Atlantic Highly Migratory Species (HMS); Atlantic Bluefin Tuna Specifications and HMS Regulatory Amendment

AGENCY:

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

ACTION:

Proposed annual quota specifications and regulatory amendment; public hearings; request for comments.

SUMMARY:

NMFS proposes specifications for the Atlantic bluefin tuna (BFT) fishery to set BFT quota and General category effort control specifications for the 2000 fishing year. NMFS also proposes to amend the regulations governing the Atlantic HMS fisheries to adjust the date on which the BFT General category fishing season ends; adjust the date on which BFT allocations become available to Atlantic tunas Purse Seine category vessel owners; authorize NMFS to add the underharvest to, or subtract the overharvest from, individual Purse Seine category vessels' allocations for the following fishing year on a per vessel basis; revise text regarding restricted fishing days (RFDs) in the General category BFT fishery; and revise text regarding authorized gear in the North Atlantic swordfish fishery. The proposed specifications and regulatory amendment are necessary to implement the 1998 recommendation 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 will hold public hearings to receive comments from fishery participants and other members of the public regarding the proposed specifications and regulatory amendment.

DATES:

Written comments must be received on or before June 19, 2000.

The public hearings dates are:

1. Tuesday, May 30, 2000, 7-9 p.m., Gloucester, MA.

2. Wednesday, May 31, 2000, 9-11 a.m., Silver Spring, MD.

ADDRESSES:

Written comments on the proposed specifications and regulatory amendment should be sent to Rebecca Lent, Chief, Highly Migratory Species Management Division, Office of Sustainable Fisheries (F/SF1), NMFS, 1315 East-West Highway, Silver Spring, MD 20910-3282. Comments also may be sent via facsimile (fax) to (301) 713-1917. Comments will not be accepted if submitted via e-mail or the Internet.

The public hearing locations are:

1. Silver Spring-NMFS, SSMC III—Room 4527, 1315 East-West Highway, Silver Spring, MD 20910.

2. Gloucester-Milton Fuller School, 4 School House Road. Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT:

Pat Scida or Sarah McLaughlin, (978) 281-9260.

SUPPLEMENTARY INFORMATION:

Atlantic tunas are managed under the dual authority of the Magnuson-Stevens Act and ATCA. ATCA authorizes the Secretary of Commerce (Secretary) to implement binding recommendations of 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).

Background

On May 28, 1999, NMFS published in the Federal Register (64 FR 29090) final regulations, effective July 1, 1999, implementing the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (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 each of the domestic fishing categories of the ICCAT-recommended U.S. BFT landings quota of 1,387 metric tons (mt). These percentage shares were based on allocation procedures that had been developed by NMFS in recent years.

The HMS FMP also established a new fishing year for the Atlantic tunas fisheries, beginning June 1 each calendar year and continuing until May 31 of the subsequent calendar year. NMFS specified the 1999 fishing year BFT quota allocations in June 1999, reflecting underharvests or overharvests from the 1998 calendar year, as appropriate for each fishing category (64 FR 29806, June 3, 1999). Subsequently, NMFS made inseason quota adjustments to account for underharvest or overharvest for the period from January 1, 1999, through May 31, 1999; these adjustments were required to make the transition to the new fishing year (64 FR 48111, September 2, 1999).

NMFS then amended the HMS regulations to remove the 250-mt limit on allocating BFT landings quota to the Purse Seine category (64 FR 58793, November 1, 1999). This rulemaking also reinstated the transferability of partial purse seine vessel quota allocations from one vessel to another, which was inadvertently omitted from the consolidated regulations to implement the HMS FMP.

NMFS proposes the fishing year 2000 BFT quota specifications under the annual adjustment procedures of the HMS FMP. Also in accordance with the HMS FMP, NMFS proposes the General category effort control schedule, including time-period subquotas and RFDs, for the upcoming fishing season. After consideration of public comment, NMFS will issue final specifications and publish them in the Federal Register.

Domestic Quota Allocation

NMFS proposes fishing category allocations for the 2000 fishing year, beginning June 1, 2000, consistent with the HMS FMP and the 1,387 mt U.S. allocation. The percentage quota shares established in the HMS FMP for fishing years beginning June 1, 1999, as amended by the Purse Seine category adjustment discussed above, are as follows (tonnage in parentheses corresponds to 1,387 mt total quota): General category -- 47.1 percent (653.3 mt); Harpoon category—3.9 percent (54.1 mt); Purse Seine category—18.6 percent (258.0 mt); Angling category—19.7 percent (273.2 mt); Longline category—8.1 percent (112.3 mt); Trap category—0.1 percent (1.4 mt); and Reserve—2.5 percent (34.7 mt).

The current ICCAT BFT quota recommendation allows, and U.S. regulations require, the addition or subtraction, as appropriate, of any underharvest or overharvest in a fishing year to the appropriate quota category for the following year, provided that such carryover does not result in overharvest of the total annual quota and is consistent with all applicable ICCAT recommendations, including restrictions on landings of school BFT. Therefore, NMFS proposes to adjust the 2000 fishing year quota specifications for the BFT fishery to account for underharvest and overharvest in the 1999 fishing year.

The General, Harpoon, and Purse Seine category fisheries for BFT have been closed for the 1999 fishing year, but landings figures are still preliminary and may be updated before the 2000 specifications are finalized. For the 1999 fishing year, NMFS has preliminarily determined that General category landings exceeded the adjusted General category quota by 50.9 mt; Harpoon category landings exceeded the adjusted Harpoon category quota by 4.9 mt; and Purse Seine category landings were 13.8 mt less than the adjusted Purse Seine category quota. Based on the estimated amount of Reserve that NMFS is maintaining for the landing of BFT taken during ongoing scientific research projects, NMFS estimates that 44.7 mt of Reserve remains unharvested from the 1999 fishing year.

Given estimated catch rates and available quota, the Angling and Longline category fisheries will remain open through May 31, 2000. As NMFS anticipates publication of final BFT quota specifications for the 2000 fishing year prior to the availability of final 1999 landings figures for these two categories, best estimates will be used to determine carryover amounts, if any. To date, the Angling category has the following underharvests for the 1999 fishing year: School BFT—45.8 mt; large school/small medium BFT—145.0 mt; and large medium/giant BFT—1.6 mt. In addition, 17.8 mt remains in the school reserve. To date, 48.8 mt remain in the Longline category. Should adjustments to the final 2000 BFT quota specifications be required based on the final 1999 BFT landings figures, NMFS will publish a Federal Register notice updating the 2000 fishing year quota specifications.

NMFS proposes to allocate the remaining 1999 Reserve to the Harpoon and General categories to account for the overharvests in those categories. Of the estimated 44.7 mt carryover from the Reserve, NMFS would allocate 4.9 mt to the Harpoon category and 39.8 mt to the General category. The balance of the 1999 General category overharvest would be deducted from the 2000 General category allocation determined by the percentage share set in the HMS FMP.

In accordance with the regulations regarding annual adjustments at § 635.27(a)(9)(ii), NMFS proposes specifications for the 2000 fishing year that include carryover adjustments. The proposed quotas are: General category—642.2 mt; Harpoon category—54.1 mt; Purse Seine category—271.8 mt; Angling category—483.4 mt; Longline category—161.1 mt; and Trap category—2.4 mt. Additionally, 34.7 mt would be reserved for inseason allocations or to cover potential overharvest in any category. These initial specifications may be adjusted during the 2000 fishing year, when final Angling category and Longline category landings for the 1999 fishing year are determined. If necessary, updates to the 2000 fishing year specifications for the Angling and Longline categories, including size class and geographic subquota specifications, will be made. As required, adjustments to the amount held in the Reserve will also be made.

Based on the proposed specifications, the Angling category quota of 483.4 mt would be divided as follows: School BFT—136.3 mt, with 72.9 mt to the northern area (north of 38° 47′ N. latitude), 63.4 mt to the southern area (south of 38° 47' N. latitude), and an additional 38.3 mt held in reserve; large school/small medium BFT—300.9 mt, with 163.9 mt to the northern area and 137.0 mt to the southern area; and large medium/giant BFT—7.9, with 3.4 mt to the northern area and 4.5 mt to the southern area. The Longline category quota of 161.1 mt would be subdivided as follows: 30.8 mt to longline vessels landing BFT north of 34° N. latitude and 130.3 mt to longline vessels landing BFT south of 34° N. latitude.

General Category Effort Controls

For the last several years, NMFS has implemented General category time-period subquotas to increase the likelihood that fishing would continue throughout the summer and fall. The subquotas are consistent with the objectives of the HMS FMP and are designed to address concerns regarding allocation of fishing opportunities, to assist with distribution and achievement of optimum yield, to allow for a late season fishery, and to improve market conditions and scientific monitoring.

The HMS FMP divides the annual General category quota into three time-period subquotas as follows: 60 percent for June-August, 30 percent for September, and 10 percent for October-December. Given the overharvest of the 1999 fishing year General category quota, these percentages would be applied to the adjusted coastwide quota for the General category of 632.2 mt, with the remaining 10.0 mt being reserved for the New York Bight fishery. Therefore, coastwide, 379.3 mt would be available in the period beginning June 1 and ending August 31; 189.7 mt would be available in the period beginning September 1 and ending September 30; and 63.2 mt would be available in the period beginning October 1.

For the last several years, NMFS has also implemented RFDs in the General category. In 1997, NMFS amended the Atlantic tunas regulations to prohibit persons aboard General category vessels from fishing for (including tag-and-release fishing), retaining, possessing, or landing all sizes of BFT on designated RFDs. The intent of RFDs is to prolong fishing activity within each General category subperiod to increase fishing opportunities and to improve market conditions.

For the 2000 fishing year, NMFS proposes a schedule of RFDs that is similar to that implemented for the 1999 fishing year, adjusted as necessary to coordinate with Japanese market holidays, but that also includes RFDs for the month of October. NMFS has received comment from General category fishermen that NMFS should implement RFDs during October to help lengthen this late season fishery. NMFS proposes RFDs for October intended to balance the interests of various General category fishery participants, and specifically requests comments on these proposed October RFDs.

Persons aboard vessels permitted in the General category would be prohibited from fishing, including tag-and-release, for BFT of all sizes on the following days: July 12, 16, 17, 19, 23, 24, 26, 30, and 31; August 2, 6, 7, 9, 11, 12, 13, 14, 16, 20, 21, 23, 27, 28, and 30; September 3, 4, 6, 10, 11, 13, 17, 18, 20, 24, 25, and 27; and October 1, 4, 6, 7, 10, 11, 14, 15, 18, 19, 22, 23, 26, 27, 30, and 31. These proposed RFDs would improve distribution of fishing opportunities without increasing BFT mortality and are consistent with the objectives of the HMS FMP.

Changes to Regulatory Text

In consolidating the HMS regulations into one CFR part (64 FR 29090, May 28, 1999), NMFS inadvertently stated certain provisions incorrectly, and included regulatory text that, in some instances, was not consistent with the HMS FMP or the regulatory text as it existed prior to consolidation. Therefore, several changes to the regulatory text are proposed to clarify the regulations and to achieve consistency with the FMP objectives. These changes include specification of fishing seasons, quota adjustments, effort controls, and authorized gear.

General Category Season

Prior to implementation of the HMS FMP in 1999, the Atlantic tunas fishing year coincided with the calendar year, with the General category BFT fishing season ending December 31. The General category quota was split into three time-period subquotas: June through August, the month of September, and October through December. These time-period subquotas were selected as the preferred alternative and final action in the HMS FMP. The FMP established the Atlantic tunas fishing year as June 1 through May 31 of the following year. As specified in the HMS FMP, the change to the new fishing year was not intended to authorize new fishing seasons or to change fishing patterns, but was necessary to accommodate notice and comment rulemaking after management recommendations of ICCAT are received, usually in November. However, the consolidated regulations implementing the HMS FMP erroneously indicated that the third time-period subquota is October 1 through May 31 of the following calendar year, rather than ending December 31 of the same calendar year, as previously specified.

NMFS has stated its intent clearly in the HMS FMP and several other NMFS documents, including the 1999 final BFT quota and effort control specifications and the Atlantic tunas regulations brochure, which indicate an end date of December 31 for the General category season. Specifying May 31 as the end of the third time-period subquota in the consolidated HMS regulations was not intended to establish a new fishing season. NMFS, therefore, proposes to amend the subject regulatory text to indicate December 31 as the end date for the General category BFT fishing season.

Purse Seine Category Season

The HMS regulations state that, from August 15 through December 31, vessels issued Purse Seine category allocations may fish for BFT. The regulations also state that upon reaching its individual allocation of BFT, a Purse Seine category vessel may not participate in a directed fishery for Atlantic tunas or in any fishery in which BFT might be caught for the remainder of the fishing year. This regulation is necessary because any incidental catch of BFT during fishing operations for other species (e.g., yellowfin or skipjack tunas or herring) must be deducted from the vessel's BFT allocation. In some years, certain purse seine vessels have conducted a yellowfin/skipjack fishery in late spring/early summer prior to commencement of the directed BFT fishery on August 15.

When the HMS regulations were consolidated under 50 CFR part 635, it was inadvertently stated in § 635.27(a)(4)(ii) (Purse Seine category quota section) that the BFT allocation “becomes available August 15.” NMFS intended for the August 15 date to refer specifically to the opening of the directed fishery for BFT, not to preclude purse seine fisheries from targeting other species from the beginning of the tunas fishing year (June 1) to August 15 due to lack of a BFT allocation from which to deduct incidental catch. This proposed amendment corrects the subject regulatory text to indicate that the purse seine vessel allocation of BFT is available starting June 1, and that any BFT caught incidental to fishing operations for other species will be deducted from the vessel's BFT allocation for that fishing year. This proposed amendment also clarifies the regulatory text to indicate that it is the directed purse seine fishery for BFT that commences on August 15 each year.

Purse Seine Quota Carryover

Implementing regulations at § 635.27(a)(4)(iii) indicate that, on or about May 1, NMFS will make equal allocations of the available size classes of BFT among Atlantic tunas Purse Seine category permit holders so requesting (limited to five authorized vessels). In situations where a fishing year quota is exceeded or is not entirely taken, regulations at § 635.27(a)(9) state that NMFS shall subtract the overharvest from, or add the underharvest to, the appropriate quota category for the following fishing year. Therefore, in accordance with the regulations, any Purse Seine category underharvest or overharvest would be divided equally among the authorized vessels regardless of the individual vessels' contribution to the carryover amount.

NMFS has received comments from Purse Seine category participants that, because the category is managed via individual vessel quotas (IVQs), any vessel's underharvest or overharvest during a fishing year should be added to or deducted from that vessel's IVQ for the following fishing year, rather than the Purse Seine category quota as a whole. Also, commenters noted that a provision for individual vessel carryover would enhance the intent of the IVQ system by providing individual vessel owners the responsibility and incentive to remain within their allocated quotas, since overharvests would be deducted from that particular vessel's IVQ for the following year, and, conversely, any underharvest would be added.

NMFS, therefore, proposes to amend the regulations regarding annual adjustment of quotas and subquotas to authorize NMFS to add the underharvest to, or subtract the overharvest from, individual Purse Seine category vessels' allocations for the following fishing year if NMFS determines that a vessel's individual quota has been exceeded or has not been reached.

Restricted Fishing Days

For several years, NMFS has implemented RFDs in the BFT General category fishery, along with other General category effort controls. RFDs are consistent with the objectives of the HMS FMP and are designed to address concerns regarding allocation of fishing opportunities, to assist with distribution and achievement of optimum yield, to ensure a late season fishery, to improve market conditions, and to improve data collection for scientific monitoring purposes.

Prior to publication of the consolidated regulations implementing the HMS FMP, the Atlantic tunas regulations (50 CFR part 285) indicated that, on RFDs, persons aboard a vessel permitted in the General category could not fish for, possess, or retain BFT. In the final consolidated regulations, the term “fish for” was inadvertently omitted. Prohibiting persons on board General category vessels from fishing for BFT on an RFD (including fishing under a tag and release program) is important to facilitate enforcement of the RFD. This proposed amendment would correct the subject regulatory text to indicate that persons on board a vessel permitted in the General category cannot fish for BFT on an RFD.

In addition, this amendment would remove language included in the final consolidated regulations indicating that RFDs apply only when the General category fishery is open. If a time-period subquota is filled and if the fishery is closed before the end of the time period (e.g., by September 15 for the September time period), an automatic waiver of the remaining RFDs for the time period allows for tag-and-release fishing by persons aboard General category vessels until the beginning of the next time period fishery. Removing the provision for automatic waiver of RFDs would allow NMFS the discretion to implement RFDs during a closure of a General category time period on days immediately prior to the beginning of the following time-period subquota (e.g., September 29 and 30).

In issuing a closure notification for any General category subperiod, NMFS would indicate the specific RFDs that would be waived and/or added prior to reopening the fishery. Because fishing for BFT, including tag-and-release fishing, is prohibited on RFDs, retaining or adding RFDs immediately prior to reopening a new sub-period would facilitate enforcement of the closure and reduce the potential for accumulated catch to be landed on the day of the reopening. This proposed amendment is consistent with the intent of RFDs, as well as other General category effort controls and the HMS FMP.

Authorized Gear

Finally, NMFS proposes to correct text that prohibits the use of bandit gear in the north Atlantic swordfish fishery. In the table appearing at 50 CFR 600.725(v), bandit gear is authorized in the swordfish handgear fishery. Likewise, 50 CFR 635.21(d)(4) authorizes the use of bandit gear to fish for north Atlantic swordfish from vessels issued limited access permits. When the final consolidated HMS regulations were published, the prohibition at 50 CFR 635.71(e)(8) inadvertently omitted bandit gear from the list of authorized gears.

Public Hearings and Special Accommodations

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; and attendees should not interrupt one another). The NMFS representative will attempt to structure the hearing so that all 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 not, they will be asked to leave the hearing.

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 Sarah McLaughlin (see FOR FURTHER INFORMATION CONTACT) at least 7 days prior to the hearing.

Classification

These proposed specifications and regulatory amendment are 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 specifications and the regulations contained in the proposed regulatory amendment are consistent with the FMP, the Magnuson-Stevens Act, and the 1998 ICCAT recommendation (ICCAT Rebuilding Program).

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 regulatory amendment, if implemented, would not have a significant economic impact on a substantial number of small entities as follows:

The proposed specifications would set Atlantic BFT tuna quota allocations and General category effort controls for the 2000 fishing year; these proposed specifications are similar to those set for the 1999 fishing year and are in accordance with the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (Highly Migratory Species (HMS) FMP). The proposed regulatory amendments would allow Purse Seine vessel owners to carry over unharvested BFT quota between fishing years on a per vessel basis, change the date on which BFT allocations become available to Atlantic tunas Purse Seine category vessel owners, change the end date of the BFT General category season, and modify language regarding restricted fishing days in the General category BFT fishery and authorized gear in the Atlantic swordfish fishery. Because the overall U.S. BFT landings quota and fishing patterns would remain the same, there is no anticipated change in revenues that would accrue to small businesses in the fishery overall. Specifically regarding the Purse Seine category fishery, the ability to carry over unharvested BFT quota between fishing years on a per vessel basis could result in additional revenues accruing to small businesses associated with the purse seine fishery without directly affecting any other fishing category. The other proposed regulatory amendments would serve to correct or clarify the regulatory text and would not alter current fishing practices in any significant way.

Because of this certification, an Initial Regulatory Flexibility Analysis was not prepared.

This proposed regulatory amendment has been determined to be not significant for purposes of E.O. 12866.

The proposed specifications would set 2000 fishing year BFT fishing category quotas and General category effort controls. The specifications are similar to those set for the 1999 fishing year as established by the HMS FMP. The proposed regulatory amendments would not significantly change the operations of any HMS fishery. Taken together, the quota and effort control specifications and the proposed regulatory amendments are not expected to increase endangered species or marine mammal interaction rates. NMFS reinitiated formal consultation for all Atlantic HMS commercial fisheries on November 19, 1999, under section 7 of the Endangered Species Act. Pending the issuance of a Biological Opinion and the determination of reasonable and prudent measures to avoid jeopardizing the continued existence of any protected species, these proposed measures, if implemented, 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 to reduce adverse impacts on protected resources.

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

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 § 635.23, paragraphs (a)(2) and (a)(4) are revised to read as follows: