[Federal Register Volume 85, Number 241 (Tuesday, December 15, 2020)]
[Proposed Rules]
[Pages 81168-81175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26288]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 201123-0312]
RIN 0648-BF90


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Amendment to the Atlantic Pelagic Longline Take Reduction 
Plan

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 amend the regulations implementing the 
Atlantic Pelagic Longline Take Reduction Plan (hereinafter called the 
PLTRP or the Plan) to reduce mortalities and serious injuries of short-
finned pilot whales incidental to the Atlantic pelagic longline fishery 
to meet the long-term goal of the Plan as required by the Marine Mammal 
Protection Act (MMPA). The PLTRP currently contains both regulatory and 
non-regulatory management measures to reduce mortality and serious 
injury of pilot whales (Globicephala spp.) and Risso's dolphins 
(Grampus griseus), in the Atlantic portion of the Category I Atlantic 
Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery 
(hereinafter called Atlantic pelagic longline fishery). The proposed 
amendments to the PLTRP are based on consensus recommendations 
submitted by the Atlantic Pelagic Longline Take Reduction Team 
(hereinafter called the PLTRT or the Team) and include: Removing the 
Cape Hatteras Special Research Area and the associated special observer 
and research participation requirements for fishermen operating in that 
area, modifying the mainline length restrictions for pelagic longline 
sets in the U.S. exclusive economic zone (EEZ) portion of the Mid-
Atlantic Bight, and implementing required hook and gangion 
modifications in the EEZ portion of the Florida East Coast, South 
Atlantic Bight, Mid-Atlantic Bight and Northeast Coastal fishing areas. 
Furthermore, NMFS is removing Risso's dolphins and long-finned pilot 
whales from the Plan's scope.

DATES: Written comments on the proposed rule must be received no later 
than 5 p.m. eastern time on February 16, 2021.

ADDRESSES: You may submit comments on this proposed rule, identified by 
0648-BF90, by any of the following methods:
     Federal eRulemaking Portal: Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0105, click the ``Comment Now!' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Erin Foug[egrave]res, Southeast Regional Office, 
NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.
    Instructions: NMFS may not consider comments if they are sent by 
any other method, to any other address or individual, or received after 
the comment period ends. All comments received are a part of the public 
record and NMFS will generally post for public viewing on to 
www.regulations.gov without change. All personal identifying 
information (for example, name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender is publicly accessible. NMFS will accept anonymous 
comments (enter N/A in the required fields, if you wish to remain 
anonymous). You may submit attachments to electronic comments in 
Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
    The draft Environmental Assessment, Regulatory Impact Review, 
Regulatory Flexibility Act Analysis, and references for the Proposed 
rule, can be found in the Federal eRulemaking Portal as supplementary 
document. Background documents for the PLTRP can be downloaded from the 
Take Reduction

[[Page 81169]]

website: https://www.fisheries.noaa.gov/national/marine-mammal-protection/pelagic-longline-take-reduction-plan, or by submitting a 
request to the Team coordinator, Erin Foug[egrave]res, 727-824-5312.

FOR FURTHER INFORMATION CONTACT: Erin Foug[egrave]res, NMFS, Southeast 
Region, 727-824-5312, or Kristy Long, NMFS, Office of Protected 
Resources, 206-526-4792. Individuals who use telecommunications devices 
for the deaf (TDD) may call the Federal Information Relay Service at 1-
800-877-8339 between 8 a.m. and 4 p.m. eastern time, Monday through 
Friday, excluding Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    Section 118(f) of the MMPA requires NMFS to develop and implement 
take reduction plans to assist in the recovery of, or prevent the 
depletion of, each strategic marine mammal stock that interacts with 
Category I or II fisheries. Category I fisheries are fisheries that 
have frequent incidental mortality and serious injury of marine 
mammals, and Category II fisheries are fisheries that have occasional 
incidental mortality and serious injury of marine mammals. The MMPA 
also provides NMFS discretion to develop and implement a take reduction 
plan for any other marine mammal stocks that interact with a Category I 
fishery, which the agency determines, after notice and opportunity for 
public comment, has a high level of mortality and serious injury across 
a number of such marine mammal stocks.
    The MMPA defines a strategic stock as a marine mammal stock: (1) 
For which the level of direct human-caused mortality exceeds the 
potential biological removal (PBR) level; (2) which, based on the best 
available scientific information, is declining and is likely to be 
listed as a threatened species under the Endangered Species Act (ESA) 
in the foreseeable future; or (3) which is listed as threatened or 
endangered under the ESA, or is designated as a depleted species under 
the MMPA (16 U.S.C. 1362(19)). The PBR level is the maximum number of 
animals, not including natural mortalities, which can be removed 
annually from a stock, while allowing that stock to reach or maintain 
its optimum sustainable population level (50 CFR 229.2).
    In accordance with section 118(f) of the MMPA (16 U.S.C 1387), the 
immediate goal of a take reduction plan is to reduce, within six months 
of its implementation, the incidental mortality or serious injury of 
marine mammals taken in the course of commercial fishing operations to 
levels less than the PBR level for the stock. The long-term goal of a 
take reduction plan is to reduce, within 5 years of its implementation, 
the incidental mortality or serious injury of marine mammals taken in 
the course of commercial fishing to insignificant levels approaching a 
zero mortality and serious injury rate (i.e., insignificance threshold 
or zero mortality rate goal), which is 10 percent of the PBR level for 
a marine mammal stock (69 FR 43338, July 20, 2004). The long-term goal 
takes into account the economics of the fishery, the availability of 
existing technology, and existing state or regional fishery management 
plans. The MMPA also requires NMFS to amend take reduction plans and 
implementing regulations as needed to meet these requirements and 
goals.

History of the PLTRT

    The impetus for the PLTRP was a 2003 settlement agreement between 
NMFS and the Center for Biological Diversity that required convening a 
Take Reduction Team (the PLTRT or the Team) under the MMPA by June 30, 
2005, to address mortality and serious injury of Western North Atlantic 
pilot whales (Globicephala spp.) and common dolphins (Delphinus delphis 
delphis) in the Atlantic pelagic longline fishery, which was then, and 
currently still is, listed as a Category I fishery. At the time of the 
settlement agreement, the western North Atlantic stocks of these 
species were identified as strategic stocks.
    However, as the Plan was being developed, long-finned pilot whales 
(Globicephala melas melas) and short-finned pilot whales (Globicephala 
macrorhynchus) and common dolphins were all reclassified as non-
strategic stocks (Waring et al. 2006). Because incidental mortality and 
serious injury of short-finned and long-finned pilot whales in the 
Atlantic pelagic longline fishery continued to exceed the 
insignificance threshold (although not the PBR level) for the stocks, 
these species were included under the PLTRP. Common dolphins, even 
though included in the settlement agreement, were not considered in the 
PLTRP because there had been no recent observed mortalities or serious 
injuries. Risso's dolphins, on the other hand, were considered within 
the scope of the PLTRP, even though the species was not included in the 
settlement agreement and was not a strategic stock at the time, because 
mortalities and serious injuries incidental to the Atlantic pelagic 
longline fishery exceeded the insignificance threshold (although not 
the PBR level) for the stock, similar to short-finned and long-finned 
pilot whales.
    In accordance with the MMPA and the settlement agreement, NMFS 
convened the PLTRT in June 2005. NMFS announced the establishment of 
the PLTRT on June 22, 2005, in the Federal Register (70 FR 36120). NMFS 
selected team members according to guidance provided in section 
118(f)(6)(C) of the MMPA. Members of the PLTRT include commercial 
fishermen and representatives of the Atlantic Pelagic Longline Fishing 
industry, environmental groups, marine mammal biologists, fisheries 
biologists, and representatives of the Mid-Atlantic Fishery Management 
Council, the Marine Mammal Commission, and NMFS.
    The incidental mortality and serious injury for both pilot whales 
and Risso's dolphins exceeded the insignificance threshold, yet 
remained below the PBR level, and were considered non-strategic stocks 
that interact with a Category I fishery. Therefore, in accordance with 
the long-term goal of section 118(f)(2) of the MMPA, NMFS directed the 
PLTRT to develop and submit a draft Take Reduction Plan to the agency 
within 11 months that focused on reducing incidental mortalities and 
serious injuries of pilot whales and Risso's dolphins to a level 
approaching the insignificance threshold within five years of 
implementation of the Plan.
    Four professionally-facilitated meetings and two full-team 
conference calls were held between June 2005 and May 2006. The PLTRT 
reached consensus at the May 2006 meeting, and on June 8, 2006, 
submitted to NMFS a Draft PLTRP, including recommendations for take 
reduction measures, as well as research needs and other non-regulatory 
measures (PLTRT, 2006). Based on the Draft PLTRP, NMFS published a 
proposed rule (73 FR 35623, June 24, 2008) and a final rule (74 FR 
23349, May 19, 2009) implementing the PLTRP, which became effective on 
June 18, 2009 (50 CFR 229.36). Since implementation of the PLTRP, the 
Team has continued to monitor the effectiveness of the Plan and review 
recent research relevant to the PLTRT and new scientific information on 
updated estimates of abundance and mortality and serious injury for 
pilot whales and Risso's dolphins.

Western North Atlantic Pilot Whales

    The distribution of the western North Atlantic stock of short-
finned pilot whale overlaps in some areas with that of the western 
North Atlantic long-

[[Page 81170]]

finned pilot whale stock. The area of overlap between the western North 
Atlantic stocks of short-finned and long-finned pilot whales occurs 
primarily along the shelf break between 38[deg]N and 40[deg]N latitude 
(Garrison and Rosel 2017). The full latitudinal range of each species 
remains uncertain; however, south of Cape Hatteras, NC, most pilot 
whale sightings are expected to be short-finned pilot whales, while 
north of ~42[deg]N most pilot whale sightings are expected to be long-
finned pilot whales (Garrison and Rosel 2017). Additionally, these 
species are difficult to differentiate at sea and cannot be reliably 
visually identified during either abundance surveys or observations of 
fishery mortality without high-quality photographs (Rone and Pace 
2012). Therefore, the ability to separately assess the two species in 
U.S. Atlantic waters is complex and requires additional information on 
seasonal spatial distribution (Hayes et al. 2019).
    All estimated mortalities and serious injuries of pilot whales 
incidental to the Atlantic pelagic longline fishery from 2010 to 2013 
were assigned exclusively to short-finned pilot whales (Hayes et al. 
2019). From 2014 to 2016, pilot whale estimated mortalities and serious 
injuries incidental to the Atlantic pelagic longline fishery were 
apportioned between the short-finned and long-finned pilot whale stocks 
according to a logistic regression model (Garrison and Rosel 2017). 
Short-finned pilot whales made up the majority of the apportioned 
estimated mortality and serious injury, with only 1 percent and 4 
percent of the estimated mortalities and serious injuries between 2014 
and 2016 being apportioned to long-finned pilot whales (Hayes et al. 
2019).
    The minimum population estimate for short-finned pilot whales in 
the western North Atlantic is 23,637 (Hayes et al. 2019). Based on the 
years 2012 through 2016, the short-finned pilot whale PBR level was 236 
and the estimated mean annual mortality and serious injury incidental 
to pelagic longline fishing was 168 short-finned pilot whales 
(Coefficient of Variation, or CV=0.13; Hayes et al., 2019). Thus, the 
average annual mortality and serious injury of the western North 
Atlantic stock of short-finned pilot whales incidental to the Atlantic 
pelagic longline fishery is approaching the PBR level (71 percent of 
the PBR level).
    The minimum population estimate for long-finned pilot whales in the 
western North Atlantic is 3,464 (Hayes et al. 2019). Based on the years 
2012 through 2016, the long-finned pilot whale PBR level was 35 and the 
estimated mean annual mortality and serious injury incidental to 
pelagic longline fishing was 2.6 long-finned pilot whales (CV=0.34; 
Hayes et al. 2019). Thus, the average annual mortality and serious 
injury of the western North Atlantic stock of long-finned pilot whales 
incidental to the Atlantic pelagic longline fishery is 7.4 percent of 
the PBR level, which is below the insignificance threshold of 10 
percent of the PBR level.

Western North Atlantic Risso's Dolphins

    Risso's dolphins occur worldwide in warm temperate and tropical 
waters, and in the Northwest Atlantic occur from Florida to eastern 
Newfoundland and in general, in the U.S. Atlantic EEZ, the population 
occupies the mid-Atlantic continental shelf edge year round, and is 
rarely seen in the Gulf of Maine (Hayes et al. 2019). The minimum 
population estimate for the western North Atlantic stock of Risso's 
dolphin is 12,619 (Hayes et al., 2019). Based on the years 2012 through 
2016, the Risso's dolphin PBR level for the western North Atlantic 
stock was 126 and average annual mortality and serious injury 
incidental to pelagic longline fishing was 9.8 (CV=0.41; Hayes et al., 
2019). Thus, the average annual mortality and serious injury of the 
western North Atlantic stock of Risso's dolphins incidental to the 
Atlantic pelagic longline fishery is 7.8 percent of the PBR level, 
which is below the insignificance threshold of 10 percent of the PBR 
level.

Removing Long-Finned Pilot Whales and Risso's Dolphins From the PLTRP 
Scope

    At the time the PLTRT was established (70 FR 36120; June 22, 2005) 
both long-finned and short-finned pilot whales were included in the 
Plan because the abundance estimate was combined for both species and 
separate mortality and serious injury estimates incidental to the 
Atlantic pelagic longline fishery were unknown. However, since the 
Plan's implementation, abundance estimates for each species have been 
developed (Waring et al., 2011). Additionally, mortality and serious 
injury estimates for the two species incidental to the Atlantic pelagic 
longline fishery have been calculated (Waring et al., 2014). More 
recent information has revealed that the long-finned pilot whale's 
mortality and serious injury incidental to the Atlantic pelagic 
longline fishery (Hayes et al. 2019) has been below that stock's 
insignificance threshold. Therefore, although the initial PLTRP 
addressed both short-finned and long-finned pilot whales, NMFS is 
proposing to remove long-finned pilot whales from consideration under 
the Plan.
    Similarly, the Team originally expanded the scope of the PLTRP to 
include Risso's dolphins because the estimated mortality and serious 
injury levels were exceeding the insignificance threshold for the stock 
(PLTRP, 2006). Since the Plan was implemented in 2009, the level of 
mortality and serious injury for Risso's dolphins incidental to the 
Atlantic pelagic longline fishery has been below the stock's 
insignificance threshold. Therefore, NMFS is proposing to remove 
Risso's dolphin from consideration under the PLTRP.

Amending the PLTRP

    Since implementation of the PLTRP in June 2009, NMFS convened two 
professionally-facilitated in-person meetings (August 2012 and December 
2015) and six webinars/conference calls (September 2010, June 2014, 
March 2015, September 2016, October 2016, and September 2019) of the 
PLTRT. During the 2015 in-person meeting of the Team, best available 
data indicated that the Atlantic pelagic longline fishery had exceeded 
the insignificance threshold for the incidental takes of short-finned 
pilot whales since the implementation of the Plan and was expected to 
continue to exceed the insignificance threshold indicating that the 
PLTRP had not been effective in meeting the long-term goal of section 
118(f)(2) of the MMPA (i.e., to reduce incidental mortalities and 
serious injuries of short-finned pilot whales to a level approaching 
the stock's insignificance threshold). As a result, the Team developed 
a suite of consensus non-regulatory and regulatory recommendations to 
amend the Plan (PLTRP, 2015; PLTRP, 2016). For more details on these 
recommended measures, please see the ADDRESSES section for where to 
request the December 2015, September 2016, and October 2016 meeting 
summaries.

Compliance and Enforcement Monitoring

    The PLTRP Monitoring Strategy (NMFS, 2013) is a comprehensive plan 
that describes the methods for monitoring regulatory compliance and the 
effectiveness of the PLTRP. Compliance monitoring includes enforcement 
activities, research, collection of observer data, evaluation of self-
reported fishing information, and education and outreach efforts. 
Effectiveness monitoring examines whether the long-term statutory goals 
described in the MMPA (i.e., to reduce incidental mortalities and 
serious

[[Page 81171]]

injuries of short-finned pilot whales to a level approaching the 
stock's insignificance threshold) are being achieved. NMFS intends to 
update the monitoring strategy to reflect the new regulatory and non-
regulatory components of the PLTRP.

Proposed Non-Regulatory Changes to the PLTRP

    The non-regulatory changes to the PLTRP recommended by the PLTRT 
that NMFS proposes to implement include:
    1. Convene a safe handling and release work group to develop 
potential updates to the current safe handling and release protocols 
for marine mammal interactions in the Atlantic pelagic longline 
fishery. The work group would include PLTRT members, commercial 
fishermen, marine mammal health and disentanglement experts, and others 
with expertise and knowledge related to handling marine mammals and/or 
pelagic longline fishing practices.
    2. Update observer protocols and fishery observer forms to increase 
information collected from marine mammal interaction and depredation 
events in the Atlantic pelagic longline fishery.

Proposed Regulatory Changes to the PLTRP

    Although not currently exceeding the PBR level, estimated mean 
annual mortality and serious injury of short-finned pilot whales 
incidental to the Atlantic pelagic longline fishery remains high at 
roughly 71 percent of the PBR level (Hayes et al. 2019). Consequently, 
mortality and serious injury of short-finned pilot whales incidental to 
the Atlantic pelagic longline fishery remains above the insignificance 
threshold of 10 percent of the PBR level, and the long-term goal of the 
PLTRP is not being met. Therefore, NMFS proposes to implement the 
PLTRT's December 2015 and October 2016 consensus recommendations to 
amend the regulations for the Atlantic pelagic longline fishery. NMFS 
believes these measures are necessary to remove ineffective regulations 
and to implement new regulations to reduce mortality and serious injury 
of the western North Atlantic stock of short-finned pilot whales 
incidental to the Atlantic pelagic longline fishery. The implementing 
regulations for the PLTRP are at 50 CFR 229.36, and related definitions 
are at 50 CFR 229.2.
    The regulatory changes recommended by the PLTRT that NMFS proposes 
to implement include:
    1. Remove the Cape Hatteras Special Research Area, along with the 
special observer and research participation requirements for fishermen 
operating in that area (50 CFR 229.36(d)).
    When the Plan was developed, the area just north of Cape Hatteras, 
which became the Cape Hatteras Special Research Area (CHSRA), was a 
``hot-spot'' for pilot whale interactions (PLTRT, 2006). Because of 
this, the Team thought that it was an important area for research on 
both pilot whale spatial distribution and interactions with the pelagic 
longline fishery. Based on the Team's recommendations, NMFS created the 
CHSRA and its special observer and research participation requirements 
for fishermen operating in that area with the goal of encouraging 
partnerships between fishermen and researchers in that area. However, 
NMFS has not used the special observer and research participation 
requirements to place an observer on a vessel in the CHSRA since the 
regulations were implemented. Instead, researchers and fishermen have 
partnered independent of the regulations for research in that area. 
Thus, the Team recommended that NMFS remove the CHSRA, and the 
associated special observer and research participation requirement, 
which also requires vessels to provide at least 48 hours advance notice 
before fishing with pelagic longline gear in that area, because it is 
no longer needed (PLTRT, 2015).
    2. Modify the current 20 nm mainline length restrictions at 50 CFR 
229.36(e) so that vessels in the EEZ portion of the Mid-Atlantic Bight 
may set no more than one mainline set in the water at any one time, not 
to exceed 32 nm (59.26 km). There may be no more than 30 nm (55.56 km) 
total of active gear (gear with leaders or hooks) deployed along the 
mainline set. A single length of active gear may not exceed 20 nm 
(37.04 km) and must be separated from other active gear along the 
mainline set by a gap without leaders or hooks (i.e., hookless line 
``interrupt'') of at least one nm (1.85 km).
    The 20 nm mainline length restriction in the EEZ portion of the 
Mid-Atlantic Bight was originally developed because, at the time, data 
suggested that pilot whale interaction rates were twice as high in 
pelagic longline sets with total mainline lengths greater than 20 nm 
than for pelagic longline sets with total mainline lengths less than 20 
nm. Operators of individual fishing vessels are allowed to fish 
multiple mainline sets at one time to ``compensate'' for the reduction 
of hooks due to the reduced maximum mainline length of 20 nautical 
miles (PLTRT, 2006). NMFS initially presumed, based on Team 
discussions, that there would be minimal compensation by fishing 
vessels (less than 50 percent); however, beginning in 2013, fishing 
vessels in the Mid-Atlantic Bight shifted from setting mostly single 
mainline sets to also setting sets with multiple mainline (hereinafter 
also referred to as ``multi-sets'') (PLTRT, 2015). From 1992 to 2012, 
multiple mainlines set as part of a multi-set represented 1 percent of 
all mainlines observed on pelagic longline fishing vessels in the Mid-
Atlantic Bight, but increased to 47 percent from 2013 to 2015 (PLTRT, 
2015). A multi-set was defined, for analytical purposes, as a pelagic 
longline set with two mainlines, where the second mainline begins 
setting 30 minutes or less after the first mainline has finished 
setting. Analyses showed that the rate of pilot whales interactions 
were higher in multi-sets compared to single mainline sets and that 
pelagic longline multi-sets had longer soak durations than a similar 
length single mainline set (PLTRT, 2015). In light of this information, 
the Team recommended that NMFS increase the maximum mainline length 
from 20 nm to 32 nm, but limit vessels to a single mainline set and 
only 30 nm of active gear (mainline with leaders or hooks attached) in 
an effort to limit the total length of active gear in the water and 
reduce soak duration by eliminating the time it takes to set and haul 
the second mainline associated with multi-sets (PLTRT, 2016). 
Additionally, the Team recommended a new measure--the hookless line 
``interrupt''--a gap along the single mainline set of at least 1 nm 
with no active gear, which the Team believed had the potential to 
reduce mortalities and serious injuries of marine mammals (PLTRT, 
2016).
    3. Implement terminal gear requirements for the EEZ portion of the 
Florida East Coast, South Atlantic Bight, Mid-Atlantic Bight, and 
Northeast Coastal fishing areas with the goal of making the hooks the 
weakest part of the terminal gear. These terminal gear requirements 
include requirements for circle hooks with a round wire diameter not to 
exceed 4.05mm if 16/0 and 4.40mm if 18/0 and a straightening force not 
to exceed 300 lb, and a minimum diameter of 1.8 mm and a breaking 
strength of at least 300 lb for monofilament leaders and branch lines 
(i.e., gangions).
    Though not included in the original plan, the Team recommended that 
NMFS implement terminal gear requirements in order to enable hooks to 
straighten before leaders break, because interactions with marine 
mammals are less likely to result in a serious injury when straightened 
hooks are returned from a hooking event (NMFS, 2014). If the gangions 
(i.e., leaders and branch

[[Page 81172]]

lines) are strong relative to the hook strength during a marine mammal 
hooking or entanglement, tension could be placed on the line (without 
the line breaking) to allow the hook to straighten, or the animal could 
be brought close to the vessel for disentanglement and/or dehooking 
attempts. Therefore, by limiting wire diameter and the straightening 
force of hooks, and increasing gangion size and strength, the proposed 
regulation aims to reduce line breaks and, in the event of lines 
breaks, increase the likelihood that the hook would straighten 
beforehand, thereby avoiding serious injury.

Public Comments Solicited

    NMFS is soliciting comments on this proposed rule. Specifically, 
because the intention behind implementing the terminal gear 
requirements is to ensure that a hook caught on a short-finned pilot 
whale will straighten before the gangion breaks, NMFS is requesting 
comments regarding whether the proposed strength for gangions (at least 
300 lb, based on manufacturer specifications when new) is sufficient 
for ensuring that the proposed hooks (with a straightening force not to 
exceed 300 lb based on manufacturer's specifications when new and a 
diameter not to exceed 4.05 mm if 16/0 or 4.4 mm if 18/0) will 
straighten before the gangion breaks. NMFS will consider these comments 
and the need to make changes in the final rule. Additionally, NMFS will 
be considering a delayed implementation of the proposed terminal gear 
requirements. Therefore, NMFS is also requesting comments concerning 
the length of time necessary for hook manufacturers to produce and 
supply hooks that meet the new specifications as well as the length of 
time the industry would need to implement the use of hooks and gangions 
that meet new specifications in the fishery.
    Lastly, the proposed rule defines four fishing areas: Northeast 
Coast (NEC), Mid-Atlantic Bight (MAB), South Atlantic Bight (SAB), and 
Florida East Coast (FEC). The proposed definitions are modeled after an 
existing regulatory definition of the MAB in the Atlantic Highly 
Migratory Species regulations, 50 CFR 635.2. NMFS is seeking comment on 
whether it would be helpful to the regulated community to further 
clarify these definitions in the final rule by providing more specific 
references to the latitude and longitude coordinates reflected on the 
charts in the draft Environmental Assessment. NMFS is not proposing 
changing the geographic areas, but is requesting comments regarding the 
clarity of the manner in which the areas are defined as well as the 
consistency of the definitions.

Classifications

    A draft Environmental Assessment has been prepared, analyzing the 
impacts on the human environment that would result from this action and 
determining that the action will not have significant environmental 
impacts upon implementation of the action.
    Pursuant to section 307 of the Coastal Zone Management Act, NMFS 
has determined that this proposed rule is consistent with the 
enforceable policies of the approved coastal management programs of 
Florida, Georgia, South Carolina, North Carolina, Virginia, Maryland, 
Delaware, New Jersey, New York, Connecticut, Rhode Island, New 
Hampshire, Massachusetts, and Maine. This determination has been 
submitted for review by the responsible state agencies under section 
307 of the Coastal Zone Management Act.
    This proposed rule does not contain policies with federalism 
implications under Executive Order 13132. The proposed rule would apply 
in the Exclusive Economic Zone beyond state jurisdiction.
    This proposed rule does not contain any new collection-of-
information requirements for the purposes of the Paperwork Reduction 
Act.
    This rule has been determined to be not significant for purposes of 
Executive Order 12866. This proposed rule is not expected to be an E.O. 
13771 regulatory action because this proposed rule is not significant 
under E.O. 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for this certification is as follows.
    This rulemaking would directly apply to commercial fishing 
businesses (NAICS 11411) that operate vessels that use pelagic longline 
gear to harvest Atlantic HMS species within four specific areas of the 
EEZ. Any business with a vessel that uses pelagic longline to harvest 
tuna or swordfish must have an Atlantic tuna longline permit, a shark 
(directed or incidental) permit, and a swordfish (directed or 
incidental) permit.
    The number of Category I Atlantic Ocean, Caribbean, Gulf of Mexico 
large pelagic longline fishery vessels in the Gulf of Mexico and the 
Atlantic, with annual landings of HMS is substantially less than the 
number of vessels permitted to do so. In 2016, 85 (33.7 percent) of 252 
pelagic longline vessels were active, and in 2017, 88 (34.8 percent) of 
253 pelagic longline vessels were active. This analysis uses the 2017 
figure of 88 active vessels, which can be found in the Regulatory 
Flexibility Analysis done for Amendment 11 to the 2006 Consolidated 
Highly Migratory Fishery Management Plan. NMFS estimates that 76 
businesses operate the 88 active vessels.
    For Regulatory Flexibility Act purposes only, NMFS has established 
a small business size standard for businesses, including their 
affiliated operations, whose primary industry is commercial fishing 
(see 50 CFR 200.2). A business primarily engaged in commercial fishing 
is classified as a small business if it is independently owned and 
operated, is not dominant in its field of operation (including its 
affiliates), and has combined annual receipts not in excess of $11 
million for all its affiliated operations worldwide. The maximum annual 
revenue for any pelagic longline vessel between 2006 and 2016 was less 
than $1.9 million, well below the $11 million small business size 
standard for commercial fishing businesses established by NMFS. 
Therefore, 76 small commercial fishing businesses operate the 88 
pelagic longline fishing vessels that could be directly affected by the 
rulemaking.
    Currently, a pelagic longline fishing vessel cannot fish in the 
CHSRA if it does not or cannot accommodate an observer assigned under 
the special observer requirements (50 CFR 229.36(d)). Additionally, 
fishermen must call NMFS SEFSC at least 48 hours (and no more than 96 
hours) prior to embarking on their fishing trip to provide sufficient 
notice and time to arrange for special observers, who may conduct 
scientific research aboard the fishing vessel. If upon calling in, the 
vessel is assigned an observer, it must take the observer during that 
fishing trip. If the vessel does not take the observer, it is 
prohibited from deploying or fishing with pelagic longline gear in the 
CHSRA for that trip. The proposed rule removes the CHSRA and its 
associated special observer and research participation requirements, 
including the advance notice requirements, which would give the small 
commercial fishing businesses flexibility to fish in those waters at 
times more effective for them. Therefore, the removal of the CHSRA is 
expected to have no adverse, and slightly beneficial, economic impacts 
on any of the small businesses that operate the 88 pelagic longline 
fishing vessels.

[[Page 81173]]

    Operators of Atlantic pelagic longline fishing vessels are 
currently allowed to deploy sets with multiple mainlines at one time, 
but each mainline length must not exceed 20 nm (37.04 km) in the EEZ 
portion of the MAB (50 CFR 229.36(e). That has allowed pelagic longline 
fishing vessels to use longer lengths of active gear (leaders and hooks 
in the water) across sets with multiple mainlines. Consequently, there 
have been pelagic longline fishing vessels deploying pelagic longline 
fishing sets with two mainline and more than 20 nm of active gear. The 
proposed rule would, in the MAB, prohibit pelagic longline sets with 
more than one mainline in the water at a time. It would also increase 
both the maximum length of a single mainline set from 20 nm (37.04 km) 
to 32 nm (59.26 km) and maximum length of active gear from 20 nm (37.04 
km) to 30 nm (55.56 km), but require that any active gear in excess of 
20 nm (37.04 km) be separated from other active gear by a gap of at 
least 1 nm with no active gear. The proposed rule is expected to have 
an adverse impact on 101 reported multiple mainline sets deployed in 
the MAB by reducing the length of active gear by 4 nm per mainline set 
(because these mainline sets are currently deployed two at a time and 
collectively have more than 30 nm of active gear). The combined 404 nm 
reduction represents a reduction of total active gear in the MAB by 1.4 
percent. If there is a one-to-one correspondence between the length of 
active gear and dockside revenue from HMS harvested by that gear, there 
would be a corresponding 1.4 percent decrease in dockside revenue 
annually from HMS harvested within the MAB. When mainline sets and 
landings from outside the MAB are included, that percentage declines 
significantly. The proposed rule would also affect 1,200 reported 
single mainline sets deployed in the MAB by increasing the active gear 
from 1 nm up to a maximum of 10 nm per mainline set. Those increases 
would result in an increase in total active gear deployed in the MAB by 
those 1,200 reported single mainline sets ranging from 180 to 1,800 nm, 
and those increases represent a range from 0.6 percent to 6.2 percent 
of total annual active gear deployed in the MAB, and potentially 0.6 
percent to 6.2 percent increases in dockside revenue from HMS landed 
from the pelagic longline sets. When all 1,573 average reported pelagic 
longline sets in the MAB are combined, the proposed rule would result 
in a change in the amount of active gear deployed in the MAB by the 88 
pelagic longline fishing vessels ranging from a reduction of 0.7 
percent to a gain of 4.8 percent. When pelagic longline sets and active 
gear deployed outside the MAB by these vessels are included in the 
total from all areas, these percentages decline significantly.
    The proposed rule would implement terminal gear requirements for 
leaders and hooks designed to make the hook the weakest part of the 
terminal gear in the EEZ portion of the FEC, MAB, NEC, and SAB areas. 
Hooks used in these areas would be required to meet the following 
criteria: To (i) 16/0 or 18/0 circle hooks with hook shanks containing 
round wire that can be measured with a caliper or other appropriate 
gauge, with a wire diameter not to exceed 4.05 mm if 16/0 or 4.4 mm if 
18/0; and (ii) a straightening force not to exceed 300 lb, based on 
manufacturer's specifications. The proposed action would affect the 
small businesses with pelagic longline fishing vessels that presently 
use hooks in the FEC, MAB, NEC and SAB that do not meet the additional 
specifications. Currently manufactured hooks that meet the additional 
specifications include the Mustad 39960D 16/0, Mustad 39988D 16/0, and 
Eagle-Claw L2048LM 16/0. NMFS assumes that none of the sets deployed in 
the four areas use hooks that meet the proposed criteria, although 25 
percent or more may be a more likely figure. The price of a box or pack 
of 1,000 of the new hooks is estimated to range from $450 to $550 per 
box and is expected to be, on average, $20 to $25 more than a box of 
1,000 of the currently used hooks. The average number of hooks per set 
in each of the four areas (FEC, MAB, NEC, and SAB) is much less than 
1,000: 671 (FEC), 622 (MAB), 905 (NEC), and 808 (SAB). Thus, NMFS 
expects that one box of hooks is sufficient to equip a pelagic longline 
fishing vessel for its first trip with the new hooks. The combined 
additional annual cost to 88 pelagic longline fishing vessels would be 
$1,760 to $2,200 (2018 $) for the first boxes of new hooks. Hooks are 
lost or damaged during a trip and need replacement. NMFS estimates that 
the difference in the costs of replacing the new hooks versus replacing 
the currently used hooks is approximately equivalent to the cost of 
purchasing a box of the new hooks every sixth to seventh trip, which is 
$20 to $25 (2018 $) more per sixth or seventh trip. An annual average 
of 937 trips are made in the combined areas, and NMFS estimates that 
each of the 88 pelagic longline fishing vessels makes 10 to 11 trips in 
the areas annually. Hence, the average pelagic longline fishing vessel 
has to buy an additional two boxes to replace hooks that are lost or 
damaged a year. The component of the proposed rule to require hooks 
meeting new specifications is expected to result in increased annual 
costs ranging from 0.07 percent to 0.09 percent per vessel.
    Currently, pelagic longline fishing vessels that fish in the EEZ 
portion of the FEC, MAB, NEC and SAB can use monofilament nylon leaders 
of unspecified diameters, which can result in leaders being the weakest 
component of active gear. The proposed rule would require the pelagic 
longline fishing vessels in the EEZ portion of the FEC, MAB, NEC and 
SAB to use monofilament nylon leaders and/or branch lines that all have 
a diameter of 1.8 mm or larger (certified by the manufacturer to at 
least 300 lb test strength when new) in those areas. No other line 
material could be used, but crimps and chafing gear would be allowed. 
NMFS expects that almost all to all of the pelagic longline fishing 
vessels that fish in the four areas use monofilament nylon leaders with 
diameters and a breaking force of at least 300 lb. Consequently, this 
component of the proposed rule is expected to have little to no 
additional economic effects.
    In summary, an estimated 88 pelagic longline fishing vessels owned 
by 76 small businesses would be directly affected by this proposed 
rule, and they represent approximately 36 percent of the 248 permitted 
vessels and 214 small businesses in the pelagic longline fleet. The 
elimination of the CHSRA and associated requirements and the 
monofilament leader and/or branch line requirement, combined, are 
expected to have little to no additional economic impacts. The changes 
to mainline length restrictions would cause a change in the amount of 
active gear deployed within the MAB ranging from a 0.7 percent decrease 
to a 4.8 percent increase. Assuming a constant one-to-one 
correspondence between the length of active gear and dockside revenue, 
a corresponding change in dockside revenue from HMS harvested from the 
MAB would range from a 0.7 percent reduction to a 4.8 percent increase. 
When dockside revenues from HMS harvested from outside the MAB are 
included, however, the percentages of the net reduction or net gain 
decline significantly. Implementing the hook requirements could 
increase the annual hook cost of 88 pelagic longline vessels that fish 
in the FEC, MAB, NEC, and SAB by $60 to $75 per vessel, which 
represents from 0.07 percent to 0.08 percent of annual trip costs. 
Combined, the actions are expected to have a net benefit for the 
affected small businesses.

[[Page 81174]]

Therefore, the proposed rule would not have a significant economic 
impact on a substantial number of small entities.

References

    A complete list of all references cited in this proposed rule, 
along with other supporting documents can be found in the Federal 
eRulemaking Portal at www.regulations.gov/#!docketDetail;D=NOAA-NMFS-
2016-0105 and is available upon request from the NMFS Southeast 
Regional Office in St. Petersburg, FL (see ADDRESSES).

List of Subjects in 50 CFR Part 229

    Administrative practice and procedure; Fisheries; Marine mammals; 
Pelagic Longline.

    Dated: November 23, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NOAA proposes to amend 50 
CFR part 229 as follows:

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE 
MAMMAL PROTECTION ACT OF 1972

0
1. The authority citation for part 229 continues to read as follows:

    Authority:  16 U.S.C. 1361 et seq.

0
2. In Sec.  229.3, revise paragraph (t)(2) and paragraph (u) to read as 
follows:


Sec.  229.3   Prohibitions.

* * * * *
    (t) * * *
    (2) Complies with the requirements specified in Sec.  229.36(d) and 
(e).
    (u) It is prohibited to deploy or fish with pelagic longline gear 
in the Northeast Coastal, South Atlantic Bight, or Florida East Coast 
fishing areas unless the vessel:
    (1) Complies with the placard posting requirement specified in 
Sec.  229.36(c); and
    (2) Complies with the requirements specified in Sec.  229.36(d).
* * * * *
0
3. In Sec.  229.36:
0
a. Revise paragraph (a);
0
b. Revise paragraphs (b)(1) through (b)(4);
0
c. Add paragraph (b)(5);
0
d. Revise paragraphs (d) and (e).
    The additions and revisions read as follows:


Sec.  229.36   Atlantic Pelagic Longline Take Reduction Plan (PLTRP).

    (a) Purpose and scope. The purpose of this section is to implement 
the PLTRP to reduce incidental mortality and serious injury of short-
finned pilot whales in the Atlantic pelagic longline fishery off the 
U.S. East Coast, a component of the Atlantic Ocean, Caribbean, Gulf of 
Mexico large pelagics longline fishery. The requirements in this 
section apply to the owner or operator of any vessel that has been 
issued or is required to be issued an Atlantic HMS tunas, swordfish, or 
shark permit under Sec.  635.4 of this title and that has onboard 
pelagic longline gear as defined at Sec.  635.2 of this title in the 
EEZ (as defined in Sec.  600.10 of this title).
    (b) * * *
    (1) Northeast Coastal (NEC) means the area bounded by straight 
lines connecting the northeast states' internal waters extending 
between 71[deg] W long. and 60[deg] W long. and between 35[deg] N lat. 
and 45[deg] N lat. It also includes the box described by straight lines 
connecting 65[deg] W long. and 60[deg] W long. and between 45[deg] N 
lat. and 50[deg] N lat.
    (2) Mid-Atlantic Bight (MAB) means the area bounded by straight 
lines connecting the mid-Atlantic states' internal waters and extending 
to 71[deg] W long. Between 35[deg] N lat. and 43[deg] N lat.
    (3) South Atlantic Bight (SAB) means the area bounded by straight 
lines connecting the south-Atlantic states' internal waters and 
extending to 71[deg] W long. between 30[deg] N lat. and 35[deg] N lat.
    (4) Florida East Coast (FEC) means the area bounded by straight 
lines connecting Florida's internal waters and between 82[deg] W long. 
and 71[deg] W long. and between 22[deg] N lat. and 30[deg] N lat.
    (5) Active Gear means mainline in the water with gangions or hooks 
attached.
* * * * *
    (d) Hook and gangion requirements. Vessels operating in the EEZ (as 
defined in Sec.  600.10 of this title) portion of the NEC, MAB, SAB and 
FEC areas can only possess, use, and deploy hooks and gangions that 
meet the following specifications:
    (1) Hooks. The hook shank must be constructed of corrodible round 
wire stock that can be measured with a caliper or other appropriate 
gauge and meet the following specifications:
    (i) The round wire stock of a 16/0 circle hook must not exceed 4.05 
mm (0.159 in) in diameter and straighten with a force not to exceed 300 
lb, based on manufacturer specifications when new.
    (ii) The round wire stock of a 18/0 circle hook must not exceed 
4.40 mm (0.173 in) in diameter and straighten with a force not to 
exceed 300 lb, based on manufacturer specifications when new.
    (2) Gangions. Any gangion, as defined at 50 CFR 635.2, must meet 
all of the following specifications:
    (i) Made of monofilament nylon. No other line material (e.g., wire) 
may be used; however, crimps and chafing gear are allowed.
    (ii) Have a diameter of 1.8 mm or larger.
    (iii) Have a breaking strength of at least 300 lb, based on 
manufacturer specifications when new.
    (3) Exception for transit. If pelagic longline gear is 
appropriately stowed, a vessel may transit through the NEC, MAB, SAB, 
and FEC without meeting the gear requirements specified in this 
paragraph. For the purpose of this paragraph, transit means non-stop 
progression through an area without any fishing activity occurring. 
Longline gear is stowed appropriately if all gangions and hooks are 
disconnected from the mainline and are stowed on or below deck, hooks 
are not baited, and all buoys and weights are disconnected from the 
mainline and drum (buoys may remain on deck).
    (4) Exception for research. No person may possess, use, or deploy 
hooks other than what is described in this section unless they have a 
written letter of authorization on board from the Southeast Regional 
Administrator to conduct scientific or gear research for reducing the 
bycatch in the pelagic longline fishery. In order to obtain a written 
letter of authorization, the research must be consistent with the 
regulations at 50 CFR part 635 and be designed to advance the long-term 
goal of reducing mortalities and serious injuries of short-finned pilot 
whales in the Atlantic pelagic longline fishery to insignificant levels 
approaching a zero mortality and serious injury rate, or reduce the 
bycatch of other listed, threatened, or protected species in the 
Atlantic pelagic longline fishery.
    (e) Mainline gear restrictions. Vessels operating in the EEZ (as 
defined in Sec.  600.10 of this title) portion of the MAB may not 
deploy pelagic longline gear unless the gear meets the following 
mainline specifications:
    (1) There can only be one piece of mainline in the water at any 
time. If the gear breaks or parts after setting, the vessel owner or 
operator must make every effort to remove the additional portions of 
the gear as soon as possible.
    (2) Mainline length cannot exceed 32 nm.
    (3) There can be no more than 30 nm of active gear.
    (4) A section of active gear cannot exceed 20 nm.

[[Page 81175]]

    (5) Between any two parts of active gear, there must be a gap of at 
least 1 nm.

[FR Doc. 2020-26288 Filed 12-14-20; 8:45 am]
BILLING CODE 3510-22-P