[Federal Register Volume 70, Number 108 (Tuesday, June 7, 2005)]
[Rules and Regulations]
[Pages 33033-33039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11208]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 050317076-5145-02; I.D. 030405C]
RIN 0648-AT01


Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Quota 
Specifications and General Category Effort Controls

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS announces the final initial 2005 fishing year 
specifications for the Atlantic bluefin tuna (BFT) fishery to set BFT 
quotas for each of the established domestic fishing categories and to 
set General category effort controls. This action is necessary to 
implement recommendations of the International Commission for the 
Conservation of Atlantic Tunas (ICCAT), as required by the Atlantic 
Tunas Convention Act (ATCA), and to achieve domestic management 
objectives under the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act).

DATES: The final rule is effective July 7, 2005 through May 31, 2006.

ADDRESSES: Supporting documents, including the environmental assessment 
(EA), final Regulatory Flexibility Act analysis, and regulatory impact 
review, are available by sending your request to Dianne Stephan, Highly 
Migratory Species (HMS) Management Division, Office of Sustainable 
Fisheries (F/SF1), NMFS, One Blackburn Dr., Gloucester, MA 01930; Fax: 
978-281-9340. These documents are also available from the HMS 
Management Division Web site at http://www.nmfs.noaa.gov/sfa/hmspg.html 
or at the Federal e-Rulemaking Portal: http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Dianne Stephan at (978) 281-9260 or 
email [email protected].

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 promulgate regulations, as may be 
necessary and appropriate, to implement ICCAT recommendations. The 
authority to issue regulations under

[[Page 33034]]

the Magnuson-Stevens Act and ATCA has been delegated from the Secretary 
to the Assistant Administrator for Fisheries, NOAA (AA).

Background

    Background information about the need for the final initial BFT 
quota specifications and General category effort controls was provided 
in the preamble to the proposed rule (70 FR 14630, March 23, 2005), and 
is not repeated here. By this rule, NMFS announces the final initial 
BFT quota specifications and General category effort controls. In the 
proposed rule, comments were specifically requested on options to 
remain below the ICCAT recommended school BFT provision implemented at 
50 CFR 635.27(a)(2) which requires that the proportion of school 
landings to overall U.S. landings remain below a four-year average of 
eight-percent. The final rule attempts to balance concerns regarding 
the eight-percent provision with requests for additional quota, higher 
retention limits, and longer seasons. NMFS will allocate the full 
proposed school BFT quota for the 2005 fishing year, and make inseason 
adjustments as necessary. In addition, NMFS may implement inseason 
adjustments to retention limits and seasons as discussed under the 
Comments and Responses section (Comment 4) below. Several comments 
regarding early retention limits and a late season Southern area 
fishery for the General category were also received, and are addressed 
under Comment 5.

Changes From Proposed Rule

    Updated landings estimates for the 2004 fishing year were available 
for several BFT fishery categories, which affected quota allocations 
for 2005 in the Reserve and Longline categories, and are incorporated 
in this rule. Total additional landings of 36.7 mt in the Longline 
category occurred since the landings for the proposed rule were 
analyzed. These landings occurred in the subcategories as follows: 2.7 
mt additional landings in the north (outside of the Northeast Distant 
area (NED)) and 34.0 mt additional in the south. The quota available 
for the 2005 fishing year in each of the Longline subcategories is 51.6 
mt in the north (outside the NED), 64.7 mt in the NED, and 72.1 mt in 
the south. In addition, new information regarding the dead discards in 
the 2004 longline fishery showed that the Longline category had 
exceeded the 68 mt dead discard allowance by 3.8 mt, according to 
preliminary estimates for calendar year (CY) 2004. Pursuant to 50 CFR 
635.27(a)(9)(iv), any dead discard overage must be subtracted from the 
category in which it occurred. Thus, the overall Longline category 
quota is reduced by 40.5 mt (36.7 mt + 3.8 mt) to a total of 188.4 mt 
and the Reserve category is reduced by 7.8 mt to account for the 
previously estimated dead discard underage for 2004.
    Data became available since analyses for the proposed rule showing 
additional landings in the Angling category of 5.7 mt for the 2004 
fishing year. Since data available for the proposed rule indicated that 
the Angling category had over-harvested the 2004 quota, the Reserve 
category for the 2005 fishing year was reduced by 5.7 mt in this final 
rule to account for the additional Angling category landings.

2005 Final Initial Quota Specifications

    In accordance with the 2002 ICCAT quota recommendation, the ICCAT 
recommendation regarding the dead discard allowance, the 1999 HMS 
fishery management plan (1999 FMP) percentage shares for each of the 
domestic categories, and regulations regarding annual adjustments at 
Sec.  635.27(a)(9)(ii), NMFS establishes final initial quota 
specifications for the 2005 fishing year as follows: General category--
908.3 mt; Harpoon category--90.0 mt; Purse Seine category--530.0 mt; 
Angling category--288.6 mt; Longline category--188.4 mt; and Trap 
category--3.8 mt. Additionally, 45.9 mt are allocated to the Reserve 
category for inseason adjustments, including potentially providing for 
a late season General category fishery, or to cover scientific research 
collection and potential overharvest in any category except the Purse 
Seine category.
    Based on the above initial specifications, the Angling category 
quota of 288.6 mt is further subdivided as follows: School BFT 117.2-
mt, with 45.1 mt to the northern area (north of 39[deg]18' N. 
latitude), 50.4 mt to the southern area (south of 39[deg]18' N. 
latitude), plus 21.7 mt held in reserve; large school/small medium BFT 
164.8-mt, with 77.8 mt to the northern area and 87.0 mt to the southern 
area; and large medium/giant BFT-6.6 mt, with 2.2 mt to the northern 
area and 4.4 mt to the southern area.
    The 2002 ICCAT recommendation includes an annual 25 mt set-aside 
quota to account for bycatch of BFT related to directed longline 
fisheries in the NED. This set-aside quota is in addition to the 
overall incidental longline quota to be subdivided in accordance to the 
North/South allocation percentages mentioned below. Thus, the Longline 
category quota of 188.4 mt is subdivided as follows: 51.6 mt to pelagic 
longline vessels landing BFT north of 31[deg] N. latitude and 72.1 mt 
to pelagic longline vessels landing BFT south of 31[deg] N. latitude, 
and 64.7 mt (39.7 mt from 2004 + 25.0 mt for 2005) to account for 
bycatch of BFT related to directed pelagic longline fisheries in the 
NED.

General Category Effort Controls

    For the last several years, NMFS has implemented General category 
time-period subquotas to increase the likelihood that fishing would 
continue throughout the entire General category season. The subquotas 
are consistent with the objectives of the 1999 FMP and are designed to 
address concerns regarding the allocation of fishing opportunities, to 
assist with distribution and achievement of optimum yield, to allow for 
a late season fishery, and to improve market conditions and scientific 
monitoring.
    The regulations implementing the 1999 FMP divide the annual General 
category quota into three time-period subquotas as follows: 60 percent 
for June-August, 30 percent for September, and 10 percent for October-
January. These percentages would be applied to the adjusted 2005 
coastwide quota for the General category of 908.3 mt, minus 10.0 mt 
reserved for the New York Bight set-aside fishery. Therefore, of the 
available 898.3 mt coastwide quota, 539.0 mt would be available in the 
period beginning June 1 and ending August 31, 2005; 269.5 mt would be 
available in the period beginning September 1 and ending September 30, 
2005; and 89.8 mt would be available in the period beginning October 1, 
2005, and ending January 31, 2006.
    In addition to time-period subquotas, NMFS also has implemented 
General category restricted fishing days (RFDs) to extend the General 
category fishing season. The RFDs are designed to address the same 
issues addressed by time-period subquotas and provide additional fine 
scale inseason flexibility. For the 2005 fishing year, NMFS establishes 
a series of solid blocks of RFDs to extend the General category for as 
long as possible through the October through January time-period.
    Therefore, persons aboard vessels permitted in the General category 
are prohibited from fishing, including catch-and-release and tag-and-
release, for BFT of all sizes on the following days while the fishery 
is open: all Fridays, Saturdays, and Sundays from November 18, 2005, 
through January 31, 2006, and Thursday, November 24, 2005, inclusive. 
These RFDs are implemented to improve distribution of fishing 
opportunities during the late

[[Page 33035]]

season without increasing BFT mortality.

Comments and Responses

    Comment 1: Many commenters supported the quota allocation in the 
proposed rule and the timing of the proposed rule and comment period 
relative to the start of the BFT season. One commenter stated that each 
category should be responsible for its overages and underages in future 
years.
    Response: The final rule implements the proposed quota allocation, 
with minor modifications to account for minor additional recreational 
landings and minimal landings under experimental fishing permits, and a 
minor adjustment for dead discards. NMFS intends to publish annual 
specifications with enough notice and sufficient information so 
constituents can plan for the BFT fishing year. When setting annual 
specifications, NMFS strives to ensure each category's overages and 
underages are applied within the same category. However, transfer of 
quota among categories is provided for in regulations at 50 CFR 
635.27(a)(8). In general, NMFS may choose to transfer quota among 
categories to maximize fishing opportunities and help achieve optimum 
yield in BFT fisheries, while this valuable stock undergoes rebuilding.
    Comment 2: Some commenters supported the proposed RFDS while others 
did not. The commenters that supported the RFDs recognized that the 
RFDs would serve several purposes, including maximizing the market 
value of the catch by distributing the available quota over a longer 
time period and allowing the charter/headboat and recreational fleets 
the opportunity to fish without the presence of the commercial fleet. 
Commenters who opposed the RFDs noted that the RFDs would disadvantage 
non-resident commercial fishermen since they may have to pay for 
lodging or docking during non-fishing days and that some General 
category fishermen are only able to fish on the weekends. Commenters 
opposed to the RFDs also stated that waiving RFDs during previous 
fisheries had occasionally been untimely, and that weather would serve 
to moderate the landings for the last subperiod. A commenter also asked 
that the RFD for Thanksgiving be removed so that fishermen could have 
the option to fish.
    Response: The final rule maintains the following schedule of RFDs, 
as proposed: Fridays, Saturdays, and Sundays between November 18 and 
January 31 and Thursday, November 24. The purpose of the RFDs is to 
assist with distribution and achievement of optimum yield, and to 
extend the late season General category fishery. NMFS recognizes that 
three day consecutive RFDs could negatively impact non-resident 
fishermen. The intent of the configuration of the RFDs is to separate 
the commercial and recreational fisheries temporally (i.e. General 
category fishes Monday through Thursday, Angling category fishes Friday 
through Sunday) in order to improve conditions on the fishing grounds 
for both fisheries. Market value of BFT is expected to increase as a 
result of spreading the fishery out over the late season, and could 
mitigate any potential extra costs of non-resident fishermen for boat 
dockage and overnight fees. General category fishermen with situations 
such as other full time jobs on Monday through Friday may need to make 
other arrangements such as taking annual leave in order to fish during 
weekdays.
    NMFS recognizes that the weather is unpredictable during this time 
period of the fishery (i.e. November 18 through January 31), and that 
poor weather conditions may limit participation without the need for 
additional RFDs during this part of the season. Should BFT landings and 
catch rates during the late season fishery merit the waiving of RFDs, 
under 50 CFR 635.23(a)(4), NMFS may adjust the daily retention limits 
with a minimum three day notification to fishermen.
    Thanksgiving (November 24, 2005) and other holidays during November 
through January for 2005-6 are maintained as RFDs to provide fishermen 
the opportunity to spend holidays with family or friends without 
disadvantaging them in the fishery. Providing U.S. holidays (i.e. 
November 24, December 24-25, December 31 and January 1) as RFDs is a 
new approach for management of the General category fishery, and may be 
re-evaluated in future years based on experience gained from this 
year's fishery. In this year's fishery, holidays other than 
Thanksgiving happen to occur on Friday, Saturday, or Sunday, which have 
been established as RFDs for other purposes. Thus, the evaluation of 
providing holidays will rest on the experience of Thanksgiving day for 
2005. As discussed above, RFDs can be waived as the season progresses 
if warranted by conditions in the fishery.
    Comment 3: Several commenters stated a need to change the way BFT 
recreational landings are counted. Commenters stated that landings 
estimates in recent years were much higher than what seemed to be more 
reasonable estimates from prior years. Several commenters requested 
that a tail-tag program similar to the landings programs in place in 
North Carolina and Maryland be implemented on a coastwide basis. A 
commenter noted that real-time recreational landings estimates are 
necessary for inseason adjustments to keep the recreational fishery 
open during the entire season and from exceeding its quota. Similar 
comments regarding the need for improvement to HMS recreational 
landings statistics were presented by the HMS Advisory Panel during a 
March 2005 meeting.
    Response: NMFS collects recreational landings data for HMS through 
the following three programs: (1) Large Pelagics Survey (LPS); (2) 
Automated Landing Reporting System (ALRS), and (3) comprehensive 
tagging of recreationally landed BFT in the states of Maryland and 
North Carolina. Each of these programs has limitations, and none of 
them provides real-time data on a coastwide basis, but they are the 
best data available. NMFS considers improving recreational landings 
data for HMS to be a high priority, and continues to investigate 
options for improving the reliability and utility of these data. 
Specifically, an ad hoc committee of NMFS scientists was formed to 
review the 2002 and 2003 methods and estimates of U.S. recreational 
fishery landing of BFT, white marlin, and blue marlin reported by NMFS 
to ICCAT to verify that the reported estimates were the most accurate 
that could be made with available data. A report stating the 
Committee's findings was released in December 2004. Based on the 
findings of this report, and consultations with the contractor that 
performs the LPS, methods of fish measurement and length/weight 
conversion will be further scrutinized. Proposals to implement an 
Atlantic-wide tail-tag monitoring program remain under discussion among 
coastal states and within NMFS and include issues regarding specifics 
of logistics, implementation, and establishment of partnerships with 
coastal states.
    Comment 4: Many comments regarding the 2005 recreational season 
were received; most in response to the agency's request for comments on 
addressing ICCAT's eight-percent provision for school size BFT as set 
forth in 50 CFR 635.27(a)(2). In addition, a joint letter from several 
recreational advocacy groups outlined specific bag limits and season 
requests for the 2005 recreational fishing year, and several other 
commenters requested that sufficient quota be available for the

[[Page 33036]]

southern area recreational fishery, and that it be extended in time 
beyond that available in previous years. The comments regarding the 
eight-percent tolerance provision received included support of a limit 
of one school size BFT per vessel per day and support of a one fish 
(any size category) limit per vessel per day. Shifting some of the 
quota into the large school/small medium subquota was supported by one 
commenter but not by another because of concern over increasing 
pressure on spawning fish. Several commenters suggested harvesting the 
entire school allotment for the next two years during 2005. Several 
other commenters expressed concern over postponing action to limit 
school size catches until 2006 and any other actions that could 
jeopardize a school size fishery in 2006. A commenter opposed 
completely prohibiting the catch of school size BFT in 2005 since it 
could negatively impact the charter industry. One commenter proposed 
use of a bonus tag system for additional harvest for vessels with a 
bonus tag and another commenter suggested that the recreational fishery 
be closed after October.
    Response: To balance concerns regarding the eight-percent ICCAT 
provision with requests for more quota, higher retention limits and 
longer seasons, and to ensure that the Angling category does not exceed 
the school size subquota set forth in 50 CFR 635.27(a)(2), the final 
action maintains the proposed allocation of 117.2 mt in the school 
subquota. NMFS is considering several scenarios for season openings/
closings and potential adjustments to Angling category retention 
limits. However, inseason establishment of retention limits and seasons 
per 50 CFR 635.23(b)(3) and 635.28(a)(3), respectively, takes into 
consideration information that is only available as the season 
progresses, including but not limited to catch rates and the 
availability of fish on the fishing grounds, and are accomplished 
during the season via inseason actions. Potential inseason adjustments 
to retention limits and seasons are being considered by NMFS, and are 
provided here to assist for constituent planning purposes. However, 
these adjustments are only potentially being considered for 
implementation, and may be adjusted based on incoming data as the 
season progresses. Retention limits under consideration include raised 
retention limits for the CHB fishery early in the season as well as 
during the month of September, and access for all recreational vessels 
to the large school/small medium size classes (47 up to 73 inches) from 
October 1, 2005 through March 15, 2006, after which the fishery may 
close. The limits under consideration would be in addition to the one 
trophy fish per year for Angling category vessels. The intent of this 
planned recreational season is to provide fishermen recreational 
opportunities throughout the geographic range of the fish and for the 
season to extend slightly longer than the average fishery for recent 
prior years. Establishing a bonus tag program is outside the scope of 
this action and may be considered as part of the ongoing research into 
the recreational data programs.
    Comment 5: Several individuals commented on management of the 
General category, including requests from several commenters that a 
multiple fish retention limit be established for the start of the 2005 
season. A commenter requested that any underage from the June through 
August subquota not be rolled over but moved to the reserve category 
for harvest by the southern area fishery. Several commenters requested 
that 150 mt be available for the southern area fishery and one 
commenter asked that 10.5 percent of any quota transferred to the 
General category from another category during an inseason action be 
moved into the third subperiod quota. Another commenter requested that 
the subperiod percentages in the General category remain the same. One 
commenter stated that the southern area fishery should be closed since 
it appears to be negatively impacting the traditional New England 
fishery.
    Response: Similar to the Angling category season and retention 
limits discussed above in the previous response, seasonal management of 
the General category takes into account time-sensitive information such 
as current catch rates, among other information, and retention limits 
are established with inseason actions per 50 CFR 635.23(a)(4), 
respectively. Potential inseason adjustments to retention limits are 
being considered by NMFS, and are provided here to assist for 
constituent planning purposes. However, these adjustments are only 
potentially being considered for implementation, and may be adjusted 
based on incoming data as the season progresses. NMFS is considering 
setting a two fish retention limit for the General category early in 
the season and adjusting this to one fish per vessel per day after 
September 1. The increased retention limit early in the season is being 
considered in expectation of low landings rates during June through 
August and the availability of a large amount of quota for the fishing 
year. Should catch rates accelerate, NMFS has the ability to 
responsively adjust the retention limit in order to ensure availability 
of quota throughout the range of the fishery. Unused quota in General 
category time periods is traditionally rolled over from one time period 
to the next; however, 50 CFR 635.27(a)(8) does allow the transfer of 
quotas among subcategories and Sec.  635.27(a)(7) identifies specific 
criteria that must be considered. Any actual transfers between 
subcategories or categories may be addressed in subsequent actions. 
NMFS continues to be aware of the interests of Southern area fishermen, 
particularly off North Carolina, for some limited but fixed General 
category quota allocation. In the past several years, NMFS has 
endeavored and succeeded in meeting this request and will continue to 
do so in 2005. NMFS is considering several alternatives for 
restructuring General category subquotas in the consolidated HMS FMP 
(68 FR 40907, July 9, 2003) currently under development to provide a 
long-term, codified solution to quota allocation for the December to 
January timeframe.
    Comment 6: Several commenters requested that more notice be given 
for opening and closing of seasons so that participants and other 
affected businesses (e.g., tackle shops) have more planning 
opportunities. One commenter requested a fixed opening date for the 
southern area fishery. Another commenter requested the General category 
fishery be kept open until the entire quota is harvested.
    Response: NMFS inseason management of the BFT fishery attempts to 
balance the constituents' need to plan business affairs and 
recreational activities with maximizing responsiveness to the changing 
availability of fish stocks, changes in regional fishery participation, 
and enforcement of regulations and administrative requirements. For 
example, establishing fixed opening and/or closing dates provides a 
certain degree of predictability; however, the availability of BFT on 
the fishing grounds is not predictable. In addition, daily landings of 
fisheries that vary based on fleet size, weather, and fish availability 
are unpredictable in nature, and a fixed closing date could result in 
quota overages or underages. NMFS will continue to strive to provide 
sufficient notification of season openings, closings, and retention 
limit adjustments while maximizing fishing opportunities within the 
bounds of the established BFT fishery management program.

[[Page 33037]]

    Comment 7: Several commenters requested that NMFS investigate the 
effect of the herring fishery and the abundance of dogfish on the BFT 
catch and fishery in New England.
    Response: NMFS recognizes the importance of considering ecosystem 
interactions in fishery management planning, and addresses ecosystem 
management as one of the goals of the NMFS Strategic Plan. The agency 
continues to work toward integrating an ecosystem approach into fishery 
management practices. Currently, Atlantic herring is managed under a 
separate FMP by the New England Fishery Management Council (NEFMC) and 
spiny dogfish is managed by the Mid-Atlantic Fishery Management Council 
(MAFMC). The Atlantic herring FMP is being amended, and a public 
hearing document is expected to be available in the near future. An 
amendment to the spiny dogfish FMP was initiated several years ago and 
is currently under development. A framework action to increase the time 
period for fishery specifications is currently underway, by the NEFMC 
and MAFMC jointly. Little information is available regarding the 
interaction between these three fisheries. As council and NMFS FMPs are 
amended, NMFS will continue to evaluate the information available 
regarding this issue.
    Comment 8: Several commenters opposed establishing two-tiered 
retention limits that allow charter/headboat operators to retain more 
fish than other Angling category vessels. Another commenter supported a 
higher retention limit for charter/headboats during the fall season of 
one fish for every four to six passengers. One commenter suggested that 
charter/headboat limits vary with the size of the fish (e.g., keep a 
greater number of smaller fish and fewer large fish).
    Response: Angling category and CHB retention limits for the 2005 
fishing year is discussed in the response to Comment 4. Establishment 
of retention limits is regularly addressed by inseason actions during 
the fishing year. NMFS regulations at 50 CFR 635.23(b)(3) explicitly 
provide for retention limits within the Angling category based upon 
vessel type, including differentiation of bag limits for private, 
charterboat and headboat vessels. Differentiation has been used in past 
actions based on the different and unique practices of each respective 
vessel type.
    Comment 9: One individual stated that there should be more public 
meetings where fishermen can provide input, and that anecdotal 
information should be better incorporated into the management process. 
Several commenters were dissatisfied with the locations of the public 
hearings, and stated that none were available to recreational fishermen 
between Gloucester, MA and Morehead City, NC. Another commenter stated 
that commercial fishermen should be excluded from the fishery 
management process.
    Response: The Magnuson-Stevens Act and ATCA specifically provide 
for the involvement of the public and fishery participants (commercial 
and recreational) in the Federal fishery management process. NMFS 
provided several opportunities for commenting on this rulemaking, 
including publications requesting comments at the proposed rule state 
and a total of two public hearings on April 8 and April 11, 2005. 
Rulemaking background documents were made available by request and on 
several internet websites. Public hearings are scheduled based on 
anticipated attendance and distribution of user groups, and may be 
limited by the constraints of both time and funding. NMFS is interested 
in receiving feedback about potential locations for future public 
hearings relative to this topic. Please see the Addresses section for 
suggestion submissions.
    Comment 10: One commenter requested that the purse seine category 
be eliminated. Several commenters requested that the size limit for the 
General category be reduced, while one commenter requested that it be 
increased. A commenter requested that the minimum size in the young 
school size category be increased, and that the commercial sector quota 
be cut by five percent across the board. Another commenter requested 
that BFT quotas be cut by 50 percent this year and 10 percent per year 
on a continuing basis. The commenter opposed the allowance of 68 mt of 
dead discards in the BFT fishery,
    Response: This final rule is designed to provide for the fair and 
efficient harvest of the BFT quota that is allocated to the United 
States by ICCAT and is consistent with ATCA and the Magnuson-Stevens 
Act. This action establishes BFT quotas based on a 2002 ICCAT 
recommendation, which includes a dead discard allowance, subdivided 
among the U.S. domestic fishing fleet categories according to 
percentages established by the 1999 FMP and implemented in NMFS 
regulations at 50 CFR 635.27(a). The remaining requested actions are 
all outside the scope of this action and would require changes to the 
1999 FMP, implementing regulations, and/or ICCAT recommendations. These 
issues are not currently being considered in the development of the 
amendment to the 1999 FMP.
    Comment 11: Several commenters indicated that NMFS is only 
concerned about management of the commercial fishery. Another commenter 
believed that recreational fishermen should be allowed to sell fish.
    Response: The Magnuson-Stevens Act, 1999 FMP, and implementing 
regulations all explicitly recognize the value of both commercial and 
recreational fisheries, and identify the promotion of domestic 
commercial and recreational fisheries, under sound conservation and 
management principles. This final rule is consistent with all 
applicable law including the Magnuson-Stevens Act, and the 1999 FMP. 
Recreational anglers are prohibited from selling BFT subject to NMFS' 
intent to manage the commercial and recreational sectors of the BFT 
fishery under different objectives, as indicated in the 1999 FMP. 
Implementing regulations at 50 CFR 635.4(d)(2) strictly prohibit the 
sale of Atlantic HMS caught on board vessels holding an HMS Angling 
permit. The General category fishery is an open-access commercial 
fishery, and permits in this category are available to any fisherman 
that submits a complete application package. Allowing recreational 
fishermen to sell fish is outside the scope of this rulemaking.

Classification

    These final specifications and General category effort controls are 
published under the authority of the Magnuson-Stevens Act and ATCA. The 
AA has determined that the regulations contained in this rule are 
necessary to implement the recommendations of ICCAT and to manage the 
domestic Atlantic HMS fisheries, and are consistent with the Magnuson-
Stevens Act and National Standards.
    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) for 
the proposed rule. No comments were received on the IRFA concerning the 
economic impact of this final rule that would change the conclusions of 
the IRFA. One comment stated that the RFDs in the proposed rule could 
negatively impact non-resident fishermen. As discussed in the IRFA and 
Final Regulatory Flexibility Analysis (FRFA), this potential impact 
could be mitigated by the potential increased value of landings 
dispersed over a greater time period as a result of the RFDs. A summary 
of the FRFA is provided below.

[[Page 33038]]

    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. In order to do this, NMFS 
estimated the average impact that the selected alternative to establish 
the 2005 BFT quota for all domestic fishing categories would have on 
individual categories and the vessels within those categories.
    As mentioned above, the 2002 ICCAT recommendation increased the BFT 
quota allocation to 1,489.6 mt, to be redistributed to the domestic 
fishing categories based on the allocation percentages established in 
the 1999 FMP, as well as a set-aside quota of 25 mt to account for 
incidental catch of BFT related to directed longline swordfish 
fisheries and other regulated tuna (bigeye, albacore, yellowfin, and 
skipjack) fisheries in the NED. Both these quota modifications were 
established in the 2003 and 2004 specifications. In 2004, the annual 
gross revenues from the commercial BFT fishery were approximately $5.2 
million. There are approximately 9,500 vessels that are permitted to 
land and sell BFT under four BFT quota categories (including charter/
headboat vessels). The commercial categories and their 2004 gross 
revenues are General ($4,346,814), Harpoon ($317,104), Purse seine 
($231,791), and Longline ($305,180). The analysis for the FRFA assumes 
that each vessel within a category will have similar catch and gross 
revenues. While this may not be true, the analyses are sufficient to 
show the relative impact of the various selected alternatives on 
vessels.
    For the allocation of BFT quota among domestic fishing categories, 
NMFS analyzed a no action alternative and Alternative two (selected 
alternative) which would implement the 2002 ICCAT recommendation. NMFS 
considered a third alternative that would have allocated the 2002 ICCAT 
recommendation in a manner other than that designated in the 1999 FMP 
that was meant to address issues regarding specific set-asides and 
allocations for fishing groups which are not currently considered in 
the 1999 FMP. However, since the third alternative could have resulted 
in a defacto sub-period quota reallocation, an FMP amendment would be 
necessary for its implementation, and it was not further analyzed. In a 
concurrent rulemaking, the development of the consolidated HMS FMP has 
been initiated (68 FR 40907, July 9, 2003) to consider sub-period quota 
allocations in the BFT fishery, among other things.
    As noted above, Alternative two would implement the 2002 ICCAT 
recommendation in accordance with the 1999 FMP and consistent with 
ATCA. Under ATCA, the United States is obligated to implement ICCAT-
approved quota recommendations. The selected alternative would apply 
this quota and have positive impacts for fishermen. The no action 
alternative would keep the quota at pre-2002 ICCAT recommendation 
levels (i.e., 77.6 mt less) and would not be consistent with the 
purpose and need for this action and the 1999 FMP. It would maintain 
economic impacts to the United States and to local economies at a 
distribution and scale similar to 2002 or recent prior years, but would 
deny fishermen additional fishing opportunities as recommended by the 
2002 ICCAT recommendation and as mandated by ATCA. This alternative was 
rejected because it was inconsistent with ATCA, the 1999 FMP, and the 
purpose and need for this action.
    Alternative two also included consideration of several options for 
reducing catch of school bluefin tuna, including: (1) Taking no action 
until 2006; (2) reallocating all or a portion of the 2005 school 
subquota to the large school/small medium subquota for 2005; (3) 
maintaining the default Angling category retention limit of one fish 
per vessel per day for the entire 2005 season; or (4) prohibiting 
landing of school BFT in 2005 and carrying over the subquota to 2006. 
During the public comment period, comment was specifically sought on 
these options. Because of limited economic data regarding recreational 
HMS fisheries, economic impacts of the various options cannot be 
quantified. However, the options that include some reduction in school 
BFT landings in 2005 (Options 2, 3 and 4) could have minor negative 
economic impacts for 2005. Any modest economic impacts to charter/
headboat or recreational fisheries as a result of option 2 could be 
mitigated by the shift of quota to the large school/small medium 
subquota. In addition, the apparent recent increase in school BFT 
landings could indicate an increase in abundance of young BFT, some of 
which could be recruited into the large school/small medium size class 
in 2005, thus mitigating any reduction in school BFT from Options 2 or 
4. Impacts from Option 3 are less likely to be mitigated by shifts in 
quota or abundance since the one fish retention limit would be in place 
for the entire season, and the small retention limit could have greater 
impacts on charter/headboat fisheries than the other options. Options 
2, 3, and 4 were rejected because each was more likely to have negative 
impacts on the 2005 fishing year as describe above than Option 1. Under 
Option 1, the selected alternative, there would be few negative impacts 
in the coming fishing year compared to the other alternatives; however, 
more severe measures may be required to reduce school harvest in 2006. 
NMFS intends to use inseason actions to the extent possible to adjust 
retention limits and moderate the catch of school BFT during the 2005 
fishing year to maximize fishing opportunities and mitigate impacts in 
2005 and 2006.
    For the General category effort controls, two alternatives were 
considered: The selected alternative to designate RFDs according to a 
schedule published in the initial BFT specifications and the no action 
alternative (no RFDs published with the initial specifications, but 
implemented during the season as needed). In the past, when catch rates 
have been high, the use of RFDs (selected alternative) has had positive 
economic consequences by avoiding oversupplying the market and 
extending the season as late as possible. Implementing RFDs to extend 
the late season may have negative economic impacts to northern area 
fishermen who choose to travel to the southern area during the late 
season fishery. Travel and lodging costs may be greater if the season 
were extended over a greater period of time as indicated under the 
selected alternative. Those additional costs could be mitigated if the 
ex-vessel price of BFT stays high. Without RFDs, travel costs may be 
less because of a shorter season; however, the market could be 
oversupplied and ex-vessel prices could fall. Despite the possible 
negative impacts, extending the season as late as possible would 
enhance the likelihood of increasing participation by southern area 
fishermen, increase access to the fishery over a greater range of the 
fish migration, and is expected to provide better than average ex-
vessel prices with an overall increase in gross revenues.
    The no action alternative would not implement any RFDs with 
publication of the initial specifications but rather would use inseason 
management authority established in the 1999 FMP to implement RFDs 
during the season, should catch rates warrant. This alternative is most 
beneficial during a season of low catch rates and would have positive 
economic consequences if slow catch rates were to persist. Overall, the 
season would regulate itself and fishermen could choose when to fish or 
not based on their own preferences. However, even with low catch rates 
and

[[Page 33039]]

no RFDs, this alternative was rejected because it is unlikely that 
there will be enough quota in the General category to sustain an 
extended late season commercial handgear fishery off south Atlantic 
states.
    The action would not result in additional reporting, recordkeeping, 
compliance, or monitoring requirements for the public. This final rule 
has also been determined not to duplicate, overlap, or conflict with 
any other Federal rules.
    NMFS prepared an EA for this final rule, and the AA has concluded 
that there would be no significant impact on the human environment with 
implementation of this final rule. 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 proposed rule, are available from NMFS via the Federal e-
Rulemaking Portal (see ADDRESSES).
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This final rule contains no new collection-of-information 
requirements subject to review and approval by the Office of Management 
and Budget (OMB) under the Paperwork Reduction Act (PRA). 
Notwithstanding any other provisions of the law, no person is required 
to respond to, nor shall any person be subject to, a penalty for 
failure to comply with a collection of information subject to the 
requirements of the PRA unless that collection of information displays 
a currently valid OMB control number.
    On September 7, 2000, NMFS reinitiated formal consultation for all 
HMS commercial fisheries under section 7 of the Endangered Species Act. 
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. This BiOp also concluded that 
the continued operation of the purse seine and handgear fisheries may 
adversely affect, but is not likely to jeopardize, the continued 
existence of any endangered or threatened species under NMFS 
jurisdiction. NMFS has implemented the reasonable and prudent 
alternative (RPA) required by this BiOp.
    Subsequently, based on the management measures in several proposed 
rules, a new BiOp on the Atlantic pelagic longline fishery was issued 
on June 1, 2004. The 2004 BiOp found that the continued operation of 
the fishery was not likely to jeopardize the continued existence of 
loggerhead, green, hawksbill, Kemp's ridley, or olive ridley sea 
turtles, but was likely to jeopardize the continued existence of 
leatherback sea turtles. The 2004 BiOp identified RPAs necessary to 
avoid jeopardizing leatherbacks, and listed the Reasonable and Prudent 
Measures (RPMs) and terms and conditions necessary to authorize 
continued take as part of the revised incidental take statement. On 
July 6, 2004, NMFS published a final rule (69 FR 40734) implementing 
additional sea turtle bycatch and bycatch mortality mitigation measures 
for all Atlantic vessels with pelagic longline gear onboard. NMFS is 
working on implementing the other RPMs in compliance with the 2004 
BiOp. On August 12, 2004, NMFS published an advance notice of proposed 
rulemaking (69 FR 49858) to request comments on potential regulatory 
changes to further reduce bycatch and bycatch mortality of sea turtles, 
as well as comments on the feasibility of framework mechanisms to 
address unanticipated increases in sea turtle interactions and 
mortalities, should they occur. NMFS will undertake additional 
rulemaking and non-regulatory actions, as required, to implement any 
management measures that are required under the 2004 BiOp. The measures 
in this action are not expected to have adverse impacts on protected 
species. Although the 2002 ICCAT recommendation increased the BFT 
quota, which may result in a slight increase in effort, NMFS does not 
expect this slight increase to alter current fishing patterns. Any 
option to reduce mortality of school BFT are expected to have 
negligible ecological impacts and not adversely impact protected 
species. The specific action to allocate additional BFT quota to the 
Longline category would not alter current impacts on threatened or 
endangered species. The action would not modify fishing behavior or 
gear type, nor would it expand fishing effort because BFT are only 
allowed to be retained incidentally. Thus, the action would not be 
expected to change previously analyzed endangered species or marine 
mammal interaction rates or magnitudes, or substantially alter current 
fishing practices or bycatch mortality rates.
    The area in which this action will occur 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 HMS Management Division of the Office of Sustainable 
Fisheries at NMFS. NMFS does not anticipate that this action will have 
any adverse impacts to EFH and, therefore, no consultation is required.
    NMFS has determined that the actions in this final rule are 
consistent to the maximum extent practicable with the enforceable 
policies of the coastal states in the Atlantic, Gulf of Mexico, and 
Caribbean that have Federally approved coastal zone management programs 
under the Coastal Zone Management Act (CZMA). The rule establishing 
quota specifications and effort controls was submitted to the 
responsible state agencies for their review under section 307 of the 
CZMA on March 23, 2005. As of May 6, 2005, NMFS has received five 
responses, all concurring with NMFS' consistency determination. Because 
no responses were received from other states, their concurrence is 
presumed.

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

    Dated: June 1, 2005.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 05-11208 Filed 6-1-05; 5:01 pm]
BILLING CODE 3510-22-P