38544 Federal Register / Vol. 74, No. 148 / Tuesday, August 4, 2009 / Rules and Regulations 

* * * * * 

§ 52.2540 [Removed and Reserved] 

■ 3. Section 52.2540 is removed and 

reserved. 

§ 52.2541 [Removed and Reserved] 

■ 4. Section 52.2541 is removed and 

reserved. 

[FR Doc. E9–18536 Filed 8–3–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 300 

[Docket No. 090130104–91027–02] 

RIN 0648–AX60 

International Fisheries; Western and 

Central Pacific Fisheries for Highly 

Migratory Species; Fishing 

Restrictions and Observer 

Requirements in Purse Seine Fisheries 

for 2009–2011 and Turtle Mitigation 

Requirements in Purse Seine Fisheries 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues regulations 

under authority of the Western and 

Central Pacific Fisheries Convention 

Implementation Act (WCPFC 

Implementation Act) to implement 

certain decisions of the Commission for 

the Conservation and Management of 

Highly Migratory Fish Stocks in the 

Western and Central Pacific Ocean 

(WCPFC). Those decisions require that 

the members of the WCPFC, including 

the United States, take certain measures 

with respect to their purse seine 

fisheries in the area of competence of 

the WCPFC, which includes most of the 

western and central Pacific Ocean 

(WCPO). The regulations include limits 

on the number of days that may be 

fished, periods during which fishing 

may not be done on schools in 

association with fish aggregating devices 

(FADs), areas of high seas closed to 

fishing, requirements to retain tuna on 

board up to the first point of landing or 

transshipment, requirements to carry 

observers, and requirements to handle 

sea turtles in a specified manner. This 

action is necessary for the United States 

to satisfy its international obligations 

under the Convention on the 

Conservation and Management of 

Highly Migratory Fish Stocks in the 

Western and Central Pacific Ocean 

(Convention), to which it is a 

Contracting Party. 

DATES: The rule is effective August 3, 

2009, except for the amendments to 

§§ 300.222(aa) and 300.223(f), which are 

effective October 5, 2009. 

ADDRESSES: Copies of supporting 

documents that were prepared for this 

final rule, including the regulatory 

impact review (RIR) and environmental 

assessment (EA), as well as the 

proposed rule, are available via the 

Federal e-Rulemaking portal, at 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 June 1, 2009, NMFS published a 

proposed rule in the Federal Register 

(74 FR 26160) that would revise 

regulations at 50 CFR part 300, subpart 

O, in order to implement certain 

decisions of the WCPFC. The proposed 

rule was open to public comment 

through June 22, 2009. 

This final rule is implemented under 

authority of the WCPFC Implementation 

Act (16 U.S.C. 6901 et seq.), which 

authorizes the Secretary of Commerce, 

in consultation with the Secretary of 

State and the Secretary of the 

Department in which the United States 

Coast Guard is operating (currently the 

Department of Homeland Security), to 

promulgate such regulations as may be 

necessary to carry out the obligations of 

the United States under the Convention, 

including the decisions of the WCPFC. 

The authority to promulgate regulations 

has been delegated to NMFS. 

The objective of this final rule is to 

implement, with respect to U.S. purse 

seine vessels, two Conservation and 

Management Measures (CMM) adopted 

by the WCPFC in December 2008, at its 

Fifth Regular Annual Session. The first 

is CMM 2008–01, ‘‘Conservation and 

Management Measure for Bigeye and 

Yellowfin Tuna in the Western and 

Central Pacific Ocean’’ The second is 

CMM 2008–03, ‘‘Conservation and 

Management of Sea Turtles.’’ 

The proposed rule includes further 

background information, including 

information on the Convention and the 

WCPFC, the international obligations of 

the United States under the Convention, 

the provisions of CMM 2008–01 and 

CMM 2008–03 as they relate to purse 

seine vessels, and the basis for the 

proposed regulations. 

New Requirements 

This final rule establishes the 

following requirements: 

(1) Fishing Effort Limits 

Limits are established for 2009 

through 2011 on the number of fishing 

days that may be spent by the U.S. purse 

seine fleet on the high seas and in areas 

under U.S. jurisdiction (including the 

U.S. exclusive economic zone, or EEZ) 

within the Convention Area. First, there 

is a limit of 7,764 fishing days for the 

entire three-year 2009–2011 period. 

Second, there is a limit of 6,470 fishing 

days for each of the two-year periods 

2009–2010 and 2010–2011. Third, there 

is a limit of 3,882 fishing days for each 

of the one-year periods 2009, 2010, and 

2011. Once NMFS determines during 

any of these time periods that, based on 

information collected in vessel logbooks 

and other sources, the limit is expected 

to be reached by a specific future date, 

NMFS will issue a notice in the Federal 

Register announcing the closure of the 

purse seine fishery in the Convention 

Area on the high seas and in areas of 

U.S. jurisdiction, starting on that 

specific future date until the end of the 

applicable time period. Upon closure of 

the fishery, it will be prohibited to use 

a U.S. purse seine vessel to fish in the 

Convention Area on the high seas or in 

areas under U.S. jurisdiction, effective 

until the end of the applicable time 

period. NMFS will publish the notice at 

least seven calendar days before the 

effective date of the closure to provide 

fishermen advance notice of the closure. 

(2) FAD Prohibition Periods 

During specified periods in each of 

the years 2009, 2010, and 2011 it will 

be prohibited to set purse seines around 

FADs, deploy FADs, or service FADs or 

their associated electronic equipment in 

the Convention Area. It will be 

prohibited during these periods to set a 

purse seine within one nautical mile of 

a FAD or to set a purse seine in a 

manner intended to capture fish that 

have aggregated in association with a 

FAD, such as by setting the purse seine 

in an area from which a FAD has been 

moved or removed within the previous 

eight hours or setting the purse seine in 


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an area into which fish were drawn by 

a vessel from the vicinity of a FAD. 

FADs are defined to include both 

artificial and natural floating objects 

that are capable of aggregating fish. In 

2009, the FAD prohibition period will 

be August 1 through September 30. In 

each of 2010 and 2011, it will be July 

1 through September 30. 

(3) High Seas Area Closures 

Two areas will be closed to fishing by 

U.S. purse seine vessels from January 1, 

2010, through December 31, 2011. The 

areas are the two areas of high seas 

within the Convention Area that are 

depicted on the map in Figure 1. In 

CMM 2008–01, the WCPFC has reserved 

the option of reversing its adoption of 

the closed areas at its regular annual 

session in December 2009. If such a 

decision occurs, NMFS will take 

appropriate action to rescind, as 

appropriate, the closed areas that are 

established in this final rule. 

Figure 1. High seas closed areas. 

Areas of high seas are indicated in 

white; areas of claimed national 

jurisdiction, including territorial seas, 

archipelagic waters, and exclusive 

economic zones, are indicated in dark 

shading. Areas that will be closed to 

purse seine fishing from January 1, 

2010, through December 31, 2011, are 

all high seas areas (in white) within the 

two rectangles bounded by the bold 

black lines. The coordinates of the two 

rectangles are set forth in the regulation. 

This map displays indicative maritime 

boundaries only. 

(4) Catch Retention 

It will be prohibited to discard any 

bigeye tuna (Thunnus obesus), 

yellowfin tuna (Thunnus albacares), or 

skipjack tuna (Katsuwonus pelamis) 

from a U.S. purse seine vessel at sea 

within the Convention Area. Exceptions 

are provided for fish that are unfit for 

human consumption for reasons other 

than their size, for the last set of the trip 

if there is insufficient well space to 

accommodate the entire catch, and for 

cases of serious malfunction of 

equipment that necessitate that fish be 

discarded. This requirement will 

become effective no earlier than January 

1, 2010, and only upon NMFS’ 

determination that an adequate number 

of WCPFC-approved observers is 

available for the purse seine vessels of 

all WCPFC members as necessary to 

ensure compliance by such vessels with 

the catch retention requirement. Once it 

makes that determination, NMFS will 

announce the effective date of the 

requirement in a notice published in the 

Federal Register. The requirement will 

then remain in effect through December 

31, 2011. 

(5) Observer Coverage 

U.S. purse seine vessels must carry 

observers deployed as part of the 

WCPFC Regional Observer Programme 

(WCPFC ROP) or deployed by NMFS on 

all trips in the Convention Area from 

August 1 through September 30, 2009 

(the FAD prohibition period). It will 

also be required, from January 1, 2010, 

through December 31, 2011, that U.S. 

purse seine vessels carry WCPFCapproved observers on all trips in the 

Convention Area. These observer 

requirements will not apply to trips that 

take place exclusively within areas 

under the jurisdiction of the United 

States, including the U.S. EEZ and U.S. 

territorial sea, or under the jurisdiction 

of any other single nation. They also 

will not apply in cases where NMFS has 


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determined that an observer is not 

available. 

(6) Sea Turtle Interaction Mitigation 

U.S. purse seine vessels operating in 

the Convention Area must carry specific 

equipment and specific measures must 

be used on such vessels to disentangle, 

handle, and release sea turtles that are 

encountered in fishing gear, including 

purse seines and FADs. The required 

equipment is a dip net or turtle hoist 

that meets specified minimum design 

standards. The required measures are: 

immediately releasing sea turtles that 

are observed enclosed in purse seines; 

disentangling sea turtles that are 

observed entangled in purse seines or 

FADs; stopping net roll until a sea turtle 

is disentangled from a purse seine; 

resuscitating sea turtles that appear 

dead or comatose; and releasing sea 

turtles back to the ocean in a specified 

manner. Unlike the other elements of 

the final rule, these requirements are 

effective indefinitely. 

Responses to Comments 

Comment 1: It is vital to the survival 

of the U.S. purse seine fleet that the 

United States negotiate measures in 

regional fisheries management 

organizations (RFMO) that impose a 

comparable burden on all participants 

in the fishery, and that U.S. fishermen 

do not bear an unfair amount of the 

conservation burden. Furthermore, it is 

critical to the survival of the U.S. purse 

seine fleet that domestic regulations 

implementing RFMO measures not be 

significantly more burdensome on the 

U.S. fleet than those imposed on the 

fleet’s foreign competitors. Also, it is the 

responsibility of the U.S. government to 

ensure that other governments 

implement substantially similar rules 

and regulations, and the U.S. 

government should promptly give 

notice to the appropriate RFMO of any 

shortcomings in the regulations and 

enforcement by other member countries 

of the RFMO. 

Response: This comment does not 

pertain to the proposed rule itself. 

NMFS, as part of U.S. delegations to the 

WCPFC and other RFMOs, shares the 

view that all participants in affected 

fisheries should share comparable 

burdens when seeking to achieve 

conservation and management 

objectives, and NMFS applies this 

principle in its role as part of U.S. 

delegations to the WCPFC and other 

RFMOs. As part of such U.S. 

delegations, NMFS routinely endeavors 

to determine whether all RFMO 

members are satisfying their obligations 

to implement the decisions of the 

RFMOs, and to alert the RFMOs, as 

appropriate, about any shortcomings in 

such implementation. 

Comment 2: With respect to the 

proposed limits on fishing days, reports 

advising of the number of fishing days 

used to date should be issued on a 

monthly basis in order to assist vessels 

in planning their operations. 

Response: NMFS recognizes the value 

of providing such information to 

affected fishing operations and will 

endeavor to provide it to the extent 

possible. NMFS intends to make 

periodic estimates and/or projections of 

the number of fishing days used and to 

make them publicly available in as 

timely a manner as possible. Exactly 

what information will be provided, how 

often it will be updated, when it will be 

provided, and how it will be 

disseminated to the public cannot be 

determined at this time. 

Comment 3: The regulations should 

be clarified to say that upon the 

proposed August 1, 2009, start date of 

the FAD prohibition period, a purse 

seine vessel would be permitted to 

transit to port without an observer on 

board, provided that no fishing takes 

place during such transit. 

Response: The proposed rule is 

consistent with the commenter’s view. 

Under the proposed rule, it would be 

prohibited to use a U.S. vessel equipped 

with purse seine gear to ‘‘fish’’ in the 

Convention Area without an observer on 

board (with certain exemptions, not 

relevant to this comment). Under the 

proposed rule, ‘‘fishing’’ is defined to 

include searching for, catching, taking, 

or harvesting fish, as well as a number 

of other specific activities, but it does 

not include merely transiting or being at 

sea. 

Comment 4: The activities related to 

fishing in association with FADs that 

would be prohibited during the FAD 

prohibition periods should be qualified 

to include the word ‘‘intentionally’’; for 

example, it should not be prohibited to 

set a purse seine on a floating object if 

it is not done intentionally, such as if 

the object was submerged and not seen 

when the set is made. 

Response: NMFS does not agree. In 

order to ensure that fishing on schools 

in association with FADs does not 

occur, it is necessary, for enforcement 

and compliance purposes, to prohibit all 

fishing in association with FADs. Even 

with the presence of an observer on 

board the vessel, requiring a 

determination of the intent behind the 

fishing vessel’s activities would 

undermine the rule’s effectiveness and 

unnecessarily complicate enforcement. 

However, the rule is aimed at ensuring 

that vessels do not fish on schools 

associated with FADs; therefore, factors 

beyond the control of the vessel will, as 

always, be taken into consideration in 

the enforcement of this regulation. 

Comment 5: During a FAD prohibition 

period, the following activities should 

not be prohibited: (1) in situations in 

which there are no FADs in the area of 

the fishing vessel, capturing a school of 

tuna that has aggregated under the 

fishing vessel; (2) capturing fish that are 

in the vicinity of a floating object but 

not associated with the object; and (3) 

removing a FAD from the water and 

securing it on the deck, provided that no 

servicing of the FAD takes place. 

Response: Regarding activity (1), the 

commenter’s view is consistent with the 

intent of the proposed rule; however, 

NMFS will revise the final rule to clarify 

that the meaning of a FAD does not 

include the purse seine vessel itself. 

Having said that, it is important to note 

that under the proposed rule it would be 

prohibited during a FAD prohibition 

period to set a purse seine in an area 

into which fish were drawn by a vessel 

from the vicinity of a FAD. Regarding 

activity (2), NMFS does not agree. 

Although fish may indeed be found in 

the vicinity of a FAD but not necessarily 

associated with it, NMFS finds that in 

order to ensure that fishing on schools 

in association with FADs does not 

occur, it is necessary to also prohibit 

fishing on schools that are merely in the 

vicinity of FADs. Under the proposed 

rule, this would be accomplished by 

prohibiting setting a purse seine within 

one nautical mile of a FAD. Regarding 

activity (3), the commenter’s view is 

consistent with the intent of the 

proposed rule; however, NMFS will 

revise the final rule to clarify that 

during a FAD prohibition period it will 

not be prohibited to remove a FAD from 

the water, provided that it is not 

returned to the water. 

Comment 6: Regarding the areas of 

high seas that would be closed to purse 

seine fishing in 2010 and 2011, 

consideration should be given to using 

MarZone, which is a geodetic software 

program specifically designed and 

developed to implement all provisions 

relating to the determination of 

maritime boundaries as set out in 

relevant articles of the United Nations 

Law of the Sea. The enforcement 

agencies of WCPFC member countries, 

including those of the United States, 

and vessel operators could best meet 

their responsibilities with the use of an 

accurate system, and the same system 

for mapping coordinates. 

Response: NMFS recognizes that 

WCPFC members and their enforcement 

agencies do not all use the same tools 

to determine where a given geographical 

coordinate lies on the earth’s surface, 


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and indeed, do not all necessarily agree 

on the same coordinates to describe a 

given boundary. NMFS agrees that use 

by all WCPFC members of common 

agreed-upon geodetic tools would 

enhance the collective ability of WCPFC 

members to satisfy their enforcement 

responsibilities under the Convention 

and would reduce the potential for 

misunderstandings and conflicts among 

WCPFC members. However, this issue is 

outside the scope of this rule; NMFS 

does not recognize any way in which 

the proposed rule could be revised to 

address the comment. 

Comment 7: The proposed fishing 

effort limits are inconsistent with the 

provisions of CMM 2008–01, paragraph 

10 of which establishes 2004 levels or 

the average of 2001–2004 as the baseline 

for the limits for the high seas. The 

proposed rule misconstrues the meaning 

and intent of CMM 2008–01 by asserting 

that the potential effort of all 40 U.S. 

purse seine vessel licenses authorized 

under the South Pacific Tuna Treaty 

(SPTT) should be included in the 

baseline levels of fishing effort for both 

the high seas and the U.S. EEZ, whereas 

paragraph 7 of CMM 2008–01, with its 

proviso that ‘‘the registration of bilateral 

agreements or arrangements does not 

provide a basis for establishing effort 

levels on the high seas,’’ explicitly 

prohibits such an expansion. Under 

NMFS’ proposal, the baseline effort 

level (and therefore the 2009–2011 effort 

limit) for the high seas would be 

expanded from 1,066 fishing days to 

2,030 fishing days, and the EEZ baseline 

effort and 2009–2011 effort limit would 

be expanded from 279 days to 558 

fishing days. NMFS should not attempt 

to circumvent the meaning or intent of 

CMM 2008–01, the unmistakable intent 

of which is to address depletion of 

bigeye tuna through, among other 

things, the imposition of purse seine 

effort limits reflective of those which 

occurred during the baseline period. If 

NMFS successfully applies the 

proposed methodology to the U.S. purse 

seine fleet, it must apply the same logic 

to the catch limits required in longline 

fisheries under CMM 2008–01, a 

proposed rule for which has not yet 

been published but alternatives for 

which are included in the EA for this 

purse seine-related proposed rule. 

Response: NMFS disagrees with the 

comment that the proposed fishing 

effort limits are inconsistent with the 

provisions of CMM 2008–01. Paragraph 

7 of CMM 2008–01 states that the 

determination of levels of fishing effort 

established in the CMM shall include, 

as applicable, fishing rights organized 

under existing regional or bilateral 

fisheries partnership agreements or 

arrangements, subject to the following 

limitations: such agreements or 

arrangements have been registered with 

the WCPFC by December 2006 in 

accordance with CMM 2005–01 (a 

precursor of CMM 2008–01); the 

number of licenses authorized under 

such arrangements does not increase; 

and finally, that registered ‘‘bilateral 

agreements or arrangements’’ do not 

provide a basis for establishing effort 

levels on the high seas. Accordingly, 

CMM 2008–01, paragraph 7, clearly 

provides for effort determinations to be 

based on existing rights (rather than 

historical fishing effort) under regional 

agreements such as the SPTT, provided 

that they are not used as a means to 

circumvent the objectives of CMM 

2008–01 for bigeye tuna by increasing 

the number of licenses authorized under 

such agreements. Under the SPTT, the 

number of U.S. purse seine vessels that 

may be authorized to fish in the SPTT 

Area, including its areas of high seas, is 

strictly limited to 45, five of which are 

reserved for vessels engaged in joint 

ventures with Pacific Island Parties to 

the SPTT. These fishing rights of the 

United States under the SPTT provide 

the basis under CMM 2008–01 for 

determining effort limits. That is, the 

determination of the effort limits is 

based on the product of the number of 

licenses available under the SPTT and 

the average numbers of fishing days 

spent per vessel on the high seas and in 

the U.S. EEZ in 2004. Finally, although 

CMM 2008–01 expressly prohibits the 

use of ‘‘bilateral agreements or 

arrangements’’ to establish effort levels 

on the high seas, such restriction does 

not apply to the SPTT, which is a 

regional fisheries agreement among 

seventeen parties. Clearly, the 

restriction is intended to prevent parties 

to such bilateral arrangements from 

circumventing the objectives of CMM 

2008–01. 

A portion of this comment refers to 

alternatives considered for the other 

action analyzed in the EA, ‘‘Bigeye Tuna 

Catch Limits in Longline Fisheries in 

2009, 2010, and 2011,’’ which is not a 

part of this rulemaking. Although 

resubmission of this comment during 

the proposed rule comment period for 

that proposed rule is encouraged, NMFS 

will consider this comment, as 

appropriate, in the context of the 

longline-related rule. Please see 

response to comment 14 regarding how 

the two actions are treated together in 

the EA. 

Comment 8: The proposed approach 

of using multiple-year management 

periods appears consistent with CMM 

2008–01 with respect to the fishing 

effort limits in the U.S. EEZ, but not 

with respect to the limits on the high 

seas. More importantly, nowhere does 

CMM 2008–01 contemplate combining 

effort limits for the two areas that would 

permit the allowable effort for either 

area to be exceeded by transferring effort 

from one to the other. NMFS should 

determine and implement separate 

limits for the two areas. If the two areas 

are combined, NMFS must consider and 

present the potential impacts on stocks, 

marine ecosystems, other fisheries, and 

domestic fishing communities of up to 

2,588 purse seine fishing days being 

annually applied within the U.S. EEZ. 

Response: Regarding the use of 

multiple-year periods for the purpose of 

the fishing effort limits, CMM 2008–01 

does not specify that the limits must be 

implemented on an annual basis or on 

any other specific time scale. With 

respect to limiting fishing effort on the 

high seas, for example, paragraph 10 of 

CMM 2008–01 states that ‘‘the level of 

purse seine fishing effort in days fished 

[must] not exceed 2004 levels or the 

average of 2001–2004.’’ NMFS 

considered several alternative time 

scales for the fishing effort limits, 

including annual limits (including the 

calendar-year and the SPTT licensingyear, which runs from June 15 through 

June 14), a three-year limit, and the 

combination of one-year, two-year, and 

three-year limits, all of which NMFS 

believes are entirely consistent with the 

relevant requirements of CMM 2008–01. 

Based on the findings in the EA, RIR, 

and IRFA, NMFS concluded that the 

combination of one-year, two-year, and 

three-year limits would be the best 

alternative. 

CMM 2008–01 does not prohibit 

WCPFC members from managing areas 

of high seas and areas under their 

national jurisdiction as a single area for 

the purpose of the required limits on 

fishing effort. NMFS believes that the 

proposed approach is not only 

consistent with CMM 2008–01, but also 

that it is, as concluded in the RIR and 

IRFA, the approach that would satisfy 

the requirements of CMM 2008–01 

while minimizing adverse economic 

impacts (the alternative of establishing 

separate limits for the two areas was 

also considered in the RIR, IRFA, and 

EA see response to comment 16). 

The objective of CMM 2008–01 is to 

reduce fishing mortality on bigeye tuna 

in the WCPO. The WCPFC has 

consistently treated bigeye tuna in the 

WCPO as a single stock for management 

purposes, and the objectives and 

approach of CMM 2008–01 continue 

that tradition. The separation in CMM 

2008–01 of the high seas-related 

provisions from the national zonerelated provisions has nothing to do 


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with differing management needs or 

objectives in the two respective areas. 

Rather, the two areas are treated 

separately because of the management 

approach adopted in CMM 2008–01. 

Specifically, CMM 2008–01 puts the 

responsibility to limit fishing effort in 

areas under national jurisdiction on 

coastal States, while the responsibility 

to limit fishing effort in areas of high 

seas is put on flag States. In the case 

where a WCPFC member is both a 

coastal State and a flag State with 

respect to purse seine vessels, such as 

the United States, it makes good sense 

for the WCPFC member to satisfy its 

dual responsibilities using measures 

that collectively are as effective and 

practical as possible. NMFS has 

attempted to do just that in considering 

an alternative that would combine the 

two areas and another alternative that 

would not. Because both alternatives 

would accomplish the objective of 

reducing fishing mortality on WCPO 

bigeye tuna by the required amount (i.e., 

by U.S. purse seine vessels operating on 

the high seas and by purse seine vessels 

in areas under U.S. jurisdiction, 

collectively), and because the 

alternative of combining the two areas is 

expected to result in lesser adverse 

economic impacts, NMFS adopted the 

alternative that would combine the two 

areas, and NMFS does not find good 

reason to revise the proposal. 

With respect to considering potential 

impacts on stocks, marine ecosystems, 

other fisheries, and domestic fishing 

communities, NMFS has conducted the 

necessary environmental and economic 

analyses using the best available 

information and a reasonable range of 

assumptions. After considering 

historical fishing practices and patterns 

of the U.S. purse seine fleet in the 

region, NMFS does not agree with the 

commenter that the scenario presented 

of 2,588 purse seine fishing days being 

spent in the U.S. EEZ in a single year 

(i.e., essentially 100 percent of 

allowable fishing effort) is a reasonably 

foreseeable result of this action. During 

the years 1997–2007, the proportion of 

total fishing effort by the U.S. WCPO 

purse seine fleet that occurred in the 

U.S. EEZ ranged from 3 to 21 percent 

and averaged 7 percent (see Table 3 in 

the EA). 

Comment 9: Regarding the minimum 

distance that would be required 

between a purse seine set and a FAD 

during a FAD prohibition period, the 

proposed one nautical mile is 

inadequate in terms of effectiveness and 

enforceability. A buffer zone of at least 

10 miles is necessary to ensure that 

purse seine vessels do not act as de facto 

FADs and draw fish away from FADs, 

as well as to allow enforcement of the 

requirement. 

Response: NMFS has not identified 

any relevant standard or precedent 

adopted either in the United States or in 

international fisheries fora. However, 

NMFS has considered relevant 

deliberations in tuna RFMOs and 

regional fisheries bodies, including 

those within the Inter-American 

Tropical Tuna Commission, within the 

Pacific Islands Forum Fisheries Agency 

(FFA) on behalf of its members that are 

Parties to the Nauru Agreement (PNA), 

and within the WCPFC’s Third 

Intersessional Working Group Regional 

Observer Programme. Based in part on 

those deliberations, as well as NMFS’ 

own assessment of what an effective 

distance would be, NMFS believes that 

a distance of one nautical mile is 

appropriate. NMFS believes that the 

distance of 10 miles proposed by the 

commenter is impractical, in part 

because of the difficulty vessel operators 

would have in recognizing floating 

objects from such a great distance. 

NMFS does not find good reason to 

make any change from the proposed 

rule, but it recognizes that this aspect of 

the rule is largely untested, and NMFS 

intends to closely monitor its 

effectiveness and enforceability. 

Comment 10: NMFS proposes to delay 

implementation of CMM 2008–01’s 

catch retention requirement until an 

adequate number of observers is 

available for all (domestic and foreign) 

purse seine vessels managed under the 

WCPFC. The United States, whose purse 

seine fleet is already subject to 20 

percent observer coverage, should take 

an immediate leadership role by 

implementing this important 

conservation and management measure 

as required under CMM 2008–01. 

Response: Paragraph 27 of CMM 

2008–01 states that the catch retention 

requirement is ‘‘subject to the 

Commission implementing the program 

in paragraph 28 for 100 percent 

coverage on purse seine vessels by the 

observers from the Regional Observer 

Program.’’ The proposed ‘‘delay’’ in 

implementation referred to by the 

commenter is in fact not a proposal to 

delay implementation, but simply a 

proposal to implement this aspect of 

paragraph 27 of CMM 2008–01. 

Specifically, the proposed regulations 

state that the catch retention 

requirement is contingent on a 

determination by NMFS that ‘‘an 

adequate number of WCPFC observers 

are available for the purse seine vessels 

of all Members of the Commission as 

necessary to ensure compliance by such 

vessels with the catch retention 

requirements established by the 

Commission.’’ NMFS continues to find 

this aspect of the proposed rule to be 

consistent with CMM 2008–01. 

Comment 11: The provisions in the 

proposed rule that would allow a purse 

seine vessel to be used to fish without 

an observer on board in cases that (1) 

the fishing trip is restricted entirely to 

areas under U.S. jurisdiction, or (2) 

NMFS determines an observer is not 

available, are inconsistent with 

paragraphs 13, 14, 28, and 29 of CMM 

2008–01, which do not provide 

exemptions for such cases. 

Response: Regarding the proposed 

rule’s exemption for fishing trips that 

take place entirely in areas under U.S. 

jurisdiction, NMFS believes it is entirely 

consistent with CMM 2008–01. 

Paragraph 13 of CMM 2008–01 applies 

only to the high seas. Paragraphs 28 and 

29 of CMM 2008–01 apply only to the 

following three cases (all within the 

Convention Area, between 20° N. and 

20° S. lat.): (1) fishing exclusively on the 

high seas, (2) fishing on the high seas 

and in waters under the jurisdiction of 

one or more coastal States, and (3) 

fishing in waters under the jurisdiction 

of two or more coastal States. The case 

of fishing in waters under jurisdiction of 

a single coastal State is not included. 

This is consistent with the scope of the 

WCPFC ROP as established in Article 

28.4 of the Convention, which states 

that WCPFC members shall ensure that 

their fishing vessels operating in the 

Convention Area are prepared to accept 

observers from the WCPFC ROP if 

required by the WCPFC, ‘‘except for 

vessels that operate exclusively within 

waters under the national jurisdiction of 

the flag State.’’ Paragraphs 12 and 14 of 

CMM 20008–01 speak to observer 

requirements for 2009 in areas under the 

jurisdiction of the flag State, but the 

requirement is only to implement 

measures that are ‘‘compatible’’ with 

those required under paragraph 11, 

which apply only to the WCPFC 

members that are PNA and not directly 

to the United States. NMFS finds the 

measures in the proposed rule to be 

compatible with those required of the 

PNA under paragraph 11 and, 

importantly, finds them consistent with 

the scope of the WCPFC ROP as 

established in Article 28.4 of the 

Convention. 

Regarding the proposal to waive the 

observer requirement in cases that an 

observer is not available, NMFS agrees 

that CMM 2008–01 does not explicitly 

allow WCPFC members to provide 

exemptions for its vessels in such cases, 

but disagrees that it may not establish a 

waiver provision where, through no 

fault of the vessel, an observer is not 

available. During the 22 years that U.S. 


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purse seine vessels have operated in the 

WCPO, the fleet has maintained a 20– 

percent observer coverage rate using 

independent and impartial observers 

from various Pacific Island countries, 

deployed by the FFA Regional Observer 

Programme, based in Honiara, Solomon 

Islands. FFA observers are authorized to 

operate in the entire SPTT Area, which 

includes portions of the U.S. EEZ. 

Paragraphs 13, 14, 28, and 29 of CMM 

2008–01 require that observers from the 

WCPFC ROP (or, in 2009 only, national 

observer programs) be deployed on 

purse seine vessels at levels of either 20 

percent (in 2009, outside the FAD 

prohibition period) or 100 percent (at all 

other times in the years 2009–2011). 

The FFA Regional Observer Programme 

has received interim authorization 

under the WCPFC ROP, meaning that its 

observers are considered WCPFC ROP 

observers. At the 21st SPTT Formal 

Consultation, in Koror, Palau, the 

United States and the Pacific Island 

Parties to the SPTT agreed that the FFA 

Regional Observer Programme would 

continue to provide observer coverage 

for U.S. purse seine vessels as required 

under the SPTT, as well as provide the 

observers needed to satisfy the 

requirements for the United States of 

paragraphs 13, 14, 28, and 29 of CMM 

2008–01. NMFS understands that the 

FFA is making preparations to move 

from the current 20–percent coverage 

rate under the SPTT to the 100–percent 

coverage rate required of U.S. purse 

seine vessels that fish any time between 

August 1 and September 30, 2009. 

NMFS anticipates that approximately 35 

observers would be needed during that 

period, and that at least that number 

would be needed throughout 2010 and 

2011. NMFS recognizes that 

accomplishing such a rapid increase 

may present considerable logistical and 

training challenges for the FFA Regional 

Observer Programme, and there is a 

possibility that the FFA would not be 

able to provide observers in a timely 

manner in all cases in which they are 

needed. The waiver provision included 

in the proposed rule is intended to 

address this circumstance, recognizing 

that fishing vessels could be prohibited 

from sailing due to circumstances 

outside their control and not of their 

making. The waivers would be granted 

on a trip-by-trip basis, and only upon a 

determination by the NMFS Pacific 

Islands Regional Administrator that an 

observer is not available. NMFS 

anticipates that such waivers would be 

granted rarely. 

Comment 12: It is hoped that if an 

observer cannot be provided within 24 

hours of a vessel’s scheduled departure 

date for lack of an observer, the vessel 

would be allowed to go fishing. Also, a 

fishing vessel should be compensated if 

its departure is delayed more than 24 

hours waiting for an observer to arrive. 

Response: U.S. purse seine vessels 

licensed under the SPTT are currently 

required to accommodate FFA-deployed 

observers in accordance with the South 

Pacific Tuna Act of 1988 and its 

regulations. These observers come from 

a variety of locations in the Pacific 

region. Both the FFA and NMFS do 

everything they can to ensure that 

observers are placed well before fishing 

vessels’ estimated dates of departure. 

Scheduled vessel departure dates are 

merely estimated dates and often change 

for a variety of reasons unrelated to 

observer placement. As stated in the 

response to comment number 11, 

arrangements have been made with the 

FFA for observers to be deployed from 

the FFA Regional Observer Programme 

to provide the enhanced observer 

coverage that would be required under 

the proposed rule. During the 22 years 

that observers have been deployed on 

U.S. purse seine vessels under the 

SPTT, there have been relatively few 

instances in which vessels have been 

significantly delayed as a result of FFA 

observer placement. The proposed rule 

would allow a vessel to depart without 

an observer only if the NMFS Pacific 

Islands Regional Administrator 

determines that an observer is not 

available. This provision is intended to 

be applied in exceptional cases. In all 

circumstances, this provision would be 

applied at the sole discretion of the 

Regional Administrator. NMFS intends 

to work with the FFA to ensure that the 

successful record of the past 22 years is 

maintained. NMFS does not see the 

need to employ a time limit based on 

what are merely estimated dates of 

departure. Nor does NMFS believe that 

vessel owners or operators should be 

compensated in the event the departure 

of the vessel is delayed as a result of 

waiting for an observer, which could be 

caused by any number of factors outside 

the control of both NMFS and the FFA, 

such as delayed or cancelled airline 

flights to vessels’ ports of departure. 

Comment 13: The commenter should 

be provided with copies of the measures 

implemented by other WCPFC members 

to implement the WCPFC-adopted sea 

turtle mitigation requirements for their 

purse seine fleets. 

Response: This comment does not 

pertain to the proposed rule itself. 

NMFS, as part of U.S. delegations to the 

WCPFC, routinely endeavors to 

determine whether all WCPFC members 

are satisfying their obligations to 

implement the decisions of the WCPFC, 

such as by ascertaining what specific 

actions they have taken to implement 

WCPFC-adopted conservation and 

management measures. This applies to 

the WCPFC’s CMM 2008–03 on sea 

turtles. 

The following comments were 

specific to the EA prepared for this 

proposed rule. 

Comment 14: The EA also analyzes 

another proposed rule, ‘‘Bigeye Tuna 

Catch Limits in Longline Fisheries in 

2009, 2010, and 2011.’’ However, the 

proposed rule for that action has not yet 

been published and a preferred 

alternative for that action has not been 

designated in the EA. It is unclear why 

the EA contains analysis of this other 

rule. 

Response: As indicated in the ‘‘Note 

to the Reader’’ issued in conjunction 

with the draft version of the EA, the 

proposed rule, ‘‘Bigeye Tuna Catch 

Limits in Longline Fisheries in 2009, 

2010, and 2011,’’ is forthcoming. There 

is no requirement that a proposed rule 

and a draft EA be issued 

simultaneously. The Council on 

Environmental Quality’s (CEQ) 

regulations for implementing the 

National Environmental Policy Act 

(NEPA) at 40 CFR § 1508.9 do not 

require the designation of a preferred 

alternative in an EA nor do the National 

Oceanic and Atmospheric 

Administration’s Environmental Review 

Procedures for Implementing NEPA 

(NAO 216–6). As stated in Chapter 2 of 

the EA, for each rule, the EA compares 

the alternatives analyzed in depth to 

provide the decisionmaker and the 

public a clear basis for choosing among 

the alternatives. 

As stated in Chapter 1 of the EA, ‘‘The 

CEQ’s regulations at 40 CFR 

1508.25(a)(3) state that agencies may 

analyze similar actions (e.g., actions that 

have common timing or geography) in 

the same NEPA document, although 

they are not required to do so.’’ And 

further, ‘‘both rules stem from the same 

WCPFC decisions and share common 

objectives, as well as common timing 

and geography. Thus, in order to 

implement the immediately necessary 

provisions of the recent WCPFC 

decisions in an efficient manner, NMFS 

has prepared one EA document for the 

two proposed rules.’’ 

Comment 15: The EA should analyze 

an alternative that would cap purse 

seine fishing effort at the annual average 

of 2001–2004, instead of using only the 

2004 fishing effort level as the baseline. 

Moreover, the EA expands the amount 

of the purse seine fishing effort limit for 

the high seas and U.S. EEZ by 

multiplying the 2004 baseline amount 

by 40, or the maximum number of 


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vessels allowed to be licensed under the 

SPTT. The EA should include an 

alternative that analyzes the fishing 

effort limit based on the number of 

vessels that was active in 2004. 

Response: CMM 2008–01 requires that 

each WCPFC member take measures to 

ensure that the level of purse seine 

fishing effort is based on 2004 levels or 

the average of 2001–2004. The selection 

of the baseline period is left to the 

discretion of the WCPFC member. 

NMFS is satisfied that using the 2004 

baseline period satisfies the 

requirements of the WCPFC decision 

without imposing undue or 

disproportionate burdens on the U.S. 

purse seine fishing fleet. 

NMFS disagrees with the comment 

that NMFS should have included an 

alternative in the EA that would base 

the fishing effort limit on the number of 

vessels that were active in 2004. CMM 

2008–01, paragraph 7, provides for 

WCPFC members, in determining 

current levels of fishing effort, to 

include fishing rights organized under 

existing regional arrangements such as 

the SPTT. NMFS properly considered in 

the EA alternatives that used the 40 

non-joint venture licenses authorized 

under SPTT as a baseline for 

determining the fishing effort limits 

under CMM 2008–01. For an expanded 

discussion, see the response to comment 

7. 

Comment 16: The EA should include 

an alternative that sets a discrete fishing 

effort limit for the high seas. The 

extension of the PNA’s Vessel Day 

Scheme approach to the high seas 

appears to be inconsistent with the 

provisions of the CMM 2008–01 that 

would be implemented in the rule. 

Response: Alternative D in the EA 

includes discrete fishing effort limits for 

the high seas and the U.S. EEZ. 

Comment 17: The EA should provide 

detailed analysis of the bigeye tuna 

catch limit alternative to the high seas 

FAD prohibition period set forth in 

paragraph 15 of CMM 2008–01. The EA 

rejected detailed consideration of this 

alternative because the United States 

did not meet the WCPFC’s requirements 

for this alternative before the deadline 

of January 31, 2009. However, it appears 

that U.S. representatives declined to act 

upon this alternative and failed to 

provide the necessary information and 

commitments to the WCPFC in a timely 

manner. This alternative would provide 

a real incentive to explore methods to 

minimize bigeye tuna catches and 

achieve measurable conservation goals, 

whereas the use of fishing effort limits 

does not provide any such incentive or 

hard limit on bigeye tuna mortality. 

NMFS and U.S. representatives to the 

WCPFC should seek an extension of the 

January 31, 2009 deadline and consider 

this approach in the 2010–2011 

management of the domestic purse seine 

fishery. 

Response: The comment is noted. The 

United States determined that it would 

not adopt the catch limit measures in 

paragraph 15 of CMM 2008–01 in lieu 

of implementing the high seas FAD 

closure established under paragraph 13. 

Accordingly, the WCPFC’s deadline for 

proceeding under a catch limit program 

lapsed, and as stated in the EA, this 

alternative was not available for detailed 

consideration. Moreover, the bigeye 

tuna catch limit was set forth in CMM 

2008–01 as an alternative to the high 

seas FAD prohibition period for 2009, 

not as an alternative to the fishing effort 

limit provisions. 

Comment 18: The EA should consider 

a bigeye tuna catch limit for the 

swordfish sector of the longline fishery, 

which averages about 17 bigeye tuna 

incidentally caught per set [the 

commenter subsequently clarified this 

to mean 17 bigeye tuna per trip], which 

are brought to shore and sold. Such a 

catch limit would reduce bycatch, avoid 

waste, and promote optimum yields. 

Response: This comment refers to 

alternatives considered for the other 

action analyzed in the EA, ‘‘Bigeye Tuna 

Catch Limits in Longline Fisheries in 

2009, 2010, and 2011,’’ which is not a 

part of this rulemaking. Although 

resubmission of this comment during 

the proposed rule comment period for 

that proposed rule is encouraged, NMFS 

will consider this comment, as 

appropriate, in the context of the 

longline-related rule. 

Comment 19: The EA should include 

an alternative to the bigeye tuna catch 

limit for the longline fishery that would 

utilize the three-year rolling 

management period that has been 

proposed for the purse seine fishing 

effort limits. 

Response: This comment refers to 

alternatives considered for the other 

action analyzed in the EA, ‘‘Bigeye Tuna 

Catch Limits in Longline Fisheries in 

2009, 2010, and 2011,’’ which is not a 

part of this rulemaking. Although 

resubmission of this comment during 

the proposed rule comment period for 

that proposed rule is encouraged, NMFS 

will consider this comment, as 

appropriate, in the context of the 

longline-related rule. 

Comment 20: Table 4 of the EA 

provides combined yellowfin tuna and 

bigeye tuna catch data for 2007 and 

2008, including by landing port, and 

aggregates the information for associated 

and unassociated fishing. Table 5 

provides separate information on 

yellowfin tuna and bigeye tuna catches 

for 2003–2008, including separate 

information for associated and 

unassociated fishing, but landing port 

information is not included. Detailed 

and fully disaggregated information 

should be included, discussed, and 

analyzed so that the differential impacts 

of the alternatives can be fully 

considered by decisionmakers and the 

public based on the best available 

information. 

Response: The EA considered four 

action alternatives for the rule, as well 

as the No-Action or baseline alternative. 

Each of the action alternatives included 

six separate provisions, but only one of 

those provisions the fishing effort limit 

provision varied between the 

alternatives. Including information 

stating how much bigeye tuna and 

yellowfin tuna caught by associated or 

unassociated means is landed at each 

port would not provide additional 

information for the comparison of 

alternatives. 

Comment 21: The information in 

Table 5 conflicts with other published 

reports regarding catches of bigeye tuna 

by the U.S. purse seine fleet, 

particularly the 2005 U.S. annual report 

to the WCPFC. Data in the EA for bigeye 

tuna catches in the purse seine fleet are 

incomplete, because they are only 

provided for the last five years. 

Moreover, the number for the 2008 

bigeye tuna catches of the U.S. purse 

seine fleet included in Table 5 is 

inaccurate. 

Response: NMFS acknowledges the 

discrepancy between the data in Table 

5 of the EA and the information 

provided in the U.S. annual reports to 

the WCPFC. The annual reports contain 

the United States’ best available 

information regarding the U.S. WCPO 

purse seine fishery’s catch statistics. 

The data in Table 5 are from a report 

prepared by the Secretariat of the Pacific 

Community, as cited in the EA, and are 

based on information from vessel 

logsheets. As noted in the EA, the 2008 

data are preliminary. Table 5 was 

included in the EA to provide the most 

recent information NMFS could obtain 

regarding the amounts of skipjack tuna, 

yellowfin tuna, and bigeye tuna caught 

by unassociated and associated sets, 

respectively. In order to account for any 

numerical inaccuracies, these data were 

aggregated and converted to percentages 

in Section 4.1.2.2 of the EA. This 

information was then used to support 

the qualitative analysis of the potential 

environmental impacts that could be 

caused by implementation of the FAD 

prohibition periods. NMFS does not 

believe that the inclusion of additional 

data beyond the past five years would 


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provide information pertinent to the 

analysis in the EA. 

Comment 22: Table 8 of the EA 

conflicts with previously published 

information regarding catches by 

Hawaii-based longline vessels. Table 8 

indicates that 5,779 metric tons (mt) of 

bigeye tuna were caught in 2007 while 

the U.S. report to the WCPFC indicates 

that 5,400 mt were caught. Also, 

information contained in the U.S. 

annual reports to the WCPFC for fishing 

during 2000–2008 should be included 

in a specific table format so that the 

differential impacts of the alternatives 

can be fully considered by 

decisionmakers and the public based on 

the best available information. 

Response: The comment is noted. The 

Errata sheet for the Final EA contains a 

corrected version of Table 8. NMFS does 

not believe that the inclusion of the 

2000–2008 data in the format suggested 

in the comment would provide 

information pertinent to the analysis in 

the EA. Moreover, the data for longline 

bigeye tuna catches in the U.S. annual 

reports to the WCPFC are not limited to 

the Hawaii fleet, and thus, are not 

comparable to the data in Table 8. 

Comment 23: The EA fails to discuss 

the fact that the removal of swordfish 

effort limits [a separate regulatory action 

from this rule that would involve 

implementation of Amendment 18 to 

the Fishery Management Plan for 

Pelagic Fisheries in the Western Pacific 

Region] in the Hawaii longline fishery 

would result in increased direction of 

fishing effort toward swordfish and 

would likely reduce effort directed 

toward bigeye tuna. 

Response: As stated in Chapter 5 of 

the EA, Cumulative Impacts, NMFS 

indicated that if and when Amendment 

18 is implemented, the Hawaii longline 

fleet may have greater incentive to target 

swordfish. That, in turn, could lead to 

reduced fishing effort directed at bigeye 

tuna. 

Comment 24: The EA fails to discuss 

or analyze how and to what magnitude 

the alternatives for purse seine fishing 

effort limits would reduce bigeye tuna 

catches from the available baseline 

periods. 

Response: As discussed throughout 

Chapter 4, Section 4.1 of the EA, the 

fishing effort limits are not expected to 

appreciably affect the fleet’s total fishing 

effort (relative to the no-action 

scenario). Moreover, the baseline for 

comparing the environmental effects of 

the alternatives in the EA is the NoAction, or baseline alternative, not the 

baseline periods used to derive the 

fishing effort limits. 

Comment 25: The EA does not 

contain a comprehensive discussion of 

economic or social impacts. There is no 

analysis of impacts on markets, 

communities, human nutrition, 

consumers, etc. 

Response: As stated in Chapter 4 of 

the EA, the information regarding 

economic impacts in the EA is provided 

solely to determine whether and to what 

degree economic impacts are 

interrelated with environmental 

impacts. Moreover, the EA incorporates 

by reference the RIR and IRFA for the 

rule, which contain an appropriate 

analysis of economic impacts. 

Comment 26: The cumulative impacts 

section of the EA is inadequate. A major 

discrepancy is the lack of discussion of 

the well documented transfer effects 

that occur when U.S. seafood 

production is curtailed and domestic 

consumption of imported seafood 

increases in response. If the longline 

fishery is closed when the bigeye tuna 

catch limit for that fishery is reached, 

the demand for bigeye tuna will be met 

by longline caught tuna imported from 

other countries, which have less 

stringent regulations to mitigate 

environmental impacts, such as 

interactions with seabirds and sea 

turtles. 

Response: The RIR for this rule, 

which is incorporated by reference into 

the EA, examines the expected effects of 

this rule on consumers, including 

effects on quantities, quality, and prices 

of products available to U.S. consumers. 

Consumers in the United States of U.S. 

purse seine fishery-produced tuna are 

part of a large global market of tuna 

sourced from the fleets of many nations 

and produced from tuna stocks in all the 

world’s oceans. Thus, production by the 

U.S. purse seine fleet in the WCPO has 

limited influence on the price, quantity, 

quality, or source of tuna products 

consumed in the United States. 

Moreover, this proposed action is 

expected to have relatively minor effects 

on production by the U.S. fleet. 

Therefore, NMFS believes the transfer 

effects mentioned in the comment are 

unlikely to occur. 

A portion of this comment refers to 

the other action analyzed in the EA, 

‘‘Bigeye Tuna Catch Limits in Longline 

Fisheries in 2009, 2010, and 2011.’’ As 

indicated in the ‘‘Note to the Reader’’ 

issued in conjunction with the draft 

version of the EA, the proposed rule for 

that action had not been issued at the 

time the EA was made available, and the 

RIR for the longline-related rule 

consequently had not yet been made 

publicly available. For that reason, this 

comment will be addressed in the 

context of the longline-related rule and 

the RIR for that action. 

Comment 27: The Environmental 

Justice section of the EA does not 

include sufficient analysis for a 

determination to be made regarding 

significant environmental impacts. 

Response: The purpose of an 

Environmental Justice analysis is to 

determine whether a proposed action 

would have disproportionately high and 

adverse human health or environmental 

effects on minority or low-income 

populations. As discussed throughout 

the EA and summarized in Chapter 4, 

Section 4.6, implementation of the 

provisions in this rule and the longlinerelated rule would not lead to 

substantial adverse human health or 

environmental effects on any population 

minority, low income, or otherwise. 

Comment 28: The EA is insufficient to 

make an informed determination 

regarding the significance of the likely 

environmental impacts of the 

alternatives considered. However, given 

that the Pacific purse seine fisheries are 

the biggest tuna fisheries in the world, 

that longline fishing is the biggest 

fishery in Hawaii, that many of the 

measures for purse seine fishing in the 

WCPO are being considered for the first 

time, and that there are increasingly 

loud concerns being expressed by 

governments and non-governmental 

organizations regarding overfishing of 

the world’s marine ecosystems, it is 

clear that the actions being 

contemplated by NMFS are 

controversial and preparation of an 

Environmental Impact Statement (EIS) 

may better inform the public. 

Response: NMFS disagrees that the 

proposed rule is controversial, but even 

assuming it is, controversy alone is 

insufficient to trigger the requirement 

for an EIS. NMFS received only two 

comment letters in response to the 

proposed rule. Based on the analysis in 

the EA, NMFS does not believe that the 

effects of the action on the quality of the 

human environment are significant, or 

that the proposed action or its effects are 

controversial. 

Changes from the Proposed Rule 

In the proposed regulations, 

regulatory instruction (3) said that 

‘‘Subpart O, consisting of §§ 300.210 

through 200.222, is added to part 300 to 

read as follows:’’ The instruction was 

meant to read ‘‘ consisting of §§ 300.210 

through 300.222... ,’’ and the 

corresponding instruction in this final 

rule is corrected accordingly. 

On May 22, 2009, NMFS published in 

the Federal Register a proposed rule to 

implement, in part, the provisions of the 

Convention (74 FR 23965). The 

regulations in that proposed rule (called 

here the ‘‘WCPFC implementation 


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rule’’) would establish a new subpart O 

in part 300 of title 50 of the Code of 

Federal Regulations, titled ‘‘Western 

and Central Pacific Fisheries for Highly 

Migratory Species.’’ The proposed rule 

that led to this final rule (called here the 

‘‘WCPFC purse seine rule’’) was 

published after the proposed WCPFC 

implementation rule, on June 1, 2009. 

Accordingly, the regulations in the 

proposed WCPFC purse seine rule were 

written as amendments to subpart O in 

part 300. However, this final rule is 

being published before the final WCPFC 

implementation rule. It is therefore 

necessary for subpart O of part 300 of 

title 50 to be created in this final rule, 

as well as to incorporate relevant 

elements of the WCPFC implementation 

rule into these final regulations. 

Specifically, the following elements of 

the regulations proposed in the WCPFC 

implementation rule are included in 

this final rule: § 300.210, ‘‘Purpose and 

scope,’’ is included in its entirety. From 

§ 300.211, ‘‘Definitions,’’ the 

introductory sentence and all the terms 

used in the proposed WCPFC purse 

seine rule are included. From § 300.215, 

‘‘Observers,’’ paragraph (c), 

‘‘Accommodating observers,’’ which is 

referenced in § 300.223(e)(3) and (4) of 

the proposed WCPFC purse seine rule 

and this final rule, is included, with the 

exception of the sentence ‘‘All fishing 

vessels subject to this section must carry 

a WCPFC observer when directed to do 

so by NMFS.’’ From § 300.222, 

‘‘Prohibitions,’’ the introductory 

sentence is included. 

In § 300.211, ‘‘Definitions,’’ the 

definition of FAD has been revised to 

clarify that it does not include a fishing 

vessel, provided that the fishing vessel 

is not used for the purpose of 

aggregating fish. 

In § 300.223, ‘‘Purse seine fishing 

restrictions,’’ in order to clarify when, 

exactly, all the specified dates begin and 

end, an introductory sentence is 

included that states that all dates used 

in this section are in Universal 

Coordinated Time, also known as UTC. 

In § 300.223, ‘‘Purse seine fishing 

restrictions,’’ paragraph (b)(2) is revised 

to add that during a FAD prohibition 

period, a purse seine may not be set in 

an area in which a FAD has been 

inspected or handled within the 

previous eight hours. 

In § 300.223, ‘‘Purse seine fishing 

restrictions,’’ paragraph (b)(4) is revised 

to clarify that during a FAD prohibition 

period, a FAD may be removed from the 

water and if removed may be cleaned, 

provided that it is not returned to the 

water. 

Classification 

The NMFS Assistant Administrator 

has determined that this final rule is 

consistent with the WCPFC 

Implementation Act and other 

applicable laws. 

Administrative Procedure Act 

There is good cause under 5 U.S.C. 

553(d)(3) to waive the 30–day delay in 

effective date for all of this final rule 

except §§ 300.222(aa) and 300.223(f) 

(the sea turtle mitigation requirements 

and associated prohibitions). 

Compliance with the 30–delay 

requirement would be impracticable 

and contrary to the public interest the 

FAD prohibition period and associated 

observer requirement would be in effect 

for only about half of the specified 

period in 2009, meaning that NMFS 

would be frustrated in promulgating the 

regulations needed to satisfy the 

international obligations of the United 

States under the Convention. Also, 

NMFS had limited notice of the need to 

implement CMM 2008–01, which was 

adopted in the December 2008 regular 

annual session of the WCPFC. 

National Environmental Policy Act 

NMFS prepared an EA for this rule 

and concluded that there will be no 

significant impact on the human 

environment as a result of this rule. In 

the EA, NMFS compared the effects of 

the rule and four alternatives to the rule, 

including the No-Action or baseline 

alternative and three action alternatives. 

Although the alternatives would likely 

result in slightly different 

environmental impacts, all alternatives 

would have only minor impacts on 

bigeye tuna and other living marine 

resources in the WCPO. Overall, the 

expected impacts on bigeye tuna and 

other living marine resources from the 

rule or any of the action alternatives are 

expected to be similar and generally 

beneficial. The EA focuses on analyzing 

four alternatives for implementing the 

limit on the number of fishing days. 

NMFS initially considered two 

alternatives to the FAD prohibition 

period element of the rule that were 

eliminated from detailed consideration. 

For the other elements of the rule, 

NMFS was not able to identify any 

alternatives that were reasonable and 

feasible. The rule is neither the most 

restrictive nor the least restrictive 

manner in which to implement the limit 

on the number of fishing days. Rather, 

the rule seeks to establish a balance 

between the needs of fishery 

participants and the effects on the 

human environment. 

The effects on the human 

environment from the rule are expected 

to be minor for the following reasons. 

First, the duration of the rule (with the 

exception of the sea turtle mitigation 

requirements) would be limited to three 

years, after which, unless similar or 

more restrictive future actions are taken, 

conditions would likely rebound to 

conditions similar to those under the 

No-Action or baseline alternative. 

Second, the rule would have relatively 

minor effects on the conduct or catches 

of the U.S. purse seine fleet, and 

consequently only minor effects on the 

total fishing mortality rates of the stocks 

captured by the fleet, including bigeye 

tuna and yellowfin tuna in the WCPO. 

However, other present and reasonably 

foreseeable future actions for the 

conservation and management of highly 

migratory species could cause similar 

beneficial effects, so overall, the 

cumulative impacts on the affected 

environment could be greater than if the 

rule were implemented in isolation. 

Specifically, implementation by the 

United States of the provisions of CMM 

2008–01 applicable to longline vessels 

(which NMFS is undertaking via a 

separate rulemaking) and 

implementation by other WCPFC 

members of the provisions of CMM 

2008–01 and CMM 2008–03 would 

enhance the beneficial impacts to bigeye 

tuna, yellowfin tuna, and other living 

marine resources. If the WCPFC adopts 

and its members implement similar or 

more restrictive measures after the 

three-year duration of CMM 2008–01, 

the beneficial impacts would be further 

enhanced (e.g., there could be a greater 

likelihood of attaining the objectives of 

CMM 2008–01). 

The economic impacts of the rule are 

addressed in the EA only insofar as they 

are related to impacts to the biophysical 

environment. They are addressed more 

fully in the RIR, IRFA, and FRFA. A 

copy of the EA is available from NMFS 

(see ADDRESSES). 

Executive Order 12866 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

Regulatory Flexibility Act 

NMFS prepared this final regulatory 

flexibility analysis (FRFA) for the rule, 

Fishing Restrictions and Observer 

Requirements in Purse Seine Fisheries 

for 2009–2011 and Turtle Mitigation 

Requirements in Purse Seine Fisheries. 

The FRFA incorporates the IRFA 

prepared for the proposed rule (74 FR 

26160; June 1, 2009; available from 

NMFS see ADDRESSES). The analysis 


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provided in the IRFA is not repeated 

here in its entirety. 

The need for, reasons why action by 

the agency is being considered, and the 

objectives of the action are explained in 

the preambles to the proposed rule and 

final rule and are not repeated here. 

There are no disproportionate economic 

impacts between small and large vessels 

resulting from this rule. Furthermore, 

there are no disproportionate economic 

impacts from this rule based on vessel 

size, gear, or homeport. There are no 

new recordkeeping or reporting 

requirements associated with this rule. 

Other compliance requirements are 

described in the IRFA. This rule is 

issued under authority of the WCPFC 

Implementation Act. 

Description of Small Entities to Which 

the Rule Will Apply 

The rule will apply to owners and 

operators of U.S. purse seine vessels 

used for fishing in the Convention Area. 

The number of affected vessels is the 

number licensed under the SPTT. The 

current number of licensed vessels is 39, 

but the number could soon reach the 

maximum number of licenses available 

under the SPTT (excluding joint-venture 

licenses), which is 40. Based on 

(limited) financial information about the 

purse seine fleet, NMFS believes that as 

many as 10 of the affected vessels are 

owned by small entities (i.e., they are 

business entities with gross annual 

receipts of no more than $4.0 million). 

Steps Taken To Minimize the 

Significant Economic Impact on Small 

Entities 

NMFS explored alternatives that 

would achieve the objective of this 

action (to satisfy the international 

obligations of the United States under 

WCPFC CMM 2008–01 and CMM 2008– 

03 with respect to U.S. purse seine 

vessels) while minimizing economic 

impacts on small entities. Several 

alternatives were identified and 

considered. All were limited to the way 

in which the fishing effort limits would 

be implemented. One alternative 

differed from the rule only in that the 

fishing effort limits would be allocated 

among individual vessels. This would 

likely alleviate any adverse impacts of 

the race-to-fish that might occur as a 

result of establishing the competitive 

fishing effort limits as in the rule. As 

described in the IRFA, those potential 

impacts include lower prices for landed 

product and risks to performance and 

safety stemming from fishing during 

sub-optimal times. However, as 

described in the IRFA, the fishing effort 

limits are not very constraining (i.e., the 

level of effort expected under no-action 

is not much greater, if greater at all, than 

the level to which effort would be 

limited under this rule), so these 

adverse impacts are expected to be 

minor. For that reason, this alternative 

was rejected. 

Another alternative differed from the 

rule only in that there would be a single 

limit of 7,764 fishing days (three times 

the fishing effort rate of 2,588 fishing 

days per year) for the entire three-year 

period 2009–2011. This would provide 

slightly more operational flexibility to 

affected vessels than the rule, which 

could bring lower compliance costs. 

However, the lack of any limits for a 

given year would bring the potential for 

a longer closed period (e.g., during a 

substantial part of 2011) than would 

likely occur under the rule (under 

which relatively brief closures might be 

expected in one or more of the years 

2009–2011). To the extent that 

continuous fishing and continuity of 

supply are important for the fishery, 

several short closures might cause less 

adverse economic impacts than a single 

long closure, and for this reason, this 

alternative was rejected. For example, 

with a brief closure each year, vessel 

owners and operators might be able to 

schedule routine vessel maintenance 

during the closed periods and mitigate 

the losses of not being able to fish. This 

would be more difficult to do during a 

longer closed period. In any case, as 

described in the IRFA, because the 

majority of the fleet’s traditional fishing 

grounds would not be subject to the 

limit or the closure, the potential losses 

caused by a closed period however short 

or long are likely to be relatively minor. 

Another alternative would establish 

separate fishing effort limits for the high 

seas and for areas under U.S. 

jurisdiction and separate limits for each 

of the SPTT licensing years (which run 

from June 15 through June 14) during 

2009–2011. In accordance with the 

baseline effort levels specified in CMM 

2008–01, the limits would be 2,030 

fishing days on the high seas and 558 

fishing days in areas under U.S. 

jurisdiction. Because this alternative 

would provide less operational 

flexibility for affected purse seine 

vessels, the limits would be more 

constraining than those established 

under the rule, and consequently more 

costly. It was rejected for that reason. 

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 selected 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 and CMM 2008– 

03, and do so with minimal adverse 

economic impacts on small entities, and 

for these reasons was adopted in the 

final rule. 

Comments and Responses 

Comment 1: The IRFA fails to 

consider an appropriate range of 

alternatives and appears to be lacking 

some required information and 

analyses. The analysis should also 

include an examination of the 

differential impacts of the alternatives 

on U.S.-built purse seine vessels versus 

foreign-built purse seine vessels. 

Response: With respect to the range of 

analyses considered in the IRFA, NMFS 

disagrees with the comment. All the 

alternatives analyzed in detail in the EA 

were also considered in the IRFA, and 

NMFS finds those alternatives to 

comprise an appropriate range in the 

contexts of both NEPA and the 

Regulatory Flexibility Act. 

With respect to differential impacts 

on the two types of vessels, a vessel 

built or rebuilt outside the United 

States, with limited exceptions, is not 

eligible for a fishery endorsement on its 

certificate of documentation and 

consequently is not authorized to be 

used for fishing in the U.S. EEZ. 

Therefore, under the no-action 

alternative, as well as under the 

proposed rule and all the action 

alternatives, U.S.-built vessels with 

fishery endorsements would have an 

advantage over the remainder of the 

U.S. purse seine fleet. The proposed 

rule would not alter the legal 

requirements with respect to eligibility 

for fishery endorsements, and it does 

not include any provisions that apply 

differently to U.S.-built vessels than to 

foreign-built vessels. Among the 39 U.S. 

purse seine vessels currently licensed 

under the SPTT and which would be 

directly affected by this rule, 11 have 

fishery endorsements and 28 do not. To 

give an indication of the magnitude of 

the advantage, in the years 1997–2007, 

the portion of the fleet’s annual fishing 

effort (in days fished) that was spent in 

the U.S. EEZ (necessarily by vessels 

with fishery endorsements only) 

averaged seven percent (NMFS 

unpublished data), and through most of 

that period, the ratio in the number of 

vessels with fishery endorsements to the 

number without fishery endorsements 

was considerably higher than it is now. 

NMFS recognizes that two elements of 

the proposed rule would have the 

potential to enhance or diminish this 

advantage, as follows. 


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With respect to the fishing effort 

limits, once a limit is reached, vessels 

with fishery endorsements would be 

prohibited from fishing in a somewhat 

larger area (high seas plus U.S. EEZ in 

the Convention Area) than the area in 

which the vessels without fishery 

endorsements would be prohibited from 

fishing (only the high seas in the 

Convention Area). In absolute terms, 

therefore, operators of vessels with 

fishery endorsements could bear greater 

losses as a result of a limit being 

reached than operators of vessels 

without fishery endorsements. In 

relative terms, however, the expected 

impacts on the two types of vessels are 

the same vessels of both types would be 

expected to experience approximately 

the same losses in terms of the 

proportion of revenues or profits that 

would be lost. Also, there would not be 

any differential impact at all until a 

limit is reached, and as described in the 

IRFA, the likelihood of a limit being 

reached in any given limit-period may 

not be high. Furthermore, as described 

in the IRFA, even if a limit is reached, 

the expected economic impacts, 

considering opportunity costs, are 

expected to be minor, since the most of 

the fleet’s traditional fishing grounds 

that is, foreign EEZs within the 

Convention Area, as well as the eastern 

Pacific Ocean would remain open to 

fishing. In sum, the fishing effort limits 

would not be expected to bring 

substantial differential impacts 

according to whether a vessel is U.S.- 

built or foreign-built. 

The high seas closed areas, in contrast 

to the fishing effort limits, could cause 

vessels without fishery endorsements to 

bear greater losses than vessels with 

fishery endorsements, since the former 

would be excluded from a greater 

proportion of their otherwise available 

fishing grounds than would vessels with 

fishery endorsements. As described in 

the IRFA, the economic impacts of the 

high seas closed areas, considering 

opportunity costs, are expected to be 

relatively minor because most of the 

fleet’s traditional fishing grounds would 

remain open. Therefore, the high seas 

closed areas would not be expected to 

bring substantial differential impacts 

according to whether a vessel is U.S.- 

built or foreign-built. 

None of the other elements of the 

proposed rule, including the FAD 

prohibition periods, catch retention 

requirements, observer coverage 

requirements, or turtle mitigation 

requirements, would be expected to 

have differential impacts according to 

whether a vessel is U.S.-built or foreignbuilt. 

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 

holders of purse seine licenses issued 

pursuant to regulations implementing 

the South Pacific Tuna Act of 1988. 

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. 

List of Subjects in 50 CFR Part 300 

Administrative practice and 

procedure, Fish, Fisheries, Fishing, 

Marine resources, Reporting and 

recordkeeping requirements, Treaties. 

Dated: July 29, 2009. 

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 

by adding subpart O, consisting of 

§§ 300.210 through 300.223, to read as 

follows: 

PART 300—INTERNATIONAL 

FISHERIES REGULATIONS 

Subpart O—Western and Central 

Pacific Fisheries for Highly Migratory 

Species 

Sec. 

300.210 Purpose and scope. 

300.211 Definitions. 

300.212 Vessel permit endorsements. 

[Reserved] 

300.213 Vessel information. [Reserved] 

300.214 Compliance with laws of other 

nations. [Reserved] 

300.215 Observers. 

300.216 Transshipment. [Reserved] 

300.217 Vessel identification. [Reserved] 

300.218 Reporting and recordkeeping 

requirements. [Reserved] 

300.219 Vessel monitoring system. 

[Reserved] 

300.220 Confidentiality of information. 

[Reserved] 

300.221 Facilitation of enforcement and 

inspection. [Reserved] 

300.222 Prohibitions. 

300.223 Purse seine fishing restrictions. 

Authority: 16 U.S.C. 6901 et seq. 

Subpart O—Western and Central 

Pacific Fisheries for Highly Migratory 

Species 

§ 300.210 Purpose and scope. 

This subpart implements provisions 

of the Western and Central Pacific 

Fisheries Convention Implementation 

Act (Act) and applies to persons and 

vessels subject to the jurisdiction of the 

United States. 

§ 300.211 Definitions. 

In addition to the terms defined in 

§ 300.2 and those in the Act and in the 

Convention on the Conservation and 

Management of Highly Migratory Fish 

Stocks in the Western and Central 

Pacific Ocean, with Annexes (WCPF 

Convention), which was adopted at 

Honolulu, Hawaii, on September 5, 

2000, by the Multilateral High-Level 

Conference on Highly Migratory Fish 

Stocks in the Western and Central 

Pacific Ocean, the terms used in this 

subpart have the following meanings. 

Commission means the Commission 

for the Conservation and Management of 

Highly Migratory Fish Stocks in the 

Western and Central Pacific Ocean 

established in accordance with the 

WCPF Convention, including its 

employees and contractors. 

Convention Area means all waters of 

the Pacific Ocean bounded to the south 

and to the east by the following line: 

From the south coast of Australia due 

south along the 141st meridian of east 

longitude to its intersection with the 

55th parallel of south latitude; thence 

due east along the 55th parallel of south 

latitude to its intersection with the 

150th meridian of east longitude; thence 

due south along the 150th meridian of 

east longitude to its intersection with 

the 60th parallel of south latitude; 

thence due east along the 60th parallel 

of south latitude to its intersection with 

the 130th meridian of west longitude; 

thence due north along the 130th 

meridian of west longitude to its 

intersection with the 4th parallel of 

south latitude; thence due west along 

the 4th parallel of south latitude to its 

intersection with the 150th meridian of 

west longitude; thence due north along 

the 150th meridian of west longitude. 

Effort Limit Area for Purse Seine, or 

ELAPS, means, within the area between 

20° N. latitude and 20° S. latitude, areas 

within the Convention Area that either 

are high seas or are within the 

jurisdiction of the United States, 

including the EEZ and territorial sea. 

Fish aggregating device, or FAD, 

means any artificial or natural floating 

object, whether anchored or not and 


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whether situated at the water surface or 

not, that is capable of aggregating fish, 

as well as any objects used for that 

purpose that are situated on board a 

vessel or otherwise out of the water. The 

meaning of FAD does not include a 

fishing vessel, provided that the fishing 

vessel is not used for the purpose of 

aggregating fish. 

Fishing means using any vessel, 

vehicle, aircraft or hovercraft for any of 

the following activities, or attempting to 

do so: 

(1) Searching for, catching, taking, or 

harvesting fish; 

(2) Engaging in any other activity 

which can reasonably be expected to 

result in the locating, catching, taking, 

or harvesting of fish for any purpose; 

(3) Placing, searching for, or 

recovering fish aggregating devices or 

associated electronic equipment such as 

radio beacons; 

(4) Engaging in any operations at sea 

directly in support of, or in preparation 

for, any of the activities previously 

described in paragraphs (1) through (3) 

of this definition, including, but not 

limited to, bunkering; 

(5) Engaging in transshipment, either 

unloading or loading fish. 

Fishing day means, for the purpose of 

§ 300.223, any day in which a fishing 

vessel of the United States equipped 

with purse seine gear searches for fish, 

deploys a FAD, services a FAD, or sets 

a purse seine, with the exception of 

setting a purse seine solely for the 

purpose of testing or cleaning the gear 

and resulting in no catch. 

Fishing trip means a period that a 

fishing vessel spends at sea between 

port visits and during which any fishing 

occurs. 

Fishing vessel means any vessel used 

or intended for use for the purpose of 

fishing, including bunkering and other 

support vessels, carrier vessels and 

other vessels that unload or load fish in 

a transshipment, and any other vessel 

directly involved in fishing. 

High seas means the waters beyond 

the territorial sea or exclusive economic 

zone (or the equivalent) of any nation, 

to the extent that such territorial sea or 

exclusive economic zone (or the 

equivalent) is recognized by the United 

States. 

Member of the Commission means 

any Contracting Party to the WCPF 

Convention, and, unless otherwise 

stated in context, any territory that has 

been authorized by an appropriate 

Contracting Party to participate in the 

Commission and its subsidiary bodies 

pursuant to Article 43 of the WCPF 

Convention and any fishing entity that 

has agreed to be bound by the regime 

established by the WCPF Convention 

pursuant to Annex I of the WCPF 

Convention. 

Pacific Islands Regional 

Administrator means the Regional 

Administrator, Pacific Islands Region, 

NMFS, or a designee (1601 Kapiolani 

Blvd., Suite 1110, Honolulu, HI 96814). 

Person means any individual 

(whether or not a citizen or national of 

the United States), any corporation, 

partnership, association, or other entity 

(whether or not organized or existing 

under the laws of any State), and any 

Federal, State, local, or foreign 

government or any entity of any such 

government. 

Purse seine means a floated and 

weighted encircling net that is closed by 

means of a drawstring threaded through 

rings attached to the bottom of the net. 

State means each of the several States 

of the United States, the District of 

Columbia, the Commonwealth of the 

Northern Mariana Islands, American 

Samoa, Guam, and any other 

commonwealth, territory, or possession 

of the United States. 

Transshipment means the unloading 

of fish from one fishing vessel and its 

direct transfer to, and loading on, 

another fishing vessel, either at sea or in 

port. 

WCPF Convention means the 

Convention on the Conservation and 

Management of Highly Migratory Fish 

Stocks in the Western and Central 

Pacific Ocean (including any annexes, 

amendments, or protocols that are in 

force, or have come into force, for the 

United States) that was adopted at 

Honolulu, Hawaii, on September 5, 

2000, by the Multilateral High-Level 

Conference on Highly Migratory Fish 

Stocks in the Western and Central 

Pacific Ocean. 

WCPFC observer means a person 

authorized by the Commission in 

accordance with any procedures 

established by the Commission to 

undertake vessel observer duties as part 

of the Commission’s Regional Observer 

Programme, including an observer 

deployed as part of a NMFSadministered observer program or as 

part of another national or sub-regional 

observer program, provided that such 

program is authorized by the 

Commission to be part of the 

Commission’s Regional Observer 

Programme. 

§ 300.212 Vessel permit endorsements. 

[Reserved] 

§ 300.213 Vessel information. [Reserved] 

§ 300.214 Compliance with laws of other 

nations. [Reserved] 

§ 300.215 Observers. 

(a) Applicability. [Reserved] 

(b) Notifications. [Reserved] 

(c) Accommodating observers. The 

operator and each member of the crew 

of the fishing vessel shall act in 

accordance with this paragraph with 

respect to any WCPFC observer. 

(1) The operator and crew shall allow 

and assist WCPFC observers to: 

(i) Embark at a place and time 

determined by NMFS or otherwise 

agreed to by NMFS and the vessel 

operator; 

(ii) Have access to and use of all 

facilities and equipment on board as 

necessary to conduct observer duties, 

including, but not limited to: full access 

to the bridge, the fish on board, and 

areas which may be used to hold, 

process, weigh and store fish; full access 

to the vessel’s records, including its logs 

and documentation, for the purpose of 

inspection and copying; access to, and 

use of, navigational equipment, charts 

and radios; and access to other 

information relating to fishing; 

(iii) Remove samples; 

(iv) Disembark at a place and time 

determined by NMFS or otherwise 

agreed to by NMFS and the vessel 

operator; and 

(v) Carry out all duties safely. 

(2) The operator shall provide the 

WCPFC observer, while on board the 

vessel, with food, accommodation and 

medical facilities of a reasonable 

standard equivalent to those normally 

available to an officer on board the 

vessel, at no expense to the WCPFC 

observer. 

(3) The operator and crew shall not 

assault, obstruct, resist, delay, refuse 

boarding to, intimidate, harass or 

interfere with WCPFC observers in the 

performance of their duties, or attempt 

to do any of the same. 

(d) Related observer requirements. 

[Reserved] 

§ 300.216 Transshipment. [Reserved] 

§ 300.217 Vessel identification. [Reserved] 

§ 300.218 Reporting and recordkeeping 

requirements. [Reserved] 

§ 300.219 Vessel monitoring system. 

[Reserved] 

§ 300.220 Confidentiality of information. 

[Reserved] 

§ 300.221 Facilitation of enforcement and 

inspection. [Reserved] 

§ 300.222 Prohibitions. 

In addition to the prohibitions in 

§ 300.4, it is unlawful for any person to: 

(a) through (u) [Reserved] 

(v) Use a fishing vessel equipped with 

purse seine gear to fish in the ELAPS 

while the fishery is closed under 

§ 300.223(a). 


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(w) Set a purse seine around, near or 

in association with a FAD or deploy or 

service a FAD in contravention of 

§ 300.223(b). 

(x) Use a fishing vessel equipped with 

purse seine gear to fish in an area closed 

under § 300.223(c). 

(y) Discard fish at sea in the ELAPS 

in contravention of § 300.223(d). 

(z) Fail to carry an observer as 

required in § 300.223(e). 

(aa) Fail to comply with the sea turtle 

mitigation gear and handling 

requirements of § 300.223(f). 

§ 300.223 Purse seine fishing restrictions. 

All dates used in this section are in 

Universal Coordinated Time, also 

known as UTC; for example: the year 

2009 starts at 00:00 on January 1, 2009 

UTC and ends at 24:00 on December 31, 

2009 UTC; and August 1, 2009, begins 

at 00:00 UTC and ends at 24:00 UTC. 

(a) Fishing effort limits. This section 

establishes limits on the number of 

fishing days that fishing vessels of the 

United States equipped with purse seine 

gear may collectively spend in the 

ELAPS. 

(1) The limits are as follows: 

(i) For each of the years 2009, 2010, 

and 2011, there is a limit of 3,882 

fishing days. 

(ii) For each of the two-year periods 

2009–2010 and 2010–2011, there is a 

limit of 6,470 fishing days. 

(iii) For the three-year period 2009– 

2011, there is a limit of 7,764 fishing 

days. 

(2) NMFS will determine the number 

of fishing days spent in the ELAPS in 

each of the applicable time periods 

using data submitted in logbooks and 

other available information. After NMFS 

determines that the limit in any 

applicable time period is expected to be 

reached by a specific future date, and at 

least seven calendar days in advance of 

the closure date, NMFS will publish a 

notice in the Federal Register 

announcing that the purse seine fishery 

in the ELAPS will be closed starting on 

that specific future date and will remain 

closed until the end of the applicable 

time period. 

(3) Once a fishery closure is 

announced pursuant to paragraph (a)(2) 

of this section, fishing vessels of the 

United States equipped with purse seine 

gear may not be used to fish in the 

ELAPS during the period specified in 

the Federal Register notice. 

(b) Use of fish aggregating devices. 

From August 1 through September 30, 

2009, and from July 1 through 

September 30 in each of 2010 and 2011, 

owners, operators, and crew of fishing 

vessels of the United States shall not do 

any of the following in the Convention 

Area: 

(1) Set a purse seine around a FAD or 

within one nautical mile of a FAD. 

(2) Set a purse seine in a manner 

intended to capture fish that have 

aggregated in association with a FAD, 

such as by setting the purse seine in an 

area from which a FAD has been moved 

or removed within the previous eight 

hours, or setting the purse seine in an 

area in which a FAD has been inspected 

or handled within the previous eight 

hours, or setting the purse seine in an 

area into which fish were drawn by a 

vessel from the vicinity of a FAD. 

(3) Deploy a FAD into the water. 

(4) Repair, clean, maintain, or 

otherwise service a FAD, including any 

electronic equipment used in 

association with a FAD, in the water or 

on a vessel while at sea, except that: 

(i) A FAD may be inspected and 

handled as needed to identify the owner 

of the FAD, identify and release 

incidentally captured animals, un-foul 

fishing gear, or prevent damage to 

property or risk to human safety; and 

(ii) A FAD may be removed from the 

water and if removed may be cleaned, 

provided that it is not returned to the 

water. 

(c) Closed areas. (1) Effective January 

1, 2010, through December 31, 2011, a 

fishing vessel of the United States may 

not be used to fish with purse seine gear 

on the high seas within either Area A or 

Area B, the respective boundaries of 

which are the four lines connecting, in 

the most direct fashion, the coordinates 

specified as follows: 

(i) Area A: 7° N. latitude and 134° E. 

longitude; 7° N. latitude and 153° E. 

longitude; 0° latitude and 153° E. 

longitude; and 0° latitude and 134° E. 

longitude. 

(ii) Area B: 4° N. latitude and 156° E. 

longitude; 4° N. latitude and 176° E. 

longitude; 12° S. latitude and 176° E. 

longitude; and 12° S. latitude and 156° 

E. longitude. 

(2) NMFS may, through publication of 

a notice in the Federal Register, nullify 

any or all of the area closures specified 

in paragraph (c)(1) of this section. 

(d) Catch retention. (1) Based on its 

determination as to whether an 

adequate number of WCPFC observers is 

available for the purse seine vessels of 

all Members of the Commission as 

necessary to ensure compliance by such 

vessels with the catch retention 

requirements established by the 

Commission, NMFS will, through 

publication of a notice in the Federal 

Register, announce the effective date of 

the provisions of paragraph (d) of this 

section. The effective date will be no 

earlier than January 1, 2010. 

(2) If, after announcing the effective 

date of the these requirements under 

paragraph (1) of this section, NMFS 

determines that there is no longer an 

adequate number of WCPFC observers 

available for the purse seine vessels of 

all Members of the Commission as 

necessary to ensure compliance by such 

vessels with the catch retention 

requirements established by the 

Commission, NMFS may, through 

publication of a notice in the Federal 

Register, nullify any or all of the 

requirements specified in paragraph (d) 

of this section. 

(3) Effective from the date announced 

pursuant to paragraph (d)(1) of this 

section through December 31, 2011, a 

fishing vessel of the United States 

equipped with purse seine gear may not 

discard at sea within the Convention 

Area any bigeye tuna (Thunnus obesus), 

yellowfin tuna (Thunnus albacares), or 

skipjack tuna (Katsuwonus pelamis), 

except in the following circumstances 

and with the following conditions: 

(i) Fish that are unfit for human 

consumption, including but not limited 

to fish that are spoiled, pulverized, 

severed, or partially consumed at the 

time they are brought on board, may be 

discarded. 

(ii) If at the end of a fishing trip there 

is insufficient well space to 

accommodate all the fish captured in a 

given purse seine set, fish captured in 

that set may be discarded, provided that 

no additional purse seine sets are made 

during the fishing trip. 

(iii) If a serious malfunction of 

equipment occurs that necessitates that 

fish be discarded. 

(e) Observer coverage. (1) From 

August 1 through September 30, 2009, 

a fishing vessel of the United States that 

is equipped with purse seine gear may 

not be used to fish in the Convention 

Area without a WCPFC observer or an 

observer deployed by NMFS on board. 

This requirement does not apply to 

fishing trips that meet any of the 

following conditions: 

(i) The portion of the fishing trip 

within the Convention Area takes place 

entirely within areas under U.S. 

jurisdiction or entirely within areas 

under jurisdiction of a single nation 

other than the United States. 

(ii) No fishing takes place during the 

fishing trip in the Convention Area in 

the area between 20° N. latitude and 20° 

S. latitude. 

(iii) The Pacific Islands Regional 

Administrator has determined that an 

observer is not available for the fishing 

trip and a written copy of the Pacific 

Islands Regional Administrator’s 

determination, which must include the 

approximate start date of the fishing trip 

and the port of departure, is carried on 


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board the fishing vessel during the 

entirety of the fishing trip. 

(2) Effective January 1, 2010, through 

December 31, 2011, a fishing vessel of 

the United States may not be used to 

fish with purse seine gear in the 

Convention Area without a WCPFC 

observer on board. This requirement 

does not apply to fishing trips that meet 

any of the following conditions: 

(i) The portion of the fishing trip 

within the Convention Area takes place 

entirely within areas under U.S. 

jurisdiction or entirely within the areas 

under jurisdiction of a single nation 

other than the United States. 

(ii) No fishing takes place during the 

fishing trip in the Convention Area in 

the area between 20° N. latitude and 20° 

S. latitude. 

(iii) The Pacific Islands Regional 

Administrator has determined that a 

WCPFC observer is not available for the 

fishing trip and a written copy of the 

Pacific Islands Regional Administrator’s 

determination, which must include the 

approximate start date of the fishing trip 

and the port of departure, is carried on 

board the fishing vessel during the 

entirety of the fishing trip. 

(3) Owners, operators, and crew of 

fishing vessels subject to paragraphs 

(e)(1) or (e)(2) of this section must 

accommodate WCPFC observers in 

accordance with the provisions of 

§ 300.215(c). 

(4) Meeting any of the conditions in 

paragraphs (e)(1)(i), (e)(1)(ii), (e)(1)(iii), 

(e)(2)(i), (e)(2)(ii), or (e)(2)(iii) of this 

section does not exempt a fishing vessel 

from having to carry and accommodate 

a WCPFC observer pursuant to § 300.215 

or other applicable regulations. 

(f) Sea turtle take mitigation 

measures. (1) Possession and use of 

required mitigation gear. Any owner or 

operator of a fishing vessel of the United 

States equipped with purse seine gear 

that is used to fish in the Convention 

Area must carry aboard the vessel the 

following gear: 

(i) Dip net. A dip net is intended to 

facilitate safe handling of sea turtles and 

access to sea turtles for purposes of 

removing sea turtles from fishing gear, 

bringing sea turtles aboard the vessel 

when appropriate, and releasing sea 

turtles from the vessel. The minimum 

design standards for dip nets that meet 

the requirements of this section are: 

(A) An extended reach handle. The 

dip net must have an extended reach 

handle with a minimum length of 150 

percent of the freeboard height. The 

extended reach handle must be made of 

wood or other rigid material able to 

support a minimum of 100 lb (34.1 kg) 

without breaking or significant bending 

or distortion. 

(B) Size of dip net. The dip net must 

have a net hoop of at least 31 inches 

(78.74 cm) inside diameter and a bag 

depth of at least 38 inches (96.52 cm). 

The bag mesh openings may be no more 

than 3 inches 3 inches (7.62 cm 7.62 

cm) in size. 

(ii) Optional turtle hoist. A turtle hoist 

is used for the same purpose as a dip 

net. It is not a required piece of gear, but 

a turtle hoist may be carried on board 

and used instead of the dip net to 

handle sea turtles as required in 

paragraph (f)(2) of this section. The 

minimum design standards for turtle 

hoists that are used instead of dip nets 

to meet the requirements of this section 

are: 

(A) Frame and net. The turtle hoist 

must consist of one or more rigid frames 

to which a bag of mesh netting is 

securely attached. The frame or smallest 

of the frames must have a minimum 

opening (e.g., inside diameter, if circular 

in shape) of 31 inches (78.74 cm) and be 

capable of supporting a minimum of 100 

lb (34.1 kg). The frame or frames may be 

hinged or otherwise designed so they 

can be folded for ease of storage, 

provided that they have no sharp edges 

and can be quickly reassembled. The 

bag mesh openings may be no more than 

3 inches x 3 inches (7.62 cm x 7.62 cm) 

in size. 

(B) Lines. Lines used to lower and 

raise the frame and net must be securely 

attached to the frame in multiple places 

such that the frame remains stable when 

lowered and raised. 

(2) Handling requirements. Any 

owner or operator of a fishing vessel of 

the United States equipped with purse 

seine gear that is used to fish in the 

Convention Area must, if a sea turtle is 

observed to be enclosed or entangled in 

a purse seine, a FAD, or other fishing 

gear, comply with these handling 

requirements, including using the 

required mitigation gear specified in 

paragraph (f)(1) of this section as 

prescribed in these handling 

requirements. Any captured or 

entangled sea turtle must be handled in 

a manner to minimize injury and 

promote survival. 

(i) Sea turtles enclosed in purse 

seines. If the sea turtle is observed 

enclosed in a purse seine but not 

entangled, it must be released 

immediately from the purse seine with 

the dip net or turtle hoist. 

(ii) Sea turtles entangled in purse 

seines. If the sea turtle is observed 

entangled in a purse seine, the net roll 

must be stopped as soon as the sea turtle 

comes out of the water, and must not 

start again until the turtle has been 

disentangled and released. The sea 

turtle must be handled and released in 

accordance with paragraphs (f)(2)(iv), 

(f)(2)(v), (f)(2)(vi), and (f)(2)(vii) of this 

section. 

(iii) Sea turtles entangled in FADs. If 

the sea turtle is observed entangled in 

a FAD, it must be disentangled or the 

FAD must be cut immediately so as to 

remove the sea turtle. The sea turtle 

must be handled and released in 

accordance with paragraphs (f)(2)(iv), 

(f)(2)(v), (f)(2)(vi), and (f)(2)(vii) of this 

section. 

(iv) Disentangled sea turtles that 

cannot be brought aboard. After 

disentanglement, if the sea turtle is not 

already on board the vessel and it is too 

large to be brought aboard or cannot be 

brought aboard without sustaining 

further injury, it shall be left where it is 

in the water, or gently moved, using the 

dip net or turtle hoist if necessary, to an 

area away from the fishing gear and 

away from the propeller. 

(v) Disentangled sea turtles that can 

be brought aboard. After 

disentanglement, if the sea turtle is not 

too large to be brought aboard and can 

be brought aboard without sustaining 

further injury, the following actions 

shall be taken: 

(A) Using the dip net or a turtle hoist, 

the sea turtle must be brought aboard 

immediately; and 

(B) The sea turtle must be handled in 

accordance with the procedures in 

paragraphs (f)(2)(vi) and (f)(2)(vii) of this 

section. 

(vi) Sea turtle resuscitation. If a sea 

turtle brought aboard appears dead or 

comatose, the following actions must be 

taken: 

(A) The sea turtle must be placed on 

its belly (on the bottom shell or 

plastron) so that it is right side up and 

its hindquarters elevated at least 6 

inches (15.24 cm) for a period of no less 

than 4 hours and no more than 24 

hours. The amount of the elevation 

varies with the size of the sea turtle; 

greater elevations are needed for larger 

sea turtles; 

(B) A reflex test must be administered 

at least once every 3 hours. The test is 

to be performed by gently touching the 

eye and pinching the tail of a sea turtle 

to determine if the sea turtle is 

responsive; 

(C) The sea turtle must be kept shaded 

and damp or moist (but under no 

circumstances place the sea turtle into 

a container holding water). A watersoaked towel placed over the eyes (not 

covering the nostrils), carapace and 

flippers is the most effective method of 

keeping a sea turtle moist; and 

(D) If the sea turtle revives and 

becomes active, it must be returned to 

the sea in the manner described in 

paragraph (f)(2)(vii) of this section. Sea 


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turtles that fail to revive within the 24– 

hour period must also be returned to the 

sea in the manner described in 

paragraph (f)(2)(vii) of this section, 

unless NMFS requests that the turtle or 

part thereof be kept on board and 

delivered to NMFS for research 

purposes. 

(vii) Sea turtle release. After handling 

a sea turtle in accordance with the 

requirements of paragraphs (f)(2)(v) and 

(f)(2)(vi) of this section, the sea turtle 

must be returned to the ocean after 

identification unless NMFS requests the 

retention of a dead sea turtle for 

research. In releasing a sea turtle the 

vessel owner or operator must: 

(A) Place the vessel engine in neutral 

gear so that the propeller is disengaged 

and the vessel is stopped; 

(B) Using the dip net or a turtle hoist 

to release the sea turtle with little 

impact, gently release the sea turtle 

away from any deployed gear; and 

(C) Observe that the turtle is safely 

away from the vessel before engaging 

the propeller and continuing operations. 

(viii) Other sea turtle requirements. 

No sea turtle, including a dead turtle, 

may be consumed or sold. A sea turtle 

may be landed, offloaded, transshipped 

or kept below deck only if NMFS 

requests the retention of a dead sea 

turtle or a part thereof for research. 

[FR Doc. E9–18583 Filed 8–3–09; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 09100091344–9056–02] 

RIN 0648–XQ72 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pacific Ocean Perch 

in the West Yakutat District of the Gulf 

of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for Pacific ocean perch in the 

West Yakutat District of the Gulf of 

Alaska (GOA). This action is necessary 

to prevent exceeding the 2009 total 

allowable catch (TAC) of Pacific ocean 

perch in the West Yakutat District of the 

GOA. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), July 31, 2009, through 2400 

hrs, A.l.t., December 31, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Patty Britza, 907–586–7376. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP) prepared by the North 

Pacific Fishery Management Council 

under authority of the MagnusonStevens Fishery Conservation and 

Management Act. Regulations governing 

fishing by U.S. vessels in accordance 

with the FMP appear at subpart H of 50 

CFR part 600 and 50 CFR part 679. 

The 2009 TAC of Pacific ocean perch 

in the West Yakutat District of the GOA 

is 1,108 metric tons (mt) as established 

by the final 2009 and 2010 harvest 

specifications for groundfish of the GOA 

(74 FR 7333, February 17, 2009). 

In accordance with § 679.20(d)(1)(i), 

the Administrator, Alaska Region, 

NMFS (Regional Administrator), has 

determined that the 2009 TAC of Pacific 

ocean perch in the West Yakutat District 

of the GOA will soon be reached. 

Therefore, the Regional Administrator is 

establishing a directed fishing 

allowance of 1,098 mt, and is setting 

aside the remaining 10 mt as bycatch to 

support other anticipated groundfish 

fisheries. In accordance with 

§ 679.20(d)(1)(iii), the Regional 

Administrator finds that this directed 

fishing allowance has been reached. 

Consequently, NMFS is prohibiting 

directed fishing for Pacific ocean perch 

in the West Yakutat District of the GOA. 

After the effective date of this closure 

the maximum retainable amounts at 

§ 679.20(e) and (f) apply at any time 

during a trip. 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA 

(AA), finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 5 

U.S.C. 553(b)(B) as such requirement is 

impracticable and contrary to the public 

interest. This requirement is 

impracticable and contrary to the public 

interest as it would prevent NMFS from 

responding to the most recent fisheries 

data in a timely fashion and would 

delay the closure of Pacific ocean perch 

in the West Yakutat District of the GOA. 

NMFS was unable to publish a notice 

providing time for public comment 

because the most recent, relevant data 

only became available as of July 29, 

2009. 

The AA also finds good cause to 

waive the 30-day delay in the effective 

date of this action under 5 U.S.C. 

553(d)(3). This finding is based upon 

the reasons provided above for waiver of 

prior notice and opportunity for public 

comment. 

This action is required by § 679.20 

and is exempt from review under 

Executive Order 12866. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: July 30, 2009. 

Kristen C. Koch, 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. E9–18582 Filed 7–30–09; 8:45 am] 

BILLING CODE 3510–22–S 


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