[Federal Register Volume 81, Number 250 (Thursday, December 29, 2016)]
[Rules and Regulations]
[Pages 95903-95909]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31357]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 160527473-6999-02]
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: Final rule.

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SUMMARY: NMFS modifies the Atlantic highly migratory species (HMS) 
regulations regarding the distribution of inseason Atlantic bluefin 
tuna (BFT) quota transfers to the Longline category. This final rule 
provides NMFS the ability 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. This action is 
necessary to optimize fishing opportunity in the directed pelagic 
longline fishery for target species such as tuna and swordfish and to 
improve the functioning of the IBQ Program and its leasing provisions 
consistent with the objectives of Amendment 7 to the 2006 Consolidated 
HMS Fishery Management Plan (FMP).

DATES: Effective on January 28, 2017.

ADDRESSES: Supporting documents, including the Regulatory Impact Review 
and Final Regulatory Flexibility Analysis, may be downloaded from the 
HMS Web site at www.nmfs.noaa.gov/sfa/hms/.

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) and implemented by NMFS 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

    Background information about the need for additional flexibility 
within the IBQ Program for distribution of BFT quota transferred to the 
Longline category inseason was provided in the preamble to the proposed 
rule (81 FR 65988, September 26, 2016) and most of that information is 
not repeated here.
    Vessels fishing with pelagic longline gear, which may only catch 
BFT incidentally while fishing for target species (primarily swordfish 
and yellowfin tuna), hold limited access Atlantic Tunas Longline 
permits and utilize Longline category BFT 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-to-
target species ratios from 2006 through 2012. NMFS currently 
distributes and manages the Longline category BFT quota via the IBQ 
Program.
    The specific objectives of the IBQ Program are 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 through the IBQ electronic system. Every vessel must have a 
minimum amount of quota allocation to fish (e.g., 0.25 metric tons (mt) 
whole weight (ww) (551 lb ww) for a trip in the Gulf of Mexico and 
0.125 mt ww (276 lb ww) for a trip in the Atlantic), whether obtained 
through shares or by leasing, and every vessel must individually 
account for its BFT landings and dead discards through the IBQ 
electronic system.
    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 these inseason actions, NMFS 
distributed the transferred quota in equal amounts to 136 qualified IBQ 
share recipients. During 2015, 36 of these 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, those 31 IBQ 
allocations went unused for the year and expired at year's end.
    NMFS received requests, among other suggestions about the IBQ 
Program and management of the pelagic longline fishery, that when quota 
is transferred inseason to the Longline category, NMFS distribute it 
only to those vessels that are currently fishing (whether

[[Page 95904]]

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 currently neither fish with pelagic 
longline gear nor lease quota to other active Longline fishery 
participants. The proposed rule considered and analyzed that approach 
and invited public comment.
    This final rule modifies the regulations to specify that 
distribution of quota transferred to the Longline category inseason 
(i.e., quota beyond the baseline Longline category quota that is 
distributed to qualified IBQ share recipients according to the three 
shareholder percentages implemented through Amendment 7) may be either 
to all qualified IBQ share recipients or only to permitted Atlantic 
Tunas Longline vessels with recent fishing activity whether they are 
associated with IBQ shares or not. NMFS will review information from 
logbook, vessel monitoring system (VMS), or electronic monitoring data 
to determine whether any fishing activity has occurred over the course 
of the subject and previous year thus indicating that there is ``recent 
fishing activity,'' as discussed in more detail below. For example, for 
inseason transfers in 2017, NMFS will examine fishing activity data for 
2016 and 2017. Providing flexibility in the quota system and 
maintaining flexibility of the regulations to account for the highly 
variable nature of the BFT interactions in the pelagic longline fishery 
was an objective of Amendment 7 (See, e.g., Amendment text at 79 FR 
71510 and 71559), and this adjustment to the regulations will further 
that objective.
    In deciding whether to transfer additional quota to the Longline 
category inseason from the Reserve category, NMFS would first consider 
the existing 14 regulatory determination criteria for inseason or 
annual adjustments at 50 CFR 635.27(a)(8), including the need to 
``optimize fishing opportunity.''
    Next, if NMFS decides to transfer quota to the Longline category 
inseason, NMFS will then decide whether to distribute that quota to all 
qualified IBQ share recipients or only to permitted Atlantic Tunas 
Longline vessels with recent fishing activity whether or not the vessel 
is associated with IBQ shares. This decision will be based on 
information 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. 
NMFS will determine 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 appropriate 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 and as anticipated by Amendment 7, 
distribution may be to all of the qualified IBQ share recipients.
    If NMFS distributes the inseason quota to all qualified IBQ share 
recipients, those qualified IBQ share recipients will receive equal 
amounts of the quota transferred.
    If NMFS distributes inseason quota only to those vessels with 
recent fishing activity, vessels with ``recent fishing activity'' in 
the pelagic longline fishery will be based upon available information 
such as logbook, VMS, dealer, or electronic monitoring data for the 
subject and previous year. Any vessel activity in the pelagic longline 
fishery during this date range will be sufficient to qualify as 
``recent fishing activity.'' The specific data analyzed for this date 
range in a given inseason action will be those available when 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 distributes quota to all qualified IBQ recipients or 
to only those permitted vessels with recent fishing activity, quota 
transferred inseason will be distributed equally to the vessel accounts 
associated with the relevant vessels 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 will assign 
the distributed quota a regional designation based on where the 
majority of the vessel's ``recent fishing activity'' occurred for the 
relevant period analyzed.

Response to Comments

    NMFS received five written comments on the proposed rule during the 
comment period, three of which expressed support for the rule as 
proposed, particularly the flexibility in distribution of inseason BFT 
quota and efficient use of quota through inseason distribution to 
vessels with recent fishing activity, including newly-permitted 
vessels. Two written comments expressed qualified support for the 
proposed flexibility but suggested modified approaches to quota 
disbursement. All written comments can be found at http://www.regulations.gov/. The comments are summarized below by topic 
together with NMFS' responses.
    Comment 1: All comments supported the objective of, and rationale 
for, the proposed regulatory changes to the IBQ Program. Specifically, 
comments supported the objective of regulations that would allow NMFS 
to optimize the distributions of inseason Atlantic BFT quota transfers 
to the Longline category by distributing inseason BFT quota either to 
all qualified IBQ share recipients or only to those permitted Atlantic 
Tunas Longline vessels with recent fishing activity, whether or not 
they are associated with IBQ shares. Comments supported the underlying 
rationale of the proposed measure, which they expressed as providing 
reasonable fishing opportunities for pelagic longline vessels in the 
context of the constraints of the IBQ Program. Some commenters 
specifically supported the concept of distributing inseason quota only 
to active vessels in order to increase efficiency of quota use among 
vessels, allow the distribution of quota to new participants in the 
fishery, and enable the potential for larger amounts of quota for each 
permit holder. One comment noted that the proposed regulations 
contribute to balancing the objective of optimizing fishing opportunity 
and maintaining

[[Page 95905]]

profitability with the objective of limiting BFT landings and dead 
discards.
    Response: NMFS agrees that the regulatory change to the IBQ Program 
will facilitate accounting for BFT bycatch by permitted Atlantic Tunas 
Longline vessels actively participating in the HMS pelagic longline 
fishery and support optimizing the distribution of quota among vessels. 
When transferring quota from the Reserve category to the Longline 
category inseason, NMFS will consider specific factors in the fishery 
and determine whether distribution of inseason quota (in the Longline 
category) to all qualified IBQ share recipients or only to those 
permitted Atlantic Tunas Longline vessels with recent fishing activity 
will best support the objectives of the FMP. Distribution of inseason 
quota only to active vessels (if the total number of active vessels is 
a smaller number of vessels than all qualified vessels) may result in a 
larger amount of quota for each recipient vessel. A larger inseason 
distribution would help these active vessels to remain fishing longer 
under fewer quota 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. NMFS agrees that the 
regulation will be consistent with the objectives of the IBQ Program, 
which include the objective: ``Balance the objective of limiting BFT 
landings and dead discards with the objective of optimizing fishing 
opportunities and maintaining profitability''.
    Comment 2: Three comments further supported the specifics of the 
proposed regulatory changes, including the data and timeframe that will 
be analyzed to determine whether ``recent fishing activity'' has 
occurred and equal distribution of inseason BFT quota among the 
recipients.
    One commenter was opposed to the aspect of the proposed rule that 
considers a vessel to be ``active'' at any level of activity, without 
any threshold amount of fishing activity specified. The commenter was 
concerned that a vessel might ``game the system'' and deploy a single 
longline set on a single trip, with the goal of establishing a minimal 
level of fishing activity that would subsequently enable the vessel to 
be a recipient of an inseason distribution of BFT quota. The commenter 
suggested a meaningful increase in the number of pelagic longline sets 
required, and suggested that the amount of quota distributed to each 
vessel should vary depending upon the amount of pelagic longline sets 
completed. For example, if the vessel completed 1 to 25 sets during the 
previous year, they would be distributed a 0.25 share of BFT quota, and 
if the vessel completed 26 to 65 sets during the previous year, they 
would be distributed a 0.50 share of BFT quota, and so on. The 
commenter also suggested that inactive IBQ share recipients that have 
leased the full amount of their allocation to other Atlantic Tunas 
Longline vessels should receive inseason quota.
    Response: NMFS proposed a simple method of defining what an active 
vessel is and distributing inseason quota equally among active vessels 
because inseason distributions of quota are likely to be relatively 
small amounts of quota compared to annual allocations of IBQ to share 
recipients. The use of formulas such as that proposed by the commenter 
to distribute quota may result in amounts distributed that are less 
than the minimum share amount required to fish. Distributing such small 
amounts of quota to vessels inseason might have little beneficial 
impact on fishing operations and could render the transfer largely 
meaningless for many vessels. With respect to setting a threshold 
number of pelagic longline sets as a criterion for receiving inseason 
allocation, all vessels fishing with pelagic longline gear must possess 
the minimum amount of IBQ (0.25 mt ww (551 lb ww) in the Gulf of Mexico 
and 0.125 mt ww (276 lb ww) in the Atlantic) before they can fish, and 
this requirement applies regardless of the level of fishing activity. 
Although it is possible that a vessel could conduct a single longline 
set with the intention of becoming eligible for a potential small 
future inseason quota distribution, it is likely that there would be 
few instances of such behavior because the potential costs and 
uncertainty of any benefit associated with such behavior should serve 
as adequate disincentive for ``gaming the system.'' Furthermore, the 
possibility that active vessels may directly receive quota from the 
Agency when the leasing system is not functioning effectively, may 
encourage otherwise-inactive vessel owners to more seriously consider 
leasing out their quota earlier in the season through the IBQ system, 
rather than waiting to see if leasing prices increase later in the 
season. Even if limited instances of such activity occurred, NMFS does 
not believe that such action would undercut the effectiveness of the 
regulatory change, which is largely aimed at limiting the amount of 
quota that could be distributed to vessels that have no fishing 
activity whatsoever.
    The commenter also suggests that the amount of quota distributed 
inseason should be based on the level of vessel activity, suggesting 
that the amount of quota distributed to each vessel should vary 
depending upon the amount of pelagic longline sets completed. At the 
beginning of the year, IBQ share recipients are allocated different 
amounts of annual IBQ, based upon one of the three defined share 
percentages associated with the Atlantic Tunas Longline permit, which 
was based on a formula that considered many factors through the 
Amendment 7 process, including indicators of vessel activity. NMFS 
determined that additional distributions of quota inseason should be in 
equal amounts largely for simplicity of administration and given the 
small amounts of quota involved. An inseason quota distribution that is 
based upon a formula would be more complex to implement than an equal 
distribution and could diminish the benefits if implementation of the 
quota transfer and distribution took a prolonged amount of time. 
Therefore, NMFS finalizes as proposed the provision that will 
distribute inseason quota equally among selected recipients.
    Finally, the commenter suggested that inactive IBQ share recipients 
that have leased the full amount of their allocation to other Atlantic 
Tunas Longline vessels should receive inseason quota distributions. 
Under the conditions at this time, the agency prefers its simpler 
proposed approach for distributing the small amounts of quota that 
typically are transferred inseason. By distributing the quota 
transferred inseason equally to active vessels inseason additional 
trips may be possible in years that leasing is not occurring as 
anticipated by Amendment 7. NMFS notes, however, that it will further 
consider this suggested approach as an incentive for those who fully 
participate in the leasing program. This could be included in the 
comprehensive three-year review of the IBQ Program that is required by 
the Magnuson-Stevens Act and the 2006 Consolidated HMS FMP and that 
NMFS plans to initiate in 2017.
    Comment 3: One commenter sought changes to other aspects of the IBQ 
Program regulations, such as modifying the IBQ rules to allow the 
carryover of unused quota from one year to the next, and asked that 
NMFS consider changes to annual allocation of IBQ (i.e., distribution 
of the baseline Longline category quota).
    Response: The suggested changes to the regulations were not among 
the specific management measures considered by the proposed rule and 
are beyond the scope of this rulemaking. The scope of this rulemaking 
addressed only inseason transfer criteria

[[Page 95906]]

regulations; provisions regarding carry-forward and annual allocation 
of IBQ were established in Amendment 7 and no changes to those 
provisions were considered in this action. NMFS may consider changes to 
these provisions and additional topics related to the management of the 
pelagic longline fishery in future rulemakings and in the comprehensive 
three-year review of the IBQ Program.
    Comment 4: One comment stated that the IBQ Program, as implemented 
under Amendment 7, is not consistent with several requirements of the 
Magnuson-Stevens Act including: The IBQ Program does not provide 
pelagic longline fishermen with a reasonable opportunity to harvest the 
Longline category BFT quota; the IBQ Program does not minimize 
disadvantages to U.S. fishermen; utilization of BFT quota under the IBQ 
Program could result in unfair and inequitable allocation of quota to 
pelagic longline fishermen; the IBQ Program does not provide fair and 
equitable distribution of access privileges; and the IBQ Program, as a 
limited access privilege program (LAPP), does not promote fishing 
safety, fishery conservation and management, or social and economic 
benefits.
    Response: This comment challenges the implementation of Amendment 7 
to the 2006 Consolidated HMS FMP, which was adopted through separate 
notice and comment rulemaking finalized in December 2014. The issues 
raised in this comment are beyond the scope of this rulemaking. NMFS 
notes that in litigation brought against the Secretary of Commerce 
following issuance of the final rule for Amendment 7, pelagic longline 
fishermen and dealers alleged that implementation of Amendment 7, 
including the IBQ Program, failed to comply with provisions of the 
Magnuson-Stevens Act, similar to the issues raised in this comment. The 
federal district court for the Eastern District of North Carolina 
rejected Plaintiffs' claims and upheld Amendment 7 as consistent with 
the Magnuson-Stevens Act and other applicable law (see Willie R. 
Etheridge Seafood Co. v. Pritzker, 2016 WL 1126014 (E.D.N.C., Mar. 21, 
2016)).

Classification

    The NMFS Assistant Administrator has determined that the final rule 
is consistent with the 2006 Consolidated HMS FMP and its amendments, 
the Magnuson-Stevens Act, ATCA, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This action is 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). This action may be categorically 
excluded since it is a change to a previously analyzed and approved 
fishery management plan, and the 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 (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 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 may contribute somewhat 
to determining when fishing mortality occurs but not in any meaningful 
way that would change the environmental impacts given the small amounts 
of quota at issue and the fact that such transfers do not alter the 
overall allowable mortality under the U.S. BFT quota. Furthermore, this 
action will not directly affect fishing effort, fishing gear, 
interactions with threatened or endangered species, or other relevant 
behaviors that could have additional environmental impacts. Thus, there 
is no environmental or ecological effect different than what was 
analyzed previously.
    NMFS has prepared a Regulatory Impact Review (RIR), and a Final 
Regulatory Flexibility Analysis (FRFA), which present and analyze 
anticipated social, and economic impacts of the alternatives contained 
in this rule. The list of alternatives and their analyses are provided 
in the RIR and are not repeated here in their entirety. A copy of the 
RIR prepared for this final rule is available from NMFS (see 
ADDRESSES).
    A FRFA was prepared, as required by section 604 of the Regulatory 
Flexibility Act (RFA, 5 U.S.C. 604 et seq.), and is included below. The 
FRFA describes the economic impact this final rule will have on small 
entities. A description of the action, why it is being implemented, 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 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 rule that 
accomplish the objectives of applicable statutes and minimizes any 
significant effects on small entities.

Statement of the Need for and Objectives of the Rule

    Section 604(a)(1) of the RFA requires a FRFA to contain a statement 
of the need for and objectives of the rule. The purpose of this 
rulemaking, consistent with the 2006 Consolidated HMS FMP objectives, 
the Magnuson-Stevens Act, and other applicable law, is to provide NMFS 
additional flexibility when distributing quota inseason to the Longline 
category. Through this final rule, NMFS may distribute quota inseason 
either 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 
have recent fishing activity (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 through the IBQ leasing program. 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, 
however, that as additional requirements began to apply 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

[[Page 95907]]

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 became apparent 
that additional options are 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, to optimize distribution 
of BFT quota transferred inseason to the Longline category, and to 
encourage proper functioning of the IBQ leasing program as anticipated 
under Amendment 7. To account for the highly variable nature of the BFT 
caught in the pelagic longline fishery and maintain flexibility in the 
regulations, this action provides NMFS with an additional option when 
distributing quota inseason to the Longline category.
    The objective of this rule is to provide additional flexibility 
regarding the distribution of inseason Atlantic 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.

Summary of the Issues Raised by the Public Comments in Response to the 
Initial Regulatory Flexibility Analysis (IRFA), a Summary of the 
Assessment of the Agency of Such Issues, and a Statement of Any Changes 
Made in the Rule as a Result of Such Comments

    Section 604(a)(2) of the RFA requires a summary of the significant 
issues raised by the public comments in response to the IRFA, a summary 
of the Agency's assessment of such issues, and a statement of any 
changes made in the rule as a result of such comments. NMFS received 
five written comments on the proposed rule during the comment period, 
three of which expressed support for the proposed flexibility in 
distribution of inseason BFT quota and for efficient use of quota 
through inseason distribution to vessels with recent fishing activity, 
including new vessels. Two written comments expressed qualified support 
for the proposed measures but suggested modified approaches to quota 
disbursement (i.e., a tiered approach based on previous year activity 
that would not disburse inseason quota equally among recipients but 
disburse varying amounts based on levels of fishing activity). None of 
the comments addressed the economic impacts of the proposed measure. No 
changes were made to the rule as a result of the public comments.
    Section 604(a)(3) of the RFA requires the Agency to respond to any 
comments filed by the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) in response to the proposed rule, and a detailed 
statement of any change made in the rule as a result of such comments. 
NMFS did not receive any comments from the Chief Counsel for Advocacy 
of the SBA in response to the proposed rule.

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

    Section 604(a)(4) of the RFA requires agencies to provide an 
estimate of the number of small entities to which the rule would apply. 
The 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 that became effective on July 1, 2016 (80 FR 81194, December 29, 
2015), NMFS established a small business size standard of $11 million 
or less 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 active pelagic longline vessel was 
estimated to be $187,000 based on the 170 active vessels 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 rule will 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 will 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 Rule, Including an Estimate of the 
Classes of Small Entities Which Will Be Subject to the Requirements of 
the Report or Record

    Section 604(a)(5) of the RFA requires Agencies to describe any new 
reporting, record-keeping and other compliance requirements. This rule 
does not contain any new collection of information, reporting, or 
record-keeping requirements.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes, Including a Statement of the 
Factual, Policy, and Legal Reasons for Selecting the Alternative 
Adopted in the Final Rule and the Reason That Each One of the Other 
Significant Alternatives to the Rule Considered by the Agency Which 
Affect Small Entities Was Rejected

    One of the requirements of a FRFA is to describe any alternatives 
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 of ``significant'' alternatives 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 final 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

[[Page 95908]]

are no alternatives discussed that fall under the first and fourth 
categories described above. As for the second category, the objective 
of this rule is to provide additional flexibility regarding the 
distribution of inseason Atlantic BFT quota transfers to the Longline 
category, and therefore does not impact or change compliance and 
reporting requirements for small entities. The IBQ Program was designed 
to adhere to performance standards, the third category above; 
modifications to the regulations implementing the IBQ Program simply 
make adjustments to the administration of those underlying performance 
standards. NMFS analyzed several different alternatives in this action 
and the rationale that NMFS used to determine the alternative for 
achieving the desired objectives is described below.
    The first alternative is the ``no action'' (status quo) 
alternative. The second alternative, the selected alternative, will 
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 any 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 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 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 selected alternative, NMFS may 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 selected alternative. Based on the average 2015 IBQ lease 
price of $3.34 per pound, the economic value of such an inseason 
transfers of 721 lb per vessel would be approximately $2,408 per vessel 
owner under the selected 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 will 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 will 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 BFT 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 
(four in 2015) will receive quota under the selected alternative worth 
approximately $2,408 per vessel. Such an inseason transfer will 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 any 
recent fishing activity or qualified IBQ share recipients that leased 
out quota to other Atlantic Tunas Longline permit holders. This differs 
from the selected alternative in two key ways. First, under the third 
alternative, only qualified IBQ share recipients with recent activity 
would receive an inseason transfer, while under the selected 
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 selected 
alternative. In 2015, of the 104 pelagic longline vessels with recent 
fishing activity, 100 vessels were associated with IBQ shares (four 
vessels were not associated with IBQ shares in 2015). In addition, 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 transfer 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 selected 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 
did 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: December 22, 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 amended 
as follows:

[[Page 95909]]

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 any 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 any 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. 2016-31357 Filed 12-28-16; 8:45 am]
BILLING CODE 3510-22-P