[Federal Register Volume 76, Number 251 (Friday, December 30, 2011)]
[Rules and Regulations]
[Pages 82180-82183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33593]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 111207732-1745-01]
RIN 0648-BB73


International Fisheries; Western and Central Pacific Fisheries 
for Highly Migratory Species; Fishing Restrictions for Bigeye Tuna and 
Yellowfin Tuna in Purse Seine Fisheries for 2012

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

ACTION: Interim rule; request for comments.

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SUMMARY: This interim rule extends the dates of applicability of 
existing regulations applicable to U.S. purse seine vessels operating 
in the western and central Pacific Ocean (WCPO) through December 31, 
2012. NMFS issues this rule under authority of the Western and Central 
Pacific Fisheries Convention Implementation Act (WCPFC Implementation 
Act) to implement a decision of the Commission for the Conservation and 
Management of Highly Migratory Fish Stocks in the Western and Central 
Pacific Ocean (WCPFC). The WCPFC decision, made December 20, 2011, 
extends the effectiveness of the WCPFC's ``Conservation and Management 
Measure for Bigeye and Yellowfin Tuna in the Western and Central 
Pacific Ocean'' (CMM 2008-01), originally scheduled to expire on 
December 31, 2011. CMM 2008-01 is the basis for the existing 
regulations whose dates of applicability are being extended by this 
interim rule. Under this rulemaking, these regulations now apply 
through December 31, 2012, and include limits on fishing effort, 
restrictions on the use of fish aggregating devices (FADs), closed 
areas, catch retention requirements, and requirements to carry 
observers. This action is necessary for the United States to satisfy 
its international obligations under the Convention on the Conservation 
and Management of Highly Migratory Fish Stocks in the Western and 
Central Pacific Ocean (Convention), to which it is a Contracting Party.

DATES: Effective on December 30, 2011, comments must be submitted in 
writing by February 28, 2012.

ADDRESSES: Comments on this interim rule, identified by NOAA-NMFS-2011-
0296, and the regulatory impact review (RIR) prepared for this interim 
rule may be sent to either of the following addresses:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking portal, at http://www.regulations.gov; or
     Mail: Mail written comments to Michael D. Tosatto, 
Regional Administrator,
    NMFS, Pacific Islands Regional Office (PIRO), 1601 Kapiolani Blvd., 
Suite 1110, Honolulu, HI 96814-4700.
    Instructions: Comments must be submitted to one of the two 
addresses 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 part of the public record and generally will 
be posted on http://www.regulations.gov without change. All personal 
identifying information (for example, name and address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information. NMFS will accept anonymous comments (enter ``N/A'' in the 
relevant required fields if you wish to remain anonymous). Attachments 
to electronic comments will be accepted in Microsoft Word or Excel, 
WordPerfect, or Adobe PDF file formats only.
    Copies of the RIR prepared for this interim rule are available from 
http://www.regulations.gov or may be obtained from Michael D. Tosatto, 
NMFS PIRO (see address above).

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

SUPPLEMENTARY INFORMATION: 

Electronic Access

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

Background on the Convention and the WCPFC

    The Convention Area comprises the majority of the western and 
central Pacific Ocean (WCPO). A map showing the boundaries of the 
Convention Area can be found on the WCPFC Web site at: http://www.wcpfc.int/doc/convention-area-map. The Convention focuses on the 
conservation and management of highly migratory species (HMS) and the 
management of fisheries for HMS. The objective of the Convention is to 
ensure, through effective management, the long-term conservation and 
sustainable use of HMS in the WCPO.
    As a Contracting Party to the Convention and a Member of the WCPFC, 
the United States is obligated to implement the decisions of the WCPFC. 
The WCPFC Implementation Act (16 U.S.C. 6901 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 
is operating (currently the Department of Homeland Security), to 
promulgate such regulations as may be necessary to carry out the 
obligations of the United States under the Convention, including the 
decisions of the WCPFC. The Secretary of Commerce has delegated the 
authority to promulgate regulations to NMFS.

Existing Regulations To Implement WCPFC Decision for Bigeye Tuna and 
Yellowfin Tuna in Purse Seine Fisheries

    At its Fifth Regular Session, in December 2008, the WCPFC adopted 
CMM 2008-01. The CMM, available with other decisions of the WCPFC at 
http://www.wcpfc.int/decisions.htm, places certain obligations on the 
WCPFC Members, Participating Territories, and Cooperating Non-members 
(collectively, CCMs). The CMM was based in part on the findings by the 
WCPFC that the stock of bigeye tuna (Thunnus obesus) in the WCPO was 
experiencing a fishing

[[Page 82181]]

mortality rate greater than the rate associated with maximum 
sustainable yield and that the stock of yellowfin tuna (Thunnus 
albacares) in the WCPO was experiencing a fishing mortality rate close 
to the rate associated with maximum sustainable yield. The Convention 
calls for the WCPFC to adopt measures designed to maintain or restore 
stocks at levels capable of producing maximum sustainable yield, as 
qualified by relevant environmental and economic factors. Accordingly, 
the objectives of CMM 2008-01 include achieving, over the 2009-2011 
period, a reduction in fishing mortality on bigeye tuna in the WCPO of 
at least 30 percent and no increase in fishing mortality on yellowfin 
tuna in the WCPO, relative to a specified historical baseline.
    In 2009, NMFS issued regulations to implement the applicable 
provisions of CMM 2008-01, with one rule devoted to the purse seine-
related provisions of the CMM (final rule published August 4, 2009; 74 
FR 38544) and another rule devoted to the longline-related provisions 
(final rule published December 7, 2009; 74 FR 63999). The regulations 
for purse seine fishing are codified at 50 CFR 300.223(a)-(e) 
(paragraph (f), which addresses sea turtle take mitigation, is 
unaffected by this rulemaking and remains effective) and the 
regulations for longline fishing are codified at 50 CFR 300.224. In 
accordance with the effective dates of CMM 2008-01, these regulations 
apply through December 31, 2011.
    The existing regulations for purse seine fishing include: (1) 
Specific limits on the number of fishing days that may be spent by the 
U.S. purse seine fleet on the high seas and in areas under U.S. 
jurisdiction (including the U.S. exclusive economic zone, or EEZ) 
within the Convention Area for each of: The one-year periods 2009, 
2010, and 2011 (3,882 fishing days each); the two-year periods 2009-
2010 and 2010-2011 (6,470 fishing days each); and the three-year period 
2009-2011 (7,764 fishing days); (2) specific periods in each of the 
years 2009 (August-September), 2010 (July-September) and 2011 (July-
September) during which U.S. fishing vessels are prohibited from 
setting purse seines around or within one nautical mile of fish 
aggregating devices (FADs), deploying FADs, or servicing FADs or their 
associated electronic equipment in the Convention Area; (3) two 
specific areas of high seas within the Convention Area in which U.S. 
purse seine vessels are prohibited from fishing, effective from January 
1, 2010, through December 31, 2011; (4) a prohibition, which went into 
effect June 14, 2010, and continues through December 31, 2011, on U.S. 
purse seine fishing vessels from discarding at sea within the 
Convention Area any bigeye tuna, yellowfin tuna, or skipjack tuna 
(Katsuwonus pelamis), with certain exceptions; and (5) a requirement, 
effective August 1 through September 30, 2009, and from January 1, 
2010, through December 31, 2011, that U.S. purse seine vessels carry a 
WCPFC observer on all trips in the Convention Area in the area between 
20[deg] N. latitude and 20[deg] S. latitude, with certain exceptions.

WCPFC Decision To Extend Conservation and Management Measure for Bigeye 
Tuna and Yellowfin Tuna

    The WCPFC was scheduled to hold its regular annual session in 
December 2011, and intended to discuss at that time CMM 2008-01, 
including whether to adopt the same or changed measures for 2012 and 
beyond. However, that session was postponed unexpectedly due to a fire 
at a major power plant and resulting power failures in Palau, where the 
meeting was scheduled to be held. The annual session is now tentatively 
scheduled to take place in March 2012. Because of the postponement of 
its regular annual session and the expiration of CMM 2008-01 at the end 
of 2011, the WCPFC made an intersessional decision on December 20, 
2011, to extend the effectiveness of CMM 2008-01 until the WCPFC is 
able to hold its regular annual session. The decision specifies that 
those provisions of the CMM that are tied to specific years will 
continue to operate as they did in 2011 (e.g., the dates of the FAD 
prohibition period for 2012 are the same as for 2011).

The Action

    This interim rule implements, for purse seine fisheries, the 
decision of the WCPFC to extend the effectiveness of CMM 2008-01 past 
December 31, 2011. Specifically, it extends the applicable dates of the 
five elements of the existing implementing regulations for purse seine 
fishing, at 50 CFR 300.223(a)-(e), through December 31, 2012.
    NMFS would implement the longline-related provisions of the WCPFC's 
recent decision to extend CMM 2008-01 in a separate rulemaking in early 
2012. Implementation of the longline-related provisions of the extended 
CMM 2008-01 would need to take into account Section 113 of the recently 
enacted Consolidated and Further Continuing Appropriations Act, 2012 
(Act), which could affect the way NMFS assigns catches in U.S. longline 
fisheries with respect to the catch limits. All other existing 
regulations for longline fishing remain in place and NMFS remains able 
to account for all catches.
    This interim rule amends the existing regulations for purse seine 
fishing such that they apply in 2012 as follows:

(1) Fishing Effort Limits

    Limits are established on the number of fishing days that may be 
spent by the U.S. purse seine fleet on the high seas and in areas under 
U.S. jurisdiction within the Convention Area for each of: 2012 (3,882 
fishing days); the two-year period 2011-2012 (6,470 fishing days); and 
the three-year period 2010-2012 (7,764 fishing days). If one of the 
limits is reached and the fishery is closed with notice from NMFS, it 
will be prohibited to use a U.S. purse seine vessel to fish in the 
Convention Area on the high seas or in areas under U.S. jurisdiction 
until the end of the applicable period.

(2) FAD Prohibition Period

    From July 1 through September 30, 2012, owners, operators, and crew 
of U.S. fishing vessels will be prohibited from setting a purse seine 
around a FAD or within one nautical mile of a FAD or deploying or 
servicing a FAD or its associated electronic equipment in the 
Convention Area. It will also be prohibited during this period to set a 
purse seine in a manner intended to capture fish that have aggregated 
in association with a FAD, such as by setting the purse seine in an 
area from which a FAD has been moved or removed within the previous 
eight hours or setting the purse seine in an area into which fish were 
drawn by a vessel from the vicinity of a FAD.

(3) High Seas Area Closures

    Two specific areas of high seas within the Convention Area are 
closed to purse seine fishing through December 31, 2012. The two areas 
are depicted on the map in Figure 1. Figure 1. High seas closed areas. 
Areas of high seas are indicated in white; areas of claimed national 
jurisdiction, including territorial seas, archipelagic waters, and 
exclusive economic zones, are indicated in dark shading. Areas closed 
to purse seine fishing through December 31, 2012, are all high seas 
areas (in white) within the two rectangles bounded by the bold black 
lines. The coordinates of the two rectangles are set forth in the 
regulation. This map displays indicative maritime boundaries only.

[[Page 82182]]

[GRAPHIC] [TIFF OMITTED] TR30DE11.006

(4) Catch Retention

    It is prohibited to discard any bigeye tuna, yellowfin tuna, or 
skipjack tuna from a U.S. purse seine vessel at sea within the 
Convention Area through December 31, 2012. Exceptions are provided for 
fish that are unfit for human consumption for reasons other than their 
size, for the last set of the trip if there is insufficient well space 
to accommodate the entire catch, and for cases of serious malfunction 
of equipment that necessitate that fish be discarded.

(5) Observer Coverage

    U.S. purse seine vessels must, through December 31, 2012, carry 
observers deployed as part of the WCPFC Regional Observer Programme 
(WCPFC ROP) or deployed by NMFS on all trips in the Convention Area. 
These observer requirements do not apply to fishing trips for which: 
the portion of the fishing trip within the Convention Area takes place 
entirely within areas under U.S. jurisdiction or entirely within areas 
under the jurisdiction of any other single nation; no fishing takes 
place in the Convention Area in the area between 20[deg] N. latitude 
and 20[deg] S. latitude; or NMFS has determined that an observer is not 
available.
    These regulations are being issued without prior notice or public 
comment because of the unexpected postponement of this year's regular 
annual session of the WCPFC and its consequent intersessional decision 
to extend the effectiveness of CMM 2008-01. That decision, made 
December 20, 2011, allowed NMFS extremely limited time for 
implementation. In order to satisfy the international obligations of 
the United States as a Contracting Party to the Convention, NMFS must 
implement three of the five elements--the high seas closed areas, the 
catch retention requirements, and the observer coverage requirements--
by January 1, 2012, or as soon as possible thereafter. NMFS believes it 
appropriate to include the remaining two elements, extension of the 
fishing effort limits and the FAD prohibition period, in this interim 
rule because these elements are directly related to the other three 
elements, and because their inclusion will provide the public with 
notice of how these two elements will apply in 2012. However, NMFS 
notes that any closure resulting from reaching one of the limits on 
fishing effort will go into effect only if and when one of the limits 
is reached in 2012, and that the FAD-related restrictions will be in 
effect from July 1, 2012, through September 30, 2012. NMFS will 
consider public comments on this interim rule and issue a final rule, 
as appropriate.
    The WCPFC may make a binding decision at its anticipated annual 
session in early 2012 that would alter the extended provisions of CMM 
2008-01 as they apply in 2012. NMFS would undertake another rulemaking, 
as appropriate, to implement that decision.

Classification

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

Administrative Procedure Act

    There is good cause under 5 U.S.C. 553(b)(B) to waive prior notice 
and prior opportunity for public comment on this action. This rule will 
continue regulations implemented under the authority of CMM 2008-01 and 
the WCPFC Implementation Act beyond the current expiration of December 
31, 2011. Affected entities have been subject to these measures since 
2009. The conditions prompting the regulations established in 2009 
remain largely unchanged. However, the WCPFC did not decide to extend 
CMM 2008-01 until December 20, 2011. The decision was prompted by the 
unexpected postponement of the WCPFC annual session scheduled for 
December 2011. Thus, NMFS had

[[Page 82183]]

limited notice of the need to implement the WCPFC decision to extend 
CMM 2008-01. In order to satisfy its international obligations under 
the Convention and ensure there is no gap, or as brief a gap as 
possible, in the application of important conservation measures for 
bigeye tuna and yellowfin tuna, NMFS must implement the provisions of 
the WCPFC's decision to extend the provisions of CMM 2008-01 applicable 
to purse seine fisheries by January 1, 2012, or as soon as possible 
thereafter. NMFS would not be able to do so if it provided opportunity 
for prior notice and prior public comment. Therefore, prior notice and 
prior opportunity for public comment on this action would be 
impracticable and contrary to the public interest.
    There is also good cause under 5 U.S.C. 553(d)(3) to waive the 30-
day delay in effective date. As described above, NMFS had limited 
notice of the need to implement the WCPFC intersessional decision to 
extend CMM 2008-01. These measures are intended to reduce fishing 
pressure on bigeye tuna and yellowfin tuna in the WCPO in order to 
maintain or restore stocks at levels capable of producing maximum 
sustainable yield on a continuing basis. The conditions prompting the 
existing regulations remain largely unchanged, and failure to 
immediately extend those regulations consistent with the WCPFC 
intersessional decision while the WCPFC develops more lasting 
international conservation measures could result in excessive fishing 
pressure on these stocks, in violation of international and domestic 
obligations. Therefore, NMFS must implement the provisions of the 
WCPFC's decision to extend the provisions of CMM 2008-01 applicable to 
purse seine fisheries by January 1, 2012, or as soon as possible 
thereafter. NMFS would not be able to do so if it provided a 30-day 
delay in effective date. Therefore, compliance with the 30-day delay 
requirement would be impracticable and contrary to the public interest.

Coastal Zone Management Act (CZMA)

    NMFS has determined that this rule will be implemented in a manner 
consistent, to the maximum extent practicable, with the enforceable 
policies of the approved coastal zone management programs of American 
Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the 
State of Hawaii. This determination has been submitted for review by 
the responsible territorial and state agencies under section 307 of the 
CZMA.

Executive Order 12866

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

National Environmental Policy Act

    This interim rule is an extension or a change in the period of 
effectiveness of a regulation that has been subject to prior analyses 
supporting a finding of no significant impact determination. As such, 
NMFS has determined that this action is categorically excluded from the 
need to prepare an Environmental Assessment or an Environmental Impact 
Statement, pursuant to NOAA Administrative Order 216-6, Section 
6.03d.4(a).

Regulatory Flexibility Act

    This interim rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is issued without opportunity for 
prior public comment.

List of Subjects in 50 CFR Part 300

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

    Dated: December 27, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 300--INTERNATIONAL FISHERIES REGULATIONS

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

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


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

0
2. In Sec.  300.223, paragraphs (a)(1)(i), (a)(1)(ii), (a)(1)(iii), and 
introductory text to paragraphs (b), (c)(1), (d)(3), and (e)(2) are 
revised to read as follows:


Sec.  300.223  Purse seine fishing restrictions.

* * * * *
    (a) * * *
    (1) * * *
    (i) For each of the years 2009, 2010, 2011, and 2012 there is a 
limit of 3,882 fishing days.
    (ii) For each of the two-year periods 2009-2010, 2010-2011, and 
2011-2012, there is a limit of 6,470 fishing days.
    (iii) For each of the three-year periods 2009-2011 and 2010-2012, 
there is a limit of 7,764 fishing days.
* * * * *
    (b) Use of fish aggregating devices. From August 1 through 
September 30, 2009, and from July 1 through September 30 in each of 
2010, 2011, and 2012, owners, operators, and crew of fishing vessels of 
the United States shall not do any of the following in the Convention 
Area:
* * * * *
    (c) Closed areas. (1) Effective January 1, 2010, through December 
31, 2012, a fishing vessel of the United States may not be used to fish 
with purse seine gear on the high seas within either Area A or Area B, 
the respective boundaries of which are the four lines connecting, in 
the most direct fashion, the coordinates specified as follows:
* * * * *
    (d) * * *
    (3) Effective from the date announced pursuant to paragraph (d)(1) 
of this section through December 31, 2012, a fishing vessel of the 
United States equipped with purse seine gear may not discard at sea 
within the Convention Area any bigeye tuna (Thunnus obesus), yellowfin 
tuna (Thunnus albacares), or skipjack tuna (Katsuwonus pelamis), except 
in the following circumstances and with the following conditions:
* * * * *
    (e) * * *
    (2) Effective January 1, 2010, through December 31, 2012, a fishing 
vessel of the United States may not be used to fish with purse seine 
gear in the Convention Area without a WCPFC observer on board. This 
requirement does not apply to fishing trips that meet any of the 
following conditions:
* * * * *
[FR Doc. 2011-33593 Filed 12-29-11; 8:45 am]
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