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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 300
          - [Docket No. 100311144-0623-02]
          - RIN 0648-AY75

# AGENCY:

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

# ACTION:

Final rule.

# SUMMARY:

NMFS hereby issues regulations under the Tuna Conventions Act of 1950 (Act), as amended, for the U.S. purse seine fishery operating in the eastern Pacific Ocean (EPO) to make U.S. regulations more consistent with the Inter-American Tropical Tuna Commission (IATTC) Resolution on the Capacity of the Tuna Fleet Operating in the Eastern Pacific Ocean. These revisions will ensure that the United States satisfies its obligations under the Tuna Conventions Act while allowing controlled operational flexibility for the U.S. industry consistent with the IATTC management framework.

# DATES:

These regulations become effective on February 3, 2011.

# ADDRESSES:

                        Copies of supporting documents that were prepared for this final rule, including the environmental                               ( print page 284)                            assessment (EA), the small entity compliance guide, and the proposed rule, are available via the Federal e-Rulemaking portal, at                         *http://www.regulations.gov.*                         Those documents are also available from the Regional Administrator, Rodney R. McInnis, NMFS Southwest Regional Office, 501 W. Ocean Boulevard, Suite 4200, Long Beach, CA 90802. The initial regulatory flexibility analysis (IRFA) and final regulatory flexibility analysis (FRFA) prepared for this rule are included in the proposed rule and this final rule, respectively. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to the NMFS Southwest Regional Office and by e-mail to                         *OIRA_Submission@omb.eop.gov,*                         or faxed to (202) 395-7285.                    

# FOR FURTHER INFORMATION CONTACT:

Heidi Hermsmeyer, NMFS SWR, 562-980-4036.

# SUPPLEMENTARY INFORMATION:

                    On September 3, 2010, NMFS published a proposed rule in the                     **Federal Register**                     (75 FR 54078) that would revise regulations at 50 CFR part 300, subpart C, in order to implement certain decisions of the IATTC. The proposed rule was open to public comment through October 4, 2010.                

                    As a Contracting Party to the 1949 Convention for the Establishment of an Inter-American Tropical Tuna Commission (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*et seq.*) authorizes the Secretary of Commerce, in consultation with the Secretary of State and the Secretary of the Department in which the United States Coast Guard (USCG) is operating (currently the Department of Homeland Security), to promulgate such regulations as may be necessary to carry out the obligations of the United States under the Convention, including the decisions of the IATTC. The Secretary of Commerce has delegated the authority to promulgate regulations to NMFS.                

## IATTC Decisions Regarding Capacity in the Purse Seine Fishery

                    At its sixty-ninth annual meeting in June 2002, the IATTC adopted the Resolution on the Capacity of the Tuna Fleet Operating in the Eastern Pacific Ocean (Resolution C-02-03) to address the problem of excess capacity in the tuna purse-seine fleet operating in the EPO by limiting the capacity to a level which would ensure that tuna fisheries in the region are sustainable. The resolution, available with other decisions of the IATTC at                     *http://www.iattc.org/​ResolutionsActiveENG.htm,*                     places certain obligations on the IATTC's members and cooperating non-members. Resolution C-02-03 replaced the previous Resolution on Fleet Capacity adopted at the sixty-second annual meeting of the IATTC in October 1998 (Resolution C-98-11). Resolution C-02-03 established a total vessel capacity limit of 158,000 cubic meters for all vessels authorized by the IATTC to fish for tuna species in the EPO. Each member and cooperating non-member was allocated a vessel capacity limit by the IATTC based on historical fishing levels in the EPO. The resolution included provisions that, among other things, prohibited the entry of new vessels to the EPO purse seine fleet, except to replace vessels removed from the Vessel Register, and prohibited the increase of the capacity of any existing purse seine vessel unless a purse seine vessel or vessels of equal or greater capacity is removed from the Vessel Register.                

The proposed rule included further background information, including information on the Convention and the IATTC, the international obligations of the United States under the Convention, and the basis for this action.

## New Requirements

This final rule establishes the following requirements:

(1) A vessel capacity limit for the U.S. purse seine fleet fishing for tuna and operating in the EPO of 31,775 cubic meters.

                    When Resolution C-02-03 was adopted, the United States was authorized to have a total of 39,228 cubic meters of total well volume capacity in the purse seine fishery, as well as a provision that allowed up to 32 U.S. purse seine vessels that regularly operate in the western and central Pacific Ocean (WCPO) to make one trip per year in the EPO without being included on the IATTC Vessel Register. However, for reasons prevailing at the time regarding the IATTC's consideration of implementing a capacity management regime, the United States chose to further limit its fleet capacity by maintaining the U.S. fleet capacity limit established under paragraph 1 of Resolution C-98-11, which had been replaced by Resolution C-02-03. Thus, on April 12, 2005, a final rule was published in the                     **Federal Register**                     (70 FR 19004), which, among other things, established a fleet capacity limit of 8,969 mt. This level reflected the actual level of the fishing capacity of the U.S. tuna purse seine fleet operating in the EPO at the time the measure was adopted. In August 2002, the U.S. Department of State notified the IATTC of the smaller limit that NMFS chose to impose on the U.S. fleet. Since that time, the actual level of fishing effort by the United States in the EPO has remained well below even this self imposed limit. Even so, some U.S. vessels that would like the flexibility to participate in the fishery have been prevented from doing so. Due to removals and additions of vessels from the Vessel Register, currently the United States is authorized by the IATTC to have up to 31,775 cubic meters of carrying capacity in the purse seine fleet.                

(2) All purse seine vessels, regardless of size, must be on the Vessel Register and categorized as active under 50 CFR 300.22(b)(1)(ii), paragraph (b)(4)(i) in order to be authorized to fish for tuna in the IATTC Convention Area.

This rule removes the exemption that allowed smaller vessels (class sizes 1-5) to opportunistically fish for tuna species in the EPO without being listed on the IATTC Vessel Register. These vessels will now be required to apply to be on the Vessel Register every year if they anticipate fishing for tunas; however, there is no associated cost for registering to be on the IATTC Vessel Register because there are no IATTC observer requirements for vessels under class size 6. This regulatory amendment is necessary because the IATTC Resolution on a Vessel Register (Resolution C-00-06) requires all vessels to provide the IATTC with applicable vessel information and be listed on the IATTC Vessel Register in order to be authorized to fish in the IATTC Convention Area for species under the purview of the IATTC.

(3) Purse seine vessels that are class size 5 and under (363 cubic meter carrying capacity or less) that primarily fish for coastal pelagic species off the west coast of the United States are exempt from the frivolous request provisions for active status at 50 CFR 300.22(b)(4)(ii).

                    The frivolous request provisions essentially provide a disincentive to vessels that apply to be on the vessel register and do not fish for tuna in the EPO by putting them at the bottom of the hierarchy when applying to be on the vessel register the following year. These provisions are meant to discourage vessel owners who do not have any intent to fish in the Convention Area from applying to be on the vessel register and occupying assigned capacity. By this final rule, the smaller vessels are now exempt from these provisions because it would be difficult, if not impossible, for the vessel                           ( print page 285)                        owners to anticipate whether unassociated schools of tuna would come within their range off the U.S. west coast during the summer and fall months in a given year.                

(4) Capacity measurements must also be reported in cubic meters.

Including capacity measurements in cubic meters as well as metric tons is an administrative change. Since 2000, the IATTC has used well volume, in cubic meters, instead of weight, in metric tons, to measure the carrying capacities of vessels. Because a well can be loaded with different densities of fish, measuring carrying capacity in weight is subjective, as a load of fish packed into a well at a higher density weighs more than a load of fish packed at a lower density. Using volume as a measure of capacity eliminates this variability and standardizes measurements. The IATTC staff began collecting capacity data by volume in 1999, but has not yet obtained this information for all vessels. For vessels for which reliable information on well volume is not available, NMFS will calculate the estimated cubic meters of well volume using the estimated fish hold capacity at no cost to the vessel owner. This calculation will be based on a vessel's landings history in metric tons and a conversion factor used by the IATTC (1.1705 cubic meters to 1 metric ton). Alternatively, vessel owners can opt to have a maritime surveyor assess the vessel capacity in cubic meters; however, this is not required. Switching to cubic meter measurements will benefit the IATTC and make measurements less subjective.

These revisions ensure that the United States is satisfying its obligations under the Tuna Conventions Act and not exceeding its allotted capacity in the purse seine fishery. Furthermore, they lessen the regulatory constraints on the U.S. industry to allow activity by U.S. vessels within the IATTC capacity limits.

## Response to Comments

                    There was a 30-day public comment period during which comments could be submitted electronically via the Federal e-Rulemaking portal, at                     *http://www.regulations.gov,*                     or by mail. There was also a public hearing on September 9, 2010, from 9 a.m. to 12 p.m. in Long Beach, CA. NMFS received three public comments during the comment period. One substantive comment, summarized below, from the American Tunaboat Association supported the action; one anonymous comment expressed a general objection to fishing and this action in particular; and one letter submitted by the United States Department of the Interior (DOI) stated that the proposed rule had been reviewed by the DOI and the DOI had no comments to offer. Three individuals participated in the public hearing via teleconference. No substantive issues were discussed during the public hearing. Most participants only asked procedural questions about the proposed rule and did not make substantive comments for the record. No one expressed opposition to the proposed action at the public hearing.                

*Comment 1:*                     The American Tunaboat Association represents all of the U.S. flag Class 6 purse seiners operating in the Pacific Ocean. They gave their “full support” for the procedures presented in the proposed rule. They “believe that this proposal properly reflects the rights of the U.S. purse seine fleet and the U.S. government.” They suggested “that the NMFS may want to review, or establish alternate procedures for the calculation of the cubic meters of capacity for purse seine vessels operating in the Eastern Pacific.”                

*Response:*                     NMFS acknowledges this comment in support of the action. In regards to the suggestion that NMFS review or establish alternate procedures for the calculation of the well volume in cubic meters of capacity for purse seine vessels, NMFS would like to clarify that currently there are two methods NMFS can use to calculate the well volume of a vessel in cubic meters. By default, for vessels that do not already have reliable information on well volume, NMFS will calculate the estimated cubic meters of well volume using the estimated fish hold capacity based on a vessel's landings history in metric tons and a conversion factor used by the IATTC (1.1705 cubic meters to 1 metric ton) at no cost to the vessel owner. If vessel owners prefer, they can opt to have a maritime surveyor assess the vessel capacity of the well volume in cubic meters; however, this is not necessary.                

## Changes From the Proposed Rule

The wording of § 300.22(b)(1), which allows 32 once-per-year fishing trips in the ETP for South Pacific Tuna Treaty purse seine vessels without being added to the IATTC's Vessel Register, is revised in this final rule to clarify that the exception applies to each vessel that fishes in compliance with the 90-day limit and other requirements of the regulations. The previous wording could have been read to mean that the 90-day and other conditions were imposed on the vessels as a group. Furthermore, a process is established under which NMFS would communicate to the rest of the fleet when all 32 one-time trips have been used, so they know that no more trips are available under this exception. Although no more than a handful of these 32 trips have been used in any calendar year in the past, if all 32 trips were used in a single year in the future, due process requires NMFS notify the owners of the vessels that would otherwise be eligible to make such trips so they know the option is no longer available for the year.

There are no other changes to the regulatory text of the proposed rule.

## Classification

The NMFS Assistant Administrator has determined that this final rule is consistent with the Tuna Conventions Act and other all applicable laws.

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

                    A final regulatory flexibility analysis (FRFA) was prepared. The FRFA incorporates the IRFA and a summary of the analyses completed to support the action. No public comments were received on the IRFA or on the economic impacts of the rule generally. A copy of the IRFA is available from NMFS (                    *see***ADDRESSES**                    ).                

                    A description of the action, why it is being considered, and the legal basis for this action are contained in the preamble and                     **SUMMARY**                     section of the proposed rule. There are no disproportionate economic impacts between small and large vessels resulting from this rule. Furthermore, there are no disproportionate economic impacts from this rule based on vessel size, gear, or homeport. Other compliance requirements are described in the IRFA. This rule is issued under authority of the Tuna Conventions Act.                

### Description of Small Entities to Which the Rule Will Apply

                    The total number of affected purse seine vessels is approximated by the current number of U.S. purse seine vessels authorized to fish in the IATTC Convention Area and the number of vessels that have the potential to enter the fishery as a result of this action. As of October 2010, there were two U.S purse seine vessels listed on the IATTC Vessel Register and authorized to fish in the Convention Area totaling 1,194 mt carrying capacity; this does not include small vessels which are exempt from the requirement to be listed on the Vessel Register. One of the large vessels is class size 6 (greater than 363 mt carrying capacity) and one is class size 5 (273-363 metric tons carrying capacity). In 2009, there were eight small purse seine vessels that were exempt from being listed on the IATTC Vessel Register and                           ( print page 286)                        made landings of tuna in the EPO; these vessels amount to an estimated 1,000 mt of carrying capacity are class size 1-2 vessels. Thus, it is estimated that the current U.S. vessel capacity, including small vessels, is about 2,200 mt. Although this modification provides additional flexibility to the U.S. fleet, NMFS believes it is unlikely that this action will lead to a substantial increase in effort in the purse seine fishery operating in the EPO.                

Increasing the total aggregate carrying capacity of the purse seine fleet to 31,775 cubic meters (or about 27,147 mt) allows for about 20 or fewer large vessels, depending on the size of the individual vessels and the number of small vessels participating in the fishery, to be on the Vessel Register and participate in the fishery (this estimate is based on the average carrying capacity of U.S. vessels operating in the WCPO, or 1,487 cubic meters). It is estimated that at most, 10-15 small vessels may opt to be on the Vessel Register. It is estimated that the majority of the vessels that have the potential to enter the fishery are class size 6 vessels based on current and historical participation in the EPO and WCPO purse seine fisheries.

Class size 6 purse seine vessels 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. Class size 6 vessels are required to have 100 percent observer coverage. They are categorized as large business entities (revenues in excess of $4 million per year) and typically generate about 4,000 to 5,000 mt of tuna valued at about $4 to $5 million per year. Class size 5 vessels are not required to carry an observer. Purse seine vessels class size 5 or smaller are considered small business entities (revenues equal to or less than $4 million per year) and it is estimated that from 2004-2008, the majority, if not all, of these smaller vessels had revenues of less than $0.5 million per year.

The final rule will increase the opportunity for all U.S. purse seine vessels, regardless of size, to register to be on the IATTC Vessel Register and participate in the fishery targeting tunas in the EPO. This rule also removes the current exemption that allows smaller vessels (class sizes 1-5) to opportunistically fish for tuna species in the EPO without being listed on the IATTC Vessel Register. As previously mentioned, these vessels will now be required to apply to be on the Vessel Register every year if they anticipate fishing for tunas; however, there is no associated cost for registering to be on the IATTC Vessel Register because there are no IATTC observer requirements for vessels under class size 6. Although these smaller vessels are required to be listed on the IATTC Vessel Register, they are exempt from the frivolous request provisions. The smaller vessels are exempt because it would be difficult, if not impossible, for the vessel owners to anticipate whether schools of tuna would become available off the U.S. west coast during the summer and fall months in a given year. In addition, using cubic meters rather than metric tons is not likely to negatively affect small business entities as it is an administrative change, which will not have any associated costs.

### Steps Taken To Minimize the Economic Impact on Small Business Entities

NMFS compared the effects of the proposed rule to three alternatives, including a no action alternative. Alternative 1 would have been the same as the preferred alternative; however, the Vessel Register list exemption for small purse seine vessels at 50 CFR 300.22(b)(1)(ii) would not have been removed, and the frivolous request regulations would not have been amended. Thus, Alternative 1 would have increased the U.S. vessel carrying capacity limit for the purse seine fishery operating in the EPO to 31,775 cubic meters, the capacity measurements would have been changed to cubic meter measurements, and small purse seine vessels for which landings of tuna caught in the Convention Area comprise 50 percent or less of the vessel's total landings, by weight, for a given calendar year, would have continued to be exempt from the requirement to be on the Vessel Register. The effects of this alternative on small business entities would have been similar to those described for the proposed action, except small purse seine vessels would have continued to be exempt from the requirement to be on the Vessel Register. If Alternative 1 had been adopted, the United States would have maintained U.S. regulations that are less consistent with IATTC Resolution C-00-06 because not all vessels operating in the Convention Area would be on the IATTC Vessel Register.

Alternative 2 would have revised the current regulations to give NMFS the discretion to revise the current 8,969 mt (10,498 cubic meters) vessel capacity limit in the future up to the amount authorized under resolutions adopted by the IATTC (currently 31,775 cubic meters) based on specific criteria. However, the vessel capacity limit would not have been increased upon approval of the action because, as noted earlier, there currently appears to be limited demand for additional vessel capacity. The capacity measurements would have been amended to be in cubic meter measurements and small purse seine vessels for which landings of tuna caught in the Convention Area comprise 50 percent or less of the vessel's total landings, by weight, for a given calendar year, would have continued to be exempt from the requirement to be on the Vessel Register. The impacts to small business entities would have been similar to those described under Alternative 1 with respect to not removing the exemption for small vessels. Alternative 2 did not necessarily increase the current carrying capacity in the purse seine fishery, so this could have been disadvantageous to large and some small business entities that were not exempt from being listed on the Vessel Register if the current vessel capacity were reached in a given year and they were not able to participate in the fishery due to a lack of available capacity.

Under Alternative 3, the no action alternative, there would have been no changes to the current regulations for the purse seine fishery which targets tuna species in the EPO. The purse seine vessel capacity limit would have remained at 8,969 mt, the capacity measurements would have remained in metric tons, and small purse seine vessels for which landings of tuna caught in the Convention Area comprise 50 percent or less of the vessel's total landings, by weight, for a given calendar year, would have continued to be exempt from the requirement to be on the Vessel Register. Under this alternative, the United States would have maintained U.S. regulations that are less consistent with IATTC Resolution C-00-06 because small vessels that occasionally fish for tunas would not have been included on the Vessel Register. In addition, U.S. regulations would have continued constraining the carrying capacity limit beyond what is authorized by the IATTC and would have therefore limited the opportunity for U.S. businesses to participate in the fishery.

                    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.                           ( print page 287)                        As part of this rulemaking process, a small entity compliance guide was prepared. Copies of this final rule are available from the Southwest Regional Office (                    *see***ADDRESSES**                    ), and the guide will be sent to all purse seine vessel owners that have fished for tuna in the IATTC Convention area since 2005. The guide and this final rule will be available upon request.                

                    This rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by OMB under control number 0648-0387. Public reporting burden for Vessel Register annual notification is estimated to average 35 minutes per response, including 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 this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (                    *see***ADDRESSES**                    ) and by e-mail 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.

                    NMFS prepared an Environmental Assessment (EA) on these regulations. A copy of the final EA is available from NMFS (                    *see***ADDRESSES**                    ) or at:                     *http://swr.nmfs.noaa.gov*.                

# 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: December 28, 2010.

Eric C. Schwaab,

Assistant Administrator for Fisheries, National Marine Fisheries Service.

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

# PART 300—INTERNATIONAL FISHERIES REGULATIONS

# Subpart C—Eastern Pacific Tuna Fisheries

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

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

2. Revise the heading for 50 CFR part 300, subpart C, to read as set forth above.

§ 300.21 

3. In § 300.21, remove the definition of “Commission's Yellowfin Regulatory Area (CYRA).” 

4. In § 300.22, revise paragraphs (b)(1), (b)(3), (b)(4)(i)(A), and (b)(4)(ii) to read as follows: 

§ 300.22 

* * * * *

(b)  * * * 

                            (1)                             *Exception.*                             Once per year, a vessel that is licensed under the South Pacific Tuna Treaty may exercise an option to fish with purse seine gear to target tuna in the Convention Area without being listed on the Vessel Register, for a fishing trip that does not exceed 90 days in duration. No more than 32 of such trips are allowed each calendar year. After the commencement of the 32nd such trip, the Regional Administrator shall announce, in the                             **Federal Register**                             and by other appropriate means, that no more such trips are allowed for the remainder of the calendar year. Under § 216.24(b)(6)(iii)(C) of this title, vessel assessment fees must be paid for vessels exercising this option.                        

* * * * *

                            (3)                             *Vessel information.*                             Information on each commercial fishing vessel or CPFV authorized to use purse seine, longline, drift gillnet, harpoon, troll, rod and reel, or pole and line fishing gear to fish for tuna and tuna-like species in the Convention Area for sale shall be collected by the Regional Administrator to conform to IATTC resolutions governing the Vessel Register. This information initially includes, but is not limited to, the vessel name and registration number; the name and business address of the owner(s) and managing owner(s); a photograph of the vessel with the registration number legible; previous vessel name(s) and previous flag (if known and if any); port of registry; International Radio Call Sign; vessel length, beam, and moulded depth; gross tonnage, fish hold capacity in cubic meters, and carrying capacity in metric tons and cubic meters; engine horsepower; date and place where built; and type of fishing method or methods used. The required information shall be collected as part of existing information collections as described in this and other parts of the CFR.                        

(4)  * * * 

(i)  * * * 

(A) The cumulative carrying capacity of all purse seine vessels categorized as active on the Vessel Register may not exceed 31,775 cubic meters in a given year;

* * * * *

                            (ii)                             *Frivolous requests for active status.*                            —(A) Except as described under paragraph (b)(4)(ii)(B) of this section, requests for active status under paragraph (b)(4)(i) of this section will be considered frivolous if, for a vessel categorized as active in a given calendar year:                        

                            (                            *1*) Less than 20 percent of the vessel's total landings, by weight, in that same year is comprised of tuna harvested by purse seine in the Convention Area; or                        

                            (                            *2*) The vessel did not fish for tuna at all in the Convention Area in that same year.                        

                            (B)                             *Exceptions.*                             Requests described under paragraph (b)(4)(ii)(A) of this section will not be considered frivolous requests if:                        

                            (                            *1*) The vessel's catch pattern fell within the criteria described in pargraph (b)(4)(ii)(A) as a result of force majeure or other extraordinary circumstances as determined by the Regional Administrator; or                        

                            (                            *2*) The vessel's carrying capacity is 400 st (362.8 mt) or less and landings of tuna caught by the vessel in the Convention Area comprise 50 percent or less of the vessel's total landings, by weight, for a given calendar year.                        

* * * * *

[FR Doc. 2010-33228 Filed 1-3-11; 8:45 am]

BILLING CODE 3510-22-P