Atlantic Swordfish Fisheries; Limited Access Program

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

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

way, 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)

erated 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

91 (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

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

ng 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

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

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

cted 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)

h. 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

ed 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

n (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.

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

ld 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

ply. 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

mmercial

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

istrative 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

is 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

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

usiness. 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

. 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

esponse 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.

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.

exico 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

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

tching 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

een 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.

redible 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.

gibility 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.

ction 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:

d 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.

n 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.*

* *

* * * * *

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).

t 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

ransfers 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:

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.

on, 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.

sing 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