Atlantic Highly Migratory Species Fisheries; Atlantic Bluefin Tuna Fishery; Regulatory Adjustment

SUMMARY: NMFS proposes to amend the regulations governing the Atlantic

highly migratory species (HMS) fisheries to prohibit fishing vessel

operators from using spotter aircraft to assist in the location and

capture of Atlantic bluefin tuna (BFT) for all vessels other than Purse

Seine category vessels. The proposed regulatory amendments are

necessary to achieve domestic management objectives for HMS fisheries.

NMFS has received extensive comment on this issue during the comment

period for the rule to implement the Fishery Management Plan for

Atlantic Tunas, Swordfish, and Sharks (HMS FMP) and during previous

related comment periods. However, NMFS will hold two public hearings to

receive additional comments from fishery participants and other members

of the public regarding these proposed amendments.

DATES: Comments are invited and must be received on or before June 22,

1999. The public hearings dates are:

1. Monday, June 14, 1999, 2-5 p.m. in Silver Spring, MD.

2. Tuesday, June 15, 1999, 7-10 p.m. in Gloucester, MA.

ADDRESSES: Comments on the proposed rule should be sent to, Rebecca

Lent, Chief, Highly Migratory Species Management Division (F/SF1),

NMFS, 1315 East-West Highway, Silver Spring, MD 20910-3282. Copies of

supporting documents, including a Draft Environmental Assessment (EA),

which includes a Draft Regulatory Impact Review and an Initial

Regulatory Flexibility Analysis (IRFA), are available from Brad McHale,

Highly Migratory Species Management Division, Northeast Regional

Office, NMFS, One Blackburn Drive, Gloucester, MA 01930.

The public hearing locations are:

1. Silver Spring (Monday June 14, 1999), NMFS, 1315 East-West

Highway, Room 4527, Silver Spring, MD 20910.

2. Gloucester, MA (Tuesday June 15, 1999), Milton Fuller School, 4

School House Road, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Mark Murray-Brown, 978-281-9260.

SUPPLEMENTARY INFORMATION: Atlantic tunas are managed under the dual

authority of the Magnson-Stevens Fishery Conservation and Management

Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act

(ATCA). ATCA authorizes the Secretary of Commerce to implement binding

recommendations of the International Commission for the Conservation of

Atlantic Tunas (ICCAT). The authority to issue regulations under the

Magnuson-Stevens Act and ATCA has been delegated from the Secretary to

the Assistant Administrator for Fisheries, NOAA (AA). Within NMFS,

daily responsibility for management of Atlantic HMS fisheries rests

with the Office of Sustainable Fisheries, and is carried out by the HMS

Management Division.

NMFS proposes this action under the framework provisions described

in the HMS FMP. NMFS believes that the prohibition on the use of

spotter aircraft assistance by fishing vessel operators (other than

those in the Purse Seine category) in the location and capture of

Atlantic BFT is a necessary regulatory action in order to meet the

goals and objectives of the FMP.

After reviewing public comments and additional information or data

that may be available, NMFS will, if appropriate, make final

determinations regarding the consistency of this proposed measure with

the objectives of the FMP, the national standards of the Magnuson-

Stevens Act, and other applicable law. Within 30 days of the close of

the public comment period, NMFS will take final action.

Background

Background information on the use of spotter aircraft in the BFT

fishery was provided in the HMS FMP, released in April 1999, and is

provided in greater detail in the Draft EA.

Relation to Previous Rulemaking

NMFS has, on four prior occasions (in 1988, 1989, 1996, and 1997),

requested specific comments on the impacts of spotter aircraft use in

the BFT fishery. NMFS has proposed prohibiting the use of spotter

aircraft by all but Purse Seine category vessels twice, and, in 1997,

published a final rule to prohibit the use of spotter aircraft by all

but Purse Seine and Harpoon category vessels. Prior to 1997, NMFS did

not take final action due to concerns about the enforceability of

spotter aircraft regulations. Additionally, in 1996, the majority of

active tuna spotters signed a voluntary agreement limiting their

activity to assisting vessels using harpoon gear. NMFS recognized that

the voluntary agreement warranted a trial period, but also indicated

that the agency would continue to monitor the situation and would take

appropriate action if necessary. Public comment indicated that some

rod-and-reel vessels in the General category were using spotter

aircraft contrary to the terms of the agreement.

On March 4, 1997 (62 FR 9726), NMFS proposed to prohibit the use of

spotter aircraft except in the Purse Seine category fishery. NMFS

indicated that it had considered combining the Harpoon and General

categories as a means of resolving catch rate and safety issues (since

a daily catch limit of one BFT per vessel for all handgear fishermen

would decrease the incentive for spotter aircraft use), but was

concerned that the harpoon fishery, as it had traditionally existed,

might not be able to continue under such restriction. NMFS requested

comment on suggestions from constituents that self-policing would

assist with enforcement of a spotter aircraft prohibition, and on

alternative measures to address the fishery management and safety

issues raised by use of spotter aircraft in the BFT fishery. In

response, NMFS received nearly 2,000 comments on the proposed

prohibition on the use of spotter aircraft. On July 18, 1997 (62 FR

38487), NMFS published a final rule prohibiting the use of spotter

aircraft to assist vessels in all but the Purse Seine and Harpoon

categories.

In response to a lawsuit filed by the Atlantic Fish Spotters

Association, the United States District Court for Massachusetts, on

June 10, 1998, overturned the prohibition on the use of spotter

aircraft in assisting BFT vessels in other than the Harpoon and Purse

Seine categories, as codified in 50 CFR 285.31(a)(40); the prohibition

is now void. NMFS decided not to appeal the Court's decision, but

rather, to gather more facts and relevant data in order to reach a

satisfactory resolution.

At the August 1998 meeting of the HMS Advisory Panel (AP) in

Warwick, Rhode Island, apart from three abstentions, all members of the

AP requested and advised that NMFS prohibit the use of spotter aircraft

in the BFT fishery. In the draft HMS FMP published in October 1998,

NMFS once again presented alternatives on

[[Page 29985]]

regulating the use of spotter aircraft in the BFT fishery. NMFS did not

propose any changes at that time, pending further deliberation and

analysis, but the agency did indicate that it would address the issue

in a separate rulemaking before the start of the 1999 General and

Harpoon category seasons (June 1, 1999).

In April 1999, NMFS adopted the final HMS FMP. This FMP establishes

a rebuilding program for west Atlantic BFT and brings the management of

Atlantic tuna under the dual authority of the Magnuson-Stevens Act and

ATCA. The Magnuson-Stevens Act and the FMP bring new considerations to

regulating the use of spotter aircraft. In the time since the

prohibition on the use of spotter aircraft in assisting BFT vessels in

other than the Harpoon and Purse Seine categories was overturned (July

1998), NMFS has obtained further information, conducted additional

analyses, and contracted for an independent study regarding the use of

spotter aircraft in the BFT fishery.

NMFS remains concerned that the use of spotter aircraft to locate

BFT accelerates the catch rates and closures in the General and Harpoon

categories. This undermines NMFS' regulations designed to control

effort in the General category, alters the distribution of optimum

yield, and impedes the collection of important scientific information

in the fishery. In addition, the use of spotter aircraft is

inconsistent with the reasoning behind the initial establishment of the

Harpoon category (in which multiple daily landings are allowed) and the

Harpoon category quota in 1980, i.e., dependency on optimal weather and

sea conditions, negatively impacts traditional fisheries and has

adverse impacts on communities. The issue of spotter aircraft use in

the BFT fishery is a source of great conflict in the fishery. Conflicts

in the fishery are exacerbated by the fact that the BFT fishery is a

derby fishery (with the exception of the Purse Seine category), in

which vessels are concentrated on the fishing grounds over short

periods of time. Some commenters have indicated that potential for

accidents at sea is increased by the use, whether direct or indirect,

of spotter aircraft as vessels may congregate under the aircraft. NMFS

has received extensive comment from the public and guidance from the

HMS AP urging NMFS to prohibit the use of spotter aircraft by all

vessels in the BFT fishery other than those in the Purse Seine

category.

After a review of all the information on record regarding this

issue, NMFS has determined that the status quo is unacceptable and that

the proposed action would best address the management concerns

regarding spotter aircraft use in the BFT fishery, while ensuring that

the objectives of the FMP are met, consistent with the Magnuson-Stevens

Act and that Act's national standards.

Spotter Aircraft

This proposed rule would prohibit the use of spotter aircraft to

assist fishing vessels in the location and capture of BFT, with the

exception of Purse Seine category vessels.

Permit Category Deadline Change

Within 1 week, NMFS will announce, in the Federal Register, the

deadline to change Atlantic tuna permit categories for calendar year

1999. Previously, NMFS suspended this deadline to allow vessel owners

to weigh the impacts of various rulemakings on each permit category (64

FR 27207, May 19, 1999).

Public Hearings and Special Accommodations

The public hearing sites are physically accessible to people with

disabilities. Requests for sign language interpretation or other

auxiliary aids should be directed to Mark Murray-Brown (see FOR FURTHER

INFORMATION CONTACT) at least 7 days prior to the hearing.

The public is reminded that NMFS expects participants at the public

hearings to conduct themselves appropriately. At the beginning of each

public hearing, a NMFS representative will explain the ground rules

(e.g., alcohol in the hearing room is prohibited, attendees will be

called to give their comments in the order in which they registered to

speak, each attendee will have an equal amount of time to speak, and

attendees should not interrupt one another). The NMFS representative

will attempt to structure the hearing so that all attending members of

the public are able to comment, if they so choose, regardless of the

controversiality of the subject(s). Attendees are expected to respect

the ground rules, and if they do not, they will be asked to leave the

hearing.

Classification

This proposed rule is published under the authority of the

Magnuson-Stevens Act, 16 U.S.C. 1801 et seq., and the Atlantic Tunas

Convention Act, 16 U.S.C. 971 et seq. Preliminarily, the AA has

determined that the regulations contained in this proposed rule are

consistent with the FMP, the Magnuson-Stevens Act, and the 1998 ICCAT

recommendation (ICCAT Rebuilding Program).

NMFS has prepared a draft EA for this proposed rule and has

concluded that, depending on the universe of potentially impacted small

business entities involved in the BFT fishery chosen for analysis, this

action may or may not result in a significant impact on small entities

in the fishery as a whole. Therefore, NMFS has prepared an IRFA to

accompany the proposed rule. The reasons this action is being

considered and the objectives of, and legal basis for, the proposed

rule are as stated in the preamble above. The IRFA indicates that if

the proposed regulations are implemented, there may be a negative

impact on a significant number of small business entities, including

fishing vessels and spotter aircraft, involved in the BFT fishery. NMFS

estimates that less than 70 small entities, including fishing vessels

and spotter aircraft, would be significantly affected by the proposed

rule. This is less than 1 percent of the small entities participating

in the bluefin tuna fishery in terms of the total number of spotter

aircraft/pilots and commercially-permitted vessels. The impact is

significant for a greater percentage of small entities in the fishery

if one considers only those vessels which land fish as those which are

potentially affected. In addition, these regulations may also impact

related parties and communities such as marinas, gear suppliers, and

aviation-related businesses. There are no relevant Federal rules which

duplicate, overlap, or conflict with the proposed rule. There are no

proposed reporting, recordkeeping or compliance requirements in the

proposed rule. Although the preferred alternative may have a

significant impact on small business entities, NMFS believes that these

impacts are unavoidable if the management concerns regarding spotter

aircraft are to be addressed. NMFS considered several alternatives to

the preferred alternative, including: No action, prohibition of the use

of spotter aircraft for vessels in the General category only, and

requiring registration and reporting for fishing vessels or spotter

aircraft. NMFS has preliminarily determined that none of these

alternatives meet the objectives of, and basis for, this proposed

action.

This proposed rule has been determined to be not significant for

purposes of E.O. 12866.

NMFS initiated formal consultation on the HMS and billfish

fisheries on May 12, 1998. The consultation request concerned the

possible effects of management measures in the HMS FMP

[[Page 29986]]

and Billfish Amendment. On April 23, 1999, NMFS issued a Biological

Opinion (BO) under section 7 of the Endangered Species Act. The BO

applies to the Atlantic pelagic fisheries for tunas, sharks, swordfish,

and billfish.

The harpoon/handline/rod-and-reel gear fisheries are listed as

category III fisheries under the Marine Mammal Authorization Program

due to their remote likelihood of interaction with marine mammals.

Although a few reports of entanglement in handline and harpoon gear

exist, these were likely non-injurious entanglements from which the

whales could easily disentangle themselves or be disentangled.

Increased development of the Disentanglement Network under the Atlantic

Large Whale Take Reduction Plan should provide adequate mitigation for

these infrequent (and thus far, non-lethal) entanglements.

The B.O. states that after reviewing the current status of the

subject species, the environmental baseline for the action area, the

cumulative effects of the continued operation of the Atlantic HMS

fisheries and associated management actions, it is NMFS' biological

opinion that the continued operation of the harpoon/handline/rod-and-

reel gear fisheries is not likely to adversely affect the continued

existence of any endangered or threatened species under NMFS

jurisdiction.

Because the proposed action addresses only the Atlantic BFT

harpoon/handline/rod-and-reel gear fisheries, NMFS has determined that

proceeding with this proposed rule would not result in any irreversible

and irretrievable commitment of resources that would have the effect of

foreclosing the formulation or implementation of any reasonable and

prudent alternative measures. This proposed rule would prohibit of

fishing vessel operators from using spotter aircraft to assist in the

location and capture of BFT for all vessels other than Purse Seine

category vessels. Therefore, the proposed rule is not expected to

increase endangered species or marine mammal interaction rates.

The area in which this proposed action is planned has been

identified as essential fish habitat (EFH) for species managed by the

New England Fishery Management Council, the Mid-Atlantic Fishery

Management Council and the Highly Migratory Species Division of NMFS.

It is not anticipated that this action will have any adverse impacts to

EFH and therefore no consultation is required.

List of Subjects in 50 CFR Part 635

Fisheries, Fishing, Reporting and recordkeeping requirements,

Treaties.

Dated: May 28, 1999.

Andrew A. Rosenberg

Deputy Assistant Administrator for Fisheries, 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

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

follows:

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

2. In Sec. 635.2, the definition for ``aircraft'' is added to read

as follows:

Sec. 635.2 Definitions.

* * * * *

Aircraft means any contrivance used for flight in air.

* * * * *

3. In Sec. 635.21, paragraph (e) is added to read as follows:

Sec. 635.21 Gear operation and deployment restrictions.

* * * * *

(e) Aircraft. Other than for a vessel holding a valid permit in the

Purse Seine category under Sec. 635.4, locating, fishing for, catching,

taking, retaining or possessing, or attempting to locate, fish for,

catch, retain, or possess, bluefin tuna by means, aid, or use of any

aircraft is prohibited.

4. In Sec. 635.71, paragraph (b)(28) is added to read as follows:

Sec. 635.71 Prohibitions.

* * * * *

(b) * * *

(28) Locate, fish for, catch, possess or retain, or attempt to

locate fish for, catch, possess or retain any bluefin tuna by means,

aid, or use of any aircraft, unless holding a valid permit in the Purse

Seine category under Sec. 635.4.

* * * * *

[FR Doc. 99-14138 Filed 6-1-99; 10:51 am]

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