[Federal Register Volume 86, Number 78 (Monday, April 26, 2021)]
[Proposed Rules]
[Pages 22006-22009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08481]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 210419-0083]
RIN 0648-BK35


Atlantic Highly Migratory Species; Federal Atlantic Tunas 
Regulations in Maine State Waters

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes adding Maine to the list of states for which 
NMFS has determined that Federal Atlantic tunas regulations are 
applicable within state waters. NMFS is proposing the addition after 
considering a request from the Maine Department of Marine Resources 
(MEDMR) and reviewing the state's relevant laws and regulations. Most 
states and territories bordering the Atlantic and Gulf of Mexico are 
currently included in the list, with the exception of Maine, 
Connecticut, and Mississippi. This proposed addition of Maine to the 
list would make Federal Atlantic tunas regulations--including but not 
limited to open and closed seasons, retention limits, size limits,

[[Page 22007]]

authorized gears and gear restrictions, and permitting and reporting 
requirements--applicable in Maine state waters. This action would be 
consistent with section 9(d) of the Atlantic Tunas Convention Act 
(ATCA) and implementing regulations.

DATES: Written comments must be received by June 10, 2021. NMFS will 
hold a public hearing via conference call and webinar for this proposed 
rule on May 14, 2021, from 1 p.m. to 3 p.m. For webinar registration 
information, see the SUPPLEMENTARY INFORMATION section of this 
document.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2021-0013, by electronic submission. Submit all electronic 
public comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter ``NOAA-NMFS-2021-0013'' in the Search 
box. Click on the ``Comment'' icon, complete the required fields, and 
enter or attach your comments.
    Comments sent by any other method, to any other address or 
individual, or received after the end of the comment period, may not be 
considered by NMFS. All comments received are a part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).
    NMFS will hold a public hearing via conference call/webinar on this 
proposed rule. For specific location, date and time, see the 
SUPPLEMENTARY INFORMATION section of this document.
    Copies of this proposed rule and supporting documents are available 
from the HMS Management Division website at https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species or by 
contacting Carrie Soltanoff at [email protected] or 301-427-
8503.
    NMFS invites the general public and other Federal agencies to 
comment on continuing information collections, which helps us assess 
the impact of our information collection requirements and minimize the 
public's reporting burden. Written comments and recommendations for 
this information collection should be submitted at the following 
website www.reginfo.gov/public/do/PRAMain. Find this particular 
information collection by using the search function and entering either 
the title of the collection or the OMB Control Number: 0648-0327 
Atlantic HMS Permit Family of Forms, 0648-0328 Atlantic HMS 
Recreational Landings Reports, and 0648-0371 HMS Vessel Logbooks and 
Cost-Earnings Reports.

FOR FURTHER INFORMATION CONTACT: Carrie Soltanoff 
([email protected]) or Larry Redd, Jr. ([email protected]) at 
301-427-8503, or Sarah McLaughlin ([email protected]) at 978-
281-9260.

SUPPLEMENTARY INFORMATION: Atlantic tunas fisheries are managed under 
the authority of 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.). The 2006 Consolidated Atlantic Highly Migratory 
Species (HMS) Fishery Management Plan (FMP) and its amendments are 
implemented by regulations at 50 CFR part 635. Section 9(d) of ATCA, 16 
U.S.C. 971g(d)(2), states that regulations promulgated to implement 
recommendations of the International Commission for the Conservation of 
Atlantic Tunas (ICCAT) shall apply within the boundaries of any state 
bordering the Convention area (the Atlantic Ocean and adjacent seas) if 
the Secretary of Commerce, after notice and an opportunity for the 
State to request a formal hearing, determines that such state does not 
implement regulations consistent with ICCAT recommendations or if state 
regulations are less restrictive than the Federal regulations or are 
not effectively enforced. For Atlantic tunas, section 9(d) of ATCA is 
implemented in the Atlantic HMS regulations at 50 CFR 635.1(b). 
Atlantic tunas regulations in part 635 include open and closed seasons, 
retention limits, size limits, authorized gears and gear restrictions, 
and permitting and reporting requirements, among others. Atlantic tunas 
managed under the regulations in part 635 are bluefin, bigeye, 
albacore, yellowfin, and skipjack tunas.

Background

    NMFS made initial determinations regarding the applicability of 
Federal regulations in state waters under section 9(d) of ATCA in 1976. 
NMFS determined that, while the State of Maine had enacted laws and/or 
promulgated regulations for the conservation and management of Atlantic 
bluefin tuna, those laws and/or regulations were less restrictive than 
Federal laws or regulations, and that certain portions of the Federal 
regulations would, therefore, become effective in the territorial sea 
adjacent to the State of Maine (41 FR 32603, August 4, 1976). This 
included all applicable Federal bluefin tuna regulations (then codified 
at 50 CFR part 285), with the exception of some purse seine regulations 
and retention limits.
    In 1985, the scope of this provision was expanded from bluefin tuna 
to all ICCAT-managed Atlantic tunas (50 FR 43396, October 25, 1985). In 
1999, NMFS published a proposed rule to implement the FMP for Atlantic 
Tunas, Swordfish, and Sharks, and Amendment 1 to the Atlantic Billfish 
FMP (64 FR 3154, January 20, 1999). This action discussed continued 
implementation and review under section 9(d) of ATCA and stated that 
NMFS contacted the relevant states along with Puerto Rico and the U.S. 
Virgin Islands to review relevant state regulations. After considering 
the public comment and responses from various states, the final rule 
for this action (64 FR 29090, May 28, 1999) codified and further 
implemented ATCA section 9(d) provisions at 50 CFR 635.1(b), and that 
language remains the same to the present day. That rulemaking did not 
include Maine on the list of states at Sec.  635.1(b), either in whole 
or in part.
    ATCA requires a continuing review of state laws and regulations and 
their enforcement, and Sec.  635.1(b) accordingly states that ``NMFS 
will undertake a continuing review of State regulations to determine if 
regulations applicable to Atlantic tunas, swordfish or billfish are at 
least as restrictive as regulations contained in this part and if such 
regulations are effectively enforced. In such case, NMFS will file with 
the Office of the Federal Register for publication notification of the 
basis for the determination and of the specific regulations that shall 
or shall not apply'' in state waters. NMFS publishes relevant state 
regulations annually in the HMS Stock Assessment and Fisheries 
Evaluation (SAFE) Report.
    On October 5, 2020, NMFS received a letter from the MEDMR 
requesting that NMFS ``consider a regulatory change to 50 CFR 635.1(b) 
that would incorporate Maine into the list of states where Federal tuna 
regulations are applied in state territorial waters, and that this 
change apply to regulations for all tuna species managed under 
[ATCA].'' The letter further stated that ``given the dynamic nature of 
Federal tuna management, MEDMR does not currently have sufficient 
resources to adjust state regulations with the frequency needed to 
remain consistent with Federal regulations.'' MEDMR stated that it has 
recently seen increased

[[Page 22008]]

commercial tuna fishing activity in Maine state waters.
    This proposed rule provides a review of Maine's regulations; 
provides notice of NMFS' initial determination that Maine state 
regulations are not at least as restrictive as Federal regulations, 
taking into consideration the State of Maine's statement that it can no 
longer ensure that those regulations maintain consistency with Federal 
regulations; and proposes adding Maine to the list of states at Sec.  
635.1(b) for which NMFS has determined that Federal Atlantic tunas 
regulations under 50 CFR part 635 are applicable within state waters. 
The State of Maine has not requested a formal hearing for this action. 
Most states and territories bordering the Atlantic and Gulf of Mexico 
are currently included in the list at Sec.  635.1(b), with the 
exception of Maine, Connecticut, and Mississippi. This proposed 
addition to Sec.  635.1(b) would make Federal Atlantic tunas 
regulations applicable in Maine state waters.
    NMFS has conducted a preliminary review of Maine marine resource 
laws and regulations regarding tuna fishing in state waters and 
determined that proposed application of Federal regulations in state 
waters is warranted, consistent with the State's request and the ATCA 
criteria, particularly given the State's communication that it can no 
longer ensure that state regulations are consistent with the Federal 
regulations on an ongoing basis. Federal tunas regulations at 50 CFR 
part 635 include, but are not limited to, open and closed seasons, 
retention limits, size limits, authorized gears and gear restrictions, 
and permitting and reporting requirements. The current Maine 
regulations do not address tuna fishing in state waters in detail, 
other than restricting permitted gears to harpoon and hook and line (12 
Maine Revised Statutes Annotated (MSRA) Sec.  6551) and implementing a 
nonresident special tuna permit for participation in certain tuna 
tournaments (Sec.  6502). Under Maine law, anyone who wants to fish 
commercially for tunas in state waters needs a commercial fishing 
license (Sec.  6501). MEDMR policy, although not codified, is that 
recreational tuna fishermen in state waters need to obtain Federal 
permits and follow Federal regulations. Thus, the Maine regulations 
appear to be less restrictive than the relevant Federal regulations.
    Federal HMS Angling and Charter/Headboat category permit holders 
already must adhere to Federal HMS regulations as a condition of their 
permit (see 50 CFR 635.4(a)(10)). Based on available data on commercial 
catch of tunas within Maine's boundaries and surrounding waters, it 
appears that tuna catch within the boundaries of the state comes from 
fishermen who already possess Federal permits and are adhering to 
Federal reporting requirements for all catch as well as other Federal 
tuna regulations, whether they are in Federal or state waters. 
Furthermore, the large majority of tunas landed in Maine have 
historically been caught in Federal waters, with bluefin tuna being the 
primary species. Essential fish habitat for adult Atlantic tunas, as 
described in Amendment 10 to the 2006 Consolidated Atlantic HMS FMP, 
supports the observation that typically only bluefin tuna are found as 
far north as Maine. The northern extent of essential fish habitat for 
adult bluefin tuna is described as offshore and coastal regions of the 
Gulf of Maine, the mid-coast of Maine to Massachusetts, and on Georges 
Bank. Although bluefin tuna can occasionally be found in coastal 
waters, they are most abundant in pelagic habitat.
    These factors indicate that this action would not result in a 
substantial change in fishing location, timing, effort, authorized gear 
types, or harvest levels. NMFS does not anticipate a substantial change 
to the ecological or socioeconomic impacts on Atlantic tunas fisheries, 
or a significant economic impact on a substantial number of small 
entities.
    The rule would, however, require adherence to Federal tunas 
regulations in Maine state waters. If finalized, this rule would 
provide regulatory consistency; enhance enforcement of season closures, 
retention limits, size limits, and other Federal regulations in Maine 
state waters; and address the State of Maine's observation of increased 
commercial tuna fishing activity in state waters. This change also 
would more directly ensure that any tunas landed in state waters are 
reported in compliance with regulations implementing ICCAT 
requirements.
    In the future, consistent with the continuing review required by 
ATCA, NMFS may more formally review Connecticut and Mississippi state 
tunas regulations to determine if these states should also be included 
under Sec.  635.1(b). NMFS may also review regulations for other HMS 
promulgated to implement ICCAT recommendations for all Atlantic, Gulf 
of Mexico, and Caribbean states and territories to determine if their 
regulations are at least as restrictive as the Federal regulations. 
NMFS requests public comment on possible initiation of these future 
reviews. Currently, Federal HMS regulations concerning swordfish, 
billfish, and sharks do not apply in state waters as a condition of 
Federal HMS Atlantic Tunas permits.

Request for Comments

    Comments on this proposed rule may be submitted via 
www.regulations.gov or at a public conference call/webinar. NMFS 
solicits comments on this proposed rule by June 10, 2021 (see DATES and 
ADDRESSES).
    During the comment period, NMFS will hold a conference call/webinar 
for this proposed rule. Requests for sign language interpretation or 
other auxiliary aids should be directed to Carrie Soltanoff at 
[email protected] or 301-427-8503, at least 7 days prior to the 
meeting.
    The webinar/conference call will take place on May 14, 2021. 
Information for registering and accessing the webinars can be found at 
https://www.fisheries.noaa.gov/action/proposed-rule-implement-federal-atlantic-tunas-regulations-maine-state-waters.
    The public is reminded that NMFS expects participants at the public 
hearings to conduct themselves appropriately. At the beginning of the 
conference call, the moderator will explain how the conference call 
will be conducted and how and when attendees can provide comments. The 
NMFS representative will attempt to structure the meeting so that all 
the attending members of the public will be able to comment, if they so 
choose, regardless of the controversial nature of the subject(s). 
Attendees are expected to respect the ground rules, and, if they do 
they may not be allowed to speak during the conference call.

Classification

    The NMFS Assistant Administrator has determined that the proposed 
rule is consistent with the 2006 Consolidated Atlantic HMS FMP and its 
amendments, the Magnuson-Stevens Act, and other applicable laws, 
subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This proposed rule does not contain a change to a collection of 
information requirement for purposes of the Paperwork Reduction Act of 
1995. The existing collection of information requirements would 
continue to apply under the following OMB Control Number(s): 0648-0327 
Atlantic HMS Permit Family of Forms, 0648-0328 Atlantic HMS 
Recreational Landings Reports, and 0648-0371 HMS Vessel Logbooks and 
Cost-Earnings Reports.
    The Chief Counsel for Regulation of the Department of Commerce 
certified

[[Page 22009]]

to the Chief Counsel for Advocacy of the Small Business Administration 
that this proposed rule, if adopted, would not have a significant 
economic impact on a substantial number of small entities. The proposed 
rule would add Maine to the list of states at 50 CFR 635.1(b) for which 
NMFS has determined that Federal Atlantic tunas regulations under 50 
CFR part 635 are applicable within state waters. Federal Atlantic tunas 
regulations, which include open and closed seasons, retention limits, 
size limits, authorized gears and gear restrictions, and permitting and 
reporting requirements, among others, currently apply in all but three 
states bordering the Atlantic Ocean (including the Gulf of Mexico). 
This addition to the list of states was requested by the MEDMR and 
further evaluated. ATCA requires the Secretary of Commerce to undertake 
a continuing review of state laws and regulations pertaining to species 
managed under ATCA, of all states bordering the Atlantic Ocean and the 
extent to which such laws and regulations are enforced, as implemented 
in the Atlantic HMS regulations at Sec.  635.1(b).
    Of the managed Atlantic tunas (bluefin, bigeye, albacore, 
yellowfin, and skipjack), typically only bluefin tuna is found as far 
north as Maine state waters. Therefore, the economic analyses for this 
action focus on the bluefin tuna fisheries. However, all Federal tunas 
regulations would apply in Maine state waters following implementation 
of this rule.
    The Small Business Administration has established size criteria for 
all major industry sectors in the United States, including fish 
harvesters. A business involved in finfish harvesting is classified as 
a small business if it is independently owned and operated, is not 
dominant in its field of operation (including its affiliates), and has 
combined annual receipts not in excess of $19.0 million (NAICS code 
114111, finfish fishing) for all its affiliated operations worldwide. 
The Small Business Administration issued a final interim rule that 
adjusted the size standard for inflation from $7.5 million to $8 
million for business classified under NAICS 487210 scenic and 
sightseeing transportation in water, including the for-hire fishing 
industry, which went into effect on August 19, 2019.
    The most recent ex-vessel average price per pound information is 
used to estimate potential ex-vessel gross revenues for the Atlantic 
bluefin tuna fishery. The 2019 average ex-vessel price per pound for 
bluefin tuna in the North Atlantic was $5.61, while the highest 
regional bluefin tuna ex-vessel price per pound (in the mid-Atlantic) 
was $5.94. Current total commercial bluefin tuna quotas (including the 
Reserve category) are 2,238,706 pounds (1,015 metric tons). Therefore, 
the highest total potential revenue for the entire commercial Atlantic 
bluefin tuna fishery is $13.3 million. The 2019 total ex-vessel annual 
revenue for the bluefin tuna fishery was $9.8 million, while total 
Atlantic tunas ex-vessel annual revenue was $22.9 million. Since a 
small business is defined as having annual receipts not in excess of 
$19.0 million, and total potential bluefin tuna revenue for the entire 
fishery is $13.3 million, each individual bluefin tuna fishing entity 
would fall within the small business definition.
    The numbers of relevant, annual Atlantic Tunas or Atlantic HMS 
vessel permits based in Maine, as of October 2020, are as follows: 565 
Atlantic Tunas General category permits; 12 Atlantic Tunas Harpoon 
category permits; two Atlantic Tunas Trap category permits; four 
Atlantic Tunas Longline category permits; zero Atlantic Tunas Purse 
Seine category permits; and 127 HMS Charter/Headboat category permits. 
For this action, NMFS regards all HMS for-hire vessels (those vessels 
that have an HMS Charter/Headboat category permit) as small businesses, 
while Atlantic HMS Angling vessels fish recreationally only and are 
therefore not considered small entities for purposes of the Regulatory 
Flexibility Act (RFA).
    This proposed rule would expand Federal Atlantic tunas regulations 
into Maine state waters. Federal HMS Charter/Headboat category permit 
holders already must adhere to Federal HMS regulations as a condition 
of their permit (see 50 CFR 635.4(a)(10)). Based on available data on 
commercial catch of tunas in Maine and surrounding waters, it appears 
that tuna catch in the state comes from fishermen who already possess 
Federal permits and are adhering to Federal reporting requirements for 
all catch as well as other Federal tuna regulations, whether they are 
in Federal or state waters. In addition, available catch and dealer 
data, bluefin tuna habitat, and typical tuna fishing practices indicate 
that the majority of tunas landed in Maine have historically been 
caught in Federal waters. Given these factors, this action practically 
would not have an effect on the regulations that tuna fishermen based 
in Maine currently follow. Furthermore, this action is not expected to 
affect the amount of bluefin tuna caught and sold or result in any 
change in the ex-vessel revenues those fishermen could expect. As a 
result, an initial regulatory flexibility analysis is not required and 
none has been prepared. NMFS invites comment from the public on the 
information in this certification and the determination that the impact 
on entities affected by the proposed rule will not be significant.

List of Subjects in 50 CFR Part 635

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

    Dated: April 20, 2021.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 635 is 
proposed to be amended as follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

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

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

0
2. In Sec.  635.1, revise paragraph (b) to read as follows:


Sec.  635.1   Purpose and scope.

* * * * *
    (b) Under section 9(d) of ATCA, NMFS has determined that the 
regulations contained in this part with respect to Atlantic tunas are 
applicable within the territorial sea of the United States adjacent to, 
and within the boundaries of, the States of Maine, New Hampshire, 
Massachusetts, Rhode Island, New York, New Jersey, Delaware, Maryland, 
Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, 
Louisiana, and Texas, and the Commonwealths of Puerto Rico and the 
Virgin Islands. NMFS will undertake a continuing review of State 
regulations to determine if regulations applicable to Atlantic tunas, 
swordfish, or billfish are at least as restrictive as regulations 
contained in this part and if such regulations are effectively 
enforced. In such case, NMFS will file with the Office of the Federal 
Register for publication notification of the basis for the 
determination and of the specific regulations that shall or shall not 
apply in the territorial sea of the identified State.

[FR Doc. 2021-08481 Filed 4-23-21; 8:45 am]
BILLING CODE 3510-22-P