[Federal Register Volume 82, Number 205 (Wednesday, October 25, 2017)]
[Proposed Rules]
[Pages 49303-49310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23131]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 170823804-7932-01]
RIN 0648-BH17


Atlantic Highly Migratory Species; Individual Bluefin Quota 
Program; Accountability for Bluefin Tuna Catch

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

ACTION: Proposed rule; request for comments and notice of public 
hearing.

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SUMMARY: NMFS proposes to modify the Atlantic highly migratory species 
(HMS) regulations to require vessels in the pelagic longline fishery to 
account for bycatch of bluefin tuna (bluefin) using Individual Bluefin 
Quota (IBQ) on a quarterly basis instead of before commencing any 
fishing trip with less than the minimum required IBQ balance or with 
quota debt. Specifically, vessels would be allowed to fish with an IBQ 
balance below the minimum amount currently required to depart on a 
fishing trip with pelagic longline gear, or with quota debt incurred by 
exceeding their IBQ balance, during a given calendar quarter; however, 
vessels would be required to reconcile quota debt and satisfy the 
minimum IBQ requirement prior to departing on a pelagic longline 
fishing trip in the subsequent calendar quarter. The action will 
further optimize fishing opportunity in the directed pelagic longline 
fishery for target species such as tuna and swordfish and improve the 
functionality of the IBQ Program and its accounting provisions, 
consistent with the objectives of Amendment 7 to the 2006 Consolidated 
HMS Fishery Management Plan (FMP).

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DATES: Written comments must be received on or before November 24, 
2017. NMFS will host an operator-assisted public hearing conference 
call and webinar on October 31, 2017, from 2:00 to 4:00 p.m. EDT, 
providing an opportunity for individuals from all geographic areas to 
participate. See SUPPLEMENTARY INFORMATION for further details.

ADDRESSES: You may submit comments on this document, identified by 
``NOAA-NMFS-2017-0119,'' by either of the following methods:
    <bullet> Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0119, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
    <bullet> Mail: Submit written comments to Thomas Warren, Highly 
Migratory Species (HMS) Management Division, Office of Sustainable 
Fisheries (F/SF1), NMFS, 55 Great Republic Drive, Gloucester, MA 01930.
    Instructions: 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 generally will 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).
    The public hearing conference call information is phone number 
(888) 391-7048; participant passcode 8277768. Participants are strongly 
encouraged to log/dial in 15 minutes prior to the meeting. NMFS will 
show a brief presentation via webinar followed by public comment. To 
join the webinar, go to: https://noaaevents3.webex.com/noaaevents3/onstage/g.php?MTID=e54f7226a1f5760de0610e7545c3e472e; meeting number: 
990 093 099; password: NOAA. Participants who have not used WebEx 
before will be prompted to download and run a plug-in program that will 
enable them to view the webinar.
    Supporting documents, including the Regulatory Impact Review and 
Initial Regulatory Flexibility Analysis, may be downloaded from the HMS 
Web site at www.nmfs.noaa.gov/sfa/hms/. These documents also are 
available by contacting Thomas Warren at the mailing address specified 
above.

FOR FURTHER INFORMATION CONTACT: Thomas Warren, 978-281-9260; or Carrie 
Soltanoff, 301-427-8503.

SUPPLEMENTARY INFORMATION: Regulations implemented under the authority 
of the Atlantic Tunas Convention Act (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.) governing the harvest of BFT by 
persons and vessels subject to U.S. jurisdiction are found at 50 CFR 
part 635. Section 635.27 subdivides the U.S. BFT quota recommended by 
the International Commission for the Conservation of Atlantic Tunas 
(ICCAT) among the various domestic fishing categories, per the 
allocations established in the 2006 Consolidated Atlantic Highly 
Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) 
(71 FR 58058, October 2, 2006), as amended by Amendment 7 to the 2006 
Consolidated HMS FMP (Amendment 7) (79 FR 71510, December 2, 2014), and 
in accordance with implementing regulations. The current baseline U.S. 
BFT quota and subquotas were established and analyzed in the BFT quota 
final rule (80 FR 52198, August 28, 2015). NMFS is required under ATCA 
and the Magnuson-Stevens Act to provide U.S. fishing vessels with a 
reasonable opportunity to harvest the ICCAT-recommended quota.

Background

    Bluefin fishing is managed domestically through a quota system (on 
a calendar-year basis), in conjunction with other management measures 
including permitting, reporting, gear restrictions, minimum fish sizes, 
closed areas, trip limits, and catch shares. NMFS implements the ICCAT 
U.S. quota recommendation, and divides the quota among U.S. fishing 
categories (i.e., the General, Angling, Harpoon, Purse Seine, Longline, 
and Trap categories) and the Reserve category on an annual basis. 
Vessels fishing with pelagic longline gear, which catch bluefin 
incidentally while fishing for target species (primarily swordfish and 
yellowfin tuna), hold limited access Atlantic Tunas Longline permits 
and utilize Longline category quota. Through Amendment 7, NMFS 
established the IBQ Program, a catch share program that identified 136 
permit holders as IBQ share recipients based on specified criteria, 
including historical target species landings and the bluefin catch-to-
target species ratios from 2006 through 2012. The objectives of the IBQ 
Program include limiting the amount of BFT landings and dead discards 
in the pelagic longline fishery; providing strong incentives for the 
vessel owner and operator to avoid bluefin interactions and thus reduce 
bluefin dead discards; and balancing the objective of limiting bluefin 
landings and dead discards with the objective of optimizing fishing 
opportunities and maintaining profitability.
    IBQ share recipients receive an annual allocation of the Longline 
category quota based on the percentage share they received through 
Amendment 7 but only if their permit is associated with a vessel in the 
subject year (i.e., only ``qualified IBQ share recipients'' receive 
annual allocations). Permit holders that did not receive IBQ shares 
through Amendment 7 may still fish, but they are required to lease IBQ. 
Leasing occurs through the IBQ electronic system. Through rulemaking, 
NMFS modified the regulations to optimize quota transferred inseason by 
authorizing distribution of quota only to permitted Atlantic Tunas 
Longline vessels with recent fishing activity (81 FR 95903; December 
29, 2016). Every vessel must have a minimum amount of quota allocation 
to fish (described below), whether obtained through their shares or by 
leasing, and every vessel must individually account for its bluefin 
landings and dead discards through the IBQ electronic system.
    Delayed effective dates for some of the regulations implemented 
through Amendment 7 assisted in the transition to measures adopted in 
Amendment 7, which substantially increased individual vessel 
accountability for bluefin bycatch (landings and dead discards) in the 
Longline fishery. During 2015, the first year of implementation of the 
IBQ Program, a pelagic longline vessel that had insufficient IBQ to 
account for its landings and dead discards (i.e., went into ``quota 
debt'') was allowed to continue to fish, however any additional 
landings and dead discards continued to accrue, and the cumulative 
quota debt needed to be accounted for no later than December 31, 2015. 
A vessel that did not resolve its quota debt by December 31, would 
retain the quota debt into 2016, and its quota debt would be deducted 
from its annual IBQ allocation (allocated January 1 to shareholders 
associated with permitted vessels). In contrast, as of January 1, 2016, 
a vessel fishing with pelagic longline gear onboard must have a minimum 
IBQ allocation to embark on a trip. A minimum allocation required to 
fish is 0.25 mt (551 lb) whole weight (ww) for a trip in the Gulf of 
Mexico and

[[Page 49305]]

0.125 mt ww (276 lb ww) for a trip in the Atlantic. Pelagic longline 
vessels may lease IBQ allocation from other such vessels or from Purse 
Seine fishery participants in the IBQ Program to obtain sufficient 
allocation for their trips or to account for quota debt.
    The IBQ Program has been operating since its implementation (both 
in 2015 under annual accountability and in 2016 and 2017 under trip-
level accountability). Pelagic longline vessel owners have been 
accounting for bluefin catch using the IBQ Program and leasing quota 
among themselves (and from Purse Seine fishery participants) as needed 
in order to fully account for bluefin catch using IBQ. Notably, 
estimates of 2015 and 2016 dead discards of bluefin (17.1 mt and 22.6 
mt, respectively) by the pelagic longline fishery indicate substantial 
reductions of greater than 50 percent compared to the pre-2015 levels 
(159.6 mt on average for 2006 through 2014). However, since 
implementation, pelagic longline fishery participants have consistently 
requested additional flexibility due to the constraints and costs 
associated with the accounting and leasing requirements of the IBQ 
Program, which affects profitability of target species catch (primarily 
swordfish and yellowfin tuna) and causes uncertainty in a vessel 
owner's short-term and long-term plans. Vessel owners stated that their 
ability to account for bluefin using allocated IBQ or IBQ leased at an 
affordable price is key to the success of the IBQ Program. A vessel 
that has below the minimum amount of IBQ to fish or is in quota debt is 
uncertain about their ability to depart on a subsequent fishing trip. 
Specifically, vessels have been concerned that the IBQ Program, 
including the trip-level accountability requirements, could negatively 
impact vessel operations and finances given the timing restrictions, 
lease pricing of IBQ, the distribution of quota among permit holders as 
implemented by Amendment 7, and the behavior of some permit holders 
who, for example, do not appear to be actively fishing nor engaged in 
any leasing activities. They also say that the expense of leasing IBQ 
allocation when needed can impact other operational costs such as crew 
pay. If availability of IBQ is limited, or costs are prohibitive, the 
operational impacts increase. IBQ Program data generally reflect that, 
for leasing transactions that occurred, sales revenue received per 
pound approximated the cost per pound of leasing IBQ. However, IBQ 
Program participants (which include any permit holder or vessel that 
leases quota to facilitate pelagic longline operations) and potential 
lessees have communicated that there were instances where the cost at 
which lessors were willing to lease their IBQ was prohibitive and 
leasing did not occur and this information would not be reflected in 
NMFS data. Furthermore, expanded opportunities to fish with pelagic 
longline gear within the available swordfish quota are contingent on 
access to additional quota to account for bluefin bycatch and discards. 
Longline fishery participants requested that NMFS take further steps to 
provide more flexibility regarding timing for vessel owners to lease 
IBQ needed to cover bluefin catch.
    Therefore, pelagic longline fishery participants consistently 
requested additional flexibility in the regulations due to the dynamics 
and costs associated with leasing IBQ described above, which can affect 
profitability of target species catch, increase uncertainty, and 
negatively affect the ability to plan their business. Such effects may 
be compounded by the impacts of other constraints associated with 
Amendment 7, including additional gear restricted areas and VMS and 
electronic monitoring requirements, as well as non-Amendment 7 related 
constraints (e.g., market demands etc.).
    In light of these challenges facing the fishery, as well as the 
Amendment 7 objectives which include ``minimizing constraints on 
fishing for target species,'' as well as ``optimizing fishing 
opportunities and maintaining profitability,'' NMFS has utilized its 
authority to transfer quota inseason to the Longline category (80 FR 
45098; July 29, 2015; 81 FR 19; January 4, 2106; 82 FR 12296; March 2, 
2017) to foster conditions in which vessel owners become more willing 
to lease IBQ, optimize fishing opportunity, and reduce uncertainty in 
the fishery.
    During its May 2017 Advisory Panel Meeting, pelagic longline vessel 
owners acknowledged the effectiveness of NMFS' actions in support of 
the IBQ Program objectives, but reiterated the need for additional 
flexibility and offered suggestions for high priority regulatory 
changes to achieve such flexibility.
    NMFS received requests, among other suggestions about the IBQ 
Program and management of the pelagic longline fishery, to allow more 
time for vessel owners to resolve quota debt and achieve a minimum 
balance of IBQ, rather than require vessels to have a minimum balance 
of IBQ as a prerequisite of every longline trip. In light of past 
fishery dynamics under the IBQ Program and public input regarding the 
need for additional flexibility, this rule proposes to modify the 
accountability provisions of the IBQ Program as a reasonable means to 
provide some additional flexibility for individual vessel owners, while 
achieving a balance among the IBQ Program objectives.
    The pelagic longline fishery is a diverse fishing fleet, with a 
variety of vessel sizes and types of operations distributed from the 
waters off Nova Scotia to the Gulf of Mexico, Caribbean, and South 
America. Timing of fishing trips are typically based on the 
availability of target species, weather, moon phase, markets, crew and 
bait availability, and other factors. Quarterly accountability may 
achieve a better balance between minimizing constraints on fishing for 
target species and ensuring accountability for incidental bluefin 
catch, due to the fact that it allows a vessel owner to determine the 
timing of lease transactions or level of quota debt they are 
comfortable maintaining over a longer period. Alleviation of the timing 
constraint associated with trip-level accountability would provide 
additional flexibility. A vessel owner may need flexibility to pay 
costs associated with fishing (fuel, bait, ice, labor, repairs, etc.), 
including the cost of leasing IBQ, on a timeline unique to their 
operation and finances. The opportunity to fish with a low IBQ balance 
or with quota debt may enable a vessel owner to continue to obtain 
revenue during the time period when they are looking for quota to lease 
and accommodate different types of fishing operations and financial 
obligations. Quarterly accountability would require vessel owners to 
resolve quota debt and obtain the minimum amount of IBQ prior to 
fishing for the first time in a subsequent calendar quarter.

Request for Comments

    NMFS solicits comments on this proposed rule through November 24, 
2017. See instructions in ADDRESSES section.

Public Hearing Conference Call

    NMFS will hold a public hearing conference call and webinar on 
October 31, 2017, from 2 p.m. to 4 p.m. EDT, to allow for an additional 
opportunity for interested members of the public from all geographic 
areas to submit verbal comments on the proposed rule.
    The public is reminded that NMFS expects participants at public 
hearings and on conference calls to conduct themselves appropriately. 
At the beginning of the conference call, a representative of NMFS will 
explain the ground rules (all comments are to be directed to the agency 
on the proposed

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action; 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 meeting 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 matter. 
If attendees do not respect the ground rules, they will be asked to 
leave the conference call.

Classification

    The NMFS Assistant Administrator has determined that the proposed 
rule is consistent with the 2006 Consolidated HMS FMP and its 
amendments, the Magnuson-Stevens Act, ATCA, and other applicable law, 
subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This action has been preliminarily determined to be categorically 
excluded from the requirement to prepare an environmental assessment in 
accordance with NOAA Administrative Order (NAO) 216-6A, subject to 
further consideration after public comment. This action may 
appropriately be categorically excluded from the requirement to prepare 
either an environmental assessment or environmental impact statement in 
accordance with CE A1 of the Companion Manual for NAO 216-6A for an 
action that is a technical correction or a change to a fishery 
management action or regulation, which does not result in a substantial 
change in any of the following: Fishing location, timing, effort, 
authorized gear types, access to fishery resources or harvest levels. 
By somewhat altering the timing of the accounting for bluefin tuna by 
individual pelagic longline vessels, the changes in the proposed action 
could also be expected to alter some fishing timing, and this is the 
intent of the additional flexibility offered by the changes proposed in 
the action. We expect this to result in some minor alterations in 
fishing trip timing by individual vessel owners. Timing would not, 
however, be altered in a way that would constitute a substantial 
change. In practice, this action would give some individual vessels 
flexibility to alter the timing of some of their fishing trips within a 
three-month period. Given the size of the fleet and the number of 
fishing trips taken, such minor variations in individual fishing trips 
would not result in substantial changes to fishing timing overall. 
Moreover, the level of fishing remains capped by the U.S. bluefin tuna 
quota; the timing of the fishing is substantively managed by the 
various subquota categories, inseason actions (e.g., regarding 
retention limits) and seasons. Any minor modifications in individual 
vessel practice will not increase or decrease the quota nor the fishing 
mortality associated with that quota or have any other environmental 
effects. The annual U.S. bluefin tuna quota and subquota allocations to 
the Longline category would not be affected by this action. A final 
determination will be made prior to publication of the final rule for 
this action.
    NMFS has prepared a Regulatory Impact Review (RIR) and an Initial 
Regulatory Flexibility Analysis (IRFA), which present and analyze 
anticipated social and economic impacts of the alternatives contained 
in this proposed rule. The list of alternatives and their analyses are 
provided in the draft RIR and are not repeated here in their entirety. 
A copy of the draft RIR prepared for this proposed rule is available 
from NMFS (see ADDRESSES).
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act (RFA, 5 U.S.C. 603 et seq.), and is included below. The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the action, why it is 
being considered, and the legal basis for this action are contained in 
the SUMMARY section of the preamble.
    The goal of the RFA is to analyze the economic burden of federal 
regulations on small entities. To that end, the RFA directs federal 
agencies to assess whether the proposed regulation is likely to result 
in significant economic impacts to a substantial number of small 
entities, and identify and analyze any significant alternatives to the 
proposed rule that accomplish the objectives of applicable statutes and 
minimizes any significant effects on small entities.

Description of the Reasons Why Action Is Being Considered

    In compliance with section 603(b)(1) of the RFA, the purpose of 
this proposed rulemaking is, consistent with the 2006 Consolidated HMS 
FMP objectives, the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act), and other applicable law, to 
require vessels in the pelagic longline fishery to account for bycatch 
of bluefin tuna using IBQ on a quarterly basis instead of before 
commencing any fishing trip while in quota debt or with less than the 
minimum required IBQ balance.
    Current regulations require permitted Atlantic Tunas Longline 
vessels to possess a minimum amount of IBQ to depart on a fishing trip 
with pelagic longline gear and account for bluefin tuna catch (fish 
retained or discarded dead) using IBQ (0.25 mt for a trip in the Gulf 
of Mexico and 0.125 mt for a trip in the Atlantic). At the end of a 
trip on which bluefin tuna are caught, a vessel's IBQ balance is 
reduced by the amount caught. If the trip catch exceeds the vessel's 
available quota, the vessel will incur quota debt (i.e., exceeding its 
available IBQ balance). In this case, the regulations currently require 
the vessel to obtain additional IBQ through leasing to resolve that 
quota debt and to acquire the minimum IBQ amount before departing on a 
subsequent trip using pelagic longline gear. Thus, a pelagic longline 
vessel owner who takes consecutive trips must account for bluefin tuna 
catch in almost real time, effectively creating a system of ``trip-
level accountability'' for those vessels.
    This action would modify these rules to require vessels to resolve 
quota debt on a quarterly basis (i.e., they must balance the debt and 
obtain the minimum amount required to depart on a fishing trip before 
going on a trip in the next quarter). Vessels would be allowed to fish 
with a low IBQ balance or with quota debt during a calendar quarter. 
Vessels would still be required to report bluefin tuna catch at the end 
of each trip (and account for it with IBQ), but this regulatory change 
would provide the flexibility to fish even if the vessel has less than 
the minimum amount of IBQ, including quota debt, until the first 
fishing trip in each calendar quarter. For example, under the new 
measure, if a vessel has a low balance or quota debt in January 2018, 
the vessel would be allowed to fish without first resolving that low 
balance or quota debt through March 31, 2018. In order to depart on a 
pelagic longline fishing trip in the following quarter, starting April 
1, 2018, that vessel would need to lease additional IBQ resolve the 
quota debt and acquire the minimum amount of IBQ required to fish.
    The rule would provide flexibility for two important operational 
business decisions made by vessel owners: decisions regarding quota 
balance and quota debt (subject to full accounting quarterly) and 
decisions regarding the timing and price at which they lease additional 
quota. Importantly, this regulatory change would maintain vessel 
accountability for bluefin tuna catch and the associated incentives for 
vessel operators to minimize catch of bluefin tuna. By changing the 
timing of the accountability, however, the

[[Page 49307]]

proposed rule would provide some additional flexibility in vessel 
operations and thus provide vessel owners more of a reasonable 
opportunity to catch available quota for target species (i.e., 
swordfish and yellowfin tuna).

Statement of the Objectives of, and Legal Basis for, the Proposed Rule

    In compliance with section 603(b)(2) of the RFA, the objective of 
this proposed rulemaking is to provide additional flexibility regarding 
the timing of accounting for bluefin tuna in the IBQ Program in a 
manner that maintains accountability for bluefin tuna and a strong 
incentive for pelagic longline vessels to avoid interactions with 
bluefin tuna, while minimizing constraints on fishing for target 
species and, to the greatest extent possible, the socioeconomic impacts 
on affected fisheries.
    The legal basis for this proposed rule stems from the dual 
authority of the Magnuson-Stevens Act and the Atlantic Tunas Convention 
Act (ATCA). Under the Magnuson-Stevens Act, NMFS must, consistent with 
ten National Standards, manage fisheries to maintain optimum yield (OY) 
by rebuilding overfished fisheries and preventing overfishing. Under 
ATCA, NMFS is authorized to promulgate regulations as may be necessary 
and appropriate to carry out binding recommendations of ICCAT. 
Additionally, any management measures must be consistent with other 
domestic laws including the National Environmental Policy Act (NEPA), 
the Endangered Species Act (ESA), the Marine Mammal Protection Act 
(MMPA), and the Coastal Zone Management Act (CZMA).

Description and Estimate of the Number of Small Entities To Which the 
Proposed Rule Would Apply

    Section 603(b)(3) of the RFA requires agencies to provide an 
estimate of the number of small entities to which the rule would apply. 
The Small Business Administration (SBA) has established size criteria 
for all major industry sectors in the United States, including fish 
harvesters. Provision is made under SBA's regulations for an agency to 
develop its own industry-specific size standards after consultation 
with the SBA Office of Advocacy and an opportunity for public comment 
(see 13 CFR 121.903(c)). Under this provision, NMFS may establish size 
standards that differ from those established by the SBA Office of Size 
Standards, but only for use by NMFS and only for the purpose of 
conducting an analysis of economic effects in fulfillment of the 
agency's obligations under the RFA. To utilize this provision, NMFS 
must publish such size standards in the Federal Register (FR), which 
NMFS did on December 29, 2015 (80 FR 81194, December 29, 2015).
    In this final rule effective on July 1, 2016, NMFS established a 
small business size standard of $11 million in annual gross receipts 
for all businesses in the commercial fishing industry (NAICS 11411) for 
RFA compliance purposes. NMFS considers all HMS Atlantic Tunas Longline 
permit holders (280 as of October 2016) to be small entities because 
these vessels have reported annual gross receipts of less than $11 
million for commercial fishing. The average annual gross revenue per 
active pelagic longline vessel was estimated to be $187,000 based on 
the 170 active vessels between 2006 and 2012 that produced an estimated 
$31.8 million in revenue annually. The maximum annual revenue for any 
pelagic longline vessel between 2006 and 2015 was $1.9 million, well 
below the NMFS small business size threshold of $11 million in gross 
receipts for commercial fishing. Therefore, NMFS considers all Atlantic 
Tunas Longline permit holders to be small entities.
    NMFS has determined that this proposed rule would apply to the 
small businesses associated with the 136 Atlantic Tunas Longline 
permits with IBQ shares and the additional permitted Atlantic Tunas 
Longline vessels that fish with quota leased through the IBQ Program. 
NMFS has determined that this action would not likely directly affect 
any small organizations or small government jurisdictions defined under 
the RFA.

Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities Which Would Be Subject to the 
Requirements of the Report or Record

    Section 603(b)(4) of the RFA requires agencies to describe any new 
reporting, record-keeping and other compliance requirements. This 
proposed rule does not contain any new collection of information, 
reporting, or record-keeping requirements but only modifies existing 
requirements.

Identification of All Relevant Federal Rules Which May Duplicate, 
Overlap, or Conflict With the Proposed Rule

    Under section 603(b)(5) of the RFA, agencies must identify, to the 
extent practicable, relevant Federal rules which duplicate, overlap, or 
conflict with the proposed action. Fishermen, dealers, and managers in 
these fisheries must comply with a number of international agreements, 
domestic laws, and other FMPs. These include, but are not limited to, 
the Magnuson-Stevens Act, ATCA, High Seas Fishing Compliance Act, MMPA, 
ESA, NEPA, Paperwork Reduction Act, and CZMA. This proposed action has 
been determined not to duplicate, overlap, or conflict with any of 
these statutes or Federal rules.

Description of Any Significant Alternatives to the Proposed Rule That 
Accomplish the Stated Objectives of the Applicable Statutes and That 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities

    One of the requirements of an IRFA is to describe any significant 
alternatives to the proposed rule which accomplish the stated 
objectives of applicable statutes and which minimize any significant 
economic impact of the proposed rule on small entities. The analysis 
shall discuss significant alternatives such as:
    1. Establishment of differing compliance or reporting requirements 
or timetables that take into account the resources available to small 
entities;
    2. Clarification, consolidation, or simplification of compliance 
and reporting requirements under the rule for such small entities;
    3. Use of performance rather than design standards; and
    4. Exemptions from coverage of the rule, or any part thereof, for 
small entities.

These categories of alternatives are described at 5 U.S.C. 603(c)(1)-
(4)). NMFS examined each of these categories of alternatives. Regarding 
the first and fourth categories, NMFS cannot establish differing 
compliance or reporting requirements for small entities or exempt small 
entities from coverage of the rule or parts of it because all of the 
businesses impacted by this rule are considered small entities and thus 
the requirements are already designed for small entities. NMFS examined 
alternatives that fall under the second category, which requires 
agencies to consider whether they can clarify, consolidate, or simplify 
compliance and reporting requirements under the proposed rule for small 
entities. The quarterly and annual accountability alternatives in the 
proposed rule would reduce the burden of complying with the existing 
trip level accountability requirement and thus would fall into this 
category of alternatives by simplifying compliance and reporting 
requirements for small entities. The IBQ Program was designed to adhere 
to performance standards, the third

[[Page 49308]]

category above; modifications to the regulations implementing the IBQ 
Program simply make adjustments to the administration of those 
underlying performance standards. Thus, NMFS has considered the 
significant alternatives to the proposed rule and focused on 
simplifying compliance and reporting requirements associated with IBQ 
accountability in order to minimize any significant economic impact of 
the proposed rule on small entities.
    NMFS analyzed several different alternatives in this proposed 
rulemaking, and the rationale that NMFS used to determine the 
alternative for achieving the desired objectives is described below.
    The first alternative is the ``no action'' (status quo) 
alternative. The second alternative, the preferred alternative, would 
adjust the Atlantic HMS regulations to require the pelagic longline 
fishery to account for bycatch of bluefin tuna using IBQ on a quarterly 
basis instead of before embarking on a trip after incurring quota debt. 
The third alternative would adjust the Atlantic HMS regulations to 
require the pelagic longline fishery to account for bycatch of bluefin 
tuna using IBQ on an annual basis instead of before embarking on a trip 
after incurring quota debt. The economic impacts of these three 
alternatives are detailed below. Under all three alternatives, a 
vessel's IBQ balance would be reduced to account for bluefin tuna 
discarded dead or retained immediately after the catch is reported in 
the IBQ system. The difference among the alternatives is the timing of 
when quota debt or a low balance of IBQ precludes fishing and must be 
resolved prior to departing on a subsequent trip using pelagic longline 
gear (trip level, quarterly, or annually).
    Under the ``no action'' alternative, NMFS would maintain the 
current regulations regarding accounting for bluefin tuna catch and 
prerequisites for departing on a fishing trip with pelagic longline 
gear on board. Current regulations require permitted Atlantic Tunas 
Longline vessel owners (or vessel operators, where applicable) to 
possess a minimum amount of IBQ to depart on a fishing trip with 
pelagic longline gear and account for bluefin tuna caught (retained or 
discarded dead) using IBQ at the end of the trip. Therefore, at the end 
of a trip on which bluefin tuna are caught, a vessel owner's balance of 
IBQ would be reduced, possibly below the minimum amount needed for a 
subsequent trip, or the vessel owner may incur quota debt by exceeding 
their IBQ balance. In either of these cases, the vessel owner must 
obtain additional IBQ through leasing in order to satisfy the minimum 
requirement (and resolve any quota debt they may have) prior to 
departing on another trip using pelagic longline gear. The net effect 
of these rules is that a pelagic longline vessel owner that takes 
multiple sequential trips must account for bluefin tuna in real-time, 
which NMFS refers to as ``trip-level accountability.''
    This approach was implemented by Amendment 7, but effectiveness was 
delayed until January 1, 2016, in contrast to most of the other 
Amendment 7 measures that were effective on January 1, 2015. During 
2016, there were 1,025 pelagic longline trips by 85 vessels, which 
deployed 6,885 sets and 5,217,547 hooks. During 2016, there were 81 IBQ 
lease transactions with a total of 141,183 lb IBQ leased and an average 
price of $ 2.52 per pound (weighted average). There were a total of 17 
vessels that incurred quota debt at some time during the year, with a 
total amount of 40,237 lb of debt incurred and resolved. Mean revenue 
per trip during 2016 based on logbook, dealer, and weigh out data was $ 
24,707.
    During 2016, pelagic longline vessel owners successfully accounted 
for bluefin tuna catch using the IBQ Program and leasing quota among 
themselves (and from Purse Seine fishery participants) as needed in 
order to fully account for bluefin tuna catch using IBQ. However, since 
implementation, pelagic longline fishery participants have consistently 
requested some additional flexibility due to the costs associated with 
leasing IBQ, which can affect profitability of target species catch, as 
well as the concern that vessel owners appear to be unwilling to lease 
IBQ at certain times, uncertainties regarding the availability of IBQ 
to lease, and the impacts of other constraints associated with 
Amendment 7, including additional gear restricted areas and VMS and 
electronic monitoring requirements. The ability of vessel owners to 
account for bluefin tuna using allocated quota or IBQ leased at an 
affordable price is key to the success of the IBQ Program. A trend that 
may in part reflect the uncertainties and constraints associated with 
trip-level accountability is the lower amount of fishing effort in 2016 
compared to 2015 (despite the active IBQ leasing market in 2016). For 
example, the number of trips, active vessels, longline sets and hooks 
fished were all lower in 2016 than they were in 2015. The No Action 
alternative would not, however, provide the timing flexibility benefits 
that could facilitate better operational and economic decisions and 
options for individual vessel owners who need to lease IBQ, and NMFS 
therefore does not prefer the no action alternative.
    Under the second alternative (preferred), NMFS would adjust the 
Atlantic HMS regulations to require the pelagic longline fishery to 
account for bycatch of bluefin tuna using IBQ on a quarterly basis 
instead of before commencing any fishing trip while in quota debt or 
with less than the minimum required IBQ balance. The preferred 
alternative would provide flexibility for two important operational 
business decisions made by vessel owners. First, decisions regarding 
quota balance and quota debt (subject to full accounting quarterly); 
and second, decisions regarding the timing and price at which they 
lease additional quota. It is likely that the vessels would take 
advantage of increased operational flexibility as a result of removal 
of the constraints associated with the trip-level accountability. 
Specifically, operational flexibility associated with the preferred 
alternative may enable vessels to fish at more optimal times and avoid 
delay in the timing of a trip due to a low IBQ balance and issues 
related to availability of quota to lease; lease IBQ at a lower price 
by providing the flexibility for a vessel owner to `shop around'; 
reduce uncertainty in the IBQ market such that vessels are willing to 
plan and undertake fishing trips they previously may not have; and 
improve their cash flow by allowing fishing while in quota debt (i.e., 
accrual of revenue with which to lease additional IBQ). In 2016, each 
additional trip earned vessels on average $24,707 in revenue.
    NMFS used the available data on the IBQ lease markets to estimate 
the potential reduction in transaction costs (mainly labor costs) 
associated with moving from trip-level accountability to quarterly 
accountability. There were 33 vessels that leased quota in 2016 and 
they were involved in 81 transactions. On average, that is almost 2.5 
transactions per vessel that entered the IBQ lease market. Under the 
quarterly accountability requirement of Alternative 2, these vessels 
might be able to reduce their number of lease transactions to one lease 
per quarter, which would reduce business costs and have economic and 
operational benefits. Based on data from 2016 and the first-half of 
2017, quarterly accountability could lead to 51 fewer lease 
transactions if vessel owners reduced their number of lease transaction 
to one per quarter under this alternative. Each lease transaction costs 
vessel owners additional labor time to search for available IBQ, 
contact potential lessors, negotiate prices, and complete the 
transactions. NMFS estimates that could

[[Page 49309]]

involve approximately four hours per transaction. Using the Bureau of 
Labor Statistics mean hourly wage rate for first-line supervisors of 
farming, fishing and forestry workers of $23 per hour in 2016 (https://www.bls.gov/oes/current/oes451011.htm), NMFS estimates the value of the 
time involved in these additional 51 leases to be approximately worth 
$4,692 (51 transactions x 4 hours x $23/hr). Since this amount is based 
on six quarters, the annual estimated savings in the time associated 
with these leases is approximately $3,128 per year ($4,692/1.5 years). 
Given that 33 vessels were involved in leasing in 2016, the per vessel 
savings per year would be approximately $95 per vessel.
    Although it is not possible to precisely quantify the economic 
impacts of the preferred alternative, the no action alternative with 
trip-level accountability (i.e., the regulations implemented in 2016) 
and the third alternative with annual accountability (i.e., the 
regulations implemented in 2015) may be informative about the likely 
impacts of the proposed alternatives. The amount of flexibility to 
account for bluefin tuna catch afforded by the proposed alternative is 
likely somewhere in between the two other alternatives: Trip-level 
accountability (no action alternative) and annual accountability (third 
alternative).
    Under the third alternative, there would be no minimum amount of 
IBQ required to fish and vessels would only be required to account for 
their catch at the end of the year. The third alternative is the same 
as the IBQ accounting regulations that were in effect during 2015. 
During 2015, there were 1,124 pelagic longline trips, by 104 vessels, 
which deployed 7,769 sets and 5,549,451 hooks. During 2015, there were 
49 IBQ lease transactions from 24 distinct vessels with a total of 
126,407 lb IBQ leased, and an average price of $3.46 per pound 
(weighted average). There were a total of 16 vessels that incurred 
quota debt, with a total amount of 42,746 lb. The mean revenue per trip 
during 2015 based on dealer data was $17,603 (not including bluefin 
tuna or dolphin revenue). Although it is possible to glean some 
insights from data from 2015 as the basis for evaluating potential 
economic impacts of the third alternative, the fishing behavior of the 
pelagic longline fleet during 2015, the first year of Amendment 7 
regulations, was likely heavily influenced by the newness of the 
regulations and the relatively high amount of uncertainty in 2015.
    There were approximately 2.0 lease transactions per vessel in 2015 
versus 2.5 leases per vessel in 2016. Assuming the 33 vessels that 
leased in 2016 only leased 2 times per year under annual 
accountability, the number of leases would be reduced from 81 to 66, a 
reduction of 15 transactions. This reduction in 15 transactions taking 
approximately 4 hours of an owner's time would be worth $1,380 in labor 
costs per year (15 x 4 hours x $23/hr). Given the 33 vessels that 
leased in 2016, the per vessel cost savings would be approximately $42 
per vessel per year. Alternatively, if vessel owners could reduce the 
number of leases to one per year, the number of lease transactions 
could be reduced down to 33 transactions based on 2016 lease activity. 
This would result in 48 fewer transactions, and would result in a 
savings of up to $4,416 per year for the whole fleet or $134 per vessel 
that leased. However, based on the 2015 IBQ lease data under annual 
accountability that year, it is unlikely that the number of lease 
transactions would be reduced by this much. It is likely that there 
would be more leasing activity associated with this alternative than 
occurred during 2015, since 2015 was the initial implementation of the 
IBQ Program and participants were just learning how the IBQ lease 
market worked and which IBQ Program participants were interested in 
leasing IBQ, as well as a lower average price per pound for leased IBQ.
    There is uncertainty as to the full impact of moving from trip-
level accountability to annual accountability. Annual accountability 
might cause vessel owners to wait until December to try to lease quota. 
Quota available for lease in December might become scarcer and this 
holiday period might cause fewer IBQ shareholders to participate in the 
market. This increased scarcity of IBQ available for lease and the 
tight end of the year timeframe might result in spikes in the price for 
IBQ, thus driving up costs and potentially leaving some vessel owners 
unable to resolve their quota debt at the last minute as the year ends. 
NMFS prefers to incrementally move to quarterly accountability under 
Alternative 2 to avoid some of the risks associated with Alternative 3.

List of Subjects in 50 CFR Part 635

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

    Dated: October 19, 2017.
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.  635.15, revise paragraphs (b)(3), (b)(4)(i) and (ii), 
(b)(5)(i) and (ii), and (b)(8)(i), to read as follows:


Sec.  635.15  Individual bluefin tuna quotas.

* * * * *
    (b) * * *
    (3) Minimum IBQ allocation. For purposes of this paragraph (b), 
calendar year quarters start on January 1, April 1, July 1, and October 
1.
    (i) First fishing trip in a calendar year quarter. Before departing 
on the first fishing trip in a calendar year quarter, a vessel with an 
eligible Atlantic Tunas Longline category permit that fishes with or 
has pelagic longline gear onboard must have the minimum IBQ allocation 
for either the Gulf of Mexico or Atlantic, depending on fishing 
location. The minimum IBQ allocation for a vessel fishing in the Gulf 
of Mexico, or departing for a fishing trip in the Gulf of Mexico, is 
0.25 mt ww (551 lb ww). The minimum IBQ allocation for a vessel fishing 
in the Atlantic or departing for a fishing trip in the Atlantic is 
0.125 mt ww (276 lb ww). A vessel owner or operator may not declare 
into or depart on the first fishing trip in a calendar year quarter 
with pelagic longline gear onboard unless it has the relevant required 
minimum IBQ allocation for the region in which the fishing activity 
will occur.
    (ii) Subsequent fishing trips in a calendar year quarter. 
Subsequent to the first fishing trip in a calendar year quarter, a 
vessel owner or operator may declare into or depart on other fishing 
trips with pelagic longline gear onboard with less than the minimum IBQ 
allocation, but only within that same calendar year quarter.
    (4) Accounting for bluefin tuna caught. (i) With the exception of 
vessels fishing in the NED, in compliance with the requirements of 
paragraph (b)(8) of this section, all bluefin tuna catch (dead discards 
and landings) must be deducted from the vessel's IBQ allocation at the 
end of each pelagic longline trip.

[[Page 49310]]

    (ii) If the amount of bluefin tuna catch on a particular trip 
exceeds the amount of the vessel's IBQ allocation or results in an IBQ 
balance less than the minimum amount described in paragraph (b)(3) of 
this section, the vessel may continue to fish, complete the trip, and 
depart on subsequent trips within the same calendar year quarter. The 
vessel must resolve any quota debt (see paragraph (b)(5) of this 
section) before declaring into or departing on a fishing trip with 
pelagic longline gear onboard in a subsequent calendar year quarter by 
acquiring adequate IBQ allocation to resolve the debt and acquire the 
needed minimum allocation through leasing, as described in paragraph 
(c) of this section.
* * * * *
    (5) * * *
    (i) Quarter level quota debt. A vessel with quota debt incurred in 
a given calendar year quarter cannot depart on a trip with pelagic 
longline gear onboard in a subsequent calendar year quarter until the 
vessel leases and applies allocation for the appropriate region (see 
paragraph (c) of this section) to settle the quota debt such that the 
vessel has the minimum quota allocation required to fish (see paragraph 
(b)(3) of this section) as a result of additional allocation (see 
paragraph (f) of this section). For example, a vessel with quota debt 
incurred during January through March may not depart on a trip with 
pelagic longline gear onboard during April through June (or subsequent 
quarters) until the quota debt has been resolved such that the vessel 
has the minimum quota allocation required to fish.
    (ii) Annual level quota debt. If, by the end of the fishing year, a 
permit holder does not have adequate allocation to settle its vessel's 
quota debt through leasing or additional allocation (see paragraphs (c) 
and (f) of this section), the vessel's allocation will be reduced in 
the amount equal to the quota debt in the subsequent year or years 
until the quota debt is fully accounted for. A vessel may not depart on 
any pelagic longline trips if it has outstanding quota debt from a 
previous fishing year.
* * * * *
    (8) * * *
    (i) When NED bluefin quota is available. Permitted vessels fishing 
with pelagic longline gear may fish in the NED, and any bluefin catch 
will count toward the ICCAT-allocated separate NED quota until the NED 
quota has been filled. Permitted vessels fishing in the NED must still 
fish in accordance with the minimum IBQ allocation requirements, 
specified under paragraph (b)(3) of this section to depart on a trip 
using pelagic longline gear.
* * * * *
0
3. In Sec.  635.71, revise paragraphs (b)(48) and (b)(56) to read as 
follows:


Sec.  635.71  Prohibitions.

* * * * *
    (b) * * *
    (48) Depart on a fishing trip or deploy or fish with any fishing 
gear from a vessel with a pelagic longline on board without accounting 
for bluefin caught as specified in Sec.  635.15(b)(4).
* * * * *
    (56) Fish with or have pelagic longline gear on board if any quota 
debt associated with the permit from a preceding calendar year quarter 
has not been settled as specified at Sec.  635.15(b)(5)(i).
* * * * *
[FR Doc. 2017-23131 Filed 10-24-17; 8:45 am]
BILLING CODE 3510-22-P