[Federal Register Volume 62, Number 38 (Wednesday, February 26, 1997)]
[Proposed Rules]
[Pages 8672-8679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4658]


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DEPARTMENT OF COMMERCE
50 CFR Part 630

[Docket No. 970206023-7023-01; I.D. 010897A]
RIN 0648-AE09


Atlantic Swordfish Fisheries; Limited Access Program

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to implement the limited access system contained 
in Amendment 1 to the Fishery Management Plan for Atlantic Swordfish 
(FMP). If approved, Amendment 1 would establish a two-tiered permit 
system for the Atlantic swordfish commercial fishery, set forth 
eligibility criteria for these permits based on historical 
participation, and limit the transferability of these permits. NMFS has 
determined that the Atlantic swordfish fishery is overfished and 
overcapitalized, with an excessive number of permitted vessels relative 
to

[[Page 8673]]

the total allowable catch (TAC) recommended for each member state by 
the International Commission for the Conservation of Atlantic Tunas 
(ICCAT). NMFS is holding public hearings and requesting written 
comments from the public on this proposed rule. The objective of this 
amendment is to take a first and significant step to prevent further 
overcapitalization.

DATES: Writen comments on this proposed rule must be received on or 
before April 28, 1997.

ADDRESSES: Comments on this proposed rule should be sent to William 
Hogarth, Acting Chief, Highly Migratory Species Management Division (F/
SF1), National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910. Copies of Amendment 1, which includes an 
Environmental Assessment (EA) and Regulatory Impact Review (RIR), are 
available from James Chambers, Fishery Management Specialist, at the 
same address. The locations and dates of public hearings on the 
proposed rule have been published in the Federal Register (62 FR 1705). 
Additional public hearings may be held if needed. Comments regarding 
the collection-of-information requirement contained in this rule should 
be sent to William Hogarth at the above address and to the Office of 
Information and Regulatory Affairs, Office of Management and Budget 
(OMB), Washington, D.C. 20503 (Attention: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: James Chambers or John Kelly, 301-713-
2347; fax: 301-713-1917.

SUPPLEMENTARY INFORMATION:

Background

    The Atlantic swordfish fishery is managed under the FMP for 
Atlantic Swordfish, developed by the South Atlantic Fishery Management 
Council, and its implementing regulations published September 18, 1985, 
and found at 50 CFR part 630 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 FMP included a requirement for vessel permits beginning January 
1, 1986. However, to date, there have been no eligibility requirements 
for obtaining a swordfish permit. Accordingly, the Atlantic swordfish 
fishery has operated under open access.
    The north Atlantic swordfish stock is depleted due to overfishing. 
According to the latest ICCAT stock assessment, the fishable biomass 
(total weight) of north Atlantic swordfish is estimated to have 
declined 68 percent between 1960 and 1996, and by the beginning of 
1996, was estimated to be at 58 percent of that needed to produce the 
maximum sustainable yield (MSY). The average size of north Atlantic 
swordfish has declined from over 266 lb (121 kg) live weight in 1963 to 
90 lb (41 kg) in 1995. According to ICCAT's data, 88 percent of the 
swordfish caught in 1995 by the domestic industry, and 86 percent of 
those landed by the international fleets, were immature. Populations of 
swordfish along the U.S. coast of the Atlantic Ocean and Gulf of Mexico 
have declined such that a historical recreational fishery and 
commercial harpoon fishery (dating from the 19th century) have been 
virtually eliminated because the large swordfish, which these handgear 
fisheries targeted, are now scarce.
    Due to the overfished status of the north Atlantic swordfish stock, 
current harvest levels (estimated to be about 17,000 MT per year) are 
scheduled for immediate reductions. At its November 1996 meeting, ICCAT 
adopted reductions in the TAC for north Atlantic swordfish to 11,300 MT 
for 1997, 11,000 MT for 1998, and 10,700 MT for 1999. In 1997, the U.S. 
allocation will be 29 percent of the TAC. To comply with ICCAT's 
recommendations for north Atlantic swordfish, NMFS has implemented 
several management measures including, on June 12, 1991 (56 FR 26934), 
quotas and a minimum size limit and, on August 30, 1991 (56 FR 42982), 
a notice of control date for entry into the fishery. The August 30, 
1991 control date notice announced that anyone entering the fishery 
after that date (the ``control date'') may not be assured of future 
access to the fishery if some form of limited access were implemented 
later.

Need for Limited Access

    The Atlantic swordfish fishery is overcapitalized in that there are 
more vessels permitted in the fishery than are necessary or desirable 
to harvest the total allowable catch (TAC). At least 1,531 vessel 
owners are ``current permit holders,'' but only about 300 regularly 
land swordfish. The inactive, permitted vessels (about 1,200) represent 
a potential for increased overcapitalization, shortened fishing 
seasons, and significant economic impact if many enter the fishery.
    The creation of a limited access system would be an initial step 
toward achieving a more reasonable balance between the harvesting 
capacity of the permitted fleet and the TAC. At a minimum, it would 
prevent further increases in the number of permits in the fisheries 
that target swordfish and would dramatically reduce the number of 
speculative permit holders (those without significant documented 
landings of Atlantic swordfish).
    The objectives of this proposed rule are to (a) reduce the amount 
of latent effort in the U.S. Atlantic swordfish fishery without 
significantly affecting the livelihoods of those who have are 
substantially dependent on swordfish fisheries, (b) reduce the size of 
the incidental fishery over time, and (c) allow traditional handgear 
fishers (whose permits have lapsed due to the scarcity of large fish, 
which they target) to participate fully as the stock recovers. The 
long-term objective of the limited access program currently under 
development for the Atlantic swordfish fishery is to create a 
management system to make fleet capacity commensurate with resource 
productivity so as to achieve the dual goals of economic efficiency and 
biological conservation. The agency's long-term objective is to rebuild 
the stock to the level at which the maximum sustained yield will be 
produced at a minimum, and ultimately, to the level at which the 
maximum economic yield will be produced.
    While limited access alone will not resolve all of the problems 
associated with open access fisheries (derby fishing conditions, ``the 
race for fish,'' market gluts), it would help prevent them from 
becoming more severe. A limited access system would stabilize fleet 
size and provide an opportunity for NMFS to collect data, conduct 
studies, and work cooperatively with fishery participants and other 
constituents to develop a more flexible, permanent effort control 
program in the future.

Permit Categories

    NMFS proposes to implement a two-tiered commercial fishing permit 
system in which permits would be classified as ``directed'' or 
``incidental.'' The reason for issuing two broad categories of permits 
is to define and regulate the directed swordfish fishery separately 
from commercial fisheries that target other species but take swordfish 
as bycatch. Only persons holding a directed fishery permit would be 
eligible to participate in the directed fisheries under the management 
measures already established, while those holding an incidental permit 
would be restricted to the bycatch fishery with more restrictive 
management measures. NMFS proposes to restrict access to both the 
directed

[[Page 8674]]

and incidental swordfish fisheries. Two types of directed permits would 
be issued: Longline and drift gillnet permits, and handgear (harpoon, 
rod and reel, and handline) permits. Only one permit would be issued to 
a vessel, i.e., a vessel would be issued a directed longline/drift 
gillnet, directed handgear, or incidental permit. No combination of 
permits would be issued.

Eligibility Criteria

    Only persons or entities that held a swordfish permit at any time 
from July 1, 1994, through December 31, 1995, who have documented 
landings that meet at least the directed or incidental threshold levels 
of historical participation in the swordfish fishery, and who own a 
swordfish-permitted vessel at the time of publication of the final rule 
would receive a directed longline/drift gillnet commercial permit or an 
incidental commercial permit. Separate criteria would be established 
for former harpooners to be issued a directed handgear commercial 
permit for use only with handgear.
    Specific eligibility criteria are proposed because the majority of 
existing swordfish permit holders have not participated in the fishery 
(have not had significant reported landings of swordfish). If all 
current swordfish permit holders were to be allowed future 
participation in the commercial swordfish fishery, there would be a 
potential to reach or even to exceed greatly the TAC in a short time.
    For the directed longline and drift gillnet fisheries, NMFS 
proposes a minimum requirement of having landed at least 18 swordfish 
per year for any 2 years between January 1, 1987, and June 30, 1995 
(which is equivalent to having landed sufficient swordfish each year on 
average to earn $5,000 per year in gross revenue). NMFS estimates that 
231 vessels would be eligible for these directed swordfish permits.
    NMFS proposes to issue directed fishery handgear permits only to 
those who (1) have previously been issued swordfish permits for use 
primarily with harpoon gear or (2) have documented landings of 
swordfish with handgear as evidenced by logbook records; official, 
verifiable sales slips or receipts from registered dealers; or state 
landings records. The number of vessel owners that would be eligible is 
estimated to be about 40.
    Under the eligibility criteria proposed for longline and drift 
gillnet gear types, few (if any) former harpooners could qualify 
because their landings were made before 1987 when mandatory reporting 
began and because most have let their permits lapse because of the 
reduced abundance of large swordfish, which they target.
    For the incidental fishery, NMFS proposes a minimum landings 
threshold of nine swordfish between January 1, 1987, and June 30, 1995, 
and an earned income requirement of $20,000 or more than half of one's 
earned income from commercial fishing or charter or headboat operations 
during 1 of the last 3 years. The earned income requirement is intended 
to limit the incidental fishery to bona fide commercial fishers who 
target other species but catch swordfish as bycatch. NMFS estimates 
that 134 vessels would be eligible for incidental swordfish permits 
under the preferred alternative.
    It is considered that catch histories belong to the current permit 
holders rather than to vessels (i.e., if a swordfish permit holder 
sells one vessel and buys another, he or she retains the history of the 
vessel sold and does not acquire the history of the vessel purchased). 
Thus, it is considered that persons or entities purchasing existing 
swordfish vessels have not also purchased that vessel's catch history 
(since the fishery is currently open access, it would be imprudent for 
someone to pay money for a catch history from which he or she may never 
benefit). However, several vessels were purchased after the control 
date (August 30, 1991) with stipulations that the catch history of the 
purchased vessel was purchased as well. Accordingly, NMFS has decided 
to accept legal documentation of transfers of catch histories in the 
determination of eligibility. If a vessel was sold after the control 
date and its landings history was included specifically in the written 
sales agreement, such landings would accrue to the purchaser (and no 
longer to the seller) for purposes of qualifying for a directed or 
incidental permit under the proposed limited access system.

Permit Process

    NMFS would identify and notify all current permit holders of their 
eligibility status for the directed or incidental swordfish fishery 
after analysis based on the established eligibility criteria.
    Upon receipt of this initial notification, eligible permit holders 
may submit an application for a directed or incidental fishery permit. 
If a permit holder is informed that he or she does not qualify for a 
permit, but he or she believes that there is credible evidence to the 
contrary, the permit holder may apply for a permit and provide the 
appropriate documentation. NMFS would then evaluate all applications, 
and any accompanying documentation, and notify the applicant of its 
decision either to accept or deny the permit application.
    If the permit application is denied, the applicant may appeal 
within 90 days of receipt of the notice of denial. Provisional directed 
or incidental fishery permits, as appropriate, would be issued, pending 
the outcome of an appeal, until the final decision has been rendered. 
All appeal decision letters would be mailed via certified mail. If the 
appeal is denied, provisional permits would become invalid 5 days after 
the receipt of the notice of denial. If the appeal is approved, 
provisional permits would become invalid upon receipt of the 
appropriate permit.
    Only owners of permitted vessels that were permitted at any time 
from July 1, 1994, through December 31, 1995, would be considered for 
appeal. All appeals would need to be made in writing. To appeal, the 
applicant would complete an appeal cover sheet with the name, 
affiliation (if any), address, and telephone number of the applicant. 
Additional pages and documentation could be attached, as necessary.
    The sole ground for appeal would be that NMFS used incorrect or 
incomplete landings data in the eligibility analysis. No other ground 
would be considered. Valid documentation of landings covering the 
eligibility period would be required for consideration of an appeal. 
Documentation that would be considered in support of an appeal from 
fishers who believe they qualify for a directed or incidental fishery 
permit would be restricted to official NMFS logbook records that have 
been submitted to NMFS prior to August 30, 1995 (60 days after the 
cutoff date for eligible landings); official, verifiable sales slips or 
receipts from registered dealers; and state landings records. Dealer 
sales slips or receipts would have to show definitively the species and 
the vessel's name or other traceable indication of the harvesting 
vessel. Dealer records would have to include a sworn affidavit by the 
dealer confirming the accuracy and authenticity of the records.
    While photocopies would be acceptable for initial submission, NMFS 
might request originals at a later date, which would be returned to the 
applicant via certified mail. Any submitted materials of questionable 
authenticity would be referred for investigation to NMFS' Office of 
Enforcement.
    NMFS would designate appeals officers who would be NOAA employees. 
The appeals officers would individually review cases but would confer 
regularly to ensure consistency.

[[Page 8675]]

    The appeals officers would review appeals for no more than 30 days 
before making a recommendation to the Director of the Office of 
Sustainable Fisheries (Director). The Director would render the final 
decision for the Department of Commerce. All denial letters would be 
sent by certified mail with return receipt so that NMFS would know when 
letters were received by permit holders.

Restrictions on Transfer of Permits

    NMFS recognizes that vessels may sink or deteriorate beyond repair, 
and vessel owners may have valid reasons for wishing to exit the 
fishery. NMFS proposes to create a system in which directed commercial 
permits would be transferable with the sale of the permitted vessel, or 
to a vessel of similar harvesting capacity, or to a replacement vessel 
owned or purchased by the original permittee, but not under any other 
circumstances. Such transfers would be subject to upgrading 
restrictions (defined in the next section). Incidental permits would 
not be transferable. Directed handgear permits would be transferable, 
but for use with only handgear. NMFS recognizes that the same factors 
present in the directed fishery (vessel sinking or deterioration, 
disability, retirement) would also be present in the incidental fishery 
and that non-transferability of incidental permits would eventually 
result in the elimination of the incidental fishery through attrition. 
Prohibiting transferability of incidental permits would slow the growth 
of fishing effort in the limited access fishery.
    In years after 1997, the eligibility criteria to which initial 
limited access permit holders are subject would not apply. In other 
words, transferees/buyers and holders of limited access vessel permits 
would not be required to meet the initial limited access eligibility 
criteria (i.e., having held a swordfish permit at any time from July 1, 
1994, through December 31, 1995; having met the landings thresholds; 
and owning a vessel at the time of publication of the final rule).

Restrictions on Vessel Upgrading

    NMFS proposes to require that any vessel to which a permit is 
transferred would be defined as the ``new'' vessel and be required to 
have the same or less gross registered tonnage and registered length as 
the originally permitted vessel. This restriction would apply to 
``replacement vessels,'' or those vessels acquired by the original 
permittee to replace originally permitted vessels, and to ``new 
vessels,'' or those vessels not originally permitted but to which a 
permit has been transferred after the original permittee has sold the 
permit. This restriction would also apply to the refurbishment of 
existing permitted vessels.

Ownership Limits

    No one person or entity may own or control more than 5 percent of 
the permitted vessels in the directed fishery. This would prevent 
significant consolidation and maintain the historically predominant 
individual owner/operator character of the swordfish fishery.

Incidental Harvest Limits

    Without limits on the harvest of bycatch, the potential would exist 
for the incidental fishery to target and harvest significant numbers of 
swordfish. This would defeat the purpose of the two-tiered commercial 
permit system. For these reasons, NMFS proposes to retain the existing 
harvest limit for the incidental fishery at a maximum of five swordfish 
per trip for squid/mackerel/butterfish otter trawl vessels and two per 
trip for all other gear types. Fishers with directed longline or drift 
gillnet permits would be limited to five swordfish per trip during a 
closure of the directed fishery. The current limit is 15 swordfish per 
trip, which is considered excessive in view of the depleted status of 
the resource. A lower bycatch limit would provide an incentive to avoid 
swordfish.

Handgear Set-aside

    A quota equivalent to 2 percent of the directed fishery quota would 
be set-aside for holders of the directed handgear permit during each 
semiannual period. This percentage would be increased by subsequent 
regulation as the north Atlantic swordfish stock recovers.

Fees

    The Regional Administrator may charge a fee to recover the 
administrative expenses of permit issuance and appeals. The amount of 
the fee would be determined, at least annually, in accordance with the 
procedures of the NOAA Finance Handbook, available from the Regional 
Administrator, for determining administrative costs of each special 
product or service. The fee would not exceed such costs and would be 
specified with each application form. The appropriate fee would be 
required to accompany each application. Failure to pay the fee would 
preclude issuance of the permit. Payment by a commercial instrument 
later determined to be insufficiently funded would invalidate any 
permit.

Classification

    This proposed rule is published under 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 has preliminarily determined that the 
regulations contained in this proposed rule are necessary for 
management of the Atlantic swordfish fishery. NMFS prepared a draft EA 
for this proposed rule with a preliminary finding of no significant 
impact on the human environment. The biological opinion issued on 
September 1, 1995, indicated that the level of impact from the longline 
and drift gillnet fisheries for Atlantic swordfish was not likely to 
jeopardize the continued existence of any threatened or endangered 
species or marine mammal populations. This action to limit access is 
under review to determine if any environmental impacts would alter that 
opinion.
    NMFS reinitiated formal consultation for all highly migratory 
species commercial fisheries on September 25, 1996, under section 7 of 
the Endangered Species Act. This consultation will consider new 
information concerning the status of the northern right whale. NMFS has 
determined that proceeding with this rule, pending completion of that 
consultation, will not result in any irreversible and irretrievable 
commitment of resources that would have the effect of foreclosing the 
formulation or implementation of any reasonable and prudent alternative 
measures. This rule would reduce the number of permits in the Atlantic 
swordfish commercial fishery and freeze the harvesting capacity of the 
fleet at current levels, thereby preventing further overcapitalization 
and derby fishing conditions and would likely reduce interaction rates 
with such protected species.
    A draft RIR was prepared with a preliminary finding of no 
significant economic impact. The RIR provides further discussion of the 
economic effects of the proposed rule.
    The Assistant General Counsel for Legislation and Regulations of 
the Department of Commerce certified to the Chief Counsel for Advocacy 
of the Small Business Administration that this proposed rule, if 
adopted, would not have a significant economic impact on a substantial 
number of small entities as follows:

    The purpose of this proposed rule is to rationalize current 
harvesting capacity with total allowable catch and substantially 
reduce latent effort without significantly

[[Page 8676]]

altering the status quo in the Atlantic swordfish fishery. 
Practically all current participants of the swordfish fishery 
readily fall within the definition of a small business. The proposed 
rule will affect all current permit holders (1,531) in the Atlantic 
swordfish fishery. However, it will not have a ``significant 
economic effect'' or adversely affect a ``substantial number'' of 
those engaged in the fishery. In general, a substantial number of 
small entities is defined by the Department of Commerce as more than 
20 percent of those engaged in the fishery.
    Only about 300 permitted vessels catch at least one swordfish 
each year and together they constitute the Atlantic swordfish 
fishery. Few, if any, fishers who are considered to be substantially 
dependent on the fishery would be excluded under the proposed 
limited access regulation. All longline and drift gillnet vessel 
owners who can demonstrate a history of landings at a minimum 
threshold of 18 swordfish per year during the 2-year qualifying 
period would be eligible for a directed permit (about 231). Only the 
most recent entrants to the fishery and those without at least a 
minimal record of landings over two years would be excluded. 
Historical participants, particularly about 40 New England-based 
harpooners who have let their permits lapse and would otherwise be 
excluded from the directed fishery, could be issued a directed 
handgear permit allowing them to participate in any potential 
recovery of the stock.
    Speculative permit holders (numbering 1,231), by definition, 
have not participated in the commercial swordfish fishery at all or 
have not been substantially dependent on the fishery for a period of 
years. The incidental bycatch limits continue to provide for 
speculative commercial fishers to land some swordfish; accordingly, 
their annual gross revenues should not decrease substantially. 
Incidental permits are also available to those who have participated 
in the fishery over a period of years but whose landings were at 
such low levels that they could not qualify for a directed fishery 
permit. Incidental landing limits (two swordfish per trip) should be 
comparable to their previous catch rates, thus their annual gross 
revenue should also not be affected.
    Therefore, redefining commercial swordfish permits as directed 
and incidental as proposed will not have a significant economic 
impact on a majority of those engaged in the Atlantic swordfish 
fishery in terms of fishers' annual gross revenues. The substantive 
changes proposed primarily affect the applicability of permitting 
requirements. The need for these changes is explained in the 
preamble to the proposed rule.

    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with the collection of information subject to the requirements 
of the Paperwork Reduction Act (PRA) unless that collection of 
information displays a currently valid Office of Management and Budget 
(OMB) Control Number.
    This proposed rule contains collections of information subject to 
the PRA. Revisions are proposed to the vessel permitting process, but 
these are minor and not expected to alter the estimated response time 
of 20 minutes. Permit requirements have been approved by OMB under 
Control Number 0648-0205. Reporting requirements remain unchanged from 
those approved by OMB under Control Number 0648-0016, with an estimated 
response time of 15 minutes per logbook report. The appeals procedure 
constitutes a new collection-of-information requirement and it has been 
submitted to OMB for approval. An appeal of a permit denial is 
estimated to take 1.5 hours, including the time to gather records, make 
copies, and mail documents to NMFS. Comments regarding: (1) The 
accuracy of this burden estimate (including hours and cost); (2) 
whether the proposed collection of information is necessary for the 
proper performance of NMFS' functions, including whether the sought 
information has practical utility; (3) ways to enhance the quality, 
utility, and clarity of the information to be collected; (4) ways to 
minimize the burden of the collection of information on respondents, 
including through the use of automated collection techniques or other 
forms of information; and (5) any other aspects of information 
collection should be sent to OMB and NMFS (see ADDRESSES).
    This action has been determined to be not significant for purposes 
of E.O. 12866.

List of Subjects in 50 CFR Part 630

    Fisheries, Fishing, Reporting and recordkeeping requirements, 
Treaties.

    Dated: February 19, 1997.
Rolland Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 630 is 
proposed to be amended as follows:

PART 630--ATLANTIC SWORDFISH FISHERY

    1. The authority citation for part 630 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq. and 16 U.S.C. 971 et seq.

    2. In Sec. 630.2, the definitions for ``Director'' and ``Handgear'' 
are added, in alphabetical order, and the definition of ``Recreational 
fishery'' is revised to read as follows:


Sec. 630.2  Definitions.

* * * * *
    Director means the Director, Office of Sustainable Fisheries F/SF, 
NMFS, or a designee.
* * * * *
    Handgear means harpoon, rod and reel, and handline fishing gear.
* * * * *
    Recreational fishery means all activities involved in the catching 
of swordfish from a vessel, having only rod and reel or handline gear 
on board, intended solely for sport or pleasure with no subsequent sale 
or commercial barter of any of the catch.
* * * * *
    3. In Sec. 630.4, paragraphs (a), (b), the first sentence of (d), 
and (e) through (g) are revised and paragraph (c)(1) is amended by 
adding a new first sentence to read as follows:


Sec. 630.4  Permits and fees.

    (a) Vessel permits--(1) General. (i) Except as provided by 
paragraph (a)(1)(ii) of this section, a valid Federal permit issued 
under this paragraph must be obtained and carried on board at all times 
by the owner of the United States that fishes for, possesses, or lands 
Atlantic swordfish from the North Atlantic Ocean, including the Gulf of 
Mexico and Caribbean Sea, north of 5 deg. N. latitude, the management 
unit; or that takes such swordfish as bycatch, whether or not retained.
    (ii) The owner of a vessel that fishes for or possesses swordfish 
in or from the North Atlantic Ocean, including the Gulf of Mexico and 
Caribbean Sea, north of 5 deg. N latitude in the recreational fishery 
is exempt from the requirement to have a permit.
    (2) Limited access eligibility in 1997. NMFS will issue three types 
of limited access permits for Atlantic swordfish vessels: Directed 
longline and drift gillnet permits, directed handgear permits, and 
incidental permits. To be eligible to obtain a vessel permit in 1997--
    (i) For use with longline or drift gillnet gear in the directed 
swordfish fishery, a vessel owner must have held a valid Federal 
commercial swordfish permit at any time during the period July 1, 1994, 
through December 31, 1995; met the landings criteria specified in 
paragraph (a)(3)(i) of this section; and own a vessel with a valid 
swordfish permit on February 26, 1997.
    (ii) For use with handgear (harpoon, rod and reel, or handline) but 
having no longline or drift gillnet gear on board, a vessel owner must 
have previously been issued a swordfish permit for use primarily with 
harpoon gear or have documented landings of swordfish with handgear as 
evidenced by official NMFS

[[Page 8677]]

logbook records; official, verifiable sales slips or receipts from 
registered dealers; and state landings records.
    (iii) For use by vessels targeting species other than swordfish, 
but catching limited numbers of swordfish incidentally, a vessel owner 
must have earned at least $20,000 or more than half of his or her 
earned income from commercial fishing or from charter or headboat 
operations during 1 of the last 3 years; held a valid Federal 
commercial swordfish permit during the period July 1, 1994, through 
December 31, 1995; met the landings criteria specified in paragraph 
(a)(3)(ii) of this section; and own a vessel with a valid swordfish 
permit on Febraury 26, 1997. A statement attesting to having met the 
earned income requirement must be furnished with an application for an 
incidental swordfish permit.
    (3) Landings Criteria. (i) Directed permits for use with longline 
or drift gillnet gear will be issued only to eligible permit holders 
who have documented landings of at least 18 swordfish per year for any 
2 years between January 1, 1987, and June 30, 1995.
    (ii) Incidental permits will be issued only to eligible permit 
holders who have documented landings of nine swordfish during the 
period January 1, 1987, to June 30, 1995.
    (4) Eligibility in 1998 and thereafter. To be eligible for a 
swordfish permit for use with longline or drift gillnet gear in years 
after 1997, a vessel owner must have been issued a permit for the 
directed longline or drift gillnet fishery for the preceding year, or 
the vessel must be replacing a vessel that has been retired from the 
directed longline or drift gillnet fishery and had been issued a permit 
for the preceding year, and the vessel and owner must meet the criteria 
set forth in paragraphs (b)(5) and (g). A vessel owner desiring to 
apply for a directed handgear permit must meet the eligibility criteria 
specified at paragraph (a)(2)(ii) of this section; handgear permits are 
renewable annually. If more than one vessel owner claims eligibility to 
apply for a limited access Atlantic swordfish vessel permit based on 
one vessel's fishing and permit history after 1997, NMFS shall 
determine who is entitled to qualify for the limited access Atlantic 
swordfish vessel permit according to paragraph (g)(3) of this section.
    (5) Notification of eligibility for 1997. (i) NMFS will attempt to 
notify all commercial swordfish permit holders (and former permit 
holders that used harpoon gear) of their eligibility for a directed or 
incidental limited access Atlantic swordfish vessel permit, based on 
the requirements contained in paragraph (a)(2) of this section. Upon 
receipt of this initial notification, eligible permit holders may 
submit an application for the appropriate permit following procedures 
described in paragraph (b) of this section.
    (ii) If an owner has been notified that the vessel is not eligible 
for a limited access Atlantic swordfish vessel permit, and the vessel 
owner can provide credible evidence that the vessel does qualify under 
the pertinent criteria, the vessel owner may apply for the appropriate 
permit by submitting the documentation required under paragraph (a)(8) 
of this section.
    (6) If, based on the documentation supplied with the application, 
NMFS determines that the vessel meets the eligibility criteria, the 
appropriate limited access permit will be issued.
    (7) Application denial. If, based on the documentation supplied 
with the application, NMFS determines that the vessel does not meet the 
eligibility criteria specified in paragraphs (a)(2) and (a)(3) of this 
section or the conditions specified in paragraphs (a)(5) and (e) of 
this section, the limited access permit application will be denied. 
Letters of denial will be sent via certified mail.
    (8) Appeals. (i) Any applicant denied a limited access permit for 
Atlantic swordfish vessels may appeal the denial to NMFS within 90 days 
of the notice of denial. The sole ground for appeal is that NMFS erred 
in its determination of eligibility on the basis of incorrect or 
incomplete data. No other grounds will be considered. Valid 
documentation of landings specified in paragraph (a)(3) of this section 
covering the eligibility period must be provided by the applicant for 
NMFS to consider an appeal. Photocopies will be acceptable for initial 
submission. NMFS may request originals at a later date, which would be 
returned to the applicant via certified mail. Any such appeal must be 
in writing. Documentation that is of questionable authenticity will be 
referred for investigation to NMFS' Office of Enforcement.
    (ii) The only landings documentation that will be considered in 
support of an application or appeal are official NMFS logbook records 
that were submitted to NMFS prior to August 30, 1995; state landings 
records; and official, verifiable sales slips or receipts from 
registered dealers. Dealer sales slips and receipts must definitively 
show the species landed and vessel's name or other traceable 
information for the harvesting vessel and must include a sworn 
affidavit by the dealer confirming the accuracy and authenticity of the 
records.
    (iii) The Director shall issue a provisional permit, which shall be 
valid for the pendency of the appeal, to a vessel and owner for which 
an appeal has been initiated. The provisional permit shall be valid 
only for use with the gear appropriate to the category of permit the 
appellant is seeking. Any such decision is the final administrative 
action of the Department of Commerce on allowable fishing activity 
pending a final decision on the appeal. The provisional permit must be 
carried on board the vessel while participating in the Atlantic 
swordfish fishery and is not transferable.
    (iv) NMFS will appoint appeals officers who will review the written 
materials for no more than 30 days before making a recommendation to 
the Director.
    (v) Upon receiving the findings and a recommendation, the Director 
will issue a final decision on the appeal. The Director's decision is 
the final administrative action of the Department of Commerce.
    (vi) The Director shall send letters of approval or denial of 
appeals to the vessel owners. All appeal decision letters will be 
mailed via certified mail. If the appeal is denied, provisional permits 
will become invalid 5 days after receipt of the notice of denial. If 
the appeal is approved, provisional permits will become invalid upon 
receipt of the appropriate permit.
    (b) Application for a limited access vessel permit. (1) In the year 
1997, an initial application for a limited access vessel permit must be 
submitted and signed by the owner (in the case of a corporation, the 
qualifying officer or shareholder; in the case of a partnership, the 
qualifying general partner) of the vessel. The application must be 
submitted to the Regional Director at least 30 days prior to the date 
on which the applicant desires to have the permit made effective. 
Permit application forms are available from the Regional Director. An 
applicant must provide the following information:
    (i) A copy of the vessel's U.S. Coast Guard certificate of 
documentation or, if not documented, a copy of its state registration 
certificate.
    (ii) The vessel's name, official number, registered gross tonnage, 
and registered length.
    (iii) Name, mailing address including ZIP code, telephone number, 
and social security number, and date of birth of the owner (if the 
owner is a corporation/partnership, in lieu of the social security 
number, provide the employer identification number, if one has been

[[Page 8678]]

assigned by the Internal Revenue Service (IRS), and, in lieu of the 
date of birth, provide the date the corporation/partnership was 
formed).
    (iv) Information concerning vessel, gear used, fishing areas, and 
fisheries vessel is used in, as requested by the Regional Director and 
included on the application form.
    (v) If a directed handgear permit is being sought, indication of 
the year a permit was issued for use primarily with harpoon gear, or if 
issued prior to 1984, a copy of the permit issued, or valid 
documentation of landings of swordfish with handgear. Valid 
documentation that will be considered in support of an application for 
a directed handgear permit are official NMFS logbook records; official, 
verifiable sales slips or receipts from registered dealers; or state 
landings records.
    (vi) If an incidental swordfish permit is being sought, a sworn 
statement by the applicant certifying that, during 1 of the 3 calendar 
years preceding the application:
    (A) More than 50 percent of his or her earned income was derived 
from commercial fishing, that is, sale of the catch, or from charter or 
headboat operations; or
    (B) His or her gross sales of fish were more than $20,000; or
    (C) For a vessel owned by a corporation or partnership, the gross 
sales of fish of the corporation or partnership were more than $20,000.
    (vii) A sworn statement that the applicant agrees to the conditions 
specified in paragraph (a)(5) of this section.
    (viii) Any other information that may be necessary for the issuance 
or administration of the permit, as requested by the Regional 
Administrator and included on the application form.
    (ix) The Regional Administrator may require the applicant to 
provide documentation supporting the sworn statement under paragraph 
(b)(1)(vi) of this section before a permit is issued or to substantiate 
why such permit should not be revoked or otherwise sanctioned under 
paragraph (i) of this section. Such required documentation may include 
copies of appropriate forms and schedules from the applicant's income 
tax return. Copies of income tax forms and schedules will be treated as 
confidential.
    (2) In years after 1997, a limited access permit holder may apply 
for a limited access permit renewal, provided that the initial 
information under which the permit holder qualified for a limited 
access permit has not changed. Limited access vessel permits must be 
renewed annually and renewal applications must be submitted to the 
Regional Director at least 30 days prior to the date on which the 
applicant desires to have the permit made effective. Only holders of 
valid limited access permits in the preceding year are eligible for a 
renewal of their limited access permits.
    (3) In years after 1997, an application for permit transfer of a 
directed limited access vessel permit to a new vessel and/or owner will 
be authorized, subject to transfer and upgrading restrictions specified 
in Sec. 630.4 (g)(1) through (g)(3) and ownership limits set forth in 
Sec. 630.4 (b)(5). Incidental limited access permits are not 
transferable or assignable. All other requirements and restrictions 
specified in this part apply to transferred limited access permits and 
permit holders.
    (4) A limited access vessel permit for 1997 will not be issued 
unless an application for such permit is received by NMFS on or before 
November 30, 1997.
    (5) No person or entity may own or control more than 5 percent of 
the vessels in the limited access Atlantic swordfish directed fishery.
    (c) Application for an annual dealer permit. (1) A dealer who 
receives swordfish harvested or possessed by a vessel of the United 
States must have an valid annual dealer permit issued under this part.* 
* *
* * * * *
    (d) Fees. A fee is charged for each limited access vessel permit 
issued under paragraph (a) of this section, for each appeal under 
paragraph (b) of this section, and for each annual dealer permit issued 
under paragraph (c) of this section.
    (e) Issuance--(1) Limited access vessel permits. Except as provided 
in subpart D of 15 CFR part 904 and under paragraphs (a)(7) and (a)(8) 
of this section, the Regional Administrator shall issue a Federal 
limited access Atlantic swordfish vessel permit within 30 days of 
receipt of the application unless:
    (i) The applicant has failed to submit a complete application. An 
application is complete when all requested forms, information, 
documentation, and fees, if applicable, have been received and the 
applicant has submitted all applicable reports specified at Sec. 630.5;
    (ii) The application was not received by NMFS by the deadlines set 
forth in paragraph (b)(4) of this section;
    (iii) The applicant and applicant's vessel failed to meet all 
eligibility requirements described in paragraph (a)(2) of this section; 
or
    (iv) The applicant has failed to meet any other application 
requirements stated in this part.
    (2) Dealer permits. The Regional Administrator will issue a dealer 
permit at any time to an applicant if the application is complete. An 
application is complete when all requested forms, information, and 
documentation have been received and the applicant has submitted all 
applicable reports specified at Sec. 630.5(a) or Sec. 630.5(b).
    (3) Incomplete applications. Upon receipt of an incomplete 
application, the Regional Administrator will notify the applicant of 
the deficiency. If the applicant fails to correct the deficiency within 
90 days of the date of the Regional Administrator's letter of 
notification, the application will be considered abandoned.
    (f) Duration. A permit remains valid for the period specified on 
it, and the conditions accepted upon its issuance remain in effect for 
that period, unless the vessel is retired from the swordfish fishery or 
the permit is revoked, suspended, or modified pursuant to subpart D of 
15 CFR part 904.
    (g) Transfer. (1) Directed limited access permits are transferable 
to a new vessel and/or owner or to a replacement vessel owned or 
purchased by the original permittee but not under any other 
circumstances. Such transfers are subject to requirements specified in 
paragraph (g)(2) of this section. Incidental permits are not 
transferable or assignable; incidental permits are valid only for the 
vessel and owner of original issuance. A person purchasing a permitted 
vessel who desires to conduct activities for which a permit is required 
must apply for a permit in accordance with the provisions of paragraph 
(b) of this section. The application must be accompanied by a copy of 
the bill of sale.
    (2) Transfer of directed limited access permits is authorized only 
for new or replacement vessels not exceeding the gross registered 
tonnage and registered length as the originally permitted vessel.
    (3) The fishing and permit history of a vessel is presumed to be 
retained by the original permit holder whenever the vessel is bought, 
sold, or otherwise transferred, unless there is a written agreement, 
signed by the transferor/seller and transferee/buyer, or other credible 
written evidence, verifying that the transferor/seller is transferring/
selling the vessel's fishing and permit history.
* * * * *
    4. In Sec. 630.7, paragraph (bb) is added to read as follows:

[[Page 8679]]

Sec. 630.7  Prohibitions.

* * * * *
    (bb) Aboard a vessel for which a directed swordfish handgear permit 
has been issued under Sec. 630.4, retain or possess swordfish taken 
with gear other than harpoon, rod and reel, or handline and or to have 
longline or drift gillnet gear on board. 5. Section 630.22 is revised 
to read as follows:


Sec. 630.22  Gear Restrictions.

    (a) Drift gillnet. A drift gillnet with a total length of 2.5 km or 
more may not be used to fish for swordfish. A vessel using or having 
aboard a drift gillnet with a total length of 2.5 km or more may not 
possess a swordfish.
    (b) Handgear. A vessel for which a directed swordfish handgear 
permit has been issued under Sec. 630.4 may retain or possess swordfish 
taken only with harpoon, rod and reel, or handline and must not have 
longline or drift gillnet gear on board.
    6. In Sec. 630.24, paragraph (a) is revised and paragraph 
(b)(1)(iii) is added to read as follows:


Sec. 630.24  Quotas.

    (a) Applicability. A swordfish harvested from the North Atlantic 
swordfish stock by a vessel of the United States in other than the 
recreational fishery is counted against the directed fishery gear quota 
or the bycatch quota. A swordfish harvested commercially by longline, 
drift gillnet, harpoon, rod and reel or handline and landed before the 
effective date of a closure for that gear, done pursuant to 
Sec. 630.25(a)(1), is counted against the applicable directed fishery 
gear quota. After a gear closure, a swordfish landed by a vessel using 
or possessing gear for which bycatch is allowed under Sec. 630.25(c) is 
counted against the bycatch allocation specified in paragraph (c) of 
this section. Notwithstanding the above, a swordfish harvested by a 
vessel using or possessing gear other than longline, drift gillnet, 
harpoon, rod and reel or handline is counted against the bycatch quota 
specified in paragraph (c) of this section at all times.
    (b) * * *
    (1) * * *
    (iii) A quota equivalent to 2 percent of the directed fishery quota 
will be set-aside for holders of the directed handgear permit during 
each semiannual period. Any unused portion of the set-aside quota will 
be returned to the directed fishery allocation by the end of September 
(the end of the handgear season) of each year.
* * * * *
    7. In Sec. 630.25, the first sentence in paragraph (c)(2)(ii) is 
amended by removing the numeral ``15'' and by adding the numeral ``5'' 
in its place, and paragraph (d) introductory text is revised to read as 
follows:


Sec. 630.25  Closures and bycatch limits.

* * * * *
    (d) Bycatch limits in the non-directed fishery. Aboard a vessel 
using or having aboard gear other than longline, drift gillnet, 
harpoon, rod and reel or handline, other than in the recreational 
fishery--
* * * * *
[FR Doc. 97-4658 Filed 2-21-97; 12:08 pm]
BILLING CODE 3510-22-F