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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 635
          - RIN 0648-XF39

# AGENCY:

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

# ACTION:

Temporary rule; inseason retention limit adjustment.

# SUMMARY:

NMFS has determined that the daily Highly Migratory Species (HMS) Angling category retention limits for Atlantic bluefin tuna (BFT) should be adjusted in order to prevent overharvest of the 2008 Angling category quota. Vessels permitted in the HMS Angling and HMS Charter/Headboat categories are eligible to land BFT under the HMS Angling category quota. This action is being taken to meet domestic management objectives for the BFT fishery.

# DATES:

Effective February 11, 2008, through December 31, 2008.

# FOR FURTHER INFORMATION CONTACT:

Sarah McLaughlin, 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 Consolidated Highly Migratory Species Fishery Management Plan (Consolidated HMS FMP) (71 FR 58058, October 2, 2006).                

The 2008 BFT fishing year began on January 1, 2008, and ends December 31, 2008. The final 2008 BFT quota specifications and effort controls were published on December 31, 2007 (72 FR 74193). These final specifications established an Angling category retention limit of one school BFT (27 inches (68.6 cm) to less than 47 inches (199.4 cm)), and two large school/small medium BFT (i.e., two BFT measuring 47 inches (119.4 cm) to less than 73 inches (185.4 cm)) per vessel per day/trip. NMFS stated in the 2008 final specifications and effort controls that adjustments to the 2008 Angling category quotas and retention limits may be necessary once complete estimates from the Large Pelagics Survey (LPS) for the 2007 fishing year were available.

Final LPS 2007 fishing year estimates of the number of fish landed are now available, although mean weight estimates for each size class will not be available until late spring to calculate total landings (weight) and for comparison of landings to available subquotas. Pending availability of final average weight calculations from the 2007 fishing year, NMFS is proceeding with use of the average of 2004-2006 mean weights as proxies for 2007 mean weights, to reflect recent fishery conditions and reduce the effect of inter-annual variability of fish size that may result from varying retention limits, weather conditions, etc. This methodology results in recreational estimates, including LPS estimates and NC BFT Census Tagging Program data, of 100.9 mt of school BFT, 256.3 mt of large school BFT, and 105.7 mt of small medium BFT. Note that the final LPS estimates (in number of fish) indicate a substantial overharvest of the large school/small medium BFT subquota regardless of the reference time frame selected for use of proxy mean weights to calculate the final recreational landings (in tonnage). The estimated landings of large school/small medium BFT (362 mt) were more than twice the allocated subquota for that size range (144 mt). With total estimated recreational landings of 464.1 mt, the total Angling category quota of 269.2 mt also has been exceeded. However, due to the magnitude of the underharvest of the total available quota (which, for 2007, was 1,629 mt), no quota redistribution for the 2007 fishing year is necessary, nor is any adjustment of the Angling category quota for 2008. Specifically, total commercial and recreational landings for the 2007 fishing year were 656.7 mt, resulting in an underharvest of 997.5 mt, which exceeds substantially the amount the United States was allowed to carry forward to the 2008 fishing year (i.e., 595 mt, one half of the U.S. base quota).

Despite the availability of overall quota, it is necessary for NMFS to use this best available information to take prompt action to avoid overharvest in 2008, to remain in accordance with the Consolidated HMS FMP and implement quota specifications, and address concern for the biological impact of overharvesting smaller size classes of BFT on the stock, which is classified as overfished. Therefore, to reduce large school/small medium BFT landings for 2008, NMFS is taking action through an inseason retention limit adjustment, described below.

                    Under § 635.23(b)(3), NMFS may increase or decrease the HMS Angling                           ( print page 7480)                        category daily retention limit based on the criteria provided in § 635.27(a)(8). As discussed above, the determination to adjust the retention limit is primarily based on the catches of large school/small medium BFT in 2007 and the likelihood of closure of that segment of the fishery if no adjustment is made (§ 635.27(a)(8)(ii)), and the anticipated availability of large school/small medium BFT on the fishing grounds § 635.27(a)(8)(ix). NMFS anticipates that reduction of the retention limit for large school/small medium BFT will result in landings during 2008 that would not exceed the available subquota (183.4 mt) as set in the 2008 quota specifications (72 FR 74193, December 31, 2007).                

## Daily Retention Limits

Pursuant to this action and the final 2008 BFT specifications, noted above, the BFT daily retention limit per vessel for the HMS Angling category and the HMS Charter/Headboat category (while fishing recreationally) is one BFT measuring 27 inches (68.6 cm) to less than 47 inches (119.4 cm), and one BFT measuring 47 inches (119.4 cm) to less than 73 inches (185.4 cm). In the case of multi-day trips, the daily limit applies. This action does not change the annual Angling category limit of one large medium or giant BFT (73 inches (185.4 cm) or greater) per vessel.

## Monitoring and Reporting

                    NMFS selected the daily retention limit to apply for the remainder of 2008, or until changed, after examining current and previous fishing year catch and effort rates, taking into consideration public comment on the annual specifications, and analyzing the available quota for the 2008 fishing year. NMFS will continue to monitor the BFT fishery closely through dealer landing reports, the Automated Landings Reporting System, state harvest tagging programs in North Carolina and Maryland, and the LPS. Depending on the level of fishing effort, NMFS may determine that additional retention limit adjustments are necessary prior to December 31, 2008. 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 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. LPS Angling category estimates and NC recreational census data, recently made available, indicate an overharvest of the Angling category quota in 2007, particularly the large school/small medium BFT subquota. An adjustment to the daily retention limit for large school/small medium BFT is warranted. Delaying this action would be contrary to the public interest because it could result in insufficient reduction of large school/small medium BFT landings and could result in more restrictive actions being needed later in the season (such as seasonal closures). Further, for fishing trip planning purposes, NMFS seeks to provide as much notice as possible about the fishing regulations that will apply during the active portion of the fishing year (beginning in late spring) so that anglers and charter/headboat operators can plan their fishing trips accordingly.

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, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness of this action.

This action is being taken under 50 CFR 635.23(a)(4) and is exempt from review under Executive Order 12866.

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

Dated: February 5, 2008.

Emily H. Menashes

Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

[FR Doc. E8-2349 Filed 2-7-08; 8:45 am]

BILLING CODE 3510-22-S