Atlantic Highly Migratory Species; Adjustments to the Atlantic Bluefin Tuna General and Harpoon Category Regulations, 74003-74009 [2011-30726]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 230 (Wednesday, November 30, 2011)]
[Rules and Regulations]
[Pages 74003-74009]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-30726]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 090508897-1635-03]
RIN 0648-AX85


Atlantic Highly Migratory Species; Adjustments to the Atlantic 
Bluefin Tuna General and Harpoon Category Regulations

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

ACTION: Final rule.

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SUMMARY: NMFS is adjusting the Atlantic bluefin tuna (BFT) fishery 
regulations to: Increase the General category maximum daily retention 
limit; allow the General category season to remain open until the 
January subquota is reached, or March 31, whichever happens first; and 
increase the Harpoon category daily incidental retention limit. This 
action is intended to enable more thorough utilization of the available 
U.S. BFT quota for the General and Harpoon (commercial handgear) 
categories; minimize bycatch and bycatch mortality to the extent 
practicable; expand fishing opportunities for participants in the 
commercial winter General category fishery; and increase NMFS' 
flexibility for setting the General category retention limit depending 
on available quota.

DATES: This rule is effective December 30, 2011, except for Sec.  
635.23(a)(4) and Sec.  635.27(a)(1)(i)(A), which are effective November 
30, 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 
www.nmfs.noaa.gov/sfa/hms/.

FOR FURTHER INFORMATION CONTACT: Sarah McLaughlin or Tom Warren, (978) 
281-9260.

SUPPLEMENTARY INFORMATION: Atlantic tunas are managed under the dual 
authority of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act 
(ATCA). ATCA requires the Secretary of Commerce (Secretary) to 
promulgate regulations, as may be necessary and appropriate, to 
implement recommendations of the International Commission for the 
Conservation of Atlantic Tunas (ICCAT). The authority to issue 
regulations under the Magnuson-Stevens Act and ATCA has been delegated 
from the Secretary to the Assistant Administrator for Fisheries, NMFS.

Background

    Background information about the need for amendment of the 
regulations regarding the BFT General category maximum daily retention 
limit, General category season, and Harpoon category daily incidental 
retention limit was provided in the preamble to the proposed rule (74 
FR 57128, November 4, 2009) and is not repeated here.
    At the proposed rulemaking stage in 2009, the proposed rule was 
titled ``Atlantic Highly Migratory Species; Atlantic Bluefin Tuna 
Season and Retention Limit Adjustments.'' As the rule has evolved 
through the notice and comment process, NMFS has determined that 
keeping the proposed rule title at this stage would confuse the 
regulated public; therefore, to clarify the purpose and content of the 
rulemaking, NMFS has changed the title of the rule to ``Atlantic Highly 
Migratory Species; Adjustments to the Atlantic Bluefin Tuna General and 
Harpoon Category Regulations.'' Any changes to the rule's provisions 
that were made between the proposed and final rule are discussed in 
depth below.
    NMFS extended the original 45-day comment period on the proposed 
rule through March 31, 2010, based on public, Congressional, and non-
governmental organization requests for NMFS to wait to complete any 
related final rulemaking until after the March 2010 meeting regarding 
the Convention on the International Trade in Endangered Species of Wild 
Flora and Fauna, and until the 2010 publication of new research.
    NMFS delayed issuing a final rule pending a new ICCAT BFT stock 
assessment and subsequent ICCAT recommendation on BFT conservation and 
management in 2010, as well as the decision on a May 2010 petition to 
list BFT as threatened or endangered under the Endangered Species Act 
(ESA). In May 2011, NMFS determined that listing BFT as threatened or 
endangered under the ESA was not warranted, but listed BFT as a species 
of concern. NMFS will revisit the status of BFT under the ESA in 2013. 
Because the

[[Page 74004]]

concerns that led to NMFS addressing the BFT regulations in the 2009 
proposed rule still exist, NMFS is now taking this final action.

Changes From the Proposed Rule

    In the proposed rule, with regard to the General category January 
subquota, NMFS proposed to allow, annually, the General category to 
remain open from January 1 until the January subquota is determined to 
be fully harvested, rather than have a set period from January 1 
through January 31, as allowed under the current regulations. To effect 
this change, NMFS proposed to adjust the time period for which the 
January subquota would be available, such that it would begin January 1 
and end when the January subquota is projected to be reached, or May 
31, whichever comes first. NMFS indicated that the action likely would 
lengthen the General category season only by a few weeks, with the 
duration of the extension dependent on weather conditions and 
availability of large medium and giant BFT to the fishery during the 
winter months.
    As described in the Comments and Responses section below, following 
consideration of public comment on the potential impacts of extending 
the General category season through May of each year, NMFS has decided 
that the General category season should remain open until the January 
subquota is reached or March 31, whichever happens first, rather than 
May 31, as originally proposed. This action is within the scope of 
alternatives analyzed in the draft EA.

Provisions Implemented in This Final Rule

Adjustment of the General Category Maximum Possible Daily Retention 
Limit
    NMFS implements in this final rule an increase to the General 
category maximum possible daily retention limit to five fish per 
vessel. NMFS may increase or decrease the actual allowed daily 
retention limit of large medium and giant BFT over a range from zero to 
a maximum of five per vessel via inseason action based on the 
determination criteria and other relevant factors provided under Sec.  
635.27(a)(8):
    (i) The usefulness of information obtained from catches in the 
particular category for biological sampling and monitoring of the 
status of the stock.
    (ii) 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.
    (iii) 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.
    (iv) The estimated amounts by which quotas for other gear 
categories of the fishery might be exceeded.
    (v) Effects of the adjustment on BFT rebuilding and overfishing.
    (vi) Effects of the adjustment on accomplishing the objectives of 
the fishery management plan.
    (vii) Variations in seasonal distribution, abundance, or migration 
patterns of BFT.
    (viii) Effects of catch rates in one area precluding vessels in 
another area from having a reasonable opportunity to harvest a portion 
of the category's quota.
    (ix) Review of dealer reports, daily landing trends, and the 
availability of the BFT on the fishing grounds.

Adjustment of the General Category Season

    NMFS implements an adjustment to the regulation that specifies the 
time period for which the General category January subquota is 
available, such that the period that begins January 1 would end upon 
the effective date of a closure notice that NMFS would file with the 
Office of the Federal Register when the quota apportioned to the period 
that begins January 1 is projected to be reached, or March 31, 
whichever comes first. In the future, NMFS will publish a closure 
action for the General category January subquota in the Federal 
Register, if necessary to close the fishery prior to March 31.

Adjustment of the Harpoon Category Daily Incidental Retention Limit

    NMFS implements an increase to the Harpoon category daily 
incidental retention limit of large medium BFT from two to four per 
vessel. This action is intended to provide Harpoon category vessels a 
reasonable opportunity to harvest the allocated Harpoon category quota 
in its designated time frame (June 1 through November 15 of each year) 
and minimize the potential for dead discards to the extent practicable.

Comments and Responses

    NMFS received approximately 6,000 written comments, the majority of 
which were sent through a campaign by a non-governmental organization 
(NGO) representing environmental interests. Fifteen letters were sent 
by individuals or organizations (including fishing industry, fishery 
management council, state, and NGOs), and oral comments were received 
from the approximately 15 attendees of public hearings in Gloucester, 
MA, and Silver Spring, MD. NMFS considered all comments received, and 
below, responds to comments made on the proposed rule. Similar or same 
comments from multiple individuals are grouped together by subject. In 
addition, NMFS received comments on issues that were not part of this 
rulemaking. These comments are summarized under ``Other Issues'' below.
    Comment 1: The justification and rationale for an increase in the 
Harpoon category daily retention limit of large medium BFT is not valid 
(i.e., the premise that catch has consistently been under the quota is 
not correct). In 2009, the Harpoon category BFT landings exceeded the 
baseline quota, and even with the 2009 adjustment to the baseline 
quota, 25 mt had to be transferred from the Reserve category in August 
2009 to ensure that the harpooners did not exceed their quota. We take 
issue with NMFS' statement that ``While the recreational Angling 
category and the commercial Longline category have been able to fill 
their subquotas in recent years, the commercial handgear categories 
(General and Harpoon) have not.'' Furthermore, the 2010 quota is the 
lowest in nearly three decades, and starting next year, roll-over of 
underage will be limited to 10 percent of the baseline quota.
    Response: NMFS is required under the Magnuson-Stevens Act and ATCA 
to provide U.S. fishing vessels with a reasonable opportunity to 
harvest the ICCAT recommended quota. For the General and Harpoon 
categories, on average, recent landings have been less than either the 
base or adjusted quotas. Over the last three years, the General 
category landed an average of 77 percent of its base quota and 60 
percent of its adjusted quota, while the Harpoon category landed an 
average of 68 percent of its base quota and 44 percent of its adjusted 
quota. This action provides NMFS the option to implement a wider range 
of daily retention limits to facilitate the harvest of the available 
U.S. BFT quota, if conditions warrant. Use of such flexibility through 
the implementation of the higher daily retention limits for the General 
category will be contingent upon the availability of quota and subject 
to the determination criteria and other relevant factors outlined in 
Sec.  635.27 (a)(8). The August 28, 2009, transfer to the Harpoon 
category (74 FR 44298) was conducted in accordance with the criteria 
mentioned above.
    Comment 2: The reasoning underlying the proposed rule is flawed, as 
evidenced by NMFS' statement that ``These three effort controlling 
actions

[[Page 74005]]

would affect only when and where BFT mortality occurs, and not the 
magnitude.'' The measures are intended to facilitate the utilization of 
the U.S. quota, and will increase BFT fishing mortality in addition to 
affecting the timing and location of catch, and therefore NMFS should 
not implement the proposed measures.
    Response: NMFS has determined that, when evaluating the effect of 
management measures, it is important to consider time scales as they 
relate to the action under consideration. Relevant scientific 
information, ICCAT recommendations (e.g., quotas), and the Consolidated 
HMS FMP are structured principally on an annual basis. Although on a 
particular fishing day, a vessel may catch more or fewer BFT, the 
maximum fishing mortality is capped by the annual quota. This rule 
modifies neither the annual quota, nor the fishing mortality associated 
with that quota. Given the variability of the location of BFT, a higher 
daily retention limit may enable better alignment of catch with fish 
availability, while not increasing overall catch.
    Comment 3: Even if catch is within the ICCAT established quota, 
that level of catch could lead to accelerated stock declines and 
further compromise the rebuilding program. NMFS should end overfishing 
and minimize bycatch. Limiting fishing mortality is even more important 
now that the Convention on International Trade in Endangered Species of 
Wild Fauna and Flora (CITES) opted not to prohibit international trade 
of BFT.
    Response: NMFS agrees that limiting fishing mortality is important. 
NMFS does so within the limits of the ICCAT-recommended quota and in 
implementing its Magnuson-Stevens Act and ATCA obligations. The 2011 
U.S. quota is consistent with the current ICCAT recommended total 
allowable catch, which is expected to allow for continued BFT stock 
growth under both the low and high stock recruitment scenarios 
considered by ICCAT's Standing Committee on Research and Statistics 
(SCRS). NMFS implements numerous regulatory measures and collects 
commercial landings data on a daily basis to ensure available quotas 
are not exceeded. Using its inseason management authority, NMFS will be 
able to monitor and make adjustments to the commercial fishery in a 
timely manner (close to `real time'), as commercial data are required 
to be submitted within 24 hours of landing. Although BFT was not listed 
under CITES in 2010, international trade is highly regulated consistent 
with ICCAT requirements.
    Comment 4: Increasing the daily retention limit could have negative 
economic consequences as the flood of fish on the market would likely 
lower the ex-vessel price of the fish.
    Response: NMFS believes it is unlikely that any potentially 
implemented increase in the BFT daily retention limit would have 
significant, negative economic impacts on the ex-vessel price. The 
price for BFT exported to Japan is dependent on a number of factors, 
including: Quality, size, and global supply of BFT at the time. 
Increased revenues would depend on availability of large medium and 
giant BFT to the fishery, as well as the daily retention limit set by 
NMFS through inseason action. In 2010, 404 trips (20 percent of 
successful trips) landed three large medium or giant BFT. If each of 
these 404 trips landed five large medium or giant BFT instead of three, 
a total of 808 additional fish would have been landed (over the course 
of the fishing year under a limit of five fish). If the General 
category retention limit were increased to five for any portion of the 
fishing year, this action also could have positive socioeconomic 
impacts by allowing vessels to extend their range while remaining 
profitable.
    Comment 5: The General category should not have a retention limit. 
NMFS should implement Alternative A3 (elimination of the maximum daily 
retention limit).
    Response: Retention limits for the General category are necessary 
to ensure that the General category landings do not exceed their 
allocated proportion of the U.S. quota established in the Consolidated 
HMS FMP. Furthermore, retention limits allow NMFS to distribute fishing 
opportunities both temporally and geographically, thereby ensuring 
fishing in one area does not preclude opportunities in other areas. For 
these reasons, NMFS is not implementing the commenter's recommendation.
    Comment 6: Increasing the General category trip limit to five large 
medium or giants would allow vessels capable of fishing further 
offshore to take advantage of the opportunity to do so if market 
conditions and weather permit. The increase in maximum daily retention 
limit should allow additional flexibility and a more reasonable 
opportunity for the General category to catch its share of the U.S. 
quota. NMFS should also increase the daily retention of large medium 
BFT in the Harpoon category to four per vessel.
    Response: In this final rule, NMFS implements an increase to the 
maximum possible General category BFT daily retention limit to five 
fish per vessel as well as an increase to the daily incidental 
retention limit of large medium BFT from two to four per vessel. This 
action is intended to enable more thorough utilization of the available 
U.S. BFT quota for the General and Harpoon categories, minimize bycatch 
and bycatch mortality to the extent practicable, expand fishing 
opportunities for participants in the commercial winter General 
category fishery, and increase NMFS' flexibility for setting the 
General category retention limit depending on available quota.
    Comment 7: The North Carolina Division of Marine Fisheries supports 
the proposed action to allow full access to the January subquota. The 
BFT fishery is very important to coastal North Carolina fishing 
communities during the winter months.
    Response: The Agency is aware of the importance of the winter BFT 
fishery. NMFS agrees that enhanced access to the January subquota is 
warranted. Increasing access to the January subquota through March 31 
will allow additional opportunities to harvest the available January 
subquota, reduce the potential for late spring gear conflict between 
fishery participants, and mitigate the potential impacts of any 
additional fishing effort during months previously unfished. This 
measure will provide participants in this region with an interest in 
harvesting BFT a reasonable opportunity to harvest the available quota 
consistent with the goals of the Consolidated HMS FMP.
    Comment 8: NMFS should establish equal monthly General category 
time periods and subquotas (Alternative B3) rather than increasing the 
maximum retention limit to 5 fish (Alternative A2). The expanded 
seasonal opportunities of Alternative B3 far outweigh the benefits of 
high retention limits that often result in lower product quality and 
shorter seasons. Fishermen from all states would be equal and capable 
of traveling to wherever the BFT are. Alternative B3 does not 
discriminate between residents of different states, is fair and 
equitable to all such fishermen, is reasonably calculated to promote 
conservation, and does not allow any individuals, entities, or states 
to acquire an excessive share of BFT fishing privileges, as required by 
the Magnuson-Stevens Act.
    Response: Alternative B3 (dividing the General category allocations 
equally between months) was not selected because the potential negative 
social and economic impacts outweigh the positive impacts and because 
NMFS believes the topic of quota allocation merits further 
consideration and analyses. The negative aspects of this

[[Page 74006]]

alternative are the potential for gear conflicts and a derby fishery, 
as well as the potential for the historical geographic distribution of 
the fishery to be dramatically altered. Although this alternative would 
provide some stability to the fishery by establishing a known amount of 
quota that would be available at the first of each month, if catch 
rates are high in the early portion of the month, these quotas could be 
harvested rapidly and may lead to derby style fisheries on the first of 
each month. The preferred alternative (B2b) provides additional fishing 
opportunities within available quotas while acknowledging the 
traditional fishery. Current regulations do not preclude General 
category vessels from traveling from one area to another.
    Comment 9: The characteristics of BFT foraging aggregations make 
them susceptible to high levels of fishing mortality. In some 
instances, the majority of an entire cohort can be taken in a spatially 
and temporally discrete region and period, respectively. A large number 
of General category vessels with an increased limit in the middle of a 
large and aggressively feeding group of BFT could result in near 
elimination of that group, potentially having widespread age and/or 
genetic impacts on the stock.
    Response: NMFS manages the General category BFT fishery principally 
through the overall General category quota and time period subquotas. 
Assuming there is no significant change in the selectivity of the 
fishery, the action would be consistent with ICCAT recommendations and 
stock assessments.
    Comment 10: Although allowing the General category January subquota 
to be fished through May 31 will likely extend the season by a month or 
less, based on recent mortality information and available quota, 
concerns remain that this action would infringe on the de facto time-
area closure that currently exists from February 1 through May 31. The 
majority of fish available to the fishery during this period are off 
the coast of the mid-Atlantic, and recent research has shown that these 
fish are primarily adolescents, interspersed with mature western BFT on 
their way to the Gulf of Mexico to breed. This aggregation therefore 
has a high reproductive value because the fish are within a year or two 
of spawning, or even more importantly, are in the middle of their 
migration to the spawning ground, and warrant heightened protection. As 
immigration of eastern BFT has decreased due to overfishing in the 
Mediterranean Sea, there has likely been a shift in frequency of the 
mid-Atlantic aggregation towards more fish of western origin. 
Increasing mortality in the region would therefore counter rebuilding 
of the western population.
    Response: NMFS agrees with the commenter that the action would 
likely effectively lengthen the General category season by only a few 
weeks. The duration of the actual extension would depend on weather 
conditions and availability of large medium and giant BFT to the 
fishery during the winter months. NMFS has taken this comment into 
consideration and has modified the end date of the duration of access 
to the January subquota from May 31 to March 31. As indicated above, 
this is expected to mitigate any potential impacts to the species of 
any additional fishing effort during months previously unfished, as 
well as reduce the potential for late spring gear conflict between 
fishery participants (i.e., if General category fishing activity 
continues through May while the Harpoon category must wait until June 1 
to begin fishing).

Other Issues

    NMFS received comments on the issues outlined under the six 
subheadings below. These suggestions are beyond the scope of this 
rulemaking. However, NMFS is undertaking a comprehensive review of BFT 
management to determine whether existing management measures need to be 
adjusted more broadly to meet the multiple goals for the BFT fishery, 
and these issues may be considered through future actions.
1. Reduction of Minimum Size
    NMFS should consider lowering the minimum fish size to 65 inches 
for the General and Harpoon categories. Lowering of the minimum size 
could be achieved in a resource neutral fashion with a modest transfer/
sacrifice (possibly temporary, possibly permanent) of giant BFT quota 
to the medium category. It would still leave the United States with the 
largest minimum size of any ICCAT Contracting Party. Another commenter 
noted that the majority of available fish are currently 65 to 73 inches 
(curved fork length) and suggested that management should be modified 
to reflect this availability of smaller fish.
2. Modification of Pelagic Longline Trip Limits
    NMFS should have increased the incidental pelagic longline trip 
limits to a maximum of five fish with a directed catch of 12,000 lb. As 
interactions with BFT increase over the next several years, NMFS needs 
a plan for dealing with increased interactions in light of efforts to 
revitalize the pelagic longline fishery for swordfish.
3. Modification of Permit Category Restrictions and Quota Use
    NMFS should allow vessels in the General and Charter Headboat 
categories the opportunity to participate in both the Angling category 
and General category on the same trip or fishing day. The conservative 
U.S. quotas protect the resource and the mandate of the Magnuson-
Stevens Act and ATCA is to provide maximum opportunities to catch these 
quotas. NMFS also received comment that because of the current 
inactivity of at least two of the purse seine vessels, the associated 
purse seine quota should be used to account for pelagic longline 
discards and NMFS should allow increased incidental landings of BFT by 
longlines. NMFS should authorize the use of harpoon gear by Charter/
Headboat category vessels when they do not have paying passengers 
onboard.
4. General Category Season
    NMFS should reopen the General category fishery in May instead of 
June.
5. Elimination or Curtailment of the BFT Fishery
    NMFS received comment that the entire BFT fishery should be closed, 
that pelagic longlining in the Gulf of Mexico should be prohibited at 
all times, or that pelagic longlining in the Gulf of Mexico should be 
prohibited during the spawning period (last week of April through first 
week of June), or from March to September.
6. Validity of Current Quota
    NMFS received comment that evaluation of the proposed measures with 
respect to the current quotas would result in an incorrect conclusion, 
due to an underlying concern that the current quota is not valid, due 
to a retrospective pattern in the stock assessment. Specifically, the 
comment states that if the United States had been catching its quota in 
recent years, the western BFT biomass would be approximately 30 percent 
lower than its already depleted current level. It follows that this 
rule could lead to accelerated declines and compromise the ICCAT 
rebuilding program even more than it has already been compromised.

Classification

    The Assistant Administrator for Fisheries, NMFS, has determined 
that this final action is consistent with the Magnuson-Stevens Act, 
ATCA, and

[[Page 74007]]

other applicable law, and is necessary to achieve domestic management 
objectives under the Consolidated HMS FMP.
    The Assistant Administrator for Fisheries (AA) finds good cause 
under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for 
this action. This wavier applies only to those provisions related to 
the General category fishery. This action would increase the General 
category maximum possible BFT daily retention limit from three to five 
fish (with limit adjustments to be executed via inseason actions as 
appropriate following consideration of determination criteria at Sec.  
635.27(a)(8)). It also increases NMFS' flexibility and range for 
setting the General category retention limit depending on available 
quota. This action would also extend the duration of time over which 
General category participants may fish the available General category 
January subquota, from January 1 through January 31 to January 1 
through March 31 of each year. These provisions are consistent with 
ICCAT recommendations and the Consolidated HMS FMP and provide the 
General category BFT fishery with potential beneficial economic 
impacts. If these provisions are delayed to allow for the 30-day delay 
in implementation, the General category BFT fishery would open on 
January 1, 2012, but would be limited to the current January timeframe 
and retention limit range. This would prevent the fishery from fully 
realizing the economic benefits of this rule. For these reasons, the AA 
finds good cause to waive the 30-day delay in effectiveness.
    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 is, consistent with the Consolidated HMS FMP 
objectives, the Magnuson-Stevens Act, ATCA, and other applicable law, 
to adjust regulations for the BFT commercial handgear fisheries. This 
action is intended to enable more thorough utilization of the available 
U.S. BFT quota for the General and Harpoon categories; minimize bycatch 
and bycatch mortality to the extent practicable; expand fishing 
opportunities for participants in the commercial winter General 
category fishery; and increase NMFS' flexibility for setting the 
General category retention limit depending on available quota.
    Section 604(a)(2) of the RFA requires agencies to summarize 
significant issues raised by the public in response to the IRFA, a 
summary of 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 (74 FR 57128, 
November 4, 2009) during the comment period. A summary of these 
comments and the Agency's responses are included in Chapter 14 of the 
EA/RIR/FRFA and are included in this final rule. Although NMFS did not 
receive comment specifically on the IRFA, NMFS received some comments 
expressing concern that increasing the General category daily retention 
limit could have negative economic consequences from oversupplying the 
market, which could result in lower ex-vessel prices. For more 
information, see comment 4 in the section entitled ``Comments 
and Responses.''
    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, 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. These are the Small Business Administration 
(SBA) size standards for defining a small versus large business entity 
in this industry. As shown in Table 7 of the EA/RIR/FRFA, for 2008 
there were 9,871 vessels permitted to land and sell BFT under four 
commercial BFT quota categories (including charter/headboat vessels), 
with 4,721 vessels in the General category, 4,827 in the Charter/
Headboat category, and 26 in the Harpoon category. For 2010, 8,052 
vessels were permitted to land and sell BFT under four commercial BFT 
quota categories (including charter/headboat vessels), with 3,849 
vessels in the General category, 4,174 in the Charter/Headboat 
category, and 29 in the Harpoon category.
    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 Regulatory Flexibility Act (5 U.S.C. 603 (c) (1)-(4)) 
lists four general categories of ``significant'' alternatives that 
would assist an agency 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 
Magnuson-Stevens Act, ATCA, and the ESA, NMFS cannot establish 
differing, or clarifications, consolidations, or simplifications to, 
compliance requirements for small entities or exempt small entities 
from compliance requirements. Thus, there are no alternatives discussed 
that fall under the first, third, 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.
    The alternatives considered and analyzed are described below. The 
IRFA indicated that in 2008, the annual gross revenues from the 
commercial BFT fishery were approximately $5.0 million. The commercial 
quota categories and their 2008 gross revenues were General ($4.0 
million), Harpoon ($313,781), Purse Seine ($0), and

[[Page 74008]]

Longline ($722,016). Using data from 2010, the year for which the most 
recent, complete revenue data are available, the annual gross revenues 
from the commercial BFT fishery were approximately $8.9 million. The 
commercial categories and their 2010 gross revenues are General ($7.8 
million), Harpoon ($202,643), Purse Seine ($0), and Longline 
($878,908).

General Category Maximum Daily Retention Limit

    Alternative A1, the status quo alternative, would maintain the 
current maximum daily retention limit of three large medium BFT. The 
status quo alternative could result in negative economic impacts to the 
extent that the daily retention limit may constrain large medium and 
giant BFT landings. The inability of the General category to land and 
sell its full allotted quota results in decreased optimum yield.
    Alternative A2, an increase in the maximum possible daily retention 
limit to five fish per vessel, could have positive economic impacts if 
NMFS sets the daily retention limit to four or five fish via inseason 
action, due to the increased potential to land additional large medium 
and giant BFT rather than discarding fish in excess of the current 
maximum daily retention limit (e.g., if a fourth commercial size BFT is 
caught in one day). The IRFA indicated that, based on 2008 data, ex-
vessel revenues per trip could increase on average by approximately 
$8,500 per active vessel (2 fish x the 2008 average fish weight of 500 
lb x $8.44 General category ex-vessel average price/lb), depending on 
availability of large medium and giant BFT to the fishery. Using 2010 
data, ex-vessel revenues per trip could increase on average by 
approximately $5,250 per active vessel (2 fish x the 2010 average fish 
weight of 379 lb x $6.93 General category ex-vessel average price/lb), 
depending on availability of large medium and giant BFT to the fishery. 
Allowing a higher maximum daily retention limit could also reduce the 
trip costs per fish landed, and thus improve profitability of trips 
when additional fish are available. Alternative A2 is the preferred 
alternative, as it would increase opportunities for General and 
Charter/Headboat category vessels within the General category quota, 
which is set consistent with ICCAT recommendations and the Consolidated 
HMS FMP.
    Alternative A3, elimination of the maximum daily retention limit, 
would have positive economic impacts associated with the increased 
potential to land all large medium and giant BFT in excess of the 
current maximum daily retention limit rather than discarding them. 
Although this alternative would provide the most positive economic 
impacts, it is not preferred because of the potential negative 
ecological impact of a relatively large potential increase in BFT 
mortality, including undersized fish.

General Category Season

    Under Alternative B1, the status quo alternative, the General 
category season would end on January 31 of each fishing year or when 
the General category January subquota is harvested, whichever happens 
first. Under this alternative, NMFS anticipates neutral impacts on 
General and Charter/Headboat category vessels.
    Under both Alternative B2, as proposed, and preferred Alternative 
B2b, which would allow the General category to remain open until the 
date NMFS determines that the available January subquota has been 
reached (or is projected to be reached) or March 31, whichever happens 
first, NMFS anticipates that overall economic impacts of this 
alternative to the General category and Charter/Headboat BFT fishery as 
a whole would be neutral since the same overall amount of the General 
category quota would be landed and the value of the General category 
quota would not be changed. However, General category fishermen in the 
southern region (more than 1,000 vessels) would be positively affected 
by this alternative as it would allow increased opportunities to land 
and sell BFT commercially and increased utilization of existing 
investment in gear and equipment, especially if quota is still 
available for harvest after January 31.
    Under Alternative B3, which would establish a January through 
December General category season and establish 12 equal monthly General 
category time periods and subquotas (of 8.3 percent each), resulting 
impacts would be mixed, but positive overall. Winter fishery 
participants would benefit from increased opportunities to harvest 
large medium and giant BFT, if available, during the months of February 
through March. General category and Charter/Headboat category 
participants in the New England area, or those participants that pursue 
BFT in the summer months, might experience some adverse economic 
impacts due to the shift in quota to the earlier (winter) portion of 
the season. However, these effects would be mitigated by the effects of 
the carrying forward of unharvested quota from one time period to the 
next. This is not the preferred alternative at this time as NMFS 
believes the topic of quota allocation merits further consideration and 
analyses.

Harpoon Category Daily Incidental Retention Limit

    Alternative C1, the status quo alternative, would maintain the 
current incidental daily retention limit of two large medium BFT. The 
status quo alternative could result in negative economic impacts to the 
extent that the incidental limit constrains large medium BFT landings. 
The inability of the Harpoon category to land and sell its full 
allotted quota results in decreased optimum yield.
    Alternative C2, an increase in the incidental daily retention limit 
to four large medium BFT, would have positive economic impacts 
associated with the increased potential to land additional large medium 
BFT rather than discarding fish in excess of the current incidental 
limit (e.g., if a third large medium is caught while pursuing giant 
BFT). The IRFA indicated that, based on 2008 data, ex-vessel revenues 
per trip could increase on average by approximately $4,600 per active 
vessel (2 fish x the 2008 average Harpoon category fish weight of 360 
lb x $6.36 Harpoon category ex-vessel average price/lb), depending on 
availability of large medium BFT to the fishery. Using 2010 data, ex-
vessel revenues per trip could increase on average by approximately 
$3,000 per active vessel (2 fish x the 2010 average Harpoon category 
fish weight of 260 lb x $5.75 Harpoon category ex-vessel average price/
lb), depending on availability of large medium BFT to the fishery. 
Allowing a higher daily incidental retention limit could also reduce 
the trip costs per fish landed, and thus improve profitability of trips 
when additional fish are available. Alternative C2 is the preferred 
alternative as it would increase opportunities for Harpoon category 
vessels to land the Harpoon category quota while balancing concerns 
regarding BFT stock health.
    Alternative C3, elimination of the incidental limit, would have 
positive economic impacts associated with the increased potential to 
land all large medium BFT in excess of the current incidental limit 
rather than discarding them. Although this alternative would provide 
the most positive economic impacts, it is not preferred because of the 
potential negative ecological impact of a relatively large potential 
increase in large medium BFT mortality.
    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

[[Page 74009]]

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. 
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.

    Dated: November 23, 2011.
Eric C. Schwaab,
Assistant Administrator for Fisheries, 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

0
1. The authority citation for part 635 continues to read as follows:

    Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.


0
2. In Sec.  635.23, paragraphs (a)(4) and (d) are revised to read as 
follows:


Sec.  635.23  Retention limits for BFT.

* * * * *
    (a) * * *
    (4) To provide for maximum utilization of the quota for BFT, NMFS 
may increase or decrease the daily retention limit of large medium and 
giant BFT over a range from zero (on RFDs) to a maximum of five per 
vessel. Such increase or decrease will be based on the criteria 
provided under Sec.  635.27(a)(8). NMFS will adjust the daily retention 
limit specified in paragraph (a)(2) of this section by filing an 
adjustment with the Office of the Federal Register for publication. In 
no case shall such adjustment be effective less than 3 calendar days 
after the date of filing with the Office of the Federal Register, 
except that previously designated RFDs may be waived effective upon 
closure of the General category fishery so that persons aboard vessels 
permitted in the General category may conduct tag-and-release fishing 
for BFT under Sec.  635.26.
* * * * *
    (d) Harpoon category. Persons aboard a vessel permitted in the 
Atlantic Tunas Harpoon category may retain, possess, or land an 
unlimited number of giant BFT per day. An incidental catch of only four 
large medium BFT per vessel per day may be retained, possessed, or 
landed.
* * * * *

0
3. In Sec.  635.27, paragraph (a)(1)(i)(A) is revised to read as 
follows:


Sec.  635.27  Quotas.

    (a) * * *
    (1) * * *
    (i) * * *
    (A) January 1 through the effective date of a closure notice filed 
by NMFS announcing that the January subquota is reached, or projected 
to be reached under Sec.  635.28(a)(1), or until March 31, whichever 
comes first--5.3 percent (25.2 mt);
* * * * *
[FR Doc. 2011-30726 Filed 11-29-11; 8:45 am]
BILLING CODE 3510-22-P