[Federal Register Volume 77, Number 170 (Friday, August 31, 2012)]
[Rules and Regulations]
[Pages 53150-53152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-21579]



National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 120306154-2241-02]
RIN 0648-XC162

Atlantic Highly Migratory Species; Atlantic Bluefin Tuna 

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

ACTION: Temporary rule; inseason General category retention limit 


SUMMARY: NMFS is adjusting the Atlantic tunas General category daily 
Atlantic bluefin tuna (BFT) retention limit from one to three large 
medium or giant BFT for the September, October, November, and December 
time periods of the 2012 fishing year, based on consideration of the 
regulatory determination criteria regarding inseason adjustments. This 
action applies to Atlantic tunas General category permitted vessels and 
to Highly Migratory Species (HMS) Charter/Headboat category permitted 
vessels when fishing commercially for BFT.

DATES: Effective September 1, 2012, through December 31, 2012.

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

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 Atlantic HMS 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) established a 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. Through a November 2011 final rule 
implementing adjustments to the BFT General and Harpoon category 
regulations (76 FR 74003, November 30, 2011), the January BFT fishery 
may remain open until the January subquota is reached or March 31 
(whichever happens first). 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 January. 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.
    Unless changed, the General category daily retention limit starting 
on September 1 would be the default retention limit of one large medium 
or giant BFT (measuring 73 inches (185 cm) curved fork length (CFL) or 
greater) 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.

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 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), which include: The 
usefulness of information obtained from catches in the particular 
category for biological sampling and monitoring of the status of the 
stock; 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 BFT distribution, 
abundance, or migration patterns; 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 review of dealer 
reports, daily landing trends, and the availability of the BFT on the 
fishing grounds. Unused General category quota rolls forward within a 
fishing year to the subsequent subquota time period, e.g., from the 
June through August period to the September period, and so on.
    For the 2011 fishing year, NMFS 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 the January subquota period (75 FR 79309, 
December 20,

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2010); three large medium or giant BFT for June through November 5 (76 
FR 32086, June 3, 2011; and 76 FR 52886, August 24, 2011); and two 
large medium or giant BFT for November 6 through December 31, 2011 (76 
FR 69137, November 8, 2011). The November 2011 adjustment was in 
conjunction with an inseason quota transfer of 50 mt from the Reserve 
category to the General category.
    NMFS adjusted the limit for the 2012 January subquota period from 
the default level of one large medium or giant BFT to two large medium 
or giant BFT (76 FR 76900, December 9, 2011). That retention limit was 
effective from January 1, 2012, until January 22, 2012, when NMFS 
closed the fishery because the January subquota had been met (77 FR 
3637, January 25, 2012). For the June through August 2012 period, NMFS 
adjusted the limit to three large medium or giant BFT (77 FR 28496, May 
15, 2012).
    NMFS has considered the criteria at Sec.  635.27(a)(8) and their 
applicability to the General category BFT retention limit for the 
September through December 2012 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 
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.'' Commercial-sized BFT migrated to the fishing grounds off 
New England by early June and are actively being landed. Lastly, 
despite the three-fish daily retention limit, 2012 General category 
landings remain low.
    As of August 14, 2012, 137.3 mt of the 2012 General category quota 
of 435.1 mt have been landed, and landings rates remain at 
approximately 1 mt per day. Given the rollover of unused quota from the 
one time period to the next, current catch rates, and the fact that the 
daily retention limit will automatically revert to one large medium or 
giant BFT per vessel per day on September 1, 2012, absent agency 
action, NMFS anticipates the full 2012 General category quota may not 
be harvested. However, based on the pattern exhibited over the last few 
years, NMFS anticipates an increase in both landings of BFT (in number) 
and average fish weight for the remainder of the year, relative to the 
same period of 2011, such that a continued three-fish limit may result 
in higher landings than in previous years.
    A lower retention limit could result in unused quota being added to 
the later portion of the General category season (i.e., rolling forward 
to the subsequent subquota time period). Increasing the daily retention 
limit from the default may mitigate rolling an excessive amount of 
unused quota from one time period to the next. Increasing the daily 
limit from three to four or five fish, however, may risk exceeding the 
available General category quota. As referred to above, by late October 
2011, NMFS determined that the General category had reached 95 percent 
of its 2011 quota of 435.1 mt under the three-fish limit that was in 
effect. In order to extend fishing opportunities and allow continued 
collection of biological samples from General category landings 
throughout the remainder of 2011, NMFS transferred 50 mt of available 
quota from the Reserve to the General category and reduced the daily 
retention limit from three to two fish in November 2011 (76 FR 69137, 
November 8, 2011).
    Based on these considerations, NMFS has determined that a three-
fish General category retention limit is warranted. 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 to three large medium or giant BFT per vessel 
per day/trip, effective September 1, 2012, through December 31, 2012.
    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 three 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 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 www.hmspermits.gov, for updates on 
quota monitoring and retention limit adjustments.


    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 
these retention limits 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

[[Page 53152]]

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 
September 1, 2012, 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 not preclude 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 these 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 is exempt 
from review under Executive Order 12866.

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

    Dated: August 28, 2012.
Lindsay Fullenkamp,
Acting Deputy Director, Office of Sustainable Fisheries, National 
Marine Fisheries Service.
[FR Doc. 2012-21579 Filed 8-28-12; 4:15 pm]