Atlantic Highly Migratory Species (HMS) Fishing Vessel Permits; Charter Boat Operations

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final rule.

SUMMARY:

Under the framework provisions of the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP), NMFS amends the consolidated regulations governing the Atlantic HMS fisheries to define operations and regulations for HMS Charter/Headboats (CHBs), require an Atlantic HMS recreational permit, adjust the time frame for permit category changes for Atlantic HMS and Atlantic tunas permits, clarify the regulations regarding the retention of Atlantic bluefin tuna (BFT) in the Gulf of Mexico by recreational and HMS CHB vessels, and allow NMFS to set differential BFT retention limits by vessel type (e.g., charter boats, headboats).

DATES:

Effective March 1, 2003.

ADDRESSES:

Copies of supporting documents, including the HMS FMP, are available from the Highly Migratory Species Management Division, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. The supporting documents will also be posted on the e-Comments Web site listed under http://www.nmfs.noaa.gov and the HMS Web site http://www.nmfs.noaa.gov/sfa/hmspg.html . Comments on the burden-hour estimates or other aspects of the collection of information that are part of this rulemaking can be submitted to NMFS, but must also be mailed to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC 20503 (Attention: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT:

Brad McHale at (978) 281-9260.

SUPPLEMENTARY INFORMATION:

Atlantic tunas, swordfish, and billfish are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act (ATCA). ATCA authorizes the Secretary of Commerce (Secretary) to implement binding recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT). The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary to the Assistant Administrator (AA) for Fisheries, NOAA. Sharks are managed solely under the authority of the Magnuson-Stevens Act.

Background

Background information about the need for revisions to the HMS regulations was provided in the preamble to the proposed rule (67 FR 20716, April 26, 2002), and is not repeated here. By this final rule, NMFS defines operations and regulations for HMS CHBs; requires an Atlantic HMS recreational permit; adjusts the time frame for permit category changes for Atlantic HMS and Atlantic tunas permits; and clarifies the regulations regarding the retention of BFT in the Gulf of Mexico by recreational and HMS CHB vessels. This final rule also amends the regulatory text to clarify the authority to set differential BFT retention limits by vessel type (e.g., charter boats, headboats) which was restated less clearly when the HMS regulations were consolidated under 50 CFR part 635 (64 FR 29090, May 28, 1999).

Changes from the Proposed Rule

This final rule changes some of the proposed revisions to the regulatory text and some paragraphs have been consolidated. In § 635.4, several proposed revisions to paragraphs (b) and (d) have been revised, the references to certain other permit requirements in the proposed revisions to paragraphs (b) and (d) have been consolidated into paragraph (a), and paragraph (c) has been added. These changes were made to clarify the intent of the regulatory text, to reduce duplication and to facilitate enforcement of the regulations.

Comments and Responses

NMFS conducted three public hearings on the proposed rule and received written, oral, and electronic comments (through the NMFS e-Comments pilot project website at http://www.nmfs.noaa.gov ) over a 30-day comment period. The majority of the comments were in support of the proposed actions. Responses to specific comments on the issues contained in the proposed rule are provided here.

Comment 1: NMFS has received comments stating that applying the recreational yellowfin tuna (YFT) retention limit to HMS CHB vessels at all times precludes legitimate commercial activity when the vessels are not carrying fee-paying anglers. Commenters have also indicated that some HMS CHB vessels have historically conducted commercial fishing trips for YFT when not operating as a for-hire vessel. Some commenters stated that the HMS FMP did not specifically address commercial fishing by the for-hire fleet and the impacts of prohibiting such commercial fishing on this segment of the fishery. Other commenters stated that HMS CHB vessels should not have the ability to land as many YFT as they can on commercial vessels because the stock is currently defined as fully exploited and an increase in fishing mortality could have adverse effects.

Response: NMFS agrees that applying the recreational YFT retention limit to HMS CHB vessels at all times precludes legitimate commercial activity when the vessels are not carrying fee-paying passengers. The HMS CHB permit is considered a commercial tuna permit in that tunas caught by vessels possessing the permit may be sold. Prior to July 1, 1999, CHB vessels had the ability to retain and sell all YFT that were caught, as long as they met the minimum size requirements. In 2000, commercial handgear landings of YFT totaled 283.7 metric tons (mt), amounting to approximately 4 percent of total U.S. YFT landings, or 9 percent of all commercial landings. Dealer weighout data reported to NMFS included 839 handgear trips that sold YFT from 1998 through 2000, and about 10 percent of these trips were reported by CHBs. Thus, although commercial YFT landings by CHB vessels may be significant to individual vessel operators, they represent less than 1 percent of total U.S. YFT landings.

NMFS has determined that allowing HMS CHB vessels to retain YFT under the commercial limits when not engaged in for-hire activities would not adversely affect the YFT stock. NMFS recognizes the dual nature of the operations of certain vessels issued the HMS CHB permit. Thus, the final rule defines for-hire fishing in a way that would allow such vessels to fish under commercial limits when not engaged in for-hire fishing. The definition of for-hire fishing is similar to that used in other U.S. fisheries operating in the Caribbean, Gulf of Mexico, and South Atlantic. For those vessels that engage in both for-hire and commercial fishing, the impact of this action is positive, as it clarifies the requirements to allow them to participate in both types of fisheries.

Comment 2: Many comments stated that requiring recreational permits for all HMS vessels is long over due. They noted that issuing an HMS Angling category permit will provide critical data by which to accurately assess the status of the Atlantic HMS fishery in the recreational sector. Other commenters stated that this permit requirement will even the playing field and protect the rights of both commercial and recreational fishermen. NMFS also received comments stating that it is essential to know the universe of participants and the total effort that is involved in the recreational sector of HMS fisheries. It was stated that the permits could be used to further our scientific understanding of these HMS. The comment stated that the permit should be merged with the current Atlantic tunas Angling category permit to reduce the burden on the recreational sector. NMFS also received a comment stating that there are other methods of identifying the universe of recreational HMS fishermen, such as coordinating with the states, which would relieve the public of the burden of having to renew the Federal permit on an annual basis.

Response: The HMS recreational permit will enable NMFS to more accurately monitor recreational landings and generate catch and release statistics for all recreational HMS, thereby enhancing HMS management and research efforts. Knowledge of the universe of recreational fishermen and of total fishing effort, catch, and bycatch is incomplete at present, with most data collection currently focused on the Atlantic tunas fisheries. Estimates of some of these parameters are currently made using survey instruments, such as the Large Pelagic Survey (LPS) and the Marine Recreational Fisheries Statistics Survey (MRFSS), as well as reporting from registered tournaments. The current Atlantic tunas angling category permit will be replaced with an Atlantic HMS recreational permit system, which will greatly improve information available to NMFS regarding the recreational Atlantic HMS fisheries by providing an accurate measure of participation, which will improve estimates of effort, catch, and bycatch (including discards) for several important species.

Comment 3: NMFS received a number of comments stating that, due to the nature of the HMS fisheries, effective management is essential throughout the entire range of the regulated species. These commenters agreed that NMFS must exercise jurisdiction over U.S.-flagged vessels regardless of where a vessel is fishing.

Response: NMFS recognizes that state-federal jurisdictional issues are complex. NMFS will work with the individual states to evaluate how permit conditions applied to recreational vessels issued Federal permits may resolve jurisdictional concerns. Upon completing discussions with the states, NMFS may address this issue in a separate rulemaking.

Comment 4: Many comments stated that the different retention limits for inspected headboats are justifiable provided that there is a maximum retention limit placed upon the vessel.

Response: With the BFT retention limits generally defined in terms of the number of fish that can be retained per vessel, a maximum retention limit can be inequitable for U.S. Coast Guard (USCG) inspected vessels authorized to carry a larger number of passengers. This action clarifies the HMS regulations for setting differential retention limits by vessel type (e.g., charter boat vs. headboat).

Comment 5: Several comments stated that the E-comments system is a step in the right direction in providing the public with efficient means to submit comments, and in allowing NMFS to take more stakeholders' insights into account when making final rules. Some commenters also stated that having the ability to see previously submitted comments enhances their understanding of the proposed changes and the potential impacts.

Response: NMFS' E-comments pilot project was a success. NMFS will expand the use of this system and will continue to explore ways to use technology to enhance the public's ability to learn about and participate in NMFS rulemaking activities.

Comment 6: Some commenters stated that the HMS CHB recreational trip definition should be coordinated with the regional fishery management councils, NMFS law enforcement, and USCG to minimize the confusion and complexity with different definitions in different fisheries.

Response: NMFS coordinated with other management bodies and enforcement agencies to develop a recreational trip definition for HMS CHB vessels. This issue was discussed at length during the 2001 Advisory Panel (AP) meeting, and there was general consensus among the AP members that defining a charter trip in a manner similar to that used in the NMFS Southeast Region regulations (based on paying passengers aboard and/or the number of persons aboard, with three people or less on board constituting a “commercial” trip and more than three on board constituting a “charter” trip) is appropriate for HMS, especially regarding the YFT bag limit issue.

Comment 7: A few comments received stated that it is unacceptable to charge every fishermen $27.00 per year for the use of the HMS resources. These commenters felt that the fee was a means of generating funds for the Federal government and that NMFS could establish a permit program and obtain the same information without charging a fee. Other commenters stated that the fee is reasonable.

Response: Under the Magnuson-Stevens Act, NMFS is authorized to charge fees for permits to participants in fisheries conducted in the U.S. exclusive economic zone. Administrative costs recovery is a NOAA policy, and the fee is calculated annually to recover the costs attributable to the automated permit and reporting system. Under current law, these funds cannot be directly applied to NMFS' programs, but must be deposited into the General Fund of the United States Treasury.

Classification

These regulatory amendments are published under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. and the Atlantic Tunas Convention Act, 16 U.S.C. 971 et seq. The Assistant Administrator (AA) for Fisheries, NOAA, has determined that the regulations contained in this final rule are necessary to implement the recommendations of ICCAT and for the management of the Atlantic HMS fisheries.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) at the proposed rule stage that, if implemented, this final rule would not have a significant economic impact on a substantial number of small entities. No comments were received that would alter the basis for this determination. However, as noted above, a few of the comments received expressed concern about charging a fee for the use of the HMS resources. These commenters felt that the permit fee was a means to generate funds for the Federal government and that NMFS could establish a permit program without charging a fee. However, under the Magnuson-Stevens Act, NMFS is authorized to charge fees for permits issued to participants in fisheries conducted in the U.S. exclusive economic zone. Further, administrative cost recovery is NOAA's policy, and the minimal fee (currently $27 per year) is calculated annually to recover the costs attributable to the automated permit and reporting system. Under current law, these funds cannot be directly applied to NMFS' programs, but must be deposited into the General Fund of the United States Treasury. Given the prior certification to SBA, neither an Initial nor a Final Regulatory Flexibility Analysis was prepared.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS prepared an Environmental Assessment (EA) for this final rule, and the AA has concluded that there would be no significant impact on the human environment. The EA presents analyses of the anticipated impacts of these final actions and the other alternatives considered. A copy of the EA and other analytical documents prepared for this final rule are available from NMFS (see ADDRESSES).

The regulations implemented through this final rule are not expected to increase endangered species or marine mammal interaction rates. On September 7, 2000, NMFS reinitiated formal consultation for all HMS commercial fisheries under section 7 of the Endangered Species Act. A Biological Opinion (BiOp) issued June 14, 2001, concluded that continued operation of the Atlantic pelagic longline fishery is likely to jeopardize the continued existence of endangered and threatened sea turtle species under NMFS jurisdiction. On July 9, 2002 (67 FR 45393), NMFS implemented the reasonable and prudent alternative required by the BiOp. None of the actions in this final rule would have any additional impact on sea turtles as these actions would not likely increase or decrease pelagic longline effort, nor are they expected to shift effort into other fishing areas. No irreversible or irretrievable commitments of resources are expected from the final actions that would adversely affect the implementation of the requirements of the BiOp.

The areas affected by these final actions have been identified as essential fish habitat (EFH) for species managed by the New England Fishery Management Council, the Mid-Atlantic Fishery Management Council, the South Atlantic Fishery Management Council, the Gulf of Mexico Fishery Management Council, the Caribbean Fishery Management Council, and the HMS Management Division of NMFS. It is not anticipated that the actions will have any adverse impacts on EFH; therefore, no consultation is required.

This final rule contains two new collection-of-information requirements and restates several existing reporting requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). The first new collection of information is approved under OMB Control Number 0648-0327 and is an extension of the Atlantic tunas recreational Angling category permit requirement to include fishermen who fish for all Atlantic HMS, including swordfish, sharks, and billfish, with an estimated public reporting burden of 30 minutes per response for initial permit applications and 6 minutes per response for renewing the permit. The second collection is approved under OMB Control Number 0648-0373 and extends gear-marking requirements to persons acquiring this permit who were not previously subject to a permit requirement, with an estimated response time of 15 minutes per float. This final rule also restates a number of collection-of-information requirements that OMB has previously approved. These requirements and their OMB control numbers and estimated response times are: vessel permits for Atlantic tunas and Atlantic HMS Charter/headboats, initial (30 minutes; 0648-0327) and renewal (6 minutes; 0648-327); vessel permits for Atlantic shark and swordfish (20 minutes; 0648-0205); dealer permits for Atlantic sharks and swordfish (5 minutes; 0648-0205); call in recreational landing reports for Atlantic bluefin tuna (5 minutes; 0648-0328); dealer permits for Atlantic tunas (5 minutes; 0648-0202); gear marking (15 minutes; 0648-0373); and vessel marking (45 minutes; 0648-0373).

All estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES).

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to, a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

List of Subjects in 50 CFR Part 635

• Fisheries
• Fishing
• Fishing vessels
• Foreign relations
• Intergovernmental relations
• Penalties
• Reporting and record keeping requirements
• Statistics
• Treaties

For the reasons set out in the preamble, 50 CFR part 635, is amended as follows:

PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES

1. The authority citation for part 635 continues to read as follows:

Authority: Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

2. In § 635.2, the definition for “For-hire trip” is added, in alphabetical order, to read as follows:

3. In § 635.4, paragraphs (a)(1), (a)(2), (a)(5), (b), (d)(1) through (d)(3), (h)(1) introductory text, and (m)(1) are revised, and paragraph (c) is added to read as follows:

4. In § 635.5, the first sentence of paragraph (c) is revised to read as follows:

5. In § 635.6, paragraph (b)(1) introductory text and the first sentence of paragraph (c)(1) are revised to read as follows:

6. In § 635.22, paragraphs (a), (c), and (d) are revised to read as follows:

7. In § 635.23, paragraphs (b) introductory text, (b)(2), (b)(3), (c) introductory text, and (c)(3) are revised to read as follows:

8. In § 635.27, the first three sentences of paragraph (a) introductory text, the first two sentences of paragraph (a)(1)(i) introductory text, and the first sentence of paragraph (a)(2) introductory text are revised to read as follows:

9. In § 635.28, paragraph (b)(3) is revised to read as follows:

10. In § 635.31, paragraph (a)(1) is revised to read as follows:

11. In § 635.71, paragraphs (b)(1), (b)(3), (b)(14), and (b)(15), are revised to read as follows: