[Federal Register Volume 64, Number 107 (Friday, June 4, 1999)]
[Proposed Rules]
[Pages 29984-29986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14138]



[[Page 29984]]

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 990528152-9152-01; I.D. 051199A]
RIN 0648-AM27


Atlantic Highly Migratory Species Fisheries; Atlantic Bluefin 
Tuna Fishery; Regulatory Adjustment

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

ACTION: Proposed rule; public hearings; request for comments.

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SUMMARY: NMFS proposes to amend the regulations governing the Atlantic 
highly migratory species (HMS) fisheries to prohibit fishing vessel 
operators from using spotter aircraft to assist in the location and 
capture of Atlantic bluefin tuna (BFT) for all vessels other than Purse 
Seine category vessels. The proposed regulatory amendments are 
necessary to achieve domestic management objectives for HMS fisheries. 
NMFS has received extensive comment on this issue during the comment 
period for the rule to implement the Fishery Management Plan for 
Atlantic Tunas, Swordfish, and Sharks (HMS FMP) and during previous 
related comment periods. However, NMFS will hold two public hearings to 
receive additional comments from fishery participants and other members 
of the public regarding these proposed amendments.

DATES: Comments are invited and must be received on or before June 22, 
1999. The public hearings dates are:
    1. Monday, June 14, 1999, 2-5 p.m. in Silver Spring, MD.
    2. Tuesday, June 15, 1999, 7-10 p.m. in Gloucester, MA.

ADDRESSES: Comments on the proposed rule should be sent to, Rebecca 
Lent, Chief, Highly Migratory Species Management Division (F/SF1), 
NMFS, 1315 East-West Highway, Silver Spring, MD 20910-3282. Copies of 
supporting documents, including a Draft Environmental Assessment (EA), 
which includes a Draft Regulatory Impact Review and an Initial 
Regulatory Flexibility Analysis (IRFA), are available from Brad McHale, 
Highly Migratory Species Management Division, Northeast Regional 
Office, NMFS, One Blackburn Drive, Gloucester, MA 01930.
    The public hearing locations are:
    1. Silver Spring (Monday June 14, 1999), NMFS, 1315 East-West 
Highway, Room 4527, Silver Spring, MD 20910.
    2. Gloucester, MA (Tuesday June 15, 1999), Milton Fuller School, 4 
School House Road, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Mark Murray-Brown, 978-281-9260.

SUPPLEMENTARY INFORMATION: Atlantic tunas are managed under the dual 
authority of the Magnson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act 
(ATCA). ATCA authorizes the Secretary of Commerce 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 for Fisheries, NOAA (AA). Within NMFS, 
daily responsibility for management of Atlantic HMS fisheries rests 
with the Office of Sustainable Fisheries, and is carried out by the HMS 
Management Division.
    NMFS proposes this action under the framework provisions described 
in the HMS FMP. NMFS believes that the prohibition on the use of 
spotter aircraft assistance by fishing vessel operators (other than 
those in the Purse Seine category) in the location and capture of 
Atlantic BFT is a necessary regulatory action in order to meet the 
goals and objectives of the FMP.
    After reviewing public comments and additional information or data 
that may be available, NMFS will, if appropriate, make final 
determinations regarding the consistency of this proposed measure with 
the objectives of the FMP, the national standards of the Magnuson-
Stevens Act, and other applicable law. Within 30 days of the close of 
the public comment period, NMFS will take final action.

Background

    Background information on the use of spotter aircraft in the BFT 
fishery was provided in the HMS FMP, released in April 1999, and is 
provided in greater detail in the Draft EA.

Relation to Previous Rulemaking

    NMFS has, on four prior occasions (in 1988, 1989, 1996, and 1997), 
requested specific comments on the impacts of spotter aircraft use in 
the BFT fishery. NMFS has proposed prohibiting the use of spotter 
aircraft by all but Purse Seine category vessels twice, and, in 1997, 
published a final rule to prohibit the use of spotter aircraft by all 
but Purse Seine and Harpoon category vessels. Prior to 1997, NMFS did 
not take final action due to concerns about the enforceability of 
spotter aircraft regulations. Additionally, in 1996, the majority of 
active tuna spotters signed a voluntary agreement limiting their 
activity to assisting vessels using harpoon gear. 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. Public comment indicated that some 
rod-and-reel vessels in the General category were using spotter 
aircraft contrary to the terms of the agreement.
    On March 4, 1997 (62 FR 9726), NMFS proposed to prohibit the use of 
spotter aircraft except in the Purse Seine category fishery. NMFS 
indicated that it had considered combining the Harpoon and General 
categories as a means of resolving catch rate and safety issues (since 
a daily catch limit of one BFT per vessel for all handgear fishermen 
would decrease the incentive for spotter aircraft use), but was 
concerned that the harpoon fishery, as it had traditionally existed, 
might not be able to continue under such restriction. NMFS requested 
comment on suggestions from constituents that self-policing would 
assist with enforcement of a spotter aircraft prohibition, and on 
alternative measures to address the fishery management and safety 
issues raised by use of spotter aircraft in the BFT fishery. In 
response, NMFS received nearly 2,000 comments on the proposed 
prohibition on the use of spotter aircraft. On July 18, 1997 (62 FR 
38487), NMFS published a final rule prohibiting the use of spotter 
aircraft to assist vessels in all but the Purse Seine and Harpoon 
categories.
    In response to a lawsuit filed by the Atlantic Fish Spotters 
Association, the United States District Court for Massachusetts, on 
June 10, 1998, overturned the prohibition on the use of spotter 
aircraft in assisting BFT vessels in other than the Harpoon and Purse 
Seine categories, as codified in 50 CFR 285.31(a)(40); the prohibition 
is now void. NMFS decided not to appeal the Court's decision, but 
rather, to gather more facts and relevant data in order to reach a 
satisfactory resolution.
    At the August 1998 meeting of the HMS Advisory Panel (AP) in 
Warwick, Rhode Island, apart from three abstentions, all members of the 
AP requested and advised that NMFS prohibit the use of spotter aircraft 
in the BFT fishery. In the draft HMS FMP published in October 1998, 
NMFS once again presented alternatives on

[[Page 29985]]

regulating the use of spotter aircraft in the BFT fishery. NMFS did not 
propose any changes at that time, pending further deliberation and 
analysis, but the agency did indicate that it would address the issue 
in a separate rulemaking before the start of the 1999 General and 
Harpoon category seasons (June 1, 1999).
    In April 1999, NMFS adopted the final HMS FMP. This FMP establishes 
a rebuilding program for west Atlantic BFT and brings the management of 
Atlantic tuna under the dual authority of the Magnuson-Stevens Act and 
ATCA. The Magnuson-Stevens Act and the FMP bring new considerations to 
regulating the use of spotter aircraft. In the time since the 
prohibition on the use of spotter aircraft in assisting BFT vessels in 
other than the Harpoon and Purse Seine categories was overturned (July 
1998), NMFS has obtained further information, conducted additional 
analyses, and contracted for an independent study regarding the use of 
spotter aircraft in the BFT fishery.
    NMFS remains concerned that the use of spotter aircraft to locate 
BFT accelerates the catch rates and closures in the General and Harpoon 
categories. This undermines NMFS' regulations designed to control 
effort in the General category, alters the distribution of optimum 
yield, and impedes the collection of important scientific information 
in the fishery. In addition, the use of spotter aircraft is 
inconsistent with the reasoning behind the initial establishment of the 
Harpoon category (in which multiple daily landings are allowed) and the 
Harpoon category quota in 1980, i.e., dependency on optimal weather and 
sea conditions, negatively impacts traditional fisheries and has 
adverse impacts on communities. The issue of spotter aircraft use in 
the BFT fishery is a source of great conflict in the fishery. Conflicts 
in the fishery are exacerbated by the fact that the BFT fishery is a 
derby fishery (with the exception of the Purse Seine category), in 
which vessels are concentrated on the fishing grounds over short 
periods of time. Some commenters have indicated that potential for 
accidents at sea is increased by the use, whether direct or indirect, 
of spotter aircraft as vessels may congregate under the aircraft. NMFS 
has received extensive comment from the public and guidance from the 
HMS AP urging NMFS to prohibit the use of spotter aircraft by all 
vessels in the BFT fishery other than those in the Purse Seine 
category.
    After a review of all the information on record regarding this 
issue, NMFS has determined that the status quo is unacceptable and that 
the proposed action would best address the management concerns 
regarding spotter aircraft use in the BFT fishery, while ensuring that 
the objectives of the FMP are met, consistent with the Magnuson-Stevens 
Act and that Act's national standards.

Spotter Aircraft

    This proposed rule would prohibit the use of spotter aircraft to 
assist fishing vessels in the location and capture of BFT, with the 
exception of Purse Seine category vessels.

Permit Category Deadline Change

    Within 1 week, NMFS will announce, in the Federal Register, the 
deadline to change Atlantic tuna permit categories for calendar year 
1999. Previously, NMFS suspended this deadline to allow vessel owners 
to weigh the impacts of various rulemakings on each permit category (64 
FR 27207, May 19, 1999).

Public Hearings and Special Accommodations

    The public hearing sites are physically accessible to people with 
disabilities. Requests for sign language interpretation or other 
auxiliary aids should be directed to Mark Murray-Brown (see FOR FURTHER 
INFORMATION CONTACT) at least 7 days prior to the hearing.
    The public is reminded that NMFS expects participants at the public 
hearings to conduct themselves appropriately. At the beginning of each 
public hearing, a NMFS representative will explain the ground rules 
(e.g., alcohol in the hearing room is prohibited, attendees will be 
called to give their comments in the order in which they registered to 
speak, each attendee will have an equal amount of time to speak, and 
attendees should not interrupt one another). The NMFS representative 
will attempt to structure the hearing so that all attending members of 
the public are able to comment, if they so choose, regardless of the 
controversiality of the subject(s). Attendees are expected to respect 
the ground rules, and if they do not, they will be asked to leave the 
hearing.

Classification

    This proposed rule is 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. Preliminarily, the AA has 
determined that the regulations contained in this proposed rule are 
consistent with the FMP, the Magnuson-Stevens Act, and the 1998 ICCAT 
recommendation (ICCAT Rebuilding Program).
    NMFS has prepared a draft EA for this proposed rule and has 
concluded that, depending on the universe of potentially impacted small 
business entities involved in the BFT fishery chosen for analysis, this 
action may or may not result in a significant impact on small entities 
in the fishery as a whole. Therefore, NMFS has prepared an IRFA to 
accompany the proposed rule. The reasons this action is being 
considered and the objectives of, and legal basis for, the proposed 
rule are as stated in the preamble above. The IRFA indicates that if 
the proposed regulations are implemented, there may be a negative 
impact on a significant number of small business entities, including 
fishing vessels and spotter aircraft, involved in the BFT fishery. NMFS 
estimates that less than 70 small entities, including fishing vessels 
and spotter aircraft, would be significantly affected by the proposed 
rule. This is less than 1 percent of the small entities participating 
in the bluefin tuna fishery in terms of the total number of spotter 
aircraft/pilots and commercially-permitted vessels. The impact is 
significant for a greater percentage of small entities in the fishery 
if one considers only those vessels which land fish as those which are 
potentially affected. In addition, these regulations may also impact 
related parties and communities such as marinas, gear suppliers, and 
aviation-related businesses. There are no relevant Federal rules which 
duplicate, overlap, or conflict with the proposed rule. There are no 
proposed reporting, recordkeeping or compliance requirements in the 
proposed rule. Although the preferred alternative may have a 
significant impact on small business entities, NMFS believes that these 
impacts are unavoidable if the management concerns regarding spotter 
aircraft are to be addressed. NMFS considered several alternatives to 
the preferred alternative, including: No action, prohibition of the use 
of spotter aircraft for vessels in the General category only, and 
requiring registration and reporting for fishing vessels or spotter 
aircraft. NMFS has preliminarily determined that none of these 
alternatives meet the objectives of, and basis for, this proposed 
action.
    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    NMFS initiated formal consultation on the HMS and billfish 
fisheries on May 12, 1998. The consultation request concerned the 
possible effects of management measures in the HMS FMP

[[Page 29986]]

and Billfish Amendment. On April 23, 1999, NMFS issued a Biological 
Opinion (BO) under section 7 of the Endangered Species Act. The BO 
applies to the Atlantic pelagic fisheries for tunas, sharks, swordfish, 
and billfish.
    The harpoon/handline/rod-and-reel gear fisheries are listed as 
category III fisheries under the Marine Mammal Authorization Program 
due to their remote likelihood of interaction with marine mammals. 
Although a few reports of entanglement in handline and harpoon gear 
exist, these were likely non-injurious entanglements from which the 
whales could easily disentangle themselves or be disentangled. 
Increased development of the Disentanglement Network under the Atlantic 
Large Whale Take Reduction Plan should provide adequate mitigation for 
these infrequent (and thus far, non-lethal) entanglements.
    The B.O. states that after reviewing the current status of the 
subject species, the environmental baseline for the action area, the 
cumulative effects of the continued operation of the Atlantic HMS 
fisheries and associated management actions, it is NMFS' biological 
opinion that the continued operation of the harpoon/handline/rod-and-
reel gear fisheries is not likely to adversely affect the continued 
existence of any endangered or threatened species under NMFS 
jurisdiction.
    Because the proposed action addresses only the Atlantic BFT 
harpoon/handline/rod-and-reel gear fisheries, NMFS has determined that 
proceeding with this proposed rule would not result in any irreversible 
and irretrievable commitment of resources that would have the effect of 
foreclosing the formulation or implementation of any reasonable and 
prudent alternative measures. This proposed rule would prohibit of 
fishing vessel operators from using spotter aircraft to assist in the 
location and capture of BFT for all vessels other than Purse Seine 
category vessels. Therefore, the proposed rule is not expected to 
increase endangered species or marine mammal interaction rates.
    The area in which this proposed action is planned has been 
identified as essential fish habitat (EFH) for species managed by the 
New England Fishery Management Council, the Mid-Atlantic Fishery 
Management Council and the Highly Migratory Species Division of NMFS. 
It is not anticipated that this action will have any adverse impacts to 
EFH and therefore no consultation is required.

List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Reporting and recordkeeping requirements, 
Treaties.

    Dated: May 28, 1999.
Andrew A. Rosenberg
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 635 is 
proposed to be amended as follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

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

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

    2. In Sec. 635.2, the definition for ``aircraft'' is added to read 
as follows:


Sec. 635.2  Definitions.

* * * * *
     Aircraft means any contrivance used for flight in air.
* * * * *
    3. In Sec. 635.21, paragraph (e) is added to read as follows:


Sec. 635.21  Gear operation and deployment restrictions.

* * * * *
    (e) Aircraft. Other than for a vessel holding a valid permit in the 
Purse Seine category under Sec. 635.4, locating, fishing for, catching, 
taking, retaining or possessing, or attempting to locate, fish for, 
catch, retain, or possess, bluefin tuna by means, aid, or use of any 
aircraft is prohibited.
    4. In Sec. 635.71, paragraph (b)(28) is added to read as follows:


Sec. 635.71  Prohibitions.

* * * * *
    (b) * * *
    (28) Locate, fish for, catch, possess or retain, or attempt to 
locate fish for, catch, possess or retain any bluefin tuna by means, 
aid, or use of any aircraft, unless holding a valid permit in the Purse 
Seine category under Sec. 635.4.
* * * * *
[FR Doc. 99-14138 Filed 6-1-99; 10:51 am]
BILLING CODE 3510-22-F