[Federal Register Volume 74, Number 200 (Monday, October 19, 2009)]
[Proposed Rules]
[Pages 53455-53461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25064]


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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.

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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:
    <bullet> Electronic submissions: Submit all electronic public 
comments via the Federal e-Rulemaking portal, at http://www.regulations.gov.
    <bullet> 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.
    <bullet> 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:

[[Page 53456]]

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/IATTC_convention_1949.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 Non-Parties, 
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[deg] and 
110[deg] W. longitude and between 4[deg] N. and 3[deg] 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

[[Page 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 shallow-
setting 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.

[[Page 53458]]

[GRAPHIC] [TIFF OMITTED] TP19OC09.032

    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.

[[Page 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 large-scale 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

[[Page 53460]]

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 no-action 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 Sec.  300.21, the definition of ``Fishing trip'' is revised 
and a definition of ``Longline gear'' is added, in alphabetical order, 
to read as follows:


Sec.  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 Sec.  300.24, paragraph (e) is revised, and new paragraphs 
(k) through (n) are added to read as follows:


Sec.  300.24  Prohibitions.

* * * * *
    (e) Fail to retain any bigeye, skipjack, or yellowfin tuna caught 
by a fishing vessel of the United States of class size 4-6 using purse 
seine gear in the Convention Area, 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 Sec.  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 Sec.  
300.25(b)(4)(iii).
    (m) Fail to stow gear as required in Sec.  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 Sec.  300.25(f)(1) or 
(2).
    4. In Sec.  300.25, paragraphs (b) and (e)(1) are revised, and 
paragraph (f) is added to read as follows:


Sec.  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 Sec.  665.23(a) of this title, that 
the current trip type is shallow-setting, the 14-day limit is waived, 
but the number of bigeye tuna retained on board, transshipped, or 
landed must not exceed the number on board the vessel upon the 
effective date of the prohibitions, as recorded by the NMFS observer on 
board the vessel.
    (iii) Bigeye tuna caught by longline gear used on a vessel of the 
United States over 24 meters in length in the

[[Page 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 Sec.  660.707 or Sec.  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 On-
Board 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[deg] and 110[deg] W. longitude and bounded at the north 
and south by 4[deg] N. and 3[deg] 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