International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Fishing Restrictions and Observer Requirements in Purse Seine Fisheries for 2013-2014, 30773-30779 [2013-12198]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 78, Number 100 (Thursday, May 23, 2013)]
[Rules and Regulations]
[Pages 30773-30779]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-12198]



[[Page 30773]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 130104011-3456-02]
RIN 0648-BC87


International Fisheries; Western and Central Pacific Fisheries 
for Highly Migratory Species; Fishing Restrictions and Observer 
Requirements in Purse Seine Fisheries for 2013-2014

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

ACTION: Final rule.

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SUMMARY: NMFS issues regulations under authority of the Western and 
Central Pacific Fisheries Convention Implementation Act (WCPFC 
Implementation Act) to implement limits on fishing effort by U.S. purse 
seine vessels in the U.S. exclusive economic zone (EEZ) and on the high 
seas, restrictions on the use of fish aggregating devices (FADs), and 
requirements for U.S. purse seine vessels to carry observers. This 
action is necessary for the United States to implement provisions of a 
conservation and management measure adopted by the Commission for the 
Conservation and Management of Highly Migratory Fish Stocks in the 
Western and Central Pacific Ocean (WCPFC) to satisfy the international 
obligations of the United States under the Convention on the 
Conservation and Management of Highly Migratory Fish Stocks in the 
Western and Central Pacific Ocean (Convention), to which it is a 
Contracting Party.

DATES: This rule is effective June 24, 2013.

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, are available via the 
Federal e-Rulemaking Portal, at www.regulations.gov (search for Docket 
ID NOAA-NMFS-2013-0043). Those documents, and the small entity 
compliance guide prepared for this final rule, are also available from 
NMFS at the following address: Michael D. Tosatto, Regional 
Administrator, NMFS Pacific Islands Regional Office (PIRO), 1601 
Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-4700. The initial 
regulatory flexibility analysis (IRFA) and final regulatory flexibility 
analysis (FRFA) prepared under the authority of the Regulatory 
Flexibility Act (RFA) are included in the proposed rule and this final 
rule, respectively.

FOR FURTHER INFORMATION CONTACT: Tom Graham, NMFS PIRO, 808-944-2219.

SUPPLEMENTARY INFORMATION: 

Background

    On March 7, 2013, NMFS published a proposed rule in the Federal 
Register (78 FR 14755) to revise regulations at 50 CFR part 300, 
subpart O, to implement a decision of the WCPFC. The proposed rule was 
open to public comment through April 8, 2013. On March 25, 2013, NMFS 
published a correction to the proposed rule (78 FR 17919) regarding the 
address in the Federal e-Rulemaking Portal through which comments on 
the proposed rule could be submitted electronically.
    This final rule is issued under the authority of the WCPFC 
Implementation Act (16 U.S.C. 6901 et seq.), which authorizes the 
Secretary of Commerce, in consultation with the Secretary of State and 
the Secretary of the Department in which the United States Coast Guard 
is operating (currently the Department of Homeland Security), to 
promulgate such regulations as may be necessary to carry out the 
obligations of the United States under the Convention, including the 
decisions of the WCPFC. The authority to promulgate regulations has 
been delegated to NMFS.
    This final rule implements for U.S. fishing vessels the purse 
seine-related provisions of WCPFC Conservation and Management Measure 
(CMM) 2012-01, ``Conservation and Management Measure for Bigeye, 
Yellowfin and Skipjack Tuna in the Western and Central Pacific Ocean.'' 
The preamble to the proposed rule includes detailed background 
information, including on the Convention and the WCPFC, the provisions 
of CMM 2012-01 being implemented in this rule, and the bases for the 
proposed regulations, which is not repeated here.

New Requirements

(1) Fishing Effort Limits

    This final rule establishes a limit of 2,588 fishing days, for each 
of calendar years 2013 and 2014, that may be used by U.S. purse seine 
vessels in an area called the Effort Limit Area for Purse Seine, or 
ELAPS. The ELAPS includes all areas of the high seas and U.S. EEZ 
within the Convention Area between the latitudes of 20[deg] North and 
20[deg] South (but not the U.S. territorial sea). Once NMFS determines 
during either of 2013 or 2014 that, based on available information, the 
limit is expected to be reached by a specific future date, NMFS will 
issue a notice in the Federal Register announcing the closure of the 
U.S. purse seine fishery in the ELAPS starting on that specific future 
date. Upon any closure, it will be prohibited to use a U.S. purse seine 
vessel to fish in the ELAPS through the end of the calendar year. NMFS 
will publish the notice at least seven calendar days before the 
effective date of the closure to provide fishermen advance notice of 
the closure.

(2) FAD Restrictions

    This final rule establishes FAD prohibition periods from July 1 
through October 31 in 2013 and in 2014. During these periods it is 
prohibited for U.S. fishing vessels to set purse seines on or near FADs 
or to engage in specific other FAD-related activities in the Convention 
Area between the latitudes of 20[deg] North and 20[deg] South.
    A FAD is defined to mean any artificial or natural floating object, 
whether anchored or not and whether situated at the water surface or 
not, that is capable of aggregating fish, as well as any object used 
for that purpose that is situated on board a vessel or otherwise out of 
the water. The definition of FAD does not include a vessel.
    The specific activities that are prohibited in the applicable area 
during the FAD prohibition periods are:
    (1) Setting a purse seine around a FAD or within one nautical mile 
of a FAD.
    (2) Setting a purse seine in a manner intended to capture fish that 
have aggregated in association with a FAD or a vessel, such as by 
setting the purse seine in an area from which a FAD or a vessel has 
been moved or removed within the previous eight hours, or setting the 
purse seine in an area in which a FAD has been inspected or handled 
within the previous eight hours, or setting the purse seine in an area 
into which fish were drawn by a vessel from the vicinity of a FAD or a 
vessel.
    (3) Deploying a FAD into the water.
    (4) Repairing, cleaning, maintaining, or otherwise servicing a FAD, 
including any electronic equipment used in association with a FAD, in 
the water or on a vessel while at sea, except that: (i) A FAD may be 
inspected and handled as needed to identify the FAD, identify and 
release incidentally captured animals, un-foul fishing gear, or prevent 
damage to property or risk to human safety, and (ii) a FAD may be 
removed from the water and if removed may be cleaned, provided that it 
is not returned to the water.

[[Page 30774]]

    (5) Doing any of the following from a purse seine vessel or any 
associated skiffs, other watercraft or equipment, except in emergencies 
as needed to prevent human injury or the loss of human life, the loss 
of the purse seine vessel, skiffs, watercraft or aircraft, or 
environmental damage: (i) Submerging lights under water; (ii) 
suspending or hanging lights over the side of the purse seine vessel, 
skiff, watercraft or equipment, or (iii) directing or using lights in a 
manner other than as needed to illuminate the deck of the purse seine 
vessel or associated skiffs, watercraft or equipment, to comply with 
navigational requirements, and to ensure the health and safety of the 
crew.
(3) Observer Requirements
    This final rule requires that U.S. purse seine vessels carry WCPFC 
observers on all fishing trips in the Convention Area in 2013 and 2014, 
except fishing trips that occur entirely outside the area bounded by 
20[deg] North and 20[deg] South latitude or entirely within waters of a 
single foreign nation. A WCPFC observer is any observer authorized by 
the WCPFC to undertake duties as part of the WCPFC's Regional Observer 
Programme. Currently, observers deployed as part of the Pacific Islands 
Forum Fisheries Agency's observer program and observers deployed as 
part of the NMFS observer program qualify as WCPFC observers.
    Although this final rule does not require U.S. purse seine vessels 
to carry observers when fishing exclusively in water under the 
jurisdiction of a single foreign nation, in that situation, the foreign 
nation might have its own observer requirements that apply to the U.S. 
vessel. Furthermore, U.S. regulations at 50 CFR 300.214 require that if 
a U.S. fishing vessel with a WCPFC Area Endorsement or for which a 
WCPFC Area Endorsement is required is used for fishing for highly 
migratory species in the Convention Area in areas under the 
jurisdiction of a WCPFC member other than the United States, the owner 
and operator of the vessel must ensure that the vessel is operated in 
compliance with the applicable laws of that member, including any laws 
related to carrying observers.

(4) Other

    In addition to establishing the three sets of requirements 
described above, this final rule revises paragraph (c) of 50 CFR 
300.223, which relates to areas closed to purse seine fishing. The 
requirements in that paragraph expired on December 31, 2012. This final 
rule removes the contents of that paragraph and reserves the paragraph. 
Because the requirements in that paragraph have expired, this revision 
is merely of a housekeeping nature.

Comments and Responses

    NMFS received four sets of comments on the proposed rule and 
supporting documents. The comments are summarized below, followed by 
responses from NMFS.
    Comment 1: The proposed rule is extremely necessary to maintain the 
health of the Pacific fisheries, particularly tuna fisheries. Tuna is a 
prize catch and is being overfished at an alarming rate. The measures 
proposed by the Commission will be vital in maintaining the health of 
the Pacific Ocean ecosystems.
    The FAD and purse seine measures are articulated well; they will 
not only provide protection for the tuna populations, but for the 
marine ecosystems of the WCPO as a whole. Treating vessels as FADs will 
help control rates of overfishing.
    The rule would be more effective if it applied to the territorial 
seas, as the previous WCPFC measures did, so that the measures would 
apply as widely as possible.
    The fishing limits and FAD restrictions passed by the WCPFC 
implemented in this regulation are measures that promote sustainability 
and protection of fish populations. However, because the regulations 
apply only to a specific area of the Pacific Ocean, it is necessary to 
ensure coordination with fisheries in the remaining areas of the 
Pacific.
    The agency should continue to monitor the success of the limits and 
restrictions, as the FAD restrictions apply only from July through 
October; depending on when vessels undertake their voyages, these 
restrictions may not provide much protection to schools of tuna.
    The limited geographical application of the observer requirements 
may encourage fishermen to take trips outside the applicable areas so 
as not to have to comply with the requirements.
    To the extent possible, NOAA should survey and observe the tuna 
populations in the WCPO to ensure maximum sustainable yields, 
especially since the proposed rule notes that it is unlikely the 
fishing limits will be reached.
    The proposed rule's note of the possibility of increased tuna 
prices should the fishery have to close from reaching the effort limit 
is premature and misplaced. Overfishing creates higher prices because 
of permanent scarcity, as indicated by the record amounts that have 
been paid for tuna. NOAA's primary concern should be the protection and 
conservation of the fisheries. Ensuring the United States' full 
compliance with the Commission's regulations strengthens and 
legitimizes global efforts to protect marine ecosystems.
    Response: With respect to the necessity for, and importance of, the 
proposed rule, NMFS acknowledges the comments.
    NMFS implemented previous WCPFC measures so that they applied in 
the territorial seas of the United States and of other nations. 
However, the purse seine-related provisions of CMM 2012-01 are 
specifically limited to EEZs and the high seas. Therefore, in order to 
be consistent with CMM 2012-01, this rule does not apply in the 
territorial seas of the United States or of other nations.
    With respect to the need to coordinate with fisheries in areas of 
the Pacific other than the WCPO, the objective of the rule is the 
domestic implementation of a decision of the WCPFC, which applies only 
in the WCPO. Management of tuna stocks in other areas of the Pacific is 
under the purview of other regional fisheries management organizations 
(RFMOs), including the Inter-American Tropical Tuna Commission and the 
Commission for the Conservation of Southern Bluefin Tuna. Coordination 
with other fisheries, which, for example, could occur among those RFMOs 
and their members, is outside the scope of this rule.
    On monitoring the success of the limits and restrictions, NMFS 
intends to undertake appropriate enforcement and other activities to 
monitor and help ensure compliance with the regulations. Monitoring 
success with respect to the objectives of CMM 2012-01 and the 
Convention is more appropriately undertaken on the international level, 
such as by the WCPFC.
    On purse seine vessels avoiding the observer requirements by 
fishing outside the applicable areas, NMFS acknowledges the 
possibility, but notes that this behavior does not seem to have 
occurred during the last few years when similar observer requirements 
were in place.
    On surveying and observing tuna populations to ensure maximum 
sustainable yield, assessments of the three tuna stocks are typically 
undertaken by the WCPFC and its science providers. The WCPFC then uses 
the assessment results in formulating management measures to achieve 
specific objectives, which might or might not be to achieve maximum 
sustainable yield. NOAA personnel contribute to these efforts of the 
WCPFC and its science providers.

[[Page 30775]]

    With respect to the possibility of a fishery closure having effects 
on tuna prices, NMFS understands the comment to mean that the focus of 
the rulemaking should be on protecting and conserving fisheries and 
ensuring full compliance by the United States with the WCPFC's 
decisions. NMFS acknowledges the comment, but believes that analysis 
and consideration of the proposed rule's effects on fish prices, among 
other economic effects, is necessary. For example, analysis of price 
effects might be important in the context of analyzing the economic 
effects of the proposed rule on small entities, as required under the 
RFA, and on the nation as a whole, as required under Executive Order 
12866.
    Comment 2: The proposed rule needs to be reevaluated because it has 
inconsistencies and overlaps with other regulations. It is a lackluster 
and second-tiered approach to conservation; the United States 
government and industry can do better.
    First, combining the high seas and U.S. EEZ into one area, the 
ELAPS, for the purpose of the fishing effort limits mixes apples and 
oranges--any U.S. flagged vessel can fish on the high seas, but only 
vessels originally constructed in the United States can fish in the 
U.S. EEZ. The U.S. EEZ is already limited by requirements at 46 U.S.C. 
12113, which limit fishing effort in the U.S. EEZ, and is therefore a 
contradiction to the Duplicating, Overlapping, and Conflicting Federal 
Regulations section of the proposed rule in the IRFA. The United States 
should be leading the charge of true, enforceable and transparent 
regulations for the good of the fishery instead of constraining the 
U.S. fleet with regulations that are disregarded by the other distant 
water fleets operating in the area. This will drive the U.S. boats out 
and give the United States a limited say in conservation. Instead of 
endorsing a second-rate plan of limiting days and methods with quotas 
(or days), the U.S. government should be limiting the number of vessels 
and pushing for a full closure.
    Second, with a full closure, which has been done with success in 
the EPO, the entire fishery, including all species, is given a chance 
to recuperate in a transparent and enforceable way instead of having 
several different regulations for each species. The United States 
should not be jumping on the FAD closure bandwagon, which is 
unenforceable, and definitely not transparent, as other fleets fish 
year-round on FADs regardless of the FAD closure while the U.S. fleet 
follows the FAD closure, which is at the wrong time of year and should 
be at the end and beginning of the years.
    Response: NMFS understands that some of these comments relate not 
to the proposed rule, per se, but rather to the positions and role of 
the United States in the WCPFC. The response provided here is limited 
to the comments that relate directly to the proposed rule.
    With respect to combining the effort limits for the high seas and 
U.S. EEZ, as described in the IRFA, the EA, and the RIR prepared for 
the rule, NMFS considered an alternative in which the two areas would 
not be combined for the purpose of the fishing effort limits. As 
explained in the IRFA, NMFS does not prefer that alternative in part 
because the separation of the two areas would provide less operational 
flexibility for affected purse seine vessels. NMFS recognizes that only 
vessels with fishery endorsements would benefit directly from that 
operational flexibility, since only such vessels are permitted to fish 
in the U.S. EEZ. NMFS acknowledges that the fishing effort limits in 
this rule are similar to the laws and regulations that govern fishery 
endorsements (including regulations at 46 CFR 67.21) in that both 
govern the use of U.S. vessels in the U.S. EEZ for fishing. NMFS agrees 
that the fishery endorsement regulations at 46 CFR 67.21 can be 
construed to overlap with the fishing effort limits established in this 
rule. However, the two regulations do not conflict with or duplicate 
each other, and NMFS does not believe that the possible overlap in the 
regulations is in itself a reason to reevaluate the proposed 
combination of the two areas for the purpose of the fishing effort 
limit. Nonetheless, NMFS has further analyzed the proposal to combine 
the two areas for the purpose of the fishing effort limits (see 
additional discussion in the FRFA, below), but continues to believe 
that limits applicable in a single area will give the U.S. purse seine 
fleet as a whole greater opportunity to take full advantage of the 
available fishing days. Thus, NMFS has not made any change from the 
proposed rule.
    With respect to the possibility of limiting vessel numbers, such a 
requirement would be outside the scope of this rulemaking, which is to 
implement the purse seine-related provisions of CMM 2012-01.
    NMFS understands the comment regarding a full closure to mean the 
establishment of a seasonal closure on all purse seine fishing instead 
of the proposed FAD restrictions during certain periods of each year. 
NMFS acknowledges the commenter's views on the advantages of a seasonal 
closure on all purse seine fishing. However, CMM 2012-01 does not 
prescribe seasonal closures on all purse seine fishing; rather, it 
includes specific restrictions on the use of FADs. Consequently, in 
this rule NMFS is implementing the FAD restrictions called for in CMM 
2012-01 to meet the United States' international obligations as a 
Member of the WCPFC.
    Regarding the time of year during which the FAD restrictions will 
apply, the July-October period is mandated under CMM 2012-01, so 
establishing FAD prohibitions periods at other times of the year 
instead of July-October would fail to satisfy U.S. obligations under 
the Convention.
    Comment 3: One commenter supports the no-action alternative, on the 
basis that there are many items that are still being discussed and are 
a work in progress. Although the elements of the proposed rule seem 
simple, they have a lot of details, which, if not written and applied 
correctly, can have adverse effects.
    The U.S. vessels have been following diligently the substance of 
WCPFC ideals without the regulations. The United States was one of the 
few countries that complied with the high seas pocket and FAD closures 
when CMM 2008-01 was put into effect.
    One should be very careful about limiting the number of fishing 
days, internationally or otherwise, so as not to put the U.S. vessels 
at a disadvantage.
    Although observers are necessary, the obligations of vessel 
managers and the rights of observers must be defined so that vessels 
are not jeopardized by claims from untrained or inexperienced 
observers.
    Instead of more regulations for U.S. vessels, what is needed at 
this time is more enforcement for foreign vessels that conduct illegal 
activities.
    Response: NMFS notes that certain aspects of this comment might 
pertain to the positions of the United States in the WCPFC, which is 
outside the scope of this rule. The response provided here is limited 
to the aspects of the comment that relate directly to the proposed 
rule.
    Although CMM 2012-01 can be considered a work-in-progress in that 
it calls for the WCPFC to develop a multi-year management for 2014-
2017, it also includes specific provisions for 2013 that WCPFC members, 
including the United States, became obligated to implement upon the 
effective date of the CMM, in February 2013. Consequently, the no-
action alternative would not satisfy the obligations of the United 
States under the Convention, and NMFS has rejected it for that reason.

[[Page 30776]]

    NMFS recognizes the possibility of adverse effects resulting from 
the rule. NMFS assessed the likely effects of the proposed rule--both 
adverse and positive--in the EA, IRFA, and RIR prepared for the rule. 
NMFS considered the results of those assessments, along with comments 
received on those assessments and on the proposed rule, in preparing 
this final rule.
    NMFS recognizes that if the United States imposes WCPFC-mandated 
requirements on its vessels, such as limits on fishing effort, but 
other members of the WCPFC do not do the same for their vessels, U.S. 
fishing vessels can be put at a disadvantage relative to the fishing 
vessels of other members. However, in order to satisfy the obligations 
of the United States as a member of the WCPFC, NMFS must implement the 
WCPFC-mandated fishing effort limits for U.S. purse seine vessels. NMFS 
also notes that the United States, as a member of the WCPFC, is 
contributing to the development of the WCPFC's compliance monitoring 
scheme, with the aim of improving compliance with WCPFC decisions by 
all its members.
    In response to the comment regarding observers, NMFS notes that 
only WCPFC observers, meaning observers authorized by the WCPFC to 
undertake duties as part of the WCPFC's Regional Observer Programme, 
can be used to satisfy the observer requirements of this rule. NMFS 
also notes that regulations at 50 CFR 300.215 specify the obligations 
of vessel operators and crew members with respect to accommodating and 
protecting the safety and interests of WCPFC observers.
    The comment regarding enforcement of foreign vessels is 
acknowledged, but it is outside the scope of this rule, which applies 
only to U.S. vessels.
    Comment 4: The regulations governing the use of FADs in 2009 (final 
rule published August 4, 2009; 74 FR 38544; hereafter, ``2009 rule'') 
resulted in a number of alleged violations, in particular with respect 
to whether the purse seine vessel itself and its workboats could be 
considered FADs. Unfortunately for those who had to try to figure out 
how to comply with the regulations, the WCPFC used two different 
definitions of what constituted a FAD in CMM 2008-01 and then amended 
that measure and the definition of FAD in CMM 2009-01, which also 
addressed, for the first time, the use of lights that might be used 
either to try to aggregate fish or to move aggregated fish. The 2009 
rule did not address the use of lights.
    Once again, the agency is not being very precise with regard to a 
question raised by the vessel operators during the 2009 rulemaking: 
That is, may the vessel catch fish that have aggregated under the 
vessel overnight? Although the proposed rule claims that the use of 
lights to aggregate or move fish was already prohibited under the 2009 
rule, that statement is clearly misleading. If that statement were 
true, the agency would be prohibiting the use of any light that might 
shine, directly or indirectly, into the water overnight. Instead, the 
agency is being more precise about the use of certain kinds of lights, 
not just all lights, during these fish-under-boat sets.
    It appears that the agency is trying to rectify the uncertainty 
caused by the 2009 FAD regulations in at least two ways, changing the 
definition of a FAD to exclude vessels and specifying what kind of 
lights may be used and how they are used. These clarifications will be 
helpful but not unless the agency makes an effort to educate the 
international observers who serve on these vessels, because NOAA's 
regulations differ from the applicable WCPFC CMMs. It also removes the 
absurdity in the 2009 rule whereby a vessel purposefully used to 
aggregate fish became a FAD under the regulations and could then no 
longer be serviced or maintained.
    Finally, it would be helpful if the agency stated that one of the 
purposes of these changes in the 2013 FAD regulations is to make clear 
that U.S. flag vessels may harvest fish found under the purse seine 
vessel in the morning so long as the use of lights is circumscribed as 
set forth in the regulations. The agency should be placing its priority 
on obtaining compliance through clear directives and not on obtaining 
penalties from vague rules.
    Response: With respect to the comment that the WCPFC used two 
different definitions for FAD and then amended the definition of FAD, 
NMFS notes that the United States is obligated to implement WCPFC 
decisions through domestic regulations, and U.S. vessels are obligated 
to comply with those U.S. regulations, not WCPFC decisions. U.S. 
regulations to implement the original FAD restrictions adopted by the 
WCPFC were first issued in the 2009 rule, and NMFS extended them in 
2011 (interim rule published December 30, 2011; 76 FR 82180). Those 
regulations included a single definition for a FAD, and that definition 
has not been modified until now, with the issuance of this final rule.
    In response to the question as to whether vessels may catch fish 
that have aggregated under the vessel overnight, this final rule makes 
clear (as did the proposed rule): The rule explicitly prohibits setting 
a purse seine in a manner intended to capture fish that have aggregated 
in association with a FAD or a vessel. In other words, a vessel may not 
set on fish that have aggregated under that vessel or any other vessel 
overnight, regardless of whether any effort was made to aggregate those 
fish. This is a change relative to the 2009 rule, which allowed vessels 
to set on fish that naturally aggregated under a vessel overnight, so 
long as the vessel was not used for the purpose of aggregating fish. In 
addition to this new prohibition, the proposed rule would--and this 
final rule does--amplify the prohibitions established in the 2009 rule 
by explicitly prohibiting the use of lights in specific manners that 
are known to be used to aggregate fish.
    NMFS notes the comment regarding the need to educate the 
international observers who serve on these vessels. These observers 
have been authorized by the WCPFC to undertake vessel observer duties 
as part of the WCPFC's Regional Observer Programme, and as such, have 
been trained to collect specific types of information in accordance 
with the requirements and standards of WCPFC Regional Observer 
Programme. U.S. enforcement agencies make use of that information, 
where relevant and as appropriate, to enforce U.S. laws and 
regulations. NMFS further notes that observers do not make any final 
determinations as to whether or not violations occurred on board a 
vessel, and all decisions regarding charging of violations is the 
responsibility of the NOAA Office of General Counsel.
    In response to the final portion of this comment, NMFS reiterates 
that under this final rule, U.S. vessels may not set a purse seine to 
capture fish that have aggregated under the purse seine vessel in the 
morning even if the use of lights is circumscribed as set forth in the 
final rule. This is a change from the regulations established in the 
2009 rule.

Changes From the Proposed Rule

    In the proposed rule and this final rule, existing paragraph (b) in 
50 CFR 300.223, ``Use of fish aggregating devices,'' is expanded to 
prohibit setting a purse seine in a manner intended to capture fish 
that have aggregated in association with a vessel and amplified to 
explicitly prohibit the use of lights in specified manners. However, 
NMFS inadvertently did not include in the proposed rule corresponding 
changes to paragraph (w) in 50 CFR 300.222, ``Prohibitions.'' Thus, a 
change has been made in this final rule to revise 50 CFR

[[Page 30777]]

300.222(w) so that it corresponds to the activities prohibited under 50 
CFR 300.223(b).
    In the proposed rule, the proposed revisions to the existing 
regulations for the observer requirements, at 50 CFR 300.223(e), were 
not properly numbered in sequence and some of the cross references 
among paragraphs were incorrect. The numbering of the relevant 
paragraphs and the numbering of the paragraphs referred to within those 
paragraphs, as well as the instructions for revising the regulations, 
have been corrected in this final rule. Specifically, what was the 
introductory text of paragraph (e) in the proposed regulations has been 
redesignated as paragraph (e)(1). What were paragraphs (e)(1) and 
(e)(2) in the proposed regulations have been redesignated as (e)(1)(i) 
and (e)(1)(ii), respectively. Existing paragraphs (e)(3) and (e)(4), 
which relate to requirements to carry and accommodate WCPFC observers 
under 50 CFR 300.215 and other applicable regulations and which the 
proposed rule would not have revised, have been redesignated as (e)(2) 
and (e)(3), respectively, and revised so that they refer to paragraph 
(e)(1) of 50 CFR 300.223 and its two subparagraphs.
    No other changes from the proposed rule have been made.

Classification

    The Administrator, Pacific Islands Region, NMFS, has determined 
that this final rule is consistent with the WCPFC Implementation Act 
and other applicable laws.

Executive Order 12866

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

Regulatory Flexibility Act (RFA)

    A FRFA was prepared. The FRFA incorporates the 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 in the preamble of the 
proposed rule and in the SUMMARY and SUPPLEMENTARY INFORMATION sections 
of this final rule, above. The analysis follows:
    There would be no disproportionate economic impacts between small 
and large entities operating purse seine vessels as a result of this 
final rule. Furthermore, there would be no disproportionate economic 
impacts based on vessel size, gear, or homeport.

Significant Issues Raised by Public Comments in Response to the IRFA

    NMFS received three comments related to the IRFA. See Comments 1, 
2, and 3 on the proposed rule, and NMFS' responses, above.

Description of Small Entities to Which the Rule Will Apply

    The final rule will apply to owners and operators of U.S. purse 
seine vessels used for fishing in the Convention Area. The number of 
affected vessels is the number licensed under the South Pacific Tuna 
Treaty (SPTT). The current number of licensed vessels is 40, which is 
the maximum number of licenses available under the SPTT (excluding the 
five joint-venture licenses available under the SPTT, none of which 
have ever been applied for or issued). Based on limited financial 
information available on the purse seine fleet, including the fleet's 
total landings in 2010 and average cannery prices for tuna species in 
that year, most or all of the businesses that operate vessels in the 
fleet are large entities as defined by the RFA. However, it is possible 
that one or a few of these fish harvesting businesses meet the criteria 
for small entities (i.e., they are independently owned and operated and 
not dominant in their fields of operation, and have annual receipts of 
no more than $4.0 million); therefore, the purse seine fleet is 
included in this analysis.

Recordkeeping, Reporting, and Other Compliance Requirements

    The final rule will not establish any new reporting or 
recordkeeping requirements within the meaning of the Paperwork 
Reduction Act. The classes of small entities subject to the 
requirements and the types of professional skills necessary to fulfill 
each of the requirements are described in the IRFA.

Steps Taken To Minimize the Significant Economic Impacts on Small 
Entities

    NMFS identified and considered several alternatives to the proposed 
rule, including the no-action alternative. The action alternatives are 
limited to the ways in which the fishing effort limits and the FAD 
restrictions would be implemented; no alternatives other than the no-
action alternative were identified for the proposed observer 
requirements.
    (1) Fishing Effort Limits: As discussed in the IRFA, NMFS 
considered in detail two alternatives to the proposed fleet-wide limit 
of 2,588 fishing days per year in the ELAPS. The first alternative 
would establish separate fleet-wide annual fishing effort limits in the 
U.S. EEZ (27 fishing days per year) and the high seas (433 fishing days 
per year) in the Convention Area. NMFS does not prefer this alternative 
because the limits would be much more constraining than the proposed 
limits, and their separation into two areas would provide less 
operational flexibility for affected purse seine vessels (specifically, 
as noted in NMFS' response to Comment 2 on the proposed rule, above, 
for those vessels with fishery endorsements). A variation of this 
alternative, not discussed in the IRFA, would be to establish separate 
limits in the two areas, but to formulate the number of available 
fishing days in each area so that the sum of the two limits is 2,588 
fishing days per year. This variation could be advantageous for vessels 
with fishery endorsements (depending on the spatial distribution of 
fishing effort in a given year), but that advantage would be offset by 
the reduced operational flexibility for those vessels. NMFS does not 
see a significant advantage of this variation for affected entities, 
and rejects it in favor of the proposed fishing effort limits because 
the latter would afford greater operational flexibility for affected 
vessels, at least for vessels with fishery endorsements.
    The second alternative would be less restrictive than the proposed 
rule's limits. As described in the IRFA, it would establish a limit of 
3,943 fishing days per year in the ELAPS. This alternative would be 
less constraining and thus less costly to affected entities than the 
proposed rule's limit, but it is rejected because it would depart from 
the effort limits established for 2009-2012. A limit of 2,588 fishing 
days per year in the ELAPS is consistent with the precedent set by the 
2009 rule, and affected entities have already been exposed to the 
impacts of these limits for the past four years. The alternative of 
3,943 fishing days per year would also be less conservative in that it 
would have the potential for greater adverse effects on fish stocks and 
other living marine resources.
    In the RFA analysis for the 2009 rule, NMFS considered an 
alternative that would allocate the fishing effort limits among 
individual purse seine vessels in some manner. Given the complexity of 
setting up an individual allocation scheme, which would require 
considering which entities are to receive allocations, the criteria for 
making allocations, and whether and how the allocations would be 
transferable, as well as a mechanism to reliably monitor the fishing 
effort of the individual entities, NMFS does not believe it feasible to 
develop an individual allocation scheme for this rule. As a

[[Page 30778]]

result, NMFS has not considered the option in depth, and rejects it. 
NMFS notes, however, that as found in the RFA analysis for the 2009 
rule, this alternative would likely alleviate any adverse impacts of 
the race-to-fish that might occur as a result of establishing the 
competitive fishing effort limits as in the proposed rule. Those 
impacts, however, would be expected to be minor.
    The alternative of taking no action at all is rejected because it 
would fail to accomplish the objective of the WCPFC Implementation Act 
or satisfy the international obligations of the United States as a 
Contracting Party to the Convention.
    (2) FAD Restrictions: NMFS considered one alternative to the 
proposed FAD restrictions. This alternative would be the same as the 
proposed rule's restrictions except that it would not be prohibited to 
set on fish that have aggregated in association with a vessel (provided 
that the vessel is not used in a manner to aggregate fish). This would 
be less restrictive and thus presumably less costly to affected purse 
seine fishing businesses than the proposed rule's requirements. 
Historically, the number of these sets has been relatively small, 
averaging about four per year for the entire fleet from 1997 through 
2010, according to data recorded by vessel operators in logbooks 
(examination by NMFS of observer data from selected years indicates a 
somewhat higher number than the number reported by vessel operators, so 
vessel logbook data might underestimate the actual number, but the 
number is still small in comparison to FAD sets). Therefore, the degree 
of relief in compliance costs of allowing these sets for four months 
each year would be expected to be relatively small. NMFS believes that 
this alternative would not serve CMM 2012-01's objective of reducing 
the tuna stocks' fishing mortality rates through seasonal prohibitions 
on the use of FADs as well as would the proposed rule's FAD 
restrictions. For that reason, this alternative is rejected.
    The alternative of taking no action at all is rejected because it 
would fail to accomplish the objective of the WCPFC Implementation Act 
or satisfy the international obligations of the United States as a 
Contracting Party to the Convention.

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. As part of 
this rulemaking process, a small entity compliance guide has been 
prepared. The guide will be sent to permit and license holders in the 
affected fisheries. The guide and this final rule will also be 
available at www.fpir.noaa.gov and by request from NMFS PIRO (see 
ADDRESSES).

List of Subjects in 50 CFR Part 300

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

    Dated: May 16, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, Performing the functions and 
duties of the Deputy Assistant Administrator for Fisheries, National 
Marine Fisheries Service.

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

PART 300--INTERNATIONAL FISHERIES REGULATIONS

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

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


0
2. In Sec.  300.211, the definitions of ``Effort Limit Area for Purse 
Seine or ELAPS'', and ``Fish aggregating device'', or ``FAD'', are 
revised 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.
    Fish aggregating device, or FAD, means any artificial or natural 
floating object, whether anchored or not and whether situated at the 
water surface or not, that is capable of aggregating fish, as well as 
any object used for that purpose that is situated on board a vessel or 
otherwise out of the water. The definition of FAD does not include a 
vessel.
* * * * *

0
3. In Sec.  300.222, paragraph (w) is revised to read as follows:


Sec.  300.222  Prohibitions.

* * * * *
    (w) Set a purse seine around, near or in association with a FAD or 
a vessel, deploy or service a FAD, or use lights in contravention of 
Sec.  300.223(b).
* * * * *

0
4. In Sec.  300.223, the introductory text, paragraph (a) introductory 
text and paragraph (a)(1), and paragraph (b) are revised, paragraph (c) 
is removed and reserved, and paragraph (e) is revised 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. 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.
    (a) Fishing effort limits. This paragraph establishes limits on the 
number of fishing days that fishing vessels of the United States 
equipped with purse seine gear may collectively spend in the ELAPS.
    (1) For each of the calendar years 2013 and 2014 there is a limit 
of 2,588 fishing days.
* * * * *
    (b) Use of fish aggregating devices. From July 1 through October 
31, 2013, and from July 1 through October 31, 2014, owners, operators, 
and crew of fishing vessels of the United States shall not do any of 
the activities described below in the Convention Area in the area 
between 20[deg] N. latitude and 20[deg] S. latitude:
    (1) Set a purse seine around a FAD or within one nautical mile of a 
FAD.
    (2) Set a purse seine in a manner intended to capture fish that 
have aggregated in association with a FAD or a vessel, such as by 
setting the purse seine in an area from which a FAD or a vessel has 
been moved or removed within the previous eight hours, or setting the 
purse seine in an area in which a FAD has been inspected or handled 
within the previous eight hours, or setting the purse seine in an area 
into which fish were drawn by a vessel from the vicinity of a FAD or a 
vessel.
    (3) Deploy a FAD into the water.
    (4) Repair, clean, maintain, or otherwise service a FAD, including 
any electronic equipment used in association with a FAD, in the water 
or on a vessel while at sea, except that:
    (i) A FAD may be inspected and handled as needed to identify the 
FAD,

[[Page 30779]]

identify and release incidentally captured animals, un-foul fishing 
gear, or prevent damage to property or risk to human safety; and
    (ii) A FAD may be removed from the water and if removed may be 
cleaned, provided that it is not returned to the water.
    (5) From a purse seine vessel or any associated skiffs, other 
watercraft or equipment, do any of the following, except in emergencies 
as needed to prevent human injury or the loss of human life, the loss 
of the purse seine vessel, skiffs, watercraft or aircraft, or 
environmental damage:
    (i) Submerge lights under water;
    (ii) Suspend or hang lights over the side of the purse seine 
vessel, skiff, watercraft or equipment, or;
    (iii) Direct or use lights in a manner other than as needed to 
illuminate the deck of the purse seine vessel or associated skiffs, 
watercraft or equipment, to comply with navigational requirements, and 
to ensure the health and safety of the crew.
* * * * *
    (e) Observer coverage. (1) Until 24:00 UTC on December 31, 2014, a 
fishing vessel of the United States may not be used to fish with purse 
seine gear in the Convention Area without a WCPFC observer on board. 
This requirement does not apply to fishing trips that meet either of 
the following conditions:
    (i) The portion of the fishing trip within the Convention Area 
takes place entirely within areas under jurisdiction of a single nation 
other than the United States.
    (ii) No fishing takes place during the fishing trip in the 
Convention Area in the area between 20[deg] N. latitude and 20[deg] S. 
latitude.
    (2) Owners, operators, and crew of fishing vessels subject to 
paragraph (e)(1) of this section must accommodate WCPFC observers in 
accordance with the provisions of Sec.  300.215(c).
    (3) Meeting either of the conditions in paragraphs (e)(1)(i) and 
(e)(1)(ii) of this section does not exempt a fishing vessel from having 
to carry and accommodate a WCPFC observer pursuant to Sec.  300.215 or 
other applicable regulations.
* * * * *
[FR Doc. 2013-12198 Filed 5-22-13; 8:45 am]
BILLING CODE 3510-22-P