[Federal Register Volume 73, Number 129 (Thursday, July 3, 2008)]
[Rules and Regulations]
[Pages 38144-38154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15195]
[[Page 38144]]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No. 080130104-8560-02]
RIN 0648-AW46
Atlantic Highly Migratory Species; Renewal of Atlantic Tunas
Longline Limited Access Permits; Atlantic Shark Dealer Workshop
Attendance Requirements
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the regulations governing the renewal
of Atlantic tunas longline limited access permits (LAPs), and amends
the workshop attendance requirements for businesses issued Atlantic
shark dealer permits. Specifically, these regulatory changes allow for
the renewal of Atlantic tunas longline LAPs that have been expired for
more than one year by the most recent permit holder of record, provided
that the applicant has been issued a swordfish LAP (other than a
handgear LAP) and a shark LAP, and all other requirements for permit
renewal are met. Also, this rule amends the Atlantic Shark
Identification Workshop requirements by: specifying that a workshop
certificate be submitted upon permit renewal, and later possessed and
available for inspection, for each place of business listed on the
dealer permit which first receives Atlantic sharks by way of purchase,
barter, or trade (rather than for each location listed on their dealer
permit); and requiring that extensions of a dealer's business, such as
trucks or other conveyances, must possess a copy of a valid dealer or
proxy certificate issued to a place of business listed on the dealer
permit.
DATES: This final rule is effective August 4, 2008.
ADDRESSES: Copies of the final Regulatory Impact Review/Final
Regulatory Flexibility Analysis (Final RIR/FRFA); and, related
documents including a 2007 Final Environmental Assessment (EA) and
final rule (72 FR 31688, June 7, 2007) implementing revised vessel
upgrading regulations for vessels issued Atlantic tunas longline,
swordfish, and shark LAPs; and the 2006 Final Consolidated Atlantic
Highly Migratory Species Fishery Management Plan (Consolidated HMS FMP)
and its final rule (71 FR 58058, October 2, 2006) implementing Atlantic
Shark Identification Workshops are available from the HMS Management
Division website at: http://www.nmfs.noaa.gov/sfa/hms or by contacting
Richard A. Pearson (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Richard A. Pearson, by phone: 727-824-
5399; by fax: 727-824-5398.
SUPPLEMENTARY INFORMATION:
Background
Atlantic tuna and swordfish fisheries are managed under the
authority of the Magnuson-Stevens Fishery Conservation and Management
Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act
(ATCA). Atlantic sharks are managed under the authority of the
Magnuson-Stevens Act. The Consolidated HMS FMP is implemented by
regulations at 50 CFR part 635.
Renewal of Atlantic Tunas Longline LAPs
LAPs were first implemented in HMS fisheries in 1999 primarily to
provide a limit on harvesting capacity in Atlantic swordfish and shark
fisheries to reduce the likelihood of exceeding the available quota for
these species, and to facilitate other fishery management measures
implemented at the time. The Atlantic tunas longline LAP was also
established at that time because of the potential for encountering
swordfish and sharks when fishing with pelagic longline (PLL) gear for
Atlantic tunas, and vice-versa. In recognition of the interrelationship
between these longline fisheries, the Atlantic tunas longline LAP
complemented the management measures that had been developed for
Atlantic swordfish and shark.
Since 1999, vessel owners have been required to simultaneously
possess three permits (Atlantic tunas longline; swordfish directed or
incidental; and, shark directed or incidental) in order to retain
Atlantic tunas caught with longline gear, or to retain swordfish caught
with any gear other than handgear. An Atlantic tunas longline LAP is
only considered valid, or useable, if the vessel has also been issued
both a shark LAP and a swordfish LAP (other than handgear). Similarly,
a swordfish LAP (other than handgear) is only considered valid, or
useable, when a vessel has also been issued both a shark LAP and an
Atlantic tunas longline LAP. The current regulations for each of these
permits specify that only persons holding non-expired LAPs in the
preceding year are eligible to renew those permits.
In 2007, NMFS identified approximately 40 vessel owners that had
allowed their Atlantic tunas longline LAPs to lapse for more than one
year, thus making them ineligible to renew that permit. In most cases,
the vessel owners had maintained their accompanying swordfish and shark
LAPs through timely renewal. However, because they are ineligible to
renew their Atlantic tunas longline LAP, they are not currently allowed
to fish for tunas with PLL gear or to retain swordfish, even though
they have been issued a swordfish permit. Currently, the number of
available Atlantic tunas longline LAPs is insufficient to match the
number of available swordfish and shark incidental or directed permits,
thus rendering many swordfish permits invalid, or unusable, because all
three permits are required to retain swordfish (with any gear other
than handgear).
The scope of this problem was not fully recognized until September
2007, when NMFS was determining which vessels qualified for revised
vessel upgrading regulations (72 FR 31688, June 7, 2007), depending
upon whether the vessel was concurrently issued a directed or
incidental swordfish LAP, a directed or incidental shark LAP, and an
Atlantic tunas longline LAP. At that time, NMFS learned that
approximately 40 vessel owners had inadvertently failed to renew their
Atlantic tunas longline LAP because of operational constraints
associated with the Atlantic tunas longline permit issuance system, or
because of significant differences in the renewal procedures for
swordfish/shark LAPs and the Atlantic tunas longline LAP.
There was confusion within the fishing industry regarding the
renewal, issuance, eligibility, and applicability of the one-year
renewal requirement for the Atlantic tunas longline LAP because the
operational procedures for renewing an Atlantic tunas longline LAP were
substantially different than for swordfish and shark LAPs. The Atlantic
tunas longline permit renewal system was originally developed as a
self-service, web-based electronic system that was administered by a
non-NMFS contractor for the primary purpose of issuing open access
permits. In contrast, swordfish and shark LAPs are issued and renewed
by submitting paper applications to NMFS' Southeast Region permits
office. A significant difference between the two permit systems is that
the Atlantic tunas longline LAP cannot be held in ``no vessel'' status,
meaning that the permit cannot be renewed without specifying a vessel.
An Atlantic tunas longline permit holder must either move the permit to
a replacement vessel
[[Page 38145]]
or forfeit the permit. Many vessel owners indicated that they were not
aware of these options, or misunderstood them, and let their Atlantic
tunas longline LAP expire because they no longer owned a vessel but
thought they remained eligible to renew the permit.
Another difference between the Atlantic tunas longline LAP and
swordfish and shark LAPs is that the Atlantic tunas longline LAP does
not have a unique permit number associated with it that stays unchanged
if the permit is transferred to another vessel, whereas swordfish and
shark permits do. Therefore, ``ownership'' of the Atlantic tunas
longline LAP is more difficult to track over time because the permit
number changes with each transfer of the permit to another vessel.
This final rule amends the HMS regulations to remove the one-year
renewal timeframe for Atlantic tunas longline LAPs. This modification
will better reflect the operational capabilities of the Atlantic tunas
longline permit renewal system and reduce the potential for future
confusion. It will allow NMFS, upon receipt of a complete permit
application, to reissue an Atlantic tunas longline LAP to the most
recent permit holder of record even if the permit had not been renewed
within one year of expiration, provided that the applicant has already
been issued a swordfish LAP (other than a handgear LAP), a shark LAP,
and all other current requirements for permit renewal are met. This
final rule does not amend the permit renewal regulations for swordfish
and shark LAPs which will continue to specify that only persons holding
non-expired swordfish and shark LAPs in the preceding year are eligible
to renew those permits. Also, the requirement to possess all three
valid LAPs (swordfish incidental or directed; shark incidental or
directed; and Atlantic tunas longline) in order to fish for tunas with
PLL gear and to retain commercially-caught swordfish (other than with a
swordfish handgear LAP) remains unchanged. Thus, the final management
measures will not increase the number of Atlantic tunas longline LAPs
issued to an amount higher than the number of swordfish LAPs
(incidental or directed) that are currently issued or are eligible to
be renewed.
This action will help to ensure that an adequate number of
complementary Atlantic tunas longline LAPs are available for swordfish
and shark commercial LAP holders to fish legally for Atlantic swordfish
and tunas with PLL gear. Consistent with the Magnuson-Stevens Act and
ATCA, it will also help provide a reasonable opportunity for U.S.
vessels to more fully harvest the domestic swordfish quota, which is
derived from the recommendations of the International Commission for
the Conservation of Atlantic Tunas (ICCAT). This final rule reinforces
recent efforts by NMFS to ``revitalize'' the PLL fishery, recognizing
that the North Atlantic stock is almost fully rebuilt (B = 0.99Bmsy)
but domestic landings have been well below the U.S. swordfish quota in
recent years. In doing so, this action could help the United States
retain its historic swordfish quota allocation at ICCAT.
Atlantic Shark Dealer Workshop Requirements
To improve the identification and reporting of shark species by
dealers for accurate quota monitoring and stock assessments, existing
HMS regulations at 50 CFR 635.8 require that Atlantic shark dealers
attend an Atlantic Shark Identification Workshop and submit a copy of
the workshop certificate in order to renew their permit. If a dealer
attends and successfully completes a workshop, the dealer will receive
a workshop certificate for each location listed on their Atlantic shark
dealer permit. If the dealer chooses to send a proxy to a workshop, the
existing regulations require them to send a proxy for each location
listed on their Atlantic shark dealer permit. Under these regulations,
Atlantic shark dealers may not renew their Atlantic shark dealer permit
without submitting either a dealer or proxy certificate for each
location listed on their Atlantic shark dealer permit. Additionally,
Atlantic shark dealers may not act as the ``first-receivers'' of shark
products at any location unless a valid workshop certificate is on the
premises of each place of business listed on their shark dealer permit.
As described in the final rule for Amendment 2 for the Management of
Atlantic Shark Fisheries (73 FR 35778, June 24, 2008), ``first-
receiver'' means any entity, person, or company that takes, for
commercial purposes (other than solely for transport), immediate
possession of the fish, or any part of the fish, as the fish are
offloaded from a fishing vessel of the United States, as defined under
Sec. 600.10 of this chapter, whose owner or operator has been issued,
or should be have been issued, a valid permit under this part.
Since the implementation of these requirements, NMFS has learned
that some shark dealers may not be acting as the first receiver of
shark products at all of the locations listed on their permit. For
example, a dealer may purchase red snapper at one location, and shark
at another location. However, because the shark dealer's permit lists
both locations as owned by the dealer, including the snapper-only site,
the existing regulations require them to submit an Atlantic Shark
Identification Workshop certificate (proxy or dealer) upon permit
renewal for both the shark site and the snapper site, and to later
possess the certificate at both sites. This is an impractical and
unnecessary result. When NMFS recognized that the existing regulations
required this practice, the agency decided to correct and amend the
process.
For technical and programmatic reasons, it is not feasible for NMFS
to modify the permit database to specify only locations on the shark
dealer permit that actually receive shark products if the dealer also
has other locations where other species are received. To remedy this
situation, the final rule amends the HMS regulations by specifying
that, when applying for or renewing an Atlantic shark dealer permit, an
applicant must submit an Atlantic Shark Identification Workshop
certificate (dealer or proxy) for each place of business listed on the
shark dealer permit which first receives Atlantic sharks by way of
purchase, barter, or trade, rather than for each location listed on the
shark dealer permit. This will eliminate the need for a shark dealer to
send a proxy to a workshop to obtain a certificate for a location that
does not actually receive Atlantic shark products. Similarly, the
requirement to possess, and make available for inspection, an Atlantic
Shark Identification Workshop certificate will only be required at
locations listed on the dealer permit where sharks are first received
rather than from each location listed on the shark dealer permit.
Finally, this final rule requires that extensions of a dealer's
business, such as trucks or other conveyances, must possess a copy of a
valid dealer or proxy certificate issued to a place of business covered
by the dealer permit. This will immediately identify trucks or other
conveyances as extensions of a NMFS-certified place of business which
is eligible to receive Atlantic sharks. With these minor amendments,
the objective of improved identification and reporting of shark species
is expected to continue, while impacts on dealers may be lessened.
Clarification of Buoy Gear Usage
In this final rule, NMFS also makes a technical clarification in
the ``gear operation and deployment restrictions'' section of the HMS
regulations regarding which permit holders are authorized to utilize
buoy gear. This
[[Page 38146]]
technical clarification does not substantively change the buoy gear
usage requirements. It clarifies that only vessels issued a valid
directed or handgear swordfish LAP may possess and utilize buoy gear.
This clarification addresses questions and comments received from
constituents, and ensures consistency with existing HMS regulations at
Sec. 635.71(e)(10) which already specify that only these permit
holders may possess or utilize buoy gear.
A description of the alternatives for this action was provided in
the Classification section of the proposed rule (73 FR 19795, April 11,
2008) and is not repeated here. Additional information can be found in
the Final RIR/FRFA prepared for this rule and is available from NMFS
(see ADDRESSES).
The public comment period for the proposed rule (73 FR 19795, April
11, 2008) was open from April 11, 2008, to May 12, 2008. During that
time, NMFS conducted three public hearings in Gloucester, MA (May 1,
2008), St. Petersburg, FL (May 6, 2008), and Silver Spring, MD (May 7,
2008). In addition, the HMS Advisory Panel (HMS AP) received a
presentation and was provided with an opportunity to comment on the
proposed rule on April 16, 2008. The Agency received six written or
electronic comment letters, and several verbal comments from the HMS AP
and at public hearings. A summary of the major comments (26 total)
received, along with NMFS' response, is provided below.
Response to Comments
These comments and responses are divided into two major categories:
those that discuss the renewal of Atlantic tunas longline LAPs (23
comments) and those that discuss Atlantic shark dealer workshop
requirements (3 comments).
Renewal of Atlantic Tunas Longline LAPs
Comment 1: All longlines should be banned. It is time for NMFS to
prohibit these forty mile longlines from being used in the ocean and
killing everything in their path. The proposed rule is far too lenient.
Response: The U.S. PLL fishery provides jobs and income for fishery
participants, and wholesome food products for consumers. NMFS
continually assesses the PLL fishery and, if necessary, implements
management measures to ensure that bycatch and bycatch mortality of
protected and nontarget species are minimized to the extent
practicable. In addition, based upon the best scientific information
available, the agency develops and implements management measures to
prevent overfishing and rebuild overfished stocks. Some of these
management measures include the mandatory use of circle hooks in the
PLL fishery, bait restrictions, gear requirements, mandatory training
at release and disentanglement workshops, mandatory release and
disentanglement gear, time/area closures, mandatory vessel monitoring
systems, logbook and reporting requirements, observer coverage, minimum
size limits, catch limits, annual quotas, target catch requirements,
limited access permits, and vessel upgrading restrictions. The
implementation of these measures has resulted in a well-managed
domestic fishery. This final rule is not expected to have significant
adverse environmental impacts because the resultant number of
authorized PLL vessels will not exceed the number of vessels that are
currently issued, or are eligible to renew, swordfish directed and
incidental permits. At most, 40 Atlantic tunas longline LAPs could be
reissued as a result of this rule, but all of these permits have been
issued before, since LAPs were first required in 1999.
Comment 2: The Atlantic tunas longline LAP was established eight or
nine years ago. Why is NMFS only finding out now that 40 former permit
holders did not renew their permits by the required deadline?
Response: The magnitude of this issue came to the forefront during
implementation of revised vessel upgrading regulations for vessels
which were concurrently issued, or eligible to renew, swordfish, shark
and Atlantic tunas longline LAPs in August 2007. Prior to that time,
NMFS recognized that some permit holders had failed to renew their
Atlantic tunas LAP within one year of expiration, but the agency was
not aware that many of these same permit holders had maintained their
swordfish and shark LAPs through timely renewal. NMFS found that some
permit holders had inadvertently let their Atlantic tunas longline LAP
expire because they misunderstood the differences in the permit renewal
process for swordfish/shark LAPs and Atlantic tunas longline LAPs (as
discussed in detail in the proposed rule (73 FR 19795, April 11,
2008)). NMFS also found that some swordfish and shark permit holders
were not able to renew their Atlantic tunas longline LAP because they
did not possess a vessel; the tuna permitting system cannot issue a
permit without vessel information. For these reasons, the agency is
amending the HMS regulations to be more reflective of the operational
capabilities of the Atlantic tunas longline permit issuance system and
to reduce confusion regarding the renewal of this permit.
Comment 3: If I have an incidental swordfish permit and a shark
permit, is NMFS going to issue me a tuna longline permit as a result of
this rule?
Response: Not necessarily. This final action only amends the
regulations regarding the renewal of expired Atlantic tunas longline
LAPs. Only the most recent permit holder of record will be eligible to
renew that permit even if it has been expired for more than one year.
The Atlantic tunas longline LAP remains a limited access permit. As
stated in 50 CFR 635.4(d)(4), the permit may only be obtained through
transfer from current owners. This means that the concurrent
possession, or issuance, of swordfish and shark directed or incidental
LAPs does not automatically entitle a person to an Atlantic tunas
longline LAP. It must still be obtained through permit transfer.
Comment 4: Will reissuing 40 Atlantic tunas longline LAPs create
the complementary balance of permits that NMFS is hoping to achieve, or
will the agency have to issue more permits? How many shark and
swordfish boats are looking for Atlantic tunas longline LAPs?
Response: There are approximately 40 vessels that have been issued,
or are eligible to renew, swordfish and shark permits that need an
Atlantic tunas longline LAP to complete the three-permit combination
that is necessary to retain swordfish (other than with handgear) or to
fish for tunas with PLL gear. As of August 6, 2007, there were
approximately 288 directed and incidental swordfish permits, 542
directed and incidental shark permits, and 268 Atlantic tunas longline
LAPs that were issued or were eligible for renewal. Of these, 245
vessels were concurrently issued, or were eligible to renew, all three
permits. The availability of the Atlantic tunas longline LAP has been a
limiting factor in the number of vessels that are eligible to retain
swordfish or fish for HMS with PLL gear. Renewing approximately 40
Atlantic tunas longline LAPs should help to complement the available
number of swordfish permits. Because most of the 40 vessels affected by
this final rule have already been issued swordfish and shark LAPs, the
number of authorized PLL vessels could potentially increase from
approximately 245 to 285. However, it is not known if every former
permit holder will apply to renew the Atlantic tunas longline LAP, so
the actual increase in the number of PLL vessels could be less.
[[Page 38147]]
Comment 5: How many inactive PLL vessels are there that have been
issued the three necessary permits?
Response: There are about 131 vessels out of 245 vessels authorized
to fish with PLL gear that did not report any landings in the HMS
logbook in 2006. These 131 vessels are considered to be currently
inactive in the HMS fishery.
Comment 6: I support the proposed rule and other actions to
increase U.S. swordfish landings. The U.S. swordfish quota is going to
be reduced at ICCAT. When the swordfish quota is reduced, it will
adversely affect both recreational and commercial fishermen. There are
people that cannot currently fish and contribute to catching the
domestic swordfish quota because they do not possess the three
necessary permits. There are many reasons why people did not renew
their permits. Some people were laid up due to illness or vessel
maintenance. There is no reason for these permits to be latent. They
should be reissued and put back into circulation so that shark and
swordfish permit holders can get back to landing product. The United
States needs to have more boats on the water fishing, and the boats
must have the proper permits to do that.
Response: This final rule could potentially increase the number of
vessels authorized to retain swordfish, and fish for tunas with PLL
gear, to a level approximately equal to the number of vessels issued a
swordfish LAP. However, it is not known if every former Atlantic tunas
longline permit holder affected by this rule will apply to renew the
permit, so the actual increase in permit numbers and fishing vessels
may be less than 40. This rule will remove an administrative barrier to
renewing the Atlantic tunas longline LAP, and provide an opportunity
for some current swordfish and shark permit holders to reenter the PLL
fishery. If they choose not to fish, these permit holders could renew
their Atlantic tunas longline LAP to ``complete'' their HMS permit
package and then transfer their permits to another vessel owner. In
either case, more HMS three-permit combinations could become available
for use in the PLL fishery as a result of this rule.
Comment 7: The proposed action will not increase domestic swordfish
landings enough to have any impact at ICCAT.
Response: This final action is not likely to immediately increase
domestic swordfish landings to a level where the United States will
meet or exceed its domestic swordfish quota. However, it will reduce an
administrative barrier to renewing the Atlantic tunas longline LAP, and
provide an opportunity for some current permit holders with swordfish
and shark LAPs to reenter the PLL fishery. It will help to reduce the
rate of attrition in the HMS PLL fishery by increasing the overall
number of available ``complete'' PLL permit packages. If all 40 vessel
owners affected by this rule immediately obtain their Atlantic tunas
longline LAP and begin fishing for swordfish, landings could
significantly increase.
Comment 8: Why doesn't the Atlantic tunas longline LAP have a ``no
vessel'' status?
Response: The Atlantic tunas longline LAP does not have a ``no
vessel'' status because the permit issuance system was originally
designed for open access permits, which do not need ``no vessel''
status, such as the General category tuna permit and the HMS Angling
category permit. In order to renew a permit, the online system requires
applicants to enter vessel information. After the permit is issued, the
permit number remains associated with the vessel and its U.S. Coast
Guard documentation or state registration number. This system works
well for open access permits, which do not have a ``sunset''
requirement specifying that the permit must be renewed within one year
of expiration. However, if an Atlantic tunas longline permit holder
sells their vessel but legally retains the limited access permit, the
permit cannot be renewed without entering vessel information. Problems
with the ``sunset'' requirement have arisen when a legally-retained
permit was not issued to a vessel within one year of expiration. This
final rule will allow Atlantic tunas longline LAPs to be retained, and
later renewed, by the most recent permit holder of record even if the
permit has not been issued to a vessel for more than one year. In that
regard, this final rule accomplishes the same objective as providing
``no vessel'' status for Atlantic tunas longline LAPs.
Comment 9: NMFS should get rid of ``no vessel'' permit status.
Latent permits have no effect on increasing swordfish tonnage.
Response: NMFS believes it is important for LAP holders to have the
ability to retain their permit(s) without possessing a vessel. It
provides flexibility to permit holders who originally qualified for an
LAP and it facilitates permit transferability. There are many
circumstances where a permit holder might not own a vessel, might not
be able to fish, or might choose not to fish. For example their vessel
may have sunk, been sold, or fishery conditions might preclude
participation. Providing LAP holders with the ability to retain their
permits without owning a vessel provides time for them to find a
suitable replacement vessel, or time to make necessary business
decisions. Nevertheless, in a future rulemaking, the Agency may
consider alternatives to address latent fishing effort.
Comment 10: If a legitimate fisherman made a mistake in not
renewing their Atlantic tunas longline LAP, they should be allowed to
obtain a new permit. To verify this, NMFS should put a specific
timeframe or qualification criteria on the 40 vessels with expired
permits. In order to obtain a new permit, they must have fished within
a certain period of time. If they did not fish within that timeframe,
then they should not be reissued the permit. Otherwise, the proposed
rule opens a Pandora's box.
Response: The establishment of restrictive qualification criteria
to become eligible for newly reissued permits runs counter to the
primary intent of this rulemaking, which is to help ensure that the
number of available Atlantic tunas longline LAPs is sufficient to match
the number of available swordfish and shark LAPs. There are
restrictions associated with this final rule, however. NMFS will
reissue Atlantic tunas longline LAPs that have been expired for more
than one year only upon receipt of a complete permit renewal
application from the most recent permit holder of record, provided that
they have also been issued valid swordfish and shark LAPs and all other
permit renewal requirements are met. Former permit holders must apply
for the Atlantic tunas longline LAP, as NMFS will not automatically
reissue the permit to all former permit holders. This action will not
increase the number of PLL vessels above the number of vessels that are
currently issued, or eligible to renew, swordfish directed and
incidental permits. At most, approximately 40 permits could be reissued
as a result of this rule but all of these permits have been issued
before, since LAPs were first implemented in 1999. In a future
rulemaking, the Agency may consider alternatives to address latent
fishing effort.
Comment 11: I support the preferred alternative which would remove
the one year renewal timeframe on Atlantic tunas longline LAPs and
allow the agency to reissue this permit to the most recent permit
holder of record. This would allow me to renew my permit and make my
incidental swordfish permit valid again. It provides an opportunity for
me to retain the incidental swordfish possession limit that may be
caught while fishing for Illex squid. This is a significant benefit
[[Page 38148]]
to my business and it will not have a negative impact on the swordfish
stock. There are between 50 - 70 LAPs issued for Illex squid, and about
20 active Illex squid vessels. Four to five of these vessel owners
would seek to renew their expired Atlantic tunas longline LAP.
Response: NMFS recognizes that some Illex squid trawl vessel owners
indicated that they misunderstood the requirement which specifies that,
in order to retain incidentally-caught swordfish, it is necessary to be
issued an Atlantic tunas longline LAP, a shark LAP, and a swordfish LAP
(other than handgear). This final rule will allow some squid trawl
vessel owners to renew their expired Atlantic tunas longline LAP,
thereby allowing them to retain incidentally-caught swordfish, reduce
or eliminate regulatory swordfish discards, and obtain economic
benefits.
Comment 12: NMFS should consider allowing squid trawlers to obtain
an incidental swordfish LAP without requiring them to also obtain a
corresponding Atlantic tunas longline LAP and a shark LAP. These
vessels fish in approximately 150 - 200 fathoms on the edge of the
continental shelf and rarely, if ever, catch tunas or sharks. They do
not direct fishing effort on swordfish because it is unfeasible. This
modification would allow only for the retention of incidentally-caught
swordfish.
Response: This comment is beyond the scope of this rulemaking,
however NMFS may consider the recommendation in a future rulemaking.
Comment 13: I am concerned about the language which requires that
the swordfish and shark LAPs must have ``been maintained through timely
renewal'' in order to be eligible for a reissued Atlantic tunas
longline LAP. My vessel lost its Atlantic tunas longline LAP because of
non-renewal. I then transferred its swordfish and shark permits to
another vessel. If the swordfish and shark permits are transferred back
to the original vessel (the one that lost its tuna permit), will that
vessel still be eligible for a reissued Atlantic tunas longline LAP as
a result of this rule?
Response: To clarify, upon receipt of a complete permit renewal
application, NMFS will reissue Atlantic tunas longline LAPs that have
been expired for more than one year to the most recent permit holder of
record, but only if the vessel has also been issued both a shark LAP
and a swordfish LAP (other than handgear), and all other requirements
for permit renewal are met. Because the shark and swordfish LAPs must
already be issued, those permits would have been maintained through
timely renewal. In the situation described in this comment, the vessel
would be eligible for a newly reissued Atlantic tunas longline LAP if
it was previously issued the tuna permit, and was currently issued both
swordfish and shark LAPs, regardless of whether those swordfish and
shark LAPs were transferred from another vessel.
Comment 14: NMFS should require that permit recipients have a boat
as a qualification criterion before reissuing a new Atlantic tunas
longline LAP. If a fisherman invests in building or buying a boat, it
demonstrates their commitment to the fishery and they should be
reissued the permit. This requirement would also prevent permits from
being sold from one area to another area.
Response: Under this final rule, the eligibility to be issued an
Atlantic tunas longline LAP will not be dependent upon possessing a
vessel. The most recent permit holder of record for an Atlantic tunas
longline LAP will be eligible to renew that permit with no ``sunset''
date. However, the permit cannot actually be reissued until the most
recent permit holder of record possesses a vessel for which the permit
can be issued. NMFS believes that the establishment of more restrictive
qualification criteria, such as owning a vessel to become eligible for
a newly reissued permit, would run counter to the intent of this
rulemaking which is to ensure that the available number of Atlantic
tunas longline LAPs is sufficient to match the number of available
swordfish and shark LAPs.
Comment 15: NMFS should not require that newly reissued permits be
linked to a vessel. Vessels can sink or be taken out of service for
many reasons. Therefore, people need to have the flexibility to keep
their permits separate from vessels so that the permit can be used
later. Some people might not be able to get back into the fishery
because they are sick or incapacitated. However, they should be allowed
to keep their permit in ``no vessel'' status and to sell it later so
that it can actually be used to fish.
Response: As described above in the response to Comment 14, it is
necessary for a person to possess a vessel in order to be issued, or
reissued, an Atlantic tunas longline LAP. This is a function of the
permit renewal system. However, the eligibility to be issued an
Atlantic tunas longline LAP will not be dependent upon possessing a
vessel. Therefore, if a person was previously issued an Atlantic tunas
longline LAP and they remain the most recent permit holder of record,
they would be eligible to renew the permit with no ``sunset'' date, but
the permit could not actually be issued until there is a vessel to
which the permit may be issued. They would not lose their eligibility
to renew their permit if they do not have a vessel, or if they become
sick or incapacitated.
Comment 16: I oppose the proposed rule. The proposed regulations
will allow people who didn't follow the law regarding permit renewals
to obtain an Atlantic tunas longline LAP. Some fishermen paid a lot of
money to buy that permit. The proposed rule would allow people who are
reissued the permit to obtain an economic benefit. Why is NMFS
rewarding these 40 individuals? This rule makes a difference to people
who had to buy a permit for a lot of money. The 40 affected individuals
have not been fishing. They parked their permit, and now they will be
able to renew it. NMFS should be more forthright about why it is
allowing these people to renew their permit if it has been expired for
more than one year.
Response: NMFS is implementing this final rule primarily to ensure
that an adequate number of Atlantic tunas longline LAPs are available
to match the available number of swordfish and shark LAPs because all
three permits are needed to retain swordfish (other than with the
swordfish handgear LAP) and to fish for tunas with PLL gear. This rule
is also being implemented so that the HMS regulations better reflect
the operational constraints associated with the Atlantic tunas longline
permit issuance system. For example, because the tuna permit issuance
system lacks a ``no vessel'' status, some people without a vessel were
unable to renew their Atlantic tunas longline LAP within one year and
they lost their eligibility for the permit. Also, some squid trawl
vessel owners issued incidental swordfish permits indicated that they
misunderstood the requirement, which specifies that they must also be
issued an Atlantic tunas longline LAP and a shark LAP in order to
retain swordfish. These vessel owners inadvertently failed to renew
their tuna permit within one year of expiration, lost their
eligibility, and have since had to discard incidentally-caught
swordfish. NMFS is aware that this rule could potentially provide an
economic benefit to former permit holders who are reissued the permit.
However, all of the individuals affected by this rule originally
qualified for the permit, or obtained it through transfer. NMFS will
not be issuing new permits to everyone who submits an application. The
Atlantic tunas longline permit remains a limited access permit. Unless
a person is the most recent
[[Page 38149]]
Atlantic tunas longline permit holder of record, the permit can still
only be obtained through transfer.
Comment 17: I oppose the proposed rule. It would reward individuals
that have not helped the swordfish fishery at all. Their permits are
being carried solely as an investment. Anyone who owns a permit knows
that people are looking to buy permits. This proposed rule offers an
opportunity for these individuals to sell their newly reissued permits.
Many former permit holders will sell the Atlantic tunas longline LAP
for economic benefit to south Florida vessel owners that want to fish
with buoy gear.
Response: The final rule will allow former Atlantic tunas longline
permit holders to renew this permit if it has been expired for more
than one year. They will then become legally eligible to retain
swordfish, provided that they have also been issued a shark and
swordfish LAP (other than handgear) and are compliant with all other
regulations. Because these former permit holders were previously not
allowed to renew their expired Atlantic tunas longline LAPs, they were
not able to retain swordfish or ``help'' the swordfish fishery. It is
unlikely that these former permit holders allowed their Atlantic tunas
longline permit to expire for more than one year if they were holding
onto it for investment purposes, as the permits would no longer be
renewable. Many former permit holders have indicated that they
misunderstood the requirement which specifies that an Atlantic tunas
longline LAP is necessary to retain swordfish (except with a swordfish
handgear LAP), or that they were not able to be issued a tunas longline
LAP because they did not possess a vessel, or were confused by the
permit renewal procedures. Under this final rule, if a person whose
Atlantic tunas longline LAP has been expired for more than one year
possesses a vessel, applies for the permit, has been issued both
swordfish and shark LAPs (other than swordfish handgear), and meets all
other permit renewal requirements, they will be reissued a new permit.
The permit could then be used to fish, or it could be sold and
transferred. Transferability is an important feature of all HMS LAPs.
If some of the newly reissued permits are transferred to people who are
then able to fish for swordfish as a result of this final rule, it
would be beneficial to the United States for achieving the domestic
swordfish quota. It is possible that some transferred permits could be
used to participate in the buoy gear fishery in south Florida. The buoy
gear fishery is currently authorized and managed under the Consolidated
HMS Fishery Management Plan (Consolidated HMS FMP). NMFS monitors, and
will continue to monitor, the buoy gear fishery to determine if changes
to the regulations governing this fishery are warranted.
Comment 18: The United States will not catch its swordfish quota if
the newly reissued permits are not actually used to catch fish. The
final rule should contain a ``sunset clause'' which specifies that if a
newly reissued permit is not used to fish by a certain date, then it
would be revoked. The United States needs to put boats on the water.
Therefore, the recipients must either use the permit or lose the
permit.
Response: NMFS is not imposing any additional restrictions, such as
a ``use or lose'' date, upon newly reissued Atlantic tunas longline
LAPs. The establishment of restrictive criteria to retain the permit,
or to retain eligibility for the permit, would run counter to the
intent of this rulemaking, which is primarily to ensure that the number
of available Atlantic tunas longline LAPs is sufficient to match the
number of available swordfish and shark LAPs. There are many instances
when a person may not be able to fish. Requiring a person to fish with
a newly reissued permit within a certain period of time, or else risk
losing the permit, could compromise their safety at sea and would limit
their business's planning and decision-making flexibility. As stated in
the responses to comments 9 and 10, the Agency may consider
alternatives to address latent fishing effort in a future rulemaking.
Comment 19: NMFS should not allow any newly reissued permits to be
sold or transferred.
Response: NMFS believes that the regulations governing the sale and
transfer of all HMS LAPs should be consistent for administrative
purposes and to minimize confusion, especially because swordfish,
shark, and Atlantic tunas longline LAPs are often transferred together
as a three-permit package. It would be confusing for the public and
difficult for NMFS to administer if only certain Atlantic tunas
longline LAPs were transferrable, while others were not. Furthermore,
permit transferability is an important feature of HMS LAPs because it
allows permit buyers and sellers to determine how permits are utilized,
rather than the federal government. Finally, the establishment of
restrictive criteria applying only to the transfer of certain Atlantic
tunas longline LAPs would run counter to the intent of this rulemaking,
which is primarily to ensure that the number of available Atlantic
tunas longline LAPs is sufficient to match the number of available
swordfish and shark LAPs.
Comment 20: NMFS should create a ``pool'' of unused or revoked
permits that could be issued to people who want to fish. There needs to
be more HMS permits available so that people who want to buy a boat and
fish can more easily obtain a permit.
Response: NMFS does not currently intend to revoke latent HMS LAPs,
or to serve as a broker for revoked or latent permits. As discussed in
the response to Comment 5, there are currently a large number of latent
or inactive permits in the HMS PLL fishery. All of these permits are
transferrable, so NMFS encourages anyone interested in participating in
an HMS limited access fishery to make the appropriate contacts and
obtain the needed permits.
Comment 21: NMFS should allow for the leasing and chartering of HMS
permits to foreign vessels. This would allow the newly reissued
Atlantic tunas longline LAPs permits to be used for fishing on the high
seas.
Response: This comment is beyond the scope of this rulemaking,
however NMFS may consider the recommendation in a future rulemaking.
Comment 22: I support the proposed action, but it should only be
considered a first step. Is this the entire extent of the permit
revisions that NMFS is considering? NMFS should allow all lapsed
swordfish, shark, and tuna permits to be reinstated. The United States
needs more boats on the water catching fish. Many people lost their
permits either through attrition, or because they were confused by the
renewal process. NMFS should address the entire issue by reissuing all
expired shark and swordfish permits. Does NMFS plan to reinstate other
lapsed HMS permits?
Response: NMFS does not presently intend to reinstate other lapsed
HMS permits. This final rule only affects lapsed Atlantic tunas
longline LAPs because the situation regarding these permits is unique.
The operational constraints of the online renewal system for this
permit prevented some otherwise qualified permit holders from renewing
their permit because they did not own a vessel. Also, several squid
trawl vessel owners indicated that they misunderstood they needed an
Atlantic tunas longline LAP and a shark LAP to retain incidentally-
caught swordfish, even though they were issued an incidental swordfish
permit. Finally, the renewal reminder and permit application process
for Atlantic tunas longline LAPs is different from other HMS LAPs. NMFS
recognizes these
[[Page 38150]]
differences and realizes that some former permit holders may not have
been able to renew their permit, or were confused by the regulations or
renewal process. This final rule provides an immediate remedy to these
readily identifiable problems. NMFS may also consider other, more
comprehensive, permit-related issues in a future rulemaking.
Comment 23: I oppose the proposed action. There are already enough
HMS permits available now.
Response: There are many latent HMS permits, including
approximately 131 complete three-permit PLL ``packages.'' However, some
people are issued only one or two of the three required permits needed
to retain swordfish (other than with handgear), or to fish for tunas
with PLL gear. If these people were to complete their three-permit
package by obtaining an Atlantic tunas longline LAP through transfer,
the transferor could then have an incomplete permit package. This is
the permit imbalance that NMFS is seeking to address. This final rule
is less focused on reissuing more Atlantic tunas longline LAPs, and
more focused on ensuring that currently issued swordfish permits are
valid (because they are held in conjunction with the other two
permits). It will help to slow the rate of attrition in the PLL fishery
without increasing the number of PLL vessels above the number of permit
holders issued swordfish LAPs.
Shark Dealer Workshops
Comment 24: Are shark dealer permits issued to individuals or to
entities?
Response: Shark dealer permits may be issued to both individuals
and corporate entities.
Comment 25: Does the final rule change the HMS regulations at Sec.
635.28(b)(3) which state that, when the fishery for a shark species
group in a particular region is closed, shark dealers in that region
may not purchase or receive sharks of that species group from a vessel
issued an Atlantic shark LAP?
Response: No. This final rule primarily modifies Atlantic Shark
Identification Workshop requirements at Sec. 635.8(b) for Atlantic
shark dealers that have more than one place of business listed on their
shark dealer permit. Also, this final rule implements a requirement
which specifies that trucks or other conveyances of a dealer's place of
business must possess a copy of a valid Atlantic Shark Identification
Workshop certificate (dealer or proxy) issued to a place of business
covered by the dealer permit.
Comment 26: The Atlantic Shark Identification Workshops use shark
``logs'' and the second dorsal and anal fins to identify sharks. NMFS
should allow the workshop instructor to have access to prohibited
species, different life history stages, and different product forms to
further improve dealer identification skills.
Response: NMFS will examine the feasibility and necessity of
providing these items at future workshops.
Changes from the Proposed Rule
There are no changes from the proposed rule.
Classification
The Assistant Administrator, NMFS, has determined that this final
rule is necessary for the conservation and management of the HMS
fishery and that it is consistent with the Magnuson-Stevens Fishery
Conservation and Management Act and other applicable laws.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
A Final Regulatory Flexibility Analysis (FRFA) was prepared. The
FRFA incorporates the IRFA, a summary of the significant issues raised
by the public comments in response to the IRFA, NMFS' responses to
those comments, and a summary of the analyses. The full FRFA is
available from NMFS (see ADDRESSES). A summary of the information
presented in the FRFA follows.
Section 604(a)(1) of the Regulatory Flexibility Act (RFA) requires
the Agency to state the objective and need for the rule. As stated in
the proposed rule, the objective of this final rule regarding the
renewal of expired Atlantic tunas longline LAPs is to help ensure that
an adequate number of complementary Atlantic tunas longline LAPs are
available for swordfish and shark LAP holders to fish legally for
Atlantic swordfish and tunas with PLL gear. Consistent with the
Magnuson-Stevens Act and ATCA, this action is also intended to help
provide a reasonable opportunity for U.S. vessels to harvest quota
allocations recommended by ICCAT, in recognition of the improved stock
status of North Atlantic swordfish (B = 0.99Bmsy).
The amendment regarding attendance requirements at Atlantic Shark
Identification Workshops is necessary because some shark dealers do not
receive shark products at all of the locations listed on their permit,
thus making it unnecessary to require workshop certification for those
locations where sharks are not received. For technical and
administrative reasons, it is not currently feasible for NMFS to list
only locations on the shark dealer permit where sharks are first
received, if a dealer also has other locations where other species are
received. This final rule requires dealers to submit an Atlantic Shark
Identification Workshop certificate (dealer or proxy) for each place of
business listed on the shark dealer permit which first receives
Atlantic sharks by way of purchase, barter, or trade, rather than from
each location listed on their dealer permit. This will eliminate the
need for a dealer to send a proxy to a workshop to obtain a certificate
for a business location that does not first receive Atlantic shark
products for the sole purpose of renewing their Atlantic shark dealer
permit. The requirement to possess, and make available for inspection,
an Atlantic Shark Identification Workshop certificate is similarly only
required at locations listed on the dealer permit where sharks are
first received. Additionally, this final rule requires that extensions
of a dealer's business, such as trucks or other conveyances, must
possess a copy of a valid dealer or proxy certificate issued to a place
of business covered by the dealer permit. This will allow trucks or
other conveyances of a NMFS-certified place of business to be
immediately identified as being eligible to first receive Atlantic
sharks.
Section 604(a)(2) of the RFA requires the Agency to summarize
significant issues raised by the public comments in response to the
IRFA, summarize the assessment of the Agency of such issues, and state
any changes made in the rule as a result of such comments. NMFS
received several comments on the proposed rule during the public
comment period. A summary of the comments and the Agency's responses
are included in the preamble of this final rule. NMFS did not receive
any comments specific to the IRFA, but did receive a limited number of
comments related to economic issues and concerns. These comments are
responded to with the other comments (see Comments 11, 16, and 17). The
comments on economic concerns are also summarized here.
A comment was received indicating that the preferred alternative
for the renewal of Atlantic tunas longline LAPs would allow some Illex
squid trawlers to renew their Atlantic tunas longline permit again,
thus making their incidental swordfish permit valid. This would allow
them to retain incidentally-caught swordfish and provide a significant
economic benefit to their
[[Page 38151]]
business. NMFS concurs with this assessment that the final action could
provide an economic benefit to some former permit holders, and reduce
or eliminate swordfish regulatory discards by allowing squid trawlers
to retain incidentally-caught swordfish.
Another commenter stated that the preferred alternative would allow
people who did not follow the regulations regarding permit renewal to
obtain a new Atlantic tunas longline LAP, whereas some fishermen had to
pay for the permit. In response, NMFS stated that the intent of the
final rule is to help ensure that the number of available Atlantic
tunas longline LAPs is sufficient to match the number of available
swordfish and shark LAPs. Furthermore, all of the individuals affected
by this rule either originally qualified for an Atlantic tunas longline
LAP, or obtained it through transfer. NMFS will not be issuing new
permits to everyone who submits an application. The Atlantic tunas
longline permit remains a limited access permit. Unless a person is the
most recent Atlantic tunas longline permit holder of record, the permit
can only be obtained through transfer.
Finally, NMFS received a comment stating that the preferred
alternative provides an opportunity for individuals to sell their newly
reissued Atlantic tunas longline LAP for their own economic benefit,
possibly to south Florida vessel owners that want to fish with buoy
gear. In response, NMFS believes it would be beneficial for achieving
the domestic north Atlantic swordfish quota if some people who want to
fish for swordfish are able to do so legally. Some of the transferred
permits could be used to participate in the buoy gear fishery in south
Florida. NMFS will continue to monitor the buoy gear fishery to
determine if additional regulations are needed.
No changes to the final rule were made as a result of these
comments.
Section 604(a)(3) of the RFA requires the Agency to describe and
estimate the number of small entities to which the final rule will
apply. NMFS considers all commercial permit holders to be small
entities as reflected in the Small Business Administration's (SBA) size
standards for defining a small business entity (gross receipts less
than $4.0 million). The final action to modify permit renewal
requirements for Atlantic tunas longline LAPs would most immediately
impact approximately 40 vessel owners that are the most recent permit
holders of record, but are not eligible to renew that permit because it
has been expired for more than one year. Potentially, 245 vessel owners
that are concurrently issued Atlantic tunas longline, swordfish, and
shark LAPs could be affected by this action if, in the future, they
fail to renew their Atlantic tunas longline LAP within one year of
expiration.
Based upon information obtained from the Southeast Regional Office
permits shop, as of May 19, 2008, NMFS had issued 142 Atlantic shark
dealer permits (not counting Atlantic shark dealers located in Pacific
states (5 in CA, and 2 in HI)). Of these, 41 individual dealers had
multiple locations (ranging from two to eight locations) listed on
their permit. Eighty-four of these shark dealers had been issued a
workshop certificate for at least one location, and 58 shark dealers
had not been issued any workshop certificates for any locations.
Approximately 8 of the 41 dealers with multiple locations had been
issued at least one certificate, but not certificates for all of the
locations listed on their permit. Thus, under the current regulations,
these 8 dealers would not be eligible to renew their shark dealer
permit. The 8 Atlantic shark dealers who have not been issued proxy
certificates for all of their locations are most immediately affected
by this final rule because, as a result of this rule, they would be
eligible to renew their shark dealer permit by submitting workshop
certificates only for locations that actually receive shark products.
Potentially, any of the 41 Atlantic shark dealers with multiple
locations listed on their permit could also be impacted by this action.
All of the aforementioned businesses are considered small business
entities according to the Small Business Administration's standard for
defining a small entity.
Section 604(a)(4) of the RFA requires NMFS to describe the
projected reporting, recordkeeping, and other compliance requirements
of the final rule, including an estimate of the classes of small
entities that will be subject to the requirements of the report or
record. This final rule does not contain any new reporting,
recordkeeping, or other compliance requirements that will require new
Paperwork Reduction Act filings. Atlantic shark dealers will need to
comply with a new requirement to possess a copy of their Atlantic Shark
Identification Workshop certificate (dealer or proxy) in their trucks
or other conveyances which serve as extensions of a dealer's place of
business. This will help to facilitate the identification of trucks or
other conveyances as extensions of a NMFS-certified place of business
which is eligible to receive Atlantic sharks.
Section 604(a)(5) of the RFA requires the Agency to describe the
steps taken to minimize the significant economic impact on small
entities consistent with the stated objectives of the applicable
statutes, including a statement of the factual, policy, and legal
reasons for selecting the alternative adopted in the final rule and why
each one of the other significant alternatives to the rule considered
by the agency which affect the impact on small entities was rejected.
Additionally, the RFA (5 U.S.C. 603(c)(1) through (4)) lists four
general categories of ``significant'' alternatives that would assist an
agency in the development of significant alternatives. These categories
of alternatives are:
1. Establishment of differing compliance or reporting requirements
or timetables that take into account the resources available to small
entities;
2. Clarification, consolidation, or simplification of compliance
and reporting requirements under the rule for such small entities;
3. Use of performance rather than design standards; and
4. Exemptions from coverage of the rule for small entities.
As noted earlier, NMFS considers all commercial permit holders to
be small entities. In order to meet the objectives of this final rule,
consistent with the Magnuson-Stevens Act, ATCA, and the ESA, NMFS
cannot exempt small entities or change the compliance requirements only
for small entities. Thus, there are no alternatives that fall under the
first and fourth categories described above.
With regards to category two, none of the alternatives considered
would result in additional reporting requirements. The selected
alternative for Atlantic Shark Identification Workshops requires shark
dealers to possess a copy of their workshop certificate (dealer or
proxy) in trucks or other conveyances which serve as extensions of a
dealers' place of business. The only compliance requirement involves
making a photocopy of the workshop certificate, and possessing that
copy inside dealer's trucks or conveyances. This requirement will
facilitate the identification of vehicles which serve as extensions of
a NMFS-certified place of business that is eligible to receive Atlantic
sharks.
Category three emphasizes the use of performance standards rather
than design standards in the development of alternatives. None of the
alternatives require compliance with standards, so there are no
alternatives that fall under this category.
NMFS considered two alternatives to address the renewal of Atlantic
tunas
[[Page 38152]]
longline LAPs that have been expired for more than one year, and two
alternatives to address Atlantic Shark Identification Workshop
attendance requirements. As described below, NMFS has provided
justification for the selection of the preferred alternatives to
achieve the desired objectives of this rulemaking.
Alternative 1 for the renewal of Atlantic tunas longline LAPs
(alternative 2.1.1 in the FRFA) is the no action, or status quo,
alternative. Current HMS regulations at 50 CFR 635.4(m)(2) specify that
only persons holding a non-expired Atlantic tunas longline LAP in the
preceding year are eligible to renew that permit. Under alternative 1,
there would be no change in the existing regulations and, as such, no
change in the current baseline economic impacts. However, the situation
regarding the renewal of Atlantic tunas longline LAPs is unique. Until
September 2007, the procedures for renewing Atlantic tunas longline
LAPs were implemented differently than for swordfish and shark LAPs.
Since September 2007, the permit renewal regulations have been
administered similarly. Thus, the no action alternative would continue
any existing economic impacts, but those impacts have only been in
existence since September 2007.
The no action alternative was not selected because it has the
largest associated adverse economic impacts. Without an Atlantic tunas
longline LAP, a permit holder is prohibited from fishing for tunas with
PLL gear and from retaining swordfish, even if the vessel has been
issued a directed or incidental swordfish permit. As many as 40
commercial fishing vessels that previously qualified for LAPs to
participate in the PLL fishery would continue to be prohibited from
participating in the fishery, harvesting the U.S. swordfish quota, and
creating jobs. Thus a failure to take action would prevent the
realization of economic gains associated with increased swordfish
fishing.
Under the selected alternative (preferred alternative 2.1.2 in the
FRFA), NMFS would remove the one-year renewal timeframe for Atlantic
tunas longline LAPs. This would allow the Agency to reissue the permit
to the most recent permit holder of record, even if the Atlantic tunas
longline LAP had not been renewed within one year of expiration,
provided that they were issued swordfish and shark LAPs and all other
requirements for permit renewal were met. The requirement to possess
swordfish and shark LAPs in order to obtain an Atlantic tunas longline
LAP would remain in effect. Also, current regulations which specify
that only persons holding non-expired swordfish and shark LAPs in the
preceding year are eligible to renew those permits would remain in
effect.
Relative to the no action alternative, removing the one-year
renewal timeframe for Atlantic tunas longline LAPs is projected to
potentially increase net and gross revenues for approximately 40 vessel
owners who are otherwise qualified to fish for swordfish and tunas with
PLL gear, except that they are currently ineligible to renew their
Atlantic tunas longline LAP. Overall fleet-wide gross economic benefits
could potentially increase as much as $7,842,280 under this
alternative, relative to the baseline. Also, an overall fleet-wide
increase in net revenues (profits) of approximately $200,000 to
$721,839 could occur, distributed among the 40 vessels potentially
impacted by this alternative. Under this alternative, each individual
vessel owner could see an increase in annual net revenues ranging from
$0 to potentially over $100,000, depending upon the profitability of
their business.
Another important benefit associated with the selected alternative
is that it could help to maintain the domestic swordfish and tuna PLL
fishery at historical levels by allowing 35 - 40 vessels to participate
in the fishery that, since September 2007, have not been permitted to
do so. All of the potentially affected vessels/permit holders
originally qualified for the longline fishery in 1999, or received the
necessary permits through transfer. Thus, relative to August 2007 and
years prior, there would be no change in historical fishing practices,
fishing effort, or economic impact. However, relative to September 2007
and beyond, potential economic benefits to the affected permit holders
would result. The selected alternative could also help the United
States retain its historic swordfish quota allocation at ICCAT and
sustain employment opportunities in the domestic PLL fleet. Maintaining
a viable domestic PLL fishery is important because it could help to
demonstrate that a well-managed, environmentally-sound fishery can also
be profitable. This could eventually provide an incentive for other
nations to adopt similar management measures that are currently
required of the U.S. PLL fleet such as circle hooks, careful release
gears, and other measures described in the response to Comment 1 above.
A related potential impact associated with both alternatives is
that changes to the value of an Atlantic tunas longline LAP could occur
by changing the supply of available permits. The no action alternative
would likely reduce the supply of available permits over time, thereby
increasing the value of the permit. The selected alternative could
initially increase the supply relative to the period since September
2007, and thereby reduce the value. These impacts would be either
positive or negative for small business entities, depending upon
whether the Atlantic tunas longline LAP was being bought or sold.
There are no other significant alternatives for the renewal of
Atlantic tunas longline permits, except for the two aforementioned
alternatives. The selected alternative achieves the objectives of this
rulemaking, provides benefits to small entities, and has few associated
impacts because the regulatory changes will be more representative of
the actual operational capabilities of the Atlantic tunas longline LAP
renewal system. The selected alternative will help to ensure that an
adequate number of Atlantic tunas longline LAPs are available to match
the available number of swordfish and shark LAPs, which is important
because all three permits are needed to retain swordfish (other than
with the swordfish handgear LAP) and to fish for tunas with PLL gear.
Alternative 1 for attendance requirements at Atlantic Shark
Identification Workshops (alternative 2.2.1 in the FRFA) is the no
action alternative. All dealers intending to renew their Atlantic shark
dealer permit would continue to be required to become certified at an
Atlantic Shark Identification Workshop, or to have their proxies
certified. Dealers with multiple locations listed on their permit would
receive certificates for each location listed on their permit. Dealers
opting not to become certified and to send a proxy would continue to be
required to send a proxy for each location listed on their Atlantic
shark dealer permit. Atlantic shark dealers would not be allowed to
renew their permit without submitting either a dealer or proxy
certificate for each location listed on their Atlantic shark dealer
permit. Additionally, Atlantic shark dealers could not receive shark
products at a location that does not have a valid workshop certificate
for that address on the premises.
There are approximately 41 Atlantic shark dealers with more than
one location listed on their permit. These dealers have the choice of
becoming certified themselves, or sending a proxy to the workshops for
each location listed on a permit. As described in the Consolidated HMS
FMP and its final
[[Page 38153]]
rule (71 FR 58058, October 2, 2006), on an individual basis the costs
incurred by dealers and/or proxies are those related to travel and the
time required to attend the workshops, which result in out of pocket
expenses and lost opportunity costs. Travel costs to attend these
workshops vary, depending upon the distance that must be traveled.
Daily opportunity costs for dealers are not currently known. Therefore,
it is not possible to precisely quantify the costs associated with the
no action alternative. At a minimum, the costs for a dealer attending a
workshop include travel expenses and at least one day of lost
opportunity costs. At a maximum, for dealers opting to send proxies for
each location listed on their permit, the costs could include travel
expenses for several proxies and several days of lost opportunity
costs.
The selected alternative for Atlantic Shark Identification Workshop
attendance requirements (preferred alternative 2.2.2 in the FRFA)
specifies that, upon permit renewal, a dealer must submit an Atlantic
Shark Identification Workshop certificate (dealer or proxy) for each
place of business listed on the dealer permit which first receives
Atlantic sharks by way of purchase, barter, or trade, rather than from
each location listed on their dealer permit. The requirement to
possess, and make available for inspection, an Atlantic Shark
Identification Workshop certificate is similarly only required at
locations listed on the dealer permit where sharks are first received.
This eliminates the need for a dealer to send a proxy to a workshop to
obtain a certificate for a business location that does not first
receive Atlantic shark products.
As mentioned above, there are currently 41 shark dealers with
multiple locations listed on their permit which could be impacted by
the proposed action. Of these, 8 Atlantic shark dealers have not
currently been issued Atlantic Shark Identification Workshop
certificates for all of the locations listed on their permit.
NMFS estimates that the total costs (travel costs and opportunity
costs) associated with the selected alternative for Atlantic Shark
Identification Workshop attendance requirements will be lower than
those associated with the no action alternative, but only for Atlantic
shark dealers that: (1) opt to send a proxy (or proxies) to the
workshop; (2) have multiple locations listed on their permit; and, (3)
only first receive shark products at some of the locations listed on
their Atlantic shark dealer permit. Costs will remain unchanged for
shark dealers that do not meet these three criteria. For dealers that
meet these criteria, the costs will be reduced by an amount equivalent
to sending proxies for each location listed on the permit that do not
first receive shark products. For example, if a dealer chooses to send
proxies and has four locations listed on the permit, but only two of
those locations first receive shark products, the costs would be
reduced by the amount equivalent to sending two proxies to an Atlantic
Shark Identification Workshop.
The selected alternative also requires that extensions of a
dealer's business, such as trucks or other conveyances, must possess a
copy of a valid dealer or proxy certificate issued to a place of
business covered by the dealer permit. This requirement allows trucks
or other conveyances to be immediately identified as extensions of a
NMFS-certified place of business which is eligible to receive Atlantic
sharks. NMFS anticipates that this requirement will have minimal costs
but will improve the enforceability of existing Atlantic shark
regulations.
There are no other significant alternatives for Atlantic Shark
Identification Workshop attendance requirements except for these two
alternatives. Administratively it is not currently feasible, for both
technical and programmatic reasons, to modify the NMFS permits database
to accommodate dealers having different locations where they receive
different species. The selected alternative requires dealers to display
an Atlantic Shark Identification Workshop certificate at all locations
where sharks are first received. Therefore, it achieves the objective
of improving the identification and reporting of shark species, while
simultaneously lessening impacts on dealers. The selected alternative
will also improve the enforceability of existing Atlantic shark
regulations by requiring extensions of a dealer's business, such as
trucks or other conveyances, to possess a copy of a valid dealer or
proxy certificate issued to a place of business covered by the dealer
permit.
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Fishing vessels, Management, Penalties,
Reporting and recordkeeping requirements.
Dated: June 27, 2008.
John Oliver
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
0
For 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. 635.4, paragraph (m)(2) is revised to read as follows:
Sec. 635.4 Permits and fees.
* * * * *
(m) * * *
(2) Shark and swordfish LAPs. The owner of a vessel of the U.S.
that fishes for, possesses, lands or sells shark or swordfish from the
management unit, or that takes or possesses such shark or swordfish as
incidental catch, must have the applicable limited access permit(s)
issued pursuant to the requirements in paragraphs (e) and (f) of this
section. Only persons holding non-expired shark and swordfish limited
access permit(s) in the preceding year are eligible to renew those
limited access permit(s). Transferors may not renew limited access
permits that have been transferred according to the procedures in
paragraph (l) of this section.
0
3. In Sec. 635.8, paragraphs (b)(4), (b)(5), and (c)(4) are revised to
read as follows:
Sec. 635.8 Workshops.
* * * * *
(b) * * *
(4) Dealers may send a proxy to the Atlantic shark identification
workshops. If a dealer opts to send a proxy, the dealer must designate
at least one proxy from each place of business listed on the dealer
permit, issued pursuant to Sec. 635.4(g)(2), which first receives
Atlantic shark by way of purchase, barter, or trade. The proxy must be
a person who is currently employed by a place of business covered by
the dealer's permit; is a primary participant in the identification,
weighing, and/or first receipt of fish as they are offloaded from a
vessel; and fills out dealer reports as required under Sec. 635.5.
Only one certificate will be issued to each proxy. If a proxy is no
longer employed by a place of business covered by the dealer's permit,
the dealer or another proxy must be certified as having completed a
workshop pursuant to this section. At least one individual from each
place of business listed on the dealer permit which first receives
Atlantic sharks by way of purchase, barter, or trade must possess a
valid Atlantic shark identification workshop certificate.
(5) A Federal Atlantic shark dealer issued or required to be issued
a shark dealer permit pursuant to Sec. 635.4(g)(2) must possess and
make available for
[[Page 38154]]
inspection a valid Atlantic shark identification workshop certificate
at each place of business listed on the dealer permit which first
receives Atlantic sharks by way of purchase, barter, or trade. For the
purposes of this part, trucks or other conveyances of a dealer's place
of business are considered to be extensions of a dealer's place of
business and must possess a copy of a valid dealer or proxy certificate
issued to a place of business covered by the dealer permit. A copy of
this certificate issued to the dealer or proxy must be included in the
dealer's application package to obtain or renew a shark dealer permit.
If multiple businesses are authorized to receive Atlantic sharks under
the dealer's permit, a copy of the workshop certificate for each place
of business listed on the dealer permit which first receives Atlantic
sharks by way of purchase, barter, or trade must be included in the
shark dealer permit renewal application package.
(c) * * *
(4) An Atlantic shark dealer may not first receive, purchase,
trade, or barter for Atlantic shark without a valid Atlantic shark
identification workshop certificate. A valid Atlantic shark
identification workshop certificate must be maintained on the premises
of each place of business listed on the dealer permit which first
receives Atlantic sharks by way of purchase, barter, or trade. An
Atlantic shark dealer may not renew a Federal dealer permit issued
pursuant to Sec. 635.4(g)(2) unless a valid Atlantic shark
identification workshop certificate has been submitted with the permit
renewal application. If the dealer is not certified, the dealer must
submit a copy of a proxy certificate for each place of business listed
on the dealer permit which first receives Atlantic sharks by way of
purchase, barter, or trade.
* * * * *
0
4. In Sec. 635.21, paragraph (e)(4)(iii) is revised to read as
follows:
Sec. 635.21 Gear operation and deployment restrictions.
* * * * *
(e) * * *
(4) * * *
(iii) A person aboard a vessel issued or required to be issued a
valid directed handgear LAP for Atlantic swordfish may not fish for
swordfish with any gear other than handgear. A swordfish will be deemed
to have been harvested by longline when the fish is on board or
offloaded from a vessel using or having on board longline gear. Only
vessels that have been issued, or that are required to have been
issued, a valid directed or handgear swordfish LAP under this part may
utilize or possess buoy gear. Vessels utilizing buoy gear may not
possess or deploy more than 35 floatation devices, and may not deploy
more than 35 individual buoy gears per vessel. Buoy gear must be
constructed and deployed so that the hooks and/or gangions are attached
to the vertical portion of the mainline. Floatation devices may be
attached to one but not both ends of the mainline, and no hooks or
gangions may be attached to any floatation device or horizontal portion
of the mainline. If more than one floatation device is attached to a
buoy gear, no hook or gangion may be attached to the mainline between
them. Individual buoy gears may not be linked, clipped, or connected
together in any way. Buoy gears must be released and retrieved by hand.
All deployed buoy gear must have some type of monitoring equipment
affixed to it including, but not limited to, radar reflectors, beeper
devices, lights, or reflective tape. If only reflective tape is
affixed, the vessel deploying the buoy gear must possess on board an
operable spotlight capable of illuminating deployed floatation devices.
If a gear monitoring device is positively buoyant, and rigged to be
attached to a fishing gear, it is included in the 35 floatation device
vessel limit and must be marked appropriately.
* * * * *
0
5. In Sec. 635.71, paragraph (d)(14) is revised to read as follows:
Sec. 635.71 Prohibitions.
* * * * *
(d) * * *
(14) Receive, purchase, trade, or barter for Atlantic shark without
making available for inspection, at each of the dealer's places of
business listed on the dealer permit which first receives Atlantic
sharks by way of purchase, barter, or trade, a valid Atlantic shark
identification workshop certificate issued by NMFS in violation of
Sec. 635.8(b), except that trucks or other conveyances of the business
must possess a copy of such certificate.
* * * * *
[FR Doc. E8-15195 Filed 7-2-08; 8:45 am]
BILLING CODE 3510-22-S