[Federal Register Volume 74, Number 129 (Wednesday, July 8, 2009)]
[Proposed Rules]
[Pages 32521-32528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16094]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 090130102-91070-01]
RIN 0648-AX59


International Fisheries; Western and Central Pacific Fisheries 
for Highly Migratory Species; Bigeye Tuna Catch Limits in Longline 
Fisheries in 2009, 2010, and 2011

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations under authority of the Western and 
Central Pacific Fisheries Convention Implementation Act (WCPFC 
Implementation Act) to establish a catch limit for bigeye tuna (Thunnus 
obesus) in the U.S. pelagic longline fisheries in the western and 
central Pacific Ocean for each of the years 2009, 2010, and 2011. Once 
the limit of 3,763 metric tons (mt) is reached in any of those years, 
retaining, transshipping, or landing bigeye tuna caught in the western 
and central Pacific Ocean would be prohibited for the remainder of the 
year, with certain exceptions. The limit would not apply to the 
longline fisheries of American Samoa, Guam, or the Commonwealth of the 
Northern Mariana Islands (CNMI). 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 August 7, 2009.

ADDRESSES: You may submit comments on this proposed rule, identified by 
0648-AX59, and the regulatory impact review (RIR) prepared for the 
proposed rule by any of the following methods:
    <bullet> Electronic submissions: Submit all electronic public 
comments via the Federal e-Rulemaking portal, at http://www.regulations.gov.
    <bullet> Mail: William L. Robinson, Regional Administrator, NMFS 
Pacific Islands Regional Office (PIRO), 1601 Kapiolani Blvd., Suite 
1110, Honolulu, HI 96814. Include the identifier ``0648-AX59'' 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 
the 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 the 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 is available at: http://www.wcpfc.int/convention.htm. 
The area of application of the Convention, or 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[deg] W. long. A map showing the boundaries of the Convention 
Area is available 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 has provisions 
related to non-target, associated, and dependent species in such 
fisheries.
    The Western and Central Pacific Fisheries Commission (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 Non-Member 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 American Samoa, the CNMI and Guam 
(affiliated with the United States). The Cooperating Non-Members 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 in 2007 and in doing so 
became a Contracting Party to the Convention and a Member of the WCPFC. 
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 WCPFC 
Implementation Act (16

[[Page 32522]]

U.S.C. 6901 et seq.), 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 Decision Regarding Bigeye Tuna in Longline Fisheries

    At its Fifth Regular Session, in December 2008, the WCPFC adopted 
Conservation and Management Measure (CMM) 2008-01 related to bigeye 
tuna and yellowfin tuna (Thunnus albacares) in the WCPO. The CMM, 
available with other decisions of the WCPFC at http://www.wcpfc.int/decisions.htm, places certain obligations on the WCPFC's Members, 
Participating Territories, and Cooperating Non-members (collectively, 
CCMs). With respect to bigeye tuna, the CMM is based in part on the 
finding by the WCPFC Scientific Committee that the stock of bigeye tuna 
in the WCPO is experiencing a fishing mortality rate greater than 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, CMM 2008-
01 has the stated objective of reducing, over the period 2009-2011, the 
fishing mortality rate for bigeye tuna in the WCPO by at least 30 
percent from a specified historical baseline. Among other provisions, 
the CMM establishes specific catch limits for bigeye tuna captured in 
CCMs' longline fisheries for the years 2009, 2010, and 2011. The limits 
do not apply to Participating Territories or small island developing 
States undertaking responsible development of their domestic fisheries. 
The limits are prescribed relative to catches made during specified 
baseline periods, which for the United States is 2004. For fleets of 
WCPFC Members with bigeye tuna catch baselines of less than 5,000 mt 
and that land exclusively fresh fish, the specified limit is the 
baseline level less 10 percent, and is the same for each of the years 
2009, 2010, and 2011.

Proposed Action

    This proposed rule would provide for the timely implementation of 
the annual catch limit for bigeye tuna established by the WCPFC for 
U.S. longline fisheries for each of the years 2009 through 2011. This 
proposed rule would not apply to the longline fisheries of American 
Samoa, Guam, or the CNMI, as described further below.
    The U.S. longline fisheries in the WCPO are generally regulated in 
accordance with the Fishery Management Plan for the Pelagic Fisheries 
of the Western Pacific Region (WP Pelagics FMP) developed by the 
Western Pacific Fishery Management Council (WPFMC) and the Fishery 
Management Plan for U.S. West Coast Fisheries for Highly Migratory 
Species (West Coast HMS FMP) developed by the Pacific Fishery 
Management Council (PFMC), pursuant to the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA; 16 U.S.C. 1801 et seq.). As 
stated above, the WCPFC Implementation Act authorizes the Secretary of 
Commerce, who has delegated that authority to NMFS, to promulgate such 
regulations as may be necessary to implement the decisions of the 
WCPFC. The regulations may, in cases where the Secretary of Commerce 
has discretion in implementing the decisions of the WCPFC and where the 
regulations would govern fisheries under the authority of a Regional 
Fishery Management Council, be developed in accordance with the 
procedures established by the MSA to the extent practicable within the 
implementation schedule of the WCPFC. Accordingly, the MSA process 
could potentially serve to implement certain provisions of CMM 2008-01 
that apply to the U.S. longline fisheries. The MSA process involves the 
development of management recommendations by the Regional Fishery 
Management Councils, which are then subject to the approval of, and 
implementation by, NMFS. The process also involves formal time periods 
for deliberation by the Councils and subsequent review, approval, and 
implementation by the Secretary of Commerce, through NMFS.
    To comply with the international obligations of the United States 
under the Convention, NMFS is issuing a proposed rule under the WCPFC 
Implementation Act pertaining to the U.S. longline fleets in the 
Pacific Ocean for the discrete and limited purpose of implementing the 
bigeye tuna catch limit. Based on the longline fleet's fishing patterns 
in recent years, the proposed limit could be reached or exceeded in the 
third quarter of 2009. The WPFMC may wish to evaluate and recommend 
additional management measures under the MSA process.
    The bigeye tuna limits established in CMM 2008-01 are termed 
``catch'' limits. However, the baseline amount of bigeye tuna specified 
for the United States in the CMM, from which the limit is derived, is 
from information provided to the WCPFC by the United States. That 
information is expressed in terms of bigeye tuna that are retained on 
board, not captured, per se. Accordingly, the proposed rule would 
establish a limit on retained catches (as a proxy for catches) of 
bigeye tuna. The limit would have the purpose of reducing fishing 
mortality of WCPO bigeye tuna.

Establishment of the Limit

    The annual limit for the United States would be established as the 
amount of bigeye tuna captured in the Convention Area by the Hawaii and 
west coast longline fleets in 2004 and retained on board, less 10 
percent. The amount captured and retained in 2004, which is specified 
in CMM 2008-01 based on information provided by the United States to 
the WCPFC, was 4,181 mt. Therefore, the annual limit would be 3,763 mt. 
In accordance with CMM 2008-01, the limit would not apply to the 
longline fisheries of American Samoa, Guam, or the CNMI. For the 
purpose of this proposed rule, the longline fisheries of these three 
Participating Territories would be distinguished from the other 
longline fisheries of the United States as described below.
    Under CMM 2008-01, the specified bigeye tuna catch limits do not 
apply to the fisheries of Participating Territories, including American 
Samoa, Guam, and the CNMI, provided that they are undertaking 
responsible development of their domestic fisheries. Because fisheries 
operated out of American Samoa, Guam, and the CNMI continue to be 
subject to U.S. fisheries laws and regulations, and since these 
Participating Territories generally do not exercise management 
authority over fishery resources found beyond their submerged lands, 
applying the longline bigeye tuna catch limit provisions of CMM 2008-01 
raises a number of challenging considerations. For the purpose of 
implementing the bigeye tuna catch limits of CMM 2008-01, NMFS proposes 
to distinguish the longline fisheries of the three Participating 
Territories from the other longline fisheries of the United States 
primarily based upon where the bigeye tuna are landed. That is, NMFS 
proposes to treat bigeye tuna landed in the three Participating 
Territories, with certain exceptions, as fish that are harvested in 
support of the development of their domestic fisheries. Assigning 
catches in this manner closely aligns with current practice.

[[Page 32523]]

    In reporting catches of longline-caught bigeye tuna to the WCPFC, 
NMFS' practice has been to attribute catches according to where the 
fish are landed. For example, fish that are landed in American Samoa 
are attributed to the American Samoa fisheries, and fish that are 
landed in Hawaii or on the U.S. west coast are attributed to the ``U.S. 
fisheries''. Under this proposed rule, NMFS would continue this 
practice, with some modifications. NMFS proposes that any bigeye tuna 
landed in one of the three Participating Territories that was caught by 
longline in the U.S. exclusive economic zone (EEZ) surrounding the 
Hawaiian Archipelago would be attributed to the ``U.S. fisheries'' and 
counted against the limit. As a general practice, tuna taken within the 
EEZ around Hawaii have been landed in Hawaii, and have acquired no 
direct or indirect connection to the fisheries of any of the three 
Participating Territories. Under these historic circumstances, treating 
bigeye tuna caught in the EEZ around Hawaii and landed in one of the 
three Participating Territories as being associated with the longline 
fisheries of that Participating Territory would potentially circumvent 
the conservation objectives of CMM 2008-01. However, bigeye tuna caught 
on the high seas of the Convention Area or within the EEZ surrounding 
the Participating Territories or the Pacific Island possessions, if 
landed in one of the three Participating Territories, would not be 
subject to the limit, provided that the fish are landed by a U.S. 
fishing vessel operated in compliance with one of the permits required 
under the regulations implementing the WP Pelagics FMP and the West 
Coast HMS FMP; specifically, a permit issued under 50 CFR 660.707 or 
665.21. NMFS finds these modifications to current practices necessary 
in order to ensure that this proposed rule and the fishing patterns 
that result from it are consistent with the objectives of CMM 2008-01.

Announcement of the Limit Being Reached

    Once NMFS determines in any of the years 2009, 2010, or 2011 that 
the limit is expected to be reached by a specific future date in that 
year, NMFS would publish a notice in the Federal Register announcing 
that specific restrictions will be effective on that specific future 
date until the end of the calendar year. NMFS would publish the notice 
at least seven calendar days before the effective date of the 
restrictions to provide fishermen advance notice of the restrictions. 
NMFS would also endeavor to make publicly available, such as on a web 
site, regularly updated estimates and/or projections of bigeye tuna 
catches in order to help fishermen plan for the possibility of the 
limit being reached.

Prohibited Activities Once the Limit is Reached

    Starting on the announced date and extending through the last day 
of that calendar year, it would be prohibited to use a U.S. fishing 
vessel to retain on board, transship, or land bigeye tuna captured in 
the Convention Area by longline gear, except any bigeye tuna already on 
board a fishing vessel upon the effective date of the restrictions may 
be retained on board, transshipped, and/or landed, provided that they 
are landed within 14 days after the restrictions become effective. In 
the case of a vessel that has declared to NMFS pursuant to 50 CFR 
665.23(a) that the current trip type is shallow-setting, the 14-day 
limit would be waived, but the number of bigeye tuna retained on board, 
transshipped, or landed must not exceed the number on board the vessel 
upon the effective date of the restrictions, as recorded by the NMFS 
observer on board the vessel. Furthermore, for the same reasons 
described above in establishing the proposed limit, bigeye tuna 
captured by longline gear may be retained on board, transshipped, and/
or landed if they are landed in American Samoa, Guam, or the CNMI, 
provided that they were not caught in the portion of the EEZ 
surrounding the Hawaiian Archipelago, and that they are landed by a 
U.S. fishing vessel operated in compliance with a valid permit issued 
under 50 CFR 660.707 or 665.21. Starting on the announced date and 
extending through the last day of that calendar year, it would also be 
prohibited to transship bigeye tuna caught in the Convention Area by 
longline gear to any vessel other than a U.S. fishing vessel operated 
in compliance with a valid permit issued under 50 CFR 660.707 or 
665.21.
    These restrictions would not apply to bigeye tuna caught by 
longline gear outside the Convention Area, such as in the eastern 
Pacific Ocean. However, to help ensure compliance with the restrictions 
related to bigeye tuna caught by longline gear in the Convention Area, 
there would be two additional, related, prohibitions that would be in 
effect starting on the announced date and extending through the last 
day of that calendar year. First, it would be prohibited to fish with 
longline gear both inside and outside the Convention Area during the 
same fishing trip, with the exception of a fishing trip that is in 
progress at the time the announced restrictions go into effect. In that 
exceptional case, the vessel, unless on a declared shallow-setting 
trip, would still be required to land any bigeye tuna taken within the 
Convention Area within 14 days of the effective date of the 
restrictions, as described above. Second, if a vessel is used to fish 
using longline gear outside the Convention Area and the vessel enters 
the Convention Area at any time during the same fishing trip, the 
longline gear on the fishing vessel would have to be stowed in a manner 
so as not to be readily available for fishing while the vessel is in 
the Convention Area.

Classification

    The NMFS Assistant Administrator has determined that this proposed 
rule is consistent with the WCPFC Implementation Act and other 
applicable laws, subject to further consideration after public comment.
    NMFS prepared an EA that analyzes the effects of the proposed rule 
on the human environment. In the EA, NMFS compared the effects of the 
proposed rule and three alternatives to the proposed rule, including 
the no-action or baseline alternative and two action alternatives. 
Overall, the expected impacts on bigeye tuna and other living marine 
resources from the proposed rule or either of the two action 
alternatives are expected to be generally beneficial, because they 
would implement a catch limit where one does not currently exist. One 
of the action alternatives would prohibit longline fishing once the 
limit is reached, rather than just prohibiting the retention, 
transshipment, and landing of bigeye tuna. The other action alternative 
would prohibit deep-set longline fishing once the limit is reached, 
allowing shallow-set longline fishing in the Convention Area to 
continue, provided that no bigeye tuna and no yellowfin tuna are 
retained, transshipped, or landed. Both of these alternatives would 
likely have slightly greater beneficial impacts than the proposed rule 
on bigeye tuna and other living marine resources in the WCPO, but like 
the proposed rule, both alternatives would have only minor impacts. The 
impacts on the human environment from the proposed rule would be minor 
for the following reasons: the duration of the rule would be limited to 
three years, so unless similar or more restrictive actions are taken in 
the future, conditions would likely rebound to conditions similar to 
those under the no-action or baseline alternative; and the proposed 
rule would likely not cause substantial changes to the fishing 
practices and

[[Page 32524]]

patterns of the affected fleets. However, other present and reasonably 
foreseeable future actions for the conservation and management of HMS 
could cause similar beneficial effects. Together with the effects of 
those actions, the cumulative impacts on the affected environment of 
the proposed action 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 purse seine 
vessels (which NMFS intends to do via a separate rulemaking) and 
implementation by other CCMs of the provisions of the CMM would enhance 
the beneficial impacts to bigeye 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 objective of the CMM). In addition, 
should the Inter-American Tropical Tuna Commission (IATTC) adopt catch 
limits or other fishery restrictions for bigeye tuna, any shift in 
fishing effort to the eastern Pacific Ocean (EPO) from the proposed 
rule would be reduced and the beneficial effects on bigeye tuna would 
be increased. The stock structure of bigeye tuna in the Pacific Ocean 
is not well known, but there is some degree of mixing between fish in 
the EPO and fish in the WCPO, so any fishing mortality in the EPO would 
likely affect the status of the stock in the WCPO. The economic impacts 
of the proposed rule are addressed in the EA only insofar as they are 
related to impacts to the biophysical environment. Economic impacts 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:
    The proposed rule would apply to owners and operators of U.S. 
vessels used for fishing using longline gear in the Convention Area, 
except those that are part of the longline fleets of American Samoa, 
Guam, and the CNMI. The total number of affected vessels is 
approximated by the number of vessels with Hawaii Longline Limited 
Access Permits (issued under 50 CFR 665.21). There are 164 such permits 
available. During the period 2006-2008 the number of vessels permitted 
ranged from 121 to 140. The number of vessels actually permitted as of 
February 2009 was 132. Owners and operators of U.S. longline vessels 
based on the U.S. west coast would also be affected by this proposed 
rule, but based on the inactivity of that fleet in the Convention Area 
since 2005, it is expected that very few, if any, such vessels would be 
affected. The Hawaii longline fleet targets bigeye tuna using deep 
sets, and during certain parts of the year, portions of the fleet 
target swordfish using shallow sets. In each of the years 2005 through 
2008, the estimated numbers of Hawaii longline vessels that fished were 
124, 127, 129, and 128, respectively. Of those vessels, the numbers 
that engaged in deep-setting were 124, 127, 129, and 127, and the 
numbers that engaged in shallow-setting were 31, 35, 27, and 24, 
respectively. The numbers that did both were 31, 35, 27, and 23, 
respectively. Most of the fleet's fishing effort has traditionally been 
in the Convention Area, but fishing has also taken place to the east of 
the Convention Area, as described further below. As an indication of 
the size of businesses in the fishery, average annual fleet-wide ex-
vessel revenues during 2005-2007 were about $60 million. Given the 
number of vessels active during that period (127, on average), this 
indicates an average of about $0.5 million in annual revenue per 
vessel. Therefore, NMFS has determined that all vessels in the fishery 
are small entities based on the Small Business Administration's 
definition of a small fish harvester (i.e., gross annual receipts of 
less than $4.0 million).
    The proposed rule would not establish any new reporting or 
recordkeeping requirements. The new compliance requirement would be for 
affected vessel owners and operators to cease retaining, landing, and 
transshipping bigeye tuna caught with longline gear in the Convention 
Area when the limit is reached in any of the years 2009, 2010, and 
2011, for the remainder of the calendar year (with the exceptions and 
provisos described at the beginning of this section in the preamble). 
Fulfillment of this requirement is not expected to require any 
professional skills that the vessel owners and operators do not already 
possess.
    Complying with the proposed rule could cause foregone fishing 
opportunities and associated economic losses in the event that the 
bigeye tuna limit is reached and the restrictions on retaining, 
landing, and transshipping bigeye tuna are imposed. These costs cannot 
be projected with any quantitative certainty. For the purpose of 
projecting baseline conditions under no action, this analysis relies on 
fishery performance from 2005 through 2008, since prior to 2005 the 
regulatory environment underwent major changes (the swordfish-directed 
shallow-set longline fishery was closed in 2001 and reopened in 2004 
with limits on fishing effort and turtle interactions). Bigeye tuna 
catches (here and in the remainder of this IRFA, ``catches'' means fish 
that are caught and retained on board) from 2005 through 2008 suggest 
that there is a high likelihood of the proposed limit being reached in 
any of the years during which the limit would be in effect (2009, 2010, 
and 2011). The proposed limit, by prescription, is 10 percent less than 
the amount caught in the Convention Area in 2004. The proposed limit of 
3,763 mt is less than the amount caught in any of the years 2005-2008, 
and it is 20 percent less than the annual average amount caught in that 
period. Furthermore, there has been an upward trend in annual bigeye 
tuna catches in the years 2005 through 2008.
    If the bigeye tuna limit is reached in a given year, it can be 
expected that affected vessels would shift to the next most profitable 
fishing opportunity (which might be not fishing at all). Revenues from 
that alternative activity reflect the opportunity costs associated with 
longline fishing for bigeye tuna in the Convention Area. Therefore, the 
economic cost of the proposed rule is assumed to be less than the 
nominal losses incurred by the bigeye tuna limit and associated 
restrictions.
    Upper bounds on potential economic costs can be estimated by 
examining the projected value of longline landings from the Convention 
Area that would not be made as a result of reaching the limit. Two no-
action scenarios are used for the purpose of this analysis. In the more 
conservative scenario, it is assumed that fishing patterns in 2009-2011 
would not depart from recent patterns; specifically, annual catches in 
2009-2011 would be equal to the averages observed during 2005-2008. In 
the less conservative no-action scenario, it is assumed that the 
increasing trend in bigeye tuna catches in 2005-2008 would continue in 
2009-2011 (there may be factors that inhibit continuation of the trend, 
such as the limit on vessel numbers, or the possibility of the size of 
the exploitable stock decreasing; nonetheless, continuation of the 
trend appears to be plausible). Average annual catches of bigeye tuna 
from the longline

[[Page 32525]]

fishery in the Convention Area in 2005-2008, as estimated by NMFS based 
on numbers of fish caught by date of capture from vessel logbook data, 
and average fish weights derived from landings data, were 4,712 mt. The 
upward trend in bigeye tuna catches in 2005-2008 (for the entire 
fishery, not limited to catches in the Convention Area), was an average 
annual increase of about 8 percent. If this rate continued, catches of 
bigeye tuna from the Convention Area in 2009, 2010, and 2011 would be 
about 5,300, 5,700, and 6,200 mt, respectively. Thus, with respect to 
the first no-action scenario, imposition of a catch limit of 3,763 mt 
would be expected to result in 20 percent less bigeye tuna being caught 
in 2009-2011 than under no action. With respect to the second no-action 
scenario, the limit would be expected to result in 29, 34, and 39 
percent less bigeye tuna being caught in 2009, 2010, and 2011, 
respectively, than under no action (and over the entire 2009-2011 
period, 34 percent less). In the deep-set fishery, catches of 
marketable species other than bigeye tuna would likely be affected in a 
similar way. After the limit is reached and landings are restricted, 
prices of bigeye tuna (e.g., that are caught in the EPO), as well as of 
other species landed by the fleet, could increase and thereby mitigate 
(to the extent vessels continue to fish and make landings) economic 
losses. Assuming no effects on prices, over the years 2009-2011, 
revenues to entities that participate exclusively in the deep-set 
fishery under the proposed rule would be, under the first no-action 
scenario, about 20 percent less than under no action, and under the 
second no-action scenario, about 34 percent less. If, under the more 
conservative no-action scenario, average annual ex-vessel revenues 
during 2005-2007 (about $0.5 million per vessel) are a good indicator 
of future revenues under no action, average per-vessel annual revenues 
under the proposed rule would be about $0.1 million less than under no 
action. Under the less conservative no-action scenario, if ex-vessel 
revenues under no action were to increase in proportion to bigeye tuna 
catches (8 percent annually), average per-vessel annual revenues under 
the proposed rule would be about $0.2 million less than under no 
action. Again, these estimates are for the purpose of estimating upper 
bounds on potential economic losses and do not account for revenues 
from alternative activities, some of which are discussed further below.
    Impacts on profits would be less than impacts on revenues, because 
operating costs would be lower if a vessel ceases fishing after the 
catch limit is reached. Variable costs can be expected to be affected 
roughly in proportion to revenues, as both would stop accruing once a 
vessel stops fishing. But operating costs also include fixed costs, 
which are borne regardless of whether or not a vessel is used to fish. 
Thus, profits would be dampened proportionately more than revenues.
    In addition to leading to lost revenues due to landing less fish, a 
prohibition on landing bigeye tuna could cause a decrease in ex-vessel 
prices paid for bigeye tuna and other products landed by affected 
entities. An interruption in supply of bigeye tuna and other species 
from the Hawaii longline fleet could result in the Hawaii market 
shifting to alternative sources of bigeye tuna. If such a shift were 
temporary; that is, limited to the duration of the prohibition on 
bigeye tuna landings, which would likely be a matter of weeks or 
months, then prices (once the prohibition is lifted) would probably not 
be affected. If, on the other hand, it leads to a more permanent change 
in the market (e.g., as a result of buyers wanting to mitigate the 
uncertainty in the continuity of supply from the Hawaii longline 
fishery), then locally caught bigeye tuna could face stiffer 
competition with bigeye tuna sourced elsewhere and consequently be 
subject to less demand (volume) and fetch lower prices than it would 
under the no-action scenario. In that event, revenues earned by 
affected entities would be impacted accordingly. It is not possible to 
predict the likelihood of this occurring or predict the magnitude of 
the economic effects.
    As stated previously, actual compliance costs for a given entity 
might be less than the upper bounds described above because ceasing 
fishing would not necessarily be the most profitable opportunity in the 
event of the catch limit being reached. Alternative opportunities that 
would appear to be relatively attractive to affected entities include: 
(1) deep-set longline fishing for bigeye tuna and other species to the 
east of 150 W. long. boundary line of the Convention Area (the EPO), 
where there is currently no limit on bigeye tuna catches; (2) shallow-
set longline fishing for swordfish in the Convention Area or the EPO; 
and (3) deep-set longline fishing in the Convention Area for species 
other than bigeye tuna. A fourth opportunity is also identified, but 
because its economic viability appears marginal at this time, it is 
discussed only briefly. This is deep-set longline fishing for bigeye 
tuna in the Convention Area and landing the bigeye tuna in American 
Samoa, Guam, or the CNMI (instead of Hawaii, the traditional landing 
point and main market). This would be permissible provided that the 
bigeye tuna were not caught in the portion of the EEZ around the 
Hawaiian Islands and they are landed by a U.S. vessel operated in 
compliance with a permit issued under the WP Pelagics FMP or the West 
Coast HMS FMP.
    Before examining each of these potential opportunities in detail, 
it is important to note that under the proposed rule, it would be 
prohibited to fish with longline gear both inside and outside the 
Convention Area during the same trip (with the exception of a fishing 
trip that is in progress when the limit is reached and the restrictions 
go into effect). For example, after the restrictions go into effect, 
during a given fishing trip, a vessel could be used for longline 
fishing for bigeye tuna in the EPO or longline fishing for species 
other than bigeye tuna in the Convention Area, but not both. This 
reduced operational flexibility would bring costs, since it would 
constrain the potential profits from alternative opportunities 
collectively. Those costs cannot be quantified.
    (1) With respect to deep-set fishing in the EPO, the proportion of 
the fishery's annual bigeye tuna catches that were captured in the EPO 
from 2005 through 2008 ranged from 2 percent to 22 percent, and 
averaged 11 percent. In 2005-2007, that proportion, which ranged from 2 
percent to 11 percent, may have been constrained by the bigeye tuna 
catch limits established by NMFS to implement the decisions of the 
IATTC, the counterpart of the WCPFC in the EPO. By far most of the U.S. 
annual EPO bigeye tuna catch has typically been made in the second and 
third quarters of the year: in the period 2005-2008 the percentages 
caught in the first, second, third, and fourth quarters were 9, 25, 62, 
and 4 percent, respectively. These two historical patterns that 
relatively little of the bigeye tuna catch in the longline fishery has 
typically been made in the EPO (2-22 percent in 2005-2008) and that 
most EPO bigeye tuna catches have been made in the second and third 
quarters, with relatively few catches in the fourth quarter, when the 
catch limit would most likely be reached, suggest it would be 
relatively costly for at least some affected entities to shift to deep-
set fishing in the EPO in the event of the limit being reached in the 
Convention Area. Furthermore, if the IATTC adopts bigeye tuna catch 
limits for the EPO for any of the years 2009-2011, the ability of 
business entities affected by this

[[Page 32526]]

proposed rule to shift fishing effort to the EPO would, of course, be 
constrained accordingly.
     (2) With respect to the opportunity of shallow-set longline 
fishing for swordfish, entities that already engage in this component 
of the fishery and that would do so under the no-action scenario would 
bear little cost in the event of the limit being reached. The cost 
would be approximately equal to the revenues lost from not being able 
to retain or land bigeye tuna captured while shallow-setting in the 
Convention Area, or the cost, taking into account opportunity costs, of 
shifting to shallow-setting in the EPO, whichever is less. In the 
fourth quarters of 2005-2008, almost all shallow-setting effort took 
place in the EPO, and 96 percent of bigeye tuna catches were made 
there, so the opportunity cost would appear to be very little. During 
2005-2008, the shallow-set fishery caught an annual average of 55 mt of 
bigeye tuna from the Convention Area. If the bigeye tuna catch limit is 
reached on September 30 (or even as early as July 31) in a given year, 
the WCPO shallow-set fishery at that point would be, on average, based 
on 2005-2008 data, 99 percent through its average annual bigeye tuna 
catches. Thus, imposition of the landings prohibition on September 30 
could result in the loss of revenues from approximately 0.6 mt (1 
percent of 55 mt) of bigeye tuna, which, based on recent ex-vessel 
prices, would be worth about $5,000. Expecting about 29 vessels to 
engage in the shallow-set fishery (the annual average in 2005-2008), 
the average value of those potentially lost annual revenues would be 
about $170 per vessel. These potential impacts are relatively small, 
but one additional effect could lead to greater costs to entities that 
engage in the shallow-set fishery.
    Entities that have not historically participated in the shallow-set 
fishery would, in the event of the limit being reached, have a greater 
incentive to engage in shallow-setting than they otherwise would, so 
participation in the shallow-set fishery could be greater as a result 
of the catch limit being reached. Participation and fishing effort 
would be constrained, however, by the existing annual limits on the 
number of sets that may be made (2,120) and on the number of 
interactions that may occur with loggerhead (17) and leatherback (16) 
turtles. In the four full years that these limits have been in place, 
the fishery has been closed once (2006) as a result of reaching one of 
the turtle interaction limits. In the remaining three years (2005, 
2007, and 2008), 76 percent, 76 percent, and 77 percent, respectively, 
of the 2,120-set limit on fishing effort was used. To the extent that 
participation and fishing effort in the shallow-set fishery are greater 
as a result of this proposed rule, traditional participants would bear 
costs associated with the greater competition for the available fishing 
effort. Those costs cannot be projected, but they are likely to be 
reflected in the price of shallow-set certificates, which each year are 
distributed free of charge and in equal shares to all holders of Hawaii 
Longline Limited Access Permits and subsequently traded among fishery 
participants. Increased competition in the shallow-set fishery could 
also lead lower prices for swordfish as a result of greater supply, and 
consequently lower returns to entities engaged in the shallow-set 
fishery. The costs could also be reflected in a higher likelihood of 
the turtle interaction limits being reached and the shallow-set fishery 
being closed (at all or earlier in the year than it otherwise would). 
It should be noted that the WPFMC has recommended that the shallow-set 
effort limit be removed and that the loggerhead interaction limit be 
increased. NMFS, which is responsible for approving and implementing 
(in this case, via rulemaking) recommendations of the WPFMC, has not 
yet acted on the WPFMC recommendations. If the recommendations are 
approved and implemented, there would be more potential for fishing 
effort to shift to the shallow-set fishery.
    (3) The opportunity of deep-setting in the Convention Area for 
species other than bigeye tuna would seem, based on the lack of such 
fishing activity in the past, to be the least attractive and costliest 
of the three alternative opportunities examined here. Nonetheless, it 
is possible that affected entities could find it economically viable to 
place greater emphasis on targeting yellowfin tuna, albacore and other 
species that have in the past contributed relatively little to ex-
vessel revenues in the fishery. Next to bigeye tuna, yellowfin tuna has 
been the most valuable species in the deep-set fishery, but the catch 
per unit of effort (CPUE) for yellowfin tuna has been considerably less 
than for bigeye tuna. The average annual CPUE for yellowfin tuna during 
2005-2007 was 0.84 fish per 1,000 hooks, as compared to 3.73 fish per 
1,000 hooks for bigeye tuna. Thus, unless fishing methods can be 
adjusted in ways to substantially increase catch rates (and/or weights) 
of species other than bigeye tuna, revenues per unit of effort would be 
substantially less during a bigeye tuna landings prohibition period. 
The extent to which such adjustments could be made is not known. Even 
if deep-set fishing is not an economically attractive opportunity 
without the ability to land bigeye tuna, it might be worthwhile for 
trips during which the limit is reached. In other words, after bigeye 
tuna restrictions become effective, it would allow vessels at sea to 
continue fishing to top off their holds with species other than bigeye 
tuna and thereby have the potential to lessen the adverse impacts of 
the restrictions.
    Finally, with respect to deep-set longline fishing for bigeye tuna 
in the Convention Area and landing the fish in American Samoa, Guam, or 
the CNMI, there are three potentially critical constraints to this 
opportunity. First, whether the fish are landed by the vessel that 
caught the fish or by a vessel to which the fish were transshipped, the 
costs of a vessel steaming from the traditional fishing grounds in the 
vicinity of Hawaii to one of the territories would be substantial. 
Second, none of these three locales has large markets to absorb 
additional fresh sashimi-grade bigeye tuna. Third, transporting the 
bigeye tuna from these locales to larger markets, such as in Hawaii or 
Japan, would bring substantial costs. These cost constraints suggest 
that this opportunity has little potential to mitigate the economic 
impacts of the proposed rule on affected small entities.
    The potential economic effects identified above would vary among 
individual business entities, but it is not possible to predict the 
range of variation.
    All affected entities are believed to be small entities, so small 
entities would not be disproportionately affected relative to large 
entities.
    NMFS has not identified any Federal rules that duplicate, overlap 
or conflict with the proposed rule.
    NMFS has identified two alternatives to the proposed rule (in 
addition to the no-action alternative). One would prohibit longline 
fishing in the Convention Area once the limit is reached, rather than 
just prohibiting the retention, landing, and transshipment of bigeye 
tuna caught by longline in the Convention Area. The other alternative 
would prohibit deep-set longline fishing once the limit is reached, 
allowing shallow-set longline fishing in the Convention Area to 
continue, provided that no bigeye tuna and no yellowfin tuna are 
retained, landed, or transshipped. Both alternatives would result in 
greater economic impacts, relative to those of the proposed rule, on 
small entities, as they would narrow the

[[Page 32527]]

available opportunities in the event the catch limit is reached. NMFS 
prefers the proposed action over the two action alternatives because it 
would result in lesser adverse economic impacts. NMFS also considered 
the no-action alternative. Among all the alternatives, no action would 
have the least adverse economic impacts on affected entities in the 
short term, but NMFS has determined that it would fail to accomplish 
the objectives of the WCPFC Implementation Act, including satisfying 
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: July 1, 2009.
John Oliver,
Deputy Assistant Administrator For Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 300, subpart 
O, which was proposed to be added on May 22, 2009 (74 FR 23965) and was 
proposed to be further amended on June 1, 2009 (74 FR 26160), 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 Sec.  300.211, definitions of ``Fishing trip'', ``Hawaiian 
Archipelago'' and ``Longline gear'' are added, in alphabetical order, 
to read as follows:


Sec.  300.211  Definitions.

* * * * *
    Fishing trip means a period of time during which a fishing vessel 
is used for fishing, beginning when the vessel leaves port and ending 
when the vessel lands fish.
* * * * *
    Hawaiian Archipelago means the Main and Northwestern Hawaiian 
Islands, including Midway Atoll.
* * * * *
    Longline gear means a type of fishing gear consisting of a main 
line that exceeds 1 nautical mile in length, is suspended horizontally 
in the water column either anchored, floating, or attached to a vessel, 
and from which branch or dropper lines with hooks are attached; except 
that, within the protected species zone, longline gear means a type of 
fishing gear consisting of a main line of any length that is suspended 
horizontally in the water column either anchored, floating, or attached 
to a vessel, and from which branch or dropper lines with hooks are 
attached, where ``protected species zone'' is used as defined at Sec.  
665.12 of this title.
* * * * *
    3. In Sec.  300.222, paragraphs (bb), (cc) and (dd) are added to 
read as follows:


Sec.  300.222  Prohibitions.

* * * * *
    (bb) Use a fishing vessel to retain on board, transship, or land 
bigeye tuna captured by longline gear in the Convention Area or to fish 
in contravention of Sec.  300.224(d)(1) or (d)(2).
    (cc) Use a fishing vessel to fish in the Pacific Ocean using 
longline gear both inside and outside the Convention Area on the same 
fishing trip in contravention of Sec.  300.224(d)(3).
    (dd) Fail to stow longline gear as required in Sec.  300.224(d)(4).
    4. A new Sec.  300.224 is added to read as follows:


Sec.  300.224  Longline fishing restrictions.

    (a) For each of the years 2009, 2010, and 2011, there is a limit of 
3,763 metric tons of bigeye tuna that may be captured by longline gear 
in the Convention Area by fishing vessels of the United States during 
the calendar year and retained on board.
    (b) Bigeye tuna landed in American Samoa, Guam, or the Commonwealth 
of the Northern Mariana Islands will not be counted against the limits 
established under paragraph (a) of this section, provided that:
    (1) The bigeye tuna were not caught in the portion of the exclusive 
economic zone surrounding the Hawaiian Archipelago; and
    (2) The bigeye tuna were landed by a fishing vessel operated in 
compliance with a valid permit issued under Sec.  660.707 or Sec.  
665.21 of this title.
    (c) NMFS will monitor retained catches of bigeye tuna with respect 
to the limit established under paragraph (a) of this section in each of 
the calendar years using data submitted in logbooks and other available 
information. After NMFS determines that the limit in any of the 
applicable years is expected to be reached by a specific future date, 
and at least seven calendar days in advance of that specific future 
date, NMFS will publish a notice in the Federal Register announcing 
that specific prohibitions will be in effect starting on that specific 
future date and ending at the end of the calendar year.
    (d) Once an announcement is made pursuant to paragraph (c) of this 
section, the following restrictions will apply during the period 
specified in the announcement:
    (1) A fishing vessel of the United States may not be used to retain 
on board, transship, or land bigeye tuna captured by longline gear in 
the Convention Area, except as follows:
    (i) Any bigeye tuna already on board a fishing vessel upon the 
effective date of the prohibitions may be retained on board, 
transshipped, and/or landed, to the extent authorized by applicable 
laws and regulations, provided that they are landed within 14 days 
after the prohibitions become effective. In the case of a vessel that 
has declared to NMFS, pursuant to Sec.  665.23(a) of this title, that 
the current trip type is shallow-setting, the 14-day limit is waived, 
but the number of bigeye tuna retained on board, transshipped, or 
landed must not exceed the number on board the vessel upon the 
effective date of the prohibitions, as recorded by the NMFS observer on 
board the vessel.
    (ii) Bigeye tuna captured by longline gear may be retained on 
board, transshipped, and/or landed if they are landed in American 
Samoa, Guam, or the Commonwealth of the Northern Mariana Islands, 
provided that:
    (A) The bigeye tuna were not caught in the portion of the exclusive 
economic zone surrounding the Hawaiian Archipelago;
    (B) Such retention, transshipment, and/or landing is in compliance 
with applicable laws and regulations; and
    (C) The bigeye tuna are landed by a fishing vessel operated in 
compliance with a valid permit issued under Sec.  660.707 or Sec.  
665.21 of this title.
    (2) Bigeye tuna caught by longline gear in the Convention Area may 
not be transshipped to a fishing vessel unless that fishing vessel is 
operated in compliance with a valid permit issued under Sec.  660.707 
or Sec.  665.21 of this title.
    (3) A fishing vessel of the United States may not be used to fish 
in the Pacific Ocean using longline gear both inside and outside the 
Convention Area during the same fishing trip, with the exception of a 
fishing trip during which the prohibitions were put into effect as 
announced under paragraph (c) of this section, in which case the 
provisions of paragraphs (d)(1)(i) and (d)(1)(ii) of this section still 
apply.
    (4) If a fishing vessel of the United States is used to fish in the 
Pacific Ocean using longline gear outside the Convention Area and the 
vessel enters

[[Page 32528]]

the Convention Area at any time during the same fishing trip, the 
longline gear on the fishing vessel must, while in the Convention Area, 
be stowed in a manner so as not to be readily available for fishing; 
specifically, the hooks, branch or dropper lines, and floats used to 
buoy the mainline must be stowed and not available for immediate use, 
and any power-operated mainline hauler on deck must be covered in such 
a manner that it is not readily available for use.
[FR Doc. E9-16094 Filed 7-7-09; 8:45 am]
BILLING CODE 3510-22-S