[Federal Register Volume 74, Number 65 (Tuesday, April 7, 2009)]
[Rules and Regulations]
[Pages 15669-15672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7859]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 080404529-81598-02]
RIN 0648-AW61


Atlantic Highly Migratory Species; Atlantic Swordfish Quotas

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

ACTION: Final rule.

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SUMMARY: This final rule would adjust the North and South Atlantic 
swordfish quotas for the 2008 fishing year (January 1, 2008, through 
December 31, 2008) to account for 2007 underharvests, to the extent 
allowable, and transfer 18.8 metric tons (mt) dressed weight (dw) to 
Canada per the 2006 International Commission for the Conservation of 
Atlantic Tunas (ICCAT) recommendations 06-02 and 06-03. The North 
Atlantic 2008 directed baseline quotas plus the 2007 underharvest would 
be divided equally between the semiannual periods of January through 
June, and July through December. The adjustment of the swordfish 
quotas, to account for underharvests is administrative in nature and 
does not require a change to regulatory text.

DATES: This rule is effective on May 7, 2009.

ADDRESSES: For copies of the supporting documents, including the 
proposed rule (73 FR 68398, November 18, 2008); the 2007 Environmental 
Assessment (EA), Regulatory Impact Review (RIR), and Final Regulatory 
Flexibility Analysis (FRFA); and the 2006 Consolidated Atlantic Highly 
Migratory Species (HMS) Fishery Management Plan (FMP), please write to 
Highly Migratory Species Management Division, 1315 East-West Highway, 
Silver Spring, MD 20910, visit the HMS website at http://www.nmfs.noaa.gov/sfa/hms/, or contact LeAnn Southward Hogan.

FOR FURTHER INFORMATION CONTACT: LeAnn Southward Hogan or Karyl 
Brewster-Geisz by phone: 301-713-2347 or by fax: 301-713-1917.

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. Regulations issued under the authority of ATCA 
carry out the recommendations of ICCAT as necessary and appropriate.
    NMFS published a proposed rule on November 18, 2008 (73 FR 68398), 
announcing the proposed adjustment of the 2008 North and South Atlantic 
swordfish baseline quotas for the 2008 fishing year to account for 2007 
underharvests per 50 CFR 635.27(c) and ICCAT recommendations, and to 
conduct the annual reserve transfer of 18.8 metric ton (mt) dressed 
weight (dw) to Canada. The proposed rule also proposed modifications to 
the vessel chartering regulations. On December 11, 2008, NMFS published 
a notice (73 FR 75382) extending the public comment period until 
January 16, 2009, to give the public more time and opportunities to 
comment on the proposed rule. Information regarding the proposed rule 
can be found in the preamble of the proposed rule and are not repeated 
here.

1. Swordfish Quota

a. North Atlantic

    The final rule adjusts the total available quota for the 2008 
fishing year to account for the 2007 underharvests to the maximum 
extent allowable, consistent with ICCAT recommendation 06-02. The 2008 
North Atlantic swordfish baseline quota is 2,937.6 mt dw. The total 
North Atlantic swordfish underharvest for 2007 was 3,220.1 mt dw, which 
exceeds the maximum carryover cap of 1,468.8 mt dw. Therefore, NMFS is 
carrying forward the maximum allowable capped amount during the defined 
management period (2007-2008) per ICCAT recommendation 06-02. Thus, the 
baseline quota plus the underharvest carryover maximum of 1,468.8 mt dw

[[Page 15670]]

equals an adjusted quota of 4,406.4 mt dw for the 2008 fishing year. 
Per regulations at 50 CFR 635.27(c)(3), the directed category would be 
allocated 3,620.7 mt dw, the incidental category would be allocated 300 
mt dw, and the reserve category would be reduced from a quota of 504.5 
mt dw to 485.7 due to the transfer of 18.8 mt dw to Canada (Table 1).

b. South Atlantic

    As with the North Atlantic swordfish recommendation, ICCAT 
recommendation 06-03 establishes a cap on the amount of underharvest 
that can be carried forward during the defined management period (2007-
2009). For South Atlantic swordfish, the United States is limited to 
carrying forward 100 mt ww (75.2 mt dw). The 2008 South Atlantic 
swordfish baseline quota is 75.2 mt dw. The total South Atlantic 
swordfish underharvest for 2007 was 150.4 mt dw, which exceeds the 
maximum carryover cap of 75.2 mt dw. Therefore, NMFS is carrying 
forward the capped amount per ICCAT recommendation 06-03. As a result, 
the baseline quota plus the underharvest carryover maximum of 75.2 mt 
dw equals an adjusted quota of 150.4 mt dw for the 2008 fishing year 
(Table 1).

                                    Table 1 -- Landings and Quotas for the Atlantic Swordfish Fisheries (2005 - 2008)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
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North Atlantic Swordfish Quota (mt dw)                                                     2005               2006               2007               2008
                                                                                                                                             preliminary
========================================================================================================================================================
Baseline Quota                                                                          2,937.6            2,937.6            2,937.6            2,937.6
========================================================================================================================================================
Quota Carried Over                                                                      3,359.1            4,691.2            1,468.8            1,468.8
========================================================================================================================================================
Adjusted quota                                                                          6,296.7            7,628.8            4,406.4            4,406.4
========================================================================================================================================================
Quota Allocation                                           Directed Category            5,895.2            7,246.1            3,601.9            3,620.7
                                                          ----------------------------------------------------------------------------------------------
                                                                  Incidental              300.0              300.0              300.0              300.0
                                                                    Category
                                                          ----------------------------------------------------------------------------------------------
                                                            Reserve Category              101.5               82.7              504.5              485.7
========================================================================================================================================================
Utilized Quota                                                      Landings            1,471.8            1,291.5            1,167.5      1,576.4 as of
                                                                                                                                           Dec. 31, 2008
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                                                            Reserve Transfer               18.8               18.8               18.8               18.8
                                                                   to Canada
========================================================================================================================================================
Total Underharvest                                                                      4,806.1            6,318.5            3,220.1            2,811.2
========================================================================================================================================================
Dead Discards                                                                             114.9              154.9              149.2                TBD
========================================================================================================================================================
Carryover Available+                                                                    4,691.2            1,468.8            1,468.8                TBD
--------------------------------------------------------------------------------------------------------------------------------------------------------
South Atlantic Swordfish Quota (mt dw)                                                     2005               2006               2007               2008
                                                                                                                                             preliminary
----------------------------------------------------------=============================================================================
Baseline Quota                                                                             75.2               90.2               75.2               75.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Quota Carried Over                                                                        319.3              394.5               75.2               75.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Adjusted quota                                                                            394.5              484.7              150.4              150.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
Landings                                                                                    0.0                0.0                0.0        0.0 to date
========================================================================================================================================================
Carryover Available+                                                                      394.5               75.2               75.2               75.2
--------------------------------------------------------------------------------------------------------------------------------------------------------

2. Vessel Chartering

    The proposed rule (73 FR 68398, November 18, 2008) proposed to 
modify regulations regarding vessel chartering, consistent with ICCAT 
recommendation 02-21, potentially to allow Atlantic HMS limited access 
permit (LAP) holders to charter foreign vessels of ICCAT Contracting 
Parties, non-Contracting Cooperating Parties, Entities and Fishing 
Entities (CPC) under a chartering arrangement to fish on the high seas, 
where catches taken would count against U.S. Atlantic HMS quotas. The 
proposed chartering regulations would have established a process and 
criteria for NMFS's evaluation of proposed chartering arrangements and 
established certain limitations that would be placed on such chartering 
arrangements. As described below in the response to comments, NMFS has 
decided not to finalize the proposed changes to the chartering 
regulations.

3. Response to Comments

    Comments on the proposed rule are summarized below, together with 
NMFS' responses.
    Comment 1: NMFS received several comments in support of and in 
opposition to the adjustment of the 2008 North and South Atlantic 
swordfish quotas to account for 2007 underharvests.
    Response: The 2008 annual specifications are necessary to implement 
the 2006 ICCAT quota recommendations, as implemented domestically under 
ATCA, and to achieve domestic management objectives under the Magnuson-
Stevens Act. ICCAT recommendation 06-02 limits the amount of North 
Atlantic swordfish underharvest that can be carried forward by all CPCs 
to 50 percent of that entity's baseline quota allocation for 2007 and 
2008. This action is in accordance with the

[[Page 15671]]

framework procedures set forth in the 2006 Consolidated Atlantic HMS 
FMP, and is supported by the analytical documents prepared for the 2006 
Consolidated HMS FMP and for the 2007 North and South Atlantic 
swordfish quota specifications.
    Comment 2: NMFS received several comments opposing the proposed 
modifications to the vessel chartering regulations. These comments 
asserted that the proposed modification would only benefit inactive 
permit holders and would disadvantage the historic and active 
commercial swordfish fleet and wholesalers because they believe an 
influx of imported swordfish product would result causing the domestic 
ex-vessel prices to decrease and a market glut would occur.
    Response: The proposed chartering regulations would have allowed 
all Atlantic HMS LAP holders the ability to enter into a chartering 
arrangement with an ICCAT CPC. In response to public requests to modify 
regulations allowing chartering of foreign vessels, NMFS proposed to 
allow this type of chartering arrangement as a way to help utilize 
Atlantic HMS quotas and facilitate flexibility within the vessel 
chartering program, which in turn could enhance quota management within 
the Atlantic HMS fisheries. The proposed regulations described a 
process and criteria for NMFS to approve or deny each request for a 
chartering arrangement considering the ecological, economic, and social 
impacts of the specific chartering request. Additionally under the 
proposed process, NMFS would have evaluated whether the proposed 
chartering arrangement provided adequate benefit to the United States, 
the Atlantic HMS fishery participants, and the Atlantic HMS quota 
management. However, upon further review of the potential socioeconomic 
impacts and due to the concerns expressed by the public, including 
concerns from constituents who originally requested that HMS modify the 
chartering regulations, NMFS has decided not to finalize the proposed 
vessel chartering regulatory modifications.
    Comment 3: NMFS received a comment stating that NMFS has not put 
enough effort into revitalizing the swordfish fishery and that the 
vessel chartering modifications would serve as a distraction from other 
necessary revitalization efforts.
    Response: NMFS has initiated and implemented a number of regulatory 
and non-regulatory swordfish fishery revitalization efforts. In June 
2007, NMFS published a final rule (72 FR 31688) that amended vessel 
upgrading restrictions for pelagic longline (PLL) vessels, removed a 
one-time upgrade restriction for all LAP holders, and among other 
things, increased incidental and recreational swordfish retention 
limits. In July 2008, NMFS published a final rule (73 FR 38144) to 
allow Atlantic tunas longline LAPs that had been expired for more than 
one year to be renewed by the most recent permit holder of record to 
allow increased use of swordfish permits by making available more of 
the required associated permits. NMFS has also been involved with 
development of the FishWatch website, including swordfish outreach 
materials for the website, http://www.nmfs.noaa.gov/fishwatch/, 
participation at regional and international seafood shows, development 
of swordfish fact sheets, meetings with state representatives and 
industry constituents to discuss marketing outreach strategies, and 
development of a swordfish revitalization film clip for the Smithsonian 
Sant Ocean Hall exhibit. In January 2008, NMFS issued exempted fishing 
permits to conduct research in the East Coast and Charleston Bump PLL 
closed areas to evaluate existing bycatch reduction measures and 
collect baseline data under current fishery conditions. NMFS plans more 
to work with state partners, the swordfish industry, and other 
constituents to continue to revitalize the swordfish fishery.
    Comment 4: NMFS received a comment stating that NMFS did not 
include enough detail in the proposed rule regarding limitations that 
need to be imposed on chartering arrangements, such as a sunset 
provision, quota allocations, and seasonal closures.
    Response: The proposed chartering regulations described a process 
and criteria for NMFS's evaluation of each potential chartering 
request, as well as a detailed list of specific information required to 
be included in any chartering arrangement request. The proposed 
regulations stated that NMFS would have considered each chartering 
request on a case-by-case basis. If NMFS decided to authorize a 
chartering arrangement, the written notification from NMFS would have 
included the vessel chartering requirements and the terms and 
conditions of the chartering arrangement, including expiration date, 
data submission requirements, and quota allocations. Thus, the 
commenter's concerns would have been addressed.
    Comment 5: NMFS received a comment stating that the proposed 
chartering modifications would have violated National Standard Four of 
the Magnuson-Stevens Act because of the proposal to limit chartering 
arrangements to commercial fishermen with an Atlantic HMS LAP.
    Response: National Standard 4 requires that conservation and 
management measures shall not discriminate between residents of 
different States. If it becomes necessary to allocate or assign fishing 
privileges among various United States fishermen, such allocation shall 
be (A) fair and equitable to all such fishermen; (B) reasonably 
calculated to promote conservation; and (C) carried out in such a 
manner that no particular individual, cooperation, or other entity 
acquires an excessive share of such privileges. NMFS proposed to allow 
all Atlantic HMS LAP holders who are authorized to commercially harvest 
Atlantic HMS from the U.S. EEZ and on the high seas the ability to 
charter a foreign vessel of an ICCAT CPC. With regard to chartering, 
the proposed regulations would have only allowed such activities on the 
high seas. The Atlantic HMS LAP holders who are currently authorized to 
commercially harvest HMS on the high seas would have been chartering 
vessels to, essentially, exercise that harvesting privilege on their 
behalf. In addition, under the proposed regulations, foreign vessel 
owners who entered into a chartering arrangement with an Atlantic HMS 
LAP holder would have been required to follow all U.S. regulations that 
would have otherwise applied to the Atlantic HMS LAP holder. This 
approach was aimed at keeping any resulting chartering arrangements 
within the scope of the existing analyzed effects of utilizing Atlantic 
HMS quotas on the high seas and does not violate National Standard 4. 
However, as NMFS is not finalizing the proposed vessel modifications, 
the concerns have been addressed.

4. Changes from the Proposed Rule

    Upon further review of potential socioeconomic impacts and concerns 
that the proposed regulatory modifications would only benefit inactive 
permit holders and would disadvantage the historic and active 
commercial swordfish fleet and because of the opposition from the 
public regarding the proposed modifications to the vessel chartering 
regulations, NMFS has decided not to implement the proposed regulatory 
modifications in the final rule. Therefore, the current vessel 
chartering regulations at 50 CFR 635.5(a)(5) and 635.32(e) remain 
unchanged.

[[Page 15672]]

5. Classification

    The Acting Assistant Administrator has determined that this final 
rule 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.

    Dated: April 1, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E9-7859 Filed 4-6-09; 8:45 am]
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