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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 300
          - [Docket No. 070215036-7036-01; I.D. 012307A]
          - RIN 0648-AU79

# AGENCY:

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

# ACTION:

Proposed rule; request for comments.

# SUMMARY:

NMFS proposes management measures to reduce overfishing of the eastern tropical Pacific Ocean (ETP) tuna stocks in 2007, consistent with recommendations by the Inter-American Tropical Tuna Commission (IATTC) that have been approved by the Department of State (DOS) under the Tuna Conventions Act. The purse seine fishery for tuna in the Convention Area would be closed for a 6-week period either beginning August 1, 2007, through September 11, 2007, or November 20, 2007, through December 31, 2007. This proposed rule would also close the U.S. longline fishery in the Convention Area in 2007 once the catch of bigeye tuna harvested with longline gear in the Convention Area reaches 500 metric tons (mt). This action is taken to limit fishing mortality caused by purse seine fishing and longline fishing in the Convention Area and contribute to long-term conservation of the tuna stocks at levels that support healthy fisheries.

# DATES:

Comments must be received by March 28, 2007.

# ADDRESSES:

                        Comments on the proposed rule or the initial regulatory flexibility analysis (IRFA) should be sent to Rodney R. McInnis, Regional Administrator, Southwest Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802 or by email to the Southwest Region at                         *0648-AU79@noaa.gov*. Comments may also be submitted by email through the Federal e-Rulemaking portal:                         *http://www.regulations.gov*. Include in the subject line of the e-mail comment the following document identifier: 0648-AU79. Comments also may be submitted by fax to (562) 980-4047. Copies of the initial regulatory impact review/IRFA may be obtained from the Southwest Regional Administrator, Southwest Region, NMFS, 501 W. Ocean Blvd., Long Beach, CA 90902-4213.                    

# FOR FURTHER INFORMATION CONTACT:

J. Allison Routt, Sustainable Fisheries Division, Southwest Region, NMFS, (562) 980-4030.

# SUPPLEMENTARY INFORMATION:

## Electronic Access

                    This proposed rule is also accessible via the Internet at the Office of the                     **Federal Register**                    's website at                     *http://www.gpoaccess.gov/​fr/​index.html*.                

The United States is a member of the IATTC, which was established under the Convention for the Establishment of an Inter-American Tropical Tuna Commission signed in 1949 (Convention). The IATTC was established to provide an international arrangement to ensure the effective international conservation and management of highly migratory species of fish in the Convention Area. For the purposes of this closure, the Convention Area is defined to include the waters bounded by the coast of the Americas, the 40° N. and 40° S. parallels, and the 150° W. meridian. The IATTC has maintained a scientific research and fishery monitoring program for many years and annually assesses the status of stocks of tuna and the fisheries to determine appropriate harvest limits or other measures to prevent overexploitation of the stocks and promote viable fisheries.

                    Under the Tuna Conventions Act, 16 U.S.C. 951-961 and 971*et seq.*, NMFS must publish proposed rules to carry out IATTC recommendations that have been approved by DOS. The Southwest Regional Administrator also is required by 50 CFR 300.25(b)(3) to issue a direct notice to the owners or agents of all U.S. purse seine vessels that operate in the ETP of fishery management actions applicable to them that have been recommended by the IATTC and approved by the DOS.                

                    In June 2006, the IATTC adopted a                     *Resolution for a Program on the Conservation of Tuna in the Eastern Pacific Ocean for 2007*. The June 2006 resolution is a 1-year program on the conservation of tuna in the eastern Pacific Ocean for 2007. This resolution offers a choice for closing the purse seine fishery: either a 6-week closure beginning August 1, 2007, or a 6-week closure beginning November 20, 2007. The resolution of June 2006 incorporated flexibility for nations to administer the purse seine closure in accordance with national legislation and national sovereignty. The selected measure should reduce overfishing in a manner that is fair, equitable, and readily enforceable. NMFS will select one of the two closure periods after consideration of public comment.                

The June 2006 resolution also calls upon each Party and cooperating non-Party to ensure that each nation's longline catch of bigeye tuna in the ETP during 2007 will not exceed the catch level of 2001 or 500 mt, whichever is higher. The U.S. catch level of longline caught bigeye tuna for 2001 was estimated to be 150 mt in the Convention Area. Therefore, under this rule, the U.S. quota for longline caught bigeye in the Convention Area would be 500 mt for 2007.

In 2006, the U.S. catch level of longline-caught bigeye tuna in the Convention Area of 150 mt was reached. On July 6, 2006, NMFS closed the U.S. longline fishery for bigeye tuna in the Convention Area for the remainder of 2006.

The IATTC adopted the June 2006 resolution after considering a variety of measures, including the use of quotas and closures (as in 1999 through 2002), a full-month purse seine closure (used in 2003), and a 6-week purse seine closure as used in 2004, 2005, and 2006.

                    The proposed 2007 time/area closure is based on 2005 assessments of the condition of the tuna stocks in the ETP and historic catch and effort data for different portions of the ETP, as well as records relating to implementation of quotas and closures in prior years. The closure targets the Convention Area and is believed to be sufficient to reduce the risk of overfishing of the tuna stocks, especially when considered in combination with the 6-week closures implemented in 2004, 2005, and 2006. The combined multi-annual, multilateral restrictions should increase the protections from overfishing of the tuna stocks in the Convention Area. In an international fishery the best                           ( print page 8334)                        approach is through multilateral conservation and management measures. The IATTC met in June 2006 and reviewed tuna stock assessments and fishery information and considered that new information in evaluating the need for management measures for 2007 and future years. The DOS has approved the June 2006 resolution covering the year 2007, including the management measures described above.                

On October 30, 2006, the Regional Administrator, Southwest Region, sent a notice to owners and agents of U.S. fishing vessels of the June 2006 resolution adopted by the IATTC and approved by the DOS.

## Classification

This action is proposed under the regulations for the Pacific Tuna Fisheries at 50 CFR 300.25.

                    On December 8, 1999, NMFS prepared a biological opinion (BO) under the Endangered Species Act (ESA), 16 U.S.C. 1531*et seq.*, assessing the impacts of the fisheries as they would operate under the interim final rule (65 FR 47, January 3, 2000) implementing the International Dolphin Conservation Program Act (IDCPA). For the final rule (69 FR 176, September 13, 2004) to implement the IDCPA, NMFS amended the incidental take statement included in the December 8, 1999, BO. NMFS concluded that the fishing activities conducted under those regulations are not likely to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS or result in the destruction or adverse modification of critical habitat. This proposed rule will not result in any changes in the fisheries such that there would be impacts beyond those considered in that BO. The IATTC has also taken action to reduce sea turtle injury and mortality from interactions in the purse seine fishery so impacts of the fisheries should be lower than in the past. Because this closure does not alter the scope of the fishery management regime analyzed in the IDCPA rule, or the scope of the impacts considered in that consultation, NMFS is relying on that analysis to conclude that the purse seine fishery managed under this proposed rule will not likely adversely effect any endangered or threatened species under the jurisdiction of NMFS or result in the destruction or adverse modification of critical habitat. On October 4, 2005, NMFS concluded that the Hawaii-based pelagic, deep-set, tuna longline fishery managed under the Fishery Management Plan for the Pelagic Fisheries of the Western Pacific Region is not likely to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS or result in the destruction or adverse modification of critical habitat. This proposed rule will not result in any changes in the longline fishery such that there would be impacts beyond those considered in that BO.                

The U.S. ETP tuna purse seine fisheries occasionally interact with a variety of species of dolphin, and dolphin takes are authorized and managed under the IDCPA. The conservation management measures in this proposed rule do not affect the administration of that program, which is consistent with section 303(a)(2) of the Marine Mammal Protection Act, 16 U.S.C. 1413 (a)(2).

NMFS prepared an EA for the final rule (70 FR 69, April 12, 2005) to implement resolutions adopted by the IATTC and by the Parties to the Agreement on the International Dolphin Conservation Program. The Assistant Administrator for Fisheries concluded that there would be no significant impact on the human environment as a result of that final rule. The impacts of the fisheries as they will operate under the closures in 2007 are within the range of impacts of the alternatives considered in that EA, and are not expected to pose different impacts to the human environment. Therefore, this action does not require further analysis under NEPA.

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

                    An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA prepared describes the economic impact that this proposed rule, if adopted, would have on small entities. A copy of the IRFA for this proposed rule is available for public comment (see                     **ADDRESSES**                    ). A summary of the analysis follows.                

A description of the reasons for, objectives of, and legal basis for this proposed rule is included in the preamble and not repeated here.

This action would prohibit the use of purse seine gear to harvest tuna in the Convention Area for a 6- week period beginning August 1, 2007, through September 11, 2007, or beginning November 20, 2007, through December 31, 2007, and limit the annual 2007 U.S. catch of bigeye tuna caught by longline in the ETP to 500 mt.

The proposed purse seine closure would apply to the U.S. tuna purse seine fleet, which consists of five to ten small vessels (carrying capacity below 400 short tons (363 mt)) and one to two large vessels (carrying capacity 400 short tons (363 mt) or greater). The large vessels usually fish outside U.S. waters and deliver their catch to foreign ports or transship to processors outside the mainland United States. The large vessels are categorized as large business entities (revenues in excess of $4 million per year). A large purse seine vessel typically generates 4,000 to 5,000 mt of tuna valued at between $4 and $5 million per year. The closure should not significantly affect the operations of the one to two large vessels because they are capable of fishing in other areas that would remain open. Also, the one to two large purse seine vessels do conduct fishing operation in other areas. The small vessels are categorized as small business entities (revenues below $4 million per year). They fish out of California in the U.S. exclusive economic zone (EEZ) most of the year for small pelagic fish (Pacific sardine, Pacific mackerel) and for market squid in summer. Some small vessels harvest tuna seasonally when they are available. The proposed time/area closure will have no effect on small vessels because they do not have the endurance and markets to fish that far south for tunas on a regular basis.

For 2006, the United States chose to close the purse seine fishery beginning November 20, 2006, for the remainder of 2006. In 2006 the U.S. catch level of longline caught bigeye tuna in the Convention Area of 150 mt was reached. On July 6, 2006, NMFS closed the U.S. longline fishery for bigeye tuna in the Convention Area for the remainder of 2006.

                    The existing California based longline fishery, currently consisting of one vessel, does catch bigeye tuna. The portion of the fleet operating out of Hawaii has generally operated outside the boundaries of the Convention Area, and has not made significant catches in those waters. In 2004, 2005, and 2006, the California and Hawaii based longline fishery was limited to 150 metric tons of bigeye tuna in the Convention Area. A closure for the California based longline fleet will significantly affect their operations. However, the California based longline fleet is capable of fishing for other species of fish in the Convention Area which should mitigate the effects of the closure. In 2004, 2005, and 2006, the California based longline fleet landed swordfish and showed fishery management that they were capable of fishing for other species of fish in the Convention Area. With the reopening of the swordfish fishery for the Hawaii fleet, effort directed at bigeye tuna (which has mainly occurred west of the Convention Area) should remain at the                           ( print page 8335)                        same level. A closure should not significantly affect their operations as they are capable of fishing in other areas that would remain open, outside the boundaries of the Convention Area. In 2005, 500 mt of bigeye tuna were caught by the U.S. longline fishery in the Convention Area. In 2007, if the U.S. longline fishery reaches the 500 metric ton limit, this fishery is capable of fishing in other areas that would remain open.                

NMFS is not aware of any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule. This rule does not impose reporting or recordkeeping requirements, and the compliance requirements for the closure areas are as described at the outset of this summary.

NMFS considered three alternatives for this proposed rule: The 2006 IATTC Tuna Conservation Resolution allows nations to opt for a 6-week summer closure of the purse seine fishery from August 1 through September 20 of 2007 or a closure from November 20 through December 31, 2007. The August 1 September 20 closure alternative may have a greater economic impact on small entities than the November 20 December 31 closure. In particular, the U.S. purse seine fleet may prefer a closure later in the fishing year because the winter weather is not conducive to fishing. Also, throughout the history of this fishery shipyards have been prepared to accept vessels for scheduled repairs during the winter months. The fishery closure later in the year allows the industry to plan for and mitigate economic impacts of a closure while still providing the conservation benefits to the tuna resources in the ETP.

NMFS also considered the alternative of not implementing the 2006 IATTC Tuna Conservation Resolution. This alternative would have imposed no economic costs on small entities. However, failure to implement measures that have been agreed on pursuant to the Convention would violate the United States' obligations under the Convention, and would violate the Tuna Conventions Act.

Authority:16 U.S.C. 951-961 and 971*et seq.*

Dated: February 21, 2007.

Samuel D. Rauch III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

[FR Doc. E7-3251 Filed 2-23-07; 8:45 am]

BILLING CODE 3510-22-S