Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / Proposed Rules 53455 

proposal, and it will allow time for 

cooperative efforts to refine the 

proposal. We will work toward adoption 

of a final rule prior to the 2011 summer 

boating season. We will consider all 

comments and information received 

during the comment period in preparing 

a final rule. 

DATES: Written or electronic comments 

on the proposed rule and draft 

Environmental Assessment (EA) from 

all interested parties are encouraged and 

must be received no later than January 

15, 2010. All comments and material 

received, including names and 

addresses, will become part of the 

administrative record and may be 

released to the public. 

ADDRESSES: Comments on the proposed 

rule, draft EA and any of the supporting 

documents can be submitted by any of 

the following methods: 

• E-mail: orca.plan@noaa.gov. 

• Federal e-rulemaking Portal: http:// 

www.regulations.gov. 

• Mail: Assistant Regional 

Administrator, Protected Resources 

Division, Northwest Regional Office, 

National Marine Fisheries Service, 7600 

Sand Point Way NE, Seattle, WA 98115. 

The draft EA and other supporting 

documents are available on 

Regulations.gov and the NMFS 

Northwest Region Web site at http:// 

www.nwr.noaa.gov/. 

You may submit information and 

comments concerning this Proposed 

Rule, the draft EA, or any of the 

supporting documents by any one of 

several methods identified above. We 

will consider all comments and 

information received during the 

comment period in preparing a final 

rule. Before including your address, 

phone number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment- including your 

personal identifying information- may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

FOR FURTHER INFORMATION CONTACT: 

Lynne Barre, Northwest Regional Office, 

206–526–4745; or Trevor Spradlin, 

Office of Protected Resources, 301–713– 

2322. 

SUPPLEMENTARY INFORMATION: 

Background 

On July 29, 2009, NMFS proposed 

regulations under the Endangered 

Species Act and Marine Mammal 

Protection Act to prohibit vessels from 

approaching killer whales within 200 

yards and from parking in the path of 

whales for vessels in inland waters of 

Washington State (74 FR 37674). The 

proposed regulations would also 

prohibit vessels from entering a 

conservation area during a defined 

season. Certain vessels would be exempt 

from the prohibitions. The purpose of 

the action is to protect killer whales 

from interference and noise associated 

with vessels. In the final rule 

announcing the endangered listing of 

Southern Resident killer whales NMFS 

identified disturbance and sound 

associated with vessels as a potential 

contributing factor in the recent decline 

of this population. The Recovery Plan 

for Southern Resident killer whales calls 

for evaluating current guidelines and 

assessing the need for regulations and/ 

or protected areas (73 FR 4176; January 

24, 2008). We developed the proposed 

rule after considering comments 

submitted in response to an Advance 

Notice of Proposed Rulemaking (72 FR 

13464; March 22, 2007) and preparing a 

draft environmental assessment. 

Dated: October 13, 2009. 

Helen Golde, 

Deputy Director, Office of Protected 

Resources, National Marine Fisheries Service. 

[FR Doc. E9–25063 Filed 10–16–09; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 300 

[Docket No. 0907231161–91189–01] 

RIN 0648–AY08 

International Fisheries; Pacific Tuna 

Fisheries; Fishing Restrictions in the 

Longline and Purse Seine Fisheries in 

the Eastern Pacific Ocean in 2009, 

2010, and 2011 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes regulations 

under the Tuna Conventions Act of 

1950 (Act) to implement a decision of 

the Inter-American Tropical Tuna 

Commission (IATTC). That decision 

requires, among other things, that 

members of the IATTC, including the 

United States, ensure that catches in the 

eastern Pacific Ocean (EPO) of bigeye 

tuna (Thunnus obesus) by longline 

vessels greater than 24 meters in length 

do not exceed specified levels in each 

of the years 2009, 2010, and 2011, and 

that purse seine vessels class sizes 4–6 

do not fish in the EPO during an 

established closure period. This action 

is necessary for the United States to 

satisfy its obligations under the 1949 

Convention for the Establishment of an 

Inter-American Tropical Tuna 

(Convention), to which it is a 

Contracting Party. 

DATES: Comments must be submitted in 

writing by November 9, 2009. A public 

hearing will be held at 9 a.m. to 12 p.m. 

PDT, October 21, 2009, Long Beach, CA. 

ADDRESSES: You may submit comments 

on this proposed rule, identified by 

0648–AY08, the Initial Regulatory 

Flexibility Analysis (IRFA), or the draft 

environmental assessment (EA) 

prepared for the proposed rule by any 

of the following methods: 

• Electronic submissions: Submit all 

electronic public comments via the 

Federal e-Rulemaking portal, at http:// 

www.regulations.gov. 

• Mail: Rod McInnis, Regional 

Administrator, NMFS Southwest 

Regional Office (SWR), 501 W. Ocean 

Blvd, Suite 4200, Long Beach, Ca 90802. 

Include the identifier ‘‘0648–AY08’’ in 

the comments. 

• Public hearing: The hearing will be 

held at 501 W. Ocean Boulevard, Suite 

4200, Long Beach, Ca 90802. The public 

may also participate in the public 

hearing via conference line: 888–989– 

6480; participant passcode: 29574. 

Instructions: All comments received 

are part of the public record and 

generally will be posted to http:// 

www.regulations.gov without change. 

All personal identifying information (for 

example, name and address) voluntarily 

submitted by the commenter may be 

publicly accessible. Do not submit 

confidential business information or 

otherwise sensitive or protected 

information. NMFS will accept 

anonymous comments (if submitting 

comments via the Federal e-Rulemaking 

portal, enter ‘‘N/A’’ in the relevant 

required fields if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word or Excel, WordPerfect, or Adobe 

PDF file formats only. 

Copies of the EA prepared under the 

authority of the National Environmental 

Policy Act and the IRFA are available at 

http://swr.nmfs.noaa.gov/ or may be 

obtained from Rod McInnis, Regional 

Administrator, NMFS SWR (see 

ADDRESSES). 

FOR FURTHER INFORMATION CONTACT: 

Heidi Hermsmeyer, NMFS SWR, 562– 

980–4036. 

SUPPLEMENTARY INFORMATION: 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
53456 Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / Proposed Rules 

Electronic Access 

This proposed rule is also accessible 

at http://www.gpoaccess.gov/fr. 

Background on the Convention and 

the IATTC 

The Convention entered into force in 

May 1949. The full text of the 

Convention is available at: http:// 

www.iattc.org/PDFFiles/ 

IATTClconventionl1949.pdf. The 

Convention Area includes the waters 

bounded by the coast of the Americas, 

the 40 N. and 40 S. parallels, and the 

150 W. meridian. The Convention 

focuses on the conservation and 

management of highly migratory species 

(HMS) and the management of fisheries 

for HMS, and has provisions related to 

non-target, associated, and dependent 

species in such fisheries. 

The IATTC, established under the 

Convention, is comprised of the 

Members, including High Contracting 

Parties to the Convention and fishing 

entities that have agreed to be bound by 

the regime established by the 

Convention. Other entities that 

participate in the IATTC include 

Cooperating Non-Parties, Cooperating 

Fishing Entities, and Regional Economic 

Integration Organizations. Cooperating 

Fishing Entities participate with the 

authorization of the High Contracting 

Parties with responsibility for the 

conduct of their foreign affairs. 

Cooperating Non-Parties are identified 

by the IATTC on a yearly basis. In 

accepting Cooperating Non-Party status, 

such States agree to implement the 

decisions of the IATTC in the same 

manner as Members. 

The current Members of the IATTC 

are Colombia, Costa Rica, Ecuador, El 

Salvador, France, Guatemala, Japan, 

Mexico, Nicaragua, Panama, Peru, 

Republic of Korea, Spain, United States, 

Vanuatu, and Venezuela. The current 

Cooperating Non-Parties, Cooperating 

Fishing Entities and Regional Economic 

Integration Organization are Belize, 

Canada, China, Cook Islands, Kiribati, 

Chinese Taipei, and the European 

Union. 

International Obligations of the United 

States under the Convention 

As a Contracting Party to the 

Convention and a Member of the 

IATTC, the United States is legally 

bound to implement the decisions of the 

IATTC. The Act (16 U.S.C. 951–961 and 

971 et seq.) authorizes the Secretary of 

Commerce, in consultation with the 

Secretary of State and the Secretary of 

the Department in which the United 

States Coast Guard (USCG) is operating 

(currently the Department of Homeland 

Security), to promulgate such 

regulations as may be necessary to carry 

out the obligations of the United States 

under the Convention, including the 

decisions of the IATTC. The authority to 

promulgate regulations has been 

delegated to NMFS. 

IATTC Decisions Regarding Longline 

and Purse Seine Fisheries 

At its Eightieth Meeting, in June 2009, 

the IATTC adopted the Resolution on a 

Multiannual Program for the 

Conservation of Tuna in the Eastern 

Pacific Ocean in 2009–2011 (Resolution 

C–09–01) related to bigeye and 

yellowfin tunas (Thunnus albacares) in 

the EPO. The resolution, available with 

other decisions of the IATTC at http:// 

www.iattc.org/ 

ResolutionsActiveENG.htm, places 

certain obligations on the IATTC’s High 

Contracting Parties, Cooperating NonParties, Cooperating Fishing Entity, and 

Regional Economic Integration 

Organization (collectively, CPCs). With 

respect to bigeye tuna, the resolution is 

based in part on the recommendations 

and analysis of IATTC scientific staff 

and the 2009 stock assessment 

completed by IATTC staff. The 

assessment verified that the stock of 

bigeye tuna in the EPO is experiencing 

a fishing mortality rate greater than the 

rate associated with average maximum 

sustainable yield, and the spawning 

stock biomass is below that which 

supports average maximum sustainable 

yield, thus the stock is subject to 

overfishing and is overfished. The 

Convention calls for the IATTC to adopt 

measures designed to maintain or 

restore stocks at levels capable of 

producing maximum sustainable yield, 

as qualified by relevant environmental 

and economic factors. Accordingly, 

Resolution C–09–01 has the objective of 

reducing, over the period 2009–2011, 

the fishing mortality rate for bigeye tuna 

in the EPO. It is estimated that the 

fishing mortality of bigeye tuna would 

be reduced by 19% in 2009, 20% in 

2010, and 24% in 2010 based on 

averages over the 1995–2003 timeframe. 

Among other provisions, the 

resolution establishes specific catch 

limits for bigeye tuna captured by 

longline vessels over 24 meters in length 

(large-scale longline vessels) for the 

years 2009, 2010, and 2011. The limits 

are prescribed relative to catches made 

during specified baseline periods, and 

commensurate with the estimated 

reductions in catch of bigeye tuna in the 

purse seine fishery with the 

implementation of the closure period. 

China, Japan, Korea, and Chinese 

Taipei, the countries with the highest 

levels of bigeye tuna catch in longline 

fisheries in the EPO, have specific catch 

levels for 2009 and 2010. Other CPCs 

must ensure their annual longline 

catches of bigeye tuna in the EPO during 

2009–2010 do not exceed the greater of 

500 metric tons (mt) or their respective 

catches of bigeye tuna in 2001. The U.S. 

catch of bigeye tuna in longline fisheries 

in the EPO for 2001 was only about 150 

mt; therefore, the U.S. longline catch 

limit of bigeye tuna would be 500 mt in 

the EPO for 2009 and 2010. For 2011, 

the total annual longline quotas of 

bigeye tuna in the EPO would be 

adjusted to be commensurate with the 

measures adopted for purse seine 

vessels by the Commission in 2011. 

IATTC Resolution C–09–01 also 

establishes a purse seine closure for all 

purse seine vessels class sizes 4–6 in the 

EPO for a period of 59 days in 2009, 62 

days in 2010, and 73 days in 2011. Each 

CPC must choose one of two periods in 

each year as follows: for 2009, August 

1 to September 28, or November 21 to 

January 18; for 2010, July 29 to 

September 28, or November 18 to 

January 18; and for 2011, July 18 to 

September 28, or November 7 to January 

18. In 2011, the results of the 

conservation measures adopted will be 

evaluated by the Commission, in the 

context of the results of the stock 

assessments for 2011 and, depending on 

the conclusions reached by the 

scientific staff of the Commission, the 

period of duration of the closure for that 

year shall be ratified or adjusted. 

Notwithstanding theses provisions, 

purse seine vessels of IATTC capacity 

class size 4 (between 182 and 272 mt 

carrying capacity) will be able to make 

one single fishing trip of up to 30 days 

duration during the specified closure 

periods, provided that any such vessel 

carries an observer of the On-Board 

Observer Program of the Agreement on 

the International Dolphin Conservation 

Program (AIDCP). 

IATTC Resolution C–09–01 also 

establishes a closure for all purse seine 

vessels class sizes 4–6 within the area 

between 96° and 110° W. longitude and 

between 4° N. and 3° S. latitude from 

0000 hours on September 29 to 2400 

hours on October 29 for 2009, 2010, and 

2011 (also known as ‘‘el corralito’’ 

closure). 

Furthermore, purse seine vessels 

would continue to be required to retain 

on board and then land all skipjack 

(Katsuwonus pelamis), bigeye, and 

yellowfin tuna caught; however, there 

would be a minor change to the existing 

regulations at 50 CFR 300.24(e) and 

300.25(e)(1) that would amend the 

exception to the tuna retention measure 

and make the regulations only 

applicable to purse seine vessels class 

sizes 4–6. Tuna would not need to be 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / Proposed Rules 53457 

retained for fish considered unfit for 

human consumption for reasons other 

than size, and the single exemption of 

this would be the final set of a trip, 

when there may be insufficient well 

space remaining to accommodate all the 

tuna caught in that set. Currently the 

language is slightly different than this 

but with similar intent, so the 

amendment would serve to make the 

regulatory language consistent with 

IATTC Resolution C–09–01, but would 

most likely not result in any changes to 

the purse seine fishery. The efficacy and 

impacts of the tuna retention 

requirement will be reviewed at the 

annual Commission meeting in 2010 

and the Commission will decide 

whether to continue it. 

Proposed Action 

Restrictions in the Longline Fishery 

The bigeye tuna limits established in 

Resolution C–09–01 are termed ‘‘catch’’ 

limits. The annual limit on harvests by 

large-scale longline vessels covers all 

bigeye tuna that is retained on board, as 

opposed to all bigeye tuna caught. 

Accordingly, the proposed rule would 

establish a limit of 500 mt of bigeye tuna 

that is caught and retained. The limit 

would have the purpose of reducing 

fishing mortality of EPO bigeye tuna. 

Once NMFS determines in any of the 

years 2009, 2010, or 2011 that the limit 

is expected to be reached by a specific 

future date in that year, NMFS would 

publish a notice in the Federal Register 

announcing that the limit is expected to 

be reached and that specific restrictions 

will be effective on that particular date 

until the end of the calendar year. 

NMFS would publish the notice at least 

seven calendar days before the effective 

date of the restrictions to provide 

fishermen advance notice of the 

restrictions. NMFS would also endeavor 

to make publicly available, such as on 

a website, regularly updated estimates 

and/or projections of bigeye tuna 

landings in order to help fishermen plan 

for the possibility of the limit being 

reached. In Resolution C–09–01, the 

IATTC has reserved the option of 

reversing or amending its adoption of 

the bigeye tuna catch limits in longline 

fisheries at its regular annual session in 

June 2011. If such a decision occurs, 

NMFS will take appropriate action to 

rescind any closed areas that are 

established by regulation. 

Starting on the announced date and 

extending through the last day of that 

calendar year, it would be prohibited to 

use a U.S. fishing vessel greater than 24 

meters in length to retain on board, 

transship, or land bigeye tuna captured 

in the Convention Area by longline gear. 

Bigeye tuna caught incidentally in the 

longline fishery starting on the 

announced date (e.g., in the shallow-set 

longline fishery targeting swordfish) 

would be required to be discarded. Any 

bigeye tuna already on board an 

applicable longline fishing vessel upon 

the effective date of the restrictions may 

be retained on board, transshipped, and/ 

or landed, provided that they are landed 

within 14 days after the restrictions 

become effective. In the case of a vessel 

that has declared to NMFS pursuant to 

50 CFR 665.23(a) [applicable to the 

Hawaii-based longline fishery] that the 

current trip type is shallow-setting, the 

14-day limit would be waived, but the 

number of bigeye tuna retained on 

board, transshipped, or landed must not 

exceed the number on board the vessel 

upon the effective date of the 

restrictions, as recorded by the NMFS 

observer on board the vessel. Starting on 

the announced date and extending 

through the last day of that calendar 

year, it would also be prohibited to 

transship bigeye tuna caught in the 

Convention Area by a longline vessel 

greater than 24 meters in length to any 

vessel other than a U.S. fishing vessel 

operating in compliance with a valid 

permit issued under 50 CFR 660.707 or 

665.21. 

These restrictions would not apply to 

bigeye tuna caught by longline vessels 

24 meters in length or less, or to 

longline gear used outside of the 

Convention Area, such as in the western 

and central Pacific Ocean. However, to 

help ensure compliance with the 

restrictions related to bigeye tuna caught 

by longline gear in the Convention Area, 

there would be two additional, related, 

prohibitions that would be in effect 

starting on the announced date and 

extending through the last day of that 

calendar year. First, it would be 

prohibited to fish with a large-scale 

longline vessel both inside and outside 

the Convention Area during the same 

fishing trip, with the exception of a 

fishing trip that is in progress at the time 

the announced restrictions go into 

effect. In that exceptional case, the 

vessel, unless on a declared shallowsetting trip, would still be required to 

land any bigeye tuna taken within the 

Convention Area within 14 days of the 

effective date of the restrictions, as 

described above. Second, if a large-scale 

longline vessel is used to fish outside 

the Convention Area and the vessel 

enters the Convention Area at any time 

during the same fishing trip, the 

longline gear on the fishing vessel must 

be stowed in a manner so as not to be 

readily available for fishing while the 

vessel is in the Convention Area. 

Restrictions in the Purse Seine Fishery 

The proposed rule would prohibit 

fishing in the EPO by all U.S. purse 

seine vessels class sizes 4–6 for a period 

of 59 days in 2009, 62 days in 2010, and 

73 days in 2011. Each CPC is required 

to choose one of two periods in each 

year to implement the closure for all of 

its purse seine vessels. For 2009, NMFS 

does not have the discretion to choose 

the earlier closure period which would 

have started on August 1, 2009, due to 

the timeframe associated with the 

rulemaking process in the United States. 

Thus, for 2009, the closure would be 

from November 21, 2009, to January 18, 

2010. For 2010, the options are: i) July 

29, 2010, to September 28, 2010, or ii) 

November 18, 2010, to January 18, 2011. 

For 2011, the options are: i) July 18, 

2011, to September 28, 2011, or ii) 

November 7, 2011, to January 18, 2012. 

NMFS will select one of the two closure 

periods for 2010 and 2011 after 

consideration of public comments. 

Notwithstanding the general prohibition 

on fishing during the closure period, a 

class size 4 vessel would be allowed to 

make one single fishing trip of up to 30 

days duration during the specified 

closure periods, provided that any such 

vessel carries an observer. In Resolution 

C–09–01, the IATTC has reserved the 

option of reversing its adoption of the 

closure at its regular annual meeting in 

June 2011. If such a decision occurs, 

NMFS would initiate rulemaking to 

implement the IATTC decision. 

The proposed rule would also 

establish an additional area closed to 

fishing for skipjack, bigeye, and 

yellowfin tunas by U.S. purse seine 

vessels class sizes 4–6 from September 

29 to October 29 in 2009, 2010, and 

2011. The area is a rectangle to the west 

of the Galapagos Islands and was chosen 

due to the high levels of juvenile bigeye 

tuna catch by purse seiners in the area. 

The area is between 96 and 110 W. 

longitude and between 4 N. and 3 S. 

latitude in the Convention Area and is 

depicted in Figure 1. Purse seine vessels 

class size 4–6 may transit the closed 

areas with all fishing gear stowed in a 

manner so as not to be readily available 

for fishing. 

Figure 1. Proposed closure area. The 

area that would be closed to purse seine 

fishing is the high seas area within the 

rectangle bounded by the bold black 

lines. This map displays indicative 

maritime boundaries only. 


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53458 Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / Proposed Rules 

Purse seine vessels would also 

continue to be required to retain and 

land all skipjack, bigeye, and yellowfin 

tunas; however, there would be some 

minor changes to the existing 

regulations at 50 CFR 300.24(e) and 

300.25(e)(1). The regulations would be 

amended to be consistent with IATTC 

Resolution C–09–01, so the catch 

retention measure would only be 

applicable to purse seine vessels class 

size 4–6, and the exception to the 

current tuna retention measure would 

be adjusted accordingly. Tuna would 

not need to be retained for fish 

considered unfit for human 

consumption for reasons other than size, 

and the single exemption of this would 

be the final set of a trip, when there may 

be insufficient well space remaining to 

accommodate all the tuna caught in that 

set. Currently the regulatory language is 

slightly different than this but with 

similar intent, so the amendment would 

serve to make the regulatory language 

consistent with the resolution, but 

would most likely not result in any 

significant changes to the purse seine 

fishery. The catch retention requirement 

would then remain in effect through 

December 31, 2011. In Resolution C–09– 

01, the IATTC has reserved the option 

of reversing its adoption of the catch 

retention measure at its regular annual 

session in 2010. If such a decision 

occurs, NMFS will take appropriate 

action to rescind the tuna retention 

provision. 

Classification 

The NMFS Assistant Administrator 

has determined that this proposed rule 

is consistent with the Tuna Conventions 

Act and other applicable laws, subject to 

further consideration after public 

comment. 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866. 

An IRFA was prepared, as required by 

section 603 of the Regulatory Flexibility 

Act. The IRFA describes the economic 

impact this proposed rule, if adopted, 

would have on small entities. A 

description of the action, why it is being 

considered, and the legal basis for this 

action are contained at the beginning of 

this section in the preamble and in the 

SUMMARY section of the preamble. 

The results of the analysis are stated 

below. A copy of this analysis is 

available from NMFS (see ADDRESSES). 

The purpose of this proposed rule is 

to implement IATTC Resolution C–09– 

01 which has the conservation objective 

of reducing the fishing mortality rate of 

bigeye tuna in the EPO. This action is 

necessary for the United States to satisfy 

its international obligations under the 

Convention, and reduce fishing pressure 

on bigeye tuna, a shared international 

resource which is currently subject to 

overfishing according to NMFS. 

Longline Fishery 

The proposed rule would apply to 

owners and operators of U.S. longline 

vessels over 24 meters length overall, 

and U.S. purse seine vessels class sizes 

4–6 fishing for yellowfin, bigeye, and 

skipjack tunas in the Convention Area. 

The total number of affected longline 

vessels is approximated by the average 

number of U.S. large-scale longline 

vessels that have caught bigeye tuna in 

the EPO in 2005–2008. In each of the 

years 2005 through 2008, the number of 

large-scale longline vessels that caught 

bigeye in the EPO were 18, 8, 18, and 

30, respectively. Thus approximately 19 

longline vessels on average have the 

potential to be affected by this proposed 

rule, if adopted. The majority of the 

longline vessels that may be affected by 

this proposed rule are based out of 

Hawaii and American Samoa. There is 

also one longline vessel based out of 

California that would be affected by the 

proposed rule. These longline vessels 

target bigeye tuna using deep sets, and 

during certain parts of the year, portions 

of the Hawaii and American Samoa fleet 

target swordfish using shallow sets. 

Most of the Hawaii and American 

Samoa fleets’ fishing effort has 

traditionally been in the WCPO, but 

fishing has also taken place in the EPO. 

The proportion of the large-scale 

longline vessels annual bigeye tuna 

catches that were captured in the EPO 

from 2005 through 2008 ranged from 5 

percent to 24 percent, and averaged 14 

percent. By far most of the U.S. annual 

EPO bigeye tuna catch has typically 

been made in the second and third 

quarters of the year; in the period 2005– 

2008 the percentages caught in the first, 

second, third, and fourth quarters were 

19, 25, 51, and 5 percent, respectively. 


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Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / Proposed Rules 53459 

As an indication of the size of 

businesses in the fishery, average 

annual fleet-wide ex-vessel revenues 

during 2005–2007 were about $60 

million. Given the number of vessels 

active during that period (127, on 

average), this indicates an average of 

about $500,000 in annual revenue per 

vessel, thus all of the businesses 

affected by the longline measures would 

be considered small business entities. 

For the purpose of projecting baseline 

conditions for the longline fishery under 

no action, this analysis relies on fishery 

performance from 2005 through 2008, 

since prior to 2005 the longline fishery 

regulations underwent major changes 

(the swordfish-directed shallow-set 

longline fishery was closed in 2001 and 

reopened in 2004 with limits on fishing 

effort and turtle interactions). Bigeye 

tuna landings from 2005 through 2008 

suggest that it is unlikely that the 

proposed limit would be reached in any 

of the years during which the limit 

would be in effect (2009, 2010, and 

2011). The proposed limit, 500 mt, is 

less than the amount landed by largescale longline vessels in 2005–2008. 

Large-scale longline vessels fishing in 

the EPO caught about 166 mt of bigeye 

tuna in 2005, 51 mt of bigeye tuna in 

2006, 118 mt of bigeye tuna in 2007, and 

325 mt of bigeye tuna in 2008. Thus, it 

is estimated that even with a large 

increase in the catch rates of bigeye tuna 

in the EPO the 500 mt catch limit would 

not be reached in any of the applicable 

years (2009–2011). 

In summary, all entities affected by 

the bigeye quota in longline fisheries are 

believed to be small entities, so small 

entities would not be disproportionately 

affected relative to large entities. In 

addition, this part of the proposed rule 

is not likely to have a significant impact 

on a substantial number of small entities 

because it is unlikely that the bigeye 

landings limit that would be imposed 

on large-scale longline vessels would be 

reached in any given year. 

Purse Seine Fishery 

The total number of affected purse 

seine vessels is approximated by the 

current number of U.S. purse seine 

vessels class size 4–6 authorized to fish 

in the IATTC Convention Area. As of 

July 2009, there were five U.S. purse 

seine vessels listed on the IATTC Vessel 

Register; two are class size 5 (273 to 363 

mt carrying capacity) and three are class 

size 6 (greater than 363 mt carrying 

capacity). Purse seine vessels class sizes 

5 and 6 usually fish outside U.S. waters 

and deliver their catch to U.S. (e.g., 

American Samoa) or foreign (e.g., 

Ecuador, Mexico, Colombia, Costa Rica) 

ports. Skipjack and yellowfin tuna are 

the primary target species in the purse 

seine fishery, and bigeye tuna is 

incidentally targeted. Class size 6 

vessels are required to have 100 percent 

observer coverage, while class size 5 

vessels are not required to carry an 

observer. Purse seine vessels class size 

5 would be considered small business 

entities (revenues equal to or less than 

$4 million per year). It is estimated that 

from 2004–2008, the majority, if not all, 

class size 5 U.S. purse seine vessels 

have had revenues of less than $0.5 

million per year. Class size 6 vessels are 

categorized as large business entities 

(revenues in excess of $4 million per 

year). A large purse seine vessel 

typically generates about 4,000 to 5,000 

mt of tuna valued at about $4 to $5 

million per year. 

It is estimated that purse seine sets 

would be prohibited for 16 percent of 

the year in 2009 (59 day closure/365 

days), 17 percent of the year in 2010 (61 

day closure/365 days), and 20 percent of 

the year in 2011 (73 day closure/365 

days), thus catches would be expected 

to be affected accordingly unless effort 

was shifted to areas outside of the 

Convention Area during the closure 

period, or to different times of the year 

when there is no closure. The affected 

vessels are capable of fishing outside of 

the closure area (i.e., in the WCPO) 

during the closure period and/or for the 

remainder of the year, since the fishery 

continues year round, and vessels tend 

to use relatively short closures (such as 

these) for regular vessel maintenance. 

Fishing in the WCPO may produce 

additional costs to some of the affected 

vessels that are based out of the U.S. 

West Coast and primarily fish in the 

EPO due to the increase in costs 

associated with fishing further away 

from port. In addition, if a vessel has 

already undergone the necessary 

maintenance and repairs for 2009, the 

closure could result in economic costs 

to the vessel owner. 

Other factors that have the potential 

to inhibit these vessels from fishing 

outside of the EPO include licensing 

availability and costs, and the recent 

implementation of effort limits for purse 

seine vessels fishing in the WCPO. It is 

assumed that fishing in the WCPO is the 

only practical geographic alternative for 

these vessels. Purse seine vessels fishing 

in the WCPO under the South Pacific 

Tuna Treaty (SPTT) are required to 

license their vessels; the maximum 

number of licensed vessels allowed in 

the U.S. purse seine fishery in the 

WCPO is 40 and currently there are 39 

licensed vessels. The vessel registration 

fee is about $3,250 per vessel. The three 

class size 6 purse seine vessels that are 

authorized to fish in the Convention 

Area are already registered under the 

SPTT. It may not be economically viable 

for the class size 5 purse seine vessels 

to register under the SPTT and fish in 

the WCPO because of their smaller 

carrying capacity and the increased 

costs associated with fishing far from 

port. At least one of the class size 5 

vessels would not be able to register to 

fish in the WCPO because only one 

license is available. 

In addition, a Final Rule published in 

the Federal Register on August 4, 2009, 

prohibits purse seine sets around FADs, 

deploy FADs, or service FADs in the 

WCPO from July 1 to September 30 in 

2010 and 2011, and fishing effort limits 

were 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 in the WCPO and in areas 

under U.S. jurisdiction (i.e., the U.S. 

EEZ) (74 FR 38544, August 4, 2009). 

However, according to an analysis of the 

impacts of the effort limits on the purse 

seine fishery in the WCPO, prepared by 

NMFS for the Final EA, the effort limit 

may not represent real change from the 

status quo as the effort limit is set at 

approximately the level expected to be 

exerted by 40 vessels. In addition, 

during the FAD prohibition period, 

purse seine vessels would still be 

permitted to make purse seine sets on 

unassociated schools of tuna, which 

generally results in a different catch 

composition. 

In summary, two small business 

entities, and three large business entities 

may be affected by the purse seine 

measures. Small entities would not be 

disproportionately affected relative to 

large entities because it is likely that 

these entities would be able to fish 

during the rest of the year when the 

fishery is not subject to a closure, and 

it may be possible for at least one of 

these vessels to obtain the necessary 

license to fish in the WCPO during the 

closure period. In addition, this part of 

the proposed rule is not likely to have 

a significant impact on a substantial 

number of small entities because only 

two vessels may be affected and it is 

estimated that their fishing effort will 

not change much from the status quo. 

NMFS compared the effects of the 

proposed rule and various alternatives 

to the proposed rule on small business 

entities. For the longline fishery, there 

was a no-action alternative and two 

action alternatives. One of the action 

alternatives would prohibit all longline 

fishing in the Convention Area once the 

limit is reached, rather than just 

prohibiting the retention, 

transshipment, and landing of bigeye 

tuna caught in the Convention Area. 

The other action alternative would 


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53460 Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / Proposed Rules 

prohibit deep-set longline fishing in the 

Convention Area once the limit is 

reached, allowing shallow-set longline 

fishing in the Convention Area to 

continue, provided that no bigeye tuna 

and no yellowfin tuna caught in the 

Convention Area are retained, 

transshipped, or landed. It is estimated 

that the bigeye quota would not be 

reached in any year based on a forecast 

conducted by the PIFSC, thus fishing 

effort would not be affected and the 

proposed action and the alternatives are 

not likely to have an economic impact 

on small business entities. However, in 

the unlikely event that the bigeye quota 

were reached, both of these alternatives 

would have greater economic impacts 

on small entities as they would place 

greater restrictions on the fishery 

compared to the proposed action. 

For the EPO purse seine closure, the 

members of the IATTC are given the 

discretion to choose between two 

options for when to implement the 

closure period in each year. Thus, there 

is one action alternative and one noaction alternative for each applicable 

year which differs from the proposed 

action in terms of when the closure is 

implemented. However, based on catch 

data from 2004–2009, small entities 

have historically made more tuna 

landings in the EPO during the 

alternative’s closure period (July 

through September) compared to the 

proposed closure period (November 

through January). Thus, this option 

would not minimize the economic 

impact on small entities and has the 

potential to increase it. There were no 

alternatives for the 30–day purse seine 

closure to the west of the Galapagos 

from 2009–2011 and for the tuna 

retention measure which would 

accomplish the stated objectives of 

Resolution C–09–01 and which would 

minimize any significant economic 

impact on the affected small entities. 

There are no reporting, recordkeeping 

or other compliance requirements 

required by this proposed rule. 

Additionally, no other Federal rules 

duplicate, overlap or conflict with this 

proposed rule. 

List of Subjects in 50 CFR Part 300 

Administrative practice and 

procedure, Fish, Fisheries, Fishing, 

Marine resources, Reporting and 

recordkeeping requirements, Treaties. 

Dated: October 13, 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, the heading 

for subpart C and subpart C are 

proposed to be amended as follows: 

PART 300—INTERNATIONAL 

FISHERIES REGULATIONS 

Subpart C—Eastern Pacific Tuna 

Fisheries 

1. The authority citation for 50 CFR 

part 300, subpart C, continues to read as 

follows: 

Authority: 16 U.S.C. 951–961 et seq. 

2. In § 300.21, the definition of 

‘‘Fishing trip’’ is revised and a 

definition of ‘‘Longline gear’’ is added, 

in alphabetical order, to read as follows: 

§ 300.21 Definitions. 

* * * * * 

Fishing trip means a period of time 

during which a fishing vessel is used for 

fishing, beginning when the vessel 

leaves port and ending when the vessel 

lands fish. 

* * * * * 

Longline gear means a type of fishing 

gear consisting of a main line that 

exceeds 1 nautical mile in length, is 

suspended horizontally in the water 

column anchored, floating, or attached 

to a vessel, and from which branch or 

dropper lines with hooks are attached. 

* * * * * 

3. In § 300.24, paragraph (e) is revised, 

and new paragraphs (k) through (n) are 

added to read as follows: 

§ 300.24 Prohibitions. 

* * * * * 

(e) Fail to retain any bigeye, skipjack, 

or yellowfin tuna caught by a fishing 

vessel of the United States of class size 

4–6 using purse seine gear in the 

Convention Area, except fish considered 

unfit for human consumption due to 

reasons other than size, and except on 

the last set of the trip if there is 

insufficient well capacity to 

accommodate the entire catch. 

* * * * * 

(k) Use a fishing vessel over 24 meters 

in length to retain on board, transship, 

or land bigeye tuna captured by longline 

gear in the Convention Area or to fish 

in contravention of § 300.25(b)(4)(i) or 

(ii). 

(l) Use a fishing vessel over 24 meters 

in length to fish in the Pacific Ocean 

using longline gear both inside and 

outside the Convention Area on the 

same fishing trip in contravention of 

§ 300.25(b)(4)(iii). 

(m) Fail to stow gear as required in 

§ 300.25(b)(4)(iv) or (f)(3). 

(n) Use a fishing vessel of class size 

4–6 to fish with purse seine gear in the 

Convention Area in contravention of 

§ 300.25(f)(1) or (2). 

4. In § 300.25, paragraphs (b) and 

(e)(1) are revised, and paragraph (f) is 

added to read as follows: 

§ 300.25 Eastern Pacific fisheries 

management. 

* * * * * 

(b) Tuna quotas in the longline fishery 

in the EPO. 

(1) Fishing seasons for all tuna species 

begin on January 1 and end either on 

December 31 or when NMFS closes the 

fishery for a specific species. 

(2) For each of the calendar years 

2009, 2010, and 2011, there is a limit of 

500 metric tons of bigeye tuna that may 

be captured and landed by longline gear 

in the Convention Area by fishing 

vessels of the United States that are over 

24 meters in length. 

(3) NMFS will monitor bigeye tuna 

landings with respect to the limit 

established under paragraph (b)(2) of 

this section using data submitted in 

logbooks and other available 

information. After NMFS determines 

that the limit in any year is expected to 

be reached by a specific future date, and 

at least 7 calendar days in advance of 

that date, NMFS will publish a notice in 

the Federal Register announcing that 

the limit has been reached and that the 

restrictions described in paragraphs 

(b)(4) of this section will be in effect 

through the end of the calendar year. 

(4) Once an announcement is made 

pursuant to paragraph (b)(3) of this 

section, the following restrictions will 

apply during the period specified in the 

announcement: 

(i) A fishing vessel of the United 

States over 24 meters in length may not 

be used to retain on board, transship, or 

land bigeye tuna captured by longline 

gear in the Convention Area, except as 

follows: 

(ii) Any bigeye tuna already on board 

a fishing vessel upon the effective date 

of the prohibitions may be retained on 

board, transshipped, and/or landed, to 

the extent authorized by applicable laws 

and regulations, provided that they are 

landed within 14 days after the 

prohibitions become effective. In the 

case of a vessel that has declared to 

NMFS, pursuant to § 665.23(a) of this 

title, that the current trip type is 

shallow-setting, the 14-day limit is 

waived, but the number of bigeye tuna 

retained on board, transshipped, or 

landed must not exceed the number on 

board the vessel upon the effective date 

of the prohibitions, as recorded by the 

NMFS observer on board the vessel. 

(iii) Bigeye tuna caught by longline 

gear used on a vessel of the United 

States over 24 meters in length in the 


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Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / Proposed Rules 53461 

Convention Area may not be 

transshipped to a fishing vessel unless 

that fishing vessel is operated in 

compliance with a valid permit issued 

under § 660.707 or § 665.21 of this title. 

(iv) A fishing vessel of the United 

States over 24 meters in length may not 

be used to fish in the Pacific Ocean 

using longline gear both inside and 

outside the Convention Area during the 

same fishing trip, with the exception of 

a fishing trip during which the 

prohibitions were put into effect as 

announced under paragraph (b)(3) of 

this section, in which case the 

provisions of paragraphs (b)(4)(ii) and 

(b)(4)(iii) of this section still apply. 

(v) If a fishing vessel of the United 

States over 24 meters in length is used 

to fish in the Pacific Ocean using 

longline gear outside the Convention 

Area and the vessel enters the 

Convention Area at any time during the 

same fishing trip, the longline gear on 

the fishing vessel must be stowed in a 

manner so as not to be readily available 

for fishing; specifically, the hooks, 

branch or dropper lines, and floats used 

to buoy the mainline must be stowed 

and not available for immediate use, 

and any power-operated mainline 

hauler on deck must be covered in such 

a manner that it is not readily available 

for use. 

* * * * * 

(e) Bycatch reduction measures. 

(1) Bigeye, skipjack, and yellowfin 

tuna caught by a fishing vessel of the 

United States of class size 4–6 (more 

than 182 metric tons carrying capacity) 

using purse seine gear must be retained 

on board and landed, except fish 

deemed unfit for human consumption 

for reasons other than size from 0000 

hours on January 1, 2010 to 2400 hours 

on December 31, 2011. This requirement 

shall not apply to the last set of a trip 

if the available well capacity is 

insufficient to accommodate the entire 

catch. 

* * * * * 

(f) Purse seine closures in the EPO. 

(1) A fishing vessel of the United 

States of class size 4–6 (more than 182 

metric tons carrying capacity) may not 

be used to fish with purse seine gear in 

the Convention Area from 0000 hours 

on November 21, 2009, to 2400 hours on 

January 18, 2010; from 0000 hours on 

November 18, 2010, to 2400 hours on 

January 18, 2011; and from 0000 hours 

on November 7, 2011, to 2400 hours on 

January 18, 2012, except that a vessel of 

class size 4 (182 to 272 metric tons 

carrying capacity) may make one fishing 

trip of up to 30 days duration during the 

specified closure period, provided that 

the vessel carries an observer of the OnBoard Observer Program of the 

Agreement on the International Dolphin 

Conservation Program during the entire 

fishing trip. 

(2) A fishing vessel of the United 

States of class size 4–6 (more than 182 

metric tons carrying capacity) may not 

be used from 0000 hours on September 

29 to 2400 hours on October 29 in the 

years 2009, 2010, or 2011 to fish with 

purse seine gear within the area 

bounded at the east and west by 96° and 

110° W. longitude and bounded at the 

north and south by 4° N. and 3° S. 

latitude. 

(3) At all times while a vessel is in a 

Closed Area established under 

paragraphs (f)(1) or (f)(2) of this section, 

the fishing gear of the vessel shall be 

stowed in a manner as not to be readily 

available for fishing. In particular, the 

boom shall be lowered as far as possible 

so that the vessel cannot be used for 

fishing, but so that the skiff is accessible 

for use in emergency situations; the 

helicopter, if any shall be tied down; 

and launches shall be secured. 

[FR Doc. E9–25064 Filed 10–16–09; 8:45 am] 

BILLING CODE 3510–22–S 


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