International Fisheries; Pacific Tuna Fisheries; Fishing Restrictions in the Eastern Pacific Ocean

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS proposes regulations under the Tuna Conventions Act of 1950, as amended, to implement decisions of the Inter-American Tropical Tuna Commission (IATTC). At its Eighty-fifth Meeting in June 2013, the IATTC adopted a number of resolutions, some of which require rulemaking to implement domestically in the United States. This proposed rule would implement one of these decisions: The Resolution on a Multiannual Program for the Conservation of Tuna in the Eastern Pacific Ocean during 2014-2016 (Resolution C-13-01). This proposed rule would: Extend the effective period of the current regulations in the IATTC Convention Area in 2014 through 2016; and provide purse seine owners with greater flexibility by allowing for an exemption to the closure periods due to force majeure. The existing regulations include a 500-metric ton bigeye tuna (Thunnus obesus) calendar year catch limit applicable to longline vessels greater than 24 meters in overall length and a 62-day closure period applicable each year to purse seine vessels of class size 4 to 6 (greater than 182 metric tons). The proposed rule would also include an exemption to the purse seine closures due to force majeure. Implementation of Resolution C-13-01 is necessary for the United States to satisfy its obligations as a member of the IATTC.

DATES:

Comments must be submitted in writing by February 25, 2014. A public hearing will be held from 1 p.m. to 4 p.m. PST, February 12, 2014, in Long Beach, CA.

ADDRESSES:

You may submit comments on this document, identified by NOAA-NMFS-2014-0014, by any of the following methods:

• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0014 ,, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
• Mail: Submit written comments to Celia Barroso, NMFS West Coast Region, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802. Include the identifier “NOAA-NMFS-2014-0014” in the comments.
• Public hearing: The public is welcome to attend a public hearing and offer comments on this proposed rule from 1 p.m. to 4 p.m. PST, February 12, 2014 at 501 W. Ocean Boulevard, Suite 4200, Long Beach, CA 90802. The public may also participate in the public hearing via conference line: 1-888-790-6181, passcode 33750.

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 www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), 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). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only. 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 NMFS WCR Long Beach Office and by email to OIRA_Submission@omb.eop.gov. Copies of the draft Regulatory Impact Review (RIR) and other supporting documents are available via the Federal e-Rulemaking Portal: http://www.regulations.gov,, docket NOAA-NMFS-2014-0014 or contact with the Regional Administrator, William W. Stelle, Jr., NMFS West Coast Regional Office, 7600 Sand Point Way NE., Bldg 1, Seattle, WA 98115-0070, or RegionalAdministrato. WCRHMS@noaa.gov.

FOR FURTHER INFORMATION CONTACT:

Heidi Taylor, NMFS, 562-980-4039 or Celia Barroso, NOAA/NMFS Affiliate at 562-432-1850.

SUPPLEMENTARY INFORMATION:

Background on the IATTC

The United States is a member of the IATTC, which was established under the 1949 Convention for the Establishment of an Inter-American Tropical Tuna Commission. The full text of the 1949 Convention is available at: http://www.iattc.org/PDFFiles/IATTC_convention_1949.pdf. The IATTC facilitates scientific research into, as well as conservation and management of, highly migratory species of fish in the IATTC Convention Area (defined as the waters of the Eastern Pacific Ocean (EPO)). Since 1998, conservation resolutions adopted by the IATTC have further defined the Convention Area as the area bounded by the coast of the Americas, the 50° N. and 50° S. parallels, and the 150° W. meridian. The IATTC has maintained a scientific research and fishery monitoring program for many years, and regularly assesses the status of tuna and billfish stocks in the EPO to determine appropriate catch limits and other measures deemed necessary to prevent overexploitation of these stocks and to promote sustainable fisheries. Current IATTC member countries include: Belize, Canada, China, Chinese Taipei (Taiwan), Colombia, Costa Rica, Ecuador, El Salvador, the European Union, France, Guatemala, Japan, Kiribati, the Republic of Korea, Mexico, Nicaragua, Panama, Peru, the United States, Vanuatu, and Venezuela. Bolivia, Honduras, Indonesia and the Cook Islands are cooperating non-members.

International Obligations of the United States Under the Convention

As a Contracting Party to the 1949 Convention and a member of the IATTC, the United States is legally bound to implement IATTC resolutions. The Tuna Conventions Act (16 U.S.C. sections 951-962 and 971 et seq.) directs the Secretary of Commerce, after approval by the Secretary of State, to promulgate such regulations as may be necessary to implement resolutions adopted by the IATTC. The Secretary's authority to promulgate such regulations has been delegated to NMFS.

IATTC Tuna Conservation and Management Measures

At its 85th Meeting, in June 2013, the IATTC by consensus adopted the Multiannual Program for the Conservation of Tuna in the Eastern Pacific Ocean during 2014-2016 (Resolution C-13-01). Resolution C-13-01 is very similar to the tuna conservation measure adopted by the IATTC in 2011 (Resolution C-11-01, Resolution on a Multiannual Program for the Conservation of Tuna in the Eastern Pacific Ocean in 2011-2013). Both resolutions include a bigeye tuna annual catch limit applicable to longline vessels greater than 24 meters in overall length, a time/area closures, and a full catch retention program applicable to purse seine vessels greater than 182 metric tons in carrying capacity. For purposes of domestic implementation, NOAA treats the registered length that appears on the vessels' Coast Guard Certificate of Documentation as the “overall length.” NMFS implemented Resolution C-11-01 through regulations codified at 50 CFR part 300, subpart C (see final rule 76 FR 68332, November 4, 2011). Resolution C-13-01 includes exemptions when a purse seine vessel is rendered unable to return to sea due to “force majeure” (i.e., for purposes of this Resolution this means disabled by mechanical and/or structural failure, fire, or explosion) for at least a period equivalent to the 62-day annual closure period.

The main objectives of Resolution C-13-01 are to ensure that the fishing mortality of yellowfin tuna (Thunnus albacares) does not increase and to reduce the fishing mortality of bigeye tuna in the Convention Area from 2014 through 2016. The measures are based in part on the recommendations and analysis of IATTC scientific staff, as well as the 2013 updates to stock assessments for bigeye tuna and yellowfin tuna, both completed by IATTC staff. A full assessment of yellowfin tuna is planned for 2014.

Resolution C-13-01 requires the United States to restrict catch of bigeye tuna in the longline fishery and effort in the purse seine fishery in the Convention Area in each of the years 2014, 2015, and 2016. This proposed rule would extend existing management measures so that they apply in 2014 through 2016. The measures would include the following: (1) a 500 metric ton bigeye tuna calendar year catch limit for longline vessels greater than 24 meters in overall length; and (2) time/area closures for purse seine vessels of class sizes 4 to 6 (greater than 182 metric tons carrying capacity). Resolution C-13-01 also includes provisions for 2014 through 2016 requiring purse seine vessels class sizes 4 to 6 to first retain on board, and then land all bigeye, yellowfin, and skipjack (Katsuwonus pelamis) tuna caught, except fish unfit for human consumption for reasons other than size. A single exception to this full catch retention program is on the final set of a trip, when there may be insufficient well space remaining to accommodate all of the tuna caught in that set. Resolution C-11-01 included the same catch retention provisions, which have been implemented by NMFS to apply indefinitely (see 50 CFR 300.25(e)) because NMFS expected it to be included in future IATTC tuna conservation and management resolutions. If the IATTC removes the measure in the future, NMFS will remove the regulation. Thus, further regulatory action is not needed to implement the catch retention provisions of Resolution C-13-01.

Proposed Action

Tuna Conservation Measures for 2014 Through 2016

This proposed rule would continue the purse seine closure period of 62 days in the years 2014, 2015, and 2016. Therefore, this proposed rule would prohibit purse seine vessels subject to these requirements from fishing in the Convention Area for a period of 62 days in 2014, 62 days in 2015, and 62 days in 2016. This proposed rule would also continue giving applicable purse seine vessel owners the ability to choose between the two possible closure periods for 2014, 2015, and 2016. These closures would be in one of two periods in each year as follows:

2014—29 July to 28 September, or from 18 November to 18 January 2015.

2015—29 July to 28 September, or from 18 November to 18 January 2016.

2016—29 July to 28 September, or from 18 November to 18 January 2017.

Under the proposed rule, a vessel's owner, manager, or association representative would be required to provide the West Coast Regional Administrator, via fax to (562) 980-4047 or email to RegionalAdministrator.WCRHMS@noaa.gov, by July 1 of each fishing year (2014, 2015, and 2016) with the following information: (1) name and official number of fishing vessel; (2) the closure period the vessel will adhere to in that year; and (3) the vessel owner or managing owner's name and signature. If a vessel owner fails to notify the Regional Administrator of his or her choice by the July 1 deadline, the vessel would be subject to the later closure period (November 18 to January 18 of the following calendar year) by default.

Under the proposed rule, a purse seine vessel owner could request an exemption to the 62-day closure described in the paragraph above due to force majeure, in which a vessel is rendered unable to return to sea for a period of at least 62 days. Force majeure would be defined in the proposed rule as a situation in which a vessel is disabled due to mechanical and/or structural failure, fire, or explosion. To place a request for exemption due to force majeure, the vessel operator would be required to contact the NMFS West Coast Region Sustainable Fisheries Division Assistant Regional Administrator, via email or fax, and provide evidence necessary to demonstrate that the vessel did not proceed to sea for at least 62 days and that the facts on which the request for exemption is based were due to force majeure. A request for reconsideration of initial denial of the request may be made within 10 days to the West Coast Regional Administrator. If the request is accepted, the purse seine vessel owner may observe a reduced closure period of 30 consecutive days.

The proposed rule would also continue the high seas time/area closure for tuna purse seine vessels class sizes 4 to 6 during 2014 through 2016. The area consists of the area bounded at the east and west by 96° and 110° W. longitude and bounded at the north and south by 4° N. and 3° S. latitude. The high seas time/area closure was originally adopted by the IATTC under Resolution C-09-01 and has been in place in NMFS regulations at 50 CFR 300.25(f) since 2009.

In addition, this proposed rule would extend from 2014 through 2016 the annual bigeye tuna catch limit of 500 metric tons in the Convention Area for U.S. longline vessels over 24 meters in overall length. This catch limit has been in place since 2007 in NMFS regulations at 50 CFR 300.25(b) and had never been reached until 2013; the U.S. fishery for bigeye tuna by longline vessels greater than 24 meters was closed on November 11, 2013 after NMFS forecasted that the limit was going to be reached (see 78 FR 65887, November 4, 2013 and 78 FR 70002, November 22, 2013). Between 2008 and 2012 an average of 317 metric tons (range 199 to 407 metric tons) of bigeye tuna was caught annually in the Convention Area by U.S. longline vessels greater than 24 meters in overall length. The members of the IATTC agreed to continue the bigeye tuna catch limits in the Convention Area after review and analysis of the most recent bigeye and yellowfin tuna stock assessments.

Classification

The NMFS Assistant Administrator has determined that this proposed rule is consistent with the Tuna Conventions Act and other applicable laws, subject to further consideration after public comment.

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

Pursuant to the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The rationale for the certification is as follows:

The purpose of Resolution C-13-01 is to prevent overfishing by restricting the catch of bigeye tuna in the longline fishery and to restrict fishing effort in the purse seine fishery for bigeye, yellowfin, and skipjack tuna in the Convention Area (eastern Pacific Ocean) in each of the years 2014, 2015, and 2016. Resolution C-13-01 includes provisions for a force majeure exemption to the purse seine closure periods that were first adopted in Resolution C-12-01 (Amendment to Resolution C-11-01 on Tuna Conservation) in 2012. This proposed rule would: (1) Implement a 500 metric ton calendar year catch limit on bigeye tuna caught by longline vessels over 24 meters in length in the Convention Area from 2014 through 2016; and (2) prohibit purse seine vessels of class size 4 to 6 (greater than 182 metric tons in carrying capacity) from fishing for yellowfin, bigeye, and skipjack tunas in the Convention Area for a period of 62 days in each of the years 2014, 2015, and 2016. Purse seine vessels of class size 4 (between 182 and 272 metric tons carrying capacity) would be able to make a single fishing trip of up to 30 days duration during the closed period, provided that the vessel carries an observer of the On-Board Observer Program of the Agreement on the International Dolphin Conservation Program. In the event of a force majeure (a situation in which vessels are disabled by mechanical and/or structural failure, fire, or explosion) rendering a purse seine vessel unable to proceed to sea outside of a closure period for at least 62 days (the prescribed closure period), the vessel owner may request an exemption from the closure period and if the request is accepted by the IATTC, the purse seine vessel owner may observe a reduced closure period of 30 consecutive days. This proposed rule would also close the fishery for yellowfin, bigeye, and skipjack tuna within the area of 96° and 110° W and between 4° N and 3° S to purse seine vessels of class sizes 4 to 6 from 0000 hours UTC (Coordinated Universal Time) on September 29 to 2400 hours UTC on October 29, in years 2014, 2015, and 2016.

There are only slight adjustments being made to the existing tuna conservation measures, which were implemented (see 76 FR 68332, November 4, 2011) as a result of the adoption of Resolution C-11-01 in 2011 and expire at the end of 2013. The proposed adjustments would be the following: (1) Extend the effective period of the current regulations in 2014 through 2016; and (2) provide purse seine owners with greater flexibility by allowing for an exemption to the closure periods due to force majeure. The proposed rule would extend regulations currently in place, including the 500 metric ton catch limit and 62-day closure period; because these regulations are currently in force, extending them would neither reduce the profitability of the fishery nor require any additional compliance effort or expense by affected vessels. As a result, environmental and socioeconomic impacts are expected to be minimal.

The absence of the proposed action would allow U.S. fisheries to target bigeye, yellowfin, and skipjack tunas unrestricted (except for existing permit requirements) in the Convention Area. This may contribute to overfishing or overfished conditions of tuna resources. Alternatively, the implementation of Resolution C-13-01 will result in the sharing of sustainable benefits from Pacific tuna fishery resources among the IATTC member and Cooperating non-member countries.

The Small Business Administration (SBA) revised its small business size standards for several industries in a final rule effective July 22, 2013 (see 78 FR 37398, June 20, 2013). The rule increased the size standard for Finfish Fishing from $ 4.0 to 19.0 million, Shellfish Fishing from $ 4.0 to 5.0 million, and Other Marine Fishing from $4.0 to 7.0 million. Id. at 37400 (Table 1).

NMFS has reviewed the analyses prepared for this action in light of the new size standards. The new standards could result in a few more entities being considered small. However, NMFS does not think that the new size standards affect its decision to certify this action.

The small entities that would be affected by the proposed action are purse seine vessels of class size 4 to 6 and longline vessels over 24 meters in length overall. The U.S. Small Business Administration (SBA) defines small businesses engaged in fishing as those vessels with annual revenues of or below $19 million from finfish fishing. The average revenue per vessel for the U.S. Hawaii-based longline fleet in 2011 and for the U.S. purse seine fleet in each year 2010 through 2012 was below $19 million; there is effort in the West Coast-based longline fleet, however, its revenue cannot be reported due to confidentiality concerns. Therefore, all of these vessels are considered small businesses under the RFA.

Estimates of ex-vessel revenues in the U.S. purse seine fishery in the Convention Area since 2005, which would be indicative of current conditions, are confidential and may not be publicly disclosed because of the small number of vessels in the fishery. Since 2004, an average of only two U.S. purse seine vessels class sizes 4 to 6 have made landings of catch each year in the Convention Area. From 2005 through 2008, fewer than three vessels made landings in the Convention Area, thus the landings and revenue data from these years are confidential and cannot be released. Currently there are four class size 6 vessels and no class size 5 and 4 vessels likely to be affected by the rule in the near future. Two vessels transited through the Convention Area in 2010, but did not fish. Only three and two class size 6 vessels fished tunas in Convention Area in 2011 and 2012, respectively.

In 2012, the U.S. Hawaii-based longline fleet consisted of 129 vessels permitted under the Fishery Management Plan for Pelagics in the Western Pacific Region. However, relatively few are large-scale longline vessels (vessels over 24 meters in overall length). From 2008 through 2012, 29 large-scale longline vessels, on average, annually reported catches of bigeye tuna in the Convention Area (combining shallow-sets and deep-sets). In 2011, when there were 28 large-scale longline vessels fishing in the Convention Area, the Hawaii-based longline fleet landed about 26.11 million pounds or 11,846 metric tons of pelagic species for an ex-vessel value of about $78 million. Bigeye and yellowfin tuna represented about 47 percent and eight percent of the total longline landings, respectively. The total revenue represents average gross revenue per vessel of about $604,651.

NMFS considers all entities subject to this action to be small entities as defined by the revised size standards because average annual revenue from fishing per vessel for all vessels in all fleets operating in the Convention Area has been below $19 million. Because each affected vessel is a small business, this proposed action has an equal effect on all of these small entities, and therefore will impact all these small entities in the same manner. Based on the analysis above, the proposed action, if adopted, will not have an adverse or disproportional economic impact on these small business entities. Because the proposed action would not have a significant impact on a substantial number of small entities, an Initial Regulatory Flexibility Analysis is not required and none has been prepared. NMFS solicits public comment on the analyses in light of the new size standards.

This proposed rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) that has been approved by the Office of Management and Budget (OMB) under control number 0648-0387. Public reporting burden for a request for exemption due to force majeure is estimated to average 1 hour per response (less than one response per year is expected). Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES) and by email to OIRA_Submission@ omb.eop.gov, or fax to (202) 395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a 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

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

PART 300—INTERNATIONAL FISHERIES REGULATIONS

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

Authority: 16 U.S.C. 951-961 et seq.

2. In § 300.21, revise the definition for “Regional Administrator”, and add the definitions for “Force majeure”, “Overall length”, and “Sustainable Fisheries Division (SFD) ” in alphabetical order to read as follows:

3. In § 300.25, the heading of paragraph (b) and paragraphs (b)(2) and (f) are revised to read as follows: