[Federal Register Volume 77, Number 145 (Friday, July 27, 2012)]
[Rules and Regulations]
[Pages 44161-44168]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18404]



National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 120306154-2241-02]
RIN 0648-XA920

Atlantic Highly Migratory Species; 2012 Atlantic Bluefin Tuna 
Quota Specifications

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

ACTION: Final rule.


SUMMARY: NMFS establishes 2012 quota specifications for the Atlantic 
bluefin tuna (BFT) fisheries. This action is necessary to implement 
binding 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).

DATES: Effective August 27, 2012 through December 31, 2012.

ADDRESSES: Supporting documents, including the 2011 Environmental 
Assessment, Regulatory Impact Review, and Final Regulatory Flexibility 
Analysis, as well as others, such as the Fishery Management Plans and 
the scoping document described below may be downloaded from the HMS Web 
site at www.nmfs.noaa.gov/sfa/hms/. These documents also are available 
by request to Sarah McLaughlin at the telephone number below.

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

SUPPLEMENTARY INFORMATION: Atlantic bluefin tuna (BFT) are managed 
under the dual authority of the Magnuson-Stevens Act and ATCA. The 
United States is an active member of ICCAT, which implements binding 
conservation and management recommendations for species including 
bluefin tuna. 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, NMFS.


    ICCAT Recommendation 10-03 (Supplemental Recommendation by ICCAT 
concerning Western Atlantic Bluefin Tuna) established the total 
allowable catch for western Atlantic bluefin tuna for 2011 and 2012, 
including the United States' bluefin tuna quota. Through a final rule 
(76 FR 39019, July 5, 2011), NMFS implemented the United States' 
baseline quota and set domestic BFT fishing category quotas per the 

[[Page 44162]]

established in the 2006 Consolidated Atlantic Highly Migratory Species 
Fishery Management Plan (Consolidated HMS FMP) and as allowed in 
implementing regulations (71 FR 58058, October 2, 2006) (See Table 1, 
first column). The baseline quota and category subquotas are codified 
(See Table 1, second column) and will be effective until changed. 
Additionally, consistent with the Consolidated HMS FMP and NMFS 
implementing regulations, and as allowed by ICCAT recommendation, 
certain adjustments are made to the baseline quotas for underharvest 
from the previous year. This final action adjusts the quota as 
appropriate and allowable for the 2012 fishing year. Further background 
information, including the need for the 2012 BFT quota specifications, 
was provided in the preamble to the proposed rule (77 FR 15712, March 
16, 2012) and is not repeated here.

Changes From the Proposed Rule

    NMFS determines the amount of BFT quota actually available for the 
year by adjusting the ICCAT-recommended baseline BFT quota for 
overharvest or underharvest from the previous fishing year and any 
accounting for dead discards. At the time the proposed rule was 
prepared, NMFS used the 2010 estimate of 122.3 mt as a proxy for 
potential 2012 dead discards because the BFT dead discard estimate for 
2011 was not yet available. The more recent 2011 dead discard estimate, 
145.2 mt, became available from the NMFS Southeast Fisheries Science 
Center in mid-June 2012. As anticipated and explained to the public at 
the proposed rule stage, NMFS is using the more recent dead discard 
estimate as a proxy in this final rule because it is the best available 
and most complete information NMFS currently has regarding dead 
    Based on data available as of June 5, 2012, landings for 2011 
totaled 738.5 mt. Adding the 2011 dead discard estimate (145.2 mt) 
results in a preliminary 2011 total catch of 883.7 mt, which is 159.9 
mt less than the amount of quota (inclusive of dead discards) allowed 
under ICCAT Recommendation 10-03 (948.7 mt plus 94.9 mt of 2010 
underharvest carried forward to 2011, totaling 1,043.6 mt). Thus, the 
underharvest for 2011 is approximately 160 mt. The current ICCAT 
recommendation limits the amount of underharvest the United States may 
carry forward to 2012 to 10 percent of the total U.S. quota or 94.9 mt.
    As proposed, NMFS is accounting up front (i.e., at the beginning of 
the fishing year) for half of the expected dead discards for 2012, 
using the best available estimate of dead discards (2011), and 
deducting that portion directly from the Longline category subquota. 
This is the same approach that NMFS took for the final 2011 BFT quota 
specifications. Accounting for dead discards in the Longline category 
in this way may provide further incentive for pelagic longline 
fishermen to reduce interactions that can result in dead discards.
    Regarding the unharvested 2011 BFT quota, NMFS had proposed to 
carry the 94.9 mt of available underharvest forward to 2012 and 
distribute that amount in the same manner as specified for 2011 (i.e., 
half to the Longline category and half to the Reserve category), and 
stated that any necessary adjustments to the 2012 specifications would 
be made in the final rule after considering updated 2011 landings 
information and the 2011 dead discard estimate. NMFS also stated that 
it could allocate the amount carried forward in another manner after 
considering domestic management needs for 2012.
    During preparation of the final rule, NMFS closed the southern area 
incidental Longline bluefin tuna fishery on May 29, 2012 (77 FR 31546), 
and the northern area incidental Longline bluefin tuna fishery on June 
30, 2012 (77 FR 38011), for the remainder of the year, because landings 
had met the codified subquotas for those areas. While pelagic longline 
fishing for swordfish and other target species may continue in the 
northern and southern Longline areas (with the separation at 31[deg] N. 
lat., around the Georgia/Florida border), BFT may no longer be 
retained, possessed, or landed by longline vessels in those areas. 
Given that the incidental Longline fishery for bluefin tuna in these 
areas is over, accounting for these landings now is appropriate and 
allows for greater transparency than year-end accounting. The 
incidental Longline fishery for bluefin tuna in the Northeast Distant 
gear restricted area, an area far offshore the northeastern United 
States, remains open at this time under a separate, ICCAT-recommended 
allocation of 25 mt.
    Taking all of this information into consideration, NMFS is 
deducting half of the estimated dead discards up front, is applying 
76.2 of the 94.9 mt (the available underharvest) to the Longline 
category, and is maintaining the remaining underharvest (18.7 mt) in 
the Reserve category. Providing this amount to the Longline category 
adjusts the Longline South and Longline North subquotas to the amount 
actually taken in those areas this year, as detailed below. Consistent 
with determination criteria at Sec.  635.27(a)(8), NMFS may allocate 
any portion of the Reserve category quota for inseason or annual 
adjustments to any other quota category. In the proposed rule, NMFS 
anticipated the possibility of such moderate alterations between the 
proposed and final amounts and distribution, based on updated 
information and management objectives.
    The incidental Longline fishery for bluefin tuna in the Northeast 
Distant gear restricted area, an area far offshore the northeastern 
United States, remains open at this time under a separate, ICCAT-
recommended allocation of 25 mt.

2012 Quota Specifications

    Specifically, NMFS in this final rule deducts half of the 2011 dead 
discard estimate of 145.2 mt (i.e., 72.6 mt) directly from the baseline 
Longline category quota of 74.8 mt and applies 76.2 of the 94.9 mt 
allowed to be carried forward to 2012 to the Longline category (i.e., 
74.8 - 72.6 + 76.2 = 78.4 mt adjusted Longline subquota, not including 
the 25-mt allocation set aside by ICCAT for the Northeast Distant gear 
restricted area (NED)). NMFS adds the remainder of the 2011 
underharvest that can be carried forward to 2012 (18.7 mt) to the 
Reserve category's baseline allocation of 23.1 mt, for an adjusted 
Reserve category quota of 41.8 mt for 2012. For the directed fishing 
categories (i.e., the Angling, General, Harpoon, Purse Seine 
categories) as well as the Trap category, NMFS is not adjusting the 
codified baseline BFT quotas and subquotas that were established in 
July 2011 (76 FR 39019, July 5, 2011).
    Thus, in accordance with ICCAT Recommendation 10-03, the domestic 
category allocations established in the Consolidated HMS FMP, and 
regulations regarding annual adjustments at Sec.  635.27(a)(10), NMFS 
establishes BFT quota specifications for the 2012 fishing year as 
follows, and as shown in the fifth column of Table 1): General 
category--435.1 mt; Harpoon category--36 mt; Purse Seine category--
171.8 mt; Angling category--182 mt; Longline category--78.4 mt; and 
Trap category--0.9 mt. The Longline category quota of 78.4 mt is 
subdivided as follows: 27.6 mt to pelagic longline vessels landing BFT 
north of 31[deg] N. latitude, and 50.8 mt to pelagic longline vessels 
landing BFT south of 31[deg] N. latitude. NMFS accounts for landings 
under the 25-mt NED allocation separately from other Longline category 
landings. The amount allocated to the Reserve category for inseason 
adjustments, scientific research

[[Page 44163]]

collection, potential overharvest in any category except the Purse 
Seine category, and potential quota transfers is 41.8 mt.
    As described in the proposed rule, NMFS considers the deduction of 
half of the dead discard estimate from the Longline category a 
transitional approach from the method used for 2007 through 2010--in 
which the full dead discard estimate was deducted from the Longline 
category quota up front--that is appropriate to use again for 2012 as 
NMFS begins developing Amendment 7 to the Consolidated HMS FMP 
(Amendment 7) (77 FR 24161, April 23, 2012). Several potential 
management measures included in the Amendment 7 scoping document (see 
ADDRESSES) are intended to reduce and account for bluefin tuna dead 
discards. After public scoping on Amendment 7 has been completed, NMFS 
will prepare a draft Environmental Impact Statement and proposed rule. 
Management of the BFT fisheries continues under the current 
Consolidated HMS FMP, implementing regulations, and ICCAT 

[[Page 44164]]



Comments and Responses

    NMFS received five written comments on the proposed rule, and oral 
comments from the 13 participants who attended the two public hearings 
that NMFS held in Gloucester, MA, and Silver Spring, MD. Few of the 
comments NMFS received were focused specifically on the proposed quota 
specifications. The majority of those comments generally supported the 
proposed adjustment of the baseline BFT quota and subquotas. Below, 
NMFS summarizes and responds to all comments made specifically on the 
proposed rule received during the comment period. In addition, NMFS 
received comments on issues that were not part of this rulemaking. 
These comments are summarized under ``Other Issues'' below. Finally, 
NMFS addresses a comment received after the end of the comment period 
from the Center for Biological Diversity, the

[[Page 44165]]

Plaintiff in an ongoing legal case regarding bluefin tuna management.

A. 2012 Quota Specifications

    Comment 1: One commenter stated that NMFS' proposed methodology to 
allocate the quotas is appropriate because it is the same methodology 
used in 2011 and it allows for continued participation by all of the 
fishery's user groups. Another stated that NMFS should hold each 
category directly accountable for its own overharvests.
    Response: The approach used for these final 2012 quota 
specifications is an appropriate continuation of the approach used in 
2011 as a transition from the method used from 2007 through 2010. 
Changes in ICCAT's approach to western Atlantic bluefin tuna management 
in 2006 (i.e., discontinuation of the dead discard allowance and a new 
provision that the western BFT Total Allowable Catch include dead 
discards) have had implications for NMFS's domestic management of the 
fishery quota subcategories, as now the total of U.S. landings and dead 
discards is limited by the U.S. quota. Through this interim approach, 
NMFS is balancing the needs of the pelagic longline fishery to continue 
fishing for swordfish and Atlantic tunas with the needs of directed 
bluefin tuna fisheries participants. This action may provide some 
incentive for pelagic longline fishermen to reduce BFT interactions 
that can result in dead discards. Regarding the comment that NMFS 
should hold each subcategory accountable for its own dead discard, at 
this time there are no estimates of dead discards in other categories 
upon which to hold them accountable. NMFS is considering how best to 
modify data collection programs to provide dead discard estimates in 
the future in Amendment 7.
    Comment 2: One commenter requested that if, based on final 2011 
dead discard information, the amount of 2011 underharvest that the 
United States could carry forward to 2012 is less than the amount 
anticipated in the proposed rule (94.9 mt), NMFS should deduct the 
difference from the Longline category quota. Another commenter 
requested that NMFS take any difference from the Reserve category quota 
and asked that NMFS not give out extra quota for directed fisheries to 
land as that could result in an overharvest of the U.S. BFT quota.
    Response: Because final landings and dead discard information for 
2011 indicates that the amount of 2011 underharvest is greater than 
94.9 mt, the full 94.9 will be available as anticipated in the proposed 
rule, and no adjustment is necessary. Therefore, the question of how to 
divide a reduced amount of underharvest between the Longline category 
and the Reserve is moot. However, after considering the updated 2011 
BFT landings information and final dead discard estimate, NMFS has 
decided to apply 76.2 of the 94.9 mt (the available underharvest) to 
the Longline category and maintain the remainder (18.7 mt) in the 
Reserve category.
    Comment 3: One commenter expressed concern that NMFS may, in order 
to stay within the ICCAT-recommended U.S. quota, close directed BFT 
fisheries in the event that unused quota, including the Reserve quota, 
is insufficient to account for Longline category landings overharvests 
and dead discards.
    Response: The United States must account for dead discards, 
regardless of which fishery they occur in, to comply with ICCAT 
recommendations. It is important to consider that the BFT quota 
allocations in the Consolidated HMS FMP were based on historic landings 
and were established initially in 1992. Baseline quotas were modified 
in 1995 and 1997, but have remained the same since implementation of 
the 1999 FMP, when a separate discard allowance was provided for in the 
ICCAT BFT recommendation. Following ICCAT's elimination of the dead 
discard allowance and change to include dead discards within TACs in 
2006, NMFS has not modified the allocation scheme to include dead 
discards in the baseline quotas. The United States has accounted for 
this mortality as part of the domestic specification calculation 
process for the last several years and reports dead discard estimates 
to ICCAT annually. Regarding the concern about potential closure, NMFS 
manages each fishing category to its landings quota for a given year, 
and it is highly unlikely that NMFS would close a fishery prior to the 
available quota for that category being met.
    As indicated above and below, through Amendment 7, NMFS is 
considering how best to reduce and account for BFT dead discards and 
methods to improve reporting and monitoring of discards and landings.
    Comment 4: NMFS should add to the Reserve category quota the shares 
of the two purse seine vessels that historically have participated in 
the BFT Purse Seine category fishery but that have recently been sold 
and are involved in non-tuna fisheries.
    Response: The current BFT quota regulations, which implement the 
allocation shares set out in the Consolidated HMS FMP, require that 
NMFS make equal allocations of the available Purse Seine category quota 
to the Purse Seine category permit holders that request allocation for 
a given fishing year (Sec.  635.27(a)(4)(iii)). Thus, current 
regulations do not allow NMFS to initially allocate the Purse Seine 
category quota the way the commenter requests. Any change to the 
procedures for initially allocating Purse Seine category quota would 
require amendment to the Consolidated HMS FMP. NMFS is currently in the 
scoping process of Amendment 7, with comments on the scoping document 
(see ADDRESSES) being accepted through July 15, 2012.

B. Other Issues

    NMFS received comments on issues beyond the scope of this 
rulemaking, as outlined under seven subheadings below. NMFS has 
included several of these topics in the scoping document for Amendment 
7. NMFS has also requested comments and/or suggestions on any of the 
Consolidated HMS FMP management objectives, as well as any potential 
management measures that may achieve those objectives so they can be 
incorporated for future public input. Potential management measures 
include, but are not limited to: revision of baseline quota 
allocations, reduction of and accounting for dead discards; new and/or 
modified time and area closures; and methods to improve reporting and 
monitoring of discards and landings. The potential measures listed in 
the scoping document are intended to be catalysts for scoping, and 
should not be viewed as the entire range of options NMFS is taking into 
(1) BFT Baseline Quotas and Allocations
    NMFS received various requests to consider catch data rather than 
just landings data to establish a more effective distribution of quota, 
enabling better quota utilization and fewer discards; to provide all 
categories with more quota if the Total Allowable Catch increases; and 
to reduce all BFT quotas by 50 percent.
(2) Bycatch and Dead Discards
    NMFS received a request to use the term ``regulatory discards'' 
rather than ``dead discards,'' to provide a clear explanation of the 
dead discards estimation methodology that is understandable by 
laypersons, to require observer coverage and logbook use for all permit 
categories, and to calculate the anticipated reduction in dead discards 
from weak hook use in the Gulf of Mexico when considering a

[[Page 44166]]

proxy for the 2011 dead discard estimate.
(3) Permits
    NMFS received a request to change all BFT permits from open access 
to limited access. The commenter stated that the open access nature of 
the fishery compounds the quota allocation issue.
(4) Data
    NMFS received a comment that the Angling category landings are 
completely estimated and may be significantly incorrect, and a comment 
that NMFS should collect more information on all BFT (commercial and 
recreational), whether landed or discarded dead.
    NMFS received a comment that the stock assessment science 
considered by ICCAT lags behind what the U.S. fishermen are seeing on 
the water, resulting in U.S. fishermen fighting among themselves while 
eastern Atlantic and Mediterranean BFT fishermen benefit. Some 
commenters stated that the U.S. delegation to ICCAT should renegotiate 
the BFT recommendation to increase quotas and the amount of 
underharvest allowed to be carried forward from one year to the next 
and should pursue two-year balancing periods for increased flexibility.
(6) Inseason BFT Fishery Management
    NMFS received requests to set the General category daily retention 
limit for June through August at four fish, to close the Longline 
category southern area BFT fishery as soon as the quota is met, and to 
carefully monitor pelagic longline activity on the east coast of 
(7) Public Hearings
    NMFS received a request to hold hearings in all areas, despite 
budget restraints, so that all affected fishermen have the opportunity 
to present their perspectives on any rule that may affect them. Another 
commenter requested that NMFS hold more meetings generally, with at 
least half being conducted in metropolitan areas rather than 
specifically in areas where participants profit from fisheries.

C. Comment From the Center for Biological Diversity

    On May 4, 2012, 18 days after the comment period for this proposed 
rule ended, the Center for Biological Diversity (Center) submitted 
comments on the rule, including a request that NMFS supplement the 
Environmental Assessment prepared for the final 2011 quota rule (76 FR 
39019, July 5, 2011) to consider information about the Deepwater 
Horizon/BP oil spill and alleged illegal fishing on the eastern 
Atlantic and Mediterranean BFT stock, due to the potential effects of 
mixing on western Atlantic BFT stock recovery. The Center claims that 
the proposed 2012 quota specifications would violate National Standards 
1 and 2 by carrying forward any of the 2011 bluefin tuna underharvest 
to 2012 and allocating it to fishermen, because they argue that the 
proposed rule fails to prevent overfishing and use the best available 
science on the effects of the Deepwater Horizon/BP oil spill and the 
effects of mixing of eastern and western BFT stocks. Under National 
Standard 1, conservation and management measures shall prevent 
overfishing while achieving, on a continuing basis, the optimum yield 
from each fishery for the U.S. fishing industry. Under National 
Standard 2, conservation and management measures shall be based upon 
the best scientific information available. In December 2011, the Center 
filed a complaint against the Secretary of Commerce, NOAA, and NMFS, 
regarding a November 2011 final rule implementing Adjustments to the 
Atlantic Bluefin Tuna General and Harpoon Category Regulations (76 FR 
74003, November 30, 2011). The Center claims that the rule violated the 
Magnuson-Stevens Act, the National Environmental Policy Act, and the 
Administrative Procedure Act.
    NMFS is not required under the Administrative Procedure Act to 
respond to comments received following the end of a rule's comment 
period. NMFS typically takes late comments ``into consideration'' 
without formally responding to those comments, but has the option of 
formally addressing such comment in a final rule. Nonetheless, NMFS 
will respond to the Center's comments. Below, NMFS addresses the 
portions of the Center's comment that are relevant to this rulemaking.

Deepwater Horizon/BP Oil Spill

    In 2010, in response to a petition to list BFT under the Endangered 
Species Act submitted by the Center, NMFS convened a status review team 
(Team) to review the status of western BFT. As described on pages 48 
through 50 of the BFT Status Review Report (available at: 
www.nmfs.noaa.gov/stories/2011/05/docs/bft_srr_final.pdf) the Team 
modeled the potential effect of the Deepwater Horizon/BP oil spill on 
the future abundance of BFT. The Team compared projections made by the 
ICCAT Standing Committee on Research and Statistics (SCRS) in 2010 with 
similar projections that assume the number of BFT yearlings (one-year-
old fish) in 2011 would be reduced by 20 percent. The value of 20 
percent was based on a report by the European Space Agency that 
suggested that about 20 percent of the spawning habitat was oiled. The 
Team noted that another study suggested that considerably less than 20 
percent of the spawning habitat for western BFT was affected by the 
spill. However, given other factors, the Team regarded 20 percent as a 
reasonable upper bound for the mortality rate of BFT larvae owing to 
the spill event. The 20 percent reduction in the 2010 year-class (2011 
yearlings) results in less than a 4 percent reduction in spawning 
biomass when future catches are within the range historically allowed 
under ICCAT management (i.e., 2,500 mt or less). This result is not 
surprising because BFT are a relatively long-lived species and the 2010 
year class is only one of multiple year classes that will contribute to 
the spawning biomass in any given year. If the TAC remains less than 
2,500 mt, as is expected, then the western BFT stock would be expected 
to continue to increase despite the Deepwater Horizon/BP oil spill; if 
however, catches are allowed to exceed 2,500 mt, then the western stock 
would be expected to decline and any reduction in the 2010 year class 
would hasten that decline.
    The Team also conducted projections using the `MAST' model 
(Multistock Age-Structured Tag-Integrated assessment model), which uses 
electronic tagging data in an effort to account for intermixing between 
the eastern and western stocks, under the assumption that future 
catches in the western Atlantic would be 1,800 mt and future catches in 
the east would be 13,500 mt (slightly greater than allowed by the 
current management plans). The results of these modeling projections 
were very similar to those above. In this case, a 20-percent reduction 
in the 2010 year-class would be projected to cause only a 3-percent 
reduction in spawning biomass.
    The Team also considered the potential impacts of scenarios in 
which 20 percent of the adult BFT were also killed in 2010, in which 
case the spawning biomass would be immediately reduced by 20 percent, 
which might lead to additional reductions in the 2011 and subsequent 
year-classes (relative to what they would have been in the absence of 
the spill), and in turn, reductions in future spawning biomass levels. 
The Team noted, however, the absence of any

[[Page 44167]]

evidence that any portion of adults were actually deleteriously 
affected, and noted that all of the electronically-tagged bluefin tuna 
that were known to have spent time in the Gulf of Mexico during the 
actual spill event (8 fish) survived long after leaving the Gulf of 

Best Available Science

    In the 2011 SCRS Executive Summary (Section 8.5 of the recent ICCAT 
biennial report, which can be found at www.iccat.int/Documents/BienRep/REP_EN_10-11_II_2.pdf), the SCRS acknowledges that the conclusions 
of the 2010 assessment do not capture the full degree of uncertainty in 
the assessments and projections, and that an important factor 
contributing to uncertainty is mixing between fish of eastern and 
western origin. Limited analyses were conducted of the two stocks with 
mixing in 2008, but little new information was available in 2010. The 
SCRS states that management actions taken in the eastern Atlantic and 
Mediterranean are likely to influence recovery in the western Atlantic, 
because even small rates of mixing from East to West can have 
significant effects on the West due to the fact that the Eastern plus 
Mediterranean resource is much larger than that of the West. However, 
the extent of mixing is currently unknown, and is currently the subject 
of significant research.
    Regarding impacts of the Deepwater Horizon/BP oil spill, NMFS 
considers the information summarized in the BFT Status Review to be the 
best scientific information of the effect of the Deepwater Horizon/BP 
oil spill on bluefin tuna on which to base management actions at this 
time and no additional information is available upon which to change 
that basis. Regarding catch levels in the eastern Atlantic and 
Mediterranean on western Atlantic BFT, NMFS considers the information 
summarized in the reports of the SCRS to be the best scientific 
information to serve as the basis of management actions at this time, 
both internationally and domestically, but notes that a new scientific 
paper on the MAST model is available. NMFS expects this new information 
will be reviewed and incorporated by the SCRS in the upcoming 2012 BFT 
stock assessments, as appropriate. Until that time, however, the SCRS 
assessments remain the best scientific information available.
    NMFS continues to rely upon the 2010 SCRS stock assessment as the 
best scientific information available. That stock assessment was 
subject to rigorous analysis and review by a panel of experts from 
participating ICCAT countries. A new stock assessment is expected in 
fall 2012, along with a new ICCAT recommendation on total allowable 
catch and country quotas and other bluefin conservation and management 
measures. The newly available MAST that addresses mixing of eastern and 
western Atlantic bluefin tuna stocks will be reviewed and incorporated 
as appropriate in that upcoming assessment process. Thus, while the 
MAST model is available for review, it has not been subject to the 
rigorous analysis and review by ICCAT's panel of experts. Therefore, 
NMFS' actions in implementing the ICCAT quota consistent with the ICCAT 
Rebuilding Program and the 2010 stock assessment are consistent with 
the Magnuson-Stevens Act's National Standard 2 to utilize the best 
available scientific information.
    The 2010 SCRS stock assessment analyzed the status of the western 
Atlantic bluefin tuna stock using two recruitment scenarios: a ``high 
recruitment'' and ``low recruitment'' scenario. SCRS concluded that 
there was no basis for choosing one scenario over the other (i.e., both 
scenarios are equally likely). Under the low recruitment scenario, the 
stock is considered rebuilt, overfishing is not occurring, and a total 
allowable catch of up to 2,500 metric tons would maintain the stock 
biomass above the level that can support MSY. Under the high 
recruitment scenario, the stock remains overfished with overfishing 
occurring and will not rebuild by the end of 2018 (under the 20-year 
rebuilding period that began in 1999) even with no catch. The SCRS 
indicated that a total allowable catch of 1,800 metric tons would allow 
the stock to grow under both recruitment scenarios. ICCAT adopted a 
total allowable catch of 1,750 mt, which was a reduction of 50 mt from 
the TAC for 2011.
    The quotas as implemented remain consistent with the ICCAT 
Rebuilding Program that was adopted domestically in the rule 
implementing the 1999 FMP and that was continued in regulations under 
the 2006 Consolidated HMS FMP. The main objective of the ICCAT 
Rebuilding Program is to maintain western Atlantic bluefin tuna 
populations at levels that will support MSY. Therefore, NMFS' actions 
are consistent with National Standard 1 of the Magnuson-Stevens Act, 
which states that conservation and management measures shall prevent 
overfishing while achieving, on a continuing basis, the optimum yield 
(OY) for the fishery.

Carrying Underharvest Forward

    NMFS maintains that the carryforward of underhavest is consistent 
with ICCAT Recommendation 10-03, ATCA, and the Magnuson-Stevens Act. 
Beginning with the 2011 fishing year, ICCAT Recommendation 10-03 limits 
the amount of underharvest that may be carried forward from one year to 
the next to no more than 10 percent of a country's quota. This amount 
was reduced from the 50-percent limit in the 2006 ICCAT western 
Atlantic BFT recommendation (06-06), which was in effect for 2007 
through 2010. Prior to 2007, a country could carry forward the full 
amount of its underharvest to the following year. The United States has 
supported ICCAT's efforts to control quota stockpiling as part of 
bluefin tuna management recommendations, such as establishing limits on 
the amount of unused quota that can be carried from one year to the 
next, for fairness and conservation reasons.
    Under ATCA, NMFS is authorized to promulgate such regulations as 
may be necessary and appropriate to carry out ICCAT recommendations. 
Under the Magnuson-Stevens Act (16 U.S.C. 1854(g)(1)(D)), NMFS is 
required to provide U.S. fishing vessels with ``a reasonable 
opportunity to harvest'' any allocation or quota to which the United 
States has agreed under ICCAT. To meet the multiple goals for the BFT 
fisheries, NMFS considers the importance of all of the national 
standards when making fishery management decisions, including those 
intended to provide reasonable fishing opportunities to a wide range of 
users and gear types, coastwide, throughout the calendar year.


    The NMFS Assistant Administrator has determined that this final 
rule is consistent with the Magnuson-Stevens Act, ATCA, and other 
applicable law, and is necessary to achieve domestic management 
objectives under the Consolidated HMS FMP.
    This final rule is exempt from the procedures of E.O. 12866 because 
this action contains no implementing regulations.
    The Chief Council for Regulation of the Department of Commerce 
certified to the Chief Council for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here.

[[Page 44168]]

No comments were received regarding this certification. As a result, a 
regulatory flexibility analysis was not required and none was prepared.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, NMFS has prepared a brochure summarizing 
fishery information and regulations for Atlantic tuna fisheries for 
2012. This brochure also serves as the small entity compliance guide. 
Copies of the compliance guide are available from NMFS (see ADDRESSES).

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

    Dated: July 24, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2012-18404 Filed 7-26-12; 8:45 am]