Atlantic Highly Migratory Species; Pelagic Longline Management

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 99120-332-9332-01; I.D. 110499B]

RIN 0648-AM79

Atlantic Highly Migratory Species; Pelagic Longline Management

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 prohibit pelagic longline fishing at certain

times and in certain areas within the Exclusive Economic Zone of the

Atlantic Ocean off the coast of the Southeastern United States and in

the Gulf of Mexico. This proposed rule is necessary to address pelagic

longline bycatch and incidental catch of overfished and protected

species. The intent of the proposed action is to reduce that bycatch

and incidental catch by pelagic longline fishermen who target highly

migratory species (HMS).

DATES: Comments must be received at the appropriate address or fax

number (see ADDRESSES) no later than 5:00 p.m., eastern standard time,

on February 11, 2000. Public hearings on this proposed rule will be

held in January and February, 2000. 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

Rebecca Lent, Chief, HMS Division (SF/1), Office of Sustainable

Fisheries, NMFS, 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. For copies of

the draft Technical Memorandum and Supplemental Environmental Impact

Statement/Regulatory Impact Review/Initial Regulatory Flexibility

Analysis (DSEIS/RIR/IRFA), contact Jill Stevenson at 301-713-2347 or

write to Rebecca Lent.

ilver 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. For copies of

the draft Technical Memorandum and Supplemental Environmental Impact

Statement/Regulatory Impact Review/Initial Regulatory Flexibility

Analysis (DSEIS/RIR/IRFA), contact Jill Stevenson at 301-713-2347 or

write to Rebecca Lent.

FOR FURTHER INFORMATION CONTACT: Jill Stevenson at 301-713-2347, fax

301-713-1917, e-mail [email protected]; or Buck Sutter at 727-

570-5447, fax 727-570-5364, e-mail [email protected].

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). The Fishery Management Plan for Atlantic

Tunas, Swordfish, and Sharks (HMS FMP) is implemented by regulations at

50 CFR part 635. The Atlantic pelagic longline fishery is also subject

to the requirements of the Endangered Species Act (ESA), the Marine

Mammal Protection Act (MMPA), and the International Plan of Action for

Reducing the Incidental Catch of Seabirds in Longline Fisheries because

of documented interactions with sea turtles, marine mammals, and sea

birds.

Pelagic Longline Fishery

Pelagic longline gear is the dominant commercial fishing gear used

by U.S. fishermen in the Atlantic Ocean to target highly migratory

species. The gear consists of a mainline, often many miles in length,

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 preferentially yellowfin tuna, bigeye tuna,

or swordfish

ic Ocean to target highly migratory

species. The gear consists of a mainline, often many miles in length,

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 preferentially yellowfin tuna, bigeye tuna,

or swordfish.

Observer data and vessel logbooks indicate that pelagic longline

fishing for Atlantic swordfish and tunas results in catch of non-target

finfish species (including bluefin tuna, billfish, and undersized

swordfish) and protected species, including endangered sea turtles.

Also, this fishing gear incidentally hooks marine mammals and sea birds

during tuna and swordfish operations. The bycatch of animals that are

hooked but not retained due to economic or regulatory factors

contributes to overall fishing mortality. Such bycatch mortality may

significantly impair rebuilding of overfished finfish stocks or the

recovery of protected species.

Bycatch Reduction Strategy

Atlantic blue marlin, white marlin, sailfish, bluefin tuna, and

swordfish are considered overfished. In the HMS FMP and Amendment 1 to

the Atlantic Billfish FMP (Billfish Amendment), NMFS adopted a strategy

for rebuilding these stocks through international cooperation at the

International Commission for the Conservation of Atlantic Tunas

(ICCAT). This strategy primarily involves reducing fishing mortality

through the negotiation of country-specific catch quotas according to

rebuilding schedules. However, the

Amendment 1 to

the Atlantic Billfish FMP (Billfish Amendment), NMFS adopted a strategy

for rebuilding these stocks through international cooperation at the

International Commission for the Conservation of Atlantic Tunas

(ICCAT). This strategy primarily involves reducing fishing mortality

through the negotiation of country-specific catch quotas according to

rebuilding schedules. However, the

contribution of bycatch to total fishing mortality must be considered

in the HMS fisheries, and in fact, ICCAT catch quotas for some species

require that countries account for dead discards. The swordfish

rebuilding plan that was adopted by ICCAT at its 1999 meeting provides

added incentive for the United States to reduce swordfish discards.

Additionally, Magnuson-Stevens Act national standard 9 for fishery

management plans requires U.S. action to minimize bycatch and bycatch

mortality to the extent practicable.

In the draft HMS FMP and proposed regulations (64 FR 3154, January

20, 1999), NMFS proposed a time-area closure during July-September in

the Florida Straits to reduce the bycatch of undersized swordfish by

pelagic longline fishermen. The Florida Straits area was proposed for

closure primarily due to high discard rates of undersized swordfish,

though some reductions in billfish mortality were also anticipated. The

proposed Florida Straits closure was rejected in the Final HMS FMP

because NMFS concurred with public comments that indicated that the

area proposed was too small to be effective at reducing bycatch and

incidental catch of all species of concern and because NMFS agreed that

a more comprehensive assessment of the bycatch problem was warranted.

Commercial and recreational fishermen and representatives of

environmental groups expressed concerns that fishing effort would be

displaced into adjacent ocean areas where bycatch rates of certain

species were likely to be similar to, or higher than, those rates in

the proposed closed area

cern and because NMFS agreed that

a more comprehensive assessment of the bycatch problem was warranted.

Commercial and recreational fishermen and representatives of

environmental groups expressed concerns that fishing effort would be

displaced into adjacent ocean areas where bycatch rates of certain

species were likely to be similar to, or higher than, those rates in

the proposed closed area. NMFS agreed that further analysis of the

effects of reallocation of effort was needed.

NMFS indicated in the final HMS FMP and Billfish Amendment that a

more comprehensive approach to time-area closures would be undertaken

after further analysis of the data and consultation with the HMS and

Billfish Advisory Panels (APs). NMFS held a combined meeting of the HMS

and Billfish APs on June 10-11, 1999, to discuss possible alternatives

for a proposed rule under the framework provisions of the HMS FMP. At

the AP meeting, presentations were provided by members of the APs, or

their representatives, and by the HMS Division on various time-area

strategies.

The AP members were generally supportive of the time-area

management strategy, and asked NMFS at the conclusion of the meeting to

develop a written document outlining all analytical methods and results

of the time-area evaluation. The APs also provided several comments on

temporal and/or spatial components that NMFS should consider further in

its analyses. The AP's comments and suggestions were included in the

development of a draft Technical Memorandum, which was made available

to the public on November 2, 1999 (64 FR 59162).

Legal Challenge to FMPs

ning all analytical methods and results

of the time-area evaluation. The APs also provided several comments on

temporal and/or spatial components that NMFS should consider further in

its analyses. The AP's comments and suggestions were included in the

development of a draft Technical Memorandum, which was made available

to the public on November 2, 1999 (64 FR 59162).

Legal Challenge to FMPs

After issuance of the final regulations to implement the HMS FMP

and Billfish FMP Amendment, the National Coalition for Marine

Conservation and several other groups filed suit in U.S. District Court

for the District of Columbia challenging the bycatch and rebuilding

provisions. Plaintiffs asked the Court to enter a declaratory judgment

that NMFS violated the Magnuson-Stevens Act and the APA and to ``order

the defendants, as expeditiously as possible and by a date certain, (1)

to evaluate adequately the practicability of conservation and

management measures that could minimize highly migratory species

bycatch; (2) to require practicable conservation and management

measures that minimize highly migratory species bycatch; (3) to

establish an adequate bycatch reporting methodology; and (4) to set

forth conservation and management measures to rebuild the blue and

white marlin fisheries.'' In a negotiated stay of the proceedings of

the suit, NMFS committed to publishing a proposed rule on or by

December 15, 1999, to address bycatch of billfish and undersized

swordfish.

Marine Mammal Protection Act (MMPA)

catch; (3) to

establish an adequate bycatch reporting methodology; and (4) to set

forth conservation and management measures to rebuild the blue and

white marlin fisheries.'' In a negotiated stay of the proceedings of

the suit, NMFS committed to publishing a proposed rule on or by

December 15, 1999, to address bycatch of billfish and undersized

swordfish.

Marine Mammal Protection Act (MMPA)

Under procedures established by the MMPA, the Atlantic pelagic

longline fishery has been listed as a Category I fishery due to the

frequency of incidental mortality and serious injury to marine mammals

(predominantly pilot whales which are considered a strategic stock).

Based on 1991 through 1995 observer data (the most recent data

considered for this listing), pelagic longline gear hooked 14 different

species of marine mammals.

In 1994, the MMPA was reauthorized, establishing the Take Reduction

Team framework. The Atlantic Offshore Cetacean Take Reduction Team

(AOCTRT) was formed in May 1996 to address protected species bycatch by

the Category I Atlantic pelagic fisheries (i.e., driftnet, longline,

and pair trawl fisheries that target highly migratory species).

Observer data collected since 1991 considered by the AOCTRT indicate

that marine mammal interaction rates are high in the pelagic longline

fishery and that effort has expanded since 1985.

The take reduction plan was submitted to NMFS in November, 1996. In

accordance with section 118(f) of the MMPA, that plan contained

measures to address the bycatch of strategic stocks of marine mammals.

The consensus plan recommended a broad range of regulatory and non-

regulatory bycatch reduction measures, including, but not limited to,

gear modifications, time-area closures and educational workshops. NMFS

implemented some of these proposed measures in the HMS FMP (e.g.,

limiting the length of pelagic longlines in the Mid-Atlantic Bight,

requiring vessels to move after an interaction with a protected

species)

ecommended a broad range of regulatory and non-

regulatory bycatch reduction measures, including, but not limited to,

gear modifications, time-area closures and educational workshops. NMFS

implemented some of these proposed measures in the HMS FMP (e.g.,

limiting the length of pelagic longlines in the Mid-Atlantic Bight,

requiring vessels to move after an interaction with a protected

species). In the final HMS FMP, NMFS noted that additional reductions

in takes of marine mammals could occur with closures of certain fishing

areas during times of high interaction rates.

Endangered Species Act (ESA)

Loggerhead sea turtles are considered threatened under the ESA, and

leatherback and Kemp's Ridley sea turtles are considered endangered.

The Atlantic pelagic longline fishery interacts with all of these

species. On April 23, 1999, NMFS concluded that the pelagic longline

fishery may adversely affect, but is not likely to jeopardize the

continued existence of any endangered or threatened species under NMFS

jurisdiction. On the approximately 5 percent of trips with at-sea

observers from 1993 through 1997, a total of 470 sea turtles was

observed caught by pelagic longline fishermen. Although most turtles

were released alive, NMFS remains concerned about serious injuries of

turtles hooked on pelagic longline gear.

NMFS has responded to requirements under the ESA by implementing

the terms and conditions of the Biological Opinion and Incidental Take

Statement for the pelagic longline fishery. NMFS selects a target of 5

percent of pelagic longline trips for observer coverage, records

information on the condition of sea turtles and marine mammals when

released on observed trips, and supports research on turtle capture

rates as they relate to hook types

by implementing

the terms and conditions of the Biological Opinion and Incidental Take

Statement for the pelagic longline fishery. NMFS selects a target of 5

percent of pelagic longline trips for observer coverage, records

information on the condition of sea turtles and marine mammals when

released on observed trips, and supports research on turtle capture

rates as they relate to hook types. NMFS continues to hold educational

workshops for pelagic longline fishermen and has distributed turtle and

marine mammal handling instructions in an attempt to increase the

survival of protected species through education on proper release

techniques.

To the extent that turtle interactions occur at higher rates in

certain fishing areas at particular times, time-area closures for

pelagic longline fishing could increase or reduce turtle takes. NMFS,

therefore, considered the

potential impacts of alternative closed areas on the expected rates of

turtle interactions. In addition, NMFS considered gear/fishing

modifications that might further reduce turtles takes.

Bycatch Reduction Alternatives

NMFS considered three alternative actions to reduce bycatch and/or

bycatch mortality in the Atlantic HMS pelagic longline fishery: status

quo, gear modifications that would decrease hook-ups and/or increase

survival of bycatch species, and prohibiting longline fishing in areas

of high bycatch or incidental catch rates. NMFS considered gear

modifications beyond those examined during development of the HMS FMP.

NMFS also considered a broad range of closures, both in terms of area

and time.

NMFS rejected the status quo because NMFS is required to minimize

bycatch and bycatch mortality under the Magnuson-Stevens Act to the

extent practicable

longline fishing in areas

of high bycatch or incidental catch rates. NMFS considered gear

modifications beyond those examined during development of the HMS FMP.

NMFS also considered a broad range of closures, both in terms of area

and time.

NMFS rejected the status quo because NMFS is required to minimize

bycatch and bycatch mortality under the Magnuson-Stevens Act to the

extent practicable. And, although NMFS, under the Endangered Species

Act and the Marine Mammal Protection Act, has been working with

fishermen to decrease interactions with endangered sea turtles and

strategic stocks of marine mammals and to increase chances of survival

for these animals when released from longline gear, NMFS has determined

that further action to reduce bycatch mortality is needed. While this

proposed rule is not intended to directly address bycatch mortality of

protected species, NMFS has carefully analyzed the alternatives to

ensure that the impacts on protected species would be minimized.

Gear Modifications

NMFS considered various gear modifications, including the

restriction on the use of live bait, modifications to hook spacing on

the mainline, a requirement to use circle hooks, and limitations on

soak time or timing/placement of gear. Although experience with these

gear modifications indicates possible reductions in bycatch and/or

bycatch mortality, data are insufficient to conclude that gear

modifications alone would adequately meet the objective of reduced

mortality for all of the species of concern. Given the increased

fishing costs and enforcement issues associated with some of these

alternatives, NMFS has rejected gear modifications at this time and

prefers to assess the effectiveness of time-area closures while

continuing to conduct and support gear research.

Effort Reduction

difications alone would adequately meet the objective of reduced

mortality for all of the species of concern. Given the increased

fishing costs and enforcement issues associated with some of these

alternatives, NMFS has rejected gear modifications at this time and

prefers to assess the effectiveness of time-area closures while

continuing to conduct and support gear research.

Effort Reduction

NMFS rejected the banning all pelagic longline fishing by U.S.

vessels because of the significant adverse economic impact on

fishermen, support services and seafood dealers, and increased costs to

consumers. Additionally, a ban on longlining might preclude full

harvest of the U.S. swordfish quota, and as such, would be inconsistent

with legal requirements that do not allow for regulations that have the

effect of decreasing an ICCAT quota or that do not provide fishermen

with a reasonable opportunity to harvest an ICCAT quota. NMFS prefers

instead to restrict pelagic longline fishing in areas where bycatch and

incidental catch rates are the highest and thus still allow for pelagic

longlining in other areas.

However, even with these proposed time-area closures to reduce

bycatch rates, NMFS may need to consider future reductions of pelagic

longline effort to meet bycatch reduction and stock rebuilding goals

for all affected species. While reductions in the pelagic longline

fleet have been achieved with the limited access program implemented by

the HMS FMP, further reductions could be achieved through attrition of

current limited access permits, landings criteria for renewal of

permits, or a vessel buy back program. NMFS has not included any of

these measures in this rulemaking. However, NMFS is aware of three

legislative proposals recently introduced in the 106th

Congress (S1911, H.R. 3331, and H.R. 3390) to reduce bycatch and

overall effort in the longline fleet

ould be achieved through attrition of

current limited access permits, landings criteria for renewal of

permits, or a vessel buy back program. NMFS has not included any of

these measures in this rulemaking. However, NMFS is aware of three

legislative proposals recently introduced in the 106th

Congress (S1911, H.R. 3331, and H.R. 3390) to reduce bycatch and

overall effort in the longline fleet. Specifically, each of these bills

appears to provide conservation benefits to highly migratory and other

fish species, to reduce negative fishing interactions between the

longline and recreational fishermen, and to reduce the number of

longline fishing vessels through a buy back program. The agency finds

these objectives laudable.

Evaluation of Closed Areas

NMFS considered a number of factors when examining time-area

closures as a means of reducing bycatch. In assessing the effects of

closures, NMFS established three objectives: (1) to maximize the

reduction in the incidental catch of billfish and of swordfish less

than 33 lb (15 kg) dressed weight; (2) to minimize the reduction in the

target catch of swordfish and other marketable species; and (3) to

ensure that the incidental catch of other species (e.g., bluefin tuna,

mammals, turtles) either remains unchanged or is reduced. It was

recognized that all three objectives might not be met to the maximum

extent and that conflicting outcomes would require some balancing of

the objectives.

NMFS analyzed a wide range of areas to evaluate the effect of

closures on bycatch rates. After consultation with the AP, NMFS focused

on combinations of Gulf of Mexico and South Atlantic Bight areas that

would most closely meet the bycatch reduction objectives. The South

Atlantic Bight was targeted because in recent years a high percentage

of the swordfish hooked in that area were undersized and were

discarded. The Gulf of Mexico area was investigated initially as an

area of high marlin bycatch

on with the AP, NMFS focused

on combinations of Gulf of Mexico and South Atlantic Bight areas that

would most closely meet the bycatch reduction objectives. The South

Atlantic Bight was targeted because in recent years a high percentage

of the swordfish hooked in that area were undersized and were

discarded. The Gulf of Mexico area was investigated initially as an

area of high marlin bycatch. Preliminary analyses were made available

to the AP members and to the general public in the draft Technical

Memorandum (see ADDRESSES).

Based on catch and bycatch data reported in vessel logbooks, NMFS

constructed several potential closed areas of differing sizes both in

the Gulf of Mexico and in the South Atlantic Bight. The delineation of

the areas and a summary of reported catch and effort in each area are

contained in the draft SEIS (see ADDRESSES) and are not repeated here.

Assuming an area would be closed, NMFS first estimated the target catch

and bycatch that would not occur during the time of the closure based

on average catch rates reported in vessel logbooks over the period from

1995 to 1997. However, it is realistic to assume that the effort

(longline sets) normally expended in the potential closed area would be

redistributed elsewhere. Therefore, in analyzing the degree to which

various time-area closures achieve the objectives, it was necessary to

consider effort redistribution. The results of the analysis under the

``no-redistribution'' and ``redistribution of effort'' models are

described at length in the draft Technical Memorandum and Draft SEIS

(see ADDRESSES) and are not repeated here.

After analyzing the net effects on catch and bycatch, NMFS is

proposing to close a mid-sized area in South Atlantic Bight (generally

between 24 deg.00' N. lat. and 34 deg.00' N. lat. and within 76 deg.00'

W. long and 82 deg.00' W. long.) during January through December and a

mid-sized area in the Gulf of Mexico (north of 26 deg.00' N. lat. and

west of 90 deg.00' W

and are not repeated here.

After analyzing the net effects on catch and bycatch, NMFS is

proposing to close a mid-sized area in South Atlantic Bight (generally

between 24 deg.00' N. lat. and 34 deg.00' N. lat. and within 76 deg.00'

W. long and 82 deg.00' W. long.) during January through December and a

mid-sized area in the Gulf of Mexico (north of 26 deg.00' N. lat. and

west of 90 deg.00' W. long.) during March through September. The use of

pelagic longline gear by U.S. commercial fishermen that target HMS

(those vessels with HMS permits) would be eliminated in approximately

99,810 square miles of ocean by the South Atlantic closure and and

96,560 square miles of ocean by the Gulf of Mexico closure. Under the

assumption of no-effort redistribution, NMFS estimates reductions of

incidental catch and bycatch as follows:

40 percent for swordfish discards; 22 percent for blue marlin discards;

20 percent for white marlin discards; 40 percent for sailfish discards;

60 percent for bluefin tuna discards; 4 percent for pelagic sharks

discards; 46 percent for large coastal sharks discards; and 5 percent

for sea turtles. Without shifting fishing effort that would otherwise

be applied in the closed areas, landings of target and marketable

incidental catch would be reduced, including: swordfish, 24 percent;

bigeye, albacore, yellowfin, and skipjack (BAYS) tunas, 17 percent;

dolphin, 59 percent, pelagic sharks, 12 percent; and large coastal

sharks, 37 percent.

Under one assumption of redistribution of effort for the same

closure, NMFS estimates that reductions in bycatch and incidental

catches would be 22 percent for swordfish discards and 49 percent for

bluefin tuna discards. Incidental landings of dolphin would be reduced

by 34 percent under this closure alternative, and swordfish would be

reduced by 6 percent, but landings would increase by 6 percent for

pelagic sharks landings and 9 percent for BAYS tunas

closure, NMFS estimates that reductions in bycatch and incidental

catches would be 22 percent for swordfish discards and 49 percent for

bluefin tuna discards. Incidental landings of dolphin would be reduced

by 34 percent under this closure alternative, and swordfish would be

reduced by 6 percent, but landings would increase by 6 percent for

pelagic sharks landings and 9 percent for BAYS tunas. The bycatch of

sea turtles would also increase by almost 8 percent under the effort

redistribution scenario. NMFS expects that at least some fishing effort

would be shifted to open areas and, therefore, considers the

redistribution model to be the more realistic outcome.

Although a reduction of 10 percent is estimated for sailfish,

discards of other Atlantic billfish would increase if effort is

redistributed at random from the closed area: 5 percent for blue

marlin; 6 percent for white marlin. However, the random effort

redistribution model does not account for the generally smaller size of

vessels that currently fish off the southeast U.S. Atlantic coast and

it is unlikely that these vessels would be redistributed into the open

Caribbean or southwest Atlantic Ocean where blue marlin, white marlin,

and sailfish discard rates generally increase. Therefore, the impact of

effort redistribution on Atlantic billfish discards is probably

overestimated. However, NMFS will continue to assess reduced or

alternative closed areas that would more effectively decrease billfish

discard rates overall and minimize displacement of vessels into areas

where billfish discard rates are higher.

Effort redistributed to the Mid-Atlantic Bight area is likely to

encounter more mammals and turtles than if those longline sets were

made in the closed areas. Similarly, sets redistributed to the

northeast areas might encounter more sea turtles than if the sets were

made in the areas proposed for closure

and minimize displacement of vessels into areas

where billfish discard rates are higher.

Effort redistributed to the Mid-Atlantic Bight area is likely to

encounter more mammals and turtles than if those longline sets were

made in the closed areas. Similarly, sets redistributed to the

northeast areas might encounter more sea turtles than if the sets were

made in the areas proposed for closure. However, the projected

increases in turtle takes under a random effort redistribution scenario

result from vessels affected by the closures shifting trips to the

Grand Banks, an area of high turtle takes. Movement of most of these

vessels to the Grand Banks is an unlikely scenario due to the smaller

size of the vessels with home ports in the proposed areas. These

smaller vessels are not outfitted for distant water trips and would

more likely shift effort to adjacent coastal areas where turtle takes

are less frequent. In addition, it is not certain that the limited

number of larger vessels could necessarily increase effort to a

significant degree in the Grand Banks area as the fishing season is

restricted in duration by weather and availability of swordfish.

In considering the impacts of area closures, it is recognized that

larger closed areas in the Gulf and South Atlantic could cause effort

to shift to areas with greater turtle takes (Grand Banks) and billfish

bycatch (Caribbean Sea). Conversely, smaller closed areas would not

shift as much fishing effort away from areas where bluefin tuna and

undersized swordfish interactions are problems. On balance, NMFS is

proposing a mid-size closed area to avoid the areas of highest

interactions with some species of concern while still affording

fishermen an opportunity to fish in areas that are closer to normal

operations and that do not inordinately increase takes of other species

of concern. NMFS requests comments specifically on how the boundaries

and size of the closed areas could be modified to mitigate the impacts

on turtles as well as billfish

e areas of highest

interactions with some species of concern while still affording

fishermen an opportunity to fish in areas that are closer to normal

operations and that do not inordinately increase takes of other species

of concern. NMFS requests comments specifically on how the boundaries

and size of the closed areas could be modified to mitigate the impacts

on turtles as well as billfish.

The time-area closures in this proposed rule differ from those in

the bills before Congress referenced above. However, different closed

areas could be considered as further analysis of current catch, bycatch

and incidental catch rates helps to pinpoint problem areas or as the

effects of gear modifications or potential vessel buyouts are

determined to result in reduced interactions. For example, the NMFS

proposal includes more of the ``Charleston Bump'' area in an attempt to

address concerns that juvenile swordfish fish move in and out of that

area associated with oceanographic conditions. Closure of an area

encompassing at least part of the ``Charleston Bump'' would enhance

bycatch reduction.

NMFS specifically requests public comment on whether the size and

boundaries of the various closed areas will accomplish the bycatch

reduction goals. Under the no-displacement model, NMFS estimates that

the proposed time-area closure would result in a decrease in gross

exvessel revenues of up to $14 million and approximately 20 percent of

the vessel operators would lose half of their gross income. Recognizing

the significant economic impacts of this proposed rule, NMFS also seeks

comments on how to mitigate those impacts, including the need for a

vessel buyout program, as suggested in the legislative proposals.

Facilitation of Enforcement

than pelagic longlines. This would reduce the incentive for

HMS-permitted vessels to target other species with pelagic longline

gear if incidental catch of HMS cannot be retained. NMFS has requested

that the Fishery Management Councils review this proposed rule and

assess the implications of the directed pelagic longline fishery for

dolphin and wahoo on the proposed bycatch reduction measures. The

Councils may wish to consider complementary actions to enhance the

bycatch reduction afforded by this proposed rule.

NMFS analyzed economic impacts to all swordfish limited-access

permit holders (includes all tuna and swordfish fishermen using

longline gear) who reported pelagic longline effort in 1997, regardless

of their target species. NMFS requests comments on the economic impacts

of these proposed measures on vessels that do not currently hold tuna

or swordfish limited-access permits and that may otherwise have

targeted dolphin and wahoo in the proposed closed areas.

Time-area closures provide NMFS with an effective tool to reduce

bycatch while still allowing fishermen to pursue HMS in other areas or

HMS and other species in these closed areas with other authorized

fishing gears. Given the high costs to NMFS of 100-percent observer

coverage, NMFS requires vessel monitoring systems (VMS) on all vessels

that have pelagic longline gear on board as of June 1, 2000. VMS will

be used to assist in enforcing closed areas. NMFS proposes that pelagic

longline vessels be allowed to transit the proposed closed areas with

HMS on board provided the VMS is operating consistent with existing

regulations at 50 CFR 635.69.

In order to effectively enforce the closed areas for vessels issued

swordfish and shark permits, NMFS must consider the impacts of pelagic

longline fishing activities in all waters, regardless of whether

conducted within or beyond the boundaries of the EEZ

transit the proposed closed areas with

HMS on board provided the VMS is operating consistent with existing

regulations at 50 CFR 635.69.

In order to effectively enforce the closed areas for vessels issued

swordfish and shark permits, NMFS must consider the impacts of pelagic

longline fishing activities in all waters, regardless of whether

conducted within or beyond the boundaries of the EEZ. In the

consolidated regulations issued to implement the HMS FMP (64 FR 29090,

May 28, 1999), NMFS established a condition of issuing a shark permit

to a qualifying vessel such that persons aboard the vessel would be

subject to Federal shark regulations regardless of where the fishing

activity occurs. Similarly, NMFS now proposes that the same condition

apply to the issuance of a swordfish permit. If this provision is

implemented, the fishing, catch and gear requirements of this part with

respect to swordfish would apply to person aboard permitted vessels

within the EEZ, landward of the EEZ, or outside the EEZ. As swordfish

limited access permits have already been issued without such condition,

NMFS solicits comment from those permit holders on the need for, and

consequences of, future attachment of this condition.

Conclusions

NMFS proposes to prohibit pelagic longline fishing in areas with

relatively higher bycatch rates because this alternative would best

address the conservation and management objectives described above.

Should future research indicate that practicable gear modifications

would reduce bycatch in a comparable manner, NMFS will consider those

gear modifications in conjunction with, or as an alternative to, time-

area closures. The preferred alternative appropriately meets the

objectives of the Magnuson-Stevens Act and has the greatest likelihood

of reducing bycatch while minimizing, to the extent pos sible, adverse

impacts on fishing revenues and costs

fications

would reduce bycatch in a comparable manner, NMFS will consider those

gear modifications in conjunction with, or as an alternative to, time-

area closures. The preferred alternative appropriately meets the

objectives of the Magnuson-Stevens Act and has the greatest likelihood

of reducing bycatch while minimizing, to the extent pos sible, adverse

impacts on fishing revenues and costs.

NMFS notes that there are similarities between the time-area

closures for pelagic longline gear contained in this proposed rule and

those contained in legislation pending before Congress. There are also

significant differences, however, particularly in the longer closed

period for the Gulf of Mexico. NMFS recognizes that there may be a

rational basis for modifying the time-area closures proposed in this

rule in order to alleviate some biological, social, or economic impacts

for which limited information was available at the time of developing

this rule. Therefore, NMFS is specifically soliciting public comment

and scientific information on such modifications.

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 concluded that this proposed rule to prohibit pelagic

longline fishing in the closed areas would have a significant economic

impact on a substantial number of small entities. Accordingly, an

initial regulatory flexibility analysis has been prepared.

The initial regulatory flexibility analysis assumes that fishermen,

during the time they would otherwise be pelagic longline fishing in the

designated areas would instead: (1) make longline sets in other areas,

hing in the closed areas would have a significant economic

impact on a substantial number of small entities. Accordingly, an

initial regulatory flexibility analysis has been prepared.

The initial regulatory flexibility analysis assumes that fishermen,

during the time they would otherwise be pelagic longline fishing in the

designated areas would instead: (1) make longline sets in other areas,

(2) participate in other commercial fisheries, or (3) exit commercial

fishing. As of October 28, 1999, there were 443 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. Under the preferred alternative, each of the above scenarios

results in greater than a 5-percent decrease in gross revenues for more

than 20 percent of the affected entities, or would cause greater than 2

percent of the affected entities to be forced to cease operations.

The other alternatives considered include the status quo, gear

modifications, and a ban on pelagic longline fishing by U.S. vessels in

the Atlantic Ocean. Although the status quo and gear modification

alternatives might have lesser economic impacts on participants in the

pelagic longline fishery, those alternatives either do not reduce

bycatch to the extent that NMFS expects to be achieved by the time-area

closures or present enforcement difficulties. 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.

The proposed action would not impose any additional reporting or

recordkeeping requirements on vessel operators or dealers

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.

The proposed action would not impose any additional reporting or

recordkeeping requirements on vessel operators or dealers. Vessel

logbooks, dealer reports, observer notification, and VMS requirements

applicable to the HMS fisheries are all currently approved by the

Office of Management and Budget under existing regulations.

NMFS reinitiated formal consultation for all Highly Migratory

Species commercial fisheries on May 12, 1998, under section 7 of the

ESA. In a Biological Opinion issued on April 23, 1999, NMFS concluded

that operation of the Atlantic pelagic longline fishery may adversely

affect, but is not likely to jeopardize, the continued existence of any

endangered or threatened species under NMFS' jurisdiction. While this

proposed rule, if implemented, would eliminate interactions between

pelagic longline fishermen and endangered sea turtles in the closed

areas, the overall effect on interaction rates will depend on

fishermen's responses to the closures in terms of shifting pelagic

longline effort or fishing for other species with other gear. NMFS is

concerned that turtle takes could increase under certain scenarios of

effort displacement and has reinitiated consultation under section 7 of

the ESA.

This proposed rule has been determined to be not significant for

purposes of E.O. 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: December 10, 1999.

Penelope D. Dalton,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 635, is

proposed to be amended as follows:

50 CFR Part 635

Fisheries, Fishing, Fishing vessels, Foreign relations,

Intergovernmental relations, Penalties, Reporting and recordkeeping

requirements, Statistics, Treaties.

Dated: December 10, 1999.

Penelope D. Dalton,

Assistant Administrator for Fisheries, 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, the definition of ``high-flyer'' is revised and

new definitions for ``Gulf of Mexico closed area'' and ``Southeastern

United States closed

area'' are added in alphabetical order to read as follows:

Sec. 635.2 Definitions.

* * * * *

Gulf of Mexico closed area means the Atlantic Ocean area shoreward

of the outer boundary of the EEZ that is both north of 26 deg.00' N.

lat. and west of 90 deg.00' W. long.

* * * * *

High-flyer means a flag, radar reflector or radio beacon

transmitter, suitable for attachment to a longline to facilitate its

location and retrieval.

* * * * *

Southeastern United States closed area means the Atlantic Ocean

area seaward of the baseline from which the territorial sea is measured

and shoreward of the outer boundary of the EEZ from a point

intersecting the coast at 34 deg.00' N. lat. near Wilmington Beach,

North Carolina and proceeding due east to connect by straight lines the

following coordinates in the order stated: 34 deg.00' N. lat.,

76 deg.00' W. long.; 31 deg.00' N. lat., 76 deg.00' W. long.;

31 deg.00' N. lat., 78 deg.00' W. long.; 28 deg.17' N. lat., 79 deg.00'

W. long.; then proceeding along the boundary of the EEZ to 24 deg.00'

N. lat., 81 deg.50' W. long.; then proceeding due north to intersect

the coast near Key West, Florida.

* * * * *

3. In Sec. 635.4, paragraph (a)(10) is added, and paragraph(e)(4)

is removed, to read as follows:

Sec. 635.4 Permits and fees.

' W. long.;

31 deg.00' N. lat., 78 deg.00' W. long.; 28 deg.17' N. lat., 79 deg.00'

W. long.; then proceeding along the boundary of the EEZ to 24 deg.00'

N. lat., 81 deg.50' W. long.; then proceeding due north to intersect

the coast near Key West, Florida.

* * * * *

3. In Sec. 635.4, paragraph (a)(10) is added, and paragraph(e)(4)

is removed, to read as follows:

Sec. 635.4 Permits and fees.

* * * * *

(a) * * *

(10) Permit condition. An owner issued a swordfish or shark permit

pursuant to this part must agree, as a condition of such permit, that

the vessel's swordfish or shark fishing, catch and gear are subject to

the requirements of this part during the period of validity of the

permit, without regard to whether such fishing occurs in the EEZ, or

outside the EEZ, and without regard to where such swordfish or shark,

or gear are possessed, taken or landed. However, when a vessel fishes

within the waters of a state that has more restrictive regulations on

swordfish or shark fishing, persons aboard the vessel must abide by the

state's more restrictive regulations.

4. In Sec. 635.21, the first sentence of paragraph (c) is removed

and paragraph(c)(2) is revised to read as follows:

Sec. 635.21 Gear operation and deployment restrictions.

* * * * *

(c) Pelagic longlines. * * *

(2) A pelagic longline may not be fished or deployed from a vessel

issued a permit under this part in the Northeastern United States

closed area from June 1 through June 30 each calendar year, in the Gulf

of Mexico closed area from March 1 through September 30 each calendar

year, or in the Southeastern United States closed area at any time.

* * * * *

5. In Sec. 635.69 (which will be effective June 1, 2000), paragraph

(a) is amended by adding a second and third sentence to read as

follows:

Sec. 635.69 Vessel monitoring systems.

d area from June 1 through June 30 each calendar year, in the Gulf

of Mexico closed area from March 1 through September 30 each calendar

year, or in the Southeastern United States closed area at any time.

* * * * *

5. In Sec. 635.69 (which will be effective June 1, 2000), paragraph

(a) is amended by adding a second and third sentence to read as

follows:

Sec. 635.69 Vessel monitoring systems.

(a) Applicability. *** A vessel is considered to have pelagic

longline gear on board when a power-operated longline hauler, hi-

flyers/floats, and gangions are on board. Removal of any one of these

three elements constitutes removal of pelagic longline gear.

* * * * *

6. In Sec. 635.71, paragraph (a)(30) is added to read as follows:

Sec. 635.71 Prohibitions.

* * * * *

(30) Deploy or fish with a pelagic longline greater than the

maximum length or in any closed area as specified at Sec. 635.21(c)(1)

or (2).

[FR Doc. 99-32588 Filed 12-13-99; 11:53 am]

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