[Federal Register Volume 65, Number 81 (Wednesday, April 26, 2000)]
[Proposed Rules]
[Pages 24440-24444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10310]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[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: Notice of availability; request for comments.

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SUMMARY: On December 15, 1999, NMFS proposed 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 (64 FR 69982). The 
intent of the proposed action is to reduce bycatch and incidental catch 
by pelagic longline fishermen who target highly migratory species (HMS) 
and is necessary to address bycatch and incidental catch of overfished 
and protected species. To address public comment received concerning 
the proposed closed areas and adjustments to these areas that would 
help mitigate the potential economic impacts, NMFS requests further 
comment on an alternative closed area in the Gulf of Mexico (the DeSoto 
Canyon area), on the Initial Regulatory Flexibility Analysis (IRFA) 
issued with the proposed rule, and on the extent to which delayed 
effectiveness of the final rule, if implemented, could mitigate short-
term economic impacts.

DATES: Comments must be received at the appropriate address or fax 
number (see ADDRESSES) no later than 5 p.m., eastern standard time, on 
May 12, 2000.

ADDRESSES: Written comments on the alternative of closing the DeSoto 
Canyon

[[Page 24441]]

area, on the economic impacts of the proposed closures and alternatives 
identified in the IRFA, and on the issue of delayed effectiveness for 
the final 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 Supplemental Environmental Impact 
Statement/Regulatory Impact Review/Initial Regulatory Flexibility 
Analysis (DSEIS/RIR/IRFA), contact Steve Meyers at 301-713-2347 or 
visit our website at www.nmfs.gov/sfa/hmspg.html.

FOR FURTHER INFORMATION CONTACT: Steve Meyers 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 and the Atlantic Tunas Convention Act. 
The Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks 
(HMS FMP) and the Fishery Management Plan for Atlantic Billfish are 
implemented by regulations at 50 CFR part 635. The Atlantic pelagic 
longline fishery is also subject to the requirements of the Endangered 
Species Act and the Marine Mammal Protection Act because of documented 
interactions with sea turtles, marine mammals, and sea birds.
    In developing a proposed rule to reduce bycatch and incidental 
catch in the pelagic longline fishery, NMFS considered alternatives of 
no action, time-area closures, gear modifications, and effort 
limitations. NMFS identified a preferred alternative of a year-round 
time-area closure off the southeast U.S. coast and a seasonal closure 
in the Gulf of Mexico. Details of the alternatives considered and the 
analyses conducted are contained in the preamble to the proposed rule 
and in the DSEIS/RIR/IRFA and are not repeated here. However, 
supplementary information is available (see ADDRESSES) that was 
prepared to describe and assess a new closed area alternative for the 
DeSoto Canyon area in the Gulf of Mexico.

DeSoto Canyon Closed Area

    During the comment period for the proposed HMS longline bycatch 
reduction rule, NMFS received many responses indicating that the DeSoto 
Canyon area located in the eastern Gulf of Mexico should be closed to 
pelagic longline effort due to the historically high occurrence of 
undersized swordfish discards in that location. NMFS had considered 
closure of a larger area of the eastern Gulf of Mexico that included 
the DeSoto Canyon based on 1995-1997 data, but did not select that 
closure as the preferred alternative. In developing the proposed rule, 
the western Gulf of Mexico closed area was preferable, in part due to a 
focus on reducing billfish bycatch rather than swordfish.
    However, in response to those comments received on DeSoto Canyon 
swordfish bycatch, NMFS examined 1993-1998 logbook data (1998 data 
became available after the proposed rule was prepared) for the area 
bounded by 84 deg.W to 90 deg.W longitude and 26 deg.N to 30 deg.N 
latitude, encompassing the DeSoto Canyon. This 86,400 square mile area 
was then subdivided into six 2 deg. X 2 deg. (latitude X longitude) 
blocks, and NMFS examined inter-annual and intra-annual changes of 
target and discard catch-per-unit-effort and, where appropriate, ratios 
of target catch to discards (e.g., swordfish retained vs. swordfish 
discarded).
    Following this procedure, two of the ocean area blocks have been 
identified for potential year-round closure on the basis of potentially 
reducing discards: 86 deg.W to 88 deg.W longitude and 28 deg.N to 
30 deg.N latitude; and 84 deg.W to 86 deg.W longitude and 26 deg.N to 
28 deg.N latitude, comprising a total of 32,860 square nautical miles. 
The following table summarizes expected changes in catch and discards 
under the ``no redistribution'' and ``full redistribution'' of effort 
models described in the DSEIS. All values in the table are expressed as 
a percentage change, by species, of the total Atlantic-wide U.S. catch. 
Negative percentage changes indicate reductions in the level of catch 
or discards, while a positive number predicts an increase in the catch/
discard of a particular species.

 
------------------------------------------------------------------------
                                     No effort        Redistribution of
  Discards and target species      redistribution        effort model
                                  model (percent)         (percent)
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White Marlin Discards.........                -1.84                 1.07
Sailfish Discards.............                -5.20                -0.75
Large Coastal Shark Discards..                -6.51                -5.42
Swordfish Kept................                -2.45                -1.69
BAYS Tunas Kept...............                -2.04                 1.35
Dolphin (Mahi) Kept...........                -3.69                -1.37
Pelagic Sharks Kept...........                -2.38                -1.82
------------------------------------------------------------------------

    NMFS seeks comments on this new alternative area that is being 
considered for closure; particularly on the ecological impacts on the 
environment and the social and economic impacts on fishermen and 
related businesses.

Initial Regulatory Flexibility Analysis (IRFA)

    In the interest of obtaining further comment on delayed 
effectiveness of the final rule as a means of mitigating short-term 
economic impacts, NMFS provides a summary of the IRFA for the original 
alternatives considered in the proposed rule and, separately below, for 
the new DeSoto Canyon area alternative.
    In the IRFA issued with the proposed rule, NMFS described a range 
of fishery management alternatives that could reduce or enhance 
survival of bycatch and incidental catch of small swordfish, billfish, 
and other overfished HMS, as well as endangered or threatened species 
taken by U.S. pelagic longline fishermen in the Atlantic Ocean. NMFS 
analyzed economic impacts on all swordfish/tuna limited-access permit 
holders who reported making pelagic longline sets in 1997. NMFS 
estimated that the proposed time-area closures would result in a 
decrease in gross ex-vessel revenues of up to $14 million and that 
approximately 20 percent of the vessel operators would lose half of 
their gross income.

Alternative Actions

    The objectives of the proposed regulatory action are to: (1) 
Maximize the reduction in finfish bycatch; (2) minimize the reduction 
in the target

[[Page 24442]]

catch of swordfish and other species; (3) ensure that the incidental 
catch of other species remains unchanged or is also reduced; and (4) 
maximize the survival rate of released animals. In developing the 
proposed rule, NMFS considered how several alternative actions could 
attain these objectives, including: No action; a prohibition on 
longline gear; four combinations of Gulf of Mexico and southeast U.S. 
coast time-area closures; four gear or fishing method modifications 
that would reduce bycatch; two gear or fishing method modifications 
that would increase survival of released animals; and fishing capacity 
reduction for the pelagic longline fleet.

Analysis of Alternatives

    NMFS made a number of assumptions in analyzing these alternatives. 
First, NMFS identified and defined the likely actions that pelagic 
longline fishermen might take if each alternative was implemented. 
These response actions were identified to determine the maximum impact 
each alternative could have on pelagic longline fishermen. Second, each 
action was analyzed as if all participants would follow that behavior. 
Although it is unlikely all vessels would undertake the same response 
to any final action, these analyses can help identify the range of 
possible impacts. Depending on actual responses, additional impacts, 
either negative or positive, might occur.
    NMFS considers all pelagic longline permit holders to be small 
entities under the meaning of the Regulatory Flexibility Act. In May, 
1999, NMFS began the process of issuing limited access permits to 
qualifying fishermen for participation in the Atlantic swordfish and 
shark fisheries, and the pelagic longline sector of the Atlantic tuna 
fishery. As of October 28, 1999, 443 fishermen had received either a 
directed or incidental swordfish limited access permit, a shark limited 
access permit, and a tuna longline permit. Additional applications and 
appeals may increase the number of permit holders to a small extent. 
Thus, the number of small entities directly affected by this regulation 
consists of at least 443 vessel owners.
    Other sectors of the industry would be affected by this regulation, 
including dealers, processors, bait houses, and hook manufacturers. 
NMFS has limited information on the number of small businesses which 
might be indirectly affected by the regulation. However, using the 
weigh-out slips submitted by fishermen reporting in the pelagic 
longline logbook, NMFS estimates that 131 dealers received fish in 1997 
from the 443 fishermen who qualify for limited access.
    The evidence collected by NMFS and used in these analyses indicates 
that the majority of pelagic longline fishermen possess fishing permits 
for several other commercial fisheries, and participate actively in 
these other commercial fisheries. These observations are based on 
information contained in several NMFS databases and on comments 
received during the prior rulemaking to limit access to the shark and 
swordfish fisheries. The data obtained for these analyses also indicate 
that dealers tend to operate in a number of commercial fisheries. Thus, 
fishermen and dealers who could be affected by this action might be 
able to compensate to some extent by redirecting fishing or processing 
activities toward other fish species.

Impacts on Vessel Operators

    NMFS' permitting and reporting requirements for HMS and other 
fisheries provide information about the volume and species of fish 
caught and landed by vessels, and the ex-vessel price received for the 
species landed. To calculate the impact of time-area closures on vessel 
owners, NMFS estimated gross revenues for all permitted vessels using 
1997 data. NMFS then subtracted the gross revenue received in the 
proposed closed area from the total gross revenue calculated for each 
vessel for 1997 to estimate the revenue that might be lost to each 
vessel if a particular area is closed for the specified time period.
    NMFS then counted the number of vessels which were impacted by 
closing certain areas and times. This analysis estimates the maximum 
negative impact of the closures on vessel owners for three reasons: (1) 
It assumes that vessels that normally fish inside the closed area would 
not redistribute their fishing effort outside the area; (2) it assumes 
that the sets made in the closed time-area would not be made at other 
times or in other areas; and (3) it assumes that vessels that fish 
outside the closed area would not land any additional fish even though 
the quota could still be available. However, this analysis does not 
calculate the impact on captains or crew members other than the change 
in gross revenues which is related to the captain and crew share.
    In examining the gross revenue of the 443 vessels that qualified 
for an incidental or directed swordfish limited access permit, NMFS 
found that only 331 vessels reported landings of any species in 1997. 
NMFS estimates that 1997 total gross revenues from all fishing 
activities for each of these vessels ranged from $82 to over $4 million 
per vessel and averaged $113,173 per vessel. If the areas proposed for 
closure were in fact closed, 25 vessels that have revenue before the 
closure might have no revenue after the closure. Under the several 
alternative closed areas considered, the number of businesses that 
could lose all revenues ranged from 36 to 48 vessels.
    NMFS considered 4 combinations of Gulf of Mexico and southeastern 
U.S. Atlantic coast closed areas with variations in size and duration. 
Any of the four closure alternatives could have a significant economic 
impact on a substantial number of small entities. For all options, 
approximately 40 percent of the vessels could experience no change in 
gross revenues as a result of a time-area closure, and 21 to 39 percent 
could experience a 50 percent reduction in gross revenues. The 
estimated impact of the preferred alternative (March-September closure 
in the western Gulf of Mexico and a year-round closure from Key West, 
FL to Wilmington Beach, NC) may be the smallest of the four time-area 
options considered. However, closing any of the areas might force a 
large number of vessels to either relocate their vessels to open areas 
or sell their limited access permits to vessels in the open areas and 
leave the pelagic longline fishery.

Impacts on Dealers

    In addition to calculating the change in gross revenue for each 
vessel issued an incidental or directed swordfish limited access 
permit, NMFS attempted to calculate the change in revenues for dealers 
who bought fish from these vessels. To do so, NMFS calculated the total 
weight sold to each dealer, by species, from each qualifying vessel 
using the weigh-out slips reported to NMFS, and multiplied this weight 
by the average wholesale price to determine the gross revenue for each 
dealer both before and after the closure. As with the vessel gross 
revenue calculations, the analyses for dealers provides an estimate of 
the maximum impact this action might have because it does not consider 
dealers changing the proportion of the species they buy or import, or 
possible increases in fishing effort and harvest and sale to dealers 
located near the open areas.
    In the database used for this analysis, there were 131 dealers 
identified by the 443 vessels on their weigh-out slips for the pelagic 
logbook. A total of 117 dealers obtained revenues from selling 
swordfish, with individual gross revenues ranging from $175 to over $5 
million and averaging $203,679 per dealer. The gross revenues obtained

[[Page 24443]]

from selling yellowfin tuna ranged from $170 to over $4 million on an 
individual basis for 100 dealers and averaged $279,006 per dealer. As 
with individual vessels, some dealers might not handle any fish if the 
areas are closed. Under the closed area alternative proposed by NMFS, 
28 dealers of the 131 which were identified might not handle any fish. 
Under the alternative closed areas considered, the number of businesses 
that would lose all revenues ranged from 34 to 45 dealers.
    Any of the four closure options could have a significant economic 
impact on a substantial number of dealers who operate primarily in 
coastal ports adjacent to the potential closed areas. Approximately 21 
to 33 percent of the dealers could experience no change in total weight 
of fish handled, and 35 to 57 percent of the dealers could experience a 
50-percent reduction in the amount of fish handled due to a time-area 
closure. Approximately 23 to 38 percent of the dealers could experience 
no change in gross revenues from swordfish and 34 to 46 percent of the 
dealers could experience a 50-percent reduction in gross revenue from 
swordfish due to a time-area closure. Approximately 26 to 40 percent of 
the dealers could experience no change in gross revenue from yellowfin 
tuna, and 23 to 52 percent of the dealers could experience a 50-percent 
reduction in gross revenues from yellowfin tuna due to a time-area 
closure. However, dealers outside the closed areas are likely to obtain 
additional fish from pelagic longline fishermen and therefore might 
experience an increase in gross revenues.

Gear Modification and Capacity Reduction Impacts

    The other bycatch reduction alternatives considered also would have 
impacts on gross revenues of vessels and dealers. However, their 
impacts are not likely to be as great as those from the time-area 
closure alternatives. A quantitative analysis of revenues is difficult 
because it is unknown how much the other alternatives could alter the 
landings of pelagic longline fishermen. It is possible that the use of 
circle hooks, frozen bait, a change in gear deployment, or the 
reduction in soak time might reduce the target catch per set, but it is 
equally likely the fishermen could fish additional sets to make up the 
difference. Thus, the impacts of the other alternatives, except for 
capacity reduction, on gross revenues for individual fishermen is 
unknown but most likely would not be as significant as closures. 
Limiting the capacity in the pelagic longline fleet could have a 
significant impact on gross revenues for individual fishermen if 
fishermen who are dependent on the fishery are forced out of business. 
The impact of capacity reduction would depend largely on the type of 
program implemented.

Impacts on Fishing Costs

    All of the alternatives examined, except for no action, could have 
an impact on the fishing costs of individual vessels. A detailed 
analysis of costs for each individual vessel cannot be performed due to 
the lack of trip-level economic data as well as the difficulty in 
predicting the response strategy of individual fishermen. However, some 
generalizations can be made on potential impacts based on examination 
of the voluntary cost/earnings reports submitted by some vessels.
    The preferred closure alternative, or any of the time-area closure 
options, could have a large impact on fishing costs. A number of 
fishermen could be required to move their operations to different areas 
either permanently or for part of the year in order to continue 
fishing. The open fishing areas might be unfamiliar to displaced 
fishermen and fishing might not be as productive until they adapt to 
weather and oceanographic conditions in the new area. Moving operations 
could likely increase the cost of fuel, bait, ice, food, and crew 
wages, as the number of days at sea traveling to and from fishing 
grounds might increase. Likewise, requiring gear modifications would 
increase costs for fishermen who currently use gear and/or fishing 
methods that would be prohibited. Increased costs might force some 
vessel operators to exit the fishery.

Mitigating Impacts

    NMFS considers all permit holders in the pelagic longline fisheries 
to be small entities. Thus, in order to meet the objectives of the HMS 
FMP and address bycatch concerns, NMFS cannot exempt small entities or 
change the requirements for small entities. The preferred time-area 
closure alternative does not involve any additional reporting 
requirements, and NMFS has determined that clarifying or changing the 
reporting requirements for small entities could not address the 
management concerns at issue. The gear modification and fishing methods 
alternatives NMFS examined might have less economic impact on small 
entities but were considered to have less certain effects relative to 
reduction of bycatch and incidental catch by pelagic longlines.
    NMFS concludes that the proposed time-area closures for the Gulf of 
Mexico and the southeast U.S. Atlantic coast could have a significant 
impact on a substantial number of small entities. In fact, a number of 
small entities, both fishermen and businesses related to fishing (e.g., 
dealers and bait houses), might be forced out of business. However, the 
bycatch mortality reductions achieved by time-area closures should 
contribute to rebuilding overfished stocks of swordfish, billfish, and 
other species. This could benefit small businesses though increased 
landings quotas for the commercial fisheries and increased recreational 
fishing opportunities. The IRFA provides further discussion of the 
economic impacts of all the alternatives considered and is available 
from NMFS (see ADDRESSES).

[[Page 24444]]

IRFA: Supplementary Information for DeSoto Canyon

    The economic analyses for the DeSoto Canyon closure alternative 
follow the same methods as the analyses for the other closure 
alternatives. However, the 1998 data have become available since the 
IRFA was issued, and these data were used instead of 1997 data. In 
addition, NMFS used updated information on vessels qualifying for 
limited access permits. As of March 23, 2000, 450 vessels had qualified 
for a swordfish directed or incidental limited access permit and NMFS 
estimates that in 1998, 125 dealers received fish from these 450 
vessels.
    Of the 450 vessels that qualified for a swordfish limited access 
permit, 242 did not report landings in the pelagic logbook. 
Additionally, 413 did not report landings of fish caught within the 
DeSoto Canyon area. Total gross revenues from all fishing activities in 
the Atlantic of the 208 vessels that reported in the pelagic logbook in 
1998 totaled $28 million, ranged from $435 to $667,576, and averaged 
$136,830 per vessel. Total gross revenues from all fishing activities 
in the DeSoto Canyon of the 37 vessels that reported in the pelagic 
logbook in 1998 totaled $636,984, ranged from $681 to $84,959, and 
averaged $17,216 per vessel. If the DeSoto Canyon is closed, NMFS 
estimates that the total gross revenue from the fleet of 208 vessels 
would decrease by 2.2 percent to $27.8 million and the average gross 
revenue per vessel would decrease by 1.8 percent to $134,413. Absent 
redistribution of fishing effort, approximately 14 percent of the 
vessels that reported landings in 1998 would experience a five percent 
decrease in gross revenues if the DeSoto Canyon is closed and four 
percent of the vessels would experience a 50 percent decrease in gross 
revenues.
    NMFS estimates that 125 dealers received fish in 1998 from the 450 
vessels that qualified for swordfish limited access permits. Only 25 
dealers reported receiving swordfish that was caught in the DeSoto 
Canyon by limited access permit holders. These dealers received a total 
of 286,994 pounds that ranged from 397 to 61,470 pounds and averaged 
11,480 pounds per dealer. Absent increased purchases of fish captured 
in other areas, NMFS estimates that if the DeSoto Canyon area is 
closed, the total weight of fish handled by the 125 dealers who bought 
fish from swordfish limited access qualifiers would decrease by 2.8 
percent to 10.0 million pounds, and the average weight handled by each 
dealer would decrease by 0.4 percent to 82,761 pounds. NMFS estimates 
that 11 percent of the swordfish dealers and 10 percent of the 
yellowfin tuna dealers would have a reduction of five percent or 
greater in gross revenues from swordfish or yellowfin tuna, 
respectively, if the DeSoto Canyon area is closed. Additionally, NMFS 
estimates that 6 percent of the swordfish dealers and 3 percent of the 
yellowfin tuna dealers would have a reduction of 50 percent in gross 
revenues from swordfish or yellowfin tuna, respectively.
    The potential impacts on fishing costs of closing the DeSoto Canyon 
are similar to those described for the other closure alternatives. 
However, as this potential closed area is smaller, is farther offshore, 
and is not fished as heavily as the western Gulf of Mexico closure 
previously proposed, it is likely that the impacts on fishing costs 
would be smaller. Only 37 vessels reported fishing in the DeSoto Canyon 
in 1998 and might incur costs to change current fishing practices.
    In conclusion, the economic impacts of a DeSoto Canyon closure 
would not be not as great as the western Gulf of Mexico closed area 
which was the preferred alternative in the proposed rule. The DeSoto 
Canyon closure alone would not have a significant impact on the fishery 
as a whole, and total gross revenues from the vessels fishing in that 
area would decrease by only 2.2 percent. However, this closure could 
have a significant economic impact on a substantial number of small 
entities, including both fishermen and dealers. Absent a shift to other 
fishing areas, 4 percent of the vessels now fishing in the DeSoto 
Canyon could lose 50 percent or more of their income. Likewise, without 
alternative sources of swordfish or yellowfin tuna, approximately 5 
percent of the permitted dealers could go out of business as a result 
of this closure.
    The same alternatives and mitigating measures addressed in the IRFA 
for the proposed rule and summarized above also apply to an evaluation 
of the impacts of the DeSoto Canyon closed area.

Delayed Effectiveness

    During the comment period on the proposed rule, NMFS received 
written comments and oral testimony at public hearings that the pelagic 
longline fleet would require time to adjust given the large geographic 
scale and duration of the proposed closed areas. NMFS recognizes that 
relocation of vessels, families, and shoreline support services is not 
without cost and may require time for adjustment, depending upon the 
measures in the final rule. Industry participants commented that the 
economic impacts identified in the IRFA could be mitigated to some 
extent by allowing sufficient time for vessel relocation and suggested 
that the effective date of the final rule be delayed to reflect this. 
While the Administrative Procedures Act normally requires a 30-day 
delay in effective date for a final rule, some commenters suggested 
that up to a one year delay would be needed to mitigate the effects of 
dislocation. NMFS, therefore, requests further comment on specific 
information related to industry adjustment and on the potential for 
delayed effectiveness to mitigate the short-term economic impact of 
area closures. In addition to descriptions of adjustments that would be 
required, specific comments are solicited on whether a 30, 60, or 90-
day delay in effective date would be adequate to achieve any mitigating 
effect. Comments received prior to the close of the comment period (see 
DATES) will be considered in developing the final rule.

    Dated: April 20, 2000.
Bruce C. Morehead,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. 00-10310 Filed 4-20-00; 4:52 pm]
BILLING CODE 3510-22-F