[Federal Register Volume 65, Number 239 (Tuesday, December 12, 2000)]
[Rules and Regulations]
[Pages 77523-77527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31651]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 000511133-0330-03; I.D. 120999B]
RIN 0648-AN52


Atlantic Highly Migratory Species Fisheries; Implementation of 
ICCAT Recommendations

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to amend the regulations governing 
the Atlantic swordfish fishery to reduce the annual landings quota for 
the north Atlantic swordfish stock to 2,219 metric tons (mt) dressed 
weight (dw) for each of the next 3 fishing years (2000, 2001, 2002), 
with 300 mt dw allocated for incidental catch and the remainder 
allocated equally to each of the two semi-annual seasons for the 
directed fishery (June 1 through November 30 and December 1 through May 
31). This final rule also establishes an allowance for dead discards of 
320 mt whole weight (ww) in 2000, 240 mt ww in 2001, and 160 mt ww in 
2002. Dead discards in excess of the allowance will be deducted from 
the subsequent year's landings quota. Additionally, NMFS is taking 
several actions regarding import restrictions: Removing a prohibition 
on the importation of Atlantic bluefin tuna from Panama; prohibiting 
the importation of BFT and its products from Equatorial Guinea; and 
prohibiting the importation of Atlantic swordfish and its products from 
Belize and Honduras.
    The intent of these actions is to improve conservation and 
management of the Atlantic swordfish and BFT, while allowing harvests 
consistent with recommendations of the International Commission for the 
Conservation of Atlantic Tunas (ICCAT).

DATES: All provisions of this final rule are effective January 11, 
2001.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review/ Final Regulatory Flexibility Analysis (EA/RIR/FRFA) supporting 
this action may be obtained from Rachel Husted, Highly Migratory 
Species Division, Office of Sustainable Fisheries, NMFS, 1315 East-West 
Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Rachel Husted, 301-713-2347; fax: 301-
713-1917 or by email at [email protected].

SUPPLEMENTARY INFORMATION: The U.S. Atlantic swordfish fishery and the 
BFT fishery 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. This final rule is based on two proposed 
rules, both published on May 24, 2000. One of the proposed rules 
described the proposed changes in trade restrictions (65 FR 33517) 
while the other described the proposed quotas associated with the 
rebuilding program for north Atlantic swordfish (65 FR 33519). The 
contents of the two proposed rules were combined in the development of 
this final rule.

Swordfish Rebuilding Program

    According to the 1999 ICCAT stock assessment, the biomass of the 
north Atlantic swordfish stock at the beginning of 1999 was estimated 
to be at 65 percent of that needed to produce maximum sustainable yield 
(MSY). The biomass associated with MSY is the target stock size of the 
rebuilding program for north Atlantic swordfish. The 1998 fishing 
mortality rate was estimated to be 1.34 times the rate needed to 
produce MSY. Because NMFS is committed to rebuilding north Atlantic 
swordfish, consistent with the recent ICCAT 10-year rebuilding program 
and the requirements of the Magnuson-Stevens Act, immediate reductions 
in landings are necessary to rebuild the stock to levels that would 
support MSY.
    North Atlantic swordfish landings for all nations combined for 1998 
were estimated to be 12,175 mt ww. At the November 1999 ICCAT meeting, 
a recommendation was adopted to establish a 10-year rebuilding program 
for north Atlantic swordfish and to reduce the total allowable catch 
for all countries fishing on that stock to 10,600 mt ww (7,970 mt dw) 
for 2000; 10,500 mt ww (7,895 mt dw) for 2001; and 10,400 mt ww (7,820 
mt dw) for 2002. Although the ICCAT recommendation specifies the quota 
in whole weight, this document refers to the landings quotas in dressed 
weight (dw = 0.7519 ww) for the purposes of monitoring U.S. harvests, 
as swordfish are processed at sea and landed in dressed form (head, 
fins, viscera and tails removed). This final rule implements the ICCAT 
recommendations for rebuilding north Atlantic swordfish.
    Under the ICCAT recommendation, the United States is allocated 29 
percent of the North Atlantic swordfish landings quota (total allowable 
catch minus the total dead discard allowance) for major harvesting 
nations in 2000, 2001, and 2002. This amounts to 2,951 mt ww for each 
year and represents a 5 percent decrease from the U.S. landings quota 
recommended by ICCAT for 1998. Consistent with the HMS FMP, the annual 
quota is divided between a directed fishery quota and an incidental 
quota (1,919 mt dw directed, 300 mt dw incidental). The directed 
fishery quota of 1,919 mt dw is divided equally into two semi-annual 
quotas: June 1 - November 30 and December 1 - May 31

[[Page 77524]]

(959.5 mt dw for each semi-annual season). The incidental quota allows 
for landings of swordfish taken incidental to other fisheries such as 
the highly migratory species (HMS) recreational fishery or the pelagic 
longline fishery for tunas.
    In addition to the landings quota, ICCAT allocated to the United 
States 80 percent of the dead discard allowance (i.e., the U.S. share 
is 320 mt ww in 2000, 240 mt ww in 2001, and 160 mt ww in 2002). The 
dead discard allowance is to be phased out by 2004. The United States 
will deduct any amount over its dead discard allowance from the U.S. 
landings quota in the following year. If the United States discards 
less than its share of the dead discard allowance, the remainder will 
be added to the total quota available for all fishing nations in 
subsequent years, and will be reallocated by ICCAT.
    In 1998, the United States reported discarding 433 mt ww of dead 
swordfish in the North Atlantic Ocean. Assuming dead discards occur in 
proportion to landings, dead discards in 2000 might decrease to 411 mt 
ww commensurate with the 5 percent decrease in landings quota (i.e., 5 
percent less than 433 mt reported for 1998). This would result in an 
expected overharvest of the 2000 dead discard allowance by 91 mt ww. If 
discard rates remain proportional to the adjusted quota in 2001 and 
2002, the dead discard allowance would be exceeded by 158 and 230 mt 
ww, respectively. These overages would require further reductions in 
the landings quotas and, combined with the initial landings quota 
reduction recommended by ICCAT (5 percent), might result in an actual 
decrease in landings of up to 10 percent by 2002 if the rate of 
discarding is not reduced (refer to the EA/RIR/FRFA for more details). 
However, on August 1, 2000, NMFS published a final rule intended to 
reduce dead discards of swordfish through time/area closures (65 FR 
47214). If the time/area closures are effective, they will mitigate to 
some extent the effects of phasing out the dead discard allowance.
    These regulatory changes will further ICCAT's international 
management objectives for the Atlantic swordfish fishery. NMFS has 
evaluated the annual quota and the dead discard allowance in accordance 
with the procedures and factors specified in 50 CFR 635.27(c)(3), and 
has determined that these measures are consistent with the latest stock 
assessment and recommendations of ICCAT.

Import Restrictions

    On August 21, 1997 (62 FR 44422), NMFS implemented a 1996 ICCAT 
recommendation to prohibit the importation of BFT and its products from 
Panama, Honduras, and Belize. At that time, vessels of those countries 
had been determined by ICCAT to be fishing in a manner inconsistent 
with ICCAT conservation and management measures for BFT. In recognition 
of Panama's new status as a Contracting Party to ICCAT and the steps 
that country has taken and is taking to control its fleet and address 
ICCAT's concerns, ICCAT recommended in 1999 that its members lift the 
trade ban on BFT products from Panama. Therefore, consistent with the 
1999 ICCAT recommendation, this final rule lifts the BFT import 
restriction with respect to Panama.
    In contrast to the efforts of the Government of Panama, information 
available to ICCAT indicates that Honduras and Belize continue to have 
vessels fishing in a manner that diminishes the effectiveness of 
ICCAT's conservation and management measures for both BFT and Atlantic 
swordfish. (Background on the original determination can be found at 62 
FR 44422, August 21, 1997.) In recent years, significant increases in 
exports of swordfish by Belize and Honduras have been recorded, 
although no swordfish catch data have been reported to ICCAT. This 
increased activity is occurring while other countries have reduced 
their catches of swordfish to comply with ICCAT conservation measures 
for the overfished North Atlantic swordfish population. ICCAT has 
repeatedly contacted the governments of Belize and Honduras but has not 
received a satisfactory response from either government regarding 
actions to rectify the situation. Therefore, consistent with the 1999 
ICCAT recommendation, NMFS prohibits the importation of Atlantic 
swordfish and its products from Honduras and Belize. The prohibition on 
imports of BFT and its products from these countries also remains in 
effect.
    In 1999, ICCAT also recommended that its members prohibit imports 
of BFT from Equatorial Guinea (a Contracting Party to ICCAT). ICCAT 
took this step as a last resort to address non-compliance with BFT 
catch quota limits. Import data from Japan for the years 1997-1999 
reveal significant exports of BFT by Equatorial Guinea despite the fact 
that, for those years, this country received no BFT catch allocation 
from ICCAT. The Government of Equatorial Guinea has not responded to 
repeated correspondence from ICCAT regarding the BFT fishing activities 
of its vessels and Equatorial Guinea has reported no BFT catch data. 
Therefore, consistent with the 1999 ICCAT recommendation, NMFS 
prohibits the importation of BFT and its products from Equatorial 
Guinea.

Other ICCAT Issues

    ICCAT adopted a number of other recommendations and resolutions at 
the 1999 meeting that will not require rulemaking, but will require 
management action on the part of NMFS. These include a recommendation 
reiterating the limitation on fishing capacity of commercial vessels 
fishing for Northern albacore, and a recommendation calling for the 
United States to endeavor to limit its total catch of southern albacore 
to no more than 4 percent by weight of its total catch of south 
Atlantic swordfish. Several other recommendations include provisions 
that request Contracting Parties to provide catch data or information 
related to fishing vessel registration. ICCAT also adopted a non-
binding resolution encouraging all parties to participate actively in 
efforts to combat illegal, unregulated and unreported fishing. NMFS 
intends to implement these measures through non-regulatory actions and 
will provide ICCAT with all available information that has been 
requested by ICCAT.

Summary

    NMFS will implement ICCAT's 1999 recommendation of a North Atlantic 
swordfish U.S. quota of 2,219 mt dw for each year 2000, 2001, and 2002. 
The U.S. landings quota will remain constant for 2000, 2001, and 2002, 
but it is subject to adjustment between years (consistent with ICCAT 
recommendations) if the directed or incidental quotas are exceeded or 
underharvested, or if the dead discard allowance is exceeded.
    Consistent with the HMS FMP, the directed fishery quota of 1,919 mt 
dw is divided equally into two semi-annual quotas: June 1 - November 30 
and December 1 - May 31 (959.5 mt dw for each season). Any cumulative 
overharvest/underharvest that occurs during any year would then be 
subtracted from/added to the following year's quota, consistent with 
the ICCAT recommendations.
    In addition, this final rule establishes a dead discard allowance. 
Any discards in excess of the dead discard allowance will be subtracted 
from the directed quota for the following year.
    NMFS prohibits the importation of BFT from Equatorial Guinea, 
extends

[[Page 77525]]

the import prohibition on BFT from Honduras and Belize to include an 
import prohibition on Atlantic swordfish, and lifts the prohibition on 
BFT imports from Panama.

Comments and Responses

    NMFS held public hearings in June-July 2000 to receive comments 
from fishery participants and other members of the public regarding the 
proposed regulations. One written comment was submitted to NMFS during 
the 60-day comment period. Responses to specific comments are provided 
according to subject.

North Atlantic Swordfish Rebuilding Program

    Comment 1: U.S. pelagic longline fishermen support the recommended 
quota reduction to achieve rebuilding for North Atlantic swordfish. 
However, this support is based on the presumption that all other 
countries harvesting in the Atlantic will comply with the rebuilding 
program. The conservation contributions of U.S. fishermen must not be 
undermined by the non-compliance of other parties fishing in the 
Atlantic.
    Response: The United States has taken a leading role in ensuring 
compliance by ICCAT members and cooperation by non-members with the 
conservation and management measures of ICCAT. NMFS will continue to 
advocate for the full implementation of these measures by all parties. 
According to the compliance recommendations that have been adopted by 
ICCAT, continued violation of quotas can result in deductions from a 
party's quota and/or trade measures.
    Comment 2: The dead discard allowance penalizes U.S. and Canadian 
fishermen for their honest reporting of dead discards that result from 
a zero tolerance for undersized fish. Other nations continue to land 
undersized swordfish in excess of their 15 percent tolerance level. If 
other countries continue to violate the minimum-size restrictions, 
ICCAT should eliminate the minimum size and instead recommend hot-spot 
closures in all appropriate Atlantic areas to accomplish the goal of 
protecting juvenile swordfish.
    Response: NMFS is aware that some other nations harvest small 
swordfish in excess of the allowed tolerance level. To discourage this 
practice, the United States has taken steps to eliminate the sale of 
undersized swordfish in the U.S. market. In addition, the United States 
supported an ICCAT resolution adopted in 1999 that requests the 
Standing Committee on Research and Statistics (SCRS) to analyze 
possible times and areas for international closures to protect small 
swordfish. The SCRS will also conduct the necessary studies to 
determine whether modifications in longline gear configurations can 
reduce catches of undersized swordfish. A report on these findings will 
be presented in November 2002. At that time, alternatives to the 
minimum size may be considered.
    Comment 3: Handgear permits issued under the limited access program 
have created a new directed fishery on the east coast of Florida and 
the Gulf of Mexico, areas that have been identified as juvenile 
swordfish hot-spots. This additional source of mortality in areas that 
are closed to pelagic longline vessels could threaten the effectiveness 
of the swordfish rebuilding program.
    Response: It is likely that small swordfish taken by handgear can 
be released alive. NMFS intends to monitor catches and dead discards in 
this sector of the fishery, and will take additional steps to reduce 
mortality on juvenile swordfish as necessary.
    Comment 4: There is no need for 300 mt dw to be set aside for the 
incidental quota. This allocation could result in unnecessary closures 
toward the end of the first semi-annual season, which is a critical 
time for fishermen on the Grand Banks.
    Response: Recent action to establish limited access permits for the 
directed and incidental swordfish fisheries together with the 
implementation of time/area closures may affect the distribution of 
catch and effort in the directed and incidental categories. Depending 
on the accumulated catch in each category, NMFS may reconsider the 
distribution of quota. In the interim, NMFS will attempt to avoid 
directed fishery closures whenever possible through in-season transfers 
as allowed under the regulations.

Import Restrictions

    Comment 6: The proposed import restrictions are not an effective 
means of enforcing compliance with ICCAT's conservation and management 
program. In some cases, we do not import swordfish or BFT from 
identified countries.
    Response: NMFS recognizes that the United States does not currently 
have significant imports from the identified countries. However, NMFS 
believes that it is important to adopt these measures in order to 
provide multilateral support for countries like Japan that do import 
fish from these countries. Such multilateral action helps to ensure 
that trade restrictions prevent these countries from exporting their 
fish to new markets or from transshipping through intermediary nations 
in order to evade trade restrictions.
    Comment 7: Due to the lag time associated with data collection and 
implementation of the regulations, the United States has difficulty 
considering new catch and trade information that comes to light between 
ICCAT meetings.
    Response: NMFS recognizes these difficulties but is committed to 
using the best available data to evaluate member and non-member fishing 
activities in an effort to identify possible trade-related problem 
vessels and countries for consideration and possible action at ICCAT. 
NMFS believes that, although time consuming, a multilateral approach is 
an appropriate and effective way to address fishing activities that 
diminish the effectiveness of ICCAT.

Northern Albacore Rebuilding

    Comment 8: A rebuilding program for northern albacore must take 
into consideration the U.S. recreational fishery. Establishing an 
incidental catch quota and applying recreational landings against that 
quota, as was done in the swordfish rebuilding program, will not 
reflect the magnitude of the current recreational fishery for albacore.
    Response: In establishing the foundation for an international 
rebuilding program, NMFS would work through ICCAT to adopt a target 
stock size and time frame for rebuilding. Should ICCAT adopt a country 
specific quota system as an element of the rebuilding program, the 
United States would seek to obtain an equitable allocation based on its 
historic share, including both the recreational and commercial 
components of the fishery. Domestic implementation of the country quota 
would again reflect patterns of historical use.

Changes From the Proposed Rule

    No changes, other than minor editorial changes, were made from the 
proposed rule.

Classification

    This final rule is published under the authority of the Magnuson-
Stevens Act and ATCA. The Assistant Administrator for Fisheries, NOAA 
has determined that the regulations contained in this 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 the Atlantic swordfish and BFT. 
No new reporting, record-keeping, or other compliance requirements are 
required by this final rule.

[[Page 77526]]

    There were no significant issues raised by the public in response 
to the Initial Regulatory Flexibility Analysis (IRFA). A Final 
Regulatory Flexibility Analysis (FRFA) has been prepared and a summary 
is provided here. In preparing the FRFA, it was assumed that the 
population of small entities affected consists of fishermen issued 
limited access permits for swordfish. As of December 31, 1999, there 
were 450 directed and incidental swordfish permit holders and 118 
swordfish handgear permit holders. The quota reductions and 
implementation of the dead discard allowance will, in the short term, 
reduce ex-vessel swordfish revenues for a substantial portion of the 
swordfish fleet.
    Assuming that the lower quotas will result in equal reductions in 
swordfish catch for all vessels, the majority of the fleet may 
experience declines in revenue of between 1 and 4 percent by 2001. By 
2002, about 42 percent of active permit holders will experience 
declines in gross revenues of between 1 and 5 percent, although none of 
the active permit holders will experience revenue decreases of 5 
percent or more. Estmated impacts are lower than those provided in the 
draft EA, due to a final rule to reduce bycatch and incidental catch in 
the pelagic longline fishery that was published on August 1, 2000. 
Additional vessels may be affected if there are more dead discards than 
expected, thereby making further reductions to the landings quota 
necessary. However, even without compensatory actions by vessel 
operators (e.g., increased yellowfin or bigeye tuna fishing) or 
marketing efforts to enhance prices in the domestic fresh swordfish 
market, no vessels are expected to experience revenue declines of 5 
percent or more. Additionally, lower quotas expected to contribute to 
stock rebuilding within a 10-year time frame. Thus, negative short-term 
impacts are expected to yield revenue gains in the long run as the 
stock is rebuilt and landings quotas increase.
    The other alternative considered by NMFS was the status quo. No 
other alternatives were considered, because NMFS is required under ATCA 
to implement ICCAT recommendations upon acceptance by the United States 
and because multilateral action through ICCAT is the only way swordfish 
can be rebuilt. Although the status quo for the swordfish quotas might 
have lesser short-term economic impacts on participants in the pelagic 
longline fishery, that alternative is not consistent with the 
rebuilding plan established by the HMS FMP. Not implementing the quota 
reductions and the dead discard allowance at this time would maintain 
current catch levels only in the short term. Eventually, further 
decline in swordfish abundance would increase fishing costs (lower 
catch per unit effort/increased discards of small fish) and decrease 
revenues (lower total swordfish catch); thus, greater economic impacts 
would likely result from maintaining the status quo. The FRFA provides 
further discussion of the economic effects of the alternatives 
considered. The factual, policy and legal reasons for selecting the 
alternatives adopted in the final rule are outlined in the EA.
    Implementing the trade restrictions for Belize, Honduras and 
Equatorial Guinea will not have a significant economic impact on a 
substantial number of small entities, because these countries currently 
do not export to the United States and there are already alternative 
sources of supply for U.S. importers and processors.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866. The final action does not impose any 
additional reporting or recordkeeping requirements subject to OMB 
approval under the Paperwork Reduction Act.
    On November 19, 1999, NMFS reinitiated formal consultation for all 
HMS commercial fisheries under section 7 of the Endangered Species Act. 
A new Biological Opinion (BO) was issued on June 30, 2000. However, 
NMFS has reinitiated consultation on the pelagic fisheries for 
swordfish, sharks, tunas and billfish because the agency determined 
further analysis of observer data and additional population modeling of 
loggerhead sea turtles are needed to determine more precisely the 
impact of the pelagic longline fishery on turtles. In the meantime, 
NMFS has issued an emergency rule that is effective for 180 days from 
October 10, 2000 through April 9, 2001. The emergency regulations 
establish a time and area closure and gear requirements to reduce 
bycatch and bycatch mortality of threatened loggerhead and endangered 
leatherback sea turtles pending completion of the new BO.

List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Management, Reporting and recordkeeping 
requirements, Treaties.

    Dated: December 6, 2000.
William T. Hogarth,
Deputy Assistant Administrator for Fisheries, 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 Sec.  635.27, paragraphs (c)(1)(i)(A) and (c)(3)(i) are 
revised, and paragraphs (c)(1)(i)(C) and (c)(3)(iii) are added to read 
as follows:


Sec. 635.27  Quotas.

    (c) Swordfish. (1) * * *
    (i) North Atlantic swordfish stock. (A) The 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.
    (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 May 1, 2001. All swordfish discarded dead from 
U.S. fishing vessels, regardless of whether discarded from vessels 
permitted under this part, shall be counted against the allowance.
    (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.
    (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. NMFS will file with the Office of the Federal 
Register for publication notification of any adjustment made under this 
paragraph (c)(3)(iii).

[[Page 77527]]


    3. Section 635.45 is revised to read as follows:


Sec. 635.45  Products denied entry.

    (a) All shipments of BFT or BFT products, or swordfish or swordfish 
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 BFT or BFT products, in any form, harvested by 
a vessel under the jurisdiction of Equatorial Guinea will be denied 
entry into the United States.

    4. The heading of Sec.  635.46 is revised to read as follows:


Sec. 635.46  Import requirements for swordfish.

[FR Doc. 00-31651 Filed 12-11-00; 8:45 am]
BILLING CODE 3510-22-S