30730 Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 

approved FMEPs that specifies the 

implementation and reporting 

requirements; evaluate FMEPs every 5 

years and identify changes that would 

improve their effectiveness; and provide 

a public comment period (≥30 days) 

before withdrawing approval of an 

FMEP. 

(3) Tribal Exemptions. The 

prohibitions of paragraph (a) of this 

section relating to the threatened 

Southern DPS listed in § 223.102(c)(1) 

do not apply to fishery harvest or other 

activities undertaken by a tribe, tribal 

member, tribal permittee, tribal 

employee, or tribal agent in Willapa 

Bay, WA, Grays Harbor, WA, Coos Bay, 

OR, Winchester Bay, OR, Humboldt 

Bay, CA, and any other area where tribal 

treaty fishing occurs, if those activities 

are compliant with a tribal resource 

management plan (Tribal Plan), 

provided that the Secretary determines 

that implementation of such Tribal Plan 

will not appreciably reduce the 

likelihood of survival and recovery of 

the Southern DPS. In making that 

determination the Secretary shall use 

the best available biological data 

(including any tribal data and analysis) 

to determine the Tribal Plan’s impact on 

the biological requirements of the 

species, and will assess the effect of the 

Tribal Plan on survival and recovery, 

consistent with legally enforceable tribal 

rights and with the Secretary’s trust 

responsibilities to tribes. 

(i) A Tribal Plan may include, but is 

not limited to, plans that address fishery 

harvest, artificial production, research, 

or water or land management, and may 

be developed by one tribe or jointly 

with other tribes. The Secretary will 

consult on a government-to-government 

basis with any tribe that so requests and 

will provide, to the maximum extent 

practicable, technical assistance in 

examining impacts on the Southern DPS 

as tribes develop Tribal Plans. A Tribal 

Plan must specify the procedures by 

which the tribe will enforce its 

provisions. 

(ii) Where there exists a Federal court 

proceeding with continuing jurisdiction 

over the subject matter of a Tribal Plan, 

the plan may be developed and 

implemented within the ongoing 

Federal Court proceeding. In such 

circumstances, compliance with the 

Tribal Plan’s terms shall be determined 

within that Federal Court proceeding. 

(iii) The Secretary shall seek comment 

from the public on the Secretary’s 

pending determination whether 

implementation of a Tribal Plan will 

appreciably reduce the likelihood of 

survival and recovery of the listed 

Southern DPS. 

(iv) The Secretary shall publish 

notification in the Federal Register of 

any determination regarding a Tribal 

Plan and the basis for that 

determination. 

(d) The exceptions of section 10 of the 

ESA (16 U.S.C. 1539) and other 

exceptions under the ESA relating to 

endangered species, including 

regulations in part 222 of this chapter II 

implementing such exceptions, also 

apply to the threatened Southern DPS of 

North American green sturgeon listed in 

§ 223.102(c)(1). Federal, state, and 

private-sponsored research activities for 

scientific research or enhancement 

purposes that are not covered under 

Scientific Research and Monitoring 

Exceptions as described in paragraph 

(b)(1) of this section or Scientific 

Research and Monitoring Exemptions as 

described in paragraph (c)(1) of this 

section, may take Southern DPS fish 

pursuant to the specifications of an ESA 

section 10 permit. Section 9(a)(1)(B) and 

(a)(1)(C) take prohibitions would not 

apply to ongoing research activities if an 

application for an ESA section 

10(a)(1)(A) permit is received by NMFS, 

preferably through the NMFS online 

application Web site https:// 

apps.nmfs.noaa.gov, no later than 

November 29, 2010. The take 

prohibitions would take effect if the 

permit application is rejected as 

insufficient or a permit is denied. If the 

permit application is received by 

November 29, 2010, ongoing research 

activities may continue without take 

prohibitions until NMFS issues or 

denies a permit. 

(e) Affirmative Defense. In connection 

with any action alleging a violation of 

the prohibitions of paragraph (a) of this 

section with respect to the threatened 

Southern DPS of North American green 

sturgeon listed in § 223.102(c)(1), any 

person claiming that his or her take is 

authorized via methods listed in 

paragraph (b) of this section shall have 

a defense where the person can 

demonstrate that the take authorization 

is applicable and was in force, and that 

the person fully complied with the take 

authorization requirements at the time 

of the alleged violation. This defense is 

an affirmative defense that must be 

raised, pleaded, and proven by the 

proponent. If proven, this defense will 

be an absolute defense to liability under 

section 9(a)(1)(G) of the ESA with 

respect to the alleged violation. 

[FR Doc. 2010–13233 Filed 6–1–10; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

RIN 0648–XW54 

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 

General category retention limit 

adjustment. 

SUMMARY: NMFS has determined that 

the Atlantic tunas General category 

daily Atlantic bluefin tuna (BFT) 

retention limit should be adjusted for 

the June through August 2010 time 

period, based on consideration of the 

regulatory 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). 

DATES: Effective June 1, 2010, through 

August 31, 2010. 

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 

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 2006 Consolidated 

Highly Migratory Species Fishery 

Management Plan (2006 Consolidated 

HMS FMP) (71 FR 58058, October 2, 

2006). 

The 2010 BFT fishing year, which is 

managed on a calendar-year basis and 

subject to an annual calendar year 

quota, began January 1, 2010. The 

General category season, which was 

open for the month of January 2010, 

resumes on June 1, 2010, and continues 

through December 31, 2010. Starting on 

June 1, the General category daily 

retention limit (§ 635.23(a)(2)), is 

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Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 30731 

scheduled to revert back to the default 

retention limit of one large medium or 

giant BFT (measuring 73 inches (185 

cm) CFL) or greater per vessel per day/ 

trip. This default 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 and 

quota is available. For the 2009 fishing 

year, NMFS adjusted the General 

category limit from the default level of 

one large medium or giant BFT as 

follows: two large medium or giant BFT 

for January, and three large medium or 

giant BFT for June through December 

(73 FR 76972, December 18, 2008; 74 FR 

26110, June 1, 2009; and 74 FR 44296, 

August 28, 2009). NMFS adjusted the 

January 2010 limit to two large medium 

or giant BFT (74 FR 68709, December 

29, 2009). 

The 2008 ICCAT recommendation 

regarding Western BFT management 

resulted in a U.S. quota of 1,034.9 mt for 

2009, and 977.4 mt for 2010. Consistent 

with the allocation scheme established 

in the Consolidated HMS FMP, the 

baseline General category share was 

475.7 mt for 2009, and is 448.6 mt for 

2010. The baseline June-August General 

category subquota was 237.8 mt for 

2009, and is 224.3 mt for 2010. 

In order to implement the ICCAT 

recommendation for the 2010 fishing 

year, NMFS has proposed quota 

specifications to set BFT quotas for each 

of the established domestic fishing 

categories and expects to publish the 

final specifications by early June 2010. 

The proposed June-August 2010 

subquota is 269.4 mt. 

Adjustment of General Category Daily 

Retention Limits 

Under § 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 

§ 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 has considered the set of 

criteria cited above and their 

applicability to the General category 

BFT retention limit for the June-August 

2010 General category fishery. Based on 

General category landings rates during 

the June through August time-period 

over the last several years, it is highly 

unlikely that the June through August 

subquota will be filled with the default 

daily retention limit of one BFT per 

vessel. For example, under the threefish limit that applied in June-August 

2009, June-August landings were 54 mt 

out of an available 311.5 mt. In addition 

to the adjusted June-August 2010 

subquota of 269.4 mt, 25.9 mt of the 

adjusted January 2010 subquota was 

unused and automatically rolls forward 

to the June-August 2010 subquota, per 

§ 635.27(a)(1)(ii), resulting in an 

available quota of 295.3 mt for the JuneAugust 2010 period. Slow catch rates 

early in the season could result in 

unused quota being added to the later 

portion of the General category season. 

Increasing the daily retention limit from 

the default may mitigate rolling an 

excessive amount of unused quota from 

one time-period subquota to the next. 

Excessive rollover is undesirable 

because it effectively changes the timeperiod subquota allocation percentages 

established in the 2006 Consolidated 

HMS FMP. 

Based on considerations of the 

available quota, fishery performance in 

recent years, and the availability of BFT 

on the fishing grounds, NMFS has 

determined that the General category 

retention limit should be adjusted to 

allow for retention of the anticipated 

2010 General category quota, and that 

the same approach used for June-August 

2009 is warranted. Therefore, NMFS 

increases the General category retention 

limit from the default limit of one large 

medium or giant BFT to three large 

medium or giant BFT per vessel per 

day/trip, effective June 1, 2010, through 

August 31, 2010. 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 those vessels permitted in the 

General category as well as to those 

HMS Charter/Headboat permitted 

vessels fishing commercially for BFT. 

This adjustment is intended to 

provide a reasonable opportunity to 

harvest the U.S. 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. 

Monitoring and Reporting 

NMFS selected the daily retention 

limit for June-August 2010 after 

examining an array of data as it pertains 

to the determination criteria. These data 

included, but were not limited to, 

current and previous catch and effort 

rates in the BFT fisheries, 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 or subsequent adjustments to 

the daily retention limits, 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 

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, 

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30732 Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 

the migratory nature of this species, and 

the regional variations in the BFT 

fishery. Under § 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 § 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. 

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 these retention 

limits 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 for U.S. 

fishermen who depend upon catching 

the available quota within the time 

periods designated in the Consolidated 

HMS FMP. Adjustment of the retention 

limit needs to be effective June 1, 2010, 

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 for fishermen who have 

access to the fishery only 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 (i.e., the default General 

category retention limit is one fish per 

vessel/trip whereas this action increases 

that limit and allows retention of 

additional fish), there is also 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: May 26, 2010. 

Emily H. Menashes, 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 2010–13204 Filed 5–27–10; 4:15 pm] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

[Docket No. 100317152–0176–01] 

RIN 0648–AY77 

Atlantic Highly Migratory Species; 

2010 Atlantic Bluefin Tuna Quota 

Specifications 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS is establishing Atlantic 

bluefin tuna (BFT) quota specifications 

for 2010. This action is necessary to 

implement recommendations of the 

International Commission for the 

Conservation of Atlantic Tunas (ICCAT), 

as required by the Atlantic Tunas 

Convention Act (ATCA), and to achieve 

domestic management objectives under 

the Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act). 

DATES: Effective July 2, 2010. 

ADDRESSES: Supporting documents, 

including the Supplemental 

Environmental Assessment, Regulatory 

Impact Review, and Final Regulatory 

Flexibility Analysis, are available from 

Sarah McLaughlin, Highly Migratory 

Species (HMS) Management Division, 

Office of Sustainable Fisheries (F/SF1), 

NMFS, 55 Great Republic Drive, 

Gloucester, MA 01930. These 

documents are also available from the 

HMS Management Division website at 

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

at the Federal e-Rulemaking Portal: 

http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Sarah McLaughlin, 978–281–9260. 

SUPPLEMENTARY INFORMATION: Atlantic 

tunas are managed under the dual 

authority of the Magnuson-Stevens Act 

and ATCA. ATCA authorizes the 

Secretary of Commerce (Secretary) to 

promulgate regulations, as may be 

necessary and appropriate, to 

implement ICCAT recommendations. 

The authority to issue regulations under 

the Magnuson-Stevens Act and ATCA 

has been delegated from the Secretary to 

the Assistant Administrator for 

Fisheries, NOAA (AA). 

Background 

Background information about the 

need for the 2010 BFT quota 

specifications was provided in the 

preamble to the proposed rule (74 FR 

63095, December 2, 2009), and is not 

repeated here. 

Changes from the Proposed Rule 

Consistent with NMFS’ 

implementation of the 2009 BFT Quota 

Specifications, NMFS establishes the 

2010 U.S. baseline quota at the ICCATrecommended level and carries over the 

full amount of available BFT 

underharvest allowed by ICCAT from 

2009 to 2010, and distributes that 

underharvest to: (1) provide the 

Longline category sufficient quota to 

operate during 2010 after the required 

accounting for BFT dead discards; (2) 

maintain up to 15 percent of the 2010 

U.S. quota in Reserve for potential 

transfer to other ICCAT contracting 

parties and other domestic management 

objectives, if warranted; and (3) provide 

the non-Longline quota categories a 

share of the remainder of the 

underharvest consistent with the 

allocation scheme established in the 

2006 Consolidated Atlantic Highly 

Migratory Species Fishery Management 

Plan (Consolidated HMS FMP). 

When NMFS prepared the proposed 

rule, landings information was 

incomplete, and NMFS anticipated the 

full amount of 2009 underharvest 

allowed under the 2008 ICCAT 

recommendation for the western 

Atlantic bluefin tuna stock (ICCAT 

Recommendation 08–04), i.e., 50 

percent of the U.S. quota, or 488.7 mt, 

would be available and carried forward 

to 2010. NMFS indicated that 

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