National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes regulations under the Magnuson-Stevens Fishery Conservation and Management Act (MSA) to modify retention limits for swordfish,
Comments must be received by November 21, 2011.
You may submit comments on this document, identified by NOAA–NMFS–2011–0211, by any of the following methods:
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Craig Heberer, Sustainable Fisheries Division, NMFS, 760–431–9440, ext. 303.
This proposed rule is also accessible at (
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,
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
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.
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.
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:
1. The authority citation for part 660 continues to read as follows:
16 U.S.C. 1801
2. In § 660.705, revise paragraphs (s) and (mm) to read as follows:
(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 °W. long. and north of the equator (0 °lat.) in violation of § 660.712(a)(9).
(mm) Except when fishing under a western Pacific longline limited entry permit issued under § 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 °W. long. north of the equator in violation of § 660.720 (a)(3).
3. In § 660.712, revise paragraphs (a)(10) and (a)(11) to read as follows:
(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
(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 °W. long.