[Federal Register Volume 72, Number 249 (Monday, December 31, 2007)]
[Rules and Regulations]
[Pages 74193-74197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-25256]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 070612190-7684-02]
RIN 0648-AV58


Atlantic Highly Migratory Species; 2008 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 set 2008 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 the Atlantic Tunas Convention Act (ATCA), and to achieve domestic

[[Page 74194]]

management objectives under the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act).

DATES: The rule is effective January 30, 2008, except that the Angling 
category retention limit found under the heading Angling Category 
Effort Controls is effective January 30, 2008 through December 31, 
2008, and the General category retention limit found under the heading 
General Category Effort Controls is effective June 1, 2008, through 
August 31, 2008.

ADDRESSES: Supporting documents, including the 2007 Environmental 
Assessment (EA), Regulatory Impact Review (RIR), and Final Regulatory 
Flexibility Analysis (FRFA) and the 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, One Blackburn 
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 the ATCA. The 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 the 
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.

Background

    Background information about the need for the BFT quota 
specifications and effort controls for the 2008 fishing year (January 1 
through December 31, 2008) was provided in the preamble to the proposed 
rule (72 FR 56036, October 2, 2007) and is not repeated here.
    The 2008 annual specifications are necessary to implement the 2006 
ICCAT quota recommendation, as required by the ATCA, and to achieve 
domestic management objectives under the Magnuson-Stevens Act. This 
action is published in accordance with the framework procedures set 
forth in the Consolidated HMS FMP and is supported by the analytical 
documents prepared for the Consolidated HMS FMP and for the 2007 BFT 
specifications and effort controls. Copies of these documents are 
available from NMFS (see ADDRESSES).
    In the final 2007 fishing year BFT specifications (72 FR 33401, 
June 18, 2007), NMFS modified the baseline landings quota to 1,165.12 
mt to implement the 2006 ICCAT recommendation and set the category 
subquotas per the allocations established in the Consolidated HMS FMP. 
The baseline quotas are as follows: General category--548.8 mt; Harpoon 
category--45.4 mt; Purse Seine category--216.7 mt; Angling category--
229.5 mt; Longline category--94.4 mt; and Trap category--1.2 mt. An 
additional 29.1 mt is 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 baseline Angling category quota of 229.5 mt is further 
subdivided as follows: School BFT--119 mt, with 45.8 mt to the northern 
area (north of 39[deg]18' N. latitude), 51.2 mt to the southern area 
(south of 39[deg]18' N. latitude), plus 22 mt held in reserve; large 
school/small medium BFT--105.2 mt, with 49.6 mt to the northern area 
and 55.6 mt to the southern area; and large medium/giant BFT--5.3 mt, 
with 1.8 mt to the northern area and 3.5 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 
baseline Longline category quota of 94.4 mt is subdivided as follows: 
37.8 mt to pelagic longline vessels landing BFT north of 31[deg] N. 
latitude and 56.6 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 this additional quota separately from other landings 
under the Longline north subcategory.
    The baseline landings quota and category subquotas are effective 
until changed, for instance, as a result of a potential new ICCAT BFT 
Total Allowable Catch (TAC) recommendation made at its upcoming 2008 
Annual Meeting. Consistent with the Consolidated HMS FMP, and through 
this action, NMFS is making underharvest adjustments for the 2008 
fishing year.

Changes from the Proposed Rule

    Since 1997, NMFS has implemented General category RFDs to extend 
the General category fishing season. NMFS has received comment from 
fishery participants that RFDs are not necessary, as BFT landings in 
the last several years have been low and not at a pace that warrants 
NMFS control for market purposes. For the 2008 fishing year, NMFS has 
decided not to implement RFDs via this final rule. For more 
information, please see the Comments and Responses section. If NMFS 
determines that action is needed during the fishing year to extend the 
General category fishery, NMFS may publish an inseason action (under 50 
CFR 635.23(a)(4)) to decrease the daily retention limit of large medium 
and giant BFT over a range of zero to a maximum of three per vessel.

2008 Quota Specifications

    NMFS anticipates that the 2007 fishing year (June 1, 2007-December 
31, 2007) underharvest will be substantial, based on current landings 
information and communication with BFT fishermen, and given the 
relatively low BFT harvest rates in recent years. However, the current 
ICCAT recommendation limits the amount of underharvest the United 
States may carry over for 2008 to 595.1 mt.
    Landings of large medium and giant BFT (measuring 73 inches (185.4 
cm) or greater) landed in the commercial BFT fisheries and under the 
Angling category trophy fishery are as follows, through November 26, 
2007: General category--87.9 mt; Harpoon category--12.1 mt; Longline 
category--26.4 mt (18 mt in the North, 2.9 mt in the Northeast Distant 
gear restricted area (NED), and 5.5 mt in the South]; Trap category--0 
mt; and Purse Seine category--28.0 mt. The recreational Angling 
category fishery is still underway and final estimates from the Large 
Pelagic Survey (LPS) are not expected to be available until the end of 
the year. Once LPS estimates are available, NMFS may adjust 2008 
recreational measures (i.e., retention limits) and quotas or make 
necessary adjustments for the following year's fishery (i.e., the 2009 
fishing year) based on the LPS data and analyses, the needs of the 
fishery, and other factors (such as the 2008 ICCAT recommendation, 
research needs, etc.), as appropriate. Currently, however, preliminary 
2007 landings estimates for the fishery indicate that the 2007 fishing 
year underharvest is substantial, and that the full 595.1 mt of 
underharvest (consistent with the ICCAT

[[Page 74195]]

recommended limit) will be available for carryover to the 2008 fishing 
year.
    NMFS establishes the final quota specifications as proposed, i.e., 
carries over 595.1 mt of BFT underharvest from the 2007 fishing year to 
the 2008 fishing year quota, and distributes that underharvest to: (1) 
Allow for potential transfer of a portion (up to 15 percent) of the 
2008 U.S. quota to other ICCAT Contracting Parties and other domestic 
management objectives, if warranted; (2) ensure that the Longline 
category has sufficient quota to operate during the 2008 fishing year 
after the required accounting for BFT dead discards; and (3) provide 
the non-Longline quota categories the remainder of the underharvest 
consistent with the allocation scheme established in the Consolidated 
HMS FMP. As proposed, this final action applies 53.6 mt of BFT 
underharvest to cover the anticipated pelagic longline fishery landings 
during the 2008 fishing year. Additionally, this action places 178.5 mt 
(i.e., 15 percent of 1,190.12 mt) of 2007 fishing year underharvest in 
the Reserve for potential ICCAT transfer purposes and other domestic 
management objectives. This action distributes the remainder of the 
quota carryover (363 mt) to the Angling, General, Harpoon, Purse Seine, 
and Trap categories consistent with their FMP allocations.
    Initial quota specifications for the 2008 fishing year as follows: 
General category--740.0 mt; Harpoon category-- 61.2 mt; Purse Seine 
category--292.2 mt; Angling category --309.5 mt; Longline category--
56.7 mt; and Trap category--1.6 mt. Additionally, 207.6 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 740.0 mt is divided per the time 
period allocations established in the Consolidated FMP, i.e., 39.2 mt 
(5.3 percent) for the period beginning January 1, 2008, and ending 
January 31, 2008, 370.0 mt (50 percent) for the period beginning June 
1, 2008, and ending August 31, 2008, 196.1 mt (26.5 percent) for the 
period beginning September 1, 2008, and ending September 30, 2008, 96.2 
mt (13 percent) for the period beginning October 1, 2008, and ending 
November 30, 2008; and 38.5 mt (5.2 percent) for the period beginning 
December 1, 2008, and ending December 31, 2008.
    The Angling category quota of 309.5 mt is further subdivided as 
follows: School BFT--119 mt, with 45.8 mt to the northern area (north 
of 39[deg]18' N. latitude), 51.2 mt to the southern area (south of 
39[deg]18' N. latitude), plus 22 mt held in reserve; large school/small 
medium BFT--183.4 mt, with 86.6 mt to the northern area and 96.8 mt to 
the southern area; and large medium/giant BFT--7.1 mt, with 2.4 mt to 
the northern area and 4.7 mt to the southern area.
    The Longline category quota of 56.7 mt is subdivided as follows: 
22.7 mt to pelagic longline vessels landing BFT north of 31[deg] N. 
latitude and 34.0 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 will account for 
landings under this additional quota separately from other landings 
under the Longline north subcategory.
    Once complete information, including recreational landings 
estimates, is available for the 2007 fishing year, NMFS may need to 
publish quota adjustments or other inseason management measures, as 
necessary, in 2008 for the 2008 fishing year.

General Category Effort Controls

    Because of the large quota available for the General category, NMFS 
increases the retention limit of BFT for the January and June-August 
subperiods from the default one-fish retention limit. Therefore, 
persons aboard vessels permitted in the General category may retain 
three large medium or giant BFT (measuring 73 inches (185.4 cm) or 
greater) per vessel per day/trip from June 1, 2008, through August 31, 
2008. Anticipating that this action might not be effective by January 
1, 2008, NMFS published an inseason action to adjust the General 
category retention limit to three large medium or giant BFT per vessel 
per day/trip effective October 1, 2007, through January 31, 2008 (72 FR 
61565, October 31, 2007). The BFT retention limit may be adjusted via 
inseason action, if warranted, under Sec.  635.23(a)(4).

Angling Category Effort Controls

    This final rule establishes an Angling category retention limit to 
one school BFT (27 inches (68.6 cm) to less than 47 inches (119.4 cm)), 
and two large school/small medium BFT (i.e., two BFT measuring 47 
inches (119.4 cm) to less than 73 inches (185.4 cm)) per vessel per 
day/trip. This retention limit is effective for persons aboard vessels 
permitted in the Angling category from January 30, 2008 through 
December 31, 2008. This retention limit may be adjusted via inseason 
action, if warranted, under Sec.  635.23(b)(3).

Comments and Responses

    Below, NMFS summarizes and responds to all comments received 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. For example, NMFS received 
comment that the pelagic longline incidental BFT retention limits 
should be raised to reduce regulatory discard of commercial-sized BFT. 
In contrast, NMFS received a request from an environmental organization 
to take action to limit BFT mortality on pelagic longline gear and to 
remove the exemption from target catch requirements that currently 
applies to pelagic longline vessels fishing in the Northeast Distant 
gear restricted area until the 25-mt set-aside for that area is met. 
Another commenter expressed frustration with Purse Seine fishing in 
Cape Cod Bay and alleged unchecked violation of BFT fishing regulations 
in general. NMFS acknowledges receipt of these comments, although the 
issues raised are not addressed in this action as they were not 
considered part of this rulemaking.

A. BFT Quotas

    Comment 1: NMFS received a range of comments on the quota 
specifications. Most of the commenters wrote or spoke about the need 
for greater conservation measures, both for juvenile and spawning-sized 
BFT. One commenter opposed carryover of underharvest in any fishery 
from one year to the next. An environmental organization representative 
requests that NMFS keep landings of school fish low in 2008 to 
contribute to rebuilding the BFT population and to ensure a 
recreational fishery in the last year of the four-year (2007-2010) 
balancing period over which ICCAT recommends limiting school BFT 
landings to 10 percent of the TAC (i.e., an average of 119 mt 
annually). In contrast, one commenter asked if NMFS would adjust the 
school BFT subquota (upward of the proposed 119 mt) if landings 
estimates indicate that less than 119 mt will have been taken in the 
2007 fishing year (i.e., if NMFS could increase the school BFT quota 
for 2008 while maintaining average landings of 119 mt annually over the 
2007-2010 balancing period).
    Response: Carryover of underharvest (limited to no more than 50 
percent of the U.S. TAC) is consistent with both the ICCAT 
recommendation and the BFT quota regulations. The specifications 
included in this rule reflect application of underharvest from

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the 2007 fishing year to the baseline quotas that were established in 
the 2007 final specifications (72 FR 33401, June 18, 2007). The 
distribution of the 595.1-mt underharvest provides for several existing 
and potential management needs, namely: (1) Setting aside sufficient 
quota for a potential transfer to another ICCAT Contracting Party, if 
warranted; (2) providing sufficient quota for pelagic longline 
operations; (3) appropriately accounting for dead discards; and (4) 
distributing the remainder per the Consolidated HMS FMP allocation. 
Reduction of the overall quota, or to category quota and subquota 
allocations, would involve a regulatory change and/or amendment to the 
Consolidated HMS FMP. The final Angling category school BFT subquota is 
119 mt. Final LPS estimates for the 2007 fishing year will not be 
compete until after preparation of this final rule. NMFS does not 
currently have information that would support an increase to the 
Angling category school BFT subquota for the 2008 fishing year. As 
mentioned above, NMFS may need to publish a quota adjustment or other 
inseason action in 2008 once landings information for the 2007 fishing 
year is complete. However, as 2007 is the first year of the current 4-
year balancing period, NMFS has considerable flexibility over the next 
3 years to manage the school BFT fishery (including adjustment of 
retention limits) consistent with the ICCAT recommendation that limits 
tolerance for school BFT landings to 10 percent of the U.S. TAC, 
calculated on a 4-year average (i.e., 2007-2010).
    Comment 2: Some commenters opposed the concept of a U.S. quota 
transfer to another ICCAT-contracting party. An industry representative 
suggested that NMFS fully allocate the quota carryover amount to the 
quota categories rather than holding 15-percent of the TAC (178.5 mt) 
in the Reserve, and suggests that NMFS subsequently consult with 
representatives of applicable quota categories if and when a quota 
transfer request is received. This commenter anticipates that such a 
request would be initiated by industry in consultation with the 
industry of another ICCAT Contracting Party.
    Response: The authority to transfer BFT quota to other ICCAT 
contracting parties originates with a 2006 ICCAT recommendation, which 
allows a contracting party to transfer up to 15 percent of its TAC to 
another Contracting Party. NMFS notes that any transfer requests would 
be initiated by other ICCAT member countries to the U.S. Government. In 
response to a transfer request, the United States (through NMFS) would 
evaluate several factors, including the projected ability of U.S. 
vessels to harvest the U.S. TAC during the fishing year and potential 
impacts to the stock, in a separate action and consider public input on 
that action. In these specifications, NMFS is placing 178.5 mt (15 
percent of the U.S. TAC) of 2007 fishing year underhavest in the 
Reserve so that, if the United States were to approve a transfer, the 
quota would be taken from the Reserve and not from category-specific 
quotas. NMFS maintains that, should a transfer to another ICCAT 
contracting party be considered and approved, it should be taken from 
the Reserve, which NMFS specifically holds for purposes of inseason or 
annual adjustments and fishery research.
    Because of the ICCAT-recommended limit on quota carryover and given 
the recent trend of substantial U.S. TAC underharvest, distribution of 
178.5 mt of carryover to individual quota categories would not result 
in substantially greater future fishing opportunities than holding that 
amount in Reserve. Further, the regulations regarding determination 
criteria and annual adjustment of the BFT quota at Sec. Sec.  
635.27(a)(8) and 635.27(a)(9) allow NMFS to transfer quotas among 
categories based on the 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.). 
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.
    The carryover of BFT underharvest that NMFS proposed, and finalizes 
in this action, is consistent with the Consolidated HMS FMP and with 
the 2006 ICCAT recommendation to limit carryover to 50 percent of an 
ICCAT contracting party's initial TAC. A regulatory amendment would be 
required for NMFS not to carry forward unharvested quota from one year 
to the next.

B. General Category Effort Controls

    Comment 1: As described above, NMFS received comments that the 
setting of RFDs is not necessary, as BFT landings in the General 
category have been low, and not at a pace that warrants NMFS control 
for market purposes.
    Response: NMFS agrees that overall landings in the last few years 
have been lower than they have since the late 1990s, when NMFS began to 
implement RFDs to extend the General category season for as long as 
possible to provide fishing opportunities over an expanded temporal and 
geographic range. Due to low landings rates in recent years and the 
fact that the fishery has not needed to be closed, and based on the 
expectation that landings rates in the 2008 fishing season will be 
similar, NMFS is not implementing RFDs through this final rule. NMFS 
may use its inseason action authority at 50 CFR 635.23(a)(4) to adjust 
the General category retention limit if it determines that action is 
needed during the fishing year to extend the General category fishery.
    Comment 2: One commenter suggested, due to continued underharvest 
of BFT, that a General category daily retention limit of two rather 
than three BFT measuring 73 inches or greater (as proposed) per vessel 
per day/trip, would be appropriate, while still meeting the needs of 
commercial BFT fishermen.
    Response: NMFS acknowledges the recent low catches in the General 
category fishery. NMFS is contributing to research and monitoring 
efforts to determine the reasons for the apparent lack of availability 
of BFT to the U.S. fishery, i.e., whether due to lower stock abundance 
or changes in BFT distribution. In the meantime, NMFS is setting the 
General category daily retention limit at three BFT to allow increased 
opportunities to harvest the General category quota during periods when 
catch rates have historically been low, and to avoid accumulation of 
unused quota.

C. Angling Category Effort Controls

    Comment 1: NMFS received a range of comments on the Angling 
category effort controls. Some commenters supported the Angling 
category retention limit as proposed, and some expressed that anglers 
should be limited to one fish per day. Related to the comment on the 
Angling category school BFT subquota in Section A, one commenter asked 
if the daily retention limit for school BFT could be increased without 
risking the 4-year average of 119 mt of landings being exceeded.
    Response: NMFS currently does not have complete landings estimates 
for the 2007 fishing year and therefore does not have sufficient 
information to support a change to the 2008 fishing year Angling 
category retention limit.

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NMFS may determine, once 2008 estimates are complete, that the 
retention limit should be adjusted in order to meet the limit on school 
BFT over the 4-year balancing period. NMFS has the authority either to 
make inseason adjustments to the Angling category quota during the 2008 
fishing year, or, depending on the results of the LPS data and analyses 
and the needs of the fishery, may make necessary adjustments (such as 
retention limits, quotas, and subquotas) in the 2009 fishing year 
specifications and effort controls.

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.
    This final rule been determined to be not significant for purposes 
of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.

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

    Dated: December 20, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E7-25256 Filed 12-28-07; 8:45 am]
BILLING CODE 3510-22-S