06-4693. Atlantic Highly Migratory Species; Atlantic Swordfish Quotas

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS amends the regulations governing the North and South Atlantic swordfish fisheries to modify the North and South Atlantic Swordfish quotas for the 2005 fishing year (Junej 1, 2005, through May 31, 2006) to account for updated landings information from the 2003 and 2004 fishing years. This action is necessary to ensure that current quotas are based on the most recent landings information and account for any underharvest from previous fishing years, consistent with the regulations at 50 CFR part 635. Additionally, this action implements a subsequent recommendation by the International Commission for the Conservation of Atlantic Tuna (ICCAT)(Recommendation 04-02) to extend the 2005 North Atlantic swordfish management measures.

DATES:

Effective June 19, 2006.

ADDRESSES:

For copies of this rule, write to Highly Migratory Species Management Division (F/SF1), 1315 East-West Highway, Silver Spring, MD 20910. Copies are also available on the internet at http://www.nmfs.noaa.gov/​sfa/​hms.

FOR FURTHER INFORMATION CONTACT:

Megan Caldwell, by phone: [phone]; by fax: [phone]; or by email: [e-mail].

SUPPLEMENTARY INFORMATION:

The U.S. Atlantic swordfish fishery is managed under the 1999 Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (FMP). Implementing regulations at 50 CFR part 635 are issued 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. The ATCA authorizes the promulgation of regulations as may be necessary and appropriate to carry out ICCAT recommendations. Details regarding 2005 North and South Atlantic swordfish commercial quotas and the extension of the 2005 North Atlantic swordfish management measures were provided in the proposed rule (71 FR 7499, February 16, 2006) and are not repeated in this final rule.

Response to Comments

Comments on the proposed rule received during the public comment period are summarized below, together with NMFS' responses.

Comment 1: I am opposed to any increase in catch of swordfish due to the status of the North Atlantic swordfish stock.

Response: North Atlantic swordfish is currently managed under an international rebuilding program to rebuild the stock by 2009. As long as the catch levels established by this rebuilding program are not exceeded, the swordfish stock is projected to continue rebuilding and meet the biomass target by 2009. The rebuilding target is based on the biomass needed to produce maximum sustainable yield (Bmsy), which would be 14,340 mt. Atlantic swordfish was last assessed by the Standing Committee on Research and Statistics (SCRS) in 2002. The 2002 North Atlantic swordfish stock assessment results indicated that the biomass had improved due to strong recruitment since 1997 and a reduction in catch. The biomass had improved such that it was estimated to be at 94 percent of Bmsy. The biomass was projected to continue progressing towards MSY; therefore, the SCRS recommended an increased total allowable catch (TAC) for 2003-2005.

This action does not increase the annual base quota recommended by ICCAT, rather it extends that base quota until a new recommendation for the U.S. quota is available. This action also provides for the use of unused quota from the previous fishing year. The overall North and South Atlantic swordfish TAC has not been exceeded during the rebuilding period. In fact, the U.S. catch continues to be under the allowable level for Atlantic swordfish under its rebuilding plan. A new stock assessment for Atlantic swordfish is expected to be conducted and reviewed in September 2006.

Comment 2: If the biomass is 94 percent of that needed to produce maximum sustainable yield, why was there a time/area closure for swordfish in the first place?

Response: The North Atlantic swordfish biomass was only 65 percent of MSY when the East Florida Coast (EFC) closure was implemented in 2001. The closure was implemented in part to reduce undersized swordfish mortality, as well as the bycatch of other HMS in the pelagic longline fishery. Management measures were needed to reduce bycatch, in general. Since the EFC closure was implemented, the stock status of North Atlantic swordfish has improved, but has not yet been rebuilt. The 2006 North Atlantic swordfish stock assessment will have the most updated information on the current status of this stock. Because the EFC time/area closure was implemented for several stocks, including swordfish, NMFS will consider the most current stock status information for all HMS and bycatch species, the impact to the fishery, as well as other factors, when examining the impact and need for a time/area closure.

Comment 3: Has the average harvested swordfish weight declined so dramatically that it is below the typical weight for a swordfish of reproductive age? It seems rigorous quotas are needed, not just matching catches from the previous year or two to be completely rebuilt.

Response: While the average weight of the U.S. landings are below the average swordfish weight at reproductive age, U.S. swordfish landings do not indicate that the average swordfish weight has declined in recent years. U.S. landings are below the average swordfish weight at reproductive age because the ICCAT minimum size limits are set below this size. Additionally, the 2004 SCRS Report to ICCAT provided an update on the status of the North Atlantic swordfish stock and stated that the number of small fish reported in the catch has not increased despite increased recruitment in recent years.

The U.S. swordfish quota is established by an ICCAT recommendation, which is then implemented domestically according to the ATCA. ICCAT's recommended quotas are based on projections that the stock will rebuild if harvest (based on weight) is maintained at a particular level. In 2002, ICCAT established North Atlantic swordfish baseline quotas for 2003, 2004, and 2005 fishing years and the South Atlantic swordfish baseline quotas for 2003, 2004, 2005, and 2006. The 2004 ICCAT recommendation extended the 2005 North Atlantic swordfish baseline quota because an updated assessment, the basis for a quota recommendations, was not completed prior to the 2006 fishing year.

Swordfish were last assessed in 2002, and will be assessed again later this year. At that time, SCRS will have more information about the current status of this stock, providing the basis for new ICCAT recommendation(s), which may include new TACs.

Comment 4: Swordfish boats should switch to harpoons to reduce bycatch. Harpoons can be more selective allowing the juvenile swordfish to escape and grow to a reproductive age. A new market needs to be developed for harpooned fish. The fish are not in the water for long periods of time so the meat tastes better and stays fresh.

Response: NMFS agrees fishermen can be selective with harpoon gear and that harpoons have low bycatch rates. Harpoons are an authorized gear type for the commercial swordfish fishery.

Comment 5: The status of swordfish has improved dramatically and bycatch limits for incidental permit holders are being exceeded, especially for displaced fishermen targeting tunas with pelagic longline due to the shark closed area off North Carolina. To reduce dead discards and provide U.S. fishermen with more opportunities, NMFS should increase the incidental limit to 15 swordfish.

Response: NMFS did not consider an increase to the incidental catch limits in this action because a more current stock assessment is not yet available to evaluate the potential implications of increasing catch limit on the North Atlantic swordfish stock. The North Atlantic swordfish stock is scheduled to be assessed in September 2006. Upon completion, ICCAT would then review the assessment and consider new recommendations in November 2006. ICCAT's recommendations and the stock assessment will provide the basis for considering changes to the incidental catch limit in a future rulemaking.

Comment 6: The swordfish underharvest is a testament that HMS management is not working. There is something wrong when there is so much quota and the fishery cannot harvest it. With 40 nations at ICCAT and almost every one of them asking for quota, leading by example through conservation does nothing to maintain the U.S. quota.

Response: During the public comment period for the Consolidated HMS FMP, NMFS received many comments stating the need to revitalize the swordfish fishery. As NMFS gathers information regarding catches, catch rates of target species and bycatch species with circle hooks, NMFS will continue to evaluate the need for all current regulations with regard to the effect on harvest rates and will work with fishermen to preserve the U.S. quota share while ensuring consistency with the Magnuson-Stevens Act, ATCA, and other applicable domestic laws. Any action would be in a future rulemaking and will depend, in part, on results from the upcoming swordfish stock assessment and ICCAT recommendation(s).

Changes From the Proposed Rule

There are no changes from the proposed rule (71 FR 7499, February 16, 2006).

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 (AA) for Fisheries, NOAA, has determined that the regulations contained in this rule are consistent with conservation goals of the Magnuson-Stevens Act, ATCA, the 1999 FMP, and other applicable laws.

NMFS prepared an Environmental Assessment (EA) for this final rule, and the AA has concluded that there would be no significant impact on the human environment. The EA presents analyses of the anticipated impacts of these final actions and the alternatives considered. A copy of the EA, and other analytical documents prepared for this rule, are available from NMFS (see ADDRESSES).

This final 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 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. As a result of this certification, a regulatory flexibility analysis was not required and none was prepared. No comments were received that would alter the determination to certify this rule, but two comments were submitted that indirectly relate to economic impacts on the swordfish commercial fishery. These two comments suggest altering the current swordfish management program to enable the fishery to harvest the available quota. Modifying the swordfish management program could have economic impacts to the fishery, but was beyond the scope of measures considered for this action. The purpose of this action was to implement ICCAT recommendations pursuant to ATCA. Once the new assessment is complete and has been reviewed by ICCAT, the Agency may consider modifications to the swordfish management program based on the assessment results and any future recommendations from ICCAT.

NMFS determined that these regulations will be implemented in a manner consistent to the maximum extent practicable with the enforceable policies of those Atlantic, Gulf of Mexico, and Caribbean coastal states that have approved coastal zone management programs. This determination was submitted for review by the responsible state agencies on January 31, 2006, when the proposed rule was filed with the Federal Register, under section 307 of the Coastal Zone Management Act. New Hampshire, Delaware, Virginia, North Carolina, Georgia, Florida, and Mississippi concur with the Agency's consistency determination for this action. The remaining states have provided no response; therefore, consistency has been presumed.

List of Subjects in 50 CFR Part 635

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

Dated: May 15,2006.

John Oliver,

Deputy Assistant Administrator for Operations, 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. In § 635.27, paragraph (c)(1)(i)(A) is revised to read as follows:

§ 635.27

Quotas.

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(c) * * *

(1) * * *

(i) * * *

(A) A swordfish from the North Atlantic 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 fishery quota, not adjusted for over- or underharvests, is 2,937.6 mt dw for each fishing year beginning June 1, 2004. The annual quota is subdivided into two equal semiannual quotas of 1,468.8 mt dw: one for June 1 through November 30, and the other for December 1 through May 31 of the following year.

* * * * *