[Federal Register Volume 66, Number 188 (Thursday, September 27, 2001)]
[Rules and Regulations]
[Pages 49317-49321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24223]


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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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