International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Bigeye Tuna Catch Limits in Longline Fisheries in 2009, 2010, and 2011, 63999-64011 [E9-29072]

Download as PDF 63999 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations NORTH CAROLINA—OZONE [8-Hour standard] Designation a Category/classification Designated area Date 1 * * * * * Haywood and Swain Cos. (Great Smoky NP), NC: Haywood County (part) ............................. This action is effective 12/07/09 ..................... Swain County (part) .................................. This action is effective 12/07/09 ..................... * * * Date 1 Type * Type * * * * Attainment. Attainment. * a Includes Indian Country located in each county or area, except as otherwise specified. date is June 15, 2004, unless otherwise noted. Action Compact Area, effective date deferred until April 15, 2008. 3 November 22, 2004. 1 This 2 Early * * * * * [FR Doc. E9–28967 Filed 12–4–09; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 090130102–91386–02] RIN 0648–AX59 International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Bigeye Tuna Catch Limits in Longline Fisheries in 2009, 2010, and 2011 erowe on DSK5CLS3C1PROD with RULES AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS issues regulations under authority of the Western and Central Pacific Fisheries Convention Implementation Act (WCPFC Implementation Act) to establish a catch limit for bigeye tuna (Thunnus obesus) in the U.S. pelagic longline fisheries in the western and central Pacific Ocean for each of the years 2009, 2010, and 2011. Once the limit of 3,763 metric tons (mt) is reached in any of those years, retaining, transshipping, or landing bigeye tuna caught in the western and central Pacific Ocean will be prohibited for the remainder of the year, with certain exceptions. The limit will not apply to the longline fisheries of American Samoa, Guam, or the Commonwealth of the Northern Mariana Islands (CNMI). This action is necessary for the United States to satisfy its international obligations under the Convention on the Conservation and VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 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 December 12, 2009. ADDRESSES: Copies of supporting documents that were prepared for this final rule, including the regulatory impact review (RIR), environmental assessment (EA), and Supplemental EA, as well as the proposed rule, are available via the Federal e-Rulemaking portal, at http://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 http://www.gpoaccess.gov/fr. Background On July 8, 2009, NMFS published a proposed rule in the Federal Register (74 FR 32521) 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 August 7, 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 PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 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. longline vessels, a Conservation and Management Measure (CMM) adopted by the WCPFC in December 2008, at its Fifth Regular Annual Session: CMM 2008–01, ‘‘Conservation and Management Measure for Bigeye and Yellowfin Tuna in the Western and Central Pacific Ocean.’’ This final rule provides for the timely implementation for U.S. longline fisheries of the annual catch limit for bigeye tuna established in CMM 2008– 01 for each of the years 2009, 2010, and 2011. This final rule does not apply to the longline fisheries of American Samoa, Guam, or the CNMI, as described further below. The preamble to 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 as they relate to longline vessels, and the basis for the proposed regulations. New Requirements This final rule establishes annual bigeye tuna catch limits in U.S. longline fisheries in the Convention Area as follows: Establishment of the Limit CMM 2008–01 includes longline fishery-related provisions specifically applicable to Participating Territories in the WCPFC, which include American Samoa, Guam, and the CNMI. The longline fisheries of Participating Territories are subject to annual bigeye E:\FR\FM\07DER1.SGM 07DER1 erowe on DSK5CLS3C1PROD with RULES 64000 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations tuna catch limits of 2,000 mt. Where the Participating Territory is undertaking responsible development of its domestic fisheries, it is not subject to those annual limits. Given these provisions, and the fact that the 2,000 mt catch level is well in excess of historical bigeye tuna catches in American Samoa, Guam, and the CNMI, NMFS has determined there is no need to establish bigeye tuna catch limits in the longline fisheries of any of the U.S. Participating Territories at this time. Accordingly, the bigeye tuna catch limit established in this final rule applies only to U.S. longline fisheries other than those of American Samoa, Guam, and the CNMI. Under CMM 2008–01, the bigeye tuna limit for U.S. longline fisheries in each of the years 2009, 2010, and 2011 is the amount of bigeye tuna captured in the Convention Area by the Hawaii and west coast longline fleets in 2004 and retained on board, less 10 percent. The amount captured and retained in 2004, which is specified in CMM 2008–01 based on information provided by the United States to the WCPFC, was 4,181 mt. Therefore, the annual limit is 3,763 mt. For the purpose of this final rule, the longline fisheries of the three U.S. Participating Territories are distinguished from the other longline fisheries of the United States based upon a combination of the types of Federal longline fishing permits registered to the fishing vessel and where the bigeye tuna are landed. Specifically, bigeye tuna landed in any of the three U.S. Participating Territories, with certain provisos, will be assigned to the longline fishery of that Participating Territory. Furthermore, bigeye tuna that are captured by a fishing vessel registered for use under a valid American Samoa Longline Limited Access Permit, with certain provisos, will be assigned to the longline fishery of American Samoa. The provisos in both these cases are that: (1) the bigeye tuna must not be captured in the portion of the U.S. exclusive economic zone (EEZ) surrounding the Hawaiian Archipelago, and (2) they must be landed by a U.S. fishing vessel operated in compliance with one of the permits required under the regulations implementing the Fishery Management Plan for the Pelagic Fisheries of the Western Pacific Region developed by the Western Pacific Fishery Management Council (WPFMC) and the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species developed by the Pacific Fishery Management Council; specifically, a permit issued under 50 CFR 660.707 or 665.21. Any VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 bigeye tuna assigned to the longline fisheries of any of the three U.S. Participating Territories as described above will not be subject to the limit. All other bigeye tuna captured by longline gear in the Convention Area by U.S. longline vessels and retained will be subject to the limit. Announcement of the Limit Being Reached 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 will publish a notice in the Federal Register announcing that specific restrictions will be effective on that specific future date until the end of the calendar year. NMFS will publish the notice at least seven calendar days before the effective date of the restrictions to provide fishermen advance notice of the restrictions. NMFS will also endeavor to make publicly available, such as on a web site, regularly updated estimates and/or forecasts of bigeye tuna catches in order to help fishermen plan for the possibility of the limit being reached. Prohibited Activities Once the Limit is Reached Starting on the announced date and extending through the last day of that calendar year, it will be prohibited to use a U.S. fishing vessel to retain on board, transship, or land bigeye tuna captured in the Convention Area by longline gear, except any bigeye tuna already on board a 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. A vessel that has declared to NMFS pursuant to 50 CFR 665.23(a) that the current trip type is shallow-setting is not subject to this 14– day landing restriction. Furthermore, for the same reasons described above in establishing the limit, bigeye tuna captured by longline gear may be retained on board, transshipped, and/or landed if they are captured by a fishing vessel registered for use under a valid American Samoa Longline Limited Access Permit or if they are landed in American Samoa, Guam, or the CNMI, with the following provisos: First, the bigeye tuna must not have been caught in the portion of the EEZ surrounding the Hawaiian Archipelago, and second, they must be landed by a U.S. fishing vessel operated in compliance with a valid permit issued under 50 CFR 660.707 or 665.21. Starting on the announced date and extending through the last day of that calendar year, it will also be prohibited PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 to transship bigeye tuna caught in the Convention Area by longline gear to any vessel other than a U.S. fishing vessel operated in compliance with a valid permit issued under 50 CFR 660.707 or 665.21. These restrictions do not apply to bigeye tuna caught by longline gear outside the Convention Area, such as in the eastern Pacific Ocean. However, to help ensure compliance with the restrictions related to bigeye tuna caught by longline gear in the Convention Area, this final rule establishes two additional, related, prohibitions that will be in effect starting on the announced date and extending through the last day of that calendar year. First, it will be prohibited to fish with longline gear both inside and outside the Convention Area during the same fishing trip, with the exception of a fishing trip that is in progress at the time the announced restrictions go into effect. In that exceptional case, the vessel will 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 vessel is used to fish 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 while the vessel is in the Convention Area. These additional prohibitions do not apply to the following vessels: (1) vessels on declared shallow-setting trips pursuant to pursuant to 50 CFR 665.23(a); or (2) vessels operating for the purposes of this rule as part of the longline fisheries of the U.S. Participating Territories, including vessels registered for use under valid American Samoa Longline Limited Access Permits and vessels landing their bigeye tuna catch in one of the three U.S. Participating Territories, so long as these vessels conduct fishing activities in accordance with the provisos described above. Comments and Responses Comment 1: Fishing restrictions that protect leatherback and loggerhead turtles should not be relaxed. If longline fishing practices in Hawaii push these magnificent animals toward extinction then maybe those practices must be reduced or banned altogether. Response: This rule would not relax any current measures that protect endangered species and marine mammals, and in fact would establish a catch limit where one does not currently exist. E:\FR\FM\07DER1.SGM 07DER1 erowe on DSK5CLS3C1PROD with RULES Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations Comment 2: All longline fishing, which is horribly environmentally destructive and responsible for species decimation, should be banned, and needs to be stopped in all U.S. waters. Response: The purpose of this rule is to implement the longline fisheryrelated aspects of WCPFC CMM 2008– 01, which establishes annual catch limits for the longline fisheries of WCPFC members. Because CMM 2008– 01 does not call for banning longline fishing anywhere, considering such a ban would be beyond the scope of the purpose of and need for this rule. Comment 3: Without catch rates based on sustainability of the bigeye tuna fish stocks bigeye tuna will be overfished; the human population of the earth is growing but the tuna stocks are not; we need strong regulations that are rigorously enforced to protect bigeye tuna; the proposed catch limits for bigeye tuna should be adopted. Response: NMFS acknowledges the comment. Comment 4: The CNMI strongly recommends that the final rule clearly reflect the relevant provisions of CMM 2008–01, specifically, that: (1) the longline fisheries of the CNMI are limited to a catch of 2,000 mt of bigeye tuna each year, from 2009 through 2011; (2) the catch of bigeye tuna in the longline fisheries of the CNMI is not limited if the CNMI is undertaking a program of responsible development; and (3) the CNMI may enter into ‘‘charter, lease or other similar arrangements’’ to utilize its fish catch limit subject to a determination by the CNMI that the vessels involved are an integral part of the domestic fleet of the CNMI. Response: NMFS agrees with the first two statements and has included explanatory remarks in the preamble, noting that consistent with paragraphs 32 and 34 of CMM 2008–01, the longline fisheries of American Samoa, Guam, and the CNMI are not subject to the annual limits established by this rule. NMFS also agrees that the CNMI, as a Participating Territory, may enter into charter, lease or other similar arrangements with U.S. vessels with respect to catches of bigeye tuna, to the extent permitted by law. NMFS, however, does not agree that catches under such agreements must be assigned to the Participating Territory in the United States’ reports to the WCPFC, or that U.S. Participating Territories necessarily determine whether vessels operated under charter are ‘‘integral’’ parts of their domestic fleets. First, paragraph 2 of the CMM states in relevant part, ‘‘For the purposes of these measures, vessels operated under VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 charter, lease or other similar mechanisms by developing islands States and participating territories, as an integral part of their domestic fleet, shall be considered to be vessels of the host island State or territory.’’ Accordingly, paragraph 2 does not mandate the implementation of charters, but merely instructs WCPFC members to attribute the catches of vessels operating under charters to the host State if the vessel is operated as an integral part of its domestic fleet, and to the flag State if it is not. Second, all U.S. longline fisheries on the high seas and in the EEZ are federally managed, and are subject to regulations implementing the Fishery Management Plan for the Pelagic Fisheries of the Western Pacific Region (Pelagics FMP). The provisions concerning annual catch limits for U.S. Participating Territories under CMM 2008–01 are not effective until implemented by appropriate regulations, such as regulations under the WCPFC Implementation Act or regulations under the MagnusonStevens Fishery Conservation and Management Act (MSA) to implement FMP amendments, and until such time do not give rise to an interest in federally managed fish stocks. In this regard, NMFS notes that the WPFMC is currently evaluating a proposal to establish a charter scheme as an amendment to the Pelagics FMP for the purpose of aiding Participating Territories in the responsible development of their fisheries. Comment 5: The CNMI strongly recommends that the final rule reflect that the CNMI, under both WCPFC rules and the MSA, has the authority and responsibility to manage its fisheries to ensure that the catch limits are not exceeded. In this context, the CNMI believes it has the right and authority to enter into a ‘‘charter, lease or other similar arrangement’’ for the utilization of the fish catch limit set by the WCPFC. The CNMI is a ‘‘State’’ under the MSA and has authority to regulate its fisheries beyond its waters as long as the regulations do not conflict with Federal regulations. The CNMI is not aware of any provision of law or regulation that impedes this authority. If NMFS has a different position, it must identify in the final rule the provisions of law or regulation that prevent the CNMI from exercising authority over the catch limits set by the WCPFC. The CNMI insists on its rights in this matter and looks forward to working with the U.S. Government and U.S. fishing interests to develop means to utilize its allocations in a manner that furthers the fishery development goals of the CNMI and PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 64001 benefits the CNMI and other U.S. interests to the maximum extent practicable. Response: NMFS disagrees that either MSA section 306, which applies to the States’ (including Territories’) authority to regulate vessels registered under their laws outside their boundaries, or the Convention, as applied to Participating Territories, creates enforceable rights in the U.S. Participating Territories to implement charter arrangements under CMM 2008–01. Additionally, NMFS is not aware of any existing CNMI law or regulation that applies to fishing vessels operated under charter or other arrangement. As stated above, however, the WPFMC is currently evaluating a proposal to establish a charter scheme as an amendment to the Pelagics FMP for the purpose of aiding Participating Territories in the responsible development of their fisheries. NMFS will continue to work closely with the WPFMC in evaluating the feasibility of such a proposal, consistent with the Pelagics FMP. Comment 6: Under paragraphs 32 and 34 of CMM 2008–01, the U.S. Participating Territories have 2,000 mt bigeye tuna catch limits in their longline fisheries in each of the years 2009–2011, and no bigeye tuna catch limits if undertaking responsible fisheries development. This should be clarified in the final rule. Response: The final rule makes clear that under WCPFC 2008–01 U.S. Participating Territories are not subject to the annual limit applicable to U.S. fisheries, and if undertaking responsible development of their fisheries, are not subject to any WCPFC annual limit. The establishment of annual catch limits for the U.S. Participating Territories is beyond the limited scope of this rule. Comment 7: In part because it may preclude any realistic, near-term opportunities for U.S. Participating Territories to utilize their international allocations, NMFS should discuss and analyze the ramifications of the catch attribution scheme in the proposed rule specifically, the proposal that all longline-caught bigeye tuna landed in Hawaii, even if caught on the high seas or in the portion of the EEZ around American Samoa, would be assigned to the U.S. longline fishery rather than the longline fishery of the Participating Territory. Response: NMFS has analyzed the effects of the proposed rule in accordance with the National Environmental Policy Act (NEPA), the Regulatory Flexibility Act, and Executive Order 12866 in the EA, the IRFA, and the RIR, respectively. As more fully described in the response to E:\FR\FM\07DER1.SGM 07DER1 erowe on DSK5CLS3C1PROD with RULES 64002 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations comment 9, the catch attribution scheme of the proposed rule has undergone minor modifications in this final rule. The impacts of this modified scheme have been analyzed and are provided in a Supplemental EA prepared for this final rule, in the FRFA, and in a revision to the RIR. Comment 8: Currently, the major regional U.S. bigeye tuna market is Honolulu, and to attribute all bigeye tuna landings in Hawaii to the catch limit for the United States would prevent U.S. Participating Territories from entering into domestic charter arrangements with Hawaii longline limited access permitted vessels and eliminate needed funding opportunities for responsible fisheries development. NMFS offers no justification as to why it is relying on its current policy practice of attributing all landings in Hawaii in this manner. This major policy decision may be limiting the legitimate rights of the U.S. Participating Territories in the WCPFC, and NMFS is doing so without discussion. NMFS’ policy, by default, is having a regulatory effect, and therefore, at a minimum should have been thoroughly analyzed in detail in the draft EA. Response: Under the proposed rule, bigeye tuna catches would be attributed based upon the place of landing, which closely aligns with the past practice of NMFS in its reporting to the WCPFC. NMFS believes that fish caught by a Hawaii- or West Coast-based vessel on the high seas or in the portion of the EEZ surrounding the Hawaiian Archipelago and subsequently landed in Hawaii acquire little or no nexus with a Participating Territory, and ordinarily are not attributable to that Territory for reporting purposes to the WCPFC. CMM 2008–01 does provide that when a vessel is operating under a charter, lease, or similar arrangement as an ‘‘integral part’’ of a host Participating Territory’s domestic fleet, it shall be considered a vessel of the host Participating Territory for example, its catch should be attributed to the host Participating Territory’s fishery for WCPFC reporting purposes. Although NMFS does not rule out the possibility that Hawaii- and West Coast-based vessels might operate under charter agreements with U.S. Participating Territories, such arrangements must be consistent with the applicable FMP and U.S. laws and regulations. Moreover, NMFS does not believe that CMM 2008– 01 requires NMFS to assign catches to the chartering Participating Territory without regard to where the fish are caught or landed, particularly where the Participating Territory’s sole connection VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 to the vessel and its catch is the contractual relationship established by the charter agreement. Accordingly, a determination would have to be made by NMFS as to whether such vessels are operating as an ‘‘integral part’’ of the U.S. Participating Territory’s domestic fleet. To conclude otherwise would allow practices that undercut the important conservation objectives of CMM 2008–01. However, NMFS recognizes that in certain circumstances a Participating Territory may acquire a sufficient nexus to a catch even if it is not landed within its borders please see the response to comment 9 for an example. As to the sufficiency of the analysis in the draft EA of the proposed catch attribution scheme, please see the Supplemental EA, where responses to this and other comments on the draft EA are provided. Comment 9: NMFS should modify the proposed rule to be consistent with established practices where catch is attributed to the permit program for the vessel, not the landing location. If a vessel that lands bigeye tuna and other fish species in Hawaii has both a Hawaii Longline Limited Access Permit and an American Samoa Longline Limited Access Permit or any future territorial permits, the catch should be assigned based on a determination of which permit program the vessel was attributing its catches to with respect to the landing involved. Response: NMFS’ practice for the purpose of reporting longline catches (i.e., to U.S. fisheries or to the fisheries of the U.S. Participating Territories) to the WCPFC has been to assign catches according to landing location, not permit type. Under the proposed rule, catches would be assigned based upon the place of landing, since the place of landing acquires the strongest nexus to the catch. However, NMFS acknowledges that in certain cases, considerations other than the landing site may also establish a sufficient nexus with the catch, such that the balance of contacts favors attributing the catch to a place other than where the fish actually has been landed. One such consideration is participation in the American Samoa Longline Limited Access Program. To qualify for a permit, an applicant must establish a documented history of participation in the pelagic longline fishery in the portion of the EEZ around American Samoa, as required by 50 CFR 665.36. NMFS believes that the catch of a vessel with an American Samoa Longline Limited Access Permit may be assigned to the longline fishery of American Samoa for WCPFC reporting purposes, PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 even though it is not landed in American Samoa, provided certain requirements are met. Accordingly, the proposed rule has been modified in this final rule as follows: a vessel that operates with a valid American Samoa Longline Limited Access Permit and that lands its bigeye tuna catch in Hawaii will have its catch assigned to the longline fishery of American Samoa, provided that the catch was not made in the portion of the EEZ surrounding the Hawaiian Archipelago, and further provided that the fish are landed by a U.S. vessel operated in compliance with one of the permits required under the regulations implementing the Pelagics FMP and the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species that is, a permit issued under 50 CFR 660.707 or 665.21. As for treating ‘‘any future territorial permits’’ similarly, the final rule does not do so. If such permit programs are established during the effective period of this final rule, NMFS would consider whether and how to revise the rule. Comment 10: In the final rule to implement the provisions of CMM 2008–01 for U.S. purse seine vessels (74 FR 38544, published August 4, 2009), the potential fishing effort of all 40 licenses authorized under the South Pacific Tuna Treaty (SPTT) was included as a basis for setting the effort limit for purse seine vessels [even though 40 licenses were not issued in the base years specified in the CMM]. However, the last clause of paragraph 7 in CMM 2008–01 explicitly prohibits such expansions for bilateral agreements. NMFS argues that the SPTT is not a bilateral agreement, but in reality, the SPTT is a similar arrangement with the primary objective of the U.S. purse seine fleet gaining access to the exclusive economic zones of Pacific Island countries in lieu of a substantial amount of taxpayer money. NMFS argues that the SPTT grandfathers the existing permits when calculating effort limits, so NMFS should apply the same logic to catch limits for the Hawaii-based longline fleet, where participation has been capped at 164 permits since 1991. Using that methodology, the 4,181 mt of bigeye tuna caught by the 125 Hawaiibased longline vessels active in 2004 would be expanded to represent the 5,486 mt catch that would have been caught if all 164 authorized vessels under the Hawaii longline limited access permit program were active. That baseline of 5,486 mt would then be reduced by the 10 percent required in paragraph 35 of CMM 2008–01 to yield a 2009–2011 annual catch limit of 4,936 E:\FR\FM\07DER1.SGM 07DER1 erowe on DSK5CLS3C1PROD with RULES Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations mt. NMFS should either use this expansion methodology for the U.S. longline fishery or explain its deliberately lopsided allocation of fishery resources among domestic fisheries. There is further disparity in the way NMFS has applied CMM 2008–01 to the purse seine fishery versus the longline fishery by failing to include an alternative for the latter that would utilize a three-year rolling management period, as proposed for purse seine vessels. Response: NMFS believes that its implementation of the purse seine fishery-related provisions of CMM 2008–01 (in the final rule published August 4, 2009; 74 FR 38544; hereafter, ‘‘WCPFC Purse Seine Rule’’) is balanced relative to its implementation of the longline fishery-related aspects of the CMM (in this final rule). The purse seine fishing effort limits established in the WCPFC Purse Seine Rule are fully consistent with CMM 2008–01, which includes a provision (paragraph 7) that states that the determination of levels of fishing effort for the purpose of implementing the CMM shall include, as applicable, fishing rights organized under existing regional arrangements. As explained more fully in the response to comment 7 in the preamble to the WCPFC Purse Seine Rule, the South Pacific Tuna Treaty, the parties to which include the United States and sixteen other States, is one such regional arrangement, and accordingly, the number of U.S. purse seine vessels authorized under that treaty was appropriately used by NMFS as part of the basis for the fishing effort limits established in the WCPFC Purse Seine Rule. In contrast with the purse seine fishery-related provisions of CMM 2008–01, its longline fishery-related provisions, which establish limits on catches, not fishing effort, do not provide for the determination of the required catch limits to include fishing rights organized under existing regional arrangements, or indeed, to include fishing authorizations available under domestic permit programs, as suggested by the commenter. NMFS believes that implementation of the longline bigeye tuna catch limits as suggested by the commenter would not be consistent with CMM 2008–01. With respect to considering a threeyear rolling management period for the purpose of the bigeye tuna catch limits, the purpose of this rule is to make effective a provision of CMM 2008–01 that requires immediate implementation. Although using a three-year rolling management period would be outside the limited scope of VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 this rule, NMFS is not foreclosed from considering an alternative that includes a multi-year bigeye tuna catch limit as part of a future rulemaking. Comment 11: The proposed rule reveals an almost willful lack of consideration of the wider perspective in terms of potential impacts of the bigeye tuna catch limit. By counting landings in Hawaii of all fish caught beyond the portion of the EEZ around Hawaii against the limit for U.S. fisheries, NMFS is precluding any realistic chartering arrangements with the U.S. territories and Hawaii longline vessels. There is no text in CMM 2008– 01 that requires implementation as in the proposed rule. Response: As indicated in the response to comment 7, NMFS believes that the potential impacts of the proposed rule have been appropriately assessed, and further information and analyses are provided in the Supplemental EA, the FRFA, and a revision to the RIR. As recognized in the preamble to the proposed rule, distinguishing the longline fisheries of the U.S. Participating Territories from other U.S. longline fisheries for the purpose of implementing CMM 2008–01 is challenging, but NMFS believes that the proposed rule both offers a reasonable way to resolve those challenges and is fully consistent with CMM 2008–01. Nonetheless, as described in the response to comment 9, the proposed rule has been modified in this final rule with regard to which longline fisheries bigeye tuna catches will be assigned. NMFS acknowledges that this rule would indeed preclude bigeye tuna catches made in the portion of the EEZ surrounding the Hawaiian Archipelago from being assigned to the longline fishery of American Samoa, regardless of whether the vessel that caught the fish was based in American Samoa, registered for use under an American Samoa Longline Limited Access Permit, or involved in a chartering arrangement with American Samoa. Since under the Pelagics FMP, only vessels issued Hawaii Longline Limited Access Permits may harvest fish within the portion of the EEZ surrounding Hawaii, NMFS believes that the Participating Territories have little or no nexus to those fish for purposes of implementing the limit under WCPFC. NMFS believes that the requirements set forth in this rule are necessary and appropriate to implement the catch limit established by the WCPFC, consistent with the objectives of CMM 2008–01, while preserving opportunities for responsible fisheries development by the U.S. Participating Territories. For the reasons PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 64003 given in the response to comment 8, NMFS believes this is appropriate. Comment 12: The proposed regulations are defective in that instead of harmonizing bigeye tuna conservation and the promotion of fisheries of Participating Territories, as is clearly the intent of CMM 2008–01, NMFS seeks to broadly enforce the ten percent reduction in U.S. Pacific longline bigeye tuna catch while establishing insurmountable regulatory barriers to the ability of American Samoa, Guam, and the CNMI to: (1) use their separate 2,000 mt bigeye tuna catch limits; (2) responsibly develop their fisheries subject to no catch limit; and (3) engage vessels by charter, lease, or other similar mechanisms to operate as an integral part of their domestic fleet. Because the proposed regulations are a direct attempt to enforce selected provisions of CMM 2008–01, while rendering useless other applicable provisions of CMM 2008–01, the proposed regulations violate the WCPFC Implementation Act NMFS is not authorized to adopt implementing regulations that circumvent the express provisions of the WCPFC Implementation Act; nor may NMFS pick and choose among those provisions of CMM 2008–01 it likes and dislikes so as to implement one of WCPFC’s laudable purposes (bigeye tuna conservation) while entirely frustrating another clear, important, and laudable purpose (development of bigeye tuna fisheries of Participating Territories through separate or no catch limits). Response: The objectives of CMM 2008–01, as stated in paragraph 1, include maintaining bigeye tuna and yellowfin tuna stocks at levels capable of producing their maximum sustainable yield, and achieving specific fishing mortality rates for those stocks. The CMM does include provisions specific to small island developing State Members and Participating Territories, but those provisions are simply intended to take into account, in accordance with the Convention, the special requirements of small island developing State Members and Participating Territories, in keeping with the objectives of the CMM, as set forth in paragraph 1. NMFS is not choosing to implement only select provisions of CMM 2008–01 (but note that the purse seine-related provisions of the CMM have been implemented in a separate rule). NMFS recognizes that CMM 2008–01 contains provisions specifically applicable to the fisheries of Participating Territories, including separate bigeye tuna catch limits in longline fisheries (or no limits at all if the Participating Territory’s E:\FR\FM\07DER1.SGM 07DER1 erowe on DSK5CLS3C1PROD with RULES 64004 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations domestic fisheries are being developed responsibly). NMFS has determined that no regulatory action is needed at this time to implement those provisions, so this rule is limited in scope to the U.S. longline fisheries that are not fisheries of American Samoa, Guam, or the CNMI. NMFS does not agree that the proposed rule (or this final rule) would prevent any of the three U.S. Participating Territories from utilizing the bigeye tuna catches available to their longline fisheries or from developing those fisheries responsibly. Nothing in this rule prohibits U.S. Participating Territories from entering into charter arrangements with other vessels, provided that they operate consistently with applicable laws and regulations, including those implementing the Pelagics FMP. The proposed rule (and this final rule), would include criteria that would serve to clearly differentiate the longline fisheries of the U.S. Participating Territories from other U.S. longline fisheries for the purpose of reporting bigeye tuna catches to the WCPFC. As indicated in the response to comment 8, NMFS recognizes that the criteria used to differentiate the fisheries would preclude bigeye tuna catches made in the portion of the EEZ surrounding the Hawaiian Archipelago from being assigned to the longline fisheries of the U.S. Participating Territories, regardless of whether the vessel that caught the fish was based in one of the U.S. Participating Territories, registered for use under an American Samoa Longline Limited Access Permit, or involved in a chartering arrangement with one of the U.S. Participating Territories. However, NMFS believes that differentiating the longline fisheries in this way is necessary to satisfy the provisions of CMM 2008–01 that are being implemented in this rule. Comment 13: Discussions have taken place between the Hawaii Longline Association (HLA) and NMFS and the U.S. Department of State regarding American Samoa’s intent to enter into a charter agreement to engage longline vessels [that do not necessarily have American Samoa Longline Limited Access Permits and that would not necessarily land their catch in American Samoa] to fish for bigeye tuna as an integral part of American Samoa’s domestic fleet. [A copy of this charter agreement, signed by both parties, was submitted to NMFS with this comment.] In these discussions, NMFS has insisted that existing provisions of the MSA and its implementing regulations conflict with and prevent U.S. Participating Territories from exercising their rights under CMM 2008–01 to either fish VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 under the separate catch limit (or no catch limit) allocated to them by the WCPFC, and to enter into domestic charter agreements under the express provisions of paragraph 2 of CMM 2008–01. However, NMFS has yet to identify any specific provisions of the MSA or its implementing regulations that establish a conflict. Response: NMFS does not believe that the MSA or its implementing regulations prevent the longline fisheries of the U.S. Participating Territories from catching bigeye tuna within the constraints imposed by CMM 2008–01 or from entering into domestic charter arrangements with U.S. vessels. NMFS, however, acknowledges that the rule would not permit catch to be assigned to the U.S. Participating Territories for WCPFC reporting purposes unless the catch satisfies the nexus requirements established in the rule. As explained above, paragraph 2 of CMM 2008–01 does not mandate the implementation of charters, but merely instructs WCPFC members to attribute the catches of vessels operating under charters to the host State if the vessel is operated as an integral part of its domestic fleet, and to the flag State if it is not. In addition, all U.S. longline fisheries on the high seas and in the EEZ are federally managed, and are subject to regulations implementing the Pelagics FMP. The provisions concerning annual catch limits for U.S. Participating Territories under CMM 2008–01 are not effective until implemented by appropriate regulations, such as regulations under the WCPFC Implementation Act or regulations under the MSA to implement FMP amendments. Until such time, the U.S. Participating Territories do not have an interest in federally managed fish stocks caught on the high seas or in the EEZ that may be assigned by charter agreement or other arrangement. As stated above, the WPFMC is currently evaluating a proposal to establish a charter scheme as an amendment to the FMP for the purpose of aiding Participating Territories in the responsible development of their fisheries. In establishing a catch limit for the other U.S. longline fisheries, the final rule, by necessity, establishes clear criteria to distinguish those fisheries from the longline fisheries of the U.S. Participating Territories. NMFS recognizes that those distinctions will effectively limit what can be considered the longline fisheries of the U.S. Participating Territories for the purpose of CMM 2008–01. Yet meaningful limits are clearly needed to ensure that the important conservation objectives of PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 CMM 2008–01 are achieved. For example, a bigeye tuna that is caught on the high seas by a vessel without an American Samoa Longline Limited Access Permit and landed in Hawaii would not be considered a bigeye tuna caught in the American Samoa longline fishery. This is because a vessel operated under such circumstances would have little or no connection to American Samoa, would not be subject to its laws and regulations, and the fish would not be subject to American Samoa’s management authority. Comment 14: It is express and clear that the WCPFC intended to establish separate and different bigeye tuna catch limits, if any, for American Samoa, Guam, and the CNMI. Accordingly, the ten percent reduction catch limit applicable to U.S. Pacific longline fisheries is not applicable to American Samoa, Guam, and the CNMI. Nothing under the MSA addresses how bigeye tuna fishing rights granted under international law to those territories may or must be implemented, or by whom. Additionally, the WCPFC intended to promote longline bigeye tuna fisheries development in Participating Territories, including through the use of charters, leases, and other similar mechanisms. Accordingly, the goal of reducing bigeye tuna catch [sic] is not applicable to Participating Territories, and instead, the WCPFC has established through CMM 2008–01 that bigeye tuna fisheries development is the higher priority and guiding principle for Participating Territories. Response: NMFS agrees that in its adoption of CMM 2008–01, the WCPFC intended to establish separate and different bigeye tuna catch limits for each Participating Territory, and that the ten percent reduction in longline catches of bigeye tuna applicable to the other U.S. longline fisheries is not applicable to the longline fisheries of American Samoa, Guam, or the CNMI. Indeed, the proposed rule (and this final rule) would not establish any catch limits for the longline fisheries of the three U.S. Participating Territories. With respect to the intent of the WCPFC as expressed in CMM 2008–01, NMFS does not agree that development of the bigeye tuna fisheries of Participating Territories is an objective of CMM 2008–01, or that the WCPFC intended that such development be accomplished through the use of charter, leases, or other similar mechanisms. As indicated in the response to comment 12, the objectives of CMM 2008–01 are explicit in paragraph 1 of the CMM and are limited to maintaining bigeye tuna and yellowfin tuna stocks at specified levels E:\FR\FM\07DER1.SGM 07DER1 erowe on DSK5CLS3C1PROD with RULES Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations and achieving specific fishing mortality rates for those stocks. The provisions of CMM 2008–01 that relate to the use of charters, leases, and similar arrangements relate only to how the activities of vessels operating under such arrangements, such as their catch and fishing effort, are to be accounted for for example, whether their catches should be attributed to the flag State or the host State. The CMM does not in any way require the development or use of such arrangements. Although CMM 2008–01 includes provisions specific to the fisheries of Participating Territories, NMFS does not agree that those provisions establish bigeye tuna fisheries development in the Participating Territories as a priority or guiding principle. Comment 15: The provisions of CMM 2008–01 are clear and the United States is obligated to either implement all of its provisions or the Secretary of State must take action under the WCPFC Implementation Act to disapprove CMM 2008–01. In the former case, there is nothing in existing U.S. law that impairs or impedes NMFS’ ability to fully implement the CMM, and in doing so, to harmonize existing MSA provisions with new requirements necessitated by international convention. The proposed regulations, however, would not achieve such harmony, and instead would establish barriers specifically designed to block American Samoa, Guam, and the CNMI from fishing under their separate bigeye tuna catch limits, developing their bigeye tuna fisheries, and entering into domestic charter agreements to accomplish those purposes. [The commenter included with the comment a copy of a ‘‘Domestic Charter Agreement’’ between American Samoa and Hawaii Longline Association, signed by representatives of both parties.] Response: See responses to comments 12 and 13. Comment 16: Under the proposed rule, NMFS proposes to assign bigeye tuna catches based on the area of catch and the area of landing, regardless of the authority under which the vessel was fishing, a proposal that NMFS asserts ‘‘closely aligns’’ with past practice. This proposal, which is specifically designed to block American Samoa, Guam, and the CNMI from exercising their international fishing rights under CMM 2008–01, is contrary to CMM 2008–01, based on factual inaccuracies, and illogical. Specifically, nothing about ‘‘past practice’’ under unrelated provisions of the MSA informs implementation of rights provided for in CMM 2008–01. Nothing remotely suggests that past practices of the VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 United States were the premise for any provision of CMM 2008–01, nor does the plain language of CMM 2008–01 suggest that the specially negotiated and recognized rights of Participating Territories should be constrained by the location of catch or the landing location of the domestic fleet CMM 2008–01 grants each Participating Territory, at a minimum, the right for its longline fisheries to catch up to 2,000 mt of bigeye tuna within the Convention Area without regard to landing location. Even if past practice were relevant to implementation of CMM 2008–01, which it is not, there is no practice of or logic to attributing catch based on landing location, and there is extensive precedent for ignoring catch location as a determining factor in allocation of catch limits. For example, landings in California by vessels with Hawaii Longline Limited Access Permits have been attributed to the Hawaii fisheries and not to California fisheries, and landings in Cook Islands by vessels with American Samoa Longline Limited Access Permits have been attributed to American Samoa fisheries. Furthermore, if existing MSA regulations are determinative in interpreting unrelated international law, which they are not, what matters is flag or permit under which the vessel was fishing, not just the area of catch or the area of landing. Response: NMFS believes that past practices of NMFS or the United States are relevant in the implementation of CMM 2008–01 and that they were the premise for certain provisions of CMM 2008–01. The longline bigeye tuna catch limits mandated under CMM 2008–01 refer to specific baseline catches, from which catches in 2009–2012 are to be reduced by specified amounts. In the case of the longline fisheries of the United States, the baseline is the catch in 2004, as specified in Attachment F to the CMM. Attachment F indicates that the baseline catch for the United States is 4,181 mt. Attachment F also indicates that the baseline catch for American Samoa is 185 mt (Attachment F does not include baseline catches for the longline fisheries of Guam or the CNMI because no bigeye tuna catches in those fisheries in the relevant years had been reported to the WCPFC by the United States). These baseline catch levels specified in Attachment F of CMM 2008–01 are as reported by the United States to the WCPFC and were dependent on NMFS’ past practice in assigning catches. As indicated in the preamble to the proposed rule, that practice has been to assign catches according to where the fish are landed. As to whether the expectations of Participating Territories should be PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 64005 constrained under CMM 2008–01 by the location of catch or the landing location of the domestic fleet, NMFS believes that the issue in question is how the longline fisheries of the U.S. Participating Territories are distinguished from the other longline fisheries of the United States. CMM 2008–01 does not speak to this question. As explained in the preamble to the proposed rule, NMFS proposed to distinguish them based on where the fish are landed, as in NMFS’ past practice in reporting longline bigeye tuna catches to the WCPFC, with some modifications. Those modifications were intended to ensure that the rule does not lead to shifts in fishing patterns and practices that would undermine the objectives of CMM 2008– 01. With regard to attributing to Hawaii landings made in California by the Hawaii-based longline fleet, NMFS may indeed have counted catches as asserted by the commenter in certain contexts, and may continue to do so. However, in the context of reporting longline bigeye tuna catches of U.S. fishing vessels to the WCPFC, NMFS has only reported longline bigeye tuna catches for the United States as a whole and for each of the Participating Territories it has not attributed catches to specific states within the United States (other than the U.S. Participating Territories), and there is no reason to do so since the WCPFC’s conservation and management measures apply to the United States as a whole. In the case of a U.S. vessel landing its catch in a foreign nation, NMFS may or may not assign the catch to the fisheries of the United States (or of a U.S. Participating Territory), depending foremost on the context (e.g., reporting to the WCPFC versus other purposes), and then on such factors as the location of the catch and the status of the vessel with respect to the foreign nation. In short, NMFS assigns catch in context. The attribution scheme established in this rule is solely for the purpose of assigning catches in the context of the WCPFC and particularly for the implementation of the relevant provisions of CMM 2008–01. With respect to the importance of the type of permit under which a vessel is fishing, NMFS agrees that in the case of an American Samoa Longline Limited Access Permit, it is relevant in the context of WCPFC-mandated catch limits, because the issuance of a permit establishes a connection between the vessel and the longline fishery of American Samoa. That is, only persons with a documented history of fishing for pelagic species with longline gear in the portion of the EEZ around American E:\FR\FM\07DER1.SGM 07DER1 erowe on DSK5CLS3C1PROD with RULES 64006 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations Samoa are eligible for American Samoa Longline Limited Access Permits. This documented history establishes a sufficient nexus to American Samoa for purposes of catch attribution. Accordingly, as indicated in the response to comment 8, NMFS has modified the catch attribution scheme in this final rule such that any bigeye tuna captured by a fishing vessel registered for use under a valid American Samoa Longline Limited Access Permit would be assigned to the longline fishery of American Samoa regardless of where the fish are landed, provided that: (1) the fish are not caught in the portion of the EEZ surrounding the Hawaiian Archipelago, and (2) they are landed by a U.S. vessel operated in compliance with one of the permits issued under 50 CFR 660.707 or 665.21. Comment 17: The reason for the proposed prohibition of transshipments of bigeye tuna caught in the Convention Area by longline gear to any vessel other than a U.S. fishing vessel operated in compliance with a valid permit issued under 50 CFR 660.707 or 665.21 is understood. The Hawaii Longline Association trusts that the United States will ensure that all WCPFC members are equally attentive to controls to prevent transshipments that allow disguising of the flag of the vessel that caught the fish and thereby circumvent the limits of CMM 2008–01. However, there is no reason to control the areas being fished when the bigeye tuna limit is reached. Also, it is not clear that prohibiting fishing in both the Convention Area and the EPO [during the same trip] or that requiring stowing of gear in the Convention Area during a trip in which fishing was done in the EPO enhances the monitoring and enforcement of the WCPFC catch limit. NMFS must more clearly explain what is gained by these proposed measures or eliminate these unnecessary provisions. Response: As a part of U.S. delegations to meetings of the WCPFC, NMFS will work to ensure that all WCPFC members are implementing the provisions of CMM 2008–01 as required. On controlling the areas being fished after the limit is reached, under the proposed rule (and this final rule), it would be prohibited to retain, transship, or land bigeye tuna caught by longline gear in the portion of the EEZ surrounding the Hawaiian Archipelago, even by a vessel with an American Samoa Longline Limited Access Permit. This is one part of the criteria to distinguish the longline fishery of American Samoa from the other longline fisheries of the United States. The rationale for this criterion is that fishing in the portion of the EEZ VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 surrounding the Hawaii Archipelago for which a Hawaii Longline Limited Access Permit is required creates too attenuated a nexus with the longline fishery of American Samoa to be considered part of that fishery. Once the limit is reached, the provisions to: (1) prohibit fishing in the Convention Area and the EPO 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 EPO, 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 EPO do not make any longline sets in the Convention Area and retain bigeye tuna from those sets after the limit established by this rule is reached. However, NMFS acknowledges that these two prohibitions should not apply to two categories of longline vessels, specifically: (1) vessels on declared shallow-setting trips pursuant to pursuant to 50 CFR 665.23(a), since they do not target bigeye tuna and they are subject to 100 percent observer coverage; and (2) vessels operating for the purposes of this rule as part of the longline fisheries of the U.S. Participating Territories, since they are not subject to the fishing restrictions established by this rulemaking once the annual limit is reached. Accordingly, the proposed rule has been slightly modified in this final rule such that the two prohibitions do not apply to these categories of vessels. Comment 18: The proposed regulations would do far more harm than good by: (1) contravening the intent of the WCPFC, (2) impeding desperately needed economic opportunities in American Samoa, Guam, and the CNMI, (3) seriously damaging the domestic Pacific longline bigeye tuna fishery to the benefit of foreign fisheries without a detectable conservation benefit, (4) seriously impeding the adoption of regulations currently being worked on by the WPFMC that would fully and fairly implement all the provisions of CMM 2008–01, and (5) causing serious conservation harm to other protected species through transferred effects. We recommend that NMFS withdraw the proposed regulations and defer adoption of regulations implementing CMM 2008–01 until the WPFMC has analyzed alternatives and developed implementing fishery management plan amendments pursuant to the MSA. PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 Response: With regard to the benefits and costs of the proposed rule and to the second, third, and fifth points, NMFS’ findings on the benefits, costs, and impacts of the proposed rule and this final rule can be found in the EA and the Supplemental EA, the IRFA and FRFA, and the RIR. NMFS has selected the alternative that NMFS believes appropriately balances benefits and adverse impacts while satisfying the obligations of the United States to implement the relevant longline bigeye tuna catch limits established by the WCPFC in CMM 2008–01. With regard to the first point the proposed rule contravening the intent of the WCPFC, see the response to comment 12. NMFS does not agree that adoption of the proposed regulations would impede the adoption of regulations being worked on by the WPFMC the fourth point raised in the comment. This rule will not in any way impede or prevent the WPFMC from evaluating or recommending additional management measures under the MSA process. NMFS believes that this final rule is needed to provide for the timely implementation of the annual catch limit for bigeye tuna established by the WCPFC for longline fisheries, which is effective starting in 2009. NMFS will continue to work with the WPFMC to the extent that it develops and recommends other measures related to implementation of CMM 2008–01. Comment 19: 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: The bigeye tuna catch limit established by the WCPFC and implemented through this rule applies to bigeye tuna captured by all fishing activities of the Hawaii and west coastbased longline fleets. Bigeye tuna caught and retained in both the shallow-set (swordfish-directed) and deep-set sectors would be counted against the limit, and the activities of both sectors would be similarly restricted after the limit is reached. NMFS received several comments that questioned the adequacy of the analysis in the draft EA. NMFS prepared a Supplemental EA that contains detailed responses to these comments. Changes from the Proposed Rule As explained in the responses to comments 9 and 16, above, and after E:\FR\FM\07DER1.SGM 07DER1 erowe on DSK5CLS3C1PROD with RULES Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations giving full consideration to public comments received on the proposed rule, NMFS has decided to make a minor change from the proposed rule such that bigeye tuna caught by longline gear in the Convention Area by fishing vessels with American Samoa Longline Limited Access Permits would not be counted against the bigeye tuna catch limit established in this rule, provided that: (1) the fish are not caught in the portion of the EEZ surrounding the Hawaiian Archipelago, and (2) they are landed by a U.S. vessel operated in compliance with one of the permits issued under 50 CFR 660.707 or 665.21. Accordingly, § 300.224, ‘‘Longline fishing restrictions,’’ is revised to include paragraphs (c) and (e)(iii) that were not included in the proposed rule, and other paragraphs have been renumbered accordingly. In § 300.224, ‘‘Longline fishing restrictions,’’ paragraphs (e)(3) and (e)(4) are revised to clarify that the two prohibitions intended to help ensure compliance with the main restrictions triggered by the bigeye tuna catch limit being reached no fishing with longline gear both inside and outside the Convention Area during the same fishing trip and the gear stowage requirements for vessels that fish outside the Convention Area and then enter the Convention Area do not apply to: (1) vessels on declared shallowsetting trips pursuant to 50 CFR 665.23(a), since they do not target bigeye tuna and they are subject to 100 percent observer coverage; and (2) vessels operating for the purposes of this rule as part of the longline fisheries of the U.S. Participating Territories, since they are not subject to the main fishing restrictions that would be triggered by the limit being reached, including vessels registered for use under valid American Samoa Longline Limited Access Permits and vessels landing their bigeye tuna catch in one of the three U.S. Participating Territories, so long as these vessels conduct fishing activities in accordance with the provisos necessary for them to be considered part of the longline fisheries of the U.S. Participating Territories. Furthermore, with respect to vessels on declared shallow-setting trips, the requirement that the number of bigeye tuna retained on board, transshipped, or landed not exceed the number on board upon the effective date of the prohibitions, as recorded by the NMFS observer, is no longer deemed necessary and has been removed from paragraph (e)(1)(i) of § 300.224. In § 300.211, ‘‘Definitions,’’ the definition of ‘‘fishing trip’’ has been omitted because since publication of the VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 proposed rule, a definition for ‘‘fishing trip’’ has been established in a separate rulemaking (final rule published August 4, 2009; 74 FR 38544). Although the established definition is not identical to the one included in the proposed rule, it is functionally the same, so there is no need to revise the definition in this final rule. 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 establish an effective date less than 30 days after date of publication of this final rule. Compliance with the 30–delay requirement would be impracticable and contrary to the public interest, since NMFS would be unable to ensure that the bigeye tuna catch limit mandated by the WCPFC for 2009 is not exceeded, and would consequently be frustrated in promulgating the regulations needed to satisfy the international obligations of the United States under the Convention. National Environmental Policy Act Pursuant to the requirement of the National Environmental Policy Act (NEPA), NMFS prepared an EA that analyzed the effects of the proposed rule on the human environment. In the EA, NMFS analyzed the potential environmental effects of the proposed rule, as well as three alternatives to the proposed rule, including the no-action, or baseline, alternative. NMFS issued the EA in draft form for public review and comment in conjunction with the proposed rule. Comments on the draft EA stated that the EA contained insufficient information and inadequate analysis to assess the potential environmental impacts of the proposed rule and suggested that an Environmental Impact Statement (EIS) should be prepared. The EA also contained analysis of another action a rule implementing provisions of CMM 2008–01 for the U.S. purse seine fishery operating in the WCPFC’s area of competence and a final version of the EA (July 2009 version) was issued in conjunction with the final rule for that other action on August 4, 2009. In order to provide detailed responses to the comments regarding the EA’s analysis of the proposed rule for the bigeye tuna catch limit, NMFS prepared a Supplemental EA. The Supplemental EA also includes analysis of another action alternative, which is PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 64007 the alternative implemented in this final rule. Overall, the expected impacts on bigeye tuna and other living marine resources from the alternative implemented in this final rule are expected to be minor and generally beneficial, because it would implement a catch limit where one does not currently exist. The alternative implemented in this final rule is similar to the proposed rule in that it would prohibit the retention, landing, and transshipment of bigeye tuna by U.S. longline vessels in the Convention Area once the catch limit is reached. However, under this alternative, bigeye tuna caught by vessels registered for use under an American Samoa Longline Limited Access Permit would be considered to be fish caught as part of the American Samoa longline fishery regardless of where the fish are landed, and thus, would not be subject to the catch limit established by the rule, so long as they are caught outside the portion of the EEZ surrounding the Hawaiian Archipelago and are landed by a vessel with a valid permit issued under 50 CFR 660.707 or 50 CFR 665.21. The alternative implemented in this final rule is less restrictive on fishermen than the proposed rule or other action alternatives analyzed in the EA. However, the impacts on the human environment from the final rule would be similar to the impacts from the proposed rule or other action alternatives. The overall impacts would be minor for the following reasons: the duration of the rule would be limited to three years, so unless similar or more restrictive actions are taken in the future, conditions would likely rebound to conditions similar to those under the no-action, or baseline, alternative; and the final rule would likely not cause substantial changes to the fishing practices and patterns of the affected fleets. However, unlike the proposed rule, the catch of bigeye tuna outside the portion of the EEZ surrounding the Hawaiian Archipelago of vessels with both a Hawaii Longline Limited Access Permit and an American Samoa Longline Limited Access Permit would not be counted against the limit. Thus, vessels with an American Samoa Longline Limited Access Permit that currently fish inside the portion of the EEZ surrounding the Hawaiian Archipelago would likely shift some of their effort to outside the portion of the EEZ surrounding the Hawaiian Archipelago, where their catch would not be counted against the limit. Under the final rule, then, the catch limit would likely be reached later in the year, and the total catch of bigeye tuna E:\FR\FM\07DER1.SGM 07DER1 erowe on DSK5CLS3C1PROD with RULES 64008 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations would be greater than under the proposed rule or the other action alternatives. Vessels with both a Hawaii Longline Limited Access Permit and an American Samoa Longline Limited Access Permit may also respond to this final rule by increasing their fishing effort to meet market demand for bigeye tuna landed in Hawaii after the catch limit is reached, when fewer vessels may be landing bigeye tuna in Hawaii, again, leading to greater bigeye tuna catches than under the other action alternatives. So, the final rule would be more similar to the no-action alternative than would the proposed rule or any of the other action alternatives. However, since there would be some operational constraints imposed on the fishing activities of U.S. longline vessels once the catch limit is reached, the final rule would be expected to result in a total annual bigeye tuna catch that is less than the catch that would be expected under the no-action alternative. The final rule could provide a small, beneficial contribution to the cumulative environmental impacts experienced by the affected environment. Other future actions for the conservation and management of HMS could cause similar beneficial effects. Together with the effects of those actions, the cumulative impacts on the affected environment from the final rule could be greater than if the final rule were implemented in isolation. The overall cumulative, or additive, impacts on the affected environment from the final rule, other present actions, and all reasonably foreseeable future actions would likely be beneficial. However, some other reasonably foreseeable future actions actions that are not a result of this final rule could cause some adverse effects that would counteract these beneficial impacts. These reasonably foreseeable future actions could involve changes in ocean conditions and potential changes to current fishing operations caused by the activities of fishermen. Based on the analysis in the EA and Supplemental EA, NMFS concluded that there will be no significant impact on the human environment as a result of this rule and an EIS need not be prepared. 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. Copies of the EA and Supplemental EA are available from NMFS (see ADDRESSES). VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 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, Bigeye Tuna Catch Limits in Longline Fisheries in 2009, 2010, and 2011. The FRFA incorporates the IRFA prepared for the proposed rule (74 FR 32521; July 8, 2009; available from NMFS see ADDRESSES). The analysis 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. vessels used for fishing using longline gear in the Convention Area, except those that are part of the longline fleets of American Samoa, Guam, and the CNMI. The total number of affected vessels is approximated by the number of vessels with Hawaii Longline Limited Access Permits (issued under 50 CFR 665.21). There are 164 such permits available. During the period 2006–2008 the number of vessels permitted ranged from 121 to 140. The number of vessels actually permitted as of October 2009 was 131. Owners and operators of U.S. longline vessels based on the U.S. west coast would also be affected by this proposed rule, but based on the inactivity of that fleet in the Convention Area since 2005, it is expected that very few, if any, such vessels would be affected. The Hawaii longline fleet targets bigeye tuna using deep sets, and during certain parts of the year, portions of the fleet target swordfish using shallow sets. In each of the years 2005 through 2008, the estimated numbers of Hawaii longline vessels that fished were 124, 127, 129, and 128, respectively. Of those vessels, the numbers that engaged in deepsetting were 124, 127, 129, and 127, and PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 the numbers that engaged in shallowsetting were 31, 35, 27, and 24, respectively. The numbers that did both were 31, 35, 27, and 23, respectively. Most of the fleet’s fishing effort has traditionally been in the Convention Area, but fishing has also taken place to the east of the Convention Area. 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 $0.5 million in annual revenue per vessel. Therefore, NMFS has determined that all vessels in the fishery are small entities based on the Small Business Administration’s definition of a small fish harvester (i.e., gross annual receipts of less than $4.0 million). Statement of any Changes Made to the Proposed Rule as a Result of Public Comment In response to public comment that fish catches should be assigned among fisheries based on which permit program the vessel was operating under rather than the landing location, NMFS has made a change from the proposed rule such that both landing location and permit type are taken into account when assigning catches. The change is described in more detail in the following section. 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 with respect to U.S. longline vessels) while minimizing economic impacts on small entities. Upon publication of the proposed rule, three action alternatives had been identified and considered (in addition to the no-action alternative). One alternative would prohibit longline fishing in the Convention Area once the limit is reached, rather than just prohibiting the retention, landing, and transshipment of bigeye tuna caught by longline in the Convention Area. Another alternative would prohibit deep-set longline fishing 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 are retained, landed, or transshipped. The third alternative, which would be implemented under the proposed rule (hereafter, ‘‘proposed rule alternative’’), would allow both shallow-set and deep- E:\FR\FM\07DER1.SGM 07DER1 erowe on DSK5CLS3C1PROD with RULES Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations set longline fishing in the Convention Area to continue after the limit is reached, provided that no bigeye tuna are retained, landed, or transshipped. As described in the IRFA, among those three alternatives, the proposed rule alternative would result in the least adverse economic impacts on small entities, as it would leave open greater alternative fishing opportunities in the event the catch limit is reached. For that reason, the proposed rule alternative was preferred by NMFS over the other two action alternatives. Since publication of the proposed rule, and based in part on public comments received on the proposed rule, NMFS has identified an additional alternative, which is being implemented in this final rule. This new alternative (hereafter, ‘‘final rule alternative’’) is the same as the proposed rule alternative except in the way that the longline fisheries of the U.S. Participating Territories (the catches of which will not be subject to the limit) are distinguished from the other U.S. longline fisheries. Under the final rule alternative, bigeye tuna caught by vessels with American Samoa Longline Limited Access Permits will be considered to be fish caught in the longline fishery of American Samoa, regardless of where the fish are landed (provided they are not caught in the portion of the EEZ surrounding the Hawaiian Archipelago and are landed by a vessel with a valid permit issued under 50 CFR 660.707 or 50 CFR 665.21). Such bigeye tuna catches will not be subject to the limit. Because of the way bigeye tuna catches will be assigned under the final rule alternative, the economic impacts on affected small entities are expected to be less adverse than under the proposed rule alternative or either of the other two action alternatives, as follows: First, unlike under the proposed rule alternative or either of the other two action alternatives, bigeye tuna catches (outside the portion of the EEZ surrounding the Hawaiian Archipelago) of vessels with both a Hawaii Longline Limited Access Permit and an American Samoa Longline Limited Access Permit (‘‘dual permit vessels’’) that are landed somewhere other than in one of the U.S. Participating Territories (e.g., Hawaii) will generally not be subject to the limit. Therefore, the likelihood of the limit being reached in a given year is lower, and the likely date of the limit being reached in a given year is later than under the proposed rule alternative or either of the other two action alternatives. The economic impacts on all affected small entities will VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 consequently be somewhat less adverse in comparison with those of the proposed rule alternative and the other two action alternatives (as described in the IRFA). The degree to which the impacts will be less adverse cannot be determined because of the difficulty in predicting the responses of fishermen to the requirements of the final rule. Second, under the final rule alternative, businesses that operate dual permit vessels will be impacted substantially less than will other participants in the Hawaii longline fleet, by virtue of their history of participation in the American Samoa Longline Limited Access program. Once the limit is reached in a given year, operators of dual permit vessels would continue to be able to land in Hawaii bigeye tuna that are caught in the Convention Area, provided that they are not caught in the portion of the EEZ surrounding the Hawaiian Archipelago. Their inability to fish in the portion of the EEZ surrounding the Hawaiian Archipelago would constrain their operational flexibility and thus be costly, but those costs would likely be offset by benefits stemming from the fact that no other longline vessels would be able to catch bigeye tuna in the Convention Area that can be landed in Hawaii. Specifically, because the supply of bigeye tuna to the Hawaii market would be constrained after the limit is reached, the price of bigeye tuna would likely respond by increasing, and operators of dual permit vessels would benefit from such increases (as would businesses operating vessels without dual permits that land in Hawaii bigeye tuna caught outside the Convention Area). As of October 2009 there were 11 dual permit vessels. There have been 10–12 dual permit vessels in each of the three full years that the American Samoa Longline Limited Access program has been in place (2006–2008). Since the benefits of owning and operating a dual permit vessel will act as an incentive for fishing businesses to obtain both permits for their vessels, the number of dual permit vessels could increase as a result of the final rule. The maximum possible number of dual permit vessels is 60, which is the maximum number of American Samoa Longline Limited Access Permits that are available. Given the substantial cost of obtaining a Hawaii Longline Limited Access Permit (such permits are transferable on the open market and typically sell for tens of thousands of dollars) and the strict eligibility requirements for obtaining an American Samoa Longline Limited Access Permit (only persons with a documented history of fishing for PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 64009 pelagic species with longline gear in the portion of the EEZ around American Samoa are eligible for such permits), it is unlikely that the number of dual permit vessels will reach as high as 60 during the period of effectiveness of this final rule. In sum, the economic impacts of this final rule on business entities that own and operate dual permit vessels are expected to be much less adverse than the impacts of the proposed rule alternative or either of the other two action alternatives, and it is possible that they will be beneficial. The three action alternatives other than the final rule alternative were rejected by NMFS because they would be expected to result in more severe adverse economic impacts on affected entities than would the final rule alternative. The alternative of taking no action at all was rejected because it would fail to accomplish the objective of the WCPFC Implementation Act or satisfy the international obligations of the United States as a Contracting Party to the Convention. The final rule alternative would accomplish the objective of the WCPFC Implementation Act and satisfy the international obligations of the United States with respect to implementing WCPFC CMM 2008–01 for U.S. longline vessels, and do so with minimal adverse economic impacts on small entities, and for these reasons was adopted in the final rule. Comments and Responses No public comments were received on the IRFA. 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, a small entity compliance guide (the guide) has been prepared. The guide will be sent to all current holders of longline permits issued under 50 CFR 665.21. Copies of this final rule and the guide are available from NMFS (see ADDRESSES) and are available at: http:// www.fpir.noaa.gov/IFD/ ifdldocumentsldata.html. E:\FR\FM\07DER1.SGM 07DER1 64010 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations inside and outside the Convention Area on the same fishing trip in contravention of § 300.224(e)(3). (dd) Fail to stow longline gear as required in § 300.224(e)(4). ■ 4. A new § 300.224 is added to read as follows: List of Subjects in 50 CFR Part 300 Administrative practice and procedure, Fish, Fisheries, Fishing, Marine resources, Reporting and recordkeeping requirements, Treaties. Dated: December 2, 2009. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. § 300.224 For the reasons set out in the preamble, 50 CFR part 300 is amended as follows: ■ PART 300—INTERNATIONAL FISHERIES REGULATIONS Subpart O—Western and Central Pacific Fisheries for Highly Migratory Species 1. The authority citation for 50 CFR part 300, subpart O, continues to read as follows: ■ Authority: 16 U.S.C. 6901 et seq. 2. In § 300.211, definitions of ‘‘Hawaiian Archipelago’’ and ‘‘Longline gear’’ are added, in alphabetical order, to read as follows: ■ § 300.211 Definitions. * * * * * Hawaiian Archipelago means the Main and Northwestern Hawaiian Islands, including Midway Atoll. * * * * * 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 either anchored, floating, or attached to a vessel, and from which branch or dropper lines with hooks are attached; except that, within the protected species zone, longline gear means a type of fishing gear consisting of a main line of any length that is suspended horizontally in the water column either anchored, floating, or attached to a vessel, and from which branch or dropper lines with hooks are attached, where ‘‘protected species zone’’ is used as defined at § 665.12 of this title. * * * * * ■ 3. In § 300.222, paragraphs (bb), (cc) and (dd) are added to read as follows: § 300.222 Prohibitions. erowe on DSK5CLS3C1PROD with RULES * * * * * (bb) Use a fishing vessel to retain on board, transship, or land bigeye tuna captured by longline gear in the Convention Area or to fish in contravention of § 300.224(e)(1) or (e)(2). (cc) Use a fishing vessel to fish in the Pacific Ocean using longline gear both VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 Longline fishing restrictions. (a) For each of the years 2009, 2010, and 2011, there is a limit of 3,763 metric tons of bigeye tuna that may be captured in the Convention Area by longline gear and retained on board by fishing vessels of the United States during the calendar year. (b) Bigeye tuna landed in American Samoa, Guam, or the Commonwealth of the Northern Mariana Islands will not be counted against the limits established under paragraph (a) of this section, provided that: (1) The bigeye tuna were not caught in the portion of the EEZ surrounding the Hawaiian Archipelago; and (2) The bigeye tuna were landed by a fishing vessel operated in compliance with a valid permit issued under § 660.707 or § 665.21 of this title. (c) Bigeye tuna caught by a vessel registered for use under a valid American Samoa Longline Limited Access Permit issued under § 665.21(c) of this title will not be counted against the limits established under paragraph (a) of this section, provided that: (1) The bigeye tuna were not caught in the portion of the EEZ surrounding the Hawaiian Archipelago; and (2) The bigeye tuna were landed by a fishing vessel operated in compliance with a valid permit issued under § 660.707 or § 665.21 of this title. (d) NMFS will monitor retained catches of bigeye tuna with respect to the limit established under paragraph (a) of this section in each of the calendar years using data submitted in logbooks and other available information. After NMFS determines that the limit in any of the applicable years is expected to be reached by a specific future date, and at least seven calendar days in advance of that specific future date, NMFS will publish a notice in the Federal Register announcing that specific prohibitions will be in effect starting on that specific future date and ending at the end of the calendar year. (e) Once an announcement is made pursuant to paragraph (d) of this section, the following restrictions will apply during the period specified in the announcement: (1) A fishing vessel of the United States may not be used to retain on board, transship, or land bigeye tuna captured by longline gear in the Convention Area, except as follows: PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 (i) 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. The 14– day landing requirement does not apply to a vessel that has declared to NMFS, pursuant to § 665.23(a) of this title, that the current trip type is shallow-setting. (ii) Bigeye tuna captured by longline gear may be retained on board, transshipped, and/or landed if they are landed in American Samoa, Guam, or the Commonwealth of the Northern Mariana Islands, provided that: (A) The bigeye tuna were not caught in the portion of the EEZ surrounding the Hawaiian Archipelago; (B) Such retention, transshipment, and/or landing is in compliance with applicable laws and regulations; and (C) The bigeye tuna are landed by a fishing vessel operated in compliance with a valid permit issued under § 660.707 or § 665.21 of this title. (iii) Bigeye tuna captured by longline gear may be retained on board, transshipped, and/or landed if they are caught by a vessel registered for use under a valid American Samoa Longline Limited Access Permit issued under § 665.21(c) of this title, provided that: (A) The bigeye tuna were not caught in the portion of the EEZ surrounding the Hawaiian Archipelago; (B) Such retention, transshipment, and/or landing is in compliance with applicable laws and regulations; and (C) The bigeye tuna are landed by a fishing vessel operated in compliance with a valid permit issued under § 660.707 or § 665.21 of this title. (2) Bigeye tuna caught by longline gear 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. (3) A fishing vessel of the United States, other than a vessel meeting the requirements of paragraphs (e)(1)(ii) or (e)(1)(iii) of this section or 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 prohibitions were put into effect as announced under paragraph (d) of this section, in which case the bigeye tuna on board the vessel may be retained on board, transshipped, and/or landed, to the extent authorized by E:\FR\FM\07DER1.SGM 07DER1 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations applicable laws and regulations, provided that they are landed within 14 days after the prohibitions become effective. (4) If a fishing vessel of the United States, other than a vessel meeting the requirements of paragraphs (e)(1)(ii) or (e)(1)(iii) of this section or 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, while in the Convention Area, 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. [FR Doc. E9–29072 Filed 12–4–09; 8:45 am] BILLING CODE 3510–22–S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 0809251266–81485–02] RIN 0648–XS93 Fisheries of the Northeastern United States; Scup Fishery; Commercial Quota Harvested for 2009 Winter II Period erowe on DSK5CLS3C1PROD with RULES AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; closure. SUMMARY: NMFS announces the closure of the scup commercial coastwide fishery from Maine through North Carolina for the remainder of the Winter II Period. Regulations governing the scup fishery require publication of this notification to advise the coastal states from Maine through North Carolina that this quota has been harvested and to advise Federal vessel permit holders and Federal dealer permit holders that no commercial quota is available for landing scup in these states. Federally permitted commercial vessels may not land scup in these states for the remainder of the 2009 Winter II quota period. DATES: Effective 0001 hours December 9, 2009, through December 31, 2009. FOR FURTHER INFORMATION CONTACT: Sarah Heil, Fishery Management Specialist, (978) 281–9257. SUPPLEMENTARY INFORMATION: Regulations governing the scup fishery are found at 50 CFR part 648. The regulations at § 648.121 require the Regional Administrator to monitor the commercial scup quota for each quota period and, based upon dealer reports, state data, and other available information, to determine when the commercial quota for a period has been harvested. NMFS is required to publish a notification in the Federal Register advising and notifying commercial vessels and dealer permit holders that, effective upon a specific date, the scup commercial quota has been harvested and no commercial quota is available for landing scup for the remainder of the Summer Period. Based upon recent projections, the Regional Administrator has determined that the Federal PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 64011 commercial quota of 1,349,751 lb (612 mt) for the 2009 Winter II Period will be fully harvested by or before December 31, 2009. To maintain the integrity of the 2009 Winter II Period quota by avoiding or minimizing quota overages, the commercial scup fishery will close for the remainder of the Winter II Period (through December 31, 2009) in Federal waters, effective as of the date specified above (see DATES). Section 648.4(b) provides that Federal scup moratorium permit holders agree, as a condition of the permit, not to land scup in any state after NMFS has published a notification in the Federal Register stating that the commercial quota for the period has been harvested and that no commercial quota for scup is available. Therefore, effective 0001 hours, Wednesday, December 9, 2009, further landings of scup by vessels holding Federal scup moratorium permits are prohibited through December 31, 2009. Effective 0001 hours, Wednesday, December 9, 2009, federally permitted dealers are also advised that they may not purchase scup from federally permitted vessels that land in coastal states from Maine through North Carolina for the remainder of the Winter II Period (through December 31, 2009). The 2010 Winter I Period for commercial scup harvest will open on January 1, 2010. Classification This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 et seq. Dated: December 1, 2009. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E9–29064 Filed 12–4–09; 8:45 am] BILLING CODE 3510–22–S E:\FR\FM\07DER1.SGM 07DER1

Agencies

[Federal Register Volume 74, Number 233 (Monday, December 7, 2009)]
[Rules and Regulations]
[Pages 63999-64011]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-29072]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 090130102-91386-02]
RIN 0648-AX59


International Fisheries; Western and Central Pacific Fisheries 
for Highly Migratory Species; Bigeye Tuna Catch Limits in Longline 
Fisheries 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 issues regulations under authority of the Western and 
Central Pacific Fisheries Convention Implementation Act (WCPFC 
Implementation Act) to establish a catch limit for bigeye tuna (Thunnus 
obesus) in the U.S. pelagic longline fisheries in the western and 
central Pacific Ocean for each of the years 2009, 2010, and 2011. Once 
the limit of 3,763 metric tons (mt) is reached in any of those years, 
retaining, transshipping, or landing bigeye tuna caught in the western 
and central Pacific Ocean will be prohibited for the remainder of the 
year, with certain exceptions. The limit will not apply to the longline 
fisheries of American Samoa, Guam, or the Commonwealth of the Northern 
Mariana Islands (CNMI). 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 December 12, 2009.

ADDRESSES: Copies of supporting documents that were prepared for this 
final rule, including the regulatory impact review (RIR), environmental 
assessment (EA), and Supplemental EA, as well as the proposed rule, are 
available via the Federal e-Rulemaking portal, at http://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 http://www.gpoaccess.gov/fr.

Background

    On July 8, 2009, NMFS published a proposed rule in the Federal 
Register (74 FR 32521) 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 August 7, 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. longline vessels, a Conservation and Management Measure (CMM) 
adopted by the WCPFC in December 2008, at its Fifth Regular Annual 
Session: CMM 2008-01, ``Conservation and Management Measure for Bigeye 
and Yellowfin Tuna in the Western and Central Pacific Ocean.''
    This final rule provides for the timely implementation for U.S. 
longline fisheries of the annual catch limit for bigeye tuna 
established in CMM 2008-01 for each of the years 2009, 2010, and 2011. 
This final rule does not apply to the longline fisheries of American 
Samoa, Guam, or the CNMI, as described further below.
    The preamble to 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 as they relate to longline vessels, and 
the basis for the proposed regulations.

New Requirements

    This final rule establishes annual bigeye tuna catch limits in U.S. 
longline fisheries in the Convention Area as follows:

Establishment of the Limit

    CMM 2008-01 includes longline fishery-related provisions 
specifically applicable to Participating Territories in the WCPFC, 
which include American Samoa, Guam, and the CNMI. The longline 
fisheries of Participating Territories are subject to annual bigeye

[[Page 64000]]

tuna catch limits of 2,000 mt. Where the Participating Territory is 
undertaking responsible development of its domestic fisheries, it is 
not subject to those annual limits. Given these provisions, and the 
fact that the 2,000 mt catch level is well in excess of historical 
bigeye tuna catches in American Samoa, Guam, and the CNMI, NMFS has 
determined there is no need to establish bigeye tuna catch limits in 
the longline fisheries of any of the U.S. Participating Territories at 
this time. Accordingly, the bigeye tuna catch limit established in this 
final rule applies only to U.S. longline fisheries other than those of 
American Samoa, Guam, and the CNMI.
    Under CMM 2008-01, the bigeye tuna limit for U.S. longline 
fisheries in each of the years 2009, 2010, and 2011 is the amount of 
bigeye tuna captured in the Convention Area by the Hawaii and west 
coast longline fleets in 2004 and retained on board, less 10 percent. 
The amount captured and retained in 2004, which is specified in CMM 
2008-01 based on information provided by the United States to the 
WCPFC, was 4,181 mt. Therefore, the annual limit is 3,763 mt.
    For the purpose of this final rule, the longline fisheries of the 
three U.S. Participating Territories are distinguished from the other 
longline fisheries of the United States based upon a combination of the 
types of Federal longline fishing permits registered to the fishing 
vessel and where the bigeye tuna are landed. Specifically, bigeye tuna 
landed in any of the three U.S. Participating Territories, with certain 
provisos, will be assigned to the longline fishery of that 
Participating Territory. Furthermore, bigeye tuna that are captured by 
a fishing vessel registered for use under a valid American Samoa 
Longline Limited Access Permit, with certain provisos, will be assigned 
to the longline fishery of American Samoa. The provisos in both these 
cases are that: (1) the bigeye tuna must not be captured in the portion 
of the U.S. exclusive economic zone (EEZ) surrounding the Hawaiian 
Archipelago, and (2) they must be landed by a U.S. fishing vessel 
operated in compliance with one of the permits required under the 
regulations implementing the Fishery Management Plan for the Pelagic 
Fisheries of the Western Pacific Region developed by the Western 
Pacific Fishery Management Council (WPFMC) and the Fishery Management 
Plan for U.S. West Coast Fisheries for Highly Migratory Species 
developed by the Pacific Fishery Management Council; specifically, a 
permit issued under 50 CFR 660.707 or 665.21. Any bigeye tuna assigned 
to the longline fisheries of any of the three U.S. Participating 
Territories as described above will not be subject to the limit. All 
other bigeye tuna captured by longline gear in the Convention Area by 
U.S. longline vessels and retained will be subject to the limit.

Announcement of the Limit Being Reached

    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 will publish a notice in the Federal Register announcing 
that specific restrictions will be effective on that specific future 
date until the end of the calendar year. NMFS will publish the notice 
at least seven calendar days before the effective date of the 
restrictions to provide fishermen advance notice of the restrictions. 
NMFS will also endeavor to make publicly available, such as on a web 
site, regularly updated estimates and/or forecasts of bigeye tuna 
catches in order to help fishermen plan for the possibility of the 
limit being reached.

Prohibited Activities Once the Limit is Reached

    Starting on the announced date and extending through the last day 
of that calendar year, it will be prohibited to use a U.S. fishing 
vessel to retain on board, transship, or land bigeye tuna captured in 
the Convention Area by longline gear, except any bigeye tuna already on 
board a 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. A 
vessel that has declared to NMFS pursuant to 50 CFR 665.23(a) that the 
current trip type is shallow-setting is not subject to this 14-day 
landing restriction. Furthermore, for the same reasons described above 
in establishing the limit, bigeye tuna captured by longline gear may be 
retained on board, transshipped, and/or landed if they are captured by 
a fishing vessel registered for use under a valid American Samoa 
Longline Limited Access Permit or if they are landed in American Samoa, 
Guam, or the CNMI, with the following provisos: First, the bigeye tuna 
must not have been caught in the portion of the EEZ surrounding the 
Hawaiian Archipelago, and second, they must be landed by a U.S. fishing 
vessel operated in compliance with a valid permit issued under 50 CFR 
660.707 or 665.21.
    Starting on the announced date and extending through the last day 
of that calendar year, it will also be prohibited to transship bigeye 
tuna caught in the Convention Area by longline gear to any vessel other 
than a U.S. fishing vessel operated in compliance with a valid permit 
issued under 50 CFR 660.707 or 665.21.
    These restrictions do not apply to bigeye tuna caught by longline 
gear outside the Convention Area, such as in the eastern Pacific Ocean. 
However, to help ensure compliance with the restrictions related to 
bigeye tuna caught by longline gear in the Convention Area, this final 
rule establishes two additional, related, prohibitions that will be in 
effect starting on the announced date and extending through the last 
day of that calendar year. First, it will be prohibited to fish with 
longline gear both inside and outside the Convention Area during the 
same fishing trip, with the exception of a fishing trip that is in 
progress at the time the announced restrictions go into effect. In that 
exceptional case, the vessel will 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 vessel is 
used to fish 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 while the vessel 
is in the Convention Area. These additional prohibitions do not apply 
to the following vessels: (1) vessels on declared shallow-setting trips 
pursuant to pursuant to 50 CFR 665.23(a); or (2) vessels operating for 
the purposes of this rule as part of the longline fisheries of the U.S. 
Participating Territories, including vessels registered for use under 
valid American Samoa Longline Limited Access Permits and vessels 
landing their bigeye tuna catch in one of the three U.S. Participating 
Territories, so long as these vessels conduct fishing activities in 
accordance with the provisos described above.

Comments and Responses

    Comment 1: Fishing restrictions that protect leatherback and 
loggerhead turtles should not be relaxed. If longline fishing practices 
in Hawaii push these magnificent animals toward extinction then maybe 
those practices must be reduced or banned altogether.
    Response: This rule would not relax any current measures that 
protect endangered species and marine mammals, and in fact would 
establish a catch limit where one does not currently exist.

[[Page 64001]]

    Comment 2: All longline fishing, which is horribly environmentally 
destructive and responsible for species decimation, should be banned, 
and needs to be stopped in all U.S. waters.
    Response: The purpose of this rule is to implement the longline 
fishery-related aspects of WCPFC CMM 2008-01, which establishes annual 
catch limits for the longline fisheries of WCPFC members. Because CMM 
2008-01 does not call for banning longline fishing anywhere, 
considering such a ban would be beyond the scope of the purpose of and 

need for this rule.
    Comment 3: Without catch rates based on sustainability of the 
bigeye tuna fish stocks bigeye tuna will be overfished; the human 
population of the earth is growing but the tuna stocks are not; we need 
strong regulations that are rigorously enforced to protect bigeye tuna; 
the proposed catch limits for bigeye tuna should be adopted.
    Response: NMFS acknowledges the comment.
    Comment 4: The CNMI strongly recommends that the final rule clearly 
reflect the relevant provisions of CMM 2008-01, specifically, that: (1) 
the longline fisheries of the CNMI are limited to a catch of 2,000 mt 
of bigeye tuna each year, from 2009 through 2011; (2) the catch of 
bigeye tuna in the longline fisheries of the CNMI is not limited if the 
CNMI is undertaking a program of responsible development; and (3) the 
CNMI may enter into ``charter, lease or other similar arrangements'' to 
utilize its fish catch limit subject to a determination by the CNMI 
that the vessels involved are an integral part of the domestic fleet of 
the CNMI.
    Response: NMFS agrees with the first two statements and has 
included explanatory remarks in the preamble, noting that consistent 
with paragraphs 32 and 34 of CMM 2008-01, the longline fisheries of 
American Samoa, Guam, and the CNMI are not subject to the annual limits 
established by this rule. NMFS also agrees that the CNMI, as a 
Participating Territory, may enter into charter, lease or other similar 
arrangements with U.S. vessels with respect to catches of bigeye tuna, 
to the extent permitted by law. NMFS, however, does not agree that 
catches under such agreements must be assigned to the Participating 
Territory in the United States' reports to the WCPFC, or that U.S. 
Participating Territories necessarily determine whether vessels 
operated under charter are ``integral'' parts of their domestic fleets. 
First, paragraph 2 of the CMM states in relevant part, ``For the 
purposes of these measures, vessels operated under charter, lease or 
other similar mechanisms by developing islands States and participating 
territories, as an integral part of their domestic fleet, shall be 
considered to be vessels of the host island State or territory.'' 
Accordingly, paragraph 2 does not mandate the implementation of 
charters, but merely instructs WCPFC members to attribute the catches 
of vessels operating under charters to the host State if the vessel is 
operated as an integral part of its domestic fleet, and to the flag 
State if it is not. Second, all U.S. longline fisheries on the high 
seas and in the EEZ are federally managed, and are subject to 
regulations implementing the Fishery Management Plan for the Pelagic 
Fisheries of the Western Pacific Region (Pelagics FMP). The provisions 
concerning annual catch limits for U.S. Participating Territories under 
CMM 2008-01 are not effective until implemented by appropriate 
regulations, such as regulations under the WCPFC Implementation Act or 
regulations under the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA) to implement FMP amendments, and until such time 
do not give rise to an interest in federally managed fish stocks. In 
this regard, NMFS notes that the WPFMC is currently evaluating a 
proposal to establish a charter scheme as an amendment to the Pelagics 
FMP for the purpose of aiding Participating Territories in the 
responsible development of their fisheries.
    Comment 5: The CNMI strongly recommends that the final rule reflect 
that the CNMI, under both WCPFC rules and the MSA, has the authority 
and responsibility to manage its fisheries to ensure that the catch 
limits are not exceeded. In this context, the CNMI believes it has the 
right and authority to enter into a ``charter, lease or other similar 
arrangement'' for the utilization of the fish catch limit set by the 
WCPFC. The CNMI is a ``State'' under the MSA and has authority to 
regulate its fisheries beyond its waters as long as the regulations do 
not conflict with Federal regulations. The CNMI is not aware of any 
provision of law or regulation that impedes this authority. If NMFS has 
a different position, it must identify in the final rule the provisions 
of law or regulation that prevent the CNMI from exercising authority 
over the catch limits set by the WCPFC. The CNMI insists on its rights 
in this matter and looks forward to working with the U.S. Government 
and U.S. fishing interests to develop means to utilize its allocations 
in a manner that furthers the fishery development goals of the CNMI and 
benefits the CNMI and other U.S. interests to the maximum extent 
practicable.
    Response: NMFS disagrees that either MSA section 306, which applies 
to the States' (including Territories') authority to regulate vessels 
registered under their laws outside their boundaries, or the 
Convention, as applied to Participating Territories, creates 
enforceable rights in the U.S. Participating Territories to implement 
charter arrangements under CMM 2008-01. Additionally, NMFS is not aware 
of any existing CNMI law or regulation that applies to fishing vessels 
operated under charter or other arrangement. As stated above, however, 
the WPFMC is currently evaluating a proposal to establish a charter 
scheme as an amendment to the Pelagics FMP for the purpose of aiding 
Participating Territories in the responsible development of their 
fisheries. NMFS will continue to work closely with the WPFMC in 
evaluating the feasibility of such a proposal, consistent with the 
Pelagics FMP.
    Comment 6: Under paragraphs 32 and 34 of CMM 2008-01, the U.S. 
Participating Territories have 2,000 mt bigeye tuna catch limits in 
their longline fisheries in each of the years 2009-2011, and no bigeye 
tuna catch limits if undertaking responsible fisheries development. 
This should be clarified in the final rule.
    Response: The final rule makes clear that under WCPFC 2008-01 U.S. 
Participating Territories are not subject to the annual limit 
applicable to U.S. fisheries, and if undertaking responsible 
development of their fisheries, are not subject to any WCPFC annual 
limit. The establishment of annual catch limits for the U.S. 
Participating Territories is beyond the limited scope of this rule.
    Comment 7: In part because it may preclude any realistic, near-term 
opportunities for U.S. Participating Territories to utilize their 
international allocations, NMFS should discuss and analyze the 
ramifications of the catch attribution scheme in the proposed rule 
specifically, the proposal that all longline-caught bigeye tuna landed 
in Hawaii, even if caught on the high seas or in the portion of the EEZ 
around American Samoa, would be assigned to the U.S. longline fishery 
rather than the longline fishery of the Participating Territory.
    Response: NMFS has analyzed the effects of the proposed rule in 
accordance with the National Environmental Policy Act (NEPA), the 
Regulatory Flexibility Act, and Executive Order 12866 in the EA, the 
IRFA, and the RIR, respectively. As more fully described in the 
response to

[[Page 64002]]

comment 9, the catch attribution scheme of the proposed rule has 
undergone minor modifications in this final rule. The impacts of this 
modified scheme have been analyzed and are provided in a Supplemental 
EA prepared for this final rule, in the FRFA, and in a revision to the 
RIR.
    Comment 8: Currently, the major regional U.S. bigeye tuna market is 
Honolulu, and to attribute all bigeye tuna landings in Hawaii to the 
catch limit for the United States would prevent U.S. Participating 
Territories from entering into domestic charter arrangements with 
Hawaii longline limited access permitted vessels and eliminate needed 
funding opportunities for responsible fisheries development. NMFS 
offers no justification as to why it is relying on its current policy 
practice of attributing all landings in Hawaii in this manner. This 
major policy decision may be limiting the legitimate rights of the U.S. 
Participating Territories in the WCPFC, and NMFS is doing so without 
discussion. NMFS' policy, by default, is having a regulatory effect, 
and therefore, at a minimum should have been thoroughly analyzed in 
detail in the draft EA.
    Response: Under the proposed rule, bigeye tuna catches would be 
attributed based upon the place of landing, which closely aligns with 
the past practice of NMFS in its reporting to the WCPFC. NMFS believes 
that fish caught by a Hawaii- or West Coast-based vessel on the high 
seas or in the portion of the EEZ surrounding the Hawaiian Archipelago 
and subsequently landed in Hawaii acquire little or no nexus with a 
Participating Territory, and ordinarily are not attributable to that 
Territory for reporting purposes to the WCPFC. CMM 2008-01 does provide 
that when a vessel is operating under a charter, lease, or similar 
arrangement as an ``integral part'' of a host Participating Territory's 
domestic fleet, it shall be considered a vessel of the host 
Participating Territory for example, its catch should be attributed to 
the host Participating Territory's fishery for WCPFC reporting 
purposes. Although NMFS does not rule out the possibility that Hawaii- 
and West Coast-based vessels might operate under charter agreements 
with U.S. Participating Territories, such arrangements must be 
consistent with the applicable FMP and U.S. laws and regulations. 
Moreover, NMFS does not believe that CMM 2008-01 requires NMFS to 
assign catches to the chartering Participating Territory without regard 
to where the fish are caught or landed, particularly where the 
Participating Territory's sole connection to the vessel and its catch 
is the contractual relationship established by the charter agreement. 
Accordingly, a determination would have to be made by NMFS as to 
whether such vessels are operating as an ``integral part'' of the U.S. 
Participating Territory's domestic fleet. To conclude otherwise would 
allow practices that undercut the important conservation objectives of 
CMM 2008-01. However, NMFS recognizes that in certain circumstances a 
Participating Territory may acquire a sufficient nexus to a catch even 
if it is not landed within its borders please see the response to 
comment 9 for an example.
    As to the sufficiency of the analysis in the draft EA of the 
proposed catch attribution scheme, please see the Supplemental EA, 
where responses to this and other comments on the draft EA are 
provided.
    Comment 9: NMFS should modify the proposed rule to be consistent 
with established practices where catch is attributed to the permit 
program for the vessel, not the landing location. If a vessel that 
lands bigeye tuna and other fish species in Hawaii has both a Hawaii 
Longline Limited Access Permit and an American Samoa Longline Limited 
Access Permit or any future territorial permits, the catch should be 
assigned based on a determination of which permit program the vessel 
was attributing its catches to with respect to the landing involved.
    Response: NMFS' practice for the purpose of reporting longline 
catches (i.e., to U.S. fisheries or to the fisheries of the U.S. 
Participating Territories) to the WCPFC has been to assign catches 
according to landing location, not permit type. Under the proposed 
rule, catches would be assigned based upon the place of landing, since 
the place of landing acquires the strongest nexus to the catch. 
However, NMFS acknowledges that in certain cases, considerations other 
than the landing site may also establish a sufficient nexus with the 
catch, such that the balance of contacts favors attributing the catch 
to a place other than where the fish actually has been landed. One such 
consideration is participation in the American Samoa Longline Limited 
Access Program. To qualify for a permit, an applicant must establish a 
documented history of participation in the pelagic longline fishery in 
the portion of the EEZ around American Samoa, as required by 50 CFR 
665.36. NMFS believes that the catch of a vessel with an American Samoa 
Longline Limited Access Permit may be assigned to the longline fishery 
of American Samoa for WCPFC reporting purposes, even though it is not 
landed in American Samoa, provided certain requirements are met. 
Accordingly, the proposed rule has been modified in this final rule as 
follows: a vessel that operates with a valid American Samoa Longline 
Limited Access Permit and that lands its bigeye tuna catch in Hawaii 
will have its catch assigned to the longline fishery of American Samoa, 
provided that the catch was not made in the portion of the EEZ 
surrounding the Hawaiian Archipelago, and further provided that the 
fish are landed by a U.S. vessel operated in compliance with one of the 
permits required under the regulations implementing the Pelagics FMP 
and the Fishery Management Plan for U.S. West Coast Fisheries for 
Highly Migratory Species that is, a permit issued under 50 CFR 660.707 
or 665.21. As for treating ``any future territorial permits'' 
similarly, the final rule does not do so. If such permit programs are 
established during the effective period of this final rule, NMFS would 
consider whether and how to revise the rule.
    Comment 10: In the final rule to implement the provisions of CMM 
2008-01 for U.S. purse seine vessels (74 FR 38544, published August 4, 
2009), the potential fishing effort of all 40 licenses authorized under 
the South Pacific Tuna Treaty (SPTT) was included as a basis for 
setting the effort limit for purse seine vessels [even though 40 
licenses were not issued in the base years specified in the CMM]. 
However, the last clause of paragraph 7 in CMM 2008-01 explicitly 
prohibits such expansions for bilateral agreements. NMFS argues that 
the SPTT is not a bilateral agreement, but in reality, the SPTT is a 
similar arrangement with the primary objective of the U.S. purse seine 
fleet gaining access to the exclusive economic zones of Pacific Island 
countries in lieu of a substantial amount of taxpayer money. NMFS 
argues that the SPTT grandfathers the existing permits when calculating 
effort limits, so NMFS should apply the same logic to catch limits for 
the Hawaii-based longline fleet, where participation has been capped at 
164 permits since 1991. Using that methodology, the 4,181 mt of bigeye 
tuna caught by the 125 Hawaii-based longline vessels active in 2004 
would be expanded to represent the 5,486 mt catch that would have been 
caught if all 164 authorized vessels under the Hawaii longline limited 
access permit program were active. That baseline of 5,486 mt would then 
be reduced by the 10 percent required in paragraph 35 of CMM 2008-01 to 
yield a 2009-2011 annual catch limit of 4,936

[[Page 64003]]

mt. NMFS should either use this expansion methodology for the U.S. 
longline fishery or explain its deliberately lopsided allocation of 
fishery resources among domestic fisheries.
    There is further disparity in the way NMFS has applied CMM 2008-01 
to the purse seine fishery versus the longline fishery by failing to 
include an alternative for the latter that would utilize a three-year 
rolling management period, as proposed for purse seine vessels.
    Response: NMFS believes that its implementation of the purse seine 
fishery-related provisions of CMM 2008-01 (in the final rule published 
August 4, 2009; 74 FR 38544; hereafter, ``WCPFC Purse Seine Rule'') is 
balanced relative to its implementation of the longline fishery-related 
aspects of the CMM (in this final rule). The purse seine fishing effort 
limits established in the WCPFC Purse Seine Rule are fully consistent 
with CMM 2008-01, which includes a provision (paragraph 7) that states 
that the determination of levels of fishing effort for the purpose of 
implementing the CMM shall include, as applicable, fishing rights 
organized under existing regional arrangements. As explained more fully 
in the response to comment 7 in the preamble to the WCPFC Purse Seine 
Rule, the South Pacific Tuna Treaty, the parties to which include the 
United States and sixteen other States, is one such regional 
arrangement, and accordingly, the number of U.S. purse seine vessels 
authorized under that treaty was appropriately used by NMFS as part of 
the basis for the fishing effort limits established in the WCPFC Purse 
Seine Rule. In contrast with the purse seine fishery-related provisions 
of CMM 2008-01, its longline fishery-related provisions, which 
establish limits on catches, not fishing effort, do not provide for the 
determination of the required catch limits to include fishing rights 
organized under existing regional arrangements, or indeed, to include 
fishing authorizations available under domestic permit programs, as 
suggested by the commenter. NMFS believes that implementation of the 
longline bigeye tuna catch limits as suggested by the commenter would 
not be consistent with CMM 2008-01.
    With respect to considering a three-year rolling management period 
for the purpose of the bigeye tuna catch limits, the purpose of this 
rule is to make effective a provision of CMM 2008-01 that requires 
immediate implementation. Although using a three-year rolling 
management period would be outside the limited scope of this rule, NMFS 
is not foreclosed from considering an alternative that includes a 
multi-year bigeye tuna catch limit as part of a future rulemaking.
    Comment 11: The proposed rule reveals an almost willful lack of 
consideration of the wider perspective in terms of potential impacts of 
the bigeye tuna catch limit. By counting landings in Hawaii of all fish 
caught beyond the portion of the EEZ around Hawaii against the limit 
for U.S. fisheries, NMFS is precluding any realistic chartering 
arrangements with the U.S. territories and Hawaii longline vessels. 
There is no text in CMM 2008-01 that requires implementation as in the 
proposed rule.
    Response: As indicated in the response to comment 7, NMFS believes 
that the potential impacts of the proposed rule have been appropriately 
assessed, and further information and analyses are provided in the 
Supplemental EA, the FRFA, and a revision to the RIR.
    As recognized in the preamble to the proposed rule, distinguishing 
the longline fisheries of the U.S. Participating Territories from other 
U.S. longline fisheries for the purpose of implementing CMM 2008-01 is 
challenging, but NMFS believes that the proposed rule both offers a 
reasonable way to resolve those challenges and is fully consistent with 
CMM 2008-01. Nonetheless, as described in the response to comment 9, 
the proposed rule has been modified in this final rule with regard to 
which longline fisheries bigeye tuna catches will be assigned.
    NMFS acknowledges that this rule would indeed preclude bigeye tuna 
catches made in the portion of the EEZ surrounding the Hawaiian 
Archipelago from being assigned to the longline fishery of American 
Samoa, regardless of whether the vessel that caught the fish was based 
in American Samoa, registered for use under an American Samoa Longline 
Limited Access Permit, or involved in a chartering arrangement with 
American Samoa. Since under the Pelagics FMP, only vessels issued 
Hawaii Longline Limited Access Permits may harvest fish within the 
portion of the EEZ surrounding Hawaii, NMFS believes that the 
Participating Territories have little or no nexus to those fish for 
purposes of implementing the limit under WCPFC. NMFS believes that the 
requirements set forth in this rule are necessary and appropriate to 
implement the catch limit established by the WCPFC, consistent with the 
objectives of CMM 2008-01, while preserving opportunities for 
responsible fisheries development by the U.S. Participating 
Territories. For the reasons given in the response to comment 8, NMFS 
believes this is appropriate.
    Comment 12: The proposed regulations are defective in that instead 
of harmonizing bigeye tuna conservation and the promotion of fisheries 
of Participating Territories, as is clearly the intent of CMM 2008-01, 
NMFS seeks to broadly enforce the ten percent reduction in U.S. Pacific 
longline bigeye tuna catch while establishing insurmountable regulatory 
barriers to the ability of American Samoa, Guam, and the CNMI to: (1) 
use their separate 2,000 mt bigeye tuna catch limits; (2) responsibly 
develop their fisheries subject to no catch limit; and (3) engage 
vessels by charter, lease, or other similar mechanisms to operate as an 
integral part of their domestic fleet. Because the proposed regulations 
are a direct attempt to enforce selected provisions of CMM 2008-01, 
while rendering useless other applicable provisions of CMM 2008-01, the 
proposed regulations violate the WCPFC Implementation Act NMFS is not 
authorized to adopt implementing regulations that circumvent the 
express provisions of the WCPFC Implementation Act; nor may NMFS pick 
and choose among those provisions of CMM 2008-01 it likes and dislikes 
so as to implement one of WCPFC's laudable purposes (bigeye tuna 
conservation) while entirely frustrating another clear, important, and 
laudable purpose (development of bigeye tuna fisheries of Participating 
Territories through separate or no catch limits).
    Response: The objectives of CMM 2008-01, as stated in paragraph 1, 
include maintaining bigeye tuna and yellowfin tuna stocks at levels 
capable of producing their maximum sustainable yield, and achieving 
specific fishing mortality rates for those stocks. The CMM does include 
provisions specific to small island developing State Members and 
Participating Territories, but those provisions are simply intended to 
take into account, in accordance with the Convention, the special 
requirements of small island developing State Members and Participating 
Territories, in keeping with the objectives of the CMM, as set forth in 
paragraph 1.
    NMFS is not choosing to implement only select provisions of CMM 
2008-01 (but note that the purse seine-related provisions of the CMM 
have been implemented in a separate rule). NMFS recognizes that CMM 
2008-01 contains provisions specifically applicable to the fisheries of 
Participating Territories, including separate bigeye tuna catch limits 
in longline fisheries (or no limits at all if the Participating 
Territory's

[[Page 64004]]

domestic fisheries are being developed responsibly). NMFS has 
determined that no regulatory action is needed at this time to 
implement those provisions, so this rule is limited in scope to the 
U.S. longline fisheries that are not fisheries of American Samoa, Guam, 
or the CNMI.
    NMFS does not agree that the proposed rule (or this final rule) 
would prevent any of the three U.S. Participating Territories from 
utilizing the bigeye tuna catches available to their longline fisheries 
or from developing those fisheries responsibly. Nothing in this rule 
prohibits U.S. Participating Territories from entering into charter 
arrangements with other vessels, provided that they operate 
consistently with applicable laws and regulations, including those 
implementing the Pelagics FMP. The proposed rule (and this final rule), 
would include criteria that would serve to clearly differentiate the 
longline fisheries of the U.S. Participating Territories from other 
U.S. longline fisheries for the purpose of reporting bigeye tuna 
catches to the WCPFC. As indicated in the response to comment 8, NMFS 
recognizes that the criteria used to differentiate the fisheries would 
preclude bigeye tuna catches made in the portion of the EEZ surrounding 
the Hawaiian Archipelago from being assigned to the longline fisheries 
of the U.S. Participating Territories, regardless of whether the vessel 
that caught the fish was based in one of the U.S. Participating 
Territories, registered for use under an American Samoa Longline 
Limited Access Permit, or involved in a chartering arrangement with one 
of the U.S. Participating Territories. However, NMFS believes that 
differentiating the longline fisheries in this way is necessary to 
satisfy the provisions of CMM 2008-01 that are being implemented in 
this rule.
    Comment 13: Discussions have taken place between the Hawaii 
Longline Association (HLA) and NMFS and the U.S. Department of State 
regarding American Samoa's intent to enter into a charter agreement to 
engage longline vessels [that do not necessarily have American Samoa 
Longline Limited Access Permits and that would not necessarily land 
their catch in American Samoa] to fish for bigeye tuna as an integral 
part of American Samoa's domestic fleet. [A copy of this charter 
agreement, signed by both parties, was submitted to NMFS with this 
comment.] In these discussions, NMFS has insisted that existing 
provisions of the MSA and its implementing regulations conflict with 
and prevent U.S. Participating Territories from exercising their rights 
under CMM 2008-01 to either fish under the separate catch limit (or no 
catch limit) allocated to them by the WCPFC, and to enter into domestic 
charter agreements under the express provisions of paragraph 2 of CMM 
2008-01. However, NMFS has yet to identify any specific provisions of 
the MSA or its implementing regulations that establish a conflict.
    Response: NMFS does not believe that the MSA or its implementing 
regulations prevent the longline fisheries of the U.S. Participating 
Territories from catching bigeye tuna within the constraints imposed by 
CMM 2008-01 or from entering into domestic charter arrangements with 
U.S. vessels. NMFS, however, acknowledges that the rule would not 
permit catch to be assigned to the U.S. Participating Territories for 
WCPFC reporting purposes unless the catch satisfies the nexus 
requirements established in the rule. As explained above, paragraph 2 
of CMM 2008-01 does not mandate the implementation of charters, but 
merely instructs WCPFC members to attribute the catches of vessels 
operating under charters to the host State if the vessel is operated as 
an integral part of its domestic fleet, and to the flag State if it is 
not. In addition, all U.S. longline fisheries on the high seas and in 
the EEZ are federally managed, and are subject to regulations 
implementing the Pelagics FMP. The provisions concerning annual catch 
limits for U.S. Participating Territories under CMM 2008-01 are not 
effective until implemented by appropriate regulations, such as 
regulations under the WCPFC Implementation Act or regulations under the 
MSA to implement FMP amendments. Until such time, the U.S. 
Participating Territories do not have an interest in federally managed 
fish stocks caught on the high seas or in the EEZ that may be assigned 
by charter agreement or other arrangement. As stated above, the WPFMC 
is currently evaluating a proposal to establish a charter scheme as an 
amendment to the FMP for the purpose of aiding Participating 
Territories in the responsible development of their fisheries.
    In establishing a catch limit for the other U.S. longline 
fisheries, the final rule, by necessity, establishes clear criteria to 
distinguish those fisheries from the longline fisheries of the U.S. 
Participating Territories. NMFS recognizes that those distinctions will 
effectively limit what can be considered the longline fisheries of the 
U.S. Participating Territories for the purpose of CMM 2008-01. Yet 
meaningful limits are clearly needed to ensure that the important 
conservation objectives of CMM 2008-01 are achieved. For example, a 
bigeye tuna that is caught on the high seas by a vessel without an 
American Samoa Longline Limited Access Permit and landed in Hawaii 
would not be considered a bigeye tuna caught in the American Samoa 
longline fishery. This is because a vessel operated under such 
circumstances would have little or no connection to American Samoa, 
would not be subject to its laws and regulations, and the fish would 
not be subject to American Samoa's management authority.
    Comment 14: It is express and clear that the WCPFC intended to 
establish separate and different bigeye tuna catch limits, if any, for 
American Samoa, Guam, and the CNMI. Accordingly, the ten percent 
reduction catch limit applicable to U.S. Pacific longline fisheries is 
not applicable to American Samoa, Guam, and the CNMI. Nothing under the 
MSA addresses how bigeye tuna fishing rights granted under 
international law to those territories may or must be implemented, or 
by whom. Additionally, the WCPFC intended to promote longline bigeye 
tuna fisheries development in Participating Territories, including 
through the use of charters, leases, and other similar mechanisms. 
Accordingly, the goal of reducing bigeye tuna catch [sic] is not 
applicable to Participating Territories, and instead, the WCPFC has 
established through CMM 2008-01 that bigeye tuna fisheries development 
is the higher priority and guiding principle for Participating 
Territories.
    Response: NMFS agrees that in its adoption of CMM 2008-01, the 
WCPFC intended to establish separate and different bigeye tuna catch 
limits for each Participating Territory, and that the ten percent 
reduction in longline catches of bigeye tuna applicable to the other 
U.S. longline fisheries is not applicable to the longline fisheries of 
American Samoa, Guam, or the CNMI. Indeed, the proposed rule (and this 
final rule) would not establish any catch limits for the longline 
fisheries of the three U.S. Participating Territories.
    With respect to the intent of the WCPFC as expressed in CMM 2008-
01, NMFS does not agree that development of the bigeye tuna fisheries 
of Participating Territories is an objective of CMM 2008-01, or that 
the WCPFC intended that such development be accomplished through the 
use of charter, leases, or other similar mechanisms. As indicated in 
the response to comment 12, the objectives of CMM 2008-01 are explicit 
in paragraph 1 of the CMM and are limited to maintaining bigeye tuna 
and yellowfin tuna stocks at specified levels

[[Page 64005]]

and achieving specific fishing mortality rates for those stocks. The 
provisions of CMM 2008-01 that relate to the use of charters, leases, 
and similar arrangements relate only to how the activities of vessels 
operating under such arrangements, such as their catch and fishing 
effort, are to be accounted for for example, whether their catches 
should be attributed to the flag State or the host State. The CMM does 
not in any way require the development or use of such arrangements. 
Although CMM 2008-01 includes provisions specific to the fisheries of 
Participating Territories, NMFS does not agree that those provisions 
establish bigeye tuna fisheries development in the Participating 
Territories as a priority or guiding principle.
    Comment 15: The provisions of CMM 2008-01 are clear and the United 
States is obligated to either implement all of its provisions or the 
Secretary of State must take action under the WCPFC Implementation Act 
to disapprove CMM 2008-01. In the former case, there is nothing in 
existing U.S. law that impairs or impedes NMFS' ability to fully 
implement the CMM, and in doing so, to harmonize existing MSA 
provisions with new requirements necessitated by international 
convention. The proposed regulations, however, would not achieve such 
harmony, and instead would establish barriers specifically designed to 
block American Samoa, Guam, and the CNMI from fishing under their 
separate bigeye tuna catch limits, developing their bigeye tuna 
fisheries, and entering into domestic charter agreements to accomplish 
those purposes. [The commenter included with the comment a copy of a 
``Domestic Charter Agreement'' between American Samoa and Hawaii 
Longline Association, signed by representatives of both parties.]
    Response: See responses to comments 12 and 13.
    Comment 16: Under the proposed rule, NMFS proposes to assign bigeye 
tuna catches based on the area of catch and the area of landing, 
regardless of the authority under which the vessel was fishing, a 
proposal that NMFS asserts ``closely aligns'' with past practice. This 
proposal, which is specifically designed to block American Samoa, Guam, 
and the CNMI from exercising their international fishing rights under 
CMM 2008-01, is contrary to CMM 2008-01, based on factual inaccuracies, 
and illogical. Specifically, nothing about ``past practice'' under 
unrelated provisions of the MSA informs implementation of rights 
provided for in CMM 2008-01. Nothing remotely suggests that past 
practices of the United States were the premise for any provision of 
CMM 2008-01, nor does the plain language of CMM 2008-01 suggest that 
the specially negotiated and recognized rights of Participating 
Territories should be constrained by the location of catch or the 
landing location of the domestic fleet CMM 2008-01 grants each 
Participating Territory, at a minimum, the right for its longline 
fisheries to catch up to 2,000 mt of bigeye tuna within the Convention 
Area without regard to landing location. Even if past practice were 
relevant to implementation of CMM 2008-01, which it is not, there is no 
practice of or logic to attributing catch based on landing location, 
and there is extensive precedent for ignoring catch location as a 
determining factor in allocation of catch limits. For example, landings 
in California by vessels with Hawaii Longline Limited Access Permits 
have been attributed to the Hawaii fisheries and not to California 
fisheries, and landings in Cook Islands by vessels with American Samoa 
Longline Limited Access Permits have been attributed to American Samoa 
fisheries. Furthermore, if existing MSA regulations are determinative 
in interpreting unrelated international law, which they are not, what 
matters is flag or permit under which the vessel was fishing, not just 
the area of catch or the area of landing.
    Response: NMFS believes that past practices of NMFS or the United 
States are relevant in the implementation of CMM 2008-01 and that they 
were the premise for certain provisions of CMM 2008-01. The longline 
bigeye tuna catch limits mandated under CMM 2008-01 refer to specific 
baseline catches, from which catches in 2009-2012 are to be reduced by 
specified amounts. In the case of the longline fisheries of the United 
States, the baseline is the catch in 2004, as specified in Attachment F 
to the CMM. Attachment F indicates that the baseline catch for the 
United States is 4,181 mt. Attachment F also indicates that the 
baseline catch for American Samoa is 185 mt (Attachment F does not 
include baseline catches for the longline fisheries of Guam or the CNMI 
because no bigeye tuna catches in those fisheries in the relevant years 
had been reported to the WCPFC by the United States). These baseline 
catch levels specified in Attachment F of CMM 2008-01 are as reported 
by the United States to the WCPFC and were dependent on NMFS' past 
practice in assigning catches. As indicated in the preamble to the 
proposed rule, that practice has been to assign catches according to 
where the fish are landed.
    As to whether the expectations of Participating Territories should 
be constrained under CMM 2008-01 by the location of catch or the 
landing location of the domestic fleet, NMFS believes that the issue in 
question is how the longline fisheries of the U.S. Participating 
Territories are distinguished from the other longline fisheries of the 
United States. CMM 2008-01 does not speak to this question. As 
explained in the preamble to the proposed rule, NMFS proposed to 
distinguish them based on where the fish are landed, as in NMFS' past 
practice in reporting longline bigeye tuna catches to the WCPFC, with 
some modifications. Those modifications were intended to ensure that 
the rule does not lead to shifts in fishing patterns and practices that 
would undermine the objectives of CMM 2008-01. With regard to 
attributing to Hawaii landings made in California by the Hawaii-based 
longline fleet, NMFS may indeed have counted catches as asserted by the 
commenter in certain contexts, and may continue to do so. However, in 
the context of reporting longline bigeye tuna catches of U.S. fishing 
vessels to the WCPFC, NMFS has only reported longline bigeye tuna 
catches for the United States as a whole and for each of the 
Participating Territories it has not attributed catches to specific 
states within the United States (other than the U.S. Participating 
Territories), and there is no reason to do so since the WCPFC's 
conservation and management measures apply to the United States as a 
whole. In the case of a U.S. vessel landing its catch in a foreign 
nation, NMFS may or may not assign the catch to the fisheries of the 
United States (or of a U.S. Participating Territory), depending 
foremost on the context (e.g., reporting to the WCPFC versus other 
purposes), and then on such factors as the location of the catch and 
the status of the vessel with respect to the foreign nation. In short, 
NMFS assigns catch in context. The attribution scheme established in 
this rule is solely for the purpose of assigning catches in the context 
of the WCPFC and particularly for the implementation of the relevant 
provisions of CMM 2008-01.
    With respect to the importance of the type of permit under which a 
vessel is fishing, NMFS agrees that in the case of an American Samoa 
Longline Limited Access Permit, it is relevant in the context of WCPFC-
mandated catch limits, because the issuance of a permit establishes a 
connection between the vessel and the longline fishery of American 
Samoa. That is, only persons with a documented history of fishing for 
pelagic species with longline gear in the portion of the EEZ around 
American

[[Page 64006]]

Samoa are eligible for American Samoa Longline Limited Access Permits. 
This documented history establishes a sufficient nexus to American 
Samoa for purposes of catch attribution. Accordingly, as indicated in 
the response to comment 8, NMFS has modified the catch attribution 
scheme in this final rule such that any bigeye tuna captured by a 
fishing vessel registered for use under a valid American Samoa Longline 
Limited Access Permit would be assigned to the longline fishery of 
American Samoa regardless of where the fish are landed, provided that: 
(1) the fish are not caught in the portion of the EEZ surrounding the 
Hawaiian Archipelago, and (2) they are landed by a U.S. vessel operated 
in compliance with one of the permits issued under 50 CFR 660.707 or 
665.21.
    Comment 17: The reason for the proposed prohibition of 
transshipments of bigeye tuna caught in the Convention Area by longline 
gear to any vessel other than a U.S. fishing vessel operated in 
compliance with a valid permit issued under 50 CFR 660.707 or 665.21 is 
understood. The Hawaii Longline Association trusts that the United 
States will ensure that all WCPFC members are equally attentive to 
controls to prevent transshipments that allow disguising of the flag of 
the vessel that caught the fish and thereby circumvent the limits of 
CMM 2008-01. However, there is no reason to control the areas being 
fished when the bigeye tuna limit is reached. Also, it is not clear 
that prohibiting fishing in both the Convention Area and the EPO 
[during the same trip] or that requiring stowing of gear in the 
Convention Area during a trip in which fishing was done in the EPO 
enhances the monitoring and enforcement of the WCPFC catch limit. NMFS 
must more clearly explain what is gained by these proposed measures or 
eliminate these unnecessary provisions.
    Response: As a part of U.S. delegations to meetings of the WCPFC, 
NMFS will work to ensure that all WCPFC members are implementing the 
provisions of CMM 2008-01 as required.
    On controlling the areas being fished after the limit is reached, 
under the proposed rule (and this final rule), it would be prohibited 
to retain, transship, or land bigeye tuna caught by longline gear in 
the portion of the EEZ surrounding the Hawaiian Archipelago, even by a 
vessel with an American Samoa Longline Limited Access Permit. This is 
one part of the criteria to distinguish the longline fishery of 
American Samoa from the other longline fisheries of the United States. 
The rationale for this criterion is that fishing in the portion of the 
EEZ surrounding the Hawaii Archipelago for which a Hawaii Longline 
Limited Access Permit is required creates too attenuated a nexus with 
the longline fishery of American Samoa to be considered part of that 
fishery.
    Once the limit is reached, the provisions to: (1) prohibit fishing 
in the Convention Area and the EPO 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 EPO, 
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 EPO do not make any longline sets in the 
Convention Area and retain bigeye tuna from those sets after the limit 
established by this rule is reached. However, NMFS acknowledges that 
these two prohibitions should not apply to two categories of longline 
vessels, specifically: (1) vessels on declared shallow-setting trips 
pursuant to pursuant to 50 CFR 665.23(a), since they do not target 
bigeye tuna and they are subject to 100 percent observer coverage; and 
(2) vessels operating for the purposes of this rule as part of the 
longline fisheries of the U.S. Participating Territories, since they 
are not subject to the fishing restrictions established by this 
rulemaking once the annual limit is reached. Accordingly, the proposed 
rule has been slightly modified in this final rule such that the two 
prohibitions do not apply to these categories of vessels.
    Comment 18: The proposed regulations would do far more harm than 
good by: (1) contravening the intent of the WCPFC, (2) impeding 
desperately needed economic opportunities in American Samoa, Guam, and 
the CNMI, (3) seriously damaging the domestic Pacific longline bigeye 
tuna fishery to the benefit of foreign fisheries without a detectable 
conservation benefit, (4) seriously impeding the adoption of 
regulations currently being worked on by the WPFMC that would fully and 
fairly implement all the provisions of CMM 2008-01, and (5) causing 
serious conservation harm to other protected species through 
transferred effects. We recommend that NMFS withdraw the proposed 
regulations and defer adoption of regulations implementing CMM 2008-01 
until the WPFMC has analyzed alternatives and developed implementing 
fishery management plan amendments pursuant to the MSA.
    Response: With regard to the benefits and costs of the proposed 
rule and to the second, third, and fifth points, NMFS' findings on the 
benefits, costs, and impacts of the proposed rule and this final rule 
can be found in the EA and the Supplemental EA, the IRFA and FRFA, and 
the RIR. NMFS has selected the alternative that NMFS believes 
appropriately balances benefits and adverse impacts while satisfying 
the obligations of the United States to implement the relevant longline 
bigeye tuna catch limits established by the WCPFC in CMM 2008-01.
    With regard to the first point the proposed rule contravening the 
intent of the WCPFC, see the response to comment 12.
    NMFS does not agree that adoption of the proposed regulations would 
impede the adoption of regulations being worked on by the WPFMC the 
fourth point raised in the comment. This rule will not in any way 
impede or prevent the WPFMC from evaluating or recommending additional 
management measures under the MSA process. NMFS believes that this 
final rule is needed to provide for the timely implementation of the 
annual catch limit for bigeye tuna established by the WCPFC for 
longline fisheries, which is effective starting in 2009. NMFS will 
continue to work with the WPFMC to the extent that it develops and 
recommends other measures related to implementation of CMM 2008-01.
    Comment 19: 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: The bigeye tuna catch limit established by the WCPFC and 
implemented through this rule applies to bigeye tuna captured by all 
fishing activities of the Hawaii and west coast-based longline fleets. 
Bigeye tuna caught and retained in both the shallow-set (swordfish-
directed) and deep-set sectors would be counted against the limit, and 
the activities of both sectors would be similarly restricted after the 
limit is reached.
    NMFS received several comments that questioned the adequacy of the 
analysis in the draft EA. NMFS prepared a Supplemental EA that contains 
detailed responses to these comments.

Changes from the Proposed Rule

    As explained in the responses to comments 9 and 16, above, and 
after

[[Page 64007]]

giving full consideration to public comments received on the proposed 
rule, NMFS has decided to make a minor change from the proposed rule 
such that bigeye tuna caught by longline gear in the Convention Area by 
fishing vessels with American Samoa Longline Limited Access Permits 
would not be counted against the bigeye tuna catch limit established in 
this rule, provided that: (1) the fish are not caught in the portion of 
the EEZ surrounding the Hawaiian Archipelago, and (2) they are landed 
by a U.S. vessel operated in compliance with one of the permits issued 
under 50 CFR 660.707 or 665.21. Accordingly, Sec.  300.224, ``Longline 
fishing restrictions,'' is revised to include paragraphs (c) and 
(e)(iii) that were not included in the proposed rule, and other 
paragraphs have been renumbered accordingly.
    In Sec.  300.224, ``Longline fishing restrictions,'' paragraphs 
(e)(3) and (e)(4) are revised to clarify that the two prohibitions 
intended to help ensure compliance with the main restrictions triggered 
by the bigeye tuna catch limit being reached no fishing with longline 
gear both inside and outside the Convention Area during the same 
fishing trip and the gear stowage requirements for vessels that fish 
outside the Convention Area and then enter the Convention Area do not 
apply to: (1) vessels on declared shallow-setting trips pursuant to 50 
CFR 665.23(a), since they do not target bigeye tuna and they are 
subject to 100 percent observer coverage; and (2) vessels operating for 
the purposes of this rule as part of the longline fisheries of the U.S. 
Participating Territories, since they are not subject to the main 
fishing restrictions that would be triggered by the limit being 
reached, including vessels registered for use under valid American 
Samoa Longline Limited Access Permits and vessels landing their bigeye 
tuna catch in one of the three U.S. Participating Territories, so long 
as these vessels conduct fishing activities in accordance with the 
provisos necessary for them to be considered part of the longline 
fisheries of the U.S. Participating Territories. Furthermore, with 
respect to vessels on declared shallow-setting trips, the requirement 
that the number of bigeye tuna retained on board, transshipped, or 
landed not exceed the number on board upon the effective date of the 
prohibitions, as recorded by the NMFS observer, is no longer deemed 
necessary and has been removed from paragraph (e)(1)(i) of Sec.  
300.224.
    In Sec.  300.211, ``Definitions,'' the definition of ``fishing 
trip'' has been omitted because since publication of the proposed rule, 
a definition for ``fishing trip'' has been established in a separate 
rulemaking (final rule published August 4, 2009; 74 FR 38544). Although 
the established definition is not identical to the one included in the 
proposed rule, it is functionally the same, so there is no need to 
revise the definition in this final rule.

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 establish an 
effective date less than 30 days after date of publication of this 
final rule. Compliance with the 30-delay requirement would be 
impracticable and contrary to the public interest, since NMFS would be 
unable to ensure that the bigeye tuna catch limit mandated by the WCPFC 
for 2009 is not exceeded, and would consequently be frustrated in 
promulgating the regulations needed to satisfy the international 
obligations of the United States under the Convention.

National Environmental Policy Act

    Pursuant to the requirement of the National Environmental Policy 
Act (NEPA), NMFS prepared an EA that analyzed the effects of the 
proposed rule on the human environment. In the EA, NMFS analyzed the 
potential environmental effects of the proposed rule, as well as three 
alternatives to the proposed rule, including the no-action, or 
baseline, alternative. NMFS issued the EA in draft form for public 
review and comment in conjunction with the proposed rule. Comments on 
the draft EA stated that the EA contained insufficient information and 
inadequate analysis to assess the potential environmental impacts of 
the proposed rule and suggested that an Environmental Impact Statement 
(EIS) should be prepared.
    The EA also contained analysis of another action a rule 
implementing provisions of CMM 2008-01 for the U.S. purse seine fishery 
operating in the WCPFC's area of competence and a final version of the 
EA (July 2009 version) was issued in conjunction with the final rule 
for that other action on August 4, 2009. In order to provide detailed 
responses to the comments regarding the EA's analysis of the proposed 
rule for the bigeye tuna catch limit, NMFS prepared a Supplemental EA. 
The Supplemental EA also includes analysis of another action 
alternative, which is the alternative implemented in this final rule. 
Overall, the expected impacts on bigeye tuna and other living marine 
resources from the alternative implemented in this final rule are 
expected to be minor and generally beneficial, because it would 
implement a catch limit where one does not currently exist. The 
alternative implemented in this final rule is similar to the proposed 
rule in that it would prohibit the retention, landing, and 
transshipment of bigeye tuna by U.S. longline vessels in the Convention 
Area once the catch limit is reached. However, under this alternative, 
bigeye tuna caught by vessels registered for use under an American 
Samoa Longline Limited Access Permit would be considered to be fish 
caught as part of the American Samoa longline fishery regardless of 
where the fish are landed, and thus, would not be subject to the catch 
limit established by the rule, so long as they are caught outside the 
portion of the EEZ surrounding the Hawaiian Archipelago and are landed 
by a vessel with a valid permit issued under 50 CFR 660.707 or 50 CFR 
665.21.
    The alternative implemented in this final rule is less restrictive 
on fishermen than the proposed rule or other action alternatives 
analyzed in the EA. However, the impacts on the human environment from 
the final rule would be similar to the impacts from the proposed ru