[Federal Register Volume 74, Number 212 (Wednesday, November 4, 2009)]
[Proposed Rules]
[Pages 57128-57133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26575]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 090508897-91141-02]
RIN 0648-AX85


Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Season 
and Retention Limit Adjustments

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 to adjust the Atlantic bluefin tuna (BFT) 
fishery regulations to increase the General category maximum daily 
retention limit, allow the General category season to remain open until 
the January subquota is reached, and increase the Harpoon category 
daily incidental retention limit. The intent of this proposed rule is 
to enable more thorough utilization of the available U.S. BFT quota, 
while ending BFT overfishing, rebuilding the BFT stock by 2019, and 
minimizing bycatch and bycatch mortality to the extent practicable. 
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 December 21, 
2009.
    The public hearing dates are:
    1. December 14, 2009, 3 p.m. to 5 p.m., Silver Spring, MD.
    2. December 15, 2009, 3 p.m. to 5 p.m., Gloucester, MA.

ADDRESSES:  You may submit comments, identified by ``0648-AX85'', 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 Drive, 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 wish 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. Silver Spring - NMFS Science Center, 1301 East West Highway, 
Silver Spring, MD 20910.
    2. Gloucester - NMFS, 55 Great Republic Drive, Gloucester, MA 
01930.
    Supporting documents including the draft Environmental Assessment 
(EA), Regulatory Impact Review (RIR), and Initial Regulatory 
Flexibility Analysis (IRFA) for this action 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 Fishery Conservation and Management 
Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act 
(ATCA). ATCA authorizes the Secretary of Commerce (Secretary) to 
promulgate regulations, as may be necessary and appropriate, to 
implement recommendations of the International Commission for the 
Conservation of Atlantic Tunas (ICCAT). 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).

I. 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.
    In recent years, U.S. BFT landings have fallen below their 
respective ICCAT-recommended quotas. Factors that may have played a 
role in the underharvest of the domestic BFT fishery since 2004 include 
reduced availability of BFT for harvest, possibly due to recent changes 
in BFT regional availability and/or a reduced BFT population level, and 
reduced effort due to operational expenses (such as fuel costs). While 
the recreational Angling category and the commercial Longline category 
have been able to fill their subquotas in recent years, the commercial 
handgear categories (General and Harpoon) have not. In 2008, 
approximately 48 percent of the baseline and 31 percent of the adjusted 
General category quota was landed, and approximately 56 percent of the 
baseline and 36 percent of the adjusted Harpoon category quota was 
landed.
    At its 2008 meeting, ICCAT recommended a reduction in the western 
Atlantic BFT Total Allowable Catch (TAC), set to allow for rebuilding 
of the stock through 2018, from 2,100 mt to 1,900 mt for 2009 and 1,800 
mt for 2010. The baseline U.S. quotas for 2009 and 2010, respectively, 
are 1,009.9 and 952.4 mt, not including the annual allocation of 25 mt 
to account for incidental catch of BFT by pelagic longline vessels 
fishing in the Northeast Distant Area. Under the Consolidated HMS FMP, 
the General and Harpoon categories are allocated 47.1 and 3.9 percent, 
respectively, of the annual baseline BFT quota. For 2009, the General 
and Harpoon categories received base quotas of 475.7 mt and 39.4 mt, 
respectively, and adjusted quotas of 623.1 mt and 51.6 mt, respectively 
(74 FR 26110, June 1, 2009).
    Over the last year, NMFS has received comments suggesting changes 
that could increase domestic BFT landings within existing quotas and 
subquotas. NMFS received these suggestions at the HMS Advisory Panel 
meetings in 2008 and 2009, during the 2009 BFT quota specifications 
public hearings, and in recent constituent and congressional 
correspondence. In response to these suggestions and related ones 
regarding the Atlantic swordfish fishery, NMFS published an Advance 
Notice of Proposed Rulemaking (ANPR) (74 FR 26174, June 1, 2009), 
requesting specific comment on potential regulatory changes that would 
potentially increase fishing opportunities in the BFT and

[[Page 57129]]

swordfish fisheries. NMFS specifically requested comment on the 
following potential changes to the BFT regulations: increasing the 
General category maximum daily retention limit (currently three BFT 
greater than 73 inches (185 cm)) or eliminating it; extending the 
General category season (currently closed February through May); 
decreasing the commercial minimum size for the General and Harpoon 
categories and reallocating quota within those categories to allow 
access to fish under 73 inches; eliminating a retention limit 
restriction for the Harpoon category; allowing HMS Charter/Headboats to 
fish both commercially and recreationally on the same day; and allowing 
removal of Atlantic tunas tails at sea.
    Comment received on the ANPR ranged from complete support by some 
industry participants (who generally feel that the regulations were 
needed when established to limit landings to the quota but should be 
relaxed now that commercial landings are relatively low compared to 
available quota) to complete opposition by some recreational fishermen, 
environmental organizations, and other individuals (who generally are 
concerned that relaxation of the regulations would compromise NMFS' BFT 
rebuilding and bycatch reduction efforts). The latter were particularly 
concerned about the potential impacts of a reduction in the BFT 
commercial minimum size, and several commenters suggested more 
conservative protections for the BFT fishery, such as an increase in 
commercial minimum size to reflect recent research on the age of BFT 
maturity and the prohibition of pelagic longlining for other target 
species during BFT spawning season in known spawning areas.
    Following consideration of the wide range of comments received on 
the ANPR, NMFS proposes this action to increase fishing opportunities 
for BFT within the existing U.S. quota, particularly within the General 
and Harpoon category subquotas, which have been underharvested for 
several years. These three effort controlling actions would affect only 
when and where BFT mortality occurs, and not the magnitude. The 
magnitude of mortality has been defined by finite quotas and fish size 
limits established under a 20-year rebuilding program for BFT (analyzed 
in the 1999 HMS FMP Environmental Impact Statement), and other 
recommendations by ICCAT. The 2008 ICCAT recommendation was made after 
consideration of scientific and statistical information, including the 
2008 BFT stock assessment. The projected BFT rebuilding program is 
based on total allowable catch (in weight) and assumes that the pattern 
of fishing mortality (e.g., fish caught at each age) will not be 
changed dramatically. As long as the U.S. quota is not exceeded and 
there is no significant change in the selectivity of the fisheries, the 
proposed actions would not be expected to impact the rebuilding 
program.
     Other than prohibiting directed fishing in the Gulf of Mexico, 
time period subquotas are used in the General category to regulate 
effort, which helps achieve optimum yield by considering the social and 
economic interests of the participants. This proposed action is 
intended to enable more thorough utilization of the available U.S. 
quota, while ending BFT overfishing, rebuilding the BFT stock by 2019, 
and minimizing bycatch and bycatch mortality to the extent practicable.
    NMFS has prepared a draft EA/RIR/IRFA which presents and analyzes 
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 is available from NMFS (see ADDRESSES).

II. Adjustment of the General Category Maximum Daily Retention Limit

    Effort controls, such as daily retention limits and restricted-
fishing days (not implemented for several years), are meant to maximize 
the opportunity for catching the quota and achieving biological, 
social, and economic benefits while balancing relative costs and 
negative impacts. For example, certain effort controls might provide 
more flexibility for the fishery by increasing retention limits when 
fish are known to be available on the fishing grounds in certain areas, 
and then reducing limits at other times so that limited quota may be 
available to other areas at other times.
    Under the current BFT retention limit regulations at Sec.  635.25, 
the default daily retention limit of large medium and giant BFT 
(measuring 73 inches or greater) is one fish per vessel. This limit has 
been in place since 1995. To provide for maximum utilization of the 
quota for BFT, NMFS may increase or decrease the daily retention limit 
of large medium and giant BFT over a range from zero (on restricted 
fishing days, if applicable) to a maximum of three per vessel, under 
NMFS' inseason action authority. Such increase or decrease will be 
based on the determination criteria and other relevant factors provided 
under Sec.  635.27(a)(8), which are:
    (i) The usefulness of information obtained from catches in the 
particular category for biological sampling and monitoring of the 
status of the stock.
    (ii) The catches of the particular category quota to date and the 
likelihood of closure of that segment of the fishery if no adjustment 
is made.
    (iii) The projected ability of the vessels fishing under the 
particular category quota to harvest the additional amount of BFT 
before the end of the fishing year.
    (iv) The estimated amounts by which quotas for other gear 
categories of the fishery might be exceeded.
    (v) Effects of the adjustment on BFT rebuilding and overfishing.
    (vi) Effects of the adjustment on accomplishing the objectives of 
the fishery management plan.
    (vii) Variations in seasonal distribution, abundance, or migration 
patterns of BFT.
    (viii) Effects of catch rates in one area precluding vessels in 
another area from having a reasonable opportunity to harvest a portion 
of the category's quota.
    (ix) Review of dealer reports, daily landing trends, and the 
availability of the BFT on the fishing grounds.
    The General category quota is utilized by vessels permitted in the 
Atlantic Tunas General category as well as to those HMS Charter/
Headboat permitted vessels fishing commercially for BFT. HMS Charter/
Headboat category participants may retain and land BFT under the daily 
limits and quotas applicable to the Angling or the General category, 
except when fishing in the Gulf of Mexico (where only one recreational 
``trophy'' large medium or giant BFT may be landed). The size of the 
first BFT retained determines the category applicable that day (e.g., 
if the first BFT retained is a large medium BFT, the vessel may fish 
only under the General category limit that day).
    During the comment period for the 2009 BFT Quota Specifications and 
Effort Controls and for the ANPR, NMFS received comments requesting a 
change to or elimination of the General category maximum daily 
retention limit to increase opportunities to utilize the General 
category quota, which has been underharvested for several years.
    NMFS proposes to increase the maximum daily retention limit to five 
fish per vessel, such that NMFS could increase or decrease the daily 
retention limit of large medium and giant BFT over a range from zero to 
a maximum of five per vessel via an inseason action

[[Page 57130]]

based on the determination criteria and other relevant factors provided 
under Sec.  635.27(a)(8). The intent of this alternative would be to 
increase opportunities to harvest the General category quota.
    Impacts of handgear used to fish for Atlantic tunas under the 
Atlantic Tunas General category and Harpoon categories are described in 
full in the Consolidated HMS FMP. NMFS anticipates that this action 
would have neutral to slightly negative ecological impacts. To the 
extent that large medium and giant BFT that would otherwise be 
discarded dead could be converted to landings, the impact would be 
neutral. Negative impacts could result from increased bycatch and 
bycatch mortality of small medium BFT (measuring 59 (150 cm) to less 
than 73 inches), which would have to be discarded as retention of BFT 
under 73 inches is prohibited in the commercial fisheries, and 
increased bycatch and bycatch mortality of large medium and giant BFT 
caught in excess of the five fish daily retention limit, if NMFS sets 
the limit at five fish via inseason action. The removal of a greater 
number of large medium and giant BFT than under current regulations may 
decrease spawning potential and subsequently have negative impacts on 
the stock. Some environmental organizations have commented during the 
ANPR that elimination of the maximum retention limit could also result 
in a substantial proportion of a school of BFT being taken at one time, 
having widespread age and/or genetic impacts on the stock. However, the 
limited nature of this action, particularly given the low General 
category success rate in retaining the current maximum daily retention 
limit of three fish, is unlikely to have any differential impacts on 
the life history or overall biological distribution of the western 
Atlantic BFT stock.
    NMFS also considered a no action alternative, which is not 
preferred because of the potential negative socioeconomic impacts and 
likelihood of decreased optimum yield, and an alternative to increase 
the maximum daily retention limit to five large medium or giant BFT per 
vessel, which is not preferred because of the potential negative 
ecological impact of a relatively large potential increase in BFT 
mortality, including undersized fish.
    Regardless of the alternative selected, NMFS would continue to 
maintain and exercise its authority to increase or decrease the daily 
retention limit as necessary following consideration of the 
determination criteria described above. This provision of the 
regulations provides some safeguard, if needed, to reduce potential 
negative impacts of fishing effort. Although few data are available, it 
is believed that the selective nature of hook and line and harpoon gear 
used by vessels fishing under the General category quota have minimal 
impact on discards or interactions with non-target species.
    The potential socioeconomic impacts associated with this proposed 
action could consist of increased ex-vessel revenues per trip and 
increased optimum yield. Increased socioeconomic impacts would depend 
on availability of large medium and giant BFT to the fishery, as well 
as the daily retention limit set by NMFS through inseason action. 
Nonetheless, this action would provide General and Charter/Headboat 
category vessels a reasonable opportunity to harvest the allocated 
General category quota in its designated time frame and allow greater 
fishing efficiency (i.e., by allowing vessels to attain a higher level 
of landings in a fewer number of trips and by increasing incentives for 
vessel operators to take multi-day trips). This alternative also would 
have positive socioeconomic impacts associated with converting dead 
discards of large medium and giant BFT to landings.

III. Adjustment of the General Category Season

    Prior to 2004, the General category quota was available to all 
commercial handgear tuna fishermen from the opening of the fishing year 
on June 1 through the end of the season on December 31. Due to high 
participation and limited quota, NMFS used effort controls such as 
restricted fishing days and time period subquotas to slow down the 
catch rate and distribute landings both geographically and over time. 
Prior to 1999, despite the implementation of effort controls in the 
General category, the quota was attained and the General category 
closed in mid to late summer while BFT were still off northern New 
England states. Despite the seasonal General category closure, a BFT 
fishery on large mediums and giants emerged off the coast of North 
Carolina during February and March. This southern fishery was 
recreational in nature because it occurred after the General category 
season closing. In later years, fish began to arrive in the region 
during the late fall/early winter, and interest in a commercial fishery 
developed.
    During the development of the 1999 FMP for Atlantic Tunas, 
Swordfish, and Sharks, the emergence of a General category BFT fishery 
in the southern Atlantic region was extensively discussed by the Highly 
Migratory Species Advisory Panel (HMS AP) and the public. At the time, 
the majority of General category fishing activity took place in the 
summer and fall off the New England and Mid-Atlantic coasts. However, 
the HMS AP did not agree on how the HMS FMP should address the scope of 
a southern area late season General category BFT fishery. In the early 
2000s, NMFS performed a number of inseason quota transfers of BFT, 
consistent with the transfer criteria established in the HMS FMP, which 
allowed the General category BFT fishery to extend into the winter 
months (i.e., late November - December). In 2002, NMFS received a 
Petition for Rulemaking from the North Carolina Division of Marine 
Fisheries to formalize this winter fishery and extend fishing 
opportunities for the General category into January (67 FR 69502, 
November 18, 2002). In December 2003, NMFS extended the General 
category end date from December 31 to January 31 (68 FR 74504, December 
24, 2003) to address some of the concerns raised in the Petition, as 
well as to increase fishing opportunities and optimum yield for the 
fishery overall. In the 2006, NMFS modified the General category time 
period subquotas to allow for a formalized winter fishery via the 
Consolidated HMS FMP. These subquotas remain effective and are shown, 
in Figure 1. The December and January time periods are currently 
allocated 5.2 percent and 5.3 percent of the General category base 
quota, respectively.
    The BFT fishery was managed on a fishing year basis (June through 
May) versus a calendar year basis (January through December) starting 
with the implementation of the 1999 FMP in 2000. In January 2008, 
management reverted to a calendar year basis per implementation of the 
Consolidated HMS FMP. As of 2008, the January time period and 
associated fishing activities now occur at the beginning rather than 
the end of the General category season.
    During the comment period for the 2009 BFT Quota Specifications and 
Effort Controls and for the ANPR, NMFS received comments requesting 
extension of the General category season as well as changes to the time 
period subquotas to increase opportunities to utilize the General 
category quota.
    NMFS proposes to allow the General category to remain open at the 
beginning of the calendar year until the January subquota is determined 
to be fully harvested. To effect this change, NMFS would adjust the BFT 
quota regulation that specifies the time period

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for which the first General category subquota is available, such that 
the period that begins January 1 would end upon the effective date of a 
closure notice that NMFS would file with the Office of the Federal 
Register when the quota apportioned to the period that begins January 1 
is projected to be reached, or May 31, whichever comes first. NMFS 
would continue to carry forward unharvested General category quota from 
one time period to the next time period. NMFS expects that this action 
effectively would lengthen the General category season by a few weeks, 
but the duration of the extension would depend on weather conditions 
and availability of large medium and giant BFT to the fishery during 
the winter months.
    This action may result in a shift in BFT landings, both temporally 
(to later in the season) and geographically to the South (i.e., off the 
South Atlantic states of North Carolina, South Carolina, Georgia, and 
the Florida East Coast). However, the number of BFT harvested from the 
large medium and giant size classes would remain consistent with the 
levels of BFT mortality used in the stock assessment. These temporal 
and spatial shifts in landings could result in a slight decrease or 
increase in protected resource interactions, discards, and incidental 
catch of other finfish. However, given the limited nature of this 
action, which would likely extend the winter fishery by less than a few 
weeks, NMFS does not expect any adverse ecological impacts.
    NMFS expects that this proposed action would increase the 
likelihood of winter General category participants and Charter/Headboat 
participants, when fishing commercially, being able to harvest the full 
January subquota, particularly if the adjusted January quota is 
established during the winter portion of the season. An increase in 
optimum yield may result from a potential increase in the geographic 
and temporal distribution of landings. Increases in positive 
socioeconomic impacts would depend on the availability of large medium 
and giant BFT to the fishery from the beginning of February until the 
BFT January subquota (base or adjusted, as applicable) is reached.
    NMFS also considered a no action alternative, which is not 
preferred because the potential negative socioeconomic impacts and 
likelihood of decreased optimum yield, as well as an alternative to 
establish a year-round General category fishing season and establish 
equal monthly time periods and subquotas, which is not preferred at 
this time as NMFS believes the topic of quota location merits further 
consideration and analyses.

IV. Adjustment of the Harpoon Category Daily Incidental Retention Limit

    When the Harpoon category was created in 1980, it was allocated a 
small portion of the handgear quota of giant tuna in recognition that 
harpooning had long been used as a method of catching giant tuna in the 
northern fishery and merited a historical niche in the giant fishery. 
In 1992, NMFS limited incidental retention large medium BFT to one per 
day as well as an unlimited number of giant BFT (measuring 81 inches 
(205 cm) or greater), within the Harpoon category quota (57 FR 32905, 
July 24, 1992). This action was taken to reduce the fishing mortality 
on large medium BFT, thus allowing for an increase in the spawning 
potential of the western Atlantic BFT stock, while allowing for the 
incidental take of large medium BFT to minimize regulatory discards and 
negative economic impacts.
    In 2003 (68 FR 74504, December 24, 2003), NMFS increased the large 
medium BFT tolerance limit to two fish per day to allow greater 
opportunity for Harpoon category participants to fully harvest its 
subquota and to address Harpoon vessel operator concerns about not 
being able to locate schools of exclusively giant BFT on the fishing 
grounds due to the mixing of the larger size classes within schools.
    During the comment period for the 2009 BFT Quota Specifications and 
Effort Controls and for the ANPR, NMFS received comments requesting an 
increase to, or elimination of, the Harpoon category incidental 
retention limit of large medium BFT.
    NMFS proposes to increase the daily incidental retention limit of 
large medium BFT to four per vessel. This action is intended to provide 
Harpoon category vessels a reasonable opportunity to harvest the 
allocated Harpoon category quota in its designated time frame and 
convert dead discards to landings.
    This action is expected to have neutral to slightly negative 
ecological impacts with regard to large medium BFT. To the extent that 
large medium BFT discards could be converted to landings, the impact 
would be neutral. Negative impacts could result from increased bycatch 
and bycatch mortality of small medium BFT (measuring 59 to less than 73 
inches) and large medium BFT in excess of the incidental limit while 
attempting to catch giant BFT, particularly as NMFS anticipates 
potential increases in large medium BFT abundance in the next few 
years. The removal of a greater number of large medium BFT than the 
status quo may decrease spawning potential and subsequently have 
negative ecological impacts on the stock. Although few data are 
available, it is believed that the selective nature of harpoon gear has 
minimal impact on discards or interactions with non-target species.
    The potential socioeconomic impacts associated with this proposed 
action could consist of increased ex-vessel revenues per trip and 
increased optimum yield. Increased socioeconomic impacts would depend 
on availability of large medium BFT to the fishery. This alternative 
also would have positive socioeconomic impacts associated with 
converting dead discards of large medium BFT to landings.
    NMFS also considered a no action alternative, which is not 
preferred because of the potential negative socioeconomic impacts (to 
the extent that the incidental limit constrains large medium BFT 
landings) and potential decreased optimum yield, as well as an 
alternative to eliminate the Harpoon category daily incidental 
retention limit, which is not preferred because of the potential 
negative ecological impact of a relatively large potential increase in 
large medium BFT mortality.

V. Classification

    The NMFS Assistant Administrator has determined that this proposed 
rule is consistent with the 2006 Consolidated HMS FMP, 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).
    In compliance with section 603(b)(1) of the Regulatory Flexibility 
Act, the purpose of this proposed rulemaking is, consistent with the 
2006 Consolidated HMS FMP objectives, the Magnuson-Stevens Act, and 
other applicable law, to analyze the impacts of the alternatives for 
adjusting the General category maximum daily retention limit, extending 
the General category season,

[[Page 57132]]

and adjusting the Harpoon category daily incidental retention limit on 
small entities. The IRFA assesses the impacts of the various 
alternatives on the vessels that participate in the BFT General and 
Harpoon category fisheries, all of which are considered ``small 
entities.'' In order to do this, NMFS has estimated the average impact 
that each alternative would have on individual categories and the 
vessels within those categories.
    In compliance with section 603(b)(2) of the Regulatory Flexibility 
Act, the objectives of this proposed rulemaking are to enable more 
thorough utilization of the available U.S. BFT quota, while ending BFT 
overfishing, rebuilding the BFT stock by 2019, and minimizing bycatch 
and bycatch mortality to the extent practicable. Section 603(b)(3) 
requires Agencies to provide an estimate of the number of small 
entities to which the rule would apply. NMFS considers all HMS permit 
holders to be small entities because they either had average annual 
receipts less than $4.0 million for fish-harvesting, average annual 
receipts less than $6.5 million for charter/party boats, 100 or fewer 
employees for wholesale dealers, or 500 or fewer employees for seafood 
processors. These are the Small Business Administration (SBA) size 
standards for defining a small versus large business entity in this 
industry. As of December 31, 2008, 9,871 vessels were permitted to land 
and sell BFT under four commercial BFT quota categories (including 
charter/headboat vessels), with specifically 4,721 vessels in the 
General category, 4,827 in the Charter/Headboat category, and 26 in the 
Harpoon category.
    Under section 603(b)(4) of the Regulatory Flexibility Act, agencies 
are required to describe any new reporting, record-keeping and other 
compliance requirements. There are no new reporting or recordkeeping 
requirements contained in any of the alternatives considered for this 
action.
    Under section 603(b)(5) of the Regulatory Flexibility Act, agencies 
must identify, to the extent practicable, relevant Federal rules which 
duplicate, overlap, or conflict with the proposed rule. Fishermen, 
dealers, and managers in these fisheries must comply with a number of 
international agreements, domestic laws, and other FMPs. These include, 
but are not limited to, the Magnuson-Stevens Act, the Atlantic Tunas 
Convention Act, the High Seas Fishing Compliance Act, the Marine Mammal 
Protection Act, the Endangered Species Act, the National Environmental 
Policy Act, the Paperwork Reduction Act, and the Coastal Zone 
Management Act. This proposed rule has also been determined not to 
duplicate, overlap, or conflict with any other Federal rules.
    Under section 603(c) of the Regulatory Flexibility Act, agencies 
are required to describe any alternatives to the proposed rule which 
accomplish the stated objectives and which minimize any significant 
economic impacts. These impacts are discussed below and in the EA. 
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 proposed rule, consistent 
with Magnuson-Stevens Act and the Endangered Species Act (ESA), NMFS 
cannot exempt small entities or change the reporting requirements only 
for small entities because all the entities affected are considered 
small entities. Thus, there are no alternatives discussed that fall 
under the first and fourth categories described 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. Thus, there are no 
alternatives considered under the third category. As described below, 
NMFS analyzed several different alternatives in this proposed 
rulemaking and provides rationale for identifying the preferred 
alternative to achieve the desired objective.
    The alternatives considered and analyzed are described below. In 
2008, the annual gross revenues from the commercial BFT fishery were 
approximately $5.0 million. The commercial quota 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.
    Three alternatives were analyzed for the adjustment of the General 
category maximum daily retention limit. Alternative A1, the status quo 
alternative, would maintain the current maximum daily retention limit 
of three large medium BFT. The status quo alternative could result in 
negative socioeconomic impacts to the extent that the daily retention 
limit constrains large medium and giant BFT landings. The inability of 
the General category to land and sell its full allotted quota results 
in decreased optimum yield.
    Alternative A2, an increase in the maximum daily retention limit to 
five fish per vessel, could have positive economic impacts, if NMFS 
increases the daily retention limit from the default level of one fish 
to five fish via a separate action, due to the increased potential to 
land additional large medium and giant BFT rather than discarding fish 
in excess of the current maximum daily retention limit (e.g., if a 
fourth commercial size BFT is caught in one day). Ex-vessel revenues 
per trip could increase on average by approximately $8,500 per active 
vessel (2 fish x the 2008 average fish weight of 500 lb x $8.44 General 
category ex-vessel average price/lb), depending on availability of 
large medium and giant BFT to the fishery. Allowing a higher maximum 
daily retention limit could also reduce the trip costs per fish landed, 
and thus improve profitability of trips when additional fish are 
available. Alternative A2 is the preferred alternative, as it would 
increase opportunities for General and Charter/Headboat category 
vessels to land the General category quota while balancing concerns 
regarding BFT stock health.
    Alternative A3, elimination of the maximum daily retention limit, 
would have positive socioeconomic impacts associated with the increased 
potential to land all large medium and giant BFT in excess of the 
current maximum daily retention limit rather than discarding them. 
Although this alternative would provide the most positive economic 
impacts, it is not preferred because of the potential negative 
ecological impact of a relatively large potential increase in BFT 
mortality, including undersized fish.
    Three alternatives were analyzed for the adjustment of the General 
category season. Under Alternative B1, the status quo alternative, the 
General category season would end on January 31 of each fishing year or 
when the General category January subquota is harvested, whichever 
comes first. Under this alternative, NMFS anticipates neutral impacts 
on General and Charter/Headboat category vessels relative to 2008.
    Under preferred Alternative B2, which would allow the General 
category

[[Page 57133]]

to remain open until the date NMFS determines that the January subquota 
(adjusted if applicable) has been met, NMFS anticipates that overall 
economic impacts of this alternative to the General category and 
Charter/Headboat BFT fishery as a whole would be neutral since the same 
overall amount of the General category quota would be landed and the 
value of the General category quota would not be changed. However, 
General category fishermen in the southern region (approximately 1,300 
vessels) would be positively affected by this alternative as it would 
allow increased opportunities to land and sell BFT commercially and 
increased utilization of existing investment in gear and equipment, 
especially if quota is still available for harvest after January 31.
    Under Alternative B3, which would establish a January through 
December General category season and establish 12 equal monthly General 
category time periods and subquotas (of 8.3 percent each), resulting 
impacts would be mixed, but positive overall. Winter fishery 
participants would benefit from increased opportunities to harvest 
large medium and giant BFT, if available, during the months of February 
through March. General category and Charter/Headboat category 
participants in the New England area, or those participants that pursue 
BFT in the summer months, might experience some adverse social and 
economic impacts due to the shift in quota to the earlier (winter) 
portion of the season. However, these effects would be mitigated by the 
effects of the carryforward of unharvested quota from one time period 
to the next. This is not the preferred alternative at this time as NMFS 
believes the topic of quota location merits further consideration and 
analyses.
    Three alternatives were analyzed for the adjustment of the Harpoon 
category incidental daily retention limit. Alternative C1, the status 
quo alternative, would maintain the current incidental daily retention 
limit of two large medium BFT. The status quo alternative could result 
in negative socioeconomic impacts to the extent that the incidental 
limit constrains large medium BFT landings. The inability of the 
Harpoon category to land and sell its full allotted quota results in 
decreased optimum yield.
    Alternative C2, an increase in the incidental daily retention limit 
to four large medium BFT, would have positive socioeconomic impacts 
associated with the increased potential to land additional large medium 
BFT rather than discarding fish in excess of the current incidental 
limit (e.g., if a third large medium is caught while pursuing giant 
BFT). Ex-vessel revenues per trip could increase, depending on 
availability of large medium BFT to the fishery. Ex-vessel revenues per 
trip could increase on average by approximately $4,600 per active 
vessel (2 fish x the 2008 average Harpoon category fish weight of 360 
lb x $6.36 Harpoon category ex-vessel average price/lb), depending on 
availability of large medium BFT to the fishery. Allowing a higher 
daily incidental retention limit could also reduce the trip costs per 
fish landed, and thus improve profitability of trips when additional 
fish are available. Alternative C2 is the preferred alternative as it 
would increase opportunities for Harpoon category vessels to land the 
Harpoon category quota while balancing concerns regarding BFT stock 
health.
    Alternative C3, elimination of the incidental limit, would have 
positive socioeconomic impacts associated with the increased potential 
to land all large medium BFT in excess of the current incidental limit 
rather than discarding them. Although this alternative would provide 
the most positive economic impacts, it is not preferred because of the 
potential negative ecological impact of a relatively large potential 
increase in large medium BFT mortality.

VI. 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-
9260, at least 7 days prior to the meeting.

List of Subjects in 50 CFR Part 635

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

    Dated: October 29, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, 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:

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

    2. In Sec.  635.23, paragraphs (a)(4) and (d) are revised to read 
as follows:


Sec.  635.23  Retention limits for BFT.

* * * * *
    (a) * * *
    (4) To provide for maximum utilization of the quota for BFT, NMFS 
may increase or decrease the daily retention limit of large medium and 
giant BFT over a range from zero (on RFDs) to a maximum of five per 
vessel. Such increase or decrease will be based on the criteria 
provided under Sec.  635.27(a)(8). NMFS will adjust the daily retention 
limit specified in paragraph (a)(2) of this section by filing an 
adjustment with the Office of the Federal Register for publication. In 
no case shall such adjustment be effective less than 3 calendar days 
after the date of filing with the Office of the Federal Register, 
except that previously designated RFDs may be waived effective upon 
closure of the General category fishery so that persons aboard vessels 
permitted in the General category may conduct tag-and-release fishing 
for BFT under Sec.  635.26.
* * * * *
    (d) Harpoon category. Persons aboard a vessel permitted in the 
Atlantic Tunas Harpoon category may retain, possess, or land an 
unlimited number of giant BFT per day. An incidental catch of only four 
large medium BFT per vessel per day may be retained, possessed, or 
landed.
* * * * *
    3. In Sec.  635.27, paragraph (a)(1)(i)(A) is revised to read as 
follows:


Sec.  635.27  Quotas.

    (a) * * *
    (1) * * *
    (i) * * *
    (A) January 1 through the effective date of a closure notice filed 
by NMFS announcing that the January subquota is reached, or projected 
to be reached under Sec.  635.28(a)(1), or until May 31, whichever 
comes first - 5.3 percent (25.2 mt);
* * * * *
[FR Doc. E9-26575 Filed 11-03-09; 8:45 am]
BILLING CODE 3510-22-S