[Federal Register Volume 62, Number 212 (Monday, November 3, 1997)]
[Proposed Rules]
[Pages 59335-59337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29022]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 222
Docket No. 971021250-7250-01; I.D. 092297E
RIN 0648-AK46
Endangered Fish or Wildlife; Special Prohibitions; North Atlantic
Right Whale Protection
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce
ACTION: Proposed rule; temporary closure of fishery.
-----------------------------------------------------------------------
SUMMARY: NMFS proposes to close the Mid-Atlantic and Northeast Coastal
segments of the Atlantic pelagic drift gillnet fishery for swordfish,
tuna, and shark through July 31, 1998. The swordfish portion of the
Atlantic pelagic drift gillnet fishery has been closed since December
5, 1996, under an emergency Magnuson-Stevens Fishery Conservation and
Management Act closure which expires on November 26, 1997. This action
is necessary to avoid jeopardy to the continued existence of the
northern right whale (Eubalaena glacialis), a species listed as
endangered under the Endangered Species Act (ESA). The purpose of this
action is to continue the existing closure of the swordfish portion of
the Atlantic pelagic drift gillnet fishery and to close the tuna and
shark portions of the Atlantic pelagic drift gillnet fishery until
regulatory measures implementing one or more reasonable and prudent
alternatives necessary to avoid jeopardy to the continued existence of
the northern right whale are completed and implemented.
DATES: Written comments must be received on or before November 18,
1997.
ADDRESSES: Send comments to the Chief, Marine Mammal Division (F/PR2),
Office of Protected Resources (F/PR), NMFS, 1315 East West Highway,
Silver Spring, MD 20910-3282. Copies of the May 29, 1997, Biological
Opinion (BO), of the August 29, 1997, Amended BO, and, a draft
environmental assessment on the Atlantic Offshore Cetacean Take
Reduction Plan are available upon request from Gregory Silber, Ph.D.,
Marine Mammal Division, Office of Protected Resources, NMFS, 1315 East
West Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Gregory Silber, Ph.D. or Michael
Payne, Office of Protected Resources, (F/PR2), NMFS, 1315 East West
Highway, Silver Spring, MD 20910, 310-713-2322; or by facsimile at 301-
713-0376.
SUPPLEMENTARY INFORMATION:
The Atlantic pelagic fishery (which includes the swordfish, tuna,
and shark drift gillnet fishery) is managed by NMFS 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 (16 U.S.C. 971 et seq.). Section 7(a)(2) of the ESA (16
U.S.C. 1531 et seq.) requires an agency to ensure that any action
proposed by a Federal agency is not likely to jeopardize the continued
existence of a threatened or endangered species. Due to new information
concerning the status of the northern right whale, NMFS re-initiated
consultation on the Atlantic pelagic fishery on September 25, 1996.
One right whale entanglement has been documented by a NMFS observer
in Atlantic pelagic drift gillnet gear. The potential exists for
further entanglements in this gear because the geographic distribution
of right whales overlaps with that of the Atlantic drift gillnet
fishery during part of the year. On December 5, 1996, NMFS published an
emergency closure pursuant to the Magnuson-Stevens Act closing the
drift gillnet fishery for swordfish in the Atlantic Ocean, including
the Gulf of Mexico and Caribbean Sea, from December 1, 1996, through
May 29, 1997 (61 FR 64486). In its December 5, 1996, notice, NMFS
announced that it had reinitiated consultation under the ESA for the
entire Atlantic pelagic fishery (which includes the drift gillnet
fishery for swordfish, tuna, and shark).
On May 29, 1997, NMFS issued a BO which concluded that continued
operation of the swordfish, tuna, and shark drift gillnet portions of
the Atlantic pelagic fishery was likely to jeopardize the continued
existence of the northern right whale. This BO identified two
reasonable and prudent alternatives for the use of drift gillnet gear
that would avoid the likelihood of jeopardy for the northern right
whale. The first alternative is to prohibit the use of drift gillnet
gear for the taking of pelagic swordfish, tuna, and shark. The second
alternative is to allow the restricted use of drift gillnet gear. Under
this alternative, drift gillnet fishing for swordfish, tuna, and shark
would take place under a limited entry system with 100 percent observer
coverage, time/area closures, and elimination of the derby nature of
the fishery during certain times of the year.
On June 5, 1997, pursuant to the Magnuson-Stevens Act, NMFS
extended the closure of the swordfish portion of fishery until November
26, 1997, or until a preferred option to avoid the likelihood of
jeopardy was identified and implemented (62 FR 30775).
Based on new information on the implementation of additional right
whale management measures, consultation under section 7 of the ESA was
again re-initiated on August 12, 1997. On August 29, 1997, NMFS issued
an amended BO identifying a third reasonable and prudent alternative to
avoid jeopardy to the northern right whale from the Atlantic pelagic
drift gillnet fishery. The reasonable and prudent alternative would be
100 percent observer coverage with expanded time/area closures. The BO
concluded that the distribution of right whales overlaps with that of
the swordfish component of the drift gillnet fishery from November 1
until July 31 and that closure of the fishery during that period is
likely to avoid jeopardy for northern right whales.
NMFS is now proposing to implement the time/area closure component
of the reasonable and prudent alternatives developed through this
consultation process. However, there is not sufficient time to
implement the alternatives identified in the BO under the Magnuson-
Stevens Act. As a result, NMFS is proposing to implement this measure
under the ESA on an temporary basis pending full implementation of the
reasonable and prudent alternative(s). This proposed temporary closure
would provide necessary protections to the northern right whale while
NMFS develops a long term fishery management solution in conformance
with alternatives identified in the BOs for this fishery.
The BO issued on August 29, 1997, requires that the driftnet
fishery for swordfish, shark, and tunas be prohibited from operating
from November 1 to July 31 to avoid jeopardy to the continued existence
of northern right whales. Although the final rule version of this
document will not become effective until late November, NMFS has
determined that the risk to right whales from drift gillnet gear from
November 1, 1997, to the effective date of this rule is remote for the
following
[[Page 59336]]
reasons: (1) Swordfish - This proposed action would extend the existing
closure for swordfish, which expires on November 26, 1997, through July
31, 1998, thereby avoiding jeopardy for the swordfish component of the
drift gillnet fishery until the expiration date of the closure; and (2)
Tuna and sharks - Although the tuna and shark portions of the pelagic
drift gillnet fishery were not closed by the December 5, 1996,
emergency closure and subsequent extension, no directed drift gillnet
operations historically exist to target these species in pelagic waters
during the month of November, as evidenced by the lack of landings
records and the lack of requests for observer coverage required under
the Marine Mammal Protection Act (MMPA). In addition, the directed
fishery for large coastal sharks was closed on July 21, 1997, through
December 31, 1997, because that fishery has reached its allowable quota
(62 FR 32942, July 21, 1997). The directed gillnet fishery for small
coastal sharks during fall and winter generally occurs south of Cape
Hatteras along the Georgia and Florida coastal areas south to Sebastian
Inlet, Florida (approximately 27 deg.51' N latitude). This is a known
high-use area for northern right whales during winter and, as such, was
the focus of the Atlantic Large Whale Take Reduction Team established
under section 118 of the MMPA. The interim final rule implementing the
Atlantic Large Whale Take Reduction Plan (62 FR 39157, July 22, 1997)
closes the area to drift gillnet fishing from 32 deg.00' N latitude
(approximately Savannah, Georgia) south to 27 deg.51' N latitude from
November 1 to March 31.
This proposed rule would prohibit vessels operating in the North
Atlantic off the coast of the United States in waters south and east of
the 100 fathom contour from having on board, fishing with, or otherwise
possessing or controlling drift gillnet gear from November 1, 1997,
through July 31, 1998, except as authorized under 50 CFR 229.32
(regulations implementing the Atlantic Large Whale Take Reduction Plan
that allow for restricted drift gillnet operations targeting sharks in
the Southeast United States, 62 FR 39157, July 22, 1997).
NMFS has prepared a draft environmental assessment on the Atlantic
Offshore Cetacean Take Reduction Plan that considers several
alternatives for reducing the bycatch of marine mammals in the Mid-
Atlantic and Northeast segments of the pelagic drift gillnet and
longline fisheries for swordfish, tuna, and shark (see ADDRESSES).
Although this draft environmental assessment does not indicate a
preferred alternative for operation of these fisheries, it does include
an analysis of the impact of the proposed action to close the Mid-
Atlantic and Northeast segments of the pelagic drift gillnet fisheries
for swordfish, tuna, and shark. A final National Environmental
Protection Act document analyzing the proposed action will be available
to the public upon publication of a final rule.
Section 11(f) of the ESA provides the Secretary of Commerce with
broad rulemaking authority to enforce the ESA. Because the affected
fisheries may harm, harass, or otherwise ``take'' a right whale, this
rule is proposed to prevent this fishery from jeopardizing the
continued existence of the northern right whale and to prevent ``take''
of right whales prohibited by section 9(a) of the ESA. NMFS will
undertake additional management actions necessary to ensure that
conduct of the Atlantic pelagic drift gillnet fishery will not
jeopardize the continued existence of the northern right whale before
the expiration of this rule.
This action is not intended to place restrictions on coastal drift
gillnet or other gillnet fisheries in Mid-Atlantic or Northeast coastal
waters (as defined under 50 CFR 229.2), other than those placed on the
pelagic driftnet fisheries described in this document. These coastal
fisheries are believed to include fisheries targeting bonito, little
tunny, croaker, weakfish, shad, herring, striped bass, or bluefish.
NMFS requests comments on how to better define or characterize such
fisheries so that this and future rules regarding gear restrictions can
be specifically targeted to the fisheries for which management actions
are intended. Specifically, comments are requested on how best to
characterize the boundaries between coastal and pelagic fisheries and/
or the specific gear types (e.g., mesh size, net length) used in the
different fisheries. This request was previously made in a proposed
rule to define fisheries under the Marine Mammal Protection Act list of
fisheries (62 FR 28657, May 27, 1997). No comments have been received
to date with respect to this request.
Classification
This rule is necessary to enforce the requirements of the ESA.
NMFS has determined that this rule is not significant for purposes
of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce has certified to the Chief Counsel for Advocacy
of the Small Business Administration that this rule, if adopted, will
not have a significant economic impact on a substantial number of small
entities as follows:
I certify that the attached proposed rule to close the Mid-
Atlantic and Northeast Coastal segments of the Atlantic drift
gillnet fisheries for swordfish, tuna, and shark through July 31,
1998, issued under authority of the Endangered Species Act, will not
have a significant economic impact on a substantial number of small
entities, as defined under the Regulatory Flexibility Act. Between
1987 and 1995, over 1,500 vessels were permitted to participate in
the swordfish fishery. Twelve to fifteen of these vessels use drift
gillnet gear primarily to target swordfish. All are also permitted
to take tuna and shark. All of the vessels fishing for swordfish,
tuna, and shark with drift gillnet gear are small entities.
Because NMFS has traditionally apportioned swordfish quota into
two semi-annual seasons, fishing effort in the swordfish fishery has
traditionally consisted of a summer and a winter season. However,
two Magnuson-Stevens Fishery Conservation and Management Act
closures have closed the swordfish component of this fishery since
December 1996. For 1998, consistent with the BO on the Atlantic
pelagic fishery, the proposed rule would prohibit the use of drift
gillnet gear during the winter season, and delay the summer season
until after July 31, 1998. NMFS has also taken a separate action to
apportion the 1998 swordfish quota into one fishing period. Thus
participants in this fishery would have the opportunity to fish for
the full annual quota during the period of non-closure.
Most pelagic drift gillnet fishing occurs during the summer when
swordfish are concentrated off the northeastern U.S. Based on
logbooks submitted to NMFS, typically only one vessel has
participated in the winter drift gillnet swordfish fishery.
Therefore, restricting fishing effort to the summer season should
not impact a substantial number of small entities and should result
in only minimal economic impacts. Prior to 1991, when drift
gillnetters were not restricted by a semi-annual quota, fishing
occurred as late as the fourth quarter (October, November, and
December). Therefore, delaying the start date of the fishery until
August 1, 1998, is not expected to significantly impact fishing
effort or landings.
This proposed rule would have no impact on drift gillnetters
directly fishing for sharks in the Southeast because participants in
the directed shark fishery are covered by regulations implementing the
Atlantic Large Whale Take Reduction Plan and would not be further
restricted by this proposed rule. In addition, the fishery for large
coastal sharks was closed on July 21, 1997, through December 31, 1997,
because that fishery has reached its allowable quota (62 FR 32942, July
21, 1997). Based on recent records and the lack of requests for
observer coverage as required under the Marine Mammal Protection Act,
there is no history of a
[[Page 59337]]
directed drift gillnet fishery for tunas in the winter and early
summer.
Accordingly, this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
As a result, no Initial Regulatory Flexibility Analysis has been
prepared.
This proposed rule would be implemented in a manner that is
consistent, to the maximum extent practicable, with the coastal zone
management programs of the Atlantic and Gulf of Mexico states that have
approved programs. This determination has been submitted for review by
the responsible agencies under section 307 of the Coastal Zone
Management Act.
This rule does not contain policies with federalism implications to
warrant preparation of a federalism assessment under Executive Order
12612. This proposed rule does not contain new collection-of-
information requirements subject to the Paperwork Reduction Act.
List of Subjects in 50 CFR Part 222
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
Transportation.
Dated: October 28, 1997.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set forth in the preamble, 50 CFR part 222 is
proposed to be amended as follows:
PART 222--ENDANGERED FISH OR WILDLIFE
1. The authority citation for part 222 continues to read as
follows:
Authority: 16 U.S.C. 1531-1543.
2. In subpart D, a new Sec. 222.34 is proposed to be added to read
as follows:
Subpart D--Special Prohibitions
Sec. 222.34 Restrictions on taking right whales incidental to fishery
operations.
During the period from November 1, 1997, through July 31, 1998, it
is unlawful for any person or vessel subject to the jurisdiction of the
United States to have on board a vessel, to fish with, or otherwise to
posses or control drift gillnet gear, as defined in 50 CFR 229.2, in
the North Atlantic Ocean in waters off the coast of the eastern United
States south and east of the 100 fathom contour except that such gear
may be used in southeast waters, as defined under 50 CFR 229.2, if that
gear is used in compliance with the requirements of 50 CFR 229.32(f).
[FR Doc. 97-29022 Filed 10-29-97; 1:14 pm]
BILLING CODE 3510-22-F
