[Federal Register Volume 83, Number 197 (Thursday, October 11, 2018)]
[Rules and Regulations]
[Pages 51391-51399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-22034]
[[Page 51391]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No. 180117042-8884-02]
RIN 0648-BH54
Atlantic Highly Migratory Species; Atlantic Bluefin Tuna and
Northern Albacore Tuna Quotas; Atlantic Bigeye and Yellowfin Tuna Size
Limit Regulations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; notification of adjustment and recalculation of
quotas.
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SUMMARY: In this final rule, NMFS modifies the baseline annual U.S.
quota and subquotas for Atlantic bluefin tuna (BFT) and the baseline
annual U.S. North Atlantic albacore (northern albacore or NALB) quota
to reflect quotas adopted by the International Commission for the
Conservation of Atlantic Tunas (ICCAT). NMFS also updates regulatory
language on school BFT to reflect current ICCAT requirements. NMFS also
makes a minor change to the Atlantic tunas size limit regulations to
address retention, possession, and landing of bigeye and yellowfin tuna
damaged through predation by sharks and other marine species. This
action is necessary to implement binding recommendations of the
International Commission for the Conservation of Atlantic Tunas
(ICCAT), as required by the Atlantic Tunas Convention Act (ATCA), and
to achieve domestic management objectives under the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act). NMFS
also provides notice of adjustment of the 2018 BFT Reserve category
quota and the 2018 NALB baseline quota to account for the available
underharvest from 2017, consistent with the Atlantic tunas quota
regulations. NMFS further recalculates the BFT Purse Seine and Reserve
category quotas that were announced earlier this year, in accordance
with the quotas in this final rule.
DATES: Effective October 10, 2018.
ADDRESSES: Supporting documents, including the Environmental Assessment
(EA), Regulatory Impact Review, and Final Regulatory Flexibility
Analysis, may be downloaded from the HMS website at
www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species/. These
documents also are available by contacting Sarah McLaughlin, Highly
Migratory Species (HMS) Management Division, Office of Sustainable
Fisheries (F/SF1), NMFS, 55 Great Republic Drive, Gloucester, MA 01930.
FOR FURTHER INFORMATION CONTACT: Sarah McLaughlin or Brad McHale, 978-
281-9260.
SUPPLEMENTARY INFORMATION: Atlantic bluefin tuna (BFT), bigeye tuna,
albacore tuna (NALB), yellowfin tuna, and skipjack tuna (hereafter
referred to as ``Atlantic tunas'') are managed under the dual authority
of the Magnuson-Stevens Act (16 U.S.C. 1801 et seq.) and ATCA (16
U.S.C. 971 et seq.). As a member of ICCAT, the United States implements
binding ICCAT recommendations pursuant to ATCA, which authorizes the
Secretary of Commerce (Secretary) to promulgate regulations, as may be
necessary and appropriate to carry out ICCAT recommendations. The
authority to issue regulations under the Magnuson-Stevens Act and ATCA
has been delegated from the Secretary to the Assistant Administrator
for Fisheries, NMFS. Regulations implemented under the authority of
ATCA and the Magnuson-Stevens Act governing the harvest of BFT and NALB
by persons and vessels subject to U.S, jurisdiction are found at 50 CFR
part 635.
Background
Background information about the need to modify the U.S. BFT
baseline quota and subquotas and the U.S. NALB baseline quota, as well
as detailed descriptions of changes to the existing regulations
regarding school BFT and size requirements for retention, possession,
and landing of bigeye and yellowfin tuna damaged by predation, were
provided in the preamble to the proposed rule (83 FR 31517, July 6,
2018) and most of that background information is not repeated here. The
30-day comment period ended August 6, 2018. All Total Allowable Catch
(TAC), quota, and weight information in this action are whole weight
amounts.
Consistent with the regulations regarding annual BFT quota
adjustment, NMFS annually announces the addition of available
underharvest, if any, to the BFT Reserve category in a Federal Register
notice once complete catch (landings and dead discards) information is
available and finalized. Such data became available to NMFS since
publication of the proposed rule, and notice of the quota adjustment
for 2017 underharvest is included with this final rule to provide the
regulated community with the most up-to-date quota balances.
BFT Annual Quota and Subquotas
At its November 2017 meeting, after considering the advice of
ICCAT's Standing Committee on Research and Statistics (SCRS), ICCAT
adopted Recommendation 17-06 (Recommendation by ICCAT for an Interim
Conservation and Management Plan for western Atlantic BFT) for 2018
through 2020. An interim approach was selected in light of the SCRS'
new stock assessment approach and ICCAT's anticipated development of
management procedures for the stock by 2020. Management procedures are
a way to manage stocks in light of stock assessment and other
scientific uncertainties and include use of stock monitoring, pre-
agreed actions based on triggers (i.e., harvest control rules), and
evaluation to help ensure identified management objectives are
achieved. See EA for more details. The Recommendation included a TAC of
2,350 mt annually (i.e., an increase of approximately 17.5 percent) for
2018, 2019, and 2020. This TAC is within the SCRS-recommended range and
provides a buffer from the top end of the range to help further account
for identified stock assessment uncertainties. Relevant provisions of
the Recommendation by ICCAT Amending the Supplemental Recommendation by
ICCAT Concerning the Western Atlantic Bluefin Tuna Rebuilding Program
(Recommendation 16-08) were also maintained in Recommendation 17-06,
such as those involving effort and capacity limits, the 10-percent
limit on the amount of unused quota Contracting Parties may carry
forward, minimum fish size requirements and protection of small fish
(including the 10-percent tolerance limit on the harvest of BFT
measuring less than 115 cm and the procedures for addressing
overharvest of the tolerance limit), area and time restrictions,
transshipment, scientific research, and data and reporting
requirements.
Quotas and Domestic Allocations
Recommendation 17-06 maintained the quota allocations to individual
Contracting Parties (i.e., the percentages to each Contracting Party)
of previous recommendations. Under the ICCAT recommendation, the annual
U.S. quota is 1,247.86 mt, plus 25 mt to account for bycatch related to
pelagic longline fisheries in the Northeast Distant gear restricted
area (NED), resulting in a total of 1,272.86 mt.
This action implements the ICCAT-recommended quota of 1,272.86 mt.
The table below shows the final baseline
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quotas and subquotas that result from applying the process codified in
the quota regulations at 50 CFR 635.27(a) to the ICCAT-recommended U.S.
BFT quota. These quotas (in mt) are codified at Sec. 635.27(a) and
will remain in effect until changed. Because ICCAT adopted annual TACs
for 2018 through 2020, NMFS currently anticipates that the annual U.S.
baseline quota and subquotas in this rule will be in effect through
2020; they will remain in place unless and until a new U.S. quota is
adopted by ICCAT.
[GRAPHIC] [TIFF OMITTED] TR11OC18.004
Within the BFT quota proposed in this action and consistent with
the ICCAT-recommended limit on the harvest of school BFT (measuring 27
to less than 47 inches curved fork length (CFL)), the school BFT
subquota is 127.3 mt. This final action also amends the regulations
regarding annual quota adjustments to specify that NMFS may adjust the
annual school BFT subquota to ensure compliance with the ICCAT-
recommended procedures for addressing overharvest of school BFT. This
amendment is needed because the current regulatory text refers to
outdated language (regarding multi-year ``balancing periods'') from a
previous ICCAT recommendation.
Adjustment of the 2018 BFT Quota for 2017 Underharvest
This final rule also provides notice that, consistent with the BFT
quota regulations at Sec. 635.27(a)(10), NMFS augments the BFT Reserve
category quota with allowable underharvest, if any, from the previous
year. NMFS makes such adjustments consistent with ICCAT limits and when
complete catch information for the prior year is available and
finalized. The maximum underharvest that a Contracting Party may carry
forward from one year to the next is 10 percent of its initial catch
quota, which for 2017 equals 108.38 mt for the United States.
For 2017, the adjusted BFT quota was 1,192.17 mt (1,083.79 mt +
108.38 mt of 2016 underharvest carried forward to 2017). The total 2017
BFT catch, which includes landings and dead discards, was 997.86 mt,
which is 194.31 mt less than the 2017 adjusted quota. Thus, the 2018
adjusted BFT quota is 1,381.24 mt (baseline quota of 1,272.86 mt +
underharvest carryover of 108.38 mt).
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Recalculation of Quota Available to Atlantic Tunas Purse Seine Category
and Reserve Category
Pursuant to Sec. 635.27(a)(4), NMFS annually determines the amount
of quota available to the Atlantic Tunas Purse Seine category
participants, based on their BFT catch (landings and dead discards) in
the prior year and reallocates the remainder to the Reserve category.
Because the U.S. baseline quota and subquotas are increasing via this
action, NMFS in this rule is also recalculating the 2018 Purse Seine
and Reserve category quotas that were announced earlier this year. NMFS
previously announced that 46.1 mt were available to the Purse Seine
category for 2018, and the amount of Purse Seine category quota to be
reallocated to the Reserve category was 138.2 mt (184.3 mt - 46.1 mt)
(83 FR 17110, April 18, 2018). To account for the ICCAT quota increase
addressed in this rule, NMFS is first adjusting the 2018 Purse Seine
category quota to reflect the ICCAT quota increase. As a result, the
baseline Purse Seine category quota initially increases by 35.2 mt to
219.5 mt. NMFS then recalculates the amounts of quota available to
individual Purse Seine category participants for 2018 using the final
baseline Purse Seine category quota (219.5 mt). Adjusted for the quota
increase, 55 mt are available for Purse Seine category participants in
2018. Consistent with Sec. 635.27(a)(4)(v)(C), NMFS will notify
Atlantic Tunas Purse Seine fishery participants of the adjusted amount
of quota available for their use in 2018 through the Individual Bluefin
Quota (IBQ) electronic system and in writing.
The remaining 164.5 mt (219.5 mt-55 mt = 164.5 mt) is added to the
2018 Reserve category quota. This final rule also increases the
baseline annual Reserve category quota by 4.7 mt from 24.8 mt to 29.5
mt. NMFS made four inseason quota transfers totaling 84.5 mt from the
Reserve category in 2018 to date: 10 mt from the Reserve category to
the General category effective February 28, 2018, through March 2, 2018
(83 FR 9232, March 5, 2018), 44.5 mt to the Longline category effective
April 13, 2018, through December 31, 2018 (83 FR 17110, April 18,
2018), 30 mt from the Reserve category to the Harpoon category
effective August 2, 2018, through November 15, 2018 (83 FR 38664,
August 7, 2018), and 60 mt from the Reserve category to the General
category effective September 18, 2018, through September 30, 2018 (83
FR 47843, September 21, 2018). Thus, the adjusted 2018 Reserve category
quota as of publication of this action is: 24.8 mt (baseline) + 4.7 mt
(ICCAT quota increase to baseline) - 144.5 (quota transfers) + 164.5 mt
(Purse Seine adjustment) + 108.38 mt (underharvest carryover) = 157.9
mt.
NALB Annual Quota
In 2017, following consideration of SCRS' work to test a set of
harvest control rules through management strategy evaluation
simulations, ICCAT adopted an interim harvest control rule for NALB,
the first for any ICCAT stock, with the goal of adopting a long-term
harvest control rule following further management strategy evaluation
testing over the next few years. In ICCAT Recommendation 17-04
(Recommendation by ICCAT on a Harvest Control Rule for North Atlantic
Albacore Supplementing the Multiannual Conservation and Management
Programme, Recommendation 16-06), ICCAT adopted a 3-year constant
annual TAC of 33,600 t for 2018 through 2020; this 20-percent increase
from the current 28,000-t TAC is consistent with the Commission's
chosen stability clause, which limits the TAC increase to 20 percent.
The recommendation calls on the SCRS to continue to develop the
management strategy evaluation framework over the 2018-2020 period and
calls on ICCAT to review the interim harvest control rule in 2020 with
a view to adopting a long-term management procedure at that point.
Domestic Quotas
This action implements the annual U.S. NALB quota of 632.4 mt
adopted in ICCAT Recommendation 17-04. Because ICCAT adopted annual
TACs for 2018 through 2020, NMFS currently anticipates that the annual
baseline quota would be in effect through 2020; it will remain in place
unless and until a new TAC is adopted by ICCAT.
Adjustment of the 2018 NALB Quota
Consistent with the NALB quota regulations at Sec. 635.27(e), NMFS
adjusts the U.S. annual northern albacore quota for allowable
underharvest, if any, in the previous year. NMFS makes such adjustments
consistent with ICCAT limits and when complete catch information for
the prior year is available and finalized. The maximum underharvest
that a Contracting Party may carry forward from one year to the next is
25 percent of its initial catch quota, which, relevant to 2017, equals
131.75 mt for the United States.
For 2017, the adjusted NALB quota was 658.75 mt (527 mt + 131.75 mt
of 2016 underharvest carried forward to 2017). The total 2017 NALB
catch was 236.79 mt and this is 421.96 mt less than the 2017 adjusted
quota. Thus, the underharvest for 2017 is 421.96 mt, 131.75 mt of which
may be carried forward to the 2018 fishing year. As a result, the 2018
adjusted northern albacore quota is 632.4 mt + 131.75 mt, totaling
764.15 mt.
Modification of the Size Limit Regulations To Address Bigeye and
Yellowfin Tuna Damaged Through Predation by Sharks and Other Marine
Species
Minimum fish size regulations have applied for Atlantic bluefin
tuna, bigeye tuna, and yellowfin tuna since 1996, when NMFS implemented
the 27-inch minimum size for BFT consistent with ICCAT requirements,
and also implemented a 27-inch minimum size for bigeye and yellowfin
tuna for identification and enforcement purposes. Under existing
regulations, these fish may be landed round with fins intact, or
eviscerated with the head and fins removed as long as one pectoral fin
and the tail remain attached. They cannot be filleted or cut into
pieces at sea. The upper and lower lobes of the tail may be removed
from tunas for storage purposes, but the fork of the tail must remain
intact.
To facilitate enforcement, total curved fork length (CFL) is the
sole criterion for determining the size class of whole (with head)
Atlantic tunas. CFL is measured by tracing the contour of the body from
the tip of the upper jaw to the fork of the tail in a line that runs
along the top of the pectoral fin and the top of the caudal keel.
Pectoral fin curved fork length (PFCFL) is the sole criterion for
determining the size class of a bluefin tuna with the head removed and
is multiplied by 1.35 to obtain total CFL. For detailed diagrams and
measuring instructions, see the HMS Compliance Guides at
www.fisheries.noaa.gov/atlantic-highly-migratory-species/atlantic-highly-migratory-species-fishery-compliance-guides. Currently, the size
limit regulations prohibit a person from taking, retaining, or
possessing a BFT, bigeye tuna, or yellowfin tuna in the Atlantic Ocean
that is less than 27 inches CFL. The regulations also prohibit removing
the head of a bigeye tuna or yellowfin tuna if the remaining portion
would be less than 27 inches from the fork of the tail to the forward
edge of the cut.
Fishermen have reported that they, at times, catch bigeye and
yellowfin tuna that have been damaged by predation by sharks or other
marine species. In those cases, a CFL measurement may not be possible
if the fork of the tail has been removed by predation. Although the
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fish may otherwise meet the minimum size requirements, fishermen have
had to discard the fish. To address this situation, NMFS makes minor
modifications to the applicable Atlantic tunas size limit regulations
to address retention, possession, and landing of bigeye and yellowfin
damaged through predation by sharks and other marine species. In this
action, NMFS adds text to the size limit regulations applicable to
bigeye and yellowfin tuna to indicate that a ``bigeye or yellowfin tuna
that is damaged through predation by sharks and other marine species
may be retained, possessed, or landed only if the length of the
remainder of the fish is equal to or greater than 27 inches (69 cm).''
These changes allow retention, possession, and landing of yellowfin and
bigeye tuna for which a measurement to the fork of the tail may not be
possible, provided that the remainder of the fish meets the current
minimum size (e.g., 27 inches for yellowfin and bigeye tuna). To
preserve evidence, for enforcement purposes, that the carcass was
damaged through predation by sharks or other marine species, the
regulatory text specifies that, aboard a vessel, no tissue may be cut
away from or other alterations made to the predation-damaged area of
the fish. The effects of this change are primarily economic and
administrative, and no environmental effects are anticipated because
the change only allows for retention of a very limited number of fish
that would otherwise be caught but need to be discarded. NMFS
implemented measures to address shark-damaged swordfish in 1996 (61 FR
27304, May 31, 1996), and intends to consider extending the scope of
those measures to include damage through predation by other marine
species in a future swordfish action.
Response to Comments
NMFS received three written comments on the proposed rule. Below,
NMFS summarizes and responds to all comments made specifically on the
proposed rule during the comment period.
Comment 1: One commenter suggested that, for conservation reasons,
NMFS should reduce rather than increase the quota.
Response: The western Atlantic BFT TAC adopted by ICCAT on an
interim basis is within the range recommended by ICCAT's Standing
Committee on Research and Statistics (SCRS) and provides a buffer from
the top end of the range (2,500 mt). NMFS has determined that
implementing the U.S. baseline quota is consistent with the ICCAT
recommendation and our conservation and management obligations under
the Magnuson-Stevens Act and ATCA to provide the opportunity to harvest
the ICCAT-recommended quota. NMFS is committed to the sustainable,
science-based management of BFT, and is supportive of ICCAT's work
toward adopting stock management recommendations using management
procedures, which ICCAT has recommended for BFT and other priority
stocks, to manage fisheries more effectively in the face of identified
uncertainties.
Comment 2: One commenter, representing a fishing industry
organization, supported finalizing the BFT and NALB quotas as proposed,
further commented on HMS regulations that affect pelagic longline
participants, including the Individual Bluefin Quota Program and time/
area closures, and supported access to closed areas through a research
fishery.
Response: This rulemaking does not address issues beyond the
modification of the baseline annual U.S. quota and subquotas for BFT,
the baseline annual U.S. NALB quota, and the size limit regulations
pertaining to bigeye and yellowfin tuna.
NMFS is currently preparing a draft Three-Year Review of the
Individual Bluefin Quota Program. NMFS plans to conduct scoping in the
future to respond to that review, as well as consider other potential
changes to the regulations applicable to the pelagic longline fishery
and the directed bluefin fisheries. NMFS also initiated a separate
scoping process in the spring of 2018 to consider a range of issues and
options regarding possible area-based and weak hook management changes.
The subject time/area closures, gear restricted areas, and weak hook
requirement were originally implemented to reduce incidental BFT catch
that occurs during pelagic longline operations. Depending on the
outcome of NMFS' review, NMFS anticipates publishing a proposed rule on
these other potential changes to the regulations in spring 2019.
Comment 3: The comment from the fishing industry group also
provided specific suggestions regarding the proposed change regarding
bigeye and yellowfin tuna damaged by shark bites. Specifically, the
comment suggested that NMFS broaden the regulatory provision to address
predation by other marine species that predate on hooked tuna and that
may cause damage similar to damage caused by sharks. The comment also
requested that NMFS allow trimming of the damaged (i.e., bitten) area
of the fish for quality purposes, and noted that fishermen routinely
trim the damaged area of predated fish to avoid possible spoiling of
the remaining carcass.
Response: NMFS agrees that predation by marine species other than
sharks, such as pilot whales or Risso's dolphins, may result in damage
to caught Atlantic bigeye and yellowfin tuna similar to damage caused
by shark bites. It would also be difficult for fishermen or law
enforcement to distinguish whether a tuna was bitten by a shark or
another marine species. NMFS has determined that expanding the scope of
the regulatory text to specify ``predation by sharks and other marine
species'' is an appropriate modification of the originally-proposed
text, and that the change could be enforced effectively. Thus, in this
final rule, NMFS modifies the language being added to the size limit
regulations applicable to bigeye and yellowfin tuna so that it refers
to predation by sharks and other marine species. With this
modification, the relevant language of Sec. 635.20(c)(3) indicates
that a bigeye or yellowfin tuna that is damaged through predation by
sharks and other marine species may be retained, possessed, or landed
only if the length of the remainder of the fish is equal to or greater
than 27 inches (69 cm). No person shall cut or otherwise alter the
predation-damaged area in any manner.
NMFS cannot affirm the comment that trimming of the damaged area by
fishermen prior to landing is a common or routine practice.
Furthermore, for Atlantic tunas this practice is illegal. For
enforcement purposes, curved fork length is the sole criterion for
determining the size of Atlantic tunas, and this measurement is taken
either from the tip of the upper jaw to the fork of the tail (total
curved fork length) or, for BFT with the head removed, from the dorsal
insertion of the pectoral fin to the fork of the tail (pectoral fin
curved fork length). Regulations require that Atlantic tunas be
maintained through offloading either in round form or eviscerated with
the head and fins removed, provided one pectoral fin and the tail
remain attached. The upper and lower lobes of the tuna tail may be
removed for storage purposes as long as the fork of the tail remains
intact. See Sec. 635.30(a). It is NMFS' understanding that some
Atlantic tunas dealers trim away predation-damaged area of the tuna
after landing and offloading to help preserve the fish. Legally,
trimming may only occur after landing and offloading.
The proposed rule specified that no person shall cut or otherwise
alter the damaged area of the fish. This prohibition is necessary, for
enforcement purposes, to preserve evidence that the carcass was bitten.
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NMFS is concerned that allowing trimming of the damaged area prior to
offloading could complicate effective enforcement of the Atlantic tunas
regulations and species identification, particularly if it results in
the tail being removed from the fish, and that this could become a
common occurrence. Therefore, this provision prohibiting cutting or
altering the damaged area is finalized as proposed.
Changes From the Proposed Rule (83 FR 31517, July 6, 2018)
As described in the response to Comment 3 above, NMFS made changes
to the regulatory text of the proposed rule in response to the comment
that other marine predators may cause damage similar to that caused by
shark bites. Specifically, the final rule adds language to the size
limit regulations applicable to bigeye and yellowfin tuna at Sec.
635.20(c)(3), providing that a bigeye or yellowfin tuna that is damaged
through predation by sharks and other marine species may be retained,
possessed, or landed only if the length of the remainder of the fish is
equal to or greater than 27 inches (69 cm). No person shall cut or
otherwise alter the predation-damaged area in any manner.
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.
There is good cause under U.S.C. 553(d)(3) to waive the 30-day
delay in effective date and to make the rule effective upon filing in
the Federal Register. The purpose of the delay in effective date is to
afford affected persons a reasonable time to prepare for the effective
date of the rule. The fisheries for northern albacore and bluefin tuna
began on January 1, 2018. NMFS monitors northern albacore and bluefin
tuna catch and measures the data against the applicable available
quotas. This rule effectively increases the quota for both of these
fisheries and, consequently, for the subquotas within the bluefin tuna
fishery. Delaying the effective date of these changes would mean that
some fisheries might have to close while operating under the old quota,
and then re-open when the new quota is implemented soon thereafter.
This would unnecessarily complicate the management of the northern
albacore and bluefin tuna fisheries for the remainder of the year,
confuse the regulated community, and create additional administrative
burden, because it would require NMFS to publish closures and openings
that would otherwise be unnecessary. To prevent confusion and potential
overharvests, these quota increases and adjustments should be in place
as soon as possible, thus allowing the impacted sectors to benefit from
any subsequent quota adjustments to the fishing categories, giving them
a reasonable opportunity to catch available quota, and providing them
the opportunity for planning operations accordingly.
For example, under the northern albacore regulations, NMFS must
close the fishery when the annual fishery quota is reached. Closure of
the fishery based only on the currently codified baseline quota, rather
than accounting for the higher quota in this rule, would result in an
unnecessary closure and could preclude the fishery from harvesting
northern albacore that are legally available, consistent with the ICCAT
recommendations and the 2006 Consolidated HMS FMP, as amended.
Furthermore, NMFS relies upon management flexibility to respond quickly
to current fishery conditions and to ensure that fishermen have a
reasonable opportunity to catch the available quotas. Implementing the
higher bluefin tuna category quotas and adjusting the Reserve category
quota as soon as possible provides NMFS the flexibility to transfer
quota from the Reserve to other fishing categories inseason after
considering the regulatory determination criteria, including fishery
conditions at the time of the transfer. The amount of quota currently
in the Reserve category for 2018 is relatively low, and NMFS may need
to transfer quota as soon as possible in order to reduce the likelihood
of fishery closure during the remaining subquota time periods. NMFS
could not appropriately adjust the annual quotas for 2018 sooner
because the data needed to make the determination (i.e., 2017
underharvest) did not become available until August, and additional
time was needed for agency analysis and consideration of the data.
Implementation of the change to the size limit regulations to
address damaged tunas, provided that the remainder of the fish meets
the current minimum size (e.g., 27 inches for yellowfin and bigeye
tuna), will allow retention, possession, and landing of yellowfin and
bigeye tuna for which a measurement to the fork of the tail may not be
possible because the tail has been partially or entirely bitten off.
Because this change could convert dead discards to landings,
implementation of the measure as soon as possible could reduce waste.
For all of these reasons, there is good cause to waive the 30-day delay
in the date of effectiveness.
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 final 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).
The FRFA incorporates the Initial Regulatory Flexibility Analysis
(IRFA), a summary of the significant issues raised by the public
comments in response to the IRFA, and NMFS' responses to those
comments, and a summary of the analyses completed to support the
action. The full FRFA and analysis of economic and ecological impacts
are available from NMFS (see ADDRESSES). A summary of the FRFA follows.
Section 604(a)(1) of the Regulatory Flexibility Act (RFA) (5 U.S.C.
601 et seq.) requires a succinct statement of the need for and
objectives of the rule. The purpose of this action is to implement the
2017 ICCAT recommendations regarding western Atlantic BFT and NALB, as
necessary and appropriate pursuant to the Atlantic Tunas Convention Act
(ATCA), and to achieve domestic management objectives under the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). The objectives of this action are to implement the 2017
ICCAT recommendations and distribute the U.S. BFT quota among domestic
fishing categories using the existing regulatory formula for quota
distribution established and analyzed in Amendment 7 to the 2006
Consolidated HMS FMP (Amendment 7) (79 FR 71510, December 2, 2014).
This action is needed because BFT and NALB quotas, as well as BFT
allocations and resulting subquotas, are codified in the HMS
regulations at 50 CFR 635.27, and rulemaking is necessary to modify
them.
Section 604(a)(2) of the RFA requires a summary of significant
issues raised by the public in response to the IRFA, a summary of the
agency's assessment of such issues, and a statement of any changes made
as a result of the comments. NMFS received three comments on the
proposed rule (83 FR 31517, July 6, 2018) during the comment period. A
summary of these comments and the agency's responses are included
above. However, NMFS did not receive comments specifically
[[Page 51396]]
on the IRFA or on the economic impacts of the rule.
Section 604(a)(3) of the RFA requires the response of the agency 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 to the proposed rule in the final
rule as a result of the SBA comments. NMFS did not receive comments
from the Chief Counsel for Advocacy of the SBA in response to the
proposed rule.
Section 604(a)(4) of the RFA requires agencies to provide
descriptions of, and where feasible, 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. This provision is made under SBA's regulations for an
agency to 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
published a December 29, 2015, final rule (80 FR 81194), which became
effective on July 1, 2016. The implementing regulations for that rule
at 50 CFR 200.2 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 commercial HMS permit holders to be small entities
because they had average annual receipts of less than $11 million for
commercial fishing.
As described in the recently published final rule to implement
quarterly Individual Bluefin Quota (IBQ) accounting (82 FR 61489,
December 28, 2017), the average annual gross revenue per active pelagic
longline vessel was estimated to be $308,050 for 2013 through 2016.
NMFS considers all HMS Atlantic Tunas Longline permit holders (280 as
of October 2017) to be small entities because these vessels have
reported annual gross receipts of less than $11 million for commercial
fishing. NMFS is unaware of any other Atlantic Tunas category permit
holders that potentially could earn more than $11 million in revenue
annually. HMS Angling category permits, which are recreational fishing
permits, are typically obtained by individuals who are not considered
small entities for purposes of the RFA. Therefore, NMFS considers all
Atlantic Tunas permit holders and HMS Charter/Headboat permit holders
subject to this action to be small entities. The following section
provides a description of how NMFS calculated the average revenues and
then provides a description of and, where feasible, provides an
estimate of the number of small entities to which the rule would apply
as required by RFA.
This action would apply to all participants in the Atlantic tunas
fisheries, i.e., to the over 27,000 vessels that held an Atlantic HMS
Charter/Headboat, Atlantic HMS Angling, or an Atlantic Tunas permit as
of October 2017. This final rule is expected to directly affect
commercial and for-hire fishing vessels that possess an Atlantic Tunas
permit or Atlantic HMS Charter/Headboat permit. It is unknown what
portion of HMS Charter/Headboat permit holders actively participate in
the BFT and NALB fisheries or fishing services for recreational
anglers. As summarized in the 2017 SAFE Report for Atlantic HMS, there
were 6,855 commercial Atlantic tunas or Atlantic HMS permits in 2017,
as follows: 2,940 in the Atlantic Tunas General category; 11 in the
Atlantic Tunas Harpoon category; 5 in the Atlantic Tunas Purse Seine
category; 280 in the Atlantic Tunas Longline category; 1 in the
Atlantic Tunas Trap category; and 3,618 in the HMS Charter/Headboat
category. In the process of developing the IBQ regulations implemented
in the final rule for Amendment 7, NMFS deemed 136 Longline category
vessels as eligible for IBQ shares (i.e., 136 vessels reported a set in
the HMS logbook between 2006 and 2012 and had valid Atlantic Tunas
Longline category permits on a vessel as of August 21, 2013, the
publication date of the Amendment 7 proposed rule). This constitutes
the best available information regarding the universe of permits and
permit holders recently analyzed. It is unknown what portion of fishery
participants would be affected by the minor change in the regulations
to allow retention, possession, and landing of bigeye and yellowfin
tuna, damaged through predation by sharks and other marine species, for
which a measurement to the fork of the tail may not be possible,
provided that the remainder of the fish meets the current minimum sizes
(e.g., 27 inches for yellowfin, and bigeye tunas). NMFS has determined
that this action would not likely directly affect any small government
jurisdictions defined under the RFA.
Under section 604(a)(5) of the RFA, agencies are required to
describe any new reporting, record-keeping, and other compliance
requirements. The action does not contain any new collection of
information, reporting, or record-keeping requirements.
Under section 604(a)(6) of the RFA, agencies are required to
describe 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 why each one of the other significant alternatives to the rule
considered by the agency which affect the impact on small entities was
rejected.
In this rulemaking, NMFS analyzed two quota implementation
alternatives for BFT and NALB: first, the status quo U.S. baseline
quota(s) established in 2015, and second, the preferred alternative to
implement the U.S. quota in accordance with the 2017 ICCAT
Recommendation and regulations regarding the distribution of the quota
within U.S. fishing categories. The final rule implements the recently
adopted ICCAT-recommended U.S. BFT and NALB quotas and, for BFT,
applies the allocations for each quota category per the codified quota
regulations. This action is consistent with ATCA, under which the
Secretary promulgates regulations as necessary and appropriate to
implement binding ICCAT recommendations.
NMFS has estimated the average impact that establishing the
increased annual U.S. baseline BFT quota for all domestic fishing
categories would have on individual categories and the vessels within
those categories. As mentioned above, a 2017 ICCAT recommendation
increased the annual U.S. baseline BFT quota for 2018, 2019, and 2020
to 1,247.86 mt and provides 25 mt annually for incidental catch of BFT
related to directed longline fisheries in the NED. The annual U.S.
baseline BFT subquotas would be adjusted consistent with the process
(i.e., the formulas) established in Amendment 7 and as codified in the
quota regulations, and these amounts (in mt) would be codified.
To calculate the average ex-vessel BFT revenues under this action,
NMFS first estimated potential category-wide revenues. The most recent
ex-vessel average price per pound information for each commercial quota
category is used to estimate potential ex-vessel gross revenues under
the subquotas (i.e., 2017 prices for the General, Harpoon, and
[[Page 51397]]
Longline/Trap categories, and 2015 prices for the Purse Seine
category). For comparison, in 2017, gross revenues were approximately
$9.2 million, broken out by category as follows: General--$7.8 million,
Harpoon--$496,968, Purse Seine--$0, Longline--$878,824, and Trap--$0.
The baseline subquotas could result in estimated gross revenues of $10
million annually, if finalized and fully utilized, broken out by
category as follows: General category: $6.5 million (555.7 mt * $5.30/
lb); Harpoon category: $526,326 (46 mt * $5.19/lb); Purse Seine
category: $1.5 million (219.5 mt * $3.21/lb); Longline category: $1.4
million (163.6 mt * $3.99/lb); and Trap category: $10,556 (1.2 mt *
$3.99/lb).
No affected entities would be expected to experience negative,
direct economic impacts as a result of this action. On the contrary,
each of the BFT quota categories would increase relative to the
baseline quotas that applied in 2015 through 2017. To the extent that
Purse Seine fishery participants and IBQ participants could receive
additional quota as a result of the Amendment 7-implemented allocation
formulas being applied to increases in available Purse Seine and
Longline category quota, those participants would receive varying
amounts of an increase, which would result in direct benefits from
either increased fishing opportunities or quota leasing.
The FRFA assumes that each vessel will have similar catch and gross
revenues to show the relative impact of the final action on vessels. To
estimate potential average ex-vessel revenues that could result from
this action for BFT, NMFS divided the potential annual gross revenues
for the General, Harpoon, Purse Seine, and Trap category by the number
of permit holders. For the Longline category, NMFS divided the
potential annual gross revenues by the number of IBQ share recipients.
This is an appropriate approach for BFT fisheries, in particular,
because available landings data (weight and ex-vessel value of the fish
in price-per-pound) allow NMFS to calculate the gross revenue earned by
a fishery participant on a successful trip. The available data
(particularly from non-Longline participants) do not, however, allow
NMFS to calculate the effort and cost associated with each successful
trip (e.g., the cost of gas, bait, ice, etc.), so net revenue for each
participant cannot be calculated. As a result, NMFS analyzed the
average impact of the alternatives among all participants in each
category.
Success rates vary widely across participants in each category (due
to the extent of vessel effort and availability of commercial-sized BFT
to participants where they fish), but for the sake of estimating
potential revenues per vessel, category-wide revenues can be divided by
the number of permitted vessels in each category. For the Longline
fishery, actual revenues would depend, in part, on each vessel's IBQ in
2018. It is unknown what portion of HMS Charter/Headboat permit holders
actively participate in the BFT fishery. HMS Charter/Headboat vessels
may fish commercially under the General category quota and retention
limits. Therefore, NMFS is estimating potential General category ex-
vessel revenue changes using the number of General category vessels
only.
Estimated potential 2018 revenues on a per vessel basis,
considering the number of permit holders listed above and the
subquotas, could be $2,409 for the General category; $47,848 for the
Harpoon category; $310,670 for the Purse Seine category; $10,582 for
the Longline category, using the 136 IBQ share recipients; and $10,556
for the Trap category. Thus, all of the entities affected by this rule
are considered to be small entities for the purposes of the RFA.
Consistent with the codified BFT quota regulations at Sec.
635.27(a)(4)(v), NMFS will continue to annually calculate the quota
available to historical Purse Seine fishery participants and reallocate
the remaining Purse Seine category quota to the Reserve category. NMFS
is further adjusting those amounts consistent with the annual U.S.
baseline BFT quota in this final rule. The analyses in this FRFA are
limited to the final baseline subquotas.
Because the directed commercial categories have underharvested
their subquotas in recent years, the potential increases in ex-vessel
revenues above may overestimate the probable economic impacts to those
categories relative to recent conditions. Additionally, there has been
substantial interannual variability in ex-vessel revenues in each
category in recent years, due to recent changes in BFT availability and
other factors.
The 2017 NALB ICCAT recommendation increased the annual U.S.
baseline NALB quota for 2018, 2019, and 2020 to 632.4 mt. Based on
knowledge of current participants in the fishery and estimated gross
revenues, NMFS considers all of the entities affected by the NALB quota
action be small entities for the purposes of the RFA.
NMFS does not subdivide the U.S. NALB quota into category
subquotas. The most recent ex-vessel average price per pound
information is used to estimate potential ex-vessel gross revenues. The
baseline subquotas could result in estimated gross revenues of $1.8
million annually, if finalized and fully utilized ((632.4 mt/1.25) *
$1.63/lb dw). No affected entities would be expected to experience
negative, direct economic impacts as a result of this action.
The change to the regulatory text concerning Atlantic bigeye and
yellowfin tuna size limits applies to all fishery participants but is
not expected to have significant economic impacts. This is because
damage to caught bigeye and yellowfin tuna through predation by sharks
and other marine species is rare, and the change to the regulatory text
is not expected to result in significant changes to Atlantic tunas
fishery operations.
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, a statement published online serves as the
small entity compliance guide, and a listserv notice containing the web
address will be sent to HMS News subscribers. Copies of this final rule
and the guide are available upon request (see ADDRESSES).
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports,
Penalties, Reporting and recordkeeping requirements, Treaties.
Dated: October 3, 2018.
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:
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. 635.20, revise paragraph (c)(3) to read as follows:
[[Page 51398]]
Sec. 635.20 Size limits.
* * * * *
(c) * * *
(3) No person aboard a vessel shall remove the head of a bigeye
tuna or yellowfin tuna if the remaining portion would be less than 27
inches (69 cm) from the fork of the tail to the forward edge of the
cut. A bigeye or yellowfin tuna that is damaged through predation by
sharks or other marine species may be retained, possessed, or landed
only if the length of the remainder of the fish is equal to or greater
than 27 inches (69 cm). No person shall cut or otherwise alter the
predation-damaged area in any manner.
* * * * *
0
3. In Sec. 635.27, revise paragraphs (a) introductory text, (a)(1)(i),
(a)(2) and (3), (a)(4)(i), (a)(5) and (6), (a)(7)(i) and (ii),
(a)(10)(iii), and (e)(1) to read as follows:
Sec. 635.27 Quotas.
(a) Bluefin tuna. Consistent with ICCAT recommendations, and with
paragraph (a)(10)(iv) of this section, NMFS may subtract the most
recent, complete, and available estimate of dead discards from the
annual U.S. bluefin tuna quota, and make the remainder available to be
retained, possessed, or landed by persons and vessels subject to U.S.
jurisdiction. The remaining baseline annual U.S. bluefin tuna quota
will be allocated among the General, Angling, Harpoon, Purse Seine,
Longline, Trap, and Reserve categories, as described in this section.
Bluefin tuna quotas are specified in whole weight. The baseline annual
U.S. bluefin tuna quota is 1,247.86 mt, not including an additional
annual 25-mt allocation provided in paragraph (a)(3) of this section.
The bluefin quota for the quota categories is calculated through the
following process. First, 68 mt is subtracted from the baseline annual
U.S. bluefin tuna quota and allocated to the Longline category quota.
Second, the remaining quota is divided among the categories according
to the following percentages: General--47.1 percent (555.7 mt);
Angling--19.7 percent (232.4 mt), which includes the school bluefin
tuna held in reserve as described under paragraph (a)(7)(ii) of this
section; Harpoon--3.9 percent (46 mt); Purse Seine--18.6 percent (219.5
mt); Longline--8.1 percent (95.6) plus the 68-mt allocation (i.e.,
163.6 mt total not including the 25-mt allocation from paragraph
(a)(3)); Trap--0.1 percent (1.2 mt); and Reserve--2.5 percent (29.5
mt). NMFS may make inseason and annual adjustments to quotas as
specified in paragraphs (a)(9) and (10) of this section, including
quota adjustments as a result of the annual reallocation of Purse Seine
quota described under paragraph (a)(4)(v) of this section.
(1) * * *
(i) Catches from vessels for which General category Atlantic Tunas
permits have been issued and certain catches from vessels for which an
HMS Charter/Headboat permit has been issued are counted against the
General category quota in accordance with Sec. 635.23(c)(3). Pursuant
to paragraph (a) of this section, the amount of large medium and giant
bluefin tuna that may be caught, retained, possessed, landed, or sold
under the General category quota is 555.7 mt, and is apportioned as
follows, unless modified as described under paragraph (a)(1)(ii) of
this section:
(A) January 1 through the effective date of a closure notice filed
by NMFS announcing that the January subquota is reached, or projected
to be reached under Sec. 635.28(a)(1), or through March 31, whichever
comes first--5.3 percent (29.5 mt);
(B) June 1 through August 31--50 percent (277.9 mt);
(C) September 1 through September 30--26.5 percent (147.3 mt);
(D) October 1 through November 30--13 percent (72.2 mt); and
(E) December 1 through December 31--5.2 percent (28.9 mt).
* * * * *
(2) Angling category quota. In accordance with the framework
procedures of the Consolidated HMS FMP, prior to each fishing year, or
as early as feasible, NMFS will establish the Angling category daily
retention limits. In accordance with paragraph (a) of this section, the
total amount of bluefin tuna that may be caught, retained, possessed,
and landed by anglers aboard vessels for which an HMS Angling permit or
an HMS Charter/Headboat permit has been issued is 232.4 mt. No more
than 2.3 percent (5.3 mt) of the annual Angling category quota may be
large medium or giant bluefin tuna. In addition, no more than 10
percent of the annual U.S. bluefin tuna quota, inclusive of the
allocation specified in paragraph (a)(3) of this section, may be school
bluefin tuna (i.e., 127.3 mt). The Angling category quota includes the
amount of school bluefin tuna held in reserve under paragraph
(a)(7)(ii) of this section. The size class subquotas for bluefin tuna
are further subdivided as follows:
(i) After adjustment for the school bluefin tuna quota held in
reserve (under paragraph (a)(7)(ii) of this section), 52.8 percent
(54.8 mt) of the school bluefin tuna Angling category quota may be
caught, retained, possessed, or landed south of 39[deg]18' N lat. The
remaining school bluefin tuna Angling category quota (49 mt) may be
caught, retained, possessed or landed north of 39[deg]18' N lat.
(ii) An amount equal to 52.8 percent (52.7 mt) of the large school/
small medium bluefin tuna Angling category quota may be caught,
retained, possessed, or landed south of 39[deg]18' N lat. The remaining
large school/small medium bluefin tuna Angling category quota (47.1 mt)
may be caught, retained, possessed or landed north of 39[deg]18' N lat.
(iii) One third (1.8 mt) of the large medium and giant bluefin tuna
Angling category quota may be caught retained, possessed, or landed, in
each of the three following geographic areas: North of 39[deg]18' N
lat.; south of 39[deg]18' N lat., and outside of the Gulf of Mexico;
and in the Gulf of Mexico. For the purposes of this section, the Gulf
of Mexico region includes all waters of the U.S. EEZ west and north of
the boundary stipulated at 50 CFR 600.105(c).
(3) Longline category quota. Pursuant to paragraph (a) of this
section, the total amount of large medium and giant bluefin tuna that
may be caught, discarded dead, or retained, possessed, or landed by
vessels that possess Atlantic Tunas Longline category permits is 163.6
mt. In addition, 25 mt shall be allocated for incidental catch by
pelagic longline vessels fishing in the Northeast Distant gear
restricted area, and subject to the restrictions under Sec.
635.15(b)(8).
(4) * * *
(i) Baseline Purse Seine quota. Pursuant to paragraph (a) of this
section, the baseline amount of large medium and giant bluefin tuna
that may be caught, retained, possessed, or landed by vessels that
possess Atlantic Tunas Purse Seine category permits is 219.5 mt, unless
adjusted as a result of inseason and/or annual adjustments to quotas as
specified in paragraphs (a)(9) and (10) of this section; or adjusted
(prior to allocation to individual participants) based on the previous
year's catch as described under paragraph (a)(4)(v) of this section.
Annually, NMFS will make a determination when the Purse Seine fishery
will start, based on variations in seasonal distribution, abundance or
migration patterns of bluefin tuna, cumulative and projected landings
in other commercial fishing categories, the potential for gear
conflicts on the fishing grounds, or market impacts due to oversupply.
NMFS will start the bluefin tuna purse seine season between June 1 and
August 15, by filing an action with the Office of the Federal Register,
and
[[Page 51399]]
notifying the public. The Purse Seine category fishery closes on
December 31 of each year.
* * * * *
(5) Harpoon category quota. The total amount of large medium and
giant bluefin tuna that may be caught, retained, possessed, landed, or
sold by vessels that possess Harpoon category Atlantic Tunas permits is
46 mt. The Harpoon category fishery commences on June 1 of each year,
and closes on November 15 of each year.
(6) Trap category quota. The total amount of large medium and giant
bluefin tuna that may be caught, retained, possessed, or landed by
vessels that possess Trap category Atlantic Tunas permits is 1.2 mt.
(7) * * *
(i) The total amount of bluefin tuna that is held in reserve for
inseason or annual adjustments and research using quota or subquotas is
29.5 mt, which may be augmented by allowable underharvest from the
previous year, or annual reallocation of Purse Seine category quota as
described under paragraph (a)(4)(v) of this section. Consistent with
paragraphs (a)(8) through (10) of this section, NMFS may allocate any
portion of the Reserve category quota for inseason or annual
adjustments to any fishing category quota.
(ii) The total amount of school bluefin tuna that is held in
reserve for inseason or annual adjustments and fishery-independent
research is 18.5 percent (23.5 mt) of the total school bluefin tuna
Angling category quota as described under paragraph (a)(2) of this
section. This amount is in addition to the amounts specified in
paragraph (a)(7)(i) of this section. Consistent with paragraph (a)(8)
of this section, NMFS may allocate any portion of the school bluefin
tuna Angling category quota held in reserve for inseason or annual
adjustments to the Angling category.
* * * * *
(10) * * *
(iii) Regardless of the estimated landings in any year, NMFS may
adjust the annual school bluefin tuna quota to ensure compliance with
the ICCAT-recommended procedures for addressing overharvest of school
bluefin tuna.
* * * * *
(e) * * *
(1) Annual quota. Consistent with ICCAT recommendations and
domestic management objectives, the total baseline annual fishery quota
is 632.4 mt ww. The total quota, after any adjustments made per
paragraph (e)(2) of this section, is the fishing year's total amount of
northern albacore tuna that may be landed by persons and vessels
subject to U.S. jurisdiction.
* * * * *
[FR Doc. 2018-22034 Filed 10-10-18; 8:45 am]
BILLING CODE 3510-22-P