Atlantic Highly Migratory Species; 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan; Amendment 7, 71509-71608 [2014-28064]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 79, Number 231 (Tuesday, December 2, 2014)]
[Rules and Regulations]
[Pages 71509-71608]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-28064]



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Vol. 79

Tuesday,

No. 231

December 2, 2014

Part II





Department of Commerce





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National Oceanic and Atmospheric Administration





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15 CFR Part 902

50 CFR Part 635





Atlantic Highly Migratory Species; 2006 Consolidated Atlantic Highly 
Migratory Species (HMS) Fishery Management Plan; Amendment 7; Final 
Rule

Federal Register / Vol. 79 , No. 231 / Tuesday, December 2, 2014 / 
Rules and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 635

[Docket No. 120328229-4949-02]
RIN 0648-BC09


Atlantic Highly Migratory Species; 2006 Consolidated Atlantic 
Highly Migratory Species (HMS) Fishery Management Plan; Amendment 7

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

ACTION: Final rule.

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SUMMARY: This final rule implements Amendment 7 to the 2006 
Consolidated Atlantic Highly Migratory Species Fishery Management Plan 
(2006 Consolidated HMS FMP) to ensure sustainable management of bluefin 
tuna consistent with the 2006 HMS FMP and address ongoing management 
challenges in the Atlantic bluefin tuna fisheries. This final rule also 
implements minor regulatory changes related to the management of 
Atlantic HMS. Amendment 7 management measures were developed by NMFS 
under the authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention 
Act (ATCA). This final rule: Allocates U.S. bluefin tuna quota among 
domestic fishing categories; implements measures applicable to the 
pelagic longline fishery, including Individual Bluefin Quotas (IBQs), 
two new Gear Restricted Areas, closure of the pelagic longline fishery 
when annual bluefin tuna quota is reached, elimination of target catch 
requirements associated with retention of incidental bluefin tuna in 
the pelagic longline fishery, mandatory retention of legal-sized 
bluefin tuna caught as bycatch, expanded monitoring requirements, 
including electronic monitoring via cameras and bluefin tuna catch 
reporting via Vessel Monitoring System (VMS), and transiting provisions 
for pelagic and bottom longline vessels; requires VMS use and reporting 
by the Purse Seine category; changes the start date of the Purse Seine 
category from July 15 to a date within a range of June 1 to August 15, 
to be established by an annual action; requires use of the Automated 
Catch Reporting System by the General and Harpoon categories; provides 
additional flexibility for inseason adjustment of the General category 
quota and Harpoon category retention limits; and changes the allocation 
of the Angling category Trophy South subquota for the Gulf of Mexico. 
Finally, this rule implements several measures not directly related to 
bluefin tuna management, including a U.S. North Atlantic albacore tuna 
quota; modified rules regarding permit category changes; and minor 
changes in the HMS regulations for administrative or clarification 
purposes.

DATES: Effective January 1, 2015, except for Sec.  635.9(b)(2)(ii), 
(e)(1), which are effective June 1, 2015; and Sec.  635.15(b)(3), 
(b)(4)(ii), and (b)(5)(i), which are effective January 1, 2016.

ADDRESSES: Copies of Amendment 7 to the 2006 Consolidated HMS FMP, 
including the Final Environmental Impact Statement (FEIS), and other 
relevant documents are available from the HMS Management Division Web 
site at https://www.nmfs.noaa.gov/sfa/hms/.

FOR FURTHER INFORMATION CONTACT: Thomas Warren or Brad McHale at 978-
281-9260.

SUPPLEMENTARY INFORMATION: The U.S. Atlantic tuna fisheries are managed 
under the 2006 Consolidated HMS FMP and regulations at 50 CFR part 635, 
pursuant to the authority of the Magnuson-Stevens Act and ATCA. Under 
ATCA, the Secretary shall promulgate such regulations as may be 
necessary and appropriate to carry out International Commission for the 
Conservation of Atlantic Tunas (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, NOAA (AA). On October 2, 2006, NMFS published in the Federal 
Register (71 FR 58058) final regulations, effective November 1, 2006, 
implementing the 2006 Consolidated HMS FMP, which details the 
management measures for Atlantic HMS fisheries, including the 
incidental and directed Atlantic bluefin tuna fisheries.

Background

    A brief summary of the background of this final action is provided 
below. A more detailed history of the development of these regulations, 
and the alternatives considered, are described in Amendment 7 to the 
2006 Consolidated HMS FMP Final Environmental Impact Statement 
(Amendment 7 FEIS, August, 2014), which can be found online at the HMS 
Web site noted above.
    NMFS published a proposed rule on August 21, 2013 (78 FR, 52032), 
which proposed the ``preferred alternatives'' analyzed in the Draft 
Amendment 7 Environmental Impact Statement and solicited public 
comments on the measures, which were designed to address the following 
objectives: (1) Prevent overfishing of and rebuild bluefin tuna stock, 
achieve on a continuing basis optimum yield, and minimize bluefin 
bycatch to the extent practicable by ensuring that domestic bluefin 
tuna fisheries continue to operate within the overall total allowable 
catch (TAC) set by ICCAT consistent with the existing rebuilding plan; 
(2) optimize the ability for all permit categories to harvest their 
full bluefin quota allocations, account for mortality associated with 
discarded bluefin in all categories, maintain flexibility of the 
regulations to account for the highly variable nature of the bluefin 
fisheries, and maintain fairness among permit/quota categories; (3) 
reduce dead discards of bluefin tuna and minimize reductions in target 
catch in both directed and incidental bluefin fisheries, to the extent 
practicable; (4) improve the scope and quality of catch data through 
enhanced reporting and monitoring to ensure that landings and dead 
discards do not exceed the quota and to improve accounting for all 
sources of fishing mortality; and (5) adjust other aspects of the 2006 
Consolidated HMS FMP as necessary and appropriate, including northern 
albacore tuna quota implementation.
    On August 22, 2013 (78 FR 52123), NMFS published a notice in the 
Federal Register informing the public of the date and locations of 
public hearings on Amendment 7. From August 2013 to January 2014, NMFS 
conducted 11 public hearings, and consulted with the New England 
Fishery Management Council, the Gulf of Mexico Management Council, and 
the South Atlantic Fishery Management Council. The hearings were held 
in diverse locations in Atlantic and Gulf of Mexico coastal states. On 
August 30, 2013, the Environmental Protection Agency published a Notice 
of Availability of the draft environmental impact statement (DEIS) (78 
FR 53754; August 30, 2013).
    The August 21, 2013, Amendment 7 proposed rule set the end of the 
public comment period as October 23, 2013, but given the length and 
complexity of the rule, and to provide additional time for 
consideration of public comments in light of the November meeting of 
ICCAT, the end of the comment period was extended to December 10, 2013 
(78 FR 57340; September 18, 2013). Subsequently, due to the government 
shutdown in October 2013, and NMFS' inability to respond to 
constituents

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during that time frame and based on requests for an extension due to 
the complexity of the measures covered in the DEIS, NMFS again extended 
the end of the public comment period until January 10, 2014, to provide 
additional opportunity for informed comment (78 FR 75327; December 11, 
2013). On December 26, 2013, NMFS published a Federal Register notice 
announcing a public hearing conference call and webinar to provide 
additional opportunity for the public from all geographic areas to 
comment (78 FR 78322).
    The comments received on Draft Amendment 7 and its proposed rule, 
and responses to those comments, are summarized below in the section 
labeled ``Response to Comments.''
    The bluefin tuna fishery is managed principally through a quota. 
Currently, NMFS implements and codifies the ICCAT-recommended U.S. 
quota through rulemaking, annually or bi-annually depending on the 
length of the relevant ICCAT recommendation. Also through rulemaking 
(the ``quota specifications process'') NMFS annually adjusts the U.S. 
baseline bluefin quota to account for any underharvest or overharvest 
of the adjusted U.S. quota from the prior year; specifies subquotas 
that result from application of the 2006 Consolidated HMS FMP 
allocations; and adjusts subquotas as appropriate following 
consideration of domestic management needs. NMFS must account not only 
for landings but for bluefin tuna discarded dead. NMFS estimates and 
accounts for dead discards in the pelagic longline fishery, which 
cannot target bluefin tuna but catches them while targeting swordfish 
and other tunas.
    National Standard 1 requires that ``conservation and management 
measures shall prevent overfishing while achieving, on a continuing 
basis, the optimum yield from each fishery for the United States 
fishing industry.'' The Magnuson-Stevens Act defines ``optimum yield'' 
as the amount of fish that, among other things, provides for rebuilding 
to a level consistent with producing the maximum sustainable yield from 
the fishery. In ATCA, Congress also directed NMFS to manage the bluefin 
fishery to ensure that NMFS provides U.S. fishing vessels ``with a 
reasonable opportunity to harvest such allocation, quota, or at such 
fishing mortality level. . . .'' This rule builds upon an extensive 
regulatory framework for management of the domestic bluefin fishery 
pursuant to the 20-year rebuilding program adopted in the 1999 FMP and 
continued under the 2006 Consolidated HMS FMP. As described below, the 
final rule measures were designed to allow fishery participants to 
fully harvest, but not exceed, the U.S. bluefin quota by refining the 
existing management tools. NMFS is implementing a detailed, multi-level 
approach to resolving challenges in administering and carrying out the 
current quota system, which, if left unaddressed, may otherwise result 
in overharvests of the U.S. quota in the future. These final rule 
measures directly support the goals of reducing overfishing, rebuilding 
the western bluefin stock, and achieving optimum yield by ensuring that 
the fishery continues to be managed within the ICCAT-approved TAC, and 
consistent with National Standard 1's requirements.

Northern Albacore Tuna

    Amendment 7 also includes measures for management of north Atlantic 
albacore (or ``northern albacore'') tuna. Since 1998, ICCAT has adopted 
recommendations regarding the northern albacore tuna fishery. A multi-
year management measure for northern albacore tuna was first adopted in 
2003, setting the TAC at 34,500 mt. ICCAT's Standing Committee on 
Research and Statistics (SCRS) assessed the northern albacore tuna 
stock in 2009 and concluded that the stock continues to be overfished 
with overfishing occurring, recommending a level of catch of no more 
than 28,000 mt to meet ICCAT management objectives by 2020. In 
response, in 2009 ICCAT established a North Atlantic albacore tuna 
rebuilding program via Recommendation 09-05, setting a 28,000mt TAC and 
including several provisions to limit catches by individual ICCAT 
parties (for major and minor harvesters) and reduce the amount of 
unharvested quota that could be carried forward from one year to the 
next, from 50 percent to 25 percent of a party's initial catch quota. 
The 2009 recommendation expired in 2011.
    In 2011, ICCAT Recommendation 11-04 again set a TAC of 28,000 mt 
for 2012 and for 2013 and contained specific recommendations regarding 
the North Atlantic albacore tuna rebuilding program, including an 
annual TAC for 2012 and 2013 allocated among the European Union, 
Chinese Taipei, the United States, and Venezuela. The U.S. quota for 
2012 and 2013 is 527 mt. The recommendation limits Japanese northern 
albacore tuna catches to 4 percent in weight of its total Atlantic 
bigeye tuna longline catch, and limits the catches of other ICCAT 
parties to 200 mt. The recommendation also specifies that quota 
adjustments for a given year's underharvest or overharvest may be made 
for either 2 or 3 years from the subject year (i.e., adjustments based 
on 2013 catches would be made in either 2015 or 2016). Pursuant to ATCA 
and the Magnuson-Stevens Act, in this final rule NMFS implements the 
ICCAT-recommended U.S. quota and establishes provisions to adjust the 
base quota for over or underharvests via annual quota specifications.

Implemented Measures

    The rule finalizes most of the management measures that were 
contained in the proposed rule for Amendment 7 as they were proposed, 
with several exceptions. This section provides a summary of the final 
management measures being implemented by Amendment 7 and notes certain 
changes from the proposed rule to this final rule that may be of 
particular interest to the regulated community. These include changes 
to the basis for annual purse seine quota availability, changes to two 
Gear Restricted Areas (GRAs), changes to the range of years used in the 
performance metrics and BFT quota allocations formula, changes to VMS 
requirements, and changed to effective dates. Measures that are 
different from the proposed rule, or measures that were proposed but 
not implemented, are described in detail in the section titled, 
``Changes from the Proposed Rule.''

1. Quota Reallocation

Codified Quota Reallocation

    The Longline category's percentage of the baseline U.S. bluefin 
tuna quota remains at 8.1 percent, but each year the Longline category 
quota will be increased by a net amount of 62.5 mt based on deductions 
from the other quota categories, to more fully and predictably account 
for Longline category incidental bluefin catch, including both dead 
discards and landings. This measure does not modify the previously-
codified category quota allocation percentages. Rather, NMFS will 
calculate the bluefin quota for each of the quota categories through 
the following process: First, 68 mt will be subtracted from the 
baseline annual U.S. BFT quota for reallocation to the Longline 
category quota. All quota categories will be reduced consistent with 
the allocation percentages codified at 50 CFR 635.27. Second, the 
remaining quota will be divided among the categories according to those 
allocation percentages. Third, the 68 mt derived in Step One from all 
categories, including the Longline category, will be added to the 
Longline category quota. The net

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amount of quota increase for the Longline category will be 62.5 mt.
    Thus, 32.0 mt will be deducted from the General category (i.e., 
47.1 percent of 68 mt), 2.7 mt from the Harpoon category (3.9 percent), 
12.6 mt from the Purse Seine category (18.6 percent), 5.5 mt from the 
Longline category (8.1 percent), 13.4 mt from the Angling category 
(19.7 percent), and 1.7 mt from the Reserve category (2.5 percent). 
This equals 68 mt, which will be added to the Longline category, 
resulting in a net increase to the Longline category of 62.5 mt (68 mt 
minus the Longline category's contribution of 5.5 mt). If, for example, 
the baseline annual U.S. quota is 923.7 mt in a given year, then 403.0 
mt would be allocated to the General category (i.e., 47.1 percent of 
855.7 mt), 33.4 mt to the Harpoon category (3.9 percent), 159.1 mt to 
the Purse Seine category (18.6 percent), 137.3 mt for the Longline 
category (8.1 percent plus the 62.5 mt), 168.6 mt for the Angling 
category (19.7 percent), and 21.4 mt for the Reserve category (2.5 
percent)
    This measure provides additional quota to the Longline category to 
facilitate the ability to account for both landings and dead discards 
within the Longline category quota, consistent with the historical 
separate dead discard allocation, yet limits the amount of reallocation 
to the Longline category if the total U.S. quota increases. For more 
information on the historical dead discard allocation and the 
associated rationale for the 68 mt augmentation of the Longline 
category, see the Codified Reallocation section (2.1.2) of the FEIS.

Annual Quota Reallocation

    NMFS will annually adjust the Purse Seine quota, using a formula 
based on the weights of reported landings and estimated weights of dead 
discards (calculated from reported lengths) by purse seine fishery 
participants in the previous year. Twenty-five percent of each Purse 
Seine category participant's base quota will be available as a minimum 
to each Purse Seine fishery participant annually. Beyond that amount, 
quota will be available to such participants based on the fishery 
participant's catch in the previous year. Any quota not allocated to 
the Purse Seine category participants will be allocated to the Reserve 
category for possible redistribution consistent with specified 
regulatory criteria to other quota categories, and to support other 
objectives of the 2006 Consolidated HMS FMP. By moving portions of the 
unused Purse Seine quota to the Reserve category annually, this measure 
will give NMFS more flexibility in administering the quota system.
    Based on public comment, this measure was modified from the 
proposed rule so that the annual formula for quota availability is 
based on the previous year's individual purse seine participant's 
catch, rather than based on the catch of the Purse Seine category as a 
whole. This modification ties quota allocation more closely to the 
individual participants catch and creates incentive for fishery 
participants to remain active in the fishery. Without this 
modification, individual allocations would be tied to the catch of the 
other vessels in the fishery, which could have unfair results if catch 
were to vary greatly among the vessels. For example, in a year where 
overall category catch were low, an individual purse seine participant 
could have a relatively low amount of quota available for use, even if 
that participant landed a substantial portion of its allocation during 
the previous year.
    Annually, NMFS will make a determination regarding the quota 
available for each purse seine participant for the year, based on the 
bluefin catch by such participants in the previous year. Purse Seine 
participants will have available for use either 100 percent, 75 
percent, 50 percent, or 25 percent of their base quota, according the 
following allocation criteria: If the individual catch is between 0 and 
20 percent of the individual base quota in year one, the Purse Seine 
fishery participant will have available for use 25 percent of their 
base quota in year two, and 75 percent of their quota will be available 
to the Reserve Category for that year. If the individual catch is 
greater than 20 percent and up to 45 percent of their individual base 
quota in year one, the Purse Seine fishery participant will be 
allocated 50 percent of their quota in year two, and 50 percent of 
their quota will be available to the Reserve Category for that year. If 
the individual catch is greater than 45 percent and up to 70 percent of 
their base quota in year one, the Purse Seine fishery participant will 
have available for use 75 percent of their individual base quota in 
year two, and 25 percent of their quota will be available to the 
Reserve Category for that year. If the individual catch is greater than 
70 percent of their base quota in year one, the Purse Seine fishery 
participant will have available for use 100 percent of their baseline 
quota in year two, and no quota will be available to the Reserve 
Category for that year. These thresholds (>20 percent, >45 percent, >70 
percent) will apply following the same pattern in years beyond year 
two, with each year's quota reflecting the previous year's catch. In 
summary, if Purse Seine fishery participants catch a large portion of 
their individual allocated base quota in one year, they have available 
for use a large portion of their base quota in the next year. If a 
Purse Seine fishery participant's catch is low in one year, a larger 
portion of their Purse Seine base quota becomes available for other 
management purposes. The Purse Seine quota available would not be 
``locked-in'' at a low level because the criteria are structured to 
enable increased utilization of available quota. For example, if the 
catch in year one is between 0 and 20 percent of their individual year 
one baseline Purse Seine quota, the Purse Seine fishery participant 
would have available for use 25 percent of their individual baseline 
quota in year two. If, in year two, the individual catch is greater 
than 20 percent of their individual baseline quota, but still within 
their individual annual allocation (i.e., catch is between 20 percent 
and 25percent), the Purse Seine fishery participant would have 
available for use 50% of their individual baseline quota in year three. 
The Purse Seine participants catch levels and allocation levels have 
been staggered to allow for an increase in allocation in the following 
year, without causing the Purse Seine fishery participant to exceed the 
current year's allocation to do so.
    This measure balances the need to provide the Purse Seine category 
participants a reasonable amount of fishing opportunity in a 
predictable manner, while making use of quota that may otherwise be 
unused. As described under ``Modifications to the Reserve Category,'' 
quota that is available to the Reserve Category may be utilized in a 
variety of ways to meet multiple objectives. NMFS will annually 
calculate the Purse Seine catch for that year and publish a notice in 
the Federal Register regarding the amount of quota that would be 
allocated to the Purse Seine fishery participants, as well as the 
corresponding amount allocated to the Reserve category and any 
disposition of the quota from the Reserve category for the subsequent 
year made at that time. After the initial adjustment, NMFS may make 
additional modifications to the Purse Seine quota inseason in 
accordance with the criteria for inseason adjustments specified at 
Sec.  635.27(a), or make subsequent use of quota from the Reserve 
category.

Modifications to the Reserve Category

    This measure gives NMFS management flexibility by augmenting the 
amount of quota in the Reserve category under certain circumstances

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and adds new criteria to the list of determination criteria NMFS 
considers in redistributing quota to or from the Reserve category, to 
be responsive to the current conditions in the fisheries and facilitate 
adaptation to future changes in the fisheries. The potential sources of 
quota for the Reserve category on top of its baseline allocation of 2.5 
percent are: (1) Available underharvest of the U.S. quota that is 
allowed to be carried forward; and (2) unused Purse Seine quota, under 
the Annual Quota Reallocation measure described above. For example, 
under the Annual Quota Reallocation, NMFS will annually adjust the 
purse seine quota, using a formula based on the weights of reported 
landings and estimated weights of dead discards (calculated from 
reported lengths) by each Purse Seine fishery participants in the 
previous year. Any remaining amount of Purse Seine quota will then be 
reallocated to the Reserve category for that subsequent year. NMFS 
could utilize quota from the Reserve category inseason after 
considering defined criteria and objectives. NMFS adds five criteria to 
the existing nine criteria to consider when making inseason or annual 
quota adjustments. The five new criteria, added to Sec.  
635.27(a)(8)(1)-(9) are: (10) Optimize fishing opportunity; (11) 
account for dead discards; (12) facilitate quota accounting; (13) 
support other fishing monitoring programs through quota allocations 
and/or generation of revenue; and (14) support research through quota 
allocations andr generation of revenue.
    These modifications to the Reserve category will increase 
management flexibility in administering the quota system in a way that 
takes into account fluctuations in the characteristics of the fishery.

 2. Gear Restricted Areas

Modified Cape Hatteras Gear Restricted Area, With Conditional Access

    This final rule establishes a GRA off Cape Hatteras, NC, and limits 
access to this area for vessels fishing with pelagic longline gear 
during the 5-month period from December through April. The shape of the 
GRA has been modified from the proposed rule to remove the southeastern 
corner of the defined geographic area. This change was to avoid 
unintended effects on fishing outside the closed area that would have 
occurred if the action were implemented as proposed because it did not 
account for the effect of the prevailing currents on how pelagic 
longline gear drifts in that area.
    Under this management measure, NMFS annually will grant qualified 
vessels conditional access to this GRA to fish with pelagic longline 
gear. Access will be granted based on a formula consisting of the 
following metrics: Ratio of bluefin tuna interactions to designated 
species catch, compliance with the Pelagic Observer Program 
requirements, and compliance with HMS logbook reporting requirements. 
Vessels will not qualify to fish in the area with pelagic longline gear 
if they have not demonstrated their ability to avoid bluefin tuna and/
or comply with reporting and monitoring (observer) requirements. Non-
qualifying vessels will be allowed to use other gear types to fish for 
non-bluefin HMS species authorized for use by pelagic longline vessels, 
such as buoy gear, green-stick gear, or rod and reel, in the area 
during the months of the restriction (December through April), but they 
may not fish with pelagic longline gear in during those months. 
Although originally proposed in the Proposed Rule, the final rule does 
not allow non-qualifying vessels access to the GRA to fish under the 
General category regulations and target bluefin (discussed further in 
the Comments and Responses). The principal objective of conditional 
access to the GRA is to balance the objective of reducing dead discards 
with the objective of providing reasonable fishing opportunity. The 
second objective is to provide strong incentives to modify fishing 
behavior to avoid bluefin tuna and reduce dead discards, as well as 
improve compliance with the logbook reporting and observer 
requirements. This regulatory approach is based on the fact that, 
historically, relatively few vessels have consistently been responsible 
for the majority of the bluefin tuna dead discards within the Longline 
category. Conditioning access on compliance with reporting and 
monitoring requirements reflects the critical importance of fishery 
data to the successful management of the fisheries.
    The initial evaluation of performance metrics will be based upon 
data from 2006 through 2012, and subsequent ``performance scores'' will 
be based upon the most recent complete three-consecutive-year period 
for which data are available. In a situation where an Atlantic Tunas 
Longline permit has been transferred from one vessel to another, or 
there has been an ownership change of a permitted vessel, the relevant 
vessel fishing history used for the calculation of the performance 
score regarding access to the Cape Hatteras GRA remains with the 
vessel. As further explained in the Response to Comments below (Comment 
26), NMFS modified the relevant historical time period from the 
proposed rule (which was 2006-2011). Atlantic Tuna Longline permit 
holders will be notified annually of the status of their relevant 
vessel, and only aggregated information regarding the vessel status 
will be made public. Atlantic Tuna Longline permit holders will be able 
to appeal their relevant vessel performance scores to NMFS by 
submitting a written request to appeal, indicating the reason for the 
appeal and providing supporting documentation for the appeal (e.g., 
copies of landings records and/or permit ownership, Pelagic Observer 
Program information, logbook data, etc.). NMFS will evaluate the appeal 
based upon the following criteria: (1) The accuracy of NMFS records 
regarding the relevant information; and (2) correct assignment of 
historical data to the vessel owner/permit holder. Such permit holders 
may also appeal on the basis of changes in vessel ownership or permit 
transfers. Appeals based on hardship factors will not be considered. 
See below for more information on appeals.
    NMFS will have the authority to terminate access for all pelagic 
longline vessels or individual pelagic longline vessels to the GRA via 
inseason action to address issues including: (1) Failure to achieve or 
effectively balance the objective of reducing dead discards with the 
objective of providing fishing opportunity; (2) bycatch of bluefin tuna 
or other HMS species that may be inconsistent with the objectives or 
regulations or the 2006 Consolidated HMS FMP, or ICCAT recommendations; 
or (3) bycatch of marine mammals or protected species that is 
inconsistent with the Marine Mammal Protection Act (MMPA), Pelagic 
Longline Take Reduction Plan (PLTRP), or the 2004 Biological Opinion 
(BiOP).
    The performance metric formula will enable qualified vessels to 
continue to fish in the Modified Cape Hatteras GRA, yet will 
substantially reduce bluefin tuna dead discards by precluding fishing 
in the GRA by those with a history of high bluefin tuna interaction in 
relation to other designated species catch. In order to characterize 
vessel performance in a manner that is fair, consistent, and feasible 
to administer, the performance metric formula is based on relatively 
simple, objective, and quantifiable information. For each of the three 
performance metrics, a vessel will be scored on a scale of 1 to 5, with 
5 reflecting better performance. Vessels with a ratio of bluefin tuna 
interactions to designated species catch of 1 will not be allowed to 
fish in the Modified Cape Hatteras GRA using pelagic longline

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gear. If a vessel's Pelagic Observer Program Compliance score is 2 or 
less, that vessel will not be allowed to access the area and fish with 
pelagic longline gear, unless the vessel's logbook compliance score is 
4 or 5.
    The performance metric formula will reflect bluefin tuna 
interactions as measured by the ratio of the number of bluefin tuna 
interactions (landings, dead discards, and live discards, in number of 
fish) to the weight of designated species landings (in pounds). These 
designated species will consist of the more common marketable catch 
harvested by pelagic longline vessels: Swordfish; yellowfin, bigeye, 
albacore, and skipjack tunas; dolphin; wahoo; and porbeagle, shortfin 
mako, and thresher sharks. The use of a ratio incorporating both 
designated species landings and bluefin tuna interactions provides a 
metric that is intended to eliminate bias resulting from the 
differences among vessels in size or fishing effort.
    The Pelagic Observer Program metric reflects compliance with 
requirements regarding communications, and other aspects of observer 
deployment. The scoring system is designed to be neutral with respect 
to valid reasons that a vessel was selected by the observer program but 
did not take an observer, and designed to weigh trips that were not 
observed due to noncompliance with the communication requirements more 
heavily than those that were not observed due to noncompliance with the 
safety and accommodation requirements. The logbook reporting metric 
reflects compliance with the requirement that the vessel owner/operator 
must submit the logbook forms postmarked within 7 days of offloading 
the catch, and, if no fishing occurred during a month, must submit a 
no-fishing form postmarked no later than 7 days after the end of that 
month.

Spring Gulf of Mexico Pelagic Longline Gear Restricted Areas

    This final rule establishes two GRAs in the Gulf of Mexico and 
limits access to these areas for vessels fishing with pelagic longline 
gear during the 2-month period from April through May to reduce dead 
discards and protect bluefin tuna on their spawning grounds, while 
maintaining fishing opportunities for pelagic longline vessels as 
appropriate. As described in the Response to Comments below (Comments 
52 and 53), the size and location of the geographic area of the GRA has 
been modified from the proposed rule to take into account the best 
available information about the location of bluefin interactions 
(eastward trend), the high variability of bluefin tuna distribution, 
the economic importance of the fishery, and other factors.
    Other gear types authorized for use by pelagic longline vessels 
such as buoy gear, green-stick gear, or rod and reel are allowed in 
these areas, provided the vessel abides by any rules/regulations that 
apply to those gear types

Transiting Closed Areas

    This final rule allows vessels with an Atlantic Tunas Longline 
permit, Swordfish Incidental or Directed Limited Access permit, or a 
Shark Limited Access permit fishing with bottom or pelagic longline 
gear to transit areas that are closed or restricted to such gear, if 
they remove and stow the gangions, hooks, and buoys from the mainline 
and drum. No baited hooks are allowed. The specific closed and 
restricted areas to which this transiting provision applies include 
those established by this rule (Spring Gulf of Mexico GRAs and Modified 
Cape Hatteras GRA), as well as the following pelagic longline closed 
areas in effect: Northeastern U.S. Closure, Northeast Distant 
Restricted Fishing Area, Charleston Bump, East Florida Coast Closed 
Area, and DeSoto Canyon Closed Area. This measure will allow vessels to 
transit the following bottom longline closed areas in effect: Mid-
Atlantic Shark, Snowy Grouper Wreck, Northern South Carolina, Edisto, 
Charleston Deep Artificial Reef, Georgia, North Florida, St Lucie Hump, 
East Hump, Madison-Swanson, Steamboat Lumps, and Edges 40 Fathom 
Contour.
    This regulatory provision reduces travel costs by allowing more 
direct routes of travel, and addresses the safety-at-sea concern 
associated with the requirement to steam around restricted areas.

3. Quota Controls

NMFS Closure of the Pelagic Longline Fishery

    Under measures adopted in the final rule, the pelagic longline 
fishery will close (i.e., use of pelagic longline gear is prohibited) 
when the total Longline category quota is reached, projected to be 
reached or exceeded, or when there is high uncertainty regarding the 
estimated or documented levels of bluefin tuna catch. These closures 
will help prevent overharvest of the Longline category quota and 
prevent further discards of bluefin tuna. When NMFS projects that the 
quota will be reached, it will file a closure action with the Office of 
the Federal Register for publication. Vessels will be required to 
offload all bluefin tuna prior to the closure date/time. Criteria NMFS 
will consider include those listed under Sec.  635.27(a)(8) as well as: 
Total estimated bluefin tuna catch (landings and dead discards) in 
relation to the quota; estimated amount by which the bluefin tuna quota 
might be exceeded; usefulness of data relevant to monitoring the quota; 
uncertainty in the documented or estimated dead discards or landings of 
bluefin tuna; amount of bluefin tuna landings or dead discards within a 
short time; effects of continued fishing on bluefin tuna rebuilding and 
overfishing; provision of reasonable opportunity for pelagic longline 
vessels to pursue the target species; variations in seasonal 
distribution, abundance or migration patterns of bluefin tuna; and 
other relevant factors. NMFS will use the best available data to 
calculate the most recent, complete, and available estimate of dead 
discards on a fishery-wide basis consistent with current regulations. 
Best available data may include, among other things, vessel-based 
reports, electronic monitoring data, and observer data, as appropriate.

Individual Bluefin Quotas (IBQs)

    This final rule implements an IBQ management system, which is 
summarized and then described in further detail below.

Summary of the IBQ Program

    NMFS is implementing an IBQ Program pursuant to section 303A of the 
MSA, which authorizes development of limited access privilege programs 
(LAPP). A LAPP creates permits, which are issued for a period of not 
more than 10 years, to harvest a quantity of fish expressed by a 
unit(s) representing a portion of the total allowable catch that may be 
received or held for exclusive use by a person. Section 303A(c), 16 
U.S.C. 1853a, identifies the requirements for such a program (note that 
the referendum requirements of section 303A(c)(6)(D) are inapplicable 
to this program for the Atlantic HMS fisheries). This final rule 
implements IBQs for vessels permitted in the Atlantic Tunas Longline 
category (provided they also hold necessary limited access swordfish 
and shark permits). Specifically, the IBQ Program requires vessels 
fishing with pelagic longline gear to account for bluefin tuna landings 
and dead discards using IBQ allocation (obtained through shares or 
leases of allocation), and prohibits the use of pelagic longline gear 
when the vessel's IBQ allocation has been caught. An IBQ share is a 
percentage of the total available Longline quota. Thus, if the total 
available Longline quota is modified as a result of an ICCAT

[[Page 71515]]

recommendation and the Longline quota is changed as a result, the share 
(specific percentage) associated with an eligible permit would not 
change, but would result in a modified amount of IBQ allocation (mt or 
equivalent pounds).
    The Northeast Distant Area (NED) is a distinctly managed geographic 
area due to the specification of a separate ICCAT quota relative to the 
rest of the pelagic longline fishery and is not managed under the full 
IBQ Program restrictions. However, there are provisions of the IBQ 
Program that will apply to vessels fishing with pelagic longline gear 
in the NED. For example, vessels will be required to have the minimum 
IBQ allocation to operate in the NED starting in 2016 and when NED 
bluefin quota has been exhausted, permitted vessels must abide by all 
the requirements of the IBQ Program.
    The IBQ Program is a suite of management measures intended to work 
together. An IBQ share is the percentage of the Longline category quota 
that is associated with an eligible vessel, based upon the IBQ share 
formula and the relevant vessel history, and an IBQ allocation is the 
amount (mt) of bluefin tuna quota that is distributed to a permitted 
vessel, based upon the relevant IBQ share, and the annual Longline 
category quota. Eligible pelagic longline vessels will receive one of 
three IBQ share percentages (1.2%, 0.6%, or 0.37%), which must be used 
by individual vessels to account for all their bluefin tuna landings 
and dead discards. Shares and allocations are designated as either Gulf 
of Mexico (GOM) or Atlantic (ATL). Vessels are prohibited from using 
Atlantic allocation to account for bluefin tuna catch in the Gulf of 
Mexico, thereby limiting potential shifts in effort. Specifically, a 
vessel with bluefin catch in the Gulf of Mexico may not use Atlantic 
allocation to account for such catch. However, vessels may use Gulf of 
Mexico allocation to account for bluefin catch in both the Gulf of 
Mexico and Atlantic. Allocations may be leased annually by Atlantic 
Tunas Longline category permit holders or Purse Seine category 
participants, and a minimum amount of allocation is required for a 
pelagic longline vessel to depart on a trip in the Atlantic (0.125 mt) 
using pelagic longline gear. A higher minimum amount of quota 
(allocation) is required for a pelagic longline vessel to depart on a 
fishing trip in the Gulf of Mexico (0.25 mt). A pelagic longline vessel 
may not use Atlantic allocation to satisfy the minimum share 
requirement for a fishing trip in the Gulf of Mexico. If a vessel 
retains legal sized bluefin tuna in excess of its allocation (``quota 
debt''), it may land the fish, but must lease additional IBQ allocation 
from another vessel to account for the excess catch, and is not allowed 
to fish with pelagic longline gear until the quota debt is balanced in 
the system (is accounted for) and the minimum allocation required for a 
vessel to depart on a trip is acquired. A vessel's IBQ allocation 
cannot carry-over from one year to the next, but if a vessel is unable 
to satisfy its quota `debt' in a particular fishing year, quota will be 
deducted from the vessel's allocation during the subsequent year.
    Although temporary leasing of IBQ allocation can occur, no 
permanent sale of IBQ shares is allowed at this time, to reduce risks 
for permit holders during the initial stages of the IBQ Program, when 
the market for bluefin tuna quota shares is new and uncertain. Measures 
to allow permanent sale of bluefin tuna quota shares may be implemented 
in the future through separate proposed and final rulemaking. This will 
allow time for IBQ fishermen to familiarize themselves with the IBQ 
Program and market for bluefin tuna shares.
    As described in more detail below, NMFS is implementing an 
internet-based system to track bluefin tuna catch (pelagic longline and 
purse seine), and the use and leases of IBQ allocation. VMS must be 
used by vessel operators to report bluefin tuna catches to increase the 
timeliness of dead discard data; and electronic monitoring (cameras and 
associated equipment) are required on pelagic longline vessels as one 
element of the monitoring program.
    The IBQ Program will be evaluated after 3 years, and NMFS will 
implement a cost recovery program through separate rulemaking.

What vessels are eligible to receive initial bluefin tuna quota shares?

    Vessels must meet two requirements to be eligible to receive IBQ 
shares: (1) Vessels must have a valid Atlantic Tunas Longline category 
permit; and (2) vessel must be deemed to be ``active''. Vessels that 
made at least one set using pelagic longline gear between 2006 and 2012 
(based on pelagic longline logbook data) are defined as ``active'' This 
date range includes 2012, and therefore is one year longer than that 
proposed to ensure that recent participants in the fishery are defined 
as ``active.'' For the purpose of IBQ share eligibility, a ``valid 
Atlantic Tunas Longline category permit'' is one held as of the date 
the proposed rule was published, which was August 21, 2013.
    Vessels with valid Atlantic Tunas Longline permits that do not meet 
the initial eligibility criteria may lease bluefin tuna IBQ allocation 
from IBQ allocation holders. Permits that are not associated with a 
vessel, such as a permit characterized as ``No Vessel ID,'' are not 
eligible for an initial IBQ share but would be eligible to receive IBQ 
allocation (through a lease) if and when the permit is reassociated 
with a vessel. Such a vessel would be required to lease IBQ allocation 
before fishing with pelagic longline gear. New entrants to the fishery 
must either obtain an Atlantic Tunas Longline permit with associated 
quota share, or if the valid permit did not have quota share, obtain 
bluefin tuna quota through lease/sale to fish.

How much bluefin tuna quota does each eligible vessel get?

    A vessel's IBQ share of the Longline quota is based upon two 
elements: The amount of bluefin tuna caught between 2006 and 2012, and 
the amount of designated species landings (i.e., swordfish; yellowfin, 
bigeye, albacore, and skipjack tunas; dolphin; wahoo; and porbeagle, 
shortfin mako, and thresher sharks). As discussed below in the 
``Response to Comments'' (Comment 76), this date range includes 2012, 
and therefore is one year longer than that proposed to consider the 
most recent fishing activity of vessels, and to be inclusive regarding 
the important elements. More specifically, the two factors that are the 
basis of the allocation formula are: (1) Historical bluefin tuna catch 
(from vessel logbook data) expressed as ratio of the number of bluefin 
tuna interactions to `designated species' landings; and (2) `designated 
species' landings (from the NMFS dealer data (weigh-out slips) and 
logbook information). The use of these two factors in the quota share 
allocation formula is intended to acknowledge past bluefin tuna 
avoidance, ensure a fair initial allocation, and consider the diversity 
in vessel fishing patterns and harvest characteristics. Past fishing 
that resulted in fewer bluefin tuna interactions will result in larger 
IBQ shares of bluefin tuna. Landings of designated species are an 
indicator of both the level of fishing effort and activity as well as 
vessel success at targeting those species and minimizing bluefin 
bycatch interactions. This method incorporates the rate of historical 
bluefin tuna interactions but also includes the amount of designated 
species landings, recognizing that greater levels of fishing activity 
are likely to be correlated with a greater number of bluefin tuna 
interactions.
    The specific IBQ allocation formula is as follows: Because the 
bluefin tuna interactions to designated species

[[Page 71516]]

landings ratio is very small, designated species landings were 
multiplied by 10,000 in order to derive a ratio that is more practical 
(i.e., 0.95 instead of 0.000095). In order to combine the two metrics, 
scores were assigned to each metric (the bluefin tuna catch to 
designated species landings ratio and historical designated species 
landings) as described below. Active vessels were sorted into three 
categories, using total designated species landings from 2006 through 
2011, based on percentiles of landings from lowest to highest (low, 
medium, and high, 0 to <33 percent; 33 to <66 percent and 66 to 100 
percent, respectively). Similarly, the active vessels were sorted 
according to the ratio of bluefin interactions to HMS landings, from 
lowest to highest. For example, a vessel with a 2006-2011 weight of 
designated species landings of greater than or equal to 367,609 lb (the 
66 to 100th percentile of landings) would be placed in the ``High'' 
category and assigned a score of 3 (the highest score). In contrast, a 
vessel with a total designated species landing of only 95,000 pounds 
for 2006 through 2011 would receive a designated species landings score 
of 1. A vessel with a bluefin to designated species landings ratio of 
less than 0.2884 (66 to 100th percentile of bluefin to designated 
species landings ratios), would place in the top category and receive a 
bluefin to designated species landings ratio score of 3. A low ratio 
indicates relatively few bluefin interactions and therefore receives a 
high score.
    Finally, the two scores were combined to form the basis of the 
allocation. For each vessel, the score for designated species landings 
was added to the score for bluefin to designated species ratio. For 
example, if a vessel scored in the ``High'' category for both 
designated species landings and bluefin to designated species landings 
its combined score would be 6 (3 + 3). If a vessel scored High for 
bluefin ratio, but Low for designated landings, it would be scored a 4 
(1 + 3) and it would be placed in the Medium rating score category. 
Vessels assigned to a particular category will be allocated the same 
percentage share.
    Vessels are allocated shares of 1.2%, 0.6%, or 0.37% of the 
Longline category quota. For 2015 (unless the U.S. quota is modified by 
ICCAT in 2014), based on a revised baseline Longline category bluefin 
tuna quota of 137 mt (baseline plus 62.5 mt), vessels will be allocated 
1.64 mt, 0.82 mt, or 0.51 mt of bluefin tuna, respectively. These 
specific allocations are larger than those proposed because the actual 
number of eligible vessels was less than the number of eligible vessels 
analyzed at the proposed rule stage. The number of eligible vessels 
determined by the proposed rule was higher because the proposed rule 
analysis included permits that were not associated with vessels at the 
time of the publication of the proposed rule (August 21, 2013), and did 
not reflect both eligibility criteria. Allocation among fewer eligible 
vessels increases the allocation amount per vessel. The rationale for 
this measure is to implement criteria that reflect participation in the 
fishery. By allocating only to ``active'' vessels, the measure will 
facilitate continued participation in the fishery by vessels that have 
made past investments in the fishery. Permitted vessels that do not 
meet the initial eligibility criteria necessary to receive bluefin 
quota share allocation will still be eligible to obtain quota through a 
lease of IBQ allocation. The criteria did not include 2013 or 2014 
because the DEIS and FEIS, respectively, were being written, during 
those years, and there were limitations on the availability of 
finalized data. Availability of finalized logbook and dealer data 
during 2013 and 2014 was limited to 2011 and 2012 data, respectively.
    As described below, under ``Appeal of Initial IBQ Shares,'' when 
NMFS determines that all requests for appeal have been resolved, NMFS 
may adjust all IBQ shares as necessary to accommodate permitted holders 
that have been deemed eligible or provided an increased IBQ share 
through the appeals process.
    All bluefin tuna quota allocated to Atlantic Tunas Purse Seine 
participants is also designated as ``Atlantic,'' subject to the 
restriction that it may only be used in the Atlantic (by either a Purse 
Seine vessel or via a lease to a pelagic longline vessel).
    If a vessel has fishing history in both the Gulf of Mexico and 
Atlantic, it may receive quota shares of both the Gulf of Mexico and 
Atlantic, depending upon the amount of quota share and the proportion 
of fishing history in the two areas. A relatively small percentage of 
sets in one area will not be reflected in the quota share. If a vessel 
would be allocated less than a minimum share amount for a particular 
area (i.e., less than 0.125 mt for the Atlantic or less than 0.25 mt 
for the Gulf of Mexico), then no allocation will be designated for that 
area and all of the permit holder's share would be designated to the 
other area (Atlantic or Gulf of Mexico). For example, if a vessel is 
eligible for an allocation of 0.51 mt, and historically landed 10 
percent of their catch in the Gulf of Mexico, the vessel would receive 
an allocation of 100 percent ``Atlantic'' quota (and none designated as 
``Gulf of Mexico'') because 10 percent of 0.51 mt (.005 mt) is less 
than the minimum share required to fish in the Gulf of Mexico (0.25 
mt). Owners of vessels with a valid Atlantic Tunas Longline category 
permit will be sent certified letters informing them of their IBQ share 
and resultant allocation. In determining initial quota share 
eligibility and calculating the initial quota share NMFS used data 
associated with a vessel's history. In the future, the IBQ share will 
be associated with the permit, not the vessel. For example, if a 
permitted vessel has IBQ shares, and the owner of the permitted vessel 
decides to sell the permit but keep the vessel, the seller of the 
permit (the vessel owner) would no longer have any quota share or 
privileges with respect to the IBQ Program because IBQ shares would be 
associated with the permit that was sold. In contrast, the buyer of the 
permit would receive IBQ shares and allocation associated with that 
permit once the permit is associated with a vessel.

Appeals of Initial IBQ Shares and GRA Access Determinations

    This final rule implements a two-step appeals process for review of 
the Secretary's decisions regarding initial assignment of IBQ shares. 
This rule also adds an opportunity for HMS Management Division to 
initially review a request for a quota share adjustment or access to 
the Cape Hatteras GRA, in order to facilitate possible expedited 
resolution of such requests without a requestor needing to go through a 
full National Appeals Office process. Specifically, the final rule 
describes an initial review step by the HMS Management Division through 
which the appellant must first submit a written request to appeal their 
initial IBQ share or access the Cape Hatteras GRA prior to submitting 
any appeals to the National Appeals Office. It also adds administrative 
details about the process (i.e., on acceptable supporting 
documentation, and the specific timing of the steps). This modification 
was made in response to public comment requesting clarification of the 
process. Although this final rule adds administrative details regarding 
the appeals process, the range of criteria that permit holders may base 
an appeal on did not change from the proposed to the final rule. 
Additional discussion of these changes is in the section of this 
preamble called ``Changes to the Proposed Rule.''
    Upon publication of this final rule, NMFS will notify all permit 
holders by certified letter of their initial IBQ share

[[Page 71517]]

and resultant allocation and whether they have granted access to the 
Cape Hatteras GRA. If permit holders wish to appeal their IBQ share 
determination or GRA access determination, they must first submit a 
written request for adjustment of their initial IBQ share or GRA access 
determination to the HMS Management Division, indicating the reason for 
the requested change and providing supporting documentation as detailed 
below. All requests for adjustment to initial IBQ shares or GRA access 
determination must be submitted to the HMS Management Division within 
90 days of publication of the final rule. HMS Management Division staff 
will evaluate all such requests and supporting documentation, then 
notify the appellant by letter signed by the HMS Management Division 
Chief of NMFS' decision to approve or deny the request. If the request 
is approved, then NMFS will appropriately adjust the appellant's 
initial IBQ share and resultant allocation and/or grant access to the 
Cape Hatteras GRA. If denied, the permit holder may appeal the decision 
to the NMFS National Appeals Office within 90 days of receipt of the 
notice of denial by submitting a written petition of appeal. Appeals 
will be governed by the regulations and policy of the National Appeals 
Office at 15 CFR part 906. National Appeals Office regulations detail 
the procedure for appealing the quota share decision (See Sec.  906.3).
    The decisions subject to a request for appeal are: (1) Initial 
eligibility for IBQ shares based on ownership of an active vessel (as 
defined by this rule under Sec.  635.15) with a valid Atlantic Tunas 
Longline category permit combined with the shark and swordfish limited 
access permits required under the current permit regulations; (2) the 
accuracy of NMFS records regarding a vessel's amount of designated 
species landings and/or bluefin interactions; and (3) correct 
assignment of target species landings and bluefin interactions to the 
vessel owner/permit holder. As discussed under the IBQ measures above, 
the IBQ share formula is based upon historical data associated with a 
permitted vessel. Because vessels may have changed ownership, or 
permits may have been transferred during 2006 through 2012, the current 
owner of a permitted vessel may also appeal on the basis of historical 
changes in vessel ownership or permit transfers, if current owner 
believes that the data used in the analysis were not accurate because 
of such changes. NMFS will consider only written requests for appeals. 
When permit holders are informed of their initial IBQ shares and 
resultant allocations and/or access determination, they will be 
provided instructions regarding the process to appeal that decision. 
Landings eligibility criteria require evidence of documented legal 
landings during the timeframe from January 1, 2006, through December 
31, 2012. Public comment on the DEIS and proposed rule reflected a need 
to clarify aspects of the appeals process. Thus, NMFS is clarifying in 
this final rule that, regarding what will be considered ``documented 
legal landings,'' NMFS will consider official NMFS logbook records or 
weighout slips for landings between January 1, 2006, through December 
31, 2012, that were submitted to NMFS prior to March 2, 2013 (60 days 
after the cutoff date for eligible landings), and verifiable sales 
slips, receipts from registered dealers, state landings records, and 
permit records as accompanying documentation of an appeal. Landings 
data are required to be submitted within 7 days of landing under the 
applicable regulations. Recognizing that somewhat-late reporting could 
have occurred for a variety of reasons, however, NMFS is clarifying 
that it will consider ``documented'' landings for appeals purposes to 
be those reported within 60 days. NMFS will count only those designated 
species landings that were landed legally when the vessel owner had a 
valid permit. Appeals regarding bluefin interactions may be based on 
HMS logbook records as described, observer data, or other NMFS data. No 
other proof of catch history will be considered. NMFS permit records 
will be the sole basis for determining permit transfers . Photocopies 
of the written documents are acceptable in the original application or 
appeal; NMFS may request the originals at a later date. NMFS may refer 
any submitted materials that are of questionable authenticity to the 
NMFS Office of Enforcement for investigation. Appeals based on hardship 
factors will not be considered. Consistent with most limited effort and 
catch share programs, hardship is not a valid basis for appeal due to 
the multitude of potential definitions of hardship and the difficulty 
and complexity of administering such criteria in a fair manner.
    When NMFS determines that all requests for IBQ share appeals have 
been resolved, NMFS may adjust all IBQ share percentages as appropriate 
to accommodate permitted holders that are deemed eligible or that are 
provided an increased IBQ share through the appeals process.

Mandatory Retention of Legal-Sized Bluefin Tuna

    Pelagic longline vessels must retain all legal-sized commercial 
bluefin tuna that are dead at haul-back. Because these fish must be 
retained, regulatory discards and the waste of fish will be decreased, 
and it will be more likely that such fish are accurately accounted for 
and have a positive use (e.g., marketed, used for scientific 
information, etc.). Bluefin tuna, of all size classes, that are live at 
haul-back should be carefully removed from the hooks and returned to 
the ocean to ensure survivability. Legal-sized commercial bluefin tuna 
that are alive at haul-back may be retained; however they will be 
accounted for under the IBQ allocation.

Fishing Under the IBQ Program

    This section provides a brief example of how some of the Amendment 
7 requirements applicable to a vessel fishing with pelagic longline 
gear will work together. Additional details regarding the VMS and 
electronic monitoring programs are provided below in sections of this 
preamble titled ``VMS'': and ``Electronic Monitoring.''
    As discussed in the proposed rule, IBQ allocation leases would be 
executed by the eligible vessel owners, or their representatives, 
through the internet and a NMFS database. Owner-performed leases will 
provide the quickest execution of leases because any eligibility 
criteria will be verified automatically based on information loaded 
into that system, and will not involve the submission or review of a 
paper application, or any lag time associated with NMFS staff being 
directly involved in the lease approval process. The online IBQ System 
used to track and lease bluefin IBQ shares and resultant allocations 
will be operated out of NMFS's Southeast Regional Office (SERO). The 
administrative functions associated with this IBQ System (e.g., 
registration and account setup, landing and dead discard tracking, and 
leases of allocation) are designed to be accomplished online; 
therefore, a participant must have an IBQ System account to 
participate. NMFS will provide instructions to IBQ participants about 
the required software, how to use the IBQ System to lease IBQ 
allocation and track IBQ use and balances, how to perform the necessary 
accounting actions that support administration of the program, and how 
to obtain assistance with using the system. An eligible permit holder 
must create an IBQ System account online, and log into the password 
protected IBQ

[[Page 71518]]

System to execute an IBQ allocation lease, to check the amount of IBQ 
in their account, or perform other functions, according to instructions 
provided by NMFS. Similarly, a dealer purchasing bluefin tuna caught 
from a vessel fishing with pelagic longline or Purse Seine gear must 
have an online dealer account, computer access, and internet access.
    Before they may depart to fish with pelagic longline gear vessels 
must have the required minimum IBQ allocation and must have balanced 
any outstanding quota debt from previous trips, and comply with the VMS 
and electronic monitoring requirements. Vessels are required to haul 
gear and handle catch in accordance with the electronic monitoring 
program requirements (described below under electronic monitoring 
requirements), retain any legal sized dead bluefin, and report bluefin 
catch and information on sets through their VMS during the trip 
(described below under VMS Requirements). If a vessel retains legal-
sized bluefin tuna in excess of its IBQ allocation, it may land and 
sell the fish, but the permit holder must acquire additional IBQ 
allocation to account for the excess catch, and is not allowed to fish 
with, or have onboard, pelagic longline gear until the quota debt has 
been resolved.
    At the end of the trip, the permitted dealer purchasing the 
landings must enter all bluefin landing information from the trip. The 
vessel owner or operator, or their designee, must coordinate with the 
dealer to enter their dead discards, into the IBQ System. The landing 
transaction completed by the dealer must include the name and permit 
number of the vessel that landed the bluefin and any other information 
regarding the landings, as instructed by NMFS (such as the 
shareholder's account number, vessel account number, individual tag 
number, weights for landed bluefin tuna, and the number of dead 
discarded bluefin tuna by appropriate length bin). The permit holder, 
or designee, must validate the landings information and enter the dead 
discard information (such as numbers of fish by approximate size) 
before the transaction is processed. If, by the end of the fishing year 
a permit holder does not have adequate allocation (obtained either 
through leasing under paragraph (c)), or additional allocation under 
paragraph (f) to settle their vessel's quota debt, the vessel's 
allocation will be reduced in the amount equal to the quota debt, in 
the subsequent year, or years, until the quota debt is fully accounted 
for. A vessel may not fish if there is outstanding annual quota debt 
from a previous year. For those permit holders who own or operate 
multiple vessels with allocation, if, at the end of the year, one or 
more of the vessels has an outstanding quota debt, yet the other 
vessels still have allocation, the IBQ system will apply any remaining 
unused allocation associated with the other vessels to account for the 
quota debt of the other. This system functionality has been added since 
the proposed rule because unused allocation does not carry over from 
one year to the next, but quota debt does. This addition will ease the 
regulatory burden of resolving quota debt, and reduces the possibility 
that a permit holder of multiple vessels may inadvertently fail to 
manually resolve an existing quota debt with allocation associated with 
one of their other vessels at the end of the year and otherwise miss 
the opportunity to resolve the debt.
    For example, if a permit holder owns two vessels, Vessel A and 
Vessel B and both have IBQ allocations but at the end of the year 
Vessel A has a quota debt of .20 mt, and Vessel B has remaining unused 
IBQ allocation of .10 mt, the IBQ System would automatically transfer 
.10 mt of Vessel B IBQ allocation to Vessel A to count toward resolving 
Vessel A's quota debt. Vessel A would still have a quota debt of .10 mt 
and, when annual IBQ allocation occurs at the start of the subsequent 
year, Vessel A's annual IBQ allocation would be reduced by .10 mt to 
account for the previous year's quota debt.
    This final rule clarifies the relationship of accrued quota debt 
and Atlantic Tunas Longline category permit under the IBQ Program. If 
an Atlantic Tunas Longline category permit holder participated in the 
IBQ Program and has a quota debt that remains unresolved at the time of 
such permit's sale or transfer, then that quota debt remains associated 
with the permit. This is consistent with the IBQ share remaining linked 
to the eligible permit itself and further refines how IBQ shares, 
resultant allocation, and quota debt will be managed to ensure 
accountability under the IBQ Program, even if permits are sold or 
transferred.
    To ensure that all IBQ Program activity can be accounted for on an 
annual basis, the IBQ System will prohibit any and all online 
transactions, such as catch transactions and IBQ allocation leases, 
between December 31 at 6 p.m. and January 1 at 2 p.m. (Eastern Time). 
IBQ System functions will resume after January 1 at 2 p.m. the 
following year. No IBQ System transactions will be allowed or available 
during this 20 hour time period to provide NMFS time to reconcile IBQ 
accounts, adjust IBQ allocation for the upcoming year, etc. If a vessel 
with the required minimal IBQ allocation departs on a trip prior to the 
end of a calendar year and returns to port after the start of the 
following year, any bluefin landings or dead discards will be counted 
against the new year's allocation.
    In this final rule, NMFS will maintain the authority to ensure that 
the bluefin catch by pelagic longline vessels does not exceed the 
Longline quota. NMFS may, under certain circumstances, such as high 
uncertainty regarding the VMS reported dead discards, utilize the 
current methodology for generating and using estimates of pelagic 
longline dead discards. Prior to this final rule NMFS has used previous 
years' estimate as proxy for anticipated dead discards, and subtracted 
that estimate of dead discards ``off the top'' of the entire Longline 
quota. Although not anticipated, NMFS will maintain this ability until 
both methodologies can be compared in parallel to verify accuracy.

The Northeast Distant Area (NED) and the IBQ Program

    Under current ICCAT recommendations, the NED is a distinctly 
managed geographic area managed under a separate quota. Because the NED 
is managed as a distinct area with a relatively small quota, and 
managing the NED under the IBQ system would add additional complexity 
to the IBQ system, the quota associated with the NED (25 mt) is not 
managed under the full IBQ Program restrictions. However, there are 
provisions of the IBQ Program that will apply to vessels fishing with 
pelagic longline gear in the NED. For example, vessels will be required 
to have the minimum IBQ allocation to operate in the NED starting in 
2016 and when NED bluefin quota has been exhausted, permitted vessels 
must abide by all the requirements of the IBQ Program. Electronic 
monitoring systems, installed by June 1, 2015, will be required in 
order for vessels to fish with pelagic longline gear including in the 
NED, and data from the electronic monitoring system may be used to 
ensure that targeting fishing is not occurring. NMFS reminds the 
regulated community that the international separate allocation is only 
for bycatch in the NED and of the domestic prohibitions against 
targeting bluefin tuna using pelagic longline gear. NMFS will re-visit 
this issue if necessary if subsequent years' data indicate that 
additional controls are needed.

[[Page 71519]]

Quota Leasing

    This measure allows Longline and Purse Seine category vessels to 
lease allocation to or from other vessels in these categories (provided 
they have active accounts in the IBQ system), so that allocations will 
become better aligned with catch (i.e., vessels that catch bluefin tuna 
may be able to obtain quota from those that do not interact with 
bluefin tuna, or that have not used their full allocation of bluefin 
tuna). Allocation may be leased annually by Atlantic Tunas Longline 
category permit holders from other Atlantic Tunas Longline category 
permit holders or from Purse Seine category participants, regardless of 
whether they are eligible for their own quota share. Leasing of IBQ 
allocations is allowed among all Longline category vessels with valid 
limited access permits, regardless of whether they are eligible for 
their own quota share. If a vessel catches bluefin tuna using 
allocation that it has leased from another vessel, the fishing history 
associated with the catch of bluefin tuna will be associated with the 
vessel that catches the bluefin tuna (the lessee, not the lessor 
vessel). In other words, the lessee (vessel catching the fish) gets the 
`credit' for the landings and dead discards, and not the lessor (the 
vessel that leased the allocation to the catching vessel). The future 
catch of bluefin tuna will not affect the quota shares, but will affect 
the calculation of the performance metric of each vessel. Sub-leasing 
of quota is allowed (i.e., IBQ leased from vessel A to vessel B, then 
re-leased by vessel B to vessel C). For a particular calendar year, an 
individual lease transaction will be valid from the time of the lease 
until December 31.
    The initial limit on the amount of allocation an individual 
Longline or Purse Seine category participant may lease annually will be 
the combined Longline and Purse Seine category allocations. This will 
provide flexibility for vessels to purchase quota in a manner that can 
accommodate various levels of unintended catch of bluefin tuna, and 
enable the development of an unrestricted quota market.

Annual Individual Bluefin Quota Allocation

    Annual allocation of bluefin quota to eligible vessels with IBQ 
shares will occur January 1, based on the criteria described above 
(``What Vessels Are Eligible to Receive Initial Bluefin Tuna Quota 
Shares?'' and ``How Much Bluefin Tuna Quota Does Each Eligible Vessel 
Get?''). For vessels that are not eligible as of December 31 because 
they have begun--but not completed--the process of permit renewal or 
permit transfer, IBQ allocations will be made when the eligible permit 
holder completes the permit transaction(s). Subsequent to the annual 
allocation of quota, additional IBQ may be allocated to the vessels 
with bluefin quota share as a result of a U.S. baseline quota increase 
or transfer of quota from the Reserve category to the Longline 
category, pursuant to criteria for quota adjustments. Subsequent to the 
annual allocation of quota, quota may be deducted from vessels as a 
result of a decrease in the U.S. baseline quota, or to account for a 
quota debt (bluefin catch by a vessel that must be accounted for under 
the IBQ system, for which the vessel has insufficient quota).
    With respect to the relationship between the Atlantic Tunas 
Longline permit and the IBQ share, upon implementation of Amendment 7, 
the IBQ share is associated with the Atlantic Tunas Longline permit, 
and is not severable. If, in the future, NMFS allows permanent sale of 
quota shares, NMFS would also consider whether or not the share is 
severable from the Atlantic Tunas Longline permit. Under this final 
rule, any quota debt associated with an Atlantic Tunas Longline permit 
will be associated with (and accompany) the permit upon sale/transfer 
of the permit. Quota debts will be also be associated with Atlantic 
Tunas Purse Seine category participants.

Elimination of Target Catch Requirement

    This final rule eliminates the current target catch requirements 
for pelagic longline vessels (including those fishing in the NED), 
which restricts the number of incidentally caught bluefin tuna a 
pelagic longline vessel may retain in relation to the amount of target 
species retained and sold. In the context of the IBQ system being 
implemented by Amendment 7, the current target catch requirement is no 
longer be necessary.

Formal IBQ Program Evaluation

    NMFS will formally evaluate the success and performance of the IBQ 
Program in achieving its objectives, after three years of operation and 
provide the HMS Advisory Panel with a publicly-available written 
document with its findings. The review will describe and analyze the 
changes that have taken place in the fishery since implementation of 
the IBQ Program. NMFS will utilize its standardized economic 
performance indicators, developed by its Office of Science and 
Technology, as part of its review. For example, the standardized 
economic performance indicators include catch (landings and dead 
discards), effort, revenues, and allocation leases and accumulation. 
Other indicators include the number of and distribution of bluefin tuna 
interactions. The review may also include analysis of data collection, 
monitoring, and reporting; enforcement; quota performance; quota 
distribution among permit holders; quota share and resultant allocation 
transferability; other elements of the IBQ Program; or aspects of the 
2006 Consolidated HMS FMP relevant to the IBQ Program such as gear 
restricted areas or purse seine measures.

Cost Recovery

    Section 303A(e) of the Magnuson-Stevens Act (16 U.S.C. 1853a(e)) 
requires that, in establishing a LAPP, a Council shall develop a 
methodology and the means to identify and assess the management, data 
collection and analysis, and enforcement programs that are directly 
related to and in support of the LAPP; and provide for a program of 
fees paid by LAPP holders that will cover the costs of management, data 
collection and analysis, and enforcement activities. Such fees may not 
exceed 3 percent of the ex-vessel value of fish harvested under the 
LAPP. While section 303A(e) requires development of cost recovery in 
establishing a LAPP, NMFS plans to implement cost recovery after the 
IBQ Program evaluation (after 3 years). This step-wise approach is 
consistent with the purpose of section 303A(e) and appropriate given 
the nature of the LAPP being proposed. The purpose of section 303A(e) 
is to collect fees to cover management, data collection and analysis, 
and enforcement activities. However, the cost of administering a cost 
recovery program may be high relative to the amount of money recovered, 
because some active vessels have very high fishing activity whereas 
others have relatively low activity. NMFS also notes that the 
underlying objective of the IBQ is to reduce incidental catch of 
bluefin tuna, which will impact the amount and ex-vessel value of fish 
harvested. Immediate implementation of a cost recovery program, without 
obtaining further information about the operation of the fishery with 
IBQs, would be very difficult and would increase costs and uncertainty 
for fishing vessels during a time period when the fishery would be 
bearing other new costs and sources of uncertainty. For the above 
reasons, NMFS is not implementing cost recovery until after it conducts 
the program evaluation. After the IBQ Program is evaluated after 3 
years,

[[Page 71520]]

NMFS will implement a cost recovery program through separate 
rulemaking.

4. Reporting Measures

Vessel Monitoring System (VMS) Requirements

    This final rule implements VMS reporting requirements for vessels 
fishing with pelagic longline gear and issued an Atlantic Tunas 
Longline category permit. It also requires vessels fishing with purse 
seine gear and issued an Atlantic Tunas Purse Seine category permit to 
install VMS and report through VMS to support the inseason monitoring 
of the pelagic longline and purse seine fisheries, as proposed. 
Additional detail is provided in this final rule to explain application 
of the requirements to the Purse Seine category, in response to public 
comment asking for clarification and because of the need for additional 
administrative detail.

Purse Seine Vessels

    Vessels with an Atlantic Tunas Purse Seine category permit must 
have an approved Enhanced Mobile Transmitting Unit (E-MTU) VMS unit 
installed by a qualified marine electrician to fish for Atlantic tunas 
with purse seine gear. Vessels must follow the procedures for 
installation and activation provided by NMFS and submit to NMFS the 
completed checklist and compliance certification statement. The VMS 
unit must submit automatic position reports every hour, 24 hours a day, 
unless a valid power down exemption has been granted by NMFS law 
enforcement. Owners of purse seine vessels may request a documented 
power down exemption from NMFS law enforcement if the vessel will not 
be fishing for an extended period of time. The request must describe 
the reason an exemption is being requested; the location of the vessel 
during the time an exemption is sought; the exact time period for which 
an exemption is needed; and sufficient information to determine that a 
power down exemption is appropriate. Prior to departing on a trip 
vessels that intend to fish for Atlantic tunas with purse seine gear 
must declare through E-MTU VMS their intent to fish with such gear and 
note their HMS target species), by submitting a ``Highly Migratory 
Species Trip Declaration Form'' (`hail out'). If a vessel operator is 
aware that transmission of automatic position reports has been 
interrupted, or is notified by NMFS that such reports are not being 
received, the vessel operatory must contact NMFS and follow the 
instructions given. After a fishing trip during which interruption of 
automatic position reports has occurred, the vessel's owner or operator 
must have a qualified marine electrician replace or repair the VMS unit 
prior to the vessel's next trip. Finally, as a condition of obtaining 
an HMS limited access permit, the vessel owners or operators must allow 
NMFS, the United States Coast Guard (USCG), or their designees access 
to the vessel's position data.
    Vessels fishing for Atlantic tunas with purse seine gear must 
submit, through VMS, a ``Highly Migratory Species Bluefin Tuna Catch 
Report'' for each set. Specifically, such vessels must report the 
number of sets within 12 hours of the set; and report the length of all 
bluefin discarded dead or retained (by standardized size ranges) within 
12 hours of completion of each the set (including reporting zero 
bluefin on a set). NMFS will provide vessel owners with instructions 
regarding the detailed methods of reporting such information using 
their VMS units. At least three hours prior to the end of a trip, the 
vessel operator must provide advanced notice of landing by submitted 
the ``Highly Migratory Species Pre-Landing Notification Form'' with 
information on the time and location of landing.
    If a vessel operator decides not to fish for or retain HMS for two 
or more trips, the operator may choose to ``declare out'' of the 
fishery, according to instructions provided by NMFS, and not be subject 
to the HMS hail in/hail out requirements during trips for which they 
are declared out of the HMS fishery.
    Vessels fishing with pelagic longline gear must report through VMS 
the number of hooks and sets within 12 hours of completion of each 
pelagic longline haul-backs and, for pelagic longline sets with bluefin 
tuna interactions, must report the length of all bluefin tuna retained 
or discarded dead (by standardized size ranges) within 12 hours of 
completion of the pelagic longline haul-back.
    NMFS will make specific VMS reporting instructions available to the 
purse seine and pelagic longline fisheries to facilitate this reporting 
requirement.

Electronic Monitoring

    The final rule adopts electronic monitoring requirements for all 
vessels issued an Atlantic Tunas Longline permit that fish with pelagic 
longline gear. This final rule requires all such vessels that are 
currently eligible to have a NMFS-approved contractor install a system 
and obtain certification of such installation. They must then properly 
maintain the video cameras and associated data recording and monitoring 
equipment, which will record all longline catch and relevant data 
regarding pelagic longline gear retrieval and deployment. NMFS will use 
the recorded data to verify the accuracy of counts and identification 
of bluefin tuna reported by the vessel owner/operator, as well as 
observers. Electronic monitoring will enable the collection of video 
images and fishing effort data that may be used in conjunction with 
other sources of information to estimate bluefin tuna dead discards, 
and may augment the ability of an observer to fulfill their duties by 
providing a record of catch during the time periods the observer may be 
unable to observe the catch directly.
    In light of public comments expressing concern about ensuring the 
functionality of electronic monitoring systems and the costs of such 
systems, this final rule relieves certain purchase and installation 
requirements that were set out in the proposed rule. Rather than 
requiring currently eligible vessel owners to buy and install equipment 
and make decisions about equipment specifications and functionality, 
this final rule instead requires the currently eligible vessel owners 
to obtain certification from a NMFS-approved contractor stating that 
the contractor has properly installed and verified the functionality of 
the electronic monitoring system in accordance with more detailed 
equipment and system requirements provided in the final rule. As set 
out in the proposed rule, vessel owners would have been responsible for 
the costs of the equipment and for installation for the electronic 
monitoring systems. Since publication of the proposed rule and the 
FEIS, and in response to public comment and to ease the regulated 
community's burden associated with the new monitoring requirements, 
NMFS has identified funds to pay for the equipment and its installation 
for those currently eligible vessels (eligible for initial quota 
shares). For all vessels issued an Atlantic Tunas Longline permit that 
fish with pelagic longline gear, vessel owners (or their 
representatives) must coordinate with the NMFS-approved contractor to 
install and test electronic monitoring equipment, and the contractor 
will then provide certification that the equipment has been properly 
installed. Vessel owners will be required to make their vessel 
accessible to designated personnel on a specific date, or range of 
dates, to allow installation and testing of electronic monitoring 
equipment, and may be required to steam to a

[[Page 71521]]

designated port within their geographic region to enable such 
installation and training. This is consistent with the proposed rule's 
requirement that vessels be available for inspection, as it will not 
result in any additional absence from fishing time than was analyzed 
and proposed in the proposed rule or impose additional financial costs 
or regulatory burden.
    To fish using pelagic longline gear, a vessel must have a valid 
certification form from the NMFS-approved contractor certifying that it 
has a fully functioning electronic monitoring system on board. Because 
the pelagic longline fleet is diverse with respect to vessel size, 
mechanical infrastructure, and operation, and the technology supporting 
electronic monitoring is changing and improving, NMFS is implementing 
detailed regulations that include some technical specifications 
regarding the necessary equipment that constitutes an electronic 
monitoring system to respond to public comment that more details are 
needed while still providing flexibility to allow vessels to install 
equipment that performs well in a cost effective manner. NMFS will 
utilize both third party experts and NMFS staff to provide vessel 
owners instructions regarding the specific required equipment and 
operational features of the system. As explained in more detail below, 
vessels must, in accordance with instructions provided by NMFS and/or 
NMFS-approved contractor, coordinate installation and maintain the 
following equipment, as components of an electronic monitoring system: 
Two to four video cameras, a recording device, video monitor, hydraulic 
pressure transducer, winch drum rotation sensor, system control box, 
GPS receiver, and related support equipment needed to achieve the 
objectives (e.g., power supply, camera mounts, lighting). Slight 
modifications to the equipment listed above may be required to support 
the objectives of electronic monitoring, adapt to unique vessel 
characteristics, or achieve cost savings or efficiencies. Vessel 
owners/operators must coordinate installation and subsequently maintain 
and operate the system in accordance with instructions provide by NMFS, 
and allow inspection of the equipment by NMFS. The electronic 
monitoring system must include software to enable a test function so 
that the vessel operator may test the status of the system (i.e., 
whether it is fully functional) prior to each trip, and record the 
outcome of the test. A vessel operator may not depart on a pelagic 
longline trip unless the pre-trip test indicates that the system is 
fully functioning. Upon successful installation and testing by the 
NMFS-approved contractor, the NMFS-approved contractor will provide 
vessel owners with a certificate that the equipment installed 
constitutes a ``fully functioning electronic monitoring system'' based 
on written instructions and requirements that NMFS provided the 
contractor. The vessel owner must make the certificate available upon 
request by NMFS OLE. The required cameras must be installed to provide 
a view of the area where the longline gear is retrieved and catch is 
removed from the hook (prior to placing in the hold or discarding 
boatside) and such system must be connected to the mechanical hauling 
device so that recording is initiated by gear retrieval. The specific 
equipment functionality requirements are as follows:
    Video Cameras: Video data are produced by digital IP (Internet 
protocol) video cameras at a resolution of no less than 720p 
(1280x720). The individual vessel systems must include no less than two 
cameras: At least one camera to record close-up images of the deck at 
the haul back station for species identification/length estimation, and 
at least one camera to record activity along the side of the vessel at 
the water line of the haul back station to document animals that are 
caught and discarded but not brought aboard, as well as the disposition 
of that catch (released alive/dead). The frame rates of the footage 
will need to allow for easy of viewing. The cameras are not required to 
record audio.
    GPS Receiver: A GPS receiver is required to produce output, which 
includes location coordinates, velocity, and heading data, and is 
directly logged continuously by the control box at a minimum rate of 10 
seconds. The GPS receiver must be installed and remain in a location 
that receives a strong signal continuously.
    Hydraulic & Drum Rotation Sensors: A hydraulic sensor is required 
to continuously monitor the hydraulic pressure, and a drum rotation 
sensor must continuously monitor drum rotations in order to provide the 
data necessary for the EM system to trigger the video camera to record. 
The combination of these two sensors provide a mechanism to ensure that 
specific periods of time are captured on video, such as when gear is 
being retrieved and catch is removed from the hooks.
    EM Control Box & Monitor: The system must include a `control box' 
to receive and store the raw data provided by the sensors and cameras. 
The control box must contain removable hard drives and storage system 
adequate to store data for the entire trip (e.g., adequate to store the 
data associated with a trip lasting approximately 30 days). A 
wheelhouse monitor must provide a graphical user interface for 
harvesters to monitor the state and performance of the control box and 
should include information such as: Current date and time synced via 
GPS, GPS coordinates, current hydraulic pressure reading, presence of a 
data disk, percentage used of the data disk, and video recording 
status.
    Hydraulics: Prior to system installation, vessel operators must 
possess and install a fitting for the pressure side of the line of the 
drum hydraulic system. The fitting may be either ``T'' or inline, with 
a female \1/4\'' threaded National Pipe Thread (NPT) port to enable 
connection to the pressure transducer.
    Power: Electronic monitoring systems are capable or being powered 
by both alternating current (AC) and direct current (DC) power. An EM 
system that is to be powered by a DC circuit must have free space on a 
12-volt bus bar in the wheelhouse and a dedicated DC power switch. If 
the EM systems are to be powered by AC circuits, vessels must provide 
an Uninterrupted Power Supply (UPS) in the wheelhouse.
    Camera Mounts: During installation of the EM system, cameras must 
be mounted so that the camera may be positioned to view the waterline 
outboard of the vessel rail. If determined during the vessel assessment 
that there is not suitable mounting structure onboard, vessels may be 
required to provide a mount that allows a camera to be positioned to 
view the waterline outboard of the vessel rail. Before each scheduled 
installation of an EM system, NMFS-approved contractors will discuss 
mounting alternatives with the vessel's owner or operator.
    Lighting: Vessels must provide sufficient lighting for cameras to 
clearly illuminate individual fish on deck at the haul back station and 
along the vessel rail at the waterline, at all times. Lighting will be 
evaluated by NMFS-approved contractors during the vessel assessment/EM 
installation. After installation, if NMFS-approved contractors review 
video footage and determine that lighting is insufficient, the vessel 
owner must adjust the lighting to ensure it is sufficient before the EM 
system can be recertified.
    Upon completion of a fishing trip, the vessel operator must mail 
the removable EM system hard drive containing all data to NMFS or the 
NMFS-approved contractor, within 48 hours of the

[[Page 71522]]

completion of the trip, according to instructions provided by NMFS. 
Prior to departing on a subsequent trip, the vessel owner or operator 
must install a replacement EM system hard drive to enable data and 
video recording. The vessel owner or operator is responsible for 
contacting NMFS, or NMFS-approved contractors, if they have not 
received a replacement hard drive(s). The vessel operator is 
responsible to ensure that all bluefin tuna are handled in a manner 
that enables the electronic monitoring system to record such fish, and 
must identify a crew person or employee responsible for ensuring that 
all handling, retention, and sorting of bluefin tuna occurs in 
accordance with the regulations. NMFS or the NMFS-approved contractor, 
with the vessel owner or operators'' input, will develop and provide a 
written Vessel Monitoring Plan, to document the standardized procedures 
relating to electronic monitoring and facilitate communication of such 
procedures to the vessel crew. The vessel owner or operator is 
responsible for ensuring that the EM system remains powered for the 
duration of each trip; that cameras are cleaned routinely to ensure 
unobstructed views, and the EM system components are not tampered with.
    NMFS will communicate instructional information in writing, via 
permit holder letters, to the vessel owners during all phases of the 
program to provide direction and assistance to vessel owners, and 
facilitate the provision of technical assistance.

Electronic Catch Reporting

    This final rule requires Atlantic Tunas General, Harpoon, and HMS 
Charter/Headboat categories to report the length of all bluefin tuna 
retained or dead discards through an online catch reporting system 
(either through a Web site designated by NMFS or calling a phone 
number) within 24 hours of the landings or end of each trip. 
Specifically, vessels must report the number of bluefin tuna retained, 
and the number of bluefin tuna discarded dead, according to 
instructions that will be provided by NMFS. NMFS also operates a 
similar automated landings reporting system (ALRS) for recreational 
bluefin tuna catch in the HMS Angling and Charter/Headboat category 
(when fishing recreationally). This discard information will enhance 
NMFS's ability to more fully and accurately account for all sources of 
fishing mortality, consistent with ICCAT recommendations.

5. General Category Flexibility for Quota Adjustment

    This final rule allows NMFS to proactively transfer General 
category quota from one or more of the time-periods that follow the 
January time-period to the January or other preceding sub-quota time 
periods within a fishing year, either through annual specifications or 
through inseason action. In other words, under this rule, NMFS may 
transfer subquota from one time period to another time period, earlier 
in the same calendar year. As described in more detail under Response 
to Comments (Comment 98), NMFS may transfer quota from the December 
sub-quota time period to the January sub-quota time period to address 
the unique characteristics of the January sub-quota period. For 
example, for an upcoming year (i.e., prior to January), NMFS may 
transfer quota from the December to the January sub-quota period. NMFS 
may also conduct lower priority transfers of sub-quota between time 
periods, for example, subquota could be transferred from the October 1 
through November 30 time period to the September time period.
    This final rule adds a new objective called ``quota adjustment'' to 
the current list of criteria and relevant factors NMFS considers when 
making inseason or annual quota adjustments.

6. Harpoon Category NMFS Authority To Adjust Retention Limits

    To optimize fishing opportunity for the Harpoon category 
participants within the available quota, NMFS may increase or decrease 
the daily retention limit of large medium bluefin tuna (greater than 
73'' CFL and less than 81'' CFL) within a range from two to four fish. 
Any adjustment will be based upon the regulatory determination criteria 
under Sec.  635.27(a)(8) (as revised by this final rule) that apply to 
inseason bluefin tuna adjustments including: The usefulness of 
information obtained from catches in the particular category for 
biological sampling and monitoring of the status of the stock; effects 
of the adjustment on bluefin tuna rebuilding and overfishing; effects 
of the adjustment on accomplishing the objectives of the fishery 
management plan; variations in seasonal distribution, abundance, or 
migration patterns of bluefin tuna; 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; and review of dealer 
reports, daily landing trends, and the availability of the bluefin tuna 
on the fishing grounds, as well as any other relevant factors.
    The default Harpoon category daily retention limit of large medium 
bluefin tuna will be two fish per vessel (the large medium bluefin tuna 
daily retention limit that applied prior to the 2011 regulatory 
change). The retention limit of giant bluefin tuna will remain 
unlimited. The objective of this measure is to optimize fishing 
opportunity for the Harpoon category participants within the available 
quota. This management measure enhances NMFS's ability to more 
precisely manage the landing rate of large medium bluefin tuna by the 
Harpoon category, thereby optimizing opportunities while preventing 
landings from exceeding the subquota.

7. Angling Category Trophy Subquota Distribution

    This final rule allocates one third of the Angling category trophy 
subquota specifically to account for those bluefin tuna caught 
incidentally while pursuing other species in Gulf of Mexico. The trophy 
subquota would be divided as follows: 33 percent to each of the 
northern area, the southern area outside the Gulf of Mexico, and the 
Gulf of Mexico. Based upon the recent average trophy fish weight, this 
would allow up to 8 trophy bluefin tuna to be landed annually in each 
of the three respective areas. To distinguish bluefin tuna incidentally 
caught in the Gulf of Mexico from those caught in the Atlantic, the 
Gulf of Mexico region includes all waters of the U.S. EEZ west and 
north of the boundary stipulated at Sec.  600.105(c), which is 
essentially west of 83[deg] 00' West longitude but also includes the 
waters off southwestern Florida and north of the Florida Keys.
    The objective of this measure is to reduce discards for 
recreational vessels in the Atlantic and Gulf of Mexico, and account 
for incidentally caught bluefin tuna by converting a small number of 
potential dead discards in the Gulf of Mexico to potential landings. A 
separate subquota allocation for the Gulf of Mexico increases the 
likelihood that there will be trophy quota available to account for any 
potential incidental catch of bluefin tuna in that area, while still 
providing incentives not to target bluefin tuna.

8. Purse Seine Category Fishing Year Start Date

    NMFS considered two alternatives at the proposed rule stage. The No 
Action Alternative would have maintained the current practice: The 
purse seine fishery starts on the default start date of July 15 each 
year unless NMFS takes action to delay the season start date to as late 
as August 15. A second alternative, which

[[Page 71523]]

was preferred in the proposed rule and in the FEIS, would change the 
default start date to June 1 (instead of July 15), unless NMFS takes 
action to delay the start date to as late as August 15. In the final 
rule, after considering public comments after the FEIS was published, 
HMS is choosing a third option that removes the default start date 
altogether. Instead, NMFS will establish the purse season start date 
annually, within a range from June 1 to August 15, based on the 
already-existing criteria in the regulations, which are unchanged in 
the final rule text. Although the third option was not directly 
analyzed as an alternative in the FEIS, the range of dates for possible 
opening (June 1-August 15) remains within the range analyzed in the 
FEIS (June 1-August 15 between the two alternatives), and the regulated 
community was aware that this range was being considered and that NMFS 
intended to retain maximum flexibility under any option to adjust the 
date as necessary to be responsive to the public and the fishery under 
the regulatory provisions. By relieving the default date, the new 
approach will allow additional public input to the start-date-setting 
process annually, is responsive to public comment (particularly from 
the harpoon category fishermen), and substantively does not result in 
effects different from those already analyzed. The only change from the 
current practice is that the fishery can start earlier now (June 1 
instead of July 15), and the only change from the proposed rule is that 
there will be no default date.

9. Rules Regarding Permit Category Changes

    This final rule allows a vessel owner to modify the category of an 
Atlantic Tunas or HMS permit issued for up to 45 days from date of 
issuance, provided the vessel has not landed bluefin tuna as verified 
via landings data. The previous restriction (10 calendar days) was 
intended to preclude vessels from fishing in more than one category 
during a year and to discourage speculative use of fishing permits. 
However, based on feedback NMFS has received over a number of years 
from vessel owners affected by the 10 day restriction, NMFS has 
concluded that limiting the time period during which a vessel may 
change permit categories to 10 calendar days is overly restrictive, and 
does not allow the flexibility to resolve the problems of a permit 
issued by mistake. The 45 day restriction achieves a better balance of 
allowing flexibility for vessel owners, while still preventing fishing 
in more than one permit category during a fishing year.

10. Northern Albacore Tuna Quota

    This measure implements the U.S. annual quota of northern albacore 
tuna recommended by ICCAT and establishes provisions for the accounting 
of overharvest and underharvest of the quota via annual specifications. 
Specifically, the codified U.S. northern albacore tuna quota will be 
adjusted as appropriate for prior year catch (up or down), including 
delayed adjustment (that would skip a year) or adjustments over several 
years. Consistent with the ICCAT recommendation, carry-forward of 
unused quota from one year to the next will be limited to 25 percent of 
the initial quota. NMFS will adjust and implement the following via 
regulatory framework adjustments: Actions to implement ICCAT 
recommendations, as appropriate; allocating and refining domestic 
allocation of the U.S. quota; establishing retention limits; 
implementing effort restrictions, etc. Although an FMP amendment is not 
needed, framework adjustments still go through extensive public and 
analytical review and must be consistent with the MSA and other 
applicable law.

11. Adjustment of Management Measures

    This final rule adds to the list of management measures that NMFS 
may modify or establish in accordance with the framework procedures of 
the 2006 Consolidated HMS FMP as amended, and provides examples of 
Amendment 7 measures that are within the scope of management measures 
currently listed in the regulations. With exceptions as noted under 
``Changes from Proposed Rule,'' these measures were contained within 
the proposed rule. The Amendment 7 measures not previously contained in 
the 2006 Consolidated HMS FMP are as follows: The quota shares or 
allocations for bluefin tuna; electronic monitoring requirements; and 
administration of the IBQ Program (including requirements pertaining to 
leasing of IBQ allocations, regional or minimum quota share 
requirements, quota share caps (individual or by category), permanent 
sale of shares, NED IBQ rules, etc.). The Amendment 7 measures that are 
within the scope of measures currently in the regulations are 
Performance metrics (within the scope of ``time/area restrictions'' in 
current regulations) and Angling category trophy south/north/Gulf of 
Mexico percentages (within the scope of ``allocations among user 
groups'' in current regulations).

12. Minor Regulatory Changes

    Amendment 7 is implementing minor regulatory changes (such as minor 
corrections and clarifications; the removal or modification of obsolete 
cross-references; and minor changes to definitions and prohibitions) to 
improve the administration and enforcement of HMS regulations. Several 
of these items have been identified by constituents over the past few 
years or were raised during scoping hearings. The corrections, 
clarifications, changes in definitions, and modifications to remove 
obsolete cross-references are consistent with the intent of previously 
analyzed and approved management measures. Under Sec.  635.5(c)(1), the 
relevant internet address will be updated. Under Sec.  635.20(a), the 
method of determining length of Atlantic tunas will apply regardless of 
permit type. Regulations at Sec.  635.21(c)(5)(iii)(B), will refer to a 
``gear restricted area,'' instead of a ``closed'' area. Under Sec.  
635.27(a)(7)(i), the reference to ``Fishery-independent research'' is 
changed to ``research.'' Under Sec.  635.27(a)(1)(iii), the descriptor 
``coastwide'' when referring to the General category fishery, is 
deleted. Under Sec.  635.71(b)(13), the prohibition is corrected to 
clarify that the relevant amount of bluefin tuna is the ``applicable 
limit'' instead of ``a'' bluefin tuna. These changes were not analyzed 
because they do not make substantive changes to the regulations.
    This final rule notifies the public that the collection-of-
information requirements contained in Sec. Sec.  635.5, 635.9, 635.14, 
635.15, and 635.69 have been approved by OMB and are effective. In 
addition this final rule will update the table on NOAA information 
collections approved by OMB that appears under 15 CFR part 902.

Response to Comments

    NMFS received over 188,000 written comments from fishermen, states, 
environmental groups, academia and scientists, and other interested 
parties. Comments included submissions of large numbers of identical or 
similar comments by organizations (or facilitated by organizations), as 
well as oral statements made at public hearings. All written comments 
can be found at https://www.regulations.gov/. The comments received 
resulted in changes, as described below, and in the section of this 
final rule called ``Changes from Proposed Rule''. Significant comments 
are summarized below by major topic together with NMFS' responses. 
There are 29 major issues:

[[Page 71524]]

    1. General Support for Proposed Measures (Comment 1),
    2. General Concerns (Comments 2-7),
    3. Codified Reallocation (Comments 8-13),
    4. Annual Reallocation (Comments 14-17),
    5. Modification to Reserve Category (Comments 18-19),
    6. General Comments About Gear Restricted Areas (Comments 20-42),
    7. Cape Hatteras Gear Restricted Area (Comments 43-49),
    8. Gulf of Mexico Gear Restricted Area (Comments 50-62),
    9. Pelagic Longline Vessels Fishing Under General Category Rules 
(Comment 63),
    10. Pelagic Longline Limited Conditional Access to Closed Areas 
(Comment 64),
    11. Pelagic and Bottom Longline Transiting Closed Areas (Comment 
65),
    12. Gear-Based Measures (Comments 66-67),
    13. General Comments About Individual Bluefin Quotas (Comments 68-
75),
    14. IBQ Eligibility (Comments 76-85),
    15. IBQ Leasing (Comments 86-88),
    16. Measures Associated with the IBQ Program (Comments 89-90),
    17. Closure of the Pelagic Longline Fishery (Comment 91),
    18. VMS Requirements (Comment 92),
    19. Electronic Monitoring Requirements (Comment 93),
    20. Automated Catch Reporting (Comment 94),
    21. Expand the Scope of the Large Pelagics Survey (Comment 95),
    22. Deployment of Observers (Comment 96),
    23. General Category Subquota Management (Comments 97-98),
    24. Harpoon Category Retention Limit (Comment 99),
    25. Angling Category Trophy Sub-Quota (Comments 100-101),
    26. Purse Seine Start Date (Comments 102-103),
    27. Permit Category Changes (Comment 104),
    28. North Atlantic Albacore Tuna Quota (Comment 105), and
    29. Other Concerns (Comments 106-107).

1. General Support for Proposed Measures

    Comment 1: NMFS received a wide range of comments expressing 
general support for the proposed conservation and management measures. 
Commenters stated that the proposed measures are a step in the correct 
direction for the future management of bluefin tuna, many noting 
support for Amendment 7 due to the inclusion of ``strong'' management 
measures, and others supporting the measures generally but urging NMFS 
to adopt stronger management measures than those proposed. Commenters' 
support was based upon their concerns about the current status of the 
bluefin stock and the desire to ensure long-term sustainability of 
bluefin for future generations of people. Some commenters urged NMFS to 
implement the preferred alternatives to ``Save the Bluefin,'' based on 
their perception that bluefin tuna are at imminent risk of going 
extinct. Commenters expressed concerns about the impacts of pelagic 
longline gear on bluefin tuna, noting the waste associated with 
discarding bluefin, especially in the Gulf of Mexico (GOM), and 
supported changes to the management of the pelagic longline fishery to 
reduce dead discards of bluefin tuna, as well as other highly migratory 
species, marine mammals, sea turtles, and other species. Commenters 
noted that many coastal communities depend upon healthy stocks of fish 
to contribute to their economic well-being and to that of individuals 
supported by commercial and recreational fisheries.
    Response: The need for management action and the specific 
objectives of Amendment 7 are described in detail in Chapter 1 of the 
FEIS, and the proposed rule. This final rule implements a suite of 
management measures that will achieve the Amendment 7 objectives in a 
balanced manner. Amendment 7 enhances long-term sustainability of 
bluefin tuna through reduced dead discards; improved monitoring; 
increased flexibility in the quota system to both account for dead 
discards and optimize allocation of quota among the diverse bluefin 
fisheries; and increased accountability in the pelagic longline 
fishery.
    Based upon the advice of ICCAT's Standing Committee on Research and 
Statistics, continued management with catch levels that comport with 
ICCAT recommendations should support further stock growth of the 
Western Atlantic stock of bluefin and is consistent with the ICCAT 
rebuilding plan given the current state of the science regarding the 
stock status. The MSA requires consideration of both the biological and 
economic impacts of conservation and management measures, and NMFS has 
determined that Amendment 7 measures will achieve a balance that will 
support the broader objectives of both stock rebuilding and continued 
viability of the commercial and recreational fisheries that depend upon 
bluefin tuna.
    The GOM has an important function in the ecology of the Western 
Atlantic stock of bluefin. The responses to comments 50 through 62 
address measures specific to the GOM. NMFS acknowledges that pelagic 
longline gear affects other species in addition to bluefin tuna and 
therefore, Amendment 7 measures may indirectly affect other species. As 
described in the FEIS analyses, the cumulative impacts on other species 
are likely to be neutral or positive.

2. General Concerns

    Comment 2: Many commenters, particularly those with small 
businesses involved in the pelagic longline fishery expressed concern 
regarding the potential for negative economic impacts of Amendment 7 on 
jobs, families, and communities, and noted the importance of pelagic 
longline-caught fish in supplying high quality seafood to the nation. 
These commenters were concerned about the potential for the Amendment 7 
measures to put people out of business, and ``destroy the pelagic 
longline fishery.'' Commenters stated that vessels that are currently 
only marginally economically viable would be at particular risk of 
going out of business, but were also concerned about any secondary 
impacts on related businesses such seafood dealers, gear manufacturers, 
etc. They urged NMFS to use a balanced regulatory approach to address 
the Amendment 7 objectives, and stated that Amendment 7 measures would 
increase uncertainty in the pelagic longline fishery.
    Response: The seafood supplied to the Nation by the pelagic 
longline fleet is valuable as both a source of food, and for the 
generation of income supporting local jobs, communities, and the 
broader economy. NMFS designed management measures to minimize economic 
impacts by relying on the combined effects of multiple management tools 
and incorporating flexibility into the system. Amendment 7 measures 
will affect all permit/quota categories and reflect the balance of 
addressing the issues confronting the bluefin tuna stock and management 
of the fishery while maintaining the viability of the pelagic longline 
and other fisheries dependent upon bluefin tuna. For example, 
reductions in dead discards will be achieved through the use of 
multiple measures, including gear restricted areas, the IBQ system, and 
IBQ allocation measures. This final rule will modify the quota system 
to increase management flexibility to allocate quota among categories 
and maximize opportunities to catch available quota, account for dead 
discards, and respond to changing conditions in the fishery. As the 
pelagic longline fleet is adjusting to

[[Page 71525]]

the suite of new measures, NMFS will have the flexibility to allocate a 
limited amount of additional quota to the pelagic longline vessels if 
necessary to prevent a fishery closure, and still, as a result of the 
gear restricted areas, and IBQ system, reduce the net amount of bluefin 
catch from the levels recently caught. The Amendment 7 management 
measures work together to reduce dead discards and otherwise reduce 
bycatch to the extent practicable, increase accountability, enhance 
reporting and monitoring, and optimize quota allocation, in a 
predictable but flexible manner. The potential economic impacts of the 
measures affecting the pelagic longline fleet are analyzed in Chapters 
5 and 7, of the FEIS, and the economic rationale is summarized in the 
Final Regulatory Flexibility Analysis. Public comments that address 
specific measures are addressed below in the responses to more specific 
comments.
    Comment 3: Commenters stated that when determining whether the 
pelagic longline fleet should be subject to additional restrictions, 
NMFS should consider the current and past regulatory environment and 
other factors as context. Commenters stated the pelagic longline 
fishery is already heavily regulated to minimize its environmental 
impacts, especially in the GOM (e.g., closures, weak hook requirement, 
observer deployment, bait requirements), and that progress is being 
made. Furthermore, increases in fuel costs strain fishers' ability to 
make a living, and events such as the 2010 oil spill in the GOM 
continue to be relevant. Commenters noted that bluefin tuna is managed 
at the international level and believe that the United States manages 
its citizens in a more effective and responsible way than other 
countries, and that NMFS should not further regulate bluefin tuna and 
increase the management disparity between the United States and other 
countries.
    Response: The context in which vessels operate, including current 
regulations and other factors was a relevant factor NMFS considered in 
determining whether new regulations were needed. NMFS took into 
consideration many factors in selecting preferred measures which 
address the diverse objectives of Amendment 7 in a balanced manner. 
Chapter 6 of the FEIS contains a cumulative impacts analysis which is 
broad in scope and takes into consideration past, present, and 
reasonably foreseeable factors. In addition, Chapter 2 in the FEIS 
contains a description of measures and the rationale for the preferred 
measures. The Final Regulatory Flexibility Analysis includes a 
description of the steps taken to minimize the economic impacts on 
small entities, and the reasons for the preferred measures.
    The United States manages its exclusive economic zone in accordance 
with applicable U.S. laws and in response to the unique characteristics 
of its fisheries, and therefore the U.S. regulations regarding bluefin 
tuna are different from the rules affecting citizens of other 
countries, which operate under different laws and circumstances. Where 
U.S. regulations are more restrictive than those abroad, NMFS believes 
that the corresponding ecological and socio-economic benefits that 
result from such restrictions are also likely to be greater than those 
abroad.
    Comment 4: Commenters stated that the Amendment 7 DEIS contained 
too much information, was too complex, and was difficult to understand. 
Others were concerned that the DEIS was developed too quickly, leaving 
out too many details such as those associated with implementation of 
measures.
    Response: The proposed rule clearly described the proposed 
management measures, and NMFS facilitated communication with the public 
via the internet and its Web site. The amount and complexity of 
information in the DEIS and the FEIS reflect primarily the scope of the 
objectives of Amendment 7 and the number of alternatives analyzed. The 
complexity of the DEIS and FEIS also is due to the diversity of the 
bluefin tuna fisheries, and the number of applicable laws and processes 
(both national and international). The DEIS and FEIS contain an 
Executive Summary which provides a condensed version of the relevant 
information including tables of important information. NMFS conducted 
public hearings (including a language interpreter for one hearing) that 
were designed to inform the public of the proposed measures in a 
readily understandable format, as well as provide opportunities for the 
public to comment and ask questions.
    Significant time and opportunity for public comment have gone into 
what has been a very thorough rulemaking process for this Amendment. 
The formal development of Amendment 7 began with the publication of the 
Notice of Intent (April 23, 2012; 78 FR 24161), which announced NMFS' 
intent to hold public scoping meetings to determine the scope and 
significance of issues to be analyzed in a DEIS and a potential 
amendment to the 2006 Consolidated HMS FMP. However, the informal 
development began several years previously. On June 1, 2009, NMFS 
published an Advanced Notice of Proposed Rulemaking (ANPR; 74 FR 26174) 
requesting specific comments on regulatory changes that would 
potentially increase opportunities for U.S. bluefin tuna and swordfish 
fisheries to fully harvest the U.S. quotas recommended by ICCAT while 
balancing continuing efforts to end BFT overfishing by 2010 and rebuild 
the stock by 2019 as set out in the 2006 Consolidated HMS FMP, 
consistent with the ICCAT rebuilding plan. The ANPR was in response to 
various public suggestions about bluefin tuna management during the 
previous two years, precipitated by declines in the total volume of 
bluefin tuna landings, which were well below the available U.S. quota, 
and a reduction in the overall allowable western Atlantic bluefin TAC 
recommended by ICCAT. In the ANPR, NMFS also requested public comment 
regarding the potential implementation of catch shares, LAPPs, and 
individual bycatch caps (IBCs) in highly migratory species fisheries. 
In response, NMFS received a wide range of suggestions for changes to 
the management of the U.S. bluefin tuna fisheries.
    While the DEIS and proposed regulations contained sufficient detail 
for the public to understand the measures and their potential impacts, 
including implementation, the FEIS and this final rule provide 
additional details to clarify certain aspects of implementation. These 
are not new measures but clarification of measures within the scope of 
the impacts analyzed by the DEIS. The regulatory process of proposed 
and final rulemaking allows for such flexibility to respond to public 
comments and implement regulations that address the regulatory 
objectives. The changes made from the proposed rule are summarized in 
the section of this final rule called ``Changes from Proposed Rule''. 
The comment period was extended to allow maximum public participation 
in this process.
    Comment 5: Some commenters asked why the focus of Amendment 7 is 
the pelagic longline fishery, perceived the Amendment as an ``unfair 
attack'' on this fishery, and asked why no additional restrictions were 
proposed for the General, Harpoon, or Angling categories. Other 
commenters did not want one user group in the fishery to bear the 
regulatory burden, but believed that all should sacrifice for the good 
of the fishery as a whole.
    Response: The focus of Amendment 7 is the list of stated 
objectives, including reducing and accounting for dead

[[Page 71526]]

discards, optimizing quota allocations, and enhancing reporting and 
monitoring. Although many of the measures being implemented will apply 
to vessels fishing with pelagic longline gear, all user groups will be 
subject to new regulations as appropriate and necessary, to contribute 
to the sustainability of the bluefin fisheries. Amendment 7 
fundamentally alters the pelagic longline bluefin tuna management 
structure in order to decrease dead discards and increase 
accountability, yet it also implements new restrictions for vessels 
fishing under the other permit categories. Although the components of 
the regulated bluefin fisheries are very different and therefore have 
been subject to different restrictions in the past, NMFS developed the 
Amendment 7 management measures based upon a common set of objectives.
    Comment 6: NMFS should exempt pelagic longline fishery participants 
that have never interacted with bluefin tuna from the programs proposed 
in Amendment 7.
    Response: Amendment 7 enhances long-term sustainability of bluefin 
tuna through reduced dead discards, improved monitoring, increased 
flexibility in the quota system to both account for dead discards and 
optimize allocation of quota among the diverse bluefin fisheries, and 
increased accountability in the pelagic longline fishery. NMFS 
acknowledges that some pelagic longline vessels may not encounter 
bluefin tuna as a function of where and how those individuals fish. 
However, the effective implementation of the management measures 
requires consistent treatment and participation of all of the 
participating vessels. NMFS cannot exclude individual HMS pelagic 
longline fishermen from the provisions of Amendment 7 given the 
mobility of the pelagic longline fleet and uncertainty about bluefin 
interactions by individual vessels in the future. Through this 
Amendment 7 final rule, NMFS is redesigning many operational aspects of 
the entire pelagic longline fleet. Exclusion of a small pool of 
individuals would create an inequitable management environment across 
the fleet. The measures implemented by this final rule do, however, 
include specific provisions that are based on the data that indicate 
that some participants have few or no interactions with bluefin. For 
example, under the IBQ program, eligible permitted vessels will receive 
a percentage share of the overall pelagic longline bluefin quota. The 
amount of quota share, either ``high'', ``medium'', or ``low'' will 
depend in part upon the vessel's historical rate of bluefin 
interactions. Vessels with a relatively low rate of bluefin 
interactions will qualify for a higher share of the total bluefin quota 
than vessels with a higher rate of interactions, and have access to the 
Cape Hatteras Pelagic Longline Gear Restricted Area.
    Comment 7: Several commenters stated that the solution to the 
challenge of how to account for all catch (landings and dead discards) 
in the context of a limited quota is to increase the amount of quota 
allocated to the United States through ICCAT (instead of the measures 
proposed under Amendment 7).
    Response: Although a larger U.S. quota would facilitate easier 
quota accounting (i.e., ensure that the total bluefin landings and dead 
discards do not exceed the total bluefin quota), a larger quota, 
without concurrent changes to the 2006 Consolidated HMS FMP is a short-
term solution and would not achieve the broader objectives of Amendment 
7 or the 2006 Consolidated HMS FMP. For example, a larger quota would 
not reduce the relative amount of dead discards of bluefin by the 
pelagic longline fishery, increase accountability for the pelagic 
longline fishery, optimize and provide additional flexibility to the 
quota system, or enhance reporting and monitoring. Furthermore, the 
United States does not independently set the quota at ICCAT and any 
quota established must be based on the best available scientific 
information ICCAT members (including U.S. delegates) vote to recommend 
an appropriate bluefin quota, based on the recommendation of the ICCAT 
scientists (which include U.S. scientists).

3. Codified Reallocation

    Comment 8: Many commenters did not support reallocation of 
additional quota to the Longline category as a means to achieve the 
Amendment 7 objectives. They stated that shifting quota would not 
reduce interactions with bluefin or dead discards and that providing 
additional quota would undercut the benefits of a ``catch cap'' (i.e., 
setting a strict maximum/cap on the amount of bluefin that could be 
caught, including dead discards and landings), would discourage the use 
of alternative gears, and would reward a ``destructive fishery'' by 
moving quota from quota categories that fish with more selective gear 
to the Longline category, which fishes with less selective gear and has 
more bycatch.
    Many commenters supported the codified reallocation for the reasons 
NMFS stated in the proposed rule, as well as other reasons including 
the statement that the Longline category may have a smaller `carbon 
footprint' than the other quota categories; the other categories are 
frequently under-harvested; the Longline category provides the U.S 
consumer access to important food sources; the General category exports 
much of the bluefin tuna it catches; and all user groups should bear 
the regulatory burden.
    Response: Amendment 7 implements systematic management and 
operational changes to reduce bluefin bycatch and maintain the pelagic 
longline directed fishery and the other bluefin tuna fisheries. The 
combined measures of this final rule, which include modified quota 
allocations, gear restricted areas, and individual bluefin quotas, will 
reduce bluefin catch and provide incentives to utilize alternative, 
more selective gear types. To achieve the Amendment 7 objectives of 
reducing dead discards while minimizing associated reductions in target 
catch, NMFS will allocate bluefin quota to the Longline category in 
amounts that exceed its current allocation of 8.1 percent, but will 
reduce levels of incidental bluefin catch by the Longline category. 
NMFS anticipates that the catch of bluefin by pelagic longline gear 
will be reduced by between 17 and 42 percent, depending upon the amount 
of quota allocated and leased, and fishery conditions. Some flexibility 
in the amount of quota allocated to the Longline and other quota 
categories is needed to accommodate the highly variable bluefin 
fisheries, as well as to mitigate some of the uncertainty and negative 
impacts associated with a brief transitional period in the pelagic 
longline fishery as it adjusts to the preferred Amendment measures.
    As explained in the FEIS, there are several reasons why additional 
quota should be provided to the Longline category, as one element of a 
more comprehensive strategy to resolve the challenge of accounting for 
bluefin catch and reducing dead discards. The pelagic longline fishery 
interacts with bluefin tuna when it targets swordfish, yellowfin tuna, 
bigeye tuna, and other species, because the occurrence of those species 
overlap as a result of their similar biology and ecology. The Longline 
category is required to account for dead discards and landings, yet the 
historical basis for the relative size of the Longline category's quota 
allocation (8.1 percent) was only landings, and did not consider the 
amount of quota that could be necessary to account for dead discards in 
addition to those landings within the total allowable catch.
    Based on the best available information, an allocation of 8.1 
percent has been inadequate to account for both

[[Page 71527]]

landings and dead discards since ICCAT adopted a requirement to account 
for dead discards within the existing quota. In recent years, NMFS has 
accounted for pelagic longline bluefin dead discards by relying in part 
upon under harvest of quota by other quota categories. The merits of 
allocating additional quota to the Longline category must be considered 
in the context of all of the other management measures being 
implemented by Amendment 7. Because the Amendment 7 measures 
implemented by this final rule will provide quota accountability on an 
individual vessel and category-wide basis for the Longline category, 
the amount of quota allocated to the category is of critical 
importance. Specifically, when the quota allocated to an individual 
vessel has been caught, the use of pelagic longline gear by that vessel 
will be prohibited. If the category-wide quota has been caught NMFS may 
prohibit all vessels in the fleet from fishing with pelagic longline 
gear. Based on current information regarding the range of bluefin tuna 
interactions that can be expected, continuing to limit the Longline 
category to a quota of 8.1 percent of the available quota would result 
in a shut-down in the fishery relatively early in the year. 
Notwithstanding the other measures being implemented by this final 
rule, which will result in reductions in dead discards by vessels 
fishing with pelagic longline gear, a quota allocation of 8.1 percent 
quota would result in a severely diminished or eliminated fishery, 
contrary to the objective of optimizing fishing opportunities.
    Comment 9: Commenters suggested that the amount of bluefin quota 
allocated to the Longline category should be reduced, or set at zero.
    Response: As discussed in the response to Comment 8 there are 
several reasons why the Longline category quota should be increased. 
Moreover, reducing the Longline category quota would not be consistent 
with the Amendment 7 objectives and would result in severe economic 
impacts that can be avoided through the use of other management tools. 
NMFS designed the quota allocation measures to minimize the economic 
impacts on the non-longline categories. The amount of quota being 
deducted from each of the categories (for allocation to the Pelagic 
Longline category under the ``Codified Reallocation Alternative'') is 
proportional to the size of each category's quota and is relatively 
small (approximately 7 percent). Secondly, the amount of quota that 
will be deducted from the categories is fixed, therefore, if the U.S. 
bluefin quota increases as a result of stock growth, the amount 
deducted from the various categories will not increase, but the total 
quota allocated to each category would increase. Furthermore, the other 
quota allocation measures implemented by this final rule (``Annual 
Reallocation'' and ``Modifications to Reserve Category'') provide 
mechanisms to reallocate quota back to these categories, if quota is 
available. The ``Annual Reallocation Alternative'' guarantees a minimum 
amount of quota to the participants in the Purse Seine fishery, and 
enables increases in quota allocations over time with increasing levels 
of bluefin catch. Providing an amount of bluefin quota to the pelagic 
longline fishery that both reduces dead discards, yet also accounts for 
a reasonable amount of incidental catch that can be anticipated (based 
on historical catch rates and the effect of Amendment 7 gear restricted 
areas) will enable the continued generation of revenue associated with 
the pelagic longline fishery's target catch.
    Comment 10: One commenter stated that providing 68 mt of 
``additional quota'' to the Longline category is not appropriate, and 
that the amount should be larger, because the discard estimation 
methodology that the amount was based on is no longer in use. Another 
commenter stated that the amount of additional quota should be smaller 
than 68 mt because the size of the U.S. quota has been reduced since 
the time the 68 mt set-aside was established.
    Response: Although the codified reallocation measure is intended to 
facilitate accounting for dead discards by the Longline category, the 
specific amount (68 mt) is not intended to serve as an estimate of 
current dead discards or establish a proportion of discards to 
landings. NMFS prefers 68 mt as the amount of quota to be contributed 
from all categories, resulting in augmenting the Longline category by 
62.5 mt, because the amount of additional quota achieves an appropriate 
balance of costs and benefits in the fishery and because of its 
historical relevance as a set-aside for dead discards, the inclusion of 
which was a critical factor in first establishing the formula under 
which all categories received their current allocations. No adjustment 
to those allocations was made when ICCAT first eliminated the dead 
discard allowance, and such an adjustment clearly is warranted given 
the resulting management challenges in accounting for both landings and 
dead discards within the available quota. Furthermore, providing a 
fixed amount of additional quota to the Longline category effectively 
limits the amount of reallocation into the future. In contrast, 
altering the base allocation percentages associated with each quota 
category would have had the potential effect of increasing the amount 
reallocation to the longline category if the total U.S. quota 
increases. Although increasing the amount of quota reallocated to the 
Pelagic Longline category in association with increases in total quota 
would facilitate accounting for incidental catch of bluefin and achieve 
one of the objectives of this Amendment, it would not effectively limit 
bycatch and reduce dead discards, which are also key objectives of 
Amendment 7.
    Comment 11: Commentors suggested that NMFS should, instead of the 
``Codified Reallocation'' of quota from all quota categories, 
reallocate quota from only the Purse Seine category; impose greater 
restrictions on the pelagic longline fishery to reduce their discards; 
or implement more restrictive gear restricted areas in the Gulf of 
Mexico and off Cape Hatteras in order to further reduce incidental 
bluefin tuna catch.
    Response: NMFS prefers that all quota categories contribute to 
addressing the challenge of accounting for dead discards, which, as 
explained in the response to Comment 8 is a problem which has multiple 
root causes, and is integrally related to the operation and management 
of the fishery as a whole. This Amendment 7 final rule addresses the 
issue of the recurring under-harvest associated with the Purse Seine 
fishery through the ``Annual Reallocation'' measure, which provides a 
predictable method to optimize the use of Purse Seine quota that might 
otherwise remain unharvested. This final rule implements new 
conservation and management measures applicable only to the Longline 
category, which will limit bycatch, reduce dead discards, increase 
incentives to avoid bluefin, and increase accountability. NMFS 
disagrees that greater restrictions on the Longline category--instead 
of reallocating a limited amount of quota-- would achieve the Amendment 
7 objectives in a manner that minimizes economic impacts to the extent 
practicable. As explained in the response to Comment 9 above, NMFS 
designed the quota allocation measures to minimize the economic impacts 
on the non-longline categories. The alternatives take into 
consideration the relative size of each category quota (in the case of 
the ``Codified Reallocation Alternative''), or the level of activity of 
vessels (``Annual Reallocation Alternative''), and are designed to 
consider changing levels of

[[Page 71528]]

quota or landings, respectively, in ways that reduce economic impacts.
    Comment 12: Many commenters strongly opposed reallocating quota to 
the Longline category because of concerns about the economic impacts on 
a particular geographic region (e.g., New England or mid-Atlantic), or 
quota category (e.g., the General category or the Angling category). 
Some commenters urged NMFS to respect the historical allocation 
percentages, and noted that reallocation would have the effect of 
pitting the different categories against each other. Some commenters 
suggested that NMFS consider other regulatory and economic 
circumstances facing vessels that may be impacted by a reduced quota.
    For example, Congressional representatives from Massachusetts, and 
the New England Fishery Management Council (Council) stated that the 
proposed reallocation would disadvantage the New England Fishery, the 
traditional Massachusetts fleet, and shore-side infrastructure, and 
would allow fleets from other regions to use a disproportionate amount 
of quota. They were concerned about the commercial fleet that is 
experiencing economic damage due to the decline in key stocks in the 
groundfish fishery. The Council suggested that NMFS assess the port-
specific impacts of reallocation. A commenter was concerned that 
recreational vessels in the mid-Atlantic region would be 
disproportionately affected by quota reallocation because the quota may 
not last until the time the bluefin are off the mid-Atlantic coast.
    Response: A reduction in quota may impact the revenue associated 
with a particular quota category or geographic region, or result in 
secondary economic impacts on a community. The FEIS analysis estimates 
that reallocation of quota to the Longline category could reduce 
revenue for individual vessels with a General category permit by $850 
and result in total reduction in maximum revenue of $542,000 for all 
General category vessels. Although thirty percent of the General 
category permits are associated with the State of Massachusetts (1,150 
permits as of October 2013), the total number of active vessels is 
substantially lower. Of the total number of General category permits 
issued throughout the Atlantic coast (3,783), the average number of 
General category vessels landing at least one bluefin between 2006 and 
2012 was 474 vessels (total). Thus, the number of active vessels in 
Massachusetts can be presumed to be substantial fewer than 1,150.
    When considering the social and economic impacts of actions, 
different communities and regions may be impacted to different degrees 
due to their unique regulatory and economic circumstances. The FEIS 
contains an analysis of the community impacts from the 2010 Deepwater 
Horizon/BP Oil Spill, and a 2013 analysis that presents social 
indicators of vulnerability and resistance for 25 communities selected 
for having a greater than average number of HMS permits associated with 
them. Those communities with relatively higher dependence upon 
commercial fishing included Dulac, LA; Grand Isle, LA; Venice, LA; 
Gloucester, MA; New Bedford, MA; Beaufort, NC; Wanchese, NC; Barnegat, 
NJ; Cape May, NJ; and Montauk, NY. The analyses are principally at a 
fishery-wide, or permit category level. The bluefin tuna fisheries (and 
other HMS fisheries) are widely distributed and highly variable due to 
the diversity of participants (location, gear types, commercial, 
recreational), and because bluefin tuna are highly migratory over 
thousands of miles, with an annual distribution that is highly 
variable. The specific ports and communities that provide the goods and 
services to support the fishery may vary as well, as vessels travel 
over large distances to pursue their target species. Due to this 
variability, it is difficult to predict potential revenue and secondary 
impacts of preferred management measures by port or by state. Vessels 
fishing in any geographic area in the Atlantic or Gulf of Mexico are 
likely to have only limited access to bluefin tuna, unless they travel 
long distances within the bluefin's migratory range.
    It is important to note that the actual economic impacts of 
reallocation of quota depend upon the total amount of quota allocated 
to (and harvested from) each of the quota categories, as a result of 
the combined effect of all of the measures that affect quota. For 
example, in addition to the amount of quota available as a result of 
the percentage allocations, and deductions for the 68 mt Annual 
Reallocation, there may be quota available for redistribution to 
various quota categories. Specifically, pursuant to the preferred 
``Annual Reallocation'' measure, as described in Chapter 2 of the FEIS, 
if the Purse Seine category has not caught 70 percent of its quota 
during the previous year, quota may be moved to the Reserve category 
and subsequently reallocated across multiple user groups. Furthermore, 
in recent years, many categories have not fully harvested their amount 
of quota available to them. Thus, the actual impacts of reallocation 
may be minor or may be mitigated by future reallocation when available.
    Reallocation of quota may result in frustration or negative 
attitudes among fishery participants of different quota categories, due 
to the changes to an historically accepted quota allocation system, or 
perceptions of unfairness. However, the modifications to the quota 
system are warranted for the reasons described in the response to 
comments 8 through 13 and fair due to the fact that all quota 
categories are affected in proportion to their quota percentage.
    As explained in the response to Comment # 9 above, NMFS designed 
the quota allocation measures to minimize the economic impacts on the 
non-longline categories. The management measures take into 
consideration the relative size of each category quota (in the case of 
the ``Codified Reallocation Alternative'', or the level of activity of 
vessels (``Annual Reallocation Alternative''), and are designed to 
consider changing levels of quota or landings, respectively, in ways 
that reduce negative economic impacts.
    Comment 13: Many recreational anglers wanted to insulate the 
Angling category from any potential effect of quota reallocation to the 
Longline category, citing the economic impacts and high value of the 
recreational bluefin fishery to the economy, as well as the economic 
investments of the participants and the current regulatory burden such 
vessels face. Vessel owners with General category commercial permits 
expressed concern about the potential impacts to the General category. 
Commenters requested additional quantitative analyses comparing the 
different quota categories, including primary and secondary impacts.
    Response: As stated above in the response to the previous comment, 
a reduction in quota may impact the revenue associated with a 
particular quota category or result in secondary economic impacts on a 
community. The objective of the allocation measures is not to 
reallocate quota based on economic optimization, but to: account for 
bluefin dead discards within the Longline category; reduce uncertainty 
in annual quota allocation and accounting; optimize fishing opportunity 
by increasing flexibility in the current bluefin quota allocation 
system; and ensure that the various quota categories are regulated 
fairly relative to one another.
    The reallocation measures of this final rule will minimize adverse 
economic impacts to the extent practicable because the relative amount 
of quota reallocated is small and proportional to the size of the 
category quota, and the overall quota system will be more

[[Page 71529]]

flexible and predictable and able to offset some or all of the negative 
economic impacts. This approach was developed consistent with our 
obligation under National Standard 6 (Conservation and management 
measures shall take into account and allow for variations among, and 
contingencies in, fisheries, fishery resources, and catches) and 
National Standard 8 (Conservation and management measures shall, 
consistent with the conservation requirements of this chapter 
(including the prevention of overfishing and rebuilding of overfished 
stocks), take into account the importance of fishery resources to 
fishing communities by utilizing economic and social data that meet the 
requirements of paragraph (2), in order to (A) provide for the 
sustained participation of such communities, and (B) to the extent 
practicable, minimize adverse economic impacts on such communities.)
    Although the FEIS includes estimates of the value of bluefin tuna 
quota by quota category for comparative purposes, the codified 
reallocation measure was not based on a specific economic analysis, but 
the achievement of the stated objectives.
    An elaborate quantitative analysis that compares the economic value 
of the Angling, Longline, and General category fisheries was not 
conducted in the FEIS due to the different characteristics of the 
Angling, Longline and General category fisheries, the variable amount 
of data associated with these fisheries, and the large number of 
factors and assumptions that contribute to estimating the value of a 
fishery. For example, under the IBQ system implemented by Amendment 7, 
bluefin tuna quota may be a limiting factor for a pelagic longline 
vessel, and therefore the lack of adequate bluefin quota, by even a 
small amount, could result in a vessel being prohibited from fishing 
with pelagic longline gear. In that circumstance, the value of the 
bluefin quota to the vessel owner may be very high, and related to the 
value of the target catch (e.g., swordfish or yellowfin tuna). On the 
other hand, the value of a bluefin tuna to a recreational angler or to 
the recreational fishery at- large may include the value of the 
recreational experience to the angler, as well as the associated goods 
and service supporting the fishing trip. The FEIS indicates that the 
Angling category would potentially face unquantified reductions in 
economic and social activity associated with the 7.36 percent reduction 
in available quota.
    In contrast, for a vessel fishing commercially in the General 
category, a high quality bluefin tuna sold to Japan may be extremely 
valuable and other catch is far less important.

4. Annual Reallocation

    Comment 14: Some commenters supported the annual reallocation 
measure as proposed, based on the underlying concept of tying the Purse 
Seine category annual allocation to the level of fishing activity by 
Purse Seine vessels (i.e., ``use or lose''), and the strategy of making 
unused quota available for use by other quota categories.
    Response: The Amendment 7 annual reallocation measure represents an 
improvement to the quota system by implementing a predictable means to 
utilize quota that may otherwise remain unused. Because the 
reallocation of quota from the Purse Seine category to the Reserve will 
occur prior to the beginning of the calendar year and prior to the 
start of the Purse Seine fishery, there will be increased 
predictability in the quota system. In contrast, in the past, there was 
uncertainty that resulted from the fact that the amount of unharvested 
quota associated with the Purse Seine category which would be available 
for quota accounting was unknown until the end of the calendar year. 
Because of that timing problem, the ability for other users to catch 
any unharvested quota was markedly diminished.
    Comment 15: Commenters suggested various modifications to the 
proposed annual reallocation measure. One commenter suggested that the 
concept be applied to the individual vessel instead of at the scale of 
the whole Purse Seine category in order to prevent the situation where 
an individual vessel may be disadvantaged. One commenter suggested that 
only 25 percent of the Purse Seine quota should be available for 
reallocation, instead of 75 percent. A commenter suggested that more 
than one year of catch should be the basis of the allocation, instead 
of a single year. One commenter suggested that the annual reallocation 
alternative be combined with an alternative that was not proposed, 
which would have allocated 40 percent of the Purse Seine category to 
the Longline category.
    Response: In response to the comment that the annual reallocation 
measure should be implemented at the level of the individual vessel in 
order to prevent a situation where a vessel fishes its full allocation 
but, due to inactivity by other vessels, is only allocated a portion of 
its base allocation for the subsequent year, NMFS modified the 
preferred alternative, and is implementing the measure at a vessel 
level (as described in detail in the preamble above, and the FEIS). 
Under the measure implemented by this final rule, annual reallocation 
will be based on the previous year's individual purse seine 
participants catch rather than category-wide catch. This management 
measure will tie quota allocation more closely to individual Purse 
Seine participants catch and create incentive for fishery participants 
to remain active in the fishery. Thus, the individual allocation could 
either increase or decrease. Without this modification to the 
alternative (from that proposed), individual allocations would be tied 
to the catch of the other participants in the fishery, which could have 
unfair results if catch were to vary greatly among the vessels. For 
example, in a year where overall category landings were low, an 
individual purse seine participant could be allocated a relatively low 
amount of quota, even if they landed a substantial portion of their 
allocation the previous year. As such, the alternative would not tie 
the allocation to individual catch and thus would not encourage full 
use of the category quota, which would be inconsistent with the intent 
of this alternative.
    Regarding the comment that only 25 percent of the Purse Seine 
allocation be available for reallocation (instead of 75 percent), if 
only a relatively small percentage of the quota were available for 
reallocation (and a relatively large percentage of the quota guaranteed 
for the Purse Seine allocation), there would be the possibility that 
Purse Seine participants remain inactive, yet only a relatively small 
percentage of the quota is transferred to the Reserve category. Such a 
scenario, which increases the likelihood that the Purse Seine quota as 
a whole may not be utilized by any category, would be inefficient and 
would not optimize the quota system. Making up to 75 percent of the 
quota available to the Reserve category will maximize the amount of 
quota that may be reallocated, and will provide a reasonable minimum 
amount for the Purse Seine participants. The measure implemented by 
this final rule guarantees vessels 25 percent of their base allocation, 
but makes up to 75 percent available for reallocation to the Reserve 
category, while not precluding Purse Seine participants from increasing 
their catches over time (multiple years).
    Regarding the comment that more than one year of catch should be 
used as the basis of the Purse Seine allocation, a time scale of two 
years would reduce the relative importance of a single year's catch in 
determining subsequent quota allocations, but may also decrease the 
availability of quota. The method of annual reallocation being

[[Page 71530]]

implemented (i.e., based on one year) will provide a better balance 
between providing a fair allocation to the Purse Seine category and 
providing a predictable system for utilizing quota among all categories 
that may otherwise be unused, and is consistent with the annual time 
scale applicable to quota related management measures (i.e., the 
relevant time scale for most aspects of the quota system is annual).
    Regarding the comment that the annual reallocation alternative 
should be combined with an annual allocation of 40 percent of the Purse 
Seine category to the Longline category, NMFS determined that the 
annual reallocation measure better meets the objectives of reducing 
uncertainty in annual quota allocation and accounting; optimizing 
fishing opportunity by increasing flexibility in the current bluefin 
quota allocation system; and ensuring that the various quota categories 
are regulated fairly in relative to one another. Under the annual 
reallocation measure implemented by this final rule, the amount of 
quota allocated to Purse Seine participants and the Reserve category is 
responsive to the level of activity of Purse Seine participants, but 
will not reduce the size of the Purse Seine category percentage (18.6 
percent), which is the foundation upon which the allocations to Purse 
Seine participants are based. In contrast, combining this measure with 
an annual allocation of 40 percent of the Purse Seine category to the 
Longline category would substantially reduce the size of the Purse 
Seine allocation regardless of the level of activity by Purse Seine 
vessels. Such a reduction is not consistent with the objective of the 
measure. The objective of the management measure is not to reduce the 
size of the Purse Seine allocation, but to make Purse Seine quota 
available for use by other categories in a predictable manner 
(reflecting a Purse Seine vessel's previous year level of activity), as 
well as allow levels of fishing activity of Purse Seine vessels to 
increase within the scope of the category's allocation.
    Comment 16: One commenter supported annual reallocation, but stated 
that the implementation of the annual reallocation measure should be 
linked to a Purse Seine fishery start date of June 1, as well as 
elimination of the provision limiting the relative amount of 73 to 81 
inch bluefin Purse Seine vessels may retain. One commenter did not 
support annual reallocation due to the different retention rules 
applicable to the Longline and Purse Seine categories. One commenter 
did not support annual reallocation because of the perception that the 
Purse Seine category has not had the same fishing opportunities as the 
other categories due to low availability of giant (greater than 81 
inch) bluefin, and the restriction on retention of large medium 
bluefin.
    Response: NMFS agrees that the Annual Reallocation alternative 
should be evaluated in the context of other regulations applicable to 
the Purse Seine category and Longline category. Modification of the 
start date of the Purse Seine category to June 1 is one of the measures 
being implemented by this Amendment 7 final rule. NMFS considered but 
did not further analyze an alternative that would modify or relieve the 
tolerance limit for large-medium fish in the purse seine category. Such 
an alternative was not further considered for reasons explained in 
Chapter 2 of the FEIS, including because recent data was not available 
about fishery operations that reflected to what extent the purse seine 
fishery experienced regulatory dead discards as a result of the 
tolerance limit. In furtherance of gathering such data and in the 
interest of examining bycatch in the fishery, on August 1, 2014, NMFS 
issued an exempted fishing permit that will exempt a Purse Seine vessel 
from the annual incidental purse seine retention limit on the harvest 
of large medium Atlantic bluefin tuna, in order to investigate and 
gather such data. NMFS could consider changes to the Purse Seine 
category size restrictions in a future rulemaking after further data-
gathering and consideration. The Annual Reallocation measure will not 
result in a negative ecological impact due to the different size 
restrictions applicable to the Purse Seine category and the Longline 
category as explained in Chapter 4 of the FEIS (the potential change in 
the amount of bluefin caught of different size categories is relatively 
small compared with the overall stock size).
    Comment 17: Commenters did not support annual reallocation for a 
variety of reasons. One stated that the Purse Seine category should not 
have a fluctuating quota; one was concerned that the Longline category 
will take the entire Purse Seine quota in the future, and one was 
concerned that reallocation to the Longline category would increase 
discards.
    Response: NMFS acknowledges that the Purse Seine quota may 
fluctuate under the annual reallocation measure, and that a fluctuating 
quota may have some negative implications for the Purse Seine fishery, 
such as challenges to long-term business planning, and fluctuating 
levels of revenue from the Purse Seine fishery. However, in the context 
of the fishery as a whole, the benefits of the annual reallocation 
measure are expected to outweigh the negative aspects, and the amount 
of quota fluctuation may be reduced by a consistent level of Purse 
Seine catches. Under the annual reallocation measure implemented by 
this final rule, Purse Seine participants will have similar fishing 
opportunities as the other commercial categories that direct on bluefin 
tuna, but if substantial portions of the quota remain unused, there 
will be a fair system to relocate quota in a predictable and efficient 
way. The annual reallocation system will also be responsive to any 
future increased levels of catch by Purse Seine participants. If a 
Purse Seine participant is allocated the minimum amount of quota (25 
percent of its base quota), with increasing catch over time, the 
individual participant could be allocated 100 percent of their base 
quota three years after being allocated the minimum amount. For example 
if during the first year of fishing the participant caught 22 percent 
of their baseline quota, for year two they would be allocated 50 
percent. During year two if the participant caught 46 percent of their 
baseline quota, for year three they would be allocated 75 percent of 
its baseline quota. If during year three they caught 71 percent of 
their baseline quota for year four they would be allocated 100 percent 
of its baseline quota.
    Under the annual reallocation measure, quota will be reallocated to 
the Reserve category, and potentially then to any or all quota 
categories. Transfers of quota from the Reserve category may include 
transfers to the Longline category, but NMFS will consider and balance 
the needs of the fishery as a whole. Quota could also be allocated to 
the other fishery categories as appropriate, considering the relevant 
factors in that year. Specifically, NMFS will base such decisions on 
the criteria described under the ``Modifications to the Reserve 
Category'' measure, as well as other applicable regulations and laws 
(e.g., the MSA National Standards (NS) such as the NS 9 requirement to 
minimize bycatch and bycatch mortality to the extent practicable).

5. Modification to Reserve Category

    Comment 18: Several commenters supported the modifications to the 
Reserve category regulations, which would increase the amount of quota 
that may be put into the Reserve category and increase the potential 
uses of Reserve category quota. One commenter stated that NMFS should 
be authorized to allocate from the Reserve category at any time. A 
commenter suggested

[[Page 71531]]

splitting the Reserve category into quota derived from under-harvest, 
and quota transferred from the Purse Seine category, to increase 
transparency. One commenter suggested redistribution of unused Reserve 
quota to active Longline category vessels during the last quarter of 
the year. A commenter stated that NMFS should make up to 50 percent of 
the Reserve quota available to the Longline category during the first 
three years of the IBQ Program.
    Response: The management measure regarding the Reserve category 
implemented by this final rule will provide additional management 
flexibility in the quota system and enable consideration of various 
quota strategies such as those suggested by the commenters. Although 
NMFS has the authority to allocate bluefin quota from the Reserve 
category at any time, the regulations implemented by Amendment 7 will 
enable NMFS to add underharvest from the previous year and any 
reallocated quota from the Purse Seine category to the Reserve category 
base allocation of 2.5 percent. Secondly, Amendment 7 adds new criteria 
to broaden and clarify the potential uses of the Reserve quota. It is 
not possible to evaluate the merits of the commenters' specific quota 
suggestions without any context. There are many potential uses of 
Reserve quota, including transfer to the Longline category in order to 
facilitate the transition to IBQs, or transfer to the General, Harpoon, 
Purse Seine, Angling, or Trap categories if warranted in order to 
increase fishing opportunity (while still preventing catch from 
exceeding the overall U.S. quota, and abiding by the other ICCAT 
restrictions). In order to facilitate transparency and full 
understanding of the quota system, NMFS will communicate clearly about 
how quota transfers are distributed among all quota categories, 
including descriptions of specific amount of quota derived from various 
sources.
    Comment 19: A commenter did not support the addition of new 
criteria to the existing criteria regarding in-season transfer of quota 
among categories because the criteria are long-standing and provide 
adequate flexibility. Commenters did not want to allow the Reserve 
category to be ``padded'' to cover Longline category dead discards, and 
did not want most of the Reserve quota to go to the Longline category.
    Response: The addition of the new criteria under Amendment 7 will 
not change the overall scope of NMFS authority to transfer quota among 
categories, but includes specific criteria that have the effect of 
clarifying potential uses of quota. NMFS agrees that an excessive 
amount of quota from the Reserve category should not be used to account 
for Longline category dead discards and has structured the alternatives 
to give management flexibility to move available quota to other 
categories as warranted. As stated in the response to Comment 8, under 
the Amendment 7 management measures, NMFS will allocate quota to the 
Longline category in amounts that exceed its current allocation of 8.1 
percent of the current annual quota, but will not allow historic levels 
of bluefin catch by the Longline category catch. In evaluating the 
amount of quota to reallocate to any category (including the Longline 
category), NMFS will consider the regulatory criteria for quota 
transfer, which include broad biological and economic considerations 
(e.g., ``effects of the adjustment on accomplishing the objectives of 
the fishery management plan''). For example, with respect to transfers 
of quota to the Longline category, some important considerations may 
include the amount of dead discards by pelagic longline gear relative 
to the size of the Longline category quota, the overall trend in the 
amount of dead discards and landings in the Longline category, the 
effectiveness of gear restricted areas, the status of the bluefin 
stock, trends in relevant data reporting, the amount of uncertainty 
regarding dead discard information, the level of accountability for 
bluefin dead discards by vessels in other quota categories, and the 
economic benefits of quota transfers. For transfers to other 
categories, important considerations may include 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; 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; the estimated amounts by which quotas for other gear categories 
of the fishery might be exceeded; effects of the adjustment on bluefin 
rebuilding and overfishing; and effects of the adjustment on 
accomplishing the objectives of the FMP.

6. General Comments About Gear Restricted Areas

    Comment 20: NMFS should avoid closures to the pelagic longline 
fishery. Any closure would disrupt markets.
    Response: NMFS acknowledges that GRAs designed to reduce bluefin 
tuna interactions and regulatory discards and to thus decrease bycatch 
have costs associated with them, and may have disruptive effects on 
local markets. NMFS designed the gear restricted areas (i.e., their 
timing and configuration) after considering the amount of reduced 
fishing opportunity as well as the amount of reduced bluefin 
interactions, in order to minimize potential disruptions in markets. 
NMFS designed the Cape Hatteras GRA to provide access opportunities to 
fishermen that have a proven ability to avoid bluefin, and are 
compliant with the observer and logbook requirements. As described in 
the Response to Comments # 46 and 47, NMFS specifically modified the 
Cape Hatteras Gear Restricted Area that was preferred in the DEIS, to 
reduce disruption to ongoing fishing in an adjacent area and therefore 
reduce potential economic impacts of the alternative. Evaluation of all 
alternatives considered both economic and ecological considerations 
(i.e., the potential reductions in revenue associated with estimated 
reductions in bluefin interactions).
    Comment 21: NMFS should not implement GRAs. NMFS received comments 
indicating that, due to a variety of reasons, commercial fishermen may 
be limited to certain fishing locations by the size and configuration 
of their vessels, insurance requirements, or safety concerns, and that 
some participants in the fishing fleet have nowhere else to fish 
(except in the location of the GRA) and they would be ``shut out'' of 
the fishery.
    Response: The underlying concept of the Cape Hatteras GRA minimizes 
economic impacts by providing conditional access to the area, based on 
performance criteria. The majority of the pelagic longline fleet will 
be allowed to fish in the area upon implementation of this Amendment 7 
final rule, and in the future if conditions for access continue to be 
met. In estimating ecological and socio-economic impacts of the Cape 
Hatteras GRA (called the ``Modified'' Cape Hatteras GRA in the FEIS), 
NMFS determined that 14 vessels (of 135 vessels) would not have access 
to this GRA. Of these 14 vessels, four vessels made over 75 percent of 
their sets in the Cape Hatteras GRA. Based upon the location of their 
historical catch, and to ensure that NMFS did not underestimate the 
potential economic impacts, the analysis assumes that these vessels 
would not redistribute effort outside of the GRA. Although these four 
vessels could redirect from fishing grounds off Oregon Inlet, NC to 
fishing grounds between Cape Fear and Cape Hatteras, such a change in 
fishing grounds may involve substantial costs (fuel, longer trips, 
possible transfer and dockage in a new port, etc.). However, NMFS 
modified the Cape Hatteras GRA

[[Page 71532]]

in a way that NMFS believes will achieve the reduction in bluefin 
discards, but will also allow fishermen to continue to deploy gear in 
regions south and west of the GRA and thereby reduce adverse impacts. 
With respect to the potential negative impacts of the Spring Gulf of 
Mexico GRA, approximately 61 vessels that fish in the Gulf of Mexico 
would be affected. Given the consistent pattern of historical catch of 
large numbers of bluefin tuna in certain times and locations by pelagic 
longline gear, NMFS determined that a GRA area in both the Gulf of 
Mexico and the Atlantic are necessary in order to achieve reductions in 
bluefin tuna dead discards, and that the potential economic impacts are 
unavoidable in order to achieve the necessary reductions. The potential 
negative socio-economic impacts were minimized by using an iterative 
process to design the gear restricted areas. The Spring Gulf of Mexico 
Pelagic Longline GRAs were designed in order to achieve a balance 
between a reduction in bluefin dead discards, protection of the Gulf of 
Mexico spawning stock, and continued operation of the pelagic longline 
fleet in the Gulf of Mexico. The specific boundaries of the area were 
determined by an iterative process that included consideration of 
public comment and input, by selecting areas of historical pelagic 
longline interactions with bluefin, and comparing both the anticipated 
reduction in bluefin interactions, and the estimated reduction in 
revenue, of different configurations. In addition, the time period was 
selected due to its occurrence during the peak bluefin spawning period 
in the Gulf of Mexico.
    The magnitude of the potential economic impacts result from the 
specific location and duration of the GRA. The size of the Spring Gulf 
of Mexico Pelagic Longline GRA is based upon the historical location 
and number of bluefin interactions, as well as the recent persistent 
trend in fishing effort shifting to the east of this area, and the 
known variability in the fishery in general. A smaller geographic area 
would be unlikely to achieve meaningful reductions in bluefin tuna 
interactions. The duration of the GRA encompasses the months with the 
highest number of interactions during the spawning period. An 
alternate, or shorter time period would coincide with neither the 
highest number of bluefin interactions, nor the bluefin spawning period 
peak.
    Comment 22: NMFS should evaluate the preferred alternatives for the 
Cape Hatteras GRA in light of the difficulties in implementing the 
Pelagic Longline Take Reduction Plan (a plan designed to reduce the 
incidental interactions of pelagic longline gear with marine mammals in 
order to reduce serious injury and mortality of long-finned and short-
finned pilot whales and Risso's dolphins in the Atlantic).
    Response: Several comments received suggested options similar to 
those currently employed under the Pelagic Longline Take Reduction Plan 
(described below). One comment noted the importance of developing a 
communication protocol similar to what is encouraged by the Pelagic 
Longline Take Reduction Plan for marine mammals. NMFS also encourages 
captains to communicate the location of bluefin to each other to aid 
fleet-wide avoidance practices. However, NMFS believes that this 
approach is best employed on a voluntary basis, as is done for marine 
mammals, given potential confidentiality concerns.
    Mandatory aspects of the Pelagic Longline Take Reduction Plan 
include a requirement to post the marine mammal safe handling and 
release placard in the wheelhouse and on the working deck, a 
restriction of mainline length to no more than 20 nmi when fishing 
within the Mid-Atlantic Bight, and special observer and research 
participation requirements for vessels operating in the Cape Hatteras 
Special Research Area (CHSRA). Unlike the requirements for operating in 
the CHSRA, Amendment 7 does not require fishermen fishing in the Cape 
Hatteras GRA to notify the agency between 48 to 96 hours prior to 
making a trip in order to arrange for observer coverage or research 
participation, in part because notifications of intent to fish are a 
standard requirement through VMS. Additionally, Amendment 7 does not 
require fishermen to retain or post any new placards, nor does it 
change the requirements regarding mainline length restrictions. It is 
important to note that the provisions of Amendment 7 do not replace the 
provisions of CHSRA or the Pelagic Longline Take Reduction Plan; 
pelagic longline fishermen are still expected to fully comply with the 
requirements outlined in the Pelagic Longline Take Reduction Plan while 
fishing with pelagic longline gear in any part of the CHSRA that may 
overlap with the Cape Hatteras GRA.
    Comment 23: A commenter stated that NOAA and ICCAT do not have 
sufficient scientific information to be able to predict where and when 
the distribution of bluefin may overlap with the pelagic longline fleet 
target species, and thus fishermen are also highly unlikely to be able 
to predictably avoid BFT while targeting other HMS species (swordfish, 
bigeye and yellowfin) except for certain times of year and in limited 
locations. Any rigid management framework that cannot adapt management 
to real-time distributions and availability of targeted and non-
targeted HMS species will be unlikely to optimize yield, support 
economic viability, and eliminate discards.
    Response: Bluefin tuna distribution is highly variable; however, 
the scientific literature as well as the data in the FEIS (Chapters 3 
and 4) support the conclusion that there is sufficient consistency in 
the patterns of distribution to make GRAs an effective management tool 
on a long-term basis. If warranted by changes in the characteristics of 
the fishery (e.g, long-term shifts in the distribution of bluefin tuna 
and target species), NMFS can re-evaluate whether GRAs continue to be 
an effective management tool that appropriately balances the associated 
costs and benefits.
    Comment 24: NMFS received suggestions to consider dynamic time-area 
closures because the distribution of bluefin is highly variable.
    Response: In the Predraft of Amendment 7, NMFS considered a real-
time monitoring system that would periodically close ``hot spots'' of 
bluefin interactions with the pelagic longline fleet. However, the 
Agency chose to not further analyze this alternative in the DEIS and 
the FEIS because a reporting and monitoring system to support this 
measure does not currently exist. Furthermore, the development and 
administration of such a system would be highly complex, and would 
require substantial resources to be able to fully monitor the entire 
region across which the pelagic longline fleet fishes, publish a rule 
quickly enough to respond to changing oceanic conditions, and provide 
adequate notice to the pelagic longline fleet. Instead of the dynamic 
measures supported by the commenter, which would respond to short-term 
aggregations of bluefin, the measures implemented by this final rule 
rely on a different strategy of reducing bluefin bycatch, based upon 
the long-term, consistent special and temporal patterns of bluefin 
distribution.
    Comment 25: NMFS received comments asserting that the Agency lacks 
sufficient data to make a reliable determination regarding true 
interaction rates of any given vessel. Some commenters felt that NMFS 
should prohibit fishing in areas of concern until more reliable data 
collection methods are in place, whereas others felt that NMFS should 
not prohibit fishing until more reliable data collection methods are in 
place. Several commenters cited

[[Page 71533]]

weaknesses in logbook data and asserted that logbook data are not 
sufficient to verify vessel behavior, count interactions, or monitor 
bycatch.
    Response: As indicated in the Response to Comment # 82 NMFS 
recognizes that some vessel operators may have under-reported in their 
logbooks the amount of bluefin tuna they have caught. NMFS conducted an 
analysis that compared logbook data to observer data to get an 
indication of how vessel-reported logbook data compares with observer 
data, because observer data can serve as a useful validation tool. 
Compared to the observer data, the logbook data showed both over-
reporting and under-reporting of bluefin tuna, with the average amount 
of under-reporting of bluefin discards of 28 percent at the aggregate 
level for all vessels. Individual vessel data varied substantially from 
being more than 90 percent accurate with observer data for that trip to 
more than 75 percent inaccurate compared to observer data for that 
trip. These data indicate a wide range in reporting accuracy at a 
vessel level. Specific information on this analysis is in the Appendix 
of the FEIS. Notwithstanding potential under-reporting by some vessels, 
logbook data are the most complete source of available data regarding 
vessel level interactions with bluefin tuna because 100 percent of 
pelagic longline vessels are required to submit logbook reports for 
every set.
    NMFS also analyzed observer data in order to verify the spatial and 
temporal patterns of bluefin interactions that were noted in the 
logbook data (Chapter 3 of FEIS). Although the observer data could not 
be compared directly to the logbook data because it is collected with 
lower frequency and at a different scale, the observer data indicated 
similar patterns of bluefin interactions as the logbook data. The 
logbook data represents the best available source of fine-scale 
information on bluefin interactions at this time. This final rule also 
implements enhanced monitoring and reporting requirements that will 
improve information on bluefin interactions in the pelagic longline 
fishery (i.e., VMS and electronic monitoring).
    Comment 26: NMFS received multiple comments regarding access to the 
GRAs based on performance. Comments 26-42 relate to specific 
performance criteria. A commenter stated that NMFS should include 2012 
data in the IBQ Allocation calculations and GRA area access 
calculations.
    Response: NMFS agrees that 2012 data should be included in these 
data calculations in order to reflect the characteristics of the 
fishery in the recent past. The 2012 data set represents the most 
recent calendar year for which complete data was available at the time 
the FIES analysis was begun. Therefore, in the FEIS NMFS included sets 
made in 2012 in the pool of data used to calculate the bluefin-to-
designated target species ratios for allocation and GRA access 
analyses. NMFS also included 2012 data from the Pelagic Observer 
Program and the Logbook program to calculate the Observer and Logbook 
Compliance scores. NMFS also adjusted the historical qualification 
period from 2006 to 2011, to 2006 to 2012, in order to better reflect 
the variability in the fishery and account for recent trends.
    Comment 27: Commenters expressed concern about access to the GRAs 
based on performance criteria based on logbook data, validity of which 
the commenter stated was questionable, given the possible incentives to 
misreport bluefin interactions through the logbook.
    Response: As explained in Response to Comments 25 and 82 NMFS 
acknowledges that there are issues with logbook data accuracy; however, 
it offers the most comprehensive data on the fishery and provides a 
means to analyze individual vessel behavior. HMS logbook data 
represents a census of the fishery.
    Comment 28: One commenter stated that there was no regulation that 
vessels must avoid bluefin tuna in the past, and vessels should not be 
singled out now for catching more bluefin by chance.
    Response: Directed fishing on bluefin tuna with pelagic gear is not 
permitted. Any interactions with pelagic longline are incidental to 
other directed fishing and regulations have been designed to discourage 
any such interactions and to minimize bycatch to the extent 
practicable. NMFS has managed the pelagic longline fishery as an 
incidental category for bluefin for many years and has implemented a 
number of regulations to limit the bluefin that can be retained and to 
discourage interactions with bluefin (e.g., limiting the number of 
bluefin that can be landed based on the weight of target species, 
implementing a time-area closure for bluefin in June in the northeast, 
requiring weak hooks in the Gulf of Mexico). The pelagic longline 
category as a whole has traditionally been allocated 8.1 percent of the 
total U.S. quota to cover incidental catch during directed fishing 
operations for other species, but those catches (including dead 
discards) have been significantly over that subquota in recent years.
    Through analysis of logbook data between 2006 and 2012, NMFS noted 
that a small number of vessels were responsible for the majority of 
reported bluefin interactions. In this and previous rulemakings, 
members of the pelagic longline fleet have repeatedly asked for 
increased individual accountability in the fishery. Amendment 7 is 
implementing management measures that will address this situation, and 
will hold individuals accountable for their bluefin interactions.
    Comment 29: NMFS should not penalize small vessels because of their 
inability of provide adequate space for observers.
    Response: NMFS designed the scoring system for the Pelagic Observer 
Program Performance metric being implemented by this final rule such 
that valid reasons for not carrying an observer will not be penalized. 
Observer coverage is integral to the management of the fishery as it 
contributes important, objective data in support of the management of 
protected species and provides important information on the pelagic 
longline fishery utilized in the management of bluefin and other HMS 
species. Due to the importance of having enough observed trips to meet 
the observer coverage targets required by national and international 
obligations, NMFS also evaluated vessels on the number of trips 
observed. The agency utilizes observer data to develop estimates of 
protected resources interactions and estimates of discards of other 
species including bluefin. These data are essential for stock 
assessments and are critical in meeting international management 
obligations. Under ATCA and as a contracting party of ICCAT, the United 
States is required to take part in the collection of biological, catch, 
and effort statistics for research and management purposes.
    Comment 30: NMFS received comments on the data used to calculate 
scores for performance metrics and IBQ allocations. NMFS received 
comments indicating that dolphinfish and wahoo from the HMS logbook 
needed to be included in the performance metric scoring. Several 
commenters requested the Agency include landings of designated target 
species (primarily dolphinfish and wahoo) reported in the coastal 
fisheries logbook in calculations used to assess IBQ and performance. 
Other commenters suggested that NMFS should use all pelagic longline 
logbooks in determining the Bluefin Avoidance Score.
    Response: Dolphinfish and wahoo reported in the HMS logbook were 
used to develop scores for performance

[[Page 71534]]

metrics. However, landings of these species reported in the Coastal 
Fisheries Logbook were not used in the performance metrics for several 
reasons. (1) The Coastal Fisheries Logbook would not contain landings 
of the primary target species of the HMS pelagic longline fishery 
(swordfish and BAYS tunas), and would not provide for the reporting of 
bluefin tuna interactions. Therefore, the actual ratio of landings of 
designated target species to bluefin interactions cannot be accurately 
calculated for sets reported in the Coastal Fisheries Logbook. (2) 
Fishermen in the southeast Atlantic that report in the Coastal 
Fisheries Logbook could have an advantage over fishermen in the Gulf of 
Mexico or New England that do not have the same type of reporting 
requirements and the same mechanism to report retention of dolphinfish. 
(3) The HMS logbook and the Coastal Fisheries Logbook require different 
types of data to be reported which creates a mismatch in how the data 
can be combined and collectively analyzed, which in turn could result 
in inconsistencies between the two data sets. (4) Specific geographic 
data (i.e., latitude and longitude for each set) that would were 
reported in the HMS logbook and used to identify and evaluate the 
ecological and economic effects of gear restricted areas are 
unavailable through the Coastal Fisheries Logbook. Rather, fishermen 
report location where the majority of all catches of each species were 
made through reference to a 1[deg] latitude x 1[deg] longitude grid 
cell. If NMFS were to incorporate data at the finest scale available 
(1[deg] latitude x 1[deg] longitude), NMFS would have to disregard the 
overwhelming number of requests for management (and visualization/
depiction of data) at a finer scale. (5) The Coastal Fisheries Logbook 
requires landings per trip to be reported by weight whereas the HMS 
Logbook requires all interactions per set to be reported by number. 
Also, fishermen reporting in the Coastal Fisheries Logbook may report 
gutted or whole weight. (6) A percentage (20%) of fishermen reporting 
through the Coastal Fisheries Logbook are selected to report discarded 
fish through a Supplemental Discard and Gear Trip Report form at the 
trip level, whereas all fishermen reporting in the HMS Logbook must 
provide this information for every set, which also creates a mismatch 
in how data can be combined and collectively analyzed. For these 
reasons NMFS used dolphinfish and wahoo catch data from the HMS 
logbooks to develop scores for performance metrics, but did not use the 
landings data reported in the Coastal Fisheries Logbook.
    Comment 31: NMFS should not base performance metrics on the 
Northeast Distant (NED) Area.
    Response: NMFS incorporated all data reported through the HMS 
logbook in the calculation of performance metrics, regardless of where 
vessels fished. Exclusion of the sets made in the NED area could result 
in certain vessels that had a lot of fishing effort in this region 
receiving a competitive advantage or a disadvantage in terms of 
performance metric scores. Further, vessels that fish in the NED are 
not exempt from observer (if selected) or logbook reporting 
requirements.
    Comment 32: NMFS should consider that, by allowing access based on 
the performance of a vessel, the new owner of a vessel may be evaluated 
based on prior poor vessel performance under a different owner.
    Response: As explained below, NMFS determined that the relevant 
historical activity should be that associated with the vessel (and not 
the permit), and therefore, the preferred IBQ Program would evaluate 
vessels based on all activity attributed to that vessel through the 
qualification time period (2006-2012). In general, the use of 
historical data as part of an individual quota share (or a performance 
criteria) can be complex due to historical transfers of the limited 
access permit from one vessel to another or changes in vessel 
ownership. The quota share formula implemented by Amendment 7 is based 
upon historical data associated with a permitted vessel. NMFS 
determined that the historical `platform' upon which to base the quota 
share should be the vessel history instead of the permit history for 
the following reasons: (1) Vessel history reflects current and 
historical participation in the fishery; (2) the regulations regarding 
the transfer of Atlantic Tunas Longline category permits do not address 
fishing history (i.e., do not specify whether when an Atlantic Tunas 
Longline category permit is transferred from one vessel to another, 
whether the fishing history also transfers); and (3) the structure of 
the databases in which the logbook data resides uses the vessel as a 
key organizing feature, and therefore the compilation of data 
associated with a particular vessel is simpler and less prone to error 
(i.e., it is more complex to compile data based on an individual permit 
history). However, once the initial allocations are established, 
bluefin quota shares will be associated with the permit for future 
vessel transactions. For example, if a permitted vessel has quota 
shares, and the owner of the permitted vessel decides to sell the 
permit but keep the vessel, the seller of the permit will no longer 
have any privileges with respect to the IBQ Program (they would only 
have fishing both without a permit). In contrast, the buyer of the 
permit would have the eligibility for the IBQ associated with that 
permit (although the permit buyer would need to put that permit on a 
vessel in order to receive quota allocation).
    Comment 33: One commenter asked whether the public will know the 
identity of vessels excluded from the GRA.
    Response: NMFS does not intend to publicly release the identity of 
vessels without access to the GRA.
    Comment 34: NMFS received several suggestions concerning changes to 
the logbook performance metric, logbook reporting requirements, and 
requests for faster logbook submission methods. Some commenters felt 
that NMFS should not include a logbook performance metric. Commenters 
noted that logbook reports are usually late because it takes time to 
collect the required economic information, and sometimes fishermen are 
out for extended periods of time. Dealers sometime take 2 or more weeks 
to get a return done, which results in delays in submitting data to the 
Logbook Program. For offshore/distant water fishermen, it sometimes 
takes more than a week for the receipt of information from dealers, 
especially if the catch is offloaded in Canada. The commenters felt 
that if NMFS wants to retain this performance metric, the agency should 
require that dealer tally sheets be submitted separately from the 
logbooks. NMFS received suggestions to transition the logbook 
performance metric from the date of opening the letter to the date of 
receipt by the Agency to allow for contingencies such as a government 
shutdown (or other factors that may delay Agency officials from opening 
letters). A commenter felt that NMFS should establish a tolerance for 
the mailing of logbook reports from different parts of the country to 
Miami, FL, because fishermen in Florida have an advantage over 
fishermen based in more distant locations (e.g., Maine) due to the 
length of time it takes to deliver mail. NMFS was asked to establish a 
process whereby fishermen can submit logbooks by fax or online to 
minimize delays due to the distance a letter has to travel.
    Response: Current regulations require fishermen to submit logbooks 
within 7 days of offloading. Logbook reports must include weighout 
slips showing the dealer to whom fish were

[[Page 71535]]

transferred, the date of transferal, and the carcass weight of fish for 
which individual weights are recorded. Timely logbook reporting is a 
critical component of quota monitoring, particularly for species like 
HMS that have small annual or seasonal quotas. Many pelagic longline 
fishermen are able to comply with the requirement to submit logbooks 
within seven days. There are members of the fleet, however, that take 
months to a full year to submit logbook reports. These late reports, 
either late due to logistics or non-compliance, make quota management 
of HMS very difficult, especially if quotas are small. Amendment 7 will 
require catch reporting via VMS units to ensure timely report of 
bluefin catches. NMFS may pursue faster mechanisms to report logbooks 
in the future, such electronic logbooks.
    Comment 35: NMFS should have solicited feedback on performance 
criteria from the industry. The commenter felt that NMFS developed the 
performance criteria in a ``black box'' and did not provide ample 
notification that the agency would be evaluating individuals on these 
metrics.
    Response: Significant time and opportunity for public comment have 
gone into what has been a very thorough rulemaking process for this 
Amendment. NMFS repeatedly solicited public feedback and Advisory Panel 
input on the alternatives in Amendment 7, including the development of 
the performance criteria. NMFS has discussed the management of bluefin 
discards with the public and with the Advisory Panel since a 2009 
Advanced Notice of Proposed Rulemaking. NMFS indicated in both the 
Predraft and the DEIS that a small number of individuals were 
responsible for the majority of bluefin interactions. NMFS received 
numerous public comments in Amendment 5 to the Consolidated HMS FMP 
indicating that the pelagic longline fleet desired individual 
accountability measures, instead of holding the entire fleet 
responsible for high interactions of a few vessels with dusky sharks. 
NMFS developed the performance criteria as a means to evaluate 
fishermen and hold them individually accountable for reduction of 
bluefin discards and compliance with the reporting and monitoring 
regulations. These performance criteria offer an alternative to fleet-
wide time/area closures. Furthermore, the multiple criteria offer 
individuals who have moderate levels of bluefin interactions to still 
access GRAs provided that they comply with the reporting and monitoring 
requirements.
    Reporting and observer requirements have been in place for several 
years, and NMFS regularly communicates with constituents concerning the 
rules pertaining to these programs. NMFS notifies individuals selected 
for reporting annually with letters that detail reporting requirements. 
Furthermore, NMFS produces outreach materials, compliance guides, and a 
Web site that clearly state reporting requirements. With respect to the 
observer program, NMFS also clearly notifies individuals of vessel 
selection for observer coverage. The Pelagic Observer Program regularly 
communicates with the points of contact (captains and vessel owners) 
regarding the organization and scheduling of observed trips. Commercial 
fishermen are therefore provided ample notification of the regulations 
concerning observer and logbook reporting.
    Comment 36: NMFS should not deny access to individuals who are good 
bluefin avoiders. The intent of the rule is to reduce bluefin discards, 
not to penalize fishermen for being out of compliance with observer or 
reporting requirements. NMFS Office of Law Enforcement should be solely 
responsible for penalizing fishermen that are out of compliance.
    Response: NMFS regulations that require fishermen to submit 
logbooks or to carry observers are designed to collect information that 
NMFS uses to manage HMS fisheries. When fishermen do not comply with 
such regulations, they jeopardize NMFS' ability to develop sound 
management strategies, conduct stock assessments with the best 
scientific information available, estimate bycatch interactions and 
bluefin discards, and comply with international treaty requirements. As 
such, under the Amendment 7 regulations, NMFS will consider a 
fisherman's compliance with current logbook and observer requirements 
when evaluating whether or not NMFS will grant that fisherman access to 
the Cape Hatteras GRA--an area where interactions with bluefin tuna are 
likely. NMFS wants to ensure that fishermen allowed access to the Cape 
Hatteras GRA will abide by all relevant regulations to facilitate 
monitoring of fishing activities in these areas.
    Comment 37: NMFS should consider vessels that have no history or 
are new to the fishery as qualified to access the closed areas 
(``innocent until proven guilty''). Vessels should have a ``clean 
slate'' at the start of each year and access to the GRA. If they 
interact with too many BFT, then they should be closed out.
    Response: The GRAs are selected as locations with relatively high 
numbers of historical bluefin interactions. The Bluefin Avoidance Score 
was designed to evaluate a vessel's ability to avoid bluefin tuna, 
relative to its landings. New entrants to the fishery will have 
performance metrics associated with the permit that the entrant 
purchased. All vessels will have a new performance score at the start 
of each year, based upon the three most recent years of available data, 
and therefore performance scores may improve over time.
    Comment 38: Some commenters were concerned about the incentives 
that a conditional access program may provide.
    Response: The concept of providing conditional access to a GRA 
(i.e., the Modified Cape Hatteras Pelagic Longline GRA) is based on the 
historical data, which indicate that a relatively small number of 
vessels are responsible for a large portion of the bluefin tuna 
interactions. Because conditional access will be based upon the rate of 
bluefin tuna interactions (as well as reporting metrics), the program 
rules provide incentives to all pelagic longline vessels with respect 
to bluefin tuna interactions. Specifically, vessels with historically 
high bluefin tuna interactions that are not allowed access will have an 
incentive to reduce their rate of bluefin interactions if they desire 
to fish in the GRA. Conversely, vessels with a relatively low rate of 
bluefin interactions that are allowed to fish in the GRA will have an 
incentive to continue to avoid bluefin in order to maintain a low rate 
of bluefin interactions. In contrast, if all vessels were precluded 
from the Modified Cape Hatteras GRA, regardless of the amount of a 
vessel's interactions with bluefin, there would be no incentives with 
respect to the catch of bluefin tuna (and the scale of potential 
economic impacts would be disproportionate to the estimated amount of 
reduction in bluefin tuna interactions). No access to the Gulf of 
Mexico GRAs was proposed because the interactions with bluefin in the 
Gulf of Mexico are more evenly distributed among all of the vessels 
fishing there (and not concentrated among a few vessels as in the area 
off Cape Hatteras).
    Comment 39: NMFS should not count bluefin interactions from sets 
made while participating in NMFS programs (e.g., shark research 
fishery) towards the calculation of bluefin to designated target 
species ratios because fishermen fish differently on those trips.
    Response: NMFS did not exclude such trips because of the relatively 
few

[[Page 71536]]

vessels that might be affected; participation in research programs 
could have affected vessels in either a positive or negative manner. In 
most instances, minor differences in the amounts of catch of either 
target species or bluefin would not likely affect a vessel's allocation 
due to the three tiered allocation system (i.e., a range of catch 
values is designated to each of the three tiers), and the performance 
metric scoring system (based on a range of values). Fishermen that 
believe they have been disadvantaged through participation in research 
may appeal access and IBQ decisions through the two-stage appeal 
process.
    Comment 40: NMFS should calculate performance metrics only on the 
most recent data available. NMFS needs to revisit criteria for 
inclusion--some vessels have hardly fished over the last few years.
    Response: NMFS agrees that the inclusion of newer data is 
important. In the Predraft and the DEIS, NMFS analyzed and developed 
alternatives based on pelagic longline data from 2006 to 2011. NMFS 
included an additional year of logbook data (2012) in the FEIS analyses 
for each time-area alternative. In the FEIS, the 2006-2012 time period 
was chosen because the last significant bluefin fishery management 
action was the 2006 Consolidated HMS FMP, and therefore fishing 
behavior from prior to 2006 would have been based on previous 
management measures and may not be representative of the current 
fishery. The 2006 to 2012 time period is long enough to minimize the 
influence of one-time events such as natural or man-made disasters. 
NMFS intentionally designed the GRAs to be flexible and allow fishing 
vessels that have been affected by short-term events to participate in 
the pelagic longline fishery.
    The Agency will distribute letters indicating the final performance 
metrics and what members of the fishery could expect by the start of 
the fishing year. Initial performance metrics will be calculated on the 
entire historical time period considered for determining IBQ 
allocations. However, in subsequent years, the performance metrics will 
be calculated on the previous three years of available data.
    Comment 41: NMFS should not base access on history. High bluefin 
interactions in one year do not necessarily mean that there will be 
high bluefin interactions the following year.
    Response: As noted in the response to Comment # 44 NMFS 
acknowledges that past performance may not be a perfect indicator of 
future performance. However, one of the objectives of the use of 
Performance Metrics is to provide incentives for future fishing 
behavior that will result in reduced rates of interactions between 
pelagic longline gear and bluefin. Although there is variability in 
fish distribution and activity from one year to the next, there are 
certain vessels that consistently report high interactions with bluefin 
tuna through logbooks. As explained in Response to Comment # 38 
conditional access based on past performance provides continuing 
incentives to avoid bluefin tuna and to comply with relevant reporting 
and monitoring requirements.
    Comment 42: NMFS should evaluate vessels on the number of 
interactions with protected resources (e.g., pilot whales) as part of 
the criteria for accessing the Cape Hatteras GRA.
    Response: Although Amendment 7 management measures are consistent 
with the relevant laws and regulations regarding protected species, the 
objectives upon which it is based did not include any specific 
objective regarding protected species, and did not include any specific 
management measures regarding protected species. Therefore the 
commenter's suggestion to incorporate criteria relating to protected 
resources is outside of the scope of the Amendment 7. The impacts of 
the Amendment 7 measures on protected species are analyzed in this 
FEIS.

7. Cape Hatteras Gear Restricted Area

    Comment 43: NMFS received a large number of comments supporting the 
five-month Cape Hatteras Pelagic Longline GRA as proposed (DEIS 
preferred Alternative). NMFS also received comments suggesting 
modifications to the scope and duration of the area, and commented on 
whether or not conditional access to the area is appropriate.
    Response: The Cape Hatteras area has consistently been a location 
where a high number of bluefin interactions with the pelagic longline 
fleet have occurred, and was initially identified in the Predraft to 
Amendment 7 as a geographic area where a GRA may be warranted. 
Responses to the specific suggestions regarding the Cape Hatteras GRA 
are below (see responses to comments 43-49. As described in comments 46 
and 47, NMFS modified the preferred alternative in the FEIS (the 
``Modified Cape Hatteras Pelagic Longline GRA'').
    Comment 44: Some commenters supported the proposed GRA because 
access would be granted to some vessels, while other commenters stated 
that NMFS should implement GRAs without conditional access. Commenters 
noted that the Agency would be penalizing fishermen for bluefin 
interactions (specifically, discards) when there was not previously a 
regulation that required bluefin avoidance. Some commenters felt that 
the implementation of performance metrics is too severe a management 
measure, and fishermen that might be excluded from fishing in the Cape 
Hatteras GRA noted that the proposed measures would have severe 
economic implications for their businesses. Some commenters only 
supported the Cape Hatteras GRA if pelagic longline vessels are allowed 
to fish under General category rules in the area.
    Response: Analysis of logbook data from 2006 through 2012 indicated 
that a relatively low number of vessels were responsible for the 
majority of bluefin interactions in the Atlantic. NMFS developed the 
concept of conditional access to the GRA in light of this pattern, in 
order to incentivize individual fishermen to avoid bluefin tuna, and to 
reduce economic impacts to the extent practicable.
    A system of conditional access will hold fishermen individually 
accountable for their interactions, as opposed to holding the entire 
fleet responsible for high interactions by a small number of fishermen. 
Because conditional access will be based upon the rate of bluefin tuna 
interactions (as well as reporting metrics), the program rules will 
provide incentives to all pelagic longline vessels with respect to 
bluefin tuna interactions. Specifically, vessels with historically high 
bluefin tuna interactions that are not allowed access will have an 
incentive to reduce their rate of bluefin interactions if they desire 
to fish in the GRA. Conversely, vessels with a relatively low rate of 
bluefin interactions that are allowed to fish in the GRA will have an 
incentive to continue to avoid bluefin in order to maintain a low rate 
of bluefin interactions. In contrast, if all vessels were precluded 
from the Modified Cape Hatteras GRA, regardless of the amount of a 
vessel's interactions with bluefin, there would be no incentives with 
respect to the catch of bluefin tuna (and the scale of potential 
economic impacts would be disproportionate to the estimated amount of 
reduction in bluefin tuna interactions). No access to the Gulf of 
Mexico GRAs was proposed or implemented because the interactions with 
bluefin in the Gulf of Mexico are more evenly distributed among all of 
the vessels fishing there (and not concentrated among a few vessels as 
in the area off Cape Hatteras).
    Regarding the comment that it is unfair to use past interactions 
with

[[Page 71537]]

bluefin as part of the allocation formula because in the past it was 
lawful to interact with bluefin tuna: Pelagic longline regulations were 
designed to limit or reduce retention of bluefin tuna (e.g., target 
catch requirements, weak hook requirements). Therefore, it is 
appropriate that the IBQ Program implemented by this final rule provide 
some benefit in the form of IBQ allocation for vessels that may have 
fished in a manner that reduced interactions with, or avoided bluefin 
tuna, consistent with the regulations.
    NMFS acknowledges that past performance may not be a perfect 
indicator of future performance. One of the objectives of the Cape 
Hatteras Pelagic Longline GRA measure implemented by this final rule is 
to provide incentives for future fishing behavior that will result in 
reduced rates of interactions between pelagic longline gear and 
bluefin. As explained in response to comment # 63 NMFS proposed, but is 
not implementing a measure that would have allowed pelagic longline 
vessels to fish under the General category rules.
    NMFS acknowledges that some vessels could experience economic 
hardship due to not having access to the Cape Hatteras GRA. However the 
data indicate that there will also be substantial reductions in the 
number of bluefin tuna interactions associated with the changes in 
fishing behavior (i.e., 34 percent reduction in bluefin discarded, and 
6 percent reduction in bluefin kept, fishery-wide) as a result of this 
action. The performance metric system is designed to incentivize 
fishermen to avoid bluefin tuna and to comply with observer and 
reporting requirements. Based on the FEIS analysis, 14 vessels of 135 
would not have access to the Cape Hatteras GRA being implemented. NMFS 
determined that, after redistribution of effort, there was not a 
sizable difference in the number of bluefin kept and discarded between 
implementation of the Cape Hatteras GRA without access for any vessels 
(-389 fish per year), and implementation of the original Cape Hatteras 
GRA with Access Based on Performance (-401 fish per year). The total 
economic losses as a result of implementing the proposed Cape Hatteras 
GRA for all vessels, the proposed Cape Hatteras GRA with Access Based 
on Performance, and the Modified Cape Hatteras GRA with Access Based on 
Performance being implemented, after redistribution of effort are -
$893,562; -$301,651; and -$210,956, respectively. NMFS therefore is not 
implementing the GRA without access because the measure would result in 
a comparable reduction in bluefin interactions, but at nearly quadruple 
the cost in estimated economic losses for the pelagic longline fleet. 
The additional incentives that the performance metrics regarding 
compliance with logbook and observer requirements were also determined 
to be important to support the Amendment 7 objective regarding enhanced 
reporting and monitoring.
    Comment 45: Commenters suggested that NMFS should modify the 
proposed Cape Hatteras GRA to include the areas north and east, as well 
as southwest of the proposed Cape Hatteras GRA, to address possible 
redistribution of fishing effort and other areas of moderate to high 
bluefin interactions. A commenter requested consideration of a specific 
extension of the proposed GRA northward to cover a region with moderate 
bluefin interaction in order to prevent increased fishing effort in the 
area as a result of redistribution by fishermen whose performance 
scores are not high enough to fish in the Cape Hatteras GRA. The 
commenter stated that the area could further act as a buffer to protect 
migrating bluefin tuna that aggregate there. NMFS also received a 
comment suggesting a GRA along the continental shelf between the 
Delmarva Peninsula and Georges Banks for the time periods of June 
through July, and November through December to complement the preferred 
alternatives.
    Response: NMFS analyzed the impact of the suggested GRA to the 
north of the proposed Cape Hatteras GRA (assuming redistribution of 
fishing effort). The suggested extension to the north would result in a 
reduction of only 3 bluefin tuna, after redistribution of effort. 
Reductions in other species would be minor. While the suggested GRA 
would be small in both time and space, it is not anticipated to 
contribute much to the goal of reducing bluefin discards. For these 
reasons, NMFS considered but did not further analyze or otherwise 
include this suggested modification as an alternative in the FEIS.
    NMFS also analyzed a GRA along the continental shelf between the 
Delmarva Peninsula and Georges Banks for the time periods of June 
through July and November through December and determined that the 
reduction in effort with redistribution would result in notable 
reduction in bluefin interactions (-48 fish/year kept; -310 fish/year 
discarded). However, the reductions in target catch would be 
substantial (bigeye tuna kept (-977 fish/year); yellowfin tuna kept (-
1,206 fish/year); and the numbers of swordfish kept (-1,118/year)). 
That configuration, combined with the Cape Hatteras GRA, would close 
the majority of the continental shelf to fishermen that do not meet 
performance objectives. These suggested modifications did not achieve 
as much reduction in bluefin interactions compared with the reduction 
in target catch. Therefore, NMFS but did not include the suggested GRAs 
as an alternatives in the FEIS.
    Comment 46: The North Carolina Department of Environment and 
Natural Resources and pelagic longline fishermen commented that NMFS 
should omit the southeast corner of the proposed GRA (preferred 
alternative in the DEIS) due to the prevailing direction of currents in 
this area, and the fact that gear set south or southwest of the Cape 
Hatteras GRA would drift into the GRA.
    Response: NMFS analyzed additional spatial and temporal 
configurations of the Cape Hatteras GRA and determined that little 
conservation benefit could be expected from limiting access to this 
area and that the associated economic costs were not warranted. NMFS 
agrees that the prevailing currents would have effectively closed 
productive fishing grounds southwest of the GRA in federal waters off 
the coast of central and southern North Carolina. As a result of these 
analyses, and considerations, NMFS modified the measure from the 
configuration which was proposed to a gear restricted area during the 
same months (December through April), but with a slightly different 
configuration.
    Comment 47: NMFS should consider the potential negative economic 
impact on fishermen in the area who do not have access to other fishing 
grounds.
    Response: The design of the Cape Hatteras GRA being implemented by 
this final rule was the result of an iterative process. NMFS analyzed 
multiple time periods and geographic areas in order to take into 
consideration both the potential reduction in the number of bluefin 
interactions and the potential reductions in target catch. The analysis 
considered relevant fisheries data, and also oceanographic trends. In 
the DEIS, due to current patterns in the Cape Hatteras area, the zone 
affected by the proposed Cape Hatteras GRA was analyzed beyond 
itsexplicit boundaries. Analysis of a buffer region was needed because 
vessels to the south and west of the GRA would be prevented from 
fishing in these areas because their gear would drift into the GRA 
(having the effect of creating a larger affected geographic area that 
the boundary of the GRA). The DEIS analysis of impacts not only 
considered the reduced fishing effort within the GRA, but also the 
reduced fishing effort in a buffer region to the south and west of the 
area. NMFS included sets made in this buffer region

[[Page 71538]]

into the redistribution analyses. Based on public comment and 
additional analyses, NMFS decided to implement the Modified Cape 
Hatteras GRA, which will minimize the adverse impacts on fishing 
opportunities while still achieving comparable reductions of bluefin 
discards and almost identical conservation and management benefits as 
the original proposal.
    Comment 48: NMFS should implement a GRA and have various 
requirements including mandatory observer coverage, electronic 
monitoring, or the use of weak hooks in order to fish the area. Several 
commenters suggested that NMFS implement the GRA and only allow access 
with 100 percent observer coverage.
    Response: Observer coverage is an important tool in monitoring the 
pelagic longline fishery. Vessels with access to the Cape Hatteras GRA 
will be subject to the same level of observer coverage as the rest of 
the pelagic longline fleet. Electronic monitoring is an important 
aspect of the new IBQ Program, which includes the GRAs. Under Amendment 
7 regulations, any vessel fishing with pelagic longline gear will be 
required to have an operational electronic monitoring system onboard. 
NMFS did not consider an alternative that would implement new weak hook 
requirements for the Atlantic, because we do not presently have data 
indicating that such measures would be effective in meeting the 
objectives of Amendment 7, given size differentials between fish in the 
Gulf of Mexico and the Atlantic and the current state of research on 
the subject.
    Comment 49: NMFS should establish communication protocols designed 
to help fishermen minimize interactions for the regions of concern 
instead of implementing GRAs. One commenter suggested the establishment 
of communication protocols, similar to those designed for the Pelagic 
Longline Take Reduction Plan, be required within the boundaries of the 
Cape Hatteras GRA.
    Response: Communication protocols can be valuable and could assist 
pelagic longline vessels to avoid bluefin tuna. Captains are already 
required to follow a communication protocol for pilot whales in this 
area. NMFS believes such a system would work best for bluefin avoidance 
if it were voluntary, and had the full support of those involved. 
However, in the interest of avoiding bluefin and minimizing the risk of 
shutting down the pelagic longline fishery, NMFS strongly encourages 
vessel captains to communicate the location of bluefin tuna with each 
other.

8. Gulf of Mexico Gear Restricted Area

    Comment 50: A large number of commenters expressed general support 
for a GRA in the Gulf of Mexico, while others stated that NMFS should 
not implement a GOM GRA, due to the severe economic impact it would 
have on the fishery.
    Response: Implementation of a GRA in the Gulf of Mexico supports 
the achievement of the Amendment 7 objectives. A GRA will, in 
conjunction with the other management measures implemented by this 
final rule, result in the reduction of dead discards of bluefin tuna by 
the pelagic longline fishery. Although implementation of a GRA will 
have a negative economic impact on the pelagic longline fishery, the 
preferred alternative will have less of an impact than some of the 
other alternatives considered and analyzed. As described in more detail 
in the responses to comments below, NMFS analyzed a range of 
alternatives, and took into account the importance of fishery resources 
to fishing communities by analyzing economic and social data. Because 
GRAs may result in the reduction and/or redistribution of fishing 
effort by pelagic longline gear, the preferred alternative represents a 
balance between anticipated reductions in dead discards of bluefin, and 
potential negative economic impacts on the pelagic longline fishery. 
Furthermore, the preferred alternative will support the broader 
objectives of both stock rebuilding as well as the continued viability 
of the commercial and recreational fisheries that depend upon bluefin 
tuna.
    Comment 51: Some commenters supported the Amendment 7 alternative 
that would prohibit the use of pelagic longline gear throughout the 
Exclusive Economic Zone (EEZ), year-round, in order to protect spawning 
bluefin, and aggregations of bluefin. Some commenters noted the 
potential for a gulf-wide closure to reduce injuries and deaths of 
protected species such as sea turtles.
    Response: NMFS analyzed the biological and socio-economic impacts 
of this Alternative, and although prohibition of pelagic longline gear 
would eliminate interactions between pelagic longline gear and bluefin 
in the Gulf of Mexico, such a prohibition would not minimize the 
reductions in target catch (e.g., yellowfin tuna, swordfish) in the 
pelagic longline fishery or the and negative economic impacts on the 
fishery, both goals consistent with Amendment objectives. The 
prohibition of pelagic longline gear in the Gulf of Mexico EEZ (year 
round) would be expected to only result in a 14 percent decrease in the 
numbers of bluefin tuna discarded, yet would reduce revenue from 
pelagic longline gear by approximately $7.63 million per year, and 
affect up to 75 vessels.
    NMFS also analyzed the possible effects of the GRA alternatives on 
multiple species, including sea turtles. The FEIS contains the results 
of the analyses that evaluated the GRA alternatives using 
redistribution analyses to ensure that the GRAs would not substantially 
increase interactions with sea turtles if fishermen were to 
redistribute their effort into open waters of the Atlantic Ocean. These 
analyses showed that there would be no net change in the average number 
of annual interactions with leatherback or loggerhead sea turtles for 
the Modified Cape Hatteras GRA, and a reduction of 1 interaction for 
these turtles for the Modified Spring Gulf of Mexico GRA. NMFS expects 
Amendment 7 measures implemented will have a neutral or minor 
beneficial impact on protected species as a result of potential impacts 
on fishing effort, especially fishing effort associated with pelagic 
longline gear.
    The fisheries managed under the 2006 Consolidated Atlantic HMS FMP 
and its amendments have undergone formal and/or informal Section 7 
consultation and collectively address the ongoing Atlantic HMS 
fisheries. On August 15, 2013, NMFS determined that the proposed 
measures in Amendment 7 to the 2006 Consolidated HMS FMP would not 
require reinitiation of formal consultation. The environmental effects 
of the preferred alternatives in this FEIS are substantially the same 
as those analyzed in the DEIS, although some different alternatives are 
now preferred and two of the alternatives have been slightly modified. 
No additional or substantively different effects on listed species are 
expected as a result of these changes. For detailed information on 
reinitiation of formal Section 7 consultation on HMS fisheries, see the 
Classification section.
    Comment 52: Some commenters supported the Gulf of Mexico EEZ GRA, 
which would prohibit the use of pelagic longline gear from March 
through May, while others supported expanding the duration of the Gulf 
of Mexico EEZ GRA to include all the months during which bluefin tuna 
may be present in the Gulf of Mexico, or suggested specific ranges of 
months (e.g., December through June, March through May, March through 
August). A large number of commenters felt that a GRA that encompassed 
the entire Gulf of Mexico EEZ would better account for variability in 
bluefin distribution and areas of spawning

[[Page 71539]]

activity and changing fishing patterns within the fleet. Many 
commenters believed that a larger GRA should be implemented instead of 
any changes to quota allocations, or felt that the implementation of 
such a GRA would eliminate the need for IBQs.
    Response: In selecting the preferred alternative, NMFS analyzed the 
time and areas in which the highest number of bluefin interactions have 
occurred, in order to achieve meaningful reductions in bluefin catch by 
pelagic longline gear, but also to minimize the reductions in target 
catch. A Gulf of Mexico EEZ GRA encompassing the entire Gulf of Mexico 
EEZ for the suggested range of months was not justified. First, there 
exists an historical pattern of relatively high number of interactions 
occurring in particular locations and months. Additionally, a GRA 
encompassing the whole of the Gulf of Mexico EEZ would have included 
locations where there have been relatively few interactions. Similarly, 
inclusion of locations with relatively few historical interactions in 
the GRA would still preclude fishing with pelagic longline gear in such 
locations, increasing the likelihood of additional lost revenue, with 
relatively little reduction in bluefin interactions.
    Inclusion of months during which there have been relatively few 
interactions would preclude fishing opportunity, with relatively little 
reduction in bluefin interactions. In Chapter 3 of the FEIS, Table 3.29 
presents a breakdown of all bluefin tuna interactions reported in the 
HMS Logbook, by month, in the Gulf of Mexico EEZ. Although bluefin tuna 
were noted year round in the Gulf of Mexico, the data indicated 
distinct spatial and temporal patterns. For example, between 2006 and 
2012, there were 13, 3, 13, 16, and 13 total bluefin tuna interactions 
reported in July, August, September, October, and November, 
respectively. In comparison, the months that some comments suggested 
for a GRA (March through May) had 266, 498, and 496 total bluefin 
interactions in March, April, and May, respectively. NMFS does not 
believe that a GRA is warranted at this time during the late summer or 
early fall based on the reported numbers of bluefin tuna that occurred 
in this area. There is variability in bluefin distribution, and fishing 
patterns may change over time. Due to this variability, any specific 
GRA that does not cover the whole EEZ year-round may be less effective, 
or more effective, at reducing dead discards than the historical data 
would indicate. Notwithstanding this variability, a specific GRA 
designed using historic information, and encompassing only a portion of 
the Gulf of Mexico for specific months is likely to reduce dead 
discards over a multi-year time scale. In other words over time there 
are consistent patterns in bluefin distribution that may not be 
exhibited to the same extent each year. Therefore, a GRA is not likely 
to achieve the same level of effectiveness each year, but over time is 
expected to achieve reductions in dead discards similar to that 
indicated by NMFS' analysis.
    In analyzing the Gulf of Mexico closure alternatives in the FEIS, 
NMFS also considered the need to gather scientific data from the Gulf 
of Mexico longline fishery data for the development of effective 
conservation and management measures. A larger GRA for the Gulf of 
Mexico EEZ would severely reduce the collection of important data from 
the pelagic longline fishery and would increase uncertainty in the 
western Atlantic bluefin stock assessment. Gulf of Mexico pelagic 
longline data are critical to the development of catch per unit effort 
(CPUE) information, which is used as the index of abundance for 
spawning bluefin tuna, an important element of the stock assessment for 
western Atlantic bluefin tuna. Such uncertainty would make it more 
difficult to assess the status of stocks, to set the appropriate 
optimum yield and define overfishing levels, and to ensure that optimum 
yield is attained and overfishing levels are not exceeded.
    NMFS conducted a ``power analysis'' to determine the number of 
pelagic longline sets that would be required to maintain the current 
level of precision for the CPUE and found that approximately 60 percent 
of the recent number of pelagic longline sets in the Gulf of Mexico 
would be required. Although NMFS could transition from using this 
fishery dependent data to another data source (i.e., fishery 
independent data), it would require several years before a new fishery 
independent data source could be used for stock assessment purposes and 
an abrupt cessation of the current CPUE data would mean a break in the 
time series and increase uncertainty in stock assessment results. NMFS 
will continue to explore alternative methods for the collection of 
independent data. In contrast to a GRA applicable to the full EEZ, a 
GRA in the Gulf of Mexico with a smaller area and short duration will 
still be effective in reducing bycatch to the extent practicable and 
protecting spawning-sized bluefin while permitting allowable fishing 
and the collection of data needed for index of abundance. The size and 
duration of the GOM GRA being implemented by this final rule, will not 
preclude the collection of the necessary data in support of the stock 
assessments, and will reduce bycatch during the spawning season, as 
well as augment the IBQ Program in ensuring that catch does not exceed 
the quota.
    With respect to the relationship between the size of a GRA and 
other Amendment 7 alternatives (i.e., IBQs and quota allocation), the 
use of multiple management tools will reduce negative economic impacts 
on the pelagic longline fishery, as well as achieve the diverse 
Amendment 7 objectives in a balanced manner.
    Comment 53: Several commenters expressed support for the Small Gulf 
of Mexico GRA in the DEIS, which was proposed, but is not being 
implemented. A number of comments indicated the Small Gulf of Mexico 
GRA was the minimum acceptable size for a GRA in the Gulf of Mexico, 
while other commenters did not support the proposed Small Gulf of 
Mexico GRA, feeling that NMFS ought to do more to protect bluefin in 
the Gulf of Mexico. A large number of commenters requested that the 
agency re-evaluate the GRA and identify other alternatives. One 
commenter felt the DEIS lacked compelling justification for choosing an 
alternative that does not protect all spawners and increases fishing 
pressure in critical areas of the Gulf of Mexico. Other commenters felt 
that the boundaries encompassed by the Small Gulf of Mexico GRA did not 
reflect the best scientific knowledge available. Specific suggestions 
included modification of the duration (change, shorten, lengthen, or 
include specific months) to cover peak spawning periods or provide a 
buffer due to variability in the timing and area of bluefin spawning 
activity and longline fishing patterns from year to year. Some 
commenters believed the months of the GRA should cover the full bluefin 
spawning period. Other commenters suggested that the GRA be extended to 
the east or north to encompassed additional known spawning areas, or 
extended south to cover areas where large numbers of interactions have 
occurred.
    Response: As stated in the response to comments 50, 51, and 52, 
NMFS analyzed a range of GRA alternatives that encompass a range of 
biological and socio-economic impacts, and would achieve various 
amounts of reductions in bluefin interactions and result in different 
reductions in revenue. As explained above in the response to comments 
51 and 52, a complete Gulf of Mexico EEZ closure for a full year or 
portion of the year is not warranted

[[Page 71540]]

because a smaller GRA is sufficient to achieve the Amendment 7 
objectives and to minimize bycatch and bycatch mortality to the extent 
practicable. Based on public comment, NMFS analyzed the impacts of 
additional areas and times in the Gulf of Mexico, not analyzed in the 
DEIS, and included 2012 data. As a result of these additional analysis, 
and careful consideration of both the biological and socio-economic 
impacts, NMFS is implementing the Spring Modified Gulf of Mexico 
Pelagic Longline GRAs.
    The Spring Modified Gulf of Mexico Pelagic Longline GRAs include 
most of the geographic area of the GRA that was originally proposed, 
but are larger, extending further to the east, and are slightly reduced 
in size on the western and northern borders. Additionally, the Spring 
Modified Gulf of Mexico Pelagic Longline GRAs include a second area 
that is adjacent to the southern border of the Desoto Canyon Closed 
Area's northwestern `block.'
    The Spring Modified Gulf of Mexico Pelagic Longline GRAs encompass 
additional areas of historic bluefin interaction in the eastern-central 
Gulf of Mexico, and address a recent shift in pelagic longline fishing 
activity eastward. Between 2009 and 2012, there was a 10 to 20 percent 
shift from the Mid-Gulf Louisiana region to the eastern Gulf of Mexico 
region. The area defined by the Spring Modified Gulf of Mexico Pelagic 
Longline GRAs includes a larger portion of the spawning areas 
documented in the peer-reviewed literature at this time, but does not 
include all of the known bluefin spawning areas in the GOM for reasons 
previously explained. The Spring Modified Gulf of Mexico Pelagic 
Longline GRAs will occur during the months of April and May, the same 
time period as proposed for the original Small Gulf of Mexico GRA.
    NMFS previously regulated large portions of the eastern Gulf of 
Mexico through implementation of the DeSoto Canyon closed area, 
Madison-Swanson and Steamboat Lumps Sites, and the Edges closure. The 
pelagic longline fleet fishes the continental shelf along the west 
coast of Florida between the southern DeSoto Canyon box and the Florida 
Keys. However, bluefin interactions in this area are relatively few 
compared to the areas evaluated in the FEIS.
    Comment 54: One commenter noted that the size of the fishable area 
in the Gulf of Mexico is already small, given the constraints on the 
locations where they can fish, including existing pelagic longline 
closed areas, as well as the areas that must be avoided for other 
reasons (e.g., activity range of seismographic vessels, which can 
operate for up to six months, and oils rigs).
    Response: NMFS acknowledges that the Spring Modified Gulf of Mexico 
Pelagic Longline GRAs being implemented by this final rule will further 
reduce the amount of fishable areas in the Gulf of Mexico available for 
the use of pelagic longline gear, and that vessels choosing to fish in 
the Gulf of Mexico with pelagic longline gear will need to work around 
other industrial users of Gulf of Mexico resources. NMFS selected the 
boundaries of the Spring Modified Gulf of Mexico GRAs with careful 
consideration of the associated benefits and costs. NMFS optimized the 
size of the GRAs being implemented to achieve a meaningful reduction in 
dead discards, and still leave fishing grounds open for the pelagic 
longline fleet. The Cumulative Impacts Analysis in the FEIS (Chapter 6) 
considers the impacts of the preferred alternatives in the broader 
context of other historical and current activities.
    Comment 55: NMFS should consider the impact on the yellowfin tuna 
and swordfish fisheries, which are active in the Gulf of Mexico and in 
the areas covered by the GRAs. Specifically, the commenter questioned 
whether the Gulf of Mexico pelagic longline fleet would be able to 
remain active.
    Response: NMFS carefully considered the impact of the Spring 
Modified Gulf of Mexico GRAs on yellowfin and swordfish fisheries, both 
of which are robust and healthy fisheries in the Gulf of Mexico. The 
Spring Modified Gulf of Mexico GRAs achieve a balance between 
conservation objectives and providing continuing opportunity for the 
swordfish and yellowfin tuna fisheries. The primary conservation 
objective of the GRAs is to reduce bluefin interactions, and reduce 
bycatch and bycatch mortality to the extent practicable. NMFS compared 
among the alternatives the amount of `savings' of bluefin tuna and the 
reduction in target catch as part of its analysis of the GRAs. Under 
the Spring Modified Gulf of Mexico GRA being implemented, the annual 
reductions in revenue associated with the reduced catches of swordfish 
and yellowfin tuna are estimated at $41,504 and $207,110, respectively. 
The annual reduction in total revenue is estimated at $1,793,922. An 
example of how the data was compared and alternatives evaluated 
follows: Comparing the Spring Modified Gulf of Mexico GRA with the 
alternative that would restrict the full EEZ for the months of March 
through May, the reduction in the weight of bluefin catch would be a 
little more than twice as much under the EEZ GRA (44.2 mt versus 19.2 
mt under the Spring Modified Gulf of Mexico GRA), but the reduction in 
total revenue associated with the EEZ GRA would be more than six times 
larger than the reduction in total revenue associated with the Spring 
Modified Gulf of Mexico GRA ($1,793,922 versus $281,614 under the 
Preferred). In other words, compared to the Spring Modified Gulf of 
Mexico GRA, the amount of additional costs that would be associated 
with the EEZ GRA would be disproportionately greater than the 
additional conservation benefits associated with the EEZ GRA. The 
Amendment 7 measures are not designed to target a particular amount of 
reduction in dead discards, but rather to reduce dead discards in a 
meaningful way, provide strong incentives to avoid and reduce bycatch, 
and take into account the potential impacts on the pelagic longline 
fishery. The combined effect of the Modified Spring Gulf of Mexico 
Pelagic Longline GRA and the Modified Cape Hatteras Pelagic Longline 
GRA will reduce the number of bluefin discarded by 40 percent, and the 
number of bluefin kept by 10 percent (fishery-wide).
    Comment 56: One commenter asked why NMFS did not propose 
conditional access to the Gulf of Mexico GRAs, based on performance 
metrics, in contrast to the Cape Hatteras GRA, for which access was 
proposed. The commenter suggested that performance metrics should be 
applied to all GRAs.
    Response: NMFS did not propose and is not implementing conditional 
access to the Gulf of Mexico GRAs (based on performance metrics) in 
part because they would not be as effective in reducing discards of 
bluefin tuna in the GOM as they would be in the Atlantic. The fact that 
a relatively small number of vessels are responsible for the majority 
of bluefin interactions in the Atlantic makes access to the Modified 
Cape Hatteras GRA based on performance metrics effective, in order to 
reduce dead discards, provide incentives for modifying fishing 
behavior, and acknowledge past performance. In contrast, the pattern of 
interactions with bluefin tuna in the GOM is different from that in the 
Atlantic, with the interactions more evenly distributed among all 
vessels (i.e., more vessels responsible for the interactions). NMFS 
evaluated the Spring Modified Gulf of Mexico GRA using performance 
metrics, and applying them, only three vessels out of the 61 that 
fished in the Spring Modified Gulf of Mexico GRAs would not have had 
access to the GRAs.

[[Page 71541]]

Therefore, the savings from implementing the performance metrics would 
be very small, and the resulting ecological impacts would have been 
similar to not implementing a GRA at all.
    Comment 57: Some commenters felt that NMFS should delineate a GRA 
using the same boundaries as the bluefin Habitat Area of Particular 
Concern (HAPC).
    Response: NMFS determined that the reductions in bluefin tuna 
interactions resulting from a Gulf of Mexico GRA that encompasses the 
boundaries of the bluefin HAPC would be very similar to the savings 
incurred from a GRA drawn encompassing the boundaries of the Gulf of 
Mexico EEZ. NMFS therefore did not further evaluate a GRA that was 
designed to encompass the boundaries of the HAPC or develop an 
alternative around this proposed boundary.
    Comment 58: A commenter indicated that he could support a Gulf of 
Mexico GRA alternative if the pelagic longline fleet is provided 
flexibility through some of the alternatives proposed such as access to 
current closed areas, and ability to fish under General Category rules.
    Response: As described under the Response to Comments #63, and #64, 
access to certain closed areas, and the ability to fish under General 
Category rules in certain closed area were proposed but are not being 
finalized in this final rule. The measures implemented by Amendment 7 
provide flexibility and balance the Amendment 7 objectives to reduce 
dead discards, yet also provide fishing opportunity.
    Comment 59: The Gulf of Mexico Fishery Management Council commented 
that NMFS should consider potential impacts on vessels using bottom 
longline gear. They were concerned about the synergistic effects of the 
pelagic longline and bottom longline regulations on vessels.
    Response: The Modified Spring Gulf of Mexico GRAs are designed for 
the pelagic longline fishery only. Vessels that exclusively use bottom 
longline gear would not be affected by the GRAs. Vessels that use both 
bottom longline gear and pelagic longline gear during the year would be 
impacted, and would likely modify their fishing behavior or business 
plan. Bottom longline gear is currently subject to regulations 
including time and area restrictions, and is not likely to capture 
bluefin tuna due its deployment near the bottom of the ocean.
    Comment 60: NMFS should compensate vessels for the time period the 
Gulf of Mexico GRAs are in place.
    Response: NMFS' authority to assist fishers in this way requires a 
determination of a commercial fishery failure due to a fishery resource 
disaster under section 312(a) of the MSA or section 308(b) of the 
Interjurisdictional Fisheries Act, followed by an appropriation from 
Congress. Neither of these have occurred.
    Comment 61: NMFS should not distinguish between bluefin tuna in the 
Gulf of Mexico and Atlantic as they are from the same breeding stock.
    Response: For the purposes of Amendment 7, NMFS differentiates 
between bluefin tuna in the Gulf of Mexico and bluefin tuna in the 
Atlantic for the implementation of certain management measures for a 
number of reasons. As noted above, the distribution of interactions 
across vessels is different between the Gulf of Mexico and the 
Atlantic. Gulf of Mexico bluefin tuna that interact with pelagic 
longline gear are often heavier and older than tuna that interact with 
pelagic longline gear in the Atlantic, and are found in spawning 
condition during certain months of the year. The pattern of discarding 
in the Gulf of Mexico is also very different from the discard pattern 
documented in the Atlantic (i.e., larger fish discarded in the Gulf of 
Mexico). NMFS does not make such a distinction between Gulf of Mexico 
and Atlantic bluefin in the assessment of the bluefin stock. Although 
Gulf of Mexico bluefin often migrate up the east coast to feeding 
grounds in the northwest Atlantic Ocean, data suggest that some 
proportion of fish in the Atlantic are individuals from the eastern 
Atlantic and Mediterranean stock, whereas bluefin in the Gulf of Mexico 
are predominantly from the western Atlantic stock.
    Comment 62: NMFS should examine observer data in addition to 
logbook data to estimate bluefin tuna savings; the estimate of savings 
in 2010 and 2011 is low because fishing effort was low in those years.
    Response: NMFS acknowledges that estimates of savings might be low 
in 2010 and 2011 as a result of depressed effort due to the effects of 
the Deepwater Horizon oil spill. However, estimated savings are 
presented as an average from a 7-year period. Interannual variability 
is therefore incorporated into the estimation of ecological impacts of 
different GRA alternatives. NMFS developed GRA alternatives from HMS 
Logbook data because every fisherman must submit logbooks detailing 
activity and interactions with all fish kept, discarded alive, and 
discarded dead. While extremely useful in estimating dead discards, the 
observer program is not a complete census survey of the fishery, and 
the extent of observer coverage is not necessarily useful in assessing 
ecological or economic effects of GRAs. Furthermore, there is a 
percentage of vessels that have not been observed and NMFS determined 
that some of these vessels contributed sizable numbers of bluefin 
interactions in the Cape Hatteras GRA. NMFS, therefore, decided to base 
the estimation of impacts on HMS logbook data.

9. Pelagic Longline Vessels Fishing Under General Category Rules

    Comment 63: Some commenters supported the proposed measure to allow 
vessels fishing with pelagic longline gear that are not authorized 
conditional access to the Cape Hatteras GRA, to fish under General 
category rules. Vessel owners wanted to have this type of fishing 
opportunity as mitigation for the lost opportunity of fishing with 
pelagic longline gear in the Cape Hatteras GRA, from December through 
April. Some commenters did not support the proposed opportunity for 
such vessels to fish under the General category rules for various 
reasons. Some asserted that the activity would be a ``dangerous 
precedent,'' because limited access vessels would be allowed to fish 
under the rules applicable to an open access category, but General 
category vessels would not be allowed to fish as a pelagic longline 
vessel. Others were concerned about the expansion of a targeted bluefin 
fishery in the Cape Hatteras GRA, an area that already has large 
numbers of interactions with bluefin. A commenter found it ironic that 
vessels not allowed to fish with pelagic longline gear in the Cape 
Hatteras GRA (proposed in order to reduce bluefin interactions with 
pelagic longline gear) due to their low performance criteria score 
would be provided an opportunity to target bluefin tuna. Some noted 
concern about the potential impacts on the rate of harvest of the 
General category quota, which is limited, and the indirect impacts on 
General category vessels. Others noted that the replacement of pelagic 
longline gear with handgear (targeting bluefin) is not economically 
viable due to the size of the pelagic longline vessels and the 
associated trip expenses. A commenter stated that the proposed measure 
would facilitate trans-shipment of bluefin from Longline category to 
General category vessels. A commenter suggested that all pelagic 
longline vessels should be able to fish under the General category 
rules, and not only those affected by the GRA.
    Response: Based upon public comment and further consideration,

[[Page 71542]]

NMFS is not implementing the management measure that would have allowed 
vessels fishing with pelagic longline gear that are not authorized 
conditional access to the Cape Hatteras GRA to fish under General 
category rules. While this measure would have provided additional 
fishing opportunities to pelagic longline vessels without access to the 
Cape Hatteras GRA, the differences in fishing costs and productivity 
between pelagic longline gear and handgear are great enough that 
handgear fishing for bluefin tuna would not be economically viable for 
a pelagic longline vessel. Given the unlikely -economic benefits as 
well as public perceptions of unfairness, the potential benefits of 
allowing vessels to fish under the General category rules do not 
outweigh the potential costs and risks associated with this activity.

10. Pelagic Longline Limited Conditional Access to Closed Areas

    Comment 64: NMFS received a large number of comments that did not 
support the proposed limited conditional access to closed areas for 
vessels using pelagic longline gear, for a variety of reasons. 
Commenters, including the Florida Fish and Wildlife Conservation 
Commission, were foremost concerned about potential negative biological 
impacts on swordfish, billfish, and other species, as well as the 
indirect negative socio-economic impacts on the recreational fishing 
community if there were negative biological impacts. Specifically, 
commenters cited the benefits of the DeSoto Canyon and East Florida 
Coast closed areas contributing to the rebuilding of the swordfish 
stock, and the stabilization of the blue and white marlin stocks. 
Commenters stated that the biological analysis of the alternative was 
inadequate, and one commenter was concerned about the impacts on dusky 
sharks. Some commenters supported access, noting the importance of such 
access as a means to provide flexibility to pelagic longline vessels in 
the context of the IBQ Program restrictions, while others suggested 
modifications to the alternative such as allowing the use of electronic 
monitoring instead of human observers.
    Response: Based upon public comment and further consideration of 
potential administrative costs, NMFS is not implementing this 
management measure. The potential benefits of allowing pelagic longline 
vessels limited conditional access to the closed areas would not 
outweigh the potential costs and risks associated with this activity. 
The objectives of the proposed measure were to maintain the relevant 
conservation aspects of the closure, balance the objectives of the 
closures, provide commercial data from within the closures, and provide 
additional fishing opportunities for permitted longline vessels 
(mitigating the potential negative economic impacts of Amendment 7). 
The East Florida Coast, Charleston Bump, and DeSoto Canyon Closed Area 
were implemented as part of a bycatch reduction strategy, based on 
three objectives: (1) Maximize the reduction in incidental catch of 
billfish and of swordfish less than 33 lb dressed weight; (2) minimize 
the reduction in the target catch of larger swordfish and other 
marketable species; and (3) ensure that the incidental catch of other 
species (e.g., bluefin, marine mammals, and turtles) either remains 
unchanged or is reduced. Upon implementation, NMFS recognized that all 
three objectives might not be met to the maximum extent and that 
conflicting outcomes would require some balancing of the objectives. 
There are data that supports the assertion that the closed areas have 
contributed to the achievement of their objectives, in concert with 
other management measures. NMFS provides an annual review of the 
potential effectiveness of the current suite of management measures, 
including closed areas, at reducing bycatch in its annual SAFE report 
for HMS. Although this review does not isolate and quantify the 
effectiveness of closed areas as a separate management tool, the 
estimated reductions in discards of swordfish, blue marlin, white 
marlin, sailfish, and spearfish, as a result of all management 
measures, have remained consistently high (-50 to -70 percent), 
suggesting that the current suite of international and domestic 
management measures have played a significant role in allowing the 
United States to reduce its bycatch interactions. Given the likely 
benefits of the closed areas, the difficulty in determining the precise 
magnitude of the benefits of the closed areas in the context of other 
management measures, as well as the difficulty predicting the potential 
impacts that access to closed areas would have, NMFS believes that 
there is uncertainty whether in fact the first objective of the 
alternative (maintain relevant conservation aspects of the closure) 
would be met. The access to closed areas alternative did not include 
defined bycatch limits, but would have relied upon the assumption that 
low levels of fishing effort is sufficient to prevent excessive 
bycatch. Furthermore, there would be administrative costs associated 
with the access program. Therefore, the benefits associated with 
providing additional fishing opportunities (by providing access) would 
not outweigh the costs in terms of the risk of undermining the 
conservation benefits of the closed areas. With respect to providing 
commercial data from within the closures, as stated previously, NMFS 
may obtain data from within the closures through the use of exempted 
fishing permits.

11. Pelagic and Bottom Longline Transiting Closed Areas

    Comment 65: The North Carolina Department of Environment and 
Natural Resources supported the preferred alternative (Alternative E8) 
to allow transiting of closed areas by vessels possessing bottom or 
pelagic longline gear.
    Response: Allowing HMS vessels that possess bottom or pelagic 
longline gear on board to transit closed areas provided they remove and 
stow the gangions, hooks (unbaited), and buoys from the mainline and 
drum would reduce potential economic costs associated with indirect 
routes of travel (more time at sea and more fuel, etc.) as well as 
reduce potential safety-at-sea issues.

12. Gear-Based Measures

    Comment 66: Authorizing buoy gear to be used by Swordfish 
Incidental permit holders to catch swordfish (Alternative B2b) and 
authorizing the harvest of bigeye, albacore, yellowfin and skipjack 
tunas (`BAYS') with buoy gear by Swordfish Directed and Incidental 
permit holders (Alternative B2c) would reduce dead discards in a direct 
manner and should be supported.
    Response: Buoy gear used in and near the Florida Straits has been 
shown to be efficient at catching swordfish with a relatively low 
bycatch rate. However, due to a lack of data, it is unknown what the 
catch and bycatch of buoy gear would be when used to target swordfish 
at night in other areas of the Atlantic, Gulf of Mexico, U.S. 
Caribbean, and high seas or to target BAYS tunas in these areas during 
daylight hours. This lack of information makes assessing an expansion 
in the use of buoy gear for swordfish or tunas difficult, especially 
considering the potential to interact with adult bluefin tuna in the 
Gulf of Mexico, other HMS such as billfishes, or protected species in 
areas such as off the Outer Banks of North Carolina (as an example). 
NMFS is not implementing alternatives B2b or B2c because of the lack of 
available information needed to assess the ecological impacts of 
expanded buoy gear use when used to

[[Page 71543]]

target swordfish or BAYS tunas. NMFS will continue to assess additional 
information as it becomes available and may re-evaluate buoy gear 
fishery regulations in the future.
    Comment 67: Pelagic longline fishermen should use more selective 
fishing gears such as greenstick gear and buoy gear and part of the 
Deepwater Horizon oil spill restoration funds should be used to help 
pelagic longline fishermen in the Gulf of Mexico make this transition. 
No financial hardship for fishing gear transition conducted as part of 
oil spill restoration efforts should fall upon affected fishers.
    Response: This final rule does not implement a management measure 
that would require vessels to transition from pelagic longline to 
greenstick gear or buoy gear. However, under specific fishing permits, 
greenstick gear is currently authorized to fish for Atlantic tunas and 
buoy gear is authorized to fish for swordfish. Fishermen may utilize 
any legal fishing gear as authorized under the valid permits that are 
on their vessel when used in accordance with applicable regulations. 
Fishermen may change fishing gears in accordance with applicable 
regulations. ``Prohibition of the Use of Pelagic Longline Gear in the 
HMS Fishery'' is an alternative in the FEIS characterized as 
``Considered but Not Analyzed Further'', because it would not provide a 
balanced approach to achieving the Amendment 7 objectives or be 
consistent with the provisions of the MSA. Amendment 7 management 
measures provide incentives for vessels to transition from pelagic 
longline gear to greenstick or buoy gear, but do not mandate such a 
transition.
    The Oil Pollution Act of 1990 authorizes certain federal agencies, 
states, and Native American tribes, collectively known as the Natural 
Resource Trustees (trustees), to evaluate the impacts of oil spills on 
natural resources and recreation, and to plan restoration projects to 
fully offset those impacts. In the case of the Deepwater Horizon oil 
spill, NOAA is one of the nine trustees responsible for jointly 
conducting this process, which is known as a Natural Resource Damage 
Assessment (NRDA). Throughout the Deepwater Horizon oil spill NRDA 
process, the trustees have conducted multiple public comment periods 
and dozens of public meetings throughout the Gulf Coast states intended 
to gather input on the public's preferred approaches to natural 
resource restoration. The most recent public comment period related to 
the Deepwater Horizon oil spill restoration planning concluded on 
February 19, 2014. Throughout the NRDA process, the trustees have 
invited comments on broad types of restoration projects, as well as 
specific projects. In addition to accepting verbal comments at public 
meetings, the trustees have accepted comments and ideas by U.S. Mail, 
email to nrda.projects@noaa.gov, and via the Internet via 
www.gulfspillrestoration.noaa.gov. As part of their ongoing commitment 
to maximum transparency, the NRDA trustees have posted input gathered 
during these public comment periods online at 
http:[sol][sol]www.gulfspillrestoration.noaa.gov/restoration/give-us-
your-ideas/view-submitted-projects/. The NRDA trustees also continue to 
accept project ideas from the public by mail and via 
http:[sol][sol]www.gulfspillrestoration.noaa.gov/restoration/give-us-
your-ideas/suggest-a-restoration-project/. During the NRDA process, the 
trustees have received suggestions that restoration project funds help 
pelagic longline fishermen transition to greenstick and buoy gear.

13. General Comments About Individual Bluefin Quotas

    Comment 68: Commenters supported implementation of the IBQ system 
in order to hold vessels accountable and provide incentives to reduce 
discards. Commenters noted that NMFS should provide some flexibility in 
the IBQ system, particularly in the short-term, to ensure that vessels, 
and especially small vessels, are able to adapt to the new restrictions 
and the overall program is successful. Commenters urged NMFS to 
continue to support the pelagic longline swordfish fishery, which is 
important for multiple reasons.
    Response: Implementation of the IBQ system will increase the 
responsibility and accountability of individual vessels, and the 
pelagic longline fishery as a whole, for the catch of bluefin tuna. As 
explained in detail in the responses to more specific comments below, 
the IBQ system implemented by this final rule is designed to provide a 
reasonable and effective means of reducing dead discards, increasing 
accountability, and maintaining a viable pelagic longline fishery. The 
management measures are intended to provide flexibility at the level of 
the individual vessel, and in the quota system as a whole, so that the 
fishery can operate under the challenges of a substantially new 
regulatory structure. Furthermore, the fishery must be able to adapt on 
a continuing basis to the variability of highly migratory species, and 
changing ecological conditions.
    Individual pelagic longline vessels have the flexibility to change 
their fishing practices through modification of fishing behavior 
(including time, location and methods of fishing, and the use of non-
longline gear); increasing communication within the fishery to 
facilitate bluefin avoidance; and leasing of individual bluefin quota. 
Under Amendment 7, NMFS may also provide additional flexibility by 
allocating additional quota to the Longline category, as described in 
the response to Comments 18 and 19.
    Comment 69: Some commenters stated that NMFS should consider some 
of the broad questions such as what will happen when the bluefin stock 
grows, which may lead to more dead discards; what about unintended 
consequences of the IBQ system such as creating a directed fishery; and 
what will happen to a vessel if they have an atypically large BFT catch 
event (also known as a ``disaster set'')?
    Response: As the bluefin stock size continues to grow, the total 
number of interactions between the pelagic longline fleet and bluefin 
tuna may increase. However, the relative amount of dead discards by 
pelagic longline vessels (e.g., percentage of total catch) may be a 
better way to evaluate a trend in the amount of dead discards rather 
than the absolute number. A second important metric of success of the 
IBQ Program will be whether the catch of bluefin by the Longline 
category exceeds the Longline category quota. Amendment 7 management 
measures are expected to reduce the percentage of bluefin catch that is 
comprised of discards (which from 2006 to 2012, ranged from 61 to 75 
percent of the Longline bluefin catch), and prevent the catch of 
bluefin by pelagic longline vessels from exceeding the Longline 
category quota.
    The IBQ Program will not create a directed fishery for bluefin by 
the pelagic longline fleet. Although pelagic longline vessels will be 
allocated bluefin quota and be able to derive revenue from the sale of 
legal-sized bluefin tuna, the quota share of bluefin tuna for each 
vessel is a relatively small percentage of the Longline category quota. 
Based on the size of recent Longline category quotas, individual 
vessels will be allocated the equivalent of between 2 and 13 bluefin 
tuna per year (depending upon the specific quota share percentage and 
whether the bluefin is a Gulf of Mexico or Atlantic bluefin). Due to 
the relatively small bluefin quota allocation per vessel, the 
requirement to utilize quota to account for both dead discards and 
landings, the requirement to have a minimum amount of quota to depart 
on a fishing trip using pelagic longline gear, and the cost

[[Page 71544]]

associated with leasing additional quota, there will be strong economic 
disincentives to target bluefin.
    If a vessel catches an atypically large number of bluefin tuna 
(i.e., a ``disaster set''), Amendment 7 measures will allow the vessel 
to retain and sell all legal-sized bluefin, but prohibit the vessel 
from departing on a subsequent trip using pelagic longline gear until 
all the bluefin has been accounted for by leasing additional quota from 
another permitted vessel owner with quota allocation. This restriction 
will create a strong economic incentive to avoid bluefin tuna in order 
to not exceed individual bluefin quota. Furthermore, if the vessel in 
such circumstances holds quota share and at the end of the year would 
otherwise be eligible to receive quota share for the subsequent fishing 
year, the quota debt would be settled by deducting quota from the 
subsequent year's quota allocation. The quota debt would persist from 
one year to the next until settled.
    Under Amendment 7 measures, NMFS may also consider transferring 
quota from the Reserve category to the Longline category, to make quota 
available for the fishery as a whole. With the exception of quota in 
support of research (e.g., an Exempted Fishing Permit), NMFS may 
allocate additional quota to the Longline category as a whole via a 
disbursement of quota to eligible vessels via the IBQ Program for the 
purpose of accounting for bluefin catch. Under Amendment 7, NMFS' 
review of the IBQ Program after 3 years of operation will include 
anevaluation of the question of whether the IBQ system adequately 
addresses large catch events.
    Comment 70: Some commenters had concerns about the legality of the 
IBQ Program and argued that NMFS should consider the legality of 
``diminishing a vessel's opportunity to catch its quota.'' Commenters 
stated that NMFS should not give a public resource to individuals for 
their financial benefit, and that the pelagic longline fishery should 
not profit from bluefin, but proceeds should be used for other programs 
and research.
    Response: Allocation of fishery resources to individual entities 
under a catch share program is legal under the Magnuson-Stevens Act. 
The IBQ Program includes an allocated privilege of catching a specified 
portion of the total annual bluefin quota in the form of quota shares. 
IBQ shares are not property, but are a privilege to an amount of fish 
in a given year that can be renewed or revoked. Although pelagic 
longline vessel owners/operators may derive revenue from the sale of 
bluefin, bluefin is not expected to become a large proportion of their 
total revenue due to the low amount of bluefin quota and the other 
elements of the IBQ Program. Measures throughout the Amendment were 
specifically implemented to ensure that the pelagic longline BFT catch 
remains an incidental fishery, not a directed fishery. Although the 
management measures do not require a portion of the revenue from the 
sale of bluefin by Longline category vessels to fund research, NMFS may 
utilize bluefin quota from the Reserve category in support of relevant 
research.
    Comment 71: A commenter stated that, in the Gulf of Mexico, NMFS 
should limit catch using gear restrictions and the use of alternative 
gears instead of IBQs. Some commenters noted that NMFS should separate 
Gulf of Mexico quota from Atlantic quota.
    Response: A discussion of alternative gears is provided in the 
response to Comments 66 and 67. Alternative gears alone are unlikely to 
provide the same benefits of the IBQ Program, which will limit total 
catch and provide accountability at the level of individual vessels. 
The IBQ management measures include a provision that designates quota 
share as either Gulf of Mexico or Atlantic, and prohibits the use of 
Atlantic quota in the Gulf of Mexico to prevent potential increases in 
the relative amount of bluefin caught in the Gulf of Mexico.
    Comment 72: Several commenters had concerns or made suggestions 
regarding some of the specific aspects of the design of the IBQ Program 
that are not among the principal design elements. These comments were 
as follows: NMFS should implement strict enforcement and fines 
associated with the IBQ system; the annual distribution of quota should 
take place in time for the January 1 start of the fishing year; NMFS 
should not allow quota to carryforward from year to year; NMFS should 
not allow vessels to land and sell bluefin without sufficient quota; 
money from the sale of bluefin should be put in escrow until quota is 
purchased to account for all catch, and; NMFS should not implement the 
IBQ system because it is too complex.
    Response: Enforcement is an important aspect of ensuring the 
effectiveness of any regulatory program. New management tools such as 
the preferred electronic monitoring will augment NMFS' ability to 
effectively enforce the regulations.
    On an annual basis, IBQ allocation will be distributed to eligible 
permit holders in time for vessels to begin fishing on January 1. 
Adjustments to the IBQ allocations may occur, but are not limited to 
changes in ICCAT recommendations, inseason actions, or NMFS' annual 
adjustment authority.
    Under this final rule, if an eligible permit holder has been 
awarded IBQ allocation and does not fully utilize that IBQ allocation 
(i.e., account for bluefin caught, or leases the IBQ allocation to 
another eligible participant) during the year, and has a balance of 
quota at the end of the year, the quota would not carry forward into 
the subsequent year as IBQ in association with a particular permit. 
However, based on the unused IBQ allocation associated with individual 
vessels, NMFS would calculate the total amount of unused IBQ allocation 
for the Longline category as a whole, and carry that quota forward (or 
a portion of that quota) as allowed under ICCAT into the subsequent 
fishing year. U.S. bluefin quota that is allowed to be carried forward 
from one year to the next will be placed in the Reserve category and 
may be reallocated to any/all domestic quota categories.
    Under Amendment 7, pelagic longline vessel operators will be able 
to land and sell any legal-sized retained bluefin, in order to maintain 
full accountability, retain flexibility to accommodate variable bluefin 
catches, and to provide incentives to retain rather than discard fish. 
Although a vessel operator may land and sell bluefin in excess of their 
quota, they may not depart on a subsequent trip using pelagic longline 
gear until the fish have been fully accounted for with quota 
allocation. The revenue derived from the sale of the bluefin will 
facilitate the ability of a vessel owner to lease additional quota. If, 
at the end of the year, they have not paid the `quota debt' with 
additional quota (obtained through leasing), the balance of quota owed 
will be `paid' for from the subsequent year's allocation or the vessel 
will be prohibited from fishing with pelagic longline gear. The vessel 
owner is fully accountable.
    In contrast, a system in which a vessel operator must place the 
revenue from the sale of a bluefin in escrow until they account for the 
fish with quota (as suggested by a commenter) is a more complex system 
that would provide a stronger incentive to discard bluefin, impose 
additional administrative burdens, and would not provide the 
flexibility a vessel operator may need. If while still at sea the 
vessel operator catches more bluefin than they have quota,, there would 
be more incentive to discard the fish because the vessel owner would 
face the uncertainty of whether they would be able to lease quota (and 
at what price) and the operator would be uncertain whether or not any 
revenue could be derived from

[[Page 71545]]

the sale of the bluefin. If the revenue were to be placed in escrow, 
the vessel operator may have insufficient revenue to lease additional 
quota allocation, and therefore the system itself would be an 
impediment to the operation of a leasing market. Additionally, there 
would be questions associated with an escrow requirement such as: If 
the vessel operator is unable to lease additional quota, and forfeited 
the revenue, would the vessel still be responsible for accounting for 
the bluefin, (i.e., would the `quota debt' remain with the vessel into 
the following year), even though the vessel owner never obtained any 
revenue from the fish?
    Although the IBQ Program will result in a more complex management 
system than currently exists, NMFS has minimized complexity in the 
design of the preferred management measures (including the IBQ 
Program), and has noted examples in the Response to Comments. While 
this is first catch share program for Atlantic HMS fisheries, the 
elements and approach of the Amendment 7 IBQ Program are similar to 
that of the many successful catch share programs currently in operation 
in the United States. NMFS will educate the public regarding the 
program, and provide the public with ongoing access to the information 
to facilitate the smooth operation of the preferred IBQ Program and 
enhance transparency.
    Comment 73: Commenters noted that NMFS did not pr