[Federal Register Volume 71, Number 103 (Tuesday, May 30, 2006)]
[Rules and Regulations]
[Pages 30619-30628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-8267]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 060216041[dash]6137[dash]02; I.D. 020206C]
RIN 0648[dash]AT72


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

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

ACTION: Final rule.

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SUMMARY: NMFS announces the final initial 2006 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 and Angling 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[dash]Stevens Fishery 
Conservation and Management Act (Magnuson[dash]Stevens Act).

DATES: The final rule is effective June 29, 2006 except that the 
General and Angling category retention limits are effective as 
indicated in Table 1 in the SUPPLEMENTARY INFORMATION section of this 
document.

ADDRESSES: Supporting documents, including the environmental assessment 
(EA), final Regulatory Flexibility Act analysis (FRFA), and regulatory 
impact review(RIR), 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[dash]281[dash]9340. These documents are also available 
from the HMS Management Division website at http://www.nmfs.noaa.gov/sfa/hms/ or at the Federal e[dash]Rulemaking Portal: 
www.regulations.gov.

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

SUPPLEMENTARY INFORMATION: Atlantic tunas are managed under the dual 
authority of the Magnuson[dash]Stevens Act and the ATCA. The 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 the 
Magnuson[dash]Stevens Act and the ATCA has been delegated from the

[[Page 30620]]

Secretary to the Assistant Administrator for Fisheries, NOAA (AA).

Effective Dates for General and Angling Category Retention Limits

    The General and Angling category retention limits are effective as 
indicated in Table 1 below.

        Table 1. Effective Dates for Retention Limit Adjustments.
------------------------------------------------------------------------
                                                          BFT Retention
 Permit Category    Effective Dates         Area              Limit
------------------------------------------------------------------------
Atlantic tunas     June 1 through     All               Three BFT per
 General and HMS    August 31,                           vessel
 Charter/Headboat   inclusive.                           measuring 73
 (while fishing                                          inches (185 cm)
 commercially).                                          CFL or larger.
------------------------------------------------------------------------
Atlantic tunas     September 1, 2006  All               One BFT per
 General and HMS    through January                      vessel
 Charter/Headboat   31, 2007,                            measuring 73
 (while fishing     inclusive.                           inches (185 cm)
 commercially).                                          CFL or larger.
------------------------------------------------------------------------
HMS Angling and    June 1, 2006       All               Two BFT per
 HMS Charter/       through May 31,                      vessel
 Headboat (while    2007, inclusive.                     measuring 47
 fishing                                                 inches (119 cm)
 recreationally).                                        to less than 73
                                                         inches (185 cm)
                                                         CFL.
------------------------------------------------------------------------
HMS Angling and    July 1 through     South of          One BFT per
 HMS Charter/       21, 2006,          39[deg]18'        vessel
 Headboat (while    inclusive.         North latitude    measuring 27
 fishing                                                 inches (69 cm)
 recreationally).                                        to less than 47
                                                         inches (119 cm)
                                                         CFL.
------------------------------------------------------------------------
HMS Angling and    August 25 through  North of          One BFT per
 HMS Charter/       September 14,      39[deg]18'        vessel
 Headboat (while    2006, inclusive.   North latitude    measuring 27
 fishing                                                 inches (69 cm)
 recreationally).                                        to less than 47
                                                         inches (119 cm)
                                                         CFL.
------------------------------------------------------------------------

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 (71 FR 9507, February 24, 2006), 
and is not repeated here. By this rule, NMFS announces the final 
initial BFT quota specifications and General and Angling category 
effort controls.

Changes From Proposed Rule

    Subsequent to the proposed rule, NMFS finalized a report analyzing 
methodologies used to measure BFT in the Large Pelagics Survey (LPS) 
which is an angler survey used to estimate recreational harvest. Based 
on this report, NMFS determined that an adjustment to Angling category 
landings in 2002[dash]2004 of -4.88 percent was appropriate. The final 
rule includes a 40.9[dash]mt increase in overall Angling category quota 
from the proposed rule, reflecting this adjustment. In addition, this 
adjustment increases the school size class (27 inches to less than 47 
inches, 69 cm to less than 119 cm) subquota by 43.5 mt. The subquota 
for the trophy size class (73 inches and above, 185 cm and above) was 
also increased by 4.8 mt due to a mathematical error in the proposed 
rule, and the large school/small medium (47 inches to less than 73 
inches, 119 cm to less than 185 cm) was decreased by 7.4 mt due to a 
combination of the 4.88 percent adjustment and increase in the school 
subquota.
    The proposed rule included a prohibition on the retention of school 
size BFT; however, this final rule provides a modest school fishery 
based on the adjusted quota described above. The school fishery will be 
open in the southern area, defined as south of 39[deg] 18' N. lat. 
(Sec.  635.27(a)(2)(ii)) or approximately Great Egg Inlet, NJ, from 
July 1 to 21, 2006, during which time a retention limit of one school 
size BFT per day/trip will be in effect. In the northern area, defined 
as north of 39[deg] 18' N. lat., a retention limit of one school size 
BFT per day/trip will be in effect from August 25, 2006, to September 
14, 2006. The school retention limit is in addition to the retention 
limit for large school/small medium BFT (below).
    This final rule implements an Angling category retention limit of 
two BFT (47 inches to less than 73 inches, 119 cm to less than 185 cm) 
per vessel per day per trip, effective in all areas, for the entire 
fishing year. The proposed rule included a three[dash]fish retention 
limit in an attempt to offset the impacts of the lack of subquota for 
the school size category. During the public comment period, several 
commenters, including recreational fishing groups, expressed concern 
that the proposed retention limit could potentially lead to an 
overharvest of the Angling category quota, or a premature closure prior 
to the end of the season. Because of the variability of recreational 
landings, effort, and retention limits, it is not possible for NMFS to 
accurately project the amount and geographic distribution of 
recreational landings for the 2006 season. As a result, NMFS determined 
that a two[dash]fish retention limit was an appropriate retention limit 
for the Angling category for the 2006 season, since it would provide an 
ample recreational fishery with a lower potential of overharvesting the 
quota than the originally proposed three[dash]fish retention limit, and 
since a modest school size BFT fishery is available. NMFS has the 
authority to adjust Angling category retention limits inseason if 
warranted (Sec.  635.23(b)(3)).
    Updated landings estimates for the 2005 fishing year are now 
available for several BFT fishery categories, which affected quota 
allocations for 2006 in the General and Longline categories, and are 
incorporated in this final rule. Total additional landings of 19.5 were 
reported for the General category, reducing the General category quota 
to 1163.3 mt, and 16.9 mt for the Longline category, reducing the 
Longline category quota to 268.2 mt. The Longline category landings 
occurred in the subcategories as follows: 11.5 mt additional landings 
in the north (outside of the Northeast Distant area (NED)) and 5.4 mt 
additional in the south. The final quota available for the 2006 fishing 
year in each of the Longline subcategories is 70.5 mt in the north 
(outside the NED),

[[Page 30621]]

79.9 mt in the NED, and 117.8 mt in the south.

2006 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 2006 fishing year as follows: General category 
-- 1163.3 mt; Harpoon category -- 124.0 mt; Purse Seine category -- 
624.1 mt; Angling category -- 380.1 mt; Longline category -- 268.2 mt; 
and Trap category -- 5.3 mt. Additionally, 282.3 mt are allocated to 
the Reserve category for inseason adjustments, including potentially 
providing for a late season General category fishery, or for 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 380.1 mt is further subdivided as follows: School BFT -- 49.2 
mt, with 23.2 mt to the northern area (north of 39E18' N. lat.) and 
26.0 mt to the southern area (south of 39E18' N. lat.); large school/
small medium BFT -- 318.4 mt, with 150.3 mt to the northern area and 
168.1 mt to the southern area; and large medium/giant BFT -- 12.5 mt, 
with 4.2 mt to the northern area and 8.3 mt to the southern area.
    The 2002 ICCAT recommendation includes an annual 25 mt 
set[dash]aside quota to account for bycatch of BFT related to directed 
longline fisheries in the NED. This set[dash]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 268.2 mt is subdivided as follows: 70.5 mt 
to pelagic longline vessels landing BFT north of 31E N. lat. and 117.8 
mt to pelagic longline vessels landing BFT south of 31E N. lat., and 
79.9 mt to account for bycatch of BFT related to directed pelagic 
longline fisheries in the NED.

General Category Effort Controls

    NMFS implements General category time[dash]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[dash]period subquotas as follows: 60 
percent for June[dash]August, 30 percent for September, and 10 percent 
for October[dash]January. These percentages would be applied to the 
adjusted 2006 coastwide quota for the General category of 1163.3 mt, 
minus 10.0 mt reserved for the New York Bight set[dash]aside fishery. 
Therefore, of the available 1153.3 mt coastwide quota, 692.0 mt would 
be available in the period beginning June 1 and ending August 31, 2006; 
346.0 mt would be available in the period beginning September 1 and 
ending September 30, 2006; and 115.3 mt would be available in the 
period beginning October 1, 2006, and ending January 31, 2007.
    In addition to time[dash]period subquotas, NMFS is also 
implementing 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[dash]period subquotas and provide 
additional fine scale inseason flexibility. Although the General 
category has a relatively large quota for the 2006 fishing year, this 
permit category has the ability to harvest a great amount of quota in a 
short period of time, and the RFDs are necessary as a way to manage 
effort in the last subperiod. NMFS may consider waiving the RFDs if the 
General category fishery is slow. Therefore, NMFS establishes a series 
of solid blocks of RFDs for the 2006 fishing year, to extend the 
General category for as long as possible through the October through 
January time[dash]period. Persons aboard vessels permitted in the 
General category are prohibited from fishing, including 
catch[dash]and[dash]release and tag[dash]and[dash]release, for BFT of 
all sizes on the following days while the fishery is open: all 
Saturdays and Sundays from November 18, 2006, through January 31, 2007, 
and Thursday, November 23, 2006, and Monday, December 25, 2006, 
inclusive. These RFDs are implemented to improve distribution of 
fishing opportunities during the late season without increasing BFT 
mortality.
    Because of the large quota available in the General category quota, 
NMFS has determined that it is appropriate to increase the retention 
limit for the first subperiod of the General category fishery. 
Therefore, persons aboard vessels permitted in the General category may 
retain three large medium or giant BFT per vessel per day/trip from the 
effective date of this final rule through August 31, 2006. The 
retention limit may be adjusted with an inseason action to extend 
through other time periods if warranted under Sec.  635.23(a)(4).

Angling Category Effort Controls

    This final rule establishes a two[dash]fish retention limit for 
large school/small medium size classes for the fishing year. Therefore, 
persons aboard vessels permitted in the Angling category may retain two 
large school/small medium BFT per vessel per day/trip from the 
effective date of this rule through May 31, 2007.
    This final rule also implements two regional fisheries for school 
BFT. NMFS determined that this approach would be effective in providing 
the limited quota over the distribution of the fishery, particularly to 
those regions which do not have access to other size classes of BFT. 
The school fishery will be open in the southern area (south of 
39[deg]18' N lat.) from July 1 to 21, 2006. During this time period, in 
addition to two large school/small medium BFT, persons aboard vessels 
permitted in the Angling category and fishing in the southern area may 
retain one school BFT per vessel per trip. The school fishery will be 
open in the northern area, (north of 39[deg]18' N lat.) from August 25 
to September 14, 2006. During this time period, in addition to two 
large school/small medium BFT, persons aboard vessels permitted in the 
Angling category and fishing in the northern area may retain one school 
BFT per vessel per trip.

Comments and Responses

    Comment 1: Several commenters expressed concern over the accuracy 
of NMFS' estimates of recreational landings. Several commenters 
requested an analysis of the effect of measurement procedures in the 
Large Pelagics Survey (LPS) and a review of the length:weight 
conversions used by NMFS because they believed that school landings had 
been overestimated, while some commenters thought that recreational 
landings had been underestimated. Several commenters stated that the 
Maryland catch card data should be used in generating recreational 
estimates, and a commenter noted that Maryland catch card data was 
consistently lower than LPS estimates for the state of Maryland. 
Several commenters suggested that catch cards be implemented for all 
states and a commenter noted that NMFS should invest in improved 
recreational monitoring because of the numbers of fish that could be 
landed in the recreational fishery and the potential

[[Page 30622]]

impact on the stock. A commenter stated that the current regulations 
are a disincentive for reporting recreational catches because of the 
severe restrictions that have been proposed this year.
    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. Although none of these programs provide real[dash]time 
data on a coastwide basis, they provide the best data available for 
managing the recreational BFT fishery. 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, NMFS formed an ad hoc committee of NMFS 
scientists 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 NMFS could make with available data. In December 
2004, NMFS released a report stating the Committee's findings. NMFS 
will further review methods of fish measurement and length:weight 
conversions based on the findings of this report, and consultations 
with the contractor that performs the LPS.
    In a peer[dash]reviewed report released in April 2006, NMFS 
analyzed the potential impacts of the procedures used to measure BFT 
lengths in the LPS. This report states that under certain assumptions, 
the LPS may have overestimated landings from 2002[dash]2004, and an 
adjustment factor of 4.88 percent could be applied. This final rule 
implements revised quota specifications for the Angling category as a 
result of applying this adjustment factor to previous recreational 
landings estimates. NMFS is conducting a scientific review of 
length:weight conversions for BFT.
    In addition, NMFS is working with the State of Maryland to further 
refine the use of Maryland catch cards in estimates of coastwide 
recreational landings. Proposals to implement an Atlantic[dash]wide 
tail[dash]tag monitoring program remain under limited discussion among 
coastal states and within NMFS and include issues regarding specifics 
of logistics, implementation, and establishment of partnerships with 
coastal states.
    Comment 2: NMFS received many comments in response to the proposed 
recreational minimum size limit of 47 inches (119 cm); a few commenters 
favored the limit, while most commenters expressed concern or opposed 
it. Commenters stated the limit would have negative economic impacts 
for coastal areas such as New Jersey, Long Island, Maryland, Delaware, 
and the northeast coast including Rhode Island and Massachusetts, and 
one commenter stated that impacts to New York and New Jersey had been 
underestimated by NMFS. Commenters stated that fuel prices are expected 
to be at an unprecedented height this season and that there would be a 
severe negative impact on an already suffering charter/headboat 
industry. Commenters stated that there had been an abundance of 
school[dash]size fish on nearshore fishing grounds in these areas over 
the last several years which had stimulated the fishery, and that fish 
above the proposed minimum size limit would be located further offshore 
and unavailable to fishermen with smaller vessels or would be too 
expensive to pursue for some individuals, which was unfair. A commenter 
noted that flyrodders and spinning tackle anglers would not be able to 
pursue larger fish with their gear. Some commenters stated that fish 
above the proposed minimum size limit were not available in their 
region at all. Commenters also stated that catching inshore tuna was 
thrilling, and that shifting effort to other inshore species was 
unrealistic because of the need to re[dash]outfit gear and unsatisfying 
because of the difference in the fishing experience. Several commenters 
suggested size and/or retention limits other than those that were 
considered in the proposed rule, ranging from providing some kind of 
school fishery even if it was for a short period of time to providing a 
200[dash]mt quota of school size fish to closing the entire BFT fishery 
if the school fishery was closed. Many commenters stated that a 
prohibition on retention of school size fish would increase dead 
discards and post release mortality because so many school sized fish 
would be released.
    Response: The 2002 ICCAT recommendation that establishes the annual 
baseline domestic quota for the United States includes a provision 
designed to limit mortality of school BFT to an average of eight 
percent of overall quota allocation, calculated on a four[dash]year 
basis. Estimates of recreational harvest showed that the 
eight[dash]percent tolerance limit (calculated on an annual basis) had 
been exceeded by U.S. recreational fisheries in years one and two (2003 
and 2004) of the 4[dash]year balance period. In March 2005, NMFS 
consulted with the HMS Advisory Panel (AP) about the proposed initial 
BFT specifications for 2005 (70 FR 14630, March 23, 2005) to identify 
alternatives for the 2005 school BFT fishery. Since NMFS was reviewing 
methodology for measuring BFT in the Large Pelagics Survey (LPS), which 
could result in a decrease in previous school BFT harvest estimates, 
some members of the AP recommended that all of the available school 
quota be provided for the 2005 fishing year, even though such an 
approach could severely reduce the amount of quota available for the 
2006 fishing year. In February, 2006, estimates of the 2005 school 
harvest showed that landings were at, or near, the four[dash]year eight 
percent tolerance limit after only three years.
    As indicated in the response to Comment 1 above, NMFS' findings in 
the report on length measurements will be implemented to provide an 
increase in the school subquota to 49.2 mt. NMFS analyzed available 
recreational catch records to identify time periods which would provide 
some access to all user groups but avoid overharvesting the limited 
quota available. This final rule provides harvest opportunities for 
school BFT during the following three[dash]week windows: July 1 to 21, 
2006, in the southern area and August 25 to September 14, 2006, in the 
northern area. The north/south dividing line is at 39[deg]18' N. lat., 
located approximately at Great Egg Inlet, NJ. During these windows, the 
Angling category retention limits for BFT will be one BFT between 27 
inches and less than 47 inches (69 cm to less than 119 cm), and two BFT 
from 47 inches to less than 73 inches (119 cm to less than 185 cm). 
NMFS is also aware that the nature of BFT recreational fisheries has 
changed with increased numbers of recreational participants and fishing 
effort for smaller size BFT. The ICCAT BFT stock assessment is 
scheduled for June 2006, and negotiations at the annual Fall ICCAT 
meeting may provide an opportunity to address the changing needs of 
U.S. recreational fisheries.
    Comment 3: Several individuals commented on international aspects 
of the BFT fishery. Commenters stated that the United States should 
champion an increase in BFT size limit internationally and make 
compliance with current recommendations including submission of 
accurate catch data a higher priority at ICCAT. Commenters stated that 
fishermen in the western Atlantic were negatively impacted by more 
liberal regulations in the eastern Atlantic, and that the United States 
deserves a higher quota since it is a leader in BFT conservation. 
Another

[[Page 30623]]

commenter questioned whether U.S. measures were disadvantaging U.S. 
fishermen relative to foreign counterparts, which is contrary to ATCA, 
and stated that over[dash]restricting U.S. fishermen would not benefit 
international stocks. A commenter asked for an increase in school quota 
from ICCAT, and several other commenters stated that it would be 
difficult to request additional BFT quota with the current underharvest 
in the United States. A commenter stated that additional BFT quota was 
needed to expand the south Atlantic winter fishery.
    Response: This final rule implements the 2002 recommendation from 
ICCAT regarding the domestic allocation of the United States' 
internationally provided quota. While NMFS appreciates the comments 
provided on issues regarding the United States' participation and 
approach at ICCAT, NMFS recognizes that they recommend changes to the 
fishery that are beyond the scope of this rulemaking. NMFS recommends 
that the public provide input on these issues to the ICCAT Advisory 
Committee, which seeks such input for ICCAT[dash]related activities. 
The ICCAT Advisory Committee provides public input for 
ICCAT[dash]related activities.
    Comment 4: Several individuals noted concern about the status of 
BFT stocks and the need for additional conservation. One individual 
requested a minimum size increase to 74 inches (188 cm) because of the 
poor status of the BFT stock and another commenter suggested that 
breeding size fish be excluded from the fishery. A commenter suggested 
any underharvested allocation of giant size class BFT not be rolled 
over into the next fishing year as a conservation measure. Another 
commenter requested an emergency seasonal closure in the Gulf of Mexico 
to protect spawning BFT and further minimize dead discards. The 
commenter stated that BFT ``fit the legal definition of endangered 
under the Endangered Species Act, and are designated critically 
endangered on the World Conservations Union's Red List.''
    Response: NMFS and the U.S. Department of State continue to work 
through ICCAT to implement an international rebuilding plan, monitor 
the status of BFT stocks, and adjust the rebuilding plan as necessary. 
An ICCAT BFT stock assessment is planned for June 2006, and these 
results will be discussed and rebuilding plan adjustments could be made 
at the November 2006 ICCAT meeting. In addition, the United States has 
supported development of an integrated approach to management of 
eastern and western stocks of BFT, which is actively being discussed at 
ICCAT.
    International management of highly migratory species is complex and 
difficult, and domestic management including unilateral action by one 
nation may or may not have the intended results on an international 
scale. For example, although the United States could adjust the 
domestic fate of underharvest roll[dash]over for conservation purposes, 
this approach might not be supported internationally and the 
underharvest could be re[dash]allocated to another country. In domestic 
management, NMFS works to balance socio[dash]economic impacts to U.S. 
fishermen, ecological impacts to BFT stocks and other ecosystem 
components, and impacts of domestic management on international 
rebuilding and negotiations.
    NMFS prohibits directed fishing for BFT in the Gulf of Mexico to 
limit mortality on spawning BFT and reduce dead discards. NMFS is 
considering adjustments to time/area closures for management of HMS 
under the Draft Consolidated HMS FMP, including an alternative for a 
BFT spawning area closure in the Gulf of Mexico. The comment period for 
the proposed rule to implement various FMP measures closed on March 1, 
2006, and the final rule is in preparation. The analyses for the time/
area closure alternatives can be viewed in the draft Environmental 
Impact Statement at the following website: http://www.nmfs.noaa.gov/sfa/hms/hmsdocument_files/FMPs.htm.
    Comment 5: NMFS received several comments regarding the 
recreational fishery in addition to comments on the school fishery. 
Many commenters suggested that the proposed limit of three fish per 
vessel (47 inches to less than 73 inches, 119 cm to less than 185 cm) 
be reduced in order to extend the fishery throughout the entire year, 
because fish that size are available off southern New Jersey and 
Maryland, and that regional fishery could harvest a significant portion 
of the quota. Many individuals supported the three[dash]fish retention 
limit, and having the same size and retention limits in effect for both 
private vessels and charter/headboats. Several commenters stated that 
many recreational fishermen off Long Island were not familiar with the 
need for an HMS permit and expressed concern about enforcement, 
especially with a school prohibition in place. A commenter stated that 
HMS angling permit holders should be better informed of regulations 
associated with the permit. A commenter stated that an economic 
analysis of recreational fisheries is needed.
    Response: In the final rule, NMFS reduced the retention limit to 
two fish (47 inches to less than 73 inches, 119 cm to less than 185 cm) 
per vessel per day/trip, to ensure that a recreational fishery is 
available throughout the entire season. NMFS may raise or lower this 
retention limit during the season, if warranted, based on criteria 
including the status of landings and availability of BFT on the fishing 
grounds. An overview of the potential socio[dash]economic impact of the 
final rule, including a discussion of impacts to the recreational 
fishery [dash] among all other fishing categories [dash] is included in 
the EA/RIR/FRFA. A more detailed analysis is included in the 1999 FMP, 
and the draft EIS for the Draft Consolidated HMS FMP.
    The HMS Angling category permit, which applies to fishing vessels 
pursuing BFT recreationally, has been in effect since 2003 and, prior 
to that, a recreational tuna permit was required. Recreational permits 
have been available for purchase on the internet since 1999, along with 
instructional information regarding permit requirements and other HMS 
regulations. NMFS also provides outreach mailings to permit holders, 
press releases, and a FAX information network, among other things, to 
help keep the public informed about regulatory requirements. NMFS law 
enforcement works closely with other Federal, state, and local 
enforcement agencies to educate fishermen and enforce NMFS regulations 
including prohibitions. However, it is each angler's responsibility to 
be informed about applicable regulations.
    Comment 6: Many commenters characterized differences in the 
management of recreational and commercial BFT fisheries as unfair. One 
commenter stated that comparable permitting, reporting, monitoring, and 
enforcement was needed across all domestic HMS fisheries. Several 
commenters stated that the recreational fishery has less of an impact 
on the stocks than the commercial sector because of the amount of quota 
allocated to the commercial sector, while other commenters said that 
the recreational fishery has more of an impact because of the greater 
number of fish that are harvested (per ton) compared to the commercial 
sector. Another commenter requested that recreational fishermen be 
allowed to sell their catch.
    Response: The Magnuson[dash]Stevens Act, 1999 FMP, and implementing 
regulations all conserve and manage both commercial and recreational 
fisheries. This final rule is consistent

[[Page 30624]]

with all applicable law including the Magnuson[dash]Stevens Act, the 
1999 FMP, and ICCAT's BFT stock rebuilding plan. Through this rule, 
NMFS manages the commercial and recreational sectors of the BFT fishery 
under different objectives, as indicated in the 1999 FMP. In addition, 
NMFS bases different requirements regarding permitting and reporting on 
the impacts of different fisheries and the objectives under which they 
are managed. Subject to these objectives, recreational anglers are 
prohibited from selling BFT. Adjusting the HMS regulations to allow 
recreational fishermen to sell fish is outside the scope of this 
rulemaking and contradicts these management objectives. Implementing 
regulations at Sec.  635.4(d)(2) prohibit the sale of Atlantic HMS 
caught on board vessels holding an HMS Angling category permit. The 
General category fishery is an open[dash]access commercial fishery, and 
permits in this category are available to any fisherman that submits a 
complete application package.
    Comment 7: Many individuals commented on the General category quota 
and effort controls. Comments on the retention limit ranged from 
support for the three[dash]fish bag limit to reducing the retention 
limit to one, and several commenters suggested keeping the 
three[dash]fish limit for other subperiods except the winter fishery.
    Comments on the proposed RFDs ranged from full support to removing 
them entirely and included increasing NMFS' responsiveness in waiving 
RFDs during the season and/or waiving RFDs at the beginning of the last 
subperiod if there is substantial quota left. Several individuals noted 
that the RFDs could increase economic costs to out[dash]of[dash]town 
fishermen traveling to the south Atlantic to fish in the winter fishery 
and the RFDs affect the ability of fishermen to plan in advance, while 
others noted that the fish landed during the winter fishery brought the 
best price per pound.
    A number of individuals stated that the RFDs contributed to the 
underharvest in the General category in 2005, and several commenters 
expressed concern about the amount of underharvest and its potential 
impacts on negotiations at ICCAT. One commenter stated that underages 
should be applied to the overall baseline quota rather than rolled into 
individual quota categories, while another commenter stated that it was 
appropriate to apply them to specific categories.
    An individual asked whether a winter fishery would be guaranteed if 
catch rates are high in the early season.
    Response: This final rule implements the General category effort 
controls as proposed in the proposed rule, including a three[dash]fish 
retention limit for the first subperiod. A bag limit of only one BFT, 
or even two BFT, at the start of the season is determined to be overly 
restrictive due to the large amount of available quota and the 
traditional slow catch rate at the opening of the season during the 
first time subperiod. NMFS may adjust the retention limit for the 
remaining subperiods if warranted based on the criteria outlined in the 
HMS regulations at Sec.  635.23(a)(4). This final rule also implements 
the proposed RFDs on Saturdays and Sundays after November 18, and 
November 23, and December 25. NMFS modified the RFD schedule based on 
experience from the 2005 season, and did not include Fridays since it 
was difficult to waive Fridays on several occasions. NMFS created RFDs 
to achieve optimum yield, and to extend the late season General 
category fishery. NMFS recognizes that two[dash]day consecutive RFDs 
could negatively impact non[dash]resident fishermen. NMFS configured 
the RFDs is to separate the commercial and recreational fisheries 
temporally (i.e. General category fishes Monday through Friday, Angling 
category fishes Saturday and Sunday) to improve conditions on the 
fishing grounds for both fisheries. NMFS expects market value of BFT to 
increase as a result of spreading the fishery out over the late season. 
This could also mitigate any potential extra costs of non[dash]resident 
fishermen for boat dockage and overnight fees. NMFS recognizes that the 
weather is unpredictable during this time period of the fishery, and 
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 Sec.  
635.23(a)(4), NMFS may adjust the daily retention limits with a minimum 
three day notification to fishermen via a notice in the Federal 
Register. While NMFS created RFDs to provide a reasonable opportunity 
to harvest the available quota while avoiding overharvesting, the 
unpredictability of both weather patterns and the availability of fish 
on the fishing grounds may affect their utility and will be considered 
during inseason management. NMFS must, under Sec.  635.27(a)(9), roll 
over[dash] or underharvests into the same quota category for the 
following year.
    NMFS is aware of the interests of Southern area fishermen, 
particularly off North Carolina, for a fixed General category quota 
allocation. NMFS is considering several alternatives for restructuring 
General category subquotas in the Draft Consolidated HMS FMP (70 FR 
48804, August 19, 2005) currently under development, to provide a 
long[dash]term solution to quota allocation for the December to January 
timeframe.
    Comment 8: Several miscellaneous comments were provided on issues 
that are outside the scope of this rulemaking. Several commenters 
stated that NMFS should explore ways to harvest unused quota and 
offered suggestions such as extending the General category fishing year 
into February, March, or May, increasing the allowable retention limit 
for the General category from a maximum of three, allowing sale of fish 
between the sizes of 47 inches and 73 inches (119 cm and 185 cm), and 
relaxing incidental catch requirements in the longline category. A 
commenter stated that the trap fishery no longer harvests BFT and that 
the quota allocation should be shifted to another fishery that has 
incidental BFT catch such as a midwater trawl fishery. Several 
commenters suggested adding a division to the recreational fishery in 
addition to the current north/south line. A commenter requested that 
NMFS relax the ``tails[dash]on'' requirement.
    Several individuals commented on post[dash]release mortality, 
including dead discards in hand gear and longline fisheries, and 
suggested alternative approaches to reduce dead discards and eliminate 
high[dash]grading such as prohibiting recreational catch and release 
fishing altogether, providing some tolerance to size limits in hand 
gear fisheries, and increasing incidental catch limits in the pelagic 
longline fishery. Another commenter supported the ICCAT allocation for 
incidental catch ``in the vicinity of the management area boundary'' 
and stated that the availability of this quota has reduced unnecessary 
dead discards and has resulted in a more accurate depiction of U.S. 
longline interactions with BFT in the northeast distant area.
    Several commenters stated that the purse seine fishery was unfair 
because such a large quota was restricted to a few individuals. Others 
commented that this fishery violated the Magnuson[dash]Stevens Act, and 
that the fishery should carry observers.
    Several individuals stated that harvest of forage fish in other 
fisheries such as the herring midwater trawl fishery was affecting the 
ability of BFT fishermen to harvest the quota. Several other commenters 
stated concerns about the switch from a calendar year to a fishing year 
that is being considered in the consolidated HMS FMP, and how it might 
affect the winter BFT fishery off the south Atlantic.

[[Page 30625]]

    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[dash]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 Sec.  635.27(a). The requested actions under this 
comment are all outside the scope of this action to implement BFT 
specifications in accordance with the existing 1999 FMP and regulations 
as the comments propose policy and/or regulatory changes to the 1999 
FMP (i.e. category percent quota allocations), implementing 
regulations, and/or ICCAT recommendations.
    The New England Fishery Management Council has the lead for 
managing the herring fishery, and has recently adopted an amendment to 
the herring FMP that would implement a seasonal closure to address the 
potential impacts of herring fishing in certain New England areas on 
the BFT fishery. This amendment is expected to be implemented in Fall 
2006. The comment period for the Draft Consolidated HMS FMP closed on 
March 1, 2006, and the final regulations to implement various measures 
in the FMP are being prepared. The comment regarding potential impacts 
of a shift to calendar year fisheries was received during the comment 
period for the Draft Consolidated HMS FMP (70 FR 48804, August 19, 
2005), and will be addressed in the final rule for that rulemaking.

Classification

    These final specifications and effort controls are published under 
the authority of the Magnuson[dash]Stevens Act and ATCA. The Assistant 
Administrator for Fisheries (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, and are consistent with the Magnuson[dash]Stevens Act and 
National Standards.
    The AA finds that pursuant to 5 U.S.C. 553(d)(1), the 30[dash]day 
delayed effectiveness period is waived for the General category 
retention limit contained in this action. The 30[dash]day delayed 
effectiveness period is waived as this action relieves a restriction by 
increasing the General category retention limit to three large medium 
or giant BFT per vessel per day per trip. The default retention limit 
which would become effective when the season opens on June 1, 2006, 
without this action, is one large medium or giant BFT per vessel per 
day per trip (Sec.  635.23(a)(2)). Therefore, this action allows 
General category permit holders to harvest more BFT than they could 
under existing regulations.
    The AA also finds good cause under U.S.C. 553(d)(3) to waive the 
30-day delayed effectiveness period for the Angling category provisions 
of this action. In order to finalize the Angling category provisions 
contained in this final rule, NMFS needed to determine the appropriate 
Angling quota for school size BFT. A peer reviewed NMFS report 
analyzing methodologies used to estimate the recreational BFT catch 
information, and thus determine the appropriate school size BFT quota, 
was not finalized until April 2006. NMFS determined the limited Angling 
category quota and retention limits for school size BFT between 27 
inches to less than 47 inches (69 cm to less than 119 cm) by applying 
an adjustment factor to the recreational catch information analyzed in 
this report. As explained below, the Angling category measures 
contained in this final rule must be effective by the June 1, 2006 
opening of the BFT season to ensure that the school size BFT quota, as 
determined using the data in the April report, is not exceeded.
    Without the waiver for the 30-day delayed effectiveness period, the 
default Angling category retention limit of one school, large school, 
or small medium BFT from 27 inches to less than 73 inches (69 cm to 
less than 185 cm) per day per trip (Sec.  635.27(b)(2)(ii)) goes into 
effect when the season opens on June 1, 2006. Preliminary calculations 
show that only a limited amount of quota is available from the school 
size class (i.e. BFT from 27 inches to less than 47 inches) in 
accordance with the quota allocations of the 1999 FMP and international 
recommendation. By allowing the default Angling category retention 
limit to be implemented, with the limited amount of school size 
category BFT quota available for 2006, NMFS increases the risk of 
harvesting the limited amount of quota in full early in the season, 
thus precluding anglers in other areas from having a reasonable 
opportunity to harvest a portion of the school size category BFT quota. 
This risk is substantiated by successful trip and catch information 
collected in previous years via the LPS, as well as recreational 
information collection programs such as, the Maryland Recreational BFT 
Catch Card Program and the ALRS. Furthermore, an analysis of the 
historical data show that the two best time periods to make this 
limited school quota available to the broadest possible number of 
participants exists in early July and again in late August to early 
September. The data also show that it is possible to maintain a modest 
school fishery over these two time periods without exceeding the 
available quota and international recommendation regarding catches of 
this small size class of fish. However, to maximize the likelihood of 
achieving a modest school fishery over the two discreet time periods 
without exceeding the available quota, it is necessary to restrict 
access to this size class at other time periods including the opening 
of the fishery on June 1. The increased retention limit for large 
school/small medium in part offsets any perceived increase in 
restrictiveness of increasing the minimum size limit from 27 inches (69 
cm) to 47 inches (119 cm).
    NMFS has prepared this FRFA to analyze the impacts on small 
entities of the alternatives for establishing 2006 fishing year BFT 
quotas for all domestic fishing categories and General and Angling 
category effort controls.
    In the analysis for the FRFA, NMFS assesses the impacts of the 
various alternatives on the vessels that participate in the BFT 
fisheries. All of those vessels are considered small entities under the 
Office of Management and Budget guidelines. NMFS estimated the average 
impact that the alternative to establish the 2006 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, which 
is distributed to the domestic fishing categories based on the 
allocation percentages established in the 1999 FMP. This quota 
allocation includes a set[dash]aside quota of 25 mt to account for 
incidental catch of BFT related to directed longline swordfish and 
non[dash]BFT tuna fisheries in the NED. Both these quota modifications 
were established in the 2003, 2004, and 2005 specifications.
    In 2005, the annual gross revenue from the commercial BFT fishery 
was approximately $4.3 million. The BFT fishery comprises approximately 
8,511 vessels that are permitted to land and sell BFT under four 
commercial BFT quota categories (including charter/headboat vessels). 
The commercial categories and their 2005 gross revenues are General 
($2.9 million), Harpoon ($0.2 million), Purse seine ($0.9 million), and 
Longline ($0.2 million). NMFS approximates that each vessel within a 
category will have similar catch and gross revenues to show the

[[Page 30626]]

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 to address issues regarding the changing 
nature of the BFT fisheries. The third alternative would have allocated 
the 2002 ICCAT recommendation by providing specific set[dash]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[dash]period quota reallocation, an FMP amendment would 
be necessary for its implementation, and NMFS did not further analyze 
it here. Instead, NMFS has proposed changes to BFT subquota 
allocations, among other things, in the Draft Consolidated HMS FMP (70 
FR 48804, August 19, 2005).
    As noted above, alternative two would implement the 2002 ICCAT 
recommendation in accordance with the 1999 FMP and the ATCA. Under the 
ATCA, the United States is obligated to implement ICCAT[dash]approved 
quota recommendations. The selected alternative would apply this quota 
and have positive impacts for fishermen by providing a slight increase 
in quota. The no action alternative would keep the quota at 
pre[dash]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. Implementing the no action alternative 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 the ATCA.
    The selected alternative would also implement the provision of the 
2002 ICCAT recommendation that limits tolerance for school BFT landings 
to eight percent of the domestic quota, calculated on a 4[dash]year 
average. Because of high landings in the previous three years, 
resulting in near full utilization of the 4[dash]year tolerance limit, 
NMFS is including a 49.2[dash]mt limit on school landings. This limit 
could have negative economic impacts to fishermen who fish for school 
BFT, particularly those who rely exclusively on the school size class 
for BFT harvest. NMFS received several comments during the public 
comment period expressing this concern. In some regions, access to 
large school and small medium BFT will mitigate these impacts. In areas 
where school size BFT are primarily available, NMFS will provide a 
limited fishery, and fishermen may be able to shift their efforts to 
other pelagic species (e.g., striped bass or bluefish) to mitigate 
impacts. NMFS does not know whether shifting effort for either of these 
user groups will mitigate negative economic impacts.
    Two alternatives were considered for effort control using RFDs in 
the General category. 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, if required. This alternative could 
be most beneficial during a season of low catch rates and could have 
positive economic consequences if slow catch rates were to persist 
during the late season fishery. During a slow season, fishermen could 
choose when to fish or not based on their own preferences. However, it 
is impossible to predict in advance whether the season will have low or 
high catch rates based on availability of BFT, weather, and fisherman 
behavior, among other things.
    The selected alternative would designate RFDs according to a 
schedule published in the initial BFT specifications. When catch rates 
were high, NMFS used RFDs (selected alternative) with positive economic 
consequences by avoiding oversupplying the market and extending the 
season as late as possible. In addition, NMFS provides better planning 
opportunities by establishing RFDs at the season onset than 
implementing RFDs during the season. For example, charter/headboat 
businesses could book trips and recreational and commercial fishermen 
could make plans ahead of time rather than waiting until the last 
minute to see if an RFD is going to be implemented. However, NMFS is 
aware of public concern that implementing RFDs to extend the late 
season may have some negative economic impacts to northern area 
fishermen who choose to travel to the southern area during the late 
season fishery. Moreover, travel and lodging costs may be greater if 
the season were extended over a greater period of time under the 
selected alternative. Those additional costs could be mitigated if the 
ex[dash]vessel price of BFT stays high. NMFS notes that without RFDs, 
travel costs may be less because of a shorter season; however, the 
market could be oversupplied and ex[dash]vessel prices could fall. NMFS 
believes that extending the season as late as possible and establishing 
formalized RFDs at the season onset will enhance the likelihood of 
increasing participation by southern area fishermen, increase access to 
the fishery over a greater range of the fish migration, provide a 
reliable mechanism for slowing a fishery that has an ability to 
generate extremely high catch rates, and provide better than average 
ex[dash]vessel prices with an overall increase in gross revenues.
    A three[dash]fish retention limit (73 inches (185 cm) or above) is 
the selected alternative for the opening retention limit for the 
General category, which would be in effect through August 31, 2006. 
This alternative is expected to result in the most positive 
socio[dash]economic impacts by providing the best opportunity to 
harvest the quota while avoiding oversupplying the market, thus 
maximizing gross revenues. NMFS considered other alternatives including 
the no action alternative (one BFT 73 inches (185 cm) or above per 
vessel per day/trip) and an alternative with a retention limit of two 
BFT (73 inches (185 cm) or above per vessel per day/trip). NMFS expects 
that both these alternatives are too restrictive given the large amount 
of quota available for the General category during the 2006 fishing 
year and could result in the negative economic impact of lower gross 
revenues. Although early season landings seldom occur at a rate that 
could oversupply the market, NMFS will monitor landings closely to 
assure that the increased retention limit does not contribute to an 
oversupply.
    Six alternatives were considered for Angling category retention 
limits for the 2006 fishing year. The no action alternative was 
rejected since it would allow substantial landings of school size class 
BFT. This alternative is contrary to the 1999 FMP, 2002 ICCAT 
recommendation and the ATCA, given the status of school landings over 
the first three years of the four[dash]year balance period. The 
selected alternative is a two BFT (from 47 inches to less than 73 
inches (119 cm to less than 185 cm) per vessel per day/trip) retention 
limit for all sectors of the Angling category for the entire 2006 
fishing year. The selected alternative also includes two limited 
regional fisheries for school BFT, which would allow retention of one 
school BFT (27 inches to less than 73 inches, 69 cm to less than 185 
cm) per vessel per day/trip from July 1 to 21, 2004, in the southern 
management area and the same limit in the northern areas from August 25 
to September 14, 2006. During the public comment period, NMFS received 
many comments regarding the negative economic impacts of the proposed 
prohibition on school landings included in the

[[Page 30627]]

proposed rule. In response to the comments and results and 
recommendations of the NMFS Report analyzing length measurement 
assessment of BFT, NMFS has determined it is possible to provide a 
modest school fishery based on the adjusted school quota. The selected 
alternative would reduce negative economic impacts to the recreational 
fishery by allowing recreational fishermen one school size BFT per day/
trip from July 1 to 21, 2006 and again from August 25 to September 14, 
2006.
    In addition to the selected alternative, two other alternatives 
were considered that would provide the same retention limits for both 
private recreational and charter/headboats. One alternative (one BFT 
from 47 inches to less than 73 inches (119 cm to less than 185 cm) per 
vessel per day/trip) was not selected because it could unnecessarily 
restrict the amount of Angling category landings which could result in 
an underharvest of the BFT quota and a negative economic impact. The 
other alternative would allow one BFT per person up to a maximum of six 
BFT per vessel (from 47 inches to less than 73 inches (119 cm to less 
than 185 cm) and is the alternative most likely to result in an 
overharvest of the BFT quota with negative economic consequences.
    Two other alternatives were considered which provided differential 
retention limits between the Angling category sectors, all for BFT from 
47 inches to less than 73 inches (119 cm to less than 185 cm). The 
first would provide a private vessel retention limit of two fish per 
vessel per day/trip and a charter/headboat limit of one fish per person 
with a maximum of six per vessel per day/trip. The second alternative 
would provide one fish for each vessel per day/trip for the season, 
with an increase to three fish per vessel for charter/headboats during 
June 15, 2006, through July 31, 2006, and the month of September 2006. 
The second alternative was considered to be unnecessarily restrictive 
with a greater potential for negative economic impacts associated with 
not harvesting the entire quota. The first alternative was not selected 
since it could result in perceived inequities between the two sectors 
of the Angling category fishery.
    This final rule will not result in additional reporting, 
recordkeeping, compliance, or monitoring requirements for the public. 
It 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[dash]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[dash]of[dash]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 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. The BiOp also 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; however, the most recent BiOp for the longline fishery 
was prepared in 2004 BiOp (see below). NMFS has implemented the 
reasonable and prudent alternative (RPA) required by the 2001 BiOp.
    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 the RPA and additional sea 
turtle bycatch and bycatch mortality mitigation measures for all 
Atlantic vessels with pelagic longline gear onboard. NMFS is 
implementing the other RPMs and terms and conditions 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[dash]regulatory actions, as required, to 
implement any management measures that are required under the 2004 
BiOp. NMFS does not expect the measures in this action 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 measures in this action that allocate additional 
BFT quota to the Longline category would not alter current impacts on 
threatened or endangered species because 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, NMFS 
does not expect the measures in this action 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[dash]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

[[Page 30628]]

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 11, 
2006, NMFS has received responses from the states of Delaware, Florida, 
New Hampshire, New Jersey, North Carolina, and Rhode Island, 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: May 24, 2006.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. E6-8267 Filed 5-26-06; 8:45 am]
BILLING CODE 3510-22-S