[Federal Register Volume 59, Number 212 (Thursday, November 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27188]


[[Page Unknown]]

[Federal Register: November 3, 1994]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 630

[Docket No. 931078-4286; I.D. 100593C]
RIN 0648-AF42

 

Atlantic Swordfish Fishery

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 implement a voluntary pilot 
program that will allow limited retention of undersized swordfish, in 
excess of the trip allowance, for scientific purposes critical to 
proper stock assessment. Swordfish so collected must be donated through 
the Second Harvest National Foodbank Network to needy individuals. The 
intended effects are to obtain additional information regarding the 
harvest, mortality, and biological characteristics of swordfish less 
than the minimum size, while investigating the potential for avoiding 
waste of swordfish that would otherwise be discarded dead.

EFFECTIVE DATE: December 5, 1994.

ADDRESSES: Copies of documents supporting this action may be obtained 
from Richard H. Schaefer, Director, Office of Fisheries Conservation 
and Management, NMFS, 1335 East-West Highway, Silver Spring, MD 20910. 
Comments on the information collection requirements should be sent to 
Richard H. Schaefer and to the Office of Information and Regulatory 
Affairs, Office of Management and Budget (OMB), Washington, DC 20503 
(Attention: Desk Officer for NOAA).

FOR FURTHER INFORMATION CONTACT: Richard B. Stone, Chief, Highly 
Migratory Species Division; telephone: (301) 713-2347.

SUPPLEMENTARY INFORMATION: The Atlantic swordfish fishery is managed 
under the Fishery Management Plan (FMP) for Atlantic Swordfish and its 
implementing regulations at 50 CFR part 630 under the authority of the 
Magnuson Fishery Conservation and Management Act (16 U.S.C. 1801 et 
seq.) (Magnuson Act) and the Atlantic Tunas Convention Act (ATCA) (16 
U.S.C. 971 et seq.). Regulations issued under the authority of the ATCA 
carry out the recommendations of the International Commission for the 
Conservation of Atlantic Tunas (ICCAT).

Background

    In June 1991, NMFS implemented swordfish regulations, consistent 
with the ICCAT recommendations, that included a minimum size limit of 
41 lbs. (18.6 kg) dressed weight or 31 inches (78.7 cm) carcass length. 
The regulations include a trip allowance for undersized swordfish in an 
amount not exceeding 15 percent of the total number of swordfish 
landed. NMFS and the majority of the swordfish industry recognize the 
importance of minimizing the catch and mortality of undersized 
swordfish and remain committed to that objective.
    Although large swordfish are the preferred target of U.S. swordfish 
vessels, harvest of some undersized swordfish is unavoidable in most 
cases. Under current regulations, undersized swordfish in excess of the 
trip allowance must be discarded, despite the fact that many of these 
fish are dead prior to being brought aboard the vessel. This results in 
waste of the resource. Further, if discards are not accurately 
reported, loss of information critical to proper stock assessment, in 
general, and to evaluation of the minimum size limit, in particular, 
also occurs.
    NMFS, in cooperation with Blue Water Fishermen's Association, other 
members of the swordfish industry, National Fisheries Institute, and 
Second Harvest National Foodbank Network (Second Harvest), proposed 
implementing a pilot program to address these issues. Under the pilot 
program, voluntary participants selected by NMFS will be allowed to 
land, in excess of the 15 percent allowance, undersized swordfish that 
were dead prior to being brought aboard the vessel. Reporting and 
marking requirements will ensure the integrity of the program. 
Undersized fish retained in excess of the trip limit would be donated 
through Second Harvest to needy individuals.
    At the November 1992 ICCAT meeting, the U.S. delegation discussed 
the proposed pilot program. It was agreed that the program was 
consistent with current ICCAT recommendations for swordfish and that it 
would be useful for evaluating the effectiveness of the minimum-size 
regulation. The United States will provide ICCAT with all data 
collected from the program.
    Second Harvest is a tax-exempt organization that solicits surplus 
products and distributes them through a network of more than 45,000 
qualified recipient organizations that provide food to millions of 
needy, ill, or infant Americans.
    Further information is available from the Federal Register notice 
of the proposed rule on the Atlantic Swordfish Fishery (58 FR 68109, 
Dec. 23, 1993). This final rule makes some modifications to the 
proposed rule. The modifications are made after consideration of public 
comments, to make the responsibilities of program participants more 
clear and to ensure the enforceability of the regulations. These minor 
modifications are explained in the Description of the Program section 
of this preamble. NMFS realizes that there is a need to develop 
guidelines for donation programs for bycatch. A task force will be 
formed by NMFS to look into this issue. Information obtained from this 
pilot study, and task force meetings will begin the process of 
addressing NMFS standards for bycatch donation programs.

Program Objectives

1. Improve Scientific Information Regarding Catch, Mortality, Discard 
Rate, and Biological Characteristics of Undersized Swordfish

    The program will provide an alternative source of data for 
estimating discards in excess of the trip allowance for undersized 
swordfish; discourage unreported discarding of dead undersized 
swordfish; and provide an opportunity to obtain additional information 
(e.g., age, size, sex) about undersized swordfish. This is important in 
maintaining catch per unit of effort indices for small swordfish, which 
are critical to ICCAT stock assessments.

2. Avoid Waste of a Valuable Resource

    Dead fish that would have been discarded will be donated, through 
an organized, controlled program, to needy individuals.

3. Encourage Tagging and Release of All Live Undersized Swordfish by 
the Participants

    The regulations require the owner or operator of a vessel to make a 
reasonable effort to tag and release live swordfish. In addition, the 
regulations encourage the participants to tag small bluefin tuna, 
bigeye tuna, yellowfin tuna, and sharks when possible.

4. Implement the Program in a Manner That Will Not Jeopardize or 
Undermine the Broader Management Objective of Minimizing the Mortality 
of Undersized Swordfish

    The regulations implementing the program contain every practicable 
safeguard to ensure this.

Description of the Program

Non-profit

    Although participants will incur costs associated with donated fish 
(harvesters--handling and processing, dealers--storage, Second 
Harvest--distribution), they will receive no direct economic benefit 
from landing and donating the undersized swordfish. Any purchase, sale, 
trade, or barter of undersized swordfish in excess of a vessel's trip 
allowance for undersized swordfish landed under the pilot program is 
prohibited.

Selection Process

    NMFS will select participants (dealers and vessels) from among 
volunteers. Factors that will be considered in the selection process 
include: (1) History of voluntary participation in NMFS cooperative 
scientific programs, e.g., tag and release, sea sampling, collection of 
biological samples; (2) whether both vessel and dealer volunteers can 
be matched in an area throughout the year (including truck routes) to 
ensure distribution of donated fish; (3) representative coverage of the 
fishery to the extent possible; and (4) possible exclusion from the 
program of vessels and dealers with Magnuson Act, Lacey Act, or ATCA 
violations. Item (4) was expanded from the proposed rule, because NMFS 
does not want participants in the program who have serious violations, 
but NMFS wants to retain discretionary authority to include 
participants that have only minor violations.

Scope of the Program

    The pilot program is divided into seven geographic regions: Gulf of 
Mexico, Florida East Coast, South Atlantic Bight, Mid-Atlantic Bight, 
Northeast Coastal, Northeast Distant Waters, and Caribbean. Initial 
efforts will be directed at establishing the program in the Gulf of 
Mexico region and then along the Atlantic seaboard. NMFS will select 
only one or two vessels initially, with only six vessels selected in 
the first year. NMFS intends to have 100 percent observer coverage of 
these vessels. After the logistics are worked out and any unforeseen 
problems are resolved, additional vessels/regions will be gradually 
added during the second year until the pilot program is established in 
all seven regions. Ultimately, two to four vessels and cooperating 
dealers will be selected to participate in each region.

Responsibilities of Participating Fishermen

    A selection letter from NMFS, identifying the vessel as a 
participant in the program, is required to be maintained aboard the 
vessel and made available for inspection. Non-participating vessels 
remain subject to the current limits on the retention of undersized 
swordfish. Participants will be required to accommodate on board 
observers.
    Undersized swordfish that are dead when brought on board the vessel 
and that will be donated are required to be properly prepared and 
stored. All live undersized swordfish to the extent possible must be 
tagged, released, and reported to NMFS on logbook and tagging records. 
Participants are required to handle properly, record, and transfer to 
selected dealers all undersized swordfish in excess of the trip 
allowance, i.e., such swordfish or parts thereof may not be retained 
for the crew, purchased, sold, bartered, traded, or given to anyone 
other than a selected dealer for transfer to an authorized recipient 
(Second Harvest).
    The vessel owner or operator is required to notify the NMFS Office 
of Enforcement, at the phone number listed in the selection letter, and 
the dealer, 24 hours in advance, or as otherwise specified by NMFS, of 
landing information, including date, approximate time, location, and 
estimated number of fish to be donated. Specific instructions will be 
provided by NMFS to address logistics and to facilitate shorter 
notification in areas where the fishing grounds, such as the Florida 
Straits, are close to the landing locations. The advance notification 
and landing requirements were modified from the proposed rule to allow 
better enforcement and tracking of the donated swordfish.
    The vessel owner or operator, prior to offloading, must tag donated 
swordfish with individually numbered tags provided by NMFS. Dealers may 
specify more than one facility where they expect to off-load vessels in 
the program. All fish must be in whole or dressed form through off-
loading, and all swordfish from a vessel's trip must be off-loaded at 
the same facility. A list of selected dealers will be provided by NMFS 
to participating vessels.
    The individual carcass weights of all donated fish must be clearly 
indicated, using a NMFS-specified code, on the tally (weigh-out) sheets 
that must be submitted to NMFS, as specified in the current 
regulations.
    Transfer of swordfish between vessels is prohibited, as currently 
specified in the regulations.

Responsibilities of Participating Dealers

    A selection letter from NMFS, identifying the dealer as a 
participant in the program, must be maintained at the dealer's place of 
business and be made available for inspection.
    Donated swordfish may be received only from vessels selected by 
NMFS. A list of selected vessels will be provided by NMFS to 
participating dealers.
    Dealers are responsible for weighing all undersized swordfish to be 
donated and recording the individual carcass weights, using a NMFS-
specified code, on the dealer reports currently required. Information 
regarding vessel and dealer identification and the date that fish were 
received must be included on those reports. Reports must be submitted 
twice monthly to NMFS, as currently required by the regulations.
    Swordfish for donation must be separated from swordfish eligible 
for sale and maintained without removal of the donation tag.
    The dealer is required to obtain a bill of lading from Second 
Harvest, its affiliate, or agent for all swordfish donated. A copy of 
the bill of lading and weigh-out sheet must be submitted to the vessel 
that landed the swordfish (along with normal dealer weigh-out/trip 
settlement sheets). The types of forms to be used are more specific 
than indicated in the proposed rule, but no additional forms have been 
required.

Responsibilities of Second Harvest

    Donated swordfish or any part thereof cannot be purchased, sold, 
bartered, or traded.
    Donated swordfish must be made available for use as soon as 
possible to ensure the greatest freshness and palatability.
    Second Harvest, its affiliates or agents, assume responsibility for 
donated swordfish upon receipt from the dealer, including 
transportation, quality control of product, processing, and 
distribution to the needy.
    Transportation is to be provided by Second Harvest to ensure timely 
collection and distribution of donated swordfish.
    Upon pickup of swordfish, Second Harvest, its affiliate or agent 
must provide dealers with bills of lading that include, or have 
attached, the names and permit numbers of fishing vessels and dealers 
involved in donating the swordfish, date of pickup, and tag number with 
individual carcass weight of each swordfish received. Second Harvest, 
its affiliates, or agents must provide copies of bills of lading with 
attachments to Second Harvest headquarters, which will provide 
duplicate copies to NMFS.
    Second Harvest's affiliates or agents are responsible for 
distributing donated swordfish to local charities, which will process 
and prepare the swordfish for consumption by needy individuals. During 
discussions with Second Harvest representatives on processing and 
preparation, the matter of liability was considered. No modification 
was necessary in this final rule because the Good Samaritan laws in 
each state adequately cover the issue.

Implementation

    The pilot program could continue for 2 years, subject to review and 
evaluation. NMFS will monitor the program and prepare an annual report 
evaluating the results. Results from this study will be presented to 
ICCAT. If the program is achieving its purposes, and there is 
concurrence from ICCAT, the program could be continued beyond 2 years. 
If the program is not achieving its purpose or is no longer in 
conformance with the recommendations of ICCAT, NMFS will terminate the 
program.

Comments and Responses

    Comment 1: This program would provide the industry and NMFS data on 
the real numbers of live and dead fish caught, which are needed to 
manage the fishery. At the same time, the program would feed the hungry 
children of our Nation while not changing the catch or the quota.
    Response: NMFS agrees. Current estimates of the mortality for fish 
hooked on longline are from observation data that 70 percent of hooked 
fish are dead when brought alongside the vessel. This pilot program 
provides that all small swordfish brought alongside must either be 
tagged and released alive, landed dead as part of the 15 percent 
tolerance, or tagged dead for transfer to Second Harvest. This ensures 
that accurate information will be collected on live and dead small 
swordfish, with accurate length frequency data on all swordfish less 
than the minimum size. In addition, this program will increase the 
number of tagged and released small fish that potentially can provide 
more information on the growth and movement of small swordfish.
    Comment 2: This program would provide much-needed protein to the 
needy. Food banks are always short of nutritious, high-protein foods. 
While this small pilot program would only supply a small amount against 
a tremendous need, it would make a difference.
    Response: If current estimates of catch, tolerance, number of 
discards, and average weights are correct, the pilot program in full 
operation could supply the Second Harvest network about 42,000 lbs. 
(19.05 metric tons) landed weight per year.
    Comment 3: This is a good, small-scale program to be closely 
monitored by NMFS that would deal with the problem of dead bycatch. It 
would serve as an excellent pilot, because if it is abused NMFS has the 
authority to terminate the program.
    Response: NMFS agrees.
    Comment 4: This project would promote understanding of the benefits 
of fish to the needy, who currently underutilize fish as a protein 
source. At the same time, it would not change the number of swordfish 
caught or killed, only the number of dead swordfish thrown overboard.
    Response: Second Harvest is working closely with NMFS on this 
program; every opportunity will be taken to promote the benefits of 
seafood consumption. Further, every effort has been made in the final 
rule to ensure that only those fish already dead will be retained for 
contribution to the Second Harvest.
    Comment 5: Placing requirements on times and locations of landings 
will reduce the number of volunteers who are willing to participate in 
the pilot program.
    Response: The landing requirements will be examined in the pilot 
program along with other aspects of the process. Provisions in the 
final rule allow the Assistant Administrator for Fisheries to modify 
landing requirements after consultation with the industry and law 
enforcement officials.
    Comment 6: Observers must be placed on all participating vessels to 
ensure that the vessels' crews comply with the provisions of the pilot 
program.
    Response: NMFS intends to have 100 percent observer coverage on the 
vessels the first year and then evaluate whether 100 percent coverage 
is necessary for the entire pilot study.
    Comment 7: NMFS must ensure that this pilot program is not used as 
an excuse to violate tolerance laws.
    Response: In the final rule, landing restrictions, record keeping 
requirements, selection of participants, and enforcement are all used 
to help ensure against abuse of the tolerance regulations. In addition, 
as previously stated, the participating vessels are required to notify 
NMFS Enforcement 24 hours prior to each landing of the expected time 
and location of arrival.
    Comment 8: This program is not necessary for swordfish management.
    Response: ICCAT has sanctioned this program as part of its overall 
international research program. Reliable data on small fish are 
necessary to manage Atlantic swordfish adequately. Knowledge of stock 
distribution will have wide implications for stock analysis and future 
management options. Increased tagging of live fish and their subsequent 
recovery, with all the analytical implications, will benefit the NMFS 
pelagic tagging program, management decisions (e.g., information for 
possible time/area closures), and the ICCAT statistical data base. This 
program also can help fulfill a social need, and provides a logical 
disposition of the specimens taken for scientific purposes.
    Comment 9: Indirect economic benefit will accrue through tax 
advantages; NMFS must ensure against economic motive for killing small 
swordfish.
    Response: Information from IRS indicates that this is not a problem 
because in general the fishermen will not get any additional tax 
benefit beyond that which already exists.
    Comment 10: In order for this program to work, NMFS must provide 
enough enforcement to overcome the incentive to kill small juveniles. 
Small swordfish will be killed to ``high-grade'' the 15 percent 
tolerance on participating pilot program vessels.
    Response: The final rule specifically forbids killing small 
juveniles, and requires that all participating vessels notify 
enforcement 24 hours prior to landing. All live fish less than the 
minimum size must be tagged and released alive by participating 
vessels. Some ``high-grading'' may occur, but it will be no more than 
current regulations allow, since all donated dead fish less than the 
minimum size must be tagged prior to landing and weigh-out. The 
regulations specifically prohibit the removal of a donation tag; vessel 
owners or operators must account for all tags.
    Comment 11: This program would divert scarce resources from NMFS 
Highly Migratory Species (HMS) program's more urgent needs.
    Response: Data collection and analysis of any kind require an 
investment of program resources. For the HMS Division, the requirements 
of collecting the data and giving the specimens to the needy take no 
more effort than collecting the data and disposing of the specimens 
after the data are collected.
    Comment 12: NMFS must address Executive Order 12898 to insure that 
minorities will not be adversely affected by mercury contamination of 
swordfish.
    Response: Mercury is cumulative with size and age in swordfish. The 
Food and Drug Administration has set 1.0 parts per million (ppm) as the 
action level for methyl mercury in fish products. Swordfish at the 
minimum size and lower test in the 0.2 ppm to 0.6 ppm range. Based on 
available data, swordfish consumed through charitable programs will not 
result in a contamination problem. Additionally, NMFS will test for 
methyl mercury levels in donated swordfish each semester throughout the 
first year.
    Comment 13: This pilot program would take away any incentive for 
longline fishermen to reduce the incidence of juvenile swordfish being 
hooked and killed.
    Response: The pilot program volunteers will encompass less than 3 
percent of the longline fleet when fully in operation. Restrictions and 
requirements are included in the program to prevent any increase in 
juvenile swordfish mortality beyond what would have occurred without 
the program.

Changes From the Proposed Rule

    Changes in this final rule from the proposed rule include some 
operational changes. The responsibility for tagging donated fish now 
rests with the owner or operator of the volunteer vessel, and all 
donated fish must be tagged prior to offloading. Volunteer vessel 
owners or operators must notify NMFS enforcement 24 hours prior to 
landing and offloading the donated fish. NMFS plans in the first year 
of operation to place observers on all participating vessels. The 
number of vessels selected in the first year is not expected to exceed 
six vessels. Volunteer vessels who have been issued a Notice of 
Violation and Assessment may be excluded from the program. All unused 
tags must be accounted for by the vessels owners or operators. In 
addition to operational changes some minor changes were made in wording 
of the text to make the meaning of certain passages more clear.

Classification

    This final rule is published under the authority of the ATCA. The 
Assistant Administrator for Fisheries, NOAA (AA), has preliminarily 
determined that this final rule is consistent with the recommendations 
of ICCAT and is necessary for management of the Atlantic swordfish 
fishery.
    This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    This final rule contains four new collection-of-information 
requirements subject to the Paperwork Reduction Act, specifically, 
application to participate in the donation program, 24-hour advance 
notice of landing donated swordfish, tagging and reporting of 
undersized fish for voluntary participants, and submission of bills of 
lading and landing receipts by Second Harvest headquarters to dealers 
and to NMFS. The public reporting burdens for these collections of 
information are estimated to average 10, 3, 2, and 15 minutes, 
respectively, per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collections of information. Requests to collect this information have 
been approved by OMB (OMB Control number 0648-0277). This final rule 
also involves three collections of information subject to the Paperwork 
Reduction Act that have previously been approved by OMB, specifically, 
fishing vessel reports (OMB Control Number 0648-0016), dealer reports 
(OMB Control Number 0648-0013), and tagging requirements (OMB Control 
Number 0648-0247). The public reporting burdens for these collections 
of information are estimated to average 6, 30, and 2 minutes, 
respectively, per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collections of information. Send comments regarding burden estimates or 
any other aspect of these collections of information, including 
suggestions for reducing the burdens, to NMFS or OMB (see ADDRESSES).

List of Subjects in 50 CFR Part 630

    Fisheries, Fishing, Reporting and recordkeeping requirements, 
Treaties.

    Dated: October 27, 1994.
Charles Karnella,
Acting 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. 630.7, paragraph (q) is revised and paragraph (y) is 
added to read as follows:


Sec. 630.7  Prohibitions.

* * * * *
    (q) Land a swordfish smaller than the minimum size specified in 
Sec. 630.23(a), except for the trip allowance for undersized swordfish, 
as specified in Sec. 630.23(b), and except as authorized in 
Sec. 630.51.
* * * * *
    (y) Purchase, sell, trade, or barter, or attempt to purchase, sell, 
trade, or barter, any swordfish or part thereof that is subject to the 
donation program in subpart D of this part, as specified at 
Sec. 630.51(b)(9), Sec. 630.51(c)(4), or Sec. 630.51(d)(5).
    3. A new subpart D is added to part 630 to read as follows:

Subpart D--Donation Program

630.50  Purpose.
630.51  Participation.
630.52  Termination.

Subpart D--Donation Program


Sec. 630.50   Purpose.

    This subpart implements a program under which swordfish from the 
North Atlantic swordfish stock that are retained in excess of the trip 
allowance for undersized swordfish specified in Sec. 630.23(b) must be 
retained for donation through the Second Harvest National Foodbank 
Network to the needy. This program is intended to obtain additional 
information regarding the harvest, mortality, and biological 
characteristics of swordfish less than the minimum size limit and to 
avoid waste of swordfish that would otherwise be discarded dead.


Sec. 630.51  Participation.

    (a) General. Owners of vessels and dealers permitted under 
Sec. 630.4 may volunteer to participate in the swordfish donation 
program by contacting the Chief, Highly Migratory Species Division, 
Office of Fisheries Conservation and Management, NMFS, 1335 East-West 
Highway, Silver Spring, MD 20910; telephone: (301) 713-2347, facsimile 
(301) 588-4967. The Chief, Highly Migratory Species Division, will 
select owners of vessels and dealers who may participate in the 
donation program and will keep selected vessel owners advised of the 
selected dealers.
    (1) Factors that will be considered in the selection process 
include:
    (i) History of voluntary participation in NMFS cooperative 
scientific programs;
    (ii) Whether both vessel and dealer volunteers can be matched in an 
area throughout the year (including truck routes) to ensure 
distribution of donated fish;
    (iii) Representative coverage of the fishery, to the extent 
possible; and
    (iv) Compliance record of volunteers. Specifically, any person who 
has been issued a Notice of Violation and Assessment (NOVA) for 
violating any provision of the Magnuson Act (16 U.S.C. 1802 et seq.), 
the Lacey Act (16 U.S.C. 3371 et seq.), or the ATCA (16 U.S.C. 971 et 
seq.), or who is currently under investigation for such a violation, 
may be excluded from the program.
    (2) Selected dealers will also be advised of the selected vessel 
owners and of authorized Second Harvest recipients of donated 
swordfish.
    (3) Second Harvest is the Second Harvest National Foodbank Network, 
116 South Michigan Avenue, Suite 4, Chicago, IL 60603-6001. Second 
Harvest affiliates are Certified Affiliate Food Banks throughout the 
United States that have a contract with Second Harvest and are 
officially part of their National Foodbank Network. Agents of Second 
Harvest are the individual charities that distribute or serve food to 
the needy from the Affiliate Food Banks, or a business designated by 
letter from Second Harvest to transport donated food between the 
foodbank and the charity.
    (b) Vessels. The owner, or their operator, of a vessel that has 
been selected to participate in the donation program and so notified in 
writing by the Chief, Highly Migratory Species Division, may retain 
swordfish from the North Atlantic swordfish stock that are in excess of 
the trip allowance for undersized swordfish specified in Sec. 630.23(b) 
under the following terms and conditions. No person may land a 
swordfish in excess of the trip allowance for undersized swordfish 
other than in accordance with these terms and conditions; any such 
landing constitutes a violation of the prohibition specified in 
Sec. 630.7(q).
    (1) The vessel's selection letter from the Chief, Highly Migratory 
Species Division, must be carried on board the fishing vessel and the 
operator must present it for inspection upon the request of an 
authorized officer.
    (2) The vessel's owner or operator must release any swordfish that 
is less than the minimum allowable size specified in Sec. 630.23(a) and 
that is alive when brought aboard the vessel, in a manner that will 
ensure maximum probability of survival. If caught by hook, such fish 
must be released by cutting the line near the hook without removing the 
swordfish from the water. The owner or operator must make a reasonable 
effort to tag each swordfish released under this paragraph (b)(2). In 
addition, participants are encouraged to tag all released small bluefin 
tuna, big eye tuna, yellowfin tuna and sharks where possible. Tags will 
be provided by the Science and Research Director. A record of each tag 
and release must be maintained and submitted to the Science and 
Research Director on forms provided with the tags.
    (3) The vessel's owner or operator must retain any swordfish that 
is dead when brought aboard the vessel.
    (4) The vessel's owner or operator must tag any swordfish that is 
retained under the donation program of this subpart prior to its off-
loading from a vessel at the facility of a selected dealer, using a 
non-reusable, individually numbered donation tag provided by the Chief, 
Highly Migratory Species Division. The donation tag is not to be 
removed by the vessel crew, dealer, or Second Harvest until the carcass 
is processed.
    (5) All tags assigned to a vessel by NMFS Highly Migratory Species 
Division, used or unused, must be accounted for by the owner/operator 
at the request of any authorized officer.
    (6) The vessel's owner or operator must off-load any swordfish that 
is retained under the donation program of this subpart only at a 
specified facility of a dealer who has been selected by the Chief, 
Highly Migratory Species Division, to participate in the donation 
program. Off-loading must begin between the hours of 8 a.m. and 6 p.m. 
local time. An owner or operator must notify the Chief, NMFS Office of 
Enforcement, by telephone at numbers given in the vessel owner's 
selection letter, and a selected dealer, at least 24 hours prior to 
off-loading swordfish under the donation program, unless stated 
otherwise in the vessel owner's selection letter.
    (7) The Assistant Administrator, upon consulting with industry 
representatives and NMFS Office of Enforcement, may change the 
requirements for off-loading by notification in the Federal Register.
    (8) All swordfish harvested during a trip by a vessel participating 
in this pilot program must be off-loaded at the same facility to a 
dealer participating in this donation program.
    (9) No vessel owner or operator may sell, trade, or barter, or 
attempt to sell, trade, or barter, any swordfish or any part thereof 
that is retained under the donation program of this subpart.
    (c) Dealers. A dealer who has been selected and so notified in 
writing by the Chief, Highly Migratory Species Division, to participate 
in the donation program may receive and retain swordfish from the North 
Atlantic swordfish stock that are in excess of a vessel's trip 
allowance for undersized swordfish specified in Sec. 630.23(b) under 
the following terms and conditions. Possession of an undersized 
swordfish other than in accordance with these terms and conditions 
constitutes a violation of the prohibition specified in Sec. 620.7(a) 
of this chapter.
    (1) Dealers must have available on their premises, or facility, the 
dealer selection letter from the Chief, Highly Migratory Species 
Division, and must present it for inspection upon the request of an 
authorized officer.
    (2) A dealer may receive swordfish in excess of a vessel's trip 
allowance for undersized swordfish only from a vessel that has been 
selected by the Chief, Highly Migratory Species Division, to 
participate in the donation program.
    (3) A swordfish that is received under the donation program must be 
kept separate from other swordfish possessed by the dealer. The 
donation tag on such swordfish may not be removed.
    (4) No dealer may sell, trade, or barter, or attempt to sell, 
trade, or barter, any swordfish, or any part thereof, that is retained 
under the donation program of this subpart.
    (5) A dealer may transfer any swordfish that is received under the 
donation program only to Second Harvest, and such swordfish may be 
transported only by Second Harvest or their designated agent. The 
dealer must obtain the receipt specified in paragraph (d)(3) of this 
section from Second Harvest or their designated agent. A copy of the 
receipt must be furnished by the dealer to the harvesting vessel.
    (6) The dealer must include individual swordfish tag numbers along 
with the associated individual carcass weights of swordfish received 
under the donation program in the twice-monthly reports required by 
Sec. 630.5(b).
    (d) Second Harvest. Second Harvest, or its affiliates or agents, 
may receive and distribute swordfish from the North Atlantic swordfish 
stock that are in excess of the trip allowance for undersized swordfish 
specified in Sec. 630.23(b) under the following terms and conditions. 
Possession of a swordfish other than in accordance with these terms and 
conditions constitutes a violation of the prohibition specified in 
Sec. 620.7(a) of this chapter.
    (1) Second Harvest may receive swordfish that are in excess of the 
trip allowance for undersized swordfish only from a dealer who has been 
selected by the Chief, Highly Migratory Species Division, to 
participate in the donation program.
    (2) Second Harvest may receive only undersized swordfish with 
donation tags attached.
    (3) Upon receiving swordfish under the donation program, Second 
Harvest must provide a bill of lading receipt that shows, or has 
affixed, individual carcass weights and associated tag numbers of 
swordfish received, the names and permit number(s) of the vessel(s) 
that harvested the swordfish, the name and permit number of the dealer, 
and the date of receipt. Such receipt must be distributed as follows: 
Original and one copy (for the vessel owner or operator) to the dealer, 
one copy to the Chief, Highly Migratory Species Division, and one copy 
retained by Second Harvest to accompany the carcass shipment until it 
is processed.
    (4) All tags received by Second Harvest affiliates or agents must 
be returned to Second Harvest and accounted for by Second Harvest at 
the request of any authorized officer, or Chief, Highly Migratory 
Species Division.
    (5) Second Harvest, its affiliates or agents, may not sell, trade, 
or barter, or attempt to sell, trade, or barter, any swordfish or any 
part thereof that is retained under the donation program of this 
subpart.
    (e) Duration of selection. A selection letter remains valid for the 
period specified therein, provided the permit issued to the 
participating vessel or dealer under Sec. 630.4 remains valid, except 
that such selection letter may be revoked by the Chief, Highly 
Migratory Species Division--
    (1) Upon the request of the participating vessel owner or dealer;
    (2) Upon issuance of a Notice of Violation and Assessment against 
the participating vessel owner or dealer for a violation of the 
Magnuson Act (16 U.S.C. 1802 et seq.), the Lacey Act (16 U.S.C. 3371 et 
seq.), or the ATCA (16 U.S.C. 971 et seq.); or
    (3) For actions not consistent with the requirements of the pilot 
program of this subpart.
    (f) Transfer. A selection letter issued under this subpart is not 
transferable or assignable. Such letter is valid only for the vessel or 
dealer for which it was issued.


Sec. 630.52  Termination.

    Upon a finding by the Assistant Administrator that the intended 
purposes of the program are not being achieved, or that the program is 
no longer in conformance with the recommendations of the International 
Commission for the Conservation of Atlantic Tunas, the Assistant 
Administrator may terminate the program by notification in the Federal 
Register.

[FR Doc. 94-27188 Filed 11-2-94; 8:45 am]
BILLING CODE 3510-22-W