[Federal Register Volume 81, Number 72 (Thursday, April 14, 2016)]
[Proposed Rules]
[Pages 22044-22047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08535]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 150817722-6304-01]
RIN 0648-BF10


Atlantic Highly Migratory Species; Archival Tag Management 
Measures

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS is proposing to revise the regulations that currently 
require persons surgically implanting archival

[[Page 22045]]

tags in Atlantic highly migratory species (HMS) or externally affixing 
archival tags to such species to obtain written authorization from NMFS 
and that require fishermen to report their catches of Atlantic HMS with 
such tags to NMFS. Archival tags are tags that record scientific 
information about the migratory behavior of a fish and include tags 
that are surgically implanted in a fish and tags that are externally 
affixed, such as pop-up satellite (PSAT) and smart position and 
temperature tags (SPOT). Specifically, this rule would remove the 
requirement for researchers to obtain written authorization from NMFS 
to implant or affix an archival tag but would continue to allow persons 
who catch a fish with a surgically implanted archival tag to retain the 
fish while requiring them to return the tag to the person indicated on 
the tag or to NMFS. The regulation would no longer require the person 
retaining the fish to submit to NMFS a landing report or make the fish 
available for inspection and tag recovery by a NMFS scientist, 
enforcement agent, or other person designated in writing by NMFS. Any 
persons who land an Atlantic HMS with an externally affixed archival 
tag would be encouraged to follow the instructions on the tag to return 
the tag to the appropriate research entity or to NMFS. This action 
could affect any researchers wishing to place archival tags on Atlantic 
HMS and any fishermen who might catch such a tagged fish.

DATES: Written comments must be received by May 16, 2016.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2016-0017, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0017, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Margo Schulze-Haugen, 
Chief, Atlantic HMS Management Division at 1315 East-West Highway, 
Silver Spring, MD 20910.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).

FOR FURTHER INFORMATION CONTACT: Larry Redd, Craig Cockrell, or Karyl 
Brewster-Geisz by phone at 301-427-8503.

SUPPLEMENTARY INFORMATION: Atlantic HMS are managed under the 2006 
Consolidated HMS Fishery Management Plan (FMP). Implementing 
regulations at 50 CFR part 635 are issued under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), 16 U.S.C. 1801 et seq., and Atlantic Tunas Convention Act 
(ATCA), 16 U.S.C. 971 et seq. ATCA authorizes the Secretary of Commerce 
(Secretary) to promulgate regulations, as may be necessary and 
appropriate to implement ICCAT recommendations.
    ``Archival tags'' are defined at Sec.  635.2 as ``a device that is 
implanted or affixed to a fish to electronically record scientific 
information about the migratory behavior of that fish.'' Scientists use 
such tags because they offer a powerful tool for tracking the 
movements, geolocation, and behavior of individual tunas, shark, 
swordfish, or billfishes. Data recovery from some archival tags, 
particularly those that are surgically implanted into the fish, 
requires that fish be re-caught. Other archival tags, such as PSAT and 
SPOT, which are externally affixed to the fish, are able to transmit 
the information remotely and do not require the fish to be re-caught 
nor do researchers expect the tags to be returned, as generally no 
additional data is gained from their return. Data from archival tags 
are used to ascertain HMS life history information such as migratory 
patterns and spawning site fidelity.
    The current regulations under 50 CFR 635.33 regarding archival tags 
have three parts. First, the regulation requires that any person 
seeking to affix or implant an archival tag into Atlantic HMS submit an 
application for an exempted fishing permit (EFP) or scientific research 
permit (SRP) with details about the research. The applications ask for 
details concerning the research objectives, the type and number of tags 
used, the species and approximate size of the tagged fish, and the 
location and method of capture of the tagged fish. Second, if a 
fisherman catches an HMS with an archival tag, the fisherman may land 
the HMS, regardless of the other regulatory requirements for that fish 
(e.g., size limit, season, etc.), if the fisherman complies with the 
third part of the regulations. The third and last part, called a 
``landing report,'' requires fishermen landing an HMS with an archival 
tag to contact NMFS at the time or prior to the time of landing, 
furnish all requested information, and either make the fish available 
for inspection or return the tag to NMFS. The information provided by 
Atlantic HMS fishermen in a landings report could include the archival 
tag itself, location of capture, and the captured fish.
    These regulations were implemented in the late 1990s at a time when 
archival tag technology was new, most of the archival tags had to be 
surgically implanted into the fish, and the mortality associated with 
surgically implanting such tags was unknown. Archival tags have been in 
use for almost 20 years and the mortality associated with the activity, 
whether it is surgically implanting the tag or affixing it externally 
to the fish, is now known to be negligible.
    NMFS has issued authorizations to only two researchers for the 
surgical implantation of an archival tag in the last 5 years. Those 
researchers have placed a small number of surgically implanted archival 
tags only in bluefin tuna, and generally only in those fish that 
measure less than 40 inches curved fork length; in larger fish, the 
researchers prefer to affix external archival tags. Given the limited 
battery and data storage capacity of archival tags, NMFS expects that 
there are few continuously functioning implanted archival tags 
currently in any Atlantic HMS. Researchers have communicated to NMFS 
that implanted archival tag recovery has decreased over the last 4 
years. Presently, PSAT, SPOT, and other externally-affixed archival 
tags are more commonly used and, as previously mentioned, this is 
perhaps in part because the data recovery does not depend on re-
catching the fish and extricating the tag. Furthermore, while the 
information that could be provided in the landings report such as 
location of landing and length of Atlantic HMS may be helpful in 
assisting scientists, NMFS rarely hears of any archival tagged fish 
being recaptured. A few times a year, a fisherman may call NMFS to ask 
where to return a tag (most often these calls are about non-archival 
tags) they obtained from an Atlantic HMS in their possession. If a 
fisherman is indeed calling about returning an archival tag, any 
information collected about the fish is given directly to the 
scientists or entities noted on the tag and not necessarily to NMFS. 
Given that scientists continue to place externally-

[[Page 22046]]

affixed archival tags and are not notifying NMFS that the lack of 
enforcement of the landings report is resulting in a loss of needed 
scientific data, NMFS assumes that both scientists and fishermen would 
not object to the removal of the landing report requirement, but 
invites comments on this provision.
    NMFS is considering revisions to the regulatory requirements 
because the original conservation and management concern about affixing 
tags to highly migratory species (i.e., the potential for high 
mortality) is now commonly accepted as non-problematic. The goal of 
this proposed rule is to reduce administrative and regulatory burden 
given the outdated conservation concern, while maintaining appropriate 
conservation and management regulatory requirements.
    NMFS, in one non-preferred alternative, considered removing all 
authorization and reporting requirements in the regulations regarding 
archival tags. Under this alternative, researchers would no longer need 
to apply for authorization to implant or affix archival tags to 
Atlantic HMS, and fishermen who catch an Atlantic HMS with an archival 
tag would no longer be required to make a landing report or make the 
fish available to a NMFS scientist, enforcement agent, or other person 
designated in writing by NMFS. Additionally, under this alternative, in 
order to land an HMS with any type of archival tag, fishermen would 
need to meet the other regulatory requirements applicable to that fish. 
Under this alternative, the return of any archival tag by a fisherman 
who retains a tagged Atlantic HMS to NMFS or the tag's originating 
researcher would be voluntary. For surgically implanted tags, any 
information collected by the tag would be lost unless the tag is 
voluntarily returned to either NMFS or the originating researcher. 
Externally affixed archival tags, such as PSAT and SPOT, are able to 
remotely transmit their data, making the information collected by the 
tag available to researchers whether the tag is returned to them or 
not. However, data about the landings and ultimate disposition of the 
fish would potentially be lost if the fisherman did not contact NMFS or 
the researcher. Thus, while this non-preferred alternative would reduce 
the administrative cost for researchers and for fishermen who catch a 
fish with any type of archival tag, removing the regulatory incentive 
to return surgically implanted tags could result in the loss of 
valuable life history and biological data, the loss of any physical 
tags currently in the field, and a loss of investment for researchers 
with such tags currently in the field. Removing the regulatory 
incentive to contact NMFS or the researcher could also potentially 
result in a loss of data including data about the landing and ultimate 
disposition of the fish, although as previously discussed, such 
reporting for externally affixed tags typically does not currently 
occur under the regulations.
    Data collected from returned surgically-implanted tags are 
important to the tagging program. Without the regulatory requirement to 
return surgically implanted tags, the scientific contributions and 
value of surgically implanted archival tagging programs to Atlantic HMS 
management and conservation may not be realized. Further, uncertainty 
about tag and data recovery could dissuade the future use of surgically 
implanted tags.
    NMFS' preferred alternative would modify all parts of the 
regulation. Specifically, regarding the first part of the regulation, 
the alternative would remove the requirement for researchers to obtain 
written authorization from NMFS to implant or affix an archival tag. 
Regarding the second and third parts of the regulations, the preferred 
alternative would remove the landings report requirement while 
maintaining the regulatory incentive that Atlantic HMS caught with a 
surgically implanted archival tag could be retained, regardless of the 
other regulations, on the condition that the surgically implanted tag 
is returned to either the originating researcher or to NMFS. The 
regulation would no longer require the person retaining the fish to 
submit a landing report to NMFS or make the fish available for 
inspection and tag recovery by a NMFS scientist, enforcement agent, or 
other person designated in writing by NMFS. Rather, anyone catching a 
fish that could not otherwise be landed, but that has a surgically-
implanted archival tag, can land the fish if the fisherman returns the 
tag to the originating researcher or NMFS. In all other cases, NMFS 
would encourage the fisherman to return the tag and any information 
requested directly to the scientist or entity noted on the tag itself. 
As described above, NMFS believes fishermen already work directly with 
scientists when returning tags.
    NMFS prefers this alternative because it maintains appropriate 
management and conservation requirements while eliminating certain 
administrative burdens to make the archival tagging process more 
efficient. This alternative would reduce any time and delay cost to 
researchers associated with the applying for a permit to place tags on 
Atlantic HMS. It would not change the effort or cost to fishermen who 
catch an Atlantic HMS with a surgically implanted archival tag, 
although the cost associated with returning the tag to the researcher 
is minimal.
    Additionally, the preferred alternative would offer more certainty 
that, for those rare surgically-implanted tags, recollection and data 
recovery would take place by maintaining regulatory incentives for the 
return of implanted tags. This would afford some assurance to 
researchers that current or future archival tag research activity with 
surgically implanted tags would not operate at a loss in investment due 
to discarded tags and would continue to contribute to the collection of 
Atlantic HMS life history and biological data. For all the reasons 
above, NMFS prefers this alternative.

Request for Comments

    NMFS is requesting comments on the proposed action, which would 
remove the requirement for researchers to obtain written authorization 
to implant or affix archival tags, to continue to require fishermen who 
land a fish with a surgically implanted archival tag to return the tag 
to the researcher or NMFS, to encourage fishermen who land a fish with 
an externally affixed archival tag to return the tag to the researcher 
or NMFS, and to remove the landing report requirement.
    Additionally, at the September 2015 HMS Advisory Panel meeting in 
Silver Spring, MD, NMFS received a request to prohibit the retention of 
any Atlantic HMS caught with an externally affixed archival or 
electronic tag. The Advisory Panel member who suggested this change 
noted that archival tags are expensive and that the tagged live fish in 
the wild allows scientists to collect biological data and other 
information that cannot be collected by other means. Given this 
request, NMFS is requesting comments on whether fishermen who catch a 
fish with an externally affixed archival tag, such as a PSAT or SPOT, 
should be required to release the fish even if the fish is otherwise 
legal to land (e.g., meets the minimum size restrictions and caught 
with appropriate gear). While this proposed rule focuses on the more 
limited issue of easing the regulatory burden associated with 
regulations that have over time become outdated because of changes in 
tagging technology, we are interested in public comments on the 
Advisory Panel member's request, as a preliminary first step in 
exploring future related responsive action through separate rulemaking, 
as appropriate.

[[Page 22047]]

Public Hearings

    Public hearings on this proposed rule are not currently scheduled. 
If you would like to request a public hearing, please contact Larry 
Redd, Craig Cockrell, or Karyl Brewster-Geisz by phone at 301-427-8503.

Classification

    The NMFS Assistant Administrator has determined that the proposed 
rule is consistent with the 2006 Consolidated HMS FMP and its 
amendments, the Magnuson-Stevens Act, and other applicable law, subject 
to further consideration after public comment.
    This proposed action is not significant for the purposes of 
Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule to revise Atlantic HMS archival 
tag management measures, if adopted, would not have a significant 
economic impact on a substantial number of small entities under Section 
605(b) of the Regulatory Flexibility Act (RFA).
    As described above, this proposed rule would modify the regulations 
so that researchers would no longer need to obtain written 
authorization from NMFS before implanting or affixing archival tags. 
Thus, this proposed rule would reduce any time and delay costs to 
researchers because they would not need to apply for a permit to place 
tags on Atlantic HMS. Also, the proposed rule would no longer require 
the person retaining the fish to submit a landing report to NMFS or 
make the fish available for inspection and tag recovery by a NMFS 
scientist, enforcement agent, or other person designated in writing by 
NMFS. Given that scientists continue to place externally-affixed 
archival tags and are not notifying NMFS that the lack of enforcement 
of the landings report is resulting in a loss of needed scientific 
data, NMFS assumes that both scientists and fishermen would not object 
to the removal of the landing report requirement but are requesting 
comments on this provision. Fishermen would be relieved of the 
obligation to file a landings report with NMFS if they caught and 
retained an HMS with an externally affixed archival tag and thus would 
have less regulatory obligation and delay in bringing the fish to 
market. The cost to fisherman associated with returning the tag to the 
researcher are minimal and, for surgically implanted tags in recent 
years, uncommon, particularly since NMFS has issued authorizations to 
only two researchers for the surgical implantation of an archival tag 
in the last 5 years. However, if a fish with a surgically implanted 
archival tag were caught, this proposed rule would offer some certainty 
that tag recollection and data recovery would take place by maintaining 
the regulatory incentive for the return of implanted tags to NMFS or 
the originating research.
    For the last five years, NMFS has issued an average of 12 permits 
for externally affixing archival tags (e.g., pop-up satellite archival 
tags and smart position and temperature tags), and in the same time 
frame, NMFS has issued authorizations to only 2 researchers for the 
surgical implantation of an archival tag. Therefore, NMFS estimates 
that this rule would apply to approximately 14 research entities. The 
rule would also apply to any fisherman who caught a fish that has a 
surgically implanted archival tag. At this time, NMFS does not know how 
many fishermen might encounter this situation but, because NMFS has 
issued permits to only two researchers in the last five years that 
would allow for the surgical implantation of archival tags and those 
researchers have surgically implanted only a limited number of archival 
tags, NMFS estimates minimal fishermen would be affected--perhaps less 
than five per year. The action does not contain any new collection of 
information, reporting, record-keeping, or other compliance 
requirements. Rather, this rule would relieve approximately 14 research 
entities from the need to apply for a permit to place archival tags on 
Atlantic HMS. For the reasons above, the archival tag management 
measures proposed in this rule would not have a significant impact on a 
substantial number of small entities.

List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, 
Penalties, Reporting and recordkeeping requirements, Treaties.

    Dated: April 8, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, 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

0
1. The authority citation for part 635 continues to read as follows:


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

0
2. Revise Sec.  635.33 to read as follows:


Sec.  635.33  Archival tags.

    (a) Landing an HMS with a surgically implanted archival tag. 
Notwithstanding other provisions of this part, persons may catch, 
possess, retain, and land an Atlantic HMS in which an archival tag has 
been surgically implanted, provided such persons return the tag to the 
research entity indicated on the tag or to NMFS at an address 
designated by NMFS and report the fish as required in Sec.  635.5.
    (b) Quota monitoring. If an Atlantic HMS landed under the authority 
of paragraph (a) of this section is subject to a quota, the fish will 
be counted against the applicable quota for the species consistent with 
the fishing gear and activity which resulted in the catch. In the event 
such fishing gear or activity is otherwise prohibited under applicable 
provisions of this part, the fish shall be counted against the reserve 
or research quota established for that species, as appropriate.
0
3. In Sec.  635.71, revise paragraph (a)(20) to read as follows


Sec.  635.71  Prohibitions.

* * * * *
    (a) * * *
    (20) Fail to return a surgically implanted archival tag of a 
retained Atlantic HMS to NMFS or the research entity and report such 
retention, as specified in Sec.  635.33.
* * * * *
[FR Doc. 2016-08535 Filed 4-13-16; 8:45 am]
 BILLING CODE 3510-22-P