Atlantic Swordfish Fishery; South Atlantic Quotas; Quota Adjustment Procedures

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 630

[Docket No. 980527137-8237-02; I.D. 121597D]

RIN 0648-AL24

Atlantic Swordfish Fishery; South Atlantic Quotas; Quota

Adjustment Procedures

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 establish annual quotas for the

South Atlantic swordfish stock and to amend the regulations governing

quota adjustment procedures in the Atlantic swordfish fishery. The

purpose of this action is to improve the conservation and management of

the Atlantic swordfish resource, while allowing harvests consistent

with the recommendations of the International Commission for the

Conservation of Atlantic Tunas (ICCAT).

DATES: All provisions of this final rule are effective October 8, 1998.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact

Review (EA/RIR) supporting this action may be obtained from Rebecca

Lent, Chief, Highly Migratory Species Management Division, NMFS, 1315

East-West Highway, Silver Spring, MD 20910. Applications for a delayed

offloading exempted fishing permit may be obtained from Buck Sutter,

Highly Migratory Species Management Division, St. Petersburg, FL, (813)

570-5447.

FOR FURTHER INFORMATION CONTACT: Steve Meyers or Jill Stevenson: 301-

713-2347 or FAX 301-713-1917.

SUPPLEMENTARY INFORMATION: The harvest of Atlantic swordfish by U.S.

fishermen is managed pursuant to the Fishery Management Plan for

Atlantic Swordfish. Regulations found at 50 CFR part 630 and issued

under the authority of the Magnuson-Stevens Fishery Conservation and

Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.) and of

the Atlantic Tunas Convention Act (ATCA) (16 U.S.C. 971 et seq.)

implement the plan. Regulations issued under the authority of ATCA

implement the recommendations of ICCAT.

Background information about the need for revisions to Atlantic

swordfish fishery regulations was provided in the preamble to the

proposed rule (63 FR 31710, June 10, 1998) and is not repeated here.

South Atlantic Swordfish Quota

In this final rule, NMFS establishes the a South Atlantic swordfish

quota of 289 mt dw (384 mt ww) for each of the 1998, 1999, and 2000

fishing years. A single fishing period each year is preferred by

fishery participants, semi-annual quotas are not established. The

quotas established are consistant with ICCAT rcommnedations and

negotiated quota-sharing agreements.

Reminder: In South Atlantic waters, U.S.-flagged vessels continue

to be prohibited from fishing for swordfish with any gear other than

pelagic longline. Following a closure of the directed longline fishery

in the South Atlantic Ocean, no incidental harvest is allowed.

Permitting and reporting requirements and minimum size requirements are

also applicable to the South Atlantic swordfish fishery. Because no

South Atlantic swordfish quota has been allocated to the recreational

fishery sector, recreational fishery participants are prohibited from

fishing for or landing South Atlantic swordfish.

Quota Adjustment Procedures

In this final rule, NMFS revises quota adjustment procedures to

expedite adjustments involving simple carryover situations within a

season or between seasons. Specifically, NMFS willaccomplish within-

and between-season carryover quota adjustments by notice action. NMFS

will consult on long-term quota adjustments necessary to prevent

overfishing and/or to comply with ICCAT recommendations with the

Magnuson-Stevens Act advisory panels (APs) during annual discussions on

the need to amend the Fishery Management Plan (FMP).

Other Issues

In addition to the above measures, NMFS requested comments in this

rulemaking on two related issues that concern management of Atlantic

swordfish: (1) The offloading of swordfish harvested from the South

Atlantic stock during a closure in the North Atlantic fishery and (2)

the use of trip limits to extend the length of the North Atlantic

swordfish fishery.

Offloading of Swordfish

NMFS is continuing the swordfish Vessel Monitoring System (VMS)

pilot program (63 FR 12687, March 16, 1998), with one modification to

the offloading provisions applicable during closures of the directed

swordfish fisheries. Fishermen that apply for and receive an exempted

fishing permit (EFP) may (1) offload swordfish after a directed fishery

closure in either the North or the South Atlantic swordfish fishery and

(2) possess greater than 15 South Atlantic swordfish on board in the

North Atlantic Ocean during a closure of the North Atlantic directed

fishery. NMFS intends to issue EFPs to those vessels that purchase,

install, and operate a VMS unit. To apply for an EFP, fishermen must

contact NMFS (see ADDRESSES).

NMFS must implement an ICCAT recommendation that requires 10 U.S.

vessels to operate VMS units for a 3-year pilot program, beginning in

1999. Vessels that participate in the swordfish VMS program may be able

to participate in the ICCAT program as well. NMFS encourages vessels

that fish on the high seas for swordfish to join voluntarily the ICCAT

VMS pilot program.

Trip Limits

Trip limits were implemented on a temporary basis in 1996 to slow

down catch rates and avoid extended closure periods. In 1997 the trip

limits lapsed. NMFS received comments on trip limits during the comment

period of the proposed consolidation of the regulations governing

highly migratory species (HMS) (61 FR 57361, November 6, 1996) and

requested comments in connection with the present rule (63 FR 31710,

June 10, 1998). Based on comments received, NMFS is not implementing

trip limits in this rulemaking due to the need for further

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analyses. Trip limits will be considered, however, in the draft FMP and

in subsequent public hearings and AP meetings.

Comments and Responses

Two written comments were submitted to NMFS and three public

hearings were held during the comment period.

South Atlantic Swordfish Quota

Comment: Two commenters supported the 289 mt dw quota allocated to

the South Atlantic swordfish fishery.

Response: NMFS agrees.

Comment: Two commenters stated that a split season is not necessary

for the South Atlantic swordfish quota. They both suggested that a

split season may result in unused South Atlantic quota due to the

nature of the fishery (limited number of vessels, high costs per trip

due to long travel times). Interest was expressed by a commenter that

the season should start later in the calendar year than June 1 to

correspond to the seasonal nature of the South Atlantic fishery.

Another commenter suggested it might start earlier to allow the distant

water fleet to take advantage of the high demand for swordfish in early

July.

Response: NMFS agrees that a split season is not necessary in the

South Atlantic fishery and is establishing a single annualfishing

period for the South Atlantic swordfish fishery. Under this scenario,

fishing years (and the annual quota) begin June 1 and continue until

the quota is caught. NMFS recognizes that economic factors determine

preferences for fishing seasons in different geographic areas and is

currently considering alternatives in the HMS FMP that would adjust the

start of the fishing year.

Quota Adjustment Procedures

Comment: A commenter recommended that NMFS quickly finalize 1997

landings estimates in order for fishermen to benefit from the carryover

of unused 1997 North Atlantic and South Atlantic swordfish quotas.

Response: NMFS agrees. By this rule NMFS is streamlining the quota

carryover procedures in order to maximize the benefit to swordfish

fishermen. Under the new procedures carryovers are established by

notice action rather than by an extended rulemaking action.

Comment: Two commenters recommended establishing a swordfish

evaluation panel of industry representatives to improve relations

between NMFS and the commercial swordfishing industry. They believe

that a panel would improve the accuracy of swordfish landings

projections made by NMFS. One commenter indicated that the HMS Advisory

Panel is a poor replacement for developing a ``reasonable swordfish

evaluation panel process.''

Response: NMFS does not believe that the establishment of such a

panel (which would have to comply with the Federal Advisory Committee

Act) is warranted. NMFS will consult on long term quota adjustments

necessary to prevent overfishing with the Magnuson-Stevens Act advisory

panels during discussions on the need to amend the FMP. For short-term

carryover adjustments to quotas, options are limited, with reduced need

for consultation.

Offloading of Swordfish

Comment: One commenter supported the use of a VMS unit if Spanish

and Japanese vessels were also required to use one. This commenter was

concerned about the confidentiality of the information that would be

collected by NMFS.

Response: NMFS established a voluntary unilateral swordfish VMS

program to benefit U.S. fishermen. However, all ICCAT member nations

must abide by a 1997 ICCAT recommendation for a VMS pilot program by

1999. Consistent with legal requirements, NMFS maintains

confidentiality of VMS data submitted to the NMFS

Office of Law Enforcement.

Comment: One commenter supported allowing vessels with a VMS unit

on board to transit the North Atlantic Ocean with greater than 15 South

Atlantic swordfish on board.

Response: NMFS agrees that offloading of South Atlantic swordfish

in northern areas provides an economic benefit to swordfish fishermen

during closures in the North Atlantic. However, NMFS currently requires

fishermen to obtain an EFP to be able to transit the North Atlantic

area during a closed period with greater than 15 swordfish on board.

Trip Limits

Comment: One commenter stated that there should be no trip limit

in the South Atlantic swordfish fishery due to high costs incurred

while fishing in that area.

Response: NMFS will not implement trip limits in the South Atlantic

fishery because there is no need to slow the pace of the fishery at

this time. Trip limits for the South Atlantic swordfish fishery will be

considered if the need arises to slow the pace of the fishery.

Comment: One commenter reiterated past comments that support trip

limits only if accompanied by restrictive measures for smaller vessels

such as a days-between-landings program. This commenter expressed that

there would be a reduced likelihood of a closure in the first semi-

annual season of the 1998 North Atlantic swordfish fishery due to a

reduction in the distant water fleet and the carryover of unharvested

1997 quota.

Response: This issue needs additional analyses and opportunity for

public comment. Enforcement is a particular concern for days-between-

landings. NMFS agrees that, to the extent practicable, all fishery

participants should be fairly affected by any effort controls in the

Atlantic swordfish fisheries. The draft HMS FMP includes a re-proposal

for limited access in the swordfish fishery. Once limited access

measures are in place, further effort controls can be considered.

Changes From the Proposed Rule

Based on comments received on the proposed rule, a single season

quota is established for the South Atlantic swordfish fishery. No

additional changes, other than editorial changes, were made to the

proposed rule.

Classification

This final rule is published under the authority of ATCA and the

Magnuson-Stevens Act. The Assistant Administrator for Fisheries (AA),

NOAA, has determined that the regulations contained in this rule are

necessary to implement the recommendations of ICCAT and for the

domestic management of the Atlantic swordfish fishery.

NMFS prepared an EA for this final rule with a finding of no

significant impact on the human environment. In addition, an RIR was

prepared with a finding of no significant impact. 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 implemented, would not have a

significant economic impact on a substantial number of small entities

as follows. The quota represents an increase relative to the 1997

quota, reflects U.S. fishing effort and catch in 1993 and 1994, and is

not overly restrictive. As a result, these measures will not have a

significant economic impact on a substantial number of small entities.

No comments were received that changed that basis for the original

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certification. Therefore, no Regulatory Flexibility Analysis was

prepared.

Because this rule increases the harvest quota for swordfish from

the South Atlantic swordfish stock, thereby extending the fishing

season and reducing the likelihood or duration of a fishery closure,

this rule relieves a restriction and under 5 U.S.C. 553(d)(1) is not

subject to a delay in effective date. To the extent that this rule

implements certain quota adjustment procedures that will expedite

carryover of North Atlantic swordfish quota not harvested in the 1997

fishing year, the AA, under 5 U.S.C. 553(d)(3), finds that it would be

contrary to the public interest to delay the effective date of the new

procedures for 30 days. NMFS will rapidly communicate the new

regulations to fishery participants through its FAX network and HMS

Information Line.

This rule has been determined to be not significant for purposes of

E.O. 12866.

NMFS reinitiated formal consultation for the South Atlantic

swordfish fishery on May 4, 1998, under section 7 of the ESA. The

Biological Opinion resulting from this consultation was issued on

August 5, 1998. It concluded that continued operationof the longline

fishery in the South Atlantic Ocean may adversely affect, but is not

likely to jeopardize, the continued existence of any endangered or

threatened species under NMFS jurisdiction.

List of Subjects in 50 CFR Part 630

Fisheries, Fishing, Reporting and recordkeeping requirements,

Treaties.

Dated: September 23, 1998.

Gary C. Matlock,

Director, Office of Sustainable Fisheries, 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. 630.24, paragraph (a)(3) is added; paragraphs (b), and

(d) through (f) are revised; and paragraphs (g) and (h) are removed to

read as follows:

Sec. 630.24 Quotas.

(a) * * *

(3) A swordfish possessed on board or offloaded from a vessel that

used or had on board a driftnet during its current or most recent

fishing trip in waters of the North and/or South Atlantic Oceans

(including the Gulf of Mexico and Caribbean Sea) will be deemed to have

been harvested by a driftnet.

(b) Directed-fishery quotas. (1) The annual directed fishery quota

for the North Atlantic swordfish stock for the period June 1, 1998,

through May 31, 1999, is 2,098.6 mt dw, of which 2,057 mt dw is

allocated for the longline/harpoon fishery and 41.6 mt dw is allocated

for the driftnet fishery. The allocation for the longline/harpoon

fishery is divided into two equal semiannual quotas of 1,028.5 mt dw,

one for the period June 1 through November 30, 1998, and the other for

the period December 1, 1998, through May 31, 1999.

(2) The annual directed fishery quota for the North Atlantic

swordfish stock for the period June 1, 1999, through May 31, 2000, is

2,033.2 mt dw, of which 1,993 mt dw is allocated for the longline/

harpoon fishery and of which 40.2 mt dw is allocated for the drift

gillnet fishery. The allocation for the longline/harpoon fishery is

divided into two equal semiannualquotas of 996.5 mt dw, one for the

period June 1 through November 30, 1999, and the other for the period

December 1, 1999, through May 31, 2000.

(3) The annual directed fishery quota for the South Atlantic

swordfish stock for the period June 1, 1998, through May 31, 1999, is

289 mt dw.

(4) The annual directed fishery quota for the South Atlantic

swordfish stock for the period June 1, 1999, through May 31, 2000, is

289 mt dw.

(5) The annual directed fishery quota for the South Atlantic

swordfish stock for the period June 1, 2000, through May 31, 2001, is

289 mt dw.

* * * * *

(d) Annual adjustments. (1) As necessary, NMFS will reevaluate the

annual directed fishery quotas for the North and South Atlantic

swordfish stocks and the annual incidental catch quota for the North

Atlantic swordfish stock. NMFS will consider the best available

scientific information regarding the following factors:

(i) Swordfish stock abundance assessments;

(ii) Swordfish stock age and size composition;

(iii) Catch and effort in the swordfish fishery; and

(iv) Consistency with ICCAT recommendations.

(2) Except for the carryover provisions of paragraph (d)(3), of

this section, NMFS will announce any adjustments to the annual quotas

by publication of a notice in the Federal Register, providing for a 30-

day minimum comment period. NMFS will prepare a report of its

evaluations, a regulatory impact review, and an environmental

assessment; and such documents will be made available to the public.

NMFS will take into consideration all information received during this

comment period and will publish a final rule in the Federal Register.

(3) If consistent with applicable ICCAT recommendations, total

landings above or below the specific North Atlantic or South Atlantic

swordfish annual quota will be subtracted from, or added to, the

following year's quota for that management area. Any adjustments to the

12-month directed fishery quota will be apportioned equally between the

two semiannual periods. NMFS will publish notification in the Federal

Register of any adjustment and of the apportionment made under this

paragraph (d)(3).

(e) Inseason adjustments. (1) 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.

(2) If NMFS determines that the annual incidental catch quota will

not be taken before the end of the fishing year, the excess quota may

be allocated to the directed fishery quotas.

(3) If NMFS determines that it is necessary to close the directed

fishery, any estimated overharvest or underharvest of the directed

fishery quota available immediately prior to that closure will be used

to adjust the annual incidental catch quota accordingly.

(4) NMFS will publish notification in the Federal Register of any

inseason adjustment and its apportionment made under this paragraph

(e).

(f) Gear allocations. If NMFS determines that the annual or

semiannual directed fishery or incidental catch quotas must be adjusted

pursuant to paragraph (d) or (e) of this section, the annual or

semiannual gear quotas will be adjusted so that the new gear quotas

represent the same proportion (percentage) of the adjusted quota as

they did of the quota before adjustment, provided such adjusted gear

quotas are consistent with applicable requirements under the Endangered

Species Act and the Marine Mammal Protection Act.

[FR Doc. 98-25928 Filed 9-24-98; 4:24 pm]

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