[Federal Register Volume 85, Number 120 (Monday, June 22, 2020)]
[Rules and Regulations]
[Pages 37376-37390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11981]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 200528-0149]
RIN 0648-BH59
International Fisheries; Eastern Pacific Tuna Fisheries; Western
and Central Pacific Fisheries for Highly Migratory Species; Area of
Overlap Between the Convention Areas of the Inter-American Tropical
Tuna Commission and the Western and Central Pacific Fisheries
Commission
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: Under authority of the Western and Central Pacific Fisheries
Convention Implementation Act (WCPFCIA) and the Tuna Conventions Act,
NMFS issues this final rule that revises the management regime for U.S.
fishing vessels that target tunas and other highly migratory fish
species (HMS) in the area of overlapping jurisdiction in the Pacific
Ocean between the Inter-American Tropical Tuna Commission (IATTC) and
the Commission for the Conservation and Management of Highly Migratory
Fish Stocks in the Western and Central Pacific Ocean (WCPFC). The rule
applies all regulations implementing IATTC resolutions in the area of
overlapping jurisdiction and some regulations implementing WCPFC
provisions. NMFS is undertaking this action based on an evaluation of
the management regime in the area of overlapping jurisdiction, in order
to satisfy the obligations of the United States as a member of the
IATTC and the WCPFC, pursuant to the authority of the Western and
Central Pacific Fisheries Convention Implementation Act (WCPFCIA) and
the Tuna Conventions Act.
DATES: This rule is effective on July 22, 2020, except for 50 CFR
300.218, which is delayed. NOAA will publish a document in the Federal
Register announcing the effective date.
[[Page 37377]]
ADDRESSES: Copies of supporting documents prepared for this final rule,
including the regulatory impact review (RIR) and the environmental
assessment (EA), as well as the proposed rule (84 FR 60040; November 7,
2019), are available via the Federal e-rulemaking Portal, at
www.regulations.gov (search for Docket ID NOAA-NMFS-2018-0049). Those
documents are also available from NMFS at the following address:
Michael D. Tosatto, Regional Administrator, NMFS, Pacific Islands
Regional Office (PIRO), 1845 Wasp Blvd., Building 176, Honolulu, HI
96818.
A final regulatory flexibility analysis (FRFA) prepared under
authority of the Regulatory Flexibility Act is included in the
Classification section of the SUPPLEMENTARY INFORMATION section of this
document.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
rule may be submitted to PIRO at the address listed above, by email to
[email protected]">OIRA_[email protected], or by fax to (202) 395-5806.
FOR FURTHER INFORMATION CONTACT: Rini Ghosh, NMFS PIRO, 808-725-5033.
SUPPLEMENTARY INFORMATION:
Background
On June 12, 2018, NMFS published an advance notice of proposed
rulemaking in the Federal Register (83 FR 27305) seeking public input
about whether it should change the management regime for fishing
vessels that target tunas and other HMS in the area of overlapping
jurisdiction in the Pacific Ocean between the IATTC and the WCPFC. On
November 7, 2019, NMFS published a proposed rule in the Federal
Register (84 FR 60040) proposing to revise that management regime. The
proposed rule was open for public comment until November 22, 2019.
This final rule is issued under the authority of the WCPFCIA (16
U.S.C. 6901 et seq.) and the Tuna Conventions Act (16 U.S.C. 951 et
seq.). The United States is a member of both IATTC and WCPFC. NMFS
implements decisions of WCPFC under the authority of the WCPFCIA and
decisions of IATTC under the authority of the Tuna Conventions Act. The
convention areas for the IATTC (IATTC Area) and WCPFC (WCPFC Area)
overlap in the Pacific Ocean waters within an area bounded by 50[deg] S
latitude, 4[deg] S latitude, 150[deg] W longitude, and 130[deg] W
longitude (``overlap area'').
This final rule changes management of the overlap area in
accordance with WCPFC and IATTC decisions (described below) regarding
the overlap area. Specifically, this final rule changes management of
the overlap area so that all NMFS regulations implementing IATTC
resolutions apply in the overlap area. NMFS regulations implementing
WCPFC conservation and management measures that place limits or
restrictions on catch, fishing effort, and bycatch mitigation no longer
apply in the overlap area, except that existing WCPFC regulations
prohibiting transshipments at sea from or to purse seine vessels
continue to apply. A few regulations implementing WCPFC conservation
and management measures, will continue to apply in the overlap area for
the reasons described below, in the section that follows Table 1.
The WCPFC and IATTC decisions addressing the overlap area (IATTC
Recommendation C-12-11, ``IATTC-WCPFC Overlap Area,'' and the WCPFC
decision documented in ``Summary Report of the Ninth Regular Session of
the Commission for the Conservation and Management of Highly Migratory
Fish Stocks in the Western and Central Pacific Ocean,'' Manila,
Philippines, 2-6 December, 2012, paragraph 80, hereafter ``WCPFC-IATTC
joint decision on the overlap area''), broadly indicate that a member
of both commissions, such as the United States, may decide and notify
both commissions which commission's conservation and management
measures it intends to apply.
In the proposed rule, NMFS proposed that regulations implementing
WCPFC measures that control fishing activity, such as purse seine
fishing restrictions, longline fishing restrictions, and bycatch
mitigation measures would no longer apply in the overlap area, and that
WCPFC management measures related to monitoring, control, and
surveillance (MCS) would continue to apply. NMFS stated in the proposed
rule that it currently implements, and would continue to implement, the
MCS measures pursuant to its obligations under the Convention on the
Conservation and Management of Highly Migratory Fish Stocks in the
Western and Central Pacific Ocean (WCPF Convention).
As described in more detail in the Comments and Responses section
below, NMFS received comments on the proposed rule expressing concern
regarding continued application of WCPFC MCS management measures in the
overlap area. In particular, U.S. purse seine industry representatives
indicated that the requirement for vessels to carry WCPFC observers in
the overlap area is unnecessary and would make fishing in the overlap
area more logistically complicated and unduly burdensome than if the
rule did not continue to apply that requirement in the overlap area. If
this requirement continues to apply, vessels would continue to need to
carry two observers (an IATTC observer and a WCPFC observer) or carry a
cross-endorsed observer \1\ when fishing the overlap area.
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\1\ A cross-endorsed observer is an observer that is ``cross-
endorsed'' pursuant to a Memorandum of Cooperation between the WCPFC
and the IATTC that specifies a process to allow the observer to meet
the observer requirements of both organizations.
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NMFS has reexamined the proposed rule and believes the following
regulations, proposed to be maintained in the overlap area in the
proposed rule, need not apply in the overlap area for the United States
to fulfill its obligations under the WCPF Convention:
Transshipment observer requirements (50 CFR 300.215(b) and
(d));
general requirements to carry WCPFC observers (50 CFR
300.215(c)(1) and (2));
transshipping, bunkering, and net sharing requirements (50
CFR 300.216(b)(2)-(3) and (c));
transshipment reporting requirements (50 CFR 300.218(b)
and (d));
discard reporting requirements (50 CFR 300.218(e));
net sharing reporting requirements (50 CFR 300.218(f));
daily purse seine fishing effort reports (50 CFR
300.218(g)); and
purse seine observer coverage (50 CFR 300.223(e)).
Therefore, this final rule removes the above WCPFC regulations, in
addition to those WCPFC regulations identified in the proposed rule,
from application in the overlap area.
Under this final rule, a few other WCPFC regulations continue to
apply in the overlap area, as explained in more detail below in the
section describing the action.
The preamble to the proposed rule provides additional information
on all relevant IATTC and WCPFC regulations, including additional
information on the regulations that previously applied in the overlap
area and the development of the proposed rule, which is not repeated
here.
The Action
This final rule changes the definition of ``IATTC Convention Area''
at 50 CFR 300.21 to include the overlap area with respect to all the
regulations at 50 CFR part 300, subpart C, with the effect that
[[Page 37378]]
all regulations at 50 CFR part 300, subpart C, now apply in the overlap
area (except in cases where particular regulations apply to more
specific areas within the IATTC Area). The requirements under the
Marine Mammal Protection Act and the Agreement on the International
Dolphin Conservation Program (AIDCP), including observer requirements
at 50 CFR 216.24(e), which already applied in the overlap area,
continue to apply under the final rule. Table 1, below, lists the
specific regulations, including citations, implementing WCPFC
management measures and IATTC management measures that apply in the
overlap area under the final rule. A detailed description of these
regulations is provided in the proposed rule preamble and below.
In addition to those IATTC regulations described in the proposed
rule, this final rule will apply several newly implemented IATTC
regulations in the overlap area. Subsequent to publication of the
proposed rule, NMFS published a final rule that expands the requirement
for vessel owners to obtain International Maritime Organization (IMO)
numbers to include smaller U.S. vessels fishing for tuna and tuna-like
species in the IATTC Area and relaxes the restrictions on retention of
incidental catch by purse seine vessels (84 FR 70040; December 20,
2019; corrected in 85 FR 8198; February 13, 2020). Under that final
rule, all purse seine vessels are required to release all billfish, ray
(except mobulid ray), dorado, and other fish species, except tuna,
tuna-like species, and fish retained for consumption aboard the vessel.
That final rule became generally effective on January 21, 2020;
however, new or revised requirements related to collection of
information, including the new IMO number requirements, are not yet in
effect. The regulations implementing this rule are found at 50 CFR part
300, subpart C, and are applicable in the overlap area.\2\
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\2\ NMFS published a proposed rule on January 24, 2020 (85 FR
4250), to implement provisions in IATTC Resolutions C-19-01
(``Amendment to Resolution C-18-05 on the Collection and Analysis of
Data on Fish Aggregating Devices (FADs)''), C-19-05 (``Amendment to
the Resolution C-16-06 Conservation Measures for Shark Species, with
Special Emphasis on the Silky Sharks (Carcharhinus Falciformis), for
the Years 2020-2021''), and C-18-07 (``Resolution on Improving
Observer Safety At Sea: Emergency Action Plan''), and AIDCP
Resolution A-18-03 (``On Improving Observer Safety At Sea: Emergency
Action Plan'').
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Under this final rule, the following regulations at 50 CFR part
300, subpart O, which implement WCPFC conservation and management
measures, no longer apply in the overlap area: \3\
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\3\ This list includes those regulations that NMFS proposed
removing from application in the overlap area under the proposed
rule, as well as the additional regulations described above that
were not included in the proposed rule.
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Transshipment observer requirements (50 CFR 300.215(b) and
(d));
general requirements to carry WCPFC observers (50 CFR
300.215(c)(1) and (c)(2));
transshipping, bunkering, and net sharing requirements (50
CFR 300.216(b)(2)-(3) and (c));
purse seine fishing effort limits (50 CFR 200.223(a));
purse seine fish aggregating device (FAD) restrictions (50
CFR 300.223(b));
purse seine catch retention requirements (50 CFR
300.223(d));
purse seine observer coverage (50 CFR 300.223(e));
purse seine sea turtle bycatch mitigation requirements (50
CFR 300.223(f));
whale shark bycatch mitigation requirements (50 CFR
300.223(g)-(h));
longline bigeye tuna catch limits (50 CFR 300.224(a));
oceanic whitetip and silky shark interaction mitigation
(50 CFR 300.226); and
reporting requirements that are associated with the
regulations listed above that would no longer apply in the overlap area
(transshipment reporting requirements at 50 CFR 300.218(b) and (d);
discard reporting requirements at 50 CFR 300.218(e); net sharing
reporting requirements at 50 CFR 300.218(f); daily purse seine fishing
effort reports at 50 CFR 300.218(g), and whale shark reporting
requirements at 50 CFR 300.218(h))
Table 1 shows the regulations that apply and no longer apply in the
overlap area under the final rule.
Table 1--Table of Regulations Under the Final Rule
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Regulations implementing WPCFC decisions Regulations implementing IATTC decisions
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Applies in Applies in
50 CFR 300 subpart O overlap area 50 CFR 300 subpart C overlap area Changed from
under final rule? or 50 CFR 216 under final rule? proposed rule
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Sec. 300.223(a) Purse seine No............... Sec. 300.25(e) Purse Yes.............. No.
fishing effort limits. seine closures.
Sec. 300.223(b) Purse seine No............... Sec. 300.28 Purse Yes.............. No.
fish aggregating devices seine FAD
(FADs). restrictions.
Sec. 300.223(d) Purse seine No............... Sec. 300.27(a) Tuna Yes.............. No.
catch retention. retention
requirements for
purse seine vessels.
Sec. 300.223(f) Purse seine No............... Sec. 300.27(c) Purse Yes.............. No.
sea turtle mitigation. seine sea turtle
handling and release.
Sec. 300.223(g)-(h) Purse No............... Sec. 300.27(g)-(h) Yes.............. No.
seine whale shark mitigation. Purse seine whale
shark restrictions
for purse seine
vessels.
Sec. 300.224 Longline fishing No............... Sec. 300.25(a) Yes.............. No.
restrictions. Longline tuna catch
limits.
Sec. 300.226 Oceanic whitetip No............... Sec. 300.27(d) Yes.............. No.
shark and silky shark. Oceanic whitetip
shark restrictions;
Sec. 300.27(e)-(f)
Silky shark
restrictions.
No comparable requirements..... N/A.............. Sec. 300.25(b) Use Yes.............. No (though not
of tender vessels. included in
description of
proposed rule).
No comparable requirements..... N/A.............. Sec. 300.25(f) Yes.............. No.
Restrictions on
fishing in proximity
to data buoys.
No comparable requirements..... N/A.............. Sec. 300.25(g) Yes.............. No.
Pacific bluefin tuna
catch limits.
No comparable requirements..... N/A.............. Sec. 300.27(b) Yes.............. No.
Release requirements
for non-tuna species
on purse seine
vessels.
No comparable requirements..... N/A.............. Sec. 300.27(i)-(j) Yes.............. No.
Mobulid ray
restrictions.
No comparable requirements..... N/A.............. Sec. 300.27(k) Shark Yes.............. No.
handling and release
requirements for
purse seine vessels.
No comparable requirements..... N/A.............. Sec. 300.27(l) Shark Yes.............. No.
line prohibition for
longline vessels.
[[Page 37379]]
Sec. 300.212 WCPFC vessel Yes.............. Sec. 300.22(b) IATTC Yes.............. No.
permit endorsements. vessel register
requirements.
Sec. 300.213 Vessel Yes.............. No comparable N/A.............. No.
information requirements for requirements.
fishing in foreign exclusive
economic zones (EEZs).
Sec. 300.214 Compliance with Yes.............. No comparable N/A.............. No.
Laws of Other Nations. requirements.
Sec. 300.215(c)(3), (c)(4), Yes.............. Sec. 216.24(e) Purse Yes.............. No.
and (c)(5) Accommodating seine observers *.
observers.
Sec. 300.215(b), (c)(1), No............... No comparable N/A.............. Yes.
(c)(2), and (d) Observers and requirements.
Transshipment observers.
Sec. 300.216(b)(1) Purse Yes.............. Sec. 300.25(c) Purse Yes.............. No.
seine transshipment at sea. seine transshipment
requirements.
Sec. 300.216(b)(2)-(3) and No............... No comparable N/A.............. Yes.
(c) Transshipping, bunkering requirements.
and net sharing.
Sec. 300.217 Vessel Yes.............. Sec. Yes.............. No.
identification. 300.22(b)(3)(ii) IMO
numbers.
Sec. 300.218 Reporting and Yes **........... Sec. 300.22 Yes.............. Yes.**
recordkeeping requirements. Recordkeeping and
reporting
requirements.
Sec. 300.219 Vessel Yes.............. Sec. 300.26 Vessel Yes.............. No.
monitoring system. Monitoring System.
Sec. 300.221 Facilitation of Yes.............. No comparable N/A.............. No.
enforcement and inspection. requirements.
Sec. 300.223(e) Purse seine No............... Sec. 216.24(e) Purse Yes.............. Yes.
observer coverage. seine observers *.
No comparable requirements..... N/A.............. Sec. 216.24 Yes.............. No.
Requirements for U.S.
purse seine vessels
fishing under the
requirements of the
AIDCP (e.g., vessel
and operator permit
requirements,
requirements for
fishing on dolphins,
etc.) *.
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* These regulations also implement provisions of the Marine Mammal Protection Act and the Agreement on the
International Dolphin Conservation Program, and are not located at 50 CFR part 300, subpart C, but instead are
located at 50 CFR part 216, subpart C.
** The transshipment reporting requirements at 50 CFR 300.218(b) and (d), the discard reporting requirements at
50 CFR 300.218(e), the net sharing reporting requirements at 50 CFR 300.218(f), the daily purse seine fishing
effort reports at 50 CFR 300.218(g), and the whale shark reporting requirements at 50 CFR 300.218(h) no longer
apply in the overlap area. The whale shark reporting requirements were described as no longer applicable in
the overlap area under the proposed rule. However, the other requirements listed here that no longer apply in
the overlap area are changes from the proposed rule.
Note: Titles of regulation sections have been modified in some instances to include additional descriptive
information.
The narrative that follows provides an explanation of why certain
WCPFC regulations continue to apply in the overlap area, while other
WCPFC regulations no longer apply in the overlap area, under this final
rule. The narrative is organized into topic areas.
Recordkeeping and Reporting
The regulations at 50 CFR 300.218(a) for catch and effort reporting
continue to apply in the overlap area under the final rule. NMFS is
required to maintain these provisions to fulfill its obligations under
the WCPF Convention (see Annex III, Article 5, requiring vessel
operators to ``record and report vessel position, catch of target and
non-target species, fishing effort, and other relevant fisheries
data'').
The regulations for transshipment reporting and notices at 50 CFR
300.218(b) and (d) apply to transshipment of fish caught in the WCPFC
Area and transshipped anywhere. Thus, they continue to apply to
transshipments of fish caught in the WCPFC Area outside the overlap
area and transshipped inside the overlap area under this final rule.
However, these regulations no longer apply to transshipments of fish
caught in the overlap area and transshipped in the overlap area.
The reporting requirements at 50 CFR 300.218 (e), (f), (g), and
(h), regarding purse seine discards, purse seine net sharing, daily
purse seine fishing effort, and whale shark encirclements no longer
apply in the overlap area.
Vessel Authorizations and Information
The requirements for vessel owners and operators to apply for and
obtain from NMFS an endorsement to fish in the WCPFC Area (WCPFC Area
Endorsement) and to provide certain information to NMFS if the vessel
is used for fishing in waters under the jurisdiction of a nation other
than the United States (50 CFR 300.212 and 50 CFR 300.213) continue to
apply in the overlap area. The United States is required by the WCPF
Convention to prohibit fishing vessels entitled to fly its flag to fish
beyond its areas of national jurisdiction unless they have been
authorized to do so and the United States must also ``maintain a record
of fishing vessels entitled to fly its flag and authorized to be used
for fishing in the [WCPF] Convention Area beyond its areas of national
jurisdiction'' and ``ensure that all such fishing vessels are entered
in that record'' (Article 24, Paragraphs 2 and 4). Accordingly, to
continue to fulfill these requirements, NMFS is maintaining the
regulations at 50 CFR 300.212 and 300.213 in the overlap area.
Vessel Identification
The vessel identification requirements at 50 CFR 300.217 continue
to apply in the overlap area. The requirements include specific vessel
marking requirements as well as requirements for obtaining IMO numbers.
NMFS must maintain the marking requirement to fulfill its obligations
under both the WCPF Convention (see Annex III, Article 6, Paragraph 3,
stating that vessels must be ``marked and identified in accordance with
the FAO Standard Specifications for the Marking and Identification of
Fishing Vessels or such alternative standard as may be adopted by the
Commission'') and the regulations implementing the High Seas Fishing
Compliance Act (see 50 CFR 300.36). NMFS is maintaining the requirement
for obtaining IMO numbers in the overlap area (50 CFR 300.217(c)).
[[Page 37380]]
A parallel IATTC regulation (50 CFR 300.22(b)) imposes the same
requirement, so maintaining orremoving the WCPFC regulation in the
overlap area would have no effect on vessel owners and operators at
this time. As noted above, NMFS has published a final rule that expands
the requirement for vessel owners to obtain IMO numbers to include
smaller U.S. vessels fishing for tuna and tuna-like species in the
IATTC Area (84 FR 70040; December 20, 2019; corrected in 85 FR 8198;
February 13, 2020).
Observers
The majority of the requirements implementing WCPFC conservation
and management measures regarding observers no longer apply in the
overlap area under this final rule. However, the requirements for
accommodating observers at 50 CFR 300.215(c)(3), (4), and (5) continue
to apply in the overlap area, as they apply in all locations where a
WCPFC observer is on board the vessel. The specific provisions
regarding accommodation of WCPFC observers at 50 CFR 300.215(c) will
continue to apply in the overlap area so there is no gap in these
requirements, which are intended for the safety and well-being of WCPFC
observers, just because the vessel has entered the overlap area.
Transshipment and Net Sharing
Requirements implementing the WCPFC decisions regarding
transshipment and net sharing no longer apply in the overlap area under
this final rule, except for the prohibition on transshipments at sea
from or to purse seine vessels at 50 CFR 300.216(b)(1). NMFS is
required to maintain the purse seine transshipment prohibition to
fulfill its obligation under the WCPF Convention (see Article 29,
Paragraph 5, stating that ``transshipment at sea by purse seine vessels
operating within the Convention Area shall be prohibited'').
Regulations that implement IATTC management measures for transshipment
also include prohibitions on at-sea transshipment for purse seine
vessels (50 CFR 300.25(c)).
Vessel Monitoring System (VMS)
Regulations implementing WCPFC VMS measures continue to apply in
the overlap area under this final rule (50 CFR 300.219). NMFS is
required to maintain the VMS provisions in order to fulfill its
obligations under the WCPF Convention (see Article 24, Paragraph 8,
stating that ``[e]ach member of the Commission shall require its
fishing vessels that fish for highly migratory fish stocks on the high
seas in the Convention Area to use near real-time satellite position-
fixing transmitters while in such areas'').
NMFS implements the WCPFC VMS requirements so that the vessel owner
and operator must continuously operate the VMS unit at all times,
except that the VMS unit may be shut down while the vessel is at port
or otherwise not at sea, provided that the owner and operator follows
certain steps (50 CFR 300.219(c)(3)). Thus, similar to the requirements
regarding accommodation of WCPFC observers, these regulations are not
specific to a particular geographic area and continue to apply in the
overlap area under this final rule.
Compliance With Laws of Other Nations
Regulations regarding compliance with laws of other nations (50 CFR
300.214) continue to apply in the overlap area under this final rule.
NMFS is required to maintain this provision in order to fulfill its
obligations under the WCPF Convention (see Annex III, Article 2,
stating that vessel operators must ``comply with the applicable
national laws of each coastal State Party to this Convention in whose
jurisdiction it enters and shall be responsible for the compliance by
the vessel and its crew with such laws and the vessel shall be operated
in accordance with such laws'').
Facilitation of Enforcement and Inspection
Regulations for facilitating enforcement and inspection (50 CFR
300.221) continue to apply in the overlap area under this final rule.
NMFS is required to maintain the regulations found in 50 CFR 300.221(a)
in order to fulfill its obligations under the WCPF Convention. 50 CFR
300.221(a)(1) requires certain documentation be carried onboard, as
required by Annex III, Article 6, Paragraph 1 of the WCPF Convention.
This provision states that ``the authorization issued by the flag State
of the vessel and if applicable, any license issued by a coastal State
Party to this Convention, or a duly certified copy . . . shall be
carried on board the vessel at all times and produced at the request of
an authorized enforcement official of any member of the Commission.''
50 CFR 300.221(a)(2) requires continuous monitoring of certain radio
frequencies, as required by Annex III, Article 6, Paragraph 4 of the
WCPF Convention, which states that vessel operators ``shall ensure the
continuous monitoring of the international distress and calling
frequency 2182 khz (HF) or the international safety and calling
frequency 156.8 Mhz (channel 16, VHF-FM) to facilitate communication
with the fisheries management, surveillance and enforcement authorities
of the members of the Commission.'' Title 50 CFR 300.221(a)(3) requires
that an up-to-date copy of the International Code of Signals (INTERCO)
is on board and accessible at all times, as required by Annex III,
Article 6, Paragraph 5 of the WCPF Convention. Title 50 CFR
300.221(a)(4) requires specific provisions for facilitating the work of
WCPFC transshipment monitors, as required by Annex III, Article 4,
Paragraph 2, which states ``[t]he operator shall allow and assist any
person authorized by the Commission or by the member of the Commission
in whose designated port or area a transhipment takes place to have
full access to and use of facilities and equipment which such
authorized person may determine is necessary to carry out his or her
duties, including full access to the bridge, fish on board and areas
which may be used to hold, process, weigh and store fish, and full
access to the vessel's records, including its log and documentation for
the purpose of inspection and photocopying. The operator shall also
allow and assist any such authorized person to remove samples and
gather any other information required to fully monitor the activity.
The operator or any member of the crew shall not assault, obstruct,
resist, delay, refuse boarding to, intimidate or interfere with any
such authorized person in the performance of such person's duties.
Every effort should be made to ensure that any disruption to fishing
operations is minimized during inspections of trans[s]hipments.''
The regulations at 50 CFR 300.221(b) set forth specific
requirements regarding boarding and inspection on the high seas. NMFS
is required by the WCPF Convention to implement procedures for boarding
and inspection established by the WCPFC (see Article 26, Paragraph 3,
stating that Commission members ``shall ensure that fishing vessels
flying its flag accept boarding by duly authorized inspectors in
accordance with such procedures''). The regulations found in Sec.
300.221(b) implement those WCPFC procedures (Conservation and
Management Measure (CMM) 2006-08, ``Western and Central Pacific
Fisheries Commission Boarding and Inspection Procedures''), and
therefore, NMFS is maintaining these provisions in the overlap area.
The regulations at 50 CFR 300.221(c) require transiting fishing
vessels to store gear when transiting in an area they are not
authorized to fish, as required by Annex III, Article 6, Paragraph 6 of
the WCPF Convention (``At all times when
[[Page 37381]]
[a] vessel is navigating through an area under the national
jurisdiction of a member of the Commission in which it does not have a
license to fish, and at all times when the vessel is navigating on the
high seas in the Convention Area and has not been authorized by its
flag state to fish on the high seas, all fishing equipment on board the
vessel shall be stowed or secured in such a manner that is not readily
available to be used for fishing'').
Comments and Responses
NMFS received 10 comment letters in response to the proposed rule,
several of which included similar comments. Below, NMFS summarizes the
matters raised in each of the individual comment letters, grouping
similar comments together, and provides a response to each of these
matters.
Comment 1: Several commenters expressed support for changing
management of the overlap area so that regulations implementing IATTC
decisions rather than regulations implementing WCPFC decisions would
apply. One commenter stated that the IATTC rules are fairer, more
transparent, and more clearly delineated in terms of the rules to be
applied than are the WCPFC rules, thus reducing considerable
uncertainty with respect to potential violations. According to the
commenter, the IATTC regime establishes a more level playing field for
the U.S. fleet when compared to other fleets; the management measures
are more effectively monitored and enforced to ensure that everyone is
abiding by the same rules. The commenter also stated that for these
reasons, applying the IATTC rules to the overlap area would benefit the
U.S. tuna purse seine fleet, which, according to the commenter,
operates at a significant competitive disadvantage to its foreign
competitors, and has been recently reduced in size by approximately one
quarter due to the adverse economic conditions affecting the fleet.
According to the commenter, if adopted and applied correctly, this
proposed change could be one important step to mitigate these
conditions and stabilize the current situation. It would also respond
to some of the concerns of American Samoa Governor Moliga regarding the
adverse effects of current conditions on the economy of American Samoa.
Response: NMFS acknowledges the comments. This final rule maintains
the regulations in the proposed rule that apply IATTC management
measures in the overlap area.
Comment 2: Several commenters expressed concern that the proposal
to continue the requirement for purse seine vessels to carry WCPFC
observers on all fishing trips in the overlap area would make fishing
in the overlap area more logistically complicated and more expensive
than if those regulations did not continue to apply in the overlap
area. One commenter stated that more U.S. purse seine vessels are
choosing to fish exclusively in the IATTC Area for all or a significant
part of the year, rather than in the exclusive economic zones (EEZs) of
Pacific island parties to the South Pacific Tuna Treaty. If the
requirement to carry a WCPFC observer continues in the overlap area,
vessels would continue to need to carry two observers (an IATTC
observer and a WCPFC observer) or to carry a cross-endorsed observer
when fishing in the overlap area. Commenters stated that all cross-
endorsed observers are WCPFC observers that receive additional training
from the IATTC to operate in the IATTC Area and that there are no
cross-endorsed observers from the IATTC that are similarly approved to
operate in the WCPFC Area. One commenter stated that a vessel departing
from a port in the IATTC Area has two options for obtaining a WCPFC
observer: (1) Fly the observer to the port of departure, at the cost of
the travel as well as lost fishing time of a week or more; or (2) steam
to Christmas Island or other port to pick the observer up, again at the
loss of significant fishing time and fuel costs in excess of $20,000.
One commenter stated that it is important to note that purse seine
vessels currently fishing exclusively in the IATTC Area do not embark
cross-endorsed observers and thus are not able to fish in the overlap
area. According to the commenter, maintaining the existing observer
requirements for the overlap area would perpetuate this inequity, run
counter to the proposed rule's specified intent of applying IATTC rules
instead of WCPFC rules in the overlap area, and significantly reduce
the potential benefits of the proposed rule to the purse seine fleet.
The commenter also stated that the EA for the proposed rule shows that
requiring cross-endorsed observers and other WCPFC MCS measures in the
overlap area in addition to IATTC regulations would not provide any
additional conservation benefit.
Commenters requested NMFS to modify the proposed rule so that purse
seine vessels fishing exclusively in the IATTC Area, including the
overlap area, not be required to carry WCPFC observers, and be subject
to only the IATTC-related observer requirements. One commenter stated
that it understood that this is the practice of all others that are
Contracting Parties to both the WCPF Convention and the Convention for
the Strengthening of the Inter-America Tropical Tuna Commission
Established by the 1949 Convention between the United States of America
and the Republic of Costa Rica (Antigua Convention), and NMFS'
rationale for maintaining both requirements is unclear. According to
the commenter, NMFS' 2016 rule regarding the overlap area did continue
to apply both WCPFC and IATTC observer requirements for purse seine
vessels, but stated that NMFS only continued to apply the IATTC
observer requirements at 50 CFR 300.22(b) to fulfill U.S. obligations
under the AIDCP (2016 final rule; 81 FR 24501; April 26, 2016). The
proposed rule does not similarly identify any U.S. treaty obligations
that would be undermined or abrogated by following the clear intent of
the WCPFC-IATTC joint decision on the overlap area. The commenter
stated that the proposed rule draws an unwarranted and unsupported
distinction between conservation and management measures for fish
stocks and those for MCS purposes that runs contrary to the decisions
of both organizations and fails to acknowledge that all WCPFC decisions
related to the operations of fishing vessels, including those for MCS
purposes, are implemented by binding conservation and management
measures. The commenter stated that with respect to the continued
application of certain WCPFC rules in the overlap area, the concern is
not with the application of the requirements themselves. The concern is
that the continued application of the WCPFC MCS measures in the overlap
area appears to require vessels to carry cross-endorsed observers,
which, as noted, will unnecessarily limit the benefits of the proposed
rule for vessels fishing exclusively in the IATTC Area. Another
commenter stated that it did not believe that there are issues relating
to legal obligations for carrying an observer under either the WCPF
Convention or the Antigua Convention, since both conventions require
purse seine vessels just to carry an observer, and do not specify that
the observer needs to be a WCPFC observer or an IATTC observer.
Response: As stated above, NMFS has reconsidered the specific WCPFC
observer coverage requirements for purse seine vessels in 50 CFR
300.223(e). We agree that NMFS need not apply the observer provisions
in 50 CFR 300.223(e) in the overlap area in order for the U.S. to
fulfill its obligations under the WCPF Convention. Moreover, requiring
both a
[[Page 37382]]
WCPFC observer and an IATTC observer, or a cross-endorsed observer,
would not provide any additional conservation or monitoring benefit,
and may be cost-prohibitive for vessels fishing in the IATTC Area who
wish to enter the overlap area. However, for the reasons discussed
above, the requirements for accommodating observers at 50 CFR
300.215(c)(3) continue to apply in the overlap area.
In response to the comment that the proposed rule did not identify
any U.S. treaty obligation that would be undermined by continuing to
apply certain WCPFC regulations in the overlap area, NMFS has
identified specific provisions of the WCPF Convention which impose
continuing requirements upon NMFS in the overlap area. NMFS is
continuing to apply WCPFC regulations which are necessary to continue
to fulfill its obligations under the WCPF Convention. Please see
discussion above for a description of these obligations.
Comment 3: One commenter objected to NMFS' conclusions that the
proposed rule would not have any disproportionate economic impacts
based on vessel size, gear, or homeport and that the rule would only
bring modest increases in compliance costs to purse seine vessels.
According to the commenter, the purse seine observer coverage
requirements under the proposed rule would permanently prevent some
vessels that are active on the IATTC Regional Vessel Register (RVR)
from being able to fish in the overlap area. The commenter stated that
since publication of the 2016 final rule, repeated requests have been
made to NMFS to assist in getting IATTC observers approved as cross-
endorsed observers, but there are still no IATTC observers that are
cross-endorsed observers. In addition, the commenter stated that the
WCPFC and the Pacific Islands Forum Fisheries Agency (FFA) have stated
that a WCPFC observer will never be placed on board a vessel that is
not on the WCPFC Record of Fishing Vessels. Thus, according to the
commenter, U.S. purse seine vessels that are on the IATTC RVR but not
on the WCPFC Record of Fishing Vessels would not be permitted to fish
in the overlap area under the proposed rule. The commenter stated that
unlike IATTC vessels from every other nation, and any U.S. flagged
purse seine vessel that operates in the WCPFC Area outside of the
overlap area, its vessel would be completely excluded from fishing in
the overlap area, and suffer the resulting disproportionate economic
impact simply because it operates from a port in the eastern Pacific
Ocean (EPO) instead of the western and central Pacific Ocean (WCPO).
In addition, the commenter stated, for vessels that are on both the
IATTC RVR and the WCPFC Record of Fishing Vessels and operate from
ports in the EPO, the requirement to carry a WCPFC observer results in
trip delays and tens of thousands of dollars in additional costs for
every fishing trip in the overlap area. According to the commenter, it
takes the IATTC approximately 24 hours to assign an observer to a
vessel leaving out of a port in the EPO, but the process to obtain a
WCPFC observer that is a cross endorsed-observer is substantially more
burdensome. The commenter stated that it takes at least two weeks
advance notice to have a cross-endorsed observer assigned to a vessel
in the EPO, if such as an observer is even available. According to the
commenter, once the vessel owner notifies the FFA that a cross-endorsed
observer is needed, the FFA begins the process of finding an observer
who is willing to travel to South America. The vessel owner must then
pay for a round trip ticket for the observer and obtain all required
visas for the travel, which amount to approximately $6,000 per trip. If
the FFA cannot provide an observer willing to travel to South America,
a vessel based out of an EPO port must travel with an IATTC observer on
board, cross into the WCPFC Area and pick up a WCPFC observer, and then
enter the overlap area. Such a trip takes at least four days out of the
way to get to the closest port in the WCPFC Area, which costs upwards
of $20,000 in fuel costs, in addition to the crew and other vessel
costs and lost fishing time.
Response: Please see the response to Comment 2, above, regarding
application of WCPFC purse seine observer coverage requirements in the
overlap area under this final rule. The WCPFC observer coverage
requirements for purse seine vessels found in 50 CFR 300.223(e) no
longer apply in the overlap area under this final rule. The analysis in
the FRFA below, provides an updated discussion of the compliance costs
of the final rule, including a discussion of potential disproportionate
economic impacts. NMFS notes that the requirement to carry a WCPFC
observer on U.S. purse seine vessels when in the overlap area was not
newly proposed in the proposed rule (i.e., it was an existing
requirement). Thus, the proposed rule would not have introduced any new
compliance costs regarding observers for U.S. purse seine vessels when
fishing in the overlap area, and would not have led to disproportionate
economic impacts based on vessel size, gear, or homeport.
Comment 4: One commenter questioned why the WCPFC is giving up or
ceding its right to determine fishing regulations in the overlap area.
Response: Under the WCPF Convention, the WCPFC continues to have
management competence over the overlap area. However, the WCPFC and
IATTC decided that members of both commissions, like the United States,
can choose whether to apply WCPFC management measures or IATTC
management measures in the overlap area (see WCPFC-IATTC joint decision
on the overlap area). Table 1, above, shows the domestic regulations
implementing WCPFC decisions and which regulations implementing IATTC
decisions that NMFS is applying in the overlap area under this final
rule.
Comment 5: One commenter stated that the use of FADs can pose a
serious risk to young fish populations, specifically juvenile yellowfin
and bigeye tuna. The commenter requested that the more stringent FAD
restrictions enacted through the WCPFC-derived regulations remain in
effect and not be replaced by regulations implementing IATTC measures.
According to the commenter, populations of younger yellowfin and bigeye
tuna tend to congregate near FADs much more frequently than their adult
counterparts. The commenter stated that FADs are believed to be
effective because they provide fish with a sense of security from
lurking predators in the open sea, and that younger fish seek this
protection much more than adult fish. The commenter provided
information regarding the behavioral tendencies of fish around FADs and
cited a publication by the Pew Environment Group. According to the
commenter, FADs place juvenile fish populations at risk of being
overfished, which can lead to sharp declines in overall fish
populations, and place our natural resources in jeopardy. The commenter
stated that the regulations implementing the WCPFC 5-month FAD
prohibition period should remain in effect in the overlap area.
Response: As stated in the EA, the change in application in the
overlap area from the WCPFC purse seine fishing effort limits and FAD
restrictions to the IATTC purse seine fishing seasonal closures and FAD
restrictions could affect the fishing patterns and practices of U.S.
purse seine vessels fishing in the overlap area, leading to greater
fishing effort in the overlap area and possibly greater flexibility and
fishing opportunities in the WCPO as a whole. However, when agreeing on
the joint WCPFC-IATTC decision on the overlap area, the WCPFC and IATTC
[[Page 37383]]
recognized that a member may choose to apply the conservation and
management measures of only the WCPFC or the IATTC. Moreover, as stated
in the EA, because many other factors contribute to the status of the
stocks (fishing activities by non-U.S. fleets, oceanographic
conditions, etc.), and because the overlap area is a small part of the
total area available for fishing in the Pacific Ocean, the direct and
indirect effects to fish stocks from implementation of this final rule
is expected to be small. The stocks of skipjack tuna, yellowfin tuna,
and bigeye tuna in the Pacific Ocean are not currently in an overfished
condition or experiencing overfishing (except the EPO stock of
yellowfin tuna).
Comment 6: One commenter stated that the overlap area is an
important fishing ground for the U.S. purse seine fleet based in
American Samoa, due to the geographic proximity of the overlap area to
American Samoa. The commenter also stated that U.S. purse seine vessels
do not have to pay access fees for fishing on the high seas in the
overlap area, unlike the access fees needed to fish in the EEZs of the
Parties to the Nauru Agreement, Tokelau, and the Cook Islands.
According to the commenter, the current practice of applying both the
WCPFC and IATTC management measures to the overlap area is redundant
and is a wasteful use of compliance, monitoring, surveillance and
regulatory resources. Similarly, the commenter stated, the proposed
rule seems wasteful and operationally impractical in that it requires
both IATTC observers and WCPFC observers or a cross-endorsed observer
for fishing in the overlap area. According to the commenter, cross-
endorsed observers are not always available, so U.S. purse seine
vessels operating from American Samoa may not be able to fish in the
overlap area if an IATTC observer or a cross-endorsed observer is
unavailable. The commenter stated that the American Samoa government is
trying to attract fishing vessels to operate out of American Samoa so
that the canneries will have access to their catch; locally based U.S.
purse seine vessels are critically important for the supply of tuna to
the dependent economy. The commenter stated that U.S. purse seine
vessels need access to the overlap area, but access would be
effectively blocked if the vessels have to take observers from both the
WCPFC and the IATTC and such observers or cross-endorsed observers are
not available.
Response: NMFS acknowledges the comment. However, the term
``current practice'' in the comment is unclear to NMFS and NMFS does
not know whether the commenter is referring to the regulatory changes
described in the proposed rule or to regulations that were already in
effect. Table 1 above details the regulations that were already in
effect, the regulations that go into effect under this final rule, and
the changes from the proposed rule. Please see the response to Comment
2, above, regarding application of WCPFC purse seine observer
requirements in the overlap area under this final rule. The WCPFC
observer coverage requirements for purse seine vessels found in 50 CFR
300.223(e) no longer apply in the overlap area under this final rule.
U.S. purse seine vessels operating from American Samoa must comply with
the IATTC observer measures for purse seine vessels found in 50 CFR
216.24(e) when operating in the overlap area, which can be satisfied by
carrying either an IATTC observer or a cross-endorsed observer. The
current list of cross-endorsed observers includes 86 individuals (list
dated September 26, 2019), all from Pacific Island countries, and thus,
they are generally more readily available to depart from American Samoa
than are IATTC observers.
Comment 7: A commenter stated that there is no need to have an area
of overlap between two fishing commissions that manage tuna. According
to the commenter, the IATTC covers more overall territory and the
IATTC's distribution of fishing zones is more precise and evenly
spaced. Thus, the commenter stated, it would be more efficient for the
overlap area to be managed by the IATTC, but questioned what those on
the U.S. west coast and in the Pacific islands would receive in return.
According to the commenter, the proposed rule does not seem to provide
a detailed solution to revoking territory from the WCPFC.
Response: NMFS acknowledges the comment. However, the matter raised
by the commenter is outside the scope of this rulemaking. The WCPF
Convention specifies the WCPFC's area of competence, which includes the
overlap area, and the Antigua Convention specifies the IATTC's area of
competence, which includes the overlap area. As these boundaries are
established by international agreement, NMFS has no authority to alter
them.
Comment 8: A commenter stated that there may be protocols in place
between the IATTC and the Secretariat of the Pacific Community (and by
extension WCPFC) for sharing observer data for vessels carrying IATTC
observers in the overlap area. The commenter requests that NMFS
consider whether any such arrangement might be sufficient to address
the concerns expressed (by the same commenter) regarding the need for
U.S. purse seine vessels fishing in the overlap area to carry a cross-
endorsed observer.
Response: NMFS acknowledges the comment. As detailed in the
response to Comment 2, above, the WCPFC purse seine observer coverage
requirements at 50 CFR 300.223(e) no longer apply in the overlap area
under this final rule.
Comment 9: One commenter requested protection for tuna fisheries
and the areas where tuna live.
Response: NMFS acknowledges the comment. As detailed in Table 1,
above, NMFS regulations that implement conservation and management
measures for tuna fisheries apply in the overlap area under this final
rule.
Changes From Proposed Rule
In this final rule, several regulations implementing WCPFC
decisions, which would have applied in the overlap area under the
proposed rule, no longer apply in the overlap area. These regulations
are as follows:
Transshipment observer requirements (50 CFR 300.215(b) and
(d));
general WCPFC observer coverage requirements (50 CFR
300.215(c)(1) and (2));
transshipping, bunkering, and net sharing regulations (50
CFR 300.216(b)(2)-(3) and (c));
transshipment reporting requirements (50 CFR 300.218(b)
and (d));
discard reporting requirements at (50 CFR 300.218(e));
net sharing reporting requirements at (50 CFR 300.218(f));
daily purse seine fishing effort reports (50 CFR
300.218(g)); and
purse seine observer coverage (50 CFR 300.223(e)).
The reasons for these changes from the proposed rule are described
in greater detail above in the Background section.
This final rule also includes an administrative change to the
definition of Effort Limit Area for Purse Seine, or ELAPS, to further
clarify that the regulations at 50 CFR 300.223(a) implementing WCPFC
purse seine fishing effort limits, no longer apply in the overlap area,
and an administrative change to the definition of overlap area. Based
on NMFS' reexamination of the proposed rule, NMFS believes these
administrative changes will help clarify the intent of the final rule.
Classification
The Assistant Administrator for Fisheries has determined that this
final
[[Page 37384]]
rule is consistent with the WCPFCIA, the Tuna Conventions Act, and
other applicable laws.
Coastal Zone Management Act (CZMA)
NMFS determined that this action is consistent to the maximum
extent practicable with the enforceable policies of the approved
coastal management program of American Samoa, the Commonwealth of the
Northern Mariana Islands (CNMI), Guam, and the State of Hawaii. NMFS
submitted determinations to Hawaii and each of the Territories on
February 7, 2019, for review by the responsible state and territorial
agencies under section 307 of the CZMA. The CNMI replied by letter
dated March 7, 2019, stating that based on the information provided, it
has determined that the action will be undertaken in a manner that is
consistent to the maximum extent practicable with the enforceable
policies of the CNMI's coastal management program. Hawaii replied by
letter dated February 15, 2019, stating that, because the overlap area
is outside of the jurisdiction of the Hawaii Coastal Zone Management
Program's enforceable policies, it would not be responding to the
consistency determination. No responses were received from Guam or
American Samoa, and thus, concurrence with the respective consistency
determinations is presumed (15 CFR 930.41).
Executive Order 12866
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
Executive Order 13771
This final rule is considered an Executive Order 13771 deregulatory
action.
Regulatory Flexibility Act (RFA)
A final regulatory flexibility analysis (FRFA) was prepared as
required by section 604 of the RFA. The FRFA incorporates the initial
regulatory flexibility analysis (IRFA) prepared for the proposed rule.
The analysis in the IRFA is not repeated here in its entirety. A
description of the action, why it is being considered, and the legal
basis for this action are contained above in the SUMMARY section and
this SUPPLEMENTARY INFORMATION section of the preamble of this final
rule. The FRFA analysis follows:
Significant Issues Raised by Public Comments in Response to the IRFA
NMFS received one comment that responded specifically to the IRFA.
Comment 3, above, objected to NMFS' conclusions regarding
disproportionate economic impacts and compliance costs. Several other
comments on the proposed rule related to NMFS' assessment of the
economic effects of the proposed rule, and thus could be relevant to
the IRFA. See the discussion above summarizing Comments 1, 2, 3, and 6
and NMFS's responses to those comments.
Description of Small Entities to Which the Rule Will Apply
For RFA purposes only, NMFS has established a small business size
standard for businesses, including their affiliates, whose primary
industry is commercial fishing (50 CFR 200.2). A business primarily
engaged in commercial fishing (NAICS code 114111) is classified as a
small business if it is independently owned and operated, is not
dominant in its field of operation (including its affiliates), and has
combined annual receipts not in excess of $11 million for all its
affiliated operations worldwide.
The final rule would apply to owners and operators of U.S.
commercial fishing vessels used to fish for HMS in the overlap area,
including longline vessels, albacore troll vessels, and purse seine
vessels. The number of such vessels is the number authorized to fish in
both the IATTC Area and WCPFC Area. The numbers as of January 27, 2020,
as reflected on the IATTC RVR and the WCPFC Record of Fishing Vessels,
were 144 longline vessels, 25 albacore troll vessels, and 15 purse
seine vessels.
Based on limited financial information about the affected fishing
fleets, and using individual vessels as proxies for individual
businesses, NMFS believes that all of the affected longline and
albacore troll fishing entities, and almost 85 percent of the purse
seine fishing entities, are small entities as defined by the RFA; that
is, they are independently owned and operated and not dominant in their
fields of operation, and have annual receipts of no more than $11.0
million. Within the purse seine fleet, analysis of the average revenue,
by vessel, for the three years of 2016-2018 (most recent data
available) reveals that average annual revenue among vessels in the
fleet was about $9.0 million, and the 3-year annual averages were less
than the $11 million threshold for 12 of the 15 vessels on both the RVR
and the WCPFC Record of Fishing Vessels.
Recordkeeping, Reporting, and Other Compliance Requirements
The reporting, recordkeeping and other compliance requirements of
this final rule are described earlier in the preamble, as well as in
the preamble to the proposed rule. The classes of small entities
subject to the requirements and the expected costs of complying with
the requirements are described in this Classification section of this
final rule.
As described in the Paperwork Reduction Act (PRA) subsection below,
this final rule contains a revised collection-of-information
requirement subject to review and approval by OMB under the PRA.
Fulfillment of the requirements under the final rule is not
expected to require any professional skills that affected vessel owners
and operators do not already possess.
For longline fishing entities, although as previously described
there are about 144 such entities that are authorized to be used for
fishing in the overlap area, there has been very little fishing
activity in the overlap area (and no longline fishing activity at all
since 2010), and NMFS has not identified any factors affecting the
longline fishing status quo. The overlap area is distant from the
general areas of operation of the U.S. longline fisheries in the
Pacific Ocean. Moreover, the longline bigeye tuna catch limit for the
WCPFC area is 3,554 metric tons (mt) per year, while the longline
bigeye tuna catch limit for the IATTC area through 2020 is 750 mt per
year for vessel over 24 meters in overall length. Thus, at least for
large vessels that are capable of making the trip to the overlap area,
the change in management of the overlap area from WCPFC regulations to
IATTC regulations is not expected to provide an increased incentive to
fish in the overlap area. Consequently, NMFS expects the final rule to
have little or no effect in terms of recordkeeping, reporting, or other
compliance requirements for affected longline fishing entities.
For albacore troll fishing entities, NMFS does expect fishing
activity in the overlap area, so affected troll fishing entities could
experience effects from the final rule. Under the final rule, two
substantive sets of requirements that implement conservation and
management measures for fishing activity are newly applied to the
overlap area: The regulations to implement IATTC conservation and
management measures that restrict fishing in proximity to data buoys
(50 CFR 300.25(f)), and the regulations to implement IATTC conservation
and management measures prohibiting the retention of mobulid rays (with
limited exceptions) and requiring that they be handled and released in
specified manners (50 CFR 300.27(i)-(j)). The new data buoy
requirements could increase
[[Page 37385]]
operating costs by increasing the time spent at sea in the overlap
area. For example, the vessel operator and crew would have to avoid
interactions with data buoys, and if the vessel or gear becomes
entangled with a data buoy they would need to make sure to disentangle
the gear carefully, to cause as little damage to the data buoys as
possible. As NMFS found in the analysis in support of the 2011
rulemaking establishing these requirements throughout the IATTC Area,
NMFS expects interactions with data buoys to be rare (76 FR 68332;
November 4, 2011). Moreover, data from the National Data Buoy Center
(NDBC) indicates that only one anchored data buoy is located in the
overlap area. Since interactions with data buoys would be unlikely to
occur in the overlap area, the compliance costs are expected to be
minor or nil. NMFS does not expect the mobulid ray requirements to lead
to any compliance costs for albacore troll fishing vessels, because
there is very little bycatch in albacore troll fisheries (81 FR 50401;
August 1, 2016).
Some of the regulations implementing WCPFC conservation and
management measures (at 50 CFR part 300, subpart O) no longer apply in
the overlap area, but they are replaced with comparable regulations
implementing IATTC conservation and management measures (at 50 CFR part
300, subpart C) that now apply in this area. Specifically, the IATTC
prohibition against retaining oceanic whitetip shark, implemented by 50
CFR 300.27(d)), now applies in the overlap area. The requirements under
the regulations implementing WCPFC conservation and management measures
and IATTC conservation and management measures are similar, and NMFS
does not expect any substantive change in compliance costs for albacore
troll fishing entities. The regulations implementing WCPFC requirements
for observer coverage for transshipments at sea, transshipping and
bunkering, and for transshipment reporting for fish caught in the
overlap area no longer apply in the overlap area. However, available
information indicates that albacore troll vessels have not been
transshipping in the WCPFC Area, including the overlap area, in recent
years. There are also new requirements of a more administrative nature
that apply in the overlap area for albacore troll fishing entities
under regulations implementing IATTC conservation and management
measures, including logbook reporting requirements (50 CFR
300.22(a)(1)), VMS requirements (50 CFR 300.26), and the prohibition on
the use of tender vessels (50 CFR 300.25(b)). However, because the
affected albacore troll fishing entities are already required to comply
with these requirements when fishing in the IATTC Area, the application
of these requirements in the overlap area would not require substantial
changes in practices and would not be expected to bring any change in
compliance costs.
For the purse seine fishing entities, the removal of several
regulations that implement WCPFC conservation and management measures
for fishing activity from the overlap area is expected to reduce
compliance costs, but those reductions will be somewhat offset by
compliance costs associated with the imposition of similar regulations
to implement IATTC conservation and management measures in the overlap
area. The regulations that are removed from the overlap area under this
final rule are the annual limits on purse seine fishing effort and the
seasonal prohibitions on setting on FADs (50 CFR 300.223(b)), as well
as the requirements to carry WCPFC observers on all fishing trips (50
CFR 300.223(e)). The IATTC-related regulations that are now applied in
the overlap area are the seasonal closures on purse seine fishing and
purse seine FAD restrictions (50 CFR 300.28), as well as the IATTC
observer coverage requirements that have already been in effect (50 CFR
216.24(e)). Aside from the observer coverage requirements, the
respective purse seine measures of IATTC and WCPFC are not directly
comparable, and NMFS cannot predict their respective potential
compliance costs with any precision. Accordingly, only a qualitative
comparison of their respective compliance costs is possible. The
measures as they apply on the high seas are what matter for this
analysis, since no portion of the U.S. EEZ is within the overlap area,
and no U.S. commercial HMS fishing vessels have had a history of
fishing in the foreign EEZs in the overlap area. Under the final rule,
U.S. purse seine fishing vessels are subject to one of the IATTC's two
72-day prohibitions on purse seine fishing (50 CFR 300.25(e)) in the
overlap area each year. If instead the WCPFC measures continued to
apply in the overlap area, U.S. purse seine fishing entities would be
allowed, collectively, to spend 1,270 fishing days on the high seas in
the WCPFC Area each year, with fishing days spent in the overlap area
counting against that limit, and they would be subject to 5-month
prohibitions on fishing on FADs in the overlap area each year (50 CFR
300.223). Although, the two sets of measures are not directly
comparable, the IATTC measures provide greater fishing opportunities to
most or all affected purse seine fishing entities than those of WCPFC,
because the IATTC purse seine closure period is shorter than the purse
seine closures that have been in effect on the high seas in the WCPO
due to the purse seine fishing effort limits specified by the WCPFC (in
2015, closure from June 15 through December 31, 2015; in 2016, closure
from September 2 through December 31, 2016; in 2018, closure from
September 18 through December 31, 2018; in 2019, closure from October 9
through November 28, 2019, and December 10 through December 31, 2019)
or the WCPFC FAD prohibition periods. Further, the vessels operating
under IATTC measures have greater operational certainty (affording
logistical and maintenance predictability) because the vessel owner
chooses between one of two closure periods rather than being subject to
a variable closure date under WCPFC measures. It is not possible to
predict the degree to which those opportunities would be taken
advantage of, but the greater opportunities and flexibility they
provide indicate that application of IATTC measures in the overlap area
will likely reduce compliance costs for the directly affected purse
seine fishing entities.
Purse seine fishing entities authorized to fish in the WCPFC Area
but not in the overlap area (because they are on the WCPFC Record of
Fishing Vessels but not on the IATTC RVR) would not be directly
affected by the final rule, but they could be indirectly affected. The
fishing effort limits set forth in WCPFC conservation and management
measures no longer apply in the overlap area, allowing greater fishing
effort in the overlap area. Additionally, under the final rule, fishing
effort in the overlap area is not counted against WCPFC limits,
potentially increasing fishing opportunities for the U.S. purse seine
fleet outside the overlap area. This is based on trends in recent years
showing increased U.S. purse seine fishing activity in the overlap
area. Since all of the fishing days in the overlap area no longer count
towards the WCPFC-specified fishing effort limits, it is likely that
more fishing days would be available to U.S. purse seine vessels on the
high seas in the WCPFC Area outside of the overlap area.
The removal of the requirement for purse seine vessels to carry
WCPFC observers on all fishing trips in the overlap area is expected to
reduce compliance costs, as U.S. purse seine vessels no longer need to
carry both a
[[Page 37386]]
WCPFC observer and an IATTC observer or a cross-endorsed observer when
fishing in the overlap area. As detailed in the comment summary and
response section, above, obtaining a cross-endorsed observer or a WCPFC
observer is costly and difficult for U.S. purse seine vessels departing
from ports in the EPO, so this final rule will provide relief from that
cost.
In addition to the changes to the purse seine-specific regulations
just described, several substantive requirements apply to purse seine
fishing entities in the overlap area under the final rule that did not
previously apply in that area: The regulations implementing IATTC
conservation and management measures on FADs (50 CFR 300.28), the
Pacific bluefin tuna catch limit (50 CFR 300.25(g)), restrictions on
fishing in proximity to data buoys (50 CFR 300.25(f)), requirements to
release non-tuna and non-tuna-like species (50 CFR 300.27),
requirements to release mobulid rays (with limited exceptions) and
release them in specified manners (50 CFR 300.27(i)-(j)), and
requirements to release sharks and handle them in specified manners (50
CFR 300.27(k)), as explained in more detail below.
The FAD management measures include FAD identification regulations
that require that deployed FADs be physically marked with unique
identifiers, as well as limits on the number of active FADs,
restrictions on FAD deployments and removals, and FAD design
regulations, which require that all FADs on board or deployed meet
certain specifications, particularly with respect to the use of
netting. Although this final rule changes the area of application of
the FAD management regulations at 50 CFR 300.28, all of the affected
vessels are currently complying with those regulations when fishing in
the EPO. Data from 2014-2018 show that all current U.S. purse seine
vessels that fished in the overlap area also fished in the EPO. For
affected entities, the change in area of application of the FAD
management regulations probably will only bring a minor increase in
costs or no increased costs, as they are already complying with those
regulations when fishing in the EPO outside the overlap area. Moreover,
there are comparable limits for the number of active FADs currently
applicable in the overlap area under the regulations implementing WCPFC
decisions at 50 CFR 300.223(b).
The Pacific bluefin tuna catch limits that will go into effect in
the overlap area under the final rule are not expected to bring
compliance costs to the large U.S. purse seine vessels that fish in the
overlap area, as these vessels generally do not target or catch Pacific
bluefin tuna.
The data buoy requirements could increase operating costs for purse
seine vessels by increasing the time spent at sea for a given amount of
fishing. For example, vessels now are not allowed to fish within 1
nautical mile of an anchored data buoy, they must avoid interactions
with data buoys, and if the vessel or its gears becomes entangled with
a data buoy, the operator and crew need to make sure to disentangle the
gear carefully to cause as little damage to the data buoys as possible.
As NMFS found in the 2011 rulemaking that established these
requirements throughout the IATTC Area, NMFS expects interactions with
data buoys to be rare (76 FR 68332; November 4, 2011). Moreover, there
is a small number of data buoys located in the overlap area. Based on
data from the NDBC, only one anchored data buoy is located in the
overlap area. Thus, the compliance costs are expected to be minor.
The requirements to release non-tuna species and non-tuna-like
species, mobulid rays, and sharks are not expected to substantially
affect business revenues, because none of the affected fishing entities
target non-tuna species and non-tuna-like species, sharks, or rays.
However, the requirements could lead to increased time spent by vessel
operators and crew handling and releasing incidentally caught non-tuna
species and non-tuna-like species, sharks, and rays in the specified
manner, and so could bring modest compliance costs. In addition, these
requirements could detrimentally affect revenues if targeted tuna are
incidentally released when these species are intentionally released
from the brailer to comply with the regulations. However, affected U.S.
purse seine vessel owners and operators are already subject to these
requirements when fishing in the IATTC Area, and thus the small change
in the area of application of these requirements is not expected to
substantially increase compliance costs.
Some regulations implementing WCPFC conservation and management
measures for bycatch (at 50 CFR part 300, subpart O) no longer apply in
the overlap area. However, comparable regulations that implement IATTC
conservation and management measures for bycatch (at 50 CFR part 300,
subpart C) now apply in the overlap area. Regulations that have shifted
in this manner include the requirements to retain all catch of bigeye
tuna, skipjack tuna, and yellowfin tuna (50 CFR 300.27(a)), not to
retain oceanic whitetip shark (50 CFR 300.27(d)), and not to retain
silky shark (50 CFR 300.27(e)); requirements regarding sea turtle
handling and release (50 CFR 300.27(c)); whale shark restrictions (50
CFR 300.27(g)-(h)); and whale shark encirclement reporting requirements
(50 CFR 300.22(a)(2)). For these requirements, the two sets of
regulations are similar, and NMFS does not expect any substantive
change in compliance costs.
There are also six additional requirements for purse seine fishing
entities under the regulations implementing IATTC conservation and
management measures that are in effect under the final rule. These
requirements include reporting on FAD interactions (50 CFR
300.22(a)(3)(i)), reporting on active FADs (50 CFR 300.22(a)(3)(ii)),
logbook reporting requirements (50 CFR 300.22(a)(1)), the prohibition
on the use of tender vessels (50 CFR 300.25(b)), transshipment
requirements (50 CFR 300.25(c)), and VMS requirements (50 CFR 300.26).
The first two requirements (reporting on FAD interactions and reporting
on active FADs) bring substantive new requirements for fishing
activities in the overlap area. Regarding the requirement for reporting
on FAD interactions, as NMFS found in the 2016 rulemaking that
established the requirement throughout the IATTC Area (excepting the
overlap area), NMFS expects a minimal additional time burden for owners
and operators of large purse seine vessels to record the specified
information for FAD interactions activities, and expects minor impacts
on business incomes (81 FR 86966; December 2, 2016). Regarding
reporting on active FADs, as NMFS found in the 2018 rulemaking
establishing the requirement throughout the IATTC Area (excepting the
overlap area), NMFS does not expect any increase in compliance costs,
because it is likely that vessel operators are already collecting the
necessary information (83 FR 15503; April 11, 2018). The latter four
requirements (prohibition on the use of tender vessels, logbook
reporting requirements, transshipment requirements, and VMS
requirements) are not expected to bring any new compliance costs,
because the affected purse seine fishing entities are currently subject
to those regulations when fishing in the IATTC Area outside of the
overlap area, and the addition of these regulations in the overlap area
will not require substantial changes in practices. Moreover, the
regulations implementing the IATTC prohibition on at-sea transshipments
for purse seine vessels are essentially identical to regulations in
[[Page 37387]]
effect in the overlap area implementing the WCPF Convention and WCPFC
decisions. Similarly, the regulations implementing the IATTC VMS
provisions are essentially identical to regulations in effect in the
overlap area implementing the WCPF Convention and WCPFC decisions, but
would just apply to a smaller group of vessels--vessels 24 meters or
more in overall length. Given that the requirements implementing the
WCPF Convention already apply and continue to apply under the final
rule to vessels of all sizes, there will be no new VMS requirements
under the proposed rule, and all U.S. commercial fishing vessels
fishing for HMS in the overlap area are still required to continuously
operate the VMS at all times, with certain exceptions.
Several other regulations implementing WCPFC conservation and
management measures for U.S. purse seine vessels no longer apply in the
overlap area under this final rule. These include the discard reporting
requirements at 50 CFR 300.218(e); the transshipping, bunkering, and
net sharing regulations at 50 CFR 300.216(b)(3) and 50 CFR 300.216(c);
the net sharing reporting requirements at 50 CFR 300.218(f); and the
daily purse seine fishing effort reports at 50 CFR 300.218(g). However,
under regulations implementing the WCPF Convention and IATTC
resolutions, U.S. purse seine vessels are prohibited from transshipping
at sea, so the removal of the transshipping, bunkering, and net sharing
regulations will have little or no effect. Removal of the reporting
requirements is expected to reduce some compliance costs.
Based on the comments received on the proposed rule, NMFS is now
aware that several U.S. purse seine vessels that fish exclusively in
the EPO will likely fish in the overlap area under this final rule.
These vessels are already subject to all the regulations implementing
IATTC resolutions that apply to the overlap area under this final rule
when fishing in the EPO. However, these vessels will be subject to the
regulations implementing WCPFC conservation and management measures
that continue to apply in the overlap area. These regulations include
the following: (1) Vessel permit endorsements at 50 CFR 300.212; (2)
vessel information requirements for fishing in foreign EEZs at 50 CFR
300.213; (3) compliance with laws of other nations at 50 CFR 300.214;
(4) accommodating observers at 50 CFR 300.215(c)(3); (5) prohibition on
transshipments to and from purse seine vessels at sea at 50 CFR
300.216(b)(1); (6) vessel identification requirements at 50 CFR
300.217; (7) reporting and recordkeeping requirements at 50 CFR
300.218(a); (8) VMS requirements at 50 CFR 300.219; and (9)
facilitation of enforcement and inspection at 50 CFR 300.221. The
regulations regarding the prohibition on transshipments to and from
purse seine vessels at sea, vessel identification requirements, and VMS
requirements are not expected to bring any new compliance costs, as
U.S. purse seine vessels fishing in the EPO are already subject to
similar or identical requirements, as discussed above. The regulations
for accommodating WCPFC observers also are not expected to bring any
new compliance costs, as they apply only when WCPFC observers are on
board the vessel and U.S. purse seine vessels fishing exclusively in
the EPO, including the overlap area, are not expected to be carrying
WCPFC observers. The requirements for complying with the laws of other
nations also are not expected to bring any new compliance costs, as it
is unlikely these purse seine vessels will fish in areas subject to the
laws of other nations. Similarly, vessel information requirements for
fishing in foreign EEZs at 50 CFR 300.213 would not be expected to
bring any new compliance costs. Applying for and obtaining the WCPFC
Area Endorsements will result in some minor compliance costs--the
application fee for the five-year authorization is $58 and the
estimated time for completing the application is one hour. Submission
of the vessel information for fishing in foreign EEZs is estimated to
take 1.5 hours, so again, there will be some minor compliance costs
associated with this requirement. The reporting and recordkeeping
requirements also may bring some compliance costs, but these costs are
not expected to be substantial. The fishing report requirements at 50
CFR 300.218(a) may be fulfilled by completion of the IATTC reporting
requirements at 50 CFR 300.22. The requirements for facilitation of
enforcement and inspection could bring some compliance costs, but these
compliance costs are also unlikely to be substantial. Maintaining
appropriate documentation on board the vessel, monitoring certain radio
frequencies, and adhering to gear stowage requirements is not expected
to lead to substantial compliance costs. Facilitating high seas
boarding and inspections would only lead to compliance costs when they
occur WCPFC CMM 2006-08, ``Western and Central Pacific Fisheries
Commission Boarding and Inspection Procedures'' details the specific
procedures that inspection vessels must follow when conducting such
boarding and inspections and requires inspections to be completed
within four hours unless evidence of a serious violation is found.
Thus, such high seas boarding and inspections, if they do occur, would
not be expected to lead to substantial compliance costs unless evidence
of a serious violation is found; it is difficult to predict how often
that would occur and what type of compliance costs would be incurred in
such a situation. Overall, the compliance costs under this final rule
for U.S. purse seine vessels fishing exclusively in the EPO are not
expected to be substantial.
In summary, this final rule is expected to have little or no effect
on the compliance costs of any affected entities, except purse seine
fishing entities, for which a positive economic impact is expected. For
purse seine fishing entities, this rule is likely to bring modest
increases in compliance costs associated with several requirements that
will go into effect in the overlap area. However, these costs will be
counteracted by a potentially substantial reduction in compliance costs
associated with removal of the regulations to implement WCPFC
conservation and management measures for fishing effort limits and FAD
prohibition periods from application in the overlap area, making the
overall economic impacts positive.
Disproportionate Impacts
NMFS does not expect any disproportionate economic impacts between
small and large entities operating vessels resulting from this rule.
Furthermore, NMFS does not expect any disproportionate economic impacts
based on vessel size, gear, or homeport. Comment 3, above, questioned
NMFS' conclusions regarding disproportionate impacts in the proposed
rule. The commenter stated its belief that vessels fishing solely in
the IATTC Area, including the overlap area, would experience
disproportionate impacts from the WCPFC purse seine observer coverage
requirements set forth in 50 CFR 300.223(e). As stated above, the purse
seine observer coverage requirements at 50 CFR 300.223(e) no longer
apply under this final rule. Additionally, as stated above, the
compliance costs under this final rule for U.S. purse seine vessels
fishing exclusively in the IATTC Area or EPO are not expected to be
substantial.
[[Page 37388]]
Duplicating, Overlapping, and Conflicting Federal Regulations
NMFS has not identified any Federal regulations that conflict with
these regulations. NMFS has identified several Federal regulations that
duplicate or overlap with the regulations. These include: The logbook
reporting requirements at 50 CFR 300.22(a)(1), which overlap with
existing regulations at 50 CFR 300.34(b)(1) and 300.218(a), the
transshipment requirements at 50 CFR 300.25(c), which overlap with
existing regulations at 50 CFR 300.216(b), the vessel identification
requirements at 50 CFR 300.217, which overlap with requirements at 50
CFR 300.22(b)(3) and 50 CFR 300.336(b)(2), and the VMS regulations at
50 CFR 300.26, which overlap with existing regulations at 50 CFR 300.45
and 300.219. However, as described above, these regulations impose
requirements which are substantially similar to, or in some cases
identical to, requirements imposed under regulations currently
applicable in the overlap area. Thus, application of these overlapping
requirements is not expected to create significant economic burdens on
vessel owners and operators.
Alternatives to the Final Rule
NMFS has sought to identify alternatives that would minimize the
final rule's economic impacts on small entities (``significant
alternatives''). For most affected entities, the final rule is likely
to have no economic impact or a positive economic impact compared to
the no-action alternative. NMFS also considered the alternative of
removing application from the overlap area of all regulations derived
from WCPFC conservation and management measures and from the WCPF
Convention. This alternative would likely result in lower compliance
costs than this final rule for some affected entities, but NMFS
believes maintaining the application of some of those regulations is
necessary to fulfill U.S. obligations under the WCPF Convention, as
detailed above. Therefore, NMFS rejected this alternative.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. NMFS has
prepared small entity compliance guides for this rule, and will send
the appropriate guides to holders of permits in the relevant fisheries.
The guides and this final rule also will be available via the Federal
e-rulemaking Portal, at www.regulations.gov (search for Docket ID NOAA-
NMFS-2018-0049) and by request from NMFS PIRO (see ADDRESSES).
Paperwork Reduction Act
This final rule contains revised collection-of-information
requirements subject to review and approval by OMB under the PRA. These
requirements have been submitted to OMB for approval under Control
Numbers 0648-0649 and 0648-0218 and pertain to the reporting and
recordkeeping requirements that would no longer apply in the overlap
area and would not affect the estimated public reporting burden of
these collections. Other existing collection of information
requirements apply in the overlap area, under the following Control
Numbers: (1) 0648-0148, West Coast Region Pacific Tuna Fisheries
Logbook and Fish Aggregating Device Data Collection; (2) 0648-0595,
WCPFC Vessel Information Family of Forms; and (3) 0648-0204, West Coast
Region Family of Forms.
Send comments on these or any other aspects of the collection of
information to Michael D. Tosatto, Regional Administrator, NMFS PIRO
(see ADDRESSES), and by email to OIRA [email protected] or fax to
202-395-5806. Notwithstanding any other provision of the law, no person
is required to respond to, and no person shall be subject to penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
List of Subjects in 50 CFR Part 300
Administrative practice and procedure, Fish, Fisheries, Fishing,
Fishing vessels, Marine resources, Reporting and recordkeeping
requirements, Treaties.
Dated: May 28, 2020.
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
Subpart C--Eastern Pacific Tuna Fisheries
0
1. The authority citation for part 300, subpart C, continues to read as
follows:
Authority: 16 U.S.C. 951 et seq.
0
2. In Sec. 300.21, revise the definition of ``Convention Area or IATTC
Convention Area'' to read as follows:
Sec. 300.21 Definitions.
* * * * *
Convention Area or IATTC Convention Area means all waters of the
Pacific Ocean within the area bounded by the west coast of the Americas
and by 50[deg] N latitude from the coast of North America to its
intersection with 150[deg] W longitude, then 150[deg] W longitude to
its intersection with 50[deg] S latitude, and then 50[deg] S latitude
to its intersection with the coast of South America.
* * * * *
Subpart O--Western and Central Pacific Fisheries for Highly
Migratory Species
0
3. The authority citation for 50 CFR part 300, subpart O, continues to
read as follows:
Authority: 16 U.S.C. 6901 et seq.
0
4. In Sec. 300.211, revise the definition of ``Effort Limit Area for
Purse Seine, or ELAPS'' and add the definition of ``Overlap Area'' in
alphabetical order to read as follows:
Sec. 300.211 Definitions.
* * * * *
Effort Limit Area for Purse Seine, or ELAPS, means, within the area
between 20[deg] N latitude and 20[deg] S latitude, areas within the
Convention Area that either are high seas or within the EEZ, except for
the Overlap Area.
* * * * *
Overlap Area means the area within the Pacific Ocean bounded by
50[deg] S latitude, 4[deg] S latitude, 150[deg] W longitude, and
130[deg] W longitude.
* * * * *
0
5. In Sec. 300.215, revise paragraphs (c)(1) and (2), (d)(1)(ii), and
(d)(2)(v) to read as follows:
Sec. 300.215 Observers.
* * * * *
(c) * * * (1) Fishing vessels specified in paragraphs (a)(1) and
(2) of this section must carry, when directed to do so by NMFS, a WCPFC
observer on fishing trips during which the vessel at any time enters or
is within any part of the Convention Area other than the
[[Page 37389]]
Overlap Area. The operator and each member of the crew of the fishing
vessel shall act in accordance with paragraphs (c)(3), (4), and (5) of
this section with respect to any WCPFC observer.
(2) Fishing vessels specified in paragraph (a)(3) of this section
must carry an observer when required to do so under paragraph (d) of
this section, except for within the Overlap Area. The operator and each
member of the crew of the fishing vessel shall act in accordance with
paragraphs (c)(3), (4), and (5) of this section, as applicable, with
respect to any WCPFC observer.
* * * * *
(d) * * *
(1) * * *
(ii) The transshipment takes place entirely within the territorial
seas or archipelagic waters of any nation, as defined by the domestic
laws and regulations of that nation and recognized by the United
States, or entirely within the Overlap Area, and only includes fish
caught in such waters; or
* * * * *
(2) * * *
(v) The transshipment takes place entirely within the territorial
seas or archipelagic waters of any nation, as defined by the domestic
laws and regulations of that nation and recognized by the United
States, or entirely within the Overlap Area, and only includes fish
caught in such waters; or
* * * * *
0
6. In Sec. 300.216, revise paragraphs (b)(2) introductory text,
(b)(3)(i)(D), (b)(3)(ii) introductory text, and (c)(1) introductory
text to read as follows:
Sec. 300.216 Transshipping, bunkering and net sharing.
* * * * *
(b) * * *
(2) Restrictions on at-sea transshipments. If a transshipment takes
place entirely within the territorial seas or archipelagic waters of
any nation, as defined by the domestic laws and regulations of that
nation and recognized by the United States, or entirely within the
Overlap Area, and only includes fish caught within such waters, this
paragraph does not apply.
* * * * *
(3) * * *
(i) * * *
(D) The transshipment takes place entirely within the territorial
seas or archipelagic waters of any nation, as defined by the domestic
laws and regulations of that nation and recognized by the United
States, or entirely within the Overlap Area, and only includes fish
caught within such waters.
(ii) Bunkering, supplying and provisioning. Only fishing vessels
that are authorized to be used for fishing in the EEZ may engage in
bunkering in the EEZ. A fishing vessel of the United States used for
commercial fishing for HMS shall not be used to provide bunkering, to
receive bunkering, or to exchange supplies or provisions with another
vessel in the Convention Area, except for the Overlap Area, unless one
or more of the following is satisfied:
* * * * *
(c) * * *
(1) The owner and operator of a fishing vessel of the United States
shall not conduct net sharing in the Convention Area, except for within
the Overlap Area, unless all of the following conditions are met:
* * * * *
0
7. In Sec. 300.218:
0
a. Revise paragraphs (c), (d)(1) introductory text, (d)(2) introductory
text, and (e);
0
b. Add introductory text to paragraph (f); and
0
c. Revise paragraphs (g) and (h).
The revisions and addition read as follows:
Sec. 300.218 Reporting and recordkeeping requirements.
* * * * *
(c) Exceptions to transshipment reporting requirements. Paragraph
(b) of this section shall not apply to a transshipment that takes place
entirely within the Overlap Area or within the territorial seas or
archipelagic waters of any nation, as defined by the domestic laws and
regulations of that nation and recognized by the United States, and
only includes fish caught within such waters.
(d) * * *
(1) High seas transshipments. This section shall not apply to a
transshipment that takes place entirely within the Overlap Area and
only includes fish caught within such waters. The owner and operator of
a fishing vessel of the United States used for commercial fishing that
offloads or receives a transshipment of HMS on the high seas in the
Convention Area or a transshipment of HMS caught in the Convention Area
anywhere on the high seas and not subject to the requirements of
paragraph (d)(2) of this section, must ensure that a notice is
submitted to the Commission by fax or email at least 36 hours prior to
the start of such transshipment at the address specified by the Pacific
Islands Regional Administrator, and that a copy of that notice is
submitted to NMFS at the address specified by the Pacific Islands
Regional Administrator at least 36 hours prior to the start of the
transshipment. The notice must be reported in the format provided by
the Pacific Islands Regional Administrator and must contain the
following information:
* * * * *
(2) Emergency transshipments. This section shall not apply to a
transshipment that takes place entirely within the Overlap Area and
only includes fish caught within such waters. The owner and operator of
a fishing vessel of the United States used for commercial fishing for
HMS that offloads or receives a transshipment of HMS in the Convention
Area or a transshipment of HMS caught in the Convention Area anywhere
that is allowed under Sec. 300.216(b)(4) but would otherwise be
prohibited under the regulations in this subpart, must ensure that a
notice is submitted by fax or email to the Commission at the address
specified by the Pacific Islands Regional Administrator, and a copy is
submitted to NMFS at the address specified by the Pacific Islands
Regional Administrator within 12 hours of the completion of the
transshipment. The notice must be reported in the format provided by
the Pacific Islands Regional Administrator and must contain the
following information:
* * * * *
(e) Purse seine discard reports. The owner and operator of any
fishing vessel of the United States equipped with purse seine gear must
ensure that a report of any at-sea discards of any bigeye tuna (Thunnus
obesus), yellowfin tuna (Thunnus albacares), or skipjack tuna
(Katsuwonus pelamis) caught in the Convention Area, except for within
the Overlap Area, is completed, using a form that is available from the
Pacific Islands Regional Administrator, and recording all the
information specified on the form. The report must be submitted within
48 hours after any discard to the Commission by fax or email at the
address specified by the Pacific Islands Regional Administrator. A copy
of the report must be submitted to NMFS at the address specified by the
Pacific Islands Regional Administrator by fax or email within 48 hours
after any such discard. A hard copy of the report must be provided to
the observer on board the vessel, if any.
(f) Net sharing reports. This paragraph (f) does not apply to net
sharing activity within the Overlap Area.
* * * * *
[[Page 37390]]
(g) Daily purse seine fishing effort reports. If directed by NMFS,
the owner or operator of any fishing vessel of the United States
equipped with purse seine gear must report to NMFS, for the period and
in the format and manner directed by the Pacific Islands Regional
Administrator, within 24 hours of the end of each day that the vessel
is at sea in the Convention Area, 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.
(h) Whale shark encirclement reports. The owner and operator of a
fishing vessel of the United States used for commercial fishing in the
Convention Area that encircles a whale shark (Rhincodon typus) with a
purse seine in the Convention Area shall ensure that the incident is
recorded by the end of the day on the catch report forms maintained
pursuant to Sec. 300.34(c)(1), in the format specified by the Pacific
Islands Regional Administrator. This paragraph (h) does not apply in
the territorial seas or archipelagic waters of any nation, as defined
by the domestic laws and regulations of that nation and recognized by
the United States, or in the Overlap Area.
0
8. In Sec. 300.223, revise the introductory text to read as follows:
Sec. 300.223 Purse seine fishing restrictions.
None of the requirements of this section apply in the territorial
seas or archipelagic waters of the United States or any other nation,
as defined by the domestic laws and regulations of that nation and
recognized by the United States, or within the Overlap Area. All dates
used in this section are in Universal Coordinated Time, also known as
UTC; for example: The year 2013 starts at 00:00 on January 1, 2013 UTC
and ends at 24:00 on December 31, 2013 UTC; and July 1, 2013, begins at
00:00 UTC and ends at 24:00 UTC.
* * * * *
0
9. In Sec. 300.224, add introductory text to read as follows:
Sec. 300.224 Longline fishing restrictions.
None of the requirements of this section apply in the Overlap Area.
* * * * *
0
10. In Sec. 300.226, add introductory text to read as follows:
Sec. 300.226 Oceanic whitetip shark and silky shark.
None of the requirements of this section apply in the Overlap Area.
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[FR Doc. 2020-11981 Filed 6-19-20; 8:45 am]
BILLING CODE 3510-22-P