[Federal Register Volume 79, Number 220 (Friday, November 14, 2014)]
[Rules and Regulations]
[Pages 68133-68135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26988]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 300 and 660

[Docket No. 141103918-4918-01]
RIN 0648-BE58


International Fisheries; Pacific Tuna Fisheries; 2014 Commercial 
Fishing for Pacific Bluefin Tuna in the Eastern Pacific Ocean; 
Commercial Retention Limit

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

ACTION: Temporary rule for an emergency action.

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SUMMARY: NMFS is reopening the U.S. commercial fishery for Pacific 
bluefin tuna (PBF) in the eastern Pacific Ocean (EPO) until the 500 
metric ton (mt) catch limit is reached. If the 500-metric ton limit, 
which was established under the Tuna Conventions Act (TCA) and 
regulations implementing Resolution C-13-02 of the Inter-American 
Tropical Tuna Commission (IATTC) in the EPO, is not met, the fishery 
will close on December 31, 2014. This reopening of the fishery vacates 
the closure made by NMFS on September 5, 2014. Following the closure, 
NMFS received updated information indicating that only 404 mt of the 
500 mt catch limit was caught. Thus, the closure was imposed 
prematurely. This rule also imposes a 1 mt trip limit on retention of 
PBF in the EPO by commercial vessels as an emergency action under the 
Magnuson-Stevens Fishery Conservation and Management Act (MSA).

DATES: Effective November 13, 2014, through December 31, 2014.

FOR FURTHER INFORMATION CONTACT: Mark Helvey, NMFS West Coast Region, 
562-980-4040, Mark,<a href="/cdn-cgi/l/email-protection#0a426f667c6f734a64656b6b246d657c"><span class="__cf_email__" data-cfemail="cd85a8a1bba8b48da3a2acace3aaa2bb">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: NMFS takes this action in accordance with 
the TCA, 16 U.S.C. 951 et seq., and under section 305(c) of the MSA, 16 
U.S.C. 1855(c). NMFS published a final rule in the Federal Register (79 
FR 28448, May 16, 2014) implementing Resolution C-13-02, (``Measures 
for the Conservation and Management of Bluefin Tuna in the Eastern 
Pacific Ocean'') adopted by the IATTC at its 85th Meeting in June 2013. 
Resolution C-13-02 provided for an IATTC-wide (applicable to all 
members and cooperating non-members of the IATTC fishing in the EPO) 
commercial catch limit of 5,000 mt and up to 500 mt set aside for IATTC 
members having a historical catch record of PBF in the EPO. Because the 
United States has a historical record of PBF catch in the EPO, the U.S. 
commercial fishing fleet qualifies for the 500 mt catch limit of PBF in 
the Convention Area for 2014, as explained in the final rule. The final 
rule further explains that when the IATTC-wide 5,000 mt catch limit is 
reached, the U.S. commercial fleet may continue to target, retain, 
transship, or land PBF until the 500 mt limit is reached.
    In late August 2014, NMFS received information that the PBF catch 
by U.S. purse seine vessels was 454 mt. As a result, on September 5, 
2014, NMFS closed the fishery, believing that the United States was 
close to reaching the 500 mt limit (79 FR 53631, September 10, 2014). 
Following the closure, NMFS received updated landings data indicating 
that the total U.S. commercial catch in 2014 was 403.5 mt, not 454 mt. 
Since then, NMFS informed the Pacific Fishery Management Council 
(Council) of the early closure at their meeting in Spokane, Washington 
on September 13, 2014, and the Council recommended that NMFS reopen the 
commercial fishery and establish a 1 mt trip limit until the 500 mt 
catch limit is reached. NMFS finds the Council's request consistent 
with several of the MSA national standards for fishery conservation and 
management within the context of the Council's Fishery Management Plan 
for U.S. West Coast Fisheries for Highly Migratory Species. While PBF 
are in an overfished and overfishing condition, the stock is being 
managed under IATTC Resolution C-13-02 in efforts to curtail catches in 
the EPO. The Council's recommendation ensures that the remainder of the 
500 mt will be available to the U.S. commercial fisheries and harvested 
in measured increments of 1 mt or smaller, which substantially reduces 
the risk of exceeding the limit while allowing for resource 
utilization. Its recommendation adheres to National Standard 1 of the 
MSA--``conservation and management measures shall prevent overfishing 
while achieving, on a continuing basis, the optimum yield from each 
fishery for the United States fishing industry.'' NMFS also recognizes 
that the number of U.S. vessels able to catch PBF is small because 
interacting with PBF is not a common event and that their catch can be 
readily monitored because some vessels capable of efficiently catching 
PBF in 1 mt increments or less (e.g., drift gillnet) will already have 
federally trained observers onboard to monitor the catch. In addition, 
NMFS plans to work with fish buyers and State of

[[Page 68134]]

California authorities to monitor PBF landings. The Council's 
recommendation also supports National Standard 5--``conservation and 
management measures shall, where practicable, consider efficiency in 
the utilization of fishery resources; except that no such measure shall 
have economic allocation as its sole purpose.'' The 1 mt trip limit 
allows for the final 96 mt of the 500 mt overall limit to be harvested 
in a calculated and efficient way rather than taking the risk that the 
500 mt limit will be exceeded within one or two trips (i.e., by purse 
seine gear).
    The trip limit also comports with MSA National Standard 8--
``conservation and management measures shall, consistent with the 
conservation requirements of this Act (including the prevention of 
overfishing and rebuilding of overfished stocks), take into account the 
importance of fishery resources to fishing communities by utilizing 
economic and social data that meet the requirement of paragraph (2), in 
order to (a) provide for the sustained participation of such 
communities, and (b) to the extent practicable, minimize adverse 
economic impacts on such communities.'' Allowance for the retention of 
PBF in 1 mt increments can add to U.S. harvesters' portfolios of 
marketable species and minimizes lost economic opportunity until the 
500 mt limit is reached, thereby benefiting West Coast fishing 
communities.
    NMFS recognizes that there are situations where commercial 
fishermen may inadvertently catch PBF during their fishing operations 
while targeting other species. The 1 mt trip allowance avoids the 
requirement to discard PBF catches until the 500 mt catch limit is 
reached and serves to minimize bycatch. The Council's request comports 
with National Standard 9--``conservation and management measures shall, 
to the extent practicable, (a) minimize bycatch and (b) to the extent 
bycatch cannot be avoided, minimize the mortality of such bycatch.''
    Lastly, the 1 mt limit ensures that National Standard 10--
``conservation and management measures shall, to the extent 
practicable, promote the safety of human life at sea''--is met. 
Correcting the error by reopening this fishery without a trip limit 
could create a derby-style fishery; that is, a fishery of brief 
duration during which harvesters race, regardless of weather or ocean 
conditions, to catch as much as they can before the fishery closes 
again. Specifically, fishermen able to catch PBF in large quantities 
might risk the dangers of unsafe sea conditions just to ensure a last 
catch opportunity.
    This emergency trip limit will be effective only through the end of 
2014, which is less than the maximum 180 days allowed for emergency 
rules issued under section 305(c) of the MSA.
    NMFS acknowledges the petition received from the Center for 
Biological Diversity (CBD) requesting NMFS to undertake several actions 
pertaining to PBF, including prohibiting fishing or, as an alternative, 
establishing annual catch limits and a permanent minimum size 
requirement to protect age classes 1 to 2 from fishing mortality. This 
action to reopen the fishery does not pertain to the petition. Rather, 
the action corrects an error and sets trip limits under an emergency 
action to ensure that the 2014 catch limit adopted by the IATTC is not 
exceeded. The comment period for the petition ended on September 22, 
2014. Based on NMFS' current review of those comments, as well as the 
outcome of the resumed 87th Meeting of the IATTC in late-October, and 
the Council's scheduled action in November to establish a more 
restrictive bag limit for the recreational PBF fishery, NMFS will 
determine the need to proceed with regulations requested by the CBD to 
prohibit PBF fishing or establish size limits.
    NMFS' policy guidelines for the use of emergency rules (62 FR 
44421, August 21, 1997) specify the following three criteria that 
define an emergency situation and justification for final rulemaking: 
(1) The emergency results from recent, unforeseen events or recently 
discovered circumstances; (2) the emergency presents serious 
conservation or management problems in the fishery; and (3) the 
emergency can be addressed through emergency regulations for which the 
immediate benefits outweigh the value of advance notice, public 
comment, and deliberative consideration of the impacts on participants 
to the same extent as would be expected under the normal rulemaking 
process. NMFS' policy guidelines further provide that an emergency 
action is justified for situations, in which it would prevent 
significant direct economic loss, or to preserve a significant economic 
opportunity that otherwise might be foregone.
    NMFS has determined that setting a 1 mt trip limit on PBF catches 
meets all three criteria. The temporary rule results from recent, 
unforeseen events or recently discovered circumstances pertaining to an 
update on preliminary catch data. The best available information at the 
time of the closure indicated that the catch limit was less than 50 mt 
from being reached. The use of purse seine gear is an efficient method 
for capturing schooling fish and the purse seine vessels that had been 
harvesting PBF had the capacity to catch more than 50 mt in a single 
trip. Consequently, NMFS responded by closing the fishery on September 
5, 2014, only to later learn that the actual catch was 403.5 mt, not 
454 mt. The Council's recommendation for a 1 mt trip limit allows for 
reopening the fishery while establishing a precautionary management 
measure designed to prevent exceeding the 500 mt limit. For the reasons 
explained below in the ``Classification'' section, the benefits of 
emergency action outweigh the value of the normally applicable notice 
and comment procedures.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA) has determined 
that this emergency action to promulgate temporary regulations for 
setting a 1 mt trip limit under the authority of section 305(c) of the 
MSA is necessary to prevent bycatch, in the form of regulatory 
discards, of a species in an overfished and overfishing condition. The 
Council's request to reopen the fishery with a per trip retention limit 
will provide limited economic opportunities to harvesters and fishing 
communities, while maintaining catch levels within limits to meet U.S. 
obligations as a member of the IATTC. This request is consistent with 
the TCA, MSA, and other applicable laws.
    Pursuant to 5 U.S.C. 553(b)(B), the AA finds good cause to waive 
prior notice and opportunity for advanced public comment. The benefits 
of implementing this action immediately outweigh the value of advance 
notice and public comment. Reopening the fishery corrects an error. 
Failure to correct that error would cause confusion and undermine the 
purpose of the underlying regulation. Imposition of the 1 mt retention 
limit is an emergency action and prior notice and opportunity for 
advanced public comment would be contrary to the public interest. 
Delaying action intended to allow for the retention of PBF in 
increments of up to 1 mt would increase the likelihood of waste and 
economic loss. There is no other action that NMFS can take through the 
normal rulemaking process that would enable the agency to allow for the 
commercial retention in fisheries interacting with PBF in time before 
the end of the year when the availability of the 500 mt catch limit 
expires. The urgency to issue a final rule that

[[Page 68135]]

provides an opportunity for harvesters to retain up to 1 mt in the 
event they catch PBF reduces the likelihood that the species would be 
targeted while allowing for economic opportunities to persist.
    Correcting the premature closure by reopening the fishery relieves 
a restriction, and, therefore, is not subject to the 30-day delay in 
effectiveness under 5 U.S.C. 553(d)(3). For the same reasons provided 
above, pursuant to 5 U.S.C. 553(d)(3), the AA finds good cause to waive 
the full 30-day delay in effectiveness for imposition of the 1 mt 
retention limit. It would be contrary to the public interest if the 
retention limit does not become effective immediately and concurrently 
with the reopening of the fishery because an incentive would remain for 
harvesters to target PBF with gear capable of exceeding the catch limit 
in one or two trips, thus undermining the purpose of the regulations.
    Because notice and opportunity for comment are not required 
pursuant to 5 U.S.C. 553 or any other law, the analytical requirements 
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are 
inapplicable. Therefore, a regulatory flexibility analysis is not 
required and has not been prepared.
    This rule has been determined to be not significant for purposes of 
Executive Order 12866. A Regulatory Impact Review was completed and is 
available upon request from the NMFS, West Coast Region (see 
ADDRESSES).

    Authority: 16 U.S.C. 951 et seq. and 16 U.S.C. 1801 et seq.

    Dated: November 7, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2014-26988 Filed 11-13-14; 8:45 am]
BILLING CODE 3510-22-P


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