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

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[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)
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                                                                         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)
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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
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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
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Harpoon (3.9).....................  36.0                   ..............  ..............  36.0
----------------------------------------------------------------------------------------------------------------
Purse Seine (18.6)................  171.8                  ..............  ..............  171.8
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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
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* 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