International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Fishing Restrictions and Observer Requirements in Purse Seine Fisheries for 2009-2011 and Turtle Mitigation Requirements in Purse Seine Fisheries, 38544-38558 [E9-18583]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 148 (Tuesday, August 4, 2009)]
[Rules and Regulations]
[Pages 38544-38558]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-18583]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 090130104-91027-02]
RIN 0648-AX60


International Fisheries; Western and Central Pacific Fisheries 
for Highly Migratory Species; Fishing Restrictions and Observer 
Requirements in Purse Seine Fisheries for 2009-2011 and Turtle 
Mitigation Requirements in Purse Seine Fisheries

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

ACTION: Final rule.

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SUMMARY: NMFS issues regulations under authority of the Western and 
Central Pacific Fisheries Convention Implementation Act (WCPFC 
Implementation Act) to implement certain decisions of the Commission 
for the Conservation and Management of Highly Migratory Fish Stocks in 
the Western and Central Pacific Ocean (WCPFC). Those decisions require 
that the members of the WCPFC, including the United States, take 
certain measures with respect to their purse seine fisheries in the 
area of competence of the WCPFC, which includes most of the western and 
central Pacific Ocean (WCPO). The regulations include limits on the 
number of days that may be fished, periods during which fishing may not 
be done on schools in association with fish aggregating devices (FADs), 
areas of high seas closed to fishing, requirements to retain tuna on 
board up to the first point of landing or transshipment, requirements 
to carry observers, and requirements to handle sea turtles in a 
specified manner. This action is necessary for the United States to 
satisfy its international obligations under the Convention on the 
Conservation and Management of Highly Migratory Fish Stocks in the 
Western and Central Pacific Ocean (Convention), to which it is a 
Contracting Party.

DATES: The rule is effective August 3, 2009, except for the amendments 
to Sec. Sec.  300.222(aa) and 300.223(f), which are effective October 
5, 2009.

ADDRESSES: Copies of supporting documents that were prepared for this 
final rule, including the regulatory impact review (RIR) and 
environmental assessment (EA), as well as the proposed rule, are 
available via the Federal e-Rulemaking portal, at https://www.regulations.gov. Those documents, and the small entity compliance 
guide prepared for this final rule, are also available from the 
Regional Administrator, NMFS, Pacific Islands Regional Office, 1601 
Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-4700. The initial 
regulatory flexibility analysis (IRFA) and final regulatory flexibility 
analysis (FRFA) prepared for this rule are included in the proposed 
rule and this final rule, respectively.

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

SUPPLEMENTARY INFORMATION:

Electronic Access

    This final rule is also accessible at https://www.gpoaccess.gov/fr.

Background

    On June 1, 2009, NMFS published a proposed rule in the Federal 
Register (74 FR 26160) that would revise regulations at 50 CFR part 
300, subpart O, in order to implement certain decisions of the WCPFC. 
The proposed rule was open to public comment through June 22, 2009.
    This final rule is implemented under authority of the WCPFC 
Implementation Act (16 U.S.C. 6901 et seq.), which authorizes the 
Secretary of Commerce, in consultation with the Secretary of State and 
the Secretary of the Department in which the United States Coast Guard 
is operating (currently the Department of Homeland Security), to 
promulgate such regulations as may be necessary to carry out the 
obligations of the United States under the Convention, including the 
decisions of the WCPFC. The authority to promulgate regulations has 
been delegated to NMFS.
    The objective of this final rule is to implement, with respect to 
U.S. purse seine vessels, two Conservation and Management Measures 
(CMM) adopted by the WCPFC in December 2008, at its Fifth Regular 
Annual Session. The first is CMM 2008-01, ``Conservation and Management 
Measure for Bigeye and Yellowfin Tuna in the Western and Central 
Pacific Ocean'' The second is CMM 2008-03, ``Conservation and 
Management of Sea Turtles.''
    The proposed rule includes further background information, 
including information on the Convention and the WCPFC, the 
international obligations of the United States under the Convention, 
the provisions of CMM 2008-01 and CMM 2008-03 as they relate to purse 
seine vessels, and the basis for the proposed regulations.

New Requirements

    This final rule establishes the following requirements:

(1) Fishing Effort Limits

    Limits are established for 2009 through 2011 on the number of 
fishing days that may be spent by the U.S. purse seine fleet on the 
high seas and in areas under U.S. jurisdiction (including the U.S. 
exclusive economic zone, or EEZ) within the Convention Area. First, 
there is a limit of 7,764 fishing days for the entire three-year 2009-
2011 period. Second, there is a limit of 6,470 fishing days for each of 
the two-year periods 2009-2010 and 2010-2011. Third, there is a limit 
of 3,882 fishing days for each of the one-year periods 2009, 2010, and 
2011. Once NMFS determines during any of these time periods that, based 
on information collected in vessel logbooks and other sources, the 
limit is expected to be reached by a specific future date, NMFS will 
issue a notice in the Federal Register announcing the closure of the 
purse seine fishery in the Convention Area on the high seas and in 
areas of U.S. jurisdiction, starting on that specific future date until 
the end of the applicable time period. Upon closure of the fishery, it 
will be prohibited to use a U.S. purse seine vessel to fish in the 
Convention Area on the high seas or in areas under U.S. jurisdiction, 
effective until the end of the applicable time period. NMFS will 
publish the notice at least seven calendar days before the effective 
date of the closure to provide fishermen advance notice of the closure.

(2) FAD Prohibition Periods

    During specified periods in each of the years 2009, 2010, and 2011 
it will be prohibited to set purse seines around FADs, deploy FADs, or 
service FADs or their associated electronic equipment in the Convention 
Area. It will be prohibited during these periods to set a purse seine 
within one nautical mile of a FAD or to set a purse seine in a manner 
intended to capture fish that have aggregated in association with a 
FAD, such as by setting the purse seine in an area from which a FAD has 
been moved or removed within the previous eight hours or setting the 
purse seine in

[[Page 38545]]

an area into which fish were drawn by a vessel from the vicinity of a 
FAD. FADs are defined to include both artificial and natural floating 
objects that are capable of aggregating fish. In 2009, the FAD 
prohibition period will be August 1 through September 30. In each of 
2010 and 2011, it will be July 1 through September 30.

(3) High Seas Area Closures

    Two areas will be closed to fishing by U.S. purse seine vessels 
from January 1, 2010, through December 31, 2011. The areas are the two 
areas of high seas within the Convention Area that are depicted on the 
map in Figure 1. In CMM 2008-01, the WCPFC has reserved the option of 
reversing its adoption of the closed areas at its regular annual 
session in December 2009. If such a decision occurs, NMFS will take 
appropriate action to rescind, as appropriate, the closed areas that 
are established in this final rule.
    Figure 1. High seas closed areas. Areas of high seas are indicated 
in white; areas of claimed national jurisdiction, including territorial 
seas, archipelagic waters, and exclusive economic zones, are indicated 
in dark shading. Areas that will be closed to purse seine fishing from 
January 1, 2010, through December 31, 2011, are all high seas areas (in 
white) within the two rectangles bounded by the bold black lines. The 
coordinates of the two rectangles are set forth in the regulation. This 
map displays indicative maritime boundaries only.
[GRAPHIC] [TIFF OMITTED] TR04AU09.119

(4) Catch Retention

    It will be prohibited to discard any bigeye tuna (Thunnus obesus), 
yellowfin tuna (Thunnus albacares), or skipjack tuna (Katsuwonus 
pelamis) from a U.S. purse seine vessel at sea within the Convention 
Area. Exceptions are provided for fish that are unfit for human 
consumption for reasons other than their size, for the last set of the 
trip if there is insufficient well space to accommodate the entire 
catch, and for cases of serious malfunction of equipment that 
necessitate that fish be discarded. This requirement will become 
effective no earlier than January 1, 2010, and only upon NMFS' 
determination that an adequate number of WCPFC-approved observers is 
available for the purse seine vessels of all WCPFC members as necessary 
to ensure compliance by such vessels with the catch retention 
requirement. Once it makes that determination, NMFS will announce the 
effective date of the requirement in a notice published in the Federal 
Register. The requirement will then remain in effect through December 
31, 2011.

(5) Observer Coverage

    U.S. purse seine vessels must carry observers deployed as part of 
the WCPFC Regional Observer Programme (WCPFC ROP) or deployed by NMFS 
on all trips in the Convention Area from August 1 through September 30, 
2009 (the FAD prohibition period). It will also be required, from 
January 1, 2010, through December 31, 2011, that U.S. purse seine 
vessels carry WCPFC-approved observers on all trips in the Convention 
Area. These observer requirements will not apply to trips that take 
place exclusively within areas under the jurisdiction of the United 
States, including the U.S. EEZ and U.S. territorial sea, or under the 
jurisdiction of any other single nation. They also will not apply in 
cases where NMFS has

[[Page 38546]]

determined that an observer is not available.

(6) Sea Turtle Interaction Mitigation

    U.S. purse seine vessels operating in the Convention Area must 
carry specific equipment and specific measures must be used on such 
vessels to disentangle, handle, and release sea turtles that are 
encountered in fishing gear, including purse seines and FADs. The 
required equipment is a dip net or turtle hoist that meets specified 
minimum design standards. The required measures are: immediately 
releasing sea turtles that are observed enclosed in purse seines; 
disentangling sea turtles that are observed entangled in purse seines 
or FADs; stopping net roll until a sea turtle is disentangled from a 
purse seine; resuscitating sea turtles that appear dead or comatose; 
and releasing sea turtles back to the ocean in a specified manner. 
Unlike the other elements of the final rule, these requirements are 
effective indefinitely.

Responses to Comments

    Comment 1: It is vital to the survival of the U.S. purse seine 
fleet that the United States negotiate measures in regional fisheries 
management organizations (RFMO) that impose a comparable burden on all 
participants in the fishery, and that U.S. fishermen do not bear an 
unfair amount of the conservation burden. Furthermore, it is critical 
to the survival of the U.S. purse seine fleet that domestic regulations 
implementing RFMO measures not be significantly more burdensome on the 
U.S. fleet than those imposed on the fleet's foreign competitors. Also, 
it is the responsibility of the U.S. government to ensure that other 
governments implement substantially similar rules and regulations, and 
the U.S. government should promptly give notice to the appropriate RFMO 
of any shortcomings in the regulations and enforcement by other member 
countries of the RFMO.
    Response: This comment does not pertain to the proposed rule 
itself. NMFS, as part of U.S. delegations to the WCPFC and other RFMOs, 
shares the view that all participants in affected fisheries should 
share comparable burdens when seeking to achieve conservation and 
management objectives, and NMFS applies this principle in its role as 
part of U.S. delegations to the WCPFC and other RFMOs. As part of such 
U.S. delegations, NMFS routinely endeavors to determine whether all 
RFMO members are satisfying their obligations to implement the 
decisions of the RFMOs, and to alert the RFMOs, as appropriate, about 
any shortcomings in such implementation.
    Comment 2: With respect to the proposed limits on fishing days, 
reports advising of the number of fishing days used to date should be 
issued on a monthly basis in order to assist vessels in planning their 
operations.
    Response: NMFS recognizes the value of providing such information 
to affected fishing operations and will endeavor to provide it to the 
extent possible. NMFS intends to make periodic estimates and/or 
projections of the number of fishing days used and to make them 
publicly available in as timely a manner as possible. Exactly what 
information will be provided, how often it will be updated, when it 
will be provided, and how it will be disseminated to the public cannot 
be determined at this time.
    Comment 3: The regulations should be clarified to say that upon the 
proposed August 1, 2009, start date of the FAD prohibition period, a 
purse seine vessel would be permitted to transit to port without an 
observer on board, provided that no fishing takes place during such 
transit.
    Response: The proposed rule is consistent with the commenter's 
view. Under the proposed rule, it would be prohibited to use a U.S. 
vessel equipped with purse seine gear to ``fish'' in the Convention 
Area without an observer on board (with certain exemptions, not 
relevant to this comment). Under the proposed rule, ``fishing'' is 
defined to include searching for, catching, taking, or harvesting fish, 
as well as a number of other specific activities, but it does not 
include merely transiting or being at sea.
    Comment 4: The activities related to fishing in association with 
FADs that would be prohibited during the FAD prohibition periods should 
be qualified to include the word ``intentionally''; for example, it 
should not be prohibited to set a purse seine on a floating object if 
it is not done intentionally, such as if the object was submerged and 
not seen when the set is made.
    Response: NMFS does not agree. In order to ensure that fishing on 
schools in association with FADs does not occur, it is necessary, for 
enforcement and compliance purposes, to prohibit all fishing in 
association with FADs. Even with the presence of an observer on board 
the vessel, requiring a determination of the intent behind the fishing 
vessel's activities would undermine the rule's effectiveness and 
unnecessarily complicate enforcement. However, the rule is aimed at 
ensuring that vessels do not fish on schools associated with FADs; 
therefore, factors beyond the control of the vessel will, as always, be 
taken into consideration in the enforcement of this regulation.
    Comment 5: During a FAD prohibition period, the following 
activities should not be prohibited: (1) in situations in which there 
are no FADs in the area of the fishing vessel, capturing a school of 
tuna that has aggregated under the fishing vessel; (2) capturing fish 
that are in the vicinity of a floating object but not associated with 
the object; and (3) removing a FAD from the water and securing it on 
the deck, provided that no servicing of the FAD takes place.
    Response: Regarding activity (1), the commenter's view is 
consistent with the intent of the proposed rule; however, NMFS will 
revise the final rule to clarify that the meaning of a FAD does not 
include the purse seine vessel itself. Having said that, it is 
important to note that under the proposed rule it would be prohibited 
during a FAD prohibition period to set a purse seine in an area into 
which fish were drawn by a vessel from the vicinity of a FAD. Regarding 
activity (2), NMFS does not agree. Although fish may indeed be found in 
the vicinity of a FAD but not necessarily associated with it, NMFS 
finds that in order to ensure that fishing on schools in association 
with FADs does not occur, it is necessary to also prohibit fishing on 
schools that are merely in the vicinity of FADs. Under the proposed 
rule, this would be accomplished by prohibiting setting a purse seine 
within one nautical mile of a FAD. Regarding activity (3), the 
commenter's view is consistent with the intent of the proposed rule; 
however, NMFS will revise the final rule to clarify that during a FAD 
prohibition period it will not be prohibited to remove a FAD from the 
water, provided that it is not returned to the water.
    Comment 6: Regarding the areas of high seas that would be closed to 
purse seine fishing in 2010 and 2011, consideration should be given to 
using MarZone, which is a geodetic software program specifically 
designed and developed to implement all provisions relating to the 
determination of maritime boundaries as set out in relevant articles of 
the United Nations Law of the Sea. The enforcement agencies of WCPFC 
member countries, including those of the United States, and vessel 
operators could best meet their responsibilities with the use of an 
accurate system, and the same system for mapping coordinates.
    Response: NMFS recognizes that WCPFC members and their enforcement 
agencies do not all use the same tools to determine where a given 
geographical coordinate lies on the earth's surface,

[[Page 38547]]

and indeed, do not all necessarily agree on the same coordinates to 
describe a given boundary. NMFS agrees that use by all WCPFC members of 
common agreed-upon geodetic tools would enhance the collective ability 
of WCPFC members to satisfy their enforcement responsibilities under 
the Convention and would reduce the potential for misunderstandings and 
conflicts among WCPFC members. However, this issue is outside the scope 
of this rule; NMFS does not recognize any way in which the proposed 
rule could be revised to address the comment.
    Comment 7: The proposed fishing effort limits are inconsistent with 
the provisions of CMM 2008-01, paragraph 10 of which establishes 2004 
levels or the average of 2001-2004 as the baseline for the limits for 
the high seas. The proposed rule misconstrues the meaning and intent of 
CMM 2008-01 by asserting that the potential effort of all 40 U.S. purse 
seine vessel licenses authorized under the South Pacific Tuna Treaty 
(SPTT) should be included in the baseline levels of fishing effort for 
both the high seas and the U.S. EEZ, whereas paragraph 7 of CMM 2008-
01, with its proviso that ``the registration of bilateral agreements or 
arrangements does not provide a basis for establishing effort levels on 
the high seas,'' explicitly prohibits such an expansion. Under NMFS' 
proposal, the baseline effort level (and therefore the 2009-2011 effort 
limit) for the high seas would be expanded from 1,066 fishing days to 
2,030 fishing days, and the EEZ baseline effort and 2009-2011 effort 
limit would be expanded from 279 days to 558 fishing days. NMFS should 
not attempt to circumvent the meaning or intent of CMM 2008-01, the 
unmistakable intent of which is to address depletion of bigeye tuna 
through, among other things, the imposition of purse seine effort 
limits reflective of those which occurred during the baseline period. 
If NMFS successfully applies the proposed methodology to the U.S. purse 
seine fleet, it must apply the same logic to the catch limits required 
in longline fisheries under CMM 2008-01, a proposed rule for which has 
not yet been published but alternatives for which are included in the 
EA for this purse seine-related proposed rule.
    Response: NMFS disagrees with the comment that the proposed fishing 
effort limits are inconsistent with the provisions of CMM 2008-01. 
Paragraph 7 of CMM 2008-01 states that the determination of levels of 
fishing effort established in the CMM shall include, as applicable, 
fishing rights organized under existing regional or bilateral fisheries 
partnership agreements or arrangements, subject to the following 
limitations: such agreements or arrangements have been registered with 
the WCPFC by December 2006 in accordance with CMM 2005-01 (a precursor 
of CMM 2008-01); the number of licenses authorized under such 
arrangements does not increase; and finally, that registered 
``bilateral agreements or arrangements'' do not provide a basis for 
establishing effort levels on the high seas. Accordingly, CMM 2008-01, 
paragraph 7, clearly provides for effort determinations to be based on 
existing rights (rather than historical fishing effort) under regional 
agreements such as the SPTT, provided that they are not used as a means 
to circumvent the objectives of CMM 2008-01 for bigeye tuna by 
increasing the number of licenses authorized under such agreements. 
Under the SPTT, the number of U.S. purse seine vessels that may be 
authorized to fish in the SPTT Area, including its areas of high seas, 
is strictly limited to 45, five of which are reserved for vessels 
engaged in joint ventures with Pacific Island Parties to the SPTT. 
These fishing rights of the United States under the SPTT provide the 
basis under CMM 2008-01 for determining effort limits. That is, the 
determination of the effort limits is based on the product of the 
number of licenses available under the SPTT and the average numbers of 
fishing days spent per vessel on the high seas and in the U.S. EEZ in 
2004. Finally, although CMM 2008-01 expressly prohibits the use of 
``bilateral agreements or arrangements'' to establish effort levels on 
the high seas, such restriction does not apply to the SPTT, which is a 
regional fisheries agreement among seventeen parties. Clearly, the 
restriction is intended to prevent parties to such bilateral 
arrangements from circumventing the objectives of CMM 2008-01.
    A portion of this comment refers to alternatives considered for the 
other action analyzed in the EA, ``Bigeye Tuna Catch Limits in Longline 
Fisheries in 2009, 2010, and 2011,'' which is not a part of this 
rulemaking. Although resubmission of this comment during the proposed 
rule comment period for that proposed rule is encouraged, NMFS will 
consider this comment, as appropriate, in the context of the longline-
related rule. Please see response to comment 14 regarding how the two 
actions are treated together in the EA.
    Comment 8: The proposed approach of using multiple-year management 
periods appears consistent with CMM 2008-01 with respect to the fishing 
effort limits in the U.S. EEZ, but not with respect to the limits on 
the high seas. More importantly, nowhere does CMM 2008-01 contemplate 
combining effort limits for the two areas that would permit the 
allowable effort for either area to be exceeded by transferring effort 
from one to the other. NMFS should determine and implement separate 
limits for the two areas. If the two areas are combined, NMFS must 
consider and present the potential impacts on stocks, marine 
ecosystems, other fisheries, and domestic fishing communities of up to 
2,588 purse seine fishing days being annually applied within the U.S. 
EEZ.
    Response: Regarding the use of multiple-year periods for the 
purpose of the fishing effort limits, CMM 2008-01 does not specify that 
the limits must be implemented on an annual basis or on any other 
specific time scale. With respect to limiting fishing effort on the 
high seas, for example, paragraph 10 of CMM 2008-01 states that ``the 
level of purse seine fishing effort in days fished [must] not exceed 
2004 levels or the average of 2001-2004.'' NMFS considered several 
alternative time scales for the fishing effort limits, including annual 
limits (including the calendar-year and the SPTT licensing-year, which 
runs from June 15 through June 14), a three-year limit, and the 
combination of one-year, two-year, and three-year limits, all of which 
NMFS believes are entirely consistent with the relevant requirements of 
CMM 2008-01. Based on the findings in the EA, RIR, and IRFA, NMFS 
concluded that the combination of one-year, two-year, and three-year 
limits would be the best alternative.
    CMM 2008-01 does not prohibit WCPFC members from managing areas of 
high seas and areas under their national jurisdiction as a single area 
for the purpose of the required limits on fishing effort. NMFS believes 
that the proposed approach is not only consistent with CMM 2008-01, but 
also that it is, as concluded in the RIR and IRFA, the approach that 
would satisfy the requirements of CMM 2008-01 while minimizing adverse 
economic impacts (the alternative of establishing separate limits for 
the two areas was also considered in the RIR, IRFA, and EA see response 
to comment 16).
    The objective of CMM 2008-01 is to reduce fishing mortality on 
bigeye tuna in the WCPO. The WCPFC has consistently treated bigeye tuna 
in the WCPO as a single stock for management purposes, and the 
objectives and approach of CMM 2008-01 continue that tradition. The 
separation in CMM 2008-01 of the high seas-related provisions from the 
national zone-related provisions has nothing to do

[[Page 38548]]

with differing management needs or objectives in the two respective 
areas. Rather, the two areas are treated separately because of the 
management approach adopted in CMM 2008-01. Specifically, CMM 2008-01 
puts the responsibility to limit fishing effort in areas under national 
jurisdiction on coastal States, while the responsibility to limit 
fishing effort in areas of high seas is put on flag States. In the case 
where a WCPFC member is both a coastal State and a flag State with 
respect to purse seine vessels, such as the United States, it makes 
good sense for the WCPFC member to satisfy its dual responsibilities 
using measures that collectively are as effective and practical as 
possible. NMFS has attempted to do just that in considering an 
alternative that would combine the two areas and another alternative 
that would not. Because both alternatives would accomplish the 
objective of reducing fishing mortality on WCPO bigeye tuna by the 
required amount (i.e., by U.S. purse seine vessels operating on the 
high seas and by purse seine vessels in areas under U.S. jurisdiction, 
collectively), and because the alternative of combining the two areas 
is expected to result in lesser adverse economic impacts, NMFS adopted 
the alternative that would combine the two areas, and NMFS does not 
find good reason to revise the proposal.
    With respect to considering potential impacts on stocks, marine 
ecosystems, other fisheries, and domestic fishing communities, NMFS has 
conducted the necessary environmental and economic analyses using the 
best available information and a reasonable range of assumptions. After 
considering historical fishing practices and patterns of the U.S. purse 
seine fleet in the region, NMFS does not agree with the commenter that 
the scenario presented of 2,588 purse seine fishing days being spent in 
the U.S. EEZ in a single year (i.e., essentially 100 percent of 
allowable fishing effort) is a reasonably foreseeable result of this 
action. During the years 1997-2007, the proportion of total fishing 
effort by the U.S. WCPO purse seine fleet that occurred in the U.S. EEZ 
ranged from 3 to 21 percent and averaged 7 percent (see Table 3 in the 
EA).
    Comment 9: Regarding the minimum distance that would be required 
between a purse seine set and a FAD during a FAD prohibition period, 
the proposed one nautical mile is inadequate in terms of effectiveness 
and enforceability. A buffer zone of at least 10 miles is necessary to 
ensure that purse seine vessels do not act as de facto FADs and draw 
fish away from FADs, as well as to allow enforcement of the 
requirement.
    Response: NMFS has not identified any relevant standard or 
precedent adopted either in the United States or in international 
fisheries fora. However, NMFS has considered relevant deliberations in 
tuna RFMOs and regional fisheries bodies, including those within the 
Inter-American Tropical Tuna Commission, within the Pacific Islands 
Forum Fisheries Agency (FFA) on behalf of its members that are Parties 
to the Nauru Agreement (PNA), and within the WCPFC's Third 
Intersessional Working Group Regional Observer Programme. Based in part 
on those deliberations, as well as NMFS' own assessment of what an 
effective distance would be, NMFS believes that a distance of one 
nautical mile is appropriate. NMFS believes that the distance of 10 
miles proposed by the commenter is impractical, in part because of the 
difficulty vessel operators would have in recognizing floating objects 
from such a great distance. NMFS does not find good reason to make any 
change from the proposed rule, but it recognizes that this aspect of 
the rule is largely untested, and NMFS intends to closely monitor its 
effectiveness and enforceability.
    Comment 10: NMFS proposes to delay implementation of CMM 2008-01's 
catch retention requirement until an adequate number of observers is 
available for all (domestic and foreign) purse seine vessels managed 
under the WCPFC. The United States, whose purse seine fleet is already 
subject to 20 percent observer coverage, should take an immediate 
leadership role by implementing this important conservation and 
management measure as required under CMM 2008-01.
    Response: Paragraph 27 of CMM 2008-01 states that the catch 
retention requirement is ``subject to the Commission implementing the 
program in paragraph 28 for 100 percent coverage on purse seine vessels 
by the observers from the Regional Observer Program.'' The proposed 
``delay'' in implementation referred to by the commenter is in fact not 
a proposal to delay implementation, but simply a proposal to implement 
this aspect of paragraph 27 of CMM 2008-01. Specifically, the proposed 
regulations state that the catch retention requirement is contingent on 
a determination by NMFS that ``an adequate number of WCPFC observers 
are available for the purse seine vessels of all Members of the 
Commission as necessary to ensure compliance by such vessels with the 
catch retention requirements established by the Commission.'' NMFS 
continues to find this aspect of the proposed rule to be consistent 
with CMM 2008-01.
    Comment 11: The provisions in the proposed rule that would allow a 
purse seine vessel to be used to fish without an observer on board in 
cases that (1) the fishing trip is restricted entirely to areas under 
U.S. jurisdiction, or (2) NMFS determines an observer is not available, 
are inconsistent with paragraphs 13, 14, 28, and 29 of CMM 2008-01, 
which do not provide exemptions for such cases.
    Response: Regarding the proposed rule's exemption for fishing trips 
that take place entirely in areas under U.S. jurisdiction, NMFS 
believes it is entirely consistent with CMM 2008-01. Paragraph 13 of 
CMM 2008-01 applies only to the high seas. Paragraphs 28 and 29 of CMM 
2008-01 apply only to the following three cases (all within the 
Convention Area, between 20[deg] N. and 20[deg] S. lat.): (1) fishing 
exclusively on the high seas, (2) fishing on the high seas and in 
waters under the jurisdiction of one or more coastal States, and (3) 
fishing in waters under the jurisdiction of two or more coastal States. 
The case of fishing in waters under jurisdiction of a single coastal 
State is not included. This is consistent with the scope of the WCPFC 
ROP as established in Article 28.4 of the Convention, which states that 
WCPFC members shall ensure that their fishing vessels operating in the 
Convention Area are prepared to accept observers from the WCPFC ROP if 
required by the WCPFC, ``except for vessels that operate exclusively 
within waters under the national jurisdiction of the flag State.'' 
Paragraphs 12 and 14 of CMM 20008-01 speak to observer requirements for 
2009 in areas under the jurisdiction of the flag State, but the 
requirement is only to implement measures that are ``compatible'' with 
those required under paragraph 11, which apply only to the WCPFC 
members that are PNA and not directly to the United States. NMFS finds 
the measures in the proposed rule to be compatible with those required 
of the PNA under paragraph 11 and, importantly, finds them consistent 
with the scope of the WCPFC ROP as established in Article 28.4 of the 
Convention.
    Regarding the proposal to waive the observer requirement in cases 
that an observer is not available, NMFS agrees that CMM 2008-01 does 
not explicitly allow WCPFC members to provide exemptions for its 
vessels in such cases, but disagrees that it may not establish a waiver 
provision where, through no fault of the vessel, an observer is not 
available. During the 22 years that U.S.

[[Page 38549]]

purse seine vessels have operated in the WCPO, the fleet has maintained 
a 20-percent observer coverage rate using independent and impartial 
observers from various Pacific Island countries, deployed by the FFA 
Regional Observer Programme, based in Honiara, Solomon Islands. FFA 
observers are authorized to operate in the entire SPTT Area, which 
includes portions of the U.S. EEZ. Paragraphs 13, 14, 28, and 29 of CMM 
2008-01 require that observers from the WCPFC ROP (or, in 2009 only, 
national observer programs) be deployed on purse seine vessels at 
levels of either 20 percent (in 2009, outside the FAD prohibition 
period) or 100 percent (at all other times in the years 2009-2011). The 
FFA Regional Observer Programme has received interim authorization 
under the WCPFC ROP, meaning that its observers are considered WCPFC 
ROP observers. At the 21st SPTT Formal Consultation, in Koror, Palau, 
the United States and the Pacific Island Parties to the SPTT agreed 
that the FFA Regional Observer Programme would continue to provide 
observer coverage for U.S. purse seine vessels as required under the 
SPTT, as well as provide the observers needed to satisfy the 
requirements for the United States of paragraphs 13, 14, 28, and 29 of 
CMM 2008-01. NMFS understands that the FFA is making preparations to 
move from the current 20-percent coverage rate under the SPTT to the 
100-percent coverage rate required of U.S. purse seine vessels that 
fish any time between August 1 and September 30, 2009. NMFS anticipates 
that approximately 35 observers would be needed during that period, and 
that at least that number would be needed throughout 2010 and 2011. 
NMFS recognizes that accomplishing such a rapid increase may present 
considerable logistical and training challenges for the FFA Regional 
Observer Programme, and there is a possibility that the FFA would not 
be able to provide observers in a timely manner in all cases in which 
they are needed. The waiver provision included in the proposed rule is 
intended to address this circumstance, recognizing that fishing vessels 
could be prohibited from sailing due to circumstances outside their 
control and not of their making. The waivers would be granted on a 
trip-by-trip basis, and only upon a determination by the NMFS Pacific 
Islands Regional Administrator that an observer is not available. NMFS 
anticipates that such waivers would be granted rarely.
    Comment 12: It is hoped that if an observer cannot be provided 
within 24 hours of a vessel's scheduled departure date for lack of an 
observer, the vessel would be allowed to go fishing. Also, a fishing 
vessel should be compensated if its departure is delayed more than 24 
hours waiting for an observer to arrive.
    Response: U.S. purse seine vessels licensed under the SPTT are 
currently required to accommodate FFA-deployed observers in accordance 
with the South Pacific Tuna Act of 1988 and its regulations. These 
observers come from a variety of locations in the Pacific region. Both 
the FFA and NMFS do everything they can to ensure that observers are 
placed well before fishing vessels' estimated dates of departure. 
Scheduled vessel departure dates are merely estimated dates and often 
change for a variety of reasons unrelated to observer placement. As 
stated in the response to comment number 11, arrangements have been 
made with the FFA for observers to be deployed from the FFA Regional 
Observer Programme to provide the enhanced observer coverage that would 
be required under the proposed rule. During the 22 years that observers 
have been deployed on U.S. purse seine vessels under the SPTT, there 
have been relatively few instances in which vessels have been 
significantly delayed as a result of FFA observer placement. The 
proposed rule would allow a vessel to depart without an observer only 
if the NMFS Pacific Islands Regional Administrator determines that an 
observer is not available. This provision is intended to be applied in 
exceptional cases. In all circumstances, this provision would be 
applied at the sole discretion of the Regional Administrator. NMFS 
intends to work with the FFA to ensure that the successful record of 
the past 22 years is maintained. NMFS does not see the need to employ a 
time limit based on what are merely estimated dates of departure. Nor 
does NMFS believe that vessel owners or operators should be compensated 
in the event the departure of the vessel is delayed as a result of 
waiting for an observer, which could be caused by any number of factors 
outside the control of both NMFS and the FFA, such as delayed or 
cancelled airline flights to vessels' ports of departure.
    Comment 13: The commenter should be provided with copies of the 
measures implemented by other WCPFC members to implement the WCPFC-
adopted sea turtle mitigation requirements for their purse seine 
fleets.
    Response: This comment does not pertain to the proposed rule 
itself. NMFS, as part of U.S. delegations to the WCPFC, routinely 
endeavors to determine whether all WCPFC members are satisfying their 
obligations to implement the decisions of the WCPFC, such as by 
ascertaining what specific actions they have taken to implement WCPFC-
adopted conservation and management measures. This applies to the 
WCPFC's CMM 2008-03 on sea turtles.
    The following comments were specific to the EA prepared for this 
proposed rule.
    Comment 14: The EA also analyzes another proposed rule, ``Bigeye 
Tuna Catch Limits in Longline Fisheries in 2009, 2010, and 2011.'' 
However, the proposed rule for that action has not yet been published 
and a preferred alternative for that action has not been designated in 
the EA. It is unclear why the EA contains analysis of this other rule.
    Response: As indicated in the ``Note to the Reader'' issued in 
conjunction with the draft version of the EA, the proposed rule, 
``Bigeye Tuna Catch Limits in Longline Fisheries in 2009, 2010, and 
2011,'' is forthcoming. There is no requirement that a proposed rule 
and a draft EA be issued simultaneously. The Council on Environmental 
Quality's (CEQ) regulations for implementing the National Environmental 
Policy Act (NEPA) at 40 CFR Sec.  1508.9 do not require the designation 
of a preferred alternative in an EA nor do the National Oceanic and 
Atmospheric Administration's Environmental Review Procedures for 
Implementing NEPA (NAO 216-6). As stated in Chapter 2 of the EA, for 
each rule, the EA compares the alternatives analyzed in depth to 
provide the decisionmaker and the public a clear basis for choosing 
among the alternatives.
    As stated in Chapter 1 of the EA, ``The CEQ's regulations at 40 CFR 
1508.25(a)(3) state that agencies may analyze similar actions (e.g., 
actions that have common timing or geography) in the same NEPA 
document, although they are not required to do so.'' And further, 
``both rules stem from the same WCPFC decisions and share common 
objectives, as well as common timing and geography. Thus, in order to 
implement the immediately necessary provisions of the recent WCPFC 
decisions in an efficient manner, NMFS has prepared one EA document for 
the two proposed rules.''
    Comment 15: The EA should analyze an alternative that would cap 
purse seine fishing effort at the annual average of 2001-2004, instead 
of using only the 2004 fishing effort level as the baseline. Moreover, 
the EA expands the amount of the purse seine fishing effort limit for 
the high seas and U.S. EEZ by multiplying the 2004 baseline amount by 
40, or the maximum number of

[[Page 38550]]

vessels allowed to be licensed under the SPTT. The EA should include an 
alternative that analyzes the fishing effort limit based on the number 
of vessels that was active in 2004.
    Response: CMM 2008-01 requires that each WCPFC member take measures 
to ensure that the level of purse seine fishing effort is based on 2004 
levels or the average of 2001-2004. The selection of the baseline 
period is left to the discretion of the WCPFC member. NMFS is satisfied 
that using the 2004 baseline period satisfies the requirements of the 
WCPFC decision without imposing undue or disproportionate burdens on 
the U.S. purse seine fishing fleet.
    NMFS disagrees with the comment that NMFS should have included an 
alternative in the EA that would base the fishing effort limit on the 
number of vessels that were active in 2004. CMM 2008-01, paragraph 7, 
provides for WCPFC members, in determining current levels of fishing 
effort, to include fishing rights organized under existing regional 
arrangements such as the SPTT. NMFS properly considered in the EA 
alternatives that used the 40 non-joint venture licenses authorized 
under SPTT as a baseline for determining the fishing effort limits 
under CMM 2008-01. For an expanded discussion, see the response to 
comment 7.
    Comment 16: The EA should include an alternative that sets a 
discrete fishing effort limit for the high seas. The extension of the 
PNA's Vessel Day Scheme approach to the high seas appears to be 
inconsistent with the provisions of the CMM 2008-01 that would be 
implemented in the rule.
    Response: Alternative D in the EA includes discrete fishing effort 
limits for the high seas and the U.S. EEZ.
    Comment 17: The EA should provide detailed analysis of the bigeye 
tuna catch limit alternative to the high seas FAD prohibition period 
set forth in paragraph 15 of CMM 2008-01. The EA rejected detailed 
consideration of this alternative because the United States did not 
meet the WCPFC's requirements for this alternative before the deadline 
of January 31, 2009. However, it appears that U.S. representatives 
declined to act upon this alternative and failed to provide the 
necessary information and commitments to the WCPFC in a timely manner. 
This alternative would provide a real incentive to explore methods to 
minimize bigeye tuna catches and achieve measurable conservation goals, 
whereas the use of fishing effort limits does not provide any such 
incentive or hard limit on bigeye tuna mortality. NMFS and U.S. 
representatives to the WCPFC should seek an extension of the January 
31, 2009 deadline and consider this approach in the 2010-2011 
management of the domestic purse seine fishery.
    Response: The comment is noted. The United States determined that 
it would not adopt the catch limit measures in paragraph 15 of CMM 
2008-01 in lieu of implementing the high seas FAD closure established 
under paragraph 13. Accordingly, the WCPFC's deadline for proceeding 
under a catch limit program lapsed, and as stated in the EA, this 
alternative was not available for detailed consideration. Moreover, the 
bigeye tuna catch limit was set forth in CMM 2008-01 as an alternative 
to the high seas FAD prohibition period for 2009, not as an alternative 
to the fishing effort limit provisions.
    Comment 18: The EA should consider a bigeye tuna catch limit for 
the swordfish sector of the longline fishery, which averages about 17 
bigeye tuna incidentally caught per set [the commenter subsequently 
clarified this to mean 17 bigeye tuna per trip], which are brought to 
shore and sold. Such a catch limit would reduce bycatch, avoid waste, 
and promote optimum yields.
    Response: This comment refers to alternatives considered for the 
other action analyzed in the EA, ``Bigeye Tuna Catch Limits in Longline 
Fisheries in 2009, 2010, and 2011,'' which is not a part of this 
rulemaking. Although resubmission of this comment during the proposed 
rule comment period for that proposed rule is encouraged, NMFS will 
consider this comment, as appropriate, in the context of the longline-
related rule.
    Comment 19: The EA should include an alternative to the bigeye tuna 
catch limit for the longline fishery that would utilize the three-year 
rolling management period that has been proposed for the purse seine 
fishing effort limits.
    Response: This comment refers to alternatives considered for the 
other action analyzed in the EA, ``Bigeye Tuna Catch Limits in Longline 
Fisheries in 2009, 2010, and 2011,'' which is not a part of this 
rulemaking. Although resubmission of this comment during the proposed 
rule comment period for that proposed rule is encouraged, NMFS will 
consider this comment, as appropriate, in the context of the longline-
related rule.
    Comment 20: Table 4 of the EA provides combined yellowfin tuna and 
bigeye tuna catch data for 2007 and 2008, including by landing port, 
and aggregates the information for associated and unassociated fishing. 
Table 5 provides separate information on yellowfin tuna and bigeye tuna 
catches for 2003-2008, including separate information for associated 
and unassociated fishing, but landing port information is not included. 
Detailed and fully disaggregated information should be included, 
discussed, and analyzed so that the differential impacts of the 
alternatives can be fully considered by decisionmakers and the public 
based on the best available information.
    Response: The EA considered four action alternatives for the rule, 
as well as the No-Action or baseline alternative. Each of the action 
alternatives included six separate provisions, but only one of those 
provisions the fishing effort limit provision varied between the 
alternatives. Including information stating how much bigeye tuna and 
yellowfin tuna caught by associated or unassociated means is landed at 
each port would not provide additional information for the comparison 
of alternatives.
    Comment 21: The information in Table 5 conflicts with other 
published reports regarding catches of bigeye tuna by the U.S. purse 
seine fleet, particularly the 2005 U.S. annual report to the WCPFC. 
Data in the EA for bigeye tuna catches in the purse seine fleet are 
incomplete, because they are only provided for the last five years. 
Moreover, the number for the 2008 bigeye tuna catches of the U.S. purse 
seine fleet included in Table 5 is inaccurate.
    Response: NMFS acknowledges the discrepancy between the data in 
Table 5 of the EA and the information provided in the U.S. annual 
reports to the WCPFC. The annual reports contain the United States' 
best available information regarding the U.S. WCPO purse seine 
fishery's catch statistics. The data in Table 5 are from a report 
prepared by the Secretariat of the Pacific Community, as cited in the 
EA, and are based on information from vessel logsheets. As noted in the 
EA, the 2008 data are preliminary. Table 5 was included in the EA to 
provide the most recent information NMFS could obtain regarding the 
amounts of skipjack tuna, yellowfin tuna, and bigeye tuna caught by 
unassociated and associated sets, respectively. In order to account for 
any numerical inaccuracies, these data were aggregated and converted to 
percentages in Section 4.1.2.2 of the EA. This information was then 
used to support the qualitative analysis of the potential environmental 
impacts that could be caused by implementation of the FAD prohibition 
periods. NMFS does not believe that the inclusion of additional data 
beyond the past five years would

[[Page 38551]]

provide information pertinent to the analysis in the EA.
    Comment 22: Table 8 of the EA conflicts with previously published 
information regarding catches by Hawaii-based longline vessels. Table 8 
indicates that 5,779 metric tons (mt) of bigeye tuna were caught in 
2007 while the U.S. report to the WCPFC indicates that 5,400 mt were 
caught. Also, information contained in the U.S. annual reports to the 
WCPFC for fishing during 2000-2008 should be included in a specific 
table format so that the differential impacts of the alternatives can 
be fully considered by decisionmakers and the public based on the best 
available information.
    Response: The comment is noted. The Errata sheet for the Final EA 
contains a corrected version of Table 8. NMFS does not believe that the 
inclusion of the 2000-2008 data in the format suggested in the comment 
would provide information pertinent to the analysis in the EA. 
Moreover, the data for longline bigeye tuna catches in the U.S. annual 
reports to the WCPFC are not limited to the Hawaii fleet, and thus, are 
not comparable to the data in Table 8.
    Comment 23: The EA fails to discuss the fact that the removal of 
swordfish effort limits [a separate regulatory action from this rule 
that would involve implementation of Amendment 18 to the Fishery 
Management Plan for Pelagic Fisheries in the Western Pacific Region] in 
the Hawaii longline fishery would result in increased direction of 
fishing effort toward swordfish and would likely reduce effort directed 
toward bigeye tuna.
    Response: As stated in Chapter 5 of the EA, Cumulative Impacts, 
NMFS indicated that if and when Amendment 18 is implemented, the Hawaii 
longline fleet may have greater incentive to target swordfish. That, in 
turn, could lead to reduced fishing effort directed at bigeye tuna.
    Comment 24: The EA fails to discuss or analyze how and to what 
magnitude the alternatives for purse seine fishing effort limits would 
reduce bigeye tuna catches from the available baseline periods.
    Response: As discussed throughout Chapter 4, Section 4.1 of the EA, 
the fishing effort limits are not expected to appreciably affect the 
fleet's total fishing effort (relative to the no-action scenario). 
Moreover, the baseline for comparing the environmental effects of the 
alternatives in the EA is the No-Action, or baseline alternative, not 
the baseline periods used to derive the fishing effort limits.
    Comment 25: The EA does not contain a comprehensive discussion of 
economic or social impacts. There is no analysis of impacts on markets, 
communities, human nutrition, consumers, etc.
    Response: As stated in Chapter 4 of the EA, the information 
regarding economic impacts in the EA is provided solely to determine 
whether and to what degree economic impacts are interrelated with 
environmental impacts. Moreover, the EA incorporates by reference the 
RIR and IRFA for the rule, which contain an appropriate analysis of 
economic impacts.
    Comment 26: The cumulative impacts section of the EA is inadequate. 
A major discrepancy is the lack of discussion of the well documented 
transfer effects that occur when U.S. seafood production is curtailed 
and domestic consumption of imported seafood increases in response. If 
the longline fishery is closed when the bigeye tuna catch limit for 
that fishery is reached, the demand for bigeye tuna will be met by 
longline caught tuna imported from other countries, which have less 
stringent regulations to mitigate environmental impacts, such as 
interactions with seabirds and sea turtles.
    Response: The RIR for this rule, which is incorporated by reference 
into the EA, examines the expected effects of this rule on consumers, 
including effects on quantities, quality, and prices of products 
available to U.S. consumers. Consumers in the United States of U.S. 
purse seine fishery-produced tuna are part of a large global market of 
tuna sourced from the fleets of many nations and produced from tuna 
stocks in all the world's oceans. Thus, production by the U.S. purse 
seine fleet in the WCPO has limited influence on the price, quantity, 
quality, or source of tuna products consumed in the United States. 
Moreover, this proposed action is expected to have relatively minor 
effects on production by the U.S. fleet. Therefore, NMFS believes the 
transfer effects mentioned in the comment are unlikely to occur.
    A portion of this comment refers to the other action analyzed in 
the EA, ``Bigeye Tuna Catch Limits in Longline Fisheries in 2009, 2010, 
and 2011.'' As indicated in the ``Note to the Reader'' issued in 
conjunction with the draft version of the EA, the proposed rule for 
that action had not been issued at the time the EA was made available, 
and the RIR for the longline-related rule consequently had not yet been 
made publicly available. For that reason, this comment will be 
addressed in the context of the longline-related rule and the RIR for 
that action.
    Comment 27: The Environmental Justice section of the EA does not 
include sufficient analysis for a determination to be made regarding 
significant environmental impacts.
    Response: The purpose of an Environmental Justice analysis is to 
determine whether a proposed action would have disproportionately high 
and adverse human health or environmental effects on minority or low-
income populations. As discussed throughout the EA and summarized in 
Chapter 4, Section 4.6, implementation of the provisions in this rule 
and the longline-related rule would not lead to substantial adverse 
human health or environmental effects on any population minority, low 
income, or otherwise.
    Comment 28: The EA is insufficient to make an informed 
determination regarding the significance of the likely environmental 
impacts of the alternatives considered. However, given that the Pacific 
purse seine fisheries are the biggest tuna fisheries in the world, that 
longline fishing is the biggest fishery in Hawaii, that many of the 
measures for purse seine fishing in the WCPO are being considered for 
the first time, and that there are increasingly loud concerns being 
expressed by governments and non-governmental organizations regarding 
overfishing of the world's marine ecosystems, it is clear that the 
actions being contemplated by NMFS are controversial and preparation of 
an Environmental Impact Statement (EIS) may better inform the public.
    Response: NMFS disagrees that the proposed rule is controversial, 
but even assuming it is, controversy alone is insufficient to trigger 
the requirement for an EIS. NMFS received only two comment letters in 
response to the proposed rule. Based on the analysis in the EA, NMFS 
does not believe that the effects of the action on the quality of the 
human environment are significant, or that the proposed action or its 
effects are controversial.

Changes from the Proposed Rule

    In the proposed regulations, regulatory instruction (3) said that 
``Subpart O, consisting of Sec. Sec.  300.210 through 200.222, is added 
to part 300 to read as follows:'' The instruction was meant to read `` 
consisting of Sec. Sec.  300.210 through 300.222... ,'' and the 
corresponding instruction in this final rule is corrected accordingly.
    On May 22, 2009, NMFS published in the Federal Register a proposed 
rule to implement, in part, the provisions of the Convention (74 FR 
23965). The regulations in that proposed rule (called here the ``WCPFC 
implementation

[[Page 38552]]

rule'') would establish a new subpart O in part 300 of title 50 of the 
Code of Federal Regulations, titled ``Western and Central Pacific 
Fisheries for Highly Migratory Species.'' The proposed rule that led to 
this final rule (called here the ``WCPFC purse seine rule'') was 
published after the proposed WCPFC implementation rule, on June 1, 
2009. Accordingly, the regulations in the proposed WCPFC purse seine 
rule were written as amendments to subpart O in part 300. However, this 
final rule is being published before the final WCPFC implementation 
rule. It is therefore necessary for subpart O of part 300 of title 50 
to be created in this final rule, as well as to incorporate relevant 
elements of the WCPFC implementation rule into these final regulations. 
Specifically, the following elements of the regulations proposed in the 
WCPFC implementation rule are included in this final rule: Sec.  
300.210, ``Purpose and scope,'' is included in its entirety. From Sec.  
300.211, ``Definitions,'' the introductory sentence and all the terms 
used in the proposed WCPFC purse seine rule are included. From Sec.  
300.215, ``Observers,'' paragraph (c), ``Accommodating observers,'' 
which is referenced in Sec.  300.223(e)(3) and (4) of the proposed 
WCPFC purse seine rule and this final rule, is included, with the 
exception of the sentence ``All fishing vessels subject to this section 
must carry a WCPFC observer when directed to do so by NMFS.'' From 
Sec.  300.222, ``Prohibitions,'' the introductory sentence is included.
    In Sec.  300.211, ``Definitions,'' the definition of FAD has been 
revised to clarify that it does not include a fishing vessel, provided 
that the fishing vessel is not used for the purpose of aggregating 
fish.
    In Sec.  300.223, ``Purse seine fishing restrictions,'' in order to 
clarify when, exactly, all the specified dates begin and end, an 
introductory sentence is included that states that all dates used in 
this section are in Universal Coordinated Time, also known as UTC.
    In Sec.  300.223, ``Purse seine fishing restrictions,'' paragraph 
(b)(2) is revised to add that during a FAD prohibition period, a purse 
seine may not be set in an area in which a FAD has been inspected or 
handled within the previous eight hours.
    In Sec.  300.223, ``Purse seine fishing restrictions,'' paragraph 
(b)(4) is revised to clarify that during a FAD prohibition period, a 
FAD may be removed from the water and if removed may be cleaned, 
provided that it is not returned to the water.

Classification

    The NMFS Assistant Administrator 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 all of this final rule except Sec. Sec.  
300.222(aa) and 300.223(f) (the sea turtle mitigation requirements and 
associated prohibitions). Compliance with the 30-delay requirement 
would be impracticable and contrary to the public interest the FAD 
prohibition period and associated observer requirement would be in 
effect for only about half of the specified period in 2009, meaning 
that NMFS would be frustrated in promulgating the regulations needed to 
satisfy the international obligations of the United States under the 
Convention. Also, NMFS had limited notice of the need to implement CMM 
2008-01, which was adopted in the December 2008 regular annual session 
of the WCPFC.

National Environmental Policy Act

    NMFS prepared an EA for this rule and concluded that there will be 
no significant impact on the human environment as a result of this 
rule. In the EA, NMFS compared the effects of the rule and four 
alternatives to the rule, including the No-Action or baseline 
alternative and three action alternatives. Although the alternatives 
would likely result in slightly different environmental impacts, all 
alternatives would have only minor impacts on bigeye tuna and other 
living marine resources in the WCPO. Overall, the expected impacts on 
bigeye tuna and other living marine resources from the rule or any of 
the action alternatives are expected to be similar and generally 
beneficial. The EA focuses on analyzing four alternatives for 
implementing the limit on the number of fishing days. NMFS initially 
considered two alternatives to the FAD prohibition period element of 
the rule that were eliminated from detailed consideration. For the 
other elements of the rule, NMFS was not able to identify any 
alternatives that were reasonable and feasible. The rule is neither the 
most restrictive nor the least restrictive manner in which to implement 
the limit on the number of fishing days. Rather, the rule seeks to 
establish a balance between the needs of fishery participants and the 
effects on the human environment.
    The effects on the human environment from the rule are expected to 
be minor for the following reasons. First, the duration of the rule 
(with the exception of the sea turtle mitigation requirements) would be 
limited to three years, after which, unless similar or more restrictive 
future actions are taken, conditions would likely rebound to conditions 
similar to those under the No-Action or baseline alternative. Second, 
the rule would have relatively minor effects on the conduct or catches 
of the U.S. purse seine fleet, and consequently only minor effects on 
the total fishing mortality rates of the stocks captured by the fleet, 
including bigeye tuna and yellowfin tuna in the WCPO. However, other 
present and reasonably foreseeable future actions for the conservation 
and management of highly migratory species could cause similar 
beneficial effects, so overall, the cumulative impacts on the affected 
environment could be greater than if the rule were implemented in 
isolation. Specifically, implementation by the United States of the 
provisions of CMM 2008-01 applicable to longline vessels (which NMFS is 
undertaking via a separate rulemaking) and implementation by other 
WCPFC members of the provisions of CMM 2008-01 and CMM 2008-03 would 
enhance the beneficial impacts to bigeye tuna, yellowfin tuna, and 
other living marine resources. If the WCPFC adopts and its members 
implement similar or more restrictive measures after the three-year 
duration of CMM 2008-01, the beneficial impacts would be further 
enhanced (e.g., there could be a greater likelihood of attaining the 
objectives of CMM 2008-01).
    The economic impacts of the rule are addressed in the EA only 
insofar as they are related to impacts to the biophysical environment. 
They are addressed more fully in the RIR, IRFA, and FRFA. A copy of the 
EA is available from NMFS (see ADDRESSES).

Executive Order 12866

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

Regulatory Flexibility Act

    NMFS prepared this final regulatory flexibility analysis (FRFA) for 
the rule, Fishing Restrictions and Observer Requirements in Purse Seine 
Fisheries for 2009-2011 and Turtle Mitigation Requirements in Purse 
Seine Fisheries. The FRFA incorporates the IRFA prepared for the 
proposed rule (74 FR 26160; June 1, 2009; available from NMFS see 
ADDRESSES). The analysis

[[Page 38553]]

provided in the IRFA is not repeated here in its entirety.
    The need for, reasons why action by the agency is being considered, 
and the objectives of the action are explained in the preambles to the 
proposed rule and final rule and are not repeated here. There are no 
disproportionate economic impacts between small and large vessels 
resulting from this rule. Furthermore, there are no disproportionate 
economic impacts from this rule based on vessel size, gear, or 
homeport. There are no new recordkeeping or reporting requirements 
associated with this rule. Other compliance requirements are described 
in the IRFA. This rule is issued under authority of the WCPFC 
Implementation Act.

Description of Small Entities to Which the Rule Will Apply

    The rule will apply to owners and operators of U.S. purse seine 
vessels used for fishing in the Convention Area. The number of affected 
vessels is the number licensed under the SPTT. The current number of 
licensed vessels is 39, but the number could soon reach the maximum 
number of licenses available under the SPTT (excluding joint-venture 
licenses), which is 40. Based on (limited) financial information about 
the purse seine fleet, NMFS believes that as many as 10 of the affected 
vessels are owned by small entities (i.e., they are business entities 
with gross annual receipts of no more than $4.0 million).

Steps Taken To Minimize the Significant Economic Impact on Small 
Entities

    NMFS explored alternatives that would achieve the objective of this 
action (to satisfy the international obligations of the United States 
under WCPFC CMM 2008-01 and CMM 2008-03 with respect to U.S. purse 
seine vessels) while minimizing economic impacts on small entities. 
Several alt