Federal Register / Vol. 83, No. 138 / Wednesday, July 18, 2018 / Rules and Regulations 33851 

a pelagic false killer whale resulting 

from commercial longline operations, 

and the longline closure of the SEZ for 

the remainder of the 2018 fishing year. 

Although this action is being 

implemented without the opportunity 

for prior notice and comment, NMFS is 

soliciting and will respond to public 

comments from those affected by or 

otherwise interested in this rule. 

The NOAA Assistant Administrator 

for Fisheries (AA) also finds good cause 

to waive the 30-day delay in the 

effectiveness of this action under 5 

U.S.C. 553(d)(3). Failing to waive the 

30-day delay in effectiveness would 

likely result in additional interactions 

and possible mortality and serious 

injuries to the Hawaii pelagic false killer 

whale stock. Under the MMPA, NMFS 

must reduce mortality and serious 

injury of marine mammal stocks 

protected by a take reduction plan 

regulations. This includes taking action 

to close the SEZ immediately upon a 

second observed mortality and serious 

injury resulting from commercial 

longlining in the EEZ. Accordingly, the 

SEZ closure must be implemented 

immediately to ensure compliance with 

the provisions of the MMPA and the 

take reduction plan regulations. 

Nevertheless, NMFS recognizes the 

need for fishermen to have time to haul 

their gear and relocate to areas outside 

of the SEZ; thus, NMFS makes this 

action effective 7 days after filing this 

document in the Federal Register. 

This action is required by 50 CFR 

229.37(e)(3), and is exempt from review 

under Executive Order 12866. 

Authority: 16 U.S.C. 1361 et seq. 

Dated: July 13, 2018. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 2018–15332 Filed 7–17–18; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 300 

[Docket No. 180209155–8589–02] 

RIN 0648–BH77 

International Fisheries; Western and 

Central Pacific Fisheries for Highly 

Migratory Species; Fishing Limits in 

Purse Seine and Longline Fisheries, 

Restrictions on the Use of Fish 

Aggregating Devices in Purse Seine 

Fisheries, and Transshipment 

Prohibitions 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: Under authority of the 

Western and Central Pacific Fisheries 

Convention Implementation Act 

(WCPFC Implementation Act), NMFS 

issues this final rule that establishes 

limits on fishing effort by U.S. purse 

seine vessels in the U.S. exclusive 

economic zone and on the high seas 

between the latitudes of 20° N and 20° 

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); restrictions 

regarding the use of fish aggregating 

devices (FADs) for U.S. purse seine 

fishing vessels; limits on the catches of 

bigeye tuna by U.S. longline vessels in 

the Convention area; prohibitions on 

U.S. vessels used to fish for highly 

migratory species from engaging in 

transshipment in a particular area of the 

high seas (the Eastern High Seas Special 

Management Area or EHSSMA); and 

removal of existing reporting 

requirements for vessels transiting the 

EHSSMA. The rule also makes 

corrections to outdated cross references 

in existing regulatory text. This action is 

necessary to satisfy the obligations of 

the United States under the Convention, 

to which it is a Contracting Party. 

DATES: This rule is effective on July 18, 

2018, except for the revised reporting 

requirements in 50 CFR 300.218(g), 

which contains information collection 

requirements that have not been 

approved by the Office of Management 

and Budget (OMB). NOAA will publish 

a document in the Federal Register 

announcing the effective date for the 

revised reporting requirements upon 

OMB approval. 

Compliance dates: The compliance 

date for the amendment to 50 CFR 

300.223(b), the FAD prohibition period, 

is July 18, 2018. The compliance date 

for the amendment to 50 CFR 300.225, 

the EHSSMA transshipment 

prohibition, is January 1, 2019. 

ADDRESSES: Copies of supporting 

documents prepared for this final rule, 

including the regulatory impact review 

(RIR), the 2015 programmatic 

environmental assessment (PEA), the 

2012 environmental assessment, and 

supplemental information report (SIR) 

prepared for National Environmental 

Policy Act (NEPA) purposes, as well as 

the proposed rule (83 FR 21748; May 10, 

2018), are available via the Federal 

e-rulemaking Portal, at 

www.regulations.gov (search for Docket 

ID NOAA–NMFS–2018–0050). Those 

documents are also available from 

NMFS at the following address: Michael 

D. Tosatto, Regional Administrator, 

NMFS, Pacific Islands Regional Office 

(PIRO), 1845 Wasp Blvd., Building 176, 

Honolulu, HI 96818. 

A final regulatory flexibility analysis 

(FRFA) prepared under authority of the 

Regulatory Flexibility Act is included in 

the Classification section of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

FOR FURTHER INFORMATION CONTACT: Rini 

Ghosh, NMFS PIRO, 808–725–5033. 

SUPPLEMENTARY INFORMATION: On May 

10, 2018, NMFS published a proposed 

rule in the Federal Register (83 FR 

21748). The proposed rule was open for 

public comment until May 25, 2018. 

This final rule is issued under the 

authority of the Western and Central 

Pacific Fisheries Convention 

Implementation Act (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 Commission for the 

Conservation and Management of 

Highly Migratory Fish Stocks in the 

Western and Central Pacific Ocean 

(WCPFC or 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 


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(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 western and central 

Pacific Ocean (WCPO), can be found on 

the WCPFC website at: www.wcpfc.int/ 

doc/convention-area-map. 

This final rule implements specific 

provisions of two recent Commission 

decisions: Conservation and 

Management Measure (CMM) 2017–01, 

‘‘Conservation and Management 

Measure for Bigeye, Yellowfin, and 

Skipjack tuna in the Western and 

Central Pacific Ocean;’’ and CMM 2016– 

02, ‘‘Conservation and Management 

Measures for Eastern High Seas Pocket 

Special Management Area.’’ The rule 

also makes corrections to outdated cross 

references in existing regulatory text. 

The preamble to the proposed rule 

provides background information on the 

Convention and the Commission, the 

provisions that are being implemented 

in this rule, and the basis for the 

proposed regulations, which is not 

repeated here. 

The Action 

The elements of the final rule are 

detailed below. The administrative 

changes to correct outdated references 

in existing regulatory text are described 

at the end. 

Some of the provisions in CMM 2017– 

01 apply only to calendar year 2018, 

while others are applicable until 

February 10, 2021. Because the 

Commission likely will continue to 

implement similar management 

measures regarding FADs and longline 

bigeye tuna catch limits beyond 2018, 

and to avoid a lapse in the management 

of the fishery, most of the elements of 

CMM 2017–01 in the final rule will 

remain effective until they are replaced 

or amended. However, the elements 

implementing the purse seine effort 

limits will be effective for 2018 only, as 

explained further below. 

Longline Bigeye Tuna Catch Limits 

Under the final rule, there is a 

calendar year catch limit of 3,554 metric 

tons (mt) of bigeye tuna for U.S. longline 

vessels fishing in the Convention Area 

that would remain effective until 

replaced. In the proposed rule, NMFS 

stated that it was possible that the limit 

for 2018 would be adjusted downward 

to account for any overage of the 2017 

limit. However, NMFS has confirmed 

that the 2017 limit was not exceeded so 

no adjustment of the 2018 limit is 

needed. 

The calendar year longline bigeye 

tuna catch limit will apply only to U.Sflagged longline vessels operating as 

part of the U.S. longline fisheries. The 

limit will not apply to U.S. longline 

vessels operating as part of the longline 

fisheries of American Samoa, CNMI, or 

Guam. Existing regulations at 50 CFR 

300.224(b), (c), and (d) detail the 

manner in which longline-caught bigeye 

tuna is attributed among the fisheries of 

the United States and the U.S. 

Participating Territories. 

Consistent with the basis for the 

limits prescribed in CMM 2017–01 and 

with regulations issued by NMFS to 

implement bigeye tuna catch limits in 

U.S. longline fisheries as described 

below, the catch limit is measured in 

terms of retained catches—that is, 

bigeye tuna that are caught by longline 

gear and retained on board the vessel. 

1. Announcement of the Limit Being 

Reached 

As set forth under the existing 

regulations at 50 CFR 300.224(e), if 

NMFS determines that the limit is 

expected to be reached in a calendar 

year, NMFS will publish a document in 

the Federal Register to announce 

specific fishing restrictions that will be 

effective from the date the limit is 

expected to be reached until the end of 

the calendar year. NMFS will publish 

notification of the restrictions at least 7 

calendar days before the effective date 

to provide vessel owners and operators 

with advance notice. Periodic forecasts 

of the date the limit is expected to be 

reached will be made available to the 

public, such as by posting on a website, 

to help vessel owners and operators 

plan for the possibility of the limit being 

reached. 

2. Restrictions After the Limit Is 

Reached 

As set forth under the existing 

regulations at 50 CFR 300.224(f), if the 

limit is reached, the restrictions that 

will be in effect will include the 

following: 

a. Retain on board, transship, or land 

bigeye tuna: Starting on the effective 

date of the restrictions and extending 

through December 31 of the given 

calendar year, it will be prohibited to 

use a U.S. fishing vessel to retain on 

board, transship, or land bigeye tuna 

captured in the Convention Area by 

longline gear, except as follows: 

First, any bigeye tuna already on 

board a fishing vessel upon the effective 

date of the restrictions can be retained 

on board, transshipped, and/or landed, 

provided that they are landed within 14 

days after the restrictions become 

effective. A vessel that had declared to 

NMFS pursuant to 50 CFR 665.803(a) 

that the current trip type is shallowsetting is not subject to this 14-day 

landing restriction, so these vessels will 

be able to land bigeye tuna more than 

14 days after the restrictions become 

effective. 

Second, bigeye tuna captured by 

longline gear can be retained on board, 

transshipped, and/or landed if they are 

caught by a fishing vessel registered for 

use under a valid American Samoa 

Longline Limited Access Permit, or if 

they are landed in American Samoa, 

Guam, or CNMI. However, the bigeye 

tuna must not be caught in the portion 

of the U.S. EEZ surrounding the 

Hawaiian Archipelago, and must be 

landed by a U.S. fishing vessel operated 

in compliance with a valid permit 

issued under 50 CFR 660.707 or 

665.801. 

Third, bigeye tuna captured by 

longline gear can be retained on board, 

transshipped, and/or landed if they are 

caught by a vessel that is included in a 

specified fishing agreement under 50 

CFR 665.819(d), in accordance with 50 

CFR 300.224(f)(iv). 

b. Transshipment of bigeye tuna to 

certain vessels: Starting on the effective 

date of the restrictions and extending 

through December 31 of the calendar 

year, it will be prohibited to transship 

bigeye tuna caught in the Convention 

Area by longline gear to any vessel other 

than a U.S. fishing vessel operated in 

compliance with a valid permit issued 

under 50 CFR 660.707 or 665.801. 

c. Fishing inside and outside the 

Convention Area: To help ensure 

compliance with the restrictions related 

to bigeye tuna caught by longline gear 

in the Convention Area, two additional, 

related prohibitions would be in effect 

starting on the effective date of the 

restrictions and extending through 

December 31 of the calendar year. First, 

vessels are prohibited from fishing with 

longline gear both inside and outside 

the Convention Area during the same 

fishing trip, with the exception of a 

fishing trip that is in progress at the time 

the announced restrictions go into 

effect. In that exceptional case, the 

vessel still must land any bigeye tuna 

taken in the Convention Area within 14 

days of the effective date of the 

restrictions, as described above. Second, 

if a vessel is used to fish using longline 

gear outside the Convention Area and 

enters the Convention Area at any time 

during the same fishing trip, the 

longline gear on the fishing vessel must 

be stowed in a manner so as not to be 

readily available for fishing while the 

vessel is in the Convention Area; 


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specifically, the hooks, branch or 

dropper lines, and floats used to buoy 

the mainline must be stowed and not 

available for immediate use, and any 

power-operated mainline hauler on 

deck must be covered in such a manner 

that it is not readily available for use. 

These two prohibitions do not apply to 

the following vessels: (1) Vessels on 

declared shallow-setting trips pursuant 

to 50 CFR 665.803(a); and (2) vessels 

operating for the purposes of this rule as 

part of the longline fisheries of 

American Samoa, Guam, or the CNMI. 

This second group includes vessels 

registered for use under valid American 

Samoa Longline Limited Access Permits 

and vessels landing their bigeye tuna 

catch in one of the three U.S. 

Participating Territories, so long as 

these vessels conduct fishing activities 

in accordance with the conditions 

described above, and vessels included 

in a specified fishing agreement under 

50 CFR 665.819(d), in accordance with 

50 CFR 300.224(f)(iv). 

FAD Restrictions 

There is a FAD prohibition period 

from July through September in each 

calendar year in the Convention Area 

between the latitudes of 20° N and 20° 

S (inclusive of the EEZs and high seas 

in the Convention Area), and an 

additional two-month FAD prohibition 

period just on the high seas in that area 

in November and December in each 

calendar year. Under CMM 2017–01, the 

United States can choose to implement 

the additional two-month FAD 

prohibition period in either April and 

May or November and December. As 

stated in the preamble to the proposed 

rule, based on the expected economic 

impacts on U.S. fishing operations and 

the nation as a whole, and expected 

environmental and other effects, NMFS 

expects that a high seas FAD prohibition 

period in November and December may 

be somewhat more cost-effective than a 

FAD prohibition period in April and 

May. NMFS specifically sought public 

comment on which option is more 

appropriate. Four comment letters were 

received in support of implementing the 

additional high seas FAD prohibition 

period in November and December, and 

one comments letter was received 

requesting that consideration be given to 

having the additional prohibiton period 

take place in April and May in future 

years, as detailed in the comment 

summary and response section below. 

As currently defined in 50 CFR 

300.211, a FAD is ‘‘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.’’ Under this final rule, 

the regulatory definition of a FAD 

would not change. Although the 

definition of a FAD does not include a 

vessel, the restrictions during the FAD 

prohibition periods include certain 

activities related to fish that have 

aggregated in association with a vessel, 

or drawn by a vessel, as described 

below. 

The prohibitions applicable to the 

FAD-related measures are in existing 

regulations at 50 CFR 300.223(b)(1)(i)– 

(v). Specifically, during the July– 

September FAD prohibition periods in 

each calendar year, and on the high seas 

in November and December, owners, 

operators, and crew of fishing vessels of 

the United States equipped with purse 

seine gear shall not do any of the 

following activities in the Convention 

Area in the area between 20° N latitude 

and 20° 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, 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 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 

a FAD may be removed from the water 

and if removed may be cleaned, 

provided that it is not returned to the 

water; and 

(5) From a purse seine vessel or any 

associated skiffs, other watercraft or 

equipment, submerge lights under 

water; suspend or hang lights over the 

side of the purse seine vessel, skiff, 

watercraft or equipment, or 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. These 

prohibitions would not apply during 

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. 

This final rule revises the 

introductory paragraph of 50 CFR 

300.223(b)(1) to make it clearer that the 

prohibitions apply only to owners, 

operators, and crew of purse seine 

fishing vessels. NMFS has recently 

received inquiries as to whether the 

prohibitions apply to the owners, 

operators, and crew of vessels using 

other gear types. This final rule also 

makes a technical change to 50 CFR 

300.223(b)(1)(iv)(B) to clarify that, 

during the FAD prohibition periods, a 

FAD may be removed from the water to 

be repaired, cleaned, maintained, or 

otherwise serviced, provided that it is 

not returned to the water. This minor 

change ensures consistency with the 

introductory language in that paragraph. 

Under the final rule, an active FAD is 

defined as a FAD that is equipped with 

a buoy with a clearly marked reference 

number allowing its identification and 

equipped with a satellite tracking 

system to monitor its position, as 

specified by the definition of 

instrumented buoy in CMM 2017–01. 

CMM 2017–01 specifies that the buoy 

shall be activated exclusively on board 

the vessel. In order to implement this 

provision, the final rule specifies that 

the tracking equipment must be turned 

on while the FAD is onboard the vessel 

and before it is deployed in the water. 

In accordance with CMM 2017–01, 

under the final rule, each U.S. purse 

seine vessel would have a limit of 350 

active drifting FADs in the Convention 

Area at any one time. 

Purse Seine Fishing Effort Limits 

In the past, NMFS has implemented 

the U.S. purse seine fishing effort limits 

on the high seas and in the U.S. EEZ 

adopted by the Commission as a single 

combined limit in a combined area of 

the high seas and U.S. EEZ termed the 

Effort Limit Area for Purse Seine or 

ELAPS. CMM 2017–01 and predecessor 

conservation and management measures 

have always treated the high seas and 

EEZ limits separately, and these 

decisions do not provide Members, 

Cooperating Non-members, and 

Participating Territories (collectively 

referred to here as ‘‘members’’) the 

express authority to combine them. 

Nevertheless, NMFS’ reasoning for 

combining the high seas and U.S. EEZ 

limits was that it afforded more 

operational flexibility to the fleet and 

there were no substantial conservation 

effects to living marine resources for 

treating the two areas separately or 


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combined, so long as the overall effort 

remained equal or less than the sum of 

the two limits. 

For several years the United States 

has argued that the Commission’s purse 

seine effort limits are having a 

disproportionate burden on the 

economy of American Samoa, 

particularly fish processing facilities 

like the one tuna cannery in operation. 

At the most recent regular session of the 

Commission in December 2017, the 

Commission finally took consensus 

action to lessen that burden. 

Specifically, Paragraph 29 of CMM 

2017–01 allows the United States to 

address the impact of the Commission 

limits on American Samoa tuna 

processing by transfering 100 fishing 

days from the U.S. EEZ effort limit to 

the high seas effort limit, and to 

potentially regain these transferred days 

in the U.S. EEZ effort limit, provided 

that limit has been reached by October 

1, 2018 (subject to certain landing 

requirements). This provision is 

applicable to 2018 only. 

In light of CMM 2017–01’s Paragraph 

29 allowing the United States to transfer 

some of its EEZ days to the high seas in 

2018, there is a need to reconsider 

NMFS’ past practice of combining the 

U.S. high seas limit and U.S. EEZ limit. 

CMM 2017–01 specifies separate EEZ 

(Attachment 1, Table 1) and high seas 

(Attachment 1, Table 2) purse seine 

effort limits for the United States. 

However, previous CMMs on tropical 

tunas also specified separate EEZ and 

high seas effort limits for the United 

States. The new provision included in 

CMM 2017–01 that was not included in 

previous CMMs on tropical tunas is the 

transfer provision in Paragraph 29. In 

the past, there was no express constraint 

on NMFS’ ability to transfer the entire 

U.S. EEZ limit to the high seas limit and 

the entire high seas limit to the U.S. EEZ 

limit. However, in light of the new 

transfer provision in CMM 2017–01 for 

2018, specifying clear rules and 

guidelines for the number and manner 

a transfer of days between the high seas 

limit and U.S. EEZ must take place, 

NMFS believes that the U.S. EEZ and 

high seas purse seine effort limits for 

2018 must be implemented separately. 

That is, NMFS needs to separately 

enforce the high seas and U.S. EEZ days 

in order to ensure that the high seas 

fishing effort limit—as augmented under 

paragraph 29 by 100 days from the U.S. 

EEZ—is not exceeded. Accordingly, 

NMFS will not combine the two limits 

under a single ELAPS limit for 2018. 

This change is consistent with the plain 

reading of CMM 2017–01, which 

specifies a separate limit for the U.S. 

EEZ and a separate limit for the high 

seas for the United States, as well as the 

transfer provisions in Paragraph 29. 

In the proposed rule, NMFS had 

stated that all of the elements for CMM 

2017–01 would remain in place until 

they are replaced or modified. However, 

based on the time-limited application of 

Paragraph 29, and the comments 

received regarding the purse seine effort 

limits, as detailed in the Comments and 

Response section below, NMFS believes 

that it is appropriate to implement the 

purse seine effort limits in this final rule 

for 2018 only. Implementation of 

Commission-specified purse seine effort 

limits in future years, including whether 

the limits for the U.S. EEZ and high seas 

are combined or implemented 

separately and how transfers between 

the limits may take place, will be 

determined after consideration of future 

decisions adopted by the Commission. 

CMM 2017–01 specifies a limit of 

1,270 fishing days per year for the high 

seas and a limit of 558 fishing days per 

year for the U.S. EEZ. Applying the 

provisions of Paragraph 29, the final 

rule would establish a limit of 1,370 

fishing days on the high seas and a 

separate limit of 458 fishing days in the 

U.S. EEZ. These numbers utilize the 

provision of CMM 2017–01 provided to 

alleviate the economic hardship 

experienced by American Samoa during 

a fishery closure and transfer 100 

fishing days from the U.S. EEZ effort 

limit to the high seas effort limit. 

CMM 2017–01 also specifies that the 

United States may add an additional 

100 fishing days to its annual purse 

seine fishing effort limit in the U.S. EEZ 

if the limit in the U.S. EEZ is reached 

by October 1, 2018. Thus, under the 

final rule, in the event that NMFS 

expects that the U.S. EEZ effort limit 

would be reached by October 1, 2018, 

NMFS would publish a document in the 

Federal Register, no later than seven 

days prior to October 1, to increase the 

U.S. EEZ effort limit by 100 fishing days 

for 2018. 

The meaning of ‘‘fishing day’’ is 

defined at 50 CFR 300.211; that is, any 

day in which a fishing vessel of the 

United States equipped with purse seine 

gear 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. 

NMFS will monitor the number of 

fishing days spent in the U.S. EEZ and 

on the high seas using data submitted in 

logbooks and other available 

information. If and when NMFS 

determines that a limit is expected to be 

reached by a specific future date, it will 

publish a document in the Federal 

Register announcing that the purse 

seine fishery in the area where the limit 

is expected to be reached will be closed 

starting on a specific future date and 

will remain closed until the end of the 

calendar year. NMFS will publish that 

document at least seven days in advance 

of the closure date. Starting on the 

announced closure date, and for the 

remainder of calendar year, it will be 

prohibited for U.S. purse seine vessels 

to fish in the area where the limit is 

expected to be reached, except that such 

vessels would not be prohibited from 

bunkering (refueling) during a fishery 

closure. NMFS published an interim 

rule on August 25, 2015 (see 80 FR 

51478) to remove the restriction that 

prohibited U.S. purse seine vessels from 

conducting bunkering during fishery 

closures of the ELAPS. NMFS will 

continue those regulations as part of this 

final rule so that bunkering would be 

allowed during any fishery closures of 

the U.S. EEZ or high seas due to 

reaching a limit in a given calendar 

year. 

Under existing regulations at 50 CFR 

300.218(g), NMFS can direct U.S. purse 

seine vessel owners and operators to 

provide daily FAD reports, specifying 

the number of purse seine sets made on 

FADs during that day. NMFS 

promulgated this regulation to help 

track a limit on the number of FAD sets 

that was applicable in previous years 

but recognizes that this information is 

also valuable to help predict when a 

fishing effort limit is expected to be 

reached with greater certainty. Thus, 

under this final rule, NMFS is revising 

the existing regulations so that NMFS 

can direct U.S. purse seine vessel 

owners and operators to provide reports 

on the fishing activity of the vessel (e.g., 

setting, transiting, searching), location, 

and type of set, in order to obtain better 

data for tracking the fishing effort limits. 

Eastern High Seas Special Management 

Area 

This final rule removes the 

requirements at 50 CFR 300.222(oo) and 

50 CFR 300.225 for U.S. commercial 

fishing vessels to provide reports prior 

to entering or exiting the EHSSMA. This 

final rule also prohibits all U.S. 

commercial fishing vessels fishing for 

highly migratory species (HMS) from 

engaging in transshipments in the 

EHSSMA, beginning on January 1, 2019. 

Administrative Changes to Existing 

Regulations 

The regulations at 50 CFR 300.217(b) 

and 300.218(a)(2)(v) contain outdated 

cross references that are corrected in 

this final rule. In § 300.217, paragraph 

(b)(1) is revised to provide a cross 


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reference to § 300.336(b)(2), not 

§ 300.14(b), and in § 300.218(a)(2)(v), 

the cross reference is to § 300.341(a) 

instead of to § 300.17(a) and (b). 

Sections 300.14(b) and 300.17(a) and (b) 

no longer exist and have been replaced 

through a new regulatory action 

implementing provisions of the High 

Seas Fishing Compliance Act (16 U.S.C. 

5501 et seq.). 

Comments and Responses 

NMFS received nine comment letters 

on the proposed rule. The comments are 

summarized below, followed by 

responses from NMFS. 

Comment 1: Two commenters 

provided general statements of support 

for the limits and restrictions that would 

be implemented in the rule. One of the 

commenters expressed support for more 

stringent fishing limits for all waters. 

According to the commenters, 

overfishing has devastating ecological 

and economic consequences. 

Response: NMFS acknowledges and 

notes the comments. 

Comment 2: Representatives of the 

Hawaii Longline Association (HLA) 

provided comments supporting the 

establishment of the 3,554 mt longline 

bigeye tuna catch limit. HLA also 

requested that NMFS proceed carefully, 

but quickly, with the process to 

implement regulations under a separate 

rulemaking that would allow longline 

bigeye tuna catch to be attributed to the 

U.S. participating territories in the 

WCPFC in 2018 under specified fishing 

agreements. This would allow any fish 

landed immediately after the 3,554 mt 

limit is reached in 2018 to be attributed 

to the U.S. territory that is a party to the 

specified fishing agreement and would 

prevent a fishery closure. HLA noted 

that, in past years, the Hawaii deep-set 

longline fishery has been closed for 

extended periods of time in the WCPO, 

even though a specified fishing 

agreement had been executed and 

approved, because NMFS delayed its 

issuance of territory specification 

regulations. Thus, some U.S. deep-set 

longline vessels were unable to fish for 

no reason other than administrative 

delay. 

Response: NMFS is proceeding with 

the separate rulemaking to implement 

regulations that would provide for 

longline bigeye tuna catch to be 

attributed to the U.S. participating 

territories in the WCPFC in 2018 under 

specified fishing agreements as 

expeditiously as possible. 

Comment 3: Representatives from 

different sectors of the U.S. purse seine 

fleet provided comments regarding 

implementation of the purse seine effort 

limits for the U.S. EEZ and high seas 

areas. One commenter expressed 

support for having separate limits for 

the high seas and for the U.S. EEZ, 

while five commenters objected to the 

establishment of separate purse seine 

effort limits for the U.S. EEZ and high 

seas areas. The commenters that 

objected stated that for the past nine 

years, NMFS has combined those two 

areas with their associated limits into 

one area (the Effort Limit Area for Purse 

Seine, or ELAPS) to provide flexibility 

to the U.S. WCPO purse seine industry, 

and the process has worked very well. 

They claimed that by creating separate 

limits for the U.S. EEZ and the high seas 

now, NMFS will, if it proceeds with the 

proposed rule, effectively reduce fishing 

opportunities for the U.S. fleet by over 

400 days. They stated that the proposed 

rule provides no explanation for why 

this previous reasoning no longer 

applies or why NMFS has changed its 

position on this important issue. 

According to the commenters, it appears 

that the significant change to implement 

separate limits is being proposed to 

merely aid monitoring, but there is no 

apparent reason why sufficient 

monitoring cannot occur to satisfy CMM 

2017–01 under a combined limit and 

none is provided by NMFS. According 

to one commenter, NMFS is required by 

law to provide a rationale for its 

decision and to carefully address and 

explain its changes in position. The 

commenter stated that NMFS’ proposal 

to implement separate effort limits is 

arbitrary and capricious, and therefore 

unlawful under the Administrative 

Procedure Act (APA). 

Response: As stated above and in the 

preamble to the proposed rule, NMFS 

acknowledges that in the past NMFS has 

implemented the U.S. purse seine 

fishing effort limits on the high seas and 

in the U.S. EEZ adopted by the 

Commission as a single combined limit 

in a combined area of the high seas and 

U.S. EEZ termed the Effort Limit Area 

for Purse Seine or ELAPS. NMFS’ 

reasoning for combining the high seas 

and U.S. EEZ limits was that it afforded 

more operational flexibility to the fleet 

and there are no substantial differences 

in terms of effects to living marine 

resources between the two approaches— 

treating the two areas separately or 

combining the areas—so long as the 

overall effort remained equal or less 

than the sum of the limits of the two 

areas. Although NMFS agrees with the 

comment that a single combined effort 

limit would afford more operational 

flexibility to the fleet, as explained 

above, the plain reading of Paragraph 29 

of CMM 2017–01, which includes 

specific rules and guidelines for the 

United States for transferring fishing 

days between the high seas effort limit 

area and the U.S. EEZ effort limit area, 

precludes NMFS from doing so in 2018. 

As noted above, for several years the 

United States has argued that the 

Commission’s purse seine effort limits 

are having a disproportionate burden on 

the American Samoa economy, 

particularly fish processing facilities 

like the one tuna cannery in operation. 

At its 14th regular session in December 

2017, the Commission took positive 

steps to lessen that burden. CMM 2017– 

01 now allows the United States to 

address the impact of the Commission 

limits on American Samoa tuna 

processing by transfering 100 fishing 

days from the U.S. EEZ effort limit to 

the high seas effort limit, and to 

potentially regain these transferred days 

in the U.S. EEZ effort limit provided 

that limit has been reached by October 

1, 2018 (subject to certain landing 

requirements). The Commission’s 

decision was intended to provide U.S. 

purse seiners with an increase of 100 

fishing days for 2018 along with an 

incentive to land their catch in 

American Samoa. 

Commission decisions have always 

identified separate high seas and EEZ 

fishing effort limits for CCMs. The new 

provision included in CMM 2017–01 

that was not included in previous 

CMMs on tropical tunas is the transfer 

provision in Paragraph 29. In the past, 

there was no express constraint on 

NMFS’ ability to transfer the entire U.S. 

EEZ limit to the high seas limit and the 

entire high seas limit to the U.S. EEZ 

limit. However, in light of the new 

transfer provision in CMM 2017–01 for 

2018, specifying clear rules and 

guidelines for the number of days 

available for transfer and the manner in 

which a transfer of days between the 

high seas limit and U.S. EEZ limit must 

take place, NMFS believes that the U.S. 

EEZ and high seas purse seine effort 

limits for 2018 must be implemented 

separately. That is, NMFS must 

separately enforce the high seas and 

U.S. EEZ fishing effort limits in order to 

ensure that the high seas fishing effort 

limit of 1,370 days—as augmented 

under paragraph 29 by 100 days from 

the U.S. EEZ—is not exceeded. 

Enforcing only a single combined limit 

of 1,828 days could result in the 

augmented high seas limit being 

exceeded, in violation of CMM 2017–01. 

CMM 2017–01 specifies a limit of 

1,270 fishing days per year for the high 

seas and a limit of 558 fishing days per 

year for the U.S. EEZ, and includes 

specific rules and guidelines for 

transferring fishing days from the 

U.S.EEZ limit to the high seas limit. The 


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final rule establishes a limit of 1,370 

fishing days on the high seas and a 

separate limit of 458 fishing days in the 

U.S. EEZ (or 558 days if the limit is 

reached by October 1, 2018) for 2018 in 

accordance with the transfer provisions 

set forth in Paragraph 29 of CMM 2017– 

01 and in order to implement CMM 

2017–01 in accordance with the 

Commission’s clear intent. NMFS is not 

implementing the separate limits merely 

to aid in monitoring, as the commenters 

suggest, but rather to implement the 

clear requirements of CMM 2017–01. 

It is important to note that, under the 

final rule, the overall number fishing 

days in the high seas and U.S. EEZ 

remain the same (1,828) as the overall 

number of fishing days allowed in 

previous years, and could actually be 

higher (1,928) if the certain conditions 

described above are met. Accordingly, 

NMFS disagrees that enforcing separate 

high seas and EEZ limits under the final 

rule—which NMFS believes is 

compelled by a plain reading of CMM 

2017–01—unfairly reduces the number 

of available fishing days to some 

foreign-built U.S. purse seiners. These 

foreign-built U.S. purse seine vessels 

primarily fish under licenses issued 

pursuant to the South Pacific Tuna 

Treaty (SPTT) and, because they do not 

have fishery endorsements on their U.S. 

Coast Guard Certificates of 

Documentation, they are generally 

prohibited from fishing within the U.S. 

EEZ. However, these restrictions on 

operating within the U.S. EEZ have long 

been in effect (see 46 U.S.C. 12113). 

Currently, 9 of the 37 U.S. purse seine 

vessels with WCPFC Area Endorsements 

have that fishery endorsement, so these 

vessels would be able to continue 

fishing up to the 458 day limit in the 

U.S. EEZ (or 558 day limit, if the U.S. 

EEZ limit is reached by October 1, 2018) 

when the limit in the high seas is 

reached in 2018. Furthermore, the 

foreign-built U.S.-flagged vessels, which 

are ineligible to fish within the U.S. 

EEZ, retain the option of shifting their 

fishing effort either to foreign zones 

under the SPTT or into the eastern 

Pacific Ocean (EPO). Please also see 

below for the response to Comment 4 on 

the potential loss of 400 fishing days to 

the fleet. 

NMFS is implementing separate 

limits in 2018, because of the language 

in Paragraph 29 of CMM 2017–01 for 

2018. Implementation of Commissionspecified purse seine effort limits in 

future years, including whether the 

limits for the U.S. EEZ and high seas are 

combined or implemented separately 

and how transfers between the limits 

may take place, will be determined after 

consideration of future decisions 

adopted by the Commission. 

Comment 4: Several comments from 

U.S. purse seine industry 

representatives related to NMFS’ 

assessment of the economic effects of 

the proposed purse seine fishing effort 

limits. One commenter stated that 

NMFS appears to believe that its 

proposal to split the ELAPS is a mere 

administrative matter with no 

substantial consequences. This and 

other commenters stated that the 

proposal would have very significant 

impacts on many vessels in the U.S. 

purse seine fleet, potentially costing 

them millions of dollars in lost fishing 

opportunities. 

One commenter stated that NMFS 

underestimates the severe economic 

impact the proposed rule would have on 

the U.S. purse seine fleet, and another 

stated that the regulatory impact review 

(RIR) prepared for the proposed rule 

makes no meaningful attempt to 

quantify the costs of the proposed 

splitting of the ELAPS limits. The 

commenter stated that based on the 

history of fishing in the U.S. EEZ, as 

presented in the RIR, and absent a 

strong El Nin ̃ o and in an average year, 

almost 440 fishing days would go 

unused as a result of the fishing days 

under the U.S. EEZ limit not being 

available on the high seas. Under the 

current ELAPS arrangement, those 440 

fishing days are available to the entire 

purse seine fleet. Another commenter 

also stated that 440 fishing days would 

go unused, effectively reducing the 

allocation of fishing days to the U.S. 

fleet, and additional commenters 

similarly stated that having separate 

limits for the U.S. EEZ and the high seas 

would result in the fishing days under 

the U.S. EEZ being unused or wasted. 

Two commenters stated that the cost of 

‘‘upfront’’ fishing days under the SPTT 

($12,500 per fishing day, according to 

one commenter) can be used to estimate 

the value of those lost fishing days, and 

went on to comment that the aggregate 

cost to the 25 purse seine vessels 

without fishery endorsements on their 

U.S. Coast Guard Certificates of 

Documentation would be about 

$5,500,000 per year, or $220,000 per 

vessel per year. 

Several commenters provided 

comments stating that alternative 

fishing opportunities—in the event the 

U.S. EEZ and/or the high seas are closed 

to fishing—would be constrained in the 

latter half of the year, when the high 

seas would more likely be closed. With 

respect to the opportunity of fishing in 

foreign EEZs, several commenters 

pointed out the high access fees 

required for such fishing. With respect 

to fishing in the EPO, several 

commenters pointed out the limited 

fishing capacity available in the EPO, 

and noted that the high seas portion of 

the area of overlap between the WCPFC 

and Inter-American Tropical Tuna 

Commission (IATTC) would be subject 

to the proposed high seas limit. One 

commenter stated that NMFS has 

indicated in the past that there was no 

additional capacity available to place 

vessels on the list of U.S. vessels eligible 

to fish in the EPO, and asked for 

clarication of this option, given that it 

appears to be one of the key alternatives 

available to vessels impacted by the 

proposed rule. 

With respect to the alternative of not 

fishing, one commenter stated that 

NMFS’ statement that a vessel would 

have some variable costs reduced if it is 

forced to stop fishing is a ridiculous 

statement because it does not reflect the 

reality of a bank’s view on missed 

payments, and that NMFS’ statement 

that vessels could use non-fishing time 

to do maintenance and repair assumes 

there will be money left to do so. The 

same commenter stated that NMFS’ 

analysis fails to take into account that, 

of the $10 million grossed by the fleet, 

$2 million net comes off the top for 

access fees under the SPTT. 

One commenter stated that the 

proposed rule’s costs to many vessels in 

the U.S. purse seine fleet would be to 

the benefit of only a few U.S. vessels, 

and more broadly, their foreign 

competitors. The commenter explained 

that under the MSA, NMFS may not 

provide sector preference within the 

fleet, but in this case a defacto sector 

preference under the MSA is beneficial 

to foreign nations, by allowing them to 

take advantage of U.S. fleet interests, 

reducing U.S. fleet access, and 

increasing costs for the U.S. fleet, while 

providing further benefits to foreign 

nations whose interests are not 

necessarily aligned with the interests of 

the U.S. Government. 

One commenter stated that having 

separate limits for the U.S. EEZ and the 

high seas would put the vessels that 

support American Samoa at an 

economic disadvantage. 

Several commenters stated that 

having separate limits would hurt the 

cannery and possible employment for 

the people of American Samoa. These 

commenters stated that there is not a 

consistent amount of fish in the U.S. 

EEZ for the vessels to be able to fish 

there, and that closing the U.S. EEZ and 

the high seas earlier would cause 

vessels to operate further from 

American Samoa, making it less likely 

that they will unload in American 

Samoa. 


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One commenter stated that the 

proposed rule would needlessly 

increase the U.S. fisheries trade deficit 

by just more than $21 million. 

Response: First, NMFS notes that it 

has revised the RIR from the original 

version, dated April 2018, that was 

made available with the proposed rule. 

The original version included 

provisional estimates for certain 2017 

fishery performance indicators, 

including the numbers of fishing days 

used in the U.S. EEZ and on the high 

seas. Those estimates have since been 

finalized and corrections to other 

estimates have been made, and the 

revised RIR has been updated 

accordingly. The revised analysis does 

not alter the conclusions or 

determinations made in the original 

RIR. 

NMFS agrees that a combined limit 

would afford more operational 

flexibility to the fleet as a whole, but as 

explained above, NMFS believes a plain 

reading of Paragraph 29 of CMM 2017– 

01—which provides benefits to 

American Samoa and provides for up to 

100 additional vessel days if certain 

conditions are met—precludes NMFS 

from implementing a combined limit for 

2018. However, NMFS has updated its 

analysis to include the combined limit 

in the FRFA and revised RIR for 

comparison purposes. 

NMFS agrees that a combined limit 

would effectively make more fishing 

days available to those U.S. purse seine 

vessels without fishery endorsements on 

their U.S. Coast Guard Certificates of 

Documentation than would this action. 

However, NMFS does not agree that 

‘‘almost 440 fishing days would go 

unused,’’ as stated by one commenter in 

comparing the two approaches. NMFS 

recognizes that U.S. vessels that are 

already ineligible to fish within the U.S. 

EEZ would have fewer days to use on 

the high seas in 2018 than in previous 

years, but overall days available to the 

fleet remain consistent with previous 

years, and may actually increase to 

1,928 days if certain conditions under 

CMM 2017–01 are met. Also, because 

the vast majority of U.S. purse seine 

effort in the region already is 

concentrated in foreign zones under the 

provisions of the SPTT, NMFS does not 

anticipate substantial impacts resulting 

from unused EEZ days. 

NMFS does not believe that the 

proposal to establish separate purse 

seine fishing effort limits for the U.S. 

EEZ and the high seas is a mere 

administrative matter with no 

substantial consequences. To the 

contrary, NMFS concluded in the initial 

regulatory flexibility analysis (IRFA) 

and the RIR that either of the two limits, 

and especially the high seas limit, could 

be reached in any of the years 2018– 

2020, and that the closure of any fishing 

grounds for any amount of time can be 

expected to bring adverse impacts to 

affected entities. With respect to the 

proposed high seas limit of 1,370 fishing 

days, NMFS noted that the proposed 

level had been met or exceeded in three 

of the last nine years, a history that 

suggests a substantial likelihood of the 

proposed high seas limit being reached 

in any of the years 2018–2020. NMFS 

stated that the severity of the impacts of 

a closure of the high seas or the U.S. 

EEZ would be greatly dependent on the 

length of the closure and the most 

favored fishing ground during the 

closure. As an indication of the possible 

impacts, NMFS cited a study of the 

closure of the ELAPS in 2015 in which 

the overall losses to the combined 

sectors of the vessels, canneries and 

support companies from the closure 

were estimated to be between $11 and 

$110 million, depending on the period 

considered. NMFS further noted the 

study suggested that there were impacts 

from the 2015 ELAPS closure on the 

American Samoa economy, and that a 

connection existed between U.S. purse 

seine vessels and the broader American 

Samoa economy. As a further indication 

of the possible impacts to producers in 

the fishery of lost fishing days as a 

result of one or both limits being 

reached (i.e., an indication of the upper 

bound of those impacts), NMFS 

provided information in the RIR and 

IRFA on revenues in the fleet, including 

the fact that, with an indicative fleet 

size of 35 vessels, the fleet could have 

gross ex-vessel revenues of more than $1 

million per day, on average. The losses 

to producers in the purse seine fishery 

as a result of one or both of the limits 

being reached would likely not reach 

that maximum rate because, as 

explained in the RIR and IRFA, there are 

next-best opportunities to fishing on the 

high seas or in the U.S. EEZ, including 

fishing in foreign EEZs under the SPTT, 

fishing in the EPO, and not fishing. 

NMFS described in the RIR and IRFA 

some of the factors that might make 

each of those alternative opportunities 

relatively attractive or unattractive, and 

acknowledges that under the regulations 

implementing IATTC decisions at 50 

CFR part 300, subpart C the available 

capacity for U.S. purse seine vessels that 

wish to fish in the EPO and be listed on 

the IATTC vessel register is limited. 

However, vessels with SPTT licenses 

may take one trip per year for up to 90 

days in duration in the EPO for a total 

of 32 trips for the fleet in a calendar 

year, without being listed on the IATTC 

vessel register. With respect to the 

possibility of fishing in foreign EEZs in 

the Convention Area during a closure of 

the high seas and/or U.S. EEZ, NMFS 

agrees that the access fees under the 

SPTT, such as the 2018 fee of $12,500 

per fishing day to fish in the waters of 

many of the Pacific Island parties to the 

SPTT, give an indication of the cost of 

a closure of the high seas, since fishing 

on the high seas does not require 

payment of such access fees. The high 

seas appear to be generally less 

favorable fishing grounds than foreign 

EEZs, and thus, U.S. vessels appear to 

be already paying the $12,500 access fee 

even before the U.S. high seas limit is 

reached and the area is closed. Thus, 

$12,500 is probably an overestimate of 

the cost per day of the high seas being 

closed. 

NMFS recognizes, and explained in 

the RIR and IRFA, that the proposed 

purse seine fishing effort limits would 

affect vessels with fishery endorsements 

on their U.S. Coast Guard Certificates of 

Documentation differently than those 

vessels without fishery endorsements, 

as those without fishery endorsements 

are not authorized to fish in the U.S. 

EEZ, and would not have access to the 

fishing days available under the limit 

for the U.S. EEZ. NMFS agrees that if 

the proposed limits for the U.S. EEZ and 

high seas were combined into a single 

limit for the ELAPS, as done in the past, 

the vessels without fishery 

endorsements would have access to the 

entirety of the combined limit (i.e., 

competitively, with all other vessels in 

the U.S. fleet). 

NMFS recognizes, and explained in 

the RIR and IRFA, that the proposed 

purse seine fishing effort limits in the 

U.S. EEZ and high seas could cause a 

race to fish in those respective areas, 

with possible consequent effects on the 

timing of catches and cannery deliveries 

and costs in terms of the health and 

safety of crew members as well as the 

economic performance of vessels. 

NMFS recognizes, and explained in 

the RIR and IRFA, that there are 

constraints to alternative opportunities 

in the event the U.S. EEZ and/or high 

seas are closed to fishing, and NMFS 

acknowledges the specific constraints 

pointed out by the commenters. NMFS 

agrees that the alternative ‘‘next best’’ 

opportunities may not fully compensate 

for the losses associated with not being 

able to fish in the U.S. EEZ and/or on 

the high seas in the event they are 

closed. NMFS’ main point in those 

portions of the RIR and IRFA is to 

identify and describe what appear to be 

among the most attractive alternative 

opportunities (including not fishing at 

all), and thereby give at least a 


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qualitative idea of the opportunity costs 

associated with the proposed fishing 

effort limits. 

Regarding the comment that the 

NMFS analysis fails to take into account 

that, of the $10 million grossed by the 

fleet, $2 million net comes off the top 

for access fees under the SPTT, NMFS 

agrees that gross ex-vessel revenues 

overestimate the possible losses to 

fishing businesses as a result of this 

action. 

Regarding the comment that the 

proposed rule’s costs to many vessels in 

the U.S. purse seine fleet would be to 

the benefit of a few U.S. vessels, and 

more broadly, their foreign competitors, 

NMFS agrees that restrictions on U.S. 

fishing vessels could put some of them 

at a competitive disadvantage relative to 

foreign fleets, but this rule implements 

a WCPFC decision that broadly applies 

to all the major purse seine fleets in the 

WCPO. Moreover, as discussed above, 

NMFS does not believe it continues to 

have discretion to combine the high seas 

and U.S. EEZ purse seine effort limits 

for the United States for 2018. NMFS 

has not identified any alternative ways 

to implement the WCPFC decisions that 

would be more advantageous to U.S. 

fishing vessels. While NMFS 

acknowledges that some foreign-built 

U.S. vessels may be impacted differently 

than vessels with fishery endorsements 

that can fish in the U.S. EEZ, NMFS is 

satisfied that the final rule treats all 

vessels fairly and achieves conservation 

consistent with U.S. obligations under 

the Convention. 

Regarding the comment that having 

separate limits for the U.S. EEZ and the 

high seas would put the vessels that 

support American Samoa at an 

economic disadvantage, NMFS notes 

that Paragraph 29 of CMM 2017–01, 

which specifies the separate effort 

limits, was specifically negotiated to 

alleviate the economic hardship of 

American Samoa. 

NMFS acknowledges the comments 

about the economic impacts of the 

proposed fishing effort limits on the 

cannery in American Samoa and 

employment for the people of American 

Samoa. As explained in the RIR by 

reference to the study of the impacts of 

the ELAPS closure in 2015, a closure of 

the high seas and/or U.S. EEZ could 

impact the American Samoa economy. 

However, as stated in the RIR, because 

the cannery in Pago Pago also handles 

deliveries from the fishing fleets of other 

nations, as well as from other domestic 

fleets, the cannery might not be 

appreciably affected in terms of income 

or employment. 

NMFS acknowledges the comment 

that the action would increase the U.S. 

fisheries trade deficit by just more than 

$21 million. NMFS does not have 

information to verify the commenter’s 

estimate of the impacts of the rule on 

the U.S. fisheries trade deficit. However, 

NMFS believes that promulgation of this 

rule is necessary to carry out the U.S. 

international obligations under the 

Convention. 

Comment 5: Four U.S. purse seine 

industry representatives provided 

comments indicating that they 

supported having the additional twomonth FAD prohibition period on the 

high seas take place in November and 

December, as set forth in the proposed 

rule, rather than in April and May. One 

U.S. purse seine industry representative 

provided comments requesting that 

NMFS look closely at the practical effect 

of having the additional two-month 

FAD prohibition period in November 

and December instead of April and May 

before deciding on the prohibition 

period in future years. The commenter 

stated that the U.S. fleet and the 

American Samoa economy may function 

better with having the prohibition 

period take place in April and May. 

According to the commenter, fishing in 

the high seas will be impacted by the 

timing of the FAD prohibition period. 

The proposed rule does not allocate the 

limited number of high seas days to 

eligible boats. Therefore, the commenter 

believes that there will be a race to fish 

on the high seas. Vessels that are unable 

to operate during the first part of the 

year, or for as long as the high seas are 

open, will suffer an economic loss. That 

will include boats that are under repair. 

Additionally, the supply of tuna to the 

American Samoa canneries could be 

negatively impacted due to a high seas 

prohibition period. That is because the 

high seas fishing grounds are relatively 

close to American Samoa. Vessels that 

cannot fish in the high seas may have 

to shift their areas of operation far from 

American Samoa, thereby depriving the 

territory of tuna supply. If the FAD 

prohibition period is in November and 

December and there are no high seas 

days remaining at that time, there would 

be a reduction in fish supply to 

American Samoa. A high seas FAD 

prohibiton period in April and May, or 

an allocation of high seas days, or both, 

would mitigate this risk. The 

commenter encourages NMFS to take 

these concerns into consideration. 

Response: As described in 

Attachment 1 of the RIR, NMFS 

acknowledges that there are pros and 

cons to both the late (November and 

December) and early (April and May) 

FAD prohibition period options for 

2018, and that on balance, the late 

option is expected to have less direct 

economic impact on fishing businesses 

associated with the U.S. WCPO purse 

seine fishery. CMM 2017–01 specifies 

that the additional two-month FAD 

prohibition period is for calendar year 

2018 only. However, as explained in the 

proposed rule, the regulations to 

implement the additional two-month 

high seas FAD closure will be in effect 

until they are replaced or amended, and 

the supporting analytical documents 

assess the effects of implementation of 

the rule for a three-year period. NMFS 

will collect data related to the 2018 high 

seas FAD prohibition period and 

conduct the appropriate analysis to 

support proposed regulations for future 

years, taking into consideration the 

economic impacts to fishing businesses, 

including canneries in American 

Samoa. 

Comment 6: Two U.S. purse seine 

industry representatives provided 

comments stating that the 15-day 

comment period on the proposed rule 

was insufficient. One of the commenters 

stated that issue of the separate limits 

for the high seas and U.S. EEZ alone 

warrants at least a 30-day comment 

period. The commenter stated that the 

15-day comment is contrary to 

applicable law, and the rationale 

provided in the proposed rule for the 

15-day comment period—that Section 

304(b) of the MSA provides for a 15-day 

comment period on these types of 

fishery rules—is insufficient. Provisions 

of the WCPFC Implementation Act and 

the APA apply to this rulemaking. 

Response: NMFS acknowledges that 

lengthier public review and comment 

periods may be provided for some 

proposed rules. As noted by the 

commenter, NMFS is promulgating this 

final rule under the authority of the 

WCPFC Implementation Act and in 

accordance with the rulememaking 

provisions of the APA. Neither the 

WCPFC Implemation Act nor the APA 

specify a minimum comment period for 

proposed rules. However, we noted that 

Section 304(b) of the MSA specifically 

allows for a 15-day comment period for 

fisheries management rules. 

Furthermore, NMFS explained in the 

preamble of the proposed rule that it 

had good cause to provide a 15-day 

comment period in order to meet the 

implementation requirements of CMM 

2017–01. Based on the nature and extent 

of the comments received on the 

proposed rule and the need to make the 

rule effective in a timely manner, NMFS 

believes that the 15-day comment 

period on the proposed rule was 

sufficient. Moreover, the comments do 

not indicate that any commenter was 

prejudiced by the 15-day comment 

period. 


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Comment 7: Two U.S. purse seine 

industry representatives expressed 

concern that the regulations would be in 

effect for longer than one year. One 

commenter stated that once issued, 

regulations tend not to be changed, even 

when outdated or superseded, and 

asked that the agency enable necessary 

regulatory changes to be made 

expeditiously, such as by interim 

rulemaking, particularly when 

restrictions will be relaxed. The other 

commenter noted that although CMM 

2017–01 was agreed upon as a threeyear measure, certain key purse seinerelated provisions (among others) were 

considered especially contentious. 

According to the commenter, some 

believed that CMM 2017–01 weakened 

several measures applied in 2017 

relating to FAD management and high 

seas purse seine effort controls. The 

commenter noted that these contentious 

provisions are applicable for only one 

year, and could change in 2019. The 

commenter stated that several Pacific 

island countries have indicated that 

portions of CMM 2017–01 will need to 

be re-evaluated. The commenter stated 

that NMFS does not have the authority 

to implement any three-year provisions 

for FADs and purse seine effort controls 

in specific areas. 

Response: NMFS acknowledges that 

some of the provisions in CMM 2017– 

01 apply only to calendar year 2018, 

while others are applicable until 

February 10, 2021, and that the 

Commission is scheduled to discuss a 

number of the provisions during its 

annual meeting in December 2018. 

However, as explained in the preamble 

to the proposed rule, because the 

Commission likely will continue to 

implement similar management 

measures regarding FADs and longline 

bigeye tuna catch limits beyond 2018, 

and to avoid a lapse in the management 

of the affected fisheries, NMFS is 

implementing all of the elements of 

CMM 2017–01, except for the purse 

seine effort limits, in this rule so that 

they will remain effective until they are 

replaced or amended. Due to the 

comments received regarding 

implementation of the purse seine effort 

limits and the fact that Paragraph 29 of 

CMM 2017–01 is specified for 2018 

only, NMFS is implementing the purse 

seine effort limits for 2018 only. 

The WCPFC Implementation Act at 

Section 16 U.S.C. 6904(a) authorizes the 

promulgation of regulations as may be 

necessary to carry out the United States 

international obligations under the 

Convention, including 

recommendations and decisions 

adopted by the Commission. Instead of 

applying a piecemeal approach for 

implementation of the provisions of 

CMM 2017–01, NMFS has determined 

that it is necessary to implement all the 

applicable provisions, except for the 

purse seine effort limits, so that they 

will remain effective until they are 

replaced or amended. Since the 

Commission’s regular session annually 

occurs in December, this approach 

avoids a lapse in management of 

affected fisheries and also provides the 

regulated community with advance 

notice regarding regulations that will be 

in effect in future years. In past years, 

NMFS has implemented Commission 

decisions for specific calendar years, 

and this approach has caused both a 

lapse in management of the affected 

fisheries in subsequent calendar years, 

as well as last minute notification to the 

regulated community of the entry into 

force of specific restrictions and 

requirements. If the Commission adopts 

changed or new provisions at its 

December meeting, NMFS would 

implement those provisions in a timely 

manner. 

Comment 8: Two representatives of 

the U.S. purse seine industry provided 

comments regarding the restrictions on 

the number of active FADs per vessel. 

One commenter stated that the 350- 

active buoy limit per vessel is consistent 

with the limit already implemented by 

the IATTC. The commenters both stated 

that it is industry practice for purse 

seine vessels to share buoys. For 

example, if a buoy drifts beyond the 

limits of economic operation of one 

vessel, it might be transferred to another 

vessel for fishing or retrieval. One 

commenter requested that the rule 

provide for sharing and transferring 

active buoys without reducing the 350- 

active buoy limit for any one vessel, and 

also requested that the definition of a 

buoy be standardized with that of the 

IATTC to avoid confusion. The other 

commenter asked how enforcement and 

reporting of the active FAD limit per 

vessel would take place, and requested 

that the administrative and recordkeeping burden created by this element 

of the rule be evaluated under the 

Paperwork Reduction Act (PRA). 

Response: NMFS appreciates the need 

for consistency with the regulations 

recently promulgated to implement 

IATTC Resolution C–17–02, 

‘‘Conservation Measures for Tropical 

Tunas in the Eastern Pacific Ocean 

during 2018–2020 and Amendment to 

Resolution C–17–01,’’ which also 

includes limits on the number of active 

FADs per purse seine vessel (see 83 FR 

15503; published April 11, 2018). 

However, Resolution C–17–02 and 

CMM 2017–01 include some different 

provisions regarding the active FAD 

limits. Thus, the differences between 

the regulations implementing the active 

FAD provisions in IATTC Resolution C– 

17–02 and this final rule are due to the 

differences in the separate IATTC and 

WCPFC decisions. 

NMFS believes that it would be 

premature to implement a reporting 

requirement to monitor and enforce the 

active FAD requirements in the final 

rule, because the WCPFC Secretariat has 

not yet developed a system to receive 

such reports. Thus, the active FAD 

limits in this final rule would be 

monitored and enforced without a 

reporting requirement. NMFS may seek 

adoption of a Commission-wide active 

FAD reporting requirement at the 

upcoming WCPFC annual meeting in 

December or further consistency with 

the IATTC resolution. 

The regulations regarding active FADs 

in the final rule do not preclude the 

sharing or transferring of active FAD 

buoys. The regulations limit U.S. vessel 

owners and operators to no more than 

350 drifting active buoys per vessel in 

the Convention Area at any one time. 

Thus, when an active FAD buoy is 

transferred to and tracked by a new 

vessel, it would be part of the new 

vessels’s active FAD limit. The 

regulations regarding active FADs do 

not impose any new recordkeeping or 

reporting requirements and thus, are not 

subject to the PRA. 

Comment 9: One representative of the 

U.S. purse seine industry provided 

comments requesting that the 

regulations address unintentional 

setting on FADs. According to the 

commenter, it is possible that a purse 

seine vessel may not see a FAD or 

something that meets the definition of a 

FAD floating within a mile of the vessel. 

The commenter requested that the 

prohibition on setting on FADs during 

the FAD prohibition periods be based 

on an intentional or negligent standard. 

The commenter stated that if a vessel 

has followed reasonable search and 

look-out precautions and does not see a 

FAD by electronic or visual means and 

has made a notation in the logbook, that 

should be sufficient evidence that there 

was no intent to set on a FAD. 

Another commenter stated that NMFS 

is arbitrarily picking and choosing how 

to implement various FAD definitions. 

Although NMFS is proposing 

consistency with the definition of active 

FAD for the regulations implementing 

the IATTC Resolution C–17–02 and this 

final rule, the general FAD definition in 

the regulations implementing WCPFC 

definitions at 50 CFR 300.211 is 

different than and not consistent with 

the general FAD definition in the IATTC 

regulations at 50 CFR 300.21. According 


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to the commenter, NMFS’ approach to 

defining FAD generally provides very 

little direction to the U.S. purse seine 

fishery and creates regulatory confusion, 

which can result in NMFS unfairly 

prosecuting alleged FAD violations. The 

commenter requests that NMFS 

promptly address these overarching 

FAD definitional issues. 

Response: The FAD definitions that 

NMFS has promulgated and continues 

to promulgate in regulations 

implementing IATTC and WCPFC 

decisions stem from the language and 

intent of those separate IATTC and 

WCPFC decisions. On August 4, 2009, 

NMFS published a final rule 

implementing the purse seine 

provisions of CMM 2008–01 (74 FR 

38544). The rule provided, inter alia, 

that owners, operators, and crew of 

fishing vessels of the United States shall 

not set a purse seine around a FAD or 

within one nautical mile of a FAD. The 

one nautical mile boundary helps 

ensure that fishing on schools of fish in 

association with FADs does not occur. 

NMFS has not proposed any change to 

this standard, and notes that an 

intentional or negligent standard could 

undermine the effectiveness of the 

prohibition. 

NMFS understands the benefit of 

consistency in definitions, as vessels in 

the U.S. purse seine fleet sometimes fish 

in both the WCPO and the EPO. 

However, NMFS believes that it is 

premature to modify the definition of 

FAD set forth at 50 CFR 300.211 before 

it has an opportunity to further consider 

the consequences of modifying this 

definition. NMFS has scheduled a 

separate public meeting to discuss FAD 

definitions and the concerns raised by 

industry and will take the outcomes of 

that public meeting into consideration 

when developing future regulations, as 

appropriate (see 83 FR 26011, published 

June 5, 2018, for information regarding 

the public meeting). NMFS notes that 

modifying the definition at this stage 

could be inconsistent with the United 

States’ obligations as a WCPFC member. 

Comment 10: One purse seine 

industry representative provided 

comments stating that he did not 

understand why the proposed rule 

requires the daily reporting on FAD sets, 

given the number of FAD sets is not 

restricted in the Convention Area. The 

commenter stated he saw no reason for 

daily reporting, particularly since each 

FAD set will always be reported at the 

end of each fishing trip. 

Response: As stated in the preamble 

to the proposed rule, NMFS is slightly 

revising the existing regulations 

regarding daily reporting on FAD sets so 

that NMFS can direct U.S. purse seine 

vessel owners and operators to provide 

reports on the fishing activity of the 

vessel (e.g., setting, transiting, 

searching), location, and type of set, in 

order to obtain better data for tracking 

the fishing effort limits. Thus, the 

changes in the final rule from existing 

reporting requirements are intended to 

better track purse seine fishing effort 

and are not connected to a FAD set 

limit. As the commenter correctly notes, 

the final rule does not implement a FAD 

set limit. 

Comment 11: One purse seine 

industry representative stated that he 

had hoped that the agency would use 

this rulemaking to address the area of 

overlap between the IATTC and WCPFC 

convention areas (overlap area). The 

commenter stated his belief that the 

United States is the only flag State that 

enforces both the WCPFC and IATTC 

management measures in the overlap 

area. According to the commenter, 

besides the unnecessary burden of 

carrying two observers when operating 

in the overlap area, fishing in the 

overlap area requires the use of limited 

high seas fishing days. The commenter 

requested that the Unites States apply 

only IATTC management measures in 

the overlap area, retroactive to January 

1, 2018. 

Response: NMFS recently published 

an advance notice of proposed 

rulemaking to solicit public input on 

management of the overlap area and 

encourages the commenter to provide 

input on that separate action (see 83 FR 

27305, published June 12, 2018). 

Comment 12: One purse seine 

industry representative commented that 

NMFS’ implementation of separate 

purse seine effort limits for the high seas 

and the U.S. EEZ goes against the 

policies of the current Administration. 

According to the commenter, the 

Administration has sought 

deregulations in favor of small 

businesses, and other industries have 

benefitted from this. The commenter 

stated that the President signed an 

Executive Order stating that for every 

new regulation, two old regulations 

should be removed. The commenter 

requested clarification on why the rule 

is not expected to be an Executive Order 

13771 regulatory action. 

Response: NMFS is promulgating this 

regulation under the authority of the 

WCPFC Implementation Act to carry out 

the obligations of the United States 

under the Convention, including the 

decisions of the Commission. The final 

rule implements recent WCPFC 

decisions. The final rule is not 

considered an Executive Order 13771 

regulatory action because it is not 

considered economically significant 

under Executive Order 12886 as it is not 

expected to have an annual effect on the 

economy of $100 million or more. 

Comment 13: One purse seine 

industry representative commented that 

there is no conservation value in high 

seas area closures as they are not an 

effective way of managing pelagic 

species. The commenter stated that the 

high seas limits are a strictly economic 

device being pushed by various 

members of the Commission. Another 

purse seine industry representative 

stated that the separate effort limits 

provide no conservation benefits. 

Response: NMFS agrees that there are 

no substantial differences between 

implementing a combined limit and 

separate limits in terms of effects on 

living marine resources, as described in 

the PEA. The potential for beneficial 

effects on living marine resources from 

the effort limits would stem from 

whether implementation of effort limits 

would lead to an overall reduction in 

fishing effort in the WCPO (see the 

discussion of cumulative impacts in the 

PEA). 

Changes From Proposed Rule 

One change from the proposed 

regulations have been made in these 

final regulations. The purse seine 

fishing effort limits specified at 50 CFR 

300.223(a) are being implemented for 

calendar year 2018 only. 

Classification 

The Administrator, Pacific Islands 

Region, NMFS, has determined that this 

final rule is consistent with the WCPFC 

Implementation Act and other 

applicable laws. 

Administrative Procedure Act 

There is good cause under 5 U.S.C. 

553(d)(3) to waive the 30-day delay in 

effective date for the provisions 

regarding the FAD prohibition period 

for purse seine vessels set forth at 50 

CFR 300.223(b)(2)(i). The FAD 

prohibition period is intended to reduce 

or otherwise control fishing pressure on 

bigeye tuna in the WCPO in order to 

maintain this stock to levels capable of 

producing maximum sustainable yield 

on a continuing basis. The Commission 

adopted a start date of July 1, 2018, for 

the first FAD prohibition period. 

Delaying the effective date of this 

provision increases the risk that the 

Commission’s FAD prohibition period 

will become effective prior to the 

effective date of the final rule, resulting 

in the United States’ non-compliance 

with its international obligations, which 

is contrary to the requirements of the 

WCPFC Implementation Act, and in 

turn contrary to the public interest. 


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Coastal Zone Management Act (CZMA) 

NMFS determined that this action is 

consistent to the maximum extent 

practicable with the enforceable policies 

of the approved coastal management 

programs of American Samoa, the 

Commonwealth of the Northern Mariana 

Islands (CNMI), Guam, and the State of 

Hawaii. Determinations to Hawaii and 

each of the Territories were submitted 

on March 12, 2018, for review by the 

responsible state and territorial agencies 

under section 307 of the CZMA. 

Responses to the determination were 

received from Hawaii, CNMI, and 

Guam. CNMI and Guam concurred that 

the proposed project would be 

conducted in a manner that is consistent 

with the coastal management programs 

in CNMI and Guam. The State of 

Hawaii, noting that the U.S. WCPO 

purse seine fishery and the longline 

fisheries operate outside of the 

jurisdiction of the Hawaii CZM Program 

enforceable policies, confirmed that 

they would not be submitting a response 

to the determination. No response was 

received from American Samoa. NMFS 

presumes American Samoa’s 

concurrence, pursuant to 15 CFR 

930.41(a). 

Executive Order 12866 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

Regulatory Flexibility Act (RFA) 

A final regulatory flexibility analysis 

(FRFA) was prepared as required by 

section 604 of the RFA. The FRFA 

incorporates the initial regulatory 

flexibility analysis (IRFA) prepared for 

the proposed rule. The analysis in the 

IRFA is not repeated here in its entirety. 

A description of the action, why it is 

being considered, and the legal basis for 

this action are contained above in the 

SUMMARY section and this 

SUPPLEMENTARY INFORMATION section of 

the preamble of this final rule. The 

FRFA analysis follows: 

Significant Issues Raised by Public 

Comments in Response to the IRFA 

NMFS did not receive any comments 

that responded specifically to the IRFA, 

but several comments on the proposed 

rule from U.S. purse seine industry 

representatives related to NMFS’ 

assessment of the economic effects of 

the proposed rule, and thus could be 

relevant to the IRFA. See the discussion 

above summarizing Comments 3, 4, 5, 

and 12 and providing NMFS’ responses 

to those comments. 

Description of Small Entities to Which 

the Rule Will Apply 

For Regulatory Flexibility Act 

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 final rule applies 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 fisheries of American 

Samoa, CNMI, or Guam), purse seine 

vessels, and albacore troll vessels. Based 

on the number of U.S. vessels with a 

WCPFC Area Endorsement, which is 

required to fish on the high seas in the 

Convention Area, the estimated 

numbers of affected longline, purse 

seine, and albacore troll fishing vessels 

are 158, 37, and 22, respectively. 

Based on limited financial 

information about the affected fishing 

fleets, and using individual vessels as 

proxies for individual businesses, 

NMFS believes that all of the affected 

longline and albacore troll vessels, and 

slightly more than half 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 million. Within the 

purse seine fleet, analysis of average 

revenue, by vessel, for the three years of 

2014–2016 reveals that average annual 

revenue among vessels in the fleet was 

about $10.2 million, and the annual 

averages were less than the $11 million 

threshold for 22 vessels in the fleet. 

Recordkeeping, Reporting, and Other 

Compliance Requirements 

The reporting, recordkeeping and 

other compliance requirements of this 

final 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 described 

below for each of the first four elements 

of the final rule. The fifth element of the 

final rule, which provides 

administrative changes to existing 

regulations, is not considered further in 

this FRFA, as it is of a housekeeping 

nature and will not have any 

substantive effects on any entities. 

1. Longline Bigeye Tuna Catch Limits 

This element of the final rule will not 

establish any new reporting or 

recordkeeping requirements. The new 

compliance requirement is 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 3,554 mt 

(reduced by the amount of any overages 

in the preceding year) is reached in any 

of the years 2018–2020, for the 

remainder of the calendar year, subject 

to the exceptions and provisos 

described in other sections of this 

SUPPLEMENTARY INFORMATION section of 

the preamble. Although the restrictions 

that would come into effect in the event 

the catch limit is reached would not 

prohibit longline fishing, per se, they 

are sometimes referred to in this 

analysis as constituting a fishery 

closure. 

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 

final rule could cause foregone fishing 

opportunities and result in associated 

economic losses in the event that the 

bigeye tuna catch limit is reached in any 

of the years 2018–2020 and the 

restrictions on retaining, landing, and 

transshipping bigeye tuna are imposed 

for portions of those years. These costs 

cannot be projected quantitatively with 

any certainty. The annual limit of 3,554 

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 2009–2016, when 

limits were in place, there appears to be 

a relatively high likelihood of the limits 

being reached in 2018–2020. In 2015, 

for example, which saw exceptionally 

high catches of bigeye tuna, the limit of 

3,502 mt was estimated to have been 

reached by, and the fishery was closed 

on, August 5 (see temporary rule 

published July 28, 2015; 80 FR 44883). 

The fishery was subsequently re-opened 

for vessels included in agreements with 

the governments of the CNMI and Guam 

under regulations implementing 

Amendment 7 to the Fishery Ecosystem 

Plan for Pelagic Fisheries of the Western 

Pacific Region (Pelagics FEP) (50 CFR 

665.819). In 2016, the limit of 3,554 mt 

was estimated to have been reached by 

September 9, 2016, and in 2017, the 


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limit of 3,138 mt was estimated to have 

been reached by September 1, 2017. 

Thus, if bigeye tuna catch patterns in 

2018–2020 are like those in 2005–2008, 

the limit will be reached in the fourth 

quarter of the year, and if they are like 

those in 2015, 2016, or 2017, the limit 

will be reached in the third quarter of 

the year. 

If the bigeye tuna limit is reached 

before the end of any of the years 2018– 

2020 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 final rule is not 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 

final 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 final 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 final rule, bigeye tuna 

catches in the Convention Area in each 

of the years 2018–2020 would be 5,000 

mt, slightly more than the average in 

2005–2008. Under this scenario, 

imposition of the annual limits of 3,554 

mt would result in 29 percent less 

bigeye tuna being caught each year 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 final rule, revenues in 2018–2020 to 

entities that participate exclusively in 

the deep-set fishery would be 

approximately 29 percent less than 

under no action. Average annual exvessel revenues (from all species) per mt 

of bigeye tuna caught during 2005–2008 

were about $14,190/mt (in 2014 dollars, 

derived from the latest available annual 

report on the pelagic fisheries of the 

western Pacific Region (Western Pacific 

Regional Fishery Management Council, 

2014, Pelagic Fisheries of the Western 

Pacific Region: 2012 Annual Report. 

Honolulu, Western Pacific Fishery 

Management Council)). If there are 128 

active vessels in the fleet, as there were 

during 2005–2008, on average, then 

under the no-action scenario of fleetwide anual catches of 5,000 mt, each 

vessel would catch 39 mt/yr, on average. 

Reductions of 29 percent in 2018–2020 

as a result of the limits would be about 

11 mt per year. Applying the average exvessel revenues (from all species) of 

$14,190 per mt of bigeye tuna caught, 

the reductions in ex-vessel revenue per 

vessel would be $160,000 per year, on 

average. 

In the shallow-set fishery, affected 

entities will bear limited costs in the 

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 will 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 shallowsetting in the EPO, which is to the east 

of 150 degrees W longitude, whichever 

is less. In the fourth calendar quarters of 

2005–2008, almost all shallow-setting 

effort took place in the EPO, and 97 

percent of bigeye tuna catches were 

made there, so the cost of a bigeye tuna 

fishery closure to shallow-setting 

vessels appear to be very limited. 

During 2005–2008, the shallow-set 

fishery caught an average of 54 mt of 

bigeye tuna per year from the 

Convention Area. If the bigeye tuna 

catch limit is reached even as early as 

July 31 in any of the years 2018–2020, 

the Convention Area shallow-set fishery 

would have caught at that point, based 

on 2005–2008 data, on average, 99 

percent of its average annual bigeye 

tuna catches. Imposition of the landings 

restriction at that point in any of the 

years 2018–2020 would result in the 

loss of revenues from approximately 0.5 

mt (1 percent of 54 mt) of bigeye tuna, 

which, based on recent ex-vessel prices, 

would be worth no more than $5,000. 

Thus, expecting about 27 vessels to 

engage in the shallow-set fishery (the 

annual average in 2005–2012), the 

average of those potentially lost annual 

revenues would be no more than $200 

per vessel. It should be noted that for 

2018, shallow-set longline fishing is no 

longer an available opportunity, as the 

fishery was closed, effective May 8, 

2018, for the remainder of 2018 (see 

temporary rule published May 11, 2018; 

83 FR 21939). 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 will 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 will 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 

will 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; but as noted 

above, this opportunity is no longer 

available in 2018), (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 


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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), (5) and (6) 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. 

Before examining in detail the two 

potential alternative fishing 

opportunities that appear to be the most 

attractive to affected entities, it is 

important to note that under the final 

rule, once the limit is reached and the 

WCPO bigeye tuna fishery is closed, 

fishing with longline gear both inside 

and outside the Convention Area during 

the same trip will 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 will bring costs, because it 

will constrain the potential profits from 

alternative opportunities. Those costs 

cannot be quantified. 

A vessel could take advantage of the 

first alternative opportunity (deepsetting 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 sashimigrade 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 final 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), will be 

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 23 in 

2016. 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– 

2017 (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, 2016, and 2017 the 

fishery was closed but then reopened 

when agreements went into effect. 

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), will 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 (83 FR 15503; April 

11, 2018). The final rule establishes an 

annual limit of 750 mt on the catch of 

bigeye tuna in the EPO by vessels at 

least 24m in length in each of the years 

2018–2020. 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). The limit was not reached in 

2017. 

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 limits in 2018–2020 are 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 


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2 percent to 11 percent, and may have 

been constrained by the IATTC-adoped 

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 deepset fishing effort to the EPO could occur. 

In 2009, 2010, 2011, 2012, 2013, 2014, 

2015, and 2016 the proportions of the 

fishery’s annual bigeye tuna catches that 

were captured in the EPO were about 

16, 27, 23, 19, 36, 35, 47, and 36 

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 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 exvessel 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 

2018–2020—or it could lead to a more 

permanent change in the market (e.g., as 

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 exvessel 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 2020. 

The potential economic effects 

identified above will vary among 

individual business entities, but it is not 

possible to predict the range of 

variation. Furthermore, the impacts on a 

particular entity will depend on both 

that entity’s response to the final 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 will 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 final 

rule on affected longline fishing entities 

could be roughly $160,000 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 2018–2020 

and the terms of the agreements are 

such that the U.S. longline fleet is 

effectively unconstrained by the catch 

limits). 

2. FAD Restrictions 

This element of the final rule does not 

establish any new reporting or 

recordkeeping requirements. The new 

requirement is for affected vessel 

owners and operators to comply with 

the FAD restrictions described earlier in 

the SUPPLEMENTARY INFORMATION section 

of the preamble, including FAD 

prohibition periods throughout the 

Convention Area from July 1 through 

September 30 in each of the years 2018– 

2020 and FAD prohibition periods just 

on the high seas in the Convention Area 

from November 1 through December 31 

in each of the same years. There also is 


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a limit of 350 active FADs that may be 

deployed per vessel at any given time. 

Anecdotal information from the U.S. 

purse seine fishing industry indicates 

that U.S. purse seine vessels have not 

ever deployed more than 350 active 

FADs at any given time, so NMFS does 

not expect that the limit will be 

constraining or otherwise affect the 

behavior of purse seine operations, and 

it is not considered further in this 

FRFA. 

Fulfillment of the element’s 

requirements is not expected to require 

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. 

The proposed FAD restrictions would 

substantially constrain the manner in 

which purse seine fishing could be 

conducted in the specified areas and 

periods in the Convention Area; in those 

areas and during those periods, vessels 

would be able to set only on free, or 

‘‘unassociated,’’ schools. 

With respect to the three-month FAD 

closure throughout the Convention 

Area: Assuming that sets would be 

evenly distributed through the year, the 

number of annual FAD sets would be 

expected to be about three-fourths the 

number that would occur without a 

seasonal FAD closure. For example, 

during 2014–2016, the proportion of all 

sets that were made on FADs when FAD 

setting was allowed was 50 percent. As 

an indicative example, if the fleet makes 

8,000 sets in a given year (somewhat 

more than the 2014–2016 average of 

7,420 sets per year) and 50 percent of 

those are FAD sets, it would make 4,000 

FAD sets. If there is a three-month 

closure and 50 percent of the sets 

outside the closure are FAD sets, and 

sets are evenly distributed throughout 

each year, the annual number of FAD 

sets would be 3,000. This can be 

compared to the estimated 2,494 annual 

FAD sets that were made in 2014–2016, 

on average, when there were threemonth FAD closures. 

With respect to the two-month high 

seas FAD closure: The effects of this 

element are difficult to predict. If the 

high seas are closed to all purse seine 

fishing during November–December as a 

result of the fishing effort limit being 

reached, the high seas FAD closure 

during those two months would have no 

additional effect whatsoever. If the high 

seas are not closed to fishing, the 

prohibition on FAD setting would make 

the high seas less favorable for fishing 

than they otherwise would be, because 

only unassociated sets would be 

allowed there. It is not possible to 

characterize how influential that factor 

would be, however. Thus, it is not 

possible to predict the effects in terms 

of the spatial distribution of fishing 

effort or the proportion of fishing effort 

that is made on FADs. 

With respect to both the three-month 

FAD closure and two-month high seas 

FAD closure: As for the limits on fishing 

effort, vessel operators might choose to 

schedule their routine maintenance 

periods so as to take best advantage of 

the available opportunities for making 

FAD sets, such as during the FAD 

closures. However, the limited number 

of vessel maintenance facilities in the 

region might constrain vessel operators’ 

ability to do this. 

It is emphasized that the indicative 

example given above is based on the 

assumption that the FAD set ratio would 

be 50 percent during periods when FAD 

sets are allowed, as well as that sets are 

distributed evenly throughout the year. 

These assumptions are weak from 

several perspectives, so the results 

should be interpreted with caution. 

First, as described above, FAD set ratios 

have varied widely from year to year, 

indicating that the conditions that 

dictate ‘‘optimal’’ FAD set ratios for the 

fleet vary widely from year to year, and 

cannot be predicted with any certainty. 

Second, the optimal FAD set ratio 

during open periods might depend on 

how long and when those periods occur. 

For example, FAD fishing might be 

particularly attractive soon after a 

closed period during which FADs 

aggregated fish but were not fished on. 

These factors are not explicitly 

accounted for in this analysis, but the 50 

percent FAD ratio used in this analysis 

was taken from 2014–2016, when there 

was a three-month FAD closure, so it is 

probably a better indicator for the action 

alternatives than FAD set ratios for years 

prior to 2009, when no seasonal FAD 

closures were in place. With respect to 

the distribution of sets through the year, 

the existence of collective limits on 

fishing effort might create an incentive 

for individual vessels to fish harder 

earlier in the year than they otherwise 

would, resulting in a ‘‘race to fish.’’ 

Limitations on fishing effort throughout 

the Convention Area could cause 

vessels to fish (irrespective of set type 

or the timing of FAD closures) harder 

earlier in a given year than they would 

without the limits. However, any such 

effect is not expected to be great, 

because most vessels in the fleet tend to 

fish virtually full time, leaving little 

flexibility to increase fishing effort at 

any particular time of the year. 

Vessels in the U.S. WCPO purse seine 

fleet make both unassociated sets and 

FAD sets when not constrained by 

regulation, so one type of set is not 

always more valuable or efficient than 

the other type. Which set type is 

optimal at any given time is a function 

of immediate conditions in and on the 

water, but probably also of such factors 

as fuel prices (unassociated sets involve 

more searching time and thus tend to 

bring higher fuel costs than FAD sets) 

and market conditions (e.g., FAD 

fishing, which tends to result in greater 

catches of lower-value skipjack tuna and 

smaller yellowfin tuna and bigeye tuna 

than unassociated sets, might be more 

attractive and profitable when canneries 

are not rejecting small fish). Clearly, the 

ability to do either type of set is 

valuable, and constraints on the use of 

either type can be expected to bring 

adverse economic impacts to fishing 

operations. Thus, the greater the 

constraints on the ability to make FAD 

sets, the greater the expected economic 

impacts of the action. Because the 

factors affecting the relative value of 

FAD sets and unassociated sets are 

many, and the relationships among 

them are not well known, it is not 

possible to quantify the expected 

economic impacts of the FAD 

restrictions. However, it appears 

reasonable to conclude the following: 

First, the FAD restrictions will 

adversely impact producer surplus 

relative to the no-action alternative. The 

fact that the fleet has made such a 

substantial portion of its sets on FADs 

in the past indicates that prohibiting the 

use of FADs in the specified areas and 

periods could bring substantial costs 

and/or revenue losses. Second, vessel 

operators might be able to mitigate the 

impacts of the FAD restrictions by 

scheduling their routine vessel and 

equipment maintenance during the FAD 

closures, but this opportunity might be 

constrained by the limited vessel 

maintenance facilities in the region. 

3. Purse Seine Fishing Effort Limits 

This element of the final rule does not 

establish any new reporting or 

recordkeeping requirements, but the 

existing ‘‘Daily FAD reports’’ required at 

50 CFR 300.218(g) are slightly revised, 

and renamed ‘‘Daily purse seine fishing 

effort reports’’ and slightly modify the 

type of information collected. 

There are annual limits of 1,370 and 

458 fishing days on the high seas and in 

the U.S. EEZ, respectively, in the 

Convention Area. In addition, there is a 

mechanism to increase the U.S. EEZ 

limit in a given year to 558 fishing days 

if 458 fishing days are used by October 

1 of that year. 

Fulfillment of this element’s 

requirements is not expected to require 

any professional skills that the vessel 

owners and operators do not already 


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possess. The costs of complying with 

the requirements are described below to 

the extent possible. 

Regarding the modification to the 

daily reporting requirement, the specific 

information required in the reports are 

slightly modified from those of the 

existing ‘‘Daily FAD reports,’’ but the 

costs of compliance are not expected to 

change. 

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 of the 

years 2018–2020, owners and operators 

of U.S. purse seine vessels will 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 cause 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. 

Regarding the U.S. EEZ, from 2009 

through 2017, no more than 47 percent 

of the proposed limit of 458 fishing days 

was ever used (and no more than the 39 

percent of the possible limit of 558 

fishing days). This history suggests a 

relatively low likelihood of the EEZ 

limit being reached in 2018–2020. 

However, the allowance for an extra 100 

fishing days if the 458 fishing days are 

used by October 1 could provide an 

incentive for the fleet to use more 

fishing days in the EEZ than it 

otherwise would. Furthermore, this 

would be the first time that separate 

limits would be established for the EEZ 

and the high seas, so the incentives for 

individual vessels in the fleet will 

change relative to previous years. A 

minority of the fleet is authorized to fish 

in the U.S. EEZ (9 of the 37 vessels in 

the fleet have fishery endorsements on 

their U.S. Coast Guard Certificates of 

Documentation, which are required to 

fish in the U.S. EEZ; 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, pursuant to the terms of the 

SPTT). With a separate limit for the U.S. 

EEZ, this minority might take more 

advantage of it than it has in the past. 

Regarding the high seas, from 2009 

through 2017, between 29 and 134 

percent of the annual limit of 1,370 

fishing days was used, and at least 100 

percent was used in three of the nine 

years. In two years, 2015 and 2016, the 

ELAPS was closed for part of the year 

(starting June 15 in 2015, and September 

2 in 2016), so more fishing effort might 

have occurred in those two years were 

there no limits. This history suggests a 

substantial likelihood of the high seas 

limit of 1,370 fishing days being reached 

in any of the years 2018–2020. 

Two factors could have a substantial 

influence on the amount of fishing effort 

in the U.S. EEZ and on the high seas in 

2018–2020: 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 

Nin ̃ 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 the Pacific Island 

Parties to the SPTT (PIPs) agreed upon 

a revised SPTT, and under this new 

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 

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 new SPTT 

regime 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 years, so 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. 

Additionally, effective January 1, 

2015, Kiribati prohibited commercial 

fishing in the Phoenix Islands Protected 

Area, which is a large portion of the 

Kiribati EEZ around the Phoenix 

Islands. These limitations in the Kiribati 

EEZ in 2015 probably made fishing in 

the ELAPS more attractive than it 

otherwise would be. 

Regarding El Nin ̃ o Southern 

Oscillation (ENSO) conditions, the 

eastern areas of the WCPO tend to be 

comparatively more attractive to the 

U.S. purse seine fleet during El Nin ̃ 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 Nin ̃ o events (as 

compared to neutral or La Nin ̃ 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 Nin ̃ o Index, a common measure 

of ENSO conditions, over the life of the 

SPTT through 2010. 

El Nin ̃ 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 ELAPS in 

those years. ENSO neutral conditions 

began in the latter half of 2016, and 

continued until the fourth quarter of 

2017, when there was a shift to La Nin ̃ a 

conditions, which persisted through 

early 2018 (and which is consistent with 

the moderate rates of fishing in the 

ELAPS in 2017). As of May 10, 2018, the 

National Weather Service states that in 

April 2018 ENSO-neutral conditions 

returned, and are predicted to continue 

at least through September–November 

2018. The Northern Hemisphere 2018– 

2019 winter has about 50% probability 

of El Nin ̃ o conditions (National Oceanic 

and Atmospheric Administration, 

National Weather Service, Climate 

Prediction Center. Web page accessed 

June 12, 2018: www.cpc.ncep.noaa.gov/ 

products/analysis_monitoring/enso_

advisory/index.shtml). Thus ENSO 

conditions are likely to have a largely 

neutral influence through the Northern 

Hemisphere fall of 2018, followed by a 

growing probability of conditions that 

favor fishing in the ELAPS during the 

Northern Hemisphere 2018–2019 

winter. The influence of ENSO 

conditions on fishing effort after that 

cannot be predicted with any certainty. 

Another potentially important factor 

is that the EEZ and high seas limits are 

competitive limits, so they 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 one or both areas than they would if 

there were no limits. On the one hand, 

any such race-to-fish effect might be 

reflected in the history of fishing in the 

ELAPS, described above.Anecdotal 

information from the fishing industry 

suggests that the limits might have been 

internally allocated by the fleet in the 

past, which might have tempered any 

race to fish. It is not known whether the 

industry intends to internally allocate 

the limits established in this final rule. 


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In summary, although difficult to 

predict, either the U.S. EEZ or high seas 

limits could be reached in any of the 

years 2018–2020, especially the high 

seas limits. If either limit is reached in 

a given year, the fleet will 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 and a connection between U.S. 

purse seine vessels and the broader 

American Samoa economy. 

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 

9, including 8 vessels with SPTT 

licenses and one additional vessel 

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 Pacific Island country 

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 2017, there were 17 

purse seine vessels in the WCPO fleet 

that are also listed on the 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 

m3 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 such 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, in 

2018 vessels probably will not have the 

opportunity to fish in the EPO yearround. To implement a recent decision 

of the IATTC, NMFS has published a 

final rule that requires purse seine 

vessels to choose between two EPO 

fishing prohibition periods each year in 

2018–2020: July 29–October 8 or 

November 9–January 19 (72 days in 

either case). 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. 

With respect to not fishing at all 

during a closure of the U.S. EEZ or high 

seas: This 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, 

to give an indication of the magnitude 

of possible economic impacts to 

producers in the fishery (i.e., an 

indication of the upper bound of those 

impacts), information on revenues per 

day is provided here. 

The last five years for which catch 

estimates for the U.S. WCPO purse seine 

fleet are available are 2012–2016. Those 

estimates, adjusted to an indicative fleet 

size of 35 vessels, equate to annual 

average catches of skipjack tuna, 

yellowfin tuna, and bigeye tuna of 

236,077 mt, 24,802 mt, and 4,213 mt, 

respectively, or 265,091 mt in total. 

Applying an indicative current Bangkok 

cannery price for skipjack tuna of 

$1,500 per mt to all three species, the 

value of annual fleet-wide catches at 

2012–2016 average levels would be 

about $398 million, equivalent to a little 

more than $1 million per calendar day, 

on average. It should be noted that 

cannery prices are fairly volatile; for 

example, cannery prices are much lower 

now than prices during most of 2017. 

In addition to the effects described 

above, the purse seine effort limits 

could affect the temporal distribution of 

fishing effort in the U.S. purse seine 

fishery. Since the limits will apply fleetwide—that is, they will 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. Such a race-to-fish effect might 

also be expected in the time period 

between when a closure of the fishery 

is announced and when it is actually 

closed, which would be at least seven 

calendar days. 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, 

as well as other domestic fleets. 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. 

4. Eastern High Seas Special 

Management Area 

This element of the final rule removes 

a reporting/recordkeeping requirement, 

the requirement to notify NMFS when 

entering and exiting the EHSSMA. It 

also establishes a prohibition on 

transshipment in the EHSSMA. 

Fulfillment of this element’s 

requirements is not expected to require 

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. 


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Regarding the entry/exit notices, 

when NMFS established the 

requirement in 2012 (final rule 

published December 3, 2012; 77 FR 

71501), it estimated that each report 

would require about 15 minutes of labor 

(at a labor cost of about $60 per hour) 

and no more than $1 in communication 

costs, for an estimated total cost of 

compliance of about $16 per notice. At 

that time, NMFS estimated that each 

longline vessel would enter and exit the 

EHSSMA between zero and 

approximately four times per year 

(requiring 0–8 notices per year at an 

annual cost of $0–128), each purse seine 

vessel would do so between zero and 

approximately two times per year 

(requiring 0–4 notices per year at an 

annual cost of $0–64), and each albacore 

troll vessel would do so between zero 

and two times per year (requiring 0–4 

notices per year at an annual cost of $0– 

64). According to the notices received 

by NMFS, zero longline vessels and zero 

albacore troll vessels have entered the 

EHSSMA from 2013 through 2017, and 

there have been nine entries/exits by 

purse seine fishing vessels. In any case, 

under the final rule, commercial fishing 

vessels will be relieved of about $16 in 

compliance costs each time they enter 

or exit the EHSSMA. 

Disproportionate Impacts 

As described above, the type of the 

impacts will vary greatly among fishing 

gear types (i.e., longline versus albacore 

troll versus purse seine), and the 

magnitude of the impacts also could 

vary greatly by fishing gear type (but 

they are difficult to quantify and 

compare). Nevertheless, all the affected 

entities in the longline and albacore 

troll fishing sectors are small entities, so 

there will be no disproportionate 

impacts between small and large entities 

within those sectors. In the purse seine 

fishing sector, slightly more than half 

the affected entities are small entities. 

The direct effect of the final rule will be 

to constrain fishing effort by purse seine 

fishing vessels, with consequent 

constraining effects on both revenues 

(because catches would be less) and 

operating costs (because less fishing 

would be undertaken). Although some 

purse seine fishing entities are larger 

than others, NMFS is not aware of any 

differences between the small entities 

and the large entities (as defined by the 

RFA) in terms of their capital costs, 

operating costs, or other aspects of their 

businesses. Accordingly, there is no 

information to suggest that the direct 

adverse economic impacts on small 

purse seine entities will be 

disproportionately greater than those on 

large purse seine entities. 

Steps Taken To Minimize the 

Significant Economic Impacts on Small 

Entities 

NMFS has sought to identify 

alternatives that would minimize the 

final rule’s economic impacts on small 

entities (‘‘significant alternatives’’). 

Taking no action could result in lesser 

adverse economic impacts than the final 

rule for affected entities (but as 

described below, for some affected 

longline entities, the final rule could be 

more economically beneficial than noaction), but NMFS has rejected the noaction alternative because it would be 

inconsistent with the United States’ 

obligations under the Convention. 

Alternatives identified for each of the 

four elements of the final rule are 

discussed below. 

1. Longline Bigeye Tuna Catch Limits 

NMFS has not identified any 

significant alternatives for this element 

of the final rule, other than the noaction alternative. 

2. FAD Restrictions 

NMFS considered in detail one 

alternative to this element of the final 

rule, but only with respect to the timing 

of the two-month FAD closure for the 

high seas. CMM 2017–01 allows 

members to choose either November– 

December, as in this final rule, or April– 

May. NMFS has compared the expected 

direct economic impacts of the two 

alternatives on purse seine fishing 

businesses in the regulatory impact 

review prepared for the proposed rule. 

The analysis finds that a November– 

December closure is more likely to have 

a lesser direct economic impact on those 

businesses than an April–May closure, 

primarily because the later closure 

period is more likely to run 

concurrently with a closure of the high 

seas in the Convention Area to purse 

seine fishing (if the fishing effort limit 

in this final rule is reached), in which 

case the FAD closure would bring no 

additional economic impacts. NMFS has 

rejected the alternative of an April–May 

FAD closure for that reason. Please see 

Comment 5 above, for a summary of the 

comments received on this matter, as 

well as NMFS’ response to those 

comments. 

3. Purse Seine Fishing Effort Limits 

In the past, Commission decisions did 

not expressly limit NMFS’ ability to 

implement the U.S. purse seine fishing 

effort limits on the high seas and in the 

U.S. EEZ as a single combined limit in 

the ELAPS. As described above, for this 

final rule, in light of the plain language 

of Paragraph 29 of CMM 2017–01, 

which sets forth specific rules and 

guidelines regarding transferring fishing 

days from the U.S. EEZ limit to the high 

seas limit for the United States for 2018, 

we believe we are required to separately 

establish and enforce the U.S. high seas 

limit and the U.S. EEZ limit. Thus, 

NMFS is not implementing the 

alternative of combining the two limits 

into a single limit for the ELAPS for 

2018. However, NMFS has analyzed this 

alternative here and in the revised RIR 

and, and will continue to consider this 

alternative in 2019 or 2020 (as described 

in the proposed rule and the RIR, the 

analysis for the rule is for a three-year 

time period), to the extent it is 

consistent with future Commisison 

decisions on tropical tuna management. 

A combined limit would provide 

1,828 fishing days per calendar year in 

the ELAPS (versus, under the rule, an 

annual limit of 1,370 fishing days on the 

high seas and a separate annual limit of 

458 fishing days in the U.S. EEZ, with 

the possibility of an increase in the 

latter to 558 fishing days if the 458 

fishing days are used by October 1, 

2018). It is difficult to predict the 

behavior and performance of vessels 

under these two alternatives, but they 

could have different economic impacts 

on fishing businesses. The rule, with 

separate limits, offers the potential of 

more fishing days per year (1,928) than 

under the alternative of a combined 

limit (1,828). However, it does not 

appear likely that 458 fishing days will 

be used in the U.S. EEZ by October 1, 

2018, so it is likely that both alternatives 

offer a total of 1,828 fishing days. A 

single combined limit offers more 

operational flexibility for the fleet as a 

whole than separate limits, and that 

greater flexibility would be expected to 

result in fewer losses to some or most 

of the affected fishing businesses. For 

example, under separate limits, the U.S. 

EEZ limit appears less constraining than 

the high seas limit, so it would likely be 

more costly to the fleet as a whole to 

make full use of both limits than it 

would to make full use of the single 

combined limit. However, the expected 

impacts of the two alternatives on 

fishing businesses would be dependent 

on whether a given vessel has a fishery 

endorsement on its U.S. Coast Guard 

Certificate of Documentation, which is 

required to fish in the U.S. EEZ. With 

separate limits for the U.S. EEZ and 

high seas, those vessels without fishery 

endorsements, which comprise the 

majority of the fleet, would not have 

access to the 458 (or possibly 558) 

fishing days per year for the U.S. EEZ, 

but under a combined limit for the 

ELAPS, those fishing days could be 

used on the high seas, so they would be 


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effectively available to all affected 

fishing businesses. Thus, a single 

combined limit would appear to be 

more favorable to vessels without 

fishery endorsements. Having separate 

limits could be advantageous to vessels 

with fishery endorsements if the high 

seas limit is reached before the U.S. EEZ 

limit is reached, which appears likely 

for 2018. In that case, the remainder of 

the limit for the U.S. EEZ would be 

available only to vessels with fishery 

endorsements. If the U.S. EEZ limit 

were more constraining than the high 

seas limit under separate limits (which 

it appears not to be), then separate 

limits would appear to be less 

advantageous to vessels with fishery 

endorsements than a combined limit, 

since under a combined limit they 

would have more time to fish in both 

the U.S. EEZ and on the high seas. 

4. Eastern High Seas Special 

Management Area 

NMFS has not identified any 

significant alternatives for this element 

of the final rule, other than the noaction alternative. 

Small Entity Compliance Guide 

Section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 states that, for each rule or group 

of related rules for which an agency is 

required to prepare a FRFA, the agency 

shall publish one or more guides to 

assist small entities in complying with 

the rule, and shall designate such 

publications as ‘‘small entity 

compliance guides.’’ The agency shall 

explain the actions a small entity is 

required to take to comply with a rule 

or group of rules. NMFS has prepared 

small entity compliance guides for this 

rule, and will send the appropriate 

guides to holders of permits in the 

relevant fisheries. The guides and this 

final rule also will be available at 

www.fpir.noaa.gov and by request from 

NMFS PIRO (see ADDRESSES). 

Paperwork Reduction Act 

This final rule contains a revised 

collection-of-information requirement 

subject to review and approval by OMB 

under the PRA. This requirement has 

been submitted to OMB for approval 

under Control Number 0648–0649. 

Public reporting burden for the daily 

report of purse seine effort information 

is estimated to average 10 minutes per 

response, including the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

information. 

One comment was received on this 

collection-of-information requirement in 

response to the proposed rule (see 

Comment 10 and NMFS’ response, 

above). Send comments on these or any 

other aspects of the collection of 

information to Michael D. Tosatto, 

Regional Administrator, NMFS PIRO 

(see ADDRESSES), and by email to OIRA_

Submission@omb.eop.gov or fax to 202– 

395–5806. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, and no person shall be 

subject to penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB control number. 

List of Subjects in 50 CFR Part 300 

Administrative practice and 

procedure, Fish, Fisheries, Fishing, 

Marine resources, Reporting and 

recordkeeping requirements, Treaties. 

Dated: July 13, 2018. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR part 300 is amended 

as follows: 

PART 300—INTERNATIONAL 

FISHERIES REGULATIONS 

Subpart O—Western and Central 

Pacific Fisheries for Highly Migratory 

Species 

■ 1. The authority citation for 50 CFR 

part 300, subpart O, continues to read as 

follows: 

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

■ 2. In § 300.211, add a definition in 

alphabetical order for ‘‘Active FAD’’ to 

read as follows: 

§ 300.211 Definitions. 

* * * * * 

Active FAD is a FAD that is equipped 

with a buoy with a clearly marked 

reference number allowing its 

identification and equipped with a 

satellite tracking system to monitor its 

position. 

* * * * * 

■ 3. In § 300.217, revise paragraph (b)(1) 

to read as follows: 

§ 300.217 Vessel identification. 

* * * * * 

(b) * * * 

(1) Vessels shall be marked in 

accordance with the identification 

requirements of § 300.336(b)(2), and if 

an IRCS has not been assigned to the 

vessel, then the Federal, State, or other 

documentation number used in lieu of 

the IRCS must be preceded by the 

characters ‘‘USA’’ and a hyphen (that is, 

‘‘USA-’’). 

* * * * * 

■ 4. In § 300.218, revise paragraphs 

(a)(2)(v) and (g) to read as follows: 

§ 300.218 Reporting and recordkeeping 

requirements. 

(a)* * * 

(2)* * * 

(v) High seas fisheries. Fishing 

activities subject to the reporting 

requirements of § 300.341 must be 

maintained and reported in the manner 

specified in § 300.341(a). 

* * * * * 

(g) Daily purse seine fishing effort 

reports. If directed by NMFS, the owner 

or operator of any fishing vessel of the 

United States equipped with purse seine 

gear must report to NMFS, for the 

period and in the format and manner 

directed by the Pacific Islands Regional 

Administrator, within 24 hours of the 

end of each day that the vessel is at sea 

in the Convention Area, the activity of 

the vessel (e.g., setting, transiting, 

searching), location and type of set, if a 

set was made during that day. 

* * * * * 

■ 5. In § 300.222, revise paragraphs (v), 

(w), (oo), and (pp) to read as follows: 

§ 300.222 Prohibitions. 

* * * * * 

(v) Use a fishing vessel equipped with 

purse seine gear to fish in an area closed 

to purse seine fishing under 

§ 300.223(a). 

(w) Set a purse seine around, near or 

in association with a FAD or a vessel, 

deploy, activate, or service a FAD, or 

use lights in contravention of 

§ 300.223(b). 

* * * * * 

(oo) Transship in the Eastern High 

Seas Special Management Area in 

contravention of § 300.225. 

(pp) Fail to submit, or ensure 

submission of, a daily purse seine 

fishing effort report as required in 

§ 300.218(g). 

* * * * * 

■ 6. In § 300.223, revise paragraphs (a) 

and (b) to read as follows: 

§ 300.223 Purse seine fishing restrictions. 

* * * * * 

(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 operate in the 

Convention Area in the area between 


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20° N latitude and 20° S latitude in a 

calendar year. 

(1) For the high seas there is a limit 

of 1,370 fishing days in 2018. 

(2) For the U.S. EEZ there is a limit 

of 458 fishing days for 2018. If NMFS 

expects that this limit will be reached 

by October 1, 2018, NMFS will publish 

a document in the Federal Register 

increasing the limit for that calendar 

year to 558 fishing days no later than 

seven days prior to October 1, 2018. 

(3) NMFS will determine the number 

of fishing days spent on the high seas 

and in the U.S. EEZ in each calendar 

year using data submitted in logbooks 

and other available information. After 

NMFS determines that a limit in a 

calendar year is expected to be reached 

by a specific future date, and at least 

seven calendar days in advance of the 

closure date, NMFS will publish a 

document in the Federal Register 

announcing that the purse seine fishery 

in the area where the limit is expected 

to be reached will be closed starting on 

that specific future date and will remain 

closed until the end of the calendar 

year. 

(4) Once a fishery closure is 

announced pursuant to paragraph (a)(3) 

of this section, fishing vessels of the 

United States equipped with purse seine 

gear may not be used to fish in the 

closed area during the period specified 

in the Federal Register document, 

except that such vessels are not 

prohibited from bunkering during a 

fishery closure. 

(b) Use of fish aggregating devices. (1) 

During the periods and in the areas 

specified in paragraph (b)(2) of this 

section, owners, operators, and crew of 

fishing vessels of the United States 

equipped with purse seine gear shall not 

do any of the activities described below 

in the Convention Area in the area 

between 20° N latitude and 20° S 

latitude: 

(i) Set a purse seine around a FAD or 

within one nautical mile of a FAD. 

(ii) 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. 

(iii) Deploy a FAD into the water. 

(iv) 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: 

(A) 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 

(B) A FAD may be removed from the 

water and if removed may be repaired, 

cleaned, maintained, or otherwise 

serviced, provided that it is not returned 

to the water. 

(v) 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: 

(A) Submerge lights under water; 

(B) Suspend or hang lights over the 

side of the purse seine vessel, skiff, 

watercraft or equipment, or; 

(C) 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. 

(2) The requirements of paragraph 

(b)(1) of this section shall apply: 

(i) From July 1 through September 30, 

in each calendar year; 

(ii) In any area of high seas, from 

November 1 through December 31, in 

each calendar year. 

(3)(i) Activating FADs for purse seine 

vessels. A vessel owner, operator, or 

crew of a fishing vessel of the United 

States equipped with purse seine gear 

shall turn on the tracking equipment of 

an active FAD while the FAD is onboard 

the vessel and before it is deployed in 

the water. 

(ii) Restrictions on Active FADs for 

purse seine vessels. U.S. vessel owners 

and operators of a fishing vessel of the 

United States equipped with purse seine 

gear shall not have more than 350 

drifting active FADs per vessel in the 

Convention Area at any one time. 

* * * * * 

■ 7. In § 300.224, revise paragraph (a)(1) 

and remove and reserve paragraph 

(a)(2). 

The revision reads as follows: 

§ 300.224 Longline fishing restrictions. 

(a) * * * 

(1) 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. 

* * * * * 

■ 8. Revise § 300.225 to read as follows: 

§ 300.225 Eastern High Seas Special 

Management Area. 

The owner and operator of a fishing 

vessel of the United States used for 

commercial fishing for HMS is 

prohibited from engaging in 

transshipment in the Eastern High Seas 

Special Management Area. 

[FR Doc. 2018–15341 Filed 7–17–18; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

[Docket No. 150413357–5999–02] 

RIN 0648–XG325 

Atlantic Highly Migratory Species; 

Commercial Aggregated Large Coastal 

Shark and Hammerhead Shark 

Management Group Retention Limit 

Adjustment 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; inseason 

retention limit adjustment. 

SUMMARY: NMFS is adjusting the 

commercial aggregated large coastal 

shark (LCS) and hammerhead shark 

management group retention limit for 

directed shark limited access permit 

holders in the Atlantic region from 3 

LCS other than sandbar sharks per 

vessel per trip to 36 LCS other than 

sandbar sharks per vessel per trip. This 

action is based on consideration of the 

regulatory determination criteria 

regarding inseason adjustments. The 

retention limit will remain at 36 LCS 

other than sandbar sharks per vessel per 

trip in the Atlantic region through the 

rest of the 2018 fishing season or until 

NMFS announces via a notification in 

the Federal Register another adjustment 

to the retention limit or a fishery 

closure. This retention limit adjustment 

affects anyone with a directed shark 

limited access permit fishing for LCS in 

the Atlantic region. 

DATES: This retention limit adjustment 

is effective on July 18, 2018, through 

December 31, 2018, or until NMFS 

announces via a notification in the 

Federal Register another adjustment to 

the retention limit or a fishery closure, 

if warranted. 

FOR FURTHER INFORMATION CONTACT: 

Lauren Latchford, Guy ́ DuBeck, or Karyl 


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