[Federal Register Volume 74, Number 148 (Tuesday, August 4, 2009)]
[Rules and Regulations]
[Pages 38544-38558]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18583]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 090130104-91027-02]
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: Final rule.

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SUMMARY: NMFS issues regulations under authority of the Western and 
Central Pacific Fisheries Convention Implementation Act (WCPFC 
Implementation 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). The regulations include limits on the 
number of days that may be fished, periods during which fishing may not 
be done on schools in association with fish aggregating devices (FADs), 
areas of high seas closed to fishing, requirements to retain tuna on 
board up to the first point of landing or transshipment, requirements 
to carry observers, and requirements to handle sea turtles in a 
specified manner. 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: The rule is effective August 3, 2009, except for the amendments 
to Sec. Sec.  300.222(aa) and 300.223(f), which are effective October 
5, 2009.

ADDRESSES: Copies of supporting documents that were prepared for this 
final rule, including the regulatory impact review (RIR) and 
environmental assessment (EA), as well as the proposed rule, are 
available via the Federal e-Rulemaking portal, at http://www.regulations.gov. Those documents, and the small entity compliance 
guide prepared for this final rule, are also available from the 
Regional Administrator, NMFS, Pacific Islands Regional Office, 1601 
Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-4700. The initial 
regulatory flexibility analysis (IRFA) and final regulatory flexibility 
analysis (FRFA) prepared for this rule are included in the proposed 
rule and this final rule, respectively.

FOR FURTHER INFORMATION CONTACT: Tom Graham, NMFS PIRO, 808-944-2219.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This final rule is also accessible at http://www.gpoaccess.gov/fr.

Background

    On June 1, 2009, NMFS published a proposed rule in the Federal 
Register (74 FR 26160) that would revise regulations at 50 CFR part 
300, subpart O, in order to implement certain decisions of the WCPFC. 
The proposed rule was open to public comment through June 22, 2009.
    This final rule is implemented under authority of the WCPFC 
Implementation Act (16 U.S.C. 6901 et seq.), which 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 
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.
    The objective of this final rule is to implement, with respect to 
U.S. purse seine vessels, two Conservation and Management Measures 
(CMM) adopted by the WCPFC in December 2008, at its Fifth Regular 
Annual Session. The first is CMM 2008-01, ``Conservation and Management 
Measure for Bigeye and Yellowfin Tuna in the Western and Central 
Pacific Ocean'' The second is CMM 2008-03, ``Conservation and 
Management of Sea Turtles.''
    The proposed rule includes further background information, 
including information on the Convention and the WCPFC, the 
international obligations of the United States under the Convention, 
the provisions of CMM 2008-01 and CMM 2008-03 as they relate to purse 
seine vessels, and the basis for the proposed regulations.

New Requirements

    This final rule establishes the following requirements:

(1) Fishing Effort Limits

    Limits are established for 2009 through 2011 on the number of 
fishing days 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. First, 
there is a limit of 7,764 fishing days for the entire three-year 2009-
2011 period. Second, there is a limit of 6,470 fishing days for each of 
the two-year periods 2009-2010 and 2010-2011. Third, there is a limit 
of 3,882 fishing days for each of the one-year periods 2009, 2010, and 
2011. Once NMFS determines during any of these 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 will 
issue a notice in the Federal Register 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 until 
the end of the applicable time period. Upon closure of the fishery, it 
will 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, 
effective until the end of the applicable time period. NMFS will 
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

    During specified periods in each of the years 2009, 2010, and 2011 
it will be prohibited to set purse seines around FADs, deploy FADs, or 
service FADs or their associated electronic equipment in the Convention 
Area. It will 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

[[Page 38545]]

an area into which fish were drawn by a vessel from the vicinity of a 
FAD. FADs are defined to include both artificial and natural floating 
objects that are capable of aggregating fish. In 2009, the FAD 
prohibition period will be August 1 through September 30. In each of 
2010 and 2011, it will be July 1 through September 30.

(3) High Seas Area Closures

    Two areas will be closed to fishing by U.S. purse seine vessels 
from January 1, 2010, through December 31, 2011. The areas are 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, as appropriate, the closed areas that 
are established in this final rule.
    Figure 1. 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 will be closed to purse seine fishing from 
January 1, 2010, through December 31, 2011, are all high seas areas (in 
white) within the two rectangles bounded by the bold black lines. The 
coordinates of the two rectangles are set forth in the regulation. This 
map displays indicative maritime boundaries only.
[GRAPHIC] [TIFF OMITTED] TR04AU09.119

(4) Catch Retention

    It will be prohibited to discard any bigeye tuna (Thunnus obesus), 
yellowfin tuna (Thunnus albacares), or skipjack tuna (Katsuwonus 
pelamis) from a U.S. purse seine vessel at sea within the Convention 
Area. Exceptions are 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 requirement will become 
effective no earlier than January 1, 2010, and only upon NMFS' 
determination that an adequate number of WCPFC-approved observers is 
available for the purse seine vessels of all WCPFC members as necessary 
to ensure compliance by such vessels with the catch retention 
requirement. Once it makes that determination, NMFS will announce the 
effective date of the requirement in a notice published in the Federal 
Register. The requirement will then remain in effect through December 
31, 2011.

(5) Observer Coverage

    U.S. purse seine vessels must carry observers deployed as part of 
the WCPFC Regional Observer Programme (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 will also be required, from 
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 will 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 under the 
jurisdiction of any other single nation. They also will not apply in 
cases where NMFS has

[[Page 38546]]

determined that an observer is not available.

(6) Sea Turtle Interaction Mitigation

    U.S. purse seine vessels operating in the Convention Area must 
carry specific equipment and specific measures must be used on such 
vessels to disentangle, handle, and release sea turtles that are 
encountered in fishing gear, including purse seines and FADs. The 
required equipment is a dip net or turtle hoist that meets specified 
minimum design standards. The required measures are: 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 the other elements of the final rule, these requirements are 
effective indefinitely.

Responses to Comments

    Comment 1: It is vital to the survival of the U.S. purse seine 
fleet that the United States negotiate measures in regional fisheries 
management organizations (RFMO) that impose a comparable burden on all 
participants in the fishery, and that U.S. fishermen do not bear an 
unfair amount of the conservation burden. Furthermore, it is critical 
to the survival of the U.S. purse seine fleet that domestic regulations 
implementing RFMO measures not be significantly more burdensome on the 
U.S. fleet than those imposed on the fleet's foreign competitors. Also, 
it is the responsibility of the U.S. government to ensure that other 
governments implement substantially similar rules and regulations, and 
the U.S. government should promptly give notice to the appropriate RFMO 
of any shortcomings in the regulations and enforcement by other member 
countries of the RFMO.
    Response: This comment does not pertain to the proposed rule 
itself. NMFS, as part of U.S. delegations to the WCPFC and other RFMOs, 
shares the view that all participants in affected fisheries should 
share comparable burdens when seeking to achieve conservation and 
management objectives, and NMFS applies this principle in its role as 
part of U.S. delegations to the WCPFC and other RFMOs. As part of such 
U.S. delegations, NMFS routinely endeavors to determine whether all 
RFMO members are satisfying their obligations to implement the 
decisions of the RFMOs, and to alert the RFMOs, as appropriate, about 
any shortcomings in such implementation.
    Comment 2: With respect to the proposed limits on fishing days, 
reports advising of the number of fishing days used to date should be 
issued on a monthly basis in order to assist vessels in planning their 
operations.
    Response: NMFS recognizes the value of providing such information 
to affected fishing operations and will endeavor to provide it to the 
extent possible. NMFS intends to make periodic estimates and/or 
projections of the number of fishing days used and to make them 
publicly available in as timely a manner as possible. Exactly what 
information will be provided, how often it will be updated, when it 
will be provided, and how it will be disseminated to the public cannot 
be determined at this time.
    Comment 3: The regulations should be clarified to say that upon the 
proposed August 1, 2009, start date of the FAD prohibition period, a 
purse seine vessel would be permitted to transit to port without an 
observer on board, provided that no fishing takes place during such 
transit.
    Response: The proposed rule is consistent with the commenter's 
view. Under the proposed rule, it would be prohibited to use a U.S. 
vessel equipped with purse seine gear to ``fish'' in the Convention 
Area without an observer on board (with certain exemptions, not 
relevant to this comment). Under the proposed rule, ``fishing'' is 
defined to include searching for, catching, taking, or harvesting fish, 
as well as a number of other specific activities, but it does not 
include merely transiting or being at sea.
    Comment 4: The activities related to fishing in association with 
FADs that would be prohibited during the FAD prohibition periods should 
be qualified to include the word ``intentionally''; for example, it 
should not be prohibited to set a purse seine on a floating object if 
it is not done intentionally, such as if the object was submerged and 
not seen when the set is made.
    Response: NMFS does not agree. In order to ensure that fishing on 
schools in association with FADs does not occur, it is necessary, for 
enforcement and compliance purposes, to prohibit all fishing in 
association with FADs. Even with the presence of an observer on board 
the vessel, requiring a determination of the intent behind the fishing 
vessel's activities would undermine the rule's effectiveness and 
unnecessarily complicate enforcement. However, the rule is aimed at 
ensuring that vessels do not fish on schools associated with FADs; 
therefore, factors beyond the control of the vessel will, as always, be 
taken into consideration in the enforcement of this regulation.
    Comment 5: During a FAD prohibition period, the following 
activities should not be prohibited: (1) in situations in which there 
are no FADs in the area of the fishing vessel, capturing a school of 
tuna that has aggregated under the fishing vessel; (2) capturing fish 
that are in the vicinity of a floating object but not associated with 
the object; and (3) removing a FAD from the water and securing it on 
the deck, provided that no servicing of the FAD takes place.
    Response: Regarding activity (1), the commenter's view is 
consistent with the intent of the proposed rule; however, NMFS will 
revise the final rule to clarify that the meaning of a FAD does not 
include the purse seine vessel itself. Having said that, it is 
important to note that under the proposed rule it would be prohibited 
during a FAD prohibition period to set a purse seine in an area into 
which fish were drawn by a vessel from the vicinity of a FAD. Regarding 
activity (2), NMFS does not agree. Although fish may indeed be found in 
the vicinity of a FAD but not necessarily associated with it, NMFS 
finds that in order to ensure that fishing on schools in association 
with FADs does not occur, it is necessary to also prohibit fishing on 
schools that are merely in the vicinity of FADs. Under the proposed 
rule, this would be accomplished by prohibiting setting a purse seine 
within one nautical mile of a FAD. Regarding activity (3), the 
commenter's view is consistent with the intent of the proposed rule; 
however, NMFS will revise the final rule to clarify that during a FAD 
prohibition period it will not be prohibited to remove a FAD from the 
water, provided that it is not returned to the water.
    Comment 6: Regarding the areas of high seas that would be closed to 
purse seine fishing in 2010 and 2011, consideration should be given to 
using MarZone, which is a geodetic software program specifically 
designed and developed to implement all provisions relating to the 
determination of maritime boundaries as set out in relevant articles of 
the United Nations Law of the Sea. The enforcement agencies of WCPFC 
member countries, including those of the United States, and vessel 
operators could best meet their responsibilities with the use of an 
accurate system, and the same system for mapping coordinates.
    Response: NMFS recognizes that WCPFC members and their enforcement 
agencies do not all use the same tools to determine where a given 
geographical coordinate lies on the earth's surface,

[[Page 38547]]

and indeed, do not all necessarily agree on the same coordinates to 
describe a given boundary. NMFS agrees that use by all WCPFC members of 
common agreed-upon geodetic tools would enhance the collective ability 
of WCPFC members to satisfy their enforcement responsibilities under 
the Convention and would reduce the potential for misunderstandings and 
conflicts among WCPFC members. However, this issue is outside the scope 
of this rule; NMFS does not recognize any way in which the proposed 
rule could be revised to address the comment.
    Comment 7: The proposed fishing effort limits are inconsistent with 
the provisions of CMM 2008-01, paragraph 10 of which establishes 2004 
levels or the average of 2001-2004 as the baseline for the limits for 
the high seas. The proposed rule misconstrues the meaning and intent of 
CMM 2008-01 by asserting that the potential effort of all 40 U.S. purse 
seine vessel licenses authorized under the South Pacific Tuna Treaty 
(SPTT) should be included in the baseline levels of fishing effort for 
both the high seas and the U.S. EEZ, whereas paragraph 7 of CMM 2008-
01, with its proviso that ``the registration of bilateral agreements or 
arrangements does not provide a basis for establishing effort levels on 
the high seas,'' explicitly prohibits such an expansion. Under NMFS' 
proposal, the baseline effort level (and therefore the 2009-2011 effort 
limit) for the high seas would be expanded from 1,066 fishing days to 
2,030 fishing days, and the EEZ baseline effort and 2009-2011 effort 
limit would be expanded from 279 days to 558 fishing days. NMFS should 
not attempt to circumvent the meaning or intent of CMM 2008-01, the 
unmistakable intent of which is to address depletion of bigeye tuna 
through, among other things, the imposition of purse seine effort 
limits reflective of those which occurred during the baseline period. 
If NMFS successfully applies the proposed methodology to the U.S. purse 
seine fleet, it must apply the same logic to the catch limits required 
in longline fisheries under CMM 2008-01, a proposed rule for which has 
not yet been published but alternatives for which are included in the 
EA for this purse seine-related proposed rule.
    Response: NMFS disagrees with the comment that the proposed fishing 
effort limits are inconsistent with the provisions of CMM 2008-01. 
Paragraph 7 of CMM 2008-01 states that the determination of levels of 
fishing effort established in the CMM shall include, as applicable, 
fishing rights organized under existing regional or bilateral fisheries 
partnership agreements or arrangements, subject to the following 
limitations: such agreements or arrangements have been registered with 
the WCPFC by December 2006 in accordance with CMM 2005-01 (a precursor 
of CMM 2008-01); the number of licenses authorized under such 
arrangements does not increase; and finally, that registered 
``bilateral agreements or arrangements'' do not provide a basis for 
establishing effort levels on the high seas. Accordingly, CMM 2008-01, 
paragraph 7, clearly provides for effort determinations to be based on 
existing rights (rather than historical fishing effort) under regional 
agreements such as the SPTT, provided that they are not used as a means 
to circumvent the objectives of CMM 2008-01 for bigeye tuna by 
increasing the number of licenses authorized under such agreements. 
Under the SPTT, the number of U.S. purse seine vessels that may be 
authorized to fish in the SPTT Area, including its areas of high seas, 
is strictly limited to 45, five of which are reserved for vessels 
engaged in joint ventures with Pacific Island Parties to the SPTT. 
These fishing rights of the United States under the SPTT provide the 
basis under CMM 2008-01 for determining effort limits. That is, the 
determination of the effort limits is based on the product of the 
number of licenses available under the SPTT and the average numbers of 
fishing days spent per vessel on the high seas and in the U.S. EEZ in 
2004. Finally, although CMM 2008-01 expressly prohibits the use of 
``bilateral agreements or arrangements'' to establish effort levels on 
the high seas, such restriction does not apply to the SPTT, which is a 
regional fisheries agreement among seventeen parties. Clearly, the 
restriction is intended to prevent parties to such bilateral 
arrangements from circumventing the objectives of CMM 2008-01.
    A portion of this comment refers to alternatives considered for the 
other action analyzed in the EA, ``Bigeye Tuna Catch Limits in Longline 
Fisheries in 2009, 2010, and 2011,'' which is not a part of this 
rulemaking. Although resubmission of this comment during the proposed 
rule comment period for that proposed rule is encouraged, NMFS will 
consider this comment, as appropriate, in the context of the longline-
related rule. Please see response to comment 14 regarding how the two 
actions are treated together in the EA.
    Comment 8: The proposed approach of using multiple-year management 
periods appears consistent with CMM 2008-01 with respect to the fishing 
effort limits in the U.S. EEZ, but not with respect to the limits on 
the high seas. More importantly, nowhere does CMM 2008-01 contemplate 
combining effort limits for the two areas that would permit the 
allowable effort for either area to be exceeded by transferring effort 
from one to the other. NMFS should determine and implement separate 
limits for the two areas. If the two areas are combined, NMFS must 
consider and present the potential impacts on stocks, marine 
ecosystems, other fisheries, and domestic fishing communities of up to 
2,588 purse seine fishing days being annually applied within the U.S. 
EEZ.
    Response: Regarding the use of multiple-year periods for the 
purpose of the fishing effort limits, CMM 2008-01 does not specify that 
the limits must be implemented on an annual basis or on any other 
specific time scale. With respect to limiting fishing effort on the 
high seas, for example, paragraph 10 of CMM 2008-01 states that ``the 
level of purse seine fishing effort in days fished [must] not exceed 
2004 levels or the average of 2001-2004.'' NMFS considered several 
alternative time scales for the fishing effort limits, including annual 
limits (including the calendar-year and the SPTT licensing-year, which 
runs from June 15 through June 14), a three-year limit, and the 
combination of one-year, two-year, and three-year limits, all of which 
NMFS believes are entirely consistent with the relevant requirements of 
CMM 2008-01. Based on the findings in the EA, RIR, and IRFA, NMFS 
concluded that the combination of one-year, two-year, and three-year 
limits would be the best alternative.
    CMM 2008-01 does not prohibit WCPFC members from managing areas of 
high seas and areas under their national jurisdiction as a single area 
for the purpose of the required limits on fishing effort. NMFS believes 
that the proposed approach is not only consistent with CMM 2008-01, but 
also that it is, as concluded in the RIR and IRFA, the approach that 
would satisfy the requirements of CMM 2008-01 while minimizing adverse 
economic impacts (the alternative of establishing separate limits for 
the two areas was also considered in the RIR, IRFA, and EA see response 
to comment 16).
    The objective of CMM 2008-01 is to reduce fishing mortality on 
bigeye tuna in the WCPO. The WCPFC has consistently treated bigeye tuna 
in the WCPO as a single stock for management purposes, and the 
objectives and approach of CMM 2008-01 continue that tradition. The 
separation in CMM 2008-01 of the high seas-related provisions from the 
national zone-related provisions has nothing to do

[[Page 38548]]

with differing management needs or objectives in the two respective 
areas. Rather, the two areas are treated separately because of the 
management approach adopted in CMM 2008-01. Specifically, CMM 2008-01 
puts the responsibility to limit fishing effort in areas under national 
jurisdiction on coastal States, while the responsibility to limit 
fishing effort in areas of high seas is put on flag States. In the case 
where a WCPFC member is both a coastal State and a flag State with 
respect to purse seine vessels, such as the United States, it makes 
good sense for the WCPFC member to satisfy its dual responsibilities 
using measures that collectively are as effective and practical as 
possible. NMFS has attempted to do just that in considering an 
alternative that would combine the two areas and another alternative 
that would not. Because both alternatives would accomplish the 
objective of reducing fishing mortality on WCPO bigeye tuna by the 
required amount (i.e., by U.S. purse seine vessels operating on the 
high seas and by purse seine vessels in areas under U.S. jurisdiction, 
collectively), and because the alternative of combining the two areas 
is expected to result in lesser adverse economic impacts, NMFS adopted 
the alternative that would combine the two areas, and NMFS does not 
find good reason to revise the proposal.
    With respect to considering potential impacts on stocks, marine 
ecosystems, other fisheries, and domestic fishing communities, NMFS has 
conducted the necessary environmental and economic analyses using the 
best available information and a reasonable range of assumptions. After 
considering historical fishing practices and patterns of the U.S. purse 
seine fleet in the region, NMFS does not agree with the commenter that 
the scenario presented of 2,588 purse seine fishing days being spent in 
the U.S. EEZ in a single year (i.e., essentially 100 percent of 
allowable fishing effort) is a reasonably foreseeable result of this 
action. During the years 1997-2007, the proportion of total fishing 
effort by the U.S. WCPO purse seine fleet that occurred in the U.S. EEZ 
ranged from 3 to 21 percent and averaged 7 percent (see Table 3 in the 
EA).
    Comment 9: Regarding the minimum distance that would be required 
between a purse seine set and a FAD during a FAD prohibition period, 
the proposed one nautical mile is inadequate in terms of effectiveness 
and enforceability. A buffer zone of at least 10 miles is necessary to 
ensure that purse seine vessels do not act as de facto FADs and draw 
fish away from FADs, as well as to allow enforcement of the 
requirement.
    Response: NMFS has not identified any relevant standard or 
precedent adopted either in the United States or in international 
fisheries fora. However, NMFS has considered relevant deliberations in 
tuna RFMOs and regional fisheries bodies, including those within the 
Inter-American Tropical Tuna Commission, within the Pacific Islands 
Forum Fisheries Agency (FFA) on behalf of its members that are Parties 
to the Nauru Agreement (PNA), and within the WCPFC's Third 
Intersessional Working Group Regional Observer Programme. Based in part 
on those deliberations, as well as NMFS' own assessment of what an 
effective distance would be, NMFS believes that a distance of one 
nautical mile is appropriate. NMFS believes that the distance of 10 
miles proposed by the commenter is impractical, in part because of the 
difficulty vessel operators would have in recognizing floating objects 
from such a great distance. NMFS does not find good reason to make any 
change from the proposed rule, but it recognizes that this aspect of 
the rule is largely untested, and NMFS intends to closely monitor its 
effectiveness and enforceability.
    Comment 10: NMFS proposes to delay implementation of CMM 2008-01's 
catch retention requirement until an adequate number of observers is 
available for all (domestic and foreign) purse seine vessels managed 
under the WCPFC. The United States, whose purse seine fleet is already 
subject to 20 percent observer coverage, should take an immediate 
leadership role by implementing this important conservation and 
management measure as required under CMM 2008-01.
    Response: Paragraph 27 of CMM 2008-01 states that the catch 
retention requirement is ``subject to the Commission implementing the 
program in paragraph 28 for 100 percent coverage on purse seine vessels 
by the observers from the Regional Observer Program.'' The proposed 
``delay'' in implementation referred to by the commenter is in fact not 
a proposal to delay implementation, but simply a proposal to implement 
this aspect of paragraph 27 of CMM 2008-01. Specifically, the proposed 
regulations state that the catch retention requirement is contingent on 
a determination by NMFS that ``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 
continues to find this aspect of the proposed rule to be consistent 
with CMM 2008-01.
    Comment 11: The provisions in the proposed rule that would allow a 
purse seine vessel to be used to fish without an observer on board in 
cases that (1) the fishing trip is restricted entirely to areas under 
U.S. jurisdiction, or (2) NMFS determines an observer is not available, 
are inconsistent with paragraphs 13, 14, 28, and 29 of CMM 2008-01, 
which do not provide exemptions for such cases.
    Response: Regarding the proposed rule's exemption for fishing trips 
that take place entirely in areas under U.S. jurisdiction, NMFS 
believes it is entirely consistent with CMM 2008-01. Paragraph 13 of 
CMM 2008-01 applies only to the high seas. Paragraphs 28 and 29 of CMM 
2008-01 apply only to the following three cases (all within the 
Convention Area, between 20[deg] N. and 20[deg] S. lat.): (1) fishing 
exclusively on the high seas, (2) fishing on the high seas and in 
waters under the jurisdiction of one or more coastal States, and (3) 
fishing in waters under the jurisdiction of two or more coastal States. 
The case of fishing in waters under jurisdiction of a single coastal 
State is not included. This is consistent with the scope of the WCPFC 
ROP as established in Article 28.4 of the Convention, which states that 
WCPFC members shall ensure that their fishing vessels operating in the 
Convention Area are prepared to accept observers from the WCPFC ROP if 
required by the WCPFC, ``except for vessels that operate exclusively 
within waters under the national jurisdiction of the flag State.'' 
Paragraphs 12 and 14 of CMM 20008-01 speak to observer requirements for 
2009 in areas under the jurisdiction of the flag State, but the 
requirement is only to implement measures that are ``compatible'' with 
those required under paragraph 11, which apply only to the WCPFC 
members that are PNA and not directly to the United States. NMFS finds 
the measures in the proposed rule to be compatible with those required 
of the PNA under paragraph 11 and, importantly, finds them consistent 
with the scope of the WCPFC ROP as established in Article 28.4 of the 
Convention.
    Regarding the proposal to waive the observer requirement in cases 
that an observer is not available, NMFS agrees that CMM 2008-01 does 
not explicitly allow WCPFC members to provide exemptions for its 
vessels in such cases, but disagrees that it may not establish a waiver 
provision where, through no fault of the vessel, an observer is not 
available. During the 22 years that U.S.

[[Page 38549]]

purse seine vessels have operated in the WCPO, the fleet has maintained 
a 20-percent observer coverage rate using independent and impartial 
observers from various Pacific Island countries, deployed by the FFA 
Regional Observer Programme, based in Honiara, Solomon Islands. FFA 
observers are authorized to operate in the entire SPTT Area, which 
includes portions of the U.S. EEZ. Paragraphs 13, 14, 28, and 29 of CMM 
2008-01 require that observers from the WCPFC ROP (or, in 2009 only, 
national observer programs) be deployed on purse seine vessels at 
levels of either 20 percent (in 2009, outside the FAD prohibition 
period) or 100 percent (at all other times in the years 2009-2011). The 
FFA Regional Observer Programme has received interim authorization 
under the WCPFC ROP, meaning that its observers are considered WCPFC 
ROP observers. At the 21st SPTT Formal Consultation, in Koror, Palau, 
the United States and the Pacific Island Parties to the SPTT agreed 
that the FFA Regional Observer Programme would continue to provide 
observer coverage for U.S. purse seine vessels as required under the 
SPTT, as well as provide the observers needed to satisfy the 
requirements for the United States of paragraphs 13, 14, 28, and 29 of 
CMM 2008-01. NMFS understands that the FFA is making preparations to 
move from the current 20-percent coverage rate under the SPTT to the 
100-percent coverage rate required of U.S. purse seine vessels that 
fish any time between August 1 and September 30, 2009. NMFS anticipates 
that approximately 35 observers would be needed during that period, and 
that at least that number would be needed throughout 2010 and 2011. 
NMFS recognizes that accomplishing such a rapid increase may present 
considerable logistical and training challenges for the FFA Regional 
Observer Programme, and there is a possibility that the FFA would not 
be able to provide observers in a timely manner in all cases in which 
they are needed. The waiver provision included in the proposed rule is 
intended to address this circumstance, recognizing that fishing vessels 
could be prohibited from sailing due to circumstances outside their 
control and not of their making. The waivers would be granted on a 
trip-by-trip basis, and only upon a determination by the NMFS Pacific 
Islands Regional Administrator that an observer is not available. NMFS 
anticipates that such waivers would be granted rarely.
    Comment 12: It is hoped that if an observer cannot be provided 
within 24 hours of a vessel's scheduled departure date for lack of an 
observer, the vessel would be allowed to go fishing. Also, a fishing 
vessel should be compensated if its departure is delayed more than 24 
hours waiting for an observer to arrive.
    Response: U.S. purse seine vessels licensed under the SPTT are 
currently required to accommodate FFA-deployed observers in accordance 
with the South Pacific Tuna Act of 1988 and its regulations. These 
observers come from a variety of locations in the Pacific region. Both 
the FFA and NMFS do everything they can to ensure that observers are 
placed well before fishing vessels' estimated dates of departure. 
Scheduled vessel departure dates are merely estimated dates and often 
change for a variety of reasons unrelated to observer placement. As 
stated in the response to comment number 11, arrangements have been 
made with the FFA for observers to be deployed from the FFA Regional 
Observer Programme to provide the enhanced observer coverage that would 
be required under the proposed rule. During the 22 years that observers 
have been deployed on U.S. purse seine vessels under the SPTT, there 
have been relatively few instances in which vessels have been 
significantly delayed as a result of FFA observer placement. The 
proposed rule would allow a vessel to depart without an observer only 
if the NMFS Pacific Islands Regional Administrator determines that an 
observer is not available. This provision is intended to be applied in 
exceptional cases. In all circumstances, this provision would be 
applied at the sole discretion of the Regional Administrator. NMFS 
intends to work with the FFA to ensure that the successful record of 
the past 22 years is maintained. NMFS does not see the need to employ a 
time limit based on what are merely estimated dates of departure. Nor 
does NMFS believe that vessel owners or operators should be compensated 
in the event the departure of the vessel is delayed as a result of 
waiting for an observer, which could be caused by any number of factors 
outside the control of both NMFS and the FFA, such as delayed or 
cancelled airline flights to vessels' ports of departure.
    Comment 13: The commenter should be provided with copies of the 
measures implemented by other WCPFC members to implement the WCPFC-
adopted sea turtle mitigation requirements for their purse seine 
fleets.
    Response: This comment does not pertain to the proposed rule 
itself. NMFS, as part of U.S. delegations to the WCPFC, routinely 
endeavors to determine whether all WCPFC members are satisfying their 
obligations to implement the decisions of the WCPFC, such as by 
ascertaining what specific actions they have taken to implement WCPFC-
adopted conservation and management measures. This applies to the 
WCPFC's CMM 2008-03 on sea turtles.
    The following comments were specific to the EA prepared for this 
proposed rule.
    Comment 14: The EA also analyzes another proposed rule, ``Bigeye 
Tuna Catch Limits in Longline Fisheries in 2009, 2010, and 2011.'' 
However, the proposed rule for that action has not yet been published 
and a preferred alternative for that action has not been designated in 
the EA. It is unclear why the EA contains analysis of this other rule.
    Response: As indicated in the ``Note to the Reader'' issued in 
conjunction with the draft version of the EA, the proposed rule, 
``Bigeye Tuna Catch Limits in Longline Fisheries in 2009, 2010, and 
2011,'' is forthcoming. There is no requirement that a proposed rule 
and a draft EA be issued simultaneously. The Council on Environmental 
Quality's (CEQ) regulations for implementing the National Environmental 
Policy Act (NEPA) at 40 CFR Sec.  1508.9 do not require the designation 
of a preferred alternative in an EA nor do the National Oceanic and 
Atmospheric Administration's Environmental Review Procedures for 
Implementing NEPA (NAO 216-6). As stated in Chapter 2 of the EA, for 
each rule, the EA compares the alternatives analyzed in depth to 
provide the decisionmaker and the public a clear basis for choosing 
among the alternatives.
    As stated in Chapter 1 of the EA, ``The CEQ's regulations at 40 CFR 
1508.25(a)(3) state that agencies may analyze similar actions (e.g., 
actions that have common timing or geography) in the same NEPA 
document, although they are not required to do so.'' And further, 
``both rules stem from the same WCPFC decisions and share common 
objectives, as well as common timing and geography. Thus, in order to 
implement the immediately necessary provisions of the recent WCPFC 
decisions in an efficient manner, NMFS has prepared one EA document for 
the two proposed rules.''
    Comment 15: The EA should analyze an alternative that would cap 
purse seine fishing effort at the annual average of 2001-2004, instead 
of using only the 2004 fishing effort level as the baseline. Moreover, 
the EA expands the amount of the purse seine fishing effort limit for 
the high seas and U.S. EEZ by multiplying the 2004 baseline amount by 
40, or the maximum number of

[[Page 38550]]

vessels allowed to be licensed under the SPTT. The EA should include an 
alternative that analyzes the fishing effort limit based on the number 
of vessels that was active in 2004.
    Response: CMM 2008-01 requires that each WCPFC member take measures 
to ensure that the level of purse seine fishing effort is based on 2004 
levels or the average of 2001-2004. The selection of the baseline 
period is left to the discretion of the WCPFC member. NMFS is satisfied 
that using the 2004 baseline period satisfies the requirements of the 
WCPFC decision without imposing undue or disproportionate burdens on 
the U.S. purse seine fishing fleet.
    NMFS disagrees with the comment that NMFS should have included an 
alternative in the EA that would base the fishing effort limit on the 
number of vessels that were active in 2004. CMM 2008-01, paragraph 7, 
provides for WCPFC members, in determining current levels of fishing 
effort, to include fishing rights organized under existing regional 
arrangements such as the SPTT. NMFS properly considered in the EA 
alternatives that used the 40 non-joint venture licenses authorized 
under SPTT as a baseline for determining the fishing effort limits 
under CMM 2008-01. For an expanded discussion, see the response to 
comment 7.
    Comment 16: The EA should include an alternative that sets a 
discrete fishing effort limit for the high seas. The extension of the 
PNA's Vessel Day Scheme approach to the high seas appears to be 
inconsistent with the provisions of the CMM 2008-01 that would be 
implemented in the rule.
    Response: Alternative D in the EA includes discrete fishing effort 
limits for the high seas and the U.S. EEZ.
    Comment 17: The EA should provide detailed analysis of the bigeye 
tuna catch limit alternative to the high seas FAD prohibition period 
set forth in paragraph 15 of CMM 2008-01. The EA rejected detailed 
consideration of this alternative because the United States did not 
meet the WCPFC's requirements for this alternative before the deadline 
of January 31, 2009. However, it appears that U.S. representatives 
declined to act upon this alternative and failed to provide the 
necessary information and commitments to the WCPFC in a timely manner. 
This alternative would provide a real incentive to explore methods to 
minimize bigeye tuna catches and achieve measurable conservation goals, 
whereas the use of fishing effort limits does not provide any such 
incentive or hard limit on bigeye tuna mortality. NMFS and U.S. 
representatives to the WCPFC should seek an extension of the January 
31, 2009 deadline and consider this approach in the 2010-2011 
management of the domestic purse seine fishery.
    Response: The comment is noted. The United States determined that 
it would not adopt the catch limit measures in paragraph 15 of CMM 
2008-01 in lieu of implementing the high seas FAD closure established 
under paragraph 13. Accordingly, the WCPFC's deadline for proceeding 
under a catch limit program lapsed, and as stated in the EA, this 
alternative was not available for detailed consideration. Moreover, the 
bigeye tuna catch limit was set forth in CMM 2008-01 as an alternative 
to the high seas FAD prohibition period for 2009, not as an alternative 
to the fishing effort limit provisions.
    Comment 18: The EA should consider a bigeye tuna catch limit for 
the swordfish sector of the longline fishery, which averages about 17 
bigeye tuna incidentally caught per set [the commenter subsequently 
clarified this to mean 17 bigeye tuna per trip], which are brought to 
shore and sold. Such a catch limit would reduce bycatch, avoid waste, 
and promote optimum yields.
    Response: This comment refers to alternatives considered for the 
other action analyzed in the EA, ``Bigeye Tuna Catch Limits in Longline 
Fisheries in 2009, 2010, and 2011,'' which is not a part of this 
rulemaking. Although resubmission of this comment during the proposed 
rule comment period for that proposed rule is encouraged, NMFS will 
consider this comment, as appropriate, in the context of the longline-
related rule.
    Comment 19: The EA should include an alternative to the bigeye tuna 
catch limit for the longline fishery that would utilize the three-year 
rolling management period that has been proposed for the purse seine 
fishing effort limits.
    Response: This comment refers to alternatives considered for the 
other action analyzed in the EA, ``Bigeye Tuna Catch Limits in Longline 
Fisheries in 2009, 2010, and 2011,'' which is not a part of this 
rulemaking. Although resubmission of this comment during the proposed 
rule comment period for that proposed rule is encouraged, NMFS will 
consider this comment, as appropriate, in the context of the longline-
related rule.
    Comment 20: Table 4 of the EA provides combined yellowfin tuna and 
bigeye tuna catch data for 2007 and 2008, including by landing port, 
and aggregates the information for associated and unassociated fishing. 
Table 5 provides separate information on yellowfin tuna and bigeye tuna 
catches for 2003-2008, including separate information for associated 
and unassociated fishing, but landing port information is not included. 
Detailed and fully disaggregated information should be included, 
discussed, and analyzed so that the differential impacts of the 
alternatives can be fully considered by decisionmakers and the public 
based on the best available information.
    Response: The EA considered four action alternatives for the rule, 
as well as the No-Action or baseline alternative. Each of the action 
alternatives included six separate provisions, but only one of those 
provisions the fishing effort limit provision varied between the 
alternatives. Including information stating how much bigeye tuna and 
yellowfin tuna caught by associated or unassociated means is landed at 
each port would not provide additional information for the comparison 
of alternatives.
    Comment 21: The information in Table 5 conflicts with other 
published reports regarding catches of bigeye tuna by the U.S. purse 
seine fleet, particularly the 2005 U.S. annual report to the WCPFC. 
Data in the EA for bigeye tuna catches in the purse seine fleet are 
incomplete, because they are only provided for the last five years. 
Moreover, the number for the 2008 bigeye tuna catches of the U.S. purse 
seine fleet included in Table 5 is inaccurate.
    Response: NMFS acknowledges the discrepancy between the data in 
Table 5 of the EA and the information provided in the U.S. annual 
reports to the WCPFC. The annual reports contain the United States' 
best available information regarding the U.S. WCPO purse seine 
fishery's catch statistics. The data in Table 5 are from a report 
prepared by the Secretariat of the Pacific Community, as cited in the 
EA, and are based on information from vessel logsheets. As noted in the 
EA, the 2008 data are preliminary. Table 5 was included in the EA to 
provide the most recent information NMFS could obtain regarding the 
amounts of skipjack tuna, yellowfin tuna, and bigeye tuna caught by 
unassociated and associated sets, respectively. In order to account for 
any numerical inaccuracies, these data were aggregated and converted to 
percentages in Section 4.1.2.2 of the EA. This information was then 
used to support the qualitative analysis of the potential environmental 
impacts that could be caused by implementation of the FAD prohibition 
periods. NMFS does not believe that the inclusion of additional data 
beyond the past five years would

[[Page 38551]]

provide information pertinent to the analysis in the EA.
    Comment 22: Table 8 of the EA conflicts with previously published 
information regarding catches by Hawaii-based longline vessels. Table 8 
indicates that 5,779 metric tons (mt) of bigeye tuna were caught in 
2007 while the U.S. report to the WCPFC indicates that 5,400 mt were 
caught. Also, information contained in the U.S. annual reports to the 
WCPFC for fishing during 2000-2008 should be included in a specific 
table format so that the differential impacts of the alternatives can 
be fully considered by decisionmakers and the public based on the best 
available information.
    Response: The comment is noted. The Errata sheet for the Final EA 
contains a corrected version of Table 8. NMFS does not believe that the 
inclusion of the 2000-2008 data in the format suggested in the comment 
would provide information pertinent to the analysis in the EA. 
Moreover, the data for longline bigeye tuna catches in the U.S. annual 
reports to the WCPFC are not limited to the Hawaii fleet, and thus, are 
not comparable to the data in Table 8.
    Comment 23: The EA fails to discuss the fact that the removal of 
swordfish effort limits [a separate regulatory action from this rule 
that would involve implementation of Amendment 18 to the Fishery 
Management Plan for Pelagic Fisheries in the Western Pacific Region] in 
the Hawaii longline fishery would result in increased direction of 
fishing effort toward swordfish and would likely reduce effort directed 
toward bigeye tuna.
    Response: As stated in Chapter 5 of the EA, Cumulative Impacts, 
NMFS indicated that if and when Amendment 18 is implemented, the Hawaii 
longline fleet may have greater incentive to target swordfish. That, in 
turn, could lead to reduced fishing effort directed at bigeye tuna.
    Comment 24: The EA fails to discuss or analyze how and to what 
magnitude the alternatives for purse seine fishing effort limits would 
reduce bigeye tuna catches from the available baseline periods.
    Response: As discussed throughout Chapter 4, Section 4.1 of the EA, 
the fishing effort limits are not expected to appreciably affect the 
fleet's total fishing effort (relative to the no-action scenario). 
Moreover, the baseline for comparing the environmental effects of the 
alternatives in the EA is the No-Action, or baseline alternative, not 
the baseline periods used to derive the fishing effort limits.
    Comment 25: The EA does not contain a comprehensive discussion of 
economic or social impacts. There is no analysis of impacts on markets, 
communities, human nutrition, consumers, etc.
    Response: As stated in Chapter 4 of the EA, the information 
regarding economic impacts in the EA is provided solely to determine 
whether and to what degree economic impacts are interrelated with 
environmental impacts. Moreover, the EA incorporates by reference the 
RIR and IRFA for the rule, which contain an appropriate analysis of 
economic impacts.
    Comment 26: The cumulative impacts section of the EA is inadequate. 
A major discrepancy is the lack of discussion of the well documented 
transfer effects that occur when U.S. seafood production is curtailed 
and domestic consumption of imported seafood increases in response. If 
the longline fishery is closed when the bigeye tuna catch limit for 
that fishery is reached, the demand for bigeye tuna will be met by 
longline caught tuna imported from other countries, which have less 
stringent regulations to mitigate environmental impacts, such as 
interactions with seabirds and sea turtles.
    Response: The RIR for this rule, which is incorporated by reference 
into the EA, examines the expected effects of this rule on consumers, 
including effects on quantities, quality, and prices of products 
available to U.S. consumers. Consumers in the United States of U.S. 
purse seine fishery-produced tuna are part of a large global market of 
tuna sourced from the fleets of many nations and produced from tuna 
stocks in all the world's oceans. Thus, production by the U.S. purse 
seine fleet in the WCPO has limited influence on the price, quantity, 
quality, or source of tuna products consumed in the United States. 
Moreover, this proposed action is expected to have relatively minor 
effects on production by the U.S. fleet. Therefore, NMFS believes the 
transfer effects mentioned in the comment are unlikely to occur.
    A portion of this comment refers to the other action analyzed in 
the EA, ``Bigeye Tuna Catch Limits in Longline Fisheries in 2009, 2010, 
and 2011.'' As indicated in the ``Note to the Reader'' issued in 
conjunction with the draft version of the EA, the proposed rule for 
that action had not been issued at the time the EA was made available, 
and the RIR for the longline-related rule consequently had not yet been 
made publicly available. For that reason, this comment will be 
addressed in the context of the longline-related rule and the RIR for 
that action.
    Comment 27: The Environmental Justice section of the EA does not 
include sufficient analysis for a determination to be made regarding 
significant environmental impacts.
    Response: The purpose of an Environmental Justice analysis is to 
determine whether a proposed action would have disproportionately high 
and adverse human health or environmental effects on minority or low-
income populations. As discussed throughout the EA and summarized in 
Chapter 4, Section 4.6, implementation of the provisions in this rule 
and the longline-related rule would not lead to substantial adverse 
human health or environmental effects on any population minority, low 
income, or otherwise.
    Comment 28: The EA is insufficient to make an informed 
determination regarding the significance of the likely environmental 
impacts of the alternatives considered. However, given that the Pacific 
purse seine fisheries are the biggest tuna fisheries in the world, that 
longline fishing is the biggest fishery in Hawaii, that many of the 
measures for purse seine fishing in the WCPO are being considered for 
the first time, and that there are increasingly loud concerns being 
expressed by governments and non-governmental organizations regarding 
overfishing of the world's marine ecosystems, it is clear that the 
actions being contemplated by NMFS are controversial and preparation of 
an Environmental Impact Statement (EIS) may better inform the public.
    Response: NMFS disagrees that the proposed rule is controversial, 
but even assuming it is, controversy alone is insufficient to trigger 
the requirement for an EIS. NMFS received only two comment letters in 
response to the proposed rule. Based on the analysis in the EA, NMFS 
does not believe that the effects of the action on the quality of the 
human environment are significant, or that the proposed action or its 
effects are controversial.

Changes from the Proposed Rule

    In the proposed regulations, regulatory instruction (3) said that 
``Subpart O, consisting of Sec. Sec.  300.210 through 200.222, is added 
to part 300 to read as follows:'' The instruction was meant to read `` 
consisting of Sec. Sec.  300.210 through 300.222... ,'' and the 
corresponding instruction in this final rule is corrected accordingly.
    On May 22, 2009, NMFS published in the Federal Register a proposed 
rule to implement, in part, the provisions of the Convention (74 FR 
23965). The regulations in that proposed rule (called here the ``WCPFC 
implementation

[[Page 38552]]

rule'') would establish a new subpart O in part 300 of title 50 of the 
Code of Federal Regulations, titled ``Western and Central Pacific 
Fisheries for Highly Migratory Species.'' The proposed rule that led to 
this final rule (called here the ``WCPFC purse seine rule'') was 
published after the proposed WCPFC implementation rule, on June 1, 
2009. Accordingly, the regulations in the proposed WCPFC purse seine 
rule were written as amendments to subpart O in part 300. However, this 
final rule is being published before the final WCPFC implementation 
rule. It is therefore necessary for subpart O of part 300 of title 50 
to be created in this final rule, as well as to incorporate relevant 
elements of the WCPFC implementation rule into these final regulations. 
Specifically, the following elements of the regulations proposed in the 
WCPFC implementation rule are included in this final rule: Sec.  
300.210, ``Purpose and scope,'' is included in its entirety. From Sec.  
300.211, ``Definitions,'' the introductory sentence and all the terms 
used in the proposed WCPFC purse seine rule are included. From Sec.  
300.215, ``Observers,'' paragraph (c), ``Accommodating observers,'' 
which is referenced in Sec.  300.223(e)(3) and (4) of the proposed 
WCPFC purse seine rule and this final rule, is included, with the 
exception of the sentence ``All fishing vessels subject to this section 
must carry a WCPFC observer when directed to do so by NMFS.'' From 
Sec.  300.222, ``Prohibitions,'' the introductory sentence is included.
    In Sec.  300.211, ``Definitions,'' the definition of FAD has been 
revised to clarify that it does not include a fishing vessel, provided 
that the fishing vessel is not used for the purpose of aggregating 
fish.
    In Sec.  300.223, ``Purse seine fishing restrictions,'' in order to 
clarify when, exactly, all the specified dates begin and end, an 
introductory sentence is included that states that all dates used in 
this section are in Universal Coordinated Time, also known as UTC.
    In Sec.  300.223, ``Purse seine fishing restrictions,'' paragraph 
(b)(2) is revised to add that during a FAD prohibition period, a purse 
seine may not be set in an area in which a FAD has been inspected or 
handled within the previous eight hours.
    In Sec.  300.223, ``Purse seine fishing restrictions,'' paragraph 
(b)(4) is revised to clarify that during a FAD prohibition period, a 
FAD may be removed from the water and if removed may be cleaned, 
provided that it is not returned to the water.

Classification

    The NMFS Assistant Administrator has determined that this final 
rule is consistent with the WCPFC Implementation Act and other 
applicable laws.

Administrative Procedure Act

    There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day 
delay in effective date for all of this final rule except Sec. Sec.  
300.222(aa) and 300.223(f) (the sea turtle mitigation requirements and 
associated prohibitions). Compliance with the 30-delay requirement 
would be impracticable and contrary to the public interest the FAD 
prohibition period and associated observer requirement would be in 
effect for only about half of the specified period in 2009, meaning 
that NMFS would be frustrated in promulgating the regulations needed to 
satisfy the international obligations of the United States under the 
Convention. Also, NMFS had limited notice of the need to implement CMM 
2008-01, which was adopted in the December 2008 regular annual session 
of the WCPFC.

National Environmental Policy Act

    NMFS prepared an EA for this rule and concluded that there will be 
no significant impact on the human environment as a result of this 
rule. In the EA, NMFS compared the effects of the rule and four 
alternatives to the 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 on 
bigeye tuna and other living marine resources from the rule or any of 
the action alternatives are expected to be similar and generally 
beneficial. The EA focuses on analyzing four alternatives for 
implementing the limit on the number of fishing days. NMFS initially 
considered two alternatives to the FAD prohibition period element of 
the rule that were eliminated from detailed consideration. For the 
other elements of the rule, NMFS was not able to identify any 
alternatives that were reasonable and feasible. The 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 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 rule are expected to 
be minor for the following reasons. First, the duration of the 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 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 highly migratory species could cause similar 
beneficial effects, so overall, the cumulative impacts on the affected 
environment could be greater than if the rule were implemented in 
isolation. Specifically, implementation by the United States of the 
provisions of CMM 2008-01 applicable to longline vessels (which NMFS is 
undertaking via a separate rulemaking) and implementation by other 
WCPFC members of the provisions of CMM 2008-01 and CMM 2008-03 would 
enhance the beneficial impacts to bigeye tuna, yellowfin tuna, and 
other living marine resources. If the WCPFC adopts and its members 
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 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, IRFA, and FRFA. A copy of the 
EA is available from NMFS (see ADDRESSES).

Executive Order 12866

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

Regulatory Flexibility Act

    NMFS prepared this final regulatory flexibility analysis (FRFA) for 
the rule, Fishing Restrictions and Observer Requirements in Purse Seine 
Fisheries for 2009-2011 and Turtle Mitigation Requirements in Purse 
Seine Fisheries. The FRFA incorporates the IRFA prepared for the 
proposed rule (74 FR 26160; June 1, 2009; available from NMFS see 
ADDRESSES). The analysis

[[Page 38553]]

provided in the IRFA is not repeated here in its entirety.
    The need for, reasons why action by the agency is being considered, 
and the objectives of the action are explained in the preambles to the 
proposed rule and final rule and are not repeated here. There are no 
disproportionate economic impacts between small and large vessels 
resulting from this rule. Furthermore, there are no disproportionate 
economic impacts from this rule based on vessel size, gear, or 
homeport. There are no new recordkeeping or reporting requirements 
associated with this rule. Other compliance requirements are described 
in the IRFA. This rule is issued under authority of the WCPFC 
Implementation Act.

Description of Small Entities to Which the Rule Will Apply

    The rule will 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 SPTT (excluding joint-venture 
licenses), which is 40. Based on (limited) financial information about 
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).

Steps Taken To Minimize the Significant Economic Impact on Small 
Entities

    NMFS explored alternatives that would achieve the objective of this 
action (to satisfy the international obligations of the United States 
under WCPFC CMM 2008-01 and CMM 2008-03 with respect to U.S. purse 
seine vessels) while minimizing economic impacts on small entities. 
Several alternatives were identified and considered. All were limited 
to the way in which the fishing effort limits would be implemented. One 
alternative differed from the 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 
rule. As described in the IRFA, those potential impacts include lower 
prices for landed product and risks to performance and safety stemming 
from fishing during sub-optimal times. However, as described in the 
IRFA, the fishing effort limits are not very constraining (i.e., the 
level of effort expected under no-action is not much greater, if 
greater at all, than the level to which effort would be limited under 
this rule), so these adverse impacts are expected to be minor. For that 
reason, this alternative was rejected.
    Another alternative differed from the 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 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 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 was rejected. 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 IRFA, 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 rule, and consequently 
more costly. It was rejected for that reason.
    The alternative of taking no action at all was rejected because it 
would fail to accomplish the objective of the WCPFC Implementation Act 
or satisfy the international obligations of the United States as a 
Contracting Party to the Convention.
    The selected alternative would accomplish the objective of the 
WCPFC Implementation Act and satisfy the international obligations of 
the United States with respect to implementing WCPFC CMM 2008-01 and 
CMM 2008-03, and do so with minimal adverse economic impacts on small 
entities, and for these reasons was adopted in the final rule.

Comments and Responses

    Comment 1: The IRFA fails to consider an appropriate range of 
alternatives and appears to be lacking some required information and 
analyses. The analysis should also include an examination of the 
differential impacts of the alternatives on U.S.-built purse seine 
vessels versus foreign-built purse seine vessels.
    Response: With respect to the range of analyses considered in the 
IRFA, NMFS disagrees with the comment. All the alternatives analyzed in 
detail in the EA were also considered in the IRFA, and NMFS finds those 
alternatives to comprise an appropriate range in the contexts of both 
NEPA and the Regulatory Flexibility Act.
    With respect to differential impacts on the two types of vessels, a 
vessel built or rebuilt outside the United States, with limited 
exceptions, is not eligible for a fishery endorsement on its 
certificate of documentation and consequently is not authorized to be 
used for fishing in the U.S. EEZ. Therefore, under the no-action 
alternative, as well as under the proposed rule and all the action 
alternatives, U.S.-built vessels with fishery endorsements would have 
an advantage over the remainder of the U.S. purse seine fleet. The 
proposed rule would not alter the legal requirements with respect to 
eligibility for fishery endorsements, and it does not include any 
provisions that apply differently to U.S.-built vessels than to 
foreign-built vessels. Among the 39 U.S. purse seine vessels currently 
licensed under the SPTT and which would be directly affected by this 
rule, 11 have fishery endorsements and 28 do not. To give an indication 
of the magnitude of the advantage, in the years 1997-2007, the portion 
of the fleet's annual fishing effort (in days fished) that was spent in 
the U.S. EEZ (necessarily by vessels with fishery endorsements only) 
averaged seven percent (NMFS unpublished data), and through most of 
that period, the ratio in the number of vessels with fishery 
endorsements to the number without fishery endorsements was 
considerably higher than it is now. NMFS recognizes that two elements 
of the proposed rule would have the potential to enhance or diminish 
this advantage, as follows.

[[Page 38554]]

    With respect to the fishing effort limits, once a limit is reached, 
vessels with fishery endorsements would be prohibited from fishing in a 
somewhat larger area (high seas plus U.S. EEZ in the Convention Area) 
than the area in which the vessels without fishery endorsements would 
be prohibited from fishing (only the high seas in the Convention Area). 
In absolute terms, therefore, operators of vessels with fishery 
endorsements could bear greater losses as a result of a limit being 
reached than operators of vessels without fishery endorsements. In 
relative terms, however, the expected impacts on the two types of 
vessels are the same vessels of both types would be expected to 
experience approximately the same losses in terms of the proportion of 
revenues or profits that would be lost. Also, there would not be any 
differential impact at all until a limit is reached, and as described 
in the IRFA, the likelihood of a limit being reached in any given 
limit-period may not be high. Furthermore, as described in the IRFA, 
even if a limit is reached, the expected economic impacts, considering 
opportunity costs, are expected to be minor, since the most of the 
fleet's traditional fishing grounds that is, foreign EEZs within the 
Convention Area, as well as the eastern Pacific Ocean would remain open 
to fishing. In sum, the fishing effort limits would not be expected to 
bring substantial differential impacts according to whether a vessel is 
U.S.-built or foreign-built.
    The high seas closed areas, in contrast to the fishing effort 
limits, could cause vessels without fishery endorsements to bear 
greater losses than vessels with fishery endorsements, since the former 
would be excluded from a greater proportion of their otherwise 
available fishing grounds than would vessels with fishery endorsements. 
As described in the IRFA, the economic impacts of the high seas closed 
areas, considering opportunity costs, are expected to be relatively 
minor because most of the fleet's traditional fishing grounds would 
remain open. Therefore, the high seas closed areas would not be 
expected to bring substantial differential impacts according to whether 
a vessel is U.S.-built or foreign-built.
    None of the other elements of the proposed rule, including the FAD 
prohibition periods, catch retention requirements, observer coverage 
requirements, or turtle mitigation requirements, would be expected to 
have differential impacts according to whether a vessel is U.S.-built 
or foreign-built.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide (the guide) 
has been prepared. The guide will be sent to all holders of purse seine 
licenses issued pursuant to regulations implementing the South Pacific 
Tuna Act of 1988. Copies of this final rule and the guide are available 
from NMFS (see ADDRESSES) and are available at: http://www.fpir.noaa.gov/IFD/ifd_documents_data.html.

List of Subjects in 50 CFR Part 300

    Administrative practice and procedure, Fish, Fisheries, Fishing, 
Marine resources, Reporting and recordkeeping requirements, Treaties.

    Dated: July 29, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 300 is amended by 
adding subpart O, consisting of Sec. Sec.  300.210 through 300.223, to 
read as follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

Subpart O--Western and Central Pacific Fisheries for Highly 
Migratory Species

Sec.
300.210 Purpose and scope.
300.211 Definitions.
300.212 Vessel permit endorsements. [Reserved]
300.213 Vessel information. [Reserved]
300.214 Compliance with laws of other nations. [Reserved]
300.215 Observers.
300.216 Transshipment. [Reserved]
300.217 Vessel identification. [Reserved]
300.218 Reporting and recordkeeping requirements. [Reserved]
300.219 Vessel monitoring system. [Reserved]
300.220 Confidentiality of information. [Reserved]
300.221 Facilitation of enforcement and inspection. [Reserved]
300.222 Prohibitions.
300.223 Purse seine fishing restrictions.

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

Subpart O--Western and Central Pacific Fisheries for Highly 
Migratory Species


Sec.  300.210  Purpose and scope.

    This subpart implements provisions of the Western and Central 
Pacific Fisheries Convention Implementation Act (Act) and applies to 
persons and vessels subject to the jurisdiction of the United States.


Sec.  300.211  Definitions.

    In addition to the terms defined in Sec.  300.2 and those in the 
Act and in the Convention on the Conservation and Management of Highly 
Migratory Fish Stocks in the Western and Central Pacific Ocean, with 
Annexes (WCPF Convention), which was adopted at Honolulu, Hawaii, on 
September 5, 2000, by the Multilateral High-Level Conference on Highly 
Migratory Fish Stocks in the Western and Central Pacific Ocean, the 
terms used in this subpart have the following meanings.
    Commission means the Commission for the Conservation and Management 
of Highly Migratory Fish Stocks in the Western and Central Pacific 
Ocean established in accordance with the WCPF Convention, including its 
employees and contractors.
    Convention Area means all waters of the Pacific Ocean bounded to 
the south and to the east by the following line: From the south coast 
of Australia due south along the 141st meridian of east longitude to 
its intersection with the 55th parallel of south latitude; thence due 
east along the 55th parallel of south latitude to its intersection with 
the 150th meridian of east longitude; thence due south along the 150th 
meridian of east longitude to its intersection with the 60th parallel 
of south latitude; thence due east along the 60th parallel of south 
latitude to its intersection with the 130th meridian of west longitude; 
thence due north along the 130th meridian of west longitude to its 
intersection with the 4th parallel of south latitude; thence due west 
along the 4th parallel of south latitude to its intersection with the 
150th meridian of west longitude; thence due north along the 150th 
meridian of west longitude.
    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

[[Page 38555]]

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. The meaning 
of FAD does not include a fishing vessel, provided that the fishing 
vessel is not used for the purpose of aggregating fish.
    Fishing means using any vessel, vehicle, aircraft or hovercraft for 
any of the following activities, or attempting to do so:
    (1) Searching for, catching, taking, or harvesting fish;
    (2) Engaging in any other activity which can reasonably be expected 
to result in the locating, catching, taking, or harvesting of fish for 
any purpose;
    (3) Placing, searching for, or recovering fish aggregating devices 
or associated electronic equipment such as radio beacons;
    (4) Engaging in any operations at sea directly in support of, or in 
preparation for, any of the activities previously described in 
paragraphs (1) through (3) of this definition, including, but not 
limited to, bunkering;
    (5) Engaging in transshipment, either unloading or loading fish.
    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.
    Fishing vessel means any vessel used or intended for use for the 
purpose of fishing, including bunkering and other support vessels, 
carrier vessels and other vessels that unload or load fish in a 
transshipment, and any other vessel directly involved in fishing.
    High seas means the waters beyond the territorial sea or exclusive 
economic zone (or the equivalent) of any nation, to the extent that 
such territorial sea or exclusive economic zone (or the equivalent) is 
recognized by the United States.
    Member of the Commission means any Contracting Party to the WCPF 
Convention, and, unless otherwise stated in context, any territory that 
has been authorized by an appropriate Contracting Party to participate 
in the Commission and its subsidiary bodies pursuant to Article 43 of 
the WCPF Convention and any fishing entity that has agreed to be bound 
by the regime established by the WCPF Convention pursuant to Annex I of 
the WCPF Convention.
    Pacific Islands Regional Administrator means the Regional 
Administrator, Pacific Islands Region, NMFS, or a designee (1601 
Kapiolani Blvd., Suite 1110, Honolulu, HI 96814).
    Person means any individual (whether or not a citizen or national 
of the United States), any corporation, partnership, association, or 
other entity (whether or not organized or existing under the laws of 
any State), and any Federal, State, local, or foreign government or any 
entity of any such government.
    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.
    State means each of the several States of the United States, the 
District of Columbia, the Commonwealth of the Northern Mariana Islands, 
American Samoa, Guam, and any other commonwealth, territory, or 
possession of the United States.
    Transshipment means the unloading of fish from one fishing vessel 
and its direct transfer to, and loading on, another fishing vessel, 
either at sea or in port.
    WCPF Convention means the Convention on the Conservation and 
Management of Highly Migratory Fish Stocks in the Western and Central 
Pacific Ocean (including any annexes, amendments, or protocols that are 
in force, or have come into force, for the United States) that was 
adopted at Honolulu, Hawaii, on September 5, 2000, by the Multilateral 
High-Level Conference on Highly Migratory Fish Stocks in the Western 
and Central Pacific Ocean.
    WCPFC observer means a person authorized by the Commission in 
accordance with any procedures established by the Commission to 
undertake vessel observer duties as part of the Commission's Regional 
Observer Programme, including an observer deployed as part of a NMFS-
administered observer program or as part of another national or sub-
regional observer program, provided that such program is authorized by 
the Commission to be part of the Commission's Regional Observer 
Programme.


Sec.  300.212  Vessel permit endorsements. [Reserved]


Sec.  300.213  Vessel information. [Reserved]


Sec.  300.214  Compliance with laws of other nations. [Reserved]


Sec.  300.215  Observers.

    (a) Applicability. [Reserved]
    (b) Notifications. [Reserved]
    (c) Accommodating observers. The operator and each member of the 
crew of the fishing vessel shall act in accordance with this paragraph 
with respect to any WCPFC observer.
    (1) The operator and crew shall allow and assist WCPFC observers 
to:
    (i) Embark at a place and time determined by NMFS or otherwise 
agreed to by NMFS and the vessel operator;
    (ii) Have access to and use of all facilities and equipment on 
board as necessary to conduct observer duties, including, but not 
limited to: full access to the bridge, the fish on board, and areas 
which may be used to hold, process, weigh and store fish; full access 
to the vessel's records, including its logs and documentation, for the 
purpose of inspection and copying; access to, and use of, navigational 
equipment, charts and radios; and access to other information relating 
to fishing;
    (iii) Remove samples;
    (iv) Disembark at a place and time determined by NMFS or otherwise 
agreed to by NMFS and the vessel operator; and
    (v) Carry out all duties safely.
    (2) The operator shall provide the WCPFC observer, while on board 
the vessel, with food, accommodation and medical facilities of a 
reasonable standard equivalent to those normally available to an 
officer on board the vessel, at no expense to the WCPFC observer.
    (3) The operator and crew shall not assault, obstruct, resist, 
delay, refuse boarding to, intimidate, harass or interfere with WCPFC 
observers in the performance of their duties, or attempt to do any of 
the same.
    (d) Related observer requirements. [Reserved]


Sec.  300.216  Transshipment. [Reserved]


Sec.  300.217  Vessel identification. [Reserved]


Sec.  300.218  Reporting and recordkeeping requirements. [Reserved]


Sec.  300.219  Vessel monitoring system. [Reserved]


Sec.  300.220  Confidentiality of information. [Reserved]


Sec.  300.221  Facilitation of enforcement and inspection. [Reserved]


Sec.  300.222  Prohibitions.

    In addition to the prohibitions in Sec.  300.4, it is unlawful for 
any person to:
    (a) through (u) [Reserved]
    (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).

[[Page 38556]]

    (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).


Sec.  300.223  Purse seine fishing restrictions.

    All dates used in this section are in Universal Coordinated Time, 
also known as UTC; for example: the year 2009 starts at 00:00 on 
January 1, 2009 UTC and ends at 24:00 on December 31, 2009 UTC; and 
August 1, 2009, begins at 00:00 UTC and ends at 24:00 UTC.
    (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.
    (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 in which a 
FAD has been inspected or handled 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:
     (i) 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; and
    (ii) A FAD may be removed from the water and if removed may be 
cleaned, provided that it is not returned to the water.
    (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 is 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 under 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 Pacific Islands Regional Administrator has determined 
that an observer is not available for the fishing trip and a written 
copy of the Pacific Islands Regional Administrator's determination, 
which must include the approximate start date of the fishing trip and 
the port of departure, is carried on

[[Page 38557]]

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 under 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 Pacific Islands Regional Administrator has determined 
that a WCPFC observer is not available for the fishing trip and a 
written copy of the Pacific Islands 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), (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

[[Page 38558]]

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.
[FR Doc. E9-18583 Filed 8-3-09; 8:45 am]
BILLING CODE 3510-22-S