[Federal Register: December 24, 2003 (Volume 68, Number 247)]
[Rules and Regulations]
[Page 74504-74512]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24de03-20]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No.031028268-3321-02; I.D. 091603F]
RIN 0648-AR12
Atlantic Highly Migratory Species; Bluefin Tuna Season and Size
Limit Adjustments
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: Under the framework provisions of the Fishery Management Plan
for Atlantic Tunas, Swordfish, and Sharks (HMS FMP) governing the
Atlantic bluefin tuna (BFT) fishery, NMFS amends the regulations
regarding the opening date of the Purse seine category, closure dates
of the Harpoon and General categories, and size tolerances of large
medium BFT for the Purse seine and Harpoon categories. The intent of
this final rule is to further achieve domestic management objectives
under the HMS FMP and Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act) and to implement recommendations
of the International Commission for the Conservation of Atlantic Tunas
(ICCAT) pursuant to the Atlantic Tunas Convention Act (ATCA).
DATES: This rule is effective on January 23, 2004, except for Sec.
635.27(a)(1)(i)(C) which is effective December 24, 2003.
ADDRESSES: Copies of the supporting documents including the
Environmental Assessment/Regulatory Impact Review/Final Regulatory
Flexibility Analysis (EA/RIR/FRFA) and the Fishery Management Plan for
Atlantic Tunas, Swordfish, and Sharks (HMS FMP) may be obtained from
Dianne Stephan, Highly Migratory Species Management Division, NMFS,
Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930.
These documents are also available from the Highly Migratory Species
Division Web site at http://www.nmfs.noaa.gov/sfa/hmspg.html.
FOR FURTHER INFORMATION CONTACT: Dianne Stephan at (978) 281-9397.
SUPPLEMENTARY INFORMATION: Atlantic tunas are managed under the dual
authority of the Magnuson-Stevens Act and ATCA. ATCA authorizes the
Secretary of Commerce (Secretary) to implement binding recommendations
of ICCAT. The authority to issue regulations under the Magnuson-Stevens
Act and ATCA has been delegated from the Secretary to the Assistant
Administrator for Fisheries, NOAA (AA).
Background information regarding these regulatory changes was
provided in the preamble to the proposed rule (68 FR 63747, November
10, 2003), and is not repeated here. By this final rule, NMFS announces
the new Purse seine start date of July 15; the new Harpoon category
closure date of November 15 or when the quota is reached, whichever
comes first; the General category closure date of January 31 or when
the quota is reached, whichever comes first; and new large medium BFT
tolerances for the Purse seine and Harpoon categories. The large medium
tolerance limit for each vessel in the Purse seine category is 15
percent by weight of that vessel's
[[Page 74505]]
annual landings, and the large medium tolerance for the Harpoon
category is two BFT per vessel per day.
Changes From the Proposed Rule
Several sections of regulatory text have been modified to be
consistent with the change to the Purse seine category start date,
specifically, Sec. 635.28 (a)(2) and Sec. Sec. 635.71(b)(10) and
(b)(17). In addition, the final rule also includes a provision to delay
the Purse seine category start date to no later than August 15 should
it further assist in achieving the objective of the rule to reduce gear
conflicts or overlap between fishing categories.
Comments and Responses
Comment 1 - NMFS received numerous comments in favor of a change in
the Purse seine category start date from August 15 to July 15. Many
commenters supported the July 15 Purse seine category start date for a
variety of reasons including providing a greater length of time over
which to spread Purse seine category landings, providing more time for
purse seine vessels to catch their quota, and providing more
opportunity to fish when the weather is better. In supporting the July
15 start date, some commenters stated that as the bulk of General
category landings now occur later in the year than they had occurred
when the August 15 purse seine start date was originally established,
the date should be adjusted to July 15. Commenters stated that this
change would be consistent with the original purpose of a purse seine
start date that reduces overlap between fishing categories. One
commenter also stated that currently the peak General category and
Purse seine category landings coincide, which results in negative
economic impacts for all in the fishery. This commenter noted that
although a change to July 15 may negatively affect the Harpoon
category, the proposed increase in allowance of two large mediums per
vessel per day for the Harpoon category may mitigate these negative
impacts by providing more of an opportunity for the Harpoon category to
attain its quota by July 15, prior to the commencement of the Purse
seine category fishing season.
Response - The final action establishes a start date for the Purse
seine category of July 15. The intent of this action is to maximize
positive economic impacts to the BFT fishery as a whole while
minimizing negative impacts to the Harpoon category. Increasing the
length of the season for the Purse seine category should help alleviate
the overlap of large catches in the late summer and fall by allowing
for the distribution of purse seine catches throughout more of the
season, should improve market prices in the Purse seine and General
categories, and would minimize gear conflict on the water. The increase
of the Harpoon category large medium retention limit may mitigate
impacts by improving the ability of the Harpoon category to land the
annual quota, perhaps prior to the commencement of the Purse seine
category season. In addition, the final rule includes a provision for
delaying the start date to no later than August 15 if a delay would
further reduce gear conflicts or overlap between the different
categories. Any adjustment to the start date would be filed with the
Office of the Federal Register but would not be filed less than 14
calendar days prior to July 15. Because there are only five vessels in
the Purse seine category, NMFS will be able to provide actual notice to
the affected fishermen.
Comment 2 - NMFS also received comments suggesting alternative
start dates for the Purse seine category as well as other commercial
fishing categories. Some commenters opposed to a July 15 Purse seine
category start date supported the status quo August 15 date, and stated
that the slower, late fall market could probably better withstand the
fiscal impacts of large purse seine catches. One commenter preferred a
start date for the Purse seine category later than August 15 and
creation of an earlier start date than June 1 for the commercial
handgear categories to reduce overlap. One commenter specifically
requested an earlier season opening date of the General and Harpoon
categories on May 1. A few commenters supported a purse seine start
date earlier than July 15, and a number of commenters specifically
requested that all categories start on the same date. One commenter
requested that the purse seine season be open year-round.
Response - NMFS analyses for this action determined that with the
status quo purse seine start date of August 15, the early fall market
for the overall fishery suffers from reduced ex-vessel prices that are
temporally associated with the height of Purse seine and General
category landings. A July 15 start date is intended to shift purse
seine landings to earlier in the season and improve ex-vessel prices
during the early fall, which is when the General category harvests most
of its quota. Alternative dates do not appear to meet the objectives of
the rulemaking to assist overall fishery prices and avoid overlap
between the Purse seine and General categories. A start date later than
August 15 would shorten the season and could thereby negatively affect
the ability of the Purse seine category to harvest its quota, which
contradicts one objective of this final rule. A start date earlier than
July 15 would allow for a longer period of time during which purse
seine and harpoon landings would overlap and therefore could increase
negative impacts to the Harpoon category, which are somewhat mitigated
by the increase in the large medium tolerance for that category.
Harmonizing all commercial fishery start dates to the same date would
undermine the objective of this action to minimize gear conflicts on
the water and to improve ex-vessel prices. Opening the start date for
any fishery prior to June 1 would require adjustment of the fishing
year, which must be accomplished through an FMP amendment. A year-round
fishery for the Purse seine category was not considered as an
alternative since it does not address the need to reduce gear conflicts
identified in the original purpose for this action. However, as it is
likely that market conditions and landing rates will vary among
categories and from fishing year to fishing year the final rule
includes a provision to provide some flexibility for adjusting the
commencement of the Purse seine start date to no later than August 15.
Comment 3 - Several commenters opposed a July 15 start date because
it was inconsistent with a current industry agreement regarding
operations of spotter aircraft in the purse seine fishery. For this
reason, one commenter supported a July 28 start date. The commenter
noted that this fishing year was relatively calm regarding spotter
plane activity and that the fishery would benefit from a permanent
regulation regarding a July 28 start date for purse seine operations
and their associated spotter aircraft.
Response - The 2003 fishing year was the first year for
implementation of an industry agreement regarding the use of spotter
planes throughout the industry. The July 28 start date for purse seine
vessels and associated spotter aircraft established in the industry
agreement is not an enforceable provision of NMFS regulations and could
change based on revised industry arrangements. Consequently, it could
be problematic to link season openings to actions not in NMFS control.
NMFS recognizes the benefits of industry communication and cooperation
on the issue of use of spotter planes in the fishery, and encourages
the industry to continue to work together towards a constructive
arrangement. The final rule includes a provision to provide some
flexibility to the commencement of the Purse seine start date and any
influence of spotter
[[Page 74506]]
planes on landings rates could be considered as part of the
deliberations to delay the opening from July 15 to a more appropriate
date but no later than August 15.
Comment 4 - Several comments were received regarding quota
allocation to the Purse seine category, the impact of purse seine
landings on the market, and timing of BFT market forces on ex-vessel
prices in general. Several commenters stated that the purse seine
fishery interfered with both the General and Harpoon category
fisheries, that the Purse seine category should be eliminated
altogether, and the quota redistributed among the other commercial
categories with higher ex-vessel value landings. These comments noted
that there has been ample opportunity for purse seine vessels to catch
available quota, i.e., if they had chosen to fish off southern states
later in the season, and that purse seine fishing operations this year
tended to disrupt the biology and behavior of the fish as well as other
traditional fishing patterns and agreements. A commenter stated that
shifting the start date to avoid market gluts was not going to help as
the volume of fish landed by purse seiners would flood the market
regardless of when they were landed. Several commenters noted that
adjustment of start and opening dates among the categories would not
necessarily assist prices of ex-vessel landings as the markets in Japan
were dominated by imports from other countries. In addition, they noted
that Japan had business interests in farm raised BFT in pens around the
world and could control the flow of tuna from these pens depending on
the Japanese domestic market need. A few commenters also mentioned that
there was now a strong U.S. domestic market for BFT and that
controlling or even banning imports of BFT into the United States could
provide stronger prices for U.S. domestic fishermen for BFT destined
for internal domestic markets.
Response - One of the purposes of this action is to provide modest
changes to the current timing of several commercial categories to
assist in increasing economic yield in the fishery overall. To achieve
this objective, NMFS analyzed means of decreasing the overlap of the
General category and Purse seine category fisheries to improve market
conditions and reduce conflicts as these two fishing categories are
responsible for the greatest amount of landings in the BFT fishery.
This action was intended to provide modest adjustments, pending
development of an FMP amendment, to address allocation issues that have
arisen. The final rule provides flexibility for fine tuning of the
commencement of the Purse seine category between July 15 and August 15
to further assist in achieving the objective of reducing gear conflicts
and overlap between fishing categories based on, among others, data
from landings and market conditions. NMFS recently published a Notice
of Intent to prepare an FMP amendment (68 FR 40907; July 9, 2003) which
will address BFT allocation as well as other issues. Elimination of the
Purse seine category would require an FMP amendment as well.
Information from ICCAT's Bluefin Statistical Document Program indicates
that Japan imports BFT from many countries and that the U.S. domestic
market for BFT has grown over the past several years. Controlling this
international flow of product to improve United States domestic prices
is beyond the purview of this rulemaking and would involve
international trade negotiations with careful consideration of
consequences to existing trade treaties and agreements. While this
action will not be able to address BFT imports, it will provide modest
adjustments to alleviate overlap in sectors of the U.S. Atlantic BFT
fisheries, which could contribute to improved ex-vessel prices and
reduce gear conflicts on the water.
Comment 5 - Comments were generally in favor of the November 15 end
date for the Harpoon category. Commenters supported implementation of
the end date as a means of preserving the Harpoon category quota for
the traditional fishery. A few comments were opposed to establishing an
end date. One comment stated it was creating two different standards
for categories within the fishery especially when NMFS was considering
extending the General category season. A few commenters requested that
the end date be established on November 1.
Response - The final action includes a November 15 end date for the
Harpoon category. This action is intended to maintain the Harpoon
category quota for the traditional Gulf of Maine fishery, which upholds
the purpose of the 1980 action that established the Harpoon category
(45 FR 40118; June 13, 1980). Unlike other categories, the original
intent of this fishery and quota allocation was for a particular
geographic sector of traditional harpoon fishermen. November 15 is the
approximate date by which most or all BFT have migrated out of the Gulf
of Maine area. By closing the fishery on November 15, fishermen in
other areas will not be able to land BFT against the Harpoon category
quota. However, use of a harpoon to harvest BFT will continue to be
available to all fishermen under the General category when the General
category season is open. NMFS did not consider a November 1 end date
because BFT landings in New England have occurred in mid-November, and
November 15 attempts to provide the traditional fishery with all
available opportunities to harvest the quota while still avoiding
investment in a fishery outside the New England area.
Comment 6 - NMFS received several comments in favor of extending
the General category end date. Many commenters supported the temporal
extension of the General category fishery to include a winter fishery
off south Atlantic states, and noted the important economic
contribution this fishery makes to the local economy. Several
commenters noted that they had invested in this fishery by purchasing
equipment and needed more certain annual access to the fishery as
opposed to depending upon potential remaining late season quota. One
commenter stated that the 2003 quota increase from ICCAT would provide
for this action with minimal impact on the summer and fall New England
General category fishery. Other commenters noted that this would
address some of the concerns raised by the North Carolina Division of
Marine Fisheries petition, such as providing more fair and equitable
access to BFT when they are available off the south Atlantic coast. A
number of commenters requested that the January 31 season end date be
applicable for the 2003 fishing year, i.e., for January 2004.
Response - The final action includes a January 31 end date for the
General category season. The intent of this action is to more broadly
distribute General category fishing opportunities both temporally and
geographically. Although there may be a small negative impact on
General category fishermen in the northern areas of the fishery, NMFS
agrees that the recent increase in the ICCAT quota as well as NMFS'
continuing management of the fishery with annual specifications and
inseason actions will minimize these impacts. In addition, northern
area General category vessels could mitigate impacts by traveling south
to participate in the winter fishery. This action addresses, in part, a
petition for rulemaking submitted by the North Carolina Division of
Marine Fisheries to provide a reasonable opportunity for southern
fishermen to harvest BFT when they are available in the southern area.
NMFS published a Federal Register notice requesting public comment on
the petition (67 FR 69502; November 18, 2002), and received 28 comments
which ranged from support to opposition.
[[Page 74507]]
Other aspects of the petition relate to changes in the BFT quota
allocations, which would require an FMP amendment process with further
analyses and input from the HMS Advisory Panel (AP) and the public. The
AP generally supported a late season commercial General category
fishery for southern Atlantic states, depending upon the details and
impacts on other fishery participants. In particular, AP members were
generally supportive of using some proportion of the additional BFT
quota allocated by ICCAT in 2002 towards meeting the objectives of the
petition. The AP will revisit BFT allocation issues at its next meeting
scheduled for February 9 - 11, 2004.
Comment 7 - Several commenters were opposed to extending the
General category season and recommended alternative General category
closure dates. A few commenters stated that the fishery off North
Carolina was a new fishery rather than a traditional fishery, and thus
should not be considered in setting the General category season and no
extension should be provided. Several commenters proposed an
alternative end date for the General category season of November 30,
and requested that the General category retention limits early in the
season be increased in order to provide northern area fishermen with a
greater opportunity to harvest the quota. Several comments stated
concern that if the General category was open during December, there
may not be enough quota for the extended fishery in January and thus
preferred opening the General category for either December or January
but not both. Other comments suggested providing for a distinct set-
aside quota and time period for a North Carolina fishery.
Response - The intent of this action is to more broadly distribute
General category fishing opportunities both temporally and
geographically and provide for an increase in optimum yield for the
fishery overall. At the time of development of the HMS FMP, the General
category quota tended to be harvested prior to the migration of BFT to
waters off the southern states. However, since that time, the fishery
has changed and General category quota has been available later into
the season. Unlike the Harpoon category quota, the General category
quota was not established for use solely by a traditional New England
fishery. The potential increase in gross revenues provided by a winter
General category fishery could help maximize optimum yield for the BFT
fishery overall. Reallocation of quota among time periods or
establishing set-aside quotas for particular areas would require an FMP
amendment and is beyond the scope of this rulemaking. These issues may
be addressed in HMS FMP Amendment Two which is currently under
development. A Notice of Intent to prepare this amendment was published
in the Federal Register on July 9, 2003 (68 FR 40907).
Comment 8 - Comments were generally in favor of the increase in
tolerance limit for the Harpoon category. Commenters stated that this
fishery is selective, that it is fair and equitable to adjust the
tolerance if doing so for the Purse seine category, and an increase in
the tolerance limit would not result in an increase in dead discards. A
few commenters opposed any tolerance of large medium BFT. One commenter
noted that the decrease in availability of giant BFT and any concerns
regarding additional mortality of large medium were insignificant when
compared to mortality of small fish in the eastern Atlantic and
Mediterranean.
Response - The final action increases the tolerance limit for large
medium BFT retention in the Harpoon category to two fish per vessel per
day. The intent of this action is to balance mortality of pre-spawning
fish with the requirement to provide a reasonable opportunity for the
Harpoon category to attain its annual quota while avoiding dead
discards. Although NMFS stated at the proposed rule stage that logbooks
were not expected to be implemented, it is clear that additional
information about at-sea operations is needed in order to better
evaluate the affect of tolerance limits on dead discards and overall
mortality of pre-spawning BFT. NMFS will pursue collection of such
information through the implementation of previously approved vessel
logbook and/or observer programs. To avoid duplication, existing
programs for other fisheries such as the Northeast Region Vessel Trip
Report will be evaluated relative to developing HMS specific reporting
mechanisms.
Comment 9 - NMFS received comments both in favor of and opposed to
the proposed increase in tolerance limit for the Purse seine category.
Some commenters were opposed to any increase in tolerance limit, while
others opposed the proposed tolerance in favor of a higher one.
Many commenters who were in favor of the change in tolerance limits
stated that purse seine vessels would not target smaller fish as a
result of a tolerance limit increase. Some commenters also noted that
the mortality of undersized fish in the purse seine fishery was
negligible when compared with mortality of small fish in the east
Atlantic or even mortality of small fish in the U.S. Angling category.
Commenters stated that increasing tolerance was particularly relevant
when one considered the new data regarding mixing rates between east
and west Atlantic stocks, and the uncertainty of BFT size and age at
maturity.
Some commenters opposed to an increase in tolerance limit stated
that the preferred alternative (15 percent by weight) would result in
purse seine vessels targeting smaller fish, and could result in an
increase of dead discards. Many commenters requested a thorough study
of the effect of any increase in tolerance limits on dead discards. A
commenter stated that purse seine vessels already had many advantages
over other fishing categories, and that perhaps larger mesh nets would
reduce catch of undersized BFT. Another commenter noted that there is a
higher mortality associated with release of undersized BFT from purse
seine nets compared to those released alive off hook-and-line. This
commenter could only support up to a 50-percent increase if observers
were deployed on all vessels; otherwise both trip and annual limits
should remain the same. At least one commenter specifically requested
that a trip limit remain in place for the Purse seine category.
Several commenters suggested a higher tolerance limit than that
proposed, and some suggested waiving the tolerance limit all together
and proposed a 73-inch (185.4 cm) minimum size for the Purse seine
category. A commenter stated that there is a large potential for
discards and wasted mortality because of the preponderance of schools
of mixed BFT sizes, and suggested that the tolerance be increased to 50
percent by weight as a form of mitigation. This commenter stated that
approximately 315 more large medium BFT would be harvested at a 25
percent tolerance limit than a 15 percent tolerance limit, and that 315
more BFT would be biologically insignificant. Several commenters
broadened this request to establish 73-inch as a minimum size for all
commercial fishing categories. Several commenters emphasized the need
for the United States to ensure all possible quota is utilized in order
to support domestic needs at ICCAT negotiations. A number of commenters
referred to the 25-percent tolerance limit provided in year 2003
exempted fishing permits (EFPs), and encouraged NMFS to continue with
what they considered a successful approach.
Response - The final action includes an increase in tolerance for
large
[[Page 74508]]
medium BFT in the Purse seine category of up to 15 percent of landings
(by weight). The intent of this action is to balance mortality of large
medium BFT while increasing the ability of the Purse seine category to
catch the annual quota. NMFS has determined that only a modest increase
in large medium tolerance is appropriate at this time, in light of the
uncertainty of the effect of a greater tolerance limit on overall
mortality of large mediums including dead discards, stock rebuilding,
and dead discards of undersized BFT. NMFS estimates that an increase in
the tolerance limit of up to 50 percent would result in an additional
direct mortality of approximately 1,066 more large medium BFT over the
current status quo direct mortality of 251 fish, i.e. over a four-fold
increase.
Data from the 2003 season, which relaxed tolerance limits for the
purse seine fishery to 25 percent under EFPs, show that purse seine
vessels were able to increase landings over 2002 levels with the
increased tolerance limit. Further evaluation of this data, in addition
to socio-economic data to be provided from the 2003 EFP fishery, will
assist NMFS with future management of this fishery sector, including
compliance and enforcement of revised tolerance limits. NMFS will be
collecting data on dead discards and other variables in this fishery
through previously approved programs including vessel logbooks and/or
observers. Additional data regarding discard rates and mortality of
large medium BFT in the Purse Seine category will help to determine the
biological impacts of adjusting the tolerance limits.
Comment 10 - One commenter requested that electronic comments via
email be accepted in the future.
Response - NMFS has implemented pilot programs which accepted
electronic comments for past rulemakings with some success. The agency
intends to pursue the use of electronic media for public comment in the
near future.
Comment 11 - One commenter noted that reciprocity should be
established for commercial fishermen from other states to fish in North
Carolina waters.
Response - The issue of fishing access in state waters by out of
state fishermen is a matter of state jurisdiction and not under the
purview of NMFS. However, NMFS notes that the State of North Carolina
has provided reciprocity for commercial BFT fishermen from other
states. In order to fish commercially for BFT in North Carolina, BFT
commercial fishermen from other states are now able to obtain a
``license to sell'' which allows them to sell their catch in North
Carolina. Out of state vessels are also allowed to fish within state
waters with a permit from North Carolina Division of Marine Fisheries.
Comment 12 - A commenter suggested providing a ``mulligan'' or
tolerance limit of some set number of undersized fish per vessel in all
categories that would allow vessels to retain and land accidentally
caught undersized fish and reduce discards. The commenter stated that
this approach could also help reduce incentives to sell these
undersized fish illegally, and that the Japanese market has a
preference for these smaller sized fish and offers relatively higher
prices per pound.
Response - Adjusting size limits or tolerance limits for reasons
other than improving the ability of the Purse seine and Harpoon
categories to harvest their respective quotas was beyond the objective
for this action. A more comprehensive approach towards eliminating dead
discards will be addressed in HMS Amendment Two.
Comment 13 - Comments were received regarding decreasing quotas for
all species; eliminating the use of gill nets, seine nets, longlines,
and harpoons; and including environmentalists on agency panels. One
commenter noted that an ecosystem imbalance caused by a reduction in
the number of herring available in New England waters has resulted in a
decreased availability of BFT in New England. Many commenters opposed
the recent closing of the BFT Angling category.
Response - These issues are outside the scope of the current
rulemaking. NMFS has issued a notice of intent for preparation of an
amendment to the HMS FMP (68 FR 40907; July 9, 2003) which could
address many of these issues, as well as others, during the FMP
amendment process. The Herring fishery is managed under the Herring
Fishery Management Plan and is currently in the amendment process. The
New England Fisheries Management Council is the responsible council for
the Herring FMP amendment and has analyzed several alternatives for
action that include considerations of the impact of herring on elements
of the ecosystem such as predator- prey relationships. The BFT Angling
category was closed on November 17 (68 FR 64990, November 18, 2003)
because of recent data indicating an over-harvest of this category in
2002. NMFS is reviewing these data to determine if further action is
necessary.
Classification
This final rule is published under the authority of the Magnuson-
Stevens Act and ATCA. The AA has determined that the regulations
contained in this final rule are necessary to implement the
recommendations of ICCAT and to manage the domestic Atlantic HMS
fisheries. NMFS has determined that these regulations are consistent
with the Magnuson-Stevens Act, ATCA and ICCAT recommendations.
This action relieves a restriction by extending the BFT General
category end date until January 31, thus providing this category with
approximately 30 more days in the fishing season. The General category
closed on December 10 because the General category had attained its
quota. However, there is additional quota available in other categories
that NMFS intends to transfer into the General category in January
2004, after updating and reviewing landings data. This action will re-
open the General category to fishing through January 31 to allow for
the harvest of the additional quota. Therefore, pursuant to 5 U.S.C.
553(d)(1), the 30-day delayed effectiveness period is not applicable to
Section 635.27(a)(1)(i)(c), the General category end date provision.
NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) for
the proposed rule and submitted it to the Chief Counsel for Advocacy of
the Small Business Administration. No comments were received on the
IRFA concerning the economic impact of this final rule. A summary of
the FRFA is provided below.
The analysis for the FRFA examines the impacts of the alternatives
for adjusting the Purse seine category start date, establishing a
Harpoon category end date, adjusting the General category end date, and
adjusting the retention limit for large medium BFT in the Harpoon and
Purse seine category fisheries on small entities. The purpose of this
final action is to ensure the BFT fishery is managed consistently with
the objectives of the HMS FMP and its implementing regulations,
applicable statutes including the Magnuson-Stevens Act and ATCA, and
the 1998 ICCAT Rebuilding Plan for western Atlantic BFT.
The analysis for the FRFA assesses the impacts of the various
alternatives on the vessels that participate in the BFT fisheries, all
of which are considered small entities. This final action would affect
vessels in three permit categories, namely the Purse seine, Harpoon,
and General categories. The gross revenues for 2002, and number of
vessels to date for 2003 for
[[Page 74509]]
each category are as follows: General category, $13.9 million, 6,797
vessels; Purse seine category, $3.0 million, 5 vessels; and the Harpoon
category, $0.5 million, 59 vessels.
Three alternatives were analyzed for the adjustment of the Purse
seine category start date, including the no action/status quo
alternative of an August 15 start date, the same start date as all
other categories - June 1, and the selected alternative of a July 15
start date. These alternatives were evaluated to determine their
ability to improve optimum yield and ex-vessel prices for the Purse
seine and General categories while minimizing negative impacts to other
commercial categories, specifically the Harpoon category. Because of
the various factors that affect ex-vessel prices for BFT (i.e., supply,
quality, etc.), the exact effect of different Purse seine category
season start dates on ex-vessel prices is unknown. NMFS estimated these
impacts by assuming that the amount of product on the market was the
primary factor affecting ex-vessel prices.
Under the no action alternative, both the General and Purse seine
categories appear to be negatively affected by depressed ex-vessel
prices which appears to result from a mid-season glut of BFT on the
market. However, under this alternative the Harpoon category benefits
with higher ex-vessel prices early in the season before the Purse seine
category commences.
Another alternative, opening the Purse seine category on June 1,
could shift Purse seine category landings to earlier in the year and
result in positive impacts for the Purse seine and General categories
by relieving the mid-season market glut and distributing landings more
uniformly over the fishing year. However, the Harpoon category could
suffer the most negative impacts under this alternative because of the
overall net increase in early season landings resulting from the
overlap with the Purse seine category fishery season that would
increase by 76 days. This overlap would occur during the time period
when the Harpoon category traditionally experiences the best ex-vessel
prices and on average annually lands the bulk (87 percent) of its
product.
The selected alternative of a July 15 start date appears to
minimize the negative impacts on the Harpoon category by reducing by
more than half the amount of overlap with the Purse seine category
season relative to the June 1 start date alternative, while still
reducing the mid-season market glut, which should positively impact
Purse seine and General category ex-vessel prices. Under this
alternative, increase in overlap with the Harpoon category would be
reduced to 30 days and such overlap would occur during the time period
when the Harpoon category averages approximately 26 percent of its
gross revenues annually. Due to the large amount of landings, gross
revenues and numbers of participants attributed to the Purse seine and
General category commercial BFT sectors, this alternative is expected
to provide the greatest positive impacts to the BFT fishery as a whole,
even though the smaller Harpoon category may experience slightly
negative economic impacts. Any negative impact to the Harpoon category
could be partially mitigated by the increase in this final rule of the
Harpoon category tolerance limit for large medium BFT to two fish per
vessel per day, which would improve the ability of the Harpoon category
to catch its annual quota. In addition, in response to comment, the
final rule for this alternative includes a provision for delaying the
start date to no later than August 15 if such a delay would further
reduce gear conflicts or overlap between the different categories. Any
adjustment to the start date would be filed with the Office of the
Federal Register but would not be filed less than 14 calender days
prior to July 15. Because there are only five vessels in the Purse
seine category, NMFS will be able to provide actual notice to the
affected fishermen.
Three alternatives were also considered for the Harpoon category
end date. The no action/status quo alternative would maintain an open
Harpoon category season year round, provided there is Harpoon category
quota available. Alternative two (selected) would close the Harpoon
category season on November 15, and alternative three would establish a
flexible season end date based on the actual dates of the BFT fall
migration.
The no action/status quo alternative is expected to result in
negative impacts for the traditional northern Harpoon category fishery
since BFT could be harvested under the Harpoon category quota in areas
outside the New England area, thereby reducing the quota available to
the traditional fishery. In addition, the status quo may encourage the
development of, and investment in, a southern area Harpoon category
fishery, which has not yet occurred.
Alternative two is designed to maintain the Harpoon category quota
for the traditional New England fishery and impact only the Harpoon
category vessels. This alternative is selected as it is expected to
provide positive impacts for the traditional New England Harpoon
category fishery since it would close the fishery near the time period
when BFT migrate out of the New England area. Negative impacts to
southern area fishermen interested in participating in the Harpoon
category fishery under this alternative are expected to be negligible
since there had been no BFT landings against the Harpoon category quota
in such area prior to 2002, few vessels have participated in the
Harpoon category fishery in the south Atlantic since that time, and
there has been little investment in gear and equipment in a Harpoon
category fishery outside of the New England area. Finally, vessel
owners/operators that fish outside the traditional New England area
that wish to use a harpoon as a primary gear type would still be
allowed to do so under the General category permit, albeit under
General category retention limits and restrictions.
The third alternative is also designed to affect only Harpoon
category vessels and maintain the Harpoon category quota for the
traditional New England fishery. Unlike the status quo and alternative
two, it could provide additional positive impacts to the traditional
New England Harpoon category fishery since it would more closely track
the BFT fall migration, and could eliminate the landing of any BFT
under the Harpoon category quota outside of the area of the traditional
fishery. However it could be difficult to administer due to the
difficulty in tracking the BFT migration and may lead to uncertainty
for members within the Harpoon category regarding closure of the
fishery. Alternative three also would have negligible impacts on
southern area fishermen, for the same reasons noted above for
alternative two.
The General category season is scheduled to end on December 31 of
each fishing year or when the General category quota is harvested,
whichever comes first. A winter fishery for large medium and giant BFT
has existed in the south Atlantic since the early 1990s, and when quota
is available, fish have been harvested under the General category. Two
alternatives (in addition to the no action/status quo alternative) were
considered that would both extend the General category season to
provide southern Atlantic fishermen with more access to the General
category BFT quota in the late fall and winter. Under the status quo
the General category season would close on December 31 regardless of
whether the full allocated quota has been attained or not. Southern
area fishermen have been adversely affected this closure date as it
occurs when BFT appear off southern states and commercial fishing
opportunities
[[Page 74510]]
have been denied to them after December 31.
Alternative two (selected) would move the General category end date
to January 31 of each fishing year. Overall economic impacts of this
alternative to the General category BFT fishery as a whole would be
neutral since the same overall amount of the General category quota
would be landed and the value of the General category quota would not
be changed. General category fishermen in the northern region may
experience negative economic and social impacts, when compared to the
status quo, since any unharvested quota as of December 31 would
otherwise be rolled over to the following year. General category
fishermen in the southern region would be positively affected by this
alternative as it would allow greater utilization of existing
investment in gear and equipment if quota was still available for
harvest after December 31, and since BFT are usually available in the
southern region during the end of the calender year due to the fall
migration from the north.
Under alternative three, extending the General category end date to
May 31, overall impacts would again be neutral but northern General
category fishermen could be more negatively affected and southern
region fishermen could be more positively affected, due to the BFT fall
migration, and depending on the amount of quota that remains after the
season would have usually been closed. Alternative two was the
alternative selected since it minimizes negative impacts to northern
area fishermen by providing a more limited southern fishery extension
and provides positive impacts for southern area fishermen by allowing
further utilization of gear and equipment previously invested in a
southern area large medium and giant BFT fishery. Negative impacts on
northern area fishermen could be slightly mitigated if they are willing
to travel south late in the season, provided there is reciprocity among
different states' permitting costs and out-of-state fishermen are
allowed under a coastal state's regulations to participate in a BFT
commercial fishery, regardless of whether it occurs in federal or state
waters.
As discussed above, the Purse seine and Harpoon categories have
recently experienced difficulties in landing the full annual quota
provided for each of these categories with the result of decreased
annual gross revenues. Each alternative considered would modify the
tolerance limits for landing large medium BFT and was analyzed to
determine the increased likelihood of harvesting the respective quotas
in the designated time frames while balancing any ecological impacts of
increased fishing mortality against the potential to reduce dead
discards. As NMFS currently has insufficient information on discards,
data will be collected through previously approved information
collection programs (i.e., vessel logbooks and/or observers) to
determine the effect of adjusting tolerance limits for large medium BFT
in the Harpoon and Purse seine categories on mortality of pre-spawning
fish and the ability of these categories to harvest allocated quotas.
Alternative one, the no action/status quo alternative, has had
negative impacts with a resulting decrease in optimum yield for both
the Purse seine and Harpoon categories since they have been unable to
land and sell the full allotted quota. Alternatives two, three, and
four, all related solely to the Purse seine category, were all designed
to increase access to large medium BFT for the Purse seine category and
to increase the possibility of full quota attainment while balancing
the need to control overall mortality and increased pressure on the
large medium size class of BFT. Alternative two removes the 10-percent
annual tolerance limit and maintains the 15-percent trip limit which
could increase landings and gross revenue for the Purse seine category.
Alternative three (selected), which eliminates the trip limit and
establishes the annual limit at 15 percent, would provide access to the
same total amount of landings as alternative two, but may also increase
net revenues by increasing flexibility in meeting the annual tolerance
limit. Alternative four could provide the greatest increase in access
by decreasing the minimum size to 73 inches (185 cm) for the Purse
seine category; however, it was not selected because of the associated
potential negative ecological impact of a relatively large increase in
overall BFT mortality within the large medium size class of BFT.
Alternatives five and six, related solely to the Harpoon category,
were designed to increase access to large medium BFT for the Harpoon
category and, similar to considerations with the Purse seine category,
balance the attainment of the quota allocation with concerns regarding
an increase in mortality and negative ecological impacts. Alternative
five would allow an increase in the daily retention limit for the
Harpoon category from the status quo of one large medium BFT per day to
two large medium BFT per day, and was selected since it is expected to
provide an acceptable balance between positive economic effects and a
modest increase in mortality of large medium BFT. Large medium BFT
mortality is not expected to increase significantly under this
alternative because of a harpooner's ability to visually determine the
size class of BFT prior to throwing a harpoon. Alternative six would
allow full access to the large medium size class by reducing the
minimum size limit for the Harpoon category to 73 inches (185 cm), and
would provide the most positive economic impacts. However, it was not
chosen because of the potential negative ecological impact of a
relatively large increase in mortality on large medium fish.
Finally, alternative seven, unlike all other alternatives, would
eliminate the tolerance for large medium size class and raise the
minimum size of BFT to 81 inches (206 cm) in both the Purse seine and
Harpoon categories. This alternative was considered due to the
potential positive ecological impacts that would enhance western
Atlantic BFT stock rebuilding, but would likely have negative economic
and social impacts and further impede full attainment of quota and
optimum yield. By narrowing the universe of fish available for harvest
to just the giant size class, it would be more difficult for these
categories to harvest the allocated quotas, thus the original objective
for this action would be contradicted.
This final rule does not duplicate, overlap, or conflict with any
other Federal rules.
This rule does not contain any new information collection,
reporting, recordkeeping or other compliance requirements. Logbook and
observer data collection schemes were proposed and made final in the
HMS Fishery Management Plan issued in 1999 and the Office of Management
and Budget approved the information collections as part of that
rulemaking process. Both the Purse Seine and Harpoon fisheries for BFT
were included in the approved information collection requests for these
programs. NMFS has faced resource constraints in implementing the
approved information collections and has tried to reduce costs and
avoid duplication by examining all possible avenues of accessing data
on catch, effort and discards in these fisheries. In this final rule,
NMFS balanced requirements to reduce dead discards against the
requirements to limit mortality on pre-spawning fish and provide a
reasonable opportunity for U.S. fishermen to harvest the quotas
allocated to each category under the international rebuilding program
for BFT and the HMS FMP allocation sector scheme. NMFS addressed this
issue by adjusting the tolerance limits for
[[Page 74511]]
landing large medium BFT for both the Harpoon and Purse Seine
categories. In developing this rule, it has become apparent that
additional information on the size distribution of fish encountered/
caught (as opposed to fish landed) is needed, and NMFS plans on
obtaining this information through the previously approved logbook and
observer programs.
NMFS prepared an EA for this final rule, and the AA has concluded
that there would be no significant impact on the human environment if
this final rule were implemented. The EA presents analyses of the
anticipated impacts of these regulations and the alternatives
considered. A copy of the EA and other analytical documents prepared
for this final rule, are available from NMFS (see ADDRESSES).
This rule has been determined to be not significant for purposes of
Executive Order 12866.
On September 7, 2000, NMFS reinitiated formal consultation for all
HMS commercial fisheries under section 7 of the Endangered Species Act
(ESA). A Biological Opinion (BiOp) issued June 14, 2001, concluded that
continued operation of the Atlantic pelagic longline fishery is likely
to jeopardize the continued existence of endangered and threatened sea
turtle species under NMFS jurisdiction. NMFS is currently implementing
the reasonable and prudent alternative required by the BiOp. This final
rule would not have any additional impact on sea turtles as these
actions do not affect the use of pelagic longline gear, would not
likely increase or decrease pelagic longline effort, nor are they
expected to shift effort into other fishing areas. No irreversible or
irretrievable commitments of resources are expected from this final
action that would have the effect of foreclosing the implementation of
the requirements of the BiOp.
NMFS has determined that the final regulations would be implemented
in a manner consistent to the maximum extent practicable with the
enforceable policies of those Atlantic, Gulf of Mexico, and Caribbean
coastal states that have approved coastal zone management programs. On
November 10, 2003, the proposed regulations were submitted to the
responsible state agencies for their review under Section 307 of the
Coastal Zone Management Act. As of November 28, 2003, NMFS has received
3 responses, all concurring with NMFS' consistency determination.
Because no responses were received from the other states, their
concurrence is presumed.
The area in which this final action is planned has been identified
as an Essential Fish Habitat (EFH) for species managed by the New
England Fishery Management Council, the Mid-Atlantic Fishery Management
Council, the South Atlantic Fishery Management Council, the Gulf of
Mexico Fishery Management Council, the Caribbean Fishery Management
Council, and the HMS Management Division of the Office of Sustainable
Fisheries at NMFS. Based on the 1999 Fishery Management Plan for
Atlantic Tunas, Swordfish, and Sharks, which analyzed the impacts of
purse seine, harpoon, and rod and reel gear on EFH, this action is not
anticipated to have any adverse impacts to EFH.
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Fishing vessels, Foreign relations,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Statistics, Treaties.
Dated:December 19, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 50 CFR part 635 is amended as
follows:
PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES
0
1. The authority citation for part 635 continues to read as follows:
Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.
0
2. In Sec. 635.23, paragraphs (d) and (e)(1) are revised to read as
follows:
Sec. 635.23 Retention limits for BFT.
* * * * *
(d) Harpoon category. Persons aboard a vessel permitted in the
Atlantic Tunas Harpoon category may retain, possess, or land an
unlimited number of giant BFT per day. An incidental catch of only two
large medium BFT per vessel per day may be retained, possessed, or
landed.
(e) * * *
(1) May retain, possess, land, or sell large medium BFT in amounts
not exceeding 15 percent, by weight, of the total amount of giant BFT
landed during that fishing year.
* * * * *
0
3. In Sec. 635.27, paragraphs (a)(1)(i)(C), (a)(4)(i), and (a)(5) are
revised to read as follows:
Sec. 635.27 Quotas.
(a) * * *
(1) * * *
(i) * * *
(C) October 1 through January 31 - 10 percent.
* * * * *
(4) * * *
(i) The total amount of large medium and giant BFT that may be
caught, retained, possessed, or landed by vessels for which Purse Seine
category Atlantic Tunas permits have been issued is 18.6 percent of the
overall U.S. BFT landings quota. The directed purse seine fishery for
BFT commences on July 15 of each year unless NMFS takes action to delay
the season start date. Based on cumulative and projected landings in
other commercial fishing categories, and the potential for gear
conflicts on the fishing grounds or market impacts due to oversupply,
NMFS may delay the BFT purse seine season start date from July 15 to no
later than August 15 by filing an adjustment with the Office of the
Federal Register for publication. In no case shall such adjustment be
filed less than 14 calendar days prior to July 15.
* * * * *
(5) Harpoon category quota. The total amount of large medium and
giant BFT that may be caught, retained, possessed, landed, or sold by
vessels for which Harpoon category Atlantic Tunas permits have been
issued is 3.9 percent of the overall U.S. BFT quota. The Harpoon
category fishery closes on November 15 each year.
* * * * *
0
4. In Sec. 635.28 paragraph (a)(2) is revised to read as follows:
Sec. 635.28 Closures.
(a) * * *
(2) From the commencement date of the directed BFT purse seine
fishery, as provided under Sec. 635.27(a)(4)(i), through December 31,
the owner or operator of a vessel that has been allocated a portion of
the Purse Seine category quota under Sec. 635.27(a)(4) may fish for
BFT. Such vessel may be used to fish for yellowfin, bigeye, albacore,
or skipjack tuna at any time, however, landings of BFT taken incidental
to fisheries targeting other Atlantic tunas or in any fishery in which
BFT might be caught will be deducted from the individual vessel's quota
for the following BFT fishing season. Upon reaching its individual
vessel allocation of BFT, the vessel may not participate in a directed
purse seine fishery for Atlantic tunas or in any fishery in which BFT
might be caught for the remainder of the fishing year.
* * * * *
0
5. In Sec. 635.71 paragraphs (b)(10) and (b)(17) are revised to read
as follows:
[[Page 74512]]
Sec. 635.71 Prohibitions.
* * * * *
(b) * * *
(10) Fish for or catch any Atlantic tunas in a directed fishery
with purse seine nets if there is no remaining BFT allocation made
under Sec. 635.27 (a)(4).
* * * * *
(17) As a vessel with a Purse Seine category Atlantic tunas permit,
catch, possess, retain, or land BFT in excess of its allocation of the
Purse Seine category quota, or fish for BFT under that allocation prior
to the commencement date of the directed BFT purse seine fishery, as
specified in Sec. 635.27(a)(4).
* * * * *
[FR Doc. 03-31758 Filed 12-23-03; 8:45 am]
BILLING CODE 3510-22-S