[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]


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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.

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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