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Rule2022-21167

Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries Management

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Published

October 3, 2022

Effective

January 1, 2023

Issuing agencies

Commerce DepartmentNational Oceanic and Atmospheric Administration

Abstract

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

Full Text

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[Federal Register Volume 87, Number 190 (Monday, October 3, 2022)]
[Rules and Regulations]
[Pages 59966-60008]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-21167]

[[Page 59965]]

Vol. 87

Monday,

No. 190

October 3, 2022

Part III

Department of Commerce

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National Oceanic and Atmospheric Administration

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50 CFR Parts 600 and 635

Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries
Management; Final Rule

Federal Register / Vol. 87 , No. 190 / Monday, October 3, 2022 /
Rules and Regulations

[[Page 59966]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 635

[Docket No. 220919-0193]
RIN 0648-BI08

Atlantic Highly Migratory Species; Atlantic Bluefin Tuna
Fisheries Management

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

ACTION: Final rule.

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

DATES: This final rule is effective on January 1, 2023.

ADDRESSES: Copies of the supporting documents, including the final
environmental impact statement (FEIS), Regulatory Impact Review (RIR),
Final Regulatory Flexibility Analysis (FRFA), the Three-Year Review of
the IBQ Program, and the 2006 Consolidated HMS FMP and amendments are
available from the HMS website at <a href="https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species">https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species</a>.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final rule may be submitted to the HMS Management Division and to
<a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find these particular information
collections by selecting ``Currently under 30-day Review--Open for
Public Comments'' or by using the search function.

FOR FURTHER INFORMATION CONTACT: Tom Warren--(978) 281-9260
(<a href="/cdn-cgi/l/email-protection#d783bfb8bab6a4f980b6a5a5b2b997b9b8b6b6f9b0b8a1">[email&#160;protected]</a>); Larry Redd--(301) 427-8503
(<a href="/cdn-cgi/l/email-protection#1f537e6d6d66314d7a7b7b5f71707e7e31787069">[email&#160;protected]</a>); Ian Miller--(301) 427-8503
(<a href="/cdn-cgi/l/email-protection#feb79f90d0b39792929b8cbe90919f9fd0999188">[email&#160;protected]</a>); or Karyl Brewster-Geisz--(301) 427-8503
(<a href="/cdn-cgi/l/email-protection#5d163c2f2431731f2f382a2e29382f701a38342e271d33323c3c733a322b">[email&#160;protected]</a>).

SUPPLEMENTARY INFORMATION:

Background

The Atlantic bluefin fisheries are managed under the authority of
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) (16 U.S.C. 1801 et seq.) and the Atlantic Tunas Convention
Act (ATCA) (16 U.S.C. 971 et seq.). The 2006 Consolidated HMS FMP and
its amendments are implemented by regulations at 50 CFR part 635. This
final rule implements changes to the bluefin fishery under Amendment 13
to the 2006 Consolidated HMS FMP (Amendment 13). Additional information
regarding bluefin management can be found in the Final Amendment 13
(which includes an FEIS, RIR and FRFA); Draft Amendment 13 (which
includes a draft environmental impact statement (DEIS), draft RIR, and
Initial Regulatory Flexibility Analysis (IRFA)) and proposed rule (86
FR 27686; May 21, 2021); the 2006 Consolidated HMS FMP and its
amendments; the annual HMS Stock Assessment and Fishery Evaluation
(SAFE) Reports, and online at: <a href="https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species">https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species</a>.
In 2015, NMFS published a final rule implementing Amendment 7 to
the 2006 Consolidated HMS FMP (Amendment 7) (79 FR 71510; December 2,
2014). That final rule implemented substantial changes to the
regulation of bluefin fisheries including the creation of the IBQ
Program. In 2019, NMFS completed its Three-Year Review of the IBQ
Program (referred to hereafter as the ``Three-Year Review''). The
Three-Year Review found that the IBQ Program was successful in limiting
bluefin incidental catch in the pelagic longline fishery, and providing
flexibility in the IBQ system; however, it is likely that the IBQ
Program also contributed to reduced revenue and fishing effort during
2015 to 2017. Further, the Three-Year Review noted that a different
method of IBQ share distribution may warrant consideration. After
releasing the Three-Year Review and considering other changes
throughout the fishery, NMFS conducted scoping to consider addition
changes to the bluefin fishery (84 FR 23020, May 21, 2019).
On May 21, 2021, NMFS published a proposed rule (86 FR 27686) and
released Draft Amendment 13, which included a Draft Environmental
Impact Statement (DEIS), and the Environmental Protection Agency (EPA)
published a Notice of Availability of the DEIS (86 FR 27593). The
proposed rule and Draft Amendment 13 contain background information on
the potential changes to the fishery that are not repeated here. The
original comment period on the proposed rule ended on July 20, 2021.
Based on public requests, the comment period was extended until
September 20, 2021 (86 FR 38262, July 20, 2021). NMFS held three public
hearing webinars between June 8 and July 14, 2021 (86 FR 3087, June 7,
2021), and briefed the Gulf of Mexico, Mid-Atlantic, and New England
Fishery Management Councils. NMFS held two discussions on Amendment 13
with the HMS Advisory Panel (May 25, 2021 and September 9, 2021).
During the comment period, NMFS received 47 written comments from
individual members of the public and a variety of entities including
industry associations, environmental organizations, and states. A
summary of these comments and NMFS' responses are found below.
Taking into consideration public comment, NMFS prepared Final
Amendment 13, which included an FEIS, RIR, and FRFA, and which analyzed
the anticipated environmental, social, and economic impacts of a range
of alternatives. NMFS considered 29 alternatives and is implementing 21
measures in this final rule. A summary of the preferred alternatives is
provided below. The full list of alternatives and their analyses are
provided in Final Amendment 13 and are not repeated here.
Overall, the objectives of this final rule and Amendment 13 are to:
(1) Evaluate and optimize the allocation of U.S. bluefin quota among
bluefin quota categories considering historical allocations and use,
and recent fishery characteristics and trends, to provide U.S. fishing
vessels with a reasonable opportunity to harvest the U.S. quota
established by ICCAT, facilitate the ability for active HMS directed
permit categories to harvest their full bluefin quota allocations, and
facilitate directed fishing for species other than bluefin in the
pelagic longline fishery while accounting for incidental bluefin catch;
(2) Maintain flexibility of the regulations to account for the highly
variable nature of the bluefin fisheries, and maintain fairness among
permit/

[[Page 59967]]

quota categories; (3) Continue to manage the Atlantic pelagic longline
fishery consistent with the IBQ Program objectives in Amendment 7 and
consistent with the conservation and management objectives of the 2006
Consolidated HMS FMP and its amendments, and consistent with all
applicable laws; and (4) Modify the management of the pelagic longline
fishery in response to the Three-Year Review and in response to
important relevant prevailing trends (e.g., declining fishing effort
and revenue for target species). This final rule implements the
preferred alternatives identified in the Final Amendment 13/FEIS.
In developing the final measures, NMFS considered these objectives,
public comments on the proposed rule and Draft Amendment 13 (which
included a DEIS, draft RIR, and IRFA); input from the HMS Advisory
Panel; and the FEIS, RIR and FRFA analyses. In response to public
comment on the proposed rule and Draft Amendment 13/DEIS, NMFS made
numerous changes from the proposed rule in the final rule. The first
change implements a dynamic determination of IBQ shares based upon each
individual permitted vessel's fishing effort using the number of
pelagic longline sets, relative to the total amount of pelagic longline
sets fishery-wide, as the measure of fishing effort. A second change is
the authorization of a potential, future set-aside of a de minimis
amount of bluefin quota for new entrants as part of the IBQ Program. A
third change includes a low ``Gulf of Mexico'' (GOM) designated IBQ
share threshold of five percent. A fourth change is the requirement for
vessel owners to pay for the cost of boom installation because funds
are not available from the Agency. A fifth change is the reallocation
of the Purse Seine category quota proportionally to all of the other
bluefin categories, including Reserve, Longline, and Trap. A sixth
change is the adoption of a slightly different Harpoon category daily
retention limit measure than was in the proposed rule. A seventh change
is a regulatory clarification: adding to the prohibition section an
existing requirement that vessels with pelagic longline gear on board
are required to retain and land all dead large medium or giant bluefin.
All other proposed measures, as well as the proposed abbreviations for
curved fork length, Northeast Distant Area, bluefin tuna, electronic
monitoring and individual bluefin tuna program, definitions for
``vessel monitoring plan'' and ``curved fork length'', and elimination
of the minimum 3-day period between filing a BFT inseason action with
the Office of Federal Register and the effective date of the action (50
CFR 635.23(a)(4), (b)(3)) did not change between the proposed and final
rules. Measures that are different from the proposed rule are described
in detail in the section titled, ``Changes from the Proposed Rule.''
NMFS has determined that Amendment 13 and its final rule will not
have new or different effects on Endangered Species Act (ESA)-listed
endangered or threatened species or designated critical habitat beyond
those analyzed in the May 2020 Biological Opinion on the Operation of
the Atlantic Highly Migratory Species (HMS) Fisheries Excluding Pelagic
Longline and the May 2020 Biological Opinion on the Atlantic HMS
Pelagic Longline Fishery. However, in July 2022, NMFSNOAA Fisheries,
requested reinitiation of consultation on the effects of the Atlantic
HMS pelagic longline fishery due to new information on mortality of
giant manta ray that exceeded the mortality anticipated in the 2020
Biological Opinion on that fishery. The anticipated consultation will
consider the effects of the 2006 Consolidated HMS FMP and relevant
amendments, including Amendment 13, and relevant implementing
regulations. Pending completion of consultation, the fishery continues
to operate consistent with the Reasonable and Prudent Measures (RPMs)
and Terms and Conditions specified in the May 2020 Biological Opinion,
and NMFSNOAA Fisheries will continue to monitor any take of giant manta
rays in the fishery. Actions within the scope of the May 2020
Biological Opinion and consistent with the RPMs and Terms and
Conditions are not likely to jeopardize the species during
consultation, consistent with section 7(a)(2) of the ESA. Giant manta
ray interactions with the Atlantic HMS pelagic longline fishery are
low, with total takes estimated to be well below the levels of takes
authorized under the incidental take statement in the 2020 Biological
Opinion. In addition, the species is not thought to be in peril in the
Atlantic, the level of potential mortalities is considered to be low,
and extrapolated mortalities may overstate the fishery's effects on the
species. In accordance with section 7(d) of the ESA, NMFS has
determined that, during consultation, pelagic longline fishery activity
consistent with the existing May 2020 Biological Opinion will not
result in an irretrievable or irreversible commitment of resources
which would have the effect of foreclosing the formulation or
implementation of any reasonable and prudent alternative measures and
that continued compliance with the RPMs and Terms and Conditions in
that biological opinion will avoid jeopardy to ESA-listed species,
consistent with section 7(a)(2) of the ESA.

Final Management Measures

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

Pelagic Longline Fishery

Annual IBQ Share Determination

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

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low GOM-designated share threshold has been triggered. This
notification will represent the initial administrative determination
(IAD) of the permit holder's IBQ share and allocation. An Atlantic
Tunas Longline category permit holder may submit a written petition of
appeal of the following aspects of the IAD: (1) eligibility for quota
shares based on ownership of an active vessel with a valid Atlantic
Tunas Longline category permit; (2) IBQ share percentage; and (3) IBQ
allocations. A permit holder may also appeal NMFS' determination of the
number of pelagic longline sets legally made by its permitted vessel.
However, an adjustment of GOM shares (Sec. 635.15(c)(3)(ii)) or
inseason quota adjustment (Sec. 635.15(e)(3)) is not subject to
appeal. Appeals must be filed with the National Appeals Office (NAO)
within 45 days after the date the IAD is issued, and will be governed
by NAO rules of procedures at 15 CFR part 906.
Appeals based on permit history would be based on NMFS permit
records. NMFS will only use the relevant 36 months of data described in
Sec. 635.15(c) to determine the numbers of pelagic longline sets made.
No other proof of sets or permit history will be considered. Copies of
written documents will be acceptable; NMFS may request the originals at
a later date. NMFS may refer any submitted materials that are of
questionable authenticity to the NMFS Office of Law Enforcement for
investigation. Appeals based on hardship factors will not be
considered. Consistent with most limited effort and catch share
programs, hardship will not be a valid basis for appeal due to the
multitude of potential definitions of hardship and the difficulty and
complexity of administering such criteria in a fair manner. NMFS may
utilize some bluefin quota from the Reserve category to accommodate
permitted vessels that are deemed eligible for shares through the
appeals process, to provide a permitted vessel an increased quota
share.
As described in Amendment 13, this measure provides separate
consideration to participants in the Deepwater Horizon Oceanic Fish
Restoration Project (OFRP) as appropriate. The Deepwater Horizon OFRP
is a program conducted as a partnership between NMFS, the National Fish
and Wildlife Foundation, and pelagic longline fishermen to restore
damage caused by the Deepwater Horizon oil spill. The OFRP program
began after Amendment 7, and was therefore not a consideration in the
determination of IBQ shares in Amendment 7. More information about the
Deepwater Horizon OFRP may be found at <a href="https://www.nfwf.org/programs/deepwater-horizon-oceanic-fish-restoration-project">https://www.nfwf.org/programs/deepwater-horizon-oceanic-fish-restoration-project</a>.
Based on public comment, Amendment 13 also adds to the framework
provisions of the 2006 Consolidated HMS FMP the authority to set aside
a de minimis amount of bluefin quota from the Longline category quota
prior to calculating the annual IBQ allocations (based on the annual
share determinations described above), and the final rule makes a
parallel edit to 50 CFR 635.34(b) (framework procedures). NMFS is not
implementing a set aside through the final rule, thus at this time, the
provision will have no effect on the amount of Longline quota allocated
to Longline category vessels. As needed, NMFS would conduct future
rulemaking and associated analyses to set the precise amount of set
aside, and the requirements, process, and conditions associated with
distributing IBQ allocation to new entrants.

Regional Designations of IBQ Shares

In conjunction with the dynamic IBQ share and allocation measures,
this final rule also modifies the regional Gulf of Mexico and Atlantic
designations, while maintaining a cap on allowable bluefin catch from
the Gulf of Mexico. Currently, IBQ shares and resultant allocations are
designated as either GOM or ``Atlantic'' (ATL) based on the geographic
location of sets used in the determination of those shares and
allocations. Existing regulations provide that only GOM IBQ allocation
may be used to account for bluefin incidentally caught in the Gulf of
Mexico, while either ATL or GOM IBQ allocation may be used to account
for bluefin in the Atlantic. Per Amendment 7, 35 percent of the total
Longline category quota is designated as GOM, and 65 percent designated
as ATL. This final rule continues to cap the amount of quota that can
be designated as GOM at 35 percent and retain the accounting rules for
regional IBQ allocations, but as explained below, provides for
authority to reduce the 35-percent GOM cap, annual adjustment of
regional designations, and a low GOM designed shares threshold. Under
these regulations, if a vessel does not receive GOM designated IBQ
shares and resulting allocation (because the vessel had no pelagic
longline sets in the Gulf of Mexico during the relevant 36 month
period), but wishes to fish in the Gulf of Mexico, they would need to
lease GOM designated IBQ allocation initially. If the vessel fished in
the Gulf of Mexico (using leased GOM IBQ allocation) it would
subsequently be eligible for GOM designated IBQ shares (and allocation)
the following year based on the number of sets fished in the Gulf of
Mexico.
The final rule includes a regulatory mechanism for reducing the 35-
percent default GOM cap, as needed to achieve conservation and
management objectives. A determination to lower the cap would be based
upon consideration of the existing determination criteria used in
making inseason or annual adjustments to quota, which include a wide
range of considerations including consistency with the FMP objectives
(Sec. 635.27(a)(8)). A cap reduction may be for all of a calendar
year, or a portion of it, as appropriate. NMFS would notify the public
of changes to the 35-percent default cap and publish any modification
to the cap in the Federal Register.
Annually, NMFS will determine the total amount of IBQ shares and
resultant allocations for each region based on the geographic location
of sets used in the determination of those shares and allocations. NMFS
will use the relevant 36 months of best available data described above
under Annual IBQ Share Determination. GOM-designated shares thus could
be less than the default 35-percent GOM share cap. If NMFS calculates
that the amount of GOM designated IBQ shares (based on sets) will be
greater than the GOM share cap (i.e., 35 percent (or lower if
adjusted)), NMFS will reduce the GOM designated IBQ shares to equal the
GOM share cap in effect. The reduction in total GOM share percentage
would be achieved through equal proportional reductions among IBQ
shareholders with GOM designated IBQ shares across the four share
percentages. The ATL shares would be increased in an analogous manner,
so that the total share percentages add up to 100 percent. NMFS will
notify affected permit holders of any reductions in their IBQ share
percentage resulting from this adjustment. This adjustment would not be
subject to appeal, because it is not a determination based on the data
associated with an individual shareholder, but based upon the need to
reduce the total amount of IBQ shares across all shareholders,
consistent with the applicable GOM share cap.
Another change since the proposed rule is the addition of a low GOM
designated share threshold, in response to a concern that potential,
future declines in effort in the Gulf of Mexico could result in a very
low percentage of GOM-designated shares in some years and severely
limit operation of the fishery. See comment 8 summary under Response to
Comments below. NMFS

[[Page 59969]]

agrees that such a situation could result in poor functioning or
disruption of the IBQ Program, result in further declines in fishing
effort or participation in the fishery, or prevent utilization of
available IBQ allocation. See response to comment 8 below. In response,
the final rule provides: if the total amount of GOM-designated IBQ
shares is 5 percent or less of the total IBQ shares (ATL plus GOM
shares), NMFS will file an action with the Office of Federal Register
for publication that suspends for that year the requirements to account
for bluefin caught in the Gulf of Mexico with GOM IBQ shares and
resultant allocations and to use GOM IBQ allocation to satisfy the
minimum GOM IBQ allocation requirement. The maximum allowable bluefin
catch from the Gulf of Mexico will be the weight of bluefin associated
with the cap on GOM designated shares (i.e., the default level of 35
percent, or lower if modified). If this level of catch were reached or
projected to be reached, NMFS would prohibit vessels from fishing with
pelagic longline gear in the Gulf of Mexico for the remainder of that
year. When determining the percentage of IBQ shares, NMFS will use the
relevant 36 months of best available data described above under Annual
IBQ Share Determination. If this threshold is triggered, any vessels
fishing in the Gulf of Mexico would still need to account for bluefin
catch (landings or dead discards) and have the minimum IBQ allocation
of 0.25 mt ww (551 lb ww) before departing on the first fishing trip in
a calendar year quarter. However, they may use either GOM or ATL shares
and resultant allocations, received through the dynamic allocation
process or leasing. NMFS will notify vessel owners if the threshold is
triggered when NMFS notifies them of their annual IBQ shares and
allocations.

Cap on IBQ Shares Held or Acquired

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

IBQ Program Dealer Reporting Requirements

This final rule modifies two aspects of the dealer reporting
requirements for the IBQ Program. First, this measure will eliminate
the reporting of bluefin dead discard information by the dealer. The
dealer will continue to be required to enter the data on bluefin
landings into the Catch Shares On-line System via the dealer account.
Second, this measure will eliminate the current requirement that
vessel operators/owners confirm the landing information entered into
the Catch Shares On-line System by the dealer is accurate by entering
the personal identification number (PIN) associated with the vessel
account. This measure will be combined with a new email notification by
NMFS via the Catch Shares On-line System (or a message within the
System) that will inform the vessel owner when a dealer conducts a
bluefin landings transaction with that vessel's IBQ account. This
notification will provide a means of vessel owner oversight of dealer
transactions with their IBQ vessel account.

Measures Related to Electronic Monitoring (EM)

This final rule requires that the vessel operator mail the
electronic monitoring system's hard drive(s) within 48 hours after the
completion of every other trip (every second trip), instead of after
each pelagic longline fishing trip. An exception to this requirement is
that if the hard drive is at capacity (full) after one trip, as
indicated by the EM system, the vessel operator must mail the hard
drive at the end of that trip. And, vessel operators must ensure that
hard drives have the capacity to record the full trip before departing
on a trip. This final rule clarifies and expands the regulations to
require installation of semi-permanent hardware, if necessary, to mount
and install video cameras at locations on vessels to obtain optimal
views. NMFS or its designees, working in conjunction with the vessel
owner/operator, may require relatively minor modifications to the
vessel structure to mount cameras in locations that provide views
required under existing regulations of the vessel and adjacent areas
(50 CFR 635.9(c)). In some cases, NMFS or its designees may require the
installation of the rail camera in a particular location on the
vessel's structure, or installation of hardware such as a boom on a
structure near the vessel's rail for the purpose of obtaining a
different camera angle with the side of the vessel to optimize the view
of the area of the water surface and seaward of the rail, down to the
water surface, where the gear and fish are hauled out of the water. A
boom will likely be a customized piece of hardware that is fixed or
movable (e.g., extended or lowered prior to fishing activities
starting). The details of any camera installation requirement or
protocols will be recorded in the vessel's Vessel Monitoring Plan.
The cost associated with the installation of booms would be paid by
vessel owners (approximately $1,000 or less). The Draft Amendment 13/
DEIS stated that NMFS would pay the costs of boom installation, as
funds are available. In the Final Amendment 13/FEIS, NMFS analyzed the
impacts and determined that boom installation should be paid for by
individual vessel owners, given that appropriated funds are not
available for this purpose. This approach to industry-funded
implementation is consistent with NMFS Service Procedure 04-115-02:
Cost Allocation in Electronic Monitoring Programs for Federally Managed
U.S. Fisheries, which generally specifies the transition of certain
costs to the fishing industry.
The third change made to the electronic monitoring program by this
final rule is a requirement for specific fish handling procedures and
the installation/placement of a measuring grid on deck, in view of one
of the cameras. As instructed and specified by NMFS, the vessel crew
will be required to place retained fish on a mat or carpet with grid
lines or a grid painted on deck in view of the processing camera, so
the video recording included images of the fish on the grid. The grid
may be customized to an individual vessel while also having lines of
standard intervals. The specifications of the measuring grid will be
provided in each individual vessel's Vessel Monitoring Plan (VMP).
During the year following the effective date of this rule, NMFS or the
NMFS-approved contractor will work with the vessel owner of each vessel
to update the VMP. Once the VMP is approved and signed by NMFS or the
NMFS-approved contractor, the vessel owner will have six months to
install the measuring grid as specified in the VMP. The flexibility of
the timing of the full implementation of this measure will provide time
for NMFS and the NMFS-approved contractor to complete more detailed
standardized specifications and the printing of measuring mats/carpets
or customized painting.

[[Page 59970]]

Cost Recovery Program

The Magnuson-Stevens Act provides NMFS the authority for recovering
fees paid by limited access privilege holders of up to three percent of
the ex-vessel value of fish harvested under the limited access
privilege program to cover the incremental costs (incurred by NMFS)
directly related to and in support of management, data collection and
analysis, and enforcement activities for the program (e.g., the IBQ
Program). This final rule implements a flexible cost recovery program.
No fees will be charged if the costs of collecting the fees exceed
estimated fees to be recovered. Annually, NMFS will estimate its
incremental costs associated with the IBQ Program (including costs
associated with administering the cost recovery program) and the total
ex-vessel value of bluefin sold from the pelagic longline fishery
(including bluefin caught with green-stick gear). NMFS will notify the
public whether a cost recovery fee will be charged for the year. If
NMFS determines the annual cost recovery fee is warranted, NMFS will
notify the permit holders that landed bluefin under the IBQ Program,
including those caught with green-stick gear (based on dealer landings
data), of any fees to be charged. Permit holders will be billed based
on the ex-vessel value of the bluefin sold. Permit holders would pay
the cost recovery fee through the Catch Shares On-line System website
and the associated <a href="http://pay.gov">pay.gov</a> link.

Modification of Bluefin Quota Category Allocation Percentages

This final rule changes the mathematical method used in the annual
quota allocation process to achieve a similar result through simpler
means. Under current regulations, each quota category (including the
Longline category) is annually allocated a percentage of the U.S.
bluefin quota after 68 mt (i.e., the historical 68-mt dead discard
allowance, as described in Amendment 7) is subtracted from the baseline
quota and allocated to the Longline category. This process was intended
to have all bluefin quota categories contribute proportionally to the
68 mt provided to the Longline category annually. This final rule
replaces the two-step process of subtracting the 68 mt from the U.S.
baseline quota and then applying the category percentages, with a one-
step process applying slightly revised category allocation percentages.

Purse Seine Category

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

Table 1--Bluefin Quota Categories, Current and Amendment 13 Percentages, and 2023 Allocations
[mt]
----------------------------------------------------------------------------------------------------------------
Current Amendment 13 2023 Allocations
Bluefin quota category percentage percentage (mt)
----------------------------------------------------------------------------------------------------------------
General................................................ 47.1 54 710.7
Angling................................................ 19.7 22.6 297.4
Harpoon................................................ 3.9 4.5 59.2
Longline............................................... 8.1 15.9 209.3
Trap................................................... 0.1 0.1 1.3
Reserve................................................ 2.5 2.9 38.2
--------------------------------------------------------
Total U.S. Baseline Quota.......................... ................. ................. 1,316.14
----------------------------------------------------------------------------------------------------------------

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

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

----------------------------------------------------------------------------------------------------------------
Category Subquotas
----------------------------------------------------------------------------------------------------------------
General............................ ...................... 710.7
January-March......... .............. 37.7..................
June-August........... .............. 355.4.................
September............. .............. 188.3.................
October-November...... .............. 92.4..................
December.............. .............. 37.0..................
Angling............................ ...................... 297.4
School................ 134.1
...................... .............. Reserve............... 24.8
...................... .............. North of 39[deg] 18' 51.6
N. lat.
...................... .............. South of 39[deg] 18' 57.7
N. lat.
Large School/Small 154.1
Medium.
...................... .............. North of 39[deg] 18' 72.7
N. lat.

[[Page 59971]]

...................... .............. South of 39[deg] 18' 81.4
N. lat.
Trophy................ 9.2
...................... .............. Gulf of Maine Trophy 2.3
Area.
...................... .............. Southern New England.. 2.3
...................... .............. Trophy South.......... 2.3
...................... .............. Gulf of Mexico........ 2.3
----------------------------------------------------------------------------------------------------------------
* Due to rounding, the sum of the General category sub-quota period values do not equal 710.7.

Angling Category

This final rule modifies the current Angling category Trophy North
subquota areas and allocations specified at 50 CFR 635.27(a)(1), by
dividing the northern area into two zones: north and south of 42[deg]
N. lat. (off Chatham, MA). These newly-formed areas are named the Gulf
of Maine trophy area and the Southern New England trophy area,
respectively. The net result is that the Trophy quota is divided among
four geographic areas (in the Atlantic and Gulf of Mexico) and each
area will receive an equal amount of quota (i.e., the Angling category
Trophy quota would be divided equally four ways).
To create the new trophy suballocation for the Gulf of Maine trophy
area, NMFS is increasing the allocation for trophy bluefin. Because the
amount of school bluefin (27''- <47'') is limited in the codified
regulations, and in compliance with the ICCAT bluefin recommendation to
limit take to no more than 10 percent of the annual U.S. bluefin quota,
any increase to the trophy subquota will need to be balanced with an
equivalent reduction of the subquota for large school/small medium
bluefin subquota (47''- <73''), which is the remainder of the Angling
category quota once the school bluefin subquota and trophy subquotas
are subtracted. For example, referring to the current Angling category
quota regulations, NMFS will increase the portion of the Angling
category quota allocated for trophy bluefin from 2.3 percent to 3.1
percent. This results in a minor decrease in the amount of allocation
for large school/small medium bluefin (measuring 47''- <73''). Creation
of a Gulf of Maine area and an allocation equivalent to the allocations
for the existing areas will provide additional opportunities for
anglers fishing north of 42[deg] N. lat. where bluefin are available in
summer and fall, including those fishing on HMS Charter/Headboat-
permitted vessels. In recent years the northern trophy area has closed
between late May and early August, with the quota largely filled with
bluefin caught off the states of New York and New Jersey, south of
42[deg] N. lat.

Harpoon Category

This final rule implements a default overall Harpoon category daily
retention limit of 10 commercial-sized bluefin per day or trip (i.e.,
the combined limit of large medium (73''-<81'') and giant (81'' or
greater) would be 10 fish). In addition, this final rule allows NMFS to
adjust the combined daily retention limit between 5 to 10 fish, based
on consideration of the determination criteria at 50 CFR 635.27(a)(8),
in order to avoid closing the fishery. This final rule maintains the
current regulations regarding retention of large medium bluefin (73''-
<81'') (i.e., the range of two (default) to four fish, adjustable
through inseason action). For example, if the combined limit were 10
fish, and 2 large medium fish were retained, then the number of
allowable giant bluefin would be 8.

Permit Category Change Restrictions

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

Green-Stick Gear by Pelagic Longline Vessels

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

Other Regulatory Changes

As described below and in the proposed rule, Amendment 13
implements other regulatory changes that will improve the
administration and enforcement of HMS regulations and that will not
have any environmental, economic or social impacts. The corrections,
clarifications, changes in definitions, and modifications to remove
obsolete cross-references are consistent with the intent of previously
analyzed and approved management measures.
Under 50 CFR 635.2, Definitions, abbreviations were added for
curved fork length, northeast distant area, bluefin tuna, electronic
monitoring and Individual bluefin tuna program. A definition for vessel
monitoring plan is added, and the definition of curved fork length is
clarified.
Under 50 CFR 635.23(a)(4) and (b)(3), which address the process for
inseason changes to the bluefin retention limits, the minimum 3-day
period between filing an action with the Office of Federal Register and
the effective date of the action is eliminated to provide for
additional flexibility, as warranted and supported. The 3-day period
has been in regulations since at least 1999. This rule removes that
minimum period to provide for greater flexibility in management
response for the General category. The General category is very

[[Page 59972]]

dynamic: fish may swim from Massachusetts to Virginia in three days,
there is limited quota and seasonal allocations, and there are high and
variable levels of fishing pressure. Given all of this, NMFS may need
flexibility to more swiftly implement an inseason action that may
provide additional opportunity (in the case of an increased trip
limit), or one to slow a catch rate (in the case of a lowered retention
limit). NMFS will continue to consider each adjustment on a fact-
specific basis, consistent with Administrative Procedure Act
requirements and providing for as much notice as possible.
Under 50 CFR 635.27, the subquota period previously referred to as
the ``January'' subquota period will be changed to ``January through
March'' subquota period to reflect the actual duration of the January
subquota period, which is not changing.

Response to Comments

NMFS received 47 written comments from individual members of the
public, and a variety of entities including industry associations,
environmental organizations, and states. All written comments can be
found at <a href="http://regulations.gov/">http://regulations.gov/</a> by searching for ``0648-BI08''. NMFS
also received comments during the webinars and HMS AP meetings.
Responses to those comments are below. Comments are organized according
to subject.

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

Comment 1

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

Response

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

Comment 2

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

Response

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

Comment 3

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

[[Page 59973]]

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

Response

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

Comment 4

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

Response

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

Comment 5

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

[[Page 59974]]

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

Response

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

Comment 6

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

Response

NMFS has concluded that the determination of IBQ shares based on
vessel sets will enhance the continued success of the IBQ allocation
leasing market, and therefore IBQ allocation will be available to new
entrants to the fishery that do not have IBQ shares at the time of
entry into the fishery. Under dynamic share determination, a new
entrant to the fishery would need to lease IBQ allocation during the
first year of their participation in the pelagic longline fishery.
During the second year of participation, the vessel's share percentage
would be based on the number of pelagic longline sets relative to the
total fishery (during the previous three years). Since 2015 there have
been participants in the fishery that were not shareholders, who have
relied on leased IBQ allocations from shareholders in order to fish and
account for bluefin catch. In light of public comment though, this
final rule adds to the framework provisions of the 2006 Consolidated
HMS FMP the authority to set aside a de minimis amount of bluefin quota
for new entrants. Neither the Amendment 13 DEIS nor the FEIS analyzes a
full set-aside program. This final rule simply provides for the
potential development of such a program in the future, if necessary,
should the dynamic allocation provisions finalized in this action not
facilitate new entrants. In that case, NMFS would conduct rulemaking to
set the precise amount of set-aside, and the requirements, process, and
conditions associated with distributing IBQ allocation to new entrants.

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

Comment 7

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

Response

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

Comment 8

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

Response

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

[[Page 59975]]

longline fishing effort in the Gulf of Mexico. The Amendment 7 IBQ
Program rules as modified by Amendment 13 are intended to address the
fact that the Gulf of Mexico is the recognized spawning ground for
western Atlantic bluefin tuna. Under this Amendment 13 final rule, a
vessel without GOM designated IBQ shares, but fishing in the Gulf of
Mexico would be required to lease GOM IBQ allocation during the first
year of fishing in the Gulf of Mexico. However, in the following year
the vessel would have GOM designated IBQ shares in proportion to the
number of pelagic longline sets in the Gulf of Mexico. Over time, a
vessel with increasing levels of fishing effort in the Gulf of Mexico
would receive an increasing percentage of GOM designated IBQ shares.
This method is a reasonable means of providing opportunities to fish in
the Gulf of Mexico, while supporting the objectives of the regional
designations. NMFS agrees that under dynamic determination of shares
and regional designations, there could be a situation of reduced
fishing effort and low GOM designated shares. Under conditions of low
GOM shares and allocation, vessels with GOM IBQ shares may be reluctant
to lease IBQ allocation to others. If unable to lease GOM IBQ
allocation, prospective new entrants to the fishery (without any
shares), or vessels with only Atlantic (ATL) designated shares, would
be unable to meet the minimum IBQ allocation requirement, and thus be
unable to fish in the Gulf of Mexico. Similarly, vessels with GOM
designated IBQ shares may be unable to account for bluefin catch. Such
serious constraints could result in poor function or disruption of the
IBQ Program, and result in further declines in fishing effort or
participation in the pelagic longline fishery, or prevent increases in
fishing effort or participation. To address this, this final rule
includes a GOM designated share percentage threshold. If the total
amount of IBQ shares designated as GOM is five percent or less of the
total IBQ allocations (ATL plus GOM designated shares), the requirement
to account for bluefin caught in the Gulf of Mexico with GOM IBQ
allocation, and use GOM IBQ allocation to satisfy the minimum IBQ
allocation requirement would not apply. In other words, any vessel
would be able to use GOM IBQ or ATL IBQ allocation to either account
for bluefin catch (landings or dead discards) or satisfy the minimum
requirements for IBQ allocation in the Gulf of Mexico. When this low
share threshold provision is in effect, the maximum allowable bluefin
catch from the Gulf of Mexico will be the weight of bluefin associated
with the cap on GOM designated shares (i.e., the default level of 35
percent, or lower if modified). If this level of bluefin catch
(landings and dead discards) were reached in the Gulf of Mexico, NMFS
would prohibit vessels from fishing with pelagic longline gear in the
Gulf of Mexico for the remainder of that year.

Comment 9

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

Response

Amendment 7 established the 35-percent GOM/65-percent ATL regional
designation approach for IBQ shares and allocations, in light of the
fact that the Gulf of Mexico is recognized as the primary spawning
ground for the western Atlantic bluefin tuna stock. Given the annual,
dynamic determination of IBQ shares under Amendment 13 and inherent
variability in the pelagic longline fishery (see response to comment
5), NMFS anticipates that catch rates of bluefin in the Gulf of Mexico
could vary from year to year. However, NMFS does not anticipate that
the regional designation approach, as modified under Amendment 13, will
result in an increase in incidental catch of bluefin in the Gulf of
Mexico above levels of such catch since 2015. To ensure continued
protections in the spawning grounds, this final rule establishes a
default cap (35 percent of total IBQ shares) on the maximum amount of
bluefin that may be caught in the Gulf of Mexico, which could be
adjusted downward to achieve conservation and management objectives per
the criteria under Sec. 635.27(a)(8). See response to comment 10 for
further explanation. Further, when the low GOM share threshold
provision is in effect, the maximum allowable bluefin catch from the
Gulf of Mexico will be the weight of bluefin associated with the cap on
GOM designated shares (i.e., the default level of 35 percent, or lower
if NMFS modifies the level consistent with other provisions in this
Amendment). If this level of bluefin catch (landings and dead discards)
were reached in the Gulf of Mexico, NMFS would prohibit vessels from
fishing with pelagic longline gear in the Gulf of Mexico for the
remainder of that year. The net ecological impact of the Amendment 13
measures on bluefin in the Gulf of Mexico is thus neutral.

Comment 10

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

Response

NMFS does not believe that a 25-percent cap on GOM-designated IBQ
shares is needed to protect bluefin in the Gulf of Mexico. Under the
measures implemented by this Amendment 13 final rule, the amount of
bluefin incidental catch in the Gulf of Mexico would continue to be
capped at a default level of 35 percent of total pelagic longline
bluefin catch. The total amount of GOM-designated IBQ shares could be
even less than 35 percent, as NMFS will annually calculate the total
amount (not to exceed 35 percent) based on the percentage of pelagic
longline sets in the GOM compared to total sets (using the most recent,
three-year period for which NMFS has information). Moreover, if NMFS
determines that a downward adjustment is needed to achieve conservation
and management objectives, it may reduce the maximum amount of bluefin
that can be caught in the Gulf of Mexico, based on the determination
criteria at Sec. 635.27(a)(8). There has not been a change in the
status of the stock (no overfishing, overfished status unknown), and
based on a 2021 stock assessment, ICCAT adopted a moderate increase in
the western Atlantic bluefin total allowable catch. See 87 FR 33049,
June 1, 2022 (final rule on Atlantic Bluefin Tuna and Northern Albacore
Tuna Quotas). In addition, there has been no increase in fishing effort
in the Gulf of Mexico, no increase in catch of bluefin from the Gulf of
Mexico, nor other change in the fishery that would support
consideration of a more conservative default cap level. As noted above,
this final rule authorizes NMFS to reduce the cap, if necessary, for
conservation and management reasons. NMFS disagrees that allowing the
use of ATL designated IBQ allocation during the second half of the year
is a practical means of providing flexibility in the fishery. The
regional designation rules provide adequate flexibility and a
reasonable opportunity to fish in the Gulf of Mexico, while limiting
the amount of potential bluefin incidental catch. Furthermore, a mid-
year change

[[Page 59976]]

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

`C' Alternatives: Sale of IBQ Shares

Comment 11

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

Response

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

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

Comment 12

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

Response

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

Comment 13

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

Response

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

Comment 14

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

Response

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

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

Comment 15

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

Response

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

Comment 16

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

Response

In 2015, the final rule for Amendment 7 authorized NMFS to
``require vessel owners to make minor modifications to vessel equipment
to facilitate installation and operation of the EM system,'' including
``a mounting structure(s) for installation of the camera(s)'' (Sec.
635.9(b)(2)). This final rule clarifies that NMFS may require vessel
owners to install permanent or semi-permanent hardware (e.g., booms),
if necessary, in order to mount and install video cameras at locations
on vessels to obtain optimal views of fish and improve the accuracy of
the resulting data. Not all vessels may need additional hardware. If
needed, NMFS would coordinate closely with vessel operators to address
any vessel operation or safety concerns, taking into consideration the
unique layout and

[[Page 59977]]

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

Comment 17

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

Response

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

Comment 18

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

Response

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

Comment 19

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

Response

NMFS developed the IBQ cost recovery program in consultation with
NMFS staff from other regions with cost recovery programs for limited
access privilege programs (LAPP). Differences among cost recovery
programs reflect the unique aspects of each fishery managed under a
LAPP, consistent with relevant Magnuson-Stevens Act provisions (16
U.S.C. 1853a(e) and 1854(d)(2)). Recognizing that the IBQ Program is
unique because bluefin is an incidental catch and not a targeted
species, NMFS believes cost recovery for this program is consistent
with the aforementioned provisions. As with other cost recovery
programs, in the IBQ program, a fee would not exceed three percent of
the ex-vessel value of fish harvested under the LAPP (bluefin). See id.
Sec. 1854(d)(2)(B). Because bluefin is an incidental species in the
pelagic longline fishery, and the IBQ Program provides incentives to
reduce interactions with bluefin, landings of bluefin are likely to
remain low relative to targeted species. Given the relatively small
total ex-vessel value of bluefin incidentally caught and landed by
pelagic longline vessels, and the substantial incremental costs to NMFS
associated with the IBQ Program, NMFS anticipates that the likely cost
recovery fee would be three percent of the ex-vessel value of bluefin
sold (or less). As such, three percent of the ex-vessel value of
bluefin will likely be a small amount of recoverable costs compared to
other cost recovery programs. Therefore, this final rule implements a
flexible cost recovery program, under which NMFS would make an annual
determination whether a cost recovery fee paid by permit holders
participating in the IBQ Program is warranted. If the total fees that
could be collected are similar to or less than the administrative

[[Page 59978]]

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

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

Comment 20

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

Response

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

Comment 21

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

Response

NMFS agrees that the discontinuation of the Purse Seine category is
warranted. The Purse Seine category has been allocated 18.6 percent of
the U.S. baseline bluefin quota. Discontinuation of the Purse Seine
category and reallocation of its quota will provide additional quota to
active fishing categories that are, at times, quota-limited, and
increase the likelihood that more of the U.S. quota will be utilized.
Bluefin quota allocated to the Purse Seine category has not been used
in many years to harvest bluefin using purse seine gear, and a
meaningful amount of that quota has not been leased to pelagic longline
vessels. See response to comment 24 for further details. Quota that is
allocated to Purse Seine category participants and then not used is a
source of concern to participants of both the directed and incidental
bluefin fisheries, who, as a result, may forego potential fishing
opportunities. Reallocation of the Purse Seine category quota will also
reduce various types of uncertainty that result from the inactive
status of the Purse Seine category (see comment 23).

Comment 22

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

Response

NMFS agrees that pelagic longline vessels have depended on bluefin
quota that they lease from Purse Seine category participants to fish
under the restrictions of the IBQ Program. IBQ Program participants
require adequate IBQ allocation in order to meet the accounting
requirements, participate in the leasing market, and mitigate risk.
Adequate IBQ allocation is important to achieve a balance between
incentives to reduce bluefin interactions and the ability to fish for
target species to maintain profitability and supply the seafood market.
In the reallocation method described in the proposed rule, NMFS did not
reallocate bluefin quota from the Purse Seine category to the Longline
category. After considering public comment, NMFS re-analyzed data
regarding the leasing program and concluded that the Longline category
should receive reallocated Purse Seine category quota in order to
increase the likelihood of maintaining a successful IBQ allocation
leasing market in the future, including new entrants. As described in
the Final Amendment 13/FEIS, pelagic longline vessels have been
increasingly reliant on both the available Purse Seine category quota
and inactive pelagic longline vessels as sources for bluefin quota
leases. Because the incidental Trap category has a de minimis amount of
quota and rare bluefin landings, NMFS is including the category in the
reallocation too, to simplify the overall reallocation. Therefore, this
final rule implements bluefin quota percentages that incorporate
reallocation of the Purse Seine category quota to all of the other
bluefin quota categories, including the Longline and Trap categories,
in proportion to their baseline allocation percentages.
Reallocation of the Purse Seine category quota facilitates directed
fishing by the Longline category while accounting for incidental
bluefin catch and facilitates the ability for active HMS directed
permit categories to catch their full bluefin allocations. Based on the
current U.S. baseline quota, the Longline category will receive more
quota (34.9 mt) under this final rule than the average amount of Purse
Seine leases from 2016 through 2019 (23.9 mt). Given recent lease
amounts, NMFS does not believe that reallocation of 25 percent of the
Purse Seine category quota (54.88 mt) to the Longline category is
needed in order to promote the effective functioning of the IBQ
program. Moreover, leasing was not the reason Amendment 7 adopted the
annual quota allocation mechanism that guaranteed that a minimum of 25
percent of the Purse Seine category quota would be available to the
five historical participants. See response to comment 24 for more on
the mechanism. Under Amendment 7 rules,

[[Page 59979]]

annual allocations to the Purse Seine category are not based on IBQ
leasing, but on the previous year's bluefin catch by each individual
purse seine vessel, as the intent of the mechanism is to encourage
purse seine vessels to catch rather than lease quota. See Final
Amendment 7 to the 2006 Consolidated HMS FMP at pp. 23-24 (explaining
preferred Alternative A3a: Annual Reallocation of Bluefin Quota from
Purse Seine Category).

Comment 23

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

Response

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

Comment 24

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

Response

The business that submitted the comments summarized above is not
one of the five historical participants in the Purse Seine category.
Since 1982, the Purse Seine category has been managed with non-
transferrable limited entry permits, and limited to five participants
who historically were financially dependent on the fishery. None of
those participants uses purse seine gear any longer, nor have they
recently. Although they continue to receive quota and may lease it, the
current framework has inhibited maintaining and achieving, on a
continuing basis, optimum yield in the fishery as a whole. Since
Amendment 7 was implemented in 2015, 75 percent of Purse Seine category
quota annually continues to not be used for bluefin fishing by purse
seine vessels or not be available for leasing under the IBQ Program,
and large amounts of quota are ultimately transferred to the Reserve
category through an annual process. As a result, there is uncertainty
each year about the timing and amount of quota to be transferred
between the Purse Seine and Reserve and other categories,
administrative burden on NMFS to administer the process, and
uncertainty about the amount and price of bluefin quota that might be
leased by Purse Seine category participants.
Limited entry was initiated due to the large harvesting capacity of
purse seine gear and its ability to exceed U.S. quotas in very short
periods of time. Limited entry was implemented with the intent of
ensuring that only those persons who had depended on this fishery for
all or part of their livelihood were allowed access and this approach
was practical given the small pool of ownership in this sector of the
fishery. Under this limited entry system, the use of purse seine gear
was authorized, and equal baseline quotas of bluefin were assigned to
five individual vessel owners. This enabled owners to replace older
vessels they owned with newer ones. Thus, NMFS limited the Purse Seine
category to only the five participants who historically were
financially dependent on the fishery and their five purse seine
vessels. Although new entrants are prohibited, an owner of a vessel
with an Atlantic Tunas permit in the Purse Seine category may transfer
the permit to another purse seine vessel that he or she owns per 50 CFR
635.4(d)(5).
NMFS does not consider the Purse Seine category to be currently
active, even though some of the historical permit holders have been
leasing bluefin quota to pelagic longline vessels as allowed under the
Amendment 7 regulations. Promoting commercial and recreational fishing
under sound conservation and management principles and achieving, on a
continuing basis, optimum yield from a fishery are key purposes of the
Magnuson-Stevens Act. From 2005 through 2012, there was no purse seine
fishing activity. From 2013 through 2015, only one Purse Seine category
participant fished, making only a few sets, and accounting for only a
small percentage of total annual bluefin landings each year (six, five,
and four percent in 2013, 2014, and 2015, respectively). Recognizing
that there had been low (to no) fishing and consistent underutilization
of the Purse Seine category quota, Amendment 7 established the annual
allocation mechanism to, among other things, optimize the ability for
all permit categories to harvest their full bluefin quota allocations.
Under this mechanism, based on their prior year's catch, each of the
five historical participants would receive a minimum of 25 percent of
\1/5\th of the Purse Seine category quota, even if they did not fish,
and up to 100 percent. The goal was to assure some level of fishing
opportunity and create incentives for purse seine vessels to remain
active in the fishery. See Final Amendment 7 to the 2006 Consolidated
HMS FMP at pp. 23-24. Since 2015, there has been no purse seine fishing
activity. The historical participants sold the vessels that they used
to fish for bluefin to new owners that are not historical participants.
Currently, there is no entity that fishes for bluefin with purse seine
gear. Vessels sold by the historical permit holders have been or may be
earning revenue in fisheries for species other than bluefin, and NMFS
did not receive public comment that indicates otherwise or that
provides specific information related to impacts on permit values. With
regard to leasing, it is unclear whether the commenter has in fact been
leasing Purse Seine quota, and if so, how. The commenter is not one of
the five historical participants and accounts used for leasing are
issued to the historical participants. In any event, NMFS did analyze
the effect of the amendment on harvesting privileges by estimating
potential revenue loss

[[Page 59980]]

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

Comment 25

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

Response

Quota categories are tightly associated with authorized gears and
permit types. This structure based on gear and permit type remains a
valid way to align quota distribution among diverse fisheries.
Modifications to the relative size of the allocations (i.e., the
percentages for each quota category) in order to further optimize the
use of the bluefin resource should address specific concerns or trends
in the fishery. There is no new scientific information or fishery
trends that warranted fundamental reconsideration of the entire
allocation structure beyond the alternatives examined in this
Amendment. This Amendment 13 final rule includes modifications to the
relative size of the category allocations (i.e., the percentages for
each quota category) in order to streamline the allocation system, and
further optimize the use of the bluefin resource through elimination of
the Purse Seine category with redistribution to other categories. The
fundamental sizes of the different quota categories in relation to each
other was neither analyzed, nor changed. The scope and rationale for
the allocation changes implemented by this final rule are consistent
with NMFS Procedural Directive 01-119-01 ``Criteria for Initiating
Fisheries Allocation Reviews'', and the 2006 Consolidated HMS FMP.
Additionally, NMFS implemented Amendment 12 to the 2006 Consolidated
HMS FMP (86 FR 46836, August 20, 2021), an amendment that, among other
things, addresses the 2016 revised National Standard guidelines and the
2017 Fisheries Allocation Review Policy Directive 01-119. Amendment 12
established triggers for the review of allocations for quota-managed
HMS species, and these factors were appropriately considered within the
examined alternatives. NMFS decided there was no need in Amendment 13
to consider fundamental changes to the baseline quota percentages (see
Section 2.10.6), thus reallocating Purse Seine category quota in
proportion to those percentages also seems reasonable.
Although the suggestions that the additional quota being
reallocated from the Purse Seine category to the General category
should be allocated to particular subquota periods was not within the
scope of the action, the justifications cited by commenters for
favoring one subquota period or another provided useful information for
NMFS' consideration of modifications to the General category subquota
periods. Comments pertaining to the General category subquota periods
or methods of allocating quota among the General category subquota
periods are addressed in Comments 26 and 27. Regarding the potential
ecological impacts of reallocation of quota from the Purse Seine
category to the Angling category, NMFS has determined that the
ecological impacts will be neutral. Although NMFS understands the
commenter's concern, which is based on the premise that the harvest of
bluefin of different size classes may have different ecological impact,
the increase in the size of the Angling category quota is relatively
small (from 19.7 to 22.6 percent of the bluefin quota).

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

Comment 26

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

Response

NMFS agrees that the General category fishery has changed over
time. Handgear fisheries that target bluefin have consistently been
very active, and the number of permit holders remains high. Increases
in landings from the handgear fisheries that began prior to 2015 have
continued. With such increases, there has been renewed public interest
in the optimal and fair and equitable allocation of bluefin quota among
seasons and geographic areas. These occurrences are the reason NMFS
considered changes to the General category fishery in this amendment.
Notwithstanding these changes to the fishery, based on the analyses in
Draft Amendment 13/DEIS and the Final Amendment 13/FEIS (see Section
4.7.4), NMFS determined that the current structure of the fishery
provides equitable fishing opportunities, as explained further in the
response to Comment 27, is not modifying the General category
regulations in the final rule. The open access permit categories that
allow the use of handgear to target bluefin commercially are intended
to provide opportunities for a variety of participants. NMFS
acknowledges that among those participants there is likely to be a
range in levels of experience and dependence upon the income derived
from the fishery. There are licensing and safety regulations in place
currently for the HMS Charter/Headboat and General category permitted
vessels fishing commercially that do not apply to recreational vessels
issued an HMS Angling permit.

Comment 27

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

[[Page 59981]]

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

Response

NMFS acknowledges that there are varied views on how the General
category could be modified. As noted by commenters, there are potential
trade-offs associated with each of the alternatives analyzed, including
the preferred alternative, depending upon the time of year or location
being considered. The bluefin fishery is highly dynamic because bluefin
are highly mobile, with a distribution that changes seasonally and
annually. Fishing permits are open access, thus permit holders may fish
in any geographic location they choose. Price fluctuations do not show
a strong pattern during the year, despite perceptions that prices are
higher in the fall. However, there are also predictable patterns in
bluefin distribution that are reflected in the current structure of the
General category subquota time periods. The larger quota associated
with some subquota periods reflects the general seasonality, historical
availability, and relative sizes of the historical seasonal fisheries
for bluefin. NMFS analyzed various quantitative metrics in Draft
Amendment 13/DEIS and the Final Amendment 13/FEIS to enable
standardized comparisons among the different subquota periods and
alternatives (e.g., Tables 4.32 through 4.40). Standardized metrics are
used to compare among quota periods because the quota periods are
allocated different amounts of bluefin, and are of different duration.
After considering information from recent years, NMFS believes that the
subquotas continue to be appropriate, given fish availability, fishing
effort, and bluefin landings during the different subquota time
periods, and thus provide fair and equitable fishing opportunities. It
is important to note that the subquotas work in concert with several
regulatory mechanisms that provide flexibility in how the amount of
quota is divided among the subquota periods. NMFS may transfer unused
quota from one subquota period to a subsequent subquota period in the
year such that the quota allocated to subquota periods may increase.
Unused quota may, if remaining unused as the year progresses, all be
transferred into the December subquota period. NMFS may allocate quota
from the December subquota period to the January through March subquota
period, may allocate additional quota from the Reserve category, or may
utilize changes in retention limits to modify the rate of catch to
facilitate the attainment of subquotas and the annual quota.
In 2021, NMFS resumed the use of restricted-fishing days to further
facilitate the attainment of subquotas, and a schedule of restricted-
fishing days was finalized for 2022 (87 FR 33056, June 1, 2022). The
data from recent years suggest that the flexibility in the quota system
provided by these regulatory mechanisms is working. Landings (as a
percentage of quota) have been increasing in recent years. Subquota
periods that have lower percentage allocations have not necessarily
been limited by them. For example, during 2018 and 2019, landings
during the January through March subquota period were 8 percent and 13
percent (respectively) of the total General category bluefin landings,
despite that period having an initial allocation of 5.3 percent of the
General category quota. Similarly, during 2018 and 2019, landings
during the October through November subquota period were 18 percent and
22 percent of the total General category bluefin landings, despite that
period having an initial allocation of 13 percent (Figure 3.3).
Although the amount of bluefin quota in the Reserve category will be
reduced under Amendment 13 as a result of the removal of the Purse
Seine category, and the associated flexibility to transfer quota from
the Reserve to the General category will be reduced, the General
category will be allocated a larger portion of the U.S. bluefin quota.
NMFS will continue to monitor the General category carefully and make
inseason adjustments per its regulations to facilitate a well-managed
fishery that, among other things, provides equitable fishing
opportunities.

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

Comment 28

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

[[Page 59982]]

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

Response

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

Comment 29

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

Response

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

I Alternatives--Modifications to Other Handgear Fishery Regulations

Comment 30:

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

Response:

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

[[Page 59983]]

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

Comment 31:

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

Response:

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

Comment 32:

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

Response:

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

Comment 33:

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

Response:

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

General Comments on the IBQ Program and Pelagic Longline Fishery

Comment 34:

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

[[Page 59984]]

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

Response:

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

Comment 35:

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

Response:

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

General Comments on Amendment 13

Comment 36:

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

Response:

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

Management Options Considered but Not Further Analyzed

Comment 37:

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

Response:

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

[[Page 59985]]

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

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

This section explains the changes in the regulatory text from the
proposed rule to the final rule. Changes were made in response to
public comment, refined analyses, or clarification of text for the
final rule. Therefore, where relevant, the description of measures
implemented by this final rule include any changes from the measures in
the proposed rule and Draft Amendment 13/DEIS. Where NMFS modified the
proposed measures or adopted a different alternative that was not
proposed, such alternatives fell within the scope of, or are a logical
outgrowth of, the alternatives in the proposed rule and DEIS. The
changes from the proposed rule include changes to the method of
determining quota shares in the IBQ Program; IBQ regional designation
rules; Purse Seine category reallocations; Harpoon category retention
limits; and changes to the electronic monitoring program impacts. The
changes from the proposed rule text in the final rule are described
below.
1. Section 635.9, paragraphs (c) and (e). Modification to the
standardized reference grid and VMP.
NMFS received a number of comments on Draft Amendment 13 and the
proposed rule regarding the measuring grid, including accommodating
individual vessel configurations and maintaining safety. See comment 17
under Responses to Comments. After reviewing these comments, NMFS
determined that it is important to provide time for a measuring grid to
be adapted for each vessel and for each vessel to install and begin
using that grid. The final rule thus provides that, over the next year,
NMFS or a NMFS-approved contractor will work with vessel owners/
operators to specify a measuring grid that, to the extent practicable,
accommodates the unique layout and operations of each fishing vessel. A
description of the measuring grid will be included in each vessel's
VMP, and a vessel owner will have six months after the VMP is approved
to install the grid specified in the VMP. See response to comment 17
for further explanation. Additionally, because appropriated funds are
not available, the final rule requires vessel owners to cover the cost
of grid installation, which is a change from the proposed rule.
2. Section 635.15, paragraphs (b), (c), and (e), Sec. 635.28,
paragraph (a), and Sec. 635.34, paragraph (b). Modification to the IBQ
share eligibility, distribution, and allocation methods.
The proposed rule determined IBQ shares based upon landings of
designated species (swordfish, and yellowfin, bigeye tuna, albacore,
and skipjack tunas) as the measure of fishing effort and four
percentile tiers (Sub-Alternative A2c). Public comments noted concerns
regarding the species included as designated species (see comment 2);
potential factors that may affect a vessel's fishing strategy, which
species are fished, and what is landed (see comment 3);
disproportionate impacts the tiers may have on IBQ shares (see comment
4); and different views on the best methods for determining IBQ shares
(see comment 3). After considering public comments, NMFS decided to
change the final rule to determine IBQ shares annually based on sets as
the measure of fishing effort and eliminate tiers, instead providing
each eligible vessel with a ``customized'' share. NMFS will only count
one set (a single deployment and retrieval of pelagic longline gear)
per day towards the determination of IBQ shares. See Pelagic Longline
Fishery: Annual IBQ Share Determination above for further details. This
provides a standardized, uniform method for determining IBQ shares for
a geographically diverse fleet with a range of vessel sizes and fishing
strategies. In addition, it addresses a concern raised about short sets
being deployed for the purpose of influencing IBQ share determinations,
and is simpler for NMFS to implement. See responses to comments 2-4 for
further explanation.
Pursuant to existing authority at Sec. 635.27(a), NMFS may
increase or decrease the baseline Longline quota through inseason or
annual adjustments. When doing so, NMFS would apply each IBQ
shareholder's share percentage to the amount of quota increase (subject
to the applicable GOM cap) or decrease, and will notify shareholders of
any resulting changes in their IBQ allocations.
After considering a concern raised about potential, future declines
in effort in the Gulf of Mexico resulting in a very low percentage of
GOM-designated shares in some years and severely limiting operation of
the fishery, NMFS conducted further analyses and decided to add a low
GOM designated share threshold (5 percent or less) to the final rule.
See comment 8 and response under Response to Comments for further
explanation. If the threshold is triggered, either GOM or ATL shares
and resultant allocations may be used to account for BFT caught in the
Gulf of Mexico and to satisfy the minimum IBQ requirement. Other
existing regional accounting rules would continue to apply, and there
would be a cap on BFT incidental catch in the Gulf of Mexico (weight of
bluefin associated with 35-percent or lower cap on GOM designated
shares). See Pelagic Longline Fishery: Regional Designations for IBQ
Shares and Resultant Allocations above for further details.
Lastly, based on public comment about new entrants (see comment 6),
NMFS adds to the framework provisions of the 2006 Consolidated HMS FMP
and associated regulations authority for a de minimis amount of bluefin
quota from the Longline category quota prior to calculating the annual
IBQ allocations. This lays the groundwork for potential, future
rulemaking, if needed. No set aside is being established at this time.
3. Section 635.19, paragraph (b). Correction and clarifications to
Atlantic tunas primary gears.
The proposed rule incorrectly listed bandit gear and green-stick
gear as primary gears for the Angling category for BAYS. The final rule
deletes those gear types. In addition, consistent with an existing
prohibition that refers to fishing for, catching, retaining, or
possessing bluefin tuna, the final rule adds ``catching'' or
``catches'' in several places where the other terms appear in paragraph
(b).
4. Section 635.23, paragraph (d). Modification regarding Atlantic
Tunas Harpoon category permit holders retention limits for bluefin.
The proposed rule maintains the current Harpoon category retention
limit (range) of large medium bluefin, but sets a combined daily
retention limit on the total number of large medium and giant bluefin
at 10 fish. These aspects are unchanged in the final rule. The final
rule adds inseason authority to adjust the combined daily retention
limit between 5 to 10 fish, in order to avoid closing the fishery. See
Harpoon category section and comment 31 and response, above, for
further details and explanation.
5. Section 635.27, paragraph (a) and subparagraph (a)(3).
Modification to the commercial and recreational quotas for bluefin.
The proposed rule would have reallocated Purse Seine category quota
proportionally to the directed bluefin quota categories (General,
Angling, Harpoon, and Reserve categories) (preferred Alternative F4).
The final rule adds Longline and Trap, and reallocates the Purse Seine
category quota to all categories by revising each category's percentage
proportionally. NMFS made this change in light of public comments
expressing concern about impacts on

[[Page 59986]]

the IBQ leasing market as a result of discontinuation of the Purse
Seine category, further analyses on the source of pelagic longline IBQ
leases, and the agency's conclusion that the Longline category should
be included in the reallocation to increase the likelihood of a
successful leasing market. See Purse Seine section and comment 22 and
response above for further details.
The final rule also amends Sec. 635.27(a)(3) to add: ``For
purposes of Sec. 635.28(a)(1), regional IBQ allocations under Sec.
635.15(c)(3) and the BFT catch cap for fishing in the Gulf of Mexico
(Sec. 635.15(c)(3)(iii)) are considered quotas.'' Section 635.28(a)(1)
provides for closure authority. Adding the BFT catch cap here ensures
that, if the low GOM designated shares threshold is triggered, NMFS can
take action if the catch cap is reached or projected to be reached.
Section 635.28(a)(1) already authorizes closure action for regional IBQ
allocations; deleting reference there to regional IBQ allocations and
adding the reference to Sec. 635.27(a)(3) merely simplifies the
regulatory text.
6. Section 635.28, paragraph (a). Modification to fishery closures.
Consistent with the edit to Sec. 635.27(a)(3) discussed above, the
final rule deletes reference to regional IBQ allocations here.
7. Section 635.34, paragraph (b). Adjustment of management
measures.
As explained above, NMFS has added to the framework provisions of
the 2006 Consolidated HMS FMP authority for a de minimis set aside of
bluefin quota from the Longline category. The final rule makes a
parallel edit to Sec. 635.34.
8. Section 635.71 and other sections throughout the rule. Technical
adjustments.
In addition to the primary changes described above, additional
technical changes were made throughout the rule to improve upon clarity
(e.g., change in punctuation, reordering phrases or sentences, adding
additional information or cross-references), correct capitalizations,
or correct cross-references for paragraphs that are changing. In
section 635.71, the final rule adds a prohibition corresponding to an
existing requirement at Sec. 635.23(f)(2), which requires vessels with
pelagic longline gear on board to retain all dead large medium or giant
bluefin. The final rule clarifies that both apply to retaining ``and
land[ing]'' bluefin, and instead of specifying a size for the fish,
uses ``large medium or giant'' BFT, which are defined terms under Sec.
635.2. Other changes in Sec. 635.71 correct cross-references based on
the changes in this final rule. A number of other technical changes can
be found throughout the rule and do not affect the intent of the final
rule. Rather, these changes are editorial in nature or clarifications
to existing regulatory text.

Classification

The NMFS Assistant Administrator has determined that this final
rule is consistent with the 2006 Consolidated HMS FMP and its
amendments, the Magnuson-Stevens Act, ATCA, and other applicable law.
As described above, NMFS prepared an FEIS for Amendment 13. The
Notice of Availability for the FEIS was published in the Federal
Register on May 13, 2022 (87 FR 29310). In approving Amendment 13, NMFS
issued a Record of Decision (ROD) identifying the selected
alternatives. A copy of the ROD and the FEIS, which includes detailed
analyses of a reasonable range of alternatives to meet rulemaking
objectives, is available from NMFS (see ADDRESSES).
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
NMFS requested reinitiation of consultation under the Endangered
Species Act (ESA) in July 2022, on the effects of the Atlantic HMS
pelagic longline fishery due to new information on mortality of giant
manta ray that exceeded the mortality anticipated in the May 2020
Biological Opinion on that fishery. As explained in the Background
section, in accordance with section 7(d) of the ESA, NMFS has
determined that, during consultation, pelagic longline fishery activity
consistent with the 2020 Biological Opinion will not result in an
irretrievable or irreversible commitment of resources which would have
the effect of foreclosing the formulation or implementation of any
reasonable and prudent alternative measures and that continued
compliance with the Reasonable and Prudent Measures and Terms and
Conditions in that biological opinion will avoid jeopardy to ESA-listed
species, consistent with section 7(a)(2) of the ESA.
A final regulatory flexibility analysis (FRFA) was prepared. The
FRFA incorporates the initial regulatory flexibility analysis (IRFA), a
summary of the significant issues raised by the public comments in
response to the IRFA, NMFS responses to those comments, and a summary
of the analyses completed to support the action. A summary of the FRFA,
which must address each of the requirements in 5 U.S.C. 604(a)(1)-(5),
is below. The entire FRFA is included in the FEIS and is available from
NMFS (see ADDRESSES).
Section 604(a)(1) of the RFA requires Agencies to state the
objective of, and legal basis for, the action. The objectives of, and
legal basis for, this final rule are set forth in the Background
section above.
Sections 604(a)(2) and (3) of the RFA require that a FRFA include a
summary of significant issues raised by public comment or by the Chief
Counsel for Advocacy of the Small Business Administration in response
to the IRFA and proposed rule, a summary of the assessment of the
Agency of such issues, and a statement of any changes made in the rule
as a result of such comments. NMFS did not receive any comments on the
proposed rule from the Chief Counsel for Advocacy of the Small Business
Administration. Additionally, NMFS did not receive any public comments
specifically on the IRFA, however the Agency did receive some comments
regarding the anticipated or perceived economic impact of the rule. The
comments and responses included below are those that pertain
specifically to such economic impacts. A summary of all of the comments
received and the Agency's responses are provided above.
Comment 2 noted that dolphin fish provide up to 30 percent of the
revenue for a pelagic longline vessel, thus it should be included as a
designated species under the proposed, dynamic allocations of IBQ
shares. While NMFS agrees that dolphin fish is an economically
important component of the pelagic longline fishery, based on other
public comments and additional analyses, NMFS decided to use pelagic
longline sets, not designated species, for the allocations.
Comment 4 noted that the use of tiers in the proposed, dynamic
allocation alternatives has the effect of disadvantaging some vessels,
as it would assign IBQ shares based on four distinct percentages. Some
vessels could receive less IBQ shares and may have to spend more money
to lease additional shares from other vessels, or lose potential income
from additional shares that could have leased to other vessels. NMFS
agrees that there were negative implications for individual vessels
associated with the use of tiers. After consideration of public
comments, NMFS determined that the beneficial aspects of the use of
tiers did not outweigh these negative aspects, and, therefore NMFS will
base dynamic allocation of IBQ shares on customized share percentages
for each vessel, not tiers.
Comment 8 noted that the combined effect of the proposed IBQ
measures that focus on the Gulf of Mexico--that is the Gulf of Mexico
designation of IBQ and

[[Page 59987]]

the associated rules--would not function when there is very low fishing
effort in the Gulf of Mexico. The specific concern stated was that
vessels may have insufficient IBQ allocations to satisfy the minimum
IBQ requirements as well as account for any bluefin catch, and that
vessels would not lease IBQ allocation to other vessels. A severely
constrained or non-functioning IBQ program in the Gulf of Mexico would
directly impact the ability for vessels to fish and earn income. NMFS
agrees that under conditions of very low fishing effort in the Gulf of
Mexico, the IBQ Program may not function as designed. Therefore, NMFS
has modified the final rule to include a low share threshold that
enables temporary relaxation of certain GOM-specific accounting rules,
while maintaining an overall cap on catch in the Gulf.
Comment 6 noted that a bluefin quota `set-aside' should be created
to provide a source of IBQ shares and allocations for vessels that are
new entrants to the fishery. In response, NMFS has added to the 2006
Consolidated HMS FMP framework provisions and related regulations the
authority to establish such a set aside, if needed, through a future
rulemaking.
Comment 22 noted that that the Longline category should be included
in the reallocation of Purse Seine quota, because pelagic longline
vessels rely on Purse Seine category quota for leasing under the IBQ
Program and would be impacted by decreased availability of IBQ
allocation to lease with elimination of the Purse Seine category. A
commenter stated that increased IBQ allocations to active pelagic
longline vessels under the proposed IBQ share alternative will not make
up for the loss of quota currently available from the Purse Seine
category. NMFS agrees with this statement, having confirmed it through
additional analyses for the Final Amendment 13/FEIS. Based on this and
other considerations, the final rule includes the Longline and Trap
categories in the reallocation of Purse Seine category quota.
Comment 27 noted public concerns about some of the General category
subquota alternatives that were not preferred, varied views on how to
modify the subquotas. For example, one commenter noted that
modification of the current subquota periods into 12 equal subquota
periods (Alternative G2a), would adversely affect the participation and
finances of vessels, depending upon the location of the vessels.
Another commenter did not support extending the January through March
subquota period until the end of April (Alternative G2b) because such a
change would result in negative economic consequences later in the
year. NMFS acknowledges that there are potential trade-offs associated
with each of the alternatives analyzed, but notes that the bluefin
fishery is highly dynamic, fishing permits are open access, and price
fluctuations do not show a strong pattern during the year. After
considering public comment and information from recent years, NMFS
believes that existing General category subquota periods continue to be
appropriate, given fish availability, fishing effort, and bluefin
landings during the different subquota time periods, and thus provide
fair and equitable fishing opportunities. Thus, the final rule makes no
changes to those subquota periods.
Comment 31 noted that the implementation of the proposed retention
limit of 10 bluefin for the Harpoon category, which applies to large
medium and giant fish (combined), would result in lost fishing
opportunity and unharvested bluefin quota, and that therefore NMFS
should not implement the measure. NMFS disagrees that the harpoon
retention limit would result in lost fishing opportunity. Based on past
data, the retention limit would affect relatively few vessels. In 2019
only 2 percent of Harpoon category trips landed 10 or more bluefin.
NMFS has added to the final rule the ability to adjust the limit
inseason to between 5 and 10 fish, in order to provide a means with
which to influence rates of catch, lengthen the fishing season, and
optimize fishing opportunities and resultant revenues.
Section 604(a)(4) of the RFA requires Agencies to provide an
estimate of the number of small entities to which the rule would apply.
For RFA compliance purposes, NMFS established a small business size
standard of $11 million in annual gross receipts for all businesses in
the commercial fishing industry (NAICS code 11411). SBA has established
size standards for all other major industry sectors in the United
States, including the scenic and sightseeing transportation (water)
sector (NAICS code 487210, for-hire), which includes charter/party boat
entities. SBA has defined a small charter/party boat entity as one with
average annual receipts (revenue) of less than $8.0 million. NMFS
considers all HMS permit holders to be small entities because average
annual receipts are less than $11 million for commercial fishing or $8
million for charter/party boat entities. Regarding those entities that
would be directly affected by the measures implemented by this final
rule, the average annual revenue per active pelagic longline vessel in
2017 is estimated to be $307,422 based on 88 active vessels, which is
well below the NMFS small business size standard for commercial fishing
businesses of $11 million. In 2019, there were 280 Atlantic Tunas
Longline category permits, and 67 vessels were actively fishing based
on logbook records. In examining the trends of overall fleet-wide
revenues in The Three-Year Review, NMFS found that the average annual
revenue per vessel has been relatively stable. Thus, while Final
Amendment 13 does not update the revenue estimate for 2019, based on
information that NMFS has on the fishery, revenue per vessel in 2019
would have been well below $11 million.
Other non-pelagic longline HMS commercial fishing vessels typically
earn less revenue than pelagic longline vessels, and each HMS Charter/
Headboat typically earns much less than $8 million annually. Thus, all
of these vessels would also be considered small entities. The other
(non-Atlantic Tunas Longline) commercial measures implemented by this
final rule apply to 2,721 General category permit holders, 3,769
Charter/Headboat permit holders, 20 Harpoon category permit holders,
and 34 seafood dealers that purchase bluefin (based on 2019 data).
NMFS has determined that the final rule measures will not likely
directly affect any small organizations or small government
jurisdictions defined under the RFA, nor will there be disproportionate
economic impacts between large and small entities.
Section 604(a)(5) of the RFA requires Agencies to describe any new
reporting, record-keeping and other compliance requirements. This final
rule contains revised or new collection-of-information requirements
subject to review and approval by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act (PRA). See FRFA in Final
Amendment 13 at section 7.4 for further details. Public reporting
burden for these collections of information, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information, are estimated below (see Paperwork Reduction
Act).
Under section 604(a)(6) of the RFA, Agencies must describe the
steps to minimize the significant economic impact on small entities
consistent with the stated objectives of applicable statutes, including
a statement of the factual, policy, and legal reasons for selecting the
measures adopted in the

[[Page 59988]]

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

Modifications to IBQ Share Eligibility, Distribution and Allocation
Methods

Alternative A1, the No Action Alternative, would make no changes to
the current method of determining IBQ share eligibility, and the
distribution of IBQ allocations, including regional designations.
Although this alternative would not result in any changes in the
economic impacts to small entities associated with the IBQ Program
under Amendment 7, the costs and inefficiencies associated with the
current method of share determination would continue. Specifically,
there would continue to be the inefficiency associated with annual IBQ
allocations that are neither used to account for bluefin catch, nor
leased to other shareholders. Alternative A1 would not meet objective 4
of this Amendment. For these reasons, this alternative was rejected.
Alternative A2 is composed of four sub-alternatives with annual,
dynamic determination methods for allocating IBQ shares based on
different criteria for defining the pool of recently active vessels. In
making annual determinations, NMFS would use a recent 36-month period
of relevant, best available data. Public comments supported use of a
measure of fishing effort, rather than equal shares, because the
pelagic longline fleet is very diverse in terms of fishing effort. The
current IBQ Program has 136 shareholders. Under the sub-alternatives,
there would be 91 defined shareholders based on the total number of
vessels that submitted VMS bluefin reports from 2017 through 2019. The
sub-alternatives would reduce dissatisfaction among active fishery
participants that results from the current IBQ Program, under which a
relatively large number of permit holders who are not active receive
annual IBQ allocations. While the FRFA estimates numbers of vessels
that would have larger or smaller IBQ share percentages, any changes in
IBQ shares are short term, as IBQ shares will be determined annually
using the most recent three years of relevant, available data. Economic
costs associated with reduced allocations would only be realized if
shareholders need to lease IBQ allocation to account for bluefin catch
in excess of their allocations. Shareholders may have a slightly
reduced ability for business planning due to the potential annual
variability in share percentages. However, they would be aware that a
substantive change in their amount of fishing effort may result in
slight changes in the share percentage in the following year. Any
adverse impacts on a shareholder could be partially mitigated through
leasing IBQ allocation, recognizing that there are costs associated
with leasing. The FRFA anticipates that the leasing market is likely to
continue to function well, with a price similar to or lower than recent
prices, because under the sub-alternatives, most vessel allocations
would increase.
Sub-Alternative A2a would define IBQ shareholders annually based on
the relative number of hooks fished as the measure of fishing effort.
The FEIS estimates that sixty-five vessels would have larger share
percentages and twenty-six would have smaller share percentages
compared to the No Action Alternative. Under dynamic determination of
shares based on hooks, active vessels generally would be distributed
more IBQ allocation per vessel than under the No Action Alternative
(with the exception of shareholders in the first quartile). However,
public comment strongly supported the use of sets instead of hooks or
designated species landings, and it is more difficult to quantify the
number of hooks than the number of sets. Therefore, this alternative
was rejected.
Sub-Alternative A2b (preferred in Final Amendment 13 and
implemented in final rule) defines IBQ shareholders based on the
relative number of pelagic longline sets as the measure of fishing
effort. For valid participants in the Deepwater Horizon Oceanic Fish
Restoration Project, a proxy amount of sets will be added to a vessel's
history during the period of its participation in the Project, in order
to ensure there are no negative impacts associated with their voluntary
participation in that project. The proxy will be based upon the average
number of sets made by IBQ shareholders' vessels that did not
participate in the Project during the period that participants fished
under the Project. For most active IBQ shareholders, who are small
business entities, the overall economic impacts of Sub-Alternative A2b
would be minor and beneficial. The FRFA estimates that sixty-one
vessels would have larger share percentages and thirty vessels would
have smaller share percentages compared to the No Action Alternative.
Overall there would be a net increase in IBQ allocation value. Sixty-
one vessels would be in a better economic position with respect to the
amount of IBQ allocation distributed to them in association with their
IBQ share (expressed in terms of potential lease costs avoided, or
leasing benefits accrued). The average pounds of IBQ allocation gained
would be 2,696 with a range of between 43 and 7,490 pounds. Using a
weighted average cost per pound of leased IBQ allocation from 2017
through 2019 of $1.70, the average lease value of IBQ allocation gained
would be approximately $4,582 per shareholder with a range of $74 to
$12,732. For the thirty vessels with smaller IBQ allocations, the
average lease value of IBQ allocation lost would be approximately
$3,492 per shareholder with a range of $87 to $7,302. Under dynamic
allocation based on sets, vessels are generally distributed more IBQ
allocation than under the No Action Alternative (with the exception of
shareholders in the first quartile). There were public comments
supporting this alternative. NMFS prefers this alternative as it
provides a standardized, uniform method for determining IBQ shares for
a geographically diverse fleet with a range of vessel sizes and fishing
strategies. In addition, NMFS can determine the number of sets
annually, in a timely manner, using a single data source.
Sub-Alternative A2c (preferred in Draft Amendment 13) would define
IBQ shareholders based upon the total amount by weight of each
individual permitted vessel's designated species landings relative to
the total amount of designated species landings by pelagic longline
fleet, as the measure of fishing effort. Participants in the Deepwater
Horizon Oceanic Fish Restoration Project would have their fishing
effort represented by the use of a proxy amount of landings used in the
calculation of their IBQ shares, in order to ensure that there are no
negative impacts associated with their voluntary participation in that
project. For most active IBQ shareholders, who are small business
entities, the economic impact of this alternative would be positive,
and the overall economic impacts would be minor beneficial. The FRFA
estimates that 56 vessels would have would have larger share
percentages and thirty-five vessels would have smaller share
percentages when compared to the No Action Alternative. Overall, there
would be a net increase in IBQ allocation value. Public comments noted
concern with not including certain species as designated species and
noted that there is diversity in the pelagic longline fleet with regard
to

[[Page 59989]]

fishing strategy and species fished and landed. The exclusion of
dolphin and wahoo from the list of designated species affected the IBQ
share percentages of eight vessels in the analyses. Compared to the IBQ
share percentages that they would have received if dolphin and wahoo
were included, four vessels increased in share percentage and four
vessels decreased.
Under dynamic allocation based on designated species landings,
vessels generally would be distributed more IBQ allocation than under
the No Action Alternative (with the exception of shareholders in the
first quartile). However, given variations in fishing effort within the
fleet, concern about creating incentives to capture lower value fish
and potentially increasing waste of fish, complexities of administering
this approach, and other public comments, this alternative was
rejected.
Alternative A3 would have distributed IBQ allocation using the same
formula used in Amendment 7, but instead of using data during the
period from 2006 through 2012, the alternative would define eligible
vessels as those that reported making at least one set using pelagic
longline gear (based on logbook data, as in Amendment 7) from 2016
through 2018, and the relevant catch data used to designate IBQ
shareholders to one of three tiers would also be based on 2016 through
2018. The number of tiers (three) would remain the same (high, medium,
and low), but the IBQ share percentages would be higher for all tiers.
The net result under this alternative would be some permit holders
would have a larger IBQ share percentage and other permit holders would
have a smaller IBQ share percentage when compared to the No Action
Alternative. The number of IBQ shareholders would be reduced from 136
to 99, and reduce dissatisfaction among fishery participants that
results from the current regulations under which a relatively large
number of permit holders who are not active, receive an annual IBQ
allocation because they are IBQ shareholders (with a permitted vessel).
This alternative was rejected as the preferred alternative because it
would only partially achieve the objective that IBQ shares distributed
to inactive shareholders be redistributed to active vessels, because
the share determination is static (i.e., a one-time determination).
Because the alternative is not dynamic, over time the distribution of
IBQ shares and subsequent IBQ allocation among vessels may not be
aligned with the active vessels.

Modifications to Rules Closely Linked to IBQ Allocations

Alternative B1, the No Action Alternative regarding Gulf of Mexico
(GOM) and Atlantic (ATL) designated share determination, would result
in the continuation of the current IBQ shareholders, associated share
percentages, and regional designations (35 percent of the total
Longline category quota designated as GOM, and 65 percent designated as
ATL). Vessels that currently do not have GOM designated IBQ allocation
but would like to fish in the Gulf of Mexico would need to lease GOM
IBQ allocation. The costs associated with vessels leasing GOM
designated IBQ allocation would continue. Vessels that do not have any
shares of GOM designated IBQ would not gain any additional flexibility,
and the alternative would not provide the authority for NMFS to reduce
the cap on GOM designated IBQ. For these reasons, this alternative was
not preferred.
Alternative B2 would eliminate regional designations in conjunction
with maintaining a maximum amount of bluefin catch from the Gulf of
Mexico (35 percent of the Longline category quota). The alternative
would facilitate fishing opportunities in the Gulf of Mexico for
vessels currently with only ATL designated IBQ, and may result in
increased revenue for such vessels. For vessels that already fish
exclusively in the Gulf of Mexico, with all or most of their IBQ
allocation designated as GOM, this alternative may have adverse
economic impacts. Such vessels that currently have GOM designated IBQ
allocation may face increased competition for fishing grounds or
markets due to any increased fishing effort in the Gulf of Mexico, or
face a smaller market for leasing their GOM allocation to other
vessels. Elimination of the regional designations would likely result
in increased uncertainty in the fishery. The alternative would not
provide the authority for NMFS to reduce the cap on GOM designated IBQ.
For the above reasons, this alternative was not selected as the
preferred alternative.
Alternative B3, implemented by this final rule, will annually
modify regional GOM and ATL designations as part of the dynamic
allocation of IBQ shares; cap bluefin catch from the Gulf of Mexico (35
percent of Longline category quota or IBQ shares and resultant
allocations); allow for reduction of the cap based on established
criteria used for inseason and annual adjustments to quota; and
maintain existing accounting rules for regional IBQ allocations unless
a GOM low shares threshold is triggered. Regional designations annually
would be based on the location of vessels' pelagic longline fishing
activity using a recent 36-month period of relevant, best available
data, and thus, GOM designated shares could be lower than the GOM cap
(35 percent default or lower). Regarding the potential for NMFS to
decrease the maximum percentage of GOM designated IBQ shares, if the
maximum amount of GOM designated IBQ shares were reduced compared to
the No Action level (e.g., down to between 27 percent and 33 percent of
the total IBQ shares), there would likely be no practical impact
because the recent levels of catch of bluefin from the Gulf of Mexico
have been very low. This alternative would provide a reasonable amount
of flexibility for vessels to fish in the Gulf of Mexico.
The final rule adds a low GOM designated shares threshold. A public
comment expressed the concern that the potential for declining effort
in the Gulf of Mexico could result in a total percentage share and
allocation of GOM IBQ so low that it improperly constrains the fishery.
In order to prevent serious constraints in the functioning of the IBQ
Program in the Gulf of Mexico under conditions of very low fishing
effort, this final rule provides: if the total amount of IBQ shares
that are designated as GOM are 5 percent or less of the total IBQ
allocations (ATL plus GOM designated shares), NMFS will suspend the
requirement to account for bluefin caught in the Gulf with GOM IBQ
allocation, and use GOM IBQ allocation to satisfy the minimum IBQ
requirement under the quarterly accountability rules. If the threshold
is triggered, overall, the economic impacts are expected to be minor
and beneficial, due to the increased flexibility for vessels currently
without GOM designated IBQ shares and subsequent allocation. More
specifically, there could be several types of impacts on small entities
as a result of implementing the threshold provision: Those associated
with vessel owners that have ATL designated IBQ shares (likely with
home ports in the Atlantic); impacts on vessel owners with GOM
designated IBQ shares (likely with home ports in the Gulf of Mexico),
and those impacts that may result from a reduced percentage of total
IBQ shares that are designated as GOM (if the amount of GOM designated
shares, based on location of fishing effort (landings) exceeds the
level of the cap). If triggered, this measure will provide increased
flexibility for vessels that currently have ATL designated IBQ

[[Page 59990]]

shares because the dynamic annual definition of shares and regional
designations would enable a vessel to receive annual shares with a GOM
regional designation as a result of fishing with pelagic longline gear
in the Gulf of Mexico during the previous year (instead of needing to
lease GOM designated IBQ allocation annually). Historical fishery
participants in the Gulf of Mexico will continue to receive GOM
designated IBQ shares based on their level of activity (in the Gulf of
Mexico). If the number of vessels fishing in the Gulf of Mexico
increased, there may be minor short-term adverse economic impacts to
those entities due to increased competition. However, based on the few
vessels with home ports in the Atlantic that have fished in the Gulf of
Mexico during the past few years, the potential for any adverse
economic impact on vessels with home ports in the Gulf of Mexico is
very low.
Preferred Alternative B4 is the No Action Alternative with respect
to the Northeast Distant Gear Restricted Area (NED) rules. The economic
impacts of the preferred alternative with respect to the NED rules will
be neutral because there will no changes to the relevant rules. Data
associated with vessels fishing in the NED will be included as part of
the formula defining IBQ shares, and vessels fishing in the NED do not
have to use IBQ allocation to account for bluefin catch until after the
25-mt NED quota is utilized. Vessels that fish in the NED would
continue to be able to fish there with no impact on the associated IBQ
shares.
Alternative B5 would not include NED fishing activity as part of
the data used in calculating IBQ Allocations. This alternative would
have minor adverse economic impacts on vessels that fish in the NED
because their fishing effort in the NED would not be reflected in their
IBQ share percentage. Depending upon the specific amount of fishing
effort, a vessel may receive a lower IBQ share percentage if tiers are
used to assign IBQ shares. Nine vessels fished in the NED during 2016
through 2018. The NED fishery is unique and highly variable, and
therefore only a few vessels fish there intermittently. If a vessel
fished in the NED during a particular year, their share percentage may
be reduced during subsequent years as a result, whether or not any
bluefin were caught during that year, and whether or not the vessel
choses to fish in the NED during subsequent years. If NED fishers
receive a lower IBQ share percentage relative to their total fishing
effort than other vessels, this may put them at a competitive
disadvantage. Disadvantaging vessels that fish in the NED may alter the
costs and incentives for vessels to fish in the NED, and have an
adverse long-term impact on the fishery as a whole due to the
underutilization of swordfish. Therefore, this alternative was not
selected as the preferred alternative.

Sale of IBQ Shares

Preferred Alternative C1 would continue the current regulations
under which no sale of IBQ shares is allowed. This alternative is
expected to have minor beneficial economic impacts. There is little
need for Atlantic Tunas Longline category permit holders to accumulate
additional IBQ shares, because for most permit holders, annual
allocations combined with a minimal amount of leasing is likely to be
sufficient for permit holders to account for bluefin catch. Continued
prohibition on sale of IBQ shares would reduce uncertainty in the IBQ
allocation leasing market in both the short term and long term, which
would be beneficial to the IBQ Program overall.
Alternative C2 would allow sale of IBQ shares and have some
beneficial and some adverse impacts, with the net socioeconomic impacts
being minor adverse. Sale of IBQ shares provides Atlantic Tunas
Longline category permit holders an alternative means of participating
in the IBQ leasing market that enables management of their IBQ
allocation and business planning on a longer time scale than a single
year. Permit holders may be able to save money through a single IBQ
share transaction instead of via annual IBQ allocation lease
transactions, a beneficial impact. On the other hand, allowing sale of
IBQ shares would introduce uncertainty in the IBQ allocation leasing
market, which is otherwise robust as described in the Three-Year
Review, and could have an adverse impact on the IBQ Program overall.
There is no demonstrated need for Atlantic Tunas Longline category
permit holders to accumulate additional IBQ shares over multiple years,
because for most permit holders, annual allocations combined with a
minimal amount of leasing is likely to be sufficient for permit holders
to account for bluefin catch. Furthermore, allowing sale and
accumulation of IBQ shares beyond a single year would not be consistent
with the dynamic allocation alternatives, as it would remove the
ability for NMFS to allocate shares annually among active vessels based
on recent fishing effort. Therefore, this alternative was not selected
as the preferred alternative.

Cap on IBQ Shareholder Percentage or IBQ Allocation Use

Sub-Alternative D1a, the No Action Alternative, would not place a
cap on the amount of IBQ shares owned. This alternative is expected to
have neutral economic impacts on small entities. The IBQ Program has
been functioning under these regulations since 2015, and there have
been no reported or observed issues relating to excessive accumulation
of IBQ shares. In 2015 through 2019, the highest level of IBQ share
ownership by one entity was between five and six percent of total IBQ
shares, and this percentage remained the same throughout that time
period. However, it is possible that future conditions in the fishery
will change. Regardless of the likelihood of accumulation of IBQ
shares, this alternative would not prevent future accumulations of
shares by entities and was therefore not selected as the preferred
alternative.
Sub-Alternative D1b, which would cap the accumulated sum of IBQ
shares owned by a single entity at seven percent, is expected to have
minor adverse economic impacts on small entities. Under the allocation
method described in the preferred `A' alternatives, the maximum amount
of IBQ shares that a single entity would own on an annual basis would
be between six and seven percent of total shares. However, there is the
possibility that entities could have business plans to acquire
additional shares or purchase additional permits to increase their IBQ
shares in the short-term that would be above a seven-percent cap, in
which case there could be short-term minor adverse economic impacts. If
an entity owned many vessels and had a relatively large amount of
fishing effort (under the dynamic allocation alternatives), it is
possible that a seven percent share cap would result in a
disproportionately low percentage share of bluefin that could affect
their ability to fish for their target species, and prevent increases
in lawful fishing activity. By limiting the number of Atlantic Tunas
Longline category permits an entity could own (outside of the limit
discussed above at Sec. 635.4(l)(2)(iii)), or limiting the amount of
annual IBQ shares an entity could receive (or buy, under Alternative
C2), the seven-percent cap could in turn limit the amount of fishing
activity and target species landings of vessel or business, potentially
preventing that business from increasing activity. For these reasons,
Sub-Alternative D1b could have long-term adverse economic impacts. For
the reasons stated, this

[[Page 59991]]

alternative was not selected as the preferred alternative.
Preferred Sub-Alternative D1c, implemented by this final rule, will
cap the amount of IBQ shares owned at 25 percent, and is expected to
have neutral economic impacts. In 2015 through 2019, the highest level
of IBQ share ownership by one entity was between five and six percent
of total IBQ shares, and this percentage remained the same throughout
that time period. Under the allocation method described in the
preferred `A' alternatives, the maximum amount of IBQ shares that a
single entity would own on an annual basis would be between six and
seven percent of total shares. If this trend continues where the
maximum percent ownership remains stable over time, implementing a cap
at 25 percent would not impact the fleet. This cap level would allow
flexibility in entities' business planning to acquire more shares, by
acquiring additional Atlantic Tunas Longline category permits.
Implementing a 25-percent cap to prevent acquisition of excessive IBQ
shares would prevent a single entity from controlling an excessive
portion of the market, would address potential concerns among vessel
owners, and accumulation of shares by a single entity and reduce any
associated uncertainty, which would be a minor, beneficial
socioeconomic impact.
Sub-Alternative D1d would cap the amount of IBQ shares owned at 50
percent, and is expected to have neutral economic impacts in the short
term. Although this cap level would allow flexibility in entities'
business planning to acquire more shares, by acquiring additional
Atlantic Tunas Longline category permits, in the long term, Sub-
Alternative D1a could have direct minor adverse economic impacts, if
the high cap level of 50 percent is insufficient to prevent acquisition
of excessive IBQ shares, allowing a single entity to control an
excessive portion of the market. Therefore, this alternative was not
selected as the preferred alternative.
Sub-Alternative D2a (No Action), which would not cap the amount of
IBQ allocation leased or used, is expected to have neutral economic
impacts on small entities. The IBQ Program has been functioning under
these regulations since 2015, and there have been no reported or
observed issues relating to excessive accumulation of IBQ allocation.
The highest amount of IBQ allocation that a single entity held in a
given year, including leased allocation, was 6.5 percent, 12.3 percent,
and 8.8 percent of the total annual allocation (i.e., the Longline
category bluefin quota) in 2015, 2017, and 2019, respectively. During
the development of Amendment 13 in spring 2022, NMFS became aware of
concerns regarding recent, high bluefin landings in a portion of the
pelagic longline fishery. NMFS considers this to be an unusual event
and not reflective of how the IBQ Program has functioned overall. The
IBQ Program was designed to provide ample flexibility for vessel owners
to lease IBQ allocation in the amounts that they need to account for
bluefin catch, maintain an IBQ allocation balance that satisfies the
minimum IBQ allocation requirements, and maintain an IBQ allocation
balance that addresses the potential risk/need to account for future
catch of bluefin. Furthermore, another measure implemented by this
final rule, which sets a cap on IBQ share ownership at 25 percent (Sub-
Alternative D1c) will prevent an excessive accumulation of IBQ shares
over time. Leasing of IBQ allocation occurs on an annual basis and
expires at the end of each calendar year, therefore there is no long-
term concern about excessive accumulation of allocation via leasing. In
addition, the preferred alternatives under the IBQ allocation
alternatives (A alternatives) are designed to update and more closely
align the distribution of IBQ shares and resulting allocation with the
current fishing activity and need for IBQ allocation of the pelagic
longline fleet, which could reduce the likelihood that entities would
seek to lease additional allocation.
Sub-Alternative D2b would establish a cap on the amount of IBQ
allocation an entity may lease or use at 25 percent. Although the level
of this cap would be larger than the highest amount of IBQ allocation
that a single entity held in a given year, it is possible that it would
constrain the ability of a vessel to account for bluefin catch. A limit
on how much IBQ allocation an entity can lease could cause some permit
holders to become needlessly risk averse and decrease their fishing
activity and, consequently, target species landings. Concerns about
targeting bluefin may be better addressed through another regulatory
mechanism. For these reasons, this alternative was not selected as the
preferred alternative.

Adjustments to Other Aspects of the IBQ Program

Sub-Alternative E1a (No Action), which would make no changes to the
dealer reporting requirements implemented by Amendment 7, would have
direct, minor adverse economic impacts because it requires vessel
operators and dealers to collaborate in submitting information that is
also supplied independently by the vessel operators by way of VMS. The
requirement to verify information by submitting it in two different
reporting systems can be frustrating for fishermen. During the time-
period collecting two data streams, NMFS was able to verify information
that was collected and determine that VMS was the best approach for
submitting a single stream of dead discard data. The requirement for
fishermen to submit a personal identification number (PIN) when dealers
entered landings data was also frustrating and time consuming for
fishermen and dealers alike since fishermen were frequently either not
available when dealers entered the data, or did not have access to
their PIN. Fishermen chose to provide their PIN to dealers which
allowed the data to be entered, but did not provide the data
verification that was the objective of the original requirement.
Therefore, this alternative was not selected as the preferred
alternative.
Preferred Sub-Alternative E1b implemented by this final rule
modifies dealer reporting requirements for IBQ Program, and will have
minor, beneficial economic impacts for dealers since they will be
relieved of a reporting requirement (dead discards) and are no longer
required to collaborate with fishermen for landings data entry. The
removal of the PIN collaboration will reduce frustration for both
fishermen and dealers and thus reduce labor costs with this task.
Instead of being required to coordinate with the dealer to provide a
PIN in conjunction with a bluefin landing, a pelagic longline fisherman
will be informed via an automated email from the Catch Shares Online
System when dealers enter a landing transaction into the computer
system and a landing is accounted for in their vessel's account.
Sub-Alternative E2a, regarding electronic monitoring (EM) (the No
Action Alternative), would continue the current requirement that EM
hard drives be submitted after each trip using pelagic longline gear.
This alternative would maintain the current requirements for shipping
hard drives. Currently vessel owners or operators must mail hard drives
to NMFS after each fishing trip. When compared to the preferred
alternative, this would maintain a higher cost burden by requiring
transactions after each trip. This would also maintain a higher burden
in terms of time. Operators would have to spend time pulling,
packaging, and shipping hard drives after each trip, instead of after
every other trip. Therefore, this alternative was not selected as the
preferred alternative.

[[Page 59992]]

Preferred Sub-Alternative E2b implemented by this final rule will
require that the vessel operator mail the hard drives at the completion
of every two trips, instead of after each pelagic longline fishing
trip. This alternative will have a minor beneficial economic impact by
reducing the costs and time associated with mailing EM hard drives.
This measure will reduce the frequency of hard drive shipments and
reduce the number of transactions by half. Considering the high
transaction average of 34 shipments per year, this would reduce the
high average to 17 shipments. Each active vessel would still ship at
least 1 hard drive per year, as NMFS would require any data recorded in
a given year be submitted to NMFS prior to the next fishing year.
Assuming a shipping cost of $20 per transaction, this reduction in
shipping frequency would save operators an average of $120 per year.
Reducing shipping frequency also saves vessel operators additional time
and logistics, by only having to pull, package, and ship hard drives
after every other trip. The time savings provided by this alternative
are difficult to quantify, as vessel operators' shipping methods will
influence the amount of time saved, however this would provide a minor
beneficial impact by providing time-savings to the vessel operators.
For these reasons, this alternative was selected as the preferred
alternative.
Sub-Alternative E3a, regarding the EM Program (the No Action
Alternative), would not clarify the current procedures regarding EM
camera installation and would not provide NMFS with any additional
authority regarding installation of hardware on vessels. Vessel
operators would continue to operate as they have since implementation
of the EM program, thus economic impacts are neutral. This alternative
was rejected because it would not facilitate improvements in the
accuracy of the EM data, and would have indirect, minor and adverse
ecological impacts.
Through this final rule (Preferred Sub-Alternative E3b), NMFS
clarifies that it may require installation of permanent or semi-
permanent hardware (boom or telescoping device) in order to mount and
install EM video cameras at locations on vessels as necessary to obtain
optimal views, and that NMFS, working in conjunction with the vessel
owner/operator, may make relatively minor modifications to the vessel
structure to mount cameras in locations that provide required views of
the vessel and adjacent areas. If installation of hardware is needed,
the economic impacts of modifying the camera installation and placement
would be minor adverse for the affected, small entities, due to the
estimated cost of approximately $1,000 per vessel, unless agency
funding were to be available. Vessel crew would be required to extend,
lower, or raise the boom mounted camera during fishing activities if
needed. Additional logistics required may represent an increased time
burden and a slight increase in the complexity of their fishing
operation. Overall however, this time burden would only be a couple of
minutes to extend, lower, or raise at the start and end of each fishing
trip. Crew may also be required to access the camera during the trip in
order to clean the lens. The process of cleaning the lens may be more
difficult if the camera is mounted on a boom. Although this alternative
has associated costs as described above, it would also increase the
likelihood of improved data collection, and have indirect, minor, and
beneficial ecological impacts. Data that is more robust is likely to
provide ecological benefits in the long-term. Therefore, this
alternative was selected as the preferred alternative.
Sub-Alternative E4a, the No Action Alternative (no additional fish
handling protocols or requirements for measuring grids) for electronic
monitoring, would have neutral economic impacts and no labor or
equipment costs to vessel operators. This alternative was not selected
as the preferred alternative because it would not facilitate improved
data collection and would have minor adverse ecological impacts.
Preferred Sub-Alternative E4b implemented by this final rule will
require more specific fish handling procedures and the installation/
placement of a measuring grid on deck, in view of one of the cameras.
This alternative will have minor adverse impacts as it would slightly
increase costs in terms of the time required to process fish, or costs
associated with a measurement tool such as a printed processing carpet
or painted grid on the deck.

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