[Federal Register Volume 61, Number 235 (Thursday, December 5, 1996)] [Rules and Regulations] [Pages 64486-64487] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-30932] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE 50 CFR Part 630 [Docket No. 960314073-6335-03; I.D. 112696C] RIN 0648-AI23 Atlantic Swordfish Fishery; Drift Gillnet Emergency Closure AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Fishery closure and final rule. ----------------------------------------------------------------------- SUMMARY: NMFS closes the drift gillnet fishery for swordfish in the Atlantic Ocean, including the Gulf of Mexico and Caribbean Sea, from December 1, 1996, through May 29, 1997. NMFS has reinitiated consultation under the Endangered Species Act for Atlantic swordfish fisheries due to new information concerning the status of the northern right whale. This closure will ensure that no irreversible and irretrievable commitment of resources is made that has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures while the consultation on this fishery is pending. EFFECTIVE DATES: The closure will be effective from December 1, 1996, through 2400 hours, local time, May 29, 1997. The amendment to part 630 will be effective November 29, 1996. FOR FURTHER INFORMATION CONTACT: John Kelly, 301-713-2347. SUPPLEMENTARY INFORMATION: The Atlantic swordfish fishery is managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.) and the Atlantic Tunas Convention Act (16 U.S.C. 971 et seq.). Because this is a Federally managed fishery, it is subject to the requirements of section 7 of the Endangered Species Act (ESA), which provides for a consultation to ensure that threatened or endangered species are not jeopardized. NMFS reinitiated consultation on the Atlantic swordfish fisheries on September 25, 1996, due to new information concerning the status of the northern right whale (Eubaleana glacialis). [[Page 64487]] During the winter of 1995-1996, an unprecedented number of right whale deaths (6-7) were reported from the Southeast right whale critical habitat/calving grounds off Georgia and Florida. Although these mortalities are not attributed to the driftnet fishery, this information changed the environmental baseline upon which all previous section 7 consultations had been conducted. Further, the Incidental Take Statement in the February 2, 1996, biological opinion has been exceeded for loggerhead turtles. Also, the Atlantic Offshore Cetacean Take Reduction Team submitted a draft take reduction plan to NMFS on November 25, 1996, which includes recommended measures to reduce incidental takes of strategic marine mammal stocks (including right whales) to below their Potential Biological Removal level within 6 months of implementation. Right whale entanglements have been documented in this fishery and the potential exists for entanglements to occur in the swordfish drift gillnet fishery during the winter months of December - April. The possibility of 15 driftnetters operating in the winter months may result in significant interactions with several species of whales including right and humpback whales, as well as ridley and loggerhead turtles. Given that this fishery has had documented interactions with right whales and that no measures have been implemented to reduce incidental takes of right whales, NMFS believes that a closure during the semiannual subquota period of December 1, 1996, through May 29, 1997, will ensure that no irreversible and irretrievable commitment of resources is made that has the effect of foreclosing the formulation or implementation of any prudent and reasonable alternative measures while the consultation is pending. Hence, NMFS is closing the directed drift gillnet fishery for the second semiannual subquota period. This closure will be effective through 2400 hours May 29, 1997, or until completion of the consultation with the issuance of a biological opinion on the swordfish drift gillnet fishery, whichever comes first. If consultation is not completed by May 3, 1997, NMFS will review the fishery and determine whether the quota can be adjusted in light of NMFS requirements pursuant to section 7(d) of the ESA. Pursuant to this emergency closure: (1) No one aboard a vessel using or having on board a drift gillnet may fish for swordfish from the North Atlantic swordfish stock; and (2) no more than two swordfish per trip may be possessed on board a vessel using or having on board a drift gillnet in the North Atlantic Ocean, including the Gulf of Mexico and Caribbean Sea, north of 5 degrees N. lat., or landed in an Atlantic, Gulf of Mexico, or Caribbean coastal state. This closure has no effect on the swordfish quota in any other quota period. Classification This action is being issued as an emergency rule under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. Sec. 1855(c). The Assistant Administrator, NMFS, finds that, in order to ensure that no irreversible and irretrievable commitment of resources is made that has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures while consultation under section 7(a) of ESA takes place on this fishery, good cause exists to waive the requirement to provide prior notice and an opportunity for public comment, under authority at 5 U.S.C. Sec. 553(b)(B), as such procedures would be contrary to the public interest. For the same reason, there is good cause, under authority at 5 U.S.C. Sec. 553(d)(3), to waive the requirement for a 30-day delay in effectiveness. Finally, as notice and an opportunity for public comment are not required by 5 U.S.C. Sec. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. Sec. 601 et seq., are inapplicable. This action is exempt from review under E.O. 12866. List of Subjects in 50 CFR Part 630 Fisheries, Fishing, Reporting and recordkeeping requirements, Treaties. Dated: November 29, 1996. Gary Matlock, Acting Assistant Administrator for Fisheries, National Marine Fisheries Service. For the reasons set forth in the preamble, 50 CFR part 630 is amended as follows: PART 630--ATLANTIC SWORDFISH FISHERY 1. The authority citation for part 630 continues to read as follows: Authority: 16 U.S.C. 1801 et seq. and 16 U.S.C. 971 et seq. 2. In Sec. 630.7, paragraph (aa) is added to read as follows: Sec. 630.7 Prohibitions. * * * * * (aa) Notwithstanding any other provision of part 630, (1) no one aboard a vessel using or having on board a drift gillnet may fish for swordfish from the North Atlantic swordfish stock; (2) no more than two swordfish per trip may be possessed on board a vessel using or having on board a drift gillnet in the North Atlantic Ocean, including the Gulf of Mexico and Caribbean Sea, north of 5 degrees N. lat.; and (3) no more than two swordfish per trip may be landed from a vessel using or having on board a drift gillnet in an Atlantic, Gulf of Mexico, or Caribbean coastal state. [FR Doc. 96-30932 Filed 11-29-96; 4:44 pm] BILLING CODE 3510-22-F