Federal Register / Vol. 62, No. 212 / Monday, November 3, 1997 / Proposed Rules 59335

Dated: October 28, 1997.

Thomas Bauer,

Acting Regional Director, Region 2, Fish and

Wildlife Service.

[FR Doc. 97–28981 Filed 10–31–97; 8:45 am]

BILLING CODE 4310–55–P

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.

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
59336 Federal Register / Vol. 62, No. 212 / Monday, November 3, 1997 / Proposed Rules

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°51’ N latitude). This is a known highuse 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°00’ N

latitude (approximately Savannah,

Georgia) south to 27°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 MidAtlantic 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 semiannual 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
Federal Register / Vol. 62, No. 212 / Monday, November 3, 1997 / Proposed Rules 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 § 222.34 is

proposed to be added to read as follows:

Subpart D—Special Prohibitions

§ 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]

BILLING CODE 3510–22–F