[Federal Register Volume 62, Number 38 (Wednesday, February 26, 1997)]
[Proposed Rules]
[Pages 8672-8679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4658]
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DEPARTMENT OF COMMERCE
50 CFR Part 630
[Docket No. 970206023-7023-01; I.D. 010897A]
RIN 0648-AE09
Atlantic Swordfish Fisheries; Limited Access Program
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 to implement the limited access system contained
in Amendment 1 to the Fishery Management Plan for Atlantic Swordfish
(FMP). If approved, Amendment 1 would establish a two-tiered permit
system for the Atlantic swordfish commercial fishery, set forth
eligibility criteria for these permits based on historical
participation, and limit the transferability of these permits. NMFS has
determined that the Atlantic swordfish fishery is overfished and
overcapitalized, with an excessive number of permitted vessels relative
to
[[Page 8673]]
the total allowable catch (TAC) recommended for each member state by
the International Commission for the Conservation of Atlantic Tunas
(ICCAT). NMFS is holding public hearings and requesting written
comments from the public on this proposed rule. The objective of this
amendment is to take a first and significant step to prevent further
overcapitalization.
DATES: Writen comments on this proposed rule must be received on or
before April 28, 1997.
ADDRESSES: Comments on this proposed rule should be sent to William
Hogarth, Acting Chief, Highly Migratory Species Management Division (F/
SF1), National Marine Fisheries Service, 1315 East-West Highway, Silver
Spring, MD 20910. Copies of Amendment 1, which includes an
Environmental Assessment (EA) and Regulatory Impact Review (RIR), are
available from James Chambers, Fishery Management Specialist, at the
same address. The locations and dates of public hearings on the
proposed rule have been published in the Federal Register (62 FR 1705).
Additional public hearings may be held if needed. Comments regarding
the collection-of-information requirement contained in this rule should
be sent to William Hogarth at the above address and to the Office of
Information and Regulatory Affairs, Office of Management and Budget
(OMB), Washington, D.C. 20503 (Attention: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: James Chambers or John Kelly, 301-713-
2347; fax: 301-713-1917.
SUPPLEMENTARY INFORMATION:
Background
The Atlantic swordfish fishery is managed under the FMP for
Atlantic Swordfish, developed by the South Atlantic Fishery Management
Council, and its implementing regulations published September 18, 1985,
and found at 50 CFR part 630 issued under the authority of the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act; 16 U.S.C. 1801 et seq.); and the Atlantic Tunas Convention
Act (ATCA; 16 U.S.C. 971 et seq.). Regulations issued under the
authority of ATCA carry out the recommendations of ICCAT.
The FMP included a requirement for vessel permits beginning January
1, 1986. However, to date, there have been no eligibility requirements
for obtaining a swordfish permit. Accordingly, the Atlantic swordfish
fishery has operated under open access.
The north Atlantic swordfish stock is depleted due to overfishing.
According to the latest ICCAT stock assessment, the fishable biomass
(total weight) of north Atlantic swordfish is estimated to have
declined 68 percent between 1960 and 1996, and by the beginning of
1996, was estimated to be at 58 percent of that needed to produce the
maximum sustainable yield (MSY). The average size of north Atlantic
swordfish has declined from over 266 lb (121 kg) live weight in 1963 to
90 lb (41 kg) in 1995. According to ICCAT's data, 88 percent of the
swordfish caught in 1995 by the domestic industry, and 86 percent of
those landed by the international fleets, were immature. Populations of
swordfish along the U.S. coast of the Atlantic Ocean and Gulf of Mexico
have declined such that a historical recreational fishery and
commercial harpoon fishery (dating from the 19th century) have been
virtually eliminated because the large swordfish, which these handgear
fisheries targeted, are now scarce.
Due to the overfished status of the north Atlantic swordfish stock,
current harvest levels (estimated to be about 17,000 MT per year) are
scheduled for immediate reductions. At its November 1996 meeting, ICCAT
adopted reductions in the TAC for north Atlantic swordfish to 11,300 MT
for 1997, 11,000 MT for 1998, and 10,700 MT for 1999. In 1997, the U.S.
allocation will be 29 percent of the TAC. To comply with ICCAT's
recommendations for north Atlantic swordfish, NMFS has implemented
several management measures including, on June 12, 1991 (56 FR 26934),
quotas and a minimum size limit and, on August 30, 1991 (56 FR 42982),
a notice of control date for entry into the fishery. The August 30,
1991 control date notice announced that anyone entering the fishery
after that date (the ``control date'') may not be assured of future
access to the fishery if some form of limited access were implemented
later.
Need for Limited Access
The Atlantic swordfish fishery is overcapitalized in that there are
more vessels permitted in the fishery than are necessary or desirable
to harvest the total allowable catch (TAC). At least 1,531 vessel
owners are ``current permit holders,'' but only about 300 regularly
land swordfish. The inactive, permitted vessels (about 1,200) represent
a potential for increased overcapitalization, shortened fishing
seasons, and significant economic impact if many enter the fishery.
The creation of a limited access system would be an initial step
toward achieving a more reasonable balance between the harvesting
capacity of the permitted fleet and the TAC. At a minimum, it would
prevent further increases in the number of permits in the fisheries
that target swordfish and would dramatically reduce the number of
speculative permit holders (those without significant documented
landings of Atlantic swordfish).
The objectives of this proposed rule are to (a) reduce the amount
of latent effort in the U.S. Atlantic swordfish fishery without
significantly affecting the livelihoods of those who have are
substantially dependent on swordfish fisheries, (b) reduce the size of
the incidental fishery over time, and (c) allow traditional handgear
fishers (whose permits have lapsed due to the scarcity of large fish,
which they target) to participate fully as the stock recovers. The
long-term objective of the limited access program currently under
development for the Atlantic swordfish fishery is to create a
management system to make fleet capacity commensurate with resource
productivity so as to achieve the dual goals of economic efficiency and
biological conservation. The agency's long-term objective is to rebuild
the stock to the level at which the maximum sustained yield will be
produced at a minimum, and ultimately, to the level at which the
maximum economic yield will be produced.
While limited access alone will not resolve all of the problems
associated with open access fisheries (derby fishing conditions, ``the
race for fish,'' market gluts), it would help prevent them from
becoming more severe. A limited access system would stabilize fleet
size and provide an opportunity for NMFS to collect data, conduct
studies, and work cooperatively with fishery participants and other
constituents to develop a more flexible, permanent effort control
program in the future.
Permit Categories
NMFS proposes to implement a two-tiered commercial fishing permit
system in which permits would be classified as ``directed'' or
``incidental.'' The reason for issuing two broad categories of permits
is to define and regulate the directed swordfish fishery separately
from commercial fisheries that target other species but take swordfish
as bycatch. Only persons holding a directed fishery permit would be
eligible to participate in the directed fisheries under the management
measures already established, while those holding an incidental permit
would be restricted to the bycatch fishery with more restrictive
management measures. NMFS proposes to restrict access to both the
directed
[[Page 8674]]
and incidental swordfish fisheries. Two types of directed permits would
be issued: Longline and drift gillnet permits, and handgear (harpoon,
rod and reel, and handline) permits. Only one permit would be issued to
a vessel, i.e., a vessel would be issued a directed longline/drift
gillnet, directed handgear, or incidental permit. No combination of
permits would be issued.
Eligibility Criteria
Only persons or entities that held a swordfish permit at any time
from July 1, 1994, through December 31, 1995, who have documented
landings that meet at least the directed or incidental threshold levels
of historical participation in the swordfish fishery, and who own a
swordfish-permitted vessel at the time of publication of the final rule
would receive a directed longline/drift gillnet commercial permit or an
incidental commercial permit. Separate criteria would be established
for former harpooners to be issued a directed handgear commercial
permit for use only with handgear.
Specific eligibility criteria are proposed because the majority of
existing swordfish permit holders have not participated in the fishery
(have not had significant reported landings of swordfish). If all
current swordfish permit holders were to be allowed future
participation in the commercial swordfish fishery, there would be a
potential to reach or even to exceed greatly the TAC in a short time.
For the directed longline and drift gillnet fisheries, NMFS
proposes a minimum requirement of having landed at least 18 swordfish
per year for any 2 years between January 1, 1987, and June 30, 1995
(which is equivalent to having landed sufficient swordfish each year on
average to earn $5,000 per year in gross revenue). NMFS estimates that
231 vessels would be eligible for these directed swordfish permits.
NMFS proposes to issue directed fishery handgear permits only to
those who (1) have previously been issued swordfish permits for use
primarily with harpoon gear or (2) have documented landings of
swordfish with handgear as evidenced by logbook records; official,
verifiable sales slips or receipts from registered dealers; or state
landings records. The number of vessel owners that would be eligible is
estimated to be about 40.
Under the eligibility criteria proposed for longline and drift
gillnet gear types, few (if any) former harpooners could qualify
because their landings were made before 1987 when mandatory reporting
began and because most have let their permits lapse because of the
reduced abundance of large swordfish, which they target.
For the incidental fishery, NMFS proposes a minimum landings
threshold of nine swordfish between January 1, 1987, and June 30, 1995,
and an earned income requirement of $20,000 or more than half of one's
earned income from commercial fishing or charter or headboat operations
during 1 of the last 3 years. The earned income requirement is intended
to limit the incidental fishery to bona fide commercial fishers who
target other species but catch swordfish as bycatch. NMFS estimates
that 134 vessels would be eligible for incidental swordfish permits
under the preferred alternative.
It is considered that catch histories belong to the current permit
holders rather than to vessels (i.e., if a swordfish permit holder
sells one vessel and buys another, he or she retains the history of the
vessel sold and does not acquire the history of the vessel purchased).
Thus, it is considered that persons or entities purchasing existing
swordfish vessels have not also purchased that vessel's catch history
(since the fishery is currently open access, it would be imprudent for
someone to pay money for a catch history from which he or she may never
benefit). However, several vessels were purchased after the control
date (August 30, 1991) with stipulations that the catch history of the
purchased vessel was purchased as well. Accordingly, NMFS has decided
to accept legal documentation of transfers of catch histories in the
determination of eligibility. If a vessel was sold after the control
date and its landings history was included specifically in the written
sales agreement, such landings would accrue to the purchaser (and no
longer to the seller) for purposes of qualifying for a directed or
incidental permit under the proposed limited access system.
Permit Process
NMFS would identify and notify all current permit holders of their
eligibility status for the directed or incidental swordfish fishery
after analysis based on the established eligibility criteria.
Upon receipt of this initial notification, eligible permit holders
may submit an application for a directed or incidental fishery permit.
If a permit holder is informed that he or she does not qualify for a
permit, but he or she believes that there is credible evidence to the
contrary, the permit holder may apply for a permit and provide the
appropriate documentation. NMFS would then evaluate all applications,
and any accompanying documentation, and notify the applicant of its
decision either to accept or deny the permit application.
If the permit application is denied, the applicant may appeal
within 90 days of receipt of the notice of denial. Provisional directed
or incidental fishery permits, as appropriate, would be issued, pending
the outcome of an appeal, until the final decision has been rendered.
All appeal decision letters would be mailed via certified mail. If the
appeal is denied, provisional permits would become invalid 5 days after
the receipt of the notice of denial. If the appeal is approved,
provisional permits would become invalid upon receipt of the
appropriate permit.
Only owners of permitted vessels that were permitted at any time
from July 1, 1994, through December 31, 1995, would be considered for
appeal. All appeals would need to be made in writing. To appeal, the
applicant would complete an appeal cover sheet with the name,
affiliation (if any), address, and telephone number of the applicant.
Additional pages and documentation could be attached, as necessary.
The sole ground for appeal would be that NMFS used incorrect or
incomplete landings data in the eligibility analysis. No other ground
would be considered. Valid documentation of landings covering the
eligibility period would be required for consideration of an appeal.
Documentation that would be considered in support of an appeal from
fishers who believe they qualify for a directed or incidental fishery
permit would be restricted to official NMFS logbook records that have
been submitted to NMFS prior to August 30, 1995 (60 days after the
cutoff date for eligible landings); official, verifiable sales slips or
receipts from registered dealers; and state landings records. Dealer
sales slips or receipts would have to show definitively the species and
the vessel's name or other traceable indication of the harvesting
vessel. Dealer records would have to include a sworn affidavit by the
dealer confirming the accuracy and authenticity of the records.
While photocopies would be acceptable for initial submission, NMFS
might request originals at a later date, which would be returned to the
applicant via certified mail. Any submitted materials of questionable
authenticity would be referred for investigation to NMFS' Office of
Enforcement.
NMFS would designate appeals officers who would be NOAA employees.
The appeals officers would individually review cases but would confer
regularly to ensure consistency.
[[Page 8675]]
The appeals officers would review appeals for no more than 30 days
before making a recommendation to the Director of the Office of
Sustainable Fisheries (Director). The Director would render the final
decision for the Department of Commerce. All denial letters would be
sent by certified mail with return receipt so that NMFS would know when
letters were received by permit holders.
Restrictions on Transfer of Permits
NMFS recognizes that vessels may sink or deteriorate beyond repair,
and vessel owners may have valid reasons for wishing to exit the
fishery. NMFS proposes to create a system in which directed commercial
permits would be transferable with the sale of the permitted vessel, or
to a vessel of similar harvesting capacity, or to a replacement vessel
owned or purchased by the original permittee, but not under any other
circumstances. Such transfers would be subject to upgrading
restrictions (defined in the next section). Incidental permits would
not be transferable. Directed handgear permits would be transferable,
but for use with only handgear. NMFS recognizes that the same factors
present in the directed fishery (vessel sinking or deterioration,
disability, retirement) would also be present in the incidental fishery
and that non-transferability of incidental permits would eventually
result in the elimination of the incidental fishery through attrition.
Prohibiting transferability of incidental permits would slow the growth
of fishing effort in the limited access fishery.
In years after 1997, the eligibility criteria to which initial
limited access permit holders are subject would not apply. In other
words, transferees/buyers and holders of limited access vessel permits
would not be required to meet the initial limited access eligibility
criteria (i.e., having held a swordfish permit at any time from July 1,
1994, through December 31, 1995; having met the landings thresholds;
and owning a vessel at the time of publication of the final rule).
Restrictions on Vessel Upgrading
NMFS proposes to require that any vessel to which a permit is
transferred would be defined as the ``new'' vessel and be required to
have the same or less gross registered tonnage and registered length as
the originally permitted vessel. This restriction would apply to
``replacement vessels,'' or those vessels acquired by the original
permittee to replace originally permitted vessels, and to ``new
vessels,'' or those vessels not originally permitted but to which a
permit has been transferred after the original permittee has sold the
permit. This restriction would also apply to the refurbishment of
existing permitted vessels.
Ownership Limits
No one person or entity may own or control more than 5 percent of
the permitted vessels in the directed fishery. This would prevent
significant consolidation and maintain the historically predominant
individual owner/operator character of the swordfish fishery.
Incidental Harvest Limits
Without limits on the harvest of bycatch, the potential would exist
for the incidental fishery to target and harvest significant numbers of
swordfish. This would defeat the purpose of the two-tiered commercial
permit system. For these reasons, NMFS proposes to retain the existing
harvest limit for the incidental fishery at a maximum of five swordfish
per trip for squid/mackerel/butterfish otter trawl vessels and two per
trip for all other gear types. Fishers with directed longline or drift
gillnet permits would be limited to five swordfish per trip during a
closure of the directed fishery. The current limit is 15 swordfish per
trip, which is considered excessive in view of the depleted status of
the resource. A lower bycatch limit would provide an incentive to avoid
swordfish.
Handgear Set-aside
A quota equivalent to 2 percent of the directed fishery quota would
be set-aside for holders of the directed handgear permit during each
semiannual period. This percentage would be increased by subsequent
regulation as the north Atlantic swordfish stock recovers.
Fees
The Regional Administrator may charge a fee to recover the
administrative expenses of permit issuance and appeals. The amount of
the fee would be determined, at least annually, in accordance with the
procedures of the NOAA Finance Handbook, available from the Regional
Administrator, for determining administrative costs of each special
product or service. The fee would not exceed such costs and would be
specified with each application form. The appropriate fee would be
required to accompany each application. Failure to pay the fee would
preclude issuance of the permit. Payment by a commercial instrument
later determined to be insufficiently funded would invalidate any
permit.
Classification
This proposed rule is published under authority of the Magnuson-
Stevens Act, 16 U.S.C. 1801 et seq., and ATCA, 16 U.S.C. 971 et seq.
The Assistant Administrator has preliminarily determined that the
regulations contained in this proposed rule are necessary for
management of the Atlantic swordfish fishery. NMFS prepared a draft EA
for this proposed rule with a preliminary finding of no significant
impact on the human environment. The biological opinion issued on
September 1, 1995, indicated that the level of impact from the longline
and drift gillnet fisheries for Atlantic swordfish was not likely to
jeopardize the continued existence of any threatened or endangered
species or marine mammal populations. This action to limit access is
under review to determine if any environmental impacts would alter that
opinion.
NMFS reinitiated formal consultation for all highly migratory
species commercial fisheries on September 25, 1996, under section 7 of
the Endangered Species Act. This consultation will consider new
information concerning the status of the northern right whale. NMFS has
determined that proceeding with this rule, pending completion of that
consultation, will not result in any irreversible and irretrievable
commitment of resources that would have the effect of foreclosing the
formulation or implementation of any reasonable and prudent alternative
measures. This rule would reduce the number of permits in the Atlantic
swordfish commercial fishery and freeze the harvesting capacity of the
fleet at current levels, thereby preventing further overcapitalization
and derby fishing conditions and would likely reduce interaction rates
with such protected species.
A draft RIR was prepared with a preliminary finding of no
significant economic impact. The RIR provides further discussion of the
economic effects of the proposed rule.
The Assistant General Counsel for Legislation and Regulations 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 as follows:
The purpose of this proposed rule is to rationalize current
harvesting capacity with total allowable catch and substantially
reduce latent effort without significantly
[[Page 8676]]
altering the status quo in the Atlantic swordfish fishery.
Practically all current participants of the swordfish fishery
readily fall within the definition of a small business. The proposed
rule will affect all current permit holders (1,531) in the Atlantic
swordfish fishery. However, it will not have a ``significant
economic effect'' or adversely affect a ``substantial number'' of
those engaged in the fishery. In general, a substantial number of
small entities is defined by the Department of Commerce as more than
20 percent of those engaged in the fishery.
Only about 300 permitted vessels catch at least one swordfish
each year and together they constitute the Atlantic swordfish
fishery. Few, if any, fishers who are considered to be substantially
dependent on the fishery would be excluded under the proposed
limited access regulation. All longline and drift gillnet vessel
owners who can demonstrate a history of landings at a minimum
threshold of 18 swordfish per year during the 2-year qualifying
period would be eligible for a directed permit (about 231). Only the
most recent entrants to the fishery and those without at least a
minimal record of landings over two years would be excluded.
Historical participants, particularly about 40 New England-based
harpooners who have let their permits lapse and would otherwise be
excluded from the directed fishery, could be issued a directed
handgear permit allowing them to participate in any potential
recovery of the stock.
Speculative permit holders (numbering 1,231), by definition,
have not participated in the commercial swordfish fishery at all or
have not been substantially dependent on the fishery for a period of
years. The incidental bycatch limits continue to provide for
speculative commercial fishers to land some swordfish; accordingly,
their annual gross revenues should not decrease substantially.
Incidental permits are also available to those who have participated
in the fishery over a period of years but whose landings were at
such low levels that they could not qualify for a directed fishery
permit. Incidental landing limits (two swordfish per trip) should be
comparable to their previous catch rates, thus their annual gross
revenue should also not be affected.
Therefore, redefining commercial swordfish permits as directed
and incidental as proposed will not have a significant economic
impact on a majority of those engaged in the Atlantic swordfish
fishery in terms of fishers' annual gross revenues. The substantive
changes proposed primarily affect the applicability of permitting
requirements. The need for these changes is explained in the
preamble to the proposed rule.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with the 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
(OMB) Control Number.
This proposed rule contains collections of information subject to
the PRA. Revisions are proposed to the vessel permitting process, but
these are minor and not expected to alter the estimated response time
of 20 minutes. Permit requirements have been approved by OMB under
Control Number 0648-0205. Reporting requirements remain unchanged from
those approved by OMB under Control Number 0648-0016, with an estimated
response time of 15 minutes per logbook report. The appeals procedure
constitutes a new collection-of-information requirement and it has been
submitted to OMB for approval. An appeal of a permit denial is
estimated to take 1.5 hours, including the time to gather records, make
copies, and mail documents to NMFS. Comments regarding: (1) The
accuracy of this burden estimate (including hours and cost); (2)
whether the proposed collection of information is necessary for the
proper performance of NMFS' functions, including whether the sought
information has practical utility; (3) ways to enhance the quality,
utility, and clarity of the information to be collected; (4) ways to
minimize the burden of the collection of information on respondents,
including through the use of automated collection techniques or other
forms of information; and (5) any other aspects of information
collection should be sent to OMB and NMFS (see ADDRESSES).
This action has been determined to be not significant for purposes
of E.O. 12866.
List of Subjects in 50 CFR Part 630
Fisheries, Fishing, Reporting and recordkeeping requirements,
Treaties.
Dated: February 19, 1997.
Rolland Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 630 is
proposed to be 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. 630.2, the definitions for ``Director'' and ``Handgear''
are added, in alphabetical order, and the definition of ``Recreational
fishery'' is revised to read as follows:
Sec. 630.2 Definitions.
* * * * *
Director means the Director, Office of Sustainable Fisheries F/SF,
NMFS, or a designee.
* * * * *
Handgear means harpoon, rod and reel, and handline fishing gear.
* * * * *
Recreational fishery means all activities involved in the catching
of swordfish from a vessel, having only rod and reel or handline gear
on board, intended solely for sport or pleasure with no subsequent sale
or commercial barter of any of the catch.
* * * * *
3. In Sec. 630.4, paragraphs (a), (b), the first sentence of (d),
and (e) through (g) are revised and paragraph (c)(1) is amended by
adding a new first sentence to read as follows:
Sec. 630.4 Permits and fees.
(a) Vessel permits--(1) General. (i) Except as provided by
paragraph (a)(1)(ii) of this section, a valid Federal permit issued
under this paragraph must be obtained and carried on board at all times
by the owner of the United States that fishes for, possesses, or lands
Atlantic swordfish from the North Atlantic Ocean, including the Gulf of
Mexico and Caribbean Sea, north of 5 deg. N. latitude, the management
unit; or that takes such swordfish as bycatch, whether or not retained.
(ii) The owner of a vessel that fishes for or possesses swordfish
in or from the North Atlantic Ocean, including the Gulf of Mexico and
Caribbean Sea, north of 5 deg. N latitude in the recreational fishery
is exempt from the requirement to have a permit.
(2) Limited access eligibility in 1997. NMFS will issue three types
of limited access permits for Atlantic swordfish vessels: Directed
longline and drift gillnet permits, directed handgear permits, and
incidental permits. To be eligible to obtain a vessel permit in 1997--
(i) For use with longline or drift gillnet gear in the directed
swordfish fishery, a vessel owner must have held a valid Federal
commercial swordfish permit at any time during the period July 1, 1994,
through December 31, 1995; met the landings criteria specified in
paragraph (a)(3)(i) of this section; and own a vessel with a valid
swordfish permit on February 26, 1997.
(ii) For use with handgear (harpoon, rod and reel, or handline) but
having no longline or drift gillnet gear on board, a vessel owner must
have previously been issued a swordfish permit for use primarily with
harpoon gear or have documented landings of swordfish with handgear as
evidenced by official NMFS
[[Page 8677]]
logbook records; official, verifiable sales slips or receipts from
registered dealers; and state landings records.
(iii) For use by vessels targeting species other than swordfish,
but catching limited numbers of swordfish incidentally, a vessel owner
must have earned at least $20,000 or more than half of his or her
earned income from commercial fishing or from charter or headboat
operations during 1 of the last 3 years; held a valid Federal
commercial swordfish permit during the period July 1, 1994, through
December 31, 1995; met the landings criteria specified in paragraph
(a)(3)(ii) of this section; and own a vessel with a valid swordfish
permit on Febraury 26, 1997. A statement attesting to having met the
earned income requirement must be furnished with an application for an
incidental swordfish permit.
(3) Landings Criteria. (i) Directed permits for use with longline
or drift gillnet gear will be issued only to eligible permit holders
who have documented landings of at least 18 swordfish per year for any
2 years between January 1, 1987, and June 30, 1995.
(ii) Incidental permits will be issued only to eligible permit
holders who have documented landings of nine swordfish during the
period January 1, 1987, to June 30, 1995.
(4) Eligibility in 1998 and thereafter. To be eligible for a
swordfish permit for use with longline or drift gillnet gear in years
after 1997, a vessel owner must have been issued a permit for the
directed longline or drift gillnet fishery for the preceding year, or
the vessel must be replacing a vessel that has been retired from the
directed longline or drift gillnet fishery and had been issued a permit
for the preceding year, and the vessel and owner must meet the criteria
set forth in paragraphs (b)(5) and (g). A vessel owner desiring to
apply for a directed handgear permit must meet the eligibility criteria
specified at paragraph (a)(2)(ii) of this section; handgear permits are
renewable annually. If more than one vessel owner claims eligibility to
apply for a limited access Atlantic swordfish vessel permit based on
one vessel's fishing and permit history after 1997, NMFS shall
determine who is entitled to qualify for the limited access Atlantic
swordfish vessel permit according to paragraph (g)(3) of this section.
(5) Notification of eligibility for 1997. (i) NMFS will attempt to
notify all commercial swordfish permit holders (and former permit
holders that used harpoon gear) of their eligibility for a directed or
incidental limited access Atlantic swordfish vessel permit, based on
the requirements contained in paragraph (a)(2) of this section. Upon
receipt of this initial notification, eligible permit holders may
submit an application for the appropriate permit following procedures
described in paragraph (b) of this section.
(ii) If an owner has been notified that the vessel is not eligible
for a limited access Atlantic swordfish vessel permit, and the vessel
owner can provide credible evidence that the vessel does qualify under
the pertinent criteria, the vessel owner may apply for the appropriate
permit by submitting the documentation required under paragraph (a)(8)
of this section.
(6) If, based on the documentation supplied with the application,
NMFS determines that the vessel meets the eligibility criteria, the
appropriate limited access permit will be issued.
(7) Application denial. If, based on the documentation supplied
with the application, NMFS determines that the vessel does not meet the
eligibility criteria specified in paragraphs (a)(2) and (a)(3) of this
section or the conditions specified in paragraphs (a)(5) and (e) of
this section, the limited access permit application will be denied.
Letters of denial will be sent via certified mail.
(8) Appeals. (i) Any applicant denied a limited access permit for
Atlantic swordfish vessels may appeal the denial to NMFS within 90 days
of the notice of denial. The sole ground for appeal is that NMFS erred
in its determination of eligibility on the basis of incorrect or
incomplete data. No other grounds will be considered. Valid
documentation of landings specified in paragraph (a)(3) of this section
covering the eligibility period must be provided by the applicant for
NMFS to consider an appeal. Photocopies will be acceptable for initial
submission. NMFS may request originals at a later date, which would be
returned to the applicant via certified mail. Any such appeal must be
in writing. Documentation that is of questionable authenticity will be
referred for investigation to NMFS' Office of Enforcement.
(ii) The only landings documentation that will be considered in
support of an application or appeal are official NMFS logbook records
that were submitted to NMFS prior to August 30, 1995; state landings
records; and official, verifiable sales slips or receipts from
registered dealers. Dealer sales slips and receipts must definitively
show the species landed and vessel's name or other traceable
information for the harvesting vessel and must include a sworn
affidavit by the dealer confirming the accuracy and authenticity of the
records.
(iii) The Director shall issue a provisional permit, which shall be
valid for the pendency of the appeal, to a vessel and owner for which
an appeal has been initiated. The provisional permit shall be valid
only for use with the gear appropriate to the category of permit the
appellant is seeking. Any such decision is the final administrative
action of the Department of Commerce on allowable fishing activity
pending a final decision on the appeal. The provisional permit must be
carried on board the vessel while participating in the Atlantic
swordfish fishery and is not transferable.
(iv) NMFS will appoint appeals officers who will review the written
materials for no more than 30 days before making a recommendation to
the Director.
(v) Upon receiving the findings and a recommendation, the Director
will issue a final decision on the appeal. The Director's decision is
the final administrative action of the Department of Commerce.
(vi) The Director shall send letters of approval or denial of
appeals to the vessel owners. All appeal decision letters will be
mailed via certified mail. If the appeal is denied, provisional permits
will become invalid 5 days after receipt of the notice of denial. If
the appeal is approved, provisional permits will become invalid upon
receipt of the appropriate permit.
(b) Application for a limited access vessel permit. (1) In the year
1997, an initial application for a limited access vessel permit must be
submitted and signed by the owner (in the case of a corporation, the
qualifying officer or shareholder; in the case of a partnership, the
qualifying general partner) of the vessel. The application must be
submitted to the Regional Director at least 30 days prior to the date
on which the applicant desires to have the permit made effective.
Permit application forms are available from the Regional Director. An
applicant must provide the following information:
(i) A copy of the vessel's U.S. Coast Guard certificate of
documentation or, if not documented, a copy of its state registration
certificate.
(ii) The vessel's name, official number, registered gross tonnage,
and registered length.
(iii) Name, mailing address including ZIP code, telephone number,
and social security number, and date of birth of the owner (if the
owner is a corporation/partnership, in lieu of the social security
number, provide the employer identification number, if one has been
[[Page 8678]]
assigned by the Internal Revenue Service (IRS), and, in lieu of the
date of birth, provide the date the corporation/partnership was
formed).
(iv) Information concerning vessel, gear used, fishing areas, and
fisheries vessel is used in, as requested by the Regional Director and
included on the application form.
(v) If a directed handgear permit is being sought, indication of
the year a permit was issued for use primarily with harpoon gear, or if
issued prior to 1984, a copy of the permit issued, or valid
documentation of landings of swordfish with handgear. Valid
documentation that will be considered in support of an application for
a directed handgear permit are official NMFS logbook records; official,
verifiable sales slips or receipts from registered dealers; or state
landings records.
(vi) If an incidental swordfish permit is being sought, a sworn
statement by the applicant certifying that, during 1 of the 3 calendar
years preceding the application:
(A) More than 50 percent of his or her earned income was derived
from commercial fishing, that is, sale of the catch, or from charter or
headboat operations; or
(B) His or her gross sales of fish were more than $20,000; or
(C) For a vessel owned by a corporation or partnership, the gross
sales of fish of the corporation or partnership were more than $20,000.
(vii) A sworn statement that the applicant agrees to the conditions
specified in paragraph (a)(5) of this section.
(viii) Any other information that may be necessary for the issuance
or administration of the permit, as requested by the Regional
Administrator and included on the application form.
(ix) The Regional Administrator may require the applicant to
provide documentation supporting the sworn statement under paragraph
(b)(1)(vi) of this section before a permit is issued or to substantiate
why such permit should not be revoked or otherwise sanctioned under
paragraph (i) of this section. Such required documentation may include
copies of appropriate forms and schedules from the applicant's income
tax return. Copies of income tax forms and schedules will be treated as
confidential.
(2) In years after 1997, a limited access permit holder may apply
for a limited access permit renewal, provided that the initial
information under which the permit holder qualified for a limited
access permit has not changed. Limited access vessel permits must be
renewed annually and renewal applications must be submitted to the
Regional Director at least 30 days prior to the date on which the
applicant desires to have the permit made effective. Only holders of
valid limited access permits in the preceding year are eligible for a
renewal of their limited access permits.
(3) In years after 1997, an application for permit transfer of a
directed limited access vessel permit to a new vessel and/or owner will
be authorized, subject to transfer and upgrading restrictions specified
in Sec. 630.4 (g)(1) through (g)(3) and ownership limits set forth in
Sec. 630.4 (b)(5). Incidental limited access permits are not
transferable or assignable. All other requirements and restrictions
specified in this part apply to transferred limited access permits and
permit holders.
(4) A limited access vessel permit for 1997 will not be issued
unless an application for such permit is received by NMFS on or before
November 30, 1997.
(5) No person or entity may own or control more than 5 percent of
the vessels in the limited access Atlantic swordfish directed fishery.
(c) Application for an annual dealer permit. (1) A dealer who
receives swordfish harvested or possessed by a vessel of the United
States must have an valid annual dealer permit issued under this part.*
* *
* * * * *
(d) Fees. A fee is charged for each limited access vessel permit
issued under paragraph (a) of this section, for each appeal under
paragraph (b) of this section, and for each annual dealer permit issued
under paragraph (c) of this section.
(e) Issuance--(1) Limited access vessel permits. Except as provided
in subpart D of 15 CFR part 904 and under paragraphs (a)(7) and (a)(8)
of this section, the Regional Administrator shall issue a Federal
limited access Atlantic swordfish vessel permit within 30 days of
receipt of the application unless:
(i) The applicant has failed to submit a complete application. An
application is complete when all requested forms, information,
documentation, and fees, if applicable, have been received and the
applicant has submitted all applicable reports specified at Sec. 630.5;
(ii) The application was not received by NMFS by the deadlines set
forth in paragraph (b)(4) of this section;
(iii) The applicant and applicant's vessel failed to meet all
eligibility requirements described in paragraph (a)(2) of this section;
or
(iv) The applicant has failed to meet any other application
requirements stated in this part.
(2) Dealer permits. The Regional Administrator will issue a dealer
permit at any time to an applicant if the application is complete. An
application is complete when all requested forms, information, and
documentation have been received and the applicant has submitted all
applicable reports specified at Sec. 630.5(a) or Sec. 630.5(b).
(3) Incomplete applications. Upon receipt of an incomplete
application, the Regional Administrator will notify the applicant of
the deficiency. If the applicant fails to correct the deficiency within
90 days of the date of the Regional Administrator's letter of
notification, the application will be considered abandoned.
(f) Duration. A permit remains valid for the period specified on
it, and the conditions accepted upon its issuance remain in effect for
that period, unless the vessel is retired from the swordfish fishery or
the permit is revoked, suspended, or modified pursuant to subpart D of
15 CFR part 904.
(g) Transfer. (1) Directed limited access permits are transferable
to a new vessel and/or owner or to a replacement vessel owned or
purchased by the original permittee but not under any other
circumstances. Such transfers are subject to requirements specified in
paragraph (g)(2) of this section. Incidental permits are not
transferable or assignable; incidental permits are valid only for the
vessel and owner of original issuance. A person purchasing a permitted
vessel who desires to conduct activities for which a permit is required
must apply for a permit in accordance with the provisions of paragraph
(b) of this section. The application must be accompanied by a copy of
the bill of sale.
(2) Transfer of directed limited access permits is authorized only
for new or replacement vessels not exceeding the gross registered
tonnage and registered length as the originally permitted vessel.
(3) The fishing and permit history of a vessel is presumed to be
retained by the original permit holder whenever the vessel is bought,
sold, or otherwise transferred, unless there is a written agreement,
signed by the transferor/seller and transferee/buyer, or other credible
written evidence, verifying that the transferor/seller is transferring/
selling the vessel's fishing and permit history.
* * * * *
4. In Sec. 630.7, paragraph (bb) is added to read as follows:
[[Page 8679]]
Sec. 630.7 Prohibitions.
* * * * *
(bb) Aboard a vessel for which a directed swordfish handgear permit
has been issued under Sec. 630.4, retain or possess swordfish taken
with gear other than harpoon, rod and reel, or handline and or to have
longline or drift gillnet gear on board. 5. Section 630.22 is revised
to read as follows:
Sec. 630.22 Gear Restrictions.
(a) Drift gillnet. A drift gillnet with a total length of 2.5 km or
more may not be used to fish for swordfish. A vessel using or having
aboard a drift gillnet with a total length of 2.5 km or more may not
possess a swordfish.
(b) Handgear. A vessel for which a directed swordfish handgear
permit has been issued under Sec. 630.4 may retain or possess swordfish
taken only with harpoon, rod and reel, or handline and must not have
longline or drift gillnet gear on board.
6. In Sec. 630.24, paragraph (a) is revised and paragraph
(b)(1)(iii) is added to read as follows:
Sec. 630.24 Quotas.
(a) Applicability. A swordfish harvested from the North Atlantic
swordfish stock by a vessel of the United States in other than the
recreational fishery is counted against the directed fishery gear quota
or the bycatch quota. A swordfish harvested commercially by longline,
drift gillnet, harpoon, rod and reel or handline and landed before the
effective date of a closure for that gear, done pursuant to
Sec. 630.25(a)(1), is counted against the applicable directed fishery
gear quota. After a gear closure, a swordfish landed by a vessel using
or possessing gear for which bycatch is allowed under Sec. 630.25(c) is
counted against the bycatch allocation specified in paragraph (c) of
this section. Notwithstanding the above, a swordfish harvested by a
vessel using or possessing gear other than longline, drift gillnet,
harpoon, rod and reel or handline is counted against the bycatch quota
specified in paragraph (c) of this section at all times.
(b) * * *
(1) * * *
(iii) A quota equivalent to 2 percent of the directed fishery quota
will be set-aside for holders of the directed handgear permit during
each semiannual period. Any unused portion of the set-aside quota will
be returned to the directed fishery allocation by the end of September
(the end of the handgear season) of each year.
* * * * *
7. In Sec. 630.25, the first sentence in paragraph (c)(2)(ii) is
amended by removing the numeral ``15'' and by adding the numeral ``5''
in its place, and paragraph (d) introductory text is revised to read as
follows:
Sec. 630.25 Closures and bycatch limits.
* * * * *
(d) Bycatch limits in the non-directed fishery. Aboard a vessel
using or having aboard gear other than longline, drift gillnet,
harpoon, rod and reel or handline, other than in the recreational
fishery--
* * * * *
[FR Doc. 97-4658 Filed 2-21-97; 12:08 pm]
BILLING CODE 3510-22-F
