[Federal Register Volume 76, Number 203 (Thursday, October 20, 2011)]
[Proposed Rules]
[Pages 65155-65157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27212]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 110211137-1599-01]
RIN 0648-BA87


Fisheries Off West Coast States; Highly Migratory Species 
Fisheries; Swordfish Retention Limits

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 regulations under the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA) to modify retention limits for 
swordfish, Xiphias gladius, harvested in the U.S. West Coast-based 
deep-set tuna longline (DSLL) fishery. The DSLL fishery is managed 
under the Fishery Management Plan for U.S. West Coast Fisheries for 
Highly Migratory Species (HMS FMP). The proposed rule would implement 
the Pacific Fishery Management Council's (Council) recommendation to 
modify HMS FMP regulations governing the possession and landing limits 
of swordfish captured in the DSLL fishery, contingent on hook type and 
fisheries observer presence. If a vessel without an observer onboard 
uses any J[hyphen]hooks (tuna hooks), the trip limit would be 10 
swordfish. If a vessel without an observer onboard uses only circle 
hooks, the trip limit would be 25 swordfish. If the vessel carries a 
NMFS-approved observer during the entire fishing trip, there would be 
no limit on swordfish retained. Regulations prohibiting the use of 
shallow[hyphen]set longline gear to target swordfish would remain in 
place.

DATES: Comments must be received by November 21, 2011.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2011-0211, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal http://www.regulations.gov. To submit comments via the e-Rulemaking Portal, 
first click the ``submit a comment'' icon, then enter NOAA-NMFS-2011-
0211 in the keyword search. Locate the document you wish to comment on 
from the resulting list and click on the ``Submit a Comment'' icon on 
the right of that line.
     Mail: Submit written comments to Rodney R. McInnis, 
Regional Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., 
Suite 4200, Long Beach, CA 90802-4213.
     Fax (562) 980-4047; Attn: Rodney R. McInnis.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are a part of the public 
record and will generally be posted for public viewing on http://www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) submitted voluntarily by the 
sender will be publicly accessible. Do not submit confidential business 
information, or otherwise sensitive or protected information. NMFS will 
accept anonymous comments (enter ``N/A'' in the required fields if you 
wish to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file 
formats only.

FOR FURTHER INFORMATION CONTACT: Craig Heberer, Sustainable Fisheries 
Division, NMFS, 760-431-9440, ext. 303.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This proposed rule is also accessible at (http://swr.nmfs.noaa.gov/
). An electronic copy of the current HMS FMP and accompanying 
appendices are available on the Pacific Fishery Management Council's 
Web site at http://www.pcouncil.org/hms/hmsfmp.html.
    The HMS FMP was developed by the Council in response to the need to 
coordinate state, Federal, and international management of HMS stocks. 
The management unit in the FMP consists of highly migratory species 
(tunas, billfish, and sharks) that occur within the West Coast 
(California, Oregon, and Washington) Exclusive Economic Zone (EEZ) and 
to a limited extent on adjacent high seas waters. NMFS, on behalf of 
the U.S. Secretary of Commerce, partially approved the HMS FMP on 
February 4, 2004 (69 FR 18444). The majority of HMS FMP implementing 
regulations became effective on April 7, 2004. Reporting and 
recordkeeping provisions became effective on February 10, 2005.
    Since being adopted in 2004, the HMS FMP has been amended twice. On 
June 7, 2007, NMFS approved Amendment 1 to the HMS FMP to incorporate 
recommended international measures to end overfishing of the Pacific 
stock of bigeye tuna, Thunnus obesus, in response to formal 
notification from NMFS that overfishing was occurring on this stock. On 
June 12, 2011, NMFS approved Amendment 2 to the HMS FMP (76 FR 56328) 
to ensure that it is consistent with revised guidelines to implement 
National Standard 1 of the MSA in order to more effectively prevent 
overfishing and rebuild overfished stocks, or stocks that may become 
overfished.
    In a letter dated July 16, 2010, the Council received a request to 
modify HMS FMP longline regulations at 50 CFR 660.712. To avoid 
interactions with sea turtles, those regulations prohibit vessels based 
on the West Coast from using longline gear to make shallow sets. 
Longline vessels that make deep sets with longline (DSLL) are limited 
to landing 10 swordfish per trip. The trip limit was implemented to 
prevent vessels departing ostensibly to fish DSLL gear targeting bigeye 
and yellowfin tuna, from switching to make shallow sets using longline 
(SSLL) that is used to target swordfish, and that might result in 
higher incidental catch rates of sea turtles. The letter to the Council 
requested that these regulations be modified to increase the trip 
limits on swordfish, in order to make them consistent with regulations 
implementing the Western Pacific Fishery Management Council's Pacific 
Pelagics Fishery Ecosystem Plan (FEP) governing DSLL fishing retention 
limits. Specifically, the letter requested that the Council modify 50 
CFR 660.712 governing the DSLL fishery by recommending removal of the 
10

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swordfish per trip limit in light of the Western Pacific Fishery 
Management Council's recommendation to do the same at their 148th 
meeting on June 28-July 1, 2010.
    The Council considered the request to modify the trip limit and 
determined that the current HMS FMP regulations, which proscribe SSLL 
fishing and set specific trip limits on swordfish catch, provide 
adequate controls on both DSLL and SSLL fishing. However, the Council 
noted that the single vessel in the DSLL fishery has 100% observer 
coverage, and that coverage reduces the likelihood of that vessel 
engaging in SSLL fishing. Additionally, the Council found that the 
deterrent effect to SSLL fishing provided by the 100% observer coverage 
makes the current 10 swordfish per trip limit unnecessary for longline 
fishermen. Moreover, the Council noted that the 10 swordfish per trip 
limit might create regulatory discards (a form of bycatch) and 
potential loss of income from the sale of swordfish harvested in excess 
of the current retention limit.
    In response to these findings, in November 2010, the Council 
recommended to NMFS that the regulations at 50 CFR 660.712 be modified. 
Specifically, the Council recommended retaining the 10 swordfish limit 
for DSLL vessels fishing with J-hooks (tuna hooks), because those types 
of hooks have higher sea turtle bycatch rates, and the trip limit acts 
as a deterrent to engaging in fishing practices that may result in sea 
turtle bycatch. The Council recommended changing the trip limits for 
vessels fishing without observers but using circle hooks, because those 
types of hooks are known to minimize the bycatch and mortality of sea 
turtles. However, for trips with a NMFS-approved observer, the Council 
recommended removing the trip limits, because the observer acts a 
sufficient deterrent to SSLL activities prohibited by the rules.
    If implemented, this proposed rule will assist vessels in the DSLL 
fishery by reducing the unnecessary discard of swordfish (regulatory 
``bycatch'' under the Magnuson Act) when a vessel employs DSLL fishing 
methods known to reduce the risk of incidentally catching sea turtles. 
It will also benefit the DSLL vessels by allowing them to land a 
greater number of swordfish than allowed under the current regulations, 
which will result in fishermen to realizing greater profits from DSLL 
fishing trips, especially those with NMFS-approved observer coverage. 
Furthermore, by not forcing fishermen to discard so many swordfish, 
bycatch levels will be minimized as required by National Standard 9 of 
the MSA.

Classification

    NMFS has determined that the proposed rule is consistent with the 
HMS FMP and preliminarily determined that this proposed rule is 
consistent with the MSA and other applicable laws.
    An Initial Regulatory Impact Review was conducted to analyze the 
potential economic impacts and costs of this proposed rule.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Under the Regulatory Flexibility Act, the Chief Counsel for 
Regulation 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. The factual basis for that 
determination is as follows:
    The proposed rule would revise the HMS FMP to modify the current 
regulation, which allows a maximum of 10 swordfish per trip when using 
authorized DSLL gear regardless of hook type or the presence of an 
observer on any given trip. The proposed action would impose a trip 
limit of 10 swordfish when using J-hooks (tuna hooks), and 25 swordfish 
when using circle hooks. For trips carrying an observer there would be 
no retention limit in place, regardless of hook type, because the 
observer's coverage on the trip reduces the likelihood of the vessel 
engaging in fishing practices prohibited by the regulations, or that 
would result in sea turtle bycatch.
    There is currently a single longline fisherman operating in the 
DSLL fishery based out of the U.S. West Coast, and that is the only 
entity expected to be affected by this rule. The annual revenue 
generated by that single fisherman is unknown, but for the purpose of 
this analysis, that entity is considered to be a small business. 
However, the proposed action is expected to have only positive (and 
quite minor) economic impacts on the effected entity, because it would 
not change the number of permitted vessels authorized to fish or the 
manner in which the fishery is prosecuted, nor would it impose any 
additional reporting, procedural or other requirements on the affected 
entity. Indeed, the rule would allow fishermen carrying observers to 
retain and sell more swordfish than they can under the current 
regulations, but even then the numbers of swordfish caught by the DSLL 
fishery are expected to be relatively small, and the additional 
potential income de minimis relative to the economics of a fishing trip 
in this fishery. The population of north Pacific swordfish is 
considered healthy and not in an overfished condition or experiencing 
overfishing. There are no quotas or harvest guidelines in place under 
the HMS FMP for swordfish.
    Accordingly, and as a result of this analysis, an initial 
regulatory flexibility analysis is not required and none has been 
prepared.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: October 17, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 660 is 
proposed to be amended as follows:

PART 660--FISHERIES OFF THE WEST COAST STATES

    1. The authority citation for part 660 continues to read as 
follows:

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

    2. In Sec.  660.705, revise paragraphs (s) and (mm) to read as 
follows:


Sec.  660.705  Prohibitions.

* * * * *
    (s) If no observer is on the vessel and J-type fishing hooks are 
used, possess more than 10 swordfish; if no observer on the vessel and 
only circle-type fishing hooks are used, possess more than 25 swordfish 
on board a longline vessel from a fishing trip where any part of the 
trip included fishing west of 150 [deg]W. long. and north of the 
equator (0 [deg]lat.) in violation of Sec.  660.712(a)(9).
* * * * *
    (mm) Except when fishing under a western Pacific longline limited 
entry permit issued under Sec.  660.21, possess more than 10 swordfish 
on board a longline vessel from a fishing trip where any part of the 
trip included fishing on the high seas of the Pacific Ocean west of 150 
[deg]W. long. north of the equator in violation of Sec.  660.720 
(a)(3).
* * * * *
    3. In Sec.  660.712, revise paragraphs (a)(10) and (a)(11) to read 
as follows:


Sec.  660.712  Longline fishery.

    (a) * * *
    (10) If no observer on board the vessel, owners and operators of 
longline vessels registered for use of longline gear may land or posses 
no more than

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10 swordfish from a fishing trip when using any J-type fishing hooks, 
and no more than 25 swordfish from a fishing trip when using only 
circle hook-type fishing hooks.
    (11) Owners and operators of longline vessels registered for use of 
longline gear are subject to the provisions at 50 CFR part 223 
prohibiting shallow sets to target swordfish in waters beyond the U.S. 
EEZ and east of 150 [deg]W. long.
* * * * *

[FR Doc. 2011-27212 Filed 10-19-11; 8:45 am]
BILLING CODE 3510-22-P