Atlantic Highly Migratory Species; 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan; Amendment 7
Federal Register, Volume 79 Issue 231 (Tuesday, December 2, 2014)
Federal Register Volume 79, Number 231 (Tuesday, December 2, 2014)
Rules and Regulations
Pages 71509-71608
From the Federal Register Online via the Government Printing Office www.gpo.gov
FR Doc No: 2014-28064
Page 71509
Vol. 79
Tuesday,
No. 231
December 2, 2014
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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Atlantic Highly Migratory Species; 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan; Amendment 7; Final Rule
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
Docket No. 120328229-4949-02
RIN 0648-BC09
Atlantic Highly Migratory Species; 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan; Amendment 7
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final rule implements Amendment 7 to the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) to ensure sustainable management of bluefin tuna consistent with the 2006 HMS FMP and address ongoing management challenges in the Atlantic bluefin tuna fisheries. This final rule also implements minor regulatory changes related to the management of Atlantic HMS. Amendment 7 management measures were developed by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act (ATCA). This final rule: Allocates U.S. bluefin tuna quota among domestic fishing categories; implements measures applicable to the pelagic longline fishery, including Individual Bluefin Quotas (IBQs), two new Gear Restricted Areas, closure of the pelagic longline fishery when annual bluefin tuna quota is reached, elimination of target catch requirements associated with retention of incidental bluefin tuna in the pelagic longline fishery, mandatory retention of legal-sized bluefin tuna caught as bycatch, expanded monitoring requirements, including electronic monitoring via cameras and bluefin tuna catch reporting via Vessel Monitoring System (VMS), and transiting provisions for pelagic and bottom longline vessels; requires VMS use and reporting by the Purse Seine category; changes the start date of the Purse Seine category from July 15 to a date within a range of June 1 to August 15, to be established by an annual action; requires use of the Automated Catch Reporting System by the General and Harpoon categories; provides additional flexibility for inseason adjustment of the General category quota and Harpoon category retention limits; and changes the allocation of the Angling category Trophy South subquota for the Gulf of Mexico. Finally, this rule implements several measures not directly related to bluefin tuna management, including a U.S. North Atlantic albacore tuna quota; modified rules regarding permit category changes; and minor changes in the HMS regulations for administrative or clarification purposes.
DATES: Effective January 1, 2015, except for Sec. 635.9(b)(2)(ii), (e)(1), which are effective June 1, 2015; and Sec. 635.15(b)(3), (b)(4)(ii), and (b)(5)(i), which are effective January 1, 2016.
ADDRESSES: Copies of Amendment 7 to the 2006 Consolidated HMS FMP, including the Final Environmental Impact Statement (FEIS), and other relevant documents are available from the HMS Management Division Web site at http://www.nmfs.noaa.gov/sfa/hms/.
FOR FURTHER INFORMATION CONTACT: Thomas Warren or Brad McHale at 978-
281-9260.
SUPPLEMENTARY INFORMATION: The U.S. Atlantic tuna fisheries are managed under the 2006 Consolidated HMS FMP and regulations at 50 CFR part 635, pursuant to the authority of the Magnuson-Stevens Act and ATCA. Under ATCA, the Secretary shall promulgate such regulations as may be necessary and appropriate to carry out International Commission for the Conservation of Atlantic Tunas (ICCAT) recommendations. The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary to the Assistant Administrator for Fisheries, NOAA (AA). On October 2, 2006, NMFS published in the Federal Register (71 FR 58058) final regulations, effective November 1, 2006, implementing the 2006 Consolidated HMS FMP, which details the management measures for Atlantic HMS fisheries, including the incidental and directed Atlantic bluefin tuna fisheries.
Background
A brief summary of the background of this final action is provided below. A more detailed history of the development of these regulations, and the alternatives considered, are described in Amendment 7 to the 2006 Consolidated HMS FMP Final Environmental Impact Statement (Amendment 7 FEIS, August, 2014), which can be found online at the HMS Web site noted above.
NMFS published a proposed rule on August 21, 2013 (78 FR, 52032), which proposed the ``preferred alternatives'' analyzed in the Draft Amendment 7 Environmental Impact Statement and solicited public comments on the measures, which were designed to address the following objectives: (1) Prevent overfishing of and rebuild bluefin tuna stock, achieve on a continuing basis optimum yield, and minimize bluefin bycatch to the extent practicable by ensuring that domestic bluefin tuna fisheries continue to operate within the overall total allowable catch (TAC) set by ICCAT consistent with the existing rebuilding plan; (2) optimize the ability for all permit categories to harvest their full bluefin quota allocations, account for mortality associated with discarded bluefin in all categories, maintain flexibility of the regulations to account for the highly variable nature of the bluefin fisheries, and maintain fairness among permit/quota categories; (3) reduce dead discards of bluefin tuna and minimize reductions in target catch in both directed and incidental bluefin fisheries, to the extent practicable; (4) improve the scope and quality of catch data through enhanced reporting and monitoring to ensure that landings and dead discards do not exceed the quota and to improve accounting for all sources of fishing mortality; and (5) adjust other aspects of the 2006 Consolidated HMS FMP as necessary and appropriate, including northern albacore tuna quota implementation.
On August 22, 2013 (78 FR 52123), NMFS published a notice in the Federal Register informing the public of the date and locations of public hearings on Amendment 7. From August 2013 to January 2014, NMFS conducted 11 public hearings, and consulted with the New England Fishery Management Council, the Gulf of Mexico Management Council, and the South Atlantic Fishery Management Council. The hearings were held in diverse locations in Atlantic and Gulf of Mexico coastal states. On August 30, 2013, the Environmental Protection Agency published a Notice of Availability of the draft environmental impact statement (DEIS) (78 FR 53754; August 30, 2013).
The August 21, 2013, Amendment 7 proposed rule set the end of the public comment period as October 23, 2013, but given the length and complexity of the rule, and to provide additional time for consideration of public comments in light of the November meeting of ICCAT, the end of the comment period was extended to December 10, 2013 (78 FR 57340; September 18, 2013). Subsequently, due to the government shutdown in October 2013, and NMFS' inability to respond to constituents
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during that time frame and based on requests for an extension due to the complexity of the measures covered in the DEIS, NMFS again extended the end of the public comment period until January 10, 2014, to provide additional opportunity for informed comment (78 FR 75327; December 11, 2013). On December 26, 2013, NMFS published a Federal Register notice announcing a public hearing conference call and webinar to provide additional opportunity for the public from all geographic areas to comment (78 FR 78322).
The comments received on Draft Amendment 7 and its proposed rule, and responses to those comments, are summarized below in the section labeled ``Response to Comments.''
The bluefin tuna fishery is managed principally through a quota. Currently, NMFS implements and codifies the ICCAT-recommended U.S. quota through rulemaking, annually or bi-annually depending on the length of the relevant ICCAT recommendation. Also through rulemaking (the ``quota specifications process'') NMFS annually adjusts the U.S. baseline bluefin quota to account for any underharvest or overharvest of the adjusted U.S. quota from the prior year; specifies subquotas that result from application of the 2006 Consolidated HMS FMP allocations; and adjusts subquotas as appropriate following consideration of domestic management needs. NMFS must account not only for landings but for bluefin tuna discarded dead. NMFS estimates and accounts for dead discards in the pelagic longline fishery, which cannot target bluefin tuna but catches them while targeting swordfish and other tunas.
National Standard 1 requires that ``conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.'' The Magnuson-Stevens Act defines ``optimum yield'' as the amount of fish that, among other things, provides for rebuilding to a level consistent with producing the maximum sustainable yield from the fishery. In ATCA, Congress also directed NMFS to manage the bluefin fishery to ensure that NMFS provides U.S. fishing vessels ``with a reasonable opportunity to harvest such allocation, quota, or at such fishing mortality level. . . .'' This rule builds upon an extensive regulatory framework for management of the domestic bluefin fishery pursuant to the 20-year rebuilding program adopted in the 1999 FMP and continued under the 2006 Consolidated HMS FMP. As described below, the final rule measures were designed to allow fishery participants to fully harvest, but not exceed, the U.S. bluefin quota by refining the existing management tools. NMFS is implementing a detailed, multi-level approach to resolving challenges in administering and carrying out the current quota system, which, if left unaddressed, may otherwise result in overharvests of the U.S. quota in the future. These final rule measures directly support the goals of reducing overfishing, rebuilding the western bluefin stock, and achieving optimum yield by ensuring that the fishery continues to be managed within the ICCAT-approved TAC, and consistent with National Standard 1's requirements.
Northern Albacore Tuna
Amendment 7 also includes measures for management of north Atlantic albacore (or ``northern albacore'') tuna. Since 1998, ICCAT has adopted recommendations regarding the northern albacore tuna fishery. A multi-
year management measure for northern albacore tuna was first adopted in 2003, setting the TAC at 34,500 mt. ICCAT's Standing Committee on Research and Statistics (SCRS) assessed the northern albacore tuna stock in 2009 and concluded that the stock continues to be overfished with overfishing occurring, recommending a level of catch of no more than 28,000 mt to meet ICCAT management objectives by 2020. In response, in 2009 ICCAT established a North Atlantic albacore tuna rebuilding program via Recommendation 09-05, setting a 28,000mt TAC and including several provisions to limit catches by individual ICCAT parties (for major and minor harvesters) and reduce the amount of unharvested quota that could be carried forward from one year to the next, from 50 percent to 25 percent of a party's initial catch quota. The 2009 recommendation expired in 2011.
In 2011, ICCAT Recommendation 11-04 again set a TAC of 28,000 mt for 2012 and for 2013 and contained specific recommendations regarding the North Atlantic albacore tuna rebuilding program, including an annual TAC for 2012 and 2013 allocated among the European Union, Chinese Taipei, the United States, and Venezuela. The U.S. quota for 2012 and 2013 is 527 mt. The recommendation limits Japanese northern albacore tuna catches to 4 percent in weight of its total Atlantic bigeye tuna longline catch, and limits the catches of other ICCAT parties to 200 mt. The recommendation also specifies that quota adjustments for a given year's underharvest or overharvest may be made for either 2 or 3 years from the subject year (i.e., adjustments based on 2013 catches would be made in either 2015 or 2016). Pursuant to ATCA and the Magnuson-Stevens Act, in this final rule NMFS implements the ICCAT-recommended U.S. quota and establishes provisions to adjust the base quota for over or underharvests via annual quota specifications.
Implemented Measures
The rule finalizes most of the management measures that were contained in the proposed rule for Amendment 7 as they were proposed, with several exceptions. This section provides a summary of the final management measures being implemented by Amendment 7 and notes certain changes from the proposed rule to this final rule that may be of particular interest to the regulated community. These include changes to the basis for annual purse seine quota availability, changes to two Gear Restricted Areas (GRAs), changes to the range of years used in the performance metrics and BFT quota allocations formula, changes to VMS requirements, and changed to effective dates. Measures that are different from the proposed rule, or measures that were proposed but not implemented, are described in detail in the section titled, ``Changes from the Proposed Rule.''
1. Quota Reallocation
Codified Quota Reallocation
The Longline category's percentage of the baseline U.S. bluefin tuna quota remains at 8.1 percent, but each year the Longline category quota will be increased by a net amount of 62.5 mt based on deductions from the other quota categories, to more fully and predictably account for Longline category incidental bluefin catch, including both dead discards and landings. This measure does not modify the previously-
codified category quota allocation percentages. Rather, NMFS will calculate the bluefin quota for each of the quota categories through the following process: First, 68 mt will be subtracted from the baseline annual U.S. BFT quota for reallocation to the Longline category quota. All quota categories will be reduced consistent with the allocation percentages codified at 50 CFR 635.27. Second, the remaining quota will be divided among the categories according to those allocation percentages. Third, the 68 mt derived in Step One from all categories, including the Longline category, will be added to the Longline category quota. The net
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amount of quota increase for the Longline category will be 62.5 mt.
Thus, 32.0 mt will be deducted from the General category (i.e., 47.1 percent of 68 mt), 2.7 mt from the Harpoon category (3.9 percent), 12.6 mt from the Purse Seine category (18.6 percent), 5.5 mt from the Longline category (8.1 percent), 13.4 mt from the Angling category (19.7 percent), and 1.7 mt from the Reserve category (2.5 percent). This equals 68 mt, which will be added to the Longline category, resulting in a net increase to the Longline category of 62.5 mt (68 mt minus the Longline category's contribution of 5.5 mt). If, for example, the baseline annual U.S. quota is 923.7 mt in a given year, then 403.0 mt would be allocated to the General category (i.e., 47.1 percent of 855.7 mt), 33.4 mt to the Harpoon category (3.9 percent), 159.1 mt to the Purse Seine category (18.6 percent), 137.3 mt for the Longline category (8.1 percent plus the 62.5 mt), 168.6 mt for the Angling category (19.7 percent), and 21.4 mt for the Reserve category (2.5 percent)
This measure provides additional quota to the Longline category to facilitate the ability to account for both landings and dead discards within the Longline category quota, consistent with the historical separate dead discard allocation, yet limits the amount of reallocation to the Longline category if the total U.S. quota increases. For more information on the historical dead discard allocation and the associated rationale for the 68 mt augmentation of the Longline category, see the Codified Reallocation section (2.1.2) of the FEIS.
Annual Quota Reallocation
NMFS will annually adjust the Purse Seine quota, using a formula based on the weights of reported landings and estimated weights of dead discards (calculated from reported lengths) by purse seine fishery participants in the previous year. Twenty-five percent of each Purse Seine category participant's base quota will be available as a minimum to each Purse Seine fishery participant annually. Beyond that amount, quota will be available to such participants based on the fishery participant's catch in the previous year. Any quota not allocated to the Purse Seine category participants will be allocated to the Reserve category for possible redistribution consistent with specified regulatory criteria to other quota categories, and to support other objectives of the 2006 Consolidated HMS FMP. By moving portions of the unused Purse Seine quota to the Reserve category annually, this measure will give NMFS more flexibility in administering the quota system.
Based on public comment, this measure was modified from the proposed rule so that the annual formula for quota availability is based on the previous year's individual purse seine participant's catch, rather than based on the catch of the Purse Seine category as a whole. This modification ties quota allocation more closely to the individual participants catch and creates incentive for fishery participants to remain active in the fishery. Without this modification, individual allocations would be tied to the catch of the other vessels in the fishery, which could have unfair results if catch were to vary greatly among the vessels. For example, in a year where overall category catch were low, an individual purse seine participant could have a relatively low amount of quota available for use, even if that participant landed a substantial portion of its allocation during the previous year.
Annually, NMFS will make a determination regarding the quota available for each purse seine participant for the year, based on the bluefin catch by such participants in the previous year. Purse Seine participants will have available for use either 100 percent, 75 percent, 50 percent, or 25 percent of their base quota, according the following allocation criteria: If the individual catch is between 0 and 20 percent of the individual base quota in year one, the Purse Seine fishery participant will have available for use 25 percent of their base quota in year two, and 75 percent of their quota will be available to the Reserve Category for that year. If the individual catch is greater than 20 percent and up to 45 percent of their individual base quota in year one, the Purse Seine fishery participant will be allocated 50 percent of their quota in year two, and 50 percent of their quota will be available to the Reserve Category for that year. If the individual catch is greater than 45 percent and up to 70 percent of their base quota in year one, the Purse Seine fishery participant will have available for use 75 percent of their individual base quota in year two, and 25 percent of their quota will be available to the Reserve Category for that year. If the individual catch is greater than 70 percent of their base quota in year one, the Purse Seine fishery participant will have available for use 100 percent of their baseline quota in year two, and no quota will be available to the Reserve Category for that year. These thresholds (>20 percent, >45 percent, >70 percent) will apply following the same pattern in years beyond year two, with each year's quota reflecting the previous year's catch. In summary, if Purse Seine fishery participants catch a large portion of their individual allocated base quota in one year, they have available for use a large portion of their base quota in the next year. If a Purse Seine fishery participant's catch is low in one year, a larger portion of their Purse Seine base quota becomes available for other management purposes. The Purse Seine quota available would not be ``locked-in'' at a low level because the criteria are structured to enable increased utilization of available quota. For example, if the catch in year one is between 0 and 20 percent of their individual year one baseline Purse Seine quota, the Purse Seine fishery participant would have available for use 25 percent of their individual baseline quota in year two. If, in year two, the individual catch is greater than 20 percent of their individual baseline quota, but still within their individual annual allocation (i.e., catch is between 20 percent and 25percent), the Purse Seine fishery participant would have available for use 50% of their individual baseline quota in year three. The Purse Seine participants catch levels and allocation levels have been staggered to allow for an increase in allocation in the following year, without causing the Purse Seine fishery participant to exceed the current year's allocation to do so.
This measure balances the need to provide the Purse Seine category participants a reasonable amount of fishing opportunity in a predictable manner, while making use of quota that may otherwise be unused. As described under ``Modifications to the Reserve Category,'' quota that is available to the Reserve Category may be utilized in a variety of ways to meet multiple objectives. NMFS will annually calculate the Purse Seine catch for that year and publish a notice in the Federal Register regarding the amount of quota that would be allocated to the Purse Seine fishery participants, as well as the corresponding amount allocated to the Reserve category and any disposition of the quota from the Reserve category for the subsequent year made at that time. After the initial adjustment, NMFS may make additional modifications to the Purse Seine quota inseason in accordance with the criteria for inseason adjustments specified at Sec. 635.27(a), or make subsequent use of quota from the Reserve category.
Modifications to the Reserve Category
This measure gives NMFS management flexibility by augmenting the amount of quota in the Reserve category under certain circumstances
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and adds new criteria to the list of determination criteria NMFS considers in redistributing quota to or from the Reserve category, to be responsive to the current conditions in the fisheries and facilitate adaptation to future changes in the fisheries. The potential sources of quota for the Reserve category on top of its baseline allocation of 2.5 percent are: (1) Available underharvest of the U.S. quota that is allowed to be carried forward; and (2) unused Purse Seine quota, under the Annual Quota Reallocation measure described above. For example, under the Annual Quota Reallocation, NMFS will annually adjust the purse seine quota, using a formula based on the weights of reported landings and estimated weights of dead discards (calculated from reported lengths) by each Purse Seine fishery participants in the previous year. Any remaining amount of Purse Seine quota will then be reallocated to the Reserve category for that subsequent year. NMFS could utilize quota from the Reserve category inseason after considering defined criteria and objectives. NMFS adds five criteria to the existing nine criteria to consider when making inseason or annual quota adjustments. The five new criteria, added to Sec. 635.27(a)(8)(1)-(9) are: (10) Optimize fishing opportunity; (11) account for dead discards; (12) facilitate quota accounting; (13) support other fishing monitoring programs through quota allocations and/or generation of revenue; and (14) support research through quota allocations andr generation of revenue.
These modifications to the Reserve category will increase management flexibility in administering the quota system in a way that takes into account fluctuations in the characteristics of the fishery.
2. Gear Restricted Areas
Modified Cape Hatteras Gear Restricted Area, With Conditional Access
This final rule establishes a GRA off Cape Hatteras, NC, and limits access to this area for vessels fishing with pelagic longline gear during the 5-month period from December through April. The shape of the GRA has been modified from the proposed rule to remove the southeastern corner of the defined geographic area. This change was to avoid unintended effects on fishing outside the closed area that would have occurred if the action were implemented as proposed because it did not account for the effect of the prevailing currents on how pelagic longline gear drifts in that area.
Under this management measure, NMFS annually will grant qualified vessels conditional access to this GRA to fish with pelagic longline gear. Access will be granted based on a formula consisting of the following metrics: Ratio of bluefin tuna interactions to designated species catch, compliance with the Pelagic Observer Program requirements, and compliance with HMS logbook reporting requirements. Vessels will not qualify to fish in the area with pelagic longline gear if they have not demonstrated their ability to avoid bluefin tuna and/
or comply with reporting and monitoring (observer) requirements. Non-
qualifying vessels will be allowed to use other gear types to fish for non-bluefin HMS species authorized for use by pelagic longline vessels, such as buoy gear, green-stick gear, or rod and reel, in the area during the months of the restriction (December through April), but they may not fish with pelagic longline gear in during those months. Although originally proposed in the Proposed Rule, the final rule does not allow non-qualifying vessels access to the GRA to fish under the General category regulations and target bluefin (discussed further in the Comments and Responses). The principal objective of conditional access to the GRA is to balance the objective of reducing dead discards with the objective of providing reasonable fishing opportunity. The second objective is to provide strong incentives to modify fishing behavior to avoid bluefin tuna and reduce dead discards, as well as improve compliance with the logbook reporting and observer requirements. This regulatory approach is based on the fact that, historically, relatively few vessels have consistently been responsible for the majority of the bluefin tuna dead discards within the Longline category. Conditioning access on compliance with reporting and monitoring requirements reflects the critical importance of fishery data to the successful management of the fisheries.
The initial evaluation of performance metrics will be based upon data from 2006 through 2012, and subsequent ``performance scores'' will be based upon the most recent complete three-consecutive-year period for which data are available. In a situation where an Atlantic Tunas Longline permit has been transferred from one vessel to another, or there has been an ownership change of a permitted vessel, the relevant vessel fishing history used for the calculation of the performance score regarding access to the Cape Hatteras GRA remains with the vessel. As further explained in the Response to Comments below (Comment 26), NMFS modified the relevant historical time period from the proposed rule (which was 2006-2011). Atlantic Tuna Longline permit holders will be notified annually of the status of their relevant vessel, and only aggregated information regarding the vessel status will be made public. Atlantic Tuna Longline permit holders will be able to appeal their relevant vessel performance scores to NMFS by submitting a written request to appeal, indicating the reason for the appeal and providing supporting documentation for the appeal (e.g., copies of landings records and/or permit ownership, Pelagic Observer Program information, logbook data, etc.). NMFS will evaluate the appeal based upon the following criteria: (1) The accuracy of NMFS records regarding the relevant information; and (2) correct assignment of historical data to the vessel owner/permit holder. Such permit holders may also appeal on the basis of changes in vessel ownership or permit transfers. Appeals based on hardship factors will not be considered. See below for more information on appeals.
NMFS will have the authority to terminate access for all pelagic longline vessels or individual pelagic longline vessels to the GRA via inseason action to address issues including: (1) Failure to achieve or effectively balance the objective of reducing dead discards with the objective of providing fishing opportunity; (2) bycatch of bluefin tuna or other HMS species that may be inconsistent with the objectives or regulations or the 2006 Consolidated HMS FMP, or ICCAT recommendations; or (3) bycatch of marine mammals or protected species that is inconsistent with the Marine Mammal Protection Act (MMPA), Pelagic Longline Take Reduction Plan (PLTRP), or the 2004 Biological Opinion (BiOP).
The performance metric formula will enable qualified vessels to continue to fish in the Modified Cape Hatteras GRA, yet will substantially reduce bluefin tuna dead discards by precluding fishing in the GRA by those with a history of high bluefin tuna interaction in relation to other designated species catch. In order to characterize vessel performance in a manner that is fair, consistent, and feasible to administer, the performance metric formula is based on relatively simple, objective, and quantifiable information. For each of the three performance metrics, a vessel will be scored on a scale of 1 to 5, with 5 reflecting better performance. Vessels with a ratio of bluefin tuna interactions to designated species catch of 1 will not be allowed to fish in the Modified Cape Hatteras GRA using pelagic longline
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gear. If a vessel's Pelagic Observer Program Compliance score is 2 or less, that vessel will not be allowed to access the area and fish with pelagic longline gear, unless the vessel's logbook compliance score is 4 or 5.
The performance metric formula will reflect bluefin tuna interactions as measured by the ratio of the number of bluefin tuna interactions (landings, dead discards, and live discards, in number of fish) to the weight of designated species landings (in pounds). These designated species will consist of the more common marketable catch harvested by pelagic longline vessels: Swordfish; yellowfin, bigeye, albacore, and skipjack tunas; dolphin; wahoo; and porbeagle, shortfin mako, and thresher sharks. The use of a ratio incorporating both designated species landings and bluefin tuna interactions provides a metric that is intended to eliminate bias resulting from the differences among vessels in size or fishing effort.
The Pelagic Observer Program metric reflects compliance with requirements regarding communications, and other aspects of observer deployment. The scoring system is designed to be neutral with respect to valid reasons that a vessel was selected by the observer program but did not take an observer, and designed to weigh trips that were not observed due to noncompliance with the communication requirements more heavily than those that were not observed due to noncompliance with the safety and accommodation requirements. The logbook reporting metric reflects compliance with the requirement that the vessel owner/operator must submit the logbook forms postmarked within 7 days of offloading the catch, and, if no fishing occurred during a month, must submit a no-fishing form postmarked no later than 7 days after the end of that month.
Spring Gulf of Mexico Pelagic Longline Gear Restricted Areas
This final rule establishes two GRAs in the Gulf of Mexico and limits access to these areas for vessels fishing with pelagic longline gear during the 2-month period from April through May to reduce dead discards and protect bluefin tuna on their spawning grounds, while maintaining fishing opportunities for pelagic longline vessels as appropriate. As described in the Response to Comments below (Comments 52 and 53), the size and location of the geographic area of the GRA has been modified from the proposed rule to take into account the best available information about the location of bluefin interactions (eastward trend), the high variability of bluefin tuna distribution, the economic importance of the fishery, and other factors.
Other gear types authorized for use by pelagic longline vessels such as buoy gear, green-stick gear, or rod and reel are allowed in these areas, provided the vessel abides by any rules/regulations that apply to those gear types
Transiting Closed Areas
This final rule allows vessels with an Atlantic Tunas Longline permit, Swordfish Incidental or Directed Limited Access permit, or a Shark Limited Access permit fishing with bottom or pelagic longline gear to transit areas that are closed or restricted to such gear, if they remove and stow the gangions, hooks, and buoys from the mainline and drum. No baited hooks are allowed. The specific closed and restricted areas to which this transiting provision applies include those established by this rule (Spring Gulf of Mexico GRAs and Modified Cape Hatteras GRA), as well as the following pelagic longline closed areas in effect: Northeastern U.S. Closure, Northeast Distant Restricted Fishing Area, Charleston Bump, East Florida Coast Closed Area, and DeSoto Canyon Closed Area. This measure will allow vessels to transit the following bottom longline closed areas in effect: Mid-
Atlantic Shark, Snowy Grouper Wreck, Northern South Carolina, Edisto, Charleston Deep Artificial Reef, Georgia, North Florida, St Lucie Hump, East Hump, Madison-Swanson, Steamboat Lumps, and Edges 40 Fathom Contour.
This regulatory provision reduces travel costs by allowing more direct routes of travel, and addresses the safety-at-sea concern associated with the requirement to steam around restricted areas.
3. Quota Controls
NMFS Closure of the Pelagic Longline Fishery
Under measures adopted in the final rule, the pelagic longline fishery will close (i.e., use of pelagic longline gear is prohibited) when the total Longline category quota is reached, projected to be reached or exceeded, or when there is high uncertainty regarding the estimated or documented levels of bluefin tuna catch. These closures will help prevent overharvest of the Longline category quota and prevent further discards of bluefin tuna. When NMFS projects that the quota will be reached, it will file a closure action with the Office of the Federal Register for publication. Vessels will be required to offload all bluefin tuna prior to the closure date/time. Criteria NMFS will consider include those listed under Sec. 635.27(a)(8) as well as: Total estimated bluefin tuna catch (landings and dead discards) in relation to the quota; estimated amount by which the bluefin tuna quota might be exceeded; usefulness of data relevant to monitoring the quota; uncertainty in the documented or estimated dead discards or landings of bluefin tuna; amount of bluefin tuna landings or dead discards within a short time; effects of continued fishing on bluefin tuna rebuilding and overfishing; provision of reasonable opportunity for pelagic longline vessels to pursue the target species; variations in seasonal distribution, abundance or migration patterns of bluefin tuna; and other relevant factors. NMFS will use the best available data to calculate the most recent, complete, and available estimate of dead discards on a fishery-wide basis consistent with current regulations. Best available data may include, among other things, vessel-based reports, electronic monitoring data, and observer data, as appropriate.
Individual Bluefin Quotas (IBQs)
This final rule implements an IBQ management system, which is summarized and then described in further detail below.
Summary of the IBQ Program
NMFS is implementing an IBQ Program pursuant to section 303A of the MSA, which authorizes development of limited access privilege programs (LAPP). A LAPP creates permits, which are issued for a period of not more than 10 years, to harvest a quantity of fish expressed by a unit(s) representing a portion of the total allowable catch that may be received or held for exclusive use by a person. Section 303A(c), 16 U.S.C. 1853a, identifies the requirements for such a program (note that the referendum requirements of section 303A(c)(6)(D) are inapplicable to this program for the Atlantic HMS fisheries). This final rule implements IBQs for vessels permitted in the Atlantic Tunas Longline category (provided they also hold necessary limited access swordfish and shark permits). Specifically, the IBQ Program requires vessels fishing with pelagic longline gear to account for bluefin tuna landings and dead discards using IBQ allocation (obtained through shares or leases of allocation), and prohibits the use of pelagic longline gear when the vessel's IBQ allocation has been caught. An IBQ share is a percentage of the total available Longline quota. Thus, if the total available Longline quota is modified as a result of an ICCAT
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recommendation and the Longline quota is changed as a result, the share (specific percentage) associated with an eligible permit would not change, but would result in a modified amount of IBQ allocation (mt or equivalent pounds).
The Northeast Distant Area (NED) is a distinctly managed geographic area due to the specification of a separate ICCAT quota relative to the rest of the pelagic longline fishery and is not managed under the full IBQ Program restrictions. However, there are provisions of the IBQ Program that will apply to vessels fishing with pelagic longline gear in the NED. For example, vessels will be required to have the minimum IBQ allocation to operate in the NED starting in 2016 and when NED bluefin quota has been exhausted, permitted vessels must abide by all the requirements of the IBQ Program.
The IBQ Program is a suite of management measures intended to work together. An IBQ share is the percentage of the Longline category quota that is associated with an eligible vessel, based upon the IBQ share formula and the relevant vessel history, and an IBQ allocation is the amount (mt) of bluefin tuna quota that is distributed to a permitted vessel, based upon the relevant IBQ share, and the annual Longline category quota. Eligible pelagic longline vessels will receive one of three IBQ share percentages (1.2%, 0.6%, or 0.37%), which must be used by individual vessels to account for all their bluefin tuna landings and dead discards. Shares and allocations are designated as either Gulf of Mexico (GOM) or Atlantic (ATL). Vessels are prohibited from using Atlantic allocation to account for bluefin tuna catch in the Gulf of Mexico, thereby limiting potential shifts in effort. Specifically, a vessel with bluefin catch in the Gulf of Mexico may not use Atlantic allocation to account for such catch. However, vessels may use Gulf of Mexico allocation to account for bluefin catch in both the Gulf of Mexico and Atlantic. Allocations may be leased annually by Atlantic Tunas Longline category permit holders or Purse Seine category participants, and a minimum amount of allocation is required for a pelagic longline vessel to depart on a trip in the Atlantic (0.125 mt) using pelagic longline gear. A higher minimum amount of quota (allocation) is required for a pelagic longline vessel to depart on a fishing trip in the Gulf of Mexico (0.25 mt). A pelagic longline vessel may not use Atlantic allocation to satisfy the minimum share requirement for a fishing trip in the Gulf of Mexico. If a vessel retains legal sized bluefin tuna in excess of its allocation (``quota debt''), it may land the fish, but must lease additional IBQ allocation from another vessel to account for the excess catch, and is not allowed to fish with pelagic longline gear until the quota debt is balanced in the system (is accounted for) and the minimum allocation required for a vessel to depart on a trip is acquired. A vessel's IBQ allocation cannot carry-over from one year to the next, but if a vessel is unable to satisfy its quota `debt' in a particular fishing year, quota will be deducted from the vessel's allocation during the subsequent year.
Although temporary leasing of IBQ allocation can occur, no permanent sale of IBQ shares is allowed at this time, to reduce risks for permit holders during the initial stages of the IBQ Program, when the market for bluefin tuna quota shares is new and uncertain. Measures to allow permanent sale of bluefin tuna quota shares may be implemented in the future through separate proposed and final rulemaking. This will allow time for IBQ fishermen to familiarize themselves with the IBQ Program and market for bluefin tuna shares.
As described in more detail below, NMFS is implementing an internet-based system to track bluefin tuna catch (pelagic longline and purse seine), and the use and leases of IBQ allocation. VMS must be used by vessel operators to report bluefin tuna catches to increase the timeliness of dead discard data; and electronic monitoring (cameras and associated equipment) are required on pelagic longline vessels as one element of the monitoring program.
The IBQ Program will be evaluated after 3 years, and NMFS will implement a cost recovery program through separate rulemaking.
What vessels are eligible to receive initial bluefin tuna quota shares?
Vessels must meet two requirements to be eligible to receive IBQ shares: (1) Vessels must have a valid Atlantic Tunas Longline category permit; and (2) vessel must be deemed to be ``active''. Vessels that made at least one set using pelagic longline gear between 2006 and 2012 (based on pelagic longline logbook data) are defined as ``active'' This date range includes 2012, and therefore is one year longer than that proposed to ensure that recent participants in the fishery are defined as ``active.'' For the purpose of IBQ share eligibility, a ``valid Atlantic Tunas Longline category permit'' is one held as of the date the proposed rule was published, which was August 21, 2013.
Vessels with valid Atlantic Tunas Longline permits that do not meet the initial eligibility criteria may lease bluefin tuna IBQ allocation from IBQ allocation holders. Permits that are not associated with a vessel, such as a permit characterized as ``No Vessel ID,'' are not eligible for an initial IBQ share but would be eligible to receive IBQ allocation (through a lease) if and when the permit is reassociated with a vessel. Such a vessel would be required to lease IBQ allocation before fishing with pelagic longline gear. New entrants to the fishery must either obtain an Atlantic Tunas Longline permit with associated quota share, or if the valid permit did not have quota share, obtain bluefin tuna quota through lease/sale to fish.
How much bluefin tuna quota does each eligible vessel get?
A vessel's IBQ share of the Longline quota is based upon two elements: The amount of bluefin tuna caught between 2006 and 2012, and the amount of designated species landings (i.e., swordfish; yellowfin, bigeye, albacore, and skipjack tunas; dolphin; wahoo; and porbeagle, shortfin mako, and thresher sharks). As discussed below in the ``Response to Comments'' (Comment 76), this date range includes 2012, and therefore is one year longer than that proposed to consider the most recent fishing activity of vessels, and to be inclusive regarding the important elements. More specifically, the two factors that are the basis of the allocation formula are: (1) Historical bluefin tuna catch (from vessel logbook data) expressed as ratio of the number of bluefin tuna interactions to `designated species' landings; and (2) `designated species' landings (from the NMFS dealer data (weigh-out slips) and logbook information). The use of these two factors in the quota share allocation formula is intended to acknowledge past bluefin tuna avoidance, ensure a fair initial allocation, and consider the diversity in vessel fishing patterns and harvest characteristics. Past fishing that resulted in fewer bluefin tuna interactions will result in larger IBQ shares of bluefin tuna. Landings of designated species are an indicator of both the level of fishing effort and activity as well as vessel success at targeting those species and minimizing bluefin bycatch interactions. This method incorporates the rate of historical bluefin tuna interactions but also includes the amount of designated species landings, recognizing that greater levels of fishing activity are likely to be correlated with a greater number of bluefin tuna interactions.
The specific IBQ allocation formula is as follows: Because the bluefin tuna interactions to designated species
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landings ratio is very small, designated species landings were multiplied by 10,000 in order to derive a ratio that is more practical (i.e., 0.95 instead of 0.000095). In order to combine the two metrics, scores were assigned to each metric (the bluefin tuna catch to designated species landings ratio and historical designated species landings) as described below. Active vessels were sorted into three categories, using total designated species landings from 2006 through 2011, based on percentiles of landings from lowest to highest (low, medium, and high, 0 to or CFL) using their E-MTU VMS within 12 hours of the completion of the haul-back. Furthermore, additional information on fishing effort, including the number of hooks deployed on the set that had a bluefin would also be reported.
This alternative is expected to have neutral to minor adverse economic impacts on pelagic longline vessel operators and owners in the short and long-term. Economic impacts to shore-based businesses, including fish dealers, bait and gear suppliers, and other fishing related industries are not expected. Existing regulations require all pelagic longline vessel operators to provide hail out/in declarations and provide location reports on an hourly basis at all times unless they have declared out of the fishery or been granted a power down exemption by NMFS. In order to comply with these regulations, vessel owners must subscribe to a communication service plan that includes an allowance for sending similar declarations (hail out/in) describing target species, fishing gear possessed, and estimated time/location of landing using their E-MTU VMS. This alternative would require, on average, 1 additional report per trip that describe bluefin interactions and fishing effort. Each report is expected to be comprised of less than 50 characters. Because of the minimal time (approximately 5 minutes) required to submit these short reports and the fact that owners would likely already be enrolled in a communication service plan that would encompass transmission of these additional characters, adverse economic impacts are not expected.
Alternative D 2--Electronic Monitoring of Longline Category
Under alternative D2a, the No Action alternative, NMFS would maintain the status quo and would not pursue any additional measures that would require permitted pelagic longline vessels to install electronic devices such as cameras in order to support the monitoring or verification of bluefin catch under the IBQ Program. Currently, pelagic longline vessels are required to use E-MTU VMS units to provide hourly position reports and to provide hail out/in declarations describing target species, fishing gear onboard, and time/location of landing unless they have declared out of the fishery or been granted a power down exemption by NMFS. Under this alternative, these requirements would be maintained, and no additional electronic monitoring requirements would be implemented. This alternative would not result in economic impacts because it would maintain existing requirements.
Alternative D 2b, a preferred alternative, would require the use of electronic monitoring, including video cameras, by all vessels issued an Atlantic Tunas Longline category permit that intend to fish for highly migratory species. Specifically, vessels would be required to install and maintain video cameras and associated data recording and monitoring equipment in order to record all longline catch and relevant data regarding pelagic longline gear retrieval and deployment.
More specifically, this alternative would require the installation of NMFS-approved equipment that may include one to four video cameras, a recording device, video monitor, hydraulic pressure transducer, winch rotation sensor, system control box, or other equipment needed to achieve the objectives. Vessel owner/operators would be required to install, maintain, facilitate inspection of the equipment by NMFS, and obtain NMFS approval of the equipment. The vessel owner/operator would be required to store and make the data available to NMFS for at least 120 days, and facilitate the submission of data to NMFS. The vessel operator would be responsible for ensuring that all catch is handled in a manner than enables the electronic monitoring system to record such fish, and must identify a crew person or employee responsible for ensuring that all handling, retention, and sorting of bluefin occurs in accordance with the regulations.
While the electronic monitoring program is being designed and implemented, NMFS would continue to use logbook, observer, and landings information to assess catch by the pelagic longline fleet. NMFS would communicate in writing with the vessel owners during all phases of the program to provide information to assistant vessel owners, and facilitate the provision of technical assistance.
This alternative would require both fixed and variable costs over the service life of each camera installed onboard. Fixed costs for vessel owners would include purchasing the camera ($3,565) and having it installed on the vessel ($500). Variable costs for vessel owners include data retrieval ($45/hour; $4,500/year); service ($45/hour; $270/year); technician travel ($0.5/mile; $1,680/year); fishing activity interpretation ($47/hour; $1,175 year); and catch data interpretation ($1.5 hours per haul at a labor rate of $47/hour, 1 haul per trip and 100 trips; $7,050/year). The estimated total variable costs would be $14,663, and first year fixed costs would be $4,065 for the purchase and installation of the equipment. First year fixed and variable costs total $18,728/vessel for the first year. After the first year, the annual variable costs of operation are estimated to be $14,663/vessel. The estimate provided here for catch data interpretation is likely an overestimate as the Agency is primarily concerned with verification of bluefin reports and no other species (i.e., yellowfin tuna, swordfish, dolphin, wahoo, etc.) being landed on pelagic longline vessels. After purchasing the camera and having it installed, expenses
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would be limited to the variable costs listed. This alternative would result in direct and indirect adverse economic impacts to pelagic longline vessel owners in the short and long term. NMFS is minimizing the economic impacts of this alternative by paying for the initial installation of the equipment, as well as for some of the variable costs such as review of the data.
Alternative D 3--Automated Catch Reporting
The preferred alternative D 3 would require Atlantic Tunas General, Harpoon and HMS Charter/Headboat permit holders to report their bluefin catch (i.e., landings and discards) using an expanded version of the bluefin recreational automated landings reporting system (ALRS). The automated system includes two reporting options, one that is web-based and an interactive voice response telephone system. The ``No Action'' alternative is not preferred because it would not meet the Amendment 7 objectives, and would have no social or economic impacts.
The primary impacts of the preferred alternative are the amount of time the new reporting requirement would take, and the reporting costs, respectively. NMFS estimated the potential annual catch for each permit category based on previous years data and multiplied it by the 5 minutes it takes to complete a report (NMFS 2013) for each fish to estimate a total reporting burden of 607 hours for potentially 8,226 permit holders as a result of this alternative. Since the data are collected online or via telephone, there are no monetary costs to fishermen or direct economic impacts to fishermen from this alternative.
Adjustments to both the online and IVR systems of the ALRS to implement catch reporting for General, Harpoon, and HMS Charter/
Headboat category permit holders are estimated to cost NMFS a total of between $15,000 and $35,000 (B. McHale, pers. comm.) Annual maintenance would likely cost approximately $8,700 per year, which is the current cost for maintaining the ALRS and the call-in system for reports of other recreational HMS landings (NMFS 2013). The economic impacts of this alternative are minimized because the online reporting requirement results in a relatively low reporting burden.
Alternative D 4--Deployment of Observers
Under alternative D 4a, the No Action alternative, which is the preferred alternative, there would be no changes to the current observer coverage in the Atlantic Tunas Longline, General, Purse Seine, Harpoon, or HMS Charter/Headboat categories. Therefore, there would be no additional cost to small businesses.
Alternative D 4b would increase the level of NMFS-funded observers on a portion of trips by vessels fishing under the Atlantic Tunas Longline, General, Purse Seine, Harpoon, or HMS Charter/Headboat categories. There might be some minor costs to vessel operators with the increased chance that they will be selected for observer coverage and will have to accommodate an observer.
Alternative D 5--Logbook Requirement for Atlantic Tunas and HMS Category Permit Holders
Alternative D 5, the No Action alternative, is preferred and would make no changes to the current logbook requirements applicable to any of the permit categories. It would have no economic impact on fishing vessel owners.
Alternative D 5b would require the reporting of catch by Atlantic Tunas General, Harpoon, and HMS Charter/Headboat category vessels targeting bluefin through submission of an HMS logbook to NMFS. The direct social and economic impacts of this non-preferred alternative include the amount of time to complete logbook forms and the cost of submission (i.e., mailing) for all fishermen permitted in the affected permit categories. These impacts would be minor, adverse, and long-
term. A high-end proxy for the impacts of this alternative is the current reporting burden and cost for the entire HMS logbook program, which have been estimated for all commercial HMS fisheries (28,614 permits, NMFS 2011a). The annual reporting burden for the entire program is estimated at 36,189 hours and costs are $94,779 for postage. A more refined estimate is 6,735 hours, which is based on the number of fishermen likely to conduct directed fishing trips for bluefin based on the total number of General, Charter/Headboat, and Harpoon category permit holders in the states from Maine through South Carolina. This is likely also an over-estimate, since many General and Charter/Headboat permit holders in these states fish for yellowfin, or other tunas rather than bluefin, or, for Charter/Headboat permit holders, other HMS. NMFS estimates this alternative would have a total annual reporting burden of 16,526 hours and a cost of $8,263.
Alternative D 6--Expand the Scope of the Large Pelagics Survey
``No Action'' is the preferred alternative for the scope of the Large Pelagics Survey, and would have no social or economic impacts. The non-preferred alternative would expand the Large Pelagics Survey to include May, November, and December, and add surveys to the states south of Virginia, including those bordering the Gulf of Mexico, in order to increase the amount of information available about the recreational bluefin fishery, and further refine recreational bluefin landings estimates.
The direct economic impact of this non-preferred alternative is the amount of time that fishermen would expend participating in the survey. The impacts would be minor, adverse, and long-term. There are no financial costs to fishermen since the survey is conducted in person and over the phone, and there would be no direct economic impacts to fishermen for this alternative. NMFS estimates that the dockside survey takes 5 minutes on average, the phone survey takes 8 minutes, and collection of supplemental biological information takes about 1 minute. Previously, NMFS estimated that annual implementation of the Large Pelagics Survey throughout Atlantic and Gulf coastal states using the current target sample-size of 7,870 for the dockside survey, 10,780 for the phone survey and 1,500 for the biological survey would result in a reporting burden of 656 hours, 924 hours, and 25 hours respectively, for a total reporting burden of 1,730 hours (NMFS 2011b). This estimate could be used as a high-end proxy for the reporting burden associated with this alternative. Another method for estimating the reporting burden associated with this alternative is to use a ratio comparing the sample frame (i.e., number of permits) used in the coastwide estimate with the sample frame for the alternative (i.e., number of permits in states south of VA). Using this method, the reporting burden estimate is 559 hours. Because of the sampling design, adding the months of May, November, and December is not expected to add any reporting burden or cost (Ron Salz, pers. comm.).
Other Measures
Alternative E 1--Modify General Category Subquota Allocations
If no action is taken under Alternative E 1a to modify the General category sub-period allocations, economic impacts would be neutral and largely would vary by geographic area, with continued higher potential revenues during the
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summer months in the northeast and lower amounts to winter fishery participants off the mid- and south Atlantic states. General category participants that fish in the January bluefin fishery may continue to perceive a disadvantage as the available quota for that period is relatively small (5.3% of the General category quota) and they do not benefit from the rollover of unused quota either inseason or from one time period to the next. Nor do they benefit from prior-year underharvest, because of the timing of the annual final quota specifications (published in the middle of the year).
Alternative E 1b would establish a 12 equal monthly subquotas. It would allow the General category to remain open year-round, and would revise subquotas so that they are evenly distributed throughout the year (i.e., the base quota of 435.1 mt would be divided into monthly subquotas of 8.3 percent of the General category base quota, or 36.1 mt). NMFS would continue to carry forward unharvested General category quota from one time period to the next time period. This alternative would result in increased harvest in the earlier portions of the General category bluefin season and decreased harvest in the later portions of the season. For early season (January-March) General category participants, an additional 85.2 mt would be available (i.e., 108.3-23.1 mt). At $9.13/lb, this represents a potential increase in revenue of approximately $1.7 million overall during this time period, nearly five times the current amount. NMFS does not have General category price/lb information for April or May since there is currently no General category fishing during those months, but using $9.13/lb as an estimate, potential revenues for each of those months would be $726,621. Potential revenues for the current June-August and September periods would decrease by approximately $2.2 million (50%) and $1.7 million (69%), given recent average price ($9.13 and $9.61, respectively). For October-November and for December, potential revenues would increase by approximately $317,000 (28%) and $287,000 (60%) at $9.21/lb and $9.65/lb, respectively. Relative to the No Action alternative, under Alternative E 1b, there would generally be substantially increased revenues for January through May and October through December and substantially decreased revenues for June through September, and total annual revenues would decrease by approximately $100,000 (1%).
Alternative E 1c, a preferred alternative, is similar to Alternative E 1b and could result in a shift in the distribution of quota and thus fishing opportunities to the earlier portion of the year. For example, in 2011 and 2012, June through August General category landings totaled 140.3 mt and 192.2 mt, out of an available (base) quota of 217.6 mt. In 2010, June through August General category landings totaled 125.4 mt of an available (adjusted) quota of 269.4 mt. If quota that is anticipated to be unused in the first part of the summer season is made available to January period General category participants and bluefin are landed against the January period subquota, it would potentially result in improved and fuller use of the General category quota. Also, because bluefin price per lb is often higher in the January period than during the summer, shifting quota to this earlier period would result in beneficial impacts to early season General category participants off the mid- and south Atlantic states. It is possible, however, that an increase of bluefin on the market in the January period could reduce the average price for that time of year. Participants in the summer fishery may perceive such quota transfer to be a shift away from historical participants in the traditional General category bluefin fishing areas off New England and thus adverse. However, because unused quota rolls forward within a calendar year from one period to the next, any unused quota from the adjusted January period would return to the June through August period and onward if not used completely during that period. Overall, short-
term, direct impacts depend on the amount and timing of quota transferred inseason and would be expected to be neutral to minor, beneficial for January fishery participants and neutral to minor, adverse impacts for participants in the June through December General category fishery. This alternative minimizes economic impacts by providing additional regulatory flexibility for NMFS to transfer quota among seasons, and respond to and adapt to changes in the bluefin fishery. This flexibility therefore enhances NMFS' ability to optimize quota distribution among participants, seasons, and regions.
Alternative E 2--NMFS Authority To Adjust Harpoon Category Retention Limits Inseason
Under the No Action alternative, alternative E 2a, Harpoon category participants would continue to have the ability to retain and land up to four large medium fish per vessel per day, as well as unlimited giants. The economic impact of the No Action alternative is expected to be direct and neutral to slightly beneficial and short-term, as participants would continue to be able to retain and land a 3rd and 4th large medium bluefin, if available, and would not have to discard these fish if caught while targeting giant bluefin. In 2012, the first year following implementation of the four-fish limit on large mediums, there were only two trips on which three large mediums were landed and two trips on which four large mediums were landed, or 6% total of successful trips. Harpoon quota revenues in 2012 were 24 percent lower than 2011 and 71 percent higher than in 2010.
Under alternative E 2b, a preferred alternative, the daily retention limit of large medium bluefin would range from two to four bluefin, and the default large medium limit would be set at two fish. On a per-trip basis, there would be minor short-term direct adverse social and economic impacts that would depend on availability of large mediums to Harpoon category vessels on a per trip basis and the actual retention limit that NMFS sets inseason (or that is in place by default). Looking at successful 2012 trips, NMFS can estimate potential impacts of this change by determining the number of trips on which three or four large mediums were landed in 2012, and assume that those fish may not be able to be landed under this alternative. Using 2012 successful trip data, if the limit was set at two large mediums, the revenue from up to six large mediums would be foregone for the season, and with a three fish limit, the revenue of up to two large mediums would be foregone. At an average 2012 weight of 296 lbs. and an average price of $9.13/lb for the Harpoon category, a loss of one to six fish would be approximately $2,702 to $16,215 for the Harpoon category as a whole for the year.
Potentially beneficial economic impacts are possible if a lower limit at the beginning of the season results in the Harpoon category quota lasting longer into the season, as the average price/lb is generally higher in July and August than it is in June. NMFS has not needed to close the Harpoon category in recent years (i.e., as a result of the quota being met), but depending on the size of the amount of quota available and the number of Harpoon category participants, this may be a consideration. This alternative minimizes economic impacts by providing additional regulatory flexibility for NMFS to set bluefin trip limits, and respond to and adapt to changes in the bluefin fishery.
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Alternative E 3--Angling Category Subquota Distribution
Under alternative E 3a, the No Action alternative, Angling category participants fishing south of 39deg18' N. lat. (approximately, Great Egg Inlet, NJ) would continue to have their landings of trophy bluefin count toward a shared 66.7% of the Angling category large medium and giant bluefin subquota. The social impact of the No Action alternative is expected to vary by geographic area and be dependent on the availability of trophy-sized bluefin on the fishing grounds. If the pattern of high activity off Virginia and North Carolina continues, fishermen in the mid-Atlantic may have greater opportunities to land a bluefin and participants in the Gulf of Mexico may have no opportunity to land a bluefin when the fish are in their area as the southern trophy fishery may already be closed for the year. For Angling and Charter/Headboat fishermen, based on the last two years, there would be direct, beneficial, short-term social impacts in the mid-Atlantic and direct, adverse, short-term impacts for participants south of that area, including the Gulf of Mexico. The issue of economic costs for Angling category participants is not relevant as there is no sale of tunas by Angling category participants. For charter vessels, which sell fishing trips to recreational fishermen, economic impacts are expected to be neutral to beneficial for those in the mid-Atlantic and neutral to adverse for those south of that area, including the Gulf of Mexico, as the perceived opportunity to land a trophy bluefin may be diminished. This should be tempered in the Gulf of Mexico, where there is no directed fishing for bluefin allowed. Given that the current southern trophy bluefin subquota of 2.8 mt represents approximately 17-
30 individual fish, impacts are expected to be minor.
Under Alternative E 3b, the preferred alternative, a portion of the trophy south subquota would be allocated specifically for the Gulf of Mexico. Specifically, the trophy subquota would be divided as 33% each to the northern area, the southern area outside the Gulf of Mexico, and the Gulf of Mexico. At the current average trophy fish weight, this would allow annually up to 8 trophy bluefin to be landed in each of the three areas.
There would be minor, short-term, direct, beneficial social impacts to a small number of vessels in the Gulf of Mexico given the small amount of fish that would be allowed to be landed (as well as indirect beneficial economic impacts for charter vessels), but the perception of greater fairness among southern area participants may result in indirect, longer-term, beneficial, social impacts. There would be minor, short-term, direct and indirect adverse social impacts (and economic impacts for charter vessels) for those outside the Gulf of Mexico as the perceived opportunity to land a trophy bluefin may be diminished.
Alternative E 4--Change Start Date of Purse Seine Category to June 1
Under Alternative E 4a, the No Action alternative, there would be no change to the start date of the Purse Seine category fishery, which is currently set at July 15. Economic impacts would be expected to be direct and neutral to adverse depending on availability of schools of bluefin for purse seine operators to decide to make a set on. That is, currently, if conditions would warrant making a set (e.g., based on information from spotter pilots) before July 15, purse seine operators would not be able to fish and would miss the economic opportunity to land and sell bluefin while the other commercial bluefin fisheries are open. Social impacts would be minor and neutral to adverse for purse seine fishery participants and would be minor and neutral to beneficial for fishermen in other categories due to reduced actual or perceived gear conflict from June 1 through July 14.
Under the preferred alternative, E 4b, extending the range of potential start dates for the Purse Seine fishery, beginning fishing on June 1, would allow NMFS more flexibility in determining when the appropriate start date should be set, and the potential for increased flexibility for purse seine operators to choose when to fish, based on availability of schools of appropriate-sized bluefin and market price. Economic impacts would be expected to be direct and neutral to moderate and beneficial depending on when determines the start date should be, and depending upon the availability of schools of bluefin for purse seine operators to decide to make a set on and market conditions. Social impacts would be minor and neutral to beneficial for purse seine fishery participants and would be minor and neutral to adverse for fishermen in other categories due to increased actual or perceived gear conflict from June 1 through July 14. In 2012, the average price per pound was $12.46, although the price likely reflects the relatively small amount of purse seine-caught bluefin on the market that year. In 2009, the last year in which there were Atlantic purse seine bluefin landings, the average price per pound was $5.96. NMFS minimized the potential economic impacts of this alternative by altering this measure from that which was proposed, to remove the default start date of June 1, which was of concern to handgear fishermen, but instead will finalize an expanded range of potential start dates to the Purse Seine fishery.
Alternative E 5--Rule Regarding Permit Category Changes
Under the No Action alternative, E 5a, there would be no changes made to current regulations regarding the ability of an applicant to make a correction to their open-access HMS permit category. The current regulations prohibit a vessel issued an open-access Atlantic Tunas or an HMS permit from changing the category of the permit after 10 calendar days from the date of issuance. This No Action alternative is administrative in nature, and therefore the social and economic impacts associated with it would be neutral for most applicants. However, for those applicants who discover their permit category may not allow the vessel to fish in a manner as intended, they may experience moderate adverse social and economic impacts at an individual level. For example, if a commercial fishermen obtained an Angling category permit (recreational) versus a General category permit (commercial) and did not discover the error until after the 10 calendar day window, their vessel would not be allowed to fish commercially for Atlantic tunas for the remainder of that year. Likewise, if recreational fishermen obtained a General category permit (commercial) versus an Angling category permit (commercial) and did not discover the error until after the 10 calendar window, their vessel would not be allowed to fish under the recreational rules and regulations for the remainder of the year. These two examples demonstrate the potential in lost fishing opportunities as a result of the No Action alternative.
Under the preferred alternative, E 5b, NMFS would allow category changes to an open-access HMS permit for a time period greater than 10 calendar days (e.g., 30, 45, or 60 days), provided the vessel has not fished as verified via landings data. This alternative would result in neutral social and economic impacts for most applicants as there are approximately 20 requests annually that would fall outside the 10 calendar day window. However, those applicants who discover their permit category may not allow the vessel to fish in a manner as intended (~20 per year), would
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experience moderate beneficial social and economic impacts provided they discover the error in the liberalized window (e.g., 30, 45, or 60 days). Using the two examples illustrated above and assuming no bluefin were caught in either case, each applicant would be allowed to correct their open-access HMS permit category to match their intended fishing practices for the remainder of that year, thereby mitigating the potential of lost fishing opportunities, as well as potential income.
Alternative E 6--North Atlantic Albacore Tuna Quota
Alternative E 6a, the No Action alternative, maintains the current northern albacore tuna quota. In the last 10 years, U.S. catches reached or exceeded the current U.S. initial quota (527 mt for 2013) in 2004 with 646 mt and in 2007 with 532 mt. However, catches have been less than the adjusted U.S. quotas (currently about 659 mt) for the last several years. Under the No Action alternative, there is no domestic mechanism to limit annual catches of northern albacore beyond the current requirements for Atlantic tunas or HMS vessel permits, authorized gear, observers/logbooks, and time/area closures. Therefore, expected short-term, direct economic impacts and social impacts under the No Action alternative would be neutral. If future overharvests result in the United States being out of compliance with the ICCAT recommendation, the United States would need to put control measures in place and neutral to adverse longer-term direct economic and social impacts could occur if the resulting annual quota needs to be reduced by the amount of the overharvest.
If, under preferred alternative, E 6b, NMFS implements a domestic quota for northern albacore and recent catch levels continue, and the U.S. quota (including the adjusted quota) recommended by ICCAT is maintained at the current amount, economic and social impacts would not be expected. However, if either the U.S. quota is reduced as part of a new TAC recommendation or catches increase above the current adjusted U.S. quota, there could be adverse impacts resulting from reduced future fishing opportunities and ex-vessel revenues. At an average price of $1.29/lb for commercially-landed albacore in 2011, a reduction of one mt would represent approximately $2,800 under a full quota use situation. Actual impacts would largely depend on the availability of northern albacore and the ability of fishery participants to harvest the quota. In addition, any adverse social and economic impacts of exceeding the TAC, which was adopted as part of the overall ICCAT northern albacore rebuilding program, would be reduced and, in the long term, may be beneficial for fishermen as the stock grows. There may be slight differences in the level of economic and social impacts experienced by the specific individuals of the northern albacore fishery, as well as by participants within a particular fishery sector.
NMFS has determined that Amendment 7 does not require reinitiation of consultation and that, per ESA section 7(d), it would not result in an ``irreversible or irretrievable commitment of resources'' that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures during the ongoing consultations.
On March 31, 2014, NMFS reinitiated consultation for the pelagic longline fishery. That fishery operates consistent with a 2004 Biological Opinion (BiOp) that concluded that the Atlantic pelagic longline fishery was not likely to jeopardize the continued existence of loggerhead, green, hawksbill, Kemp's ridley or olive ridley sea turtles but was likely to jeopardize the continued existence of leatherback sea turtles. NMFS implemented the Reasonable and Prudent Alternatives (RPAs) and Terms and Conditions specified in that BiOp (e.g., hook type, bait type, mandatory workshops). On March 31, 2014, NMFS requested reinitiation of consultation of the pelagic longline BiOp due to new information on mortality rates and total mortality estimates for leatherback turtles that exceed those specified in the RPAs, changes in information about leatherback and loggerhead populations, and new information on sea turtle mortality. While the mortality rate measure needs to be re-evaluated, this does not affect the overall ability of the RPAs to avoid jeopardy during the reinitiation.
NMFS is continuing to implement these RPAs during the ongoing consultation and has previously determined that ongoing operations in compliance with that BiOp are consistent with sections 7(a)(2) and 7(d) of the ESA.
Implementation of this final rule will not affect NMFS' ability to comply with the RPAs and RPMs in the 2004 BiOp, and will not trigger additional ESA requirements or considerations pertaining to the pelagic longline fishery and listed sea turtles and other species covered in the 2004 BiOp. Amendment 7 measures (including those that could reduce fishing effort) implemented in conjunction with current measures in the HMS fisheries would not change the determination that ongoing operations are unlikely to jeopardize the continued existence of the right whale, humpback, fin, or sperm whales, or Kemp's ridley, green, loggerhead, hawksbill or leatherback sea turtles. A complete discussion of the effect of the alternatives applicable to the Longline category on quota allocation and fishing effort is located in Section 4.1.6.1 of the FEIS.
On July 3, 2014, NMFS published a final rule to list four Distinct Populations Segments (DPS) of scalloped hammerhead sharks (Sphyrna lewini): Two as threatened (Central and Southwest Atlantic DPS and Indo-West Pacific DPS) and two as endangered (Eastern Atlantic DPS and Eastern Pacific DPS) under the Endangered Species Act (79 FR 38214). The Central and Southwest Atlantic DPS consists primarily of the population found in the Caribbean Sea and off the Atlantic coast of Central and South America (includes all waters of the Caribbean Sea, including the U.S. EEZ off Puerto Rico and the U.S. Virgin Islands).
On August 27, 2014, NMFS published a final rule to list the following 20 coral species as threatened: Five in the Caribbean including Florida and the Gulf of Mexico (Dendrogyra cylindrus, Orbicella annularis, Orbicella faveolata, Orbicella franksi, and Mycetophyllia ferox); and 15 in the Indo-Pacific (Acropora globiceps, Acropora jacquelineae, Acropora lokani, Acropora pharaonis, Acropora retusa, Acropora rudis, Acropora speciosa, Acropora tenella, Anacropora spinosa, Euphyllia paradivisa, Isopora crateriformis, Montipora australiensis, Pavona diffluens, Porites napopora, and Seriatopora aculeata). Additionally, in that August 2014 rule, two species that had been previously listed as threatened (Acropora cervicornis and Acropora palmata) in the Caribbean were found to still warrant listing as threatened.
The Central and Southwest Atlantic DPS of scalloped hammerhead sharks and seven Caribbean species of corals occur within the management area of Atlantic Highly Migratory Species (HMS) commercial and recreational fisheries which are managed by NMFS's Office of Sustainable Fisheries, HMS Management Division. Following these listings and based on the information included in an October 2014 biological evaluation, NMFS determined that certain authorized Atlantic HMS gear types may affect and are likely to adversely affect scalloped hammerhead sharks within the Central and
Page 71585
Southwest Atlantic DPS. Additionally, certain authorized Atlantic HMS gear types may affect, but are not likely to adversely affect, threatened Caribbean coral species. Thus, on October 30, 2014, NMFS requested reinitiation of ESA section 7 consultation for the 2006 Consolidated Atlantic HMS Fishery Management Plan activities, as amended and as previously consulted on in the 2001 Atlantic HMS biological opinion and the 2012 Shark and Smoothhound biological opinion, to assess potential adverse effects of certain gear types on the Central and Southwest DPS of scalloped hammerhead sharks and seven threatened coral species.
With regard to the new listings, per ESA section 7(d), NMFS has determined that Amendment 7 would not result in an ``irreversible or irretrievable commitment of resources'' that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures during the ongoing consultations. There are scalloped hammerhead shark interactions in the Central and Southwest Atlantic DPS, based on Fisheries Logbook System and Pelagic Observer Program data. The number of interactions is consistent with the conclusion that scalloped hammerhead sharks in the Central and Southwest Atlantic DPS are rarely targeted and that recreational fishing results in catch and release of low numbers of under-sized scalloped hammerhead sharks. Additionally, Atlantic HMS gear types may affect but are not likely to adversely affect, threatened Caribbean coral species.
This final rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by OMB under control numbers 0648-0372, 0648-0328, and 0648-
0677. Public reporting burden for these collections of information are estimated to average, as follows:
1. Purse Seine VMS hail out & in, OMB # 0648-0372, (5 min/
response);
2. Pelagic Longline (PLL) and Purse Seine (PS) VMS catch reports and verification, OMB # 0648-0372, (5 min/response for PLL; 15 min for PS)
3. Electronic Monitoring of Pelagic Longline Vessels, Data Retrieval, OMB # 0648-0328, (5 min/response)
4. General, Harpoon, and Charter/Headboat reporting via automated systems, OMB # 0648-0328, (5 min/response)
5. Pelagic Longline appeal of Performance Metrics, OMB # 0648-0677, (2 hr/response)
6. Pelagic Longline appeal of Quota Shares, OMB # 0648-0677, (2 hr/
response)
7. Pelagic Longline and Purse Seine IBQ Trade Execution and Tracking, Transfer of Allocation, OMB # 0648-0677, (2 min/response)
8. IBQ Trade Execution and Tracking, Online Account Initial Application, OMB # 0648-0677, (10 min/response)
9. IBQ Trade Execution and Tracking, Online Account Renewal Application, OMB # 0648-0677, (10 min/response)
Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as ``small entity compliance guides.'' The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. Copies of this final rule and the compliance guide are available upon request from NMFS (see ADDRESSES). Copies of the compliance guide will also be available from the Highly Migratory Species Management Division Web site at http://www.nmfs.noaa.gov/sfa/hms/.
This final rule does not conflict, duplicate, or overlap with other relevant Federal rules (5 U.S.C. 603(b)(5)). Fishermen, dealers, and managers in these fisheries must comply with a number of international agreements, domestic laws, and other FMPs. These include, but are not limited to, the Magnuson-Stevens Act, the ACTA, the High Seas Fishing Compliance Act, the Marine Mammal Protection Act, the Endangered Species Act, the National Environmental Policy Act, the Paperwork Reduction Act, and the Coastal Zone Management Act. We do not believe that the new regulations duplicate, overlap, or conflict with any relevant regulations, Federal or otherwise.
The State of Louisiana objected to the consistency determination required by 15 CFR 930.39, and stated that the potential biological benefits of the Amendment are minimal compared to the potentially large socio-economic impacts for pelagic longline vessels, especially those related to the IBQ program. The State of Louisiana also disagreed with the conclusion that the proposed activity is consistent to the maximum extent practicable with the LCRP, claiming that the determination lacks information sufficient to support the consistency statement ``as required by federal regulations at 15 CFR 930.39(a) and as identified in the enforceable policies of the Louisiana Administrative Code, Title 43, Part I.''
The State of Louisiana states that Amendment 7 is inconsistent with three, and is not fully consistent with six, of the enforceable policies of the Louisiana Administrative Code and states that Amendment 7 lacks comprehensive data and information sufficient to support the consistency statement. The specific factors of section 701 of the Louisiana Administrative Code that the State of Louisiana states are not fully consistent with Amendment 7 are Section 701 F(5), availability of feasible alternative sites or methods of implementing the use; F(7) economic need for use and extent of impacts of use on economy of locality; F(11) extent of impacts on existing and traditional uses of the area and on future uses for which the area is suited; F(16) proximity to and extent of impacts on public lands or works, or historic, recreational, or cultural resources; F(17) extent of impacts on navigation, fishing, public access, and recreational opportunities; and F(19) extent of long term benefit or adverse impacts.
After reviewing these concerns and, in accordance with the Coastal Zone Management Act (CZMA) regulations at 15 CFR 930.43(d)(2), NMFS has concluded that the proposed action is consistent to the maximum extent practicable with the enforceable policies of the LCRP, as noted below, though the State of Louisiana objects. Specifics on this conclusion are as follows.
Regarding factor F(5), there are no alternative sites for implementing the use of pelagic longline fishing within the Gulf of Mexico--pelagic longline fishing already occurs within all available federal and state waters. As noted below, alternative methods of reducing dead discards that were analyzed included group or regional quotas and would have had more adverse impacts than the preferred alternative. Regarding factor F(7), the State of Louisiana correctly states that pelagic longline fishing is an important economic activity contributing to the Louisiana economy. Pelagic longline fishing will continue to be authorized within the Gulf of Mexico, and valuable target species such as swordfish and yellowfin tuna are abundant in the region such that, should pelagic
Page 71586
longline vessels continue to offload to Louisiana-based federal dealers, pelagic longline fishing will continue to contribute to the Louisiana economy.
Regarding factor F(11), as stated above, pelagic longline fishing will continue to be authorized within the Gulf of Mexico such that existing and traditional uses as well as future uses of the area will continue. Therefore, NMFS believes that the proposed action is consistent to the maximum extent practicable with the enforceable policies of the LCRP.
Regarding factor F(16), productive fishing grounds will still be available for pelagic longline fishing within the Gulf of Mexico even with the preferred alternative that would implement the Modified Spring Gulf of Mexico GRAs. As noted in Chapter 4 of the Final Environmental Impact Statement (FEIS), with redistribution of effort, NMFS anticipates a reduction of approximately $281,000 in ex-vessel value from implementing the preferred alternative, which, while approximately 3 percent of the Gulf of Mexico pelagic longline fleet total ex-vessel value of $9.74 million, means that roughly 97 percent of ex-vessel value within the Gulf of Mexico will continue to contribute to the State of Louisiana economy. Therefore, NMFS believes that the proposed action is consistent to the maximum extent practicable with the enforceable policies of the LCRP.
Regarding factor F(17), the preferred alternative to implement the Modified Spring Gulf of Mexico GRA would restrict access to two additional areas within the Gulf of Mexico where bluefin bycatch has consistently occurred from 2006-2012 and which comprise approximately 11 percent of the area. In combination with the DeSoto Canyon pelagic longline closed areas, which were closed to reduce bycatch of juvenile swordfish and overfished billfish and coastal sharks, and other applicable HMS pelagic longline closed areas, approximately 25 percent of the Gulf of Mexico is restricted to pelagic longline gear. While these measures impact pelagic longline fishing, other fishing activities, navigation, public access, and recreational opportunities would remain unaffected. Therefore, NMFS believes that the proposed action is consistent to the maximum extent practicable with the enforceable policies of the LCRP.
Regarding factor F(19), implementation of Amendment 7 measures would provide different benefits and adverse impacts for the pelagic longline fleet within the Gulf of Mexico depending on the measure. The preferred Codified and Annual Reallocation alternatives would provide short and long term benefits to the pelagic longline fishery through an increased codified quota of 62 mt in addition to potential for additional quota as a result of the annual reallocation alternative. Implementation of IBQs, as noted above, would provide approximately 75 percent of pelagic longline vessels an allocation sufficient for reported bluefin interactions. A portion of Louisiana homeported vessels would likely need to lease additional bluefin quota or modify fishing behavior to reduce bluefin interactions, although implementation of the Modified Spring Gulf of Mexico GRAs would limit access to areas of high bluefin interactions, thereby likely reducing bluefin interactions without additional changes by fishermen. Therefore, NMFS believes that the proposed action is consistent to the maximum extent practicable with the enforceable policies of the LCRP.
The State of Louisiana also states that Amendment 7 is inconsistent with the enforceable policies of the Lousiana Administrative Code's Section 701G (2), adverse economic impacts on the locality of the used and affected governmental bodies; (6), adverse disruption of existing social patterns; and (10), adverse effects of cumulative impacts.
Regarding factors G(2) and (6), the implementation of Amendment 7 measures would provide different benefits and adverse impacts for the pelagic longline fleet within the Gulf of Mexico depending on the measure. While some impacts are expected to be short-and long-term moderate adverse impacts, NMFS has balanced the overall impacts to the pelagic longline fleet as well as other user groups to achieve Amendment 7 objectives in a fair and appropriate manner, and as described in Chapters 5, 7, and 8 of the FEIS, has minimized adverse social and economic impacts to the extent practicable, consistent with the National Environmental Policy Act, Regulatory Flexibility Act, and CZMA. Providing additional codified quota as well as the potential of additional quota through annual reallocation, in combination with GRAs where bluefin interactions have been historically high and IBQs that provide 75 percent of the fleet with sufficient quota to continue current fishing practices- balances the need to reduce dead discards with providing fishing opportunities to all user groups. The adverse impacts to 13 Louisiana homeported vessels that would likely need to lease approximately 7 metric tons of bluefin are warranted given the long-term benefits to the overall pelagic longline fleet under the combination of all preferred alternatives.
Regarding G(10), the Gulf of Mexico pelagic longline fleet is a heavily regulated fishery and has experienced several natural and man-
made adverse impacts as well as regulatory changes in recent years. Several regulatory measures have been implemented to reduce bycatch of threatened or endangered species (i.e., circle hooks in 2004) and overfished species such as bluefin (e.g., weak hooks in 2011) or coastal sharks (i.e., sandbar sharks in 2008 and scalloped hammerhead sharks in 2013). These measures often have short term adverse impacts but are ultimately needed for the sustainability of the fishery in the long term. In each of these actions, NMFS has minimized adverse impacts to the extent practicable while still meeting conservation objectives, consistent with applicable law.
Furthermore, the FEIS analysis demonstrates that NMFS utilized many of the factors cited by the State of Louisiana as lacking in NMFS's evaluation. Specifically, NMFS used the best available logbook, dealer, and observer data, conducted vessel-specific analyses for preferred alternatives on gear restricted areas and IBQ measures, and relied on relevant recent scientific information. NMFS also explored the availability of alternative methods of achieving the Amendment 7 objectives, and considered the economic impacts, as well as the long term benefits of the measures. The alternative methods to reduce dead discards of no action or group or regional quotas would have more adverse impacts and be less effective in achieving Amendment 7 objectives to reduce dead discards and maximize fishing opportunity. The design of the IBQ management measures and other aspects of Amendment 7 minimize the significant adverse economic impacts, disruption of social patterns, and adverse cumulative impacts, to the extent practicable, relative to other methods analyzed while also meeting Amendment 7 objectives.
As explained in Chapter 5 of the FEISit includes limited state specific analyses of the impacts of the preferred codified and IBQ measures. Due to the nature of the bluefin fisheries (widely distributed and highly variable), the FEIS analyses are principally at a fishery-wide, or permit category level. The IBQ analyses show that approximately 75 percent of the pelagic longline fleet would receive an initial allocation that would be consistent with their historical reported landings such that they would be able to continue to
Page 71587
operate without having to acquire additional quota. Under the preferred 137 mt alternative (see Table 5.26), the total additional amount of quota needed to continue fishing at historical levels is estimated to total 51.3 metric tons across all the vessels needing additional quota. Many vessels, however, would not need their full initial IBQ allocation to continue fishing at their historic levels. The total of this surplus quota across all vessels likely not fully use their initial IBQ allocation is estimated to be 82.8 mt in the context of the preferred 137 mt alternative. The total surplus of quota exceeds the total amount needed under the preferred 137 mt alternative, so the transfer of quota among pelagic longline vessels should reduce potential economic impacts of the IBQ program.
The states with the largest amount of additional IBQ needed include Louisiana, New York, and Florida, while vessels with home ports in Florida, New Jersey, and Louisiana would have the most surplus quota available to trade. Specific to pelagic longline vessels homeported in Louisiana, NMFS estimates that approximately 12 vessels would receive an initial allocation either at or above their historical reported landings and would have approximately 10.4 mt of surplus allocation. Conversely, approximately 13 vessels would need additional quota of 17.4 mt to maintain current fishing practices. Therefore, the total quota need among State of Louisiana homeported vessels would be 7 mt. Vessels may change their fishing practices such that the amount of quota they need is reduced or they may be able to lease quota from other vessels with surplus quota. Therefore, the adverse impacts to State of Louisiana homeported vessels would be minimized to the extent practicable while still meeting the objectives of Amendment 7.
List of Subjects
Reporting and recordkeeping requirements.
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.
Dated: November 21, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
For the reasons set out in the preamble, 15 CFR part 902 and 50 CFR part 635 are amended as follows:
Title 15--Commerce and Foreign Trade
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
0
1. The authority citation for part 902 continues to read as follows:
Authority: 44 U.S.C. 350 et seq.
0
2. In Sec. 902.1, the table in paragraph (b) under 50 CFR is amended by adding new entries in numerical order for Sec. Sec. 635.5(a)(4), 635.9(e), 635.14(d), 635.15(a)(2), (c)(2) and (k)(4), and 635.69(a) and (e)(4) to read as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
Current OMB control
CFR Part or section where the information number (all numbers
collection requirement is located begin with 0648-)
------------------------------------------------------------------------
* * * * *
50 CFR: .......................
* * * * *
635.5(a)(4)................................ -0328
* * * * *
635.9(e)................................... -0328
635.14(d).................................. -0677
635.15(a)(2), (c)(2) and (k)(4)............ -0677
* * * * *
635.69(a) and (e)(4)....................... -0372
* * * * *
------------------------------------------------------------------------
Title 50--Wildlife and Fisheries
PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES
0
3. The authority citation for part 635 continues to read as follows:
Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.
0
4. In Sec. 635.2:
0
-
Revise the definitions of ``Bottom longline,'' ``Green-stick gear,'' and ``Pelagic longline,'' and
0
-
Add the definitions of ``Cape Hatteras gear restricted area,'' ``In transit,'' ``Spring Gulf of Mexico gear restricted area,'' and ``Transiting'' in alphabetical order.
The revisions and additions read as follows:
Sec. 635.2 Definitions.
* * * * *
Bottom longline means a longline that is deployed with enough weights and/or anchors to maintain contact with the ocean bottom. For the purposes of this part, a vessel is considered to have bottom longline gear on board when a power-operated longline hauler, a mainline, weights and/or anchors capable of maintaining contact between the mainline and the ocean bottom, and leaders (gangions) with hooks are on board. Removal of any of these elements constitutes removal of bottom longline gear. Bottom longline vessels may have a limited number of floats and/or high flyers onboard for the purposes of marking the location of the gear but removal of these floats does not constitute removal of bottom longline gear.
* * * * *
Cape Hatteras gear restricted area means the area within the Atlantic Ocean bounded by straight lines connecting the following coordinates in the order stated: 34deg50' N. lat., 75deg10' W. long.; 35deg40' N. lat., 75deg10' W. long.; 35deg40' N. lat., 75deg00' W. long.; 37deg10' N. lat., 75deg00' W. long.; 37deg10' N. lat., 74deg20' W. long.; 34deg30' N. lat., 74deg20' W. long.; 34deg50' N. lat., 75deg00' W. long; 34deg50' N. lat., 75deg10' W.
* * * * *
Green-stick gear means an actively trolled mainline attached to a vessel and elevated or suspended above the surface of the water with no more than 10 hooks or gangions attached to the mainline. The suspended line, attached gangions and/or hooks, and catch may be retrieved collectively by hand or mechanical means. Green-stick does not constitute a pelagic longline or a bottom longline as defined in this section.
In transit means non-stop progression through an area without any fishing activity occurring.
* * * * *
Pelagic longline means a longline that is suspended by floats in the water column and that is not fixed to or in contact with the ocean bottom. For the purposes of this part, a vessel is considered to have pelagic longline gear on board when a power-operated longline hauler, a mainline, floats capable of supporting the mainline, and leaders (gangions) with hooks are on
Page 71588
board. Removal of any of these elements constitutes removal of pelagic longline gear.
* * * * *
Spring Gulf of Mexico gear restricted area means two areas within the Gulf of Mexico described here. The first area is bounded by straight lines connecting the following coordinates in the order stated: 26deg30' N. lat., 94deg40' W. long.; 27deg30' N. lat., 94deg40' W. long.; 27deg30' N. lat., 89deg W. long.; 26deg30' N. lat., 89deg W. long.; 26deg30' N. lat., 94deg40' W. long. The second area is bounded by straight lines connecting the following coordinates in the order stated: 27deg40' N. lat., 88deg W. long.; 28deg N. lat., 88deg W. long.; 28deg N. lat., 86deg W. long.; 27deg40' N. lat., 86deg W. long.; 27deg40'N. lat., 88deg W. long.
* * * * *
Transiting means progressing through an area without any fishing activity occurring.
* * * * *
0
5. In Sec. 635.4 revise paragraphs (j)(3) and (o)(4) to read as follows:
Sec. 635.4 Permits and fees.
* * * * *
(j) * * *
(3) A vessel owner issued an Atlantic Tunas permit in the General, Harpoon, or Trap category or an Atlantic HMS permit in the Angling or Charter/Headboat category under paragraph (b), (c), or (d) of this section may change the category of the vessel permit once within 45 calendar days of the date of issuance of the permit, provided the vessel has not landed bluefin tuna during those 45 calendar days as verified by NMFS via landings data. After 45 calendar days from the date of issuance of the permit, the vessel owner may not change the permit category until the following fishing season.
* * * * *
(o) * * *
(4) The owner of a vessel issued an HMS Commercial Caribbean Small Boat permit may fish for, take, retain, or possess only BAYS tunas, Atlantic swordfish, and Atlantic sharks, subject to the trip limits specified at Sec. 635.24.
* * * * *
0
6. In Sec. 635.5:
0
-
Paragraph (a)(3) is revised;
0
-
Paragraph (a)(4) is redesignated as paragraph (a)(5);
0
-
New paragraphs (a)(4) and (a)(6) are added;
0
-
Paragraph (b)(2)(i)(A) is revised;
0
-
Paragraph (b)(2)(iii) is added; and
0
-
Paragraph (c)(1) is revised.
The revisions and additions read as follows:
Sec. 635.5 Recordkeeping and reporting.
* * * * *
(a) * * *
(3) Bluefin tuna landed by a commercial vessel and not sold. If a person who catches and lands a large medium or giant bluefin tuna from a vessel issued a permit in any of the commercial categories for Atlantic tunas does not sell or otherwise transfer the bluefin tuna to a dealer who has a dealer permit for Atlantic tunas, the person must contact a NMFS enforcement agent, at a number designated by NMFS, immediately upon landing such bluefin tuna, provide the information needed for the reports required under paragraph (b)(2)(i) of this section, and, if requested, make the tuna available so that a NMFS enforcement agent or authorized officer may inspect the fish and attach a tag to it. Alternatively, such reporting requirement may be fulfilled if a dealer who has a dealer permit for Atlantic tunas affixes a dealer tag as required under paragraph (b)(2)(ii) of this section and reports the bluefin tuna as being landed but not sold on the reports required under paragraph (b)(2)(i) of this section. If a vessel is placed on a trailer, the person must contact a NMFS enforcement agent, or the bluefin tuna must have a dealer tag affixed to it by a permitted Atlantic tunas dealer, immediately upon the vessel being removed from the water. All bluefin tuna landed but not sold will be applied to the quota category according to the permit category of the vessel from which it was landed.
(4) Bluefin tuna discarded dead, or landed by a commercial vessel and sold. The owner of a vessel that has been permitted or that is required to be permitted under Sec. 635.4 in the Atlantic Tunas General or Harpoon categories, or has been permitted or is required to be permitted under Sec. 635.4 under the HMS Charter/Headboat category and fishing under the General category quotas and daily limits as specified at Sec. 635.23(c), must report all discards and/or landings of bluefin tuna through the NMFS electronic catch reporting system within 24 hours of the landings or the end of trip. Such reports may be made by either calling a phone number designated by NMFS or by submitting the required information online to a Web site designated by NMFS. The owner of a vessel that has been permitted in a different bluefin tuna category must report as specified elsewhere in this section (Sec. 635.5).
* * * * *
(6) Atlantic Tunas permitted vessels. The owner or operator of an Atlantic Tunas vessel fishing with pelagic longline gear or an Atlantic Tunas Purse Seine category participant is subject to the VMS reporting requirements under Sec. 635.69(e)(4) and the applicable Individual Bluefin Quota (IBQ) Program and/or leasing requirements under Sec. 635.15(a)(2).
(b) * * *
(2) * * *
(i) * * *
(A) Landing reports. Each dealer with a valid Atlantic Tunas dealer permit issued under Sec. 635.4 must submit the landing reports to NMFS for each bluefin received from a U.S. fishing vessel. Such reports must be submitted electronically by sending a facsimile to a number designated by NMFS not later than 24 hours after receipt of the bluefin. Landing reports must include the name and permit number of the vessel that landed the bluefin and other information regarding the catch as instructed by NMFS. Landing reports submitted via facsimile must be signed by the permitted vessel owner or operator immediately upon transfer of the bluefin. When purchasing bluefin tuna from eligible IBQ Program participants or Atlantic Tunas Purse Seine category participants, permitted Atlantic Tunas dealers must also enter landing reports into the electronic IBQ System established under 635.15, not later than 24 hours after receipt of the bluefin. The vessel owner or operator must confirm that the IBQ System landing report information is accurate by entering a unique PIN when the dealer report is submitted. The dealer must inspect the vessel's permit to verify that it is a commercial category, the required vessel name and permit number as listed on the permit are correctly recorded on the landing report, and that the vessel permit has not expired.
* * * * *
(iii) Dealers must comply with dealer requirements related to the Individual Bluefin Quota Program under Sec. 635.15(a)(4)(iii).
* * * * *
(c) * * *
(1) Bluefin tuna. The owner of a vessel permitted, or required to be permitted in the Atlantic HMS Angling or Atlantic HMS Charter/
Headboat category under Sec. 635.4 must report the catch of all bluefin tuna discarded dead and/or retained under the Angling category quota designated at Sec. 635.27(a) through the NMFS electronic catch reporting system within 24 hours of the landing.
* * * * *
0
7. Add Sec. 635.9 to subpart A--with paragraphs (b)(2)(ii) and (e)(1) effective June 1, 2015--to read as follows:
Page 71589
Sec. 635.9 Electronic monitoring.
(a) Applicability. An owner or operator of a commercial vessel permitted or required to be permitted in the Atlantic Tunas Longline category under Sec. 635.4, and that has pelagic longline gear on board, is required to have installed, operate, and maintain an electronic monitoring (EM) system on the vessel, as specified in this section. Vessel owner or operators can contact NMFS or a NMFS-approved contractor for more details on procuring an EM system.
(b) EM Installation. (1) NMFS or a NMFS-approved contractor will assess individual Atlantic Tunas Longline permitted vessels that are currently eligible for IBQ share, install and test all EM systems; provide training to vessel owners or operators or their designees; and develop in consultation with vessel owners or operators or their designees required operational plans (Vessel Monitoring Plan or VMP) for the EM systems, as described in paragraph (e)(2) of this section.
(2) Vessel owners or operators, as instructed by NMFS, will be required to coordinate with NMFS or a NMFS-approved contractor to schedule a date or range of dates for EM installation, and/or may be required to steam to a designated port for EM installation on NMFS-
determined dates. NMFS may require vessel owners to make minor modifications to vessel equipment to facilitate installation and operation of the EM system, such as, but not limited to, installation of a fitting for the pressure side of the line of the drum hydraulic system, a power supply for the EM system and power switches/
connections, additional lighting, and/or a mounting structure(s) for installation of the camera(s). EM installation must be completed by June 1, 2015 in order to fish with pelagic longline gear after that date.
(i) Certificate of Installation. After confirming that an EM system that meets the requirements of this section is properly installed, the system has been tested, and training and a required operational plan (VMP) are completed, NMFS or the NMFS-approved contractor will provide a Certificate of Installation to the vessel owner or operator.
(ii) Vessels described under paragraph (a) of this section may not depart on a fishing trip without having a valid Certificate of Installation and VMP on board.
(c) EM System Components. The EM system installed by the NMFS-
approved contractor must be comprised of video camera(s), recording equipment, and other related equipment and must have the following components and capabilities:
(1) Video camera(s). (i) Video cameras must be mounted and placed so as to provide clear, unobstructed views of the area(s) where the pelagic longline gear is retrieved and of catch being removed from hooks prior to being placed in the hold or discarded. There must be lighting sufficient to illuminate clearly individual fish.
(ii) Video camera(s) must be in sufficient numbers (a minimum of two and up to four), with sufficient resolution (no less than 720p (1280 x 720)) for NMFS, the USCG, and their authorized officers and designees, or any individual authorized by NMFS to determine the number and species of fish harvested. To obtain the views described in paragraph (c)(1)(i), at least one camera must be mounted to record close-up images of fish being retained on the deck at the haulback station, and at least one camera must be mounted to record activity at the waterline along the side of the vessel at the haul back station. NMFS or the NMFS-approved contractor will determine if more cameras are needed.
(iii) The EM system must be capable of initiating video recording at the time gear retrieval starts. It must record all periods of time when the gear is being retrieved and catch is removed from the hooks until it is placed in the hold or discarded.
(2) GPS receiver. A GPS receiver is required to produce output, which includes location coordinates, velocity, and heading data, and is directly logged continuously by the control box. The GPS receiver must be installed and remain in a location where it receives a strong signal continuously.
(3) Hydraulic and drum rotation sensors. Hydraulic sensors are required to continuously monitor the hydraulic pressure and a drum rotation sensor must continuously monitor drum rotations.
(4) EM control box. The system must include a control box that receives and stores the raw data provided by the sensors and cameras. The control box must contain removable hard drives and storage systems adequate for a trip lasting 30 days.
(5) EM systems monitor. A wheelhouse monitor must provide a graphical user interface for harvester to monitor the state and performance of the control box and provide information on the current date and time synchronized via GPS, GPS coordinates, current hydraulic pressure reading, presence of a data disk, percentage used of the data disk, and video recording status.
(6) The EM system must have software that enables the system to be tested for functionality and that records the outcome of the tests.
(d) Data maintenance, storage, and viewing. The EM system must have the capacity to allow NMFS, the USCG, and their authorized officers and designees, or any NMFS-approved contractor to observe the live video on the EM systems monitor as described in paragraph (c)(5) of this section. Vessel owner or operators must provide access to the system, including the data upon request.
(e) Operation. (1) Unless otherwise authorized by NMFS in writing, a vessel described in paragraph (a) of this section must collect video and sensor data in accordance with the requirements in this section, in order to fish with pelagic longline gear.
(2) Vessel monitoring plan. The vessel owner or operator must have available onboard a written VMP for its system, which is an operational plan developed by the NMFS-approved contractor containing the standardized procedures relating to the vessel's EM system. VMPs may include, but are not limited to, information on the locations of EM system components; contact information for technical support; instructions on how to conduct a pre-trip system test; instructions on how to verify proper system functions; location(s) on deck where fish retrieval should occur to remain in view of the cameras; procedures for how to manage EM system hard drives; catch handling procedures; a size reference for facilitating determination of fish size; periodic checks of the monitor during the retrieval of gear to verify proper functioning; reporting procedures. The VMP should minimize to the extent practicable any impact on the current operating procedures of the vessel, and should help ensure the safety of the crew.
(3) Handling of fish and duties of care. The vessel owner or operator must ensure that all fish that are caught, even those that are released, are handled in a manner that enables the video system to record such fish, and must ensure that all handling and retention of bluefin tuna occurs in accordance with relevant regulations and the operational procedures outlined in the VMP. The vessel owner or operator is responsible for ensuring the proper continuous functioning of the EM system, including that the EM system must remain powered on for the duration of each fishing trip from the time of departure to time of return; cameras must be cleaned routinely; and EM system components must not be tampered with.
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(4) Completion of trip. Within 48 hours of completing a fishing trip,, the vessel owner or operator must mail the removable EM system hard drive(s) containing all data to NMFS or NMFS-approved contractor, according to instructions provided by NMFS. The vessel owner or operator is responsible for using shipping materials suitable to protect the hard drives (e.g.,, bubble wrap), tracking the package, and including a self-addressed mailing label for the next port of call so replacement hard drives can be mailed back to the vessel owner or operator. Prior to departing on a subsequent trip, the vessel owner or operator must install a replacement EM system hard drive(s) to enable data collection and video recording. The vessel owner or operator is responsible for contacting NMFS or NMFS-approved contractor if they have requested but not received a replacement hard drive(s) and for informing NMFS or NMFS-approved contractor of any lapse in the hard drive management procedures described in the VMP.
(f) Failure to adequately monitor the gear and catch. The vessel owner or operator must monitor and maintain the EM system in working condition, which includes ensuring the proper continuous functioning of the EM system, cameras provide clear unobstructed views, and video picture quality is clear. Prior to departing on a trip with pelagic longline gear on board, the vessel owner or operator must test the functionality of the system and contact NMFS or the NMFS-approved contractor if the system is not functioning properly. In that case, or if NMFS independently determines that an EM system fails to meet the requirements of this section, the vessel cannot leave port unless and until NMFS provides written authorization. NMFS may grant such authorization after confirming that an EM system is functioning properly or other circumstances as determined by NMFS warrant authorization.
(g) Repair and replacement. If the vessel owner or operator becomes aware that the EM system on the vessel is not functioning properly at sea, the vessel owner or operator must contact NMFS and follow the instructions given. Such instructions may include but are not limited to returning to port until the EM system is repaired. Once in port, an EM system must be functioning properly (e.g., repaired, reinstalled, or replaced) consistent with the installation requirements in this section before the vessel can fish with pelagic longline gear.
Subpart B--Individual Vessel Measures
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8. Revise the subpart B heading to read as set forth above.
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9. Add Sec. 635.14 to subpart B to read as follows:
Sec. 635.14 Performance metrics.
(a) General. For purposes of Sec. 635.21(c)(3), NMFS will determine ``qualified'' vessels based on the performance metrics in paragraph (b) of this section. Specifically, NMFS will use fishery dependent and fishery independent data to evaluate vessel performance based on avoidance of bluefin tuna interactions while fishing with a pelagic longline gear and history of compliance with the observer and logbook requirements of Sec. Sec. 635.7 and 635.5, respectively.
(b) Calculation of performance metrics. In year one of implementation, NMFS will analyze the relevant data from the period 2006 to 2012 to determine a vessel's score and qualification status. Subsequently, NMFS will analyze available data from the most recent complete three consecutive year period to determine a vessel's score and qualification status. NMFS will communicate the results of the annual determination to individual permit holders in writing. NMFS may revise, through the framework procedures under Sec. 635.34, the scoring system to reflect changes in the fishery or ensure that it provides the desired incentives and meets the goals of this program. The process used to calculate the performance metrics are described fully in Amendment 7 to the 2006 Consolidated HMS FMP. The main metrics are summarized below.
(1) Bluefin tuna interactions performance metric. The basis for the bluefin tuna interactions performance metric is the ratio of the number of bluefin tuna interactions (i.e., the number of fish landed, discarded dead, and discarded alive) to the total weight of designated target species landings (in pounds). For the purposes of this section, the designated target species are: Swordfish; yellowfin, bigeye, albacore, and skipjack tunas; dolphin; wahoo; and porbeagle, shortfin mako, and thresher sharks. A relatively low bluefin tuna interaction to designated species ratio (`bluefin tuna ratio') indicates that the vessel has successfully avoided catching bluefin tuna while fishing with pelagic longline gear in the performance metric period.
(2) Observer compliance performance metric. NMFS will score vessels based on both the vessel owner's and the operator's compliance with the observer requirements outlined in Sec. 635.7 of this part and Sec. 600.746 of this chapter. In addition, the scoring system will consider the number of trips for which an individual vessel was selected to carry an observer, the number of trips actually observed, the reason why a particular trip was not observed, and other relevant observer information. The scoring system is neutral with respect to valid reasons that a vessel may have been selected by the observer program, but did not take an observer (e.g., no observer was available or the vessel was not fishing with pelagic longline gear). The scoring system is designed to weigh trips that were not observed due to noncompliance with the communication requirements more heavily than those not observed due to noncompliance with the safety and accommodation requirements. The scoring system is also designed to consider evidence of fishing activity that may have occurred without required communication or observer coverage.
(3) Logbook compliance performance metric. NMFS will score vessels based on both the vessel owner's and vessel operator's compliance with the logbook reporting requirements outlined in Sec. 635.5. This metric will reflect the timeliness of the submission of the logbooks (for example, the amount of time elapsed between the offloading of the catch and the logbook submission).
(4) Combining performance metrics. The performance metrics described under paragraphs (b)(1) through (3) of this section will be combined through the use of a decision formula described in Amendment 7 to the 2006 Consolidated HMS FMP. The decision formula will result in a designation for each vessel of ``qualified'' or ``not qualified.''
(c) Annual notification. NMFS will notify permitted vessel owners annually of the score of their vessel (i.e., ``qualified'' or ``not qualified'') by certified mail. The score applies for only one year. NMFS will make aggregate data regarding access to gear restricted areas available to the general public.
(d) Appeals. Permitted vessel owners can appeal their performance score determinations pursuant to the procedures, timing, and other requirements at Sec. 635.15(k)(4)(i), (ii), and (iv). Any initial administrative determination or appeal would be evaluated based upon the following criteria:
(1) The accuracy of NMFS records regarding the relevant information; and
(2) correct assignment of historical data to the vessel owner/
permit holder. The current owner of a permitted vessel
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may also appeal on the basis of historical changes in vessel ownership or permit transfers. Appeals based on hardship factors will not be considered.
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10. Add Sec. 635.15 to subpart B--with paragraphs (b)(3), (b)(4)(ii) and (b)(5)(i) effective January 1, 2016--to read as follows:
Sec. 635.15 Individual bluefin tuna quotas.
(a) General. This section establishes an IBQ Program for eligible Atlantic Tunas Longline permit holders that use pelagic longline gear under this part and addresses Atlantic Tunas Purse Seine category leasing.
(1) Overview. Under the IBQ Program, NMFS will assign eligible Atlantic Tunas Longline permit holders initial IBQ shares equivalent to a percentage of the annual Longline category quota. Purse Seine Category quota shares are allocated separately pursuant to Sec. 635.27(a)(4).
(2) Electronic IBQ System. IBQ Program participants, Atlantic Tunas Purse Seine category participants, and other permit holders eligible to lease IBQ allocations under paragraph (c) of this section, must have access to the electronic IBQ system and set up an IBQ account on that system as instructed by NMFS.
(b) IBQ allocation and usage. An IBQ quota allocation is the amount of bluefin tuna (whole weight) in metric tons (mt), which an IBQ Program participant is allotted to account for incidental catch of bluefin tuna during a given calendar year. Unless otherwise required under paragraph (b)(5) of this section, an Atlantic Tunas Longline permitted vessel's initial IBQ allocation for a particular year is derived by multiplying its IBQ share (percentage) by the Longline category quota for that year.
(1) Annual calculation and notification of IBQ allocations. Annually, as described in detail in paragraph (f) of this section, NMFS will notify IBQ share recipients of their IBQ allocation for the next calendar year. IBQ allocations expire at the end of each calendar year.
(2) Regional designations. As described further under paragraph (k)(3) of this section, all IBQ shares and resultant allocations are designated as either ``Gulf of Mexico'' or ``Atlantic'' based upon the geographic location of sets as reported to NMFS under the requirements of Sec. 635.5. Regional percentages determine the share and allocation within the two pelagic longline (PLL) share categories: Gulf of Mexico (PLL GOM) and Atlantic (PLL ATL). PLL GOM shares and resultant allocations can be used to fish with pelagic longline gear in either the Gulf of Mexico or the Atlantic regions. PLL ATL shares and resultant allocations can only be used to fish with pelagic longline gear in the Atlantic region. Purse Seine category annual allocations can only be used to fish in the Atlantic region, even if leased to a PLL participant. For the purposes of this section, the Gulf of Mexico region includes all waters of the U.S. EEZ west and north of the boundary stipulated at 50 CFR 600.105(c) and the Atlantic region includes all other waters of the Atlantic Ocean with the exception regarding fishing taking place in the Northeast Distant (NED) gear restricted area defined at Sec. 635.2 and is further described in paragraph (b)(8) of this section.
(3) Minimum IBQ allocation. Before departing on a fishing trip, 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. The minimum IBQ allocation for a vessel fishing in the Gulf of Mexico, or departing for a fishing trip in the Gulf of Mexico, is 0.25 mt ww (551 lb ww). The minimum IBQ allocation for a vessel fishing in the Atlantic or departing for a fishing trip in the Atlantic is 0.125 mt ww (276 lb ww). A vessel owner or operator may not declare into or depart on a fishing trip with pelagic longline gear onboard unless it has the relevant required minimum IBQ allocation for the region in which the fishing activity will occur.
(4) Accounting for bluefin tuna caught. (i) With the exception of vessels fishing in the NED, in compliance with the requirements of paragraph (b)(8) of this section, all bluefin tuna catch (dead discards and landings) must be accounted for and deducted from the vessel's IBQ allocation.
(ii) If the amount of bluefin tuna catch on a particular trip exceeds the amount of the vessel's IBQ allocation, the vessel may continue to fish and complete the trip, but must resolve any quota debt (see paragraph (b)(5) of this section before declaring into or departing on a subsequent fishing trip with pelagic longline gear onboard by acquiring additional IBQ allocation through leasing, as described in paragraph (c) of this section.
(iii) IBQ Program participants, Atlantic Tunas Purse Seine category participants, and dealers must comply with reporting requirements at Sec. 635.5(b)(2)(i)(A). The vessel owner or operator of a vessel that caught bluefin tuna must enter dead discard information from the trip simultaneously with the dealer entering that trip's landings information into the electronic IBQ system (pursuant to Sec. 635.5(b)(2)(i)(A)). The vessel owner or operator must also confirm the accuracy of the dealer reported data at the time of entry in the electronic IBQ System. No IBQ transactions will be processed between 6 p.m. eastern time on December 31 and 2 p.m. Eastern Time on January 1 of each year to provide NMFS time to reconcile IBQ accounts and update IBQ shares and allocations for the upcoming fishing year.
(5) Exceeding an available allocation. This paragraph (b)(5) applies to a vessel with, or an permit holder of, an Atlantic Tunas Longline category permit or an Atlantic Tunas Purse Seine category permit unless otherwise specified. If the amount of bluefin tuna catch for a particular trip (as defined at Sec. 600.10 of this chapter) exceeds the amount of allocation available to the vessel, the permitted vessel is considered to have a ``quota debt'' equal to the difference between the catch and the allocation. For example, if a vessel has an allocation of 0.40 mt (882 lb), and catches 0.50 mt (1,102 lb) of bluefin tuna on a trip, that vessel would have a quota debt of 0.10 mt (220 lb).
(i) Trip level quota debt. Vessels with a quota debt cannot fish with or have gear for which the vessel is permitted onboard until the quota debt is settled by leasing allocation for the appropriate region (per paragraph (c) of this section) and applying the leased allocation to settle the quota debt or through additional allocation (per paragraph (f) of this section) such that the permitted vessel has at least the minimum quota allocation required to fish as specified in paragraph (b)(3) of this section.
(ii) Annual level quota debt. If, by the end of the fishing year, a permit holder does not have adequate allocation (obtained either through leasing under paragraph (c) of this section) or additional allocation under paragraph (f) of this section to settle their vessel's quota debt, the vessel's allocation will be reduced in the amount equal to the quota debt in the subsequent year or years until the quota debt is fully accounted for. A vessel may not fish if it has outstanding quota debt, even across fishing years.
(iii) Association with permit. Quota debt is associated with the vessel's permit, and remains associated with the permit if/when the permit is transferred or sold. At the end of the year, if an owner with multiple permitted vessels has a quota debt on one or more vessels owned, the IBQ system will apply any remaining unused allocation associated
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with that owner's other vessels to resolve the quota debt.
(6) Duration. IBQ allocation issued under this section is valid for the relevant fishing year unless it is revoked, suspended, or modified or unless the Atlantic Tunas Longline category quota is closed per Sec. 635.28(a).
(7) Unused IBQ allocation. Any IBQ allocation that is unused at the end of the fishing year may not be carried forward by a permit-holder to the following year, but would remain associated with the Longline category as a whole, and subject to the quota regulations under Sec. 635.27, including annual quota adjustments.
(8) The IBQ Program and the Northeast Distant Area (NED). The following restrictions apply to vessels fishing with pelagic longline gear in the NED:
(i) When NED bluefin quota is available. Permitted vessels fishing with pelagic longline gear may fish in the NED, and any bluefin catch will count toward the ICCAT-allocated separate NED quota until the NED quota has been filled. Permitted vessels fishing in the NED are still required to have the minimum IBQ allocation, specified under paragraph (b)(3) of this section to depart on a trip using pelagic longline gear.
(ii) When NED bluefin quota is filled. Permitted vessels fishing with pelagic longline gear may fish in the NED after the ICCAT-
allocated separate NED quota has been filled but the permitted vessels must abide by all the requirements of the IBQ program. Bluefin catch will be accounted for using the vessel's IBQ allocation, as described under paragraphs (b)(2) and (k)(3) of this section.
(c) IBQ Allocation Leasing--(1) Eligibility. The permit holders of vessels issued valid Atlantic Tunas Longline permits and participants in the Atlantic Tunas Purse Seine category are eligible to lease IBQ allocation to and/or from each other. A person who holds an Atlantic Tunas Longline permit that is not associated with a vessel may not lease IBQ allocation.
(2) Application to lease--(i) Application information requirements. All IBQ allocation leases must occur electronically through the electronic IBQ system, and include all information required by NMFS.
(ii) Approval of lease application. Unless NMFS denies an application to lease IBQ allocation according to paragraph (c)(2)(iii) of this section, the electronic IBQ system will provide an approval code to the IBQ lessee confirming the transaction.
(iii) Denial of lease application. NMFS may deny an application to lease IBQ allocation for any of the following reasons, including, but not limited to: The application is incomplete; the IBQ lessor or IBQ lessee is not eligible to lease per paragraph (c)(1) of this section; the IBQ lessor or IBQ lessee permits is sanctioned pursuant to an enforcement proceeding; or the IBQ lessor has an insufficient IBQ allocation available to lease (i.e., the requested amount of lease may not exceed the amount of IBQ allocation associated with the lessor). As the electronic IBQ system is automated, if any of the criteria above are applicable, the lease transaction will not be allowed to proceed. The decision by NMFS is the final agency decision; there is no opportunity for an administrative appeal.
(3) Conditions and restrictions of leased IBQ allocation--(i) Subleasing. In a fishing year, an IBQ allocation may be leased numerous times following the process specified in paragraph (c)(2) of this section.
(ii) History of leased IBQ allocation use. The fishing history associated with the catch of bluefin tuna will be associated with the vessel that caught the bluefin tuna regardless of how the vessel acquired the IBQ allocation (e.g., through initial allocation or lease), for the purpose of calculation of the performance metrics described under Sec. 635.14(b), or other relevant restrictions based upon bluefin catch.
(iii) Duration of IBQ allocation lease. IBQ allocations expire at the end of each calendar year. Thus, an IBQ lessee may only use the leased IBQ allocation during the fishing year in which the IBQ allocation is applicable.
(iv) Temporary prohibition of leasing IBQ allocation. No leasing of IBQ allocation is permitted between 6 p.m. eastern time on December 31 of one year and 2 p.m. Eastern Time on January 1 of the next. . This period is necessary to provide NMFS time to reconcile IBQ accounts, and update IBQ shares and allocations for the upcoming fishing year.
(v) Related restrictions. Other regulations specific to the Atlantic Tunas Purse Seine category are set forth at Sec. 635.27(a)(4)(v).
(d) Sale of IBQ shares. Sale of IBQ shares currently not permitted.
(e) Changes in vessel and permit ownership. In accordance with the regulations specified under Sec. 635.4(l), a vessel owner that has an IBQ share may transfer the Atlantic Tunas Longline category permit to another vessel that he or she owns or transfer the permit to another person. The IBQ share as described under this section would transfer with the permit to the new vessel, and remain associated with that permit. Within a fishing year, when an Atlantic Tunas Longline permit transfer occurs (from one vessel to another), the associated IBQ shares are transferred with the permit, however IBQ allocation is not, unless the IBQ allocation is also transferred through a separate transaction within the electronic IBQ system. As described under paragraphs (c)(1) and (k)(1) of this section, a person or entity that holds an Atlantic Tunas Longline permit that is not associated with a vessel may not receive or lease IBQ allocation.
(f) Annual notification of shares and allocations. On January 1 of each year, NMFS will notify eligible IBQ Participants, as specified in paragraph (k)(1) of this section, of their IBQ share and the resulting IBQ allocation (mt) for the relevant fishing year, as well as the regional designations based on the available Atlantic Tunas Longline category quota, and any existing quota debt. NMFS will provide this information through the electronic IBQ system and via annual permit holder letters. Unless specified otherwise, those IBQ shares and resultant allocations will be available for use at the start of each fishing year. Permit holders (of eligible Atlantic Tunas Longline category permits) that have not completed the process of permit renewal or permit transfer as of December 31 will be issued IBQ allocation upon completion of the permit renewal or permit transfer, provided the eligible permit is associated with a vessel.
(g) Evaluation. NMFS will continually monitor the IBQ Program with respect to the objectives listed in the FEIS and make any changes through future rulemakings as deemed necessary to meet those objectives. Three years after full implementation, NMFS will publish a written report describing any findings.
(h) Property rights. IBQ shares and resultant allocations issued pursuant to this part may be revoked, limited, modified or suspended at any time subject to the requirements of the Magnuson-Stevens Act, ATCA, or other applicable law. Such IBQ shares and resultant allocations do not confer any right to compensation and do not create any right, title, or interest in any bluefin tuna until it is landed or discarded dead.
(i) Enforcement and monitoring. NMFS will enforce and monitor the IBQ Program through the use of the reporting and record keeping requirements described under Sec. 635.5, the monitoring requirements under Sec. Sec. 635.9 and 635.69, and its authority to close the
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pelagic longline fishery specified under Sec. 635.28.
(j) Cost recovery. In a future action, NMFS will develop and implement cost recovery for the IBQ program that will cover costs of management, data collection and analysis, and enforcement activities. Fees shall be collected from quota share and/or allocation holders for the IBQ program pursuant to Magnuson-Stevens Act sections 303A(e) and 304(d)(2). Such fees shall not exceed 3 percent of the ex-vessel value of fish harvested under the program.
(k) Initial IBQ shares. During year one of implementation of the IBQ Program described in this section, NMFS will issue IBQ shares to eligible Atlantic Tunas Longline permit holders, as specified in paragraph (k)(1) of this section. New entrants to the pelagic longline fishery would need to obtain an Atlantic Tunas Longline permit, as well as other required limited access permits, as described under Sec. 635.4(l), and would need to lease IBQ allocations per paragraph (c) of this section if the permits acquired did not qualify for an initial IBQ share.
(1) Eligible IBQ share Recipients. (i) Atlantic Tunas Longline category permit holders whose valid permit was associated with a vessel as of August 21, 2013, and that was determined to be ``active'' would be eligible to receive an initial IBQ share. ``Active'' vessels are those vessels that have used pelagic longline gear on at least one set between 2006 and 2012 as reported to NMFS on logbooks, per the requirements of Sec. 635.5. In determining a permitted vessel's initial IBQ share eligibility and calculating the initial IBQ share, NMFS used the data associated with the qualifying vessel's history (and not the permit). Therefore, for the purposes of this section, the vessel owner at the time of reporting is not relevant. If the logbook reports indicate that a particular vessel used pelagic longline gear for at least one set between 2006 and 2012, and the vessel was issued a valid Atlantic Tunas Longline category permit as of August 21, 2013, the current permit holder is qualified to receive an initial IBQ share.
(ii) Except as described in paragraph (k)(4) of this section regarding appeals, if the logbook reports indicate that a particular vessel did not use pelagic longline gear for at least one set between 2006 and 2012, and/or the vessel was not issued a valid Atlantic Tunas Longline category permit on August 21, 2013, the current permit holder is not eligible to receive an initial IBQ share even if the current permit holder fished with pelagic longline gear on a different vessel between 2006 and 2012. Persons that held an Atlantic Tunas Longline category permit that was not associated with a vessel as of August 21, 2013 are not eligible for an initial IBQ share. Atlantic Tunas Longline category permits holders that are ineligible to receive an initial IBQ share would need to lease IBQ allocation per paragraph (c) of this section, as well as meet all other applicable requirements, before the vessel could fish with or possess pelagic longline gear onboard.
(2) IBQ share determination (i) Initial IBQ shares. NMFS has reviewed each permitted vessel's reported bluefin tuna interactions (all discards and landings) and landings of designated species (swordfish, yellowfin, bigeye, albacore, and skipjack tunas; dolphin; wahoo; and porbeagle, shortfin mako and thresher sharks) and placed each permitted vessel into one of three tiers: Low, medium and high based on the ratio of bluefin tuna interactions. The IBQ share will be assigned based on the three tiers.
(ii) Appeals to initial IBQ shares. When NMFS determines that all appeals pursuant to paragraph (k)(4) of this section have been resolved, NMFS may adjust the initial IBQ share percentages described under paragraph (k)(2)(i) as necessary to accommodate those appellants that have been deemed eligible for an initial IBQ share or are provided an increased IBQ share.
(3) Regional designations. All initial IBQ shares and resultant allocations are designated as either ``Gulf of Mexico'' or ``Atlantic'' based upon the geographic location of sets as reported to NMFS under the requirements of Sec. 635.5. Eligible permit holders may use Gulf of Mexico IBQ shares and resultant allocations to fish in either the Gulf of Mexico or the Atlantic regions. Eligible permit holders may use Atlantic IBQ shares and resultant allocations only to fish in the Atlantic region. If a permitted vessel had fishing history in both the Gulf of Mexico and Atlantic, it may receive both the Gulf of Mexico and Atlantic IBQ shares, depending upon the amount of IBQ share and the proportion of fishing history in the two areas. Based on the procedures described under paragraphs (k)(1) and (2) of this section, if a permit holder would be issued a regional IBQ share that results in a regional allocation less than a minimum amount for a particular area (i.e., less than 0.125 mt for the Atlantic or less than 0.25 mt for the Gulf of Mexico), the de minimis regional IBQ share and resultant allocation would be designated to the other regional designation.
(4) Appeals of initial IBQ share. Atlantic Tunas Longline Permit holders may appeal their initial IBQ shares through the two-step process described below. NMFS will provide further explanation on how to submit an appeal when it informs permit holders of their initial IBQ shares.
(i) Initial administrative determination (IAD). The HMS Management Division will evaluate requests from Atlantic Tunas Longline Permit holders regarding their initial IBQ shares. Any request must be postmarked no later than March 2, 2015, be in writing, and indicate the reason for the request, and contain documentation supporting the request (see paragraphs (k)(4)(iii) and (iv) of this section). The HMS Management Division will evaluate the request and supporting documentation, and notify the appellant by a written IAD regarding a decision to approve or deny the request. The IAD will explain the basis for any denial decision.
(ii) Appeal of IAD. Within 90 days after the date of issuance of the IAD, the permit holder may appeal the IAD to the NMFS National Appeals Office, pursuant to procedures at 15 CFR part 906.
(iii) Items subject to IAD and appeal. The only items subject to an IAD or appeal are: Initial IBQ share eligibility based on ownership of an active vessel with a valid Atlantic Tunas Longline category permit combined with the required shark and swordfish limited access permits; the accuracy of NMFS records regarding that vessel's amount of designated species landings and/or bluefin interactions; and correct assignment of target species landings and bluefin interactions to the vessel owner/permit holder. As described under paragraph (k)(1) of this section, the IBQ share formulas are based upon historical data associated with a permitted vessel. Because vessels may have changed ownership or permits may have been transferred during 2006 through 2012, the current owner of a permitted vessel may also appeal on the basis of historical changes in vessel ownership or permit transfers. Appeals based on hardship factors (e.g., illness of vessel owner, divorce, etc.) will not be considered.
(iv) Supporting documentation for IAD or appeal. NMFS will consider official NMFS logbook records or weighout slips for landings between January 1, 2006, through December 31, 2012, that were submitted to NMFS prior to March 2, 2013 (60 days after the cutoff date for eligible landings) and verifiable sales slips, receipts from registered dealers, state landings records, and permit records as supporting documentation for a request
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or appeal under paragraph (k)(4) of this section. NMFS will count only those designated species landings that were landed legally when the owner had a valid permit. No other proof of catch history or species interactions will be considered, except for NMFS logbook records, observer data, or other NMFS data. NMFS permit records will be the sole basis for determining permit transfers. Copies of documents may be submitted, provided they are of equal legibility and quality as the originals, and such copies shall have the same force and effect as if they were originals. NMFS may request the originals at a later date. NMFS may refer any submitted materials that are of questionable authenticity to the NMFS Office of Enforcement for investigation.
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11. Add Sec. 635.19 to subpart C to read as follows:
Sec. 635.19 Authorized gears.
(a) General. No person may fish for, catch, possess, or retain any Atlantic HMS with gears other than the primary gears specifically authorized in this part. Consistent with Sec. 635.21(a), secondary gears may be used at boat side to aid and assist in subduing, or bringing on board a vessel, Atlantic HMS that have first been caught or captured using primary gears. For purposes of this part, secondary gears include, but are not limited to, dart harpoons, gaffs, flying gaffs, tail ropes, etc. Secondary gears may not be used to capture, or attempt to capture, free-swimming or undersized HMS. Except for vessels permitted under Sec. 635.4(o) or as specified in this section, a vessel using or having onboard in the Atlantic Ocean any unauthorized gear may not possess an Atlantic HMS on board.
(b) Atlantic tunas. A person that fishes for, retains, or possesses an Atlantic bluefin tuna may not have on board a vessel or use on board a vessel any primary gear other than those authorized for the category for which the Atlantic tunas or HMS permit has been issued for such vessel. Primary gears are the gears specifically authorized in this section. When fishing for Atlantic tunas other than bluefin tuna, primary gear authorized for any Atlantic Tunas permit category may be used, except that purse seine gear may be used only on board vessels permitted in the Purse Seine category and pelagic longline gear may be used only on board vessels issued an Atlantic Tunas Longline category tuna permit, a LAP other than handgear for swordfish, and a LAP for sharks. A person issued an HMS Commercial Caribbean Small Boat permit who fishes for, retains, or possesses BAYS tunas in the U.S. Caribbean, as defined at Sec. 622.2 of this chapter, may have on board and use handline, harpoon, rod and reel, bandit gear, green-stick gear, and buoy gear.
(1) Angling. Speargun (for BAYS tunas only), and rod and reel (including downriggers) and handline (for all tunas).
(2) Charter/headboat. Rod and reel (including downriggers), bandit gear, handline, and green-stick gear are authorized for all recreational and commercial Atlantic tuna fisheries. Speargun is authorized for recreational Atlantic BAYS tuna fisheries only.
(3) General. Rod and reel (including downriggers), handline, harpoon, bandit gear, and green-stick.
(4) Harpoon. Harpoon.
(5) Longline. Longline and green-stick.
(6) Purse seine. Purse seine.
(7) Trap. Pound net and fish weir.
(c) Billfish. (1) Only persons who have been issued a valid HMS Angling or valid Charter/Headboat permit, or who have been issued a valid Atlantic Tunas General category or Swordfish General Commercial permit and are participating in a tournament as provided in Sec. 635.4(c), may possess a blue marlin, white marlin, or roundscale spearfish in, or take a blue marlin, white marlin, or roundscale spearfish from, its management unit. Blue marlin, white marlin, or roundscale spearfish may only be harvested by rod and reel.
(2) Only persons who have been issued a valid HMS Angling or valid Charter/Headboat permit, or who have been issued a valid Atlantic Tunas General category or Swordfish General Commercial permit and are participating in a tournament as provided in Sec. 635.4(c), may possess or take a sailfish shoreward of the outer boundary of the Atlantic EEZ. Sailfish may only be harvested by rod and reel.
(d) Sharks. No person may possess a shark in the EEZ taken from its management unit without a permit issued under Sec. 635.4. No person issued a Federal Atlantic commercial shark permit under Sec. 635.4 may possess a shark taken by any gear other than rod and reel, handline, bandit gear, longline, or gillnet. No person issued an HMS Commercial Caribbean Small Boat permit may possess a shark taken from the U.S. Caribbean, as defined at Sec. 622.2 of this chapter, by any gear other than with rod and reel, handline or bandit gear. No person issued an HMS Angling permit or an HMS Charter/Headboat permit under Sec. 635.4 may possess a shark if the shark was taken from its management unit by any gear other than rod and reel or handline, except that persons on a vessel issued both an HMS Charter/Headboat permit and a Federal Atlantic commercial shark permit may possess sharks taken with rod and reel, handline, bandit gear, longline, or gillnet if the vessel is not engaged in a for-hire fishing trip.
(e) Swordfish. (1) No person may possess north Atlantic swordfish taken from its management unit by any gear other than handgear, green-
stick, or longline, except that such swordfish taken incidentally while fishing with a squid trawl may be retained by a vessel issued a valid Incidental HMS squid trawl permit, subject to restrictions specified in Sec. 635.24(b)(2). No person may possess south Atlantic swordfish taken from its management unit by any gear other than longline.
(2) An Atlantic swordfish may not be retained or possessed on board a vessel with a gillnet. A swordfish will be deemed to have been harvested by gillnet when it is onboard, or offloaded from, a vessel fishing with or having on board a gillnet.
(3) A person aboard a vessel issued or required to be issued a valid directed handgear LAP for Atlantic swordfish or an HMS Commercial Caribbean Small Boat permit may not fish for swordfish with any gear other than handgear. A swordfish will be deemed to have been harvested by longline when the fish is on board or offloaded from a vessel fishing with or having on board longline gear. Only vessels that have been issued a valid directed or handgear swordfish LAP or an HMS Commercial Caribbean Small Boat permit under this part may utilize or possess buoy gear.
(4) Except for persons aboard a vessel that has been issued a directed, incidental, or handgear limited access swordfish permit, a Swordfish General Commercial permit, an Incidental HMS squid trawl permit, or an HMS Commercial Caribbean Small Boat permit under Sec. 635.4, no person may fish for North Atlantic swordfish with, or possess a North Atlantic swordfish taken by, any gear other than handline or rod and reel.
(5) A person aboard a vessel issued or required to be issued a valid Swordfish General Commercial permit may only possess North Atlantic swordfish taken from its management unit by rod and reel, handline, bandit gear, green-stick, or harpoon gear.
0
12. Section 635.21 is revised to read as follows:
Sec. 635.21 Gear operation, restricted areas, and deployment restrictions.
(a) All Atlantic HMS fishing gears. (1) An Atlantic HMS harvested from its management unit that is not retained must be released in a manner that will ensure maximum probability of
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survival, but without removing the fish from the water.
(2) If a billfish is caught by a hook and not retained, the fish must be released by cutting the line near the hook or by using a dehooking device, in either case without removing the fish from the water.
(3) Restricted gear and closed areas for all Atlantic HMS fishing gears. (i) No person may fish for, catch, possess, or retain any Atlantic HMS or anchor a fishing vessel that has been issued a permit or is required to be permitted under this part, in the areas and seasons designated at Sec. 622.34(a)(3) of this chapter.
(ii) From November through April of each year, no vessel issued, or required to be issued, a permit under this part may fish or deploy any type of fishing gear in the Madison-Swanson closed area or the Steamboat Lumps closed area, as defined in Sec. 635.2.
(iii) From May through October of each year, no vessel issued, or required to be issued, a permit under this part may fish or deploy any type of fishing gear in the Madison-Swanson or the Steamboat Lumps closed areas except for surface trolling. For the purposes of this section, surface trolling is defined as fishing with lines trailing behind a vessel which is in constant motion at speeds in excess of four knots with a visible wake. Such trolling may not involve the use of down riggers, wire lines, planers, or similar devices.
(iv) From January through April of each year, no vessel issued, or required to be issued, a permit under this part may fish or deploy any type of fishing gear in the Edges 40 Fathom Contour closed area, as defined in Sec. 635.2.
(b) Longline--general restrictions. (1) All vessels that have pelagic or bottom longline gear onboard and that have been issued, or are required to have, a limited access swordfish, shark, or tuna Longline category permit for use in the Atlantic Ocean including the Caribbean Sea and the Gulf of Mexico must possess inside the wheelhouse the document provided by NMFS entitled ``Careful Release Protocols for Sea Turtle Release with Minimal Injury,'' and must also post inside the wheelhouse the sea turtle handling and release guidelines provided by NMFS.
(2) Transiting and gear stowage: If a vessel issued a permit under this part is in a closed or gear restricted area described in this section with pelagic or bottom longline gear on board, it is a rebuttable presumption that any fish on board such a vessel were taken with pelagic or bottom longline in the closed or gear restricted area except where such possession is aboard a vessel transiting a closed area with all fishing gear stowed appropriately. Longline gear is stowed appropriately if all gangions and hooks are disconnected from the mainline and are stowed on or below deck, hooks are not baited, and all buoys and weights are disconnected from the mainline and drum (buoys may remain on deck).
(3) When a marine mammal or sea turtle is hooked or entangled by pelagic or bottom longline gear, the operator of the vessel must immediately release the animal, retrieve the pelagic or bottom longline gear, and move at least 1 nm (2 km) from the location of the incident before resuming fishing. Similarly, when a smalltooth sawfish is hooked or entangled by bottom longline gear, the operator of the vessel must immediately release the animal, retrieve the bottom longline gear, and move at least 1 nm (2 km) from the location of the incident before resuming fishing. Reports of marine mammal entanglements must be submitted to NMFS consistent with regulations in Sec. 229.6 of this title.
(4) Vessels that have pelagic or bottom longline gear on board and that have been issued, or are required to have been issued, a permit under this part must have only corrodible hooks on board.
(c) Pelagic longlines. (1) If a vessel issued or required to be issued a permit under this part:
(i) Is in a closed area designated under paragraph (c)(2) of this section and has bottom longline gear onboard, the vessel may not, at any time, possess or land any pelagic species listed in table 2 of appendix A to this part in excess of 5 percent, by weight, of the total weight of pelagic and demersal species possessed or landed, that are listed in tables 2 and 3 of appendix A to this part.
(ii) Has pelagic longline gear on board, persons aboard that vessel may not possess, retain, transship, land, sell, or store silky sharks, oceanic whitetip sharks, or scalloped, smooth, or great hammerhead sharks.
(2) Except as noted in paragraph (c)(3) of this section, if pelagic longline gear is on board a vessel issued or required to be issued a permit under this part, persons aboard that vessel may not fish or deploy any type of fishing gear:
(i) In the Northeastern United States closed area from June 1 through June 30 each calendar year;
(ii) In the Charleston Bump closed area from February 1 through April 30 each calendar year;
(iii) In the East Florida Coast closed area at any time;
(iv) In the Desoto Canyon closed area at any time;
(v) In the Cape Hatteras gear restricted area from December 1 through April 30 each year;
(vi) In the Spring Gulf of Mexico gear restricted area from April 1 through May 30 each year;
(vii) In the Northeast Distant gear restricted area at any time, unless persons onboard the vessel complies with the following:
(A) The vessel is limited to possessing onboard and/or using only 18/0 or larger circle hooks with an offset not to exceed 10 degrees. The outer diameter of the circle hook at its widest point must be no smaller than 2.16 inches (55 mm) when measured with the eye on the hook on the vertical axis (y-axis) and perpendicular to the horizontal axis (x-axis), and the distance between the circle hook point and the shank (i.e., the gap) must be no larger than 1.13 inches (28.8 mm). The allowable offset is measured from the barbed end of the hook and is relative to the parallel plane of the eyed-end, or shank, of the hook when laid on its side. The only allowable offset circle hooks are those that are offset by the hook manufacturer. If green-stick gear, as defined at Sec. 635.2, is onboard, a vessel may possess up to 20 J-
hooks. J-hooks may be used only with green-stick gear, and no more than 10 hooks may be used at one time with each green-stick gear. J-hooks used with green-stick gear may be no smaller than 1.5 inch (38.1 mm) when measured in a straight line over the longest distance from the eye to any other part of the hook; and,
(B) The vessel is limited, at all times, to possessing onboard and/
or using only whole Atlantic mackerel and/or squid bait, except that artificial bait may be possessed and used only with green-stick gear, as defined at Sec. 635.2, if green-stick gear is onboard; and,
(C) Vessels must possess, inside the wheelhouse, a document provided by NMFS entitled, ``Careful Release Protocols for Sea Turtle Release with Minimal Injury,'' and must post, inside the wheelhouse, sea turtle handling and release guidelines provided by NMFS; and,
(D) Required sea turtle bycatch mitigation gear, which NMFS has approved under paragraph (c)(5)(iv) of this section, on the initial list of ``NMFS-Approved Models For Equipment Needed For The Careful Release of Sea Turtles Caught In Hook And Line Fisheries,'' must be carried onboard, and must be used in accordance with the handling requirements specified in paragraphs (c)(2)(vii)(E) through (G) of this section; and,
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(E) Sea turtle bycatch mitigation gear, specified in paragraph (c)(2)(vii)(D) of this section, must be used to disengage any hooked or entangled sea turtles that cannot be brought on board, and to facilitate access, safe handling, disentanglement, and hook removal or hook cutting from sea turtles that can be brought on board, where feasible. Sea turtles must be handled, and bycatch mitigation gear must be used, in accordance with the careful release protocols and handling/
release guidelines specified in paragraph (c)(2)(vii)(C) of this section, and in accordance with the onboard handling and resuscitation requirements specified in Sec. 223.206(d)(1) of this title.
(F) Boated turtles: When practicable, active and comatose sea turtles must be brought on board, with a minimum of injury, using a dipnet approved on the initial list specified in paragraph (c)(2)(vii)(D) of this section. All turtles less than 3 ft. (.91 m) carapace length should be boated, if sea conditions permit. A boated turtle should be placed on a standard automobile tire, or cushioned surface, in an upright orientation to immobilize it and facilitate gear removal. Then, it should be determined if the hook can be removed without causing further injury. All externally embedded hooks should be removed, unless hook removal would result in further injury to the turtle. No attempt to remove a hook should be made if the hook has been swallowed and the insertion point is not visible, or if it is determined that removal would result in further injury. If a hook cannot be removed, as much line as possible should be removed from the turtle using approved monofilament line cutters from the initial list specified in paragraph (c)(2)(vii)(D) of this section, and the hook should be cut as close as possible to the insertion point, using bolt cutters from that list, before releasing the turtle. If a hook can be removed, an effective technique may be to cut off either the barb, or the eye, of the hook using bolt cutters, and then to slide the hook out. When the hook is visible in the front of the mouth, an approved mouth-opener from the initial list specified in paragraph (c)(2)(vii)(D) of this section may facilitate opening the turtle's mouth, and an approved gag from that list may facilitate keeping the mouth open. Short-handled dehookers for ingested hooks, long-nose pliers, or needle-nose pliers from the initial list specified in paragraph (c)(2)(vii)(D) of this section should be used to remove visible hooks that have not been swallowed from the mouth of boated turtles, as appropriate. As much gear as possible must be removed from the turtle without causing further injury prior to its release. Refer to the careful release protocols and handling/release guidelines required in paragraph (c)(2)(vii)(C) of this section, and the handling and resuscitation requirements specified in Sec. 223.206(d)(1) of this title, for additional information.
(G) Non-boated turtles: If a sea turtle is too large, or hooked in a manner that precludes safe boating without causing further damage or injury to the turtle, sea turtle bycatch mitigation gear, specified in paragraph (c)(2)(vii)(D) of this section, must be used to disentangle sea turtles from fishing gear and disengage any hooks, or to clip the line and remove as much line as possible from a hook that cannot be removed, prior to releasing the turtle, in accordance with the protocols specified in paragraph (c)(2)(vii)(C) of this section. Non-
boated turtles should be brought close to the boat and provided with time to calm down. Then, it must be determined whether or not the hook can be removed without causing further injury. A front flipper or flippers of the turtle must be secured, if possible, with an approved turtle control device from the list specified in paragraph (c)(2)(vii)(D) of this section. All externally embedded hooks must be removed, unless hook removal would result in further injury to the turtle. No attempt should be made to remove a hook if it has been swallowed, or if it is determined that removal would result in further injury. If the hook cannot be removed and/or if the animal is entangled, as much line as possible must be removed prior to release, using an approved line cutter from the list specified in paragraph (c)(2)(vii)(D) of this section. If the hook can be removed, it must be removed using a long-handled dehooker from the initial list specified in paragraph (c)(2)(vii)(D) of this section. Without causing further injury, as much gear as possible must be removed from the turtle prior to its release. Refer to the careful release protocols and handling/
release guidelines required in paragraph (c)(2)(vii)(C) of this section, and the handling and resuscitation requirements specified in Sec. 223.206(d)(1) of this title, for additional information.
(3) Restricted access to the Cape Hatteras Gear Restricted Area. A vessel that has been issued, or is required to have been issued, a limited access permit under this part may fish with pelagic longline gear in the Cape Hatteras gear restricted area described in paragraph (c)(2)(v) of this section, provided the vessel has been determined by NMFS to be ``qualified,'' (for the relevant year) using the performance metrics described in Sec. 635.14.
(4) In the Gulf of Mexico, pelagic longline gear may not be fished or deployed from a vessel issued or required to have been issued a limited access permit under this part with live bait affixed to the hooks; and, a person aboard a vessel issued or required to have been issued a limited access permit under this part that has pelagic longline gear on board may not possess live baitfish, maintain live baitfish in any tank or well on board the vessel, or set up or attach an aeration or water circulation device in or to any such tank or well. For the purposes of this section, the Gulf of Mexico includes all waters of the U.S. EEZ west and north of the boundary stipulated at 50 CFR 600.105(c).
(5) The operator of a vessel permitted or required to be permitted under this part and that has pelagic longline gear on board must undertake the following sea turtle bycatch mitigation measures:
(i) Possession and use of required mitigation gear. Required sea turtle bycatch mitigation gear, which NMFS has approved under paragraph (c)(5)(iv) of this section as meeting the minimum design standards specified in paragraphs (c)(5)(i)(A) through (M) of this section, must be carried onboard, and must be used to disengage any hooked or entangled sea turtles in accordance with the handling requirements specified in paragraph (c)(5)(ii) of this section.
(A) Long-handled line clipper or cutter. Line cutters are intended to cut high test monofilament line as close as possible to the hook, and assist in removing line from entangled sea turtles to minimize any remaining gear upon release. NMFS has established minimum design standards for the line cutters, which may be purchased or fabricated from readily available and low-cost materials. The LaForce line cutter and the Arceneaux line clipper are models that meet these minimum design standards. One long-handled line clipper or cutter meeting the minimum design standards, and a set of replacement blades, are required to be onboard. The minimum design standards for line cutters are as follows:
(1) A protected and secured cutting blade. The cutting blade(s) must be capable of cutting 2.0-2.1 mm (0.078 in.-0.083 in.) monofilament line (400-lb test) or polypropylene multistrand material, known as braided or tarred mainline, and must be maintained in working order. The cutting blade must be curved, recessed, contained in a holder, or otherwise designed to
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facilitate its safe use so that direct contact between the cutting surface and the sea turtle or the user is prevented. The cutting instrument must be securely attached to an extended reach handle and be easily replaceable. One extra set of replacement blades meeting these standards must also be carried on board to replace all cutting surfaces on the line cutter or clipper.
(2) An extended reach handle. The line cutter blade(s) must be securely fastened to an extended reach handle or pole with a minimum length equal to, or greater than, 150 percent of the height of the vessel's freeboard, or 6 feet (1.83 m), whichever is greater. It is recommended, but not required, that the handle break down into sections. There is no restriction on the type of material used to construct this handle as long as it is sturdy and facilitates the secure attachment of the cutting blade.
(B) Long-handled dehooker for ingested hooks. A long-handled dehooking device is intended to remove ingested hooks from sea turtles that cannot be boated. It should also be used to engage a loose hook when a turtle is entangled but not hooked, and line is being removed. The design must shield the barb of the hook and prevent it from re-
engaging during the removal process. One long-handled device, meeting the minimum design standards, is required onboard to remove ingested hooks. The minimum design standards are as follows:
(1) Hook removal device. The hook removal device must be constructed of 5/16-inch (7.94 mm) 316 L stainless steel and have a dehooking end no larger than 1-7/8-inches (4.76 cm) outside diameter. The device must securely engage and control the leader while shielding the barb to prevent the hook from re-engaging during removal. It may not have any unprotected terminal points (including blunt ones), as these could cause injury to the esophagus during hook removal. The device must be of a size appropriate to secure the range of hook sizes and styles used in the pelagic longline fishery targeting swordfish and tuna.
(2) Extended reach handle. The dehooking end must be securely fastened to an extended reach handle or pole with a minimum length equal to or greater than 150 percent of the height of the vessel's freeboard, or 6 ft. (1.83 m), whichever is greater. It is recommended, but not required, that the handle break down into sections. The handle must be sturdy and strong enough to facilitate the secure attachment of the hook removal device.
(C) Long-handled dehooker for external hooks. A long-handled dehooker, meeting the minimum design standards, is required onboard for use on externally-hooked sea turtles that cannot be boated. The long-
handled dehooker for ingested hooks described in paragraph (c)(5)(i)(B) of this section would meet this requirement. The minimum design standards are as follows:
(1) Construction. A long-handled dehooker must be constructed of 5/
16-inch (7.94 mm) 316 L stainless steel rod. A 5-inch (12.7-cm) tube T-
handle of 1-inch (2.54 cm) outside diameter is recommended, but not required. The design should be such that a fish hook can be rotated out, without pulling it out at an angle. The dehooking end must be blunt with all edges rounded. The device must be of a size appropriate to secure the range of hook sizes and styles used in the pelagic longline fishery targeting swordfish and tuna.
(2) Extended reach handle. The handle must be a minimum length equal to the height of the vessel's freeboard or 6 ft. (1.83 m), whichever is greater.
(D) Long-handled device to pull an ``inverted V.'' This tool is used to pull a ``V'' in the fishing line when implementing the ``inverted V'' dehooking technique, as described in the document entitled ``Careful Release Protocols for Sea Turtle Release With Minimal Injury,'' required under paragraph (a)(3) of this section, for disentangling and dehooking entangled sea turtles. One long-handled device to pull an ``inverted V'', meeting the minimum design standards, is required onboard. If a 6-ft (1.83 m) J-style dehooker is used to comply with paragraph (c)(5)(i)(C) of this section, it will also satisfy this requirement. Minimum design standards are as follows:
(1) Hook end. This device, such as a standard boat hook or gaff, must be constructed of stainless steel or aluminum. A sharp point, such as on a gaff hook, is to be used only for holding the monofilament fishing line and should never contact the sea turtle.
(2) Extended reach handle. The handle must have a minimum length equal to the height of the vessel's freeboard, or 6 ft. (1.83 m), whichever is greater. The handle must be sturdy and strong enough to facilitate the secure attachment of the gaff hook.
(E) Dipnet. One dipnet, meeting the minimum design standards, is required onboard. Dipnets are to be used to facilitate safe handling of sea turtles by allowing them to be brought onboard for fishing gear removal, without causing further injury to the animal. Turtles must not be brought onboard without the use of a dipnet. The minimum design standards for dipnets are as follows:
(1) Size of dipnet. The dipnet must have a sturdy net hoop of at least 31 inches (78.74 cm) inside diameter and a bag depth of at least 38 inches (96.52 cm) to accommodate turtles below 3 ft. (0.914 m) carapace length. The bag mesh openings may not exceed 3 inches (7.62 cm). There must be no sharp edges or burrs on the hoop, or where the hoop is attached to the handle.
(2) Extended reach handle. The dipnet hoop must be securely fastened to an extended reach handle or pole with a minimum length equal to, or greater than, 150 percent of the height of the vessel's freeboard, or at least 6 ft (1.83 m), whichever is greater. The handle must made of a rigid material strong enough to facilitate the sturdy attachment of the net hoop and able to support a minimum of 100 lbs (34.1 kg) without breaking or significant bending or distortion. It is recommended, but not required, that the extended reach handle break down into sections.
(F) Tire. A minimum of one tire is required onboard for supporting a turtle in an upright orientation while it is onboard, although an assortment of sizes is recommended to accommodate a range of turtle sizes. The required tire must be a standard passenger vehicle tire, and must be free of exposed steel belts.
(G) Short-handled dehooker for ingested hooks. One short-handled device, meeting the minimum design standards, is required onboard for removing ingested hooks. This dehooker is designed to remove ingested hooks from boated sea turtles. It can also be used on external hooks or hooks in the front of the mouth. Minimum design standards are as follows:
(1) Hook removal device. The hook removal device must be constructed of \1/4\-inch (6.35 mm) 316 L stainless steel, and must allow the hook to be secured and the barb shielded without re-engaging during the removal process. It must be no larger than \15/16\ inch (3.33 cm) outside diameter. It may not have any unprotected terminal points (including blunt ones), as this could cause injury to the esophagus during hook removal. A sliding PVC bite block must be used to protect the beak and facilitate hook removal if the turtle bites down on the dehooking device. The bite block should be constructed of a \3/
4\-inch (1.91 cm) inside diameter high impact plastic cylinder (e.g., Schedule 80 PVC) that is 10 inches (25.4 cm) long to allow for 5 inches (12.7 cm) of slide along the shaft. The device must be of a size appropriate to secure the range of hook sizes and styles used in the pelagic
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longline fishery targeting swordfish and tuna.
(2) Handle length. The handle should be approximately 16-24 inches (40.64 cm-60.69 cm) in length, with approximately a 5-inch (12.7 cm) long tube T-handle of approximately 1 inch (2.54 cm) in diameter.
(H) Short-handled dehooker for external hooks. One short-handled dehooker for external hooks, meeting the minimum design standards, is required onboard. The short-handled dehooker for ingested hooks required to comply with paragraph (c)(5)(i)(G) of this section will also satisfy this requirement. Minimum design standards are as follows:
(1) Hook removal device. The dehooker must be constructed of \5/
16\-inch (7.94 cm) 316 L stainless steel, and the design must be such that a hook can be rotated out without pulling it out at an angle. The dehooking end must be blunt, and all edges rounded. The device must be of a size appropriate to secure the range of hook sizes and styles used in the pelagic longline fishery targeting swordfish and tuna.
(2) Handle length. The handle should be approximately 16-24 inches (40.64 cm-60.69 cm) long with approximately a 5-inch (12.7 cm) long tube T-handle of approximately 1 inch (2.54 cm) in diameter.
(I) Long-nose or needle-nose pliers. One pair of long-nose or needle-nose pliers, meeting the minimum design standards, is required on board. Required long-nose or needle-nose pliers can be used to remove deeply embedded hooks from the turtle's flesh that must be twisted during removal. They can also hold PVC splice couplings, when used as mouth openers, in place. To meet the minimum design standards such pliers must generally be approximately 12 inches (30.48 cm) in length, and should be constructed of stainless steel material.
(J) Bolt cutters. One pair of bolt cutters, meeting the minimum design standards, is required on board. Required bolt cutters may be used to cut hooks to facilitate their removal. They should be used to cut off the eye or barb of a hook, so that it can safely be pushed through a sea turtle without causing further injury. They should also be used to cut off as much of the hook as possible, when the remainder of the hook cannot be removed. To meet the minimum design standards such bolt cutters must generally be approximately 17 inches (43.18 cm) in total length, with 4-inch (10.16 cm) long blades that are 2\1/4\ inches (5.72 cm) wide, when closed, and with 13-inch (33.02 cm) long handles. Required bolt cutters must be able to cut hard metals, such as stainless or carbon steel hooks, up to \1/4\-inch (6.35 mm) diameter.
(K) Monofilament line cutters. One pair of monofilament line cutters is required on board. Required monofilament line cutters must be used to remove fishing line as close to the eye of the hook as possible, if the hook is swallowed or cannot be removed. To meet the minimum design standards such monofilament line cutters must generally be approximately 7\1/2\ inches (19.05 cm) in length. The blades must be 1 in (4.45 cm) in length and \5/8\-in (1.59 cm) wide, when closed, and are recommended to be coated with Teflon (a trademark owned by E.I. DuPont de Nemours and Company Corp.).
(L) Mouth openers/mouth gags. Required mouth openers and mouth gags are used to open sea turtle mouths, and to keep them open when removing ingested hooks from boated turtles. They must allow access to the hook or line without causing further injury to the turtle. Design standards are included in the item descriptions. At least two of the seven different types of mouth openers/gags described below are required:
(1) A block of hard wood. Placed in the corner of the jaw, a block of hard wood may be used to gag open a turtle's mouth. A smooth block of hard wood of a type that does not splinter (e.g. maple) with rounded edges should be sanded smooth, if necessary, and soaked in water to soften the wood. The dimensions should be approximately 11 inches (27.94 cm) 1 inch (2.54 cm) 1 inch (2.54 cm). A long-handled, wire shoe brush with a wooden handle, and with the wires removed, is an inexpensive, effective and practical mouth-opening device that meets these requirements.
(2) A set of three canine mouth gags. Canine mouth gags are highly recommended to hold a turtle's mouth open, because the gag locks into an open position to allow for hands-free operation after it is in place. A set of canine mouth gags must include one of each of the following sizes: small (5 inches) (12.7 cm), medium (6 inches) (15.24 cm), and large (7 inches) (17.78 cm). They must be constructed of stainless steel. A 1-inch (4.45 cm) piece of vinyl tubing (\3/4\-inch (1.91 cm) outside diameter and \5/8\-inch (1.59 cm) inside diameter) must be placed over the ends to protect the turtle's beak.
(3) A set of two sturdy dog chew bones. Placed in the corner of a turtle's jaw, canine chew bones are used to gag open a sea turtle's mouth. Required canine chews must be constructed of durable nylon, zylene resin, or thermoplastic polymer, and strong enough to withstand biting without splintering. To accommodate a variety of turtle beak sizes, a set must include one large (5\1/2\-8 inches (13.97 cm-20.32 cm) in length), and one small (3\1/2\-4\1/2\ inches (8.89 cm-11.43 cm) in length) canine chew bones.
(4) A set of two rope loops covered with hose. A set of two rope loops covered with a piece of hose can be used as a mouth opener, and to keep a turtle's mouth open during hook and/or line removal. A required set consists of two 3-foot (0.91 m) lengths of poly braid rope (\3/8\-inch (9.52 mm) diameter suggested), each covered with an 8-inch (20.32 cm) section of \1/2\-inch (1.27 cm) or \3/4\-inch (1.91 cm) light-duty garden hose, and each tied into a loop. The upper loop of rope covered with hose is secured on the upper beak to give control with one hand, and the second piece of rope covered with hose is secured on the lower beak to give control with the user's foot.
(5) A hank of rope. Placed in the corner of a turtle's jaw, a hank of rope can be used to gag open a sea turtle's mouth. A 6-foot (1.83 m) lanyard of approximately \3/16\-inch (4.76 mm) braided nylon rope may be folded to create a hank, or looped bundle, of rope. Any size soft-
braided nylon rope is allowed, however it must create a hank of approximately 2-4 inches (5.08 cm-10.16 cm) in thickness.
(6) A set of four PVC splice couplings. PVC splice couplings can be positioned inside a turtle's mouth to allow access to the back of the mouth for hook and line removal. They are to be held in place with the needle-nose pliers. To ensure proper fit and access, a required set must consist of the following Schedule 40 PVC splice coupling sizes: 1 inch (2.54 cm), 1\1/4\ inch (3.18 cm), 1\1/2\ inch (3.81 cm), and 2 inches (5.08 cm).
(7) A large avian oral speculum. A large avian oral speculum provides the ability to hold a turtle's mouth open and to control the head with one hand, while removing a hook with the other hand. The avian oral speculum must be 9-inches (22.86 cm) long, and constructed of \3/16\-inch (4.76 mm) wire diameter surgical stainless steel (Type 304). It must be covered with 8 inches (20.32 cm) of clear vinyl tubing (\5/16\-inch (7.9 mm) outside diameter, \3/16\-inch (4.76 mm) inside diameter).
(M) Turtle control devices. One turtle control device, as described in paragraph (c)(5)(i)(M)(1) or (2) of this section, and meeting the minimum design standards, is required onboard and must be used to secure a front flipper of the sea turtle so that the animal can be controlled at the side of
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the vessel. It is strongly recommended that a pair of turtle control devices be used to secure both front flippers when crew size and conditions allow. Minimum design standards consist of:
(1) Turtle tether and extended reach handle. Approximately 15-20 feet of \1/2\-inch hard lay negative buoyance line is used to make an approximately 30-inch loop to slip over the flipper. The line is fed through a \3/4\-inch fair lead, eyelet, or eyebolt at the working end of a pole and through a \3/4\-inch eyelet or eyebolt in the midsection. A \1/2\-inch quick release cleat holds the line in place near the end of the pole. A final \3/4\-inch eyelet or eyebolt should be positioned approximately 7-inches behind the cleat to secure the line, while allowing a safe working distance to avoid injury when releasing the line from the cleat. The line must be securely fastened to an extended reach handle or pole with a minimum length equal to, or greater than, 150 percent of the height of the vessel's freeboard, or a minimum of 6 feet (1.83 m), whichever is greater. There is no restriction on the type of material used to construct this handle, as long as it is sturdy. The handle must include a tag line to attach the tether to the vessel to prevent the turtle from breaking away with the tether still attached.
(2) T&G ninja sticks and extended reach handles. Approximately 30-
35 feet of \1/2\-inch to \5/8\-inch soft lay polypropylene or nylon line or similar is fed through 2 PVC conduit, fiberglass, or similar sturdy poles and knotted using an overhand (recommended) knot at the end of both poles or otherwise secured. There should be approximately 18-24 inches of exposed rope between the poles to be used as a working surface to capture and secure the flipper. Knot the line at the ends of both poles to prevent line slippage if they are not otherwise secured. The remaining line is used to tether the apparatus to the boat unless an additional tag line is used. Two lengths of sunlight resistant \3/
4\-inch schedule 40 PVC electrical conduit, fiberglass, aluminum, or similar material should be used to construct the apparatus with a minimum length equal to, or greater than, 150 percent of the height of the vessel's freeboard, or 6 feet (1.83 m), whichever is greater.
(ii) Handling and release requirements. (A) Sea turtle bycatch mitigation gear, as required by paragraphs (c)(5)(i)(A) through (D) of this section, must be used to disengage any hooked or entangled sea turtles that cannot be brought onboard. Sea turtle bycatch mitigation gear, as required by paragraphs (c)(5)(i)(E) through (M) of this section, must be used to facilitate access, safe handling, disentanglement, and hook removal or hook cutting of sea turtles that can be brought onboard, where feasible. Sea turtles must be handled, and bycatch mitigation gear must be used, in accordance with the careful release protocols and handling/release guidelines specified in paragraph (a)(3) of this section, and in accordance with the onboard handling and resuscitation requirements specified in Sec. 223.206(d)(1) of this title.
(B) Boated turtles. When practicable, active and comatose sea turtles must be brought on board, with a minimum of injury, using a dipnet as required by paragraph (c)(5)(i)(E) of this section. All turtles less than 3 ft. (.91 m) carapace length should be boated, if sea conditions permit.
(1) A boated turtle should be placed on a standard automobile tire, or cushioned surface, in an upright orientation to immobilize it and facilitate gear removal. Then, it should be determined if the hook can be removed without causing further injury.
(2) All externally embedded hooks should be removed, unless hook removal would result in further injury to the turtle. No attempt to remove a hook should be made if it has been swallowed and the insertion point is not visible, or if it is determined that removal would result in further injury.
(3) If a hook cannot be removed, as much line as possible should be removed from the turtle using monofilament cutters as required by paragraph (c)(5)(i) of this section, and the hook should be cut as close as possible to the insertion point before releasing the turtle, using boltcutters as required by paragraph (c)(5)(i) of this section.
(4) If a hook can be removed, an effective technique may be to cut off either the barb, or the eye, of the hook using bolt cutters, and then to slide the hook out. When the hook is visible in the front of the mouth, a mouth-opener, as required by paragraph (c)(5)(i) of this section, may facilitate opening the turtle's mouth and a gag may facilitate keeping the mouth open. Short-handled dehookers for ingested hooks, long-nose pliers, or needle-nose pliers, as required by paragraph (c)(5)(i) of this section, should be used to remove visible hooks from the mouth that have not been swallowed on boated turtles, as appropriate.
(5) As much gear as possible must be removed from the turtle without causing further injury prior to its release. Refer to the careful release protocols and handling/release guidelines required in paragraph (a)(3) of this section, and the handling and resuscitation requirements specified in Sec. 223.206(d)(1) of this title, for additional information.
(C) Non-boated turtles. If a sea turtle is too large, or hooked in a manner that precludes safe boating without causing further damage or injury to the turtle, sea turtle bycatch mitigation gear required by paragraphs (c)(5)(i)(A) through (D) of this section must be used to disentangle sea turtles from fishing gear and disengage any hooks, or to clip the line and remove as much line as possible from a hook that cannot be removed, prior to releasing the turtle, in accordance with the protocols specified in paragraph (a)(3) of this section.
(1) Non-boated turtles should be brought close to the boat and provided with time to calm down. Then, it must be determined whether or not the hook can be removed without causing further injury. A front flipper or flippers of the turtle must be secured with an approved turtle control device from the list specified in paragraph (c)(2)(v)(D) of this section.
(2) All externally embedded hooks must be removed, unless hook removal would result in further injury to the turtle. No attempt should be made to remove a hook if it has been swallowed, or if it is determined that removal would result in further injury. If the hook cannot be removed and/or if the animal is entangled, as much line as possible must be removed prior to release, using a line cutter as required by paragraph (c)(5)(i) of this section. If the hook can be removed, it must be removed using a long-handled dehooker as required by paragraph (c)(5)(i) of this section.
(3) Without causing further injury, as much gear as possible must be removed from the turtle prior to its release. Refer to the careful release protocols and handling/release guidelines required in paragraph (a)(3) of this section, and the handling and resuscitation requirements specified in Sec. 223.206(d)(1) for additional information.
(iii) Gear modifications. The following measures are required of vessel operators to reduce the incidental capture and mortality of sea turtles:
(A) Gangion length. The length of any gangion on vessels that have pelagic longline gear on board and that have been issued, or are required to have, a limited access swordfish, shark, or tuna Longline category permit for use in the Atlantic Ocean including the Caribbean Sea and the Gulf of Mexico must be at least 10 percent longer than any floatline length if the total length of any gangion plus the total length of any floatline is less than 100 meters.
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(B) Hook size, type, and bait. Vessels fishing outside of the NED gear restricted area, as defined at Sec. 635.2, that have pelagic longline gear on board, and that have been issued, or are required to have, a limited access swordfish, shark, or Atlantic Tunas Longline category permit for use in the Atlantic Ocean, including the Caribbean Sea and the Gulf of Mexico, are limited, at all times, to possessing on board and/or using only whole finfish and/or squid bait, and the following types and sizes of fishing hooks:
(1) 18/0 or larger circle hooks with an offset not to exceed 10deg; and/or,
(2) 16/0 or larger non-offset circle hooks.
(i) For purposes of paragraphs (c)(5)(iii)(B)(1) and (2) of this section, the outer diameter of an 18/0 circle hook at its widest point must be no smaller than 2.16 inches (55 mm), and the outer diameter of a 16/0 circle hook at its widest point must be no smaller than 1.74 inches (44.3 mm), when measured with the eye of the hook on the vertical axis (y-axis) and perpendicular to the horizontal axis (x-
axis). The distance between the hook point and the shank (i.e., the gap) on an 18/0 circle hook must be no larger than 1.13 inches (28.8 mm), and the gap on a 16/0 circle hook must be no larger than 1.01 inches (25.8 mm). The allowable offset is measured from the barbed end of the hook, and is relative to the parallel plane of the eyed-end, or shank, of the hook when laid on its side. The only allowable offset circle hooks are those that are offset by the hook manufacturer. In the Gulf of Mexico, as described at Sec. 600.105(c) of this chapter, circle hooks also must be constructed of corrodible round wire stock that is no larger than 3.65 mm in diameter.
(ii) Reserved
(3) If green-stick gear, as defined at Sec. 635.2, is onboard, a vessel may possess up to 20 J-hooks. J-hooks may be used only with green-stick gear, and no more than 10 hooks may be used at one time with each green-stick gear. J-hooks used with green-stick gear may be no smaller than 1.5 inch (38.1 mm) when measured in a straight line over the longest distance from the eye to any other part of the hook. If green-stick gear is onboard, artificial bait may be possessed, but may be used only with green-stick gear.
(iv) Approval of sea turtle bycatch mitigation gear. NMFS will file with the Office of the Federal Register for publication an initial list of required sea turtle bycatch mitigation gear that NMFS has approved as meeting the minimum design standards specified under paragraph (c)(5)(i) of this section. Other devices proposed for use as line clippers or cutters or dehookers, as specified under paragraphs (c)(5)(i)(A), (B), (C), (G), (H), and (K) of this section, must be approved as meeting the minimum design standards before being used. NMFS will examine new devices, as they become available, to determine if they meet the minimum design standards, and will file with the Office of the Federal Register for publication notification of any new devices that are approved as meeting the standards.
(d) Bottom longlines. (1) If bottom longline gear is onboard a vessel issued a permit under this part, persons aboard that vessel may not fish or deploy any type of fishing gear in the following areas:
(i) The mid-Atlantic shark closed area from January 1 through July 31 each calendar year;
(ii) The areas designated at Sec. 622.33(a)(1) through (3) of this chapter, year-round; and
(iii) The areas described in paragraphs (d)(1)(iii)(A) through (H) of this section, year-round.
(A) Snowy Grouper Wreck. Bounded by rhumb lines connecting, in order, the following points: 33deg25' N. lat., 77deg04.75' W. long.; 33deg34.75' N. lat., 76deg51.3' W. long.; 33deg25.5' N. lat., 76deg46.5' W. long.; 33deg15.75' N. lat., 77deg00.0' W. long.; 33deg25' N. lat., 77deg04.75' W. long.
(B) Northern South Carolina. Bounded on the north by 32deg53.5' N. lat.; on the south by 32deg48.5' N. lat.; on the east by 78deg04.75' W. long.; and on the west by 78deg16.75' W. long.
(C) Edisto. Bounded on the north by 32deg24' N. lat.; on the south by 32deg18.5' N. lat.; on the east by 78deg54.0' W. long.; and on the west by 79deg06.0' W. long.
(D) Charleston Deep Artificial Reef. Bounded by rhumb lines connecting, in order, the following points: 32deg04' N. lat., 79deg12' W. long.; 32deg08.5' N. lat., 79deg07.5' W. long.; 32deg06' N. lat., 79deg05' W. long.; 32deg01.5' N. lat., 79deg09.3' W. long.; 32deg04' N. lat., 79deg12' W. long.
(E) Georgia. Bounded by rhumb lines connecting, in order, the following points: 31deg43' N. lat., 79deg31' W. long.; 31deg43' N. lat., 79deg21' W. long.; 31deg34' N. lat., 79deg29' W. long.; 31deg34' N. lat., 79deg39' W. long; 31deg43' N. lat., 79deg31' W. long.
(F) North Florida. Bounded on the north by 30deg29' N. lat.; on the south by 30deg19' N. lat.; on the east by 80deg02' W. long.; and on the west by 80deg14' W. long.
(G) St. Lucie Hump. Bounded on the north by 27deg08' N. lat.; on the south by 27deg04' N. lat.; on the east by 79deg58' W. long.; and on the west by 80deg00' W. long.
(H) East Hump. Bounded by rhumb lines connecting, in order, the following points: 24deg36.5' N. lat., 80deg45.5' W. long.; 24deg32' N. lat., 80deg36' W. long; 24deg27.5' N. lat., 80deg38.5' W. long; 24deg32.5' N. lat., 80deg48' W. long.; 24deg36.5' N. lat., 80deg45.5' W. long.
(2) The operator of a vessel required to be permitted under this part and that has bottom longline gear on board must undertake the following bycatch mitigation measures to release sea turtles, prohibited sharks, or smalltooth sawfish, as appropriate.
(i) Possession and use of required mitigation gear. The equipment listed in paragraph (c)(5)(i) of this section must be carried on board and must be used to handle, release, and disentangle hooked or entangled sea turtles, prohibited sharks, or smalltooth sawfish in accordance with requirements specified in paragraph (d)(2)(ii) of this section.
(ii) Handling and release requirements. Sea turtle bycatch mitigation gear, as required by paragraph (d)(2)(i) of this section, must be used to disengage any hooked or entangled sea turtle as stated in paragraph (c)(5)(ii) of this section. This mitigation gear should also be employed to disengage any hooked or entangled species of prohibited sharks as listed under heading D of Table 1 of appendix A of this part, any hooked or entangled species of sharks that exceed the retention limits as specified in Sec. 635.24(a), and any hooked or entangled smalltooth sawfish. In addition, if a smalltooth sawfish is caught, the fish should be kept in the water while maintaining water flow over the gills and the fish should be examined for research tags. All smalltooth sawfish must be released in a manner that will ensure maximum probability of survival, but without removing the fish from the water or any research tags from the fish.
(3) If a vessel issued or required to be issued a permit under this part is in a closed area designated under paragraph (d)(1) of this section and has pelagic longline gear onboard, the vessel may not, at any time, possess or land any demersal species listed in Table 3 of Appendix A to this part in excess of 5 percent, by weight, of the total weight of pelagic and demersal species possessed or landed, that are listed in Tables 2 and 3 of Appendix A to this part.
(e) Purse seine--(1) Mesh size. A purse seine used in directed fishing for bluefin tuna must have a mesh size equal to or smaller than 4.5 inches (11.4 cm) in the main body (stretched when
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wet) and must have at least 24-count thread throughout the net.
(2) Inspection of purse seine vessels. Persons that own or operate an Atlantic Tunas purse seine vessel must have their fishing gear inspected for mesh size by an enforcement agent of NMFS prior to commencing fishing for the season in any fishery that may result in the harvest of Atlantic tunas. Such persons must request such inspection at least 24 hours before commencement of the first fishing trip of the season. If NMFS does not inspect the vessel within 24 hours of such notification, the inspection requirement is waived. In addition, at least 24 hours before commencement of offloading any bluefin tuna after a fishing trip, such persons must request an inspection of the vessel and catch by notifying NMFS. If, after notification by the vessel, NMFS does not arrange to inspect the vessel and catch at offloading, the inspection requirement is waived.
(f) Rod and reel. Persons who have been issued or are required to be issued a permit under this part and who are participating in a ``tournament,'' as defined in Sec. 635.2, that bestows points, prizes, or awards for Atlantic billfish must deploy only non-offset circle hooks when using natural bait or natural bait/artificial lure combinations, and may not deploy a J-hook or an offset circle hook in combination with natural bait or a natural bait/artificial lure combination.
(g) Gillnet. (1) Persons fishing with gillnet gear must comply with the provisions implementing the Atlantic Large Whale Take Reduction Plan, the Bottlenose Dolphin Take Reduction Plan, the Harbor Porpoise Take Reduction Plan, and any other relevant Take Reduction Plan set forth in Sec. Sec. 229.32 through 229.35 of this title. If a listed whale is taken, the vessel operator must cease fishing operations immediately and contact NOAA Fisheries as required under part 229 of this title.
(2) While fishing with a gillnet for or in possession of any of the large coastal, small coastal, and pelagic sharks listed in section A, B, and/or C of table 1 of appendix A of this part, the gillnet must remain attached to at least one vessel at one end, except during net checks.
(3) Vessel operators fishing with gillnet for, or in possession of, any of the large coastal, small coastal, and pelagic sharks listed in sections A, B, and/or C of table 1 of appendix A of this part are required to conduct net checks every 0.5 to 2 hours to look for and remove any sea turtles, marine mammals, or smalltooth sawfish. Smalltooth sawfish should not be removed from the water while being removed from the net.
(h) Buoy gear. Vessels utilizing buoy gear may not possess or deploy more than 35 floatation devices, and may not deploy more than 35 individual buoy gears per vessel. Buoy gear must be constructed and deployed so that the hooks and/or gangions are attached to the vertical portion of the mainline. Floatation devices may be attached to one but not both ends of the mainline, and no hooks or gangions may be attached to any floatation device or horizontal portion of the mainline. If more than one floatation device is attached to a buoy gear, no hook or gangion may be attached to the mainline between them. Individual buoy gears may not be linked, clipped, or connected together in any way. Buoy gears must be released and retrieved by hand. All deployed buoy gear must have some type of monitoring equipment affixed to it including, but not limited to, radar reflectors, beeper devices, lights, or reflective tape. If only reflective tape is affixed, the vessel deploying the buoy gear must possess on board an operable spotlight capable of illuminating deployed floatation devices. If a gear monitoring device is positively buoyant, and rigged to be attached to a fishing gear, it is included in the 35 floatation device vessel limit and must be marked appropriately.
(i) Speargun fishing gear. Speargun fishing gear may only be utilized when recreational fishing for Atlantic BAYS tunas and only from vessels issued either a valid HMS Angling or valid HMS Charter/
Headboat permit. Persons fishing for Atlantic BAYS tunas using speargun gear, as specified in Sec. 635.19, must be physically in the water when the speargun is fired or discharged, and may freedive, use SCUBA, or other underwater breathing devices. Only free-swimming BAYS tunas, not those restricted by fishing lines or other means, may be taken by speargun fishing gear. ``Powerheads,'' as defined at Sec. 600.10 of this chapter, or any other explosive devices, may not be used to harvest or fish for BAYS tunas with speargun fishing gear.
(j) Green-stick gear. Green-stick gear may only be utilized when fishing from vessels issued a valid Atlantic Tunas General, Swordfish General Commercial, HMS Charter/Headboat, or Atlantic Tunas Longline category permit. The gear must be attached to the vessel, actively trolled with the mainline at or above the water's surface, and may not be deployed with more than 10 hooks or gangions attached.
0
13. In Sec. 635.23, the section heading and paragraphs (d), (e) and (f) are revised to read as follows:
Sec. 635.23 Retention limits for bluefin tuna.
* * * * *
(d) Harpoon category. Persons aboard a vessel permitted in the Atlantic Tunas Harpoon category may retain, possess, or land an unlimited number of giant bluefin tuna per day. An incidental catch of two large medium bluefin tuna per vessel per day may be retained, possessed, or landed, unless the retention limits is increased by NMFS through an inseason adjustment to three, or a maximum of four, large medium bluefin tuna per vessel per day, based upon the criteria under Sec. 635.27(a)(8). NMFS will implement an adjustment via publication in the Federal Register. If adjusted upwards to three or four large medium bluefin tuna per vessel per day, NMFS may subsequently decrease the retention limit down to the default level of two, based on the criteria under Sec. 635.27(a)(8).
(e) Purse Seine category. Persons aboard a vessel permitted in the Atlantic Tunas Purse Seine category may retain giant bluefin tuna (81 inches and larger), and smaller bluefin, as restricted by paragraphs (e)(1) and (2) of this section, up to the amount of individual quota allocated under Sec. 635.27(a)(4)(ii). Purse seine vessel owners who, through landing and/or leasing, have no remaining bluefin tuna quota allocation may not use their permitted vessels in any fishery in which Atlantic bluefin tuna might be caught, regardless of whether bluefin tuna are retained, unless such vessel owners lease additional allocation through the Individual Bluefin Quota Allocation Leasing Program, under Sec. 635.15(c). Persons aboard a vessel permitted in the Atlantic Tunas Purse Seine category,
(1) May retain, possess, land, or sell large medium bluefin in amounts not exceeding 15 percent, by weight, of the total amount of giant bluefin landed during that fishing year.
(2) May retain, possess, or land bluefin smaller than the large medium size class that are taken incidentally when fishing for skipjack tuna in an amount not exceeding 1 percent, by weight, of the skipjack tuna and yellowfin tuna landed on that trip. Landings of bluefin smaller than the large medium size class may not be sold and are counted against the Purse Seine category bluefin quota allocated to that vessel.
(3) May fish for yellowfin, bigeye, albacore, or skipjack tuna at any time; however, landings of bluefin tuna taken
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incidental to fisheries targeting other Atlantic tunas or in any fishery in which bluefin tuna might be caught will be deducted from the individual vessel's quota.
(f) Longline category. Persons aboard a vessel permitted in the Atlantic Tunas Longline category are subject to the bluefin tuna retention restrictions in paragraphs (f)(1) and (2) of this section.
(1) A vessel fishing with pelagic longline gear may retain, possess, land and sell large medium and giant bluefin tuna taken incidentally when fishing for other species if in compliance with all the IBQ requirements of Sec. 635.15, including the requirement that a vessel may not declare into or depart on a fishing trip with pelagic longline onboard unless it has the required minimum bluefin tuna IBQ allocation required for the region where fishing activity will occur.
(2) A vessel with pelagic longline gear onboard must retain all dead bluefin tuna that are 73 inches or greater CFL.
* * * * *
0
14. In Sec. 635.27:
0
-
Paragraphs (a) introductory text, (a)(1) through (3), and (a)(4)(i) through (iv) are revised;
0
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Paragraph (a)(4)(v) is added;
0
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Paragraphs (a)(5) and (6), (a)(7) heading, and (a)(7)(i) are revised;
0
-
Paragraphs (a)(8)(x) through (xiv) are added;
0
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Paragraphs (a)(9), and (a)(10)(i) through (iii) are revised; and
0
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Paragraph (e) is added.
The revisions and additions read as follows:
Sec. 635.27 Quotas.
(a) Bluefin tuna. Consistent with ICCAT recommendations, and with paragraph (a)(10)(iv) of this section, NMFS may subtract the most recent, complete, and available estimate of dead discards from the annual U.S. bluefin tuna quota, and make the remainder available to be retained, possessed, or landed by persons and vessels subject to U.S. jurisdiction. The remaining baseline annual U.S. bluefin tuna quota will be allocated among the General, Angling, Harpoon, Purse Seine, Longline, Trap, and Reserve categories, as described in this section. The baseline annual U.S. bluefin tuna quota is 923.7 mt ww, not including an additional annual 25 mt ww allocation provided in paragraph (a)(3) of this section. The bluefin quota for the quota categories is calculated through the following process. First, 68 mt ww is subtracted from the baseline annual U.S. bluefin tuna quota and allocated to the Longline category quota. Second, the remaining quota is divided among the categories according to the following percentages: General--47.1 percent (403 mt ww); Angling--19.7 percent (168.6 mt ww), which includes the school bluefin tuna held in reserve as described under paragraph (a)(7)(ii) of this section; Harpoon--3.9 percent (33.4 mt ww); Purse Seine--18.6 percent (159.1 mt ww); Longline--8.1 percent (69.3 mt ww) plus the 68 mt ww allocation (137.3 mt ww total not including 25 mt ww allocation from paragraph (a)(3)); Trap--0.1 percent (0.9 mt ww); and Reserve--2.5 percent (21.4, mt ww). NMFS may make inseason and annual adjustments to quotas as specified in paragraphs (a)(9) and (10) of this section, including quota adjustments as a result of the annual reallocation of Purse Seine quota described under paragraph (a)(4)(v) of this section. Bluefin tuna quotas are specified in whole weight.
(1) General category quota. (i) Catches from vessels for which General category Atlantic Tunas permits have been issued, catches from vessels issued an Atlantic Tunas Longline permit fishing under the provisions of Sec. 635.21(c)(3)(vi)(B), and certain catches from vessels for which an HMS Charter/Headboat permit has been issued are counted against the General category quota in accordance with Sec. 635.23(c)(3). Pursuant to paragraph (a) of this section, the amount of large medium and giant bluefin tuna that may be caught, retained, possessed, landed, or sold under the General category quota is 403 mt ww, and is apportioned as follows, unless modified as described under paragraph (a)(1)(ii) of this section:
(A) January 1 through the effective date of a closure notice filed by NMFS announcing that the January subquota is reached, or projected to be reached under Sec. 635.28(a)(1), or until March 31, whichever comes first--5.3 percent (21.4 mt ww);
(B) June 1 through August 31--50 percent (201.5 mt ww);
(C) September 1 through September 30--26.5 percent (106.8 mt ww);
(D) October 1 through November 30--13 percent (52.4 mt ww); and
(E) December 1 through December 31--5.2 percent (21 mt ww).
(ii) NMFS may adjust each period's apportionment based on overharvest or underharvest in the prior period, and may transfer subquota from one time period to another time period, earlier in the year, through inseason action or annual specifications. For example, subquota could be transferred from the December 1 through December 31 time period to the January time period; or from the October 1 through November 30 time period to the September time period. This inseason adjustment may occur prior to the start of that year. In other words, although subject to the inseason criteria under paragraph (a)(8) of this section, the adjustment could occur prior to the start of the fishing year. For example, an inseason action transferring the 2016 December 1 through December 31 time period subquota to the 2016 January 1 time period subquota could be filed in 2015.
(iii) When the General category fishery has been closed in any quota period specified under paragraph (a)(1)(i) of this section, NMFS will publish a closure action as specified in Sec. 635.28. The subsequent time-period subquota will automatically open in accordance with the dates specified under paragraph (a)(1)(i) of this section.
(2) Angling category quota. In accordance with the framework procedures of the Consolidated HMS FMP, prior to each fishing year, or as early as feasible, NMFS will establish the Angling category daily retention limits. In accordance with paragraph (a) of this section, the total amount of bluefin tuna that may be caught, retained, possessed, and landed by anglers aboard vessels for which an HMS Angling permit or an HMS Charter/Headboat permit has been issued is 168.6 mt ww. No more than 2.3 percent (3.9 mt ww) of the annual Angling category quota may be large medium or giant bluefin tuna. In addition, over each 2-
consecutive-year period (starting in 2011, inclusive), no more than 10 percent of the annual U.S. bluefin tuna quota, inclusive of the allocation specified in paragraph (a)(3) of this section, may be school bluefin tuna (i.e., 94.9 mt ww). The Angling category quota includes the amount of school bluefin tuna held in reserve under paragraph (a)(7)(ii) of this section. The size class subquotas for bluefin tuna are further subdivided as follows:
(i) After adjustment for the school bluefin tuna quota held in reserve (under paragraph (a)(7)(ii) of this section), 52.8 percent (40.8 mt ww) of the school bluefin tuna Angling category quota may be caught, retained, possessed, or landed south of 39deg18' N. lat. The remaining school bluefin tuna Angling category quota (36.5 mt ww) may be caught, retained, possessed or landed north of 39deg18' N. lat.
(ii) An amount equal to 52.8 percent (36.9 mt ww) of the large school/small medium bluefin tuna Angling category quota may be caught, retained, possessed, or landed south of 39deg18' N. lat. The remaining large school/small medium bluefin tuna Angling category quota (32.9 mt ww) may be caught,
Page 71603
retained, possessed or landed north of 39deg18' N. lat.
(iii) One third (1.3 mt ww) of the large medium and giant bluefin tuna Angling category quota may be caught retained, possessed, or landed, in each of the three following geographic areas: North of 39deg18' N. lat.; south of 39deg18' N. lat., and outside of the Gulf of Mexico; and in the Gulf of Mexico. For the purposes of this section, the Gulf of Mexico region includes all waters of the U.S. EEZ west and north of the boundary stipulated at 50 CFR 600.105(c).
(3) Longline category quota. Pursuant to paragraph (a) of this section, the total amount of large medium and giant bluefin tuna that may be caught, discarded dead, or retained, possessed, or landed by vessels that possess Atlantic Tunas Longline category permits is 137.3 mt ww. In addition, 25 mt ww shall be allocated for incidental catch by pelagic longline vessels fishing in the Northeast Distant gear restricted area, and subject to the restrictions under Sec. 635.15(b)(8).
(4) * * *
(i) Baseline Purse Seine quota. Pursuant to paragraph (a) of this section, the baseline amount of large medium and giant bluefin tuna that may be caught, retained, possessed, or landed by vessels that possess Atlantic Tunas Purse Seine category permits is 159.1 mt ww, unless adjusted as a result of inseason and/or annual adjustments to quotas as specified in paragraphs (a)(9) and (10) of this section; or adjusted (prior to allocation to individual participants) based on the previous year's catch as described under paragraph (a)(4)(v) of this section. Annually, NMFS will make a determination when the Purse Seine fishery will start, based on variations in seasonal distribution, abundance or migration patterns of bluefin tuna, cumulative and projected landings in other commercial fishing categories, the potential for gear conflicts on the fishing grounds, or market impacts due to oversupply. NMFS will start the bluefin tuna purse seine season between June 1 and August 15, by filing an action with the Office of the Federal Register, and notifying the public. The Purse Seine category fishery closes on December 31 of each year.
(ii) Allocation of bluefin quota to Purse Seine category participants. Annually, NMFS will make equal allocations of the baseline Purse Seine category quota described under paragraph (a)(4)(i) of this section to individual Purse Seine participants (i.e., 38.1 mt each), then make further determinations regarding the allocations per paragraph (a)(4)(v) of this section. Allocations of individual bluefin quota to individual Purse Seine participants may only be transferred through leasing in accordance with procedures and requirements at Sec. 635.15(c) and other requirements under this paragraph (a)(4).
(iii) Duration. Bluefin tuna quota allocation issued under this section is valid for the relevant fishing year unless it is revoked, suspended, or modified or unless the Atlantic Tunas Purse Seine category quota is closed per Sec. 635.28(a).
(iv) Unused bluefin allocation. Any quota allocation that is unused at the end of the fishing year may not be carried forward by a Purse Seine participant to the following year, but would remain associated with the Purse Seine category as a whole, and subject to the quota regulations under Sec. 635.27, including annual quota adjustments.
(v) Annual reallocation of Atlantic Tunas Purse Seine category quota. (A) By the end of each year, NMFS will determine the amount of quota available to each Atlantic Tunas Purse Seine category participant for the upcoming fishing year, based on his/her bluefin catch (landings and dead discards). Specifically, NMFS will allocate each Atlantic Tunas Purse Seine category participant either 100 percent, 75 percent, 50 percent, or 25 percent of his/her individual baseline quota allocation, described in paragraph (a)(4)(ii) of this section, according to the following criteria: if the Purse Seine participant's catch in year one ranges from 0 to 20 percent of his/her individual baseline quota allocation, as described under paragraph (a)(4)(ii) of this section, the Purse Seine category participant would be allocated 25 percent of his/her individual baseline quota allocation in year two, and 75 percent of his/her individual allocation would be reallocated to the Reserve category for that year. Similarly, if the Purse Seine participant's catch in year one is from greater than 20 percent up to 45 percent of his/her individual baseline quota allocation, that Purse Seine category participant would be allocated 50 percent of his/her individual baseline quota allocation in year two, and 50 percent of his/her individual allocation would be reallocated to the Reserve category for that year. If the Purse Seine participant's catch in year one is from greater than 45 percent up to 70 percent of his/her individual baseline quota allocation, that Purse Seine category participant would be allocated 75 percent of his/her individual baseline quota allocation in year two, and 25 percent of his/her individual allocation would be transferred to the Reserve category for that year. If the Purse Seine participant's catch in year one is greater than 70 percent of his/her individual baseline quota allocation, that Purse Seine category participant would be allocated 100 percent of his/her individual baseline quota allocation in year two, and no quota would be transferred to the Reserve category for that year. These criteria would apply following the same pattern in years two and beyond.
(B) Purse Seine category participants may only lease to eligible IBQ participants allocated quota available to them that year, consistent with the purse seine allocation availability provisions in this section. For example, if a Purse Seine category participant was allocated 50 percent of his/her baseline quota, he/she would be able to catch and/or lease that allocation to an eligible IBQ participant. The individual participant's remaining baseline quota would not be available to lease but would be transferred to the Reserve category. Allocation of less than 100% of a participant's baseline quota (i.e., 25 percent, 50 percent, or 75 percent) does not preclude the participant from leasing additional quota, as needed, consistent with Sec. 635.15(c).
(C) NMFS will inform each Atlantic Tunas Purse Seine category participant annually of its determination regarding the amount of individual quota allocated for the subsequent year through the electronic IBQ system established under Sec. 635.15 and in writing via a permit holder letter, when NMFS has the complete catch data for the Purse Seine fishery.
(5) Harpoon category quota. The total amount of large medium and giant bluefin tuna that may be caught, retained, possessed, landed, or sold by vessels that possess Harpoon category Atlantic Tunas permits is 33.4 mt ww. The Harpoon category fishery commences on June 1 of each year, and closes on November 15 of each year.
(6) Trap category quota. The total amount of large medium and giant bluefin tuna that may be caught, retained, possessed, or landed by vessels that possess Trap category Atlantic Tunas permits is 0.9 mt ww.
(7) Reserve category quota. (i) The total amount of bluefin tuna that is held in reserve for inseason or annual adjustments and research using quota or subquotas is 21.4 mt ww, which may be augmented by allowable underharvest from the previous year, or annual reallocation of Purse Seine category quota as described under paragraph (a)(4)(v) of this section. Consistent with paragraphs (a)(8), (a)(9), and (a)(10) of this section, NMFS may allocate any portion of the Reserve category quota for
Page 71604
inseason or annual adjustments to any fishing category quota.
* * * * *
(8) * * *
(x) Optimize fishing opportunity.
(xi) Account for dead discards.
(xii) Facilitate quota accounting.
(xiii) Support other fishing monitoring programs through quota allocations and/or generation of revenue.
(xiv) Support research through quota allocations and/or generation of revenue.
(9) Inseason adjustments. To be effective for all, or a part of a fishing year, NMFS may transfer quotas specified under this section, among fishing categories or, as appropriate, subcategories, based on the criteria in paragraph (a)(8) of this section.
(10) Annual adjustments. (i) Adjustments to category quotas specified under paragraphs (a) (1) through (7) of this section may be made in accordance with the restrictions of this paragraph and ICCAT recommendations. Based on landing, catch statistics, other available information, and in consideration of the criteria in paragraph (a)(8) of this section, if NMFS determines that a bluefin quota for any category or, as appropriate, subcategory has been exceeded (overharvest), NMFS may subtract all or a portion of the overharvest from that quota category or subcategory for the following fishing year. If NMFS determines that a bluefin quota for any category or, as appropriate, subcategory has not been reached (underharvest), NMFS may add all or a portion of the underharvest to, that quota category or subcategory, and/or the Reserve category for the following fishing year. The underharvest that is carried forward may not exceed 100 percent of each category's baseline allocation specified in paragraph (a) of this section, and the total of the adjusted fishing category quotas and the Reserve category quota are consistent with ICCAT recommendations. Although quota may be carried over for the Longline or Purse Seine categories as a whole (at the category level), individual fishery participants that have been allocated individual quota may not carry over such quota from one year to the next, as specified under Sec. 635.15(b)(6) and (7) for the pelagic longline fishery, and under paragraph (a)(4)(iv) of this section for the purse seine fishery.
(ii) NMFS may allocate any quota remaining in the Reserve category at the end of a fishing year to any fishing category, provided such allocation is consistent with the determination criteria specified in paragraph (a)(8) of this section.
(iii) Regardless of the estimated landings in any year, NMFS may adjust the annual school bluefin quota to ensure that the average take of school bluefin over each ICCAT-recommended balancing period does not exceed 10 percent by weight of the total annual U.S. bluefin quota, inclusive of the allocation specified in paragraph (a)(3) of this section (NED), for that period, consistent with ICCAT recommendations.
* * * * *
(e) Northern albacore tuna--(1) Annual quota. Consistent with ICCAT recommendations and domestic management objectives, the total baseline annual fishery quota is 527 mt ww. The total quota, after any adjustments made per paragraph (e)(2) of this section, is the fishing year's total amount of northern albacore tuna that may be landed by persons and vessels subject to U.S. jurisdiction.
(2) Annual adjustments. Consistent with ICCAT recommendations and domestic management objectives, and based on landings statistics and other information as appropriate, if for a particular year the total landings are above or below the annual quota for that year, the difference between the annual quota and the landings will be subtracted from, or added to, the following year's quota, respectively, or subtracted or added through a delayed, or multi-year adjustment. Carryover adjustments shall be limited to 25 percent of the baseline quota allocation for that year. NMFS will file with the Office of the Federal Register for publication any adjustment or apportionment made under this paragraph (e)(2).
0
15. In Sec. 635.28, paragraph (a) is revised; and paragraphs (b)(6), (c)(3), and (d) are added to read as follows:
Sec. 635.28 Fishery closures.
(a) Bluefin tuna. (1) When a bluefin tuna quota specified in Sec. 635.27(a), is reached, or is projected to be reached, NMFS will file a closure action with the Office of the Federal Register for publication. On and after the effective date and time of such action, for the remainder of the fishing year or for a specified period as indicated in the notice, fishing for, retaining, possessing, or landing bluefin tuna under that quota is prohibited until the opening of the subsequent quota period or until such date as specified in the notice.
(2) If NMFS determines that variations in seasonal distribution, abundance, or migration patterns of bluefin, or the catch rate in one area, precludes participants in another area from a reasonable opportunity to harvest any allocated domestic category quota, as stated in Sec. 635.27(a), NMFS may close all or part of the fishery under that category. NMFS may reopen the fishery at a later date if NMFS determines that reasonable fishing opportunities are available, e.g., bluefin have migrated into the area or weather is conducive for fishing. In determining the need for any such interim closure or area closure, NMFS will also take into consideration the criteria specified in Sec. 635.27(a)(8).
(3) When the Atlantic Tunas Longline category quota is reached, projected to be reached, or exceeded, or when there is high uncertainty regarding the estimated or documented levels of bluefin tuna catch, NMFS will file a closure action with the Office of the Federal Register for publication. On and after the effective date and time of such action, for the remainder of the fishing year or for a specified period as indicated in the closure action, vessels that have been issued or are required to have a limited access permit under Sec. 635.4 and that have pelagic longline gear onboard are prohibited from leaving port, regardless of the amount of bluefin tuna quota allocation remaining to each vessel or the amount of fishery quota remaining for other species. In addition to providing notice in the Federal Register, NMFS will also notify vessels of any closures and their timing via VMS and may use other electronic methods, such as email. Vessels would be required to return to port prior to the closure date/time. When considering whether to close or reopen the Longline category quota, NMFS may consider the following factors:
(i) Total estimated bluefin tuna catch (landings and dead discards) in relation to the quota;
(ii) The estimated amount by which the bluefin tuna quota might be exceeded;
(iii) The usefulness of data relevant to monitoring the quota;
(iv) The uncertainty in the documented or estimated dead discards or landings of bluefin tuna;
(v) The amount of bluefin tuna landings or dead discards within a short time;
(vi) The effects of continued fishing on bluefin tuna rebuilding and overfishing;
(vii) The provision of reasonable opportunity for pelagic longline vessels to pursue the target species;
(viii) The variations in seasonal distribution, abundance or migration patterns of bluefin tuna; and
Page 71605
(viii) Other relevant factors.
(b) * * *
(6) If the Atlantic Tunas Longline category quota is closed as specified in paragraph (a)(4) of this section, vessels that have pelagic longline gear on board cannot possess or land sharks.
* * * * *
(c) * * *
(3) Bluefin tuna Longline category closure. If the Atlantic Tunas Longline category quota is closed as specified in paragraph (a)(4) of this section, vessels that have pelagic longline gear on board cannot possess or land any North Atlantic swordfish or bluefin tuna.
(d) Northern albacore tuna--When the annual fishery quota specified in Sec. 635.27(e) is reached, or is projected to be reached, NMFS will file a closure action with the Office of the Federal Register for publication. When the fishery for northern albacore tuna is closed, northern albacore tuna may not be retained. If the Atlantic Tunas Longline category quota is closed as specified in paragraph (a)(4) of this section, vessels that have pelagic longline gear on board cannot possess or land any northern albacore tuna.
0
16. In Sec. 635.31, paragraphs (a)(1) and (2), (c)(1) and (4), and (d)(1) and (2) are revised to read as follows:
Sec. 635.31 Restrictions on sale and purchase.
(a) * * *
(1) A person that owns or operates a vessel from which an Atlantic tuna is landed or offloaded may sell such Atlantic tuna only if that vessel has a valid HMS Charter/Headboat permit; a valid General, Harpoon, Longline, Purse Seine, or Trap category permit for Atlantic tunas; or a valid HMS Commercial Caribbean Small Boat permit issued under this part and the appropriate category has not been closed, as specified at Sec. 635.28(a). However, no person may sell a bluefin tuna smaller than the large medium size class. Also, no large medium or giant bluefin tuna taken by a person aboard a vessel with an Atlantic HMS Charter/Headboat permit fishing in the Gulf of Mexico at any time, or fishing outside the Gulf of Mexico when the fishery under the General category has been closed, may be sold (see Sec. 635.23(c)). A person may sell Atlantic bluefin tuna only to a dealer that has a valid permit for purchasing Atlantic bluefin tuna issued under this part. A person may not sell or purchase Atlantic tunas harvested with speargun fishing gear.
(2) Dealers may purchase Atlantic tunas only from a vessel that has a valid commercial permit for Atlantic tunas issued under this part in the appropriate category and the appropriate category has not been closed, as specified at Sec. 635.28(a).
(i) Dealers may purchase Atlantic bluefin tuna only from a vessel that has a valid Federal commercial permit for Atlantic tunas issued under this part in the appropriate category. Vessel owners and operators of vessels that have been issued an Atlantic Tunas Longline category permit can sell bluefin tuna and dealers can purchase bluefin tuna from such vessels only if the Longline category is open, per Sec. 635.28(a) and if:
(A) The vessel has met the minimum quota allocation and accounting requirements at Sec. 635.15(b)(4) and (5) for vessels departing on a trip with pelagic longline gear aboard, and
(B) The dealer and vessel have met the IBQ program participant requirements at Sec. 635.15(a)(2).
(ii) Dealers may first receive BAYS tunas only if they have submitted reports to NMFS according to reporting requirements at Sec. 635.5(b)(1)(ii), and only from a vessel that has a valid Federal commercial permit for Atlantic tunas issued under this part in the appropriate category. Vessel owners and operators of vessels that have been issued an Atlantic Tunas Longline category permit can sell BAYS tunas and dealers can purchase BAYS tunas from such vessels only if the Longline category is open per Sec. 635.28(a). Individuals issued a valid HMS Commercial Caribbean Small Boat permit, and operating in the U.S. Caribbean as defined at Sec. 622.2 of this chapter, may sell their trip limits of BAYS tunas, codified at Sec. 635.24(c), to dealers and non-dealers. Persons may only sell albacore tuna and dealers may only first receive albacore tuna if the northern albacore tuna fishery has not been closed as specified at Sec. 635.28 (d).
* * * * *
(c) * * *
(1) Persons that own or operate a vessel that possesses a shark from the management unit may sell such shark only if the vessel has a valid commercial shark permit issued under this part. Persons may possess and sell a shark only to a federally-permitted dealer and only when the fishery for that species, management group, and/or region has not been closed, as specified in Sec. 635.28(b). Persons that own or operate a vessel that has pelagic longline gear onboard can only possess and sell a shark if the Atlantic Tunas Longline category has not been closed, as specified in Sec. 635.28(a).
* * * * *
(4) Only dealers who have a valid a Federal Atlantic shark dealer permit and who have submitted reports to NMFS according to reporting requirements at Sec. 635.5(b)(1)(ii) may first receive a shark from an owner or operator of a vessel that has, or is required to have, a valid federal Atlantic commercial shark permit issued under this part. Atlantic shark dealers may purchase, trade for, barter for, or receive a shark from an owner or operator of a vessel who does not have a federal Atlantic commercial shark permit if that vessel fishes exclusively in state waters. Atlantic shark dealers may first receive a sandbar shark only from an owner or operator of a vessel who has a valid shark research permit and who had a NMFS-approved observer on board the vessel for the trip in which the sandbar shark was collected. Atlantic shark dealers may first receive a shark from an owner or operator of a fishing vessel who has a valid commercial shark permit issued under this part only when the fishery for that species, management group, and/or region has not been closed, as specified in Sec. 635.28(b). Atlantic shark dealers may first receive a shark from a vessel that has pelagic longline gear onboard only if the Atlantic Tunas Longline category has not been closed, as specified in Sec. 635.28(a).
* * * * *
(d) * * *
(1) Persons that own or operate a vessel on which a swordfish in or from the Atlantic Ocean is possessed may sell such swordfish only if the vessel has a valid commercial permit for swordfish issued under this part. Persons may offload such swordfish only to a dealer who has a valid permit for swordfish issued under this part; except that individuals issued a valid HMS Commercial Caribbean Small Boat permit, and operating in the U.S. Caribbean as defined at Sec. 622.2 of this chapter, may sell swordfish, as specified at Sec. 635.24(b)(3), to non-dealers. Persons that own or operate a vessel that has pelagic longline gear onboard can only possess and sell a swordfish if the Atlantic Tunas Longline category has not been closed, as specified in Sec. 635.28(a)(4).
(2) Atlantic swordfish dealers may first receive a swordfish harvested from the Atlantic Ocean only from an owner or operator of a fishing vessel that has a valid commercial permit for swordfish issued under this part, and only if the dealer has submitted reports to NMFS according to reporting requirements of Sec. 635.5(b)(1)(ii). Atlantic swordfish dealers may first receive a swordfish from a vessel that has pelagic longline gear onboard only if the Atlantic Tunas
Page 71606
Longline category has not been closed, as specified in Sec. 635.28(a)(4).
0
17. In Sec. 635.34, paragraphs (a), (b) and (d) are revised to read as follows:
Sec. 635.34 Adjustment of management measures.
(a) NMFS may adjust the IBQ shares or resultant allocations for bluefin tuna, as specified in Sec. 635.15; catch limits for bluefin tuna, as specified in Sec. 635.23; the quotas for bluefin tuna, shark, swordfish, and northern albacore tuna, as specified in Sec. 635.27; the regional retention limits for Swordfish General Commercial permit holders, as specified at Sec. 635.24; the marlin landing limit, as specified in Sec. 635.27(d); and the minimum sizes for Atlantic blue marlin, white marlin, and roundscale spearfish, as specified in Sec. 635.20.
(b) In accordance with the framework procedures in the 2006 Consolidated HMS FMP, NMFS may establish or modify for species or species groups of Atlantic HMS the following management measures: Maximum sustainable yield or optimum yield based on the latest stock assessment or updates in the SAFE report; domestic quotas; recreational and commercial retention limits, including target catch requirements; size limits; fishing years or fishing seasons; shark fishing regions or regional quotas; species in the management unit and the specification of the species groups to which they belong; species in the prohibited shark species group; classification system within shark species groups; permitting and reporting requirements; workshop requirements; the IBQ shares or resultant allocations for bluefin tuna; administration of the IBQ Program (including but not limited to requirements pertaining to leasing of IBQ allocations, regional or minimum IBQ share requirements, IBQ share caps (individual or by category), permanent sale of shares, NED IBQ rules, etc.); time/area restrictions; allocations among user groups; gear prohibitions, modifications, or use restriction; effort restrictions; observer coverage requirements; EM requirements; essential fish habitat; and actions to implement ICCAT recommendations, as appropriate.
* * * * *
(d) When considering a framework adjustment to add, change, or modify time/area closures and/or gear restricted areas, NMFS will consider, consistent with the FMP, the Magnuson-Stevens Act and other applicable law, but is not limited to the following criteria: Any Endangered Species Act related issues, concerns, or requirements, including applicable BiOps; bycatch rates of protected species, prohibited HMS, or non-target species both within the specified or potential closure area(s) and throughout the fishery; bycatch rates and post-release mortality rates of bycatch species associated with different gear types; new or updated landings, bycatch, and fishing effort data; evidence or research indicating that changes to fishing gear and/or fishing practices can significantly reduce bycatch; social and economic impacts; and the practicability of implementing new or modified closures compared to other bycatch reduction options. If the species is an ICCAT managed species, NMFS will also consider the overall effect of the U.S.'s catch on that species before implementing time/area closures, gear restricted areas, or access to closed areas.
0
18. In Sec. 635.69, paragraph (a) introductory text and paragraphs (a)(1) and (4) are revised; and paragraph (e)(4) is added to read as follows:
Sec. 635.69 Vessel monitoring systems.
(a) Applicability. To facilitate enforcement of time/area and fishery closures, enhance reporting, and support the IBQ Program (Sec. 635.15), an owner or operator of a commercial vessel permitted, or required to be permitted, to fish for Atlantic HMS under Sec. 635.4 and that fishes with pelagic or bottom longline, gillnet, or purse seine gear, is required to install a NMFS-approved enhanced mobile transmitting unit (E-MTU) vessel monitoring system (VMS) on board the vessel and operate the VMS unit under the circumstances listed in paragraphs (a)(1) through (a)(4) of this section. For purposes of this section, a NMFS-approved E-MTU VMS is one that has been approved by NMFS as satisfying its type approval listing for E-MTU VMS units. Those requirements are published in the Federal Register and may be updated periodically.
(1) Whenever the vessel has pelagic longline or purse seine gear on board;
* * * * *
(4) A vessel is considered to have pelagic or bottom longline gear on board, for the purposes of this section, when the gear components as specified at Sec. 635.2 are on board. A vessel is considered to have gillnet gear on board, for the purposes of this section, when gillnet, as defined in Sec. 600.10 of this chapter, is on board a vessel that has been issued a shark LAP. A vessel is considered to have purse seine gear on board, for the purposes of this section, when the gear as defined at Sec. 600.10 is onboard a vessel that has been issued an Atlantic Tunas Purse Seine category permit.
* * * * *
(e) * * *
(4) Bluefin tuna and fishing effort reporting requirements for vessels fishing either with pelagic longline gear or purse seine gear--
(i) Pelagic longline gear. The vessel owner or operator of a vessel that has pelagic longline gear on board must report to NMFS using the attached VMS terminal, or using an alternative method specified by NMFS as follows: For each set, as instructed by NMFS, the date and area of the set, the number of hooks and the length of all bluefin retained (actual), and the length of all bluefin tuna discarded dead or alive (approximate), must be reported within 12 hours of the completion each pelagic longline haul-back.
(ii) Purse Seine gear. The vessel owner or operator of a vessel that has purse seine gear on board must report to NMFS using the attached VMS terminal, or using an alternative method specified by NMFS as follows: For each purse seine set, as instructed by NMFS, the date and area of the set, and the length of all bluefin retained (actual), and the length of all bluefin tuna discarded dead or alive (approximate), must be reported within 12 hours of the completion of the retrieval of each set.
* * * * *
0
19. In Sec. 635.71:
0
-
Paragraphs (a)(14), (a)(19), (a)(23), (a)(31), (a)(33), (a)(34), and (a)(40) are revised;
0
-
Paragraphs (a)(57) through (60) are added;
0
-
Paragraphs (b)(5), (b)(7), (b)(8), (b)(13), (b)(17), (b)(23), (b)(36), and (b)(38) are revised;
0
-
Paragraphs (b)(41) through (59) are added; and
0
-
Paragraphs (c)(1) and (7), (d)(12) and (13), and (e)(8), (e)(11), (e)(16) and (e)(18) are revised.
The revisions and additions read as follows:
Sec. 635.71 Prohibitions
* * * * *
(a) * * *
(14) Fail to install, activate, repair, or replace a NMFS-approved E-MTU vessel monitoring system prior to leaving port with pelagic longline gear, bottom longline gear, gillnet gear, or purse seine gear on board the vessel as specified in Sec. 635.69.
* * * * *
(19) Utilize secondary gears as specified in Sec. 635.19(a) to capture, or attempt to capture, any undersized or free swimming Atlantic HMS, or fail to
Page 71607
release a captured Atlantic HMS in the manner specified in Sec. 635.21(a).
* * * * *
(23) Fail to comply with the restrictions on use of pelagic longline, bottom longline, gillnet, buoy gear, speargun gear, or green-
stick gear as specified in Sec. 635.21.
* * * * *
(31) Deploy or fish with any fishing gear from a vessel with a pelagic longline on board in any closed or gear restricted areas during the time period specified at Sec. 635.21(c), except under the conditions listed at Sec. 635.21 (c)(3).
* * * * *
(33) Deploy or fish with any fishing gear from a vessel with pelagic or bottom longline gear on board without carrying the required sea turtle bycatch mitigation gear, as specified at Sec. 635.21(c)(5)(i) for pelagic longline gear and Sec. 635.21(d)(2) for bottom longline gear. This equipment must be utilized in accordance with Sec. 635.21(c)(5)(ii) and (d)(2) for pelagic and bottom longline gear, respectively.
(34) Fail to disengage any hooked or entangled sea turtle with the least harm possible to the sea turtle as specified at Sec. 635.21 (c)(5) or (d)(2).
* * * * *
(40) Deploy or fish with any fishing gear, from a vessel with bottom longline gear on board, without carrying a dipnet, line clipper, and dehooking device as specified at Sec. 635.21(d)(2).
* * * * *
(57) Fail to appropriately stow longline gear when transiting a closed or gear restricted area, as specified in Sec. 635.21(b)(2).
(58) Fish with pelagic longline gear in the Cape Hatteras Gear Restricted area if not determined by NMFS to be ``qualified'' under Sec. 635.21(c)(3).
(59) Fish for, retain, possess, or land any HMS from a vessel with a pelagic longline on board when the Atlantic Tunas Longline category fishery is closed, as specified in Sec. 635.28(a)(3), (b)(6), (c)(3), and (d).
(60) Buy, trade, or barter for any HMS from a vessel with pelagic longline gear is on board when the Atlantic Tunas Longline category fishery is closed, as specified in Sec. 635.31(a)(2), (c), and (d).
(b) * * *
(5) Fail to report a large medium or giant bluefin tuna that is not sold, as specified in Sec. 635.5(a)(3), or fail to report a bluefin tuna that is sold, as specified in Sec. 635.5(a)(4).
* * * * *
(7) Fish for, catch, retain, or possess a bluefin tuna with gear not authorized for the category permit issued to the vessel or to have such gear on board when in possession of a bluefin tuna, as specified in Sec. 635.19(b).
(8) Fail to request an inspection of a purse seine vessel, as specified in Sec. 635.21(e)(2).
* * * * *
(13) As a vessel with an Atlantic Tunas General category permit, fail to immediately cease fishing and immediately return to port after catching the applicable limit of large medium or giant bluefin tuna on a commercial fishing day, as specified in Sec. 635.23(a)(3).
* * * * *
(17) As a vessel with an Atlantic Tunas Purse Seine category permit, catch, possess, retain, or land bluefin in excess of its allocation of the Purse Seine category quota as specified in Sec. 635.23(e), or fish for bluefin under that allocation prior to the commencement date of the directed bluefin purse seine fishery as specified in Sec. 635.27(a)(4).
* * * * *
(23) Fish for, catch, possess, or retain a bluefin tuna, except as specified under Sec. 635.23(f), or if taken incidental to recreational fishing for other species and retained in accordance with Sec. 635.23(b) and (c).
* * * * *
(36) Possess J-hooks onboard a vessel that has pelagic longline gear onboard, and that has been issued, or is required to have, a limited access swordfish, shark, or Atlantic Tunas Longline category permit for use in the Atlantic Ocean, including the Caribbean Sea and the Gulf of Mexico, except when green-stick gear is onboard, as specified at Sec. 635.21(c)(2)(vii)(A) and (c)(5)(iii)(C)(3).
* * * * *
(38) Possess more than 20 J-hooks onboard a vessel that has been issued, or is required to have, a limited access swordfish, shark, or tuna Longline category permit for use in the Atlantic Ocean, including the Caribbean Sea and the Gulf of Mexico, when possessing onboard both pelagic longline gear and green-stick gear as defined at Sec. 635.2.
* * * * *
(41) Fail to report bluefin catch by pelagic longline or purse seine gear, through VMS as specified at Sec. 635.69(e)(4).
(42) Fail to report all dead discards or landings of bluefin through the NMFS electronic catch reporting system within 24 hours of landing or the end of the trip as specified at Sec. 635.5(a)(4).
(43) Fish for, retain, possess, or land albacore tuna when the fishery is closed, as specified in Sec. 635.28(d).
(44) Buy, purchase, trade, or barter for albacore tuna when the fishery is closed, as specified in Sec. 635.31(a)(2)(ii).
(45) Fail to comply with landing report requirements, as specified under Sec. 635.5(b)(2)(i)(A).
(46) Deploy or fish with any fishing gear from a vessel with a pelagic longline on board that does not have an approved and working EM system as specified in Sec. 635.9; tamper with, or fail to install, operate or maintain one or more components of the EM system; obstruct the view of the camera(s); or fail to handle bluefin tuna in a manner that allows the camera to record the fish; as specified in Sec. 635.9.
(47) Depart on a fishing trip or deploy or fish with any fishing gear from a vessel with a pelagic longline on board without a minimum amount of IBQ allocation available for that vessel, as specified in Sec. 635.15(b)(3), as applicable.
(48) Depart on a fishing trip or deploy or fish with any fishing gear from a vessel with a pelagic longline on board without accounting for bluefin caught on a previous trip as specified in Sec. 635.15(b)(4)(ii).
(49) Lease bluefin quota allocation to or from the owner of a vessel not issued a valid Atlantic Tunas Longline permit or not an Atlantic Tunas Purse Seine participant as specified under Sec. 635.15(c)(1).
(50) Fish in the Gulf of Mexico with pelagic longline gear on board if the vessel has only designated Atlantic IBQ allocation, as specified under Sec. 635.15(b)(2).
(51) Depart on a fishing trip or deploy or fish with any fishing gear from a vessel with a pelagic longline on board in the Gulf of Mexico, without a minimum amount of designated GOM IBQ allocation available for that vessel, as specified in Sec. 635.15(b)(3).
(52) If leasing IBQ allocation, fail to provide all required information on the application, as specified under Sec. 635.15(c)(2).
(53) Lease IBQ allocation in an amount that exceeds the amount of IBQ allocation associated with the lessor, as specified under Sec. 635.15(c)(2).
(54) Sell quota share, as specified under Sec. 635.15(d).
(55) Fail to provide bluefin tuna landings and dead discard information as specified at Sec. 635.15(b)(4)(iii).
(56) Fish with or have pelagic longline gear on board if any trip level quota debt associated with the vessel from a preceding trip has not been settled, as specified at Sec. 635.15(b)(5)(i).
(57) Lease IBQ allocation during the period from 6 p.m. December 31 to 2
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p.m. January 1 (Eastern Time) as specified at Sec. 635.15(c)(3)(iv).
(58) Lease IBQ allocation if the conditions of paragraph Sec. 635.15(c)(2) are not met.
(59) Fish with or have pelagic longline gear on board if any annual level quota debt associated with the vessel from a preceding year has not been settled, as specified at Sec. 635.15(b)(5)(ii).
(c) * * *
(1) As specified in Sec. 635.19(c), retain a billfish harvested by gear other than rod and reel, or retain a billfish on board a vessel unless that vessel has been issued an Atlantic HMS Angling or Charter/
Headboat permit or has been issued an Atlantic Tunas General category permit and is participating in a tournament in compliance with Sec. 635.4(c).
* * * * *
(7) Deploy a J-hook or an offset circle hook in combination with natural bait or a natural bait/artificial lure combination when participating in a tournament for, or including, Atlantic billfish, as specified in Sec. 635.21(f).
* * * * *
(d) * * *
(12) Fish for Atlantic sharks with unauthorized gear or possess Atlantic sharks on board a vessel with unauthorized gear on board as specified in Sec. 635.19(d).
(13) Fish for Atlantic sharks with a gillnet or possess Atlantic sharks on board a vessel with a gillnet on board, except as specified in Sec. 635.21(g).
* * * * *
(e) * * *
(8) Fish for North Atlantic swordfish from, possess North Atlantic swordfish on board, or land North Atlantic swordfish from a vessel using or having on board gear other than pelagic longline, green-stick gear, or handgear, except as specified at Sec. 635.19(e).
* * * * *
(11) As the owner of a vessel permitted, or required to be permitted, in the swordfish directed, swordfish handgear limited access permit category, or issued a valid HMS Commercial Caribbean Small Boat permit and utilizing buoy gear, to possess or deploy more than 35 individual floatation devices, to deploy more than 35 individual buoy gears per vessel, or to deploy buoy gear without affixed monitoring equipment, as specified at Sec. 635.21(h).
* * * * *
(16) Possess any HMS, other than Atlantic swordfish, harvested with buoy gear as specified at Sec. 635.19 unless issued a valid HMS Commercial Caribbean Small Boat permit and operating within the U.S. Caribbean as defined at Sec. 622.2 of this chapter.
* * * * *
(18) As the owner of a vessel permitted, or required to be permitted, in the Swordfish General Commercial permit category, possess North Atlantic swordfish taken from its management unit by any gear other than rod and reel, handline, bandit gear, green-stick, or harpoon gear, as specified in Sec. 635.19(e).
FR Doc. 2014-28064 Filed 12-1-14; 8:45 am
BILLING CODE 3510-22-P
