[Federal Register Volume 64, Number 210 (Monday, November 1, 1999)]
[Rules and Regulations]
[Pages 58793-58796]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28464]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No. 990811217-9286-02; 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: Final rule.
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SUMMARY: NMFS amends 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 will be 18.6 percent of the total
landings quota available to the United States. This regulatory
amendment is necessary to achieve domestic management objectives for
HMS fisheries as set forth in the Fishery Management Plan for Atlantic
Tunas, Swordfish, and Sharks (HMS FMP). NMFS also amends the
regulations governing the Atlantic HMS fisheries to reinstate the
transferability of partial purse seine vessel quota allocations from
one vessel to another, which was inadvertently dropped from the
regulations when NMFS published the final consolidated rule to
implement the HMS FMP.
[[Page 58794]]
DATES: Effective December 1, 1999.
ADDRESSES: Copies of supporting documents, including a Final
Environmental Assessment (EA), which includes a Regulatory Impact
Review (RIR), are available from Pat Scida, Highly Migratory Species
Management Division, Northeast Regional Office, NMFS, One Blackburn
Drive, Gloucester, MA 01930.
FOR FURTHER INFORMATION CONTACT: Pat Scida, 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 information about the need for revisions to the HMS
regulations was provided in the preamble to the proposed rule (64 FR
44885, August 18, 1999) in the HMS FMP, and in the final consolidated
rule to implement the HMS FMP (64 FR 29090, May 28, 1999) and is not
repeated here. The final EA contains further detail on the consequences
of this action and alternatives. Copies of the final EA can be obtained
from NMFS (see ADDRESSES).
By this final rule, NMFS removes the purse seine allocation cap
under the framework provisions described in the FMP, and reinstates the
transferability of Purse Seine category vessel allocations on a partial
basis.
Comments and Responses
NMFS conducted two public hearings on the proposed rule and
received written and oral comments over a 45-day comment period. The
majority of the comments received were in support of the proposed rule,
although NMFS did receive comments in opposition. Responses to the
comments on the Purse Seine category allocation issue are provided
here.
Opposed to the Proposed Rule
Comment 1: The Purse Seine category allocation gives too much
quota to too few people, even with the cap. This is a misappropriation
of a public resource.
Response: As described in the HMS FMP, NMFS bases the quota
allocations on consideration of several factors, including the
collection of the broadest possible array of scientific data and the
optimization of social and economic benefits. When NMFS established the
current limited entry system with non-transferable individual vessel
quotas (IVQs) for purse seining in 1982, NMFS considered the relevant
factors outlined in section 303(b)(6) of the Magnuson-Stevens Act. In
1992, NMFS established ``baseline'' quotas for all categories, which
were based on the historical share of landings in each of these
categories from 1983 through 1991 and were consistent with the need to
collect scientific information required to monitor the stock. In 1995,
NMFS reduced the Purse Seine category base quota by 51 mt, in large
part because the West Atlantic BFT quota was a scientific monitoring
quota at the time, and the Purse Seine category does not contribute to
a catch per unit effort time series used to estimate trends in stock
size, and other categories that do provide this information were
subject to premature closures. This reduced quota was the basis for the
allocations to the Purse Seine category from 1996 through 1998.
Considering the historical participation of those in the purse seine
fishery, NMFS does not believe that the 18.6 percent allocation to the
Purse Seine category, with respect to the FMP objectives, constitutes
an excessive share of the bluefin tuna quota.
Comment 2: The Purse Seine category cap should be maintained for
the time being, and, eventually, the Purse Seine category quota should
be reduced because there would be greater economic benefits to the
Nation by distributing more quota to the recreational sector.
Response: Although reallocation of quota from the commercial sector
to the recreational sector may provide greater economic benefits to the
Nation, the Magnuson-Stevens Act requires allocations to be fair and
equitable, to take into consideration traditional fishing patterns, and
to minimize economic displacement. In addition, overfishing
restrictions and recovery benefits (i.e., quota decreases or increases)
must be shared by all sectors of a fishery. In fact, National Standard
5 states that no conservation and management measure should have
economic allocation as its sole purpose. Considering all relevant
factors, removal of the cap is justified.
Comment 3: The Purse Seine category should be eliminated, and the
fishery should only be for rod and reel fishermen.
Response: NMFS disagrees. The purse seine fishery is a historical
sector of the U.S. BFT fishery. As mentioned earlier, based on
consideration of the historical participation of those in the fishery,
NMFS does not believe that the allocation to the Purse Seine category
constitutes an excessive share of the bluefin tuna quota.
Comment 4: The cap on the Purse Seine category should remain in
place so long as the Purse Seine category is closed to new participants
and other categories are open access.
Response: The fact that the Purse Seine category is managed under a
limited access IVQ system and purse seine vessels remain somewhat
isolated from competition while the other quota categories are not, was
part of the justification for NMFS adopting the purse seine allocation
cap in the HMS FMP. However, NMFS did note that the HMS Advisory Panel
(AP) did not have an opportunity to address the Purse Seine quota in
the context of a quota increase from ICCAT, and further noted that the
agency would consider the future input of the AP on this issue. After
extensive discussion, a clear majority of the AP favored removal of the
cap on the Purse Seine category. Removal of the cap is consistent with
the Magnuson-Stevens Act; otherwise, one quota category would have a
cap while others do not. Thus, removing the cap contributes to the goal
of fair and equitable allocation of restrictions needed to prevent
overfishing. Furthermore, NMFS continues to investigate limited access
in the other BFT quota categories (limited access has already been
implemented for the Longline category) and will assess whether limited
access in these other categories would be more effective in reducing
the derby nature of these fisheries than increased allocations.
In Support of the Proposed Rule
Comment 5: Removal of the cap is consistent with the Magnuson-
Stevens Act and the objectives of the HMS FMP. Specifically,
allocations should be fair and equitable, should take into
consideration traditional fishing patterns, and should minimize
economic displacement. In addition, overfishing restrictions and
recovery benefits (i.e., quota decreases or increases) must be shared
by all sectors of a fishery. The Purse Seine category cap precludes one
fishing sector from sharing the benefits of stock recovery.
Response: NMFS agrees. In this instance, limiting the quota
allocation of one fishing sector while not limiting others is
inconsistent with the
[[Page 58795]]
Magnuson-Stevens Act requirement of allocating overfishing restrictions
and recovery benefits fairly and equitably among sectors of the
fishery. This action is also consistent with the objectives of the FMP
to preserve traditional fisheries and historical fishing patterns. The
purse seine fishery is a historical part of the overall U.S. BFT
fishery, having participated in the fishery since the 1950's.
Comment 6: The purse seiners have already had their quota reduced
by a significant amount over the last decade and should not have their
quota decreased further. Maintaining the cap would require greater
allocation to other sectors, allowing smaller fish to be caught - the
opposite of what stock rebuilding requires.
Response: NMFS agrees that the Purse Seine category BFT quota has
been reduced over the past decade, as described. However, NMFS
disagrees that, at current catch levels, maintaining the purse seine
cap would negatively affect stock rebuilding. The amount of quota
reallocated to other categories (8 mt under current quotas) if the cap
were maintained would not significantly affect the size-composition of
catch in order to effect rebuilding.
Comment 7: The AP supported removal of the cap, and NMFS should
follow the AP's advice; otherwise, the AP process is undermined.
Response: As mentioned earlier and in the EA/RIR, the AP met in
June 1999, and, after extensive discussion of the Purse Seine category
cap issue, a clear majority favored removal of the cap. Given the
considerations stated, it is appropriate in this instance to follow the
AP's advice.
Comment 8: Elimination of the cap is inconsistent with the policy
of promoting limited access. By capping only one sector of the fishery,
citing the fact that it is limited access as a reason for the cap,
sends a message that limiting access in a fishery may result in a
category having its quota capped or reduced.
Response: The purpose of the purse seine cap was not related to
promoting or discouraging limited access. NMFS continues to investigate
limited access in the other BFT quota categories (limited access has
already been implemented for the Longline category) and will assess
whether limited access in these other categories may be more effective
at reducing the derby nature of these fisheries than increased
allocations.
Other
Comment 9: The removal of the cap on the Purse Seine category BFT
allocation should not be tied by regulation or other administrative
action to restrictions on current or future participation by purse
seine vessels in the yellowfin tuna fishery. Through a 1995 rulemaking,
the United States has already implemented the 1993 ICCAT recommendation
to cap fishing effort on yellowfin tuna, with respect to purse seine
gear, by limiting the number of vessels authorized to fish for
yellowfin tuna.
Response: While action to limit access (vessel permits) to the
purse seine fishery for yellowfin and other Atlantic tunas was taken in
1995 to implement the 1993 ICCAT recommendation, NMFS clarifies that no
additional action is being taken at this time to restrict purse seine
effort targeting Atlantic tunas other than bluefin. However, it is
recognized that removing the cap on BFT allocation may contribute to
limiting purse seine effort on yellowfin tuna by increasing purse seine
effort in the BFT fishery. Further action may be necessary to implement
the ICCAT yellowfin tuna recommendation in the future, including action
affecting the purse seine fishery.
Classification
This 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. The AA has determined that the regulations contained
in this final rule are consistent with the FMP, the Magnuson-Stevens
Act, and the 1998 ICCAT recommendation (ICCAT Rebuilding Program).
NMFS prepared an EA for this final rule with a finding of no
significant impact on the human environment. In addition, an RIR was
prepared with a finding of no significant impact. The reasons this
action is being adopted and the objectives of, and legal basis for, the
final rule are as stated in the EA/RIR and the preamble to the proposed
rule. There are no relevant Federal rules which duplicate, overlap, or
conflict with the final rule. NMFS considered alternatives to the final
action, including: no action (maintaining cap of 250 mt for the Purse
Seine category) and reduction of the Purse Seine category share 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 final 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
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.
No comments were received that would alter the basis for this
determination. Therefore, no Regulatory Flexibility Analysis was
prepared.
This final 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. The BO states that it
is NMFS' opinion 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. NMFS' Office of Protected Resources has concluded that
this rulemaking would not cause any effect on listed species not
previously considered in the BO and that reinitiation of consultation
on the HMS FMP due to this rulemaking is not required.
The area in which purse seine fishing for BFT takes place has been
identified as essential fish habitat 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
[[Page 58796]]
EFH and therefore no consultation is required.
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Reporting and recordkeeping requirements,
Treaties.
Dated: October 26, 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 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 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. 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.
* * * * *
[FR Doc. 99-28464 Filed 10-27-99; 11:33 am]
BILLING CODE 3510-22-F
