[Federal Register Volume 74, Number 103 (Monday, June 1, 2009)]
[Rules and Regulations]
[Pages 26110-26117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12654]


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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.

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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

[[Page 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 
Sec.  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[deg]18' N. latitude), 44.5 mt to the southern area (south of 
39[deg]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[deg] 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[deg] N.

[[Page 26112]]

latitude and 44.6 mt to pelagic longline vessels landing BFT south of 
31[deg] 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 Sec.  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 Sec.  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 Sec.  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

[[Page 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

[[Page 26114]]

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
    <bullet> 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.
    <bullet> 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
    <bullet> Eliminate the two large medium BFT restriction on Harpoon 
category vessels.
3. General and Harpoon Category
    <bullet> 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.
    <bullet> 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
    <bullet> 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
    <bullet> Allow HMS Charter/Headboats to fish both commercially and 
recreationally on the same day.
    <bullet> Allow harpoon use on HMS Charter/Headboat vessels.
6. Angling Category
    <bullet> 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
    <bullet> 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.
    <bullet> 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 (Sec.  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 (Sec.  
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

[[Page 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

[[Page 26116]]

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 two-year 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.

0
For the reasons set out in the preamble, 50 CFR part 635 is amended as 
follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

0
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.

0
2. In Sec.  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:


Sec.  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 Sec.  635.23(c)(3). The 
amount of large medium and giant BFT that may be caught, retained,

[[Page 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[deg]18' N. lat. The remaining school 
BFT Angling category quota (39.8 mt) may be caught, retained, possessed 
or landed north of 39[deg]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[deg]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[deg]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[deg]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[deg]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[deg]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 Sec.  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