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International Fisheries Regulations; Pacific Tuna Fisheries
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: September 27, 2001 (Volume 66, Number 188)]
[Rules and Regulations]
[Page 49317-49321]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27se01-27]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 010111010-1223-02; I.D. 113000B]
RIN 0648-AO42
International Fisheries Regulations; Pacific Tuna Fisheries
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 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 562-980-4047.
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 deg. N. lat., 150 deg. W. long., and 40 deg. 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
[[Page 49318]]
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
[[Page 49319]]
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
Secs. 300.28 and 300.29 of this chapter should be defined for
clarification.
Response: The language in Secs. 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
[[Page 49320]]
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 Sec. 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:
Sec. 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 Sec. 300.28, paragraphs (h) through (l) are added to read as
follows:
Sec. 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 Sec. 300.29(e); or
(l) Fail to report information when requested by the Regional
Administrator under Sec. 300.21.
4. In Sec. 300.29, a new paragraph (e) is added to read as
follows:
Sec. 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
[[Page 49321]]
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 Sec. 223.206(d)(1)(i)(B) of this title shall
be used before release of the turtle.
[FR Doc. 01-24223 Filed 9-26-01; 8:45 am]
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