E7-19421. Atlantic Highly Migratory Species; 2008 Atlantic Bluefin Tuna Quota Specifications and Effort Controls

AGENCY:

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

ACTION:

Proposed rule; request for comments; notice of public hearings.

SUMMARY:

NMFS proposes initial 2008 fishing year specifications for the Atlantic bluefin tuna (BFT) fishery to set BFT quotas for each of the established domestic fishing categories and to set effort controls for the General category and Angling category. This action is necessary to implement recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT), as required by the Atlantic Tunas Convention Act (ATCA), and to achieve domestic management objectives under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). NMFS solicits written comments and will hold public hearings in October 2007 to receive oral comments on these proposed actions.

DATES:

Written comments must be received on or before November 1, 2007.

The public hearing dates are:

1. October 3, 2007, 7 p.m. to 9 p.m., Silver Spring, MD.

2. October 23, 2007, 3 p.m. to 5 p.m., Gloucester, MA.

ADDRESSES:

You may submit comments, identified by “0648-AV58”, by any one of the following methods:

• Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov
• Fax: [phone], Attn: Sarah McLaughlin
• Mail: Sarah McLaughlin, Highly Migratory Species Management Division, Office of Sustainable Fisheries (F/SF1), NMFS, One Blackburn Dr., Gloucester, MA 01930

Instructions: All comments received are a part of the public record and will generally be posted to Portal http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

NMFS will accept anonymous comments. 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 — NOAA Science Center, 1301 East-West Highway, Silver Spring, MD 20910.

2. Gloucester — NMFS, One Blackburn Drive, Gloucester, MA 01930.

Supporting documents including the 2007 Environmental Assessment, Initial Regulatory Flexibility Analysis, and Regulatory Impact Review are available by sending your request to Sarah McLaughlin at the mailing address specified above.

FOR FURTHER INFORMATION CONTACT:

Sarah McLaughlin, 978-281-9260.

SUPPLEMENTARY INFORMATION:

Atlantic tunas are managed under the dual authority of the Magnuson-Stevens Act and the ATCA. The 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 the ATCA has been delegated from the Secretary to the Assistant Administrator for Fisheries, NOAA (AA).

Background

On May 28, 1998, NMFS published in the Federal Register (64 FR 29090) final regulations, effective July 1, 1999, implementing the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (1999 FMP). 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 consolidates the 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.

The 2008 annual specifications are necessary to implement the 2006 ICCAT quota recommendation, as required by the ATCA, and to achieve domestic management objectives under the Magnuson-Stevens Act. The proposed rule would: (1) establish initial quota specifications consistent with the BFT rebuilding program by adjusting the 2006 ICCAT-recommended quota as necessary for the 2008 fishing year (January 1, 2008 - December 31, 2008); (2) establish General category effort controls, including restricted fishing days (RFDs) and initial retention limits; and (3) establish Angling category retention limits for the 2008 fishing season. This action is published in accordance with the framework procedures set forth in the Consolidated HMS FMP and is supported by the analytical documents prepared for the Consolidated HMS FMP and for the 2007 BFT specifications and effort controls. Copies of these documents are available from NMFS (see ADDRESSES).

2006 ICCAT Recommendation, BFT Underharvests, and Transfers to Other ICCAT Contracting Parties

At its 2006 meeting, ICCAT recommended a western Atlantic BFT Total Allowable Catch (TAC) of 2,100 mt to allow for continued rebuilding of BFT through 2018. The TAC includes dead discards and will be effective through 2008, and thereafter until changed. The following are deducted from the TAC prior to determining the U.S. share percentage: 4 mt for the United Kingdom (in respect of Bermuda), 4 mt for France (in respect of St. Pierre and Miquelon), 25 mt for Mexico (to allow incidental catch in the longline fishery in the Gulf of Mexico), and 15 mt for Canada and 25 mt for the United States (for bycatch related to directed longline fisheries “in the vicinity of the management boundary area,” i.e., the Northeast Distant gear restricted area (NED), which was defined in the 2003 BFT annual specification rulemaking process as the Northeast Distant statistical area (68 FR 56783, October 2, 2003)). The U.S. share of the adjusted TAC is 57.48 percent, or 1,165.12 mt. Accounting for the 25 mt NED set-aside, the total U.S. allocation is 1,190.12 mt.

The 2006 ICCAT recommendation also includes provisions to: (1) limit carryover of underharvest to no more than 50 percent of a contracting party's initial TAC; (2) limit mortality of school BFT to an average of 10 percent of the initial TAC, calculated on a four-year basis; and (3) allow a contracting party with a TAC allocation to make a one-time transfer within a fishing year of up to 15 percent of its TAC allocation to other contracting parties with TAC allocations, consistent with domestic obligations and conservation considerations. Regarding the third provision, the ICCAT recommendation stipulates that the quota transfer may not be used to cover overharvests, and that a contracting party that receives a one-time quota transfer may not retransfer that quota. For the United States, the 15-percent limit on quota transfer equates to 178.5 mt. Consistent with § 635.27(a)(8), NMFS would consider several factors in deciding whether or not the United States would enter into an arrangement with another ICCAT contracting party, including, but not limited to, the amount of quota to be transferred, the projected ability of U.S. vessels to harvest the U.S. TAC before the end of the fishing year, the potential benefits of the transfer to U.S. fishing participants, potential ecological impacts, and the contracting party's ICCAT compliance status. Should NMFS consider a transfer of U.S. quota to another ICCAT contracting party, NMFS would publish a separate action in the Federal Register, which would provide detail of the transaction considered, including information regarding the factors above.

Domestic Allocations and Quotas

The 1999 FMP and its implementing regulations established baseline percentage quota shares for the domestic fishing categories. These percentage shares were based on allocation procedures that NMFS developed over several years. The baseline percentage quota shares established in the 1999 FMP and contained in the Consolidated HMS FMP for fishing years beginning June 1, 1999, and continuing to the present are as follows: General category — 47.1 percent; Harpoon category — 3.9 percent; Purse Seine category — 18.6 percent; Angling category — 19.7 percent; Longline category — 8.1 percent; Trap category — 0.1 percent; and Reserve category — 2.5 percent.

In the final 2007 fishing year BFT specifications (72 FR 33401, June 18, 2007), NMFS modified the baseline landings quota to 1,165.12 mt to implement the 2006 ICCAT recommendation and set the category subquotas per the allocations established in the Consolidated HMS FMP. The baseline quotas are as follows: General category — 548.8 mt; Harpoon category — 45.4 mt; Purse Seine category — 216.7 mt; Angling category — 229.5 mt; Longline category — 94.4 mt; and Trap category — 1.2 mt. An additional 29.1 mt is allocated to the Reserve category for inseason adjustments, scientific research collection, potential overharvest in any category except the Purse Seine category, and potential quota transfers.

The baseline Angling category quota of 229.5 mt is further subdivided as follows: School BFT — 119 mt, with 45.8 mt to the northern area (north of 39°18′ N. latitude), 51.2 mt to the southern area (south of 39°18′ N. latitude), plus 22 mt held in reserve; large school/small medium BFT — 105.2 mt, with 49.6 mt to the northern area and 55.6 mt to the southern area; and large medium/giant BFT — 5.3 mt, with 1.8 mt to the northern area and 3.5 mt to the southern area. The 25-mt NED set-aside quota is in addition to the overall incidental longline quota to be subdivided in accordance with the North/South allocation percentages (i.e., no more than 60 percent to the south of 31° N. latitude). Thus, the baseline Longline category quota of 94.4 mt is subdivided as follows: 37.8 mt to pelagic longline vessels landing BFT north of 31° N. latitude and 56.6 mt to pelagic longline vessels landing BFT south of 31° N. latitude, with 25 mt set-aside for bycatch of BFT related to directed pelagic longline fisheries in the NED. NMFS accounts for landings under this additional quota separately from other landings under the Longline north subcategory.

The baseline landings quota and category subquotas are effective until changed, for instance, as a result of a potential new ICCAT BFT TAC recommendation made at its upcoming 2008 Annual Meeting. Consistent with the Consolidated HMS FMP, NMFS will make underharvest and overharvest adjustments as necessary for the 2008 fishing year.

2008 Quota Specifications

NMFS anticipates that the 2007 fishing year underharvest will be substantial, based on current landings information and communication with BFT fishermen, and given the relatively low BFT harvest rates in recent years. However, the current ICCAT recommendation limits the amount of underharvest the United States may carry over for 2008 to 595.1 mt. In this action, NMFS proposes to carryover 595.1 mt of BFT underharvest from the 2007 fishing year to the 2008 fishing year quota, and distribute that underharvest in such a manner to: (1) Allow for potential transfer of a portion (up to 15 percent) of the 2008 U.S. quota to other ICCAT Contracting Parties and other domestic management objectives, if warranted; (2) ensure that the Longline category has sufficient quota to operate during the 2008 fishing year after the required accounting for BFT dead discards; and (3) provide the non-Longline quota categories a share of the remainder of the underharvest consistent with the allocation scheme established in the Consolidated HMS FMP.

The United States must report dead discard estimates to ICCAT annually and account for this mortality as part of the specification calculation process. Accordingly, NMFS must account for BFT dead discards in setting the 2008 fishing year quota. NMFS proposes to assign a sufficient amount of any quota carryover (53.6 mt) to the Longline category so that after accounting for dead discards, sufficient quota is available to cover anticipated pelagic longline fishery landings during the 2008 fishing year. Providing sufficient landings quota would allow not only a full year fishery but avoid discards that could result if the fishery were closed due to the quota being met while longline vessels are fishing for other species.

The best available preliminary estimate of dead discards for 2006 is 91.3 mt. This estimate is generated via extrapolation of pelagic longline logbook tallies by pooled observer data. Estimates of dead discards from other gear types and fishing sectors that do not use the pelagic longline vessel logbook are unavailable at this time and thus are not included in this calculation. Per the ICCAT recommendation, which specifies a U.S. quota that is inclusive of dead discards, and consistent with the regulations regarding annual quota adjustments at § 635.27(a)(10)(iv), NMFS would deduct the 91.3 mt of estimated dead discards from the amount of quota available for the Longline category for the 2008 fishing year. The best available information indicates that pelagic longline landings and dead discards for 2006 totaled 148 mt. The baseline longline category quota is 94.4 mt. Therefore, NMFS proposes to use 56.7 mt of BFT underharvest to cover the anticipated pelagic longline fishery landings during the 2008 fishing year.

Additionally, NMFS would place 178.5 mt (i.e., 15 percent of 1,190.12 mt) of 2007 fishing year underharvest in the Reserve for potential ICCAT transfer purposes and other domestic management objectives. NMFS proposes to distribute the remainder of the quota carryover (363 mt) to the Angling, General, Harpoon, Purse Seine, and Trap categories consistent with their FMP allocations.

In accordance with the 2006 ICCAT quota recommendation, the Consolidated HMS FMP percentage shares for each of the domestic categories, and regulations regarding annual adjustments at § 635.27(a)(10), NMFS proposes initial quota specifications for the 2008 fishing year as follows: General category — 740.0 mt; Harpoon category — 61.2 mt; Purse Seine category — 292.2 mt; Angling category — 309.5 mt; Longline category — 56.7 mt; and Trap category — 1.6 mt. Additionally, 207.6 mt would be allocated to the Reserve category for inseason adjustments, scientific research collection, potential overharvest in any category except the Purse Seine category, and potential quota transfers.

The proposed General category quota of 740.0 mt would be divided per the time period allocations established in the Consolidated FMP, i.e., 39.2 mt (5.3 percent) for the period beginning January 1, 2008, and ending January 31, 2008, 370.0 mt (50 percent) would be available in the period beginning June 1, 2008, and ending August 31, 2008; 196.1 mt (26.5 percent) would be available in the period beginning September 1, 2008, and ending September 30, 2008; 96.2 mt (13 percent) would be available in the period beginning October 1, 2008, and ending November 30, 2008; and 38.5 mt (5.2 percent) would be available in the period beginning December 1, 2008, and ending December 31, 2008.

As discussed in the Consolidated HMS FMP, NMFS has received public comment expressing concern relating to the rollover of underharvest or overharvest from one subperiod to the next between fishing years. In the Consolidated FMP, NMFS considered three scenarios that could occur regarding disposition of any carryover that accrues during the December subperiod: (1) rollover of any underharvest or overharvest in full to the January subquota; (2) rollover of 5.3 percent of the underharvest or overharvest to the January subquota; and (3) no rollover of any underharvest or overharvest to the January subquota. However, the 2006 ICCAT recommendation to cap the carryover of underharvest from one year to the next and to account for dead discards annually has led to the underharvest allocation approach used in the 2007 fishing year and described above. NMFS intends to publish final specifications in advance of the 2008 fishing year, which would allow General category participants to plan fishing activities based on the adjusted January 2008 subquota.

Based on the above proposed initial specifications and considerations regarding the school BFT fishery, the Angling category quota of 309.5 mt would be further subdivided as follows: School BFT — 119 mt, with 45.8 mt to the northern area (north of 39°18′ N. latitude), 51.2 mt to the southern area (south of 39°18′ N. latitude), plus 22 mt held in reserve; large school/small medium BFT — 183.4 mt, with 86.6 mt to the northern area and 96.8 mt to the southern area; and large medium/giant BFT — 7.1 mt, with 2.4 mt to the northern area and 4.7 mt to the southern area.

The 25-mt NED set-aside quota is in addition to the overall incidental longline quota to be subdivided in accordance with the North/South allocation percentages (i.e., no more than 60 percent to the south of 31° N. latitude). Thus, the proposed Longline category quota of 56.7 mt would be subdivided as follows: 22.7 mt to pelagic longline vessels landing BFT north of 31° N. latitude and 34.0 mt to pelagic longline vessels landing BFT south of 31° N. latitude, with 25 mt set-aside for bycatch of BFT related to directed pelagic longline fisheries in the NED. NMFS would account for landings under this additional quota separately from other landings under the Longline north subcategory.

Adjustments to the 2008 quotas and subquotas will be updated in the final rule. If complete information is not available when the final rule is published, NMFS may need to publish a quota adjustment in 2008.

General Category Effort Controls

In addition to time-period subquotas, NMFS also implements General category RFDs to extend the General category fishing season. The RFDs are designed to address the same issues addressed by time-period subquotas and provide additional fine scale inseason flexibility. For the 2008 fishing year, NMFS proposes a series of solid blocks of RFDs to extend the General category for as long as possible through the end of the 2008 fishing year. Therefore, NMFS proposes that persons aboard vessels permitted in the General category would be prohibited from fishing, including catch-and-release and tag-and-release, for BFT of all sizes on the following days: all Saturdays and Sundays from November 15, 2008, through December 31, 2008, plus November 27 and December 25, 2008, while the fishery is open.

Finally, NMFS proposes to increase the General category retention limit to three BFT (73 inches (185.4 cm) or greater per vessel per day/trip) for the January and June-August subperiods. This action is intended to allow increased opportunities to harvest the General category quota during the period when catch rates have historically been slow, and to avoid accumulation of unused quota. This retention limit would be effective from January 1, 2008, through January 31, 2008 and from June 1, 2008, through August 31, 2008, unless adjusted with an inseason action, if necessary. NMFS may consider further retention limit adjustments after August 31, 2008, depending on several factors, including but not limited to catch rates and availability of quota.

Angling Category Effort Controls

NMFS proposes to increase the Angling category retention limit to one school BFT (27 inches (68.6 cm) to less than 47 inches (119.4 cm)), and two large school/small medium BFT (i.e., two BFT measuring 47 inches (119.4 cm) to less than 73 inches (185.4 cm)) per vessel per day/trip. This limit was set for the 2007 fishing year to be consistent with the 2006 ICCAT recommendation that limits tolerance for school BFT landings to 10 percent of the U.S. TAC, calculated on a four-year average, and to maximize use of the Angling category quota while avoiding overharvest of each of the Angling category subquotas. The action also would provide the same retention limit for both private and charter/headboat vessels. NMFS has received public comment on the 2007 quota and effort control specifications and during the 2007 fishing season that application of the same measures for both sectors works well. NMFS does not have information, from recreational BFT landings estimates or from public comment, that would support a change in the Angling category retention limit for 2008 from the one implemented for the 2007 fishing year.

Classification

NMFS has preliminarily determined that the proposed rule is consistent with the Magnuson-Stevens Act and the Atlantic Tunas Convention Act as well as with the Consolidated HMS FMP and recommendations of the International Commission for the Conservation of Atlantic Tunas.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as follows:

The 2008 annual specifications are necessary to implement the 2006 International Commission for the Conservation of Atlantic Tunas (ICCAT) quota recommendation, as required by the Atlantic Tunas Convention Act, and to achieve domestic management objectives under the Magnuson-Stevens Act. The proposed rule would: (1) Establish initial quota specifications consistent with the BFT rebuilding program by adjusting the 2006 ICCAT-recommended quota as necessary for the 2008 fishing year; (2) establish General category effort controls, including restricted fishing days (RFDs) and initial retention limits; and (3) establish Angling category retention limits for the 2008 fishing season. This action was developed in accordance with the framework procedures set forth in the Consolidated Atlantic Highly Migratory Species Fishery Management Plan (Consolidated HMS FMP), and is supported by the analytical documents prepared for the Consolidated HMS FMP and for the 2007 BFT specifications and effort controls.

On June 18, 2007, the National Marine Fisheries Service (NMFS) published a final rule (72 FR 33401) that modified the baseline BFT landings quota to 1,165.12 mt to implement the 2006 ICCAT recommendation, set the category subquotas per the allocations established in the Consolidated HMS FMP, and set effort controls for the General and Angling categories for the 2007 fishing year (June 1 through December 31, 2007, pursuant to the change in fishing year to a calendar year as of January 2008 per the Consolidated HMS FMP). The final regulatory flexibility analysis (FRFA) prepared for the 2007 BFT specifications and effort controls indicated that there were 9,001 commercial Atlantic tunas or Atlantic HMS permit holders. This constitutes the best available information regarding the universe of permit holders as permits are still being renewed for the 2007 and 2008 fishing years. Because NMFS considers all the commercial Atlantic tunas and HMS permit holders to be small business entities, disproportionality of economic impacts between small and large business entities is not an issue.

This proposed rule would not change the BFT baseline quota and category subquotas, or implement any new management measures not previously considered, and thus NMFS has determined that the impact on small entities affected by the proposed rule will not be significant. The 2006 ICCAT recommendation is in effect until changed, for instance, as a result of a new ICCAT BFT quota recommendation made at its November 2008 Annual Meeting. The domestic BFT baseline quotas and subquotas are codified in the regulations. Each proposed action in this rule is addressed separately below.

Carryover of underharvest: The 2006 ICCAT recommendation limits carryover of BFT underharvest from the 2007 fishing year to the 2008 fishing year quota to 595.1 mt. NMFS proposes to carry over and to distribute 595.1 mt of BFT underharvest via the same method as used for the 2007 fishing year, and consistently with the ICCAT recommendation and with the Consolidated HMS FMP. The adjusted quota for the 2008 fishing year would be 2 percent higher than that for the 2007 fishing year based on the preliminary estimate of the amount of underharvest that NMFS would use to cover anticipated Longline category landings in 2008. Given that the U.S. quota has been underharvested by a substantial amount in the last few years, and is expected to be underharvested this year, this increase is not expected to have a significant impact on individual small entities. The annual specification process that this proposed rule follows, including application of underharvests and overharvests, is described in detail in Chapters 3 and 4 of the Consolidated HMS FMP.

Effort controls: The proposed rule would increase the General category retention limit from the default level of 1 BFT to 3 BFT (73 inches or greater), the maximum allowed under the FMP. This action is the same as implemented for the 2007 fishing year and is intended to allow for maximum utilization of the BFT quota. An examination of landings data indicates that, while the retention limit increase would allow fishermen the flexibility to retain a second or third BFT if encountered, it is likely to have only slightly positive economic impacts on General category participants because success rates of catching a second or third BFT have been very low in recent years.

NMFS currently does not have information that would support a change in the Angling category retention limit for 2008 from the one implemented for the 2007 fishing year. The proposed increase of the Angling category retention limit from the default of 1 fish (school, large school, or small medium BFT) to 3 fish (1 school BFT plus 2 large school or small medium BFT) is expected to provide increased opportunities to for recreational anglers without risking overharvest of the Angling category quota. To the extent that these increased opportunities may result in increased charter/headboat bookings, there may be slightly positive impacts on Charter/Headboat permit holders.

The proposed RFDs are also the same as those implemented for the 2007 fishing year (with adjustments as needed for the 2008 calendar) and are designed to pace the entry of product to the market when landings rates are high. To the extent that RFDs have the potential to improve market prices, particularly for exported BFT, the implementation of RFDs may have slightly positive impacts, if needed, i.e., if not waived upon determination that they will not be needed, for instance if late season fishing rates are low. Regardless, the schedule of proposed RFDs is not expected to have a significant impact on small entities and is not expected to have any relative impact when compared with the 2007 fishing season.

Because the economic impact of the carryover of underharvest and effort controls, to the extent that there are any, is expected to be generally positive, this rule, if adopted, would not have a significant economic impact on a substantial number of small entities.

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 [phone], at least 7 days prior to the meeting.

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

Dated: September 26, 2007.

William T. Hogarth

Assistant Administrator for Fisheries, National Marine Fisheries Service.