[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27304-27308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13690]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 630

[Docket No. 960314073-6145-02; I.D. 030896E]
RIN 0648-AI23


Atlantic Swordfish Fishery; 1996 Quotas, Minimum Size, Adjustment

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to amend the regulations governing 
the Atlantic swordfish fishery to: Reduce the annual total allowable 
catch (TAC) to 2,625 metric tons (mt) dressed weight (dw) via a split 
season (June 1 - May 31), decrease the minimum size to 73 cm (29 
inches) cleithrum to caudal keel measure, eliminate the trip allowance 
for undersized fish, and make reporting requirements consistent with 
the

[[Page 27305]]

current logbook program. The intent of this action is to rebuild the 
swordfish resource while allowing harvest of swordfish consistent with 
recommendations of the International Commission for the Conservation of 
Atlantic Tunas (ICCAT).

EFFECTIVE DATE: The rule is effective June 4, 1996.

ADDRESSES: Copies of Biological Opinions and a Final Environmental 
Assessment/Regulatory Impact Review (EA/RIR) supporting this action may 
be obtained from Rebecca Lent, Highly Migratory Species Management 
Division, Office of Fisheries Conservation and Management, National 
Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 
20910. Comments regarding the burden-hour estimate or any other aspect 
of the collection-of-information requirement contained in this rule 
should be sent to Rebecca Lent and to the Office of Management and 
Budget (OMB), (0648-0016), Attention: NOAA Desk Officer, Washington, DC 
20503.

FOR FURTHER INFORMATION CONTACT: Rebecca Lent, 301-713-2347; fax: 301-
713-0596.

SUPPLEMENTARY INFORMATION: The Atlantic swordfish fishery is managed 
under the Fishery Management Plan for Atlantic Swordfish and its 
implementing regulations at 50 CFR part 630 issued under the authority 
of the Magnuson Fishery Conservation and Management 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.
    Background information about the need for revisions to Atlantic 
swordfish fishery regulations was provided in the proposed rule (61 FR 
15212, April 5, 1996) and is not repeated here.

Management Measures

    These regulatory changes will improve NMFS' ability to implement 
the ICCAT recommendations and further the management objectives for the 
domestic swordfish fisheries:

1. TAC and Fishing Year Definition

    NMFS changes the definition of the fishing year for purposes of TAC 
implementation to June 1 - May 31. NMFS also decreases the annual TAC 
by 359 mt to 2,625 mt, which is consistent with the 1994 ICCAT 
recommendation. All weights are in dw of swordfish, unless indicated 
otherwise. The TAC is divided between a directed-fishery quota of 2,371 
mt and a bycatch quota of 254 mt. The directed-fishery quota is divided 
into two 1,185.5 mt semiannual quotas for each of the 6-month periods, 
June 1 through November 30, and December 1 through May 31. Each of the 
1,185.5 mt semiannual quotas is further subdivided into a drift gillnet 
quota of 23.45 mt and a longline and harpoon quota of 1,162.05 mt. The 
semiannual TAC for the longline and harpoon swordfish fishery is 
reduced by the estimated semiannual dead discards of 97.6 mt to yield a 
landing quota of 1,064.44 mt for each of the two semiannual periods.
    Following a closure of the directed longline fishery in any 
semiannual period, any overharvest or underharvest will be added to or 
subtracted from the bycatch quota of 254 mt. The ability to add or 
subtract underage or overage ensures that the United States will abide 
by the annual ICCAT quotas.
    The special set-aside quota for harpoon gear remains at 10 mt.
    Due to the need to meet observer coverage requirements for the 
drift gillnet fishery, the starting date for this gear type only, for 
their 1996 quota, is delayed until July 1, 1996. Contracts, research 
projects, and other arrangements for observer coverage necessary due to 
the Category I status of the drift gillnet fishery could not be 
modified in 1996 to accommodate the revised starting date of June 1, 
1996. Thus, the first semiannual drift gillnet quota will be applicable 
during the period of July 1 - November 30, 1996, and the second 
semiannual quota will apply to the period of December 1, 1996 to May 
31, 1997. The bridge period quota (see below) will be applied for drift 
gillnet vessels during the period of January 1 - June 30, 1996. Thus, 
drift gillnetters may fish prior to July 1, 1996, subject to the bridge 
period quota, which has not been reached to date. The revised fishing 
year and semiannual periods established herein for other fishing 
categories will be applied for the drift gillnet fishery beginning June 
1, 1997.

2. Bridge Period TAC

    A bridge period TAC is determined for the first 5 months of 1996 at 
a level equal to five twelfths of the 1995 U.S. quota, which is 
equivalent to 1,149.5 mt (106 mt bycatch, 1021 mt longline, and 22.5 mt 
drift gillnet). As discussed above, drift gillnet vessels may continue 
fishing through June 1996 as long as the bridge period quota has not 
been filled.

3. Alternative Minimum Size

    The final rule implements the ICCAT-recommended alternative minimum 
size of 119 cm (47 inches) lower jaw fork length (LJFL) with zero 
tolerance for undersized fish, meaning that no swordfish less than this 
smaller minimum size may be retained on board fishing vessels. 
Therefore, the current tolerance of undersized fish (15 percent by 
number per trip) is eliminated. The 119 cm (47'') LJFL is equivalent to 
a cleithrum to caudal keel measure (CK) of 73 cm (29 inches) or 15 kg 
(33 lb) dw.

4. Other Changes

    Changes are made to the regulatory text to make vessel reporting 
requirements consistent with the current logbook program.

Comments and Responses

1. Quota Reduction and Allocation

    Comment: Most comments supported the reduction in TAC as 
recommended by ICCAT. There was some concern, however, over the 
calculation of discards, both in terms of the rate used and the fact 
that only the United States deducts this estimate from their allowable 
catch.
    Response: NMFS agrees that a reduction in TAC to the level 
recommended by ICCAT is not only necessary under ATCA but also 
desirable, given that current catch levels exceed replacement yield. 
The longline discard rate applied in setting the TAC is identical to 
that used in 1995. However, as data become available, this discard rate 
could be revised to account for the modification in the minimum size. 
The United States reports estimated longline discards of undersized 
swordfish to ICCAT, and had committed, for 1995 and 1996 only, to 
reducing the TAC accordingly.
    Comment: Some commenters felt that the drift gillnet quota should 
be higher given the number of participants and the derby nature of the 
fishery. Another commenter suggested that gear-specific quotas be 
discontinued, to be replaced with a fixed season for the driftnet 
fishery of 2 months.
    Response: The percentage share allocated to the longline and drift 
gillnet fishery is identical to that used in 1994 and 1995 and is based 
on the share of total catch harvested by these user groups in 1988. 
NMFS disagrees with the suggestion of having a season for drift 
gillnetting rather than a quota, since this would only intensify the 
derby-fishing nature of this gear category, particularly since it is 
open access.

2. Split Season

    Comment: Some commenters agreed with the split season as one option 
to improve the economic condition of the swordfish fishermen under 
declining

[[Page 27306]]

quotas. They indicated that, for the two periods of high likelihood for 
a swordfish longline directed fishery closure, April/May are good 
months for yellowfin tuna, while October/November have historically 
been low price months for swordfish.
    Response: NMFS agrees that the new semiannual periods might allow 
for the best possible prices for swordfish catch, which is particularly 
important to mitigate decline in exvessel revenue given the reduction 
in TAC.
    Comment: Some commenters expressed concern over the possible 
increased interaction with bluefin tuna and/or protected species given 
the change in the fishing season.
    Response: The swordfish longline fishery has never been closed 
during the months of June or July; therefore, it is unlikely that the 
pattern of interaction with bluefin or other bycatch species would be 
modified by this change in the fishing season. Fishing with the use of 
drift gillnets in the first half of the existing semiannual period 
generally began in earnest around mid-June; therefore, it is not 
evident that a June 1 starting date would modify the pattern of 
protected species interaction. However, given the need to meet observer 
coverage requirements for the drift gillnet fishery, the starting date 
for this gear type for 1996 only is delayed until July 1, 1996, to 
accommodate arrangements already in place for this year's fishery. 
Thus, the semiannual drift gillnet 1996 quota will be applicable during 
the period of July 1 - November 30, 1996, and the second semiannual 
quota will hold during the period of December 1, 1996 to May 31, 1997. 
The revised fishing year and semiannual periods thus will be applied 
for the drift gillnet fishery beginning June 1, 1997, unless further 
information and/or analyses received before that date warrant a change 
in this regulation.

3. Revised Minimum Size

    Comment: Some commenters felt that the revised minimum size would 
lead to decreased discards and facilitate enforcement. Others felt that 
the minimum size should be increased to 50 lb and/or the average weight 
at first reproduction (80 kg round weight, or 132 lb dw). Some 
commenters also suggested that fishers be allowed to retain swordfish 
less than the minimum size for their own consumption or for charity 
purposes.
    Response: NMFS agrees that implementation of the alternative 
minimum size could lead to a reduction in the longline discard rate to 
the extent that undersized fish that are now harvested under the 15 
percent tolerance and/or discarded at sea are within the new, lower 
minimum size range. An increase in the minimum size to 50 lb or 132 lbs 
(reproductive weight) could lead to a significant increase in the 
discard rate. Finally, retention of swordfish less than the alternative 
minimum size could be counter to the ICCAT recommendation, with the 
exception of the Second Harvest program which has been approved by 
ICCAT.
    Comment: Several commenters suggested that NMFS consider time-area 
closures to reduce the catch of undersized swordfish.
    Response: Preliminary research conducted by NMFS indicates certain 
areas in which there is relatively higher interaction with undersized 
swordfish. However, a complete analysis should be conducted on the 
potential time-area closures and the impact of these closures on the 
fishery. In addition, the revised minimum size and fishing season could 
have an effect on the rate of small fish interaction. Time-area 
closures may be considered in future rulemaking if analysis warrants.
    Comment: It was noted that the ICCAT recommendation would 
facilitate a possible ban on sale of swordfish under the minimum size 
if a country adopts the alternative minimum size with zero tolerance. 
This would allow the United States to halt the import of undersized 
swordfish from Nations that do not comply with the ICCAT 
recommendation.
    Response: NMFS agrees that a ban on the sale of Atlantic swordfish 
under the lower minimum size would facilitate enforcement and ensure 
that ICCAT conservation efforts are not hampered by harvest and export 
to the United States of undersized swordfish from non-complying 
Nations. However, given the considerable volume of domestic and 
imported Pacific swordfish that is handled nationwide, NMFS must 
establish an enforceable system to document shipments of swordfish 
harvested outside the management unit. Such a system is under 
consideration but will require some time to comply with Paperwork 
Reduction Act (PRA) requirement. In the meantime, since adoption of the 
alternative minimum size will facilitate U.S. Atlantic enforcement and 
may reduce the discard rate, NMFS is implementing the alternative 
minimum size.

4. Other

    Comment: There were continued comments regarding the need to allow 
a 14-day offloading period for swordfish during a closure due to the 
market effects of a sudden increase in landings.
    Response: NMFS agrees that closure dates can cause a market glut 
and lower prices. However, even a 14-day offloading window can cause 
such a market glut, since vessels may have an incentive to wait until 
the last day or two of this window to sell their swordfish. In 
addition, given that the concern over sudden increase in supply comes 
primarily from long-distance vessels that tend to take longer trips, 
there is concern about the effect of further delaying the offloading on 
the quality of the swordfish landed. Finally, a 14-day window only 
would encourage vessels to return to port at the last minute, with 
possible consequences on the catch rate in the final days, leading to 
even earlier closure dates.
    Comment: There were several comments on issues that are beyond the 
scope of this rule, including: Requiring equal coverage for vessels of 
all gear types, with a minimum of 50 percent coverage; establishing 
target catch criteria for swordfish bycatch during closure of the 
directed fishery; proposals to extend the fishing season; allowing more 
than
    30 days to comment on a proposed rule; and monitoring the U.S. 
swordfish catch in the south Atlantic.
    Response: These issues are beyond the scope of this rulemaking, the 
primary purpose of which is to implement the 1996 TAC via the split 
season, along with revising the minimum size. NMFS will consider the 
comments above in future rulemaking. With respect to the monitoring of 
swordfish catch in the South Atlantic, all U.S. permitted vessels are 
currently subject to a reporting requirement, including negative 
reporting.
    Based on consideration of comments received, only one change was 
made to the proposed rule, notably the date of effectiveness of the 
split season for the drift gillnet fishery, as noted above.

Classification

    This final rule is published under the authority of ATCA. The 
Assistant Administrator for Fisheries, NOAA has determined that the 
regulations contained in this rule are necessary to implement the 
recommendations of ICCAT and are necessary for management of the 
Atlantic swordfish fishery. The Assistant General Counsel for 
Legislation and Regulation of the Department of Commerce certified to 
the Chief Counsel for Advocacy of the Small Business Administration 
that the proposed rule, if adopted, would not have a significant 
economic impact on a substantial number of small entities. The 1996 TAC 
represents about a 12-percent reduction from the TAC of the

[[Page 27307]]

previous year, which could result in short-term potential losses in 
gross revenue of about $3.2 million. However, these potential losses 
will be at least partially offset by increases in price due to 
declining supply (demand is price-inelastic) and the split season. In 
addition, pelagic longline vessels may redirect fishing effort to 
Atlantic tunas, dolphin fish, and other species, as occurred in the 
1995 season. As a result, a regulatory flexibility analysis was not 
prepared. The RIR provides further discussion of the economic effects 
of the rule.
    This action has been determined to be not significant for purposes 
of E.O. 12866.
    NMFS has determined that there is good cause to waive partially the 
30-day delay in the effective date normally required by section 553(d) 
of the Administrative Procedure Act. Since this fishery is underway, 
early implementation of the new TAC and minimum size will ensure 
effective implementation of the ICCAT recommendations.
    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 a collection of information subject to the requirements of 
the PRA unless that collection of information displays a currently 
valid OMB Control Number.
    This final rule includes changes to the regulatory text regarding 
vessel reporting requirements in an effort to be consistent with 
changes in the logbook program. However, there are no new collection-
of-information requirements since the proposed rule simply clarifies 
requirements that have been approved by the OMB under Control Number 
0648-0016 in 15 CFR part 902. Public reporting burden for this 
collection of information is estimated to average 2 minutes for logbook 
records and trip summaries.
    These estimates include the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. 
Send comments regarding this burden estimate or any other aspects of 
this collection of information, including suggestions for reducing this 
burden, to NMFS and OMB (see ADDRESSES).
    NMFS issued biological opinions under the Endangered Species Act on 
September 1, 1995, and on February 2, 1996, indicating that the level 
of impact and marine mammal takes from the longline and harpoon, and 
drift gillnet swordfish fishery is not likely to jeopardize the 
continued existence of any sea turtle species or any marine mammal 
populations.

List of Subjects in 50 CFR Part 630

    Fisheries, Fishing, Reporting and recordkeeping requirements, 
Treaties.

    Dated: May 24, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 630 is 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. 630.5, paragraph (a)(1) is revised to read as follows:


Sec. 630.5  Recordkeeping and reporting.

    (a) Fishing vessel reports. (1) The owner and operator of a vessel 
for which a vessel permit has been issued under Sec. 630.4 must ensure 
that a daily logbook form is maintained of the vessel's swordfishing 
effort, catch, and disposition on logbook forms available from the 
Science and Research Director. Such forms must be submitted to the 
Science and Research Director postmarked not later than the 7th day 
after sale of the swordfish off-loaded from a trip. If no fishing 
occurred during a month, a report so stating must be submitted in 
accordance with instructions provided with the logbook forms. Logbooks 
must be kept on board the vessel at all times.
* * * * *
    3. In Sec. 630.7, paragraph (q) is revised to read as follows:


Sec. 630.7  Prohibitions.

* * * * *
    (q) Possess on board a vessel a swordfish that is smaller than the 
minimum size specified in Sec. 630.23(a). 
* * * * *
    4. Section 630.20 is revised to read as follows:


Sec. 630.20  Fishing Year.

    The fishing year is June 1 through July 31.
    5. In Sec. 630.23, paragraph (b) is removed, paragraphs (c) and (d) 
are redesignated as paragraphs (b) and (c), respectively, and the first 
sentence of paragraph (a) and the last sentence of newly designated 
paragraph (b) are revised to read as follows:


Sec. 630.23  Harvest limitations.

    (a) Minimum size. The minimum allowable size for possession on 
board a fishing vessel for a swordfish taken from the management unit 
is 29 inches (73 cm) carcass length, measured along the body contour 
(i.e., a curved measurement) from the cleithrum to the anterior portion 
of the caudal keel (CK measurement) or, if swordfish are weighed, 33 lb 
(15 kg) dressed weight. * * *
    (b) * * * A shark-bit swordfish for which the remainder of the 
carcass is less than the minimum size limit specified in paragraph (a) 
of this section may not be landed.
* * * * *
    6. In Sec. 630.24, paragraphs (b)(1), (d)(4), and (e) are revised, 
paragraph (b)(2) is redesignated as paragraph (b)(4), and new 
paragraphs (b)(2) and (b)(3) are added to read as follows:


Sec. 630.24  Quotas.

* * * * *
    (b) * * *
    (1) The directed fishery quota for the period January 1, 1996, 
through May 31, 1996, is 1,021 mt dressed weight for the longline 
fishery, 22.5 mt dressed weight for the drift gillnet fishery, and 106 
mt dressed weight for the bycatch fishery.
    (2) The annual quota for the directed fishery for swordfish is 
2,371 mt dressed weight, divided into two semiannual quotas as follows:
    (i) For the semiannual period June 1 through November 30:
    (A) 23.45 mt dressed weight, that may be harvested by drift 
gillnet.
    (B) 1,162.05 mt dressed weight that may be harvested by longline 
and harpoon. To account for harvested fish that are discarded dead, 
only 1064.44 mt dressed weight, may be landed in this category.
    (ii) For the semiannual period December 1 through May 31:
    (A) 23.45 mt dressed weight that may be harvested by drift gillnet.
    (B) 1,162.05 mt dressed weight that may be harvested by longline 
and harpoon. To account for harvested fish that are discarded dead, 
only 1064.44 mt dressed weight may be landed in this category.
    (3) Notwithstanding any other provision of this part, the sub-
quotas for the drift gillnet fishery for January 1 - November 30, 1996, 
are available as follows:
    (i) For the period January 1 through June 30, 22.5 mt dressed 
weight; and
    (ii) For the period July 1 through November 30, 23.45 mt dressed 
weight.
* * * * *
    (d) * * *

[[Page 27308]]

    (4) Any adjustments to the 12-month directed-fishery quota will be 
apportioned equally between the June 1 through November 30 and December 
1 through May 31 semiannual periods.
* * * * *
    (e) NMFS may adjust the December 1 through May 31 semiannual 
directed-fishery quota and gear quotas to reflect actual catches during 
the June 1 through November 30 semiannual period, provided that the 12-
month directed-fishery and gear quotas are not exceeded.
* * * * *
    7. In Sec. 630.25, the second sentence of paragraph (b) is revised 
to read as follows:


Sec. 630.25  Closures and bycatch limits.

* * * * *
    (b) * * * The procedures of paragraph (a)(1) of this section 
notwithstanding, during the June 1 through November 30 semiannual 
period, swordfish not exceeding 21,500 lb (9,752 kg), dressed weight, 
may be set aside for the harpoon segment of the fishery. * * *
* * * * *
[FR Doc. 96-13690 Filed 5-28-96; 4:25 pm]
BILLING CODE 3510-22-F