26110 Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Rules and Regulations 

insurance of a QDN do not constitute 

excusable delay under the default clause 

of this contract. Failure to complete 

corrective action in a timely manner 

may result in termination of the 

contract. 

(3) This contract may be terminated 

for default if subsequent Government 

inspection discloses that plant quality 

or process controls are not being 

maintained, supplies that do not meet 

the requirements of the contract are 

being shipped, or if the contractor fails 

to comply with any other requirement of 

this clause. 

(e) Additional cost for inspection and 

testing. The Contractor shall be charged 

for any additional cost of inspection/ 

testing or reinspecting/retesting 

supplies for the reasons stated in 

paragraph (e) of FAR 52.246–2, 

Inspection of Supplies—Fixed Price. 

When inspection or testing is performed 

by or under the direction of GSA, 

charges will be at the rate of 

$llll**llll per man-hour or 

fraction thereof if the inspection is at a 

GSA distribution center; 

$llll**llll per man-hour or 

fraction thereof, plus travel costs 

incurred, if the inspection is at any 

other location; and $llll**llll 

per man-hour or fraction thereof for 

laboratory testing, except that when a 

testing facility other than a GSA 

laboratory performs all or part of the 

required tests, the Contractor shall be 

assessed the actual cost incurred by the 

Government as a result of testing at such 

facility. When inspection is performed 

by or under the direction of any agency 

other than GSA, the charges indicated 

above may be used, or the agency may 

assess the actual cost of performing the 

inspection and testing. 

(f) Responsibility for rejected supplies. 

When the Contractor fails to remove or 

provide instructions for the removal of 

rejected supplies under paragraph (d) of 

this clause, pursuant to the Contracting 

Officer’s instructions, the Contractor 

shall be liable for all costs incurred by 

the Government in taking such 

measures as are expedient to avoid 

unnecessary loss to the Contractor. In 

addition to the remedies provided in 

FAR 52.246–2, supplies may be— 

(1) Stored and charged against the 

Contractor’s account; 

(2) Reshipped to the Contractor at its 

expense (any additional expense 

incurred by the Government or the 

freight carrier caused by the refusal of 

the Contractor to accept their return 

shall also be charged against the 

Contractor’s account); 

(3) Sold to the highest bidder on the 

open market and the proceeds applied 

against the accumulated storage and 

other costs, including the cost of the 

sale; or 

(4) Otherwise disposed of by the 

Government. 

(g) Subcontracting requirements. The 

Contractor shall insert in any 

subcontracts the inspection or testing 

provisions set forth in paragraphs (a) 

through (d) of this clause and the 

Inspection of Supplies—Fixed Price 

clause of this contract. The Contractor 

shall be responsible for compliance by 

any subcontractor with the provisions 

set forth in paragraphs (a) through (d) of 

this clause and the Inspection of 

Supplies—Fixed Price clause. 

(End of clause) 

*Normally insert 12 months as the period 

during which defective or otherwise 

nonconforming supplies must be replaced. 

However, when the supplies being bought 

have a shelf life of less than 1 year, you 

should use the shelf-life period, or in the 

instance where you reasonably expect a 

longer period to be available, you should use 

the longer period. 

**The rates to be inserted are established 

by the Commissioner of the Federal 

Acquisition Service or a designee. 

552.246–71 [Amended] 

■ 10. Amend section 552.246–71 by— 

■ a. Revising the date of the clause (June 

1, 2009); 

■ b. Removing from paragraph (c)(3) the 

words ‘‘the Virgin Islands’’ and adding 

the words ‘‘the U.S. Virgin Islands’’ in 

its place; and 

■ c. Removing from the undesignated 

paragraph after ‘‘(End of clause)’’ the 

words ‘‘Federal Supply Service’’ and 

adding the words ‘‘Federal Acquisition 

Service’’ in its place. 

552.246–73 [Removed] 

■ 11. Remove section 552.246–73. 

552.246–74 [Removed] 

■ 12. Remove section 552.246–74. 

552.246–75 [Removed] 

■ 13. Remove section 552.246–75. 

552.246–76 [Removed] 

■ 14. Remove section 552.246–76. 

■ 15. Add section 552.246–77 to read as 

follows: 

552.246–77 Additional Contract Warranty 

Provisions for Supplies of a Noncomplex 

Nature. 

As prescribed in 546.710(a), insert the 

following clause in solicitations and 

contracts that include FAR 52.246–17, 

Warranty of Supplies of a Noncomplex 

Nature. 

ADDITIONAL CONTRACT 

WARRANTY PROVISIONS FOR 

SUPPLIES OF A NONCOMPLEX 

NATURE (JUL 09) 

(a) Definitions. Correction, as used in 

this clause, means the elimination of a 

defect. 

(b) Contractor’s obligations. When 

return, correction, or replacement is 

required, the Contractor shall be 

responsible for all costs attendant to the 

return, correction, or replacement of the 

nonconforming supplies. Any removal 

in connection with the above shall be 

done by the Contractor at its expense. 

(c) Remedies available to the 

Government. When the nature of the 

defect in the nonconforming item is 

such that the defect affects an entire 

batch or lot of material, then the 

equitable price adjustment shall apply 

to the entire batch or lot of material 

from which the nonconforming item 

was taken. 

(End of clause) 

■ 16. Add section 552.246–78 to read as 

follows: 

552.246–78 Inspection at Destination. 

As prescribed in 546.302–72 insert 

the following clause: 

INSPECTION AT DESTINATION (JUL 

09) 

Inspection of all purchases under this 

contract will be made at destination by 

an authorized Government 

representative. 

(End of clause) 

[FR Doc. E9–12587 Filed 5–29–09; 8:45 am] 

BILLING CODE 6820–61–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

[Docket No. 080728943–9716–02] 

RIN 0648–AX12 

Atlantic Highly Migratory Species; 

2009 Atlantic Bluefin Tuna Quota 

Specifications and Effort Controls 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS announces the final 

rule to establish 2009 fishing year 

specifications for the Atlantic bluefin 

tuna (BFT) fishery, including quotas for 

each of the established domestic fishing 

categories and effort controls for the 

General category and Angling category. 

This action is necessary to implement 

recommendations of the International 

Commission for the Conservation of 

Atlantic Tunas (ICCAT), as required by 

Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Rules and Regulations 26111 

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: The rule is effective June 1, 2009, 

except that the General category 

retention limit found under the heading 

General Category Effort Controls is 

effective June 1, 2009 through August 

31, 2009, and the Angling category 

retention limit found under the heading 

Angling Category Effort Controls is 

effective June 1, 2009, through 

December 31, 2009. 

ADDRESSES: Supporting documents, 

including the 2009 Environmental 

Assessment (EA), Regulatory Impact 

Review (RIR), and Final Regulatory 

Flexibility Analysis (FRFA) and the 

2006 Consolidated Atlantic Highly 

Migratory Species Fishery Management 

Plan (Consolidated HMS FMP), are 

available from Sarah McLaughlin, 

Highly Migratory Species 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). The 

implementing regulations for Atlantic 

HMS are at 50 CFR part 635. 

I. Background 

Background information about the 

need for the BFT quota specifications 

and effort controls for the 2009 fishing 

year (January 1 through December 31, 

2009) was provided in the preamble to 

the proposed rule (74 FR 7577, February 

18, 2009) and is not repeated here. 

II. Changes from the Proposed Rule 

The proposed Angling category daily 

retention limit, for the entire season and 

for both the charter/headboat and 

private sectors of the fishery, was one 

school, large school, or small medium 

BFT (measuring 27 inches (68.6 cm) to 

less than 73 inches (185.4 cm)) per 

vessel. Since publication of the 

proposed rule, NMFS has decided to 

change the recreational daily retention 

limit to one school BFT (measuring 27 

inches to less than 47 inches (119.4 cm)) 

and one large school/small medium BFT 

(measuring 47 inches to less than 73 

inches) per vessel after taking additional 

information and several issues into 

consideration. 

First, NMFS has held internal and 

public discussions about the expected 

availability of school BFT to the fishery 

in 2009. After hearing from fishermen 

and reviewing catch size frequency data, 

NMFS predicts that 2009 landings will 

be similar to those in 2008 (which were 

54.6 mt out of an adjusted 2008 quota 

of 119 mt). Thus, there is less concern 

than at the proposed rule stage that the 

school BFT subquota for 2009 would be 

exceeded with a daily retention limit of 

one school BFT and one large school/ 

small medium BFT per vessel. 

Second, NMFS has examined a daily 

retention limit of one school BFT and 

one large school/small medium BFT per 

vessel in the context of stock rebuilding 

and has determined that, due to low 

availability of school BFT, it is likely to 

result in a pattern of fishing mortality 

(e.g., fish caught at each age) consistent 

with the one used in the last stock 

assessment. Thus, this recreational 

fishery retention limit would be 

consistent with the assumptions used in 

the latest BFT stock status projections, 

and would not be expected to affect the 

rebuilding timeframe. 

Third, NMFS has received extensive 

public comment (at the February 2009 

HMS Advisory Panel meeting, public 

hearings, and written comments) 

indicating that a one–fish daily 

retention limit would have negative 

socio–economic impacts, particularly 

for the charter sector (see Comments 

and Responses section). 

Lastly, landings over the last several 

years have been far below the total U.S. 

quota, and NMFS has not needed to 

make use of the Reserve, which is 

available for a variety of quota 

management purposes, including 

transfer to any quota category inseason 

or at the end of a fishing year. For 2009, 

there are over 180 mt available in the 

Reserve and NMFS does not currently 

intend or plan to make use of the ICCAT 

transfer provision to transfer BFT quota 

to another ICCAT Contracting Party in 

2009. Therefore, NMFS has the 

flexibility to allocate some or all of the 

Reserve quota to the Angling category 

quota at the end of the year, if needed 

and as available, to cover potential 

overharvest of the Angling category 

quota. 

For these reasons, the final rule 

implements an Angling category daily 

retention limit, for the entire season and 

for both the charter/headboat and 

private sectors of the fishery, of one 

school BFT, plus one large school/small 

medium BFT per vessel. This 

recreational daily retention limit is the 

same as implemented for the 2008 

fishing season. 

III. 2009 Final Quota Specifications 

In accordance with the 2008 ICCAT 

recommendation (Recommendation 08– 

04), the Consolidated HMS FMP 

percentage shares for each of the 

domestic categories, and regulations 

regarding annual adjustments at 

§ 635.27(a)(10), NMFS establishes final 

quota specifications for the 2009 fishing 

year as follows: General category –– 

623.1 mt; Harpoon category –– 51.6 mt; 

Purse Seine category –– 246.0 mt; 

Angling category –– 260.6 mt; Longline 

category –– 74.3 mt; and Trap category 

–– 1.3 mt. Additionally, 180.4 mt are 

allocated to the Reserve category for 

inseason adjustments, scientific 

research collection, potential 

overharvest in any category except the 

Purse Seine category, and potential 

quota transfers. 

The General category quota of 623.1 

mt is subdivided as follows: 33.0 mt for 

the period beginning January 1, 2009, 

and ending January 31, 2009; 311.5 mt 

for the period beginning June 1, 2009, 

and ending August 31, 2009; 165.1 mt 

for the period beginning September 1, 

2009, and ending September 30, 2009; 

81.0 mt for the period beginning 

October 1, 2009, and ending November 

30, 2009; and 32.4 mt for the period 

beginning December 1, 2009, and 

ending December 31, 2009. 

The Angling category quota of 260.6 

mt is subdivided as follows: School BFT 

–– 103.5 mt, with 39.8 mt to the 

northern area (north of 39°18’ N. 

latitude), 44.5 mt to the southern area 

(south of 39°18’ N. latitude), plus 19.1 

mt held in reserve; large school/small 

medium BFT –– 151.1 mt, with 71.3 mt 

to the northern area and 79.8 mt to the 

southern area; and large medium/giant 

BFT –– 6.0 mt, with 2.0 mt to the 

northern area and 4.0 mt to the southern 

area. 

The 25–mt Northeast Distant gear 

restricted area (NED) set–aside quota is 

in addition to the overall incidental 

longline quota to be subdivided in 

accordance with the North/South 

allocation percentages (i.e., no more 

than 60 percent to the south of 31° N. 

latitude). Thus, the Longline category 

quota of 74.3 mt is subdivided as 

follows: 29.7 mt to pelagic longline 

vessels landing BFT north of 31° N. 

26112 Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Rules and Regulations 

latitude and 44.6 mt to pelagic longline 

vessels landing BFT south of 31° N. 

latitude, with 25 mt set–aside for 

bycatch of BFT related to directed 

pelagic longline fisheries in the NED. 

NMFS accounts for landings under the 

25–mt NED allocation separately from 

other Longline category landings. 

IV. General Category Effort Controls 

Because of the large quota available 

for the General category, NMFS 

increases the daily retention limit of 

BFT for the June–August subperiod 

from the default one–fish retention limit 

to a three–fish limit. Therefore, persons 

aboard vessels permitted in the General 

category may retain three large medium 

or giant BFT (measuring 73 inches or 

greater) per vessel per day/trip from July 

1, 2009 through August 31, 2009. The 

BFT retention limit may be adjusted via 

inseason action, if warranted, under 

§ 635.23(a)(4). 

V. Angling Category Effort Controls 

This final rule establishes an Angling 

category retention limit of one school 

BFT (27 inches to less than 47 inches), 

and one large school/small medium BFT 

(47 inches to less than 73 inches) per 

vessel per day/trip. This retention limit 

is effective for persons aboard vessels 

permitted in the Angling category from 

July 1, 2009 through December 31, 2009. 

This retention limit may be adjusted via 

inseason action, if warranted, under 

§ 635.23(b)(3). 

VI. Comments and Responses 

Below, NMFS summarizes and 

responds to all comments made 

specifically on the proposed quota 

specifications and effort controls for the 

General and Angling categories. In 

addition, NMFS received comments on 

issues that were not considered part of 

this rulemaking. At the February 2009 

HMS Advisory Panel meeting and 

throughout the comment period for this 

action, numerous commenters requested 

that NMFS change or eliminate what 

they perceive as unnecessarily 

restrictive BFT fishing restrictions 

(given the low rate of landings in the 

past few years) so that 2009 BFT 

landings can be maximized. Many of 

these comments reflect concerns about 

potential future reductions in U.S. BFT 

quota due to low landings. These 

comments state that maximizing 

landings in 2009 will help show that the 

United States is capable of landing its 

quota, and that this is the only way to 

prevent loss of U.S. quota when BFT 

allocations are renegotiated at the 2010 

ICCAT meeting. However, some of these 

comments also reflect a 

misunderstanding of the ICCAT quota 

allocation process, i.e., western Atlantic 

BFT quota cannot be transferred to 

eastern Atlantic BFT ICCAT Contracting 

Parties. These comments are 

summarized under ‘‘Other Issues’’ 

below. 

A. BFT Quotas 

Comment 1: NMFS received few 

comments specifically on the quota 

specifications. Some commenters 

support the action as proposed because 

it is consistent with the BFT rebuilding 

program, and some continue to express 

concern that halfway through the 

rebuilding period, spawning biomass is 

below what it was at the beginning of 

the rebuilding period. Two 

environmental groups state that the 

proposed rule is inconsistent with the 

regulations regarding application of 

overharvest and underharvest (e.g., the 

amounts applied to the quota categories 

for 2009 are not equal to the amounts 

underharvested by those categories in 

2008) and deductions are not made for 

the quota categories that exceeded their 

subquotas. One specifies that the 

Longline category quota should be zero 

after accounting for dead discards. 

Response: The specifications included 

in this rule reflect appropriate 

distribution of the underharvest allowed 

to be carried forward for the 2009 

fishing year. Deductions are not made 

and are not required to be made for 

subquota categories that are exceeded 

where quota is available to cover such 

overharvest. Flexibility in quota 

distribution provides for several existing 

and potential management needs, 

namely: (1) ensuring that the Longline 

category has sufficient quota to operate 

during the 2009 fishing year while also 

accounting for BFT discards as required 

by ICCAT; (2) setting 15 percent of the 

2009 U.S. quota in reserve for potential 

transfer to other ICCAT Contracting 

Parties, if warranted; and (3) providing 

the non–Longline quota categories a 

share of the remainder of the 

underharvest consistent with the 

Consolidated HMS FMP allocation 

scheme. Further, the regulations 

regarding determination criteria and 

annual adjustment of the BFT quota at 

§ 635.27(a)(8) and (a)(10) allow NMFS to 

transfer quotas among categories based 

on several criteria (such as a review of 

landing trends, the projected ability of 

the vessels fishing under a 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 categories might 

be exceeded, the effects of the 

adjustment on accomplishing the 

objectives of the fishery management 

plan, etc.). This provides NMFS the 

flexibility to apply the underharvest to 

the overall quota for the following 

fishing year, and distribute the 

underharvest as needed, provided that 

the total of the adjusted category quotas 

and the Reserve is consistent with the 

ICCAT recommendation. 

Comment 2: Many commenters, 

including fishermen, academics, and 

environmental organizations, oppose 

the concept of a U.S. quota transfer to 

another ICCAT–contracting party for 

two main reasons. The first reason given 

by these commenters is that such action 

could set the stage for future permanent 

quota allocation reductions at ICCAT. 

The second reason suggested is that loss 

of U.S. quota could have negative stock 

impacts because other Contracting 

Parties implement less restrictive 

fishing measures, tend to catch the 

larger sized BFT, and/or take a high 

proportion of western origin BFT in 

their fisheries. Thus, it would be better 

for the stock if the quota were caught by 

U.S. vessels than vessels from less 

restrictive Contracting Parties. Some 

commenters misunderstood that the 

proposed rule actually proposed such a 

transfer as part of the proposed action. 

An industry representative suggests that 

NMFS fully allocate the underharvest 

carried forward from 2008 to the quota 

categories rather than holding a portion 

in the Reserve for potential transfer. 

Some commenters suggest that NMFS 

maintain the 155.2 mt that NMFS 

proposed to be held in Reserve for 

ICCAT transfer purposes and other 

domestic management purposes and 

instead use it specifically for covering 

potential Angling category overharvest 

(i.e., potential overharvest of the large 

school/small medium BFT subquota). 

Response: NMFS did not propose any 

specific quota transfer in the proposed 

rule, but proposed setting aside 155.2 

mt of 2008 underharvest in the Reserve 

category for potential transfer to other 

ICCAT contracting parties, if warranted, 

and for other domestic management 

objectives. 

NMFS does not currently intend or 

plan to make use of the ICCAT transfer 

provision to transfer BFT quota to 

another ICCAT Contracting Party in 

2009. As indicated in the proposed rule, 

the 2008 ICCAT recommendation allows 

the United States to transfer up to 15 

percent of the total U.S. quota, 

consistent with domestic obligations 

and conservation considerations. Before 

considering a possible quota transfer, 

the United States, through NMFS, 

would evaluate several factors, 

including the amount of quota proposed 

to be transferred, the projected ability of 

U.S. vessels to harvest the total U.S. 

BFT quota before the end of the fishing 

Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Rules and Regulations 26113 

year, the potential benefits of the 

transfer to U.S. fishing participants 

(such as access to the EEZ of the 

receiving Contracting Party for the 

harvest of a designated amount of BFT), 

potential ecological impacts, and the 

Contracting Party’s ICCAT compliance 

status. The United States would need to 

explore and analyze these factors prior 

to transferring quota through a separate 

action. In the proposed rule, NMFS 

proposed placing 155.2 mt (15 percent 

of the total U.S. quota) in the Reserve so 

that, if the United States were to 

approve a transfer, the quota could be 

from the Reserve and not from category– 

specific quotas. 

Because of the ICCAT–recommended 

limit on quota carryover and given the 

recent trend of substantial U.S. quota 

underharvest, distribution of 155.2 mt of 

carryover to individual quota categories 

in the final action would not result in 

substantially greater future fishing 

opportunities or effects on the fishery 

than holding that amount in Reserve. 

Further, as indicated above, the 

regulations allow NMFS to transfer 

quotas among categories based on the 

determination criteria. Under the final 

action, there would be over 180 mt 

available in the Reserve. Therefore, 

should a situation arise in which a BFT 

domestic quota transfer from the 

Reserve to a quota category is needed to 

avoid exceeding that category’s quota, 

NMFS could take action as appropriate 

(e.g., allocate some or all of the 180 mt 

of Reserve quota to the Angling category 

quota at the end of the year, if needed 

and as available, to cover potential 

overharvest of the Angling category 

quota). 

NMFS understands the concerns 

regarding the potential impact of other 

ICCAT Contracting Parties’ fishing 

activities on the BFT stock, specifically 

the concern that a greater proportion of 

those fish targeted and caught by other 

western Atlantic BFT Contracting 

Parties would be western origin 

(spawned) BFT than would result from 

U.S. fishing activities, given research 

showing a greater degree of mixed– 

origin (western Atlantic and eastern 

Atlantic/Mediterranean) BFT off the 

U.S. mid–Atlantic coast. Thus, as it is 

neither to the U.S. fishery’s nor the BFT 

stock’s benefit to transfer quota to 

another ICCAT Contracting Party, the 

United States currently has no plans to 

do so. 

B. General Category Effort Controls 

Comment 1: The specific comments 

NMFS received on the proposed General 

category daily retention limit included 

support for the proposed three–fish 

limit and request for a reduction to a 

two–fish limit to speed stock recovery. 

As summarized below, NMFS received 

numerous comments seeking that NMFS 

help maximize commercial landings 

within the commercial quota, 

particularly the General category quota. 

Many commenters stated that it is not 

necessary for NMFS to maintain a 

maximum daily retention limit (3 fish 

under current regulations), but to 

instead use inseason authority to set the 

daily retention limit as appropriate 

given available quota. Several 

commenters felt that NMFS should not 

loosen any restrictions because that 

could slow stock recovery. 

Response: The existing regulations 

allow NMFS to adjust the General 

category retention limit of large medium 

and giant BFT over a range of zero (on 

restricted–fishing days, which are not 

applicable for 2009) to three. Given the 

low early season harvest rate in recent 

years, NMFS is setting the June through 

August retention limit at three BFT to 

allow General category fishermen the 

maximum harvest of BFT possible 

under current regulations while keeping 

within the quota of the first General 

category subperiod. Stock recovery 

would be unaffected by this action. 

C. Angling Category Effort Controls 

Comment 1: Some commenters, 

including several environmental 

organizations, support the proposed 

Angling category daily retention limit of 

one school, large school, or small 

medium BFT (i.e., one fish measuring 

27 to less than 73 inches) per vessel (the 

current default limit) so that the ICCAT– 

recommended limit on school BFT is 

not exceeded and the Angling category 

quota overall is not exceeded, as it was 

in 2007 and 2008. However, the 

majority of commenters oppose this 

limit in the proposed action and request 

that NMFS maintain the 2008 daily 

retention limit of one school BFT (27 

inches to less than 47 inches) plus one 

large school/small medium BFT (47 

inches to less than 73 inches). Many 

commenters participate in the HMS 

Charter/Headboat fishery and maintain 

that it is extremely difficult to attract 

customers with a daily limit of only one 

BFT and that loss of charter bookings 

would have a negative economic impact 

on their business and other shoreside 

businesses in coastal communities. As 

above, some suggest using the Reserve 

to cover any recreational overharvests. 

Response: Since publication of the 

proposed rule, NMFS has reconsidered 

the recreational daily retention limit, 

taking several issues into consideration, 

including the extensive public comment 

received at the February 2009 HMS 

Advisory Panel meeting, public 

hearings, and in writing. NMFS 

understands the concern of captains that 

it is extremely difficult for captains to 

book charter trips when clients feel that 

only one person per vessel per day/trip 

would be able to retain a BFT, and that 

a reduction in charter trips would 

economically impact not only the 

charter business but also potentially the 

support businesses in the surrounding 

coastal communities. 

Following recent NMFS consideration 

of the public comment and the issues 

described in the Changes from the 

Proposed Rule section, including 

consistency with the BFT rebuilding 

Program, NMFS is establishing an 

Angling category daily retention limit of 

one school BFT (27 inches to less than 

47 inches) and one large school/small 

medium BFT (47 inches to less than 73 

inches). 

NMFS will need to consider closely 

the results of the 2009 fishing year (i.e., 

available landings information and the 

retention limits implemented for the 

2009 recreational fishery) when 

selecting the 2010 daily retention limit. 

The school BFT daily retention limit for 

2010 will need to be set such that the 

United States is consistent with the 

ICCAT–recommended 2-year tolerance 

limit for BFT less than 115 cm over the 

2009–2010 period. 

Comment 2: One commenter 

suggested that NMFS eliminate the large 

medium and giant (‘‘trophy’’) BFT 

fishery, i.e., the annual Angling category 

limit per vessel of one BFT measuring 

greater than 73 inches per year. 

Response: NMFS does not believe that 

elimination of the trophy BFT fishery as 

part of the final action to set 2009 BFT 

quota specifications and effort controls 

is warranted. The subquota for 

recreational large medium and giant 

BFT has not been met in recent years. 

NMFS believes this comment was made 

in the spirit of sacrificing the ability to 

retain an annual trophy fish to gain a 

second fish on a daily basis. As above, 

the preferred alternative for the final 

action is a two–fish daily recreational 

retention limit. 

D. Other Issues 

Comment 1: The majority of 

comments NMFS received during the 

comment period requested that NMFS 

modify the existing regulations to 

improve the chances that the U.S. BFT 

quota can be achieved. Many comments 

stated it is critical to increase 2009 BFT 

landings because 2009 landings 

information will be considered at the 

ICCAT meeting in 2010, when BFT 

quotas are scheduled to be renegotiated. 

Similar to the concerns regarding any 

direct transfer from the United States to 

26114 Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Rules and Regulations 

other ICCAT Contracting Parties, some 

comments asserted that loss of U.S. 

quota would have negative stock 

impacts, due to how and where these 

other Parties may fish. Specific 

suggestions for regulatory changes made 

at the HMS Advisory Panel meeting, at 

the public hearings, and in written 

comments include: 

1. General Category 

• Increase the General category 

maximum daily retention limit 

(currently three BFT measuring greater 

than 73 inches) or eliminate it and 

instead manage the General category 

fishery through daily retention limits set 

by inseason action. A related comment 

was to allow the daily retention limit to 

apply for each day of a multi-day trip. 

• Extend the General category season. 

Some commenters specify that the 

General category season should be 

closed when the January subquota 

(adjusted with underharvest from the 

prior year) is filled, and some indicate 

it should remain open year–round. 

2. Harpoon Category 

• Eliminate the two large medium BFT 

restriction on Harpoon category vessels. 

3. General and Harpoon Category 

• Decrease the commercial minimum 

size for BFT. Most comments requested 

a reduction from the current 73–inch 

minimum size to a 65–inch (165–cm) 

minimum size, although others suggest 

a size between 65 and 73 inches, e.g., 66 

inches (167.6 cm) or 68 inches (172.7 

cm). Some also specify that only one of 

these smaller than 73–inch BFT be 

allowed per day in addition to some 

amount of BFT greater than 73 inches. 

For instance, one fish 65 to less than 73 

inches plus unlimited (or maximum 

allowed under inseason daily retention 

limit) BFT greater than 73 inches per 

day. 

• In combination with the decrease in 

commercial minimum size, reallocate 

quota within the applicable category in 

a ‘‘conservation neutral’’ way so as not 

to impact stock rebuilding. 

4. Longline Category 

• Increase the Longline incidental BFT 

retention trip limits. Those requesting 

this change indicated the action would 

reduce regulatory discard of 

commercial–sized BFT (greater than 73 

inches) and would provide greater 

economic incentive for Longline vessel 

operators to make pelagic longline trips 

for swordfish or other tunas, specifically 

contributing to the revitalization of the 

swordfish fishery. The specific limits 

suggested are: two BFT landed provided 

that at least 3,000 lb (1,360 kg) of non– 

BFT species are caught, retained, and 

offloaded on the same trip; 3 BFT for at 

least 6,000 lb (2,722 kg); 4 BFT for at 

least 9,000 lb (4,082 kg); and 5 BFT for 

at least 12,000 lb (5,443 kg). 

5. Charter/Headboat Category 

• Allow HMS Charter/Headboats to 

fish both commercially and 

recreationally on the same day. 

• Allow harpoon use on HMS Charter/ 

Headboat vessels. 

6. Angling Category 

• Implement a census program in 

which every recreational fish is tagged 

so that NMFS does not have to depend 

on a statistical survey landings estimate. 

7. BFT Quotas 

• If the Purse Seine category quota is 

not obtained by September 15 and effort 

is not current, reallocate that quota to 

the Angling, General, and Harpoon 

categories. 

•Reallocate the quotas to allow a 

separate Charter/Headboat category 

quota. 

In response, some commenters urge 

NMFS not to relax the regulations in 

these manners, particularly reduction of 

the minimum size, as these actions 

could have detrimental impacts on stock 

rebuilding. Some commenters urge 

NMFS to adopt more stringent 

regulations in order to provide more 

conservative protections for the fishery. 

Several environmental groups caution 

against loosening restrictions on the 

pelagic longline fishery. One comment 

in particular requested that NMFS 

reinstate target catch requirements in 

the NED. There was also a suggestion to 

increase the Atlantic Tunas and HMS 

permit fees to increase funds available 

for enforcement of the regulations. 

Response: The suggestions listed 

above are beyond the scope of the 

rulemaking for this action. However, 

NMFS plans to publish an Advanced 

Notice of Proposed Rulemaking (ANPR) 

simultaneous with publication of this 

final rule or shortly thereafter in the 

Federal Register. The ANPR would be 

intended to analyze potential 

approaches to addressing concerns 

voiced by constituents during this 

comment period, consistent with the 

rulemaking process, Magnuson–Stevens 

Act requirements to end overfishing by 

the end of 2010 and rebuild the stock by 

2019, ATCA, and other applicable law. 

VII. Classification 

NMFS publishes these final 

specifications and effort controls under 

the authority of the Magnuson–Stevens 

Act and ATCA. The Assistant 

Administrator for Fisheries (AA) has 

determined that the regulations 

contained in this final rule are necessary 

to implement the recommendations of 

ICCAT and to manage the domestic 

Atlantic HMS fisheries, and are 

consistent with the Magnuson–Stevens 

Act and its National Standards. 

Because this a substantive rule that 

relieves a restriction by increasing the 

General category daily retention limit to 

three large medium or giant BFT per 

vessel and by increasing the Angling 

category daily retention limit to one 

school BFT and one large school/small 

medium BFT per vessel, it is not subject 

to a 30-day delay in effectiveness 

pursuant to 5 U.S.C. 553(d)(1). The 

default General category daily retention 

limit which would become effective 

when the season opens on June 1, 2009, 

without this action, is one large medium 

or giant BFT per vessel per day 

(§ 635.23(a)(2)). The default Angling 

category daily retention limit currently 

in effect is one school, large school, or 

small medium BFT per vessel per day 

(§ 635.23(b)(2)(ii)). Although the 2009 

Angling category season officially began 

January 1, recreational effort historically 

picks up in the month of June. 

Therefore, this action allows General 

category and Angling category permit 

holders to harvest more BFT than they 

could under existing regulations. The 

AA also finds good cause under U.S.C. 

553(d)(3) to waive the 30-day delayed 

effectiveness period for the BFT quota 

specifications in this action. Without 

the waiver for the 30-day delayed 

effectiveness period, the codified U.S. 

BFT quota of 1,165.1 mt and related 

subquotas (allocated per quota 

allocations established in the 

Consolidated HMS FMP) would remain 

in effect. The 2008 ICCAT 

Recommendation concerning the ICCAT 

Rebuilding Program (ICCAT 

Recommendation 08–04) will enter into 

force on June 17, 2009. In order for the 

United States to be in compliance with 

this ICCAT Recommendation, which the 

United States agreed to at the November 

2008 meeting of ICCAT, a total U.S. 

quota of 1,034.9 mt must be established 

by June 17, 2009. 

This final rule been determined to be 

not significant for purposes of Executive 

Order 12866. 

In compliance with Section 604 of the 

Regulatory Flexibility Act, a Final 

Regulatory Flexibility Analysis (FRFA) 

was prepared for this rule. The FRFA 

analyzes the anticipated economic 

impacts of the preferred actions and any 

significant alternatives that could 

minimize economic impacts on small 

entities. Each of the statutory 

requirements of Section 604 of the 

Regulatory Flexibility Act has been 

Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Rules and Regulations 26115 

addressed and a summary of the FRFA 

is below. The full FRFA and analysis of 

economic and ecological impacts, are 

available from NMFS (see ADDRESSES). 

Section 604(a)(1) of the Regulatory 

Flexibility Act requires the Agency to 

state the objective and need for the rule. 

As stated earlier, the objective of this 

rule is to establish BFT quotas and effort 

controls for the General and Angling 

categories for the 2009 fishing year 

consistent with the Consolidated HMS 

FMP. This rule is needed to implement 

ICCAT recommendations as necessary 

and appropriate pursuant to ATCA and 

to achieve domestic management 

objectives under the Magnuson–Stevens 

Act. 

Section 604(a)(2) of the Regulatory 

Flexibility Act requires the Agency to 

summarize significant issues raised by 

the public comment in response to the 

Initial Regulatory Flexibility Analysis 

(IRFA), a summary of the Agency’s 

assessment of such issues, and a 

statement of any changes made as a 

result of the comments. NMFS received 

one comment specifically on the IRFA. 

The commenter wrote that NMFS 

should establish a separate quota 

allocation for the charter sector and 

suggested that NMFS should better 

quantify the positive economic impact 

of the charter sector in the BFT fishery. 

Establishment of a new quota category 

would involve an FMP amendment and 

is therefore outside the scope of this 

rulemaking. 

Section 604(a)(3) of the Regulatory 

Flexibility Act requires the Agency to 

describe and provide an estimate of the 

number of small entities to which the 

rule will apply. The final action could 

directly affect the approximately 43,000 

vessel owners permitted in the HMS 

Angling category, the HMS Charter/ 

Headboat category, or the Atlantic tunas 

commercial permit categories (General, 

Harpoon, Purse Seine, Longline, and 

Trap categories). Of these, 9,871 permit 

holders (the combined number of 

commercial category permit holders, 

including charter/headboat vessels) are 

considered small business entities 

according to the Small Business 

Administration’s standard for defining a 

small entity. 

Section 604(a)(4) of the Regulatory 

Flexibility Act requires the Agency to 

describe the projected reporting, 

recordkeeping, and other compliance 

requirements of the final rule, including 

an estimate of the classes of small 

entities which would be subject to the 

requirements of the report or record. 

None of the alternatives considered for 

this final rule would result in additional 

reporting, recordkeeping, and 

compliance requirements. 

Section 604(a)(5) of the Regulatory 

Flexibility Act requires the Agency to 

describe the steps taken to minimize the 

significant economic impact on small 

entities consistent with the stated 

objectives of applicable statutes. 

Additionally, the Regulatory Flexibility 

Act (5 U.S.C. 603(c)(1) – (4)) lists four 

general categories of ‘‘significant’’ 

alternatives that would assist an agency 

in the development of significant 

alternatives. These categories of 

alternatives are: (1) establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) clarification, consolidation, 

or simplification of compliance and 

reporting requirements under the rule 

for such small entities; (3) use of 

performance rather than design 

standards; and (4) exemptions from 

coverage of the rule for small entities. 

In order to meet the objectives of this 

final rule, consistent with the 

Magnuson–Stevens Act, NMFS cannot 

exempt small entities or change the 

reporting requirements only for small 

entities, because all of the affected 

businesses (commercial vessel permit 

holders) are considered small entities. 

Thus, there are no alternatives 

discussed that fall under the first and 

fourth categories described above. In 

addition, none of the alternatives 

considered would result in additional 

reporting or compliance requirements 

(category two above). NMFS does not 

know of any performance or design 

standards that would satisfy the 

aforementioned objectives of this 

rulemaking while, concurrently, 

complying with the Magnuson–Stevens 

Act. 

As described below, NMFS analyzed 

several alternatives in this final 

rulemaking and provides justification 

for selection of the preferred alternatives 

to achieve the desired objective. 

NMFS has estimated the average 

impact that the alternative to establish 

the 2009 BFT quota for all domestic 

fishing categories would have on 

individual categories and the vessels 

within those categories. As mentioned 

above, the 2008 ICCAT recommendation 

reduced the U.S. BFT quota to 1,034.9 

mt. This quota allocation includes 25 mt 

to account for incidental catch of BFT 

related to directed longline fisheries in 

the NED. This action would distribute 

the adjusted (baseline) quota of 1,009.9 

mt to the domestic fishing categories 

based on the allocation percentages 

established in the Consolidated HMS 

FMP. 

In 2008, the annual gross revenues 

from the commercial BFT fishery were 

approximately $5.0 million. 

Approximately 9,871 vessels are 

permitted to land and sell BFT under 

four commercial BFT quota categories 

(including charter/headboat vessels). 

The commercial categories and their 

2008 gross revenues are General ($4.0 

million), Harpoon ($313,781), Purse 

Seine ($0), and Longline ($722,016). The 

FRFA assumes that each vessel within 

a category will have similar catch and 

gross revenues to show the relative 

impact of the proposed action on 

vessels. 

For the allocation of BFT quota among 

domestic fishing categories, NMFS 

analyzed a no action alternative and 

Alternative A2 (preferred alternative) 

which would implement the 2008 

ICCAT recommendation. NMFS 

considered a third alternative (A3) that 

would have allocated the 2008 ICCAT 

recommendation in a manner other than 

that designated in the Consolidated 

HMS FMP. Alternative A3 would result 

in a de facto quota reallocation among 

categories, and an FMP amendment 

would be necessary for its 

implementation. Per the Consolidated 

HMS FMP, NMFS prepares quota 

specifications annually for the 

upcoming fishing year. Preparation of 

an FMP amendment would not be 

possible in the brief period of time 

between receipt of the ICCAT 

recommendation, which occurred in 

late November 2008, and the start of the 

2009 fishing year on January 1, 2009. 

Therefore, analysis of the impacts of 

Alternative A3 is not available. But, if 

an FMP amendment was feasible, 

positive economic impacts would be 

expected to result on average for vessels 

in permit categories that would receive 

a greater share than established in the 

FMP, and negative economic impacts 

would be expected to result on average 

for vessels in permit categories that 

would receive a lesser share than 

established in the FMP. Impacts per 

vessel would depend on the temporal 

and spatial availability of BFT to 

participants. 

As noted above, Alternative A2 would 

implement the 2008 ICCAT 

recommendation in accordance with the 

Consolidated HMS FMP and consistent 

with ATCA, under which the United 

States is obligated to implement ICCAT– 

approved quota recommendations, as 

necessary and appropriate. The 

preferred alternative would implement 

this quota and have slightly positive 

impacts for fishermen. The no action 

alternative would keep the quota at pre– 

2008 ICCAT recommendation levels 

(approximately 155 mt more) and would 

not be consistent with the purpose and 

need for this action and the 

Consolidated HMS FMP. It would 

26116 Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Rules and Regulations 

maintain economic impacts to the 

United States and to local economies at 

a distribution and scale similar to 2008 

or recent prior years, and would provide 

fishermen additional fishing 

opportunities, subject to the availability 

of BFT to the fishery, in the short term. 

In the long term, however, as stock 

rebuilding is delayed, negative impacts 

would result. 

The preferred alternative also would 

implement the provision of the 2008 

ICCAT recommendation that limits 

school BFT landings to 10 percent of the 

total U.S. quota, calculated on a twoyear average, over 2009 and 2010. This 

is expected to have neutral impacts to 

fishermen who fish for school BFT, 

particularly those who rely exclusively 

on the school size class for BFT harvest, 

as NMFS has successfully managed the 

school BFT fishery since the 2006 

recommendation so as to not exceed the 

school BFT tolerance on an annual 

basis. 

The proposed three fish daily 

retention limit (measuring 73 inches or 

greater) per vessel is the preferred 

alternative for the opening retention 

limit for the General category, which 

would be in effect June 1–August 31, 

2009. It is expected to result in the most 

positive socio–economic impacts by 

providing the best opportunity to 

harvest the quota while avoiding 

oversupplying the market, thus 

maximizing gross revenues. Other 

considered alternatives were the no 

action alternative (one BFT 73 inches or 

greater) per vessel and a retention limit 

of two BFT (73 inches or greater) per 

vessel. Both of these alternatives are 

expected to be too restrictive given the 

large amount of quota available for the 

General category during the 2009 fishing 

year and could result in the negative 

economic impact of lower gross 

revenues. Although early season 

landings seldom occur at a rate that 

could oversupply the market, NMFS 

will monitor landings closely to ensure 

that the increased retention limit does 

not contribute to an oversupply. 

Three alternatives were considered for 

Angling category retention limits for the 

2009 fishing year. Alternative C1, which 

was preferred in the draft EA/RIR/IRFA 

and is the no action alternative (C1) is 

a daily retention limit of one fish 

measuring 27 inches to less than 73 

inches per vessel for all sectors of the 

Angling category for the entire 2009 

fishing year. The other alternative that 

would provide a constant daily 

retention limit is Alternative C2 (one 

fish measuring 27 inches to less than 47 

inches and one fish measuring 47 inches 

to less than 73 inches per vessel ). This 

alternative was not preferred in the draft 

EA/RIR/IRFA as it was then anticipated 

to result in overharvest of the quota 

(specifically the large school/small 

medium BFT subquota), based on the 

results of the 2008 season and the 

apparent trend in increasing fish weight 

in the large school/small medium BFT 

size range. Additional information has 

helped NMFS develop more specific 

analyses showing that the Angling 

category did not have to be as restricted 

as originally assumed. Alternative C3 

(one fish measuring 27 inches to less 

than 47 inches and, for certain periods, 

one fish measuring 47 inches to less 

than 73 inches per vessel) would be 

designed to constrain large school/small 

medium BFT landings to the available 

subquota and would be more restrictive 

with regard to retention of this size class 

than Alternative C2. However, this was 

not the preferred alternative in the draft 

EA/RIR/IRFA as it was not then 

considered to be sufficiently restrictive 

to constrain the recreational landings to 

the adjusted large school/small medium 

BFT subquota and as it may not provide 

consistent and equitable fishing 

opportunities to all users. Although 

NMFS requested specific public 

comments on Alternative C3, none were 

submitted. 

After considering additional fishery 

information, public comment, and other 

management objectives, NMFS has 

selected Alternative C2 as the preferred 

alternative. NMFS has the flexibility to 

allocate some or all of the Reserve quota 

to the Angling category quota at the end 

of the year, if needed and as available, 

to cover potential overharvest of the 

Angling category quota. Such use of the 

Reserve would minimize the likelihood 

that future Angling category quotas 

(specifically the large school/small 

medium BFT subquota) would need to 

be reduced due to 2009 recreational 

fishery overharvest. Based on current 

projections and analyses, NMFS does 

not anticipate an overharvest of the 

school BFT subquota. 

List of Subjects in 50 CFR Part 635 

Fisheries, Fishing, Fishing vessels, 

Foreign relations, Management, 

Treaties. 

Dated: May 26, 2009. 

John Oliver 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

■ For the reasons set out in the 

preamble, 50 CFR part 635 is amended 

as follows: 

PART 635—ATLANTIC HIGHLY 

MIGRATORY SPECIES 

■ 1. The authority citation for part 635 

continues to read as follows: 

Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 

1801 et seq. 

■ 2. In § 635.27, paragraphs (a) 

introductory text, (a)(1)(i), (a)(2), (a)(3), 

(a)(4)(i), (a)(5), (a)(6), (a)(7)(i), (a)(7)(ii), 

and (a)(10)(iii) are revised to read as 

follows: 

§ 635.27 Quotas. 

(a) BFT. Consistent with ICCAT 

recommendations, and with paragraph 

(a)(10)(iv) of this section, NMFS may 

subtract the most recent, complete, and 

available estimate of dead discards from 

the annual U.S. BFT quota, and make 

the remainder available to be retained, 

possessed, or landed by persons and 

vessels subject to U.S. jurisdiction. The 

remaining baseline annual U.S. BFT 

quota will be allocated among the 

General, Angling, Harpoon, Purse Seine, 

Longline, Trap, and Reserve categories. 

BFT may be taken by persons aboard 

vessels issued Atlantic Tunas permits, 

HMS Angling permits, or HMS Charter/ 

Headboat permits. The baseline annual 

U.S. BFT quota is 1,009.9 mt, not 

including an additional annual 25 mt 

allocation provided in paragraph (a)(3) 

of this section. Allocations of the 

baseline annual U.S. BFT quota are: 

General – 47.1 percent (475.7 mt); 

Angling – 19.7 percent (199.0 mt), 

which includes the school BFT held in 

reserve as described under paragraph 

(a)(7)(ii) of this section; Harpoon – 3.9 

percent (39.4 mt); Purse Seine – 18.6 

percent (187.8 mt); Longline – 8.1 

percent (81.8 mt), which does not 

include the additional annual 25 mt 

allocation provided in paragraph (a)(3) 

of this section; and Trap – 0.1 percent 

(1.0 mt). The remaining 2.5 percent 

(25.2 mt) of the baseline annual U.S. 

BFT quota will be held in reserve for 

inseason or annual adjustments based 

on the criteria in paragraph (a)(8) of this 

section. NMFS may apportion a quota 

allocated to any category to specified 

fishing periods or to geographic areas 

and will make annual adjustments to 

quotas, as specified in paragraph (a)(10) 

of this section. BFT quotas are specified 

in whole weight. 

(1) * * * 

(i) Catches from vessels for which 

General category Atlantic Tunas permits 

have been issued and certain catches 

from vessels for which an HMS Charter/ 

Headboat permit has been issued are 

counted against the General category 

quota in accordance with § 635.23(c)(3). 

The amount of large medium and giant 

BFT that may be caught, retained, 

Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Rules and Regulations 26117 

possessed, landed, or sold under the 

General category quota is 47.1 percent 

(475.7 mt) of the baseline annual U.S. 

BFT quota, and is apportioned as 

follows: 

(A) January 1 through January 31 – 5.3 

percent (25.2 mt); 

(B) June 1 through August 31 – 50 

percent (237.8 mt); 

(C) September 1 through September 

30 – 26.5 percent (126.1 mt); 

(D) October 1 through November 30 – 

13 percent (61.8 mt); and 

(E) December 1 through December 31 

– 5.2 percent (24.7 mt). 

* * * * * 

(2) Angling category quota. In 

accordance with the framework 

procedures of the HMS FMP, prior to 

each fishing year or as early as feasible, 

NMFS will establish the Angling 

category daily retention limits. The total 

amount of BFT that may be caught, 

retained, possessed, and landed by 

anglers aboard vessels for which an 

HMS Angling permit or an HMS 

Charter/Headboat permit has been 

issued is 19.7 percent (199.0 mt) of the 

baseline annual U.S. BFT quota. No 

more than 2.3 percent (4.6 mt) of the 

annual Angling category quota may be 

large medium or giant BFT. In addition, 

over each 2–consecutive–year period 

(starting in 2009, inclusive), no more 

than 10 percent of the annual U.S. BFT 

quota, inclusive of the allocation 

specified in paragraph (a)(3) of this 

section, may be school BFT. The 

Angling category quota includes the 

amount of school BFT held in reserve 

under paragraph (a)(7)(ii) of this section. 

The size class subquotas for BFT are 

further subdivided as follows: 

(i) After adjustment for the school 

BFT quota held in reserve (under 

paragraph (a)(7)(ii) of this section), 52.8 

percent (44.5 mt) of the school BFT 

Angling category quota may be caught, 

retained, possessed, or landed south of 

39°18′ N. lat. The remaining school BFT 

Angling category quota (39.8 mt) may be 

caught, retained, possessed or landed 

north of 39°18′ N. lat. 

(ii) An amount equal to 52.8 percent 

(48 mt) of the large school/small 

medium BFT Angling category quota 

may be caught, retained, possessed, or 

landed south of 39°18′ N. lat. The 

remaining large school/small medium 

BFT Angling category quota (42.9 mt) 

may be caught, retained, possessed or 

landed north of 39°18′ N. lat. 

(iii) An amount equal to 66.7 percent 

(3.1 mt) of the large medium and giant 

BFT Angling category quota may be 

caught, retained, possessed, or landed 

south of 39°18′ N. lat. The remaining 

large medium and giant BFT Angling 

category quota (1.5 mt) may be caught, 

retained, possessed or landed north of 

39°18′ N. lat. 

(3) Longline category quota. The total 

amount of large medium and giant BFT 

that may be caught incidentally and 

retained, possessed, or landed by 

vessels that possess Longline category 

Atlantic Tunas permits is 8.1 percent 

(81.8 mt) of the baseline annual U.S. 

BFT quota. No more than 60.0 percent 

(49.1 mt) of the Longline category quota 

may be allocated for landing in the area 

south of 31°00′ N. lat. In addition, 25 mt 

shall be allocated for incidental catch by 

pelagic longline vessels fishing in the 

Northeast Distant gear restricted area as 

specified at § 635.23(f)(3). 

(4) * * * 

(i) The total amount of large medium 

and giant BFT that may be caught, 

retained, possessed, or landed by 

vessels that possess Purse Seine 

category Atlantic Tunas permits is 18.6 

percent (187.8 mt) of the baseline 

annual U.S. BFT quota. The directed 

purse seine fishery for BFT commences 

on July 15 of each year unless NMFS 

takes action to delay the season start 

date. Based on cumulative and projected 

landings in other commercial fishing 

categories, and the potential for gear 

conflicts on the fishing grounds or 

market impacts due to oversupply, 

NMFS may delay the BFT purse seine 

season start date from July 15 to no later 

than August 15 by filing an adjustment 

with the Office of the Federal Register 

prior to July 1. 

* * * * * 

(5) Harpoon category quota. The total 

amount of large medium and giant BFT 

that may be caught, retained, possessed, 

landed, or sold by vessels that possess 

Harpoon category Atlantic Tunas 

permits is 3.9 percent (39.4 mt) of the 

baseline annual U.S. BFT quota. The 

Harpoon category fishery closes on 

November 15 each year. 

(6) Trap category quota. The total 

amount of large medium and giant BFT 

that may be caught, retained, possessed, 

or landed by vessels that possess Trap 

category Atlantic Tunas permits is 0.1 

percent (1.0 mt) of the baseline annual 

U.S. BFT quota. 

(7) * * * 

(i) The total amount of BFT that is 

held in reserve for inseason or annual 

adjustments and fishery–independent 

research using quotas or subquotas is 

2.5 percent (25.2 mt) of the baseline 

annual U.S. BFT quota. Consistent with 

paragraph (a)(8) of this section, NMFS 

may allocate any portion of this reserve 

for inseason or annual adjustments to 

any category quota in the fishery. 

(ii) The total amount of school BFT 

that is held in reserve for inseason or 

annual adjustments and fishery– 

independent research is 18.5 percent 

(19.1 mt) of the total school BFT 

Angling category quota as described 

under paragraph (a)(2) of this section. 

This is in addition to the amounts 

specified in paragraph (a)(7)(i) of this 

section. Consistent with paragraph (a)(8) 

of this section, NMFS may allocate any 

portion of the school BFT Angling 

category quota held in reserve for 

inseason or annual adjustments to the 

Angling category. 

* * * * * 

(10) * * * 

(iii) Regardless of the estimated 

landings in any year, NMFS may adjust 

the annual school BFT quota to ensure 

that the average take of school BFT over 

each 2–consecutive–year period 

beginning in the 2009 fishing year does 

not exceed 10 percent by weight of the 

total annual U.S. BFT quota, inclusive 

of the allocation specified in paragraph 

(a)(3) of this section, for that period. 

* * * * * 

[FR Doc. E9–12654 Filed 5–29–09; 8:45 am] 

BILLING CODE 3510–22–S