Atlantic Highly Migratory Species; 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan; Amendment 7

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 635

[Docket No. 120328229-4949-02]

RIN 0648-BC09

Atlantic Highly Migratory Species; 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan; Amendment 7

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This final rule implements Amendment 7 to the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) to ensure sustainable management of bluefin tuna consistent with the 2006 HMS FMP and address ongoing management challenges in the Atlantic bluefin tuna fisheries. This final rule also implements minor regulatory changes related to the management of Atlantic HMS. Amendment 7 management measures were developed by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act (ATCA). This final rule: Allocates U.S. bluefin tuna quota among domestic fishing categories; implements measures applicable to the pelagic longline fishery, including Individual Bluefin Quotas (IBQs), two new Gear Restricted Areas, closure of the pelagic longline fishery when annual bluefin tuna quota is reached, elimination of target catch requirements associated with retention of incidental bluefin tuna in the pelagic longline fishery, mandatory retention of legal-sized bluefin tuna caught as bycatch, expanded monitoring requirements, including electronic monitoring via cameras and bluefin tuna catch reporting via Vessel Monitoring System (VMS), and transiting provisions for pelagic and bottom longline vessels; requires VMS use and reporting by the Purse Seine category; changes the start date of the Purse Seine category from July 15 to a date within a range of June 1 to August 15, to be established by an annual action; requires use of the Automated Catch Reporting System by the General and Harpoon categories; provides additional flexibility for inseason adjustment of the General category quota and Harpoon category retention limits; and changes the allocation of the Angling category Trophy South subquota for the Gulf of Mexico. Finally, this rule implements several measures not directly related to bluefin tuna management, including a U.S. North Atlantic albacore tuna quota; modified rules regarding permit category changes; and minor changes in the HMS regulations for administrative or clarification purposes.

DATES:

Effective January 1, 2015, except for § 635.9(b)(2)(ii), (e)(1), which are effective June 1, 2015; and § 635.15(b)(3), (b)(4)(ii), and (b)(5)(i), which are effective January 1, 2016.

ADDRESSES:

Copies of Amendment 7 to the 2006 Consolidated HMS FMP, including the Final Environmental Impact Statement (FEIS), and other relevant documents are available from the HMS Management Division Web site at

http://www.nmfs.noaa.gov/sfa/hms/.

FOR FURTHER INFORMATION CONTACT:

Thomas Warren or Brad McHale at 978-281-9260.

SUPPLEMENTARY INFORMATION:

The U.S. Atlantic tuna fisheries are managed under the 2006 Consolidated HMS FMP and regulations at 50 CFR part 635, pursuant to the authority of the Magnuson-Stevens Act and ATCA. Under ATCA, the Secretary shall promulgate such regulations as may be necessary and appropriate to carry out International Commission for the Conservation of Atlantic Tunas (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). On October 2, 2006, NMFS published in the

Federal Register

(71 FR 58058) final regulations, effective November 1, 2006, implementing the 2006 Consolidated HMS FMP, which details the management measures for Atlantic HMS fisheries, including the incidental and directed Atlantic bluefin tuna fisheries.

Background

A brief summary of the background of this final action is provided below. A more detailed history of the development of these regulations, and the alternatives considered, are described in Amendment 7 to the 2006 Consolidated HMS FMP Final Environmental Impact Statement (Amendment 7 FEIS, August, 2014), which can be found online at the HMS Web site noted above.

NMFS published a proposed rule on August 21, 2013 (78 FR, 52032), which proposed the “preferred alternatives” analyzed in the Draft Amendment 7 Environmental Impact Statement and solicited public comments on the measures, which were designed to address the following objectives: (1) Prevent overfishing of and rebuild bluefin tuna stock, achieve on a continuing basis optimum yield, and minimize bluefin bycatch to the extent practicable by ensuring that domestic bluefin tuna fisheries continue to operate within the overall total allowable catch (TAC) set by ICCAT consistent with the existing rebuilding plan; (2) optimize the ability for all permit categories to harvest their full bluefin quota allocations, account for mortality associated with discarded bluefin in all categories, maintain flexibility of the regulations to account for the highly variable nature of the bluefin fisheries, and maintain fairness among permit/quota categories; (3) reduce dead discards of bluefin tuna and minimize reductions in target catch in both directed and incidental bluefin fisheries, to the extent practicable; (4) improve the scope and quality of catch data through enhanced reporting and monitoring to ensure that landings and dead discards do not exceed the quota and to improve accounting for all sources of fishing mortality; and (5) adjust other aspects of the 2006 Consolidated HMS FMP as necessary and appropriate, including northern albacore tuna quota implementation.

On August 22, 2013 (78 FR 52123), NMFS published a notice in the

Federal Register

informing the public of the date and locations of public hearings on Amendment 7. From August 2013 to January 2014, NMFS conducted 11 public hearings, and consulted with the New England Fishery Management Council, the Gulf of Mexico Management Council, and the South Atlantic Fishery Management Council. The hearings were held in diverse locations in Atlantic and Gulf of Mexico coastal states. On August 30, 2013, the Environmental Protection Agency published a Notice of Availability of the draft environmental impact statement (DEIS) (78 FR 53754; August 30, 2013).

The August 21, 2013, Amendment 7 proposed rule set the end of the public comment period as October 23, 2013, but given the length and complexity of the rule, and to provide additional time for consideration of public comments in light of the November meeting of ICCAT, the end of the comment period was extended to December 10, 2013 (78 FR 57340; September 18, 2013). Subsequently, due to the government shutdown in October 2013, and NMFS' inability to respond to constituents

during that time frame and based on requests for an extension due to the complexity of the measures covered in the DEIS, NMFS again extended the end of the public comment period until January 10, 2014, to provide additional opportunity for informed comment (78 FR 75327; December 11, 2013). On December 26, 2013, NMFS published a

Federal Register

notice announcing a public hearing conference call and webinar to provide additional opportunity for the public from all geographic areas to comment (78 FR 78322).

The comments received on Draft Amendment 7 and its proposed rule, and responses to those comments, are summarized below in the section labeled “Response to Comments.”

The bluefin tuna fishery is managed principally through a quota. Currently, NMFS implements and codifies the ICCAT-recommended U.S. quota through rulemaking, annually or bi-annually depending on the length of the relevant ICCAT recommendation. Also through rulemaking (the “quota specifications process”) NMFS annually adjusts the U.S. baseline bluefin quota to account for any underharvest or overharvest of the adjusted U.S. quota from the prior year; specifies subquotas that result from application of the 2006 Consolidated HMS FMP allocations; and adjusts subquotas as appropriate following consideration of domestic management needs. NMFS must account not only for landings but for bluefin tuna discarded dead. NMFS estimates and accounts for dead discards in the pelagic longline fishery, which cannot target bluefin tuna but catches them while targeting swordfish and other tunas.

National Standard 1 requires that “conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.” The Magnuson-Stevens Act defines “optimum yield” as the amount of fish that, among other things, provides for rebuilding to a level consistent with producing the maximum sustainable yield from the fishery. In ATCA, Congress also directed NMFS to manage the bluefin fishery to ensure that NMFS provides U.S. fishing vessels “with a reasonable opportunity to harvest such allocation, quota, or at such fishing mortality level. . . .” This rule builds upon an extensive regulatory framework for management of the domestic bluefin fishery pursuant to the 20-year rebuilding program adopted in the 1999 FMP and continued under the 2006 Consolidated HMS FMP. As described below, the final rule measures were designed to allow fishery participants to fully harvest, but not exceed, the U.S. bluefin quota by refining the existing management tools. NMFS is implementing a detailed, multi-level approach to resolving challenges in administering and carrying out the current quota system, which, if left unaddressed, may otherwise result in overharvests of the U.S. quota in the future. These final rule measures directly support the goals of reducing overfishing, rebuilding the western bluefin stock, and achieving optimum yield by ensuring that the fishery continues to be managed within the ICCAT-approved TAC, and consistent with National Standard 1's requirements.

Northern Albacore Tuna

Amendment 7 also includes measures for management of north Atlantic albacore (or “northern albacore”) tuna. Since 1998, ICCAT has adopted recommendations regarding the northern albacore tuna fishery. A multi-year management measure for northern albacore tuna was first adopted in 2003, setting the TAC at 34,500 mt. ICCAT's Standing Committee on Research and Statistics (SCRS) assessed the northern albacore tuna stock in 2009 and concluded that the stock continues to be overfished with overfishing occurring, recommending a level of catch of no more than 28,000 mt to meet ICCAT management objectives by 2020. In response, in 2009 ICCAT established a North Atlantic albacore tuna rebuilding program via Recommendation 09-05, setting a 28,000mt TAC and including several provisions to limit catches by individual ICCAT parties (for major and minor harvesters) and reduce the amount of unharvested quota that could be carried forward from one year to the next, from 50 percent to 25 percent of a party's initial catch quota. The 2009 recommendation expired in 2011.

In 2011, ICCAT Recommendation 11-04 again set a TAC of 28,000 mt for 2012 and for 2013 and contained specific recommendations regarding the North Atlantic albacore tuna rebuilding program, including an annual TAC for 2012 and 2013 allocated among the European Union, Chinese Taipei, the United States, and Venezuela. The U.S. quota for 2012 and 2013 is 527 mt. The recommendation limits Japanese northern albacore tuna catches to 4 percent in weight of its total Atlantic bigeye tuna longline catch, and limits the catches of other ICCAT parties to 200 mt. The recommendation also specifies that quota adjustments for a given year's underharvest or overharvest may be made for either 2 or 3 years from the subject year (

i.e.,

adjustments based on 2013 catches would be made in either 2015 or 2016). Pursuant to ATCA and the Magnuson-Stevens Act, in this final rule NMFS implements the ICCAT-recommended U.S. quota and establishes provisions to adjust the base quota for over or underharvests via annual quota specifications.

Implemented Measures

The rule finalizes most of the management measures that were contained in the proposed rule for Amendment 7 as they were proposed, with several exceptions. This section provides a summary of the final management measures being implemented by Amendment 7 and notes certain changes from the proposed rule to this final rule that may be of particular interest to the regulated community. These include changes to the basis for annual purse seine quota availability, changes to two Gear Restricted Areas (GRAs), changes to the range of years used in the performance metrics and BFT quota allocations formula, changes to VMS requirements, and changed to effective dates. Measures that are different from the proposed rule, or measures that were proposed but not implemented, are described in detail in the section titled, “Changes from the Proposed Rule.”

1. Quota Reallocation

Codified Quota Reallocation

The Longline category's percentage of the baseline U.S. bluefin tuna quota remains at 8.1 percent, but each year the Longline category quota will be increased by a net amount of 62.5 mt based on deductions from the other quota categories, to more fully and predictably account for Longline category incidental bluefin catch, including both dead discards and landings. This measure does not modify the previously-codified category quota allocation percentages. Rather, NMFS will calculate the bluefin quota for each of the quota categories through the following process: First, 68 mt will be subtracted from the baseline annual U.S. BFT quota for reallocation to the Longline category quota. All quota categories will be reduced consistent with the allocation percentages codified at 50 CFR 635.27. Second, the remaining quota will be divided among the categories according to those allocation percentages. Third, the 68 mt derived in Step One from all categories, including the Longline category, will be added to the Longline category quota. The net

amount of quota increase for the Longline category will be 62.5 mt.

Thus, 32.0 mt will be deducted from the General category (

i.e.,

47.1 percent of 68 mt), 2.7 mt from the Harpoon category (3.9 percent), 12.6 mt from the Purse Seine category (18.6 percent), 5.5 mt from the Longline category (8.1 percent), 13.4 mt from the Angling category (19.7 percent), and 1.7 mt from the Reserve category (2.5 percent). This equals 68 mt, which will be added to the Longline category, resulting in a net increase to the Longline category of 62.5 mt (68 mt minus the Longline category's contribution of 5.5 mt). If, for example, the baseline annual U.S. quota is 923.7 mt in a given year, then 403.0 mt would be allocated to the General category (

i.e.,

47.1 percent of 855.7 mt), 33.4 mt to the Harpoon category (3.9 percent), 159.1 mt to the Purse Seine category (18.6 percent), 137.3 mt for the Longline category (8.1 percent plus the 62.5 mt), 168.6 mt for the Angling category (19.7 percent), and 21.4 mt for the Reserve category (2.5 percent)

This measure provides additional quota to the Longline category to facilitate the ability to account for both landings and dead discards within the Longline category quota, consistent with the historical separate dead discard allocation, yet limits the amount of reallocation to the Longline category if the total U.S. quota increases. For more information on the historical dead discard allocation and the associated rationale for the 68 mt augmentation of the Longline category, see the Codified Reallocation section (2.1.2) of the FEIS.

Annual Quota Reallocation

NMFS will annually adjust the Purse Seine quota, using a formula based on the weights of reported landings and estimated weights of dead discards (calculated from reported lengths) by purse seine fishery participants in the previous year. Twenty-five percent of each Purse Seine category participant's base quota will be available as a minimum to each Purse Seine fishery participant annually. Beyond that amount, quota will be available to such participants based on the fishery participant's catch in the previous year. Any quota not allocated to the Purse Seine category participants will be allocated to the Reserve category for possible redistribution consistent with specified regulatory criteria to other quota categories, and to support other objectives of the 2006 Consolidated HMS FMP. By moving portions of the unused Purse Seine quota to the Reserve category annually, this measure will give NMFS more flexibility in administering the quota system.

Based on public comment, this measure was modified from the proposed rule so that the annual formula for quota availability is based on the previous year's individual purse seine participant's catch, rather than based on the catch of the Purse Seine category as a whole. This modification ties quota allocation more closely to the individual participants catch and creates incentive for fishery participants to remain active in the fishery. Without this modification, individual allocations would be tied to the catch of the other vessels in the fishery, which could have unfair results if catch were to vary greatly among the vessels. For example, in a year where overall category catch were low, an individual purse seine participant could have a relatively low amount of quota available for use, even if that participant landed a substantial portion of its allocation during the previous year.

Annually, NMFS will make a determination regarding the quota available for each purse seine participant for the year, based on the bluefin catch by such participants in the previous year. Purse Seine participants will have available for use either 100 percent, 75 percent, 50 percent, or 25 percent of their base quota, according the following allocation criteria: If the individual catch is between 0 and 20 percent of the individual base quota in year one, the Purse Seine fishery participant will have available for use 25 percent of their base quota in year two, and 75 percent of their quota will be available to the Reserve Category for that year. If the individual catch is greater than 20 percent and up to 45 percent of their individual base quota in year one, the Purse Seine fishery participant will be allocated 50 percent of their quota in year two, and 50 percent of their quota will be available to the Reserve Category for that year. If the individual catch is greater than 45 percent and up to 70 percent of their base quota in year one, the Purse Seine fishery participant will have available for use 75 percent of their individual base quota in year two, and 25 percent of their quota will be available to the Reserve Category for that year. If the individual catch is greater than 70 percent of their base quota in year one, the Purse Seine fishery participant will have available for use 100 percent of their baseline quota in year two, and no quota will be available to the Reserve Category for that year. These thresholds (>20 percent, >45 percent, >70 percent) will apply following the same pattern in years beyond year two, with each year's quota reflecting the previous year's catch. In summary, if Purse Seine fishery participants catch a large portion of their individual allocated base quota in one year, they have available for use a large portion of their base quota in the next year. If a Purse Seine fishery participant's catch is low in one year, a larger portion of their Purse Seine base quota becomes available for other management purposes. The Purse Seine quota available would not be “locked-in” at a low level because the criteria are structured to enable increased utilization of available quota. For example, if the catch in year one is between 0 and 20 percent of their individual year one baseline Purse Seine quota, the Purse Seine fishery participant would have available for use 25 percent of their individual baseline quota in year two. If, in year two, the individual catch is greater than 20 percent of their individual baseline quota, but still within their individual annual allocation (

i.e.,

catch is between 20 percent and 25percent), the Purse Seine fishery participant would have available for use 50% of their individual baseline quota in year three. The Purse Seine participants catch levels and allocation levels have been staggered to allow for an increase in allocation in the following year, without causing the Purse Seine fishery participant to exceed the current year's allocation to do so.

This measure balances the need to provide the Purse Seine category participants a reasonable amount of fishing opportunity in a predictable manner, while making use of quota that may otherwise be unused. As described under “Modifications to the Reserve Category,” quota that is available to the Reserve Category may be utilized in a variety of ways to meet multiple objectives. NMFS will annually calculate the Purse Seine catch for that year and publish a notice in the

Federal Register

regarding the amount of quota that would be allocated to the Purse Seine fishery participants, as well as the corresponding amount allocated to the Reserve category and any disposition of the quota from the Reserve category for the subsequent year made at that time. After the initial adjustment, NMFS may make additional modifications to the Purse Seine quota inseason in accordance with the criteria for inseason adjustments specified at § 635.27(a), or make subsequent use of quota from the Reserve category.

Modifications to the Reserve Category

This measure gives NMFS management flexibility by augmenting the amount of quota in the Reserve category under certain circumstances

and adds new criteria to the list of determination criteria NMFS considers in redistributing quota to or from the Reserve category, to be responsive to the current conditions in the fisheries and facilitate adaptation to future changes in the fisheries. The potential sources of quota for the Reserve category on top of its baseline allocation of 2.5 percent are: (1) Available underharvest of the U.S. quota that is allowed to be carried forward; and (2) unused Purse Seine quota, under the Annual Quota Reallocation measure described above. For example, under the Annual Quota Reallocation, NMFS will annually adjust the purse seine quota, using a formula based on the weights of reported landings and estimated weights of dead discards (calculated from reported lengths) by each Purse Seine fishery participants in the previous year. Any remaining amount of Purse Seine quota will then be reallocated to the Reserve category for that subsequent year. NMFS could utilize quota from the Reserve category inseason after considering defined criteria and objectives. NMFS adds five criteria to the existing nine criteria to consider when making inseason or annual quota adjustments. The five new criteria, added to § 635.27(a)(8)(1)-(9) are: (10) Optimize fishing opportunity; (11) account for dead discards; (12) facilitate quota accounting; (13) support other fishing monitoring programs through quota allocations and/or generation of revenue; and (14) support research through quota allocations andr generation of revenue.

These modifications to the Reserve category will increase management flexibility in administering the quota system in a way that takes into account fluctuations in the characteristics of the fishery.

2. Gear Restricted Areas

Modified Cape Hatteras Gear Restricted Area, With Conditional Access

This final rule establishes a GRA off Cape Hatteras, NC, and limits access to this area for vessels fishing with pelagic longline gear during the 5-month period from December through April. The shape of the GRA has been modified from the proposed rule to remove the southeastern corner of the defined geographic area. This change was to avoid unintended effects on fishing outside the closed area that would have occurred if the action were implemented as proposed because it did not account for the effect of the prevailing currents on how pelagic longline gear drifts in that area.

Under this management measure, NMFS annually will grant qualified vessels conditional access to this GRA to fish with pelagic longline gear. Access will be granted based on a formula consisting of the following metrics: Ratio of bluefin tuna interactions to designated species catch, compliance with the Pelagic Observer Program requirements, and compliance with HMS logbook reporting requirements. Vessels will not qualify to fish in the area with pelagic longline gear if they have not demonstrated their ability to avoid bluefin tuna and/or comply with reporting and monitoring (observer) requirements. Non-qualifying vessels will be allowed to use other gear types to fish for non-bluefin HMS species authorized for use by pelagic longline vessels, such as buoy gear, green-stick gear, or rod and reel, in the area during the months of the restriction (December through April), but they may not fish with pelagic longline gear in during those months. Although originally proposed in the Proposed Rule, the final rule does not allow non-qualifying vessels access to the GRA to fish under the General category regulations and target bluefin (discussed further in the Comments and Responses). The principal objective of conditional access to the GRA is to balance the objective of reducing dead discards with the objective of providing reasonable fishing opportunity. The second objective is to provide strong incentives to modify fishing behavior to avoid bluefin tuna and reduce dead discards, as well as improve compliance with the logbook reporting and observer requirements. This regulatory approach is based on the fact that, historically, relatively few vessels have consistently been responsible for the majority of the bluefin tuna dead discards within the Longline category. Conditioning access on compliance with reporting and monitoring requirements reflects the critical importance of fishery data to the successful management of the fisheries.

The initial evaluation of performance metrics will be based upon data from 2006 through 2012, and subsequent “performance scores” will be based upon the most recent complete three-consecutive-year period for which data are available. In a situation where an Atlantic Tunas Longline permit has been transferred from one vessel to another, or there has been an ownership change of a permitted vessel, the relevant vessel fishing history used for the calculation of the performance score regarding access to the Cape Hatteras GRA remains with the vessel. As further explained in the Response to Comments below (Comment 26), NMFS modified the relevant historical time period from the proposed rule (which was 2006-2011). Atlantic Tuna Longline permit holders will be notified annually of the status of their relevant vessel, and only aggregated information regarding the vessel status will be made public. Atlantic Tuna Longline permit holders will be able to appeal their relevant vessel performance scores to NMFS by submitting a written request to appeal, indicating the reason for the appeal and providing supporting documentation for the appeal (

e.g.,

copies of landings records and/or permit ownership, Pelagic Observer Program information, logbook data, etc.). NMFS will evaluate the appeal based upon the following criteria: (1) The accuracy of NMFS records regarding the relevant information; and (2) correct assignment of historical data to the vessel owner/permit holder. Such permit holders may also appeal on the basis of changes in vessel ownership or permit transfers. Appeals based on hardship factors will not be considered. See below for more information on appeals.

NMFS will have the authority to terminate access for all pelagic longline vessels or individual pelagic longline vessels to the GRA via inseason action to address issues including: (1) Failure to achieve or effectively balance the objective of reducing dead discards with the objective of providing fishing opportunity; (2) bycatch of bluefin tuna or other HMS species that may be inconsistent with the objectives or regulations or the 2006 Consolidated HMS FMP, or ICCAT recommendations; or (3) bycatch of marine mammals or protected species that is inconsistent with the Marine Mammal Protection Act (MMPA), Pelagic Longline Take Reduction Plan (PLTRP), or the 2004 Biological Opinion (BiOP).

The performance metric formula will enable qualified vessels to continue to fish in the Modified Cape Hatteras GRA, yet will substantially reduce bluefin tuna dead discards by precluding fishing in the GRA by those with a history of high bluefin tuna interaction in relation to other designated species catch. In order to characterize vessel performance in a manner that is fair, consistent, and feasible to administer, the performance metric formula is based on relatively simple, objective, and quantifiable information. For each of the three performance metrics, a vessel will be scored on a scale of 1 to 5, with 5 reflecting better performance. Vessels with a ratio of bluefin tuna interactions to designated species catch of 1 will not be allowed to fish in the Modified Cape Hatteras GRA using pelagic longline

gear. If a vessel's Pelagic Observer Program Compliance score is 2 or less, that vessel will not be allowed to access the area and fish with pelagic longline gear, unless the vessel's logbook compliance score is 4 or 5.

The performance metric formula will reflect bluefin tuna interactions as measured by the ratio of the number of bluefin tuna interactions (landings, dead discards, and live discards, in number of fish) to the weight of designated species landings (in pounds). These designated species will consist of the more common marketable catch harvested by pelagic longline vessels: Swordfish; yellowfin, bigeye, albacore, and skipjack tunas; dolphin; wahoo; and porbeagle, shortfin mako, and thresher sharks. The use of a ratio incorporating both designated species landings and bluefin tuna interactions provides a metric that is intended to eliminate bias resulting from the differences among vessels in size or fishing effort.

The Pelagic Observer Program metric reflects compliance with requirements regarding communications, and other aspects of observer deployment. The scoring system is designed to be neutral with respect to valid reasons that a vessel was selected by the observer program but did not take an observer, and designed to weigh trips that were not observed due to noncompliance with the communication requirements more heavily than those that were not observed due to noncompliance with the safety and accommodation requirements. The logbook reporting metric reflects compliance with the requirement that the vessel owner/operator must submit the logbook forms postmarked within 7 days of offloading the catch, and, if no fishing occurred during a month, must submit a no-fishing form postmarked no later than 7 days after the end of that month.

Spring Gulf of Mexico Pelagic Longline Gear Restricted Areas

This final rule establishes two GRAs in the Gulf of Mexico and limits access to these areas for vessels fishing with pelagic longline gear during the 2-month period from April through May to reduce dead discards and protect bluefin tuna on their spawning grounds, while maintaining fishing opportunities for pelagic longline vessels as appropriate. As described in the Response to Comments below (Comments 52 and 53), the size and location of the geographic area of the GRA has been modified from the proposed rule to take into account the best available information about the location of bluefin interactions (eastward trend), the high variability of bluefin tuna distribution, the economic importance of the fishery, and other factors.

Other gear types authorized for use by pelagic longline vessels such as buoy gear, green-stick gear, or rod and reel are allowed in these areas, provided the vessel abides by any rules/regulations that apply to those gear types

Transiting Closed Areas

This final rule allows vessels with an Atlantic Tunas Longline permit, Swordfish Incidental or Directed Limited Access permit, or a Shark Limited Access permit fishing with bottom or pelagic longline gear to transit areas that are closed or restricted to such gear, if they remove and stow the gangions, hooks, and buoys from the mainline and drum. No baited hooks are allowed. The specific closed and restricted areas to which this transiting provision applies include those established by this rule (Spring Gulf of Mexico GRAs and Modified Cape Hatteras GRA), as well as the following pelagic longline closed areas in effect: Northeastern U.S. Closure, Northeast Distant Restricted Fishing Area, Charleston Bump, East Florida Coast Closed Area, and DeSoto Canyon Closed Area. This measure will allow vessels to transit the following bottom longline closed areas in effect: Mid-Atlantic Shark, Snowy Grouper Wreck, Northern South Carolina, Edisto, Charleston Deep Artificial Reef, Georgia, North Florida, St Lucie Hump, East Hump, Madison-Swanson, Steamboat Lumps, and Edges 40 Fathom Contour.

This regulatory provision reduces travel costs by allowing more direct routes of travel, and addresses the safety-at-sea concern associated with the requirement to steam around restricted areas.

3. Quota Controls

NMFS Closure of the Pelagic Longline Fishery

Under measures adopted in the final rule, the pelagic longline fishery will close (

i.e.,

use of pelagic longline gear is prohibited) when the total Longline category quota is reached, projected to be reached or exceeded, or when there is high uncertainty regarding the estimated or documented levels of bluefin tuna catch. These closures will help prevent overharvest of the Longline category quota and prevent further discards of bluefin tuna. When NMFS projects that the quota will be reached, it will file a closure action with the Office of the Federal Register for publication. Vessels will be required to offload all bluefin tuna prior to the closure date/time. Criteria NMFS will consider include those listed under § 635.27(a)(8) as well as: Total estimated bluefin tuna catch (landings and dead discards) in relation to the quota; estimated amount by which the bluefin tuna quota might be exceeded; usefulness of data relevant to monitoring the quota; uncertainty in the documented or estimated dead discards or landings of bluefin tuna; amount of bluefin tuna landings or dead discards within a short time; effects of continued fishing on bluefin tuna rebuilding and overfishing; provision of reasonable opportunity for pelagic longline vessels to pursue the target species; variations in seasonal distribution, abundance or migration patterns of bluefin tuna; and other relevant factors. NMFS will use the best available data to calculate the most recent, complete, and available estimate of dead discards on a fishery-wide basis consistent with current regulations. Best available data may include, among other things, vessel-based reports, electronic monitoring data, and observer data, as appropriate.

Individual Bluefin Quotas (IBQs)

This final rule implements an IBQ management system, which is summarized and then described in further detail below.

Summary of the IBQ Program

NMFS is implementing an IBQ Program pursuant to section 303A of the MSA, which authorizes development of limited access privilege programs (LAPP). A LAPP creates permits, which are issued for a period of not more than 10 years, to harvest a quantity of fish expressed by a unit(s) representing a portion of the total allowable catch that may be received or held for exclusive use by a person. Section 303A(c), 16 U.S.C. 1853a, identifies the requirements for such a program (note that the referendum requirements of section 303A(c)(6)(D) are inapplicable to this program for the Atlantic HMS fisheries). This final rule implements IBQs for vessels permitted in the Atlantic Tunas Longline category (provided they also hold necessary limited access swordfish and shark permits). Specifically, the IBQ Program requires vessels fishing with pelagic longline gear to account for bluefin tuna landings and dead discards using IBQ allocation (obtained through shares or leases of allocation), and prohibits the use of pelagic longline gear when the vessel's IBQ allocation has been caught. An IBQ share is a percentage of the total available Longline quota. Thus, if the total available Longline quota is modified as a result of an ICCAT

recommendation and the Longline quota is changed as a result, the share (specific percentage) associated with an eligible permit would not change, but would result in a modified amount of IBQ allocation (mt or equivalent pounds).

The Northeast Distant Area (NED) is a distinctly managed geographic area due to the specification of a separate ICCAT quota relative to the rest of the pelagic longline fishery and is not managed under the full IBQ Program restrictions. However, there are provisions of the IBQ Program that will apply to vessels fishing with pelagic longline gear in the NED. For example, vessels will be required to have the minimum IBQ allocation to operate in the NED starting in 2016 and when NED bluefin quota has been exhausted, permitted vessels must abide by all the requirements of the IBQ Program.

The IBQ Program is a suite of management measures intended to work together. An IBQ share is the percentage of the Longline category quota that is associated with an eligible vessel, based upon the IBQ share formula and the relevant vessel history, and an IBQ allocation is the amount (mt) of bluefin tuna quota that is distributed to a permitted vessel, based upon the relevant IBQ share, and the annual Longline category quota. Eligible pelagic longline vessels will receive one of three IBQ share percentages (1.2%, 0.6%, or 0.37%), which must be used by individual vessels to account for all their bluefin tuna landings and dead discards. Shares and allocations are designated as either Gulf of Mexico (GOM) or Atlantic (ATL). Vessels are prohibited from using Atlantic allocation to account for bluefin tuna catch in the Gulf of Mexico, thereby limiting potential shifts in effort. Specifically, a vessel with bluefin catch in the Gulf of Mexico may not use Atlantic allocation to account for such catch. However, vessels may use Gulf of Mexico allocation to account for bluefin catch in both the Gulf of Mexico and Atlantic. Allocations may be leased annually by Atlantic Tunas Longline category permit holders or Purse Seine category participants, and a minimum amount of allocation is required for a pelagic longline vessel to depart on a trip in the Atlantic (0.125 mt) using pelagic longline gear. A higher minimum amount of quota (allocation) is required for a pelagic longline vessel to depart on a fishing trip in the Gulf of Mexico (0.25 mt). A pelagic longline vessel may not use Atlantic allocation to satisfy the minimum share requirement for a fishing trip in the Gulf of Mexico. If a vessel retains legal sized bluefin tuna in excess of its allocation (“quota debt”), it may land the fish, but must lease additional IBQ allocation from another vessel to account for the excess catch, and is not allowed to fish with pelagic longline gear until the quota debt is balanced in the system (is accounted for) and the minimum allocation required for a vessel to depart on a trip is acquired. A vessel's IBQ allocation cannot carry-over from one year to the next, but if a vessel is unable to satisfy its quota `debt' in a particular fishing year, quota will be deducted from the vessel's allocation during the subsequent year.

Although temporary leasing of IBQ allocation can occur, no permanent sale of IBQ shares is allowed at this time, to reduce risks for permit holders during the initial stages of the IBQ Program, when the market for bluefin tuna quota shares is new and uncertain. Measures to allow permanent sale of bluefin tuna quota shares may be implemented in the future through separate proposed and final rulemaking. This will allow time for IBQ fishermen to familiarize themselves with the IBQ Program and market for bluefin tuna shares.

As described in more detail below, NMFS is implementing an internet-based system to track bluefin tuna catch (pelagic longline and purse seine), and the use and leases of IBQ allocation. VMS must be used by vessel operators to report bluefin tuna catches to increase the timeliness of dead discard data; and electronic monitoring (cameras and associated equipment) are required on pelagic longline vessels as one element of the monitoring program.

The IBQ Program will be evaluated after 3 years, and NMFS will implement a cost recovery program through separate rulemaking.

What vessels are eligible to receive initial bluefin tuna quota shares?

Vessels must meet two requirements to be eligible to receive IBQ shares: (1) Vessels must have a valid Atlantic Tunas Longline category permit; and (2) vessel must be deemed to be “active”. Vessels that made at least one set using pelagic longline gear between 2006 and 2012 (based on pelagic longline logbook data) are defined as “active” This date range includes 2012, and therefore is one year longer than that proposed to ensure that recent participants in the fishery are defined as “active.” For the purpose of IBQ share eligibility, a “valid Atlantic Tunas Longline category permit” is one held as of the date the proposed rule was published, which was August 21, 2013.

Vessels with valid Atlantic Tunas Longline permits that do not meet the initial eligibility criteria may lease bluefin tuna IBQ allocation from IBQ allocation holders. Permits that are not associated with a vessel, such as a permit characterized as “No Vessel ID,” are not eligible for an initial IBQ share but would be eligible to receive IBQ allocation (through a lease) if and when the permit is reassociated with a vessel. Such a vessel would be required to lease IBQ allocation before fishing with pelagic longline gear. New entrants to the fishery must either obtain an Atlantic Tunas Longline permit with associated quota share, or if the valid permit did not have quota share, obtain bluefin tuna quota through lease/sale to fish.

How much bluefin tuna quota does each eligible vessel get?

A vessel's IBQ share of the Longline quota is based upon two elements: The amount of bluefin tuna caught between 2006 and 2012, and the amount of designated species landings (

i.e.,

swordfish; yellowfin, bigeye, albacore, and skipjack tunas; dolphin; wahoo; and porbeagle, shortfin mako, and thresher sharks). As discussed below in the “Response to Comments” (Comment 76), this date range includes 2012, and therefore is one year longer than that proposed to consider the most recent fishing activity of vessels, and to be inclusive regarding the important elements. More specifically, the two factors that are the basis of the allocation formula are: (1) Historical bluefin tuna catch (from vessel logbook data) expressed as ratio of the number of bluefin tuna interactions to `designated species' landings; and (2) `designated species' landings (from the NMFS dealer data (weigh-out slips) and logbook information). The use of these two factors in the quota share allocation formula is intended to acknowledge past bluefin tuna avoidance, ensure a fair initial allocation, and consider the diversity in vessel fishing patterns and harvest characteristics. Past fishing that resulted in fewer bluefin tuna interactions will result in larger IBQ shares of bluefin tuna. Landings of designated species are an indicator of both the level of fishing effort and activity as well as vessel success at targeting those species and minimizing bluefin bycatch interactions. This method incorporates the rate of historical bluefin tuna interactions but also includes the amount of designated species landings, recognizing that greater levels of fishing activity are likely to be correlated with a greater number of bluefin tuna interactions.

The specific IBQ allocation formula is as follows: Because the bluefin tuna interactions to designated species

landings ratio is very small, designated species landings were multiplied by 10,000 in order to derive a ratio that is more practical (

i.e.,

0.95 instead of 0.000095). In order to combine the two metrics, scores were assigned to each metric (the bluefin tuna catch to designated species landings ratio and historical designated species landings) as described below. Active vessels were sorted into three categories, using total designated species landings from 2006 through 2011, based on percentiles of landings from lowest to highest (low, medium, and high, 0 to <33 percent; 33 to <66 percent and 66 to 100 percent, respectively). Similarly, the active vessels were sorted according to the ratio of bluefin interactions to HMS landings, from lowest to highest. For example, a vessel with a 2006-2011 weight of designated species landings of greater than or equal to 367,609 lb (the 66 to 100th percentile of landings) would be placed in the “High” category and assigned a score of 3 (the highest score). In contrast, a vessel with a total designated species landing of only 95,000 pounds for 2006 through 2011 would receive a designated species landings score of 1. A vessel with a bluefin to designated species landings ratio of less than 0.2884 (66 to 100th percentile of bluefin to designated species landings ratios), would place in the top category and receive a bluefin to designated species landings ratio score of 3. A low ratio indicates relatively few bluefin interactions and therefore receives a high score.

Finally, the two scores were combined to form the basis of the allocation. For each vessel, the score for designated species landings was added to the score for bluefin to designated species ratio. For example, if a vessel scored in the “High” category for both designated species landings and bluefin to designated species landings its combined score would be 6 (3 + 3). If a vessel scored High for bluefin ratio, but Low for designated landings, it would be scored a 4 (1 + 3) and it would be placed in the Medium rating score category. Vessels assigned to a particular category will be allocated the same percentage share.

Vessels are allocated shares of 1.2%, 0.6%, or 0.37% of the Longline category quota. For 2015 (unless the U.S. quota is modified by ICCAT in 2014), based on a revised baseline Longline category bluefin tuna quota of 137 mt (baseline plus 62.5 mt), vessels will be allocated 1.64 mt, 0.82 mt, or 0.51 mt of bluefin tuna, respectively. These specific allocations are larger than those proposed because the actual number of eligible vessels was less than the number of eligible vessels analyzed at the proposed rule stage. The number of eligible vessels determined by the proposed rule was higher because the proposed rule analysis included permits that were not associated with vessels at the time of the publication of the proposed rule (August 21, 2013), and did not reflect both eligibility criteria. Allocation among fewer eligible vessels increases the allocation amount per vessel. The rationale for this measure is to implement criteria that reflect participation in the fishery. By allocating only to “active” vessels, the measure will facilitate continued participation in the fishery by vessels that have made past investments in the fishery. Permitted vessels that do not meet the initial eligibility criteria necessary to receive bluefin quota share allocation will still be eligible to obtain quota through a lease of IBQ allocation. The criteria did not include 2013 or 2014 because the DEIS and FEIS, respectively, were being written, during those years, and there were limitations on the availability of finalized data. Availability of finalized logbook and dealer data during 2013 and 2014 was limited to 2011 and 2012 data, respectively.

As described below, under “Appeal of Initial IBQ Shares,” when NMFS determines that all requests for appeal have been resolved, NMFS may adjust all IBQ shares as necessary to accommodate permitted holders that have been deemed eligible or provided an increased IBQ share through the appeals process.

All bluefin tuna quota allocated to Atlantic Tunas Purse Seine participants is also designated as “Atlantic,” subject to the restriction that it may only be used in the Atlantic (by either a Purse Seine vessel or via a lease to a pelagic longline vessel).

If a vessel has fishing history in both the Gulf of Mexico and Atlantic, it may receive quota shares of both the Gulf of Mexico and Atlantic, depending upon the amount of quota share and the proportion of fishing history in the two areas. A relatively small percentage of sets in one area will not be reflected in the quota share. If a vessel would be allocated less than a minimum share amount for a particular area (

i.e.,

less than 0.125 mt for the Atlantic or less than 0.25 mt for the Gulf of Mexico), then no allocation will be designated for that area and all of the permit holder's share would be designated to the other area (Atlantic or Gulf of Mexico). For example, if a vessel is eligible for an allocation of 0.51 mt, and historically landed 10 percent of their catch in the Gulf of Mexico, the vessel would receive an allocation of 100 percent “Atlantic” quota (and none designated as “Gulf of Mexico”) because 10 percent of 0.51 mt (.005 mt) is less than the minimum share required to fish in the Gulf of Mexico (0.25 mt). Owners of vessels with a valid Atlantic Tunas Longline category permit will be sent certified letters informing them of their IBQ share and resultant allocation. In determining initial quota share eligibility and calculating the initial quota share NMFS used data associated with a vessel's history. In the future, the IBQ share will be associated with the permit, not the vessel. For example, if a permitted vessel has IBQ shares, and the owner of the permitted vessel decides to sell the permit but keep the vessel, the seller of the permit (the vessel owner) would no longer have any quota share or privileges with respect to the IBQ Program because IBQ shares would be associated with the permit that was sold. In contrast, the buyer of the permit would receive IBQ shares and allocation associated with that permit once the permit is associated with a vessel.

Appeals of Initial IBQ Shares and GRA Access Determinations

This final rule implements a two-step appeals process for review of the Secretary's decisions regarding initial assignment of IBQ shares. This rule also adds an opportunity for HMS Management Division to initially review a request for a quota share adjustment or access to the Cape Hatteras GRA, in order to facilitate possible expedited resolution of such requests without a requestor needing to go through a full National Appeals Office process. Specifically, the final rule describes an initial review step by the HMS Management Division through which the appellant must first submit a written request to appeal their initial IBQ share or access the Cape Hatteras GRA prior to submitting any appeals to the National Appeals Office. It also adds administrative details about the process (

i.e.,

on acceptable supporting documentation, and the specific timing of the steps). This modification was made in response to public comment requesting clarification of the process. Although this final rule adds administrative details regarding the appeals process, the range of criteria that permit holders may base an appeal on did not change from the proposed to the final rule. Additional discussion of these changes is in the section of this preamble called “Changes to the Proposed Rule.”

Upon publication of this final rule, NMFS will notify all permit holders by certified letter of their initial IBQ share

and resultant allocation and whether they have granted access to the Cape Hatteras GRA. If permit holders wish to appeal their IBQ share determination or GRA access determination, they must first submit a written request for adjustment of their initial IBQ share or GRA access determination to the HMS Management Division, indicating the reason for the requested change and providing supporting documentation as detailed below. All requests for adjustment to initial IBQ shares or GRA access determination must be submitted to the HMS Management Division within 90 days of publication of the final rule. HMS Management Division staff will evaluate all such requests and supporting documentation, then notify the appellant by letter signed by the HMS Management Division Chief of NMFS' decision to approve or deny the request. If the request is approved, then NMFS will appropriately adjust the appellant's initial IBQ share and resultant allocation and/or grant access to the Cape Hatteras GRA. If denied, the permit holder may appeal the decision to the NMFS National Appeals Office within 90 days of receipt of the notice of denial by submitting a written petition of appeal. Appeals will be governed by the regulations and policy of the National Appeals Office at 15 CFR part 906. National Appeals Office regulations detail the procedure for appealing the quota share decision (See § 906.3).

The decisions subject to a request for appeal are: (1) Initial eligibility for IBQ shares based on ownership of an active vessel (as defined by this rule under § 635.15) with a valid Atlantic Tunas Longline category permit combined with the shark and swordfish limited access permits required under the current permit regulations; (2) the accuracy of NMFS records regarding a vessel's amount of designated species landings and/or bluefin interactions; and (3) correct assignment of target species landings and bluefin interactions to the vessel owner/permit holder. As discussed under the IBQ measures above, the IBQ share formula is based upon historical data associated with a permitted vessel. Because vessels may have changed ownership, or permits may have been transferred during 2006 through 2012, the current owner of a permitted vessel may also appeal on the basis of historical changes in vessel ownership or permit transfers, if current owner believes that the data used in the analysis were not accurate because of such changes. NMFS will consider only written requests for appeals. When permit holders are informed of their initial IBQ shares and resultant allocations and/or access determination, they will be provided instructions regarding the process to appeal that decision. Landings eligibility criteria require evidence of documented legal landings during the timeframe from January 1, 2006, through December 31, 2012. Public comment on the DEIS and proposed rule reflected a need to clarify aspects of the appeals process. Thus, NMFS is clarifying in this final rule that, regarding what will be considered “documented legal landings,” NMFS will consider official NMFS logbook records or weighout slips for landings between January 1, 2006, through December 31, 2012, that were submitted to NMFS prior to March 2, 2013 (60 days after the cutoff date for eligible landings), and verifiable sales slips, receipts from registered dealers, state landings records, and permit records as accompanying documentation of an appeal. Landings data are required to be submitted within 7 days of landing under the applicable regulations. Recognizing that somewhat-late reporting could have occurred for a variety of reasons, however, NMFS is clarifying that it will consider “documented” landings for appeals purposes to be those reported within 60 days. NMFS will count only those designated species landings that were landed legally when the vessel owner had a valid permit. Appeals regarding bluefin interactions may be based on HMS logbook records as described, observer data, or other NMFS data. No other proof of catch history will be considered. NMFS permit records will be the sole basis for determining permit transfers . Photocopies of the written documents are acceptable in the original application or appeal; NMFS may request the originals at a later date. NMFS may refer any submitted materials that are of questionable authenticity to the NMFS Office of Enforcement for investigation. Appeals based on hardship factors will not be considered. Consistent with most limited effort and catch share programs, hardship is not a valid basis for appeal due to the multitude of potential definitions of hardship and the difficulty and complexity of administering such criteria in a fair manner.

When NMFS determines that all requests for IBQ share appeals have been resolved, NMFS may adjust all IBQ share percentages as appropriate to accommodate permitted holders that are deemed eligible or that are provided an increased IBQ share through the appeals process.

Mandatory Retention of Legal-Sized Bluefin Tuna

Pelagic longline vessels must retain all legal-sized commercial bluefin tuna that are dead at haul-back. Because these fish must be retained, regulatory discards and the waste of fish will be decreased, and it will be more likely that such fish are accurately accounted for and have a positive use (

e.g.,

marketed, used for scientific information, etc.). Bluefin tuna, of all size classes, that are live at haul-back should be carefully removed from the hooks and returned to the ocean to ensure survivability. Legal-sized commercial bluefin tuna that are alive at haul-back may be retained; however they will be accounted for under the IBQ allocation.

Fishing Under the IBQ Program

This section provides a brief example of how some of the Amendment 7 requirements applicable to a vessel fishing with pelagic longline gear will work together. Additional details regarding the VMS and electronic monitoring programs are provided below in sections of this preamble titled “VMS”: and “Electronic Monitoring.”

As discussed in the proposed rule, IBQ allocation leases would be executed by the eligible vessel owners, or their representatives, through the internet and a NMFS database. Owner-performed leases will provide the quickest execution of leases because any eligibility criteria will be verified automatically based on information loaded into that system, and will not involve the submission or review of a paper application, or any lag time associated with NMFS staff being directly involved in the lease approval process. The online IBQ System used to track and lease bluefin IBQ shares and resultant allocations will be operated out of NMFS's Southeast Regional Office (SERO). The administrative functions associated with this IBQ System (

e.g.,

registration and account setup, landing and dead discard tracking, and leases of allocation) are designed to be accomplished online; therefore, a participant must have an IBQ System account to participate. NMFS will provide instructions to IBQ participants about the required software, how to use the IBQ System to lease IBQ allocation and track IBQ use and balances, how to perform the necessary accounting actions that support administration of the program, and how to obtain assistance with using the system. An eligible permit holder must create an IBQ System account online, and log into the password protected IBQ

System to execute an IBQ allocation lease, to check the amount of IBQ in their account, or perform other functions, according to instructions provided by NMFS. Similarly, a dealer purchasing bluefin tuna caught from a vessel fishing with pelagic longline or Purse Seine gear must have an online dealer account, computer access, and internet access.

Before they may depart to fish with pelagic longline gear vessels must have the required minimum IBQ allocation and must have balanced any outstanding quota debt from previous trips, and comply with the VMS and electronic monitoring requirements. Vessels are required to haul gear and handle catch in accordance with the electronic monitoring program requirements (described below under electronic monitoring requirements), retain any legal sized dead bluefin, and report bluefin catch and information on sets through their VMS during the trip (described below under VMS Requirements). If a vessel retains legal-sized bluefin tuna in excess of its IBQ allocation, it may land and sell the fish, but the permit holder must acquire additional IBQ allocation to account for the excess catch, and is not allowed to fish with, or have onboard, pelagic longline gear until the quota debt has been resolved.

At the end of the trip, the permitted dealer purchasing the landings must enter all bluefin landing information from the trip. The vessel owner or operator, or their designee, must coordinate with the dealer to enter their dead discards, into the IBQ System. The landing transaction completed by the dealer must include the name and permit number of the vessel that landed the bluefin and any other information regarding the landings, as instructed by NMFS (such as the shareholder's account number, vessel account number, individual tag number, weights for landed bluefin tuna, and the number of dead discarded bluefin tuna by appropriate length bin). The permit holder, or designee, must validate the landings information and enter the dead discard information (such as numbers of fish by approximate size) before the transaction is processed. If, by the end of the fishing year a permit holder does not have adequate allocation (obtained either through leasing under paragraph (c)), or additional allocation under paragraph (f) to settle their vessel's quota debt, the vessel's allocation will be reduced in the amount equal to the quota debt, in the subsequent year, or years, until the quota debt is fully accounted for. A vessel may not fish if there is outstanding annual quota debt from a previous year. For those permit holders who own or operate multiple vessels with allocation, if, at the end of the year, one or more of the vessels has an outstanding quota debt, yet the other vessels still have allocation, the IBQ system will apply any remaining unused allocation associated with the other vessels to account for the quota debt of the other. This system functionality has been added since the proposed rule because unused allocation does not carry over from one year to the next, but quota debt does. This addition will ease the regulatory burden of resolving quota debt, and reduces the possibility that a permit holder of multiple vessels may inadvertently fail to manually resolve an existing quota debt with allocation associated with one of their other vessels at the end of the year and otherwise miss the opportunity to resolve the debt.

For example, if a permit holder owns two vessels, Vessel A and Vessel B and both have IBQ allocations but at the end of the year Vessel A has a quota debt of .20 mt, and Vessel B has remaining unused IBQ allocation of .10 mt, the IBQ System would automatically transfer .10 mt of Vessel B IBQ allocation to Vessel A to count toward resolving Vessel A's quota debt. Vessel A would still have a quota debt of .10 mt and, when annual IBQ allocation occurs at the start of the subsequent year, Vessel A's annual IBQ allocation would be reduced by .10 mt to account for the previous year's quota debt.

This final rule clarifies the relationship of accrued quota debt and Atlantic Tunas Longline category permit under the IBQ Program. If an Atlantic Tunas Longline category permit holder participated in the IBQ Program and has a quota debt that remains unresolved at the time of such permit's sale or transfer, then that quota debt remains associated with the permit. This is consistent with the IBQ share remaining linked to the eligible permit itself and further refines how IBQ shares, resultant allocation, and quota debt will be managed to ensure accountability under the IBQ Program, even if permits are sold or transferred.

To ensure that all IBQ Program activity can be accounted for on an annual basis, the IBQ System will prohibit any and all online transactions, such as catch transactions and IBQ allocation leases, between December 31 at 6 p.m. and January 1 at 2 p.m. (Eastern Time). IBQ System functions will resume after January 1 at 2 p.m. the following year. No IBQ System transactions will be allowed or available during this 20 hour time period to provide NMFS time to reconcile IBQ accounts, adjust IBQ allocation for the upcoming year, etc. If a vessel with the required minimal IBQ allocation departs on a trip prior to the end of a calendar year and returns to port after the start of the following year, any bluefin landings or dead discards will be counted against the new year's allocation.

In this final rule, NMFS will maintain the authority to ensure that the bluefin catch by pelagic longline vessels does not exceed the Longline quota. NMFS may, under certain circumstances, such as high uncertainty regarding the VMS reported dead discards, utilize the current methodology for generating and using estimates of pelagic longline dead discards. Prior to this final rule NMFS has used previous years' estimate as proxy for anticipated dead discards, and subtracted that estimate of dead discards “off the top” of the entire Longline quota. Although not anticipated, NMFS will maintain this ability until both methodologies can be compared in parallel to verify accuracy.

The Northeast Distant Area (NED) and the IBQ Program

Under current ICCAT recommendations, the NED is a distinctly managed geographic area managed under a separate quota. Because the NED is managed as a distinct area with a relatively small quota, and managing the NED under the IBQ system would add additional complexity to the IBQ system, the quota associated with the NED (25 mt) is not managed under the full IBQ Program restrictions. However, there are provisions of the IBQ Program that will apply to vessels fishing with pelagic longline gear in the NED. For example, vessels will be required to have the minimum IBQ allocation to operate in the NED starting in 2016 and when NED bluefin quota has been exhausted, permitted vessels must abide by all the requirements of the IBQ Program. Electronic monitoring systems, installed by June 1, 2015, will be required in order for vessels to fish with pelagic longline gear including in the NED, and data from the electronic monitoring system may be used to ensure that targeting fishing is not occurring. NMFS reminds the regulated community that the international separate allocation is only for bycatch in the NED and of the domestic prohibitions against targeting bluefin tuna using pelagic longline gear. NMFS will re-visit this issue if necessary if subsequent years' data indicate that additional controls are needed.

Quota Leasing

This measure allows Longline and Purse Seine category vessels to lease allocation to or from other vessels in these categories (provided they have active accounts in the IBQ system), so that allocations will become better aligned with catch (

i.e.,

vessels that catch bluefin tuna may be able to obtain quota from those that do not interact with bluefin tuna, or that have not used their full allocation of bluefin tuna). Allocation may be leased annually by Atlantic Tunas Longline category permit holders from other Atlantic Tunas Longline category permit holders or from Purse Seine category participants, regardless of whether they are eligible for their own quota share. Leasing of IBQ allocations is allowed among all Longline category vessels with valid limited access permits, regardless of whether they are eligible for their own quota share. If a vessel catches bluefin tuna using allocation that it has leased from another vessel, the fishing history associated with the catch of bluefin tuna will be associated with the vessel that catches the bluefin tuna (the lessee, not the lessor vessel). In other words, the lessee (vessel catching the fish) gets the `credit' for the landings and dead discards, and not the lessor (the vessel that leased the allocation to the catching vessel). The future catch of bluefin tuna will not affect the quota shares, but will affect the calculation of the performance metric of each vessel. Sub-leasing of quota is allowed (

i.e.,

IBQ leased from vessel A to vessel B, then re-leased by vessel B to vessel C). For a particular calendar year, an individual lease transaction will be valid from the time of the lease until December 31.

The initial limit on the amount of allocation an individual Longline or Purse Seine category participant may lease annually will be the combined Longline and Purse Seine category allocations. This will provide flexibility for vessels to purchase quota in a manner that can accommodate various levels of unintended catch of bluefin tuna, and enable the development of an unrestricted quota market.

Annual Individual Bluefin Quota Allocation

Annual allocation of bluefin quota to eligible vessels with IBQ shares will occur January 1, based on the criteria described above (“What Vessels Are Eligible to Receive Initial Bluefin Tuna Quota Shares?” and “How Much Bluefin Tuna Quota Does Each Eligible Vessel Get?”). For vessels that are not eligible as of December 31 because they have begun—but not completed—the process of permit renewal or permit transfer, IBQ allocations will be made when the eligible permit holder completes the permit transaction(s). Subsequent to the annual allocation of quota, additional IBQ may be allocated to the vessels with bluefin quota share as a result of a U.S. baseline quota increase or transfer of quota from the Reserve category to the Longline category, pursuant to criteria for quota adjustments. Subsequent to the annual allocation of quota, quota may be deducted from vessels as a result of a decrease in the U.S. baseline quota, or to account for a quota debt (bluefin catch by a vessel that must be accounted for under the IBQ system, for which the vessel has insufficient quota).

With respect to the relationship between the Atlantic Tunas Longline permit and the IBQ share, upon implementation of Amendment 7, the IBQ share is associated with the Atlantic Tunas Longline permit, and is not severable. If, in the future, NMFS allows permanent sale of quota shares, NMFS would also consider whether or not the share is severable from the Atlantic Tunas Longline permit. Under this final rule, any quota debt associated with an Atlantic Tunas Longline permit will be associated with (and accompany) the permit upon sale/transfer of the permit. Quota debts will be also be associated with Atlantic Tunas Purse Seine category participants.

Elimination of Target Catch Requirement

This final rule eliminates the current target catch requirements for pelagic longline vessels (including those fishing in the NED), which restricts the number of incidentally caught bluefin tuna a pelagic longline vessel may retain in relation to the amount of target species retained and sold. In the context of the IBQ system being implemented by Amendment 7, the current target catch requirement is no longer be necessary.

Formal IBQ Program Evaluation

NMFS will formally evaluate the success and performance of the IBQ Program in achieving its objectives, after three years of operation and provide the HMS Advisory Panel with a publicly-available written document with its findings. The review will describe and analyze the changes that have taken place in the fishery since implementation of the IBQ Program. NMFS will utilize its standardized economic performance indicators, developed by its Office of Science and Technology, as part of its review. For example, the standardized economic performance indicators include catch (landings and dead discards), effort, revenues, and allocation leases and accumulation. Other indicators include the number of and distribution of bluefin tuna interactions. The review may also include analysis of data collection, monitoring, and reporting; enforcement; quota performance; quota distribution among permit holders; quota share and resultant allocation transferability; other elements of the IBQ Program; or aspects of the 2006 Consolidated HMS FMP relevant to the IBQ Program such as gear restricted areas or purse seine measures.

Cost Recovery

Section 303A(e) of the Magnuson-Stevens Act (16 U.S.C. 1853a(e)) requires that, in establishing a LAPP, a Council shall develop a methodology and the means to identify and assess the management, data collection and analysis, and enforcement programs that are directly related to and in support of the LAPP; and provide for a program of fees paid by LAPP holders that will cover the costs of management, data collection and analysis, and enforcement activities. Such fees may not exceed 3 percent of the ex-vessel value of fish harvested under the LAPP. While section 303A(e) requires development of cost recovery in establishing a LAPP, NMFS plans to implement cost recovery after the IBQ Program evaluation (after 3 years). This step-wise approach is consistent with the purpose of section 303A(e) and appropriate given the nature of the LAPP being proposed. The purpose of section 303A(e) is to collect fees to cover management, data collection and analysis, and enforcement activities. However, the cost of administering a cost recovery program may be high relative to the amount of money recovered, because some active vessels have very high fishing activity whereas others have relatively low activity. NMFS also notes that the underlying objective of the IBQ is to reduce incidental catch of bluefin tuna, which will impact the amount and ex-vessel value of fish harvested. Immediate implementation of a cost recovery program, without obtaining further information about the operation of the fishery with IBQs, would be very difficult and would increase costs and uncertainty for fishing vessels during a time period when the fishery would be bearing other new costs and sources of uncertainty. For the above reasons, NMFS is not implementing cost recovery until after it conducts the program evaluation. After the IBQ Program is evaluated after 3 years,

NMFS will implement a cost recovery program through separate rulemaking.

4. Reporting Measures

Vessel Monitoring System (VMS) Requirements

This final rule implements VMS reporting requirements for vessels fishing with pelagic longline gear and issued an Atlantic Tunas Longline category permit. It also requires vessels fishing with purse seine gear and issued an Atlantic Tunas Purse Seine category permit to install VMS and report through VMS to support the inseason monitoring of the pelagic longline and purse seine fisheries, as proposed. Additional detail is provided in this final rule to explain application of the requirements to the Purse Seine category, in response to public comment asking for clarification and because of the need for additional administrative detail.

Purse Seine Vessels

Vessels with an Atlantic Tunas Purse Seine category permit must have an approved Enhanced Mobile Transmitting Unit (E-MTU) VMS unit installed by a qualified marine electrician to fish for Atlantic tunas with purse seine gear. Vessels must follow the procedures for installation and activation provided by NMFS and submit to NMFS the completed checklist and compliance certification statement. The VMS unit must submit automatic position reports every hour, 24 hours a day, unless a valid power down exemption has been granted by NMFS law enforcement. Owners of purse seine vessels may request a documented power down exemption from NMFS law enforcement if the vessel will not be fishing for an extended period of time. The request must describe the reason an exemption is being requested; the location of the vessel during the time an exemption is sought; the exact time period for which an exemption is needed; and sufficient information to determine that a power down exemption is appropriate. Prior to departing on a trip vessels that intend to fish for Atlantic tunas with purse seine gear must declare through E-MTU VMS their intent to fish with such gear and note their HMS target species), by submitting a “Highly Migratory Species Trip Declaration Form” (`hail out'). If a vessel operator is aware that transmission of automatic position reports has been interrupted, or is notified by NMFS that such reports are not being received, the vessel operatory must contact NMFS and follow the instructions given. After a fishing trip during which interruption of automatic position reports has occurred, the vessel's owner or operator must have a qualified marine electrician replace or repair the VMS unit prior to the vessel's next trip. Finally, as a condition of obtaining an HMS limited access permit, the vessel owners or operators must allow NMFS, the United States Coast Guard (USCG), or their designees access to the vessel's position data.

Vessels fishing for Atlantic tunas with purse seine gear must submit, through VMS, a “Highly Migratory Species Bluefin Tuna Catch Report” for each set. Specifically, such vessels must report the number of sets within 12 hours of the set; and report the length of all bluefin discarded dead or retained (by standardized size ranges) within 12 hours of completion of each the set (including reporting zero bluefin on a set). NMFS will provide vessel owners with instructions regarding the detailed methods of reporting such information using their VMS units. At least three hours prior to the end of a trip, the vessel operator must provide advanced notice of landing by submitted the “Highly Migratory Species Pre-Landing Notification Form” with information on the time and location of landing.

If a vessel operator decides not to fish for or retain HMS for two or more trips, the operator may choose to “declare out” of the fishery, according to instructions provided by NMFS, and not be subject to the HMS hail in/hail out requirements during trips for which they are declared out of the HMS fishery.

Vessels fishing with pelagic longline gear must report through VMS the number of hooks and sets within 12 hours of completion of each pelagic longline haul-backs and, for pelagic longline sets with bluefin tuna interactions, must report the length of all bluefin tuna retained or discarded dead (by standardized size ranges) within 12 hours of completion of the pelagic longline haul-back.

NMFS will make specific VMS reporting instructions available to the purse seine and pelagic longline fisheries to facilitate this reporting requirement.

Electronic Monitoring

The final rule adopts electronic monitoring requirements for all vessels issued an Atlantic Tunas Longline permit that fish with pelagic longline gear. This final rule requires all such vessels that are currently eligible to have a NMFS-approved contractor install a system and obtain certification of such installation. They must then properly maintain the video cameras and associated data recording and monitoring equipment, which will record all longline catch and relevant data regarding pelagic longline gear retrieval and deployment. NMFS will use the recorded data to verify the accuracy of counts and identification of bluefin tuna reported by the vessel owner/operator, as well as observers. Electronic monitoring will enable the collection of video images and fishing effort data that may be used in conjunction with other sources of information to estimate bluefin tuna dead discards, and may augment the ability of an observer to fulfill their duties by providing a record of catch during the time periods the observer may be unable to observe the catch directly.

In light of public comments expressing concern about ensuring the functionality of electronic monitoring systems and the costs of such systems, this final rule relieves certain purchase and installation requirements that were set out in the proposed rule. Rather than requiring currently eligible vessel owners to buy and install equipment and make decisions about equipment specifications and functionality, this final rule instead requires the currently eligible vessel owners to obtain certification from a NMFS-approved contractor stating that the contractor has properly installed and verified the functionality of the electronic monitoring system in accordance with more detailed equipment and system requirements provided in the final rule. As set out in the proposed rule, vessel owners would have been responsible for the costs of the equipment and for installation for the electronic monitoring systems. Since publication of the proposed rule and the FEIS, and in response to public comment and to ease the regulated community's burden associated with the new monitoring requirements, NMFS has identified funds to pay for the equipment and its installation for those currently eligible vessels (eligible for initial quota shares). For all vessels issued an Atlantic Tunas Longline permit that fish with pelagic longline gear, vessel owners (or their representatives) must coordinate with the NMFS-approved contractor to install and test electronic monitoring equipment, and the contractor will then provide certification that the equipment has been properly installed. Vessel owners will be required to make their vessel accessible to designated personnel on a specific date, or range of dates, to allow installation and testing of electronic monitoring equipment, and may be required to steam to a

designated port within their geographic region to enable such installation and training. This is consistent with the proposed rule's requirement that vessels be available for inspection, as it will not result in any additional absence from fishing time than was analyzed and proposed in the proposed rule or impose additional financial costs or regulatory burden.

To fish using pelagic longline gear, a vessel must have a valid certification form from the NMFS-approved contractor certifying that it has a fully functioning electronic monitoring system on board. Because the pelagic longline fleet is diverse with respect to vessel size, mechanical infrastructure, and operation, and the technology supporting electronic monitoring is changing and improving, NMFS is implementing detailed regulations that include some technical specifications regarding the necessary equipment that constitutes an electronic monitoring system to respond to public comment that more details are needed while still providing flexibility to allow vessels to install equipment that performs well in a cost effective manner. NMFS will utilize both third party experts and NMFS staff to provide vessel owners instructions regarding the specific required equipment and operational features of the system. As explained in more detail below, vessels must, in accordance with instructions provided by NMFS and/or NMFS-approved contractor, coordinate installation and maintain the following equipment, as components of an electronic monitoring system: Two to four video cameras, a recording device, video monitor, hydraulic pressure transducer, winch drum rotation sensor, system control box, GPS receiver, and related support equipment needed to achieve the objectives (

e.g.,

power supply, camera mounts, lighting). Slight modifications to the equipment listed above may be required to support the objectives of electronic monitoring, adapt to unique vessel characteristics, or achieve cost savings or efficiencies. Vessel owners/operators must coordinate installation and subsequently maintain and operate the system in accordance with instructions provide by NMFS, and allow inspection of the equipment by NMFS. The electronic monitoring system must include software to enable a test function so that the vessel operator may test the status of the system (

i.e.,

whether it is fully functional) prior to each trip, and record the outcome of the test. A vessel operator may not depart on a pelagic longline trip unless the pre-trip test indicates that the system is fully functioning. Upon successful installation and testing by the NMFS-approved contractor, the NMFS-approved contractor will provide vessel owners with a certificate that the equipment installed constitutes a “fully functioning electronic monitoring system” based on written instructions and requirements that NMFS provided the contractor. The vessel owner must make the certificate available upon request by NMFS OLE. The required cameras must be installed to provide a view of the area where the longline gear is retrieved and catch is removed from the hook (prior to placing in the hold or discarding boatside) and such system must be connected to the mechanical hauling device so that recording is initiated by gear retrieval. The specific equipment functionality requirements are as follows:

Video Cameras:

Video data are produced by digital IP (Internet protocol) video cameras at a resolution of no less than 720p (1280×720). The individual vessel systems must include no less than two cameras: At least one camera to record close-up images of the deck at the haul back station for species identification/length estimation, and at least one camera to record activity along the side of the vessel at the water line of the haul back station to document animals that are caught and discarded but not brought aboard, as well as the disposition of that catch (released alive/dead). The frame rates of the footage will need to allow for easy of viewing. The cameras are not required to record audio.

GPS Receiver:

A GPS receiver is required to produce output, which includes location coordinates, velocity, and heading data, and is directly logged continuously by the control box at a minimum rate of 10 seconds. The GPS receiver must be installed and remain in a location that receives a strong signal continuously.

Hydraulic & Drum Rotation Sensors:

A hydraulic sensor is required to continuously monitor the hydraulic pressure, and a drum rotation sensor must continuously monitor drum rotations in order to provide the data necessary for the EM system to trigger the video camera to record. The combination of these two sensors provide a mechanism to ensure that specific periods of time are captured on video, such as when gear is being retrieved and catch is removed from the hooks.

EM Control Box & Monitor:

The system must include a `control box' to receive and store the raw data provided by the sensors and cameras. The control box must contain removable hard drives and storage system adequate to store data for the entire trip (

e.g.,

adequate to store the data associated with a trip lasting approximately 30 days). A wheelhouse monitor must provide a graphical user interface for harvesters to monitor the state and performance of the control box and should include information such as: Current date and time synced via GPS, GPS coordinates, current hydraulic pressure reading, presence of a data disk, percentage used of the data disk, and video recording status.

Hydraulics:

Prior to system installation, vessel operators must possess and install a fitting for the pressure side of the line of the drum hydraulic system. The fitting may be either “T” or inline, with a female

1/4

” threaded National Pipe Thread (NPT) port to enable connection to the pressure transducer.

Power:

Electronic monitoring systems are capable or being powered by both alternating current (AC) and direct current (DC) power. An EM system that is to be powered by a DC circuit must have free space on a 12-volt bus bar in the wheelhouse and a dedicated DC power switch. If the EM systems are to be powered by AC circuits, vessels must provide an Uninterrupted Power Supply (UPS) in the wheelhouse.

Camera Mounts:

During installation of the EM system, cameras must be mounted so that the camera may be positioned to view the waterline outboard of the vessel rail. If determined during the vessel assessment that there is not suitable mounting structure onboard, vessels may be required to provide a mount that allows a camera to be positioned to view the waterline outboard of the vessel rail. Before each scheduled installation of an EM system, NMFS-approved contractors will discuss mounting alternatives with the vessel's owner or operator.

Lighting:

Vessels must provide sufficient lighting for cameras to clearly illuminate individual fish on deck at the haul back station and along the vessel rail at the waterline, at all times. Lighting will be evaluated by NMFS-approved contractors during the vessel assessment/EM installation. After installation, if NMFS-approved contractors review video footage and determine that lighting is insufficient, the vessel owner must adjust the lighting to ensure it is sufficient before the EM system can be recertified.

Upon completion of a fishing trip, the vessel operator must mail the removable EM system hard drive containing all data to NMFS or the NMFS-approved contractor, within 48 hours of the

completion of the trip, according to instructions provided by NMFS. Prior to departing on a subsequent trip, the vessel owner or operator must install a replacement EM system hard drive to enable data and video recording. The vessel owner or operator is responsible for contacting NMFS, or NMFS-approved contractors, if they have not received a replacement hard drive(s). The vessel operator is responsible to ensure that all bluefin tuna are handled in a manner that enables the electronic monitoring system to record such fish, and must identify a crew person or employee responsible for ensuring that all handling, retention, and sorting of bluefin tuna occurs in accordance with the regulations. NMFS or the NMFS-approved contractor, with the vessel owner or operators” input, will develop and provide a written Vessel Monitoring Plan, to document the standardized procedures relating to electronic monitoring and facilitate communication of such procedures to the vessel crew. The vessel owner or operator is responsible for ensuring that the EM system remains powered for the duration of each trip; that cameras are cleaned routinely to ensure unobstructed views, and the EM system components are not tampered with.

NMFS will communicate instructional information in writing, via permit holder letters, to the vessel owners during all phases of the program to provide direction and assistance to vessel owners, and facilitate the provision of technical assistance.

Electronic Catch Reporting

This final rule requires Atlantic Tunas General, Harpoon, and HMS Charter/Headboat categories to report the length of all bluefin tuna retained or dead discards through an online catch reporting system (either through a Web site designated by NMFS or calling a phone number) within 24 hours of the landings or end of each trip. Specifically, vessels must report the number of bluefin tuna retained, and the number of bluefin tuna discarded dead, according to instructions that will be provided by NMFS. NMFS also operates a similar automated landings reporting system (ALRS) for recreational bluefin tuna catch in the HMS Angling and Charter/Headboat category (when fishing recreationally). This discard information will enhance NMFS's ability to more fully and accurately account for all sources of fishing mortality, consistent with ICCAT recommendations.

5. General Category Flexibility for Quota Adjustment

This final rule allows NMFS to proactively transfer General category quota from one or more of the time-periods that follow the January time-period to the January or other preceding sub-quota time periods within a fishing year, either through annual specifications or through inseason action. In other words, under this rule, NMFS may transfer subquota from one time period to another time period, earlier in the same calendar year. As described in more detail under Response to Comments (Comment 98), NMFS may transfer quota from the December sub-quota time period to the January sub-quota time period to address the unique characteristics of the January sub-quota period. For example, for an upcoming year (

i.e.,

prior to January), NMFS may transfer quota from the December to the January sub-quota period. NMFS may also conduct lower priority transfers of sub-quota between time periods, for example, subquota could be transferred from the October 1 through November 30 time period to the September time period.

This final rule adds a new objective called “quota adjustment” to the current list of criteria and relevant factors NMFS considers when making inseason or annual quota adjustments.

6. Harpoon Category NMFS Authority To Adjust Retention Limits

To optimize fishing opportunity for the Harpoon category participants within the available quota, NMFS may increase or decrease the daily retention limit of large medium bluefin tuna (greater than 73″ CFL and less than 81″ CFL) within a range from two to four fish. Any adjustment will be based upon the regulatory determination criteria under § 635.27(a)(8) (as revised by this final rule) that apply to inseason bluefin tuna adjustments including: The usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock; effects of the adjustment on bluefin tuna rebuilding and overfishing; effects of the adjustment on accomplishing the objectives of the fishery management plan; variations in seasonal distribution, abundance, or migration patterns of bluefin tuna; effects of catch rates in one area precluding vessels in another area from having a reasonable opportunity to harvest a portion of the category's quota; and review of dealer reports, daily landing trends, and the availability of the bluefin tuna on the fishing grounds, as well as any other relevant factors.

The default Harpoon category daily retention limit of large medium bluefin tuna will be two fish per vessel (the large medium bluefin tuna daily retention limit that applied prior to the 2011 regulatory change). The retention limit of giant bluefin tuna will remain unlimited. The objective of this measure is to optimize fishing opportunity for the Harpoon category participants within the available quota. This management measure enhances NMFS's ability to more precisely manage the landing rate of large medium bluefin tuna by the Harpoon category, thereby optimizing opportunities while preventing landings from exceeding the subquota.

7. Angling Category Trophy Subquota Distribution

This final rule allocates one third of the Angling category trophy subquota specifically to account for those bluefin tuna caught incidentally while pursuing other species in Gulf of Mexico. The trophy subquota would be divided as follows: 33 percent to each of the northern area, the southern area outside the Gulf of Mexico, and the Gulf of Mexico. Based upon the recent average trophy fish weight, this would allow up to 8 trophy bluefin tuna to be landed annually in each of the three respective areas. To distinguish bluefin tuna incidentally caught in the Gulf of Mexico from those caught in the Atlantic, the Gulf of Mexico region includes all waters of the U.S. EEZ west and north of the boundary stipulated at § 600.105(c), which is essentially west of 83° 00′ West longitude but also includes the waters off southwestern Florida and north of the Florida Keys.

The objective of this measure is to reduce discards for recreational vessels in the Atlantic and Gulf of Mexico, and account for incidentally caught bluefin tuna by converting a small number of potential dead discards in the Gulf of Mexico to potential landings. A separate subquota allocation for the Gulf of Mexico increases the likelihood that there will be trophy quota available to account for any potential incidental catch of bluefin tuna in that area, while still providing incentives not to target bluefin tuna.

8. Purse Seine Category Fishing Year Start Date

NMFS considered two alternatives at the proposed rule stage. The No Action Alternative would have maintained the current practice: The purse seine fishery starts on the default start date of July 15 each year unless NMFS takes action to delay the season start date to as late as August 15. A second alternative, which

was preferred in the proposed rule and in the FEIS, would change the default start date to June 1 (instead of July 15), unless NMFS takes action to delay the start date to as late as August 15. In the final rule, after considering public comments after the FEIS was published, HMS is choosing a third option that removes the default start date altogether. Instead, NMFS will establish the purse season start date annually, within a range from June 1 to August 15, based on the already-existing criteria in the regulations, which are unchanged in the final rule text. Although the third option was not directly analyzed as an alternative in the FEIS, the range of dates for possible opening (June 1-August 15) remains within the range analyzed in the FEIS (June 1-August 15 between the two alternatives), and the regulated community was aware that this range was being considered and that NMFS intended to retain maximum flexibility under any option to adjust the date as necessary to be responsive to the public and the fishery under the regulatory provisions. By relieving the default date, the new approach will allow additional public input to the start-date-setting process annually, is responsive to public comment (particularly from the harpoon category fishermen), and substantively does not result in effects different from those already analyzed. The only change from the current practice is that the fishery can start earlier now (June 1 instead of July 15), and the only change from the proposed rule is that there will be no default date.

9. Rules Regarding Permit Category Changes

This final rule allows a vessel owner to modify the category of an Atlantic Tunas or HMS permit issued for up to 45 days from date of issuance, provided the vessel has not landed bluefin tuna as verified via landings data. The previous restriction (10 calendar days) was intended to preclude vessels from fishing in more than one category during a year and to discourage speculative use of fishing permits. However, based on feedback NMFS has received over a number of years from vessel owners affected by the 10 day restriction, NMFS has concluded that limiting the time period during which a vessel may change permit categories to 10 calendar days is overly restrictive, and does not allow the flexibility to resolve the problems of a permit issued by mistake. The 45 day restriction achieves a better balance of allowing flexibility for vessel owners, while still preventing fishing in more than one permit category during a fishing year.

10. Northern Albacore Tuna Quota

This measure implements the U.S. annual quota of northern albacore tuna recommended by ICCAT and establishes provisions for the accounting of overharvest and underharvest of the quota via annual specifications. Specifically, the codified U.S. northern albacore tuna quota will be adjusted as appropriate for prior year catch (up or down), including delayed adjustment (that would skip a year) or adjustments over several years. Consistent with the ICCAT recommendation, carry-forward of unused quota from one year to the next will be limited to 25 percent of the initial quota. NMFS will adjust and implement the following via regulatory framework adjustments: Actions to implement ICCAT recommendations, as appropriate; allocating and refining domestic allocation of the U.S. quota; establishing retention limits; implementing effort restrictions, etc. Although an FMP amendment is not needed, framework adjustments still go through extensive public and analytical review and must be consistent with the MSA and other applicable law.

11. Adjustment of Management Measures

This final rule adds to the list of management measures that NMFS may modify or establish in accordance with the framework procedures of the 2006 Consolidated HMS FMP as amended, and provides examples of Amendment 7 measures that are within the scope of management measures currently listed in the regulations. With exceptions as noted under “Changes from Proposed Rule,” these measures were contained within the proposed rule. The Amendment 7 measures not previously contained in the 2006 Consolidated HMS FMP are as follows: The quota shares or allocations for bluefin tuna; electronic monitoring requirements; and administration of the IBQ Program (including requirements pertaining to leasing of IBQ allocations, regional or minimum quota share requirements, quota share caps (individual or by category), permanent sale of shares, NED IBQ rules, etc.). The Amendment 7 measures that are within the scope of measures currently in the regulations are Performance metrics (within the scope of “time/area restrictions” in current regulations) and Angling category trophy south/north/Gulf of Mexico percentages (within the scope of “allocations among user groups” in current regulations).

12. Minor Regulatory Changes

Amendment 7 is implementing minor regulatory changes (such as minor corrections and clarifications; the removal or modification of obsolete cross-references; and minor changes to definitions and prohibitions) to improve the administration and enforcement of HMS regulations. Several of these items have been identified by constituents over the past few years or were raised during scoping hearings. The corrections, clarifications, changes in definitions, and modifications to remove obsolete cross-references are consistent with the intent of previously analyzed and approved management measures. Under § 635.5(c)(1), the relevant internet address will be updated. Under § 635.20(a), the method of determining length of Atlantic tunas will apply regardless of permit type. Regulations at § 635.21(c)(5)(iii)(B), will refer to a “gear restricted area,” instead of a “closed” area. Under § 635.27(a)(7)(i), the reference to “Fishery-independent research” is changed to “research.” Under § 635.27(a)(1)(iii), the descriptor “coastwide” when referring to the General category fishery, is deleted. Under § 635.71(b)(13), the prohibition is corrected to clarify that the relevant amount of bluefin tuna is the “applicable limit” instead of “a” bluefin tuna. These changes were not analyzed because they do not make substantive changes to the regulations.

This final rule notifies the public that the collection-of-information requirements contained in §§ 635.5, 635.9, 635.14, 635.15, and 635.69 have been approved by OMB and are effective. In addition this final rule will update the table on NOAA information collections approved by OMB that appears under 15 CFR part 902.

Response to Comments

NMFS received over 188,000 written comments from fishermen, states, environmental groups, academia and scientists, and other interested parties. Comments included submissions of large numbers of identical or similar comments by organizations (or facilitated by organizations), as well as oral statements made at public hearings. All written comments can be found at

http://www.regulations.gov/.

The comments received resulted in changes, as described below, and in the section of this final rule called “Changes from Proposed Rule”. Significant comments are summarized below by major topic together with NMFS' responses. There are 29 major issues:

1. General Support for Proposed Measures (Comment 1),

2. General Concerns (Comments 2-7),

3. Codified Reallocation (Comments 8-13),

4. Annual Reallocation (Comments 14-17),

5. Modification to Reserve Category (Comments 18-19),

6. General Comments About Gear Restricted Areas (Comments 20-42),

7. Cape Hatteras Gear Restricted Area (Comments 43-49),

8. Gulf of Mexico Gear Restricted Area (Comments 50-62),

9. Pelagic Longline Vessels Fishing Under General Category Rules (Comment 63),

10. Pelagic Longline Limited Conditional Access to Closed Areas (Comment 64),

11. Pelagic and Bottom Longline Transiting Closed Areas (Comment 65),

12. Gear-Based Measures (Comments 66-67),

13. General Comments About Individual Bluefin Quotas (Comments 68-75),

14. IBQ Eligibility (Comments 76-85),

15. IBQ Leasing (Comments 86-88),

16. Measures Associated with the IBQ Program (Comments 89-90),

17. Closure of the Pelagic Longline Fishery (Comment 91),

18. VMS Requirements (Comment 92),

19. Electronic Monitoring Requirements (Comment 93),

20. Automated Catch Reporting (Comment 94),

21. Expand the Scope of the Large Pelagics Survey (Comment 95),

22. Deployment of Observers (Comment 96),

23. General Category Subquota Management (Comments 97-98),

24. Harpoon Category Retention Limit (Comment 99),

25. Angling Category Trophy Sub-Quota (Comments 100-101),

26. Purse Seine Start Date (Comments 102-103),

27. Permit Category Changes (Comment 104),

28. North Atlantic Albacore Tuna Quota (Comment 105), and

29. Other Concerns (Comments 106-107).

1. General Support for Proposed Measures

Comment 1:

NMFS received a wide range of comments expressing general support for the proposed conservation and management measures. Commenters stated that the proposed measures are a step in the correct direction for the future management of bluefin tuna, many noting support for Amendment 7 due to the inclusion of “strong” management measures, and others supporting the measures generally but urging NMFS to adopt stronger management measures than those proposed. Commenters' support was based upon their concerns about the current status of the bluefin stock and the desire to ensure long-term sustainability of bluefin for future generations of people. Some commenters urged NMFS to implement the preferred alternatives to “Save the Bluefin,” based on their perception that bluefin tuna are at imminent risk of going extinct. Commenters expressed concerns about the impacts of pelagic longline gear on bluefin tuna, noting the waste associated with discarding bluefin, especially in the Gulf of Mexico (GOM), and supported changes to the management of the pelagic longline fishery to reduce dead discards of bluefin tuna, as well as other highly migratory species, marine mammals, sea turtles, and other species. Commenters noted that many coastal communities depend upon healthy stocks of fish to contribute to their economic well-being and to that of individuals supported by commercial and recreational fisheries.

Response:

The need for management action and the specific objectives of Amendment 7 are described in detail in Chapter 1 of the FEIS, and the proposed rule. This final rule implements a suite of management measures that will achieve the Amendment 7 objectives in a balanced manner. Amendment 7 enhances long-term sustainability of bluefin tuna through reduced dead discards; improved monitoring; increased flexibility in the quota system to both account for dead discards and optimize allocation of quota among the diverse bluefin fisheries; and increased accountability in the pelagic longline fishery.

Based upon the advice of ICCAT's Standing Committee on Research and Statistics, continued management with catch levels that comport with ICCAT recommendations should support further stock growth of the Western Atlantic stock of bluefin and is consistent with the ICCAT rebuilding plan given the current state of the science regarding the stock status. The MSA requires consideration of both the biological and economic impacts of conservation and management measures, and NMFS has determined that Amendment 7 measures will achieve a balance that will support the broader objectives of both stock rebuilding and continued viability of the commercial and recreational fisheries that depend upon bluefin tuna.

The GOM has an important function in the ecology of the Western Atlantic stock of bluefin. The responses to comments 50 through 62 address measures specific to the GOM. NMFS acknowledges that pelagic longline gear affects other species in addition to bluefin tuna and therefore, Amendment 7 measures may indirectly affect other species. As described in the FEIS analyses, the cumulative impacts on other species are likely to be neutral or positive.

2. General Concerns

Comment 2:

Many commenters, particularly those with small businesses involved in the pelagic longline fishery expressed concern regarding the potential for negative economic impacts of Amendment 7 on jobs, families, and communities, and noted the importance of pelagic longline-caught fish in supplying high quality seafood to the nation. These commenters were concerned about the potential for the Amendment 7 measures to put people out of business, and “destroy the pelagic longline fishery.” Commenters stated that vessels that are currently only marginally economically viable would be at particular risk of going out of business, but were also concerned about any secondary impacts on related businesses such seafood dealers, gear manufacturers, etc. They urged NMFS to use a balanced regulatory approach to address the Amendment 7 objectives, and stated that Amendment 7 measures would increase uncertainty in the pelagic longline fishery.

Response:

The seafood supplied to the Nation by the pelagic longline fleet is valuable as both a source of food, and for the generation of income supporting local jobs, communities, and the broader economy. NMFS designed management measures to minimize economic impacts by relying on the combined effects of multiple management tools and incorporating flexibility into the system. Amendment 7 measures will affect all permit/quota categories and reflect the balance of addressing the issues confronting the bluefin tuna stock and management of the fishery while maintaining the viability of the pelagic longline and other fisheries dependent upon bluefin tuna. For example, reductions in dead discards will be achieved through the use of multiple measures, including gear restricted areas, the IBQ system, and IBQ allocation measures. This final rule will modify the quota system to increase management flexibility to allocate quota among categories and maximize opportunities to catch available quota, account for dead discards, and respond to changing conditions in the fishery. As the pelagic longline fleet is adjusting to

the suite of new measures, NMFS will have the flexibility to allocate a limited amount of additional quota to the pelagic longline vessels if necessary to prevent a fishery closure, and still, as a result of the gear restricted areas, and IBQ system, reduce the net amount of bluefin catch from the levels recently caught. The Amendment 7 management measures work together to reduce dead discards and otherwise reduce bycatch to the extent practicable, increase accountability, enhance reporting and monitoring, and optimize quota allocation, in a predictable but flexible manner. The potential economic impacts of the measures affecting the pelagic longline fleet are analyzed in Chapters 5 and 7, of the FEIS, and the economic rationale is summarized in the Final Regulatory Flexibility Analysis. Public comments that address specific measures are addressed below in the responses to more specific comments.

Comment 3:

Commenters stated that when determining whether the pelagic longline fleet should be subject to additional restrictions, NMFS should consider the current and past regulatory environment and other factors as context. Commenters stated the pelagic longline fishery is already heavily regulated to minimize its environmental impacts, especially in the GOM (

e.g.,

closures, weak hook requirement, observer deployment, bait requirements), and that progress is being made. Furthermore, increases in fuel costs strain fishers' ability to make a living, and events such as the 2010 oil spill in the GOM continue to be relevant. Commenters noted that bluefin tuna is managed at the international level and believe that the United States manages its citizens in a more effective and responsible way than other countries, and that NMFS should not further regulate bluefin tuna and increase the management disparity between the United States and other countries.

Response:

The context in which vessels operate, including current regulations and other factors was a relevant factor NMFS considered in determining whether new regulations were needed. NMFS took into consideration many factors in selecting preferred measures which address the diverse objectives of Amendment 7 in a balanced manner. Chapter 6 of the FEIS contains a cumulative impacts analysis which is broad in scope and takes into consideration past, present, and reasonably foreseeable factors. In addition, Chapter 2 in the FEIS contains a description of measures and the rationale for the preferred measures. The Final Regulatory Flexibility Analysis includes a description of the steps taken to minimize the economic impacts on small entities, and the reasons for the preferred measures.

The United States manages its exclusive economic zone in accordance with applicable U.S. laws and in response to the unique characteristics of its fisheries, and therefore the U.S. regulations regarding bluefin tuna are different from the rules affecting citizens of other countries, which operate under different laws and circumstances. Where U.S. regulations are more restrictive than those abroad, NMFS believes that the corresponding ecological and socio-economic benefits that result from such restrictions are also likely to be greater than those abroad.

Comment 4:

Commenters stated that the Amendment 7 DEIS contained too much information, was too complex, and was difficult to understand. Others were concerned that the DEIS was developed too quickly, leaving out too many details such as those associated with implementation of measures.

Response:

The proposed rule clearly described the proposed management measures, and NMFS facilitated communication with the public via the internet and its Web site. The amount and complexity of information in the DEIS and the FEIS reflect primarily the scope of the objectives of Amendment 7 and the number of alternatives analyzed. The complexity of the DEIS and FEIS also is due to the diversity of the bluefin tuna fisheries, and the number of applicable laws and processes (both national and international). The DEIS and FEIS contain an Executive Summary which provides a condensed version of the relevant information including tables of important information. NMFS conducted public hearings (including a language interpreter for one hearing) that were designed to inform the public of the proposed measures in a readily understandable format, as well as provide opportunities for the public to comment and ask questions.

Significant time and opportunity for public comment have gone into what has been a very thorough rulemaking process for this Amendment. The formal development of Amendment 7 began with the publication of the Notice of Intent (April 23, 2012; 78 FR 24161), which announced NMFS' intent to hold public scoping meetings to determine the scope and significance of issues to be analyzed in a DEIS and a potential amendment to the 2006 Consolidated HMS FMP. However, the informal development began several years previously. On June 1, 2009, NMFS published an Advanced Notice of Proposed Rulemaking (ANPR; 74 FR 26174) requesting specific comments on regulatory changes that would potentially increase opportunities for U.S. bluefin tuna and swordfish fisheries to fully harvest the U.S. quotas recommended by ICCAT while balancing continuing efforts to end BFT overfishing by 2010 and rebuild the stock by 2019 as set out in the 2006 Consolidated HMS FMP, consistent with the ICCAT rebuilding plan. The ANPR was in response to various public suggestions about bluefin tuna management during the previous two years, precipitated by declines in the total volume of bluefin tuna landings, which were well below the available U.S. quota, and a reduction in the overall allowable western Atlantic bluefin TAC recommended by ICCAT. In the ANPR, NMFS also requested public comment regarding the potential implementation of catch shares, LAPPs, and individual bycatch caps (IBCs) in highly migratory species fisheries. In response, NMFS received a wide range of suggestions for changes to the management of the U.S. bluefin tuna fisheries.

While the DEIS and proposed regulations contained sufficient detail for the public to understand the measures and their potential impacts, including implementation, the FEIS and this final rule provide additional details to clarify certain aspects of implementation. These are not new measures but clarification of measures within the scope of the impacts analyzed by the DEIS. The regulatory process of proposed and final rulemaking allows for such flexibility to respond to public comments and implement regulations that address the regulatory objectives. The changes made from the proposed rule are summarized in the section of this final rule called “Changes from Proposed Rule”. The comment period was extended to allow maximum public participation in this process.

Comment 5:

Some commenters asked why the focus of Amendment 7 is the pelagic longline fishery, perceived the Amendment as an “unfair attack” on this fishery, and asked why no additional restrictions were proposed for the General, Harpoon, or Angling categories. Other commenters did not want one user group in the fishery to bear the regulatory burden, but believed that all should sacrifice for the good of the fishery as a whole.

Response:

The focus of Amendment 7 is the list of stated objectives, including reducing and accounting for dead

discards, optimizing quota allocations, and enhancing reporting and monitoring. Although many of the measures being implemented will apply to vessels fishing with pelagic longline gear, all user groups will be subject to new regulations as appropriate and necessary, to contribute to the sustainability of the bluefin fisheries. Amendment 7 fundamentally alters the pelagic longline bluefin tuna management structure in order to decrease dead discards and increase accountability, yet it also implements new restrictions for vessels fishing under the other permit categories. Although the components of the regulated bluefin fisheries are very different and therefore have been subject to different restrictions in the past, NMFS developed the Amendment 7 management measures based upon a common set of objectives.

Comment 6:

NMFS should exempt pelagic longline fishery participants that have never interacted with bluefin tuna from the programs proposed in Amendment 7.

Response:

Amendment 7 enhances long-term sustainability of bluefin tuna through reduced dead discards, improved monitoring, increased flexibility in the quota system to both account for dead discards and optimize allocation of quota among the diverse bluefin fisheries, and increased accountability in the pelagic longline fishery. NMFS acknowledges that some pelagic longline vessels may not encounter bluefin tuna as a function of where and how those individuals fish. However, the effective implementation of the management measures requires consistent treatment and participation of all of the participating vessels. NMFS cannot exclude individual HMS pelagic longline fishermen from the provisions of Amendment 7 given the mobility of the pelagic longline fleet and uncertainty about bluefin interactions by individual vessels in the future. Through this Amendment 7 final rule, NMFS is redesigning many operational aspects of the entire pelagic longline fleet. Exclusion of a small pool of individuals would create an inequitable management environment across the fleet. The measures implemented by this final rule do, however, include specific provisions that are based on the data that indicate that some participants have few or no interactions with bluefin. For example, under the IBQ program, eligible permitted vessels will receive a percentage share of the overall pelagic longline bluefin quota. The amount of quota share, either “high”, “medium”, or “low” will depend in part upon the vessel's historical rate of bluefin interactions. Vessels with a relatively low rate of bluefin interactions will qualify for a higher share of the total bluefin quota than vessels with a higher rate of interactions, and have access to the Cape Hatteras Pelagic Longline Gear Restricted Area.

Comment 7:

Several commenters stated that the solution to the challenge of how to account for all catch (landings and dead discards) in the context of a limited quota is to increase the amount of quota allocated to the United States through ICCAT (instead of the measures proposed under Amendment 7).

Response:

Although a larger U.S. quota would facilitate easier quota accounting (

i.e.,

ensure that the total bluefin landings and dead discards do not exceed the total bluefin quota), a larger quota, without concurrent changes to the 2006 Consolidated HMS FMP is a short-term solution and would not achieve the broader objectives of Amendment 7 or the 2006 Consolidated HMS FMP. For example, a larger quota would not reduce the relative amount of dead discards of bluefin by the pelagic longline fishery, increase accountability for the pelagic longline fishery, optimize and provide additional flexibility to the quota system, or enhance reporting and monitoring. Furthermore, the United States does not independently set the quota at ICCAT and any quota established must be based on the best available scientific information ICCAT members (including U.S. delegates) vote to recommend an appropriate bluefin quota, based on the recommendation of the ICCAT scientists (which include U.S. scientists).

3. Codified Reallocation

Comment 8:

Many commenters did not support reallocation of additional quota to the Longline category as a means to achieve the Amendment 7 objectives. They stated that shifting quota would not reduce interactions with bluefin or dead discards and that providing additional quota would undercut the benefits of a “catch cap” (

i.e.,

setting a strict maximum/cap on the amount of bluefin that could be caught, including dead discards and landings), would discourage the use of alternative gears, and would reward a “destructive fishery” by moving quota from quota categories that fish with more selective gear to the Longline category, which fishes with less selective gear and has more bycatch.

Many commenters supported the codified reallocation for the reasons NMFS stated in the proposed rule, as well as other reasons including the statement that the Longline category may have a smaller `carbon footprint' than the other quota categories; the other categories are frequently under-harvested; the Longline category provides the U.S consumer access to important food sources; the General category exports much of the bluefin tuna it catches; and all user groups should bear the regulatory burden.

Response:

Amendment 7 implements systematic management and operational changes to reduce bluefin bycatch and maintain the pelagic longline directed fishery and the other bluefin tuna fisheries. The combined measures of this final rule, which include modified quota allocations, gear restricted areas, and individual bluefin quotas, will reduce bluefin catch and provide incentives to utilize alternative, more selective gear types. To achieve the Amendment 7 objectives of reducing dead discards while minimizing associated reductions in target catch, NMFS will allocate bluefin quota to the Longline category in amounts that exceed its current allocation of 8.1 percent, but will reduce levels of incidental bluefin catch by the Longline category. NMFS anticipates that the catch of bluefin by pelagic longline gear will be reduced by between 17 and 42 percent, depending upon the amount of quota allocated and leased, and fishery conditions. Some flexibility in the amount of quota allocated to the Longline and other quota categories is needed to accommodate the highly variable bluefin fisheries, as well as to mitigate some of the uncertainty and negative impacts associated with a brief transitional period in the pelagic longline fishery as it adjusts to the preferred Amendment measures.

As explained in the FEIS, there are several reasons why additional quota should be provided to the Longline category, as one element of a more comprehensive strategy to resolve the challenge of accounting for bluefin catch and reducing dead discards. The pelagic longline fishery interacts with bluefin tuna when it targets swordfish, yellowfin tuna, bigeye tuna, and other species, because the occurrence of those species overlap as a result of their similar biology and ecology. The Longline category is required to account for dead discards and landings, yet the historical basis for the relative size of the Longline category's quota allocation (8.1 percent) was only landings, and did not consider the amount of quota that could be necessary to account for dead discards in addition to those landings within the total allowable catch.

Based on the best available information, an allocation of 8.1 percent has been inadequate to account for both

landings and dead discards since ICCAT adopted a requirement to account for dead discards within the existing quota. In recent years, NMFS has accounted for pelagic longline bluefin dead discards by relying in part upon under harvest of quota by other quota categories. The merits of allocating additional quota to the Longline category must be considered in the context of all of the other management measures being implemented by Amendment 7. Because the Amendment 7 measures implemented by this final rule will provide quota accountability on an individual vessel and category-wide basis for the Longline category, the amount of quota allocated to the category is of critical importance. Specifically, when the quota allocated to an individual vessel has been caught, the use of pelagic longline gear by that vessel will be prohibited. If the category-wide quota has been caught NMFS may prohibit all vessels in the fleet from fishing with pelagic longline gear. Based on current information regarding the range of bluefin tuna interactions that can be expected, continuing to limit the Longline category to a quota of 8.1 percent of the available quota would result in a shut-down in the fishery relatively early in the year. Notwithstanding the other measures being implemented by this final rule, which will result in reductions in dead discards by vessels fishing with pelagic longline gear, a quota allocation of 8.1 percent quota would result in a severely diminished or eliminated fishery, contrary to the objective of optimizing fishing opportunities.

Comment 9:

Commenters suggested that the amount of bluefin quota allocated to the Longline category should be reduced, or set at zero.

Response:

As discussed in the response to Comment 8 there are several reasons why the Longline category quota should be increased. Moreover, reducing the Longline category quota would not be consistent with the Amendment 7 objectives and would result in severe economic impacts that can be avoided through the use of other management tools. NMFS designed the quota allocation measures to minimize the economic impacts on the non-longline categories. The amount of quota being deducted from each of the categories (for allocation to the Pelagic Longline category under the “Codified Reallocation Alternative”) is proportional to the size of each category's quota and is relatively small (approximately 7 percent). Secondly, the amount of quota that will be deducted from the categories is fixed, therefore, if the U.S. bluefin quota increases as a result of stock growth, the amount deducted from the various categories will not increase, but the total quota allocated to each category would increase. Furthermore, the other quota allocation measures implemented by this final rule (“Annual Reallocation” and “Modifications to Reserve Category”) provide mechanisms to reallocate quota back to these categories, if quota is available. The “Annual Reallocation Alternative” guarantees a minimum amount of quota to the participants in the Purse Seine fishery, and enables increases in quota allocations over time with increasing levels of bluefin catch. Providing an amount of bluefin quota to the pelagic longline fishery that both reduces dead discards, yet also accounts for a reasonable amount of incidental catch that can be anticipated (based on historical catch rates and the effect of Amendment 7 gear restricted areas) will enable the continued generation of revenue associated with the pelagic longline fishery's target catch.

Comment 10:

One commenter stated that providing 68 mt of “additional quota” to the Longline category is not appropriate, and that the amount should be larger, because the discard estimation methodology that the amount was based on is no longer in use. Another commenter stated that the amount of additional quota should be smaller than 68 mt because the size of the U.S. quota has been reduced since the time the 68 mt set-aside was established.

Response:

Although the codified reallocation measure is intended to facilitate accounting for dead discards by the Longline category, the specific amount (68 mt) is not intended to serve as an estimate of current dead discards or establish a proportion of discards to landings. NMFS prefers 68 mt as the amount of quota to be contributed from all categories, resulting in augmenting the Longline category by 62.5 mt, because the amount of additional quota achieves an appropriate balance of costs and benefits in the fishery and because of its historical relevance as a set-aside for dead discards, the inclusion of which was a critical factor in first establishing the formula under which all categories received their current allocations. No adjustment to those allocations was made when ICCAT first eliminated the dead discard allowance, and such an adjustment clearly is warranted given the resulting management challenges in accounting for both landings and dead discards within the available quota. Furthermore, providing a fixed amount of additional quota to the Longline category effectively limits the amount of reallocation into the future. In contrast, altering the base allocation percentages associated with each quota category would have had the potential effect of increasing the amount reallocation to the longline category if the total U.S. quota increases. Although increasing the amount of quota reallocated to the Pelagic Longline category in association with increases in total quota would facilitate accounting for incidental catch of bluefin and achieve one of the objectives of this Amendment, it would not effectively limit bycatch and reduce dead discards, which are also key objectives of Amendment 7.

Comment 11:

Commentors suggested that NMFS should, instead of the “Codified Reallocation” of quota from all quota categories, reallocate quota from only the Purse Seine category; impose greater restrictions on the pelagic longline fishery to reduce their discards; or implement more restrictive gear restricted areas in the Gulf of Mexico and off Cape Hatteras in order to further reduce incidental bluefin tuna catch.

Response:

NMFS prefers that all quota categories contribute to addressing the challenge of accounting for dead discards, which, as explained in the response to Comment 8 is a problem which has multiple root causes, and is integrally related to the operation and management of the fishery as a whole. This Amendment 7 final rule addresses the issue of the recurring under-harvest associated with the Purse Seine fishery through the “Annual Reallocation” measure, which provides a predictable method to optimize the use of Purse Seine quota that might otherwise remain unharvested. This final rule implements new conservation and management measures applicable only to the Longline category, which will limit bycatch, reduce dead discards, increase incentives to avoid bluefin, and increase accountability. NMFS disagrees that greater restrictions on the Longline category—instead of reallocating a limited amount of quota— would achieve the Amendment 7 objectives in a manner that minimizes economic impacts to the extent practicable. As explained in the response to Comment 9 above, NMFS designed the quota allocation measures to minimize the economic impacts on the non-longline categories. The alternatives take into consideration the relative size of each category quota (in the case of the “Codified Reallocation Alternative”), or the level of activity of vessels (“Annual Reallocation Alternative”), and are designed to consider changing levels of

quota or landings, respectively, in ways that reduce economic impacts.

Comment 12:

Many commenters strongly opposed reallocating quota to the Longline category because of concerns about the economic impacts on a particular geographic region (

e.g.,

New England or mid-Atlantic), or quota category (

e.g.,

the General category or the Angling category). Some commenters urged NMFS to respect the historical allocation percentages, and noted that reallocation would have the effect of pitting the different categories against each other. Some commenters suggested that NMFS consider other regulatory and economic circumstances facing vessels that may be impacted by a reduced quota.

For example, Congressional representatives from Massachusetts, and the New England Fishery Management Council (Council) stated that the proposed reallocation would disadvantage the New England Fishery, the traditional Massachusetts fleet, and shore-side infrastructure, and would allow fleets from other regions to use a disproportionate amount of quota. They were concerned about the commercial fleet that is experiencing economic damage due to the decline in key stocks in the groundfish fishery. The Council suggested that NMFS assess the port-specific impacts of reallocation. A commenter was concerned that recreational vessels in the mid-Atlantic region would be disproportionately affected by quota reallocation because the quota may not last until the time the bluefin are off the mid-Atlantic coast.

Response:

A reduction in quota may impact the revenue associated with a particular quota category or geographic region, or result in secondary economic impacts on a community. The FEIS analysis estimates that reallocation of quota to the Longline category could reduce revenue for individual vessels with a General category permit by $850 and result in total reduction in maximum revenue of $542,000 for all General category vessels. Although thirty percent of the General category permits are associated with the State of Massachusetts (1,150 permits as of October 2013), the total number of active vessels is substantially lower. Of the total number of General category permits issued throughout the Atlantic coast (3,783), the average number of General category vessels landing at least one bluefin between 2006 and 2012 was 474 vessels (total). Thus, the number of active vessels in Massachusetts can be presumed to be substantial fewer than 1,150.

When considering the social and economic impacts of actions, different communities and regions may be impacted to different degrees due to their unique regulatory and economic circumstances. The FEIS contains an analysis of the community impacts from the 2010 Deepwater Horizon/BP Oil Spill, and a 2013 analysis that presents social indicators of vulnerability and resistance for 25 communities selected for having a greater than average number of HMS permits associated with them. Those communities with relatively higher dependence upon commercial fishing included Dulac, LA; Grand Isle, LA; Venice, LA; Gloucester, MA; New Bedford, MA; Beaufort, NC; Wanchese, NC; Barnegat, NJ; Cape May, NJ; and Montauk, NY. The analyses are principally at a fishery-wide, or permit category level. The bluefin tuna fisheries (and other HMS fisheries) are widely distributed and highly variable due to the diversity of participants (location, gear types, commercial, recreational), and because bluefin tuna are highly migratory over thousands of miles, with an annual distribution that is highly variable. The specific ports and communities that provide the goods and services to support the fishery may vary as well, as vessels travel over large distances to pursue their target species. Due to this variability, it is difficult to predict potential revenue and secondary impacts of preferred management measures by port or by state. Vessels fishing in any geographic area in the Atlantic or Gulf of Mexico are likely to have only limited access to bluefin tuna, unless they travel long distances within the bluefin's migratory range.

It is important to note that the actual economic impacts of reallocation of quota depend upon the total amount of quota allocated to (and harvested from) each of the quota categories, as a result of the combined effect of all of the measures that affect quota. For example, in addition to the amount of quota available as a result of the percentage allocations, and deductions for the 68 mt Annual Reallocation, there may be quota available for redistribution to various quota categories. Specifically, pursuant to the preferred “Annual Reallocation” measure, as described in Chapter 2 of the FEIS, if the Purse Seine category has not caught 70 percent of its quota during the previous year, quota may be moved to the Reserve category and subsequently reallocated across multiple user groups. Furthermore, in recent years, many categories have not fully harvested their amount of quota available to them. Thus, the actual impacts of reallocation may be minor or may be mitigated by future reallocation when available.

Reallocation of quota may result in frustration or negative attitudes among fishery participants of different quota categories, due to the changes to an historically accepted quota allocation system, or perceptions of unfairness. However, the modifications to the quota system are warranted for the reasons described in the response to comments 8 through 13 and fair due to the fact that all quota categories are affected in proportion to their quota percentage.

As explained in the response to Comment # 9 above, NMFS designed the quota allocation measures to minimize the economic impacts on the non-longline categories. The management measures take into consideration the relative size of each category quota (in the case of the “Codified Reallocation Alternative”, or the level of activity of vessels (“Annual Reallocation Alternative”), and are designed to consider changing levels of quota or landings, respectively, in ways that reduce negative economic impacts.

Comment 13:

Many recreational anglers wanted to insulate the Angling category from any potential effect of quota reallocation to the Longline category, citing the economic impacts and high value of the recreational bluefin fishery to the economy, as well as the economic investments of the participants and the current regulatory burden such vessels face. Vessel owners with General category commercial permits expressed concern about the potential impacts to the General category. Commenters requested additional quantitative analyses comparing the different quota categories, including primary and secondary impacts.

Response:

As stated above in the response to the previous comment, a reduction in quota may impact the revenue associated with a particular quota category or result in secondary economic impacts on a community. The objective of the allocation measures is not to reallocate quota based on economic optimization, but to: account for bluefin dead discards within the Longline category; reduce uncertainty in annual quota allocation and accounting; optimize fishing opportunity by increasing flexibility in the current bluefin quota allocation system; and ensure that the various quota categories are regulated fairly relative to one another.

The reallocation measures of this final rule will minimize adverse economic impacts to the extent practicable because the relative amount of quota reallocated is small and proportional to the size of the category quota, and the overall quota system will be more

flexible and predictable and able to offset some or all of the negative economic impacts. This approach was developed consistent with our obligation under National Standard 6 (Conservation and management measures shall take into account and allow for variations among, and contingencies in, fisheries, fishery resources, and catches) and National Standard 8 (Conservation and management measures shall, consistent with the conservation requirements of this chapter (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities by utilizing economic and social data that meet the requirements of paragraph (2), in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities.)

Although the FEIS includes estimates of the value of bluefin tuna quota by quota category for comparative purposes, the codified reallocation measure was not based on a specific economic analysis, but the achievement of the stated objectives.

An elaborate quantitative analysis that compares the economic value of the Angling, Longline, and General category fisheries was not conducted in the FEIS due to the different characteristics of the Angling, Longline and General category fisheries, the variable amount of data associated with these fisheries, and the large number of factors and assumptions that contribute to estimating the value of a fishery. For example, under the IBQ system implemented by Amendment 7, bluefin tuna quota may be a limiting factor for a pelagic longline vessel, and therefore the lack of adequate bluefin quota, by even a small amount, could result in a vessel being prohibited from fishing with pelagic longline gear. In that circumstance, the value of the bluefin quota to the vessel owner may be very high, and related to the value of the target catch (

e.g.,

swordfish or yellowfin tuna). On the other hand, the value of a bluefin tuna to a recreational angler or to the recreational fishery at- large may include the value of the recreational experience to the angler, as well as the associated goods and service supporting the fishing trip. The FEIS indicates that the Angling category would potentially face unquantified reductions in economic and social activity associated with the 7.36 percent reduction in available quota.

In contrast, for a vessel fishing commercially in the General category, a high quality bluefin tuna sold to Japan may be extremely valuable and other catch is far less important.

4. Annual Reallocation

Comment 14:

Some commenters supported the annual reallocation measure as proposed, based on the underlying concept of tying the Purse Seine category annual allocation to the level of fishing activity by Purse Seine vessels (

i.e.,

“use or lose”), and the strategy of making unused quota available for use by other quota categories.

Response:

The Amendment 7 annual reallocation measure represents an improvement to the quota system by implementing a predictable means to utilize quota that may otherwise remain unused. Because the reallocation of quota from the Purse Seine category to the Reserve will occur prior to the beginning of the calendar year and prior to the start of the Purse Seine fishery, there will be increased predictability in the quota system. In contrast, in the past, there was uncertainty that resulted from the fact that the amount of unharvested quota associated with the Purse Seine category which would be available for quota accounting was unknown until the end of the calendar year. Because of that timing problem, the ability for other users to catch any unharvested quota was markedly diminished.

Comment 15:

Commenters suggested various modifications to the proposed annual reallocation measure. One commenter suggested that the concept be applied to the individual vessel instead of at the scale of the whole Purse Seine category in order to prevent the situation where an individual vessel may be disadvantaged. One commenter suggested that only 25 percent of the Purse Seine quota should be available for reallocation, instead of 75 percent. A commenter suggested that more than one year of catch should be the basis of the allocation, instead of a single year. One commenter suggested that the annual reallocation alternative be combined with an alternative that was not proposed, which would have allocated 40 percent of the Purse Seine category to the Longline category.

Response:

In response to the comment that the annual reallocation measure should be implemented at the level of the individual vessel in order to prevent a situation where a vessel fishes its full allocation but, due to inactivity by other vessels, is only allocated a portion of its base allocation for the subsequent year, NMFS modified the preferred alternative, and is implementing the measure at a vessel level (as described in detail in the preamble above, and the FEIS). Under the measure implemented by this final rule, annual reallocation will be based on the previous year's individual purse seine participants catch rather than category-wide catch. This management measure will tie quota allocation more closely to individual Purse Seine participants catch and create incentive for fishery participants to remain active in the fishery. Thus, the individual allocation could either increase or decrease. Without this modification to the alternative (from that proposed), individual allocations would be tied to the catch of the other participants in the fishery, which could have unfair results if catch were to vary greatly among the vessels. For example, in a year where overall category landings were low, an individual purse seine participant could be allocated a relatively low amount of quota, even if they landed a substantial portion of their allocation the previous year. As such, the alternative would not tie the allocation to individual catch and thus would not encourage full use of the category quota, which would be inconsistent with the intent of this alternative.

Regarding the comment that only 25 percent of the Purse Seine allocation be available for reallocation (instead of 75 percent), if only a relatively small percentage of the quota were available for reallocation (and a relatively large percentage of the quota guaranteed for the Purse Seine allocation), there would be the possibility that Purse Seine participants remain inactive, yet only a relatively small percentage of the quota is transferred to the Reserve category. Such a scenario, which increases the likelihood that the Purse Seine quota as a whole may not be utilized by any category, would be inefficient and would not optimize the quota system. Making up to 75 percent of the quota available to the Reserve category will maximize the amount of quota that may be reallocated, and will provide a reasonable minimum amount for the Purse Seine participants. The measure implemented by this final rule guarantees vessels 25 percent of their base allocation, but makes up to 75 percent available for reallocation to the Reserve category, while not precluding Purse Seine participants from increasing their catches over time (multiple years).

Regarding the comment that more than one year of catch should be used as the basis of the Purse Seine allocation, a time scale of two years would reduce the relative importance of a single year's catch in determining subsequent quota allocations, but may also decrease the availability of quota. The method of annual reallocation being

implemented (

i.e.,

based on one year) will provide a better balance between providing a fair allocation to the Purse Seine category and providing a predictable system for utilizing quota among all categories that may otherwise be unused, and is consistent with the annual time scale applicable to quota related management measures (

i.e.,

the relevant time scale for most aspects of the quota system is annual).

Regarding the comment that the annual reallocation alternative should be combined with an annual allocation of 40 percent of the Purse Seine category to the Longline category, NMFS determined that the annual reallocation measure better meets the objectives of reducing uncertainty in annual quota allocation and accounting; optimizing fishing opportunity by increasing flexibility in the current bluefin quota allocation system; and ensuring that the various quota categories are regulated fairly in relative to one another. Under the annual reallocation measure implemented by this final rule, the amount of quota allocated to Purse Seine participants and the Reserve category is responsive to the level of activity of Purse Seine participants, but will not reduce the size of the Purse Seine category percentage (18.6 percent), which is the foundation upon which the allocations to Purse Seine participants are based. In contrast, combining this measure with an annual allocation of 40 percent of the Purse Seine category to the Longline category would substantially reduce the size of the Purse Seine allocation regardless of the level of activity by Purse Seine vessels. Such a reduction is not consistent with the objective of the measure. The objective of the management measure is not to reduce the size of the Purse Seine allocation, but to make Purse Seine quota available for use by other categories in a predictable manner (reflecting a Purse Seine vessel's previous year level of activity), as well as allow levels of fishing activity of Purse Seine vessels to increase within the scope of the category's allocation.

Comment 16:

One commenter supported annual reallocation, but stated that the implementation of the annual reallocation measure should be linked to a Purse Seine fishery start date of June 1, as well as elimination of the provision limiting the relative amount of 73 to 81 inch bluefin Purse Seine vessels may retain. One commenter did not support annual reallocation due to the different retention rules applicable to the Longline and Purse Seine categories. One commenter did not support annual reallocation because of the perception that the Purse Seine category has not had the same fishing opportunities as the other categories due to low availability of giant (greater than 81 inch) bluefin, and the restriction on retention of large medium bluefin.

Response:

NMFS agrees that the Annual Reallocation alternative should be evaluated in the context of other regulations applicable to the Purse Seine category and Longline category. Modification of the start date of the Purse Seine category to June 1 is one of the measures being implemented by this Amendment 7 final rule. NMFS considered but did not further analyze an alternative that would modify or relieve the tolerance limit for large-medium fish in the purse seine category. Such an alternative was not further considered for reasons explained in Chapter 2 of the FEIS, including because recent data was not available about fishery operations that reflected to what extent the purse seine fishery experienced regulatory dead discards as a result of the tolerance limit. In furtherance of gathering such data and in the interest of examining bycatch in the fishery, on August 1, 2014, NMFS issued an exempted fishing permit that will exempt a Purse Seine vessel from the annual incidental purse seine retention limit on the harvest of large medium Atlantic bluefin tuna, in order to investigate and gather such data. NMFS could consider changes to the Purse Seine category size restrictions in a future rulemaking after further data-gathering and consideration. The Annual Reallocation measure will not result in a negative ecological impact due to the different size restrictions applicable to the Purse Seine category and the Longline category as explained in Chapter 4 of the FEIS (the potential change in the amount of bluefin caught of different size categories is relatively small compared with the overall stock size).

Comment 17:

Commenters did not support annual reallocation for a variety of reasons. One stated that the Purse Seine category should not have a fluctuating quota; one was concerned that the Longline category will take the entire Purse Seine quota in the future, and one was concerned that reallocation to the Longline category would increase discards.

Response:

NMFS acknowledges that the Purse Seine quota may fluctuate under the annual reallocation measure, and that a fluctuating quota may have some negative implications for the Purse Seine fishery, such as challenges to long-term business planning, and fluctuating levels of revenue from the Purse Seine fishery. However, in the context of the fishery as a whole, the benefits of the annual reallocation measure are expected to outweigh the negative aspects, and the amount of quota fluctuation may be reduced by a consistent level of Purse Seine catches. Under the annual reallocation measure implemented by this final rule, Purse Seine participants will have similar fishing opportunities as the other commercial categories that direct on bluefin tuna, but if substantial portions of the quota remain unused, there will be a fair system to relocate quota in a predictable and efficient way. The annual reallocation system will also be responsive to any future increased levels of catch by Purse Seine participants. If a Purse Seine participant is allocated the minimum amount of quota (25 percent of its base quota), with increasing catch over time, the individual participant could be allocated 100 percent of their base quota three years after being allocated the minimum amount. For example if during the first year of fishing the participant caught 22 percent of their baseline quota, for year two they would be allocated 50 percent. During year two if the participant caught 46 percent of their baseline quota, for year three they would be allocated 75 percent of its baseline quota. If during year three they caught 71 percent of their baseline quota for year four they would be allocated 100 percent of its baseline quota.

Under the annual reallocation measure, quota will be reallocated to the Reserve category, and potentially then to any or all quota categories. Transfers of quota from the Reserve category may include transfers to the Longline category, but NMFS will consider and balance the needs of the fishery as a whole. Quota could also be allocated to the other fishery categories as appropriate, considering the relevant factors in that year. Specifically, NMFS will base such decisions on the criteria described under the “Modifications to the Reserve Category” measure, as well as other applicable regulations and laws (

e.g.,

the MSA National Standards (NS) such as the NS 9 requirement to minimize bycatch and bycatch mortality to the extent practicable).

5. Modification to Reserve Category

Comment 18:

Several commenters supported the modifications to the Reserve category regulations, which would increase the amount of quota that may be put into the Reserve category and increase the potential uses of Reserve category quota. One commenter stated that NMFS should be authorized to allocate from the Reserve category at any time. A commenter suggested

splitting the Reserve category into quota derived from under-harvest, and quota transferred from the Purse Seine category, to increase transparency. One commenter suggested redistribution of unused Reserve quota to active Longline category vessels during the last quarter of the year. A commenter stated that NMFS should make up to 50 percent of the Reserve quota available to the Longline category during the first three years of the IBQ Program.

Response:

The management measure regarding the Reserve category implemented by this final rule will provide additional management flexibility in the quota system and enable consideration of various quota strategies such as those suggested by the commenters. Although NMFS has the authority to allocate bluefin quota from the Reserve category at any time, the regulations implemented by Amendment 7 will enable NMFS to add underharvest from the previous year and any reallocated quota from the Purse Seine category to the Reserve category base allocation of 2.5 percent. Secondly, Amendment 7 adds new criteria to broaden and clarify the potential uses of the Reserve quota. It is not possible to evaluate the merits of the commenters' specific quota suggestions without any context. There are many potential uses of Reserve quota, including transfer to the Longline category in order to facilitate the transition to IBQs, or transfer to the General, Harpoon, Purse Seine, Angling, or Trap categories if warranted in order to increase fishing opportunity (while still preventing catch from exceeding the overall U.S. quota, and abiding by the other ICCAT restrictions). In order to facilitate transparency and full understanding of the quota system, NMFS will communicate clearly about how quota transfers are distributed among all quota categories, including descriptions of specific amount of quota derived from various sources.

Comment 19:

A commenter did not support the addition of new criteria to the existing criteria regarding in-season transfer of quota among categories because the criteria are long-standing and provide adequate flexibility. Commenters did not want to allow the Reserve category to be “padded” to cover Longline category dead discards, and did not want most of the Reserve quota to go to the Longline category.

Response:

The addition of the new criteria under Amendment 7 will not change the overall scope of NMFS authority to transfer quota among categories, but includes specific criteria that have the effect of clarifying potential uses of quota. NMFS agrees that an excessive amount of quota from the Reserve category should not be used to account for Longline category dead discards and has structured the alternatives to give management flexibility to move available quota to other categories as warranted. As stated in the response to Comment 8, under the Amendment 7 management measures, NMFS will allocate quota to the Longline category in amounts that exceed its current allocation of 8.1 percent of the current annual quota, but will not allow historic levels of bluefin catch by the Longline category catch. In evaluating the amount of quota to reallocate to any category (including the Longline category), NMFS will consider the regulatory criteria for quota transfer, which include broad biological and economic considerations (

e.g.,

“effects of the adjustment on acco

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