Atlantic Tuna Fisheries; Regulatory Adjustments

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 285

[Docket No. 960816226-7172-05; I.D. 061897C]

RIN 0648-AJ04

Atlantic Tuna Fisheries; Regulatory Adjustments

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to amend the regulations governing

the Atlantic tuna fisheries to prohibit the use of aircraft to assist

fishing vessel operators in the location and capture of Atlantic

bluefin tuna (ABT), with the exception of vessels permitted in the

Purse Seine and Harpoon categories, and to establish a deadline for

permit category changes for 1997 only. These regulatory amendments are

necessary to achieve the domestic management objectives for the

Atlantic tuna fisheries.

DATES: Effective July 14, 1997.

ADDRESSES: Copies of supporting documents, including an Environmental

Assessment and Regulatory Impact Review (EA/RIR), are available from,

Rebecca Lent, Chief, Highly Migratory Species Management Division,

Office of Sustainable Fisheries (F/SF1), NMFS, 1315 East-West Highway,

Silver Spring, MD 20910-3282.

FOR FURTHER INFORMATION CONTACT: John Kelly, 301-713-2347.

SUPPLEMENTARY INFORMATION: The Atlantic tuna fisheries are managed

under the authority of the Atlantic Tunas Convention Act (ATCA). The

ATCA authorizes the Secretary of Commerce (Secretary) to issue

regulations as may be necessary to carry out the recommendations of the

International Commission for the Conservation of Atlantic tunas

(ICCAT). The authority to issue these regulations has been delegated

from the Secretary to the Assistant Administrator for Fisheries, NOAA

(AA).

Background information about the need for revisions to the Atlantic

tunas fishery regulations was provided in the preamble to the proposed

rule (62 FR 9726, March 4, 1997) and is not repeated here. All measures

in the proposed rule, except for the prohibition on the use of

aircraft, were addressed in an earlier final rule (62 FR 30741, June 5,

1997). Additionally, NMFS issued an interim final rule that suspended

the May 15 deadline for switching permit categories for calendar year

1997 until the remaining regulatory issues which could influence

category selection were resolved and a new deadline set. Final quotas

were published on June 30, 1997 (62 FR 35107) and the spotter aircraft

issue is addressed by this final rule. As there are no remaining

regulatory issues to be resolved that would influence category

selection, vessel owners now have sufficient information to select an

appropriate permit category for 1997. The deadline for switching permit

categories for calendar year 1997 is set as July 28, 1997. After 1997,

the deadline will revert to May 15.

Relation to Proposed Consolidation

The regulatory amendments contained in this final rule, when

proposed, were drafted to be consistent with a proposed rule to

consolidate all of the regulations for Atlantic highly migratory

species (HMS) fisheries, published on November 6, 1996 (61 FR 57361).

The proposed consolidation would group all regulations pertaining to

Atlantic HMS under 50 CFR part 630. The final consolidated regulations

have not yet been issued. Accordingly, the regulatory amendments

contained in this final rule were revised to make the appropriate

changes to the existing text at 50 CFR part 285. The regulatory

amendments contained in this final rule will eventually be incorporated

into the final consolidated regulations at 50 CFR part 630. Copies of

the proposed consolidation rule may be obtained by writing (see

ADDRESSES) or calling the contact person (see FOR FURTHER INFORMATION

CONTACT).

Spotter Aircraft Prohibition

Since the mid-1980's, fishery participants have raised concerns

that the use of spotter aircraft in the ABT fishery accelerates catch

rates and compromises conservation, equal opportunity and safety. In

1996, a voluntary agreement was signed by the majority of active tuna

aircraft spotters that would limit their activity in the General

category to harpoon vessels. NMFS recognized that the voluntary

agreement warranted a trial period but also indicated that the agency

would continue to monitor the situation and would take appropriate

action if necessary. Fishery management concerns continue to be

expressed, anecdotal information suggests that the number of spotter

aircraft has increased, and vessel safety issues continue to be raised.

Accordingly, NMFS has reconsidered the need to take action. By this

final rule, the use of aircraft to assist fishing vessel operators in

the location and capture of ABT, with the exception of vessels

operating in the Harpoon and Purse Seine categories, is prohibited.

These regulatory changes will improve NMFS' ability to achieve domestic

management objectives for the Atlantic tuna fisheries.

Comments and Responses

NMFS conducted several public hearings on the proposed rule and

received written and oral comments over a 30-day comment period. Nearly

two thousand comments (letters and comments) were received regarding

the proposed ban on spotter aircraft. Responses to the comments on the

spotter aircraft issue are provided below.

Comment: Those in favor of the prohibition commented that it would

restore equal opportunity for vessels of different categories and

lengthen the Harpoon and General category seasons without the use of

further effort controls.

Response: Although data on the use and effects of spotter aircraft

on the ABT fishery are not sufficient for a quantitative analysis of

impacts, it is undeniable that there is a decrease in search time when

spotter aircraft are used. Data regarding recent closures in the

General and Harpoon categories support the conclusion that seasons are

shortened. The International Commission for the Conservation of

Atlantic Tunas (ICCAT) has recognized the effect of spotter aircraft on

catch rates; in 1996, ICCAT adopted a recommendation that the use of

spotter aircraft by purse seine vessels in the Mediterranean be

prohibited due to the aircrafts' effect of accelerating catch rates.

NMFS agrees that the use of spotter aircraft accelerates catch rates.

Accelerated catch rates are inconsistent with the regulatory goal of

extending the ABT season for the General and Angling categories, and

with actions taken this year and in previous years to accomplish that

goal. Extending the season for the rod-and-reel fisheries in these two

categories helps improve scientific monitoring of the stock by allowing

catch-per-unit-effort (CPUE) data collection over a wider geographical

area and a longer period of time. Extending the season also provides

fishing opportunities over a wider area. Data from the Harpoon and

Purse Seine categories have not been

[[Page 38486]]

incorporated into any of the currently usable CPUE indices, therefore

the effect of spotter aircraft accelerating catch rates in these

categories is less significant for scientific monitoring.

Comment: Some commenters questioned why the Purse Seine category is

exempted from the prohibition on the use aircraft to locate and capture

ABT.

Response: The purse seine fishery in the United States is managed

under an individual vessel quota program; therefore, the Purse Seine

category allocation cannot be exceeded. It is within each vessel's

discretion to use aircraft that may have the effect of accelerating

catch rates by assisting in locating schools of large fish. The Purse

Seine category does not provide CPUE data for stock assessment.

Likewise, Harpoon category CPUE data are not currently used to assess

the ABT stock. The harpoon fishery is managed under a quota program

which is monitored on a real-time basis through landing cards.

Accordingly, accelerated catch rates would not likely cause the quota

to be exceeded.

Comment: Some constituents indicated that spotter aircraft aid in

aerial surveys and enforcement, and in the provision of emergency

assistance for boats and marine mammals. Constituents argued that a ban

would affect stock assessments, potentially increase undersized

discards and mortality, and be impossible to enforce. Some argued that

the use of aircraft is historical and should be considered as another

type of fishing gear. Others noted that the banning of spotter aircraft

would compromise the safety of vessels at sea.

Response: NMFS will continue to work with spotter pilots, industry

members and organizations, and scientific researchers to develop an

aerial index of abundance that can be used in stock assessments. The

comments on the effects of a spotter aircraft ban with respect to the

harpoon fishery are noted. Exempting the Harpoon category preserves the

status quo for that category. Regarding enforcement, there is a

commitment by industry members to work with NMFS enforcement by

providing information on potential violations of fishery regulations.

NMFS enforcement agents are special investigators and have been trained

to collect the necessary evidence to build a successful case.

Information suggests near collisions of spotter aircraft due to

multiple aircraft flying at low altitude, and near collisions of

fishing vessels due to aircraft attracting too many vessels to the same

area.

Comment: Some General and Harpoon category permit holders expressed

concern that NMFS would not decide the spotter aircraft issue until

after May 15, the last day to change categories.

Response: Given the significance of spotter aircraft use in making

a permit category selection, NMFS extended indefinitely the deadline

for category selection for 1997 (62 FR 27518, May 20, 1997). With the

publication of this final rule, NMFS establishes a deadline for

selecting a permit category in 1997 of July 28, 1997.

Comment: Comments were received noting that the proposed ban on

spotter aircraft would have a significant impact on a substantial

number of small entities in that 83 percent of the fish spotters would

be forced out of business.

Response: These commenters submitted no data to NMFS which would

justify this claim. The greater part of the spotter aircraft activity

currently occurs in the Purse Seine and Harpoon categories. By

exempting these two categories from the prohibition on the use of

spotter aircraft, the impact of the prohibition on aerial fish spotters

is substantially lessened.

Further, the aerial fish spotting business is only a small portion

of the small business aviation sector. While some spotter pilots will

likely suffer revenue losses, no evidence is available to NMFS that the

majority of small aviation businesses derive all or most of their

income from services provided to ABT fishing vessels.

Comment: The proposed rule would have a significant economic impact

on a substantial number of small entities within the meaning of the

Regulatory Flexibility Act and NMFS should prepare a Regulatory

Flexibility Analysis.

Response: See discussion of Regulatory Flexibility Act in the

Classification section below.

Changes from the Proposed Rule

For the reasons stated above, NMFS exempts Harpoon category vessels

from the prohibition on spotter aircraft use. Other than that

exemption, the final rule remains as proposed. All measures in the

proposed rule, except for the prohibition on the use of aircraft, were

addressed in an earlier final rule (62 FR 30741, June 5, 1997).

Additionally, NMFS issued an interim final rule that suspended the May

15 deadline for switching permit categories for calendar year 1997

until the remaining regulatory issues which could influence category

selection were resolved and a new deadline set. Final quotas were

published on June 30, 1997 (62 FR 35107) and the spotter aircraft issue

is addressed by this final rule. As there are no remaining regulatory

issues to be resolved that would influence category selection, vessel

owners now have sufficient information to select an appropriate permit

category for 1997. The deadline for switching permit categories for

calendar year 1997 is set as July 28, 1997.

Classification

This rule is published under the authority of ATCA, 16 U.S.C. 971

et seq. The Assistant Administrator has determined that the regulations

in this final rule are necessary for management of the Atlantic tuna

fisheries.

NMFS prepared an EA for this final rule with a finding of no

significant impact on the human environment. In addition, an RIR was

prepared with a finding of no significant impact.

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration that the proposed rule, if adopted,

would not have a significant economic impact on a substantial number of

small entities, therefore no Regulatory Flexibility Analysis was

prepared. That certification covered not only the proposed spotter

aircraft prohibition, but the other provisions of the rule published in

an earlier final rule (62 FR 30741, June 5, 1997).

During the comment period, NMFS received comments from the public

that the proposal to ban the use of spotter aircraft in all but the

Purse Seine category exceeded the threshold for significant impact on a

substantial number of small entities. The aerial fish spotting business

is only a small portion (less than 2 percent) of the small businesses

in the ABT fishing sector, and for that matter, the aerial fish

spotting business is only a very small portion of the small business

aviation sector. While there may be some loss of revenue to small

aircraft businesses that engage in fish spotting activities, no

evidence is available to NMFS that the majority of revenues to these

businesses is from ABT fish spotting. Further, the greater part of the

spotter aircraft activity currently occurs in the Purse Seine and

Harpoon categories. By exempting these two categories from the

prohibition on the use of spotter aircraft, the impact of the

prohibition on aerial fish spotters is substantially lessened.

Accordingly, there is no basis to change the conclusion of that the

spotter aircraft prohibition provision of the rule will not have a

significant economic impact on a substantial number of

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businesses. Thus, a Final Regulatory Flexibility Analysis was not

prepared.

This final rule has been determined to be not significant for

purposes of E.O. 12866.

The AA has determined that there is good cause to waive partially

the 30-day delay in the effective date normally required by 5 U.S.C.

Sec. 553(d). The fishery is currently underway and further delay in

implementing the prohibition on the use of spotter aircraft in

assisting ABT vessels in other than the Harpoon and Purse Seine

categories would be contrary to the public interest by reducing the

likelihood of achieving the desired effects of this rule. The desired

effects of the rule are to extend the season to provide improved

scientific monitoring and fishing opportunities for the rod-and-reel

fisheries. Further, providing a 30-day delay in the effective date is

unnecessary since the only act necessary to come into compliance with

the prohibition is to cease ABT aircraft spotting activity. Therefore

the ban is effective July 14, 1997. A two-week period for changing

permit categories is necessary for vessel operators to gather relevant

information, decide on the appropriate category, and submit an

application for the category change. Given NMFS' ability to rapidly

communicate these rule changes to fishing interests through the FAX

network and NOAA weather radio, NMFS feels it is sufficient to

implement the spotter aircraft prohibition immediately and allow

fourteen days in which to make requests for permit category changes.

List of Subjects in 50 CFR Part 285

Fisheries, Fishing, Penalties, Reporting and recordkeeping

requirements, Treaties.

Dated: July 14, 1997.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble 50 CFR part 285 is amended

as follows:

PART 285--ATLANTIC TUNA FISHERIES

1. The authority citation for part 285 continues to read as

follows:

Authority: 16 U.S.C. 971 et seq.

2. In Sec. 285.2, definition for ``Aircraft'' is added to read as

follows:

Sec. 285.2 Definitions.

* * * * *

Aircraft means any contrivance used for flight in air.

* * * * *

3. In Sec. 285.21, paragraph (b)(7) is revised to read as follows:

Sec. 285.21 Vessel Permits.

* * * * *

(b) * * *

(7) Except for purse seine vessels for which a permit has been

issued under this section, an owner may change the category of the

vessels's Atlantic tunas permit to another category by application on

the appropriate form to NMFS or by dialing 1-888-USA-TUNA before the

specified deadline. After the deadline, the vessel's permit category

may not be changed to another category for the remainder of the

calendar year, regardless of any change in the vessel's ownership. For

1997, the deadline is July 28, 1997. In years after 1997, the deadline

for category changes is May 15.

* * * * *

4. In Sec. 285.31, paragraph (a)(40) is added to read as follows:

Sec. 285.31 Prohibitions.

* * * * *

(a) * * *

(40) Fish for, catch, possess or retain, or attempt to fish for,

catch, possess or retain Atlantic bluefin tuna by means, aid, or use of

any aircraft, unless holding a valid permit in the Harpoon or Purse

Seine category under Sec. 285.21.

* * * * *

5. In Sec. 285.33, the heading is revised, the existing paragraph

is designated as paragraph (a), and paragraph (b) is added to read as

follows:

Sec. 285.33 Gear restrictions.

* * * * *

(b) Aircraft. Other than for a vessel holding a valid permit in the

Harpoon or Purse Seine category under Sec. 285.21(a), locating, fishing

for, catching, taking, retaining or possessing ABT by means, aid, or

use of any aircraft is prohibited.

[FR Doc. 97-18912 Filed 7-14-97; 4:13 pm]

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