Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Quotas and Atlantic Tuna Fisheries Management Measures, 39019-39032 [2011-16769]

Download as PDF Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations § 384.301 Substantial compliance— general requirements. * * * * * (f) A State must come into substantial compliance with the requirements of subpart B of this part in effect as of July 8, 2011, as soon as practical but, unless otherwise specifically provided in this part, not later than July 8, 2014. Issued on: June 27, 2011. William Bronrott, Deputy Administrator. [FR Doc. 2011–16683 Filed 7–1–11; 8:45 am] BILLING CODE 4910–EX–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 110210132–1275–02] RIN 0648–BA65 Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Quotas and Atlantic Tuna Fisheries Management Measures National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: NMFS is modifying Atlantic bluefin tuna (BFT) base quotas for all domestic fishing categories; establishing BFT quota specifications for the 2011 fishing year; reinstating pelagic longline target catch requirements for retaining BFT in the Northeast Distant Gear Restricted Area (NED); amending the Atlantic tunas possession-at-sea and landing regulations to allow removal of Atlantic tunas tail lobes; and clarifying the transfer-at-sea regulations for Atlantic tunas. This action is necessary to implement recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT), as required by the Atlantic Tunas Convention Act (ATCA), and to achieve domestic management objectives under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). DATES: The amendments to § 635.27 are effective July 5, 2011. The 2011 quota specifications are effective July 5, 2011 through December 31, 2011. The amendments to §§ 635.23, 635.29, and 635.30 are effective August 4, 2011. ADDRESSES: Supporting documents, including the Environmental Assessment, Regulatory Impact Review, srobinson on DSK4SPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 16:57 Jul 01, 2011 Jkt 223001 and Final Regulatory Flexibility Analysis (EA/RIR/FRFA), are available from Sarah McLaughlin, Highly Migratory Species (HMS) Management Division, Office of Sustainable Fisheries (F/SF1), NMFS, 55 Great Republic Drive, Gloucester, MA 01930. These documents and others, such as the Fishery Management Plans described below, also may be downloaded from the HMS Web site at https:// www.nmfs.noaa.gov/sfa/hms/. FOR FURTHER INFORMATION CONTACT: Sarah McLaughlin or Brad McHale, 978–281–9260. SUPPLEMENTARY INFORMATION: Atlantic bluefin tuna, bigeye tuna, albacore tuna, yellowfin tuna, and skipjack tuna (hereafter referred to as ‘‘Atlantic tunas’’) are managed under the dual authority of the Magnuson-Stevens Act and ATCA. ATCA authorizes the Secretary of Commerce (Secretary) to promulgate regulations, as may be necessary and appropriate, to implement ICCAT recommendations. The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary to the Assistant Administrator for Fisheries, NMFS. Background Background information about the need for modification of the BFT base quotas for all domestic fishing categories, the 2011 BFT quota specifications, and amendment of the Atlantic tuna fisheries management measures was provided in the preamble to the proposed rule (76 FR 13583, March 14, 2011) and is not repeated here. Changes From the Proposed Rule The total amount of available annual quota is determined by the ICCATrecommended U.S. baseline BFT quota after consideration of overharvest/ underharvest from the previous fishing year and any accounting for estimated dead discards of BFT. At the time the proposed rule was prepared, NMFS used the 2009 estimate of 160 mt as a proxy for potential 2011 dead discards because the BFT dead discard estimate for 2010 was not yet available. The 2010 dead discard estimate, 122.3 mt, became available from the NMFS Southeast Fisheries Science Center during the comment period. Estimates of dead discards are only available for the Longline category at this time. Estimates from other BFT gear types and fishing sectors that are not observed at sufficient levels for estimation and that do not report via a logbook are not included in this calculation. Use of the PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 39019 2010 estimate as a proxy for estimated 2011 dead discards in the final rule is appropriate because it is the best available and most complete information NMFS currently has regarding dead discards. In the proposed rule, under each baseline quota alternative, NMFS also set out its calculation of ‘‘available’’ annual quota and its proposed allocation of that available quota among the commercial and recreational domestic fishing categories (i.e., quota specifications), and its proposed methodology for handling dead discards. NMFS proposed a calculation and allocation methodology consistent with the 2006 Consolidated HMS FMP and implementing regulations, but different than the methodology used for the past 4 years. NMFS received comments on the proposed allocation methodology both at public hearings and in writing during the public comment period. NMFS considered the comments (summarized in the Response to Comments section below) and the updated (2010) dead discard estimate, and after public discussion and input has decided to account for dead discards in a different manner to establish the 2011 BFT quota specifications as described below. Note that these considerations are for the 2011 quota specifications only. To set the final 2011 BFT quota specifications, NMFS has decided to account up front (i.e., at the beginning of the fishing year) for half of the estimated dead discards, using the recent 2010 estimate rather than the 2009 estimate used at the proposed rule stage. In the proposed rule, NMFS had proposed to subtract from the overall quota all of the estimated dead discards up front and then allocate the remaining quota among the fishery categories, even though the United States is not required by ICCAT or current regulations to account for the total amount of dead discards until the end of the fishing season. In the final rule, NMFS is accounting for half of the estimated pelagic longline dead discards up front and deducting that portion of expected longline discards directly from the Longline category quota. Accounting for dead discards in the Longline category in this way may provide some incentive for pelagic longline fishermen to reduce those interactions that may result in dead discards. Also in response to public comment, NMFS is applying half of the 94.9 mt of 2010 underharvest that is allowed to be carried forward to 2011 to the Longline category and maintaining the other half in the Reserve category. NMFS intends to maintain this underharvest in the E:\FR\FM\05JYR1.SGM 05JYR1 39020 Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations Reserve category as needed until later in the fishing year for maximum flexibility in accounting for 2011 landings and dead discards. NMFS took into consideration a broad range of public comment on the quota specification methodology and allocations in designing this final action. NMFS considers this action to be a transitional approach from the method used over the past 4 fishing years. Current regulations provide that the dead discard estimate may, but is not required to be, subtracted from the annual U.S. quota, and NMFS previously opted to deduct that estimate at the beginning of the year when the quota specifications were established. These final specifications are consistent with HMS regulations, are a logical outgrowth of the originally proposed calculation methodology, and would not affect the base quotas analyzed in Alternatives A1 and A2 of the EA/RIR/ FRFA. For the directed fishing categories, this final rule maintains the directed categories at their baseline quotas, which reflect application of the allocation scheme established in the Consolidated Atlantic Highly Migratory Species Fishery Management Plan (Consolidated HMS FMP) to the 2011 baseline U.S. BFT quota (923.7 mt). All landings and dead discards will be accounted for and reported to ICCAT, and NMFS will make any ICCATrequired adjustments to future U.S. BFT quotas, as necessary. Specifically, to set the final 2011 BFT quota specifications, NMFS first applies the percentages in the Consolidated HMS FMP allocation scheme to the overall U.S. quota of 923.7 mt to obtain the baseline category quotas for the different categories (i.e., the General, Harpoon, Purse Seine, Angling, Longline, Trap, and Reserve categories). NMFS then deducts half of the 2010 dead discard estimate of 122.3 mt (i.e., 61.2 mt) from the 2011 baseline Longline category quota of 74.8 mt and applies half of the 94.9 mt allowed to be carried forward to 2011 to the Longline category, i.e., 74.8¥61.2 + 47.5 = 61.1 mt adjusted Longline subquota (not including the 25-mt allocation set aside by ICCAT for the NED). NMFS will add the remainder of the 2010 underharvest that can be carried forward to 2011 (47.4 mt) to the Reserve category’s baseline allocation of 23.1 mt, for an adjusted Reserve category quota of 70.5 mt. For the directed fishing categories, NMFS is not making any adjustments to the allocations that result from applying the scheme established in the Consolidated HMS FMP to the 2011 baseline U.S. BFT quota. Quota specifications for 2012 would be addressed in a separate, future action using information on 2011 BFT landings and the best available dead discard estimate at that time. Regarding the Atlantic tunas transferat-sea regulations, and in response to public comment, NMFS adds the words ‘‘or other gear’’ to further clarify that ‘‘transfer’’ includes moving a tuna from fishing gear or other gear in the water from one vessel to another. 2011 Quota Specifications NMFS establishes final 2011 quota specifications as follows (and as shown in Table 1): General category—435.1 mt; Harpoon category—36 mt; Purse Seine category—171.8 mt; Angling category— 182 mt; Longline category—61.1 mt; and Trap category—0.9 mt. The amount allocated to the Reserve category for inseason adjustments, and potential quota transfers, scientific research collection, and accounting for potential overharvest in any category except the Purse Seine category, would be 70.5 mt. The General category quota of 435.1 mt would be divided further into the time-period allocations established in the Consolidated HMS FMP. Thus, 23.1 mt (5.3 percent) would be allocated to the General Category for the period beginning January 1, 2011, and ending January 31, 2011; 217.6 mt (50 percent) for the period beginning June 1, 2011, and ending August 31, 2011; 115.3 mt (26.5 percent) for the period beginning September 1, 2011, and ending September 30, 2011; 56.6 mt (13 percent) for the period beginning October 1, 2011, and ending November 30, 2011; and 22.6 mt (5.2 percent) for the period beginning December 1, 2011, and ending December 31, 2011. The Angling category quota of 182 mt would be further divided, pursuant to the area subquota allocations established in the Consolidated HMS FMP, as follows: School BFT—94.9 mt, with 36.5 mt to the northern area (north of 39°18′ N. latitude), 40.8 mt to the southern area (south of 39°18′ N. latitude), plus 17.6 mt held in reserve; large school/small medium BFT—82.9 mt, with 39.1 mt to the northern area and 43.8 mt to the southern area; and large medium/giant BFT—4.2 mt, with 1.4 mt to the northern area and 2.8 mt to the southern area. The Longline category would be further divided in accordance with the North/South allocation percentages (i.e., no more than 60 percent to the south of 31° N. latitude) in the Consolidated HMS FMP. Thus, the Longline category quota of 61.1 mt would be subdivided as follows: 24.4 mt to pelagic longline vessels landing BFT north of 31° N. latitude, and 36.7 mt to pelagic longline vessels landing BFT south of 31° N. latitude. NMFS would account for landings under the 25-mt NED allocation separately from other Longline category landings. TABLE 1—ATLANTIC BLUEFIN TUNA QUOTAS AND QUOTA SPECIFICATIONS (IN METRIC TONS) FOR THE 2011 FISHING YEAR (JANUARY 1–DECEMBER 31, 2011) 2011 Quota specifications Baseline allocation for 2011 and 2012 (per 2010 ICCAT recommendation and consolidated HMS FMP allocations) Category (% share of baseline quota) 182.0 SUBQUOTAS: School 94.9 Reserve 17.6 North 36.5 South 40.8 LS/SM 82.9 North 39.1 South 43.8 Trophy 4.2 2010 Underharvest to carry forward to 2011 (94.9 mt total) 923.7 Angling (19.7) ................................. srobinson on DSK4SPTVN1PROD with RULES Total (100) ...................................... Dead discard deduction (1⁄2 of 2010 proxy of 122.3 mt) VerDate Mar<15>2010 18:17 Jul 01, 2011 Jkt 223001 PO 00000 Adjusted 2011 fishing year quota 957.4 Frm 00060 ........................ Fmt 4700 Sfmt 4700 ........................ E:\FR\FM\05JYR1.SGM 182.0 SUBQUOTAS: School 94.9 Reserve 17.6 North 36.5 South 40.8 LS/SM 82.9 North 39.1 South 43.8 Trophy 4.2 05JYR1 Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations 39021 TABLE 1—ATLANTIC BLUEFIN TUNA QUOTAS AND QUOTA SPECIFICATIONS (IN METRIC TONS) FOR THE 2011 FISHING YEAR (JANUARY 1–DECEMBER 31, 2011)—Continued 2011 Quota specifications Baseline allocation for 2011 and 2012 (per 2010 ICCAT recommendation and consolidated HMS FMP allocations) Category (% share of baseline quota) 2010 Underharvest to carry forward to 2011 (94.9 mt total) ........................ ........................ North 1.4 South 2.8 Dead discard deduction (1⁄2 of 2010 proxy of 122.3 mt) ........................ ........................ Adjusted 2011 fishing year quota North 1.4 South 2.8 General (47.1) ................................ 435.1 SUBQUOTAS: Jan 23.1 Jun–Aug 217.6 Sept 115.3 Oct–Nov 56.6 Dec 22.6 Harpoon (3.9) ................................. 36.0 ........................ ........................ 36.0 Purse Seine (18.6) ......................... 171.8 ........................ ........................ 171.8 Longline (8.1) .................................. 74.8 SUBQUOTAS: North (-NED) 29.9 NED 25.0 * South 44.9 0.9 23.1 ¥61.2 +47.5 ........................ ........................ ........................ +47.4 Trap (0.1) ........................................ Reserve (2.5) .................................. 435.1 SUBQUOTAS: Jan 23.1 Jun–Aug 217.6 Sept 115.3 Oct–Nov 56.6 Dec 22.6 61.1 SUBQUOTAS: North (-NED) 24.4 NED 25.0 * South 36.7 0.9 70.5 * 25-mT ICCAT set-aside to account for bycatch of BFT in pelagic longline fisheries in the NED. Not included in totals at top of table. Reinstatement of NED Target Catch Requirements srobinson on DSK4SPTVN1PROD with RULES NMFS reinstates target catch requirements for pelagic longline vessels fishing in the NED. This action removes the exemption from target catch requirements that effectively has applied in the NED since November 2003. NMFS is removing the provision that allows unlimited retention of commercial-sized BFT taken incidental to fishing for other species in the NED up to the amount allocated for the NED (currently 25 mt). Instead, the same target catch limits apply in all areas (i.e., both inside and outside of the NED) as follows: One large medium or giant BFT VerDate Mar<15>2010 18:17 Jul 01, 2011 Jkt 223001 (i.e., measuring 73 inches (185 cm) or greater) per vessel per trip may be landed, provided that at least 2,000 lb of species other than BFT are legally caught, retained, and offloaded from the same trip and are recorded on the dealer weighout slip as sold; two large medium or giant BFT may be landed incidentally to at least 6,000 lb of species other than BFT; and three large medium or giant BFT may be landed incidentally to at least 30,000 lb of species other than BFT. PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 Atlantic Tunas Possession at Sea and Landing Form NMFS clarifies the regulations regarding Atlantic tunas possession at sea and landing to specify that as long as the fork of the tail remains intact, the upper and lower lobes of the tail may be removed (as shown in Figure 1). This change balances the need for maintaining a standardized method of measuring Atlantic tunas with the request to allow Atlantic tunas to be stored at sea in a more efficient manner. This rulemaking does not affect the measurement methodology or requirements for species other than Atlantic tunas. E:\FR\FM\05JYR1.SGM 05JYR1 Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations Atlantic Tunas Transfer at Sea NMFS clarifies the intent of the Atlantic tunas transfer-at-sea regulations and prohibitions by adding a sentence to the regulatory text regarding transfer at sea of Atlantic tunas that would read: ‘‘Notwithstanding the definition of ‘harvest’ at § 600.10, for the purposes of this part, ‘transfer’ includes, but is not limited to, moving or attempting to move an Atlantic tuna that is on fishing or other gear in the water from one vessel to another vessel.’’ In the future, NMFS may make similar clarifications regarding transfer at sea for other Atlantic highly migratory species via separate actions pertaining to those species. srobinson on DSK4SPTVN1PROD with RULES Comments and Responses NMFS received approximately 2,000 written comments representing approximately 4,000 individuals or organizations, and oral comments were received from the approximately 400 participants who attended the six public hearings (in Barnegat, NJ; Manteo, NC; Gloucester, MA; Silver Spring, MD; Portland, ME; and Fairhaven, MA). The majority of the comments received opposed the 2011 BFT quota specifications as proposed. Below, NMFS summarizes and responds to all comments made specifically on the proposed rule. In addition, NMFS received comments on issues that were not part of this rulemaking. These comments are summarized under ‘‘Other Issues’’ below. A. BFT Base Quota Comment 1: NMFS should implement the ICCAT-recommended U.S. quota. Response: NMFS agrees. Implementing the ICCAT-recommended baseline U.S. BFT quota is necessary for the United States to be in compliance VerDate Mar<15>2010 16:57 Jul 01, 2011 Jkt 223001 with the current ICCAT western BFT Recommendation, consistent with ATCA. The western Atlantic BFT Total Allowable Catch (TAC), which includes the U.S. quota, is expected to allow for continued BFT stock growth under the both the low and high stock recruitment scenarios considered by ICCAT’s Standing Committee on Research and Statistics (SCRS). Comment 2: It is arbitrary and capricious for NMFS to adopt quotas relying on the ICCAT western BFT recommendation. A 2008 independent review found ICCAT ineffective at controlling catch and that ICCAT management objectives have not been met. By relying entirely on ICCAT recommendations to set quotas, NMFS has ‘‘spurned its legal obligations under the Magnuson-Stevens Act,’’ specifically violating National Standard 1, which requires that conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery, and National Standard 2, which requires that conservation and management measures shall be based upon the best scientific information available. NMFS should not rely solely on ICCAT stock assessments. Response: NMFS disagrees that adoption of the ICCAT-recommended quota for western BFT is arbitrary and capricious or violates National Standards 1 and 2. NMFS considers the information considered by SCRS in the BFT stock assessments to constitute the best information currently available on which to make BFT fishery management decisions. The United States is working with other ICCAT Contracting Parties to prevent BFT overfishing and overfished conditions for both stocks while providing reasonable opportunities to PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 fish. At its 2010 annual meeting, ICCAT adopted TACs and other conservation and management measures that are within the range of scientific advice that SCRS provided to ICCAT for both the western and eastern Atlantic stocks. Over the past several years, ICCAT has taken steps to strengthen its control of the eastern Atlantic bluefin tuna fishery, including a shorter fishing season, further reductions in fishing capacity, and stronger monitoring and compliance measures. ICCAT’s 2010 assessment of the eastern BFT stock indicated that maintaining catches at the current TAC will likely allow biomass to increase if compliance with the current management measures continues. The latest stock assessment concluded that the current western Atlantic TAC should allow spawning stock biomass to increase under both high and low productivity scenarios. The western Atlantic fishery has also had a long history of compliance. In addition, the current ICCAT BFT recommendations for both the western and eastern stocks have a provision that would suspend all bluefin fisheries if SCRS detects a serious threat of stock collapse. Further, NMFS manages BFT under the dual authority of the MagnusonStevens Act and ATCA. ATCA mandates that no regulation promulgated may have the effect of increasing or decreasing any allocation or quota of fish to which the United States agreed pursuant to an ICCAT recommendation. Comment 3: NMFS should reduce significantly, or eliminate, quotas for fisheries targeting BFT and take immediate measures to reduce incidental mortality. Response: NMFS is required under the Magnuson-Stevens Act and ATCA to E:\FR\FM\05JYR1.SGM 05JYR1 ER05JY11.000</GPH> 39022 srobinson on DSK4SPTVN1PROD with RULES Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations provide U.S. fishing vessels with a reasonable opportunity to harvest the ICCAT-recommended quota. NMFS allocates the U.S. quota among categories to ensure that available fishing opportunities are distributed over as wide a range as possible with regard to time of year, geographic area, and type of participation while maintaining consistency with BFT conservation and management measures. Both the recent action to require the use of weak hooks by pelagic longline vessels fishing for HMS in the Gulf of Mexico and the action in this final rule to reinstate target catch requirements in the NED are consistent with the agency’s efforts to address bycatch issues and manage BFT catch and landings within available quotas. Comment 4: NMFS must consider the scientific information presented in the petition to list BFT as endangered or threatened under the Endangered Species Act (ESA), and CBD’s comments on the 90-day finding, before issuing final conservation and management measures, including quotas, for BFT. Response: Much of the information that was considered in the BFT listing petition status review was also considered by ICCAT and by NMFS in setting the BFT TAC and category quotas, respectively. NMFS proposed and is finalizing these management measures to be effective for June 2011, when ICCAT Recommendation 10–03 enters into force. Although the two efforts were conducted in parallel, the agency’s fishery management obligations, including establishing the 2011 quota specifications, continued under ATCA and the Magnuson-Stevens Act during the status review process. On May 27, 2011, NOAA announced that listing BFT as endangered or threatened is not warranted at this time (76 FR 31556, June 1, 2011). NOAA has committed to revisit this decision by early 2013, when more information will be available about the effects of the Deepwater Horizon BP oil spill, the 2012 SCRS BFT stock assessment, and the 2012 ICCAT BFT recommendations. NOAA also announced on May 27, 2011, that it is formally designating both the western Atlantic and eastern Atlantic and Mediterranean stocks of BFT as ‘‘species of concern’’ under the ESA. This places the species on a watch list for concerns about its status and threats to the species. B. 2011 BFT Quota Specifications Comment 5: NMFS should not deduct the dead discard estimate from the base quota. To account for pelagic longline BFT dead discards off the U.S. base quota is unfair as it would result in VerDate Mar<15>2010 16:57 Jul 01, 2011 Jkt 223001 reduced quotas for the more selective, directed fishing categories, and be a de facto reallocation of quota shares from those established in the Consolidated HMS FMP. It would also be economically damaging to the directed fisheries and support industries, and likely would result in shorter seasons and lower retention limits. NMFS is not managing for optimum yield when it allows the Longline category’s landings and dead discards to total approximately 28 percent of the U.S. quota. Response: The United States must account for dead discards, regardless of which fishery they occur in, to comply with ICCAT recommendations. The only dead discard data currently available comes from the longline fishery. Existing BFT quota regulations state that NMFS may subtract dead discards from the U.S. quota and make the remainder available to vessels subject to U.S. jurisdiction. This is an allowable methodology under existing regulations, and was not a new proposal in this rulemaking. However, as described above, following consideration of public comment and the availability of updated dead discard estimates, NMFS has decided to account for one half of the dead discard estimate up front and directly off the Longline category quota, which will mitigate potential economic impacts commenters associated with adjusting the baseline quota for dead discards. For the directed fishing categories, NMFS is applying the allocation scheme established in the Consolidated HMS FMP to the 2011 baseline U.S. BFT quota with no further adjustments. It is important to consider that the BFT quota allocations in the Consolidated HMS FMP were based on historic landings and were established initially in 1992. Baseline quotas were modified in 1995 and 1997 but have remained the same since implementation of the 1999 FMP when a separate discard allowance was provided for in the ICCAT BFT recommendation. Following ICCAT’s elimination of the dead discard allowance and change to include dead discards within TACs in 2006, NMFS has not modified the allocation scheme to include dead discards into the baseline quotas. The United States has accounted for this mortality as part of the domestic specification calculation process for the last several years and reports dead discard estimates to ICCAT annually. This is one of many issues the agency intends to consider in its review of BFT management in the near future. Regarding the concern about this PO 00000 Frm 00063 Fmt 4700 Sfmt 4700 39023 accounting method creating shorter fishing seasons and lower retention limits, specifically for the recreational BFT fishery in 2011, the inseason actions implemented in April (i.e., retention limit adjustment and closure of the southern area BFT trophy fishery) were based on recent changes in the fishery and size of bluefin tuna available to fishermen, not the proposed quota specifications. Finally, NMFS would like to clarify that accounting for dead discards as proposed or as finalized does not alter the Longline category’s allocation of the U.S. quota. As proposed and finalized, the Longline category’s allocation per the Consolidated HMS FMP is 8.1 percent to allow for landings of BFT, not dead discards. The pelagic longline fleet does not benefit economically from the BFT they must discard dead. Comment 6: NMFS should not deduct the dead discard estimate from the overall quota (i.e., ‘‘off the top’’) because it would provide no incentive for the pelagic longline fishery to reduce BFT interactions and dead discards. NMFS should account for these dead discards within the Longline category quota, and, generally, should hold each category accountable for its overharvests. Response: As discussed above, in these final quota specifications, NMFS is accounting for half of the estimated dead discards within the Longline category up front. This action may provide some incentive for pelagic longline fishermen to reduce BFT interactions that may result in dead discards. Reinstating target catch requirements in the NED also may serve as a disincentive to fish in areas where BFT interactions could be high. As discussed below, the pelagic longline fishery is currently the only fishery for which sufficient data is collected to estimate dead discards. However, an unknown level of dead discards occurs in directed BFT fishing fisheries as well and NMFS will consider how best to modify data collection programs to provide dead discard estimates in the future. Comment 7: NMFS should consider implementing a 25-percent to 50percent reduction of the allocated quota to the Longline category for one or more years. The longliners know there need to be some changes, although it would not be appropriate to cut out the pelagic longline fishery entirely. Response: NMFS does not eliminate the quota for the Longline category in the final rule, although some of the approaches recommended in the comments on the proposed rulemaking would have had that effect. As discussed above, NMFS is accounting E:\FR\FM\05JYR1.SGM 05JYR1 srobinson on DSK4SPTVN1PROD with RULES 39024 Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations for half of the estimated pelagic longline dead discards up front and deducting that portion of expected longline discards directly from the Longline category quota. Accounting for dead discards in the Longline category in this way may provide some incentive for pelagic longline fishermen to reduce those interactions that may result in dead discards. Reinstating pelagic longline target catch requirements for retaining BFT in the NED may also have a similar effect. Comment 8: The proposed quota specifications are not consistent with the ICCAT provision that Contracting Parties shall minimize dead discards to the extent practicable. Allocating a disproportionate share of the BFT quota to the sector (pelagic longline) that causes the most discards is inconsistent with ICCAT mandates. The proposed quota specifications also ignore the obligations of the 1982 United Nations Convention on the Law of the Sea, the 1995 United Nations Fish Stocks Agreement, and the 1995 Food and Agriculture Organization Code of Conduct, which call for minimizing catch of non-target species. Response: The U.S. quota finalized in this action is consistent with ICCAT Recommendation 10–03, the MagnusonStevens Act, and ATCA. The U.S. pelagic longline fleet fishes directly for swordfish and Atlantic tunas such as yellowfin tuna and catches BFT incidentally. Dead discards are the result of domestic and international restrictions on the size of BFT that may be retained and requirements that certain amounts of target species (e.g., swordfish and other tunas) be landed in order to keep any BFT. If small BFT are caught, or if insufficient target species have been caught, BFT must be discarded, and some are discarded dead. The agency has historically implemented a series of management measures designed to regulate the incidental catch of BFT in non-directed Atlantic fisheries. Additionally, NMFS currently imposes a time and area closure for the month of June to prevent BFT longline interactions off the midAtlantic coast. As discussed above, NMFS recently finalized a rule requiring the use of weak hooks in the Gulf of Mexico pelagic longline fishery to minimize BFT interactions, is reinstating target catch requirements in the NED through this action, and also will consider options for further regulatory changes to reduce dead discards in the future. Regarding the 1982 United Nations Convention on the Law of the Sea, the 1995 United Nations Fish Stocks Agreement, and the 1995 Food and Agriculture Organization VerDate Mar<15>2010 16:57 Jul 01, 2011 Jkt 223001 Code of Conduct for Responsible Fisheries, NMFS does not consider this action to be inconsistent with those instruments. Comment 9: Under ATCA, NMFS is authorized to adopt regulations necessary and appropriate to carry out the purposes and objectives of ICCAT. NMFS has been violating ATCA by allowing a de facto ‘‘incidental catch’’ fishery in the Gulf of Mexico, in violation of the ICCAT recommendation to prohibit directed fishing targeting BFT in that area. Response: NMFS prohibits directed fishing for BFT in the Gulf of Mexico. However, some level of BFT catch is unavoidable during directed fishing for yellowfin tuna and swordfish. NMFS has historically implemented a series of management measures designed to regulate and limit the incidental catch of BFT in non-directed Atlantic fisheries. Comment 10: Allocating a disproportionate portion of the BFT quota to the Longline category, which catches BFT only as bycatch, violates National Standard 4, which prohibits discrimination in the allocation of fishing privileges. Response: National Standard 4 includes provisions that measures shall not discriminate between residents of different states and that allocations shall be fair and equitable to all fishermen. NMFS is allocating the baseline U.S. BFT quota consistent with the Consolidated HMS FMP allocation scheme. The action does not discriminate between residents of different states in the allocation of fishing privileges. It is important to note that the directed fishing categories currently do not have the same monitoring requirements as the pelagic longline fleet (e.g., for logbooks and observers) and that improvements in directed fishery data collection could result in changes to the dead discard estimate and to the future management of those fisheries. In the proposed 2011 quota specifications, NMFS’ goal was to balance the objectives of accounting for dead discards proactively, distributing fishing opportunities in a manner consistent with the Consolidated HMS FMP allocation scheme, and allowing continued operation of commercially valuable fisheries for swordfish and other tunas while controlling the landings of the incidental BFT catches. Through the final action, as described above, NMFS has used an approach that accounts for a portion of the dead discard estimate up front, holds a portion of the unharvested 2010 BFT quota that is allowed to be carried PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 forward to 2011 in the Reserve category for maximum flexibility for end-of-year accounting, and maintains directed fishing categories at their baseline quotas, which reflect application of the allocation scheme established in the Consolidated HMS FMP to the 2011 baseline U.S. BFT quota. Comment 11: Perpetuating BFT dead discards does not serve the primary values of the BFT resource—food production and recreational opportunities—and thus violates National Standard 5, which requires that conservation and management measures consider efficiency in the utilization of fishery resources. Response: NMFS considers efficiency in the utilization of the BFT resource across user groups, consistent with National Standard 5. To meet the multiple goals for the BFT fishery, NMFS considers the importance of all of the national standards when making fishery management decisions, including those intended to provide reasonable fishing opportunities to a wide range of users and gear types, coastwide, throughout the calendar year. Due to restrictions on size and retention limits, some amount of discards is inevitable and some amount of the BFT released are already dead or do not survive. Comment 12: Because the proposed rule did not propose that bycatch be avoided or reduced, it violates National Standard 9, which requires that conservation and management measures minimize bycatch. Response: The main purpose of the proposed rule was to implement the 2010–ICCAT recommended baseline U.S. BFT quota. The quota specifications were proposed to account for underharvest allowed to be carried forward to 2011 and to account for dead discards. The Consolidated HMS FMP and its implementing regulations minimize bycatch and bycatch mortality to the extent practicable in several ways. Most recently, on April 5, 2011, NMFS published a final rule to require weak hook use in the Gulf of Mexico pelagic longline fishery (76 FR 18653). That action and the action in this final rule to reinstate target catch requirements in the NED are part of the agency’s efforts to address bycatch issues and manage BFT catch and landings within available quotas. In addition, the accounting for half of the anticipated dead discards up front from the Longline category in this action may provide some incentive for pelagic longline fishermen to reduce those interactions that may result in dead discards. NMFS may identify additional measures to be taken in the E:\FR\FM\05JYR1.SGM 05JYR1 srobinson on DSK4SPTVN1PROD with RULES Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations future resulting from further management review. Comment 13: NMFS should account for dead discards as proposed. This approach is consistent with the method used for the last several years and would allow continued participation in the fishery by all user groups. The 8.1percent Longline category allocation established in the FMP was based only on historical landings, not catch (i.e., landings and discards). NMFS should continue to explore ways to convert dead discards to landings. Furthermore, NMFS should refer to dead discards as ‘‘regulatory discards’’ since it is domestic regulations that force pelagic longline fishermen to waste BFT bycatch. Response: From 2007 through 2010, NMFS deducted the estimate of dead discards up front, but directly from the Longline category. In those years, NMFS was able to follow this approach while also providing a landings quota for the Longline category because of large underharvests and the fact that ICCAT allowed an amount equal to half of the U.S. quota to be carried forward to the following year. At the time the proposed rule was prepared, NMFS determined that the same approach would be impracticable given the change in the amount of underharvest that could be carried forward to 2011 (i.e., from 50 percent of the U.S. quota to 10 percent, or from approximately 475 mt to 95 mt). NMFS considers the approach used for these final 2011 quota specifications to be a transitional approach from the method used over the past four fishing years. NMFS acknowledges the implications of the change in the ICCAT western BFT recommendation in 2006 for the pelagic longline fishery, and is attempting to balance the needs of the pelagic longline fleet to continue operations for the directed swordfish and Atlantic tunas fisheries with the needs of directed BFT fishery participants. Comment 14: The pelagic longline fleet is critical in providing domestic swordfish and Atlantic tunas product and catch data used in highly migratory species stock assessments, and has contributed to scientific sampling efforts. Curtailing longline effort based on BFT bycatch could result in the loss of U.S. swordfish quota (if not used) to other ICCAT Contracting Parties that do not use safe handling and release practices, consequently having negative impacts to sea turtles and mammals, as well as billfish. Response: NMFS acknowledges the role of the pelagic longline fishery in providing domestic fish products and important data for HMS stock VerDate Mar<15>2010 16:57 Jul 01, 2011 Jkt 223001 assessments, such as indices of abundance on the high seas. NMFS recognizes the conservation efforts of the U.S. longline fleet as well as the concerns about potential loss of quota to countries with less protective measures for protected species. Through these final specifications, NMFS is accounting for half of the estimated dead discards against the Longline category up front but also is providing half of the available underharvest to the Longline category to balance the need for continued directed longline operations for swordfish and Atlantic tunas with the need to account for dead discards within the U.S. BFT quota. Comment 15: Use of the 2009 pelagic longline dead discard estimate as a proxy for 2011 dead discards is inappropriate, in part because the estimate is nearly two years old, and in part because 2009 may have been an anomalous year for pelagic longline BFT catches. Response: Since the proposed rule was published, NMFS has received and is now using the 2010 dead discard estimate. NMFS considers the 2010 dead discard estimate to be the best information available. By maintaining a portion of the 2010 BFT underharvest (allowed to be carried to 2011) in the Reserve category rather than allocating that amount now, NMFS is maximizing its flexibility regarding accounting for total 2011 landings and dead discards. As the season progresses, NMFS will have more 2011 information to use in making inseason transfer decisions as well as more data on pelagic longline BFT interactions, including dead discards. Comment 16: In considering a proxy for the 2011 estimate, NMFS should calculate the anticipated reduction in dead discards from required use of weak hooks in the Gulf of Mexico. Response: NMFS agrees that the recent implementation of the weak hook requirement for pelagic longline vessels in the Gulf of Mexico should reduce BFT bycatch and dead discards in the Gulf of Mexico. However, because the weak hook requirement was not effective until May 5, 2011, mid-way through the BFT spawning season (April through June), NMFS currently lacks the data appropriate to make such calculations. This, combined with uncertainties regarding post-release mortality, makes it difficult to quantify now the effect of the weak hook requirement on incidental BFT catch in the Gulf of Mexico. Therefore, the 2010 dead discards estimate is the best available proxy at this time. NMFS will continue to examine this issue and take appropriate action to account for any PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 39025 reductions in dead discards that result from the weak hook rule implementation. Comment 17: The dead discard estimation methodology is unclear, and there are concerns that the extrapolation method may be amplifying the level of discards. Response: The United States applies the SCRS-approved methodology to calculate and report dead discards for both stock assessment purposes and quota compliance purposes. The amount of dead discards is generated by estimating discard rates from data collected by NMFS’ Pelagic Observer Program and extrapolating these estimates using the effort (number of hooks) reported in the Pelagic Logbooks. This methodology is applied within each time/area stratum (e.g., catch rates from the Gulf of Mexico are used to estimate discards from the Gulf of Mexico, not the NED). Estimates of dead discards from other gear types and fishing sectors that do not use the pelagic longline vessel logbook are unavailable at this time and thus are not included in this calculation. Changes to the approved method likely would require consideration and approval by the SCRS prior to U.S. implementation. Comment 18: It is not mandatory for NMFS to project and account for U.S. dead discards at the start of year. ICCAT requires accounting for 2011 landings and dead discards in 2012. Response: The ICCAT requirement is for countries to report total annual catch (landings and dead discards) in the year following the subject fishing year, i.e., report in the summer of 2012 the 2011 total. Since the change in the ICCAT recommendation to eliminate the dead discard allowance, NMFS has taken a precautionary approach in proactively deducting the estimate of dead discards up front when establishing the final quota specifications for each year. NMFS must also balance its obligation to provide reasonable opportunity to harvest the U.S. quota with the fact that the ICCAT western BFT recommendation includes a provision for reduction of a Contracting Party’s quota by 100 percent of the amount in excess of the quota and by 125 percent if overharvest occurs for a second year. As described above, in this final action, NMFS is taking the proactive measure of accounting for half of the estimated pelagic longline dead discards up front and deducting that portion of expected longline discards directly from the Longline category quota. Regardless of the specifications details in the final rule, the total 2011 U.S. BFT landings and pelagic longline dead discards will be accounted for and reported to ICCAT, E:\FR\FM\05JYR1.SGM 05JYR1 srobinson on DSK4SPTVN1PROD with RULES 39026 Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations and NMFS would make any ICCATrequired adjustments to future U.S. BFT quotas, if necessary. Comment 19: NMFS should find a way to account for at least some portion of the dead discard estimate using the 285 mt of 2010 underharvest that the United States is unable to carry forward under the current ICCAT BFT Recommendation. Response: In the 2010 BFT final quota specifications, NMFS deducted 172.8 mt (the 2008 dead discard estimate, used as a proxy for estimated 2010 dead discards) up front from the 2010 Longline category baseline quota. It would be inappropriate and inconsistent with the ICCAT BFT Recommendation to account for 2011 estimated dead discards with the amount of 2010 adjusted BFT quota that was unharvested and cannot be carried forward to 2011. Comment 20: The Massachusetts Division of Marine Fisheries commented that the proposed quota allocation (i.e., providing each quota category its FMP-based share of a quota that has been adjusted up front to account for anticipated dead discards in the pelagic longline fishery) attempts to maintain traditional FMP-based allocations without accounting for the changing nature of the BFT fisheries. The Purse Seine category, which has been allocated 18.6-percent of the U.S. quota, has not landed its full quota since 2003 and has had virtually no landings since 2005. Therefore, strict adherence to allocations based on the FMP-based allocations makes little sense, in the short-term, given the unlikelihood that this category will land its quota share. NMFS should use inseason management authority to temporarily reallocate unused quota to address discards. Response: Under the current quota regulations, NMFS is obligated, regardless of their recent inactivity, to make equal allocations of the available Purse Seine category BFT subquota among the Purse Seine category vessels that have requested their 2011 allocations. However, within a fishing year, NMFS may transfer quotas among categories using determination criteria based on consideration of the regulatory determination criteria regarding inseason adjustments and other relevant factors provided under § 635.27(a)(8), such as: The catches of the particular category quota to date and the likelihood of closure of that segment of the fishery if no adjustment is made; review of dealer reports, daily landing trends, and the availability of the BFT on the fishing grounds; the projected ability of the vessels fishing under the particular category quota to harvest the VerDate Mar<15>2010 16:57 Jul 01, 2011 Jkt 223001 additional amount of BFT before the end of the fishing year; and the effects of the adjustment on accomplishing the objectives of the fishery management plan. Thus, if the Purse Seine subquota is not used, NMFS has the option to transfer that quota allocation to other categories, if appropriate. Comment 21: The directed BFT fishery participants have successfully avoided dead discards and should not be adversely affected, through reduced quotas and fishing opportunities, in the process of accounting for dead discards for the incidental pelagic longline fishery. Response: Although NMFS recognizes that commercial fishermen and recreational anglers generally attempt to avoid discarding BFT, some amount of discards is inevitable due to restrictions on size and retention limits, and some amount of the BFT released are already dead or do not survive. As discussed above, the pelagic longline fishery is currently the only fishery for which sufficient data is collected to estimate dead discards. Data collection programs may need to be modified to provide more accurate dead discard estimates in the future. The topic of post-release mortality received substantial attention at the 2010 ICCAT meeting and NMFS anticipates that the issue will be a focus at the 2012 ICCAT meeting when the western BFT Recommendation is renegotiated. Regarding the potential impact of the proposed action on inseason BFT management, see response to Comment 5. Comment 22: All user groups have discards, some of which are dead, and NMFS should initiate or expand studies to examine dead discard and release mortality rates in the all fishing categories. We should have our own national estimates rather than becoming subject to estimates from other BFT fisheries that may not be comparable to U.S. BFT fisheries. Response: NMFS agrees that examination of dead discard and release mortality estimates rates in all fishing categories is warranted and will explore methods to account for this mortality in the near future. Comment 23: Transfers of U.S. quota to other ICCAT Contracting Parties should be out of the question, particularly since the United States may be quota limited in 2011. Transferring quota would decrease opportunities to U.S. fishermen and may have negative impacts on protected species. Response: The United States has not received any request for transfer of BFT quota from another ICCAT Contracting Party. At this point, NMFS is allocating fully the U.S. baseline and adjusted PO 00000 Frm 00066 Fmt 4700 Sfmt 4700 quotas, including to the Reserve category, for domestic management purposes. Although no transfers are anticipated at this time, if NMFS were later to consider a transfer of U.S. quota to another ICCAT Contracting Party, NMFS would publish a separate action in the Federal Register, which would provide the details of the proposed transaction, including factors such as the amount of quota to be transferred, the projected ability of U.S. vessels to harvest the total U.S. BFT quota before the end of the fishing year, the potential benefits of the transfer to U.S. fishing participants (such as access to the EEZ of the receiving Contracting Party for the harvest of a designated amount of BFT), potential ecological impacts, and the Contracting Party’s ICCAT compliance status. Additional NEPA analysis would be prepared, as appropriate, to analyze any additional action. C. Reinstatement of Target Catch Requirements in the NED Comment 24: NMFS should implement target catch requirements for pelagic longline vessels fishing in the NED. Limiting the number of BFT that may be retained and landed would serve as a disincentive to target BFT or to fish in areas where interactions could be high. Response: NMFS agrees and is reinstating target catch requirements in the NED in this final rule. Comment 25: NMFS should not implement the target catch requirements that apply coastwide for pelagic longline vessels within the NED. The 25-mt quota that ICCAT allocated for bycatch during pelagic longline fishing in the vicinity of the management area boundary was intended to be managed and accounted for distinctly from the U.S. share of the western BFT TAC. Pelagic longline vessels do not target BFT; there are sets on swordfish where the bycatch of BFT cannot be avoided. Furthermore, 2009 was an anomaly with regard to BFT landings in the NED, which generally have been under 10 mt annually. Implementing the target catch requirements that apply coastwide could have the unintended result of increasing BFT dead discards. NMFS should instead consider multi-year accounting for NED landings or a higher trip limit, such as 10 fish. Response: NMFS must implement ICCAT management measures as they are presented in the formal ICCAT recommendations, including the western BFT recommendation. NMFS acknowledges that the 2009 level of BFT interactions in the NED may have been abnormally high and that the pelagic longline fleet is not targeting BFT. E:\FR\FM\05JYR1.SGM 05JYR1 Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations Nonetheless, NMFS maintains that reinstating target catch requirements in the NED may serve as a disincentive for a vessel owner or operator to fish in areas where BFT interactions could be high, or to extend a fishing trip in order to retain additional BFT. NMFS expects that implementing the same target catch requirements in all areas will decrease the likelihood that the Longline category quota is harvested prematurely, which could have economic impacts particularly on those vessels that do not fish in the NED. It also would be consistent with ongoing agency efforts to better align pelagic longline catch with Consolidated HMS FMP objectives and quota allocations. srobinson on DSK4SPTVN1PROD with RULES D. Allowing Removal of Atlantic Tunas Tail Lobes Comment 26: Allowing for Atlantic tuna tails to be trimmed as NMFS proposed is an easy, common-sense measure that will make handling and storage of tunas in fish holds more efficient. Response: NMFS’ proposal to allow removal of the upper and lower lobes of the tail was intended to balance the need to preserve the sole method for measuring Atlantic tunas, i.e., Curved Fork Length, which is taken by measuring to the fork of the tail, with the need for both commercial and recreational participants to store these fish as efficiently as possible. Therefore, NMFS is finalizing the measure as proposed. Comment 27: It is important that vessels be able to properly store the fish to preserve fish quality, and trimming the lobes would not help for giant BFT that may not fit in the hold. NMFS should allow the tail to be cut but require that the skin be left intact. The tail could then be folded for slushing purposes but be folded back to allow for a proper measurement. Response: NMFS acknowledges the importance to properly store fish to preserve their quality and also recognizes that allowing the removal of the upper and lower tail lobes may not assist storage in all instances, especially for giant BFT. However, to facilitate enforcement of size limits and to preserve the sole method for measuring Atlantic tunas, NMFS has opted not to allow the tail to be cut prior to being offloaded at this point in time. E. Clarification of Atlantic Tunas Transfer at Sea Comment 28: The proposed clarification is necessary to close a regulatory loophole. NMFS should further clarify that transfer includes VerDate Mar<15>2010 16:57 Jul 01, 2011 Jkt 223001 moving a tuna from fishing or other gear in the water from one vessel to another. Response: NMFS agrees with this comment and has clarified the regulatory text accordingly. The intent of this clarification is to ensure that fishermen are informed that transferring Atlantic tunas at sea, either by transferring the actual fish, or by transferring fish that remain in water, is prohibited. This also includes moving an Atlantic tuna using some sort of other gear, e.g., using a poly ball to transfer a fish. Comment 29: NMFS should not overburden itself with further regulations like this that are very difficult to enforce. Response: NMFS acknowledges that some regulations may be more difficult to enforce than others. However, this change in the regulations is intended to clarify, and enhance the enforceability of, existing regulations controlling effort, including daily retention limits. These effort controls are vital to ensuring all fishery participants have a reasonable opportunity to harvest Atlantic tunas regardless of their geographic or temporal engagement with the fishery. This clarification is also intended to preserve the allocation percentages, both within and across the various quota categories, by constraining landings to individual category quotas. As this change does not impose a new requirement, but merely clarifies and enhances the enforceability of existing regulations, NMFS does not consider it overly burdensome. F. Other Issues NMFS received comments on the issues outlined under the eight subheadings below. These suggestions are beyond the scope of this rulemaking. However, in light of the issues involving U.S. quotas and domestic allocations, pelagic longline dead discards, the need to account for dead discards that result from fishing with other gears, and bycatch reduction objectives, as well as public comment, NMFS intends to undertake a comprehensive review of BFT management in the near future to determine whether existing management measures need to be adjusted to meet the multiple goals for the BFT fishery. (1) Bycatch of BFT NMFS received comments requesting implementation of various actions to address pelagic longline BFT bycatch, including: establish bycatch caps or other incentives to reduce bycatch, such as those based on U.S. northeast species management (e.g., closure of directed fishery when a ‘‘choke species’’ limit is PO 00000 Frm 00067 Fmt 4700 Sfmt 4700 39027 met) or Canadian highly migratory species management (e.g., exclusion zones and quota transfers); establish time/area closures in the Gulf of Mexico; implement dynamic area management; expand the weak hook requirement beyond the Gulf of Mexico (although many expressed this step would not be effective or appropriate); require the fleet to use buoy gear or greensticks in the Gulf of Mexico; increase observer coverage and/or realtime monitoring of landings and dead discards, including via VMS; prohibit retention of BFT for sale by pelagic longline vessels; change the FMP allocation to reflect both landings and dead discards; change the allocation scheme to one that promotes fishing with selective fishing gears; adjust the minimum size for BFT retention and implement other regulatory changes that would allow conversion of BFT dead discards to landings, including in the NED. The Massachusetts Division of Marine Fisheries commented that allocation schemes that result in the failure of U.S. fishermen to land the U.S. quota while discarding dead BFT will negatively impact domestic interests in the future. Several commenters recognize the challenge of maximizing swordfish quota utilization with minimizing BFT discards. Many commenters expressed concern that without a bycatch cap and with expected BFT stock growth, pelagic longline BFT interactions would increase. Dead discards could grow without limit, potentially representing a majority of the U.S quota, thereby compromising the directed fisheries. (2) Permit Issues NMFS received comment that, as the BFT quota is small, NMFS should change all BFT permits from open access to limited access. Regarding swordfish revitalization, NMFS received comment that implementation of an HMS handgear permit would help increase swordfish quota utilization by gears more selective than pelagic longline, thus reducing potential BFT bycatch and dead discards. (3) Inseason Quota Transfers NMFS received numerous comments that it should use ‘‘inseason quota transfers’’ that were actually recommendations to reallocate quota in a matter inconsistent with the Consolidated HMS FMP. (4) Recreational Fishery Monitoring NMFS received comments that recreational landings must be tracked in a more timely fashion. Programs like the Massachusetts landing census pilot E:\FR\FM\05JYR1.SGM 05JYR1 39028 Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations program, currently under development, should be implemented in all states as soon as possible. (5) ICCAT Negotiations NMFS received comments that the U.S. delegation should further consider domestic BFT fishery needs (for all HMS fisheries) when setting the U.S. position at ICCAT, that the U.S. delegation should renegotiate the BFT Recommendation, including quotas and the amount of underharvest allowed to be carried forward from one year to the next, should pursue two-year balancing periods for the base quota and NED allocation, and, wherever possible, maximize its ability to fully use the quota over a given period. (6) Consideration of Petition to List BFT as Threatened or Endangered NMFS received comments that the current management system, which allows a substantial portion of the U.S. quota to be discarded dead, contradicts agency consideration of the petition to list BFT as threatened or endangered under the Endangered Species Act. (7) BFT Boycott NMFS received a petition from the Center for Biological Diversity, with the names of more than 22,000 people who have pledged not to eat Atlantic and Southern BFT (fished around Australia) and to boycott restaurants with BFT on the menu in order to reduce consumer demand for and conserve both species. The Center for Biological Diversity launched the boycott following the November 2010 ICCAT meeting. (8) November 2009 BFT Regulatory Amendment The North Carolina Division of Marine Fisheries encourages NMFS to (1) implement the 2009 proposed BFT management measure that would allow the General category season to extend past January 31 if January General category subquota remains available, and (2) establish a separate subquota for the months of February and March, potentially assigning unused prior year quota to that period. This would allow for greater utilization of available U.S. BFT quota. srobinson on DSK4SPTVN1PROD with RULES Classification The Assistant Administrator for Fisheries, NMFS, has determined that this final action is consistent with the Magnuson-Stevens Act, ATCA, and other applicable law, and is necessary to achieve domestic management objectives under the Consolidated HMS FMP. VerDate Mar<15>2010 16:57 Jul 01, 2011 Jkt 223001 There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date for the BFT quotas and 2011 BFT quota specifications in this action, because delaying this rule’s effectiveness is both impracticable and unnecessary. ICCAT Recommendation 10–03 entered into force on June 14, 2011, and the United States at the November 2010 meeting of ICCAT agreed to establish the baseline annual U.S. quota of 923.7 mt by that date. Because the recommended effective date has already passed, it is critical that the quota be implemented immediately upon publication of the final rule, in order that NMFS and the United States comply with our international obligations. Furthermore, without the waiver for the 30-day delayed effectiveness period, the codified baseline annual U.S. BFT quota of 952.4 mt and related subquotas (allocated per quota allocations established in the Consolidated HMS FMP) would remain in effect, and thus the required reduction in quota would not be implemented for BFT, which has recently been listed as a species of concern. Delaying the effective date is also unnecessary. This rule does not add or modify any regulatory requirements for the affected entities. Because the entities affected by this rule need not undertake any modifications to their property or practices in order to come into compliance with this rule, it is unnecessary to delay this rule’s effectiveness to allow entities to modify their practices to come into compliance with the rule. This final rule has been determined to be not significant for purposes of Executive Order 12866. In compliance with section 604 of the Regulatory Flexibility Act (RFA), a Final Regulatory Flexibility Analysis (FRFA) was prepared for this rule. The FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, and NMFS responses to those comments, and a summary of the analyses completed to support the action. The full FRFA and analysis of economic and ecological impacts are available from NMFS (see ADDRESSES). A summary of the FRFA follows. In compliance with section 604(a)(1) of the RFA, the purpose of this rulemaking, consistent with the Consolidated HMS FMP objectives, the Magnuson-Stevens Act, and other applicable law, is to implement and allocate the ICCAT-recommended U.S. quota for 2011 and 2012; adjust the 2011 U.S. quota and subquotas to account for unharvested 2010 quota allowed by PO 00000 Frm 00068 Fmt 4700 Sfmt 4700 ICCAT to be carried forward to 2011, and to account for a portion of the estimated 2011 dead discards up front; reinstate pelagic longline target catch requirements for retaining BFT in the Northeast Distant Gear Restricted Area; amend the Atlantic tunas possession-atsea and landing regulations to allow removal of tail lobes; and clarify the transfer-at-sea regulations for Atlantic tunas. Section 604(a)(2) of the RFA requires agencies to summarize significant issues raised by the public in response to the IRFA, the agency’s assessment of such issues, and a statement of any changes made as a result of the comments. NMFS received numerous comments on the proposed rule (75 FR 13582, March 14, 2011) during the comment period. A summary of these comments and NMFS’ responses are included in Chapter 14 of the EA/RIR/FRFA and are included above. Although NMFS did not receive comment specifically on the IRFA, NMFS received some comments expressing concern about the economic impact of the 2011 BFT quota specifications, as proposed. Several commenters stated that the proposed deduction of the dead discard estimate from the U.S. BFT baseline quota would result in a de facto reallocation of quota shares from those established in the Consolidated HMS FMP, which would be economically damaging to the directed fisheries. As described above, following consideration of public comment and the availability of updated (2010) dead discard estimates, NMFS has decided to account for one half of the dead discard estimate up front and directly against the Longline category quota, through the specifications process, which will mitigate some of the economic impacts associated with adjusting the baseline quota for dead discards. For the final 2011 quota specifications, this rule maintains the directed categories at their baseline quotas, which reflect application of the allocation scheme established in the Consolidated HMS FMP to the 2011 baseline U.S. BFT quota. For the Longline category, NMFS deducts half of the 2010 dead discard estimate of 122.3 mt from the 2011 baseline Longline quota and applies half of the underharvest allowed to be carried forward to 2011 (i.e., 74.8 ¥ 61.2 + 47.5 = 61.1 mt). This resulting 61.1 mt quota for the Longline category does not include the 25-mt allocation for the NED. NMFS holds the remainder of the 2010 underharvest allowed to be carried forward to 2011 (47.4 mt) within the Reserve category, for an adjusted Reserve category quota of 70.5 mt. NMFS intends to maintain this E:\FR\FM\05JYR1.SGM 05JYR1 srobinson on DSK4SPTVN1PROD with RULES Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations underharvest in the Reserve category until later in the fishing year for maximum flexibility in accounting for 2011 landings and dead discards. Section 604(a)(3) of the RFA requires agencies to provide an estimate of the number of small entities to which the rule would apply. The implementation of the ICCAT-recommended baseline annual U.S. BFT quota would apply to all participants in the Atlantic BFT fisheries, all of which are considered small entities by the Small Business Administration, because they either had average annual receipts less than $4.0 million for fish-harvesting, average annual receipts less than $6.5 million for charter/party boats, 100 or fewer employees for wholesale dealers, or 500 or fewer employees for seafood processors. As shown in Table 5, there are over 32,000 vessels that held an Atlantic HMS Charter/Headboat, Atlantic HMS Angling, or an Atlantic tunas permit as of October 2010. These permitted vessels consist of commercial, recreational, and charter vessels as well as headboats. Reinstatement of target catch requirements in the NED would affect those Longline category permitted vessels that fish in the NED. As shown in Table 9, over the last 5 years, an annual total ranging from 6 to 10 vessels have reported trips in the NED and an annual total ranging from 4 to 8 vessels have landed BFT from the NED. However, to the extent that this action could avoid the need for fishery interruption due to insufficient BFT quota availability, it could affect all 248 Longline category permitted vessels. Clarification of the Atlantic tunas landing-form and transfer-at-sea regulations would be informative to owners and operators of Atlantic-tunas permitted vessels and Atlantic HMSpermitted vessels fishing for tunas, although material impacts are not expected to occur from the related changes in this action. Under section 604(a)(4) of the RFA, agencies are required to describe any new reporting, record-keeping and other compliance requirements. The action does not contain any new collection of information, reporting, record keeping, or other compliance requirements. Under section 604(a)(5) of the RFA, agencies are required to describe any alternatives to the rule which accomplish the stated objectives and which minimize any significant economic impacts. These impacts are discussed below and in Chapters 4 and 6 of the EA/RIR/FRFA. Additionally, the RFA (5 U.S.C. 603(c)(1)–(4)) lists four general categories of ‘‘significant’’ alternatives that would assist an agency VerDate Mar<15>2010 19:17 Jul 01, 2011 Jkt 223001 in the development of significant alternatives. These categories of alternatives are: (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 for small entities. In order to meet the objectives of this rule, consistent with the MagnusonStevens Act, ATCA, and the ESA, NMFS cannot establish differing compliance requirements for small entities or exempt small entities from compliance requirements. Thus, there are no alternatives discussed that fall under the first and fourth categories described above. NMFS does not know of any performance or design standards that would satisfy the aforementioned objectives of this rulemaking while, concurrently, complying with the Magnuson-Stevens Act. As described below, NMFS analyzed several different alternatives in this rulemaking and provides rationale for identifying the preferred alternatives to achieve the desired objective. The FRFA assumes that each vessel within a category will have similar catch and gross revenues to show the relative impact of the action on vessels. NMFS has estimated the average impact that the alternative to establish the 2011 and 2012 BFT quota for all domestic fishing categories would have on individual categories and the vessels within those categories. As mentioned above, the 2010 ICCAT recommendation reduced the U.S. baseline BFT quota for 2011 and 2012 to 923.7 mt and provides 25 mt for incidental catch of BFT related to directed longline fisheries in the NED. This action would distribute the baseline quota of 923.7 mt to the domestic fishing categories based on the allocation percentages established in the Consolidated HMS FMP. In 2010, the annual gross revenues from the commercial BFT fishery were approximately $8.9 million. As of October 2010, there were 8,311 vessels permitted to land and sell BFT under four commercial BFT quota categories (including HMS Charter/Headboat vessels). The commercial categories and their 2010 gross revenues are General ($7.8 million), Harpoon ($202,643), Purse Seine ($0), and Longline ($878,908). For the allocation of BFT quota among domestic fishing categories, NMFS analyzed a no action alternative and Alternative A2 (preferred alternative) PO 00000 Frm 00069 Fmt 4700 Sfmt 4700 39029 which would implement the 2010 ICCAT recommendation. NMFS considered a third alternative (A3) that would have allocated the 2010 ICCAT recommendation in a manner other than that designated in the Consolidated HMS FMP. Alternative A3 would result in quota reallocation among categories. The Consolidated HMS FMP addressed several aspects of the changing BFT fishery and included modification to time period subquotas and authorized gear for use in BFT fisheries, among other things. Further consideration of the information provided by the 2010 BFT stock assessment, international deliberations during and after the 2010 ICCAT meeting, and observed changes in the fishery (e.g., relative year class strength and fish availability) may provide further insight into the larger fishery issues raised by this alternative, and could result in future regulatory or FMP amendments. For the purpose of this analysis, modifications to domestic management of BFT outside the limitations of the Consolidated HMS FMP and current ICCAT recommendations do not satisfy the purpose and need for the action. Additionally, preparation of an FMP amendment would not be possible in the brief period of time between receipt of the ICCAT recommendation, which occurred in late November 2010, and the start of the 2011 fishing year, the bulk of which begins in June. Therefore, Alternative A3 was considered but not analyzed. But, if an FMP amendment were feasible, positive economic impacts would be expected to result on average for vessels in any permit categories that would receive a greater share than established currently in the FMP, and negative economic impacts would be expected to result on average for vessels in permit categories that would receive a lesser share than established in the FMP. Impacts per vessel would depend on the temporal and spatial availability of BFT to participants. As noted above, Alternative A2 would implement the 2010 ICCAT recommendation in accordance with the Consolidated HMS FMP and consistent with ATCA, under which the United States is obligated to implement ICCATapproved quota recommendations, as necessary and appropriate. The preferred alternative would implement this quota and have slightly positive impacts for fishermen. The no action alternative would keep the quota at pre2010 ICCAT recommendation levels (approximately 29 mt more) and would not be consistent with the purpose and need for this action, the Consolidated HMS FMP, and ATCA. The economic E:\FR\FM\05JYR1.SGM 05JYR1 srobinson on DSK4SPTVN1PROD with RULES 39030 Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations impacts to the United States and to local economies would be similar in distribution and scale to 2010 (e.g., annual commercial gross revenues of approximately $8.9 million, as described above), or recent prior years, and would provide fishermen additional fishing opportunities, subject to the availability of BFT to the fishery, in the short term. In the long term, however, stock growth may be hindered and negative impacts would result. It is difficult to estimate average potential ex-vessel revenues to commercial participants, largely because revenues depend heavily on the availability of large medium and giant BFT to the fishery. Section 6 of the EA/ RIR/FRFA describes potential revenue losses per commercial quota category based on each category’s baseline quota reduction and price-per-pound information from 2010 (i.e., $206,251 for the General category, $13,944 for the Harpoon category, $25,150 for the Longline category, and $1,093 for the Trap category); although the Purse Seine category had no BFT landings in 2010, potential revenue losses of $69,639 were estimated. As described in Section 4 of the EA/RIR/FRFA, because the directed commercial categories have underharvested their subquotas in recent years, particularly 2004–2008, the potential decreases in ex-vessel revenues above overestimate the likely actual economic impacts to those categories relative to recent conditions. Additionally, there has been substantial interannual variability in ex-vessel revenues per category in recent years due to recent changes in BFT availability and other factors. Generally, the interannual differences in ex-vessel revenues per category have been larger than the potential impacts described above. Data on net revenues of individual fishermen are lacking, so the economic impact of the alternatives is averaged across each category. This is an appropriate approach for BFT fisheries, in particular because available landings data (weight and ex-vessel value of the fish in price-per-pound) allow NMFS to calculate the gross revenue earned by a fishery participant on a successful trip. The available data do not, however, allow NMFS to calculate the effort and cost associated with each successful trip (e.g., the cost of gas, bait, ice, etc.) so net revenue for each participant cannot be calculated. As a result, NMFS analyzes the average impact of the alternatives among all participants in each category. Success rates vary widely across participants in each category (due to extent of vessel effort and availability of commercial-sized BFT to participants VerDate Mar<15>2010 16:57 Jul 01, 2011 Jkt 223001 where they fish) but for the sake of estimating potential revenue loss per vessel, category-wide revenue losses can be divided by the number of permitted vessels in each category (see Table 5). Because HMS Charter/Headboat vessels may fish commercially under the General category quota and retention limits, Charter/Headboat permitted vessels are considered along with General category vessels when estimating potential General category ex-vessel revenue changes. Potential exvessel revenue losses (per vessel) as a result of this rule’s implementation are estimated as follows: General category (including HMS Charter/Headboat vessels): $26; Harpoon category: $480; Longline category (incidental): $101; Trap category (incidental): $182; and Purse Seine category: $13,928. Section 6 describes potential revenue losses per commercial quota category based on each category not having access to quota that would be available through the carrying forward of 2010 underharvest, were it not for the ICCAT recommendation that limits the amount of underharvest that may be carried forward to 10 percent of a Contracting Party’s total quota beginning effective for 2011. Potential ex-vessel revenue losses (per vessel) resulting from this change are estimated as follows: General category (including HMS Charter/ Headboat vessels): $107; Harpoon category: $4,808; Longline category (incidental): $1,014; Trap category (incidental): $519; and Purse Seine category: $139,278. These values likely overestimate potential revenue losses for vessels that actively fish and are successful in landing at least one BFT. The reinstatement of target catch requirements for pelagic longline vessels in the NED could, as described in Section 6.6.2, would result in a potential loss to the Longline category fishery of $341,228. If this reduction is calculated for the universe of vessels participating in the NED over the last 5 years (range of 6–10 vessels), it would represent average potential ex-vessel reductions of $34,123–$56,871 per vessel. If the reduction is calculated across Longline category vessels, it would be $1,376 per vessel. In Section 6.6.2, acknowledging that the 2009 number of BFT taken in the NED in 2009 may have been anomalous, NMFS also provided a figure for potential revenue loss of $42,408. This would represent average potential ex-vessel reductions of $4,241–$7,068 per vessel. If the reduction is calculated across Longline category vessels, it would be $171 per vessel. However, the preferred alternative is expected to result in the most positive PO 00000 Frm 00070 Fmt 4700 Sfmt 4700 short and long-term economic impacts for the majority of BFT fishery participants, including Longline category participants, as it would increase the likelihood that the Longline category quota will be available through the end of the year, without interruption, and decrease the potential need for reallocation from directed quota categories or quota reductions in subsequent years to cover Longline category excesses. The other considered alternative was a no action alternative (maintaining the de facto exemption from target catch requirements for pelagic longline vessels fishing in the NED). The no action alternative risks exceeding the available Longline category quota, particularly in years where availability of commercial-sized BFT is high in the NED during directed pelagic longline activity for target species. The modifications to the regulations concerning Atlantic tunas possession at sea and landing and Atlantic tunas transfer at sea are intended to facilitate Atlantic tunas storage and provide clarification, respectively. While these changes would apply to all vessels holding Atlantic tunas, HMS Charter/ Headboat, and HMS Angling category permits (totaling approximately 33,000 vessels), they are not expected to have significant economic impacts. Therefore, NMFS has not analyzed alternatives beyond the preferred alternatives and no action. Specific estimates of economic impacts of these preferred alternatives are not quantifiable. Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as ‘‘small entity compliance guides.’’ The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, NMFS has prepared a brochure summarizing fishery information and regulations for Atlantic tuna fisheries for 2011. This brochure also serves as the small entity compliance guide. Copies of the compliance guide are available from NMFS (see ADDRESSES). List of Subjects in 50 CFR Part 635 Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties. E:\FR\FM\05JYR1.SGM 05JYR1 Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations Dated: June 29, 2011. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 635 is amended as follows: PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES 1. The authority citation for part 635 continues to read as follows: ■ Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq. § 635.23 ■ [Amended] 2. In § 635.23, remove paragraph (f)(3). 3. In § 635.27, paragraphs (a) introductory text, (a)(1)(i), (a)(2), (a)(3), (a)(4)(i), (a)(5), (a)(7)(i), and (a)(7)(ii) are revised to read as follows: ■ srobinson on DSK4SPTVN1PROD with RULES § 635.27 Quotas. (a) BFT. Consistent with ICCAT recommendations, and with paragraph (a)(10)(iv) of this section, NMFS may subtract the most recent, complete, and available estimate of dead discards from the annual U.S. BFT quota, and make the remainder available to be retained, possessed, or landed by persons and vessels subject to U.S. jurisdiction. The remaining baseline annual U.S. BFT quota will be allocated among the General, Angling, Harpoon, Purse Seine, Longline, Trap, and Reserve categories. BFT may be taken by persons aboard vessels issued Atlantic Tunas permits, HMS Angling permits, or HMS Charter/ Headboat permits. The baseline annual U.S. BFT quota is 923.7 mt, not including an additional annual 25 mt allocation provided in paragraph (a)(3) of this section. The baseline annual U.S. BFT quota is divided among the categories as follows: General—47.1 percent (435.1 mt); Angling—19.7 percent (182.0 mt), which includes the school BFT held in reserve as described under paragraph (a)(7)(ii) of this section; Harpoon—3.9 percent (36.0 mt); Purse Seine—18.6 percent (171.8 mt); Longline—8.1 percent (74.8 mt), which does not include the additional annual 25 mt allocation provided in paragraph (a)(3) of this section; and Trap—0.1 percent (0.9 mt). The remaining 2.5 percent (23.1 mt) of the baseline annual U.S. BFT quota will be held in reserve for inseason or annual adjustments based on the criteria in paragraph (a)(8) of this section. NMFS may apportion a quota allocated to any category to specified fishing periods or to geographic areas and will make annual adjustments to quotas, as specified in VerDate Mar<15>2010 16:57 Jul 01, 2011 Jkt 223001 paragraph (a)(10) of this section. BFT quotas are specified in whole weight. (1) * * * (i) Catches from vessels for which General category Atlantic Tunas permits have been issued and certain catches from vessels for which an HMS Charter/ Headboat permit has been issued are counted against the General category quota in accordance with § 635.23(c)(3). The amount of large medium and giant BFT that may be caught, retained, possessed, landed, or sold under the General category quota is 47.1 percent (435.1 mt) of the baseline annual U.S. BFT quota, and is apportioned as follows: (A) January 1 through January 31—5.3 percent (23.1 mt); (B) June 1 through August 31—50 percent (217.6 mt); (C) September 1 through September 30—26.5 percent (115.3 mt); (D) October 1 through November 30— 13 percent (56.6 mt); and (E) December 1 through December 31—5.2 percent (22.6 mt). * * * * * (2) Angling category quota. In accordance with the framework procedures of the Consolidated HMS FMP, prior to each fishing year, or as early as feasible, NMFS will establish the Angling category daily retention limits. The total amount of BFT that may be caught, retained, possessed, and landed by anglers aboard vessels for which an HMS Angling permit or an HMS Charter/Headboat permit has been issued is 19.7 percent (182 mt) of the baseline annual U.S. BFT quota. No more than 2.3 percent (4.2 mt) of the annual Angling category quota may be large medium or giant BFT. In addition, over each 2-consecutive-year period (starting in 2011, inclusive), no more than 10 percent of the annual U.S. BFT quota, inclusive of the allocation specified in paragraph (a)(3) of this section, may be school BFT. The Angling category quota includes the amount of school BFT held in reserve under paragraph (a)(7)(ii) of this section. The size class subquotas for BFT are further subdivided as follows: (i) After adjustment for the school BFT quota held in reserve (under paragraph (a)(7)(ii) of this section), 52.8 percent (40.8 mt) of the school BFT Angling category quota may be caught, retained, possessed, or landed south of 39°18′ N. lat. The remaining school BFT Angling category quota (36.5 mt) may be caught, retained, possessed or landed north of 39°18′ N. lat. (ii) An amount equal to 52.8 percent (43.8 mt) of the large school/small medium BFT Angling category quota PO 00000 Frm 00071 Fmt 4700 Sfmt 4700 39031 may be caught, retained, possessed, or landed south of 39°18′ N. lat. The remaining large school/small medium BFT Angling category quota (39.1 mt) may be caught, retained, possessed or landed north of 39°18′ N. lat. (iii) An amount equal to 66.7 percent (2.8 mt) of the large medium and giant BFT Angling category quota may be caught, retained, possessed, or landed south of 39°18′ N. lat. The remaining large medium and giant BFT Angling category quota (1.4 mt) may be caught, retained, possessed or landed north of 39°18′ N. lat. (3) Longline category quota. The total amount of large medium and giant BFT that may be caught incidentally and retained, possessed, or landed by vessels that possess Longline category Atlantic Tunas permits is 8.1 percent (74.8 mt) of the baseline annual U.S. BFT quota. No more than 60.0 percent (44.9 mt) of the Longline category quota may be allocated for landing in the area south of 31°00′ N. lat. In addition, 25 mt shall be allocated for incidental catch by pelagic longline vessels fishing in the Northeast Distant gear restricted area. (4) * * * (i) The total amount of large medium and giant BFT that may be caught, retained, possessed, or landed by vessels that possess Purse Seine category Atlantic Tunas permits is 18.6 percent (171.8 mt) of the baseline annual U.S. BFT quota. The directed purse seine fishery for BFT commences on July 15 of each year unless NMFS takes action to delay the season start date. Based on cumulative and projected landings in other commercial fishing categories, and the potential for gear conflicts on the fishing grounds or market impacts due to oversupply, NMFS may delay the BFT purse seine season start date from July 15 to no later than August 15 by filing an adjustment with the Office of the Federal Register prior to July 1. The Purse Seine category fishery closes on December 31 of each year. * * * * * (5) Harpoon category quota. The total amount of large medium and giant BFT that may be caught, retained, possessed, landed, or sold by vessels that possess Harpoon category Atlantic Tunas permits is 3.9 percent (36.0 mt) of the baseline annual U.S. BFT quota. The Harpoon category fishery commences on June 1 of each year, and closes on November 15 of each year. * * * * * (7) * * * (i) The total amount of BFT that is held in reserve for inseason or annual adjustments and fishery-independent E:\FR\FM\05JYR1.SGM 05JYR1 39032 Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations srobinson on DSK4SPTVN1PROD with RULES research using quotas or subquotas is 2.5 percent (23.1 mt) of the baseline annual U.S. BFT quota. Consistent with paragraph (a)(8) of this section, NMFS may allocate any portion of this reserve for inseason or annual adjustments to any category quota in the fishery. (ii) The total amount of school BFT that is held in reserve for inseason or annual adjustments and fisheryindependent research is 18.5 percent (17.6 mt) of the total school BFT Angling category quota as described under paragraph (a)(2) of this section. This amount is in addition to the amounts specified in paragraph (a)(7)(i) of this section. Consistent with paragraph (a)(8) of this section, NMFS may allocate any portion of the school BFT Angling category quota held in reserve for inseason or annual adjustments to the Angling category. * * * * * ■ 4. In § 635.29, paragraph (a) is revised to read as follows: VerDate Mar<15>2010 16:57 Jul 01, 2011 Jkt 223001 § 635.29 Transfer at sea. (a) Persons may not transfer an Atlantic tuna, blue marlin, white marlin, roundscale spearfish, or swordfish at sea in the Atlantic Ocean, regardless of where the fish was harvested. Notwithstanding the definition of ‘‘harvest’’ at § 600.10, for the purposes of this part, transfer includes, but is not limited to, moving or attempting to move an Atlantic tuna that is on fishing or other gear in the water from one vessel to another vessel. However, an owner or operator of a vessel for which a Purse Seine category Atlantic Tunas category permit has been issued under § 635.4 may transfer large medium and giant BFT at sea from the net of the catching vessel to another vessel for which a Purse Seine category Atlantic Tunas permit has been issued, provided the amount transferred does not cause the receiving vessel to exceed its currently authorized vessel PO 00000 Frm 00072 Fmt 4700 Sfmt 9990 allocation, including incidental catch limits. * * * * * 5. In § 635.30, paragraph (a) is revised to read as follows: ■ § 635.30 Possession at sea and landing. (a) Atlantic tunas. Persons that own or operate a fishing vessel that possesses an Atlantic tuna in the Atlantic Ocean or that lands an Atlantic tuna in an Atlantic coastal port must maintain such Atlantic tuna through offloading either in round form or eviscerated with the head and fins removed, provided one pectoral fin and the tail remain attached. The upper and lower lobes of the tuna tail may be removed for storage purposes as long as the fork of the tail remains intact. * * * * * [FR Doc. 2011–16769 Filed 6–30–11; 11:15 am] BILLING CODE 3510–22–P E:\FR\FM\05JYR1.SGM 05JYR1

Agencies

[Federal Register Volume 76, Number 128 (Tuesday, July 5, 2011)]
[Rules and Regulations]
[Pages 39019-39032]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16769]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 110210132-1275-02]
RIN 0648-BA65


Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Quotas 
and Atlantic Tuna Fisheries Management Measures

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

ACTION: Final rule.

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SUMMARY: NMFS is modifying Atlantic bluefin tuna (BFT) base quotas for 
all domestic fishing categories; establishing BFT quota specifications 
for the 2011 fishing year; reinstating pelagic longline target catch 
requirements for retaining BFT in the Northeast Distant Gear Restricted 
Area (NED); amending the Atlantic tunas possession-at-sea and landing 
regulations to allow removal of Atlantic tunas tail lobes; and 
clarifying the transfer-at-sea regulations for Atlantic tunas. This 
action is necessary to implement recommendations of the International 
Commission for the Conservation of Atlantic Tunas (ICCAT), as required 
by the Atlantic Tunas Convention Act (ATCA), and to achieve domestic 
management objectives under the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act).

DATES: The amendments to Sec.  635.27 are effective July 5, 2011. The 
2011 quota specifications are effective July 5, 2011 through December 
31, 2011. The amendments to Sec. Sec.  635.23, 635.29, and 635.30 are 
effective August 4, 2011.

ADDRESSES: Supporting documents, including the Environmental 
Assessment, Regulatory Impact Review, and Final Regulatory Flexibility 
Analysis (EA/RIR/FRFA), are available from Sarah McLaughlin, Highly 
Migratory Species (HMS) Management Division, Office of Sustainable 
Fisheries (F/SF1), NMFS, 55 Great Republic Drive, Gloucester, MA 01930. 
These documents and others, such as the Fishery Management Plans 
described below, also may be downloaded from the HMS Web site at https://www.nmfs.noaa.gov/sfa/hms/.

FOR FURTHER INFORMATION CONTACT: Sarah McLaughlin or Brad McHale, 978-
281-9260.

SUPPLEMENTARY INFORMATION: Atlantic bluefin tuna, bigeye tuna, albacore 
tuna, yellowfin tuna, and skipjack tuna (hereafter referred to as 
``Atlantic tunas'') are managed under the dual authority of the 
Magnuson-Stevens Act and ATCA. ATCA authorizes the Secretary of 
Commerce (Secretary) to promulgate regulations, as may be necessary and 
appropriate, to implement ICCAT recommendations. The authority to issue 
regulations under the Magnuson-Stevens Act and ATCA has been delegated 
from the Secretary to the Assistant Administrator for Fisheries, NMFS.

Background

    Background information about the need for modification of the BFT 
base quotas for all domestic fishing categories, the 2011 BFT quota 
specifications, and amendment of the Atlantic tuna fisheries management 
measures was provided in the preamble to the proposed rule (76 FR 
13583, March 14, 2011) and is not repeated here.

Changes From the Proposed Rule

    The total amount of available annual quota is determined by the 
ICCAT-recommended U.S. baseline BFT quota after consideration of 
overharvest/underharvest from the previous fishing year and any 
accounting for estimated dead discards of BFT. At the time the proposed 
rule was prepared, NMFS used the 2009 estimate of 160 mt as a proxy for 
potential 2011 dead discards because the BFT dead discard estimate for 
2010 was not yet available. The 2010 dead discard estimate, 122.3 mt, 
became available from the NMFS Southeast Fisheries Science Center 
during the comment period. Estimates of dead discards are only 
available for the Longline category at this time. Estimates from other 
BFT gear types and fishing sectors that are not observed at sufficient 
levels for estimation and that do not report via a logbook are not 
included in this calculation. Use of the 2010 estimate as a proxy for 
estimated 2011 dead discards in the final rule is appropriate because 
it is the best available and most complete information NMFS currently 
has regarding dead discards.
    In the proposed rule, under each baseline quota alternative, NMFS 
also set out its calculation of ``available'' annual quota and its 
proposed allocation of that available quota among the commercial and 
recreational domestic fishing categories (i.e., quota specifications), 
and its proposed methodology for handling dead discards. NMFS proposed 
a calculation and allocation methodology consistent with the 2006 
Consolidated HMS FMP and implementing regulations, but different than 
the methodology used for the past 4 years. NMFS received comments on 
the proposed allocation methodology both at public hearings and in 
writing during the public comment period. NMFS considered the comments 
(summarized in the Response to Comments section below) and the updated 
(2010) dead discard estimate, and after public discussion and input has 
decided to account for dead discards in a different manner to establish 
the 2011 BFT quota specifications as described below. Note that these 
considerations are for the 2011 quota specifications only.
    To set the final 2011 BFT quota specifications, NMFS has decided to 
account up front (i.e., at the beginning of the fishing year) for half 
of the estimated dead discards, using the recent 2010 estimate rather 
than the 2009 estimate used at the proposed rule stage. In the proposed 
rule, NMFS had proposed to subtract from the overall quota all of the 
estimated dead discards up front and then allocate the remaining quota 
among the fishery categories, even though the United States is not 
required by ICCAT or current regulations to account for the total 
amount of dead discards until the end of the fishing season. In the 
final rule, NMFS is accounting for half of the estimated pelagic 
longline dead discards up front and deducting that portion of expected 
longline discards directly from the Longline category quota. Accounting 
for dead discards in the Longline category in this way may provide some 
incentive for pelagic longline fishermen to reduce those interactions 
that may result in dead discards. Also in response to public comment, 
NMFS is applying half of the 94.9 mt of 2010 underharvest that is 
allowed to be carried forward to 2011 to the Longline category and 
maintaining the other half in the Reserve category. NMFS intends to 
maintain this underharvest in the

[[Page 39020]]

Reserve category as needed until later in the fishing year for maximum 
flexibility in accounting for 2011 landings and dead discards.
    NMFS took into consideration a broad range of public comment on the 
quota specification methodology and allocations in designing this final 
action. NMFS considers this action to be a transitional approach from 
the method used over the past 4 fishing years. Current regulations 
provide that the dead discard estimate may, but is not required to be, 
subtracted from the annual U.S. quota, and NMFS previously opted to 
deduct that estimate at the beginning of the year when the quota 
specifications were established. These final specifications are 
consistent with HMS regulations, are a logical outgrowth of the 
originally proposed calculation methodology, and would not affect the 
base quotas analyzed in Alternatives A1 and A2 of the EA/RIR/FRFA. For 
the directed fishing categories, this final rule maintains the directed 
categories at their baseline quotas, which reflect application of the 
allocation scheme established in the Consolidated Atlantic Highly 
Migratory Species Fishery Management Plan (Consolidated HMS FMP) to the 
2011 baseline U.S. BFT quota (923.7 mt). All landings and dead discards 
will be accounted for and reported to ICCAT, and NMFS will make any 
ICCAT-required adjustments to future U.S. BFT quotas, as necessary.
    Specifically, to set the final 2011 BFT quota specifications, NMFS 
first applies the percentages in the Consolidated HMS FMP allocation 
scheme to the overall U.S. quota of 923.7 mt to obtain the baseline 
category quotas for the different categories (i.e., the General, 
Harpoon, Purse Seine, Angling, Longline, Trap, and Reserve categories). 
NMFS then deducts half of the 2010 dead discard estimate of 122.3 mt 
(i.e., 61.2 mt) from the 2011 baseline Longline category quota of 74.8 
mt and applies half of the 94.9 mt allowed to be carried forward to 
2011 to the Longline category, i.e., 74.8-61.2 + 47.5 = 61.1 mt 
adjusted Longline subquota (not including the 25-mt allocation set 
aside by ICCAT for the NED). NMFS will add the remainder of the 2010 
underharvest that can be carried forward to 2011 (47.4 mt) to the 
Reserve category's baseline allocation of 23.1 mt, for an adjusted 
Reserve category quota of 70.5 mt. For the directed fishing categories, 
NMFS is not making any adjustments to the allocations that result from 
applying the scheme established in the Consolidated HMS FMP to the 2011 
baseline U.S. BFT quota. Quota specifications for 2012 would be 
addressed in a separate, future action using information on 2011 BFT 
landings and the best available dead discard estimate at that time.
    Regarding the Atlantic tunas transfer-at-sea regulations, and in 
response to public comment, NMFS adds the words ``or other gear'' to 
further clarify that ``transfer'' includes moving a tuna from fishing 
gear or other gear in the water from one vessel to another.

2011 Quota Specifications

    NMFS establishes final 2011 quota specifications as follows (and as 
shown in Table 1): General category--435.1 mt; Harpoon category--36 mt; 
Purse Seine category--171.8 mt; Angling category--182 mt; Longline 
category--61.1 mt; and Trap category--0.9 mt. The amount allocated to 
the Reserve category for inseason adjustments, and potential quota 
transfers, scientific research collection, and accounting for potential 
overharvest in any category except the Purse Seine category, would be 
70.5 mt.
    The General category quota of 435.1 mt would be divided further 
into the time-period allocations established in the Consolidated HMS 
FMP. Thus, 23.1 mt (5.3 percent) would be allocated to the General 
Category for the period beginning January 1, 2011, and ending January 
31, 2011; 217.6 mt (50 percent) for the period beginning June 1, 2011, 
and ending August 31, 2011; 115.3 mt (26.5 percent) for the period 
beginning September 1, 2011, and ending September 30, 2011; 56.6 mt (13 
percent) for the period beginning October 1, 2011, and ending November 
30, 2011; and 22.6 mt (5.2 percent) for the period beginning December 
1, 2011, and ending December 31, 2011.
    The Angling category quota of 182 mt would be further divided, 
pursuant to the area subquota allocations established in the 
Consolidated HMS FMP, as follows: School BFT--94.9 mt, with 36.5 mt to 
the northern area (north of 39[deg]18' N. latitude), 40.8 mt to the 
southern area (south of 39[deg]18' N. latitude), plus 17.6 mt held in 
reserve; large school/small medium BFT--82.9 mt, with 39.1 mt to the 
northern area and 43.8 mt to the southern area; and large medium/giant 
BFT--4.2 mt, with 1.4 mt to the northern area and 2.8 mt to the 
southern area.
    The Longline category would be further divided in accordance with 
the North/South allocation percentages (i.e., no more than 60 percent 
to the south of 31[deg] N. latitude) in the Consolidated HMS FMP. Thus, 
the Longline category quota of 61.1 mt would be subdivided as follows: 
24.4 mt to pelagic longline vessels landing BFT north of 31[deg] N. 
latitude, and 36.7 mt to pelagic longline vessels landing BFT south of 
31[deg] N. latitude. NMFS would account for landings under the 25-mt 
NED allocation separately from other Longline category landings.

    Table 1--Atlantic Bluefin Tuna Quotas and Quota Specifications (in Metric Tons) for the 2011 Fishing Year
                                          (January 1-December 31, 2011)
----------------------------------------------------------------------------------------------------------------
                                                                         2011 Quota specifications
                                     Baseline allocation  ------------------------------------------------------
                                      for  2011 and 2012                        2010
  Category  (% share of baseline       (per 2010 ICCAT      Dead discard    Underharvest
              quota)                  recommendation and   deduction  (\1/    to carry     Adjusted 2011 fishing
                                     consolidated HMS FMP    2\ of 2010      forward to          year quota
                                         allocations)      proxy of 122.3  2011  (94.9 mt
                                                                 mt)           total)
----------------------------------------------------------------------------------------------------------------
Total (100).......................  923.7                  ..............  ..............  957.4
----------------------------------------------------------------------------------------------------------------
Angling (19.7)....................  182.0                  ..............  ..............  182.0
                                    SUBQUOTAS:                                             SUBQUOTAS:
                                    School 94.9            ..............  ..............  School 94.9
                                      Reserve 17.6         ..............  ..............    Reserve 17.6
                                      North 36.5           ..............  ..............    North 36.5
                                      South 40.8           ..............  ..............    South 40.8
                                    LS/SM 82.9             ..............  ..............  LS/SM 82.9
                                      North 39.1           ..............  ..............    North 39.1
                                      South 43.8           ..............  ..............    South 43.8
                                    Trophy 4.2             ..............  ..............  Trophy 4.2

[[Page 39021]]

 
                                      North 1.4            ..............  ..............    North 1.4
                                      South 2.8            ..............  ..............    South 2.8
----------------------------------------------------------------------------------------------------------------
General (47.1)....................  435.1                  ..............  ..............  435.1
                                    SUBQUOTAS:             ..............  ..............  SUBQUOTAS:
                                      Jan 23.1             ..............  ..............    Jan 23.1
                                      Jun-Aug 217.6        ..............  ..............    Jun-Aug 217.6
                                      Sept 115.3           ..............  ..............    Sept 115.3
                                      Oct-Nov 56.6         ..............  ..............    Oct-Nov 56.6
                                      Dec 22.6             ..............  ..............    Dec 22.6
----------------------------------------------------------------------------------------------------------------
Harpoon (3.9).....................  36.0                   ..............  ..............  36.0
----------------------------------------------------------------------------------------------------------------
Purse Seine (18.6)................  171.8                  ..............  ..............  171.8
----------------------------------------------------------------------------------------------------------------
Longline (8.1)....................  74.8                            -61.2           +47.5  61.1
                                    SUBQUOTAS:             ..............  ..............  SUBQUOTAS:
                                      North (-NED) 29.9    ..............  ..............    North (-NED) 24.4
                                      NED 25.0 *           ..............  ..............    NED 25.0 *
                                      South 44.9           ..............  ..............    South 36.7
Trap (0.1)........................  0.9                    ..............  ..............  0.9
Reserve (2.5).....................  23.1                   ..............           +47.4  70.5
----------------------------------------------------------------------------------------------------------------
* 25-mT ICCAT set-aside to account for bycatch of BFT in pelagic longline fisheries in the NED. Not included in
  totals at top of table.

Reinstatement of NED Target Catch Requirements

    NMFS reinstates target catch requirements for pelagic longline 
vessels fishing in the NED. This action removes the exemption from 
target catch requirements that effectively has applied in the NED since 
November 2003. NMFS is removing the provision that allows unlimited 
retention of commercial-sized BFT taken incidental to fishing for other 
species in the NED up to the amount allocated for the NED (currently 25 
mt). Instead, the same target catch limits apply in all areas (i.e., 
both inside and outside of the NED) as follows: One large medium or 
giant BFT (i.e., measuring 73 inches (185 cm) or greater) per vessel 
per trip may be landed, provided that at least 2,000 lb of species 
other than BFT are legally caught, retained, and offloaded from the 
same trip and are recorded on the dealer weighout slip as sold; two 
large medium or giant BFT may be landed incidentally to at least 6,000 
lb of species other than BFT; and three large medium or giant BFT may 
be landed incidentally to at least 30,000 lb of species other than BFT.

Atlantic Tunas Possession at Sea and Landing Form

    NMFS clarifies the regulations regarding Atlantic tunas possession 
at sea and landing to specify that as long as the fork of the tail 
remains intact, the upper and lower lobes of the tail may be removed 
(as shown in Figure 1). This change balances the need for maintaining a 
standardized method of measuring Atlantic tunas with the request to 
allow Atlantic tunas to be stored at sea in a more efficient manner. 
This rulemaking does not affect the measurement methodology or 
requirements for species other than Atlantic tunas.

[[Page 39022]]

[GRAPHIC] [TIFF OMITTED] TR05JY11.000

Atlantic Tunas Transfer at Sea

    NMFS clarifies the intent of the Atlantic tunas transfer-at-sea 
regulations and prohibitions by adding a sentence to the regulatory 
text regarding transfer at sea of Atlantic tunas that would read: 
``Notwithstanding the definition of `harvest' at Sec.  600.10, for the 
purposes of this part, `transfer' includes, but is not limited to, 
moving or attempting to move an Atlantic tuna that is on fishing or 
other gear in the water from one vessel to another vessel.'' In the 
future, NMFS may make similar clarifications regarding transfer at sea 
for other Atlantic highly migratory species via separate actions 
pertaining to those species.

Comments and Responses

    NMFS received approximately 2,000 written comments representing 
approximately 4,000 individuals or organizations, and oral comments 
were received from the approximately 400 participants who attended the 
six public hearings (in Barnegat, NJ; Manteo, NC; Gloucester, MA; 
Silver Spring, MD; Portland, ME; and Fairhaven, MA). The majority of 
the comments received opposed the 2011 BFT quota specifications as 
proposed. Below, NMFS summarizes and responds to all comments made 
specifically on the proposed rule. In addition, NMFS received comments 
on issues that were not part of this rulemaking. These comments are 
summarized under ``Other Issues'' below.

A. BFT Base Quota

    Comment 1: NMFS should implement the ICCAT-recommended U.S. quota.
    Response: NMFS agrees. Implementing the ICCAT-recommended baseline 
U.S. BFT quota is necessary for the United States to be in compliance 
with the current ICCAT western BFT Recommendation, consistent with 
ATCA. The western Atlantic BFT Total Allowable Catch (TAC), which 
includes the U.S. quota, is expected to allow for continued BFT stock 
growth under the both the low and high stock recruitment scenarios 
considered by ICCAT's Standing Committee on Research and Statistics 
(SCRS).
    Comment 2: It is arbitrary and capricious for NMFS to adopt quotas 
relying on the ICCAT western BFT recommendation. A 2008 independent 
review found ICCAT ineffective at controlling catch and that ICCAT 
management objectives have not been met. By relying entirely on ICCAT 
recommendations to set quotas, NMFS has ``spurned its legal obligations 
under the Magnuson-Stevens Act,'' specifically violating National 
Standard 1, which requires that conservation and management measures 
shall prevent overfishing while achieving, on a continuing basis, the 
optimum yield from each fishery, and National Standard 2, which 
requires that conservation and management measures shall be based upon 
the best scientific information available. NMFS should not rely solely 
on ICCAT stock assessments.
    Response: NMFS disagrees that adoption of the ICCAT-recommended 
quota for western BFT is arbitrary and capricious or violates National 
Standards 1 and 2. NMFS considers the information considered by SCRS in 
the BFT stock assessments to constitute the best information currently 
available on which to make BFT fishery management decisions.
    The United States is working with other ICCAT Contracting Parties 
to prevent BFT overfishing and overfished conditions for both stocks 
while providing reasonable opportunities to fish. At its 2010 annual 
meeting, ICCAT adopted TACs and other conservation and management 
measures that are within the range of scientific advice that SCRS 
provided to ICCAT for both the western and eastern Atlantic stocks. 
Over the past several years, ICCAT has taken steps to strengthen its 
control of the eastern Atlantic bluefin tuna fishery, including a 
shorter fishing season, further reductions in fishing capacity, and 
stronger monitoring and compliance measures. ICCAT's 2010 assessment of 
the eastern BFT stock indicated that maintaining catches at the current 
TAC will likely allow biomass to increase if compliance with the 
current management measures continues. The latest stock assessment 
concluded that the current western Atlantic TAC should allow spawning 
stock biomass to increase under both high and low productivity 
scenarios. The western Atlantic fishery has also had a long history of 
compliance. In addition, the current ICCAT BFT recommendations for both 
the western and eastern stocks have a provision that would suspend all 
bluefin fisheries if SCRS detects a serious threat of stock collapse.
    Further, NMFS manages BFT under the dual authority of the Magnuson-
Stevens Act and ATCA. ATCA mandates that no regulation promulgated may 
have the effect of increasing or decreasing any allocation or quota of 
fish to which the United States agreed pursuant to an ICCAT 
recommendation.
    Comment 3: NMFS should reduce significantly, or eliminate, quotas 
for fisheries targeting BFT and take immediate measures to reduce 
incidental mortality.
    Response: NMFS is required under the Magnuson-Stevens Act and ATCA 
to

[[Page 39023]]

provide U.S. fishing vessels with a reasonable opportunity to harvest 
the ICCAT-recommended quota. NMFS allocates the U.S. quota among 
categories to ensure that available fishing opportunities are 
distributed over as wide a range as possible with regard to time of 
year, geographic area, and type of participation while maintaining 
consistency with BFT conservation and management measures. Both the 
recent action to require the use of weak hooks by pelagic longline 
vessels fishing for HMS in the Gulf of Mexico and the action in this 
final rule to reinstate target catch requirements in the NED are 
consistent with the agency's efforts to address bycatch issues and 
manage BFT catch and landings within available quotas.
    Comment 4: NMFS must consider the scientific information presented 
in the petition to list BFT as endangered or threatened under the 
Endangered Species Act (ESA), and CBD's comments on the 90-day finding, 
before issuing final conservation and management measures, including 
quotas, for BFT.
    Response: Much of the information that was considered in the BFT 
listing petition status review was also considered by ICCAT and by NMFS 
in setting the BFT TAC and category quotas, respectively. NMFS proposed 
and is finalizing these management measures to be effective for June 
2011, when ICCAT Recommendation 10-03 enters into force. Although the 
two efforts were conducted in parallel, the agency's fishery management 
obligations, including establishing the 2011 quota specifications, 
continued under ATCA and the Magnuson-Stevens Act during the status 
review process.
    On May 27, 2011, NOAA announced that listing BFT as endangered or 
threatened is not warranted at this time (76 FR 31556, June 1, 2011). 
NOAA has committed to revisit this decision by early 2013, when more 
information will be available about the effects of the Deepwater 
Horizon BP oil spill, the 2012 SCRS BFT stock assessment, and the 2012 
ICCAT BFT recommendations. NOAA also announced on May 27, 2011, that it 
is formally designating both the western Atlantic and eastern Atlantic 
and Mediterranean stocks of BFT as ``species of concern'' under the 
ESA. This places the species on a watch list for concerns about its 
status and threats to the species.

B. 2011 BFT Quota Specifications

    Comment 5: NMFS should not deduct the dead discard estimate from 
the base quota. To account for pelagic longline BFT dead discards off 
the U.S. base quota is unfair as it would result in reduced quotas for 
the more selective, directed fishing categories, and be a de facto 
reallocation of quota shares from those established in the Consolidated 
HMS FMP. It would also be economically damaging to the directed 
fisheries and support industries, and likely would result in shorter 
seasons and lower retention limits. NMFS is not managing for optimum 
yield when it allows the Longline category's landings and dead discards 
to total approximately 28 percent of the U.S. quota.
    Response: The United States must account for dead discards, 
regardless of which fishery they occur in, to comply with ICCAT 
recommendations. The only dead discard data currently available comes 
from the longline fishery. Existing BFT quota regulations state that 
NMFS may subtract dead discards from the U.S. quota and make the 
remainder available to vessels subject to U.S. jurisdiction. This is an 
allowable methodology under existing regulations, and was not a new 
proposal in this rulemaking.
    However, as described above, following consideration of public 
comment and the availability of updated dead discard estimates, NMFS 
has decided to account for one half of the dead discard estimate up 
front and directly off the Longline category quota, which will mitigate 
potential economic impacts commenters associated with adjusting the 
baseline quota for dead discards. For the directed fishing categories, 
NMFS is applying the allocation scheme established in the Consolidated 
HMS FMP to the 2011 baseline U.S. BFT quota with no further 
adjustments.
    It is important to consider that the BFT quota allocations in the 
Consolidated HMS FMP were based on historic landings and were 
established initially in 1992. Baseline quotas were modified in 1995 
and 1997 but have remained the same since implementation of the 1999 
FMP when a separate discard allowance was provided for in the ICCAT BFT 
recommendation. Following ICCAT's elimination of the dead discard 
allowance and change to include dead discards within TACs in 2006, NMFS 
has not modified the allocation scheme to include dead discards into 
the baseline quotas. The United States has accounted for this mortality 
as part of the domestic specification calculation process for the last 
several years and reports dead discard estimates to ICCAT annually. 
This is one of many issues the agency intends to consider in its review 
of BFT management in the near future. Regarding the concern about this 
accounting method creating shorter fishing seasons and lower retention 
limits, specifically for the recreational BFT fishery in 2011, the 
inseason actions implemented in April (i.e., retention limit adjustment 
and closure of the southern area BFT trophy fishery) were based on 
recent changes in the fishery and size of bluefin tuna available to 
fishermen, not the proposed quota specifications. Finally, NMFS would 
like to clarify that accounting for dead discards as proposed or as 
finalized does not alter the Longline category's allocation of the U.S. 
quota. As proposed and finalized, the Longline category's allocation 
per the Consolidated HMS FMP is 8.1 percent to allow for landings of 
BFT, not dead discards. The pelagic longline fleet does not benefit 
economically from the BFT they must discard dead.
    Comment 6: NMFS should not deduct the dead discard estimate from 
the overall quota (i.e., ``off the top'') because it would provide no 
incentive for the pelagic longline fishery to reduce BFT interactions 
and dead discards. NMFS should account for these dead discards within 
the Longline category quota, and, generally, should hold each category 
accountable for its overharvests.
    Response: As discussed above, in these final quota specifications, 
NMFS is accounting for half of the estimated dead discards within the 
Longline category up front. This action may provide some incentive for 
pelagic longline fishermen to reduce BFT interactions that may result 
in dead discards. Reinstating target catch requirements in the NED also 
may serve as a disincentive to fish in areas where BFT interactions 
could be high.
    As discussed below, the pelagic longline fishery is currently the 
only fishery for which sufficient data is collected to estimate dead 
discards. However, an unknown level of dead discards occurs in directed 
BFT fishing fisheries as well and NMFS will consider how best to modify 
data collection programs to provide dead discard estimates in the 
future.
    Comment 7: NMFS should consider implementing a 25-percent to 50-
percent reduction of the allocated quota to the Longline category for 
one or more years. The longliners know there need to be some changes, 
although it would not be appropriate to cut out the pelagic longline 
fishery entirely.
    Response: NMFS does not eliminate the quota for the Longline 
category in the final rule, although some of the approaches recommended 
in the comments on the proposed rulemaking would have had that effect. 
As discussed above, NMFS is accounting

[[Page 39024]]

for half of the estimated pelagic longline dead discards up front and 
deducting that portion of expected longline discards directly from the 
Longline category quota. Accounting for dead discards in the Longline 
category in this way may provide some incentive for pelagic longline 
fishermen to reduce those interactions that may result in dead 
discards. Reinstating pelagic longline target catch requirements for 
retaining BFT in the NED may also have a similar effect.
    Comment 8: The proposed quota specifications are not consistent 
with the ICCAT provision that Contracting Parties shall minimize dead 
discards to the extent practicable. Allocating a disproportionate share 
of the BFT quota to the sector (pelagic longline) that causes the most 
discards is inconsistent with ICCAT mandates. The proposed quota 
specifications also ignore the obligations of the 1982 United Nations 
Convention on the Law of the Sea, the 1995 United Nations Fish Stocks 
Agreement, and the 1995 Food and Agriculture Organization Code of 
Conduct, which call for minimizing catch of non-target species.
    Response: The U.S. quota finalized in this action is consistent 
with ICCAT Recommendation 10-03, the Magnuson-Stevens Act, and ATCA. 
The U.S. pelagic longline fleet fishes directly for swordfish and 
Atlantic tunas such as yellowfin tuna and catches BFT incidentally. 
Dead discards are the result of domestic and international restrictions 
on the size of BFT that may be retained and requirements that certain 
amounts of target species (e.g., swordfish and other tunas) be landed 
in order to keep any BFT. If small BFT are caught, or if insufficient 
target species have been caught, BFT must be discarded, and some are 
discarded dead. The agency has historically implemented a series of 
management measures designed to regulate the incidental catch of BFT in 
non-directed Atlantic fisheries. Additionally, NMFS currently imposes a 
time and area closure for the month of June to prevent BFT longline 
interactions off the mid-Atlantic coast. As discussed above, NMFS 
recently finalized a rule requiring the use of weak hooks in the Gulf 
of Mexico pelagic longline fishery to minimize BFT interactions, is 
reinstating target catch requirements in the NED through this action, 
and also will consider options for further regulatory changes to reduce 
dead discards in the future. Regarding the 1982 United Nations 
Convention on the Law of the Sea, the 1995 United Nations Fish Stocks 
Agreement, and the 1995 Food and Agriculture Organization Code of 
Conduct for Responsible Fisheries, NMFS does not consider this action 
to be inconsistent with those instruments.
    Comment 9: Under ATCA, NMFS is authorized to adopt regulations 
necessary and appropriate to carry out the purposes and objectives of 
ICCAT. NMFS has been violating ATCA by allowing a de facto ``incidental 
catch'' fishery in the Gulf of Mexico, in violation of the ICCAT 
recommendation to prohibit directed fishing targeting BFT in that area.
    Response: NMFS prohibits directed fishing for BFT in the Gulf of 
Mexico. However, some level of BFT catch is unavoidable during directed 
fishing for yellowfin tuna and swordfish. NMFS has historically 
implemented a series of management measures designed to regulate and 
limit the incidental catch of BFT in non-directed Atlantic fisheries.
    Comment 10: Allocating a disproportionate portion of the BFT quota 
to the Longline category, which catches BFT only as bycatch, violates 
National Standard 4, which prohibits discrimination in the allocation 
of fishing privileges.
    Response: National Standard 4 includes provisions that measures 
shall not discriminate between residents of different states and that 
allocations shall be fair and equitable to all fishermen. NMFS is 
allocating the baseline U.S. BFT quota consistent with the Consolidated 
HMS FMP allocation scheme. The action does not discriminate between 
residents of different states in the allocation of fishing privileges. 
It is important to note that the directed fishing categories currently 
do not have the same monitoring requirements as the pelagic longline 
fleet (e.g., for logbooks and observers) and that improvements in 
directed fishery data collection could result in changes to the dead 
discard estimate and to the future management of those fisheries.
    In the proposed 2011 quota specifications, NMFS' goal was to 
balance the objectives of accounting for dead discards proactively, 
distributing fishing opportunities in a manner consistent with the 
Consolidated HMS FMP allocation scheme, and allowing continued 
operation of commercially valuable fisheries for swordfish and other 
tunas while controlling the landings of the incidental BFT catches. 
Through the final action, as described above, NMFS has used an approach 
that accounts for a portion of the dead discard estimate up front, 
holds a portion of the unharvested 2010 BFT quota that is allowed to be 
carried forward to 2011 in the Reserve category for maximum flexibility 
for end-of-year accounting, and maintains directed fishing categories 
at their baseline quotas, which reflect application of the allocation 
scheme established in the Consolidated HMS FMP to the 2011 baseline 
U.S. BFT quota.
    Comment 11: Perpetuating BFT dead discards does not serve the 
primary values of the BFT resource--food production and recreational 
opportunities--and thus violates National Standard 5, which requires 
that conservation and management measures consider efficiency in the 
utilization of fishery resources.
    Response: NMFS considers efficiency in the utilization of the BFT 
resource across user groups, consistent with National Standard 5. To 
meet the multiple goals for the BFT fishery, NMFS considers the 
importance of all of the national standards when making fishery 
management decisions, including those intended to provide reasonable 
fishing opportunities to a wide range of users and gear types, 
coastwide, throughout the calendar year. Due to restrictions on size 
and retention limits, some amount of discards is inevitable and some 
amount of the BFT released are already dead or do not survive.
    Comment 12: Because the proposed rule did not propose that bycatch 
be avoided or reduced, it violates National Standard 9, which requires 
that conservation and management measures minimize bycatch.
    Response: The main purpose of the proposed rule was to implement 
the 2010-ICCAT recommended baseline U.S. BFT quota. The quota 
specifications were proposed to account for underharvest allowed to be 
carried forward to 2011 and to account for dead discards. The 
Consolidated HMS FMP and its implementing regulations minimize bycatch 
and bycatch mortality to the extent practicable in several ways. Most 
recently, on April 5, 2011, NMFS published a final rule to require weak 
hook use in the Gulf of Mexico pelagic longline fishery (76 FR 18653). 
That action and the action in this final rule to reinstate target catch 
requirements in the NED are part of the agency's efforts to address 
bycatch issues and manage BFT catch and landings within available 
quotas. In addition, the accounting for half of the anticipated dead 
discards up front from the Longline category in this action may provide 
some incentive for pelagic longline fishermen to reduce those 
interactions that may result in dead discards. NMFS may identify 
additional measures to be taken in the

[[Page 39025]]

future resulting from further management review.
    Comment 13: NMFS should account for dead discards as proposed. This 
approach is consistent with the method used for the last several years 
and would allow continued participation in the fishery by all user 
groups. The 8.1-percent Longline category allocation established in the 
FMP was based only on historical landings, not catch (i.e., landings 
and discards). NMFS should continue to explore ways to convert dead 
discards to landings. Furthermore, NMFS should refer to dead discards 
as ``regulatory discards'' since it is domestic regulations that force 
pelagic longline fishermen to waste BFT bycatch.
    Response: From 2007 through 2010, NMFS deducted the estimate of 
dead discards up front, but directly from the Longline category. In 
those years, NMFS was able to follow this approach while also providing 
a landings quota for the Longline category because of large 
underharvests and the fact that ICCAT allowed an amount equal to half 
of the U.S. quota to be carried forward to the following year. At the 
time the proposed rule was prepared, NMFS determined that the same 
approach would be impracticable given the change in the amount of 
underharvest that could be carried forward to 2011 (i.e., from 50 
percent of the U.S. quota to 10 percent, or from approximately 475 mt 
to 95 mt). NMFS considers the approach used for these final 2011 quota 
specifications to be a transitional approach from the method used over 
the past four fishing years. NMFS acknowledges the implications of the 
change in the ICCAT western BFT recommendation in 2006 for the pelagic 
longline fishery, and is attempting to balance the needs of the pelagic 
longline fleet to continue operations for the directed swordfish and 
Atlantic tunas fisheries with the needs of directed BFT fishery 
participants.
    Comment 14: The pelagic longline fleet is critical in providing 
domestic swordfish and Atlantic tunas product and catch data used in 
highly migratory species stock assessments, and has contributed to 
scientific sampling efforts. Curtailing longline effort based on BFT 
bycatch could result in the loss of U.S. swordfish quota (if not used) 
to other ICCAT Contracting Parties that do not use safe handling and 
release practices, consequently having negative impacts to sea turtles 
and mammals, as well as billfish.
    Response: NMFS acknowledges the role of the pelagic longline 
fishery in providing domestic fish products and important data for HMS 
stock assessments, such as indices of abundance on the high seas. NMFS 
recognizes the conservation efforts of the U.S. longline fleet as well 
as the concerns about potential loss of quota to countries with less 
protective measures for protected species. Through these final 
specifications, NMFS is accounting for half of the estimated dead 
discards against the Longline category up front but also is providing 
half of the available underharvest to the Longline category to balance 
the need for continued directed longline operations for swordfish and 
Atlantic tunas with the need to account for dead discards within the 
U.S. BFT quota.
    Comment 15: Use of the 2009 pelagic longline dead discard estimate 
as a proxy for 2011 dead discards is inappropriate, in part because the 
estimate is nearly two years old, and in part because 2009 may have 
been an anomalous year for pelagic longline BFT catches.
    Response: Since the proposed rule was published, NMFS has received 
and is now using the 2010 dead discard estimate. NMFS considers the 
2010 dead discard estimate to be the best information available. By 
maintaining a portion of the 2010 BFT underharvest (allowed to be 
carried to 2011) in the Reserve category rather than allocating that 
amount now, NMFS is maximizing its flexibility regarding accounting for 
total 2011 landings and dead discards. As the season progresses, NMFS 
will have more 2011 information to use in making inseason transfer 
decisions as well as more data on pelagic longline BFT interactions, 
including dead discards.
    Comment 16: In considering a proxy for the 2011 estimate, NMFS 
should calculate the anticipated reduction in dead discards from 
required use of weak hooks in the Gulf of Mexico.
    Response: NMFS agrees that the recent implementation of the weak 
hook requirement for pelagic longline vessels in the Gulf of Mexico 
should reduce BFT bycatch and dead discards in the Gulf of Mexico. 
However, because the weak hook requirement was not effective until May 
5, 2011, mid-way through the BFT spawning season (April through June), 
NMFS currently lacks the data appropriate to make such calculations. 
This, combined with uncertainties regarding post-release mortality, 
makes it difficult to quantify now the effect of the weak hook 
requirement on incidental BFT catch in the Gulf of Mexico. Therefore, 
the 2010 dead discards estimate is the best available proxy at this 
time. NMFS will continue to examine this issue and take appropriate 
action to account for any reductions in dead discards that result from 
the weak hook rule implementation.
    Comment 17: The dead discard estimation methodology is unclear, and 
there are concerns that the extrapolation method may be amplifying the 
level of discards.
    Response: The United States applies the SCRS-approved methodology 
to calculate and report dead discards for both stock assessment 
purposes and quota compliance purposes. The amount of dead discards is 
generated by estimating discard rates from data collected by NMFS' 
Pelagic Observer Program and extrapolating these estimates using the 
effort (number of hooks) reported in the Pelagic Logbooks. This 
methodology is applied within each time/area stratum (e.g., catch rates 
from the Gulf of Mexico are used to estimate discards from the Gulf of 
Mexico, not the NED). Estimates of dead discards from other gear types 
and fishing sectors that do not use the pelagic longline vessel logbook 
are unavailable at this time and thus are not included in this 
calculation. Changes to the approved method likely would require 
consideration and approval by the SCRS prior to U.S. implementation.
    Comment 18: It is not mandatory for NMFS to project and account for 
U.S. dead discards at the start of year. ICCAT requires accounting for 
2011 landings and dead discards in 2012.
    Response: The ICCAT requirement is for countries to report total 
annual catch (landings and dead discards) in the year following the 
subject fishing year, i.e., report in the summer of 2012 the 2011 
total. Since the change in the ICCAT recommendation to eliminate the 
dead discard allowance, NMFS has taken a precautionary approach in 
proactively deducting the estimate of dead discards up front when 
establishing the final quota specifications for each year. NMFS must 
also balance its obligation to provide reasonable opportunity to 
harvest the U.S. quota with the fact that the ICCAT western BFT 
recommendation includes a provision for reduction of a Contracting 
Party's quota by 100 percent of the amount in excess of the quota and 
by 125 percent if overharvest occurs for a second year. As described 
above, in this final action, NMFS is taking the proactive measure of 
accounting for half of the estimated pelagic longline dead discards up 
front and deducting that portion of expected longline discards directly 
from the Longline category quota. Regardless of the specifications 
details in the final rule, the total 2011 U.S. BFT landings and pelagic 
longline dead discards will be accounted for and reported to ICCAT,

[[Page 39026]]

and NMFS would make any ICCAT-required adjustments to future U.S. BFT 
quotas, if necessary.
    Comment 19: NMFS should find a way to account for at least some 
portion of the dead discard estimate using the 285 mt of 2010 
underharvest that the United States is unable to carry forward under 
the current ICCAT BFT Recommendation.
    Response: In the 2010 BFT final quota specifications, NMFS deducted 
172.8 mt (the 2008 dead discard estimate, used as a proxy for estimated 
2010 dead discards) up front from the 2010 Longline category baseline 
quota. It would be inappropriate and inconsistent with the ICCAT BFT 
Recommendation to account for 2011 estimated dead discards with the 
amount of 2010 adjusted BFT quota that was unharvested and cannot be 
carried forward to 2011.
    Comment 20: The Massachusetts Division of Marine Fisheries 
commented that the proposed quota allocation (i.e., providing each 
quota category its FMP-based share of a quota that has been adjusted up 
front to account for anticipated dead discards in the pelagic longline 
fishery) attempts to maintain traditional FMP-based allocations without 
accounting for the changing nature of the BFT fisheries. The Purse 
Seine category, which has been allocated 18.6-percent of the U.S. 
quota, has not landed its full quota since 2003 and has had virtually 
no landings since 2005. Therefore, strict adherence to allocations 
based on the FMP-based allocations makes little sense, in the short-
term, given the unlikelihood that this category will land its quota 
share. NMFS should use inseason management authority to temporarily 
reallocate unused quota to address discards.
    Response: Under the current quota regulations, NMFS is obligated, 
regardless of their recent inactivity, to make equal allocations of the 
available Purse Seine category BFT subquota among the Purse Seine 
category vessels that have requested their 2011 allocations. However, 
within a fishing year, NMFS may transfer quotas among categories using 
determination criteria based on consideration of the regulatory 
determination criteria regarding inseason adjustments and other 
relevant factors provided under Sec.  635.27(a)(8), such as: The 
catches of the particular category quota to date and the likelihood of 
closure of that segment of the fishery if no adjustment is made; review 
of dealer reports, daily landing trends, and the availability of the 
BFT on the fishing grounds; the projected ability of the vessels 
fishing under the particular category quota to harvest the additional 
amount of BFT before the end of the fishing year; and the effects of 
the adjustment on accomplishing the objectives of the fishery 
management plan. Thus, if the Purse Seine subquota is not used, NMFS 
has the option to transfer that quota allocation to other categories, 
if appropriate.
    Comment 21: The directed BFT fishery participants have successfully 
avoided dead discards and should not be adversely affected, through 
reduced quotas and fishing opportunities, in the process of accounting 
for dead discards for the incidental pelagic longline fishery.
    Response: Although NMFS recognizes that commercial fishermen and 
recreational anglers generally attempt to avoid discarding BFT, some 
amount of discards is inevitable due to restrictions on size and 
retention limits, and some amount of the BFT released are already dead 
or do not survive. As discussed above, the pelagic longline fishery is 
currently the only fishery for which sufficient data is collected to 
estimate dead discards. Data collection programs may need to be 
modified to provide more accurate dead discard estimates in the future. 
The topic of post-release mortality received substantial attention at 
the 2010 ICCAT meeting and NMFS anticipates that the issue will be a 
focus at the 2012 ICCAT meeting when the western BFT Recommendation is 
renegotiated. Regarding the potential impact of the proposed action on 
inseason BFT management, see response to Comment 5.
    Comment 22: All user groups have discards, some of which are dead, 
and NMFS should initiate or expand studies to examine dead discard and 
release mortality rates in the all fishing categories. We should have 
our own national estimates rather than becoming subject to estimates 
from other BFT fisheries that may not be comparable to U.S. BFT 
fisheries.
    Response: NMFS agrees that examination of dead discard and release 
mortality estimates rates in all fishing categories is warranted and 
will explore methods to account for this mortality in the near future.
    Comment 23: Transfers of U.S. quota to other ICCAT Contracting 
Parties should be out of the question, particularly since the United 
States may be quota limited in 2011. Transferring quota would decrease 
opportunities to U.S. fishermen and may have negative impacts on 
protected species.
    Response: The United States has not received any request for 
transfer of BFT quota from another ICCAT Contracting Party. At this 
point, NMFS is allocating fully the U.S. baseline and adjusted quotas, 
including to the Reserve category, for domestic management purposes. 
Although no transfers are anticipated at this time, if NMFS were later 
to consider a transfer of U.S. quota to another ICCAT Contracting 
Party, NMFS would publish a separate action in the Federal Register, 
which would provide the details of the proposed transaction, including 
factors such as the amount of quota to be transferred, the projected 
ability of U.S. vessels to harvest the total U.S. BFT quota before the 
end of the fishing year, the potential benefits of the transfer to U.S. 
fishing participants (such as access to the EEZ of the receiving 
Contracting Party for the harvest of a designated amount of BFT), 
potential ecological impacts, and the Contracting Party's ICCAT 
compliance status. Additional NEPA analysis would be prepared, as 
appropriate, to analyze any additional action.

C. Reinstatement of Target Catch Requirements in the NED

    Comment 24: NMFS should implement target catch requirements for 
pelagic longline vessels fishing in the NED. Limiting the number of BFT 
that may be retained and landed would serve as a disincentive to target 
BFT or to fish in areas where interactions could be high.
    Response: NMFS agrees and is reinstating target catch requirements 
in the NED in this final rule.
    Comment 25: NMFS should not implement the target catch requirements 
that apply coastwide for pelagic longline vessels within the NED. The 
25-mt quota that ICCAT allocated for bycatch during pelagic longline 
fishing in the vicinity of the management area boundary was intended to 
be managed and accounted for distinctly from the U.S. share of the 
western BFT TAC. Pelagic longline vessels do not target BFT; there are 
sets on swordfish where the bycatch of BFT cannot be avoided. 
Furthermore, 2009 was an anomaly with regard to BFT landings in the 
NED, which generally have been under 10 mt annually. Implementing the 
target catch requirements that apply coastwide could have the 
unintended result of increasing BFT dead discards. NMFS should instead 
consider multi-year accounting for NED landings or a higher trip limit, 
such as 10 fish.
    Response: NMFS must implement ICCAT management measures as they are 
presented in the formal ICCAT recommendations, including the western 
BFT recommendation. NMFS acknowledges that the 2009 level of BFT 
interactions in the NED may have been abnormally high and that the 
pelagic longline fleet is not targeting BFT.

[[Page 39027]]

Nonetheless, NMFS maintains that reinstating target catch requirements 
in the NED may serve as a disincentive for a vessel owner or operator 
to fish in areas where BFT interactions could be high, or to extend a 
fishing trip in order to retain additional BFT. NMFS expects that 
implementing the same target catch requirements in all areas will 
decrease the likelihood that the Longline category quota is harvested 
prematurely, which could have economic impacts particularly on those 
vessels that do not fish in the NED. It also would be consistent with 
ongoing agency efforts to better align pelagic longline catch with 
Consolidated HMS FMP objectives and quota allocations.

D. Allowing Removal of Atlantic Tunas Tail Lobes

    Comment 26: Allowing for Atlantic tuna tails to be trimmed as NMFS 
proposed is an easy, common-sense measure that will make handling and 
storage of tunas in fish holds more efficient.
    Response: NMFS' proposal to allow removal of the upper and lower 
lobes of the tail was intended to balance the need to preserve the sole 
method for measuring Atlantic tunas, i.e., Curved Fork Length, which is 
taken by measuring to the fork of the tail, with the need for both 
commercial and recreational participants to store these fish as 
efficiently as possible. Therefore, NMFS is finalizing the measure as 
proposed.
    Comment 27: It is important that vessels be able to properly store 
the fish to preserve fish quality, and trimming the lobes would not 
help for giant BFT that may not fit in the hold. NMFS should allow the 
tail to be cut but require that the skin be left intact. The tail could 
then be folded for slushing purposes but be folded back to allow for a 
proper measurement.
    Response: NMFS acknowledges the importance to properly store fish 
to preserve their quality and also recognizes that allowing the removal 
of the upper and lower tail lobes may not assist storage in all 
instances, especially for giant BFT. However, to facilitate enforcement 
of size limits and to preserve the sole method for measuring Atlantic 
tunas, NMFS has opted not to allow the tail to be cut prior to being 
offloaded at this point in time.

E. Clarification of Atlantic Tunas Transfer at Sea

    Comment 28: The proposed clarification is necessary to close a 
regulatory loophole. NMFS should further clarify that transfer includes 
moving a tuna from fishing or other gear in the water from one vessel 
to another.
    Response: NMFS agrees with this comment and has clarified the 
regulatory text accordingly. The intent of this clarification is to 
ensure that fishermen are informed that transferring Atlantic tunas at 
sea, either by transferring the actual fish, or by transferring fish 
that remain in water, is prohibited. This also includes moving an 
Atlantic tuna using some sort of other gear, e.g., using a poly ball to 
transfer a fish.
    Comment 29: NMFS should not overburden itself with further 
regulations like this that are very difficult to enforce.
    Response: NMFS acknowledges that some regulations may be more 
difficult to enforce than others. However, this change in the 
regulations is intended to clarify, and enhance the enforceability of, 
existing regulations controlling effort, including daily retention 
limits. These effort controls are vital to ensuring all fishery 
participants have a reasonable opportunity to harvest Atlantic tunas 
regardless of their geographic or temporal engagement with the fishery. 
This clarification is also intended to preserve the allocation 
percentages, both within and across the various quota categories, by 
constraining landings to individual category quotas. As this change 
does not impose a new requirement, but merely clarifies and enhances 
the enforceability of existing regulations, NMFS does not consider it 
overly burdensome.

F. Other Issues

    NMFS received comments on the issues outlined under the eight 
subheadings below. These suggestions are beyond the scope of this 
rulemaking. However, in light of the issues involving U.S. quotas and 
domestic allocations, pelagic longline dead discards, the need to 
account for dead discards that result from fishing with other gears, 
and bycatch reduction objectives, as well as public comment, NMFS 
intends to undertake a comprehensive review of BFT management in the 
near future to determine whether existing management measures need to 
be adjusted to meet the multiple goals for the BFT fishery.
(1) Bycatch of BFT
    NMFS received comments requesting implementation of various actions 
to address pelagic longline BFT bycatch, including: establish bycatch 
caps or other incentives to reduce bycatch, such as those based on U.S. 
northeast species management (e.g., closure of directed fishery when a 
``choke species'' limit is met) or Canadian highly migratory species 
management (e.g., exclusion zones and quota transfers); establish time/
area closures in the Gulf of Mexico; implement dynamic area management; 
expand the weak hook requirement beyond the Gulf of Mexico (although 
many expressed this step would not be effective or appropriate); 
require the fleet to use buoy gear or greensticks in the Gulf of 
Mexico; increase observer coverage and/or real-time monitoring of 
landings and dead discards, including via VMS; prohibit retention of 
BFT for sale by pelagic longline vessels; change the FMP allocation to 
reflect both landings and dead discards; change the allocation scheme 
to one that promotes fishing with selective fishing gears; adjust the 
minimum size for BFT retention and implement other regulatory changes 
that would allow conversion of BFT dead discards to landings, including 
in the NED. The Massachusetts Division of Marine Fisheries commented 
that allocation schemes that result in the failure of U.S. fishermen to 
land the U.S. quota while discarding dead BFT will negatively impact 
domestic interests in the future. Several commenters recognize the 
challenge of maximizing swordfish quota utilization with minimizing BFT 
discards. Many commenters expressed concern that without a bycatch cap 
and with expected BFT stock growth, pelagic longline BFT interactions 
would increase. Dead discards could grow without limit, potentially 
representing a majority of the U.S quota, thereby compromising the 
directed fisheries.
(2) Permit Issues
    NMFS received comment that, as the BFT quota is small, NMFS should 
change all BFT permits from open access to limited access. Regarding 
swordfish revitalization, NMFS received comment that implementation of 
an HMS handgear permit would help increase swordfish quota utilization 
by gears more selective than pelagic longline, thus reducing potential 
BFT bycatch and dead discards.
(3) Inseason Quota Transfers
    NMFS received numerous comments that it should use ``inseason quota 
transfers'' that were actually recommendations to reallocate quota in a 
matter inconsistent with the Consolidated HMS FMP.
(4) Recreational Fishery Monitoring
    NMFS received comments that recreational landings must be tracked 
in a more timely fashion. Programs like the Massachusetts landing 
census pilot

[[Page 39028]]

program, currently under development, should be implemented in all 
states as soon as possible.
(5) ICCAT Negotiations
    NMFS received comments that the U.S. delegation should further 
consider domestic BFT fishery needs (for all HMS fisheries) when 
setting the U.S. position at ICCAT, that the U.S. delegation should 
renegotiate the BFT Recommendation, including quotas and the amount of 
underharvest allowed to be carried forward from one year to the next, 
should pursue two-year balancing periods for the base quota and NED 
allocation, and, wherever possible, maximize its ability to fully use 
the quota over a given period.
(6) Consideration of Petition to List BFT as Threatened or Endangered
    NMFS received comments that the current management system, which 
allows a substantial portion of the U.S. quota to be discarded dead, 
contradicts agency consideration of the petition to list BFT as 
threatened or endangered under the Endangered Species Act.
(7) BFT Boycott
    NMFS received a petition from the Center for Biological Diversity, 
with the names of more than 22,000 people who have pledged not to eat 
Atlantic and Southern BFT (fished around Australia) and to boycott 
restaurants with BFT on the menu in order to reduce consumer demand for 
and conserve both species. The Center for Biological Diversity launched 
the boycott following the November 2010 ICCAT meeting.
(8) November 2009 BFT Regulatory Amendment
    The North Carolina Division of Marine Fisheries encourages NMFS to 
(1) implement the 2009 proposed BFT management measure that would allow 
the General category season to extend past January 31 if January 
General category subquota remains available, and (2) establish a 
separate subquota for the months of February and March, potentially 
assigning unused prior year quota to that period. This would allow for 
greater utilization of available U.S. BFT quota.

Classification

    The Assistant Administrator for Fisheries, NMFS, has determined 
that this final action is consistent with the Magnuson-Stevens Act, 
ATCA, and other applicable law, and is necessary to achieve domestic 
management objectives under the Consolidated HMS FMP.
    There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day 
delay in effective date for the BFT quotas and 2011 BFT quota 
specifications in this action, because delaying this rule's 
effectiveness is both impracticable and unnecessary. ICCAT 
Recommendation 10-03 entered into force on June 14, 2011, and the 
United States at the November 2010 meeting of ICCAT agreed to establish 
the baseline annual U.S. quota of 923.7 mt by that date. Because the 
recommended effective date has already passed, it is critical that the 
quota be implemented immediately upon publication of the final rule, in 
order that NMFS and the United States comply with our international 
obligations. Furthermore, without the waiver for the 30-day delayed 
effectiveness period, the codified baseline annual U.S. BFT quota of 
952.4 mt and related subquotas (allocated per quota allocations 
established in the Consolidated HMS FMP) would remain in effect, and 
thus the required reduction in quota would not be implemented for BFT, 
which has recently been listed as a species of concern. Delaying the 
effective date is also unnecessary. This rule does not add or modify 
any regulatory requirements for the affected entities. Because the 
entities affected by this rule need not undertake any modifications to 
their property or practices in order to come into compliance with this 
rule, it is unnecessary to delay this rule's effectiveness to allow 
entities to modify their practices to come into compliance with the 
rule.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    In compliance with section 604 of the Regulatory Flexibility Act 
(RFA), a Final Regulatory Flexib