Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries Management

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 635

[Docket No. 220919-0193]

RIN 0648-BI08

Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries Management

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This final action will modify Atlantic highly migratory species (HMS) bluefin tuna (bluefin) management measures applicable to the incidental and directed bluefin fisheries through an amendment to the 2006 Consolidated Atlantic HMS Fishery Management Plan (2006 Consolidated HMS FMP). Specifically, this rule will change several aspects of the Individual Bluefin Quota (IBQ) Program, including the distribution of IBQ shares to active vessels only, implementation of a cap on IBQ shares that may be held by an entity, and implementation of a cost recovery program. This rule will also modify bluefin fisheries by discontinuing the Purse Seine category and reallocating that bluefin quota to all of the other bluefin quota categories; capping Harpoon category daily bluefin landings; modifying the recreational trophy bluefin areas and subquotas; modifying regulations regarding electronic monitoring of the pelagic longline fishery as well as green-stick use; and modifying the regulation regarding permit category changes.

DATES:

This final rule is effective on January 1, 2023.

ADDRESSES:

Copies of the supporting documents, including the final environmental impact statement (FEIS), Regulatory Impact Review (RIR), Final Regulatory Flexibility Analysis (FRFA), the Three-Year Review of the IBQ Program, and the 2006 Consolidated HMS FMP and amendments are available from the HMS website at

https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species.

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to the HMS Management Division and to

www.reginfo.gov/public/do/PRAMain.

Find these particular information collections by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function.

FOR FURTHER INFORMATION CONTACT:

Tom Warren—(978) 281-9260 (

Thomas.Warren@noaa.gov

); Larry Redd—(301) 427-8503 (

Larry.Redd@noaa.gov

); Ian Miller—(301) 427-8503 (

Ian.Miller@noaa.gov

); or Karyl Brewster-Geisz—(301) 427-8503 (

Karyl.Brewster-Geisz@noaa.gov

).

SUPPLEMENTARY INFORMATION:

Background

The Atlantic bluefin fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801

et seq.

) and the Atlantic Tunas Convention Act (ATCA) (16 U.S.C. 971

et seq.

). The 2006 Consolidated HMS FMP and its amendments are implemented by regulations at 50 CFR part 635. This final rule implements changes to the bluefin fishery under Amendment 13 to the 2006 Consolidated HMS FMP (Amendment 13). Additional information regarding bluefin management can be found in the Final Amendment 13 (which includes an FEIS, RIR and FRFA); Draft Amendment 13 (which includes a draft environmental impact statement (DEIS), draft RIR, and Initial Regulatory Flexibility Analysis (IRFA)) and proposed rule (86 FR 27686; May 21, 2021); the 2006 Consolidated HMS FMP and its amendments; the annual HMS Stock Assessment and Fishery Evaluation (SAFE) Reports, and online at:

https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species.

In 2015, NMFS published a final rule implementing Amendment 7 to the 2006 Consolidated HMS FMP (Amendment 7) (79 FR 71510; December 2, 2014). That final rule implemented substantial changes to the regulation of bluefin fisheries including the creation of the IBQ Program. In 2019, NMFS completed its Three-Year Review of the IBQ Program (referred to hereafter as the “Three-Year Review”). The Three-Year Review found that the IBQ Program was successful in limiting bluefin incidental catch in the pelagic longline fishery, and providing flexibility in the IBQ system; however, it is likely that the IBQ Program also contributed to reduced revenue and fishing effort during 2015 to 2017. Further, the Three-Year Review noted that a different method of IBQ share distribution may warrant consideration. After releasing the Three-Year Review and considering other changes throughout the fishery, NMFS conducted scoping to consider addition changes to the bluefin fishery (84 FR 23020, May 21, 2019).

On May 21, 2021, NMFS published a proposed rule (86 FR 27686) and released Draft Amendment 13, which included a Draft Environmental Impact Statement (DEIS), and the Environmental Protection Agency (EPA) published a Notice of Availability of the DEIS (86 FR 27593). The proposed rule and Draft Amendment 13 contain background information on the potential changes to the fishery that are not repeated here. The original comment period on the proposed rule ended on July 20, 2021. Based on public requests, the comment period was extended until September 20, 2021 (86 FR 38262, July 20, 2021). NMFS held three public hearing webinars between June 8 and July 14, 2021 (86 FR 3087, June 7, 2021), and briefed the Gulf of Mexico, Mid-Atlantic, and New England Fishery Management Councils. NMFS held two discussions on Amendment 13 with the HMS Advisory Panel (May 25, 2021 and September 9, 2021). During the comment period, NMFS received 47 written comments from individual members of the public and a variety of entities including industry associations, environmental organizations, and states. A summary of these comments and NMFS' responses are found below.

Taking into consideration public comment, NMFS prepared Final Amendment 13, which included an FEIS, RIR, and FRFA, and which analyzed the anticipated environmental, social, and economic impacts of a range of alternatives. NMFS considered 29 alternatives and is implementing 21 measures in this final rule. A summary of the preferred alternatives is provided below. The full list of alternatives and their analyses are provided in Final Amendment 13 and are not repeated here.

Overall, the objectives of this final rule and Amendment 13 are to: (1) Evaluate and optimize the allocation of U.S. bluefin quota among bluefin quota categories considering historical allocations and use, and recent fishery characteristics and trends, to provide U.S. fishing vessels with a reasonable opportunity to harvest the U.S. quota established by ICCAT, facilitate the ability for active HMS directed permit categories to harvest their full bluefin quota allocations, and facilitate directed fishing for species other than bluefin in the pelagic longline fishery while accounting for incidental bluefin catch; (2) Maintain flexibility of the regulations to account for the highly variable nature of the bluefin fisheries, and maintain fairness among permit/

quota categories; (3) Continue to manage the Atlantic pelagic longline fishery consistent with the IBQ Program objectives in Amendment 7 and consistent with the conservation and management objectives of the 2006 Consolidated HMS FMP and its amendments, and consistent with all applicable laws; and (4) Modify the management of the pelagic longline fishery in response to the Three-Year Review and in response to important relevant prevailing trends (

e.g.,

declining fishing effort and revenue for target species). This final rule implements the preferred alternatives identified in the Final Amendment 13/FEIS.

In developing the final measures, NMFS considered these objectives, public comments on the proposed rule and Draft Amendment 13 (which included a DEIS, draft RIR, and IRFA); input from the HMS Advisory Panel; and the FEIS, RIR and FRFA analyses. In response to public comment on the proposed rule and Draft Amendment 13/DEIS, NMFS made numerous changes from the proposed rule in the final rule. The first change implements a dynamic determination of IBQ shares based upon each individual permitted vessel's fishing effort using the number of pelagic longline sets, relative to the total amount of pelagic longline sets fishery-wide, as the measure of fishing effort. A second change is the authorization of a potential, future set-aside of a

de minimis

amount of bluefin quota for new entrants as part of the IBQ Program. A third change includes a low “Gulf of Mexico” (GOM) designated IBQ share threshold of five percent. A fourth change is the requirement for vessel owners to pay for the cost of boom installation because funds are not available from the Agency. A fifth change is the reallocation of the Purse Seine category quota proportionally to all of the other bluefin categories, including Reserve, Longline, and Trap. A sixth change is the adoption of a slightly different Harpoon category daily retention limit measure than was in the proposed rule. A seventh change is a regulatory clarification: adding to the prohibition section an existing requirement that vessels with pelagic longline gear on board are required to retain and land all dead large medium or giant bluefin. All other proposed measures, as well as the proposed abbreviations for curved fork length, Northeast Distant Area, bluefin tuna, electronic monitoring and individual bluefin tuna program, definitions for “vessel monitoring plan” and “curved fork length”, and elimination of the minimum 3-day period between filing a BFT inseason action with the Office of Federal Register and the effective date of the action (50 CFR 635.23(a)(4), (b)(3)) did not change between the proposed and final rules. Measures that are different from the proposed rule are described in detail in the section titled, “Changes from the Proposed Rule.”

NMFS has determined that Amendment 13 and its final rule will not have new or different effects on Endangered Species Act (ESA)-listed endangered or threatened species or designated critical habitat beyond those analyzed in the May 2020 Biological Opinion on the Operation of the Atlantic Highly Migratory Species (HMS) Fisheries Excluding Pelagic Longline and the May 2020 Biological Opinion on the Atlantic HMS Pelagic Longline Fishery. However, in July 2022, NMFSNOAA Fisheries, requested reinitiation of consultation on the effects of the Atlantic HMS pelagic longline fishery due to new information on mortality of giant manta ray that exceeded the mortality anticipated in the 2020 Biological Opinion on that fishery. The anticipated consultation will consider the effects of the 2006 Consolidated HMS FMP and relevant amendments, including Amendment 13, and relevant implementing regulations. Pending completion of consultation, the fishery continues to operate consistent with the Reasonable and Prudent Measures (RPMs) and Terms and Conditions specified in the May 2020 Biological Opinion, and NMFSNOAA Fisheries will continue to monitor any take of giant manta rays in the fishery. Actions within the scope of the May 2020 Biological Opinion and consistent with the RPMs and Terms and Conditions are not likely to jeopardize the species during consultation, consistent with section 7(a)(2) of the ESA. Giant manta ray interactions with the Atlantic HMS pelagic longline fishery are low, with total takes estimated to be well below the levels of takes authorized under the incidental take statement in the 2020 Biological Opinion. In addition, the species is not thought to be in peril in the Atlantic, the level of potential mortalities is considered to be low, and extrapolated mortalities may overstate the fishery's effects on the species. In accordance with section 7(d) of the ESA, NMFS has determined that, during consultation, pelagic longline fishery activity consistent with the existing May 2020 Biological Opinion will not result in an irretrievable or irreversible commitment of resources which would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures and that continued compliance with the RPMs and Terms and Conditions in that biological opinion will avoid jeopardy to ESA-listed species, consistent with section 7(a)(2) of the ESA.

Final Management Measures

Below is a short description of the final management measures. More information can be found in Final Amendment 13/FEIS.

Pelagic Longline Fishery

Annual IBQ Share Determination

NMFS is changing from a static to a dynamic system for determining IBQ shares (expressed as percentages). Annually, using best available data from a recent 36-month period (three years), NMFS will determine IBQ shareholders' shares based upon each permitted, eligible vessel's number of pelagic longline sets legally made, relative to the total amount of pelagic longline sets legally made by all IBQ shareholders' vessels over that same period. For an IBQ shareholder's vessel to be considered “eligible,” it must have been issued a valid Atlantic Tunas Longline category limited access permit (LAP) when sets occurred during the relevant 36-month period. Based on public comment, this measure was modified from the proposed rule, which would have used landings of designated species and four percentile (tiers) for establishing IBQ shares. As described in § 635.15(c), best available data as determined by NMFS may include vessel monitoring system (VMS) reports, and may also include logbook, electronic monitoring (EM), or permit data. NMFS will only count one pelagic longline set per day, in order to discourage deployment of short sets for the purpose of influencing IBQ share determinations. Vessels may deploy as many sets per day as they wish, but only one set per day would count toward the IBQ share determination. After determining IBQ shares, NMFS will distribute IBQ allocations, but only to IBQ shareholders that have vessels with current, valid permits at the time of the annual distribution of IBQ allocation.

Under this measure, during the last quarter of each year, NMFS will notify Atlantic Tunas Longline permit holders via electronic methods (such as email) and/or letter to inform them of their IBQ shares, their IBQ allocations, and the regional designations of those shares and allocations for the subsequent fishing year; whether adjustments were made to GOM-designated shares due to the GOM shares cap; and whether the

low GOM-designated share threshold has been triggered. This notification will represent the initial administrative determination (IAD) of the permit holder's IBQ share and allocation. An Atlantic Tunas Longline category permit holder may submit a written petition of appeal of the following aspects of the IAD: (1) eligibility for quota shares based on ownership of an active vessel with a valid Atlantic Tunas Longline category permit; (2) IBQ share percentage; and (3) IBQ allocations. A permit holder may also appeal NMFS' determination of the number of pelagic longline sets legally made by its permitted vessel. However, an adjustment of GOM shares (§ 635.15(c)(3)(ii)) or inseason quota adjustment (§ 635.15(e)(3)) is not subject to appeal. Appeals must be filed with the National Appeals Office (NAO) within 45 days after the date the IAD is issued, and will be governed by NAO rules of procedures at 15 CFR part 906.

Appeals based on permit history would be based on NMFS permit records. NMFS will only use the relevant 36 months of data described in § 635.15(c) to determine the numbers of pelagic longline sets made. No other proof of sets or permit history will be considered. Copies of written documents will be acceptable; 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 Law Enforcement for investigation. Appeals based on hardship factors will not be considered. Consistent with most limited effort and catch share programs, hardship will not be 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. NMFS may utilize some bluefin quota from the Reserve category to accommodate permitted vessels that are deemed eligible for shares through the appeals process, to provide a permitted vessel an increased quota share.

As described in Amendment 13, this measure provides separate consideration to participants in the Deepwater Horizon Oceanic Fish Restoration Project (OFRP) as appropriate. The Deepwater Horizon OFRP is a program conducted as a partnership between NMFS, the National Fish and Wildlife Foundation, and pelagic longline fishermen to restore damage caused by the Deepwater Horizon oil spill. The OFRP program began after Amendment 7, and was therefore not a consideration in the determination of IBQ shares in Amendment 7. More information about the Deepwater Horizon OFRP may be found at

https://www.nfwf.org/programs/deepwater-horizon-oceanic-fish-restoration-project.

Based on public comment, Amendment 13 also adds to the framework provisions of the 2006 Consolidated HMS FMP the authority to set aside a

de minimis

amount of bluefin quota from the Longline category quota prior to calculating the annual IBQ allocations (based on the annual share determinations described above), and the final rule makes a parallel edit to 50 CFR 635.34(b) (framework procedures). NMFS is not implementing a set aside through the final rule, thus at this time, the provision will have no effect on the amount of Longline quota allocated to Longline category vessels. As needed, NMFS would conduct future rulemaking and associated analyses to set the precise amount of set aside, and the requirements, process, and conditions associated with distributing IBQ allocation to new entrants.

Regional Designations of IBQ Shares

In conjunction with the dynamic IBQ share and allocation measures, this final rule also modifies the regional Gulf of Mexico and Atlantic designations, while maintaining a cap on allowable bluefin catch from the Gulf of Mexico. Currently, IBQ shares and resultant allocations are designated as either GOM or “Atlantic” (ATL) based on the geographic location of sets used in the determination of those shares and allocations. Existing regulations provide that only GOM IBQ allocation may be used to account for bluefin incidentally caught in the Gulf of Mexico, while either ATL or GOM IBQ allocation may be used to account for bluefin in the Atlantic. Per Amendment 7, 35 percent of the total Longline category quota is designated as GOM, and 65 percent designated as ATL. This final rule continues to cap the amount of quota that can be designated as GOM at 35 percent and retain the accounting rules for regional IBQ allocations, but as explained below, provides for authority to reduce the 35-percent GOM cap, annual adjustment of regional designations, and a low GOM designed shares threshold. Under these regulations, if a vessel does not receive GOM designated IBQ shares and resulting allocation (because the vessel had no pelagic longline sets in the Gulf of Mexico during the relevant 36 month period), but wishes to fish in the Gulf of Mexico, they would need to lease GOM designated IBQ allocation initially. If the vessel fished in the Gulf of Mexico (using leased GOM IBQ allocation) it would subsequently be eligible for GOM designated IBQ shares (and allocation) the following year based on the number of sets fished in the Gulf of Mexico.

The final rule includes a regulatory mechanism for reducing the 35-percent default GOM cap, as needed to achieve conservation and management objectives. A determination to lower the cap would be based upon consideration of the existing determination criteria used in making inseason or annual adjustments to quota, which include a wide range of considerations including consistency with the FMP objectives (§ 635.27(a)(8)). A cap reduction may be for all of a calendar year, or a portion of it, as appropriate. NMFS would notify the public of changes to the 35-percent default cap and publish any modification to the cap in the

Federal Register

.

Annually, NMFS will determine the total amount of IBQ shares and resultant allocations for each region based on the geographic location of sets used in the determination of those shares and allocations. NMFS will use the relevant 36 months of best available data described above under

Annual IBQ Share Determination.

GOM-designated shares thus could be less than the default 35-percent GOM share cap. If NMFS calculates that the amount of GOM designated IBQ shares (based on sets) will be greater than the GOM share cap (

i.e.,

35 percent (or lower if adjusted)), NMFS will reduce the GOM designated IBQ shares to equal the GOM share cap in effect. The reduction in total GOM share percentage would be achieved through equal proportional reductions among IBQ shareholders with GOM designated IBQ shares across the four share percentages. The ATL shares would be increased in an analogous manner, so that the total share percentages add up to 100 percent. NMFS will notify affected permit holders of any reductions in their IBQ share percentage resulting from this adjustment. This adjustment would not be subject to appeal, because it is not a determination based on the data associated with an individual shareholder, but based upon the need to reduce the total amount of IBQ shares across all shareholders, consistent with the applicable GOM share cap.

Another change since the proposed rule is the addition of a low GOM designated share threshold, in response to a concern that potential, future declines in effort in the Gulf of Mexico could result in a very low percentage of GOM-designated shares in some years and severely limit operation of the fishery.

See

comment 8 summary under Response to Comments below. NMFS

agrees that such a situation could result in poor functioning or disruption of the IBQ Program, result in further declines in fishing effort or participation in the fishery, or prevent utilization of available IBQ allocation.

See

response to comment 8 below. In response, the final rule provides: if the total amount of GOM-designated IBQ shares is 5 percent or less of the total IBQ shares (ATL plus GOM shares), NMFS will file an action with the Office of Federal Register for publication that suspends for that year the requirements to account for bluefin caught in the Gulf of Mexico with GOM IBQ shares and resultant allocations and to use GOM IBQ allocation to satisfy the minimum GOM IBQ allocation requirement. The maximum allowable bluefin catch from the Gulf of Mexico will be the weight of bluefin associated with the cap on GOM designated shares (

i.e.,

the default level of 35 percent, or lower if modified). If this level of catch were reached or projected to be reached, NMFS would prohibit vessels from fishing with pelagic longline gear in the Gulf of Mexico for the remainder of that year. When determining the percentage of IBQ shares, NMFS will use the relevant 36 months of best available data described above under

Annual IBQ Share Determination.

If this threshold is triggered, any vessels fishing in the Gulf of Mexico would still need to account for bluefin catch (landings or dead discards) and have the minimum IBQ allocation of 0.25 mt ww (551 lb ww) before departing on the first fishing trip in a calendar year quarter. However, they may use either GOM or ATL shares and resultant allocations, received through the dynamic allocation process or leasing. NMFS will notify vessel owners if the threshold is triggered when NMFS notifies them of their annual IBQ shares and allocations.

Cap on IBQ Shares Held or Acquired

This final rule caps the percentage of IBQ shares that an entity may hold or acquire at 25 percent of the total IBQ shares and the corresponding amount of IBQ allocation associated with the IBQ shares. The 25-percent cap applies whether the shares were accrued by an entity through the ownership of multiple Atlantic Tunas Longline permits and/or high fishing effort. The cap will apply to the sum of shares or IBQ allocations an entity controls, whether the entity is associated with a single or multiple Atlantic Tunas longline permits. The cap is not intended to restrict the use of IBQ allocation to account for bluefin catch or leasing of IBQ allocation. NMFS will implement this restriction based on the best available information such as data submitted in support of permit and IBQ Program requirements.

IBQ Program Dealer Reporting Requirements

This final rule modifies two aspects of the dealer reporting requirements for the IBQ Program. First, this measure will eliminate the reporting of bluefin dead discard information by the dealer. The dealer will continue to be required to enter the data on bluefin landings into the Catch Shares On-line System via the dealer account.

Second, this measure will eliminate the current requirement that vessel operators/owners confirm the landing information entered into the Catch Shares On-line System by the dealer is accurate by entering the personal identification number (PIN) associated with the vessel account. This measure will be combined with a new email notification by NMFS via the Catch Shares On-line System (or a message within the System) that will inform the vessel owner when a dealer conducts a bluefin landings transaction with that vessel's IBQ account. This notification will provide a means of vessel owner oversight of dealer transactions with their IBQ vessel account.

Measures Related to Electronic Monitoring (EM)

This final rule requires that the vessel operator mail the electronic monitoring system's hard drive(s) within 48 hours after the completion of every other trip (every second trip), instead of after each pelagic longline fishing trip. An exception to this requirement is that if the hard drive is at capacity (full) after one trip, as indicated by the EM system, the vessel operator must mail the hard drive at the end of that trip. And, vessel operators must ensure that hard drives have the capacity to record the full trip before departing on a trip. This final rule clarifies and expands the regulations to require installation of semi-permanent hardware, if necessary, to mount and install video cameras at locations on vessels to obtain optimal views. NMFS or its designees, working in conjunction with the vessel owner/operator, may require relatively minor modifications to the vessel structure to mount cameras in locations that provide views required under existing regulations of the vessel and adjacent areas (50 CFR 635.9(c)). In some cases, NMFS or its designees may require the installation of the rail camera in a particular location on the vessel's structure, or installation of hardware such as a boom on a structure near the vessel's rail for the purpose of obtaining a different camera angle with the side of the vessel to optimize the view of the area of the water surface and seaward of the rail, down to the water surface, where the gear and fish are hauled out of the water. A boom will likely be a customized piece of hardware that is fixed or movable (

e.g.,

extended or lowered prior to fishing activities starting). The details of any camera installation requirement or protocols will be recorded in the vessel's Vessel Monitoring Plan.

The cost associated with the installation of booms would be paid by vessel owners (approximately $1,000 or less). The Draft Amendment 13/DEIS stated that NMFS would pay the costs of boom installation, as funds are available. In the Final Amendment 13/FEIS, NMFS analyzed the impacts and determined that boom installation should be paid for by individual vessel owners, given that appropriated funds are not available for this purpose. This approach to industry-funded implementation is consistent with NMFS Service Procedure 04-115-02: Cost Allocation in Electronic Monitoring Programs for Federally Managed U.S. Fisheries, which generally specifies the transition of certain costs to the fishing industry.

The third change made to the electronic monitoring program by this final rule is a requirement for specific fish handling procedures and the installation/placement of a measuring grid on deck, in view of one of the cameras. As instructed and specified by NMFS, the vessel crew will be required to place retained fish on a mat or carpet with grid lines or a grid painted on deck in view of the processing camera, so the video recording included images of the fish on the grid. The grid may be customized to an individual vessel while also having lines of standard intervals. The specifications of the measuring grid will be provided in each individual vessel's Vessel Monitoring Plan (VMP). During the year following the effective date of this rule, NMFS or the NMFS-approved contractor will work with the vessel owner of each vessel to update the VMP. Once the VMP is approved and signed by NMFS or the NMFS-approved contractor, the vessel owner will have six months to install the measuring grid as specified in the VMP. The flexibility of the timing of the full implementation of this measure will provide time for NMFS and the NMFS-approved contractor to complete more detailed standardized specifications and the printing of measuring mats/carpets or customized painting.

Cost Recovery Program

The Magnuson-Stevens Act provides NMFS the authority for recovering fees paid by limited access privilege holders of up to three percent of the ex-vessel value of fish harvested under the limited access privilege program to cover the incremental costs (incurred by NMFS) directly related to and in support of management, data collection and analysis, and enforcement activities for the program (

e.g.,

the IBQ Program). This final rule implements a flexible cost recovery program. No fees will be charged if the costs of collecting the fees exceed estimated fees to be recovered. Annually, NMFS will estimate its incremental costs associated with the IBQ Program (including costs associated with administering the cost recovery program) and the total ex-vessel value of bluefin sold from the pelagic longline fishery (including bluefin caught with green-stick gear). NMFS will notify the public whether a cost recovery fee will be charged for the year. If NMFS determines the annual cost recovery fee is warranted, NMFS will notify the permit holders that landed bluefin under the IBQ Program, including those caught with green-stick gear (based on dealer landings data), of any fees to be charged. Permit holders will be billed based on the ex-vessel value of the bluefin sold. Permit holders would pay the cost recovery fee through the Catch Shares On-line System website and the associated

pay.gov

link.

Modification of Bluefin Quota Category Allocation Percentages

This final rule changes the mathematical method used in the annual quota allocation process to achieve a similar result through simpler means. Under current regulations, each quota category (including the Longline category) is annually allocated a percentage of the U.S. bluefin quota after 68 mt (

i.e.,

the historical 68-mt dead discard allowance, as described in Amendment 7) is subtracted from the baseline quota and allocated to the Longline category. This process was intended to have all bluefin quota categories contribute proportionally to the 68 mt provided to the Longline category annually. This final rule replaces the two-step process of subtracting the 68 mt from the U.S. baseline quota and then applying the category percentages, with a one-step process applying slightly revised category allocation percentages.

Purse Seine Category

This final rule discontinues the Purse Seine category and redistributes Purse Seine category quota. NMFS is removing purse seine from the list of authorized gears and removing other references in the regulations to the purse seine fishery, including references to Purse Seine category quota, permits, nets, sets, vessels, and participants. In the proposed rule, the Longline and Trap categories were not reallocated any Purse Seine quota. Based on public comment and a refined analysis, NMFS determined that these incidental quota categories should be reallocated Purse Seine quota. See response to comment 22 under Response to Comments (including Longline category in reallocation due to change in IBQ leasing market as a result of discontinuation of Purse Seine category and also including Trap category). As such, the Purse Seine category quota (18.6 percent of the total U.S. baseline bluefin quota, under current regulations) will be reallocated proportionally to all of the other bluefin quota categories (General, Angling, Harpoon, Longline, Trap, and the Reserve) (Table 1). The quota allocations associated with the revised percentages will be based on the bluefin quota implemented June 1, 2022 (87 FR 33049).

Table 1—Bluefin Quota Categories, Current and Amendment 13 Percentages, and 2023 Allocations

[mt]

Bluefin quota category

Current

percentage

Amendment

13 percentage

2023 Allocations

(mt)

General

47.1

54

710.7

Angling

19.7

22.6

297.4

Harpoon

3.9

4.5

59.2

Longline

8.1

15.9

209.3

Trap

0.1

0.1

1.3

Reserve

2.5

2.9

38.2

Total U.S. Baseline Quota

1,316.14

Table 2 shows the subquotas for the General and Angling categories for 2023 based on this final rule and bluefin quota rule (87 FR 33049, June 1, 2022).

Table 2—Bluefin Subquotas for the General and Angling Categories for 2023

Category

Subquotas

General

710.7

January-March

37.7

June-August

355.4

September

188.3

October-November

92.4

December

37.0

Angling

297.4

School

134.1

Reserve

24.8

North of 39° 18′ N. lat

51.6

South of 39° 18′ N. lat

57.7

Large School/Small Medium

154.1

North of 39° 18′ N. lat

72.7

South of 39° 18′ N. lat

81.4

Trophy

9.2

Gulf of Maine Trophy Area

2.3

Southern New England

2.3

Trophy South

2.3

Gulf of Mexico

2.3

* Due to rounding, the sum of the General category sub-quota period values do not equal 710.7.

Angling Category

This final rule modifies the current Angling category Trophy North subquota areas and allocations specified at 50 CFR 635.27(a)(1), by dividing the northern area into two zones: north and south of 42° N. lat. (off Chatham, MA). These newly-formed areas are named the Gulf of Maine trophy area and the Southern New England trophy area, respectively. The net result is that the Trophy quota is divided among four geographic areas (in the Atlantic and Gulf of Mexico) and each area will receive an equal amount of quota (

i.e.,

the Angling category Trophy quota would be divided equally four ways).

To create the new trophy suballocation for the Gulf of Maine trophy area, NMFS is increasing the allocation for trophy bluefin. Because the amount of school bluefin (27″- <47″) is limited in the codified regulations, and in compliance with the ICCAT bluefin recommendation to limit take to no more than 10 percent of the annual U.S. bluefin quota, any increase to the trophy subquota will need to be balanced with an equivalent reduction of the subquota for large school/small medium bluefin subquota (47″- <73″), which is the remainder of the Angling category quota once the school bluefin subquota and trophy subquotas are subtracted. For example, referring to the current Angling category quota regulations, NMFS will increase the portion of the Angling category quota allocated for trophy bluefin from 2.3 percent to 3.1 percent. This results in a minor decrease in the amount of allocation for large school/small medium bluefin (measuring 47″- <73″). Creation of a Gulf of Maine area and an allocation equivalent to the allocations for the existing areas will provide additional opportunities for anglers fishing north of 42° N. lat. where bluefin are available in summer and fall, including those fishing on HMS Charter/Headboat-permitted vessels. In recent years the northern trophy area has closed between late May and early August, with the quota largely filled with bluefin caught off the states of New York and New Jersey, south of 42° N. lat.

Harpoon Category

This final rule implements a default overall Harpoon category daily retention limit of 10 commercial-sized bluefin per day or trip (

i.e.,

the combined limit of large medium (73″−<81″) and giant (81″ or greater) would be 10 fish). In addition, this final rule allows NMFS to adjust the combined daily retention limit between 5 to 10 fish, based on consideration of the determination criteria at 50 CFR 635.27(a)(8), in order to avoid closing the fishery. This final rule maintains the current regulations regarding retention of large medium bluefin (73″−<81″) (

i.e.,

the range of two (default) to four fish, adjustable through inseason action). For example, if the combined limit were 10 fish, and 2 large medium fish were retained, then the number of allowable giant bluefin would be 8.

Permit Category Change Restrictions

This final rule allows Atlantic Tunas permit holders in the General, Harpoon, or Trap category, or Atlantic HMS permit holders in the Angling or Charter/Headboat category, to change permit categories any time during the fishing year, provided the vessel has not landed a bluefin.

Green-Stick Gear by Pelagic Longline Vessels

This final rule clarifies retention and reporting requirements for bluefin caught with green-stick gear by vessels with valid Atlantic Tunas Longline category permits. Such a vessel is allowed the retention of one bluefin per trip (73″ or greater CFL) taken incidentally by green-stick gear while fishing for other target species. Vessels are required to submit a VMS set report for each green-stick retrieval that interacts with bluefin and report information on the location of the set and numbers and length of bluefin within 12 hours (in addition to the VMS reports for pelagic longline sets). This VMS requirement differs from the VMS requirement associated with the use of pelagic longline gear, which requires submission of a report after each pelagic longline set. Regardless of whether sets are made with green-stick gear or pelagic longline gear, vessels are required to comply with HMS logbook requirements and comply with the IBQ Program requirements regarding accounting for bluefin using IBQ allocation, quarterly accountability, and other applicable regulations. The use of EM Systems is not required for haulback with green-stick gear or to record an image of a bluefin caught with green-stick gear. This measure supports the minimization of dead discards by allowing the incidental retention of one green-stick caught bluefin per trip (73″ or greater CFL).

Other Regulatory Changes

As described below and in the proposed rule, Amendment 13 implements other regulatory changes that will improve the administration and enforcement of HMS regulations and that will not have any environmental, economic or social impacts. 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 50 CFR 635.2, Definitions, abbreviations were added for curved fork length, northeast distant area, bluefin tuna, electronic monitoring and Individual bluefin tuna program. A definition for vessel monitoring plan is added, and the definition of curved fork length is clarified.

Under 50 CFR 635.23(a)(4) and (b)(3), which address the process for inseason changes to the bluefin retention limits, the minimum 3-day period between filing an action with the Office of Federal Register and the effective date of the action is eliminated to provide for additional flexibility, as warranted and supported. The 3-day period has been in regulations since at least 1999. This rule removes that minimum period to provide for greater flexibility in management response for the General category. The General category is very

dynamic: fish may swim from Massachusetts to Virginia in three days, there is limited quota and seasonal allocations, and there are high and variable levels of fishing pressure. Given all of this, NMFS may need flexibility to more swiftly implement an inseason action that may provide additional opportunity (in the case of an increased trip limit), or one to slow a catch rate (in the case of a lowered retention limit). NMFS will continue to consider each adjustment on a fact-specific basis, consistent with Administrative Procedure Act requirements and providing for as much notice as possible.

Under 50 CFR 635.27, the subquota period previously referred to as the “January” subquota period will be changed to “January through March” subquota period to reflect the actual duration of the January subquota period, which is not changing.

Response to Comments

NMFS received 47 written comments from individual members of the public, and a variety of entities including industry associations, environmental organizations, and states. All written comments can be found at

http://regulations.gov/

by searching for “0648-BI08”. NMFS also received comments during the webinars and HMS AP meetings. Responses to those comments are below. Comments are organized according to subject.

`A' Alternatives: Modifications to Individual Bluefin Quota (IBQ) Share Eligibility, Distribution and Allocation Methods

Comment 1

NMFS received many comments supporting the preferred alternative of replacing the current system of 136 shareholders with a dynamic system where, annually, permit holders of active vessels would be defined as shareholders. Pelagic longline industry groups that represent pelagic longline vessels supported dynamic allocation, but had different opinions on whether pelagic longline sets or designated species landings should be the basis for IBQ shares. One commenter stated that the current shareholder system in place was punitive in that it provided more bluefin to vessels that had no interactions with bluefin and did not need bluefin quota. One commenter supported a dynamic system of determining shares, but was in favor of distributing IBQ shares and their associated allocations in equal amounts to active vessels.

Response

NMFS agrees that a dynamic determination of active shareholders will improve the distribution of shares among Atlantic Tunas Longline permit holders by more effectively putting shares where allocation is likely to be used. NMFS also agrees that the current share system may be overly restrictive, and the distribution of allocations may not be aligned with the need for quota. Allocating catch shares based on historical catch, which is typical of many catch share programs, may have disadvantages or limited relevance when implemented in the context of a catch share program for incidentally caught species such as bluefin. In contrast, a dynamic share determination, which adapts to changes in fishery participation over time, will better align shares with the need for IBQ allocation, will be perceived as fair, and will continue to provide incentives to reduce incidental catch of bluefin. The relatively small amount of IBQ allocation that shareholders will be distributed and the requirement that all bluefin landings and dead discards be accounted for using IBQ allocation, will continue to provide strong incentives for vessels to modify their fishing behavior to avoid and reduce interactions with bluefin. Based in part on public comment, NMFS has determined that a dynamic determination of shares based on sets would address the objective of providing shares only to vessels that have recently fished. NMFS' response to comments regarding the elements and details of a dynamic system are contained in the responses to comments 2 through 5.

Comment 2

Some commenters supported the use of designated species landings in general, but wanted to include dolphinfish (dolphin) as one of the species that count toward IBQ share determination, because of the importance of dolphin revenue, especially during May. Other commenters noted the exclusion of dolphin as one of the various reasons they did not support the use of designated species landings as the relevant metric upon which to base IBQ shares. They also commented that any species landed by the fleet should be considered as a designated species in the method of share determination. For example it was noted that traditionally, shortfin mako sharks have been a target species and therefore the landings should be credited to fishermen. Some commenters noted the importance of all species landed to the economic viability of the fishery, given the variable nature of species available to the fishery.

Response

NMFS agrees that dolphin is an economically important component of pelagic longline fishery landings, especially during certain time periods. NMFS did not propose inclusion of dolphin in the list of designated species (for the purpose of share determination) because dolphin comprises a relatively low portion of the total pelagic longline landings. Additionally, because of differences in management and data reporting due to the fact that dolphin is not managed under the 2006 Consolidated HMS FMP, it would be difficult for NMFS to compile and analyze the dolphin data annually in an accurate and timely manner. As explained further in the response to comment 3, NMFS is no longer preferring basing shares on designated species landings. In defining designated species, NMFS intended to create a standardized list of a limited number of target species that would be used as a metric of fishing effort in the annual determination of IBQ shares, and as such the availability and timeliness of data was a relevant factor. NMFS agrees that the pelagic longline fishery is a fishery that relies on many species for its revenue, due to the diversity of the fleet and the dynamic, migratory nature of the species it lands.

Comment 3

NMFS received a number of comments regarding the best method of determining shares (

i.e.,

based on hooks, sets, landing, or equal shares). An organization representing pelagic longline businesses stated that determining IBQ shares using designated species landings would incentivize vessels to retain smaller fish or juvenile fish, which they currently release, to enhance the total weight of landings. Vessels would be incentivized to land all swordfish or tunas that come to the vessel, rather than releasing lower quality fish or lower value small fish. Further they stated that landings are not a standardized metric due to differences among pelagic longline vessels in fishing strategy and skill level, and due to landings being driven by prices and dealer demands. A different organization representing pelagic longline businesses supported using designated species landings as reasonable because of the logical relationship between fishing effort, amount of landings and need for IBQ allocation. One commenter stated that basing shares on landings is not fair

because vessels have varied capacities for holding fish. NMFS received multiple comments stating that NMFS should prefer dynamic determination of IBQ shares based on pelagic longline sets because sets are a more reliable measure of the need for IBQ shares. Some commenters supported the use of sets, but suggested that only one set per day be allowed to count toward the determination of shares, because vessels might set multiple sets per day for the sole purpose of influencing their IBQ share percentage. Two commenters stated that hooks are harder to verify than sets. One commenter supported dividing up shares equally among active vessels. NMFS received multiple comments that the method used to determine IBQ shares is not a conservation issue and that NMFS should follow the industry's recommendations for efficient IBQ share distribution.

Response

NMFS acknowledges that each of the methods analyzed for determining IBQ shares annually (hooks, sets, landings, or equal shares) has strengths and weaknesses. Given the diversity of the fleet and the highly variable and migratory nature of bluefin, it is difficult to precisely align the distribution of IBQ shares among vessels with the need for IBQ shares. Although a commenter supported the use of equal shares as a method of distributing shares among active vessels, most commenters supported basing shares on a metric that reflects fishing effort. NMFS agrees with using fishing effort as the basis for determining IBQ shares, given that bluefin is an incidentally caught species, and there is a relationship between the amount of fishing effort and the number of bluefin a vessel is likely to encounter (and the need to account for bluefin using IBQ allocation). While NMFS proposed using designated species landings to determine IBQ shares, in this final rule NMFS is implementing regulations to determine IBQ shares based on the number of pelagic longline sets. The pelagic longline fleet is geographically diverse and includes a range of vessel sizes and fishing strategies. Using a metric of one set (a single deployment and retrieval of pelagic longline gear) per day provides a standardized, uniform method of determining IBQ shares and addresses the concern that a vessel operator might deploy speculative, short sets for the purpose of inflating the IBQ share determination. NMFS can determine the number of sets annually, in a timely manner, using a single data source (VMS or logbooks) and, if necessary, verify the accuracy of the reported data using EM data. A majority of active shareholders would have a larger share percentage under dynamic determination of shares based on sets than they would under the current system (No Action). In selecting the final preferred alternative, NMFS took into consideration public comments, which included different industry recommendations on the method to be applied; how the method of share distribution will influence various aspects of the IBQ Program, such as the IBQ allocation leasing market, vessel incentives to avoid bluefin, and the ability for vessels to account for bluefin catch; and ecological, economic and social impacts. NMFS believes that the preferred alternative is reasonably calculated to promote conservation, because it encourages a rational, well-managed use of fishery resources through a reasonable a balanced allocation approach.

Comment 4

NMFS received multiple comments that quartiles or tiers should not be used to determine IBQ shares, and instead custom IBQ share percentages should be given based on vessel fishing effort. As proposed, some shareholders would have shares that are either larger or smaller than the shares percentage corresponding directly to the number of sets. Commenters stated that due to the differences in the share percentage between adjacent tiers, vessel operators may increase fishing effort for the sole reason of subsequently being put in the next higher tier and increasing their share percentage. They stated that a small amount of additional effort can have a disproportionate impact on the IBQ share a vessel receives, since moving from one quartile to the next higher quartile (tier) results in a large increase in IBQ allocation received (in lb). Commenters also stated that the quartile system is unnecessarily complex. NMFS received comments in support of providing each active vessel at least a minimum amount of IBQ share that would allow them to depart on a fishing trip.

Response

NMFS agrees that tiers based on quartiles (which was proposed), should not be included in the share determination methods for the reasons noted by the commenters, and will instead implement `customized' shares based on the number of pelagic longline sets in proportion to the total number of sets fleet-wide. Basically, this eliminates a step in the process and shares would correspond more directly to effort. Although NMFS proposed using tiers in order to eliminate shares with either a very high or very low percentage, NMFS agrees that `customized' shares are simpler and more equitable than the use of tiers. Using customized shares, no shareholder would receive a share larger or smaller than that which corresponds directly to the number of sets made by the vessel (during the relevant three-year period). NMFS disagrees that each active vessel should receive a minimum percentage that would allow them to depart on a fishing trip. Under the current regulations, before departing on the first fishing trip in a calendar year quarter, a vessel with an eligible Atlantic Tunas Longline category permit that fishes with or has pelagic longline gear onboard must have the minimum IBQ allocation for either the Gulf of Mexico or Atlantic, depending on fishing location. Under a customized share determination method, vessels with a low number of sets may receive a share percentage that results in an IBQ allocation of less than the minimum IBQ allocation required to depart on a fishing trip. While understanding the logic of the commenter's suggestions to implement a minimum share, NMFS disagrees that it is warranted because it would complicate the determination of shares and would be inconsistent with the reasons for implementing customized shares. Adjustment of the lowest shares upward would erode the equitable nature of customized share determination. The shares that are adjusted upward would no longer represent the vessels' number of sets and all of the other shares would need to be adjusted downward slightly to derive the shares used to increase the size of the smallest shares. Vessels that receive a share that is smaller than the minimum IBQ allocation required can lease additional allocation in order to fish.

Comment 5

NMFS received a comment that the location and time of year of fishing activity should be taken into account when determining IBQ shares. The commenter stated that some fishing locations and times are not associated with interacting with bluefin, for example, in the Carolinas during August and September or in the Caribbean throughout the year. Two commenters supported maintaining the current regulations that include any data associated with fishing in the northeast distant gear restricted area (NED) as part of formulas that determine IBQ shares, and maintaining the current IBQ catch accounting rules for fishing in the NED. One commenter did not support

inclusion of trips in the NED, but suggested instead a complex system of rules for how such trips would factor into the determination of IBQ shares. Another commenter suggested that NMFS analyze the impact of dynamic determination of IBQ shares based upon designated species landings as the measure of fishing effort on leasing of IBQ allocation.

Response

NMFS disagrees that the location and time of year of fishing activity should be taken into account when determining IBQ shares. Although the abundance and distribution of bluefin are associated with particular geographic regions and seasons, taking into account patterns of bluefin availability would increase the complexity of the share determination, and may not result in a distribution of shares among vessels that aligns with the need for bluefin allocation. The pelagic longline fishery is dynamic, mobile, and adaptive, with some vessels opportunistically targeting multiple species over wide geographic areas. Inclusion of all fishing activity as the basis of allocation formulas increases fishing opportunity and flexibility for vessels to fish in multiple areas, as conditions warrant. The NED fishery is an intermittent fishery with only a few participating vessels and does not warrant the development of different allocation rules. NED accounting rules take into account the fact that a binding ICCAT recommendation specifies a separate 25-mt bluefin quota to account for bycatch from the NED. Exclusion of NED fishing activity from data used to determine shares may affect profitability of vessel operations or incentives to fish in the NED, and affect fishing for target species. Unless clearly warranted, constraints on fishing for target species are not desirable. Under current regulations, any pelagic longline vessel may fish in the NED. NMFS analyzed the impacts of dynamic determination of IBQ shares and concluded it would enhance the continued success of the IBQ allocation leasing program by the distribution of shares to active vessels. All active vessels would receive IBQ allocation, and the leasing market is likely to continue to function well, with a price similar to or lower than recent prices, because most vessel allocations would increase. Sixty-one of the 91 active vessels would have larger IBQ allocations than they would under the current static determination of IBQ shares.

Comment 6

NMFS received multiple comments expressing concern that the preferred alternative for determining IBQ shares would not facilitate new entrants joining the pelagic longline fishery, as it would be difficult for new entrants to lease IBQ allocation from active vessels and to increase that amount of IBQ share over time.

Response

NMFS has concluded that the determination of IBQ shares based on vessel sets will enhance the continued success of the IBQ allocation leasing market, and therefore IBQ allocation will be available to new entrants to the fishery that do not have IBQ shares at the time of entry into the fishery. Under dynamic share determination, a new entrant to the fishery would need to lease IBQ allocation during the first year of their participation in the pelagic longline fishery. During the second year of participation, the vessel's share percentage would be based on the number of pelagic longline sets relative to the total fishery (during the previous three years). Since 2015 there have been participants in the fishery that were not shareholders, who have relied on leased IBQ allocations from shareholders in order to fish and account for bluefin catch. In light of public comment though, this final rule adds to the framework provisions of the 2006 Consolidated HMS FMP the authority to set aside a

de minimis

amount of bluefin quota for new entrants. Neither the Amendment 13 DEIS nor the FEIS analyzes a full set-aside program. This final rule simply provides for the potential development of such a program in the future, if necessary, should the dynamic allocation provisions finalized in this action not facilitate new entrants. In that case, NMFS would conduct rulemaking to set the precise amount of set-aside, and the requirements, process, and conditions associated with distributing IBQ allocation to new entrants.

`B' Alternatives: Modifications to Rules Closely Linked to IBQ Allocations

Comment 7

NMFS received comments in support of the preferred alternative to determine regional designations of IBQ shares and allocations on an annual basis as part of the annual dynamic allocation process. They indicated that the preferred alternative would allow more flexibility for vessels to fish in the Gulf of Mexico without needing to lease GOM IBQ allocation. The need to lease IBQ allocation was particularly frustrating when vessels had to lease from vessels that were not actively fishing, but simply leasing their IBQ allocation to active vessels.

Response

NMFS agrees that the preferred alternative, which modifies the regional designations so that they are dynamic, would provide additional flexibility for vessels that are interested in fishing in the Gulf of Mexico. A vessel without any GOM IBQ shares during a particular year would need to lease GOM IBQ allocation to fish in the Gulf of Mexico that year, but in the subsequent year, in the context of the dynamic determination of IBQ shares, the vessels would have GOM IBQ shares in proportion to the number of pelagic longline sets in the Gulf of Mexico.

Comment 8

NMFS received a number of comments that did not support the preferred alternative to determine regional designations of IBQ shares and allocations on an annual basis as part of the annual dynamic allocation process. One commenter instead supported Alternative B2, which would remove regional designations altogether but retain the catch cap. Another commenter stated that the regional designations are an unnecessary barrier, an unjustified cost, and an impediment to attaining optimum yield in the fishery. Further, they stated that the preferred alternative did not provide a reasonable opportunity to catch the quota. A commenter stated that constraints in the Gulf of Mexico are not needed because the IBQ Program constrains the impacts of the fishery on bluefin. One commenter was concerned that, in the context of dynamic shares and regional designations, the potential for declining effort in the Gulf of Mexico could result in a low percentage of GOM IBQ shares that could severely limit the operation of the fishery. For example, a reduction in either the number of vessels fishing in the Gulf of Mexico, or reduction in the amount of fishing effort per vessel (or both) would result in a reduction in the amount of GOM designated shares (and IBQ allocation).

Response

NMFS disagrees that the preferred alternative for regional designations would represent an unwarranted barrier or cost to fishing, or that IBQ Program constraints for the Gulf of Mexico are unnecessary. The regional designation rules provide a balance between the need to cap bluefin catch in the Gulf of Mexico, provide equitable fishing opportunities, and modulate pelagic

longline fishing effort in the Gulf of Mexico. The Amendment 7 IBQ Program rules as modified by Amendment 13 are intended to address the fact that the Gulf of Mexico is the recognized spawning ground for western Atlantic bluefin tuna. Under this Amendment 13 final rule, a vessel without GOM designated IBQ shares, but fishing in the Gulf of Mexico would be required to lease GOM IBQ allocation during the first year of fishing in the Gulf of Mexico. However, in the following year the vessel would have GOM designated IBQ shares in proportion to the number of pelagic longline sets in the Gulf of Mexico. Over time, a vessel with increasing levels of fishing effort in the Gulf of Mexico would receive an increasing percentage of GOM designated IBQ shares. This method is a reasonable means of providing opportunities to fish in the Gulf of Mexico, while supporting the objectives of the regional designations. NMFS agrees that under dynamic determination of shares and regional designations, there could be a situation of reduced fishing effort and low GOM designated shares. Under conditions of low GOM shares and allocation, vessels with GOM IBQ shares may be reluctant to lease IBQ allocation to others. If unable to lease GOM IBQ allocation, prospective new entrants to the fishery (without any shares), or vessels with only Atlantic (ATL) designated shares, would be unable to meet the minimum IBQ allocation requirement, and thus be unable to fish in the Gulf of Mexico. Similarly, vessels with GOM designated IBQ shares may be unable to account for bluefin catch. Such serious constraints could result in poor function or disruption of the IBQ Program, and result in further declines in fishing effort or participation in the pelagic longline fishery, or prevent increases in fishing effort or participation. To address this, this final rule includes a GOM designated share percentage threshold. If the total amount of IBQ shares designated as GOM is five percent or less of the total IBQ allocations (ATL plus GOM designated shares), the requirement to account for bluefin caught in the Gulf of Mexico with GOM IBQ allocation, and use GOM IBQ allocation to satisfy the minimum IBQ allocation requirement would not apply. In other words, any vessel would be able to use GOM IBQ

or

ATL IBQ allocation to either account for bluefin catch (landings or dead discards) or satisfy the minimum requirements for IBQ allocation in the Gulf of Mexico. When this low share threshold provision is in effect, the maximum allowable bluefin catch from the Gulf of Mexico will be the weight of bluefin associated with the cap on GOM designated shares (

i.e.,

the default level of 35 percent, or lower if modified). If this level of bluefin catch (landings and dead discards) were reached in the Gulf of Mexico, NMFS would prohibit vessels from fishing with pelagic longline gear in the Gulf of Mexico for the remainder of that year.

Comment 9

NMFS received comments inquiring whether modifications to regional IBQ share designations would impact catch rates of bluefin in the Gulf of Mexico or impact the bluefin stock since spawning adults are found in the Gulf of Mexico.

Response

Amendment 7 established the 35-percent GOM/65-percent ATL regional designation approach for IBQ shares and allocations, in light of the fact that the Gulf of Mexico is recognized as the primary spawning ground for the western Atlantic bluefin tuna stock. Given the annual, dynamic determination of IBQ shares under Amendment 13 and inherent variability in the pelagic longline fishery (see response to comment 5), NMFS anticipates that catch rates of bluefin in the Gulf of Mexico could vary from year to year. However, NMFS does not anticipate that the regional designation approach, as modified under Amendment 13, will result in an increase in incidental catch of bluefin in the Gulf of Mexico above levels of such catch since 2015. To ensure continued protections in the spawning grounds, this final rule establishes a default cap (35 percent of total IBQ shares) on the maximum amount of bluefin that may be caught in the Gulf of Mexico, which could be adjusted downward to achieve conservation and management objectives per the criteria under § 635.27(a)(8).

See

response to comment 10 for further explanation. Further, when the low GOM share threshold provision is in effect, the maximum allowable bluefin catch from the Gulf of Mexico will be the weight of bluefin associated with the cap on GOM designated shares (

i.e.,

the default level of 35 percent, or lower if NMFS modifies the level consistent with other provisions in this Amendment). If this level of bluefin catch (landings and dead discards) were reached in the Gulf of Mexico, NMFS would prohibit vessels from fishing with pelagic longline gear in the Gulf of Mexico for the remainder of that year. The net ecological impact of the Amendment 13 measures on bluefin in the Gulf of Mexico is thus neutral.

Comment 10

NMFS received comments suggesting reduction of the cap on bluefin catch from the Gulf of Mexico from 35 percent to 25 percent due to the regulations not allowing targeted fishing for bluefin in the Gulf of Mexico. Another commenter suggested allowing the use of ATL designated IBQ allocation during the second half of the year.

Response

NMFS does not believe that a 25-percent cap on GOM-designated IBQ shares is needed to protect bluefin in the Gulf of Mexico. Under the measures implemented by this Amendment 13 final rule, the amount of bluefin incidental catch in the Gulf of Mexico would continue to be capped at a default level of 35 percent of total pelagic longline bluefin catch. The total amount of GOM-designated IBQ shares could be even less than 35 percent, as NMFS will annually calculate the total amount (not to exceed 35 percent) based on the percentage of pelagic longline sets in the GOM compared to total sets (using the most recent, three-year period for which NMFS has information). Moreover, if NMFS determines that a downward adjustment is needed to achieve conservation and management objectives, it may reduce the maximum amount of bluefin that can be caught in the Gulf of Mexico, based on the determination criteria at § 635.27(a)(8). There has not been a change in the status of the stock (no overfishing, overfished status unknown), and based on a 2021 stock assessment, ICCAT adopted a moderate increase in the western Atlantic bluefin total allowable catch.

See

87 FR 33049, June 1, 2022 (final rule on Atlantic Bluefin Tuna and Northern Albacore Tuna Quotas). In addition, there has been no increase in fishing effort in the Gulf of Mexico, no increase in catch of bluefin from the Gulf of Mexico, nor other change in the fishery that would support consideration of a more conservative default cap level. As noted above, this final rule authorizes NMFS to reduce the cap, if necessary, for conservation and management reasons. NMFS disagrees that allowing the use of ATL designated IBQ allocation during the second half of the year is a practical means of providing flexibility in the fishery. The regional designation rules provide adequate flexibility and a reasonable opportunity to fish in the Gulf of Mexico, while limiting the amount of potential bluefin incidental catch. Furthermore, a mid-year change

to accounting rules would be impractical to administer in the Catch Shares Online System, the database accessible by dealers and vessel owners, which tracks bluefin catch and implements the relevant accounting rules.

`C' Alternatives: Sale of IBQ Shares

Comment 11

NMFS received several comments in support of the preferred No Action alternative, under which the sale of IBQ shares would continue to be prohibited.

Response

NMFS agrees that the sale of IBQ shares should continue to be prohibited. NMFS has not observed a need for Atlantic Tunas Longline permit holders to accumulate IBQ shares through purchase. For most shareholders, annual allocations combined with a minimal amount of leasing is likely to be sufficient for them to account for incidental bluefin catch. Additional rationale for preferring this alternative is in Chapter 2 of the Amendment 13 FEIS.

`D' Alternatives: Cap on IBQ Shareholder Percentage or IBQ Allocation Use

Comment 12

NMFS received several comments in support of the preferred alternative to cap the accumulated sum of IBQ shares at 25 percent.

Response

NMFS agrees that it is appropriate to cap the amount of shares an entity may hold or acquire at 25 percent of the total shares. The Magnuson-Stevens Act requires that NMFS must ensure that limited access privilege permit holders do not acquire an excessive share of the total limited access privileges.

Comment 13

A pelagic longline association supported the preferred alternative to maintain the current regulations that do not limit the amount of IBQ allocation a vessel may lease, based on the rationale in the DEIS.

Response

NMFS agrees that there should be no cap on the amount of IBQ allocation a vessel may lease. Long-term control of IBQ allocation by a single entity through leasing is not possible, because leasing of IBQ allocation occurs on an annual basis and expires at the end of each calendar year. The most likely reason a vessel might need to lease a large amount of IBQ allocation would be to account for an unusually large incidental catch of bluefin, which is consistent with the objectives of the IBQ Program. The limited amount of IBQ allocation available through annual distribution to shareholders, and the limited amount of IBQ allocation available via leasing (as well as the associated costs), provide strong incentives to avoid bluefin. Furthermore, there are other potential challenges associated with the incidental catch of bluefin by pelagic longline vessels including bluefin weighing down longline gear (which typically catch lighter species) and bluefin market limitations and volatility. Provided the IBQ Program continues to function in a manner consistent with its objectives, with individual vessel accountability for bluefin catch and incentives to reduce interactions with bluefin, there is no need for a cap on the amount of IBQ allocation that may be leased. During development of Final Amendment 13, NMFS became aware of concerns regarding recent, high bluefin landings by a small number of vessels. NMFS considers this to be an unusual event and not reflective of how the IBQ Program has functioned overall. A high bluefin landings event is unusual, and the risk of such an event will likely continue to be rare under Amendment 13.

Comment 14

Several commenters supported simplification of the dealer reporting requirements for the IBQ Program. A pelagic longline association stated that removal of the bluefin dead discard reporting and personal identification number (PIN) requirements would lead to more timely reporting and better data. One commenter expressed the opinion that the passwords associated with the Catch Shares Online System were too complex and had to be changed too often.

Response

NMFS agrees that the removal of the bluefin dead discard reporting and PIN requirements will streamline the dealer reporting requirements. NMFS did not propose or analyze any changes to the password requirements associated with the Catch Shares Online System. Passwords are required elements of computer systems to maintain a high level of data integrity and security.

`E' Alternatives: Adjustments to Other Aspects of the IBQ Program

Comment 15

NMFS received comments in support of the preferred alternative that would require vessels to mail in their EM hard drives after every two trips instead of after each trip, because it would reduce the burdens associated with the requirement to mail hard drives. NMFS received a comment stating that NMFS should implement flexibility in the EM regulations regarding the method of transferring data to the Agency, in order to allow the EM Program to evolve with changing technology without needing further rulemaking.

Response

NMFS agrees that this requirement to reduce the frequency of mailing hard drives to the third-party contractor would reduce the amount of time and costs required of vessel operators as associated with the EM Program. NMFS continually seeks to make its regulations more efficient and flexible, consistent with statutory requirements.

Comment 16

NMFS received comments that regulations for installation of EM cameras should not be expanded due to safety concerns with the installation of booms. Some commenters expressed support or conditional support for mounting one of the video cameras on a boom or telescoping device to obtain a better view of bycatch events as gear is removed from the water. Some commenters said that deployment of booms could be done in a manner that addresses safety concerns, provided NMFS works closely with the individual vessel owners/operators to minimize the chances of the boom interfering with any of the vessel operations. Two commenters supported revising EM regulations to improve vessel-level accountability by making the EM Program more robust.

Response

In 2015, the final rule for Amendment 7 authorized NMFS to “require vessel owners to make minor modifications to vessel equipment to facilitate installation and operation of the EM system,” including “a mounting structure(s) for installation of the camera(s)” (§ 635.9(b)(2)). This final rule clarifies that NMFS may require vessel owners to install permanent or semi-permanent hardware (

e.g.,

booms), if necessary, in order to mount and install video cameras at locations on vessels to obtain optimal views of fish and improve the accuracy of the resulting data. Not all vessels may need additional hardware. If needed, NMFS would coordinate closely with vessel operators to address any vessel operation or safety concerns, taking into consideration the unique layout and

operation of each vessel. A description of the boom configuration would be included in each vessel's Vessel Monitoring Plan, which is a customized description of the specifics of the EM components on each vessel. In addition to the safety aspect of installation, the vessel owner would have substantial input regarding the type and amount of materials used, because they would be paying for the installation. In Draft Amendment 13, NMFS stated that it would pay the costs of boom installation as funds are available. At this time, appropriated funds are not available, thus, if additional hardware is needed, vessel owners would be required to cover the costs of the hardware and installation. The video camera position will need to provide an optimal view of the area of the water surface and seaward of the rail, down to the water surface, where the gear and fish are hauled out of the water, while minimizing potential safety hazards and interference with vessel operations. The process of boom installation will include discussion with vessel owners/operators and looking at current or historical video footage of the views provided by the video camera. NMFS agrees that improvement of the elements of the EM Program may contribute to the continued success of the IBQ Program and vessel-level accountability.

Comment 17

NMFS received comments that additional fish handling protocols for EM should not be specified and that a measuring grid on the deck of the vessel is not needed. Some commenters were concerned that a measuring mat would be hazardous or difficult to secure, or that a painted grid would be impractical because decks are routinely resurfaced. Two commenters, including the EPA, supported the proposed expansion of EM requirements to improve vessel-level accountability. Two commenters supported the preferred alternative provided the grids accommodate individual vessel configurations and maintain safety.

Response

NMFS believes that additional fish handling protocols that incorporate a measuring grid are necessary in order to improve the data quality. The vessel crew will be required to place retained fish on a mat with grid lines or a grid painted on the deck in view of the processing camera, so the video recording includes images of the fish. The use of a standardized grid will enable the video analyst to have a size reference to aid in the estimation of fish size and determination of fish species. For example, the total length of a fish and the relative size of the pectoral fin are some of the characteristics used in species identification. With the use of a reference grid, size estimation would be less affected by camera placement and angle, and the estimation of size and species identification may be improved. Further, a standardized reference grid may facilitate the development and use of computer algorithms and automation of video analysis. NMFS or a NMFS-approved contractor will work with vessel owners/operators to specify a measuring grid that, to the extent practicable, accommodates the unique layout and operations of each fishing vessel. A description of the measuring grid will be included in each vessel's VMP, which is a customized description of the specifics of the EM components on each vessel. The vessel owner will have six months after the VMP is approved to install the measure grid specified in the VMP. NMFS changed its approach from Draft Amendment 13/DEIS, which stated that NMFS would pay the costs of grid installation as funds are available. At this time, appropriated funds are not available and NMFS is now requiring vessel owners to cover the cost of grid installation.

Comment 18

NMFS received a comment about the reasons for the proposed changes to the EM Program, and questioning whether the Program has been successful in corroborating the set-based self-reporting of bluefin catch.

Response

Under the EM Program, NMFS has been successful in corroborating set-based self-reported bluefin catch. NMFS released the Three-Year Review of the IBQ Program in 2019, which provides detailed information on the EM Program. VMS and EM data from 2015 through 2018 indicated that a high percentage of sets with bluefin catch reported via VMS that were audited by review of EM footage were confirmed. Likewise, a high percentage of sets that did not report bluefin catch via VMS did not show bluefin catch in audited EM footage. (Table 6.35 in Three-Year Review of the IBQ Program). Unpublished data from 2019 show a similarly high level of agreement between VMS reports and EM footage. Thus, there is high confidence in EM data on the number of retained fish when compared to VMS data; however, the EM data have relatively high variability in size estimation compared to self-reported data. In addition, the EM data on bluefin discards are less likely to match the VMS data due to discard events that occur outside the camera's field of view. Thus, NMFS is implementing regulations to improve data quality, as explained in response to comments 16 and 17.

Comment 19

NMFS received a comment questioning whether the proposed cost recovery program is consistent with other cost recovery programs administered by NMFS. Another commenter did not support implementation of a cost recovery program, because of the numerous reporting and monitoring costs that the pelagic longline fishery already incurs, and stated that Congress, in the Magnuson-Stevens Act, did not envision cost recovery for an incidental species.

Response

NMFS developed the IBQ cost recovery program in consultation with NMFS staff from other regions with cost recovery programs for limited access privilege programs (LAPP). Differences among cost recovery programs reflect the unique aspects of each fishery managed under a LAPP, consistent with relevant Magnuson-Stevens Act provisions (16 U.S.C. 1853a(e) and 1854(d)(2)). Recognizing that the IBQ Program is unique because bluefin is an incidental catch and not a targeted species, NMFS believes cost recovery for this program is consistent with the aforementioned provisions. As with other cost recovery programs, in the IBQ program, a fee would not exceed three percent of the ex-vessel value of fish harvested under the LAPP (bluefin).

See id.

§ 1854(d)(2)(B). Because bluefin is an incidental species in the pelagic longline fishery, and the IBQ Program provides incentives to reduce interactions with bluefin, landings of bluefin are likely to remain low relative to targeted species. Given the relatively small total ex-vessel value of bluefin incidentally caught and landed by pelagic longline vessels, and the substantial incremental costs to NMFS associated with the IBQ Program, NMFS anticipates that the likely cost recovery fee would be three percent of the ex-vessel value of bluefin sold (or less). As such, three percent of the ex-vessel value of bluefin will likely be a small amount of recoverable costs compared to other cost recovery programs. Therefore, this final rule implements a flexible cost recovery program, under which NMFS would make an annual determination whether a cost recovery fee paid by permit holders participating in the IBQ Program is warranted. If the total fees that could be collected are similar to or less than the administrative

costs of the cost recovery program, no cost recovery fee would be collected.

`F' Alternatives: Purse Seine Category and Quota Allocation Process

Comment 20

Several commenters supported the preferred alternative to change the method of allocating bluefin quota among the quota categories to simplify the process. Two of the commenters stated that the proposed measure would not result in any net gains for the fishery and one commenter noted it was procedural in nature.

Response

NMFS agrees that the preferred alternative to change the mathematical method used in the annual quota allocation process to achieve a similar result through a simpler means is procedural in nature and would not meaningfully impact the net amount of bluefin quota allocated to the quota categories. Instead of a two-step process of subtracting the 68 mt from the U.S. baseline quota and then applying the category allocation percentages, there will be a one-step process applying slightly revised category allocation percentages.

Comment 21

NMFS received many comments in support of the preferred alternative to discontinue the Purse Seine category and reallocate the bluefin quota upon implementation of Amendment 13. Commenters were in agreement with the underlying logic that the purse seine fishery has not been active for many years and that bluefin quota is needed by the other bluefin quota categories that are actively fishing. Furthermore, commenters thought that Purse Seine category participants who are not fishing should not be able to continue to profit by leasing bluefin quota to Atlantic Tunas Longline permit holders.

Response

NMFS agrees that the discontinuation of the Purse Seine category is warranted. The Purse Seine category has been allocated 18.6 percent of the U.S. baseline bluefin quota. Discontinuation of the Purse Seine category and reallocation of its quota will provide additional quota to active fishing categories that are, at times, quota-limited, and increase the likelihood that more of the U.S. quota will be utilized. Bluefin quota allocated to the Purse Seine category has not been used in many years to harvest bluefin using purse seine gear, and a meaningful amount of that quota has not been leased to pelagic longline vessels.

See

response to comment 24 for further details. Quota that is allocated to Purse Seine category participants and then not used is a source of concern to participants of both the directed and incidental bluefin fisheries, who, as a result, may forego potential fishing opportunities. Reallocation of the Purse Seine category quota will also reduce various types of uncertainty that result from the inactive status of the Purse Seine category (see comment 23).

Comment 22

NMFS received comments opposed to the preferred alternative, because it does not reallocate Purse Seine category bluefin quota to the Longline category and would affect IBQ leasing. Commenters noted that pelagic longline vessels have depended on leasing currently available Purse Seine category quota to account for bluefin catch under the IBQ Program, and that Purse Seine category quota provides a safety net in case of unexpected bluefin catch. A pelagic longline association representative stressed the reliance of pelagic longline fishermen on leasing Purse Seine category quota, and stated that the IBQ Program would cease to function without that leasing opportunity. The representative stated that, in recent years, the agency has consistently reallocated 75 percent of the Purse Seine category quota to other categories, leaving 25 percent (4.4 percent of the U.S. baseline quota) available for leasing. Given that, 25 percent of the Purse Seine category quota should be reallocated to the Longline category. The State of Maryland's Department of Natural Resources supported including the Longline category in the reallocation due to their reliance on such quota for leasing. Another commenter stated that the increased IBQ allocation to many active pelagic longline vessels under the preferred IBQ share alternative would not make up for the loss of quota currently available from the Purse Seine category. Other commenters did not think that excluding the Longline category from the proposed reallocation was fair and equitable. One commenter said that an adequate amount of bluefin quota for pelagic longline vessels was very important due to a decrease in the bluefin market and revenue and the relative increase in the cost of leasing bluefin quota.

Response

NMFS agrees that pelagic longline vessels have depended on bluefin quota that they lease from Purse Seine category participants to fish under the restrictions of the IBQ Program. IBQ Program participants require adequate IBQ allocation in order to meet the accounting requirements, participate in the leasing market, and mitigate risk. Adequate IBQ allocation is important to achieve a balance between incentives to reduce bluefin interactions and the ability to fish for target species to maintain profitability and supply the seafood market. In the reallocation method described in the proposed rule, NMFS did not reallocate bluefin quota from the Purse Seine category to the Longline category. After considering public comment, NMFS re-analyzed data regarding the leasing program and concluded that the Longline category should receive reallocated Purse Seine category quota in order to increase the likelihood of maintaining a successful IBQ allocation leasing market in the future, including new entrants. As described in the Final Amendment 13/FEIS, pelagic longline vessels have been increasingly reliant on both the available Purse Seine category quota and inactive pelagic longline vessels as sources for bluefin quota leases. Because the incidental Trap category has a

de minimis

amount of quota and rare bluefin landings, NMFS is including the category in the reallocation too, to simplify the overall reallocation. Therefore, this final rule implements bluefin quota percentages that incorporate reallocation of the Purse Seine category quota to all of the other bluefin quota categories, including the Longline and Trap categories, in proportion to their baseline allocation percentages.

Reallocation of the Purse Seine category quota facilitates directed fishing by the Longline category while accounting for incidental bluefin catch and facilitates the ability for active HMS directed permit categories to catch their full bluefin allocations. Based on the current U.S. baseline quota, the Longline category will receive more quota (34.9 mt) under this final rule than the average amount of Purse Seine leases from 2016 through 2019 (23.9 mt). Given recent lease amounts, NMFS does not believe that reallocation of 25 percent of the Purse Seine category quota (54.88 mt) to the Longline category is needed in order to promote the effective functioning of the IBQ program. Moreover, leasing was not the reason Amendment 7 adopted the annual quota allocation mechanism that guaranteed that a minimum of 25 percent of the Purse Seine category quota would be available to the five historical participants.

See

response to comment 24 for more on the mechanism. Under Amendment 7 rules,

annual allocations to the Purse Seine category are not based on IBQ leasing, but on the previous year's bluefin catch by each individual purse seine vessel, as the intent of the mechanism is to encourage purse seine vessels to catch rather than lease quota.

See

Final Amendment 7 to the 2006 Consolidated HMS FMP at pp. 23-24 (explaining preferred Alternative A3a: Annual Reallocation of Bluefin Quota from Purse Seine Category).

Comment 23

NMFS received comments that supported maintaining the current status of the Purse Seine category and the associated quota rules under which, in recent years, 75 percent of the Purse Seine category quota has been reallocated annually to the Reserve category, and subsequently reallocated to the directed bluefin fishing quota categories. The commenters' view was that the current system of annual redistribution, which relies on the inactive status of the purse seine fishery, works well to meet the needs of the directed bluefin fisheries.

Response

NMFS agrees that there have been benefits for the directed categories due to the lack of purse seine vessels fishing activity and the annual Purse Seine category quota allocation mechanism under the Amendment 7 regulations. Notwithstanding these benefits, there has also been uncertainty each year about the amount of quota that will be in the Reserve category, the amount of quota that NMFS may transfer inseason from the Reserve category to other quota categories, and the timing of such potential transfers. These sources of uncertainty make it difficult for vessel owners to plan their fishing season and may create market uncertainty. Lastly, there is an administrative burden for NMFS associated with conducting inseason transfers. Reallocation of bluefin quota from the Purse Seine category would result in increases in the relative sizes of all of the remaining quota categories, larger baseline quotas, reduced uncertainties, and efficiencies in the management process by reducing the number of inseason actions.

Comment 24

NMFS received comments from a business that currently owns vessels that previously fished in the purse seine fishery that they do not support discontinuation of the Purse Seine category because the revenue from leasing bluefin quota contributes to the financial well-being of their company. They consider the business entities that lease Purse Seine category quota to pelagic longline vessels to be `active', and stated that the proposed measures would render their vessels and permits worthless. One commenter felt that the purse seine fishery should be able to become active again if it wishes, because the purse seine fishery is currently inactive due to high regulatory burdens.

Response

The business that submitted the comments summarized above is not one of the five historical participants in the Purse Seine category. Since 1982, the Purse Seine category has been managed with non-transferrable limited entry permits, and limited to five participants who historically were financially dependent on the fishery. None of those participants uses purse seine gear any longer, nor have they recently. Although they continue to receive quota and may lease it, the current framework has inhibited maintaining and achieving, on a continuing basis, optimum yield in the fishery as a whole. Since Amendment 7 was implemented in 2015, 75 percent of Purse Seine category quota annually continues to not be used for bluefin fishing by purse seine vessels or not be available for leasing under the IBQ Program, and large amounts of quota are ultimately transferred to the Reserve category through an annual process. As a result, there is uncertainty each year about the timing and amount of quota to be transferred between the Purse Seine and Reserve and other categories, administrative burden on NMFS to administer the process, and uncertainty about the amount and price of bluefin quota that might be leased by Purse Seine category participants.

Limited entry was initiated due to the large harvesting capacity of purse seine gear and its ability to exceed U.S. quotas in very short periods of time. Limited entry was implemented with the intent of ensuring that only those persons who had depended on this fishery for all or part of their livelihood were allowed access and this approach was practical given the small pool of ownership in this sector of the fishery. Under this limited entry system, the use of purse seine gear was authorized, and equal baseline quotas of bluefin were assigned to five individual vessel owners. This enabled owners to replace older vessels they owned with newer ones. Thus, NMFS limited the Purse Seine category to only the five participants who historically were financially dependent on the fishery and their five purse seine vessels. Although new entrants are prohibited, an owner of a vessel with an Atlantic Tunas permit in the Purse Seine category may transfer the permit to another purse seine vessel that he or she owns per 50 CFR 635.4(d)(5).

NMFS does not consider the Purse Seine category to be currently active, even though some of the historical permit holders have been leasing bluefin quota to pelagic longline vessels as allowed under the Amendment 7 regulations. Promoting commercial and recreational fishing under sound conservation and management principles and achieving, on a continuing basis, optimum yield from a fishery are key purposes of the Magnuson-Stevens Act. From 2005 through 2012, there was no purse seine fishing activity. From 2013 through 2015, only one Purse Seine category participant fished, making only a few sets, and accounting for only a small percentage of total annual bluefin landings each year (six, five, and four percent in 2013, 2014, and 2015, respectively). Recognizing that there had been low (to no) fishing and consistent underutilization of the Purse Seine category quota, Amendment 7 established the annual allocation mechanism to, among other things, optimize the ability for all permit categories to harvest their full bluefin quota allocations. Under this mechanism, based on their prior year's catch, each of the five historical participants would receive a minimum of 25 percent of

1/5

th of the Purse Seine category quota, even if they did not fish, and up to 100 percent. The goal was to assure some level of fishing opportunity and create incentives for purse seine vessels to remain active in the fishery.

See

Final Amendment 7 to the 2006 Consolidated HMS FMP at pp. 23-24. Since 2015, there has been no purse seine fishing activity. The historical participants sold the vessels that they used to fish for bluefin to new owners that are not historical participants. Currently, there is no entity that fishes for bluefin with purse seine gear. Vessels sold by the historical permit holders have been or may be earning revenue in fisheries for species other than bluefin, and NMFS did not receive public comment that indicates otherwise or that provides specific information related to impacts on permit values. With regard to leasing, it is unclear whether the commenter has in fact been leasing Purse Seine quota, and if so, how. The commenter is not one of the five historical participants and accounts used for leasing are issued to the historical participants. In any event, NMFS did analyze the effect of the amendment on harvesting privileges by estimating potential revenue loss

from leasing bluefin quota and from potential future fishing/landings, and did not receive any public comments or new information since Draft Amendment 13/DEIS that is relevant to, or warrants a change in, these estimates. Even assuming the historical participants no longer obtain the financial benefits of leasing their quota, they have no property interest or other right to an ongoing income stream from those permits. Purse seine permits may not be assigned and are not transferable outside of the historical Purse Seine category participants, and like any limited access privilege may be modified, suspended or revoked. In this instance, NMFS has concluded that, in view of the long-term absence of active fishing, the elimination of the Purse Seine category will best contribute to achieving optimum yield and ensuring the greatest overall benefit to the nation.

Comment 25

NMFS received comments suggesting changes to the proposed distribution of reallocated Purse Seine category quota, including that no quota should be reallocated to the Angling category, additional quota going to the General category should be allocated to particular subquota periods, and more quota should be reallocated to the Harpoon category. One commenter was concerned about the potential ecological impacts of reallocation of Purse Seine category quota to the Angling category, due to the impression that it would represent a shift in the size range of fish caught, from large bluefin to smaller bluefin.

Response

Quota categories are tightly associated with authorized gears and permit types. This structure based on gear and permit type remains a valid way to align quota distribution among diverse fisheries. Modifications to the relative size of the allocations (

i.e.,

the percentages for each quota category) in order to further optimize the use of the bluefin resource should address specific concerns or trends in the fishery. There is no new scientific information or fishery trends that warranted fundamental reconsideration of the entire allocation structure beyond the alternatives examined in this Amendment. This Amendment 13 final rule includes modifications to the relative size of the category allocations (

i.e.,

the percentages for each quota category) in order to streamline the allocation system, and further optimize the use of the bluefin resource through elimination of the Purse Seine category with redistribution to other categories. The fundamental sizes of the different quota categories in relation to each other was neither analyzed, nor changed. The scope and rationale for the allocation changes implemented by this final rule are consistent with NMFS Procedural Directive 01-119-01 “Criteria for Initiating Fisheries Allocation Reviews”, and the 2006 Consolidated HMS FMP. Additionally, NMFS implemented Amendment 12 to the 2006 Consolidated HMS FMP (86 FR 46836, August 20, 2021), an amendment that, among other things, addresses the 2016 revised National Standard guidelines and the 2017 Fisheries Allocation Review Policy Directive 01-119. Amendment 12 established triggers for the review of allocations for quota-managed HMS species, and these factors were appropriately considered within the examined alternatives. NMFS decided there was no need in Amendment 13 to consider fundamental changes to the baseline quota percentages (

see

Section 2.10.6), thus reallocating Purse Seine category quota in proportion to those percentages also seems reasonable.

Although the suggestions that the additional quota being reallocated from the Purse Seine category to the General category should be allocated to particular subquota periods was not within the scope of the action, the justifications cited by commenters for favoring one subquota period or another provided useful information for NMFS' consideration of modifications to the General category subquota periods. Comments pertaining to the General category subquota periods or methods of allocating quota among the General category subquota periods are addressed in Comments 26 and 27. Regarding the potential ecological impacts of reallocation of quota from the Purse Seine category to the Angling category, NMFS has determined that the ecological impacts will be neutral. Although NMFS understands the commenter's concern, which is based on the premise that the harvest of bluefin of different size classes may have different ecological impact, the increase in the size of the Angling category quota is relatively small (from 19.7 to 22.6 percent of the bluefin quota).

`G' Alternatives: Modifications to General Category Subquota Periods and/or Allocations

Comment 26

NMFS received comments that opposed, or asked what the justification was for the preferred No Action alternative to maintain the current structure of the General category fishery time periods and associated subquotas. One commenter stated that current management of the General category favors participants early in the season versus the fall participants over the last several years. They further elaborated that the current fishery has evolved into a part-time fishery with many less experienced recent entrants to the fishery, and noted specific concerns such as poor quality fish landed. They suggested various requirements including: that General category vessels be required to show tax proof of their commercial status and abide by the relevant safety regulations; and that HMS Charter/Headboat vessels fishing under the General category quota verify that they take charter trips.

Response

NMFS agrees that the General category fishery has changed over time. Handgear fisheries that target bluefin have consistently been very active, and the number of permit holders remains high. Increases in landings from the handgear fisheries that began prior to 2015 have continued. With such increases, there has been renewed public interest in the optimal and fair and equitable allocation of bluefin quota among seasons and geographic areas. These occurrences are the reason NMFS considered changes to the General category fishery in this amendment. Notwithstanding these changes to the fishery, based on the analyses in Draft Amendment 13/DEIS and the Final Amendment 13/FEIS (

see

Section 4.7.4), NMFS determined that the current structure of the fishery provides equitable fishing opportunities, as explained further in the response to Comment 27, is not modifying the General category regulations in the final rule. The open access permit categories that allow the use of handgear to target bluefin commercially are intended to provide opportunities for a variety of participants. NMFS acknowledges that among those participants there is likely to be a range in levels of experience and dependence upon the income derived from the fishery. There are licensing and safety regulations in place currently for the HMS Charter/Headboat and General category permitted vessels fishing commercially that do not apply to recreational vessels issued an HMS Angling permit.

Comment 27

NMFS received comments expressing concern with one or more of the alternatives analyzed but not preferred. A commenter stated that the alternative that would allocate the General category quota equally among 12 monthly

subquota periods would benefit southern participants, but adversely affect finances and participation of northern participants. Commenters who are participants in the January through March fishery expressed interest in a larger January through March subquota to have more opportunity earlier in the season. A commenter did not support providing additional quota to the January through March subquota period because it would mean taking away quota from the June through and August subquota period, during the time when there is the highest level of participation by fishermen north of Cape Cod. Similarly a commenter was concerned that the alternative that would extend the January through March subquota period through the end of April would represent a shift in catch and opportunity from north to south, and believed that it would result in negative economic consequences later in the year. A commenter was concerned about the alternative that would increase the September and October through November subquotas, with a corresponding decrease in the June through August subquota. They stated that the quota for the June through August subquota period has been exceeded in recent years and the fishery has been closed prior to August 31. They explained that the greatest fishing effort in terms of man-hours is during the June through August period, and that reducing the quota during this time period would represent a significant adverse impact on fishing opportunity. One commenter suggested that NMFS should prioritize August General category fishing by creating a separate August subquota in order to maximize fishing opportunity and number of participants. The commenter stated that during August the greatest amount of bluefin availability coincides with the greatest amount of fishing effort. Other commenters who are participants in the October through November period or December period fisheries expressed concerns regarding the uncertainty of whether General category quota would remain for the times when commercial-sized bluefin are available in their areas. Some commenters preferred to see more opportunities available when market prices are generally higher, such as in the fall months. Several commenters noted that fall bluefin are the most valuable due to higher fat content and that providing more quota to June through August would increase landings of lower quality and lower value fish. Several commenters stated that commercial fishermen on Cape Cod and the islands of Martha's Vineyard and Nantucket depend on quality fish in the late fall. Allocating the additional quota for the fall would ensure that bluefin quota would last into the fall. Several commenters were concerned that, in recent years, some of the subquotas have been reached and the General category has been closed while fishing opportunities (

i.e.,

fish availability) remained and meanwhile other subquotas are not reached. One commenter stated that NMFS should create a separate November subquota period.

Response

NMFS acknowledges that there are varied views on how the General category could be modified. As noted by commenters, there are potential trade-offs associated with each of the alternatives analyzed, including the preferred alternative, depending upon the time of year or location being considered. The bluefin fishery is highly dynamic because bluefin are highly mobile, with a distribution that changes seasonally and annually. Fishing permits are open access, thus permit holders may fish in any geographic location they choose. Price fluctuations do not show a strong pattern during the year, despite perceptions that prices are higher in the fall. However, there are also predictable patterns in bluefin distribution that are reflected in the current structure of the General category subquota time periods. The larger quota associated with some subquota periods reflects the general seasonality, historical availability, and relative sizes of the historical seasonal fisheries for bluefin. NMFS analyzed various quantitative metrics in Draft Amendment 13/DEIS and the Final Amendment 13/FEIS to enable standardized comparisons among the different subquota periods and alternatives (

e.g.,

Tables 4.32 through 4.40). Standardized metrics are used to compare among quota periods because the quota periods are allocated different amounts of bluefin, and are of different duration. After considering information from recent years, NMFS believes that the subquotas continue to be appropriate, given fish availability, fishing effort, and bluefin landings during the different subquota time periods, and thus provide fair and equitable fishing opportunities. It is important to note that the subquotas work in concert with several regulatory mechanisms that provide flexibility in how the amount of quota is divided among the subquota periods. NMFS may transfer unused quota from one subquota period to a subsequent subquota period in the year such that the quota allocated to subquota periods may increase. Unused quota may, if remaining unused as the year progresses, all be transferred into the December subquota period. NMFS may allocate quota from the December subquota period to the January through March subquota period, may allocate additional quota from the Reserve category, or may utilize changes in retention limits to modify the rate of catch to facilitate the attainment of subquotas and the annual quota.

In 2021, NMFS resumed the use of restricted-fishing days to further facilitate the attainment of subquotas, and a schedule of restricted-fishing days was finalized for 2022 (87 FR 33056, June 1, 2022). The data from recent years suggest that the flexibility in the quota system provided by these regulatory mechanisms is working. Landings (as a percentage of quota) have been increasing in recent years. Subquota periods that have lower percentage allocations have not necessarily been limited by them. For example, during 2018 and 2019, landings during the January through March subquota period were 8 percent and 13 percent (respectively) of the total General category bluefin landings, despite that period having an initial allocation of 5.3 percent of the General category quota. Similarly, during 2018 and 2019, landings during the October through November subquota period were 18 percent and 22 percent of the total General category bluefin landings, despite that period having an initial allocation of 13 percent (Figure 3.3). Although the amount of bluefin quota in the Reserve category will be reduced under Amendment 13 as a result of the removal of the Purse Seine category, and the associated flexibility to transfer quota from the Reserve to the General category will be reduced, the General category will be allocated a larger portion of the U.S. bluefin quota. NMFS will continue to monitor the General category carefully and make inseason adjustments per its regulations to facilitate a well-managed fishery that, among other things, provides equitable fishing opportunities.

`H' Alternatives: Modifications to the Angling Category Trophy Fishery

Comment 28

NMFS received comments in support of the proposed measure to modify the current Angling category Trophy North subquota area by dividing the area into two zones (north and south of 42° N lat., off Chatham, MA) and modify the allocation percentages to provide opportunities for anglers fishing off New

England and make the trophy fishery more equitable. One commenter noted that the Angling category boosts local economies through angler expenditures on boat fuel and fishing tackle. Two commenters were concerned that in order to create the new trophy suballocation for the Gulf of Maine trophy area, NMFS would increase the Trophy bluefin allocation through an equivalent reduction of the subquota for large school/small medium bluefin subquota (bluefin that measure from 47 inches to less than 73 inches curved fork length (CFL)). They noted that the large school/small medium size class is an important component of the fishery. There were suggestions that NMFS increase the quota allocation to the Angling category and to the trophy subquotas, particularly for New England and for the New York Bight.

Response

NMFS agrees that dividing the current Trophy North subquota area into two zones and providing allocation to the new area (Gulf of Maine) will make the fishery more equitable by providing a modest amount of trophy quota to anglers north of 42° N lat. NMFS agrees that the recreational HMS fishery is an important contributor to the economy. Through this final rule NMFS will increase the portion of the Angling category quota allocated for trophy bluefin from 2.3 percent to 3.1 percent to provide quota to the new area. The source of that additional quota will be from the large school/small medium size range. Because the amount of school bluefin (27″−<47″) that can be caught each year is limited in the codified regulations, and in compliance with ICCAT's binding western Atlantic bluefin recommendation, to no more than 10 percent of the annual U.S. bluefin quota, any increase to the trophy subquota (73″ or greater) will need to be balanced with an equivalent reduction of the subquota for large school/small medium bluefin subquota (47″−<73″). NMFS disagrees that the reduction in the relative amount of large school/small medium fish allocated will be problematic. There will be only a minor decrease in the amount of allocation for large school/small medium bluefin; the subquota will represent approximately 52 percent of the Angling category quota. In recent years, Angling category landings overall have averaged less than the Angling category quota, and in many years, landings of large school/small medium bluefin have averaged less than the available quota for those size classes. NMFS disagrees that more quota should be allocated to the Angling category. In determining the scope of alternatives analyzed in Amendment 13, NMFS decided not to consider making fundamental changes to the structure of the bluefin quota category allocations, as explained in response to Comment 25. The change to the structure of the Angling category trophy fishery is a relatively minor aspect of the recreational bluefin fishery. The primary intent of the recreational trophy allocation is to reduce discards of trophy bluefin, and not to support a directed fishery.

Comment 29

NMFS received several suggestions regarding the current geographic areas associated with the trophy fishery. There were suggestions to move the current Trophy North/South line from its current location in southern New Jersey (off Great Egg Inlet) southward to Ocean City, Maryland, to create more opportunity for Maryland anglers, and to consider alternating the location of the line every other year. The Maryland Department of Natural Resources elaborated that they did not support any of the `H' alternatives because they would continue to be inequitable to those fishing out of Ocean City, Maryland. They stated that Maryland is within the Trophy South area, but does not have access to the fish because the quota is caught (in areas to the south of Maryland) before the fish are accessible to Maryland. For this reason they felt the alternatives were not fair to anglers off of Maryland, Delaware, or southern New Jersey and, therefore, suggested moving the southern boundary of the Trophy North area southward to include Ocean City, Maryland. Another commenter suggested creation of another trophy geographic area and associated trophy subquota within the current Trophy South area, because the subquota is often filled off North Carolina and Virginia Beach, Virginia.

Response

NMFS disagrees that Amendment 13 should modify the southern boundary of the Trophy North area or create a new southern trophy area. In the past, the southern boundary of the Trophy North area was further to the south, and fishermen requested that NMFS move the line to the north. Specifically, NMFS implemented the boundary change from off Ocean City, Maryland to off Great Egg Inlet, New Jersey in a 2001 final rule, based on public comments, to reduce confusion regarding fishing areas and catch limits and to reduce the likelihood of vessels being excluded from participating in the trophy bluefin fishery (66 FR 42801, August 15, 2001). Given the highly dynamic nature of the fishery, there may be times during which a particular geographic area has less opportunity for trophy bluefin landings than during other times. Permit holders may fish for bluefin in any geographic location they choose, as long as they are fishing in an area that is open.

I Alternatives—Modifications to Other Handgear Fishery Regulations

Comment 30:

Two commenters supported the alternative that would allow the use of harpoon gear by vessels issued an HMS Charter/Headboat permit, in order to provide flexibility and fishing opportunity. To address safety concerns, commenters suggested allowing only the vessel captain and crew—and not passengers—to use harpoon gear. Alternatively, the use of harpoon gear could be allowed on non-for-hire commercial trips only. Several commenters did not support prohibiting vessels with General category permits from using harpoon gear because landings in that permit category by harpoon gear were relatively low and therefore not a concern. Those commenters further noted that a prohibition on harpoon gear use by vessels in the General category would force vessels to obtain Harpoon category permits instead.

Response:

NMFS disagrees that vessels fishing for bluefin issued an HMS Charter/Headboat permit should be allowed to fish with harpoon gear. In the 2008 rule on this subject, there were public concerns about safety and the liability associated with allowing the use of harpoon gear on “for-hire-trips” (trips on which there are paying passengers aboard a vessel issued a Charter/Headboat permit, fishing under recreational rules). NMFS does not believe that safety and liability concerns would be adequately addressed by limiting harpoon use to only the vessel captain and crew because such a restriction would be difficult to enforce, and charter clients are likely to include a variety of levels of boating and fishing experience. NMFS also does not prefer allowing harpoon use by Charter/Headboat permit holders on non-for-hire commercial trips, as there is adequate opportunity for vessels fishing commercially to utilize harpoon gear under the General or Harpoon category permits. NMFS agrees that prohibiting General category permit holders from using harpoon gear is not necessary. Currently, both the General and Harpoon categories are authorized to

use the gear, and bluefin landings by vessels using harpoon gear fishing in the General category comprise a relatively low percentage of the General category landings.

Comment 31:

Several commenters did not support the proposed measure to implement a retention limit for the Harpoon category. These commenters stated that it is important for Harpoon category participants to maintain the ability to land as many fish per day as they can and that a retention limit would hamper their ability to take advantage of the limited opportunities to catch bluefin during the window of time when bluefin are available to harpoon gear on the water's surface. The specific reasons the commenters did not support a retention limit varied and included: reliance by some participants on the fishery to make a living, the importance of being able to capitalize on good weather days to their overall business success, climate change reducing good weather fishing opportunities, and the need for the flexibility to catch many bluefin on a particular trip because on some days they will catch no fish. Some commenters stated that Harpoon category fishermen have shown the willingness and ability to voluntarily control catch based on market demand. One commenter said that the analysis should not rely on data from 2019 due to atypical high landings that year.

Response:

NMFS agrees that some vessel owners rely on revenue from the Harpoon category fishery as part of their annual income, and that the opportunities to target bluefin using harpoon gear are limited by fish availability and weather. However, NMFS disagrees that implementation of a retention limit on the total number of bluefin retained by vessels fishing in the Harpoon category will be problematic. A default trip limit set at 10 fish will likely constrain only a small percentage of trips, with the potential economic benefits of a longer season and/or associated extension of fishing opportunities to a greater number of Harpoon category participants. Furthermore, this measure will allow NMFS the ability to adjust the retention limit via inseason action to avoid closing the fishery. NMFS closed the 2019 Harpoon category fishery effective August 8, 2019, when the adjusted quota of 91 mt was met; Harpoon landings for 2019 totaled approximately 102 mt (84 FR 39208, August 9, 2019). The determination that the retention limit is warranted does not rely solely on the presumption of high total landings (such as during 2019). The retention limit will be a useful management tool due to the dynamic and diverse nature of the fishery. A retention limit of 10 bluefin may prevent a few vessels landing large numbers of bluefin from having a disproportionate impact on the rate of harvest of the limited quota, and reduce potential market issues associated with high landings during a short period of time.

Comment 32:

Several commenters did not support the preferred No Action alternative that will maintain the current Harpoon category start date of June 1, but instead supported the alternative that would move the start date earlier to May 1. They explained that bluefin, a cold water species, are no longer available at the surface to the harpoon fishery once surface waters warm during the summer. They state that in the past, bluefin remained at the surface in September and October, but recently are no longer on the surface by mid-August, and that given warmer surface temperatures associated with climate change, the harpoon category season needs an earlier start date. Commenters indicated that bluefin migrate through southern New England in May and that a May 1 start date would allow opportunities for Harpoon category participants while minimizing potential gear conflicts or market competition with the General category. Some commenters supported the preferred No Action alternative to maintain the current June 1 Harpoon category fishery start date. They were concerned that an earlier opening date would result in earlier closure. They also noted concerns about equitable access to the fishery among different geographic regions (

i.e.,

that an earlier start date would benefit participants in Southern New England to the detriment of northern participants, especially the traditional participants in Maine). One commenter also expressed concern about potential baiting activity behind fishing vessels using bottom trawls or dredges and the effect on early season surface accumulations of bluefin.

Response:

NMFS disagrees that the current start of the Harpoon fishery should be moved from June 1 to May 1. Maintaining the current start date of June 1 for the Harpoon category, which coincides with the start date for the General category fishery, will facilitate enforcement and business planning, and provide greater certainty to participants regarding fishing opportunities and market conditions. Given the dynamic nature, geographic range, and diverse participants of the commercial handgear fishery for bluefin, maintaining the June 1 start date is likely to result in equitable fishing opportunities.

Comment 33:

Two commenters supported extending the ability for permit holders with an Atlantic Tunas permit in the General, Harpoon, or Trap category, or Atlantic HMS permit in the Angling or Charter/Headboat category, to change permit categories from within 45 days of purchase to the end of the fishing year as long as the vessel has not landed a bluefin.

Response:

NMFS agrees that allowing applicants to change permit types as long as they had not landed a bluefin will give vessel owners more opportunity to change their permit type, and provide flexibility to account for mistakes made by permit applicants when choosing the permit type. Because vessels are not allowed to land bluefin in two quota categories within a fishing year, the restriction will still preclude vessels from gaining any sort of an advantage over vessels fishing under a single permit type within a fishing year.

General Comments on the IBQ Program and Pelagic Longline Fishery

Comment 34:

NMFS received general comments regarding the current status of the pelagic longline fishery, as it relates to Amendment 13. The common themes of such comments were that the fishery is struggling and that it is very important to: maintain the viability of the fishery; fully utilize the U.S. swordfish quota; maintain domestic food production to decrease dependence on imports for national security; and have the United States continue to serve as a strong example internationally of a well-managed fishery. Commenters stated specifically that NMFS needs to preserve the viability of the pelagic longline fishery by preserving its flexibility and allocating an adequate amount of IBQ allocation in order to account for sets with high bluefin catch and maintain opportunity to fish for swordfish and other target species. Commenters noted diverse challenges facing the industry including competition from imports, closed areas, declining participation, challenges for new entrants, the high cost of fishing gear, the cost of leasing IBQ allocation, a deterioration of the bluefin market, and difficulty in finding experienced,

quality crew. One commenter stated that the proposed measures do not minimize the disadvantage to U.S. fishermen in relation to foreign competitors and do not minimize adverse social and economic impacts to the pelagic longline industry.

Response:

NMFS agrees that the pelagic longline fishery faces numerous and serious challenges. The elements of Amendment 13 pertaining to the pelagic longline fishery focus on modifications to the IBQ Program to address some of the challenges. Amendment 13 will implement changes to the IBQ Program that provide additional flexibility for the majority of pelagic longline vessels, including dynamic determination of IBQ shares, a more flexible means of regional designation of IBQ shares, and a low-share threshold in the Gulf of Mexico; an increase in the Longline category quota to 15.9 percent of the U.S. bluefin quota; and relaxation of the requirement for mailing EM hard drives. Amendment 13 will also authorize the future development of a bluefin quota set-aside, if needed, for the pelagic longline fishery. The selection of the specific measures being implemented from among the alternatives analyzed in the FEIS minimize the adverse social and economic impacts to the pelagic longline industry. NMFS is open to future consideration of regulatory changes that would address other issues in the fishery, such as obtaining data from spatial management areas, and considering modifications to such areas to optimize the balance of protection of bycatch species and access to target species.

Comment 35:

NMFS received a comment from an environmental group that the reduction in bluefin bycatch under the IBQ Program has been a compelling success story, and that, since its implementation, the pelagic longline fishery has not exceeded its bluefin quota. One commenter stated that Amendment 13 would increase sustainability and transparency, and one commenter expressed appreciation for NMFS' efforts to improve the pelagic longline fishery regulations.

Response:

NMFS agrees that the IBQ Program has successfully reduced the incidental catch of bluefin substantially compared to previous levels, and agrees that Amendment 13 will further improve the IBQ Program.

General Comments on Amendment 13

Comment 36:

NMFS received comments that the comment period was open during a busy fishing season and requesting that the comment period be extended a second time to March 2022, and the date of implementation postponed, so that the commenters would have time to read the Amendment 13 documents. They also stated that such extension of the comment period would provide NMFS time to look into the issue of fishermen baiting and harpooning bluefin behind fishing vessels using bottom trawls or dredges. NMFS received comments that the Agency did not address suggestions from some pelagic longline representatives regarding the Amendment 13 scoping document. One commenter expressed concern that the impacts of these management measures would force the species into extinction, and that the quota for bluefin should be zero. The EPA commented that they support efforts to reduce bluefin dead discards and that preventing wasteful bycatch will become increasingly important as various impacts of climate change on the ocean intensify impacts on marine resources.

Response:

The original comment period on the proposed rule was from May 21, 2021 through July 20, 2021, and then extended through September 20, 2021 (86 FR 38262, July 20, 2021). The four-month duration of the comment period provided reasonable opportunity for the public to comment on the proposed management measures. Amendment 13 did not analyze alternatives to address concerns about new fishing strategies in the harpoon fishery, but could consider this topic for future discussions at the HMS Advisory Panel. NMFS did not analyze all of the suggestions for management measures that it received during the scoping phase of the development of Amendment 13, but did consider input from scoping and analyzed a reasonable range of alternatives. Measures implemented by this final rule do not alter, and are consistent with, the ICCAT-adopted western Atlantic bluefin quota and U.S. portion of the quota and the best scientific information available. Currently, the stock is not experiencing overfishing. NMFS agrees that bycatch reduction will continue to be important in the context of future climate change impacts on marine resources.

Management Options Considered but Not Further Analyzed

Comment 37:

NMFS received comments on management options that were considered but not analyzed. There were multiple comments in support of annual accountability for quota debt under the IBQ Program. Commenters stated that the flexibility of annual accountability is needed to facilitate leasing of IBQ allocation throughout the year, which is particularly important if the Longline category does not receive any bluefin quota from the Purse Seine category quota reallocation. Commenters also stated that the current quarterly accountability is not needed because there are adequate deterrents with the IBQ Program to prevent targeting bluefin.

Response:

NMFS disagrees that annual accountability should have been an alternative that was analyzed or preferred. Vessels have successfully accounted for bluefin catch under the quarterly accountability rules. Although annual accountability would provide substantial flexibility for vessel owners, this method of accountability may result in higher prices for IBQ allocation leases, a compressed market for IBQ allocation at the end of the year, and reduced incentive to avoid bluefin. The timing of quarterly accountability is likely to maintain incentives for vessels to utilize fishing strategies that minimize the likelihood of interactions with bluefin, and reduce the ability for vessels to accrue large amounts of quota debt. For example, a vessel that is not able to avoid bluefin catch and accrues quota debt would be constrained on a quarterly basis. A vessel with quota debt at the beginning of the quarter would not be able to lawfully fish with pelagic longline gear until it leased sufficient IBQ allocation to `pay' for the quota debt. This requirement provides strong incentives to avoid catch of bluefin and could prevent the vessel from pelagic longline fishing if the vessel owner is not able to find affordable IBQ allocation to lease from another permit holder. In contrast, under annual accountability, a vessel would be able to accrue quota debt throughout the year, and therefore incentives to use a fishing strategy that avoids bluefin are weaker. Quarterly accountability provides a more appropriate balance between accountability and flexibility than annual accountability would. While leasing from the Purse Seine category will no longer be available, as explained in response to comment 22, Amendment

13 addresses leasing concerns by reallocating a portion of the Purse Seine category quota to the Longline category.

Changes From the Proposed Rule (86 FR 27686; May 21, 2021)

This section explains the changes in the regulatory text from the proposed rule to the final rule. Changes were made in response to public comment, refined analyses, or clarification of text for the final rule. Therefore, where relevant, the description of measures implemented by this final rule include any changes from the measures in the proposed rule and Draft Amendment 13/DEIS. Where NMFS modified the proposed measures or adopted a different alternative that was not proposed, such alternatives fell within the scope of, or are a logical outgrowth of, the alternatives in the proposed rule and DEIS. The changes from the proposed rule include changes to the method of determining quota shares in the IBQ Program; IBQ regional designation rules; Purse Seine category reallocations; Harpoon category retention limits; and changes to the electronic monitoring program impacts. The changes from the proposed rule text in the final rule are described below.

1. Section 635.9, paragraphs (c) and (e). Modification to the standardized reference grid and VMP.

NMFS received a number of comments on Draft Amendment 13 and the proposed rule regarding the measuring grid, including accommodating individual vessel configurations and maintaining safety.

See

comment 17 under Responses to Comments. After reviewing these comments, NMFS determined that it is important to provide time for a measuring grid to be adapted for each vessel and for each vessel to install and begin using that grid. The final rule thus provides that, over the next year, NMFS or a NMFS-approved contractor will work with vessel owners/operators to specify a measuring grid that, to the extent practicable, accommodates the unique layout and operations of each fishing vessel. A description of the measuring grid will be included in each vessel's VMP, and a vessel owner will have six months after the VMP is approved to install the grid specified in the VMP.

See

response to comment 17 for further explanation. Additionally, because appropriated funds are not available, the final rule requires vessel owners to cover the cost of grid installation, which is a change from the proposed rule.

2. Section 635.15, paragraphs (b), (c), and (e), § 635.28, paragraph (a), and § 635.34, paragraph (b). Modification to the IBQ share eligibility, distribution, and allocation methods.

The proposed rule determined IBQ shares based upon landings of designated species (swordfish, and yellowfin, bigeye tuna, albacore, and skipjack tunas) as the measure of fishing effort and four percentile tiers (Sub-Alternative A2c). Public comments noted concerns regarding the species included as designated species (

see

comment 2); potential factors that may affect a vessel's fishing strategy, which species are fished, and what is landed (

see

comment 3); disproportionate impacts the tiers may have on IBQ shares (

see

comment 4); and different views on the best methods for determining IBQ shares (

see

comment 3). After considering public comments, NMFS decided to change the final rule to determine IBQ shares annually based on sets as the measure of fishing effort and eliminate tiers, instead providing each eligible vessel with a “customized” share. NMFS will only count one set (a single deployment and retrieval of pelagic longline gear) per day towards the determination of IBQ shares.

See

Pelagic Longline Fishery:

Annual IBQ Share Determination

above for further details. This provides a standardized, uniform method for determining IBQ shares for a geographically diverse fleet with a range of vessel sizes and fishing strategies. In addition, it addresses a concern raised about short sets being deployed for the purpose of influencing IBQ share determinations, and is simpler for NMFS to implement.

See

responses to comments 2-4 for further explanation.

Pursuant to existing authority at § 635.27(a), NMFS may increase or decrease the baseline Longline quota through inseason or annual adjustments. When doing so, NMFS would apply each IBQ shareholder's share percentage to the amount of quota increase (subject to the applicable GOM cap) or decrease, and will notify shareholders of any resulting changes in their IBQ allocations.

After considering a concern raised about potential, future declines in effort in the Gulf of Mexico resulting in a very low percentage of GOM-designated shares in some years and severely limiting operation of the fishery, NMFS conducted further analyses and decided to add a low GOM designated share threshold (5 percent or less) to the final rule.

See

comment 8 and response under Response to Comments for further explanation. If the threshold is triggered, either GOM or ATL shares and resultant allocations may be used to account for BFT caught in the Gulf of Mexico and to satisfy the minimum IBQ requirement. Other existing regional accounting rules would continue to apply, and there would be a cap on BFT incidental catch in the Gulf of Mexico (weight of bluefin associated with 35-percent or lower cap on GOM designated shares).

See

Pelagic Longline Fishery:

Regional Designations for IBQ Shares and Resultant Allocations

above for further details.

Lastly, based on public comment about new entrants (

see

comment 6), NMFS adds to the framework provisions of the 2006 Consolidated HMS FMP and associated regulations authority for a

de minimis

amount of bluefin quota from the Longline category quota prior to calculating the annual IBQ allocations. This lays the groundwork for potential, future rulemaking, if needed. No set aside is being established at this time.

3. Section 635.19, paragraph (b). Correction and clarifications to Atlantic tunas primary gears.

The proposed rule incorrectly listed bandit gear and green-stick gear as primary gears for the Angling category for BAYS. The final rule deletes those gear types. In addition, consistent with an existing prohibition that refers to fishing for, catching, retaining, or possessing bluefin tuna, the final rule adds “catching” or “catches” in several places where the other terms appear in paragraph (b).

4. Section 635.23, paragraph (d). Modification regarding Atlantic Tunas Harpoon category permit holders retention limits for bluefin.

The proposed rule maintains the current Harpoon category retention limit (range) of large medium bluefin, but sets a combined daily retention limit on the total number of large medium and giant bluefin at 10 fish. These aspects are unchanged in the final rule. The final rule adds inseason authority to adjust the combined daily retention limit between 5 to 10 fish, in order to avoid closing the fishery.

See

Harpoon category section and comment 31 and response, above, for further details and explanation.

5. Section 635.27, paragraph (a) and subparagraph (a)(3). Modification to the commercial and recreational quotas for bluefin.

The proposed rule would have reallocated Purse Seine category quota proportionally to the directed bluefin quota categories (General, Angling, Harpoon, and Reserve categories) (preferred Alternative F4). The final rule adds Longline and Trap, and reallocates the Purse Seine category quota to all categories by revising each category's percentage proportionally. NMFS made this change in light of public comments expressing concern about impacts on

the IBQ leasing market as a result of discontinuation of the Purse Seine category, further analyses on the source of pelagic longline IBQ leases, and the agency's conclusion that the Longline category should be included in the reallocation to increase the likelihood of a successful leasing market.

See

Purse Seine section and comment 22 and response above for further details.

The final rule also amends § 635.27(a)(3) to add: “For purposes of § 635.28(a)(1), regional IBQ allocations under § 635.15(c)(3) and the BFT catch cap for fishing in the Gulf of Mexico (§ 635.15(c)(3)(iii)) are considered quotas.” Section 635.28(a)(1) provides for closure authority. Adding the BFT catch cap here ensures that, if the low GOM designated shares threshold is triggered, NMFS can take action if the catch cap is reached or projected to be reached. Section 635.28(a)(1) already authorizes closure action for regional IBQ allocations; deleting reference there to regional IBQ allocations and adding the reference to § 635.27(a)(3) merely simplifies the regulatory text.

6. Section 635.28, paragraph (a). Modification to fishery closures.

Consistent with the edit to § 635.27(a)(3) discussed above, the final rule deletes reference to regional IBQ allocations here.

7. Section 635.34, paragraph (b). Adjustment of management measures.

As explained above, NMFS has added to the framework provisions of the 2006 Consolidated HMS FMP authority for a

de minimis

set aside of bluefin quota from the Longline category. The final rule makes a parallel edit to § 635.34.

8. Section 635.71 and other sections throughout the rule. Technical adjustments.

In addition to the primary changes described above, additional technical changes were made throughout the rule to improve upon clarity (

e.g.,

change in punctuation, reordering phrases or sentences, adding additional information or cross-references), correct capitalizations, or correct cross-references for paragraphs that are changing. In section 635.71, the final rule adds a prohibition corresponding to an existing requirement at § 635.23(f)(2), which requires vessels with pelagic longline gear on board to retain all dead large medium or giant bluefin. The final rule clarifies that both apply to retaining “and land[ing]” bluefin, and instead of specifying a size for the fish, uses “large medium or giant” BFT, which are defined terms under § 635.2. Other changes in § 635.71 correct cross-references based on the changes in this final rule. A number of other technical changes can be found throughout the rule and do not affect the intent of the final rule. Rather, these changes are editorial in nature or clarifications to existing regulatory text.

Classification

The NMFS Assistant Administrator has determined that this final rule is consistent with the 2006 Consolidated HMS FMP and its amendments, the Magnuson-Stevens Act, ATCA, and other applicable law.

As described above, NMFS prepared an FEIS for Amendment 13. The Notice of Availability for the FEIS was published in the

Federal Register

on May 13, 2022 (87 FR 29310). In approving Amendment 13, NMFS issued a Record of Decision (ROD) identifying the selected alternatives. A copy of the ROD and the FEIS, which includes detailed analyses of a reasonable range of alternatives to meet rulemaking objectives, is available from NMFS (see

ADDRESSES

).

This final rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS requested reinitiation of consultation under the Endangered Species Act (ESA) in July 2022, on the effects of the Atlantic HMS pelagic longline fishery due to new information on mortality of giant manta ray that exceeded the mortality anticipated in the May 2020 Biological Opinion on that fishery. As explained in the Background section, in accordance with section 7(d) of the ESA, NMFS has determined that, during consultation, pelagic longline fishery activity consistent with the 2020 Biological Opinion will not result in an irretrievable or irreversible commitment of resources which would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures and that continued compliance with the Reasonable and Prudent Measures and Terms and Conditions in that biological opinion will avoid jeopardy to ESA-listed species, consistent with section 7(a)(2) of the ESA.

A final regulatory flexibility analysis (FRFA) was prepared. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, NMFS responses to those comments, and a summary of the analyses completed to support the action. A summary of the FRFA, which must address each of the requirements in 5 U.S.C. 604(a)(1)-(5), is below. The entire FRFA is included in the FEIS and is available from NMFS (see

ADDRESSES

).

Section 604(a)(1) of the RFA requires Agencies to state the objective of, and legal basis for, the action. The objectives of, and legal basis for, this final rule are set forth in the Background section above.

Sections 604(a)(2) and (3) of the RFA require that a FRFA include a summary of significant issues raised by public comment or by the Chief Counsel for Advocacy of the Small Business Administration in response to the IRFA and proposed rule, a summary of the assessment of the Agency of such issues, and a statement of any changes made in the rule as a result of such comments. NMFS did not receive any comments on the proposed rule from the Chief Counsel for Advocacy of the Small Business Administration. Additionally, NMFS did not receive any public comments specifically on the IRFA, however the Agency did receive some comments regarding the anticipated or perceived economic impact of the rule. The comments and responses included below are those that pertain specifically to such economic impacts. A summary of all of the comments received and the Agency's responses are provided above.

Comment 2 noted that dolphin fish provide up to 30 percent of the revenue for a pelagic longline vessel, thus it should be included as a designated species under the proposed, dynamic allocations of IBQ shares. While NMFS agrees that dolphin fish is an economically important component of the pelagic longline fishery, based on other public comments and additional analyses, NMFS decided to use pelagic longline sets, not designated species, for the allocations.

Comment 4 noted that the use of tiers in the proposed, dynamic allocation alternatives has the effect of disadvantaging some vessels, as it would assign IBQ shares based on four distinct percentages. Some vessels could receive less IBQ shares and may have to spend more money to lease additional shares from other vessels, or lose potential income from additional shares that could have leased to other vessels. NMFS agrees that there were negative implications for individual vessels associated with the use of tiers. After consideration of public comments, NMFS determined that the beneficial aspects of the use of tiers did not outweigh these negative aspects, and, therefore NMFS will base dynamic allocation of IBQ shares on customized share percentages for each vessel, not tiers.

Comment 8 noted that the combined effect of the proposed IBQ measures that focus on the Gulf of Mexico—that is the Gulf of Mexico designation of IBQ and

the associated rules—would not function when there is very low fishing effort in the Gulf of Mexico. The specific concern stated was that vessels may have insufficient IBQ allocations to satisfy the minimum IBQ requirements as well as account for any bluefin catch, and that vessels would not lease IBQ allocation to other vessels. A severely constrained or non-functioning IBQ program in the Gulf of Mexico would directly impact the ability for vessels to fish and earn income. NMFS agrees that under conditions of very low fishing effort in the Gulf of Mexico, the IBQ Program may not function as designed. Therefore, NMFS has modified the final rule to include a low share threshold that enables temporary relaxation of certain GOM-specific accounting rules, while maintaining an overall cap on catch in the Gulf.

Comment 6 noted that a bluefin quota `set-aside' should be created to provide a source of IBQ shares and allocations for vessels that are new entrants to the fishery. In response, NMFS has added to the 2006 Consolidated HMS FMP framework provisions and related regulations the authority to establish such a set aside, if needed, through a future rulemaking.

Comment 22 noted that that the Longline category should be included in the reallocation of Purse Seine quota, because pelagic longline vessels rely on Purse Seine category quota for leasing under the IBQ Program and would be impacted by decreased availability of IBQ allocation to lease with elimination of the Purse Seine category. A commenter stated that increased IBQ allocations to active pelagic longline vessels under the proposed IBQ share alternative will not make up for the loss of quota currently available from the Purse Seine category. NMFS agrees with this statement, having confirmed it through additional analyses for the Final Amendment 13/FEIS. Based on this and other considerations, the final rule includes the Longline and Trap categories in the reallocation of Purse Seine category quota.

Comment 27 noted public concerns about some of the General category subquota alternatives that were not preferred, varied views on how to modify the subquotas. For example, one commenter noted that modification of the current subquota periods into 12 equal subquota periods (Alternative G2a), would adversely affect the participation and finances of vessels, depending upon the location of the vessels. Another commenter did not support extending the January through March subquota period until the end of April (Alternative G2b) because such a change would result in negative economic consequences later in the year. NMFS acknowledges that there are potential trade-offs associated with each of the alternatives analyzed, but notes that the bluefin fishery is highly dynamic, fishing permits are open access, and price fluctuations do not show a strong pattern during the year. After considering public comment and information from recent years, NMFS believes that existing General category subquota periods continue to be appropriate, given fish availability, fishing effort, and bluefin landings during the different subquota time periods, and thus provide fair and equitable fishing opportunities. Thus, the final rule makes no changes to those subquota periods.

Comment 31 noted that the implementation of the proposed retention limit of 10 bluefin for the Harpoon category, which applies to large medium and giant fish (combined), would result in lost fishing opportunity and unharvested bluefin quota, and that therefore NMFS should not implement the measure. NMFS disagrees that the harpoon retention limit would result in lost fishing opportunity. Based on past data, the retention limit would affect relatively few vessels. In 2019 only 2 percent of Harpoon category trips landed 10 or more bluefin. NMFS has added to the final rule the ability to adjust the limit inseason to between 5 and 10 fish, in order to provide a means with which to influence rates of catch, lengthen the fishing season, and optimize fishing opportunities and resultant revenues.

Section 604(a)(4) of the RFA requires Agencies to provide an estimate of the number of small entities to which the rule would apply. For RFA compliance purposes, NMFS established a small business size standard of $11 million in annual gross receipts for all businesses in the commercial fishing industry (NAICS code 11411). SBA has established size standards for all other major industry sectors in the United States, including the scenic and sightseeing transportation (water) sector (NAICS code 487210, for-hire), which includes charter/party boat entities. SBA has defined a small charter/party boat entity as one with average annual receipts (revenue) of less than $8.0 million. NMFS considers all HMS permit holders to be small entities because average annual receipts are less than $11 million for commercial fishing or $8 million for charter/party boat entities. Regarding those entities that would be directly affected by the measures implemented by this final rule, the average annual revenue per active pelagic longline vessel in 2017 is estimated to be $307,422 based on 88 active vessels, which is well below the NMFS small business size standard for commercial fishing businesses of $11 million. In 2019, there were 280 Atlantic Tunas Longline category permits, and 67 vessels were actively fishing based on logbook records. In examining the trends of overall fleet-wide revenues in The Three-Year Review, NMFS found that the average annual revenue per vessel has been relatively stable. Thus, while Final Amendment 13 does not update the revenue estimate for 2019, based on information that NMFS has on the fishery, revenue per vessel in 2019 would have been well below $11 million.

Other non-pelagic longline HMS commercial fishing vessels typically earn less revenue than pelagic longline vessels, and each HMS Charter/Headboat typically earns much less than $8 million annually. Thus, all of these vessels would also be considered small entities. The other (non-Atlantic Tunas Longline) commercial measures implemented by this final rule apply to 2,721 General category permit holders, 3,769 Charter/Headboat permit holders, 20 Harpoon category permit holders, and 34 seafood dealers that purchase bluefin (based on 2019 data).

NMFS has determined that the final rule measures will not likely directly affect any small organizations or small government jurisdictions defined under the RFA, nor will there be disproportionate economic impacts between large and small entities.

Section 604(a)(5) of the RFA requires Agencies to describe any new reporting, record-keeping and other compliance requirements. This final rule contains revised or new collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA).

See

FRFA in Final Amendment 13 at section 7.4 for further details. Public reporting burden for these collections of information, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information, are estimated below (see Paperwork Reduction Act).

Under section 604(a)(6) of the RFA, Agencies must describe the steps to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the measures adopted in the

final rule and why the agency rejected each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities. These elements are summarized below. The full text of the Final Regulatory Flexibility analysis is contained in the Final Amendment 13/FEIS, Chapter 7.

Modifications to IBQ Share Eligibility, Distribution and Allocation Methods

Alternative A1, the No Action Alternative, would make no changes to the current method of determining IBQ share eligibility, and the distribution of IBQ allocations, including regional designations. Although this alternative would not result in any changes in the economic impacts to small entities associated with the IBQ Program under Amendment 7, the costs and inefficiencies associated with the current method of share determination would continue. Specifically, there would continue to be the inefficiency associated with annual IBQ allocations that are neither used to account for bluefin catch, nor leased to other shareholders. Alternative A1 would not meet objective 4 of this Amendment. For these reasons, this alternative was rejected.

Alternative A2 is composed of four sub-alternatives with annual, dynamic determination methods for allocating IBQ shares based on different criteria for defining the pool of recently active vessels. In making annual determinations, NMFS would use a recent 36-month period of relevant, best available data. Public comments supported use of a measure of fishing effort, rather than equal shares, because the pelagic longline fleet is very diverse in terms of fishing effort. The current IBQ Program has 136 shareholders. Under the sub-alternatives, there would be 91 defined shareholders based on the total number of vessels that submitted VMS bluefin reports from 2017 through 2019. The sub-alternatives would reduce dissatisfaction among active fishery participants that results from the current IBQ Program, under which a relatively large number of permit holders who are not active receive annual IBQ allocations. While the FRFA estimates numbers of vessels that would have larger or smaller IBQ share percentages, any changes in IBQ shares are short term, as IBQ shares will be determined annually using the most recent three years of relevant, available data. Economic costs associated with reduced allocations would only be realized if shareholders need to lease IBQ allocation to account for bluefin catch in excess of their allocations. Shareholders may have a slightly reduced ability for business planning due to the potential annual variability in share percentages. However, they would be aware that a substantive change in their amount of fishing effort may result in slight changes in the share percentage in the following year. Any adverse impacts on a shareholder could be partially mitigated through leasing IBQ allocation, recognizing that there are costs associated with leasing. The FRFA anticipates that the leasing market is likely to continue to function well, with a price similar to or lower than recent prices, because under the sub-alternatives, most vessel allocations would increase.

Sub-Alternative A2a would define IBQ shareholders annually based on the relative number of hooks fished as the measure of fishing effort. The FEIS estimates that sixty-five vessels would have larger share percentages and twenty-six would have smaller sha

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