Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Proposed Rules 71771

Square Building, U.S. Fish and Wildlife 

Service, 4401 North Fairfax Drive, Room 

200 A/B, Arlington, Virginia.

FOR FURTHER INFORMATION CONTACT:

Brian Millsap, Chief, Division of 

Migratory Bird Management, U.S. Fish 

and Wildlife Service, Department of the 

Interior, ms MBSP–4107–ARLSQ, 1849 

C Street, NW., Washington, DC 20240, 

(703) 358–1714.

SUPPLEMENTARY INFORMATION:

Representatives from the Service, the 

Service’s Migratory Bird Regulations 

Committee, and Flyway Council 

Consultants will meet on January 27, 

2005, at 8:30 a.m. to identify 

preliminary issues concerning the 2005–

06 migratory bird hunting regulations 

for discussion and review by the Flyway 

Councils at their March meetings. 

In accordance with Departmental 

policy regarding meetings of the Service 

Regulations Committee attended by any 

person outside the Department, these 

meetings are open to public observation. 

Members of the public may submit 

written comments on the matters 

discussed to the Director.

Dated: November 27, 2004. 

Paul R. Schmidt, 

Assistant Director, Migratory Birds, U.S. Fish 

and Wildlife Service.

[FR Doc. 04–27074 Filed 12–9–04; 8:45 am] 

BILLING CODE 4310–55–P

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.

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-andrelease 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:

• Email: 04BFTSPECS@noaa.gov.

• Federal e-Rulemaking Portal: http:/

/www.regulations.gov.

• Mail: Brad McHale, Highly 

Migratory Species Management 

Division, Office of Sustainable Fisheries 

(F/SF1), NMFS, One Blackburn Dr., 

Gloucester, MA 01930.

• Fax: 978–281–9340.

The public hearing locations are:

1. NOAA Science Center, 1301 EastWest 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 ICCATrecommended 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 

71772 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Proposed Rules 

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 

§ 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 –

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Proposed Rules 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°18′ N. latitude), 9.1 mt to 

the southern area (south of 39°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° N. latitude and 63.8 mt to 

pelagic longline vessels landing BFT 

south of 31° 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 (§ 635.23(f)(3)). 

After the available quota has been 

landed target catch requirements at 

§ 635.23(f)(1) will then apply.

General Category Effort Controls

For the last several years, NMFS has 

implemented General category timeperiod 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-andrelease 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-andrelease 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 

71774 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Proposed Rules 

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 setaside 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-andrelease 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, 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Proposed Rules 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 § 635.23, paragraphs (a)(2) and 

(a)(4) are revised to read as follows:

§ 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 

§ 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 

71776 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Proposed Rules 

the General category fishery so that 

persons aboard vessels permitted in the 

General category may conduct catchand-release or tag-and-release fishing for 

BFT under § 635.26.

* * * * *

3. In § 635.26, paragraph (a)(1) is 

revised to read as follows:

§ 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-andrelease 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