[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 [email protected]; or Buck Sutter at 727-
570-5447, fax 727-570-5364, e-mail [email protected].

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