[Federal Register Volume 76, Number 83 (Friday, April 29, 2011)]
[Proposed Rules]
[Pages 23964-23968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10451]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 0808061074-81147-01]
RIN 0648-AW66


Fisheries in the Western Pacific; Pelagic Fisheries; Purse Seine 
Prohibited Areas Around American Samoa

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule would establish 75-nautical mile (nm) purse 
seine fishing prohibited areas in the U.S. Exclusive Economic Zone 
(EEZ) around American Samoa. The proposed rule is intended to reduce 
catch competition between purse seine vessels and local trolling and 
longline fleets due to localized stock depletion by purse seine 
fishing, and minimize gear conflicts between the local longline fleet 
and domestic purse seine vessels. Currently, there are two 50 nm areas 
around American Samoa where large fishing vessels (50 ft and longer) 
are prohibited from fishing. The proposed rule would increase the 
distance from shore of these prohibited areas for U.S. purse seine 
vessels only.

DATES: Comments on the proposed rule must be received by June 13, 2011.

ADDRESSES: You may send a comment on this proposed rule, identified by 
0648-AW66, to either of the following addresses:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal http://www.regulations.gov; or
     Mail: Michael D. Tosatto, Regional Administrator, NMFS, 
Pacific Islands Region (PIR), 1601 Kapiolani Blvd., Suite 1110, 
Honolulu, HI 96814-4700.
    Instructions: You must send comments to one of the two addresses

[[Page 23965]]

above to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent to any other address or individual, 
or received after the end of the comment period, may not be considered. 
All comments received are a part of the public record and will 
generally be posted to http://www.regulations.gov without change. All 
personal identifying information (e.g., name, address, etc.) submitted 
voluntarily by the commenter may be publicly accessible. Do not submit 
confidential business information, or otherwise sensitive or protected 
information. NMFS will accept anonymous comments (enter ``N/A'' in the 
required name and organization fields if you wish to remain anonymous). 
Attachments to electronic comments will be accepted in Microsoft Word 
or Excel, WordPerfect, or Adobe PDF file formats only.
    In March 2011, the Western Pacific Fishery Management Council 
(Council) prepared Amendment 3 to the Fishery Ecosystem Plan for 
Pelagic Fisheries of the Western Pacific Region (Pelagics FEP), which 
describes the issues this rule is intended to address. Amendment 3 also 
includes an environmental assessment (EA) of the action proposed in 
this rulemaking. Copies of Amendment 3 and the EA are available from 
http://www.regulations.gov or the Council, 1164 Bishop St., Suite 1400, 
Honolulu, HI 96813, tel 808-522-8220, fax 808-522-8226, http://www.wpcouncil.org.

FOR FURTHER INFORMATION CONTACT: Adam Bailey, Sustainable Fisheries 
Division, NMFS PIR, 808-944-2248.

SUPPLEMENTARY INFORMATION: Pelagic fisheries in the U.S. western 
Pacific are managed under the Pelagics FEP. The Council prepared 
Amendment 3 to the Pelagics FEP to address their concerns over 
potential localized stock depletion, and catch competition between 
purse seine vessels and the local longline and trolling fleets in the 
American Samoa Archipelago. This proposed rule would implement the 
Council's recommendations.
    Because 2007 is the most recent year for which we have the most 
comprehensive information about purse seine activity in the EEZ around 
American Samoa, 2007 is used as the baseline year for analyzing the 
potential effects of this proposed rule. Although some more recent 
purse seine fishery information exists and more recent troll and 
longline fishery information beyond 2008 is available, the more recent 
information does not indicate that the areas fished, fishing effort, or 
landings differed substantially from those analyzed. Thus, inclusion of 
more recent information would not change the Council's analyses or 
management objectives. More recent troll and longline fishery 
information is included here for completeness.
    Local pelagic trolling vessels target skipjack and yellowfin tunas 
in EEZ waters around American Samoa. These vessels are usually small 
(about 30 ft (9 m) long), fiberglass or aluminum, outboard-powered, 
twin-hulled ``alia.'' Alias are not designed for traveling long 
distances from shore or holding large quantities of fish and are, 
therefore, limited to day trips in nearshore areas (less than 50 nm (93 
km) from shore). From 1982 to 2008, an average of 25.5 metric tons (mt) 
(56,218 lb) of skipjack tuna and 11 mt (24,251 lb) of yellowfin tuna 
were caught annually by commercial trolling alia vessels in waters 
around American Samoa. These vessels may use other fishing methods, 
such as bottomfish fishing, during any given fishing trip.
    Local pelagic longline vessels target albacore in the waters around 
American Samoa. Longline vessels include alias and larger monohull 
vessels, and range in length from 25 ft (8 m) to over 90 ft (27 m). The 
smaller longline alias usually fish within 50 nm of shore, and large 
longline vessels (50 ft (15.2 m) and longer) travel throughout the EEZ 
around American Samoa and beyond to fish. Longline gear is deployed in 
the morning, left to fish, and brought back on board starting in the 
late afternoon extending into the following morning. The main line 
averages 40 nm (74 km) in length, is deployed horizontally with floats 
at the surface, and drifts with the current. Individual vessels usually 
set one line per day. In 2008, large longline vessels made over 4,500 
sets, and landed over 3,500 mt (7,716,181 lb) of albacore, and over 150 
mt (330,693 lb) of non-target skipjack tuna.
    In 2002, large vessel prohibited areas were established to prohibit 
large vessels from fishing in the EEZ within approximately 50 nm (93 
km) around the islands of American Samoa (67 FR 4369, January 30, 
2002). That measure was implemented to prevent gear interactions 
between small and large pelagic fishing vessels, and to reduce the 
chances of fish density and catch rate reductions within fishing 
grounds accessible to the small-scale troll and longline fleets. 
Reductions in fish density and catch rate could cause small vessels to 
travel farther to maintain catch rates, resulting in lost revenue due 
to increased expenses and possible safety-at-sea issues if vessels fish 
farther from port and for longer durations.
    Like the local troll vessels, purse seine vessels also target 
skipjack tuna. Purse seine vessels are much larger, more sophisticated 
and more efficient. Tunas, along with other animals, such as pelagic 
fishes and sea turtles, tend to congregate to naturally-occurring 
floating objects in the ocean, such as mats of flotsam, logs, or 
garbage, which fishermen refer to as ``fish aggregating devices'' 
(FADs). Roughly half of historical domestic purse seine sets in the 
WCPO are made on FADs. FADs can be natural, with or without artificial 
augmentation such as floats, markers, or electronics, or man-made. One 
purse seine vessel can deploy many FADs to drift around the ocean, 
until sufficient quantities of fish are accumulated to them. Purse 
seines are then deployed near or around the FADs. Purse seine vessels 
currently operating in the western and central Pacific Ocean (WCPO) 
range in length from 191 to 293 ft (58 to 98 m), with an average length 
of 225 ft (68 m) and an average gross registered tonnage of 1,341 mt. 
Fish carrying capacities range from approximately 800 to 1,500 mt (1.8 
to 3.3 million lb) per vessel. Recent U.S. purse seine catches of 
skipjack tuna in the WCPO increased from 60,600 mt (133 million lb) in 
2007 to 242,000 mt (533 million lb) in 2009.
    Purse seine fishing effort in American Samoa was sporadic from 1997 
to 2007, with skipjack tuna catches ranging from zero to 152.2 mt 
(335,522 lb) and averaging 40.9 mt (90,125 lb) annually over this 
period. Catches of yellowfin tuna were smaller, ranging from zero to 
20.8 mt (45,856 lb), and averaging 7.4 mt (16,314 lb) annually from 
1997 to 2007. Conditions for purse seine fishing in EEZ waters around 
American Samoa are less favorable than other areas, and the average 
skipjack tuna catch per set is approximately 2.4 mt (5,308 lb). Most 
domestic purse seine fishing is conducted outside the EEZ around 
American Samoa, to the north and northwest.
    Nevertheless, the Western and Central Pacific Fishery Commission 
has closed the two major high seas pockets in the western and central 
Pacific Ocean to all purse seine fishing, and the Pacific Island 
Parties to the Nauru Agreement are reportedly imposing increasingly 
stringent measures on distant water fishing nations as a condition of 
licensing, including bans on high seas fishing in certain areas. 
Accordingly, the Council is concerned about possible impacts, such as 
localized fish stock depletion, on other pelagic fisheries if U.S. 
purse seine vessels were to increase their activity in the EEZ around 
American Samoa near areas

[[Page 23966]]

traditionally fished by pelagic troll and longline vessels. Localized 
fish depletion occurs when a stock in a small area is reduced by the 
removal of large amounts of fish, thereby temporarily depleting the 
availability of the stock to fishing activity or other predators in 
that area. Research suggests that localized depletion may occur when 
purse seine fishing activity competes with small-scale fishing 
operations, triggering catch competition for a single resource in a 
limited area.
    While targeting skipjack tuna, particularly around fish aggregating 
devices, purse seine vessels also catch juvenile yellowfin and bigeye 
tuna. Bigeye tuna are currently subject to overfishing, and the harvest 
of juvenile bigeye by purse seines contributes to recruitment 
overfishing. The impacts from an increase in juvenile catch of bigeye 
tuna in the action area could eventually reduce the number of mature 
fish in the population, thereby decreasing the number of fish 
reproduced. This reduction could also decrease the future availability 
of adult fish for fisheries that target adult bigeye tuna.
    This proposed rule would create new prohibited areas only for purse 
seine vessels (see Fig. 1). Due to purse seine vessels' large skipjack 
tuna harvests, coupled with their inability to target only mature 
skipjack and potential impact on juvenile bigeye tuna, the Council is 
concerned that purse seine fishing in the EEZ around American Samoa has 
the potential to negatively impact the viability of American Samoa-
based small-scale troll fishery. The proposed purse seine fishing 
prohibited areas are intended to reduce catch competition between purse 
seine vessels and the small-scale pelagic fleets, and provide some 
geographical separation between large longline and purse seine fishing 
sectors.
    Large-scale longline and purse seine gear may drift and interfere 
with fishing operations; therefore, this proposed rule would create 
additional 25 nm (46 km) areas of exclusion for purse seine fishing to 
minimize gear conflicts. This proposed rule would prohibit all purse 
seine fishing within 75 nm (139 km) of American Samoa. All other 
measures currently applicable to the purse seine fishery would remain 
unchanged, including, but not limited to, the existing 50-nm large 
vessel prohibited areas, vessel and gear marking requirements, 
reporting requirements, vessel monitoring system (VMS), and the use of 
safe sea turtle handling techniques.
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    This proposed rule is intended to further the intent of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) by ensuring the sustained participation of American 
Samoa's small troll and pelagic longline fishing fleets in the pelagic 
fisheries, along with

[[Page 23967]]

the continued operations of the domestic purse seine fleet in the EEZ 
around American Samoa.
    NMFS notes that U.S. purse seine catches from the EEZ around 
American Samoa have been relatively small compared to the high seas and 
other areas. Accordingly, NMFS specifically invites public comments 
addressing whether the action is ``necessary and appropriate'' 
according to Magnuson-Stevens Act section 303(a)(1) to accomplish its 
identified conservation and management objectives, and the state of the 
science supporting the action.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the Pelagic FEP, other provisions of the Magnuson-
Stevens Act, and other applicable laws, subject to further 
consideration after public comment.
    The Chief Council for Regulation of the Department of Commerce 
certified to the Chief Council for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities, 
as follows:
    ``A description of the reasons why action by the agency is being 
considered and a statement of the objectives of, and legal basis for 
this rulemaking are found in the preamble to the proposed rule. There 
are no additional recordkeeping, reporting, or compliance requirements. 
There are no rules which may duplicate, overlap, or conflict with the 
proposed rule.
    This rule would affect U.S. purse seine vessels licensed under the 
South Pacific Tuna Treaty. As of 2007, the last year when a complete 
data set was available, the fleet of U.S. purse seine vessels licensed 
under the South Pacific Tuna Treaty consisted of 21 vessels at the end 
of the 2007 calendar year, with only five of these vessels landing fish 
caught in the U.S. EEZ around American Samoa. By comparison, 37 U.S. 
purse seine vessels were licensed in the Pacific in 2008, 39 in 2009, 
and 37 in 2010. However, we have no information about the number of 
purse seiners that were active in the EEZ around American Samoa.
    NMFS internal data reflect that most or all of the businesses that 
operated the 21 vessels were large entities. The average 1998 gross 
revenue per purse seine vessel was $4.7 million, equivalent to $6.1 
million in 2009 dollars. Therefore, most or all of the 38 purse seine 
licenses in 2009-10 were held by large entities. NMFS recognizes that 
newly-permitted vessels may experience lower revenues during the start-
up period, and may constitute small entities under the RFA, but it is 
expected that the purse seine provisions of the rule will only affect 
large entities. However, it is possible that only one or a few of these 
fish harvesting businesses met the criteria of small entities; that is, 
they are independently owned and operated and not dominant in their 
fields of operation, and have annual receipts of no more than $4.0 
million. Since it is not possible to determine with any certainty how 
many small purse seine entities, if any, landed fish in American Samoa 
in 2007, no attempt is made here to determine whether a substantial 
number of small entities would be impacted by the proposed rule. 
Instead, this certification is based on a finding that the proposed 
rule would not have significant economic impacts on affected entities.
    The proposed action is expected to benefit the local troll fleet by 
reducing the likelihood of catch competition and gear conflict. Because 
the proposed action is not expected to alter the current fishing 
practices of the troll fleet, it will not have a significant economic 
impact on the regulated entities.
    The proposed action would extend the prohibited fishing areas for 
U.S. purse seine vessels from 50 to 75 nautical miles (nm) from shore. 
In 2006, (no purse seine vessels caught fish in 2007), five U.S. purse 
seine vessels landed a total of 2.7 metric tons (mt) of skipjack tuna 
and 6.3 mt of yellowfin tuna harvested from inside the U.S. EEZ around 
American Samoa, yielding an average of 0.54 mt of skipjack tuna and 
1.26 mt of yellowfin tuna per vessel. Furthermore, a total of 43,335 mt 
of skipjack tuna and 8,821 mt of yellowfin tuna (with some bigeye tuna 
mixed in) were landed in Pago Pago in 2007 by 11 U.S. vessels averaging 
3,940 mt ($4.73 million) per vessel of skipjack tuna and 802 mt 
($962,000) per vessel of yellowfin tuna. Thus, gross receipts for 
skipjack and yellowfin tunas from the entire EEZ, of which the proposed 
25-nm extended area is a subset, represented only 0.01 percent of total 
skipjack tuna landings, and a potential average loss of $473 per vessel 
(based on a price of $1,200 per mt) if this proposed rule were to 
prevent those landings. For yellowfin tuna, gross receipts represented 
only 0.16 percent of total landings and this rule, if implemented, 
could reduce gross receipts by $1,540 per vessel, or by a miniscule 
amount, necessarily making gross receipts from the extended area also 
miniscule if this proposed rule were to prevent those landings. 
Therefore, gross receipts and potential losses as a result of this rule 
from the extended area are negligible (less than or equal to $473 for 
skipjack and $1,540 for yellowfin). Although NMFS used the best and 
most recent data available on EEZ catch for 2006, NMFS also looked at 
an 11-year window from 1997-2007 and chose the two years, 1999 and 
2001, with the highest EEZ catch by species, as representative of catch 
levels for purposes of this analysis. In 2001, 152.19 mt ($182,628) of 
skipjack tuna (15 vessels) and for 1999, 20.8 mt ($24,960) of yellowfin 
tuna (10 vessels) were harvested from the EEZ. For skipjack tuna, these 
average annual landings would equate to 10.1 mt per vessel, and 2.1 mt 
per vessel for yellowfin tuna.
    Purse seine vessels are not likely to be negatively affected 
because approximately 19 percent of fishing effort (assuming an even 
effort distribution) would be displaced outside the proposed purse 
seine prohibited area to remaining open areas of the EEZ around 
American Samoa. Based on historical fishing effort, this means that 
under the proposed rule, 3.2 fishing days per year of effort that 
ordinarily would occur inside the proposed purse seine prohibited area 
could be displaced, and those purse seine vessels may incur more costs 
in terms of fuel and travel time. However, any impacts would be 
expected to be minimal due to historically low amounts of participation 
in the EEZ around American Samoa.
    Additionally, there are no disproportionate economic impacts 
between large and small entities. Fishing activities for small trollers 
will not be altered under the proposed rule and these small entities 
may benefit from reduced catch competition and localized depletion. 
Therefore, for the reasons stated above, there will be no 
disproportionate effect on the profits, revenues, or costs on small 
entities relative to large entities.''
    As a result, an initial regulatory flexibility analysis is not 
required and none has been prepared.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 665

    Administrative practice and procedure, American Samoa, Fishing, 
Purse seine.


[[Page 23968]]


    Dated: April 26, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR chapter VI is 
proposed to be amended as follows:

PART 665--FISHERIES IN THE WESTERN PACIFIC

    1. The authority citation for 50 CFR part 665 continues to read as 
follows:

    Authority:  16 U.S.C. 1801 et seq.

    2. In Sec.  665.800, add a definition of ``Purse seine'' in 
alphabetical order to read as follows:


Sec.  665.800  Definitions.

* * * * *
    Purse seine means a floated and weighted encircling net that is 
closed by means of a drawstring threaded through rings attached to the 
bottom of the net.
* * * * *
    3. In Sec.  665.802, add a new paragraph (n) to read as follows:


Sec.  665.802  Prohibitions.

* * * * *
    (n) Use a purse seine to fish within a purse seine fishing 
prohibited area in violation of Sec.  665.817, except as allowed 
pursuant to an exemption issued under Sec.  665.17.
* * * * *
    4. In Sec.  665.817, add a new paragraph (d) to read as follows:


Sec.  665.817  American Samoa pelagic fishery area management.

* * * * *
    (d) Purse seine prohibited areas. Purse seine fishing is prohibited 
in the American Samoa purse seine prohibited areas as defined in 
paragraphs (d)(1) and (d)(2) of this section.
    (1) Swains Island (AS-3). The purse seine fishing prohibited area 
around Swains Island consists of the waters of the EEZ around American 
Samoa enclosed by straight lines connecting the following coordinates:

------------------------------------------------------------------------
             Point                   S. latitude         W. longitude
------------------------------------------------------------------------
AS-3-A.........................  11[deg]12[min]       172[deg]18[min]
AS-3-B.........................  12[deg]12[min]       169[deg]56[min]
------------------------------------------------------------------------
and from Point AS-3-A northward and southward along longitude
 172[deg]18[min] W. until intersecting the U.S. EEZ boundary with
 Tokelau and Samoa, respectfully, and from Point AS-3-B northward along
 longitude 169[deg]56[min] W. until intersecting the U.S. EEZ boundary
 with Tokelau, and westward along latitude 12[deg]12[min] S. until
 intersecting the U.S. EEZ boundary with Samoa.
------------------------------------------------------------------------

    (2) Tutuila Island, Manua Islands, and Rose Atoll (AS-4). The purse 
seine fishing prohibited area around Tutuila Island, the Manua Islands, 
and Rose Atoll consists of the waters of the EEZ around American Samoa 
enclosed by straight lines connecting the following coordinates:

------------------------------------------------------------------------
             Point                   S. latitude         W. longitude
------------------------------------------------------------------------
AS-4-A.........................  13[deg]05[min]       167[deg]01[min]
AS-4-B.........................  15[deg] 36[min]      167[deg] 01[min]
------------------------------------------------------------------------
and from Point AS-4-A westward along latitude 13[deg] 05' S. until
 intersecting the U.S. EEZ boundary with Samoa, and from Point AS-4-B
 westward along the latitude 15[deg] 36' S. until intersecting the U.S.
 EEZ boundary with Samoa.
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[FR Doc. 2011-10451 Filed 4-28-11; 8:45 am]
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