[Federal Register Volume 68, Number 247 (Wednesday, December 24, 2003)]
[Rules and Regulations]
[Pages 74504-74512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31758]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No.031028268-3321-02; I.D. 091603F]
RIN 0648-AR12


Atlantic Highly Migratory Species; Bluefin Tuna Season and Size 
Limit Adjustments

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

ACTION: Final rule.

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SUMMARY: Under the framework provisions of the Fishery Management Plan 
for Atlantic Tunas, Swordfish, and Sharks (HMS FMP) governing the 
Atlantic bluefin tuna (BFT) fishery, NMFS amends the regulations 
regarding the opening date of the Purse seine category, closure dates 
of the Harpoon and General categories, and size tolerances of large 
medium BFT for the Purse seine and Harpoon categories. The intent of 
this final rule is to further achieve domestic management objectives 
under the HMS FMP and Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) and to implement recommendations 
of the International Commission for the Conservation of Atlantic Tunas 
(ICCAT) pursuant to the Atlantic Tunas Convention Act (ATCA).

DATES: This rule is effective on January 23, 2004, except for Sec.  
635.27(a)(1)(i)(C) which is effective December 24, 2003.

ADDRESSES: Copies of the supporting documents including the 
Environmental Assessment/Regulatory Impact Review/Final Regulatory 
Flexibility Analysis (EA/RIR/FRFA) and the Fishery Management Plan for 
Atlantic Tunas, Swordfish, and Sharks (HMS FMP) may be obtained from 
Dianne Stephan, 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 http://www.nmfs.noaa.gov/sfa/hmspg.html.

FOR FURTHER INFORMATION CONTACT: Dianne Stephan at (978) 281-9397.

SUPPLEMENTARY INFORMATION: Atlantic tunas are managed under the dual 
authority of the Magnuson-Stevens Act and ATCA. ATCA authorizes the 
Secretary of Commerce (Secretary) to implement binding recommendations 
of ICCAT. The authority to issue regulations under the Magnuson-Stevens 
Act and ATCA has been delegated from the Secretary to the Assistant 
Administrator for Fisheries, NOAA (AA).
    Background information regarding these regulatory changes was 
provided in the preamble to the proposed rule (68 FR 63747, November 
10, 2003), and is not repeated here. By this final rule, NMFS announces 
the new Purse seine start date of July 15; the new Harpoon category 
closure date of November 15 or when the quota is reached, whichever 
comes first; the General category closure date of January 31 or when 
the quota is reached, whichever comes first; and new large medium BFT 
tolerances for the Purse seine and Harpoon categories. The large medium 
tolerance limit for each vessel in the Purse seine category is 15 
percent by weight of that vessel's

[[Page 74505]]

annual landings, and the large medium tolerance for the Harpoon 
category is two BFT per vessel per day.

Changes From the Proposed Rule

    Several sections of regulatory text have been modified to be 
consistent with the change to the Purse seine category start date, 
specifically, Sec.  635.28 (a)(2) and Sec. Sec.  635.71(b)(10) and 
(b)(17). In addition, the final rule also includes a provision to delay 
the Purse seine category start date to no later than August 15 should 
it further assist in achieving the objective of the rule to reduce gear 
conflicts or overlap between fishing categories.

Comments and Responses

    Comment 1 - NMFS received numerous comments in favor of a change in 
the Purse seine category start date from August 15 to July 15. Many 
commenters supported the July 15 Purse seine category start date for a 
variety of reasons including providing a greater length of time over 
which to spread Purse seine category landings, providing more time for 
purse seine vessels to catch their quota, and providing more 
opportunity to fish when the weather is better. In supporting the July 
15 start date, some commenters stated that as the bulk of General 
category landings now occur later in the year than they had occurred 
when the August 15 purse seine start date was originally established, 
the date should be adjusted to July 15. Commenters stated that this 
change would be consistent with the original purpose of a purse seine 
start date that reduces overlap between fishing categories. One 
commenter also stated that currently the peak General category and 
Purse seine category landings coincide, which results in negative 
economic impacts for all in the fishery. This commenter noted that 
although a change to July 15 may negatively affect the Harpoon 
category, the proposed increase in allowance of two large mediums per 
vessel per day for the Harpoon category may mitigate these negative 
impacts by providing more of an opportunity for the Harpoon category to 
attain its quota by July 15, prior to the commencement of the Purse 
seine category fishing season.
    Response - The final action establishes a start date for the Purse 
seine category of July 15. The intent of this action is to maximize 
positive economic impacts to the BFT fishery as a whole while 
minimizing negative impacts to the Harpoon category. Increasing the 
length of the season for the Purse seine category should help alleviate 
the overlap of large catches in the late summer and fall by allowing 
for the distribution of purse seine catches throughout more of the 
season, should improve market prices in the Purse seine and General 
categories, and would minimize gear conflict on the water. The increase 
of the Harpoon category large medium retention limit may mitigate 
impacts by improving the ability of the Harpoon category to land the 
annual quota, perhaps prior to the commencement of the Purse seine 
category season. In addition, the final rule includes a provision for 
delaying the start date to no later than August 15 if a delay would 
further reduce gear conflicts or overlap between the different 
categories. Any adjustment to the start date would be filed with the 
Office of the Federal Register but would not be filed less than 14 
calendar days prior to July 15. Because there are only five vessels in 
the Purse seine category, NMFS will be able to provide actual notice to 
the affected fishermen.
    Comment 2 - NMFS also received comments suggesting alternative 
start dates for the Purse seine category as well as other commercial 
fishing categories. Some commenters opposed to a July 15 Purse seine 
category start date supported the status quo August 15 date, and stated 
that the slower, late fall market could probably better withstand the 
fiscal impacts of large purse seine catches. One commenter preferred a 
start date for the Purse seine category later than August 15 and 
creation of an earlier start date than June 1 for the commercial 
handgear categories to reduce overlap. One commenter specifically 
requested an earlier season opening date of the General and Harpoon 
categories on May 1. A few commenters supported a purse seine start 
date earlier than July 15, and a number of commenters specifically 
requested that all categories start on the same date. One commenter 
requested that the purse seine season be open year-round.
    Response - NMFS analyses for this action determined that with the 
status quo purse seine start date of August 15, the early fall market 
for the overall fishery suffers from reduced ex-vessel prices that are 
temporally associated with the height of Purse seine and General 
category landings. A July 15 start date is intended to shift purse 
seine landings to earlier in the season and improve ex-vessel prices 
during the early fall, which is when the General category harvests most 
of its quota. Alternative dates do not appear to meet the objectives of 
the rulemaking to assist overall fishery prices and avoid overlap 
between the Purse seine and General categories. A start date later than 
August 15 would shorten the season and could thereby negatively affect 
the ability of the Purse seine category to harvest its quota, which 
contradicts one objective of this final rule. A start date earlier than 
July 15 would allow for a longer period of time during which purse 
seine and harpoon landings would overlap and therefore could increase 
negative impacts to the Harpoon category, which are somewhat mitigated 
by the increase in the large medium tolerance for that category. 
Harmonizing all commercial fishery start dates to the same date would 
undermine the objective of this action to minimize gear conflicts on 
the water and to improve ex-vessel prices. Opening the start date for 
any fishery prior to June 1 would require adjustment of the fishing 
year, which must be accomplished through an FMP amendment. A year-round 
fishery for the Purse seine category was not considered as an 
alternative since it does not address the need to reduce gear conflicts 
identified in the original purpose for this action. However, as it is 
likely that market conditions and landing rates will vary among 
categories and from fishing year to fishing year the final rule 
includes a provision to provide some flexibility for adjusting the 
commencement of the Purse seine start date to no later than August 15.
    Comment 3 - Several commenters opposed a July 15 start date because 
it was inconsistent with a current industry agreement regarding 
operations of spotter aircraft in the purse seine fishery. For this 
reason, one commenter supported a July 28 start date. The commenter 
noted that this fishing year was relatively calm regarding spotter 
plane activity and that the fishery would benefit from a permanent 
regulation regarding a July 28 start date for purse seine operations 
and their associated spotter aircraft.
    Response - The 2003 fishing year was the first year for 
implementation of an industry agreement regarding the use of spotter 
planes throughout the industry. The July 28 start date for purse seine 
vessels and associated spotter aircraft established in the industry 
agreement is not an enforceable provision of NMFS regulations and could 
change based on revised industry arrangements. Consequently, it could 
be problematic to link season openings to actions not in NMFS control. 
NMFS recognizes the benefits of industry communication and cooperation 
on the issue of use of spotter planes in the fishery, and encourages 
the industry to continue to work together towards a constructive 
arrangement. The final rule includes a provision to provide some 
flexibility to the commencement of the Purse seine start date and any 
influence of spotter

[[Page 74506]]

planes on landings rates could be considered as part of the 
deliberations to delay the opening from July 15 to a more appropriate 
date but no later than August 15.
    Comment 4 - Several comments were received regarding quota 
allocation to the Purse seine category, the impact of purse seine 
landings on the market, and timing of BFT market forces on ex-vessel 
prices in general. Several commenters stated that the purse seine 
fishery interfered with both the General and Harpoon category 
fisheries, that the Purse seine category should be eliminated 
altogether, and the quota redistributed among the other commercial 
categories with higher ex-vessel value landings. These comments noted 
that there has been ample opportunity for purse seine vessels to catch 
available quota, i.e., if they had chosen to fish off southern states 
later in the season, and that purse seine fishing operations this year 
tended to disrupt the biology and behavior of the fish as well as other 
traditional fishing patterns and agreements. A commenter stated that 
shifting the start date to avoid market gluts was not going to help as 
the volume of fish landed by purse seiners would flood the market 
regardless of when they were landed. Several commenters noted that 
adjustment of start and opening dates among the categories would not 
necessarily assist prices of ex-vessel landings as the markets in Japan 
were dominated by imports from other countries. In addition, they noted 
that Japan had business interests in farm raised BFT in pens around the 
world and could control the flow of tuna from these pens depending on 
the Japanese domestic market need. A few commenters also mentioned that 
there was now a strong U.S. domestic market for BFT and that 
controlling or even banning imports of BFT into the United States could 
provide stronger prices for U.S. domestic fishermen for BFT destined 
for internal domestic markets.
    Response - One of the purposes of this action is to provide modest 
changes to the current timing of several commercial categories to 
assist in increasing economic yield in the fishery overall. To achieve 
this objective, NMFS analyzed means of decreasing the overlap of the 
General category and Purse seine category fisheries to improve market 
conditions and reduce conflicts as these two fishing categories are 
responsible for the greatest amount of landings in the BFT fishery. 
This action was intended to provide modest adjustments, pending 
development of an FMP amendment, to address allocation issues that have 
arisen. The final rule provides flexibility for fine tuning of the 
commencement of the Purse seine category between July 15 and August 15 
to further assist in achieving the objective of reducing gear conflicts 
and overlap between fishing categories based on, among others, data 
from landings and market conditions. NMFS recently published a Notice 
of Intent to prepare an FMP amendment (68 FR 40907; July 9, 2003) which 
will address BFT allocation as well as other issues. Elimination of the 
Purse seine category would require an FMP amendment as well. 
Information from ICCAT's Bluefin Statistical Document Program indicates 
that Japan imports BFT from many countries and that the U.S. domestic 
market for BFT has grown over the past several years. Controlling this 
international flow of product to improve United States domestic prices 
is beyond the purview of this rulemaking and would involve 
international trade negotiations with careful consideration of 
consequences to existing trade treaties and agreements. While this 
action will not be able to address BFT imports, it will provide modest 
adjustments to alleviate overlap in sectors of the U.S. Atlantic BFT 
fisheries, which could contribute to improved ex-vessel prices and 
reduce gear conflicts on the water.
    Comment 5 - Comments were generally in favor of the November 15 end 
date for the Harpoon category. Commenters supported implementation of 
the end date as a means of preserving the Harpoon category quota for 
the traditional fishery. A few comments were opposed to establishing an 
end date. One comment stated it was creating two different standards 
for categories within the fishery especially when NMFS was considering 
extending the General category season. A few commenters requested that 
the end date be established on November 1.
    Response - The final action includes a November 15 end date for the 
Harpoon category. This action is intended to maintain the Harpoon 
category quota for the traditional Gulf of Maine fishery, which upholds 
the purpose of the 1980 action that established the Harpoon category 
(45 FR 40118; June 13, 1980). Unlike other categories, the original 
intent of this fishery and quota allocation was for a particular 
geographic sector of traditional harpoon fishermen. November 15 is the 
approximate date by which most or all BFT have migrated out of the Gulf 
of Maine area. By closing the fishery on November 15, fishermen in 
other areas will not be able to land BFT against the Harpoon category 
quota. However, use of a harpoon to harvest BFT will continue to be 
available to all fishermen under the General category when the General 
category season is open. NMFS did not consider a November 1 end date 
because BFT landings in New England have occurred in mid-November, and 
November 15 attempts to provide the traditional fishery with all 
available opportunities to harvest the quota while still avoiding 
investment in a fishery outside the New England area.
    Comment 6 - NMFS received several comments in favor of extending 
the General category end date. Many commenters supported the temporal 
extension of the General category fishery to include a winter fishery 
off south Atlantic states, and noted the important economic 
contribution this fishery makes to the local economy. Several 
commenters noted that they had invested in this fishery by purchasing 
equipment and needed more certain annual access to the fishery as 
opposed to depending upon potential remaining late season quota. One 
commenter stated that the 2003 quota increase from ICCAT would provide 
for this action with minimal impact on the summer and fall New England 
General category fishery. Other commenters noted that this would 
address some of the concerns raised by the North Carolina Division of 
Marine Fisheries petition, such as providing more fair and equitable 
access to BFT when they are available off the south Atlantic coast. A 
number of commenters requested that the January 31 season end date be 
applicable for the 2003 fishing year, i.e., for January 2004.
    Response - The final action includes a January 31 end date for the 
General category season. The intent of this action is to more broadly 
distribute General category fishing opportunities both temporally and 
geographically. Although there may be a small negative impact on 
General category fishermen in the northern areas of the fishery, NMFS 
agrees that the recent increase in the ICCAT quota as well as NMFS' 
continuing management of the fishery with annual specifications and 
inseason actions will minimize these impacts. In addition, northern 
area General category vessels could mitigate impacts by traveling south 
to participate in the winter fishery. This action addresses, in part, a 
petition for rulemaking submitted by the North Carolina Division of 
Marine Fisheries to provide a reasonable opportunity for southern 
fishermen to harvest BFT when they are available in the southern area. 
NMFS published a Federal Register notice requesting public comment on 
the petition (67 FR 69502; November 18, 2002), and received 28 comments 
which ranged from support to opposition.

[[Page 74507]]

 Other aspects of the petition relate to changes in the BFT quota 
allocations, which would require an FMP amendment process with further 
analyses and input from the HMS Advisory Panel (AP) and the public. The 
AP generally supported a late season commercial General category 
fishery for southern Atlantic states, depending upon the details and 
impacts on other fishery participants. In particular, AP members were 
generally supportive of using some proportion of the additional BFT 
quota allocated by ICCAT in 2002 towards meeting the objectives of the 
petition. The AP will revisit BFT allocation issues at its next meeting 
scheduled for February 9 - 11, 2004.
    Comment 7 - Several commenters were opposed to extending the 
General category season and recommended alternative General category 
closure dates. A few commenters stated that the fishery off North 
Carolina was a new fishery rather than a traditional fishery, and thus 
should not be considered in setting the General category season and no 
extension should be provided. Several commenters proposed an 
alternative end date for the General category season of November 30, 
and requested that the General category retention limits early in the 
season be increased in order to provide northern area fishermen with a 
greater opportunity to harvest the quota. Several comments stated 
concern that if the General category was open during December, there 
may not be enough quota for the extended fishery in January and thus 
preferred opening the General category for either December or January 
but not both. Other comments suggested providing for a distinct set-
aside quota and time period for a North Carolina fishery.
    Response - The intent of this action is to more broadly distribute 
General category fishing opportunities both temporally and 
geographically and provide for an increase in optimum yield for the 
fishery overall. At the time of development of the HMS FMP, the General 
category quota tended to be harvested prior to the migration of BFT to 
waters off the southern states. However, since that time, the fishery 
has changed and General category quota has been available later into 
the season. Unlike the Harpoon category quota, the General category 
quota was not established for use solely by a traditional New England 
fishery. The potential increase in gross revenues provided by a winter 
General category fishery could help maximize optimum yield for the BFT 
fishery overall. Reallocation of quota among time periods or 
establishing set-aside quotas for particular areas would require an FMP 
amendment and is beyond the scope of this rulemaking. These issues may 
be addressed in HMS FMP Amendment Two which is currently under 
development. A Notice of Intent to prepare this amendment was published 
in the Federal Register on July 9, 2003 (68 FR 40907).
    Comment 8 - Comments were generally in favor of the increase in 
tolerance limit for the Harpoon category. Commenters stated that this 
fishery is selective, that it is fair and equitable to adjust the 
tolerance if doing so for the Purse seine category, and an increase in 
the tolerance limit would not result in an increase in dead discards. A 
few commenters opposed any tolerance of large medium BFT. One commenter 
noted that the decrease in availability of giant BFT and any concerns 
regarding additional mortality of large medium were insignificant when 
compared to mortality of small fish in the eastern Atlantic and 
Mediterranean.
    Response - The final action increases the tolerance limit for large 
medium BFT retention in the Harpoon category to two fish per vessel per 
day. The intent of this action is to balance mortality of pre-spawning 
fish with the requirement to provide a reasonable opportunity for the 
Harpoon category to attain its annual quota while avoiding dead 
discards. Although NMFS stated at the proposed rule stage that logbooks 
were not expected to be implemented, it is clear that additional 
information about at-sea operations is needed in order to better 
evaluate the affect of tolerance limits on dead discards and overall 
mortality of pre-spawning BFT. NMFS will pursue collection of such 
information through the implementation of previously approved vessel 
logbook and/or observer programs. To avoid duplication, existing 
programs for other fisheries such as the Northeast Region Vessel Trip 
Report will be evaluated relative to developing HMS specific reporting 
mechanisms.
    Comment 9 - NMFS received comments both in favor of and opposed to 
the proposed increase in tolerance limit for the Purse seine category. 
Some commenters were opposed to any increase in tolerance limit, while 
others opposed the proposed tolerance in favor of a higher one.
    Many commenters who were in favor of the change in tolerance limits 
stated that purse seine vessels would not target smaller fish as a 
result of a tolerance limit increase. Some commenters also noted that 
the mortality of undersized fish in the purse seine fishery was 
negligible when compared with mortality of small fish in the east 
Atlantic or even mortality of small fish in the U.S. Angling category. 
Commenters stated that increasing tolerance was particularly relevant 
when one considered the new data regarding mixing rates between east 
and west Atlantic stocks, and the uncertainty of BFT size and age at 
maturity.
    Some commenters opposed to an increase in tolerance limit stated 
that the preferred alternative (15 percent by weight) would result in 
purse seine vessels targeting smaller fish, and could result in an 
increase of dead discards. Many commenters requested a thorough study 
of the effect of any increase in tolerance limits on dead discards. A 
commenter stated that purse seine vessels already had many advantages 
over other fishing categories, and that perhaps larger mesh nets would 
reduce catch of undersized BFT. Another commenter noted that there is a 
higher mortality associated with release of undersized BFT from purse 
seine nets compared to those released alive off hook-and-line. This 
commenter could only support up to a 50-percent increase if observers 
were deployed on all vessels; otherwise both trip and annual limits 
should remain the same. At least one commenter specifically requested 
that a trip limit remain in place for the Purse seine category.
    Several commenters suggested a higher tolerance limit than that 
proposed, and some suggested waiving the tolerance limit all together 
and proposed a 73-inch (185.4 cm) minimum size for the Purse seine 
category. A commenter stated that there is a large potential for 
discards and wasted mortality because of the preponderance of schools 
of mixed BFT sizes, and suggested that the tolerance be increased to 50 
percent by weight as a form of mitigation. This commenter stated that 
approximately 315 more large medium BFT would be harvested at a 25 
percent tolerance limit than a 15 percent tolerance limit, and that 315 
more BFT would be biologically insignificant. Several commenters 
broadened this request to establish 73-inch as a minimum size for all 
commercial fishing categories. Several commenters emphasized the need 
for the United States to ensure all possible quota is utilized in order 
to support domestic needs at ICCAT negotiations. A number of commenters 
referred to the 25-percent tolerance limit provided in year 2003 
exempted fishing permits (EFPs), and encouraged NMFS to continue with 
what they considered a successful approach.
    Response - The final action includes an increase in tolerance for 
large

[[Page 74508]]

medium BFT in the Purse seine category of up to 15 percent of landings 
(by weight). The intent of this action is to balance mortality of large 
medium BFT while increasing the ability of the Purse seine category to 
catch the annual quota. NMFS has determined that only a modest increase 
in large medium tolerance is appropriate at this time, in light of the 
uncertainty of the effect of a greater tolerance limit on overall 
mortality of large mediums including dead discards, stock rebuilding, 
and dead discards of undersized BFT. NMFS estimates that an increase in 
the tolerance limit of up to 50 percent would result in an additional 
direct mortality of approximately 1,066 more large medium BFT over the 
current status quo direct mortality of 251 fish, i.e. over a four-fold 
increase.
    Data from the 2003 season, which relaxed tolerance limits for the 
purse seine fishery to 25 percent under EFPs, show that purse seine 
vessels were able to increase landings over 2002 levels with the 
increased tolerance limit. Further evaluation of this data, in addition 
to socio-economic data to be provided from the 2003 EFP fishery, will 
assist NMFS with future management of this fishery sector, including 
compliance and enforcement of revised tolerance limits. NMFS will be 
collecting data on dead discards and other variables in this fishery 
through previously approved programs including vessel logbooks and/or 
observers. Additional data regarding discard rates and mortality of 
large medium BFT in the Purse Seine category will help to determine the 
biological impacts of adjusting the tolerance limits.
    Comment 10 - One commenter requested that electronic comments via 
email be accepted in the future.
    Response - NMFS has implemented pilot programs which accepted 
electronic comments for past rulemakings with some success. The agency 
intends to pursue the use of electronic media for public comment in the 
near future.
    Comment 11 - One commenter noted that reciprocity should be 
established for commercial fishermen from other states to fish in North 
Carolina waters.
    Response - The issue of fishing access in state waters by out of 
state fishermen is a matter of state jurisdiction and not under the 
purview of NMFS. However, NMFS notes that the State of North Carolina 
has provided reciprocity for commercial BFT fishermen from other 
states. In order to fish commercially for BFT in North Carolina, BFT 
commercial fishermen from other states are now able to obtain a 
``license to sell'' which allows them to sell their catch in North 
Carolina. Out of state vessels are also allowed to fish within state 
waters with a permit from North Carolina Division of Marine Fisheries.
    Comment 12 - A commenter suggested providing a ``mulligan'' or 
tolerance limit of some set number of undersized fish per vessel in all 
categories that would allow vessels to retain and land accidentally 
caught undersized fish and reduce discards. The commenter stated that 
this approach could also help reduce incentives to sell these 
undersized fish illegally, and that the Japanese market has a 
preference for these smaller sized fish and offers relatively higher 
prices per pound.
    Response - Adjusting size limits or tolerance limits for reasons 
other than improving the ability of the Purse seine and Harpoon 
categories to harvest their respective quotas was beyond the objective 
for this action. A more comprehensive approach towards eliminating dead 
discards will be addressed in HMS Amendment Two.
    Comment 13 - Comments were received regarding decreasing quotas for 
all species; eliminating the use of gill nets, seine nets, longlines, 
and harpoons; and including environmentalists on agency panels. One 
commenter noted that an ecosystem imbalance caused by a reduction in 
the number of herring available in New England waters has resulted in a 
decreased availability of BFT in New England. Many commenters opposed 
the recent closing of the BFT Angling category.
    Response - These issues are outside the scope of the current 
rulemaking. NMFS has issued a notice of intent for preparation of an 
amendment to the HMS FMP (68 FR 40907; July 9, 2003) which could 
address many of these issues, as well as others, during the FMP 
amendment process. The Herring fishery is managed under the Herring 
Fishery Management Plan and is currently in the amendment process. The 
New England Fisheries Management Council is the responsible council for 
the Herring FMP amendment and has analyzed several alternatives for 
action that include considerations of the impact of herring on elements 
of the ecosystem such as predator- prey relationships. The BFT Angling 
category was closed on November 17 (68 FR 64990, November 18, 2003) 
because of recent data indicating an over-harvest of this category in 
2002. NMFS is reviewing these data to determine if further action is 
necessary.

Classification

    This final rule is published under the authority of the Magnuson-
Stevens Act and ATCA. The 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 HMS 
fisheries. NMFS has determined that these regulations are consistent 
with the Magnuson-Stevens Act, ATCA and ICCAT recommendations.
    This action relieves a restriction by extending the BFT General 
category end date until January 31, thus providing this category with 
approximately 30 more days in the fishing season. The General category 
closed on December 10 because the General category had attained its 
quota. However, there is additional quota available in other categories 
that NMFS intends to transfer into the General category in January 
2004, after updating and reviewing landings data. This action will re-
open the General category to fishing through January 31 to allow for 
the harvest of the additional quota. Therefore, pursuant to 5 U.S.C. 
553(d)(1), the 30-day delayed effectiveness period is not applicable to 
Section 635.27(a)(1)(i)(c), the General category end date provision.
    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) for 
the proposed rule and submitted it to the Chief Counsel for Advocacy of 
the Small Business Administration. No comments were received on the 
IRFA concerning the economic impact of this final rule. A summary of 
the FRFA is provided below.
    The analysis for the FRFA examines the impacts of the alternatives 
for adjusting the Purse seine category start date, establishing a 
Harpoon category end date, adjusting the General category end date, and 
adjusting the retention limit for large medium BFT in the Harpoon and 
Purse seine category fisheries on small entities. The purpose of this 
final action is to ensure the BFT fishery is managed consistently with 
the objectives of the HMS FMP and its implementing regulations, 
applicable statutes including the Magnuson-Stevens Act and ATCA, and 
the 1998 ICCAT Rebuilding Plan for western Atlantic BFT.
    The analysis for the FRFA assesses the impacts of the various 
alternatives on the vessels that participate in the BFT fisheries, all 
of which are considered small entities. This final action would affect 
vessels in three permit categories, namely the Purse seine, Harpoon, 
and General categories. The gross revenues for 2002, and number of 
vessels to date for 2003 for

[[Page 74509]]

each category are as follows: General category, $13.9 million, 6,797 
vessels; Purse seine category, $3.0 million, 5 vessels; and the Harpoon 
category, $0.5 million, 59 vessels.
    Three alternatives were analyzed for the adjustment of the Purse 
seine category start date, including the no action/status quo 
alternative of an August 15 start date, the same start date as all 
other categories - June 1, and the selected alternative of a July 15 
start date. These alternatives were evaluated to determine their 
ability to improve optimum yield and ex-vessel prices for the Purse 
seine and General categories while minimizing negative impacts to other 
commercial categories, specifically the Harpoon category. Because of 
the various factors that affect ex-vessel prices for BFT (i.e., supply, 
quality, etc.), the exact effect of different Purse seine category 
season start dates on ex-vessel prices is unknown. NMFS estimated these 
impacts by assuming that the amount of product on the market was the 
primary factor affecting ex-vessel prices.
    Under the no action alternative, both the General and Purse seine 
categories appear to be negatively affected by depressed ex-vessel 
prices which appears to result from a mid-season glut of BFT on the 
market. However, under this alternative the Harpoon category benefits 
with higher ex-vessel prices early in the season before the Purse seine 
category commences.
    Another alternative, opening the Purse seine category on June 1, 
could shift Purse seine category landings to earlier in the year and 
result in positive impacts for the Purse seine and General categories 
by relieving the mid-season market glut and distributing landings more 
uniformly over the fishing year. However, the Harpoon category could 
suffer the most negative impacts under this alternative because of the 
overall net increase in early season landings resulting from the 
overlap with the Purse seine category fishery season that would 
increase by 76 days. This overlap would occur during the time period 
when the Harpoon category traditionally experiences the best ex-vessel 
prices and on average annually lands the bulk (87 percent) of its 
product.
    The selected alternative of a July 15 start date appears to 
minimize the negative impacts on the Harpoon category by reducing by 
more than half the amount of overlap with the Purse seine category 
season relative to the June 1 start date alternative, while still 
reducing the mid-season market glut, which should positively impact 
Purse seine and General category ex-vessel prices. Under this 
alternative, increase in overlap with the Harpoon category would be 
reduced to 30 days and such overlap would occur during the time period 
when the Harpoon category averages approximately 26 percent of its 
gross revenues annually. Due to the large amount of landings, gross 
revenues and numbers of participants attributed to the Purse seine and 
General category commercial BFT sectors, this alternative is expected 
to provide the greatest positive impacts to the BFT fishery as a whole, 
even though the smaller Harpoon category may experience slightly 
negative economic impacts. Any negative impact to the Harpoon category 
could be partially mitigated by the increase in this final rule of the 
Harpoon category tolerance limit for large medium BFT to two fish per 
vessel per day, which would improve the ability of the Harpoon category 
to catch its annual quota. In addition, in response to comment, the 
final rule for this alternative includes a provision for delaying the 
start date to no later than August 15 if such a delay would further 
reduce gear conflicts or overlap between the different categories. Any 
adjustment to the start date would be filed with the Office of the 
Federal Register but would not be filed less than 14 calender days 
prior to July 15. Because there are only five vessels in the Purse 
seine category, NMFS will be able to provide actual notice to the 
affected fishermen.
    Three alternatives were also considered for the Harpoon category 
end date. The no action/status quo alternative would maintain an open 
Harpoon category season year round, provided there is Harpoon category 
quota available. Alternative two (selected) would close the Harpoon 
category season on November 15, and alternative three would establish a 
flexible season end date based on the actual dates of the BFT fall 
migration.
    The no action/status quo alternative is expected to result in 
negative impacts for the traditional northern Harpoon category fishery 
since BFT could be harvested under the Harpoon category quota in areas 
outside the New England area, thereby reducing the quota available to 
the traditional fishery. In addition, the status quo may encourage the 
development of, and investment in, a southern area Harpoon category 
fishery, which has not yet occurred.
    Alternative two is designed to maintain the Harpoon category quota 
for the traditional New England fishery and impact only the Harpoon 
category vessels. This alternative is selected as it is expected to 
provide positive impacts for the traditional New England Harpoon 
category fishery since it would close the fishery near the time period 
when BFT migrate out of the New England area. Negative impacts to 
southern area fishermen interested in participating in the Harpoon 
category fishery under this alternative are expected to be negligible 
since there had been no BFT landings against the Harpoon category quota 
in such area prior to 2002, few vessels have participated in the 
Harpoon category fishery in the south Atlantic since that time, and 
there has been little investment in gear and equipment in a Harpoon 
category fishery outside of the New England area. Finally, vessel 
owners/operators that fish outside the traditional New England area 
that wish to use a harpoon as a primary gear type would still be 
allowed to do so under the General category permit, albeit under 
General category retention limits and restrictions.
    The third alternative is also designed to affect only Harpoon 
category vessels and maintain the Harpoon category quota for the 
traditional New England fishery. Unlike the status quo and alternative 
two, it could provide additional positive impacts to the traditional 
New England Harpoon category fishery since it would more closely track 
the BFT fall migration, and could eliminate the landing of any BFT 
under the Harpoon category quota outside of the area of the traditional 
fishery. However it could be difficult to administer due to the 
difficulty in tracking the BFT migration and may lead to uncertainty 
for members within the Harpoon category regarding closure of the 
fishery. Alternative three also would have negligible impacts on 
southern area fishermen, for the same reasons noted above for 
alternative two.
    The General category season is scheduled to end on December 31 of 
each fishing year or when the General category quota is harvested, 
whichever comes first. A winter fishery for large medium and giant BFT 
has existed in the south Atlantic since the early 1990s, and when quota 
is available, fish have been harvested under the General category. Two 
alternatives (in addition to the no action/status quo alternative) were 
considered that would both extend the General category season to 
provide southern Atlantic fishermen with more access to the General 
category BFT quota in the late fall and winter. Under the status quo 
the General category season would close on December 31 regardless of 
whether the full allocated quota has been attained or not. Southern 
area fishermen have been adversely affected this closure date as it 
occurs when BFT appear off southern states and commercial fishing 
opportunities

[[Page 74510]]

have been denied to them after December 31.
    Alternative two (selected) would move the General category end date 
to January 31 of each fishing year. Overall economic impacts of this 
alternative to the General category BFT fishery as a whole would be 
neutral since the same overall amount of the General category quota 
would be landed and the value of the General category quota would not 
be changed. General category fishermen in the northern region may 
experience negative economic and social impacts, when compared to the 
status quo, since any unharvested quota as of December 31 would 
otherwise be rolled over to the following year. General category 
fishermen in the southern region would be positively affected by this 
alternative as it would allow greater utilization of existing 
investment in gear and equipment if quota was still available for 
harvest after December 31, and since BFT are usually available in the 
southern region during the end of the calender year due to the fall 
migration from the north.
    Under alternative three, extending the General category end date to 
May 31, overall impacts would again be neutral but northern General 
category fishermen could be more negatively affected and southern 
region fishermen could be more positively affected, due to the BFT fall 
migration, and depending on the amount of quota that remains after the 
season would have usually been closed. Alternative two was the 
alternative selected since it minimizes negative impacts to northern 
area fishermen by providing a more limited southern fishery extension 
and provides positive impacts for southern area fishermen by allowing 
further utilization of gear and equipment previously invested in a 
southern area large medium and giant BFT fishery. Negative impacts on 
northern area fishermen could be slightly mitigated if they are willing 
to travel south late in the season, provided there is reciprocity among 
different states' permitting costs and out-of-state fishermen are 
allowed under a coastal state's regulations to participate in a BFT 
commercial fishery, regardless of whether it occurs in federal or state 
waters.
    As discussed above, the Purse seine and Harpoon categories have 
recently experienced difficulties in landing the full annual quota 
provided for each of these categories with the result of decreased 
annual gross revenues. Each alternative considered would modify the 
tolerance limits for landing large medium BFT and was analyzed to 
determine the increased likelihood of harvesting the respective quotas 
in the designated time frames while balancing any ecological impacts of 
increased fishing mortality against the potential to reduce dead 
discards. As NMFS currently has insufficient information on discards, 
data will be collected through previously approved information 
collection programs (i.e., vessel logbooks and/or observers) to 
determine the effect of adjusting tolerance limits for large medium BFT 
in the Harpoon and Purse seine categories on mortality of pre-spawning 
fish and the ability of these categories to harvest allocated quotas.
    Alternative one, the no action/status quo alternative, has had 
negative impacts with a resulting decrease in optimum yield for both 
the Purse seine and Harpoon categories since they have been unable to 
land and sell the full allotted quota. Alternatives two, three, and 
four, all related solely to the Purse seine category, were all designed 
to increase access to large medium BFT for the Purse seine category and 
to increase the possibility of full quota attainment while balancing 
the need to control overall mortality and increased pressure on the 
large medium size class of BFT. Alternative two removes the 10-percent 
annual tolerance limit and maintains the 15-percent trip limit which 
could increase landings and gross revenue for the Purse seine category. 
Alternative three (selected), which eliminates the trip limit and 
establishes the annual limit at 15 percent, would provide access to the 
same total amount of landings as alternative two, but may also increase 
net revenues by increasing flexibility in meeting the annual tolerance 
limit. Alternative four could provide the greatest increase in access 
by decreasing the minimum size to 73 inches (185 cm) for the Purse 
seine category; however, it was not selected because of the associated 
potential negative ecological impact of a relatively large increase in 
overall BFT mortality within the large medium size class of BFT.
    Alternatives five and six, related solely to the Harpoon category, 
were designed to increase access to large medium BFT for the Harpoon 
category and, similar to considerations with the Purse seine category, 
balance the attainment of the quota allocation with concerns regarding 
an increase in mortality and negative ecological impacts. Alternative 
five would allow an increase in the daily retention limit for the 
Harpoon category from the status quo of one large medium BFT per day to 
two large medium BFT per day, and was selected since it is expected to 
provide an acceptable balance between positive economic effects and a 
modest increase in mortality of large medium BFT. Large medium BFT 
mortality is not expected to increase significantly under this 
alternative because of a harpooner's ability to visually determine the 
size class of BFT prior to throwing a harpoon. Alternative six would 
allow full access to the large medium size class by reducing the 
minimum size limit for the Harpoon category to 73 inches (185 cm), and 
would provide the most positive economic impacts. However, it was not 
chosen because of the potential negative ecological impact of a 
relatively large increase in mortality on large medium fish.
    Finally, alternative seven, unlike all other alternatives, would 
eliminate the tolerance for large medium size class and raise the 
minimum size of BFT to 81 inches (206 cm) in both the Purse seine and 
Harpoon categories. This alternative was considered due to the 
potential positive ecological impacts that would enhance western 
Atlantic BFT stock rebuilding, but would likely have negative economic 
and social impacts and further impede full attainment of quota and 
optimum yield. By narrowing the universe of fish available for harvest 
to just the giant size class, it would be more difficult for these 
categories to harvest the allocated quotas, thus the original objective 
for this action would be contradicted.
    This final rule does not duplicate, overlap, or conflict with any 
other Federal rules.
    This rule does not contain any new information collection, 
reporting, recordkeeping or other compliance requirements. Logbook and 
observer data collection schemes were proposed and made final in the 
HMS Fishery Management Plan issued in 1999 and the Office of Management 
and Budget approved the information collections as part of that 
rulemaking process. Both the Purse Seine and Harpoon fisheries for BFT 
were included in the approved information collection requests for these 
programs. NMFS has faced resource constraints in implementing the 
approved information collections and has tried to reduce costs and 
avoid duplication by examining all possible avenues of accessing data 
on catch, effort and discards in these fisheries. In this final rule, 
NMFS balanced requirements to reduce dead discards against the 
requirements to limit mortality on pre-spawning fish and provide a 
reasonable opportunity for U.S. fishermen to harvest the quotas 
allocated to each category under the international rebuilding program 
for BFT and the HMS FMP allocation sector scheme. NMFS addressed this 
issue by adjusting the tolerance limits for

[[Page 74511]]

landing large medium BFT for both the Harpoon and Purse Seine 
categories. In developing this rule, it has become apparent that 
additional information on the size distribution of fish encountered/
caught (as opposed to fish landed) is needed, and NMFS plans on 
obtaining this information through the previously approved logbook and 
observer programs.
    NMFS prepared an EA for this final rule, and the AA has concluded 
that there would be no significant impact on the human environment if 
this final rule were implemented. The EA presents analyses of the 
anticipated impacts of these regulations and the alternatives 
considered. A copy of the EA and other analytical documents prepared 
for this final rule, are available from NMFS (see ADDRESSES).
    This rule has been determined to be not significant for purposes of 
Executive Order 12866.
    On September 7, 2000, NMFS reinitiated formal consultation for all 
HMS commercial fisheries under section 7 of the Endangered Species Act 
(ESA). 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. NMFS is currently implementing 
the reasonable and prudent alternative required by the BiOp. This final 
rule would not have any additional impact on sea turtles as these 
actions do not affect the use of pelagic longline gear, would not 
likely increase or decrease pelagic longline effort, nor are they 
expected to shift effort into other fishing areas. No irreversible or 
irretrievable commitments of resources are expected from this final 
action that would have the effect of foreclosing 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. On 
November 10, 2003, the proposed regulations were submitted to the 
responsible state agencies for their review under Section 307 of the 
Coastal Zone Management Act. As of November 28, 2003, NMFS has received 
3 responses, all concurring with NMFS' consistency determination. 
Because no responses were received from the other states, their 
concurrence is presumed.
    The area in which this final action is planned has been identified 
as an 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 HMS Management Division of the Office of Sustainable 
Fisheries at NMFS. Based on the 1999 Fishery Management Plan for 
Atlantic Tunas, Swordfish, and Sharks, which analyzed the impacts of 
purse seine, harpoon, and rod and reel gear on EFH, this action is not 
anticipated to have any adverse impacts to EFH.

List of Subjects in 50 CFR Part 635

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

    Dated:December 19, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, 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

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

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

0
2. In Sec.  635.23, paragraphs (d) and (e)(1) are revised to read as 
follows:


Sec.  635.23  Retention limits for BFT.

* * * * *
    (d) Harpoon category. Persons aboard a vessel permitted in the 
Atlantic Tunas Harpoon category may retain, possess, or land an 
unlimited number of giant BFT per day. An incidental catch of only two 
large medium BFT per vessel per day may be retained, possessed, or 
landed.
    (e) * * *
    (1) May retain, possess, land, or sell large medium BFT in amounts 
not exceeding 15 percent, by weight, of the total amount of giant BFT 
landed during that fishing year.
* * * * *

0
3. In Sec.  635.27, paragraphs (a)(1)(i)(C), (a)(4)(i), and (a)(5) are 
revised to read as follows:


Sec.  635.27  Quotas.

    (a) * * *
    (1) * * *
    (i) * * *
    (C) October 1 through January 31 - 10 percent.
* * * * *
    (4) * * *
    (i) The total amount of large medium and giant BFT that may be 
caught, retained, possessed, or landed by vessels for which Purse Seine 
category Atlantic Tunas permits have been issued is 18.6 percent of the 
overall U.S. BFT landings quota. The directed purse seine fishery for 
BFT commences on July 15 of each year unless NMFS takes action to delay 
the season start date. Based on cumulative and projected landings in 
other commercial fishing categories, and the potential for gear 
conflicts on the fishing grounds or market impacts due to oversupply, 
NMFS may delay the BFT purse seine season start date from July 15 to no 
later than August 15 by filing an adjustment with the Office of the 
Federal Register for publication. In no case shall such adjustment be 
filed less than 14 calendar days prior to July 15.
* * * * *
    (5) Harpoon category quota. The total amount of large medium and 
giant BFT that may be caught, retained, possessed, landed, or sold by 
vessels for which Harpoon category Atlantic Tunas permits have been 
issued is 3.9 percent of the overall U.S. BFT quota. The Harpoon 
category fishery closes on November 15 each year.
* * * * *

0
4. In Sec.  635.28 paragraph (a)(2) is revised to read as follows:


Sec.  635.28  Closures.

    (a) * * *
    (2) From the commencement date of the directed BFT purse seine 
fishery, as provided under Sec.  635.27(a)(4)(i), through December 31, 
the owner or operator of a vessel that has been allocated a portion of 
the Purse Seine category quota under Sec.  635.27(a)(4) may fish for 
BFT. Such vessel may be used to fish for yellowfin, bigeye, albacore, 
or skipjack tuna at any time, however, landings of BFT taken incidental 
to fisheries targeting other Atlantic tunas or in any fishery in which 
BFT might be caught will be deducted from the individual vessel's quota 
for the following BFT fishing season. Upon reaching its individual 
vessel allocation of BFT, the vessel may not participate in a directed 
purse seine fishery for Atlantic tunas or in any fishery in which BFT 
might be caught for the remainder of the fishing year.
* * * * *

0
5. In Sec.  635.71 paragraphs (b)(10) and (b)(17) are revised to read 
as follows:

[[Page 74512]]

Sec.  635.71  Prohibitions.

* * * * *
    (b) * * *
    (10) Fish for or catch any Atlantic tunas in a directed fishery 
with purse seine nets if there is no remaining BFT allocation made 
under Sec.  635.27 (a)(4).
* * * * *
    (17) As a vessel with a Purse Seine category Atlantic tunas permit, 
catch, possess, retain, or land BFT in excess of its allocation of the 
Purse Seine category quota, or fish for BFT under that allocation prior 
to the commencement date of the directed BFT purse seine fishery, as 
specified in Sec.  635.27(a)(4).
* * * * *
[FR Doc. 03-31758 Filed 12-23-03; 8:45 am]
BILLING CODE 3510-22-S