Atlantic Highly Migratory Species; Atlantic Swordfish Quotas

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS amends the regulations governing the North and South Atlantic swordfish fisheries to implement recommendations adopted at the 2002 meeting of the International Commission for the Conservation of Atlantic Tunas (ICCAT). Specifically, NMFS: increases the North Atlantic swordfish quota to 3,877 metric tons (mt) whole weight (ww) in 2003 and to 3,907 mt ww in 2004 and 2005; establishes a dead discard allowance of 80 mt ww for 2003; transfers 25 mt ww of North Atlantic swordfish quota to Canada in 2003, 2004, and 2005; allows up to 200 mt ww of North Atlantic swordfish quota to be caught between 5 degrees North latitude and 5 degrees South latitude; and establishes a South Atlantic swordfish quota of 100 mt ww in 2003, 2004, and 2005 and 120 mt ww in 2006. In addition, NMFS adjusts the 2003 and 2004 directed and reserve quotas based on underharvests from the 2002 and 2003 fishing years, respectively.

DATES:

This final rule is effective December 23, 2004.

ADDRESSES:

Copies of the Environmental Assessment/Regulatory Impact Review (EA/RIR) may be obtained from Christopher Rogers, Chief, Highly Migratory Species Management Division F/SF1, 1315 East-West Highway, Silver Spring, MD 20910. These documents are also available from the Highly Migratory Species Management Division website at www.nmfs.noaa.gov/sfa/hms/ .

FOR FURTHER INFORMATION CONTACT:

Chris Rilling, by phone: 301-713-2347 or by fax: 301-713-1917.

SUPPLEMENTARY INFORMATION:

The United States Atlantic swordfish and tuna fisheries are managed under the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (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. The June 20, 2003, proposed rule (68 FR 36967) contains the background information for the management measures in this final rule; the background information is not repeated in this final rule.

Comments and Responses

NMFS held three public hearings in July and August 2003 in Gloucester, MA; Madeira Beach, FL; and Silver Spring, MD. Comments were received from fishery participants and other members of the public regarding the proposed regulations. In addition, written comments were submitted to NMFS during the 45-day comment period. Written and oral comments are summarized below with NMFS' responses.

North Atlantic Swordfish Quota

Comment 1: One commenter supports opportunities for U.S. fishermen to land more swordfish as long as it is done in a manner that does not compromise the full rebuilding of the population and long-term sustainability of the resource.

Response: NMFS agrees that ensuring sustainability and rebuilding the population are important aspects of providing long term opportunities for fishermen to harvest the resource. The selected alternatives are consistent with the objectives of the ICCAT rebuilding program, Magnuson-Stevens Act, ATCA, and the HMS FMP and will ensure the sustainability of the stock.

Comment 2: To facilitate harvest of the United States allocated quota, the United States should make a limited number of new handgear permits available for distribution.

Response: Making a limited number of new handgear permits available is one option for addressing the underharvest occurring in recent years. Since this would require a plan amendment, NMFS solicited comments regarding this and other options during the scoping process for Amendment 2 to the HMS FMP and may consider those options in Amendment 2 or other future rulemaking.

Comment 3: If the United States is unable to catch its quota, there will be efforts by other ICCAT countries to permanently reduce the U.S. quota share and allocate that quota to other fishing nations. This will have conservation ramifications given that U.S. fisheries are better managed than fisheries in other ICCAT nations.

Response: This rule implements recommendations agreed to at the 2002 meeting of ICCAT. The North Atlantic swordfish quota levels are established through 2005. ICCAT will reevaluate the current quotas and recommend new ones at that time. NMFS will continue to evaluate the need for all current regulations with regard to the effect on harvest rates and will work with fishermen to preserve the U.S. quota share while ensuring consistency with the Magnuson-Stevens Act, the Endangered Species Act (ESA), and other domestic laws.

Comment 4: U.S. underharvests are primarily a result of the premature closures of the directed fishery in 1997 and 1998 and the overly restrictive time/area closures currently in place. Scientific data shows swordfish recovering before implementation of the time/area closures. Because of current management, this once thriving domestic fishery has exhibited reduced effort and profitability.

Response: NMFS implemented the current time and area closures and other restrictions to reduce bycatch in the pelagic longline fishery. This bycatch included juvenile swordfish, billfish, sharks, and sea turtles. NMFS will evaluate the impact and effectiveness of the closures in Amendment 2 to the HMS FMP or other future rulemaking and will modify them if necessary to meet management objectives and legislative requirements.

Comment 5: One commenter opposed an increase in the North Atlantic swordfish quota. Even though the stock assessment indicates improvement, the stock is still overfished. Any increase in quota will slow down or reverse the improvement and lead to an increase in dead discards of juvenile swordfish, marlin, and sharks. Increasing the quota goes against NMFS' stated goal of risk-averse management. The increase is hard to understand given the United States has not landed the quota since 1995.

Response: At its 2002 meeting, ICCAT conducted a North Atlantic swordfish stock assessment and determined that the population had nearly recovered to a level that will support maximum sustainable yield and that an increase will still allow the stock to rebuild by 2009, the established goal for rebuilding Atlantic swordfish. Based on this finding, ICCAT recommended an increase in swordfish quota and will hold another stock assessment in 2005 to monitor its results. NMFS does not expect the increase in U.S. quota to result in an increase in dead discards. Further, based on current regulations and the level of effort in the U.S. fishery, it is unlikely that catch rates of target and bycatch species will increase.

Comment 6: The United States should force ICCAT to reduce the overall quota and refuse to accept increases in quota for overfished stocks.

Response: ICCAT is currently comprised of 38 contracting parties that cooperate to formulate management recommendations. The United States is not in a position to force ICCAT to adopt a particular quota because the organization works primarily by consensus. In this case, the stock assessment demonstrated that the swordfish population has nearly recovered to a level that will support maximum sustainable yield and that an increase in allowable harvest would not prevent rebuilding within the originally agreed timeframe. The North Atlantic swordfish quota was increased based on this scientific advice.

South Atlantic Swordfish Quota

Comment 7: One commenter asked NMFS to explain why the United States lost South Atlantic swordfish quota despite quota increases for other nations fishing in that area.

Response: The United States South Atlantic swordfish quota was reduced due to its lower catches in that area in recent years. However, up to 200 mt ww of swordfish landed between 5 degrees North and 5 degrees South latitude may be applied against the North Atlantic swordfish quota. Because most of the historical U.S. catch of South Atlantic swordfish has been harvested from that area, this should mitigate most impacts from the reduction of the South Atlantic swordfish quota.

Comment 8: One commenter opposed the proposed increase in South Atlantic quota to over 100 mt because it would increase pressure on a stock for which data are incomplete.

Response: The Standing Committee on Research and Statistics (SCRS) conducted a stock assessment of South Atlantic swordfish in 2002. Due to discrepancies between several of the data sets, reliable stock assessment results could not be produced. In general, the SCRS noted that the total catches have decreased since 1995, as recommended. As a result, ICCAT increased the total allowable catch (TAC) for South Atlantic swordfish from 14,620 mt ww to 15,631 mt ww. The new ICCAT recommendation lowered the U.S. quota for South Atlantic swordfish from 384 mt ww in 2002 to 100 mt ww in 2003-2005. ICCAT further recommended that up to 200 mt ww of swordfish landed between 5 degrees North and 5 degrees South latitude be applied against the North Atlantic swordfish quota.

Quota Transfer

Comment 9: One commenter stated that the transfer of 25 mt ww of North Atlantic swordfish quota to Canada is an industry initiative to keep from losing part of the U.S. quota allocation if it is not likely to be harvested in the near future. Another commenter stated that the United States should keep control of this quota and not transfer it to Canada because any uncaught quota will help the stock rebuild faster and reduce bycatch.

Response: If the quota transfer to Canada did not transpire and there was a 25 mt ww underharvest, the remaining quota would be incorporated into the next year's U.S. North Atlantic swordfish quota. While keeping the 25 mt ww may help the stock rebuild in the short term (because neither the United States nor Canada would catch it), the quota would likely be harvested in the future. Transferring the quota to Canada may help maintain the U.S. allocation, but due to the current level of underharvests, more measures may be necessary to facilitate harvest of the full U.S. allocation.

Comment 10: Quota transfers and rulemaking concerning ICCAT recommendations should be conducted in a more timely manner. The start of the fishing year was changed to June 1 to give NMFS the opportunity to propose and finalize any actions needed as a result of ICCAT recommendations. Untimely actions can negatively impact U.S. fishermen with respect to foreign competitors.

Response: NMFS attempts to conduct rulemaking in as timely a manner as possible. However, compliance with other applicable laws, such as the Endangered Species Act, may require the preparation of additional analyses and consultations, which can cause delays.

Dead Discard Allowance

Comment 11: Because the dead discard allowance is slated to be phased out in 2004, NMFS should develop a rule to eliminate the waste resulting from the strict implementation of the minimum size. U.S. pelagic longline vessels should not be required to discard undersized swordfish that cannot be returned to the sea alive and that are caught outside the closed areas. The minimum size should be enforced for other gear types within the closed areas.

Response: Currently, the minimum size restriction is a component of an ICCAT management recommendation. The U.S. adoption of the alternative minimum size with no tolerance is designed to reduce dead discards while still avoiding excess mortality of juvenile fish. Until ICCAT changes the minimum size, and NMFS implements the changes via a rulemaking process, NMFS will continue to enforce it for all gear types in all areas.

Comment 12: Commenters oppose the 80 mt ww dead discard allowance over and above the increase in quota. Dead discards should be counted against the existing quota.

Response: Previously, ICCAT recommended that the dead discard allowance for North Atlantic swordfish be phased out by 2004. At that time, a dead discard target was not provided for the 2003 fishing year. ICCAT corrected this omission in the 2002 recommendation and maintained the established schedule for the elimination of the dead discard allowance. Starting in 2004, dead discards will be counted against the applicable quotas for the harvesting nations.

North Atlantic Swordfish Quotas

The adjusted 2002 fishing year landings quota was 3,363.5 mt dressed weight (dw). Directed and incidental fishery landings of North Atlantic swordfish during the 2002 fishing year were reported to be 1747.2 mt dw, with a total underharvest of 1,616.3 mt dw. In addition to the landings quota, ICCAT allocated to the United States a 2002 dead discard allowance of 120.3 mt dw, of which an estimated 261.6 mt dw were discarded. The 141.3 mt dw excess dead discards are required to be deducted from quota available to be harvested in the subsequent fishing year. Thus, from the 2002 fishing year 1,475.0 mt dw is available as carryover (1,616.3 - 141.3).

In addition, the dead discards from 2001 were not accounted for at the beginning of the 2002 fishing year because the estimates were not available at that time. The total dead discard allowance in 2001 was 180.4 mt dw, and the United States discarded an estimated 306.8 mt dw. The 126.4 mt dw excess dead discards are required to be deducted from quota available to be harvested in the subsequent fishing year. However, due to the fact that the 2002-2003 fishing years have been completed, it is necessary to deduct this amount from 2004.

The 2003 fishing year base landings quota established by ICCAT was 2,915 mt dw, not adjusted for underharvests. NMFS is adjusting this quota by the carryover available from 2002 and the excess dead discards in 2001. Thus, the adjusted total landings quota for 2003 is 4,263.6 mt dw (2,915 + 1,475 - 126.4).

Although the 2003 fishing year for North and South Atlantic swordfish ended on May 31, 2004, NMFS is including the ICCAT established quotas and landings for 2003 in this rule in order to provide a complete accounting of underharvests in 2003 which were used to establish the 2004 adjusted quotas. Thus, the directed and incidental fishery landings of North Atlantic swordfish during the 2003 fishing year were reported to be 1,509 mt dw. Under this rule, NMFS is also transferring 18.8 mt dw out of the reserve category to Canada. In 2003, 2,735.8 mt dw of the available quota was not harvested (4,263.6 - 1,509 - 18.8). In addition to the landings quota, ICCAT allocated to the United States a 2003 dead discard allowance of 60.0 mt dw, of which an estimated 278 mt dw were discarded. The 218 mt dw excess dead discards are required to be deducted from quota available to be harvested in the subsequent fishing year. Therefore, a net total of 2,517.8 mt dw (2,735.8 - 218) of unharvested swordfish quota may be carried over to 2004 from the 2003 fishing year.

For 2004, the fishing year base landings quota established by ICCAT is 2,937.6 mt dw, not adjusted for underharvests. NMFS is adjusting this quota based on underharvest from 2003, and the excess discards from 2002. Thus, the new adjusted quota for 2004 is 5,455.4 mt dw (2,937.6 + 2,517.8), of which 5,035.1 mt dw is for the directed category, 300 mt dw is for the incidental category, and 120.3 mt dw is for the reserve category. In addition, 18.8 mt dw of the reserve category quota will be transferred to Canada for the 2004 fishing year.

South Atlantic Swordfish

Beginning June 1, 2003, through May 31, 2005, the annual ICCAT established quota for the South Atlantic swordfish stock is 75.2 mt dw. Beginning June 1, 2006, the annual directed fishery quota for the South Atlantic swordfish stock is 90.2 mt dw. ICCAT recommended that the U.S. underharvest from 2000 be carried over to 2003. Underharvests from 2001 and 2002 were ineligible for carryover because individual country quota levels for those years were not agreed to by ICCAT, but established autonomously.

For 2000, the landings quota was set at 289 mt dw of which 93.8 mt dw were landed, leaving an underharvest of 195.2 mt dw. This underharvest is added to the base 2003 fishing year quota for an adjusted 2003 fishing year quota of 270.4 mt dw (75.2 + 195.2). In 2003, only 11.3 mt dw was harvested during the fishing year, leaving 259.1 mt dw available for carryover to the subsequent fishing year (270.4 - 11.3).

For 2004, the base fishing year landings quota established by ICCAT was 75.2 mt dw. NMFS is adjusting this base quota to account for the underharvest from 2003. Thus, the new adjusted quota for 2004 is 334.3 mt dw (75.2 + 259.1).

Changes from the Proposed Rule

The final rule contains no significant changes from the proposed rule published on June 20, 2003 (68 FR 36967).

Classification

This final rule is published under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq., and ATCA, 16 U.S.C. 971 et seq. The Assistant Administrator (AA) 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 highly migratory species fisheries.

NMFS prepared an Environmental Assessment (EA) for this final rule, and the AA has concluded that there would be no significant impact on the human environment. The EA presents analyses of the anticipated impacts of these final actions and the alternatives considered. A copy of the EA, and other analytical documents prepared for this rule, are available from NMFS (see ADDRESSES).

This final rule has been determined to be not significant for purposes of Executive Order 12866.

Based on the management measures in several proposed rules, including the proposed rule for these regulations, a new Biological Opinion (BiOp) on the Atlantic pelagic longline (PLL) fishery was issued on June 1, 2004. The 2004 BiOp found that the continued operation of the fishery was not likely to jeopardize the continued existence of loggerhead, green, hawksbill, Kemp's ridley, or olive ridley sea turtles, but was likely to jeopardize the continued existence of leatherback sea turtles. The 2004 BiOp identified Reasonable and Prudent Alternatives (RPAs) necessary to avoid jeopardizing leatherbacks, and listed the Reasonable and Prudent Measures (RPMs) and terms and conditions necessary to authorize continued take as part of the revised incidental take statement. On July 6, 2004, NMFS published a final rule (69 FR 40734) implementing additional sea turtle bycatch and bycatch mortality mitigation measures for all Atlantic vessels with PLL gear onboard. NMFS is implementing the other RPMs in compliance with the BiOp. On August 12, 2004, NMFS published an Advance Notice of Proposed Rulemaking (69 FR 49858) to request comments on potential regulatory changes to further reduce bycatch and bycatch mortality of sea turtles, as well as comments on the feasibility of framework mechanisms to address unanticipated increases in sea turtle interactions and mortalities, should they occur. NMFS will undertake additional rulemaking and non-regulatory actions, as required, to implement any management measures that are required under the 2004 BiOp. The majority of the measures that will be implemented by this current rule are not expected to have adverse impacts. The annual swordfish quota is being increased to 3,877 mt ww from 2,951 mt ww which, if effort increases, could potentially increase the number of protected species interactions. However, since 2000, U.S. fishermen have not caught either the North or South Atlantic swordfish quotas. For example, in 2003, there was a 1,348.6 mt dw underharvest of North Atlantic swordfish and a 195.2 mt dw underharvest of South Atlantic swordfish. Based on existing regulations, including time/area closures, minimum size, and permit restrictions, NMFS feels it is unlikely that there will be an increase in effort in the fishery. Thus, interactions with sea turtles should remain stable. Accordingly, no irreversible or irretrievable commitments of resources are expected from this action as the measures to be implemented by this final rule are not expected to adversely affect endangered species.

In examining the potential impact of these regulations, NMFS has determined that the only measure that could adversely affect stocks of protected species is the increase in the base North Atlantic swordfish quota from 2,951 mt ww to 3,877 mt ww and then to 3,907 mt ww in the upcoming fishing years. The increase in available quota could trigger an increase in fishing effort which could then increase the incidental catch of protected species. However, an increase in the incidental take of protected species by the PLL fleet due to an increase in effort is unlikely. For the past several years, the level of effort in the PLL fishery has been steadily declining and a number of restrictions such as limited access and time/area closures have been placed on the PLL fleet. This declining effort has led to underharvests of 1,025.4 mt dw in the 2001 fishing year (68 FR 14167 March 24, 2003, correction 68 FR 16216, April 3, 2003), 1,475 mt dw in 2002, and 2,517.8 mt dw in 2003 (the latter two estimates include dead discard overharvests from 2002 and 2003).

In addition, NMFS has implemented regulations requiring PLL vessels to use only 18/0 hooks with whole mackerel and/or squid in the Northeast Distant (NED) Statistical Reporting Area, and 16/0 hooks and/or 18/0 hooks everywhere outside the NED using whole finfish or squid, and to possess and use sea turtle release equipment with specified sea turtle handling and release protocols. Handling and release guidelines are also required to be posted in the wheelhouse. Because this final rule does not relieve any of these restrictions, the level of effort in the fleet is unlikely to increase despite the change in quota level. Thus, the current level of incidental takes of protected species will remain at current levels or will decrease.

NMFS determined that this rule will be implemented in a manner that is consistent to the maximum extent practicable with the enforceable policies of the approved coastal zone management programs of coastal states in the Atlantic, Gulf of Mexico, and Caribbean. All of the states that replied to the letter regarding compliance of the proposed rule with the Coastal Zone Management Act found NMFS' proposed actions to be consistent with their coastal zone management programs. NMFS presumes that the states that did not respond also concur.

At the proposed rule stage, NMFS conducted an Initial Regulatory Flexibility Analysis (IRFA) as required by the Regulatory Flexibility Act (RFA). NMFS received no comments regarding the potential economic impact of the proposed rule or on the IRFA. In preparing this final rule, NMFS has conducted a final EA and a final regulatory impact review that examines the impacts of the selected alternatives, discussed previously in this rulemaking. These analyses indicate that this rule would have negligible economic impacts on small entities. Therefore, in compliance with the RFA, the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this final rule will not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is stated below.

As required by ATCA, this rule implements the recommendations of the 2002 meeting of the International Commission for the Conservation of Atlantic Tunas (ICCAT) regarding swordfish. The final rule adjusts the quota for North and South Atlantic swordfish, establishes the 2003 dead discard allowance, transfers 25 mt ww of North Atlantic swordfish quota to Canada, and allows up to 200 mt ww of swordfish caught in the area between 5 degrees North and 5 degrees South to be applied to the North Atlantic swordfish quota. These actions are necessary to ensure continued progress toward the conservation goals of ICCAT, the Magnuson-Stevens Act, ATCA, and the FMP for all tunas, swordfish, and sharks.

There are currently 397 commercial permit holders of which fewer than 200 have reported swordfish landings; most commercial permit holders use pelagic longline gear. There are also approximately 20,000 permit holders who could land swordfish recreationally (i.e., not for profit). Other sectors of highly migratory species fisheries such as dealers, processors, bait houses, and gear manufacturers might be affected by the final regulations, however, the final rule does not apply directly to them.

The overall result of the final rule would be to increase the 2004 North Atlantic swordfish quota by approximately 2,500 mt dw and the 2004 South Atlantic swordfish quota by 259.1 mt dw. These increases could potentially result in revenue increases, however, U.S. fishermen have not met either the North or South Atlantic swordfish quotas since 2000. For example, in 2003, there was a 1,348.6 mt dw underharvest of North Atlantic swordfish and a 195.2 mt dw underharvest of South Atlantic swordfish. The net impact of the of the final actions results in a quota level that is greater than current catches. Thus, NMFS does not believe that the net benefits and costs will change significantly as a result of the implementation of the selected alternatives compared to the baseline of no action.

Criteria used to evaluate potential impacts include analysis of gross revenues in recent years from pelagic longline logbook data. In future fishing years, the present value of gross and net revenues for the swordfish fishery at the ex-vessel level could be increased, but that would depend on the extent to which fishermen can expand their effort to catch the quota. For example, increasing the North Atlantic swordfish quotas could increase ex-vessel grows revenues by $4.9 million if the entire quota is caught. Currently, based on existing regulations, including time/area closures, minimum size, and permit restrictions, NMFS feels it is unlikely that there will be an increase in effort in the fishery. Thus, the economic impacts of the rule should be negligible. If effort is increased, U.S. fishermen would likely experience positive benefits as a result of this final rule. As a result, a FRFA was not prepared.

List of Subjects in 50 CFR Part 635

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

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) is revised to read as follows: