[Federal Register Volume 77, Number 166 (Monday, August 27, 2012)]
[Rules and Regulations]
[Pages 51709-51716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-21092]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 120418015-2015-01]
RIN 0648-BC14


International Fisheries; Western and Central Pacific Fisheries 
for Highly Migratory Species; Bigeye Tuna Catch Limit in Longline 
Fisheries for 2012

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

ACTION: Interim final rule; request for comments.

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SUMMARY: This interim final rule establishes a catch limit of 3,763 
metric tons (mt) of bigeye tuna (Thunnus obesus) for vessels in the 
U.S. pelagic longline fisheries in the western and

[[Page 51710]]

central Pacific Ocean (WCPO) for calendar year 2012. The limit does not 
apply to vessels in the longline fisheries of American Samoa, Guam, or 
the Commonwealth of the Northern Mariana Islands (CNMI). Once the limit 
of 3,763 mt is reached in 2012, retaining, transshipping, or landing 
bigeye tuna caught in the WCPO will be prohibited for the remainder of 
2012, with certain exceptions. 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 September 26, 2012; comments must be submitted in 
writing by September 26, 2012.

ADDRESSES: Comments on this interim final rule, identified by NOAA-
NMFS-2012-0145, and the supporting analytical documents may be sent to 
either of the two addresses below. The supporting documents include the 
2012 supplemental environmental assessment (EA) and the regulatory 
impact review (RIR) prepared for this interim rule. The 2012 
supplemental EA supplements a 2009 EA and a 2009 supplemental EA and 
includes copies of those two documents.
     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 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 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 and the 2012 supplemental EA prepared under the 
authority of the National Environmental Policy Act (NEPA) are available 
at http://www.regulations.gov or may be obtained from Michael D. 
Tosatto, NMFS PIRO (see address above). The 2012 supplemental EA 
includes copies of the documents that it supplements--a 2009 EA and a 
2009 supplemental EA.

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

SUPPLEMENTARY INFORMATION: 

Background on the Convention

    Article 3 of the Convention specifies the area of application of 
the Convention (the Convention Area), which comprises the majority of 
the 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 objective of the Convention is to ensure, through 
effective management, the long-term conservation and sustainable use of 
highly migratory fish stocks in the WCPO. To accomplish this goal, the 
Convention establishes the Commission for the Conservation and 
Management of Highly Migratory Fish Stocks in the Western and Central 
Pacific Ocean (WCPFC). The current Members of the WCPFC are Australia, 
Canada, China, Chinese Taipei (Taiwan), Cook Islands, European 
Community, Federated States of Micronesia, Fiji, France, Japan, 
Kiribati, Korea, Marshall Islands, Nauru, New Zealand, Niue, Palau, 
Papua New Guinea, Philippines, Samoa, Solomon Islands, Tonga, Tuvalu, 
United States, and Vanuatu. Certain territories also participate in the 
WCPFC as Participating Territories. The current Participating 
Territories are French Polynesia, New Caledonia and Wallis and Futuna 
(affiliated with France); Tokelau (affiliated with New Zealand); and 
American Samoa, the CNMI and Guam (affiliated with the United States).
    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 WCPFC Implementation Act further provides 
that the Secretary of Commerce shall ensure consistency, to the extent 
practicable, of fishery management programs administered under the 
WCPFC Implementation Act and the Magnuson-Stevens Fishery Conservation 
and Management Act, as well as other specific laws (see 16 U.S.C. 
6905(b)). The Secretary of Commerce has delegated the authority to 
promulgate regulations to NMFS.

WCPFC Decisions Regarding Bigeye Tuna Catch Limits in Longline 
Fisheries

    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. With respect to bigeye tuna, the WCPFC Scientific Committee 
found that the stock of bigeye tuna in the WCPO is experiencing a 
fishing mortality rate greater than the rate associated with maximum 
sustainable yield. Therefore, at its Fifth Regular Session, in December 
2008, the WCPFC adopted Conservation and Management Measure (CMM) 2008-
01, ``Conservation and Management Measure for Bigeye and Yellowfin Tuna 
in the Western and Central Pacific Ocean.'' The CMM and other decisions 
of the WCPFC can be found at http://www.wcpfc.int/conservation-and-management-measures. CMM 2008-01 has the stated objective of reducing, 
over the period 2009-2011, the fishing mortality rate for bigeye tuna 
in the WCPO by at least 30 percent from a specified historical 
baseline. Among other provisions, the CMM establishes specific catch 
limits for bigeye tuna captured in the longline fisheries of the 
WCPFC's Members, Participating Territories, and Cooperating Non-members 
for the years 2009, 2010, and 2011. The limits do not apply to 
Participating Territories or small island developing States undertaking 
responsible development of their domestic fisheries.
    The prescribed catch limits in CMM 2008-01 are based on specified 
percentages of longline catches made during specified baseline periods. 
For the United States, the baseline period is 2004, with a 
corresponding catch of 4,181 metric tons (mt). Because the baseline for 
the U.S. longline fishery is less than 5,000 mt per year, and because 
the fishery lands exclusively fresh fish, the specified annual catch 
limit for the U.S. longline fishery is 90 percent of the amount caught 
during the baseline period for each of the years 2009, 2010, and 2011, 
or 3,763 mt. On December 7, 2009, NMFS issued a final rule to implement 
the longline bigeye tuna

[[Page 51711]]

elements of CMM 2008-01 (74 FR 63999). The rule, which became effective 
December 12, 2009, established the annual catch limit of 3,763 mt of 
bigeye tuna for U.S. longline fisheries for each of the years 2009, 
2010, and 2011. On August 4, 2009, NMFS issued a separate rule to 
implement the purse seine-related provisions of CMM 2008-01 for 2009, 
2010, and 2011 (74 FR 38544).
    The WCPFC was scheduled to hold its Eighth Regular Session in early 
December 2011, to discuss, among other items, the provisions of CMM 
2008-01, such as the bigeye tuna catch limits for longline fisheries, 
that were scheduled to expire at the end of calendar year 2011. 
However, the Eighth Regular Session was unexpectedly postponed until 
March 2012. Because of that postponement, the WCPFC made an 
intersessional decision on December 20, 2011, to extend CMM 2008-01 
until the Eighth Regular Session could be held. NMFS issued an interim 
rule on December 30, 2011, extending the purse seine-related provisions 
of CMM 2008-01 (76 FR 82180). NMFS explained in that interim rule that 
longline-related provisions of the WCPFC's extension of CMM 2008-01 
would be addressed in a separate rulemaking.
    At its Eighth Regular Session, in March 2012, the WCPFC adopted a 
``Conservation and Management Measure for Temporary Extension of CMM 
2008-01'' (CMM 2011-01). This CMM extends most provisions of CMM 2008-
01, including the longline bigeye tuna catch limits applicable to the 
United States, until February 28, 2013.

The Action

    The purpose of this interim final rule is to implement the longline 
bigeye tuna provisions of CMM 2011-01. Accordingly, this interim final 
rule establishes a 2012 bigeye tuna catch limit in U.S. longline 
fisheries in the Convention Area as follows:

Establishment of the Limit

    Under CMM 2011-01, the 2012 bigeye tuna catch limit for U.S. 
longline fisheries in the Convention Area in 2012 is 3,763 mt, the same 
amount as for each of 2009, 2010, and 2011. This limit applies only to 
U.S. longline fisheries other than those of American Samoa, Guam, and 
the CNMI.
    As in CMM 2008-01, CMM 2011-01 includes longline fishery-related 
provisions specifically applicable to Participating Territories in the 
WCPFC, which include American Samoa, Guam, and the CNMI. The longline 
fisheries of Participating Territories are subject to annual bigeye 
tuna catch limits of 2,000 mt. Under the CMM, Participating Territories 
undertaking responsible development of their domestic fisheries are not 
subject to those annual limits. Because the limits under CMM 2011-01 
for the longline fisheries of American Samoa, Guam, and CNMI far exceed 
the historical bigeye tuna catches in those fisheries, implementation 
of bigeye tuna catch limits for the U.S. Participating Territories is 
not included as part of this interim final rule to establish the U.S. 
catch limit of 3,763 mt, which needs to be established before the limit 
is reached.
    For the purpose of this interim final rule, the longline fisheries 
of the three U.S. Participating Territories are distinguished from the 
other longline fisheries of the United States based on a combination of 
three factors: (1) Where the bigeye tuna are landed; (2) the types of 
Federal longline fishing permits registered to the fishing vessel; and 
(3) whether the fishing vessel is included in an arrangement under 
Section 113(a) of the Consolidated and Further Continuing 
Appropriations Act, 2012 (Pub. L. 112-55, 125 Stat. 552 et seq., 
(hereafter, CFCAA) enacted November 18, 2011).
    With respect to the first factor, bigeye tuna landed by U.S. 
vessels in any of the three U.S. Participating Territories, with 
certain provisos, will be attributed to the longline fishery of that 
Participating Territory. The provisos are that: (1) The bigeye tuna 
must not be captured in the portion of the U.S. exclusive economic zone 
(EEZ) surrounding the Hawaiian Archipelago; and (2) they must be landed 
by a U.S. fishing vessel operated in compliance with one of the permits 
required under the regulations implementing the Fishery Ecosystem Plan 
for the Pacific Pelagic Fisheries of the Western Pacific Region 
(Pelagics FEP) developed by the Western Pacific Fishery Management 
Council (WPFMC) or the Fishery Management Plan for U.S. West Coast 
Fisheries for Highly Migratory Species developed by the Pacific Fishery 
Management Council (i.e., a permit issued under 50 CFR 665.801 or 
660.707).
    With respect to the second factor, bigeye tuna that are captured by 
a fishing vessel registered for use under a valid American Samoa 
Longline Limited Access Permit will, subject to the provisos mentioned 
above, be attributed to the longline fishery of American Samoa, 
regardless of where that catch is landed. This distinction is made 
because American Samoa Longline Limited Access Permits are issued only 
to people that have demonstrated participation in the American Samoa 
pelagic fisheries, such that the catch may properly be attributed to 
that territory. The regulations implementing the bigeye tuna catch 
limits for 2009, 2010, and 2011 included these two above factors as 
well as the related provisos.
    The third factor, which was not included in the regulations 
implementing the bigeye tuna catch limits in 2009, 2010, and 2011, 
relates to the CFCAA. Section 113(a) of the CFCAA authorizes the U.S. 
Participating Territories of the WCPFC to use, assign, allocate, and 
manage catch limits or fishing effort limits agreed to by the WCPFC 
through arrangements with U.S. vessels with permits issued under the 
Pelagics FEP. Section 113(a) further directs the Secretary of Commerce, 
for the purposes of annual reporting to the WCPFC, to attribute catches 
made by vessels operating under Section 113(a) arrangements to the U.S. 
Participating Territories. Section 113(a) establishes specific 
eligibility criteria for such arrangements (discussed further below), 
and this interim final rule establishes additional requirements and 
conditions that must be met in order for catches to be attributed to 
the U.S. Participating Territories. Under this interim final rule, 
bigeye tuna caught in 2012 by a vessel that is included in an 
arrangement determined to be eligible under Section 113(a) of the CFCAA 
will be attributed by NMFS to the appropriate U.S. Participating 
Territory, according to the procedures and conditions set forth below.
    The longline fisheries of the United States and its territories 
operating in the WCPO are managed as discrete fisheries, with separate 
compilations of catch and effort statistics and separate management 
measures for each fishery. In order to allow for the orderly 
administration of these fisheries and a uniform manner of attributing 
catches to the fisheries of the U.S. Participating Territories under 
eligible Section 113(a) of the CFCAA arrangements, NMFS will wait to 
attribute catches under eligible Section 113(a) arrangements until the 
date the catch limit will be reached can be forecasted with a 
reasonable degree of certainty. Thereafter, NMFS will attribute catches 
to the fisheries of the U.S. Participating Territories under eligible 
Section 113(a) arrangements seven days before the date the U.S. catch 
limit is forecasted to be reached. This procedure will allow NMFS to 
properly administer and enforce the specific management requirements 
for each fishery throughout the year, consistent with the approved 
Pelagics FEP.
    As in 2009, 2010, and 2011, NMFS will prepare forecasts during 2012 
of the

[[Page 51712]]

date that the bigeye tuna catch limit is projected to be reached and 
will periodically make such forecasts widely available to the public, 
such as by posting on a Web site. All the forecasts prepared up until 
the time that catch attribution to the U.S. Participating Territories 
under Section 113(a) of the CFCAA actually begins will assume that 
there will be no such catch attribution to the U.S. Participating 
Territories. These forecasts will be subject to change as new 
information becomes available. Because of these potential changes, it 
is necessary to identify a particular forecast for the purpose of 
determining when catch attribution to the U.S. Participating 
Territories under eligible Section 113(a) arrangements will begin. For 
this purpose, NMFS will use the first forecast that indicates the catch 
limit will be reached within 28 days of the date of preparation of that 
forecast. The projected catch limit date in this forecast will be 
called, for the purpose of this interim final rule, the pre-Section 
113(a) attribution forecast date. As soon as NMFS determines the pre-
Section 113(a) attribution forecast date, NMFS will evaluate all 
Section 113(a) arrangements that it has received to date, based on the 
eligibility criteria specified below, and recalculate the forecast date 
for the catch limit, this time not counting as part of the tally of 
U.S. catches the catches to be attributed to the U.S. Participating 
Territories under eligible Section 113(a) arrangements. In order to 
allow NMFS a reasonable amount of time to complete this process, NMFS 
will begin attributing catches to the U.S. Participating Territories 
under eligible Section 113(a) arrangements seven days before the pre-
Section 113(a) attribution forecast date. At that time, NMFS will also 
make publicly available a new forecast date on a Web site--the post-
Section 113(a) attribution forecast date--and will update that forecast 
date as appropriate throughout 2012.
    There will be no official due date for the receipt by NMFS of 
potentially eligible CFCAA Section 113(a) arrangements. However, NMFS 
will need 14 days to process arrangements that it receives, so for an 
arrangement received after the date that NMFS determines the pre-
Section 113(a) attribution forecast date, attribution to the 
appropriate U.S. Participating Territory will start 14 days after NMFS 
has received the arrangement or seven days before the pre-Section 
113(a) attribution forecast date, whichever date is later.
    NMFS considered starting catch attribution to the U.S. 
Participating Territories under eligible CFCAA Section 113(a) 
arrangements only after the 3,763 mt catch limit is reached, in order 
to be consistent with past administration of the longline fisheries in 
the WCPO. However, given the time needed to process Section 113(a) 
arrangements and the time needed to put into effect the prohibitions 
once the 3,763 mt catch limit is reached, waiting until the catch limit 
is reached to begin attribution under arrangements with the U.S. 
Participating Territories could potentially cause public confusion and 
result in unnecessary costs in the fishery. For example, should 
attribution begin only after the catch limit is reached and the 
prohibitions go into effect, a vessel owner providing NMFS with an 
eligible arrangement a few days before the catch limit is reached would 
be subject to the prohibitions for a number of days while the 
arrangement is processed, even though the prohibitions would be later 
found not to apply to the vessel. Beginning attribution to the U.S. 
Participating Territories a short period before the pre-Section 113(a) 
attribution forecast date would help avoid the confusion and costs 
associated with such a situation. It could also have the advantage of 
avoiding, in certain circumstances, the administrative and other costs 
associated with putting the prohibitions into effect.
    In order for NMFS to attribute to the longline fishery of a U.S. 
Participating Territory bigeye tuna caught by a particular vessel 
included in an arrangement under Section 113(a) of the CFCAA, certain 
requirements under this rule must be met. First, with the exception of 
existing arrangements received by NMFS prior to the effective date of 
this interim final rule, NMFS must have received from the vessel owner 
or designated representative a copy of the arrangement at least 14 days 
prior to the date the bigeye tuna was caught. In addition, the 
arrangement must satisfy specific criteria, discussed in detail in the 
section below, to ensure that it meets the requirements of an eligible 
arrangement under Section 113(a).
    Section 113(a) of the CFCAA remains in effect until the earlier of 
December 31, 2012, or such time as the WPFMC recommends, and the 
Secretary approves, an amendment to the Pelagics FEP that would 
authorize U.S. Participating Territories to use, assign, allocate, and 
manage catch limits of highly migratory fish stocks, or fishing effort 
limits, established by the WCPFC, and the amendment is implemented via 
regulations. NMFS will take the status of that amendment into 
consideration in the development of the final rule for this action.
    Any bigeye tuna attributed to the longline fisheries of American 
Samoa, Guam, or the CNMI as provided under this rule will not be 
counted against the U.S. limit. All other bigeye tuna captured by 
longline gear in the Convention Area by U.S. longline vessels and 
retained will be counted against the U.S. limit.

Eligible Arrangements

    Under this interim final rule, an arrangement shall not be eligible 
for the attribution of bigeye tuna to the U.S. Participating 
Territories under the terms of Section 113(a) unless each of the 
following five criteria is met: (1) The arrangement must include 
vessels registered for use with valid permits issued under the Pelagics 
FEP; (2) the arrangement must impose no requirements regarding where 
the vessels fish or land their catch; (3) the arrangement must be 
signed by all the owners of the vessels included in the arrangement, or 
by their designated representative(s); (4) the arrangement must be 
signed by an authorized official of the U.S. Participating 
Territory(ies) or his or her designated representative(s); and (5) the 
arrangement must be funded by deposits to the Western Pacific 
Sustainable Fisheries Fund in support of fisheries development projects 
identified in a territory's Marine Conservation Plan adopted pursuant 
to section 204 of the Magnuson-Stevens Fishery Conservation and 
Management Act. If NMFS determines that an arrangement does not meet 
the criteria for eligibility, NMFS will notify the parties to the 
arrangement or their designated representative(s) within 14 days of 
receiving a copy of the arrangement.
    NMFS is currently aware of one existing arrangement, between the 
Government of American Samoa and the Hawaii Longline Association (HLA), 
that is subject to Section 113(a) of the CFCAA. This arrangement is set 
to expire at the end of 2012. This interim final rule is not expected 
to materially affect implementation of this arrangement under Section 
113.
    The procedures and criteria for the attribution of bigeye tuna 
catch to the U.S. Participating Territories established in this interim 
final rule are applicable only for 2012. If the WCPFC adopts catch 
limits for bigeye tuna that are applicable in 2013 or beyond, NMFS will 
review and revise the requirements of this interim final rule when 
implementing those catch limits, as appropriate, to ensure consistency 
with

[[Page 51713]]

WCPFC decisions and all applicable law.

Announcement of the Limit Being Reached

    If NMFS determines that the limit is expected to be reached before 
the end of 2012, NMFS will publish a notice in the Federal Register to 
announce specific fishing restrictions that will be effective from the 
date the limit is expected to be reached until the end of the 2012 
calendar year. NMFS will publish the notice of the restrictions at 
least seven calendar days before the effective date to provide 
fishermen with advance notice. As stated above, periodic forecasts of 
the date the limit is expected to be reached will be made widely 
available to the public, such as by posting on a Web Site, to help 
fishermen plan for the possibility of the limit being reached.

Prohibited Activities After the Limit Is Reached

    (1) Retain on board, transship, or land bigeye tuna: Starting on 
the effective date of the restrictions and extending through December 
31, 2012, it will be prohibited to use a U.S. fishing vessel to retain 
on board, transship, or land bigeye tuna captured in the Convention 
Area by longline gear, except as follows:
    First, any bigeye tuna already on board a fishing vessel upon the 
effective date of the restrictions may be retained on board, 
transshipped, and/or landed, provided that they are landed within 14 
days after the restrictions become effective. A vessel that has 
declared to NMFS pursuant to 50 CFR 665.803(a) that the current trip 
type is shallow-setting is not subject to this 14-day landing 
restriction.
    Second, bigeye tuna captured by longline gear may be retained on 
board, transshipped, and/or landed if they are captured by a fishing 
vessel registered for use under a valid American Samoa Longline Limited 
Access Permit or if they are landed in American Samoa, Guam, or the 
CNMI, with the following provisos: The bigeye tuna must not have been 
caught in the portion of the U.S. EEZ surrounding the Hawaiian 
Archipelago and must be landed by a U.S. fishing vessel operated in 
compliance with a valid permit issued under 50 CFR 660.707 or 665.801.
    Third, bigeye tuna captured by longline gear may be retained on 
board, transshipped, and/or landed if they were caught by a vessel that 
is included in an eligible arrangement under Section 113(a) of the 
CFCAA, as specified above, and the bigeye tuna are subject to 
attribution to the longline fishery of American Samoa, Guam, or the 
CNMI in accordance with the terms of the arrangement, and to the extent 
consistent with the requirements and procedures established in this 
interim final rule, with the following proviso: NMFS must have received 
from the vessel owner or designated representative a copy of the 
arrangement at least 14 days prior to the activity (i.e., the retention 
on board, transshipment, or landing). The advance notification 
provision will not apply to existing arrangements received by NMFS 
prior to the effective date of this interim final rule.
    (2) Transshipment of bigeye tuna to certain vessels: Starting on 
the effective date and extending through December 31, 2012, it will be 
prohibited to transship bigeye tuna caught in the Convention Area by 
longline gear to any vessel other than a U.S. fishing vessel operated 
in compliance with a valid permit issued under 50 CFR 660.707 or 
665.801.
    (3) Fishing inside and outside the Convention Area: To help ensure 
compliance with the restrictions related to bigeye tuna caught by 
longline gear in the Convention Area, this interim rule establishes two 
additional, related prohibitions that will be in effect starting on the 
effective date and extending through December 31, 2012. First, it will 
be prohibited to fish with longline gear both inside and outside the 
Convention Area during the same fishing trip, with the exception of a 
fishing trip that is in progress at the time the announced restrictions 
go into effect. In that exceptional case, the vessel will still be 
required to land any bigeye tuna taken in the Convention Area within 14 
days of the effective date of the restrictions, as described above. 
Second, if a vessel is used to fish using longline gear outside the 
Convention Area and 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 while 
the vessel is in the Convention Area. These two prohibitions do not 
apply to the following vessels: (1) Vessels on declared shallow-setting 
trips pursuant to 50 CFR 665.803(a); and (2) vessels operating for the 
purposes of this rule as part of the longline fisheries of American 
Samoa, Guam, or the CNMI (including vessels registered for use under 
valid American Samoa Longline Limited Access Permits; vessels landing 
their bigeye tuna catch in one of the three U.S. Participating 
Territories, so long as these vessels conduct fishing activities in 
accordance with the provisos described above; and vessels included in 
an eligible arrangement under Section 113(a) of the CFCAA, as specified 
above, provided that their catches of bigeye tuna are subject to 
attribution to the longline fishery of American Samoa, Guam, or the 
CNMI at the time of the activity).

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, because those 
requirements are contrary to the public interest and impracticable. 
Because of the unexpected postponement of the Eighth Regular Session of 
the WCPFC due to a power outage in the host country, CMM 2011-01 was 
not agreed upon by the WCPFC as the replacement measure for CMM 2008-01 
until March 30, 2012. Pursuant to CMM 2011-01, this rule establishes 
requirements applicable to U.S. fishing vessels that catch, retain, 
transship or land bigeye tuna in the Convention Area in 2012. Further 
delaying implementation of a WCPFC conservation and management measure 
intended to establish annual limits for a bigeye tuna stock that is 
subject to overfishing would be contrary to the public's interest 
because without implementation, there are no limits on U.S. longline 
bigeye tuna catches in the WCPO. Such a result would also violate NMFS' 
obligations under the Magnuson-Stevens Fishery Conservation and 
Management Act for the proper management of fishery resources and be 
inconsistent with the United States' international legal obligations.
    Moreover, the requirements in this rule are substantially similar 
to the regulations established in 2009 that were applicable during the 
years 2009-2011 (to implement WCPFC CMM 2008-01). With the exception of 
the catch attribution provisions related to implementation of Section 
113(a) of the CFCAA, all the requirements in this rule were subject to 
prior notice and opportunity for public comment in 2009 (proposed rule 
published July 8, 2009, 74 FR 32521; final rule published December 7, 
2009, 74 FR 63999).
    With respect to the catch attribution provisions related to 
implementation of Section 113(a) of the CFCAA, this interim final rule 
establishes a process allowing for the orderly administration of these 
fisheries and a uniform manner of attributing catches to the fisheries 
of the U.S. Participating Territories under

[[Page 51714]]

eligible Section 113(a) arrangements. Without waiving prior notice and 
prior opportunity for public comment on this interim final rule, it is 
unlikely that NMFS would be able to implement the requirements of 
Section 113(a) of the CFCAA prior to the annual limit established here 
being reached in 2012. As stated above, NMFS will determine the pre-
Section 113(a) attribution forecast date for the catch limit as soon as 
the catch forecast indicates that the limit will be reached within 28 
days. At that time, NMFS will begin the process to attribute bigeye 
tuna catch to the appropriate U.S. Participating Territories. A new 
forecast date--the post-Section 113(a) attribution forecast date--will 
be made publicly available on a Web site seven days before the pre-
Section 113(a) attribution forecast date. If NMFS were to provide the 
public prior notice and an opportunity to comment on this rule before 
making effective this interim final rule, it is unlikely that NMFS 
would be able to establish the catch limit before the pre-Section 
113(a) attribution forecast date is reached. Given the time generally 
needed to consider public comments and to prepare and to make effective 
a final rule incorporating those comments, NMFS would not be able to 
establish the process for attributing catch to the U.S. Participating 
Territories under eligible Section 113(a) arrangements before the pre-
Section 113(a) attribution forecast date is determined in 2012. 
Additionally, the process for attribution under Section 113(a) 
arrangements could affect the behavior of the fishery prior to closure, 
and in this interim final rule NOAA provides guidance as early as 
possible so as to allow fishers to plan for the fishing season.
    Finally, NMFS must implement the 2012 longline bigeye tuna catch 
limit in CMM 2011-01 before the limit is reached in order to satisfy 
international legal obligations and to ensure there is no gap in the 
implementation of important conservation measures for bigeye tuna in 
the Pacific Ocean, which is subject to overfishing.
    Accordingly, we find that it would be contrary to the public 
interest and impracticable to the United States' ability to meet its 
international obligations to delay implementation of the catch limit 
provisions in order to hold a prior comment period on the CFCAA Section 
113(a)-related provisions.
    Therefore, NMFS finds it is impracticable and contrary to the 
public interest to provide prior notice and prior opportunity for 
public comment on this interim final rule. A comment period is provided 
by this interim final rule, and comments on the interim final rule will 
be considered prior to publication of the final rule.

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

    NMFS prepared an EA and Supplemental EA in 2009 to evaluate the 
environmental effects of the implementation of the bigeye tuna catch 
limits for U.S. longline fisheries for 2009, 2010, and 2011. NMFS has 
prepared a Supplemental EA that builds upon the analyses in the 2009 EA 
and Supplemental EA, and evaluates the effects of this interim final 
rule on the human environment. NMFS has determined that there will be 
no significant impact on the human environment as a result of this 
interim final rule and an Environmental Impact Statement need not be 
prepared.

Regulatory Flexibility Act

    Because prior notice and opportunity for public comment are not 
required for this rule by 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., are inapplicable.

List of Subjects in 50 CFR Part 300

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

    Dated: August 21, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the 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.  300.222, paragraphs (bb) through (dd) are revised to read 
as follows:


Sec.  300.222  Prohibitions.

* * * * *
    (bb) Use a fishing vessel to retain on board, transship, or land 
bigeye tuna captured by longline gear in the Convention Area or to fish 
in contravention of Sec.  300.224(f)(1) or (f)(2).
    (cc) Use a fishing vessel to fish in the Pacific Ocean using 
longline gear both inside and outside the Convention Area on the same 
fishing trip in contravention of Sec.  300.224(f)(3).
    (dd) Fail to stow longline gear as required in Sec.  300.224(f)(4).

0
3. Section 300.224 is revised to read as follows:


Sec.  300.224  Longline fishing restrictions.

    (a) Establishment of bigeye tuna catch limit. There is a limit of 
3,763 metric tons of bigeye tuna that may be captured in the Convention 
Area by longline gear and retained on board by fishing vessels of the 
United States during the 2012 calendar year.
    (b) Exception for bigeye tuna landed in territories. Bigeye tuna 
landed in American Samoa, Guam, or the Commonwealth of the Northern 
Mariana Islands will be attributed to the longline fishery of the 
territory in which it is landed and will not be counted against the 
limit established under paragraph (a) of this section, provided that:
    (1) The bigeye tuna were not caught in the portion of the EEZ 
surrounding the Hawaiian Archipelago; and
    (2) The bigeye tuna were landed by a fishing vessel operated in 
compliance with a valid permit issued under Sec.  660.707 or Sec.  
665.801 of this title.
    (c) Exception for bigeye tuna caught by vessels with American Samoa 
Longline Limited Access Permits. Bigeye tuna caught by a vessel 
registered for use under a valid American Samoa Longline Limited Access 
Permit issued under Sec.  665.801(c) of this title will be attributed 
to the longline fishery of American Samoa and will not be counted 
against the limit established under paragraph (a) of this section, 
provided that:

[[Page 51715]]

    (1) The bigeye tuna were not caught in the portion of the EEZ 
surrounding the Hawaiian Archipelago; and
    (2) The bigeye tuna were landed by a fishing vessel operated in 
compliance with a valid permit issued under Sec.  660.707 or Sec.  
665.801 of this title.
    (d) Exception for bigeye tuna caught by vessels included in Section 
113(a) arrangements. Bigeye tuna caught in 2012 by a vessel that is 
included in an arrangement under the authorization of Section 113(a) of 
Public Law 112-55, 125 Stat. 552 et seq., the Consolidated and Further 
Continuing Appropriations Act, 2012, will be attributed to the longline 
fishery of American Samoa, Guam, or the Commonwealth of the Northern 
Mariana Islands, according to the terms of the arrangement to the 
extent they are consistent with this section and applicable law, and 
will not be counted against the limit, provided that:
    (1) NMFS has received a copy of the arrangement from the vessel 
owner or a designated representative at least 14 days prior to the date 
the bigeye tuna was caught, except that this requirement shall not 
apply to any arrangement provided to NMFS prior to the effective date 
of this paragraph;
    (2) The bigeye tuna was caught on or after the ``start date'' 
specified in paragraph (g)(2) of this section; and
    (3) NMFS has determined that the arrangement satisfies the 
requirements of Section 113(a) of Public Law 112-55, 125 Stat. 552 et 
seq., the Consolidated and Further Continuing Appropriations Act, 2012, 
in accordance with the criteria specified in paragraph (g)(3) of this 
section.
    (e) Announcement of catch limit being reached and fishing 
prohibitions. NMFS will monitor retained catches of bigeye tuna with 
respect to the limit established under paragraph (a) of this section 
using data submitted in logbooks and other available information. After 
NMFS determines that the limit is expected to be reached by a specific 
future date, and at least seven calendar days in advance of that 
specific future date, NMFS will publish a notice in the Federal 
Register announcing that specific prohibitions will be in effect 
starting on that specific future date and ending December 31, 2012.
    (f) Prohibitions after catch limit is reached. Once an announcement 
is made pursuant to paragraph (e) of this section, the following 
restrictions will apply during the period specified in the 
announcement:
    (1) A fishing vessel of the United States may not be used to retain 
on board, transship, or land bigeye tuna captured by longline gear in 
the Convention Area, except as follows:
    (i) 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. The 14-day landing requirement 
does not apply to a vessel that has declared to NMFS, pursuant to Sec.  
665.803(a) of this title, that the current trip type is shallow-
setting.
    (ii) Bigeye tuna captured by longline gear may be retained on 
board, transshipped, and/or landed if they are landed in American 
Samoa, Guam, or the Commonwealth of the Northern Mariana Islands, 
provided that:
    (A) The bigeye tuna were not caught in the portion of the EEZ 
surrounding the Hawaiian Archipelago;
    (B) Such retention, transshipment, and/or landing is in compliance 
with applicable laws and regulations; and
    (C) The bigeye tuna are landed by a fishing vessel operated in 
compliance with a valid permit issued under Sec.  660.707 or Sec.  
665.801 of this title.
    (iii) Bigeye tuna captured by longline gear may be retained on 
board, transshipped, and/or landed if they are caught by a vessel 
registered for use under a valid American Samoa Longline Limited Access 
Permit issued under Sec.  665.801(c) of this title, provided that:
    (A) The bigeye tuna were not caught in the portion of the EEZ 
surrounding the Hawaiian Archipelago;
    (B) Such retention, transshipment, and/or landing is in compliance 
with applicable laws and regulations; and
    (C) The bigeye tuna are landed by a fishing vessel operated in 
compliance with a valid permit issued under Sec.  660.707 or Sec.  
665.801 of this title.
    (iv) Bigeye tuna captured by longline gear may be retained on 
board, transshipped, and/or landed if they were caught by a vessel that 
is included in an arrangement under the authorization of Section 113(a) 
of Public Law 112-55, 125 Stat. 552 et seq., the Consolidated and 
Further Continuing Appropriations Act, 2012, if the arrangement 
provides for the bigeye tuna when caught to be attributed to the 
longline fishery of American Samoa, Guam, or the Commonwealth of the 
Northern Mariana Islands, provided that:
    (A) NMFS has received a copy of the arrangement at least 14 days 
prior to the activity (i.e., the retention on board, transshipment, or 
landing), unless NMFS has received a copy of the arrangement prior to 
the effective date of this section;
    (B) The ``start date'' specified in paragraph (g)(2) of this 
section has occurred or passed; and
    (C) NMFS has determined that the arrangement satisfies the 
requirements of Section 113(a) of Public Law 112-55, 125 Stat. 552 et 
seq., the Consolidated and Further Continuing Appropriations Act, 2012, 
in accordance with the criteria specified in paragraph (g)(3) of this 
section.
    (2) Bigeye tuna caught by longline gear 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.  665.801 of this title.
    (3) A fishing vessel of the United States, other than a vessel that 
catches bigeye tuna catch that is to be attributed to the longline 
fishery of American Samoa, Guam, or the Commonwealth of the Northern 
Mariana Islands in accordance with paragraphs (b), (c), or (d) of this 
section, or a vessel for which a declaration has been made to NMFS, 
pursuant to Sec.  665.803(a) of this title, that the current trip type 
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 (e) 
of this section, in which case the bigeye tuna on board the vessel 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.
    (4) If a fishing vessel of the United States, other than a vessel 
that catches bigeye tuna catch that is to be attributed to the longline 
fishery of American Samoa, Guam, or the Commonwealth of the Northern 
Mariana Islands, in accordance with paragraphs (b), (c), and (d) of 
this section, or a vessel for which a declaration has been made to 
NMFS, pursuant to Sec.  665.803(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, while in the Convention Area, 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

[[Page 51716]]

a manner that it is not readily available for use.
    (g) Procedures and conditions for Section 113(a) arrangements. This 
paragraph establishes procedures to be followed and conditions that 
must be met with respect to arrangements authorized under Section 
113(a) of Public Law 112-55, 125 Stat. 552 et seq., the Consolidated 
and Further Continuing Appropriations Act, 2012. These procedures and 
conditions apply to paragraphs (d), (f)(1)(iv), (f)(3), and (f)(4) of 
this section.
    (1) For the purpose of this section, the ``pre-Section 113(a) 
attribution forecast date'' is the date the catch limit established 
under paragraph (a) of this section is forecast by NMFS to be reached, 
assuming that no catches would be attributed to the longline fisheries 
of American Samoa, Guam, or the Commonwealth of the Northern Mariana 
Islands under arrangements authorized under Section 113(a) of Public 
Law 112-55, 125 Stat. 552 et seq., the Consolidated and Further 
Continuing Appropriations Act, 2012. Since forecasts are subject to 
change as new information becomes available, NMFS will use for this 
purpose the first forecast it prepares that indicates that the date of 
the limit being reached is less than 28 days after the date the 
forecast is prepared.
    (2) For the purpose of this section, the ``start date'' for 
attribution of catches to the longline fisheries of American Samoa, 
Guam, or the Commonwealth of the Northern Mariana Islands for a 
particular arrangement is:
    (i) For arrangements copies of which are received by NMFS no later 
than the date NMFS determines the pre-Section113(a) attribution 
forecast date, seven days before the pre-Section 113(a) attribution 
forecast date; and
    (ii) For arrangements copies of which are received by NMFS after 
the date NMFS determines the pre-Section 113(a) attribution forecast 
date, 14 days after the date that NMFS receives a copy of the 
arrangement or seven days before the pre-Section 113(a) attribution 
forecast date, whichever is later.
    (3) NMFS will determine whether an arrangement satisfies the 
requirements of Section 113(a) of Public Law 112-55, 125 Stat. 552 et 
seq., the Consolidated and Further Continuing Appropriations Act, 2012, 
for the attribution of bigeye tuna to the longline fishery of American 
Samoa, Guam, or the Commonwealth of the Northern Mariana Islands 
according to the following criteria:
    (i) Vessels included under the arrangement must be registered for 
use with valid permits issued under the Fishery Ecosystem Plan for 
Pacific Pelagic Fisheries of the Western Pacific Region;
    (ii) The arrangement must not impose any requirements regarding 
where the vessels included in the arrangement fish or land their catch;
    (iii) The arrangement must be signed by the owners of all the 
vessels included in the arrangement or their designated 
representative(s);
    (iv) The arrangement must be signed by an authorized official of 
American Samoa, Guam, or the Commonwealth of the Northern Mariana 
Islands or his or her designated representative(s); and
    (v) The arrangement must be funded by deposits to the Western 
Pacific Sustainable Fisheries Fund in support of fisheries development 
projects identified in the Marine Conservation Plan of American Samoa, 
Guam, or the Commonwealth of the Northern Mariana Islands adopted 
pursuant to section 204 of the Magnuson-Stevens Fishery Conservation 
and Management Act.
    (4) NMFS will notify the parties to the arrangement or their 
designated representative(s) within 14 days of receiving a copy of the 
arrangement, if the arrangement does not meet the criteria specified in 
paragraph (g)(3) of this section.

[FR Doc. 2012-21092 Filed 8-24-12; 8:45 am]
BILLING CODE 3510-22-P