[Federal Register Volume 74, Number 166 (Friday, August 28, 2009)]
[Rules and Regulations]
[Pages 44296-44298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20806]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

RIN 0648-XQ90


Atlantic Highly Migratory Species; Atlantic Bluefin Tuna 
Fisheries

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

ACTION: Temporary rule; inseason retention limit adjustment and quota 
transfer.

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SUMMARY: NMFS has determined that the Atlantic tunas General category 
daily Atlantic bluefin tuna (BFT) retention limit should be adjusted 
for the September, October-November, and December time periods of the 
2009 fishing year, based on consideration of the determination criteria 
regarding inseason adjustments. This action applies to Atlantic Tunas 
General category permitted vessels and Highly Migratory Species 
Charter/Headboat category permitted vessels (when fishing commercially 
for BFT). NMFS has also determined that a quota transfer to allow 
continued fishing in the Harpoon category is appropriate, and therefore 
transfers 25 metric tons (mt) from the Reserve to the Harpoon category 
for the remainder of the 2009 fishing year. This action applies to 
Atlantic Tunas Harpoon category permitted vessels.

DATES: The effective dates for the adjusted BFT daily retention limits 
are September 1, 2009, through December 31, 2009. The quota transfer to 
the Harpoon category is effective August 28, 2009, through November 15, 
2009.

FOR FURTHER INFORMATION CONTACT: Sarah McLaughlin or Brad McHale, 978-
281-9260.

SUPPLEMENTARY INFORMATION: Regulations implemented under the authority 
of the Atlantic Tunas Convention Act (16 U.S.C. 971 et seq.) and the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of BFT by

[[Page 44297]]

persons and vessels subject to U.S. jurisdiction are found at 50 CFR 
part 635. Section 635.27 subdivides the U.S. BFT quota recommended by 
the International Commission for the Conservation of Atlantic Tunas 
(ICCAT) among the various domestic fishing categories, per the 
allocations established in the Consolidated Highly Migratory Species 
Fishery Management Plan (Consolidated HMS FMP). The latest (2008) ICCAT 
recommendation for western Atlantic BFT included a U.S. quota of 
1,034.9 mt for 2009.
    The 2009 fishing year began on January 1, 2009, and ends December 
31, 2009. The General category fishery is open until December 31, 2009, 
or until the General category quota is reached. The Harpoon category 
fishery is open until November 15, 2009, or until the Harpoon category 
quota is reached.

Adjustment of General Category Daily Retention Limit

    Under 50 CFR 635.23(a)(4), NMFS may increase or decrease the daily 
retention limit of large medium and giant BFT over a range of zero to a 
maximum of three per vessel based on consideration of the criteria 
provided under Sec.  635.27(a)(8), which include: the usefulness of 
information obtained from catches in the particular category for 
biological sampling and monitoring of the status of the stock; the 
catches of the particular category quota to date and the likelihood of 
closure of that segment of the fishery if no adjustment is made; the 
projected ability of the vessels fishing under the particular category 
quota to harvest the additional amount of BFT before the end of the 
fishing year; the estimated amounts by which quotas for other gear 
categories of the fishery might be exceeded; effects of the adjustment 
on BFT rebuilding and overfishing; effects of the adjustment on 
accomplishing the objectives of the fishery management plan; variations 
in seasonal distribution, abundance, or migration patterns of BFT; 
effects of catch rates in one area precluding vessels in another area 
from having a reasonable opportunity to harvest a portion of the 
category's quota; and a review of dealer reports, daily landing trends, 
and the availability of the BFT on the fishing grounds.
    NMFS published final specifications on June 1, 2009 (74 FR 26110), 
and increased the default General category daily retention limit of one 
large medium or giant BFT (measuring 73 inches (185 cm) curved fork 
length (CFL) or greater) per vessel to three large medium or giant BFT 
per vessel for June 1 through August 31, 2009. In addition, NMFS stated 
that it would consider adjustment of retention limits for future time 
periods, if warranted.
    As of July 31, 2009, 53.5 mt of the adjusted 2009 General category 
quota have been landed, and landings rates remain less than 1.0 mt per 
day. Starting on September 1, 2009, the General category daily 
retention limit, located at 50 CFR 635.23(a)(2), is scheduled to revert 
back to the default daily retention limit of one large medium or giant 
BFT per vessel. This scheduled retention limit applies to General 
category permitted vessels and HMS Charter/Headboat category permitted 
vessels (when fishing commercially for BFT).
    Each of the General category time periods (January, June-August, 
September, October-November, and December) is allocated a portion of 
the annual General category quota, thereby ensuring extended fishing 
opportunities in years when catch rates are high. In consideration of 
the rollover of unused quota from the January and June-August time 
periods, current catch rates, and the daily retention limit reverting 
to one large medium or giant BFT per vessel per day on September 1, 
2009, NMFS anticipates the full 2009 fishing year General category 
quota will not be harvested. Increasing the daily retention limit from 
the default may mitigate rolling an excessive amount of unused quota 
from one time-period subquota to the subsequent time-period subquota. 
Excessive rollover is undesirable because it effectively changes the 
time-period subquota allocation percentages established in the 
Consolidated HMS FMP and may contribute to excessive carryovers to 
subsequent fishing years.
    NMFS has considered the set of criteria cited above and their 
applicability to the commercial BFT retention limit for the remainder 
of the 2009 fishing year. Based on these considerations, NMFS has 
determined that the General category retention should be adjusted to 
allow for retention of the established General category quota. 
Therefore, NMFS increases the General category retention limit from the 
default limits effective September 1, 2009, through December 31, 2009. 
Regardless of the duration of a fishing trip, the daily retention limit 
applies upon landing. For example, whether a vessel fishing under the 
General category limit takes a two-day trip or makes two trips in one 
day, the daily limit of three fish may not be exceeded upon landing. 
This General category retention limit is effective in all areas, except 
for the Gulf of Mexico, and applies to vessels permitted in the General 
category as well as to those HMS Charter/Headboat permitted vessels 
fishing commercially for BFT.
    In August 2008, NMFS followed a similar course of action and raised 
the General category retention limits via inseason action to allow for 
a three BFT daily retention limit throughout 2008 (73 FR 50885, August 
29, 2008). NMFS would address the January 2010 General category daily 
retention limit via a separate inseason action later in the year, if 
necessary. In December 2008, NMFS set the January 2009 General category 
BFT daily retention limit at two BFT per vessel via an inseason action 
(73 FR 76972, December 18, 2008), after considering dealer reports, 
daily landing trends, the winter fishery performance over the last few 
years, BFT availability, and the relatively small January General 
category baseline subquota.
    This adjustment is intended to provide a reasonable opportunity to 
harvest the U.S. landings quota of BFT without exceeding it, while 
maintaining an equitable distribution of fishing opportunities, to help 
achieve optimum yield in the General category BFT fishery, to collect a 
broad range of data for stock monitoring purposes, and to be consistent 
with the objectives of the Consolidated HMS FMP.

Inseason Transfer to the Harpoon Category

    Under Sec.  635.27(a)(7), NMFS has the authority to allocate any 
portion of the Reserve to any category quota in the fishery, other than 
the Angling category school BFT subquota (for which there is a separate 
reserve), after considering determination criteria provided under Sec.  
635.27(a)(8).
    The 2009 annual BFT quota specifications (74 FR 26110, June 1, 
2009) provide for an adjusted quota of 51.6 mt of large medium and 
giant BFT to be harvested from the regulatory area by vessels fishing 
under the Harpoon category quota. As of August 11, 2009, Harpoon 
category landings totaled 37.7 mt, with 13.9 mt available for the 
remainder of the season.
    After considering the factors for making transfers between 
categories and from the Reserve, NMFS has determined that 25 mt of the 
180.4 mt of Reserve should be transferred to the Harpoon category. 
Thus, the Harpoon category quota is adjusted to 76.6 mt for the 2009 
fishing year. Once the adjusted Harpoon category quota has been 
reached, or November 15, 2009, whichever comes first, the Harpoon 
category will be closed.

Monitoring and Reporting

    NMFS selected the General category daily retention limit and the 
duration after examining an array of data as it

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pertains to the determination criteria. These data included, but were 
not limited to, current and previous catch and effort rates, quota 
availability, previous public comments on inseason management measures, 
stock status, etc. NMFS will continue to monitor the BFT fishery 
closely through the mandatory dealer landing reports, which NMFS 
requires to be submitted within 24 hours of a dealer receiving BFT. 
Depending on the level of fishing effort and catch rates of BFT, NMFS 
may determine that additional retention limit adjustments are necessary 
to ensure available quota is not exceeded or to enhance scientific data 
collection from, and fishing opportunities in, all geographic areas.
    Closures of the General and Harpoon categories or subsequent 
adjustments to the General category daily retention limit, if any, will 
be published in the Federal Register. In addition, fishermen may call 
the Atlantic Tunas Information Line at (888) 872-8862 or (978) 281-
9260, or access the internet at www.hmspermits.gov, for updates on 
quota monitoring and retention limit adjustments.

Classification

    The Assistant Administrator for NMFS (AA), finds that it is 
impracticable and contrary to the public interest to provide prior 
notice of, and an opportunity for public comment on, this action for 
the following reasons:
    The regulations implementing the Consolidated HMS FMP provide for 
inseason retention limit adjustments to respond to the unpredictable 
nature of BFT availability on the fishing grounds, the migratory nature 
of this species, and the regional variations in the BFT fishery. 
Affording prior notice and opportunity for public comment to implement 
these retention limits is impracticable as it would preclude NMFS from 
acting promptly to allow harvest of BFT that are available on the 
fishing grounds. Analysis of available data shows that the General 
category BFT retention limits may be increased with minimal risks of 
exceeding the ICCAT-allocated quota.
    Delays in increasing the daily retention limit would adversely 
affect those General and Charter/Headboat category vessels that would 
otherwise have an opportunity to harvest more than the default 
retention limit of one BFT per day and may exacerbate the problem of 
low catch rates and quota rollovers. Limited opportunities to harvest 
the respective quotas may have negative social and economic impacts to 
U.S. fishermen that either depend upon catching the available quota 
within the time periods designated in the Consolidated HMS FMP. 
Adjustment to the retention limit must be effective September 1, 2009, 
to minimize any unnecessary disruption in fishing patterns and for the 
impacted sectors to benefit from the adjustments so as to not preclude 
fishing opportunities from fishermen who only have access to the 
fishery during this time period.
    Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to 
waive prior notice and the opportunity for public comment. For all of 
the above reasons, and because this action relieves a restriction by 
increasing the General category retention limit from the default of one 
fish per vessel/trip to three fish per vessel/trip, the AA also finds 
good cause under 5 U.S.C. 553(d) to waive the 30-day delay in 
effectiveness. This action is being taken under 50 CFR 635.23(a)(4) and 
(b)(3) and is exempt from review under Executive Order 12866.

    Authority: 16 U.S.C. 971 et seq. and 1801 et seq.

    Dated: August 24, 2009.
Kristen C. Koch,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. E9-20806 Filed 8-25-09; 4:15 pm]
BILLING CODE 3510-22-S