[Federal Register Volume 74, Number 31 (Wednesday, February 18, 2009)]
[Proposed Rules]
[Pages 7577-7583]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-3412]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 080728943-9153-01]
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: Proposed rule; request for comments; notice of public hearings.

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SUMMARY: NMFS proposes 2009 fishing year specifications for the 
Atlantic bluefin tuna (BFT) fishery to set BFT quotas for each of the 
established domestic fishing categories and to set effort controls 
(daily retention limits) for the General and Angling categories. This 
action is necessary to implement recommendations of the International 
Commission for the Conservation of Atlantic Tunas (ICCAT), as required 
by the Atlantic Tunas Convention Act (ATCA), and to achieve domestic 
management objectives under the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act). NMFS solicits written 
comments and will hold public hearings to receive oral comments on 
these proposed actions.

DATES: Written comments must be received on or before March 20, 2009.
    The public hearing dates are:
    1. March 4, 2009, 3 p.m. to 5 p.m., Gloucester, MA.
    2. March 17, 2009, 4 p.m. to 6 p.m., Silver Spring, MD.

ADDRESSES: You may submit comments, identified by ``0648-AX12'', by any 
one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov
     Fax: 978-281-9340, Attn: Sarah McLaughlin
     Mail: Sarah McLaughlin, Highly Migratory Species 
Management Division, Office of Sustainable Fisheries (F/SF1), NMFS, 55 
Great Republic Dr., Gloucester, MA 01930
    Instructions: All comments received are a part of the public record 
and will generally be posted to Portal http://www.regulations.gov 
without change. All Personal Identifying Information (for example, 
name, address, etc.) voluntarily submitted by the commenter may be 
publicly accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter ``n/a'' in the required 
fields if you wih to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    The hearing locations are:
    1. Gloucester - - NMFS, 55 Great Republic Drive, Gloucester, MA 
01930.
    2. Silver Spring - - NOAA Science Center, 1301 East-West Highway, 
Silver Spring, MD 20910.
    Supporting documents including the 2009 draft Environmental 
Assessment, Initial Regulatory Flexibility Analysis, and Regulatory 
Impact Review are available by sending your request to Sarah McLaughlin 
at the mailing address specified above.

FOR FURTHER INFORMATION CONTACT: Sarah McLaughlin, 978-281-9260.

SUPPLEMENTARY INFORMATION: Atlantic tunas are managed under the dual 
authority of the Magnuson-Stevens Act and ATCA. ATCA authorizes the 
Secretary of Commerce (Secretary) to promulgate regulations, as may be 
necessary and appropriate, to implement ICCAT recommendations. The 
authority to issue regulations under the Magnuson-Stevens Act and ATCA 
has been delegated from the Secretary to the Assistant Administrator 
for Fisheries, NOAA (AA).

Background

    On October 2, 2006, NMFS published in the Federal Register (71 FR 
58058) final regulations, effective November 1, 2006, implementing the 
Consolidated Atlantic Highly Migratory Species Fishery Management Plan 
(Consolidated HMS FMP), which consolidated management of all Atlantic 
HMS (i.e., sharks, swordfish, tunas, and billfish) into one 
comprehensive FMP. The implementing regulations for Atlantic HMS are at 
50 CFR part 635.

[[Page 7578]]

    The 2009 annual specifications are necessary to implement the 2008 
ICCAT quota recommendation (ICCAT Recommendation 08-04), as required by 
ATCA, and to achieve domestic management objectives under the Magnuson-
Stevens Act. The proposed rule would establish quota specifications 
consistent with the ICCAT Western Atlantic BFT rebuilding program by 
adjusting the 2008 ICCAT-recommended U.S. quota as necessary for the 
2009 fishing year (January-December 2009), and establish General 
category and Angling category effort controls (daily retention limits) 
for the 2009 fishing season.
    Overall U.S. landings figures for the 2008 fishing year are still 
preliminary and may be updated before these 2009 fishing year 
specifications are finalized. The specifications and effort controls 
may subsequently be adjusted during the course of the fishing year, 
consistent with the provisions of the Consolidated HMS FMP, and, as 
appropriate, would be published in the Federal Register.
    NMFS has prepared a draft Environmental Assessment (EA), Regulatory 
Impact Review (RIR), and an Initial Regulatory Flexibility Analysis 
(IRFA) which present and analyze anticipated environmental, social, and 
economic impacts of several alternatives for each of the major issues 
contained in this proposed rule. The complete list of alternatives and 
their analysis is provided in the draft EA/RIR/IRFA, and is not 
repeated here in its entirety. A copy of the draft EA/RIR/IRFA prepared 
for this proposed rule is available from NMFS (see ADDRESSES).

2008 ICCAT Recommendation, BFT Underharvests, and Transfers to Other 
ICCAT Contracting Parties

    At its 2008 meeting, ICCAT recommended a reduction in the western 
Atlantic BFT Total Allowable Catch (TAC), from 2,100 mt to 1,900 mt for 
2009 and 1,800 mt for 2010 (including dead discards). These TACs are 
intended to allow for rebuilding of BFT in the western Atlantic through 
2018, i.e., rebuild the stock by 2019, and to end overfishing by 2010. 
From these initial TACs, the following allocations are made: 4 mt for 
the United Kingdom (in respect of Bermuda), 4 mt for France (in respect 
of St. Pierre and Miquelon), 95 mt for Mexico (to allow incidental 
catch in the longline fishery in the Gulf of Mexico), and, for bycatch 
related to directed longline fisheries in the Northeast Distant gear 
restricted area (NED), 15 mt for Canada and 25 mt for the United 
States. The U.S. share of the adjusted TAC following the adjustments 
described above is 57.48 percent, or 1,009.9 mt for 2009; this is the 
baseline annual U.S. BFT quota. Accounting for the 25-mt NED 
allocation, the total U.S. quota is 1,034.9 mt for 2009. The previous 
(2006) ICCAT recommendation for a western Atlantic BFT TAC of 2,100 mt 
(ICCAT Recommendation 06-06) included a total U.S. quota of 1,190.12 mt 
(1,165.12 mt and 25 mt for the NED), which was effective from 2007 
through the end of the 2008 fishing year, i.e., December 31, 2008.
    The 2008 ICCAT recommendation also includes provisions to: (1) 
limit carryover of underharvest to no more than 50 percent of a 
contracting party's initial quota; (2) limit mortality of BFT measuring 
less than 115 cm (45 inches) to an average of 10 percent of the initial 
quota over the 2009-2010 fishing periods (a change from previous 
recommendations that provided a 4-year period to balance the 10-percent 
tolerance); and (3) allow a contracting party with a TAC allocation 
(i.e., an ICCAT BFT quota) to make a one-time transfer within a fishing 
year of up to 15 percent of its TAC allocation to other contracting 
parties with TAC allocations, consistent with domestic obligations and 
conservation considerations. NMFS manages the second provision by 
limiting quota available for the retention of school BFT (measuring 27 
inches (68.6 cm) to less than 47 inches (119.4 cm)) to no more than 10 
percent of the total U.S. quota and may adjust a subsequent year's 
school BFT subquota as needed to be consistent with the ICCAT 
recommendation. Regarding the third provision, the ICCAT recommendation 
stipulates that the quota transfer may not be used to cover 
overharvests, and that a contracting party that receives a one-time 
quota transfer may not retransfer that quota. For the United States, 
the 15-percent limit on quota transfer equals 155.2 mt. Consistent with 
50 CFR 635.27(a)(8), NMFS would consider several factors in deciding 
whether or not the United States would enter into an arrangement with 
another ICCAT contracting party, including, but not limited to, the 
amount of quota to be transferred, the projected ability of U.S. 
vessels to harvest the total U.S. BFT quota before the end of the 
fishing year, the potential benefits of the transfer to U.S. fishing 
participants, potential ecological impacts, and the contracting party's 
ICCAT compliance status. Should NMFS consider a transfer of U.S. quota 
to another ICCAT contracting party, NMFS would publish a separate 
action in the Federal Register, which would provide detail of the 
transaction considered, including information regarding the factors 
above.
    Initial landings estimates for the 2008 fishing year (as of January 
13, 2009) per category are as follows: General category -- 230 mt; 
Harpoon category -- 22 mt; Longline category -- 82 mt; Angling category 
-- 436 mt; Trap category -- 2 mt; and Purse Seine category -- 0 mt. 
These preliminary landings estimates, totaling 772 mt, indicate that 
the total 2008 underharvest is 705. However, the ICCAT recommendation 
limits the amount the United States may carry over for 2009 to 50 
percent of the 2009 Total U.S. BFT quota, which equals 517.5 mt.

Domestic Allocations and Quotas

    The 1999 Fishery Management Plan for Atlantic Tunas, Swordfish, and 
Sharks (1999 FMP) and its implementing regulations established baseline 
percentage quota shares for the domestic fishing categories. These 
percentage shares were based on allocation procedures that NMFS 
developed over several years. The baseline percentage quota shares 
established in the 1999 FMP and continued in the Consolidated HMS FMP, 
i.e., effective since June 1, 1999, are as follows: General category -- 
47.1 percent; Harpoon category -- 3.9 percent; Purse Seine category -- 
18.6 percent; Angling category -- 19.7 percent; Longline category -- 
8.1 percent; Trap category -- 0.1 percent; and Reserve category -- 2.5 
percent. The proposed 2009 fishing year specifications would allocate 
the 2008 ICCAT-recommended quota for the 2009 fishing year among these 
established domestic fishing categories and would allocate 25 mt for 
bycatch related to directed longline fisheries in the NED.
    As described further below, these specifications also would apply 
517.5 mt of the underharvest of BFT quota from the 2008 fishing year to 
the 2009 fishing year, consistent with the ICCAT-recommended 50-percent 
cap on quota carryover, and distribute that underharvest to: (1) Ensure 
that the Longline category has sufficient quota to operate during the 
2009 fishing year while also accounting for BFT discards; (2) set 15 
percent of the 2009 U.S. quota in reserve for potential transfer to 
other ICCAT Contracting Parties, if warranted; and (3) provide the non-
Longline quota categories a share of the remainder of the underharvest 
consistent with the Consolidated HMS FMP BFT quota allocation scheme.
    The United States must report BFT dead discard estimates to ICCAT 
annually and accounts for this mortality

[[Page 7579]]

as part of the specification calculation process. To be consistent with 
U.S. reports to the ICCAT Standing Committee on Research and Statistics 
for stock assessment purposes, NMFS reports dead discards as the 
estimate generated via extrapolation of pelagic longline vessel logbook 
tallies by pooled observer data, as warranted. Since dead discard 
estimates for 2008 are not yet available, the NMFS estimate of 90 mt 
for 2007 is used as a proxy. Per the ICCAT recommendation, which 
specifies a U.S. quota that is inclusive of dead discards, and 
consistent with the BFT quota regulations at Sec.  635.27(a), NMFS 
would subtract the 90 mt of estimated dead discards from the amount of 
quota available for the Longline category for the 2009 fishing year. 
The best available information indicates that pelagic longline landings 
and dead discards for 2007 totaled 164.3 mt. The baseline longline 
category quota is 81.8 mt. Therefore, NMFS proposes to use 82.5 mt of 
BFT underharvest to cover the anticipated pelagic longline fishery 
landings during the 2009 fishing year. Making available additional 
landings quota in this manner likely will allow the fishery to operate 
for the entire fishing year and avoid discards that could result if the 
BFT Longline category fishery were closed due to the quota being filled 
while longline vessels are still fishing for other species.
    Additionally, NMFS proposes to place 155.2 mt (i.e., 15 percent of 
1,034.9 mt) of 2008 underharvest in the Reserve category for transfer 
to other ICCAT contracting parties, if warranted, and for other 
domestic management objectives. NMFS proposes to distribute the 
remainder of the quota carryover (363 mt) to the Angling, General, 
Harpoon, Purse Seine, and Trap categories consistent with the FMP 
allocations.

2009 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 proposes quotas 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. A total of 
180.4 mt (155.2 plus the baseline quota of 25.2 mt) would be 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. Adjustments to these 
2009 quotas and subquotas will be made, if necessary based on revised 
2008 landings information, in the final rule.
    The proposed General category quota of 623.1 mt would be divided 
per the time period allocations established in the Consolidated FMP, 
i.e., 33.0 mt (5.3 percent) for the period beginning January 1, 2009, 
and ending January 31, 2009; 311.5 mt (50 percent) would be available 
in the period beginning June 1, 2009, and ending August 31, 2009; 165.1 
mt (26.5 percent) would be available in the period beginning September 
1, 2009, and ending September 30, 2009; 81.0 mt (13 percent) would be 
available in the period beginning October 1, 2009, and ending November 
30, 2009; and 32.4 mt (5.2 percent) would be available in the period 
beginning December 1, 2009, and ending December 31, 2009.
    The Angling category quota of 260.6 mt would be further 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 mt to the northern area and 4 mt to the southern area.
    The Longline category would 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 proposed Longline category 
quota of 74.3 mt would be subdivided as follows: 29.7 mt to pelagic 
longline vessels landing BFT north of 31[deg] N. latitude and 44.6 mt 
to pelagic longline vessels landing BFT south of 31[deg] N. latitude. 
NMFS would account for landings under the 25-mt NED allocation 
separately from other Longline category landings.

General Category Effort Controls

    On December 18, 2008, NMFS set the January 2009 General category 
BFT daily retention limit at two BFT per vessel, via an inseason action 
(73 FR 76972). This retention limit was selected following review of 
dealer reports, daily landing trends, the winter fishery performance 
over the last several years, the availability of BFT on the fishing 
grounds, and the relatively small January General category baseline 
subquota. The General category fishery closed on January 31, 2009, and 
will reopen June 1, 2009.
    NMFS proposes to increase the General category daily retention 
limit to three BFT (73 inches (185.4 cm) or greater per vessel) for the 
June-August subperiod. This action is intended to allow increased 
opportunities to harvest the General category quota during the period 
when catch rates have been slow and to avoid accumulation of unused 
quota. This retention limit would be effective from June 1, 2009, 
through August 31, 2009, unless later adjusted with an inseason action, 
if necessary. NMFS may consider further daily retention limit 
adjustments after August 31, 2009, depending on several factors, 
including but not limited to catch rates and availability of quota.
    Regardless of the duration of a fishing trip, the daily retention 
limit applies. For example, whether a vessel that is fishing under the 
General category limit takes a two-day trip or makes two trips in one 
day, the limit of three fish overall applies and may not be exceeded.

Angling Category Effort Controls

    NMFS proposes to maintain the default Angling category daily 
retention limit of one school, large school, or small medium BFT (i.e., 
one fish measuring 27 inches to less than 73 inches (185.4 cm)) per 
vessel.
    Prior to 2007, recreational BFT fishing activity was largely 
focused on fishing opportunities for school BFT (27 to less than 47 
inches). However, recreational BFT fishing data and dockside 
observations from 2007 forward indicate a recent shift in catch to the 
large school/small medium size class (47 to less than 73 inches), 
particularly to large school BFT [(47 to less than 59 inches (149.9 
cm)]. In the last two fishing years, availability and landings of the 
recreational size classes (27 to less than 73 inches) has been high, 
and the 2007 and 2008 Angling category quotas are estimated to have 
been exceeded. It has become apparent to NMFS that the availability of 
recreational size fish is limited to a narrow size range or cohort that 
NMFS estimates to have been approximately age 4 in 2007 and age 5 in 
2008. The majority of these fish in 2008 were in the large school size 
range. However, in 2009, NMFS anticipates these BFT will be 
approximately age 6 and will enter the small medium size class (59 to 
less than 73 inches). NMFS manages the recreational BFT quota by size 
class, so as this cohort of fish ages and grows in weight but remains 
under 73 inches, NMFS expects the large school/small medium subquota to 
be attained with fewer fish landed.
    NMFS considered the results of the 2007 and 2008 fishing seasons 
under the various limits when selecting the proposed 2009 Angling 
category daily retention limit. In addition, NMFS considered the 
observed trend in the

[[Page 7580]]

recreational fishery toward heavier fish, particularly in the large 
school and small medium size classes. Under a daily retention limit of 
one school BFT and two large school/small medium BFT in 2007, total 
Angling category landings were nearly double the adjusted Angling 
category quota, largely due to the landings of large school/small 
medium BFT. For the 2008 fishing year, NMFS lowered the daily retention 
limit to one school BFT and one large school/small medium BFT. Despite 
these lower retention limits, preliminary 2008 estimates indicate that 
the total Angling category quota was again exceeded (by approximately 
30 percent), and although the school BFT landings fell well below the 
subquota in 2008, the landings of large school/small medium BFT were 
approximately two times the associated quota.
    NMFS considered three daily retention limit alternatives that would 
be as restrictive, or more restrictive, than the 2008 daily retention 
limits in order to ensure that the Angling category quota is not again 
exceeded. Because of the reduced ICCAT-recommended BFT TAC and the 
resulting reduced U.S. quota, all domestic quotas are decreased from 
the 2008 level. In order to constrain landings to the proposed adjusted 
Angling category quota (260.6 mt), NMFS must implement conservative 
daily retention limits in 2009. This is particularly important given 
the new ICCAT-recommended 2-year balancing period for limiting the 
harvest of school BFT and given that complete information regarding 
coastwide recreational BFT landings is not available until the end of 
the calendar year. NMFS manages BFT subquotas so that they are not 
exceeded both to adhere to the current FMP quota allocations and to 
ensure that landings are as consistent as possible with the pattern of 
fishing mortality (e.g., fish caught at each age) that was assumed in 
the projections of stock rebuilding. Given that the proposed Angling 
category daily retention limit will expire on December 31, 2009, NMFS 
will consider the results of the 2009 fishing year, i.e., available 
landings information and the daily retention limits implemented for the 
2009 recreational fishery, when selecting the proposed 2010 Angling 
category daily retention limits or preparing future recreational 
inseason actions.
    The proposed rule would provide the same daily retention limit for 
both private and charter/headboat vessels. Given the limited amount of 
Angling category quota available and the likely availability of larger 
fish to recreational anglers, assigning higher daily retention limits 
to charter/headboats would risk overharvest of the Angling category 
quota and subquotas.
    Regardless of the duration of a fishing trip, the daily retention 
limit applies. For example, whether a vessel that is fishing under the 
Angling category limit takes a two-day trip or makes two trips in one 
day, the limit of one fish overall applies and may not be exceeded.
    NMFS specifically requests public comment on one of the 
alternatives to the proposed action, which would establish a daily 
retention limit, for both the charter/headboat and the private sectors 
of the fishery, of one school BFT (27 to less than 47 inches) per 
vessel for the entire 2009 fishing year and, additionally, one large 
school/small medium BFT (47 to less than 73 inches) per vessel for 
specific date ranges. For example, NMFS could manage the Angling 
category using the North/South line (39[deg]18' N. latitude, currently 
used in dividing the Angling category quota) so that the fishery is 
open in the southern area for the early summer and for the northern 
area in the late summer/fall. This approach was used in managing the 
school BFT fisheries in 2006. This alternative is intended to allow 
anglers the opportunity to retain a large school/small medium BFT 
during part or parts of the 2009 fishing season while reducing the risk 
of overharvest of the large school/small medium BFT adjusted subquota. 
NMFS seeks specific suggestions regarding appropriate periods during 
the 2009 fishing season for retention of the additional one large 
school/small medium BFT.

Classification

    Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the 2006 Consolidated HMS FMP, other provisions of the 
Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act. The IRFA describes the economic impact this proposed 
rule, if adopted, would have on small entities. A description of the 
action, why it is being considered, and the legal basis for this action 
are contained in the preamble to this proposed rule. A summary of the 
analysis follows. A copy of this analysis is available from NMFS (see 
ADDRESSES).
    NMFS has prepared an IRFA to analyze the impacts on small entities 
of the alternatives for establishing 2009 fishing year BFT quotas for 
all domestic fishing categories and General and Angling category effort 
controls. The IRFA assesses the impacts of the various alternatives on 
the vessels that participate in the BFT fisheries, all of which are 
considered ``small entities.'' In order to do this, NMFS has estimated 
the average impact that the alternatives 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 IRFA 
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.
    Data on net revenues of individual fishermen are lacking, so the 
economic impact of the alternatives is averaged across each category. 
NMFS considers this a reasonable approach for BFT fisheries. More 
specifically, available landings data (weight and ex-vessel value of 
the fish in price/pound) allow NMFS to calculate the gross revenue 
earned by a fishery participant on a successful trip. The available 
data do not, however, allow NMFS to calculate the effort and cost 
associated with each successful trip (e.g., the cost of gas, bait, ice, 
etc.) so net revenue for each participant cannot be calculated. NMFS 
cannot determine whether net revenue varies among individual fishery 
participants within each category, and therefore whether the economic 
impact of a regulation would have a varying impact among individual 
participants. As a result, NMFS analyzes the average impact of the 
proposed alternatives among all participants in each category.

[[Page 7581]]

    For the allocation of BFT quota among domestic fishing categories, 
NMFS considered three alternatives: A no action alternative 
(Alternative 1); Alternative A2 (the preferred alternative), which 
would implement the U.S. quota under the 2008 ICCAT recommendation and 
consistent with the Consolidated HMS FMP; and Alternative A3, which 
would implement the U.S. quota under the 2008 ICCAT recommendation in a 
manner other than that designated in the Consolidated HMS FMP and which 
could address issues regarding the changing nature of the BFT fisheries 
since the Consolidated HMS FMP was written (e.g., allocate additional 
quota to certain categories and/or certain geographic regions). 
Alternative A3 would result in a reallocation of quota 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 
practicable. If an FMP amendment were feasible prior to the 2009 
fishing year, positive economic impacts would be expected to result on 
average for vessels in permit categories that would receive a greater 
share than currently established in the Consolidated HMS FMP, and 
negative economic impacts would be expected to result on average for 
vessels in permit categories that would receive a lesser share than 
currently established in the Consolidated HMS FMP. Impacts per vessel 
would depend on the temporal and spatial availability of BFT to fishery 
participants.
    The no action alternative (A1) 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 because it would ignore the recommendation of 
ICCAT, which NMFS must implement pursuant to ATCA. It would 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.
    As noted above, the preferred alternative (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. 
Alternative A2 would have slightly positive socio-economic impacts for 
fishermen. The preferred alternative also would implement the provision 
of the 2008 ICCAT recommendation that limits tolerance for school BFT 
landings to 10 percent of the total U.S. BFT quota, calculated on a 
two-year average, over 2009 and 2010. This is expected to have neutral 
impacts on 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.
    A daily retention limit of three BFT (measuring 73 inches or 
greater per vessel) is the preferred alternative (Alternative B3) for 
the opening retention limit for the General category, which would be in 
effect from June 1 through August 31, 2009. This alternative 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 (Alternative B1, 
the current default daily retention limit of one BFT measuring 73 
inches or greater per vessel) and Alternative B2, a daily retention 
limit of two BFT (73 inches or greater per vessel). Both of these 
alternatives would not provide adequate fishing opportunities given the 
large amount of adjusted 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 daily retention limit 
does not contribute to an oversupply.
    Three alternatives were considered for Angling category daily 
retention limits for the 2009 fishing year. The preferred/no action 
alternative (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 
is not the preferred alternative as it could result in overharvest of 
the quota, 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. 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 is not the preferred alternative as it 
may not be effective in constraining the recreational landings to the 
adjusted large school/small medium BFT subquota and may not provide 
consistent and equitable fishing opportunities to all users. The 
proposed action (Alternative C1) was selected to balance the intent of 
filling the Angling category quota without overharvesting and providing 
economic benefits to all regional sectors of the fishery. NMFS seeks 
specific suggestions regarding Alternative C3, i.e., the appropriate 
periods during the 2009 fishing season for retention of the additional 
one large school/small medium BFT.
    There are no new reporting or recordkeeping requirements contained 
in any of the alternatives considered for this action. This proposed 
rule has also been determined not to duplicate, overlap, or conflict 
with any other Federal rules.

Public Hearings

    The hearing locations are physically accessible to people with 
disabilities. Requests for sign language interpretation or other 
auxiliary aids should be directed to Sarah McLaughlin at (978) 281-
9279, at least 7 days prior to the meeting.

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

List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, Management, 
Treaties.

    Dated: February 12, 2009.
James W. Balsiger
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 635 is 
proposed to be amended as follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

    1. The authority citation for part 635 continues to read as 
follows:


[[Page 7582]]


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

[[Page 7583]]

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. E9-3412 Filed 2-17-09; 8:45 am]
BILLING CODE 3510-22-S