[Federal Register Volume 67, Number 69 (Wednesday, April 10, 2002)]
[Proposed Rules]
[Pages 17349-17353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8689]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 020325067-2067-01; I.D. 080901B]
RIN 0648-AP49


Atlantic Highly Migratory Species; Pelagic Longline Fishery; 
Shark Gillnet Fishery; Sea Turtle and Whale Protection Measures

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

[[Page 17350]]


ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule is necessary to implement the measures 
required by the June 14, 2001, Biological Opinion (BiOp) issued by 
NMFS' Office of Protected Resources. The reasonable and prudent 
alternative (RPA) of the BiOp requires NMFS to implement several 
measures for the pelagic longline fishery. These include: close the 
northeast distant statistical reporting (NED) area, require gangions to 
be two gangion lengths from floatlines, require gangion lengths to be 
110 percent of floatline lengths in shallow sets, and require 
corrodible, non-stainless steel hooks to be deployed. The terms and 
conditions (TCs) of the BiOp requires NMFS to implement several 
measures for the shark gillnet fishery. These include: require both the 
observer and vessel operator to be responsible for sighting whales and 
the vessel operator to contact NMFS if a listed whale is taken and 
require shark gillnet fishermen to conduct net checks every 0.5 to 2 
hours to look for and remove any sea turtles or marine mammals from 
their gear. This proposed rule would also require bottom and pelagic 
longline vessels to post sea turtle handling and release guidelines in 
the wheelhouse. The intent of these proposed actions is to reduce the 
incidental catch and post-release mortality of sea turtles and 
protected species in highly migratory species (HMS) fisheries.

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 10, 2002. Public hearings on this proposed rule will be held in 
April 2002. 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 
Christopher Rogers, Chief, Highly Migratory Species Management Division 
(SF/1), National Marine Fisheries Service, 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. Comments regarding the collection-of-information 
requirements contained in this proposed rule should be sent to the HMS 
Division, 1315 East-West Highway, Silver Spring, MD 20910, and to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget (OMB), Washington, DC 20503 (Attention: NOAA Desk Officer). For 
copies of the Draft Environmental Impact Statement/Regulatory Impact 
Review/Initial Regulatory Flexibility Analysis (DSEIS/RIR/IRFA), 
contact Tyson Kade at 301-713-2347.

FOR FURTHER INFORMATION CONTACT: Karyl Brewster-Geisz, Tyson Kade, or 
Margo Schulze-Haugen at 301-713-2347 or fax 301-713-1917.

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). 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. The management of the Atlantic pelagic 
longline fishery and the shark gillnet fishery is also subject to the 
requirements of the Endangered Species Act (ESA) and the Marine Mammal 
Protection Act (MMPA).

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 to sea 
turtles taken by pelagic longline gear. Longline fisheries generally 
affect sea turtles by entangling or hooking them in fishing gear. Sea 
turtles that become entangled in longline gear may drown when they are 
forcibly submerged or they may be injured by the entangling lines. 
Turtles that are hooked by longline gear can be injured or killed, 
depending on whether they are hooked internally or externally and 
whether the hook sets deep in their tissue. In addition to these 
immediate effects, longline gear can have long-term effects on a 
turtle's ability to swim, forage, migrate, and breed, although these 
long-term effects are difficult to monitor or measure. From 1992 to 
1999, NMFS estimates that the pelagic longline fishery interacted with 
an average of 795 leatherback and 986 loggerhead sea turtles annually 
with an average estimate of 11 leatherback and 8 loggerhead annual 
mortalities.
    In a BiOp prepared under section 7 of the ESA, completed June 14, 
2001, NMFS concluded that operation of the U.S. Atlantic pelagic 
longline fishery jeopardized the continued existence of threatened 
loggerhead and endangered leatherback sea turtles. 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 is incorporated in the BiOp's analysis. The BiOp estimates 
that a 55-percent reduction in bycatch mortality from the Atlantic 
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 the manner 
in which pelagic longline gear is deployed. The BiOp also requires 
several other measures to be implemented in the bottom and pelagic 
longline and shark gillnet fisheries.

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.

Area Closure

    The intent of this proposed rule is to reduce the incidental take 
and mortality of sea turtles captured by pelagic longlines. The first 
measure would be a closure of the NED area. The NED area has the 
highest incidental take rate of sea turtles by the U.S. Atlantic 
pelagic longline fleet. This proposed regulation would 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.

[[Page 17351]]

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 2,631,000 square 
nautical miles (nm2), 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. The BiOp estimates that this closure would reduce leatherback 
and loggerhead sea turtle interactions by 58 and 67 percent 
respectively.

Gear Modifications

    In addition to the closure, there are several gear modifications 
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 would be 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 and the NED experiment, 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 would result in reductions of 22 percent for 
loggerhead interactions and 24 percent for leatherback interactions.
    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 would be required to 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 would be to ensure that 
hooked or entangled turtles have sufficient slack line to be able to 
reach the surface and avoid drowning. For pelagic 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 in which the combined 
depth is over 100 meters, the requirement does not apply.
    NMFS proposes to require all vessels that use pelagic longline gear 
and have been issued, or are required to have, Federal HMS limited 
access permits to use corrodible hooks and/or crimps. At the current 
time, NMFS considers corrodible hooks and crimps to be those 
manufactured out of non-stainless steel. NMFS expects to have a 
workshop in 2002 to assess the impacts of corrodible hooks on sea 
turtles. Currently, this measure is believed to reduce the post-release 
mortality of sea turtles by either causing the fishing line to fall off 
or causing the hook to fall out earlier than might occur if it were 
made of stainless steel.
    Finally, all Atlantic vessels that use bottom or pelagic longline 
gear and have been issued, or are required to have, Federal HMS limited 
access permits would be required to post inside the wheelhouse the 
guidelines for the safe handling of sea turtles captured in a longline 
interaction. This measure would allow vessel captains to refer to the 
appropriate handling and release guidelines in the event a sea turtle 
is hooked or entangled. NMFS previously distributed the guidelines via 
mail to all HMS bottom and pelagic longline permit holders and 
announced this requirement (66 FR 36711, July 13, 2001) and the 
availability of the guidelines via the fax network in September 2001. 
If a vessel owner did not receive the document, it is available for 
downloading from the Internet at: http://www.nmfs.noaa.gov/sfa/hmspg.html, or NMFS can be contacted to request a copy (see ADDRESSES).

Reporting

    One of the TCs of the BiOp requires that the captains of all 
vessels that use pelagic longline gear and have been issued, or are 
required to have, Federal HMS limited access permits report any turtles 
that are dead when they are captured or that die during capture to the 
Southeast Fisheries Science Center (SEFSC) Observer Program within 48 
hours of returning to port. NMFS expects that this regulation would 
provide a better assessment of the number of sea turtles harmed during 
pelagic longline operations. This could result in more accurate 
management decisions involving fishery interactions with protected 
species.

Experimental Fishery

    Consistent with the BiOp, NMFS expects to continue 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 uses 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 applied for an ESA section 10 permit to conduct this 
scientific research (66 FR 29934, June 4, 2001). The approved research 
plan for the experimental fishery, as stated in the BiOp, complies with 
four conditions: the sea turtle target mortality reduction is 55 
percent, the duration is no more than 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. NMFS 
conducted the first year of the experiment in 2001 and is analyzing the 
results prior to developing the experimental design for the 2002 
experiment.

Atlantic Shark Gillnet Fishery

    Gillnet fishing for sharks occurs primarily in the waters off the 
coasts of Georgia and Florida. The fishery is comprised of 4 to 12 
vessels that engage in nearshore fishing trips that typically last less 
than 18 hours. Legislation in South Carolina, Georgia, and Florida has 
prohibited the use of commercial gillnets in state waters, causing 
these vessels to operate further offshore in waters under Federal 
jurisdiction. Historically, eight shark species made up over 99 percent 
of sharks caught, including: blacknose, Atlantic sharpnose, blacktip, 
finetooth, scalloped hammerhead, bonnethead, spinner, and great 
hammerhead sharks. The June 14, 2001, BiOp contains several TCs that 
NMFS must implement to reduce interactions with and mortalities of sea 
turtles and whales in the HMS shark gillnet fishery. The two 
requirements addressed by this proposed rule are discussed below.

Sighting Whales

    This action proposes that both the vessel operator of all vessels 
issued Federal Atlantic shark limited access permits and that fish for 
Atlantic sharks with a shark gillnet (as defined by 50 CFR 229.2) and, 
in cases where an observer is on board, the observer would be 
responsible for sighting whales. The vessel operator would be 
responsible for contacting the Southeast Regional Office (SERO) of NMFS 
and ceasing fishing in the event of a listed whale being taken in the 
drift gillnet/strikenet gear. By having two people responsible for 
sighting whales, it is hoped that the animals would be spotted prior to 
any fishery interaction occurring.

[[Page 17352]]

Checking Gear

    In the shark gillnet fishery, it is customary for fishermen to 
inspect the length of the net every 0.5 to 2 hours to check the net and 
the catch. This proposed regulation would require the fishermen to 
conduct these net checks to look for and remove any sea turtles and 
marine mammals found during these checks. While using the gear for 
strikenetting, the fishermen would be exempt from this requirement due 
to the limited soak time. As the average soak time for the drift 
gillnets in this fishery is 5.6 to 7.5 hours, this measure would be 
expected to reduce the mortality level of incidentally captured 
protected species.

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 prepared an initial regulatory flexibility analysis.
    The initial regulatory flexibility analysis examines the impacts of 
the preferred alternatives, discussed previously in this document. It 
assumes that distant water fishermen, during the time they would 
otherwise be pelagic longline fishing in the NED area would instead: 
(1) make longline sets in other areas or (2) exit commercial fishing. 
As of October 2001, there were 320 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. 
Since 1997, an average of 15 vessels have fished each year in the NED 
area. Due to the size and cost of operation of these boats, NMFS feels 
that it may not be as economical to fish in other areas of the Atlantic 
Ocean and thus the vessels fishing in the NED would be significantly 
impacted. The other preferred alternatives are not expected to have 
significant economic effects.
    The other alternatives considered for the pelagic longline fishery 
include: taking no action; other gear modifications, such as requiring 
dehookers, requiring hooks to be set deeper in the water column, 
requiring the use of blue-dyed bait, requiring the use of mackerel as 
bait, requiring the use of stealth gear, and requiring the use of 
circle hooks; and a ban on pelagic longline fishing by U.S. vessels in 
the Atlantic Ocean. While the no action and most of the gear 
modification alternatives would not be expected to have significant 
economic impacts on participants in the pelagic longline fishery, these 
alternatives either do not reduce bycatch to the extent required by the 
BiOp or are not supported by sufficient data to support implementation. 
Initial data concerning the alternative requiring circle hooks 
indicates that they may significantly reduce post-release mortality of 
sea turtles; however, more information is needed concerning impacts on 
target catch and appropriate hook size. In addition, there would be an 
economic cost associated with this alternative if fishing vessels were 
required to switch to circle hooks. 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 for the pelagic longline fishery.
    The two preferred alternatives for the shark gillnet fishery would 
affect a small number of vessels, approximately four to eleven based on 
NMFS records. The alternative to contact NMFS following the take of a 
listed whale species could have an economic impact as the vessel would 
be required to terminate fishing operations for that trip. The 
alternative requiring shark drift gillnet fishermen to check their nets 
every 0.5 to 2 hours could increase the cost per trip based on the 
amount of fuel consumed. However, NMFS does not expect these impacts to 
be significant.
    Of the alternatives that were not selected, taking no action would 
not impose an economic impact. However, prohibiting drift gillnet gear 
in the shark fishery and requiring vessels to fish in a strikenet 
fashion using spotter planes could impose a significant negative effect 
upon the vessels in the shark gillnet fishery.
    This proposed rule contains collection-of-information requirements 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). These reporting 
requirements for pelagic longline and shark gillnet vessel operators 
have been submitted to OMB for approval. Public reporting burden for 
this collection of information is estimated to average 5 minutes per 
response, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information.
    Public comment is sought regarding: whether these proposed 
collections of information are necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to the HMS 
Division at the ADDRESSES above, and to OMB at the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
Washington, DC 20503 (Attention: NOAA Desk Officer).
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 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: March 29, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, 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, new definitions for ``Bottom longline,'' 
``Corrodible hook,'' ``Floatline,'' ``Gangion,'' and ``Northeast 
distant closed area'' are added alphabetically to read as follows:


Sec. 635.2  Definitions.

* * * * *
    Bottom longline means longline gear that is deployed on or near the 
ocean floor.
* * * * *

[[Page 17353]]

    Corrodible hook means a fishing hook composed of any material other 
than stainless steel.
* * * * *
    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. 635.5, paragraphs (a)(4) and (5) are added to read as 
follows:


Sec. 635.5  Recordkeeping and reporting.

* * * * *
    (a) * * *
    (4) Pelagic longline sea turtle reporting. The operators of vessels 
that have pelagic longline gear on board and that have been issued, or 
are required to have, a limited access swordfish, shark, or tuna 
longline category permit for use in the Atlantic Ocean including the 
Caribbean Sea and the Gulf of Mexico are required to report any sea 
turtles that are dead when they are captured or that die during capture 
to the NMFS Southeast Fisheries Science Center Observer Program, at a 
number designated by NMFS, within 48 hours of returning to port, in 
addition to submitting all other reporting forms required by this part 
and 50 CFR parts 223 and 224.
    (5) Shark gillnet whale reporting. The vessel operators of vessels 
that are shark gillnetting, as defined by 50 CFR 229.2, and that have 
been issued, or are required to have, shark directed or incidental 
limited access permits for use in the Atlantic Ocean including the 
Caribbean Sea and the Gulf of Mexico are required to contact the NMFS 
Southeast Regional Office, at a number designated by NMFS, if a listed 
whale is taken, in addition to submitting all other reporting forms 
required by this part and 50 CFR part 229.
* * * * *

    4. In Sec. 635.21, paragraphs (a)(3), (c)(2)(v), (c)(5)(iii), 
(d)(3)(v), and (d)(3)(vi) are added to read as follows:


Sec. 635.21  Gear operation and deployment restrictions.

    (a) * * *
    (3) Operators of all vessels that have pelagic or bottom longline 
gear on board and that have been issued, or required to have, a limited 
access swordfish, shark, or tuna longline category permit for use in 
the Atlantic Ocean including the Caribbean Sea and the Gulf of Mexico 
must post inside the wheelhouse the sea turtle handling and release 
guidelines provided by NMFS.
* * * * *
    (c) * * *
    (2) * * *
    (v) In the Northeast Distant closed area at any time beginning at 
12:01 a.m. on July 9, 2002.
* * * * *
    (5) * * *
    (iii) Gear modifications. The following measures are required of 
vessel operators to reduce the incidental capture and mortality of sea 
turtles:
    (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.
    (C) Corrodible hooks. Pelagic longline gear must be deployed with 
only corrodible hooks.
* * * * *
    (d) * * *
    (3) * * *
    (v) Both the observer and vessel operator are responsible for 
sighting whales. If a listed whale is taken, the vessel operator must 
cease fishing operations immediately.
    (vi) Vessel operators are required to conduct net checks every 0.5 
to 2 hours to look for and remove any sea turtles or marine mammals.
* * * * *

    5. In Sec. 635.71, paragraphs (a)(36) and (37) are added to read as 
follows:


Sec. 635.71  Prohibitions.

    (a) * * *
    (36) Fish with bottom or pelagic longline and shark gillnet gear 
for HMS without using the gear modifications required in 50 CFR 635.21.
    (37) Fail to report to NMFS the incidental capture of listed whales 
with shark gillnet gear and sea turtle mortalities associated with 
pelagic longline gear as required by 50 CFR 635.5.
* * * * *
[FR Doc. 02-8689 Filed 4-9-02; 8:45 am]
BILLING CODE 3510-22-S