Atlantic Highly Migratory Species; Federal Atlantic Tunas Regulations in Maine State Waters, 22006-22009 [2021-08481]
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Federal Register / Vol. 86, No. 78 / Monday, April 26, 2021 / Proposed Rules
(TDD) may call the Federal Relay
Service at 800–877–8339.
SUPPLEMENTARY INFORMATION:
Background
Virgin Islands Tree Boa
On September 30, 2020, we published
in the Federal Register (85 FR 61700) a
proposed rule to reclassify the Virgin
Islands tree boa from endangered to
threatened (i.e., to ‘‘downlist’’ the
species) under the Act (16 U.S.C. 1531
et seq.). The proposed rule opened a 60day public comment period, ending
November 30, 2020. During the
comment period, we received a request
for a public hearing. Therefore, we are
announcing a public hearing to allow
the public an additional opportunity to
provide comments on the proposed rule.
For a description of previous Federal
actions concerning the Virgin Islands
tree boa and information on the types of
comments that would be helpful to us
in promulgating this rulemaking action,
please refer to the September 30, 2020,
proposed rule (85 FR 61700).
Eugenia woodburyana
On October 21, 2020, we published in
the Federal Register (85 FR 66906) a
proposed rule to downlist Eugenia
woodburyana from endangered to
threatened under the Act. The proposed
rule opened a 60-day public comment
period, ending December 21, 2020.
During the comment period, we
received a request for a public hearing.
Therefore, we are announcing a public
hearing to allow the public an
additional opportunity to provide
comments on this proposed rule.
For a description of previous Federal
actions concerning Eugenia
woodburyana and information on the
types of comments that would be
helpful to us in promulgating this
rulemaking action, please refer to the
October 21, 2020, proposed rule (85 FR
66906).
Public Hearing
We will hold one public hearing to
accept comments on the two proposed
rules on the date and at the time listed
above under Public hearing in DATES.
We are holding the public hearing via
the Zoom online video platform and via
teleconference so that participants can
attend remotely. The use of a virtual
public hearing is consistent with our
regulations at 50 CFR 424.16(c)(3).
For security purposes, anyone
intending to listen to and view the
hearing via Zoom, listen to the hearing
by telephone, or provide oral public
comments at the hearing by Zoom or
telephone must register in advance. For
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information on how to register, or if you
encounter problems joining Zoom on
the day of the hearing, visit https://
www.fws.gov/southeast/caribbean.
Registrants will receive the Zoom link
and the telephone number for the public
hearing. Interested members of the
public who are not familiar with the
Zoom platform should view the Zoom
video tutorials (https://
support.zoom.us/hc/en-us/articles/
206618765-Zoom-video-tutorials) prior
to the public hearing.
The public hearing will provide
interested parties an opportunity to
present verbal testimony (formal, oral
comments) regarding either, or both, of
the proposed rules. The public hearing
will not be an opportunity for dialogue
with the Service, but rather a forum for
accepting formal verbal testimony. In
the event there is a large attendance, the
time allotted for oral statements may be
limited. Therefore, anyone wishing to
make an oral statement at the public
hearing for the record is encouraged to
provide a prepared written copy of that
statement to us through the Federal
eRulemaking Portal, or U.S. mail (see
ADDRESSES, above). There are no limits
on the length of written comments
submitted to us.
that we withhold this information from
public review. However, we cannot
guarantee that we will be able to do so.
We will post all hardcopy submissions
on https://www.regulations.gov.
Comments and materials we receive, as
well as supporting documentation we
used in preparing each proposed rule,
will be available for public inspection
on https://www.regulations.gov.
Reasonable Accommodation
The Service is committed to providing
access to the public hearing for all
participants. Closed captioning will be
available during the public hearing.
Participants will also have access to live
audio during the public hearing via
their telephone or computer speakers.
Persons with disabilities requiring
reasonable accommodations to
participate in the hearing should contact
the person listed under FOR FURTHER
INFORMATION CONTACT at least 5 business
days prior to the date of the hearing to
help ensure availability. An accessible
version of the Service’s presentation
will also be posted online at https://
www.fws.gov/southeast/caribbean prior
to the hearing (see DATES, above). See
https://www.fws.gov/southeast/
caribbean for more information about
reasonable accommodation. Finally, a
full audio and video recording and
transcript of the public hearing will be
posted online at https://www.fws.gov/
southeast/caribbean after the hearing.
National Oceanic and Atmospheric
Administration
Public Comments
If you submit information via https://
www.regulations.gov, your entire
submission—including any personal
identifying information—will be posted
on the website. If your submission is
made via hard copy that includes
personal identifying information, you
may request at the top of your document
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Authors
The primary authors of this document
are the Ecological Services Species
Assessment Team staff of the South
Atlantic-Gulf Regional Office, U.S. Fish
and Wildlife Service.
Authority
The authority for this action is the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
Martha Williams,
Principal Deputy Director, Exercising the
Delegated Authority of the Director, U.S. Fish
and Wildlife Service.
[FR Doc. 2021–08580 Filed 4–23–21; 8:45 am]
BILLING CODE 4333–15–P
DEPARTMENT OF COMMERCE
50 CFR Part 635
[Docket No. 210419–0083]
RIN 0648–BK35
Atlantic Highly Migratory Species;
Federal Atlantic Tunas Regulations in
Maine State Waters
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
NMFS proposes adding Maine
to the list of states for which NMFS has
determined that Federal Atlantic tunas
regulations are applicable within state
waters. NMFS is proposing the addition
after considering a request from the
Maine Department of Marine Resources
(MEDMR) and reviewing the state’s
relevant laws and regulations. Most
states and territories bordering the
Atlantic and Gulf of Mexico are
currently included in the list, with the
exception of Maine, Connecticut, and
Mississippi. This proposed addition of
Maine to the list would make Federal
Atlantic tunas regulations—including
but not limited to open and closed
seasons, retention limits, size limits,
SUMMARY:
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Federal Register / Vol. 86, No. 78 / Monday, April 26, 2021 / Proposed Rules
authorized gears and gear restrictions,
and permitting and reporting
requirements—applicable in Maine state
waters. This action would be consistent
with section 9(d) of the Atlantic Tunas
Convention Act (ATCA) and
implementing regulations.
DATES: Written comments must be
received by June 10, 2021. NMFS will
hold a public hearing via conference
call and webinar for this proposed rule
on May 14, 2021, from 1 p.m. to 3 p.m.
For webinar registration information,
see the SUPPLEMENTARY INFORMATION
section of this document.
ADDRESSES: You may submit comments
on this document, identified by NOAA–
NMFS–2021–0013, by electronic
submission. Submit all electronic public
comments via the Federal e-Rulemaking
Portal. Go to https://
www.regulations.gov and enter ‘‘NOAA–
NMFS–2021–0013’’ in the Search box.
Click on the ‘‘Comment’’ icon, complete
the required fields, and enter or attach
your comments.
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 will generally
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).
NMFS will hold a public hearing via
conference call/webinar on this
proposed rule. For specific location,
date and time, see the SUPPLEMENTARY
INFORMATION section of this document.
Copies of this proposed rule and
supporting documents are available
from the HMS Management Division
website at https://
www.fisheries.noaa.gov/topic/atlantichighly-migratory-species or by
contacting Carrie Soltanoff at
carrie.soltanoff@noaa.gov or 301–427–
8503.
NMFS invites the general public and
other Federal agencies to comment on
continuing information collections,
which helps us assess the impact of our
information collection requirements and
minimize the public’s reporting burden.
Written comments and
recommendations for this information
collection should be submitted at the
following website www.reginfo.gov/
public/do/PRAMain. Find this
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particular information collection by
using the search function and entering
either the title of the collection or the
OMB Control Number: 0648–0327
Atlantic HMS Permit Family of Forms,
0648–0328 Atlantic HMS Recreational
Landings Reports, and 0648–0371 HMS
Vessel Logbooks and Cost-Earnings
Reports.
FOR FURTHER INFORMATION CONTACT:
Carrie Soltanoff (carrie.soltanoff@
noaa.gov) or Larry Redd, Jr. (larry.redd@
noaa.gov) at 301–427–8503, or Sarah
McLaughlin (sarah.mclaughlin@
noaa.gov) at 978–281–9260.
SUPPLEMENTARY INFORMATION: Atlantic
tunas fisheries are managed under the
authority of 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.). The 2006 Consolidated Atlantic
Highly Migratory Species (HMS) Fishery
Management Plan (FMP) and its
amendments are implemented by
regulations at 50 CFR part 635. Section
9(d) of ATCA, 16 U.S.C. 971g(d)(2),
states that regulations promulgated to
implement recommendations of the
International Commission for the
Conservation of Atlantic Tunas (ICCAT)
shall apply within the boundaries of any
state bordering the Convention area (the
Atlantic Ocean and adjacent seas) if the
Secretary of Commerce, after notice and
an opportunity for the State to request
a formal hearing, determines that such
state does not implement regulations
consistent with ICCAT
recommendations or if state regulations
are less restrictive than the Federal
regulations or are not effectively
enforced. For Atlantic tunas, section
9(d) of ATCA is implemented in the
Atlantic HMS regulations at 50 CFR
635.1(b). Atlantic tunas regulations in
part 635 include open and closed
seasons, retention limits, size limits,
authorized gears and gear restrictions,
and permitting and reporting
requirements, among others. Atlantic
tunas managed under the regulations in
part 635 are bluefin, bigeye, albacore,
yellowfin, and skipjack tunas.
Background
NMFS made initial determinations
regarding the applicability of Federal
regulations in state waters under section
9(d) of ATCA in 1976. NMFS
determined that, while the State of
Maine had enacted laws and/or
promulgated regulations for the
conservation and management of
Atlantic bluefin tuna, those laws and/or
regulations were less restrictive than
Federal laws or regulations, and that
certain portions of the Federal
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regulations would, therefore, become
effective in the territorial sea adjacent to
the State of Maine (41 FR 32603, August
4, 1976). This included all applicable
Federal bluefin tuna regulations (then
codified at 50 CFR part 285), with the
exception of some purse seine
regulations and retention limits.
In 1985, the scope of this provision
was expanded from bluefin tuna to all
ICCAT-managed Atlantic tunas (50 FR
43396, October 25, 1985). In 1999,
NMFS published a proposed rule to
implement the FMP for Atlantic Tunas,
Swordfish, and Sharks, and Amendment
1 to the Atlantic Billfish FMP (64 FR
3154, January 20, 1999). This action
discussed continued implementation
and review under section 9(d) of ATCA
and stated that NMFS contacted the
relevant states along with Puerto Rico
and the U.S. Virgin Islands to review
relevant state regulations. After
considering the public comment and
responses from various states, the final
rule for this action (64 FR 29090, May
28, 1999) codified and further
implemented ATCA section 9(d)
provisions at 50 CFR 635.1(b), and that
language remains the same to the
present day. That rulemaking did not
include Maine on the list of states at
§ 635.1(b), either in whole or in part.
ATCA requires a continuing review of
state laws and regulations and their
enforcement, and § 635.1(b) accordingly
states that ‘‘NMFS will undertake a
continuing review of State regulations to
determine if regulations applicable to
Atlantic tunas, swordfish or billfish are
at least as restrictive as regulations
contained in this part and if such
regulations are effectively enforced. In
such case, NMFS will file with the
Office of the Federal Register for
publication notification of the basis for
the determination and of the specific
regulations that shall or shall not apply’’
in state waters. NMFS publishes
relevant state regulations annually in
the HMS Stock Assessment and
Fisheries Evaluation (SAFE) Report.
On October 5, 2020, NMFS received a
letter from the MEDMR requesting that
NMFS ‘‘consider a regulatory change to
50 CFR 635.1(b) that would incorporate
Maine into the list of states where
Federal tuna regulations are applied in
state territorial waters, and that this
change apply to regulations for all tuna
species managed under [ATCA].’’ The
letter further stated that ‘‘given the
dynamic nature of Federal tuna
management, MEDMR does not
currently have sufficient resources to
adjust state regulations with the
frequency needed to remain consistent
with Federal regulations.’’ MEDMR
stated that it has recently seen increased
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commercial tuna fishing activity in
Maine state waters.
This proposed rule provides a review
of Maine’s regulations; provides notice
of NMFS’ initial determination that
Maine state regulations are not at least
as restrictive as Federal regulations,
taking into consideration the State of
Maine’s statement that it can no longer
ensure that those regulations maintain
consistency with Federal regulations;
and proposes adding Maine to the list of
states at § 635.1(b) for which NMFS has
determined that Federal Atlantic tunas
regulations under 50 CFR part 635 are
applicable within state waters. The State
of Maine has not requested a formal
hearing for this action. Most states and
territories bordering the Atlantic and
Gulf of Mexico are currently included in
the list at § 635.1(b), with the exception
of Maine, Connecticut, and Mississippi.
This proposed addition to § 635.1(b)
would make Federal Atlantic tunas
regulations applicable in Maine state
waters.
NMFS has conducted a preliminary
review of Maine marine resource laws
and regulations regarding tuna fishing
in state waters and determined that
proposed application of Federal
regulations in state waters is warranted,
consistent with the State’s request and
the ATCA criteria, particularly given the
State’s communication that it can no
longer ensure that state regulations are
consistent with the Federal regulations
on an ongoing basis. Federal tunas
regulations at 50 CFR part 635 include,
but are not limited to, open and closed
seasons, retention limits, size limits,
authorized gears and gear restrictions,
and permitting and reporting
requirements. The current Maine
regulations do not address tuna fishing
in state waters in detail, other than
restricting permitted gears to harpoon
and hook and line (12 Maine Revised
Statutes Annotated (MSRA) § 6551) and
implementing a nonresident special
tuna permit for participation in certain
tuna tournaments (§ 6502). Under Maine
law, anyone who wants to fish
commercially for tunas in state waters
needs a commercial fishing license
(§ 6501). MEDMR policy, although not
codified, is that recreational tuna
fishermen in state waters need to obtain
Federal permits and follow Federal
regulations. Thus, the Maine regulations
appear to be less restrictive than the
relevant Federal regulations.
Federal HMS Angling and Charter/
Headboat category permit holders
already must adhere to Federal HMS
regulations as a condition of their
permit (see 50 CFR 635.4(a)(10)). Based
on available data on commercial catch
of tunas within Maine’s boundaries and
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surrounding waters, it appears that tuna
catch within the boundaries of the state
comes from fishermen who already
possess Federal permits and are
adhering to Federal reporting
requirements for all catch as well as
other Federal tuna regulations, whether
they are in Federal or state waters.
Furthermore, the large majority of tunas
landed in Maine have historically been
caught in Federal waters, with bluefin
tuna being the primary species.
Essential fish habitat for adult Atlantic
tunas, as described in Amendment 10 to
the 2006 Consolidated Atlantic HMS
FMP, supports the observation that
typically only bluefin tuna are found as
far north as Maine. The northern extent
of essential fish habitat for adult bluefin
tuna is described as offshore and coastal
regions of the Gulf of Maine, the midcoast of Maine to Massachusetts, and on
Georges Bank. Although bluefin tuna
can occasionally be found in coastal
waters, they are most abundant in
pelagic habitat.
These factors indicate that this action
would not result in a substantial change
in fishing location, timing, effort,
authorized gear types, or harvest levels.
NMFS does not anticipate a substantial
change to the ecological or
socioeconomic impacts on Atlantic
tunas fisheries, or a significant
economic impact on a substantial
number of small entities.
The rule would, however, require
adherence to Federal tunas regulations
in Maine state waters. If finalized, this
rule would provide regulatory
consistency; enhance enforcement of
season closures, retention limits, size
limits, and other Federal regulations in
Maine state waters; and address the
State of Maine’s observation of
increased commercial tuna fishing
activity in state waters. This change also
would more directly ensure that any
tunas landed in state waters are reported
in compliance with regulations
implementing ICCAT requirements.
In the future, consistent with the
continuing review required by ATCA,
NMFS may more formally review
Connecticut and Mississippi state tunas
regulations to determine if these states
should also be included under
§ 635.1(b). NMFS may also review
regulations for other HMS promulgated
to implement ICCAT recommendations
for all Atlantic, Gulf of Mexico, and
Caribbean states and territories to
determine if their regulations are at least
as restrictive as the Federal regulations.
NMFS requests public comment on
possible initiation of these future
reviews. Currently, Federal HMS
regulations concerning swordfish,
billfish, and sharks do not apply in state
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waters as a condition of Federal HMS
Atlantic Tunas permits.
Request for Comments
Comments on this proposed rule may
be submitted via www.regulations.gov or
at a public conference call/webinar.
NMFS solicits comments on this
proposed rule by June 10, 2021 (see
DATES and ADDRESSES).
During the comment period, NMFS
will hold a conference call/webinar for
this proposed rule. Requests for sign
language interpretation or other
auxiliary aids should be directed to
Carrie Soltanoff at carrie.soltanoff@
noaa.gov or 301–427–8503, at least 7
days prior to the meeting.
The webinar/conference call will take
place on May 14, 2021. Information for
registering and accessing the webinars
can be found at https://
www.fisheries.noaa.gov/action/
proposed-rule-implement-federalatlantic-tunas-regulations-maine-statewaters.
The public is reminded that NMFS
expects participants at the public
hearings to conduct themselves
appropriately. At the beginning of the
conference call, the moderator will
explain how the conference call will be
conducted and how and when attendees
can provide comments. The NMFS
representative will attempt to structure
the meeting so that all the 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
they may not be allowed to speak during
the conference call.
Classification
The NMFS Assistant Administrator
has determined that the proposed rule is
consistent with the 2006 Consolidated
Atlantic HMS FMP and its amendments,
the Magnuson-Stevens Act, and other
applicable laws, subject to further
consideration after public comment.
This proposed rule has been
determined to be not significant for
purposes of Executive Order 12866.
This proposed rule does not contain
a change to a collection of information
requirement for purposes of the
Paperwork Reduction Act of 1995. The
existing collection of information
requirements would continue to apply
under the following OMB Control
Number(s): 0648–0327 Atlantic HMS
Permit Family of Forms, 0648–0328
Atlantic HMS Recreational Landings
Reports, and 0648–0371 HMS Vessel
Logbooks and Cost-Earnings Reports.
The Chief Counsel for Regulation of
the Department of Commerce certified
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to the Chief Counsel for Advocacy of the
Small Business Administration that this
proposed rule, if adopted, would not
have a significant economic impact on
a substantial number of small entities.
The proposed rule would add Maine to
the list of states at 50 CFR 635.1(b) for
which NMFS has determined that
Federal Atlantic tunas regulations under
50 CFR part 635 are applicable within
state waters. Federal Atlantic tunas
regulations, which include open and
closed seasons, retention limits, size
limits, authorized gears and gear
restrictions, and permitting and
reporting requirements, among others,
currently apply in all but three states
bordering the Atlantic Ocean (including
the Gulf of Mexico). This addition to the
list of states was requested by the
MEDMR and further evaluated. ATCA
requires the Secretary of Commerce to
undertake a continuing review of state
laws and regulations pertaining to
species managed under ATCA, of all
states bordering the Atlantic Ocean and
the extent to which such laws and
regulations are enforced, as
implemented in the Atlantic HMS
regulations at § 635.1(b).
Of the managed Atlantic tunas
(bluefin, bigeye, albacore, yellowfin,
and skipjack), typically only bluefin
tuna is found as far north as Maine state
waters. Therefore, the economic
analyses for this action focus on the
bluefin tuna fisheries. However, all
Federal tunas regulations would apply
in Maine state waters following
implementation of this rule.
The Small Business Administration
has established size criteria for all major
industry sectors in the United States,
including fish harvesters. A business
involved in finfish harvesting is
classified as a small business if it is
independently owned and operated, is
not dominant in its field of operation
(including its affiliates), and has
combined annual receipts not in excess
of $19.0 million (NAICS code 114111,
finfish fishing) for all its affiliated
operations worldwide. The Small
Business Administration issued a final
interim rule that adjusted the size
standard for inflation from $7.5 million
to $8 million for business classified
under NAICS 487210 scenic and
sightseeing transportation in water,
including the for-hire fishing industry,
which went into effect on August 19,
2019.
The most recent ex-vessel average
price per pound information is used to
estimate potential ex-vessel gross
revenues for the Atlantic bluefin tuna
fishery. The 2019 average ex-vessel
price per pound for bluefin tuna in the
North Atlantic was $5.61, while the
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highest regional bluefin tuna ex-vessel
price per pound (in the mid-Atlantic)
was $5.94. Current total commercial
bluefin tuna quotas (including the
Reserve category) are 2,238,706 pounds
(1,015 metric tons). Therefore, the
highest total potential revenue for the
entire commercial Atlantic bluefin tuna
fishery is $13.3 million. The 2019 total
ex-vessel annual revenue for the bluefin
tuna fishery was $9.8 million, while
total Atlantic tunas ex-vessel annual
revenue was $22.9 million. Since a
small business is defined as having
annual receipts not in excess of $19.0
million, and total potential bluefin tuna
revenue for the entire fishery is $13.3
million, each individual bluefin tuna
fishing entity would fall within the
small business definition.
The numbers of relevant, annual
Atlantic Tunas or Atlantic HMS vessel
permits based in Maine, as of October
2020, are as follows: 565 Atlantic Tunas
General category permits; 12 Atlantic
Tunas Harpoon category permits; two
Atlantic Tunas Trap category permits;
four Atlantic Tunas Longline category
permits; zero Atlantic Tunas Purse
Seine category permits; and 127 HMS
Charter/Headboat category permits. For
this action, NMFS regards all HMS forhire vessels (those vessels that have an
HMS Charter/Headboat category permit)
as small businesses, while Atlantic HMS
Angling vessels fish recreationally only
and are therefore not considered small
entities for purposes of the Regulatory
Flexibility Act (RFA).
This proposed rule would expand
Federal Atlantic tunas regulations into
Maine state waters. Federal HMS
Charter/Headboat category permit
holders already must adhere to Federal
HMS regulations as a condition of their
permit (see 50 CFR 635.4(a)(10)). Based
on available data on commercial catch
of tunas in Maine and surrounding
waters, it appears that tuna catch in the
state comes from fishermen who already
possess Federal permits and are
adhering to Federal reporting
requirements for all catch as well as
other Federal tuna regulations, whether
they are in Federal or state waters. In
addition, available catch and dealer
data, bluefin tuna habitat, and typical
tuna fishing practices indicate that the
majority of tunas landed in Maine have
historically been caught in Federal
waters. Given these factors, this action
practically would not have an effect on
the regulations that tuna fishermen
based in Maine currently follow.
Furthermore, this action is not expected
to affect the amount of bluefin tuna
caught and sold or result in any change
in the ex-vessel revenues those
fishermen could expect. As a result, an
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22009
initial regulatory flexibility analysis is
not required and none has been
prepared. NMFS invites comment from
the public on the information in this
certification and the determination that
the impact on entities affected by the
proposed rule will not be significant.
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Fishing vessels,
Foreign relations, Imports, Penalties,
Reporting and recordkeeping
requirements, Statistics, Treaties.
Dated: April 20, 2021.
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
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.
2. In § 635.1, revise paragraph (b) to
read as follows:
■
§ 635.1
Purpose and scope.
*
*
*
*
*
(b) Under section 9(d) of ATCA,
NMFS has determined that the
regulations contained in this part with
respect to Atlantic tunas are applicable
within the territorial sea of the United
States adjacent to, and within the
boundaries of, the States of Maine, New
Hampshire, Massachusetts, Rhode
Island, New York, New Jersey,
Delaware, Maryland, Virginia, North
Carolina, South Carolina, Georgia,
Florida, Alabama, Louisiana, and Texas,
and the Commonwealths of Puerto Rico
and the Virgin Islands. NMFS will
undertake a continuing review of State
regulations to determine if regulations
applicable to Atlantic tunas, swordfish,
or billfish are at least as restrictive as
regulations contained in this part and if
such regulations are effectively
enforced. In such case, NMFS will file
with the Office of the Federal Register
for publication notification of the basis
for the determination and of the specific
regulations that shall or shall not apply
in the territorial sea of the identified
State.
[FR Doc. 2021–08481 Filed 4–23–21; 8:45 am]
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]]>Agencies
[Federal Register Volume 86, Number 78 (Monday, April 26, 2021)]
[Proposed Rules]
[Pages 22006-22009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08481]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No. 210419-0083]
RIN 0648-BK35
Atlantic Highly Migratory Species; Federal Atlantic Tunas
Regulations in Maine State Waters
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes adding Maine to the list of states for which
NMFS has determined that Federal Atlantic tunas regulations are
applicable within state waters. NMFS is proposing the addition after
considering a request from the Maine Department of Marine Resources
(MEDMR) and reviewing the state's relevant laws and regulations. Most
states and territories bordering the Atlantic and Gulf of Mexico are
currently included in the list, with the exception of Maine,
Connecticut, and Mississippi. This proposed addition of Maine to the
list would make Federal Atlantic tunas regulations--including but not
limited to open and closed seasons, retention limits, size limits,
[[Page 22007]]
authorized gears and gear restrictions, and permitting and reporting
requirements--applicable in Maine state waters. This action would be
consistent with section 9(d) of the Atlantic Tunas Convention Act
(ATCA) and implementing regulations.
DATES: Written comments must be received by June 10, 2021. NMFS will
hold a public hearing via conference call and webinar for this proposed
rule on May 14, 2021, from 1 p.m. to 3 p.m. For webinar registration
information, see the SUPPLEMENTARY INFORMATION section of this
document.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2021-0013, by electronic submission. Submit all electronic
public comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter ``NOAA-NMFS-2021-0013'' in the Search
box. Click on the ``Comment'' icon, complete the required fields, and
enter or attach your comments.
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 will generally 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).
NMFS will hold a public hearing via conference call/webinar on this
proposed rule. For specific location, date and time, see the
SUPPLEMENTARY INFORMATION section of this document.
Copies of this proposed rule and supporting documents are available
from the HMS Management Division website at https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species or by
contacting Carrie Soltanoff at [email protected] or 301-427-
8503.
NMFS invites the general public and other Federal agencies to
comment on continuing information collections, which helps us assess
the impact of our information collection requirements and minimize the
public's reporting burden. Written comments and recommendations for
this information collection should be submitted at the following
website www.reginfo.gov/public/do/PRAMain. Find this particular
information collection by using the search function and entering either
the title of the collection or the OMB Control Number: 0648-0327
Atlantic HMS Permit Family of Forms, 0648-0328 Atlantic HMS
Recreational Landings Reports, and 0648-0371 HMS Vessel Logbooks and
Cost-Earnings Reports.
FOR FURTHER INFORMATION CONTACT: Carrie Soltanoff
([email protected]) or Larry Redd, Jr. ([email protected]) at
301-427-8503, or Sarah McLaughlin ([email protected]) at 978-
281-9260.
SUPPLEMENTARY INFORMATION: Atlantic tunas fisheries are managed under
the authority of 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.). The 2006 Consolidated Atlantic Highly Migratory
Species (HMS) Fishery Management Plan (FMP) and its amendments are
implemented by regulations at 50 CFR part 635. Section 9(d) of ATCA, 16
U.S.C. 971g(d)(2), states that regulations promulgated to implement
recommendations of the International Commission for the Conservation of
Atlantic Tunas (ICCAT) shall apply within the boundaries of any state
bordering the Convention area (the Atlantic Ocean and adjacent seas) if
the Secretary of Commerce, after notice and an opportunity for the
State to request a formal hearing, determines that such state does not
implement regulations consistent with ICCAT recommendations or if state
regulations are less restrictive than the Federal regulations or are
not effectively enforced. For Atlantic tunas, section 9(d) of ATCA is
implemented in the Atlantic HMS regulations at 50 CFR 635.1(b).
Atlantic tunas regulations in part 635 include open and closed seasons,
retention limits, size limits, authorized gears and gear restrictions,
and permitting and reporting requirements, among others. Atlantic tunas
managed under the regulations in part 635 are bluefin, bigeye,
albacore, yellowfin, and skipjack tunas.
Background
NMFS made initial determinations regarding the applicability of
Federal regulations in state waters under section 9(d) of ATCA in 1976.
NMFS determined that, while the State of Maine had enacted laws and/or
promulgated regulations for the conservation and management of Atlantic
bluefin tuna, those laws and/or regulations were less restrictive than
Federal laws or regulations, and that certain portions of the Federal
regulations would, therefore, become effective in the territorial sea
adjacent to the State of Maine (41 FR 32603, August 4, 1976). This
included all applicable Federal bluefin tuna regulations (then codified
at 50 CFR part 285), with the exception of some purse seine regulations
and retention limits.
In 1985, the scope of this provision was expanded from bluefin tuna
to all ICCAT-managed Atlantic tunas (50 FR 43396, October 25, 1985). In
1999, NMFS published a proposed rule to implement the FMP for Atlantic
Tunas, Swordfish, and Sharks, and Amendment 1 to the Atlantic Billfish
FMP (64 FR 3154, January 20, 1999). This action discussed continued
implementation and review under section 9(d) of ATCA and stated that
NMFS contacted the relevant states along with Puerto Rico and the U.S.
Virgin Islands to review relevant state regulations. After considering
the public comment and responses from various states, the final rule
for this action (64 FR 29090, May 28, 1999) codified and further
implemented ATCA section 9(d) provisions at 50 CFR 635.1(b), and that
language remains the same to the present day. That rulemaking did not
include Maine on the list of states at Sec. 635.1(b), either in whole
or in part.
ATCA requires a continuing review of state laws and regulations and
their enforcement, and Sec. 635.1(b) accordingly states that ``NMFS
will undertake a continuing review of State regulations to determine if
regulations applicable to Atlantic tunas, swordfish or billfish are at
least as restrictive as regulations contained in this part and if such
regulations are effectively enforced. In such case, NMFS will file with
the Office of the Federal Register for publication notification of the
basis for the determination and of the specific regulations that shall
or shall not apply'' in state waters. NMFS publishes relevant state
regulations annually in the HMS Stock Assessment and Fisheries
Evaluation (SAFE) Report.
On October 5, 2020, NMFS received a letter from the MEDMR
requesting that NMFS ``consider a regulatory change to 50 CFR 635.1(b)
that would incorporate Maine into the list of states where Federal tuna
regulations are applied in state territorial waters, and that this
change apply to regulations for all tuna species managed under
[ATCA].'' The letter further stated that ``given the dynamic nature of
Federal tuna management, MEDMR does not currently have sufficient
resources to adjust state regulations with the frequency needed to
remain consistent with Federal regulations.'' MEDMR stated that it has
recently seen increased
[[Page 22008]]
commercial tuna fishing activity in Maine state waters.
This proposed rule provides a review of Maine's regulations;
provides notice of NMFS' initial determination that Maine state
regulations are not at least as restrictive as Federal regulations,
taking into consideration the State of Maine's statement that it can no
longer ensure that those regulations maintain consistency with Federal
regulations; and proposes adding Maine to the list of states at Sec.
635.1(b) for which NMFS has determined that Federal Atlantic tunas
regulations under 50 CFR part 635 are applicable within state waters.
The State of Maine has not requested a formal hearing for this action.
Most states and territories bordering the Atlantic and Gulf of Mexico
are currently included in the list at Sec. 635.1(b), with the
exception of Maine, Connecticut, and Mississippi. This proposed
addition to Sec. 635.1(b) would make Federal Atlantic tunas
regulations applicable in Maine state waters.
NMFS has conducted a preliminary review of Maine marine resource
laws and regulations regarding tuna fishing in state waters and
determined that proposed application of Federal regulations in state
waters is warranted, consistent with the State's request and the ATCA
criteria, particularly given the State's communication that it can no
longer ensure that state regulations are consistent with the Federal
regulations on an ongoing basis. Federal tunas regulations at 50 CFR
part 635 include, but are not limited to, open and closed seasons,
retention limits, size limits, authorized gears and gear restrictions,
and permitting and reporting requirements. The current Maine
regulations do not address tuna fishing in state waters in detail,
other than restricting permitted gears to harpoon and hook and line (12
Maine Revised Statutes Annotated (MSRA) Sec. 6551) and implementing a
nonresident special tuna permit for participation in certain tuna
tournaments (Sec. 6502). Under Maine law, anyone who wants to fish
commercially for tunas in state waters needs a commercial fishing
license (Sec. 6501). MEDMR policy, although not codified, is that
recreational tuna fishermen in state waters need to obtain Federal
permits and follow Federal regulations. Thus, the Maine regulations
appear to be less restrictive than the relevant Federal regulations.
Federal HMS Angling and Charter/Headboat category permit holders
already must adhere to Federal HMS regulations as a condition of their
permit (see 50 CFR 635.4(a)(10)). Based on available data on commercial
catch of tunas within Maine's boundaries and surrounding waters, it
appears that tuna catch within the boundaries of the state comes from
fishermen who already possess Federal permits and are adhering to
Federal reporting requirements for all catch as well as other Federal
tuna regulations, whether they are in Federal or state waters.
Furthermore, the large majority of tunas landed in Maine have
historically been caught in Federal waters, with bluefin tuna being the
primary species. Essential fish habitat for adult Atlantic tunas, as
described in Amendment 10 to the 2006 Consolidated Atlantic HMS FMP,
supports the observation that typically only bluefin tuna are found as
far north as Maine. The northern extent of essential fish habitat for
adult bluefin tuna is described as offshore and coastal regions of the
Gulf of Maine, the mid-coast of Maine to Massachusetts, and on Georges
Bank. Although bluefin tuna can occasionally be found in coastal
waters, they are most abundant in pelagic habitat.
These factors indicate that this action would not result in a
substantial change in fishing location, timing, effort, authorized gear
types, or harvest levels. NMFS does not anticipate a substantial change
to the ecological or socioeconomic impacts on Atlantic tunas fisheries,
or a significant economic impact on a substantial number of small
entities.
The rule would, however, require adherence to Federal tunas
regulations in Maine state waters. If finalized, this rule would
provide regulatory consistency; enhance enforcement of season closures,
retention limits, size limits, and other Federal regulations in Maine
state waters; and address the State of Maine's observation of increased
commercial tuna fishing activity in state waters. This change also
would more directly ensure that any tunas landed in state waters are
reported in compliance with regulations implementing ICCAT
requirements.
In the future, consistent with the continuing review required by
ATCA, NMFS may more formally review Connecticut and Mississippi state
tunas regulations to determine if these states should also be included
under Sec. 635.1(b). NMFS may also review regulations for other HMS
promulgated to implement ICCAT recommendations for all Atlantic, Gulf
of Mexico, and Caribbean states and territories to determine if their
regulations are at least as restrictive as the Federal regulations.
NMFS requests public comment on possible initiation of these future
reviews. Currently, Federal HMS regulations concerning swordfish,
billfish, and sharks do not apply in state waters as a condition of
Federal HMS Atlantic Tunas permits.
Request for Comments
Comments on this proposed rule may be submitted via
www.regulations.gov or at a public conference call/webinar. NMFS
solicits comments on this proposed rule by June 10, 2021 (see DATES and
ADDRESSES).
During the comment period, NMFS will hold a conference call/webinar
for this proposed rule. Requests for sign language interpretation or
other auxiliary aids should be directed to Carrie Soltanoff at
[email protected] or 301-427-8503, at least 7 days prior to the
meeting.
The webinar/conference call will take place on May 14, 2021.
Information for registering and accessing the webinars can be found at
https://www.fisheries.noaa.gov/action/proposed-rule-implement-federal-atlantic-tunas-regulations-maine-state-waters.
The public is reminded that NMFS expects participants at the public
hearings to conduct themselves appropriately. At the beginning of the
conference call, the moderator will explain how the conference call
will be conducted and how and when attendees can provide comments. The
NMFS representative will attempt to structure the meeting so that all
the 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
they may not be allowed to speak during the conference call.
Classification
The NMFS Assistant Administrator has determined that the proposed
rule is consistent with the 2006 Consolidated Atlantic HMS FMP and its
amendments, the Magnuson-Stevens Act, and other applicable laws,
subject to further consideration after public comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
This proposed rule does not contain a change to a collection of
information requirement for purposes of the Paperwork Reduction Act of
1995. The existing collection of information requirements would
continue to apply under the following OMB Control Number(s): 0648-0327
Atlantic HMS Permit Family of Forms, 0648-0328 Atlantic HMS
Recreational Landings Reports, and 0648-0371 HMS Vessel Logbooks and
Cost-Earnings Reports.
The Chief Counsel for Regulation of the Department of Commerce
certified
[[Page 22009]]
to the Chief Counsel for Advocacy of the Small Business Administration
that this proposed rule, if adopted, would not have a significant
economic impact on a substantial number of small entities. The proposed
rule would add Maine to the list of states at 50 CFR 635.1(b) for which
NMFS has determined that Federal Atlantic tunas regulations under 50
CFR part 635 are applicable within state waters. Federal Atlantic tunas
regulations, which include open and closed seasons, retention limits,
size limits, authorized gears and gear restrictions, and permitting and
reporting requirements, among others, currently apply in all but three
states bordering the Atlantic Ocean (including the Gulf of Mexico).
This addition to the list of states was requested by the MEDMR and
further evaluated. ATCA requires the Secretary of Commerce to undertake
a continuing review of state laws and regulations pertaining to species
managed under ATCA, of all states bordering the Atlantic Ocean and the
extent to which such laws and regulations are enforced, as implemented
in the Atlantic HMS regulations at Sec. 635.1(b).
Of the managed Atlantic tunas (bluefin, bigeye, albacore,
yellowfin, and skipjack), typically only bluefin tuna is found as far
north as Maine state waters. Therefore, the economic analyses for this
action focus on the bluefin tuna fisheries. However, all Federal tunas
regulations would apply in Maine state waters following implementation
of this rule.
The Small Business Administration has established size criteria for
all major industry sectors in the United States, including fish
harvesters. A business involved in finfish harvesting is classified as
a small business if it is independently owned and operated, is not
dominant in its field of operation (including its affiliates), and has
combined annual receipts not in excess of $19.0 million (NAICS code
114111, finfish fishing) for all its affiliated operations worldwide.
The Small Business Administration issued a final interim rule that
adjusted the size standard for inflation from $7.5 million to $8
million for business classified under NAICS 487210 scenic and
sightseeing transportation in water, including the for-hire fishing
industry, which went into effect on August 19, 2019.
The most recent ex-vessel average price per pound information is
used to estimate potential ex-vessel gross revenues for the Atlantic
bluefin tuna fishery. The 2019 average ex-vessel price per pound for
bluefin tuna in the North Atlantic was $5.61, while the highest
regional bluefin tuna ex-vessel price per pound (in the mid-Atlantic)
was $5.94. Current total commercial bluefin tuna quotas (including the
Reserve category) are 2,238,706 pounds (1,015 metric tons). Therefore,
the highest total potential revenue for the entire commercial Atlantic
bluefin tuna fishery is $13.3 million. The 2019 total ex-vessel annual
revenue for the bluefin tuna fishery was $9.8 million, while total
Atlantic tunas ex-vessel annual revenue was $22.9 million. Since a
small business is defined as having annual receipts not in excess of
$19.0 million, and total potential bluefin tuna revenue for the entire
fishery is $13.3 million, each individual bluefin tuna fishing entity
would fall within the small business definition.
The numbers of relevant, annual Atlantic Tunas or Atlantic HMS
vessel permits based in Maine, as of October 2020, are as follows: 565
Atlantic Tunas General category permits; 12 Atlantic Tunas Harpoon
category permits; two Atlantic Tunas Trap category permits; four
Atlantic Tunas Longline category permits; zero Atlantic Tunas Purse
Seine category permits; and 127 HMS Charter/Headboat category permits.
For this action, NMFS regards all HMS for-hire vessels (those vessels
that have an HMS Charter/Headboat category permit) as small businesses,
while Atlantic HMS Angling vessels fish recreationally only and are
therefore not considered small entities for purposes of the Regulatory
Flexibility Act (RFA).
This proposed rule would expand Federal Atlantic tunas regulations
into Maine state waters. Federal HMS Charter/Headboat category permit
holders already must adhere to Federal HMS regulations as a condition
of their permit (see 50 CFR 635.4(a)(10)). Based on available data on
commercial catch of tunas in Maine and surrounding waters, it appears
that tuna catch in the state comes from fishermen who already possess
Federal permits and are adhering to Federal reporting requirements for
all catch as well as other Federal tuna regulations, whether they are
in Federal or state waters. In addition, available catch and dealer
data, bluefin tuna habitat, and typical tuna fishing practices indicate
that the majority of tunas landed in Maine have historically been
caught in Federal waters. Given these factors, this action practically
would not have an effect on the regulations that tuna fishermen based
in Maine currently follow. Furthermore, this action is not expected to
affect the amount of bluefin tuna caught and sold or result in any
change in the ex-vessel revenues those fishermen could expect. As a
result, an initial regulatory flexibility analysis is not required and
none has been prepared. NMFS invites comment from the public on the
information in this certification and the determination that the impact
on entities affected by the proposed rule will not be significant.
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports,
Penalties, Reporting and recordkeeping requirements, Statistics,
Treaties.
Dated: April 20, 2021.
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. 635.1, revise paragraph (b) to read as follows:
Sec. 635.1 Purpose and scope.
* * * * *
(b) Under section 9(d) of ATCA, NMFS has determined that the
regulations contained in this part with respect to Atlantic tunas are
applicable within the territorial sea of the United States adjacent to,
and within the boundaries of, the States of Maine, New Hampshire,
Massachusetts, Rhode Island, New York, New Jersey, Delaware, Maryland,
Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama,
Louisiana, and Texas, and the Commonwealths of Puerto Rico and the
Virgin Islands. NMFS will undertake a continuing review of State
regulations to determine if regulations applicable to Atlantic tunas,
swordfish, or billfish are at least as restrictive as regulations
contained in this part and if such regulations are effectively
enforced. In such case, NMFS will file with the Office of the Federal
Register for publication notification of the basis for the
determination and of the specific regulations that shall or shall not
apply in the territorial sea of the identified State.
[FR Doc. 2021-08481 Filed 4-23-21; 8:45 am]
BILLING CODE 3510-22-P
