[Federal Register Volume 62, Number 230 (Monday, December 1, 1997)]
[Rules and Regulations]
[Pages 63467-63470]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31472]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 222
Docket No. 97102 1250-7275-02; 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: Final rule; temporary closure of fishery.
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SUMMARY: NMFS issues this final rule 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 that expires on
November 26, 1997. This action is necessary to avoid the likelihood
that this fishery will jeopardize the continued existence of the
northern right whale (Eubalaena glacialis), a species listed as
endangered under the Endangered Species Act (ESA), until more long-term
regulatory measures are issued.
DATES: This closure is effective from 0000 hours, local time, November
27, 1997 through 2400 hours, local time, July 31, 1998. The amendment
to 50 CFR 222.34 is effective November 27, 1997 through July 31, 1998.
ADDRESSES: Copies of the May 29, 1997, Biological Opinion (BO), the
August 29, 1997, amended BO, and an environmental assessment of this
action may be obtained 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,
[[Page 63468]]
Office of Protected Resources, (F/PR2), NMFS, 1315 East-West Highway,
Silver Spring, MD 20910, 301-713-2322; 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 agency action is not likely to jeopardize the continued
existence of a threatened or endangered species.
One right whale entanglement has been documented in Atlantic
pelagic drift gillnet gear. The potential exists for further
entanglements in this gear because the geographic distribution of right
whales, an endangered species, is close to or overlaps with that of the
Atlantic drift gillnet fishery during part of the year.
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 reasonable
and prudent alternatives for the use of drift gillnet gear that would
avoid the likelihood of jeopardy for the northern right whale.
Identification of these alternatives and a further description of the
basis for this action are provided in the notice of proposed rulemaking
(62 FR 59335, November 3, 1997).
On August 29, 1997, NMFS issued an amended BO identifying an
additional reasonable and prudent alternative which would avoid
jeopardy to the northern right whale from the Atlantic pelagic drift
gillnet fishery. That alternative is 100-percent observer coverage with
expanded time/area closures. 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 northern
right whales. NMFS is implementing the time/area closure component of
the reasonable and prudent alternative developed through this
consultation process.
NMFS, under emergency authority of the Magnuson-Stevens Act, closed
the drift gillnet fishery for swordfish in the Atlantic Ocean,
including the Gulf of Mexico and the Caribbean Sea, from December 1,
1996, through May 29, 1997 (61 FR 64486, December 5, 1996). NMFS
extended that closure until November 26, 1997 (62 FR 30775, June 5,
1997).
There is not sufficient time to implement the alternatives
identified in the BOs under the Magnuson-Stevens Act. Therefore, to
provide necessary protection to the northern right whale, NMFS is
implementing this measure under the authority of the ESA on a temporary
basis pending development and implementation of a long-term management
solution for this fishery consistent with alternatives identified in
the BOs.
This rule prohibits 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)).
A final National Environmental Protection Act document analyzing
this action has been prepared and is available to interested parties
(see ADDRESSES).
This action closes the pelagic driftnet fisheries described in this
document and is not intended to close coastal drift gillnet or other
gillnet fisheries in Mid-Atlantic or Northeast coastal waters (as
defined under 50 CFR 229.2).
Comments and Responses
NMFS received three letters of comment in response to the notice of
proposed rulemaking.
One letter voiced support for the closure, support for the finding
that the fishery may take right whales, and recognized that the closure
comports with the southern closure recommended by the Atlantic Offshore
Cetacean Take Reduction Team (AOCTRT). The second letter indicated that
certain fisheries need to be closed in certain times of the year as
part of a comprehensive effort to address the conservation needs of the
northern right whale, and suggested that this action helped meet that
need. The third letter voiced concerns about the validity and
justification for the closure and recommended, for a variety of
reasons, that the closure not be implemented. Specific comments and
NMFS responses to them follow.
Comment: One letter noted that the swordfish stock is weakened, and
urged NMFS to assess the impact of condensing the drift gillnet fishery
into one season. In addition, the letter cautioned NMFS about the
increase in longline fishing (as a consequence of fishers departing the
drift gillnet fishery) and the potential environmental consequences
(e.g., increased bycatch) of such a shift.
Response: NMFS has considered the impact of drift gillnetters
converting to longline gear stated in the draft EA for the AOCTRP. NMFS
has concluded that there will be negligible impact from the possible
conversion of 15 drift gillnetters on the swordfish stock, while
catches of marine mammals will decrease.
Comment: Two letters noted that NMFS has not yet implemented an
AOCTRP and encouraged NMFS to do so in order to implement effective
management of this and other fisheries in accordance with that plan.
Response: NMFS regrets that an AOCTRP has yet to be implemented.
However, the complexity of the AOCTRT's draft plan, and the costs to
the government to implement the draft plan, changes in stock
assessments, concerns about impacts on right whales and other
considerations have resulted in delays. NMFS has prepared a draft
environmental assessment on the implementation of a AOCTRP, and an
announcement of availability of the assessment for public comment was
issued by NMFS on November 4, 1997 (FR 59657).
Comment: One letter indicated that due to NMFS' inability to
implement the recommendations of the AOCTRT in a timely manner, further
closure of the fishery is not warranted.
Response: This closure is necessary to adequately protect northern
right whales. Closure of the fishery described in this rule is based on
a consultation under section 7(a) of the ESA, not on requirements of
the Marine Mammal Protection Act, or the broader marine mammal concerns
to be addressed in the AOCTRP. The closure is implementing a reasonable
and prudent alternative identified in a BO that resulted from that
consultation.
Comment: One letter reiterated previous comments on a AOCTRP, in
which the commenter recommended restricting fishing activities on
Jeffrey's Ledge and the Great South Channel to reduce the possibility
of right whale entanglement.
Response: As noted above, NMFS is working to implement the AOCTRP,
and these and other comments are being considered in that process.
Comment: One letter stated that the conclusions of the BO issued on
August 29, 1997, are flawed because the risks of a single, additional
winter fishing
[[Page 63469]]
season are not great, and, therefore, the proposed rule is not
justified. Also, because the winter fishery involves only a single
vessel, the impacts of allowing this vessel to fish will likely have
minimal biological impacts.
Response: NMFS cannot predict how many vessels might participate in
the winter fishery. As few as one vessel and as many as ten vessels
have fished during the winter fishery although in recent years between
one and three vessels have participated. The BO considered the
potential for participation in the winter fishery in terms of the
anticipated quota which is more directly related to the total number of
sets than the number of vessels. Although this action is expected to
affect a small number of vessels, perhaps only one, the fishery is such
that each vessel is capable of putting out 1.5 miles (2.4 km) of net
per set and, depending upon when the quota is reached, has the
potential for up to an estimated 50 sets. Thus, NMFS believes that the
possibility of right whale entanglement exists even in a small fishery.
Comment: One letter noted that the closure is not necessary
because, in more than 25 years of operation by drift gillnet boats in
the Mid-Atlantic swordfish fishery, there has never been a documented
right whale encounter in the winter fishery.
Response: While no known right whale entanglements have occurred in
the Mid-Atlantic portion of the fishery during the winter months for
the 16 years for which NMFS has records for the operation of this
fishery, one right whale is known to have been entangled in the fishery
in July 1993. This indicates that such events do occur with this gear.
Also, the timing and the area of observed fishing effort in the Mid-
Atlantic during the winter occurs in or near areas of right whale
aggregation and in their migration routes. Therefore, the risk
associated with fishing in waters off the Mid-Atlantic is higher than
fishing elsewhere due to its proximity to the right whale migration
route.
In addition, entanglement of large whale species other than right
whales has occurred in this fishery. This evidence suggests that there
is a risk of interaction with this gear type whenever the distribution
of right whales occurs in close proximity to fishing operations.
Photo-identification records indicate that 57 percent of all living
right whales bear scars from encounters with fishing gear. It is
possible that entanglements of right whales and other large whale
species had occurred in this fishery in the past, but went undetected.
Observer coverage for this fishery has ranged from 8 percent in 1989 to
87 percent in 1994. Observers have covered the majority of the fleet
only in 1994, 1995, and 1996. Prior to 1994, however, observer coverage
of the fishery was less than 50 percent.
Comment: One letter stated that if the closure was not in place,
the fishery would open in late November, and the fishery would occur
further north where the shelf is farther from shore. At that time of
year and in that area there are no large concentrations of marine
mammals.
Response: Historically, the fishery has not opened prior to January
1. Despite the fact that survey effort is low in many areas, right
whale sightings have occurred in all months of the year in the waters
of the continental shelf off the New England coast. These include
sightings near the shelf break in October, November, and December. NMFS
has determined that the greatest potential for interactions occurs
during from November 1 through July 31, the period of this closure.
Comment: One letter underscored the economic hardship on the single
vessel owner planning to fish in the winter. Specifically, a fisherman
involved in the fishery expected the AOCTRP to be implemented; he
outfitted his longline boat for winter drift net fishing and made other
arrangements to fish in a fishery he assumed would be open. The same
fisherman invested in pingers and was interested in determining if
pingers were successful in reducing marine mammal mortality in this
fishery.
Response: NMFS regrets the economic hardship on fishermen caused by
this closure. NMFS' mission is to ensure that endangered species are
not jeopardized and some economic consequences may result from
management decisions made in pursuit of this mission. NMFS notes that
implementation of the draft AOCTRP (something the commenter strongly
supports) would likely entail restrictions to the fishery. Therefore,
the economic hardship would also have to be endured under that
scenario.
NMFS is encouraged by efforts to reduce marine mammal bycatch,
including efforts that involve the use of pingers. Pingers have shown
some success in reducing entanglement of some marine mammal species,
and NMFS is encouraged by the interest in conducting pinger experiments
in this fishery. However, the behavior of right whales indicates that
they may be less responsive to noise than some other species, and the
small sample size makes it difficult to design an experiment that would
produce statistically significant results. NMFS notes that pinger
experiments are much more likely to produce significant results with
regard to common dolphins where expected interaction are much higher.
Finally, such experimentation would be most beneficial if it had
fleet-wide participation. Data from an experiment with a small sample
(i.e., one vessel and a relatively few fishing days) are of less value
than experiments involving controls (e.g., side-by-side comparisons
with gear not equipped with pingers) and replicates. That is, fleet-
wide participation is needed to ensure samples adequate for meaningful
comparisons and statistical analyses. In this same regard, no
experiment has been designed for this fishery or its feasibility
tested. Also, pingers are expected to be used in other fisheries, and
worthwhile data are likely to come from pinger experiments in those
fisheries. The vessel owner may be able to make the pingers he
purchased available to participants in one of those fisheries.
Comment: The company owning the single active vessel was not
notified of the possibility of the closure.
Response: NMFS provided notice of the conclusions of the BOs and
provided notice of NMFS' intention to close the fishery by publication
of the proposed rule. The commenter, the fishing community, and the
general public were thereby notified that NMFS is developing a long-
range management solution for the fishery.
Comment: The fishing community was not notified that two fishing
seasons were combined into one by NMFS.
Response: In a final rule published in the Federal Register on
October 24, 1997 (62 FR 55361), establishing regulations on annual
quotas for the Atlantic swordfish fishery, NMFS indicated that ``[o]n
August 29, 1997, an amendment to the BO was issued, which identified a
new reasonable and prudent alternative including time/area closures and
100-percent observer coverage. Pending implementation of a modification
to the emergency closure, if such is warranted by the preferred option
when identified, NMFS has taken action in this final rule to establish
a single season quota for the driftnet swordfish fishery.''
Changes From the Proposed Rule
Based on comments received, there were no substantive changes to
the proposed rule. However, the regulatory text of the proposed rule
contained an error. While the preamble to the proposed rule clearly
stated that the closure would be effective on November
[[Page 63470]]
27, 1997, the regulatory text stated that the effective date of the
closure would be November 1, 1997. The closure is in effect starting
November 27, 1997. This change is reflected in the regulatory text of
the final rule.
Classification
This final rule is necessary to protect the northern right whale in
accordance with the requirements of the ESA.
NMFS prepared an EA for this final rule with a finding of no
significant impact on the human environment. The Assistant General
Counsel for Legislation and Regulation of the Department of Commerce
certified to the Chief Counsel for the Advocacy of the Small Business
Administration that this rule will not have a significant economic
impact on a substantial number of small entities. No comments were
received that changed the basis for the original certification. As a
result, no Regulatory Flexibility Analysis has been prepared.
NMFS has determined that this rule will 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 was submitted for review by
the responsible agencies under section 307 of the Coastal Zone
Management Act.
As noted above, this rule implements an alternative identified in a
BO, and is necessary to avoid jeopardy to the northern right whale.
Therefore, failure to implement the closure identified in this action
expeditiously would be contrary to the public's interest. Also as noted
above, 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. Thus,
this portion of the fishery has not been active since that time. This
action 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
action. In addition, the fishery for large coastal sharks was closed on
July 21, 1997, through December 31, 1997, because that fishery 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
directed gillnet fishery for tunas in the winter and early summer. NMFS
will rapidly communicate the dates of this closure to fishing interests
through the FAX network and NOAA weather radio. Accordingly, the
Assistant Administrator for Fisheries finds good cause, under 5 U.S.C.
553(d)(3), to waive the 30-day delay in the effective date normally
required by section 553(d) of the Administrative Procedures Act.
This rule does not contain policies with federalism implications to
warrant preparation of a federalism assessment under Executive Order
12612. In addition, this rule does not contain new collection-of-
information requirements subject to the Paperwork Reduction Act.
This final rule has been determined to be not significant for
purposes of E.O. 12866.
List of Subjects in 50 CFR Part 222
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
Transportation.
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
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; subpart D, Sec. 222.32 also
issued under 16 U.S.C. et seq.
2. In subpart D, a new Sec. 222.34 is added to read as follows:
Sec. 222.34 Restrictions on taking right whales incidental to fishery
operations.
From November 27, 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. 97-31472 Filed 11-25-97; 4:32 pm]
BILLING CODE 3510-22-F
