[Federal Register Volume 77, Number 53 (Monday, March 19, 2012)]
[Rules and Regulations]
[Pages 15973-15975]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6577]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 110211137-2141-02]
RIN 0648-BA87


Fisheries Off West Coast States; Highly Migratory Species 
Fisheries; Swordfish Retention Limits

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

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule under the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA) to modify retention limits for 
swordfish harvested in the U.S. West Coast-based deep-set tuna longline 
(DSLL) fishery. The DSLL fishery is managed under the Fishery 
Management Plan for U.S. West Coast Fisheries for Highly Migratory 
Species (HMS FMP). The final rule implements the Pacific Fishery 
Management Council's (Council) recommendation to modify HMS FMP 
regulations governing the possession and landing limits of swordfish 
captured in the DSLL fishery as follows: if a vessel without an 
observer onboard uses any J-hooks (tuna hooks), the trip limit is 10 
swordfish; if a vessel without an observer onboard uses only circle 
hooks, the trip limit is 25 swordfish; if the vessel carries a NMFS-
approved observer during the entire fishing trip, there is no limit on 
swordfish retained.

DATES: This final rule is effective April 18, 2012.

FOR FURTHER INFORMATION CONTACT: Craig Heberer, Sustainable Fisheries 
Division, NMFS, 760-431-9440, ext. 303.

SUPPLEMENTARY INFORMATION: 

Electronic Access

    This final rule is also accessible at (http://swr.nmfs.noaa.gov/). 
An electronic copy of the current HMS FMP and accompanying appendices 
are available on the Pacific Fishery Management Council's Web site at 
http://www.pcouncil.org/hms/hmsfmp.html.
    The HMS FMP was developed by the Council in response to the need to 
coordinate state, Federal, and international management of HMS stocks. 
The management unit in the FMP consists of highly migratory species 
(tunas, billfish, and sharks) that

[[Page 15974]]

occur within the West Coast (California, Oregon, and Washington) 
Exclusive Economic Zone (EEZ) and to a limited extent on adjacent high 
seas waters. NMFS, on behalf of the Secretary of Commerce, partially 
approved the HMS FMP on February 4, 2004 (69 FR 18444). The majority of 
HMS FMP implementing regulations became effective on April 7, 2004. 
Reporting and recordkeeping provisions became effective on February 10, 
2005.
    Since being adopted in 2004, the HMS FMP has been amended twice. On 
June 7, 2007, NMFS approved Amendment 1 to the HMS FMP to incorporate 
recommended international measures to end overfishing of the Pacific 
stock of bigeye tuna, Thunnus obesus, in response to formal 
notification from NMFS that overfishing was occurring on this stock. On 
June 12, 2011, NMFS approved Amendment 2 to the HMS FMP (76 FR 56328) 
to ensure that it is consistent with revised guidelines to implement 
National Standard 1 of the MSA in order to more effectively prevent 
overfishing and rebuild overfished stocks, or stocks that may become 
overfished.
    This final rule modifies HMS FMP longline regulations at 50 CFR 
660.705 and 660.712, which prohibit U.S. vessels based on the West 
Coast from using longline gear to make shallow sets (SSLL), and which 
originally prohibited U.S. vessels using DSLL gear from landing more 
than 10 swordfish (Xiphias gladius) per trip. The 10-swordfish trip 
limit was intended to prevent vessels ostensibly fishing with DSLL gear 
targeting bigeye and yellowfin tuna, from switching to SSLL gear 
targeting swordfish on the same trip. The final rule increases the trip 
limits on swordfish in order to make the West Coast-based DSLL fishery 
consistent with recommendations by the Western Pacific Fishery 
Management Council on their Pacific Pelagics Fishery Ecosystem Plan 
(FEP) to similarly increase DSLL fishing retention limits for the 
Hawaii-based DSLL fishery.
    The final rule retains the 10 swordfish limit for DSLL vessels 
fishing with J-hooks (tuna hooks), because those types of hooks have 
higher sea turtle bycatch rates, and the trip limit acts as a deterrent 
to engaging in fishing practices that may result in sea turtle bycatch. 
The final rule changes the trip limits for vessels fishing without 
observers but using circle hooks, because those types of hooks are 
known to minimize the bycatch and mortality of sea turtles. However, 
for trips with a NMFS-approved observer, the final rule removes the 
trip limits entirely, because the observer acts a sufficient deterrent 
to engaging in SSLL fishing, which is prohibited.
    The final rule assists vessels in the DSLL fishery by reducing the 
unnecessary discard of swordfish (regulatory ``bycatch'' under the 
Magnuson Act) when a vessel employs DSLL fishing methods known to 
reduce the risk of incidentally catching sea turtles. It also benefits 
the DSLL vessels by allowing them to land a greater number of 
swordfish, which could result in fishermen realizing greater profits 
from DSLL fishing trips, especially those with NMFS-approved observer 
coverage. Furthermore, by not forcing fishermen to discard as many 
swordfish, bycatch levels will be minimized as required by National 
Standard 9 of the MSA.
    NMFS received four public comments on the proposed rule, two in 
support of the action and two critical of the action. The first 
critical comment asserted, without providing substantive evidence, that 
the fisherman regulated under these rules could be earning more than 
five million dollars a year and therefore should not be considered a 
small (business) entity for purposes of analysis under the Regulatory 
Flexibility Act (RFA). Based on the average observed annual catches by 
this vessel and the market values for that catch, it is extremely 
unlikely that the regulated fisherman is realizing annual revenues 
anywhere near five million dollars. NMFS has not changed its 
certification or undertaken a regulatory flexibility analysis due to 
this comment.
    The second critical comment, submitted on behalf of the Turtle 
Island Restoration Network and the Center for Biological Diversity, 
recommended that NMFS disapprove the action altogether. The 
recommendation was based on the commenters' perceptions of: a lack of 
need for the regulation; adverse effects on federally protected sea 
turtles, marine mammals and bycatch species; adverse impacts to Pacific 
swordfish populations; and providing the foundation for opening the 
West Coast High Seas to a surface longline fishery (i.e., shallow-set 
fishery for swordfish) under the guise of regulatory consistency. The 
rationale for the rule is explained above, and is not related to 
opening a SSLL fishery. NMFS has analyzed the DSLL fishery (on the high 
seas outside the West Coast EEZ) under the National Environmental 
Policy Act (NEPA) and section 7 of the Endangered Species Act. This 
final rule will result in no additional adverse impacts to the marine 
environment, including sea turtles and marine mammals, or any aspect of 
the human social and economic environment that was not previously 
analyzed. The action is not expected to increase either the fishing 
effort or manner of operations in the DSLL fishery (which is an open-
access fishery). Furthermore, the North Pacific swordfish stock is 
currently healthy and not approaching an overfished or overfishing 
condition.
    There are no changes to the rule text from those that NMFS 
originally proposed.

Classification

    The Administrator of the Southwest Region, NMFS, determined that 
the final rule is necessary for the conservation and management of the 
U.S. West Coast Fisheries for Highly Migratory Species and that it is 
consistent with the Magnuson-Stevens Fishery Conservation and 
Management Act and other applicable laws.
    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. A single comment was received 
questioning the determination that the one vessel affected by this rule 
is a ``small entity.'' As explained above, in the response to comments 
under the Supplementary Section of this final rule, the commenter did 
not supply any substantive evidence to support that claim, and it is 
extremely unlikely that the regulated fisherman is realizing annual 
revenues anywhere near five million dollars. As a result, a regulatory 
flexibility analysis was not required and none was prepared.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: March 14, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 660 is amended 
as follows:

PART 660--FISHERIES OFF WEST COAST STATES

0
1. The authority citation for part 660 continues to read as follows:

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


[[Page 15975]]



0
2. In Sec.  660.705, revise paragraphs (s) and (mm) to read as follows:


Sec.  660.705  Prohibitions.

* * * * *
    (s) If no observer is on the vessel and J-type fishing hooks are 
used, possess more than 10 swordfish; if no observer on the vessel and 
only circle-type fishing hooks are used, possess more than 25 swordfish 
on board a longline vessel from a fishing trip where any part of the 
trip included fishing west of 150[deg] W. long. and north of the 
equator (0[deg] lat.) in violation of Sec.  660.712(a)(9).
* * * * *
    (mm) Except when fishing under a western Pacific longline limited 
entry permit issued under Sec.  660.21, possess more than 10 swordfish 
on board a longline vessel from a fishing trip where any part of the 
trip included fishing on the high seas of the Pacific Ocean west of 
150[deg] W. long. north of the equator in violation of Sec.  
660.720(a)(3).
* * * * *

0
3. In Sec.  660.712, revise paragraphs (a)(10) and (a)(11) to read as 
follows:


Sec.  660.712  Longline fishery.

    (a) * * *
    (10) If no observer is on board the vessel, owners and operators of 
longline vessels registered for use of longline gear may land or 
possess no more than 10 swordfish from a fishing trip when using any J-
type fishing hooks, and no more than 25 swordfish from a fishing trip 
when using only circle hook-type fishing hooks. If a NMFS-approved 
observer is on board the vessel for the duration of the fishing trip, 
there is no limit on the amount of swordfish retained.
    (11) Owners and operators of longline vessels registered for use of 
longline gear are subject to the provisions at 50 CFR part 223 
prohibiting shallow sets to target swordfish in waters beyond the U.S. 
EEZ and east of 150[deg] W. long.
* * * * *
[FR Doc. 2012-6577 Filed 3-16-12; 8:45 am]
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