[Federal Register Volume 62, Number 138 (Friday, July 18, 1997)]
[Rules and Regulations]
[Pages 38485-38487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18912]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 285
[Docket No. 960816226-7172-05; I.D. 061897C]
RIN 0648-AJ04
Atlantic Tuna Fisheries; Regulatory Adjustments
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to amend the regulations governing
the Atlantic tuna fisheries to prohibit the use of aircraft to assist
fishing vessel operators in the location and capture of Atlantic
bluefin tuna (ABT), with the exception of vessels permitted in the
Purse Seine and Harpoon categories, and to establish a deadline for
permit category changes for 1997 only. These regulatory amendments are
necessary to achieve the domestic management objectives for the
Atlantic tuna fisheries.
DATES: Effective July 14, 1997.
ADDRESSES: Copies of supporting documents, including an Environmental
Assessment and Regulatory Impact Review (EA/RIR), are available from,
Rebecca Lent, Chief, Highly Migratory Species Management Division,
Office of Sustainable Fisheries (F/SF1), NMFS, 1315 East-West Highway,
Silver Spring, MD 20910-3282.
FOR FURTHER INFORMATION CONTACT: John Kelly, 301-713-2347.
SUPPLEMENTARY INFORMATION: The Atlantic tuna fisheries are managed
under the authority of the Atlantic Tunas Convention Act (ATCA). The
ATCA authorizes the Secretary of Commerce (Secretary) to issue
regulations as may be necessary to carry out the recommendations of the
International Commission for the Conservation of Atlantic tunas
(ICCAT). The authority to issue these regulations has been delegated
from the Secretary to the Assistant Administrator for Fisheries, NOAA
(AA).
Background information about the need for revisions to the Atlantic
tunas fishery regulations was provided in the preamble to the proposed
rule (62 FR 9726, March 4, 1997) and is not repeated here. All measures
in the proposed rule, except for the prohibition on the use of
aircraft, were addressed in an earlier final rule (62 FR 30741, June 5,
1997). Additionally, NMFS issued an interim final rule that suspended
the May 15 deadline for switching permit categories for calendar year
1997 until the remaining regulatory issues which could influence
category selection were resolved and a new deadline set. Final quotas
were published on June 30, 1997 (62 FR 35107) and the spotter aircraft
issue is addressed by this final rule. As there are no remaining
regulatory issues to be resolved that would influence category
selection, vessel owners now have sufficient information to select an
appropriate permit category for 1997. The deadline for switching permit
categories for calendar year 1997 is set as July 28, 1997. After 1997,
the deadline will revert to May 15.
Relation to Proposed Consolidation
The regulatory amendments contained in this final rule, when
proposed, were drafted to be consistent with a proposed rule to
consolidate all of the regulations for Atlantic highly migratory
species (HMS) fisheries, published on November 6, 1996 (61 FR 57361).
The proposed consolidation would group all regulations pertaining to
Atlantic HMS under 50 CFR part 630. The final consolidated regulations
have not yet been issued. Accordingly, the regulatory amendments
contained in this final rule were revised to make the appropriate
changes to the existing text at 50 CFR part 285. The regulatory
amendments contained in this final rule will eventually be incorporated
into the final consolidated regulations at 50 CFR part 630. Copies of
the proposed consolidation rule may be obtained by writing (see
ADDRESSES) or calling the contact person (see FOR FURTHER INFORMATION
CONTACT).
Spotter Aircraft Prohibition
Since the mid-1980's, fishery participants have raised concerns
that the use of spotter aircraft in the ABT fishery accelerates catch
rates and compromises conservation, equal opportunity and safety. In
1996, a voluntary agreement was signed by the majority of active tuna
aircraft spotters that would limit their activity in the General
category to harpoon vessels. NMFS recognized that the voluntary
agreement warranted a trial period but also indicated that the agency
would continue to monitor the situation and would take appropriate
action if necessary. Fishery management concerns continue to be
expressed, anecdotal information suggests that the number of spotter
aircraft has increased, and vessel safety issues continue to be raised.
Accordingly, NMFS has reconsidered the need to take action. By this
final rule, the use of aircraft to assist fishing vessel operators in
the location and capture of ABT, with the exception of vessels
operating in the Harpoon and Purse Seine categories, is prohibited.
These regulatory changes will improve NMFS' ability to achieve domestic
management objectives for the Atlantic tuna fisheries.
Comments and Responses
NMFS conducted several public hearings on the proposed rule and
received written and oral comments over a 30-day comment period. Nearly
two thousand comments (letters and comments) were received regarding
the proposed ban on spotter aircraft. Responses to the comments on the
spotter aircraft issue are provided below.
Comment: Those in favor of the prohibition commented that it would
restore equal opportunity for vessels of different categories and
lengthen the Harpoon and General category seasons without the use of
further effort controls.
Response: Although data on the use and effects of spotter aircraft
on the ABT fishery are not sufficient for a quantitative analysis of
impacts, it is undeniable that there is a decrease in search time when
spotter aircraft are used. Data regarding recent closures in the
General and Harpoon categories support the conclusion that seasons are
shortened. The International Commission for the Conservation of
Atlantic Tunas (ICCAT) has recognized the effect of spotter aircraft on
catch rates; in 1996, ICCAT adopted a recommendation that the use of
spotter aircraft by purse seine vessels in the Mediterranean be
prohibited due to the aircrafts' effect of accelerating catch rates.
NMFS agrees that the use of spotter aircraft accelerates catch rates.
Accelerated catch rates are inconsistent with the regulatory goal of
extending the ABT season for the General and Angling categories, and
with actions taken this year and in previous years to accomplish that
goal. Extending the season for the rod-and-reel fisheries in these two
categories helps improve scientific monitoring of the stock by allowing
catch-per-unit-effort (CPUE) data collection over a wider geographical
area and a longer period of time. Extending the season also provides
fishing opportunities over a wider area. Data from the Harpoon and
Purse Seine categories have not been
[[Page 38486]]
incorporated into any of the currently usable CPUE indices, therefore
the effect of spotter aircraft accelerating catch rates in these
categories is less significant for scientific monitoring.
Comment: Some commenters questioned why the Purse Seine category is
exempted from the prohibition on the use aircraft to locate and capture
ABT.
Response: The purse seine fishery in the United States is managed
under an individual vessel quota program; therefore, the Purse Seine
category allocation cannot be exceeded. It is within each vessel's
discretion to use aircraft that may have the effect of accelerating
catch rates by assisting in locating schools of large fish. The Purse
Seine category does not provide CPUE data for stock assessment.
Likewise, Harpoon category CPUE data are not currently used to assess
the ABT stock. The harpoon fishery is managed under a quota program
which is monitored on a real-time basis through landing cards.
Accordingly, accelerated catch rates would not likely cause the quota
to be exceeded.
Comment: Some constituents indicated that spotter aircraft aid in
aerial surveys and enforcement, and in the provision of emergency
assistance for boats and marine mammals. Constituents argued that a ban
would affect stock assessments, potentially increase undersized
discards and mortality, and be impossible to enforce. Some argued that
the use of aircraft is historical and should be considered as another
type of fishing gear. Others noted that the banning of spotter aircraft
would compromise the safety of vessels at sea.
Response: NMFS will continue to work with spotter pilots, industry
members and organizations, and scientific researchers to develop an
aerial index of abundance that can be used in stock assessments. The
comments on the effects of a spotter aircraft ban with respect to the
harpoon fishery are noted. Exempting the Harpoon category preserves the
status quo for that category. Regarding enforcement, there is a
commitment by industry members to work with NMFS enforcement by
providing information on potential violations of fishery regulations.
NMFS enforcement agents are special investigators and have been trained
to collect the necessary evidence to build a successful case.
Information suggests near collisions of spotter aircraft due to
multiple aircraft flying at low altitude, and near collisions of
fishing vessels due to aircraft attracting too many vessels to the same
area.
Comment: Some General and Harpoon category permit holders expressed
concern that NMFS would not decide the spotter aircraft issue until
after May 15, the last day to change categories.
Response: Given the significance of spotter aircraft use in making
a permit category selection, NMFS extended indefinitely the deadline
for category selection for 1997 (62 FR 27518, May 20, 1997). With the
publication of this final rule, NMFS establishes a deadline for
selecting a permit category in 1997 of July 28, 1997.
Comment: Comments were received noting that the proposed ban on
spotter aircraft would have a significant impact on a substantial
number of small entities in that 83 percent of the fish spotters would
be forced out of business.
Response: These commenters submitted no data to NMFS which would
justify this claim. The greater part of the spotter aircraft activity
currently occurs in the Purse Seine and Harpoon categories. By
exempting these two categories from the prohibition on the use of
spotter aircraft, the impact of the prohibition on aerial fish spotters
is substantially lessened.
Further, the aerial fish spotting business is only a small portion
of the small business aviation sector. While some spotter pilots will
likely suffer revenue losses, no evidence is available to NMFS that the
majority of small aviation businesses derive all or most of their
income from services provided to ABT fishing vessels.
Comment: The proposed rule would have a significant economic impact
on a substantial number of small entities within the meaning of the
Regulatory Flexibility Act and NMFS should prepare a Regulatory
Flexibility Analysis.
Response: See discussion of Regulatory Flexibility Act in the
Classification section below.
Changes from the Proposed Rule
For the reasons stated above, NMFS exempts Harpoon category vessels
from the prohibition on spotter aircraft use. Other than that
exemption, the final rule remains as proposed. All measures in the
proposed rule, except for the prohibition on the use of aircraft, were
addressed in an earlier final rule (62 FR 30741, June 5, 1997).
Additionally, NMFS issued an interim final rule that suspended the May
15 deadline for switching permit categories for calendar year 1997
until the remaining regulatory issues which could influence category
selection were resolved and a new deadline set. Final quotas were
published on June 30, 1997 (62 FR 35107) and the spotter aircraft issue
is addressed by this final rule. As there are no remaining regulatory
issues to be resolved that would influence category selection, vessel
owners now have sufficient information to select an appropriate permit
category for 1997. The deadline for switching permit categories for
calendar year 1997 is set as July 28, 1997.
Classification
This rule is published under the authority of ATCA, 16 U.S.C. 971
et seq. The Assistant Administrator has determined that the regulations
in this final rule are necessary for management of the Atlantic tuna
fisheries.
NMFS prepared an EA for this final rule with a finding of no
significant impact on the human environment. In addition, an RIR was
prepared with a finding of no significant impact.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that the proposed rule, if adopted,
would not have a significant economic impact on a substantial number of
small entities, therefore no Regulatory Flexibility Analysis was
prepared. That certification covered not only the proposed spotter
aircraft prohibition, but the other provisions of the rule published in
an earlier final rule (62 FR 30741, June 5, 1997).
During the comment period, NMFS received comments from the public
that the proposal to ban the use of spotter aircraft in all but the
Purse Seine category exceeded the threshold for significant impact on a
substantial number of small entities. The aerial fish spotting business
is only a small portion (less than 2 percent) of the small businesses
in the ABT fishing sector, and for that matter, the aerial fish
spotting business is only a very small portion of the small business
aviation sector. While there may be some loss of revenue to small
aircraft businesses that engage in fish spotting activities, no
evidence is available to NMFS that the majority of revenues to these
businesses is from ABT fish spotting. Further, the greater part of the
spotter aircraft activity currently occurs in the Purse Seine and
Harpoon categories. By exempting these two categories from the
prohibition on the use of spotter aircraft, the impact of the
prohibition on aerial fish spotters is substantially lessened.
Accordingly, there is no basis to change the conclusion of that the
spotter aircraft prohibition provision of the rule will not have a
significant economic impact on a substantial number of
[[Page 38487]]
businesses. Thus, a Final Regulatory Flexibility Analysis was not
prepared.
This final rule has been determined to be not significant for
purposes of E.O. 12866.
The AA has determined that there is good cause to waive partially
the 30-day delay in the effective date normally required by 5 U.S.C.
Sec. 553(d). The fishery is currently underway and further delay in
implementing the prohibition on the use of spotter aircraft in
assisting ABT vessels in other than the Harpoon and Purse Seine
categories would be contrary to the public interest by reducing the
likelihood of achieving the desired effects of this rule. The desired
effects of the rule are to extend the season to provide improved
scientific monitoring and fishing opportunities for the rod-and-reel
fisheries. Further, providing a 30-day delay in the effective date is
unnecessary since the only act necessary to come into compliance with
the prohibition is to cease ABT aircraft spotting activity. Therefore
the ban is effective July 14, 1997. A two-week period for changing
permit categories is necessary for vessel operators to gather relevant
information, decide on the appropriate category, and submit an
application for the category change. Given NMFS' ability to rapidly
communicate these rule changes to fishing interests through the FAX
network and NOAA weather radio, NMFS feels it is sufficient to
implement the spotter aircraft prohibition immediately and allow
fourteen days in which to make requests for permit category changes.
List of Subjects in 50 CFR Part 285
Fisheries, Fishing, Penalties, Reporting and recordkeeping
requirements, Treaties.
Dated: July 14, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble 50 CFR part 285 is amended
as follows:
PART 285--ATLANTIC TUNA FISHERIES
1. The authority citation for part 285 continues to read as
follows:
Authority: 16 U.S.C. 971 et seq.
2. In Sec. 285.2, definition for ``Aircraft'' is added to read as
follows:
Sec. 285.2 Definitions.
* * * * *
Aircraft means any contrivance used for flight in air.
* * * * *
3. In Sec. 285.21, paragraph (b)(7) is revised to read as follows:
Sec. 285.21 Vessel Permits.
* * * * *
(b) * * *
(7) Except for purse seine vessels for which a permit has been
issued under this section, an owner may change the category of the
vessels's Atlantic tunas permit to another category by application on
the appropriate form to NMFS or by dialing 1-888-USA-TUNA before the
specified deadline. After the deadline, the vessel's permit category
may not be changed to another category for the remainder of the
calendar year, regardless of any change in the vessel's ownership. For
1997, the deadline is July 28, 1997. In years after 1997, the deadline
for category changes is May 15.
* * * * *
4. In Sec. 285.31, paragraph (a)(40) is added to read as follows:
Sec. 285.31 Prohibitions.
* * * * *
(a) * * *
(40) Fish for, catch, possess or retain, or attempt to fish for,
catch, possess or retain Atlantic bluefin tuna by means, aid, or use of
any aircraft, unless holding a valid permit in the Harpoon or Purse
Seine category under Sec. 285.21.
* * * * *
5. In Sec. 285.33, the heading is revised, the existing paragraph
is designated as paragraph (a), and paragraph (b) is added to read as
follows:
Sec. 285.33 Gear restrictions.
* * * * *
(b) Aircraft. Other than for a vessel holding a valid permit in the
Harpoon or Purse Seine category under Sec. 285.21(a), locating, fishing
for, catching, taking, retaining or possessing ABT by means, aid, or
use of any aircraft is prohibited.
[FR Doc. 97-18912 Filed 7-14-97; 4:13 pm]
BILLING CODE 3510-22-F
