[Federal Register Volume 76, Number 176 (Monday, September 12, 2011)]
[Rules and Regulations]
[Pages 56120-56123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-23269]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 110527309-1508-02]
RIN 0648-BA90


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 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

[[Page 56121]]

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: 301-427-8503 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. 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, C[ocirc]te 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 C[ocirc]te 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

[[Page 56122]]

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 Sec.  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)]
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     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[dagger]....................      1,468.8      1,468.8      1,468.8      1,468.8          TBD
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    South Atlantic swordfish quota  (mt dw)          2007         2008         2009        2010**        2011
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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
----------------------------------------------------------------------------------------------------------------
[dagger] 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), C[ocirc]te 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.


[[Page 56123]]


    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

0
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.



0
2. In Sec.  635.27, paragraph (c)(1)(i)(B) is revised to read as 
follows:


Sec.  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.
* * * * *
[FR Doc. 2011-23269 Filed 9-9-11; 8:45 am]
BILLING CODE 3510-22-P