[Federal Register Volume 74, Number 103 (Monday, June 1, 2009)]
[Proposed Rules]
[Pages 26160-26170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12646]



[[Page 26160]]

-----------------------------------------------------------------------

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 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 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 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 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

[[Page 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 Non-
members (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

[[Page 26162]]

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.

[[Page 26163]]

[GRAPHIC] [TIFF OMITTED] TP01JN09.000

(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 
WCPFC-approved 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 No-Action 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

[[Page 26164]]

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

[[Page 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., FAD-fishing, 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

[[Page 26166]]

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 observed-sea-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 per-vessel 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.

[[Page 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 Sec.  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:


Sec.  300.211  Definitions.

* * * * *
    Effort Limit Area for Purse Seine, or ELAPS, means, within the area 
between 20[deg] N. latitude and 20[deg] 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 Sec.  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 Sec.  300.223 is added to read as follows:


Sec.  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.

[[Page 26168]]

    (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[deg] N. latitude and 134[deg] E. longitude; 7[deg] N. 
latitude and 153[deg] E. longitude; 0[deg] latitude and 153[deg] E. 
longitude; and 0[deg] latitude and 134[deg] E. longitude.
    (ii) Area B: 4[deg] N. latitude and 156[deg] E. longitude; 4[deg] 
N. latitude and 176[deg] E. longitude; 12[deg] S. latitude and 176[deg] 
E. longitude; and 12[deg] S. latitude and 156[deg] 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[deg] N. latitude and 20[deg] 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[deg] N. latitude and 20[deg] 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 Sec.  300.215(c).
    (4) Meeting any of the conditions in paragraphs (e)(1)(i), 
(e)(1)(ii), (e)(1)(iii),

[[Page 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 Sec.  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 water-soaked 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 Sec.  300.222, paragraphs (v) through (aa) are added to read 
as follows:

[[Page 26170]]

Sec.  300.222  Prohibitions.

* * * * *
    (v) Use a fishing vessel equipped with purse seine gear to fish in 
the ELAPS while the fishery is closed under Sec.  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 Sec.  300.223(b).
    (x) Use a fishing vessel equipped with purse seine gear to fish in 
an area closed under Sec.  300.223(c).
    (y) Discard fish at sea in the ELAPS in contravention of Sec.  
300.223(d).
    (z) Fail to carry an observer as required in Sec.  300.223(e).
    (aa) Fail to comply with the sea turtle mitigation gear and 
handling requirements of Sec.  300.223(f).
[FR Doc. E9-12646 Filed 5-29-09; 8:45 am]
BILLING CODE 3510-22-S