[Federal Register Volume 69, Number 218 (Friday, November 12, 2004)]
[Rules and Regulations]
[Pages 65382-65385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25302]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 040617186-4302-02; I.D. 051704D]
RIN 0648-AS39


International Fisheries; Pacific Tuna Fisheries; Restrictions for 
2004 Purse Seine and Longline Fisheries in the Eastern Tropical Pacific 
Ocean

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Department of Commerce.

ACTION: Final rule.

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SUMMARY: NMFS publishes this final rule to implement the 2004 
management measures to prevent overfishing of the eastern tropical 
Pacific Ocean (ETP) tuna stocks, consistent with recommendations by the 
Inter-American Tropical Tuna Commission (IATTC) that have been approved 
by the Department

[[Page 65383]]

of State (DOS) under the Tuna Conventions Act. The purse seine fishery 
for tuna in the Convention Area will be closed from December 13, 2004 
through December 31, 2004. This final rule will also close the U.S. 
longline fishery in the Convention Area for the remainder of 2004 if 
the bigeye tuna catch in the Convention Area reaches the reported level 
of catch made in 2001. These actions are taken to limit fishing 
mortality on tuna stocks caused by purse seine fishing and longline 
fishing in the Convention Area and contribute to the long-term 
conservation of tuna stocks at levels that support healthy fisheries.

DATES: Effective December 13, 2004 through December 31, 2004.

ADDRESSES: Copies of the regulatory impact review/regulatory 
flexibility analysis may be obtained from the Southwest Regional 
Administrator, Southwest Region, NMFS, 501 W. Ocean Blvd., Suite 4200, 
Long Beach, CA 90902-4213.
    This Federal Register document is also accessible via the Internet 
at the Office of the Federal Register's website at http://www.gpoaccess.gov/.

FOR FURTHER INFORMATION CONTACT: J. Allison Routt, Sustainable 
Fisheries Division, Southwest Region, NMFS, (562) 980-4030.

SUPPLEMENTARY INFORMATION: 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 (Convention). 
The IATTC was established to provide an international arrangement to 
ensure the effective international conservation and management of 
highly migratory species of fish in the Convention Area. The Convention 
Area is defined to include the waters of the ETP bounded by the coast 
of the Americas, the 40[deg] N. and 40[deg] S. parallels, and the 
150[deg] W. meridian. The IATTC has maintained a scientific research 
and fishery monitoring program for many years and annually assesses the 
status of stocks of tuna and the fisheries to determine appropriate 
harvest limits or other measures to prevent overexploitation of tuna 
stocks and promote viable fisheries. Under the Tuna Conventions Act, 16 
U.S.C. 951-962, NMFS must publish regulations to carry out IATTC 
recommendations and resolutions that have been approved by DOS. A 
proposed rule and request for comments was published in the Federal 
Register (69 FR 122) on June 25, 2004. The Southwest Regional 
Administrator also is required by regulations at 50 CFR 300.29(b)(3) to 
issue a direct notice to the owners or agents of U.S. vessels that 
operate in the ETP of actions recommended by the IATTC and approved by 
the DOS. Notices to the fleet were issued in October 2003, May 2004, 
and again in October 2004 regarding these actions.
    At an extraordinary meeting in October 2003, the IATTC adopted a 
resolution addressing yellowfin, bigeye, and skipjack tuna conservation 
for 2003 and 2004. The resolution called upon the Parties to the 
Convention and cooperating non-Parties to prohibit tuna purse seine 
fishing in a portion of the Convention Area for the month of December 
2003 and to close the entire Convention Area for a 6-week period 
beginning August 1, 2004. The 2003 closure was implemented by separate 
action last year. At the IATTC June 2004 meeting, the October 2003 
resolution was revised. The June 2004 resolution (``revised 
resolution'') is a multi-annual program on the conservation of tuna in 
the eastern Pacific Ocean for 2004, 2005, and 2006.
    The revised resolution offers Parties a choice for closing the 
purse seine fishery in the Convention Area: either a 6-week closure 
beginning August 1, 2004, or a 6-week closure beginning November 20, 
2004. This closure will target fishing activity that results in high 
catches of juvenile tuna. Therefore, the closure should result in 
improved yields from the stocks later in the year or in subsequent 
years.
    The revised resolution also calls upon each Party and cooperating 
non-Party to take measures necessary to ensure that each nation's 
longline catch of bigeye tuna in the Convention Area during 2004 will 
not exceed the total longline catch by the nation in the Convention 
Area in 2001. The U.S. catch level for 2001 is estimated to have been 
150 metric tons in the Convention Area. This is intended to prevent 
overfishing of the stock, which has declined in recent years while 
longline fishing effort has greatly expanded.
    The IATTC action at the extraordinary meeting in October 2003 came 
after considering a variety of measures, including the use of quotas 
and partial fishery closures as implemented in 1999 through 2002 and 
the full month purse seine closure used in 2003. The revised resolution 
of June 2004 incorporated flexibility for nations to administer the 
purse seine closure in accordance with national legislation and 
national sovereignty. The selected measures should provide protection 
against overfishing of the stocks in a manner that is fair, equitable, 
and readily enforceable. The DOS has approved the IATTC 
recommendations.
    The conservation and management measures are based on 2004 
assessments of the condition of the tuna stocks in the ETP and historic 
catch and effort data for different portions of the ETP, as well as 
records relating to implementation of quotas and closures in prior 
years. The measures are limited to the Convention Area and are believed 
by the IATTC scientific staff to be sufficient to reduce the risk of 
overfishing of tuna stocks, especially when considered in combination 
with the measures implemented in December 2003. The IATTC met in June 
2004 and reviewed new tuna stock assessments and fishery information 
and considered the new assessment and information. In evaluating 
possible management measures for 2004 and future years, the IATTC 
selected a multi-annual time/area approach to conserve and manage the 
tuna stocks in the Convention Area.
    The Regional Administrator, Southwest Region, sent notices October 
2003, May 2004, and October 2004 to owners and agents of U.S. fishing 
vessels of the actions that were recommended by the IATTC and have been 
approved by the DOS.
    This final rule implements the late closure to purse seining in the 
Convention Area from December 13, 2004 through December 31, 2004. This 
approach is intended to limit fishing mortality and prevent overfishing 
in an effort to conserve tuna in a fair, equitable, and readily 
enforceable manner. This final rule also provides that the U.S. 
longline fishery for bigeye tuna in the Convention Area will close for 
the remainder of the calendar year 2004 if the catch reaches 150 metric 
tons, the catch level of 2001. This means that no bigeye tuna may be 
taken and retained or possessed after the closure. NMFS will provide 
notice of closure of the longline fishery in the Federal Register. 
These actions ensure that U.S. vessels fish in accordance with the 
conservation and management measures that the IATTC recommended in June 
2004. A separate rulemaking will be implemented in 2005 for 
conservation and management measures in that year. This provides 
greater flexibility for rulemaking in the event that the IATTC revises 
its recommendation for that year.

Comments and Responses

    During the comment period for the proposed rule, NMFS received 
comments from tuna industry organizations, environmental organizations, 
members of the public, and the Western Pacific Fishery

[[Page 65384]]

Management Council. Key issues and concerns are summarized below and 
responded to as follows:

Timing of the Closure

    Comment 1: Vessel owners do not support the closure period set 
forth in the proposed rule. They prefer that the closure take place 
during the period November 20, 2004, to December 31, 2004. The vessel 
owners have two specific reasons for preferring the year-end closure. 
First, the weather conditions on the high seas and in the Convention 
Area at year-end are normally more problematic than during the August-
September period. Fishing conditions are affected by weather and the 
vessel owners would prefer that the closure not take place during the 
period when the weather is least likely to adversely affect fishing. 
Second, there is currently a short supply of fish, and fish prices have 
finally begun to return to levels that support economically profitable 
fishing. A mid-year closure could prevent U.S. vessels from 
capitalizing on this opportunity. Finally, a later closure allows 
better opportunity for planning operations and scheduling repairs 
maintenance during the closure. For these reasons U.S. vessel owners 
would prefer to delay the closure until later in the year.
    Response: NMFS has decided to implement the late closure supported 
by industry for the reasons presented.
    Comment 2: One commenter expressed a preference for the August 1 
through September 11, 2004, closure.
    Response: NMFS considered this closure. However, the overwhelming 
majority of commenters favored of the 6-week closure beginning November 
20, 2004. For the reasons stated in Comment 1, NMFS has chosen to 
implement the later closure. The impacts discussed in the RIR are the 
same under both closure options.
    2001 U.S. Longline Catch
    Comment 3: It is probably wrong to assume that the catch of bigeye 
in the ETP by U.S. flagged longline vessels is no more than 100 metric 
tons.
    Response: NMFS agrees and has concluded that the catch in 2001 was 
150 metric tons. In response to comments, NMFS scientists reevaluated 
the U.S. longline catch of bigeye tuna for 2001. NMFS scientists 
estimated the longline bigeye tuna catch east of 150[deg] W. meridian 
by multiplying the numbers of fish reported as retained in log books 
from the Hawaii and California based longline fleets times the mean 
weight of bigeye tuna from the Hawaii-based longline fishery. Three 
data sets were used to estimate bigeye catches east of 150[deg] W. 
meridian. These were the Hawaii-based longline logbooks data (1999-
2003), the Honolulu market sample data (1999), and the State of Hawaii 
Fish Dealer Data (2000-2003). In addition, U.S. flagged longline 
vessels operate out of California and catch bigeye tuna east of 
150[deg] W. These vessels are required to fill in either the NMFS 
Western Pacific Daily Longline Fishing Log or High Seas Pelagic 
Longline Logs and submit them to the NMFS Southwest Regional Office in 
Long Beach, California. These logbook data provide fishing location and 
catch by species. The estimated U.S. longline bigeye tuna catch was 150 
metric tons in 2001. The relatively low yields in 2001 and 2002 were 
probably caused by unusual fishing patterns that reflected regulatory 
initiatives to the U.S. longline fleet targeting swordfish in the ETP.
    Comment 4: Why were the 2001 levels used and not earlier years that 
may be more indicative of U.S. historical catches?
    Response: The IATTC Secretariat recommended and the IATTC chose the 
year 2001 for the bigeye longline benchmark because this was the most 
recent year that nations party to or cooperating with the IATTC were 
able to supply a complete annual data set and because this represented 
the last year before a substantial increase in eastern Pacific longline 
fishing. Parties to the IATTC wanted to limit longline effort to this 
lower level.
    Bigeye Longline Quota
    Comment 5: A commenter asked who conducted the analysis on which 
the initial estimate of 100 metric tons of bigeye tuna was based and 
questioned if it was based on the best available data. Further, the 
commenter wanted to know what protocols govern the monitoring of U.S. 
longline bigeye catches in the IATTC area; and which NMFS office is 
taking the lead on this issue. The commenter requested NMFS communicate 
better on issues within the Convention Area that may affect fisheries 
by vessels based different regions.
    Response: The initial estimate of 2001 U.S. longline catch of 
bigeye tuna in the Convention Area was derived by the NMFS Southwest 
Region using landings and log book data from both Hawaii and 
California. While the preliminary estimate of the U.S. catch in 2001 
was 100 metric tons, after receiving public comments, NMFS reviewed the 
initial estimate and made adjustments based on a sound statistical 
basis. NMFS will implement a protocol for monitoring U.S. longline 
bigeye catches in the Convention Area so that the fishery can be closed 
if the U.S. catch limit for 2004 is reached before the end of the year. 
In addition, NMFS will also give direct notice of any longline closure 
to fishing vessel owners and operators. The Southwest Region has the 
lead for collaborating with the DOS and constituents in implementing 
conservation recommendations of the IATTC. The Southwest Region 
recognizes that longline vessels based in Hawaii may fish in the 
Convention Area and thus could be affected by measures recommended by 
the IATTC and approved by DOS. The Southwest Region will increase its 
efforts to communicate with all stakeholders including the relevant 
fishery management councils prior to IATTC meetings to ensure that the 
interests of all U.S. fisheries are considered in development of U.S. 
positions at IATTC. The Southwest Region also will inform the councils 
of IATTC actions as soon after meetings as practicable. NMFS fully 
recognizes that the regional councils have roles as principals in 
highly migratory species fisheries management under the Magnuson-
Stevens Fishery Conservation and Management Act and is working to 
ensure that measures under international conventions are compatible and 
coordinated to the extent necessary.

Changes From the Proposed Rule

    The final rule differs from the proposed rule by implementing the 
late closure alternative provided by the revised resolution. Based on 
comments received on the proposed rule, the U.S. has chosen the late 
closure. Also, comments received during the comment period requested 
that NMFS reevaluate the U.S. longline catch of bigeye tuna in the 
Convention Area for 2001. NMFS agreed and concluded that the catch in 
2001 was 150 metric tons.

Corrections and Technical Changes

    One commenter noted that the cite to 50 CFR 200.29 in the 
Classification section was in error and should be corrected to read 50 
CFR 300.29. This has been corrected. The reference described at 50 CFR 
300.29(b)(3) as requiring the Southwest Regional Administrator to give 
direct notice of IATTC actions to owners and operators of ETP purse 
seine vessels is not correct. Actually, Sec.  300.29(b)(3) requires the 
Southwest Regional Administrator to give operators and owners of any 
type of vessel direct notice of closure actions that affect those 
vessels. The distinction is relevant to this final rule because Sec.  
300.29(b)(3) applies to the longline fleet as well as the purse seine 
fleet. This has been corrected.

[[Page 65385]]

Classification

    This action is implemented under the regulations for the Pacific 
Tuna Fisheries found at 50 CFR 300.29.
    On December 8, 1999, NMFS prepared a biological opinion (BO) 
assessing the impacts of the fisheries as they would operate under the 
interim final regulations (65 FR 47, January 3, 2000) implementing the 
International Dolphin Conservation Program Act (IDCPA). For the final 
rule (69 FR 176, September 13, 2004) to implement the IDCPA, NMFS 
amended the incidental take statement included in the December 8, 1999, 
BO. NMFS concluded that the fishing activities conducted under those 
regulations are not likely to jeopardize the continued existence of any 
endangered or threatened species under the jurisdiction of NMFS or 
result in the destruction or adverse modification of critical habitat. 
This final rule will not result in any changes in the fisheries such 
that there would be impacts beyond those considered in that BO. The 
IATTC has also taken action to reduce sea turtle injury and mortality 
from interactions in the purse seine fishery so impacts of the 
fisheries should be lower than in the past. Because this closure does 
not alter the scope of the fishery management regime analyzed in the 
IDCPA rule, or the scope of the impacts considered in that 
consultation, NMFS is relying on that analysis to conclude that this 
final rule will not likely adversely effect any endangered or 
threatened species under the jurisdiction of NMFS or result in the 
destruction or adverse modification of critical habitat. Therefore, 
NMFS has determined that additional consultation is not required for 
this action.
    The U.S. ETP tuna purse seine fisheries occasionally interact with 
a variety of species of dolphin, and dolphin takes are authorized and 
managed under the IDCPA. These conservation management measures in this 
final rule do not affect the administration of that program, which is 
consistent with section 303(a)(2) of the Marine Mammal Protection Act.
    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that the proposed rule for this action would not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for the certification was published in the proposed 
rule. No comments were received regarding the economic impacts of this 
action. However, a number of commenters suggested changing the date of 
the closure to, among other things, ease the economic impacts of the 
rule. In response, NMFS has done what the commenters asked. As a 
result, a regulatory flexibility analysis was not prepared.

    Authority: 16 U.S.C. 951-962.

    Dated: November 9, 2004.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 04-25302 Filed 11-10-04; 8:45 am]
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