26160 Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Proposed Rules 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 300 

[Docket No. 090130104–9910–01] 

RIN 0648–AX60 

International Fisheries; Western and 

Central Pacific Fisheries for Highly 

Migratory Species; Fishing 

Restrictions and Observer 

Requirements in Purse Seine Fisheries 

for 2009–2011 and Turtle Mitigation 

Requirements in Purse Seine Fisheries 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes regulations 

under authority of the Western and 

Central Pacific Fisheries Convention 

Implementation Act (Act) to implement 

certain decisions of the Commission for 

the Conservation and Management of 

Highly Migratory Fish Stocks in the 

Western and Central Pacific Ocean 

(WCPFC). Those decisions require that 

the members of the WCPFC, including 

the United States, take certain measures 

with respect to their purse seine 

fisheries in the area of competence of 

the WCPFC, which includes most of the 

western and central Pacific Ocean 

(WCPO). This action is necessary for the 

United States to satisfy its international 

obligations under the Convention on the 

Conservation and Management of 

Highly Migratory Fish Stocks in the 

Western and Central Pacific Ocean 

(Convention), to which it is a 

Contracting Party. 

DATES: Comments must be submitted in 

writing by June 22, 2009. 

ADDRESSES: You may submit comments, 

on this proposed rule, identified by 

0648–AX60, and the regulatory impact 

review (RIR) 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: William L. Robinson, 

Regional Administrator, NMFS Pacific 

Islands Regional Office (PIRO), 1601 

Kapiolani Blvd., Suite 1110, Honolulu, 

HI 96814. Include the identifier ‘‘0648– 

AX60’’ in the comments. 

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. 

An initial regulatory flexibility 

analysis (IRFA) prepared under 

authority of the Regulatory Flexibility 

Act (RFA) is included in the 

Classification section of the 

SUPPLEMENTARY INFORMATION section of 

this proposed rule. 

Copies of the RIR and copies of the 

environmental assessment (EA) 

prepared under authority of the 

National Environmental Policy Act are 

available at http://www.fpir.noaa.gov/ 

IFD/ifd_documents_data.html or may be 

obtained from William L. Robinson, 

Regional Administrator, NMFS PIRO 

(see ADDRESSES). 

FOR FURTHER INFORMATION CONTACT: Tom 

Graham, NMFS PIRO, 808–944–2219. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

This proposed rule is also accessible 

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

Background on the Convention and the 

WCPFC 

The Convention entered into force in 

June 2004. The full text of the 

Convention can be obtained from the 

WCPFC website at: http:// 

www.wcpfc.int/convention.htm. The 

Convention Area comprises the majority 

of the western and central Pacific Ocean 

(WCPO). In the North Pacific Ocean the 

eastern boundary of the Convention 

Area is at 150 W. longitude. A map 

showing the boundaries of the 

Convention Area can be found on the 

WCPFC website at: http:// 

www.wcpfc.int/pdf/Map.pdf. The 

Convention focuses on the conservation 

and management of highly migratory 

species (HMS) and the management of 

fisheries for HMS, and also has 

provisions related to non-target, 

associated, and dependent species in 

such fisheries. 

The WCPFC, established under the 

Convention, is comprised of the 

Members, including 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 

WCPFC include Participating Territories 

and Cooperating Non-Members. 

Participating Territories participate with 

the authorization of the Contracting 

Parties with responsibility for the 

conduct of their foreign affairs. 

Cooperating Non-Members are 

identified by the WCPFC on a yearly 

basis. In accepting Cooperating NonMember status, such States agree to 

implement the decisions of the WCPFC 

in the same manner as Members. 

The current Members of the WCPFC 

are Australia, Canada, China, Chinese 

Taipei (Taiwan), Cook Islands, 

European Community, Federated States 

of Micronesia, Fiji, France, Japan, 

Kiribati, Korea, Marshall Islands, Nauru, 

New Zealand, Niue, Palau, Papua New 

Guinea, Philippines, Samoa, Solomon 

Islands, Tonga, Tuvalu, United States, 

and Vanuatu. The current Participating 

Territories are French Polynesia, New 

Caledonia and Wallis and Futuna 

(affiliated with France); Tokelau 

(affiliated with New Zealand); and the 

Territory of American Samoa, the 

Commonwealth of the Northern Mariana 

Islands and the Territory of Guam 

(affiliated with the United States of 

America). The Cooperating NonMembers for 2009 are Belize, El 

Salvador, Indonesia, Mexico, and 

Senegal. 

International Obligations of the United 

States Under the Convention 

The United States ratified the 

Convention and, in doing so, became a 

Contracting Party to the Convention and 

a Member of the WCPFC in 2007. From 

2004 until that time, the United States 

participated in the WCPFC as a 

Cooperating Non-Member. As a 

Contracting Party to the Convention and 

a Member of the WCPFC, the United 

States is obligated to implement the 

decisions of the WCPFC in a legally 

binding manner. The Act, enacted in 

2007, 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 WCPFC. The authority 

to promulgate regulations has been 

delegated to NMFS. 

WCPFC Decisions Regarding Bigeye 

Tuna, Yellowfin Tuna, and Sea Turtles 

in Purse Seine Fisheries 

At its Fifth Regular Session, in 

December 2008, the WCPFC adopted 

Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Proposed Rules 26161 

Conservation and Management Measure 

(CMM) 2008–01, ‘‘Conservation and 

Management Measure for Bigeye and 

Yellowfin Tuna in the Western and 

Central Pacific Ocean.’’ The CMM, 

available with other decisions of the 

WCPFC at http://www.wcpfc.int/ 

decisions.htm, places certain obligations 

on the WCPFC Members, Participating 

Territories, and Cooperating Nonmembers (collectively, CCMs). The 

CMM is based in part on the findings by 

the WCPFC that the stock of bigeye tuna 

(Thunnus obesus) in the WCPO is 

experiencing a fishing mortality rate 

greater than the rate associated with 

maximum sustainable yield and that the 

stock of yellowfin tuna (Thunnus 

albacares) in the WCPO is experiencing 

a fishing mortality rate close to the rate 

associated with maximum sustainable 

yield. The Convention calls for the 

WCPFC 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, the objectives of 

CMM 2008–01 include achieving, over 

the 2009–2011 period, a reduction in 

fishing mortality on bigeye tuna in the 

WCPO of at least 30 percent and no 

increase in fishing mortality on 

yellowfin tuna in the WCPO, relative to 

a specified historical baseline. 

CMM 2008–01 includes provisions 

that: (1) for 2009–2011, establish purse 

seine fishing effort limits on the high 

seas in the Convention Area and require 

CCMs to implement compatible 

measures in their respective areas of 

national jurisdiction; (2) in the period 

2009–2011, prohibit deploying and 

servicing fish aggregating devices 

(FADs) or associated electronic devices, 

and prohibit purse seine fishing on 

schools in association with FADs on the 

high seas in the Convention Area during 

specified periods each year (August 1 

through September 30 in 2009 and July 

1 through September 30 in 2010 and 

2011; hereafter, ‘‘FAD prohibition 

periods’’) and require CCMs to 

implement compatible measures in their 

respective areas of jurisdiction; (3) in 

2010 and 2011, close two specific high 

seas areas within the Convention Area 

to purse seine fishing, unless the 

WCPFC decides otherwise at its regular 

annual session in December 2009; (4) in 

2010 and 2011, require that all bigeye 

tuna, yellowfin tuna, and skipjack tuna 

be retained on board purse seine vessels 

in the Convention Area up to the point 

of first landing or transshipment, with 

certain exceptions and contingent on 

the WCPFC Regional Observer 

Programme (WCPFC ROP) being able to 

provide 100 percent observer coverage; 

and (5) in 2009, require that WCPFC 

ROP or national observers be on board 

all purse seine vessels fishing in the 

Convention Area during the FAD 

prohibition period, and in 2010 and 

2011, require that WCPFC ROP 

observers be on board all purse seine 

vessels fishing in the Convention Area. 

The WCPFC also adopted CMM 2008– 

03, ‘‘Conservation and Management of 

Sea Turtles.’’ The CMM prescribes 

specific measures to be used to handle, 

resuscitate, and release sea turtles 

captured in HMS fisheries, and for 

purse seine vessels, requires that certain 

procedures be used to deal with sea 

turtles encircled and entangled in purse 

seines or FADs, including carrying and 

using dip nets. 

Proposed Action 

The proposed rule would include the 

following elements: 

(1) Fishing Effort Limits 

The proposed rule would establish a 

limit, from 2009 through 2011, on the 

number of fishing days per year that 

may be spent by the U.S. purse seine 

fleet on the high seas and in areas under 

U.S. jurisdiction (including the U.S. 

exclusive economic zone, or EEZ) 

within the Convention Area. Paragraph 

10 of CMM 2008–01 gives the United 

States the choice of using the 2004 level 

or the average 2001–2004 level as the 

baseline for the limits on the high seas. 

Paragraphs 12 and 18 of CMM 2008–01 

require the United States to take 

measures to reduce purse seine fishing 

mortality on bigeye tuna in the U.S. 

EEZ, in a way that is compatible with 

certain measures that the Parties to the 

Nauru Agreement (PNA) are to 

implement within their respective areas 

of national jurisdiction (as prescribed in 

Paragraphs 11 and 17 of the CMM). The 

pertinent measures to be implemented 

by the PNA are described in the 

following paragraph. 

The PNA have established, and under 

CMM 2008–01 are required to 

implement, the Vessel Day Scheme 

(VDS), which limits the number of days 

fished by purse seine vessels in the 

EEZs of the PNA to no greater than 2004 

levels and provides for the allocation of 

the limit among the PNA. The VDS 

defines a fishing day as any calendar 

day, or part of calendar day, during 

which a purse seine vessel is outside of 

a port, except when the vessel is not 

undertaking fishing activities (i.e., when 

all fishing gear is stowed). For the 

purpose of this proposed rule, ‘‘fishing 

day’’ would be defined in similar 

manner. The PNA VDS specifies rolling 

three-year management periods. The 

rolling three-year management periods 

function by having the limit on the 

number of fishing days set for each of 

the years in the initial three-year 

management period. In theory, before 

the end of the first year, the fishing limit 

is then to be set for the fourth year, and 

before the end of the second year, the 

fishing limit is set for the fifth year, and 

so on, so that the maximum allowable 

fishing days are always established for 

three years in advance. Transfer of a 

certain number of fishing days between 

management years by individual PNA is 

allowed (up to 100 percent of the days 

from another year in the same three-year 

management period; up to 30 percent of 

the days from the final year of the 

preceding management period). 

Allocated fishing days may also be 

transferred, within specified limits, 

among PNA. 

Paragraph 7 of CMM 2008–01 

provides that determinations of effort 

levels for the purpose of implementing 

the CMM shall include fishing rights 

under existing regional fisheries 

arrangements or agreements that were 

registered with the WCPFC by December 

2006 in accordance with CMM 2005–01, 

‘‘Conservation and Management 

Measure for Bigeye and Yellowfin Tuna 

in the Western and Central Pacific 

Ocean,’’ provided that the number of 

licenses authorized under such 

arrangements does not increase. The 

South Pacific Tuna Treaty (SPTT) is 

such an agreement, and the United 

States has registered the SPTT with the 

WCPFC in accordance with CMM 2005– 

01. The number of licenses allowed for 

the U.S. purse seine fleet under the 

SPTT is 45, five of which are reserved 

for vessels engaged in joint ventures 

with Pacific Island Parties to the SPTT, 

and these numbers have not increased. 

The licensing requirements of the SPTT 

do not apply to the U.S. EEZ, but the 

area of application of the SPTT does 

include portions of the U.S. EEZ. Since 

the inception of the SPTT, all U.S. purse 

seine vessels that have been used to fish 

in the U.S. EEZ in the WCPO have been 

licensed under the SPTT. In other 

words, the set of vessels used to fish in 

the U.S. EEZ in the WCPO has been 

identical to the set of vessels used to 

fish on the high seas and in foreign 

EEZs in the WCPO under the terms of 

the SPTT, and consequently, all such 

vessels have been effectively managed 

as part of the SPTT-governed U.S. purse 

seine fleet. For these reasons, the 

number of non-joint venture licenses 

authorized under the SPTT, 40, is used 

as the basis for the proposed fishing 

effort limits for both the high seas and 

26162 Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Proposed Rules 

the U.S. EEZ within the Convention 

Area. 

This baseline of 40 vessels is used to 

derive the proposed fishing effort limits, 

expressed in terms of fishing days, by 

determining the average number of 

fishing days spent per vessel in the 

appropriate baseline period, and 

multiplying that number by 40 vessels. 

The numbers of days fished during the 

baseline periods were determined from 

the best available historical operational 

data from the U.S. purse seine fleet, as 

reported on regional purse seine 

logsheets. For both the high seas and the 

U.S. EEZ within the Convention Area, 

average fishing effort per vessel was 

greater in 2004 than during 2001–2004, 

so the 2004 levels are used for both 

areas. For the high seas in the 

Convention Area, the estimated average 

number of fishing days spent per vessel 

during 2004 (when 21 vessels were 

active in that area) was 50.76. For the 

U.S. EEZ in the Convention Area, the 

estimated average number of fishing 

days spent per vessel during 2004 

(when 20 vessels were active in that 

area) was 13.95. Therefore, the proposed 

limit would be 2,030 fishing days per 

year (but not necessarily applied on an 

annual basis) for the high seas and 558 

fishing days per year for the U.S. EEZ, 

or a total of 2,588 fishing days per year. 

If any vessels enter the fishery with any 

of the five licenses reserved for vessels 

engaged in joint ventures with the 

Pacific Island Parties to the SPTT, the 

limit may be adjusted accordingly. 

To accommodate the need for 

operational flexibility in the event of 

inter-annual variability in the spatial 

and temporal distribution of optimal 

fishing grounds and times, the proposed 

rule would implement the fishing effort 

limit on three different time scales: 

First, there would be a limit of 7,764 

fishing days (3 times the base of 2,588 

fishing days) for the entire three-year 

2009–2011 period. Second, there would 

be a limit of 6,470 fishing days (2.5 

times the base of 2,588 fishing days) for 

each of the two-year periods 2009–2010 

and 2010–2011. Third, there would be 

a limit of 3,882 fishing days (1.5 times 

the base of 2,588 fishing days) for each 

of the one-year periods 2009, 2010, and 

2011. This approach would allow 

greater fishing effort in any given year 

than would be allowed under a strict 

annual limit, yet ensure that total 

fishing effort over the three-year period 

does not exceed the WCPFC-mandated 

limit for that period. 

Once NMFS determines during any of 

those time periods that, based on 

information collected in vessel logbooks 

and other sources, the limit is expected 

to be reached by a specific future date, 

NMFS would issue a notice announcing 

the closure of the purse seine fishery in 

the Convention Area on the high seas 

and in areas of U.S. jurisdiction starting 

on that specific future date and will 

remain closed until the end of the 

applicable time period. Upon closure of 

the fishery, it would be prohibited to 

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

the Convention Area on the high seas or 

in areas under U.S. jurisdiction through 

the end of the applicable time period. 

NMFS would publish the notice at least 

seven calendar days before the effective 

date of the closure to provide fishermen 

advance notice of the closure. 

(2) FAD Prohibition Periods 

The proposed rule would establish 

periods in each of the years 2009, 2010, 

and 2011 during which it would be 

prohibited to set purse seines around 

FADs, deploy FADs, and service FADs 

or their associated electronic equipment 

in the convention area. Also, to 

implement the provision in CMM 2008– 

01 to prohibit fishing ‘‘on schools in 

association with FADs’’, it would be 

prohibited during these periods to set a 

purse seine within one nautical mile of 

a FAD or to set a purse seine in a 

manner intended to capture fish that 

have aggregated in association with a 

FAD, such as by setting the purse seine 

in an area from which a FAD has been 

moved or removed within the previous 

eight hours or setting the purse seine in 

an area into which fish were drawn by 

a vessel from the vicinity of a FAD. 

FADs would be defined to include both 

artificial and natural floating objects 

that are capable of aggregating fish. In 

2009, the FAD prohibition period would 

be August 1 through September 30. In 

2010 and 2011, it would be July 1 

through September 30. 

(3) High Seas Area Closures 

The proposed rule would establish 

two areas closed to fishing by U.S. purse 

seine vessels, effective January 1, 2010 

through December 31, 2011. The areas 

would be the two areas of high seas 

within the Convention Area that are 

depicted on the map in Figure 1. In 

CMM 2008–01, the WCPFC has reserved 

the option of reversing its adoption of 

the closed areas at its regular annual 

session in December 2009. If such a 

decision occurs, NMFS will take 

appropriate action to rescind any closed 

areas that are established by regulation. 

Figure 1. Proposed high seas closed 

areas. Areas of high seas are indicated 

in white; areas of claimed national 

jurisdiction, including territorial seas, 

archipelagic waters, and exclusive 

economic zones, are indicated in dark 

shading. Areas that would be closed to 

purse seine fishing are all high seas 

areas within the two rectangles bounded 

by the bold black lines. The coordinates 

of the two rectangles are set forth in the 

proposed regulation. This map displays 

indicative maritime boundaries only. 

Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Proposed Rules 26163 

(4) Catch Retention 

The proposed rule would prohibit 

discarding bigeye tuna, yellowfin tuna, 

or skipjack tuna (Katsuwonus pelamis) 

from a U.S. purse seine vessel at sea 

within the Convention Area. Exceptions 

would be provided for fish that are unfit 

for human consumption for reasons 

other than their size, for the last set of 

the trip if there is insufficient well space 

to accommodate the entire catch, and 

for cases of serious malfunction of 

equipment that necessitate that fish be 

discarded. This element of the proposed 

rule would become effective no earlier 

than January 1, 2010, and only upon 

NMFS’ determination that an adequate 

number of WCPFC-approved observers 

are available for the purse seine vessels 

of all WCPFC CCMs as necessary to 

ensure compliance by such vessels with 

the catch retention requirement. Once it 

makes that determination, NMFS would 

announce the effective date of the 

requirement in a notice published in the 

Federal Register. The requirement 

would then remain in effect through 

December 31, 2011. 

(5) Observer Coverage 

The proposed rule would require that 

U.S. purse seine vessels carry observers 

deployed as part of the WCPFC ROP or 

deployed by NMFS on all trips in the 

Convention Area from August 1 through 

September 30, 2009 (the FAD 

prohibition period). It would also 

require, effective January 1, 2010, 

through December 31, 2011, that U.S. 

purse seine vessels carry WCPFCapproved observers on all trips in the 

Convention Area. These observer 

requirements would not apply to trips 

that take place exclusively within areas 

under the jurisdiction of the United 

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

territorial sea, or any other single 

nation. They also would not apply in 

cases where NMFS has determined that 

an observer is not available. 

(6) Sea Turtle Interaction Mitigation 

The proposed rule would require that 

owners and operators of U.S. purse 

seine vessels operating in the 

Convention Area carry specific 

equipment and use specific measures to 

disentangle, handle, and release sea 

turtles that are encountered in fishing 

gear, including purse seines and FADs. 

The required equipment would be a dip 

net with specified minimum design 

standards. The required measures 

would include: immediately releasing 

sea turtles that are observed enclosed in 

purse seines; disentangling sea turtles 

that are observed entangled in purse 

seines or FADs; stopping net roll until 

a sea turtle is disentangled from a purse 

seine; resuscitating sea turtles that 

appear dead or comatose; and releasing 

sea turtles back to the ocean in a 

specified manner. Unlike all the other 

elements of the proposed rule, this 

element would be effective indefinitely. 

Classification 

The NMFS Assistant Administrator 

has determined that this proposed rule 

is consistent with the Western and 

Central Pacific Fisheries Convention 

Implementation Act and other 

applicable laws, subject to further 

consideration after public comment. 

NMFS prepared an EA that analyzes 

the proposed rule’s expected impacts on 

the human environment. In the EA, 

NMFS compared the effects of the 

proposed rule and four alternatives to 

the proposed rule, including the NoAction or baseline alternative and three 

action alternatives. Although the 

alternatives would likely result in 

slightly different environmental 

impacts, all alternatives would have 

only minor impacts on bigeye tuna and 

other living marine resources in the 

WCPO. Overall, the expected impacts 


EP01JN09.000</GPH>
26164 Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Proposed Rules 

on bigeye tuna and other living marine 

resources from the proposed rule or any 

of the action alternatives are expected to 

be similar and generally beneficial. The 

action alternatives focus on analyzing a 

range of alternatives for the manner in 

which the limit on the number of 

fishing days would be implemented. 

NMFS initially considered two 

alternatives to the FAD prohibition 

period element of the proposed rule that 

were eliminated from detailed 

consideration. For the other elements of 

the proposed rule, NMFS was not able 

to identify any alternatives that were 

reasonable and feasible. The proposed 

rule is neither the most restrictive nor 

the least restrictive manner in which to 

implement the limit on the number of 

fishing days. Rather, the proposed rule 

seeks to establish a balance between the 

needs of fishery participants and the 

effects on the human environment. 

The effects on the human 

environment from the proposed rule are 

expected to be minor for the following 

reasons. First, the duration of the 

proposed rule (with the exception of the 

sea turtle mitigation requirements) 

would be limited to three years, after 

which, unless similar or more restrictive 

future actions are taken, conditions 

would likely rebound to conditions 

similar to those under the No-Action or 

baseline alternative. Second, the 

proposed rule would have relatively 

minor effects on the conduct or catches 

of the U.S. purse seine fleet, and 

consequently only minor effects on the 

total fishing mortality rates of the stocks 

captured by the fleet, including bigeye 

tuna and yellowfin tuna in the WCPO. 

However, other present and reasonably 

foreseeable future actions for the 

conservation and management of HMS 

could cause similar beneficial effects, so 

overall, the cumulative impacts on the 

affected environment could be greater 

than if the proposed rule were 

implemented in isolation. Specifically, 

implementation by the United States of 

the provisions of CMM 2008–01 

applicable to longline vessels (which 

NMFS intends to do via one or more 

separate rulemakings) and 

implementation by other CCMs of the 

provisions of the CMMs would enhance 

the beneficial impacts to bigeye tuna, 

yellowfin tuna, and other living marine 

resources. If the WCPFC adopts (and 

CCMs implement) similar or more 

restrictive measures after the three-year 

duration of CMM 2008–01, the 

beneficial impacts would be further 

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

likelihood of attaining the objectives of 

CMM 2008–01). 

The economic impacts of the 

proposed rule are addressed in the EA 

only insofar as they are related to 

impacts to the biophysical environment. 

They are addressed more fully in the 

RIR and IRFA. A copy of the EA is 

available from NMFS (see ADDRESSES). 

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 RFA. 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 

analysis follows: 

There would be no disproportionate 

economic impacts between small and 

large vessels resulting from this rule. 

Furthermore, there would be no 

disproportionate economic impacts, 

among all vessels, based on vessel size, 

gear, or homeport. 

Estimated Number of Small Entities 

Affected 

The proposed rule would apply to 

owners and operators of U.S. purse 

seine vessels used for fishing in the 

Convention Area. The number of 

affected vessels is the number licensed 

under the SPTT. The current number of 

licensed vessels is 39, but the number 

could soon reach the maximum number 

of licenses available under the Treaty 

(excluding joint-venture licenses), 

which is 40. Based on limited financial 

information available on the purse seine 

fleet, NMFS believes that as many as 10 

of the affected vessels are owned by 

small entities (i.e., they are business 

entities with gross annual receipts of no 

more than $4.0 million). 

Recordkeeping, Reporting, and Other 

Compliance Requirements 

The proposed rule would not 

establish any new reporting or 

recordkeeping requirements (within the 

meaning of the Paperwork Reduction 

Act). Affected vessel owners and 

operators would have to comply with all 

the proposed requirements, as described 

at the beginning of this section in the 

preamble. Fulfillment of these 

requirements is not expected to require 

any professional skills that the affected 

vessel owners and operators do not 

already possess, except that the 

proposed sea turtle handling and release 

requirements might require some 

training of crew members, as described 

further below. 

Economic Impacts to Small Entities 

(1) Fishing Effort Limits 

Owners and operators of purse seine 

vessels would have to cease fishing in 

the Convention Area in areas under U.S. 

jurisdiction and on the high seas if and 

when the fishery is closed as a result of 

the established effort limit being 

reached in one of the applicable periods 

(any of the calendar years 2009–2011, 

either of the two-year periods 2009– 

2010 and 2010–2011, or the three-year 

period 2009–2011). They would have to 

do so for the remainder of the calendar 

year. Closure of the fishery could cause 

foregone fishing opportunities and 

associated economic losses. The 

likelihood of the fishery being closed in 

any of the applicable periods and the 

economic losses a closure would bring 

cannot be projected with certainty. 

Two factors potentially important 

with respect to the likelihood of the 

limit being reached are per-vessel 

fishing effort and climate/ocean 

conditions. Because the effort limits 

would be set at a level that would be 

expected from 40 vessels, which is the 

expected fleet size under no-action, the 

limits may not have a high likelihood of 

being reached. However, because the 

proposed limits are based on average 

per-vessel fishing effort from 2004, if 

per-vessel effort levels in the no-action 

40–vessel fleet are greater than that 

historical level, the likelihood of the 

limit being reached would be that much 

greater. With respect to climatic and 

oceanic conditions, the spatial 

distribution of the fleet’s fishing effort is 

strongly influenced by conditions 

associated with El Nino-Southern 

Oscillation (ENSO) patterns. The eastern 

areas of the WCPO have tended to be 

comparatively more attractive to the 

fleet during El Nino events, when warm 

water spreads from the western Pacific 

to the eastern Pacific. Consequently, the 

areas subject to the proposed limit 

appear to be somewhat more important 

fishing grounds during El Nino events. 

If El Nino conditions occur during 

2009–2011 (the effective dates of this 

element of the proposed rule), the 

likelihood of the fishery being closed, 

along with any associated economic 

costs, would be slightly greater than if 

such an event does not occur. However, 

the proposed limits have been designed 

to mitigate that likelihood and the 

associated costs (not just in anticipation 

of El Nino events, but to accommodate 

the spatial-temporal variations in 

optimal fishing grounds that would be 

expected from any number of factors). 

Specifically, the most restrictive limit 

(in terms of allowable fishing days per 

unit of time) would be established for 

Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Proposed Rules 26165 

the entire three-year period. Less 

restrictive limits would be established 

for the one-year and two-year periods 

within the overall 2009–2011 period. 

This would allow some of the overall 

allowable effort for the 2009–2011 

period to be concentrated to a certain 

extent within shorter sub-periods, such 

as during El Nino events. 

The area that would be closed 

constitutes a relatively small portion of 

the fishing grounds available to, and 

typically used by, the U.S. purse seine 

fleet. Unpublished NMFS data indicate 

that, on average, during 1997 through 

2007, fishing effort in the U.S. EEZ and 

on the high seas made up about 30 

percent of the annual total, and 

percentage among those years ranged 

from 22 to 40. In the event of a closure, 

affected vessels could continue to be 

used in the Convention Area in foreign 

EEZs, to the extent authorized. Given 

that foreign EEZs in the Convention 

Area have collectively received the 

majority of the U.S. purse seine fleet’s 

fishing effort (60 to 78 percent in the 

years 1997–2007), the cost associated 

with being limited to such areas would 

likely not be substantial. Nonetheless, 

the closure of any fishing grounds 

would be expected to bring some 

(unquantifiable) costs to affected entities 

(e.g., because revenues per unit of 

fishing effort in the open area might, 

during the closed period, be lower than 

in the closed area), and as indicated in 

the preceding paragraph, the losses 

would vary depending on where the 

best fishing grounds are during the 

closed period, which is dependent in 

part on ENSO-related conditions. 

The effort limit could affect the 

temporal distribution of fishing effort in 

the U.S. purse seine fishery. Since the 

limit would be competitive that is, not 

allocated among individual vessels, 

vessel operators might have an incentive 

to fish harder in the affected area earlier 

in a given limit-period (e.g., one of the 

calendar years 2009–2011) than they 

otherwise would. To the extent such a 

shift occurs, it could affect the seasonal 

timing of fish catches and deliveries to 

canneries. If, for example, deliveries 

from the fleet were substantially 

concentrated early in the year, it could 

adversely affect prices during that 

period. However, as discussed in the 

preceding paragraphs, the majority of 

fishing effort is expected to occur 

outside the area subject to the proposed 

limit, so the timing of catches and 

deliveries would not be appreciably 

impacted by a ‘‘race-to-fish’’ in the area 

subject to the limit. Furthermore, the 

timing of cannery deliveries by the U.S. 

fleet alone is unlikely to have an 

appreciable impact on prices, since the 

canneries buy from the fleets of multiple 

nations. A race to fish could bring costs 

to affected entities if it causes vessel 

operators to forego vessel maintenance 

or to fish in weather or ocean conditions 

that it otherwise would not. This could 

bring costs in terms of human safety as 

well as the economic performance of the 

vessel. A race-to-fish effect might also 

be expected in the time period between 

when a closure of the fishery is 

announced and when it is actually 

closed, which would be at least seven 

calendar days. For the reasons stated 

above, any such effect and its adverse 

impacts are expected to be minor. In 

addition, there is no evidence that 

economies of scale will favor those 

vessels that are defined as large over 

small vessels or vice versa when effort 

is constrained by these measures. 

(2) FAD Prohibition Periods 

The prohibitions on fishing in 

association with FADs during specified 

periods in each of the years 2009–2011 

(August and September in 2009 and July 

through September in 2010 and 2011) 

would substantially constrain the 

manner in which purse seine fishing 

could be conducted during those 

periods. The costs associated with these 

constraints cannot be projected, but the 

fleet’s historical use of FADs can give a 

qualitative indication of the costs. In the 

years 1997–2007, the proportion of sets 

made on FADs in the U.S. purse seine 

fishery ranged from less than 40 percent 

in some years to more than 90 percent 

in others. The importance of FADs in 

terms of profits appears to be quite 

variable over time, and is probably a 

function of many factors, including fuel 

prices (e.g., unassociated sets involve 

more searching time and thus tend to 

bring higher fuel costs than FAD sets) 

and market conditions (e.g., FADfishing, which tends to result in greater 

catches of small skipjack tuna than 

unassociated sets, might be more 

attractive and profitable when canneries 

are not rejecting small fish). Thus, the 

costs of implementing the FAD 

prohibition periods would depend on a 

variety of factors. The fact that the fleet 

has typically made a large portion of its 

sets on FADs suggests that prohibiting 

the use of FADs for two to three months 

each year would bring substantial costs 

to affected entities. Given current 

market conditions, it seems unlikely 

that any affected entities would choose 

not to fish during the FAD prohibition 

periods rather than fish without the use 

of FADs. However, as described below 

for element (5) on observer coverage, 

affected vessels would also bear costs 

associated with having to carry an 

observer during the 2009 FAD 

prohibition period. To mitigate the costs 

that the FAD prohibition periods would 

bring, vessel operators might choose to 

schedule their routine vessel 

maintenance during a portion of those 

periods. 

(3) High Seas Area Closures 

Closure of the two areas of high seas 

in the Convention Area in 2010 and 

2011 would foreclose fishing 

opportunities and bring associated 

economic costs to affected entities. 

Those costs cannot be quantified, but 

because the affected areas constitute a 

relatively small portion of the fleet’s 

traditional fishing grounds, the closures 

would not be expected to have a large 

effect on the ability of vessels to fish 

and generate revenue. NMFS 

unpublished data from vessel logbooks 

indicate that from 1997 through 2007, 

the proportion of the fleet’s total annual 

catch that was taken from the two areas 

collectively was about 10 percent, and 

ranged from about 3 to 20 percent. Total 

fishing effort by particular vessels 

would likely be unaffected, but the 

spatial distribution of effort would 

necessarily shift out of the affected areas 

into what would be less attractive, and 

in some cases, less profitable, fishing 

grounds. 

(4) Catch Retention 

Implementing the catch retention 

requirement would bring costs 

associated with having to fill well space 

with less valuable, and in some cases, 

unmarketable, product. Those costs 

cannot be quantified, but historical tuna 

discard rates in the U.S. purse seine 

fishery give a qualitative indication. 

Based on vessel observer data for the 

U.S. EEZ for the years 1997–2001, 

annual estimated discard rates (by 

weight) of bigeye tuna, skipjack tuna, 

and yellowfin tuna averaged 9 percent, 

13 percent, and 6 percent, respectively. 

The compliance costs of the catch 

retention requirement would likely be 

different for vessels that tend to operate 

out of Pago Pago and deliver their catch 

to the canneries in Pago Pago versus 

vessels that transship most of their catch 

to other vessels. For vessels in the 

former category, which have to steam 

relatively far from the fishing grounds in 

order to land their fish, a fishing trip 

typically only ends when the fish holds 

are full in order to maximize revenue 

during a given trip. Revenues and 

profits for these vessels are therefore 

strongly dependent on the capacity of 

their fish wells and on the value of fish 

per unit of well space. There have been 

occasions where the canneries have 

charged vessel operators to unload small 

fish. If that occurs with small fish that 

26166 Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Proposed Rules 

under this proposed rule are retained 

that otherwise would not be, vessel 

owners and operators would bear direct 

economic costs. For vessels that tend to 

transship their catches at ports near the 

fishing grounds, well space is a less 

important constraint on profits, so the 

economic impacts of this requirement 

on these vessels would likely be less. 

(5) Observer Coverage 

Compliance costs are first estimated 

for 2009, in which vessels would be 

required to carry an observer during the 

FAD prohibition period, from August 1 

through September 30, and then 

estimated for 2010 and 2011, when 

vessels would be required to carry 

observers on all trips. 

Under the current 20 percent observer 

coverage requirement under the SPTT, 

vessels that operate out of Pago Pago, 

American Samoa, typically carry an 

observer on about one trip per year. The 

observers required under the terms of 

the SPTT are deployed by the Pacific 

Islands Forum Fisheries Agency (FFA), 

which acts as the SPTT Administrator 

on behalf of the Pacific Island Parties to 

the SPTT. Under an agreement between 

the United States and the Pacific Island 

Parties to the SPTT, the observers 

deployed for the purpose of meeting this 

new WCPFC-mandated observer 

requirement would also be deployed by 

the FFA. Under the SPTT, the FFA 

dictates the deployment of observers 

and the U.S. facilitates their placement 

on vessels. Deployment is done in a way 

such that vessel operators have 

essentially no control over which trips 

will be observed. 

In 2009, if an SPTT-mandated 

observer is deployed by the FFA on a 

trip that includes the FAD prohibition 

period, that would satisfy this new 

WCPFC-mandated observer 

requirement, and there would be no 

new compliance costs for the affected 

vessel in 2009. If, on the other hand, an 

SPTT-mandated observer is not 

deployed on the trip or trips that 

include the 2009 FAD prohibition 

period, then the affected vessel would 

have to carry an observer (assuming an 

observer is available) on that trip or 

trips as well as on any trips that it 

carries an SPTT-mandated observer. In 

that case, the new compliance costs 

would be as follows: 

The owner and operator of the 

affected vessel would be responsible for 

both the cost of providing food, 

accommodation, and medical facilities 

to observers (termed ‘‘observer 

accommodation costs’’ here), and 

certain costs imposed by the FFA for the 

operation of its observer program as it 

is applied to the U.S. purse seine fleet 

(termed ‘‘observer deployment costs’’ 

here). For the purpose of estimating 

these costs, it is assumed that an 

affected vessel would schedule its trips 

such that it takes one trip during the 61– 

day FAD prohibition period and that the 

trip lasts for the duration of the period 

(vessel logbook data indicate average 

trip lengths of more than 70 days in 

2003 and 2004, but the averages in 2007 

and 2008 were less than 40 days; SPC 

2009a). If the timing or duration of an 

affected vessel’s trips differs from these 

assumptions, the costs it would bear 

would vary accordingly from the 

estimates given in the following 

paragraphs. 

Observer accommodation costs are 

expected to be about $20 per day, so 

total observer accommodation costs in 

2009 for an affected vessel would be 

$1,400. 

Based on the budget for the FFA 

observer program for the 2008–2009 

SPTT licensing period, which is based 

on a 20 percent coverage rate, observer 

deployment costs are approximately 

$8,630 per vessel per year, or per 

observed trip. According to the budget, 

about 28 percent of those costs, or 

$2,416, are fixed costs (as opposed to 

variable, or per-trip, costs). It is not 

known how the fixed component of 

costs would change with the increase in 

coverage from the current 20–percent 

level. Assuming that fixed costs do not 

change at all, the cost for an additional 

observed trip in 2009 would be about 

$6,200. If, on the other hand, fixed costs 

increase in proportion to the number of 

trips observed, the cost for an additional 

observed trip in 2009 would be about 

$8,600. 

In 2010 and 2011, observer coverage 

would be required on all trips. 

Assuming, based on recent logbook 

data, that an affected purse seine vessel 

spends 285 days at sea each year, and, 

as described above, $20 per observedsea-day in observer accommodation 

costs, annual observer accommodation 

costs at 100 percent coverage would be 

about $5,700 per vessel. Of these 

estimated costs, 80 percent, or $4,600 

per vessel, would be ‘‘new’’ annual 

costs associated with this proposed 

requirement. 

Observer deployment costs in 2010 

and 2011 are estimated based on the 

FFA observer program budget for the 

2008–2009 SPTT licensing period, as 

done for 2009 in the preceding 

paragraphs. If fixed costs do not change 

at all in response to the increased 

observer coverage rate, the annual cost 

per vessel at 100 percent coverage 

would be about $33,400. If fixed costs 

increase in proportion to the level of 

observer coverage, the annual cost per 

vessel at 100 percent coverage would be 

about $43,200. Of these estimated pervessel costs, 80 percent, or $26,700 to 

$34,500, would be new annual costs 

associated with this proposed 

requirement. 

In summary, in 2009, affected vessels 

would be subject to compliance costs of 

up to about $7,600 to $10,000 ($1,400 in 

observer accommodation costs plus 

$6,200 to $8,600 in observer 

deployment costs). In each of 2010 and 

2011, affected vessels would be subject 

to compliance costs of up to about 

$31,300 to $39,100 ($4,600 in observer 

accommodation costs plus $26,700 to 

$34,500 in observer deployment costs). 

Detailed up-to-date information on 

revenues and costs in the fleet are not 

available, but a 1998 study found 

average gross revenues per vessel to be 

about $4.7 million, which is equivalent 

to about $6.1 million in 2009 dollars. 

Thus, the expected observer-related 

compliance costs are roughly 0.5 to 0.6 

percent of average gross revenues. 

As described above for element (2) on 

the FAD prohibition periods, to mitigate 

the costs associated with the 2009 FAD 

prohibition period, including the 

observer-related costs identified here, 

vessel operators might choose to 

schedule their routine vessel 

maintenance during a portion of that 

period. 

(6) Sea Turtle Interaction Mitigation 

The costs of complying with the 

proposed sea turtle interaction 

mitigation requirements would include 

the costs of obtaining the required dip 

net, ensuring that crew members are 

adequately trained to execute the 

required mitigation measures, and the 

time and labor required to handle and 

release sea turtles in the required 

manner (potentially at the expense of 

fishing time). A dip net with the 

minimum required specifications is 

estimated to cost no more than $100. 

Training costs cannot be quantified, but 

because the proposed requirements are 

relatively simple, crew members can 

probably become sufficiently skilled 

through informal training using 

educational materials provide by NMFS. 

Training costs are consequently 

expected to be minor. Handling and 

releasing sea turtles in the required 

manner might involve more time on the 

part of crew members than is currently 

spent dealing with sea turtles that are 

entangled or encountered. However, 

such incidents occur only rarely in the 

fishery, so the costs of labor and lost 

fishing time are expected to be minor. 

Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Proposed Rules 26167 

Duplicating, Overlapping, and 

Conflicting Federal Regulations 

NMFS has not identified any Federal 

regulations that duplicate, overlap with, 

or conflict with the proposed 

regulations, with the exception of the 

proposed observer requirements. U.S. 

purse seine vessels are subject to 

regulations issued under authority of 

the South Pacific Tuna Act of 1988 

(SPTA; 16 U.S.C. 973–973r), at 50 CFR 

300.43. Those regulations require that 

operators and crew members of vessels 

operating pursuant to the SPTT allow 

and assist any person identified as an 

observer by the Pacific Island Parties to 

the SPTT to board the vessel and 

conduct and perform specified observer 

functions. Under the terms of the SPTT, 

U.S. purse seine vessels carry such 

observers on approximately 20 percent 

of their trips. The proposed observer 

requirement would overlap with the 

existing regulations in that carrying an 

observer pursuant to 50 CFR 300.43 

would satisfy the proposed requirement 

that an observer be carried during the 

FAD prohibition period of 2009. The 

proposed requirement would not 

duplicate or conflict with existing 

regulations. 

Alternatives to the Proposed Rule 

NMFS has identified and considered 

several alternatives to the proposed rule. 

The alternatives are limited to the way 

in which the fishing effort limits would 

be implemented. 

One alternative differs from the 

proposed rule only in that the fishing 

effort limits would be allocated among 

individual vessels. This would likely 

alleviate any adverse impacts of the 

race-to-fish that might occur as a result 

of establishing the competitive fishing 

effort limits as in the proposed rule. As 

described in the previous paragraphs, 

those potential impacts include lower 

prices for landed product and risks to 

performance and safety stemming from 

fishing during sub-optimal times. Those 

impacts, however, are expected to be 

minor, so this alternative is not 

preferred. 

Another alternative would differ from 

the proposed rule only in that there 

would be a single limit of 7,764 fishing 

days (three times the fishing effort rate 

of 2,588 fishing days per year) for the 

entire three-year period 2009–2011. 

This would provide slightly more 

operational flexibility to affected vessels 

than the proposed rule, which could 

bring lower compliance costs. However, 

the lack of any limits for a given year 

would bring the potential for a longer 

closed period (e.g., during a substantial 

part of 2011) than would likely occur 

under the proposed rule (under which 

relatively brief closures might be 

expected in one or more of the years 

2009–2011). To the extent that 

continuous fishing and continuity of 

supply are important for the fishery, 

several short closures might cause less 

adverse economic impacts than a single 

long closure, and for this reason, this 

alternative is not preferred. For 

example, with a brief closure each year, 

vessel owners and operators might be 

able to schedule routine vessel 

maintenance during the closed periods 

and mitigate the losses of not being able 

to fish. This would be more difficult to 

do during a longer closed period. In any 

case, as described in the preceding 

paragraphs, because the majority of the 

fleet’s traditional fishing grounds would 

not be subject to the limit or the closure, 

the potential losses caused by a closed 

period however short or long are likely 

to be relatively minor. 

Another alternative would establish 

separate fishing effort limits for the high 

seas and for areas under U.S. 

jurisdiction and separate limits for each 

of the SPTT licensing years (which run 

from June 15 through June 14) during 

2009–2011. In accordance with the 

baseline effort levels specified in CMM 

2008–01, the limits would be 2,030 

fishing days on the high seas and 558 

fishing days in areas under U.S. 

jurisdiction. Because this alternative 

would provide less operational 

flexibility for affected purse seine 

vessels, the limits would be more 

constraining than those established 

under the proposed rule, and 

consequently more costly. It is not 

preferred for that reason. 

The alternative of taking no action at 

all is not preferred because it would fail 

to accomplish the objective of the Act or 

satisfy the international obligations of 

the United States as a Contracting Party 

to the Convention. 

List of Subjects in 50 CFR Part 300 

Administrative practice and 

procedure, Fish, Fisheries, Fishing, 

Marine resources, Reporting and 

recordkeeping requirements, Treaties. 

Dated: May 27, 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, subpart O, 

which was proposed to be added at 74 

FR 23965, is proposed to be further 

amended as follows: 

PART 300—INTERNATIONAL 

FISHERIES REGULATIONS 

Subpart O–Western and Central Pacific 

Fisheries for Highly Migratory Species 

1. The authority citation for 50 CFR 

part 300, subpart O, continues to read as 

follows: 

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

2. In § 300.211, definitions of ‘‘Effort 

Limit Area for Purse Seine’’ or 

‘‘ELAPS’’, ‘‘Fish aggregating device’’ or 

‘‘FAD’’, ‘‘Fishing day’’, ‘‘Fishing trip’’, 

and ‘‘Purse seine’’ are added, in 

alphabetical order, to read as follows: 

§ 300.211 Definitions. 

* * * * * 

Effort Limit Area for Purse Seine, or 

ELAPS, means, within the area between 

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

within the Convention Area that either 

are high seas or are within the 

jurisdiction of the United States, 

including the EEZ and territorial sea. 

Fish aggregating device, or FAD, 

means any artificial or natural floating 

object, whether anchored or not and 

whether situated at the water surface or 

not, that is capable of aggregating fish, 

as well as any objects used for that 

purpose that are situated on board a 

vessel or otherwise out of the water. 

* * * * * 

Fishing day means, for the purpose of 

§ 300.223, any day in which a fishing 

vessel of the United States equipped 

with purse seine gear searches for fish, 

deploys a FAD, services a FAD, or sets 

a purse seine, with the exception of 

setting a purse seine solely for the 

purpose of testing or cleaning the gear 

and resulting in no catch. 

Fishing trip means a period that a 

fishing vessel spends at sea between 

port visits and during which any fishing 

occurs. 

* * * * * 

Purse seine means a floated and 

weighted encircling net that is closed by 

means of a drawstring threaded through 

rings attached to the bottom of the net. 

* * * * * 

3. A new § 300.223 is added to read 

as follows: 

§ 300.223 Purse seine fishing restrictions. 

(a) Fishing effort limits. This section 

establishes limits on the number of 

fishing days that fishing vessels of the 

United States equipped with purse seine 

gear may collectively spend in the 

ELAPS. 

(1) The limits are as follows: 

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

and 2011, there is a limit of 3,882 

fishing days. 

26168 Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Proposed Rules 

(ii) For each of the two-year periods 

2009–2010 and 2010–2011, there is a 

limit of 6,470 fishing days. 

(iii) For the three-year period 2009– 

2011, there is a limit of 7,764 fishing 

days. 

(2) NMFS will determine the number 

of fishing days spent in the ELAPS in 

each of the applicable time periods 

using data submitted in logbooks and 

other available information. After NMFS 

determines that the limit in any 

applicable time period is expected to be 

reached by a specific future date, and at 

least seven calendar days in advance of 

the closure date, NMFS will publish a 

notice in the Federal Register 

announcing that the purse seine fishery 

in the ELAPS will be closed starting on 

that specific future date and will remain 

closed until the end of the applicable 

time period. 

(3) Once a fishery closure is 

announced pursuant to paragraph (a)(2) 

of this section, fishing vessels of the 

United States equipped with purse seine 

gear may not be used to fish in the 

ELAPS during the period specified in 

the Federal Register notice. 

(b) Use of fish aggregating devices. 

From August 1 through September 30, 

2009, and from July 1 through 

September 30 in each of 2010 and 2011, 

owners, operators, and crew of fishing 

vessels of the United States shall not do 

any of the following in the convention 

area: 

(1) Set a purse seine around a FAD or 

within one nautical mile of a FAD. 

(2) Set a purse seine in a manner 

intended to capture fish that have 

aggregated in association with a FAD, 

such as by setting the purse seine in an 

area from which a FAD has been moved 

or removed within the previous eight 

hours or setting the purse seine in an 

area into which fish were drawn by a 

vessel from the vicinity of a FAD. 

(3) Deploy a FAD into the water. 

(4) Repair, clean, maintain, or 

otherwise service a FAD, including any 

electronic equipment used in 

association with a FAD, in the water or 

on a vessel while at sea, except that a 

FAD may be inspected and handled as 

needed to identify the owner of the 

FAD, identify and release incidentally 

captured animals, un-foul fishing gear, 

or prevent damage to property or risk to 

human safety. 

(c) Closed areas. 

(1) Effective January 1, 2010, through 

December 31, 2011, a fishing vessel of 

the United States may not be used to 

fish with purse seine gear on the high 

seas within either Area A or Area B, the 

respective boundaries of which are the 

four lines connecting, in the most direct 

fashion, the coordinates specified as 

follows: 

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

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

longitude; 0° latitude and 153° E. 

longitude; and 0° latitude and 134° E. 

longitude. 

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

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

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

longitude; and 12° S. latitude and 156° 

E. longitude. 

(2) NMFS may, through publication of 

a notice in the Federal Register, nullify 

any or all of the area closures specified 

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

(d) Catch retention. 

(1) Based on its determination as to 

whether an adequate number of WCPFC 

observers are available for the purse 

seine vessels of all Members of the 

Commission as necessary to ensure 

compliance by such vessels with the 

catch retention requirements established 

by the Commission, NMFS will, through 

publication of a notice in the Federal 

Register, announce the effective date of 

the provisions of paragraph (d) of this 

section. The effective date will be no 

earlier than January 1, 2010. 

(2) If, after announcing the effective 

date of the these requirements under 

paragraph (1) of this section, NMFS 

determines that there is no longer an 

adequate number of WCPFC observers 

available for the purse seine vessels of 

all Members of the Commission as 

necessary to ensure compliance by such 

vessels with the catch retention 

requirements established by the 

Commission, NMFS may, through 

publication of a notice in the Federal 

Register, nullify any or all of the 

requirements specified in paragraph (d) 

of this section. 

(3) Effective from the date announced 

pursuant to paragraph (d)(1) of this 

section through December 31, 2011, a 

fishing vessel of the United States 

equipped with purse seine gear may not 

discard at sea within the Convention 

Area any bigeye tuna (Thunnus obesus), 

yellowfin tuna (Thunnus albacares), or 

skipjack tuna (Katsuwonus pelamis), 

except in the following circumstances 

and with the following conditions: 

(i) Fish that are unfit for human 

consumption, including but not limited 

to fish that are spoiled, pulverized, 

severed, or partially consumed at the 

time they are brought on board, may be 

discarded. 

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

is insufficient well space to 

accommodate all the fish captured in a 

given purse seine set, fish captured in 

that set may be discarded, provided that 

no additional purse seine sets are made 

during the fishing trip. 

(iii) If a serious malfunction of 

equipment occurs that necessitates that 

fish be discarded. 

(e) Observer coverage. 

(1) From August 1 through September 

30, 2009, a fishing vessel of the United 

States that is equipped with purse seine 

gear may not be used to fish in the 

Convention Area without a WCPFC 

observer or an observer deployed by 

NMFS on board. This requirement does 

not apply to fishing trips that meet any 

of the following conditions: 

(i) The portion of the fishing trip 

within the Convention Area takes place 

entirely within areas under U.S. 

jurisdiction or entirely within areas of 

jurisdiction of a single nation other than 

the United States. 

(ii) No fishing takes place during the 

fishing trip in the Convention Area in 

the area between 20° N. latitude and 20° 

S. latitude. 

(iii) The Regional Administrator has 

determined that an observer is not 

available for the fishing trip and a 

written copy of the Regional 

Administrator’s determination, which 

must include the approximate start date 

of the fishing trip and the port of 

departure, is carried on board the 

fishing vessel during the entirety of the 

fishing trip. 

(2) Effective January 1, 2010, through 

December 31, 2011, a fishing vessel of 

the United States may not be used to 

fish with purse seine gear in the 

Convention Area without a WCPFC 

observer on board. This requirement 

does not apply to fishing trips that meet 

any of the following conditions: 

(i) The portion of the fishing trip 

within the Convention Area takes place 

entirely within areas under U.S. 

jurisdiction or entirely within the areas 

of jurisdiction of a single nation other 

than the United States. 

(ii) No fishing takes place during the 

fishing trip in the Convention Area in 

the area between 20° N. latitude and 20° 

S. latitude. 

(iii) The Regional Administrator has 

determined that a WCPFC observer is 

not available for the fishing trip and a 

written copy of the Regional 

Administrator’s determination, which 

must include the approximate start date 

of the fishing trip and the port of 

departure, is carried on board the 

fishing vessel during the entirety of the 

fishing trip. 

(3) Owners, operators, and crew of 

fishing vessels subject to paragraphs 

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

accommodate WCPFC observers in 

accordance with the provisions of 

§ 300.215(c). 

(4) Meeting any of the conditions in 

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

Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Proposed Rules 26169 

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

section does not exempt a fishing vessel 

from having to carry and accommodate 

a WCPFC observer pursuant to § 300.215 

or other applicable regulations. 

(f) Sea turtle take mitigation 

measures. 

(1) Possession and use of required 

mitigation gear. Any owner or operator 

of a fishing vessel of the United States 

equipped with purse seine gear that is 

used to fish in the Convention Area 

must carry aboard the vessel the 

following gear: 

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

facilitate safe handling of sea turtles and 

access to sea turtles for purposes of 

removing sea turtles from fishing gear, 

bringing sea turtles aboard the vessel 

when appropriate, and releasing sea 

turtles from the vessel. The minimum 

design standards for dip nets that meet 

the requirements of this section are: 

(A) An extended reach handle. The 

dip net must have an extended reach 

handle with a minimum length of 150 

percent of the freeboard height. The 

extended reach handle must be made of 

wood or other rigid material able to 

support a minimum of 100 lb (34.1 kg) 

without breaking or significant bending 

or distortion. 

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

have a net hoop of at least 31 inches 

(78.74 cm) inside diameter and a bag 

depth of at least 38 inches (96.52 cm). 

The bag mesh openings may be no more 

than 3 inches 3 inches (7.62 cm 7.62 

cm) in size. 

(ii) Optional turtle hoist. A turtle hoist 

is used for the same purpose as a dip 

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

a turtle hoist may be carried on board 

and used instead of the dip net to 

handle sea turtles as required in 

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

minimum design standards for turtle 

hoists that are used instead of dip nets 

to meet the requirements of this section 

are: 

(A) Frame and net. The turtle hoist 

must consist of one or more rigid frames 

to which a bag of mesh netting is 

securely attached. The frame or smallest 

of the frames must have a minimum 

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

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

capable of supporting a minimum of 100 

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

hinged or otherwise designed so they 

can be folded for ease of storage, 

provided that they have no sharp edges 

and can be quickly reassembled. The 

bag mesh openings may be no more than 

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

in size. 

(B) Lines. Lines used to lower and 

raise the frame and net must be securely 

attached to the frame in multiple places 

such that the frame remains stable when 

lowered and raised. 

(2) Handling requirements. Any 

owner or operator of a fishing vessel of 

the United States equipped with purse 

seine gear that is used to fish in the 

Convention Area must, if a sea turtle is 

observed to be enclosed or entangled in 

a purse seine, a FAD, or other fishing 

gear, comply with these handling 

requirements, including using the 

required mitigation gear specified in 

paragraph (f)(1) of this section as 

prescribed in these handling 

requirements. Any captured or 

entangled sea turtle must be handled in 

a manner to minimize injury and 

promote survival. 

(i) Sea turtles enclosed in purse 

seines. If the sea turtle is observed 

enclosed in a purse seine but not 

entangled, it must be released 

immediately from the purse seine with 

the dip net or turtle hoist. 

(ii) Sea turtles entangled in purse 

seines. If the sea turtle is observed 

entangled in a purse seine, the net roll 

must be stopped as soon as the sea turtle 

comes out of the water, and must not 

start again until the turtle has been 

disentangled and released. The sea 

turtle must be handled and released in 

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

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

section. 

(iii) Sea turtles entangled in FADs. If 

the sea turtle is observed entangled in 

a FAD, it must be disentangled or the 

FAD must be cut immediately so as to 

remove the sea turtle. The sea turtle 

must be handled and released in 

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

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

section. 

(iv) Disentangled sea turtles that 

cannot be brought aboard. After 

disentanglement, if the sea turtle is not 

already on board the vessel and it is too 

large to be brought aboard or cannot be 

brought aboard without sustaining 

further injury, it shall be left where it is 

in the water, or gently moved, using the 

dip net or turtle hoist if necessary, to an 

area away from the fishing gear and 

away from the propeller. 

(v) Disentangled sea turtles that can 

be brought aboard. After 

disentanglement, if the sea turtle is not 

too large to be brought aboard and can 

be brought aboard without sustaining 

further injury, the following actions 

shall be taken: 

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

the sea turtle must be brought aboard 

immediately; and 

(B) The sea turtle must be handled in 

accordance with the procedures in 

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

section. 

(vi) Sea turtle resuscitation. If a sea 

turtle brought aboard appears dead or 

comatose, the following actions must be 

taken: 

(A) The sea turtle must be placed on 

its belly (on the bottom shell or 

plastron) so that it is right side up and 

its hindquarters elevated at least 6 

inches (15.24 cm) for a period of no less 

than 4 hours and no more than 24 

hours. The amount of the elevation 

varies with the size of the sea turtle; 

greater elevations are needed for larger 

sea turtles; 

(B) A reflex test must be administered 

at least once every 3 hours. The test is 

to be performed by gently touching the 

eye and pinching the tail of a sea turtle 

to determine if the sea turtle is 

responsive; 

(C) The sea turtle must be kept shaded 

and damp or moist (but under no 

circumstances place the sea turtle into 

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

covering the nostrils), carapace and 

flippers is the most effective method of 

keeping a sea turtle moist; and 

(D) If the sea turtle revives and 

becomes active, it must be returned to 

the sea in the manner described in 

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

turtles that fail to revive within the 24– 

hour period must also be returned to the 

sea in the manner described in 

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

unless NMFS requests that the turtle or 

part thereof be kept on board and 

delivered to NMFS for research 

purposes. 

(vii) Sea turtle release. After handling 

a sea turtle in accordance with the 

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

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

must be returned to the ocean after 

identification unless NMFS requests the 

retention of a dead sea turtle for 

research. In releasing a sea turtle the 

vessel owner or operator must: 

(A) Place the vessel engine in neutral 

gear so that the propeller is disengaged 

and the vessel is stopped; 

(B) Using the dip net or a turtle hoist 

to release the sea turtle with little 

impact, gently release the sea turtle 

away from any deployed gear; and 

(C) Observe that the turtle is safely 

away from the vessel before engaging 

the propeller and continuing operations. 

(viii) Other sea turtle requirements. 

No sea turtle, including a dead turtle, 

may be consumed or sold. A sea turtle 

may be landed, offloaded, transshipped 

or kept below deck only if NMFS 

requests the retention of a dead sea 

turtle or a part thereof for research. 

4. In § 300.222, paragraphs (v) through 

(aa) are added to read as follows: 

26170 Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Proposed Rules 

§ 300.222 Prohibitions. 

* * * * * 

(v) Use a fishing vessel equipped with 

purse seine gear to fish in the ELAPS 

while the fishery is closed under 

§ 300.223(a). 

(w) Set a purse seine around, near or 

in association with a FAD or deploy or 

service a FAD in contravention of 

§ 300.223(b). 

(x) Use a fishing vessel equipped with 

purse seine gear to fish in an area closed 

under § 300.223(c). 

(y) Discard fish at sea in the ELAPS 

in contravention of § 300.223(d). 

(z) Fail to carry an observer as 

required in § 300.223(e). 

(aa) Fail to comply with the sea turtle 

mitigation gear and handling 

requirements of § 300.223(f). 

[FR Doc. E9–12646 Filed 5–29–09; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

RIN 0648–AW19 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Shrimp 

Fishery off the Southern Atlantic 

States; Amendment 7 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of Availability of 

Amendment 7 to the Fishery 

Management Plan for the Shrimp 

Fishery of the South Atlantic Region; 

request for comments. 

SUMMARY: The South Atlantic Fishery 

Management Council (Council) has 

submitted Amendment 7 to the Fishery 

Management Plan for the Shrimp 

Fishery of the South Atlantic Region 

(FMP) for review, approval, and 

implementation by NMFS. Amendment 

7 proposes actions to rename the 

commercial vessel permit and the 

limited access endorsement; remove the 

requirement for a minimum level of 

landings for the renewal of a limited 

access endorsement; allow the reissue of 

a limited access endorsement that had 

been terminated because of failure to 

meet that minimum level; allow the 

reissue of an endorsement that had been 

terminated because of failure to renew 

it in a timely manner; and require the 

submission of economic data by 

participants in the fishery. The 

measures contained in the subject 

amendment are intended to maintain a 

viable rock shrimp fishery in the South 

Atlantic region. 

DATES: Comments must be received no 

later than 5 p.m., eastern time, on July 

31, 2009. 

ADDRESSES: You may submit comments 

on the proposed rule, identified by 

‘‘0648–AW19’’, by any one of the 

following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. 

• Fax: 727–824–5308, Attn: Kate 

Michie. 

• Mail: Kate Michie, Southeast 

Regional Office, NMFS, 263 13th 

Avenue South, St. Petersburg, FL 33701. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

To submit comments through the 

Federal e-Rulemaking Portal: http:// 

www.regulations.gov, enter ‘‘NOAANMFS–2008–0319’’ in the keyword 

search, then check the box labeled 

‘‘Select to find documents accepting 

comments or submissions’’, then select 

‘‘Send a Comment or Submission.’’ 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF file formats only. 

Copies of Amendment 7 may be 

obtained from the South Atlantic 

Fishery Management Council, 4055 

Faber Place, Suite 201, North 

Charleston, SC 29405; phone: 843–571– 

4366 or 866–SAFMC–10 (toll free); fax: 

843–769–4520; e-mail: 

safmc@safmc.net. Amendment 7 

includes an Environmental Assessment, 

an Initial Regulatory Flexibility 

Analysis, a Regulatory Impact Review, 

and a Social Impact Assessment/Fishery 

Impact Statement. 

FOR FURTHER INFORMATION CONTACT: Kate 

Michie, telephone: 727–824–5305; fax: 

727–824–5308; e-mail: 

Kate.Michie@noaa.gov. 

SUPPLEMENTARY INFORMATION: The South 

Atlantic shrimp fishery is managed 

under the FMP. The FMP was prepared 

by the Council and implemented by 

NMFS under the authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) by regulations 

at 50 CFR part 622. 

Background 

Amendment 5 to the FMP established 

a limited access program for the rock 

shrimp fishery in federal waters south of 

the South Carolina/Georgia state line. In 

2003, endorsements were issued to 

vessels with at least 15,000 pounds of 

rock shrimp landings in any one year 

during 1997–2000. A vessel must land 

at least 15,000 pounds of rock shrimp in 

at least one year during any four 

consecutive years or the endorsement 

cannot be renewed. The Rock Shrimp 

Advisory Panel (AP) suggested these 

landings requirements because they 

were concerned about the high number 

of latent permit holders and vessels that 

fished infrequently. The limited access 

program criteria were set so the core 

group of participants would remain in 

the fishery while overall effort was 

reduced. Of the 155 vessels issued 

limited access endorsements, 105 are 

currently active, 20 are renewable, and 

30 are non-renewable. Therefore, a 

maximum of 125 endorsements are or 

may become active in the rock shrimp 

fishery under the current permit 

requirements. 

The need for action through 

Amendment 7 to the FMP is based on 

the desire to maintain a viable rock 

shrimp fishery in the South Atlantic 

region. The AP suggested the fishery 

could support no more than 150 vessels. 

However, fewer vessels may not fully 

utilize the resource. The Council has 

determined that actions implemented 

through Amendment 5 have resulted in 

the desired reduction in capacity and 

may no longer be necessary in light of 

changes in the rock shrimp fishery over 

the past six years. 

The Council is primarily concerned 

about the 15,000–pound landing 

requirement because 43 vessels have not 

met the requirement after the first four 

years of the program. The AP suggested 

the Council consider whether this 

provision should be retained, revoked, 

revised, or possibly extended (i.e. allow 

vessels a longer time period to meet the 

requirement). In addition, the AP 

suggested reinstatement of 

endorsements lost as a result of not 

meeting the landings requirement. 

Another issue involves the 

requirement for vessel owners to renew 

their vessel’s endorsement within one 

year after the endorsement’s expiration 

date to retain their eligibility. The 

Council is concerned about confusion 

over the rock shrimp limited access 

endorsement as implemented in the 

final rule for Amendment 5 versus the