Proposed Rule2022-19457
International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Fishing Restrictions in Purse Seine Fisheries and 2022 Longline Bigeye Tuna Catch Limit
Primary source
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Published
September 12, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
This proposed rule would modify existing limits on fishing effort by U.S. purse seine vessels in the U.S. exclusive economic zone (EEZ) and on the high seas between the latitudes of 20[deg] N and 20[deg] S, in the area of application of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention). In addition, this proposed rule would adjust the 2022 bigeye tuna catch limit in the area of application of the Convention (Convention Area) for U.S. longline commercial fishing vessels to 3,358 metric tons (mt), due to an overage of the 2021 catch limit. The proposed rule would clarify that adjustments to the purse seine fishing effort limits or longline bigeye tuna catch limits could occur each year, due to any overage of the prior year's limit. This proposed rule would also modify the following: the process for closing the fishery once NMFS expects the effort limits will be reached; the process for obtaining daily purse seine fishing effort reports; and the process for adjusting established annual catch and effort limits in the Convention Area. This action is necessary for the United States to implement provisions of a conservation and management measure adopted by the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC or Commission) and to satisfy the obligations of the United States under the Convention, to which it is a Contracting Party. NMFS is seeking comments on this proposed rule and will respond to those comments in a subsequent final rule.
Full Text
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<title>Federal Register, Volume 87 Issue 175 (Monday, September 12, 2022)</title>
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[Federal Register Volume 87, Number 175 (Monday, September 12, 2022)]
[Proposed Rules]
[Pages 55768-55778]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-19457]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 220831-0179]
RIN 0648-BL25
International Fisheries; Western and Central Pacific Fisheries
for Highly Migratory Species; Fishing Restrictions in Purse Seine
Fisheries and 2022 Longline Bigeye Tuna Catch Limit
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: This proposed rule would modify existing limits on fishing
effort by U.S. purse seine vessels in the U.S. exclusive economic zone
(EEZ) and on the high seas between the latitudes of 20[deg] N and
20[deg] S, in the area of application of the Convention on the
Conservation and Management of Highly Migratory Fish Stocks in the
Western and Central Pacific Ocean (Convention). In addition, this
proposed rule would adjust the 2022 bigeye tuna catch limit in the area
of application of the Convention (Convention Area) for U.S. longline
commercial fishing vessels to 3,358 metric tons (mt), due to an overage
of the 2021 catch limit. The proposed rule would clarify that
adjustments to the purse seine fishing effort limits or longline bigeye
tuna catch limits could occur each year, due to any overage of the
prior year's limit. This proposed rule would also modify the following:
the process for closing the fishery once NMFS expects the effort limits
will be reached; the process for obtaining daily purse seine fishing
effort reports; and the process for adjusting established annual catch
and effort limits in the Convention Area. This action is necessary for
the United States to implement provisions of a conservation and
management measure adopted by the Commission for the Conservation and
Management of Highly Migratory Fish Stocks in the Western and Central
Pacific Ocean (WCPFC or Commission) and to satisfy the obligations of
the United States under the Convention, to which it is a Contracting
Party. NMFS is seeking comments on this proposed rule and will respond
to those comments in a subsequent final rule.
DATES: Comments on the proposed rule must be submitted in writing by
October 3, 2022.
ADDRESSES: You may submit comments on the proposed rule and the
regulatory impact review (RIR) prepared for the proposed rule,
identified by NOAA-NMFS-2022-0082 by any of the following methods:
<bullet> Electronic submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and enter NOAA-NMFS-2022-0082 in the Search box.
Click on the ``Comment'' icon, complete the required fields, and enter
or attach your comments.
<bullet> Mail: Submit written comments to Sarah Malloy, Acting
Regional Administrator, NMFS, Pacific Islands Regional Office (PIRO),
1845 Wasp Blvd., Building 176, Honolulu, HI 96818.
<bullet> Fax: (808) 725-5215; Attn: Sarah Malloy.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
<a href="http://www.regulations.gov">www.regulations.gov</a> 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).
Copies of the RIR and the 2015 programmatic environmental
assessment (PEA), 2021 supplemental environmental assessment, and 2022
Supplemental Information Report prepared for National Environmental
Policy Act (NEPA) purposes are available at <a href="http://www.regulations.gov">www.regulations.gov</a> or may
be obtained from Sarah Malloy, Acting Regional Administrator, NMFS PIRO
(see address above).
FOR FURTHER INFORMATION CONTACT: Rini Ghosh, NMFS PIRO, 808-725-5033.
SUPPLEMENTARY INFORMATION:
Background on the Convention
The Convention is concerned with the conservation and management of
highly migratory species (HMS) and the management of fisheries for HMS.
The objective of the Convention is to ensure, through effective
management, the long-term conservation and sustainable use of HMS in
the western and central Pacific Ocean (WCPO). To accomplish this
objective, the Convention
[[Page 55769]]
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 are
Participating Territories.
As a Contracting Party to the Convention and a Member of the
Commission, the United States implements, as appropriate, conservation
and management measures adopted by the Commission and other decisions
of the Commission. The Western and Central Pacific Fisheries Convention
Implementation Act (WCPFCIA; 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 (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:
<a href="http://www.wcpfc.int/doc/convention-area-map">www.wcpfc.int/doc/convention-area-map</a>.
Background on WCPFC Decisions on Tropical Tunas and NMFS Rules
At its Fourteenth Regular Session, in December 2017, the Commission
adopted Conservation and Management Measure (CMM) 2017-01,
``Conservation and Management Measure for Bigeye, Yellowfin and
Skipjack Tuna in the Western and Central Pacific Ocean.'' CMM 2017-01
included provisions for purse seine fishing effort limits, restrictions
on the use of fish aggregating devices (FAD) for purse seine fishing
vessels, specific catch retention provisions for purse seine fishing
vessels, and longline bigeye tuna catch limits, among others. At its
Fifteenth Regular Session, in December 2018, the Commission adopted
Conservation and Management Measure (CMM) 2018-01, ``Conservation and
Management Measure for Bigeye, Yellowfin and Skipjack Tuna in the
Western and Central Pacific Ocean,'' which replaced CMM 2017-01 but
included similar provisions. CMM 2018-01 went into effect on February
13, 2019, and remained in effect until February 10, 2021. At its
Seventeenth Regular Session, in December 2020, the Commission adopted
CMM 2020-01, ``Conservation and Management Measure for Bigeye,
Yellowfin and Skipjack Tuna in the Western and Central Pacific Ocean,''
which are identical to those of 2018-01, and were in effect until
February 15, 2022. At its Eighteenth Regular Session, in December 2021,
the Commission adopted CMM 2021-01, ``Conservation and Management
Measure for Bigeye, Yellowfin and Skipjack Tuna in the Western and
Central Pacific Ocean,'' which is effective until February 15, 2024.
These and other CMMs are available at: <a href="http://www.wcpfc.int/conservation-and-management-measures">www.wcpfc.int/conservation-and-management-measures</a>. NMFS has implemented through other rulemakings the
other relevant provisions of CMM 2021-01.\1\ The previous rules
pertinent to the measure's purse seine fishing effort limits and
longline bigeye tuna catch limits are described below.
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\1\ NMFS has undertaken a rulemaking to implement the provisions
on non-entangling fish aggregating devices (FADs) included in CMM
2018-01 (see 86 FR 55790; published October 7, 2021). NMFS plans to
undertake a separate rulemaking to implement the new non-entangling
FAD provisions included in CMM 2021-01.
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Purse Seine Fishing Effort Limits
By interim final rule published in the Federal Register on July 31,
2019, NMFS implemented CMM 2018-01's provisions regarding the limits on
fishing effort by U.S. purse seine vessels in the U.S. EEZ and on the
high seas between the latitudes of 20[deg] N and 20[deg] S in the
Convention Area (see 84 FR 37145; hereafter 2019 interim final rule).
In that rule, NMFS established a combined limit on fishing effort by
U.S. purse seine vessels in the Effort Limit Area for Purse Seine (or
ELAPS, which comprises the areas of the high seas and U.S. EEZ between
20[deg] N latitude and 20[deg] S latitude in the Convention Area) of
1,828 fishing days \2\ per year for 2020 and subsequent years. These
regulations are in effect until they are amended, replaced, or repealed
(see 50 CFR 300.223(a)).
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\2\ Fishing day means, for fishing vessels equipped with purse
seine gear, any day in which a fishing vessel 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 (50 CFR 300.211).
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CMM 2021-01 and its predecessor CMMs include language that requires
any overage of an annual purse seine fishing effort limit to be
deducted from the limit for the following year. As stated in the 2019
interim final rule, NMFS combined the purse seine fishing effort limits
for the U.S. EEZ and the high seas, consistent with previous
rulemakings. For 2019, the interim final rule established a limit of
1,616 fishing days (558 fishing days from the U.S. EEZ limit plus 1,270
days from the high seas limit less the 212 fishing day overage of the
2018 high seas limit) for the ELAPS. For 2020 and subsequent years, the
2019 interim final rule established a limit of 1,828 fishing days per
calendar year for the ELAPS.
In 2020, the U.S. purse seine fleet used 126 fishing days in the
U.S. EEZ and 1,659 fishing days in the high seas, and in 2021, the
fleet used 118 fishing days in the U.S. EEZ and 733 fishing days in the
high seas. Thus, the fleet did not exceed the ELAPS limit established
by NMFS or the WCPFC-specified U.S. EEZ limit in either 2020 or 2021.
However, in 2020, the fleet did exceed the WCPFC-specified high seas
fishing day limit by 329 fishing days. Thus, the WCPFC-specified
fishing day limit for U.S. purse seine vessels on the high seas in 2021
was 1,270 fishing days minus the 329 fishing day overage, or 881
fishing days. As stated, the U.S. purse seine fleet used 773 fishing
days on the high seas in 2021--fewer fishing days than 881 fishing
days.
NMFS is issuing this proposed rule to amend the existing
regulations to establish separate purse seine fishing effort limits for
the U.S. EEZ and for the high seas. The limit for the U.S. EEZ
established by the Commission in CMM 2021-01 is 558 fishing days per
year. The limit for the high seas established by the Commission in CMM
2021-01 is 1,270 fishing days per year. NMFS has established combined
limits for the ELAPS in previous years to provide increased operational
flexibility to the U.S. purse seine fleet fishing in the WCPO. In the
past, NMFS combined the limits because it provided for operational
flexibility while having the same overall impact on the stock. However,
other WCPFC members have vigorously objected to the U.S. approach, and
NMFS acknowledges that the plain text of the CMM establishes separate
U.S. EEZ and high seas limits. NMFS also notes that there are
significantly fewer licensed U.S. vessels operating under these limits,
reducing
[[Page 55770]]
the risk that separate limits will be exceeded. Without necessarily
conceding that the CMM prohibits a member's discretion to enforce a
combined limit provided that the total amount harvested does not exceed
the sum of the EEZ and high seas limits, NMFS declines to depart from
the plain language of the CMM. Accordingly, NMFS proposes to establish
separate U.S. EEZ and high seas limits. NMFS would implement the limits
in this proposed rule to remain effective until they are replaced or
amended.
NMFS is also implementing the overage provision in CMM 2021-01 by
including specific regulatory language indicating that NMFS would
adjust the annual U.S. EEZ and high seas purse seine fishing effort
limits each year to account for any overage of the limits in the
previous year.
Longline Bigeye Tuna Catch Limits
By final rule published in the Federal Register on July 18, 2018
(83 FR 33851), NMFS implemented the longline bigeye tuna catch limit
specified in CMM 2017-01 for U.S. commercial fishing vessels fishing in
the Convention Area. The limit is 3,554 mt of bigeye tuna per year for
longline fishing vessels of the United States (see 50 CFR 300.224(a)).
The limit has remained the same in the more recent WCPFC decisions on
tropical tunas, and is the same under the tropical tunas decision
currently in effect--CMM 2021-01. Under WCPFC decisions on tropical
tunas, if the limit is exceeded in a given year, the following year's
limit must account for that overage (see CMM 2021-01 at Paragraph 37).
The 2021 U.S. longline bigeye tuna catch in the Convention Area was
3,750 mt or 196 mt over the catch limit. Thus, under this proposed
rule, the 2022 U.S longline bigeye tuna catch limit in the Convention
Area would be adjusted to 3,358 mt. The limit for 2023 and future years
would be maintained at 3,554 mt. However, NMFS is also implementing the
overage provision in CMM 2021-01 by including specific regulatory
language indicating that NMFS would adjust the annual limit in each
year to account for any overage of the previous year's limit.
Background on Other Elements of This Rule
Process for Announcing Purse Seine Fishery Closure
Currently, NMFS estimates the number of fishing days spent on the
high seas and in the U.S. EEZ by the U.S. purse seine fleet in each
calendar year using logbooks and other available information. If NMFS
determines that the fishing day limit is going to be reached in any
given year, NMFS will issue a closure notice and U.S. purse seine
vessels will be prohibited from fishing in those areas for the
remainder of the calendar year. Existing regulations under 50 CFR
300.223(a) establish that NMFS will publish the closure notice in the
Federal Register at least seven calendar days in advance of the closure
date. This proposed rule would modify the existing regulations.
This proposed rule would amend the existing regulations to remove
the requirement for NMFS to publish the fishery closure notice in the
Federal Register seven days in advance of a closure. Instead, NMFS
would publish the annual limits and estimates of the fishing effort on
a NMFS web page on a periodic basis, and use the web page as well as
direct email communication with vessel owners to provide notification
of a fishery closure. NMFS would publish a notification of the fishery
closure in the Federal Register as soon as possible. The details of
this element of the proposed rule are included in the description of
the proposed action section below. By reducing the administrative time
necessary to publish in the Federal Register 7 days in advance of a
closure and the specific time needed for advance notice to industry,
NMFS would be able to more closely align the closure date to the date
the limit is actually reached, thereby reducing the magnitude of
overages (in the case of exceeding the limit upon the closure date) and
underages (in the case of not reaching the limit upon the closure
date).
As stated in existing regulations at 50 CFR 300.223(a)(4), starting
on the announced closure date, and for the remainder of calendar year,
it would be prohibited for U.S. purse seine vessels to fish in the U.S.
EEZ or the high seas, except that such vessels would not be prohibited
from bunkering during the closure. This proposed rule would not affect
the prohibitions in place once the U.S. EEZ or high seas is closed.
Daily Purse Seine Fishing Effort Reports
The regulations at 50 CFR 300.218(g) states as follows: 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, in a
specified format and manner, the activity of the vessel in the
Convention Area \3\ (e.g., setting, transiting, searching), location
and type of set, if a set was made during that day. NMFS has been
directing vessel owners or operators to provide these daily purse seine
fishing effort reports for a number of years in order to collect data
to better track purse seine fishing effort limits. Because NMFS
believes that these reports provide valuable information on purse seine
fishing effort, NMFS is proposing to require vessel owners/operators to
provide daily fishing effort reports (instead of only when directed by
NMFS). However, the current directive to provide these reports requires
vessel owners and operators to provide these reports continually, so in
practice, this element of the rule would not affect what vessel owners
and operators are currently doing.
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\3\ This requirement does not apply to the area of overlapping
jurisdiction between the WCPFC and the Inter-American Tropical Tuna
Commission.
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Use of Framework Process To Adjust Catch and Effort Limits
As discussed above, NMFS is implementing the overage provisions of
CMM 2021-01 for the purse seine fishing effort limits and the longline
bigeye tuna catch limits in the regulations at 50 CFR 300.223(a) and 50
CFR 300.224(a), respectively. NMFS would adjust these limits downward
in a given year to account for overages of the prior year's limits. The
regulations at 50 CFR 300.227 set forth a framework process through
which NMFS may specify particular WCPFC catch and effort limits on an
annual basis. Under the process, NMFS may publish a notice of the catch
or effort limit in the Federal Register for public comment instead of
modifying existing codified regulations or issuing new regulations,
which allows NMFS to implement such limits more quickly. Limits
established under that process must remain in effect for less than one
year. Under this proposed rule, NMFS would modify the regulations at 50
CFR 300.227 so that adjustments to codified catch or fishing effort
limits in the Convention Area on an annual basis would be made through
the framework process specified in those regulations. NMFS would also
clarify that limits established through that framework process must
remain in effect for less than one year. This modification would allow
NMFS to adjust existing catch and effort limits on an annual basis to
account for overages of such limits in prior years.
The Action
This proposed rule includes the following elements: (1)
modification of purse seine fishing effort limits; (2) adjustment to
the 2022 longline bigeye tuna catch limits; (3) modification of the
process for closing the purse seine fishery once an effort limit is
reached; (4) modification of the purse seine daily
[[Page 55771]]
fishing effort reporting requirements, and (5) modification of the
regulations at 50 CFR 300.227 to include annual adjustments to existing
catch and effort limits.
Purse Seine Fishing Effort Limits
This proposed rule would establish a limit of 558 fishing days for
the U.S. EEZ and 1,270 fishing days for the high seas for 2022 and
subsequent years. These limits are subject to adjustment under the
procedures in 300.227(f) for any overage of a previous year's limits.
2022 Longline Bigeye Tuna Catch Limit
This proposed rule would adjust the longline bigeye tuna catch
limits for 2022 to 3,358 mt. The limit for 2023 and future years would
remain at 3,554 mt. That limit is subject to adjustment under the
procedures in 200.227(f) for any overage of a previous year's limit.
Purse Seine Fishery Closure Procedure
This proposed rule would amend the existing regulations at 50 CFR
300.223(a)(3) to remove the requirement for NMFS to publish the fishery
closure notice in the Federal Register 7 days in advance of a closure.
NMFS intends to publish the annual limits and estimates of the fishing
effort expended on a NMFS website and provide updates on a periodic
basis. Under this proposed rule, once NMFS determines that a limit is
expected to be reached, NMFS would post the notice on a NMFS web page
\4\ announcing the fishery closure date and would also email notice of
the closure date to affected vessel owners reducing the processing time
for announcing the closure. NMFS also would publish the closure notice
in the Federal Register, as soon as practicable. The closure would be
effective upon the earlier of either (1) receipt by email of such
notice, or (2) publication in the Federal Register.
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\4\ See <a href="https://www.fisheries.noaa.gov/pacific-islands/commercial-fishing/fishing-effort-limits-purse-seine-western-and-central-pacific-ocean">https://www.fisheries.noaa.gov/pacific-islands/commercial-fishing/fishing-effort-limits-purse-seine-western-and-central-pacific-ocean</a>.
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As stated in existing regulations at 50 CFR 300.223(a)(4), starting
on the announced closure date, and for the remainder of calendar year,
it would be prohibited for U.S. purse seine vessels to fish in the U.S.
EEZ or the high seas, except that such vessels would not be prohibited
from bunkering during the closure. This proposed rule would not affect
the prohibitions in place once the U.S. EEZ or high seas is closed.
Changes to Daily Purse Seine Fishing Effort Reporting Requirements
As described above, under this proposed rule, NMFS proposes to
modify the language in 50 CFR 300.218(g) so that the daily purse seine
fishing effort reporting would be required. However, the current
directive to provide these reports requires vessel owners and operators
to provide these reports continually, so in practice, this element of
the rule would not affect what vessel owners and operators are
currently doing.
Changes to the Regulations at 50 CFR 300.227
Under this proposed rule, NMFS would modify the regulations at 50
CFR 300.227 so that the framework process to issue catch and effort
limits would be used to adjust codified catch and effort limits that
implement WCPFC decisions, as appropriate. Under the process, NMFS
would publish a notice of the adjusted catch or effort limit in the
Federal Register for public comment instead of modifying existing
codified regulations or issuing new regulations. NMFS would also modify
the regulations at 50 CFR 300.227 to clarify that any limits
established under the framework process must remain in effect for less
than one year.
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.
Coastal Zone Management Act (CZMA)
NMFS determined that implementation of the purse seine fishing
effort limits, modifications to the process for closing the fishery
once an effort limit is reached, and modifications to the process
related to collecting daily purse seine fishing effort reports are
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, American Samoa, CNMI and
Guam were submitted on March 23, 2022, for review by the responsible
state and territorial agencies under section 307 of the CZMA.
The state of Hawaii responded by letter dated March 28, 2022, that
for this particular proposal, because the U.S. WCPO purse seine fishery
operates outside of the jurisdiction of Hawaii CZM Program enforceable
policies, it would not be responding to the consistency determination.
In addition, the state of Hawaii agreed to an alternative Federal
consistency notification schedule that ended on the date of the March
28, 2022, letter. CNMI provided concurrence with the consistency
determination on April 28, 2022.
NMFS determined that the U.S. longline bigeye tuna catch limit of
3,554 mt was consistent to the maximum extent practicable with the
enforceable policies of the approved coastal management program of
American Samoa, CNMI, Guam, and the State of Hawaii in 2018 when it
established this limit (83 FR 33851; July 18, 2018). NMFS received no
objections from the state/territorial agencies on this determination.
Because the adjustment to the limit under this proposed rule would not
lead to any new effects on coastal areas or resources than what were
evaluated in the 2018 consistency determinations, no new determinations
have been prepared for this element of the proposed rule.
Modifications to the framework process in the regulations at 50 CFR
300.227 would be administrative in nature and not expected to cause any
effects on coastal areas or resources.
Executive Order 12866
This proposed rule has been determined to be not significant for
purposes of 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, and the legal
basis for this action are contained in the SUMMARY section of the
preamble. The analysis follows:
Estimated Number of Small Entities Affected
For RFA purposes only, NMFS has established a small business size
standard for businesses, including their affiliates, whose primary
industry is commercial fishing (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
[[Page 55772]]
fisheries of American Samoa, CNMI, or Guam) and purse seine vessels.
The estimated number of affected fishing vessels is 151 longline and 15
purse seine vessels, and is based on the number of vessels with those
vessel types that hold WCPFC Area Endorsements, which are required to
fish on the high seas of the Convention Area, as of May 2, 2022.
Based on (limited) financial information about the affected fishing
fleet, and using individual vessels as proxies for individual
businesses, NMFS believes that all of the affected longline vessels and
80 percent 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 2019-2021 reveals that
average annual revenue among vessels in the fleet was about $8 million
(NMFS unpublished data combined with price data from <a href="https://www.ffa.int/node/425">https://www.ffa.int/node/425</a> and <a href="https://investor.thaiunion.com/raw_material.html">https://investor.thaiunion.com/raw_material.html</a> accessed on March 23, 2022), and 12 participating
vessels qualified as small entities, with estimated vessel revenue of
less than $11 million (based on the average revenue across the most
recent three years for which data is available).
Recordkeeping, Reporting, and Other Compliance Requirements
The elements of this proposed rule are described earlier in the
preamble. The classes of small entities subject to the requirements and
the types of professional skills necessary to fulfill the requirements
are listed below for each element:
(1) Purse Seine Fishing Effort Limits
There would be annual limits of 1,270 and 558 fishing days on the
high seas and in the U.S. EEZ, respectively, in the Convention Area.
Fulfillment of this element's requirements is not expected to
necessitate 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 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 year, 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 result in 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.
From 2009 through 2021, no more than 41 percent of the proposed
limit of 558 fishing days was ever used in the U.S. EEZ. This history
suggests a relatively low likelihood of the proposed EEZ limit being
reached in a given year. Furthermore, in 2018, when separate limits
were established for the EEZ and high seas, fishing day usage in the
U.S. EEZ declined, but did not differ significantly from previous
years. Approximately 60 percent of the fleet is authorized to fish in
the U.S. EEZ. Six of the 13 vessels currently licensed under the South
Pacific Tuna Treaty (SPTT) \5\ have fishery endorsements on their U.S.
Coast Guard Certificates of Documentation, which are required to fish
in the U.S. EEZ, and both of the other two purse seine vessels that
hold WCPFC Area Endorsements but do not have South Pacific Tuna Treaty
licenses have fishery endorsements. With a separate limit for the U.S.
EEZ, these eight vessels of the fleet could take advantage of fishing
in the U.S. EEZ more than they have in the past if the high seas are
closed to fishing in a given year.
---------------------------------------------------------------------------
\5\ 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 effort in the high seas from 2009 through 2021, between
33 and 145 percent of the proposed limit of 1,270 fishing days was
used, and at least 100 percent was used in seven of the thirteen years.
In 3 years, 2015, 2016, and 2019 the high seas and U.S EEZ was closed
for part of the year (from June 15 to December 31 in 2015, from
September 2 to December 31 in 2016, and from October 9-November 28 and
from December 9 to December 31 in 2019) and in 2018, the high seas was
closed for part of the year (from September 18 to December 31), so more
fishing effort might have occurred in those 4 years were there no
limits. In the years that both the high seas and U.S. EEZ were closed,
it is possible that some or all of any additional fishing effort might
have occurred in the U.S. EEZ rather than on the high seas. Given that
the fleet generally uses far fewer fishing days in the U.S. EEZ, it is
more likely that most or all of any additional effort would have
occurred on the high seas instead of in the U.S. EEZ. This history
suggests a substantial likelihood of the proposed high seas limit being
reached in a given year. However, the fleet has undergone a steep
reduction in size in recent years, and is currently at 15 vessels, a
level that is less than half its 2019 size of 33 vessels. NMFS believes
the vessels that were previously in the fleet reflagged to other
nations for business reasons. This reduction in fleet size increases
the number of fishing days available on the high seas for the remaining
vessels, and could reduce the likelihood of the proposed high seas
limit being reached in any a given year. In 2021, 18 purse seine
vessels fished in the Convention Area, and fishing effort in the high
seas was 773 fishing days, well below the proposed separate high seas
limit of 1,270 fishing days, suggesting a lower likelihood of the
proposed limit being reached in any a given year. However, the separate
limits that would be implemented under this proposed rule would remove
the operational flexibility provided under the combined limits
currently in place and increase the possibility of a limit being
reached or reached earlier in the year.
Two factors could have a substantial influence on the amount of
fishing effort in the U.S. EEZ and on the high seas in a given year:
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 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 eastern Pacific Ocean (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 SPTT 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 year, so
[[Page 55773]]
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.
Regarding 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, from
2001-2021.
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 U.S. EEZ and high seas in those years. As of March
10, 2022, La Ni[ntilde]a conditions were present, and the National
Weather Service forecasts that La Nina will continue with about a 50
percent probability during June--August 2022, with a 40-50% chance of
La Nina or ENSO-neutral conditions thereafter. Thus ENSO conditions
might have a negative influence on fishing in the U.S. EEZ and the high
seas in 2022. The influence of ENSO conditions on fishing effort in
future years cannot be predicted with any certainty.
Another potentially important factor is that the U.S. 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 high seas or the U.S. EEZ than they would if there were no
limits or if there were a combined U.S. EEZ and high seas limit. On the
one hand, any such race-to-fish effect might be reflected in the
history of fishing in the high seas and U.S. EEZ, 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 given year, 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 through impacts to the canneries and vessel
support companies and a connection between U.S. purse seine vessels and
the broader American Samoa economy. If there was a closure of the U.S.
EEZ or high seas in the WCPO, it is likely there would be impacts to
the American Samoa economy though the magnitude would depend on the
length of the closure, and whether both or just one of the areas was
closed to fishing.
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 8, including 6 vessels with SPTT licenses and two additional
vessels 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 PIP 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 2021,
there were 13 purse seine vessels in the WCPO fleet that are also
listed on the Inter-American Tropical Tuna Commission (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 active on the IATTC Regional
Vessel Register 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, 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 (87 FR
40731, July 8, 2022) that requires purse seine vessels to choose
between two 72-day EPO fishing prohibition periods each year: July 29-
October 8 or November 9-January 19. 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.
Not fishing at all during a closure of the U.S. EEZ or high seas
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,
[[Page 55774]]
to give an indication of the magnitude of possible economic impacts to
the fleet and an upper bound of those impacts, information on revenue
per day is provided here.
The most recent 3 years for which catch estimates for the U.S. WCPO
purse seine fleet are available are 2019-2021. Those estimates,
adjusted to an indicative fleet size of 15 vessels, equate to annual
average catches of skipjack tuna, yellowfin tuna, and bigeye tuna of
68,818 mt, 8,737 mt, and 6,087 mt, respectively, or 83,641 mt in total.
Applying the 2020 Bangkok cannery price of $1,359 per mt for skipjack
tuna and bigeye tuna and a 2019 Bangkok cannery price of $1,682 mt for
yellowfin tuna (FFA 2020), the value of annual fleet-wide catches at
2019-2021 average levels would be about $116 million. It should be
noted that cannery prices are fairly volatile; for example, cannery
prices in 2017 were substantially higher than prices during the
previous three years.
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. 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.
(2) Longline Bigeye Tuna Catch Limits
This element of the proposed rulewould not establish any new
reporting or recordkeeping requirements. The new proposed 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
3,358 mt (3,554 mt reduced by the 196 mt overage from 2021) is reached
in 2022, for the remainder of the calendar year, subject to the
exceptions specified at 50 CFR 300.224. These exceptions include the
following: bigeye tuna landed in Guam, American Samoa, or CNMI; bigeye
tuna caught by vessels with American Samoa Longline Limited Access
Permits; and bigeye tuna caught by vessels in specified fishing
agreements under 50 CFR 665.801.
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 2022 and
the restrictions on retaining, landing, and transshipping bigeye tuna
are imposed for a portion of that year. These costs cannot be projected
quantitatively with any certainty. The proposed annual limit of 3,358
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 2009-2021, when limits
were in place, there appears to be a relatively high likelihood of the
proposed limits being reached in 2022. In 2019, for example, which saw
exceptionally high catches of bigeye tuna, the limit of 3,554 mt was
estimated to have been reached by, and the fishery was closed on, July
27 (see temporary rule published July 24, 2019; 84 FR 35568). In 2020,
the limit of 3,554 mt was estimated to have been reached by September
1, 2020, and in 2021, the limit of 3,554 mt was estimated to have been
reached by September 6, 2021. Thus, if bigeye tuna catch patterns in
2022 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 2019, 2020,
or 2021, the limit would be reached in the third quarter of the year.
If the bigeye tuna limit is reached before the end of 2022 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 2022 would be 3,554 mt, the bigeye
tuna limit currently in place. Under this scenario, imposition of a
limit of 3,358 mt would result in 6 percent less bigeye tuna being
caught in 2022 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 2022 to
entities that participate exclusively in the deep-set fishery would be
approximately 6 percent less than under no action. Average annual ex-
vessel revenues (from all species) per mt of bigeye tuna caught during
2018-2020 were about $13,740/mt (in 2020 dollars, derived from the
latest available annual report on the pelagic fisheries of the western
Pacific Region (Western Pacific Regional Fishery Management Council,
2021, Annual Stock Assessment and Fishery Evaluation Report: 2020.
Honolulu, Western Pacific Fishery Management Council; <a href="https://www.wpcouncildata.org/pelagicsafereport/">https://www.wpcouncildata.org/pelagicsafereport/</a>). Applying the average ex-
vessel revenues (from all species) of $13,740 per mt of bigeye tuna
caught, the estimated reductions in ex-vessel revenue from a 196 mt
decrease in the bigeye catch limit would be approximately $14,000 for
2022 or on average a reduction of $95 per vessel.
In the shallow-set fishery, affected entities would bear limited
costs in the
[[Page 55775]]
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 EPO, which is to the east of 150
degrees W. longitude, whichever is less. In the fourth calendar
quarters of 2019-2021, almost all shallow-setting effort took place in
the EPO, and 91 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 2019-2021, the shallow-set fishery
caught an average of 15 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 2022, the Convention Area shallow-set fishery would have
caught at that point, based on 2019-2022 data, on average, 94 percent
of its average annual bigeye tuna catches. Imposition of the landings
restriction at that point in 2022 would result in the loss of revenues
from approximately 0.9 mt (6 percent of 15 mt) of bigeye tuna, which,
based on recent ex-vessel prices, would be worth no more than $5,700.
Thus, expecting about 13 vessels to engage in the shallow-set fishery
(the annual average in 2019-2021), the average of those potentially
lost annual revenues would be no more than $436 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),
and (5) 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, because costs would likely
be similar or greater of those anticipated if the vessel chose to cease
fishing.
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 deep-set 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, since 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
[[Page 55776]]
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 27 from 2018-
2020, and was 25 in 2021. 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
2011-2021 (in 2011-2013, under section 113(a) of Pub. L. 112-55, 125
Stat. 552 et seq., the Consolidated and Further Continuing
Appropriations Act, 2012, continued by Pub. L. 113-6, 125 Stat. 603,
section 110, the 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 2015-2019 the fishery was closed but then reopened
when agreements went into effect. Agreements were also in place in 2020
and 2021. The fishery did not close in 2020, but the bigeye catch limit
was exceeded in 2021. 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 (87 FR 40731, July
8, 2022). The proposed rule would establish an annual limit of 750 mt
on the catch of bigeye tuna in the EPO by vessels at least 24m in
length per calendar year. 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). In 2017, NMFS
forecasted that the limit would be reached by September 8 and
subsequently closed the fishery (82 FR 41562). The limit was not
reached in 2018-2021.
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 limit in
2022 is 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-adopted 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, 2016, 2017, 2018, 2019, 2020 and 2021 the
proportions of the fishery's annual bigeye tuna catches that were
captured in the EPO were about 16, 27, 22, 18, 35, 35, 46, 36, 48, 42,
33, 29 and 28 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
2022--or it could lead to a more permanent change in the market (e.g.,
as
[[Page 55777]]
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 2022.
The potential economic effects identified above would vary among
individual business entities, but it is not 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 $531 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 2022 and
the terms of the agreements are such that the U.S. longline fleet is
effectively unconstrained by the catch limits).
(3) Daily Purse Seine Fishing Effort Reports
This element of the proposed rule would require submission of the
existing ``Daily purse seine fishing effort reports.'' Fulfillment of
this element's proposed requirements is not expected to necessitate any
professional skills that the vessel owners and operators do not already
possess. NMFS has intermittently directed vessel owners and operators
to provide this information since September 6, 2018. This modification
is not expected to change costs of compliance that have been previously
analyzed (see 83 FR 33851; July 18, 2018). The estimated cost and
burden of this reporting requirement is discussed further in the
Paperwork Reduction Act (PRA) section below.
(4) Purse Seine Fishery Closure Notification
This element of the proposed rule would not establish any new
reporting or recordkeeping requirements nor is it expected to change
the costs of compliance.
(5) Changes to the Regulations at 50 CFR 300.227
This element of the proposed rule would not establish any new
reporting or recordkeeping requirements nor is it expected to change
the costs of compliance.
Disproportionate Impacts
There would be no disproportionate economic impacts between small
and large entities operating vessels resulting from this rule.
Furthermore, there would be no disproportionate economic impacts based
on vessel size, gear or homeport.
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, where no action is defined as no
purse seine effort limits or bigeye tuna catch limits in place could
result in lesser adverse economic impacts than the proposed action for
affected entities, but NMFS does not prefer the no-action alternative,
because it would be inconsistent with the United States' obligations
under the Convention. Taking no action, where no action is defined as
leaving the combined purse seine fishing effort limits in place and not
adjusting the 2022 longline bigeye tuna catch limit to account for the
overage of the limit in 2021, could also result in lesser adverse
economic impacts than the proposed action for affected entities, but
NMFS believes the modifications are necessary to better fulfill the
Unites States' obligations under the Convention. Alternatives to the
proposed rule are discussed below.
1. Purse Seine Fishing Effort Limits
NMFS has established combined limits for the ELAPS in previous
years to provide increased operational flexibility to the U.S. purse
seine fleet fishing in the WCPO. Although NMFS has proposed to
establish separate U.S. EEZ and high seas limits, as discussed
throughout this document, NMFS has analyzed the environmental and
economic impacts of implementation of the combined limit in the
supporting documents issued in conjunction with this proposed rule.
NMFS invites the public to submit comments on the economic impact of
its proposal to separate the limits.
2. Longline Bigeye Tuna Catch Limits
NMFS has not identified any significant alternatives for this
element of the proposed rule, other than the two no-action alternative
described above (either no limit in place or the existing
[[Page 55778]]
limit of 3,554 mt). NMFS has considered the economic impacts of the two
no-action alternatives in the RIR being issued with this rule. As
stated above, the no-action alternatives could result in lesser adverse
economic impacts than the proposed action for affected entities,
because there would either be no limit in place or a greater limit in
place. NMFS believes implementation of the adjusted 2022 longline
bigeye tuna catch limit is necessary to better fulfill the United
States' obligations under the Convention.
Paperwork Reduction Act
NMFS previously conducted an estimate of the cost and burden of
submitting daily purse seine effort reports in the Convention Area
under Control Number 0648-0649, Transshipment Requirements under the
WCPFC. NMFS estimated that the cost and burden of submitting a daily
report would include 10 minutes maximum to complete the form and $4.07
per submission. In this proposed rule, NMFS would codify the
requirement to submit daily purse seine effort reports, instead of only
requiring them ``as directed.'' Because NMFS has been directing vessel
owners and operators to submit these daily reports, this proposed rule
would not introduce any new costs or burdens beyond what has already
been evaluated under Control Number 0648-0649.
List of Subjects in 50 CFR Part 300
Administrative practice and procedure, Fish, Fisheries, Fishing,
Marine resources, Reporting and recordkeeping requirements, Treaties.
Dated: September 2, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 300 is amended
as follows:
PART 300--INTERNATIONAL FISHERIES REGULATIONS
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.
Sec. 300.211 [Amended]
0
2. In Sec. 300.211, remove the definition for ``Effort Limit Area for
Purse Seine, or ELAPS''.
0
3. In Sec. 300.218, revise paragraph (g) to read as follows:
Sec. 300.218 Reporting and recordkeeping requirements.
* * * * *
(g) Daily purse seine fishing effort reports. The owner or operator
of any fishing vessel of the United States equipped with purse seine
gear must report to NMFS within 24 hours of the end of each day that
the vessel is at sea in the Convention Area, except for within the
Overlap Area, the activity of the vessel (e.g., setting, transiting,
searching), location and type of set, if a set was made during that
day. The report must be made in the format specified by the Pacific
Islands Regional Administrator.
* * * * *
0
4. Amend Sec. 300.223 by removing and reserving paragraph (a)(1), and
revising paragraphs (a)(2), and (3) to read as follows:
Sec. 300.223 Purse seine fishing restrictions.
* * * * *
(a) * * *
(1) [Reserved]
(2) There is a limit of 558 fishing days in the EEZ and 1,270
fishing days on the high seas per calendar year. These limits are
subject to adjustment if exceeded in the previous year. NMFS will use
the procedures for specifying limits set forth at Sec. 300.227(f) to
account for an overage of these limits in the following year's limits,
as appropriate.
(3) NMFS will determine the number of fishing days spent in the EEZ
and on the high seas in each calendar year using data submitted in
logbooks and other available information. NMFS will publish the annual
limits and estimates of the fishing effort on the following web page
<a href="https://www.fisheries.noaa.gov/pacific-islands/commercial-fishing/fishing-effort-limits-purse-seine-western-and-central-pacific-ocean">https://www.fisheries.noaa.gov/pacific-islands/commercial-fishing/fishing-effort-limits-purse-seine-western-and-central-pacific-ocean</a> on
a periodic basis. After NMFS determines that a limit in a calendar year
is expected to be reached by a specific future date, NMFS will post a
notice on the web page, announcing that the purse seine fishery in the
area where the limit is expected to be reached will be closed and will
remain closed until the end of the calendar year. NMFS will
simultaneously email letters of the fishery closure to affected vessel
owners. This action will also be published in the Federal Register as
soon as practicable. The fishery closure will be effective upon the
earlier of either (1) receipt by email of such notice, or (2)
publication in the Federal Register.
* * * * *
0
5. In Sec. 300.224, revise paragraphs (a)(1), (2), and add paragraph
(a)(3) to read as follows:
Sec. 300.224 Longline fishing restrictions.
* * * * *
(a) * * *
(1) Except as modified by Sec. 300.227 or provided in Sec.
300.224(a)(2) below, 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.
(2) For calendar year 2022, the limit in paragraph (a)(1) of this
section is adjusted to 3,358 metric tons.
(3) The limits in Sec. 300.224 (a)(1) and Sec. 300.224 (a)(2) are
subject to adjustment if exceeded in the previous year. NMFS will use
the procedures for specifying limits set forth at Sec. 300.227(f) to
account for an overage of the limits in paragraphs (a)(1) or (2) of
this section in the following year's limit, as appropriate.
* * * * *
0
6. In Sec. 300.227, add paragraphs (i) and (j) to read as follows:
Sec. 300.227 Framework for catch and fishing effort limits.
* * * * *
(i) NMFS will use the procedures for specifying limits set forth at
Sec. 300.227(f) to account for an overage of the limits established in
Sec. 300.223 and Sec. 300.224 in the following year's limits, as
appropriate.
(j) The limits established through the process detailed in
paragraph (f) of this section may remain in effect for a period less
than one year.
* * * * *
[FR Doc. 2022-19457 Filed 9-9-22; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on September 12, 2022.
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