Endangered Fish or Wildlife; Special Prohibitions; North Atlantic Right Whale Protection

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 222

Docket No. 971021250-7250-01; I.D. 092297E

RIN 0648-AK46

Endangered Fish or Wildlife; Special Prohibitions; North Atlantic

Right Whale Protection

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce

ACTION: Proposed rule; temporary closure of fishery.

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SUMMARY: NMFS proposes to close the Mid-Atlantic and Northeast Coastal

segments of the Atlantic pelagic drift gillnet fishery for swordfish,

tuna, and shark through July 31, 1998. The swordfish portion of the

Atlantic pelagic drift gillnet fishery has been closed since December

5, 1996, under an emergency Magnuson-Stevens Fishery Conservation and

Management Act closure which expires on November 26, 1997. This action

is necessary to avoid jeopardy to the continued existence of the

northern right whale (Eubalaena glacialis), a species listed as

endangered under the Endangered Species Act (ESA). The purpose of this

action is to continue the existing closure of the swordfish portion of

the Atlantic pelagic drift gillnet fishery and to close the tuna and

shark portions of the Atlantic pelagic drift gillnet fishery until

regulatory measures implementing one or more reasonable and prudent

alternatives necessary to avoid jeopardy to the continued existence of

the northern right whale are completed and implemented.

DATES: Written comments must be received on or before November 18,

1997.

ADDRESSES: Send comments to the Chief, Marine Mammal Division (F/PR2),

Office of Protected Resources (F/PR), NMFS, 1315 East West Highway,

Silver Spring, MD 20910-3282. Copies of the May 29, 1997, Biological

Opinion (BO), of the August 29, 1997, Amended BO, and, a draft

environmental assessment on the Atlantic Offshore Cetacean Take

Reduction Plan are available upon request from Gregory Silber, Ph.D.,

Marine Mammal Division, Office of Protected Resources, NMFS, 1315 East

West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Gregory Silber, Ph.D. or Michael

Payne, Office of Protected Resources, (F/PR2), NMFS, 1315 East West

Highway, Silver Spring, MD 20910, 310-713-2322; or by facsimile at 301-

713-0376.

SUPPLEMENTARY INFORMATION:

The Atlantic pelagic fishery (which includes the swordfish, tuna,

and shark drift gillnet fishery) is managed by NMFS under the authority

of the Magnuson-Stevens Fishery Conservation and Management Act

(Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.) and the Atlantic Tunas

Convention Act (16 U.S.C. 971 et seq.). Section 7(a)(2) of the ESA (16

U.S.C. 1531 et seq.) requires an agency to ensure that any action

proposed by a Federal agency is not likely to jeopardize the continued

existence of a threatened or endangered species. Due to new information

concerning the status of the northern right whale, NMFS re-initiated

consultation on the Atlantic pelagic fishery on September 25, 1996.

One right whale entanglement has been documented by a NMFS observer

in Atlantic pelagic drift gillnet gear. The potential exists for

further entanglements in this gear because the geographic distribution

of right whales overlaps with that of the Atlantic drift gillnet

fishery during part of the year. On December 5, 1996, NMFS published an

emergency closure pursuant to the Magnuson-Stevens Act closing the

drift gillnet fishery for swordfish in the Atlantic Ocean, including

the Gulf of Mexico and Caribbean Sea, from December 1, 1996, through

May 29, 1997 (61 FR 64486). In its December 5, 1996, notice, NMFS

announced that it had reinitiated consultation under the ESA for the

entire Atlantic pelagic fishery (which includes the drift gillnet

fishery for swordfish, tuna, and shark).

On May 29, 1997, NMFS issued a BO which concluded that continued

operation of the swordfish, tuna, and shark drift gillnet portions of

the Atlantic pelagic fishery was likely to jeopardize the continued

existence of the northern right whale. This BO identified two

reasonable and prudent alternatives for the use of drift gillnet gear

that would avoid the likelihood of jeopardy for the northern right

whale. The first alternative is to prohibit the use of drift gillnet

gear for the taking of pelagic swordfish, tuna, and shark. The second

alternative is to allow the restricted use of drift gillnet gear. Under

this alternative, drift gillnet fishing for swordfish, tuna, and shark

would take place under a limited entry system with 100 percent observer

coverage, time/area closures, and elimination of the derby nature of

the fishery during certain times of the year.

On June 5, 1997, pursuant to the Magnuson-Stevens Act, NMFS

extended the closure of the swordfish portion of fishery until November

26, 1997, or until a preferred option to avoid the likelihood of

jeopardy was identified and implemented (62 FR 30775).

Based on new information on the implementation of additional right

whale management measures, consultation under section 7 of the ESA was

again re-initiated on August 12, 1997. On August 29, 1997, NMFS issued

an amended BO identifying a third reasonable and prudent alternative to

avoid jeopardy to the northern right whale from the Atlantic pelagic

drift gillnet fishery. The reasonable and prudent alternative would be

100 percent observer coverage with expanded time/area closures. The BO

concluded that the distribution of right whales overlaps with that of

the swordfish component of the drift gillnet fishery from November 1

until July 31 and that closure of the fishery during that period is

likely to avoid jeopardy for northern right whales.

NMFS is now proposing to implement the time/area closure component

of the reasonable and prudent alternatives developed through this

consultation process. However, there is not sufficient time to

implement the alternatives identified in the BO under the Magnuson-

Stevens Act. As a result, NMFS is proposing to implement this measure

under the ESA on an temporary basis pending full implementation of the

reasonable and prudent alternative(s). This proposed temporary closure

would provide necessary protections to the northern right whale while

NMFS develops a long term fishery management solution in conformance

with alternatives identified in the BOs for this fishery.

The BO issued on August 29, 1997, requires that the driftnet

fishery for swordfish, shark, and tunas be prohibited from operating

from November 1 to July 31 to avoid jeopardy to the continued existence

of northern right whales. Although the final rule version of this

document will not become effective until late November, NMFS has

determined that the risk to right whales from drift gillnet gear from

November 1, 1997, to the effective date of this rule is remote for the

following

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reasons: (1) Swordfish - This proposed action would extend the existing

closure for swordfish, which expires on November 26, 1997, through July

31, 1998, thereby avoiding jeopardy for the swordfish component of the

drift gillnet fishery until the expiration date of the closure; and (2)

Tuna and sharks - Although the tuna and shark portions of the pelagic

drift gillnet fishery were not closed by the December 5, 1996,

emergency closure and subsequent extension, no directed drift gillnet

operations historically exist to target these species in pelagic waters

during the month of November, as evidenced by the lack of landings

records and the lack of requests for observer coverage required under

the Marine Mammal Protection Act (MMPA). In addition, the directed

fishery for large coastal sharks was closed on July 21, 1997, through

December 31, 1997, because that fishery has reached its allowable quota

(62 FR 32942, July 21, 1997). The directed gillnet fishery for small

coastal sharks during fall and winter generally occurs south of Cape

Hatteras along the Georgia and Florida coastal areas south to Sebastian

Inlet, Florida (approximately 27 deg.51' N latitude). This is a known

high-use area for northern right whales during winter and, as such, was

the focus of the Atlantic Large Whale Take Reduction Team established

under section 118 of the MMPA. The interim final rule implementing the

Atlantic Large Whale Take Reduction Plan (62 FR 39157, July 22, 1997)

closes the area to drift gillnet fishing from 32 deg.00' N latitude

(approximately Savannah, Georgia) south to 27 deg.51' N latitude from

November 1 to March 31.

This proposed rule would prohibit vessels operating in the North

Atlantic off the coast of the United States in waters south and east of

the 100 fathom contour from having on board, fishing with, or otherwise

possessing or controlling drift gillnet gear from November 1, 1997,

through July 31, 1998, except as authorized under 50 CFR 229.32

(regulations implementing the Atlantic Large Whale Take Reduction Plan

that allow for restricted drift gillnet operations targeting sharks in

the Southeast United States, 62 FR 39157, July 22, 1997).

NMFS has prepared a draft environmental assessment on the Atlantic

Offshore Cetacean Take Reduction Plan that considers several

alternatives for reducing the bycatch of marine mammals in the Mid-

Atlantic and Northeast segments of the pelagic drift gillnet and

longline fisheries for swordfish, tuna, and shark (see ADDRESSES).

Although this draft environmental assessment does not indicate a

preferred alternative for operation of these fisheries, it does include

an analysis of the impact of the proposed action to close the Mid-

Atlantic and Northeast segments of the pelagic drift gillnet fisheries

for swordfish, tuna, and shark. A final National Environmental

Protection Act document analyzing the proposed action will be available

to the public upon publication of a final rule.

Section 11(f) of the ESA provides the Secretary of Commerce with

broad rulemaking authority to enforce the ESA. Because the affected

fisheries may harm, harass, or otherwise ``take'' a right whale, this

rule is proposed to prevent this fishery from jeopardizing the

continued existence of the northern right whale and to prevent ``take''

of right whales prohibited by section 9(a) of the ESA. NMFS will

undertake additional management actions necessary to ensure that

conduct of the Atlantic pelagic drift gillnet fishery will not

jeopardize the continued existence of the northern right whale before

the expiration of this rule.

This action is not intended to place restrictions on coastal drift

gillnet or other gillnet fisheries in Mid-Atlantic or Northeast coastal

waters (as defined under 50 CFR 229.2), other than those placed on the

pelagic driftnet fisheries described in this document. These coastal

fisheries are believed to include fisheries targeting bonito, little

tunny, croaker, weakfish, shad, herring, striped bass, or bluefish.

NMFS requests comments on how to better define or characterize such

fisheries so that this and future rules regarding gear restrictions can

be specifically targeted to the fisheries for which management actions

are intended. Specifically, comments are requested on how best to

characterize the boundaries between coastal and pelagic fisheries and/

or the specific gear types (e.g., mesh size, net length) used in the

different fisheries. This request was previously made in a proposed

rule to define fisheries under the Marine Mammal Protection Act list of

fisheries (62 FR 28657, May 27, 1997). No comments have been received

to date with respect to this request.

Classification

This rule is necessary to enforce the requirements of the ESA.

NMFS has determined that this rule is not significant for purposes

of E.O. 12866.

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce has certified to the Chief Counsel for Advocacy

of the Small Business Administration that this rule, if adopted, will

not have a significant economic impact on a substantial number of small

entities as follows:

I certify that the attached proposed rule to close the Mid-

Atlantic and Northeast Coastal segments of the Atlantic drift

gillnet fisheries for swordfish, tuna, and shark through July 31,

1998, issued under authority of the Endangered Species Act, will not

have a significant economic impact on a substantial number of small

entities, as defined under the Regulatory Flexibility Act. Between

1987 and 1995, over 1,500 vessels were permitted to participate in

the swordfish fishery. Twelve to fifteen of these vessels use drift

gillnet gear primarily to target swordfish. All are also permitted

to take tuna and shark. All of the vessels fishing for swordfish,

tuna, and shark with drift gillnet gear are small entities.

Because NMFS has traditionally apportioned swordfish quota into

two semi-annual seasons, fishing effort in the swordfish fishery has

traditionally consisted of a summer and a winter season. However,

two Magnuson-Stevens Fishery Conservation and Management Act

closures have closed the swordfish component of this fishery since

December 1996. For 1998, consistent with the BO on the Atlantic

pelagic fishery, the proposed rule would prohibit the use of drift

gillnet gear during the winter season, and delay the summer season

until after July 31, 1998. NMFS has also taken a separate action to

apportion the 1998 swordfish quota into one fishing period. Thus

participants in this fishery would have the opportunity to fish for

the full annual quota during the period of non-closure.

Most pelagic drift gillnet fishing occurs during the summer when

swordfish are concentrated off the northeastern U.S. Based on

logbooks submitted to NMFS, typically only one vessel has

participated in the winter drift gillnet swordfish fishery.

Therefore, restricting fishing effort to the summer season should

not impact a substantial number of small entities and should result

in only minimal economic impacts. Prior to 1991, when drift

gillnetters were not restricted by a semi-annual quota, fishing

occurred as late as the fourth quarter (October, November, and

December). Therefore, delaying the start date of the fishery until

August 1, 1998, is not expected to significantly impact fishing

effort or landings.

This proposed rule would have no impact on drift gillnetters

directly fishing for sharks in the Southeast because participants in

the directed shark fishery are covered by regulations implementing the

Atlantic Large Whale Take Reduction Plan and would not be further

restricted by this proposed rule. In addition, the fishery for large

coastal sharks was closed on July 21, 1997, through December 31, 1997,

because that fishery has reached its allowable quota (62 FR 32942, July

21, 1997). Based on recent records and the lack of requests for

observer coverage as required under the Marine Mammal Protection Act,

there is no history of a

[[Page 59337]]

directed drift gillnet fishery for tunas in the winter and early

summer.

Accordingly, this proposed rule, if adopted, would not have a

significant economic impact on a substantial number of small entities.

As a result, no Initial Regulatory Flexibility Analysis has been

prepared.

This proposed rule would be implemented in a manner that is

consistent, to the maximum extent practicable, with the coastal zone

management programs of the Atlantic and Gulf of Mexico states that have

approved programs. This determination has been submitted for review by

the responsible agencies under section 307 of the Coastal Zone

Management Act.

This rule does not contain policies with federalism implications to

warrant preparation of a federalism assessment under Executive Order

12612. This proposed rule does not contain new collection-of-

information requirements subject to the Paperwork Reduction Act.

List of Subjects in 50 CFR Part 222

Administrative practice and procedure, Endangered and threatened

species, Exports, Imports, Reporting and recordkeeping requirements,

Transportation.

Dated: October 28, 1997.

David L. Evans,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set forth in the preamble, 50 CFR part 222 is

proposed to be amended as follows:

PART 222--ENDANGERED FISH OR WILDLIFE

1. The authority citation for part 222 continues to read as

follows:

Authority: 16 U.S.C. 1531-1543.

2. In subpart D, a new Sec. 222.34 is proposed to be added to read

as follows:

Subpart D--Special Prohibitions

Sec. 222.34 Restrictions on taking right whales incidental to fishery

operations.

During the period from November 1, 1997, through July 31, 1998, it

is unlawful for any person or vessel subject to the jurisdiction of the

United States to have on board a vessel, to fish with, or otherwise to

posses or control drift gillnet gear, as defined in 50 CFR 229.2, in

the North Atlantic Ocean in waters off the coast of the eastern United

States south and east of the 100 fathom contour except that such gear

may be used in southeast waters, as defined under 50 CFR 229.2, if that

gear is used in compliance with the requirements of 50 CFR 229.32(f).

[FR Doc. 97-29022 Filed 10-29-97; 1:14 pm]

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