[Federal Register Volume 66, Number 135 (Friday, July 13, 2001)]
[Rules and Regulations]
[Pages 36711-36714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17657]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No.010710169-1169-01; I.D. 060401B]
RIN 0648-AP31


Atlantic Highly Migratory Species; Pelagic Longline Fishery; Sea 
Turtle Protection Measures

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Emergency rule; request for comments.

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[[Page 36712]]

SUMMARY: NMFS issues an emergency rule closing the Northeast Distant 
Statistical Reporting (NED) Area to pelagic longline fishing. 
Additionally, this emergency rule requires operators of all vessels 
that use pelagic longline gear and have been issued, or are required to 
have, Federal highly migratory species (HMS) limited access fishing 
permits and that fish in the Atlantic Ocean, including the Gulf of 
Mexico and Caribbean Sea, to follow certain requirements in deploying 
their gear. Finally, all operators of vessels that have been issued, or 
are required to have, HMS fishing permits must post in the wheelhouse 
safe handling guidelines for sea turtles captured in pelagic longline 
fisheries to be supplied by NMFS. This rule is necessary to reduce the 
bycatch and bycatch mortality of loggerhead and leatherback sea turtles 
in the Atlantic pelagic longline fishery as required by the June 8, 
2001, Biological Opinion (BO).

DATES: This emergency rule is effective July 11, 2001, through January 
9, 2002, except for amendments to: Sec. 635.21(a)(3), effective 
September 15, 2001, local time, through January 9, 2002; 
Sec. 635.21(c)(2) and Sec. 635.21(c)(6), effective from July 15, 2001, 
local time through January 9, 2002; and Sec. 635.21(c)(5)(iii), 
effective August 1, 2001, local time, through January 9, 2002.

ADDRESSES: Written comments on this action must be mailed to 
Christopher Rogers, Acting Chief, NMFS Highly Migratory Species 
Management Division, 1315 East-West Highway, Silver Spring, MD 20910; 
or faxed to 301-713-1917. Comments will not be accepted if submitted 
via e-mail or the Internet. Copies of the environmental assessment and 
regulatory impact review prepared for this action may be obtained from 
Tyson Kade at the address listed here.

FOR FURTHER INFORMATION CONTACT: Tyson Kade or Karyl Brewster-Geisz at 
301-713-2347.

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. Atlantic sharks are managed under the authority 
of the Magnuson-Stevens Act. The Fishery Management Plan for Atlantic 
Tunas, Swordfish, and Sharks (HMS FMP) is implemented by regulations at 
50 CFR part 635.

Pelagic Longline Fishery

    Pelagic longline gear is a type of commercial fishing gear used by 
U.S. fishermen in the Atlantic Ocean to target HMS. The gear consists 
of a mainline, often many miles long, 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 yellowfin 
tuna, bigeye tuna, or swordfish.
    Data collected through observer and vessel logbook programs 
indicate that pelagic longline fishing for Atlantic swordfish and tunas 
often results in the catch of non-target finfish species, including 
sharks, bluefin tuna, billfish, undersized swordfish, and of protected 
species, including threatened and endangered sea turtles. The bycatch 
of protected species (sea turtles or marine mammals) may significantly 
impair the recovery of these species. Consistent with national standard 
9 of the Magnuson-Stevens Act, NMFS has implemented measures to reduce 
bycatch and bycatch mortality to the extent practicable in the Atlantic 
pelagic longline fishery.

Sea Turtle Bycatch Reduction

    Under the Endangered Species Act (ESA), NMFS is required to address 
the fishery-related take of sea turtles that are listed as threatened 
or endangered. Although a high percentage of hooked sea turtles are 
released alive, NMFS remains concerned about serious injuries of 
turtles taken by pelagic longline gear.
    In a Biological Opinion (BO) prepared under section 7 of the ESA, 
completed June 30, 2000, NMFS concluded that operation of the pelagic 
longline fishery jeopardized the continued existence of threatened 
loggerhead and endangered leatherback sea turtles. After the June 30, 
2000, BO was issued, NMFS concluded that further analyses of observer 
data and additional population modeling of loggerhead sea turtles were 
needed to determine more precisely the impact of the pelagic longline 
fishery on sea turtles. Consequently, NMFS re-initiated consultation on 
September 7, 2000. The new BO, issued on June 8, 2001, incorporates 
information from the February 2001 Stock Assessment of Loggerhead and 
Leatherback Sea Turtles and an Assessment of the Impact of the Pelagic 
Longline Fishery on the Loggerhead and Leatherback Sea Turtles of the 
Western North Atlantic.
    The June 8, 2001, BO concludes that the operation of the U.S. 
pelagic longline fishery jeopardizes the continued existence of 
loggerhead and leatherback sea turtles. The June 8, 2001, BO estimates 
that a 55-percent reduction in bycatch mortality from the pelagic 
longline fishery is necessary to allow for the recovery of these two 
species. It is anticipated that this level of reduction can be achieved 
by implementing an area closure and by modifying how pelagic longline 
gear is deployed.

Area Closure and Gear Modifications

    The intent of this emergency rule is to reduce the incidental take 
and mortality of sea turtles captured by pelagic longlines. The first 
measure is a closure of the NED area effective July 15, 2001. The NED 
area has the highest incidental take rate of sea turtles by the U.S. 
pelagic longline fleet. This emergency regulation will close the NED 
area to vessels that have been issued, or are required to have, Federal 
HMS limited access permits and/or use pelagic longline gear. The closed 
area is bounded by the following coordinates: 35 deg.00' N. lat., 
60 deg.00' W. long.; 55 deg.00' N. lat., 60 deg.00' W. long.; 
55 deg.00' N. lat., 20 deg.00' W. long.; 35 deg.00' N. lat., 20 deg.00' 
W. long. This closure comprises an area of 2,631,00 square nautical 
miles (nm\2\), including the Grand Banks and other fishing locations. 
Only larger vessels, primarily fishing out of ports in the northeast, 
travel to this area on a seasonal basis, from June to October. Although 
the NED area is large, vessels fishing in that area primarily utilize 
only about 168,000 nm\2\ or less than 10 percent of the total area 
subject to the closure.
    The second measure, effective August 1, 2001, is designed to reduce 
the mortality rate of captured sea turtles year-round and in all 
fishing areas. All Atlantic vessels that use pelagic longline gear and 
have been issued, or are required to have, Federal HMS limited access 
permits are prohibited from setting gangions within two gangion lengths 
of the floatline. Specifically, while the gear is deployed, gangions 
may not be attached to floatlines, nor to the mainline except at a 
distance from the attachment point of the floatline to the mainline of 
at least twice the length of the average gangion length in the set. 
Based on information from the Hawaii longline fleet, hooks that are 
beneath or adjacent to floatlines have a much higher incidental take of 
sea turtles than hooks one or more positions away from the floatline. 
NMFS projects that this measure will result in reductions of 22 percent 
for loggerhead interactions and 24 percent for leatherback 
interactions.

[[Page 36713]]

    In addition to restricting the gangion placement relative to the 
floatline, all Atlantic vessels that use pelagic longline gear and have 
been issued, or are required to have, Federal HMS limited access 
permits must deploy the gear during shallow sets so that the length of 
the gangion is greater than the length of the floatline. The intent of 
this requirement is to ensure that hooked or entangled turtles have 
sufficient slack line to be able to reach the surface and avoid 
drowning. For longline sets in which the combined depth of the 
floatline plus the gangion is 100 meters or less, the length of the 
gangion must be at least 10 percent longer than the length of the 
floatline. For sets over 100 meters, the requirement does not apply.
    Finally, all Atlantic vessels that have been issued, or are 
required to have, Federal HMS permits for any gear type and/or target 
species are required to post inside the wheelhouse the guidelines for 
the safe handling of sea turtles captured in a pelagic longline 
interaction. This measure will allow vessel captains to refer to the 
appropriate handling and release guidelines in the event a sea turtle 
is accidentally hooked or entangled. The requirement to post sea turtle 
handling instructions is effective September 15, 2001. NMFS will 
distribute the guidelines via mail to all HMS permit holders and 
announce this requirement and the availability of the guidelines via 
the fax network. If a vessel owner does not receive the document by 
September 1, 2001, it will be available for downloading by that date 
from the Internet at: http://www.nmfs.noaa.gov/sfa/hmspg.html, or NMFS 
can be contacted to request a copy requested (see ADDRESSES).

Experimental Fishery

    Consistent with the BO, NMFS expects to undertake a research 
program, in consultation and cooperation with the domestic pelagic 
longline fleet, to develop and evaluate the efficacy of new 
technologies and changes in fishing practices to reduce sea turtle 
interactions. The experimental fishery will use a limited number of 
qualifying commercial fishing vessels as cooperative research platforms 
in the NED area. To provide for the maximum amount of transparency and 
public participation in the process of developing the experimental 
fishery, NMFS has applied for an ESA section 10 permit to conduct this 
scientific research (June 4, 2001, 66 FR 29934). Any research plan 
approved for this experimental fishery, as stated in the BO, will 
comply with four conditions: the sea turtle target mortality reduction 
will be 55 percent, the duration will be 3 years, all measures that are 
tested must be exportable to international fleets, and the level of 
mortality reduction may be achieved through reducing take rates or 
improving post-release survival for captured sea turtles.

Classification

    This emergency rule is issued under the authority of the Magnuson-
Stevens Act and the Atlantic Tunas Convention Act. The Acting Assistant 
Administrator for Fisheries, NOAA (AA) has determined that these 
regulations are necessary to comply with the requirements of the June 
8, 2001, BO.
    NMFS prepared an Environment Assessment for this emergency rule 
that describes the impact on the human environment and found that no 
significant impact would result. This emergency rule is of limited 
duration. NMFS plans to undertake rulemaking, including preparation of 
an environmental impact statement, that will propose measures necessary 
to meet the requirements of the June 8, 2001, BO on a permanent basis.
    To comply with Executive Order 12866, NMFS also prepared a 
Regulatory Impact Review for this action which assesses the net 
economic costs and benefits of this action. In 1999, 10 vessels fished 
in the NED area and accounted for 18.5 percent of the total number of 
swordfish landed by the entire fleet. Tuna are also caught by vessels 
fishing in this area, but the percentage is minuscule compared to the 
amount of swordfish landed by these vessels. The estimated total annual 
ex-vessel gross revenues from swordfish for the 10 vessels in the NED 
area were approximately $3.2 M in 1999, with an estimated average of 
$323,532 ex-vessel revenues per vessel. The estimated total annual ex-
vessel revenues from swordfish for all areas except the NED area is 
$13.9 M for 1999.
    Thus, closing the NED area could reduce the total annual ex-vessel 
gross revenues of the swordfish fishery by almost 20 percent. This 
reduction would likely cause some individual fishermen who normally 
fish in the NED area (10 vessels in 1999) to experience a large 
decrease in gross revenues. This reduction would also likely cause some 
individual processors, dealers, and suppliers to experience a slight 
increase in costs if they need to relocate, and possibly a decrease in 
gross revenues if they rely mostly on landings from the NED area. 
However, this closure should not affect the fleet as a whole. It is 
anticipated that some of the vessels that have historically fished in 
the NED area will participate in the planned experimental fishery. It 
is intended that participants in the research program will be 
compensated by NMFS for costs not covered through sale of swordfish, 
shark, and tunas caught during fishing operations.
    The gear modifications required by this emergency rule are not 
expected to incur significant economic costs other than the potential 
effect on catch rates for target species. In many cases, the fishermen 
would be required to purchase these expendable supplies (monofilament 
and hooks) in the normal course of business. Posting the sea turtle 
handling guidelines is not expected to incur any additional expense. 
Thus, this emergency rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    NMFS issues this emergency rule, effective for 180 days, as 
authorized by section 305(c) of the Magnuson-Stevens Act. This 
emergency rule may be extended for an additional 180 days provided the 
public has had an opportunity to comment on the emergency rule and, at 
the time of extension, a plan amendment or proposed regulations to 
address sea turtle bycatch and bycatch mortality on a permanent basis 
is being actively pursued. Public comments on this emergency rule will 
be considered in determining whether to extend this emergency rule to 
reduce sea turtle bycatch. Responses to comments will be provided if 
the emergency rule is revoked, modified, or extended.
    Because no general notice of proposed rulemaking is required to be 
published in the Federal Register for this emergency rule, the 
analytical requirements of the Regulatory Flexibility Act are not 
applicable and no Regulatory Flexibility Analysis was prepared.
    The AA finds that there is good cause to waive the requirement to 
provide prior notice and an opportunity for public comment pursuant to 
authority set forth at 5 U.S.C. 553(b)(B), as providing prior notice 
and an opportunity for public comment would be contrary to the public 
interest. Public comments were received regarding the April 11, 2001 
draft BO, which indicated the measures to be implemented by this 
emergency rule. This emergency rule is necessary to reduce the 
anticipated impacts of the pelagic longline fishery on listed sea 
turtles and to implement the provisions of the June 8, 2001, BO, 
prepared under section 7 of the ESA. To avoid jeopardy to listed sea 
turtles, the NED area closure must be in effect by July 15, 2001, the 
gangion placement and length requirements must be in effect by

[[Page 36714]]

August 1, 2001, and the sea turtle safe handling guidelines must be 
posted in the wheelhouse of all vessels with an HMS permit by September 
15, 2001. The months of July through October, are historically high 
periods of sea turtle interactions. If these actions are delayed, the 
highest level of fishing activity in the NED area will have already 
occurred for the 2001 fishing year and the expected reduction in sea 
turtle bycatch and associated mortality will not be achieved.
    The AA, under 5 U.S.C. 553(d)(3), finds that it would be contrary 
to the public interest to delay the effective date of the NED area 
closure for the 30 days normally required. The AA finds that this 
measure is necessary to reduce sea turtle bycatch and bycatch mortality 
that otherwise would occur this fishing season and that fishermen do 
not need time in order to comply with this regulation. Given NMFS's 
ability to communicate regulations to fishing interests through the HMS 
Fax network, NOAA weather radio, press releases, mailing lists, the 
Internet, and the HMS Infoline, and because NMFS has previously 
notified the public via fax network and Federal Register notice of the 
results and requirements of the June 8, 2001, BO and that the agency 
will promulgate an emergency rule, the AA has determined there is good 
cause to waive the 30-day delay in the effective date because such 
delay would be contrary to the public interest.
    Similarly, the AA, under 5 U.S.C. 553(d)(3), finds that it would be 
contrary to the public interest to delay the effective date of the gear 
modifications for all of the 30 days normally required. The AA finds 
that this measure is also necessary to reduce sea turtle bycatch and 
bycatch mortality that would otherwise occur during this fishing 
season. The AA also finds that a small delay is justified so that 
fishermen can modify the gear as required by this emergency rule. 
However, because the modifications should not be difficult to make, 
because NMFS has previously notified the public via fax network and 
Federal Register notice of the results and requirements of the June 8, 
2001, BO, and because the fishing season has already started, the AA 
has determined there is good cause to waive part of the 30-day delay in 
the effective date because such delay would be contrary to the public 
interest.
    Given the time required for NMFS to print and distribute the sea 
turtle handling and release guidelines, the BO allowed for delayed 
effectiveness of the posting requirement.
    The AA has determined that this emergency rule is consistent to the 
maximum extent practicable with the coastal zone management programs of 
those Atlantic, Gulf of Mexico, and Carribean coastal states that have 
approved coastal zone management programs. NMFS notified the states as 
soon as the June 8, 2001, BO was released and requested that they 
notify the agency with respect to concurrence with the consistency 
determination.

List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements, Statistics, Treaties.

    Dated: July 10, 2001.
William T. Hogarth,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 635 is 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, new definitions for ``floatline,'' ``gangion,'' 
and ``northeast distant closed area'' are added alphabetically to read 
as follows:


Sec. 635.2  Definitions.

* * * * *
    Floatline means a line attached to a buoyant object that is used to 
support the mainline of a longline at a specific target depth.
    Gangion means a line that serves to attach a hook, suspended at a 
specific target depth, to the mainline of a longline.
* * * * *
    Northeast Distant closed area means the Atlantic Ocean area bounded 
by straight lines connecting the following coordinates in the order 
stated: 35 deg.00' N. lat., 60 deg.00' W. long.; 55 deg.00' N. lat., 
60 deg.00' W. long.; 55 deg.00' N. lat., 20 deg.00' W. long.; 
35 deg.00' N. lat., 20 deg.00' W. long.; 35 deg.00' N. lat., 60 deg.00' 
W. long.
* * * * *

    3. In Sec. 635.21, paragraph (c)(2) is suspended and paragraphs 
(a)(3), (c)(5)(iii), and (c)(6) are added to read as follows:


Sec. 635.21  Gear operation and deployment restrictions.

* * * * *
    (a) * * *
    (3) Effective September 15, 2001, through January 9, 2002, 
operators of all vessels issued, or required to have, a permit under 
this part must post inside the wheelhouse the sea turtle handling and 
release guidelines provided by NMFS.
* * * * *
    (c) * * *
    (5) * * *
    (iii) Gear modifications. The following measures to reduce the 
incidental capture and mortality of sea turtles are effective August 1, 
2001, through January 9, 2002.
    (A)Gangion placement. Pelagic longline gear must be deployed such 
that gangions may not be attached to floatlines nor to the mainline 
except at a distance from the attachment point of the floatline to the 
mainline, along the mainline, of at least twice the length of the 
average gangion length in the set.
    (B) Gangion length. Pelagic longline gear must be deployed such 
that the length of the gangion is at least 10 percent greater than the 
length of the floatline for longline sets in which the combined length 
of the floatline and the gangion is 100 meters or less.
    (6) If pelagic longline gear is on board a vessel issued, or 
required to have, a permit under this part, persons aboard that vessel 
may not fish or deploy any type of fishing gear in:
    (i) The Northeastern United States closed area from June 1 through 
June 30 each calender year;
    (ii) In the Charleston Bump closed area from March 1 through April 
30, 2001, and from February 1 through April 30 each calender year 
thereafter;
    (iii) In the East Florida Coast closed area at any time beginning 
at 12:01 a.m. on March 1, 2001;
    (iv) In the DeSoto Canyon closed area at any time beginning at 
12:01 a.m. on November 1, 2000;
    (v) In the Northeast Distant closed area from July 15, 2001, 
through January 9, 2002.
* * * * *
[FR Doc. 01-17657 Filed 7-11-01; 12:17 pm]
BILLING CODE 3510-22-S