[Federal Register Volume 66, Number 138 (Wednesday, July 18, 2001)]
[Rules and Regulations]
[Pages 37421-37424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17918]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 010326079-1170-02; I.D. 010301C]]
RIN 0648-AO96


Atlantic Highly Migratory Species (HMS); 2001 Atlantic Bluefin 
Tuna Quota Specifications and General Category Effort Controls

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

ACTION: Final initial quota specifications and General category effort 
controls.

-----------------------------------------------------------------------

SUMMARY: NMFS announces the final initial quota specifications for the 
Atlantic bluefin tuna (BFT) fishery to set BFT quota and General 
category effort controls for the 2001 fishing year. The final initial 
quota specifications and General category effort controls are necessary 
to implement the 1998 recommendation of the International Commission 
for the Conservation of Atlantic Tunas (ICCAT) as required by the 
Atlantic Tunas Convention Act (ATCA) and to achieve domestic management 
objectives under the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act).

DATES: The final initial quota specifications and General category 
effort controls are effective July 13, 2001, through May 31, 2002.

ADDRESSES: Copies of supporting documents, including the Fishery 
Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP), 
are available from the Highly Migratory Species Management Division, 
NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 
01930.

FOR FURTHER INFORMATION CONTACT: Brad McHale or Pat Scida at 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 ATCA. ATCA authorizes the Secretary of 
Commerce (Secretary) to implement binding recommendations of 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).

Background

    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 its implementing regulations require that NMFS issue 
annual quota specifications and effort controls for the BFT fisheries. 
The final initial quota specifications allocate the total ICCAT-
recommended quota (including the allocation of the unused portion of 
the dead discard allowance) among the several established fishing 
categories, carry over any unharvested quota in 2000 from a specific 
category to the same category for 2001, and are consistent with the BFT 
rebuilding program as set forth in the 1998 ICCAT recommendation and 
the HMS FMP. Further background information and rationale for these 
final initial quota specifications and General category effort controls 
were provided in the preamble to the proposed initial quota 
specifications and General category effort controls (66 FR 17520, April 
2, 2001) and are not repeated here.

Changes From the Proposed Specifications

    Based on consideration of comments received during the comment 
period, NMFS is reducing the number of restricted fishing days (RFDs) 
scheduled for the 2001 fishing year. The revised schedule is indicted 
in the section addressing effort controls. In addition, minor 
modifications have been made to the 2001 fishing year quotas based on 
revised landings for the 2000 fishing year.

Fishing Category Quotas

    NMFS implements U.S. domestic quota allocations for the 2001 
fishing year, beginning June 1, 2001, consistent with the HMS FMP and 
the 1,387-metric ton (mt) U.S. allocation. The percentage quota shares 
established in the HMS FMP for fishing years beginning June 1, 1999 are 
as follows (tonnage in parentheses corresponds to 1,387 mt total 
quota): General category: 47.1 percent (653.3 mt); Harpoon category: 
3.9 percent (54.1 mt); Purse Seine category: 18.6 percent (258.0 mt); 
Angling category: 19.7 percent (273.2 mt); Longline category: 8.1 
percent (112.3 mt); Trap category: 0.1 percent (1.4 mt); and Reserve: 
2.5 percent (34.7 mt).
    Based on these percentages and on quota adjustments resulting from 
overharvests or underharvests in the 2000 fishing year, the adjusted 
quotas for the 2000 fishing year are as follows: 609.3 mt for the 
Angling category; 666.7 mt for the General category; 55.0 mt for the 
Harpoon category; 193.2 mt for the Longline category; 3.9 mt for the 
Trap category; 255.6 mt for the Purse Seine category; and 42.5 mt for 
the Reserve.
    The Angling category quota is subdivided as follows: School BFT--
247.8 mt, with 134.3 mt to the northern area (north of 38 deg.47' N. 
lat.), 113.5 mt to the southern area (south of 38 deg.47' N. lat.), and 
20.6 mt held in reserve; large school/small medium BFT--330.0 mt, with 
171.1 mt to the northern area and 158.9 mt to the southern area; and 
large medium/giant BFT--10.9 mt, with 4.8 mt to the northern area and 
6.1 mt to the southern area. NMFS proposed a rule (65 FR 76601; 
December 7, 2000) that would adjust the location of the Angling 
category north-south dividing line to 39 deg. 18' N. lat. and change 
the percentage quota allocations in the northern and southern areas. 
Should a final rule be issued to implement these changes during the 
2001 fishing year, that final rule will also revise the 2001 Angling 
category subquotas contained in this document based on any changes made 
to the quota allocations for the northern and southern areas.
    The Longline category is subdivided as follows: 24.9 mt to longline 
vessels landing BFT north of 34 deg. N. latitude and 168.3 mt to 
longline vessels landing BFT south of 34 deg. N. latitude.

General Category Effort Controls

    For the 2001 fishing year, NMFS implements General category quota 
subdivisions as established in the HMS FMP, as follows: 60 percent for 
June-August, 30 percent for September, and 10 percent for October-
December. Given the underharvest of the 2000 fishing year General 
category quota, these percentages are applied to the adjusted coastwide 
quota for the General category of 656.7 mt, with the remaining 10.0 mt 
being reserved for the New York Bight fishery. Therefore, coastwide, 
394.0 mt

[[Page 37422]]

are available for the period beginning June 1 and ending August 31; 
197.0 mt are available for the period beginning September 1 and ending 
September 30; and 65.7 mt are available for the period beginning 
October 1 and ending December 31.
    The New York Bight set-aside area is the area comprising the waters 
south and west of a straight line originating at a point on the 
southern shore of Long Island at 72 deg.27' W. long. (Shinnecock Inlet) 
and running SSE 150 deg. true, and north of 38 deg.47' N. lat. When the 
coastwide General category fishery has been closed in any quota period, 
NMFS may publish notification in the Federal Register to make available 
up to 10 mt of the quota set aside for the New York Bight area. A
    Attainment of the subquota in any quota period will result in a 
closure until the beginning of the following quota period. The subquota 
for the following quota period will be adjusted by any underharvest or 
overharvest in the previous quota period. Announcements of closures 
will be filed for publication with the Office of the Federal Register, 
stating the effective date of closure, and will be disseminated by the 
HMS Fax Network, the Atlantic Tunas Information Line, NOAA weather 
radio, and Coast Guard Notice to Mariners. Although notification of 
closure will be provided as far in advance as possible, fishermen are 
encouraged to call the Atlantic Tunas Information Line (978-281-9305 or 
888-872-8862) to check the status of the fishery before leaving for a 
fishing trip.
    Persons aboard vessels permitted in the General category are 
prohibited from fishing (including tag and release fishing) for BFT of 
all sizes on the following days in 2001: August 11, 12, and 13; 
September 2, 3, 5, 9, 10, 12, 16, 17, 19, 23, 24, 26, and 30; and 
October 1 and 3. Persons aboard vessels permitted in the Atlantic HMS 
Charter/Headboat category are prohibited from fishing for large medium 
and giant BFT under the General category quota on the indicated RFDs. 
These RFDs will improve distribution of fishing opportunities without 
increasing BFT mortality and are consistent with the objectives of the 
HMS FMP.

Comments and Responses

Quota Carryover Provisions

    Comment: Some commenters stated there should be no changes to the 
current quota carryover provisions. The agency should address any 
excessive amounts of quota with inseason transfers. Some commenters 
stated the amount of quota proposed to be carried over in the Angling 
category due to underharvest of the quota for that category during the 
2000 fishing year is very large. NMFS should use the inseason transfer 
criteria specified in the regulations to make the quota available to 
other users within the domestic fishery, specifically to the commercial 
categories, in which each fish landed is reported. Inseason quota 
transfers should also take place in the beginning of the season, or as 
early as possible, to avoid late season transfers that can prolonging 
the fishery late into the season when the weather is usually the worst. 
Other commenters stated that if a carryover cap was put into place it 
should be a high percentage of the initial quota allocation for that 
category. A few commenters stated that capping the amount of tonnage 
that may be carried over could be problematic as determining an 
appropriate cap level would be difficult and contentious. Thus, instead 
categories should be provided a reasonable opportunity to catch their 
quota. Some comments received stated that if a particular category's 
quota is not harvested, and this pattern repeats itself for a couple of 
years, this could have serious ramifications under the current 
carryover regulations. Some commenters stated that with the amount of 
quota available in the Angling category, increased mortality on a 
specific year class could have devastating effects on the overall 
rebuilding plan. One commenter pointed out that categories are not 
guaranteed the quota allocated to them, fishermen are provided an ample 
opportunity to catch that quota, there is no private ownership of the 
quota, and the agency must do what it believes is good for the fishery 
as a whole.
    Response: For the 2001 fishing year NMFS has decided to continue 
the current system to address quota transfers, namely: (1) inseason 
quota transfers in accordance with HMS FMP transfer criteria and (2) 
end-of-the-year carryover provisions, to ensure all reasonable 
opportunities are provided for U.S. fishermen to harvest the available 
quota. NMFS recognizes the concerns regarding the excess build up of 
quota in any one category due to annual quota carry-overs, such as 
potential negative biological impacts, precedents for starting new 
unsustainable fisheries, etc., and NMFS will continue to monitor the 
fishery and take appropriate inseason action. In addition, NMFS may 
consider, in consultation with the HMS Advisory Panel, addressing 
excessive quota carry-overs through rulemaking.

Restricted Fishing Days

    Comment: Some commenters stated that NMFS should remove RFDs from 
the June through August time period sub-quota while keeping the Sunday, 
Monday, Wednesday schedule for September, as well as the October 
through December, time period sub-quotas. Some commenters stated that 
over the past few seasons catch rates have been relatively low for much 
of the season and that RFDs have impeded fishermen from having a 
reasonable opportunity to land the quotas previously established for 
particular time periods. In addition many commenters stated that NMFS 
should use its ability to institute or ``waive'' RFDs during the season 
as necessary. Some commenters stated that NMFS should not implement 
October RFDs, especially beyond the first few days of October. October 
weather alone should dictate when fishermen make a trip and by not 
allowing fishermen a reasonable opportunity to catch the quota the 
agency runs the risk of not complying with ATCA. Some commenters stated 
that the RFD schedule should remain as it was last year to extend the 
season as long as possible.
    Response: NMFS removes 25 RFDs from the schedule announced in the 
proposed specifications. The days removed are primarily in the June 
through August time-period subquota, except for a Japanese market 
holiday that takes place mid-August. NMFS also recognizes that the 
weather is unpredictable in the later portion of the season, 
particularly in the later half of October, and poor weather conditions 
may limit participation without the need for RFDs after the first week 
in October. Thus, the RFD schedule does not include RFDs after the 
first week of October. If it appears that catch rates are extremely 
high in the early portion of the season, NMFS may establish additional 
RFDs as deemed necessary to moderate the fishery and assist in 
attaining Optimum Yield.

2001 Fishing Year Quota Allocations

    Comment: Many commenters stated that the Harpoon category should 
receive an increase in quota. This increase should be of an amount that 
would put the Harpoon category at approximately 10-12 percent of the 
General category quota for 2001. NMFS should use quota from either the 
unused portion of dead discard allowance, or the underharvest from the 
2000 fishing year quota, or the quota from the Reserve, to boost the 
Harpoon quota this

[[Page 37423]]

season and then do either a framework action or an amendment to the HMS 
FMP to increase the Harpoon category quota over the long term.
    Response: NMFS is allocating 55.0 mt to the Harpoon category, as 
proposed, based upon the annual quota allocation percentages and annual 
carryover provisions established in the HMS FMP. As appropriate, NMFS 
may use the authority to make inseason transfers from one category to 
another based on transfer criteria established in the HMS FMP. NMFS 
will closely monitor the season to determine the status of the Harpoon 
category and whether inseason transfers are warranted. In addition, 
NMFS may consider, in consultation with the HMS FMP, whether an 
amendment to the HMS FMP is appropriate.
    Comment: Some commenters stated that the Longline category should 
not receive a carryover from a previous year because it is an 
incidental fishery. The unlanded quota from this category should be 
used to restore the Harpoon and Purse seine categories to their 
historical levels. Other commenters stated that target catch 
requirements in the Longline category have been too strict in the past 
and should be relaxed to allow a reasonable opportunity to harvest the 
category's quota before transferring that quota to one of the other 
categories.
    Response: NMFS is implementing a Longline category quota of 193.2 
mt based on annual carryover procedures established in the HMS FMP. The 
Longline incidental BFT quota and incidental target catch limits have 
been the subject of extensive public debate. NMFS published an Advance 
Notice of Proposed Rulemaking (ANPR) on November 17, 2000 requesting 
comment on this subject. At the recent HMS Advisory Panel meeting held 
in April, various options for revising the Longline limits were 
considered. NMFS intends to examine this issue comprehensively through 
subsequent rulemaking.
    Comment: Some commenters stated that North Carolina (NC) should 
have its own General and Angling category set aside quotas. By not 
allowing NC a commercial fishery the agency is violating national 
standard 4. Other comments received stated historical fisheries must be 
restored before any new fisheries, such as a commercial handgear 
fishery in NC, are created.
    Response: NMFS continues to believe that allowing new gear types 
and fisheries for BFT at this time would be inconsistent with 
rebuilding overfished stocks and preventing overfishing. Fishermen in 
the state of NC have the opportunity to fish recreationally under the 
Angling category bag limits and NMFS has the ability to open and close 
the Angling category to ensure reasonable fishing opportunities in all 
areas, including NC. Thus NMFS does not believe a set aside of Angling 
category quota is necessary for NC or any other area.
    During FMP development, the issue of opening a new fishery and 
establishing a set-aside for a NC General category fishery was 
extensively discussed by the HMS Advisory panel (AP) and the public. 
However, the HMS AP did not reach consensus on whether or not to allow 
a new southern fishery. NMFS' position remains that allowing new gear 
types and fisheries for BFT would not be consistent with rebuilding 
overfished stocks and preventing overfishing at this time.

Specifications

    Comment: Some commenters stated that the minimum size for a 
commercial BFT should be reduced to 65 inches (165 cm). Historically 
the Large school/Small medium size class were caught by General 
category vessels and were sold or retained for personal use. Once that 
changed, in 1991, there has been no fishery for that size class to 
speak of, thus the large amounts of unharvested quota. NMFS should 
reduce the commercial minimum size and alleviate some of this excess 
quota carryover.
    Response: NMFS believes that the 73-inch (185 cm) commercial 
minimum size should be maintained. The current commercial minimum size 
limit was implemented in 1992, and was not adjusted in the HMS FMP, as 
it is consistent with the objectives of the HMS FMP and achieving 
optimum yield in the fishery. By lowering the commercial minimum size 
the number of BFT landed could increase, which may affect longterm 
rebuilding. Currently, all BFT less than 73 inches (185 cm) are 
allocated to the Angling category, and lowering the commercial minimum 
size to allow the sale of these fish by vessels in commercial permit 
categories would be a re-allocation of quota, which would have to be 
considered in a separate rulemaking.
    Comment: Some commenters stated that NMFS should use multiple fish 
retention limits in the General category to assure that time period 
sub-quotas are harvested within their allotted time frame. Some 
commenters stated that multiple fish retention limits should be 
implemented early in the season, while others stated that they should 
be implemented in the end of the season. If NMFS were to consider 
allowing multiple catch in the General category, it should also 
reconsider allowing buyboats back into the fishery.
    Response: NMFS has the authority to increase or decrease the 
General category daily retention limit of large medium and giant BFT 
over a range from zero to a maximum of three per vessel. NMFS may use 
this flexibility in the daily limit to provide fishermen a reasonable 
opportunity to achieve the General category quota. Starting the season 
with a multiple fish retention limit could work to the fishermen's 
disadvantage if the season has to be closed early in the fishing year. 
Starting at one large medium or giant BFT per day should provide the 
greatest opportunity for a longer season providing maximum fishing 
opportunities to the greatest number of fishery participants over the 
greatest geographic area. Buyboats were eliminated with the adoption of 
the HMS FMP in 1999, due to the lack of use and potential enforcement 
problems. Given the limited potential for use, there is no compelling 
reason to authorize buyboats in the BFT fishery at this time.
    Comment: Commenters stated that the May 15 deadline to change 
categories should be changed. If fishermen are going to be held to this 
arbitrary date, so should the agency be held to a requirement to 
publish a final rule in a timely manner. The final rule should be 
available to fishermen before they are forced to make a business 
decision. Other commenters stated that as the new web-based permitting 
system fishermen can provide permits in real-time via computer or fax, 
the May 15 date should be adjusted to the end of May to allow the 
agency more time to publish a final rule.
    Response: NMFS agrees that it should publish final specifications 
before the beginning of the fishing year. Part of the rationale for the 
adjustment of the fishing year from a calendar year to one that begins 
June 1 was to provide adequate time for the development of proposed and 
final specifications after the annual ICCAT meeting in November. The 
workload within the HMS Division this spring delayed publication of the 
proposed specifications. However, as the measures contained in the 
specifications do not change the status quo as presented in the HMS FMP 
(except for the addition of RFDs in October), NMFS believes that there 
was minimal, or no, impact on decisions regarding choice of permit 
categories. NMFS did, however, extend the deadline for permit category 
changes until May 31, 2001 due to technical problems with the 
permitting system.

[[Page 37424]]

    Comment: NMFS should limit BFT commercial gear to rod and reel 
only.
    Response: NMFS disagrees. Vessels using gear other than rod and 
reel gear, for example, harpoon and purse seine gear, have a long 
history of participation in the BFT fishery. Prohibiting the use of 
these gears in the Atlantic tuna fisheries is inconsistent with the 
objectives of the FMP. Bycatch concerns, for these gear types, are 
minimal and, in the case of purse seine gear, the number of vessels in 
the fishery is limited. Regarding pelagic longline gear, this gear is 
primarily used to target swordfish and other fish species. Prohibiting 
this gear in the Atlantic tunas fisheries could result in increased 
tuna discards, as BFT are occasionally caught incidentally on longline 
gear when fishing for swordfish and other tunas. In addition, longline 
gear is restricted in the BFT fisheries with strict target catch 
requirements for incidental catch retention. All permitted gear types 
in the commercial and recreational BFT fisheries are regulated and 
subject to the overall U.S. BFT quota.
    Comment: The quota allocation percentage for school size BFT should 
be increased from its current level of eight percent. Other commenters 
suggested that this is an ICCAT issue that should be raised with the 
ICCAT Advisory Committee.
    Response: This issue does not fall within the parameters of this 
rulemaking. This issue is more appropriately addressed by the ICCAT 
Advisory Committee in making a recommendation for a change in the ICCAT 
rebuilding program. Inseason Measures for the Recreational Fishery
    Comment: Commenters stated that NMFS should create a third fishing 
area for the Angling category. Other commenters stated that, due to the 
amount of quota that is available for carryover from the 2000 fishing 
year, the retention limits should be liberalized to provide an ample 
opportunity to catch the quota. Commenters also stated that the season 
should be lengthened by having a number of sub-zones with unique 
retention limits depending on the time of the year. Finally, commenters 
stated that a different retention limit should be applied to inspected 
vessels based upon some ratio of the number of passengers onboard.
    Response: NMFS intends to address the specific issue of Angling 
category catch limits and seasons through its existing regulatory 
authority for inseason adjustments to enhance fishing opportunities for 
Angling category participants coastwide. Comments regarding the 
appropriate distribution will be considered as NMFS makes any necessary 
inseason adjustments in separate actions.

Classification

    These final initial quota specifications and General category 
effort controls are published under the authority of the Magnuson-
Stevens Act, 16 U.S.C. 1801 et seq., and ATCA, 16 U.S.C. 971 et seq. 
The Assistant Administrator for Fisheries, NOAA, has determined that 
the quota specifications and the General category effort controls are 
consistent with the HMS FMP, the Magnuson-Stevens Act, ATCA, and the 
1998 ICCAT BFT catch recommendation.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration when these initial quota specifications and General 
category effort controls were proposed that, if adopted, they 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 
certification. Accordingly, neither an Initial or Final Regulatory 
Flexibility Analysis was prepared.
    These final initial quota specifications and General category 
effort controls have been determined to be not significant for purposes 
of Executive Order 12866.
    These final initial specification are not expected to increase 
endangered species or marine mammal interaction rates. On June 8, 2001 
NMFS issued a Biological Opinion (BO) after concluding formal 
consultation for the HMS fisheries under Section 7 of the Endangered 
Species Act. The BO concluded that the pelagic longline fishery is 
likely to jeopardize the continued existence of threatened or 
endangered species. Pelagic longline vessels are not permitted to 
direct fishing on BFT, and are allocated a quota only for incidental 
take of BFT while conducting a fishery for swordfish and other tunas. 
Consequently, these BFT specifications will not change fishing 
practices for longline vessels. NMFS plans on addressing the 
conclusions of the BO regarding the pelagic longline fishery through 
separate rulemaking. The BO concluded that the gears used in directed 
BFT fisheries (handgear and purse seines) may affect, but are not 
likely to adversely affect, threatened or endangered species. This 
final rule will not significantly alter current fishing practices and 
would not likely increase takes of listed species or interfere with the 
implementation of the reasonable and prudent alternative measures 
identified in the BO to reduce adverse impacts on protected resources.
    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, the South Atlantic Fishery Management Council, the 
Gulf of Mexico Fishery Management Council, the Caribbean Fishery 
Management Council, and the Highly Migratory Species Division of the 
Office of Sustainable fisheries at NMFS. It is not anticipated that 
this action will have any adverse impacts to EFH and, therefore, no 
consultation is required.
    These specifications and effort controls are necessary to ensure 
that the United States' actions are consistent with its international 
obligations under ICCAT and, because the fishing season is underway, a 
delay of effectiveness is contrary to the public interest. 
Additionally, a delay in effectiveness is unnecessary because these 
specifications and effort controls impose no requirements with which 
fishermen need time to come into compliance. Therefore, NMFS has 
determined that there is good cause to waive the 30-day delay in the 
effective date normally required by 5 U.S.C. 553(d). NMFS will rapidly 
communicate these final specifications through the FAX network.

    Dated: July 13, 2001.
William T. Hogarth,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 01-17918 Filed 7-13-01; 4:03 pm]
BILLING CODE 3510-22-S