2011-23269. Atlantic Highly Migratory Species; North and South Atlantic Swordfish Quotas

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This final rule adjusts the North and South Atlantic swordfish quotas for the 2011 fishing year (January 1, 2011, through December 31, 2011) to account for the 2010 underharvest and implement International Commission for the Conservation of Atlantic Tunas (ICCAT) Recommendations 10-02 and 09-03, which maintain the U.S. allocation of the international total allowable catch (TAC) for North and South Atlantic swordfish, respectively. This rule could affect commercial and recreational fishing for swordfish in the Atlantic Ocean, including the Caribbean Sea and Gulf of Mexico, by establishing annual quotas. The effects on commercial and recreational fishermen are expected to be minimal since the annual quota has not changed and recent years' landings have been less than adjusted quotas.

DATES:

Effective on October 12, 2011.

ADDRESSES:

Copies of the supporting documents—including the 2007 Environmental Assessment (EA), Regulatory Impact Review (RIR), Final Regulatory Flexibility Analysis (FRFA), and the 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP)—are available from the HMS Web site at http://www.nmfs.noaa.gov/​sfa/​hms/​.

FOR FURTHER INFORMATION CONTACT:

Jennifer Cudney or Karyl Brewster-Geisz by phone: [phone] or by fax: [phone].

SUPPLEMENTARY INFORMATION:

The U.S. Atlantic swordfish fishery is managed under the 2006 Consolidated HMS 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. ICCAT is an inter-governmental fishery organization responsible for the conservation of tunas, tuna-like species, and other species (including swordfish) targeted in high seas fisheries or incidentally captured in tuna fisheries, in the Atlantic Ocean and its adjacent seas. The ICCAT Commission can, on the basis of scientific evidence provided by the Standing Committee on Research and Statistics (SCRS) and of other relevant information, adopt Recommendations and Resolutions aimed at maintaining the populations of ICCAT species at levels which will permit maximum sustainable catch. As an active member of ICCAT, the United States is mandated to implement the binding recommendations of ICCAT to comply with this international treaty. Under ATCA, Congress granted the authority to promulgate regulations as may be necessary and appropriate to implement binding recommendations of ICCAT. All ICCAT recommendations are available on the ICCAT Web site at http://www.iccat.int/​en/​.

One swordfish measure adopted at the 2010 meeting, and one swordfish measure adopted at the 2009 meeting but carried through the 2011 fishing year, are the subjects of this rulemaking. Recommendation 10-02, “Recommendation by ICCAT for the conservation of north Atlantic swordfish”, establishes quota restrictions for participating nations, provides for transfers between nations, maintains minimum size and/or weight limits for swordfish, maintains previous carryover caps, and requires that participating nations submit a report detailing the history of their north Atlantic swordfish fisheries and a management plan. Recommendation 09-03, “Recommendation by ICCAT on south Atlantic swordfish catch limits”, establishes catch limits for participating nations in the south Atlantic swordfish fishery, provides for transfers of quota between member nations, and maintains a carryover cap in the event of underharvest. Implications of Recommendation 10-02 and Recommendation 09-03 are discussed in the relevant sections below.

Information on the proposed rule can be found in 75 FR 36892 (June 23, 2011) and are not repeated here. A brief summary of the actions in this final rule can be found below.

North Atlantic Swordfish Quota

This final rule adjusts the total available North Atlantic swordfish quota for the 2011 fishing year (January 1, 2011, through December 31, 2011) to account for the 2010 underharvest, and transfers 25 metric tons (mt) whole weight (ww) (18.8 mt dressed weight (dw)) of quota to Canada from the reserve category in conformance with ICCAT Recommendation 10-02. ICCAT recommendation 10-02 replaces the provisions of previous ICCAT Recommendations.

The 2010 North Atlantic swordfish baseline quota is 2,937.6 mt dw. The estimated total North Atlantic swordfish underharvest for 2010 was 2,370.6 mt dw, which exceeds the maximum carryover cap of 1,468.8 mt dw, established in ICCAT Recommendation 06-02 and extended by ICCAT Recommendation 10-02. Therefore, NMFS is carrying forward the maximum amount allowed by the recommendation. Thus, the baseline quota plus the underharvest carryover maximum of 1,468.8 mt dw equals an adjusted quota of 4,406.4 mt dw for the 2011 fishing year (Table 1).

South Atlantic Swordfish Quota

This final rule adjusts the total available South Atlantic swordfish quota for the 2011 fishing year (January 1, 2011, through December 31, 2011) to account for the 2010 underharvest and transfer the total South Atlantic underharvest of 75.0 metric tons (mt) dressed weight (dw), plus 0.2 mt dw from the 2011 baseline quota, (100 mt ww) to Namibia, Côte d'Ivoire, and Belize in conformance with ICCAT Recommendation 09-03.

The ICCAT South Atlantic swordfish measure, recommendation 09-03, is a 3-year measure that maintains the U.S. quota of 100 mt ww (75.2 mt dw). Recommendation 09-03 states that a total of 100 mt ww (75.2 mt dw) of the U.S. South Atlantic swordfish quota must be transferred to other countries. These transfers are 50 mt ww (37.6 mt dw) to Namibia, 25 mt ww (18.8 mt dw) to Côte d'Ivoire, and 25 mt ww (18.8 mt dw) to Belize. In 2010, the 100 mt ww (75.2 mt dw) that was transferred to these countries came entirely from the 2009 U.S. underharvested quota. In 2010, landings totaled 0.2 mt dw, and the United States therefore has 75.0 mt dw of the 2010 underharvest available for transfer and will transfer the remaining 0.2 mt dw from the 2011 baseline quota. Therefore, the 2011 available quota for South Atlantic swordfish is 75.0 mt dw (see Table 1).

Response to Comments

NMFS received two written comments on the proposed rule, which are summarized below with NMFS's responses. One submission was anonymous, while the other was from an industry organization (Blue Water Fishermen's Association). One submission included comments that were both relevant to the rule and beyond the scope of this rulemaking; the comments beyond the scope of the rulemaking were separated into a third comment for the record.

Comment 1: NMFS received one comment in opposition to the establishment of North and South Atlantic commercial swordfish quotas and one comment that provided general support for ICCAT swordfish quotas.

Response: The establishment of annual swordfish quotas is necessary to comply with ICCAT Recommendation 10-02 and ICCAT Recommendation 09-03. Under ATCA, the United States is obligated to promulgate regulations as may be necessary and appropriate to carry out the ICCAT recommendations.

Comment 2: One commenter noted that there was “no underharvest” in the 2010 fishery and noted problems with the regulations.gov Web page.

Response: NMFS disagrees with the statement that there was no underharvest in 2010; the adjusted 2010 quota for North Atlantic swordfish was 4,406.4 mt dw, and the landings amounted to 2,035.8 mt dw. A total of 2,370.6 mt dw of available swordfish quota was not landed in 2010 and is therefore considered underharvest. Finally, the comment noted problems with regulations.gov which were addressed system-wide shortly after the docket for the proposed rule was created. Problems associated with regulations.gov were not considered to adversely impact the general public because alternative methods for comment submission were provided in the proposed rule. Additionally, a second submission was received through regulations.gov after the complaints in the comment were addressed, indicating a successful resolution of the problem.

Comment 3: NMFS should (1) replace time-area closures with adjustments on the domestic gear restrictions (i.e., circle hooks, etc.), and re-open the closed areas within the U.S. EEZ to assist in the revitalization of the fishery; (2) reinstate a 33 lb (15 kg) weight limit on swordfish because NMFS is “exceeding ICCAT recommendations” by removing the 33 lb minimum weight for swordfish; and, (3) consider the conservation impacts on swordfish stocks that come with transferring U.S. quota away from U.S. fishermen to countries that do not exercise the same conservation standards.

Response: These issues are beyond the scope of this action. First, this rule addresses quota specifications, not time/area closures and other management measures. Secondly, ICCAT recommendation 10-02 provides for two minimum size alternatives for Contracting Parties. Contracting Parties may restrict fishermen to a minimum size of 25 kg live weight OR 125 cm lower jaw fork length (LJFL) with 15 percent tolerance; alternatively, Contracting Parties may restrict fishermen to a minimum size of 15 kg live weight OR 119 cm LJFL with no tolerance. In 2009, NMFS decided to simplify swordfish minimum size to facilitate enforcement. Minimum length and weight were considered equal in effect and refer to the same size of fish; therefore NMFS decided to drop the minimum weight requirement of 33 lbs (15 kg) and only use a minimum length to protect juvenile swordfish. 50 CFR § 635.20 (2009) Since NMFS maintained the ICCAT minimum size recommendation of 119 cm LFJL and ICCAT recommendation 10-02 provides the option of using a minimum size or a minimum weight, NMFS disagrees that the Agency is exceeding ICCAT recommendations by only implementing a 119 cm LFJL. Thirdly, the annual transfers of quota are necessary to comply with ICCAT Recommendation 10-02, as agreed upon by the Contracting Parties, which explicitly states that the United States is to transfer 25 mt ww (18.8 mt dw) of North Atlantic swordfish quota and 100 mt ww (75.2 mt dw) of South Atlantic swordfish quota, among other things. Per the ATCA, the United States is obligated to implement ICCAT-approved recommendations.

Changes From the Proposed Rule

No changes have been made to the proposed rule in this final rule.

Table 1—Landings and Quotas for the Atlantic U.S. Swordfish Fisheries (2007-2011)

[Values are in metric tons of dressed weight (dw)]

North Atlantic swordfish quota (mt dw)	2007	2008	2009	2010 **	2011
Baseline Quota	2,937.6	2,937.6	2,937.6	2,937.6	2,937.6
Quota Carried Over	1,468.8	1,468.8	1,468.8	1,468.8	1,468.8
Adjusted Quota	4,406.4	4,406.4	4,406.4	4,406.4	4,406.4
Quota Allocation:
Directed Category	3,601.9	3,620.7	3,639.5	3,658.3	3,677.1
Incidental Category	300.0	300.0	300.0	300.0	300.0
Reserve Category	504.5	485.7	466.9	448.1	429.3
Utilized Quota:
Landings	1,907.3	1,752.7	2,027.0	**2,035.8	TBD
Reserve Transfer to Canada	18.8	18.8	18.8	18.8	18.8
Total Underharvest	2,480.3	2,634.9	2,360.6	**2,370.6	TBD
Dead Discards	109.8	149.8	106.8	98.3	TBD
Carryover Available†	1,468.8	1,468.8	1,468.8	1,468.8	TBD

South Atlantic swordfish quota (mt dw)	2007	2008	2009	2010**	2011
Baseline Quota	75.2	75.2	75.2	75.2	75.2
Quota Carried Over	75.2	75.2	75.2	*0.0	*−0.2
Adjusted quota	150.4	150.4	75.2	75.2	75.0
Landings	0.0	0.0	0.0	**0.2	TBD
Carryover Available	75.2	75.2	75.2	75.0	TBD
† Underharvest is capped at 50 percent of the baseline quota allocation for the North Atlantic and 75.2 dw (100 mt ww) for the South Atlantic.
* Under 09-03, 100 mt ww of the U.S. underharvest and base quota, as necessary, was transferred to Namibia (37.6 mt dw, 50 mt ww), Côte d'Ivoire (18.8 mt dw, 25 mt ww), and Belize (18.8 mt dw, 25 mt ww).
** 2010 landings information is preliminary and is subject to change based on the 2011 ICCAT National Report.

Classification

The Assistant Administrator for Fisheries has determined that this final rule is necessary for the conservation and management of Atlantic swordfish and that it is consistent with the 2006 Consolidated HMS FMP, the Magnuson-Stevens Act, ATCA, and other applicable law.

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. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

List of Subjects in 50 CFR Part 635

• Fisheries
• Fishing
• Fishing vessels
• Foreign Relations
• Imports
• Penalties
• Reporting and recordkeeping requirements
• Treaties

Dated: September 7, 2011.

Samuel D. Rauch III,

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. In § 635.27, paragraph (c)(1)(i)(B) is revised to read as follows:

§ 635.27

Quotas.

* * * * *

(c) * * *

(1) * * *

(i) * * *

(B) A swordfish from the North Atlantic swordfish stock landed by a vessel for which an incidental catch permit for swordfish or an HMS Angling or Charter/Headboat permit has been issued, 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 category quota is 300 mt dw for each fishing year.

* * * * *