[Federal Register Volume 64, Number 240 (Wednesday, December 15, 1999)]
[Proposed Rules]
[Pages 69982-69987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32588]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No. 99120-332-9332-01; I.D. 110499B]
RIN 0648-AM79
Atlantic Highly Migratory Species; Pelagic Longline Management
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 prohibit pelagic longline fishing at certain
times and in certain areas within the Exclusive Economic Zone of the
Atlantic Ocean off the coast of the Southeastern United States and in
the Gulf of Mexico. This proposed rule is necessary to address pelagic
longline bycatch and incidental catch of overfished and protected
species. The intent of the proposed action is to reduce that bycatch
and incidental catch by pelagic longline fishermen who target highly
migratory species (HMS).
DATES: Comments must be received at the appropriate address or fax
number (see ADDRESSES) no later than 5:00 p.m., eastern standard time,
on February 11, 2000. Public hearings on this proposed rule will be
held in January and February, 2000. Times for the public hearings will
be specified in a separate document in the Federal Register to be
published at a later date.
ADDRESSES: Written comments on the proposed rule should be submitted to
Rebecca Lent, Chief, HMS Division (SF/1), Office of Sustainable
Fisheries, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
Comments also may be sent via facsimile (fax) to 301-713-1917. Comments
will not be accepted if submitted via e-mail or Internet. For copies of
the draft Technical Memorandum and Supplemental Environmental Impact
Statement/Regulatory Impact Review/Initial Regulatory Flexibility
Analysis (DSEIS/RIR/IRFA), contact Jill Stevenson at 301-713-2347 or
write to Rebecca Lent.
FOR FURTHER INFORMATION CONTACT: Jill Stevenson at 301-713-2347, fax
301-713-1917, e-mail jill.stevenson@noaa.gov; or Buck Sutter at 727-
570-5447, fax 727-570-5364, e-mail buck.sutter@noaa.gov.
SUPPLEMENTARY INFORMATION: The Atlantic swordfish and tuna fisheries
are managed under the authority of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic
Tunas Convention Act (ATCA). The Fishery Management Plan for Atlantic
Tunas, Swordfish, and Sharks (HMS FMP) is implemented by regulations at
50 CFR part 635. The Atlantic pelagic longline fishery is also subject
to the requirements of the Endangered Species Act (ESA), the Marine
Mammal Protection Act (MMPA), and the International Plan of Action for
Reducing the Incidental Catch of Seabirds in Longline Fisheries because
of documented interactions with sea turtles, marine mammals, and sea
birds.
Pelagic Longline Fishery
Pelagic longline gear is the dominant commercial fishing gear used
by U.S. fishermen in the Atlantic Ocean to target highly migratory
species. The gear consists of a mainline, often many miles in length,
suspended in the water column by floats and from which baited hooks are
attached on leaders (gangions). Though not completely selective,
longline gear can be modified (e.g., gear configuration, hook depth,
timing of sets) to target preferentially yellowfin tuna, bigeye tuna,
or swordfish.
Observer data and vessel logbooks indicate that pelagic longline
fishing for Atlantic swordfish and tunas results in catch of non-target
finfish species (including bluefin tuna, billfish, and undersized
swordfish) and protected species, including endangered sea turtles.
Also, this fishing gear incidentally hooks marine mammals and sea birds
during tuna and swordfish operations. The bycatch of animals that are
hooked but not retained due to economic or regulatory factors
contributes to overall fishing mortality. Such bycatch mortality may
significantly impair rebuilding of overfished finfish stocks or the
recovery of protected species.
Bycatch Reduction Strategy
Atlantic blue marlin, white marlin, sailfish, bluefin tuna, and
swordfish are considered overfished. In the HMS FMP and Amendment 1 to
the Atlantic Billfish FMP (Billfish Amendment), NMFS adopted a strategy
for rebuilding these stocks through international cooperation at the
International Commission for the Conservation of Atlantic Tunas
(ICCAT). This strategy primarily involves reducing fishing mortality
through the negotiation of country-specific catch quotas according to
rebuilding schedules. However, the
[[Page 69983]]
contribution of bycatch to total fishing mortality must be considered
in the HMS fisheries, and in fact, ICCAT catch quotas for some species
require that countries account for dead discards. The swordfish
rebuilding plan that was adopted by ICCAT at its 1999 meeting provides
added incentive for the United States to reduce swordfish discards.
Additionally, Magnuson-Stevens Act national standard 9 for fishery
management plans requires U.S. action to minimize bycatch and bycatch
mortality to the extent practicable.
In the draft HMS FMP and proposed regulations (64 FR 3154, January
20, 1999), NMFS proposed a time-area closure during July-September in
the Florida Straits to reduce the bycatch of undersized swordfish by
pelagic longline fishermen. The Florida Straits area was proposed for
closure primarily due to high discard rates of undersized swordfish,
though some reductions in billfish mortality were also anticipated. The
proposed Florida Straits closure was rejected in the Final HMS FMP
because NMFS concurred with public comments that indicated that the
area proposed was too small to be effective at reducing bycatch and
incidental catch of all species of concern and because NMFS agreed that
a more comprehensive assessment of the bycatch problem was warranted.
Commercial and recreational fishermen and representatives of
environmental groups expressed concerns that fishing effort would be
displaced into adjacent ocean areas where bycatch rates of certain
species were likely to be similar to, or higher than, those rates in
the proposed closed area. NMFS agreed that further analysis of the
effects of reallocation of effort was needed.
NMFS indicated in the final HMS FMP and Billfish Amendment that a
more comprehensive approach to time-area closures would be undertaken
after further analysis of the data and consultation with the HMS and
Billfish Advisory Panels (APs). NMFS held a combined meeting of the HMS
and Billfish APs on June 10-11, 1999, to discuss possible alternatives
for a proposed rule under the framework provisions of the HMS FMP. At
the AP meeting, presentations were provided by members of the APs, or
their representatives, and by the HMS Division on various time-area
strategies.
The AP members were generally supportive of the time-area
management strategy, and asked NMFS at the conclusion of the meeting to
develop a written document outlining all analytical methods and results
of the time-area evaluation. The APs also provided several comments on
temporal and/or spatial components that NMFS should consider further in
its analyses. The AP's comments and suggestions were included in the
development of a draft Technical Memorandum, which was made available
to the public on November 2, 1999 (64 FR 59162).
Legal Challenge to FMPs
After issuance of the final regulations to implement the HMS FMP
and Billfish FMP Amendment, the National Coalition for Marine
Conservation and several other groups filed suit in U.S. District Court
for the District of Columbia challenging the bycatch and rebuilding
provisions. Plaintiffs asked the Court to enter a declaratory judgment
that NMFS violated the Magnuson-Stevens Act and the APA and to ``order
the defendants, as expeditiously as possible and by a date certain, (1)
to evaluate adequately the practicability of conservation and
management measures that could minimize highly migratory species
bycatch; (2) to require practicable conservation and management
measures that minimize highly migratory species bycatch; (3) to
establish an adequate bycatch reporting methodology; and (4) to set
forth conservation and management measures to rebuild the blue and
white marlin fisheries.'' In a negotiated stay of the proceedings of
the suit, NMFS committed to publishing a proposed rule on or by
December 15, 1999, to address bycatch of billfish and undersized
swordfish.
Marine Mammal Protection Act (MMPA)
Under procedures established by the MMPA, the Atlantic pelagic
longline fishery has been listed as a Category I fishery due to the
frequency of incidental mortality and serious injury to marine mammals
(predominantly pilot whales which are considered a strategic stock).
Based on 1991 through 1995 observer data (the most recent data
considered for this listing), pelagic longline gear hooked 14 different
species of marine mammals.
In 1994, the MMPA was reauthorized, establishing the Take Reduction
Team framework. The Atlantic Offshore Cetacean Take Reduction Team
(AOCTRT) was formed in May 1996 to address protected species bycatch by
the Category I Atlantic pelagic fisheries (i.e., driftnet, longline,
and pair trawl fisheries that target highly migratory species).
Observer data collected since 1991 considered by the AOCTRT indicate
that marine mammal interaction rates are high in the pelagic longline
fishery and that effort has expanded since 1985.
The take reduction plan was submitted to NMFS in November, 1996. In
accordance with section 118(f) of the MMPA, that plan contained
measures to address the bycatch of strategic stocks of marine mammals.
The consensus plan recommended a broad range of regulatory and non-
regulatory bycatch reduction measures, including, but not limited to,
gear modifications, time-area closures and educational workshops. NMFS
implemented some of these proposed measures in the HMS FMP (e.g.,
limiting the length of pelagic longlines in the Mid-Atlantic Bight,
requiring vessels to move after an interaction with a protected
species). In the final HMS FMP, NMFS noted that additional reductions
in takes of marine mammals could occur with closures of certain fishing
areas during times of high interaction rates.
Endangered Species Act (ESA)
Loggerhead sea turtles are considered threatened under the ESA, and
leatherback and Kemp's Ridley sea turtles are considered endangered.
The Atlantic pelagic longline fishery interacts with all of these
species. On April 23, 1999, NMFS concluded that the pelagic longline
fishery may adversely affect, but is not likely to jeopardize the
continued existence of any endangered or threatened species under NMFS
jurisdiction. On the approximately 5 percent of trips with at-sea
observers from 1993 through 1997, a total of 470 sea turtles was
observed caught by pelagic longline fishermen. Although most turtles
were released alive, NMFS remains concerned about serious injuries of
turtles hooked on pelagic longline gear.
NMFS has responded to requirements under the ESA by implementing
the terms and conditions of the Biological Opinion and Incidental Take
Statement for the pelagic longline fishery. NMFS selects a target of 5
percent of pelagic longline trips for observer coverage, records
information on the condition of sea turtles and marine mammals when
released on observed trips, and supports research on turtle capture
rates as they relate to hook types. NMFS continues to hold educational
workshops for pelagic longline fishermen and has distributed turtle and
marine mammal handling instructions in an attempt to increase the
survival of protected species through education on proper release
techniques.
To the extent that turtle interactions occur at higher rates in
certain fishing areas at particular times, time-area closures for
pelagic longline fishing could increase or reduce turtle takes. NMFS,
therefore, considered the
[[Page 69984]]
potential impacts of alternative closed areas on the expected rates of
turtle interactions. In addition, NMFS considered gear/fishing
modifications that might further reduce turtles takes.
Bycatch Reduction Alternatives
NMFS considered three alternative actions to reduce bycatch and/or
bycatch mortality in the Atlantic HMS pelagic longline fishery: status
quo, gear modifications that would decrease hook-ups and/or increase
survival of bycatch species, and prohibiting longline fishing in areas
of high bycatch or incidental catch rates. NMFS considered gear
modifications beyond those examined during development of the HMS FMP.
NMFS also considered a broad range of closures, both in terms of area
and time.
NMFS rejected the status quo because NMFS is required to minimize
bycatch and bycatch mortality under the Magnuson-Stevens Act to the
extent practicable. And, although NMFS, under the Endangered Species
Act and the Marine Mammal Protection Act, has been working with
fishermen to decrease interactions with endangered sea turtles and
strategic stocks of marine mammals and to increase chances of survival
for these animals when released from longline gear, NMFS has determined
that further action to reduce bycatch mortality is needed. While this
proposed rule is not intended to directly address bycatch mortality of
protected species, NMFS has carefully analyzed the alternatives to
ensure that the impacts on protected species would be minimized.
Gear Modifications
NMFS considered various gear modifications, including the
restriction on the use of live bait, modifications to hook spacing on
the mainline, a requirement to use circle hooks, and limitations on
soak time or timing/placement of gear. Although experience with these
gear modifications indicates possible reductions in bycatch and/or
bycatch mortality, data are insufficient to conclude that gear
modifications alone would adequately meet the objective of reduced
mortality for all of the species of concern. Given the increased
fishing costs and enforcement issues associated with some of these
alternatives, NMFS has rejected gear modifications at this time and
prefers to assess the effectiveness of time-area closures while
continuing to conduct and support gear research.
Effort Reduction
NMFS rejected the banning all pelagic longline fishing by U.S.
vessels because of the significant adverse economic impact on
fishermen, support services and seafood dealers, and increased costs to
consumers. Additionally, a ban on longlining might preclude full
harvest of the U.S. swordfish quota, and as such, would be inconsistent
with legal requirements that do not allow for regulations that have the
effect of decreasing an ICCAT quota or that do not provide fishermen
with a reasonable opportunity to harvest an ICCAT quota. NMFS prefers
instead to restrict pelagic longline fishing in areas where bycatch and
incidental catch rates are the highest and thus still allow for pelagic
longlining in other areas.
However, even with these proposed time-area closures to reduce
bycatch rates, NMFS may need to consider future reductions of pelagic
longline effort to meet bycatch reduction and stock rebuilding goals
for all affected species. While reductions in the pelagic longline
fleet have been achieved with the limited access program implemented by
the HMS FMP, further reductions could be achieved through attrition of
current limited access permits, landings criteria for renewal of
permits, or a vessel buy back program. NMFS has not included any of
these measures in this rulemaking. However, NMFS is aware of three
legislative proposals recently introduced in the 106th
Congress (S1911, H.R. 3331, and H.R. 3390) to reduce bycatch and
overall effort in the longline fleet. Specifically, each of these bills
appears to provide conservation benefits to highly migratory and other
fish species, to reduce negative fishing interactions between the
longline and recreational fishermen, and to reduce the number of
longline fishing vessels through a buy back program. The agency finds
these objectives laudable.
Evaluation of Closed Areas
NMFS considered a number of factors when examining time-area
closures as a means of reducing bycatch. In assessing the effects of
closures, NMFS established three objectives: (1) to maximize the
reduction in the incidental catch of billfish and of swordfish less
than 33 lb (15 kg) dressed weight; (2) to minimize the reduction in the
target catch of swordfish and other marketable species; and (3) to
ensure that the incidental catch of other species (e.g., bluefin tuna,
mammals, turtles) either remains unchanged or is reduced. It was
recognized that all three objectives might not be met to the maximum
extent and that conflicting outcomes would require some balancing of
the objectives.
NMFS analyzed a wide range of areas to evaluate the effect of
closures on bycatch rates. After consultation with the AP, NMFS focused
on combinations of Gulf of Mexico and South Atlantic Bight areas that
would most closely meet the bycatch reduction objectives. The South
Atlantic Bight was targeted because in recent years a high percentage
of the swordfish hooked in that area were undersized and were
discarded. The Gulf of Mexico area was investigated initially as an
area of high marlin bycatch. Preliminary analyses were made available
to the AP members and to the general public in the draft Technical
Memorandum (see ADDRESSES).
Based on catch and bycatch data reported in vessel logbooks, NMFS
constructed several potential closed areas of differing sizes both in
the Gulf of Mexico and in the South Atlantic Bight. The delineation of
the areas and a summary of reported catch and effort in each area are
contained in the draft SEIS (see ADDRESSES) and are not repeated here.
Assuming an area would be closed, NMFS first estimated the target catch
and bycatch that would not occur during the time of the closure based
on average catch rates reported in vessel logbooks over the period from
1995 to 1997. However, it is realistic to assume that the effort
(longline sets) normally expended in the potential closed area would be
redistributed elsewhere. Therefore, in analyzing the degree to which
various time-area closures achieve the objectives, it was necessary to
consider effort redistribution. The results of the analysis under the
``no-redistribution'' and ``redistribution of effort'' models are
described at length in the draft Technical Memorandum and Draft SEIS
(see ADDRESSES) and are not repeated here.
After analyzing the net effects on catch and bycatch, NMFS is
proposing to close a mid-sized area in South Atlantic Bight (generally
between 24 deg.00' N. lat. and 34 deg.00' N. lat. and within 76 deg.00'
W. long and 82 deg.00' W. long.) during January through December and a
mid-sized area in the Gulf of Mexico (north of 26 deg.00' N. lat. and
west of 90 deg.00' W. long.) during March through September. The use of
pelagic longline gear by U.S. commercial fishermen that target HMS
(those vessels with HMS permits) would be eliminated in approximately
99,810 square miles of ocean by the South Atlantic closure and and
96,560 square miles of ocean by the Gulf of Mexico closure. Under the
assumption of no-effort redistribution, NMFS estimates reductions of
incidental catch and bycatch as follows:
[[Page 69985]]
40 percent for swordfish discards; 22 percent for blue marlin discards;
20 percent for white marlin discards; 40 percent for sailfish discards;
60 percent for bluefin tuna discards; 4 percent for pelagic sharks
discards; 46 percent for large coastal sharks discards; and 5 percent
for sea turtles. Without shifting fishing effort that would otherwise
be applied in the closed areas, landings of target and marketable
incidental catch would be reduced, including: swordfish, 24 percent;
bigeye, albacore, yellowfin, and skipjack (BAYS) tunas, 17 percent;
dolphin, 59 percent, pelagic sharks, 12 percent; and large coastal
sharks, 37 percent.
Under one assumption of redistribution of effort for the same
closure, NMFS estimates that reductions in bycatch and incidental
catches would be 22 percent for swordfish discards and 49 percent for
bluefin tuna discards. Incidental landings of dolphin would be reduced
by 34 percent under this closure alternative, and swordfish would be
reduced by 6 percent, but landings would increase by 6 percent for
pelagic sharks landings and 9 percent for BAYS tunas. The bycatch of
sea turtles would also increase by almost 8 percent under the effort
redistribution scenario. NMFS expects that at least some fishing effort
would be shifted to open areas and, therefore, considers the
redistribution model to be the more realistic outcome.
Although a reduction of 10 percent is estimated for sailfish,
discards of other Atlantic billfish would increase if effort is
redistributed at random from the closed area: 5 percent for blue
marlin; 6 percent for white marlin. However, the random effort
redistribution model does not account for the generally smaller size of
vessels that currently fish off the southeast U.S. Atlantic coast and
it is unlikely that these vessels would be redistributed into the open
Caribbean or southwest Atlantic Ocean where blue marlin, white marlin,
and sailfish discard rates generally increase. Therefore, the impact of
effort redistribution on Atlantic billfish discards is probably
overestimated. However, NMFS will continue to assess reduced or
alternative closed areas that would more effectively decrease billfish
discard rates overall and minimize displacement of vessels into areas
where billfish discard rates are higher.
Effort redistributed to the Mid-Atlantic Bight area is likely to
encounter more mammals and turtles than if those longline sets were
made in the closed areas. Similarly, sets redistributed to the
northeast areas might encounter more sea turtles than if the sets were
made in the areas proposed for closure. However, the projected
increases in turtle takes under a random effort redistribution scenario
result from vessels affected by the closures shifting trips to the
Grand Banks, an area of high turtle takes. Movement of most of these
vessels to the Grand Banks is an unlikely scenario due to the smaller
size of the vessels with home ports in the proposed areas. These
smaller vessels are not outfitted for distant water trips and would
more likely shift effort to adjacent coastal areas where turtle takes
are less frequent. In addition, it is not certain that the limited
number of larger vessels could necessarily increase effort to a
significant degree in the Grand Banks area as the fishing season is
restricted in duration by weather and availability of swordfish.
In considering the impacts of area closures, it is recognized that
larger closed areas in the Gulf and South Atlantic could cause effort
to shift to areas with greater turtle takes (Grand Banks) and billfish
bycatch (Caribbean Sea). Conversely, smaller closed areas would not
shift as much fishing effort away from areas where bluefin tuna and
undersized swordfish interactions are problems. On balance, NMFS is
proposing a mid-size closed area to avoid the areas of highest
interactions with some species of concern while still affording
fishermen an opportunity to fish in areas that are closer to normal
operations and that do not inordinately increase takes of other species
of concern. NMFS requests comments specifically on how the boundaries
and size of the closed areas could be modified to mitigate the impacts
on turtles as well as billfish.
The time-area closures in this proposed rule differ from those in
the bills before Congress referenced above. However, different closed
areas could be considered as further analysis of current catch, bycatch
and incidental catch rates helps to pinpoint problem areas or as the
effects of gear modifications or potential vessel buyouts are
determined to result in reduced interactions. For example, the NMFS
proposal includes more of the ``Charleston Bump'' area in an attempt to
address concerns that juvenile swordfish fish move in and out of that
area associated with oceanographic conditions. Closure of an area
encompassing at least part of the ``Charleston Bump'' would enhance
bycatch reduction.
NMFS specifically requests public comment on whether the size and
boundaries of the various closed areas will accomplish the bycatch
reduction goals. Under the no-displacement model, NMFS estimates that
the proposed time-area closure would result in a decrease in gross
exvessel revenues of up to $14 million and approximately 20 percent of
the vessel operators would lose half of their gross income. Recognizing
the significant economic impacts of this proposed rule, NMFS also seeks
comments on how to mitigate those impacts, including the need for a
vessel buyout program, as suggested in the legislative proposals.
Facilitation of Enforcement
In implementing the time-area closures, NMFS has concerns about the
potential for expanded pelagic longline fishing effort despite having
limited access to the shark, swordfish, and tuna fisheries, due to
increased interest in targeting dolphin and wahoo with this gear.
Dolphin and wahoo are under the management authority of the South
Atlantic, Gulf of Mexico and Caribbean Fishery Management Councils.
Based on logbook reports indicating a limited amount of directed effort
(less than 10 percent of pelagic longline sets in 1988), targeted
pelagic longline fishing for wahoo and dolphin in the proposed closed
areas would result in similar bycatch rates of undersized swordfish,
billfish, and sea turtles. Because these vessels targeting wahoo and
dolphin might not have HMS permits, such pelagic longline effort could
lead to increased regulatory discards of tunas and legal-sized
swordfish.
NMFS, therefore, proposes that vessels issued HMS permits be
allowed to retain HMS in the closed areas only if transiting the closed
areas with an operating VMS, or if fishing in the closed areas with
gear other than pelagic longlines. This would reduce the incentive for
HMS-permitted vessels to target other species with pelagic longline
gear if incidental catch of HMS cannot be retained. NMFS has requested
that the Fishery Management Councils review this proposed rule and
assess the implications of the directed pelagic longline fishery for
dolphin and wahoo on the proposed bycatch reduction measures. The
Councils may wish to consider complementary actions to enhance the
bycatch reduction afforded by this proposed rule.
NMFS analyzed economic impacts to all swordfish limited-access
permit holders (includes all tuna and swordfish fishermen using
longline gear) who reported pelagic longline effort in 1997, regardless
of their target species. NMFS requests comments on the economic impacts
of these proposed measures on vessels that do not currently hold tuna
or swordfish limited-access permits and that may otherwise have
targeted dolphin and wahoo in the proposed closed areas.
[[Page 69986]]
Time-area closures provide NMFS with an effective tool to reduce
bycatch while still allowing fishermen to pursue HMS in other areas or
HMS and other species in these closed areas with other authorized
fishing gears. Given the high costs to NMFS of 100-percent observer
coverage, NMFS requires vessel monitoring systems (VMS) on all vessels
that have pelagic longline gear on board as of June 1, 2000. VMS will
be used to assist in enforcing closed areas. NMFS proposes that pelagic
longline vessels be allowed to transit the proposed closed areas with
HMS on board provided the VMS is operating consistent with existing
regulations at 50 CFR 635.69.
In order to effectively enforce the closed areas for vessels issued
swordfish and shark permits, NMFS must consider the impacts of pelagic
longline fishing activities in all waters, regardless of whether
conducted within or beyond the boundaries of the EEZ. In the
consolidated regulations issued to implement the HMS FMP (64 FR 29090,
May 28, 1999), NMFS established a condition of issuing a shark permit
to a qualifying vessel such that persons aboard the vessel would be
subject to Federal shark regulations regardless of where the fishing
activity occurs. Similarly, NMFS now proposes that the same condition
apply to the issuance of a swordfish permit. If this provision is
implemented, the fishing, catch and gear requirements of this part with
respect to swordfish would apply to person aboard permitted vessels
within the EEZ, landward of the EEZ, or outside the EEZ. As swordfish
limited access permits have already been issued without such condition,
NMFS solicits comment from those permit holders on the need for, and
consequences of, future attachment of this condition.
Conclusions
NMFS proposes to prohibit pelagic longline fishing in areas with
relatively higher bycatch rates because this alternative would best
address the conservation and management objectives described above.
Should future research indicate that practicable gear modifications
would reduce bycatch in a comparable manner, NMFS will consider those
gear modifications in conjunction with, or as an alternative to, time-
area closures. The preferred alternative appropriately meets the
objectives of the Magnuson-Stevens Act and has the greatest likelihood
of reducing bycatch while minimizing, to the extent pos sible, adverse
impacts on fishing revenues and costs.
NMFS notes that there are similarities between the time-area
closures for pelagic longline gear contained in this proposed rule and
those contained in legislation pending before Congress. There are also
significant differences, however, particularly in the longer closed
period for the Gulf of Mexico. NMFS recognizes that there may be a
rational basis for modifying the time-area closures proposed in this
rule in order to alleviate some biological, social, or economic impacts
for which limited information was available at the time of developing
this rule. Therefore, NMFS is specifically soliciting public comment
and scientific information on such modifications.
Classification
This proposed rule is published under the authority of the
Magnuson-Stevens Act, 16 U.S.C. 1801 et seq., and ATCA, 16 U.S.C. 971
et seq.
NMFS has concluded that this proposed rule to prohibit pelagic
longline fishing in the closed areas would have a significant economic
impact on a substantial number of small entities. Accordingly, an
initial regulatory flexibility analysis has been prepared.
The initial regulatory flexibility analysis assumes that fishermen,
during the time they would otherwise be pelagic longline fishing in the
designated areas would instead: (1) make longline sets in other areas,
(2) participate in other commercial fisheries, or (3) exit commercial
fishing. As of October 28, 1999, there were 443 directed and incidental
swordfish permit holders under the limited access system. This number
probably represents the number of active pelagic longline vessels since
most pelagic longline fishermen land swordfish along with other
species. Under the preferred alternative, each of the above scenarios
results in greater than a 5-percent decrease in gross revenues for more
than 20 percent of the affected entities, or would cause greater than 2
percent of the affected entities to be forced to cease operations.
The other alternatives considered include the status quo, gear
modifications, and a ban on pelagic longline fishing by U.S. vessels in
the Atlantic Ocean. Although the status quo and gear modification
alternatives might have lesser economic impacts on participants in the
pelagic longline fishery, those alternatives either do not reduce
bycatch to the extent that NMFS expects to be achieved by the time-area
closures or present enforcement difficulties. While a complete ban on
longline fishing would reduce bycatch to a greater extent than the
proposed time-area closures, the lost value of commercial seafood
products and the adverse impacts on fishery participants and fishing
communities would impose greater costs than the proposed action. The
RIR/IRFA provides further discussion of the economic effects of all the
alternatives considered.
The proposed action would not impose any additional reporting or
recordkeeping requirements on vessel operators or dealers. Vessel
logbooks, dealer reports, observer notification, and VMS requirements
applicable to the HMS fisheries are all currently approved by the
Office of Management and Budget under existing regulations.
NMFS reinitiated formal consultation for all Highly Migratory
Species commercial fisheries on May 12, 1998, under section 7 of the
ESA. In a Biological Opinion issued on April 23, 1999, NMFS concluded
that operation of the Atlantic pelagic longline fishery may adversely
affect, but is not likely to jeopardize, the continued existence of any
endangered or threatened species under NMFS' jurisdiction. While this
proposed rule, if implemented, would eliminate interactions between
pelagic longline fishermen and endangered sea turtles in the closed
areas, the overall effect on interaction rates will depend on
fishermen's responses to the closures in terms of shifting pelagic
longline effort or fishing for other species with other gear. NMFS is
concerned that turtle takes could increase under certain scenarios of
effort displacement and has reinitiated consultation under section 7 of
the ESA.
This proposed rule has been determined to be not significant for
purposes of E.O. 12866.
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Fishing vessels, Foreign relations,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Statistics, Treaties.
Dated: December 10, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 635, is
proposed to be amended as follows:
PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES
1. The authority citation for part 635 continues to read as
follows:
Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.
2. In Sec. 635.2, the definition of ``high-flyer'' is revised and
new definitions for ``Gulf of Mexico closed area'' and ``Southeastern
United States closed
[[Page 69987]]
area'' are added in alphabetical order to read as follows:
Sec. 635.2 Definitions.
* * * * *
Gulf of Mexico closed area means the Atlantic Ocean area shoreward
of the outer boundary of the EEZ that is both north of 26 deg.00' N.
lat. and west of 90 deg.00' W. long.
* * * * *
High-flyer means a flag, radar reflector or radio beacon
transmitter, suitable for attachment to a longline to facilitate its
location and retrieval.
* * * * *
Southeastern United States closed area means the Atlantic Ocean
area seaward of the baseline from which the territorial sea is measured
and shoreward of the outer boundary of the EEZ from a point
intersecting the coast at 34 deg.00' N. lat. near Wilmington Beach,
North Carolina and proceeding due east to connect by straight lines the
following coordinates in the order stated: 34 deg.00' N. lat.,
76 deg.00' W. long.; 31 deg.00' N. lat., 76 deg.00' W. long.;
31 deg.00' N. lat., 78 deg.00' W. long.; 28 deg.17' N. lat., 79 deg.00'
W. long.; then proceeding along the boundary of the EEZ to 24 deg.00'
N. lat., 81 deg.50' W. long.; then proceeding due north to intersect
the coast near Key West, Florida.
* * * * *
3. In Sec. 635.4, paragraph (a)(10) is added, and paragraph(e)(4)
is removed, to read as follows:
Sec. 635.4 Permits and fees.
* * * * *
(a) * * *
(10) Permit condition. An owner issued a swordfish or shark permit
pursuant to this part must agree, as a condition of such permit, that
the vessel's swordfish or shark fishing, catch and gear are subject to
the requirements of this part during the period of validity of the
permit, without regard to whether such fishing occurs in the EEZ, or
outside the EEZ, and without regard to where such swordfish or shark,
or gear are possessed, taken or landed. However, when a vessel fishes
within the waters of a state that has more restrictive regulations on
swordfish or shark fishing, persons aboard the vessel must abide by the
state's more restrictive regulations.
4. In Sec. 635.21, the first sentence of paragraph (c) is removed
and paragraph(c)(2) is revised to read as follows:
Sec. 635.21 Gear operation and deployment restrictions.
* * * * *
(c) Pelagic longlines. * * *
(2) A pelagic longline may not be fished or deployed from a vessel
issued a permit under this part in the Northeastern United States
closed area from June 1 through June 30 each calendar year, in the Gulf
of Mexico closed area from March 1 through September 30 each calendar
year, or in the Southeastern United States closed area at any time.
* * * * *
5. In Sec. 635.69 (which will be effective June 1, 2000), paragraph
(a) is amended by adding a second and third sentence to read as
follows:
Sec. 635.69 Vessel monitoring systems.
(a) Applicability. *** A vessel is considered to have pelagic
longline gear on board when a power-operated longline hauler, hi-
flyers/floats, and gangions are on board. Removal of any one of these
three elements constitutes removal of pelagic longline gear.
* * * * *
6. In Sec. 635.71, paragraph (a)(30) is added to read as follows:
Sec. 635.71 Prohibitions.
* * * * *
(30) Deploy or fish with a pelagic longline greater than the
maximum length or in any closed area as specified at Sec. 635.21(c)(1)
or (2).
[FR Doc. 99-32588 Filed 12-13-99; 11:53 am]
BILLING CODE 3510-22-F
