[Federal Register Volume 68, Number 104 (Friday, May 30, 2003)]
[Rules and Regulations]
[Pages 32414-32417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13556]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 001113318-3128-03; I.D. 110200D]
RIN 0648-AO75


Atlantic Highly Migratory Species; Incidental Catch Requirements 
of Bluefin Tuna

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

ACTION: Final rule.

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SUMMARY: NMFS amends regulations under the framework provisions of the 
Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS 
FMP) governing the Atlantic bluefin tuna (BFT) fishery as they affect 
landing of BFT in the Atlantic pelagic longline fishery. The intent of 
this action is to minimize dead discards of BFT and improve management 
of the Atlantic pelagic longline fishery, while complying with the 
National Standards of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) and allowing harvest consistent 
with recommendations of the International Commission for the 
Conservation of Atlantic Tunas (ICCAT).

DATES: Effective June 30, 2003.

ADDRESSES: Copies of the supporting documents including the 
Environmental Assessment/Regulatory Impact Review/Final Regulatory 
Flexibility Analysis (EA/RIR/FRFA) and the HMS FMP may be obtained from 
Brad McHale, Highly Migratory Species Management Division, NMFS, 
Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. 
These documents are also available from the Highly Migratory Species 
Division Web site at www.nmfs.noaa.gov/sfa/hmspg.html.

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

SUPPLEMENTARY INFORMATION: The U.S. Atlantic highly migratory species 
(HMS) fisheries are managed under the Fishery Management Plan for 
Atlantic Tunas, Swordfish, and Sharks (HMS FMP). Implementing 
regulations at 50 CFR part 635 are issued under the dual authority of 
the Magnuson-Stevens Act (codified at 16 U.S.C. 1801 et seq.) and the 
Atlantic Tunas Convention Act (ATCA; codified at 16 U.S.C. 971 et 
seq.). Regulations issued under the authority of ATCA carry out the 
recommendations of ICCAT.

Background

    Background information about the need for revisions to the HMS 
regulations was provided in the preamble to the proposed rule (67 FR 
78404, December 24, 2002), and is not repeated here. By this final 
rule, NMFS modifies the target catch requirements for pelagic longline 
vessels to land incidentally caught BFT, adjusts the Longline category 
North/South division line and adjusts the Longline category subquotas 
for each area, and provides NMFS inseason authority to modify the BFT 
retention limits for pelagic longline vessels.

Changes From the Proposed Rule

    This final rule changes three of the proposed revisions to the 
regulatory text. In the proposed rule, two tiers of target catch 
requirements were proposed at 2,000 lbs. (907 kg) and 6,000 lbs. (2,727 
kg) to allow the landing of one and two incidentally caught BFT, 
respectively. The final rule adds a third

[[Page 32415]]

tier of target catch requirements by requiring the landing of 30,000 
lbs. (66,138 kg) of target fish to land three BFT. In addition, the 
proposed rule would have adjusted the Longline category subquotas to 
allocate 70 percent to the southern area and 30 percent to the northern 
area. The final rule divides the Longline category subquotas to 
allocate 60 percent to the southern area and 40 percent to the northern 
area. Finally, the advance notice for in season adjustment to target 
catch requirements was reduced from 30 days to no less than 21 days. 
These changes were made to further reduce dead discards of BFT, 
minimize negative social and economic impacts to the fishery, and to 
respond to comments regarding the changed fishing patterns of the 
pelagic longline fleet.

Comments and Responses

    Comment 1: Numerous comments supported establishing a target catch 
requirement in terms of a specific weight versus a percentage to allow 
for the retention of incidentally caught BFT. Comments stated that the 
pelagic longline fishery has changed since the two-percent target was 
implemented and having one set of target catch requirements coastwide 
will simplify regulations and facilitate compliance. A specific weight 
tolerance will also assist enforcement agents in assessing compliance.
    Response: The final action establishes target catch requirements as 
specific weights, rather than as percentages, with the intent of 
reducing BFT discards in all areas, and at the same time minimizing 
confusion and providing positive economic impacts to longline vessels 
in both southern and northern management areas. NMFS believes that a 
specific target weight regardless of geographic location would simplify 
regulation and facilitate compliance.
    Comment 2: NMFS should allow for a third and/or fourth tier of 
target catch to allow vessels to land three and/or four BFT for those 
vessels conducting longer trips. For example, NMFS should establish a 
target catch requirement for all areas, at all times of 20,000 lbs. 
(44,092 kg) to retain three BFT, and of 30,000 lbs. (66,138 kg) to 
retain four BFT. Other comments suggested NMFS allow full retention of 
all catch to eliminate all discards and bring the agency into full 
compliance with the Magnuson-Stevens Act.
    Response: NMFS has modified the final action to include a third 
tier of target catch allowance in the final action, explicitly allowing 
the retention of 3 BFT with 30,000 lbs. (66,138 kg) of target catch. 
This additional tier of target catch is consistent with the previous 
percentage-based target catch requirements that allowed a few vessels 
to land three BFT in conjunction with 30,000 lbs. (66,138 kg) of target 
catch. The proposed rule for this action would not have allowed these 
few vessels to retain three BFT regardless of the target catch onboard. 
Although only a handful of vessels are large enough to complete trips 
with target catches greater than 30,000 lbs. (66,138 kg), allowing 
these vessels to retain three BFT would further meet the intent to 
reduce discards of BFT, avoid incentives to target BFT, and not risk 
overharvest of the incidental catch quota.
    Comment 3: The preferred alternatives may not be providing a 
reasonable opportunity for pelagic longline vessels to harvest the 
quota allocated to that category. The inseason adjustment authority 
should not be limited to a range of zero to three BFT per trip and/or 
by 25 percent of the target catch requirements.
    Response: Under the Atlantic Tunas Convention Act, NMFS is required 
to provide U.S. fishermen a reasonable opportunity to take the BFT 
quota allocated to the United States by the ICCAT. Pelagic longline 
vessels are not allowed to target BFT and thus there is no directed 
fishery on BFT. However, due to the incidental catch of BFT in pelagic 
longline operations targeting other species, NMFS has provided a quota 
and target catch requirements to provide pelagic longline vessels a 
reasonable opportunity to land their incidentally caught BFT in order 
to reduce discards and provide positive economic impacts to the pelagic 
longline fishery.
    Comment 4: Numerous comments stated support for the relocation of 
the boundary line separating the northern and southern management areas 
to 31[deg]00' N. lat., near Jekyll Island, Georgia. This is an area 
with little longline activity and should reduce confusion regarding the 
area in which incidental BFT were harvested. Other comments stated that 
the Gulf of Mexico should be off limits to all retention of BFT by 
pelagic longline vessels and a boundary line should be established in 
the Straits of Florida.
    Response: NMFS' final action maintains the proposed location of the 
boundary line at 31[deg]00' N. lat., near Jekyll Island, Georgia. The 
intent of the line is to account for seasonal differences in the 
fisheries within each area and to prevent one area from consuming all 
available quota. The location of the line was chosen in an area with 
little longline fishing activity to facilitate enforcement and 
reporting. Eliminating the incidental retention of BFT by pelagic 
longline vessels operating in the Gulf of Mexico would not meet the 
intent of this rulemaking, as it could increase discards, and have 
negative impacts to pelagic longline fishermen.
    Comment 5: Comments stated support for a reallocation of the 
Longline category quota based on the new location of the North/South 
boundary line. Comments suggested the preferred alternative of 30 
percent for the northern area and 70 percent for the southern area 
should be reconsidered. The proposed allocation may not reflect the 
current fishing pattens of the pelagic longline fishery and may lead to 
increased effort and mortality on spawning BFT in the Gulf of Mexico, 
which has been designated by ICCAT as a spawning area in the Western 
Atlantic Ocean. Some comments suggested NMFS should re-calculate the 
North/South subquota allocation based on the number of hooks versus the 
number of sets. Some comments suggested a quota split of 50/50, while 
others suggested a split of 40 percent for the northern area and 60 
percent for the southern area.
    Response: Based on the analysis conducted in the Environmental 
Assessment, Regulatory Impact Review, and the Regulatory Flexibility 
Analysis, NMFS has determined that an adjustment to the Incidental 
Longline category subquota allocation between areas is warranted. Due 
to the movement of the boundary line and the adjustments in the target 
catch allowances in both the northern and southern areas, and the 
apparent redistribution of longline effort in response to bycatch 
reduction measures, NMFS adjusts the Longline category subquota to 
allocate 60 percent to the southern area and 40 percent to the northern 
area. This adjustment is made to reflect the estimated additional 
landings likely to be applied in the northern area based on the above 
analysis. The amount of BFT landed is expected to approach the subquota 
levels of the Longline category fishery, but not exceed them.
    Comment 6: Some comments stated that NMFS should increase the 
number of observers in the Gulf of Mexico pelagic longline yellowfin 
tuna fishery.Response: ICCAT requires five percent of the pelagic 
longline trips to be selected for observer coverage. Vessels are 
selected based on a random five percent sampling of sets. Actual 
deployment of observers on vessels in the past had been constrained by 
a number of factors including logistic requirements and safety concerns 
and thus it has not been possible to place

[[Page 32416]]

observers on all selected trips. NMFS is working towards improving 
observer coverage by increasing the sampling of trips to eight percent 
and facilitating increased communication between vessel operators and 
observer program coordinators, particularly in regards to safety 
requirements for the placement of observers (see 50 CFR 600.746), and 
the need to have all safety equipment on board as required by the U.S. 
Coast Guard.
    Comment 7: Numerous comments stated support for the inseason 
adjustment authority, but stated that the 30-day delayed effectiveness 
prior to the regulation changes is too long. NMFS should employ a 2-
week notice to be timely responding to resource concerns.
    Response: In the proposed rule, NMFS had proposed adjusting the 
limits through an inseason action, with 30 days public notice. However, 
NMFS agrees that the highly migratory nature of BFT could result in 
rapid changes of fishing gear interaction rates. In order for in-season 
adjustments to work effectively, NMFS must respond quickly. In 
addition, NMFS is concerned about providing adequate notice of changes 
to fishing vessels at sea. Therefore, NMFS has reconsidered the balance 
between prompt action and notification and reduced the public notice 
period to no less than 21 days, which is the expected trip length for 
larger vessels fishing further offshore.
    Comment 8: NMFS should define ``target catch'' so as to prohibit 
the landing of unmarketable species just to reach a minimum threshold 
to retain a BFT and encourage the release of all live BFT caught by 
pelagic longline vessels.
    Response: The current regulations addressing target catch limits at 
635.23 (f)(1) state that species other than BFT must be legally caught, 
retained, and offloaded from the same trip and recorded on the dealer 
weighout slip as sold. The current regulatory language meets the intent 
of preventing the landing of unmarketable species just to reach a 
minimum threshold. In regard to release of BFT retrieved alive by 
pelagic longline vessels, NMFS is currently working on a national 
bycatch reduction strategy. To view the goals, objectives, and 
strategies please visit www.nmfs.noaa.gov.
    Comment 9: NMFS should consider various physical oceanographic 
parameters and re-examine the Mid-Atlantic closure area because it is 
not used as a spawning area. Forcing vessels to move further offshore 
may produce a safety issue. Other comments stated that NMFS should 
analyze data gathered during the Northeast Distant experimental fishery 
to adjust management measures for the pelagic longline fishery in the 
future.
    Response: NMFS' intent in creating the Mid-Atlantic closure area 
was to ensure compliance with ICCAT recommendations to reduce the 
bycatch and dead discards of BFT by pelagic longline vessels, not to 
protect a potential BFT spawning area. The available data, based on 
logbooks submitted by fishermen, indicate a substantial decline in BFT 
bycatch throughout the year, indicating the closed area may be 
effective at reducing discards. Although NMFS realizes that it may be 
necessary to adjust the time and/or area of the closure based on new 
data including changed physical oceanographic patterns, fishing 
activity etc., available information does not warrant such changes at 
this time. NMFS will continue to analyze logbook and observer data from 
the Northeast Distant experimental fishery in order to consider 
possible adjustments to target catch requirements for landing BFT by 
longline vessels, or to make other adjustments as necessary in order to 
minimize dead discards.

Classification

    These regulatory amendments are published under the authority of 
the Magnuson-Stevens Act and ATCA. The Assistant Administrator for 
Fisheries, NOAA (AA), has determined that the regulations contained in 
this final rule are necessary to implement the recommendations of ICCAT 
and to manage the domestic Atlantic highly migratory species fisheries.
    NMFS has prepared a Final Regulatory Flexibility Analysis (FRFA) 
for this final rule. An Initial Regulatory Flexibility Analysis was 
prepared for the proposed rule and submitted to the Chief Counsel for 
Advocacy of the Small Business Administration. No comments were 
received on the IRFA concerning the economic impact of this rule. The 
analyses of the FRFA found that the final actions under this rule would 
have beneficial impacts; therefore, consideration of alternatives to 
minimize impacts to small entities is contrary to the purposes of the 
Regulatory Flexibility Act. The proposed rule (67 FR 78404, December 
24, 2002) sets forth the purpose and need for this action and a 
description of the alternatives considered and impacts of those 
alternatives, which are not repeated here. There are approximately 171 
pelagic longline vessels that are permitted to retain Atlantic tunas 
and swordfish, all of which are considered small entities, and average 
annual gross revenues per vessel are approximately $168,000. Annual 
gross revenues from the Atlantic pelagic longline fishery are 
approximately $29 million. NMFS selected this final action because the 
selected target catch requirements will minimize BFT discards while 
allowing retention of truly incidentally caught BFT and preventing a 
directed fishery. One target catch alternative considered was rejected 
because it would not reduce BFT discards as much as the final action, 
and it would have negative economic impacts. While the other 
alternatives generally had positive economic impacts, NMFS did not 
select them because they maintained differential target catch 
requirements, which no longer seemed warranted based on available data, 
or because they would not have reduced BFT discards as much as the 
final action. The final action will have a positive economic impact on 
revenues approximately a 1.2 to 1.5% increase of pelagic longline 
vessels. While the new north/south boundary line and inseason 
adjustment authority will not have any direct economic impacts, NMFS 
selected these measures as part of the final action because they could 
help prevent negative impacts on small entities due to closures. In 
addition, the new boundary line was selected to address confusion 
regarding the applicability of regulations. A copy of the FRFA and 
other analytical documents prepared for this rule are available from 
NMFS (see ADDRESSES).
    NMFS prepared an EA for this final rule, and the AA has concluded 
that there would be no significant impact on the human environment. The 
EA presents analyses of the anticipated impacts of these final actions 
and the alternatives considered. A copy of the EA and other analytical 
documents prepared for this rule, are available from NMFS (see 
ADDRESSES).
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The regulations implemented through this final rule are not 
expected to have any additional impact on sea turtles or other 
endangered species or marine mammals as this action is not likely to 
increase or decrease pelagic longline effort, nor is it expected to 
shift effort into other fishing areas. A Biological Opinion (BiOp) 
issued June 14, 2001, concluded that continued operation of the 
Atlantic pelagic longline fishery is likely to jeopardize the continued 
existence of endangered and threatened sea turtle species under NMFS 
jurisdiction. On July 9, 2002 (67 FR 45393), NMFS implemented the 
reasonable and prudent alternative required by the BiOp. None of the

[[Page 32417]]

actions in this final rule would have any additional impact on sea 
turtles as these actions would not likely increase or decrease pelagic 
longline effort, nor are they expected to shift effort into other 
fishing areas. No impacts are expected from this final action that 
would adversely affect the implementation of the requirements of the 
BiOp.
    NMFS has determined that the final regulations would be implemented 
in a manner consistent to the maximum extent practicable with the 
enforceable policies of those Atlantic, Gulf of Mexico, and Caribbean 
coastal states that have approved coastal zone management programs. The 
proposed regulations were submitted to the responsible state agencies 
for their review under Section 307 of the Coastal Zone Management Act. 
As of May 15, 2003, NOAA Fisheries has received 11 responses, all 
concurring with NOAA Fisheries' consistency determination. Because no 
responses were received from other states, their concurrence is 
presumed.
    The area in which this final action is planned has been identified 
as essential fish habitat (EFH) for species managed by the New England 
Fishery Management Council, the Mid-Atlantic Fishery Management 
Council, the South Atlantic Fishery Management Council, the Gulf of 
Mexico Fishery Management Council, the Caribbean Fishery Management 
Council, and the Highly Migratory Species Management Division of NOAA 
Fisheries. It is not anticipated that this action will have any adverse 
impacts to EFH and, therefore, no consultation is required.

List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements, Statistics, Treaties.

    Dated: May 23, 2003.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR part 635 is amended as 
follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

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

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

0
2. In Sec.  635.23, paragraph (f) is revised to read as follows:


Sec.  635.23  Retention limits for BFT.

* * * * *
    (f) Longline category. Persons aboard a vessel permitted in the 
Atlantic Tunas Longline category may retain, possess, land, and sell 
large medium and giant BFT taken incidentally when fishing for other 
species. For vessels fishing North or South of 31[deg]00' N. lat., 
limits on retention, possession, landing and sale are as follows:
    (1) One large medium or giant BFT per vessel per trip may be 
landed, provided that at least 2,000 lb (907 kg) of species other than 
BFT are legally caught, retained, and offloaded from the same trip and 
are recorded on the dealer weighout slip as sold. Two large medium or 
giant BFT per vessel per trip may be landed, provided that at least 
6,000 lb (2,727 kg) of species other than BFT are legally caught, 
retained, and offloaded from the same trip and are recorded on the 
dealer weighout slip as sold. Three large medium or giant BFT per 
vessel per trip may be landed, provided that at least 30,000 lb (13,620 
kg) of species other than BFT are legally caught, retained, and 
offloaded from the same trip and are recorded on the dealer weighout 
slip as sold.
    (2) NMFS may increase or decrease the Longline category retention 
limit of large medium and giant BFT over a range from zero to a maximum 
of three per trip, or, for a given BFT retention limit, increase or 
decrease the target catch requirement by 25 percent from the level 
specified in paragraph (f)(1) of this section. Such increase or 
decrease in the BFT retention limit or target catch requirement will be 
based on a review of dealer reports, observer reports, vessel logbooks, 
landing trends, availability of the species on the fishing grounds, and 
any other relevant factors, and will consider the likelihood of 
increasing dead discards of BFT and/or exceeding the incidental 
landings quota established for the pelagic longline fishery. Such 
adjustments may be made separately for vessels fishing North or South 
of 31[deg]00' N. lat. NMFS will adjust the retention limits and target 
catch requirements specified in paragraph (f)(1) of this section by 
filing the adjustment with the Office of the Federal Register for 
publication. In no case shall such adjustment be effective less than 21 
calendar days after the adjustment is filed with the Office of the 
Federal Register for publication.
* * * * *

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


Sec.  635.27  Quotas.

    (a) * * *
    (3) Longline category quota. The total amount of large medium and 
giant BFT that may be caught incidentally and retained, possessed, or 
landed by vessels for which Longline category Atlantic tunas permits 
have been issued is 8.1 percent of the overall U.S. BFT quota. In the 
initial quota specifications issued under paragraph (a) of this 
section, no more than 60.0 percent of the Longline category quota may 
be allocated for landing in the area south of 31[deg]00' N. lat.
* * * * *
[FR Doc. 03-13556 Filed 5-29-03; 8:45 am]
BILLING CODE 3510-22-S