must be preceded by the                      calendar year.
                                                  including through the use of automated                  characters ‘‘USA’’ and a hyphen (that is,                (1) For the high seas there is a limit
                                                  collection techniques or other forms of                 ‘‘USA-’’).                                            of 1,370 fishing days per calendar year.
                                                  information technology. Send comments                   *      *    *      *    *                                (2) For the U.S. EEZ there is a limit
                                                  on these or any other aspects of the                    ■ 4. In § 300.218, revise paragraphs                  of 458 fishing days per calendar year. If
                                                  collection of information to Michael D.                 (a)(2)(v) and (g) to read as follows:                 NMFS expects that this limit will be
                                                  Tosatto, Regional Administrator, NMFS                                                                         reached by October 1 in a given
                                                  PIRO (see ADDRESSES), and by email to                   § 300.218 Reporting and recordkeeping                 calendar year, NMFS will publish a
                                                  OIRA_Submission@omb.eop.gov or fax                      requirements.                                         notice in the Federal Register increasing
                                                  to 202–395–5806. Notwithstanding any                    *     *      *    *     *                             the limit for that calendar year to 558
                                                  other provision of the law, no person is                  (a) * * *                                           fishing days no later than seven days
                                                  required to respond to, and no person                     (2) * * *                                           prior to October 1.
                                                  shall be subject to penalty for failure to                (v) High seas fisheries. Fishing                       (3) NMFS will determine the number
                                                  comply with, a collection of information                activities subject to the reporting                   of fishing days spent on the high seas
                                                  subject to the requirements of the PRA,                 requirements of § 300.341 must be                     and in the U.S. EEZ in each calendar
                                                  unless that collection of information                   maintained and reported in the manner                 year using data submitted in logbooks
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                                                  displays a currently valid OMB control                  specified in § 300.341(a).                            and other available information. After
                                                  number.                                                 *     *      *    *     *                             NMFS determines that a limit in a
                                                                                                            (g) Daily purse seine fishing effort                calendar year is expected to be reached
                                                  List of Subjects in 50 CFR Part 300
                                                                                                          reports. If directed by NMFS, the owner               by a specific future date, and at least
                                                    Administrative practice and                           or operator of any fishing vessel of the              seven calendar days in advance of the
                                                  procedure, Fish, Fisheries, Fishing,                    United States equipped with purse seine               closure date, NMFS will publish a
                                                  Marine resources, Reporting and                         gear must report to NMFS, for the                     notice in the Federal Register
                                                  recordkeeping requirements, Treaties.                   period and in the format and manner                   announcing that the purse seine fishery


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                                                                           Federal Register / Vol. 83, No. 91 / Thursday, May 10, 2018 / Proposed Rules                                                 21761

                                                  in the area where the limit is expected                   (iv) Repair, clean, maintain, or                      (3) Activating FADs for purse seine
                                                  to be reached will be closed starting on                otherwise service a FAD, including any                vessels. (i) A vessel owner, operator, or
                                                  that specific future date and will remain               electronic equipment used in                          crew of a fishing vessel of the United
                                                  closed until the end of the calendar                    association with a FAD, in the water or               States equipped with purse seine gear
                                                  year.                                                   on a vessel while at sea, except that:                shall turn on the tracking equipment of
                                                     (4) Once a fishery closure is                          (A) A FAD may be inspected and                      an active FAD while the FAD is onboard
                                                  announced pursuant to paragraph (a)(3)                  handled as needed to identify the FAD,                the vessel and before it is deployed in
                                                  of this section, fishing vessels of the                 identify and release incidentally                     the water.
                                                  United States equipped with purse seine                 captured animals, un-foul fishing gear,                 (ii) Restrictions on Active FADs for
                                                  gear may not be used to fish in the                     or prevent damage to property or risk to              purse seine vessels. U.S. vessel owners
                                                  closed area during the period specified                 human safety; and                                     and operators of a fishing vessel of the
                                                  in the Federal Register notice, except                    (B) A FAD may be removed from the                   United States equipped with purse seine
                                                  that such vessels are not prohibited                    water and if removed may be repaired,                 gear shall not have more than 350
                                                  from bunkering during a fishery closure.                cleaned, maintained, or otherwise                     drifting active FADs per vessel in the
                                                  *       *     *    *     *                              serviced, provided that it is not returned            Convention Area at any one time.
                                                     (b) * * *                                            to the water.                                         *      *     *    *     *
                                                     (1) During the periods and in the areas                (v) From a purse seine vessel or any
                                                                                                                                                                ■ 7. In § 300.224, revise paragraph (a)(1)
                                                  specified in paragraph (b)(2) of this                   associated skiffs, other watercraft or
                                                                                                                                                                and remove paragraph (a)(2) to read as
                                                  section, owners, operators, and crew of                 equipment, do any of the following,
                                                                                                                                                                follows:
                                                  fishing vessels of the United States                    except in emergencies as needed to
                                                  equipped with purse seine gear shall not                prevent human injury or the loss of                   § 300.224   Longline fishing restrictions.
                                                  do any of the activities described below                human life, the loss of the purse seine                 (a) * * *
                                                  in the Convention Area in the area                      vessel, skiffs, watercraft or aircraft, or
                                                                                                                                                                  (1) There is a limit of 3,554 metric
                                                  between 20° N latitude and 20° S                        environmental damage:
                                                                                                                                                                tons of bigeye tuna per calendar year
                                                  latitude:                                                 (A) Submerge lights under water;
                                                                                                                                                                that may be captured in the Convention
                                                     (i) Set a purse seine around a FAD or                  (B) Suspend or hang lights over the
                                                                                                                                                                Area by longline gear and retained on
                                                  within one nautical mile of a FAD.                      side of the purse seine vessel, skiff,
                                                                                                                                                                board by fishing vessels of the United
                                                     (ii) Set a purse seine in a manner                   watercraft or equipment, or;
                                                                                                            (C) Direct or use lights in a manner                States.
                                                  intended to capture fish that have
                                                  aggregated in association with a FAD or                 other than as needed to illuminate the                *     *     *     *     *
                                                  a vessel, such as by setting the purse                  deck of the purse seine vessel or                     ■ 8. Revise § 300.225 to read as follows:
                                                  seine in an area from which a FAD or                    associated skiffs, watercraft or
                                                                                                                                                                § 300.225 Eastern High Seas Special
                                                  a vessel has been moved or removed                      equipment, to comply with navigational                Management Area.
                                                  within the previous eight hours, or                     requirements, and to ensure the health
                                                  setting the purse seine in an area in                   and safety of the crew.                                  The owner and operator of a fishing
                                                  which a FAD has been inspected or                         (2) The requirements of paragraph                   vessel of the United States used for
                                                  handled within the previous eight                       (b)(1) of this section shall apply:                   commercial fishing for HMS is
                                                  hours, or setting the purse seine in an                   (i) From July 1 through September 30,               prohibited from engaging in
                                                  area into which fish were drawn by a                    in each calendar year;                                transshipment in the Eastern High Seas
                                                  vessel from the vicinity of a FAD or a                    (ii) In any area of high seas, from                 Special Management Area.
                                                  vessel.                                                 November 1 through December 31, in                    [FR Doc. 2018–09896 Filed 5–9–18; 8:45 am]
                                                     (iii) Deploy a FAD into the water.                   each calendar year.                                   BILLING CODE 3510–22–P
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Document Created: 2018-11-02 09:47:22
Document Modified: 2018-11-02 09:47:22
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule; request for comments.
DatesComments on the proposed rule must be submitted in writing by May 25, 2018.
ContactRini Ghosh, NMFS PIRO, 808-725-5033.
FR Citation83 FR 21748 
RIN Number0648-BH77
CFR AssociatedAdministrative Practice and Procedure; Fish; Fisheries; Fishing; Marine Resources; Reporting and Recordkeeping Requirements and Treaties

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