[Federal Register Volume 74, Number 240 (Wednesday, December 16, 2009)]
[Rules and Regulations]
[Pages 66585-66588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29939]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 300 and 635

[080724902-91404-02]
RIN 0648-AX07


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.

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SUMMARY: This final rule adjusts the North and South Atlantic swordfish 
quotas for the 2009 fishing year (January 1, 2009, through December 31, 
2009) to account for underharvests, and transfers 18.8 metric tons (mt) 
dressed weight (dw) to Canada per the 2006 and 2008 International 
Commission for the Conservation of Atlantic Tunas (ICCAT) 
recommendations 06-03 and 08-02. In addition, this final rule includes 
minor regulatory modifications and clarifications, eliminates an 
existing sunset provision in the Madison-Swanson and Steamboat Lumps 
time/area closure, and establishes a small time/area closure in the 
Gulf of Mexico called the ``Edges 40 Fathom Contour.'' These changes 
could impact fishermen with a commercial swordfish, HMS Angling, or 
Charter/Headboat (CHB) permit who fish for Atlantic swordfish.

DATES:  This rule is effective on January 15, 2010.

ADDRESSES: For copies of the supporting documents, including the 
proposed rule (74 FR 39032, August 5, 2009); the EA for the Gulf of 
Mexico time/area closures included in this rule; the Environmental 
Assessment (EA) for the 2007 Swordfish Specifications, 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 
Steve Durkee.

FOR FURTHER INFORMATION CONTACT: Steve Durkee or Karyl Brewster-Geisz 
by phone: 301-713-2347 or by fax: 301-713-1917 or Rick Pearson by 
phone: 727-824-5399.

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.
    Information on the specific measures laid out in the proposed rule 
can be found in 74 FR 39032 (August 5, 2009) and are not repeated here. 
A brief summary of the actions in this final rule can be found below.

1. Swordfish Quotas

    This final rule adjusts the North and South Atlantic swordfish 
quotas for the 2009 fishing year (January 1, 2009, through December 31, 
2009) to account for underharvests in 2008, and to transfer 18.8 metric 
tons (mt) dressed weight (dw) to Canada per the 2006 and 2008 
International Commission for the Conservation of Atlantic Tunas (ICCAT) 
recommendations 06-03 and 08-02. The 2009 North Atlantic swordfish 
baseline quota is 2,937.6 mt dw. The total North Atlantic swordfish 
underharvest for 2008 was 2,692 mt dw, which exceeds the maximum 
carryover cap of 1,468.8 mt dw, established in ICCAT recommendation 06-
02, and renewed in 08-02. Therefore, NMFS is carrying over the capped 
amount per the ICCAT 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 2009 fishing year (Table 1).
    The 2009 South Atlantic swordfish baseline quota is 75.2 mt dw. The 
total South Atlantic swordfish underharvest for 2008 was 150.4 mt dw, 
which exceeds the maximum carryover cap of 75.2 mt dw, established in 
ICCAT recommendation 06-03. Therefore, NMFS is carrying over the capped 
amount per the ICCAT recommendation. 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 2009 fishing year (Table 1).

2. Administrative Regulatory Modifications and Clarifications

    In addition to adjusting the North and South Atlantic swordfish 
quotas, NMFS is also performing the following five administrative 
modifications and clarifications to the regulations: (1) clarifying 
minimum size requirements for whole and dressed swordfish; (2) issuing 
``participant certificates'' at shark identification workshops to 
attendees who do not have a dealer license; (3) requiring that any dead 
bycatch in the pelagic longline fishery be brought on board, at the 
observer's request, for biological sampling; (4) requiring that any 
changes in information contained in an application for an Atlantic Tuna 
Longline Limited Access Permit be submitted in writing; and (5) 
clarifying the information that is to be included on consignment 
documents for the importation of Atlantic, Pacific and Southern bluefin 
tuna, frozen bigeye tuna, and swordfish.

3. Adjustment and Implementation of Time/Area Closures in the Gulf of 
Mexico

    Under current regulations (50 CFR 635.21 (a)(4)(ii) (iv)), the 
Madison-Swanson and Steamboat Lumps time/area closures within the Gulf 
of Mexico are set to expire on June 16, 2010. This rule eliminates this 
sunset provision and prevents expiration of the time/area closures on 
June 16, 2010, consistent with the Gulf of Mexico Fishery Management 
Council (GOMFMC) regulations. Additionally, this final rule establishes 
a time/area closure in the northwestern Gulf of Mexico called the 
``Edges 40 Fathom Contour,'' at the request of GOMFMC. The boundaries 
of this closure are defined by the coordinates: NW = 28[deg] 51'N, 
85[deg] 16'W; NE = 28[deg] 51 'N, 85[deg] 04'W; SW = 28[deg] 14'N, 
84[deg] 54'W; SE = 28[deg] 14'N, 84 42'W.

Response to Comments

    NMFS received two comments on the proposed rule which are 
summarized below, together with NMFS' responses.
    Comment: NMFS received two comments in opposition to the annual 
18.8 mt dw quota transfer to Canada from the reserve category. The 
first comment, made by Captain Chris Walter, expressed general 
opposition to the quota transfer. The second stated comment, made by 
David Allison of Oceana, expressed concern over higher bycatch rates in 
the Canadian swordfish fishery than in the U.S. fishery. This commenter 
wrote that negative impacts on sea turtles in the Canadian swordfish 
fishery were not specifically examined in the 2007 Environmental 
Assessment

[[Page 66586]]

for the 2007 Swordfish Specifications, and that analysis must be 
performed before any further annual quota transfers. This analysis 
should include both an Environmental Impact Statement and ESA 
Biological Opinion.
    Response: The annual transfer of quota to Canada is necessary to 
comply with ICCAT Recommendation 06-02 (extended via Rec. 08-02), as 
agreed upon by the CPCs, which explicitly states that the U.S. is to 
transfer 25 mt ww (18.8 mt dw) to Canada annually, among other things. 
Per the ATCA, the U.S. is obligated to implement ICCAT-approved 
recommendations. This mandate offers no leeway for NMFS to alter the 
annual quota transfer to Canada. The 2007 Environmental Assessment for 
the 2007 Swordfish Specifications addressed this transfer by reference 
to the 2004 Environmental Assessment accompanying the final rule to 
Implement ICCAT Atlantic Swordfish Quota Recommendations. In addition, 
the amount of quota transferred to Canada is low enough that any 
impacts, including any negative impacts to sea turtles, will be 
negligible. The 25 mt ww quota transfer is 0.18 percent of the total 
North Atlantic swordfish quota, and only 0.64 percent of the U.S. 
portion of the quota.

Changes from the Proposed Rule

    This final rule contains one change from the proposed rule. The 
regulatory language modifying the method to change address information 
on an Atlantic Tuna Longline Limited Access Permit (50 CFR 635.4(i)) 
was altered to be more general. The regulatory language in the proposed 
rule stated that permit information changes must be made, in writing, 
to an address specified by NMFS. The language in this final rule states 
that permit information changes must be made in a manner and/or to a 
location specified by NMFS. The intent and practical effect did not 
change, but the more general language will give NMFS flexibility in 
altering the method to change information to a permit in the future.

Classification

    The Acting Assistant Administrator for Fisheries has determined 
that this final rule is consistent with the 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

50 CFR Part 300

    Reporting and recordkeeping requirements.

50 CFR Part 635

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

    Dated: December 10, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR parts 300 and 635 are 
amended as follows:

PART--300 INTERNATIONAL FISHERIES REGULATIONS

Subpart M--International Trade Documentation and Tracking Programs 
for Highly Migratory Species

0
1. The authority citation for subpart M continues to read as follows:

    Authority: Authority: 16 U.S.C. 951-961 and 971 et seq.; 16 
U.S.C. 1801 et seq.

0
2. In Sec.  300.185, paragraph (a)(2)(vii) is revised to read as 
follows:


Sec.  300.185  Documentation, reporting and recordkeeping requirements 
for consignment documents and re-export certificates.

    (a) * * *
    (2) * * *
    (vii) For fish or fish products, except shark fins, regulated under 
this subpart that are entered for consumption, the permit holder must 
provide correct and complete information, as requested by NMFS, on the 
original consignment document that accompanied the consignment.
* * * * *

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

    3. 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.

0
4. In Sec.  635.2, the following definition is added within the correct 
alphabetic order:


Sec.  635.2  Definitions.

* * * * *
    Edges 40 Fathom Contour closed area means a parallelogram-shaped 
area in the Gulf of Mexico bounded by straight lines connecting the 
following coordinates in the order stated: 28[deg] 51' N. lat., 85[deg] 
16' W. long.; 28[deg] 51' N. lat., 85[deg] 04' W. long.; 28[deg] 14' N. 
lat., 84[deg] 42' W. long.; 28[deg] 14' N. lat., 84[deg] 54' W. long.
* * * * *

0
5. In Sec.  635.4, paragraph (i) is revised to read as follows:


Sec.  635.4  Permits and fees.

* * * * *
    (i) Change in application information. A vessel owner or dealer 
must report any change in the information contained in an application 
for a permit within 30 days after such change. The report must be 
submitted in a manner and/or to a location designated by NMFS. For 
certain information changes, a new permit may be issued to incorporate 
the new information, subject to limited access provisions specified in 
paragraph (l)(2) of this section. NMFS may require supporting 
documentation before a new permit will be issued. If a change in the 
permit information is not reported within 30 days, the permit is void 
as of the 31st day after such change.
* * * * *

0
6. In Sec.  635.7, paragraph (f) is added to read as follows:


Sec.  635.7  At-sea observer coverage.

* * * * *
    (f) Vessel responsibilities. An owner or operator of a vessel 
required to carry one or more observer(s) must provide reasonable 
assistance to enable observer(s) to carry out their duties, including, 
but not limited to:
    (1) Measuring decks, codends, and holding bins.
    (2) Providing the observer(s) with a safe work area.
    (3) Collecting bycatch when requested by the observer(s).
    (4) Collecting and carrying baskets of fish when requested by the 
observer(s).
    (5) Allowing the observer(s) to collect biological data and 
samples.
    (6) Providing adequate space for storage of biological samples.

0
7. In Sec.  635.8, paragraphs (b)(4) and (5) and (c) (4) and (5) are 
revised and paragraph (b) (6) is added to read as follows:


Sec.  635.8  Workshops.

* * * * *
    (b) * * *
    (4) Only dealers issued a valid shark dealer permit may send a 
proxy to the Atlantic shark identification workshops.

[[Page 66587]]

If a dealer opts to send a proxy, the dealer must designate at least 
one proxy from each place of business listed on the dealer permit, 
issued pursuant to Sec.  635.4(g)(2), which first receives Atlantic 
shark by way of purchase, barter, or trade. The proxy must be a person 
who is currently employed by a place of business covered by the 
dealer's permit; is a primary participant in the identification, 
weighing, and/or first receipt of fish as they are offloaded from a 
vessel; and fills out dealer reports as required under Sec.  635.5. 
Only one certificate will be issued to each proxy. If a proxy is no 
longer employed by a place of business covered by the dealer's permit, 
the dealer or another proxy must be certified as having completed a 
workshop pursuant to this section. At least one individual from each 
place of business listed on the dealer permit which first receives 
Atlantic sharks by way of purchase, barter, or trade must possess a 
valid Atlantic shark identification workshop certificate.
    (5) A Federal Atlantic shark dealer issued or required to be issued 
a shark dealer permit pursuant to Sec.  635.4(g)(2) must possess and 
make available for inspection a valid dealer or proxy Atlantic shark 
identification workshop certificate issued to the dealer or proxy at 
each place of business listed on the dealer permit which first receives 
Atlantic sharks by way of purchase, barter, or trade. For the purposes 
of this part, trucks or other conveyances of a dealer's place of 
business are considered to be extensions of a dealer's place of 
business and must possess a copy of a valid dealer or proxy Atlantic 
shark identification workshop certificate issued to a place of business 
covered by the dealer permit. A copy of a valid Atlantic shark 
identification workshop certificate must be included in the dealer's 
application package to obtain or renew an Atlantic shark dealer permit. 
If multiple businesses are authorized to receive Atlantic sharks under 
the Atlantic shark dealer's permit, a copy of the Atlantic shark 
identification workshop certificate for each place of business listed 
on the Atlantic shark dealer permit which first receives Atlantic 
sharks by way of purchase, barter, or trade must be included in the 
Atlantic shark dealer permit renewal application package.
    (6) Persons holding an expired Atlantic shark dealer permit and 
persons who intend to apply for a new Atlantic shark dealer permit will 
be issued a participant certificate in their name upon successful 
completion of the Atlantic shark identification workshop. A participant 
certificate issued to such persons may be used only to apply for an 
Atlantic shark dealer permit. Pursuant to Sec.  635.8(c)(4), an 
Atlantic shark dealer may not first receive, purchase, trade, or barter 
for Atlantic shark without a valid dealer or proxy Atlantic shark 
identification workshop certificate issued to the dealer or proxy. 
After an Atlantic shark dealer permit is issued to a person using an 
Atlantic shark identification workshop participant certificate, such 
person may obtain an Atlantic shark identification workshop dealer 
certificate for each location which first receives Atlantic sharks by 
way of purchase, barter, or trade by contacting NMFS at an address 
designated by NMFS.
    (c) * * *
    (4) An Atlantic shark dealer may not first receive, purchase, 
trade, or barter for Atlantic shark without a valid dealer or proxy 
Atlantic shark identification workshop certificate issued to the dealer 
or proxy. A valid dealer or proxy Atlantic shark identification 
workshop certificate issued to the dealer or proxy must be maintained 
on the premises of each place of business listed on the dealer permit 
which first receives Atlantic sharks by way of purchase, barter, or 
trade. An Atlantic shark dealer may not renew a Federal dealer permit 
issued pursuant to Sec.  635.4(g)(2) unless a copy of a valid dealer or 
proxy Atlantic shark identification workshop certificate issued to the 
dealer or proxy has been submitted with the permit renewal application. 
If the dealer is not certified and opts to send a proxy or proxies to a 
workshop, the dealer must submit a copy of a valid proxy certificate 
for each place of business listed on the dealer permit which first 
receives Atlantic sharks by way of purchase, barter, or trade.
    (5) A vessel owner, operator, shark dealer, proxy for a shark 
dealer, or participant who is issued either a protected species 
workshop certificate or an Atlantic shark identification workshop 
certificate may not transfer that certificate to another person.
* * * * *

0
8. In Sec.  635.20, paragraphs (a) and (f) are revised to read as 
follows:


Sec.  635.20  Size limits.

    (a) General. The CFL will be the sole criterion for determining the 
size and/or size class of whole (head on) Atlantic tunas for a vessel 
that has been issued a limited access North Atlantic swordfish permit 
under Sec.  635.4.
* * * * *
    (f) Swordfish. (1) For a swordfish that has its head naturally 
attached, the LJFL is the sole criterion for determining the size of a 
swordfish. No person shall take, retain, possess, or land a whole (head 
on) North or South Atlantic swordfish taken from its management unit 
that is not equal to or greater than 47 inches (119 cm) LJFL. A 
swordfish with the head naturally attached that is damaged by shark 
bites may be retained only if the length of the remainder of the fish 
is equal to or greater than 47 inches (119 cm) LJFL.
    (2) If the head of a swordfish has been removed prior to or at the 
time of landing, the CK measurement is the sole criterion for 
determining the size of a swordfish. No person shall take, retain, 
possess, or land a dressed North or South Atlantic swordfish taken from 
its management unit that is not equal to or greater than 29 inches (73 
cm) CK length. A swordfish with the head removed that is damaged by 
shark bites may be retained only if the length of the remainder of the 
carcass is equal to or greater than 29 inches (73 cm) CK length.
    (3) No person shall import into the United States an Atlantic 
swordfish weighing less than 33 lb (15 kg) dressed weight, or a part 
derived from a swordfish that weighs less than 33 lb (15 kg) dressed 
weight.
    (4) Except for a swordfish landed in a Pacific state and remaining 
in that Pacific state of landing, a swordfish, or part thereof, not 
meeting the minimum size measurements specified in Sec.  635.20(f)(1) 
or (2) will be deemed to be an Atlantic swordfish harvested by a vessel 
of the United States and to be in violation of the minimum size 
requirement of this section unless such swordfish, or part thereof, is 
accompanied by a swordfish statistical document attesting that the 
swordfish was lawfully imported. Refer to Sec.  300.186 of this title 
for the requirements related to the swordfish statistical document.
    (5) A swordfish, or part thereof, will be monitored for compliance 
with the minimum size requirement of this section from the time it is 
landed in, or imported into, the United States up to, and including, 
the point of first transaction in the United States.

0
9. In Sec.  635.21, paragraphs (a) (4) (ii) and (iii) are revised and 
paragraph (a) (4) (v) is added to read as follows:


Sec.  635.21   Gear operation and deployment restrictions.

* * * * *
    (a) * * *
    (4) * * *
    (ii) From November through April of each year, no vessel issued, or 
required to be issued, a permit under this part may fish or deploy any 
type of fishing gear in the Madison-Swanson closed

[[Page 66588]]

area or the Steamboat Lumps closed area, as defined in Sec.  635.2.
    (iii) From May through October of each year, no vessel issued, or 
required to be issued, a permit under this part may fish or deploy any 
type of fishing gear in the Madison-Swanson or the Steamboat Lumps 
closed areas except for surface trolling, as specified below under 
paragraph (a)(4)(iv) of this section.
* * * * *
     (v) From January through April of each year, no vessel issued, or 
required to be issued, a permit under this part may fish or deploy any 
type of fishing gear in the Edges 40 Fathom Contour closed area, as 
defined in Sec.  635.2.
* * * * *

0
10. In Sec.  635.71, paragraphs (d) (11) and (14) are revised to read 
as follows:


Sec.  635.71  Prohibitions.

* * * * *
    (d) * * *
    (11) Receive, purchase, trade, or barter for Atlantic sharks 
without a valid dealer or proxy Atlantic shark identification workshop 
certificate issued to the dealer or proxy or fail to be certified for 
completion of a NMFS Atlantic shark identification workshop in 
violation of Sec.  635.8.
* * * * *
    (14) Receive, purchase, trade, or barter for Atlantic sharks 
without making available for inspection, at each of the dealer's places 
of business listed on the dealer permit which first receives Atlantic 
sharks by way of purchase, barter, or trade, a valid dealer or proxy 
Atlantic shark identification workshop certificate issued by NMFS to 
the dealer or proxy in violation of Sec.  635.8(b), except that trucks 
or other conveyances of the business must possess a copy of such 
certificate.
* * * * *
[FR Doc. E9-29939 Filed 12-15-09; 8:45 am]
BILLING CODE 3510-22-S