Fisheries Off West Coast States; Highly Migratory Species Fisheries; Recreational Fishing Restrictions for Pacific Bluefin Tuna

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

The National Marine Fisheries Service (NMFS) is issuing regulations to modify the existing Pacific bluefin tuna (PBF) Thunnus orientalis recreational daily bag limit in the Exclusive Economic Zone (EEZ) off California, and to establish filleting-at-sea requirements for any tuna species in the U.S. EEZ south of Point Conception, Santa Barbara County, under the Magnuson-Stevens Fishery Conservation and Management Act (MSA). This action is intended to conserve PBF, and is based on a recommendation of the Pacific Fishery Management Council (Council).

DATES:

The final rule is effective July 30, 2015.

ADDRESSES:

Copies of the Regulatory Impact Review (RIR), Environmental Assessment, and other supporting documents are available via the Federal eRulemaking Portal: http://www.regulations.gov,, identified by “NOAA-NMFS-2015-0029”, or contact the Regional Administrator, William W. Stelle, Jr., NMFS West Coast Region, 7600 Sand Point Way NE., Bldg 1, Seattle, WA 98115-0070, or RegionalAdministrator.WCRHMS@noaa.gov.

FOR FURTHER INFORMATION CONTACT:

Craig Heberer, NMFS, 760-431-9440, ext. 303, or Craig.Heberer@noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

On April 21, 2015, NMFS published a proposed rule in the Federal Register (80 FR 22156) that would modify and add regulations at 50 CFR 660.721, to reduce the daily bag limits for sport-caught PBF harvested in the EEZ off the coast of California and to promulgate new at-sea fillet regulations applicable south of Point Conception, Santa Barbara County. The public comment period on the proposed rule was open until May 6, 2015, and NMFS received 976 comments, which are summarized and discussed below. This final rule is intended to reduce fishing mortality and aid in rebuilding the PBF stock, which is overfished and subject to overfishing (78 FR 41033, July 9, 2013), and to satisfy the United States' obligation to reduce catches of PBF by sportfishing vessels in accordance with conservation measures adopted by the Inter-American Tropical Tuna Commission (IATTC). This rule is implemented under the authority of the MSA as a conservation measure recommended by the Council during the 2015-2016 biennial management cycle, as established in the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP) framework provisions for changes to routine management measures.

The proposed rule contains additional background information, including the basis for the new regulations. Additional information on changes since the proposed rule is included below.

Modified Daily Bag Limit Regulations

This final rule reduces the existing bag limit of 10 PBF per day to 2 PBF per day and the maximum multiday possession limit (i.e., for trips of 3 days or more) from 30 PBF to 6 PBF. For fishing trips of less than 3 days, the daily bag limit is multiplied by the number of days fishing to determine the multiday possession limit (e.g., the possession limit for a 1-day trip would be two fish and for a 2-day trip, four fish). The bag limits of this section apply on the basis of each 24-hour period at sea, regardless of the number of trips per day. The final rule does not authorize any person to take and retain more than one daily bag limit of fish during 1 calendar day. The daily bag and multiday possession limits apply to the U.S. EEZ off the coast of California and might be more or less conservative than Mexico's limits. The U.S. recreational limits would not apply to U.S. anglers while in Mexico's waters, but to facilitate enforcement and monitoring, the limits will apply to U.S. vessels in the U.S. EEZ or landing to U.S. ports, regardless of where the fish were harvested.

New At-Sea Filleting Requirements

The regulations establish new requirements for filleting tuna at-sea (i.e., each fish must be cut into six pieces placed in an individual bag so that certain diagnostic characteristics are left intact), which will assist law enforcement personnel in accurately identifying the different tuna species. These requirements apply to tuna species caught south of the line running due west true from Point Conception, Santa Barbara County (34°27′ N. lat.). As defined in 50 CFR 660.702, tuna refers to the following species: Yellowfin, Thunnus albacares; bluefin, T. orientalis; bigeye, T. obesus; albacore, T. alalunga; and skipjack tuna, Katsuwonus pelamis.

Public Comments and Responses

NMFS received 976 written public comments pertaining to the proposed action.

NMFS categorized comments by whether they supported a reduced bag limit and/or establishment of new fillet requirements. Summaries of the comments received and NMFS' responses appear below. Some comments were beyond the scope of this rulemaking and are not addressed here. Nonetheless, those comments are valuable; and NMFS will consider them for future management planning.

Comment 1: Reducing the daily bag limit from 10 PBF per day to 2 PBF per day would result in an 80 percent reduction in catch, which goes beyond the 25-40 percent harvest reduction measure embodied in IATTC Resolution C-14-06.

Response: A reduction of 80 percent in the daily limit (from 10 PBF per day to 2 PBF per day) does not reflect the actual estimated reduction in catch (harvest), which is the metric for rebuilding the stock of PBF in both domestic and international conservation measures. The alternatives analyzed and presented to the Council, including the preferred alternative of 2 PBF per day, were intended to reduce retained recreational catch of PBF compared to the status quo (i.e., 10 PBF per day). The existing 10 fish per day bag limit for PBF was adopted in 2007 and became effective in 2008. California Passenger Fishing Vessel (CPFV) logbook data for the 2008 to 2013 time period, were analyzed to cover the period when the existing 10 fish bag limit has been in effect. On average, a daily bag limit change from 10 to 4 fish would result in a 5 to 10 percent catch reduction; a daily bag limit of 3 fish would equal a 15 percent reduction; a daily bag limit of 2 fish, a 30 percent reduction; and a daily bag limit of 1 fish, a 50 percent reduction.

Comment 2: In lieu of a daily bag limit, NMFS should have considered using quota management, including the use of in-season closures if needed. A catch limit (i.e., a quota) of 208 metric tons should be applied, consistent with IATTC scientific staff recommendations for sportfishing harvest reductions needed to rebuild the PBF stock.

Response: Prior to the IATTC annual meeting in 2014, IATTC scientific staff recommended keeping non-commercial catches in the eastern Pacific Ocean (EPO) below 214 mt based on the same methods, and years, that they used to recommend a commercial limit for the EPO (IATTC-87-03d). IATTC member countries expressed concerns about the appropriateness of these methods for the recreational sector. After additional work, the IATTC scientific staff recommended percentage reductions based on more recent levels of catch, and in lieu of an annual quota. This is reflected in Resolution C-14-06, which states: “Taking into account the IATTC scientific staff's conservation recommendation that a reduction of 20 percent to 45 percent in catches would be beneficial for the stock, provided that these reductions are implemented over the entire range of the stock. . . .” The implementation of a daily bag limit meets the conservation recommendation in Resolution C-14-06 while also allowing U.S. anglers to target PBF throughout the season; a catch limit could result in a retention prohibition on PBF early in the recreational fishing season. This seasonal access is valued by anglers, and also an important component for maintaining the economic viability of sportfishing businesses that depend on fishing throughout the season.

Comment 3: NOAA should have considered a slot size limit (range of allowable harvest by size) to protect younger, pre-spawning PBF and older, reproductively mature PBF.

Response: The majority of PBF harvested by U.S. anglers in the EPO are 1-3 year old juvenile fish (average weight 30 pounds) that have not yet reached sexual maturity (i.e., are reproductively inactive). PBF reach sexual maturity at approximately five years of age and roughly 125 pounds. PBF spawn in the western Central Pacific Ocean (WCPO) between central Japan and the northern Philippines, and in the Sea of Japan from April through August (2014 PBF Stock Assessment, International Scientific Committee for Tuna and Tuna-like Species in the North Pacific Ocean). Very few PBF of spawning size are available to U.S. anglers in the EPO therefore a slot limit constraining harvest by size would not be a demonstrably effective measure. In addition, instituting a slot limit management measure would require additional and costly monitoring and compliance resources to effectively implement. Expanded state and Federal monitoring efforts, including increased dockside surveys and at-sea sampling efforts, are being implemented to more accurately track the recreational and commercial harvest of PBF to comply with conservation measures in place.

Comment 4: Given the severely depressed status of the stock, a 1-fish daily bag limit resulting in a projected harvest impact reduction of 54 percent would be more appropriate to address the harvest reductions embodied in IATTC Resolution C-14-06.

Response: A 2-fish daily bag limit is consistent with IATTC scientific staff recommendations and Pacific Council recommendations. IATTC Resolution C-14-06 recommends a reduction of 20 percent to 45 percent in PBF catches to assist in the rebuilding of the PBF stock, provided that these reductions are implemented over the entire range of the stock. For the period 2004-2013, the impact of recreational catch of PBF in the EPO (predominantly by California-based recreational vessels) has ranged from 0.4 percent to 24 percent of the total EPO fishery impact and 0.1 percent to 4.7 percent of the stock-wide fishery impact. The implementation of a bag limit of 2 PBF per day is estimated to reduce the U.S. recreational harvest of PBF by 30 percent, as compared to the average U.S. West Coast sport fishing harvest of PBF during the 2008-2013 time frame. The estimated 30 percent reduction is consistent with IATTC scientific staff recommendations and guidance embodied in MSA Section 304(i) for reducing the relative impact of the U.S. fleet on the stock. The percentage of angler bags that would face a reduction increases steeply when considering a reduction from a 2 fish per day bag limit to a 1 fish per day limit, while the reduction in the overall U.S. recreational mortality increases by a relatively smaller amount. Estimated employment impacts also increase sharply with lower bag limits; for instance, job loss in the CPFV industry on the range from 14 to 85 full-time positions, out of an estimated 1,537 total positions, is expected with a bag reduction to one fish per day (Draft Environmental Assessment, Daily Bag Limits, Possession Limits, and At-Sea Processing for Pacific Bluefin Tuna in California Recreational Fisheries. Pacific Fishery Management Council, June 2015). The 2 fish per day bag limit is consistent with MSA National Standards, including Standard 8, which requires consideration of the importance of fishery resources to fishing communities when implementing conservation and management measures.

Comment 5: A total PBF recreational fishery closure is warranted based on the estimated 96-percent PBF population biomass decrease from the unfished biomass.

Response: There is no evidence to suggest that a unilateral closure of U.S. recreational fishing for PBF will either end overfishing or have a measurable impact on reducing overfishing because catch of PBF by the U.S.-based recreational fishery represents such a small portion of the total Pacific-wide catch. Furthermore, such a prohibition would economically harm U.S. West Coast fishing communities. Despite the fact that U.S. West Coast-based sport fishermen are not permitted to sell their catch, other positive regional economic impacts generated by recreational fishing activities, as well as the pleasure of recreational fishing, would be negatively impacted by a fishing closure. The Pacific Council considered impacts to recreational fisheries when adopting the measures contained in this rule as part of its biennial management process, and in accordance with responsibilities under MSA section 304(i) to address the relative impact of U.S. fisheries on the PBF stock. During its deliberations, the Pacific Council considered an analysis of the potential impact of recreational bag and possession limit reductions, including a 0-bag limit scenario (i.e., a moratorium on retention of catch), which is similar in nature to closing the fishery. This analysis was based on CPFV logbook data from the 2008 to 2013 fishing seasons and included results indicating that a moratorium on PBF fishing (e.g., reducing the current PBF bag limit from 10 to 0 fish) could lead to a loss of up to $13.8 million in annual trip expenditures and $25.8 million in annual gross sales within the southern California due to a decrease in the number of CPFV trips that target PBF (5,275 angler days in U.S. waters and 56,338 angler days in Mexico waters). Additionally, the 0-bag limit scenario was estimated to generate a potential employment loss in the southern California economy of up to 178 full-time equivalent jobs. In addition to the indirect economic impact of a potential no-retention measure, recreational fishermen would also be deprived of the pleasure of fishing for, and retaining, even small numbers of PBF.

Comment 6: Given the increased presence and abundance of PBF off the U.S. West Coast over the past few seasons, a bag limit reduction is unnecessary.

Response: The spawning stock biomass (SSB) of PBF is at historic lows (about 4 percent compared to the SSB if no fishing had taken place) while the amount and rate of PBF harvested each year continues to be high (2014 PBF Stock Assessment, International Scientific Committee for Tuna and Tuna-like Species in the North Pacific Ocean). The U.S. has a statutory obligation under both the MSA and the Tuna Conventions Act (statutory authority to implement IATTC Resolutions) to reduce harvest of PBF. All member nations to the IATTC and the Western and Central Pacific Fisheries Commission (WCPFC) that harvest PBF have committed to harvest reductions that contribute to the rebuilding of the PBF stock.

Of the tunas, PBF has the broadest geographic range, spanning large expanses of the Pacific Ocean. They spawn in the WCPO between central Japan and the northern Philippines, and in the Sea of Japan from April through August. Based on tag return data, a portion of these fish are known migrate to waters off the U.S. West Coast and Mexico. The exact proportion that migrates is unknown, but it is possible that in the last few years a larger proportion of the juveniles have migrated from the spawning grounds to the U.S. West Coast and Mexico. The migration patterns of PBF are influenced by oceanographic conditions and vary among years. Increases in the number of fish observed locally may be a result of changes in the proportion of fish migrating to the eastern Pacific, and/or conditions along the west coast that may have shifted schools further north.

Comment 7: The proposed fillet requirements are overly burdensome and unnecessary to adequately identify tuna species; specifically, NMFS should not require fishermen to cut out the collars and the belly flaps.

Response: The at-sea fillet requirements will assist law enforcement personnel in accurately differentiating among species of tuna, specifically yellowfin and PBF. Personnel from NMFS, the California Department of Fish and Wildlife (CDFW), and key sportfishing industry stakeholders worked with state and Federal law enforcement personnel to design and test the proposed at-sea fillet requirements. The final fillet specifications were derived, in part, from advice provided by regionally recognized tuna species identification specialists and based on a series of filleting demonstrations and simulated identification exercises. One of the key diagnostic characteristics for identifying these two species is the shape and length of the pectoral fin. Another diagnostic characteristic is the thickness of the belly flaps and the shape of the urogenital pore. The belly wall is thicker and the urogenital pore is rounded in PBF versus a thinner belly wall and a more oval-shaped pore in yellowfin tuna. Therefore, to facilitate enforcement, NOAA has a compelling reason for requiring fishermen to leave these characteristics intact (i.e., by keeping pectoral fins attached to the collars, and including the belly flap) when filleting at-sea.

Comment 8: The fillet requirements would create unsafe conditions at sea, given the difficulty in making the proposed cuts, specifically the collar cuts, while working on unstable and slippery vessel platforms.

Response: The fillet requirements will only apply south of a line running due west true from Point Conception, Santa Barbara County (34°27′ N. latitude) to the U.S.-Mexico border. If rough seas create a safety risk while filleting, fishermen may choose to not fillet their catch until reaching calmer waters. Individuals may also leave the fish whole or process them in another manner such that the species may be determined. This could include gilling and gutting, a process in which the fish is bled and the gills and/or internal organs are removed, but the rest of the fish remains intact. This type of processing is not considered filleting.

Comment 9: More should be done to constrain commercial harvests of PBF given the majority of the impacts on the stock have been attributed to commercial fisheries interactions. Domestic regulations are not equitable to measures being implemented internationally to rebuild the stock.

Response: While this comment was not within the scope of this rulemaking, NMFS notes that considerable effort is being undertaken to constrain commercial harvests of PBF both domestically and internationally. The United States is part of this effort and is obligated under the treaty establishing the IATTC and under the MSA to constrain harvest by U.S. commercial and recreational fleets. All members of the WCPFC and IATTC, including the United States, are obligated to make catch reductions in the interest of rebuilding the stock. Specifically, the WCPFC Conservation and Management Measure 2014-04 stipulates that:

• All members must reduce their fishing of PBF to below the average amount they fished in 2002 to 2004 in the WCPO; and
• All members must reduce their catch of PBF smaller than 30 kg (66 lbs) by 50 percent of the average amount fished in 2002 to 2004 in the WCPO.

Additionally, IATTC Resolution C-14-06 stipulates that:

• A 20- to 45-percent reduction be made to PBF catches to benefit rebuilding of the stock, provided that these reductions are implemented over the entire range of the stock; and
• U.S. commercial catches cannot exceed 600 mt in 2015 and 2016 combined; and the total commercial catches by all IATTC Members cannot exceed 6,600 mt in 2015 and 2016 combined in the EPO.

Comment 10: There is potential for high grading PBF (releasing or discarding smaller fish so that larger fish may be retained within the bag limit); unquantified catch and release mortality could negatively impact the stock.

Response: While the potential for high grading exists based on the reduced bag and the desire for anglers to retain larger fish, the impact of PBF mortalities due to catch and release is expected to be minimal on a stock-wide basis. As stated above, the U.S. recreational catch of PBF in the EPO (i.e., predominantly by California-based recreational vessels) from 2004 to 2013 has comprised 0.4 percent to 24 percent of the total EPO fishery and 0.1 percent to 4.7 percent of the stock-wide fishery. Limited monitoring of discards in the PBF sport fishery, including the level of catch and release events, will take place in 2015. If it is determined that the mortalities associated with high grading and or discards are impacting the PBF stock recovery and rebuilding schedule, NMFS and the Pacific Council could develop additional management measures, as part of the biennial management measure cycle under the HMS FMP.

Comment 11: Release all spawning size female PBF and retain only male PBF greater than 15 pounds.

Response: This management approach, also known as a slot limit, has proven effective in several federally managed fisheries, but the sex of PBF, like all other tuna species, cannot be identified by visual characteristics. Therefore, a slot limit is impractical for this fishery. In addition, the majority of PBF captured in the EPO sport fishery are juvenile, pre-spawning fish.

Comment 12: Commercial fishing for PBF should be prohibited shoreward of 60 miles to create an exclusion zone that would help to recover the stock and provide more opportunities for sport fishermen to offset the reduced bag limit.

Response: Restrictions on commercial fisheries are beyond the scope of this rulemaking. Both the U.S. commercial and recreational sectors are contributing to rebuilding of the PBF stock. The U.S. commercial harvest of PBF is limited to 600 mt for 2015 and 2016, combined, with the caveat that harvest cannot exceed 425 mt in any single year (i.e., via a separate rulemaking based on IATTC Resolution C-14-06). Additionally, if the U.S. commercial harvest in 2015 exceeds 300 mt, the harvest for 2016 will be limited to 200 mt. These commercial catch restrictions comport with the recommendation by IATTC scientific staff to reduce the catch of PBF by 20- to 45-percent. The implementation of an additional conservation measure (i.e., requiring the U.S. commercial fleet to fish seaward of 60 miles off the U.S. West Coast) would place an additional economic burden beyond what is required to rebuild the PBF stock. An additional area closure would unduly penalize U.S. commercial fishing interests and jeopardize the economic viability of this seasonal fishery.

Comment 13: The effective date for the regulations should be tied to the Mexican government reopening the PBF sport fishery in their waters in 2015.

Response: When a stock has been declared overfished or overfishing is occurring, as is the case with PBF, MSA Section 304(i) requires that the NMFS take action to address the relative impact of U.S. fishing on the stock. That requirement is not contingent on the actions of a foreign government, such as the prohibition on sport harvest of PBF within Mexico's EEZ, therefore NMFS is not tying the effective date of this final rule to the Mexican government's reopening the PBF sport fishery.

Comment 14: The at-sea fillet requirements for tunas should be contingent on PBF being present in U.S. waters.

Response: There would need to be a notification methodology designed and put in place that would accurately identify when PBF have moved into U.S. waters to make the at-sea fillet requirements contingent on the presence/absence of PBF in U.S. waters. A reliable and valid methodology is not currently in place, therefore NMFS is not making at-sea filleting requirements contingent on the presence of PBF in U.S. waters.

Classification

The Administrator, West Coast Region, NMFS, determined that the regulatory amendment under the HMS FMP is necessary for the conservation and management of the PBF fishery, and that it is consistent with the MSA and other applicable laws.

Administrative Procedures Act

There is good cause, under 5 U.S.C. 553(d)(3) to waive the requirement for a 30-day delay in effectiveness, and to implement this rule 7 days after the date of filing with the Office of the Federal Register. NMFS is waiving the 30-day delay in effectiveness because PBF have appeared in California waters earlier than anticipated. The vast majority of U.S. recreational angling trips for PBF are from 1 to 3 days in duration. Seven days would provide enough advanced notice for recreational vessel operators and anglers to be notified of the new regulations if they are out at sea when the rule publishes. At present, there is extensive media coverage of the presence of PBF in U.S. west coast waters, which suggests that fishing effort targeting PBF will remain a focal point for anglers and could potentially intensify if favorable oceanic conditions result in additional PBF entering local waters. If this rule is delayed to allow for a 30-day delay in effectiveness, the level of harvest permitted under current regulations (10 fish per day with a daily possession limit of 30 fish per day) could compromise efforts to rebuild the PBF stock, conform with State of California regulations, and uphold the U.S. obligations to reduce catch agreed to under IATTC Resolution C-14-06.

There has been considerable and extensive public outreach and education relating to the impending imposition of reduced daily bag and possession limits for PBF that will mitigate the impacts of a shortened delay in effectiveness of this rule. As stated earlier, this rulemaking is based on a recommendation by the Council, which came after several public scoping meetings and extensive opportunities for public input and comment. The State of California and NMFS has kept the regulated public informed with frequent announcements on this action (e.g., California Department of Fish and Wildlife's Marine Management Newsletter and NOAA Fisheries West Coast Recreational Fisheries email listserve, Let's Talk Hookup radio show, San Diego Union Tribune daily newspaper, Western Outdoor News weekly newsletter coverage, and Sportsfishing Association of California (SAC) updates). There is a small fleet of larger U.S. CPFVs that fish longer range trips (3 to18 days) into Mexico's waters from home ports in San Diego. These vessels have constant radio and/or satellite communications contact with their home offices and/or personnel from SAC. When the final rule files with the Office of the Federal Register, notice will be provided to home offices and to SAC to relay to these vessels and their broader membership. Furthermore, since June of 2014, the government of Mexico has prohibited U.S. vessels from catching and landing PBF in their waters. Until that prohibition is lifted there will be no U.S. vessels fishing for PBF in Mexico's waters.

Executive Order 12866

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

Paperwork Reduction Act (PRA)

There are no new collection-of-information requirements associated with this action that are subject to the PRA. Existing collection-of-information requirements associated with the HMS FMP have been approved by the Office of Management and Budget (OMB) under Control Number 0648-0204. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to 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.

Regulatory Flexibility Act

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. One comment was received regarding this certification questioning the “not likely to adversely impact” determination contained in the Regulatory Flexibility Act (RFA) economic analysis presented for this action. The final rule implements a reduction in recreational bag and possession limits for PBF, and filleting requirements for harvested tuna. These restrictions directly affect only individual recreational anglers. Recreational anglers may not legally sell their catch, and thus are not considered to be a business. Because recreational anglers are not considered to be a small business entity under the RFA, the economic effects of this final rule to anglers are outside the scope of the RFA. Although the CPFV sector of the sport fishery is likely to experience indirect economic impacts due to the imposition of reduced daily bag and possession limits, an RFA analysis of those impacts was not included since CPFV operators are not subject to direct impacts of this final rule, other than to a limited extent if they personally participate in the recreational fishing activity. Indirect impacts on small business entities, such as a potential decline in demand for CPFV trips, are not considered under the scope of RFA analysis. As a result, a regulatory flexibility analysis was not required and none was prepared.

List of Subjects in 50 CFR Part 660

• Fisheries
• Fishing
• Reporting and recordkeeping requirements

For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:

PART 660—FISHERIES OFF THE WEST COAST STATES

1. The authority citation for part 660 continues to read as follows:

Authority: 16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.

2. In § 660.721, revise the section heading, introductory text, and paragraphs (a) introductory text and (b), and add paragraph (e) to read as follows: