[Federal Register Volume 69, Number 237 (Friday, December 10, 2004)]
[Proposed Rules]
[Pages 71771-71776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27166]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 041203341-4341-01; I.D. 072304B]
RIN 0648-AR86


Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Quota 
Specifications, General Category Effort Controls, and Catch-and-Release 
Provision

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes initial 2004 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. NMFS also proposes to establish a catch-and-release 
provision for recreational and commercial BFT handgear vessels during a 
respective quota category closure. 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). NMFS will hold public hearings 
to receive comments on these proposed actions.

DATES: Written comments must be received on or before January 6, 2005.
    The public hearings dates are:
    1. December 27, 2004, from 2 p.m. to 4 p.m. in Silver Spring, MD.
    2. December 28, 2004, from 3 p.m. to 4:30 p.m. in Gloucester, MA.

ADDRESSES: Comments may be submitted through any of the following 
methods:
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#4676720400121516030515062829272768212930"><span class="__cf_email__" data-cfemail="2212166064767172676171624c4d43430c454d54">[email protected]</span></a>.
    <bullet> Federal e-Rulemaking Portal: http://www.regulations.gov.
    <bullet> Mail: Brad McHale, Highly Migratory Species Management 
Division, Office of Sustainable Fisheries (F/SF1), NMFS, One Blackburn 
Dr., Gloucester, MA 01930.
    <bullet> Fax: 978-281-9340.
    The public hearing locations are:
    1. NOAA Science Center, 1301 East-West Highway, Silver Spring, MD 
20910.
    2. NOAA/NMFS Northeast Region Downstairs Conference Room, 1 
Blackburn Drive Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Brad McHale at (978) 281-9260.

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

Background

    On May 28, 1998, NMFS published in the Federal Register (64 FR 
29090) final regulations, effective July 1, 1999, implementing the 
Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS 
FMP) that were adopted and made available to the public in April 1999.
    In November 2002, ICCAT recommended a Total Allowable Catch (TAC) 
of BFT for the United States in the western Atlantic management area of 
1,489.6 metric tons (mt), effective beginning in 2003 and continuing in 
subsequent fishing years until revised by ICCAT. Also in the 2002 
recommendation, ICCAT allocated 25 mt annually to account for 
incidental catch of BFT by pelagic longline fisheries directed on other 
species ``in the vicinity of the management boundary area.'' This area 
was defined in the 2003 BFT annual specification rulemaking process as 
the Northeast Distant statistical area (NED) (68 FR 56783, October 2, 
2003). The TAC of 1,489.6 mt is inclusive of the annual 25 mt pelagic 
longline set-aside in the NED. The initial specifications within this 
proposed rule are published in accordance with the HMS FMP and are 
necessary to implement the 2002 ICCAT quota recommendation, as required 
by ATCA, and to achieve domestic management objectives under the 
Magnuson-Stevens Act.
    This proposed rule would (1) establish initial quota specifications 
consistent with the BFT rebuilding program as set forth in the HMS FMP 
by allocating the 2002 ICCAT-recommended quota for the 2004 fishing 
year (June 1, 2004 - May 31, 2005); (2) establish the General category 
effort controls, including time-period subquotas and restricted fishing 
days (RFDs), for the 2004 fishing season; and (3) establish a catch-
and-release provision for recreational and commercial handgear vessels 
once their respective quota categories have been closed.
    After consideration of public comment, NMFS will issue final 
initial quota specifications and effort controls and publish them in 
the Federal Register, along with NMFS' response to those comments. The 
specifications and effort controls may subsequently be adjusted during 
the course of the fishing year, consistent with the provisions of the 
HMS FMP, and will be published in the Federal Register.
    NMFS acknowledges that a number of other issues regarding the 
domestic management of BFT have been discussed over the prior year, 
including a Petition for Rulemaking, at the 2003 HMS Advisory Panel 
(AP) meeting held in Silver Spring, MD and at public scoping hearings 
relating to Amendment 2 of the HMS FMP. Some of these issues have been 
addressed in separate rulemakings. For instance, at the end of 2003, a 
final rule was published (68 FR 74504, December 24, 2003) that (1) 
extended the General category season from December 31 to January 31, 
(2) established a Harpoon category end date of November 15 (or when the 
quota is

[[Page 71772]]

reached, whichever comes first), (3) adjusted the Harpoon category 
tolerance limits for large medium BFT, and (4) adjusted the Purse seine 
category opening date and large medium BFT tolerance limits. Some 
additional issues may be addressed in Amendment 2 to the HMS FMP or in 
other future rulemaking. These issues may include, but are not limited 
to, adjustment of domestic quota allocation percentages and General 
category time-period subquotas and addressing concerns raised in the 
Petition for Rulemaking submitted by the North Carolina Department of 
Marine Fisheries (see Notice of Receipt of Petition, 67 FR 69502, 
November 18, 2002).
    NMFS has prepared a draft Environmental Assessment (EA), Regulatory 
Impact Review (RIR), and an Initial Regulatory Flexibility Analysis 
(IRFA) which present and analyze anticipated environmental, social, and 
economic impacts of several alternatives for each of the three major 
issues contained in this proposed rule. The complete list of 
alternatives and their analysis is provided in the draft EA/RIR/IRFA, 
and is not repeated here in its entirety. A copy of the draft EA/RIR/
IRFA prepared for this proposed rule is available from NMFS (see 
ADDRESSES).

Domestic Quota Allocation

    The HMS FMP and its implementing regulations established baseline 
percentage quota shares for the domestic fishing categories. These 
percentage shares were based on allocation procedures that NMFS 
developed over several years. The baseline percentage quota shares 
established in the HMS FMP for fishing years beginning June 1, 1999, to 
the present are as follows: General category - 47.1 percent; Harpoon 
category - 3.9 percent; Purse seine category - 18.6 percent; Angling 
category - 19.7 percent; Longline category - 8.1 percent; Trap category 
- 0.1 percent; and Reserve category - 2.5 percent. The 2002 ICCAT-
recommended U.S. BFT quota of 1,464.6 mt, not including the annual 25 
mt set aside for pelagic longline vessels, would be allocated in 
accordance with these percentages. However, in addition to the 2002 
ICCAT quota recommendation, quota allocations are adjusted based on 
overharvest or underharvest from prior fishing year's activity and on 
U.S. data on dead discards as they relate to the ICCAT dead discard 
allowance. Each of these adjustments is discussed below and then 
applied to the results of the above percentage shares to determine the 
2004 fishing year proposed initial quota specifications.

The 2003 Underharvest/Overharvest

    The current ICCAT BFT quota recommendation allows, and U.S. 
regulations require, the addition or subtraction, as appropriate, of 
any underharvest or overharvest in a fishing year to the following 
fishing year, provided that the total of the adjusted category quotas 
does not result in overharvest of the total annual BFT quota and 
remains consistent with all applicable ICCAT recommendations, including 
restrictions on landings of school BFT. Therefore, NMFS proposes to 
adjust the 2004 fishing year quota specifications for the BFT fishery 
to account for underharvest or overharvest in the 2003 fishing year, 
which in turn were adjusted due to revised information on 2002 fishing 
year underharvests and overharvests.
    Overall U.S. landings figures for the 2002 and 2003 fishing years 
are still preliminary and may be updated before the 2004 fishing year 
specifications are finalized. Should adjustments to the final initial 
2004 BFT quota specifications be required based on final 2002 and/or 
2003 BFT landing figures, NMFS will publish the adjustments in the 
Federal Register. For the 2003 fishing year, NMFS has preliminarily 
determined that General category landings were higher than the adjusted 
General category quota by approximately 30.8 mt; that Harpoon category 
landings were less than the adjusted Harpoon category quota by 
approximately 24.3 mt; that Longline category landings were less than 
the adjusted Longline category quota by approximately 27.6 mt; that 
2003 Angling category landing estimates, inclusive of revised 2002 
fishing year Angling category landing estimates, were in excess of the 
adjusted Angling category quota by approximately 440.7 mt; and that 
Purse seine category landings were less than the adjusted Purse seine 
category quota by approximately 117.0 mt. Regulations at 50 CFR 
635.27(a)(9)(i) require that Purse seine category underharvests or 
overharvests be subtracted from or added to each individual vessel's 
quota allocation, as appropriate. Based on the estimated amount of 
Reserve that NMFS maintains for the landing of BFT taken during ongoing 
scientific research projects and/or potential overharvests in certain 
categories, NMFS estimates that 209.8 mt of Reserve remains from the 
2003 fishing year. This remaining Reserve quota will be used to 
partially address the Angling category overharvest. For categories with 
under or overharvests from the 2003 fishing year, these initial 
specifications will subtract the overharvest from, or add the 
underharvest to, that quota category for the 2004 fishing year.

Dead Discards

    As part of the BFT rebuilding program, ICCAT recommends an 
allowance for dead discards. The U.S. dead discard allowance is 68 mt. 
The estimate for the 2003 calendar year was used as a proxy to 
calculate the amount to be added to, or subtracted from, the U.S. BFT 
landings quota for 2004. The 2003 calendar year preliminary estimate of 
U.S. dead discards, as reported per the longline discards calculated 
from logbook tallies, adjusted as warranted when observer counts in 
quarterly/geographic stratum exceeded logbook reports, totaled 52.4 mt. 
Estimates of dead discards from other gear types and fishing sectors 
that do not use the pelagic longline vessel logbook are unavailable at 
this time, and thus, are not included in this calculation. As U.S. 
fishing activity is estimated to have resulted in fewer dead discards 
than its allowance, the ICCAT recommendation and U.S. regulations state 
that the United States may add one half of the difference between the 
amount of dead discards and the allowance (i.e., 68.0 mt 52.4 mt = 15.6 
mt, 15.6 mt/2 = 7.8 mt) to its total allowed landings for the following 
fishing year, to individual fishing categories, or to the Reserve 
category. NMFS proposes to allocate the 7.8 mt to the Reserve category 
quota to assist in covering potential overharvests from the previous 
fishing years.
    The 2002 calendar year preliminary dead discard estimate, as 
reported in pelagic longline vessel logbooks and published in 2003 
Final Initial Quota Specifications (68 FR 56783, October 2, 2003), 
totaled 38.0 mt. This preliminary estimate has been revised using the 
longline discards calculated from logbook tallies, adjusted as 
warranted when observer counts in stratum exceeded logbook reports. The 
revised 2002 calendar year dead discard estimate is 41.6 mt.

2004 Proposed Initial Quota Specifications

    In accordance with the 2002 ICCAT quota recommendation, the ICCAT 
recommendation regarding the dead discard allowance, the HMS FMP 
percentage shares for each of the domestic categories, and regulations 
regarding annual adjustments at Sec.  635.27(a)(9)(ii), NMFS proposes 
initial quota specifications for the 2004 fishing year as follows: 
General category - 659.0 mt; Harpoon category - 81.4 mt; Purse Seine 
category - 389.4 mt; Angling category - 65.5 mt; Longline category -

[[Page 71773]]

171.2 mt; and Trap category - 2.3 mt. Additionally, 36.6 mt would be 
allocated to the Reserve category for inseason adjustments, including 
providing for a late season General category fishery, or allocated to 
cover scientific research collection and potential overharvest in any 
category except the Purse seine category.
    Based on the above proposed initial specifications, the Angling 
category quota of 65.5 mt would be further subdivided as follows: 
School BFT 21.0 mt, with 8.1 mt to the northern area (north of 
39[deg]18' N. latitude), 9.1 mt to the southern area (south of 
39[deg]18' N. latitude), plus 3.8 mt held in reserve; large school/
small medium BFT - 42.7 mt, with 20.2 mt to the northern area and 22.5 
mt to the southern area; and large medium/giant BFT - 1.8 mt, with 0.6 
mt to the northern area and 1.2 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 vicinity of the management area boundary and referred 
to as the NED hereafter. 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 proposed 
Longline category quota of 171.2 mt would be subdivided as follows: 
58.2 mt to pelagic longline vessels landing BFT north of 31[deg] N. 
latitude and 63.8 mt to pelagic longline vessels landing BFT south of 
31[deg] N. latitude, and 49.2 mt (24.2 mt from 2003 + 25.0 mt for 2004) 
to account for bycatch of BFT related to directed pelagic longline 
fisheries in the NED. The bycatch allocation by ICCAT for pelagic 
longline vessels in the NED would be allocated to the Longline north 
subcategory. Accounting for landings under this additional quota would 
be maintained separately from other landings under the Longline north 
subcategory. Finally, regulations regarding BFT target catch 
requirements for pelagic longline vessels within the NED do not apply 
until the landings equal the available quota (Sec.  635.23(f)(3)). 
After the available quota has been landed target catch requirements at 
Sec.  635.23(f)(1) will then apply.

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 HMS 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 HMS 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 2004 
coastwide quota for the General category of 659.0 mt, minus 10.0 mt 
reserved for the New York Bight set aside fishery. Therefore, of the 
available 649.0 mt coastwide quota, 389.4 mt would be available in the 
period beginning June 1 and ending August 31, 2004; 194.7 mt would be 
available in the period beginning September 1 and ending September 30, 
2004; and 64.9 mt would be available in the period beginning October 1, 
2004 and ending January 31, 2005.
    In addition to time-period subquotas, NMFS also has implemented 
General category 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 2004 fishing year, NMFS proposes 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, NMFS proposes that persons aboard vessels permitted in 
the General category would be prohibited from fishing, including catch-
and-release and tag-and-release, for BFT of all sizes on the following 
days: all Fridays, Saturdays, and Sundays through January 31, 2005, 
inclusive, while the fishery is open. These proposed RFDs would improve 
distribution of fishing opportunities without increasing BFT mortality.

Catch-and-Release Provision

    Prior to 1998, ICCAT designated quotas for BFT harvested in the 
western Atlantic management area as ``scientific monitoring quotas.'' 
Under this designation, after a quota category had closed, NMFS 
required vessels fishing for BFT to tag-and-release all BFT as a means 
to collect further scientific monitoring data. In 1998, ICCAT 
established a rebuilding plan for western Atlantic BFT and no longer 
referred to BFT quotas as ``scientific monitoring quotas.''
    Currently, permitted recreational and commercial BFT handgear 
vessel owner/operators are required to tag-and-release all BFT that are 
caught after their respective quota categories have been closed. 
Therefore, vessel owner/operators are also required to obtain, possess 
and utilize an approved tagging kit onboard their vessel while engaged 
in directed BFT fishing after a closure has taken place.
    Over the last few years, NMFS has received comments from the public 
that vessel owner/operators are not comfortable in tagging-and-
releasing BFT due to a combination of their inexperience, and concerns 
regarding unintentional injury and mortality of a BFT. NMFS also has 
concerns that the current regulations may lead to unnecessary post-
release mortality associated with anglers, who are inexperienced with 
proper tagging techniques and may improperly place the tag on the BFT, 
unintentionally killing or injuring the fish. Other commenters have 
stated that, on occasion, substantial time delays can be experienced in 
obtaining an approved tagging kit, thus limiting their ability to go 
fishing for BFT.
    Therefore, NMFS proposes to allow vessels participating in the BFT 
recreational and commercial handgear fisheries to practice catch-and-
release after a quota category has been closed. This proposal would 
also allow vessel owner/operators to tag-and-release BFT, but would not 
require them to do so.

Classification

    This proposed rule is published under the authority of the 
Magnuson-Stevens Act and ATCA. The Assistant Administrator for 
Fisheries (AA) has preliminarily determined that the regulations 
contained in this proposed rule are necessary to implement the 
recommendations of ICCAT and to manage the domestic Atlantic HMS 
fisheries.
    The purpose of this proposed action is to: (1) implement the 2002 
ICCAT recommendation regarding the BFT quota, by proposing 2004 
specifications for the BFT fishery that allocates the quota among 
domestic fishing categories, including 25 mt of BFT quota to the 
Longline category, (2) implement General category effort controls, and 
(3) implement a catch-and-release provision for recreational and 
commercial BFT handgear vessels.
    NMFS has prepared a RIR and an IRFA that examine the impacts of the 
selected alternatives discussed previously in this rulemaking. The 
analysis for the IRFA assesses the impacts of the various alternatives 
on the vessels that participate in the BFT fisheries, all of which are 
considered small entities. For the quota allocation alternatives, NMFS 
has estimated the

[[Page 71774]]

average impact of the alternatives 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. This 
increase, in comparison to pre-2002 levels, includes 77.6 mt to be 
redistributed to the domestic fishing categories based on the 
allocation percentages established in the HMS FMP, as well as a set-
aside quota of 25 mt to account for incidental catch of BFT related to 
directed pelagic longline fisheries in the NED. In 2003, preliminary 
annual gross revenues from the commercial BFT fishery were 
approximately $11.5 million. There are approximately 10,914 vessels 
that are permitted to land and sell BFT under four BFT quota 
categories. The four quota categories and their preliminary 2003 gross 
revenues are General ($7,476,461), Harpoon ($772,810), Purse Seine 
($2,546,236), and Incidental Longline ($635,498). Note that all dollars 
have been converted to 1996 dollars using the Consumer Price Index 
Conversion Factors for comparison purposes. The analysis for the IRFA 
assumes that all category vessels have similar catch and gross 
revenues. While this assumption may not be entirely valid, the analyses 
are sufficient to show the relative impact of the various preferred 
alternatives on vessels.
    For the allocation of BFT quota among domestic fishing categories, 
three alternatives were considered: no action, a preferred alternative 
that would allocate the ICCAT-recommended quota to domestic categories 
in accordance with the 2002 ICCAT recommendation and the HMS FMP, and a 
slight variation of the preferred alternative, that includes a 25-mt 
limit on the amount of quota that can accumulate from year-to-year 
within the pelagic longline quota set-aside in the NED.
    The no action alternative would not be consistent with the purpose 
and need for this action, ATCA, and the HMS FMP. It would maintain U.S. 
BFT quota levels at a scale and distribution similar to the 2002 
fishing year and would deny fishermen additional fishing opportunities 
as recommended by the ICCAT, an estimated $1,000,000 in potential, 
additional gross revenues. The 2002 ICCAT quota recommendation 
specified a 1,489.6 mt total quota for the United States, a 102.6 mt 
increase from pre-2002 quota levels. Under ATCA, the United States is 
obligated to implement ICCAT-approved recommendations. The preferred 
alternative would increase the overall quota by 77.6 mt resulting in an 
approximate increase in gross revenues of $750,000, and would also 
create a set-aside quota of 25 mt to account for incidental harvest of 
BFT in the NED by pelagic longline vessels, resulting in a potential 
increase in gross revenues of $250,000. Unharvested quota from this set 
aside would be allowed to roll from one fishing year to the next. The 
preferred alternative is expected to have positive economic impacts for 
fishermen, because of the modest increase in quota. Under the slight 
variation of the preferred alternative, the annual specification 
process would limit the NED set-aside to 25 mt and would not take into 
account any unharvested set-aside quota from the prior fishing year. 
Unharvested quota would not be rolled over from the previous fishing 
year, nor would it be transferred or allocated to other domestic 
fishing categories. This alternative is also expected to have overall 
positive economic impacts for fishermen due to the increase in gross 
revenues associate with the 77.6 mt quota increase.
    For the General category effort controls, two alternatives were 
considered: The preferred 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, series of solid blocks of RFDs, the preferred 
alternative, has had positive economic consequences by avoiding market 
gluts and extending the season as late as possible. Implementing RFDs 
to assist a late season fishery would have positive economic impacts to 
those south Atlantic fishermen, but could have potentially negative 
economic impacts to those northern area fishermen who would have 
otherwise caught and sold fish earlier in the season. However, these 
adverse impacts would be slightly mitigated if northern area fishermen 
are willing to travel south late in the season. Overall, extending the 
season as late as possible would enhance the likelihood of increasing 
participation by southern area fishermen and access to the fishery over 
a greater range of the fish migration.
    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 HMS FMP to implement RFDs 
during the season should catch rates increase. This alternative is 
based on 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 
no RFDs, it is unlikely that there will be enough quota in the General 
category to sustain a late season commercial handgear fishery off south 
Atlantic states especially now that the General category is extended 
through January. Thus, if the 2004 season should be similar to the 2003 
fishery, there may be negative economic impacts to fishermen in 
southern states unless inseason management actions (similar to those in 
2003, i.e., inseason transfers) are taken to directly address these 
concerns and potential impacts.
    For the catch-and-release provision, NMFS considered three 
alternatives: No action (maintain the tag-and-release requirement once 
a handgear quota category has been closed), disallow all fishing for 
BFT once a handgear quota category has been closed, and the preferred 
alternative to allow vessels to catch-and-release BFT once a handgear 
quota category has been closed.
    Although NMFS believes that recreational HMS fisheries have a large 
influence on the economies of coastal communities, even when vessels 
are engaged in tag-and-release or catch-and-release fishing, NMFS has 
little current information on the costs and expenditures of anglers or 
the businesses that rely on them. Based on conversations with 
representatives of the handgear sectors of the BFT fishery, NMFS has 
assessed that the no action alternative would have slightly negative 
economic impacts. This assessment is attributed to vessel owner/
operators, who are not comfortable tagging BFT, or those owner/
operators who are unable to obtain a tagging kit in a timely fashion, 
not taking trips to pursue BFT. The second alternative would have even 
greater negative economic impacts by prohibiting vessels from taking 
trips targeting BFT after a quota is attained. The preferred 
alternative would have positive economic impacts on those associated 
with the BFT handgear fishery. This alternative, would positively 
impact numerous economic aspects of the BFT handgear fishery due to the 
willingness of more vessel owner/operators to actively take trips 
targeting BFT after a closure has taken place. This alternative would 
also allow for the tagging of BFT, but would not require owner/
operators to do so.
    None of the proposed alternatives in this document would result in 
additional reporting, recordkeeping, compliance, or monitoring 
requirements for the public. This proposed rule has also been 
determined not to duplicate,

[[Page 71775]]

overlap, or conflict with any other Federal rules.
    NMFS prepared a draft EA for this proposed rule, and the AA has 
preliminarily concluded that there would be no significant impact on 
the human environment if this proposed rule were implemented. The EA 
presents analyses of the anticipated impacts of these proposed 
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 proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This proposed 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, NOAA Fisheries reinitiated formal 
consultation for all HMS commercial fisheries under section 7 of the 
Endangered Species Act (ESA). A Biological Opinion (BiOp) issued June 
14, 2001, concluded that continued operation of the Atlantic pelagic 
longline fishery is likely to jeopardize the continued existence of 
endangered and threatened sea turtle species under NOAA Fisheries 
jurisdiction. NOAA Fisheries has implemented the reasonable and prudent 
alternatives required by this BiOp. 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 NOAA Fisheries 
jurisdiction. NOAA Fisheries 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, NOAA Fisheries 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. NOAA Fisheries is implementing the other RPMs in compliance 
with the 2004 BiOp. On August 12, 2004, NOAA Fisheries 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. NOAA Fisheries will 
undertake additional rulemaking and non-regulatory actions, as 
required, to implement any management measures that are required under 
the 2004 BiOp. The majority of the measures that will be implemented by 
this current rule are not expected to have adverse impacts. However, 
the 2002 ICCAT recommendation increased the BFT quota which may result 
in a slight increase in effort which could potentially increase the 
number of protected species interactions. Due to current restrictions 
on the BFT fishery and more specifically the pelagic longline fishery, 
NOAA Fisheries does not expect this slight increase in effort to alter 
current fishing patterns.
    The area in which this proposed action is planned has been 
identified as Essential Fish Habitat (EFH) for species managed by the 
New England Fishery Management Council, the Mid-Atlantic Fishery 
Management Council, the South Atlantic Fishery Management Council, the 
Gulf of Mexico Fishery Management Council, the Caribbean Fishery 
Management Council, and the HMS Management Division of the Office of 
Sustainable Fisheries at NMFS. It is not anticipated that this action 
will have any adverse impacts to EFH and, therefore, no consultation is 
required.
    NMFS has determined that the list of actions in this proposed 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 proposed rule 
establishing quota specifications and effort controls will be submitted 
to the responsible state agencies for their review under section 307 of 
the CZMA.

List of Subjects in 50 CFR Part 635

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

    Dated: December 6, 2004.
Rebecca J. Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 635 is 
proposed to be amended as follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

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

    Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.
    2. In Sec.  635.23, paragraphs (a)(2) and (a)(4) are revised to 
read as follows:


Sec.  635.23  Retention limits for BFT.

* * * * *
    (a) * * *
    (2) On an RFD, no person aboard a vessel that has been issued a 
General category Atlantic Tunas permit may fish for, possess, retain, 
land, or sell a BFT of any size class, and catch-and-release or tag-
and-release fishing for BFT under Sec.  635.26 is not authorized from 
such vessel. On days other than RFDs, and when the General category is 
open, one large medium or giant BFT may be caught and landed from such 
vessel per day. NMFS will annually publish a schedule of RFDs in the 
Federal Register.
* * * * *
    (4) To provide for maximum utilization of the quota for BFT, NMFS 
may increase or decrease the daily retention limit of large medium and 
giant BFT over a range from zero (on RFDs) to a maximum of three per 
vessel. Such increase or decrease will be based on a review of dealer 
reports, daily landing trends, availability of the species on the 
fishing grounds, and any other relevant factors. NMFS will adjust the 
daily retention limit specified in paragraph (a)(2) of this section by 
filing with the Office of the Federal Register for publication 
notification of the adjustment. Such adjustment will not be effective 
until at least 3 calendar days after notification is filed with the 
Office of the Federal Register for publication, except that previously 
designated RFDs may be waived effective upon closure of

[[Page 71776]]

the General category fishery so that persons aboard vessels permitted 
in the General category may conduct catch-and-release or tag-and-
release fishing for BFT under Sec.  635.26.
* * * * *
    3. In Sec.  635.26, paragraph (a)(1) is revised to read as follows:


Sec.  635.26  Catch and release.

    (a) * * *
    (1) Notwithstanding the other provisions of this part, a person 
aboard a vessel issued a permit under this part, other than a person 
aboard a vessel permitted in the General category on a designated RFD, 
may fish with rod and reel or handline gear for BFT under a catch-and-
release or tag-and-release program. When fishing under a tag-and-
release program, vessel owner/operators should use tags issued or 
approved by NMFS. If a BFT is tagged, the tag information, including 
information on any previously applied tag remaining on the fish, must 
be reported to NMFS. All BFT caught under the catch-and-release or tag-
and-release programs must be returned to the sea immediately with a 
minimum of injury.
* * * * *
[FR Doc. 04-27166 Filed 12-7-04; 8:45 pm]
BILLING CODE 3510-22-S


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