[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