01-24223. International Fisheries Regulations; Pacific Tuna Fisheries

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement fishery conservation and management measures for the U.S. purse seine fishery in the eastern Pacific Ocean (EPO) to reduce bycatch of juvenile tuna, non-target fish species, and non-fish species. These measures were recommended by the Inter-American Tropical Tuna Commission (IATTC) and approved by the U.S. Department of State (DOS), in accordance with the Tuna Conventions Act of 1950. In addition, this rule establishes reporting requirements for U.S. vessels fishing for tuna in the EPO in order to gather information that NMFS can provide to the IATTC for a regional vessel register. The vessel register will promote consistent compliance across all IATTC member nations by ensuring constant attention to fleets active in the area and aiding in identification of vessels engaged in illegal, unreported or undocumented fishing in the EPO.

DATES:

Effective October 29, 2001.

ADDRESSES:

Copies of the final environmental assessment regulatory impact review/final regulatory flexibility analysis (EA/RIR/FRFA) may be obtained from the Southwest Regional Administrator, Southwest Region, NMFS, 501 W. Ocean Blvd., Long Beach, CA 90802-4213. Send comments regarding the reporting burden estimate or any other aspect of the collection-of-information requirements in this final rule, including suggestions to reduce the burden, to the Regional Administrator, Southwest Region, and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC 20503 (ATTN: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT:

Svein Fougner, Sustainable Fisheries Division, Southwest Region, NMFS, 562-980-4030; fax [phone].

SUPPLEMENTARY INFORMATION:

Electronic Access

This Federal Register document is also accessible via the Internet at the Office of the Federal Register’s website at http://www.access.gpo.gov/​su-docs/​aces/​aces140.html. -

Background

The United States is a member of the IATTC, which was established under the Convention for the Establishment of an Inter-American Tropical Tuna Commission, signed in 1949. The IATTC was established to provide an international arrangement to ensure conservation and management of yellowfin tuna and of other fish species taken by tuna fishing vessels in the EPO (also known as the Convention Area), defined at 50 CFR part 300, subpart C, as the waters bounded by the coast of the Americas, 40° N. lat., 150° W. long., and 40° S. lat. The IATTC maintains a scientific research and fishery monitoring program, which annually assesses the status of tuna stocks and conditions in the fisheries to determine appropriate harvest levels or other measures to prevent overexploitation and promote maximum sustainable yield. The IATTC is devoting an increased amount of time and resources to assessing the need for, and recommending, conservation and management measures to deal with problems such as bycatch in the tuna fisheries. -

The actions in this final rule are intended to address concerns about bycatch in purse seine fisheries in the EPO and to establish a regional vessel register that will be useful for compliance monitoring and for management decisions affecting the many fishing gears used in the EPO to take tuna and tuna-like fishes. These measures were recommended by the IATTC and approved by the DOS. The preamble to the proposed rule published for this action (66 FR 17387, March 30, 2001, corrected at 66 FR 20419, April 23, 2001) presented the history and provisions of the action, and they are not repeated here. Pursuant to the Tuna Conventions Act, NMFS convened a public hearing on the proposed rule in San Diego, California, on April 27, 2001. -

Changes From the Proposed Rule

Several clarifications to the language contained in the proposed rule were made based on comments and recommendations that NMFS received. -

Comments and Responses

Comment 1: The rule fails to address over-capacity and overfishing. -

Response: The recommendations of the IATTC did not address these issues; therefore, the rule, which is intended to carry out the IATTC recommendations, does not address them. The IATTC staff has been charged with developing a fleet capacity program consistent with the Food and Agricultural Organization Plan of Action for fishing capacity management. -

Comment 2: The IATTC member nations are not enforcing the IATTC recommendations. -

Response: The U.S. agrees that there is concern about the uneven level of enforcement among the members and is working with them to improve this situation. A new permanent Working Group on Compliance was established and met for the first time in June 2000. Reports on the implementation of, and compliance with, IATTC recommendations will be among priority subjects for future meetings of this working group. The working group discussions should result in increased peer pressure to improve enforcement and compliance by all members. -

Comment 3: The proposed rule fails to implement time and area closures, which would be more effective in reducing bycatch. -

Response: Time and area closures are only one of several possible tools to limit bycatch, especially of juvenile tuna. The 2000 resolution, which sets the quota for yellowfin tuna included two area closures that would go into effect when the purse seine catch reached 240,000 metric tons. These were intended to ensure that juvenile yellowfin catches (which are historically higher in these areas) would be curtailed if the total yellowfin catch were high. However, catches were slow the second half of 2000, and the closures were not needed. The IATTC also agreed to and the parties implemented a 90-day closure of the purse seine fishery on floating objects (any natural object or manmade fish aggregating device around which fishing vessels may catch tuna) from September 15, 2000, to December 15, 2000. The goal of this closure was to reduce the probability of high catches of juvenile yellowfin and bigeye tuna. End-of-year data indicate that catches of juvenile tuna were indeed relatively low. -

Comment 4: The bycatch reduction provisions should be extended to all gear types that fish in the EPO. -

Response: The IATTC has historically focused on managing the tuna purse seine fisheries, which account for the bulk of tuna fishing and fishing mortality in the EPO. However, the IATTC is aware of the need to consider other fishing gears in the future. The regional vessel register should provide the initial data on the degree to which other gears are used. For the time being, however, the IATTC only recommended actions dealing with bycatch reduction in the purse seine fishery, and therefore, the proposed rule could only deal with those recommendations. However, the Pacific Fishery Management Council (Council) is preparing a fishery management plan (FMP) for highly migratory species fisheries off the West Coast. The FMP will contain management measures that, to the extent practicable, minimize bycatch and, to the extent bycatch cannot be avoided, minimize the mortality of such bycatch. -

Comment 5: The bycatch rule should last longer than 1 year. -

Response: The IATTC’s initial recommendation called for only a 1-year pilot project. At its meeting in June 2001, however, the IATTC agreed to extend the pilot project through 2002. -

Comment 6: The terms of reference for the evaluation of the effectiveness of the pilot program should be made available for review and comment. -

Response: The IATTC did not establish terms of reference for the evaluation; therefore, they are not available at this time. However, NMFS and the DOS expect the review to include the extent of application by the parties, the records of observers from initial trips (indicating both the degree of compliance and the degree of difficulties that operators may have had in implementing the measure), and the records of the amount of fish, by species and size, that were retained and discarded. Only very preliminary results were discussed at the annual meeting in June, and it was agreed that first year results would be discussed at a Bycatch Working Group meeting early in 2002. The Bycatch Working Group meetings are open to the public, and the IATTC often posts analytical results on its website. -

Comment 7: The recordkeeping and reporting requirements did not explicitly list all the information listed in the IATTC Resolution. -

Response: NMFS intends to provide to the IATTC all the data elements listed in the IATTC Resolution. NMFS already has (or has access to) much of the information needed, and will only request missing data elements from individual vessel owners. The rule requires owners to provide such information as requested by the Regional Administrator. Also, the IATTC may change the data elements needed in the future. The approach contained in the rule should allow NMFS to implement new recommendations in the future without going through additional rulemaking, although Paperwork Reduction Act (PRA) requirements will apply. -

Comment 8: The rules fail to address alternative means of harvesting free-swimming mature tuna. -

Response: NMFS appreciates the many suggestions it received concerning research and testing of alternative technological innovations that can locate and harvest mature yellowfin tuna not associated with dolphins or significant bycatch, and has provided these suggestions to the NMFS Southwest Fisheries Science Center and IATTC staff for consideration. However, since neither the IATTC recommends, nor the Tuna Convention Act mandates, the use of alternative measures for locating and harvesting mature tuna, the rule cannot require them under the Tuna Conventions Act. -

Comment 9: NMFS should have prepared an environmental impact statement (EIS) for the proposed rule. -

Response: The proposed measures are limited in scope and time, and fewer than 30 U.S. vessels are likely to be affected by this rule. Therefore, NMFS has determined that an EIS is not necessary. However, NMFS has considered the comments on this rule and modified accordingly the EA for this action. -

Comment 10: The EA is inadequate in several ways: It did not take into consideration all information before it made an unwarranted conclusion that the yellowfin stock is healthy; it did not contain an examination of the effect of bycatch reduction efforts on dolphins; and it did not take into consideration that finfish and sharks released from purse seine nets will already be dead. Further, the EA should not have been separated from the programmatic EA for the implementation of the International Dolphin Conservation Program Act (IDCPA). -

Response: NMFS agrees that the actions are related, in that both EAs address management of the U.S. purse seine fleet in the EPO. However, this rule was adopted independently of the actions under the IDCPA. The final EA for this action refers to the EA for the IDCPA to the extent necessary. -

Comment 11: The term “discard” should be defined or clarified to prevent a vessel operator from circumventing the intent of the measure by dumping dead fish from a net before bringing them on board. The intent of the measure was “full retention” of all tuna caught in a set. -

Response: The prohibition on discarding tuna (other than those unfit for human consumption) has been revised to match the language of the IATTC recommendation, which provides the circumstances under which fish should be discarded. NMFS agrees that, under this rule, a vessel operator could abort a set or terminate brailing of fish on board if it was determined that there was a large amount of small tuna or non-tuna species with little market value. If a substantial number of these fish survive, then aborting the set would be beneficial. This is one of the factors that should be considered by the IATTC in evaluating the pilot program. -

Comment 12: The term “as soon as practicable”, as used in §§ 300.28 and 300.29 of this chapter should be defined for clarification. -

Response: The language in §§ 300.28 and 300.29 has been revised to clarify the term “as soon as practicable.” Non-target species of fish must be returned to the sea as soon as practicable after the fish have been brought on board the vessel during the brailing operation and identified. -

Classification

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

NMFS prepared a FRFA describing the impact of this action on small entities. For the 2001 fishing year, the final rule requires: (1) Full retention of all tuna taken in a set and brought on board a fishing vessel, except on the last set when there might not be sufficient well space to accommodate all tuna in a set; (2) the prompt release of non-target species; and (3) the use of special procedures to release sea turtles with a minimum of injury, and to reduce overall sea turtle mortality. These measures should not have significant economic impacts. Requiring fishermen to retain all tuna caught may force the fishermen to retain fish with little market value (due to small size), resulting in lower income per trip. However, this also should result in faster filling of the vessel, incurring less total cost for a fishing trip. The net impact should be minimal. Furthermore, the requirement would reduce the time normally taken to sort the tuna catch by size and to discard small fish. Moreover, in the longterm, any reduction in discards and associated mortality should assist in maintaining the productivity of the stocks, which would benefit the fisheries through higher catches of large fish in the future, as the fish released at a small size may be caught in the future at a larger size. The requirement to promptly release non-target species essentially codifies current practice under which most if not all vessels release sea turtles, and would not generate additional cost to U.S. fishermen. The requirement to release non-target species would not prevent retention of occasional non-target species for consumption on the vessel. Finally, the measures to handle sea turtles with special care are already standard practice, and the measure relating to resuscitation of comatose sea turtles is already codified in the regulations at 50 CFR 223.206(d)(1)(i)(B) that implement the IDCPA. No added costs to fishermen will be generated. -

All of these measures would apply to U.S. purse seine vessels fishing for tuna in the EPO. From 1993 to 1997, the maximum number of U.S. tuna vessels active in the EPO was 35 vessels. Of these, 27 small vessels (less than 363 mt carrying capacity) are considered to be small business entities. None of the final measures would have any disproportionate economic impact on these small entities. -

With respect to information collection, the final rule would require reporting certain information about vessels if that information is not already being reported to Federal or state agencies under other programs. It is estimated that about 1,290 vessels would be involved. However, most of the information required for the IATTC register can be obtained from other sources, and the added reporting burden is estimated to average about 565 hours and $1,720 per year for 3 years. -

Two alternatives to the selected action were considered: A no action alternative and an additional action alternative. -

Under the no action alternative, U.S. regulations would be deferred until it is clear that other nations have placed restrictions on their vessels equal to those imposed by the U.S. Deferring implementation of these regulations at this time would not immediately have any impacts on fish stocks because the U.S. share of total fishing in the EPO is quite small, and U.S. fishermen generally try to avoid small fish already because of their low value. U.S. vessels currently take measures to minimize harm to sea turtles as well. However, this approach could result in serious long-term impacts if other nations viewed failure of the U.S. to implement regulations in a timely manner as a sign of disagreement with the measures recommended by the IATTC. The U.S. has obligations under the Tuna Conventions Act to implement such recommendations as are approved by the DOS. Failure of the U.S. to fulfill its obligations would weaken the ability of the U.S. to argue strongly for aggressive implementation and enforcement of IATTC recommendations by all other member nations.

Under the additional action alternative, the U.S. would go beyond the recommendations of the IATTC or take an alternative approach to the vessel register information collection. For example, NMFS might require vessels to abort sets if the first brailing of fish on board demonstrates that there is a certain percentage of fish below a given size. NMFS could perhaps also prohibit log sets (especially sets involving fish aggregating devices, or FADs) to ensure that bycatch will be reduced, as was done from September 15, 2000, through December 15, 2000. This would reduce bycatch. NMFS might also establish a separate EPO licensing program, with applications to include all the specific items of information specified in the IATTC recommendation. -

Taking additional actions would have greater impact on U.S. fleets than the proposed action. To prevent having to retain a large amount of low-value tuna, vessel operators probably would abort more sets than is now the case. This could put U.S. vessels at a disadvantage compared to foreign fleets. It is not clear that the benefits of further reductions would offset the loss of economic value associated with log set fishing. Log sets constitute a cost-effective fishing technique, and approaches other than closures or full retention may be equally effective in reducing bycatch. -

With respect to licensing, a single Federal license may be an efficient way to document who is fishing for these species in the EPO, to establish the universe of persons who would need to be contacted, and to determine whose fishing would need to be monitored in order to ensure adequate information for future management decisions. -

Neither of these alternatives was adopted. First, the Tuna Conventions Act does not provide authority for independent action to carry out more than the recommendations of the IATTC. Second, NMFS notes that the Council is preparing an FMP for U.S. fisheries involving highly migratory species off California, Oregon, and Washington. Appropriate conservation and management measures for the fisheries and licensing and reporting requirements are among the matters under consideration. NMFS believes it is more appropriate to defer action on approving a licensing and reporting program to carry out obligations under the Tuna Conventions Act until it is known which measures the Council will recommend and the basis for those recommendations. NMFS does not want to foreclose the Council’s options at this time and, therefore, rejected this alternative. -

An informal section 7 consultation under the Endangered Species Act was concluded by NMFS in October 2000, on the operation of the U.S. purse seine fishery under the terms of the IDCPA. The consultation concluded that the management measures considered would not jeopardize the continued existence of any listed species or result in the destruction or adverse modification of any identified critical habitat. The Regional Administrator has determined that fishing activities conducted pursuant to this rule will not affect endangered or threatened species or critical habitat in any manner not considered in prior consultations on this fishery. This action is within the scope of that earlier consultation, and no further consultations are necessary. -

This action is consistent with the Marine Mammal Protection Act, as amended by the IDCPA. -

This final rule contains a collection-of-information requirement subject to review and approval by OMB under the PRA. This requirement has been approved by OMB under control number 0648-0431. -

Public reporting burden for this collection is estimated to average 65-80 minutes per individual response. This includes the time for reviewing an information form provided by NMFS, checking the accuracy of the information, correcting erroneous information and providing information for empty elements on the form, and submitting the form with the picture to NMFS. Send comments regarding this burden estimate or any other aspect of the collection, including suggestions for reducing the burden, to NMFS and to OMB (see ADDRESSES). -

Notwithstanding any other provision of the law, no person is required to respond to, nor shall a 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

• Fisheries
• High seas fishing
• International agreements
• Permits
• Reporting and recordkeeping requirements

Dated: September 21, 2001.

William T. Hogarth,

Assistant Administrator for Fisheries, National Marine Fisheries Service.

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

PART 300—INTERNATIONAL FISHERIES REGULATIONS

Subpart C—Pacific Tuna Fisheries

1. The authority citation for subpart C continues to read as follows:

Authority: 16 U.S.C. 951-961 and 971 et seq.

2. In § 300.22, the section heading is revised; the existing paragraph is designated as paragraph (a), and a new paragraph (b) is added to read as follows:

§ 300.22

Recordkeeping and reporting.

* * * * *

(b) The owner of any fishing vessel that uses purse seine, longline, drift gillnet, harpoon, or troll fishing gear to harvest tuna in the Convention Area for sale or a person authorized in writing to serve as agent for the owner must provide such information about the vessel and its characteristics as the Regional Administrator requests to conform to IATTC actions to establish a regional register of all vessels used to fish for species under IATTC purview in the Convention Area. This initially includes, but is not limited to, vessel name and registration number; a photograph of the vessel with the registration number showing; vessel length, beam and moulded depth; gross tonnage and hold capacity in cubic meters and tonnage; engine horsepower; date and place where built; and type of fishing method or methods used.

3. In § 300.28, paragraphs (h) through (l) are added to read as follows:

§ 300.28

Prohibitions.

* * * * *

(h) Fail to retain any bigeye, skipjack, or yellowfin tuna brought on board a purse seine vessel in the Convention Area, except fish unfit for human consumption due to spoilage, and except on the last set of the trip if the well capacity is filled; -

(i) When using purse seine gear to fish for tuna in the Convention Area, fail to release any non-tuna species as soon as practicable after being identified on board the vessel during the brailing operation;

(j) Land any non-tuna fish species taken in a purse seine set in the Convention Area; -

(k) Fail to use the sea turtle handling, release, and resuscitation procedures in § 300.29(e); or

(l) Fail to report information when requested by the Regional Administrator under § 300.21.

4. In § 300.29, a new paragraph (e) is added to read as follows:

§ 300.29

Eastern Pacific fisheries management.

* * * * *

(e) Bycatch reduction measures. (1) Through December 31, 2001, all purse seine vessels must retain on board and land all bigeye, skipjack, and yellowfin tuna brought on board the vessel after a set, except fish deemed unfit for human consumption for other than reason of size. This requirement shall not apply to the last set of a trip if the available well capacity is insufficient to accommodate the entire fish catch brought on board. -

(2) All purse seine vessels must release all sharks, billfishes, rays, mahimahi (dorado), and other non-tuna fish species, except those being retained for consumption aboard the vessel, as soon as practicable after being identified on board the vessel during the brailing operation. -

(3) All purse seine vessels must apply special sea turtle handling and release procedures, as follows:

(i) Whenever a sea turtle is sighted in the net, a speedboat shall be stationed close to the point where the net is lifted out of the water to assist in release of the turtle; -

(ii) If a turtle is entangled in the net, net roll shall stop as soon as the turtle comes out of the water and shall not resume until the turtle has been disentangled and released; -

(iii) If, in spite of the measures taken under paragraphs (e)(3)(i) and (ii) of this section, a turtle is accidentally brought onboard the vessel alive and active, the vessel’s engine shall be disengaged and the turtle shall be released as quickly as practicable; -

(iv) If a turtle brought on board under paragraph (e)(3)(iii) of this section is alive but comatose or inactive, the resuscitation procedures described in § 223.206(d)(1)(i)(B) of this title shall be used before release of the turtle.