[Federal Register Volume 77, Number 242 (Monday, December 17, 2012)]
[Rules and Regulations]
[Pages 74612-74615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30322]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 120306154-2241-02]
RIN 0648-XC382


Atlantic Highly Migratory Species; Atlantic Bluefin Tuna 
Fisheries

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Temporary rule; inseason quota transfer and General category 
retention limit adjustment.

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SUMMARY: NMFS is transferring 40 metric tons (mt) of Atlantic bluefin 
tuna (BFT) quota from the Reserve category to the General category for 
the remainder of the 2012 fishing year. NMFS also is adjusting the 
Atlantic tunas General category BFT daily retention limit to two large 
medium or giant BFT for the January 2013 subquota period (i.e., from 
January 1 through March 31, 2013, or until the available subquota for 
that period is reached, whichever comes first). This action is based on 
consideration of the regulatory determination criteria regarding 
inseason adjustments, and applies to Atlantic tunas General category 
(commercial) permitted vessels and Highly Migratory Species (HMS) 
Charter/Headboat category permitted vessels when fishing commercially 
for BFT.

DATES: The quota transfer is effective December 15, 2012, through 
December 31, 2012. The General category retention limit adjustment is 
effective January 1, 2013, through March 31, 2013.

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

SUPPLEMENTARY INFORMATION: Regulations implemented under the authority 
of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq.) and 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of BFT by 
persons and vessels subject to U.S. jurisdiction are found at 50 CFR 
part 635. Section 635.27 subdivides the U.S. BFT quota recommended by 
the International Commission for the Conservation of Atlantic Tunas 
(ICCAT) among the various domestic fishing categories, per the 
allocations established in the 2006 Consolidated Highly Migratory 
Species Fishery Management Plan (Consolidated HMS FMP) (71 FR 58058, 
October 2, 2006) and in accordance with implementing regulations. NMFS 
is required under ATCA and the Magnuson-Stevens Act to provide U.S. 
fishing vessels with a reasonable opportunity to harvest the ICCAT-
recommended quota.
    The 2010 ICCAT recommendation regarding western BFT management 
resulted in baseline U.S. quotas for 2011 and for 2012 of 923.7 mt (not 
including the 25 mt ICCAT allocated to the United States to account for 
bycatch of BFT in pelagic longline fisheries in the Northeast Distant 
Gear Restricted Area). The 2011 BFT quota rule (76 FR 39019, July 5, 
2011) implemented the base quota of 435.1 mt for the General category 
fishery (the commercial tunas fishery in which handgear is used). Each 
of the General category time periods (January, June through August, 
September, October through November, and December) is allocated a 
portion of the annual General category quota. The 2012 BFT quota 
specifications (77 FR 44161, July 27, 2012) also put 41.8 mt into the 
Reserve category for inseason adjustments, and potential quota 
transfers, scientific research collection, and accounting for potential 
overharvest in any category except the Purse Seine category.
    The 2012 General category fishery is open until December 31, 2012, 
or until the General category quota is reached, whichever comes first. 
The 2013 General category fishery will open on

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January 1, 2013. This fishery may remain open until the ``January 
subquota'' amount is reached or March 31 (whichever comes first). The 
General category will then reopen for the remainder of the 2013 fishing 
year on June 1, 2013.
    Consistent with the allocation scheme established in the 
Consolidated HMS FMP and implementing regulations, the baseline 
category subquotas were established in the 2011 BFT quota rule as 
follows: 23.1 mt for January; 217.6 mt for June through August; 115.3 
mt for September; 56.6 mt for October through November; and 22.6 mt for 
December. Although NMFS published quota specifications for 2012 (77 FR 
44161, July 27, 2012), the baseline General category quota and 
subquotas as codified have not changed from the amounts established for 
the 2011 fishing year. The 2012 ICCAT recommendation regarding western 
BFT management did not result in changes to the baseline U.S. quota for 
2013.

Inseason Transfer to the General Category

    Under Sec.  635.27(a)(7), NMFS has the authority to allocate any 
portion of the Reserve category to any other category, other than the 
Angling category school BFT subquota (for which there is a separate 
reserve), after considering determination criteria provided under Sec.  
635.27(a)(8), which include: The usefulness of information obtained 
from catches in the particular category for biological sampling and 
monitoring of the status of the stock; 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; 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; the 
estimated amounts by which quotas for other gear categories of the 
fishery might be exceeded; effects of the adjustment on BFT rebuilding 
and overfishing; effects of the adjustment on accomplishing the 
objectives of the fishery management plan; variations in seasonal 
distribution, abundance, or migration patterns of BFT; 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; 
and a review of dealer reports, daily landing trends, and the 
availability of the BFT on the fishing grounds.
    NMFS has considered the determination criteria regarding inseason 
adjustments and their applicability to the General category fishery for 
the remainder of the 2012 fishing year. These considerations include, 
but are not limited to, the following:
    As of November 28, 2012, the General category has landed 428 mt, or 
98.4 percent of its 2012 quota of 435.1 mt. Without a quota transfer at 
this time, most or all of the December subquota established in the 2011 
final quota rule per the Consolidated HMS FMP (i.e., 5.2 percent of the 
General category quota, which is 22.6 mt for December 2012) effectively 
would not be available to fishermen who participate in the December 
fishery because nearly the entire General category quota has been used 
as of the end of November. Overall, approximately 72 percent (536 mt) 
of the total of the commercial BFT subquotas (747.2 mt, as published in 
the 2012 BFT quota specifications) has been harvested as of November 
28, 2012. The Purse Seine, Harpoon, and Trap categories are not 
expected to use all of their available 2012 quotas (i.e., approximately 
175 mt or more may remain unused). Also, as set out in the 2012 BFT 
quota specifications, NMFS will need to account for 2012 BFT landings 
and dead discards within the U.S. quota, consistent with ICCAT 
recommendations.
    A transfer from the Reserve category decreases the amount of unused 
quota available, if needed, to account for all landings and dead 
discards within the total 2012 U.S. quota once the dead discard 
information is available. However, our best estimates, in part based on 
a review of dead discard amounts over prior years and an initial 
examination of preliminary recreational landings estimates, indicate 
that the risk of exceeding the overall quota is very small. In the 
process of setting the 2012 BFT specifications, NMFS has already 
accounted up front for half of the current best estimate of the 2012 
bluefin tuna dead discards, and held a portion of the 2011 underharvest 
in the Reserve category rather than allocating it fully, indicating it 
could provide for greater management and accounting flexibility later 
in the fishing year. A quota transfer at this time would provide 
additional opportunities to harvest the available U.S. bluefin quota 
without exceeding it, while preserving the opportunity for General 
category fishermen to participate in the winter mid-Atlantic bluefin 
fishery that typically begins in December. In addition, several 
Atlantic tuna dealers are currently providing biological samples from 
BFT caught by General category vessels to support ongoing NMFS-approved 
research regarding reproduction status and feeding habits. Continued 
BFT landings would support the collection of a broad range of data for 
these studies and for stock monitoring purposes.
    Based on the considerations above, as well as the available quota, 
fishery performance in recent years, and the availability of BFT on the 
fishing grounds, NMFS has determined that a quota transfer is warranted 
and transfers 40 mt from the Reserve category to the General category. 
Thus, the General category quota is adjusted to 475.1 mt for the 2012 
fishing year. Once the adjusted General category quota has been 
reached, or on December 31, 2012 (whichever comes first), the 2012 
General category fishery will be closed. The 2013 General category 
fishery begins January 1, 2013.

Adjustment of General Category Daily Retention Limit

    Under Sec.  635.23(a)(4), NMFS may increase or decrease the daily 
retention limit of large medium and giant BFT (measuring 73 inches (185 
cm) curved fork length (CFL) or greater) over a range of zero to a 
maximum of five per vessel based on consideration of the relevant 
criteria provided under Sec.  635.27(a)(8), and listed above.
    For the 2012 fishing year to date, NMFS has adjusted the General 
category limit from the default level of one large medium or giant BFT 
as follows: Two large medium or giant BFT for January (76 FR 76900, 
December 9, 2011), and three large medium or giant BFT for June through 
August (77 FR 28496, May 15, 2012), and three large medium or giant BFT 
for September through December (77 FR 53150, August 31, 2012). Unless 
changed, the General category daily retention limit starting on January 
1 would be the default retention limit of one large medium or giant BFT 
per vessel per day/trip (Sec.  635.23(a)(2)). This default retention 
limit applies to General category permitted vessels and to HMS Charter/
Headboat category permitted vessels when fishing commercially for BFT.
    NMFS has considered the set of criteria cited above and their 
applicability to the General category BFT retention limit for the 
January 2013 General category fishery. These considerations include, 
but are not limited to, the following: Biological samples collected 
from BFT landed by General category fishermen and provided by BFT 
dealers continue to provide NMFS with valuable parts and data for 
ongoing scientific studies of BFT age and growth, migration, and 
reproductive status. As this action would be taken consistent with the 
quotas previously established and analyzed in the 2011 BFT quotas final 
rule (76 FR 39019, July 5, 2011), and

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consistent with objectives of the Consolidated HMS FMP, it is not 
expected to negatively impact stock health.
    A principal consideration is the objective of providing 
opportunities to harvest the full General category quota without 
exceeding it based upon the Consolidated HMS FMP goal: ``Consistent 
with other objectives of this FMP, to manage Atlantic HMS fisheries for 
continuing optimum yield so as to provide the greatest overall benefit 
to the Nation, particularly with respect to food production, providing 
recreational opportunities, preserving traditional fisheries, and 
taking into account the protection of marine ecosystems.'' Under the 
two-fish limit that applied in January 2012, the available subquota was 
reached on January 22. However, in other recent years, there has been 
an underharvest of the January subquota. Under the two-fish limit that 
applied during January 2011 and January 2010 (when fishing on the 
January subquota was authorized for January 1 through 31), January 
landings were 34 percent of the baseline subquota (7.9 mt out of 23.1 
mt) and 11 percent (2.7 mt out of 23.8 mt), respectively. Thus, the 
default one-fish limit likely would be overly restrictive and would not 
support the objective of providing opportunities to harvest the full 
January subquota, without exceeding it. Based upon the ICCAT 
recommended quota, the baseline 2013 General category January subquota 
is 23.1 mt. Although NMFS has the authority to set the daily retention 
limit higher than two BFT, under a higher limit (and fish 
availability), the rate of harvest of the January subquota could be 
accelerated and result in a relatively short fishing season. A short 
fishing season may preclude or reduce fishing opportunities for some 
individuals or geographic areas. Therefore, in order to maintain an 
equitable distribution of fishing opportunities, a retention limit 
closer to the low end of the allowable range of retention limits (i.e., 
two fish) is warranted. A potential ancillary benefit from a subquota 
period that is open for an extended duration is that any scientific 
information (including biological samples) collected from BFT may be 
from fish collected over a broader temporal and geographic range than 
currently sampled. Lastly, fishery participants have supported this 
retention limit in prior seasons.
    Therefore, based on these considerations, NMFS has decided that a 
two-fish General category retention limit is warranted for the January 
subquota. It would provide a reasonable opportunity to harvest the U.S. 
quota of BFT without exceeding it, while maintaining an equitable 
distribution of fishing opportunities, help achieve optimum yield in 
the General category BFT fishery, allow collection of a broad range of 
data for stock monitoring purposes, and be consistent with the 
objectives of the Consolidated HMS FMP. Therefore, NMFS increases the 
General category retention limit from the default limit (one) to two 
large medium or giant BFT per vessel per day/trip, effective January 1, 
2013, through March 31, 2013, or until the 23.1- mt January subquota is 
harvested, whichever comes first.
    Regardless of the duration of a fishing trip, the daily retention 
limit applies upon landing. For example, whether a vessel fishing under 
the General category limit takes a two-day trip or makes two trips in 
one day, the daily limit of two fish may not be exceeded upon landing. 
This General category retention limit is effective in all areas, except 
for the Gulf of Mexico, and applies to those vessels permitted in the 
General category as well as to those HMS Charter/Headboat permitted 
vessels fishing commercially for BFT.

Monitoring and Reporting

    NMFS will continue to monitor the BFT fishery closely through the 
mandatory dealer landing reports, which NMFS requires to be submitted 
within 24 hours of a dealer receiving BFT. Depending on the level of 
fishing effort and catch rates of BFT, NMFS may determine that 
additional retention limit adjustments or closure are necessary to 
ensure available quota is not exceeded or to enhance scientific data 
collection from, and fishing opportunities in, all geographic areas.
    Closures or subsequent adjustments to the daily retention limits, 
if any, will be published in the Federal Register. In addition, 
fishermen may call the Atlantic Tunas Information Line at (888) 872-
8862 or (978) 281-9260, or access http://hmspermits.noaa.gov, for 
updates on quota monitoring and retention limit adjustments.

Classification

    The Assistant Administrator for NMFS (AA) finds that it is 
impracticable and contrary to the public interest to provide prior 
notice of, and an opportunity for public comment on, this action for 
the following reasons:
    The regulations implementing the Consolidated HMS FMP provide for 
inseason retention limit adjustments to respond to the unpredictable 
nature of BFT availability on the fishing grounds, the migratory nature 
of this species, and the regional variations in the BFT fishery. 
Affording prior notice and opportunity for public comment to implement 
the quota transfer for the remainder of 2012 is impracticable as it 
would preclude NMFS from acting promptly to allow continued harvest of 
BFT that are available on the fishing grounds via a quota transfer from 
the Reserve category to the General category. Affording prior notice 
and opportunity for public comment to adjust the retention limit for 
the portion of the General category season that begins January 1, 2013, 
is impracticable as NMFS needs to wait until it has necessary data and 
information about the fishery before it can select the appropriate 
retention limit for a time period prescribed by regulation. By the time 
NMFS has the needed data, implementing the retention limit following a 
public comment period would preclude fishermen from harvesting BFT that 
are legally available consistent with all of the regulatory criteria. 
Analysis of available data shows that the General category BFT 
retention limits may be increased with minimal risks of exceeding the 
ICCAT-allocated quota.
    Delays in increasing these retention limits would adversely affect 
those General and Charter/Headboat category vessels that would 
otherwise have an opportunity to harvest more than the default 
retention limit of one BFT per day/trip and may exacerbate the problem 
of low catch rates and quota rollovers. Limited opportunities to 
harvest the respective quotas may have negative social and economic 
impacts for U.S. fishermen that depend upon catching the available 
quota within the time periods designated in the Consolidated HMS FMP. 
Adjustment of the retention limit needs to be effective January 1, 
2013, or as soon as possible thereafter, to minimize any unnecessary 
disruption in fishing patterns, to allow the impacted sectors to 
benefit from the adjustment, and to provide fishing opportunities for 
fishermen who have access to the fishery only during this time period. 
Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive 
prior notice and the opportunity for public comment. For all of the 
above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 
30-day delay in effectiveness.
    This action is being taken under 50 CFR 635.23(a)(4) and 
635.27(a)(7), and is exempt from review under Executive Order 12866.

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


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    Dated: December 11, 2012.
Emily H. Menashes,
Deputy Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. 2012-30322 Filed 12-12-12; 4:15 pm]
BILLING CODE 3510-22-P