International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Fishing Restrictions in Purse Seine Fisheries and 2022 Longline Bigeye Tuna Catch Limit, 55768-55778 [2022-19457]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 87, Number 175 (Monday, September 12, 2022)]
[Proposed Rules]
[Pages 55768-55778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19457]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 220831-0179]
RIN 0648-BL25


International Fisheries; Western and Central Pacific Fisheries 
for Highly Migratory Species; Fishing Restrictions in Purse Seine 
Fisheries and 2022 Longline Bigeye Tuna Catch Limit

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule would modify existing limits on fishing 
effort by U.S. purse seine vessels in the U.S. exclusive economic zone 
(EEZ) and on the high seas between the latitudes of 20[deg] N and 
20[deg] S, in the area of application of the Convention on the 
Conservation and Management of Highly Migratory Fish Stocks in the 
Western and Central Pacific Ocean (Convention). In addition, this 
proposed rule would adjust the 2022 bigeye tuna catch limit in the area 
of application of the Convention (Convention Area) for U.S. longline 
commercial fishing vessels to 3,358 metric tons (mt), due to an overage 
of the 2021 catch limit. The proposed rule would clarify that 
adjustments to the purse seine fishing effort limits or longline bigeye 
tuna catch limits could occur each year, due to any overage of the 
prior year's limit. This proposed rule would also modify the following: 
the process for closing the fishery once NMFS expects the effort limits 
will be reached; the process for obtaining daily purse seine fishing 
effort reports; and the process for adjusting established annual catch 
and effort limits in the Convention Area. This action is necessary for 
the United States to implement provisions of a conservation and 
management measure adopted by the Commission for the Conservation and 
Management of Highly Migratory Fish Stocks in the Western and Central 
Pacific Ocean (WCPFC or Commission) and to satisfy the obligations of 
the United States under the Convention, to which it is a Contracting 
Party. NMFS is seeking comments on this proposed rule and will respond 
to those comments in a subsequent final rule.

DATES: Comments on the proposed rule must be submitted in writing by 
October 3, 2022.

ADDRESSES: You may submit comments on the proposed rule and the 
regulatory impact review (RIR) prepared for the proposed rule, 
identified by NOAA-NMFS-2022-0082 by any of the following methods:
     Electronic submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2022-0082 in the Search box. 
Click on the ``Comment'' icon, complete the required fields, and enter 
or attach your comments.
     Mail: Submit written comments to Sarah Malloy, Acting 
Regional Administrator, NMFS, Pacific Islands Regional Office (PIRO), 
1845 Wasp Blvd., Building 176, Honolulu, HI 96818.
     Fax: (808) 725-5215; Attn: Sarah Malloy.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name and address), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).
    Copies of the RIR and the 2015 programmatic environmental 
assessment (PEA), 2021 supplemental environmental assessment, and 2022 
Supplemental Information Report prepared for National Environmental 
Policy Act (NEPA) purposes are available at www.regulations.gov or may 
be obtained from Sarah Malloy, Acting Regional Administrator, NMFS PIRO 
(see address above).

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

SUPPLEMENTARY INFORMATION:

Background on the Convention

    The Convention is concerned with the conservation and management of 
highly migratory species (HMS) and the management of fisheries for HMS. 
The objective of the Convention is to ensure, through effective 
management, the long-term conservation and sustainable use of HMS in 
the western and central Pacific Ocean (WCPO). To accomplish this 
objective, the Convention

[[Page 55769]]

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

Background on WCPFC Decisions on Tropical Tunas and NMFS Rules

    At its Fourteenth Regular Session, in December 2017, the Commission 
adopted Conservation and Management Measure (CMM) 2017-01, 
``Conservation and Management Measure for Bigeye, Yellowfin and 
Skipjack Tuna in the Western and Central Pacific Ocean.'' CMM 2017-01 
included provisions for purse seine fishing effort limits, restrictions 
on the use of fish aggregating devices (FAD) for purse seine fishing 
vessels, specific catch retention provisions for purse seine fishing 
vessels, and longline bigeye tuna catch limits, among others. At its 
Fifteenth Regular Session, in December 2018, the Commission adopted 
Conservation and Management Measure (CMM) 2018-01, ``Conservation and 
Management Measure for Bigeye, Yellowfin and Skipjack Tuna in the 
Western and Central Pacific Ocean,'' which replaced CMM 2017-01 but 
included similar provisions. CMM 2018-01 went into effect on February 
13, 2019, and remained in effect until February 10, 2021. At its 
Seventeenth Regular Session, in December 2020, the Commission adopted 
CMM 2020-01, ``Conservation and Management Measure for Bigeye, 
Yellowfin and Skipjack Tuna in the Western and Central Pacific Ocean,'' 
which are identical to those of 2018-01, and were in effect until 
February 15, 2022. At its Eighteenth Regular Session, in December 2021, 
the Commission adopted CMM 2021-01, ``Conservation and Management 
Measure for Bigeye, Yellowfin and Skipjack Tuna in the Western and 
Central Pacific Ocean,'' which is effective until February 15, 2024. 
These and other CMMs are available at: www.wcpfc.int/conservation-and-management-measures. NMFS has implemented through other rulemakings the 
other relevant provisions of CMM 2021-01.\1\ The previous rules 
pertinent to the measure's purse seine fishing effort limits and 
longline bigeye tuna catch limits are described below.
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    \1\ NMFS has undertaken a rulemaking to implement the provisions 
on non-entangling fish aggregating devices (FADs) included in CMM 
2018-01 (see 86 FR 55790; published October 7, 2021). NMFS plans to 
undertake a separate rulemaking to implement the new non-entangling 
FAD provisions included in CMM 2021-01.
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Purse Seine Fishing Effort Limits

    By interim final rule published in the Federal Register on July 31, 
2019, NMFS implemented CMM 2018-01's provisions regarding the limits on 
fishing effort by U.S. purse seine vessels in the U.S. EEZ and on the 
high seas between the latitudes of 20[deg] N and 20[deg] S in the 
Convention Area (see 84 FR 37145; hereafter 2019 interim final rule). 
In that rule, NMFS established a combined limit on fishing effort by 
U.S. purse seine vessels in the Effort Limit Area for Purse Seine (or 
ELAPS, which comprises the areas of the high seas and U.S. EEZ between 
20[deg] N latitude and 20[deg] S latitude in the Convention Area) of 
1,828 fishing days \2\ per year for 2020 and subsequent years. These 
regulations are in effect until they are amended, replaced, or repealed 
(see 50 CFR 300.223(a)).
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    \2\ Fishing day means, for fishing vessels equipped with purse 
seine gear, any day in which a fishing vessel searches for fish, 
deploys a FAD, services a FAD, or sets a purse seine, with the 
exception of setting a purse seine solely for the purpose of testing 
or cleaning the gear and resulting in no catch (50 CFR 300.211).
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    CMM 2021-01 and its predecessor CMMs include language that requires 
any overage of an annual purse seine fishing effort limit to be 
deducted from the limit for the following year. As stated in the 2019 
interim final rule, NMFS combined the purse seine fishing effort limits 
for the U.S. EEZ and the high seas, consistent with previous 
rulemakings. For 2019, the interim final rule established a limit of 
1,616 fishing days (558 fishing days from the U.S. EEZ limit plus 1,270 
days from the high seas limit less the 212 fishing day overage of the 
2018 high seas limit) for the ELAPS. For 2020 and subsequent years, the 
2019 interim final rule established a limit of 1,828 fishing days per 
calendar year for the ELAPS.
    In 2020, the U.S. purse seine fleet used 126 fishing days in the 
U.S. EEZ and 1,659 fishing days in the high seas, and in 2021, the 
fleet used 118 fishing days in the U.S. EEZ and 733 fishing days in the 
high seas. Thus, the fleet did not exceed the ELAPS limit established 
by NMFS or the WCPFC-specified U.S. EEZ limit in either 2020 or 2021. 
However, in 2020, the fleet did exceed the WCPFC-specified high seas 
fishing day limit by 329 fishing days. Thus, the WCPFC-specified 
fishing day limit for U.S. purse seine vessels on the high seas in 2021 
was 1,270 fishing days minus the 329 fishing day overage, or 881 
fishing days. As stated, the U.S. purse seine fleet used 773 fishing 
days on the high seas in 2021--fewer fishing days than 881 fishing 
days.
    NMFS is issuing this proposed rule to amend the existing 
regulations to establish separate purse seine fishing effort limits for 
the U.S. EEZ and for the high seas. The limit for the U.S. EEZ 
established by the Commission in CMM 2021-01 is 558 fishing days per 
year. The limit for the high seas established by the Commission in CMM 
2021-01 is 1,270 fishing days per year. NMFS has established combined 
limits for the ELAPS in previous years to provide increased operational 
flexibility to the U.S. purse seine fleet fishing in the WCPO. In the 
past, NMFS combined the limits because it provided for operational 
flexibility while having the same overall impact on the stock. However, 
other WCPFC members have vigorously objected to the U.S. approach, and 
NMFS acknowledges that the plain text of the CMM establishes separate 
U.S. EEZ and high seas limits. NMFS also notes that there are 
significantly fewer licensed U.S. vessels operating under these limits, 
reducing

[[Page 55770]]

the risk that separate limits will be exceeded. Without necessarily 
conceding that the CMM prohibits a member's discretion to enforce a 
combined limit provided that the total amount harvested does not exceed 
the sum of the EEZ and high seas limits, NMFS declines to depart from 
the plain language of the CMM. Accordingly, NMFS proposes to establish 
separate U.S. EEZ and high seas limits. NMFS would implement the limits 
in this proposed rule to remain effective until they are replaced or 
amended.
    NMFS is also implementing the overage provision in CMM 2021-01 by 
including specific regulatory language indicating that NMFS would 
adjust the annual U.S. EEZ and high seas purse seine fishing effort 
limits each year to account for any overage of the limits in the 
previous year.

Longline Bigeye Tuna Catch Limits

    By final rule published in the Federal Register on July 18, 2018 
(83 FR 33851), NMFS implemented the longline bigeye tuna catch limit 
specified in CMM 2017-01 for U.S. commercial fishing vessels fishing in 
the Convention Area. The limit is 3,554 mt of bigeye tuna per year for 
longline fishing vessels of the United States (see 50 CFR 300.224(a)). 
The limit has remained the same in the more recent WCPFC decisions on 
tropical tunas, and is the same under the tropical tunas decision 
currently in effect--CMM 2021-01. Under WCPFC decisions on tropical 
tunas, if the limit is exceeded in a given year, the following year's 
limit must account for that overage (see CMM 2021-01 at Paragraph 37). 
The 2021 U.S. longline bigeye tuna catch in the Convention Area was 
3,750 mt or 196 mt over the catch limit. Thus, under this proposed 
rule, the 2022 U.S longline bigeye tuna catch limit in the Convention 
Area would be adjusted to 3,358 mt. The limit for 2023 and future years 
would be maintained at 3,554 mt. However, NMFS is also implementing the 
overage provision in CMM 2021-01 by including specific regulatory 
language indicating that NMFS would adjust the annual limit in each 
year to account for any overage of the previous year's limit.

Background on Other Elements of This Rule

Process for Announcing Purse Seine Fishery Closure

    Currently, NMFS estimates the number of fishing days spent on the 
high seas and in the U.S. EEZ by the U.S. purse seine fleet in each 
calendar year using logbooks and other available information. If NMFS 
determines that the fishing day limit is going to be reached in any 
given year, NMFS will issue a closure notice and U.S. purse seine 
vessels will be prohibited from fishing in those areas for the 
remainder of the calendar year. Existing regulations under 50 CFR 
300.223(a) establish that NMFS will publish the closure notice in the 
Federal Register at least seven calendar days in advance of the closure 
date. This proposed rule would modify the existing regulations.
    This proposed rule would amend the existing regulations to remove 
the requirement for NMFS to publish the fishery closure notice in the 
Federal Register seven days in advance of a closure. Instead, NMFS 
would publish the annual limits and estimates of the fishing effort on 
a NMFS web page on a periodic basis, and use the web page as well as 
direct email communication with vessel owners to provide notification 
of a fishery closure. NMFS would publish a notification of the fishery 
closure in the Federal Register as soon as possible. The details of 
this element of the proposed rule are included in the description of 
the proposed action section below. By reducing the administrative time 
necessary to publish in the Federal Register 7 days in advance of a 
closure and the specific time needed for advance notice to industry, 
NMFS would be able to more closely align the closure date to the date 
the limit is actually reached, thereby reducing the magnitude of 
overages (in the case of exceeding the limit upon the closure date) and 
underages (in the case of not reaching the limit upon the closure 
date).
    As stated in existing regulations at 50 CFR 300.223(a)(4), starting 
on the announced closure date, and for the remainder of calendar year, 
it would be prohibited for U.S. purse seine vessels to fish in the U.S. 
EEZ or the high seas, except that such vessels would not be prohibited 
from bunkering during the closure. This proposed rule would not affect 
the prohibitions in place once the U.S. EEZ or high seas is closed.

Daily Purse Seine Fishing Effort Reports

    The regulations at 50 CFR 300.218(g) states as follows: if directed 
by NMFS, the owner or operator of any fishing vessel of the United 
States equipped with purse seine gear must report to NMFS, in a 
specified format and manner, the activity of the vessel in the 
Convention Area \3\ (e.g., setting, transiting, searching), location 
and type of set, if a set was made during that day. NMFS has been 
directing vessel owners or operators to provide these daily purse seine 
fishing effort reports for a number of years in order to collect data 
to better track purse seine fishing effort limits. Because NMFS 
believes that these reports provide valuable information on purse seine 
fishing effort, NMFS is proposing to require vessel owners/operators to 
provide daily fishing effort reports (instead of only when directed by 
NMFS). However, the current directive to provide these reports requires 
vessel owners and operators to provide these reports continually, so in 
practice, this element of the rule would not affect what vessel owners 
and operators are currently doing.
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    \3\ This requirement does not apply to the area of overlapping 
jurisdiction between the WCPFC and the Inter-American Tropical Tuna 
Commission.
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Use of Framework Process To Adjust Catch and Effort Limits

    As discussed above, NMFS is implementing the overage provisions of 
CMM 2021-01 for the purse seine fishing effort limits and the longline 
bigeye tuna catch limits in the regulations at 50 CFR 300.223(a) and 50 
CFR 300.224(a), respectively. NMFS would adjust these limits downward 
in a given year to account for overages of the prior year's limits. The 
regulations at 50 CFR 300.227 set forth a framework process through 
which NMFS may specify particular WCPFC catch and effort limits on an 
annual basis. Under the process, NMFS may publish a notice of the catch 
or effort limit in the Federal Register for public comment instead of 
modifying existing codified regulations or issuing new regulations, 
which allows NMFS to implement such limits more quickly. Limits 
established under that process must remain in effect for less than one 
year. Under this proposed rule, NMFS would modify the regulations at 50 
CFR 300.227 so that adjustments to codified catch or fishing effort 
limits in the Convention Area on an annual basis would be made through 
the framework process specified in those regulations. NMFS would also 
clarify that limits established through that framework process must 
remain in effect for less than one year. This modification would allow 
NMFS to adjust existing catch and effort limits on an annual basis to 
account for overages of such limits in prior years.

The Action

    This proposed rule includes the following elements: (1) 
modification of purse seine fishing effort limits; (2) adjustment to 
the 2022 longline bigeye tuna catch limits; (3) modification of the 
process for closing the purse seine fishery once an effort limit is 
reached; (4) modification of the purse seine daily

[[Page 55771]]

fishing effort reporting requirements, and (5) modification of the 
regulations at 50 CFR 300.227 to include annual adjustments to existing 
catch and effort limits.

Purse Seine Fishing Effort Limits

    This proposed rule would establish a limit of 558 fishing days for 
the U.S. EEZ and 1,270 fishing days for the high seas for 2022 and 
subsequent years. These limits are subject to adjustment under the 
procedures in 300.227(f) for any overage of a previous year's limits.

2022 Longline Bigeye Tuna Catch Limit

    This proposed rule would adjust the longline bigeye tuna catch 
limits for 2022 to 3,358 mt. The limit for 2023 and future years would 
remain at 3,554 mt. That limit is subject to adjustment under the 
procedures in 200.227(f) for any overage of a previous year's limit.

Purse Seine Fishery Closure Procedure

    This proposed rule would amend the existing regulations at 50 CFR 
300.223(a)(3) to remove the requirement for NMFS to publish the fishery 
closure notice in the Federal Register 7 days in advance of a closure. 
NMFS intends to publish the annual limits and estimates of the fishing 
effort expended on a NMFS website and provide updates on a periodic 
basis. Under this proposed rule, once NMFS determines that a limit is 
expected to be reached, NMFS would post the notice on a NMFS web page 
\4\ announcing the fishery closure date and would also email notice of 
the closure date to affected vessel owners reducing the processing time 
for announcing the closure. NMFS also would publish the closure notice 
in the Federal Register, as soon as practicable. The closure would be 
effective upon the earlier of either (1) receipt by email of such 
notice, or (2) publication in the Federal Register.
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    \4\ See https://www.fisheries.noaa.gov/pacific-islands/commercial-fishing/fishing-effort-limits-purse-seine-western-and-central-pacific-ocean.
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    As stated in existing regulations at 50 CFR 300.223(a)(4), starting 
on the announced closure date, and for the remainder of calendar year, 
it would be prohibited for U.S. purse seine vessels to fish in the U.S. 
EEZ or the high seas, except that such vessels would not be prohibited 
from bunkering during the closure. This proposed rule would not affect 
the prohibitions in place once the U.S. EEZ or high seas is closed.

Changes to Daily Purse Seine Fishing Effort Reporting Requirements

    As described above, under this proposed rule, NMFS proposes to 
modify the language in 50 CFR 300.218(g) so that the daily purse seine 
fishing effort reporting would be required. However, the current 
directive to provide these reports requires vessel owners and operators 
to provide these reports continually, so in practice, this element of 
the rule would not affect what vessel owners and operators are 
currently doing.

Changes to the Regulations at 50 CFR 300.227

    Under this proposed rule, NMFS would modify the regulations at 50 
CFR 300.227 so that the framework process to issue catch and effort 
limits would be used to adjust codified catch and effort limits that 
implement WCPFC decisions, as appropriate. Under the process, NMFS 
would publish a notice of the adjusted catch or effort limit in the 
Federal Register for public comment instead of modifying existing 
codified regulations or issuing new regulations. NMFS would also modify 
the regulations at 50 CFR 300.227 to clarify that any limits 
established under the framework process must remain in effect for less 
than one year.

Classification

    The Administrator, Pacific Islands Region, NMFS, has determined 
that this proposed rule is consistent with the WCPFC Implementation Act 
and other applicable laws, subject to further consideration after 
public comment.

Coastal Zone Management Act (CZMA)

    NMFS determined that implementation of the purse seine fishing 
effort limits, modifications to the process for closing the fishery 
once an effort limit is reached, and modifications to the process 
related to collecting daily purse seine fishing effort reports are 
consistent to the maximum extent practicable with the enforceable 
policies of the approved coastal management program of American Samoa, 
the Commonwealth of the Northern Mariana Islands (CNMI), Guam, and the 
State of Hawaii. Determinations to Hawaii, American Samoa, CNMI and 
Guam were submitted on March 23, 2022, for review by the responsible 
state and territorial agencies under section 307 of the CZMA.
    The state of Hawaii responded by letter dated March 28, 2022, that 
for this particular proposal, because the U.S. WCPO purse seine fishery 
operates outside of the jurisdiction of Hawaii CZM Program enforceable 
policies, it would not be responding to the consistency determination. 
In addition, the state of Hawaii agreed to an alternative Federal 
consistency notification schedule that ended on the date of the March 
28, 2022, letter. CNMI provided concurrence with the consistency 
determination on April 28, 2022.
    NMFS determined that the U.S. longline bigeye tuna catch limit of 
3,554 mt was consistent to the maximum extent practicable with the 
enforceable policies of the approved coastal management program of 
American Samoa, CNMI, Guam, and the State of Hawaii in 2018 when it 
established this limit (83 FR 33851; July 18, 2018). NMFS received no 
objections from the state/territorial agencies on this determination. 
Because the adjustment to the limit under this proposed rule would not 
lead to any new effects on coastal areas or resources than what were 
evaluated in the 2018 consistency determinations, no new determinations 
have been prepared for this element of the proposed rule.
    Modifications to the framework process in the regulations at 50 CFR 
300.227 would be administrative in nature and not expected to cause any 
effects on coastal areas or resources.

Executive Order 12866

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

Regulatory Flexibility Act (RFA)

    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the RFA. The IRFA describes the economic 
impact this proposed rule, if adopted, would have on small entities. A 
description of the action, why it is being considered, and the legal 
basis for this action are contained in the SUMMARY section of the 
preamble. The analysis follows:
Estimated Number of Small Entities Affected
    For RFA purposes only, NMFS has established a small business size 
standard for businesses, including their affiliates, whose primary 
industry is commercial fishing (see 50 CFR 200.2). A business primarily 
engaged in commercial fishing (NAICS code 114111) is classified as a 
small business if it is independently owned and operated, is not 
dominant in its field of operation (including its affiliates), and has 
combined annual receipts not in excess of $11 million for all its 
affiliated operations worldwide.
    The proposed rule would apply to owners and operators of U.S. 
commercial fishing vessels used to fish for HMS in the Convention Area, 
including longline vessels (except those operating as part of the 
longline

[[Page 55772]]

fisheries of American Samoa, CNMI, or Guam) and purse seine vessels. 
The estimated number of affected fishing vessels is 151 longline and 15 
purse seine vessels, and is based on the number of vessels with those 
vessel types that hold WCPFC Area Endorsements, which are required to 
fish on the high seas of the Convention Area, as of May 2, 2022.
    Based on (limited) financial information about the affected fishing 
fleet, and using individual vessels as proxies for individual 
businesses, NMFS believes that all of the affected longline vessels and 
80 percent of the vessels in the purse seine fleet, are small entities 
as defined by the RFA; that is, they are independently owned and 
operated and not dominant in their fields of operation, and have annual 
receipts of no more than $11.0 million. Within the purse seine fleet, 
analysis of average revenue, by vessel, for 2019-2021 reveals that 
average annual revenue among vessels in the fleet was about $8 million 
(NMFS unpublished data combined with price data from https://www.ffa.int/node/425 and https://investor.thaiunion.com/raw_material.html accessed on March 23, 2022), and 12 participating 
vessels qualified as small entities, with estimated vessel revenue of 
less than $11 million (based on the average revenue across the most 
recent three years for which data is available).

Recordkeeping, Reporting, and Other Compliance Requirements

    The elements of this proposed rule are described earlier in the 
preamble. The classes of small entities subject to the requirements and 
the types of professional skills necessary to fulfill the requirements 
are listed below for each element:
(1) Purse Seine Fishing Effort Limits
    There would be annual limits of 1,270 and 558 fishing days on the 
high seas and in the U.S. EEZ, respectively, in the Convention Area.
    Fulfillment of this element's requirements is not expected to 
necessitate any professional skills that the vessel owners and 
operators do not already possess. The costs of complying with the 
requirements are described below to the extent possible.
    Regarding the fishing effort limits, if and when the fishery on the 
high seas or in the U.S. EEZ is closed as a result of a limit being 
reached in any year, owners and operators of U.S. purse seine vessels 
would have to cease fishing in that area for the remainder of the 
calendar year. Closure of the fishery in either of those areas could 
thereby result in foregone fishing opportunities and associated 
economic losses if the area contains preferred fishing grounds during 
such a closure. Historical fishing rates in the two areas give a rough 
indication of the likelihood of the limits being reached.
    From 2009 through 2021, no more than 41 percent of the proposed 
limit of 558 fishing days was ever used in the U.S. EEZ. This history 
suggests a relatively low likelihood of the proposed EEZ limit being 
reached in a given year. Furthermore, in 2018, when separate limits 
were established for the EEZ and high seas, fishing day usage in the 
U.S. EEZ declined, but did not differ significantly from previous 
years. Approximately 60 percent of the fleet is authorized to fish in 
the U.S. EEZ. Six of the 13 vessels currently licensed under the South 
Pacific Tuna Treaty (SPTT) \5\ have fishery endorsements on their U.S. 
Coast Guard Certificates of Documentation, which are required to fish 
in the U.S. EEZ, and both of the other two purse seine vessels that 
hold WCPFC Area Endorsements but do not have South Pacific Tuna Treaty 
licenses have fishery endorsements. With a separate limit for the U.S. 
EEZ, these eight vessels of the fleet could take advantage of fishing 
in the U.S. EEZ more than they have in the past if the high seas are 
closed to fishing in a given year.
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    \5\ The majority of U.S. purse seine fishing activity in the 
Convention Area takes place in the waters of Pacific Island Parties 
to the SPTT (PIPs), pursuant to the terms of the SPTT.
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    Regarding effort in the high seas from 2009 through 2021, between 
33 and 145 percent of the proposed limit of 1,270 fishing days was 
used, and at least 100 percent was used in seven of the thirteen years. 
In 3 years, 2015, 2016, and 2019 the high seas and U.S EEZ was closed 
for part of the year (from June 15 to December 31 in 2015, from 
September 2 to December 31 in 2016, and from October 9-November 28 and 
from December 9 to December 31 in 2019) and in 2018, the high seas was 
closed for part of the year (from September 18 to December 31), so more 
fishing effort might have occurred in those 4 years were there no 
limits. In the years that both the high seas and U.S. EEZ were closed, 
it is possible that some or all of any additional fishing effort might 
have occurred in the U.S. EEZ rather than on the high seas. Given that 
the fleet generally uses far fewer fishing days in the U.S. EEZ, it is 
more likely that most or all of any additional effort would have 
occurred on the high seas instead of in the U.S. EEZ. This history 
suggests a substantial likelihood of the proposed high seas limit being 
reached in a given year. However, the fleet has undergone a steep 
reduction in size in recent years, and is currently at 15 vessels, a 
level that is less than half its 2019 size of 33 vessels. NMFS believes 
the vessels that were previously in the fleet reflagged to other 
nations for business reasons. This reduction in fleet size increases 
the number of fishing days available on the high seas for the remaining 
vessels, and could reduce the likelihood of the proposed high seas 
limit being reached in any a given year. In 2021, 18 purse seine 
vessels fished in the Convention Area, and fishing effort in the high 
seas was 773 fishing days, well below the proposed separate high seas 
limit of 1,270 fishing days, suggesting a lower likelihood of the 
proposed limit being reached in any a given year. However, the separate 
limits that would be implemented under this proposed rule would remove 
the operational flexibility provided under the combined limits 
currently in place and increase the possibility of a limit being 
reached or reached earlier in the year.
    Two factors could have a substantial influence on the amount of 
fishing effort in the U.S. EEZ and on the high seas in a given year: 
First, the number of fishing days available in foreign waters (the 
fleet's main fishing grounds) pursuant to the SPTT will influence the 
incentive to fish outside those waters, including the U.S. EEZ and high 
seas. Second, El Ni[ntilde]o--Southern Oscillation (ENSO) conditions 
will influence where the best fishing grounds are.
    Regarding fishing opportunities in foreign waters, in December 
2016, the United States and PIPs agreed upon a revised SPTT, and under 
this agreement U.S. purse seine fishing businesses can purchase fishing 
days in the EEZs of the PIPs. There are limits on the number of such 
``upfront'' fishing days that may be purchased. These limits can 
influence the amount of fishing in other areas, such as the U.S. EEZ 
and the high seas, as well as the eastern Pacific Ocean (EPO). For 
example, if the number of available upfront fishing days is relatively 
small, fishing effort in the U.S. EEZ and/or high seas might be 
relatively great. In fact, the number of upfront days available for the 
Kiribati EEZ, which has traditionally constituted important fishing 
grounds for the U.S. fleet, is notably small--only 300 fishing days per 
year. However, the SPTT provides for U.S. purse seine fishing 
businesses to purchase ``additional'' fishing days through direct 
bilateral agreements with the PIPs. NMFS cannot project how many 
additional days will be purchased in any given year, so

[[Page 55773]]

cannot gauge how the limits on upfront days might influence fishing 
effort in the U.S. EEZ or on the high seas. Limits on upfront days are 
therefore not considered here any further.
    Regarding ENSO conditions, the eastern areas of the WCPO tend to be 
comparatively more attractive to the U.S. purse seine fleet during El 
Ni[ntilde]o events, when warm surface water spreads from the western 
Pacific to the eastern Pacific and large, valuable yellowfin tuna 
become more vulnerable to purse seine fishing and trade winds lessen in 
intensity. Consequently, the U.S. EEZ and high seas, much of which is 
situated in the eastern range of the fleet's fishing grounds, is likely 
to be more important fishing grounds to the fleet during El Ni[ntilde]o 
events (as compared to neutral or La Ni[ntilde]a events). This is 
supported by there being a statistically significant correlation 
between annual average per-vessel fishing effort in the ELAPS and the 
Oceanic Ni[ntilde]o Index, a common measure of ENSO conditions, from 
2001-2021.
    El Ni[ntilde]o conditions were present in 2015 and in the first 
half of 2016, and might have contributed to the relatively high rates 
of fishing in the U.S. EEZ and high seas in those years. As of March 
10, 2022, La Ni[ntilde]a conditions were present, and the National 
Weather Service forecasts that La Nina will continue with about a 50 
percent probability during June--August 2022, with a 40-50% chance of 
La Nina or ENSO-neutral conditions thereafter. Thus ENSO conditions 
might have a negative influence on fishing in the U.S. EEZ and the high 
seas in 2022. The influence of ENSO conditions on fishing effort in 
future years cannot be predicted with any certainty.
    Another potentially important factor is that the U.S. EEZ and high 
seas limits would be competitive limits, so their establishment could 
cause a ``race to fish'' in the two areas. That is, vessel operators 
might seek to take advantage of the limited number of fishing days 
available in the areas before the limits are reached, and fish harder 
in the high seas or the U.S. EEZ than they would if there were no 
limits or if there were a combined U.S. EEZ and high seas limit. On the 
one hand, any such race-to-fish effect might be reflected in the 
history of fishing in the high seas and U.S. EEZ, described above. On 
the other hand, anecdotal information from the fishing industry 
suggests that the limits might have been internally allocated by the 
fleet, which might have tempered any race to fish. It is not known 
whether the industry intends to internally allocate the proposed 
limits.
    In summary, although difficult to predict, either the U.S. EEZ or 
high seas limits could be reached in any given year, especially the 
high seas limits. If either limit is reached in a given year, the fleet 
would be prohibited from fishing in that area for the remainder of the 
calendar year.
    The closure of any fishing grounds for any amount of time can be 
expected to bring adverse impacts to affected entities (e.g., because 
the open area might, during the closed period, be less productive than 
the closed area, and vessels might use more fuel and spend more time 
having to travel to open areas). The severity of the impacts of a 
closure would depend greatly on the length of the closure and where the 
most favored fishing grounds are during the closure. A study by NMFS 
(Chan, V. and D. Squires. 2016. Analyzing the economic impacts of the 
2015 ELAPS closure. NMFS Internal Report) estimated that the overall 
losses to the combined sectors of the vessels, canneries and vessel 
support companies from the 2015 ELAPS closure ranged from $11 million 
and $110 million depending on the counterfactual period considered. 
These results suggest that there were impacts from the ELAPS closure on 
the American Samoa economy through impacts to the canneries and vessel 
support companies and a connection between U.S. purse seine vessels and 
the broader American Samoa economy. If there was a closure of the U.S. 
EEZ or high seas in the WCPO, it is likely there would be impacts to 
the American Samoa economy though the magnitude would depend on the 
length of the closure, and whether both or just one of the areas was 
closed to fishing.
    If either the U.S. EEZ or high seas is closed, possible next-best 
opportunities for U.S. purse seine vessels fishing in the WCPO include 
fishing in the other of the two areas, fishing in foreign EEZs inside 
the Convention Area, fishing outside the Convention Area in EPO, and 
not fishing.
    With respect to fishing in the U.S. EEZ or on the high seas: If the 
U.S. EEZ were closed, the high seas would be available to the fleet 
until its limit is reached. If the high seas were closed, the U.S. EEZ 
would be available until its limit is reached, but only for the vessels 
with fishery endorsements on their Certificates of Documentation 
(currently 8, including 6 vessels with SPTT licenses and two additional 
vessels without).
    With respect to fishing in the Convention Area in foreign EEZs: As 
described above, under the SPTT the fleet might have substantial 
fishing days available in the PIP EEZs that dominate the WCPO, but it 
is not possible to predict how many fishing days will be available to 
the fleet as a whole or to individual fishing businesses.
    With respect to fishing in the EPO: The fleet has generally 
increased its fishing operations in the EPO since 2014, and as of 2021, 
there were 13 purse seine vessels in the WCPO fleet that are also 
listed on the Inter-American Tropical Tuna Commission (IATTC) Vessel 
Register. In order to fish in the EPO, a vessel must be on the IATTC's 
Regional Vessel Register and categorized as active (50 CFR 300.22(b)), 
which involves fees of about $14.95 per cubic meter of well space per 
year (e.g., a vessel with 1,200 m\3\ of well space would be subject to 
annual fees of $17,940). (As an exception to this rule, an SPTT-
licensed vessel is allowed to make one fishing trip in the EPO each 
year without being categorized as active on the IATTC Regional Vessel 
Register. The trip must not exceed 90 days in length, and there is an 
annual limit of 32 such trips for the entire SPTT-licensed fleet (50 
CFR 300.22(b)(1)).) The number of U.S. purse seine vessels in the WCPO 
fleet that have opted to be categorized as active on the IATTC Regional 
Vessel Register has increased in the last few years from zero to 17, 
probably largely a result of constraints on fishing days in the WCPO 
and/or uncertainty in future access arrangements under the SPTT. This 
suggests an increasing attractiveness of fishing in the EPO, in spite 
of the costs associated with doing so. However, vessels probably will 
not have the opportunity to fish in the EPO year-round. To implement a 
recent decision of the IATTC, NMFS has published a final rule (87 FR 
40731, July 8, 2022) that requires purse seine vessels to choose 
between two 72-day EPO fishing prohibition periods each year: July 29-
October 8 or November 9-January 19. Thus, the opportunity to fish in 
the EPO might be constrained, depending on when the U.S. EEZ and/or 
high seas in the WCPFC Area is closed, and which EPO closure period a 
given vessel operator chooses.
    Not fishing at all during a closure of the U.S. EEZ or high seas 
would mean a loss of any revenues from fishing. However, many of the 
vessels' variable operating costs would be avoided in that case, and it 
is possible that for some vessels a portion of the time might be used 
for productive activities like vessel and equipment maintenance.
    The opportunity costs of engaging in next-best opportunities in the 
event of a closure are not known, so the potential impacts cannot be 
quantified. However,

[[Page 55774]]

to give an indication of the magnitude of possible economic impacts to 
the fleet and an upper bound of those impacts, information on revenue 
per day is provided here.
    The most recent 3 years for which catch estimates for the U.S. WCPO 
purse seine fleet are available are 2019-2021. Those estimates, 
adjusted to an indicative fleet size of 15 vessels, equate to annual 
average catches of skipjack tuna, yellowfin tuna, and bigeye tuna of 
68,818 mt, 8,737 mt, and 6,087 mt, respectively, or 83,641 mt in total. 
Applying the 2020 Bangkok cannery price of $1,359 per mt for skipjack 
tuna and bigeye tuna and a 2019 Bangkok cannery price of $1,682 mt for 
yellowfin tuna (FFA 2020), the value of annual fleet-wide catches at 
2019-2021 average levels would be about $116 million. It should be 
noted that cannery prices are fairly volatile; for example, cannery 
prices in 2017 were substantially higher than prices during the 
previous three years.
    In addition to the effects described above, the proposed limits 
could affect the temporal distribution of fishing effort in the U.S. 
purse seine fishery. Since the limits would apply fleet-wide--that is, 
they would not be allocated to individual vessels--vessel operators 
might have an incentive to fish harder in the affected areas earlier in 
each calendar year than they otherwise would. To the extent such 
temporal shifts occur, they could affect the seasonal timing of fish 
catches and deliveries to canneries. The timing of cannery deliveries 
by the U.S. fleet alone (as it might be affected by a race to fish in 
the EEZ or high seas) is unlikely to have an appreciable impact on 
prices because many canneries in the Asia-Pacific region and elsewhere 
buy from the fleets of multiple nations. A race to fish could bring 
costs to affected entities if it causes vessel operators to forego 
vessel maintenance in favor of fishing or to fish in weather or ocean 
conditions that they otherwise would not. This could bring costs in 
terms of the health and safety of the crew as well as the economic 
performance of the vessel.
(2) Longline Bigeye Tuna Catch Limits
    This element of the proposed rulewould not establish any new 
reporting or recordkeeping requirements. The new proposed compliance 
requirement would be for affected vessel owners and operators to cease 
retaining, landing, and transshipping bigeye tuna caught with longline 
gear in the Convention Area if and when the bigeye tuna catch limit of 
3,358 mt (3,554 mt reduced by the 196 mt overage from 2021) is reached 
in 2022, for the remainder of the calendar year, subject to the 
exceptions specified at 50 CFR 300.224. These exceptions include the 
following: bigeye tuna landed in Guam, American Samoa, or CNMI; bigeye 
tuna caught by vessels with American Samoa Longline Limited Access 
Permits; and bigeye tuna caught by vessels in specified fishing 
agreements under 50 CFR 665.801.
    Fulfillment of this requirement is not expected to require any 
professional skills that the vessel owners and operators do not already 
possess. The costs of complying with this requirement are described 
below to the extent possible.
    Complying with this element of the proposed rule could cause 
foregone fishing opportunities and result in associated economic losses 
in the event that the bigeye tuna catch limit is reached in 2022 and 
the restrictions on retaining, landing, and transshipping bigeye tuna 
are imposed for a portion of that year. These costs cannot be projected 
quantitatively with any certainty. The proposed annual limit of 3,358 
mt can be compared to catches in 2005-2008, before limits were in 
place. The average annual catch in that period was 4,709 mt. Based on 
that history, as well as fishing patterns in 2009-2021, when limits 
were in place, there appears to be a relatively high likelihood of the 
proposed limits being reached in 2022. In 2019, for example, which saw 
exceptionally high catches of bigeye tuna, the limit of 3,554 mt was 
estimated to have been reached by, and the fishery was closed on, July 
27 (see temporary rule published July 24, 2019; 84 FR 35568). In 2020, 
the limit of 3,554 mt was estimated to have been reached by September 
1, 2020, and in 2021, the limit of 3,554 mt was estimated to have been 
reached by September 6, 2021. Thus, if bigeye tuna catch patterns in 
2022 are like those in 2005-2008, the limit would be reached in the 
fourth quarter of the year, and if they are like those in 2019, 2020, 
or 2021, the limit would be reached in the third quarter of the year.
    If the bigeye tuna limit is reached before the end of 2022 and the 
Convention Area longline bigeye tuna fishery is consequently closed for 
the remainder of the calendar year, it can be expected that affected 
vessels would shift to the next most profitable fishing opportunity 
(which might be not fishing at all). Revenues from that next best 
alternative activity reflect the opportunity costs associated with 
longline fishing for bigeye tuna in the Convention Area. The economic 
cost of the proposed rule would not be the direct losses in revenues 
that would result from not being able to fish for bigeye tuna in the 
Convention Area, but rather the difference in benefits derived from 
that activity and those derived from the next best activity. The 
economic cost of the proposed rule on affected entities is examined 
here by first estimating the direct losses in revenues that would 
result from not being able to fish for bigeye tuna in the Convention 
Area as a result of the catch limit being reached. Those losses 
represent the upper bound of the economic cost of the proposed rule on 
affected entities. Potential next-best alternative activities that 
affected entities could undertake are then identified in order to 
provide a (mostly qualitative) description of the degree to which 
actual costs would be lower than that upper bound.
    Upper bounds on potential economic costs can be estimated by 
examining the projected value of longline landings from the Convention 
Area that would not be made as a result of reaching the limit. For this 
purpose, it is assumed that, absent this proposed rule, bigeye tuna 
catches in the Convention Area in 2022 would be 3,554 mt, the bigeye 
tuna limit currently in place. Under this scenario, imposition of a 
limit of 3,358 mt would result in 6 percent less bigeye tuna being 
caught in 2022 than under no action. In the deep-set fishery, catches 
of marketable species other than bigeye tuna would likely be affected 
in a similar way if vessels do not shift to alternative activities. 
Assuming for the moment that ex-vessel prices would not be affected by 
a fishery closure, under the proposed rule, revenues in 2022 to 
entities that participate exclusively in the deep-set fishery would be 
approximately 6 percent less than under no action. Average annual ex-
vessel revenues (from all species) per mt of bigeye tuna caught during 
2018-2020 were about $13,740/mt (in 2020 dollars, derived from the 
latest available annual report on the pelagic fisheries of the western 
Pacific Region (Western Pacific Regional Fishery Management Council, 
2021, Annual Stock Assessment and Fishery Evaluation Report: 2020. 
Honolulu, Western Pacific Fishery Management Council; https://www.wpcouncildata.org/pelagicsafereport/). Applying the average ex-
vessel revenues (from all species) of $13,740 per mt of bigeye tuna 
caught, the estimated reductions in ex-vessel revenue from a 196 mt 
decrease in the bigeye catch limit would be approximately $14,000 for 
2022 or on average a reduction of $95 per vessel.
    In the shallow-set fishery, affected entities would bear limited 
costs in the

[[Page 55775]]

event of the limit being reached (but most affected entities also 
participate in the deep-set fishery and might bear costs in that 
fishery, as described below). The cost would be about equal to the 
revenues lost from not being able to retain or land bigeye tuna 
captured while shallow-setting in the Convention Area, or the cost of 
shifting to shallow-setting in the EPO, which is to the east of 150 
degrees W. longitude, whichever is less. In the fourth calendar 
quarters of 2019-2021, almost all shallow-setting effort took place in 
the EPO, and 91 percent of bigeye tuna catches were made there, so the 
cost of a bigeye tuna fishery closure to shallow-setting vessels would 
appear to be very limited. During 2019-2021, the shallow-set fishery 
caught an average of 15 mt of bigeye tuna per year from the Convention 
Area. If the proposed bigeye tuna catch limit is reached even as early 
as July 31 in 2022, the Convention Area shallow-set fishery would have 
caught at that point, based on 2019-2022 data, on average, 94 percent 
of its average annual bigeye tuna catches. Imposition of the landings 
restriction at that point in 2022 would result in the loss of revenues 
from approximately 0.9 mt (6 percent of 15 mt) of bigeye tuna, which, 
based on recent ex-vessel prices, would be worth no more than $5,700. 
Thus, expecting about 13 vessels to engage in the shallow-set fishery 
(the annual average in 2019-2021), the average of those potentially 
lost annual revenues would be no more than $436 per vessel. The 
remainder of this analysis focuses on the potential costs of compliance 
in the deep-set fishery.
    It should be noted that the impacts on affected entities' profits 
would be less than impacts on revenues when considering the costs of 
operating vessels, because costs would be lower if a vessel ceases 
fishing after the catch limit is reached. Variable costs can be 
expected to be affected roughly in proportion to revenues, as both 
variable costs and revenues would stop accruing once a vessel stops 
fishing. But affected entities' costs also include fixed costs, which 
are borne regardless of whether a vessel is used to fish--e.g., if it 
is tied up at the dock during a fishery closure. Thus, profits would 
likely be adversely impacted proportionately more than revenues.
    As stated previously, actual compliance costs for a given entity 
might be less than the upper bounds described above, because ceasing 
fishing would not necessarily be the most profitable alternative 
opportunity when the catch limit is reached. Two alternative 
opportunities that are expected to be attractive to affected entities 
include: (1) deep-set longline fishing for bigeye tuna in the 
Convention Area in a manner such that the vessel is considered part of 
the longline fishery of American Samoa, Guam, or the CNMI; and (2) 
deep-set longline fishing for bigeye tuna and other species in the EPO. 
These two opportunities are discussed in detail below. Four additional 
opportunities are: (3) shallow-set longline fishing for swordfish (for 
deep-setting vessels that would not otherwise do so), (4) deep-set 
longline fishing in the Convention Area for species other than bigeye 
tuna, (5) working in cooperation with vessels operating as part of the 
longline fisheries of the Participating Territories--specifically, 
receiving transshipments at sea from them and delivering the fish to 
the Hawaii market, and (6) vessel repair and maintenance. A study by 
NMFS of the effects of the WCPO bigeye tuna longline fishery closure in 
2010 (Richmond, L., D. Kotowicz, J. Hospital and S. Allen, 2015, 
Monitoring socioeconomic impacts of Hawai`i's 2010 bigeye tuna closure: 
Complexities of local management in a global fishery, Ocean & Coastal 
Management 106:87-96) did not identify the occurrence of any 
alternative activities that vessels engaged in during the closure, 
other than deep-setting for bigeye tuna in the EPO, vessel maintenance 
and repairs, and granting lengthy vacations to employees. Based on 
those findings, NMFS expects that alternative opportunities (3), (4), 
and (5) are probably unattractive relative to the first two 
alternatives, and are not discussed here in any further detail. NMFS 
recognizes that vessel maintenance and repairs and granting lengthy 
vacations to employees are two alternative activities that might be 
taken advantage of if the fishery is closed, but no further analysis of 
their mitigating effects is provided here, because costs would likely 
be similar or greater of those anticipated if the vessel chose to cease 
fishing.
    Before examining in detail the two potential alternative fishing 
opportunities that would appear to be the most attractive to affected 
entities, it is important to note that under the proposed rule, once 
the limit is reached and the WCPO bigeye tuna fishery is closed, 
fishing with deep-set longline gear both inside and outside the 
Convention Area during the same trip would be prohibited (except in the 
case of a fishing trip that is in progress when the limit is reached 
and the restrictions go into effect). For example, after the 
restrictions go into effect, during a given fishing trip, a vessel 
could be used for longline fishing for bigeye tuna in the EPO or for 
longline fishing for species other than bigeye tuna in the Convention 
Area, but not for both. This reduced operational flexibility would 
bring costs, since it would constrain the potential profits from 
alternative opportunities. Those costs cannot be quantified.
    A vessel could take advantage of the first alternative opportunity 
(deep-setting for bigeye tuna in a manner such that the vessel is 
considered part of the longline fishery of one of the three U.S. 
Participating Territories), by three possible methods: a) landing the 
bigeye tuna in one of the three Participating Territories, b) holding 
an American Samoa Longline Limited Access Permit, or c) being 
considered part of a Participating Territory's longline fishery, by 
agreement with one or more of the three Participating Territories under 
the regulations implementing Amendment 7 to the Pelagics FEP (50 CFR 
665.819). In the first two circumstances, the vessel would be 
considered part of the longline fishery of the Participating Territory 
only if the bigeye tuna were not caught in the portion of the U.S. EEZ 
around the Hawaiian Islands and were landed by a U.S. vessel operating 
in compliance with a permit issued under the regulations implementing 
the Pelagics FEP or the Fishery Management Plan for U.S. West Coast 
Fisheries for Highly Migratory Species.
    With respect to the first method of engaging in alternative 
opportunity 1 (1.a.) (landing the bigeye tuna in one of the 
Participating Territories), there are three potentially important 
constraints. First, whether the fish are landed by the vessel that 
caught the fish or by a vessel to which the fish were transshipped, the 
costs of a vessel transiting from the traditional fishing grounds in 
the vicinity of the Hawaiian Archipelago to one of the Participating 
Territories would be substantial. Second, none of these three locales 
has large local consumer markets to absorb substantial additional 
landings of fresh sashimi-grade bigeye tuna. Third, transporting the 
bigeye tuna from these locales to larger markets, such as markets in 
Hawaii, the U.S. west coast, or Japan, would bring substantial 
additional costs and risks. These cost constraints suggest that this 
alternative opportunity has limited potential to mitigate the economic 
impacts of the proposed rule on affected small entities.
    The second method of engaging in the first alternative opportunity 
(1.b.) (having an American Samoa Longline Limited Access Permit), would 
be

[[Page 55776]]

available only to the subset of the Hawaii longline fleet that has both 
Hawaii and American Samoa longline permits (dual permit vessels). 
Vessels that do not have both permits could obtain them if they meet 
the eligibility requirements and pay the required costs. For example, 
the number of dual permit vessels increased from 12 in 2009, when the 
first WCPO bigeye tuna catch limit was established, to 27 from 2018-
2020, and was 25 in 2021. The previously cited NMFS study of the 2010 
fishery closure (Richmond et al. 2015) found that bigeye tuna landings 
of dual permit vessels increased substantially after the start of the 
closure on November 22, 2010, indicating that this was an attractive 
opportunity for dual permit vessels, and suggesting that those entities 
might have benefitted from the catch limit and the closure.
    The third method of engaging in the first alternative opportunity 
(1.c.) (entering into an Amendment 7 agreement), was also available in 
2011-2021 (in 2011-2013, under section 113(a) of Pub. L. 112-55, 125 
Stat. 552 et seq., the Consolidated and Further Continuing 
Appropriations Act, 2012, continued by Pub. L. 113-6, 125 Stat. 603, 
section 110, the Department of Commerce Appropriations Act, 2013; 
hereafter, ``section 113(a)''). As a result of agreements that were in 
place in 2011-2014, the WCPO bigeye tuna fishery was not closed in any 
of those years. In 2015-2019 the fishery was closed but then reopened 
when agreements went into effect. Agreements were also in place in 2020 
and 2021. The fishery did not close in 2020, but the bigeye catch limit 
was exceeded in 2021. Participation in an Amendment 7 agreement would 
likely not come without costs to fishing businesses. As an indication 
of the possible cost, the terms of the agreement between American Samoa 
and the members of the Hawaii Longline Association (HLA) in effect in 
2011 and 2012 included payments totaling $250,000 from the HLA to the 
Western Pacific Sustainable Fisheries Fund, equal to $2,000 per vessel. 
It is not known how the total cost was allocated among the members of 
the HLA, so it is possible that the owners of particular vessels paid 
substantially more than or less than $2,000.
    The second alternative opportunity (2) (deep-set fishing for bigeye 
tuna in the EPO), would be an option for affected entities only if it 
is allowed under regulations implementing the decisions of the IATTC. 
NMFS has issued a final rule to implement the IATTC's most recent 
resolution on the management of tropical tuna stocks (87 FR 40731, July 
8, 2022). The proposed rule would establish an annual limit of 750 mt 
on the catch of bigeye tuna in the EPO by vessels at least 24m in 
length per calendar year. Annual longline bigeye tuna catch limits have 
been in place for the EPO in most years since 2004. Since 2009, when 
the limit was 500 mt, it was reached in 2013 (November 11), 2014 
(October 31), and 2015 (August 12). In 2016 NMFS forecasted that the 
limit would be reached July 25 and subsequently closed the fishery, but 
later determined that the catch limit had not been reached and re-
opened the fishery on October 4, 2016 (81 FR 69717). In 2017, NMFS 
forecasted that the limit would be reached by September 8 and 
subsequently closed the fishery (82 FR 41562). The limit was not 
reached in 2018-2021.
    The highly seasonal nature of bigeye tuna catches in the EPO and 
the relatively high inter-annual variation in catches prevents NMFS 
from making a useful prediction of whether and when the EPO limit in 
2022 is likely to be reached. If it is reached, this alternative 
opportunity would not be available for large longline vessels, which 
constitute about a quarter of the fleet.
    Historical fishing patterns can provide an indication of the 
likelihood of affected entities making use of the opportunity of deep-
setting in the EPO in the event of a closure in the WCPO. The 
proportion of the U.S. fishery's annual bigeye tuna catches that were 
captured in the EPO from 2005 through 2008 ranged from 2 percent to 22 
percent, and averaged 11 percent. In 2005-2007, that proportion ranged 
from 2 percent to 11 percent, and may have been constrained by the 
IATTC-adopted bigeye tuna catch limits established by NMFS (no limit 
was in place for 2008). Prior to 2009, most of the U.S. annual bigeye 
tuna catch by longline vessels in the EPO typically was made in the 
second and third quarters of the year; in 2005-2008 the percentages 
caught in the first, second, third, and fourth quarters were 14, 33, 
50, and 3 percent, respectively. These data demonstrate two historical 
patterns--that relatively little of the bigeye tuna catch in the 
longline fishery was typically taken in the EPO (11 percent in 2005-
2008, on average), and that most EPO bigeye tuna catches were made in 
the second and third quarters, with relatively few catches in the 
fourth quarter when the proposed catch limit would most likely be 
reached. These two patterns suggest that there could be substantial 
costs for at least some affected entities that shift to deep-set 
fishing in the EPO in the event of a closure in the WCPO. On the other 
hand, fishing patterns since 2008 suggest that a substantial shift in 
deep-set fishing effort to the EPO could occur. In 2009, 2010, 2011, 
2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020 and 2021 the 
proportions of the fishery's annual bigeye tuna catches that were 
captured in the EPO were about 16, 27, 22, 18, 35, 35, 46, 36, 48, 42, 
33, 29 and 28 percent, respectively, and most bigeye tuna catches in 
the EPO were made in the latter half of the calendar years.
    The NMFS study of the 2010 closure (Richmond et al. 2015) found 
that some businesses--particularly those with smaller vessels--were 
less inclined than others to fish in the EPO during the closure because 
of the relatively long distances that would need to be travelled in the 
relatively rough winter ocean conditions. The study identified a number 
of factors that likely made fishing in the EPO less lucrative than 
fishing in the WCPO during that part of the year, including fuel costs 
and the need to limit trip length in order to maintain fish quality and 
because of limited fuel storage capacity.
    In addition to affecting the volume of landings of bigeye tuna and 
other species, the proposed catch limits could affect fish prices, 
particularly during a fishery closure. Both increases and decreases 
appear possible. After a limit is reached and landings from the WCPO 
are prohibited, ex-vessel prices of bigeye tuna (e.g., that are caught 
in the EPO or by vessels in the longline fisheries of the three U.S. 
Participating Territories), as well as of other species landed by the 
fleet, could increase as a result of the constricted supply. This would 
mitigate economic losses for vessels that are able to continue fishing 
and landing bigeye tuna during the closure. For example, the NMFS study 
of the 2010 closure (Richmond et al. 2015) found that ex-vessel prices 
during the closure in December were 50 percent greater than the average 
during the previous five Decembers. (It is emphasized that because it 
was an observational study, neither this nor other observations of what 
occurred during the closure can be affirmatively linked as effects of 
the fishery closure.)
    Conversely, a WCPO bigeye tuna fishery closure could cause a 
decrease in ex-vessel prices of bigeye tuna and other products landed 
by affected entities if the interruption in the local supply prompts 
the Hawaii market to shift to alternative (e.g., imported) sources of 
bigeye tuna. Such a shift could be temporary--that is, limited to 
2022--or it could lead to a more permanent change in the market (e.g., 
as

[[Page 55777]]

a result of wholesale and retail buyers wanting to mitigate the 
uncertainty in the continuity of supply from the Hawaii longline 
fisheries). In the latter case, if locally caught bigeye tuna fetches 
lower prices because of stiffer competition with imported bigeye tuna, 
then ex-vessel prices of local product could be depressed indefinitely. 
The NMFS study of the 2010 closure (Richmond et al. 2015) found that a 
common concern in the Hawaii fishing community prior to the closure in 
November 2010 was retailers having to rely more heavily on imported 
tuna, causing imports to gain a greater market share in local markets. 
The study found this not to have been borne out, at least not in 2010, 
when the evidence gathered in the study suggested that few buyers 
adapted to the closure by increasing their reliance on imports, and no 
reports or indications were found of a dramatic increase in the use of 
imported bigeye tuna during the closure. The study concluded, however, 
that the 2010 closure caused buyers to give increased consideration to 
imports as part of their business model, and it was predicted that tuna 
imports could increase during any future closure. To the extent that 
ex-vessel prices would be reduced by this action, revenues earned by 
affected entities would be affected accordingly, and these impacts 
could occur both before and after the limit is reached, and as 
described above, possibly after 2022.
    The potential economic effects identified above would vary among 
individual business entities, but it is not possible to predict the 
range of variation. Furthermore, the impacts on a particular entity 
would depend on both that entity's response to the proposed rule and 
the behavior of other vessels in the fleet, both before and after the 
catch limit is reached. For example, the greater the number of vessels 
that take advantage--before the limit is reached--of the first 
alternative opportunity (1), fishing as part of one of the 
Participating Territory's fisheries, the lower the likelihood that the 
limit would be reached. The fleet's behavior in 2011 and 2012 is 
illustrative. In both those years, most vessels in the Hawaii fleet 
were included in a section 113(a) arrangement with the government of 
American Samoa, and as a consequence, the U.S. longline catch limit was 
not reached in either year. Thus, none of the vessels in the fleet, 
including those not included in the section 113(a) arrangements, were 
prohibited from fishing for bigeye tuna in the Convention Area at any 
time during those two years. The fleet's experience in 2010 (before 
opportunities under section 113(a) or Amendment 7 to the Pelagics FEP 
were available) provides another example of how economic impacts could 
be distributed among different entities. In 2010 the limit was reached 
and the WCPO bigeye tuna fishery was closed on November 22. As 
described above, dual permit vessels were able to continue fishing 
outside the U.S. EEZ around the Hawaiian Archipelago and benefit from 
the relatively high ex-vessel prices that bigeye tuna fetched during 
the closure.
    In summary, based on potential reductions in ex-vessel revenues, 
NMFS has estimated that the upper bound of potential economic impacts 
of the proposed rule on affected longline fishing entities could be 
roughly $531 per vessel per year, on average. The actual impacts to 
most entities are likely to be substantially less than those upper 
bounds, and for some entities the impacts could be neutral or positive 
(e.g., if one or more Amendment 7 agreements are in place in 2022 and 
the terms of the agreements are such that the U.S. longline fleet is 
effectively unconstrained by the catch limits).
(3) Daily Purse Seine Fishing Effort Reports
    This element of the proposed rule would require submission of the 
existing ``Daily purse seine fishing effort reports.'' Fulfillment of 
this element's proposed requirements is not expected to necessitate any 
professional skills that the vessel owners and operators do not already 
possess. NMFS has intermittently directed vessel owners and operators 
to provide this information since September 6, 2018. This modification 
is not expected to change costs of compliance that have been previously 
analyzed (see 83 FR 33851; July 18, 2018). The estimated cost and 
burden of this reporting requirement is discussed further in the 
Paperwork Reduction Act (PRA) section below.
(4) Purse Seine Fishery Closure Notification
    This element of the proposed rule would not establish any new 
reporting or recordkeeping requirements nor is it expected to change 
the costs of compliance.
(5) Changes to the Regulations at 50 CFR 300.227
    This element of the proposed rule would not establish any new 
reporting or recordkeeping requirements nor is it expected to change 
the costs of compliance.

Disproportionate Impacts

    There would be no disproportionate economic impacts between small 
and large entities operating vessels resulting from this rule. 
Furthermore, there would be no disproportionate economic impacts based 
on vessel size, gear or homeport.

Duplicating, Overlapping, and Conflicting Federal Regulations

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

Alternatives to the Proposed Rule

    NMFS has sought to identify alternatives that would minimize the 
proposed rule's economic impacts on small entities (``significant 
alternatives''). Taking no action, where no action is defined as no 
purse seine effort limits or bigeye tuna catch limits in place could 
result in lesser adverse economic impacts than the proposed action for 
affected entities, but NMFS does not prefer the no-action alternative, 
because it would be inconsistent with the United States' obligations 
under the Convention. Taking no action, where no action is defined as 
leaving the combined purse seine fishing effort limits in place and not 
adjusting the 2022 longline bigeye tuna catch limit to account for the 
overage of the limit in 2021, could also result in lesser adverse 
economic impacts than the proposed action for affected entities, but 
NMFS believes the modifications are necessary to better fulfill the 
Unites States' obligations under the Convention. Alternatives to the 
proposed rule are discussed below.
1. Purse Seine Fishing Effort Limits
    NMFS has established combined limits for the ELAPS in previous 
years to provide increased operational flexibility to the U.S. purse 
seine fleet fishing in the WCPO. Although NMFS has proposed to 
establish separate U.S. EEZ and high seas limits, as discussed 
throughout this document, NMFS has analyzed the environmental and 
economic impacts of implementation of the combined limit in the 
supporting documents issued in conjunction with this proposed rule. 
NMFS invites the public to submit comments on the economic impact of 
its proposal to separate the limits.
2. Longline Bigeye Tuna Catch Limits
    NMFS has not identified any significant alternatives for this 
element of the proposed rule, other than the two no-action alternative 
described above (either no limit in place or the existing

[[Page 55778]]

limit of 3,554 mt). NMFS has considered the economic impacts of the two 
no-action alternatives in the RIR being issued with this rule. As 
stated above, the no-action alternatives could result in lesser adverse 
economic impacts than the proposed action for affected entities, 
because there would either be no limit in place or a greater limit in 
place. NMFS believes implementation of the adjusted 2022 longline 
bigeye tuna catch limit is necessary to better fulfill the United 
States' obligations under the Convention.

Paperwork Reduction Act

    NMFS previously conducted an estimate of the cost and burden of 
submitting daily purse seine effort reports in the Convention Area 
under Control Number 0648-0649, Transshipment Requirements under the 
WCPFC. NMFS estimated that the cost and burden of submitting a daily 
report would include 10 minutes maximum to complete the form and $4.07 
per submission. In this proposed rule, NMFS would codify the 
requirement to submit daily purse seine effort reports, instead of only 
requiring them ``as directed.'' Because NMFS has been directing vessel 
owners and operators to submit these daily reports, this proposed rule 
would not introduce any new costs or burdens beyond what has already 
been evaluated under Control Number 0648-0649.

List of Subjects in 50 CFR Part 300

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

    Dated: September 2, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 300--INTERNATIONAL FISHERIES REGULATIONS

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

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


Sec.  300.211   [Amended]

0
2. In Sec.  300.211, remove the definition for ``Effort Limit Area for 
Purse Seine, or ELAPS''.
0
3. In Sec.  300.218, revise paragraph (g) to read as follows:


Sec.  300.218   Reporting and recordkeeping requirements.

* * * * *
    (g) Daily purse seine fishing effort reports. The owner or operator 
of any fishing vessel of the United States equipped with purse seine 
gear must report to NMFS within 24 hours of the end of each day that 
the vessel is at sea in the Convention Area, except for within the 
Overlap Area, the activity of the vessel (e.g., setting, transiting, 
searching), location and type of set, if a set was made during that 
day. The report must be made in the format specified by the Pacific 
Islands Regional Administrator.
* * * * *
0
4. Amend Sec.  300.223 by removing and reserving paragraph (a)(1), and 
revising paragraphs (a)(2), and (3) to read as follows:


Sec.  300.223   Purse seine fishing restrictions.

* * * * *
    (a) * * *
    (1) [Reserved]
    (2) There is a limit of 558 fishing days in the EEZ and 1,270 
fishing days on the high seas per calendar year. These limits are 
subject to adjustment if exceeded in the previous year. NMFS will use 
the procedures for specifying limits set forth at Sec.  300.227(f) to 
account for an overage of these limits in the following year's limits, 
as appropriate.
    (3) NMFS will determine the number of fishing days spent in the EEZ 
and on the high seas in each calendar year using data submitted in 
logbooks and other available information. NMFS will publish the annual 
limits and estimates of the fishing effort on the following web page 
https://www.fisheries.noaa.gov/pacific-islands/commercial-fishing/fishing-effort-limits-purse-seine-western-and-central-pacific-ocean on 
a periodic basis. After NMFS determines that a limit in a calendar year 
is expected to be reached by a specific future date, NMFS will post a 
notice on the web page, announcing that the purse seine fishery in the 
area where the limit is expected to be reached will be closed and will 
remain closed until the end of the calendar year. NMFS will 
simultaneously email letters of the fishery closure to affected vessel 
owners. This action will also be published in the Federal Register as 
soon as practicable. The fishery closure will be effective upon the 
earlier of either (1) receipt by email of such notice, or (2) 
publication in the Federal Register.
* * * * *
0
5. In Sec.  300.224, revise paragraphs (a)(1), (2), and add paragraph 
(a)(3) to read as follows:


Sec.  300.224  Longline fishing restrictions.

* * * * *
    (a) * * *
    (1) Except as modified by Sec.  300.227 or provided in Sec.  
300.224(a)(2) below, there is a limit of 3,554 metric tons of bigeye 
tuna per calendar year that may be captured in the Convention Area by 
longline gear and retained on board by fishing vessels of the United 
States.
    (2) For calendar year 2022, the limit in paragraph (a)(1) of this 
section is adjusted to 3,358 metric tons.
    (3) The limits in Sec.  300.224 (a)(1) and Sec.  300.224 (a)(2) are 
subject to adjustment if exceeded in the previous year. NMFS will use 
the procedures for specifying limits set forth at Sec.  300.227(f) to 
account for an overage of the limits in paragraphs (a)(1) or (2) of 
this section in the following year's limit, as appropriate.
* * * * *
0
6. In Sec.  300.227, add paragraphs (i) and (j) to read as follows:


Sec.  300.227   Framework for catch and fishing effort limits.

* * * * *
    (i) NMFS will use the procedures for specifying limits set forth at 
Sec.  300.227(f) to account for an overage of the limits established in 
Sec.  300.223 and Sec.  300.224 in the following year's limits, as 
appropriate.
    (j) The limits established through the process detailed in 
paragraph (f) of this section may remain in effect for a period less 
than one year.
* * * * *

[FR Doc. 2022-19457 Filed 9-9-22; 8:45 am]
BILLING CODE 3510-22-P