Atlantic Swordfish Fishery; Extension of Drift Gillnet Emergency Closure

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 630

[Docket No. 960314073-7129-04; I.D. 112696C]

RIN 0648-AI23

Atlantic Swordfish Fishery; Extension of Drift Gillnet Emergency

Closure

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Correction and extension of fishery closure.

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SUMMARY: On December 5, 1996, NMFS published an emergency rule that

closed the drift gillnet fishery for swordfish in the Atlantic Ocean,

including the Gulf of Mexico and Caribbean Sea, from December 1, 1996,

through May 29, 1997, and announced that it had reinitiated

consultation under the Endangered Species Act (ESA) for Atlantic

swordfish fisheries. On May 29, 1997, NMFS issued a biological opinion

(BO) that concluded that the swordfish, shark, and tuna driftnet

fishery segments of the Atlantic pelagic fishery are likely to

jeopardize the continued existence of the North Atlantic right whale.

Two alternatives that would avoid the likelihood of jeopardy were set

forth in the BO, although NMFS has not identified a preferred

alternative at this time. This action extends the emergency closure for

the swordfish drift gillnet fishery for a second period of 180 days

until November 26, 1997, or until a preferred option to avoid the

likelihood of jeopardy is identified and implemented. This action also

corrects the effective date language of the initial emergency closure

that was published on December 5, 1996, because it inadvertently added

the codified text of the temporary rule on a permanent basis.

DATES: The correction is effective December 1, 1996. The emergency

closure extension and the amendment to part 630 are effective from May

30, 1997, through 2400 hours local time November 26, 1997.

FOR FURTHER INFORMATION CONTACT: John Kelly, 301-713-2347 or Mark

Murray-Brown, 508-281-9260.

SUPPLEMENTARY INFORMATION: On September 25, 1996, NMFS reinitiated

consultation under section 7(a) of the ESA on the Atlantic swordfish

fisheries. While this consultation was underway, an emergency fishery

closure covering the semiannual subquota period of December 1, 1996,

through May 29, 1997, was published on December 5, 1996 (61 FR 64486),

to ensure that no irreversible and irretrievable commitment of

resources was made that would have the effect of foreclosing the

formulation or implementation of any prudent and reasonable alternative

measures while the consultation was pending.

On May 29, 1997, NMFS issued the BO that concluded that the

swordfish, tunas, and shark driftnet fishery segments of the Atlantic

pelagic fishery are likely to jeopardize the continued existence of the

North Atlantic right whale. NMFS has identified two alternatives for

these segments of the fishery that would avoid the likelihood of

jeopardy:

1. Prohibit the use of driftnet gear in Highly Migratory Species

(HMS) fisheries, and

2. Implement actions to allow the restricted use of driftnet gear,

including general gear restrictions and/or implementation of the

Atlantic large whale and offshore cetacean take reduction plans.

[[Page 30776]]

The emergency closure must remain in effect to avoid the likelihood

of jeopardy until a preferred option is identified and implemented.

In order to implement one of these options, a rulemaking will have

to be initiated. Although NMFS has proposed changes to the shark

driftnet segment of the fishery (April 7, 1997, 62 FR 16519),

rulemaking has not yet been initiated on the swordfish and tuna

driftnet segments. As the original emergency rule only closed the

swordfish drift gillnet fishery, this extension will also only apply to

the swordfish driftnet component of the fishery. Actions affecting the

shark and tuna components of the drift gillnet fishery are being

considered separately.

The Atlantic Offshore Cetacean Take Reduction Team (AOCTRT)

submitted a draft take reduction plan to NMFS, on November 25, 1996,

which included recommended measures to reduce incidental takes of

strategic marine mammal stocks to below their Potential Biological

Removal level within 6 months of implementation. The AOCTRT's draft

plan is complex, requires substantial review, and has significant

implications for fishery management actions and the drift gillnet

fishery in particular. Final approval and implementation of the AOCTRT

plan by NMFS, as well as the pending Large Whale Take Reduction Plan,

will provide guidance on necessary drift gillnet modifications to avoid

the likelihood of jeopardy.

However, the existing emergency closure for the swordfish drift

gillnet fishery expires on May 29, 1997, and final action on the above

initiatives will not occur before this date. Therefore, NMFS is

extending the emergency closure of the drift gillnet swordfish fishery

for a second period of 180 days through 2400 hours November 26, 1997,

to ensure that this component of the fishery does not cause jeopardy.

Pursuant to this emergency closure: (1) No one aboard a vessel

using or having on board a drift gillnet may fish for swordfish from

the North Atlantic swordfish stock; and (2) no more than two swordfish

per trip may be possessed on board a vessel using or having on board a

drift gillnet in the North Atlantic Ocean, including the Gulf of Mexico

and Caribbean Sea, north of 5 deg. N. lat., or landed in an Atlantic,

Gulf of Mexico, or Caribbean coastal state.

A request for comments on the original emergency closure was

published in the Federal Register on May 14, 1997 (62 FR 26427).

Comments and responses are summarized below.

Comments and Responses

Comment: One written and several telephone comments expressed

support for implementing the AOCTRT plan to eliminate the drift gillnet

derby fishery.

Response: NMFS agrees that rulemaking needs to be undertaken to

address these issues and will consider the AOCTRT plan as one of the

alternatives for reducing the likelihood of jeopardy.

Comment: One commenter expressed support for an extension of the

emergency closure due to the gear's adverse effect on marine mammals

and endangered species. Furthermore, the commenter expressed belief

that the gear should be retired permanently as it is non-discriminatory

and has a bycatch of non-targeted HMS species.

Response: NMFS is extending the emergency closure for an

additional 180 days. The management of the drift gillnet segment of the

pelagics fishery will be determined following review and implementation

of necessary measures to avoid the likelihood of jeopardy.

Correction

This action also corrects the effective date language of the

initial emergency closure that was published on December 5, 1996 (61 FR

64486). As published, the rule inadvertently added the codified text of

the temporary rule on a permanent basis.

Accordingly, the publication on December 5, 1996, of the emergency

closure (I.D. 112696C) that was the subject of FR Doc. 96-30932 is

corrected as follows:

On page 64486, in the third column, the EFFECTIVE DATES section is

corrected to read as follows:

DATES: The closure and the amendments to part 630 will be effective

from December 1, 1996, through 2400 hours local time, May 29, 1996.

Classification

This action extends an emergency rule issued under section 305(c)

of the Magnuson-Stevens Fishery Conservation and Management Act, 16

U.S.C. 1855(c). In order to ensure that no irreversible and

irretrievable commitment of resources is made that has the effect of

foreclosing the formulation or implementation of any reasonable and

prudent alternative measures while consultation under section 7(a) of

ESA takes place on this fishery, the Assistant Administrator for

Fisheries, NOAA, under authority at 5 U.S.C. 553(d)(3), for good cause

found that this rule can be made effective immediately. This action is

exempt from review under E.O. 12866.

Dated: May 30, 1997.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set forth 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. 630.7, paragraph (aa) is added to read as follows:

Sec. 630.7 Prohibitions.

* * * * *

(aa) Notwithstanding any other provision of part 630:

(1) No one aboard a vessel using or having on board a drift gillnet

may fish for swordfish from the North Atlantic swordfish stock.

(2) No more than two swordfish per trip may be possessed on board a

vessel using or having on board a drift gillnet in the North Atlantic

Ocean, including the Gulf of Mexico and Caribbean Sea, north of 5 deg.

N. lat.

(3) No more than two swordfish per trip may be landed from a vessel

using or having on board a drift gillnet in an Atlantic, Gulf of

Mexico, or Caribbean coastal state.

[FR Doc. 97-14631 Filed 5-30-97; 4:51 pm]

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