Daily Rules, Proposed Rules, and Notices of the Federal Government
Atlantic tunas are managed under the dual authority of the Magnuson-Stevens Act and ATCA. ATCA authorizes the Secretary of Commerce (Secretary) to promulgate regulations, as may be necessary and appropriate, to implement ICCAT recommendations. The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary to the Assistant Administrator for Fisheries, NOAA (AA).
Background information about the need for the 2010 BFT quota specifications was provided in the preamble to the proposed rule (74 FR 63095, December 2, 2009), and is not repeated here.
Consistent with NMFS' implementation of the 2009 BFT Quota Specifications, NMFS establishes the 2010 U.S. baseline quota at the ICCAT-recommended level and carries over the full amount of available BFT underharvest allowed by ICCAT from 2009 to 2010, and distributes that underharvest to: (1) provide the Longline category sufficient quota to operate during 2010 after the required accounting for BFT dead discards; (2) maintain up to 15 percent of the 2010 U.S. quota in Reserve for potential transfer to other ICCAT contracting parties and other domestic management objectives, if warranted; and (3) provide the non-Longline quota categories a share of the remainder of the underharvest consistent with the allocation scheme established in the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (Consolidated HMS FMP).
When NMFS prepared the proposed rule, landings information was incomplete, and NMFS anticipated the full amount of 2009 underharvest allowed under the 2008 ICCAT recommendation for the western Atlantic bluefin tuna stock (ICCAT Recommendation 08-04), i.e., 50 percent of the U.S. quota, or 488.7 mt, would be available and carried forward to 2010. NMFS indicated that
Consistent with the proposed rule, NMFS is applying 170.7 mt of the total underharvest to the pelagic longline fishery in anticipation of both landings and projected discards. This is intended to allow the fishery to operate for the entire 2010 fishing year, i.e., to avoid potential closure of the pelagic longline fishery prior to the end of the year while the fleet is conducting directed operations for swordfish and other Atlantic tunas. NMFS is placing 46.5 mt of 2009 underharvest in the Reserve and is distributing the remainder of the quota carryover (171.4 mt) to the Angling, General, Harpoon, Purse Seine, and Trap categories, consistent with the allocation percentage shares in the Consolidated HMS FMP. The amount NMFS is placing in the Reserve is 100.1 mt less than was proposed. This change allows NMFS to maintain the proposed amounts of underharvest to be allocated to the Longline fishery and to the directed fishing categories for 2010, as well as their respective adjusted quotas. Because the Reserve is not a specific fishing category, but rather serves as a pool from which NMFS may allocate quota for inseason or annual adjustments to any category quota in the BFT fishery, the smaller amount of Reserve in this final rule would have no direct impact on any particular fishing category.
As described in the Comments and Responses section below, following requests for information regarding the start date of the Harpoon category fishery, NMFS clarifies in the regulatory text of this action the dates on which the Harpoon category commences and the Purse Seine fishery closes, consistent with existing NMFS guidance and publications, including the Consolidated HMS FMP.
In accordance with ICCAT Recommendation 08-04, the Consolidated HMS FMP percentage shares for each of the domestic categories, and regulations regarding annual adjustments at § 635.27(a)(10), NMFS establishes final 2010 quota specifications as follows (as shown in the table below): General category - 538.9 mt; Harpoon category - 44.6 mt; Purse Seine category - 212.8 mt; Angling category - 225.4 mt; Longline category - 75 mt; and Trap category - 1.1 mt. A total of 70.3 mt (46.5 mt of 2009 underharvest plus the Consolidated HMS FMP quota share of 23.8 mt) would be allocated to the Reserve category for inseason adjustments, scientific research collection, potential overharvest in any category except the Purse Seine category, and potential quota transfers.
The General category quota of 538.9 mt is subdivided as follows: 28.6 mt for the period beginning January 1, 2010, and ending January 31, 2010; 269.4 mt for the period beginning June 1, 2010, and ending August 31, 2010; 142.8 mt for the period beginning September 1, 2010, and ending September 30, 2010; 70.1 mt for the period beginning October 1, 2010, and ending November 30, 2010; and 28 mt for the period beginning December 1, 2010, and ending December 31, 2010.
The Angling category quota of 225.4 mt is subdivided as follows: School BFT - 97.7 mt, with 37.6 mt to the northern area (north of 39°18' N. latitude), 42.1 mt to the southern area (south of 39°18' N. latitude), plus 18.1 mt held in reserve; large school/small medium BFT - 122.5 mt, with 57.8 mt to the northern area and 64.7 mt to the southern area; and large medium/giant BFT - 5.2 mt, with 1.7 mt to the northern area and 3.5 mt to the southern area.
The 25-mt Northeast Distant gear restricted area (NED) set-aside quota is in addition to the overall incidental longline quota, to be subdivided in accordance with the North/South allocation percentages (i.e., no more than 60 percent to the south of 31° N. latitude). NMFS accounts for landings under the 25-mt NED allocation separately from other Longline category landings. Thus, the Longline category quota of 75 mt is subdivided as follows: 30 mt to pelagic longline vessels landing BFT north of 31° N. latitude, and 45 mt to pelagic longline vessels landing BFT south of 31° N. latitude.
Below, NMFS summarizes and responds to all comments made specifically on the proposed quota specifications. In addition, NMFS received comments on issues that were not considered part of this rulemaking, as described below.
Although NMFS also may adjust recreational effort controls inseason based on the best information available, landings data generally are not available until the end of the calendar year. Using the data sets above along with retrospective analysis, NMFS is able to estimate approximate landings following the end of the year, and make adjustments to recreational daily retention limits for the upcoming year to maintain overall landings within the ICCAT-recommended quotas.
However, in November 2009, NMFS published a proposed rule that, if finalized, could, among other things, allow the General category season to remain open past January 31 until the entire subquota is utilized (74 FR 57128, November 4, 2009). This proposed action was initiated with the intent to more thoroughly utilize available U.S. BFT quota and, in particular, extend fishing opportunities beyond the end of January, if quota is still available. The comment period for this proposed rule was extended through March 31, 2010.
Distribution of the available underharvest solely to the directed fishing categories potentially could result in a closure of the pelagic longline fishery prior to the end of the year, while the longline fleet is conducting directed operations for swordfish and other Atlantic tunas. NMFS acknowledges that high landings and discards are a growing issue for the pelagic longline fleet given the limited quota for incidental retention of BFT, and continues to work with stakeholders and the HMS AP to more fully understand the scope of the problem and possible solutions.
Some of the Gloucester public hearing participants sought clarification of the Harpoon category fishery start date, and some requested that NMFS allow General and Harpoon category fishing to commence May 1 rather than June 1, particularly given recent underharvests of those categories.
A few industry representatives request that the U.S. delegation to ICCAT renegotiate the amount that western Atlantic ICCAT contracting parties may carry forward to the next year (from 10 percent to at least 25 percent), as U.S. landings are variable from year to year and may increase as a result of eastern Atlantic and Mediterranean TAC reductions and mixing.
In considering any change to the ICCAT recommendation on allowed carryforward of underharvest, NMFS must consider carefully the potential effects on the stock rebuilding, particularly when they result in potential total catches that are greater than the scientifically recommended TAC.
NMFS publishes this final rule under the authority of the Magnuson-Stevens Act and ATCA. The Assistant Administrator for Fisheries (AA) has determined that the regulations contained in this final rule are necessary to implement the recommendations of ICCAT, and to manage the domestic Atlantic HMS fisheries, and are consistent with the Magnuson-Stevens Act and its National Standards.
This final rule been determined to be not significant for purposes of Executive Order 12866.
In compliance with Section 604 of the Regulatory Flexibility Act (RFA), a Final Regulatory Flexibility Analysis (FRFA) was prepared for this rule. The FRFA revises the Initial Regulatory Flexibility Analysis (IRFA), and analyzes the anticipated economic impacts of the preferred actions and any significant alternatives that could minimize economic impacts on small entities. Each of the statutory requirements of Section 604 of the RFA has been addressed and a summary of the FRFA is below. The full FRFA and analysis of economic and ecological impacts are available from NMFS (see ADDRESSES).
Section 604(a)(1) of the RFA requires the Agency to state the objective of and need for the rule. The objective of this rule is to establish 2010 BFT quotas. This action is needed specifically to implement the 2008 ICCAT BFT recommendation for 2010. The action is also necessary and appropriate pursuant to ATCA, and to achieve domestic management objectives under the Magnuson-Stevens Act, including rebuilding stocks and ending overfishing. Because BFT quotas and allocations are codified in the HMS regulations at § 635.27, a regulatory amendment is required to modify the baseline U.S. quota from 1,009.9 mt (recommended for 2009) to 952.4 mt (recommended for 2010), and the allocations (in mt) to the General, Angling, Harpoon, Purse Seine, Longline, Trap, and Reserve categories, per the percentage allocation shares set forth in the Consolidated HMS FMP.
Section 604(a)(2) of the RFA requires the Agency to summarize significant issues raised by public comments in response to the IRFA, a summary of the Agency's assessment of such issues, and a statement of any changes made as a result of the comments. NMFS did not
Section 604(a)(3) of the RFA requires the Agency to describe and provide an estimate of the number of small entities to which the rule will apply. The final action could directly affect the approximately 34,000 vessels that held a 2009 Atlantic HMS Charter/Headboat, Atlantic HMS Angling, or an Atlantic tunas permit and will hold one again in 2010. These permitted vessels consist of commercial, recreational, and charter vessels as well as headboats. Of these, 8,318 permit holders (the combined number of commercial category permit holders, including charter/headboat vessels) 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 the Agency to describe the projected reporting, recordkeeping, and other compliance requirements of the final rule, including an estimate of the classes of small entities which would be subject to the requirements of the report or record. None of the alternatives considered for this final rule would result in additional reporting, recordkeeping, and compliance requirements.
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 applicable statutes. Additionally, section 603(c)(1)-(4) of the RFA lists four general categories of “significant” alternatives that would assist an agency in the development of 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.
In order to meet the objectives of this final rule, consistent with the Magnuson-Stevens Act, NMFS cannot exempt small entities or change the reporting requirements only for small entities, because all of the affected businesses (commercial vessel permit holders) are considered small entities. Thus, there are no alternatives discussed that fall under the first and fourth categories described above. In addition, none of the alternatives considered would result in an increase or decrease of reporting requirements for small entities (category two above). NMFS does not know of any performance or design standards that would satisfy the aforementioned objectives of this rulemaking, while concurrently complying with the Magnuson-Stevens Act.
As described below, NMFS analyzed two alternatives in this final rulemaking and justified its selection of the preferred alternative to achieve the desired objective. Specifically, NMFS analyzed a no-action alternative, and a preferred alternative that would implement the 2008 ICCAT recommendation.
NMFS has estimated the average impact that the preferred alternative to establish the 2010 BFT quota for all domestic fishing categories would have on individual permit categories and the vessels within those categories. As mentioned above, the 2008 ICCAT recommendation reduces the U.S. BFT quota for 2010 to 977.4 mt. This quota allocation includes 25 mt to account for incidental catch of BFT related to directed longline fisheries in the NED. This action would distribute the adjusted (baseline) quota of 952.4 mt to the domestic fishing categories based on the allocation percentages established in the Consolidated HMS FMP.
In 2009, the annual gross revenues from the commercial BFT fishery were approximately $6.9 million. As described above, 8,318 vessels are permitted to land and sell BFT under four commercial BFT quota categories (including charter/headboat vessels). The commercial categories and their 2009 gross revenues are General ($5,040,772), Harpoon ($498,877), Purse Seine ($149,934), and Longline ($1,247,600). The FRFA assumes that each vessel within a category would have similar catch and gross revenues, to show the relative impact of the proposed action on vessels.
In its analysis of alternatives, NMFS found that implementation of the preferred alternative would be in accordance with the Consolidated HMS FMP and consistent with ATCA, under which the United States is obligated to implement ICCAT-approved quota recommendations as necessary and appropriate. The preferred alternative would implement this quota, and have slightly positive impacts for fishermen in the long-run as the stock rebuilds. The no-action alternative would keep the quota at the 2009 levels (approximately 58 mt more), and would be inconsistent with the purpose and need for this action as well as the Consolidated HMS FMP. It would retain economic impacts to the United States and to local economies at a distribution and scale similar to 2009, or recent prior years, and would provide fishermen additional fishing opportunities, subject to the availability of BFT to the fishery, in the short term. In the long term, however, as stock rebuilding is delayed, negative impacts would result.
It is difficult to estimate average potential ex-vessel revenues to commercial participants, largely because revenues depend heavily on the availability of large medium and giant BFT to the fishery. Section 4 of the Supplemental Environmental Assessment, Regulatory Impact Review, and Final Regulatory Flexibility Analysis describes potential revenue losses per commercial quota category, based on each category's proposed base quota reduction and price-per-pound information from 2009. This was found to be $454,059 for the General category, $27,888 for the Harpoon category, $46,420 for the Longline category, $0 for the Trap category, and $139,278 for the Purse Seine category. Because the directed commercial categories have underharvested their subquotas in recent years, the potential decreases in ex-vessel revenues above overestimate the probable economic impacts to those categories relative to recent conditions. Additionally, there has been substantial interannual variability in ex-vessel revenues per category in recent years due to recent changes in BFT availability and other factors. Generally, the interannual differences in ex-vessel revenues per category have been larger than the potential impacts described above.
Data on net revenues of individual fishermen are lacking, so the economic impact of the alternatives is averaged across each category. NMFS considers this a reasonable approach for BFT fisheries, in particular because available landings data (weight and ex-vessel value of the fish in price/pound) allow NMFS to calculate the gross revenue earned by a fishery participant on a successful trip. The available data do not, however, allow NMFS to calculate the effort and cost associated with each successful trip (e.g., the cost of gas, bait, ice, etc.), so net revenue for each participant cannot be calculated. As a result, NMFS analyzes the average impact of the proposed alternatives among all participants in each category.
Success rates vary widely across participants in each category (due to extent of vessel effort and availability of commercial-sized BFT to participants where they fish), but for the sake of estimating potential revenue loss per vessel, category-wide revenue losses can be divided by the number of permitted vessels in each category. Because HMS
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.
16 U.S.C. 971
(1) * * *
(i) Catches from vessels for which General category Atlantic Tunas permits have been issued, and certain catches from vessels for which an HMS Charter/Headboat permit has been issued, are counted against the General category quota in accordance with § 635.23(c)(3). The amount of large medium and giant BFT that may be caught, retained, possessed, landed, or sold under the General category quota is 47.1 percent (448.6 mt) of the baseline annual U.S. BFT quota, and is apportioned as follows:
(A) January 1 through January 31 - 5.3 percent (23.8 mt);
(B) June 1 through August 31 - 50 percent (224.3 mt);
(C) September 1 through September 30 - 26.5 percent (118.9 mt);
(D) October 1 through November 30 - 13 percent (58.3 mt); and
(E) December 1 through December 31 - 5.2 percent (23.3 mt).
(2) Angling category quota. In accordance with the framework procedures of the Consolidated HMS FMP, prior to each fishing year, or as early as feasible, NMFS will establish the Angling category daily retention limits. The total amount of BFT that may be caught, retained, possessed, and landed by anglers aboard vessels for which an HMS Angling permit or an HMS Charter/Headboat permit has been issued is 19.7 percent (187.6 mt) of the baseline annual U.S. BFT quota. No more than 2.3 percent (4.3 mt) of the annual Angling category quota may be large medium or giant BFT. In addition, over each 2-consecutive-year period (starting in 2009, inclusive), no more than 10 percent of the annual U.S. BFT quota, inclusive of the allocation specified in paragraph (a)(3) of this section, may be school BFT. The Angling category quota includes the amount of school BFT held in reserve under paragraph (a)(7)(ii) of this section. The size class subquotas for BFT are further subdivided as follows:
(i) After adjustment for the school BFT quota held in reserve (under paragraph (a)(7)(ii) of this section), 52.8 percent (42.1 mt) of the school BFT Angling category quota may be caught, retained, possessed, or landed south of 39°18' N. lat. The remaining school BFT Angling category quota (37.6 mt) may be caught, retained, possessed or landed north of 39°18' N. lat.
(ii) An amount equal to 52.8 percent (45.2 mt) of the large school/small medium BFT Angling category quota may be caught, retained, possessed, or landed south of 39°18' N. lat. The remaining large school/small medium BFT Angling category quota (40.4 mt) may be caught, retained, possessed or landed north of 39°18' N. lat.
(iii) An amount equal to 66.7 percent (2.9 mt) of the large medium and giant BFT Angling category quota may be caught, retained, possessed, or landed south of 39°18' N. lat. The remaining large medium and giant BFT Angling category quota (1.4 mt) may be caught, retained, possessed or landed north of 39°18' N. lat.
(4) * * *
(i) The total amount of large medium and giant BFT that may be caught, retained, possessed, or landed by vessels that possess Purse Seine category Atlantic Tunas permits is 18.6 percent (177.2 mt) of the baseline annual U.S. BFT quota. The directed purse seine fishery for BFT commences on July 15 of each year, unless NMFS takes action to delay the season start date. Based on cumulative and projected landings in other commercial fishing categories, and the potential for gear conflicts on the fishing grounds or market impacts due to oversupply, NMFS may delay the BFT purse seine season start date from July 15 to no later than August 15 by filing an adjustment
(7) * * *
(i) The total amount of BFT that is held in reserve for inseason or annual adjustments and fishery-independent research using quotas or subquotas is 2.5 percent (23.8 mt) of the baseline annual U.S. BFT quota. Consistent with paragraph (a)(8) of this section, NMFS may allocate any portion of this reserve for inseason or annual adjustments to any category quota in the fishery.
(ii) The total amount of school BFT that is held in reserve for inseason or annual adjustments and fishery-independent research is 18.5 percent (18.1 mt) of the total school BFT Angling category quota as described under paragraph (a)(2) of this section. This amount is in addition to the amounts specified in paragraph (a)(7)(i) of this section. Consistent with paragraph (a)(8) of this section, NMFS may allocate any portion of the school BFT Angling category quota held in reserve for inseason or annual adjustments to the Angling category.