[Federal Register Volume 76, Number 190 (Friday, September 30, 2011)]
[Proposed Rules]
[Pages 60790-60798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25275]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 110620342-1597-02]
RIN 0648-BA66


International Fisheries; Pacific Tuna Fisheries; Fishing 
Restrictions in the Eastern Pacific Ocean

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations under the Tuna Conventions Act of 
1950, as amended, (Act) to implement decisions of the Inter-American 
Tropical Tuna Commission (IATTC). At its Eighty-second Meeting in July 
2011, the IATTC adopted a number of resolutions, some of which require 
rulemaking to implement domestically in the United States. This 
proposed rule implements three of these decisions: the Resolution on 
Tuna Conservation 2011-2013 (C-11-01), the Resolution Prohibiting 
Fishing on Data Buoys (C-11-03), and the Resolution Prohibiting the 
Retention of Oceanic Whitetip Sharks (C-11-10). This action is 
necessary for the United States to satisfy its obligations as a member 
of the IATTC.

DATES: Comments must be submitted in writing by October 17, 2011. A 
public

[[Page 60791]]

hearing will be held at 9 a.m. to 12 p.m. PDT, October 17, 2011, in 
Long Beach, CA.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2011-0160-0001, by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: http://www.regulations.gov. To submit comments via the e-Rulemaking Portal, 
first click the ``submit a comment'' icon, then enter NOAA-NMFS-2011-
0160-0001 in the keyword search. Locate the document you wish to 
comment on from the resulting list and click on the ``Submit a 
Comment'' icon on the right of that line.
     Mail: Submit written comments to Heidi Hermsmeyer, NMFS 
Southwest Regional Office, 501 W. Ocean Blvd., Suite 4200, Long Beach, 
CA 90802. Include the identifier ``0648-BA66'' in the comments.
     Fax: 562-980-4047; Attn: Heidi Hermsmeyer.
     Public hearing: The public is welcome to attend a public 
hearing and offer comments on this rule on October 17, 2011 from 9 a.m. 
to 12 p.m. at 501 W. Ocean Boulevard, Suite 4200, Long Beach, CA 90802. 
The public may also participate in the public hearing via conference 
line: 888-282-9635; participant passcode: 11671.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent by any other method, 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 for public viewing on http://www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) submitted voluntarily by the 
sender will 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 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.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to NMFS SWR and by e-mail to [email protected], or faxed to (202) 395-7285. Copies of the draft 
Regulatory Impact Review (RIR) and other supporting documents are 
available at http://swr.nmfs.noaa.gov/.

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

SUPPLEMENTARY INFORMATION:

Background on the IATTC

    The 1949 Convention for the Establishment of an Inter-American 
Tropical Tuna (1949 Convention) entered into force in May 1949. The 
full text of the 1949 Convention is available at: http://www.iattc.org/PDFFiles/IATTC_convention_1949.pdf. The 1949 Convention focuses on 
the conservation and management of highly migratory species (HMS) and 
the management of fisheries for HMS, and has provisions related to non-
target, associated, and dependent species in such fisheries. In 2003, 
the IATTC adopted a resolution that approved the Convention for 
Strengthening of the Inter-American Tropical Tuna Commission 
Established by the 1949 Convention Between the United States of America 
and the Republic of Costa Rica (Antigua Convention), a major revision 
of the 1949 Convention. The Antigua Convention includes various updates 
to the process and principles governing the international management of 
the HMS fisheries in the eastern Pacific Ocean (EPO), including a 
mandate to take a more ecosystem-based approach to management. The 
Antigua Convention entered into force on August 27, 2010, and may be 
found at: http://www.iattc.org/PDFFiles2/Antigua_Convention_Jun_2003.pdf. The United States has not ratified, and is not a party to, 
the Antigua Convention and continues to operate under the 1949 
Convention. The IATTC Convention Area (Convention Area) includes the 
waters bounded by the coast of the Americas, the 50[deg] N. and 50[deg] 
S. parallels, and the 150[deg] W. meridian.
    The members of the IATTC are Belize, Canada, China, Chinese Taipei, 
Colombia, Costa Rica, Ecuador, El Salvador, European Union, France, 
Guatemala, Japan, Kiribati, Korea, Mexico, Nicaragua, Panama, Peru, 
United States, Vanuatu, and Venezuela. Currently, the only cooperating 
non-member is the Cook Islands. Cooperating non-members are identified 
by the IATTC on a yearly basis and are expected to implement the 
decisions of the IATTC in the same manner as members.

International Obligations of the United States Under the Convention

    As a Contracting Party to the 1949 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. 951-961) authorizes the Secretary of 
Commerce, after approval of IATTC recommendations by the Secretary of 
State, to promulgate such regulations as may be necessary to carry out 
the obligations of the United States. The authority to promulgate 
regulations has been delegated to NMFS.

IATTC Decisions in 2010 and 2011

    At its 81st Meeting, in September 2010, the IATTC adopted three 
recommendations. The government of China objected to all formal 
resolutions that were proposed for political reasons beyond the scope 
of the IATTC. Consensus by all members of the IATTC is required to 
adopt a formal IATTC resolution, thus the remaining 19 members of the 
IATTC agreed to adopt recommendations in lieu of formal resolutions. 
The following three recommendations were adopted: (1) Recommendation on 
Tuna Conservation 2011-2013 (C-10-01); (2) Recommendation on Seabirds 
(C-10-02); and (3) Recommendation Prohibiting Fishing on Data Buoys (C-
10-03). NMFS published an Advanced Notice of Proposed Rulemaking (ANPR) 
on July 7, 2011 (76 FR 39808), to request public comment on 
implementing two of these recommendations (i.e., C-10-01 and C-10-03), 
but did not receive any public comments. Meanwhile, the IATTC convened 
its 82nd Meeting in July 2011 and adopted by consensus twelve new 
resolutions, three of which replaced the previous non-binding 
recommendations with binding resolutions, and included some 
modifications to the language in the recommendations. Thus, the 
information regarding the tuna conservation measure and data buoy 
measure in this proposed rulemaking has been slightly modified from 
what was presented in the ANPR. This proposed rule would implement the 
following three resolutions adopted by the IATTC at the 82nd Meeting: 
The Resolution on a Multiannual Program for the Conservation of Tuna in 
the Eastern Pacific Ocean in 2011-2013 (C-11-01), the Resolution 
Prohibiting Fishing on Data Buoys (C-11-03), and the Resolution on the 
Conservation of Oceanic Whitetip Sharks Caught in Association with 
Fisheries in the Antigua Convention Area (C-11-10). All of the other 
resolutions that were

[[Page 60792]]

adopted in 2011 either do not require further rulemaking or will be 
implemented in a separate subsequent rulemaking. All active resolutions 
and recommendations are available on the following IATTC Web site: 
http://www.iattc.org/ResolutionsActiveENG.htm.
    Resolution C-11-01 is very similar to the tuna conservation measure 
adopted by the IATTC in 2009 (Resolution C-09-01). NMFS implemented 
Resolution C-09-01 at 50 CFR 300 subpart C (74 FR 61046, November 23, 
2009). Similar to Resolution C-09-01, the main objectives of Resolution 
C-11-01 are to not increase the fishing mortality of yellowfin tuna 
(Thunnus albacares) and to reduce the fishing mortality of bigeye tuna 
(Thunnus obesus) in the Convention Area over the period 2011-2013. The 
measures are based in part on the recommendations and analysis of IATTC 
scientific staff and the 2011 stock assessments of bigeye and yellowfin 
tuna completed by IATTC staff. The differences between Resolution C-11-
01 and Resolution C-09-01 that this rule, if made effective, would 
implement are: (1) A change to the duration of the purse seine closure 
of the Convention Area in 2011 and continuation of that closure period 
in 2012 and 2013; (2) continuation of the high seas time/area purse 
seine closure in 2012 and 2013; (3) continuation of the annual bigeye 
tuna quotas in the longline fishery for vessels over 24 meters in 
length in 2012 and 2013; and (4) renewal of the tuna catch retention 
requirements in the purse seine fishery. In addition, NMFS is proposing 
to give vessel owners the option of choosing between the two Convention 
Area purse seine closure periods that are listed in Resolution C-11-01 
for each applicable year, rather than requiring the entire U.S. fleet 
to adhere to the later closure period as was implemented in 2009 and 
2010. It appears that most, if not all, other members of the IATTC are 
implementing the closure period in this fashion since it provides 
fleets with greater flexibility.
    The Resolution Prohibiting Fishing on Data Buoys (Resolution C-11-
03) was adopted to reduce vandalism and damage to data buoys caused by 
fishing vessels that often leads to loss of data critical to weather 
forecasting, tsunami warnings, search and rescue efforts, and research 
of the marine environment. Resolution C-11-03 defines data buoys as 
floating devices, either drifting or anchored, that are deployed by 
governmental or recognized scientific organizations or entities for the 
purpose of electronically collecting environmental data, and not in 
support of fishing activities. The resolution (1) Prohibits fishing 
vessels from interacting with data buoys in the Convention Area, 
including, but not limited to, encircling the buoy with fishing gear, 
tying up to or attaching the vessel, fishing gear, or any part or 
portion of the vessel, to a data buoy, or cutting its anchor line; (2) 
prohibits longline and purse seine fishing vessels from deploying gear 
within one nautical mile of an anchored data buoy in the Convention 
Area; (3) prohibits fishing vessels from taking on board a data buoy, 
unless specifically authorized or requested to do so by a member or 
cooperating non-member of the IATTC or owner responsible for that buoy; 
(4) encourages fishing vessels operating in the Convention Area to keep 
watch for drifting data buoys at sea and to take all reasonable 
measures to avoid fishing gear entanglement or directly interacting in 
any way with drifting data buoys; and (5) requires fishing vessels that 
become entangled with a data buoy to remove the entangled fishing gear 
with as little damage to the data buoy as possible. If a scientific 
research program notifies the IATTC, it may operate a fishing vessel 
within one nautical mile of a data buoy provided the vessel does not 
interact with the data buoy. The resolution also encourages members and 
cooperating non-members of the IATTC to require their fishing vessels 
to report to them all entanglements and provide the date, location, and 
nature of the entanglement, along with any identifying information on 
the data buoy.
    The Resolution on the Conservation of Oceanic Whitetip Sharks 
Caught in Association with Fisheries in the Antigua Convention Area 
(Resolution C-11-10) was adopted to reduce the fishing pressure on 
oceanic whitetip sharks (Carcharhinus longimanus) which are caught 
incidentally and targeted in some oceanic and coastal fisheries. During 
the IATTC's 82nd Meeting, IATTC scientific staff showed estimates 
illustrating a dramatic decline in the catch per unit of effort of this 
species, which may be indicative of a decline in the population of this 
species in the EPO. The measure requires members and cooperating non-
members of the IATTC with vessels operating in the Convention Area to 
(1) prohibit retaining onboard, transshipping, landing, storing, or 
offering for sale any part or whole carcass of oceanic whitetip sharks; 
(2) require vessels to promptly release unharmed, to the extent 
practicable, whitetip sharks when brought alongside the vessel; and (3) 
record inter alia, through the observer programs, the number of 
discards and releases of oceanic whitetip sharks with indication of 
status (dead or alive) and report it to the IATTC.

Proposed Action

Changes to Tuna Conservation Measures for 2011-2013

    NMFS is proposing to change the duration of the closure period of 
the Convention Area for tuna purse seine vessels class sizes 4-6 (182 
metric tons carrying capacity or greater) in 2011 from 73 days, which 
was established under Resolution C-09-01, to 62 days, which was 
established under Resolution C-11-01, and continue the closure period 
of 62 days in the years 2012 and 2013. The shorter closure period was 
agreed to by the members of the IATTC based on the 2011 bigeye and 
yellowfin tuna stock assessments. NMFS is also proposing to give 
applicable purse seine vessel owners the ability to choose between the 
two possible closure periods established by the IATTC for 2012 and 
2013. In 2009, 2010, and 2011, NMFS chose the later closure period for 
the entire U.S. purse seine fleet based on historical fishing 
operations; however, other members of the IATTC are allowing vessel 
owners to choose between the two closure periods to give fleets greater 
flexibility. In order give comparable flexibility to the U.S. fleet, 
NMFS proposes to provide this choice to the U.S. fleet as well in 2012 
and 2013. Therefore, NMFS proposes that the vessel owner of a purse 
seine vessel that is subject to these requirements would be required by 
July 1, 2012, and July 1, 2013, to notify the NMFS Southwest Regional 
Administrator of his or her choice of closure period for the year. The 
two options would be July 29 to September 28, or November 18 to January 
18 of the following year for 2012 and 2013. This option would not be 
available for 2011 since the earlier closure period has already passed. 
If a vessel owner fails to notify the Regional Administrator of his or 
her choice by the July 1 deadline, the vessel would be subject to the 
later closure period (November 18 to January 18 of the following year) 
by default.
    NMFS is also proposing to continue the high seas time/area closure 
for tuna purse seine vessels class sizes 4-6 in 2012 and 2013. The area 
consists of the area bounded at the east and west by 96[deg] and 
110[deg] W. longitude and bounded at the north and south by 4[deg] N. 
and 3[deg] S. latitude. The high seas time/area closure was originally 
established under Resolution C-09-01 and has been in place since 2009.

[[Page 60793]]

    In addition, NMFS is proposing to extend in 2012 and 2013 the 
annual bigeye tuna quota of 500 metric tons applicable to the bigeye 
catch in the Convention Area by U.S. longline vessels over 24 meters in 
length in accordance with the requirements in Resolution C-11-01. This 
quota has been in place since 2009 and has never been reached or 
exceeded. The members of the IATTC agreed to continue the bigeye tuna 
quotas in the Convention Area after review and analysis of the 2011 
bigeye and yellowfin tuna stock assessments.
    NMFS is also proposing to renew the tuna retention program that 
requires all bigeye, skipjack, and yellowfin tuna caught by a U.S. 
purse seine vessel of class sizes 4-6 be retained on board and landed, 
except fish deemed unfit for human consumption for reasons other than 
size and the single exemption of this would be the final set of a trip, 
when there may be insufficient well space remaining to accommodate all 
the tuna caught in that set. This measure is meant to reduce discards 
of juvenile (undersized) bigeye, yellowfin, and skipjack tunas that are 
often caught by purse seine vessels that fish on fish aggregating 
devices (FADs), reduce overall catches of bigeye tuna, and provide an 
incentive to fishermen to avoid large catches of juvenile bigeye tuna. 
The catch retention requirement would go into effect on January 1, 
2012, and remain in effect unless the members of the IATTC agree to 
remove the measure in 2013 or beyond. NMFS is proposing to not include 
an expiration date for this requirement because NMFS expects it to be 
included by the IATTC in future tuna conservation and management 
resolutions. If a decision is made to remove the measure, NMFS will 
take appropriate action to remove the regulation.

Prohibition on Fishing Around Data Buoys

    NMFS is proposing to prohibit all U.S. fishing vessels that are 
used to target HMS in the Convention Area from interacting with data 
buoys, according to the definition of ``interaction'' included in 
Resolution C-11-03. According to the resolution, interactions include, 
but are not limited to, encircling the buoy with fishing gear, tying up 
to or attaching the vessel, fishing gear, or any part or portion of the 
vessel to a data buoy, or cutting its anchor line. In addition, the 
regulations would, if adopted, prohibit all U.S. longline and purse 
seine vessels that are used to fish for HMS in the Convention Area from 
using fishing gear within one nautical mile of an anchored data buoy. 
The one-nautical-mile distance would be measured from the data buoy to 
the nearest portion of the vessel or items associated with the vessel, 
such as gear or watercraft deployed by the fishing vessel, to the data 
buoy. These measures would only apply to data buoys that have been 
identified to the IATTC. In addition, the Web site of NOAA's National 
Data Buoy Center (NDBC) at http://www.ndbc.noaa.gov/ contains detailed 
information regarding data buoys maintained by NDBC and its partner 
organizations, including location and owner information. The Web site 
of the Observing System Monitoring Center, maintained by NOAA's Office 
of Climate Observations at http://osmc.noaa.gov/Monitor/OSMC/OSMC.html, 
also provides information regarding the location of data buoys. The 
Western and Central Pacific Fisheries Commission (WCPFC) also adopted a 
similar measure in December 2009 (CMM 2009-05) and issued an 
information package on May 18, 2010, that provides sample information 
on the type of data buoys that may be encountered by fishermen. The 
information package is available on the WCPFC's Web site at http://www.wcpfc.int/conservation-and-management-measures. The prohibition 
would not apply if the fishing vessel was operated as part of a 
scientific research program that notified the IATTC of its intent, or 
was conducting work on behalf of the IATTC.
    Other proposed requirements include prohibiting U.S. fishing 
vessels used to target HMS in the Convention Area from taking onboard a 
data buoy unless specifically authorized or requested to do so by the 
entity responsible for the data buoy, requiring U.S. fishing vessels 
used for fishing for HMS in the Convention Area that become entangled 
with data buoys to remove the entangled fishing gear with as little 
damage to the data buoy as possible, and requires vessels to take all 
reasonable measures to avoid fishing gear entanglement or directly 
interacting in any way with drifting data buoys. NOAA has also 
previously issued news releases asking the fishing, shipping, and 
boating communities to protect data buoys voluntarily by taking 
specific steps, such as: Never boarding or tying up to a buoy; never 
fishing around or under a buoy; and giving the buoy a wide berth to 
avoid entangling the mooring or other equipment suspended from the 
buoy--500 yards for vessels which are trailing gear and at least 20 
yards for all others.
    NMFS has determined that implementation of the provision in 
Resolution C-11-03 encouraging IATTC members to require fishing vessels 
to report all entanglements with data buoys in the Convention Area is 
not necessary at this time. Implementation and enforcement of the other 
provisions as specified in this proposed rule and the information 
provided in NOAA press releases, as specified in the paragraph above, 
should adequately reduce the risk of such entanglements.

Conservation of Oceanic Whitetip Sharks

    NMFS is proposing to prohibit all U.S. vessels targeting HMS in the 
Convention Area from retaining onboard, transshipping, landing, 
storing, selling, or offering for sale any part or whole carcass of 
oceanic whitetip sharks. All applicable U.S. vessels would also be 
required to release unharmed, to the extent practicable, oceanic 
whitetip sharks when brought alongside the vessel. NMFS has determined 
that the relevant observer programs already meet the requirements for 
data collection that are included in Resolution C-11-10. Members and 
cooperating non-members of the IATTC are required to implement 
Resolution C-11-10 by January 1, 2012.

Technical Correction to Vessel Capacity Regulations

    NMFS is also proposing to make a technical change to 50 CFR 
300.22(b)(7)(ii) to reflect changes made in a previous rulemaking on 
vessel capacity. The total capacity limitation for the U.S. purse seine 
fishery in the Convention Area is 31,775 cubic meters, but NMFS 
inadvertently failed to state that number into this paragraph when the 
change was made in 50 CFR 300.22(b)(4)(i)(A). NMFS is proposing to 
correct this oversight in this rulemaking.

Classification

    The NMFS Assistant Administrator has determined that this proposed 
rule is consistent with the Tuna Conventions Act and other applicable 
laws, subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the (RFA). The IRFA describes the economic 
impact this proposed rule, if adopted, would have on small entities. A 
description of the action, why it is being considered, and the legal 
basis for this action are contained at the beginning of this section in 
the preamble and in the SUMMARY section of the preamble. A summary of 
the analysis follows. A copy

[[Page 60794]]

of this analysis is available from NMFS (see ADDRESSES).

Data Buoy and Oceanic Whitetip Shark Measures

    The data buoy and oceanic whitetip shark provisions in the proposed 
rule would apply to owners and operators of U.S. vessels targeting HMS 
in the Convention Area. This includes longline, purse seine, troll and 
baitboat, drift gillnet, harpoon, and commercial passenger fishing 
vessels. All of these vessels are considered small business entities 
except for the large purse seiners. Some of the data buoy provisions 
also specifically apply to longline and purse seine vessels. However, 
in the case of the data buoy provisions, it is unlikely that this 
rulemaking will result in a significant change in fishing operations as 
NMFS is unaware of U.S. fishing vessels interacting with data buoys in 
the Convention Area in the past, or U.S. longline or purse seine 
vessels deploying gear within one nautical mile of anchored data buoys 
in the Convention Area. If, in the past, there have been vessels 
fishing within one nautical mile of anchored data buoys, the longline 
and purse seine measures could result in some negligible effects to the 
operating costs of vessels in terms of a potential increase in search 
time if there is less fishing success when not fishing around anchored 
buoys. Also, such vessels would have to avoid fishing in areas where 
anchored data buoys are located, which would slightly reduce the 
available fishing grounds and could cause some shift in the spatial 
distribution of fishing effort. Operators and crew would also be 
required to take additional precautions when encountering data buoys 
anywhere in the Convention Area, which could create new burdens that 
could increase operating costs by increasing the time spent at sea. For 
example, the operator and crew of any vessel that has gear that becomes 
entangled with a data buoy would need to make sure to disentangle the 
gear carefully, in order to cause as little damage to the data buoys as 
possible. However, since the measures are limited to fishing around 
anchored data buoys and longline and purse seine vessels would still be 
able to fish in essentially the same fishing grounds as long as they 
avoid the circular 3.14 nm\2\ prohibited fishing zone around each 
anchored data buoy, it is likely that there will be no real changes in 
fishing operations or associated revenues.
    The longline and purse seine fleets that currently fish around 
anchored data buoys could also see some change in the composition of 
their catch due to no longer being allowed to fish around anchored data 
buoys that can act as fish aggregating devices; however, this is rather 
unlikely. This could lead to an increase in the proportion of yellowfin 
tuna and a decrease in the proportion of bigeye tuna, skipjack tuna, 
and other species that tend to be caught around floating objects. Some 
studies suggest that seabirds, sea turtles, and marine mammals 
aggregate in association with floating objects, so there could be some 
minor beneficial effects on protected resources from implementation of 
the proposed rule. However, this is difficult, if not impossible, to 
estimate and in all likelihood there will not be changes in fishing 
operations and catch compositions resulting from the proposed rule. In 
addition, purse seine vessels would still be able to fish using FADs 
that they deploy and it is presumed that longline vessels tend to avoid 
fishing in close proximity to anchored buoys to prevent damage and 
entanglement of gear.
    NMFS compared the effects of the data buoy provisions proposed in 
this rule to one alternative, which is a no action alternative. Under 
this alternative, there would be no changes to current regulations to 
prohibit U.S. vessels targeting HMS in the Convention Area from 
interacting with data buoys as stipulated in Resolution C-11-03. Under 
this alternative, there would be no effects to vessel owners compared 
to the status quo. Vessel owners would potentially benefit from not 
implementing the data buoy provisions; however, the United States would 
not be implementing Resolution C-11-03 and would therefore not be 
satisfying its international obligations as a member of the IATTC.
    The oceanic whitetip shark conservation measures are also unlikely 
to result in changes to fishing operations or significant economic 
impacts to small entities as U.S. fisheries that target HMS rarely 
retain, transship, land, or sell this species in the Convention Area. 
The Hawaii longline fishery (both deep-set and shallow-set sectors) 
catches the majority, if not all, of the oceanic whitetip sharks caught 
by U.S. fisheries that target HMS in the Convention Area. According to 
observer data from 1995-2010 for the U.S. longline fleet based out of 
Hawaii, the majority (90.1 percent) of observed sets caught zero 
oceanic whitetip sharks. On average, 0.141 oceanic whitetip sharks were 
caught per set during the same time period. Since 2000, there has been 
a national ban on shark finning, which has greatly increased the number 
of sharks, including oceanic whitetip sharks, that are released after 
being caught. From 2004-2006, only 4.9 percent and 1.7 percent of the 
oceanic whitetip sharks that were caught were retained in the deep-set 
and shallow-set longline fisheries, respectively. The overwhelming 
majority of the oceanic whitetip sharks (99.3 percent) caught on 
observed fishing trips in this fishery are caught outside of the 
Convention Area, west of 150[deg] W. longitude. Thus, the proposed 
prohibition is expected to result in no change in fishing operations 
and only a de minimis reduction in associated revenues.
    NMFS compared the effects of the oceanic whitetip provisions 
proposed in this rule to one alternative, which is a no action 
alternative. Under this alternative, there would be no changes to 
current regulations to prohibit U.S. vessels targeting HMS in the 
Convention Area from retaining onboard, transshipping, landing, 
storing, selling, or offering for sale any part or whole carcass of 
oceanic whitetip shark, as stipulated in Resolution C-11-10. Under this 
alternative, there would be no effects to vessel owners compared to the 
status quo. Vessel owners would potentially benefit from not 
implementing the oceanic whitetip provisions; however, the United 
States would not be implementing Resolution C-11-10 and would therefore 
not be satisfying its international obligations as a member of the 
IATTC.
    In summary, all entities that have the potential to be affected by 
the data buoy and oceanic whitetip shark measures are believed to be 
small entities except the large purse seine vessels; however, it is 
likely that none of these entities would be significantly impacted by 
the proposed rule as fishing operations and revenues would most likely 
remain the same.

Tuna Conservation Measures

    The tuna conservation measures would specifically affect longline 
vessels over 24 meters length overall and U.S. purse seine vessels 
class sizes 4-6 fishing for yellowfin, bigeye, and skipjack tunas in 
the Convention Area. This rule makes only slight adjustments to the 
existing tuna conservation measures, and extends the effective period 
for two additional fishing years, thus impacts to vessel owners are 
expected to be minimal. The bigeye tuna quota in the longline fishery 
will remain at 500 mt and remain in force for 2012 and 2013. This quota 
has not been reached in 2009 or 2010 and it is not expected to be 
reached in 2011. In addition, the purse seine closure in the Convention 
Area will be shortened by 11 days in 2011 and will remain in force for 
2012 and 2013 and the purse seine

[[Page 60795]]

vessel owners will be given a choice as to when to implement the 
closure giving them greater flexibility while maintaining the same 
level of conservation, the high seas purse seine time/area closure will 
remain in force for 2012 and 2013, and the tuna catch retention 
measures will be extended to 2012 and beyond.
    NMFS compared the effects of the tuna conservation measures 
proposed in this rule to one alternative, which is a no action 
alternative. Under this alternative, there would be no changes to 
current regulations to continue the bigeye tuna quota in 2012 and 2013 
in the longline fishery, no changes to the purse seine closure periods, 
no option to select a preferred closure period, and no extension of the 
tuna retention measures as stipulated in Resolution C-11-01. Under this 
alternative, the longline and purse seine fisheries operating in the 
Convention Area would maintain the status quo. The longline vessel 
owners would benefit from not continuing the bigeye tuna quota; 
however, since this quota has not been reached in the past, the effects 
would likely be similar to the proposed measures. The purse seine 
vessel owners would be disadvantaged by not shortening the purse seine 
closure period in the Convention Area by 11 days in 2011 and not giving 
them the option to choose a preferred closure period; however, they 
would benefit if the closure period in the Convention Area and the high 
seas time/area closure were not continued in 2012 and 2013 and the tuna 
retention measures were not continued in 2012 and beyond. Under this 
alternative, the United States would not be fully implementing 
Resolution C-11-01 and would therefore not be satisfying its 
international obligations as a member of the IATTC. The total number of 
affected longline vessels is approximated by the average number of U.S. 
large-scale longline vessels that have caught bigeye tuna in the 
Convention Area in 2005-2010. In each of the years 2005 through 2008, 
the number of large-scale longline vessels that caught bigeye in the 
Convention Area was 18, 8, 18, and 30, respectively. Thus, 
approximately 19 longline vessels on average have the potential to be 
affected by this proposed rule, if adopted. The majority of the 
longline vessels that may be affected by this proposed rule are based 
out of Hawaii and American Samoa. There is also one longline vessel 
based out of California that would be affected by the proposed rule. 
These longline vessels target bigeye tuna using deep sets, and during 
certain parts of the year, portions of the Hawaii and American Samoa 
fleet target swordfish using shallow sets.
    Most of the Hawaii and American Samoa fleets' fishing effort has 
traditionally been outside of the Convention Area in the western and 
central Pacific Ocean (WCPO), but fishing has also taken place in the 
EPO. The proportion of the large-scale longline vessels annual bigeye 
tuna catches that were captured in the EPO from 2005 through 2009 
ranged from about 5 percent to 26 percent, and averaged 19 percent. As 
an indication of the size of businesses in the fishery, average annual 
fleet-wide ex-vessel revenues during 2005-2009 were about $63 million. 
Given the number of vessels active during that period (128, on 
average), this indicates an average of about $490,000 in annual revenue 
per vessel, thus all of the businesses affected by the longline 
measures would be considered small business entities.
    For the purpose of projecting baseline conditions for the longline 
fishery under no action, this analysis relies on fishery performance 
from 2005 through 2010, since prior to 2005 the longline fishery 
regulations underwent major changes (the swordfish-directed shallow-set 
longline fishery was closed in 2001 and reopened in 2004 with limits on 
fishing effort and turtle interactions). Bigeye tuna landings from 2005 
through 2010 suggest that it is unlikely that the proposed limit would 
be reached in any of the years during which the limit would be in 
effect. The proposed limit, 500 mt, is less than the amount landed by 
large-scale longline vessels in 2005-2010. Large-scale longline vessels 
fishing in the Convention Area caught about 166, 51, 118, 325, 204, and 
408 mt of bigeye tuna in 2005-2010, respectively. Thus, it is estimated 
that even with an increase in the catch rates of bigeye tuna in the 
Convention Area the 500 mt catch limit would not be reached in any of 
the applicable years (2011-2013).
    In summary, all entities affected by the bigeye quota in longline 
fisheries are believed to be small entities, so small entities would 
not be disproportionately affected relative to large entities. In 
addition, this part of the proposed rule is not likely to have a 
significant impact on a substantial number of small entities because it 
is unlikely that the bigeye landings limit that would be imposed on 
large-scale longline vessels would be reached in any given year.
    The total number of affected purse seine vessels is approximated by 
the current number of U.S. purse seine vessels class size 4-6 
authorized to fish in the Convention Area. As of August 2011, there 
were eight U.S. purse seine vessels listed on the IATTC Vessel 
Register; five are class size 6 (greater than 363 mt carrying 
capacity), one is class size 5 (273--363 mt carrying capacity), and two 
are class sizes 1-3 (less than 182 mt carrying capacity). Thus six 
purse seine vessels may be affected by the proposed rule in the near 
future. There is also the potential for other U.S. purse seine vessels 
based out of the WCPO to become authorized to fish in the EPO; however, 
there are capacity limits on purse seine vessels fishing in the EPO and 
it is estimated that at a maximum 15 additional vessels could be added 
to the current authorized list of active purse seine vessels. Purse 
seine vessels class sizes 5 and 6 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. Skipjack and yellowfin 
tuna are the primary target species in the purse seine fishery, and 
bigeye tuna is incidentally targeted. Class size 6 vessels are required 
to have 100 percent observer coverage, while class size 5 vessels are 
not required to carry an observer. Purse seine vessels class size 5 or 
smaller would be considered small business entities (revenues equal to 
or less than $4 million per year). It is estimated that from 2004-2010, 
the majority, if not all, class size 5 U.S. purse seine vessels have 
had revenues of less than $0.5 million per year. Class size 6 vessels 
are categorized as large business entities (revenues in excess of $4 
million per year). A large purse seine vessel typically generates about 
4,000 to 5,000 mt of tuna valued at about $4 to $5 million per year.
    It is estimated that purse seine sets would be prohibited for 17 
percent of the year in 2011-2013 (62 day closure/365 days), thus 
catches would be expected to be affected accordingly unless effort was 
shifted to areas outside of the Convention Area during the closure 
period, or to different times of the year when there is no closure. The 
affected vessels are capable of fishing outside of the closure area 
(i.e., in the WCPO) during the closure period and/or for the remainder 
of the year, since the fishery continues year round in the EPO, and 
vessels tend to use relatively short closures (such as these) for 
regular vessel maintenance. Fishing in the WCPO may produce additional 
costs to some of the affected vessels that are based out of the U.S. 
West Coast and primarily fish in the EPO due to the increase in costs 
associated with fishing further away from port. In addition, there is a 
FAD purse seine closure period in the WCPO from July 1 to

[[Page 60796]]

September 30 in 2011 that further constrains purse seine fishing effort 
in the WCPO. The closure may be extended into 2012 and beyond depending 
on the tuna conservation and management measures that are adopted by 
the WCPFC at their annual meeting in December 2011.
    Other factors that have the potential to inhibit these vessels from 
fishing outside of the Convention Area include licensing availability 
and costs, and effort limits for purse seine vessels fishing in the 
WCPO. It is assumed that fishing in the WCPO is the only practical 
geographic alternative for these vessels. Purse seine vessels fishing 
in the WCPO under the South Pacific Tuna Treaty (SPTT) are required to 
license their vessels; the maximum number of licensed vessels allowed 
in the U.S. purse seine fishery in the WCPO is 40 and currently there 
are 37 licensed vessels as of September 2011. The vessel registration 
fee is about $3,250 per vessel. The five class size 6 purse seine 
vessels that are authorized to fish in the Convention Area are already 
registered under the SPTT. It may not be economically viable for the 
class size 5 purse seine vessels to register under the SPTT and fish in 
the WCPO because of the smaller carrying capacity and the increased 
costs associated with fishing far from port.
    In summary, one small business entity and five large business 
entities may be affected by the purse seine measures, thus small 
entities would not be disproportionately affected relative to large 
entities. In addition, the purse seine closure periods are not likely 
to have a significant impact on a substantial number of small entities 
because only one small business entity may be affected and it is 
estimated that its fishing effort will not change significantly from 
the status quo.
    This proposed rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) and which has been 
approved by the Office of Management and Budget (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, nor shall any person be subject to a 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.

List of Subjects in 50 CFR Part 300

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

    Dated: September 27, 2011.
John Oliver,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 300--INTERNATIONAL FISHERIES REGULATIONS

    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.

    2. In Sec.  300.21, a definition of ``Data buoy'' is added, in 
alphabetical order, to read as follows:


Sec.  300.21  Definitions.

* * * * *
    Data buoy means, for the purpose of Sec.  300.25, a floating 
device, either drifting or anchored, which is deployed by one or more 
governmental or recognized scientific organizations or entities for the 
purpose of electronically collecting and measuring environmental data, 
and not for the purpose of fishing activities, and which has been 
reported to the IATTC by a Member or Cooperating non-Member of the 
Commission.
* * * * *
    3. In Sec.  300.22, paragraph (b)(7)(ii) is revised as follows:


Sec.  300.22  Eastern Pacific fisheries recordkeeping and written 
reports.

* * * * *
    (b) * * *
    (7) * * *
    (ii) A purse seine vessel may be added to the Vessel Register and 
categorized as active in order to replace a vessel removed from active 
status under paragraph (b)(5) of this section, provided the total 
carrying capacity of the active vessels does not exceed 31,775 cubic 
meters and the owner submits a complete request under paragraph 
(b)(7)(iv) or (b)(7)(v) of this section.
* * * * *
    4. In Sec.  300.24, paragraphs (e), (m) and (n) are revised, and 
new paragraphs (o) through (t) are added to read as follows:


Sec.  300.24  Prohibitions.

* * * * *
    (e) Fail to retain any bigeye, skipjack, or yellowfin tuna caught 
by a fishing vessel of the United States of class size 4-6 using purse 
seine gear in the Convention Area as required under Sec.  300.25(e)(1).
* * * * *
    (m) Fail to stow gear as required in Sec.  300.25(b)(4)(iv) or 
(f)(7).
    (n) Use a fishing vessel of class size 4-6 to fish with purse seine 
gear in the Convention Area in contravention of Sec.  300.25(f)(1), 
(f)(2), (f)(5), or (6).
    (o) Use a U.S. longline or purse seine fishing vessel used to fish 
for HMS within one nautical mile of an anchored data buoy while the 
fishing vessel is in the Convention Area in contravention of Sec.  
300.25(g)(1).
    (p) Use a U.S. fishing vessel used for fishing for HMS, or any 
gear, equipment, or watercraft deployed by such a fishing vessel, to 
interact with a data buoy in the Convention Area in contravention of 
Sec.  300.25(g)(2).
    (q) Remove from the water a data buoy and place it on board or tow 
a data buoy with a U.S. fishing vessel used for fishing for HMS while 
the vessel is in the Convention Area without authorization by the owner 
of the data buoy or the owner's authorized representative in 
contravention of Sec.  300.25(g)(3).
    (r) In the event of an entanglement of a data buoy with a U.S. 
fishing vessel, or its fishing gear, equipment, or associated 
watercraft, used for fishing for HMS in the Convention Area, fail to 
promptly remove the data buoy with as little damage to the data buoy 
and its mooring and anchor lines as possible, in contravention of Sec.  
300.25(g)(4).
    (s) Fail to take all reasonable measures to avoid fishing gear 
entanglement or interaction with drifting data buoys in contravention 
of Sec.  300.25(g)(5).
    (t) Use a U.S. fishing vessel to fish for HMS in the Convention 
Area and retain onboard, transship, land, store, sell, or offer for 
sale any part or whole carcass of an oceanic whitetip shark 
(Carcharhinus longimanus) or fail to release unharmed, to the extent 
practicable, all oceanic whitetip sharks when brought alongside the 
vessel in contravention of Sec.  300.25(e)(4).
    5. In Sec.  300.25, paragraphs (b), (e)(1), and (f) are revised, 
and new paragraphs (e)(4) and (g) are added to read as follows:

[[Page 60797]]

Sec.  300.25  Eastern Pacific fisheries management.

* * * * *
    (b) Tuna quotas in the longline fishery in the Convention Area. (1) 
Fishing seasons for all tuna species begin on January 1 and end either 
on December 31 or when NMFS closes the fishery for a specific species.
    (2) For each of the calendar years 2011, 2012, and 2013, there is a 
limit of 500 metric tons of bigeye tuna that may be captured and landed 
by longline gear in the Convention Area by fishing vessels of the 
United States that are over 24 meters in length.
    (3) NMFS will monitor bigeye tuna landings with respect to the 
limit established under paragraph (b)(2) of this section using data 
submitted in logbooks and other available information. After NMFS 
determines that the limit in any year is expected to be reached by a 
specific future date, and at least 7 calendar days in advance of that 
date, NMFS will publish a notice in the Federal Register announcing 
that the limit has been reached and that the restrictions described in 
paragraphs (b)(4) of this section will be in effect through the end of 
the calendar year.
    (4) Once an announcement is made pursuant to paragraph (b)(3) of 
this section, the following restrictions will apply during the period 
specified in the announcement:
    (i) A fishing vessel of the United States over 24 meters in length 
may not be used to retain on board, transship, or land bigeye tuna 
captured by longline gear in the Convention Area, except as follows:
    (A) Any bigeye tuna already on board a fishing vessel upon the 
effective date of the prohibitions may be retained on board, 
transshipped, and/or landed, to the extent authorized by applicable 
laws and regulations, provided that they are landed within 14 days 
after the prohibitions become effective.
    (B) In the case of a vessel that has declared to NMFS, pursuant to 
Sec.  665.23(a) of this title, that the current trip type is shallow-
setting, the 14-day limit is waived, but the number of bigeye tuna 
retained on board, transshipped, or landed must not exceed the number 
on board the vessel upon the effective date of the prohibitions, as 
recorded by the NMFS observer on board the vessel.
    (ii) Bigeye tuna caught by longline gear used on a vessel of the 
United States over 24 meters in length in the Convention Area may not 
be transshipped to a fishing vessel unless that fishing vessel is 
operated in compliance with a valid permit issued under Sec.  660.707 
or Sec.  665.21 of this title.
    (iii) A fishing vessel of the United States over 24 meters in 
length, other than a vessel for which a declaration has been made to 
NMFS, pursuant to Sec.  665.23(a) of this title, that the current trip 
is shallow-setting, may not be used to fish in the Pacific Ocean using 
longline gear both inside and outside the Convention Area during the 
same fishing trip, with the exception of a fishing trip during which 
the prohibitions were put into effect as announced under paragraph 
(b)(3) of this section.
    (iv) If a fishing vessel of the United States over 24 meters in 
length, other than a vessel for which a declaration has been made to 
NMFS, pursuant to Sec.  665.23(a) of this title, that the current trip 
type is shallow-setting, is used to fish in the Pacific Ocean using 
longline gear outside the Convention Area and the vessel enters the 
Convention Area at any time during the same fishing trip, the longline 
gear on the fishing vessel must be stowed in a manner so as not to be 
readily available for fishing; specifically, the hooks, branch or 
dropper lines, and floats used to buoy the mainline must be stowed and 
not available for immediate use, and any power-operated mainline hauler 
on deck must be covered in such a manner that it is not readily 
available for use.
* * * * *
    (e) Bycatch reduction measures. (1) As of January 1, 2012, bigeye, 
skipjack, and yellowfin tuna caught in the Convention Area by a fishing 
vessel of the United States of class size 4-6 (more than 182 metric 
tons carrying capacity) using purse seine gear must be retained on 
board and landed, except fish deemed unfit for human consumption for 
reasons other than size. This requirement shall not apply to the last 
set of a trip if the available well capacity is insufficient to 
accommodate the entire catch.
* * * * *
    (4) A fishing vessel of the United States used to fish for HMS in 
the Convention Area shall be prohibited from retaining onboard, 
transshipping, landing, storing, selling, or offering for sale any part 
or whole carcass of an oceanic whitetip shark (Carcharhinus longimanus) 
and must release unharmed, to the extent practicable, all oceanic 
whitetip sharks when brought alongside the vessel.
    (f) Purse seine closures in the Convention Area. (1) A fishing 
vessel of the United States of class size 4-6 (more than 182 metric 
tons carrying capacity) may not be used to fish with purse seine gear 
in the Convention Area for 62 days in each of the years 2011, 2012, and 
2013 during one of the following two periods:
    (i) From 0000 hours on July 29 to 2400 hours on September 18, or
    (ii) From 0000 hours on November 18 to 2400 hours on January 18 of 
the following year.
    (2) For 2011, all U.S. purse seine vessels subject to the 
requirements under paragraph (f)(1) of this section shall adhere to the 
closure period under paragraph (f)(1)(ii) of this section.
    (3) A vessel owner of a vessel that is subject to the requirements 
under paragraph (f)(1) of this section must in 2012 and 2013 provide 
written notification to the Regional Administrator declaring which one 
of the two closure periods identified in paragraph (f)(1) of this 
section to which his or her vessel will adhere in that year. This 
written notification must be submitted by fax at (562) 980-4047 and 
must be received no later than July 1 in each of the years 2012 and 
2013. The written notification must include the vessel name and 
registration number, the closure dates that will be adhered to by that 
vessel, and the vessel owner or managing owner's name, signature, 
business address, and business telephone number.
    (4) If written notification is not submitted per paragraph (f)(3) 
of this section for a vessel subject to the requirements under 
paragraph (f)(1) of this section, that vessel must adhere to the 
closure period under paragraph (f)(1)(ii) of this section.
    (5) A vessel of class size 4 (182 to 272 metric tons carrying 
capacity) may make one fishing trip of up to 30 days duration during 
the specified closure period, provided that the vessel carries an 
observer of the On-Board Observer Program of the Agreement on the 
International Dolphin Conservation Program during the entire fishing 
trip.
    (6) A fishing vessel of the United States of class size 4-6 (more 
than 182 metric tons carrying capacity) may not be used from 0000 hours 
on September 29 to 2400 hours on October 29 in the years 2012 and 2013 
to fish with purse seine gear within the area bounded at the east and 
west by 96[deg] and 110[deg] W. longitude and bounded at the north and 
south by 4[deg] N. and 3[deg] S. latitude.
    (7) At all times while a vessel is in a Closed Area established 
under paragraphs (f)(1) or (f)(6) of this section, the fishing gear of 
the vessel must be stowed in a manner as not to be readily available 
for fishing. In particular, the boom must be lowered as far as possible 
so that the vessel cannot be used for fishing, but so that the skiff is 
accessible for use in emergency situations; the

[[Page 60798]]

helicopter, if any must be tied down; and launches must be secured.
    (g) Restrictions on fishing in proximity to data buoys. (1) A 
longline or purse seine fishing vessel of the United States may not be 
used to fish for HMS within one nautical mile of an anchored data buoy 
in the Convention Area. The one-nautical-mile distance shall be 
measured from the data buoy to the nearest portion of the fishing 
vessel or items associated with the fishing vessel, such as gear or 
watercraft deployed by the fishing vessel, to the data buoy. This 
prohibition shall not apply if and when the fishing vessel is operated 
as part of a scientific research program that has received specific 
authorization by the IATTC or is conducting work on behalf of the 
IATTC.
    (2) A fishing vessel of the United States used to fish for HMS, or 
any fishing gear, equipment, or watercraft deployed by such a fishing 
vessel, may not be used to interact with a data buoy while the fishing 
vessel is in the Convention Area. Interact with a data buoy means to 
engage in conduct that could impair the functioning of a data buoy 
through actions that include but that are not limited to the following: 
encircling the buoy with fishing gear; tying up to or attaching the 
vessel, or any fishing gear, part or portion of the fishing vessel, 
including equipment such as watercraft, to a data buoy or its mooring; 
cutting a data buoy anchor line.
    (3) A vessel operator, crew member, or other persons on board a 
fishing vessel of the United States that is used to fish for HMS may 
not remove a data buoy or any parts thereof from the water and place it 
on board the fishing vessel or tow a data buoy when in the Convention 
Area unless authorized to do so by the owner of the data buoy or an 
authorized representative or agent of the owner. When practicable, 
advance written authorization must be available onboard a U.S. fishing 
vessel that has taken on board or tows a data buoy. In all other cases, 
a written document (e.g., fax, e-mail) verifying the authorization must 
be obtained by the vessel owner or operator within 15 days of landing.
    (4) In the event that a fishing vessel of the United States that is 
used to fish for HMS or any of its fishing gear, equipment, or 
associated watercraft, becomes entangled with a data buoy while the 
fishing vessel is in the Convention Area, the owner and operator of the 
fishing vessel must promptly remove the entangled fishing vessel, 
fishing gear, equipment, or associated watercraft with as little damage 
to the data buoy and its mooring and anchor lines as possible.
    (5) A vessel operator, crew member, or other persons on board a 
fishing vessel of the United States that is used to fish for HMS must 
take all reasonable measures to avoid fishing gear entanglement or 
interaction with drifting data buoys.

[FR Doc. 2011-25275 Filed 9-29-11; 8:45 am]
BILLING CODE 3510-22-P