[Federal Register Volume 77, Number 53 (Monday, March 19, 2012)]
[Rules and Regulations]
[Pages 15973-15975]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6577]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 110211137-2141-02]
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: Final rule.
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SUMMARY: NMFS issues a final rule under the Magnuson-Stevens Fishery
Conservation and Management Act (MSA) to modify retention limits for
swordfish 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 final rule implements 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 as follows: if a vessel without an
observer onboard uses any J-hooks (tuna hooks), the trip limit is 10
swordfish; if a vessel without an observer onboard uses only circle
hooks, the trip limit is 25 swordfish; if the vessel carries a NMFS-
approved observer during the entire fishing trip, there is no limit on
swordfish retained.
DATES: This final rule is effective April 18, 2012.
FOR FURTHER INFORMATION CONTACT: Craig Heberer, Sustainable Fisheries
Division, NMFS, 760-431-9440, ext. 303.
SUPPLEMENTARY INFORMATION:
Electronic Access
This final 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
[[Page 15974]]
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 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.
This final rule modifies HMS FMP longline regulations at 50 CFR
660.705 and 660.712, which prohibit U.S. vessels based on the West
Coast from using longline gear to make shallow sets (SSLL), and which
originally prohibited U.S. vessels using DSLL gear from landing more
than 10 swordfish (Xiphias gladius) per trip. The 10-swordfish trip
limit was intended to prevent vessels ostensibly fishing with DSLL gear
targeting bigeye and yellowfin tuna, from switching to SSLL gear
targeting swordfish on the same trip. The final rule increases the trip
limits on swordfish in order to make the West Coast-based DSLL fishery
consistent with recommendations by the Western Pacific Fishery
Management Council on their Pacific Pelagics Fishery Ecosystem Plan
(FEP) to similarly increase DSLL fishing retention limits for the
Hawaii-based DSLL fishery.
The final rule retains 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 final rule changes 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 final rule removes the
trip limits entirely, because the observer acts a sufficient deterrent
to engaging in SSLL fishing, which is prohibited.
The final rule assists 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 also benefits
the DSLL vessels by allowing them to land a greater number of
swordfish, which could result in fishermen realizing greater profits
from DSLL fishing trips, especially those with NMFS-approved observer
coverage. Furthermore, by not forcing fishermen to discard as many
swordfish, bycatch levels will be minimized as required by National
Standard 9 of the MSA.
NMFS received four public comments on the proposed rule, two in
support of the action and two critical of the action. The first
critical comment asserted, without providing substantive evidence, that
the fisherman regulated under these rules could be earning more than
five million dollars a year and therefore should not be considered a
small (business) entity for purposes of analysis under the Regulatory
Flexibility Act (RFA). Based on the average observed annual catches by
this vessel and the market values for that catch, it is extremely
unlikely that the regulated fisherman is realizing annual revenues
anywhere near five million dollars. NMFS has not changed its
certification or undertaken a regulatory flexibility analysis due to
this comment.
The second critical comment, submitted on behalf of the Turtle
Island Restoration Network and the Center for Biological Diversity,
recommended that NMFS disapprove the action altogether. The
recommendation was based on the commenters' perceptions of: a lack of
need for the regulation; adverse effects on federally protected sea
turtles, marine mammals and bycatch species; adverse impacts to Pacific
swordfish populations; and providing the foundation for opening the
West Coast High Seas to a surface longline fishery (i.e., shallow-set
fishery for swordfish) under the guise of regulatory consistency. The
rationale for the rule is explained above, and is not related to
opening a SSLL fishery. NMFS has analyzed the DSLL fishery (on the high
seas outside the West Coast EEZ) under the National Environmental
Policy Act (NEPA) and section 7 of the Endangered Species Act. This
final rule will result in no additional adverse impacts to the marine
environment, including sea turtles and marine mammals, or any aspect of
the human social and economic environment that was not previously
analyzed. The action is not expected to increase either the fishing
effort or manner of operations in the DSLL fishery (which is an open-
access fishery). Furthermore, the North Pacific swordfish stock is
currently healthy and not approaching an overfished or overfishing
condition.
There are no changes to the rule text from those that NMFS
originally proposed.
Classification
The Administrator of the Southwest Region, NMFS, determined that
the final rule is necessary for the conservation and management of the
U.S. West Coast Fisheries for Highly Migratory Species and that it is
consistent with the Magnuson-Stevens Fishery Conservation and
Management Act and other applicable laws.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration during the proposed rule stage that this action would
not have a significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here. A single comment was received
questioning the determination that the one vessel affected by this rule
is a ``small entity.'' As explained above, in the response to comments
under the Supplementary Section of this final rule, the commenter did
not supply any substantive evidence to support that claim, and it is
extremely unlikely that the regulated fisherman is realizing annual
revenues anywhere near five million dollars. As a result, a regulatory
flexibility analysis was not required and none was prepared.
List of Subjects in 50 CFR Part 660
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: March 14, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 660 is amended
as follows:
PART 660--FISHERIES OFF WEST COAST STATES
0
1. The authority citation for part 660 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
[[Page 15975]]
0
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).
* * * * *
0
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 is on board the vessel, owners and operators of
longline vessels registered for use of longline gear may land or
possess no more than 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. If a NMFS-approved
observer is on board the vessel for the duration of the fishing trip,
there is no limit on the amount of swordfish retained.
(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. 2012-6577 Filed 3-16-12; 8:45 am]
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