[Federal Register Volume 63, Number 188 (Tuesday, September 29, 1998)]
[Rules and Regulations]
[Pages 51859-51862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25951]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 644

[Docket No. 980305056-8245-02; I.D. 020398B]
RIN 0648-AK88


Atlantic Billfishes; Atlantic Blue Marlin and Atlantic White 
Marlin Minimum Size; Billfish Tournament Notification Requirements; 
Atlantic Marlin Bag Limit

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Interim rule; amendment; extension of expiration date; response 
to comments; request for comments.

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SUMMARY: By interim rule, published in the Federal Register on March 
24, 1998, NMFS increased the minimum size limits for Atlantic blue 
marlin (BUM) and Atlantic white marlin (WHM) respectively, and required 
operators of tournaments involving any Atlantic billfish to notify NMFS 
at least 4 weeks prior to commencement. NMFS extends this interim rule 
for an additional 180 days, and amends it to increase the minimum size 
limit for Atlantic BUM to 99 inches LJFL (251 cm); establish a 
recreational bag limit of one Atlantic BUM or WHM per vessel per trip; 
and grant the Assistant Administrator for Fisheries, NOAA (AA) 
authority to adjust the bag limit. The intent of this amendment and 
extension is to continue to reduce overfishing of Atlantic BUM and WHM, 
and implement the recommendation of the International Commission for 
the Conservation of Atlantic Tunas (ICCAT), as required under the 
Atlantic Tunas Convention Act (ATCA). These actions are necessary until 
an amendment to the Atlantic Billfish Fishery Management Plan is 
proposed and approved, and other more comprehensive measures as 
established by that amendment, are implemented by final rule.

DATES: Effective September 23, 1998, the regulations published on March 
24, 1998 at 63 FR 14030 are extended through March 19, 1999. The 
amendments in this rule are effective September 24, 1998 through March 
19, 1999. Comments on the increase in minimum size limit for Atlantic 
BUM to 99 inches LJFL and the establishment of an Atlantic marlin bag 
limit must be received no later than November 23, 1998.

ADDRESSES: Comments should be mailed to Dr. Rebecca Lent, Highly 
Migratory Species Management Division, NMFS, 1315 East-West Highway, 
Silver Spring, MD 20910. Copies of this document and documents 
supporting this action are available from Buck Sutter, Highly Migratory 
Species Management Division, NMFS, Southeast Regional Office, 9721 
Executive Center Drive N, St. Petersburg, FL 33702. Comments regarding 
the collection-of-information requirement contained in this extended 
interim rule, as amended, should be sent both to one of the previous 
addresses and to the Office of Management and Budget (OMB), Washington, 
DC 20503 (Attention: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: Buck Sutter, 813-570-5447; fax: 813-
570-5364.

SUPPLEMENTARY INFORMATION: Under section 305(c) of the Magnuson Fishery 
Conservation and Management Act (Magnuson-Stevens Act), NMFS 
promulgated an interim rule (63 FR 14030, March 24, 1998) that 
increased the minimum size limits for Atlantic BUM and WHM to 96 inches 
(244 cm) lower jaw-fork length (LJFL) and 66 inches (168 cm) LJFL, 
respectively, and required operators of tournaments involving any 
Atlantic billfish to notify NMFS at least 4 weeks prior to 
commencement. The interim rule was intended to reduce overfishing of 
Atlantic BUM and WHM and to implement a recommendation of ICCAT to 
reduce Atlantic BUM and WHM landings by 25 percent for each of these 
species from 1996 levels and to improve current monitoring, data 
collection, and reporting requirements. The interim rule also directly 
responded to a petition for rulemaking from the National Fisheries 
Institute (NFI), received on July 28, 1997, which recommended mandatory 
registration and reporting requirements for all billfish tournaments. 
NMFS announced receipt of the petition in a Federal Register notice on 
August 28, 1997 (62 FR 45614), and made copies available to interested 
parties, including members of the Billfish Advisory Panel (AP). A 
discussion of the management and stock status of Atlantic BUM and WHM, 
ICCAT's recommendation relating to Atlantic billfish, and the need for 
interim action is found in the preamble to the interim rule.
    The increased minimum sizes for Atlantic BUM and WHM, established 
in the original interim rule, were selected based on the 1994 to 1996 
size distribution of recorded landings for those species and were 
calculated to reduce Atlantic BUM and WHM landings by number and weight 
during 1998 to provide an adequate timeframe to determine whether these 
size measures were an effective means to meet U.S. billfish landing 
caps by the end of 1999. The ICCAT recommendation restricts U.S. 
landings to 26.2 mt whole weight (ww) of BUM and 2.48 mt ww of WHM. The 
increased minimum sizes were expected to reduce the number and weight 
of landings of Atlantic BUM by 46 percent and 39 percent, respectively, 
and of Atlantic WHM by both number and weight by 53 percent from 1996 
levels.
    The size limits established in the interim final rule were based on 
the best available information at the time. However, an analysis of a 
more extensive database that includes 1997 landings has since been 
completed. This information indicates that the minimum size of 96 
inches (244 cm) LJFL for Atlantic BUM may not be adequate to achieve 
the required 25 percent reduction in landings. Application of a 96-inch 
(244 cm) LJFL limit on the size frequency of Atlantic BUM landed during 
1995 to 1997 results in a reduction in landings of only 21 percent by 
weight and 32 percent by number. Therefore, the minimum size for 
Atlantic BUM must be increased to 99 inches (251 cm) LJFL to help 
ensure full compliance with the 1997 ICCAT recommendation, with a 
projected reduction in landings of 32.44 percent by weight and 44.33 
percent by number. Application of a 66-inch (168 cm) LJFL limit on the 
size frequency of WHM landed during 1995 to 1997 results in a projected 
reduction in landings of 42 percent by weight and 47 percent by number. 
While this reduction in WHM landings is less than the interim rule 
estimate of 53 percent by weight and by number, it is still sufficient 
for compliance with the 1997 ICCAT recommendation. Therefore, this 
extended interim rule, as amended, maintains the 66-inch (168 cm) LJFL 
minimum size for Atlantic WHM.
    A complicating factor in evaluating minimum size for the 
recreational billfish fishery is the source of data used to evaluate 
management alternatives. Actual landings (weight, number, and size 
distributions) by U.S. recreational anglers are unknown; minimum 
landing estimates are calculated from billfish tournaments and from the 
Large Pelagic Survey (LPS). The only available size distribution data 
are collected from the Recreational Billfish Survey of tournaments, and 
it is unknown whether this information accurately reflects the true 
distribution of recreational landings. Although the use of increased 
minimum sizes will reduce

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the number of fish that are landed and provide immediate reductions in 
current fishing mortality levels, the exact impact on the total 
mortality is unknown, since size limits and resulting landing reduction 
estimates were based on fish taken only during fishing tournaments.
    The impact of handling or release mortality must also be considered 
in evaluating the effectiveness of any management measure requiring the 
release of live fish (e.g., fish less than the minimum size). Accurate 
measures of release mortality are complicated by a variety of factors, 
including fishing techniques (e.g., type of tackle and bait, length of 
fight), location on fish of hooking, water temperature, handling time, 
size of the fish, and many other parameters.
    Considering the limits the above factors place on using minimum 
sizes as the only measure for complying with the ICCAT recommendation, 
NMFS also amends the interim rule to establish a recreational bag limit 
of one Atlantic marlin (either BUM or WHM) per vessel per trip. NMFS 
also amends the interim rule to grant the AA the authority to adjust 
the bag limit, with 3-days notice, including an adjustment to a zero 
bag limit. This will allow the bag limit to be reduced to zero when the 
recommended ICCAT landing cap of 26.2 mt ww Atlantic BUM and 2.48 mt ww 
WHM (25 percent reduction from 1996 Atlantic BUM and WHM landings) is 
reached.
    Retention of more than one billfish (of any species) during a 
recreational trip is relatively rare. It has been estimated that over 
70 percent of recreational trips do not result in a landed billfish 
(Fisher and Ditton, 1992). There are occasional trips, however, where 
more billfish are encountered, and limiting landings to one fish per 
vessel could significantly reduce fishing mortality. One concern 
associated with bag limits is that ``culling'' of fish could occur, 
that is the retention of several fish until fishing is completed, then 
the retention of the bag limit. However, given the conservation ethics 
of most billfish anglers, culling is not anticipated to be a problem. 
Therefore, the extended interim rule, as amended, would establish a one 
marlin (either BUM or WHM) per vessel, per trip bag limit. The AA would 
have the authority, under this alternative, to adjust the bag limit 
with a 3-day notice, including a zero bag limit.
    In a survey of recreational billfish anglers who participate in 
billfish tournaments, Fisher and Ditton (1992) found that 50.1 percent 
of the sample population either was neutral or agreed with a one 
billfish per vessel, per day bag limit. Interestingly, results of the 
mail survey by Fisher and Ditton indicated that more anglers supported 
a zero bag limit (74.2 percent were either neutral or in agreement with 
this action). At their September 1998 meeting, Billfish AP members 
supported a one billfish per vessel, per trip bag limit, but were 
opposed to granting the AA authority to reduce the bag limit to zero.
    Shortly, NMFS will propose an amendment to the Atlantic Billfish 
FMP, that includes a comprehensive set of management measures 
addressing overfishing and long-term rebuilding of overfished Atlantic 
billfish, including BUM and WHM, and will propose regulations 
implementing these measures. To allow time for the FMP Amendment and 
rulemaking processes to be completed, the interim rule needs to be 
extended to ensure that 1999 BUM and WHM landings are at least 25 
percent below 1996 levels as required by the ICCAT. Therefore, in 
addition to the amendments discussed above, the interim rule, which 
would otherwise expire on September 23, 1998, is extended through March 
19, 1998.

Comments Received to Date

    A 4-week notification requirement for tournaments involving 
Atlantic billfish was originally included in a proposed rule to 
consolidate regulations for Atlantic Migratory Species Fisheries (61 FR 
57361, November 6, 1996). Five public hearings were held to receive 
comments on the proposed consolidated rule. Comments addressing 
billfish tournament requirements were also received by mail and fax and 
were summarized in the interim rule, along with responses to these 
comments.
    Subsequent to the publication of the interim rule, seven public 
hearings, announced in the Federal Register on April 9, 1998, were held 
to receive comments. NMFS found no opposition to the interim rule 
regulations at these hearings. There were 13 letters received during 
the comment period; 5 of these did not address the interim rule. 
Comments pertaining to Atlantic billfish management issues beyond the 
scope of the interim rule will not be addressed here. There was general 
support for the interim management measures; responses to additional 
comments on the interim rule are provided.

Responses to Comments

    Comment 1: One commenter stated concern that the tournament 
reporting requirements should help to monitor billfish mortality but 
doubted if the universe of tournaments is known or even closely 
estimated.
    Response 1: NMFS agrees that the universe of tournaments is not 
known, and plans to use the tournament registration requirement to 
better estimate the total number of tournaments. Additional measures to 
monitor Atlantic billfish landings are being considered in the 
development of the Atlantic Billfish FMP amendment.
    Comment 2: The NFI found it difficult to verify the statement that 
landings will be reduced by 46 percent by number and 39 percent by 
weight for Atlantic BUM and by 53 percent by both number and weight of 
Atlantic WHM and that these figures should be based on cumulative 
frequency distribution plots or suitable tables listing the numbers of 
Atlantic BUM and WHM sampled by LJFL. This commenter also felt that the 
rule should explicitly state the assumptions underlying conclusions 
about the effect that larger minimum sizes will have on total 
recreational billfish landings based on the existing sample size 
frequency.
    Response 2: NMFS agrees. The Atlantic BUM and WHM minimum sizes and 
associated reductions in landings established in the existing interim 
final rule were based on the best available information at the time. 
However, further analysis using subsequent information, which includes 
1997 Atlantic BUM and WHM landings, indicates that the resultant 
reductions in landings from the increased minimum size were 
overestimated. A discussion of the new analysis and its results is 
mentioned in the section of supplementary information. Further detail, 
as requested by NFI, is contained in the EA/RIR document supporting 
this action.
    Comment 3: The Blue Water Fishermen's Association (BWFA) supported 
the interim measures but stated that these measures alone are not 
sufficiently strict to ensure that the United States meets ICCAT 
Atlantic BUM and WHM landing caps and recommendations. BWFA wants the 
interim rule to be implemented in concert with strict quota monitoring 
to ensure that ICCAT caps are not exceeded. There were three other 
written comments expressing similar concern.
    Response 3: NMFS also agrees that the increases in minimum sizes of 
Atlantic marlin may not be adequate to achieve the required 25-percent 
reduction in Atlantic BUM and WHM landings. Further the interim rule is 
being amended to ensure that the ICCAT recommendation is met. The 
minimum size for BUM has been increased to 99 inches LJFL. In addition, 
NMFS is establishing a one Atlantic marlin per

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vessel, per trip bag limit and is granting the AA the authority to 
adjust the bag limit with a 3-day notice, including adjusting to a zero 
bag limit. Additional conservation measures to ensure that the United 
States meets ICCAT landing caps and recommendations are being developed 
as part of the Atlantic Billfish FMP amendment.
    Comment 4: BWFA commented that NMFS should also implement a strict 
``landing tag'' program immediately to ensure that the quota is not 
exceeded. Similarly, NFI recommended that NMFS require all tournaments 
to obtain a permit to land and/or target, in the case of catch and 
release tournaments, Atlantic marlin.
    Response 4: NMFS is considering requiring a landing tag to be 
affixed to all recreationally landed Atlantic billfish as part of the 
Atlantic Billfish FMP amendment. However, the success of such a tagging 
program is dependent on self-reporting, and even then, it would not 
ensure that the ICCAT recommended landing cap is not exceeded. More 
comprehensive management measures are being developed as part of the 
Atlantic Billfish FMP amendment.
    Comment 5: NFI is disappointed with the reporting requirements of 
the interim rule and concerned that NMFS \1\ failure to implement 
anything more than a negligible improvement in billfish monitoring will 
jeopardize compliance with the ICCAT recommendation and undermine the 
credibility of the United States in the ICCAT forum. BWFA also comments 
that the United States has failed to monitor the recreational sector 
after years of advocating strict commercial measures and that the 
disparity in treatment undermines our credibility at ICCAT. Both NFI 
and BWFA commented on how much of the effort by U.S. recreational 
fishermen goes entirely unregulated, undetected, and undocumented. NFI 
specifically commented that NMFS ignored billfish landings from private 
and charter fishing activities not associated with tournaments and 
ignores comments that NFI and other organizations have submitted over 
several years on the need to improve monitoring of recreational 
fisheries for Atlantic marlin and sailfish, especially for charter and 
tournament businesses. Nine additional commenters expressed concern 
about discriminatory regulations, and they want NMFS to hold the 
sportfishing sector accountable for its associated fish mortalities.
    Response 5: NMFS agrees that all sectors of the billfish fishery 
must be held accountable for their associated billfish mortality. These 
interim management measures are intended only as initial actions until 
a more comprehensive set of management measures can be implemented. 
Actions to improve monitoring, including private and charter/party 
vessels, are being developed for both the proposed Billfish Amendment 
and the proposed HMS FMP. Alternatives include requiring (1) permits 
and logbook reporting for charter/headboat operations targeting 
Atlantic highly migratory species; (2) observer coverage onboard 
charter/headboats targeting highly migratory species; (3) a landing tag 
to be affixed to all recreationally landed Atlantic Billfish; and (4) 
vessel permits for all U.S. registered vessels fishing recreationally 
for Atlantic highly migratory species.
    Comment 6: BWFA requested that NMFS require every tournament to 
submit data on catches and effort, not just selected tournaments. NFI 
requested that there be 100 percent tournament reporting selection 
until a statistically based sampling program is implemented.
    Response 6: The total number of tournaments held is unknown. Since 
implementation of the tournament registration requirement, 114 
tournaments have registered. NMFS anticipates the number of tournaments 
registered will increase as public outreach expands. A statistically 
based sample of tournaments will be selected for reporting in order to 
reduce the potential burden on NMFS and on tournament directors. 
Currently, all registered tournaments that land billfish must submit 
tournament reports. Until a statistically based sampling program is 
implemented, all tournaments be 100 percent tournaments will be 
required to report.

Classification

    NMFS extends the interim rule published on March 24, 1998, at 63 FR 
14030, as amended, for 180 days. As authorized by section 305(c)(3)(B) 
of the Magnuson-Stevens Act, an interim rule may be extended for an 
additional 180 days provided the public has had an opportunity to 
comment on the interim rule and, at the time of this extension, a 
proposed plan amendment to address the overfishing on a permanent basis 
is being actively pursued. The public has had opportunity to comment on 
the interim rule as noted in the supplementary information section. 
These comments were considered in determining the amendment and 
extension of this interim rule, and responses to comments have been 
provided. The Billfish AP commented on various aspects of this extended 
rule, as amended, at their September 1998 meeting. NMFS is preparing an 
amendment to the Atlantic Billfish FMP outlining a rebuilding plan and 
concomitant management strategies to reduce bycatch and bycatch 
mortality. The amendment is being developed using the best possible 
science and input from the Billfish AP, and various outreach forums 
will ensure public input into this process.
    The AA has determined that this extension of the interim rule is 
necessary to continue to reduce overfishing of BUM and WHM and to meet 
U.S. obligations under ICCAT. The extension of the interim rule is 
consistent with the Magnuson-Stevens Act and other applicable laws.
    The actions set forth in the extended interim rule respond to the 
over-exploitation of these resources in the Atlantic Ocean and to the 
need to improve current monitoring, data collection, and reporting 
procedures, as well as to promote the release of live billfish. The 
United States is also obligated, under ATCA, to implement ICCAT 
recommendations. Failure to implement these actions in a timely manner 
may result in failure to meet ICCAT obligations and increase the need 
for more severe restrictions in the future.
    The AA has determined that, under 5 U.S.C. 553(b)(B), there is good 
cause to waive the requirement for prior notice and an opportunity for 
public comment as such procedures would be contrary to the public 
interest. The modifications in this rule are necessary to ensure 
compliance with international legal obligations. Additionally, these 
modifications were discussed in a public AP meeting. To ensure wide 
circulation of the extended interim measures, as amended, NMFS will 
work with the Billfish AP, recreational fishing organizations, 
sportfishing media, and fishing tournaments known to involve billfish, 
to notify affected entities. In addition, notice will be provided 
through the HMS FAX network and NOAA weather radio.
    Further, under 5 U.S.C. 553(d)(3), the AA has determined that there 
is good cause, as explained above, to waive the 30-day delay in 
effective date. NMFS will rapidly communicate the new regulations to 
fishery participants through its FAX network, HMS Information Line, 
billfish brochure, and NOAA weather radio.
    The extension of this interim rule has been determined to be not 
significant for purposes of E.O. 12866.
    Notwithstanding any other provision of law, no person is required 
to respond

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to nor shall a person be subject to a penalty for failure to comply 
with a 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 control 
number. This extended interim rule contains the same collection-of-
information requirement subject to the PRA. Fishing tournament 
registration and selective reporting in Sec. 644.10 have already been 
approved by OMB under control number 0648-0323 and estimated at 10 
minutes per report. Send comments regarding this burden estimate or any 
other aspect of this collection-of-information requirement including 
suggestions on how to reduce or eliminate this burden to NMFS and OMB 
(see ADDRESSES).
    Because prior notice and an opportunity for public comment are not 
required to be provided for the extension of this interim rule by 5 
U.S.C. 553, or any other law, the analytical requirements of the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

List of Subjects in 50 CFR Part 644

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: September 23, 1998.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 644 is amended 
as follows:
50 CFR CHAPTER VI

PART 644--ATLANTIC BILLFISHES

    1. The authority citation for part 644 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    2. Section 644.21 is amended by suspending paragraph (e) and adding 
paragraph (f), effective from September 24, 1998, through March 19, 
1999, to read as follows:


Sec. 644.21  Size limits.

* * * * *
    (f) The following minimum size limits, expressed in terms of lower 
jaw-fork length (LJFL), apply for the possession of billfish shoreward 
of the outer boundary of the EEZ, regardless of where caught:
    (1) Blue marlin-99 inches (251 cm)
    (2) White marlin-66 inches (168 cm)
    (3) Sailfish-57 inches (145 cm)
    3. Section 644.26 is added, effective from September 24, 1998, 
through March 19, 1999, to read as follows:


Sec. 644.26  Catch Limits.

    (a) Only one Atlantic marlin (either a blue marlin or a white 
marlin) may be possessed or landed per vessel per trip.
    (b) If he determines after considering the most recent tournament 
and other landings data that such action is necessary to comply 
international obligations, the Assistant Administrator may increase or 
reduce the catch limit, including reduction to zero Atlantic marlin per 
vessel per trip. The Assistant Administrator will publish a notice in 
the Federal Register of any adjustment in the allowable catch limit per 
trip under this paragraph.

[FR Doc. 98-25951 Filed 9-24-98; 1:23 pm]
BILLING CODE 3510-22-P