02-29509. Atlantic Highly Migratory Species; Quotas and Fishing Areas; Trade Monitoring

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to amend the regulations governing the Atlantic swordfish fishery to implement recommendations adopted at the 2000 meeting of the International Commission for the Conservation of Atlantic Tunas (ICCAT). To facilitate a future 400 metric ton (mt), one-time quota transfer to Japan and to amend the procedures by which any reserve quota will be appropriated to other fishing categories, NMFS establishes a reserve quota for North Atlantic swordfish. This final rule also maintains the status quo South Atlantic swordfish, North Atlantic albacore, and South Atlantic albacore quotas for 2001; and prohibits imports of Atlantic bigeye tuna harvested by certain countries. NMFS also reinstates regulations inadvertently removed during regulatory consolidation that would prohibit persons and vessels subject to the jurisdiction of the United States from possessing fish taken in violation of ICCAT recommendations or from violating another country's fisheries regulations pertaining to species managed by ICCAT. Finally, NMFS corrects existing trade restrictions to facilitate the enforcement of the swordfish dead discard allowance and to better monitor the importation of swordfish from designated countries. The intent of these actions is to improve the conservation of Atlantic highly migratory species (HMS) and to improve management of the fisheries targeting these species, while allowing harvest and trade consistent with recommendations of ICCAT.

DATES:

All provisions of this final rule are effective December 20, 2002.

ADDRESSES:

Copies of the Environmental Assessment/Regulatory Impact Review supporting this action may be obtained from Tyson Kade, Highly Migratory Species Management Division, F/SF1, NMFS, 1315 East-West Highway, Silver Spring, MD 20910 or on the Web site at www.nmfs.noaa.gov/​sfa/​hmspg.html.

FOR FURTHER INFORMATION CONTACT:

Tyson Kade, by phone: [phone]; by fax: [phone].

SUPPLEMENTARY INFORMATION:

The U.S. Atlantic swordfish fishery and the tuna fisheries are managed under the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP) and regulations at 50 CFR part 635 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. and the Atlantic Tunas Convention Act (ATCA), 16 U.S.C. 971 et seq. Regulations issued under the authority of ATCA carry out the recommendations of ICCAT. The November 15, 2001, proposed rule (66 FR 57409) contains the background information for these promulgated measures and that information is not repeated here.

The 2000 ICCAT recommendation relating to the Atlantic bigeye tuna import prohibitions for Belize, Cambodia, Equatorial Guinea, and St. Vincent and the Grenadines is implemented herein. The recommendation indicates that the import prohibition on Atlantic bigeye tuna and its products in any form from Honduras shall take effect on January 1, 2002, unless ICCAT decided otherwise at its 2001 meeting. In 2001, ICCAT did not come to consensus to not impose the import prohibitions scheduled to go in effect in January 2002. There was no decision concerning whether Honduras had brought its fishing practices into conformity with ICCAT conservation and management measures and whether trade restrictions on Honduras should be removed. At the 2002 ICCAT meeting, it was recommended that the ban on imports of bigeye tuna from Honduras be lifted. Pending a review of the 2002 ICCAT recommendations and an assessment of the need for further rulemaking, NOAA Fisheries is not finalizing the trade sanctions with regards to Honduras that had been included in the proposed rule.

Comments and Responses

NMFS held three public hearings in November and December 2001 in Fort Lauderdale, FL; Fairhaven, MA; and Barnegat Light, NJ. Comments were received from fishery participants and other members of the public regarding the proposed regulations. In addition, two written comments were submitted to NMFS during the 45-day comment period. The comments are summarized here together with responses.

Reserve Quota

Comment 1: One commenter supports the 400-mt quota transfer as a one-time transfer from the Incidental category to a reserve quota as a short-term solution for the United States to retain its unharvested quota under U.S. authority. Several commenters opposed the establishment of a reserve for under-harvested quota. One commenter was disappointed that the quota to fill the new reserve would be unused directed fishery quota instead of incidental quota which was agreed to by industry at the 2000 ICCAT meeting.

Response: NMFS will carry over unused directed and incidental quota as is currently authorized in the regulations, except if a reserve quota is needed for a specific reason. Recently, NMFS carried over unused 1999 directed and incidental quota and allocated it to the incidental quota for the 2001 fishing year. Because the directed fishery is not harvesting its allocated quota, it will not affect fishery participants to fill the reserve quota with unused directed quota from the past.

Comment 2: We should not transfer quota free of charge for use by other ICCAT countries. We should sell them quota, as is currently being done elsewhere.

Response: As part of its allocation criteria, ICCAT prohibits participating countries from trading or selling their quota allocation. Goodwill transfers such as this one may result in increased research and cooperation with respect to all ICCAT-managed species. Further, the environmental benefits are substantial because they facilitate maintaining compliance with the ICCAT rebuilding plan.

Comment 3: The regulations need to clarify if establishing a reserve quota category is intended to represent a one-time quota transfer or if the reserve category would be replenished in the future by unused quota from other categories (e.g, unused incidental quota).

Response: The reserve category is established permanently and could, but would not necessarily, be replenished in the future. This rule does not place a standard amount of quota into that category annually.

Comment 4: Underharvests in the incidental catch quota category should be transferred to the directed fishery quota.

Response: NMFS will consider the need for underharvests of the incidental catch quota to be allocated to the directed fishery following each fishing year. Because the directed fishery is currently not catching its quota allocation, transferring unused quota to that category may only serve to increase the amount of quota left unharvested. By transferring unharvested quota to the reserve quota category, NMFS could apply the unused quota to the incidental catch or directed catch categories as necessary or for other purposes consistent with ICCAT recommendations and objectives of the HMS FMP.

South Atlantic Swordfish

Comment 5: NMFS should interpret ICCAT's recommendations in a manner similar to the way other countries implement those recommendations. If underharvests are being carried over by other countries, NMFS should also utilize such a process to benefit U.S. fishermen.

Response: ICCAT authorizes quota to be carried over for North Atlantic swordfish, but fails to mention any authorization with respect to carryover of South Atlantic swordfish. NMFS does not believe this to be an oversight and therefore interprets the recommendation as stated: no carry over of unused South Atlantic swordfish quota.

Comment 6: NMFS should clarify that U.S. fishermen may land their catch in foreign ports and that these landings will be counted against the U.S. quota.

Response: As required by ATCA, U.S. fishermen on U.S. vessels that offload in foreign ports will have their landings count against the U.S. quota. NMFS adds that fishermen, regardless of port of offloading must complete all logbooks within 48 hours of completing that day's activities and, for a 1-day trip, before offloading. The owner or operator of the vessel must submit the logbooks to NMFS within 7 days of offloading, 50 CFR 635.5(a)(1). Further, NMFS reminds fishermen that all swordfish, sharks, and tunas must be sold to a U.S.-permitted dealer, 50 CFR 635.31(d)(1), who is also required to report purchases from U.S. vessels on a regular basis, 50 CFR 635.5(b)(1).

Authorized Fishing Areas

Comment 7: NMFS should clarify that vessels fishing under charter/contract for another nation's quota must adhere to the contract nation's regulations.

Response: U.S.-flagged vessels must comply with all U.S. regulations wherever they fish. Vessels under contract may apply for an exempted fishing permit if they provide NMFS with information regarding specific regulations from which they would like to be exempt. NMFS will consider submitted information and issue exempted fishing permits on a case-by-case basis. NMFS cannot exempt U.S. vessels from regulations which may be inconsistent with U.S. fishery management goals.

Comment 8: One commenter strongly opposes the measure to authorize fishing areas at this time. There is concern that this action is not recommended by ICCAT.

Response: This regulation serves to clarify the existing regulations concerning U.S. vessels targeting eastern stock bluefin tuna. In the proposed rule, NOAA Fisheries proposed to prohibit retention of bluefin tuna caught in the east Atlantic Ocean because the United States has not been allocated quota for bluefin tuna in that area. However, the United States has been allocated quota for North Atlantic swordfish and bluefin tuna are caught incidentally to swordfish fishing. A retention prohibition for bluefin tuna from the east Atlantic Ocean would likely result in increased dead discards of bluefin tuna caught by U.S. vessels fishing for North Atlantic swordfish, inconsistent with HMS FMP objectives. Accordingly, NOAA Fisheries has modified the final rule to clarify allowable fishing areas for highly migratory species (HMS) fisheries by prohibiting bluefin tuna fishing in the Mediterranean Sea by U.S. vessels, consistent with the ICCAT agreement to prevent transfer of fishing effort for bluefin tuna from the west Atlantic to the east Atlantic. NOAA Fisheries will count all bluefin tuna caught incidentally to swordfish fishing in the east Atlantic against the west Atlantic U.S. bluefin tuna quota to ensure that those catches are monitored and appropriately accounted for. Furthermore, bycatch in the east Atlantic bluefin tuna fishery may be discussed at ICCAT in 2002.

Comment 9: NMFS should alter the method by which landings and discards of bluefin tuna are submitted to ICCAT. These data should accurately report landings of east Atlantic bluefin tuna to ICCAT which would reflect historical participation in the fishery. This would allow for the United States to enter into quota negotiations.

Response: NMFS intends to evaluate the catch locations of bluefin tuna landings in order to revisit the procedure by which these data are submitted to ICCAT.

Comment 10: NMFS needs to report U.S. historic catches of eastern bluefin, bigeye, yellowfin and albacore tunas and sharks to ICCAT. Reporting forms need to be revised to specify eastern versus western bluefin tuna and to include more space for recording latitude and longitude.

Response: NMFS will examine the reporting forms and suggest alternatives as deemed necessary.

Trade Restrictions/Trade Documentation Programs

Comment 11: NMFS should extend the documentation program to include yellowfin tuna and should unilaterally prohibit the importation of HMS that is non-compliant with ICCAT recommendations.

Response: NMFS would propose extending statistical documentation requirements to bigeye tuna, yellowfin tuna, and swordfish if ICCAT recommends such a program. In 2001, ICCAT issued a recommendation requiring the implementation of the bigeye tuna statistical document program and NMFS is currently working on implementing it.

Other Issues

Comment 12: No action should be taken to implement the temporary U.S. share allocated by ICCAT for North Atlantic albacore.

Response: NMFS agrees and is not changing the regulations regarding this topic.

Changes From the Proposed Rule

This final rule contains several changes from the November 15, 2001, proposed rule (66 FR 57409) regarding the authorized fishing areas. To discourage unauthorized fishing, while trying to minimize dead discards, the proposed prohibition on the retention of bluefin tuna from the east Atlantic Ocean has been modified to prohibit the retention of bluefin tuna from the Mediterranean Sea. This modification is consistent with ICCAT agreements to prevent transfer of fishing effort for bluefin tuna from the west Atlantic to the east Atlantic, and vice versa, and is consistent with HMS FMP objectives to reduce dead discards of bluefin tuna. In addition, based on the 2002 ICCAT meeting, ICCAT recommended that the ban on imports of bigeye tuna from Honduras be lifted. Pending a review of the 2002 ICCAT recommendations and an assessment of the need for further rulemaking, NOAA Fisheries is not finalizing the trade sanctions with regards to Honduras that had been included in the proposed rule. The regulatory text of the final rule has been modified to reflect this decision. Other minor editorial changes to the regulatory text were also made to ensure consistency with existing regulations.

Classification

This final rule is published under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq., and ATCA, 16 U.S.C. 971 et seq. The Assistant Administrator for Fisheries, NOAA, has determined that the regulations contained in this final rule are necessary to implement the recommendations of ICCAT and to manage the domestic Atlantic HMS fisheries. The objective of this final rule is to improve conservation and management of Atlantic swordfish and tunas. Under 5 U.S.C. 553(d), the regulations promulgated by this final rule will enter into effect not less than 30 days after its publication date.

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

On September 7, 2000, NMFS reinitiated formal consultation for all HMS commercial fisheries under section 7 of the Endangered Species Act. A new Biological Opinion (BiOp) was issued on June 14, 2001, which found that the continued existence of the HMS pelagic longline fishery jeopardizes the continued existence of loggerhead and leatherback sea turtles. On July 9, 2002, NMFS promulgated a final rule (67 FR 45393) that implemented the measures required by the BiOp for the pelagic and bottom longline and shark gillnet fisheries. These regulations are necessary to alleviate the jeopardy situation for HMS fisheries. No irreversible or irretrievable commitments of resources are expected from this final action as the measures implemented by this final rule are not expected to alter fishery interactions with endangered species.

NMFS has determined that these regulations will be implemented in a manner consistent to the maximum extent practicable with the enforceable policies of those coastal states in the Atlantic, Gulf of Mexico, and Caribbean that have approved coastal zone management programs. All of the states that replied to the letter regarding compliance of the proposed rule with the Coastal Zone Management Act found NMFS' proposed actions to be consistent with their coastal zone management programs. NMFS presumes that the remaining states that did not respond also concur.

NMFS has prepared a regulatory impact review that examines the impacts of the selected alternatives, discussed previously in this rulemaking. The preparation of an initial regulatory flexibility analysis was not required as the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Association that this rule would not have a significant economic impact on a substantial number of small entities. During the proposed rule stage of this rulemaking, NMFS received no comments regarding the economic impact of this rule. As a result a Final Regulatory Flexibility Analysis was not prepared. The commercial fishery is composed of fishermen who hold a swordfish directed, incidental, or handgear permit and the related industries including processors, bait houses, and equipment suppliers, all of which NMFS considers to be small entities. In October 2001, there were approximately 208 fishermen with a directed swordfish limited access permit, 112 fishermen with an incidental swordfish limited access permit, and 100 fishermen with a handgear limited access permit for swordfish. The formation of a reserve quota category for the North Atlantic swordfish fishery will not have any impact on the amount of fish that can be harvested by U.S. swordfish fishermen. When NMFS makes the one-time transfer of 400 mt (300.8 mt dw) of previously unused swordfish quota to this category, it is not expected to have an impact on U.S. fishermen considering the amounts of recent quota underages, the impacts of recent management actions, and the recent levels of effort present in this fishery. The 400 mt (300.8 mt dw) of swordfish would have a value of $2.3 million if it was caught by U.S. fishermen; however, the quota has no value to fishermen until the swordfish are landed and sold. As previously mentioned, it is unlikely given the current level of effort that the amount to be transferred will be caught now or in the near future by U.S. fishermen. Thus, the current economic impact of establishing a reserve quota category is negligible. The other regulations promulgated by this rule to maintain existing quotas, reinstate or clarify previous regulations, and improve trade monitoring also will have no significant impacts on U.S. fishermen.

List of Subjects in 50 CFR Part 635

• Fisheries
• Fishing
• Management
• Reporting and recordkeeping requirements
• Treaties

Dated: November 15, 2002

Rebecca J. Lent,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 635 is amended as follows:

PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES

1. The authority citation for part 635 continues to read as follows:

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

2. A new § 635.25 is added to read as follows:

§ 635.25

Fishing areas.

(a) General. Persons on board fishing vessels subject to the jurisdiction of the United States are authorized to fish for, catch, retain, or land species governed by an international catch sharing agreement implemented under this part only in or from those management areas for which the United States has received an allocation.

(b) Exemptions. Persons and vessels subject to the jurisdiction of the United States intending to fish for regulated species in fishing areas not otherwise authorized under this part, whether for the purposes of scientific research or commercial fishing under a chartering arrangement, must have a permit from NMFS issued under § 635.32.

(c) Atlantic bluefin tuna. No person aboard a U.S. fishing vessel shall fish for bluefin tuna in, or possess on board that fishing vessel a bluefin tuna taken from, the Mediterranean Sea.

3. In § 635.27, paragraph (c) is revised to read as follows:

§ 635.27

Quotas.

* * * * *

(c) Swordfish. (1) Categories. Consistent with ICCAT recommendations, the fishing year's total amount of swordfish that may be caught, retained, possessed, or landed by persons and vessels subject to U.S. jurisdiction is divided into quotas for the North Atlantic swordfish stock and the South Atlantic swordfish stock. The quota for the North Atlantic swordfish stock is further divided into equal semi-annual directed fishery quotas, an annual incidental catch quota for fishermen targeting other species and, as needed, a reserve category. In addition, a dead discard allowance is established for the North Atlantic swordfish stock.

(i) North Atlantic swordfish. (A) A swordfish from the North Atlantic swordfish stock caught prior to the directed fishery closure by a vessel for which a directed fishery permit or a handgear permit for swordfish has been issued is counted against the directed fishery quota. The annual directed fishery quota for the North Atlantic swordfish stock is 1,919 mt dw for each fishing year beginning June 1, 2000. The annual directed fishery quota is subdivided into two equal semiannual quotas of 959.5 mt dw, one for June 1 through November 30, and the other for

December 1 through May 31 of the following year.

(B) A swordfish from the North Atlantic swordfish stock landed by a vessel for which an incidental catch permit for swordfish has been issued, landed by fishermen without swordfish permits consequent to recreational fishing, or caught after the effective date of a closure of the directed fishery from a vessel for which a directed fishery permit or a handgear permit for swordfish has been issued is counted against the incidental catch quota. The annual incidental catch quota for the North Atlantic swordfish stock is 300 mt dw.

(C) The dead discard allowance for the North Atlantic swordfish stock is: 320 mt ww for the fishing year beginning June 1, 2000; 240 mt ww for the fishing year beginning June 1, 2001; and 160 mt ww for the fishing year beginning June 1, 2002. All swordfish discarded dead from U.S. fishing vessels, regardless of whether such vessels are permitted under this part, shall be counted against the allowance.

(D) A portion of the total allowable catch of North Atlantic swordfish may be held in reserve for inseason adjustments to fishing categories, to compensate for projected or actual overharvest in any category, for fishery independent research, or for other purposes consistent with management objectives.

(ii) South Atlantic swordfish. The annual directed fishery quota for the South Atlantic swordfish stock is 289 mt dw. The entire quota for the South Atlantic swordfish stock is reserved for pelagic longline vessels for which a directed fishery permit for swordfish has been issued; retention of swordfish caught incidental to other fishing activities or with other fishing gear is prohibited in the Atlantic Ocean south of 5° N. lat.

(2) Inseason adjustments. (i) NMFS may adjust the December 1 through May 31 semiannual directed fishery quota or, as applicable, the reserve category, to reflect actual directed fishery and incidental fishing category catches during the June 1 through November 30 semiannual period.

(ii) If NMFS determines that the annual incidental catch quota will not be taken before the end of the fishing year, the excess quota may be allocated to the directed fishery quota or to the reserve.

(iii) If NMFS determines that it is necessary to close the directed swordfish fishery prior to the scheduled end of a semi-annual fishing season, any estimated overharvest or underharvest of the directed fishery quota for that semi-annual season will be used to adjust the annual incidental catch quota or the reserve as necessary to maintain landings and discards within the required annual limits.

(iv) NMFS will file with the Office of the Federal Register for publication notification of any inseason swordfish quota adjustment and its apportionment to fishing categories or to the reserve made under this paragraph (c)(2) of this section.

(3) Annual adjustments. (i) Except for the carryover provisions of paragraphs (c)(3)(ii) and (iii) of this section, NMFS will file with the Office of the Federal Register for publication notification of any adjustment to the annual quota necessary to meet the objectives of the Fishery Management Plan for Atlantic Tunas, Swordfish and Sharks. NMFS will provide at least 30 days opportunity for public comment.

(ii) If consistent with applicable ICCAT recommendations, total landings above or below the specific North Atlantic or South Atlantic swordfish annual quota shall be subtracted from, or added to, the following year's quota for that area. As necessary to meet management objectives, such carryover adjustments may be apportioned to fishing categories and/or to the reserve. Any adjustments to the 12-month directed fishery quota will be apportioned equally between the two semiannual fishing seasons. NMFS will file with the Office of the Federal Register for publication notification of any adjustment or apportionment made under this paragraph (c)(3)(ii).

(iii) The dressed weight equivalent of the amount by which dead discards exceed the allowance specified at paragraph (c)(1)(i)(C) of this section shall be subtracted from the landings quota in the following fishing year or from the reserve category. NMFS will file with the Office of the Federal Register for publication notification of any adjustment made under this paragraph (c)(3)(iii).

4. Section 635.45 is revised to read as follows:

§ 635.45

Products denied entry.

(a) All shipments of Atlantic swordfish, or its products, in any form, harvested by a vessel under the jurisdiction of Belize or Honduras will be denied entry into the United States.

(b) All shipments of Atlantic bluefin tuna, or its products, in any form, harvested by a vessel under the jurisdiction of Belize, Honduras, or Equatorial Guinea will be denied entry into the United States.

(c) All shipments of Atlantic bigeye tuna, or its products, in any form, harvested by a vessel under the jurisdiction of Belize, Cambodia, Equatorial Guinea, or St. Vincent and the Grenadines will be denied entry into the United States. It is a rebuttable presumption that any shipment containing bigeye tuna or its products offered for entry or imported into the United States has been harvested by a vessel or vessels of the exporting nation.

5. Section 635.47 is revised to read as follows:

§ 635.47

Ports of entry.

NMFS shall monitor imported shipments of bluefin tuna, bigeye tuna, and swordfish into the United States. If NMFS determines that the diversity of handling practices at certain ports at which any of these species is being imported into the United States allows for circumvention of the bluefin tuna statistical document, swordfish Certificate of Eligibility requirements, or trade restrictions for these species or for Atlantic bigeye tuna, NMFS may designate, after consultation with the U.S. Customs Service, those ports at which these species may be lawfully imported into the United States. NMFS shall announce the names of such designated ports and the effective dates of entry restrictions through publication of a notice in the Federal Register.

6. In § 635.71,paragraphs (a)(24) and (a)(29) are revised, and a new paragraph (a)(38) is added, to read as follows:

§ 635.71

Prohibitions.

* * * * *

(a) * * *

(24) Import, or attempt to import, any fish or fish products regulated under this part in a manner contrary to any import requirements or import restrictions specified at §§ 635.40, 635.41, 635.45, and 635.46, or at other than an authorized port of entry designated by NMFS under § 635.47.

* * * * *

(29) Land, transship, ship, transport, purchase, sell, offer for sale, import, export, or have in custody, possession, or control:

(i) Any fish that the person knows, or should have known, was taken, retained, possessed, or landed contrary to this part, without regard to the citizenship of the person or registry of the fishing vessel that harvested the fish.

(ii) Any fish of a species regulated pursuant to a recommendation of ICCAT that was harvested, retained, or possessed in a manner contrary to the regulations of another country.

* * * * *

(38) Fish for, or possess on board a fishing vessel, species regulated under this part in unauthorized fishing areas as specified in § 635.25.

* * * * *