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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 990811217-9217-01; I.D. 061899A]

RIN 0648-AM82

Atlantic Highly Migratory Species Fisheries; Atlantic Bluefin

Tuna Fishery; Regulatory Adjustment

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; public hearings; request for comments.

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SUMMARY: NMFS proposes to amend the regulations governing the Atlantic

highly migratory species (HMS) fisheries to remove the 250 metric ton

(mt) limit on allocating Atlantic bluefin tuna (BFT) landings quota to

the Purse Seine category. Without this restriction, the annual

allocation of BFT to the Purse Seine category would be 18.6 percent of

the total landings quota available to the United States. The proposed

regulatory amendments are necessary to achieve domestic management

objectives for HMS fisheries. NMFS 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 (FMP) and

during a recent meeting of the HMS Advisory Panel (AP). 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 September

27, 1999. The public hearings dates are:

1. Wednesday, September 1, 1999, 3:30-6:00 p.m. in Silver Spring,

MD.

2. Tuesday, September 7, 1999, 7:00-9:00 p.m. in Fairhaven, MA.

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 September

27, 1999. The public hearings dates are:

1. Wednesday, September 1, 1999, 3:30-6:00 p.m. in Silver Spring,

MD.

2. Tuesday, September 7, 1999, 7:00-9:00 p.m. in Fairhaven, 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 (RIR), are available

from Pat Scida, Highly Migratory Species Management Division, Northeast

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

The public hearing locations are:

1. Silver Spring (Wednesday, September 1, 1999), NMFS, SSMC III -

Room 4527, 1315 East-West Highway, Silver Spring, MD 20910.

2. Fairhaven (Tuesday, September 7, 1999), Seaport Inn, 110 Middle

Street, Fairhaven, MA 02719.

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

SUPPLEMENTARY INFORMATION: Atlantic tunas are managed under the dual

authority of the Magnuson-Stevens Fishery Conservation and Management

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

(ATCA). ATCA authorizes the Secretary of Commerce (Secretary) 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

administered by the HMS Management Division.

Background

onservation 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

administered by the HMS Management Division.

Background

Based on the 1998 revised stock assessment, parties at the 1998

meeting of ICCAT adopted a 20-year west Atlantic BFT rebuilding

program, beginning in 1999 and continuing through 2018. ICCAT has

adopted an annual total allowable catch (TAC) for western Atlantic BFT

of 2,500 mt whole weight (ww), inclusive of dead discards, to be

applied annually until such time as the TAC is changed based on advice

from the Standing Committee on Research and Statistics. The annual

landing quota allocated to the United States was set at 1,387 mt ww.

Regulations at 50 CFR 635.27 subdivide the U.S. BFT quota recommended

by ICCAT among the various domestic fishing categories.

On May 28, 1999, NMFS published in the Federal Register (64 FR

29090) final regulations, effective July 1, 1999, implementing the HMS

FMP that was adopted and made available to the public in April 1999.

The HMS FMP and the implementing regulations established percentage

quota shares for the ICCAT-recommended U.S. BFT landing quota for each

of the domestic fishing categories. These percentage shares were based

on historical allocations as had been adjusted in recent years. In the

final rule, NMFS adopted a limit (cap) on the amount of the annual

quota that would be

landings quota available to the U.S. in 1999. NMFS therefore stated in

the HMS FMP that, after later consultation with the HMS AP, the purse

seine cap could be adjusted by regulatory amendment under the framework

provisions of the FMP. Pending that consultation with the HMS AP, NMFS

proceeded to issue final BFT quota specifications for the 1999 fishing

year.

Purse Seine Quota Specification

The ICCAT-recommended 1999 U.S. BFT landings quota is 1,387 mt,

18.6 percent of which is 258 mt, or 8 mt over the cap. NMFS indicated

in the HMS FMP that the additional 8 mt would be held in reserve until

after the AP had discussed the issue. Thus, under the regulatory cap,

the Purse Seine category was initially allocated a 250 mt BFT landings

quota for 1999, and the additional 8 mt were allocated to the Reserve

category. Given the regulatory provisions for interannual adjustments,

an additional 2 mt Purse Seine category quota that was not harvested in

1998 was added to the category's quota for 1999, for an adjusted Purse

Seine category quota of 252 mt (64 FR 29806, June 3, 1999).

The AP met in Silver Spring, MD on June 10 and June 11, 1999, and

discussed, among other things, the Purse Seine category cap. After

extensive discussion, a majority favored removal of the cap. The AP

provided information and advice to NMFS on the issue of fairness in the

context of allocation to the Purse Seine category. Among the points

used by the AP in support of removing the cap were the following: (1) a

cap on one category and not on others is not fair and equitable, (2) a

cap on the only category in the fishery which is managed under limited

access does not promote the objectives of limited access management

systems, and (3) retention of a cap on the Purse Seine category's BFT

quota allocation may cause purse seine vessels to increase fishing

effort on yellowfin tuna, which is an important commercial and

recreational species for vessels in other Atlantic tunas permit

categories, and for which there is an ICCAT r

ed under limited

access does not promote the objectives of limited access management

systems, and (3) retention of a cap on the Purse Seine category's BFT

quota allocation may cause purse seine vessels to increase fishing

effort on yellowfin tuna, which is an important commercial and

recreational species for vessels in other Atlantic tunas permit

categories, and for which there is an ICCAT recommendation in place to

limit effective fishing effort.

After considering the input from the HMS AP, NMFS transferred 8 mt

of BFT quota from the Reserve to the Purse Seine category (64 FR 36818,

July 8, 1999) for the 1999 fishing year. As a result of this transfer,

the adjusted Purse Seine category quota for 1999 is 260 mt.

Proposed Management Measure

In addition to its commitment to considering the AP's advice on

this issue, as stated in the FMP and its implementing regulations, NMFS

is concerned that Purse Seine category vessels may increase fishing

effort on yellowfin tuna if the cap is retained. As mentioned earlier,

yellowfin tuna is an important commercial and recreational species for

vessels in other Atlantic tunas permit categories, and for which there

is an ICCAT recommendation in place to limit effective fishing effort.

As yellowfin tuna is considered a fully-exploited species, and the

latest ICCAT Standing Committee on Research and Statistics report

indicates that the current fishing mortality may be higher than that

which would support maximum sustainable yield on a continuing basis,

any additional fishing effort directed at yellowfin tuna could have

adverse impacts on optimum yield in that fishery.

Removing the cap on the Purse Seine category is also consistent

with the Magnuson-Stevens Act in that it contributes to the goal of

allocating restrictions needed to prevent overfishing and recovery

benefits from rebuilding fairly and equitably among sectors of the

fishery, in that no one quota category would be restricted in its

allocation while others would not

timum yield in that fishery.

Removing the cap on the Purse Seine category is also consistent

with the Magnuson-Stevens Act in that it contributes to the goal of

allocating restrictions needed to prevent overfishing and recovery

benefits from rebuilding fairly and equitably among sectors of the

fishery, in that no one quota category would be restricted in its

allocation while others would not. It is also consistent with the

objectives of the FMP to preserve traditional fisheries and historical

fishing patterns, in the fact that the Purse Seine fishery is a

historical component of the overall U.S. Atlantic BFT fishery,

participating in the fishery since the 1950's.

NMFS proposes this action to remove the purse seine allocation cap

under the framework provisions described in the FMP. NMFS believes that

the allocation of a percentage of the BFT landings quota, without a

cap, is consistent with management measures in the FMP, and is an

appropriate 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.

Technical Correction

When NMFS first established a limited access and individual vessel

allocation system for the Purse Seine category, the vessel allocations

were made transferable. Initially, the allocations were transferable in

whole, but in subsequent rulemaking, the allocations were made

transferable in whole or in part (61 FR 30187, June 14, 1996). The

allowance for partial transfers was made to reduce bycatch mortality

during the last few sets as vessels approached the limits of individual

allocations

Seine category, the vessel allocations

were made transferable. Initially, the allocations were transferable in

whole, but in subsequent rulemaking, the allocations were made

transferable in whole or in part (61 FR 30187, June 14, 1996). The

allowance for partial transfers was made to reduce bycatch mortality

during the last few sets as vessels approached the limits of individual

allocations. In the final consolidated rule to implement the HMS FMP,

NMFS inadvertently reissued the older procedures for notification of

transfer of the entire allocation from one permitted purse seine vessel

to another, omitting the newer procedures for notification of partial

transfers. The proposed rule would reinstate updated notification

procedures for transfers.

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 is prohibited from the hearing room, 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,

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

nt of time to speak,

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 prepared a draft EA for this proposed rule with a preliminary

finding of no significant impact on the human environment. In addition,

a draft RIR was prepared with a preliminary finding of no significant

impact. The reasons this action is being considered and the objectives

of, and legal basis for, the proposed rule are as stated in the

preamble here. There are no relevant Federal rules which duplicate,

overlap, or conflict with the proposed rule. NMFS considered

alternatives to the preferred alternative, including: no action

(maintaining cap of 250 mt for the Purse Seine category), removal of

the cap on the Purse Seine category, and reduction of the Purse Seine

category percentage share allocation by 50 percent.

Notwithstanding any other provision of law, no person is required

to respond to, nor shall any person be subject to a penalty for failure

to comply with, a collection-of-information subject to the requirements

of the Paperwork Reduction Act (PRA), unless that collection of

information displays a currently valid Office of Management and Budget

(OMB) control number.

This proposed rule restates an information collection requirement

relating to purse seine landings quota allocations

l any person be subject to a penalty for failure

to comply with, a collection-of-information subject to the requirements

of the Paperwork Reduction Act (PRA), unless that collection of

information displays a currently valid Office of Management and Budget

(OMB) control number.

This proposed rule restates an information collection requirement

relating to purse seine landings quota allocations. Written requests

for purse seine allocations for Atlantic tunas and notification of

transfers as required under Sec. 635.27 are not currently approved by

OMB. However, requests for purse seine allocations and transfer

notifications are not subject to the PRA because, under current

regulations, a maximum of five vessels could be subject to reporting

under this requirement. Since it is impossible for 10 or more

respondents to be involved, the information collection is exempt from

the PRA clearance requirement.

The Chief Counsel for Regulation of the Department of Commerce has

certified to the Chief Counsel for Advocacy of the Small Business

Administration that the proposed rule, if implemented, would not have a

significant economic impact on a substantial number of small entities

as follows:

The proposed rule would remove the 250 metric ton (mt) maximum

allocation restriction (cap) on the Purse Seine fishery for Atlantic

bluefin tuna (BFT), establishing the Purse Seine category BFT quota

allocation at 18.6 percent of the overall U.S. BFT landings quota

(1,347 metric tons for 1999). Because the overall U.S. BFT landings

quota would remain the same, and the amount of BFT quota that would

be allocated to the Purse Seine category through this proposed

action (8 metric tons) was previously allocated to the Reserve, and

not to any particular fishing category, additional revenues would

accrue to small businesses associated with the purse seine fishery

without directly affecting other fishing categories.

landings

quota would remain the same, and the amount of BFT quota that would

be allocated to the Purse Seine category through this proposed

action (8 metric tons) was previously allocated to the Reserve, and

not to any particular fishing category, additional revenues would

accrue to small businesses associated with the purse seine fishery

without directly affecting other fishing categories.

Because of this certification, an Initial Regulatory Flexibility

Analysis was not prepared.

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 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 BFT purse seine fishery is currently listed as a category III

fisheries under the Marine Mammal Protection Act. This fishery was

observed in 1996, with near 100-percent coverage. Six pilot whales, one

humpback whale, and one minke whale were observed as encircled by the

nets during the fishery. All were released alive or dove under the nets

and escaped before being pursed. Purse seines are set when a school of

fish is located, after which the vessel pays out the net in a circle

around the school. This affords considerable control over what is

encircled by the net and the net does not remain in the water for any

considerable amount of time. Therefore, this gear-type is not likely to

result in mortality or serious injury of marine mammals or sea turtles

g pursed. Purse seines are set when a school of

fish is located, after which the vessel pays out the net in a circle

around the school. This affords considerable control over what is

encircled by the net and the net does not remain in the water for any

considerable amount of time. Therefore, this gear-type is not likely to

result in mortality or serious injury of marine mammals or sea turtles.

The BO states that after reviewing the current status of the

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

effects of the continued operation of the Atlantic HMS fisheries and

associated management actions, and the cumulative effects, it is NMFS'

BO that the continued operation of the purse seine fishery may

adversely affect, but is not likely to jeopardize the continued

existence of any endangered or threatened species under NMFS

jurisdiction. A similar conclusion was reached for the other fisheries

which are allocated BFT quota - the Atlantic pelagic longline fishery

and the harpoon, hand gear, and rod and reel fisheries for Atlantic

HMS.

This proposed rule would remove the 250 mt cap on the annual Purse

Seine category BFT quota allocation. Because the only fisheries which

may be affected by this proposed rule are Category III fisheries, 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.

FH) 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: August 12, 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. 635.27, introductory paragraph (a) and paragraphs

(a)(4)(i) and (iii) are revised to read as follows:

Sec. 635.27 Quotas.

(a) BFT. Consistent with ICCAT recommendations, NMFS will subtract

any allowance for dead discards from the fishing year's total U.S.

quota for BFT that can be caught and allocate the remainder to be

retained, possessed, or landed by persons and vessels subject to U.S.

jurisdiction. The total landing quota will be divided among the

General, Angling, Harpoon, Purse Seine, Longline, and Trap categories.

Consistent with these allocations and other applicable restrictions of

this part, BFT may be taken by persons aboard vessels issued Atlantic

Tunas permits or HMS Charter/Headboat permits. Allocations of the BFT

landings quota will be made according to the following percentages:

General - 47.1 percent; Angling - 19.7 percent, which includes

Harpoon, Purse Seine, Longline, and Trap categories.

Consistent with these allocations and other applicable restrictions of

this part, BFT may be taken by persons aboard vessels issued Atlantic

Tunas permits or HMS Charter/Headboat permits. Allocations of the BFT

landings quota will be made according to the following percentages:

General - 47.1 percent; Angling - 19.7 percent, which includes

the school BFT held in reserve as described under paragraph (a)(7)(ii)

of this section; Harpoon - 3.9 percent; Purse Seine - 18.6 percent;

Longline - 8.1 percent; and Trap - 0.1 percent. The remaining 2.5

percent of the BFT landings quota will be held in reserve for inseason

adjustments, to compensate for overharvest in any category other than

the Angling category school BFT subquota or for fishery independent

research. NMFS may apportion a landings quota allocated to any category

to specified fishing periods or to geographic areas. BFT landings

quotas are specified in whole weight.

* * * * *

(4) Purse Seine category quota. (i) The total amount of large

medium and giant BFT that may be caught, retained, possessed, or landed

by vessels for which Purse Seine category Atlantic Tunas permits have

been issued is 18.6 percent of the overall U.S. BFT landings quota. The

Purse Seine fishery under this quota commences on August 15 each year.

* * * * *

(iii) On or about May 1, NMFS will make equal allocations of the

available size classes of BFT among purse seine vessel permit holders

so requesting. Such allocations are freely transferable, in whole or in

part, among vessels that have Purse Seine category Atlantic Tunas

permits. Any purse seine vessel permit holder intending to land bluefin

tuna under an allocation transferred from another purse seine vessel

permit holder must provide written notice of such intent to NMFS, at an

address designated by NMFS, 3 days before landing any such bluefin

tuna

ons are freely transferable, in whole or in

part, among vessels that have Purse Seine category Atlantic Tunas

permits. Any purse seine vessel permit holder intending to land bluefin

tuna under an allocation transferred from another purse seine vessel

permit holder must provide written notice of such intent to NMFS, at an

address designated by NMFS, 3 days before landing any such bluefin

tuna. Such notification must include the transfer date, amount (mt)

transferred, and the permit numbers of vessels involved in the

transfer. Trip or seasonal catch limits otherwise applicable under

Sec. 635.23(e) are not altered by transfers of bluefin tuna allocation.

Purse seine vessel permit holders who, through landing and/or transfer,

have no remaining bluefin tuna allocation may not use their permitted

vessels in any fishery in which Atlantic bluefin tuna might be caught,

regardless of whether retained.

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[FR Doc. 99-21344 Filed 8-12-99; 3:18 pm]

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