[Federal Register Volume 64, Number 159 (Wednesday, August 18, 1999)]
[Proposed Rules]
[Pages 44885-44888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21344]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 990811217-9217-01; I.D. 061899A]
RIN 0648-AM82


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 remove the 250 metric ton 
(mt) limit on allocating Atlantic bluefin tuna (BFT) landings quota to 
the Purse Seine category. Without this restriction, the annual 
allocation of BFT to the Purse Seine category would be 18.6 percent of 
the total landings quota available to the United States. The proposed 
regulatory amendments are necessary to achieve domestic management 
objectives for HMS fisheries. NMFS 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 (FMP) and 
during a recent meeting of the HMS Advisory Panel (AP). 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 September 
27, 1999. The public hearings dates are:
    1. Wednesday, September 1, 1999, 3:30-6:00 p.m. in Silver Spring, 
MD.
    2. Tuesday, September 7, 1999, 7:00-9:00 p.m. in Fairhaven, 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 (RIR), are available 
from Pat Scida, Highly Migratory Species Management Division, Northeast 
Regional Office, NMFS, One Blackburn Drive, Gloucester, MA 01930.
    The public hearing locations are:
    1. Silver Spring (Wednesday, September 1, 1999), NMFS, SSMC III - 
Room 4527, 1315 East-West Highway, Silver Spring, MD 20910.
    2. Fairhaven (Tuesday, September 7, 1999), Seaport Inn, 110 Middle 
Street, Fairhaven, MA 02719.

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

SUPPLEMENTARY INFORMATION: Atlantic tunas 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 for Fisheries, NOAA 
(AA). Within NMFS, daily responsibility for management of Atlantic HMS 
fisheries rests with the Office of Sustainable Fisheries, and is 
administered by the HMS Management Division.

Background

    Based on the 1998 revised stock assessment, parties at the 1998 
meeting of ICCAT adopted a 20-year west Atlantic BFT rebuilding 
program, beginning in 1999 and continuing through 2018. ICCAT has 
adopted an annual total allowable catch (TAC) for western Atlantic BFT 
of 2,500 mt whole weight (ww), inclusive of dead discards, to be 
applied annually until such time as the TAC is changed based on advice 
from the Standing Committee on Research and Statistics. The annual 
landing quota allocated to the United States was set at 1,387 mt ww. 
Regulations at 50 CFR 635.27 subdivide the U.S. BFT quota recommended 
by ICCAT among the various domestic fishing categories.
    On May 28, 1999, NMFS published in the Federal Register (64 FR 
29090) final regulations, effective July 1, 1999, implementing the HMS 
FMP that was adopted and made available to the public in April 1999. 
The HMS FMP and the implementing regulations established percentage 
quota shares for the ICCAT-recommended U.S. BFT landing quota for each 
of the domestic fishing categories. These percentage shares were based 
on historical allocations as had been adjusted in recent years. In the 
final rule, NMFS adopted a limit (cap) on the amount of the annual 
quota that would be

[[Page 44886]]

allocated to the Purse Seine category, establishing a percentage share 
of 18.6 percent of the overall U.S. BFT landings quota, or 250 mt, 
whichever is less. Under this cap, if 18.6 percent of the total ICCAT 
recommended annual landings quota would exceed 250 mt, only the 250 mt 
would be allocated to the Purse Seine category and the amount over 250 
mt would be allocated to the Reserve.
    In the final HMS FMP it was noted that discussions held at the HMS 
AP meetings were not conclusive regarding the purse seine category 
allocation with respect to a situation of increased quotas from ICCAT. 
NMFS indicated that although the final HMS FMP had adopted the cap of 
250 mt, further discussions with the HMS AP were needed to clarify the 
issue, especially since ICCAT had recommended a small increase in 
landings quota available to the U.S. in 1999. NMFS therefore stated in 
the HMS FMP that, after later consultation with the HMS AP, the purse 
seine cap could be adjusted by regulatory amendment under the framework 
provisions of the FMP. Pending that consultation with the HMS AP, NMFS 
proceeded to issue final BFT quota specifications for the 1999 fishing 
year.

Purse Seine Quota Specification

    The ICCAT-recommended 1999 U.S. BFT landings quota is 1,387 mt, 
18.6 percent of which is 258 mt, or 8 mt over the cap. NMFS indicated 
in the HMS FMP that the additional 8 mt would be held in reserve until 
after the AP had discussed the issue. Thus, under the regulatory cap, 
the Purse Seine category was initially allocated a 250 mt BFT landings 
quota for 1999, and the additional 8 mt were allocated to the Reserve 
category. Given the regulatory provisions for interannual adjustments, 
an additional 2 mt Purse Seine category quota that was not harvested in 
1998 was added to the category's quota for 1999, for an adjusted Purse 
Seine category quota of 252 mt (64 FR 29806, June 3, 1999).
    The AP met in Silver Spring, MD on June 10 and June 11, 1999, and 
discussed, among other things, the Purse Seine category cap. After 
extensive discussion, a majority favored removal of the cap. The AP 
provided information and advice to NMFS on the issue of fairness in the 
context of allocation to the Purse Seine category. Among the points 
used by the AP in support of removing the cap were the following: (1) a 
cap on one category and not on others is not fair and equitable, (2) a 
cap on the only category in the fishery which is managed under limited 
access does not promote the objectives of limited access management 
systems, and (3) retention of a cap on the Purse Seine category's BFT 
quota allocation may cause purse seine vessels to increase fishing 
effort on yellowfin tuna, which is an important commercial and 
recreational species for vessels in other Atlantic tunas permit 
categories, and for which there is an ICCAT recommendation in place to 
limit effective fishing effort.
    After considering the input from the HMS AP, NMFS transferred 8 mt 
of BFT quota from the Reserve to the Purse Seine category (64 FR 36818, 
July 8, 1999) for the 1999 fishing year. As a result of this transfer, 
the adjusted Purse Seine category quota for 1999 is 260 mt.

Proposed Management Measure

    In addition to its commitment to considering the AP's advice on 
this issue, as stated in the FMP and its implementing regulations, NMFS 
is concerned that Purse Seine category vessels may increase fishing 
effort on yellowfin tuna if the cap is retained. As mentioned earlier, 
yellowfin tuna is an important commercial and recreational species for 
vessels in other Atlantic tunas permit categories, and for which there 
is an ICCAT recommendation in place to limit effective fishing effort. 
As yellowfin tuna is considered a fully-exploited species, and the 
latest ICCAT Standing Committee on Research and Statistics report 
indicates that the current fishing mortality may be higher than that 
which would support maximum sustainable yield on a continuing basis, 
any additional fishing effort directed at yellowfin tuna could have 
adverse impacts on optimum yield in that fishery.
    Removing the cap on the Purse Seine category is also consistent 
with the Magnuson-Stevens Act in that it contributes to the goal of 
allocating restrictions needed to prevent overfishing and recovery 
benefits from rebuilding fairly and equitably among sectors of the 
fishery, in that no one quota category would be restricted in its 
allocation while others would not. It is also consistent with the 
objectives of the FMP to preserve traditional fisheries and historical 
fishing patterns, in the fact that the Purse Seine fishery is a 
historical component of the overall U.S. Atlantic BFT fishery, 
participating in the fishery since the 1950's.
    NMFS proposes this action to remove the purse seine allocation cap 
under the framework provisions described in the FMP. NMFS believes that 
the allocation of a percentage of the BFT landings quota, without a 
cap, is consistent with management measures in the FMP, and is an 
appropriate 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.

Technical Correction

    When NMFS first established a limited access and individual vessel 
allocation system for the Purse Seine category, the vessel allocations 
were made transferable. Initially, the allocations were transferable in 
whole, but in subsequent rulemaking, the allocations were made 
transferable in whole or in part (61 FR 30187, June 14, 1996). The 
allowance for partial transfers was made to reduce bycatch mortality 
during the last few sets as vessels approached the limits of individual 
allocations. In the final consolidated rule to implement the HMS FMP, 
NMFS inadvertently reissued the older procedures for notification of 
transfer of the entire allocation from one permitted purse seine vessel 
to another, omitting the newer procedures for notification of partial 
transfers. The proposed rule would reinstate updated notification 
procedures for transfers.

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 is prohibited from the hearing room, 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, 
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.

[[Page 44887]]

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 prepared a draft EA for this proposed rule with a preliminary 
finding of no significant impact on the human environment. In addition, 
a draft RIR was prepared with a preliminary finding of no significant 
impact. The reasons this action is being considered and the objectives 
of, and legal basis for, the proposed rule are as stated in the 
preamble here. There are no relevant Federal rules which duplicate, 
overlap, or conflict with the proposed rule. NMFS considered 
alternatives to the preferred alternative, including: no action 
(maintaining cap of 250 mt for the Purse Seine category), removal of 
the cap on the Purse Seine category, and reduction of the Purse Seine 
category percentage share allocation by 50 percent.
    Notwithstanding any other provision of 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 Paperwork Reduction Act (PRA), unless that collection of 
information displays a currently valid Office of Management and Budget 
(OMB) control number.
    This proposed rule restates an information collection requirement 
relating to purse seine landings quota allocations. Written requests 
for purse seine allocations for Atlantic tunas and notification of 
transfers as required under Sec. 635.27 are not currently approved by 
OMB. However, requests for purse seine allocations and transfer 
notifications are not subject to the PRA because, under current 
regulations, a maximum of five vessels could be subject to reporting 
under this requirement. Since it is impossible for 10 or more 
respondents to be involved, the information collection is exempt from 
the PRA clearance requirement.
    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that the proposed rule, if implemented, would not have a 
significant economic impact on a substantial number of small entities 
as follows:

    The proposed rule would remove the 250 metric ton (mt) maximum 
allocation restriction (cap) on the Purse Seine fishery for Atlantic 
bluefin tuna (BFT), establishing the Purse Seine category BFT quota 
allocation at 18.6 percent of the overall U.S. BFT landings quota 
(1,347 metric tons for 1999). Because the overall U.S. BFT landings 
quota would remain the same, and the amount of BFT quota that would 
be allocated to the Purse Seine category through this proposed 
action (8 metric tons) was previously allocated to the Reserve, and 
not to any particular fishing category, additional revenues would 
accrue to small businesses associated with the purse seine fishery 
without directly affecting other fishing categories.

    Because of this certification, an Initial Regulatory Flexibility 
Analysis was not prepared.
    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 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 BFT purse seine fishery is currently listed as a category III 
fisheries under the Marine Mammal Protection Act. This fishery was 
observed in 1996, with near 100-percent coverage. Six pilot whales, one 
humpback whale, and one minke whale were observed as encircled by the 
nets during the fishery. All were released alive or dove under the nets 
and escaped before being pursed. Purse seines are set when a school of 
fish is located, after which the vessel pays out the net in a circle 
around the school. This affords considerable control over what is 
encircled by the net and the net does not remain in the water for any 
considerable amount of time. Therefore, this gear-type is not likely to 
result in mortality or serious injury of marine mammals or sea turtles.
    The BO states that after reviewing the current status of the 
subject species, the environmental baseline for the action area, the 
effects of the continued operation of the Atlantic HMS fisheries and 
associated management actions, and the cumulative effects, it is NMFS' 
BO that the continued operation of the purse seine fishery may 
adversely affect, but is not likely to jeopardize the continued 
existence of any endangered or threatened species under NMFS 
jurisdiction. A similar conclusion was reached for the other fisheries 
which are allocated BFT quota - the Atlantic pelagic longline fishery 
and the harpoon, hand gear, and rod and reel fisheries for Atlantic 
HMS.
    This proposed rule would remove the 250 mt cap on the annual Purse 
Seine category BFT quota allocation. Because the only fisheries which 
may be affected by this proposed rule are Category III fisheries, 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: August 12, 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. 635.27, introductory paragraph (a) and paragraphs 
(a)(4)(i) and (iii) are revised to read as follows:


Sec. 635.27  Quotas.

    (a) BFT. Consistent with ICCAT recommendations, NMFS will subtract 
any allowance for dead discards from the fishing year's total U.S. 
quota for BFT that can be caught and allocate the remainder to be 
retained, possessed, or landed by persons and vessels subject to U.S. 
jurisdiction. The total landing quota will be divided among the 
General, Angling, Harpoon, Purse Seine, Longline, and Trap categories. 
Consistent with these allocations and other applicable restrictions of 
this part, BFT may be taken by persons aboard vessels issued Atlantic 
Tunas permits or HMS Charter/Headboat permits. Allocations of the BFT 
landings quota will be made according to the following percentages: 
General - 47.1 percent; Angling - 19.7 percent, which includes

[[Page 44888]]

the school BFT held in reserve as described under paragraph (a)(7)(ii) 
of this section; Harpoon - 3.9 percent; Purse Seine - 18.6 percent; 
Longline - 8.1 percent; and Trap - 0.1 percent. The remaining 2.5 
percent of the BFT landings quota will be held in reserve for inseason 
adjustments, to compensate for overharvest in any category other than 
the Angling category school BFT subquota or for fishery independent 
research. NMFS may apportion a landings quota allocated to any category 
to specified fishing periods or to geographic areas. BFT landings 
quotas are specified in whole weight.
* * * * *
    (4) Purse Seine category quota. (i) The total amount of large 
medium and giant BFT that may be caught, retained, possessed, or landed 
by vessels for which Purse Seine category Atlantic Tunas permits have 
been issued is 18.6 percent of the overall U.S. BFT landings quota. The 
Purse Seine fishery under this quota commences on August 15 each year.
* * * * *
    (iii) On or about May 1, NMFS will make equal allocations of the 
available size classes of BFT among purse seine vessel permit holders 
so requesting. Such allocations are freely transferable, in whole or in 
part, among vessels that have Purse Seine category Atlantic Tunas 
permits. Any purse seine vessel permit holder intending to land bluefin 
tuna under an allocation transferred from another purse seine vessel 
permit holder must provide written notice of such intent to NMFS, at an 
address designated by NMFS, 3 days before landing any such bluefin 
tuna. Such notification must include the transfer date, amount (mt) 
transferred, and the permit numbers of vessels involved in the 
transfer. Trip or seasonal catch limits otherwise applicable under 
Sec. 635.23(e) are not altered by transfers of bluefin tuna allocation. 
Purse seine vessel permit holders who, through landing and/or transfer, 
have no remaining bluefin tuna allocation may not use their permitted 
vessels in any fishery in which Atlantic bluefin tuna might be caught, 
regardless of whether retained.
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[FR Doc. 99-21344 Filed 8-12-99; 3:18 pm]
BILLING CODE 3510-22-F