International Fisheries; Pacific Tuna Fisheries; Fishing Restrictions in the Longline and Purse Seine Fisheries in the Eastern Pacific Ocean in 2009, 2010, and 2011, 61046-61052 [E9-28034]

Download as PDF 61046 Federal Register / Vol. 74, No. 224 / Monday, November 23, 2009 / Rules and Regulations Matsu’’ (Chinese Taipei)), or the United Kingdom); D. Determination To Issue an Interim Rule A determination has been made under the authority of the Secretary of Defense that urgent and compelling reasons exist to publish an interim rule prior to affording the public an opportunity to comment. This interim rule implements the accession of Taiwan to the World Trade Organization Government Procurement Agreement. This action is necessary because the designation of Taiwan under the World Trade Organization Government Procurement Agreement took effect on July 15, 2009. Comments received in response to this interim rule will be considered in the formation of the final rule. * * * * * 4. Section 252.225–7045 is amended as follows: ■ a. By revising the clause date; and ■ b. In paragraph (a), in the definition of ‘‘Designated country’’, by revising paragraph (1) to read as follows: ■ 252.225–7045 Balance of Payments Program—Construction Material Under Trade Agreements. * * Government procurement. Therefore, 48 CFR part 252 is amended as follows: ■ PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 1. The authority citation for 48 CFR part 252 continues to read as follows: ■ Authority: 41 U.S.C. 421 and 48 CFR chapter 1. * [Amended] 2. Section 252.212–7001 is amended as follows: ■ a. By revising the clause date to read ‘‘(NOV 2009)’’; and ■ b. In paragraph (b)(11) by removing ‘‘(12JUL 2009)’’ and adding in its place ‘‘(NOV 2009)’’. ■ 3. Section 252.225–7021 is amended by revising the clause date and paragraph (a)(3)(i) to read as follows: * * * erowe on DSK5CLS3C1PROD with RULES TRADE AGREEMENTS (NOV 2009) (a) * * * (3) * * * (i) A World Trade Organization Government Procurement Agreement (WTO GPA) country (Aruba, Austria, Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known in the World Trade Organization as ‘‘the Separate Customs Territory of Taiwan, Penghu, Kinmen, and VerDate Nov<24>2008 15:09 Nov 20, 2009 * * * * * * * * Jkt 220001 BILLING CODE 5001–08–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 0907231161–91399–02] RIN 0648–AY08 Trade Agreements. * * [FR Doc. E9–27846 Filed 11–20–09; 8:45 am] ■ * * (1) A World Trade Organization Government Procurement Agreement (WTO GPA) country (Aruba, Austria, Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known in the World Trade Organization as ‘‘the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu’’ (Chinese Taipei)), or the United Kingdom); Amy G. Williams, Editor, Defense Acquisition Regulations System. 252.225–7021 * (a) * * * ‘‘Designated country’’ means— List of Subjects in 48 CFR Part 252 252.212–7001 * BALANCE OF PAYMENTS PROGRAM—CONSTRUCTION MATERIAL UNDER TRADE AGREEMENTS (NOV 2009) International Fisheries; Pacific Tuna Fisheries; Fishing Restrictions in the Longline and Purse Seine Fisheries in the Eastern Pacific Ocean in 2009, 2010, and 2011 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS is issuing regulations under the Tuna Conventions Act of 1950 (Act) to implement a decision of the Inter-American Tropical Tuna Commission (IATTC). That decision requires, among other things, that PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 members of the IATTC, including the United States, ensure that catches in the eastern Pacific Ocean (EPO) of bigeye tuna (Thunnus obesus) by longline vessels greater than 24 meters in length do not exceed specified levels in each of the years 2009, 2010, and 2011, and that purse seine vessels class size 4–6 do not fish in the EPO during established closure periods. This action is necessary for the United States to satisfy its obligations under the 1949 Convention for the Establishment of an Inter-American Tropical Tuna Commission (Convention), to which it is a Contracting Party. DATES: These regulations become effective on November 21, 2009. ADDRESSES: Copies of supporting documents that were prepared for this final rule, including the environmental assessment (EA) and proposed rule, are available via the Federal e-Rulemaking portal, at http://www.regulations.gov. Those documents are also available from the Regional Administrator, Rodney R. McInnis, NMFS Southwest Regional Office, 501 W. Ocean Boulevard, Suite 4200, Long Beach, CA 90802. 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: Heidi Hermsmeyer, NMFS SWR, 562– 980–4036. SUPPLEMENTARY INFORMATION: On October 19, 2009, NMFS published a proposed rule in the Federal Register (74 FR 53455) that would revise regulations at 50 CFR part 300, subpart C, in order to implement certain decisions of the IATTC. The proposed rule was open to public comment through November 9, 2009. As a Contracting Party to the Convention and a Member of the IATTC, the United States is legally bound to implement the decisions of the IATTC. The Act (16 U.S.C. 951–961 and 971 et seq.) authorizes the Secretary of Commerce, in consultation with the Secretary of State and the Secretary of the Department in which the United States Coast Guard (USCG) 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 IATTC. The authority to promulgate regulations has been delegated to NMFS. At its Eightieth Meeting, in June 2009, the IATTC adopted the Resolution on a Multiannual Program for the Conservation of Tuna in the Eastern E:\FR\FM\23NOR1.SGM 23NOR1 Federal Register / Vol. 74, No. 224 / Monday, November 23, 2009 / Rules and Regulations Pacific Ocean in 2009–2011 (Resolution C–09–01) related to bigeye and yellowfin tunas (Thunnus albacares) in the EPO. The resolution, available with other decisions of the IATTC at http:// www.iattc.org/ ResolutionsActiveENG.htm, places certain obligations on the IATTC’s High Contracting Parties, Cooperating NonParties, Cooperating Fishing Entity, and Regional Economic Integration Organization (collectively, CPCs). The proposed rule includes further background information, including information on the Convention and the IATTC, the international obligations of the United States under the Convention, the provisions of Resolution C–09–01, and the basis for the proposed regulations. New Requirements This final rule establishes the following requirements: erowe on DSK5CLS3C1PROD with RULES (1) 500 mt Bigeye Tuna Quota in the Longline Fishery The bigeye tuna limits established in Resolution C–09–01 are termed ‘‘catch’’ limits. The annual limit on harvests by large-scale longline vessels covers all bigeye tuna that is retained on board, as opposed to all bigeye tuna caught. Accordingly, this rule establishes a limit of 500 mt of bigeye tuna that is caught and retained. The limit has the purpose of reducing fishing mortality of EPO bigeye tuna. Once NMFS determines in any of the years 2009, 2010, or 2011 that the limit is expected to be reached by a specific future date in that year, NMFS would publish a notice in the Federal Register announcing that the limit is expected to be reached and that specific restrictions will be effective on that particular date until the end of the calendar year. NMFS would publish the notice at least seven calendar days before the effective date of the restrictions to provide fishermen advance notice of the restrictions. NMFS would also endeavor to make publicly available, such as on a website, regularly updated estimates and/or projections of bigeye tuna landings in order to help fishermen plan for the possibility of the limit being reached. In Resolution C–09–01, the IATTC has reserved the option of reversing or amending its adoption of the bigeye tuna catch limits in longline fisheries at its regular annual session in June 2011. If such a decision occurs, NMFS will take appropriate action to rescind any VerDate Nov<24>2008 15:09 Nov 20, 2009 Jkt 220001 closed areas that are established by regulation. Starting on the announced date and extending through the last day of that calendar year, it would be prohibited to use a U.S. fishing vessel greater than 24 meters in length to retain on board, transship, or land bigeye tuna captured in the Convention Area by longline gear. Bigeye tuna caught incidentally in the longline fishery starting on the announced date (e.g., in the shallow-set longline fishery targeting swordfish) would be required to be discarded. Any bigeye tuna already on board an applicable longline fishing vessel upon the effective date of the restrictions may be retained on board, transshipped, and/ or landed, provided that they are landed within 14 days after the restrictions become effective. In the case of a vessel that has declared to NMFS pursuant to 50 CFR 665.23(a) [applicable to the Hawaii-based longline fishery] that the current trip type is shallow-setting, the 14-day limit would be waived, but the number of bigeye tuna retained on board, transshipped, or landed must not exceed the number on board the vessel upon the effective date of the restrictions, as recorded by the NMFS observer on board the vessel. Starting on the announced date and extending through the last day of that calendar year, it would also be prohibited to transship bigeye tuna caught in the Convention Area by a longline vessel greater than 24 meters in length to any vessel other than a U.S. fishing vessel operating in compliance with a valid permit issued under 50 CFR 660.707 or 665.21. These restrictions do not apply to bigeye tuna caught by longline vessels 24 meters in length or less, or to longline gear used outside of the Convention Area, such as in the western and central Pacific Ocean. However, to help ensure compliance with the restrictions related to bigeye tuna caught by longline gear in the Convention Area, there are two additional, related, prohibitions that would be in effect starting on the announced date and extending through the last day of that calendar year. First, it would be prohibited to fish with a large-scale longline vessel that was declared to be on a deep-set longline trip, pursuant to 50 CFR 665.23(a), 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 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 61047 vessel, unless on a declared shallowsetting trip, would still be required to land any bigeye tuna taken within the Convention Area within 14 days of the effective date of the restrictions, as described above. Second, if a large-scale longline vessel on a declared deep-set longline trip, pursuant to 50 CFR 665.23(a), is used to fish outside the Convention Area and the vessel 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. (2) EPO Closure in the Purse Seine Fishery The rule prohibits fishing in the EPO by all U.S. purse seine vessels class size 4–6 for a period of 59 days in 2009, 62 days in 2010, and 73 days in 2011. For 2009, the closure is from November 21, 2009, to January 18, 2010. For 2010, the closure is from November 18, 2010, to January 18, 2011. For 2011, the closure is from November 7, 2011, to January 18, 2012. Notwithstanding the general prohibition on fishing during the closure period, a class size 4 vessel is allowed to make one single fishing trip of up to 30 days duration during the specified closure periods, provided that any such vessel carries an observer. In Resolution C–09–01, the IATTC has reserved the option of reversing its adoption of the closure at its regular annual meeting in June 2011. If such a decision occurs, NMFS would initiate rulemaking to implement the IATTC decision. (3) Closure Area to the West of the Galapagos Islands in the Purse Seine Fishery This rule also establishes an additional area closed to fishing for skipjack (Katsuwonus pelamis), bigeye, and yellowfin tunas by U.S. purse seine vessels class size 4–6 from September 29 to October 29 in 2010, and 2011. The area is a rectangle to the west of the Galapagos Islands and was chosen due to the high levels of juvenile bigeye tuna catch by purse seiners in the area. The area is between 96° and 110° W. longitude and between 4° N. and 3° S. latitude in the Convention Area and is depicted in Figure 1. Purse seine vessels class size 4–6 may transit the closed areas with all fishing gear stowed in a manner so as not to be readily available for fishing. E:\FR\FM\23NOR1.SGM 23NOR1 Federal Register / Vol. 74, No. 224 / Monday, November 23, 2009 / Rules and Regulations erowe on DSK5CLS3C1PROD with RULES (4) Tuna Retention in the Purse Seine Fishery take appropriate action to rescind the tuna retention provision. Purse seine vessels will also continue to be required to retain and land all skipjack, bigeye, and yellowfin tunas; however, there are some minor changes to the existing regulations at 50 CFR 300.24(e) and 300.25(e)(1). The regulations are being amended to be consistent with IATTC Resolution C– 09–01, so the catch retention measure is now only applicable to purse seine vessels class size 4–6, and the exception to the tuna retention measure is being adjusted accordingly. Tuna is required to be retained for fish considered unfit for human consumption for reasons other than size, and the single exemption of this is the final set of a trip, when there may be insufficient well space remaining to accommodate all the tuna caught in that set. The regulatory language was slightly different than this but with similar intent, so the amendment will not result in any significant changes to the purse seine fishery. The catch retention requirement will remain in effect through December 31, 2011. In Resolution C–09–01, the IATTC has reserved the option of reversing its adoption of the catch retention measure at its regular annual session in 2010. If such a decision occurs, NMFS would Response to Comments VerDate Nov<24>2008 15:09 Nov 20, 2009 Jkt 220001 There was a 20-day public comment period during which comments could be submitted electronically via the Federal e-Rulemaking portal, at http:// www.regulations.gov, or by mail. There was also a public hearing held on October 21, 2009, from 9 a.m. to 12 p.m. NMFS received one letter from staff of the Western Pacific Regional Fishery Management Council during the public comment period that included several substantive comments, which are summarized below. No other comments were received. No one attended the public hearing. Comment 1: Shallow-set vessels should be exempted from the proposed regulations that would prohibit longline fishing in the EPO and WCPO on the same trip. On average, 17 bigeye are caught per trip by the Hawaii-based shallow-set longline fleet whereas an average of 250 swordfish are caught per trip. It is clear that shallow-set longline fishing can target swordfish without catching much bigeye tuna, and given that approximately 75 percent of tuna caught on longline gear can be discarded alive, the final rule should be revised to allow shallow-set longline PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 fishing outside of the Convention Area on the same trip. Response: Once the limit is reached, the provisions to: (1) Prohibit fishing in the Convention Area and the WCPO during the same trip, and (2) require that fishing gear be stowed while the vessel is in the Convention Area during a trip in which fishing takes place in the WCPO, help provide effective mechanisms to enforce this rule. Both would substantially improve the likelihood of compliance with, and the ability to enforce, the more fundamental requirements of the rule. Specifically, both prohibitions are designed to ensure that vessels that are fishing in the WCPO and the Convention Area do not make longline sets in the Convention Area and retain bigeye tuna from those sets after the limit established by this rule is reached. It is important to retain these provisions for the deep-setting trips since these vessels are only subject to about 20 percent observer coverage and generally target bigeye tuna. However, NMFS acknowledges that these two prohibitions should not apply to vessels on declared shallow-setting trips pursuant to 50 CFR 665.23(a), since swordfish are being targeted, the amount of bigeye tuna discards would be minimal, and the fishery is subject to 100 percent observer coverage. Accordingly, the proposed rule has been E:\FR\FM\23NOR1.SGM 23NOR1 ER23NO09.000</GPH> 61048 erowe on DSK5CLS3C1PROD with RULES Federal Register / Vol. 74, No. 224 / Monday, November 23, 2009 / Rules and Regulations modified in this final rule such that the two prohibitions do not apply to shallow-set longline vessels. Comment 2: The proposed rule states that bigeye tuna are subject to overfishing and overfished in the EPO. While this may be true according to the stock assessment prepared by the staff of the IATTC, bigeye tuna is considered a pan-Pacific stock, and on a stock wide basis it is not considered overfished in terms of the Magnuson-Stevens Act (MSA). NMFS’s Draft EA (October 2009) associated with the proposed rule acknowledges this in Section 3.3.2.1 (pg. 28). Response: The proposed rule stated that IATTC Resolution C–09–01 was based on the stock assessment conducted by IATTC scientists in May 2009, which concluded that the bigeye stock in the EPO was both subject to overfishing and in an overfished state. While the resolution was based on the stock assessment for bigeye in the EPO conducted by IATTC scientists, NMFS’s 2009 Status of U.S. Fisheries Third Quarter Update recognizes one stock of bigeye in the Pacific Ocean and has determined that the stock is subject to overfishing, but not in an overfished condition. Comment 3: The proposed rule and Draft EA do not identify the catch limits provided to Japan, Korea, Taiwan, and China under the IATTC Resolution (C– 09–01) for which the 500 mt limit for U.S. longline vessels over 24 m is derived. The public should be provided this information because it adds context to the relative impact of U.S. longline fisheries on the bigeye resource in the EPO. The total annual catch limits established by the resolution for vessels greater than 24 m in length of bigeye tuna caught in the EPO are as follows for 2009 and 2010, respectively: China— 2,533 mt and 2,507 mt; Japan—32,713 mt and 32,372 mt; Korea—12,073 mt and 11,947 mt; and Chinese Taipei 7,635 mt and 7,555 mt. Response: NMFS acknowledges this comment. Comment 4: In the draft EA (pg. 61), NMFS acknowledges that it is very unlikely that the 500 mt catch limit applicable to the U.S. longline fishery in the EPO would be reached in 2009, 2010, or 2011. If this is true, why is NMFS going through rulemaking to implement a catch limit that has no realistic possibility of being reached? Response: While it is unlikely, based on current projections of bigeye catch in the EPO by large-scale longline vessels, that the 500 mt catch limit will be reached in any each of the years 2009– 2011, it is a possibility; therefore, NMFS is implementing these regulations so VerDate Nov<24>2008 15:09 Nov 20, 2009 Jkt 220001 that it can satisfy its international obligations should catches increase in the EPO and the limits be reached in any given year. In addition, NMFS is taking extra precautions in this situation because NMFS is also proposing to establish catch limits for bigeye tuna caught in the WCPO by longline vessels in 2009–2011 in order to implement a decision of the Western and Central Pacific Fisheries Commission (WCPFC) (FR 32521, July 8, 2009), thus there is a potential for vessels to shift more effort into the Convention Area should the catch limit in the WCPO be reached in any given year. Comment 5: Page 23 of the Draft EA includes a table (Table 3–4) that indicates that 54 Hawaii longline vessels less than 24 m in length engaged in shallow-set fishing in 2005, 16 in 2006, 61 in 2007, and 84 in 2008. This is incorrect. Response: Table 3–4 in the Draft EA should have shown that 54 Hawaii longline vessels less than 24 m in length engaged in deep-set fishing in 2005, 16 in 2006, 61 in 2007, and 84 in 2008. Table 3–4 in the Final EA has been adjusted accordingly. Changes From the Proposed Rule As described in the response to comment 1, § 300.24(b)(4)(iii) and (iv) were revised to allow longline vessels that shallow-set to continue fishing inside and outside of the Convention Area during the same fishing trip during a closure provided that no bigeye harvested in the Convention Area are retained. In the final regulations, § 300.21, ‘‘Definitions’’, the definition of a ‘‘fishing trip’’ was revised to be consistent with the definition of a fishing trip used in the regulations to implement the WCPFC at § 300.211. In the final regulations, § 300.25, ‘‘Eastern Pacific fisheries management’’, the subparagraphs of paragraph (b)(4) were renumbered for clarity. Classification The NMFS Assistant Administrator has determined that this final rule is consistent with the Tuna Conventions Act and other applicable laws. There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date for this entire final rule. Compliance with the 30-delay requirement would be impracticable and contrary to the public interest. If we did not waive the 30-day delay, the EPO closure period in the purse seine fishery would only be in effect for about half of the specified period in 2009, meaning that NMFS would not completely satisfy the international obligations of the PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 61049 United States under the Convention. This would be contrary to the public interest because bigeye tuna are currently subject to overfishing, and this rule has the objective of limiting or reducing the fishing effort in U.S. fisheries targeting bigeye tuna in the EPO. The United States also had limited notice of the need to implement Resolution C–09–01, which was adopted ad referendum at the regular annual meeting of the IATTC in June 2009, but was not fully adopted by the Commission until Colombia joined the consensus on July 15, 2009. Under the Tuna Conventions Act, the United States cannot implement decisions made by the Commission unless they are adopted by consensus. To help keep the regulated community informed of the potential for a purse seine closure in 2009, NMFS advised affected purse seine vessel managers and owners of the proposed November 21, 2009–January 18, 2010 purse seine closure soon after the IATTC Resolution was adopted in July 2009. NMFS also held a public hearing on October 21, 2009, and solicited public comments on the proposed rule during a 20-day public comment period. In addition, NMFS sent the proposed rule directly to purse seine vessel managers and owners in October 2009 so they would be aware of, and prepared for, the proposed closure period slated to begin on November 21, 2009. Therefore, NMFS finds that there is good cause to waive the 30-day delay in effectiveness in this circumstance. This final rule has been determined to be not significant for purposes of Executive Order 12866. A final regulatory flexibility analysis (FRFA) was prepared. The FRFA incorporates the IRFA prepared for the proposed rule (74 FR 53455; October 19, 2009) and a summary of the analyses completed to support the action. No public comments were received on the IRFA. A copy of the IRFA is available from NMFS (see ADDRESSES). A description of the action, why it is being considered, and the legal basis for this action are contained in the preamble and summary section of the proposed rule. 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 Tuna Conventions Act. E:\FR\FM\23NOR1.SGM 23NOR1 61050 Federal Register / Vol. 74, No. 224 / Monday, November 23, 2009 / Rules and Regulations erowe on DSK5CLS3C1PROD with RULES Description of Small Entities to Which the Rule Will Apply This rule applies to owners and operators of U.S. longline vessels over 24 meters length overall, and U.S. purse seine vessels class size 4–6 fishing for yellowfin, bigeye, and skipjack tunas in the Convention Area. The total number of affected longline vessels is approximated by the average number of U.S. large-scale longline vessels that have caught bigeye tuna in the EPO in 2005–2008. In each of the years 2005 through 2008, the number of large-scale longline vessels that caught bigeye in the EPO were 18, 8, 18, and 30, respectively. Thus approximately 19 longline vessels on average are likely to be affected by this proposed rule, if adopted. The majority of the longline vessels that may be affected by this proposed rule are based out of Hawaii and American Samoa. There is also one longline vessel based out of California that would be affected by the proposed rule. These longline vessels target bigeye tuna using deep sets, and during certain parts of the year, portions of the Hawaii and American Samoa fleet target swordfish using shallow sets. As an indication of the size of businesses in the fishery, average annual fleet-wide ex-vessel revenues during 2005–2007 were about $60 million. Given the number of vessels active during that period (127, on average), this indicates an average of about $500,000 in annual revenue per vessel, thus all of the businesses affected by the longline measures would be considered small business entities. It is estimated that even with a large increase in the catch rates of bigeye tuna in the EPO the 500 mt catch limit would not be reached in any of the applicable years (2009–2011). The total number of affected purse seine vessels is approximated by the current number of U.S. purse seine vessels class size 4–6 authorized to fish in the IATTC Convention Area. As of July 2009, there were five U.S. purse seine vessels listed on the IATTC Vessel Register; two are class size 5 (273 to 363 mt carrying capacity) and three are class size 6 (greater than 363 mt carrying capacity). Purse seine vessels class size 5 would be considered small business entities (revenues equal to or less than $4 million per year). It is estimated that from 2004–2008, the majority, if not all, class size 5 U.S. purse seine vessels have had revenues of less than $0.5 million per year. Class size 6 vessels are categorized as large business entities (revenues in excess of $4 million per year). A large purse seine vessel typically generates about 4,000 to 5,000 VerDate Nov<24>2008 15:09 Nov 20, 2009 Jkt 220001 mt of tuna valued at about $4 to $5 million per year. It is estimated that purse seine sets would be prohibited for 16 percent of the year in 2009 (59 day closure/365 days), 17 percent of the year in 2010 (61 day closure/365 days), and 20 percent of the year in 2011 (73 day closure/365 days), thus catches would be expected to be affected accordingly; however, the affected vessels are capable of fishing outside of the closure area (i.e., in the WCPO) during the closure period and/ or for the remainder of the year, since the fishery continues year round, and vessels tend to use relatively short closures (such as these) for regular vessel maintenance. It may not be economically viable for the class size 5 purse seine vessels to register under the SPTT and fish in the WCPO because of their smaller carrying capacity and the increased costs associated with fishing far from port. At least one of the class size 5 vessels would not be able to register to fish in the WCPO because only one license is currently available. Steps Taken To Minimize the Economic Impact on Small Business Entities NMFS compared the effects of the proposed rule and various alternatives to the proposed rule on small business entities. For the longline fishery, an economic impact is not anticipated under the preferred alternative since the quota is unlikely to be met in any of the applicable years; however, NMFS considered the following alternatives. One of the alternatives would have prohibited all longline fishing in the Convention Area once the limit is reached, rather than just prohibiting the retention, transshipment, and landing of bigeye tuna caught in the Convention Area. The other alternative would have prohibited deep-set longline fishing in the Convention Area once the limit is reached, allowing shallow-set longline fishing in the Convention Area to continue, provided that no bigeye tuna and no yellowfin tuna caught in the Convention Area are retained, transshipped, or landed. For the EPO purse seine closure, NMFS considered one alternative for each applicable year which differs from the rule in terms of when the closure is implemented. However, based on catch data from 2004–2009, small entities have historically made more tuna landings in the EPO during the alternatives’ closure periods (July through September) compared to the closure period in the rule (November through January). Thus, for each year the alternative would not minimize the economic impact on small entities compared to the preferred alternative. PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 There were no alternatives for the 30day purse seine closure to the west of the Galapagos from 2009–2011 and for the tuna retention measure which would accomplish the stated objectives of Resolution C–09–01 and which would minimize any significant economic impact on the affected small entities. Small Entity Compliance Guide Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as ‘‘small entity compliance guides.’’ The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, one small entity compliance guide was prepared for the affected small business entities in the longline fishery, and one was prepared for the affected small business entities in the purse seine fishery. Copies of this final rule and the compliance guides are available from the Southwest Regional Office (see ADDRESSES) and on the following Web site: http:// swr.nmfs.noaa.gov/. The purse seine guide will be sent to all holders of permits for the purse seine fishery that are authorized by the IATTC to fish in the Convention Area, and the longline guide will be sent to all holders of permits for the longline fishery that have large-scale longline vessels. Copies of the guide and final rule will also be available upon request. List of Subjects in 50 CFR Part 300 Administrative practice and procedure, Fish, Fisheries, Fishing, Marine resources, Reporting and recordkeeping requirements, Treaties. Dated: November 18, 2009. James W. Balsiger, Acting Assistant Administrator for Fisheries, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 300, subpart C is amended as follows: ■ PART 300—INTERNATIONAL FISHERIES REGULATIONS Subpart C—Eastern Pacific Tuna Fisheries 1. The authority citation for 50 CFR part 300, subpart C, continues to read as follows: ■ Authority: 16 U.S.C. 951–961 et seq. E:\FR\FM\23NOR1.SGM 23NOR1 Federal Register / Vol. 74, No. 224 / Monday, November 23, 2009 / Rules and Regulations 2. In § 300.21, the definition of ‘‘Fishing trip’’ is revised and a definition of ‘‘Longline gear’’ is added, in alphabetical order, to read as follows: ■ § 300.21 Definitions. * * * * * Fishing trip means a period that a fishing vessel spends at sea between port visits and during which any fishing occurs. * * * * * Longline gear means a type of fishing gear consisting of a main line that exceeds 1 nautical mile in length, is suspended horizontally in the water column anchored, floating, or attached to a vessel, and from which branch or dropper lines with hooks are attached. * * * * * ■ 3. In § 300.24, paragraph (e) is revised, and new paragraphs (k) through (n) are added to read as follows: § 300.24 Prohibitions. * * * * * (e) Fail to retain any bigeye, skipjack, or yellowfin tuna caught by a fishing vessel of the United States of class size 4–6 using purse seine gear in the Convention Area, except fish considered unfit for human consumption due to reasons other than size, and except on the last set of the trip if there is insufficient well capacity to accommodate the entire catch. * * * * * (k) Use a fishing vessel over 24 meters in length to retain on board, transship, or land bigeye tuna captured by longline gear in the Convention Area or to fish in contravention of § 300.25(b)(4)(i) or (ii). (l) Use a fishing vessel over 24 meters in length to fish in the Pacific Ocean using longline gear both inside and outside the Convention Area on the same fishing trip in contravention of § 300.25(b)(4)(iii). (m) Fail to stow gear as required in § 300.25(b)(4)(iv) or (f)(3). (n) Use a fishing vessel of class size 4–6 to fish with purse seine gear in the Convention Area in contravention of § 300.25(f)(1) or (2). ■ 4. In § 300.25, paragraphs (b) and (e)(1) are revised, and paragraph (f) is added to read as follows: § 300.25 Eastern Pacific fisheries management. erowe on DSK5CLS3C1PROD with RULES * * * * * (b) Tuna quotas in the longline fishery in the EPO. (1) Fishing seasons for all tuna species begin on January 1 and end either on December 31 or when NMFS closes the fishery for a specific species. (2) For each of the calendar years 2009, 2010, and 2011, there is a limit of VerDate Nov<24>2008 15:09 Nov 20, 2009 Jkt 220001 500 metric tons of bigeye tuna that may be captured and landed by longline gear in the Convention Area by fishing vessels of the United States that are over 24 meters in length. (3) NMFS will monitor bigeye tuna landings with respect to the limit established under paragraph (b)(2) of this section using data submitted in logbooks and other available information. After NMFS determines that the limit in any year is expected to be reached by a specific future date, and at least 7 calendar days in advance of that date, NMFS will publish a notice in the Federal Register announcing that the limit has been reached and that the restrictions described in paragraph (b)(4) of this section will be in effect through the end of the calendar year. (4) Once an announcement is made pursuant to paragraph (b)(3) of this section, the following restrictions will apply during the period specified in the announcement: (i) A fishing vessel of the United States over 24 meters in length may not be used to retain on board, transship, or land bigeye tuna captured by longline gear in the Convention Area, except as follows: (A) Any bigeye tuna already on board a fishing vessel upon the effective date of the prohibitions may be retained on board, transshipped, and/or landed, to the extent authorized by applicable laws and regulations, provided that they are landed within 14 days after the prohibitions become effective. (B) In the case of a vessel that has declared to NMFS, pursuant to § 665.23(a) of this title, that the current trip type is shallow-setting, the 14-day limit is waived, but the number of bigeye tuna retained on board, transshipped, or landed must not exceed the number on board the vessel upon the effective date of the prohibitions, as recorded by the NMFS observer on board the vessel. (ii) Bigeye tuna caught by longline gear used on a vessel of the United States over 24 meters in length in the Convention Area may not be transshipped to a fishing vessel unless that fishing vessel is operated in compliance with a valid permit issued under § 660.707 or § 665.21 of this title. (iii) A fishing vessel of the United States over 24 meters in length, other than a vessel for which a declaration has been made to NMFS, pursuant to § 665.23(a) of this title, that the current trip type is shallow-setting, may not be used to fish in the Pacific Ocean using longline gear both inside and outside the Convention Area during the same fishing trip, with the exception of a fishing trip during which the PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 61051 prohibitions were put into effect as announced under paragraph (b)(3) of this section. (iv) If a fishing vessel of the United States over 24 meters in length, other than a vessel for which a declaration has been made to NMFS, pursuant to § 665.23(a) of this title, that the current trip type is shallow-setting, is used to fish in the Pacific Ocean using longline gear outside the Convention Area and the vessel 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; 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. * * * * * (e) Bycatch reduction measures. (1) Bigeye, skipjack, and yellowfin tuna caught by a fishing vessel of the United States of class size 4–6 (more than 182 metric tons carrying capacity) using purse seine gear must be retained on board and landed, except fish deemed unfit for human consumption for reasons other than size from 0000 hours on January 1, 2010 to 2400 hours on December 31, 2011. This requirement shall not apply to the last set of a trip if the available well capacity is insufficient to accommodate the entire catch. * * * * * (f) Purse seine closures in the EPO. (1) A fishing vessel of the United States of class size 4–6 (more than 182 metric tons carrying capacity) may not be used to fish with purse seine gear in the Convention Area from 0000 hours on November 21, 2009, to 2400 hours on January 18, 2010; from 0000 hours on November 18, 2010, to 2400 hours on January 18, 2011; and from 0000 hours on November 7, 2011, to 2400 hours on January 18, 2012, except that a vessel of class size 4 (182 to 272 metric tons carrying capacity) may make one fishing trip of up to 30 days duration during the specified closure period, provided that the vessel carries an observer of the OnBoard Observer Program of the Agreement on the International Dolphin Conservation Program during the entire fishing trip. (2) A fishing vessel of the United States of class size 4–6 (more than 182 metric tons carrying capacity) may not be used from 0000 hours on September 29 to 2400 hours on October 29 in the years 2010 or 2011 to fish with purse seine gear within the area bounded at E:\FR\FM\23NOR1.SGM 23NOR1 61052 Federal Register / Vol. 74, No. 224 / Monday, November 23, 2009 / Rules and Regulations erowe on DSK5CLS3C1PROD with RULES the east and west by 96° and 110° W. longitude and bounded at the north and south by 4° N. and 3° S. latitude. (3) At all times while a vessel is in a Closed Area established under paragraphs (f)(1) or (f)(2) of this section, VerDate Nov<24>2008 15:09 Nov 20, 2009 Jkt 220001 the fishing gear of the vessel shall be stowed in a manner as not to be readily available for fishing. In particular, the boom shall be lowered as far as possible so that the vessel cannot be used for fishing, but so that the skiff is accessible PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 for use in emergency situations; the helicopter, if any shall be tied down; and launches shall be secured. [FR Doc. E9–28034 Filed 11–18–09; 4:15 pm] BILLING CODE 3510–22–P E:\FR\FM\23NOR1.SGM 23NOR1

Agencies

[Federal Register Volume 74, Number 224 (Monday, November 23, 2009)]
[Rules and Regulations]
[Pages 61046-61052]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-28034]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 0907231161-91399-02]
RIN 0648-AY08


International Fisheries; Pacific Tuna Fisheries; Fishing 
Restrictions in the Longline and Purse Seine Fisheries in the Eastern 
Pacific Ocean in 2009, 2010, and 2011

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

ACTION: Final rule.

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SUMMARY: NMFS is issuing regulations under the Tuna Conventions Act of 
1950 (Act) to implement a decision of the Inter-American Tropical Tuna 
Commission (IATTC). That decision requires, among other things, that 
members of the IATTC, including the United States, ensure that catches 
in the eastern Pacific Ocean (EPO) of bigeye tuna (Thunnus obesus) by 
longline vessels greater than 24 meters in length do not exceed 
specified levels in each of the years 2009, 2010, and 2011, and that 
purse seine vessels class size 4-6 do not fish in the EPO during 
established closure periods. This action is necessary for the United 
States to satisfy its obligations under the 1949 Convention for the 
Establishment of an Inter-American Tropical Tuna Commission 
(Convention), to which it is a Contracting Party.

DATES: These regulations become effective on November 21, 2009.

ADDRESSES: Copies of supporting documents that were prepared for this 
final rule, including the environmental assessment (EA) and proposed 
rule, are available via the Federal e-Rulemaking portal, at http://www.regulations.gov. Those documents are also available from the 
Regional Administrator, Rodney R. McInnis, NMFS Southwest Regional 
Office, 501 W. Ocean Boulevard, Suite 4200, Long Beach, CA 90802. 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: Heidi Hermsmeyer, NMFS SWR, 562-980-
4036.

SUPPLEMENTARY INFORMATION: 
    On October 19, 2009, NMFS published a proposed rule in the Federal 
Register (74 FR 53455) that would revise regulations at 50 CFR part 
300, subpart C, in order to implement certain decisions of the IATTC. 
The proposed rule was open to public comment through November 9, 2009.
    As a Contracting Party to the Convention and a Member of the IATTC, 
the United States is legally bound to implement the decisions of the 
IATTC. The Act (16 U.S.C. 951-961 and 971 et seq.) authorizes the 
Secretary of Commerce, in consultation with the Secretary of State and 
the Secretary of the Department in which the United States Coast Guard 
(USCG) 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 IATTC. The authority to promulgate regulations has 
been delegated to NMFS.
    At its Eightieth Meeting, in June 2009, the IATTC adopted the 
Resolution on a Multiannual Program for the Conservation of Tuna in the 
Eastern

[[Page 61047]]

Pacific Ocean in 2009-2011 (Resolution C-09-01) related to bigeye and 
yellowfin tunas (Thunnus albacares) in the EPO. The resolution, 
available with other decisions of the IATTC at http://www.iattc.org/ResolutionsActiveENG.htm, places certain obligations on the IATTC's 
High Contracting Parties, Cooperating Non-Parties, Cooperating Fishing 
Entity, and Regional Economic Integration Organization (collectively, 
CPCs).
    The proposed rule includes further background information, 
including information on the Convention and the IATTC, the 
international obligations of the United States under the Convention, 
the provisions of Resolution C-09-01, and the basis for the proposed 
regulations.
New Requirements
    This final rule establishes the following requirements:

(1) 500 mt Bigeye Tuna Quota in the Longline Fishery

    The bigeye tuna limits established in Resolution C-09-01 are termed 
``catch'' limits. The annual limit on harvests by large-scale longline 
vessels covers all bigeye tuna that is retained on board, as opposed to 
all bigeye tuna caught. Accordingly, this rule establishes a limit of 
500 mt of bigeye tuna that is caught and retained. The limit has the 
purpose of reducing fishing mortality of EPO bigeye tuna. Once NMFS 
determines in any of the years 2009, 2010, or 2011 that the limit is 
expected to be reached by a specific future date in that year, NMFS 
would publish a notice in the Federal Register announcing that the 
limit is expected to be reached and that specific restrictions will be 
effective on that particular date until the end of the calendar year. 
NMFS would publish the notice at least seven calendar days before the 
effective date of the restrictions to provide fishermen advance notice 
of the restrictions. NMFS would also endeavor to make publicly 
available, such as on a website, regularly updated estimates and/or 
projections of bigeye tuna landings in order to help fishermen plan for 
the possibility of the limit being reached. In Resolution C-09-01, the 
IATTC has reserved the option of reversing or amending its adoption of 
the bigeye tuna catch limits in longline fisheries at its regular 
annual session in June 2011. If such a decision occurs, NMFS will take 
appropriate action to rescind any closed areas that are established by 
regulation.
    Starting on the announced date and extending through the last day 
of that calendar year, it would be prohibited to use a U.S. fishing 
vessel greater than 24 meters in length to retain on board, transship, 
or land bigeye tuna captured in the Convention Area by longline gear. 
Bigeye tuna caught incidentally in the longline fishery starting on the 
announced date (e.g., in the shallow-set longline fishery targeting 
swordfish) would be required to be discarded. Any bigeye tuna already 
on board an applicable longline fishing vessel upon the effective date 
of the restrictions may be retained on board, transshipped, and/or 
landed, provided that they are landed within 14 days after the 
restrictions become effective. In the case of a vessel that has 
declared to NMFS pursuant to 50 CFR 665.23(a) [applicable to the 
Hawaii-based longline fishery] that the current trip type is shallow-
setting, the 14-day limit would be waived, but the number of bigeye 
tuna retained on board, transshipped, or landed must not exceed the 
number on board the vessel upon the effective date of the restrictions, 
as recorded by the NMFS observer on board the vessel. Starting on the 
announced date and extending through the last day of that calendar 
year, it would also be prohibited to transship bigeye tuna caught in 
the Convention Area by a longline vessel greater than 24 meters in 
length to any vessel other than a U.S. fishing vessel operating in 
compliance with a valid permit issued under 50 CFR 660.707 or 665.21.
    These restrictions do not apply to bigeye tuna caught by longline 
vessels 24 meters in length or less, or to longline gear used outside 
of the Convention Area, such as in the western and central Pacific 
Ocean. However, to help ensure compliance with the restrictions related 
to bigeye tuna caught by longline gear in the Convention Area, there 
are two additional, related, prohibitions that would be in effect 
starting on the announced date and extending through the last day of 
that calendar year. First, it would be prohibited to fish with a large-
scale longline vessel that was declared to be on a deep-set longline 
trip, pursuant to 50 CFR 665.23(a), 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, unless on a 
declared shallow-setting trip, would still be required to land any 
bigeye tuna taken within the Convention Area within 14 days of the 
effective date of the restrictions, as described above. Second, if a 
large-scale longline vessel on a declared deep-set longline trip, 
pursuant to 50 CFR 665.23(a), is used to fish outside the Convention 
Area and the vessel 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.

(2) EPO Closure in the Purse Seine Fishery

    The rule prohibits fishing in the EPO by all U.S. purse seine 
vessels class size 4-6 for a period of 59 days in 2009, 62 days in 
2010, and 73 days in 2011. For 2009, the closure is from November 21, 
2009, to January 18, 2010. For 2010, the closure is from November 18, 
2010, to January 18, 2011. For 2011, the closure is from November 7, 
2011, to January 18, 2012. Notwithstanding the general prohibition on 
fishing during the closure period, a class size 4 vessel is allowed to 
make one single fishing trip of up to 30 days duration during the 
specified closure periods, provided that any such vessel carries an 
observer. In Resolution C-09-01, the IATTC has reserved the option of 
reversing its adoption of the closure at its regular annual meeting in 
June 2011. If such a decision occurs, NMFS would initiate rulemaking to 
implement the IATTC decision.

(3) Closure Area to the West of the Galapagos Islands in the Purse 
Seine Fishery

    This rule also establishes an additional area closed to fishing for 
skipjack (Katsuwonus pelamis), bigeye, and yellowfin tunas by U.S. 
purse seine vessels class size 4-6 from September 29 to October 29 in 
2010, and 2011. The area is a rectangle to the west of the Galapagos 
Islands and was chosen due to the high levels of juvenile bigeye tuna 
catch by purse seiners in the area. The area is between 96[deg] and 
110[deg] W. longitude and between 4[deg] N. and 3[deg] S. latitude in 
the Convention Area and is depicted in Figure 1. Purse seine vessels 
class size 4-6 may transit the closed areas with all fishing gear 
stowed in a manner so as not to be readily available for fishing.

[[Page 61048]]

[GRAPHIC] [TIFF OMITTED] TR23NO09.000

(4) Tuna Retention in the Purse Seine Fishery

    Purse seine vessels will also continue to be required to retain and 
land all skipjack, bigeye, and yellowfin tunas; however, there are some 
minor changes to the existing regulations at 50 CFR 300.24(e) and 
300.25(e)(1). The regulations are being amended to be consistent with 
IATTC Resolution C-09-01, so the catch retention measure is now only 
applicable to purse seine vessels class size 4-6, and the exception to 
the tuna retention measure is being adjusted accordingly. Tuna is 
required to be retained for fish considered unfit for human consumption 
for reasons other than size, and the single exemption of this is the 
final set of a trip, when there may be insufficient well space 
remaining to accommodate all the tuna caught in that set. The 
regulatory language was slightly different than this but with similar 
intent, so the amendment will not result in any significant changes to 
the purse seine fishery. The catch retention requirement will remain in 
effect through December 31, 2011. In Resolution C-09-01, the IATTC has 
reserved the option of reversing its adoption of the catch retention 
measure at its regular annual session in 2010. If such a decision 
occurs, NMFS would take appropriate action to rescind the tuna 
retention provision.

Response to Comments

    There was a 20-day public comment period during which comments 
could be submitted electronically via the Federal e-Rulemaking portal, 
at http://www.regulations.gov, or by mail. There was also a public 
hearing held on October 21, 2009, from 9 a.m. to 12 p.m. NMFS received 
one letter from staff of the Western Pacific Regional Fishery 
Management Council during the public comment period that included 
several substantive comments, which are summarized below. No other 
comments were received. No one attended the public hearing.
    Comment 1: Shallow-set vessels should be exempted from the proposed 
regulations that would prohibit longline fishing in the EPO and WCPO on 
the same trip. On average, 17 bigeye are caught per trip by the Hawaii-
based shallow-set longline fleet whereas an average of 250 swordfish 
are caught per trip. It is clear that shallow-set longline fishing can 
target swordfish without catching much bigeye tuna, and given that 
approximately 75 percent of tuna caught on longline gear can be 
discarded alive, the final rule should be revised to allow shallow-set 
longline fishing outside of the Convention Area on the same trip.
    Response: Once the limit is reached, the provisions to: (1) 
Prohibit fishing in the Convention Area and the WCPO during the same 
trip, and (2) require that fishing gear be stowed while the vessel is 
in the Convention Area during a trip in which fishing takes place in 
the WCPO, help provide effective mechanisms to enforce this rule. Both 
would substantially improve the likelihood of compliance with, and the 
ability to enforce, the more fundamental requirements of the rule. 
Specifically, both prohibitions are designed to ensure that vessels 
that are fishing in the WCPO and the Convention Area do not make 
longline sets in the Convention Area and retain bigeye tuna from those 
sets after the limit established by this rule is reached. It is 
important to retain these provisions for the deep-setting trips since 
these vessels are only subject to about 20 percent observer coverage 
and generally target bigeye tuna. However, NMFS acknowledges that these 
two prohibitions should not apply to vessels on declared shallow-
setting trips pursuant to 50 CFR 665.23(a), since swordfish are being 
targeted, the amount of bigeye tuna discards would be minimal, and the 
fishery is subject to 100 percent observer coverage. Accordingly, the 
proposed rule has been

[[Page 61049]]

modified in this final rule such that the two prohibitions do not apply 
to shallow-set longline vessels.
    Comment 2: The proposed rule states that bigeye tuna are subject to 
overfishing and overfished in the EPO. While this may be true according 
to the stock assessment prepared by the staff of the IATTC, bigeye tuna 
is considered a pan-Pacific stock, and on a stock wide basis it is not 
considered overfished in terms of the Magnuson-Stevens Act (MSA). 
NMFS's Draft EA (October 2009) associated with the proposed rule 
acknowledges this in Section 3.3.2.1 (pg. 28).
    Response: The proposed rule stated that IATTC Resolution C-09-01 
was based on the stock assessment conducted by IATTC scientists in May 
2009, which concluded that the bigeye stock in the EPO was both subject 
to overfishing and in an overfished state. While the resolution was 
based on the stock assessment for bigeye in the EPO conducted by IATTC 
scientists, NMFS's 2009 Status of U.S. Fisheries Third Quarter Update 
recognizes one stock of bigeye in the Pacific Ocean and has determined 
that the stock is subject to overfishing, but not in an overfished 
condition.
    Comment 3: The proposed rule and Draft EA do not identify the catch 
limits provided to Japan, Korea, Taiwan, and China under the IATTC 
Resolution (C-09-01) for which the 500 mt limit for U.S. longline 
vessels over 24 m is derived. The public should be provided this 
information because it adds context to the relative impact of U.S. 
longline fisheries on the bigeye resource in the EPO. The total annual 
catch limits established by the resolution for vessels greater than 24 
m in length of bigeye tuna caught in the EPO are as follows for 2009 
and 2010, respectively: China--2,533 mt and 2,507 mt; Japan--32,713 mt 
and 32,372 mt; Korea--12,073 mt and 11,947 mt; and Chinese Taipei 7,635 
mt and 7,555 mt.
    Response: NMFS acknowledges this comment.
    Comment 4: In the draft EA (pg. 61), NMFS acknowledges that it is 
very unlikely that the 500 mt catch limit applicable to the U.S. 
longline fishery in the EPO would be reached in 2009, 2010, or 2011. If 
this is true, why is NMFS going through rulemaking to implement a catch 
limit that has no realistic possibility of being reached?
    Response: While it is unlikely, based on current projections of 
bigeye catch in the EPO by large-scale longline vessels, that the 500 
mt catch limit will be reached in any each of the years 2009-2011, it 
is a possibility; therefore, NMFS is implementing these regulations so 
that it can satisfy its international obligations should catches 
increase in the EPO and the limits be reached in any given year. In 
addition, NMFS is taking extra precautions in this situation because 
NMFS is also proposing to establish catch limits for bigeye tuna caught 
in the WCPO by longline vessels in 2009-2011 in order to implement a 
decision of the Western and Central Pacific Fisheries Commission 
(WCPFC) (FR 32521, July 8, 2009), thus there is a potential for vessels 
to shift more effort into the Convention Area should the catch limit in 
the WCPO be reached in any given year.
    Comment 5: Page 23 of the Draft EA includes a table (Table 3-4) 
that indicates that 54 Hawaii longline vessels less than 24 m in length 
engaged in shallow-set fishing in 2005, 16 in 2006, 61 in 2007, and 84 
in 2008. This is incorrect.
    Response: Table 3-4 in the Draft EA should have shown that 54 
Hawaii longline vessels less than 24 m in length engaged in deep-set 
fishing in 2005, 16 in 2006, 61 in 2007, and 84 in 2008. Table 3-4 in 
the Final EA has been adjusted accordingly.

Changes From the Proposed Rule

    As described in the response to comment 1, Sec.  300.24(b)(4)(iii) 
and (iv) were revised to allow longline vessels that shallow-set to 
continue fishing inside and outside of the Convention Area during the 
same fishing trip during a closure provided that no bigeye harvested in 
the Convention Area are retained.
    In the final regulations, Sec.  300.21, ``Definitions'', the 
definition of a ``fishing trip'' was revised to be consistent with the 
definition of a fishing trip used in the regulations to implement the 
WCPFC at Sec.  300.211.
    In the final regulations, Sec.  300.25, ``Eastern Pacific fisheries 
management'', the subparagraphs of paragraph (b)(4) were renumbered for 
clarity.

Classification

    The NMFS Assistant Administrator has determined that this final 
rule is consistent with the Tuna Conventions Act and other applicable 
laws.
    There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day 
delay in effective date for this entire final rule. Compliance with the 
30-delay requirement would be impracticable and contrary to the public 
interest. If we did not waive the 30-day delay, the EPO closure period 
in the purse seine fishery would only be in effect for about half of 
the specified period in 2009, meaning that NMFS would not completely 
satisfy the international obligations of the United States under the 
Convention. This would be contrary to the public interest because 
bigeye tuna are currently subject to overfishing, and this rule has the 
objective of limiting or reducing the fishing effort in U.S. fisheries 
targeting bigeye tuna in the EPO. The United States also had limited 
notice of the need to implement Resolution C-09-01, which was adopted 
ad referendum at the regular annual meeting of the IATTC in June 2009, 
but was not fully adopted by the Commission until Colombia joined the 
consensus on July 15, 2009. Under the Tuna Conventions Act, the United 
States cannot implement decisions made by the Commission unless they 
are adopted by consensus. To help keep the regulated community informed 
of the potential for a purse seine closure in 2009, NMFS advised 
affected purse seine vessel managers and owners of the proposed 
November 21, 2009-January 18, 2010 purse seine closure soon after the 
IATTC Resolution was adopted in July 2009. NMFS also held a public 
hearing on October 21, 2009, and solicited public comments on the 
proposed rule during a 20-day public comment period. In addition, NMFS 
sent the proposed rule directly to purse seine vessel managers and 
owners in October 2009 so they would be aware of, and prepared for, the 
proposed closure period slated to begin on November 21, 2009. 
Therefore, NMFS finds that there is good cause to waive the 30-day 
delay in effectiveness in this circumstance.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the IRFA prepared for the proposed rule (74 FR 53455; 
October 19, 2009) and a summary of the analyses completed to support 
the action. No public comments were received on the IRFA. A copy of the 
IRFA is available from NMFS (see ADDRESSES).
    A description of the action, why it is being considered, and the 
legal basis for this action are contained in the preamble and summary 
section of the proposed rule. 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 Tuna Conventions Act.

[[Page 61050]]

Description of Small Entities to Which the Rule Will Apply

    This rule applies to owners and operators of U.S. longline vessels 
over 24 meters length overall, and U.S. purse seine vessels class size 
4-6 fishing for yellowfin, bigeye, and skipjack tunas in the Convention 
Area. The total number of affected longline vessels is approximated by 
the average number of U.S. large-scale longline vessels that have 
caught bigeye tuna in the EPO in 2005-2008. In each of the years 2005 
through 2008, the number of large-scale longline vessels that caught 
bigeye in the EPO were 18, 8, 18, and 30, respectively. Thus 
approximately 19 longline vessels on average are likely to be affected 
by this proposed rule, if adopted. The majority of the longline vessels 
that may be affected by this proposed rule are based out of Hawaii and 
American Samoa. There is also one longline vessel based out of 
California that would be affected by the proposed rule. These longline 
vessels target bigeye tuna using deep sets, and during certain parts of 
the year, portions of the Hawaii and American Samoa fleet target 
swordfish using shallow sets. As an indication of the size of 
businesses in the fishery, average annual fleet-wide ex-vessel revenues 
during 2005-2007 were about $60 million. Given the number of vessels 
active during that period (127, on average), this indicates an average 
of about $500,000 in annual revenue per vessel, thus all of the 
businesses affected by the longline measures would be considered small 
business entities. It is estimated that even with a large increase in 
the catch rates of bigeye tuna in the EPO the 500 mt catch limit would 
not be reached in any of the applicable years (2009-2011).
    The total number of affected purse seine vessels is approximated by 
the current number of U.S. purse seine vessels class size 4-6 
authorized to fish in the IATTC Convention Area. As of July 2009, there 
were five U.S. purse seine vessels listed on the IATTC Vessel Register; 
two are class size 5 (273 to 363 mt carrying capacity) and three are 
class size 6 (greater than 363 mt carrying capacity). Purse seine 
vessels class size 5 would be considered small business entities 
(revenues equal to or less than $4 million per year). It is estimated 
that from 2004-2008, the majority, if not all, class size 5 U.S. purse 
seine vessels have had revenues of less than $0.5 million per year. 
Class size 6 vessels are categorized as large business entities 
(revenues in excess of $4 million per year). A large purse seine vessel 
typically generates about 4,000 to 5,000 mt of tuna valued at about $4 
to $5 million per year.
    It is estimated that purse seine sets would be prohibited for 16 
percent of the year in 2009 (59 day closure/365 days), 17 percent of 
the year in 2010 (61 day closure/365 days), and 20 percent of the year 
in 2011 (73 day closure/365 days), thus catches would be expected to be 
affected accordingly; however, the affected vessels are capable of 
fishing outside of the closure area (i.e., in the WCPO) during the 
closure period and/or for the remainder of the year, since the fishery 
continues year round, and vessels tend to use relatively short closures 
(such as these) for regular vessel maintenance. It may not be 
economically viable for the class size 5 purse seine vessels to 
register under the SPTT and fish in the WCPO because of their smaller 
carrying capacity and the increased costs associated with fishing far 
from port. At least one of the class size 5 vessels would not be able 
to register to fish in the WCPO because only one license is currently 
available.

Steps Taken To Minimize the Economic Impact on Small Business Entities

    NMFS compared the effects of the proposed rule and various 
alternatives to the proposed rule on small business entities. For the 
longline fishery, an economic impact is not anticipated under the 
preferred alternative since the quota is unlikely to be met in any of 
the applicable years; however, NMFS considered the following 
alternatives. One of the alternatives would have prohibited all 
longline fishing in the Convention Area once the limit is reached, 
rather than just prohibiting the retention, transshipment, and landing 
of bigeye tuna caught in the Convention Area. The other alternative 
would have prohibited deep-set longline fishing in the Convention Area 
once the limit is reached, allowing shallow-set longline fishing in the 
Convention Area to continue, provided that no bigeye tuna and no 
yellowfin tuna caught in the Convention Area are retained, 
transshipped, or landed.
    For the EPO purse seine closure, NMFS considered one alternative 
for each applicable year which differs from the rule in terms of when 
the closure is implemented. However, based on catch data from 2004-
2009, small entities have historically made more tuna landings in the 
EPO during the alternatives' closure periods (July through September) 
compared to the closure period in the rule (November through January). 
Thus, for each year the alternative would not minimize the economic 
impact on small entities compared to the preferred alternative. There 
were no alternatives for the 30-day purse seine closure to the west of 
the Galapagos from 2009-2011 and for the tuna retention measure which 
would accomplish the stated objectives of Resolution C-09-01 and which 
would minimize any significant economic impact on the affected small 
entities.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, one small entity compliance guide was prepared 
for the affected small business entities in the longline fishery, and 
one was prepared for the affected small business entities in the purse 
seine fishery. Copies of this final rule and the compliance guides are 
available from the Southwest Regional Office (see ADDRESSES) and on the 
following Web site: http://swr.nmfs.noaa.gov/. The purse seine guide 
will be sent to all holders of permits for the purse seine fishery that 
are authorized by the IATTC to fish in the Convention Area, and the 
longline guide will be sent to all holders of permits for the longline 
fishery that have large-scale longline vessels. Copies of the guide and 
final rule will also be available upon request.

List of Subjects in 50 CFR Part 300

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

    Dated: November 18, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR part 300, subpart C is 
amended as follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

Subpart C--Eastern Pacific Tuna Fisheries

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

    Authority:  16 U.S.C. 951-961 et seq.


[[Page 61051]]



0
2. In Sec.  300.21, the definition of ``Fishing trip'' is revised and a 
definition of ``Longline gear'' is added, in alphabetical order, to 
read as follows:


Sec.  300.21  Definitions.

* * * * *
    Fishing trip means a period that a fishing vessel spends at sea 
between port visits and during which any fishing occurs.
* * * * *
    Longline gear means a type of fishing gear consisting of a main 
line that exceeds 1 nautical mile in length, is suspended horizontally 
in the water column anchored, floating, or attached to a vessel, and 
from which branch or dropper lines with hooks are attached.
* * * * *

0
3. In Sec.  300.24, paragraph (e) is revised, and new paragraphs (k) 
through (n) are added to read as follows:


Sec.  300.24  Prohibitions.

* * * * *
    (e) Fail to retain any bigeye, skipjack, or yellowfin tuna caught 
by a fishing vessel of the United States of class size 4-6 using purse 
seine gear in the Convention Area, except fish considered unfit for 
human consumption due to reasons other than size, and except on the 
last set of the trip if there is insufficient well capacity to 
accommodate the entire catch.
* * * * *
    (k) Use a fishing vessel over 24 meters in length to retain on 
board, transship, or land bigeye tuna captured by longline gear in the 
Convention Area or to fish in contravention of Sec.  300.25(b)(4)(i) or 
(ii).
    (l) Use a fishing vessel over 24 meters in length to fish in the 
Pacific Ocean using longline gear both inside and outside the 
Convention Area on the same fishing trip in contravention of Sec.  
300.25(b)(4)(iii).
    (m) Fail to stow gear as required in Sec.  300.25(b)(4)(iv) or 
(f)(3).
    (n) Use a fishing vessel of class size 4-6 to fish with purse seine 
gear in the Convention Area in contravention of Sec.  300.25(f)(1) or 
(2).

0
4. In Sec.  300.25, paragraphs (b) and (e)(1) are revised, and 
paragraph (f) is added to read as follows:


Sec.  300.25  Eastern Pacific fisheries management.

* * * * *
    (b) Tuna quotas in the longline fishery in the EPO. (1) Fishing 
seasons for all tuna species begin on January 1 and end either on 
December 31 or when NMFS closes the fishery for a specific species.
    (2) For each of the calendar years 2009, 2010, and 2011, there is a 
limit of 500 metric tons of bigeye tuna that may be captured and landed 
by longline gear in the Convention Area by fishing vessels of the 
United States that are over 24 meters in length.
    (3) NMFS will monitor bigeye tuna landings with respect to the 
limit established under paragraph (b)(2) of this section using data 
submitted in logbooks and other available information. After NMFS 
determines that the limit in any year is expected to be reached by a 
specific future date, and at least 7 calendar days in advance of that 
date, NMFS will publish a notice in the Federal Register announcing 
that the limit has been reached and that the restrictions described in 
paragraph (b)(4) of this section will be in effect through the end of 
the calendar year.
    (4) Once an announcement is made pursuant to paragraph (b)(3) of 
this section, the following restrictions will apply during the period 
specified in the announcement:
    (i) A fishing vessel of the United States over 24 meters in length 
may not be used to retain on board, transship, or land bigeye tuna 
captured by longline gear in the Convention Area, except as follows:
    (A) Any bigeye tuna already on board a fishing vessel upon the 
effective date of the prohibitions may be retained on board, 
transshipped, and/or landed, to the extent authorized by applicable 
laws and regulations, provided that they are landed within 14 days 
after the prohibitions become effective.
    (B) In the case of a vessel that has declared to NMFS, pursuant to 
Sec.  665.23(a) of this title, that the current trip type is shallow-
setting, the 14-day limit is waived, but the number of bigeye tuna 
retained on board, transshipped, or landed must not exceed the number 
on board the vessel upon the effective date of the prohibitions, as 
recorded by the NMFS observer on board the vessel.
    (ii) Bigeye tuna caught by longline gear used on a vessel of the 
United States over 24 meters in length in the Convention Area may not 
be transshipped to a fishing vessel unless that fishing vessel is 
operated in compliance with a valid permit issued under Sec.  660.707 
or Sec.  665.21 of this title.
    (iii) A fishing vessel of the United States over 24 meters in 
length, other than a vessel for which a declaration has been made to 
NMFS, pursuant to Sec.  665.23(a) of this title, that the current trip 
type is shallow-setting, may not be used to fish in the Pacific Ocean 
using longline gear both inside and outside the Convention Area during 
the same fishing trip, with the exception of a fishing trip during 
which the prohibitions were put into effect as announced under 
paragraph (b)(3) of this section.
    (iv) If a fishing vessel of the United States over 24 meters in 
length, other than a vessel for which a declaration has been made to 
NMFS, pursuant to Sec.  665.23(a) of this title, that the current trip 
type is shallow-setting, is used to fish in the Pacific Ocean using 
longline gear outside the Convention Area and the vessel 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; 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.
* * * * *
    (e) Bycatch reduction measures. (1) Bigeye, skipjack, and yellowfin 
tuna caught by a fishing vessel of the United States of class size 4-6 
(more than 182 metric tons carrying capacity) using purse seine gear 
must be retained on board and landed, except fish deemed unfit for 
human consumption for reasons other than size from 0000 hours on 
January 1, 2010 to 2400 hours on December 31, 2011. This requirement 
shall not apply to the last set of a trip if the available well 
capacity is insufficient to accommodate the entire catch.
* * * * *
    (f) Purse seine closures in the EPO. (1) A fishing vessel of the 
United States of class size 4-6 (more than 182 metric tons carrying 
capacity) may not be used to fish with purse seine gear in the 
Convention Area from 0000 hours on November 21, 2009, to 2400 hours on 
January 18, 2010; from 0000 hours on November 18, 2010, to 2400 hours 
on January 18, 2011; and from 0000 hours on November 7, 2011, to 2400 
hours on January 18, 2012, except that a vessel of class size 4 (182 to 
272 metric tons carrying capacity) may make one fishing trip of up to 
30 days duration during the specified closure period, provided that the 
vessel carries an observer of the On-Board Observer Program of the 
Agreement on the International Dolphin Conservation Program during the 
entire fishing trip.
    (2) A fishing vessel of the United States of class size 4-6 (more 
than 182 metric tons carrying capacity) may not be used from 0000 hours 
on September 29 to 2400 hours on October 29 in the years 2010 or 2011 
to fish with purse seine gear within the area bounded at

[[Page 61052]]

the east and west by 96[deg] and 110[deg] W. longitude and bounded at 
the north and south by 4[deg] N. and 3[deg] S. latitude.
    (3) At all times while a vessel is in a Closed Area established 
under paragraphs (f)(1) or (f)(2) of this section, the fishing gear of 
the vessel shall be stowed in a manner as not to be readily available 
for fishing. In particular, the boom shall be lowered as far as 
possible so that the vessel cannot be used for fishing, but so that the 
skiff is accessible for use in emergency situations; the helicopter, if 
any shall be tied down; and launches shall be secured.
[FR Doc. E9-28034 Filed 11-18-09; 4:15 pm]
BILLING CODE 3510-22-P