International Fisheries; Pacific Tuna Fisheries; Fishing Restrictions in the Eastern Pacific Ocean, 68332-68339 [2011-28661]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 214 (Friday, November 4, 2011)]
[Rules and Regulations]
[Pages 68332-68339]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-28661]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 110620342-1659-03]
RIN 0648-BA66


International Fisheries; Pacific Tuna Fisheries; Fishing 
Restrictions in the Eastern Pacific Ocean

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

ACTION: Final rule.

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SUMMARY: NMFS is issuing regulations under the Tuna Conventions Act of 
1950, as amended, (Act) to implement decisions of the Inter-American 
Tropical Tuna Commission (IATTC). At its 82nd Meeting in July 2011, the 
IATTC adopted a number of resolutions, some of which require rulemaking 
to implement domestically in the United States. This rule implements 
three of these decisions: the Resolution on Tuna Conservation 2011-2013 
(C-11-01); the Resolution Prohibiting Fishing on Data Buoys (C-11-03); 
and the Resolution Prohibiting the Retention of Oceanic Whitetip Sharks 
(C-11-10). This action is necessary for the United States to satisfy 
its obligations as a member of the IATTC.

DATES: This rule becomes effective on December 5, 2011, except for the 
amendments to Sec.  300.24(m) and (n) and Sec.  300.25(f) which become 
effective November 4, 2011.

ADDRESSES: Copies of the proposed and final rules, Small Business 
Compliance Guide, and the Regulatory Impact Review for this action are 
available via the Federal e-Rulemaking portal, at https://www.regulations.gov, and are also available from the Regional 
Administrator, Rodney R. McInnis, NMFS Southwest Regional Office, 501 
W. Ocean Boulevard, Suite 4200, Long Beach, CA 90802. Written comments 
regarding the burden-hour estimates or other aspects of the collection-
of-

[[Page 68333]]

information requirements contained in this final rule may be submitted 
to NMFS Southwest Regional Office and by email to OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Heidi Hermsmeyer, NMFS SWR, (562) 980-
4036.

SUPPLEMENTARY INFORMATION: On September 30, 2011, NMFS published a 
proposed rule in the Federal Register (76 FR 560790) to revise 
regulations at 50 CFR part 300, subpart C, in order to implement 
certain decisions of the IATTC. The proposed rule was open to public 
comment through October 17, 2011. NMFS also published an Advanced 
Notice of Proposed Rulemaking (ANPR) in the Federal Register (76 FR 
39808, July 7, 2011) to request public comment on implementing two of 
the three IATTC measures being implemented with this final rule.

Background on the IATTC

    The IATTC was established under the 1949 Convention for the 
Establishment of an Inter-American Tropical Tuna. In 2003, the IATTC 
adopted a resolution that approved the Convention for Strengthening of 
the Inter-American Tropical Tuna Commission Established by the 1949 
Convention Between the United States of America and the Republic of 
Costa Rica (Antigua Convention), a major revision of the 1949 
Convention. The Antigua Convention entered into force on August 27, 
2010. The objective of the Antigua Convention is to ensure the long-
term conservation and sustainable use of fish stocks covered by this 
Convention. The IATTC Convention Area (Convention Area) includes the 
waters bounded by the coast of the Americas, the 50[deg]N. and 
50[deg]S. parallels, and the 150[deg]W. meridian.
    As a Contracting Party to the 1949 Convention and a member of the 
IATTC, the United States is legally bound to implement the decisions of 
the IATTC. The Act (16 U.S.C. 951-961) authorizes the Secretary of 
Commerce, after approval of IATTC recommendations by the Secretary of 
State, to promulgate such regulations as may be necessary to carry out 
the obligations of the United States. The authority to promulgate 
regulations has been delegated to NMFS.
    The IATTC convened its 82nd Meeting in July 2011 and adopted by 
consensus twelve new resolutions. This final rule implements the 
following three resolutions adopted by the IATTC at the 82nd Meeting: 
the Resolution on a Multiannual Program for the Conservation of Tuna in 
the Eastern Pacific Ocean in 2011-2013 (C-11-01); the Resolution 
Prohibiting Fishing on Data Buoys (C-11-03); and the Resolution on the 
Conservation of Oceanic Whitetip Sharks Caught in Association with 
Fisheries in the Antigua Convention Area (C-11-10). All of the other 
resolutions that were adopted in 2011 either do not require further 
rulemaking or will be implemented in one or more separate subsequent 
rulemakings. All active resolutions and recommendations are available 
on the following IATTC Web site: https://www.iattc.org/ResolutionsActiveENG.htm.

Changes to Tuna Conservation Measures for 2011-2013

    Resolution C-11-01 is very similar to the tuna conservation measure 
adopted by the IATTC in 2009 (Resolution C-09-01). NMFS implemented 
Resolution C-09-01 at 50 CFR part 300, subpart C (74 FR 61046, November 
23, 2009). Similar to Resolution C-09-01, the main objectives of 
Resolution C-11-01 are to not increase the fishing mortality of 
yellowfin tuna (Thunnus albacares) and to reduce the fishing mortality 
of bigeye tuna (Thunnus obesus) in the Convention Area over the period 
2011-2013.
    NMFS is reducing the duration of the closure period of the 
Convention Area for tuna purse seine vessels class sizes 4-6 (182 
metric tons carrying capacity or greater) in 2011 from 73 days, which 
was established under Resolution C-09-01, to 62 days, which was 
established under Resolution C-11-01, and continuing the closure period 
of 62 days in the years 2012 and 2013. The shorter closure period was 
agreed to by the members of the IATTC based on the 2011 bigeye and 
yellowfin tuna stock assessments. NMFS is also giving applicable purse 
seine vessel owners the ability to choose between the two possible 
closure periods established by the IATTC for 2012 and 2013. In 2009, 
2010, and 2011, NMFS chose the later closure period for the entire U.S. 
purse seine fleet based on historical fishing operations; however, 
other members of the IATTC are allowing vessel owners to choose between 
the two closure periods to give fleets greater flexibility. In order to 
give comparable flexibility to the U.S. fleet, NMFS is providing this 
choice to the U.S. fleet as well in 2012 and 2013. Therefore, vessel 
owners of purse seine vessels that are subject to these requirements 
will be required by July 1, 2012, and July 1, 2013, to notify the NMFS 
Southwest Regional Administrator of his or her choice of closure period 
for the year. The two options are July 29 to September 28, or November 
18 to January 18 of the following year for 2012 and 2013. This option 
is not available for 2011 since the earlier closure period has already 
passed. If a vessel owner fails to notify the Regional Administrator of 
his or her choice by the July 1 deadline for each year, the vessel will 
be subject to the later closure period (November 18 to January 18 of 
the following year) by default.
    The high seas time/area closure for tuna purse seine vessels class 
sizes 4-6 will also continue to be in effect in 2012 and 2013. The area 
consists of the area bounded at the east and west by 96[deg] and 
110[deg] W. longitude and bounded at the north and south by 4[deg] N. 
and 3[deg] S. latitude. The high seas time/area closure was originally 
established under Resolution C-09-01 and has been in place since 2009.
    In addition, NMFS is extending in 2012 and 2013 the annual bigeye 
tuna quota of 500 metric tons applicable to the bigeye catch in the 
Convention Area by U.S. longline vessels over 24 meters in overall 
length in accordance with the requirements in Resolution C-11-01. This 
quota has been in place since 2009 and has never been reached or 
exceeded. The members of the IATTC agreed to continue the bigeye tuna 
quotas in the Convention Area after review and analysis of the 2011 
bigeye and yellowfin tuna stock assessments.
    NMFS is also renewing the tuna retention program that requires all 
bigeye, skipjack, and yellowfin tuna caught by a U.S. purse seine 
vessel of class sizes 4-6 be retained on board and landed, except fish 
deemed unfit for human consumption for reasons other than size. The 
single exemption to this provision is the final set of a trip, when 
there may be insufficient well space remaining to accommodate all the 
tuna caught in that set. This measure is meant to reduce discards of 
juvenile (undersized) bigeye, yellowfin, and skipjack tunas that are 
often caught by purse seine vessels that fish on fish aggregating 
devices (FADs), reduce overall catches of bigeye tuna, and provide an 
incentive to fishermen to avoid large catches of juvenile bigeye tuna. 
The catch retention requirement will go into effect on January 1, 2012, 
and remain in effect unless the members of the IATTC agree to remove 
the measure in 2013 or beyond. NMFS is proposing to not include an 
expiration date for this requirement because NMFS expects it to be 
included by the IATTC in future tuna conservation and management 
resolutions. If a decision is made to remove the measure, NMFS

[[Page 68334]]

will take appropriate action to remove the regulation.

Prohibition on Fishing Around Data Buoys

    The Resolution Prohibiting Fishing on Data Buoys (Resolution C-11-
03) was adopted to reduce vandalism and damage to data buoys caused by 
fishing vessels that often leads to loss of data critical to weather 
forecasting, tsunami warnings, search and rescue efforts, and research 
of the marine environment. Resolution C-11-03 defines data buoys as 
floating devices, either drifting or anchored, that are deployed by 
governmental or recognized scientific organizations or entities for the 
purpose of electronically collecting environmental data, and not in 
support of fishing activities.
    This rule prohibits all U.S. fishing vessels that are used to 
target HMS in the Convention Area from interacting with data buoys. 
According to Resolution C-11-10, interactions include, but are not 
limited to, encircling the buoy with fishing gear, tying up to or 
attaching the vessel, fishing gear, or any part or portion of the 
vessel to a data buoy, or cutting its anchor line. In addition, this 
rule prohibits all U.S. longline and purse seine vessels that are used 
to fish for HMS in the Convention Area from using fishing gear within 
one nautical mile of an anchored data buoy. The one-nautical-mile 
distance will be measured from the data buoy to the nearest portion of 
the vessel or items associated with the vessel, such as gear or 
watercraft deployed by the fishing vessel, to the data buoy. These 
measures only apply to data buoys that have been identified to the 
IATTC. In addition, the Web site of NOAA's National Data Buoy Center 
(NDBC) at https://www.ndbc.noaa.gov/ contains detailed information 
regarding data buoys maintained by NDBC and its partner organizations, 
including location and owner information. The Web site of the Observing 
System Monitoring Center, maintained by NOAA's Office of Climate 
Observations at https://osmc.noaa.gov/Monitor/OSMC/OSMC.html, also 
provides information regarding the location of data buoys. The Western 
and Central Pacific Fisheries Commission (WCPFC) also adopted a similar 
measure in December 2009 (CMM 2009-05) and issued an information 
package on May 18, 2010, that provides sample information on the type 
of data buoys that may be encountered by fishermen. The information 
package is available on the WCPFC's Web site at https://www.wcpfc.int/conservation-and-management-measures. The prohibition does not apply if 
the fishing vessel is operating as part of a scientific research 
program that notified the IATTC of its intent, or is conducting work on 
behalf of the IATTC.
    Other requirements include prohibiting U.S. fishing vessels used to 
target HMS in the Convention Area from taking onboard a data buoy 
unless specifically authorized or requested to do so by the entity 
responsible for the data buoy, requiring U.S. fishing vessels used for 
fishing for HMS in the Convention Area that become entangled with data 
buoys to remove the entangled fishing gear with as little damage to the 
data buoy as possible, and requiring vessels to take all reasonable 
measures to avoid fishing gear entanglement or directly interacting in 
any way with drifting data buoys. NOAA has also previously issued news 
releases asking the fishing, shipping, and boating communities to 
protect data buoys voluntarily by taking specific steps, such as: never 
boarding or tying up to a buoy; never fishing around or under a buoy; 
and giving the buoy a wide berth to avoid entangling the mooring or 
other equipment suspended from the buoy--500 yards for vessels which 
are trailing gear and at least 20 yards for all others.

Conservation of Oceanic Whitetip Sharks

    The Resolution on the Conservation of Oceanic Whitetip Sharks 
Caught in Association with Fisheries in the Antigua Convention Area 
(Resolution C-11-10) was adopted to reduce the fishing pressure on 
oceanic whitetip sharks (Carcharhinus longimanus), which are caught 
incidentally and targeted in some oceanic and coastal fisheries. During 
the IATTC's 82nd Meeting, IATTC scientific staff showed estimates 
illustrating a dramatic decline in the catch per unit of effort of this 
species, which may be indicative of a decline in the population of this 
species in the EPO.
    This rule prohibits all U.S. vessels targeting HMS in the 
Convention Area from retaining onboard, transshipping, landing, 
storing, selling, or offering for sale any part or whole carcass of 
oceanic whitetip sharks. All applicable U.S. vessels are required to 
release unharmed, to the extent practicable, oceanic whitetip sharks 
when brought alongside the vessel. Members and cooperating non-members 
of the IATTC are required to implement Resolution C-11-10 by January 1, 
2012.

Technical Correction to Vessel Capacity Regulations

    This rule also makes a technical change to Sec.  300.22(b)(7)(ii) 
to reflect changes made in a previous rulemaking on vessel capacity. 
The total capacity limitation for the U.S. purse seine fishery in the 
Convention Area is 31,775 cubic meters, but NMFS inadvertently failed 
to state that number into this paragraph when the change was made in 
Sec.  300.22(b)(4)(i)(A). NMFS is correcting this oversight in this 
rulemaking.

Response to Public Comments

    NMFS received two public comments during the ANPR public comment 
period. One comment expressed general opposition to the action because 
it did not go far enough in terms of conservation and advocated banning 
all longline fishing and further restricting tuna fisheries beyond the 
scope of this action. In addition, the National Park Service, Pacific 
West Region, noted that they did not have comments on the subject 
action. NMFS also received one public comment during the proposed rule 
public comment period from NOAA Pacific Marine Environmental Laboratory 
(PMEL). Only one individual participated in the public hearing via 
teleconference and did not provide substantive comments.
    Comment 1: The NOAA PMEL Tropical Atmosphere Ocean (TAO) project 
fully supports NOAA's planned implementation of the Resolution Fishing 
on Data Buoys (C-11-03) in the IATTC Convention Area. The eastern 
tropical Pacific Ocean TAO data buoys experience the highest amount of 
damage due to fishing activity when compared to all other sites in the 
array. Loss of critical TAO data results in decreased ability to detect 
and forecast El Ni[ntilde]o and La Ni[ntilde]a, which degrades the 
accuracy of advisories issued for the protection of life and property. 
In addition, millions of taxpayer dollars are wasted on repairs or 
replacements to moorings damaged or lost by fishing activity. The 
benefits of this resolution to the nation in terms of public health and 
safety far outweigh any inconvenience resulting from the restriction of 
fishing activity around these crucial environmental measurement 
platforms.
    Response: NMFS acknowledges this comment in support of the action.

Changes From the Proposed Rule

    There were a few minor changes to the proposed regulatory text. The 
subject of the sentence at Sec.  300.25(e)(4) regarding the oceanic 
whitetip shark

[[Page 68335]]

provision, was changed from the vessel itself to the vessel crew, 
operator, or owner of the vessel given the nature of the provision. In 
addition, vessel length was clarified throughout the regulations to be 
``overall length,'' which is defined by the U.S. Coast Guard at 46 CFR 
69.203 as the horizontal distance between the outboard side of the 
foremost part of the stern and the outboard side of the aftermost part 
of the stern, excluding rudders, outboard motor brackets, and other 
similar fittings and attachments. Finally, the option to mail in 
notification to the Regional Administrator of a chosen purse seine 
closure period was added to Sec.  300.25(f)(ii)(3).

Classification

    The NMFS Assistant Administrator has determined that this final 
rule is consistent with the Tuna Conventions Act and other applicable 
law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day 
delay in effective date for the portion of the rule that is shortening 
the purse seine closure period in the Convention Area by 11 days. One 
purpose of this rule is to allow U.S. fishing vessel owners to maximize 
their fishing opportunities while still conserving and sustainably 
managing the bigeye tuna and yellowfin tuna fish stocks in the 
Convention Area consistent with U.S. obligations as a member of the 
IATTC. Currently, regulations prohibit purse seine vessels of class 
size 4-6 (more than 182 metric tons carrying capacity) from fishing in 
the Convention Area from November 7, 2011, to January 18, 2012. 
However, these regulations amend current regulations to delay the start 
date of the purse seine closure period to November 18, 2011, consistent 
with Resolution C-11-01. If this rule is not effective for 30 days, 
then U.S. fishing vessels will lose the additional fishing 
opportunities afforded them through the agreement made at the 82nd 
IATTC Meeting. Because the delay would undermine the purpose of this 
rule, and would prevent U.S. fishermen from using the additional 
fishing days to maximize their fishing opportunities, the delay in 
effectiveness is contrary to the public interest. Accordingly, there is 
good cause to waive the 30-day delay in effectiveness for the 
regulations at Sec.  300.24(m) and (n) and Sec.  300.25(f), which will 
become effective immediately, while all other regulations being issued 
will become effective 30 days after publication of this final rule.
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the IRFA and a summary of the analyses completed to 
support the action. A copy of this analysis is available from NMFS (see 
ADDRESSES).

Data Buoy and Oceanic Whitetip Shark Measures

    The data buoy and oceanic whitetip shark provisions in the rule 
apply to owners and operators of U.S. vessels targeting HMS in the 
Convention Area, including, longline, purse seine, troll and baitboat, 
drift gillnet, harpoon, and commercial passenger fishing vessels. All 
of these vessels are considered small business entities under the 
Regulatory Flexibility Act (RFA) (i.e., they have annual gross revenues 
of less than $4 million) except for the large purse seiners. Some of 
the data buoy provisions also specifically apply to longline and purse 
seine vessels. However, in the case of the data buoy provisions, it is 
unlikely that this rulemaking will result in a significant change in 
fishing operations, as NMFS is unaware of U.S. fishing vessels 
interacting with data buoys in the Convention Area in the past, or U.S. 
longline or purse seine vessels deploying gear within one nautical mile 
of anchored data buoys in the Convention Area. If, in the past, there 
have been vessels fishing within one nautical mile of anchored data 
buoys, the longline and purse seine measures could result in some 
negligible affects to the operating costs of vessels in terms of a 
potential increase in search time if there is less fishing success when 
not fishing around anchored buoys. Also, such vessels are required to 
avoid fishing in areas where anchored data buoys are located, which 
could slightly reduce the available fishing grounds and could cause 
some shift in the spatial distribution of fishing effort. Operators and 
crew are also required to take additional precautions when encountering 
data buoys anywhere in the Convention Area, which could create new 
burdens that could increase operating costs by increasing the time 
spent at sea. For example, the operator and crew of any vessel that has 
gear that becomes entangled with a data buoy will need to make sure to 
disentangle the gear carefully, in order to cause as little damage to 
the data buoys as possible. However, since the measures are limited to 
fishing around anchored data buoys and longline and purse seine vessels 
can still fish in essentially the same fishing grounds as long as they 
avoid the circular 3.14 nm\2\ prohibited fishing zone around each 
anchored data buoy, it is likely that there will be no real changes in 
fishing operations or associated revenues.
    The longline and purse seine fleets that currently fish around 
anchored data buoys could also see some change in the composition of 
their catch due to no longer being allowed to fish around anchored data 
buoys that can act as fish aggregating devices; however, this is rather 
unlikely. This provision could lead to an increase in the proportion of 
yellowfin tuna and a decrease in the proportion of bigeye tuna, 
skipjack tuna, and other species that tend to be caught around floating 
objects. Some studies suggest that seabirds, sea turtles, and marine 
mammals aggregate in association with floating objects, so there could 
be some minor beneficial effects on protected resources from 
implementation of the rule. However, this impact is difficult, if not 
impossible, to estimate and in all likelihood there will not be changes 
in fishing operations and catch compositions resulting from the rule. 
In addition, purse seine vessels still can fish using FADs that they 
deploy and it is presumed that longline vessels tend to avoid fishing 
in close proximity to anchored buoys to prevent damage and entanglement 
of gear.
    NMFS compared the effects of the data buoy provisions in this rule 
to one alternative, which is a no action alternative. Under this 
alternative, there would be no changes to current regulations that do 
not prohibit U.S. vessels targeting HMS in the Convention Area from 
interacting with data buoys as stipulated in Resolution C-11-03. Under 
this alternative, there would be no effects to vessel owners compared 
to the status quo. Vessel owners would potentially benefit from not 
implementing the data buoy provisions; however, the United States would 
not be implementing Resolution C-11-03 and would therefore not be 
satisfying its international obligations as a member of the IATTC.
    The oceanic whitetip shark conservation measures are also unlikely 
to result in changes to fishing operations or significant economic 
impacts to small entities as U.S. fisheries that target HMS rarely 
retain, transship, land, or sell this species in the Convention Area. 
The Hawaii longline fishery (both deep-set and shallow-set sectors) 
catches the majority, if not all, of the oceanic whitetip sharks caught 
by U.S. fisheries that target HMS in the Convention Area. According to 
observer data from 1995-2010 for the U.S. longline fleet based out of 
Hawaii, the majority (90.1 percent) of observed sets caught zero 
oceanic whitetip sharks. On average, 0.141 oceanic whitetip sharks were

[[Page 68336]]

caught per set during the same time period. Since 2000, there has been 
a national ban on shark finning, which has greatly increased the number 
of sharks, including oceanic whitetip sharks, that are released after 
being caught. From 2004-2006, only 4.9 percent and 1.7 percent of the 
oceanic whitetip sharks that were caught were retained in the deep-set 
and shallow-set longline fisheries, respectively. The overwhelming 
majority of the oceanic whitetip sharks (99.3 percent) caught on 
observed fishing trips in this fishery are caught outside of the 
Convention Area, west of 150[deg]W. longitude. Thus, the prohibition is 
expected to result in no change in fishing operations and only a de 
minimis reduction in associated revenues.
    NMFS compared the effects of the oceanic whitetip provisions to one 
alternative, which is a no action alternative. Under this alternative, 
there would be no changes to current regulations in order to prohibit 
U.S. vessels targeting HMS in the Convention Area from retaining 
onboard, transshipping, landing, storing, selling, or offering for sale 
any part or whole carcass of oceanic whitetip shark, as stipulated in 
Resolution C-11-10. Under this alternative, there would be no effects 
to vessel owners compared to the status quo. Vessel owners would 
potentially benefit from not implementing the oceanic whitetip 
provisions; however, the United States would not be implementing 
Resolution C-11-10 and would therefore not be satisfying its 
international obligations as a member of the IATTC.
    In summary, all entities that have the potential to be affected by 
the data buoy and oceanic whitetip shark measures are believed to be 
small entities except the large purse seine vessels; however, it is 
likely that none of these entities will be significantly impacted by 
the rule as fishing operations and revenues will most likely remain the 
same.

Tuna Conservation Measures

    The tuna conservation measures affect longline vessels over 24 
meters overall length and U.S. purse seine vessels class sizes 4-6 
fishing for yellowfin, bigeye, and skipjack tunas in the Convention 
Area. This rule makes only slight adjustments to the existing tuna 
conservation measures, and extends the effective period for two 
additional fishing years; thus impacts to vessel owners are expected to 
be minimal. The bigeye tuna quota in the longline fishery will remain 
at 500 mt and remain in force for 2012 and 2013. This quota has not 
been reached in 2009 or 2010 and it is not expected to be reached in 
2011. In addition, the purse seine closure in the Convention Area will 
be shortened by 11 days in 2011 and will remain in force for 2012 and 
2013. Additionally, the purse seine vessel owners will be given a 
choice as to when to implement the closure giving them greater 
flexibility while maintaining the same level of conservation, the high 
seas purse seine time/area closure will remain in force for 2012 and 
2013, and the tuna catch retention measures will be extended to 2012 
and beyond.
    NMFS compared the effects of the tuna conservation measures in this 
rule to one alternative, which is a no action alternative. Under this 
alternative, there would be no changes to current regulations to 
continue the bigeye tuna quota in 2012 and 2013 in the longline 
fishery, no changes to the purse seine closure periods, no option to 
select a preferred closure period, and no extension of the tuna 
retention measures as stipulated in Resolution C-11-01. Under this 
alternative, the longline and purse seine fisheries operating in the 
Convention Area would maintain the status quo. The longline vessel 
owners would benefit from not continuing the bigeye tuna quota; 
however, since this quota has not been reached in the past, the effects 
would likely be similar to the measures being implemented. The purse 
seine vessel owners would be disadvantaged by not shortening the purse 
seine closure period in the Convention Area by 11 days in 2011 and not 
giving them the option to choose a preferred closure period; however, 
they would benefit if the closure period in the Convention Area and the 
high seas time/area closure were not continued in 2012 and 2013 and the 
tuna retention measures were not continued in 2012 and beyond. Under 
this alternative, the United States would not be fully implementing 
Resolution C-11-01 and would therefore not be satisfying its 
international obligations as a member of the IATTC.
    The total number of affected longline vessels is approximated by 
the average number of U.S. longline vessels greater than 24 meters in 
overall length (large-scale longline vessels) that have caught bigeye 
tuna in the Convention Area in 2005-2010. In each of the years 2005 
through 2008, the number of large-scale longline vessels that caught 
bigeye in the Convention Area was 18, 8, 18, and 30, respectively. 
Thus, approximately 19 longline vessels on average have the potential 
to be affected by this rule. The majority of the longline vessels that 
may be affected by this rule are based out of Hawaii and American 
Samoa. There is also one longline vessel based out of California that 
is affected by the rule. These longline vessels target bigeye tuna 
using deep sets, and during certain parts of the year, portions of the 
Hawaii and American Samoa fleet target swordfish using shallow sets.
    Most of the Hawaii and American Samoa fleets' fishing effort has 
traditionally been outside of the Convention Area in the western and 
central Pacific Ocean (WCPO), but fishing has also taken place in the 
EPO. The proportion of the large-scale longline vessels annual bigeye 
tuna catches that were captured in the EPO from 2005 through 2009 
ranged from about 5 percent to 26 percent, and averaged 19 percent. As 
an indication of the size of businesses in the fishery, average annual 
fleet-wide ex-vessel revenues during 2005-2009 were about $63 million. 
Given the number of vessels active during that period (128, on 
average), this indicates an average of about $490,000 in annual revenue 
per vessel. All of the businesses affected by the longline measures are 
considered small business entities.
    For the purpose of projecting baseline conditions for the longline 
fishery under no action, this analysis relies on fishery performance 
from 2005 through 2010, since prior to 2005 the longline fishery 
regulations underwent major changes (the swordfish-directed shallow-set 
longline fishery was closed in 2001 and reopened in 2004 with limits on 
fishing effort and turtle interactions). Large-scale longline vessels 
fishing in the Convention Area caught about 166, 51, 118, 325, 204, and 
408 mt of bigeye tuna in 2005-2010, respectively. Thus, it is unlikely 
that the limit will be reached in 2011-2013.
    In summary, all entities affected by the bigeye quota in longline 
fisheries are believed to be small entities, so small entities will not 
be disproportionately affected relative to large entities. In addition, 
this part of the rule is not likely to have a significant impact on a 
substantial number of small entities because it is unlikely that the 
bigeye landings limit for large-scale longline vessels will be reached 
in any given year.
    The total number of affected purse seine vessels is approximated by 
the current number of U.S. purse seine vessels class size 4-6 
authorized to fish in the Convention Area. As of October 18, 2011, 
there were eleven U.S. purse seine vessels listed on the IATTC Vessel 
Register; five are class size 6 (greater than 363 mt carrying 
capacity), one is class size 5 (273--363 mt carrying capacity), and 
five are class sizes 1-3 (less than 182 mt carrying capacity). Thus six 
purse seine vessels may be affected by the rule in the near future

[[Page 68337]]

since these regulations only apply to purse seine vessels class size 4-
6. There is also the potential for other U.S. purse seine vessels based 
out of the WCPO to become authorized to fish in the EPO; however, there 
are capacity limits on purse seine vessels fishing in the EPO and it is 
estimated that at a maximum 15 additional vessels could be added to the 
current authorized list of active purse seine vessels. Purse seine 
vessels class sizes 5 and 6 usually fish outside U.S. waters and 
deliver their catch to U.S. (e.g., American Samoa) or foreign (e.g., 
Ecuador, Mexico, Colombia, Costa Rica) ports. Skipjack and yellowfin 
tuna are the primary target species in the purse seine fishery, and 
bigeye tuna is incidentally targeted. Class size 6 vessels are required 
to have 100 percent observer coverage, while class size 5 vessels are 
not required to carry an observer. Purse seine vessels class size 5 or 
smaller are considered small business entities. It is estimated that 
from 2004-2010, the majority, if not all, class size 5 U.S. purse seine 
vessels have had revenues of less than $0.5 million per year. Class 
size 6 vessels are categorized as large business entities (revenues in 
excess of $4 million per year). A large purse seine vessel typically 
generates about 4,000 to 5,000 mt of tuna valued at about $4 to $5 
million per year.
    It is estimated that purse seine sets will be prohibited for 17 
percent of the year in 2011-2013 (62 day closure/365 days), thus 
catches could be negatively affected unless effort is shifted to areas 
outside of the Convention Area during the closure period, or to 
different times of the year when there is no closure. The affected 
vessels are capable of fishing outside of the closure area (i.e., in 
the WCPO) during the closure period and/or for the remainder of the 
year, since the fishery continues year round in the EPO, and vessels 
tend to use relatively short closures (such as these) for regular 
vessel maintenance. Fishing in the WCPO may produce additional costs to 
some of the affected vessels that are based out of the U.S. West Coast 
and primarily fish in the EPO due to the increase in costs associated 
with fishing further away from port. In addition, there is a FAD purse 
seine closure period in the WCPO from July 1 to September 30 in 2011 
that further constrains purse seine fishing effort in the WCPO. The 
closure may be extended into 2012 and beyond, depending on the tuna 
conservation and management measures that are adopted by the WCPFC at 
their annual meeting in December 2011.
    Other factors that have the potential to inhibit these vessels from 
fishing outside of the Convention Area include licensing availability 
and costs, and effort limits for purse seine vessels fishing in the 
WCPO. It is assumed that fishing in the WCPO is the only practical 
geographic alternative for these vessels. Purse seine vessels fishing 
in the WCPO under the South Pacific Tuna Treaty (SPTT) are required to 
license their vessels; the maximum number of licensed vessels allowed 
in the U.S. purse seine fishery in the WCPO is 40 and currently there 
are 37 licensed vessels as of September 2011. The vessel registration 
fee is about $3,250 per vessel. The five class size 6 purse seine 
vessels that are authorized to fish in the Convention Area are already 
registered under the SPTT. It may not be economically viable for the 
class size 5 purse seine vessels to register under the SPTT and fish in 
the WCPO because of the smaller carrying capacity and the increased 
costs associated with fishing far from port.
    In summary, one small business entity and five large business 
entities may be affected by the purse seine measures, thus small 
entities will not be disproportionately affected relative to large 
entities. In addition, the purse seine closure periods are not likely 
to have a significant impact on a substantial number of small entities 
because only one small business entity may be affected and it is 
estimated that its fishing effort will not change significantly from 
the status quo.
    This final rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) and which has been 
approved by the Office of Management and Budget (OMB) under control 
number 0648-0387. Reporting burden for purse seine vessel owners or 
managers when providing written notification (via fax) to NMFS 
declaring which purse seine closure period he or she will be adhering 
to in 2012 and 2013, is estimated to be 10 minutes per response, which 
includes the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information. Send comments regarding these 
burden estimates, or any other aspect of this data collection, 
including suggestions for reducing the burden, to NMFS (see ADDRESSES) 
and by email to OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 300

    Administrative practice and procedure, Antarctica, Canada, Exports, 
Fish, Fisheries, Fishing, Imports, Indians, Labeling, Marine resources, 
Reporting and recordkeeping requirements, Russian federation, 
Transportation, Treaties, Wildlife.

    Dated: October 31, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 300--INTERNATIONAL FISHERIES REGULATIONS

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

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


0
2. In Sec.  300.21, a definition of ``Data buoy'' is added, in 
alphabetical order, to read as follows:


Sec.  300.21  Definitions.

* * * * *
    Data buoy means, for the purpose of Sec.  300.25, a floating 
device, either drifting or anchored, which is deployed by one or more 
governmental or recognized scientific organizations or entities for the 
purpose of electronically collecting and measuring environmental data, 
and not for the purpose of fishing activities, and which has been 
reported to the IATTC by a Member or Cooperating non-Member of the 
Commission.
* * * * *

0
3. In Sec.  300.22, paragraph (b)(7)(ii) is revised to read as follows:


Sec.  300.22  Eastern Pacific fisheries recordkeeping and written 
reports.

* * * * *
    (b) * * *
    (7) * * *
    (ii) A purse seine vessel may be added to the Vessel Register and 
categorized as active in order to replace a vessel removed from active 
status under paragraph (b)(5) of this section, provided the total 
carrying capacity of the active vessels does not exceed 31,775 cubic 
meters and the owner submits a complete request under paragraph 
(b)(7)(iv) or (b)(7)(v) of this section.
* * * * *

0
4. In Sec.  300.24, paragraphs (e), (m) and (n) are revised, and new 
paragraphs (o) through (t) are added to read as follows:

[[Page 68338]]

Sec.  300.24  Prohibitions.

* * * * *
    (e) Fail to retain any bigeye, skipjack, or yellowfin tuna caught 
by a fishing vessel of the United States of class size 4-6 using purse 
seine gear in the Convention Area as required under Sec.  300.25(e)(1).
* * * * *
    (m) Fail to stow gear as required in Sec.  300.25(b)(4)(iv) or 
(f)(7).
    (n) Use a fishing vessel of class size 4-6 to fish with purse seine 
gear in the Convention Area in contravention of Sec.  300.25(f)(1), 
(f)(2), (f)(5), or (6).
    (o) Use a U.S. longline or purse seine fishing vessel used to fish 
for HMS within one nautical mile of an anchored data buoy while the 
fishing vessel is in the Convention Area in contravention of Sec.  
300.25(g)(1).
    (p) Use a U.S. fishing vessel used for fishing for HMS, or any 
gear, equipment, or watercraft deployed by such a fishing vessel, to 
interact with a data buoy in the Convention Area in contravention of 
Sec.  300.25(g)(2).
    (q) Remove from the water a data buoy and place it on board or tow 
a data buoy with a U.S. fishing vessel used for fishing for HMS while 
the vessel is in the Convention Area without authorization by the owner 
of the data buoy or the owner's authorized representative in 
contravention of Sec.  300.25(g)(3).
    (r) In the event of an entanglement of a data buoy with a U.S. 
fishing vessel, or its fishing gear, equipment, or associated 
watercraft, used for fishing for HMS in the Convention Area, fail to 
promptly remove the data buoy with as little damage to the data buoy 
and its mooring and anchor lines as possible, in contravention of Sec.  
300.25(g)(4).
    (s) Fail to take all reasonable measures to avoid fishing gear 
entanglement or interaction with drifting data buoys in contravention 
of Sec.  300.25(g)(5).
    (t) Use a U.S. fishing vessel to fish for HMS in the Convention 
Area and retain onboard, transship, land, store, sell, or offer for 
sale any part or whole carcass of an oceanic whitetip shark 
(Carcharhinus longimanus) or fail to release unharmed, to the extent 
practicable, all oceanic whitetip sharks when brought alongside the 
vessel in contravention of Sec.  300.25(e)(4).

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

Sec.  300.25  Eastern Pacific fisheries management.

* * * * *
    (b) Tuna quotas in the longline fishery in the Convention Area. (1) 
Fishing seasons for all tuna species begin on January 1 and end either 
on December 31 or when NMFS closes the fishery for a specific species.
    (2) For each of the calendar years 2011, 2012, and 2013, there is a 
limit of 500 metric tons of bigeye tuna that may be captured and landed 
by longline gear in the Convention Area by fishing vessels of the 
United States that are over 24 meters in overall length.
    (3) NMFS will monitor bigeye tuna landings with respect to the 
limit established under paragraph (b)(2) of this section using data 
submitted in logbooks and other available information. After NMFS 
determines that the limit in any year is expected to be reached by a 
specific future date, and at least 7 calendar days in advance of that 
date, NMFS will publish a notice in the Federal Register announcing 
that the limit has been reached and that the restrictions described in 
paragraph (b)(4) of this section will be in effect through the end of 
the calendar year.
    (4) Once an announcement is made pursuant to paragraph (b)(3) of 
this section, the following restrictions will apply during the period 
specified in the announcement:
    (i) A fishing vessel of the United States over 24 meters in overall 
length may not be used to retain on board, transship, or land bigeye 
tuna captured by longline gear in the Convention Area, except as 
follows:
    (A) Any bigeye tuna already on board a fishing vessel upon the 
effective date of the prohibitions may be retained on board, 
transshipped, and/or landed, to the extent authorized by applicable 
laws and regulations, provided that they are landed within 14 days 
after the prohibitions become effective.
    (B) In the case of a vessel that has declared to NMFS, pursuant to 
Sec.  665.23(a) of this title, that the current trip type is shallow-
setting, the 14-day limit is waived, but the number of bigeye tuna 
retained on board, transshipped, or landed must not exceed the number 
on board the vessel upon the effective date of the prohibitions, as 
recorded by the NMFS observer on board the vessel.
    (ii) Bigeye tuna caught by longline gear used on a vessel of the 
United States over 24 meters in overall length in the Convention Area 
may not be transshipped to a fishing vessel unless that fishing vessel 
is operated in compliance with a valid permit issued under Sec.  
660.707 or Sec.  665.21 of this title.
    (iii) A fishing vessel of the United States over 24 meters in 
overall length, other than a vessel for which a declaration has been 
made to NMFS, pursuant to Sec.  665.23(a) of this title, that the 
current trip is shallow-setting, may not be used to fish in the Pacific 
Ocean using longline gear both inside and outside the Convention Area 
during the same fishing trip, with the exception of a fishing trip 
during which the prohibitions were put into effect as announced under 
paragraph (b)(3) of this section.
    (iv) If a fishing vessel of the United States over 24 meters in 
overall length--other than a vessel for which a declaration has been 
made to NMFS, pursuant to Sec.  665.23(a) of this title, that the 
current trip type is shallow-setting--is used to fish in the Pacific 
Ocean using longline gear outside the Convention Area and the vessel 
enters the Convention Area at any time during the same fishing trip, 
the longline gear on the fishing vessel must be stowed in a manner so 
as not to be readily available for fishing; specifically, the hooks, 
branch or dropper lines, and floats used to buoy the mainline must be 
stowed and not available for immediate use, and any power-operated 
mainline hauler on deck must be covered in such a manner that it is not 
readily available for use.
* * * * *
    (e) Bycatch reduction measures. (1) As of January 1, 2012, bigeye, 
skipjack, and yellowfin tuna caught in the Convention Area by a fishing 
vessel of the United States of class size 4-6 (more than 182 metric 
tons carrying capacity) using purse seine gear must be retained on 
board and landed, except for fish deemed unfit for human consumption 
for reasons other than size. This requirement shall not apply to the 
last set of a trip if the available well capacity is insufficient to 
accommodate the entire catch.
* * * * *
    (4) The crew, operator, or owner of a fishing vessel of the United 
States used to fish for HMS in the Convention Area shall be prohibited 
from retaining onboard, transshipping, landing, storing, selling, or 
offering for sale any part or whole carcass of an oceanic whitetip 
shark (Carcharhinus longimanus) and must release unharmed, to the 
extent practicable, all oceanic whitetip sharks when brought alongside 
the vessel.
    (f) Purse seine closures in the Convention Area. (1) A fishing 
vessel of the United States of class size 4-6 (more than 182 metric 
tons carrying capacity) may not be used to fish with purse seine gear 
in the Convention Area for 62 days in each of the years 2011, 2012, and 
2013 during one of the following two periods:

[[Page 68339]]

    (i) From 0000 hours on July 29 to 2400 hours on September 18, or
    (ii) From 0000 hours on November 18 to 2400 hours on January 18 of 
the following year.
    (2) For 2011, all U.S. purse seine vessels subject to the 
requirements under paragraph (f)(1) of this section shall adhere to the 
closure period under paragraph (f)(1)(ii) of this section.
    (3) A vessel owner of a vessel that is subject to the requirements 
under paragraph (f)(1) of this section must in 2012 and 2013 provide 
written notification to the Regional Administrator declaring which one 
of the two closure periods identified in paragraph (f)(1) of this 
section to which his or her vessel will adhere in that year. This 
written notification must be submitted by fax at (562) 980-4047 or mail 
(see Sec.  300.21 of this chapter) and must be received no later than 
July 1 in each of the years 2012 and 2013. The written notification 
must include the vessel name and registration number, the closure dates 
that will be adhered to by that vessel, and the vessel owner or 
managing owner's name, signature, business address, and business 
telephone number.
    (4) If written notification is not submitted per paragraph (f)(3) 
of this section for a vessel subject to the requirements under 
paragraph (f)(1) of this section, that vessel must adhere to the 
closure period under paragraph (f)(1)(ii) of this section.
    (5) A vessel of class size 4 (182 to 272 metric tons carrying 
capacity) may make one fishing trip of up to 30 days duration during 
the specified closure period, provided that the vessel carries an 
observer of the On-Board Observer Program of the Agreement on the 
International Dolphin Conservation Program during the entire fishing 
trip.
    (6) A fishing vessel of the United States of class size 4-6 (more 
than 182 metric tons carrying capacity) may not be used from 0000 hours 
on September 29 to 2400 hours on October 29 in the years 2012 and 2013 
to fish with purse seine gear within the area bounded at the east and 
west by 96[deg] and 110[deg]W. longitude and bounded at the north and 
south by 4[deg]N. and 3[deg]S. latitude.
    (7) At all times while a vessel is in a Closed Area established 
under paragraphs (f)(1) or (f)(6) of this section, the fishing gear of 
the vessel must be stowed in a manner as not to be readily available 
for fishing. In particular, the boom must be lowered as far as possible 
so that the vessel cannot be used for fishing, but so that the skiff is 
accessible for use in emergency situations; the helicopter, if any, 
must be tied down; and launches must be secured.
    (g) Restrictions on fishing in proximity to data buoys. (1) A 
longline or purse seine fishing vessel of the United States may not be 
used to fish for HMS within one nautical mile of an anchored data buoy 
in the Convention Area. The one-nautical-mile distance shall be 
measured from the data buoy to the nearest portion of the fishing 
vessel or items associated with the fishing vessel, such as gear or 
watercraft deployed by the fishing vessel, to the data buoy. This 
prohibition shall not apply if and when the fishing vessel is operated 
as part of a scientific research program that has received specific 
authorization by the IATTC or is conducting work on behalf of the 
IATTC.
    (2) A fishing vessel of the United States used to fish for HMS, or 
any fishing gear, equipment, or watercraft deployed by such a fishing 
vessel, may not be used to interact with a data buoy while the fishing 
vessel is in the Convention Area. Interact with a data buoy means to 
engage in conduct that could impair the functioning of a data buoy 
through actions that include but that are not limited to the following: 
encircling the buoy with fishing gear; tying up to or attaching the 
vessel, or any fishing gear, part or portion of the fishing vessel, 
including equipment such as watercraft, to a data buoy or its mooring; 
or cutting a data buoy anchor line.
    (3) A vessel operator, crew member, or other persons on board a 
fishing vessel of the United States that is used to fish for HMS may 
not remove a data buoy or any parts thereof from the water and place it 
on board the fishing vessel or tow a data buoy when in the Convention 
Area unless authorized to do so by the owner of the data buoy or an 
authorized representative or agent of the owner. When practicable, 
advance written authorization must be available onboard a U.S. fishing 
vessel that has taken on board or tows a data buoy. In all other cases, 
a written document (e.g., fax, email) verifying the authorization must 
be obtained by the vessel owner or operator within 15 days of landing.
    (4) In the event that a fishing vessel of the United States that is 
used to fish for HMS or any of its fishing gear, equipment, or 
associated watercraft, becomes entangled with a data buoy while the 
fishing vessel is in the Convention Area, the owner and operator of the 
fishing vessel must promptly remove the entangled fishing vessel, 
fishing gear, equipment, or associated watercraft with as little damage 
to the data buoy and its mooring and anchor lines as possible.
    (5) A vessel operator, crew member, or other persons on board a 
fishing vessel of the United States that is used to fish for HMS must 
take all reasonable measures to avoid fishing gear entanglement or 
interaction with drifting data buoys.

[FR Doc. 2011-28661 Filed 11-3-11; 8:45 am]
BILLING CODE 3510-22-P