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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 300
          - [Docket No. 050719189-5231-02; I.D. 081105E]
          - RIN 0648-AT33

# AGENCY:

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

# ACTION:

Temporary rule; emergency action.

# SUMMARY:

This emergency action, implemented under the regulations for the Pacific Tuna Fisheries, will prevent overfishing of bigeye tuna in the eastern tropical Pacific Ocean (ETP), 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.  NMFS hereby closes the U.S. longline fishery directed at bigeye tuna in the Convention Area for the remainder of 2005 because the bigeye tuna catch in the Convention Area has reached the reported level of catch made in 2001.  This action is intended to limit fishing mortality on bigeye tuna stock caused by longline fishing in the Convention Area and contribute to the long-term conservation of bigeye tuna stock at levels that support healthy fisheries.

# DATES:

Effective August 30, 2005 through December 31, 2005.

# ADDRESSES:

Southwest Regional Administrator, Southwest Region, NMFS, 501 W. Ocean Blvd., Suite 4200, 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                     **Federal Register**                     document is also accessible via the Internet at the Office of the                     **Federal Register**                    's website at                     *http://www.gpoaccess.gov/​*.                

                    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.  The Convention Area for this purpose is defined to include the waters of the ETP 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 tuna stocks and promote viable fisheries.  Under the Tuna Conventions Act, 16 U.S.C. 951-961 and 972*et seq.*, NMFS must publish regulations to carry out IATTC recommendations and resolutions that have been approved by DOS.  The Southwest Regional Administrator also is also required by regulations at 50 CFR 300.299(b)(3) to issue a direct notice to the owners or agents of U.S. vessels that operate in the ETP of actions recommended by the IATTC and approved by the DOS.  A notice to the fleet was sent May 31, 2005, advising the U.S. bigeye tuna longline fleet of anticipated actions for the 2005 fishing year.                

                    The IATTC recommended, and the DOS approved, a measure whereby the U.S. longline fishery for bigeye tuna in the Convention Area wouldill close for the remainder of calendar year 2005 if the catch of bigeye tuna by U.S. longline                           ( print page 52325)                        vessels in the Convention Area reaches 150 mt (the amount estimated to have been caught by the U.S. longline fishery in the Convention Area in 2001).  The measure recommended by the IATTC and approved by DOS states that, no bigeye tuna may be caught and retained by U.S. longline bigeye tuna vessels in the Convention Area during the remainder of the calendar year 2005 once the fishery is closed upon reaching the 2001 catch level.  NMFS promulgated a proposed rule to effect this recommendation on August 15, 2005 (70 FR 47774-47776).                

NMFS has determined that the 150 mt catch level has been reached for the 2005 season and hereby closes the U.S. longline fishery for bigeye tuna in the Convention Area for the remainder of the year 2005.  It is therefore prohibited for a U.S. longline bigeye tuna vessel to retain bigeye tuna in the Convention Area from the effective date of this action through December 31, 2005.  Longline vessels are not subject to this rule if they declare to NMFS under the Western Pacific Pelagics FMP that they intend to shallow-set to target swordfish.

## Classification

                    This action is consistent with the Tuna Conventions Act 16, U.S.C. 951-961 and 971                     *et seq.*                     This action is consistent under the regulations for the Pacific Tuna Fisheries found at 50 CFR 300.29.                

For the reasons set forth below, the Assistant Administrator for Fisheries (AA) finds good cause under 5 U.S.C. 553(b)(B) to waive notice and comment for this rule, which closes the U.S. bigeye tuna longline fishery in the IATTC Convention Area for the remainder of the 2005 season.  Similarly, the AA finds good cause to waive the 30-day delay in effective date for this rule under 5 U.S.C. 553(d)(3).

It is impracticable and contrary to the public interest to provide for notice and an opportunity for public comment because the U.S. quota for bigeye tuna in the ETP longline fishery has already been reached, much earlier this year than in the preceding year.  In 2004, U.S. vessels using longline gear in the ETP did not attain the 2001 catch limit until September.  This year, however, in July of 2005, U.S. longline vessels in the ETP were estimated to have harvested over 150 metric tons of bigeye tuna.  The estimated catch to date is approximately 241 metric tons, significantly over-quota.  Accommodating notice and comment and delaying the effective date for this rule would result in continued harvest of bigeye tuna by the longline fleet over the 2001 catch level.

                    Failure to effectuate the closure immediately, when estimates indicate that the fishery is already significantly over-quota, could also cause potentially serious harm to the ETP bigeye tuna stock.  In 2003, 2004, and 2005, IATTC stock assessment scientists concluded that the bigeye tuna stock is at a level below that which would produce the average maximum sustainable yield.  Furthermore, NMFS has determined that bigeye tuna in the Pacific are subject to overfishing, using the standards for “overfishing” in the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801*et seq.*

                    Furthermore, the rule must be made effective immediately to meet U.S. obligations under the Convention between the United States of America and the Republic of Costa Rica for the Establishment of an Inter-American Tropical Tuna Commission, as well as U.S. obligations to manage tuna stocks in a sustainable manner under the Tuna Conventions Act of 1950, 16 U.S.C. 951-961 and 971*et seq.*                     Therefore, notice and an opportunity for comment, and delayed effectiveness of the closure, are not practicable and are contrary to the public interest.                

This emergency rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment.

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

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

Dated:  August 30, 2005.

John Oliver,

Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

[FR Doc. 05-17550 Filed 8-30-05; 2:40 pm]

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