[Federal Register Volume 81, Number 186 (Monday, September 26, 2016)]
[Proposed Rules]
[Pages 65988-65994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-22902]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 160527473-6473-01]
RIN 0648-BG09


Atlantic Highly Migratory Species; Individual Bluefin Quota 
Program; Inseason Transfers

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

ACTION: Proposed rule; request for comments; notice of public hearing.

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

SUMMARY: NMFS proposes to modify the Atlantic highly migratory species 
(HMS) regulations to provide additional flexibility regarding the 
distribution of inseason Atlantic bluefin tuna (BFT) quota transfers to 
the Longline category. The proposed rule would provide NMFS the 
flexibility to distribute quota inseason either to all qualified 
Individual Bluefin Quota (IBQ) share recipients (i.e., share recipients 
who have associated their permit with a vessel) or only to permitted 
Atlantic Tunas Longline vessels with recent fishing activity, whether 
or not they are associated with IBQ shares.

DATES: Written comments must be received on or before October 26, 2016. 
NMFS will host an operator-assisted public hearing conference call and 
webinar on October 4, 2016, from 2 to 4 p.m. EDT, providing an 
opportunity for individuals from all geographic areas to participate. 
See SUPPLEMENTARY INFORMATION for further details.

ADDRESSES: You may submit comments on this document, identified by 
``NOAA-NMFS-2016-0067,'' by either 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-2016-0067, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Thomas Warren, Highly 
Migratory Species (HMS) Management Division, Office of Sustainable 
Fisheries (F/SF1), NMFS, 55 Great Republic Drive, Gloucester, MA 01930.
    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 generally will 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).
    The public hearing conference call information is phone number 
(888) 455-5378; participant passcode 5816248. Participants are strongly 
encouraged to log/dial in 15 minutes prior to the meeting. NMFS will 
show a brief presentation via webinar followed by public comment. To 
join the webinar, go to: https://noaaevents3.webex.com/noaaevents3/onstage/g.php?MTID=e20e9f661ee7184823fb28b56cbf7d16f; meeting number: 
993 144 732; password: NOAA. Participants who have not used WebEx 
before will be prompted to download and run a plug-in program that will 
enable them to view the webinar.
    Supporting documents, including the Regulatory Impact Review and 
Initial Regulatory Flexibility Analysis, may be downloaded from the HMS 
Web site at www.nmfs.noaa.gov/sfa/hms/. These documents also are 
available by contacting Thomas Warren at the mailing address specified 
above.

FOR FURTHER INFORMATION CONTACT: Thomas Warren or Sarah McLaughlin, 
978-281-9260; Carrie Soltanoff, 301-427-8503.

SUPPLEMENTARY INFORMATION: Regulations implemented under the authority 
of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq.) and 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of BFT by 
persons and vessels subject to U.S. jurisdiction are found at 50 CFR 
part 635. Section 635.27 subdivides the U.S. BFT quota recommended by 
the International Commission for the Conservation of Atlantic Tunas 
(ICCAT) among the various domestic fishing categories, per the 
allocations established in the 2006 Consolidated Atlantic Highly 
Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) 
(71 FR 58058, October 2, 2006), as amended by Amendment 7 to the 2006 
Consolidated HMS FMP (Amendment 7) (79 FR 71510, December 2, 2014), and 
in accordance with implementing regulations. The current baseline U.S. 
BFT quota and subquotas were established and analyzed in the BFT quota 
final rule (80 FR 52198, August 28, 2015). NMFS is required under ATCA 
and the Magnuson-Stevens Act to provide U.S. fishing vessels with a 
reasonable opportunity to harvest the ICCAT-recommended quota.

Background

    BFT fishing is managed domestically through a quota system (on a 
calendar-year basis), in conjunction with other management measures 
including gear restrictions, minimum fish sizes, closed areas, trip 
limits, and catch shares. NMFS implements the ICCAT U.S. quota 
recommendation, and divides the quota among U.S. fishing categories 
(i.e., the General, Angling, Harpoon, Purse Seine, Longline, and Trap 
categories) and the Reserve category. Quotas are distributed on an 
annual basis, but NMFS also has the regulatory authority to make 
inseason adjustments to BFT quotas after the initial annual 
allocations, if the U.S. baseline quota increases as a result of an 
ICCAT recommendation or as a result of a transfer of quota from the 
Reserve category in accordance with specific regulatory determination 
criteria.
    Vessels fishing with pelagic longline gear, which catch BFT 
incidentally while fishing for target species (primarily swordfish and 
yellowfin tuna), hold limited access Atlantic Tunas Longline permits 
and utilize Longline category quota. Through Amendment 7, NMFS 
established the IBQ Program, a catch share program that identified 136 
permit holders as IBQ share recipients based on specified criteria, 
including historical target species landings and the bluefin catch-

[[Page 65989]]

to-target species ratios from 2006 through 2012. Consistent with 50 CFR 
635.15(b)(2), recipients received one of three shareholder percentages 
(low, medium, or high) based on their score related to these criteria.
    The specific objectives of the IBQ Program were to:

    1. Limit the amount of BFT landings and dead discards in the 
pelagic longline fishery;
    2. Provide strong incentives for the vessel owner and operator 
to avoid BFT interactions, and thus reduce bluefin dead discards;
    3. Provide flexibility in the quota system to enable pelagic 
longline vessels to obtain BFT quota from other vessels with 
available individual quota in order to enable full accounting for 
BFT landings and dead discards, and minimize constraints on fishing 
for target species;
    4. Balance the objective of limiting bluefin landings and dead 
discards with the objective of optimizing fishing opportunities and 
maintaining profitability; and
    5. Balance the above objectives with potential impacts on the 
directed permit categories that target BFT, and the broader 
objectives of the 2006 Consolidated HMS FMP and the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act).

    IBQ share recipients receive an annual allocation of the Longline 
category quota based on the percentage share they received through 
Amendment 7 but only if their permit is associated with a vessel in the 
subject year (i.e., only ``qualified IBQ share recipients'' receive 
annual allocations). Permit holders that were not selected to receive 
IBQ shares through Amendment 7 may still fish, but they are required to 
lease quota. Leasing occurs through the IBQ electronic system. Every 
vessel must have a minimum amount of quota allocation to fish 
(described below), whether obtained through their shares or by leasing, 
and every vessel must individually account for its BFT landings and 
dead discards through the IBQ electronic system.
    Delayed effective dates for some of the regulations implemented 
through Amendment 7 assisted in the transition to measures adopted in 
Amendment 7, which substantially increased individual vessel 
accountability for BFT bycatch (landings and dead discards) in the 
Longline fishery. During 2015, the first year of implementation of the 
IBQ Program, a pelagic longline vessel that had insufficient IBQ to 
account for its landings and dead discards (i.e., went into ``quota 
debt'') was allowed to continue to fish, however any additional 
landings and dead discards continued to accrue, and the cumulative 
quota debt needed to be accounted for no later than December 31, 2015. 
In contrast, as of January 1, 2016, a vessel fishing with pelagic 
longline gear must have a minimum IBQ allocation to fish and may not 
fish if it has quota debt. A minimum allocation required to fish is 
0.25 mt (551 lb) whole weight (ww) for a trip in the Gulf of Mexico and 
0.125 mt ww (276 lb ww) for a trip in the Atlantic. Pelagic longline 
vessels may lease IBQ allocation from other such vessels or from Purse 
Seine fishery participants in the IBQ Program to obtain sufficient 
allocation for their trips or to account for quota debt.
    In July 2015 and January 2016, NMFS transferred quota inseason from 
the Reserve category to the Longline category (80 FR 45098, July 29, 
2015; 81 FR 19, January 4, 2016). In transferring quota inseason, NMFS 
considered the relevant regulatory determination criteria for inseason 
or annual adjustments under 50 CFR 635.27(a)(8) as required, and 
decided that allocation to the Longline category was warranted to 
increase the amount of quota available to the qualified IBQ share 
recipients and therefore help those permit holders account for BFT 
landings and dead discards, foster conditions in which permit holders 
became more willing to lease IBQ, allow continued fishing for available 
target species quota, and reduce uncertainty in the fishery as a whole. 
In these inseason actions, NMFS distributed the transferred quota in 
equal amounts to the 136 qualified IBQ share recipients, which included 
those with vessels actively fishing and those not actively fishing. 
NMFS distributed the quota transferred inseason equally in order to 
provide each qualified IBQ share recipient the minimum amount of IBQ 
allocation needed to fish. Given the small amount of quota being 
transferred to the category, distribution according to share holder 
percentages would have resulted in transfers below the minimum 
allocation needed to fish and would have made the transfer ineffective 
in easing the transition to the Amendment 7 measures as intended. 
During 2015, based on logbook data, 104 vessels fished with pelagic 
longline gear, 100 of which were vessels associated with IBQ shares and 
4 of which were not. A total of 59 vessels landed BFT, and 2 vessels 
accounted for dead discards but did not land BFT.
    Also during 2015, NMFS implemented a quota increase for the 
Longline category that resulted from an increase in the quota at ICCAT 
and the subsequent modification of the baseline annual U.S. BFT quota 
and subquotas (80 FR 52198, August 28, 2015). In adjusting the baseline 
annual quota upwards, NMFS also adjusted the annual quota distributions 
to the 136 qualified IBQ share recipients, based upon their shareholder 
percentages.
    During 2015, 36 of the 136 qualified IBQ share recipients had no 
pelagic longline fishing activity (i.e., they took no fishing trips 
with pelagic longline gear). Furthermore, 31 of the 36 qualified IBQ 
share recipients that did not fish also did not lease IBQ to others 
(i.e., 31 neither fished nor leased and 5 did not fish, but leased out 
their IBQ allocations). As a result, their IBQ allocations went unused 
for the year and expired at year's end.
    Since January 1, 2015, NMFS has received requests (among other 
suggestions about the IBQ Program and management of the pelagic 
longline fishery) to distribute quota inseason only to those vessels 
that are currently fishing (whether associated with IBQ shares or not) 
to optimize fishing opportunity and account for dead discards, rather 
than distributing it equally to all IBQ share recipients, some of whom 
end up neither using it nor making it available to other vessel owners. 
In advance of and at the March 2016 HMS Advisory Panel meeting, pelagic 
longline fishery participants expressed concerns about the availability 
of IBQ allocation as implemented under Amendment 7. Longline fishery 
participants have stated that, while they were able to obtain 
sufficient IBQ allocation by leasing it under the conditions that 
applied in 2015, those conditions were temporary. They are concerned 
that, as additional requirements now apply beginning in 2016, the IBQ 
Program could negatively impact vessel operations and finances given 
the pricing of IBQ, the distribution of quota among permit holders as 
implemented by Amendment 7, and the behavior of some permit holders 
who, for example, they say hold on to IBQ for the entire season without 
participating in the fishery or engaging in leasing. They also say that 
the expense of leasing IBQ allocation when needed can impact other 
operational costs such as crew pay. If availability is limited, or 
costs are prohibitive, the operational impacts increase. IBQ Program 
data analyzed in this action include the leases that were completed in 
2015, and generally reflect that, for leasing transactions that 
occurred, sales revenue received per pound approximated the cost per 
pound of leasing IBQ. However, IBQ Program participants (which include 
any permit holder or vessel that leases quota to facilitate pelagic 
longline operations) and potential lessees have communicated that there 
were instances where the cost at which lessors were

[[Page 65990]]

willing to lease their IBQ was prohibitive and leasing did not occur. 
Furthermore, expanded opportunities to fish with pelagic longline gear 
within the available swordfish and yellowfin tuna quotas are contingent 
on access to additional quota to account for BFT bycatch and discards. 
Longline fishery participants requested that NMFS take further steps to 
provide more access to quota for those vessels with recent fishing 
activity to reduce the dependence on qualified IBQ share recipients, 
some of whom are not participating in the fishery or engaging in 
leasing.
    After looking at the issues raised by the fishery participants and 
at trends in IBQ leasing and utilization for 2015, it is apparent that 
additional flexibility is needed regarding the distribution of inseason 
transfers of BFT quota within the Longline category to assist NMFS in 
providing reasonable opportunities to fish for target species under the 
limits imposed by the IBQ Program and to optimize distribution of BFT 
quota transferred inseason to the Longline category, while at the same 
time encouraging the appropriate functioning of the IBQ Program, 
including its leasing provisions. As discussed above, 36 of 136 (i.e., 
26 percent) qualified IBQ share recipients that also received 
additional quota from inseason transfers did not fish in 2015, and 31 
neither fished nor leased. Thus, under current conditions, the BFT 
quota from inseason transfers is not being distributed optimally and 
much of the Longline category BFT quota is going unused (136 mt in 
2015). In addition, as discussed above, there were instances where 
permitted Atlantic Tunas Longline vessels sought to lease IBQ, but 
leasing did not occur due to cost prohibitive prices set by lessors. 
This underutilization of IBQ is not consistent with the third and 
fourth objectives of the IBQ Program, because it places unnecessary 
constraints on opportunities for longline fishery participants to fish 
for target species.
    This proposed rule would modify the regulations to specify that 
distribution of quota transferred to the Longline category inseason 
(i.e., beyond the baseline Longline category quota that is distributed 
to qualified IBQ share recipients) may be either to the qualified IBQ 
share recipients or to permitted Atlantic Tunas Longline vessels with 
recent fishing activity whether they are associated with qualified IBQ 
share recipients or not. NMFS would determine recent fishing activity 
through logbook, vessel monitoring system (VMS), or electronic 
monitoring data indicating fishing activity in the subject and previous 
year. For example, for inseason transfers in 2016, NMFS would examine 
fishing activity data for 2015 and 2016 to determine if there was 
fishing activity during that period. Providing flexibility in the quota 
system and maintaining flexibility of the regulations to account for 
the highly variable nature of the BFT fishery was an objective of 
Amendment 7 (See, e.g., Amendment text at 79 FR 71510 and 71559).
    In deciding whether to transfer additional quota to the Longline 
category inseason from the Reserve category, NMFS would continue to 
consider the 14 regulatory determination criteria for inseason or 
annual adjustments at 50 CFR 635.27(a)(8), including the need to 
``optimize fishing opportunity.''
    Next, NMFS would decide whether to distribute that quota 
transferred inseason to all qualified IBQ share recipients or only to 
permitted Atlantic Tunas Longline vessels with recent fishing activity 
whether or not they are associated with IBQ shares. This decision would 
be based on factors for the subject year and previous year, including 
the number of BFT landings and dead discards, the number of IBQ lease 
transactions, the average amount of IBQ leased, the average amount of 
quota debt, the annual amount of IBQ allocation, any previous inseason 
allocations of IBQ, the amount of BFT quota in the Reserve category, 
the percentage of BFT quota harvested by the other quota categories, 
the remaining number of days in the year, the number of active vessels 
fishing not associated with IBQ share, and the number of vessels that 
have incurred quota debt or that have low levels of IBQ allocation. In 
deciding which approach will be used, NMFS will consider which approach 
will best meet the specific objectives of the IBQ Program as stated in 
Amendment 7, including the objective of providing ``flexibility in the 
quota system to enable pelagic longline vessels to obtain BFT quota 
from other vessels with available individual quota in order to enable 
full accounting for BFT landings and dead discards, and minimize 
constraints on fishing for target species.'' For example, in years 
where leasing by IBQ share recipients is not occurring as anticipated 
by Amendment 7 distribution to only active vessels, might be the 
appropriate approach to encourage leasing at levels that ensure 
appropriate functioning of the IBQ system in future years. In years 
where the leasing program is functioning well and leasing is occurring 
as needed, distribution may be to all of the qualified IBQ share 
recipients.
    If NMFS decides to distribute the inseason quota to all qualified 
IBQ share recipients, those qualified IBQ share recipients would 
receive equal amounts of the quota transferred.
    If NMFS decides to distribute inseason quota only to those vessels 
with recent fishing activity, vessels with ``recent fishing activity'' 
would be vessels determined by NMFS to have recent fishing activity in 
the pelagic longline fishery during the subject and previous year based 
upon available information such as logbook, VMS, or electronic 
monitoring data. The specific data and date range analyzed in a given 
inseason action would be those available at the time of year the 
inseason transfer occurs, and will depend on which complete data are 
available at that time. For example, logbook data for a particular year 
are typically not available for use until several months into the 
following year due to the process of data entry and quality control, as 
well as late reporting. Therefore, early in a year, NMFS may determine 
vessel activity for the previous and subject year using VMS data, 
whereas later in the year, it might use both logbook and VMS data.
    Whether NMFS decides to distribute quota to all qualified IBQ 
recipients or to only those permitted vessels with recent fishing 
activity, quota transferred inseason would be distributed equally to 
the vessel account associated with the relevant vessel via the 
electronic IBQ system. In either case, when a qualified IBQ share 
recipient receives inseason quota, the quota will be designated as 
either Gulf of Mexico (GOM) IBQ, Atlantic (ATL) IBQ, or both GOM and 
ATL IBQ, according to the share recipient's regional designations. For 
vessels with recent fishing activity that are not qualified IBQ share 
recipients, NMFS would assign the distributed quota a regional 
designation based on where the majority of their ``recent fishing 
activity'' occurred for the relevant period analyzed.
    The economic impacts of the proposed measures would differ only 
slightly from the impacts analyzed by Amendment 7. For example, if NMFS 
had opted in early 2016 to exercise the flexibility to distribute quota 
inseason to only those vessels with recent fishing activity, the number 
of vessels that would have received inseason quota would have been 
reduced from 136 to approximately 104, based on logbook data indicating 
the number of vessels with recent fishing activity in 2015, and each 
vessel would have received more quota. This increased allocation would 
help these active vessels to remain fishing longer under fewer quota

[[Page 65991]]

constraints and would reduce the transaction costs associated with 
finding additional quota through the leasing program in years where 
leased quota is not readily available. The general goal would be to 
mitigate the type of situation that occurred in 2015, where over 25 
percent of qualified IBQ share recipients were not actively fishing 
and, of them, 86 percent were not leasing IBQ allocation to other 
vessels through the IBQ Program. Distributing even more quota to 
vessels that are not fishing and not leasing the unused quota to other 
fishery participants mid-season does not minimize constraints on 
fishing for target species, nor does it help to meet objectives of the 
IBQ program, specifically to optimize fishing opportunities for those 
target species and to maintain profitability of the pelagic longline 
fleet.
    The inactive vessels (e.g., 36 qualified IBQ share recipients in 
2015) would not receive inseason quota under the above scenario. 
Inactive vessels would not be fishing at the time, and thus would not 
have an immediate need for the quota to support their directed fishing 
operations. If they chose to fish later in the season, they would still 
have quota available for their use from their initial IBQ allocation 
for the year. Thus, the cost to inactive vessels of the proposed 
inseason distribution alternative would mainly be limited to the 
forgone ability to lease out their allocation. This cost is analyzed in 
the Initial Regulatory Flexibility Analysis. Under Amendment 7, the 
purpose of quota leasing was to facilitate directed fishing for 
Atlantic swordfish, other tunas, and other pelagic species, and to 
provide strong incentives for the vessel owners and operators to avoid 
BFT interactions, while also providing a mechanism for vessels to 
obtain more quota, if needed, given the required minimum allocation to 
fish. If IBQ share recipients do not plan to fish, the possibility of 
inseason quota transfers being distributed to active fishery 
participants might encourage them to lease their allocations to those 
participants earlier in the season. This in turn would facilitate a 
more effective IBQ leasing program and minimize any loss of potential 
IBQ leasing revenue.
    In addition, providing quota inseason to permitted vessels with 
recent fishing activity would include some vessels with permits that 
did not qualify for IBQ share in Amendment 7. Such vessels may include 
new entrants to the fishery that have participated in the IBQ Program 
by leasing IBQ in order to fish initially. Notwithstanding the defined 
scope of qualified IBQ share recipients (136), the pelagic longline 
fishery participants change over time and include vessels with Atlantic 
Tunas Longline permits that did not qualify for IBQ shares and entry-
level participants. Therefore the proposed regulation would assist new 
entry to the fishery when there is an inseason transfer of quota to the 
Longline category, or would help facilitate leasing by inactive vessels 
earlier in the season to facilitate such entry.

Request for Comments

    NMFS solicits comments on this proposed rule through October 26, 
2016. See instructions in ADDRESSES section.

Public Hearing Conference Call

    NMFS will hold a public hearing conference call and webinar on 
October 4, 2016, from 2 p.m. to 4 p.m. EDT, to allow for an additional 
opportunity for interested members of the public from all geographic 
areas to submit verbal comments on the proposed quota rule.
    The public is reminded that NMFS expects participants at public 
hearings and on conference calls to conduct themselves appropriately. 
At the beginning of the conference call, a representative of NMFS will 
explain the ground rules (all comments are to be directed to the agency 
on the proposed action; 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 
meeting so that all attending members of the public will be able to 
comment, if they so choose, regardless of the controversial nature of 
the subject matter. If attendees do not respect the ground rules, they 
will be asked to leave the conference call.

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, ATCA, and other applicable law, 
subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This action has been preliminarily determined to be categorically 
excluded from the requirement to prepare an environmental assessment 
(EA) in accordance with the National Environmental Policy Act and NOAA 
administrative order NAO 216-6 (as preserved by NAO 216-6A), subject to 
further consideration after public comment. The proposed action may by 
categorically excluded since it is a change to a previously analyzed 
and approved fishery management plan, and the proposed change will have 
no substantive effect, individually or cumulatively on the human 
environment beyond that already analyzed in the Environmental Impact 
Statement for Amendment 7 to the 2006 Consolidated Atlantic Highly 
Migratory Species Fishery Management Plan (79 FR 71510, December 2, 
2014) and in the EA for the final rule that increased the U.S. BFT 
quota (for 2015 and until changed) based on the recommendation of the 
International Commission for the Conservation of Atlantic Tunas (80 FR 
52198, August 28, 2015). Inseason quota allocations to the pelagic 
longline category do not modify the annual U.S. BFT quota nor the 
fishing mortality associated with that quota. Minor modifications of 
allocations to vessels contribute to determining when and where fishing 
mortality occurs, but do not alter the overall allowable mortality 
under the U.S. BFT quota. This action would not directly affect fishing 
effort, quotas, fishing gear, authorized species, interactions with 
threatened or endangered species, or other relevant parameters. Thus, 
there is no environmental or ecological effect different than what was 
analyzed previously. A final determination will be made prior to 
publication of the final rule for this action.
    NMFS has prepared a Regulatory Impact Review (RIR), and an Initial 
Regulatory Flexibility Analysis (IRFA), which present and analyze 
anticipated social, and economic impacts of the alternatives contained 
in this proposed rule. The list of alternatives and their analyses are 
provided in the draft RIR and are not repeated here in their entirety. 
A copy of the draft RIR prepared for this proposed rule is available 
from NMFS (see ADDRESSES).
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act (RFA, 5 U.S.C. 603 et seq.), and is included below. The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the action, why it is 
being considered, and the legal basis for this action are contained in 
the SUMMARY section of the preamble.
    The goal of the RFA is to minimize the economic burden of federal 
regulations on small entities. To that end, the RFA directs federal 
agencies to assess whether the proposed regulation is likely to result 
in significant economic impacts to a substantial number of small 
entities, and identify and analyze any significant alternatives to the 
proposed rule that accomplish the

[[Page 65992]]

objectives of applicable statutes and minimizes any significant effects 
on small entities.

Description of the Reasons Why Action is Being Considered

    Section 603(b)(1) of the RFA requires an IRFA to contain a 
description of the reasons why the action is being considered. The 
purpose of this proposed rule is, consistent with the 2006 Consolidated 
HMS FMP objectives, the Magnuson-Stevens Act, and other applicable law, 
to provide NMFS the flexibility to distribute quota inseason to all 
qualified IBQ share recipients (those who have associated their share 
with a vessel) or to permitted Atlantic Tunas Longline vessels with 
recent fishing activity whether or not they are associated with IBQ 
shares.
    Since January 1, 2015, NMFS has received requests (among other 
suggestions about the IBQ Program and management of the pelagic 
longline fishery) to distribute quota inseason to those vessels that 
are currently fishing (whether associated with IBQ shares or not) to 
optimize fishing opportunity and account for dead discards, rather than 
distributing it equally to all IBQ share recipients, some of whom end 
up neither using it, nor making it available to other vessel owners. In 
advance of and at the March 2016 HMS Advisory Panel meeting, pelagic 
longline fishery participants expressed concerns about the availability 
of IBQ allocation as implemented under Amendment 7. Longline fishery 
participants have stated that, while they were able to obtain 
sufficient IBQ allocation by leasing it under the conditions that 
applied in 2015, those conditions were temporary. They are concerned 
that, as additional requirements now apply beginning in 2016, the IBQ 
Program could negatively impact vessel operations and finances given 
the pricing of IBQ, the distribution of quota among permit holders as 
implemented by Amendment 7, and the behavior of some permit holders 
who, for example, they say hold on to IBQ for the entire season without 
participating in the fishery or engaging in leasing. Longline fishery 
participants requested that NMFS take further steps to provide more 
access to quota for those vessels with recent fishing activity to 
reduce the dependence on qualified IBQ share recipients, some of whom 
are not participating in the fishery or engaging in leasing.
    After looking at the issues raised by the fishery participants and 
at trends in IBQ leasing and utilization for 2015, it is apparent that 
additional flexibility is needed regarding the distribution of inseason 
transfers of BFT quota within the Longline category to assist NMFS in 
providing reasonable opportunities to fish for target species under the 
limits imposed by the IBQ Program and to optimize distribution of BFT 
quota transferred inseason to the Longline category. To account for the 
highly variable nature of the BFT fishery and maintain flexibility in 
the regulations, NMFS is considering this action, which provides 
flexibility in the quota system.

Statement of the Objectives of, and Legal Basis for, the Proposed Rule

    Section 603(b)(2) of the RFA requires the IRFA to contain a 
statement of the objectives and legal basis for the proposed rule. The 
objective of this proposed rule is to provide additional flexibility 
regarding the distribution of inseason BFT quota transfers to the 
Longline category in order to facilitate the management of Atlantic HMS 
resources in a manner that maximizes resource sustainability and 
fishing opportunity, while minimizing, to the greatest extent possible, 
the socioeconomic impacts on affected fisheries.
    The legal basis for this proposed rule stems from the dual 
authority of the Magnuson-Stevens Act and ATCA. Under the Magnuson-
Stevens Act, NMFS must, consistent with ten National Standards, manage 
fisheries to maintain optimum yield (OY) by rebuilding overfished 
fisheries and preventing overfishing. Under ATCA, NMFS is authorized to 
promulgate regulations as may be necessary and appropriate to carry out 
binding recommendations of ICCAT. Additionally, any management measures 
must be consistent with other domestic laws including the National 
Environmental Policy Act (NEPA), the Endangered Species Act (ESA), the 
Marine Mammal Protection Act (MMPA), and the Coastal Zone Management 
Act (CZMA).

Description and Estimate of the Number of Small Entities to Which the 
Proposed Rule Would Apply

    Section 603(b)(3) of the RFA requires agencies to provide an 
estimate of the number of small entities to which the rule would apply. 
The Small Business Administration (SBA) has established size criteria 
for all major industry sectors in the United States, including fish 
harvesters. SBA's regulations provide that an agency may develop its 
own industry-specific size standards after consultation with Advocacy 
and an opportunity for public comment (see 13 CFR 121.903(c)). Under 
this provision, NMFS may establish size standards that differ from 
those established by the SBA Office of Size Standards, but only for use 
by NMFS and only for the purpose of conducting an analysis of economic 
effects in fulfillment of the agency's obligations under the RFA. To 
utilize this provision, NMFS must publish such size standards in the 
Federal Register. In a final rule effective on July 1, 2016 (80 FR 
81194, December 29, 2015), NMFS established a small business size 
standard of $11 million in annual gross receipts for all businesses in 
the commercial fishing industry (NAICS 11411) for RFA compliance 
purposes. NMFS considers all HMS Atlantic Tunas Longline permit holders 
(280 as of October 2015) to be small entities because these vessels 
have reported annual gross receipts of less than $11 million for 
commercial fishing. The average annual gross revenue per pelagic 
longline vessel was estimated to be $187,000 based on the 170 vessels 
that fished between 2006 and 2012, and that produced an estimated $31.8 
million in total revenue annually. The maximum annual revenue for any 
pelagic longline vessel between 2006 and 2015 was $1.9 million, well 
below the NMFS small business size threshold of $11 million in gross 
receipts for commercial fishing.
    NMFS has determined that this proposed rule would apply to the 
small businesses associated with the 136 Atlantic Tunas Longline 
permits with IBQ shares and the additional permitted Atlantic Tunas 
Longline vessels that fish with quota leased through the IBQ Program. 
The impacts on these small businesses are described below in the 
discussion of alternatives considered. NMFS has determined that this 
action would not likely directly affect any small organizations or 
small government jurisdictions defined under the RFA.

Description of the Projected Reporting, Record-Keeping, and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities Which Would Be Subject to the 
Requirements of the Report or Record

    Section 603(b)(4) of the RFA requires agencies to describe any new 
reporting, record-keeping and other compliance requirements. This 
proposed rule does not contain any new collection of information, 
reporting, or record-keeping requirements.

Identification of All Relevant Federal Rules Which May Duplicate, 
Overlap, or Conflict With the Proposed Rule

    Under section 603(b)(5) of the RFA, agencies must identify, to the 
extent practicable, relevant Federal rules

[[Page 65993]]

which duplicate, overlap, or conflict with the proposed action. 
Fishermen, dealers, and managers in these fisheries must comply with a 
number of international agreements, domestic laws, and other FMPs. 
These include, but are not limited to, the Magnuson-Stevens Act, ATCA, 
High Seas Fishing Compliance Act, MMPA, ESA, NEPA, Paperwork Reduction 
Act, and CZMA. This proposed action has been determined not to 
duplicate, overlap, or conflict with any of these statutes or Federal 
rules.

Description of Any Significant Alternatives to the Proposed Rule That 
Accomplish the Stated Objectives of the Applicable Statutes and That 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities

    One of the requirements of an IRFA is to describe any alternatives 
to the proposed rule which accomplish the stated objectives and which 
minimize any significant economic impacts. These impacts are discussed 
below. Additionally, the RFA (5 U.S.C. 603(c)(1)-(4)) lists four 
general categories that would assist an agency in the development of 
significant alternatives. These categories of alternatives are: (1) 
Establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) clarification, consolidation, or simplification of 
compliance and reporting requirements under the rule for such small 
entities; (3) use of performance rather than design standards; and (4) 
exemptions from coverage of the rule, or any part thereof, for small 
entities.
    In order to meet the objectives of this proposed rule, consistent 
with the Magnuson-Stevens Act and ATCA, NMFS cannot establish differing 
compliance requirements for small entities or exempt small entities 
from compliance requirements. Thus, there are no alternatives discussed 
that fall under the first and fourth categories described above. As the 
IBQ Program was designed to adhere to performance standards, 
modifications to the regulations implementing the IBQ Program simply 
make adjustments to the administration of those underlying performance 
standards. NMFS analyzed several different alternatives to this action. 
Following are the rationales that NMFS used to determine the preferred 
alternative for achieving the desired objectives.
    The first alternative is the ``no action'' (status quo) 
alternative. The second alternative, the preferred alternative, would 
provide NMFS the flexibility to allocate quota inseason to qualified 
IBQ share recipients (those who have associated their share with a 
vessel) or to permitted Atlantic Tunas Longline vessels with recent 
fishing activity, whether or not they are associated with IBQ shares. 
The third alternative would provide NMFS the flexibility to allocate 
quota inseason to qualified IBQ share recipients with recent fishing 
activity or IBQ leasing activity. The economic impacts of these three 
alternatives are detailed below.
    Under all three alternatives, NMFS would continue to consider the 
regulatory determination criteria for inseason or annual adjustments 
under 50 CFR 635.27(a)(8), and if NMFS decided that inseason allocation 
to the Longline category was warranted to increase the amount of quota 
available to pelagic longline vessels, NMFS would allocate additional 
quota. The difference among the alternatives is in the specific 
Atlantic Tunas Longline permit holders that would receive distribution 
of inseason BFT quota.
    Under the ``no action'' alternative, NMFS would distribute the 
transferred quota in equal amounts to all 136 qualified IBQ share 
recipients, which include vessels actively fishing and vessels not 
actively fishing. This is the manner in which NMFS conducted two past 
inseason transfers from the Reserve to the Longline category in July 
2015 and January 2016 (80 FR 45098, July 29, 2015; 81 FR 19, January 4, 
2016). For each of these 34 mt quota transfers, 0.25 mt (551 lb) of IBQ 
were distributed equally to each of the 136 qualified IBQ share 
recipients under Amendment 7. IBQ allocation was distributed via the 
electronic IBQ system to the vessel accounts with permits with IBQ 
shares associated with a vessel. For those permits with IBQ shares that 
were not associated with a vessel at the time of the quota transfer, 
the IBQ is not usable by the permit holder (i.e., may not be leased or 
used to account for BFT) until the permit is associated with a vessel. 
Based on the average 2015 IBQ lease price of $3.34 per pound, the 
economic value of such an inseason transfer of 551 lb per vessel would 
be approximately $1,840 per vessel owner under the ``no action'' 
alternative.
    Under the preferred alternative, NMFS would have the flexibility to 
allocate quota inseason either to each of the 136 qualified IBQ share 
recipients or to all permitted Atlantic Tunas Longline vessels with 
recent fishing activity. In 2015, there were 104 active pelagic 
longline vessels (based on logbook data). If NMFS assumes, for example, 
a future inseason transfer of 34 mt distributed equally among vessels 
with recent fishing activity, each of those 104 active vessels would 
receive 0.327 mt (721 lb) under the preferred alternative. Based on the 
average 2015 IBQ lease price of $3.34 per pound, the economic value of 
such an inseason transfer of 721 lb per vessel would be approximately 
$2,408 per vessel owner under the preferred alternative. Active vessel 
owners would receive $568 more in value (31 percent more quota) than 
under the ``no action'' (status quo) alternative.
    This increased allocation would help these active vessels to remain 
fishing longer under fewer quota constraints and reduce the transaction 
costs associated with finding the same amount of additional quota. The 
qualified IBQ share recipients with no fishing activity (36 in 2015) 
would not receive the 551 lb of IBQ worth approximately $1,840 per 
vessel that they could have received under the status quo alternative 
if they were to lease their quota to other permit holders. Thus, the 
cost of this alternative would mainly be limited to the forgone ability 
to lease out allocation that they otherwise would have received. Under 
Amendment 7, the purpose of leasing is to accommodate various levels of 
unintended catch of bluefin and to facilitate directed fishing for 
Atlantic swordfish, other tunas, and other pelagic species. The few 
Atlantic Tunas Longline vessels that fished that were not associated 
with IBQ shares but that leased allocation from qualified IBQ share 
recipients (4 in 2015) would receive quota under the preferred 
alternative worth approximately $2,408 per vessel. Such an inseason 
transfer would help facilitate participation by new entrants to the 
fishery by lowering their costs to obtain quota.
    Under the third alternative, NMFS would have the flexibility to 
distribute quota inseason to qualified IBQ share recipients with recent 
fishing activity or qualified IBQ share recipients that leased out 
quota to other Atlantic Tunas Longline permit holders. This differs 
from the preferred alternative in two key ways. First, under the third 
alternative, only Atlantic Tunas Longline permit holders with recent 
activity would receive an inseason transfer, while under the preferred 
alternative all permitted Atlantic Tunas Longline vessels with recent 
activity would receive an inseason transfer. Secondly, under the third 
alternative, relevant activity would include IBQ leasing activity in 
addition to the recent fishing activity required under the preferred 
alternative. In 2015, of the 104 pelagic longline vessels with recent 
fishing activity, 100 vessels were associated with IBQ shares that had 
recent fishing

[[Page 65994]]

activity (four vessels were not associated with IBQ shares in 2015) and 
5 vessels were associated with IBQ shares that did not fish but did 
lease their allocation to other vessels. If NMFS assumes a future 
inseason transfer of 34 mt, each of those 105 vessels associated with 
IBQ shares (100 with recent fishing activity and 5 that leased IBQ 
allocation) would receive 0.324 mt (714 lb) under the third 
alternative. Based on the average 2015 IBQ lease price of $3.34 per 
pound, the economic value of such an inseason transfers of 714 lb per 
vessel would be approximately $2,385 per vessel owner. Vessels 
associated with IBQ shares with recent fishing activity or IBQ leasing 
activity would receive $545 more in value (30 percent more quota) than 
under the ``no action'' (status quo) alternative. This is $23 less per 
vessel than under the preferred alternative. In addition, under the 
third alternative, fewer vessels with recent fishing activity would 
receive quota and new entrants would not receive quota. For these 
reasons, NMFS does not prefer the third alternative.

List of Subjects in 50 CFR Part 635

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

    Dated: September 15, 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. In Sec.  635.15, revise paragraph (b) introductory text, and add 
paragraph (b)(9) to read as follows:


Sec.  635.15  Individual bluefin tuna quotas.

* * * * *
    (b) IBQ allocation and usage. An initial IBQ quota allocation is 
the amount of bluefin tuna (whole weight) in metric tons (mt) that a 
qualified IBQ share recipient (i.e., a share recipient who has 
associated their permit with a vessel) is allotted to account for 
incidental catch of bluefin tuna during a specified calendar year. 
Unless otherwise required under paragraph (b)(5) of this section, an 
Atlantic Tunas Longline permitted vessel's initial IBQ allocation for a 
particular year is derived by multiplying its IBQ share (percentage) by 
the initial Longline category quota for that year. NMFS may transfer 
additional quota to the Longline category inseason as authorized under 
Sec.  635.27(a), and in accordance with Sec.  635.27(a)(8) and (9), and 
may distribute the transferred quota within the Longline category in 
accordance with paragraph (b)(9) of this section.
* * * * *
    (9) Distribution of additional Longline category quota transferred 
inseason. NMFS may distribute the quota that is transferred inseason to 
the Longline category either to all IBQ share recipients as described 
under paragraph (k)(1) of this section or to permitted Atlantic Tunas 
Longline vessels that are determined by NMFS to have recent fishing 
activity based on participation in the pelagic longline fishery. In 
making this determination, NMFS will consider factors for the subject 
and previous year such as the number of BFT landings and dead discards, 
the number of IBQ lease transactions, the average amount of IBQ leased, 
the average amount of quota debt, the annual amount of IBQ allocation, 
any previous inseason allocations of IBQ, the amount of BFT quota in 
the Reserve category (at Sec.  635.27(a)(7)(i)), the percentage of BFT 
quota harvested by the other quota categories, the remaining number of 
days in the year, the number of active vessels fishing not associated 
with IBQ share, and the number of vessels that have incurred quota debt 
or that have low levels of IBQ allocation. NMFS will determine if a 
vessel has recent fishing activity based upon the best available 
information for the subject and previous year, such as logbook, vessel 
monitoring system, or electronic monitoring data. Any distribution of 
quota transferred inseason will be equal among selected recipients; 
when inseason distribution is only to Atlantic Tunas Longline permit 
holders with IBQ shares, it will therefore not be based on the initial 
IBQ share determination as specified in paragraph (k)(2) of this 
section.
    (i) Regional designations described in paragraph (b)(2) of this 
section will be applied to inseason quota distributed to IBQ share 
recipients.
    (ii) For permitted Atlantic Tunas Longline vessels with recent 
fishing activity that are not qualified IBQ share recipients, regional 
designations of Atlantic (ATL) or Gulf of Mexico (GOM) will be applied 
to the distributed quota based on best available information regarding 
geographic location of sets as reported to NMFS during the period of 
fishing activity analyzed above in this paragraph, with the designation 
based on where the majority of that activity occurred.
* * * * *
[FR Doc. 2016-22902 Filed 9-23-16; 8:45 am]
 BILLING CODE 3510-22-P