[Federal Register Volume 76, Number 2 (Tuesday, January 4, 2011)]
[Rules and Regulations]
[Pages 283-287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-33228]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 100311144-0623-02]
RIN 0648-AY75


International Fisheries; Pacific Tuna Fisheries; Vessel Capacity 
Limit in the Purse Seine Fishery in the Eastern Pacific Ocean

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

ACTION: Final rule.

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SUMMARY: NMFS hereby issues regulations under the Tuna Conventions Act 
of 1950 (Act), as amended, for the U.S. purse seine fishery operating 
in the eastern Pacific Ocean (EPO) to make U.S. regulations more 
consistent with the Inter-American Tropical Tuna Commission (IATTC) 
Resolution on the Capacity of the Tuna Fleet Operating in the Eastern 
Pacific Ocean. These revisions will ensure that the United States 
satisfies its obligations under the Tuna Conventions Act while allowing 
controlled operational flexibility for the U.S. industry consistent 
with the IATTC management framework.

DATES: These regulations become effective on February 3, 2011.

ADDRESSES: Copies of supporting documents that were prepared for this 
final rule, including the environmental

[[Page 284]]

assessment (EA), the small entity compliance guide, and the proposed 
rule, are available via the Federal e-Rulemaking portal, at http://www.regulations.gov. Those documents are also available from the 
Regional Administrator, Rodney R. McInnis, NMFS Southwest Regional 
Office, 501 W. Ocean Boulevard, Suite 4200, Long Beach, CA 90802. 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. Written comments 
regarding the burden-hour estimates or other aspects of the collection-
of-information requirements contained in this final rule may be 
submitted to the NMFS Southwest Regional Office and by e-mail to [email protected], or faxed to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Heidi Hermsmeyer, NMFS SWR, 562-980-
4036.

SUPPLEMENTARY INFORMATION: On September 3, 2010, NMFS published a 
proposed rule in the Federal Register (75 FR 54078) that would revise 
regulations at 50 CFR part 300, subpart C, in order to implement 
certain decisions of the IATTC. The proposed rule was open to public 
comment through October 4, 2010.
    As a Contracting Party to the 1949 Convention for the Establishment 
of an Inter-American Tropical Tuna Commission (Convention) and a member 
of the IATTC, the United States is legally bound to implement the 
decisions of the IATTC. The Act (16 U.S.C. 951 et seq.) authorizes the 
Secretary of Commerce, in consultation with the Secretary of State and 
the Secretary of the Department in which the United States Coast Guard 
(USCG) is operating (currently the Department of Homeland Security), to 
promulgate such regulations as may be necessary to carry out the 
obligations of the United States under the Convention, including the 
decisions of the IATTC. The Secretary of Commerce has delegated the 
authority to promulgate regulations to NMFS.

IATTC Decisions Regarding Capacity in the Purse Seine Fishery

    At its sixty-ninth annual meeting in June 2002, the IATTC adopted 
the Resolution on the Capacity of the Tuna Fleet Operating in the 
Eastern Pacific Ocean (Resolution C-02-03) to address the problem of 
excess capacity in the tuna purse-seine fleet operating in the EPO by 
limiting the capacity to a level which would ensure that tuna fisheries 
in the region are sustainable. The resolution, available with other 
decisions of the IATTC at http://www.iattc.org/ResolutionsActiveENG.htm, places certain obligations on the IATTC's 
members and cooperating non-members. Resolution C-02-03 replaced the 
previous Resolution on Fleet Capacity adopted at the sixty-second 
annual meeting of the IATTC in October 1998 (Resolution C-98-11). 
Resolution C-02-03 established a total vessel capacity limit of 158,000 
cubic meters for all vessels authorized by the IATTC to fish for tuna 
species in the EPO. Each member and cooperating non-member was 
allocated a vessel capacity limit by the IATTC based on historical 
fishing levels in the EPO. The resolution included provisions that, 
among other things, prohibited the entry of new vessels to the EPO 
purse seine fleet, except to replace vessels removed from the Vessel 
Register, and prohibited the increase of the capacity of any existing 
purse seine vessel unless a purse seine vessel or vessels of equal or 
greater capacity is removed from the Vessel Register.
    The proposed rule included further background information, 
including information on the Convention and the IATTC, the 
international obligations of the United States under the Convention, 
and the basis for this action.

New Requirements

    This final rule establishes the following requirements:
    (1) A vessel capacity limit for the U.S. purse seine fleet fishing 
for tuna and operating in the EPO of 31,775 cubic meters.
    When Resolution C-02-03 was adopted, the United States was 
authorized to have a total of 39,228 cubic meters of total well volume 
capacity in the purse seine fishery, as well as a provision that 
allowed up to 32 U.S. purse seine vessels that regularly operate in the 
western and central Pacific Ocean (WCPO) to make one trip per year in 
the EPO without being included on the IATTC Vessel Register. However, 
for reasons prevailing at the time regarding the IATTC's consideration 
of implementing a capacity management regime, the United States chose 
to further limit its fleet capacity by maintaining the U.S. fleet 
capacity limit established under paragraph 1 of Resolution C-98-11, 
which had been replaced by Resolution C-02-03. Thus, on April 12, 2005, 
a final rule was published in the Federal Register (70 FR 19004), 
which, among other things, established a fleet capacity limit of 8,969 
mt. This level reflected the actual level of the fishing capacity of 
the U.S. tuna purse seine fleet operating in the EPO at the time the 
measure was adopted. In August 2002, the U.S. Department of State 
notified the IATTC of the smaller limit that NMFS chose to impose on 
the U.S. fleet. Since that time, the actual level of fishing effort by 
the United States in the EPO has remained well below even this self 
imposed limit. Even so, some U.S. vessels that would like the 
flexibility to participate in the fishery have been prevented from 
doing so. Due to removals and additions of vessels from the Vessel 
Register, currently the United States is authorized by the IATTC to 
have up to 31,775 cubic meters of carrying capacity in the purse seine 
fleet.
    (2) All purse seine vessels, regardless of size, must be on the 
Vessel Register and categorized as active under 50 CFR 
300.22(b)(1)(ii), paragraph (b)(4)(i) in order to be authorized to fish 
for tuna in the IATTC Convention Area.
    This rule removes the exemption that allowed smaller vessels (class 
sizes 1-5) to opportunistically fish for tuna species in the EPO 
without being listed on the IATTC Vessel Register. These vessels will 
now be required to apply to be on the Vessel Register every year if 
they anticipate fishing for tunas; however, there is no associated cost 
for registering to be on the IATTC Vessel Register because there are no 
IATTC observer requirements for vessels under class size 6. This 
regulatory amendment is necessary because the IATTC Resolution on a 
Vessel Register (Resolution C-00-06) requires all vessels to provide 
the IATTC with applicable vessel information and be listed on the IATTC 
Vessel Register in order to be authorized to fish in the IATTC 
Convention Area for species under the purview of the IATTC.
    (3) Purse seine vessels that are class size 5 and under (363 cubic 
meter carrying capacity or less) that primarily fish for coastal 
pelagic species off the west coast of the United States are exempt from 
the frivolous request provisions for active status at 50 CFR 
300.22(b)(4)(ii).
    The frivolous request provisions essentially provide a disincentive 
to vessels that apply to be on the vessel register and do not fish for 
tuna in the EPO by putting them at the bottom of the hierarchy when 
applying to be on the vessel register the following year. These 
provisions are meant to discourage vessel owners who do not have any 
intent to fish in the Convention Area from applying to be on the vessel 
register and occupying assigned capacity. By this final rule, the 
smaller vessels are now exempt from these provisions because it would 
be difficult, if not impossible, for the vessel

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owners to anticipate whether unassociated schools of tuna would come 
within their range off the U.S. west coast during the summer and fall 
months in a given year.
    (4) Capacity measurements must also be reported in cubic meters.
    Including capacity measurements in cubic meters as well as metric 
tons is an administrative change. Since 2000, the IATTC has used well 
volume, in cubic meters, instead of weight, in metric tons, to measure 
the carrying capacities of vessels. Because a well can be loaded with 
different densities of fish, measuring carrying capacity in weight is 
subjective, as a load of fish packed into a well at a higher density 
weighs more than a load of fish packed at a lower density. Using volume 
as a measure of capacity eliminates this variability and standardizes 
measurements. The IATTC staff began collecting capacity data by volume 
in 1999, but has not yet obtained this information for all vessels. For 
vessels for which reliable information on well volume is not available, 
NMFS will calculate the estimated cubic meters of well volume using the 
estimated fish hold capacity at no cost to the vessel owner. This 
calculation will be based on a vessel's landings history in metric tons 
and a conversion factor used by the IATTC (1.1705 cubic meters to 1 
metric ton). Alternatively, vessel owners can opt to have a maritime 
surveyor assess the vessel capacity in cubic meters; however, this is 
not required. Switching to cubic meter measurements will benefit the 
IATTC and make measurements less subjective.
    These revisions ensure that the United States is satisfying its 
obligations under the Tuna Conventions Act and not exceeding its 
allotted capacity in the purse seine fishery. Furthermore, they lessen 
the regulatory constraints on the U.S. industry to allow activity by 
U.S. vessels within the IATTC capacity limits.

Response to Comments

    There was a 30-day public comment period during which comments 
could be submitted electronically via the Federal e-Rulemaking portal, 
at http://www.regulations.gov, or by mail. There was also a public 
hearing on September 9, 2010, from 9 a.m. to 12 p.m. in Long Beach, CA. 
NMFS received three public comments during the comment period. One 
substantive comment, summarized below, from the American Tunaboat 
Association supported the action; one anonymous comment expressed a 
general objection to fishing and this action in particular; and one 
letter submitted by the United States Department of the Interior (DOI) 
stated that the proposed rule had been reviewed by the DOI and the DOI 
had no comments to offer. Three individuals participated in the public 
hearing via teleconference. No substantive issues were discussed during 
the public hearing. Most participants only asked procedural questions 
about the proposed rule and did not make substantive comments for the 
record. No one expressed opposition to the proposed action at the 
public hearing.
    Comment 1: The American Tunaboat Association represents all of the 
U.S. flag Class 6 purse seiners operating in the Pacific Ocean. They 
gave their ``full support'' for the procedures presented in the 
proposed rule. They ``believe that this proposal properly reflects the 
rights of the U.S. purse seine fleet and the U.S. government.'' They 
suggested ``that the NMFS may want to review, or establish alternate 
procedures for the calculation of the cubic meters of capacity for 
purse seine vessels operating in the Eastern Pacific.''
    Response: NMFS acknowledges this comment in support of the action. 
In regards to the suggestion that NMFS review or establish alternate 
procedures for the calculation of the well volume in cubic meters of 
capacity for purse seine vessels, NMFS would like to clarify that 
currently there are two methods NMFS can use to calculate the well 
volume of a vessel in cubic meters. By default, for vessels that do not 
already have reliable information on well volume, NMFS will calculate 
the estimated cubic meters of well volume using the estimated fish hold 
capacity based on a vessel's landings history in metric tons and a 
conversion factor used by the IATTC (1.1705 cubic meters to 1 metric 
ton) at no cost to the vessel owner. If vessel owners prefer, they can 
opt to have a maritime surveyor assess the vessel capacity of the well 
volume in cubic meters; however, this is not necessary.

Changes From the Proposed Rule

    The wording of Sec.  300.22(b)(1), which allows 32 once-per-year 
fishing trips in the ETP for South Pacific Tuna Treaty purse seine 
vessels without being added to the IATTC's Vessel Register, is revised 
in this final rule to clarify that the exception applies to each vessel 
that fishes in compliance with the 90-day limit and other requirements 
of the regulations. The previous wording could have been read to mean 
that the 90-day and other conditions were imposed on the vessels as a 
group. Furthermore, a process is established under which NMFS would 
communicate to the rest of the fleet when all 32 one-time trips have 
been used, so they know that no more trips are available under this 
exception. Although no more than a handful of these 32 trips have been 
used in any calendar year in the past, if all 32 trips were used in a 
single year in the future, due process requires NMFS notify the owners 
of the vessels that would otherwise be eligible to make such trips so 
they know the option is no longer available for the year.
    There are no other changes to the regulatory text of the proposed 
rule.

Classification

    The NMFS Assistant Administrator has determined that this final 
rule is consistent with the Tuna Conventions Act and other all 
applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the IRFA and a summary of the analyses completed to 
support the action. No public comments were received on the IRFA or on 
the economic impacts of the rule generally. A copy of the IRFA is 
available from NMFS (see ADDRESSES).
    A description of the action, why it is being considered, and the 
legal basis for this action are contained in the preamble and SUMMARY 
section of the proposed rule. 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. Other compliance 
requirements are described in the IRFA. This rule is issued under 
authority of the Tuna Conventions Act.

Description of Small Entities to Which the Rule Will Apply

    The total number of affected purse seine vessels is approximated by 
the current number of U.S. purse seine vessels authorized to fish in 
the IATTC Convention Area and the number of vessels that have the 
potential to enter the fishery as a result of this action. As of 
October 2010, there were two U.S purse seine vessels listed on the 
IATTC Vessel Register and authorized to fish in the Convention Area 
totaling 1,194 mt carrying capacity; this does not include small 
vessels which are exempt from the requirement to be listed on the 
Vessel Register. One of the large vessels is class size 6 (greater than 
363 mt carrying capacity) and one is class size 5 (273-363 metric tons 
carrying capacity). In 2009, there were eight small purse seine vessels 
that were exempt from being listed on the IATTC Vessel Register and

[[Page 286]]

made landings of tuna in the EPO; these vessels amount to an estimated 
1,000 mt of carrying capacity are class size 1-2 vessels. Thus, it is 
estimated that the current U.S. vessel capacity, including small 
vessels, is about 2,200 mt. Although this modification provides 
additional flexibility to the U.S. fleet, NMFS believes it is unlikely 
that this action will lead to a substantial increase in effort in the 
purse seine fishery operating in the EPO.
    Increasing the total aggregate carrying capacity of the purse seine 
fleet to 31,775 cubic meters (or about 27,147 mt) allows for about 20 
or fewer large vessels, depending on the size of the individual vessels 
and the number of small vessels participating in the fishery, to be on 
the Vessel Register and participate in the fishery (this estimate is 
based on the average carrying capacity of U.S. vessels operating in the 
WCPO, or 1,487 cubic meters). It is estimated that at most, 10-15 small 
vessels may opt to be on the Vessel Register. It is estimated that the 
majority of the vessels that have the potential to enter the fishery 
are class size 6 vessels based on current and historical participation 
in the EPO and WCPO purse seine fisheries.
    Class size 6 purse seine vessels usually fish outside U.S. waters 
and deliver their catch to U.S. (e.g., American Samoa) or foreign 
(e.g., Ecuador, Mexico, Colombia, Costa Rica) ports. Class size 6 
vessels are required to have 100 percent observer coverage. They are 
categorized as large business entities (revenues in excess of $4 
million per year) and typically generate about 4,000 to 5,000 mt of 
tuna valued at about $4 to $5 million per year. Class size 5 vessels 
are not required to carry an observer. Purse seine vessels class size 5 
or smaller are considered small business entities (revenues equal to or 
less than $4 million per year) and it is estimated that from 2004-2008, 
the majority, if not all, of these smaller vessels had revenues of less 
than $0.5 million per year.
    The final rule will increase the opportunity for all U.S. purse 
seine vessels, regardless of size, to register to be on the IATTC 
Vessel Register and participate in the fishery targeting tunas in the 
EPO. This rule also removes the current exemption that allows smaller 
vessels (class sizes 1-5) to opportunistically fish for tuna species in 
the EPO without being listed on the IATTC Vessel Register. As 
previously mentioned, these vessels will now be required to apply to be 
on the Vessel Register every year if they anticipate fishing for tunas; 
however, there is no associated cost for registering to be on the IATTC 
Vessel Register because there are no IATTC observer requirements for 
vessels under class size 6. Although these smaller vessels are required 
to be listed on the IATTC Vessel Register, they are exempt from the 
frivolous request provisions. The smaller vessels are exempt because it 
would be difficult, if not impossible, for the vessel owners to 
anticipate whether schools of tuna would become available off the U.S. 
west coast during the summer and fall months in a given year. In 
addition, using cubic meters rather than metric tons is not likely to 
negatively affect small business entities as it is an administrative 
change, which will not have any associated costs.

Steps Taken To Minimize the Economic Impact on Small Business Entities

    NMFS compared the effects of the proposed rule to three 
alternatives, including a no action alternative. Alternative 1 would 
have been the same as the preferred alternative; however, the Vessel 
Register list exemption for small purse seine vessels at 50 CFR 
300.22(b)(1)(ii) would not have been removed, and the frivolous request 
regulations would not have been amended. Thus, Alternative 1 would have 
increased the U.S. vessel carrying capacity limit for the purse seine 
fishery operating in the EPO to 31,775 cubic meters, the capacity 
measurements would have been changed to cubic meter measurements, and 
small purse seine vessels for which landings of tuna caught in the 
Convention Area comprise 50 percent or less of the vessel's total 
landings, by weight, for a given calendar year, would have continued to 
be exempt from the requirement to be on the Vessel Register. The 
effects of this alternative on small business entities would have been 
similar to those described for the proposed action, except small purse 
seine vessels would have continued to be exempt from the requirement to 
be on the Vessel Register. If Alternative 1 had been adopted, the 
United States would have maintained U.S. regulations that are less 
consistent with IATTC Resolution C-00-06 because not all vessels 
operating in the Convention Area would be on the IATTC Vessel Register.
    Alternative 2 would have revised the current regulations to give 
NMFS the discretion to revise the current 8,969 mt (10,498 cubic 
meters) vessel capacity limit in the future up to the amount authorized 
under resolutions adopted by the IATTC (currently 31,775 cubic meters) 
based on specific criteria. However, the vessel capacity limit would 
not have been increased upon approval of the action because, as noted 
earlier, there currently appears to be limited demand for additional 
vessel capacity. The capacity measurements would have been amended to 
be in cubic meter measurements and small purse seine vessels for which 
landings of tuna caught in the Convention Area comprise 50 percent or 
less of the vessel's total landings, by weight, for a given calendar 
year, would have continued to be exempt from the requirement to be on 
the Vessel Register. The impacts to small business entities would have 
been similar to those described under Alternative 1 with respect to not 
removing the exemption for small vessels. Alternative 2 did not 
necessarily increase the current carrying capacity in the purse seine 
fishery, so this could have been disadvantageous to large and some 
small business entities that were not exempt from being listed on the 
Vessel Register if the current vessel capacity were reached in a given 
year and they were not able to participate in the fishery due to a lack 
of available capacity.
    Under Alternative 3, the no action alternative, there would have 
been no changes to the current regulations for the purse seine fishery 
which targets tuna species in the EPO. The purse seine vessel capacity 
limit would have remained at 8,969 mt, the capacity measurements would 
have remained in metric tons, and small purse seine vessels for which 
landings of tuna caught in the Convention Area comprise 50 percent or 
less of the vessel's total landings, by weight, for a given calendar 
year, would have continued to be exempt from the requirement to be on 
the Vessel Register. Under this alternative, the United States would 
have maintained U.S. regulations that are less consistent with IATTC 
Resolution C-00-06 because small vessels that occasionally fish for 
tunas would not have been included on the Vessel Register. In addition, 
U.S. regulations would have continued constraining the carrying 
capacity limit beyond what is authorized by the IATTC and would have 
therefore limited the opportunity for U.S. businesses to participate in 
the fishery.
    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.

[[Page 287]]

As part of this rulemaking process, a small entity compliance guide was 
prepared. Copies of this final rule are available from the Southwest 
Regional Office (see ADDRESSES), and the guide will be sent to all 
purse seine vessel owners that have fished for tuna in the IATTC 
Convention area since 2005. The guide and this final rule will be 
available upon request.
    This rule contains a collection-of-information requirement subject 
to the Paperwork Reduction Act (PRA) and which has been approved by OMB 
under control number 0648-0387. Public reporting burden for Vessel 
Register annual notification is estimated to average 35 minutes per 
response, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information. Send comments 
regarding this burden estimate, or any other aspect of this data 
collection, including suggestions for reducing the burden, to NMFS (see 
ADDRESSES) and by e-mail to [email protected], or fax to 
(202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.
    NMFS prepared an Environmental Assessment (EA) on these 
regulations. A copy of the final EA is available from NMFS (see 
ADDRESSES) or at: http://swr.nmfs.noaa.gov.

List of Subjects in 50 CFR Part 300

    Administrative practice and procedure, Antarctica, Canada, Exports, 
Fish, Fisheries, Fishing, Imports, Indians, Labeling, Marine resources, 
Reporting and recordkeeping requirements, Russian Federation, 
Transportation, Treaties, Wildlife.

    Dated: December 28, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR part 300, subpart C is 
amended as follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

Subpart C--Eastern Pacific Tuna Fisheries

0
1. The authority citation for 50 CFR part 300, subpart C, continues to 
read as follows:

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


0
2. Revise the heading for 50 CFR part 300, subpart C, to read as set 
forth above.


Sec.  300.21  [Amended]

0
3. In Sec.  300.21, remove the definition of ``Commission's Yellowfin 
Regulatory Area (CYRA).''

0
4. In Sec.  300.22, revise paragraphs (b)(1), (b)(3), (b)(4)(i)(A), and 
(b)(4)(ii) to read as follows:


Sec.  300.22  Eastern Pacific fisheries recordkeeping and written 
reports.

* * * * *
    (b) * * *
    (1) Exception. Once per year, a vessel that is licensed under the 
South Pacific Tuna Treaty may exercise an option to fish with purse 
seine gear to target tuna in the Convention Area without being listed 
on the Vessel Register, for a fishing trip that does not exceed 90 days 
in duration. No more than 32 of such trips are allowed each calendar 
year. After the commencement of the 32nd such trip, the Regional 
Administrator shall announce, in the Federal Register and by other 
appropriate means, that no more such trips are allowed for the 
remainder of the calendar year. Under Sec.  216.24(b)(6)(iii)(C) of 
this title, vessel assessment fees must be paid for vessels exercising 
this option.
* * * * *
    (3) Vessel information. Information on each commercial fishing 
vessel or CPFV authorized to use purse seine, longline, drift gillnet, 
harpoon, troll, rod and reel, or pole and line fishing gear to fish for 
tuna and tuna-like species in the Convention Area for sale shall be 
collected by the Regional Administrator to conform to IATTC resolutions 
governing the Vessel Register. This information initially includes, but 
is not limited to, the vessel name and registration number; the name 
and business address of the owner(s) and managing owner(s); a 
photograph of the vessel with the registration number legible; previous 
vessel name(s) and previous flag (if known and if any); port of 
registry; International Radio Call Sign; vessel length, beam, and 
moulded depth; gross tonnage, fish hold capacity in cubic meters, and 
carrying capacity in metric tons and cubic meters; engine horsepower; 
date and place where built; and type of fishing method or methods used. 
The required information shall be collected as part of existing 
information collections as described in this and other parts of the 
CFR.
    (4) * * *
    (i) * * *
    (A) The cumulative carrying capacity of all purse seine vessels 
categorized as active on the Vessel Register may not exceed 31,775 
cubic meters in a given year;
* * * * *
    (ii) Frivolous requests for active status.--(A) Except as described 
under paragraph (b)(4)(ii)(B) of this section, requests for active 
status under paragraph (b)(4)(i) of this section will be considered 
frivolous if, for a vessel categorized as active in a given calendar 
year:
    (1) Less than 20 percent of the vessel's total landings, by weight, 
in that same year is comprised of tuna harvested by purse seine in the 
Convention Area; or
    (2) The vessel did not fish for tuna at all in the Convention Area 
in that same year.
    (B) Exceptions. Requests described under paragraph (b)(4)(ii)(A) of 
this section will not be considered frivolous requests if:
    (1) The vessel's catch pattern fell within the criteria described 
in pargraph (b)(4)(ii)(A) as a result of force majeure or other 
extraordinary circumstances as determined by the Regional 
Administrator; or
    (2) The vessel's carrying capacity is 400 st (362.8 mt) or less and 
landings of tuna caught by the vessel in the Convention Area comprise 
50 percent or less of the vessel's total landings, by weight, for a 
given calendar year.
* * * * *
[FR Doc. 2010-33228 Filed 1-3-11; 8:45 am]
BILLING CODE 3510-22-P