![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
Atlantic Highly Migratory Species; Pelagic Longline Fishery; Shark Gillnet Fishery; Sea Turtle and Whale Protection Measures
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: April 10, 2002 (Volume 67, Number 69)]
[Proposed Rules]
[Page 17349-17353]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10ap02-21]
=======================================================================
-----------------------------------------------------------------------
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.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
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